Gujarat High Court
Dahyabhai Jagmalbhai Harijan & vs State Of ... on 10 April, 2014
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya, J.B.Pardiwala
R/CR.A/1654/2008 CAV JUDGEMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1654 of 2008
With
CRIMINAL APPEAL NO. 1928 of 2008
With
CRIMINAL APPEAL NO. 2122 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. BHASKAR BHATTACHARYA
and
HONOURABLE MR.JUSTICE J.B.PARDIWALA
================================================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ? ================================================================ DAHYABHAI JAGMALBHAI HARIJAN & 1....Appellant(s) Versus STATE OF GUJARAT....Opponent(s)/Respondent(s) ================================================================ Appearance:
MR MC BAROT, ADVOCATE for the Appellant No. 1 - 2
MR TEJAS M BAROT, ADVOCATE for the Appellant(s) No. 1 - 2 MR KP RAVAL, APP for the Opponent(s)/Respondent(s) No. 1 Page 1 of 59 R/CR.A/1654/2008 CAV JUDGEMENT ================================================================ CORAM: HONOURABLE THE CHIEF JUSTICE MR.
BHASKAR BHATTACHARYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 10/04/2014 CAV JUDGEMENT (PER : HONOURABLE MR.JUSTICE J.B.PARDIWALA) As all the three captioned appeals arise from a common judgment and order dated 12th May, 2008 passed by the Additional Sessions Judge, Fast Track Court, Deesa, in Sessions Case No.35 of 2006, those were heard analogously and are being disposed of by this common judgment and order.
The Criminal Appeal No.1654 of 2008 is filed by the original accused no.4 Dahyabhai Jagmalbhai Harijan and the original accused no.6 Isabhai Shakrabhai Dabhi (Harijan).
The Criminal Appeal No.1928 of 2008 has been filed by the original accused no.1 Popatbhai Mohanbhai Dabhi (Harijan), whereas the Criminal Appeal No.2122 of 2008 has been filed by the State of Gujarat challenging the judgment and order passed by the trial Court acquitting the original accused nos.2 to 7 of the offence under Section 302 read with Page 2 of 59 R/CR.A/1654/2008 CAV JUDGEMENT Sections 143, 147, 148, 149 and 504 of the Indian Penal Code.
By filing the Criminal Appeal No.1928 of 2008, the accused-appellant (original accused no.1) Popatbhai Mohanbhai seeks to challenge the order of conviction and sentence passed by the trial Court for the offence punishable under Section 302 of the Indian Penal Code. The trial Court sentenced the accused-appellant to suffer life imprisonment and to pay a fine of Rs.100/-. In default of payment of fine, further simple imprisonment for one month has been imposed.
By filing the Criminal Appeal No.1654 of 2008, the accused appellants (original accused nos.4 and 6) seek to challenge the order of conviction and sentence passed by the trial Court holding them guilty of the offence under Section 325 of the Indian Penal Code. The trial Court has imposed simple imprisonment of six months with a fine of Rs.500/- for the offence under Section 325 of the Indian Penal Code. In default of payment of fine, further simple imprisonment for 15 days has been imposed.
I. Case of the Prosecution :Page 3 of 59
R/CR.A/1654/2008 CAV JUDGEMENT The accused persons were on inimical terms with the deceased and his family as there was a long standing dispute relating to a fence dividing their agricultural fields. On 29th November 2005 at around 8 O'clock in the morning, the accused persons are alleged to have formed an unlawful assembly and launched an attack on the deceased and his family members.
It is the case of the prosecution that on the day of the incident, the PW16 Kantaben Hirabhai Vihabhai, the complainant, was preparing tea for the guests in the morning at around 8 a.m. and at that point of time the PW18 Takhabhai Vihabhai was watering the plants and Fulabhai, the deceased, had gone to the house of other family members. The deceased Fulabhai and the PW18 Takhabhai had a quarrel with the original accused no.7, viz. Mohanbhai @ Bagu Javan Dabhi and his sons.
It is the case of the prosecution that the accused appellant Popatbhai hit a blow on the head of Fulabhai, the deceased, with a spade and the original accused no.7 Mohanbhai Dabhi (Harijan) hit a blow on the body of the PW19 Hirabhai with a stick. It is also the case of the prosecution that Page 4 of 59 R/CR.A/1654/2008 CAV JUDGEMENT the original accused no.2 Pradhanbhai and others were armed with sticks and sickle (dharia). The accused-appellant Dahyabhai Harijan, the original accused no.4, was armed with a sickle and he is alleged to have inflicted injury on the body of PW19 Hirabhai. The PW16 Kantaben lodged the First Information Report on 29th November 2005 Exh.119 at Agathara Police Station, stating that she was residing at the address stated in the complaint with her husband and children.
The PW16 has stated that they possessed an agricultural field.
The complainant and her brother-in-law Takhabhai are residing near the field. Her mother-in-law, father-in-law, the deceased, and Ranabhai resided in a house situated in the field on one side with their respective families. The complainant has further stated that the adjoining field is owned by Mohanbhai @ Bagubhai, the original accused no.7, and Mohanbhai Dabhi (Harijan) and his sons resided in the said agricultural field. She has further stated that on the day of the incident at around 8 O'clock in the morning she was at her house and as few guests had come at her house she was preparing tea to be served to the guests. The PW16, the complainant, has stated that at that point of time her brother-in-law Takhabhai was watering the crops and Fulabhai, the deceased, had gone to the house of his other relatives. She has further stated that Mohanbhai Page 5 of 59 R/CR.A/1654/2008 CAV JUDGEMENT Dabhi (Harijan) and his sons picked up a quarrel with Takhabhai and Fulabhai. She has stated that there was an altercation, as a result, her husband and her brother-in-law Ranabhai including her mother-in-law and father-in-law rushed at the spot where the accused persons were quarreling. She has stated that at that point of time the original accused no.7 Mohanbhai hit a blow with a stick on the hand of Fulabhai whereas Mohanbhai's son, viz. Popatbhai hit a blow on the head of Fulabhai with a spade. She has further stated that Mohanbhai hit a blow on the head of her husband, viz.
Hirabhai. According to her, the original accused no.2 Pradhanbhai had a stick in his hand and the others, viz.
Dinabhai, Dahyabhai Jagmalbhai, Ramabhai Punjabhai and Isabhai Shakrabhai had sticks and sickles in their hands. She has stated that they all came marching towards them to lay an assault. She has further stated that despite persuading, the accused persons continued with the fight. She has further stated that the original accused no.2 Pradhanbhai hit a blow on the body of her brother-in-law Takhabhai. Due to lot of commotion the guests who had come at the house of the complainant also came running at the spot of occurrence. She has stated that thereafter as her brother-in-law Fulabhai, the deceased, had sustained serious injuries, he was taken to the Page 6 of 59 R/CR.A/1654/2008 CAV JUDGEMENT dispensary in a jeep whereas she remained all alone at home.
The complainant thereafter learnt that her brother-in-law Fulabhai had been taken to Ahmedabad for further treatment.
On the complaint Exh.119 being lodged at the Police Station, the investigation had commenced. It appears from the materials on record that the deceased succumbed to the injuries on 8th December 2005 at the Civil Hospital, Ahmedabad. The inquest panchnama of the dead body Exh.99 was drawn in presence of the panch-witnesses. The scene of offence panchnama Exh.113 was drawn in presence of the panch-witnesses. The dead body of the deceased was sent for postmortem examination and the postmortem report Exh.78 revealed that the cause of death was cardiopulmonary failure as a result of complication due to the head injury.
II. Oral Evidence on record:
The PW1 Dr.Athar Hussain Wahidkhan, in his evidence Exh.12, has deposed that on 29th November 2005 he was on duty as a Medical Officer at the Deesa Civil Hospital. He has deposed that at that point of time one person, viz. Fulabhai Vihabhai Harijan was brought at the hospital by his relatives Page 7 of 59 R/CR.A/1654/2008 CAV JUDGEMENT without the police yadi. The PW1 has deposed that at that time, in the history, the relatives stated that someone had assaulted Fulabhai. The PW1 has deposed that on examination, he found the patient was in an unconscious state and he was not responding in any manner. He has deposed that his pupils had dilated and the functioning of all his organs had become very slow. He has further deposed that there was a hematoma in his left eye and on all four sides of the eye the skin had become black. He has deposed that he noted the following injuries on the body of Fulabhai, the deceased :
1. CLW at the line of saggital suture situated posteriorly, active bleeding, irregular shape, size 4cm x 3cm up to bone.
2. CLW on left temporal bone, irregular shape, size 1cm x 1cm x ½ cm, active bleeding.
3. CLW on left parietal bone, irregular shape, size 2cm x 1cm x 1cm, active bleeding.
The PW1 has deposed that he issued the medico-legal certificate Exh.14 with regard to the injuries sustained by Fulabhai. He has also deposed that the patient was referred to the Government Hospital at Palanpur for further examination and treatment. He has deposed that the injuries sustained by Page 8 of 59 R/CR.A/1654/2008 CAV JUDGEMENT Fulabhai can be caused if a blunt side of the spade is hit on the head. He has also deposed that all the three injuries can be caused by a hard and blunt object like a stick.
PW1 has deposed that on the same day one another person, viz. Takhabhai Vihabhai Parmar was also brought by his relatives at the hospital without the police yadi. In the history, the patient stated that someone had assaulted him and the patient complained of pain in his chest and stomach. The PW1 noted the following injuries on the body of Takhabhai :
1. Contusion on left forearm, situated dorsally at the middle, reddish in color, size 3cm x 2cm.
The PW1 has deposed that he issued the medico-legal certificate Exh.16 with regard to the injuries sustained by Takhabhai.
The PW1 has also deposed that on the same day one Hirabhai Vihabhai Parmar was brought at the hospital by his relatives without the police yadi and in the history Hirabhai stated that someone had assaulted him. The PW1 noted the following injuries on the body of Hirabhai : Page 9 of 59
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1. CLW on right parietal bone, irregular shape, active bleeding, size 2cm x 2cm x 1cm.
2. Contusion on left wrist joint, dorsally, reddish in colour, size 2cm x 2cm. o/e tenderness and swelling present.
The PW1 has deposed that he issued the medico-legal certificate Exh.18 with regard to the injuries sustained by Hirabhai.
The PW1 has deposed that on the same day at around 12 O'clock in the afternoon a person by name Pradhanbhai Mohanbhai Harijan (A2) was brought at the hospital by his relatives and in the history Pradhabhai stated that someone had assaulted him. The PW1 has deposed that he noted the following injuries on the body of Pradhanbhai Mohanbhai :
1. Contusion on right elbow, irregular shape, reddish in color, size 2cm x 1cm.
2. Contusion on left elbow, reddish in color, irregular shape, size 1cm x 1cm.
The PW1 has deposed that he issued the medico-legal Page 10 of 59 R/CR.A/1654/2008 CAV JUDGEMENT certificate Exh.20 with regard to the injuries sustained by Popatbhai Mohanbhai Dabhi.
The PW1 has further deposed that on the same day at around 12 O'clock in the afternoon one Mohanbhai Javabhai Harijan (A7) aged 65 years was brought at the hospital by his relatives and in the history it was stated that someone had assaulted him. The PW1 has deposed that Mohanbhai was conscious and he noted the following injuries on the body of Mohanbhai :
1. CLW on left parietal bone, directed vertically, active bleeding, size 6cm x 4cm x 2cm.
2. Contusion on left forearm, situated 2" above wrist joint on dorsal aspect, size 2cm x 2cm o/e swelling and tenderness present.
3. Lacerated wound on right forearm, dorsally at middle, size 1cm x 1cm, irregular shape, reddish in color.
He has deposed that the injured Mohanbhai Harijan was referred to the Government Hospital, Palanpur, for x-ray and further treatment. He has deposed that he has issued the medico-legal certificate Exh.14 with regard to the injuries Page 11 of 59 R/CR.A/1654/2008 CAV JUDGEMENT sustained by Mohanbhai.
The PW2 Dr.Babulal Kantilal Solanki, in his evidence Exh.29, has deposed that he was serving as a Medical Officer past 9 years at the Civil Hospital, Palanpur. On 29th November 2005 while he was on duty, one Hirabhai Vihabhai Dabhi was referred by the Deesa Civil Hospital for treatment. He has deposed that an x-ray was taken of Hirabhai Vihabhai and the x-ray revealed that there was no fracture. The PW2 has deposed that another x-ray of Hirabhai revealed fracture on the ring finger. After giving some treatment, Hirabhai was referred to the Civil Hospital at Ahmedabad. The PW2 has deposed that the injury sustained in the ring finger was a grievous injury which can be caused by a hard and blunt object and would take around 6 to 8 weeks to heal. He has deposed that he issued a medical certificate Exh.30 with regard to the injuries noted on the body of Hirabhai Dabhi. The PW2 has deposed that on the same day one Fulabhai Vihabhai Dabhi was also brought with a referred chit from the Deesa General Hospital. On examining Fulabhai, the PW2 found him to be semi-conscious. The x-ray of the head revealed that there was a fracture in the frontal bone. He has deposed that the patient Fulabhai was sent to the Ahmedabad Civil Hospital with a Page 12 of 59 R/CR.A/1654/2008 CAV JUDGEMENT referred chit as the injury sustained was of a grievous nature which can be caused by a hard and blunt object. He has deposed on being shown the muddamal article spade that if the reverse side of the spade is hit, then the injury sustained by Fulabhai can be caused. The PW2 produced the two x-ray Exhs.39 and 40. The PW2 has further deposed that on the same day one Takhabhai Vihabhai Parmar was referred by the Deesa General Hospital with a referred chit. He has deposed that the x-ray revealed that there was no fracture. On the request, the patient Takhabhai was referred to the Ahmedabad Civil Hospital with a referred chit. He has deposed that the injury sustained by Takhabhai can be caused by a hard and blunt object and would take about 8 to 10 days to heal. He has deposed that he issued a medical certificate Exh.41 regarding the treatment given to Takhabhai. The PW2 was shown the muddamal article stick, and on seeing the same, he deposed that the injury sustained by Takhabhai can be caused by such a stick. In his cross-examination, the PW2 has deposed that on 29th November 2005 at around 2 O'clock in the afternoon one Mohanbhai Javabhai Harijan (A7) was brought at the hospital with a referred chit issued by the Deesa Hospital. He has deposed that the patient Mohanbhai, in the history of assault, stated that he was beaten with sticks and sickle by one Page 13 of 59 R/CR.A/1654/2008 CAV JUDGEMENT Fulabhai Vihabhai, Hirabhai Vihabhai, Takhabhai Vihabhai and others. The PW2 has deposed that he noted the following injuries on the body of Mohanbhai :
1. Incised wound 3" x 1/4" x 1/8" on right middle of head vertical, bleeding present.
2. CLW 3 1/2" x 1/4" x 1/8" on region 1/2 " left lateral to injury no.(1), clotted blood present.
3. Oedema 2" x 1/2" x 1/4" on left forearm back lower part, reddish.
The PW2 has deposed that Mohanbhai was admitted in the hospital on 29th November 2005 and was discharged on 8th December 2005. He has deposed that the injuries sustained by Mohanbhai were grievous in nature. The injury no.1 can be caused by a sharp cutting weapon. The injury nos.2 and 3 can be caused by a hard and blunt object. He has deposed that the injury no.1 sustained by Mohanbhai can be caused by a sickle, whereas the injury nos.2 and 3 can be caused by sticks. The PW2 has deposed that the x-ray no.9175 of Mohanbhai revealed a probable fracture. The PW2 has further deposed that on the same day in the afternoon at around 2 O'clock one Pradhanbhai Mohanbhai Harijan (A2) was Page 14 of 59 R/CR.A/1654/2008 CAV JUDGEMENT referred by the Deesa General Hospital with a referred chit for treatment. The PW2 noted the following injuries on the body of Pradhanbhai Harijan :
1. Incised wound 1" x 1/2" x 1/4" on right elbow back lateral, bleeding present.
2. Pain - contusion 1" x 1/2 " left knee medially.
3. Oedema right little finger at root with abrasion 1/2"
x 1/4" at wab-side, The PW2 has deposed that the patient Pradhanbhai Mohanbhai Harijan (A2) was admitted in the hospital on 29th November 2005 as an indoor patient and was discharged on 5th December 2005. He has deposed that the injuries sustained by Pradhanbhai were simple in nature and the injury no.1 can be caused by a sharp cutting weapon, whereas the injury nos.2 and 3 can be caused by a hard and blunt object. He has deposed that the injury no.1 can be caused by weapon like a sickle, whereas injury nos.2 and 3 can be caused by a handle of the sickle as well as with a stick.
The PW3 Dr.Arvind Kantilal Kapadia, in his evidence Exh.52, has deposed that on 29th November 2005 the patients named Fulabhai Vihabhai Dabhi, Hirabhai Vihabhai Parmar and Page 15 of 59 R/CR.A/1654/2008 CAV JUDGEMENT Takhabhai Vihabhai Parmar were referred by the Palanpur Civil Hospital with a referred chit for further treatment. The PW3 has deposed that Fulabhai Vihabhai was unconscious and his condition was serious. He has further deposed that Fulabhai Vihabhai was admitted in the hospital as an indoor patient. He has deposed that on examination it was found that the parietal bone was fractured on the temporal region and a hair line fracture was also found. He has deposed that there were hematoma on the temporal region as well as on the frontal part. He has further deposed that on the same day one Takhabhai Vihabhai was referred by the Palanpur Civil Hospital with a referred chit and the examination of Takhabhai Vihabhai revealed the following injuries :
1. Abrasion on right little finger on hand.
2. Abrasion on right forearm lower 1/3 2cm x 1cm
3. Abrasion on right lower humerus 1cm x 1cm He has deposed that he issued a medical certificate Exh.57 with regard to the injuries and the treatment of Takhabhai Vihabhai. The PW3 has further deposed that on the same day one Hirabhai Vihabhai Parmar was referred by the Palanpur Civil Hospital with a referred chit. The PW3 noted the Page 16 of 59 R/CR.A/1654/2008 CAV JUDGEMENT following injuries on Hirabhai Vihabhai Parmar :
Blackening of the left eye.
Swelling at mandible region Stitched wound on mid parieto occipital region He has further deposed that the x-ray of the left hand revealed a fracture in the fourth and the fifth finger. The second x-ray revealed a fracture in the shaft of radius, fracture by styloid process ulna was also found. The PW3 produced the x-ray plates Exhs.59, 60 and 61.
The PW4 Dr.Pulkit Sureshbhai Modi, in his evidence Exh.69, has deposed that on 29th November 2005 he was on duty in the Emergency Orthopeadic Center of the Civil Hospital, Ahmedabad. He has deposed that at around 10:40 in the night one Hirabhai Vihabhai Parmar was referred by the Palanpur Civil Hospital with a referred chit. He has deposed that preliminary treatment was given to Hirabhai and the x-ray revealed fracture of the left hand elbow including fracture in the fourth and the fifth finger of the left hand. He has deposed that a surgery was performed on Hirabhai Vihabhai Parmar. On 4th December 2005, Hirabhai Vihabhai was Page 17 of 59 R/CR.A/1654/2008 CAV JUDGEMENT discharged from the hospital. He produced the case-papers of the treatment given to Hirabhai Vihabhai. He has deposed that the injuries sustained were grievous in nature.
The PW5 Dr.Avdhesh Pramodbhai Shukla, in his evidence Exh.71, has deposed that he was serving as a Resident Neurosurgeon at the Ahmedabad Civil Hospital. On 29th November 2005 while he was on duty, a person named Fulabhai Vihabhai Dabhi, deceased, was admitted as an indoor patient in the Neurosurgery Unit. He has deposed that the CT Scan report revealed the following injuries :
i) There was loss of excessive blood on the left hand side of the head. There was an extra dural hemorrhage and pressure on the brain.
ii) There was loss of blood near the ear, front of right side of the head and there was clotting of blood.
iii) On the right hand side of the head inside the brain there was swelling due to shock.
iv) There was subarachnoid hemorrhage.
v) In both the parietal bones there was a comminuted
fracture. In both the temporal bones there was
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linear fracture.
vi) Inside the brain pneumocrania (air inside the brain)
was found.
He has further deposed that on 30th November 2005 surgery was performed and the extradural hemorrhage which was found in the left temporal and parietal bone was removed.
The internal bleeding in the brain was arrested. After the surgery, there was no improvement in his overall health. He has deposed that on 30th November 2005 once again surgery had to be performed. The dura mater inside the brain had to be opened and the clotted blood was removed. On 4th December 2005, third surgery had to be performed of the head. The same was of the occipital bone. A part of the occipital bone was removed. The PW5 produced the x-rays Exh.72 and 74.
The PW6 Dr.Manishbhai Chimanbhai Sutaria, in his evidence Exh.76, has deposed that he was serving with the Civil Hospital, Ahmedabad past 2 years. On 8th December 2005, a dead body of one Fulabhai Vihabhai Dabhi was brought from the Civil Hospital, Shahibaug, for the purpose of postmortem. The PW6 has deposed that the postmortem Page 19 of 59 R/CR.A/1654/2008 CAV JUDGEMENT examination revealed the following external injuries on the dead body of the deceased :
1. Bedsore on sacral region 6 cm x 5 cm infected.
2. Bedsore on mid-thoracic vertebrae 2 cm x 1 cm.
3. Bedsore on left elbow joint posteriorly 3 cm x 1 cm.
4. Bedsore on right elbow joint posteriorly 3 cm x 3 cm.
5. Stitch wound on back of neck from occipital region upto C2 vertebrae 14 cm long.
6. Tracheostomy wound over neck 3 cm x 2 cm deep in trachea
7. Abrasion on left shoulder posteriorly 2 x 6 cm and 1 x 1 cm.
8. Contusion on occipital region 4 cm x 3cm.
9. Contusion and blackening of left eye
10. Abrasion on left cheek near mouth corner 1 x 1 cm.
11. Contusion on left side face near corner of mouth 1cm x 1cm
12. Stitch wound on head C shape start from left ear going upwards and backward and downwards total length 29 cm.
He has deposed that he noted the following internal injuries:
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1. hematoma under scalp (whole scalp)
2. craniotomy done, surgically bone removed on left parietal region 12 x 10 cm., bulging of brain matter from this gap of bone fracture of left and right parietal bone transverse, 6cm long in mid point depressed and compound fracture of left parietal and left occipital bone clotted blood between dura mater and scalp bone contusion on both side of hemisphere.
Intra-cranial haemorrhage.
He has further deposed that the cause of death was cardio-respiratory failure due to complications as a result of the head injury.
The PW7 Hansaji Khanaji Harijan is one of the panch- witnesses examined by the prosecution. However, the PW7 in her evidence Exh.81, failed to support the case of the prosecution and was declared as a hostile witness. Nothing turns around on the evidence of the PW7.
The PW8 Narsinhbhai Vanaji Patel has been examined as one of the panch-witnesses of the scene of offence panchnama. However, the PW8 in his evidence Exh.86, has failed to support the case of the prosecution and was declared Page 21 of 59 R/CR.A/1654/2008 CAV JUDGEMENT as a hostile witness.
The PW9 Nanjibhai Bhanabhai Parmar has been examined by the prosecution as one of the panch-witnesses to the inquest panchnama of the dead body of the deceased including the panchnama of the person of the two injured persons, viz. Takhabhai Vihabhai and Hirabhai Vihabhai. The PW9, in his evidence Exh.87, has deposed regarding the drawing of panchnama Exh.88.
The PW10 Jesungbhai Rajabhai has been examined as one of the panch-witnesses. The PW10, in his evidence Exh.90, has failed to support the case of the prosecution and has been declared as a hostile witness. The PW10 admitted his signature on the panchnama, however, he deposed that he had put his signature on a readymade panchnama Exh.91.
The PW11 Popatbhai Dharmabhai has also been examined as one of the panch-witnesses. The PW11, in his evidence Exh.93, has failed to support the case of the prosecution and has been declared as a hostile witness.
The PW12 Shankarji Viraji Prajapati has also been Page 22 of 59 R/CR.A/1654/2008 CAV JUDGEMENT examined as one of the panch-witnesses. The PW12, in his evidence Exh.94, has failed to support the case of the prosecution and has been declared as a hostile witness.
The PW13 Haribhai Sagthabhai has also been examined as one of the panch-witnesses by the prosecution. The PW13, in his evidence Exh.95, failed to support the case of the prosecution and has been declared as a hostile witness.
The PW14 Chhaganlal Uttamchand Shah has also been examined as one of the panch-witnesses. However, this witness also in his evidence Exh.97 failed to support the case of the prosecution and has been declared as a hostile witness.
The PW15 Madhabhai Mohanbhai Parmar has been examined as one of the panch-witnesses of the inquest panchnama Exh.99. The PW15 proved the inquest panchnama Exh.99.
The PW16 Kantaben Hirabhai Vihabhai is an important witness for the prosecution. The PW16 is the wife of the PW19 Hirabhai and the original first informant. The PW16 has deposed that her husband Hirabhai has three brothers. The Page 23 of 59 R/CR.A/1654/2008 CAV JUDGEMENT eldest viz. Ranabhai and thereafter Fulabhai, the deceased. The youngest is Takhabhai. At the time of the incident, they were residing in the field. She has also deposed that the other brothers of her husband were also residing in the field, whereas her father-in-law and mother-in-law were residing with Takhabhai, the youngest brother of her husband Hirabhai. She has deposed that the field in which they were residing was known as 'Delawaru khetar'. According to her, on the date of the incident at around 8 O'[clock in the morning she was at her house. As few guests had come to her house, she was preparing tea to be served to the guests. She has deposed that as guests had come to her house, the deceased Fulabhai had gone to the house of their other relatives to call them, and Takhabhai, at that point of time, was watering the field. She has deposed that Fulabhai, the deceased, after informing the other relatives, was returning and at that point of time, Fulabhai and Takhabhai had an altercation with Mohan Java (A7) and his sons. At that point of time, Pradhanbhai Mohanbhai (A2), Dinabhai Mohanbhai (A3), Popatbhai Mohanbhai (A1), Ramabhai Punjabhai (A5), Isabhai Shakrabhai (A6) and Dahyabhai Jagmalbhai (A4) were also quarreling. On hearing the commotion of the quarrel, her father-in-law, her mother-in-law and her husband Hirabhai also reached the Page 24 of 59 R/CR.A/1654/2008 CAV JUDGEMENT place where the altercation was going on. She has deposed that by that time her sister-in-law Manguben and her other sister-in-law Sauramben also arrived at the place of the incident. She has deposed that Popatbhai Mohanbhai (A1) had a spade in his hand and he inflicted injury on the head of Fulabhai, the deceased. She has deposed that Pradhanbhai Mohanbhai (A2) had a stick in his hand and Pradhanbhai Mohanbhai (A2) hit a blow with a stick on Takhabhai's head. She has deposed that Dahyabhai Jagmalbhai (A4) had a sickle in his hand and with the same he inflicted an injury on the hand of her husband Hirabhai. She has deposed that the others had stick in their hands. She has deposed that Mohan Java (A7) hit a blow on the body of her husband Hirabhai with a stick. She has deposed that due to the injury sustained by Fulabhai he was not able to get up. She has also deposed that they all pleaded for mercy before the assailants and, therefore, all the assailants thereafter went away with the weapons in their hand. She has deposed that thereafter her brother-in-law Fulabhai was taken to the hospital in a jeep. The other injured persons were also taken to the Deesa Government Hospital. She has deposed that the motive behind the incident is the long standing dispute between the two families regarding a fence dividing their respective fields.
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R/CR.A/1654/2008 CAV JUDGEMENT In her cross-examination, she denied the suggestion given to her that Mohan Java (A7) was all alone in his field and at that point of time her family members broke open the fence and entered the agricultural field of Mohan Java (A7) and attacked Mohanbhai. She also denied the suggestion that Mohanbhai sustained injuries on his head and other parts of the body. She also denied the suggestion that Mohanbhai (A7) fell down due to assault on him and started bleeding profusely. She denied the suggestion that on shouts being raised by Mohanbhai (A7), his son Popatbhai (A1) came at the place of occurrence all alone. She also denied the suggestion that when Fulabhai, the deceased, was on the verge of hitting a second blow on Mohanbhai (A7) with a sickle, at that point of time, with a view to save the life of Mohanbhai, Popatbhai (A1) had to hit a blow on Fulabhai, the deceased.
The PW17 Babuji Jethaji Prajapati has been examined as one of the panch-witnesses. However, the PW17 in his evidence Exh.101 failed to support the case of the prosecution and was declared as a hostile witness.
The PW18 Takhabhai Vihabhai has been examined as one Page 26 of 59 R/CR.A/1654/2008 CAV JUDGEMENT of the eye-witnesses to the incident being the brother of the deceased Fulabhai. The PW18 in his evidence Exh.104 has deposed on the same line with that of the PW16 Kantaben.
The same suggestions those which were given to the PW16 Kantaben were given to this witness also regarding the assault first on Mohanbhai (A7) and thereafter Popatbhai (A1) hitting a blow on the body of the deceased. However, such suggestions were denied by the PW18.
The PW19 Hirabhai Vihabhai has also been examined as one of the eye-witnesses to the incident. The PW19 in his evidence has also deposed on the same line with that of the PW16 and the PW18. The PW19 was also given the same suggestions like those which were given to the PW16 and the PW18 and the same were denied.
The PW19 in his evidence has deposed that the accused persons had also lodged a complaint against him and his brothers for assaulting the accused persons and the said complaint culminated in Sessions Case No.94 of 2006. Thus, this witness i.e. the PW19 admitted about the cross-case which was filed against him and his brothers.
Page 27 of 59
R/CR.A/1654/2008 CAV JUDGEMENT The PW20 Manjulaben Natvarbhai has been examined by the prosecution as one of the eye-witnesses. The PW20 happens to be the sister of the wife of the deceased. The PW20 in her evidence Exh.106 has also deposed practically on the same line with that of the other eye-witnesses.
The PW21 Kansliben Vishbhai is also one of the relatives of the deceased. The PW21 has also been examined as one of the eye-witnesses who, at the relevant point of time, claims to have been present at the house of the PW16 Kantaben. The PW21 in her evidence Exh.107 has also deposed on the same line with that of the other witnesses.
The PW22 Trikamlal Shakraji has been examined as one of the police witnesses. The PW22 has deposed regarding lodging of the complaint. This witness has deposed regarding the filing of the cross cases. This witness has deposed that Popatbhai (A1) had lodged an F.I.R. against the prosecution witnesses of the offences under Section 147, 148, 149, 323, 324 and 504 of the Indian Penal Code and the same was registered at Agathara Police Station vide CR.I. No.55 of 2005. On the other hand, a complaint was lodged against the Page 28 of 59 R/CR.A/1654/2008 CAV JUDGEMENT accused persons herein at Agathara Police Station of the offences under Sections 326, 323, 147, 148 and 149 of the Indian Penal Code and the same was registered as CR.I No.56 of 2005.
The PW23 Galababhai Godadbhai Patel has been examined to prove the map of the scene of offence prepared by him. The PW23 in his evidence Exh.112 produced the original map of the scene of offence Exh.113.
The PW24 Baldevbhai Somabhai Rabari is the Investigating Officer. This witness in his evidence Exh.24 has deposed that on 19th February 2005 he was on duty as a Police Sub-Inspector at Agathara Police Station and had visited the village Dhana in connection with the investigation of the CR.I. No.55 of 2005 registered for the offence under Section 324 of the Indian Penal Code. He has deposed that in the course of investigation of CR.I. No.55 of 2005, he learnt that the accused persons of CR.I. No.55 of 2005 had also sustained injuries and accordingly he recorded the F.I.R. of the PW16 Kantaben which was registered as CR.I. No.56 of 2005.
This witness, in his cross-examination, has deposed that Page 29 of 59 R/CR.A/1654/2008 CAV JUDGEMENT Popatbhai (A1) had lodged his complaint on 29th November 2005 at 12:50 hours. He has deposed that after registering the complaint of Popatbhai, the same was entered into the station diary bearing No.17 of 2005.
The PW25 Khumansingh Becharsingh is a Police Head Constable, Buckle No.6556 and between 1998 & 2006 he was serving at Shahibaug Police Station, Ahmedabad. He has deposed that on 8th December 2005, he was on duty at the Civil Hospital, Ahmedabad, OPD Department, and at that point of time he received a wardhi from the C.M.O. on duty regarding the death of a person named Fulabhai Vihabhai Dabhi. Nothing turns around on the evidence of this witness.
The last witness to be examined was the PW26 Savdanbhai Viraji Asari, the Investigation Officer, who had completed the investigation and had filed the charge-sheet in the Court of the learned Judicial Magistrate, First Class, Deesa. The PW26 in his evidence has deposed regarding the various stages of the investigation like the drawing of the inquest panchnama, the scene of offence panchnama, the panchnama of the collection of clothes of the deceased, etc. This witness proved the contradictions in the form of omissions brought in Page 30 of 59 R/CR.A/1654/2008 CAV JUDGEMENT the evidence of the witnesses.
III. Submissions on behalf of the Appellants :
Mr.Tejas Barot, the learned advocate appearing for the accused appellants, submitted that the trial Court committed a serious error in holding Popatbhai Mohanbhai (A1) guilty of the offence of murder simpliciter by relying on the evidence of the eye-witnesses to the incident. Mr.Barot submitted that the trial Court also committed a serious error in finding the accused nos.4 and 6 guilty of the offence under Section 325 of the Indian Penal Code. Mr.Barot submitted that the trial Court ought to have taken into consideration the defence of the accused no.1 Popatbhai Mohanbhai as reflected from his further statement in writing Exh.158. Mr.Barot submitted that the evidence on record would indicate that cross cases were filed. Mr.Barot laid must stress on the fact that Mohanbhai Dabhi (Harijan) (A7), father of Popatbhai Mohanbhai (A1), had sustained a serious injury on his head suggestive of the fact that a free fight had ensued between the prosecution witnesses and the accused persons. In such circumstances, according to Mr.Barot, it was not unreasonable on the part of Popatbhai Mohanbhai (A1) in protecting the life of his father Page 31 of 59 R/CR.A/1654/2008 CAV JUDGEMENT when he felt that if he would not intervene then probably Fulabhai, the deceased, would have hit a second blow on the body of Mohanbhai Dabhi (Harijan). Mr.Barot prays that in such circumstances, Popatbhai Mohanbhai (A1) deserves to be given the benefit of Section 96 of the Indian Penal Code, and assuming for the moment that Popatbhai Mohanbhai (A1) exceeded in the right of private defence by inflicting a fatal injury on the head of the deceased, even then also the case would fall within the Exception 2 to Section 300 of the Indian Penal Code.
Mr.Barot prays that the appeal deserves consideration and the same may be allowed accordingly.
IV. Submissions on behalf of the State :
Mr.K.P.Raval, the learned APP, has vehemently opposed this appeal and submitted that the trial Court committed no error in finding the accused no.1 Popatbhai Mohanbhai guilty of the offence of murder punishable under Section 302 of the Indian Penal Code as well as the accused nos.4 and 6 guilty of the offence punishable under Section 325 of the Indian Penal Code.Page 32 of 59
R/CR.A/1654/2008 CAV JUDGEMENT Mr.Raval submits that on the contrary all the accused persons ought to have been held guilty of the offence of murder with the aid of Section 149 of the Indian Penal Code and for that purpose, the State has also filed an acquittal appeal.
Mr.Raval prays that the appeals filed by the accused persons be dismissed and the appeal filed by the State against the order of acquittal be allowed.
Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration in the two appeals against the order of conviction and sentence is, whether the trial Court committed any error in passing such order, and so far as the acquittal appeal is concerned, whether the trial Court committed any error in acquitting the original accused nos.2 to 7 of the offences under Sections 302, 325, 323, 147, 148, 149 and 504 of the Indian Penal Code.
The picture that emerges on cumulative assessment of the evidence on record admits of no doubt that cross complaints were filed by both the sides i.e. from the side of the Page 33 of 59 R/CR.A/1654/2008 CAV JUDGEMENT accused persons as well as from the side of the prosecution witnesses.
It appears that there was a long standing dispute between the accused persons and the family of the deceased and his brothers regarding a fence dividing their respective fields. It also appears from the evidence on record that on the date of the incident first there was an altercation between Mohanbhai Dabhi (Harijan) (A7) and the deceased Fulabhai. It also appears that Fulabhai, the deceased, as an aggressor, hit a blow with a sickle on the head of Mohanbhai Dabhi (A7) resulting in a serious incised wound. As deposed by the PW2, the x-ray No.9175 of Mohanbhai Dabhi (Harijan) (A7) revealed a probable fracture. The PW2 has also deposed that the injuries sustained by Mohanbhai Dabhi (Harijan) (A7) were grievous in nature. At the same time, Fulabhai, the deceased, also sustained a serious injury on his head which, unfortunately, proved to be fatal. However, from the evidence on record, it appears that the initial altercation between Mohanbhai Dabhi (Harijan) (A7) and Fulabhai, the deceased, led to a free fight between both the sides. Popatbhai Mohanbhai (A1), in his further statement in writing Exh.158 recorded under Section 313 of the Code of Criminal Procedure, Page 34 of 59 R/CR.A/1654/2008 CAV JUDGEMENT has stated in clear terms that Fulabhai, the deceased, hit a blow on the head of his father Mohanbhai Dabhi (Harijan) (A7) with a sickle and Rana Viha & Takha Viha hit blows on his father on both his hands with sticks as a result Mohanbhai Dabhi (Harijan) fell down. Popatbhai Mohanbhai (A1) has also stated that the turban worn by his father Mohanbhai Dabhi (Harijan) on his head also got flung and his shoes also got removed. Popatbhai Mohanbhai (A1) has honestly stated in his further statement that Fulabhai, the deceased, was on the verge of hitting a second blow on his father Mohanbhai Dabhi (Harijan) and at that point of time he felt that Fulabhai, the deceased, would kill his father Mohanbhai Dabhi (Harijan) if not stopped. Due to such apprehension in the mind of Popatbhai Mohanbhai (A1), he hit a blow on the head of the deceased with the spade he was carrying in his hand.
It appears from the evidence on record that the first complaint was lodged by the accused party which was registered as CR.I No.55 of 2005 and thereafter the second complaint was lodged by the PW16 Kantaben which was registered as CR.I No.56 of 2005.
It is also not in dispute that Mohanbhai Dabhi (Harijan) Page 35 of 59 R/CR.A/1654/2008 CAV JUDGEMENT (A7) was admitted in the hospital and the injury certificate Exh.14 indicate the grievous injuries which were sustained by Mohanbhai Dabhi (Harijan) (A7). From the evidence of the PW2 it appears that Mohanbhai Dabhi (Harijan) (A7) was admitted in the hospital on 29th November 2005 and was discharged on 8th December 2005.
Inspite of the fact that Mohanbhai Dabhi (Harijan) had sustained grievous injuries and the other co-accused had also sustained injuries as reflected from the medical certificates on record and the oral evidence of the PW2, none of the eye- witnesses to the incident have deposed a word about the same. It indicates that none of the eye-witnesses was honest enough to depose the true facts before the Court and gave a one-sided version of the assault on Fulabhai, the deceased.
In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences :
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version:Page 36 of 59
R/CR.A/1654/2008 CAV JUDGEMENT (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.
There may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. (see Lakshmi Singh and Page 37 of 59 R/CR.A/1654/2008 CAV JUDGEMENT others v. State of Bihar, 1976 Cri.L.J. 1736).
However, such is not the position so far as the case at hand is concerned.
At the same time, the evidence on record would also indicate that in the free fight between the two groups, Popatbhai Mohanbhai (A1) inflicted injury on the head of the deceased Fulabhai which proved to be fatal. However, the defence of Popatbhai Mohanbhai (A1) as discussed above is that if he would not have stopped Fulabhai by instinctively hitting a blow on his head with a spade which was in his hand, then probably Fulabhai would have killed his father Mohanbhai Dabhi (Harijan) (A7).
Therefore, we are left with the only question, whether Popatbhai Mohanbhai (A1) could be said to have committed an offence of murder punishable under Section 302 of the Indian Penal Code or his act is saved by Section 96 of the Indian Penal Code which provides that nothing is an offence which is done in the exercise of right of private defence. Page 38 of 59
R/CR.A/1654/2008 CAV JUDGEMENT Apropos the above question posed by us, we also propose to consider the question, whether the act of Popatbhai Mohanbhai (A1) falls within the Exception 2 to Section 300 of the Indian Penal Code, if we reach to the conclusion that although Popatbhai Mohanbhai (A1) hit the blow on the head of the deceased with a spade to protect the life of his father Mohanbhai Dabhi (Harijan), yet in the process exceeded his right of defence, then what was necessary to save the life of his father.
Before we proceed to answer the aforesaid question, it will be profitable to look into the position of law on the subject.
In State of U.P. v. Ram Swarup and another, AIR 1974 SC 1570, a Bench of three Judges made the following observations, which are relevant for our purpose :
"The right of private defence is a right of defence, not of retribution. It is available in face of imminent peril to those who act in good faith and in no case can the right be conceded to a person who stage-manages a situation wherein the right can be used as a shield to justify an act of aggression. If a person goes with a gun to kill another, the intended victim is entitled to act in self-defence and if Page 39 of 59 R/CR.A/1654/2008 CAV JUDGEMENT be so acts there is no right in the former to kill him in order to prevent him from acting in self-defence. While providing for the right of private defence, the Penal Code has surely not devised a mechanism whereby an attack may be provoked as a presence for killing.
Quite apart from the consideration as to who was initially at fault, the extent of the harm which may lawfully be inflicted in self-defence is limited. It is a necessary incident of the right of private defence that the force used must bear a reasonable proportion to the injury to be averted, that is, the injury inflicted on the assailant must not be greater than is necessary for the protection of the person assaulted. Undoubtedly, a person in fear of his life is not expected to modulate his defence step by step or tier by tier for as Justice Holmes said in Brown v. United States (1921)256 US 335 "detached reflection cannot be demanded in the presence of an uplifted knife". But section 99 provides in terms clear and categorical that "the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence".
It would be possible to analyse the shooting incident more minutely but it is sufficient to point out that under section 105 of the Evidence Act, when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Penal Code is upon him and the court shall presume the absence of such Page 40 of 59 R/CR.A/1654/2008 CAV JUDGEMENT circumstances. The High Court must, of course, have been cognizant of this provision but the Judgment does not reflect its awareness of the provision and this we say not merely because section 105 as such has not been referred to in its Judgment. The importance of the matter under consideration is that Sections 96 to 106 of the Penal Code which confer and define the limits of the right of private defence constitute a general exception to the, offences defined in the Code; in fact these sections are a part of Chapter IV headed "General Exceptions". Therefore, the burden of proving the existence of circumstances which would bring the case within the general exception of the right of private defence is upon the respondents and the court must presume the absence of such circumstances The burden which rests on the accused to prove that any of the general exceptions is attracted does not absolve the prosecution from discharging its initial burden and truly, the primary burden never shifts save when a statute displaces the presumption of innocence; "indeed, the evidence, though insufficient to establish the exception, may be sufficient to negative one or more of the ingredients of the offence", K.M.Nanavati v. State of Maharashtra, 1962(1) Supp SCR 567. That is to say, an accused may fail to establish affirmatively the existence of circumstances which would bring the case within a general exception and yet the facts and circumstances proved by him while discharging the burden under section 105 of the Evidence Act may be enough to cast a reasonable doubt on the case of the prosecution, in which event he would be entitled to an acquittal, Dahyabhai Chhaganbhai v. Page 41 of 59
R/CR.A/1654/2008 CAV JUDGEMENT State of Gujarat, (1964)7 SCR 361. The burden which rests on the accused to prove the exception is not of the same rigour as the burden of the prosecution to prove the charge beyond a reasonable doubt. It is enough for the accused to show, as in a civil case, that the preponderance of probabilities is in favour of his plea." In Jai Dev v. State of Punjab, AIR 1963 SC 612, a Bench of three Judges made the following observations, which are worth noting :
"Section 100 provides, inter alia, that the right of private defence of the body extends under the restrictions mentioned in Section 99, to the voluntary causing of death if the offence which occasions the exercise of the right be an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. In other words, if the person claiming the right of private defence has to face assailants who can be reasonably apprehended to cause grievous hurt to him, it would be open to him to defend himself by causing the death of the assailant.
In appreciating the validity of the appellants' argument, it would be necessary to recall the basic assumptions underlying the law of self-defence, In a well-ordered civilised society it is generally assumed that the State would take care of the persons and properties of Page 42 of 59 R/CR.A/1654/2008 CAV JUDGEMENT individual citizens and that normally it is the function of the State to afford protection to such persons and their properties. This, however, does not mean that a person suddenly called upon to face an assault must run away and thus protect himself, He is entitled to resist the attack and defend himself. The same is the position if he has to meet an attack on his property, In other words, where an individual citizen or his property is faced with a danger and immediate aid from the State machinery is not readily available, the individual citizen is entitled to protect himself and his property. That being so, it is a necessary corollary to the doctrine of private defence that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. The exercise of the right of private defence must never be vindictive or malicious.
There can be no doubt that in judging the conduct of a person who proves that he had a right of private defence, allowance has necessarily to be made for his feelings at the relevant time. He is faced with an assault which causes a reasonable apprehension of death or grievous hurt and that inevitably creates in his mind some excitement and confusion. At such a moment, the uppermost feeling in his mind would be to ward off the danger and to save himself or his property, and so, he would naturally be anxious to strike a decisive blow in exercise of his right. It is no doubt true that in striking a Page 43 of 59 R/CR.A/1654/2008 CAV JUDGEMENT decisive blow, he must not use more force than appears to be reasonably necessary. But in dealing with the question as to whether more force is used than is necessary or than was justified by the prevailing circumstances, it would be inappropriate to adopt tests of detached objectivity which would be so natural in a court room, for instance, long after the incident has taken place. That is why in some judicial decisions it has been observed that the means which a threatened person adopts of the force which be uses should not be weighed in golden scales. To begin with, the person exercising a right of private defence must consider whether the threat to his person or his property is real and immediate. If he reaches the conclusion reasonably that the threat is immediate and real, he is entitled to exercise his right. In the exercise of his right, he must use force necessary for the purpose and he must stop using the force as soon as the threat has disappeared. So long as the threat lasts and the right of private defence can be legitimately exercised, it would not be fair to require, as Mayne has observed, that "he should modulate his defence step by step according to the attack, before there is reason to believe the attack is over". The law of private defence does not require that the person assaulted or facing an apprehension of an assault must run away for safety. It entitles him to secure his victory over his assailant by using the necessary force. This necessarily postulates that as soon as the cause for the reasonable apprehension has disappeared and the threat has either been destroyed or has been put to rout, there can be no occasion to exercise the right of private defence. If the Page 44 of 59 R/CR.A/1654/2008 CAV JUDGEMENT danger is continuing, the right is there; if the danger or the apprehension about it has ceased to exist, there is no longer the right of private defence, (vice Sections 102 and 105 of the Indian Penal Code). This position cannot be and has not been disputed before us and so, the narrow question which we must proceed to examine is whether in the light of this legal position, the appellants could be said to have had a right of private defence at the time when the appellant Jai Dev fired at the victim Jai Dev and the appellant Hari Singh fired at the victim Jai Narain."
In Krishna and another v. State of U.P., AIR 2007 SC 2452, the Supreme Court made the following observations, which are worth noting :
"7. Only question which needs to be considered, is the alleged exercise of right of private defence. Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression right of private defence.It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question Page 45 of 59 R/CR.A/1654/2008 CAV JUDGEMENT of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 (in short the Evidence Act), the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused Page 46 of 59 R/CR.A/1654/2008 CAV JUDGEMENT and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. (See Munshi Ram and Ors. v. Delhi Administration (AIR 1968 SC 702), State of Gujarat v. Bai Fatima (AIR 1975 SC 1478), State of U.P. v. Mohd. Musheer Khan (AIR 1977 SC 2226), and Mohinder Pal Jolly v. State of Punjab (AIR 1979 SC 577).Sections 100 to 101 define the extent of the right of private defence of body. If a person has a right of private defence of body under Section 97, that right extends under Section 100 to causing death if there is reasonable apprehension that death or grievous hurt would be the consequence of the assault. The often "ed observation of this Court in Salim Zia v. State of U.P. (AIR 1979 SC 391), runs as follows:
"It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence."
8.The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance Page 47 of 59 R/CR.A/1654/2008 CAV JUDGEMENT of probabilities is in favour of his plea.
9.The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilise the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. [See Lakshmi Singh v. State of Bihar (AIR 1976 SC 2263)]. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its Page 48 of 59 R/CR.A/1654/2008 CAV JUDGEMENT proper setting. Section 97 deals with the subject-matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101, IPC define the limit and extent of right of private defence.
10.Sections 102 and 105, IPC deal with commencement and continuance of the right of private defence of body and property respectively. The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, or commit the offence, although the offence may not have been committed but not until there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. In Jai Dev. v. State of Page 49 of 59 R/CR.A/1654/2008 CAV JUDGEMENT Punjab (AIR 1963 SC 612), it was observed that as soon as the cause for reasonable apprehension disappears and the threat has either been destroyed or has been put to route, there can be no occasion to exercise the right of private defence.
11.In order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Similar view was expressed by this Court in Biran Singh v. State of Bihar (AIR 1975 SC 87). (See: Wassan Singh v. State of Punjab (1996) 1 SCC 458, Sekar alias Raja Sekharan v. State represented by Inspector of Police, T.N. (2002 (8) SCC
354)).
12. As noted in Butta Singh v. The State of Punjab (AIR 1991 SC 1316), a person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private-defence Page 50 of 59 R/CR.A/1654/2008 CAV JUDGEMENT commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private-defence can legitimately be negatived. The Court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact.
13. The right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. (See Vidhya Singh v. State of M.P. (AIR 1971 SC 1857)).Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate, as held by this Court, to adopt tests by detached objectivity which would be so natural in a Court room, or that which would seem absolutely Page 51 of 59 R/CR.A/1654/2008 CAV JUDGEMENT necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances.
14. In the illuminating words of Russel (Russel on Crime, 11th Edition Volume I at page 49):
"....a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases, he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended and if in a conflict between them he happens to kill his attacker, such killing is justifiable."
15.The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. the IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right of defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has Page 52 of 59 R/CR.A/1654/2008 CAV JUDGEMENT not devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived."
The principles of law discernible from the above could be summarised as under :
(1) The right of private defence conferred by the Indian Penal Code is essentially one of defence or self-protection and not any right of reprisal or punishment. It is subject to restrictions imposed by Section 99 and they are as important as a right itself.
(2) One of the limitations is that the harm must not be more than that is legitimately necessary for the purpose of defence.
(3) The burden of establishing the plea of private defence is on the accused. It stands discharged by showing preponderance of probabilities in favour of such plea, even without examining any defence witness. The question of such a case would be a question of assessing the true fact of the prosecution evidence and not a question of the accused discharging any burden.
(4) In order to find, whether the right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused Page 53 of 59 R/CR.A/1654/2008 CAV JUDGEMENT by the accused and the circumstance whether the accused had time to have recourse to public authorities are all relevant factors to be considered.
(5) The right of private defence of person and property is recognized in all force, in civilized, democratic societies with certain reasonable limits. The law does not require a law abiding citizen to behave like a coward when confronted with an imminent unlawful aggression inasmuch as there is nothing more degrading to the human spirit than to run away in the face of danger.
(6) It is not a must for the accused to take the plea of self-defence specifically. Defence can rely on the evidence led by the prosecution and the Court cannot ignore the materials on record simply because the accused has not taken such a plea.
In the case at hand Mohanbhai Dabhi (Harijan) (A7) at the relevant point of time was aged around 60 years. Popatbhai Mohanbhai (A1), as a son, could not have remained a mute spectator and allowed Fulabhai, the deceased, to inflict more injuries on the body of Mohanbhai Dabhi (Harijan). In the spur of the moment, it is possible that Popatbhai Mohanbhai (A1) might have thought that if he would not do something, then his father would be killed. At that point of time, the human instinct of a person would compel him to take recourse to such steps Page 54 of 59 R/CR.A/1654/2008 CAV JUDGEMENT which would be available to stop more assault on the person in danger. However, we are also of the view, having regard to the nature of the injury sustained by the deceased Fulabhai, that Popotbhai (A1) exceeded the right of private defence. In such circumstances, although the act of Popatbhai Mohanbhai (A1) may not amount to murder yet the same would definitely fall within the ambit of culpable homicide not amounting to murder. In our opinion, taking into consideration the evidence on record, the case falls within Exception 2 to Section 300 of the Indian Penal Code and to that extent we are persuaded to give the benefit to the accused no.1 Popatbhai Mohanbhai.
In the aforesaid context, we may quote with profit the decision of the Supreme Court in the case of Kesha and others v. State of Rajasthan, 1993 Cri.L.J. 3674, wherein the Supreme Court made the following observations in a case where a son, the accused, finding that his father was being beaten up, inflicted injuries on his father's assailants. The Supreme Court took the view that it could be said that the son acted in self- defence. However, at the same time, the Supreme Court also took the view that when there was no reasonable apprehension that death or grievous hurt would be caused, it had to be held that in causing the death of the deceased, the Page 55 of 59 R/CR.A/1654/2008 CAV JUDGEMENT son exceeded the right of self-defence, and as such, deserved to be convicted under Section 304(1) of the Indian Penal Code and not under Section 302 of the Indian Penal Code.
"8. This is a case where the father and 3 sons are involved. It is alleged that A-2 one of the sons finding that his father is being beaten up inflicted injury. In such a situation it cannot be said that the accused are falsely pleading the self-defence. However, it may be noted that there was no reasonable apprehension that death or grievous hurt would be caused.
9. In this view of the matter, the accused are entitled to the right of self-defence. Once their plea of self-defence is not turned down then the question remains whether they are within the limits or they have exceeded the limits. In this case having regard to the various circumstances and the nature of the injuries on the accused as well as on the deceased we are of the view that the accused had exceeded the right of self-defence in which case the offence would be one punish able under Section 304, Part I, I.P.C. Accordingly the conviction of each of the appellant under Sections 302 and 302 read with Section 34, I.P.C. and sentence for life imprisonment are set aside. Instead each of them is convicted under Section 304, Part I, I.P.C. and sentenced to Rigorous Imprisonment for 7 years."
So far as the appellants of Criminal Appeal No.1654 of Page 56 of 59 R/CR.A/1654/2008 CAV JUDGEMENT 2008 are concerned i.e. the original accused nos.4 and 6, we do not find any reason to interfere with the order of conviction and sentence passed by the trial Court, holding them guilty of the offence under Section 325 of the Indian Penal Code. There is evidence on record regarding the overact played by both these appellants as deposed by the eye-witnesses to the incident.
In the overall view of the matter, we have reached to the conclusion that the conviction of Popatbhai Mohanbhai (A1) for the offence of murder punishable under Section 302 of the Indian Penal Code deserves to be altered to that of culpable homicide not amounting to murder punishable under Section 304(1) of the Indian Penal Code. The appeal filed by Popatbhai Mohanbhai (A1) being Criminal Appeal No.1928 of 2008 is partly allowed. The conviction of Popatbhai Mohanbhai (A1) is altered from that of Section 302 of the Indian Penal Code to one under Section 304(1) of the Indian Penal Code and his sentence is reduced to the period already undergone. Popatbhai Mohanbhai (A1) is ordered to be released forthwith, if not required in any other case.
The Criminal Appeal No.1654 of 2008 filed by Dahyabhai Page 57 of 59 R/CR.A/1654/2008 CAV JUDGEMENT (A4) and Isabhai (A6) is dismissed. However, the sentence imposed by the trial Court for the offence punishable under Section 325 of the Indian Penal Code is reduced to the period already undergone. Both the appellants of Criminal Appeal No.1654 of 2008 are on bail and, therefore, their bail bonds stand discharged.
We shall now deal with the acquittal appeal filed by the State of Gujarat being Criminal Appeal No.2122 of 2008.
It appears that the trial Court arrived at the conclusion, on overall assessment of the evidence on record, and very rightly to our mind, that the case at hand is one of free fight, and that being so, Section 149 of the Indian Penal Code will not have any application.
In case of sudden and free fight, no constructive liability can be imposed. Each accused can only be convicted for the injuries caused by his individual acts. We have discussed this aspect of free fight between the two groups at length and we are at one with the trial Court so far as this aspect is concerned. In our opinion, no error could be said to have been committed by the trial Court in acquitting the other co-accused Page 58 of 59 R/CR.A/1654/2008 CAV JUDGEMENT i.e. the original accused nos.2 to 7 of the offences punishable under Section 302 read with Sections 147, 148 and 149 of the Indian Penal Code.
In that view of the matter, we find no reason to entertain the acquittal appeal filed by the State against such order passed by the trial Court.
Resultantly, the acquittal appeal filed by the State fails and is hereby dismissed. The order passed by the trial Court acquitting the original accused nos.2 to 7 i.e. the respondent nos.1 to 6 of Criminal Appeal No.2122 of 2008 of the offence under Sections 302, 323, 147, 148, 149 and 504 of the Indian Penal Code is hereby affirmed.
(BHASKAR BHATTACHARYA, CJ.) (J.B.PARDIWALA, J.) MOIN Page 59 of 59