Himachal Pradesh High Court
Prem Tamang vs State Of Himachal Pradesh on 5 November, 2015
Bench: Rajiv Sharma, Sureshwar Thakur
IN THE HIGH COURT OF HEMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 94 of 2015
Reserved on: November 04, 2015.
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Decided on: November 05, 2015.
Prem Tamang ......Appellant.
Versus
State of Himachal Pradesh .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
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Whether approved for reporting? Yes.
For the appellant: Mr. Lovneesh Kanwar, Advocate.
For the respondent: Mr. P.M.Negi, Dy. AG.
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Justice Rajiv Sharma, J.
rt This appeal is instituted against the judgment and order dated 19.5.2014 and 22.5.2014, respectively, rendered by the learned Addl. Sessions Judge, Kullu, H.P. in Sessions Trial No. 39 of 2014 (2012), whereby the appellant-accused (hereinafter referred to as accused), who was charged with and tried for offence punishable under Section 302 IPC, has been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 20,000/- and in default of payment of fine, he was ordered to further undergo imprisonment for two years.
2. The case of the prosecution, in a nut shell, is that on the midnight of 2.8.2012 at around 1:00 AM at Manali, near Johnson Lodge, a loud noise came out from the Dhara (temporary hut), where the Nepali families were residing. Complainant Chander Mani (PW-5), alongwith Suresh was sleeping in the adjoining Dhara. They came out from their Dhara and found that accused Prem Tamang and one Ravi, resident of Nepal, were quarrelling with each other inside the Dhara of Prem ::: Downloaded on - 15/04/2017 19:19:11 :::HCHP 2 Tamang, accused. Complainant and Suresh intervened but both of them continued to quarrel. Injury was caused to Ravi. He fell down and blood .
started oozing from the head of the deceased. He died on the spot. The accused committed the murder of Ravi by hitting his head with wooden bar. The accused ran away from the spot. The police was informed about the occurrence through telephone, on the basis of which, FIR Ext. PW-
of 4/A was recorded. The police reached the spot. The statement of PW-5 Chander Mani under Section 154 Cr.P.C. was recorded vide Ext. PW-5/A. The spot map was prepared. The police took into possession the blood rt stained soil and control sample of soil Ext. P-11 with the help of cotton swab Ext. P-9 by packing the same in a plastic jar (dibbi) Ext. P-8 and took the same into possession vide memo Ext. PW-5/B. Wooden bar Ext.
P-6 was taken into possession vide seizure memo Ext. PW-5/D. The post mortem of deceased was got conducted. The report Ext. PW-8/A was obtained. On completion of the investigation, challan was put up after completing all the codal formalities.
3. The prosecution, in order to prove its case, has examined as many as 11 witnesses. The accused was also examined under Section 313 Cr.P.C. He denied the incriminating circumstances put to him. The learned trial Court convicted and sentenced the accused, as noticed hereinabove. Hence, this appeal.
4. Mr. Lovneesh Kanwar, Advocate for the accused has vehemently argued that the prosecution has failed to prove the case ::: Downloaded on - 15/04/2017 19:19:11 :::HCHP 3 against the accused. On the other hand, Mr. P.M.Negi, Dy. Advocate General, appearing on behalf of the State, has supported the judgment .
and order of the learned trial Court dated 19.5.2014 and 22.5.2014, respectively.
5. We have heard learned counsel for both the sides and gone through the judgment and records of the case carefully.
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6. PW-5 Chander Mani deposed that he used to work with contractor and used to do the work of steel and iron. He used to stay in Dhara at Manali. Suresh Kumar also resided with him at Van Vihar. On rt 2.8.2012 at about 12-01 AM, they heard some noise from the nearby Dhara. He saw that accused Prem Tamang and Ravi were quarrelling with each other. He saw Prem Tamang hitting Ravi with a wooden stick on his head. Thereafter, Ravi fell down and after some time he died.
Prem was inside the Dhara. He informed the police on phone. The police came to the spot and recorded his statement vide Ext. PW-5/A. The occurrence was witnessed by him in the light of the Dhara. He had also switched on the light of his Dhara. The police came to the spot and collected the blood stained soil with the help of cotton swabs and packed the same in the plastic jar. The police also sealed the dibbi with six seals of "M" and took into possession vide seizure memo Ext. PW-5/B. The police also took into possession tarpuline vide seizure memo Ext. PW-5/C. Wooden stick was taken into possession vide memo Ext. PW-5/D. In his cross-examination, he deposed that all Dharas were occupied by the ::: Downloaded on - 15/04/2017 19:19:11 :::HCHP 4 people. There was no hotel known as Johnsons lodge near the Dhara. He heard the noise in the night at about 12:00 AM. He could not say by what .
time the quarrel had started as he was sleeping. The quarrel had taken place in the Dhara of accused Prem Tamang. He denied the suggestion that the roof of the Dhara was uprooted. Voluntarily stated that the tin sheets were damaged in the fighting. According to him, the quarrel of continued for about 30-45 minutes. He had no knowledge about the cause of quarrel. Other persons also came on the spot. He admitted that six-seven persons also came on the spot. The wife of the accused was rt also residing in the Dhara and she was also present at that time. Ravi was inside the Dhara of the accused. He informed the police twice through phone. Ravi had consumed liquor.
7. PW-6 Suresh Kumar deposed that he heard the noise from nearby Dhara, where the light was switched on. He alongwith Chander Mani came out of the Dhara and saw that Prem accused and Ravi were quarrelling in the Dhara. Accused Prem picked up a wooden log and struck it on the head of Ravi. Ravi fell down and died. The tin sheets of the Dhara of Prem were also uprooted. Chander Mani informed the police on the phone and police arrived at the spot. In his cross-examination, he categorically admitted that the fight took place inside the Dhara of the accused.
8. PW-8 Dr. Balbir Rawal, has conducted the post mortem examination on the dead body on 2.8.2012. The post mortem report is ::: Downloaded on - 15/04/2017 19:19:11 :::HCHP 5 Ext. PW-8/A. The cause of the death opined was due to severe head injury.
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9. PW-11 SI Matharu Ram has conducted the investigation. He testified that on 2.8.2012, a telephonic information was received at Police Station, Manali to the effect that Nepali persons were quarrelling with each other in their Dhara near Johnson lodge. On this information, rapat of Ext. PW-11/H was recorded. He alongwith PSI Rajesh Kumar, PSI Prashant and ASI Bhupender Singh went to the spot. When they reached the spot, they found Nepali dead. Chander Mani was present on the spot.
rt His statement under Section 154 Cr.P.C. was recorded vide Ext. PW-5/A. The case property was taken into possession. In his cross-examination, he admitted that when any article or object is deposited in the Malkhana, entry is made in Register No. 19. He also admitted that when article or object is taken out of the Malkhana, entry of the same is made in that Register. He also admitted that in PW-11/G, there is no reference of the Danda (stick) having been sent under a sealed cover. He also admitted that Chhering Lama was a witness of the spot.
10. The statement of the accused was also recorded under Section 313 Cr.P.C. He also gave his statement in writing under Section 313 (5) Cr.P.C. According to his statement, Ravi was drunk. He gave a kick blow on their door and he woke up. He opened the door. He asked him why he has come. He pushed him aside and entered the Dhaara.
His wife was sleeping. He called his wife. He objected to the same. He ::: Downloaded on - 15/04/2017 19:19:11 :::HCHP 6 started hurling abuses on him. He asked him to leave the Dhara. He picked up a quarrel and his wife also got up in the meantime.
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He started uprooting the tin sheets. He also objected to it. He tried to push him outside the Dhara. He pushed him and insisted to take his wife with him. Both of them objected. He kept on fighting. He tired to drag his wife from the Dhara. He tried to save his wife from the clutches of the of accused. The victim picked up a stick. He threatened to hit him with the stick. He tried to save him and also tried to snatch the stick from him and in the process, the stick struck the deceased Ravi Kumar.
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11. DW-1 Mayali Tamang is the wife of the accused. She deposed that she and her husband were sleeping. One drunkard person entered into their room. Earlier, he knocked at the door. They asked who was at the door. Then, he opened the door and came inside. After entering the room, he caught hold of her hand. When she resisted, that man started breaking the wall of their temporary hut. When she asked him not to do so, then he tried to pull her out. When, she again resisted he became more violent. When they again resisted, he became angry and picked up a stick and tried to hit them. She wanted to save herself and in the process, she as well as that man both fell down. She became unconscious.
12. The case of the prosecution, precisely, is that the deceased entered the Dhara of the accused. The accused hit him on the head with ::: Downloaded on - 15/04/2017 19:19:11 :::HCHP 7 a wooden stick. It led to the death of the deceased. According to the post mortem, report, the deceased died due to severe head injury.
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13. The statement of PW-5 Chander Mani was recorded under Section 154 Cr.P.C. vide Ext. PW-5/A. He testified that he saw the accused hitting Ravi with wooden stick on his head on 2.8.2012. In his cross-examination, he admitted that the tin sheets were damaged in the of fighting. The quarrel had taken place for about 30-45 minutes. Other people had also come on the spot. He has categorically deposed that Ravi was inside the Dhara of the accused. The quarrel has also taken place rt inside the Dhara of accused Prem Tamang. PW-6 Suresh Kumar has also deposed in his cross-examination that fighting has taken place inside the Dhara of the accused. The deceased died due to severe head injury, as per the post mortem report Ext. PW-8/A.
14. The defence taken by the accused as per the statement tendered under Section 313 (5) Cr.P.C. is that the deceased was in drunkard condition. He gave a kick blow on their door and he woke up.
He opened the door. He asked him why he has come. He pushed him aside and entered the Dhaara. His wife was sleeping. He called his wife.
He raised objection to the same. Ravi started hurling abuses on him and quarrel took place. He asked him to leave the Dhara. He picked up a quarrel and his wife also got up in the meantime. He started uprooting the tin sheets. He also objected to it. He pushed him and insisted to take his wife with him. Both of them objected. He tired to drag his wife from ::: Downloaded on - 15/04/2017 19:19:11 :::HCHP 8 the Dhara. He threatened to hit him with the stick. He tried to save him and also tried to snatch the stick from him and in the process, the stick .
struck the deceased Ravi Kumar. His statement is probablized by the statement of his wife DW-1 Mayali Tamang. She specifically deposed that one drunkard person entered into their room. After entering the room, he caught hold of her hand. When she resisted, that man started breaking of the wall of their temporary hut. When she asked him not to do so, then he tried to pull her out. When, she again resisted he became more violent. When they again resisted, he became angry and picked up a stick rt and tried to hit them. She wanted to save herself and in the process, she as well as that man both fell down. She became unconscious.
15. According to the statements of PW-5 Chander Mani and PW-6 Suresh Kumar, the fight has taken place inside the Dhara of the accused.
It was almost mid-night time. The victim had no business at all to be in the Dhara of the accused at midnight. He was drunk. He has misbehaved with the wife of the accused. He had also forcibly entered into the Dhara.
It was expected from the accused to save the body of his wife from the clutches of the accused who was trying to drag her out and also to protect him. The quarrel has taken place for more than half an hour. The accused had reasonable apprehension in his mind that the deceased was likely to hit him with wooden bar in order to abduct his wife. The victim has not come to the Dhara with good intention. The deceased had already picked up a stick. The accused tried to snatch the same and ::: Downloaded on - 15/04/2017 19:19:11 :::HCHP 9 in the process, the deceased suffered danda (stick) blow on the head. The case of the accused is covered under Section 100 of the Indian Penal .
Code. He has not exceeded his right of self defence/private defence by hitting the danda on the head of the deceased resulting in his death.
There is only one blow inflicted by the accused on the head of the deceased.
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16. Their lordships of the Hon'ble Supreme Court in the case of Vishwanath vrs. The State of Uttar Pradesh, reported in AIR 1960 SC 67, have held that when the appellant's sister was being abducted from rt her father's house by her husband, and there was an assault on her and she was being compelled by force to go away from her father's place, the appellant had the right of private defence of the body of his sister against an assault with the intention of abducting her by force and that right extended to the causing of death. It has been held as follows:
"5. Section 97 gives the right of private defence of person against any offence affecting the human body. Section 99 lays down that the right of private defence a no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 100 with which we are concerned is in these terms:-
" The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely-
" First-Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;::: Downloaded on - 15/04/2017 19:19:11 :::HCHP 10
Secondly-Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
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Thirdly-An assault with the intention of committing rape ; (1) I.L.R. 1948 All. 165. (3) A.I. R. 1930 Pat. 347 (2). (2) A.I.R. 1923 Lab. 155 (1). (4) 1 L.R. 1950 Nag 508. (5) A 1. R. 1953 Madhya Bharat 182.
Fourthly-An assault with the intention of gratifying unnatural lust;
of Fifthly-An assault with the intention of kidnapping or. abducting;
Sixthly-An assault with the intention of wrongfully confining rt a person under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release."
The right of private defence of person only arises if there is an offence affecting the human body. Offences affecting the human body are to be found in Ch. XVI from s. 299 to s. 377 of the Penal Code and include offences in the nature of use of criminal force and assault. Abduction is also in Ch. XVI and is defined in s. 362.
Abduction takes place whenever a person by force compels or by any deceitful means induces another person to go from any place. But abduction pure and simple is not an offence under the Penal Code. Only abduction with certain intent is punishable as an offence. If the intention is that the person abducted may be murdered or so disposed of as to be put in danger of being murdered, s. 364 applies. If the intention is to cause secret and wrongful confinement, s.
365 applies. If the abducted person is a woman and the intention is that she may be compelled or is likely to be compelled to marry any person against her will or may be forced or seduced to illicit intercourse or is likely to be so forced or seduced, s. 366applies. If the intention is to cause grievous hurt or so dispose of the person abducted as to put him in danger of being subjected to grievous hurt, or slavery or the unnatural lust of any person, s. 367applies. If the abducted person is a child under the age of ten and the intention is to take dishonestly any movable property from its person, s. 369 applies. It is said that unless an offence under one of these sections is likely to be committed, the fifth clause of s. 100 can have no application. On a plain reading, however, of that clause there does not seem to be any reason for holding that the word " abducting " used there means anything more than what is defined as "
abduction " in s. 362.::: Downloaded on - 15/04/2017 19:19:11 :::HCHP 11
It is true that the right of private defence of person arises only if an - offence against the human body is committed. Section 100 gives an extended right of private defence of person in cases where. the .
offence which occasions the exercise of the right is of any of the descriptions enumerated therein. Each of the six clauses of s. 100 talks of an assault and assault is an offence against the human body; (see s. 352). So before the extended right under s. 100 arises there has to be the offence of assault and this assault has to be of one of the six types mentioned in the six clauses of the section. The view in Ram Saiya's case (1) seems to overlook that in each of the six clauses enumerated in s. 100, there is an offence against the human body, namely, assault. So the right of private defence arises against of that offence, and what s. 100 lays down is that if the assault is of an aggravated nature, as enumerat- ed in that section, the right of private defence extends even to the causing of death. The fact that when describing the nature of the assault some of the clauses in s. 100 use words which are themselves offences, as for example, "
grievous hurt ", " rape ", " kidnapping ", " wrongfully confining ", rt does not mean that the intention with which the assault is committed must always be an offence in itself. In some other clauses, the words used to indicate the intention do not themselves amount to an offence under the Penal Code. For example, the first clause says that the assault must be such as may reasonably cause the apprehension of death. Now death is not an offence anywhere in the Penal Code. Therefore, when the word " abducting " is used in the fifth clause, that word by itself reed not be an offence in order that clause may be taken advantage of by or on behalf of a person who is assaulted with intent to abduct. All that the clause requires is that there should be an assault which is an offence against the human body and that assault should be with the intention of abducting, and whenever these elements are present the clause will be applicable.
6. Further the definition of " abduction " is in two parts, namely,
(i) abduction where a person is compelled, (1) I.L.R. 1948 All. 165. by force to go from any place and (ii) abduction where a person is induced by any deceitful means to go from any place. Now the fifth clause of s. 100 contemplates only that kind of abduction in which force is used and where the assault is with the intention of abducting, the right of private defence that arises by reason of such assault extends even up to the causing of death. It would in our opinion be not right to expect from a person who is being abducted by force to pause and consider whether the abductor has further intention as provided in one of the sections of the Penal Codequoted above, before he takes steps to defend himself, even to the extent of causing death of the person abducting. The framers of the Code knew that abduction by itself was not an offence unless there was some further intention coupled with it. Even so in the fifth clause of s. 100 the word " abducting " has been used without any ::: Downloaded on - 15/04/2017 19:19:11 :::HCHP 12 further qualification to the effect that the abducting must be of the kind mentioned in s. 364 onwards. We are therefore of opinion that the view taken in Ram Saiya's case (1) is not correct and the fifth .
clause must be given full effect according to its plain meaning.
Therefore, when the appellant's sister was being abducted, even though by her husband, and there was an assault on her and she was being compelled by force to go away from her father's place, the appellant would have the right of private defence of the body of his sister against an assault with the intention of abducting her by force and that right would extend to the causing of death."
17. In the instant case also, the deceased had tried to abduct the of wife of the accused by dragging her out of the Dhara in a drunken state.
The quantity of ethyl alcohol in urine was 319.70 mg% and in blood of the
18. rt deceased was 268.38 mg%, as per Ext. PB, report of the FSL.
In the case of Deo Narain vrs. State of U.P., reported in AIR 1973 SC 473, their lordships of the Supreme Court have held that for right of private defence rests on the general principle that where a crime is endeavoured to be committed by force, it is lawful to repel that force in self defence. Their lordships have further held that therefore, as soon as a reasonable apprehension of danger arises, the right of private defence can be exercised. It has been held as follows:
"5. In our opinion, the High Court does seem to have erred in law in convicting the appellant on the ground that he had exceeded the right of private defence. What the High Court really seems to have missed is the provision of law embodied in s. 102, I.P.C. According to that section the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit it he offence , though the offence may not have been committed, and such right continues so long as such apprehension of danger to the body continues. The threat, however, must reasonably give rise to the present and imminent, and not remote or distant, danger. This right rests on the general principle that where a crime is endeavored to be committed by force, it is lawful to repel that force in self-defence. To say that the appellant ::: Downloaded on - 15/04/2017 19:19:11 :::HCHP 13 could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is section. The right of private defence is available forprotection against-apprehended .
unlawful aggression and not forpunishing ,the aggressor for the offence committed by him. It isa preventive and not punitive right. The right to punish forthe commission of offences vests in the State (which has a duty to maintain law and order) and not in private individuals.If after sustaining a serious injury there is no apprehension of further (1) [1970] 3 S.C.R. 473 danger to the body then obviously the right of private defence would not be available. In our view, therefore, as soon as the appellant reasonably apprehended danger to his body even from a real threat on the part of of the party of the complainant to assault him for the purpose of forcibly taking possession of the plots in dispute or of obstructing their cultivation, he got the right of private defence and to use adequate force against the wrongful aggressor in exercise of that right. There can be little doubt that on the conclusions- of the two courts below that the party of the complainant had deliberately come rt to forcibly prevent or obstruct the possession of the accused persons and that this forcible obstruction and prevention was unlawful, the appellant could reasonably apprehend imminent and present danger to his body and to his companions. The complainants were clearly determined to use maximum force to achieve their end. He was thus fully justified in using force to defend himself and if necessary also his companions against the apprehended danger which was manifestly imminent. Again the approach of the High Court that merely because the complainant's party had used lathis, the appellant was not justified in using his spear is no less misconceived and insupportable. During the course of a marpeet, like the present, the use of a lathi on the head may very well give rise to a reasonable apprehension that death or grievous hurt would result from an injury caused thereby. It cannot be laid down as a general rule that the use of a lathi as distinguished from the us,-- of, a spear must always be held to result only in milder injury. Much depends on the nature of the lathi, the part of the body aimed at and the force used in giving the blow. Indeed, even a spear is capable of being so used as to cause a very minor injury The High Court seems in this connection to have overlooked the provision contained in s. 100, I.P.C. We do not have any evidence about the size or the nature of the lathi. The blow, it is known, was aimed at a vulnerable part like the head. A blow by a lathi on the head may prove instantaneously fatal and cases are not unknown in which such a blow by a lathi has actually proved instantaneously fatal. If, therefore a blow with a lathi is aimed at a vulnerable part like the head we do not think it can be laid down as a sound, Proposition of law 'that in such cases the victim is not justified in using his spear in defending himself. In such moments of excitement of disturbed mental Equilibrium it is somewhat difficult to expect parties facing ::: Downloaded on - 15/04/2017 19:19:11 :::HCHP 14 grave aggression to coolly weigh, as if in golden scales, and calmly determine with a composed mind as to what precise kind and severity of blow would be legally sufficient for effectively meeting the .
unlawful aggression. No doubt, the High Court does seem to be aware of this aspect because the other accused persons were given the benefit of this rule. But while dealing with the appellant's case curiously enough the High Court has denied him the right of private defence on the sole ground that he had given a dangerous blow with considerable force with a spear on the chest of the ,deceased though he himself had only received a superficial lathi blow on his head. This view of the High Court is not only unrealistic and unpractical but also contrary to law and indeed even in conflict with its own of observation that in such cases the matter .cannot be weighed in scales of gold."
19. In the case of Satna Majhi vrs. State of Assam, reported in rt 1983 Cri. L.J. 287, the Division Bench has held that the reasonableness of apprehension of imminent peril of life and limb in the mind of the accused who claimed right of private defence must be judged objectively from the conduct of deceased coupled with the reasoning faculties of accused, and with reference to the events and deeds at the crucial time and in the total situation of surrounding circumstances. In this case, the deceased, an elder brother of accused returned home at mid-night in a drunken state, abused his mother and sister, assaulted and kicked them both, broke the walls and posts of the house, chased after everyone with a dangerous weapon in his hand and threatened the inmate "to cut to pieces". The Division Bench has held that the circumstances were sufficient to give rise to reasonable apprehension of death or grievous hurt in the mind of a reasonable person, not to speak of accused, a boy of 16 years. The Division Bench has held as follows:
::: Downloaded on - 15/04/2017 19:19:11 :::HCHP 15"2. The crucial question for determination is whether the accused, a boy aged about 15/16 years at all relevant times, had reasonable apprehension that there was imminent peril of life and .
limb of himself and the other members of the family-his own dear and near relations, his mother and sister. The .apprehension in the mind of the accused who claimed the right of private defence must be judged objectively with reference to the events and deeds at that crucial time and in the total situation of the surrounding circumstances. The accused was a young boy aged 15/16 years; the deceased, his eldest brother, was drunk, had assaulted his mother and sister, kicked them, damaged the posts and wall of the house, thereafter he brought out a dao and chased everyone threatening to of kill them. Therefore, the deceased created a horrendous quandary at the, dead of the night and these happened in quick successions obtaining aid from private sources and recourse to public authority were beyond any question on the fact-situation. Further, reasonableness of the apprehension must be judged from the conduct of the deceased coupled with the reasoning faculties of the rt young boy. The accused comes from the family to tea garden labourers. He is illiterate vide L. T. Is in his confessional statement and statement recorded under Section 313 of the Cri. P. C. He never minced a word. He killed his elder brother in self defence to prevent commission of apprehended crimes which the deceased was about to commit, namely, either death or grievous hurt to the inmates of the house. Admittedly, the conduct of the drunk, armed with a dangerous weapon in his hand, was sufficient to give rise to the alluded reasonable apprehension in the mind of a reasonable person not to speak of a teenager. It was quite reasonable for the boy to have reasonable apprehension that his elder brother was out to cause grievous injury or death to his mother, sister as well as himself. He tried to prevent the commission of crimes and exercised the right of private defence. In fact, the deceased had already kicked and assaulted his mother and thereafter took the dao, and threatened all to do away with their lives. Therefore, there was reasonable "
apprehension of danger to. the accused, his mother and sister from the attempt or threat to commit the offence of murder or grievous hurt. There was existence of real apprehension of danger. The young boy faced imminent peril of life and limb of himself and others, he could not be expected to weigh in goldsmith's scale the precise force needed to repel the danger. It may be recalled that the attacker was his elder brother fully armed and if the accused would have allowed the deceased to get the better of the accused, the latter would have been finished along with the members of his family. Under such circumstances, if he had dealt more than one blow on the deceased it cannot be said that he exceeded the right as in the heat of the moment and excitement the power of calculation with precision and exactitude by a calm and unruffled mind were destroyed by the situation created by the attacker. What would have happened had he ::: Downloaded on - 15/04/2017 19:19:11 :::HCHP 16 not dared to snatch away the dao? It would have been perilous end of three lives. What would have happened if he would not have dealt sufficient blows to disable the attacker ? It would have resulted in .
the same consequence. The blows given by the accused were neither vindictive nor malicious. In deciding whether the force used was reasonable, all the attending circumstances must be considered, the matter being fully a question of fact.
3. We have considered all the relevant facts including the fact that there was no possibilities of retreat and, we hold that the accused had the right of private defence and allowance must necessarily be made for his "feeling" at all relevant time. He faced an of imminent danger to his life or at least grievous hurt which inevitably caused great excitement and confusion in his mind. At such moments the uppermost feeling was necessarily not only to ward off the danger but to save himself and naturally he would be anxious to strike a decisive blow in exercise of his right, rt
4. While considering the right of private defence of person we have borne in mind the limitations onSections 99 to 100 of the Indian Penal Code. On materials we find that there, was a real apprehension of death or grievous assault upon the accused and/or his neap relations (mother and sister), There was no time for recourse to the public authorities nor was there any possibility of getting public assistance; the injuries inflicted on the deceased cannot be said to be excessive as (a) the deceased was drunk powerful and if allowed to get the better of the accused the former could have certainly finished him; (b) the blows were neither vindictive nor malicious but protective in nature; (c) the act of giving blow cannot be weighed in golden scale and we have given allowance to the status of the accused and his age. The blows were inflicted in the heat of the moment and excitement when it was a case of life and death for the accused."
20. In the present case, the deceased was drunk. He had started uprooting the tin sheets of the Dhara in question. He was trying to drag the wife of the accused outside the Dhara and was also armed with stick.
Thus, there was reasonable apprehension in the mind of the accused that drunken man could hit him and cause him grievous injury or even death.
21. In the case of Ram Phal and others vrs. State of Haryana, reported in 1993 Supp. (3) SCC 740, their lordships of the Hon'ble ::: Downloaded on - 15/04/2017 19:19:11 :::HCHP 17 Supreme Court have held that it is enough if a reasonable doubt arise on examination of probabilities of the case and accused inflicting only one .
injury on head with blunt weapon which proved fatal, the right of self defence was not exceeded. It has been held as follows:
"3. In this appeal learned Counsel submits that the prosecution has not explained so many injuries on the accused persons and, therefore, they have not come out with the whole truth as to the genesis of the occurrence and on the other hand the plea of the of accused that they inflicted injuries on the deceased in exercise of their right of self-defence must be accepted and they should be given the benefit of doubt. In this context it has to be noted that as matter of fact, the accused went to the Police early and informed about the occurrence. It is unfortunate that the deceased though received only rt one injury dies as the same resulted in the fracture of skull bones. Having regard to the specific plea put forward by the accused under Section 313, Cr.P.C. there is no reason why it should be rejected outright. In this context, it has to be noted that the accused need not establish their right beyond all reasonable doubt. It is enough if a reasonable doubt arises on examination of the probabilities of the case. In the instant case we have seen that the accused persons received fairly number of injuries. Some of them were on vital parts. The prosecution has no plausible explanation. In such a situation, the plea put forward by the accused appears to be quite probable and therefore, it cannot be rejected. The next question is whether they have exceeded the right of private defence.
Only one overt act is attributed to A-1. It is clear that he inflicted only one injury and dealt one blow on his head. Therefore, in such a situation, it cannot be said that the act of A-1 is not in conformity with the limitations laid down in Section 100, I.P.C. In the result we give the benefit of doubt to all the accused as such. We are of the view that they have not exceeded the right of self-defence. The appeal is allowed. If the appellants are on bail, their bail bonds shall stand cancelled. The sentences of fine are also set aside."
22. The Division Bench of the Madhya Pradesh High Court in the case of Sunil Gangrade vrs. State of M.P., reported in 1997 Cri.
L.J.4238, has held that the person apprehending danger is not required to wait for sustaining injury. Sustaining of injury is not necessary. The ::: Downloaded on - 15/04/2017 19:19:11 :::HCHP 18 mere reasonable apprehension would be sufficient for exercise of right of self defence. It has been held as follows:
.
"25. We do not agree with this contention of the learned counsel for State as in that case during the Panchayat of the village deceased took out a shoe and dishonoured certain Panchas present there in the Panchayat. He was thereafter dragged out of the Panchayat and taken to road and then stabbed to death. It was in this background that the Apex Court of the country held that the accused persons in that case exceeded right of self defence.
of Here in this case accused had come "second time" to the shop of Sunil. He did hurl filthy abuses second time, and pelted stones which had caused fear in the minds of the persons present in the shop who were scared and left the shop. He again tried to pick-up stone from rt in front of the shop of Sunil. In such a situation Sunil had a right to react and his apprehension of sustaining grievous injury at the hands of Gangaram was reasonable. It is noteworthy that the person apprehending danger is not required to wait for sustaining injury. Sustaining of injury is not necessary; mere reasonable apprehension would be sufficient for exercise of right of self-defence."
23. Their lordships of the Hon'ble Supreme Court in the case of Radhe vrs. State of Chhattisgarh, reported in AIR 2008 SC 2878, have held that right of private defence of body and property commences as soon as reasonable apprehension of danger arises from an attempt or threat. It lasts so long as reasonable apprehension of danger continues.
It has been held as follows:
"7. 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 that 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 Punjab (AIR 1963 SC 612), it was observed that as soon as the cause for reasonable apprehension disappears and the threat has either ::: Downloaded on - 15/04/2017 19:19:11 :::HCHP 19 been destroyed or has been put to route, there can be no occasion to exercise the right of private defence."
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24. There were no major contradictions as observed by the learned trial Court in the statement of the accused made by him under Section 313 Cr.P.C. and the statement of DW-1.
25. Their lordships' of the Hon'ble Supreme Court in the case of State of Haryana vrs. Ram Singh, reported in (2002) 2 SCC 426, have of held that the evidence tendered by defence witnesses cannot always be termed to be a tainted one. The defence witnesses are entitled to equal rt treatment and equal respect as that of the prosecution. It has been held as follows:
"19. Significantly all disclosures, discoveries and even arrests have been made in the presence of three specific persons, namely, Budh Ram, Dholu Ram and Atma Ram - no independent witness could be found in the aforesaid context - is it deliberate or is it sheer coincidence - this is where the relevance of the passage from Sarkar on Evidence comes on. The ingenuity devised by the prosecutor knew no bounds - can it be attributed to be sheer coincidence? Without any further consideration of the matter, one thing can be, more or less with certain amount of conclusiveness be stated that these at least create a doubt or suspicion as to whether the same have been tailor-made or not and in the event of there being such a doubt, the benefit must and ought to be transposed to the accused persons. The trial court addressed itself on scrutiny of evidence and came to a conclusion that the evidence available on record is trustworthy but the' High Court acquitted one of the accused persons on the basis of some discrepancy between the oral testimony and the documentary evidence as noticed fully hereinbefore. The oral testimony thus stands tainted with suspicion. If that be the case, then there is no other evidence ::: Downloaded on - 15/04/2017 19:19:11 :::HCHP 20 apart from the omnipresent Budh Ram and Dholu Ram, who however are totally interested witnesses. While it is true that .
legitimacy of interested witnesses cannot be discredited in any way nor termed to be a suspect witness but the evidence before being ascribed to be trustworthy or being capable of creating confidence, the court has to consider the same upon proper scrutiny. In our view, the High Court was wholly in error in not considering the evidence available on record in its proper perspective. The other aspect of the matter is in regard to the defence contention that of Manphool was missing from the village for about 2/3 days and is murdered on 21-1-1992 itself. There is defence evidence on record by DW 3 Raja Ram that Manphool was murdered on 21-1-1992. rt The High Court rejected the defence contention by reason of the fact that it was not suggested to Budh Ram or Dholu Ram that the murder had taken place on 21-1-1992 itself and DW 3 Raja Ram had even come to attend the condolence and it is by reason therefor Raja Ram's evidence was not accepted. Incidentally, be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one - the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses on a par with that of the prosecution. Rejection of the defence case on the basis of the evidence tendered by the defence witness has been effected rather casually by the High Court. Suggestion was there to the prosecution witnesses, in particular PW 10 Dholu Ram that his father Manphool was missing for about 2/3 days prior to the day of the occurrence itself - what more is expected of the defence case: a doubt or a certainty - jurisprudentially a doubt would be enough:
when such a suggestion has been made the prosecution has to bring on record the availability of the deceased during those 2/3 days with some independent evidence. Rejection of the defence case only by reason thereof is far too strict and rigid a requirement for the defence to meet - it is the prosecutor's duty to prove beyond all ::: Downloaded on - 15/04/2017 19:19:11 :::HCHP 21 reasonable doubts and not the defence to prove its innocence - this itself is a circumstance, which cannot but be termed to be .
suspicious in nature."
26. Their lordships' of the Hon'ble Supreme Court in the case of Sanjiv Kumar vrs. State of Punjab, reported in (2009) 16 SCC 487, have held that generally defence witnesses are observed to be untruthful, however, it is not to say that in all cases defence witnesses must be held of to be unthruthful, merely because they support the case of accused.
Right given to accused to explain incriminating circumstances appearing rt against him, serves a purpose, which cannot be ignored outrightly.
"23. It has been observed that defence witnesses are often untruthful, but that is not to say that in all cases defence witnesses must be held to be untruthful, merely because they support the case of the accused. The right given to the appellant to explain the incriminating circumstances appearing against him serves a purpose, and cannot be ignored outright. In every case the court has to see whether the defence set up by the accused is probable, having regard to the totality of the facts and circumstances of the case. If the defence appears to be probable, the court may accept such defence. This is primarily a matter of appreciation of evidence on record and no straitjacket formula can be enunciated in this regard."
27. Accordingly, the appeal is allowed. Judgment of conviction and sentence dated 19.5.2014 and consequent order dated 22.5.2014, rendered by the learned Addl. Sessions Judge, Kullu, H.P., in Sessions trial No. 39 of 2014 (2012), is set aside. The accused is acquitted of the charge framed under Section 302 IPC. Fine amount, if any, already deposited by the accused is ordered to be refunded to him. Since the ::: Downloaded on - 15/04/2017 19:19:11 :::HCHP 22 accused is in jail, he be released forthwith, if not required in any other case.
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28. The Registry is directed to prepare the release warrant of the accused and send the same to the Superintendent of Jail concerned, in conformity with this judgment forthwith.
( Rajiv Sharma ), Judge.
of
November 05, 2015, ( Sureshwar Thakur ),
(karan) Judge.
rt
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