Karnataka High Court
State Of Karnataka By Commercial Street vs Ashok Fernandez S/O P J Farnandaz on 9 November, 2017
Bench: Ravi Malimath, John Michael Cunha
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
ON THE 9TH DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MR. JUSTICE RAVI MALIMATH
AND
THE HON'BLE MR. JUSTICE JOHN MICHAEL CUNHA
CRIMINAL APPEAL No.927 OF 2011
C/W
CRIMINAL REVISION PETITION No.777 OF 2009
CRIMINAL APPEAL NO.927 OF 2011:
BETWEEN:
STATE OF KARNATAKA
BY COMMERCIAL STREET
POLICE, BENGALURU CITY. ... APPELLANT
(BY SRI P.M.NAWAZ, STATE PUBLIC PROSECUTOR)
AND:
1. ASHOK FERNANDEZ,
S/O.P.J.FERNANDEZ,
AGED ABOUT 53 YEARS,
RESIDING AT NO.529,
RAJA MAHAL VILAS EXTENSION,
BENGALURU.
2. ATIQUE IBRAHIM,
S/O.M.I.PEER,
AGED ABOUT 53 YEARS,
RESIDING AT NO.607,
2
30TH MAIN, BANASHANKARI IIIRD STAGE,
NEAR KEMPEGOWDA MEDICAL
COLLEGE,BENGALURU. ...RESPONDENTS
(BY SRI R.P.CHANDRASHEKHAR FOR
SRI C.H.HANUMANTHARAYA, ADVOCATE FOR R1:
SRI M.T.NANAIAH, SENIOR COUNSEL FOR
SRI C.H.HANUMANTHARAYA, ADVOCATE FOR R2)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(1)
& (3) CR.P.C. PRAYING TO GRANT LEAVE TO FILE AN APPEAL
AGAINST THE JUDGMENT DATED 7.3.2009 PASSED BY THE
ADDL. SINGLE JUDGE & PRESIDING OFFICER, FAST TRACK
COURT-1, BENGALURU CITY IN S.C.NO.220 OF 1991
ACQUITTING THE RESPONDENTS/ACCUSED FOR THE OFFENCE
PUNISHABLE UNDER SECTION 302 AND 307 READ WITH
SECTION 34 OF IPC AND ETC.
****
CRIMINAL REVISION PETITION NO.777 OF 2009:
BETWEEN:
SAI PRASAD
AGED ABOUT 35 YEARS,
S/O V.SATYAMURTHY,
NO.129, INFANTRY ROAD,
BENGALURU. ...PETITIONER
(BY C.V.NAGESH, SENIOR COUNSEL FOR SRI K.RAGHAVENDRA,
ADVOCATE)
AND:
1. ASHOK FERNANDEZ,
S/O.P.J.FERNANDEZ,
AGED ABOUT 50 YEARS,
RESIDING AT NO.529,
3
RAJA MAHAL VILAS EXTENSION,
BENGALURU.
2. ATIQUE IBRAHIM,
S/O.M.I.PEER,
AGED ABOUT 50 YEARS,
RESIDING AT NO.607,
30TH MAIN, BANASHANKARI IIIRD STAGE,
NEAR KEMPEGOWDA MEDICAL
COLLEGE, BENGALURU.
3. STATE OF KARNATAKA
BY THE STATION HOUSE OFFICER,
COMMERCIAL STREET POLICE STATION,
BENGALURU CITY. ...RESPONDENTS
(BY SRI R.P.CHANDRASHEKHAR FOR
SRI C.H.HANUMANTHARAYA, ADVOCATE FOR R1
SRI M.T.NANAIAH, SENIOR COUNSEL FOR
SRI C.H.HANUMANTHARAYA, ADVOCATE FOR R2
SRI P.M.NAWAZ, STATE PUBLIC PROSECUTOR FOR R3)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 READ WITH 401 CR.P.C., PRAYING TO REVERSE
SET ASIDE THE JUDGMENT DATED 07.03.2009 PASSED BY THE
ADDL. SESSIONS JUDGE AND PRESIDING OFFICER, FAST TRACK
COURT-I, BENGALURU CITY IN S.C.NO.220 OF 1991.
****
THIS CRIMINAL APPEAL C/W CRIMINAL REVISION
PETITION, COMING ON FOR HEARING THIS DAY, JOHN MICHAEL
CUNHA.,J DELIVERED THE FOLLOWING:
4
JUDGMENT
This Criminal Appeal is filed by the State and the Criminal Revision Petition is filed by the complainant, questioning the correctness and legality of the judgment and order dated 07.03.2009 passed by the Addl. Sessions Judge and Presiding Officer, Fast Track Court-I, Bengaluru City in S.C.No.220 of 1991 acquitting the respondents (hereinafter called as accused Nos. 1 and 2, respectively) of the charges under Sections 302 and 307 read with Section 34 of IPC.
2. The prosecution case in brief is that on 11.02.1990 at about 4.30 p.m., PW.10 K.Gopi was coming from M.G.Road along with his friend Murali (hereinafter referred to as the "deceased") in his Maruthi van bearing registration No.ATN-3553 on Kamaraj Road. Accused No.1 was coming behind the van on his motorcycle bearing registration No.MMX-6233. It is alleged that accused No.1 voluntarily confronted PW.10 near the junction of Commercial Street and Kamaraj Road for not giving way to overtake and used abusive language and threatened 5 PW.10 saying "bastard, I will take care of you". PW.10 also retorted and went away.
3. On the same day at about 5.30 p.m. while PW.10 and the deceased had parked their car near Safina Plaza, accused Nos.2 and 3 came there on the same motorcycle and parked the Motorcycle behind the Maruthi van. Accused No.2 got down from the motorcycle, caught hold of the collar of PW.10, dragged him out of the van and forced him to beg excuse from his friend, namely, accused No.1 with regard to the incident that had taken place at 4.30 p.m. at the junction. PW.10 freed himself from the clutches of accused No.2 and in the process fisted on the left cheek of accused No.2. By then, accused No.1 who was sitting on the motorcycle got down and fired 5 shots at PW.10 and injured him on the stomach and left hand. On seeing PW.10 being attacked, the deceased got down from the van and went to the rescue of PW.10. Accused No.1 fired a shot on the stomach of the deceased and injured him. The deceased as well as the injured - PW.10 were taken to St.Martha's Hospital and 6 from there to St.John's Hospital. The deceased succumbed to the bullet injury on 13.02.1990 at St.John's Medical College Hospital.
4. During trial, accused No.1 set up a plea of self-defence. In support of this plea, he examined 16 witnesses and produced 31 documents. The Trial Court accepted the defence plea and by the impugned judgment acquitted both the accused. The conclusions arrived at by the Trial Court find place at paras 132 and 133 of the impugned judgment, which read as under:
"132. To sum up the above discussion, it may be said that though prosecution has proved beyond reasonable doubt that it was accused No.1 and 1 alone had caused the death of deceased Murali and caused grievous hurt to PW.10 by injuring them by firing shots at them through his pistol, M.O.1, with the knowledge or intention, yet it has to be said that he is not guilty of the offence under Sec. 302 and 307 IPC as the proved fact established that such acts were committed while exercising his right of private defence of his body and that of accused No.2 under Sec. 97 IPC which right is covered under the chapter General 7 Exceptions and an act done in exercise of the right of private defence is not an offence.
133. As regards accused No.2 is concerned, it has to be said that the evidence obtained on record would clearly negate he having any knowledge of accused No.1 possessing pistol with him at that point of time and the knowledge that accused No.1 intended to fire from it. Accused No.2 has been charged for the offences of murder and attempt to commit murder with the help of Sec. 34 IPC along with accused No.1. But when there is no evidence on record with regard to he having shared common intention with accused No.1 and when this Court has accepted the plea of private defence set up by accused No.1, it has to be held that the charges are not proved against accused No.2 also although it is accused No.2 who is the root cause for the whole incident as the incident occurred when he went and held the shirt collar of PW.10 to ask apology with accused No.1. Accordingly points 1 to 4 are answered in the negative and point No.5 is answered in the affirmative and I proceed to pass the following order:8
Accused Nos. 1 and 2 are acquitted under Sec. 235(1) Cr.P.C. for the offences under Sec. 302 and 307 read with Sec. 34 IPC.
5. Aggrieved by the impugned judgment, the State has preferred the above appeal and the complainant has come up in revision.
6. We have heard the learned State Public Prosecutor appearing for the State, Sri C.V.Nagesh, learned Senior Counsel appearing for Sri K.Raghavendra on behalf of the complainant, Sri Chandrashekar appearing for accused No.1 and Sri M.T.Nanaiah, learned Senior Counsel on behalf of Sri C.H.Hanumantharaya for accused No.2.
7. Learned S.P.P. has taken us through the material documents and the evidence adduced by the prosecution as well as by the defence and would contend that in the fact-situation of the present case, the right of self defence was not available to accused No.1. The Trial Court has failed to appreciate the evidence in proper perspective. The accused themselves were the aggressors. The evidence indicates that as a sequel to the 9 incident that had taken place at the signal at 4.30 p.m., accused Nos. 1 and 2 came near the place where PW.10 and the deceased had parked their Maruthi Van. It was accused No.2 who caught hold of the collar of PW.10 and dragged him out of the car. There was no provocation either by PW.10 or by the deceased. None of them were armed. Quarrel was initiated by accused No.2. Though the defence has contended that PW.10 was in possession of knife, no material is brought on record to show that PW.10 was armed with any knife or deadly weapon.
There is absolutely no evidence to show that PW.10 wielded the knife so as to give rise to an apprehension of danger to the lives of the accused as contended. Therefore, the circumstances proved in evidence clearly indicate that there was no reason for accused No.1 to open fire.
8. Placing reliance on the decision in BABULAL BHAGWAN KHANDARE AND ANOTHER vs. STATE OF MAHARASHTRA (Appeal (Crl.) 1403 of 2004 dated 02.12.2004 the learned S.P.P. would contend that whether in a particular set of circumstances, a person legitimately acted in exercise of his right of private 10 defence is a question of fact to be determined on the facts and circumstances of each case. In determining this question the Court must consider all the surrounding circumstances. 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. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting the necessary facts from the witnesses examined by the prosecution. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of materials on record. But, in the instant case, the evidence adduced by the accused is not sufficient to discharge the burden cast on him even with the standard of preponderance of probabilities. On the other hand, the records reveal that accused No.1 has taken inconsistent and contradictory stand during his evidence before the Trial Court. In his evidence, he has taken up a plea that gunshots were fired accidentally. This plea cannot be reconciled 11 with the plea of self-defence set up by the accused in Ex.P39. The inconsistency brought out in the evidence of accused No.1, who is examined as DW.6, indicates that the defence set up by the accused is false and baseless. The nature of the injuries sustained by the accused negate the right of self-defence. Therefore, the Trial Court has committed a grave error in extending the benefit of self-defence to the accused. Hence, he pleads for setting aside the impugned judgment and to convict both the accused for the offences under Sections 302 and 307 of IPC.
9. Supplementing the contentions advanced by the learned S.P.P., the learned Senior Counsel appearing for the complainant Sri C.V.Nagesh contends that the defence theory is far from truth and is totally unacceptable. Referring to Ex.P.39, the learned counsel would contend that there was absolutely no provocation by the deceased. The deceased was unarmed. He was sitting by the side of PW.10 in the Maruthi Van. Even with regard to the altercation said to have taken place at the signal at 4.30 p.m., the deceased did not get himself involved in the said 12 incident. During the occurrence, he stepped out of the car presumably to rescue PW.10. There is no evidence to show that he inflicted any injury either on accused No.1 or on accused No.2. Therefore there was no justification whatsoever for accused No.1 to open fire and injure the deceased.
10. Placing reliance on various case-laws, the learned counsel would submit that in order to claim the right of private defence extending to voluntarily causing death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehension that either death or grievous hurt would be imminent. In so far as this aspect is concerned, there is no such evidence. Therefore, the plea of self-defence propounded by accused No.1 should have been rejected lock, stock and barrel. He further emphasised that accused No.1 has miserably failed to probabalize the defence set up by him. The theory put forward by accused No.1 that he was tried to run over by PW.10 is proved to be false. In his cross- examination, DW.6 has categorically admitted that he was riding the motorcycle with a speed of 40 kms. per hour whereas the 13 maruthi van was driven by PW.10 at a speed of 80 kms. per hour. Therefore, it was humanly impossible for accused No.1 to overtake the Maruthi Van driven by PW.10 as contended. Hence, the story projected by the accused that as a sequel to the incident that took place at the junction, accused No.2 approached PW.10 demanding him to beg excuse is unbelievable.
11. The learned counsel has further contended that even with regard to the theory that PW.10 attempted to take out the knife is not substantiated with any cogent and acceptable evidence. It is not the contention of the accused, that PW.10 either brandished the weapon or inflicted any knife injury necessitating accused No.1 to resort to self defence. The very existence of the knife having not been proved, the evidence of accused No.1 that he apprehended danger to his life as well as to the life of the co-accused cannot be believed. With specific reference to para 5 of the evidence of DW-6 the learned counsel would contend that even the theory of grappling put forward by 14 the accused is demonstrated to be false. Injuries noted in Ex.P.49 would clearly show that accused Nos.1 and 2 had sustained only minor abrasions and therefore there was absolutely no threat to their lives as sought to be made out.
12. Lastly, the learned counsel would submit that the original plea set up by the accused in terms of Ex.P.39 has been abandoned during trial by taking up the plea that the gunshots were fired accidentally. On this point, the learned counsel has referred to the decision in the case of DR.MOHAMMAD KHALIL CHISTI vs. STATE OF RAJASTHAN AND OTHERS reported in 2012 (8) Supreme Court 613 and would contend that when two versions of the incident introduced by the prosecution are discrepant with each other leading to two sets of evidence which contradicts and strikes at the other; both sides could be convicted for their individual acts and normally in such cases no right of private defence would be available to either party and they will be guilty of their respective acts.
15
13. In support of his argument, the learned counsel has referred to the following decisions viz:
(i) RIZAN AND ANOTHER VS. STATE OF CHHATISGARH reported in AIR 2003 SC 976 (para - 13);
(ii) JANGEER SINGH AND OTHERS VS. STATE OF RAJASTHAN,
reported in 1998 SCC (Cri) 1632 (para - 5);
(iii) SUKHJINDER KAUR VS. JASWANTH SINGH AND ANOTHER, reported in 1997 SCC (Cri) 1219, (para -3);
(iv) DR.MHD.KHALIL CHISTI VS. STATE OF RAJASTHAN AND ORS., reported in 2012 (8) SC 613, (para 32);
(v) ARJUN VS. STATE OF MAHARASHTRA, reported in AIR 2012 SC 2181, (para - 12);
(vi) SIKANDAR SINGH AND OTHERS VS. STATE OF BIHAR, reported in AIR 2010 SC 3580, (para - 22, 29 and 30);
14. The above argument is vehemently opposed by the learned counsel Shri.Chandrashekar, appearing for accused no.1. At the outset, he submits that the contentions urged by the prosecution and the complainant that the defence plea suffers 16 from contradictions and inconsistencies is palpably wrong. He contends that the said argument is canvassed on misreading the evidence of DW-6. There is nothing in the entire evidence of DW- 6 to suggest that the shots were fired accidentally. Rather, it is the consistent defence of accused No.1 that he opened fire only when the deceased and PW-10 charged at him and overpowered him. His reaction to the situation was well within the restrictions provided under the Law. The evidence indicates that before firing at PW-10 and the deceased, accused No.1 fired warning shots in the air and in the ground. When that did not deter PW-10 and the deceased, accused No.1 was left with no other option than to shoot them in self-defence. The learned counsel submits that the location of the injuries would clearly indicate that he did not target on the vital parts of their body so as to impute culpability for the offence of murder.
15. Further, the learned counsel would submit that the conduct of the accused No.1 would also indicate he did not have any mens-rea to cause the death of the deceased. The circumstance proved in evidence indicate that soon after the 17 incident, he rushed to the Police Station, made a clean breast of all the events and submitted a written complaint and surrendered the weapon before the Police. The conduct of the accused is consistent with the plea of self-defence and negates the theory of intentional homicide.
16. The learned counsel has highlighted that even though accused No.1 rushed to the police station soon after the incident and lodged a report as per Ex.P39, the Police Officials deliberately did not act on the said complaint and did not commence any investigation. In the said complaint - Ex.P39, the accused had specifically stated that he was compelled to shoot PW-10 when he tried to remove the knife from the scabbard. But, the Investigating Agency did not take any steps either to search PW-10 or to recover the said knife. The learned counsel has pointed out that PW-10 had never denied the possession of knife with him. Further, he contends that the prosecution has not produced any corroborating evidence to show that the incident has taken place in the manner as narrated by PW-10 in 18 his complaint Exhibit-P19. Therefore, the trial court was justified in accepting the evidence of accused No.1.
17. Learned counsel has referred to the evidence of PW- 23, the Investigating Officer and has laid emphasis on the following part of his deposition, wherein it is elicited as under:
"I have not recorded any statement of any staff of hospital including the Doctor at the time of inquest mahazar. I cannot say who has written Ex.P.19. On 16/02/90 I have sent requisition to Commanding Officer of TB2 Batalian MVG Centre, Bangalore to send one Mahesha to record his statement. I personally went to Batalian. Officer told me that unless the Commanding Officer grants permission to record statement I cannot record the statement of Mahesha. The document shown to me is in my handwriting and it is signed by me. The document is marked as Ex.D.21. Ex.D.21(a) is my signature. It is true that I issued Ex.D.22 after recording the statement of Mahesha. It bears my signature as per Ex.D.22(a)"
(underlining supplied) 19
18. It is the submission of the learned counsel that the above evidence clearly indicates that a material eye-witness by name Mahesha was very much present at the spot during occurrence. His statement was also recorded by the Investigating Officer. But for reasons best known to the prosecution, the said eye-witness is neither cited in the charge- sheet, nor has he been examined before the Court; therefore an adverse inference has to be drawn against the prosecution. Dilating on this point, the learned counsel has also referred to the evidence of PW-22, with reference to para- 9, wherein it is elicited as under:
"I came to know from our men that one Army Officers came to the PS and informed that an incident is going on and he has to go out for attending the roll-call. It is not true to suggest that Army Officer came to the PS when the ACP was enquiring these two accused, when he was asked to give statement he told us that he will attend the roll-
call, take the permission and come and give statement. It is not true to suggest that all the investigation that I have done had been done by me at the instance of the DCP-Jayaprakash. I made an 20 entry in the CD to show who had produced the pistol before me. I also handover the CDs to CW.40."
(underlining supplied)
19. This evidence once again would indicate that there was another eye-witness to the incident. This eye-witness even offered to give his statement. Since this material evidence was withheld by the prosecution, the defence was constrained to examine the said witness as DW-3. The account given by DW- 3 is in consonance with the testimony of DW-6/accused No.1 and is in conformity with the statements found in Ex.P39 lending full corroboration to the plea of self defence set-up by the accused. Therefore the Trial Court was justified in accepting the plea set up by the accused.
20. On the question of appreciation of the evidence, the learned counsel, on referring to the judgment of the Hon'ble Supreme Court in the case of STATE OF HARYANA VS. RAM SINGH, reported in (2002) 2 SCC 426, would submit that the defence having led-in independent evidence in support of the plea of self-defence, the defence witnesses are entitled to equal 21 treatment and equal respect as that of the prosecution. "The credibility and the trustworthiness ought also to be attributed to the defence witnesses on par with that of the prosecution in assessing the evidence tendered on behalf of the accused."
21. Meeting the argument of the learned counsel that inconsistent plea set-up by the accused would render the defence ineffective, the learned counsel has laid hands on the judgment of the Hon'ble Supreme Court in the case of MOTI SINGH VS. STATE OF MAHARASHTRA reported in (2002) 9 SCC 494, wherein at para Nos.10 and 11 it is held as under:
"10. Regarding the contention that the appellant is disentitled to get the benefit of right of private defence as he failed to make out a plea in that regard, we may point out that it would be quite unjust to deny such a right to the accused merely on the ground that he adopted a different line of defence. If the evidence adduced by the prosecution would indicate that the accused were put under a situation where they could reasonably have apprehended grievous hurt even to one of them it would be inequitable to deny the right of private defence to the accused merely on the ground that he 22 has adopted a different plea during the trial. The crucial factor is not what the accused pleaded, but whether the accused had the cause to reasonably apprehend such danger. A different plea adopted by the accused would not foreclose the judicial consideration on the existence of such a situation.
11. This Court has stated the above legal position time and again. A three-judge Bench of this Court in State of U.P. v. Lakshmi has stated thus: (SCC pp 341-42, para 17) "17. The law is that burden of proving such an exception is on the accused. But the mere fact that the accused adopted another alternative defence during his examination under Section 313 IPC without referring to Exception I of Section 300 IPC is not enough to deny him of the benefit of the exception, if the Court can cull out materials from evidence pointing to the existence of circumstances leading to that exception. It is not the law that failure to set up such a defence, would foreclose the right to rely on the exception once and for all. It is axiomatic that burden on the accused to prove any fact 23 can be discharged either through defence evidence or even through prosecution evidence by showing a preponderance of probability".
22. On the question of the extent of the right of self- defence, the learned counsel has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of DARSHAN SINGH VS. STATE OF PUNJAB AND ANOTHER reported in (2010) 2 SCC 333, with reference to paras - 24, 25 and 28, which read as follows:
"24. The rule as to the right of private defence has been stated by Russell on Crimes (11th Edn., Vol.1, p.491) thus:
"..... 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 24 until the danger is ended, and if in a conflict between them he happens to kill his attacker, such killing is justifiable."
25. When enacting Sections 96 to 106 of the Penal Code, excepting from its penal provisions, certain classes of acts, done in good faith for the purpose of repelling unlawful aggressions, the legislature clearly intended to arouse and encourage the manly spirit of self-defence amongst the citizens, when faced with grave danger. The law does not require a law-abiding citizen to behave like a coward when confronted with an imminent unlawful aggression. As repeatedly observed by this Court there is nothing more degrading to the human spirit than to run away in face of danger. The right of private defence is thus designed to serve a social purpose and deserves to be fostered within the prescribed limits.
26. xxxxx
27. xxxxx
28. But there is another form of homicide which is excusable in self-defence. There are cases where the necessity for self- defence arises in a sudden quarrel in which both parties engage, or on account of the 25 initial provocation given by the person who has to defend himself in the end against an assault endangering life."
23. Sri.M.T.Nanaiah, the learned Senior Counsel appearing for accused No.2 at the outset submitted that the entire investigation conducted in the instant case is perfunctory, partial, one-sided and tainted to the core. The learned senior counsel has emphasized that soon after the incident, without any loss of time, accused No.1 lodged the complaint with the Commercial Street Police. The case was registered, but the investigating agency slept over the matter. The records reveal that the Investigating Officer proceeded to the spot only on the next day. This lapse on the part of the Investigating Agency has given rise to suspect the role of the Investigating agency. The learned Senior Counsel pointed out that the incident having taken place in a public place, in front of a commercial complex, in a busy area, the scene of offence was left unguarded, thereby allowing the crucial evidence to disappear from the scene of offence.
26
24. He further contended that the cartridges seized from the spot are not proved to have been discharged from the firearm, MO.1. The evidence of the Ballistic Expert is not clear as to the distance from which the shots were fired. On the other hand, the testimony of DW-3, DW-6 and DW-7 clearly indicates that during the scuffle the shots were fired from close range, which probabalises the defence plea that the shots were fired in a bid to save their lives when PW-10 and the deceased over- powered accused No.1. Dilating on this point, the learned senior counsel would submit that the testimony of DWs-3, 6 and 7, clearly establishes that there was a scuffle between the parties. Their oral testimony is corroborated by the medical evidence. It is proved that accused Nos.1 and 2 had sustained injuries during the incident. It is immaterial whether the injuries sustained by them are grievous or simple in nature. The very fact that these injuries are caused during the incident would indicate that there was a physical violence against the accused and under the said circumstance, the accused No.1 was well-justified in resorting to self-defence. Further the material on record would clearly 27 indicate that the accused have not exceeded the right of self- defence. The location of the injuries itself is a proof of the fact that Accused No.1 did not intend to kill the deceased or to injure PW-10.
25. Further the learned counsel contends that the sequence of events established in evidence disclose that from noon, the deceased as well as PW-10 were drunk. PW-7 who treated PW-10 has clearly stated that PW-10 was under the influence of heavy alcohol. The relevant portion of his evidence of PW-7, General Surgeon, reads as follows:
"I came to know the patient was smelling of alcohol at 6.30 p.m. It is true from the time of consumption of alcohol it starts excreting through all the excretions. It is true 5% of alcohol excreted through breath. Another 5% through urine. The rest excretes through breath, blood, urine and stools. It is true it disappears from blood at the rate of 10 to 15 0.0 per hour. It is true even after a lapse of 2 ½ hours the patient was smelling alcohol, that probablises that he must have consumed heavy alcohol. It is true that the person under the influence of alcohol behaves carelessly, carefreely and callously."28
Thus, the learned counsel has sought for dismissal of the appeal and the revision.
26. We have bestowed our careful thought to the rival submissions made by the parties and have meticulously examined the records. There is no dispute as to the fact that on account of the gun shot injuries inflicted by accused No.1, the deceased died on 13.02.2009 at about 9.00 p.m., and PW-10 suffered grievous injuries. On considering the oral and documentary evidence produced by the parties, the trial court has recorded a categorical finding that accused No.1 caused the death of the deceased and also caused grievous hurt to PW-10 by firing gun shots with M.O.1. The trial Court however has accepted the plea of self-defence set-up by the accused.
27. Therefore, the only question that arises for consideration is: "whether the gunshot injuries were inflicted by accused No.1 with an intention to kill the deceased and to cause grievous hurt to PW-10 or whether he inflicted the said injuries 29 in exercise of the right of private defence within the meaning of Section - 97 of IPC?"
28. The right of private defence is essentially a defensive right and a reflexive action. It is circumscribed by the provisions of Section-96 to 106 of IPC. This right is available only when the circumstances clearly justify it. Section - 102 of IPC lays down that :
"102. 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 the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues.
29. The Hon'ble Supreme Court in the case of BABULAL BHAGWAN KHANDARE AND ANOTHER VS. STATE OF MAHARASHTRA, Appeal (Crl.) 1403 of 2004 has explained that -
"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 30 circumstances of each case". It is further held therein, that "the burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record".
30. In the light of the above principles, let us now proceed to analyse the evidence and the material on record, to determine whether the act of the accused in causing the death of the deceased and in causing grievous injuries PW-10 fall within the protective umbrella of the plea of self-defence envisaged under Section-97 of Indian Penal Code or not?
31. In order to prove the occurrence and the manner in which the incident took place, the prosecution has mainly relied on the testimony of PW-10. He is the injured eye-witness. According to PW-10, on 11.02.1990, he along with the deceased were going in a Maruthi Van towards Kamaraj Road at about 4.30 p.m. He was driving the van. When they reached in between Cubbon Road and Kamaraja Road, he stopped his 31 vehicle at the signal light and after the signal was cleared, he started moving towards Kamaraja Road. At that time, accused No.1 who was riding a two-wheeler attempted to overtake his vehicle. But as he could not overtake him, he cursed and scolded PW-10 and called him a 'bastard'. PW-10 also retorted and called him 'bastard'. Thereafter, PW-10 and the deceased went to the house of PW-11 and from there, they came near Safina Plaza and parked their car opposite to Safina Plaza. The further narration given by PW-10 is that - accused no.2 came there and caught his shirt. As he was not knowing accused No.2 earlier, he got upset. Accused No.2 asked him to apologize to accused No.1 for not allowing him to overtake. The further evidence of PW-10 reads as under:
"Then I got down and hit Accused No.2. In the meanwhile accused No.1 shot me; then the deceased came running, then Accused No.1 also shot Murali".
32. According to PW-10 he sustained injury on his abdomen and left hand. Thereafter, PW-11 came to the spot 32 and took them to the hospital. PW-10 further deposed that he himself drove the van and took the deceased to his house, before going to the hospital. According to PW-10 his statement was recorded in the presence of the Doctor as per Exhibit-P19. He further, deposed that he was treated as inpatient for 29 days and his clothes was also handed over to the Police.
33. In the cross-examination, it is elicited that he had taken food in the hotel and before lunch he had taken beer. He further answered that the Police did not seize the knife from him on that day. It is also elicited that Ashoknagar Police had filed a case against him for the offence punishable under Section - 292 of IPC, numbered as C.C.No.24154 of 1995 on the file of 11th Addl. CMM, Bengaluru. The same Police had registered in C.C. No.96 of 1994, C.C.No.25496 of 1996 and another case in C.C.No.24477 of 1996 against him. Likewise, Crime No.101 of 1997 and Crime No.422 of 1997 were also registered against him. In the cross-examination, he admitted that in his complaint he did not state anything about the incident that had taken place 33 at the signal at Kamaraj Road. This part of his evidence is shown as improvement.
34. Here itself it is relevant to note that PW-10 has narrated bare minimum details of the incident. His evidence is rather sketchy and superficial. He has avoided to mention the details of the occurrence. His evidence proceeds as if accused Nos.1 and 2 came to the place where they had parked the car, in a preplanned design and dragged him out of the van. The tenor of the evidence suggests that there was absolutely no provocation for accused No.1 to open fire. His evidence is to the effect that except fisting on the face of accused No.2, neither the deceased nor PW-10 were involved in physical violence with accused No.1. He has nowhere stated that during the occurrence either of the accused had sustained injuries.
35. In appreciating the evidence of PW-10, it is important to note that the prosecution has not adduced any corroborating evidence to support the version of PW-10. We find from the records that except the medical evidence, no other 34 material is available to hold that the incident had taken place as narrated by PW-10. The medical evidence in our opinion, runs contrary to the testimony of PW-10. According to the prosecution, PW-10 had sustained the following injuries viz:
"1. Two entry wounds at the right lower quadrant of the abdomen.
2. Two entry wounds in the right lumbar region of anterior abdominal wall.
3. Single entry wound posterior aspect of left arm near elbow."
36. PW-16 who treated PW-10 has deposed that the patient was conscious and well-oriented when he was brought to the hospital. PW-16 has also narrated about the injuries suffered by the deceased. According to him, the deceased had sustained the following injuries:
"1. An entry wound measuring 0.5 cms in diameter to the right and above the umbilicus."
37. PW-16 has specifically stated that there were no other injuries on the deceased. Thus, the medical evidence goes 35 to show that apart from the gun shot injuries, no other injuries were suffered either by PW-10 or by the deceased. It is significant to note that, the injuries noted by PW-16 do not correspond to the ocular testimony of PW-10 inasmuch as PW-10 has nowhere asserted that he had sustained five gun shot injuries. He has merely stated that he sustained injury on his left hand and abdomen. Even according to the prosecution only two bullets were recovered from the body of PW-10. There is no explanation by the prosecution as to how PW-16 could observe five entry wounds on the abdomen and the left arm of PW-10. This discrepancy creates serious doubt about the authenticity of the medical evidence produced by the prosecution.
38. Be that as it may, in order to counter the testimony of PW-10, accused No.1 has entered the witness box and has examined himself as DW-6. According to DW-6, he saw PW-10 for the first time on 11.02.1990 at about 4.30-4.45. p.m. On that date DW-6 was proceeding on his motorbike to go to his branch office at Commercial Street. He was going via Residency Road, St.Marks Road, M.G. Road, and Kamaraj Road. So 36 proceeding, he heard the screeching of tyres and loud music from a vehicle coming on his left. He saw a brown Maruthi Van with a bison horn fixed on the top. He observed that the said Maruthi Van was about to hit him. In order to avoid the hit, he sped up his motorcycle and took a left turn towards Kamaraj Road. The said Maruthi Van followed him. There also the van tried to hit him. In order to avoid the van he took the motor bike on a road divider over the road to go to other side of the road. The incident took place at the junction of Kamaraj and Cubbon road. Again the said vehicle tried to hit him at the junction between two junctions. When he reached Commercial Street, he swerved towards left into Commercial Street. The Maruthi van proceeded straight. He reached the branch office and called accused No.2, as he was afraid and explained to accused no.2 that some members of M.P.Jayaraj gang were trying to kill him. Thereafter both of them decided to go to the Head Office at Richmond Circle for the purpose of security, as many of the employees were working in that office and also to prepare the complaint.
37
39. DW-6 further deposed that as they were proceeding to the Head Office, when they came near the junction of Dispensary Road and Main Guard cross road, again they saw the same brown Maruthi Van slightly ahead of them driving in an erratic manner. A beer bottle was thrown from the front left window. Again the van was driven in a zig zag manner and after going some distance again another beer bottle was thrown out and thereafter the van stopped along side the pavement. He took the motor cycle to the extreme right side of the road and proceeded towards Safina Plaza. When they proceeded 30-40 feet away, accused No.2 who was sitting as a pillion rider on his motor bike asked him to stop the motor bike saying that the persons sitting in the Maruthi Van are not the members of M.P.Jayaraj gang, but may be the friends of his friends at Commercial Street and he would enquire them as to what was the matter. Hence, he stopped the motorbike at about 60 feet away from the van. Accused No.2 went towards the Van to enquire. As he started talking with the driver, suddenly the driver came out of the van and caught hold of accused No.2 and 38 started beating him severely. Another person who was sitting in the front left seat also came out and started assaulting accused No.2. They pushed accused No.2 towards the compound wall. At that time, DW-6 noticed that the PW-10 was trying to pull out a knife from his scabbard from his right hip. Immediately he pulled out the pistol and fired a warning shot in the air and also shouted to the assailants to leave and let them go. Since, they did not listen, he again fired for the second time in the air. At this time both the assailants left accused No.2 and came running towards him. He was at a distance of 20 feet. By seeing them charging at him he again fired into the ground and asked them to stop. But, PW-10 caught hold of his right hand towards the palm area with which he was holding the pistol and was trying to pull out the knife from his hip. The second assailant namely, the deceased caught hold of his shirt and started hitting him with hand on his face and left shoulder. He also noticed that they were fully intoxicated. They pushed accused No.1 about 15 to 20 feet. At one point, accused No.1 started falling backwards on the road and the two assailants were falling upon him. At that 39 time two or three shots of the pistol went out. Thereafter all three fell on the ground. Accused No.1 was on the ground and two assailants were upon him. The second assailant then got up and went towards the Safina Plaza and sat on pavement. The first assailant also got up.
40. According to PW-10, soon after the incident he and accused No.2 proceeded to the Police Station and he lodged a report as per Exhibit - P39. It may be necessary to extract the contents of Exhibit - P39. It reads as follows:
To, The Sub-Inspector of Police Commercial Street, Police Station, Bengaluru.
Sir, Ref: Shooting incident in front of Safina Plaza **** At 5.30 p.m. on 11.2.1990 I was riding my motor cycle from my office (Foto Flash, Richmond Circle) to my branch office at Commercial Street on 40 M.G.Road, a dark coloured Maruthi Van No.ATN 3553 speeding from behind tried to knock me down. I turned left on Kamaraj Road and this same van followed me and tried to run me over three times between the junction of Brigade Road and M.G Road and Commercial Street. I turned left on to Commercial Street and the Van did not follow me but went straight ahead. I met my friend and business associate Md.Ateique Ibrahim at 161, Commercial Street (our branch office) and we decided to go to our head office at Richmond circle and then report the entire incident to the Police Commissioner directly. As we exited from Commercial Street towards Safina Plaza, we saw the same van traveling in front of us in a very erratic manner. Two beer bottles were thrown out from the van on to the left of the road. The van then stopped in front of Safina Plaza where vehicles normally park. We stopped the Motor Cycle. and Md.Ateique Ibrahim approached the van driver to find out why they had made an attempt to run me down. As he approached the van both the driver and passenger got out of it and started beating Md.Ateique Ibrahim very severely. The driver of the van was wearing a knife scabbard on his belt and made an effort to open it. Both of them were absolutely intoxicated and I was convinced 41 that they were about do kill Md.Ateique Ibrahim I approached them and fired two shots in the air (from my pistol, of which I am a licence holder for the past five years) and told them to leave Md.Ateique Ibrahim alone. Both of them rushed towards me and I fired another shot into the ground to warn them off. They grabbed me pushed me right across the road along saying that they were going to finish me off. I then fired two shots during the scuffle and I am sure that I wounded them somewhere in the lower stomach region. The van driver immediately, went to the van, started it and two passers by helped the other wounded person to get into the van and they drove of towards Bowring Hospital. The Md.Ateique Ibrahim and I immediately went to the commercial Street police station and informed them about this incident and I surrendered my weapon to the SHO and have subsequently written this complaint at commercial street Police Station.
Yours faithfully Sd/-
(Ashok Fernendez) 42
41. The fact that this complaint was lodged by accused No.1 as per Ex.P39 is proved by the prosecution by examining PW.22. PW.22 was the Station House Officer of Commercial Street Police Station on the relevant date. According to him, on 11.2.1990, at 6.30 p.m., accused No.1 appeared before him to give a complaint in respect of the incident that took place at Safina Plaza in the evening. He gave him a white paper. Accused No.1 wrote the complaint and gave it to PW.22. Through this witness, the prosecution has marked the said complaint as Ex.P39. PW.22 has even identified the signature of accused No.1 which came to be marked as Ex.P39(a). PW.22 further deposed that based on the said complaint, he registered the F.I.R. and forwarded the same to the Magistrate. The further evidence of PW.22 goes to show that accused No.1 produced a pistol before him. He seized it in the presence of the panchas under mahazar Ex.P1. Through this witness the said pistol also has been marked as M.O.1.
43
42. The contention of the accused is that Ex.P.39 complaint having been admitted in evidence by the prosecution, it is estopped from denying the veracity of the contents thereof, nor is it entitled to dispute its proof. We are not impressed by this argument. No doubt it is true that by admitting in evidence the complaint Ex.P39, we are confronted with a situation where the prosecution itself has introduced two versions, one based on Ex.P39 and the other based on Ex.P19, yet having regard to the evidentiary value of Ex.P39 and Ex.P19-which is not a substantive piece of evidence, this contention may not enure to the benefit of any of the parties. Notwithstanding the marking of the complaint, Ex.P39 and Ex.P19 the parties are required to prove their respective case by adducing acceptable and reliable evidence. Hence without going into the question whether Ex.P39 in effect serves as the FIR or a mere statement under Section 161 of CR.P.C or whether by marking Ex.P39 the prosecution is precluded from disputing the version spoken to by Accused No.1, we have undertaken the task of assessing the evidence adduced by both the parties to find out as to which of the two versions is 44 true and correct? In evaluating the evidence we have treated the defence evidence at par with that of the prosecution witnesses by ascribing the worth it deserves as held in the case of State of Haryana vs. Ram Singh(2002) 2 SCC 426 relied on by the learned counsel for accused No.1.
43. To begin with, as already noted above, there is no corroboration whatsoever to the testimony of PW-10. He did not aver anything in Ex.P.19 or in his deposition before the court about the injuries sustained by the accused. The complaint lodged by him at Ex.P.19 proceeds on the premise that, without there being any provocation or any scuffle, accused No.1 opened fire and caused injuries. But the evidence adduced by the prosecution by examining the Doctor PW-24 indicates that on the date of the incident, accused No.1 was subjected to medical examination and on examining him, PW-24-Doctor noted the following injuries:-
1. An Abrasion of 1"x 1" over the posterior aspect of the left elbow. Bleeding was present.45
2. Abrasion of ½ by ½" over the right little and ring finger, bleeding present.
The opinion given by PW-24 is marked as Ex-P49(a). Likewise, the very same Doctor has noted the injuries on accused No.2 as under:-
1. Swelling of the lower left eye-lid, measuring 2" x 1"
with bluish discolouration.
The medical certificate relating to accused No.2 is marked as Ex- 49(b).
44. This evidence is contrary to the testimony of PW-10 regarding the manner of the incident. PW-10 has nowhere stated in his evidence that any of the accused had sustained either minor or bleeding injuries. Non explanation by the prosecution regarding the injuries sustained by the accused is a factor which could affect the credibility of the witnesses leading to doubt the very genesis of the occurrence. In this context, it may be useful to refer to the observations made by the Hon'ble Supreme Court 46 of India in the case of SIKANDAR SINGH VS. STATE OF BIHAR, AIR 2010 SC 3580, wherein, it is observed as under:-
"Finally, the third question for consideration is as to what is the effect of non-explanation of injuries suffered by appellant Sheo Jee Singh. It cannot be held as an unqualified proposition of law that whenever the accused sustains an injury in the same occurrence, the prosecution is obliged to explain the injury and on failure of the prosecution to do so, the prosecution case has to be disbelieved. In Takhaji Hiraji v. Thakore Kubersing Chamansingh and Ors., a Bench of three Judges of this Court, referring to earlier three-Judge Bench decisions, observed that before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect prosecution case, the Court has to be satisfied of the existence of two conditions: (ii) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of occurrence in question."
45. In the instant case, there can be no two opinions that the injuries noted in Ex.P49 were suffered by the accused during the occurrence. The circumstances brought out in the 47 evidence clearly indicate that soon after the incident, accused Nos.1 and 2 proceeded to the police station and after registration of the complaint, they were referred to the medical examination. It is not the case of either of the parties that they sustained these injuries in any other transaction. The above evidence leads to the inference that during the occurrence, there was a scuffle as contended by accused No.1 in his evidence as well as in his complaint Ex-P39. This evidence goes in support of the version depicted by accused No.1 that during the occurrence when the deceased and PW-10 grappled him he had resorted to open fire in self-defence.
46. Coming to the sequence of events narrated by accused No.1, we find that in addition to his testimony regarding the manner in which the incident took place, he has produced reliable corroboration by examining accused No.2 as DW-7. We do not find it necessary to reproduce the evidence of DW-7 in extenso as this witness has also deposed in consonance with the testimony of DW-6 with regard to the commencement of the incident and the overt acts committed by PW-10 and the 48 deceased. We do not find any inconsistency or variance whatsoever in the testimony of DW-6 and DW-7. The prosecution has not been able to bring out even a single circumstance to show that these witnesses are not truthful or reliable and the incident had not taken place as narrated by them. We find that the oral testimony of DW-6 and DW-7 are implicitly reliable and acceptable.
47. Considering the evidence of accused No.1 vis-a-vis the evidence of PW.10, we are of the view that the evidence of Accused No.1 is more probable, reliable and nearer to truth compared to the evidence of PW-10. PW.10 has suppressed the essential details and has deposed as if he was attacked by the accused without any reason or provocation. But the circumstances proved in evidence go to show that the incident has taken place as a sequel to the incident that had taken place at 4.30 p.m. on that day which fact is conspicuously absent in the evidence of PW.10. More than that what inspires confidence in the testimony of DW-6 is the prompt lodging of the complaint with the police at the earliest point of time. This fact in our 49 opinion lends credibility to the version projected by accused No.1 in his complaint Ex-P39. We have already narrated the circumstances leading to the registration of FIR, which goes to show that soon after the incident, accused Nos.1 and 2 directly proceeded to the police station. The Station House Officer has even gone to the extent of stating that he himself gave a sheet of paper to them and the complaint was transcribed by accused No.2 on the dictation of accused No.1. The sequence of events brought out in the evidence of DW-6 and DW-7 indicate that there was absolutely no occasion for them to introduce any concocted or coloured version. A prompt lodging of the FIR is insisted with a view to avoid danger of introducing an exaggerated or coloured version, as a result of deliberation or consultation. In the instant case, the circumstance discussed above clearly indicate that there was absolutely no opportunity for the accused either to manipulate or concoct the theory of self defence as reflected in Ex-P39. This is an important circumstance which adds veracity and credence to the testimony 50 of DW-6 and DW-7 leading to the inference that the incident has taken place as narrated by the accused.
48. The conduct of the accused lends further support to the view that it was not a premeditated or motivated act. Accused No.1 has made a clean breast of the events that prompted him to shoot PW-10 and the deceased. He has incriminated himself in Ex.P39. Even before the Court, he has deposed in line with the events narrated in the complaint. He did not shy away from the witness box and even in the witness box, he has admitted to have shot PW-10 and the deceased. Though the learned counsel for the accused has tried to make out that accused No.1 has taken inconsistent stand during trial, in our view, the said contention appears to have been advanced by misreading the evidence of DW-6. We have already extracted the relevant portion of the evidence of DW-6 in the preceding para of this judgment. There is nothing in the entire evidence to indicate that the shots were fired accidentally. It is a basic principle in the realm of appreciation of the evidence that evidence has to be read as a whole, and not in 51 isolation. If the evidence of DW-6 is read in entirety it conveys a clear meaning that during the scuffle, when he was over- powered by deceased and PW-10, he opened fire. No-doubt, it is true that in so many words, he has not stated that he fired on the abdomen of the deceased and on the lower limbs of PW-10, but the fact remains that accused No.1 has unequivocally stated that during the scuffle, the shots were fired at PW-10 and deceased. This evidence in our opinion does not lead to any inconsistency or discrepancy either in the narration of the events or in the stand taken by DW-6 in his evidence during trial as contended by the prosecution.
49. An endeavor has been made to show that the defence evidence suffers from irreconcilable contradiction with regard to the use of bullets. Referring to the evidence of DW-6 and the statements made by him in Exhibit-P39, the learned counsel would contend that the specific defence of accused No.1 is that on seeing PW-10 coming towards him, he initially fired two shots in the air and one shot in the ground and when the deceased and PW-10 charged towards him and held him and 52 pushed him on the ground, two shots were fired from his pistol, M.O.1. According to the learned counsel for the complainant, this evidence would indicate that five bullets were discharged from the weapon, M.O.1, but the evidence brought on record goes to show that only one bullet was recovered from the body of the deceased and two bullets were removed from the body of PW-10 and four spent cartridges (M.O.4) were found at the spot, making it in all seven bullets. Contrary to this DW.6 has categorically stated in Exhibit-P39 that when he surrendered the pistol, it was empty. The prosecution has also proceeded on the basis that there were no bullets in M.O.1 at the time of its seizure. But during the evidence, it has been elicited through the Ballistic Expert that the said pistol, M.O.1, could accommodate eight bullets. DW-6/Accused No.1 has stated in his cross- examination that after firing the shots, five bullets were still remaining in the fire arm, M.O.1. These contradictions are irreconcilable and expose the falsity of the plea set-up by the accused, that three warnings shots were fired by him to deter the deceased and PW-10. The very fact that the cartridges said 53 to have been fired in the air or in the ground are not recovered would also indicate that accused No.1 did not fire any warning shots, but directly pumped the bullets into body of the deceased and PW-10, thereby falsifying the plea set up by the accused.
50. The discrepancy highlighted by the learned SPP and the learned counsel for the complainant regarding the number of bullets fired from M.O.1, in our view, does not affect the veracity of the testimony of DW-6 or DW-7. Firstly, there is no clear evidence as to whether M.O.1 was fully loaded with 8 bullets at the time of the incident. Secondly, the prosecution has failed to prove that the four cartridges (M.O.4) found at the spot were fired from M.O.1. Undisputedly M.O.1 was a licensed pistol. DW-6 namely Accused No.1 has unequivocally stated that M.O.4 were not fired from M.O.1 and has asserted in his evidence that he was using Belgium made cartridges called "animo". Therefore it was all the more necessary for the Investigating Officer to investigate into this aspect to rule out any ambiguity in the identity of M.O.4. Thirdly, as we have already noted, the spot of occurrence was left unguarded. At the 54 earliest point, accused had intimated the police that firing had taken place at the spot. In the complaint, he had specifically stated that one shot was fired on the ground. If only the Investigating Officer was alert and had got into action promptly, necessary evidence even with regard to traces of the shots fired in the ground could have been detected or the evidence in this regard could have been gathered. For the lapse of the investigating agency, the case of the accused cannot be disbelieved. The facts brought on record indicate that the Investigating Officer did not act on the complaint Ex.P39 with the earnestness it deserved. This delay undoubtedly has benefited PW.10 and the deceased. This delay and the consequent advantage given to PW.10 for introducing a different story relating to the occurrence would safely permit us to infer that the omissions and the commissions of the SHO or the I.O were at the behest of PW.10 and were intended to suppress the true genesis and the manner of the incident. Therefore the said discrepancy in the number of shots fired from M.O.1 in our considered view, cannot be taken as a factor to doubt or 55 disbelieve the oral testimony of DW-6 and DW-7 regarding the occurrence.
51. The above conclusion gets further strengthened by the fact that the very same Investigating Officer filed a 'B' report on the complaint lodged by Accused No.1 even though the said complaint was prior in point of time and the Investigating Officer was well aware that Ex.P19-complaint lodged by PW-10 and Ex.P39 related to the same occurrence. This is another circumstance in proof of the tainted investigation conducted in the case. However to determine the real truth about the factum of warning shots fired by accused No.1, we draw sustenance from the direct evidence of DW-3, an independent witness examined by the defence. As already stated above, the learned counsel for the accused have pointed out the circumstances in which the prosecution has omitted to cite DW-3-as a prosecution witness, even though he was examined and his statement was recorded during investigation. Nonetheless, the defence has examined him as DW-3. In his evidence, he has unequivocally stated that before firing at the deceased and PW-10, two shots 56 were fired in the air and one in the ground. This testimony of DW-3 has not at all been discredited in the cross-examination. Undoubtedly, DW-3 is an independent witness. He was present at the spot of occurrence. PW-22 who recorded the first FIR has stated that DW-3 came to be police station and informed about the incident. PW-22 goes to the extent of saying that he sought permission of the higher officers of DW-3 to record his statement. This evidence clearly indicates that DW-3 was an eye witness to the incident. Even otherwise, a perusal of the evidence of DW-3 indicates that he was very much present during the incident. He even goes to the extent of stating that during the occurrence, some coins and notes fell on the ground and he picked them up and tried to hand them over to the injured and to the accused. All these circumstances therefore renders his testimony reliable and truthful. We do not find any reason to doubt or disbelieve his evidence. In our view, the evidence of DW-3 alone is sufficient to hold that apprehending danger to the life of accused No.2, when PW-10 fisted him on his face and thereafter held him and pushed him, accused No.1 fired 57 two shots in the air asking the deceased as well as PW-10 to leave accused No.2. The evidence of this witness further establishes that even though shots were fired in air, it did not deter either the deceased or PW-10. This evidence coupled with the testimony of DW-6 and DW-7 clinchingly establishes that when the deceased and PW-10 advanced towards accused No.1 and overpowered him, he was constrained to fire at them in private defence. Hence, we have no hesitation to hold that the narration made by accused No.1 in Ex.P39 as well as in his evidence are truthful and reliable.
52. Even though it is vehemently argued that the real motive and intention of the accused was to kill the deceased and to cause grievous injury to PW-10, yet, the circumstances brought out in the evidence do not lead to this conclusion. If infact, accused had intended to do away with the life of the deceased and PW-10, at the first instance itself, accused No.1 would have fired at them when they were sitting inside the car. Instead, the evidence indicates that accused No.2 approached PW-10 to enquire about the incident that had taken place at the 58 junction at 4.00 p.m., Undisputedly, accused No.2 was not armed at that time. If the accused intended to murder the deceased or to injure PW.1, accused No.1 who was armed with pistol would not have sent or allowed accused No.2 to enquire PW-10 or the deceased unarmed. This is another circumstance to show that there was absolutely no intention whatsoever on the part of the accused either to kill the deceased or to cause grievous injuries to PW-10.
53. The location of the injuries is yet another factor which goes in favour of the defence set up by the accused. Undisputedly, the accused did not shoot on the vital parts of the deceased or PW.10. PW.10 himself has deposed that he sustained the injuries on the lower part of his body and even thereafter, he drove the vehicle and proceeded to the house of the deceased. In the course of the cross-examination, it is elicited from the mouth of DW.6 that after wounding PW.10 and the deceased, five bullets were still left in the pistol. This stray sentence appears to have come on record by slip of tongue as rightly contended by the learned counsel for the accused as it 59 cannot be reconciled with the total number of bullets discharged from M.O.1, nonetheless even if for the sake of argument it is assumed that five bullets were still left in the pistol as contended and the accused infact intended to murder the deceased and PW.10, in all probability he would have fired the said bullets at the deceased and PW.10 to ensure their end. That has not happened. All these circumstances therefore indicate that accused No.1 did not entertain the intention to murder the deceased or injure PW.10, rather he acted on the spur of the moment in exercise of the right of private defence.
54. Further, the circumstances proved in evidence indicate that the shots were fired in a close range. PW.8 - the Ballistic Expert examined by the prosecution has stated that PW.10 received the bullets within a distance of 24 inches. The defence set up by the accused is that during the scuffle, the shots were fired, which again is in conformity with the theory of private defence set up by the accused. Therefore, on overall consideration of all the above facts and circumstances of the case, we are of the considered view that the defence has not 60 only probabalised the plea of private defence but has also proved the said defence by adducing clinching evidence to demonstrate that the incident has taken place as narrated in Ex.P39 and not as deposed by PW.10. Even otherwise, the evidence of PW.10 has remained uncorroborated. As already stated above, except the interested testimony of PW.10, there is no other acceptable material to substantiate the case of the prosecution that the incident has taken place as suggested by PW.10 and that with intent to murder the deceased and to cause grievous injuries to PW.10, accused Nos.1 and 2 acted in concert to commit the offence. No doubt it is true that the gun shot injury caused by accused No.1 has led to the death of the deceased and has inflicted grievous injuries on PW.10, but as it is proved in evidence that the said injuries were caused only in exercise of private defence, the Trial Court was well justified in accepting the plea set up by the accused. In a situation where a person is confronted with the danger to his life, the law itself permits the person to preserve his life even by causing death or bodily injury to the assailant. In such a situation, it cannot be expected of 61 him to calculate with precision the locus of the injury and the likely effect thereof. At times, the person exercising the right may appear to have exceeded the right of self defence by causing the death, but as observed by the Hon'ble Supreme Court of India in VIDHYA SINGH vs. STATE OF M.P. (1971) 3 SCC 244, "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 courtroom, or that which would seem absolutely 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 62 only that much which is required in the thinking of a man in ordinary times or under normal circumstances."
55. Further, in DARSHAN SINGH vs. STATE OF PUNJAB & Another, (2010) 2 SCC 333, the Hon'ble Supreme Court has followed the legal position enunciated in BUTA SINGH vs. STATE OF PUNJAB (1991) 2 SCC 612 and in para 57 thereof has noted as under:-
"10. ... a person who is apprehending death or bodily injury cannot weigh in golden scales on the spur of the 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 commences as soon 63 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 hypertechnical 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 the 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."
56. Thus, on overall consideration of all the facts and circumstances of the case, in the light of the principles laid down 64 in the above decisions, we are of the firm view that accused No.1 has resorted to private defence only on the apprehension of imminent threat to the life of accused No.2 and himself. The circumstances discussed above clearly establish that the accused have not only probabalised the defence but have also proved the facts constituting the right of private defence. The Trial Court has appreciated all these facts and circumstances in proper perspective and has arrived at the right conclusion. We are in agreement with the reasonings assigned by the learned Trial Judge in support of the findings recorded in the impugned judgment. We do not find any justifiable reason to accept the contentions urged either by the learned Public Prosecutor or by the learned counsel appearing for the complainant. The impugned judgment does not suffer from any error or infirmity calling for interference by this court. Moreover, the State having preferred the appeal against an order of acquittal, as we concur with the view taken by the Trial Court, the appeal as well as the revision are liable to be dismissed.
65
Consequently, Criminal Appeal No.927 of 2011 filed by the State as well as the Criminal Revision Petition No.777 of 2009 filed by the complainant are hereby dismissed. The impugned judgment and order dated 07.03.2009 passed by the Addl. Sessions Judge and Presiding Officer, Fast Track Court-I, Bengaluru City in Sessions Case No.220 of 1991 is confirmed.
Sd/- Sd/-
JUDGE JUDGE
Cm/-jj.mn.bss