Allahabad High Court
Rafal And Others vs State on 13 March, 2019
Bench: Pritinker Diwaker, Umesh Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on 15.02.2019
Delivered on 13.03.2019
CRIMINAL APPEAL No. - 2250 of 1988
1.Rafal
2.Tilak Ram
3.Ompal Accused-appellants
Versus
State of U.P. Respondent
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For Appellant :- Sri Udai Bhan Singh,Advocate
For Respondent :- Sri Amit Sinha, A.G.A.
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Hon'ble Pritinker Diwaker,J.
Hon'ble Umesh Kumar,J.
Per: Umesh Kumar, J
1. This appeal is directed against the impugned judgment and order dated 23.09.1988 passed by learned 4th Addl. Sessions Judge, Saharanpur in S.T. No. 371 of 1985 arising out of Crime No. 238 of 1982, by which, he has convicted the accused-appellants Rafal, Tilak Ram and Ompal for life imprisonment under Section 302 read with Section 34 of IPC, and under Section 323 read with Section 34 IPC for one year rigorous imprisonment. Both the sentences were ordered to run concurrently.
2. Briefly, the facts giving rise to this appeal are that the informant-Brahamanand gave a report on 06.07.1982 at about 03.15 a.m. in the morning at police station, Jwalapur, sub-district Roorkie, Saharanpur, alleging that they had an old enmity with Rafal and Tilak Ram. On 05.07.1982, brother-in-law of Rafal came to his village at about 8.00 p.m. in the night. His son Babu Ram was going to his house and when he reached in front of the house of accused-Rafal, Rafal armed with Pathal (daranti), accused Tilak Ram armed with Ballam and accused- Ompal armed with lathi surrounded Babu Ram and assaulted him. On the cry of Babu Ram, Budh Singh son of Mukunda, nephew of informant who resides with him, ran to rescue Babu Ram, accused-Rafal saying that "Lage haath isko bhi nipta lo" all three accused persons started beating him. On the alarm being raised by Babu Ram and Budh Singh, Jai Pal, Bhir Singh, Jai Mal, Suresh and Brahammanand challenging the accused persons in order to save Babu Ram, rushed towards the spot. Accused-Rafal, Tilak Ram and Ompal, after causing injuries to Babu Ram and Budh Singh fled towards south. After receiving injuries, Babu Ram-deceased fell down on the ground. The informant and his cousin Hari Singh took away injured Babu Ram and Budh Singh to PHC, Bahadarabad by tractor, where the injured persons were medically examined. Babu Ram being serious, was referred to GD hospital, Hardwar. The medical report along with Tahrir was filed by him, Ex.Ka-1., thereafter, chik FIR Ex.Ka-10 was registered as Crime No. 238 of 1982 under Sections 324, 323 of IPC at Police Station Jwalapur, Sahranpur against the appellants. Babu Ram and Budh Singh were medically examined by Dr. C.P. Bhatia (PW-6) on 6.7.1982 at PHC Bahadarabad. The medical reports are Ex.Ka-8 and 9. During examination, the doctor found following injuries respectively on the bodies of Babu Ram and Budh Singh-injured;
Babu Ram:
1. An incised wound 2/1/2 cm x ½ cm x 1 cm in size on the scalp, 6 cm above and right to external occipital protuberance.
2. Incised wound 6 cm x 1 cm at the scalp, 10-1/2 cm above external occipital protuberance.
Budh Singh:
1. A traumatic swelling 6 cm x 3 cm in size on the lower part of (L) fore arm, 3 cm above the (L) wrist joint antewrist.
3. During treatment, on 7.7.1982 at about 7.30 a.m., injured-Babu Ram expired on account of injuries sustained in the incident on 6.7.1982. Thereafter, inquest was conducted by the Investigating Officer- Dharmpal (P.W.5) which is Ex.Ka-3. After preparing relevant documents/records (Ex.Ka-4 to Ex.Ka-7), the dead body of Babu Ram was sent for post mortem examination, which was conducted by doctor Yashpal Singh(P.W.4) who has proved the post mortem report ( Ex. Ka-2) and has found following injuries;
1. Stiched wound 5.5. cm long on the scalp 9 cm above the route of right ear. On cutting the stiches the wound was bone deep with clotted blood. Margins of the wounds were lacerated.
2. Stiched wound 2 cm long on the middle of the posterior part of scalp 5 cm below and behind injury no.1. On opening the stiched wound was found to be bone deep with clotted blood and lacerated margins.
3. Stiched wound 3 cm long immediately below injury no.2 which was also bone deep with lacerated margins.
4. Abrasion 1 cm x 2 cm on the left index finger.
5. Abrasion 5 cm x 2 cm on the right half of the back below the right shoulder blade.
4. After death of deceased-Babu Ram, the case was converted into Section 302 of IPC through GD No. 33 on 8.7.1982 (Ex.Ka-12). During investigation, statements of witnesses were recorded. Spot inspection note Ex.Ka-13 was prepared and after completion of investigation, charge sheet against the appellants- Rafal, Tilak Ram and Ompal was filed under Section 302/323 of IPC which is Ex.Ka-15. The trial Judge framed charge under Sections 302/34 of IPC and Section 323/34 of IPC against all three appellants.
5. The prosecution in support of its case has examined as many as 11 witnesss. P.W.1 Brahamanand, eye witness P.W-2 Jaipal, eye witness P.W.3- Budh Singh, Dr. Yashpal Singh P.W.4, Dhanpal Singh P.W.5, DR. C.P. Bhatia P.W.6, Head Moharri-Ram Charan Lal (P.W.7) who prepared chik FIR and GD entry, P.W.8 Sukh Pal Singh, P.W.9 Kripal Singh, P.W.10 Kailash Giri. P.W. 8 and P.W.9 have conducted the investigation of the case. P.W.10 Kailash Giri is village Pradhan and P.W.11 Mahak Singh is a formal witness and custodian of dead body after panchayatnama till supurdgi for post mortem examination
6. So as to hold accused-appellants guilty, statements of the accused-appellants were also recorded under Section 313 Cr. P.C. In which, they pleaded their innocence and false implication due to enmity and claimed trial. The accused-Ompal in his statement under Section 313 Cr.P.C. denied the prosecution version and has stated that on the said date, he was at his sister's residence to meet her. A quarrel took place in which Brahammanad, Mam Chand, Ram Singh and Budh Singh came in the sehan(gher) of Rafal. They assaulted Chhatra, Tilak Ram and Mukhtara and him. Rafal-accused has stated in his statement under Section 313 Cr.P.C that Ompal is his brother-in-law and due to partibandi in the village, they have been falsely implicated. Witness Kailash Giri belongs to the party of Brahamanand. Tilak Ram-accused has also denied prosecution version and has stated that on 04.7.1982, he was constructing his house(pakka Makan). The house of Brahamanand is adjacent to his house. Brahamanand etc. were jealous of it. They started pelting stones/bricks and on 05.07.1982, the next day, in the morning, when he complained, they abused him, later on in the evening of 6.7.1982 when father-in-law of his brother Chhatra and Ompal son of Chhatra were present at his house, then Brahamanand, Ram Singh, Mam Chand, Budh Singh and Babu Ram entered in his house and beaten Tilak Ram, Ompal, Mukhtara and Chhatra badly. Chhatra and Mukhtara defended themselves with Lathi. He reported the matter at the police station, but entire version was not written by the person who was writing the same. He and Ompal were arrested at the police station. Copy of his report was not provided to him. In the cross case, he was sent to jail and was bailed out after a month. When he came out, he came to kow that in his report, name of Babu Ram was missing. He filed a complaint case on 5.10.1982 against Brahamanand and others in the Court. In the said event, Tilak Ram-accused himself, Ompal, Mukhtara and Chhatra received major injuries. They were medically examined at Jwalapur hospital. He has further stated that he has been falsely implicated in the case only to get rid of the cross case instituted against Brahamanand and others by him.
7. D.W.1-Chatra and D.W.2-Dr.G.K. Singh have been examined as defence witnesses.
8. The doctor has examined D.W.1 Chhatra, an injured eye witness of defence and found following injuries;
1. Contusion 2'' x 1 '' on the back of right chest middle point
2. Contusion 2/12'' x 3'' on top of right shoulder (Reddish)
3. Contusion 4'' x ¾ '' on the outer side of left leg upper part.
4. Lacerated wound ¾'' x 1/5'' x muscle on the inner side of right leg middle part (blood clott) K.U.O.
9. Dr. G.K. Singhal has been examined as D.W.2 who has proved injury report of injured accused-appellants- Ompal and Tilak Ram and other injured (Ex. Ka-3 to Ex.Ka-6) and has found following injuries;
Appellant-Ompal:
1. Lacerated wound 2/12'' x ½'' muscle deep on the left side of head 3'' above the eye brow (blood clott).
2. Contusion 2''x ¾'' scrab abrasion ½'' x 1/5'' on the right shoulder ( Reddish).
3. Swelling 2'' x ½'' on the left cheek.
4. Contusion 3'' x ¾'' scrabed abrasion 1/5'' x 1/5 '' on the back of left upper arm in middle (Reddish).
5. Swelling 3'' x'' on the front and outer part of left thigh.
6. Swelling 4'' x 3'' on the back of left thigh in middle.
7. Swelling 3' x2'' on the right thigh upper part.
Appellant-Tilak Ram:
1. lacerated wound ½'' x 1/5 ii muscle deep on left side of head 4'' above the ear (blood clott).
2. Contusion 6'' x3/4'' swelling 8'' x 3'' on the ball of right chest upper front(Reddish)
3. Abrasion 1/1/2'' x ½'' on the right shoulder blade.
4. Contusion 7'' x ¾'' on the back of left chest upper and middle Reddish.
5. Contusion 2'' x 1'' on the back of left chest middle part (Reddish).
6. Contusion 4'' x 1 '' swelling 4' x 3'' on the back of outer part of left upper arm(Reddish).
7. Contusion 2- 3''x3/4'' and 2''/3/4'' on the back of right upper arm and middle upper part(Reddish).
8. Swelling 3''x2'' on front of right palm.
9. Swelling 3''x3'' on the outer and front of right leg lower part.
10. Swelling 4''x3'' abrasion 1/2'x1/2'' on front ....part of right once.
11. Swelling 2''x2'' on the back of left leg middle part.
12. Swelling 4''x3'' scrab abrasion 1/5 ''x1/5'' on the outer side of left ankle.
Appellant-Mukhtara:
1. Lacerated wound 3/4'' x 1/5'' X scalp deep with swelling 4'' x 3'' on the right side of head 3-1/2 above the ear.
2. Contusion 1-1/2'' x 3/4'' on the left hip bone.
3. Swelling 2'' x 1'' on the front of right thigh upper part.
4. Scabed abrasion 1'' x 3'' on the fron of left knee.
5. Complaint of pain in abdomen but no mark of injury was present.
10- These injuries cannot be said as superficial injuries in any term.
11. We have heard learned counsel for the appellants, learned AGA for State and have perused the record.
12. Learned Counsel for the appellants has argued that it is a case of private defence. The presence of P.W.3 at the place of occurrence is doubtful. The accused had also sustained as many as 26 injuries in the incident. No blood was found at the place of occurrence, nor any blood sample was taken from the place of incident. There is a cross case of the incident which is accepted by the prosecution, but the injuries of accused and other injured has not been explained by the prosecution and lastly, he has argued that the prosecution has not come with clean hands, and it is a case where, the prosecution has concealed the genesis of the prosecution case and has not brought true facts before the Court.
13. Learned AGA denying the submissions advanced on behalf of appellants and supporting the findings of the learned trial Judge, has stated that the prosecution version is supported by the eye witnesses, the injuries received during the occurrence are supported by medical evidence. The injuries found on the body of accused-appellants and other injured persons from the side of accused-appellants are superficial which need not to be explained.
14. P.W.1 Brahamanand (informant) and father of deceased has stated that the accused-Rafal and Tilak Ram are the brothers, while accused Ompal is brother-in-law of Rafal. He has stated in his statement that on the date of incident, at about 7.30- 8.00 p.m., he along with Jaipal, Budh Singh and Suresh were sitting in his baithaka, when they heard noise and on hearing the noise, Budh- Singh ran and they all followed him. When they reached in front of the house of accused-Rafal, he saw accused-Rafal armed with patal(daranti), Tilak Ram armed with ballam(spear) and Ompal armed with lathi, assaulting Babu Ram. When Budh Singh tried to rescue Babu Ram, he was also assaulted by the accused persons. On seeing them, all the accused persons ran away towards south. He further stated that Babu Ram and Budh Singh have sustained injuries and they were medically examined in hospital at Bahadrabad. Doctor referred Babu Ram to Haridwar hospital, where he admitted Babu Ram. Thereafter, he dictated report to Iqbal Ahmad and on this tahrir, first information report was lodged at Police Station Jwalapur. He also submitted medical report at the police station along with report. This witness has exhibited written report (Ex.Ka-1). He has also exhibited blood stained baniyan, pajama and kaccha as material (Ex.Ka-1,2 and 3). He has admitted in his cross examination that at the time of occurrence, day was going to set and it was about 7-8 p.m. In the FIR, time of occurrence is shown about 8.00 p.m. Subsequently, he has admitted that there was sufficient light so as to identify accused persons. He has further stated that he rushed to the spot on hearing cry of his son. Budh Singh was one step ahead. They reached on the spot challenging the accused persons and when they reached at the place of occurrence, accused persons were running towards south. Babu Ram was lying on the ground and his clothes were drenched with blood. He stated that he did not remember whether blood had fallen on earth or not. When the I.O. visited spot, at about 8-00 -8.30 pm.in the morning, no blood was found there. Budh Singh also received one lathi blow during incident. Though, minor discrepancies are available in the testimony, but in totality, this witness is reliable.
15. P.W.2 Jaipal in his examination-in-chief has stated that they were sitting in the baithaka of Brahamanand on the day of occurrence and hearing the cry of Babu Ram, Budh Singh rushed towards the house of accused-Rafal on kharanja, then he, Suresh, Brahmanand and Bhir Singh also followed him. He has stated that Rafal Singh, Ompal and Tilakraj were beating Babu Ram. Accused-Rafal armed with Patal(daranti), Tilakraj armed with ballam(spear) and Ompal armed with lathi. They have also beaten Budh Singh and both of them received injuries. Babu Ram died due to injuries caused in the incident. In his cross examination, he has stated that Budh Singh was 5-7-10 steps ahead to them and when they reached, Budh Singh was being beaten by all three accused persons, but Budh Singh received only one injury of lathi, because he turned behind the scene. This fact was confronted with his statement under section 161 of Cr.P.C. He has stated that he cannot assign any reason that how this was not recorded in his statement. He further stated that they did not follow accused persons and accused persons fled away. This witness is partially supporting the event as asserted by the prosecution.
16. P.W.3 Budh Singh is also said to be an eye witness of the occurrence. He has supported the prosecution version and has stated that accused Rafal, Tilakraj and Ompal were assaulting Babu Ram in front of the house of Rafal. Accused Rafal was having Patal(daranti), Tilakraj having ballam(spear) and Ompal was armed with lathi. When he reached there, he raised alarm and just thereafter, Suresh, Brahamanand, Jaipal and Bhir Singh arrived there. He and Babu Ram have received injuries. They were medically examined in the hospital at Bahadarabad and thereafter, Babu Ram was referred to Haridwar. In his cross examination, he stated that when he reached at the spot, immediately received a lathi blow. He further stated that whether he told this fact to the I.O. or not that he got back and despite attack by all three accused persons, he received one lathi blow. He has also stated that Babu Ram fell down on earth. He did not see that on the earth, there was any blood or not. This witness reached at the place of occurrence while Babu Ram was being beaten by the accused persons, wherein he also received one lathi blow. Contrary to the above assertion, defence has taken strong plea that on 5.7.1982 at 8.00 p.m. in the evening, accused Brahamanand, Ram Singh, Babu Ram, Mam Chand and Budh Singh armed with lathis reached at the house of Tilak Ram and they all assaulted accused Tilak Ram, Mukhtara and Chataru in which accused persons have received injuries. P.W.1 Brahamanand has also denied that in defence, Mukhtara and Chataru caused injuries to Babu Ram and Budh Singh. He also denied the fact that in defence, they had falsely instituted this case. In this reference, in his cross examination, P.W.3 Budh Singh has denied that neither they assaulted the accused nor the accused received any injury in the incident. He has admitted the fact that a cross case of this event is pending against him. He has denied that on the said date, at about 8.00 p.m., he, Brahamanand, Ram Singh, Babu Ram and Maam Chand armed with lathi went to the house of Tilak Ram and there they assaulted Chataru, Mukhtara, Ompal and Tilak Ram and in defence, Mukhtara and Chataru caused injuries to them.
17. In this connection, statement of P.W.7 Head Moharrir who exhibited check report and G.D. (Ex.Ka-11 and Ex.Ka-12), has admitted that check of cross case, on written report was given by Tilak Ram upon which he executed chek FIR and that is on the record of ST. No. 392 of 1985 ( State Vs. Brahamanand & others) and copy of that check FIR is marked as (Ex.Kha-1). He has also admitted the fact that entry of this FIR is GD No. 15 at 6.35 a.m. He has also filed certified copy of GD as (Ex.Kha-2).
18. P.W.8 Sukhpal Singh, SHO has admitted in his cross examination that cross case of (present case) was investigated by him and he after completing investigation has submitted charge sheet under Sections 323 of IPC against Brahamanand, Ram Singh, Mam Chand and Budh Singh. In this reference, medical examination conducted by Dr. G.K.Singhal who has examined D.W.2 in the present case also clearly denotes that during same incident, accused Ompal, Chatara, Mukhtara and Tilak Ram also received injuries. Doctor has also clarified that all the injuries to the injured might have been caused around 8.00 p.m. on 5.7.1982. He also stated that injury reports of the injured persons were prepared during examination ( the original injury reports) are in the file of S.T. No. 392 of 1985( State Vs. Brahamanand & others). Certified copies of those documents are exhibited by this witness as (Ex.Kha-3 to Ex.Kha-6)
19. D.W.1 Chataru also in his statement has stated that on the day of occurrence, while he was sitting in sehan of the house of accused-Rafal along Mukhtara, Ompal and Tilak Ram, then Ram Singh, Babu, Budh Singh, Brahmanand and one other person, all armed with lathis came and started beating them and we also defended ourselves with lathis.
20. From above facts and circumstances, existence of cross case on the strength of private defence, cannot be brushed aside completely. In Criminal Appeal No. 1881 of 2011 (Ganesh Datt Vs. State of Uttrakhand), the Apex Court, while referring to the observations made in the case of Babulal Bhagwan Khandare and another Vs. State of Maharashtra (2005)10 SCC 404 has observed as under;
" Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. The eye witnesses who deny the presence of injuries on the person of accused are leying on most material point, and therefore, their evidence is unreliable. It assumes much greater importance where the evidence consists of interested or inimical witnesses. In the present case, admittedly there was enmity between the accused family and the deceased family and PWs 1 to 3 are interested as well as inimical witnesses and their denial of injuries on the person of accused, makes their evidence unreliable."
21. In this case, enmity between the parties is admitted, which is explicit in the statements of Brahamanand P.W.1 and Jaipal -P.W.2.
22. The rationale behind the theory that cross cases should be tried together is to avoid conflicting judgments over the same incident because if cross cases are allowed to be tried by two different courts, there is likelihood of conflicting judgments and when in the present case, the Investigating Officer has submitted charge sheet under sections 323 of IPC in respect of the same incident and thus, it would have been just, fair and proper to decide both the cases together by the same Court.
23. In the case in hand, right of private defence also comes into motion on the basis of material which are available on record. As far as onus is concerned, we find that there is ocular and documentary evidence to sustain the concept of preponderance of probability. It cannot be said that there is no material on record or scanty material to discard the plea. In Mohd. Ramzani Vs. State of Delhi 1980 Supp. SCC 215, it has been held that it is trite that the onus which rests to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence with which the accused is charged, beyond reasonable doubt.
24- In State of M.P Vs. Mishrilal and others (2003)9 SCC 426, it has been observed as under;
"2.We think that the fair procedure to adopt in a matter like the present where there are cross case, is to direct that the same learned Judge must try both the cross cases, one after the other. After the recording of evidence in one case is completed, he must hear arguments but he must reserve the judgment. Thereafter, he must proceed to hear the cross case and after recording all the evidence he must hear the arguments but reserve the judgment in that case. The same learned Judge must thereafter dispose of the matters by two separate judgment. In deciding each of the case, he can rely only on the evidenced recorded in that particular case. The evidence recorded in the cross case cannot be looked into. Nor can the Judge be influenced by whatever is argued in the cross case. Each case must be decided on the basis of evidence which has been placed on record in that particular case without being influenced in any manner by the evidence or arguments urged in cross case. But both the judgment must be pronounced by the same learned Judge one after the other."
25. Now adverting to the user of right of private defence, the Apex Court in the case of James Martin Vs. State of Kerala (2004)2 SCC 203 has observed in paras-18 and 19 as under;
18. The right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly (see Vidya Singh Vs. State of M.P).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 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 only that much which is required in the thinking of a man in ordinary times or under normal circumstances."
19. In the illuminating words of Russel ( Russel on Crime, 11th Edn. Vol.I at p.49):
"...a man is justified in resisting by force anyone who manifestly intends and endeavors by violence or surprise to commit a known felony against either his person, habitation or property. In these case, he is not obliged to treat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended and if in a conflict between them he happens to kill his attacker, such killing is justifiable."
26. We find that in the present case, three accused persons have been named who assaulted deceased- Babu Ram. The injury report of Babu Ram clearly shows that he has received two incised wounds and one lacerated wound and the doctor has opined that injury no.3 might have been caused by lathi blow and this shows that all the miscreants have used their weapons only once.
27. We feel it necessary to quote herein below the provisions of Sections 99, 101 and 102 of the Indian Penal Code;
99. Acts against which there is no right of private defence.--There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law. There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
Extent to which the right may be exercised.--The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
Explanation 1.--A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.
Explanation 2.--A person is not deprived of the right of private defence against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.
100. When the right of private defence of the body extends to causing death.--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;
(Secondly) --Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
(Thirdly) -- An assault with the intention of committing rape;
(Fourthly) --An assault with the intention of gratifying unnatural lust;
(Fifthly) -- An assault with the intention of kidnapping or abducting;
(Sixthly) -- An assault with the intention of wrongfully confining 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.
101. When such right extends to causing any harm other than death.--If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death.
28- Admittedly, accused-appellants received injuries during the altercation and as per defence version Mukhtara and Chataru used lathi in their defence, but injuries caused on the body of the deceased-Babu Ram clearly shows that those injuries were caused by some sharp weapon, i.e. tabals/ballam and the defence has established its case only up to probabilities and not to the hill and therefore, we can draw an inference that during such altercation, in defence accused Rafal & others used tabals/ballam to inflict injuries on the body of deceased- Babu Ram and caused his homicidal death and it can well be concluded that the accused had a right of private defence but no doubt, they have exceeded it.
29- In Bhanwar Singh and others Vs. State of Madhya Pradesh (2008)16 SCC 657, it has been ruled to the effect that for a plea of right to private defence to succeed in totality, it must be proved that there existed a right to private defence in favour of the accused, and that this right extended to cause death and, if the court were to reject the said plea, there are two possible ways in which this may be done, i.e. on one hand, it may be held that there existed a right to private defence of the body, however, more harm than necessary was caused or, alternatively, this right did not extend to cause death and in such a situation, it would result in the application of Section 300 Exception 2. Exception 2 of Section 300 of IPC read as under;
"Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence".
30- Therefore, in the present case, if at all, right of defence was available to the accused persons, keeping in mind the injuries sustained by them, it can safely be said that they have exceeded their rights of self defence.
31. After a careful scrutiny of the entire evidence, facts and circumstances of the case in its entirety, it appears that without any premeditation, the accused-appellants have committed the offence.
32. Thus, in our considered view, the offence committed by the accused-appellants was only 'culpable homicide not amounting to murder'. Under the circumstances of the present case, we are inclined to bring down the offence from first degree murder to 'culpable homicide not amounting to murder'.
33. In view of above discussion, we partly allow this appeal and hold the appellants guilty of the offence under Section 304 Part-I of IPC and not under Section 302 IPC.
34. Having held that the accused-appellants are guilty of offence under Section 304 Part-I of IPC, we hereby award a sentence of ten years rigorous imprisonment and a fine of Rs. 5,000/- each, in default thereof, to undergo simple imprisonment for one month. The judgment and order under challenge, is modified to the above extent.
35. During pendency of the appeal, the appellants were on bail. However, they were taken into custody, in pursuance of this Court's order dated 13.4.2018 and 8.10.2018 and presently, they are in jail.
36. Registry is directed to transmit the original record along with this judgment to the concerned trial Court, for immediate compliance and to ensure that the appellants serve out the remaining sentence, as per this judgment.
37. Appeal is, accordingly, disposed of.
(Umesh Kumar, J) (Pritinker Diwaker, J)
Order Date :- 13. 03-2019
Shahid