Madhya Pradesh High Court
Sunil Gangrade vs State Of M.P. on 2 December, 1996
Equivalent citations: 1997(2)MPLJ133
Author: Shambhoo Singh
Bench: Shambhoo Singh
JUDGMENT R.D. Shukla, J.
1. Appeal is directed against the judgment and order dated 22-6-1992 of First Additional Sessions Judge, Khargone, passed in S. T. No. 139/86 whereby while acquitting two accused persons viz. Hariom and Baldeo, accused-appellant Sunil has been convicted Under Section 302 of Indian Penal Code for having committed murder of Gangaram on 4-6-1986 at about 6.30 PM in village Birul and sentenced to imprisonment for life.
2. The prosecution story in brief is that P.W. 8 Karan and accused Sunil are running a betel shop probably on the road and outer skirts of village Birul. Gangaram was taking betel from the shop of Sunil. It appears that some amount (nearly Rs. 2/-) remained unpaid and, therefore on demand Sunil refused to give betel to Gangaram. There was some exchange of abuses in between the two. Some persons intervened and Sunil went to his house. It is further alleged that after some time Sunil, Hariom and Baldeo called Gangaram, abused him and accused Sunil stabbed him (Gangaram) by a Gupti (sharp edged pointed weapon) on the left side of chest and between 5th intercostal space. Gangaram walked few steps and fell down in front of the shop of Karan.
3. Police Officer Mahavirsingh (PW 9) was on Gashta duty. Karan (PW 8) lodged report. The same was recorded as Dehati Nalishi (Ex. P/11) and was sent for registration of offence. Shri Shersingh (PW 7) Head Constable recorded the same as FIR (Ex. P/10) and registered offence Under Section 302, Indian Penal Code vide Crime No. 137/86. Police officer Mahavirsingh (PW 9) prepared site map Ex. P/8 and inquest report vide Ex. P/7 after calling the witnesses vide Ex. P/12. Stained and controlled earth was seized vide Ex. P/9. The body of Gangaram was sent for post mortem examination.
4. Dr. Anand Sadh (PW 1) conducted autopsy and found as follows:
Stab wound present through and through from chest anteriorly from 5th costal cartilage on left side 2" laterally from the mid line and posteriorly in the 7th intercostal space 2" laterally from spinal cord. Size 1" x 1" x posteriorly in 7th intercostal space through thorax. Margins inverted clear and regular. There was through and through injury on the lower lobe of left lung and over paricardium. Through and through injury was on both the ventricles. The injury was ante mortem. Deceased died due to syncope as a result of excessive haemorrhage and shock due to stab injury.
Dr. Anand prepared report Ex. P/1.
5. Accused persons were arrested. After usual investigation three accused persons were prosecuted. All of them pleaded not guilty and false implication. Learned trial Judge has acquitted two accused persons and convicted and sentenced the present accused appellant. Hence this appeal.
6. The contention of learned counsel for appellant is that the prosecution witnesses are near relations. They are not reliable. Dehati Nalishi and consequently FIR is ante-dated. Telephonic message given by Karan has not been produced.
7. The second contention of learned counsel for appellant is that deceased was aggressor. Accused paused injury in exercise of right of self defence.
8. As against it learned counsel for the State has supported the case of prosecution and submitted that the presence of witnesses i.e. P.W. 4 Hariram and P.W. 8 Karan is natural.
In reply to second contention of learned counsel for appellant, learned counsel for State has submitted that there was no occasion for reasonable apprehension of death or grievous hurt and, therefore, stabbing on the chest was not justified.
9. We were taken to the evidence on record.
The fact of homicidal death by stab wound has not been seriously challenged. Even otherwise that stands proved, apart from the evidence of two eye-witnesses i.e. P.W. 4 Harirarn and P.W. 8 Karansingh, and P.W. 9 Mahavir Singh who prepared inquest report; from the evidence of Dr. Sadh who conducted autopsy on the body, and opined as above.
10. Nine witnesses have been examined by the prosecution. Dr. Anand Sadh (PW 1) has proved the injury and autopsy report. P.W. 3 Jairam is a witness of sealing of certain articles. P.W. 5 Shivram is a witness of Inquest Report.
P.W. 7 Shersingh, Head Constable has proved the fact of registration of offence vide FIR (Ex. P/10) on the basis of Dehati Nalishi (Ex. P/12). P.W. 9 Mahavirsingh has proved the fact of Dehati Nalishi lodged by Karan (PW 8). P.W. 6 Shri C. P. Jhara has proved the fact of arrest of accused persons. Accused Sunil gave information about Gupti vide Ex. P/5. The same was seized vide Ex. P/6. P.W. 2 Kashi Ram, examined as eye-witness, has turned hostile and not supported the case of prosecution.
P.W. 4 Hariram and P.W. 8 Karan have also been examined as eye-witnesses of the incident and they have supported the case of prosecution. P.W. 4 Hariram in his examination-in-chief has stated that there was exchange of abuses between Sunil and Gangaram. Sunil challenged him (Gangaram) for coming up to him and further threatened to cause injuries. Deceased Gangaram picked up two stones and pelted at Sunil. Out of the two stones pelted as such, one hit at Sunil. Gangaram went up to the shop of Sunil for picking up more stones and it was at this juncture that Sunil stabbed Gangaram by Gupti. Sunil took out Gupti after piercing it. Gangaram raised alarm and walked up to the shop of Karan and fell down. This witness has stated about the presence of himself, Karan and Kashiram at the time of incident and further stated that other persons ran away from the place of incident.
11. During cross-examination this witness has admitted that earlier there was exchange of abuses between Sunil and Gangaram. Gangaram had hurled filthy abuses towards Sunil and threatened him to kill. Gangaram had consumed liquor. He has further admitted that Gangaram came second time after consuming some more liquor and again started abusing Sunil by mother and sister and further threatened to kill him.
12. He has then admitted that Sunil also retaliated and hurled abuses and the moment Gangaram started pelting stones, other persons present in the shop of Sunil, ran away.
13. Defence has tried to show some contradictions about as to whether Gupti was kept in the shop and as to whether Gangaram tried to pick up stones from the ground second time. First objection is not of much value, second we would discuss a little later.
14. P.W. 8 Karan has lodged Dehati Nalishi (Ex. P/11). That stands proved from the statement of P.W. 9 Mahavir Singh. This witness has admitted that before arrival of police officer he had sent telephonic message regarding the incident. The telephonic message has not been produced in the court and, therefore, it has been submitted that the material piece of evidence has been suppressed.
We do not agree with the contention of learned counsel for appellant, as cryptic message received on telephone cannot be treated to be a FIR. The information which is complete at least in respect of story of incident can only be treated as a FIR.
15. P.W. 8 Karan has also stated that prior to the actual incident of causing of injury, there was exchange of abuses between Gangaram and Sunil. Gangaram was sent back to his house. Thereafter Sunil armed with Gupti, acquitted accused Baldeo and Hariom armed with lathi came and challenged Gangaram and started abusing him and thereafter Sunil stabbed Gangaram on the chest by Gupti. He has stated about some assault by Hariom and Baldeo but that story has not been believed by learned trial Judge and there is no appeal by the State against the two acquitted accused persons.
16. This witness has given slightly different story of the incident. According to this witness after earlier exchange of abuses accused came prepared, challenged Gangaram, abused him and thereafter stabbed him.
As against it, P.W. 4 Hariram has stated that Gangaram came second time. He was over-drunk. He started hurling filthy abuses towards Sunil second time and pelted stones on Sunil and at his shop. Scared with this, persons present in the shop of Sunil ran away.
This witness Hariram (PW 4) has not been declared hostile by the prosecution and, therefore, prosecution is bound by the statement of Hariram.
17. Where two inferences of a fact can be drawn or where two different stories disclosed by the prosecution evidence the story which is in favour of accused and akin to his innocence ought to be accepted.
In view of above, we are inclined to accept the story given by P.W. 4 Hariram. It is noteworthy, as admitted by Hariram in para 3 of his statement that Karan is his brother and Gangaram was the mother's sister's son of this witness. Thus, Hariram is equally a near relation of Gangaram as that of Karan. There is no reason as to why Hariram would give a false story in favour of the accused.
18. Now, therefore, what comes out from the prosecution story is that Gangaram came to the shop of Sunil second time (he has hurled filthy abuses earlier also and was asked by Hariram and others to go back to his house) and again hurled abuses to Sunil. He (Gangaram) pelted stones on Sunil. One stone hit at Sunil. The persons present in the shop were scared. He again tried to pick up the stone for pelting and causing injury to Sunil. It was at this juncture that Sunil stabbed him. The stabbing has taken place in front of the shop of Sunil. Thus, deceased Gangaram was an aggressor. He had no business to go to the shop of Sunil and hurl abuses. He not only caused provocation by hurling filthy abuses but further aggravated the matter by pelting the stones. The persons present there were scared and ran away from the place of incident. In such a situation Sunil had a reasonable apprehension, if not of death but at least of grievous injury.
19. Section 100 of Indian Penal Code provides that right of private defence of body extends to causing death or any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions, namely:-
(i)... ... ... ...
(ii) Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault."
20. Gangaram (deceased) was pelting stones. He had consumed liquor and came to the shop of Sunil second time. In such a situation the reasonable apprehension of causing of grievous hurt at the hands of Gangaram can be assumed.
21. The reasonable apprehension here would mean the apprehension in the mind of ordinary prudent man and not in the mind of a person who is extra cautious.
22. Law neither requires that a person should be coward nor expects that the person faced with danger should leave the place and run away. The reasonableness of apprehension would be a matter of fact and can differ from incident to incident. While assessing the accrual right of self defence, golden scale cannot be applied. It will depend on the facts of each and every case and where a man of ordinary prudence apprehends a danger at the hands of assailant he would be entitled to react in exercise of right of self defence subject to the restrictions of Sections 98 and 99 of Indian Penal Code .
23. Gangaram (deceased) was not only trying to cause injury to Sunil but was further trying to cause damages to the property of the shop owned by Sunil. Faced with such danger if Sunil reacted and caused injury as above, the same cannot be said to be the act of exceeding right of self defence. He has given only one blow and did not take undue advantage of the position of injured nor he has acted in a cruel manner and, therefore; he would be entitled to the benefit as provided Under Section 100 of Indian Penal Code. Reference may be had to a case reported in AIR 1971 SC 1208, Dominic Varkey v. The State of Kerala.
24. Learned counsel for State has referred to a case reported in 1996 SCC (Cri) 751, State of U. P. v. Zalim and submitted that here in this case accused has exceeded right of self defence.
25. We do not agree with this contention of the learned counsel for State as in that case during the Panchayat of the village deceased took out a shoe and dishonoured certain Panchas present there in the Panchayat. He was thereafter dragged out of the Panchayat and taken to road and then stabbed to death. It was in this background that the Apex Court of the country held that the accused persons in that case exceeded right of self defence.
Here in this case accused had come "second time" to the shop of Sunil. He did hurl filthy abuses second time, and pelted stones which had caused fear in the minds of the persons present in the shop who were scared and left the shop. He again tried to pick-up stone from in front of the shop of Sunil. In such a situation Sunil had a right to react and his apprehension of sustaining grievous injury at the hands of Gangaram was reasonable. It is noteworthy that the person apprehending danger is not required to wait for sustaining injury. Sustaining of injury is not necessary; mere reasonable apprehension would be sufficient for exercise of right of self-defence.
26. In view of above, in our considered opinion accused Sunil is entitled to right of self-defence and he was justified in causing a single blow to Gangaram and he is entitled to the benefit of the same.
27. As a result appeal succeeds. Accused is acquitted of the offence punishable Under Section 302 of Indian Penal Code. He is on bail. His bail-bonds are discharged.