Rajasthan High Court - Jaipur
Kesra And Anr. vs State Of Rajasthan And Vice Versa on 2 April, 1987
Equivalent citations: 1987(2)WLN297
JUDGMENT Shyam Sunder Byas, J.
1. Since both the appeals are directed against one and the same judgment of the learned Addl. Sessions Judge, Hanuman Garh they were heard together and are disposed of by a single judgment. By the impugned judgment, accused Kesra and Manaram were convicted under Section 304 Part-II, I.P.C. and each was sentenced to 18 months' rigorous imprisonment with a fine of Rs. 100/-, in default of the payment of fine to further undergo two months' like imprisonment. By the same judgment, they were acquitted of the offence under Section 302, I.P.C. The accused have come-up in appeal and challenge their conviction. The State has taken the appeal against the acquittal.
2. PW 4 Motaram Jat of village Lalgarh district Ganganagar appeared before the Deputy Superintendent of Police, Hanumangarh on February 16, 1974 and presented written report Ex. P 5. The Deputy Superintendent of Police directed the Station House Officer, P.S. Suratgarh to treat Ex. 5 as the First Information Report, register the case and make investigation. Ex. P 5 was presented at police station, Suratgarh at about 10.45 a.m. on February 17,1974 It was stated there in that the appellants and three more persons Nanu, Sugna and the wife of Aadu had committed the murder of Jeewan Jat R/o village Hitesar. The incident was seen by Motaram PW 4, Birbal PW 5, Bheraram PW 2 and Bhagirath PW 3. The police registered the case and the investigation was taken up.
3. At about 12.30 hours on February 15, 1974, one Nanuram Jat of Lalgarh appeared at Police Station, Suratgarh and verbally lodged report Ex. P 6-A against Bhera PW 2, Bhagirath PW 3 and Jeewan that these three persons had come to the Dhani of Aaduram Jat armed with guns. They fired shots and thereby killed Aaduram. Bhera and Bhagirath managed to run away, but Jeewan was over-powered. He was beaten by the SONS of Aaduram. Jeewan did not survive and passed away. Criminal Case No. 17 of 1974 was registered under Section 302, 1PC. on the basis of the FIR Ex. P 6 A, against Bhera, Bhagirath and Jeewan. The Station House Officer Magan Singh arrived on the spot on February 15, 1974, inspected the site and found the dead bodies of Aaduram and Jeewan lying in the Dhani of Aaduram. He prepared the inquests of the two dead bodies. When he inspected the site two 12-bore guns, many live cartridges, one fired-cartridge one blanket, one turban and many suck articles were found lying scattered there. They were all seized and sealed. The post-mortem examinations of the dead bodies of Aaduram and Jeewan were conducted on the same day by PW 1 Dr. Shiv Bhagwan.the then Medical Officer Incharge, Government Dispensary, Surat-garh The doctor noticed the following ante-mortem injuries on the dead body of Jeewan:
(1) Lacerated wound 2"x2" x bone depth blunt on left occipital region; (2) Incised wound 3"x1"x bone depth-sharp, on left parietal region;
(3) Lacerated wound 3" x 1" x bone depth-blunt, left parietal region;
(4) Lacerated wound 2" x 1" x 1/4" blunt frontal region right side;
(5) Incised wound 1" x 1" x bone depth-sharp, right side of occipital region; (6) Lacerated wound 1" x 1/2" x 1/2" blunt, right eye brow;
(7) Lacerated wound 2" x 1/2" x bone depth, blunt right parietal region; (8) Lacerated wound 1" x 1/4" x 1/4"-blunt, left side of frontal region; (9) Lacerated wound 1" x 1/2"-blunt, right mastod region;
(10) Defuse swelling 3" x 2"-blunt. right forear.
4. The doctor was of the opinion that cause of death of Jeewan was shock produced by haemorrhage due to multiple scalp injuries. The postmortem report prepared by him is Ex. PW 1. The appellants were arrested. On the completion of investigation, the police submitted a challan against the appellants in the Court of Munsif and Judicial Magistrate, Suratgarh, who, in his turn, committed the case for trial to the Court of Sessions. The case came for trial before the learned Additional Sessions Judge, Hanumangarh. He framed charges under Section 302 and in alternative under Section 302/34, I.P.C. against them, to which they pleaded not guilty and faced the trial. The defence taken by the appellants was that PW 2 Bhera, PW 3 Bhagirath and the deceased Jeewan came to their Dhani in the morning on February 15, 1974. Bhagirath had lathi while Jeewan and Bhera had guns. Bhera fired the shot which hit their father Aaduram. Aaduram succumbed to the injuries then and there. Jeewan also fired his gun which could not hit any body. Thereafter Bhera, Bhagirath and Jeewan starred Seating them (the appellants). In order to save themselves from being killed, they also took-up lathies and struck blows to Jeewan. Bhera and Bhagirath managed to flee away. Jeewan fell down and passed away after some minutes. The right of private defence of person was thus, put forward by the appellants. In support of its case, the prosecution examined seven witnesses and filed some documents. In defence, the accused adduced no evidence. During trial PW 2 Bhera and PW Bhagirath turned hostile and lent no support to the prosecution. PW 4 Motaram and PW 5 Birblal were taken as falsely planted witnesses, who though had not seen the incident, asserted themselves to be the ocular witnesses. The learned Sessions Judge disbelieved them completely. However, taking into consideration the statements of the accused persons recorded under Section 313 Cr. P.C. the learned Sessions Judge concluded that though the appellants had a right of private defence, they had exceeded it. The appellants were consequently convicted and sentenced as mentioned at the very out-set. The contention of the State is that the appellants were wrongly acquitted of the offence under Section 302, I.P.C.
5. We have heard the learned Counsel for the applicants and the learned Public Prosecutor. We have also gone through the case file carefully.
6. PW 2 Bhera and PW 3 Bhagirath are the persons against whom a case was registered under Section 302, I.P.C. for causing the death of the appellants' father Aaduram in this very incident. We are told that they were convicted for causing Aaduram's murder. Both these witnesses lent no support to the prosecution and turned hostile for the apparent reason that they were facing trial for causing the murder of the appellants' father Aadu Ram. The evidence of these two witnesses Bhera (PW 2) and Bhagirath (PW 3) is of no help to the prosecution.
7. The First Information Report in the case was lodged by PW 4 Motaram. PW 4 Motaram and PW 5 Birbal alleged that they had seen the incident. The learned Sessions Judge, on a detailed and critical analysis of what they testified, arrived at the conclusion that their claim to have seen the incident is false and unfounded. Both of them have falsely introduced themselves as the ocular witnesses of the incident. The FIR was lodged by PW 4 Motaram after a long delay. Looking to their deep-rooted enmity with Aaduram, they could not be expected to go to Aaduram's Dhani when the incident took place. Taking into consideration these factors and the various discrepancies and contradictions inter se between the statement of these two witnesses, the learned Sessions judge found them completely unreliable. The learned Public Prosecutor could not point Out any flaw or infirmity in the approach of the trial Court. We have also gone through the statements of these two witnesses and are of the opinion that the criticism levelled against them by the trial Court is justified. The conclusion of the Sessions Judge that these two persons have falsely planted themselves as ocular witnesses of the incident, is quite justified and calls for no interference. Thus, there is no evidence in the prosecution side to show that the appellants had committed the murder of Jeewan.
8. The Sessions Judge, however, took the statement recorded under Section 313, Cr. P.C. into consideration and on the basis of what they stated, held that though they had a right of private defence to protect themselves, they had exceeded it. It was argued by the learned Counsel for the appellants that the approach of the Sessions Judge is clearly erroneous and unsustainable The statements of appellants recorded under Section 313, Cr. P.C. should have been read as a whole. It was not open to the Sessions Judge to dissect it and treat the inculpatory portion as evidence against them. Reliance in support of the contention was placed on Vijendrajit Ayodhya Pralad Goel v. State of Bombay . It was further argued that the Court below was in error in granting only qualified right of private defence to the appellants. Their father was killed by Jeewan and his companions Bhera and Bhagirath. The appellants were assaulted and shots were fired at them. In these circumstances, they had a complete right of private defence to cause any harm to the aggressors. Reliance in support of the contention was placed on Pooran Singh and Ors. v. State of Punjab . It was, on the other hand, contended by the learned Public Prosecutor that the accused had inflicted more harm than was necessary in the circumstances in which the incident had taken place. They, therefore, exceeded the right of private defence. We have taken the respective submissions into consideration.
9. We may point out at-once that the statement of an accused recorded under Section 313, Criminal Procedure Code cannot be treated and regarded as evidence. The answers given by the accused in his statement under Section 313, Cr. P.C. may, of course, be taken into consideration. The learned Sessions Judge relied upon Chacko Mathai v. State of Kerala in taking the view that the statement of an accused, recorded under Section 313 Cr. P.C. amounts to evidence against him. The approach of the Sessions Judge was obviously erroneous. In the aforesaid case, no where an opinion has been expressed that the statement of the accused recorded under Section 313, Cr. P.C. can be treated and regarded as evidence. The learned Judges of the Kerala High Court clearly expressed the view that the statement of the accused in his examination under Section 342(old Cr. P.C.) should be taken into consideration in its entirety. They never expressed the view that the statement of an accused can be treated and regarded as evidence. Recently, in Appu Kutton v. State of Kerala 1986 Crimes 667, a view has been clearly expressed that the statement of an accused recorded under Section 313, Cr. P.C. cannot be used as substantive evidence.
10. The position, thus, comes down to this that the statement of an accused recorded under Section 313, Cr. P.C. is not evidence. This statement under Section 313, Cr. P.C. cannot be regarded and used as substantial evidence against the accused. Of course, the answers given by him to the questions put to him in his examination may be taken into consideration.
11. The question, which now remains for deliberation is whether the appellants could be convicted on the basis of the answer given by them in their statements under Section 313, Cr. P.C.? In the instant case, in their statement recorded under Section 313, Cr. P.C. both the appellants stated that in the morning on the day of the incident, when they were in their Dhani, PW 2 Bheraram and PW 3 Bhagirath along with the deceased Jeewan came there. Bheraram and Jeewan had guns while Bhagirath had a Lathi. Bheraram (PW 2) fired a shot at their father Aaduram Aaduram fell down and passed away instantaneously on the spot. The deceased Jeewan fired a shot at them, but it could hit none. Apprehending danger to their lives, they took up the Lathis and started wielding and swirling them. Bhagirath and Bheraram fled away. As a result of wielding the Lathis, Jeewan sustained injuries. Jeewan thereafter, succumbed to the injuries on the spot.
12 A reading of their statements shows that they consist of two parts, one of which is exculpatory while the other is inculpatory. The learned Judge took both the parts of their statements into consideration and held that though they had a right of private defence of person, they exceeded it. We are unable to subscribe the view taken by the Court below. The statements of the accused under Section 313, Cr. P.C. is to be read and considered as a whole. Of course, the exculpatory portion can be excluded from consideration and the exculpatory part of the statement is inherently improbable or the exculpatory portion stands falsified by the prosecution. If there is no prosecution evidence to falsify the exculpatory portion or if the exculpatory portion does not appear inherently improbable, it would be an erroneous approach to ignore that exculpatory portion and to take the inculpatory portion alone into consideration. If the accused admits that he had committed the crime but puts forward justification for doing so, this justification (as is there in the instant case in our hand) cannot be excluded while taking his statement into consideration. The admission of committing the crime with justification does not amount to a plea of guilty and the accused cannot be convicted thereon.
13. In the instant case, the appellants have admitted the killing of Jeewan, but advanced the plea of justification based on the right Of private defence. We have already discussed above that the prosecution has led no evidence as to how Jeewan was done to death. In these circumstances, the plea of justification, raised by the appellants, will have to be accepted in its entirety.
14. There are over-whelming circumstances in support of the plea of justification advanced by the appellants. The incident had taken place in their Dhani. Their father Aaduram was shot dead by Bheraram, who was the companion of the deceased-victim Jeewan. The post-mortem examination report of the dead body of Aaduram is Ex. D 1, which shows that he was shot dead. The injury reports of the appellants are Ex D 2 & Ex. D 3. These three documents Ex. D 1. Ex. D 2 and-Ex. D 3 stand duly proved by the statement of Dr. Shiv Bhagwan (PW 1). When the site was inspected by the Investigating Officer and site inspection memo Ex. P 8 was prepared, two guns were found on the spot - one of which was fired by Bhera (PW 1) and the other was fired by the accused Jeewan. In the chamber of one of these guns, an empty cartridge case was also found on the spot. That shows that two shots were fired from these two guns - each from one. Many live cartridges were found on the spot. These guns and the cartridges were of the deceased Jeewan and Bheraram (PW 1) even according to the prosecution. All these circumstances unerringly point out that the deceased Jeewan and his companions were the aggressors. They went to the Dhani of the appellants, shot dead their father and attempted to kill them also. Placed in such a situation, the appellants were perfectly justified and were within their limits to wield and swirl Lathis to protect themselves. Striking of the blows with Lathis in such a situation to the aggressors is the natural act which every body placed in these circumstances would do. The appellants were within their limits to strike back apprehending danger to their lives, especially when their father was shot dead in their presence and shots were fired at them. They were entitled to cause any harm to the aggressors including their death.
15. Section 100 of the Penal Code lays down that the right of private defence extends to be voluntary causing the death of the aggressor if the aggressor makes an assault which may recently cause the apprehension that death will otherwise be the consequence of such assault. Section 99 I.P.C. of course lays down that the right of private defence, in no case, extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Whether more harm than the situation requires, has been caused or not, is a question of fact to be decided on the circumstances arising in a given case. The approach in deciding this question should be from the vision of a common man. The matter should not be judged with a vision of cool by stander. The whole plea of the accused and the surrounding circumstances should be taken into consideration to decide this crucial question. The circumstances in the instant case unerringly point out that the aggressor had shot dead the appellant's father and fired shots at them. It was only thereafter that the appellants mustered-up the courage, took the lathis and swirled them to ward-off the threat to their lives. They were perfectly justified in doing so and causing the death of Jeewan. Keeping these circumstances into consideration, in which Jeewan was done to death, it cannot be said that the appellants bad exceeded their right of private defence. They had an imminent and grave danger of being killed in case they had not the resort to arms. They had a complete right of private defence in using weapons and in killing Jeewan. The Court below was not justified in extending only a qualified right of private defence to the appellants. They are, therefore, entitled to acquittal.
16. In the result:
(1) the appeal of accused Kesra and Manaram is allowed. Their conviction and sentence under Section 304, Part II, I.P.C. are set-aside and the are acquitted there. They are already on bail and need not surrender. Their bail bonds shall stand cancelled; and (2) as a necessary corollary resulting from the acquittal of the appellants, the appeal of the State must fail and is hereby dismissed.
17. The appeals shall accordingly stand disposed of.