Ralu vs The State Of M.P. on 11 May, 2020

[Cites 19, Cited by 5]

Madhya Pradesh High Court

Ralu vs The State Of M.P. on 11 May, 2020

1. The appellant has preferred this appeal against judgement and order dated 27.05.2000 delivered in Session Trial No. 214/1999 by Additional Session Judge, Manavar, District Dhar, whereby the learned appellate Court has convicted him under section 304 part II of IPC and has awarded seven year rigorous imprisonment.

2. The prosecution case in brief is that on 14 th May 1999 at about 4:30-5 in the evening deceased Mahesh and appellant Raloo clashed with each other. During the scuffle, Raloo picked up a stone and threw it towards Mahesh, which hit him on the head and he fell on the ground. He was taken to the hospital, but was declared brought dead.

3. Dr KC Rane PW-14 intimated the death to the concerned Police Station Manawar (Ex. P/16). The police registered Merg No. 32/99 (Ex.P//15) and inquired the same. The police registered crime No. 205/99 under section CRA No.957/2000 2 302IPC (Ex.P/17) and investigated the same. The police called the witnesses vide notice Ex.P/7, prepared Punchnama lash Ex.P/8 in their presence, visited the spot, prepared spot map Ex.P/9, seized blood smudged and plain soil and a stone allegedly thrown by the appellant from the place of incident vide Ex.P/10, sent the dead body for post mortem with requisition Ex.P/18 and received post mortem report Ex.P/12, arrested the accused vide arrest memo Ex.P/14, recorded statements of Chhotelal (PW-3), Omkara Lal (PW-4) and Sumanbhai (PW-5) under section 161 CRPC, who supported the allegation, sent the articles (stone, soil, blood stained clothes) seized from the spot and received from the hospital to the FSL vide letter Ex.P/11 and after completing the investigation, filed the charge- sheet.

4. The learned trial Court framed the charge against the appellant under section 302 IPC. He abjured guilt and prayed for trial. After the trial, he was held guilty under section 304 part II IPC instead of the offence under Section 302 IPC and has been awarded seven years rigorous imprisonment.

5. The appellant has preferred this appeal on the grounds that the judgement and order of the learned trial Court is contrary to the law and facts on record. The learned trial Court has not appreciated the evidence of the prosecution properly. It has committed gross error in not appreciating contradictions and omissions appeared in the statement of the witnesses, which goes to the roots of the prosecution case. It has ignored the ocular evidence that does not support the medical evidence and the fact that looking to the injury found on the head of the diseased, no offence under section 304 part II of the IPC was made out. The learned trial Judge should have appreciated the fact appeared in the prosecution evidence itself that both the deceased and the appellant were quarrelling with each other. The deceased was the aggressor and he was the one who started pelting stones. The appellant had thrown the stone in exercise of his right of private defence, which unfortunately hit the head of the deceased. The CRA No.957/2000 3 evidence produced by the prosecution before the trial Court shows that the incident took place in a spur of moment and also shows complete lack of motive, intention or preparation. Therefore, the appellant cannot be convicted for any offence or more particularly for the offence punishable under section304 part II IPC. It is further pleaded that in the facts and circumstances of the case, the learned trial Court has awarded excess punishment. Therefore, it is prayed, that the impugned judgement and order passed by the learned trial Court be set aside and the appellant be acquitted. Alternately, it is urged that the sentence of the appellant be reduced to the period already undergone.

6. The appellant has not challenged the death of the deceased at the time and place of the incident and the fact that the death was due to head injury sustained by the deceased. After discussing the prosecution evidence, particularly the statement of Dr. Rane PW-10, in para 7 of the impugned judgement, the learned trial has Court concluded that the death of the deceases was homicidal in nature. This conclusion or nature of death is not challenged by the appellant before this Court. Therefore, there is no need to discuss the evidence produced by the prosecution in this regard in detail to arrive at the same conclusion as of the trial Court.

7. Before this Court, the appellant has primarily pressed the plea of self defence. It is argued that the learned trial Judge has not appreciated the fact appeared in the prosecution evidence that both the deceased and the appellant were quarrelling and the deceased was the aggressor and pelted a stone first. The appellant then threw the stone in self defence without targeting any particular body part. The evidence produced by the prosecution before the trial Court shows that the incident took place in the spur of a moment and it further shows complete lack of motive, intention or preparation. Therefore, the appellant cannot be convicted for any offence or for the offence punishable under section304 part II IPC.

CRA No.957/2000 4

8. The prosecution has opposed the plea taken by the accused. It is argued that no such plea was taken before the trial Court and is being raised first time in appeal before this Court. Therefore, at this stage the same cannot be considered. It is further pleaded that no evidence was produced by the appellant before the trial Court to establish the plea of self defence and hence only on the basis of the arguement advanced by the learned counsel for the appellant; it cannot be held that the appellant has discharged the burden of proving or establishing his defence. Further, the learned Public Prosecutor has pointed out Exception 2 of Section 300 IPC, which stipulates that even if the death is caused without premeditation, and without any intention of doing more harm than is necessary for the purpose of self defence, it amounts to culpable homicide, if the person exceeds the power given to him by law. It is asserted that in the present case, there is no evidence to show that the appellant had reasonable apprehension that if not retaliated, the deceased may kill him or may cause grievous hurt to him. Therefore, either no Right of private defence was available to the appellant or he had exceeded that right. In both the cases, his conviction is proper and there is no scope for this Court to interfere with. Looking at the facts and circumstances, his sentence also cannot be considered severe or disproportionate to the offence found proved against him. Therefore, dismissal of the appeal is prayed for.

9. The law is well settled that the plea of self defence can be taken first time in appeal and that such plea can be established or proved by the prosecution evidence. Though burden to establish such plea lies on the accused, but it is not so heavy as the burden lies on the prosecution to establish its case beyond reasonable doubt. To examine such plea, the evidence needs not to weigh in golden scale.

10. In Para 11 of judgement passed by High Court of Judicature At Allahabad in Mangal Khan and Ors. V. State (Criminal Appeal No. 1029 of 1958 judgement dated 13-11-1959) it was held that CRA No.957/2000 5

11. ..... It is not necessary for the accused to produce witnesses in defence for making out and case of private defence. It is possible for the defence to make out a case of private defence from circumstances of the case.

11. The Rajasthan High Court (Principal Seat at JODHPUR) has taken similar view in Gangada v. The State of Rajasthan 1975 CRI. L. J. 1445. Relevant part of para 4 of this judgement reads as under:

4. I have given my anxious consideration to the rival contentions.

At the outset I may observe that if the accused has a right of private defence, he can raise the plea for the first time in the trial court or in the appeal. He is not precluded from taking such plea at the trial, merely because he omitted to set it out in the committing court. He can certainly show from the prosecution evidence and other material on the record that he acted in the exercise of his right of private defence of person or property. .....

12. Hon'ble the Supreme Court has made it clear in Satya Narain Yadav Vs. Gajanand AIR 2008 SC 3284 and Arjun Vs. State of Mahrashtra AIR 2012 SC 2181 the accused need not to raise specific plea of Right of private defence. The Court can consider its availability even in absence of plea by the accused. It is for him (accused) to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the prosecution witnesses.

13. Hon'ble the Supreme Court has held in Munshi Ram and others Appellants v. Delhi Administration AIR 1968 SC 702:

5. It is true that the appellants in their statement under Section 342, Cr. P C had not taken the plea of private defence, but necessary basis for that plea had been laid in the cross-

examination of the prosecution; witnesses as well as by adducing defence evidence. It is well settled that even if an accused does not plead self-defence, it is open to the court to consider such a plea if the same arises from the material on record -see In re, Jogali Bhaigo Naiks, AIR 1927 Mad 97. The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probability in favour of that plea on the basis of the material on record.

CRA No.957/2000 6

14. The same view is reiterated in State of Rajasthan v. Manoj Kumar and State of Rajasthan v. Raju alias Raj Kumar and Anr. AIR 2014 SC (Supp) 1680 and has held that the plea of right of private defence arises from material on record. Such plea cannot be discarded merely on ground that it was not taken by the accused persons in their statement under S. 313, Cr. P.C. In Surendra Vs. State of Maharashtra AIR 2006 SC 3063 and V. Subramani v. State of Tamil Nadu AIR 2005 SC 1983 also it was held that plea of private defence is need not be specifically raised. Even if not taken by the accused, the Courts can consider as to whether plea of exercise of private defence was probable in facts and circumstances of case.

15. It was held in Shajahan and Ors v. State of Kerala and Anr AIR 2007 SC (Supp) 186 that in case of Right of private defence, burden of proof lies on the accused, but It stands discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record.

16. It is constant view of the Supreme Court that the accused need not to produce evidence to establish the Right of private defence beyond reasonable doubt. It is held in Arjun Vs. State of Mahrashtra AIR 2012 SC 2181 that degree of proof to establish Right of private defence is not beyond reasonable doubt but a mere preponderance of probabilities.

17. Similar view has been taken in Sikandar Singh and Ors v. State of Bihar AIR 2010 SC 3580. Para 25 of this judgement is as under:

25. It is well settled that the burden of establishing the plea of self-defence is on the accused but it is not as onerous as the one that lies on the prosecution. While the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea of self-defence to the hilt and may discharge the onus by showing preponderance of probabilities in favour of that plea on the basis of the material on record. In Vidhya Singh v.

State of Madhya Pradesh (1971 (3) SCC 244 : (AIR 1971 SC 1857), this Court had observed that right of self-defence should not be construed narrowly because it is a very valuable right and has a CRA No.957/2000 7 social purpose. (Also see: Munshi Ram and Ors. v. Delhi Administration (AIR 1968 SC 702); The State of Gujarat v. Bai Fatima and Anr. (AIR 1975 SC 1478) and Salim Zia v. State of Uttar Pradesh (AIR 1979 SC 391).

18. In Ananta Deb Singha Mahapatra and Ors v. State of W.B. AIR 2007 SC 2524 and Krishna and Anr v. State of U.P AIR 2007 SC 2452 also it was held that burden of proof of Right of private defence lies on the accused but this burden is not that onerous as that on prosecution.

19. In the present case Suman bai PW-5 has stated in her examination-in-chief that both the deceased and the appellant were quarrelling with each other. She tried to exhort them, but the deceased didn't pay heed to her. He threw a stone toward the appellant and in retaliation; the appellant also pelted a stone towards the deceased and ran away. The stone thrown by the appellant hit the head of the deceased; he fell down and later died. This witness is not declared hostile. There is no reason to disbelieve this witness. If a stone thrown towards someone during the scuffle, a person of common prudence may have reasonable apprehension of sustaining hurt, therefore, certainly Right of private defence exist in his favour.

20. Now the question remains to consider is as to whether the appellant had exceeded this right. In the present case, at the time of the incident, the deceased was 18 year old and the appellant was 22 year old. There is no evidence of any previous enmity between both of them. There is also no evidence of "motive", "preparation", "premeditation" or "intention" of causing death or more harm than necessary for the purpose of defending himself. It was a sudden fight in the heat of passion upon a sudden quarrel and without taking any undue advantage or acting in any cruel or unusual manner, as a natural reflex, the appellant also picked a stone lying there and threw it towards the deceased. His action was a reflex action to save himself from the attack by the deceased. It was not the case of the prosecution itself that the accused targeted any particular body part or CRA No.957/2000 8 more precisely the head of the deceased and evidence also does not show any such intention of the appellant. There is no evidence to show the weight, size or shape of the stone used by the appellant to assess the intention or impact of blow to arrive at a conclusion favourable to the prosecution. There is also no evidence to show that the stone was unusual in size or shape or whether it was sufficient to cause death in the normal course. The injury found on the head of the deceased cannot be said that it was of an unusually severe nature or that it was intended to be so.

21. In the wake of the evidence available on the record, if recreated, the incident emanates from the evidence appears to be like that two young boys scuffled on some account and in the spur of moment, one of them picked up a stone and threw it towards the other. In retaliation, the other also picked up a stone and threw it back. Coincidentally, the stone thrown by the first person missed but the stone thrown by the other hit the head of the first person, who died. This entire scene, in absence of motive, intention, preparation or premeditation, does not reflect that the appellant used more power than required to defend himself or exceeded his Right of private defence.

22. The Hon'ble Supreme Court held in Subramani and others Appellants v.

State of T.N. AIR 2002 SC 2980 that the force used by a person in peril not to be weighed in golden scales. While it is true that in exercise of the Right of private defence only such force may be used as may be necessary. But it is equally well settled that at a time when a person is faced with imminent peril of life and limb of himself or other, he is not expected to weigh in golden scales the precise force needed to repeal the danger. Even if he, in the heat of the moment carries his defence a little further than what would be necessary, when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it.

23. Reversing the judgement of the Madras High Court in the case of Krishnan v. State of T.N. 2006 AIR SCW 4185 Hon'ble Apex Court acquitted the CRA No.957/2000 9 accused considering that the evidence of eye-witnesses showing that the accused acted in exercise of right of private defence. The Court considered that there was a quarrel between the parties. The accused was neither armed with any weapon when he came to the spot nor he brought anything from his house after the quarrel started. His action in hitting the deceased on his head by taking a stick lying on ground was a reflex action to save himself from the attack by the deceased and his son. Evidence probablising defence version that deceased and his son had hit the accused with sticks on his head and blows landed on his elbows when he raised his hands to protect his head, and that at that stage, the accused picked up one of thorny sticks which were lying at spot and hit the deceased, to protect himself and not with the intention of killing him. In such circumstances the Apex Court acquitted the accused.

24. In a case where the deceased, who was the aggressor, came to the scene of occurrence with a stick and caused injuries to the accused, who in his turn hit back the assailant and caused injuries on the head, which ultimately resulted in his death, a Division Bench of the Patna High Court (Harries, c.j. and varma, J.) in Mohamed Habib v. Emperor AIR 1940 PATNA 595 held that it could not be said that the accused had exceeded the right of private defence, if at the time he inflicted the injuries, he did not realize that they were of a very serious nature.

25. Similar circumstances exist in the present case. As stated above the two young men quarrelled suddenly and threw stones at each other. The stone pelted by the deceased missed; while the stone pelted by the appellant accidentally hit the head of the deceased. The deceased being the aggressor, the accused unintentionally assaulted him to defend himself. He threw a single stone. Weight, shape or size of which is not clear from the record. Neither the appellant acted in cruel manner nor had he taken any undue advantage of the situation. He simply ran away from the scene. It does not appear that the appellant had exceeded his Right of private CRA No.957/2000 10 defence. Therefore, he is entitled to acquittal as no action can be considered as offence, if it is done in exercise of right of private defence.

26. In view of the forgoing discussion, in totality of the consideration of all relevant facts and circumstances, in my considered opinion, the evidence produced by the prosecution shows that in the case in hand, the Right of private defence exist in favour of the appellant and there is nothing on record to show that he exceeded this right in any manner. Though the death of the deceased was unfortunate, but the appellant cannot be held guilty for causing the same neither under Section 302 nor under Section 304 part II of the IPC. The contrary view taken by the court below is against the weight of the evidence on record and the exposition of law.

27. In view of the aforesaid, there is no need to discuss other ground taken by the appellant.

28. Ex-consequenti, the appeal is allowed, the order passed by the learned trial Court is set aside. The appellant is acquitted from the charge under Section 304 Part II of the IPC. His bail bond stand discharged.

29. The order of the trial Court with regard to the disposal of the case property is hereby confirmed.


                                                 (Virender Singh)
                                                        Judge
soumya



      Soumy
               Digitally signed by
               Soumya Ranjan Dalai
               DN: c=IN, o=High Court
               of Madhya Pradesh Bench

      a        Indore,
               postalCode=452001,
               st=Madhya Pradesh,


      Ranjan
               2.5.4.20=f4d2118683e843
               22bb5797cf28ee6067153
               8b737cf52962d84d7b527
               897e53ac, cn=Soumya

      Dalai    Ranjan Dalai
               Date: 2020.05.11 17:06:21
               +05'30'

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