Gujarat High Court
Abhubhai Fatabhai vs State Of Gujarat on 5 November, 1998
Equivalent citations: (1999)3GLR2665
Author: A.M. Kapadia
Bench: A.M. Kapadia
JUDGMENT J.N. Bhatt, J.
1. Whether the appellant, original accused No. 1, is guilty of man-slaughter and if yes, whether he is liable to be punished under Section 302 or under Section 304 of the Indian Penal Code (I.P.C.), in the light of the appreciation of the prosecution evidence and the defence propounded in the further statement under Section 313 of the Criminal Procedure Code, 1973 (Cr.P.C.) and what should be the quantum of sentence if the guilt is established, are some of the important questions, which have surfaced in this appeal under Section 374(2) of the Cr.P.C. at the instance of the appellant-original accused No. 1 (henceforth accused), questioning the legality and validity of the conviction and sentence under Section 302 of the I.P.C. recorded by the learned Additional Sessions Judge, Banaskantha, at Palanpur on 31-3-1992 in Sessions Case No. 1 of 1991.
2. A conspectus of a few material facts giving rise to the appeal may be narrated, at the outset. The prosecution case has been that on 16-9-1990, at about 8.00 a.m. one Bhanji Ramji, father-in-law of prosecution witness 5 Hirji Manji had died, at village Ratda. Therefore, prosecution witness No. 5, the complainant Bhikha Bechar and some other persons had gone to village Godalwada. After attending the after-death ceremonies, they were returning home. Enroute, when they reached near a field before going back home, at about 12.00 noon, the deceased whose field is adjoining to the field of the accused found that some of the tree plantations had been removed and damaged. Therefore, deceased asked original accused No. 3, brother of accused Abhu, as to why the tree plantations in his field were damaged. In reply to that, original accused No. 3, Dhola, stated that the plants had been cut off by them. In the meantime, original accused No. 2, Laxman and original accused No. 3, Dhola, embraced the deceased from behind. Original accused No. 3, Dhola, who was armed with a small hatchet which means a scythe fixed to the end of long bamboo which is popularly known and colloquially identified as "vansi" aimed at the deceased in an attempt to assault him, which came to be warded off by P.W. 5, Hirji Manji, who is the father-in-law of accused Laxman, as a result of which, he sustained injuries on the thumb of his right hand.
3. Deceased Bhikha Ramji, Bhikha Bechar, Hirji Manji and other persons, then, went to their residence. It was decided by them to lodge a complaint about the incident. Thereafter, deceased and the complainant Bhikha Bechar and P.W. 5, Hirji Manji came to the outskirts of their village as they intended to go to the Police station for lodging the complaint. Original accused No. 2, Laxman and original accused No. 3 Dhula, also came there near the Neem tree, at the outskirts of the village around 12.30 p.m. on the say day. It is also the prosecution case that original accused No. 1, Abhu Fata, all of a sudden came with naked knife and landed a stab blow on the chest of deceased Bhikha Ramji which culminated into his death.
4. Upon the aforesaid facts propounded by the prosecution, the charge came to be framed at Ex. 5 in Sessions Case No. 1 of 1991 by the learned Addl. Sessions Judge on 7-1-1992. The incident occurred near the field at a public road leading from Godalwada to Hoda. The fields of original accused No. 3, Dhola, and deceased Bhikha Ramji are situated adjoining, at the outskirts of village Hoda. The main incident of manslaughter was preceded by an attempted assault by original accused No. 3, Dhula, on the deceased, Bhikha Ramji, which was saved by P.W. Hirji Manji by raising his hand and receiving the blow of vansi. In short, the accused persons came to be charged for committing offence punishable under Section 302 read with Section 34 or in the alternative under Section 114 of the I.P.C. Original accused No. 2 & 3 were also charged under Section 324 and 504 of I.P.C. Original accused No. 1, appellant before us, a convict under Section 302 was also individually charged for having committed offence of murder under Section 302 of I.P.C. Accused Nos. 1 and 3 were also charged under Section 135 of the Bombay Police Act.
5. The defence of the accused was of total denial. However, accused persons tendered their respective written statements raising specific plea of defence at the end of the trial. The pith and substance of the defence emerged from the written statement of original accused No. 1, produced at Ex. 55, has been that there was bona fide exercise of right of private defence when accused No. 1 Abhu, upon coming to the venue of offence found his brother Laxman, original accused No. 2 being caught hold of by prosecution witness No. 4, Bhikha Bechar, and deceased Bhikha Ramji strangulating him, inflicted one knife blow to save the life of his brother Laxman. On the similar line, accused Nos. 2 and 3 also submitted their written statements. Since they have been acquitted by the Trial Court and when no acquittal appeal has been filed, we do not deem it expedient and necessary to refer to their defence in extenso. Therefore, original accused Nos. 1, 2 and 3, who are real brothers, were tried in the aforesaid Sessions case which culminated into the acquittal of original accused Nos. 2 and 3 and into conviction of original accused No. 1, Abhu Fata, at whose instance this conviction appeal is filed.
6. In Order to substantiate the charges against the accused persons, the prosecution placed reliance on 14 prosecution witnesses. Reliance was also placed on the forensic science laboratory report at Exhs. 51 and 52 and the medical certificates and PM notes. Accused persons did not lead any oral evidence, but after their examination, under Section 313 of the Cr.P.C, raised specific plea of private defence by giving Exhs. 55, 56 and 57, respectively, of all the three accused persons.
7. The trial Court, upon evaluation and appreciation of the testimonial collection and the documentary evidence relied on by the prosecution and also the defence raised by the accused persons, acquitted original accused No. 2, Laxman, and original accused No. 3, Dhula, from all charges against them, whereas, holding original accused No. 1 Abhu Fata, appellant in this appeal, guilty for the offence punishable under Section 302 of the I.P.C. and sentencing him to undergo rigorous imprisonment for life by the judgment dated 31-3-1992 in the aforesaid Sessions case which is questioned by the original accused No. 1, who, for the sake of convenience and brevity shall be referred to hereinafter as 'the accused'.
8. Learned Counsel Mr. Shethna while appearing for the appellant-accused Abhu has raised the following contentions:
1. That the prosecution has not been able to prove the culpability of the appellant-accused, Abhu Fata, under Section 302 of the I.P.C. beyond reasonable doubt.
2. In the alternative, the appellant-accused cannot be held guilty for any offence as the alleged act was done in exercise of right of private defence to save the life of his brother Laxman who was being strangulated.
3. That the prosecution case is totally vulnerable on the ground of absence of the origin of occurrence and also the suppression of genesis of the case.
4. In the alternative, it is submitted that the accused, Abhu Fata, cannot be held guilty under Section 302 of I.P.C. in view of Exception 4 to Section 300.
5. Alternatively, it is contended that if the right of private defence is exceeded, the accused could be held guilty for the offence punishable under Section 304 Part I.
6. That the defence plea raised in the written statement at Ex. 55 of the accused at the end of trial under Section 313 of the Cr.P.C. cannot be dissected and has to be accepted or rejected as a whole. He has also criticised the evidence of eye-witnesses.
The contentions raised on behalf of the appellant-accused are countenanced by the learned Additional Public Prosecutor, Mrs. Yagnik. She has fully supported the impugned judgment and Order convicting the accused under Section 302 and the resultant rigorous imprisonment for life. She has also contended that the evidence of the eye-witnesses is quite natural, dependable and sufficient to transfix the criminality of the appellant accused under Section 302 of the I.P.C.
9. We have been taken through, extensively and exhaustively, the entire testimonial collection as also the documentary evidence in course of the marathon submissions made before us for almost more than two days. We have also carefully examined the case law relied on by both the sides to which reference will be made by us hereinafter as and when required, at an appropriate stage.
10. The contentions advanced on behalf of the accused and the submissions raised on behalf of the respondent State enumerated hereinbefore by us are being discussed pari passu so as to avoid repetition of the narration of the evidence.
11. It has, clearly, emerged from the record of the present case that there are five eye-witnesses who have supported the prosecution case. It may be stated, at this stage, that the homicidal death of deceased Bhikha Ramji on the day of incident is, rightly, not questioned. What is questioned is the authorship of the alleged crime. The alternative contention is the justification of commission of the crime in question. Nonetheless, the prosecution has clearly established by leading evidence of P.W. 1, Dr. J.M. Jadeja, Ex. 12, that deceased Bhikha Ramji died a homicidal death. PM notes prepared by Dr. Jadeja after conducting autopsy at Civil Hospital, Palanpur, where the deceased was brought, has clearly testified that there was a puncture wound in the right side portion of the chest of 3 x 1 cm. He had conducted the post mortem examination at about 4.15 p.m. on the same day of incident, like that, 16-9-1990. The stab wound which took the toll of the deceased had resulted into a puncture of the right side lung and it was sufficient in ordinary course of nature to cause death. It is also very clear from the testimony of Dr. Jadeja that the cause of death was due to shock and haemorrhage due to the aforesaid injury. It is, therefore, very clear that the deceased Bhikha Ramji, had suffered a homicidal death.
12. The question, therefore, now would arise as to who was the author of the crime in question which had resulted into the homicidal death of deceased Bhikha Ramji. The prosecution witness No. 4, Bhikha Bechar, is an eye-witness who is examined, at Ex. 19. It is clearly testified by him that on the day of the incident at about 12.30 noon, accused, Abhu Fata, came running with a knife and inflicted a blow on the right side portion of chest of deceased Bhikha Ramji. After giving blow, accused Abhu snatched the knife from the body of the deceased and fled away with the knife. He is also a neighbour having adjoining field. He has also supported the prosecution case with regard to the first part of the incident which preceded the main incident almost half-an-hour before the main incident. His evidence has remained, totally, unshaken insofar as the main theme and core of the prosecution case about the culpability of the accused, Abhu, is concerned. His evidence is, significantly, reinforced by the evidence of eye-witness P.W. 5, Hirji Manji, Ex. 22, who is an injured witness. P.W. 5, Hirji Manji is the father-in-law of original accused No. 2, Laxman, who sustained injury on the right hand thumb while warding off and saving a blow of vansi being inflicted on the person of deceased Bhikha Ramji in the first incident around 12.00 noon. The vansi blow was aimed by original accused No. 3, Dhola, on being questioned by the deceased about the destruction of the plantation in his field. The injury sustained by this witness on account of infliction of vansi blow by original accused No. 3, Dhola, is also established by the medical evidence of Dr. Bapna and the medical certificates produced at Ex. 46. The evidence of this eye-witness who was returning home along with deceased and Bhikha Bechar from village Ratda has also remained unshaken and dependable on the main story of the prosecution. He fully supported the evidence of eye-witness Bhikha Bechar. It is clearly testified by him in his evidence, at Ex. 22 that the appellant-accused had stabbed the deceased on the right side portion of chest coming all of a sudden with a knife. There is no reason to discard his evidence. In fact, he had sustained injuries in an attempt to save the life of the deceased, Bhikha Ramji, in the first part of the incident when vansi blow was aimed at by original accused No. 3, Dhula. It is clearly established from the evidence on record that he had sustained an incise wound on the thumb of the left hand which was 3 x 0.5 cm. which was possible by the infliction of blow of vansi. Therefore, he is an injured eye-witness whose presence at the spot at the relevant time was quite natural. The prosecution case is also fully reinforced by the eye-witness, P.W. 6, Mohan Chela, Ex. 23 who was running a stall of miscellaneous items like pan-beedi, 20 feet away from the venue of offence. He is an independent eye witness and there is no reason to ignore his evidence. His presence at the spot of incident was quite reasonable and natural. He has clearly deposed that four persons including the deceased, Bhikha Ramji, who was sitting on ota near neem tree which is hardly 20 ft. from his shop, were talking to go to the Police Station for lodging the complaint. At that time, at about 12.30 noon, accused, Abhu Fata, emerged with a naked knife and inflicted a blow on the right side portion of the deceased which has resulted into his death. Any criticism against his evidence is of no avail in view of our thorough examination of the testimony. So is the case of eye-witness, P.W. 7, Amrut Chhagan, whose evidence is also quite natural. He is the uncle of P.W. 5, Mohan Chela. He is an independent witness whose presence was natural near the venue of offence. He was feeding fodder to his camel at the relevant time. Hardly from a distance of 30 feet, he had witnessed the incident. According to this witness, accused Abhu came running and inflicted a knife blow on the right side chest portion of the deceased. Nothing has been, successfully, pointed out which would affect his evidence. His evidence, fully, corroborates the evidence of the complainant and the injured eye-witness.
13. The evidence of P.W. 8, Bechar Hirji, is at Ex. 25. He is the son of the injured witness P.W. 5, Hirji Manji. He has also, clearly, testified that accused Abhu inflicted knife blow on the person of the deceased as he had come to the venue of offence on hearing the shouts. His evidence inspires the confidence of the Court and the trial Court has, rightly, placed reliance on his evidence.
14. The defence of the accused disclosed in the written statement, at Ex. 55, is that the accused, Abhu, inflicted knife blow on the person of the deceased in exercise of the right of private defence of his brother Laxman, who was being strangulated by deceased Bhikha Ramji while he was caught hold and held by prosecution witness Bhikha Bechar. Written statement, Ex. 55, is submitted on 13-3-1992 after the completion of the evidence of the prosecution on 13-3-1992 and further examination of the accused by the Trial Court in exercise of the provisions of Section 313 of the Cr.P.C. Whether such a statement of the accused can be dissected or can be split up or it can be divided into inculpatory and exculpatory nature of statement and whether part of it could be successfully employed against the accused and what is the effect, efficacy, significance and the character of a statement or an explanation rendered by the accused under Section 313 of the Cr.P.C. are some of the important questions which have been raised before us and are required to be examined in the light of the provisions of Section 313 of the Cr.P.C. and the relevant proposition of law propounded in the case law.
Section 313 of the Cr.P.C reads as under:
313. (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court-
(a) may at any stage, without previously warning the accused, put such questions to him as the Court considers necessary;
(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case;
Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under Clause (b).
(2) No oath shall be administered to the accused when he is examined under Sub-section (1).
(3) The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answers to them.
(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for any other offence which such answers may tend to show he has committed.
The twin objects of the provisions of Section 313 of Cr.P.C. are : (1) to afford an opportunity to the accused to explain the incriminating nature of evidence led by the prosecution against him and (2) to elicit the explanation of the accused of the incriminating material against him and answer the questions put to him by the Court without administering the oath.
15. After having examined the relevant and important case law pertaining to the interpretation and applicability of the provisions of Section 313 of Cr.P.C., we are prompted and tempted to articulate or highlight the following propositions which have emerged from the provisions of Section 313 of the Cr.P.C. and relevant case law.
1. The Court has discretion to examine the accused without oath at any point of time to elicit the explanation of the accused.
2. It is, however, obligatory and mandatory for the Court to put questions to the accused at the end of the trial under Section 313 of Cr.P.C.
3. The questions that shall be put to the accused by the Court shall not be in the form of or in the nature of cross-examination.
4. The explanations or answers tendered by the accused in response to the questions put by the Court under Section 313 of Cr.P.C. or in the form of written statement may be taken into consideration by the Court for appreciation of the merits of the case against him.
5. That the accused is given immunity from being prosecuted for tendering incorrect, untrue or false statement under Section 313 of Cr.P.C. and there is purpose and policy behind such a proposition. It also extends the doctrine of principle of natural justice to be afforded to the accused so that he could receive a fair and free trial.
Date 5-11-1998
6. The accused cannot be compelled for answer as the option is with him.
7. Section 313 is, as such, an enabling and not a disabling provision.
8. Accused ought to be examined only by the Court.
9. The twin objectives, one to make aware the accused about the incriminating circumstances and adverse evidentiary material and secondly to elicit the explanation of the accused and to ascertain the defence version. Equally true is the fact that the accused must confine to only relevant answers arising from the questions. Under Section 313(4), answers or statements under Section 313 may be taken into consideration by the Court though there is provision under Section 233(2) to file written statement in a Sessions case. Under Section 233(1), accused when being called upon to enter upon his defence and produce his evidence and if the accused puts any written statement, the Court shall file it on the record.
10. It could, therefore, very well be visualised that filing of written statement is not a substitute for the further examination contemplated at the end of the evidence of the prosecution as envisaged by Section 313 of the Cr.P.C.
11. The answerer or statement is not a substantive evidence.
12. It is, equally, true that, ordinarily, in absence of any other evidence of the prosecution, the conviction cannot be founded upon the answers or the statements made by the accused under Section 313.
13. Mere taking of written statement is not sufficient in lieu of the exercise of Section 313.
14. It is not to be used to supplant the deficiency in the prosecution case. It may also be remembered that even if it is retracted, it can also be considered in a case of more than one accused in a trial each, if accused are to be separately examined pursuant to Section 313.
15. Ordinarily, the statement as a whole may be considered. However, in case of exculpatory and inculpatory parts of the statement, answers can be examined and accepted in part, if the other evidence of the prosecution proves the culpability of the accused and in that case, the inculpatory part of the statement supported by the evidence of the prosecution can be accepted separately.
16. Thus, the statement may be exculpatory or inculpatory or both. But when there is other reliable evidence to support the prosecution case for conviction, the Court may accept part of such a statement and reject the other part of it which is falsified by the evidence on record.
17. Falsity of such a defence, of course, would not be a strong point in favour of the prosecution, but it can be considered as one of the circumstances and links while evaluating the entire evidence of the prosecution.
18. The answers cannot be used against the co-accused. If no answer or statement is given by the accused in course of exercise of Section 313, ordinarily, no adverse inference can be drawn against the accused. It should also be noted that the questions should not mean in an inquisitorial nature. When the written statement is filed on behalf of the accused under Section 233(2), it is evolved out of the legal brain and able assistance. Therefore, it may not be the exact and precise statement and version of the accused as required under Section 313.
16. We would, now, refer the case law relied on by the learned advocate for the accused. Strong reliance is placed on the decision of the Supreme Court rendered in Narain Singh v. State of Punjab 1964 (1) Cri.LJ 730. We have, dispassionately, examined this decision. Relying on the said decision, the contention advanced is that the statement of the accused under Section 313 (old Section 342) cannot be dissected. It has to be read as a whole or it has to be rejected as a whole, as per the submission of learned advocate for the accused. In our opinion, the proposition of law laid down is in the context of the fact that the prosecution failed to lead reliable evidence to establish that accused in that case, Narain Singh, has done any act which rendered him liable for the offence of murder. However, his responsibility, if any arose, only out of the plea raised by him. If the plea amounted to confession of guilt, the Court could convict him relying upon that plea, but if it is amounted to admission of facts and raised the plea of justification, the Court could not proceed to deal the case as if the admission of facts which were not part of the prosecution case was true, and the evidence did not warrant the plea of justification. The trial Court and the High Court held accused Narain Singh guilty only upon the statement of the accused made in his defence under Section 342 of the old Cr.P.C. It was in this context, the conviction recorded by the Trial Court and confirmed by the High Court for the offence under Section 302 Part II of the I.P.C. came to be quashed while allowing the appeal as the sole basis of conviction of the accused was the inculpatory part of the whole statement made under Section 342. This is what precisely we have stated hereinabove that it is not open for the prosecution to straightaway rely on a part of the statement without further clarification made by the accused under old Section 342 and now under Section 313 of the Cr.P.C. in absence of any dependable, trustworthy and reliable evidence against the accused. The observations relied on by the learned advocate for the accused have been made by the Hon'ble Apex Court in the light of the aforesaid peculiar facts and circumstances, where there was no any other reliable evidence to prove the guilt of the accused except the part of the statement made by the accused under old Section 342. So is not the factual scenario before us in this appeal. Therefore, in our opinion, Narain Singh's case (supra) is not at all attracted to the facts of the present case.
17. Again the proposition which we have advanced in the foregoing para is very much reinforced by subsequent two decisions of the Hon'ble Supreme Court wherein Narain Singh's case (supra) has been considered and has been distinguished. In this connection, let us have a look in the decision of a Constitutional Bench in Nishi Kant v. State of Bihar . In this decision, Narain Singh's case has been considered along with the case of Palvinder Kaur v. State of Punjab which was also relied on behalf of the accused. Relying on these decisions, it was vehemently urged before us that no use could be made by the statement contained in the alleged confession to prove that death has been caused as a result of the offence having been committed and once this confession was excluded altogether, there remains no evidence for holding that the deceased had died as a result of such criminality confessed.
The proposition laid down in Nishi Kant (supra) is quite clear and elaborately expounded in para 23 of the judgment. The circumstances and the reasons are succinctly elucidated in para 23 of the judgment while considering as to whether the exculpatory and inculpatory part of the statement of the accused made in the further examination at the end of the trial can be relied on in part If inculpatory statement is supported by other evidence of the prosecution, it could be accepted in part, like that, if the exculpatory part of the statement is found to be inherently probable and when it is contradicted by other evidence of the prosecution. After having considered the facts and circumstances, it was observed in that case that there was enough prosecution evidence to reject the exculpatory part of the statement of the accused. It was further observed that the High Court had acted rightly in not accepting the exculpatory part and dissecting the same with the other evidence to come to the conclusion that the accused was the person responsible for the crime in question.
18. It is, therefore, clear that in absence of any other evidence of the prosecution, the statement of the accused, exculpatory and inculpatory or both cannot be divided or dissected and conviction cannot be solely founded upon inculpatory part of the statement excluding the exculpatory part of the statement. It is quite obvious and reasonable that the statement of an accused under Section 313 of Cr.P.C. does not constitute a substantial or substantive piece of evidence upon which conviction could be founded upon. However, it can be dissected or exculpatory part of the statement can be rejected while accepting the inculpatory part of the statement if the prosecution evidence justifies it. In short, the statement of the accused under Section 313 of the Cr.P.C. could be divided or dissected when the evidence of the prosecution is enough to show that the inculpatory portion is supportable, whereas, exculpatory portion is unsupportable. While summing up these aspects, we may make it again clear that it is permissible for the Court to dissect the statement of the accused under Section 313 of the Cr.P.C. and inculpatory portion can be accepted if supported by other evidence of the prosecution and if the exculpatory portion is found to be inherently improbably in the light of the other evidence of the prosecution.
19. The ratio propounded in Nishi Kant's case (supra) by the Constitutional Bench of the Hon'ble Apex Court is also further followed by the Supreme Court in the case of Bhagwan Singh v. State of Haryana . It has been clearly expounded in the said decision that it is permissible to believe one part of the confessional statement and to disbelieve another and it is enough that the whole of the confession is tendered in evidence so that it may be open to the Court to reject the exculpatory part and to take inculpatory part into consideration if there is other evidence to prove its correctness. Therefore, the vociferous and vehement submission raised on behalf of the accused that the statement cannot be bifurcated or cannot be dissected in all circumstances is absolutely meritless and therefore it is rejected.
20. After having considered the entire evidence threadbare and the facts and circumstances emerging from the record of the present case, following contours may be highlighted.
1. The prosecution case that the appellant-accused Abhu inflicted knife blow on the right side portion of chest of the deceased which culminated into the death of the deceased is, fully, reinforced by five prosecution witnesses.
2. The evidence of P.W. 4, Bhikha Bechar, at Ex. 19, P.W. 5, injured witness Hirji Manji, Ex. 22, P.W. 6, Mohan Chela, a shop-keeper near the venue of offence examined at Ex. 23, P.W. 7, Amrut Chhagan, uncle of Mohan Chela, whose presence at the scene of offence at a distance of 30 ft. was natural, who is examined at Ex. 24 and eye-witness P.W. 8, Bechar Hirji, son of the injured witness Hirji Manji who was examined at Ex. 25, have consistently supported the prosecution case that the appellants-accused, Abhu on the day of the incident at about 12.30 p.m. came near the neerri tree all of a sudden with a naked knife and abruptly inflicted blow of knife on the right side portion of chest of the deceased Bhikha Ramji which has proved to be the cause of his death, as per the medical evidence.
Apart from the circumstances emerging from the record of the present case, supporting the case of the prosecution, there is clear, consistent, coherent and reliable evidence of five eye-witnesses. We have, therefore, no any (sic.) manner of doubt that deceased Bhikha Ramji died a homicidal death and the author of which was original accused No. 1, Abhu Fata. Therefore, the evidence of five eye-witnesses, ipso facto, is sufficient to transfix the culpability and criminality of the accused Abhu.
21. Not only that the evidence of eye-witness is materially reinforced by the FIR produced, at Ex. 20, which was lodged with pomptitude within a spell of less than two hours at the Police Station which is situated 6 k.m. away from the venue of offence: FIR lodged by Bhikha Bechar and produced, at Ex.20 is fully corroborating the prosecution case and the reliable testimony of five eye-witnesses. Again, the forensic science laboratory reports, clearly go to show that the clothes of accused Abhu and the knife stained with blood contained human blood marks which was of the same blood group of the deceased.
22. It is also very clear from the topography and the map produced, at Ex. 17, prepared by the Circle Inspector, who is examined in the present case as P.W. No. 3 that the distance between the pan-beedi stall of Mohan Chela and the place of eye-witness, P.W. 7, Amrut Chhagan, and the venue of offence was hardly 30 feet. Moreover, the incident of 12.30 p.m. on 16-9-1990 in which a young man, Bhikha Ramji lost his life on account of piercing knife blow inflicted by the appellant-accused Abhu was preceded by a quarrel and an attempt to attack on the person of the deceased with the help of vansi which is more dangerous than knife, 20 minutes prior to the main incident on the same day, but for the, timely, intervention and successful warding off the intended blow of vansi by Dhula on the person of deceased Bhikha by Hirji Manji, there would have been a major mishap. In the first incident, Hirji Manji sustained serious injuries on the left thumb when he tried to prevent the blow of vansi by original accused No. 3 Dhula, on the person of deceased Bhikha. So there was a motive for the commission of crime. There was a quarrel between deceased Bhikha Ramji and Dhula about the destruction of certain plants in his field. It also corroborates the prosecution version.
23. We have, therefore, no hesitation whatsoever in holding that the author of manslaughter or culpable homicide of deceased, Bhikha Ramji, is original accused Abhu and nobody else. The prosecution has, successfully, established this aspect beyond reasonable doubt.
24. Before we examine the question of nature of offence committed by the accused, we would like to mention about some of the contradictions pointed by the learned Advocate for the accused in course of his marathon submissions. We have found that the contradictions pointed out to us are at micro-level and they are, totally, inconsequential. It must be remembered that the evidence part came to be recorded by the trial Court almost after a period 15 months from the date of the incident. The witnesses are villagers, rustic and unsophisticated persons. Therefore, some of the contradictions pertaining as to who came from which side and what was the distance from the venue of offence to the place of eye-witness or accused came running with knife from which direction are some of the questions and aspects which could not be said to be affecting the main core and theme of the prosecution case. The main anxiety of the Court in a criminal trial is to see as to whether the substratum of the prosecution and the main story is, successfully, and succinctly established beyond reasonable doubt or not. Needless to reiterate that each and every incidental aspects need not be established beyond reasonable doubt. Not only that, but some of the aspects and contours are inherent in the oral version of the villagers who have testified before the Court almost after an year and five months from the date of incident. Therefore, the contradictions which were sought to be relied on to create a cloud of doubt in the mind of the Court are, in our opinion, totally, insignificant, inconsequential and quite at micro-level. The heart and theme of the prosecution case that deceased Bhikha Ramji was stabbed by accused Abhu which landed on his chest and which brought the final voyage of his life has remained, fully established, clearly proved, succinctly supported without any doubt. Therefore, the contentions and submissions raised on behalf of the accused about the culpability of the accused-appellant before us are without any substance. They are, therefore, rejected.
25. This, obviously, would lead to the appreciation of the nature of offence committed by the accused, Abhu. The trial Court has held the accused guilty for the offence under Section 302 of the I.P.C while acquitting other two accused persons who are the brothers of accused Abhu. Learned advocate for the accused has vehemently contended before us that the accused cannot be held for the offence under Section 302. His contention is that, at the best, the accused could be punished for the offence punishable under Section 304 Part II in the light of the factual scenario emerging from the record of the case. This submission is, seriously and vehemently, opposed by the learned Additional Public Prosecutor.
26. Chapter XVI of the I.P.C. makes provisions of offences affecting the human body. Section 299 provides the definition of culpable homicide. It is very clear from the plain perusal of Section 299 that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death is guilty of committing culpable homicide. It has also three explanations. All culpable homicides are not necessarily murders. Therefore, now, we shall have to consider the provisions of Section 300 which defines the murder. What are the cases and acts in which the culpable homicide is murder and when culpable homicide "is not murder have been provided in Section 300. Except in cases exempted in five exceptions, the culpable homicide is murder. If the act by which death is caused is done with the intention of causing death, or as per the 2nd, 3rd and 4th Clauses attached to Section 300.
27. Distinction between murder and culpable homicide not amounting murder is a complex one and it has vexed the Courts for more than a century. The following comparative table would help in appreciating the distinction between the two offences:
Section 299 Section 300
A person commits culpable homicide if Subject to certain exceptions culpable
the act by which the death is caused is homicide is murder if the act by which
done - the death caused is done-
Intention
(a) with the intention of causing death; (1) with the intention of causing death;
or or
(b) with the intention of causing such (2) With the intention of causing
bodily injury as is likely to cause death; such bodily injury as the offender or knows to be likely to cause the death of the person to whom the harm is caused; or (3) with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or Knowledge
(c) with the knowledge that the act is (4) with the knowledge that the act likely to cause death. is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.
28. For the purpose of appreciation of nature of offence, the defence propounded by the appellant-accused in his written statement, at Ex. 55, would become relevant. The defence of the accused is that in Order to save his brother, Laxman, who was original accused No. 2, from being killed, he had exercised the right of private defence of the body of his brother. The written statement is submitted by the appellant-accused Abhu under Section 233(2) of the Cr.P.C. at Ex. 55. As per the written statement, the defence of the accused is that he on hearing the shout and quarrel, he rushed to the outskirts of the village from his residence and one Bechar Hirji was going ahead of him. Thereafter, the accused found many persons collected at the outskirts and he also found his brother Laxman was embraced from behind and his hands were held by P.W. Bhikha Bechar and deceased Bhikha Ramji was strangulating Laxman, as a result of which he was restlessly and helplessly trying to save himself. Though many persons tried to save Laxman from the grip of strangulation, they failed. Deceased Bechar Ramji was a head-strong person and he was not leaving Laxman. When he found that his brother would be killed and, therefore, as a measure of last resort, the accused took out knife from the possession of one of the persons collected and inflicted in the chest portion of the deceased Bhikha Ramji. Again, his brother, Dhula, was not present as he had gone to lodge complaint at Gadh Police Station. In short, the defence of the accused is that had he not given stab blow to the deceased Bhikha Ramji, his brother Laxman would have been killed by the deceased and other persons.
29. Section 96 of the I.P.C. clearly provides that nothing is an offence which is done in exercise of private defence. The right of private defence is one of the general exceptions incorporated in Chapter IV of the I.P.C. from Sections 76 to 106. Section 97 prescribes the right of private defence of the body and of property. Every person has a right, subject to the restrictions contained in Section 99 to defend, first, his own body, and the body of any other person, against any offence affecting the human body. Secondly, the property, whether, movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass whereas Section 99 of the I.P.C. provides that acts against which there is no right of private defence. Section 99 reads as under:
99. 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.
Since in the present case in course of the exercise of right of private defence to save the life of the brother, appellant-accused has committed the murder of the deceased Bechar Ramji, it would be necessary to refer to the relevant provisions under which the right of private defence of the body extends to causing death. Section 100 of I.P.C. deals with this aspect. It reads as under:
100. 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.
If the offence is not of any of the descriptions articulated in Section 100, right of private defence of the body does not extend to voluntary cause 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. The right of private defence of the body commences as soon as 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.
30. The following aspects may be highlighted before we examine the merits of the present case with regard to the right of private defence.
(1) Right of private defence is a defensive right. It is neither a right of aggression nor of reprisal.
(2) Right of private defence is available only to one who is suddenly confronted with the immediate necessity of averting an impending danger not of his creation. The necessity must be present, real and obvious. The aggressor, even if he received injuries from the victims of the aggression cannot have the right of private defence.
(3) It is settled proposition of law that the onus is on the accused to establish the right of private defence of property or person not on the basis of the standard of proving it beyond doubt but on the theory of preponderance of probability.
(4) Accused might or might not take such a plea explicitly or might or might not adduce any evidence in support of it but he can succeed in his plea if he is able to bring out materials from the records of the case on the basis of the evidence of the prosecution.
Accused, in the present case, has raised the plea of private defence of the body of his brother, Laxman, in his written statement at Ex. 55 exercising his right under Section 233(2) of the Cr.P.C. He has not led any defence evidence. Therefore, in the present case, it will have to be seen from the factual scenario as to whether there is sufficient material to justify the plea of private defence and if yes, whether such a right of private defence of body was available and extendable to causing of death of deceased Bechar Ramji.
31. The general principles regulating and governing the right of private defence of body have been embodied in the I.P.C. which may be highlighted :
(1) The Code excepts from the operation of its penal provisions, the acts done in good faith for the purpose of repelling unlawful aggression but this right. has been regulated and circumscribed by several principles and limitations.
(2) The most salient of them concerning the defence of the body are as follows:
(i) Firstly, there is no right of private defence against an act which is not in itself an offence under the Code.
(ii) The right commences as soon as - not before - a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed as such and it co-terminous with the period of such apprehension in view of the provisions of Section 102, that means, right is available only against the danger imminent, present and real.
(iii) It is a defensive and not a punitive or retributive right. Consequently, in no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence in the light of the provisions of Section 99. It, therefore, becomes clear that the injury which is inflicted by the person exercising the right should be commensurate with the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith to weigh "with golden scales" what maximum amount of force is necessary to keep within the right. Every reasonable allowance should be made for the bona fide defender if he with the instinct of self-preservation strong upon him, pursues his defence a little further than may be strictly necessary in the circumstances to avert the attack. It would be wholly unrealistic to expect of a person under assault to modulate his defence step by step according to the attack.
(iv) The right extends to the killing of the actual or potential assailant when there is reasonable and imminent apprehension of the atrocious crimes enumerated in the six Clauses of Section 100. The combined effect of the first two Clauses is that taking the life of the assailant would be justified on the plea of private defence if the assault if the assault causes reasonable apprehension of death or grievous hurt to the person exercising the right. In other words, the person who is in imminent and reasonable danger of losing his life or limb, may, in the exercise of right of self-defence, inflict any harm, even extending to death, on his assailant either when the assault, harm or death inflicted to avert the danger is not substantially disproportionate to and in commensurate with the quality and character perilous act or threat intended to be repelled.
(v) There must be no safe or reasonable mode of escape by retreat for the person confronted with an impending peril to life or of grave bodily harm, except by inflicting death on the assailant.
(vi) The right being, in essence, a defensive right, does not accrue and avail where there is time to have recourse to protection of public authorities as provided in Section 99.
These guidelines and principles are very well explained and expounded in host of case law.
32. In the light of the facts and circumstances emerging from the record of the present case, the plea of private defence propounded by the accused in Order to save the life of his brother, Laxman, cannot be, easily, Ruled out. In fact, it requires serious consideration. Of course, the accused has not led any evidence in support of this plea. But, that is not all. As could be seen from the aforesaid discussion and the general principles, it is open for the accused from the material on record even from the prosecution evidence to show that he was justified in entertaining and exercising his right of self-defence or private defence. There are certain facts and circumstances on record of the present case which indicate that there is some substance in the plea of right of private defence. In our opinion, upon the assessment and the evaluation of the evidence of the prosecution, in general, and in view of the following factors and aspects, in particular, the accused was entitled to exercise the right of private defence of the body of his brother, Laxman.
(1) Laxman was his real brother and there were 4 to 5 persons present near the Neem tree.
(2) There was quarrel between both the sides and on hearing the shouts and noise of quarrel, accused Abhu reached on the venue of offence running from his place.
(3) On coming to the venue, he saw that his brother Laxman was subjected to physical torture by the complainant, Bhikha Bechar, and injured Hirji Manji. There is no evidence on record to show that Laxman was armed with some weapon. There is also no evidence to show that other brother of the accused, Dhola, who was holding vansi was present at that time.
(4) Therefore, it becomes clear that Laxman, brother of the accused was alone on one side and there were 4 to 5 persons on the other side. There were exchange of hot words. There was a quarrel, as a result of which Abhu rushed to the venue.
(5) The first incident which occurred 20 minutes before the main incident in the field with deceased Bhikha Ramji is unquestionable.
(6) When deceased Bhikha Ramji was returning along with complainant Bhikha Bechar and injured Hirji Manji and when they reached near the field of the deceased which is adjoining the field of the accused, deceased found some plantations were cut and destroyed, as a result of which, there was a quarrel. Three persons, namely, Laxman, his brother Dhula and his wife questioned the deceased which resulted into serious quarrel.
(7) Original accused No.3 Dhula, brother of the appellant-accused Abhu, attempted to assault a vansi blow on the person of the deceased which was warded off and saved by Hirji Manji, who sustained injuries on his left hand.
(8) It is an admitted fact that insofar as the first incident is concerned which preceded the main incident in question, accused Abhu was not present. There is nothing on record to show that he had any knowledge about it.
(9) 20 to 30 minutes after the first incident, deceased, Bhikha Ramji, PW, Bhikha Bechar and Hirji Manji came to the outskirts of the village from where they were planning to go the Police Station for lodging complaint. What actually transpired between three persons on one hand and Laxman on the other hand has not been clearly brought out. However, Laxman has sustained injuries which is not in dispute. Again, Dhola, had gone to the Police Station first before the FIR, Ex. 20, came to be lodged by Bhikha Bechar. It gives a legitimate rise for an inference that the deceased and his side must have coerced or harassed Laxman who was alone. There is no clear evidence that somebody strangulated Laxman much less the deceased.
(10) However, accused Abhu on coming to the venue and on seeing his brother being harassed, apprehended danger of his body inflicted a knife blow on the chest portion of the deceased.
The spectrum of material facts enumerated hereinbefore arising out of the evidence of the prosecution, we find some substance in the plea of right of private defence of the body of Laxman by the accused. However, we have not been able to clearly find from the record that there was so imminent and real threat of the Jife of Laxman which necessitated the causing of death by accused Abhu of deceased Bhikha Ramji. Nothing has been, successfully, pointed out from the record which would undoubtedly show that the life of Laxman was in danger and he would have been killed or that there was an apprehension of his life being lost. Therefore, in our opinion, accused Abhu though was entitled to exercise of right of private defence of body of his brother, Laxman, was not justified in causing the death of Bhikha Ramji who was unarmed. It can, therefore, safely, be concluded that the accused-appellant before us though was entitled to exercise of right of private defence of the body of his brother Laxman, exceeded in his right taking the life of Bhikha Ramji. We have, therefore, no hesitation in holding that the appellant-accused Abhu exceeded the right of private defence as there was no imminent danger or real apprehension of the life of his brother Laxman. Therefore, there was no justification for him to take the life of the deceased Bhikha Ramji. In the circumstances, appellant-accused Abhu has, undoubtedly, exceeded the right of private defence.
33. Now, the next question which falls for our consideration is, as to under what provisions of law the appellant-accused is accountable and guilty for being punished. Since we have found that the accused was entitled to private defence of the body of his brother Laxman, obviously, we cannot support the conviction of the appellant-accused under Section 302 of the I.P.C. recorded by the learned trial Judge. The conviction and the resultant sentence awarded by the trial Court under Section 302 to the appellant-accused, therefore, cannot be sustained. Notwithstanding, that the question would, arise as to under what provisions of law, the appellant-accused is liable to be punished since he exceeded the right of private defence. In our opinion, the appellant-accused is liable to be punished under Section 304 Part I of the I.P.C.
34. Let us have a look at the said provisions. Section 304 provides punishment for culpable homicide not amounting to murder. That is, precisely, is the case in this appeal insofar as the appellant-accused is concerned. He is responsible for the culpable homicide of the deceased Bhikha Ramji. But the culpable homicide cannot be said to be a murder as it was done in the purported exercise of right of private defence of the body of his brother Laxman. However, at the same time, we have noticed that he exceeded in the exercise of his right of private defence. Therefore, the provisions of Section 304 of the I.P.C. shall be attracted.
Section 304 reads as under :
304. Punishment for culpable homicide not amounting to murder: - Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with intention of causing death, or of causing such bodily injury as is likely to cause death;
or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death It is clear from the provisions of first part of Section 304 that whoever commits culpable homicide not amounting to murder is liable to be sentenced for life imprisonment or imprisonment of either description for a term which may extend to ten years and also shall be liable to fine, if the act with which the death is caused is done with intention of causing death or of causing such bodily injury as is likely to cause death. The appellant-accused is, in our opinion, therefore guilty of culpable homicide not amounting to murder and liable to be punished under Section 304 Part I.
35. The next question which would fall into focus is with regard to the quantum of sentence. Maximum sentence is imprisonment for life. While considering the quantum of sentence, we have heard learned Advocate for the accused and the learned Addl. Public Prosecutor. Our attention was invited to the fact that the appellant-accused has been in custody as an undertrial and thereafter as an convict since 16-9-1990, i.e. almost for a period of more than 8 years minus the period enjoyed on temporary bail, parole and furlough etc. The incident is eight years old. The accused is a young man. He had married just before the incident. He has an old mother. Insofar as the question of quantum of sentence and punishment is concerned, law mandates the Court under Section 235 of the Cr.P.C. to consider the personal factors and aspects of the accused. Therefore, while fixing the quantum of sentence, it is obligatory for the Court to consider the magnitude of the offence, type of the offence committed with weapon, number of blows inflicted upon the deceased, the conduct of the accused at that time and to ascertain whether he acted in a cruel manner along with facts and circumstances relatable to the accused.
36. There is one (sic) another important aspect which requires consideration. In the field of criminology and penology, apart from the facts and circumstances, victimology has also its importance. Unfortunately, victimology has remained neglected. Victimology means the science of relationship between the victims and crime and creators of the crime. The victims of the crime shall be entitled to compensation if they have not contributed in the emergence of the crime. In the present case, we are required to consider this aspect seriously. Deceased, a young man, died leaving behind widow and 4 sons at the time of incident. The life of the bread-winner of the family was cut short by the accused by exceeding the right of private defence. In our opinion, therefore, there is a fit case for consideration of grant of amount of compensation to the heirs and legal representatives of the deceased, Bhikha Ramji, out of the amount of fine which we propose to impose hereinafter.
Section 357 of the Cr.P.C. empowers the Court for payment of compensation. The object of Section 357 is to award compensation to persons who are entitled to recover from the persons sentenced even though fine does not form part of the sentence. Again the purpose of this provision is to provide compensation payable to the persons who are entitled to recover damages from the person sentenced out of the amount of fine. It is the duty of the Court to take into account the nature of crime, the injuries suffered, the justness of the claim for compensation, the capacity of the accused to pay and other relevant circumstances while fixing the amount of fine or compensation. In number of decided cases, guidelines have been provided for awarding compensation. There is purpose and policy behind enacting the provisions of Section 357 in the Cr.P.C. which promotes the concept of victimology in he realm of criminology.
37. Before we conclude, we reiterate that in the light of the facts and circumstances emerging from the record of the present case and upon dispassionate examination of the testimonial collection and the documentary evidence to which we were taken through and also having, anxiously, heard the detailed submissions coupled with the relevant provisions of law enumerated hereinabove and the relevant case law, we are fully convinced that the appellant-accused, Abhu Fata, is not liable for conviction and punishment under Section 302 of the I.P.C., but is guilty for committing culpable homicide not amounting to murder of deceased Bhikha Ramji by inflicting a knife blow on his right side chest portion which culminated into his death in course of exercising right of private defence and exceeding in the said exercise is therefore held guilty for the offence under Section 304 Part I.
38. We have noticed earlier that the accused has been in custody as an under-trial and thereafter as a convict almost for a spell of eight years. Considering the facts and circumstances, the age and avocation of the accused and the liability to maintain the old mother, the ends of justice would be met if the period of sentence undergone is taken as sentence awarded. Section 304 Part I also provides the payment of fine over and above the punishment of imprisonment, as observed by us hereinbefore in course of our discussions that victimology has important role to pay and it is in this context the Legislature in its wisdom has provided statutory provisions in Section 357 of the Cr.P.C. Therefore, the accused is also directed to deposit fine of Rs. 20,000/- (Rupees twenty thousand only) and in default to undergo one year rigorous imprisonment. The amount of fine shall be paid to the heirs and legal representatives of the deceased after due verification by the trial Court and the amount of fine shall be deposited before the trial Court within a period of one month from today.
39. In the result, the conviction and sentence of the appellant-accused under Section 302 of the I.P.C. recorded by the trial Court is quashed and set aside and the appellant-accused Abhu Fata is convicted under Section 304 Part I. The period of eight years of sentence undergone by the appellant-accused is treated as sufficient. The appellant-accused is also directed to pay an amount of Rs. 20,000/- (Rupees twenty thousand only) by way of fine and in default to undergo further rigorous imprisonment for a period of one year. The fine of Rs. 20,000/-, if deposited, shall be paid to the heirs and legal representatives of the deceased upon due verification by the trial Court. One months's time is granted for deposit of fine.
40. The trial Court shall direct the Jail authorities to release the appellant accused Abhu Fata immediately on his depositing the amount of fine before the trial Court without waiting for any further Order from this Court. Appeal is accordingly partly allowed.