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PETITIONER: BHUPENDRASINH A. CHUDASAMA

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT:       04/11/1997

BENCH: M.K. MUKHERJEE, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                THE 4TH DAY OF NOVEMBER, 1997 Present:               Hon’bel Mr. Justice M. K. Mukherjee               Hon’ble Mr. Justice K. T. Thomas Yashank Adhyaru,  Manoj Wad,  Advs. for  Ms. J. S. Wad, Adv. for the appellant. Ms.  H.   Wahi  and  Ms.  Neithono  Rhetso,  Advs.  for  the Respondent.                       J U D G M E N T      The following Judgment of the Court was delivered: THOMAS, J.      One armed  constable of  Special Reserved  Police (SRP) shot at  his immediate  superior (Head  Constable) while the latter was perambulating around Khampla Dam site (in Gujarat State) during  dusk hours  of a cloudy day in July 1983. The victim died on the spot. Appellant was charged and tried for murder, but  the trial  judge entertained  doubt  about  his complicity and  acquitted him.  However, a Division Bench of the High  Court of  Gujarat, while  re-appraising the  whole evidence on  an appeal  filed by the State, felt no speck of doubt that  it was  a cold-blooded murder perpetrated by the appellant. Accordingly,  the acquittal  was reversed and the appellant was  sentenced to imprisonment for life. Appellant thus became  entitled to file his appeal, as of right, under Section 2  of the  Supreme Court  (Enlargement  of  Criminal Appellate Jurisdiction) Act, 1970.      The victim of the gun shot was Ukadbhai Radvabhai. Head Constable of S. R. P. who was posted along with other police personnel at  Khampla Dam  site which  was then in danger on account of  heavy rainfall.  Appellant was  allotted to  the same  platoon  and  was  placed  below  the  deceased.  Some Skirmishes developed and deceased had taken the appellant to task on  the ground  of dereliction  in the discharge of the work allotted to him.      Prosecution case  is that  appellant was of a truculent temperament and  as he  did not  lightly take  the  diatribe hurled against  him by  the deceased  he was  groping for  a suitable  opportunity   to  retaliate.  On  the  evening  of 2.7.1983 had  noted the  appellant walking near the tower of the Dam.  He aimed his rifle at the deceased and pumped four

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bullets into  his vital  parts which  caused his  end  in  a trice.      Post-mortem examination  of  the  dead  body  revealed, inter alia,  one fire  arm wound  on the  back of  the right shoulder with  blackening of the skin and its exit wound was on the  left axilla  with a  big hollow cavity through which lung tissues  protruded; another  entry wound  on the  right scapula, its  exit wound on the 5th vertebra with tearing of skin and muscle over an area of 3" x 3", another entry wound below the  left gluteal fold with balckening of the skin and its exit  would was  on the upper gluteal fold. There was no dispute that  death of  deceased  was  due  to  piercing  of bullets from a fireman.      In this  case appellant  did own  the act of firing the rifle. He  adopted the  following defence which he submitted in writing before the trial court when he was examined under Section 313  of the Code of Criminal Procedure, the material portions of which extracted below:      "I was  doing patrolling  duty with  the service rifle, and at about 7.45 P.M. when it was absolute dark I came near the bridge  for proceeding  towards the  value tower. Then I saw a  flame near  the tower  and  saw  somebody  moving.  I suspected that  some miscreant  was about to commit mischief with fire  on the  valve tower.  As I could not identify the moving person due to want of light I shouted at him to stop. But there  was no reply. So I proceeded further and repeated the shout,  and still there was no reply. I had to open fire in discharge  of may  duties. I heard the sound of something falling down.  I then  reported the  incident to the persons who were in the office. When constable Laxmansinh (PW-2) and Jayantrajsinh (PW-3)  arrived after  seeing the  body of the victim they  informed me  that it was Ukadbhai Radvabhai who received bullet injuries."      Trial court  felt that  the defence  version  is  quite probable and  hence he  is entitled to the benefit of doubt. High Court  found that the trial court went perversely wrong in entertaining  such a doubt on the facts of the case. High Court took  particular not  of certain  circumstances  which showed  that   appellant  was  nutring  grouse  against  the deceased.      Ext. B-15  report prepared by the deceased containing a complaint that  appellant committed  acts of  dereliction of duties and that when appellant was warned about it he burled invectives against the deceased and left the work place in a huff. Deceased  expressed his  apprehension, in  Ext.  B-15, that appellant  might do something in revenge and so he made a request to his platoon commander to shift the appellant to some other section.      PW-3 Jayantrajsinh  - a  colleague of both deceased and appellant -  narrated the  incident which ensued exchange of words between  appellant and deceased. The witness also said that when he knew about Ext. P-15 report he snatched it from the  deceased   and  prevailed   upon  him  to  desist  from forwarding it to the superiors, but later when he heard that the appellant  was fuming with acerbity towards the deceased he  returned   Ext.  P-15   to  him.   One  most   important circumstance is,  Ext. P-15  report  was  collected  by  the police from  the bag  of the deceased after his death. There is no dispute regarding the authorship of that report.      The  evidence  in  this  case,  in  the  light  of  the admissions made  by the  appellant, has narrowed down to the following points:  Appellant had  fired his  rifle  and  the deceased who  was on his duty, sustained the bullet injuries and died.  As the  High Court observed, it would have been a close  range   firing.  This  could  be  inferred  from  the

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blackening of the skin around two entry wounds.      Learned counsel  for the appellant first contended that since appellant  was discharging  his official  duties he is entitled to  acquittal. No  person can  claim immunity  from culpable homicide  merely on  the  ground  that  the  killed another person  in discharge  of his  official duties unless such killing  would fall  within the  ambit of  any  of  the exceptions enumerated  in Chapter  IV  of  the  IPC.  Pitted against the  said legal  position learned  counsel  made  an endeavour to  bring it within the scope of Section 80 of IPC which reads thus;      ""Nothing is  an offence  which  is      done by accident or misfortune, and      without any  criminal intention  of      knowledge in  the doing of a lawful      act in  a lawful  manner by  lawful      means  and  with  proper  care  and      caution."      The primordial  requirement of  the said  exception  is that the  act which killed the other person should have been done "with  proper care  and caution".  The very  fact  that accused shot  his  own  colleague  at  close  range  without knowing the  identity of his target smacks of utter death of any care  and caution.  It appears  to us that appellant did not even  remotely entertain the idea putting forward a plea that his act of killing the deceased was done by accident or misfortune, leave  apart the  other ingredients necessary to form the  right under  the said  exception. Argument on that score,  therefore,   deserves  rejection   outright  at  the threshold.      Learned counsel,  alternatively, contended that the act of appellant can be justified under Section 103 of the Penal Code. That  section protects a person who voluntarily caused death of  another person in exercise of the right of private defence of  property "  if the  offence, the  committing  of which, or  the attempting  to commit  which,  occasions  the exercise of  the right,  will be  an offence  of any  of the descriptions hereinafter command namely:-      First - Robbery:-      Secondly, - House - breaking by night;      Thirdly -  Mischief by  fire committed on any building, tent or  vessel, which building, tent or vessel is used as a human dwelling, or as a place for custody of property;      Fourthly- Theft,  mischief or  house -  trespass, under such circumstances as may reasonably cause apprehension that death or  grievous hurt  will be  the consequence,  if  such right of private defence is not exercised.      No doubt, right of private defence would command when a reasonable apprehension  of danger to property commences and such right  can extend to the killing another person even if there was  only an  attempt to  commit any  of the  offences mentioned in  the section. The right subsumed in the section is an  expansion of  the  basic  right  of  private  defence founded in  Section 97. When the two sections are telescoped with  each  other  the  right  of  private  defence  can  be stretched up  to the  extent of  killing another  person  in defending the  property of  not only  his own  but  even  of another person.  Such right  would be  available to a public servant if  the property  sought to be protected is a public property. But  there is  a condition  for claiming  such  an extended right  if the  property sought to be protected is a building. It should be a building used for human dwelling or for custody  of property.  If it  is not  a building of that type the  person exercising  right of private defence cannot go to  the farthest  extent of killing another person unless

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the threatened mischief has caused a reasonable apprehension that  death   or  grievous   hurt  would  otherwise  be  the consequence.      In this  case there  was no pleas at all that appellant had any apprehension of death or grievous hurt. Nor is there a case  that the  tower (which  he feared to have been under threat of  incineration) was  either used for human dwelling or custody  of property.  Hence, there  is  no  question  of countenancing  the   extended  right   of  private   defence envisaged in Section 103.      Nonetheless, if  the building was not for the above use and even  if appellant  had  no  apprehension  of  death  or grievous hurt,  still a  restricted right of private defence can be  claimed by  a person  which is adumbrated in Section 104 of IPC:"      "If the  offence, the committing of      which , or the attempting to commit      which, occasions  the  exercise  of      the right  of private  defence,  be      theft,   mischief,    or   criminal      trespass,  not   of  any   of   the      descriptions enumerated in the last      preceding section,  that right does      not extend to the voluntary causing      of death,  but does extend, subject      to the  restrictions  mentioned  in      Section  199,   to  the   voluntary      causing to  the wrong-doer  of  any      harm other than death."      Now, the  question is  whether appellant is entitled to the  aforesaid   restricted  right  of  private  defence  of property.      The accused  who pleads  any of  the  exceptions  under Chapter IV  has to prove it since law has cast the burden on him in such situation. Under Section 106 of the Evidence Act the court  will presume  the absence  of it,  Of course, the standard  of   such  proof  is  not  akin  to  that  of  the prosecution to  prove the  guilt of the accused. It is trite law that  such burden  can  be  discharged  by  the  accused showing a preponderance of probabilities.      Appellant put  forward a  case  for  right  of  private defence only  when he  was examined by the trial court under Section 313  of the  code. High Court has noted that the has not disclosed  to any  of the prosecution witnesses that the was unable  to identify  his immediate  superior and thought him to  be a  miscreant and  observed that "no such question with regard  to the  mistaken identity  was put to any other prosecution  witnesses during the cross-examination." On the other hand,  PW-12 (another  SRP personnel  who was  also on duty) has  deposed that he saw the appellant scampering away from the scene of occurrence and that when he was confronted he blurted  out that  he was proceeding to surrender himself since he  had fired  at the  deceased. To none the appellant said that  the fired  the rifle for protecting the tower. To none he  disclosed that  the first  had a  glimpse of  flame which he  thought to be the movement of a miscreant, In fact when  the  dead  body  and  the  surroundings  were  closely examined by the police they did not come across any material which could  have  given  any  mistaken  impression  to  the appellant as  flame of  a torch. Thus, the belated claim  of right of  private defence  was far from the contemplation of the appellant when he opened the fire at the deceased.      In the  light of  the aforesaid  discussion there is no scope to  conclude that  appellant had  any right of private defence to  property. Accordingly, we confirm the conviction

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and sentence and dismiss the appeal.