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CASE NO.: Appeal (crl.)  1090 of 2007

PETITIONER: Jesu Asir Singh & Ors

RESPONDENT: State through Inspector of Police

DATE OF JUDGMENT: 20/08/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT:

J U D G M E N T

CRIMINAL APPEAL NO. 1090 OF 2007 (Arising out of SLP (Crl.) No. 3611 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.       2.      Appellants call in question legality of the judgment  rendered by a Division Bench of the Madras High Court  upholding the conviction of the appellants while directing  acquittal of the co-accused.  Appellants and the co-accused for  the sake of convenience are described as A1, A2, A3 and A4.   The appellants are A1, A2 and A3 and have been convicted for  offence punishable under Section 302 and 341 of the Indian  Penal Code, 1860 (in short the \021IPC\022).  A4 was charged for  offence punishable under Section 302 read with Sections 109  and 341 IPC. Each of the appellants was sentenced to undergo  imprisonment for life and one month respectively for the  aforesaid two offences.         3.      Prosecution version as unfolded during trial is as follows:            The occurrence is shown to have taken place at about  06.30 a.m. on 18.09.1993, by Al to A4 who wrongfully  restraining Gift (hereinafter referred to as \021deceased\022) and in  course of the same transaction at the instigation of A4, Al to  A3 attacked him fatally, resulting in his death. To prove their  case the prosecution examined PWs.1 to 15 besides marking  Exs.P1 to P.30 and M.Os 1 to 10. A4 is mother of Al to A3. PW- 1 is the informant. PW 4 is the mother of PW.1. PW.4 and A4  are sisters.  PW.5 is the wife of Al. PW5\022s sister is Jenitha, who  was the wife of deceased. There was prior enmity between the  two families and they were not in talking terms. This was  because Jenitha, wife of the deceased started living with AI by  deserting her husband.              The deceased married Jenitha about 1= years prior to  the occurrence and a female child was born to them. The two  families were not in talking terms a month prior to the  occurrence. Thereafter, the deceased and his child were living  only with PW.1. On 10.9.1993 deceased went to the house of  Al and asked his wife to come back with him and there a  quarrel arose. At about 5.00 p.m. on that day, all the four

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accused came to the house of PW-1 and asked her the  whereabouts of the deceased and also told her that in their  absence the deceased had called his wife and, therefore, he  must mend his ways; saying so, they damaged the tube lights,  cots and other house-hold articles; out of grace no complaint  was given. Raja is her son and as he fell sick, and was  admitted in the hospital on 17.9.93 and by his bed side PWs.  1, 4 and the deceased were in the hospital. At about 6.30 a.m.  on 18.9.93, PW.1 and the deceased came home to take some  coffee to the hospital and near the house of PW 2 when they  were proceeding from west to east, the accused came from the  opposite direction; Al to A3 were armed with weapons, on  seeing them Gift, the deceased, out of fear, left the cycle and  started running by a lane near the house of PW.2. Seeing that  A4 orally declared that as he is running, he should not be  allowed to run and must be killed. Her brother, i.e. the  deceased, thereafter passed the house of PW.2 and at that  stage Al to A3 restrained him; Al cut him twice on his head  and when her brother attempted to thwart by stretching his  arms, A2\022s attack fell on his right hand, this was followed by  A3 indiscriminately cutting on the other parts of his body and  as they were so cutting, one of the attacks aimed by A2 landed  on the left wrist of  A1  and the attack aimed by A3 landed on  the right hand of A1.  She shouted and PW 2 came running; at  that time, all the accused made good their escape with the  weapons of offences in their hands. She went to the house to  get some money to take her brother to the hospital, where she  found her house damaged; doors, windows and other things  were broken; two of her brother\022s friends, namely, Aaroon,  Singh came there and with their help she took her brother to  the Government Hospital Kottar, where he was pronounced  dead.  PW. 12 examined her and reduced into writing what she  stated. She read it and signed in that complaint which is Ex.P.  1. The personal wearing apparels of the deceased, were  bloodstained and they were recovered. PW.2 witnessed the  occurrence.             PW 10 is the Causality Medical Officer in the  Government Headquarters Hospital at Nagercoil before whom  at 8.00 a.m. on 18.9.1993, the deceased, was brought for  injuries stated to have been sustained by him at the hands of  three known persons. On him he found various symptoms, in  all, 22 injuries and issued Ex.P.12, accident register. He sent  Ex.P.13 intimation to the police and Ex.P.14 is the death  intimation. According to him, except injury No.3, all the  injuries could have been caused by a weapon like an aruval.  At 7.45 am Al appeared before him for injuries stated to have  been sustained by him at 6.30 a.m. at the hands of a known  person, by using a cutting knife. He found two injuries and  issued Ex.P. 15, accident register. Ex.P. 13 is the intimation  sent by him to the police regarding the treatment on Al.            PW. 12 was the head constable who had received  information from the Government Head Quarters Hospital as  well as the death intimation of the deceased.  PW 14 was the  investigating officer, PW 9 is the medical officer who conducted  the post mortem and noted 22 injuries on the body of the  deceased. After completion of the investigation charges were  framed. The accused pleaded innocence and false implication.   Since the accused persons pleaded innocence, trial was  conducted. 15 witnesses were examined to further the  prosecution version.       4.      Trial court placed reliance on the evidence of PW 1 and  found all the four persons guilty. An appeal was preferred by

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the appellants taking the view that the evidence of PW 1 was  not believable. Appellants took the stand that the deceased  was the aggressor who had assaulted A1 causing two injuries.  In any event the accused person had acted in exercise of the  right of private defence and, therefore, no offence was made  out.  Reliance was made on the evidence of Exhibit P 20 to  contend that the information lodged by A1 was not properly  enquired into.  The High Court analysed the evidence of PW 1  and held that investigation in respect of Exhibit P20 was  conducted properly and the prosecution version did not get  affected even if it is held that there was some lapse in  conducting investigation on the basis of Exhibit P20. The plea  of right of private defence was also described. However, the  High Court accepted that evidence was not sufficient to convict  A4.       5.      Learned counsel for the appellant submitted that the  prosecution version is unbelievable.  The presence of PW1 is  highly doubtful. When the evidence has been discarded in  respect of A4, conviction could not have been maintained for  the present appellants.  In any event right of private defence  aspect has not been properly considered by the High Court.       6.      Learned counsel for the State supported the order.       7.      We shall first deal with the plea relating to right of private  defence.       8.      The number of injuries is not always a safe criterion for  determining who the aggressor was. It cannot be stated as a  universal rule that whenever the injuries are on the body of  the accused persons, a presumption must necessarily be  raised that the accused persons had caused injuries in  exercise of the right of private defence. The defence has to  further establish that the injuries so caused on the accused  probabilises the version of the right of private defence. Non- explanation of the injuries sustained by the accused at about  the time of occurrence or in the course of altercation is a very  important circumstance. But mere non-explanation of the  injuries by the prosecution may not affect the prosecution case  in all cases. This principle applies to cases where the injuries  sustained by the accused are minor and superficial or where  the evidence is so clear and cogent, so independent and  disinterested, so probable, consistent and creditworthy, that it  far outweighs the effect of the omission on the part of the  prosecution to explain the injuries. [See: Lakshmi Singh v.  State of Bihar (AIR 1976 SC 2263). A plea of right of private  defence cannot be based on surmises and speculation. While  considering whether the right of private defence is available to  an accused, it is not relevant whether he may have a chance to  inflict severe and mortal injury on the aggressor. In order to  find whether the right of private defence is available to an  accused, the entire incident must be examined with care and  viewed in its proper setting. Section 97 deals with the subject- matter of right of private defence. The plea of right of private  defence comprises the body or property (i) of the person  exercising the right; or (ii) of any other person; and the right  may be exercised in the case of any offence against the body,  and in the case of offences of theft, robbery, mischief or  criminal trespass, and attempts at such offences in relation to  property. Section 99 lays down the limits of the right of private  defence. Sections 96 and 98 give a right of private defence  against certain offences and acts. The right given under  Sections 96 to 98 and 100 to 106 is controlled by Section 99.  To claim a right of private defence extending to voluntary

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causing of death, the accused must show that there were  circumstances giving rise to reasonable grounds for  apprehending that either death or grievous hurt would be  caused to him. The burden is on the accused to show that he  had a right of private defence which extended to causing of  death. Sections 100 and 101, IPC define the limit and extent of  right of private defence.  

9.      Sections 102 and 105, IPC deal with commencement and  continuance of the right of private defence of body and  property respectively. The right commences, as soon as a  reasonable apprehension of danger to the body arises from an  attempt, or threat to commit the offence, although the offence  may not have been committed but not until there is that  reasonable apprehension. The right lasts so long as the  reasonable apprehension of the danger to the body continues.  In Jai Dev v. State of Punjab (AIR 1963 SC 612), it was  observed that as soon as the cause for reasonable  apprehension disappears and the threat has either been  destroyed or has been put to route, there can be no occasion  to exercise the right of private defence.        10.     The above position was highlighted in Rizan and Another  vs. State of Chhattisgarh, through the Chief Secretary, Govt. of  Chhattisgarh, Raipur, Chhatttisgarh (2003 (2) SCC 661), and  Sucha Singh and Anr. v. State of Punjab (2003 (7) SCC 643).       11.     Merely because there was a quarrel and some of the   accused persons sustained injuries, that does not confer a  right of private defence extending to the extent of causing  death as in this case. Though such right cannot be weighed in  golden scales, it has to be established that the accused  persons were under such grave apprehension about the safety  of their life and property that retaliation to the extent done  was absolutely necessary. No evidence much less cogent and  credible was adduced in this regard. The right of private  defence, as claimed by the accused persons, has been rightly  discarded.         12.     Even if the High Court found the evidence to be not  sufficient to convict A4 that does not in any way affect  credibility of PW 1\022s evidence so far as present appellants are  concerned.  It is to be noted that there was no suggestion to  PW 1 that A1 acted in exercise of right of private defence.  There is not even any material brought in this regard.  Certain  questions were put to PW 1 in her cross examination.  They  are as follows:            \023I do not see directly that the accused  had attacked or quarreled with Gift earlier to  the occurrence.            The accused did not notice me.  When the  accused chased by brother I did not shout.  I  shouted when the accused attacked my  brother.            The Ist accused attacked my brother on  his head twice.  I could not say where the two  blows landing on his head.  The 2nd accused  attacked my brother on his right hand and  middle of his head.  It is not correct to state  that I had not deposed in the enquiry by  police.  The 3rd accused attacked him on his  back, nose, hand and leg.  I cannot say how

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many blows he had inflicted.  The incident had  taken place around 15 minutes.            It is not correct to state that when my  brother sustained injuries the accused 2,3 and  4 were not present there.  It is not correct to  state that the incident did not take place near  by the lane of Albert Nayagam\022s house.            My brother died only after taking him to  hospital.  It is correct to state that the police  station is located on the way to hospital.\024       13.     The question put in the cross examination to a great  extent probabilise the prosecution version. Though questions  put in cross-examination are not always determinative in  finding an accused guilty, they are certainly relevant.       14.     Looked at from any angle the appeal is without merit and  is dismissed.