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CASE NO.: Appeal (crl.)  506 of 2005

PETITIONER: Surendra & Anr.

RESPONDENT: State of Maharashtra

DATE OF JUDGMENT: 24/08/2006

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: J U D G M E N T

S.B. SINHA,  J :

                The Appellants herein are brothers.  They were charged with  commission of an offence punishable under Section 302 read with Section  34 of the Indian Penal Code for causing the death of one Devaji and for  committing an offence punishable under Section 324 read with Section 34 of  the Indian Penal Code for causing hurt to Mina Yenurkr and her brother  Dilip Yenurkr.   

       The deceased admittedly was the uncle of the Appellants.  Injured  Dilip and Mina are his son and daughter.  He had three other sons, viz.,  Jaywanta, Umakant and Navin Nischal as also a daughter by the name of  Hemlata.  The incidence took place on 11.12.95 at about 7 a.m.  Dilip was  allegedly going to a Pan Shop early in the morning.  When he crossed some  distance, Appellant No. 2 allegedly came out with a stick and hurled some   blows on him.  Mina (PW-1) seeing this is said to have raised hue and cry.   The deceased Devaji came out thereafter and made endeavours to rescue  him.  At that time Surendra Appellant No. 1 allegedly took out one ubhari (a  big stick) from a bullock cart and assaulted him.  Mina went to police station  and filed a complaint which was marked as Ex. P-29.  However, a First  Information Report was lodged on a complaint made by Navin Nischal (PW- 2).   

       The Appellants contend that Devaji and Dilip had been nurturing deep  resentment against them and in particular against Appellant No. 1 who after  his father’s death had been looking after the family properties.  They were  determined to kill Appellant No. 1.  Devaji and Dilip allegedly came armed  and made attempts to assault Appellant No. 1 who was milking his cows in  the cattle shed.  Dilip entered into the cattle shed and hurled a blow on his  abdomen.  He warded off the blows by taking them on his left hand and,  thus, received injuries.  Thereafter in course of scuffle between them, Dilip  fell down in the courtyard and sustained an injury on his head.  Devaji  thereafter assaulted Appellant No. 1 with a stump of bullock cart on his right  hand.  He with a view to exercise his right of private defence took out an  ubhari from his bullock cart and injured Devaji.  Mina also intervened in the  meantime and sustained an injury on her left hand.  Allegedly, Appellant No.  1 Surendra thereafter went to police station and lodged a report pursuant  whereto a First Information Report was lodged against Dilip and others for  commission of an offence under Section 324 read with Section 34 of the  Indian Penal Code.  All the injured persons were also sent to the Hospital by  the Investigating Officer.  A chargesheet was also filed under Section 324 of  the Indian Penal Code against some of the prosecution witnesses.   

       Before the learned Trial Judge the prosecution examined several  witnesses out of whom PWs 1, 2 and 3 Mina, Navin and Dilip were daughter  and sons of the deceased.  PW-4 is said to be an independent witness.  

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       The learned Sessions Judge as also the High Court relying on or on  the basis of the evidence adduced by the prosecution, found the Appellants  guilty of commission of the offence charged against them and sentenced  them to undergo rigorous imprisonment for life.

       Mr. Rishi Malhotra, learned counsel appearing on behalf of the  Appellant submitted that the learned Sessions Judge as also the High Court  failed to consider the evidences brought on record from the perspective of  the defences raised by the Appellants and, thus, could have been convicted  only under Part II of Section 304 of the Indian Penal Code.

       Mr. V.N. Raghupathy, learned counsel appearing on behalf of the  State, on the other hand, supported the impugned judgments submitting that  the onus to prove valid exercise of right of private defence was on the  Appellants but they failed to discharge the same.

       Mina, PW-1 is one of the injured witnesses.  According to her, she  had gone to police station and her statement was recorded.  The same was  marked before the learned Sessions Judge as Ex. P-29.  The report of Navin  Nischal (PW-2) which was considered as the First Information Report and  on the basis whereof the investigation started was marked as Ex. P-31.  No  explanation has been offered by the prosecution as to why the report of Mina  was not treated to be a First Information Report.  Mina does not appear to be  wholly truthful as she in her statement before the police did not allege that  both the Appellants were armed with sticks.  In her statement before the  police, she also did not state that Dilip was taken to the house of a neighbour  for taking water although in his statement Dilip stated he had become  unconscious.  Mina had also not made any statement that immediately after  the occurrence, the Appellants had threatened others not to intermeddle in  the matter and if they do so they would face dire consequences.  PW-2  categorically stated that Mina had gone to police station prior to him.   

       In the First Information Report, PW-2 categorically stated:

"my father and sister went there to act as a  mediator, so my brother Dilip ran away"

       He also stated:  

"It is true that Mina was not present when the  accused assaulted my father."

       He admitted that there was a dispute as regards some land; possession  whereof was taken over by the Appellants.

       PW-3 is Dilip.  Interestingly, the witness stated that after being  assaulted, he felt ’somewhat like unconscious’ and went to the house of  neighbour and stayed there.  It may be placed on record that he categorically  stated before the learned Trial Judge:

"We had intention to kill accused Surendra."

       It is not in dispute that the applicants obtained possession of some  lands from them in execution of a decree.

       A suggestion was given to him that Appellant No. 1 had taken out  ubhari from bullock cart to save his life which he denied.  In his cross- examination, he further stated:

"I myself were on inimical terms with the accused.   I did not ask any reason to my father about non- talking terms of the accused inimical terms from  my birth.  I and my father are having dispute about  the agricultural land, with the accused."

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       PW-4 is Kawardu.  He deals in sale of milk.  Although, as noticed  hereinbefore, PW-3 denied that Appellant No. 1 had taken out an ubhari  from his bullock cart but PW-4 categorically stated:

"\005The accused Surendra had taken Ubhari from  the bullock \026 cart which was parked in front of his  house\005"

       He, however, accepted that he was the Manger of Hindustan Nagrik  Sanstha Bhandara and Dilip had been working under him as a peon.  He  furthermore admitted that he had good relation with Devaji for a long time.   It may be noted that in his statement before the police, he had not stated that  Appellant No. 1 assaulted the deceased with an ubhari.   

       PW-5 Govindlal found the dead body of Devaji lying in front of the  house of the accused.   

       PW-8 Dr. Vijay conducted the post mortem.  He found the following  ante-mortem injuries on the person of the deceased:

"1) Lacerated wound 7" x 2", 1" depth on right  partial region of head. 2) Lacerated wound 2" x 1" skin deep right partial  region 1" posterior to injury No. 1 3) Lacerated wound 1" cm x 1 = cm. Triangular  on right pinna of right ear opposite tragus. 4) Lacerated wound 2/2" x 1" x =" on mastoid. 5) Lacerated wound 2" x =" right side of forehead  extending right laterally to occipital region. 6) Abrasion on right shoulder. 7) Abrasion on back 6 x =" left side infra scapular  region. 8) Abrasion on back 4" x =" left side 2" below  injury No. 7."    

       The injuries on the person of PW-1 were as under:

"1) Contusion 1" x =" on the doraome of left  palm. 2) Contusion left elbow 1" x =" 3) Contusion on left shoulder 1" x ="."    

       Dilip is said to have suffered the following injuries:

"1) Contusion 2" x =" on forehead above left eye  brow. 2) Lacerated wound 1 cm. x = cm. Above injury  No. 1"  

       PW-8 accepted that the injuries suffered by PW-1 and PW-3 could be  caused by fall on hard substance.  They did not suffer any fracture.  He also  accepted that injuries Nos. 6, 7 and 8 on the person of the deceased being  abrasions which were suffered by Devaji, could be caused due to fall.

       The Investigating Officer examined himself as PW-9.  He admitted  that he had sent Appellant No. 1 to the Central Hospital, Bhandara because  he had injuries on his person.   

       Taking place of the incidence is not in dispute.  The Appellants had  taken possession of the land from the deceased in execution of a decree.  The  deceased and Dilip, therefore, must be nurturing grudge against them.   Admittedly, a large number of litigations were pending between the parties.  

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       The learned Trial Judge also in his judgment noticed that the deceased  and his son had intention to kill Appellant No. 1 and the Appellants suffered  injuries.  Despite the admitted fact that a case under Section 324 of the  Indian Penal Code was registered against Dilip and his father, the  Investigating Officer had not brought any material on records as regards the  injuries suffered by them.  The Appellants had called for the injury report  but the same was not produced.   

       The Investigating Officer even did not draw up a sketch map.  He did  not make any investigation from the point of view of the defence.  The  investigation was, thus, not fair.   

       In a case of this nature, in our opinion, a broad view of the entire  matter was required to be taken, viz., (i)     Appellant No. 1 was not armed and he at a later stage of quarrel  took out an ubhari from a bullock cart. (ii)    He had raised a contention even in his bail petition that he had  exercised his right of private defence.

       We are not unmindful of the fact that in all circumstances injuries on  the person of the accused need not be explained but a different standard  would be applied in a case where a specific plea of right of private defence  has been raised.  It may be true that in the event prosecution discharges its  primary burden of proof, the onus would shift on the accused but the same  would not mean that the burden can be discharged only by examining  defence witnesses.   

       The learned courts below committed a manifest error of law in  opining that the Appellants had not discharged the initial burden which is  cast on them.  Even such a plea need not be specifically raised.  The Courts  may only see as to whether the plea of exercise of private defence was  probable in the facts and circumstances of the case.  

       In State of U.P. v. Ram Swarup and Another [(1974) 4 SCC 764], this  Court stated the law, thus:

"The burden which rests on the prosecution to  establish its case beyond a reasonable doubt is  neither neutralised nor shifted because the accused  pleads the right of private defence. The  prosecution must discharge its initial traditional  burden to establish the complicity of the accused  and not until it does so can the question arise  whether the accused has acted in self-defence. This  position, though often overlooked, would be easy  to understand if it is appreciated that the Civil Law  Rule of pleadings does not govern the rights of an  accused in a criminal trial. Unlike in a civil case, it  is open to a criminal court to find in favour of an  accused on a plea not taken up by him and by so  doing the Court does not invite the charge that it  has made out a new case for the accused. The  accused may not plead that he acted in self-defence  and yet the Court may find from the evidence of  the witnesses examined by the prosecution and the  circumstances of the case either that what would  otherwise be an offence is not one because the  accused has acted within the strict confines of his  right of private defence or that the offence is  mitigated because the right of private defence has  been exceeded. For a moment, therefore, we will  keep apart the plea of the accused and examine  briefly by applying the well-known standard of  proof whether the prosecution, as held by the

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Sessions Court, has proved its case."

       Yet again in Yogendra Morarji v. State of Gujarat [(1980) 2 SCC  218], this Court opined:

"Before coming to the facts of the instant case, the  principles governing the burden of proof where the  accused sets up a plea of private defence, may also  be seen. Section 105, Evidence Act enacts an  exception to the general rule whereby in a criminal  trial the burden of proving everything necessary to  establish the charge against the accused beyond  reasonable doubt, rests on the prosecution.  According to the section, the burden of proving the  existence of circumstances bringing the case  within any of the General Exceptions in the Indian  Penal Code; or within any special exception or  proviso contained in any other part of the Code or  in any other law, shall be on the accused person,  and the Court shall presume the absence of such  circumstances. But this section does not neutralise  or shift the general burden that lies on the  prosecution to prove beyond reasonable doubt all  the ingredients of the offence with which the  accused stands charged. Therefore, where the  charge against the accused is one of culpable  homicide, the prosecution must prove beyond all  manner of reasonable doubt that the accused  caused the death with the requisite knowledge or  intention described in Section 299 of the Penal  Code. It is only after the prosecution so discharges  its initial traditional burden, establishing the  complicity of the accused, that the question  whether or not the accused had acted in the  exercise of his right of private defence, arises."

       In Cherlopalli Cheliminabi Saheb and Another v. State of A.P.  [(2003) 2 SCC 571], this Court stated the law, thus:

"\005In this case, as stated above, the prosecution  has come out with a particular narration of the  incident in question according to which these  appellants and two others stabbed the deceased but  the prosecution has recovered only one weapon,  therefore, it is difficult to appreciate the  prosecution case how by one single weapon all  these four accused persons could have stabbed the  deceased. That apart, the prosecution in its version  of the incident has not explained how the accused  persons suffered injuries and by whom. There is an  obligation on the part of the prosecution to explain  the injuries suffered by the accused. In the instant  case, the accused also came to the hospital almost  at the same time as the deceased and the doctor  examined them after examining the deceased,  therefore, these injuries on the accused persons  must have been caused in the same incident in  which the deceased suffered injuries which later  became fatal. Hence, in the absence of any  explanation from the prosecution as to the injuries  on the appellant, we are of the opinion that the  prosecution version of the incident becomes  doubtful\005"

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       The question was examined at some details in Bishna Alias  Bhiswadeb Mahato and Others v. State of W.B. [(2005) 12 SCC 657]  wherein this Court opined:

"Private defence can be used to ward off unlawful  force, to prevent unlawful force, to avoid unlawful  detention and to escape from such detention. So far  as defence of land against the trespasser is  concerned, a person is entitled to use necessary  and moderate force both for preventing the  trespass or to eject the trespasser. For the said  purposes, the use of force must be the minimum  necessary or reasonably believed to be necessary.  A reasonable defence would mean a proportionate  defence. Ordinarily, a trespasser would be first  asked to leave and if the trespasser fights back, a  reasonable force can be used."

       In regard to the duty of the prosecution to explain the injuries on the  part of the accused, this Court observed:

"Section 105 of the Evidence Act casts the burden  of proof on the accused who sets up the plea of  self-defence and in the absence of proof, it may not  be possible for the court to presume the correctness  or otherwise of the said plea. No positive evidence  although is required to be adduced by the accused;  it is possible for him to prove the said fact by  eliciting the necessary materials from the witnesses  examined by the prosecution. He can establish his  plea also from the attending circumstances, as may  transpire from the evidence led by the prosecution  itself.

In a large number of cases, this Court, however,  has laid down the law that a person who is  apprehending death or bodily injury cannot weigh  in golden scales on the spur of the moment and in  the heat of circumstances, the number of injuries  required to disarm the assailants who were armed  with weapons. In moments of excitement and  disturbed equilibrium it is often difficult to expect  the parties to preserve composure and use exactly  only so much force in retaliation commensurate  with the danger apprehended to him where assault  is imminent by use of force. All circumstances are  required to be viewed with pragmatism and any  hypertechnical approach should be avoided.

To put it simply, if a defence is made out, the  accused is entitled to be acquitted and if not he will  be convicted of murder. But in case of use of  excessive force, he would be convicted under  Section 304 IPC."

       The question again came up for consideration in Nagarathinam & Ors.  v. State, Rep. by Inspector of Police [JT 2006 (4) SC 288] wherein this  Court in an almost identical situation opined:

"The genesis of the occurrence is, therefore,  shrouded in mystery.  This occurrence, admittedly,  took place, but who were thus initial aggressors,

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i.e., the prosecution witnesses or the appellants, is  difficult to say.  The High Court has found that the  prosecution had not been able to prove the charge  of rioting.  The appellants and others did not have  any common object to  cause death of the accused  of the prosecution witnesses.  We have noticed  hereinbefore the nature of injuries on the person of  the appellants.  The first appellant received two  stab wounds and also an incised wound over the  scalp at frontal region.  The appellant No.2  received deep cut wound and an incised wound  over the scalp left side parietal region.  The  appellant No.3 also received an incised scalp  wound over frontal parietal region.  It is not denied  and disputed that they were in the hospital as  indoor patients for a few days.  We have  furthermore noticed hereinbefore that they were  also arrested after a few days\005.   

The High Court although saw that the  injuries suffered by the accused were on the vital  parts of their bodies but without discussing the  evidences, brought on record held that the same  were not sustained by them while exercising their  right of self-defence.  It is true that it is not for the  prosecution to prove injuries on the person of the  accused, in each and every case irrespective of the  nature thereof, but in a case of this nature the same  would require serious consideration as a plea of  right of exercise of self-defence was raised.  It is in  that context that the apprehension of death or  bodily injury in the mind of the accused persons  would have to be determined having regard to the  number of people assembled to take part in  assaulting them, the manner in which they were  assaulted, the arms used as also the situs of injury  received by them.  It is now well settled that a  person apprehends death or bodily injury cannot be  weighed in golden scales on the spur of the  moment and in the heat of circumstances, the  number of injuries required to disarm the assailants  who were armed with weapons."   

       The defence of the Appellants, therefore, could not have been wished  away.  In a case of this nature, it was necessary on the part of the  prosecution to explain the injuries on the part of the accused.  The  investigation of the entire cases and particularly in regard to the fact that  there were cross cases, a fair investigation was expected.  The possibility of  PW-3 and the deceased being the aggressors cannot be ruled out.  It would  bear repetition to state that they had been bearing grudge against Appellant  No. 1.

       Why the occurrence took place in front of the house of the Appellants  had not properly been explained by the prosecution witnesses.  Evidently,  there was no pre-meditation on the part of Appellant No. 1.  He was not  armed.  He took out an ubhari from his bullock cart at a later stage.   

       The possibility of PW-3 and the deceased being aggressors must be  judged from the admission made by PW-3 that they intended to kill  Appellant No. 1.  As has been noticed hereinbefore, the statements of the  prosecution witnesses in regard to the genesis of occurrence and the  presence of the prosecution witnesses at different stages are not uniform.  It  is, therefore, a case where it is likely that sudden fight between the parties  erupted which would attract Section 304 of the Indian Penal Code and not  Section 302 thereof.  It is also a case where an inference can safely be drawn

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that the blows were initially not hurled on the deceased by the Appellants.   They did so at a later stage.  But, Appellant No. 1 suffered minor injuries.   He had not been able to show that the situation was such that he could  reasonably apprehend his death.  They have exceeded their right of private  defence in using more force upon the deceased than was necessary.   

       Recently, the question has been examined at some details in a decision  of this Court in Pappu v. State of Madhya Pradesh [(2006) 7 SCALE 24]  holding: "\005A ’sudden fight’ implies mutual provocation  and blows on each side.  The homicide committed  is then clearly not traceable to unilateral  provocation, nor in such cases could the whole  blame be placed on one side.  For if it were so, the  Exception more appropriately applicable would be  Exception 1.  There is no previous deliberation or  determination to fight.  A fight suddenly takes  place, for which both parties are more or less to be  blamed.  It may be that one of them starts it, but if  the other had not aggravated it by his own conduct  it would not have taken the serious turn it did.   There is then mutual provocation and aggravation,  and it is difficult to apportion the share of blame  which attaches to each fighter.  The help of  Exception 4 can be invoked if death is caused (a)  without premeditation, (b) in a sudden fight; (c)  without the offender’s having taken undue  advantage or acted in a cruel or unusual manner;  and (d) the fight must have been with the person  killed.  To bring a case within Exception 4 all the  ingredients mentioned in it must be found\005"

       For the reasons aforementioned, we are of the opinion that the  conviction of the Appellants under Section 302 read with Section 34 of the  Indian Penal Code cannot be sustained.  They are held guilty for commission  of an offence under Part I, Section 304 of the Indian Penal Code.  They are  directed to suffer rigorous imprisonment for a period of 10 years.  The  conviction and sentence imposed on them under Section 324 read with  Section 34 is, however, upheld.  The sentences, however, shall run  concurrently.  This appeal is, thus, allowed in part and to the extent  mentioned hereinbefore.