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PETITIONER: NARAIN SINGH

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT: 21/08/1962

BENCH:

ACT: Criminal   Trial-Murder-Prosecution   evidence    discarded- Conviction   on   statement  of   accused-Statement   pertly exculpatory  and  partly inculpatory-lf must be  used  as  a whole-Code  of Criminal Procedure, 1898(Act V of  1898),  s. 342.

HEADNOTE: The appellant and three others ’were charged with the murder of  B.  The prosecution case was that there  was  a  dispute between  B and the accused over diverting the flow of  water in the fields, that the appellant armed with a stick and the others with spear, kaholi and salang assaulted B and B  died of  the  injuries infliced.  In his statement under  s.  342 Code  of Criminal Procedure the appelant stated that  B  had thrown him on the ground and had 679 attempted  to  strangulate him whereupon the  took  out  his kirpan  and  struck B in self defence.- The  Sessions  Judge disbelieved  the  prosecution evidence  and  acquitted   the three other accused persons ; but he convicted the appellant under  s.304 Part 11 Indian Penal Code relying on a part  of his  statement in which he admitted having strick blows  but rejecting      the      part      that      B      attempted to strangulate him. He had that the only apprehension  which the  appellant could have was of simple hurt which  did  not give  him the right to cause the death of B. On  appeal  the High Court confirmed the conviction. Held, that the conviction of the appellant under s.304  Part 11  Indian Penal Code could not it-and.  In  convicting  the appellant the courts below had accepted A case which was not the case of the prosecution but had relied only upon a  part of  the statement of the appellant made in his defence.   It was  not open to the courts to dissect the statement and  to pick  out  the incriminating part and to reject  the  excul- patory  part  on  the ground that it was  not  supported  by evidence.  If in his statement the accused confesses to  the commission  of the offence charged he may be convicted  upon that confession, but if he does not confess and sets up  his own  version and seeks to explain his conduct pleading  that he has committed no offence, the statement can only be taken into consideration in its entirety.  Taking the statement of the appellant in its entirety, he had an apprehension that B was  attempting  to strangulate him and this  gave  him  the right  of  defence of person extending even to  causing  the death of the assailant.

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 218  of 1959. Appeal  by special leave from the Judgment and  order  dated September  8,  1959, of the Punjab High  Court  in  Criminal Appeal No.354 of 1959.’ Frank  Anthony,  K. C. Agarwala and P. C. Agarwala  for  the appellant. B.K. Khanna and P. D. Menon,  for the respondent. 1962.   August 21.  The Judgment of the Court was  delivered by 680 SHAH,  J.--After arguments were concluded in this appeal  we ordered that the appellant Narain Singh be acquitted of  the offence  under  s. 304 Part II of the Indian Penal  Code  of which he wag convicted and the sentence passed on him be set aside.  We proceed to set out our reasons in support of  the order. Narain  Singh and his three nephews-Mehar Singh, Mewa  Singh and  Pakhar  Singh-were tried before the Court  of  Session, Ludhiana  for offences punishable under s. 302 read with  s. 34. of the Indian Penal Code, on the charge that on  October 31, 1958, they had in furtherance of their common  intention caused  the death of one Bachan Singh by making a  murderous assault on him. The prosecution case was that in the evening of October  31, 1958,   when  Narain  Singh  and  his  three  nephews   were irrigating  their field, Bachan Singh diverted the  flow  of water into his own filed.  Narain Singh and his nephews were thereupon enraged, and there was a quarrel between them  and Bachan  Singh.  Narain Singh and his nephews made an  attack upon  Bachan  Singh  with  a  kaholi,  caused  him   serious injuries.  According to the prosecution, Mehar Singh at  the time  of  the assault was armed with a spear,  Pakhar  Singh with  a  Kaholi, Mewa Singh with a salang and  Narain  Singh with a stick.  A Complaint was lodged about the assault with the  Notice,  and  Bachan Singh was  removed  to  the  Civil Hospital,    Ludhiana.    The   Sub-Inspector   of    Police investigating  the  case recorded the  statement  of  Bachan Singh, and a First Class Magistrate of Ludhiana recorded his declaration  on  the evening of November  2,  1958.   Bachan Singh died on November 3, 1958. Narain Singh and his nephwes were then prosecuted before the Court of Session Ludhiana for the offence of murder.  At the trial, Narain                             681 Singh-pleaded that he bad acted in exercise of the right  of self  defence  and  had caused  injuries  ’to  Bachan  Singh because the latter had thrown him down and had attempted  to strangulate him.  His statement in the Court of Session,  on which he was convicted, was as follows :-                "The  correct facts are that when I  objected               to  the deceased cutting the nakka  he  caught               hold of me and threw me on the ground.  I  was               alone at the time.  The other three co-accused               were  not with me.  After I had fallen on  the               ground  the deceased attempted to  strangulate               me.   I  was  then wearing  small  kirpan.   I               unsheathed  it  and used it  in  self  defence               causing  a couple of injuries to the  deceased               on the alarm raised by me, Mehar Singh (my co-               accused) who was coming from the khal  nearby,               came  to  the  spot and rescued  me.   He  was               armless  and did not cause any injury  to  the               deceased.   I did not carry any stick but  was

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             wearing a small kirpan as usual." Pakhar  Singh  and Mews Singh denied their presence  at  the scene  of offence.  Mehar Singh claimed that he was  present at  the  scene, and he had tried to intervene  and  separate Bachan Singh and Narain Singh.  Narain Singh and Mehar Singh relied upon the circumstance that they also bad injuries  on their  person  which were noticed when they  were  medically examined.   Narain Singh had six contused injuries and  Mehr Singh  had one incised injury and four  abraded  contusions. Before  the Court of Session, Jagir Singh-a witness for  the prosecution  made  important  variations  in  his  story  as originally  related  by him in his complaint at  the  police station.  Kaka, who, it was claimed by the prosecution,  was an   eye-witness,   did  not  support  the  case   for   the prosecution.  Hakku, another witness, was 682 not  examined by the prosecutor, but was  merely  "’tendered for  cross-examination".   One  Johri  whose  name  was  not mentioned  in  the  complaint  was  also  examined  by   the prosecutor.   Two statements of Bachan Singh which  were  in view  of  his’ death admissible  as  dying  declarations-one recorded  by the Investigating Officer and the other by  the First  Class  Magistrate,  Ludhiana-were  also  tendered  in evidence.   The  Sessions Judge held that  the  evidence  of Jagir  Singh  was unreliable and That Johri could  not  have witnessed the assault.  The two dying declarations were.  in the  view  of the Judge, unreliable, for  Bachan  Singh  had before he made the statements ample opportunity to know  how the investigation was proceeding, had consulted Jagir  Singh and  had opportunity of discussing with him the case  to  be set  up.  Again, the story set up in the dying  declarations furnished no explanation of the injuries received by  Narain Singh  and Mehar Singh.  The medical evidence was  also  not helpful  to the case for the prosecution.  Bachan Singh  had four incised injuries on his person, three on the cheat, and the  fourth on the ,,ring finger left side".  None of  these injuries  could  be caused with a salang or  a  kaholi:  the incised  injuries  could be caused by a spear  and  also  by kirpan.   Therefore  in the view of the Sessions  Judge  the oral  and  other evidence was insufficient  to  sustain  the charge of .murder against the three nephews of Narain Singh. Relying, however, upon the statement made by Narain Singh he held  that the injuries on the person of Bachan  Singh  were caused  by  the  former.   He observed  that  the  marks  of injuries  on  the  person  of Narain  Singh  "bore  out  his suggestion  that Bachan Singh had obtained strong hold  upon him  with a view to strangulate him".’ But there was not  an iota  of evidence on the record to’ prove that Bachan  Singh had  attempted  to  strangulate him".  In the  view  of  the Sessions Judge 683 there  being no marks of injury, however slight, around  the throat of Narain Singh and that he had not made a  complaint to  the medical officer who had examined him  shortly  after the assault "it was apparent that Narain Singh could have no apprehension of death or grievous hurt. x          x          x          x        x The only apprehension which Narain Singh had was simple hurt and  this  certainly gave him no right to take the  life  of Bachan  Singh."  The Sessions Judge,  therefore,  hold  that Narain  Singh  was justified in resisting  Bachan  Singh  in exercise  of  the right of defence of person,  but  was  not justified  in using "’the kirpan in such a. manner and  with such-force as to cause the death of Bachan Singh by piercing one of his lungs".  The Sessions Judge accordingly acquitted

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Mewa  Singh, , Mehar Singh and Pakhar Singh of  the  offence charged and convicted Narain Singh of the offence punishable under a. 304 Part Tr of the Indian Penal (ode and  sentenced him to suffer rigorous imprisonment for five years. Against  the order of conviction and sentence  Narain  Singh preferred  an appeal to the High Court of Punjab.  The  High Court  agreed with the view of the Sessions Court  that  the evidence  was  insufficient to establish the  case  for  the prosecution,  the  High Court also held  that  the  Sessions Court  was justified in relying upon the statement  made  by Narain Singh under s. 342 of the Code of Criminal  Procedure and in holding that Narain Singh "had exceeded the right  of self-defence  by  causing  the  death  of  Bachan  Singh  by stabbing  him  with  a  kirpan.  had  committed  an  off-nee punishable under s-304 part 11 Indian Penal Code.  The  High Court,  however,  reduced the sentence imposed  upon  Narain Singh  to rigorous imprisonment for 3 years and  subject  to that modification dismissed the 684 appeal  against the order of conviction and sentence.   With special leave Narain Singh had appealed to this Court. The case for the prosecution was that Narain Singh, when  he participated in the assault on Bachan Singh, was armed  with a stick. but the evidence of the witnesses about the assault on  Bachan  Singh  has not been accepted  by  the  Court  of Session  and  the  High Court.  In the view  of  the  Courts injuries on the person of Bachan Singh were caused by Narain Singh  by striking him with a kirpan, and the three  nephews of  Narain  Singh had not participated in the  assault.   In finding Narain Singh guilty of the offence under s.304  Part II  for causing injuries to the victim Bachan Singh with  a, kirpan the Court of Session and the High Court have accepted a  case which was not the case of the prosecution, but  have relied  only  upon the statement Narain Singh  made  in  his defence.   Under s.342 of the Code of Criminal Procedure  by the  first subsection, insofar as it is meterial, the  Court may  at  any  stage of the enquiry or trial  and  after  the witnesses for the prosecution have been examined and  before the  accused  is  called  upon for  his  defence  shall  put questions to the accused person for the purpose of  enabling him  to explain any circumstance appearing in  the  evidence against  him.   Examination under s.342 is primarily  to  be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation-if any, of the incident which forms the subject- matter  of the charge and his defence.  By sub-s.  (3),  the answers   given   by  the  accused  may   "be   taken   into consideration" at the enquiry or the trial.  If the  accused person  in  his  examination under 9.342  confesses  to  the commission of the offence charged against him the court may, relying,  upon that confession, proceed to convict him,  but if he does not confess and in 685 explaining  circumstance appearing in the  evidence  against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement  of the  accused  can only be taken into  consideration  in  its entirety.   It  is  not open to the  Court  to  dissect  the statement and to pick out a part of the statement which  may be   incriminative,   and  then  to  examine   whether   the explanation  furnished  by the accused for  his  conduct  is supported  by  the evidence on the record.  If  the  accused admits  to  have  done  an  act  which  would  but  for  the explanation  furnished by him be an offence,  the  admission cannot be used against him divorced from the explanation.

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The  courts  below  were of the view  that  the  prosecution evidence  as  it stood, was insufficient to bring  home  the charge  against Narain Singh and his nephews.  The case  for the prosecution that Narain Singh was armed with a stick and joined  in  the assault upon Bachan Singh was sought  to  be established  by  affirmative  evidence.   The  case   failed because the evidence in support of the case was  unreliable. Narain Singh admitted that he had caused injuries to  Bachan Singh  with a Kirpan carried by him, but he  explained  that lie  caused the injuries when he was thrown down and  Bhchan Singh  was attempting to strangulate him.  There can  be  no doubt  that  if  a person  reasonably  apprehends  that  his assailant is attempting to strangulate him, exercise of  the right of defence of person extends even to causing death  of the assailant.  Narain Singh pleaded that he had fallen down and Bachan Singh attempted to strangulate him and  therefore he caused injuries to Bachan Singh in exercise of the  right of  self  defence.   This plea had to  be  considered  as  a composite  plea., it was not open the court  to  investigate whether Narain Singh could have reasonably apprehended  such injury to 686 himself  as  justified him in causing the death  of  Bach-in Singh.  Where a person accused of committing an offence sets up  at his trial a plea that he is protected by one  of  the exceptions, general or special, in the Indian Penal Code, or any other law defining the offence the burden of proving the exception  undoubtedly  lies upon him.  But this  burden  is only  undertaken  by  the accused if  the  prosecution  case establishes  that in the absence of such a plea he would  be guilty  of  the  offence  charged.   The  prosecution  case, however,   did   not   by   reliable   evidence    establish affirmatively  that  Narain  Singh had done  any  act  which rendered   him  liable  for  the  offence  of  murder.   His responsibility, if any, arose only out of the plea raised by him:  if  the plea .amounted to a confession  of  guilt  the court  could convict him relying upon that plea, but  if  it amounted  to admission of facts and raised a plea of  justi- fiction,  the court could not proceed to deal with 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 courts below were, therefore, in our judgment, in  error in  convicting Narain Singh of the offence under s.304  Part II of the Indian Penal Code. Appeal allowed. 687