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PETITIONER: SAMPAT SINGH

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT: 07/01/1969

BENCH: MITTER, G.K. BENCH: MITTER, G.K. HIDAYATULLAH, M. (CJ)

CITATION:  1969 AIR  956            1969 SCR  (3) 228  1969 SCC  (1) 367  CITATOR INFO :  E          1978 SC 315  (19)

ACT: Code  of  Criminal Procedure (Act 5 of  1898),  s.  342-Non- confessional  statement of accused how far may be relied  on for purpose of conviction.

HEADNOTE: The  appellant  was  tried for murder under s.  302  of  the Indian  Penal Code but was convicted only under s. 304  Part 11  of the Code.  In holding him so guilty the  trial  court and the High Court did not fully believe ,the  prosecution version of the incident but accepted the appellant’s version in part whereby he claimed the right of self-defence.   They however held on the facts that he had exceeded the right  of self-defence  and  convicted  him  accordingly.   In  appeal before  this  Court  it was  contended  that  the  accused’s statement under s. 342 Criminal Procedure Code should only be  considered  in its entirety and a part of it  cannot  be used for the purpose of convicting him.  In support of this contention reliance was placed on the decision of this Court in Narain Singh’s case. HELD : Both the courts below on the facts were justified  in coming  to  the conclusion that the appellant  exceeded  his right  of  self-defence.  Neither court had relied  only  on the,  statement of the appellant under s. 342 Cr.   P.C.  to arrive at the finding.  There was sufficient other  evidence to warrant the conclusion that the right of private  defence had  been  exceeded.   In these circumstances  the  rule  in Narain Singh’s case namely that the conviction of an accused cannot be based on his statement ,alone where the  statement does  not amount to a confession, was not attracted.  It  is permissible,  for  the  court to rely on a  portion  of  the state ment   of   the  accused  and  find  him   guilty   in consideration  of the other evidence against him led by  the prosecution. [234 H-235 C] Narain  Singh  v.  State of Punjab,  [1963]  3  S.C.R.  678, distinguished. Nishi  Kant  Jha v. State of Bihar, [1969]  2  S.C.R.  1033, followed and applied.

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JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 146 of 1967. Appeal  by special leave from the judgment and  order  dated February  27,  1967  of the Rajasthan High Court  in  D.  B. Criminal Appeal No. 32 of 1964. B.R.  Dhawan, B. P. Maurya, P. N. Tiwari,  Santosh  Gupta and Sobhag Mal Jain, for the appellant. K. Baldev Mehta, for the respondent. The Judgment of the Court was delivered by Mitter,  J.  The main question involved in this  appeal  is. whether  there was evidence to justify the finding that  the appellant 22 9 had  exceeded  his right of private defence in  giving  two, blows  with a dagger to one Shyamsingh one of  which  proved fatal. The  prosecution  case was as follows.  There  was  a  long- standing  enmity between the families of Achalsingh  on  the one hand and Hariram and his sons on the other on account of the  fact  that  the admitted advance  of  Rs.  10,000/-  by Hariram to Achalsingh some years back had not been repaid in spite  of  numerous  demands made from time  to  time.   The houses  of Hariram and Achalsingh were situated at  a  short distance  from each other in the City of  Jodhpur.   Hariram had  two sons,.  Rameshwar and Devilal.  Rameshwar had  been given in adoption to his uncle but the relationship  between him and his brother, Devilal continued to be quite  cordial. Rameshwar  was  married to one Ratan  Kanwar  whose  brother Shyamsingh  came to lose his life in the way to be  narrated hereafter.    Achalsingh  had  two  sons,  Sampatsingh   and Shyamlal.   On  March 28, 1963 at about 6 p.m. there  was  a quarrel  between Devilal on the one hand and Asulal,  Sampat Singh,  Shyamlal and two friends of theirs, Kishensingh  and Uttam  Giri  on  the other.  This group  of  people  started abusing  Devilal  whereupon Rameshwar’s wife,  Ratan  Kanwar tried to intervene and stop the quarrel.  The said group who were  all accused in the Sessions Case which  followed  beat both Devilal and Ratan Kanwar.  They also took away a golden Jhumri  from  the  right ear of  Ratan  Kanwar.   Eventually people.  of the locality put an end to this  affair.   Ratan Kanwar  sent  messages  to her  husband  Rameshwar  and  her brother ShyamSingh, deceased.  Before Shyamsingh reached the place, all the accused came from the house of Achalsingh  to that of Devilal and raised a shout asking the latter to come out.  The accused were armed variously, Sampat Singh with  a dagger  and the others with lathis.  Rameshwar who  happened to be there tried to close the door of Devilal’s house,  but the accused managed to get in, and dragged Rameshwar out and started  beating him.  Ratan Kanwar who tried  to  intervene was  also  hurt.   She received a blow on the  head  with  a dagger of Sampatsingh as also lathis blows from the  others. Shyamsingh, the deceased, happened to, come on the scene  at that  hour  and  the  fury of the  accused  fell  upon  him. Achalsinghis  son,  Shyamlal caught hold of  ShyamSingh  and Sampat  Singh,  appellant, struck blows  with  the  Jambiaon Shyainsingh’s thigh and on his back near the waist.   People of the neighborhood like Ambalal (P.W. 14), Nainsingh  (P.W. 13), Satyanarain (P.W. 15) and Bhagwandas (P.W. 16) who came in  aid  of  Rameshwar’s  group were  also  injured  by  the accused.   Nainsingh,  Ambalal  and  Satyanarain  were   all injured  by  the  Jambia of Sampat  Singh.   Thereafter  the accused  left  the  place.   Shyamsingh,  Ratan  Kanwar  and

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Ambalal  were taken away by Rameshwar to the police  station and a first information report was lodged at 8.30 p.m. 230 The injured persons were sent to the hospital and  Shamsingh was  admitted as an indoor patient.  Dr. Ojha  who  examined Shyamsingh thought his condition to be critical and arranged for a dying declaration of Shyamsingh to be recorded at 9.25 p.m.  Shyamsingh stated that he had been wounded  by  Sampat Singh  by means of a Jambia. The City,  Magistrate,  Jodhpur who  came  in  answer to a summons  recorded  another  dying declaration at 10.50     p.m.  The  injury  report  on   the person of Shyamsingh by Dr. K.C. Singhal was as follows:-,               1.  Incised wound 1/4 " x 1/2" x  muscle  deep               tapering               2"  x  1/10" below the medial  aspect  of  the               right thigh               middle part.               2.Incised  wound 1 1/2" x 1/2 "  x  cavity               deep on the left lumbar region, and               3.Teeth marks elliptical, in shape 1  1/2"               in area on the left shoulder. In  spite  of  the operation performed on  him  Shyam  Singh expired  on March 31, 1963 at 4 a.m. and the postmortam  was performed  on the body by Dr. Har Govind.  Dr. Singhal  also examined Ratan Kanwar, Ambalal, Nain Singh and  Satyanarain. On  the  person of Ratan Kanwar there was only  one  incised wound  while there were three such wounds on the  person  of Ambalal,  two  on the person of Nain Singh and  one  on  the person  of  Satyanarain.   On  the  person  of  the  accused Shyamlal  there  appeared various wounds  but  the  injuries according to Dr. Har Govind were all simple in nature caused by  a  blunt weapon excepting a sceptic wound on  the  right little finger about which the doctor could form no  definite opinion.  On the person of some of the other accused several abrasions  were  noticed  on  medical  examination.   Sampat Singh,  the appellant, had a sceptic wound of 3/4 "  X  1/2" skin deep on the right little finger and an abrasion 1/4" x 1/4" on the front of the right knee.  The injuries were  all simple  in  nature.  The Jambia which was recovered  at  the instance of Sampat Singh from his house was not found to  be blood-stained.   The  accused Achalsingh was  arrested  long time after the crime i.e., on 19th April, 1963. On  examination  by the Munsif-Magistrate of  Jodhpur,  Sam- patsingh gave a version of the incident which was completely at variance with the prosecution story.  According to  this, be had learnt at about 5.30 p.m. on March 28, 1963 from  his brother, Shyamlal that Devilal and Shyamsingh had threatened to  beat him.  Some friends, viz., Asulal,  Kishensingh  and Uttam Giri had also gathered in their house for the  purpose of going to a fair.  Uttam Giri wanted to go to the house of Hotchand  and the appellant directed his  brother,  Shyamlal company Uttam Giri.  Shortly thereafter, he heard the cry of Shamlal that he was 231 being  beaten and coming out of the house on to the road  he found  Shyamsingh,  the  deceased,  Nainsingh,  Ambalal  and Satyanarain  beating  Shyamlal and Uttam Giri.   Asulal  and Kishensingh  also  came out and tried to save  Shyamlal  and Uttam   Giri.   Shyamlal  was  lying  on  the  ground   and. Shyamsingh,  deceased was sitting on his chest.   Shyamlal’s eyes  were  bulging out.  The appellant tried to  free.  his brother from. the clutches of Shyamsingh but as he could not do so with bare hands he took out the Jambia which was  tied round  the  waist  of  the deceased  and  wielded  the  same injuring  Nainsingh, Ambalal and Satyanarain who were trying

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to  attack  him’ He also gave a blow on the  thigh,  of  the deceased  but  even  then Shyamsingh would not  let  go  his brother   Shyamlal  whereupon  he  gave  another   blow   to Shyamsingh  on his waist with the Jambia.  According to  the appellant  he had given these blows to save the life of  his brother  Shyamlal and had thereafter run away  throwing  the Jambia on the spot.  Shyamlal’s version which  substantially agreed  with  that  of his brother Sampatsingh  was  to  the effect that Shyamsingh was trying to throttle him (Shyamlal) and he had practicaly lost consciousness; when he came round he  found  Shyamsingh,  deceased, lying  near  him  and  his brother Sampat Singh leaving him.- The  accused  were  committed  for trial  to  the  Court  of Sessions Judge, Jodhpur.  There they repeated the statements made by them before the committing Magistrate.  According to the  Sessions Judge, the version relating to the  occurrence said to have taken place at 6.30 p.m. on March 28, 1963  was not true.  As regards the second occurrence on the same  day at  about  9 p.m. the Judge held that there was  no  beating given  by  any of the accused to the  prosecution  witnesses before  Shyamsingh  reached the place  of  occurrence.   The Sessions  Judge further found that this incident  had  taken place substantially in the manner deposed to by the  accused Sampat  Singh  and others and not as alleged by  the  prose- cution  and  that Shyamsingh had received the  fatal  injury with  a Jambia from Sampatsingh when the former was  sitting ’on  the chest of Shyamlal and had caught hold of his  neck. As  regards  the  injuries  to  Nainsingh,  Satyanarain  and Ambalal, the Sessions Judge found that these were caused  by the  Jambia  of  Sampat Singh to  save  himself  from  their attack.   The  Judge further found that the Jambia  was  not with  the appellant initially but was taken from the  person of the deceased.  For this the Sessions Judge relied on  the statement of the accused.  He however held that the grip  of the deceased on the neck of Shyamlal accused was not of such a  nature  as to lead to an apprehension that  the  deceased meant  to cause death by strangulation.  The Sessions  Judge held  that  the  deceased had caught  hold  of  Shyamlal  to facilitate  the  beating which he intended to give  him  and that  Sampatsingh was a sufficiently powerful man who  could have rescued his brother, Shyam- 232 lal  by  pushing  or dragging Shyamsingh aside  and  not  by inflicting  injuries with the Jambia and  the  circumstances did  not  justify  the  resort  to  such  severe   measures. Alternatively the Sessions Judge held that Sampat Singh  had exceeded  his  right of private defence of his  brother  and could not be protected under the law for the consequences of his  act.   On this view, he convicted the appellant  of  an offence  under S. 304 Part II of the Indian Penal  Code  and sentenced him to rigorous imprisonment for four years and  a fine  of  Rs.   ’100/- or in default to  suffer  two  months further rigorous imprisonment.  He was however acquitted  of the  offences  under  sections  148,  302,  324/323/148  and 324/149 I.P.C. The other accused were all acquitted. On  behalf  of the appellant it Was urged  before  the  High Court,  as  it  was  before us, that  on  rejection  of  the evidence  of  the prosecution witnesses with regard  to  the occurrence  at 6 p.m. and 9 p.m. by the Sessions Judge,  the appellant could not have been convicted merely on the  basis of  his statement under s. 342 Cr.P.C. Reliance  was  placed before us, as before the High Court, on the decision of this Court  in Narain Singh v. State of Punjab(1).  There it  was observed on an interpretation of s. 342 that:               "If  the  accused person  in  his  examination

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             under  S. 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               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." In  that case the prosecution did not by  reliable  evidence establish  affirmatively that Narain Singh had done any  act which  rendered  him liable for the offence of  murder.   To quote the words of Shah, J. in that case :               "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 (1)  [1963] 3 S.C.R. 678. 233 .lm15 plea  of justification, 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." In our view, the ratio of that case is not applicable to the appeal  before  us.   No doubt the Sessions  Judge  did  not accept  the genesis of the prosecution story, namely,   the incident  at’  6 p.m. and was further of the view  that  the account given by the accused was to be preferred to that  of the prosecution with regard to the second incident.  But the High  Court  which  sifted the evidence for itself  did  not take  the  same view of the facts as  the  learned  Sessions Judge.  According to the High Court, there was some sort  of incident at about 6 p.m. between the sons of Achalsingh  and Devilal  and  from  verbal altercation  the  matter  assumed serious’  proportion  leading to a fight.   The  High  Court held’  that  the evidence of Ratan Kanwar and  Devilal  with regard  to  the  assault and the  snatching  of  the  golden jhumri,  though  exaggerated,  was  not  altogether  without foundation.   The accused other than Shyamlal may  not  have been  present on the first occasion but they were  there  on the  scene of the second occurrence.  We may add  that  even the  story of the accused goes to show that there  had  been some trouble before the incident at 8.30 or 9-p.m. The  High Court did not accept the story, with regard to the snatching of the jhumri and was of the view ’that the first occurrence furnished a background for what happened later on.  The High Court also agreed with the trial court that the  prosecution story   that   Achalsingh  and  his  sons   accompanied   by Kishansingh  and  Uttam  Giri  had  gone  to  the  house  of Rameshwar  at  about 8 p.m. and hurled abuses gone  him  and others  was not true inasmuch as if five persons armed  with lathis  and  one  with a dagger had  entered  the  house  of

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Rameshwar  and  dragged him outside there  would  have  been marks  of  injury  on Rameshwer who  did  not  get   himself examined.   The High Court relied on the injuries  found  on the  person of the deceased specially 1 the teeth  marks  as going  to show that Shyamlal had tried to free himself  from the  clutches  of  Shyamsingh deceased  and  at  that  stage Sampatsingh,  the appellant, had appeared on the  scene  and finding the deceased siting on the chest of his brother  had tried  to force them apart and when he found that  he  could not do this with bare hands he had taken the Jambia from the waist  of  the deceased and inflicted two injuries  on  him. The,  prosecution  evidence of Ratan Kanwar,  Rameshwar  and other  witnesses  was that the in-. juries to  the  deceased were inflicted while he was standing.  This was not accepted by the Sessions Judge who, as already stated, found that the version given by the accused with regard to the injuries  by the  Jambia  was the correct one.  Accordingly to  the  High Court, however, the circumstances were more consistent  with the  infliction of the injury while the deceased  Shyamsingh was: Sup. I./69-16 234 standing.   The, High court also commented on the fact  that the Sessions Judge overlooked the statement of Dr. Ojha  who had stated that the injury inflicted in the lumbar region of the deceased was sufficient in the ordinary course of nature to  cause his death.  It may be noted that Dr. Har  Govind’s evidence  was  somewhat different.  This doctor  had  stated that  though the injuries were not dangerous to  life,  they could  result in  death.  Examining the evidence of the  two doctors, the High Court preferred the view of Dr. Ojha  that the injury on the lumbar region of the death was  sufficient in the ordinary course of nature to cause death. Ultimately, the High Court held that the Sessions Judge  had not     rejected  the entire prosecution  evidence  but  had considered the same  along with the explanation  offered  by the  accused in forming his own conclusion.  The High  Court also  pointed out that the Sessions Judge had  not  rejected the  evidence of all the prosecution witnesses on the  point that it was the appellant who had given two blows by  Jambia on the deceased, one on the right thigh and the other on the waist.   The striking of the deceased by the appellant  with Jambia  was   the common case of the  parties.  The  medical evidence showed that one of the wounds was sufficient in the ordinary  course  of  nature to have  caused  the  death  of Shyamsingh.   Shyamlal  the brother of  the  appellant,  was certainly  having the worst of the struggle with  Shyamsingh and  the circumstances certainly justified  the  appellant’s attempt  to  force them apart.. Both courts  held  that  the nature of the attack on Shyamlal by Shyamsingh was not  such as to  have necessitated the infliction of the second injury by the Jambia.  Both courts accepted the appellant’s version that  he was exercising his right of private defence of  the person  of  his  ’brother.  The  High  Court  negatived  the contention  that such right of private defence went  to  the extent  of  causing  the  death  of  the  assailant  by  the appellant.   The High Court did not accept the version  that there   was  an  attempt  on  the  part  of  Shyamsingh   to strangulate Shyamlal giving rise to an apprehension in  the mind of the appellant that grievous hurt or even death might be caused thereby.  The evidence did not disclose any  marks of finger nails or bruises or even blue signs on the neck of Shyamlal who was examined two days after the incident.   The High Court relied on the statement of the. appellant himself before  the  committing court that the deceased  had  caught

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hold of the neck of his brother.  On the evidence, the trial court.  did  not find that the appellant  had  intention  to murder  Shyamsingh but he had exceeded the right of  private defence  of his brother by causing the serious  injuries  to the deceased with the jambia. In  our view, both courts, on the facts, were  justified  in coming to the conclusion that the appellant had exceeded his right of private defence.  Neither court had relied only  on the statement 235 of  the appellant under S. 342 Cr.  P. C. to arrive  at  its finding  There was sufficient other evidence  including  the *jury  report and the testimony of Dr. Ojha to  warrant  the conclusion  that  the  right of private  defence  had been exceeded  and the appellant was rightly convicted  under  s. 304  Part  II  I.P.C.  In Nishi Kant Jha  v.  The  State  of Bihar(1)it was held by this Court that the court may rely on a  portion  of  the statement of the accused  and  find  him guilty  in consideration of the other evidence ’against  him led  by  the prosecution.  In that case, there were  no  eye witnesses  to the commission of the crime and  the  evidence was all circumstantial and the statement of the accused that he  was  present  at the scene of the  crime,  was  a  vital circumstance   which   taken  in  conjunction   with   other circumstances  led the court to come to the conclusion  that he was guilty of the crime imputed to him.  In our view  the decision  in  Narain Singh’s case(2) does not apply  to  the facts before us and we hold that the evidence justified  the conviction  of  the appellant.  The appeal,  is,  therefore, dismissed and the conviction and sentence upheld. G.C.                            Appeal   dismissed. (1)  [1969]2 S.CR. 1033. (2)  [1963] 3S.C.R.678. 236