http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

PETITIONER: STATE OF GUJARAT

       Vs.

RESPONDENT: BAI FATIMA & ANR.

DATE OF JUDGMENT19/03/1975

BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. ALAGIRISWAMI, A.

CITATION:  1975 AIR 1478            1975 SCR  (3) 933  1975 SCC  (2)   7  CITATOR INFO :  F          1975 SC1674  (19,20)  R          1975 SC1703  (6,9)  R          1976 SC2263  (11)  RF         1977 SC2226  (5)  RF         1988 SC 863  (17)

ACT: Evidence--Appreciation  of--Right  of  private  defence--How established.

HEADNOTE: Respondents  Nos.   1 and 2 were mother and  daughter.   The deceased  was  the brother-in-law of respondent No.  1.  For some  days before the date of the Occurrence, the  relations between the two families were none too cordial.  On the clay of   the  occurrence  there  was  a  scuffle   between   the respondents  and  the deceased.  A little  later,  when  the deceased  was sitting in the house of his  father-in-law  in the opposite row of houses, respondent No. 1 was alleged  to have  gone to the deceased with a stick to beat  him.   Some neighbours intervened and tried to pacify both the  parties. When  the deceased was going out, respondent No. 1  put  her leg across the legs of the deceased, as a result of which he fell down on his back.  Respondent No. 2 immediately  caught hold of both the hands of the deceased and respondent No.  1 is  stated to have squeezed his testicles and  pulled  them. Eventually the deceased succumbed to the injury.  After  the incident  respondent  No. 1 lodged a  complaint  before  the police   stating  that  the  deceased,  his  wife  and   his mother-in-law  caught  hold of her and gave  her  blows  and kicks with a stick as a result of Which she fell down. Holding   that  the  prosecution  case  was  proved   beyond reasonable  doubt, the Sessions Judge  convicted  respondent No.  1  under  S. 304, Part-I I.P.C. Respondent  No.  2  was convicted  under s. 323 read with s. 144, I.P.C. On  appeal, the  High Court, even after believing the main part  of  the occurrence,  acquitted  respondent  No.  1  of  the  charges levelled against her and consequently respondent No. 2  also on the ground that she must have done so in exercise of  her right of private defence inasmuch as she must have  squeezed the  testicles of the deceased when be was  showering  blows with a stick on her in order to protect herself.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

Allowing the appeal of the State. HELD  :  (1)  The trial Court was  right  in  believing  the evidence of the proSecution witnesses in regard to both  the incidents and the occurrence in question forming part of the second  incident.  The High Court differed from the view  of the trial judge on flimsy and unsustainable grounds. [998 D- E] (2) There was absolutely no basis or material on the  record to enable the High Court to record an order of acquittal  in favour  of  the  respondents by extending them  a  right  of private defence.  Even going to the maximum extent in favour of the respondents that respondent No. 1 got the blows  with a  stick  at  the hands of the deceased and  in  the  second incident  it is manifest that her action of assault  on  him was  a  deliberate counterattack to cause  him  such  injury which  at  least  was  likely  to  cause  his  death.    The counterattack could in no sense be an attack in exercise  of the right of private defence. [100 F-G] (3)  Neither in her complaint before the police nor  in  the statement  under  s.342  Cr.  P.C. Was there  a  whisper  by respondent  No. 1 of her having squeezed the  testicles  and private  parts of the deceased in exercise of her  right  of private  defence.  Not only was the plea of private  defence not  taken by the respondents in their statements  under  s. 342,  Cr.   P.C. but no basis for the plea was laid  in  the cross-examination   of  the  prosecution  witnesses  or   by adducing  any defence evidence.  The burden of  establishing that  plea was not discharged in any way by the  respondents even applying the test of preponderance of probabilities  in favour of that plea.  There is absolutely no material on the record to lead to any such conclusion. [999 G-H] Munhi  Ram  and  Others v. Delhi  Adtministration  [19681  2 S.C.R. 455, followed. 994

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 67  of 1971. Appeal by special leave from the judgment & Order dated  the 17th  July, 1970 of the Gujarat High Court in Crl.  A.  Nos. 287 and 128 of 1969. R. H. Dhebar and R. N. Sachthey, for the appellant. A.  S.  Qureshi,  Vinal  Deve and  Kailash  Mehta,  for  the respondents. The Judgment of the Court was delivered by UNTWALIA,  J.-There is a locality known as Nani Malokoad  in the  town  of  Kaloy, District Mehsena,  Gujarat.   In  this locality  is  a  road (lane) running north  to  south.   Bai Fatima,  respondent no. 1 in this appeal filed on  grant  of special  leave  by  the State of Gujarat,  is  the  wife  of Allarakha  Hussemkhan.   He  had  a  younger  brother  named Gulabkhan Husseinkhan.  The victim of the occurrence is  the said Gulabkhan.  Both the brothers had their houses adjacent to  each other in this lane facing east.  The  northern  one was  in occupation of and belonged to the deceased  and  the southern one was of Allarakha.  There are a number of  other houses situated around the houses of the two brothers.   One such  house is of Sardarkhan Muradkhan facing west  abutting the  road,  two houses north of the house of  the  deceased. Jamiyatkhan  is the son of Sardarkhan, father-in-law of  the deceased Gulabkhan. In  the  month of June, 1968 a complaint. was  made  to  the Kalol Municipality by persons of the locality including  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

deceased   and  some  of  the  prosecution  witnesses   that Allarakha, husband of respondent no.1 was discharging  dirty water  of his house towards East which collects on the  road and causes nuisance to the residents of the locality.   That had  caused  friction  between  the  families  of  the   two brothers. On  27.6.1968 according to the prosecution story there  were two incidents in the Angana i.e. space on the road in  front of  the houses of the parties-.one was at 5.30 p.m. and  the other at 6.30 p.m. The, prosecution case is that a  she-goat of  Gulabkhan  strayed in the house of Fatima.   ’She  began giving blows to the goat.  There, were altercations  between the  members  of the families of the,  two  brothers.   Res- pondent  no.2. who is a married daughter of respondent  no.1 and  her  son Liyakat who was 15 years old on  the  date  of occurrence  were also present at the time of  this  quarrel. They  threw  stones  which  hit  P.W.3  Nannubibi,  wife  of deceased  Gulabkhan, one Rahematbibi and P.W.  4  Noorbibi-a neighbourer  and  a close relation of  Nannubibi  Respondent no.1  is said to have come out with a stick from her  house, and went to Gulabkhan to strike him.  One Allarakha Rehman-a close  neighbour  came  there, caught  hold  of  the  stick, quietened  respondent no. 1 and sent her back to  her  house The second part of the story is that Gulabkhan and Nannubibi went and sat in the Angana of 995 Jamiyatkhan  son of Sardarkhan, father-in-law of  Gulabkhan. Respondent  no. 1 about an hour later went with a  stick  in her  hand  and  hurled  a  blow  on  Gulabkhan.    Nannubibi intervened  and  got  the blow on  her  right  hand  finger. Gulabkhan  directed respondent no.1 to go back to her  house by gestures of his hand and he also proceeded and pushed her towards her house.  When Gulabkhan reached the Angana of his house,  respondent no.1 is said to have put her  leg  across his  legs  with the result that he fell down  on  his  back. Respondent  no.2  caught  hold of the  hands  of  Gulabkhan. Respondent  no.1 sat on his legs and squeezed his  testicles and pulled them.  The boy Liyakat is said to have bitten the deceased  on  the left shoulder.  Gulabkhan  thereafter  was made to recline on a cot.  Eventually he. died of the  shock due  to the pressing of his private parts by respondent  no. 1. Information was sent to the Police Station.  A  complaint of  Nannubibi was recorded at about 10.30 p.m.  Liyakat  was sent for trial before the Juvenile Court.  Respondent nos. 1 and 2 were tried by the Sessions Judge, Mehsana. The learned Sessions Judge held the prosecution story to  be proved beyond reasonable doubt in all material  particulars. Finding  that  the injury caused to  Gulabkhan  in  ordinary course  of nature may not be sufficient to cause  his  death but  was likely to cause his death, he convicted  respondent no.1  under section 304 Part-I of the Indian Penal Code  and sentenced her to undergo rigorous imprisonment for 7  years. She was further convicted under section 323 and was given  a concurrent   sentence  for  3  months  under   this   count. Respondent  no.2 was convicted of an offence  under  section 323  read  with  section  114 of  the  Penal  Code  and  was sentenced  to  undergo rigorous imprisonment for  3  months. The  respondents filed an appeal in the Gujarat  High  Court from  the order of conviction recorded against them and  the State  went up in appeal for their conviction under  section 302  of the Penal Code read with section 114 in the case  of respondent  no.2 The State appeal was dismissed by the  High Court  and that of the respondents allowed.  The State  came to  this Court and obtained special leave from the  judgment of  acquittal recorded by the High Court in the  respondents

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

appeal.  The dismissal of the State appeal by the High Court is final. The  three  eye  witnesses  to  the  occurrence  are   P.W.3 Nannubibi,  P.W.4 Noorbibi and P.W.6 Jenatbibi.  The  latter two  are neighbourers and related to Nannubibi.   The  Trial Judge believed their evidence. He also believed the evidence of  P.W.7  Gulamanabi Shermohmad-a close  neighbour  of  the parties  to whom an oral dying declaration is said  to  have been  made by Gulabkhan before his death.  It may be  stated here  that P.W.8 Rasulbhai was sitting in the Bazar at  some distance from the place of occurrence in the evening of  the 27th June, 1968.  He got the information at about 9.45  p.m. about  the  death  of Gulabkhan.  He rushed  to  the  Police Station and merely informed about his death. It  is also necessary to note here that respondent no.1  had received  some  injuries  on her person  in  either  of  the incidents which took place 996 on  the  evening of 27th June, 1968.   Prosecution  did  not explain  the  injuries  on her person but  the  Trial  Judge inferred  that  they  must have been  caused  in  the  first incident which took place at 5.30 p.m. and not in the second which  was  the  subject matter of the  charge  against  the respondents. The High Court has held in favour of the prosecution on  the main  part  of  the occurrence,  namely,  squeezing  of  the testicles of the deceased by respondent no.1 as a result  of which he died.  Yet it has disbelieved the prosecution  case in  regard to some other aspects.  It has not  accepted  the prosecution  story  that  there were two  incidents  in  the evening.  Nor has it accepted the version that shortly after the  first incident Gulabkhan and Nannubibi had gone to  the Angana  of Jamiyatkhan.  The, story of falling down  of  the deceased by the tripping of his legs by respondent no.1  has been  discarded by the High Court.  So also the evidence  of P.W.7 Gulamnabi.  Even after believing the main part of  the occurrence the High Court has exonerated respondent no. 1 of the charges levelled against her and consequently respondent no.2  also  on  the ground that she must  have  done  so  in exercise  of her right of private defence in as much as  she must  have  squeezed testicles of the deceased when  he  was showering  blows with a stick on respondent no.  1 in  order to protect herself. In our opinion there are two many conjectures, surmises  and contradictions  in  the  judgment of the  High  Court.   The respondents bad not examined any witness to give any counter version  of  the  occurrence or to justify  the  assault  on testicles of the deceased which resulted in’ his death.  The High Court has said in its judgment :-               (1)  "There is also no doubt that  since  some               days  prior  to the date of the  incident  the               relations between the deceased and the  family               of accused no.1 were not cordial."               (2)  "There  is no doubt that  a  quarrel  did               arise  on that day" (meaning thereby the  date               of   occurrence  "between  the  deceased   and               accused no. 1 in respect of a goat."               (3)  "It  is very reasonably  clear  that  the               squeezing of the testicles of the deceased was               in all probability the act of accused no.1"               (4)  "There  is  further  no  doubt  that  the               deceased  did die on account of  squeezing  of               his testicles in the evening that day at round               about 8.30 p.m." On  the findings aforesaid if the claim of right or  private

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

defence  put  forward  on  behalf  of  respondent  no.1  was untenable  as  we shall show hereinafter it was  wholly  so, then  it  is  plain that the High Court ought  not  to  have interferred  with  the order of conviction recorded  by  the Trial  Court.   Even in face of the said findings  the  High Court  criticized  the  prosecution  case  as  regards  some details  of the occurrence or the ,incidents and rejected  a good  portion  of it.  We shall briefly show that  the  said rejection by the High Court was wholly unjustified. 997 There  were two incidents according to the prosecution  case which  happened  in the evening at an interval of  about  an hour.  High Court says it was not so and says so without any basis.   The prosecution did not stand to gain  anything  by splitting up the evening incident in two parts.  Even in the First  Information Report, Ext.32 recorded at 10.30 p.m.  in the night the two incidents were separately narrated.  There was  absolutely  no reason for the High Court  to  interfere with the findings of the Trial Court in that regard. The  High Court does not accept the prosecution  story  that deceased  Gulabkhan had gone to the ‘Angana  of  Jamiyatkhan and respondent no. 1 went there as an aggressor with a stick in  her hand.  This story has been discarded on  the  ground that it is not mentioned in the First Information Report nor in  the  statements of the other two  witnesses  before  the police.   We may observe again that the prosecution did  not stand   to  gain  anything  by  unnecessarily   or   falsely introducing the story of Gulabkhan’s going to the Angana  of his  father-in-law.   The main occurrence  happened  in  the Angana  of Gulabkhan.  The places are so very near that  the story of Gulabkhan going to the Angana of his  father-in-law was  not an important one to be remembered by the  witnesses to be recited before the police.  It mattered little whether respondent  no.1 went as an aggressor to the Angana  of  the deceased   or  a  bit  further  North  to  the   Angana   of Jamiyatkhan. High  Court also discarded the story of the tripping of  the legs  of Gulabkhan because it is not mentioned in the  First Information Report.  But then it ought to hive been  noticed that  no such contradiction was to be found in the  evidence of  P.Ws  4 and 6 in Court and their statements  before  the police.  It must, therefore. be presumed that they had given out the tripping story before the police. The  High  Court has not thought it safe to  rely  upon  the evidence  of the three eye witnesses none of whom was  found to be disinterested in the prosecution.  The comment is that Allarakba Rehman and Mansabu who lived in the house opposite to  the deceased have not been examined by the  prosecution. According  to the prosecution, case the said  Allarakha  had merely quietened respondent no. 1 in the first incident  and Mansabu  came  after  the  second  incident  was  over.   In material  particulars  we  find  the  evidence  of  the  eye witnesses  very convincing and natural.  In our opinion  the High  Court  was not justified in thinking that it  was  not safe to rely on their evidence wholly and specially when the main  part  of the occurrence which fastened  the  guilt  on respondent no.1 was not disbelieved. Absence  of  any details in the statement  recorded  at  the police station on the basis of the information given by P.W. 8 Rasulbhai unnecessarilly led the High Court to remark that no  one knew upto 10.00 on as to how Gulabkhan  died.   This contradicts  the earlier findings of the High Court that  he died  as  a  result of the squeezing  of  his  testicles  by respondent no.1 Rasulbhai, according to his evidence did not get the details of the occurrence and so did not give any to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

the police. 998 The  High Court has given 3 or 4 reasons for discarding  the evidence   of  P.W.7  Gulamnabi  to  whom  the  oral   dying declaration is said to have been made by the deceased.   The first  reason  given  by the High Court is  that  when  this witness  went near Gulabkhan the three women who claimed  to have witnessed the occurrence were sitting near him; none of them  related  the  story  to Gulamnabi.   When.  he  put  a question  to Gulabkhan who being in a position to  give  the answer gave it, it was not necessary for him to talk to  the women thereafter.  Gulamnabi was the person who had gone  to call  Dr.  Rao to examine Gulabkhan.  Dr. Rao came  at  8.30 p.m. and declared him to be dead.  It was not necessary  for Gulamnubi to relate the details of the occurrence to Dr. Rao as he himself had not witnessed it Another reason given  for discarding  the evidence of Gulamnabi is with  reference  to the  evidence of Rasulbhai that upto 10.00 p.m. no one  knew the  exact  reason  for  the  death  of  Gulabkhan.   Having accepted the prosecution story about the cause of his  death it  was unnecessary to dilate upon the matter  any  further. The  High  Court  has not disbelieved  the  lodging  of  the complaint before the police on the statement of Nannubibi at 10.00  p.m. The last reason given is the non-examination  of Dr.  Rao by the prosecution.  His evidence was of no use  to it  and  the comment of the High Court  is  not,  therefore, justified. We have unhesitatingly come to the conclusion that the Trial Court was right in believing the evidence of the prosecution witnesses in regard to both the incidents and the occurrence in  question forming part of the second incident.  The  High Court  differed from the view of the Trial Judge  on  flimsy and unsustainable grounds. Now  we come to deal with the question of right  of  private defence.   It is no doubt true that the prosecution did  not explain the injuries on the person of respondent no.1. P.W.5 Dr. S. C. Masalia who had examined the injuries on the  side of  the prosecution also examined’ Fatima,  respondent  no.1 when  she  was sent to him by the police.  Fatima  Bibi  had lodged a complaint before, the police which was; found to be a  non-cognizable offence at about 8.00 p.m.  on  27-6-1968. That is Ext-44.  In this complaint she stated that her young one of the goat had gone in the Angana of Gulabkhan.   Three persons  named’ in the complaint were  Gulabkhan,  Bai-bibi, mother-in-law of Gulabkhan and Nannubibi, his wife.  The two ladies  caught  hold  of her Odhana and began  to  give  her blows. of kicks and fists Gulabkhan gave stick blows on  the right  hand and so she fell down on the ground and began  to shout.  The injuries found on the person of Fatima Bibi were 5  in  number.  Three contusions on the right  forearm,  one contusion  on posteric-parietal part of right side of  scalp and  one contusion on scapular part of right side  of  back. The injuries were all of minor character.  In her  statement under  section 342 of the Code of Criminal  Procedure,  1898 respondent  no.   1 stated almost the same story  and  added that Gulabkhan was drunk while he was abusing her.   Neither in Ext.44 nor in the statement under section 342 there was a whisper  by  by respondent no.1 of her having  squeezed  the testicles  and the private part of Gulabkhan.   Nothing  was stated  to  give  any inkling of  her  having  squeezed  the testicles of Gulabkhan 999 in  exercise of her right of private defence to protect  her from further assault.  Nor was any evidence adduced in Court to   give  any  counter  version  of  the  occurrence.    No

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

foundation  was  laid  to enable the  court  to  acquit  the respondents  granting them a right of private  defence.   It did  require a pure conjecture and imagination to  hold  the respondents  not  guilty by extending to them the  right  of private defence. In  a  situation  like this when the  prosecution  fails  to explain the injuries on the person of an accused,  depending on  the  facts of each case, any of the  three  results  may follow :               (1)   That  the  accused  had  inflicted   the               injuries  on  the members of  the  prosecution               party  in  exercise  of  the  right  of   self               defence.               (2)  It makes the prosecution version  of  the               occurrence doubtful and the charge against the               accused  cannot  be held to have  been  proved               beyond reasonable doubt.               (3) It does not affect the prosecution case at               all. Question is in which category the present case falls ? In Munhi Ram and others v. Delhi Administration(1) Hegde,  J delivering the judgment of this Court has said at page 458               "It is true that appellants in their statement               under section 342 Cr.  P.C. had not taken  the               plea  of private defence, but necessary  basis               for  that  plea had been laid  in  the  cross-               examination  of the prosecution  witnesses  as               well  as by adducing defence evidence.  It  is               well-settled that even if an accused does  not               plead self-defence, it is open to the Court to               consider  such a plea if the same arises  from               the material on record-see In Re-jogali Bhaige               Naiks  and another A.I,R. 1927 Mad.  97.   The               burden  of  establishing that plea is  on  the               accused  and that burden can be discharged  by               showing  preponderance  of  probabilities   in               favour  of  that  plea on  the  basis  of  the               material on record." In the instant case not only the plea of private defence was not  taken  by  the respondents  in  their  statement  under section  342  but  no basis for that plea was  laid  in  the cross-examination of the prosecution witneses or by adducing any  defence  evidence.   In  our  opinion  the  burden   of establishing  that plea was not discharged in any manner  by the  respondents even applying the test of preponderance  of probabilities  in favour of that plea.  There is  absolutely no material in the records of this case to lead to any  such conclusion.  We do not think that the Trial Judge was  right in  assuming  that respondent no. 1 must have  received  the injuries  in  the first incident.  It may well be  that  she received  the  injuries  in  the  second  incident.    Since prosecution did not come forward to show in what manner  she received these (1) [1968] (2) S.C.R. 455. 1000 injuries,  assumption can be made to the farthest extent  in favour of the respondents that respondent no.1 received  the injuries  with a stick, may be at the hands of Gulabkhan  or any  other  person on his side.  But surely  the  assumption could not be stretched to the extent it has been done by the High  Court.  The High Court is not right in saying that  by the tripping of the legs Gulabkhan would have fallen on  his face and not on his back.  A man may fall on back or on face depending upon the side and the angle of the tripping.   The other error committed by the High Court is when it says :,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

             "It  appears  to us to be more  probable  that               while  the quarrel was going on in the  Angana               of   the   deceased  and  the   deceased   was               delivering  blows of stick on the accused  no.               1, she squeezedhis  testicles  in  order   to               liberate herself from his attack. It appears               that she did so while the deceased               was standing and giving blows on her." The  deceased  was wearing a pant and it  is  impossible  to imagine  that the, squeezing of the testicles could be  done by respondent no. 1 to the extent of causing his death  soon after  the  squeezing  when  Gulabkhan  was  in  a  standing position.   In  that position he could have at  once.  moved back and liberated himself.  The extent of squeezing done in this  case was possible only if respondent no.  1 could  sit on  his  legs after he bad fallen down at  his  back.   This lends   further  support  to  the  prosecution  story   that respondent  no.  2  caught his  hands  from  behind  meaning thereby  from  towards the side of his head,  in  the  front being  respondent  no.   1 on his  legs.   In  our  opinion, therefore, there was absolutely no basis or material in  the records  of this case to enable the High Court to record  an order  of  acquittal-  in  favour  of  the  respondents   by extending  them a right of private defence.  Even  going  to the  maximum  in favour of the respondents  that  respondent no.1  got the blows with a stick at the hands  of  Gulabkhan and in the second incident it is manifest that her action of assault  on him was a deliberate counterattack to cause  him such  injury which at least was likely to cause  his  death. The  counter-,attack  could  in no sense  be  an  attack  in exercise of the right of private defence. In  material  particulars  the evidence  of  the  three  eye witnesses  as also the evidence of dying declaration of  the deceased before P.W. Gulamnabi is so convincing and  natural that  no  doubt  creeps  into it  for  the  failure  of  the prosecution  to  explain  the  injuries  on  the  person  of respondent no. 1. The prosecution case is not shaken at  all on that account. 1n our judgment this is a case which  falls in the third category 1001 as enumerated above.  In agreement with the Trial Court,  we hold that the guilt of both the respondents have been proved beyond any reasonable doubt. For  the  reasons stated above, we allow  this  appeal,  set aside  the order of the High Court and restore that  of  the Trial  Court  as against respondent no.  1 as  respects  her convictions  and sentences and as against respondent  no.  2 only in regard to her conviction.  It is no use sending  the young girl back to jail for a few months.  While maintaining her  conviction under section 323/114 of the Penal Code,  we reduce her sentence to the period already undergone. P. B. R.          Appeal allowed. 1002