07 May 1996
Supreme Court







DATE OF JUDGMENT:       07/05/1996


CITATION:  JT 1996 (6)     9        1996 SCALE  (4)255



JUDGMENT:                          O R D E R      The three  respondents herein  alongwith one Hari Singh (accused) were  put up  for trial  for  committing  culpable homicide  not   amounting  to  murder  of  Babu  Ram  (since deceased), an  offence punishable  under section  304 of the Indian Penal  Code. The  Second Addl.  District and Sessions Judge, Etawah,  vide judgment  and order  dated 29-5-1978 in Sessions  Trial   No.  199   of  1976  convicted  the  first respondent/accused Zalim  under section  304 Part  I of  the Indian Penal  Code and  sentenced  him  to  suffer  rigorous imprisonment for ten years. Partap the second respondent was convicted under  section 304 Part I read with section 34 IPC and sentenced  him to suffer rigorous imprisonment for seven years. Pyare  the third  respondent was also convicted under section 304  Part I  read with  section 34 IPC and sentenced him to  suffer rigorous  imprisonment for  five  years.  The learned IInd  Addl. District  and Sessions  Judge,  however, gave benefit of doubt to Hari Singh and acquitted him of the said charge. The respondents being aggrieved by the order of conviction and  sentence preferred  an appeal  to  the  High Court of Judicature at Allahabad and the High Court vide its judgment and  order dated 6-4-1983 allowed the appeal of the respondents and acquitted them of the said charge. The State of U.P.  has filed  this appeal challenging the legality and correctness of  the order  of acquittal  passed by  the High Court. 2. Briefly stated the prosecution case is as under:-      On 9-5-1976 at about 1.00 p.m., a Panchayat was held in the Varandah of one Ram Das Chowdhary to resolve the dispute as regards  a  kotha  situated  at  village  Bakewar  Distt. Etawah. Ram  Sarup  son  of  Munni  Lal  claimed  to  be  in possession of the said kotha but however, he complained that respondent-Partap Singh  and others took forcible possession thereof some  five to six days prior to the date of incident which took  place on  9-5-1976. The Panchayat deliberated on the issue and suggested that possession of kotha be returned



to Ram Sarup to which Partap the second respondent (accused) and his supporters did not agree.      Babu Ram  (deceased)  was  also  present  at  the  said Panchayat. It is alleged that a heated discussion lasted for about two  or two and half hours but no final decision could be arrived at as regards the said kotha. Babu Ram (deceased) in the  said Panchayat  told Partap  (accused) that he owned 1/3rd share  in the  grove which  is in  possession  of  the respondents (accused)  and they are continuing in possession "dishonestly." Partap  (accused) thereafter retorted to Babu Ram (deceased)  that if has got power, he could take it back through court.  Babu Ram  then replied  "if this  is so,  he would get  his share  just then  and there only." This wordy quarrel led  to the  exchange  of  abuses  between  the  two parties and  thereupon Babu  Ram abused  by saying  that the dishonest persons  would suffer  from the disease of "warm." Being felt  insulted by  this  abusive  words,  Partap  also hurled abuses  to Babu Ram and his supporters. It is alleged by the  prosecution that Babu Ram (deceased) thereafter took off the  shoe from  his left  leg and  snowed it  to Partap, Pyare and  Hari Singh the acquitted accused. The respondents felt insulted  by the conduct of Babu Ram and thereafter the respondents alongwith Hari Singh rushed at Babu Ram. Partap, Pyare and  Hari Singh  (accused) caught hold of Babu Ram and took him  in the  middle of the road. Chheda Lal son of Babu Ram and  others thereafter  intervened and tried to separate them but,  however, Partap  (accused) asked Zalim (accused), the first respondent to cut off the left hand of Babu Ram by which he  was holding  the shoe.  Zalim Singh (accused) took out the  knife from his pant pocket and tried to give a blow on the left hand of deceased, however, the said blow fell on the left  side of  the chest,  Because of  this injury  on a vital part, Babu Ram (deceased) collapsed on the ground. The respondents and the acquitted accused thereafter fled away.      Chheda Lal  (PW1) lodged the F.I.R. on the same evening at about  9.30  p.m.  The  investigating  officer  alongwith police party reached the place of incident and commenced the investigation.  After  completing  the  investigation,  four accused came  to be charge sheeted for an offence punishable under section 304/34 IPC. 3. The  respondents (accused)  denied the charge and claimed to be  tried. They  admit their  presence but, however, they pleaded  a  right  of  private  defence.  According  to  the respondents, Babu  Ram (deceased)  was holding a shoe in his left hand  which caused  reasonable  apprehension  in  their minds as  regards danger  to their  lives, and therefore, in exercise  of  their  right  of  private  defence  they  were justified in their action. 4. The prosecution in support of its case examined three eye witnesses, namely,  Chheda Lal  (PW 1), Munni Lal (PW 2) and Gangeshwar Dayal  (PW 3).  The respondents  in their defence did not lead any evidence. 5. The  courts below  concurrently held that the prosecution has proved  the incident  in question.  There is  no serious challenge to  this finding.  The only  question,  therefore, that needs  to be  considered in  this appeal  filed by  the State of U.P. is as to whether the respondents justify their act of  causing grievous  injury to  Babu Ram  (deceased) in exercise of right of private defence. 6.   It is  not disputed  that Babu Ram (since deceased) who was admitted to Sadar Hospital, Etawah, on 10-5-1976 at 3.50 p.m., succumbed  to his injuries. Dr. C.Prakash who held the post mortem  examination on the dead body of Babu Ram, noted the following injuries:-      "Incised wound  4.5" x  1" x cavity



    deep on  the left  chests laterally      and  directions   from   front   to      backwards, 4.5"  below left  nipple      and  also   lateral   to   it   and      obliquely. Margins  clean  cut.  On      expioration  sub-cutaneous  tissue,      muscles soft  tissue,  vessels  and      adjacent left  sides  pleura  found      cut  penetrating   into  left  side      being in  an area  3.5" x 3/4" from      its   anterior    surface   towards      posterior surface. Left sides chest      cavity containa  8 ozs  of  clotted      blooe." Dr. C.Prakash  opined that  the above noted injuries on Babu Ram (deceased) were ante mortem and he died due to shock and haemorrhage. 7. Both the courts below on appraisal of materials on record have concurrently  held that  Babu Ram  (deceased) sustained the above  bodily injury  which was  grievous in  nature and which has  resulted into  his death.  We see  no  reason  to differ from the said finding. 8. We  are conscious  of the fact that we are dealing with a judgment of  acquittal recorded  by the  High Court. We have carefully gone  through the judgments of the Courts below as well as  the evidence  on record  and  in  our  opinion  the impugned judgment  of acquittal  recorded by  the High Court cannot be sustained. 9.  The  Trial  Court  has  very  succinctly  discussed  the evidence relating to what happened at the Panchayat meeting. During heated  discussion, Babu  Ram (deceased) took off his shoe and aimed it towards Partap (accused). Pyare, Zalim and Partap (accused)  then dragged Babu Ram in the middle of the road from  the Verandah  where  Panchayat  proceedings  were going  on   and  thereafter  Partap  (accused)  asked  Zalim (accused) to  cut off  the hand  of Babu Ram by which he was holding the  shoe. Zalim  (accused) then  took out the knife from his pant pocket and tried to hit on the left hand. Babu Ram (deceased)  while warding  of the  said blow, it fell on his left side of the chest. Babu Ram thereafter fell down on the ground. The Trial Court held:      "Now could  it  be  contended  that      that mere  holding of  shoe by  the      deceased at Partap in the course of      that   heated   altercation   would      provoke a  prudent human  being  in      having  him   caught  hold   of  by      accused Zalim  and Pyare  and  that      ogging (sic)  on Zalim  to  deal  a      knife blow to cut off the limb that      held the  shoe  knowing  full  well      that if  the knife  wont amiss  the      target or the victim, who was not a      statue standing moved it would lend      on his vital organ and might result      in  his  instant  death?  Certainly      not. Accused  Pratap did  not  fear      death from the mere holding of shoe      by the  deceased. No  prudent human      being would fear grievous injury to      him or  his fellow  beings by  mere      show of  shoe.  In  the  facts  and      circumstances  of   the  case   the      action of accused Pratap in calling      upon his  nephew accused  Zalim  to



    make short  work  of  the  deceased      Babu Ram’s  left hand, could not be      within  the   periphery   of   self      defence. The  accused exceeded  the      limit of  right of private defence,      and   could   not,   as   such   be      exponerated of  the change  u/s 304      I.P.C." The High Court, however, did not agree with this finding and it held  that the  accused had  right of private defence and they have  not exceeded  the same.  The High Court after re- appreciating the  evidence of  the  eye  witnesses  held  as under:-      "It therefore  becomes clear beyond      doubt that it was deceased Babu Ram      himself who  was aggressive, and in      these  circumstances   a  right  of      private defence  of person  accrues      to the appellant’s side.           The next question which arises      is as  to what extent this right of      private defence  can be  exercised,      under section  102  of  the  Indian      Penal  Code.   Right   of   private      defence of person commences as soon      as  a  reasonable  apprehension  of      danger to  the body  arises from an      attempt  to   commit  the   offence      though the  offence  may  not  have      been committed, and it continues as      long as such apprehension of danger      to the body continues. In this case      as has  some in  evidence  deceased      Babu Ram  arrived (sic) the shoe at      the head  of the  appellant  Pratap      with the  intention of beating him.      Hence, the right of defence accrued      at  that   very   moment   when   a      reasonable apprehension  of  danger      to the  body arose,  and this right      would  continue   as  long  as  the      apprehension of  danger to the body      continued.  It   has  not  come  in      evidence that this apprehension had      ended by  the time  appellant Zalim      made  the  assault.  On  the  other      hand, as has come in evidence, just      after the  apprehension arose,  the      entire incident  occurred within  a      short time which has been stated by      the witnesses to be one minute." The High Court thus held that the appellants did not exceed  the  right  of  private  defence  of  person.  While justifying the  act of  the  respondents/accused,  the  High Court then observed:      "According to him, the deceased was      making on  a result  (sic)  on  the      upper  part  of  the  body  of  the      appellant Pratap,  with the  result      that there  had arisen a reasonably      (sic) apprehension that if the shoe      hit those  parts of  the face, such      as eye  or teeth, grievous hurt was      to have been caused" 10.  Mr. Anis  Ahmad Khan, learned counsel for the appellant



in support  of  this  appeal  assailed  that  the  aforesaid findings of  the High Court being perverse and unsustainable in law. He drew our attention to sections 100 and 102 I.P.C. and urged that the act committed by the respondents does not fall in  any of these provisions and, therefore, they had no right of  private defence.  He urged that no prudent man can expect a  bodily injury  by a shoe beating to such an extent that it  would endanger  the life.  The facts of the present case do not justify the assault by a sharp edged weapon like knife. He,  therefore, urged  that the order of acquittal is unsustainable and consequently it be set aside and the order of conviction and sentence passed by the learned trial court be restored. 11. Mr.  Sanjeev Dubey,  learned counsel  appearing for  the respondents vehemently  urged that  the  impugned  order  of acquittal does  not call for any interference. He urged that the view  taken by  the High  Court is also equally probable and  reasonable  view  ands  therefore,  if  two  views  are possible the  one which  is in  favour  of  the  accused  if accepted by  the High Court, no interference in the order of acquittal is called for. 12. After  hearing counsel  for the  parties and after going through the  evidence on  record, we are of the opinion that the High Court has committed an error in law in holding that the  respondents/accused  had  not  exceeded  the  right  of private defence. On the facts of this case, we are unable to sustain this  finding. It  is difficult to believe that Babu Ram who was holding a shoe in his left hand assuming that he was to  hit any  of the accused or Pratap, should it cause a reasonable apprehension  in  the  mind  of  the  respondents (accused) that  there would  be danger to their lives and in exercise of right of private defence, caused such a grievous hurt with  the  sharp  edged  weapon  namely  the  knife  in exercise of  the said  right. The evidence on record clearly shows that  the respondents  caught hold of Babu Ram dragged him to  the middle  of the  road and  thereafter a  call was given by  Pratap to  Zalim Singh  to cut  off the left hand. Zalim Singh (accuced) took out the knife from his pocket and gave a  blow with  the said  knife on  the left  side of the chest of  Babu Ram. The description of the injuries given by Dr. C.Prakash  clearly indicates  the force  with which  the blow was  given to Babu Ram. Partap and Pyare (accused) were holding Babu  Ram  in  the  middle  of  the  road  and  that facilitated Zalim  to give  a blow with the Knife on him. In the facts  and circumstances  of the case, the action of the respondents could  not fall within the periphery of right of private defence  and assuming  that  they  had  a  right  of private defence, they had exceeded the same. 13. For  the reasons  recorded above, we are unable to agree with the  order of  acquittal passed  by the High Court. The impugned judgment  and order  of  acquittal  dated  6-4-1983 passed by  the High  Court is set aside and the judgment and order of  conviction and  sentence passed by the trial court on 29-5-1978  is restored. The respondents, who are on bail, are directed  to surrender  to their  bailbonds forthwith to serve out  the  remainder  of  their  respective  sentences. Appeal is allowed.