STATE OF GUJARAT v. HIRA BHAGA — 1960 DIGILAW 28 (GUJ)

V. B. RAJU, J. ( 1 ) RAJU J. This judgment will dispose of Criminal Appeal No. 25/60 and Criminal Revision Application No. 8/60 arising out of the same judgment by the learned Sessions Judge Junagadh in Sessions Case No. 10 of 1959 in which four accused Kolis Hira Bhaga Kana Bhaga Govid Bhaga and Meram Jeram were charged under sec. 302 read with sec. 34 of the Indian Penal Code for causing the death of one Bhagwan Bhaya and also under sec. 324 read with sec. 34 of the Indian Penal Code for having caused hurt with dangerous weapons to prosecution witnesses Mava and Bhana. The learned Sessions Judge acquitted all the four accused of the charges under sec. 302 I. P. Code but convicted all of them under sec. 324 I. P. Code and sentenced each of them to imprisonment till the rising of the Court. In regard to the acquittal of the four accused under sec. 302 read with sec. 34 I. P. Code the State has filed an appeal from acquittal. We hold that there are compelling reasons to set aside the order of acquittal that the guilt of accused No. 1 under sec. 302 I. P. Code and of accused Nos. 2 and 3 under sec. 324 I. P. Code is proved beyond the possibility of any reasonable doubt and that the learned Sessions Judge should not have acquitted accused Nos. 1 2 and 3. ( 2 ) THE learned Sessions Judge held that Bhagwan was murdered on 4-1-59 at 10-30 a. m. near the Chora that it was accused Nos. 1 2 3 and 4 who had caused injuries to Bhagwan near the Chora that at that time accused No. 1 was armed with a spear and a dagger accused No. 3 Govind had a hatchets accused No. 4 was armed with an iron-shod stick and the accused No. 2 took up the sword of the deceased Bhagwan near the Chora. But the learned Judge held that the accused were entitled to the benefit of reasonable doubt. As regards the simple injuries with dangerous weapons caused to Mava Bhana Dhana Kadvi and Moti he held that all the four accused had caused these injuries and that they were guilty under sec. 324 I. P. Code. But the learned Judge held that the accused were entitled to the benefit of reasonable doubt. As regards the simple injuries with dangerous weapons caused to Mava Bhana Dhana Kadvi and Moti he held that all the four accused had caused these injuries and that they were guilty under sec. 324 I. P. Code. In his judgment after discussing the evidence of 16 alleged eye-witnesses of whom 13 were eye-witnesses to the incident at the Panchayat Office and 3 to the incident at the Chora the learned Sessions Judge observed that at the Panchayat Office it was crystal clear that accused Kana opened the attack on Bhagwan and that at the Panchayat Office Bhagwan stabbed Kana with a dagger but was followed and pursed by accused No. 1 Hira who was armed with a spear and a dagger and accused No. 3 Govind who was armed with a hatchet. The learned Sessions Judge also observed that it is crystal clear that at the Chora there was a fight between Bhagwan on the one side and the four accused on the other in the course of which Bhagwan could inflict the sword injuries on the three accused before he fell down. He fell down because a spear injury was inflicted on him by Hira accused No. 1. As he fell down naturally his sword and dagger fell down which Kana accused No. 2 picked up. In the opinion of the learned Sessions Judge the case before him was one where if any one had the right of private defense it was Bhagwan the deceased. The learned Sessions Judge also rejected the defense theory that at the Panchayat Office it was Bhagwan who had attacked Kana. According to the learned Sessions Judge it was accused No. 2 and No. 4 who started attack on Bhagwan at the Panchayat Office. The learned Sessions Judge further observed that the right of private defense set up by the accused is not proved. However the learned Sessions Judge relied on the observations in Sebastian David and another vs. Sirkar Prosecutor A. I. R. 1950 Travancore-Cochin P. 9 and following this ruling he observed that as the eye-witnesses had suppressed the simple and obvious fact that it was the deceased Bhagwan who had caused injuries to the three accused the possibility that the accused were acting in the right of private defense cannot be denied. The learned Judge then proceeded to observe that he felt reasonably certain that in fact it was a case of mutual free determined fight between the rival factions. The learned Sessions Judge therefore thought that the accused were entitled to the benefit of reasonable doubt and that it is possible and likely that they were acting in the right of private defense as it was Bhagwan who had attacked the accused. ( 3 ) BOTH the findings of the learned Sessions Judge and the reasons given by him for such findings are inconsistent and illogical. He has held that Bhagwan was murdered on 14-1-59 at 10-30 a. m. near the Chora and that it was accused Nos. 1 2 3 and 4 who had caused the injuries to Bhagwan near the Chora. After this finding the only questions left to be determined were whether the accused had acted in the right of private defense and whether they exceeded the right of private defense. Having held that it was the four accused who caused the injuries to Bhagwan and thereby caused the death of Bhagwan the learned Sessions Judge did not proceed to frame the point for determination whether the accused had acted in the right of private defense and whether the right had been exceeded. It is true that this question has been discussed at length in the judgment. It is also difficult to understand his finding that the accused were entitled to the benefit of reasonable doubt in view of his earlier finding that it was the four accused who had caused injuries to Bhagwan near the Chora. The learned Sessions Judge had no doubt as to whether the accused had caused the injuries or not but his doubt appears to be on the point whether they were acting in the right of private defense. In his judgment the learned Sessions Judge has not considered the question whether the accused or any of them had exceeded the right of private defense and further at several places in his judgment the learned Sessions Judge has clearly stated that the right of private defense is not proved. However the learned Sessions Judge has held that the accused are entitled to the benefit of reasonable doubt as it is possible and likely that they were acting in the right of private defense. However the learned Sessions Judge has held that the accused are entitled to the benefit of reasonable doubt as it is possible and likely that they were acting in the right of private defense. ( 4 ) AFTER holding that it was the accused who caused injuries to Bhagwan the learned Sessions Judge thought that they were entitled to the benefit of reasonable doubt on the question of private defense because the alleged eye-witnesses had not given any plausible explanation as to the injuries on the accused. In the opinion of the learned Sessions Judge as the alleged eye-witnesses had suppressed the fact that the three of the accused had received injuries the possibility that the accused were acting in the right of private defense cannot be excluded. For coming to this conclusion the learned Sessions Judge relied on the decision in Sebastian David and another vs. Sirkar Prosecutor A. I. R. 1950 Travancore-Cochin P. 9 and in particular the following observations in that case:--"where there are injuries on both sides (the accused and the complainant) the prosecution must cogently explain how the accused sustained injuries. Without such explanation the prosecution evidence will not be complete and no court will be prepared to act on evidence which leaves a lacuna. " ( 5 ) THE learned Judges of the Travancore-Cochin High Court also observed as follows:-"this is not a case where the accused admits having caused the injuries on the complainant and pleads self-defense. The plea of self-defense is raised only in the argument of the counsel. A prosecution which cannot explain the injuries on the accused is not in the circumstances of the case entitled to succeed. " ( 6 ) WITH great respect it is difficult to agree with the proposition that when there are injuries on both the sides it is the duty of the prosecution to cogently explain how the accused sustained injuries. A prosecution which cannot explain the injuries on the accused is not in the circumstances of the case entitled to succeed. " ( 6 ) WITH great respect it is difficult to agree with the proposition that when there are injuries on both the sides it is the duty of the prosecution to cogently explain how the accused sustained injuries. In a criminal case if the prosecution adduces reliable evidence for proving all the ingredients of the charges against the accused persons the prosecution is entitled to succeed unless the accused relied on any general or special explanation in which case the burden is on the accused to prove the exception in a case where the accused is said to have attacked the complainant or members of the complainants party it is sufficient for the prosecution to prove that the accused had attacked the members of the complaints party with the requisite intention. In the chief examination of the prosecution witnesses it is not necessary for the prosecution to put question to the prosecution witnesses as regards matters which are not included in the ingredients of the charge against the accused. Of course the prosecution must be fair and if there are any circumstances tending to show that the accused may have acted in the exercise of private defense the prosecution must place such circumstances before the Court. If the accused had sustained injuries the prosecution must place the fact that the accused had injuries before the Court but it is not necessary for the prosecution to cogently explain how the accused sustained injuries. The prosecution must prove the alleged criminal acts of the accused and the alleged criminal intention. But it is not necessary for the prosecution to cogently explain a fact which is not one of the ingredients of the offence charged against the accused. In the instant case as in the Travancore-Cochin case the fact that injuries had been sustained by the accused has been proved by the prosecution evidence. In the instant case the learned Sessions Judge did not accept the answers given by prosecution witnesses explaining how accused had sustained injuries. In fact the learned Sessions Judge held that the injuries on the accused must have been caused by deceased Bhagwan. In the instant case the learned Sessions Judge did not accept the answers given by prosecution witnesses explaining how accused had sustained injuries. In fact the learned Sessions Judge held that the injuries on the accused must have been caused by deceased Bhagwan. Even on such a basis the prosecution may by entitled to succeed if it is satisfactorily proves the alleged criminal acts and criminal intention on the part of the accused and if the alleged right of private defense is not proved. But of course it is open to the defense to put questions to the prosecution witnesses in cross-examination to show that injuries on the accused had been inflicted by the complainants party. It is open to the defense to put questions to the prosecution witnesses in order to show that their evidence is not entitled to credit. It is open to the defense to show that the prosecution witnesses have given false or unsatisfactory answers to the questions put to them in the cross-examination in order to discredit the testimony of the prosecution witnesses. ( 7 ) MR. Sompura Assistant Government Pleader for the State has relied on Jumman and others vs. State of Punjab A. I. R. 1957 Supreme Court P. 469 wherein Their Lordships observed that they believed the evidence of the prosecution witnesses P. Ws. 19 and 21 but Their Lordships did not think that their suppression of the injuries on Jumman and Darshu could make their evidence totally unbelievable. It is open to a Court to believe the evidence of a witness either in whole or in part and as Their Lordships of the Supreme Court have held the fact that some of the prosecution witnesses have suppressed or have given futile explanation as to the injuries of the accused would not necessarily make their answers totally unbelievable. It is open to a Court to believe the evidence of a witness either in whole or in part and as Their Lordships of the Supreme Court have held the fact that some of the prosecution witnesses have suppressed or have given futile explanation as to the injuries of the accused would not necessarily make their answers totally unbelievable. It is therefore difficult to agree with the view taken by the Travancore-Cochin High Court that in all cases where the prosecution have not given a satisfactory explanation of the injuries on the accused persons the evidence of the prosecution witnesses must be totally rejected and that the prosecution witnesses had given false or unsatisfactory explanation is a factor to be considered in the appreciation of the evidence of the prosecution witnesses and no general rule can be laid down in such cases that merely because some of the prosecution witnesses have not satisfactorily explained the injuries on the accused in all cases their evidence must be rejected and the prosecution must totally fail. In the instant case the two main prosecution witnesses namely Bhana and Mava are the brothers of the deceased and merely because they have tried to minimize the part played by the deceased in the occurrence their evidence should not be rejected particularly because their evidence is corroborated by the fact that injuries were found on both the witnesses and three of the accused persons. Accused No. 1 Hira in his examination stated that he had taken the dagger of the deceased Bhagwan who was attacking him with a sword. In order to save his own life accused No. 1 gave two blows to Bhagwan without an intention of killing him. The learned Judge has held in favour of the accused that deceased Bhagwan must have caused injuries to the accused. It is clear from the evidence that Bhagwan who was going to the Chora was pursued by the accused who were armed with deadly weapons and apprehending danger Bhagwan may have caused injuries to the accused or it may be that Bhagwan caused injuries to the accused after the latter started attacking him and in order to defend himself from the attack by the accused with dangerous weapons. But whatever be the circumstances in which Bhagwan caused injuries to the accused it is satisfactorily proved by the evidence as held by the learned Sessions Judge that the three accused had attacked Bhagwan near the Chora. In these circumstances notwithstanding the fact that the two main witnesses have not given a satisfactory explanation as to the injuries caused to the accused we believe their evidence in so far as they implicate accused Nos. 1 2 and 3 as having attacked Bhagwan. ( 8 ) THE learned Sessions Judge felt reasonably certain that in fact this is a case of mutual free determined fight between the rival factions. If that was his view he should not have acquitted the accused because in free fight where both parties intend to attack each other there would be no right of private defense. It was also contended by the learned counsel for the respondents that this case would fall within Exception 4 to sec. 300 Indian Penal Code which reads as follows:--"culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner. " ( 9 ) IF some persons deliberately go to another with the intention of attacking him that can never be a case of free fight or sudden fight. That would be a case where the latter would be entitled to the right of private defense in order to ward off the attack on him by the former. If two persons gather together at a place and some dispute suddenly arises as a result of which the parties attack each other or one person attack another that would be a case of sudden fight. In the instant case on the evidence of the two main prosecution witnesses which we have believed Bhagwan was going to Visavadar village and on the way he passed the Chora but he was followed and pursued by the accused who attacked him brutally. The deceased and the accused were inveterate enemies. The mere fact that the accused were following him with dangerous weapons would justify Bhagwan in attacking them. It is not necessary that he should wait until he himself is attacked. The deceased and the accused were inveterate enemies. The mere fact that the accused were following him with dangerous weapons would justify Bhagwan in attacking them. It is not necessary that he should wait until he himself is attacked. He was armed with a sword and when he saw that the accused armed with spear hatchet and iron shod stick were pursuing him he was entitled to reasonably apprehend grievous hurt to himself and he would be entitled to attack the accused even before he himself was attacked. There is however no evidence as to whether the accused first attacked Bhagwan or whether Bhagwan attacked the accused first. If the accused attacked Bhagwan first the latter was of course entitled to defend himself and to cause injuries to the accused which were necessary for the purpose of his defense. But the question is whether the acts of the accused amount to an offence. It was not a case of a sudden fight but a case of accused persons pursuing Bhagwan at the Chora and there attacking him. We therefore reject the contention of the learned counsel for the respondents that the accused are entitled to the benefit of Exception 4 to sec. 300 Indian Penal Code. ( 10 ) WE set aside the acquittal of accused No. 1 convict him under sec. 302 Indian Penal Code for having caused the murder of Bhagwan and sentence him imprisonment for life. We set aside the acquittal of accused No. 2 and 3 and convict them under sec. 324 Indian Penal Code for having caused injuries with dangerous weapons to Bhagwan and sentence each of them to rigorous imprisonment for eighteen months in view of the fact that they were already under-trial prisoners for nearly nine months. Acquittal set aside sentence enhanced. .