Shyamsher Biswas v. State — 1976 DIGILAW 378 (CAL)

JUDGMENT Basu, J. This is an appeal against an order of conviction dated the 18th of January, 1969 in S.T. No.1 of January 1969, passed by the Additional Judge, Murshidabad by which the two appellants Shyam Sher Biswas and Naimuddin alias Naimuddin Shaikh were convicted under section 304 Part 11/34 IPC and sentenced to 4 years rigorous imprisonment. 2. The Court is informed that one of the appellants Shyam Sher Biswas had died during the pendency of this appeal. It may be recorded that the appeal has abated so far as the said appellant Shyam Sher Biswas is concerned. 3. It appears that Shyam Sher Biswas, father of other appellant Naimuddin along with 12 others were tried by the learned Additional Sessions Judge. All of them were charged under section 302/149, 148 and 447 I.P.C. Shyam Sher Biswas and Naimuddin were also charged under section 302/34 I.P.C. and two accused Dasu and Dukhu were charged under section 323 I.P.C. The learned Judge convicted Shyam Sher Biswas and Naimuddin of the offence under section 304 Part II/34 I.P.C. but acquitted the accused persons of all the other charges. 4. The prosecution case is that plot no. 309 of Mouza Meghuan in the field of Shyampur belongs to Mithu Shaikh, P.W. 4 who is the sister's husband of accused Shyam Sher Biswas. P.W. 1, Abdul Rashid and one Sajjad Shaikh, since deceased, were the sons of said Michu Shaikh. Though Michu and others were owners of the 16 annas share in the said plot No. 309, half of them was recorded in the name of the accused Shyam Sher Biswas and others in the recent settlement operation. A title suit was filed by Michu's father against accused Shyam Sher Biswas and others regarding that half portion of the plot. The suit was decreed in favour of the plaintiff and confirmed in appeal but a further appeal is pending in the High Court. It appears that on the 22nd of February, 1968 Purushottam Chatterjee, J. passed an interim order in the appeal whereby on the claim of the appellants that they were in possession he directed them to deposit the costs of the courts below within three months upon which possession was to be maintained. The costs were deposited. Thereafter on the 31st of March, 1968 the accused Bhadu, Dukhu, Soraj and Imam were seen ploughing the half of plot no. The costs were deposited. Thereafter on the 31st of March, 1968 the accused Bhadu, Dukhu, Soraj and Imam were seen ploughing the half of plot no. 309 by P.W. 1, Abdul Rashid and his brother Sajjad (since deceased) from their Kholan at some distance. The two brothers went there and protested as to why they were ploughing their lands. Those who were ploughing then raised shouts "you all come. They have come to resist". At that time several accused persons who were hiding at some distance rushed to the spot and surrounded the two brothers. The accused persons was armed with Phala, Fhars and Lathi. P.W. 1, Abdul Rashid also raised alarm when people began to come. The accused Naimuddin dealt a Phala blow near the left shoulder joint of Sajjad who sat down when Shyam Sher Biswas, father of Naimuddin dealt another Phala blow on the lower abdomen of Sajjad. P.W. 1, Abdul Rashid, tried to save his brother when he was assaulted by other accused persons. He fell down. Seeing other men coming the accused persons fled away taking with them the bullocks and cows. Sajjad died on the spot. P.Ws. 2, 3 and others came there. P.W. 1 narrated the incident to them. P.W. 2, Habibur Rahaman who was catching fish in a tank to the south west of the disputed land and others claimed to have seen the assault on Sajjad. The FIR was lodged by P.W. 1, Abdul Rashid at Shyampur where the Officer-in-Charge came in connection with some other duty. The FIR was forwarded to Suti P.S. where the formal FIR was drawn. The 1.0. took up investigation and prepared a sketch map, held an inquest on the body and sent it for post-morteum examination through constable Raghunandan Dobey. He also noticed marks of injuries on P.W. 1 and sent him for treatment to the hospital. He tried to arrest the accused persons but could not find them and prayed for warrant of arrest and proclamation. He sent blood strained articles to the chemical examiner. Dr. S.R. Ghosh, P.W. 5, held post-morteum examination on 1.4.68. 5. It would appear from the evidence of P.W. 5, Dr. S.R. Ghosh who held post-morteum examination that he found two injuries on the body of Sajjad, brought and identified by constable Raghunandan Dobey. He sent blood strained articles to the chemical examiner. Dr. S.R. Ghosh, P.W. 5, held post-morteum examination on 1.4.68. 5. It would appear from the evidence of P.W. 5, Dr. S.R. Ghosh who held post-morteum examination that he found two injuries on the body of Sajjad, brought and identified by constable Raghunandan Dobey. The injuries were (1) one gaping wound about 5" x 1½” on the left side of the anterior surface of the neck just above the medial half of the left clavicle and placed obliquely dividing all the soft structures including division of the external carotid artery and its benules with a perforating injury on the apex of the left lung and (2) one stab wound about 1" on the lower abdomen just below the unbilicus dividing the whole thickness of the anterior abdominal wall through which omentum was protruding. Both the injuries, according to the doctor, may have been caused by sharp weapons such as, 'Phala. The injury no. 1 was fatal. The death was due to shock and haemmarge as a result of injuries noted above which were antecedent and homicidal in nature. There is no doubt, therefore, that the deceased met a violent death as a result of injuries. The next question is who caused this injuries. [His Lordship then proceeded to deal with the evidence and continued as follows :-] . 8. From the evidence noted above, specially from the evidence of P.W.1 corroborated by P. Ws 2 and 3, it is clear that the appellant Naimuddin caused Phala blow on the left side of the neck. The blow is a severe one aimed at a vital part of the body. In this regard we accept the finding of the learned Sessions Judge. 9. We, also, find that some of the accused had received injuries. On the basis of the recent R.S. records and the order of injunction passed by the High Court the learned lower Court was correct in holding that the blows were dealt by the accused while exercising their right of private defence. The learned Judge has held "There can be no reason to doubt that P.W. 1 and his brother had gone there to resist the possession of the accused party and then these two accused killed Sajjad with Phalas". We are inclined to accept this finding of the learned Judge. 10. Mr. The learned Judge has held "There can be no reason to doubt that P.W. 1 and his brother had gone there to resist the possession of the accused party and then these two accused killed Sajjad with Phalas". We are inclined to accept this finding of the learned Judge. 10. Mr. Mukherjee appearing on behalf of the appellants, of course, argued that the prosecution has not adduced sufficient evidence and the onus being on them they have failed to discharge the same. We are unable to accept the validity of the said submission. We hold in agreement with the learned Judge of the lower Court that the prosecution has proved beyond reasonable doubt that the appellant Naimuddin dealt blow on the left shoulder of the deceased, Sajjad. 11. Mr. Mukherjee then argued that since blow dealt by 'Naimuddin was in exercise of right of private defence his client was entitled to complete immunity and he should be acquitted. Since the nature of right of private defence has been discussed at some length at the bar in course of which various cases have been cited it becomes necessary to refer to some of the decisions of the Supreme Court in this regard. 12. Mr. Mukherjee relied on the decision of (1) Mohar Roy v. The State of Bihar, reported in 1969 (1) Supreme Court Journal 1. In that case the trial court as well as the High Court fully ignored the significance of the injuries found on the appellants one of whom sustained as many as 13 injuries and another 14. Doctors evidence showed that injuries could not have been self inflicted" Under the circumstances the court held that the prosecution had a duty to explain all the injuries. But as we note later the Supreme Court in a later case; (2) Gajendra Singh v. The State of U.P., reported in AIR 1975 SC 1703 on the circumstances of that case held that the failure of the prosecution to explain injuries on the person of the accused did not affect the prosecution case. Thus each case will depend on the facts and circumstances of its own but failure to explain injuries by the prosecution certainly is a factor meriting serious consideration by the Court. Mr. Mukherjee then relied on the case of (3) Harideb v. The State, reported in AIR 1976 SC 1489 = 1976 Criminal Law Journal 1176. Thus each case will depend on the facts and circumstances of its own but failure to explain injuries by the prosecution certainly is a factor meriting serious consideration by the Court. Mr. Mukherjee then relied on the case of (3) Harideb v. The State, reported in AIR 1976 SC 1489 = 1976 Criminal Law Journal 1176. In that case the High Court having disbelieved an essential part of the prosecution case on which the other part was dependent held that it would be wrong in upholding the conviction of the appellant but that again is a decision on the facts of that case. Courts from time to time have invoked the metaphor of sifting the grain from the chaff. When the two are inextricably mixed up it is undoubtedly an exercise in futility to try to separate the grain of truth from the chaff of falsehood. If the two are not inseparately mixed up it is the task of the court to separate the grain from the chaff. 13. In the case of (4) Jaideb v. The State of Punjab, reported in AIR 1963 SC 612 the Supreme Court went into this question at some length It recognises that "Section 100 I.P.C. provides, inter alia, that the right of private defence of the body extends under the restrictions mentioned in section 99 to the voluntary causing of death if the offence which occasions the exercise of the right be an assault as may reasonably cause the apprehension that the grievous hurt will otherwise be the consequence of such assault”. 14. "Where (at page 617) an individual citizen or his property is faced with a danger and immediate aid from the State Machinery is not readily available, an individual citizen is entitled to protect himself and his property. That being so, it is a necessary corollary to the doctrine of private defence that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. The exercise of the right of private defence must never be vindictive or malicious". The exercise of the right of private defence must never be vindictive or malicious". Dealing with the question "as to whether more force is used than is necessary or than was justified by the prevailing circumstances, the Supreme Court cautioned that it would be inappropriate to adopt tests of detached objectivity which could be so natural in a court room, for instance, long after the incident has taken place". The force used should not be "weighed in a golden scales". If a person finds that the threat to his person or property is immediate and real he is entitled to exercise his right but he must use force necessary for that purpose and he must stop using the force as soon as the threat has disappeared. The law of private defence does not require that the person assaulted or facing an apprehension of assault must run away for safety. 15. The aforesaid principle laid down by Gajendragatkar, J. still holds good. In the case of (5) G.V.S. Subbrayanam v. The State of A.P. ( AIR 1970 SC 1079 ) it was held on the facts of that case that the conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was held to be justified. The Court held that in a situation like that it was not possible for an average person whose mental excitement could be better imagined than described, to weigh the position in golden scales. The case of (6) Gopal v. The State of Rajasthan, reported is AIR 1972 SC 1838 was cited at the bar. No specific principles were laid down in that case but on the facts of that case the Supreme Court allowed the appeal and held that the injuries which were inflicted by the accused were caused in defence of their person when they had been attacked. The decision of (7) Onkarnath Singh v. The of U.P. (reported in AIR 1974 SC 1550 ) emphasised that right of private defence given by the Penal Code is essentially one of defence or self protection and not a right of reprisal or punishment. The decision of (7) Onkarnath Singh v. The of U.P. (reported in AIR 1974 SC 1550 ) emphasised that right of private defence given by the Penal Code is essentially one of defence or self protection and not a right of reprisal or punishment. It is subject to the restrictions indicated in section 99 which are as important as the right itself. One of them is that the harm inflicted in self defence must be no more than is legitimately necessary for the purpose of defence. Further, "the right is conterminous with the commencement and existence of a reasonable apprehension of danger to body from an attempt or threat to commit the offence. It avails only against a danger, real, present and imminent". It thus restates the principles earlier laid down by the Supreme Court in (4) AIR 1963 SC 612 . The decision in (8) State of U.P. v. Ram Swarup reported in AIR 1974 SC 1570 reiterates the same principle in different words. It states that (paragraph 14) the right of private defence is a right of defence, not of retribution. It is available in face of imminent peril to those who act in good faith and in no case can the right be conceded to a person who stage manages a situation wherein the right can be used as a shield to justify the act of aggression. If a person goes with a gun to kill another, the intended victim is entitled to act in self defence and if he so acts there is no right in the former to kill him in order to prevent him from acting in self defence. While providing for the right of private defence, the Penal Code has surely not devised a mechanism whereby an attack may be provoked as a pretence for killing. Again it says that it is a necessary incident of the right of private defence that the force used must bear a reasonable proportion to the injury to be averted. Undoubtedly person in fear of his life is not expected to modulate his defence step by step or tier by tier. But section 99 provides in terms clear and categorical that the right in no case extends to the inflicting of more harm than is necessary for the purpose of defence. Undoubtedly person in fear of his life is not expected to modulate his defence step by step or tier by tier. But section 99 provides in terms clear and categorical that the right in no case extends to the inflicting of more harm than is necessary for the purpose of defence. The Supreme Court in the case of (9) State of Gujarat v. Bai Fatima (reported in AIR 1975 SC 1478 ) went into the question of plea of self defence and held 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 materials on record. 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 materials on record. In this regard the Court followed an earlier decision; (10) Maniram v. Delhi Administration, reported in AIR 1968 SC 702 . In that case not only the plea of private defence was not taken by the respondent in her statement under 342 but no basis for that plea was laid in the cross-examination of the prosecution witnesses or by adducing any defence evidence. The Supreme Court held that the burden of establishing that plea was not discharged in any manner by the respondent even applying the test of preponderance of probabilities in favour of that plea. 16. When the judgment was about to be delivered Mr. Mukherjee cited another recent case of the Supreme Court, (11) Lakshmi Singh v. The State of Bihar, reported in AIR 1976 S.C. 2263 . 16. When the judgment was about to be delivered Mr. Mukherjee cited another recent case of the Supreme Court, (11) Lakshmi Singh v. The State of Bihar, reported in AIR 1976 S.C. 2263 . In that case the court held that non-explanation of the injuries sustained by the accused is a very important circumstance from which the court can draw inference; (1) that the prosecution has supressed the genesis of the occurrence and has not presented the true version; (2) that the witnesses who have denied the presence of the injuries are lying on a most material point, and therefore, their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable put the same court hastened to add that, as held in the case of (9) State of Gujarat v. Bai Fatima (reported in AIR 1975 S.C. 1478 ) there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. The case of (2) Gajendra Singh v. The State of U.P. (reported in AIR 1975 S.C. 1703 ) followed the case of Bai Fatima referred to above and held, in the circumstances of the case, that failure of the prosecution to explain injuries on the person of the accused did not affect the prosecution case. The principles enunciated in the case of (11) Lakshmi Singh is unexceptionable. But on the facts of this case there is no ambiguity about the genesis and origin of the occurrence. As to the veracity of the witnesses we have already discussed the same. Moreover, the explanation of the defence that the injuries were explained in course of exercising the right of self defence has also been accepted by the court. The injuries sustained by the accused are not very serious. The evidence adduced by the prosecution seems to be reasonably clear and cogent and was found acceptable by the court below. On the whole, the facts in the case of Lakshmi Singh were quite different. 17. The injuries sustained by the accused are not very serious. The evidence adduced by the prosecution seems to be reasonably clear and cogent and was found acceptable by the court below. On the whole, the facts in the case of Lakshmi Singh were quite different. 17. The principles discussed above as to the right of private defence make it clear that although the court will not go into the question of excess by adopting a test of detached objectivity the right of private defence itself is subject to certain basic restrictions, one of which is that the harm inflicted in self-defence must be no more than is legitimately necessary for the purpose of defence. The severe blow inflicted on the deceased in his vital part, in our view, was disproportionate to the injury which was to be averted. In our view, the appellant in this case exceeded the legitimate purpose of the exercise of right of private defence and indulged in excesses. In our view, to concede to the appellant the right to strike in the manner he did, would be to allow him to abuse his right of private defence as a shield to justify a violence which was disproportionate to the apprehended injury that was to be averted. 18. The result is that we uphold the conviction of the appellant, Naimuddin under section 304 part II/34 IPC. The sentence passed by the learned judge also is confirmed. 19. The appeal is dismissed. The appeal has abated so far as Shyam Sher Biswas is concerned. Let the other appellant Naimuddin Biswas surrender to his bail bond. Chanda, J.: I agree.