THAKARDA HAMIRJI GAJUJI v. STATE — 1991 DIGILAW 358 (GUJ)

V. H. BHAIRAVIA, J. ( 1 ) THIS appeal has been preferred by the appellant-accused against the judgment and order dated 31. 12. 1983 passed by the learned Sessions Judge Mehsana in Sessions Case No. 108 whereby the learned Sessions Judge convicted the appellant-accused for the offence punishable under sec. 304 Part-II of the I. P. Code and convicting him to suffer rigorous imprisonment for 4 years. However by the impugned judgment and order the learned Sessions Judge had acquitted appellant accused for the offence punishable under sec. 302 of the I. P. Code. ( 2 ) THE prosecution case in brief is that complainant Kanaji Chelaji is younger brother of deceased Rupaji Chelaji. Both brothers are staying seperately. A day before the day of incident. Rupaji had gone to Patan and returned back at about 5. 00 p. m. with accused Thakarda Hamirji Gaguji. Deceased introduced accused to the complainant. Accused slept in the house of Rupaji on that night. On the day of incident 11. 8. 83 accused and Rupaji had gone to Patan in the S. T. bus at 1. 00 p. m. They reached Patan at 2. 00 p. m. and had gone in the Bazar. It is the case of the prosecution that near Hingalaj Chachar Rupaji demanded money from accused. Thereafter they moved in Bazar. When they reached near Bank of Baroda building. Rupaji again demanded money from the accused. There was some altercation between the two. Rupaji gave a fist blow on the nose of accused and thereupon accused brought out knife from the pocket of his pant and holding the knife with both the hands he gave knife blow on the chest of Rupaji. Rupaji brought that knife out from the chest and tried to inflict blow on the accused and accused suffered injury on the back. Thereafter both of them fell down. Rupaji died on the spot. At that time Hargovan Keshavlal and Vaktuji Pradhanji came there. After some time police came at the place of incident. Complaint was lodged against the accused for the offence punishable under sec. 302 of the I. P. Code. As accused was also injured he was sent to medical treatment in the hospital and thereafter accused came to be arrested on 13. 8. 1983. After some time police came at the place of incident. Complaint was lodged against the accused for the offence punishable under sec. 302 of the I. P. Code. As accused was also injured he was sent to medical treatment in the hospital and thereafter accused came to be arrested on 13. 8. 1983. After completion of investigation a charge-sheet was submitted in the court of the learned Judicial Magistrate (F. C.) Patan for the offence punishable under sec. 302 of the I. P. Code. As the offence is triable by the court of Sessions the learned J. M. F. C. committed the case to the court of Sessions at Patan. Accused came to be tried by the learned Sessions Judge. Accused pleaded not guilty to the charge and claimed to be tried. After considering prosecution evidence the learned Sessions Judge hold the accused guilty for the offence punishable under sec. 304 Part-II of the I. P. Code since according to the learned Sessions Judge there was no intention on the part of the accused to commit murder of the deceased Rupaji. The learned Sessions Judge therefore acquitted the accused of the offence punishable under sec. 302 of the I. P. Code and convicted him for the offence punishable under sec. 304 Part-II of the I. P. Code and sentenced him to suffer rigorous imprisonment for four years. Hence present appeal. "the appellant accused is entitled to the benefit of Section 100 of the I. P. Code be substituted in the said judgment". ( 3 ) MR. K. G. Sheth learned counsel (appointed) for the Appellant-accused vehemently submitted that in view of the medical evidence coupled with the evidence of prosecution witnesses this is a case of private defence and the [decided as per court order at 9. 2. 93] appellant accused is entitled to the benefit of Exception-2 to section 300 of the I. P. Code. Hence his conviction under sec-304 Part-II of the I. P. Code is bad in law and requires to be quashed and set aside and appellant accused requires to be acquitted. Mr. M. A. Bukhari learned Addl. P. P. supported the judgment of the learned Sessions Judge and submitted that the findings and reasonings given by the learned Sessions Judge for convicting the appellant accused for the offence under sec. Mr. M. A. Bukhari learned Addl. P. P. supported the judgment of the learned Sessions Judge and submitted that the findings and reasonings given by the learned Sessions Judge for convicting the appellant accused for the offence under sec. 304 Part-II of the I. P. Code and sentencing him as aforesaid are just legal and supported by the evidence on record. He therefore submitted that the judgment and order of the learned Sessions Judge requires to be upheld. ( 4 ) LEARNED counsel for the appellant-accused took us through the entire evidence on record. We have also perused the judgment of the learned Sessions Judge. The learned counsel took us through the evidence of P. W. 2 Complainant Kanaji Chelaji (Exh. 10) and submitted that accused had sustained injury on the left side of the chest by knife at the hands of the deceased and he further pointed out that according to this witness after receiving injury on the chest deceased himself had taken out knife from the chest and tried to give blows to the accused which has caused injuries to the accused. This version is not probable. Learned counsel also took us through the medical evidence of P. W. 1 Dr. Suryaprasad Shivprasad Raval (Exh. 6 and pointed out from the cross-examination that the injured who receives injuries on the chest like the injuries received by the deceased would become unconscious immediately and would not be in a position to give counter blow to his assailant. The learned counsel has also relied on the statement given by the accused under sec. 113 of the Cr. P. Code and the explanation to question No. 21 We find much force in the submissions of the learned counsel for the appellant. Evidence of P. W. 2 Kanaji is supported by the medical evidence also. However evidence of P. W. 3 Vaktuji Keshavji Thakarda (Exh. 12) and P. W. 4 Hargovanbhai Keshavbhai Raval (Exh. 13) does not support evidence of P. W. 2 Kanaji as they do not admit presence of Kanaji on the spot. P. W. 4 Hargovanbhai (Exh. 13) has deposed that P. W. 2 Kanaji had come at the scene of offence simultaneously with him and P. W. 3 Vaktuji. But we do not give much importance to this infirmity in the evidence. P. W. 4 Hargovanbhai (Exh. 13) has deposed that P. W. 2 Kanaji had come at the scene of offence simultaneously with him and P. W. 3 Vaktuji. But we do not give much importance to this infirmity in the evidence. So far as genesis of the incident is concerned there is clear evidence of P. W. 2 Kanaji-brother of the deceased that deceased Rupaji Chelaji demanded money from the accused and as accused had no sufficient money he refused to oblige deceased by giving money. Thereupon unfortunate incident took place as first deceased had given fist blow on the neck of the accused. "in our view therefore the appellant-accused is entitled to the benefit of clause first and/or secondly or Sec. 100 of the I. P. Code". ( 5 ) THIS is an admitted act. It is quite natural that the P. W. 2 Kanaji would support the prosecution case since his own brother has been killed but if we read medical evidence read with evidence of the witnesses referred above as well as the statement of the accused regarding unfortunate incident opinion given by P. W. 1 Dr. Suryaprasad is more probable that the injured having received injuries on the chest would not be in a position to give counter blow to his assailant immediately. From the medical evidence we are convinced that the deceased Rupaji must have given knife blows first in point of time to the accused and accused must have tried to save his life from the serious injuries which deceased intended to inflict on the accused. We have been left to draw inference whether the accused inflicted knife blows on the chest of the deceased with the same knife which deceased had in his hand or with other knife. From the medical evidence and the explanation given by the accused we find the explanation given by the accused more probable. In our view the accused has acted without premeditation and without any intention of doing more harm than is necessary for the purpose of his self defence and-thereby exercised his right of private defence since the deceased had assaulted on him first in point of time. In our view therefore the appellant-accused is entitled to the benefit of Exception-2 to Sec. 300 of the I. P. Code. In our view therefore the appellant-accused is entitled to the benefit of Exception-2 to Sec. 300 of the I. P. Code. Section : 100 of the Indian Penal Code reads as under : 100 The right of private defence of the body extends under the restrictions mentioned in the last preceding section to the voluntary causing of death or of any other harm to the assailant if the offence which occassions the exercise of the right be of any of the descriptions herein after enumerated namely :- first-Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault : secondly-Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault : thirdly-An assault with the intention of committing rape : fourthly-An assault with the intention of gratifying unnatural lust : fifthly-An assault with the intention of kidnapping or abducting : Sixthly-An assault with the intention of wrongfully confining a person under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release". Considering the medical evidence on record and evidence of the prosecution witnesses in our view the appellant accused had exercised in good faith the right of private defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. He is therefore entitled to the benefit of general exception i. e. sec. 100 of the I. P. Code. In our view therefore the conviction and sentence of the accused under sec. 304 Part-II of the I. P. Code deserves to be quashed and set aside and the appellant is entitled to the benefit of sec. 100 of the I. P. Code and is entitled to be acquitted. Hence present appeal requires to be allowed. Exception 2 to Sec. 300 of the Indian Penal Code reads as under: exception-2 : Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person or property exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence". ( 6 ) CONSIDERING the medical evidence on record and evidence of the prosecution witnesses in our view the appellant accused had exercised in good faith the right of private defence without premeditation and without any intention of doing more harm than is necessary for the purposes of such defence but exceeded the same. He is therefore entitled to the benefit of Exception-2 to sec. 300 of I. P. Code. In our view therefore the conviction and sentence under sec. 304 Part-II of the I. P. Code deserves to be quashed and set aside and appellant is entitled to the benefit of Exception-2 to Sec. 300 of the I. P. Code and is entitled to be acquitted. Hence present appeal requires to be allowed. ( 7 ) APPEAL is allowed. Judgment and order dated 31. 12 passed by the learned Sessions Judge Mehsana in Sessions Case No. 108/83 convicting the appellant-accused for the offence punishable under sec. 304 Part-II of the I. P. Code and sentencing him to suffer rigorous imprisonment for 4 years is hereby quashed and set aside. The appellant-accused is given benefit of Exception-II to Sec. 300 the I. P. Code and is hereby acquitted of the offence for which he is convicted Appellant-accused be set at liberty forthwith if not required to be detained in any other matter. He is on bail his bail bonds stands cancelled. "the appellant-accused is given benefit of general Exception i. e. Section 100 of the I. P. Code". Heard Mr. K. G. Sheth learned counsel for the appellant-accused and Mr. Bukhari learned APP for the State It has been submitted by Mr. Sheth that due to inadvertant mistake it has been held and observed by this court in the Cri. Appeal No. 91/1984 that the accused is entitled to the benefit of Exception : 2 of Sec. 300 of I. P. Code as argued by him. In fact the appellant accused is entitled to the benefit of Exception : 2 of Sec. 100 of the I. P Code and therefore said observations and conclusions require correction Mr. Sheth also submitted that in the judgment Sec. 300 is reproduced but in fact sec. 100 of I. P. Code ought to have been reproduced. He therefore prayed to make necessary correction in the said judgment. Mr. Sheth also submitted that in the judgment Sec. 300 is reproduced but in fact sec. 100 of I. P. Code ought to have been reproduced. He therefore prayed to make necessary correction in the said judgment. Mr. Bukhari learned APP also agrees that there is some bonafide inadvertant mistake and it requires to be rectified Hence following order : ( 8 ) ON page 4 of the said judgment in first para the words the appellant accused is entitled to the benefit or Exception : 2 to Section : 300 of the I. P. Code be deleted and instead the words the appellant accused is entitled to the benefit of Section 100 of the I. P. Code be substituted in the said judgment. ( 9 ) ON page 6 of the said judgment the words In our view therefore the appellant accused is entitled to the benefit of Exception : 2 to Sec. 300 of the I. P. Code be deleted and instead the words In our view therefore the appellant-accused is entitled to the benefit of clause first and/or secondly of Sec. 100 of the I. P. Code be substituted. ( 10 ) ON page 6/7 of the said judgment the words Exception : 2 to Sec. 300 of the Indian Penal Code reads as under : exception : 2 Culpable homicide is not murder. . . . . . . . ( 10 ) ON page 6/7 of the said judgment the words Exception : 2 to Sec. 300 of the Indian Penal Code reads as under : exception : 2 Culpable homicide is not murder. . . . . . . . for the purpose of such defence be deleted and instead following words be substituted : section : 100 of the Indian Penal Code reads as under : 100 The right of private defence of the body extends under the restrictions mentioned in the last preceding section to the voluntary causing of death or of any other harm to the assailant if the offence which occassions the exercise of the right be of any of the descriptions herein after enumerated namely :- first-Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault : secondly-Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; thirdly-An assault with the intention of committing rape; fourthly-An assault with the intention of gratifying unnatural lust; fifthly-An assault with the intention of kidnapping or abducting; sixthly-An assault with the intention of wrongfully confining a person under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. ( 11 ) ON page 7 para beginning from Considering the medical evidence. . . . . Hence present appeal requires to be allowed be deleted and following para may be substituted :"considering the medical evidence on record and evidence of the prosecution witnesses in our view the appellant accused had exercised in good faith the right of private defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence. He is therefore entitled to the benefit of general exception i. e. sec. 100 of the I. P. Code. In our view therefore the conviction and sentence of the accused under sec 304 Part-II of the I. P. Code deserves to be quashed and set aside and the appellant is entitled to the benefit of sec. 100 of the I. P. Code and is entitled to be acquitted. Hence present appeal requires to be allowed". In our view therefore the conviction and sentence of the accused under sec 304 Part-II of the I. P. Code deserves to be quashed and set aside and the appellant is entitled to the benefit of sec. 100 of the I. P. Code and is entitled to be acquitted. Hence present appeal requires to be allowed". ( 12 ) ON page 8 of the said judgment in concluding para the words the appellant-accused is given benefit of Exception : II to Sec. 300 of the I. P. Code be deleted and instead the following words the appellant-accused is given benefit of General Exception i. e. Section 100 of the I. P. Code be substituted. ( 13 ) OFFICE is directed to carry out necessary corrections as stated in this order and send fresh writ of corrected order Judgment and order stands corrected as aforesaid Office is further directed to send corrected copy of the judgment to the Reporter for carrying out necessary corrections in the decision reported in 1992 Cri. L. J. 3966. Appeal Allowed. .