Yadav v. State of M. P. — 1999 DIGILAW 926 (MP)

JUDGMENT Singh, J. –1. This appeal is directed by the accused against the judgment and order dated 9.1.95 passed by Special Judge, Mandleshwar in special case No. 48/92 whereby the appellant was convicted u/s 302 IPC and sentenced to life imprisonment and to pay fine of Rs. 1,000/- in default of payment of fine, one month's R. I. 2. The prosecution case, in brief, was that the appellant was running a betel-shop on the bus-stand of village Bablai. On 1.11.92 at 5 p.m., the appellant asked the deceased Champalal to make payment of Bidi-Match box which he had taken on credit from his shop. The deceased told him that he did not borrow anything from his shop and he did not owe any money to him. On this, there was quarrel between them. Rameshchand Thakur (PM 5) intervened and took the deceased Champalal to his house. Just thereafter the appellant Yadav came infront of the house of the deceased armed with knife and gave him filthy abuses and asked him to come out of his house. On this, the deceased came out of his house. The appellant at once gave knife-blow to him which landed on his left chest as a result of which blood gushed out and he fell down and died instantaneously. The appellant ran away. Sheru (PW 1) went to P.S. and lodged FIR Ex. P.1 which was recorded by sub-inspector R.S. Savita (P.W. 9). He visited the spot and on 2.11.92, conducted inquest of the dead-body of the deceased u/s 174 Cr. P.C. and prepared inquest report Ex. P.4. He also prepared spot-map Ex. P.2 and seized stained and unstained earth from the place of occurance vide seizure memo Ex. P. 5 and sent the dead-body for autopsy to P.H.C. Maheshwar where Dr. T.S. Tanvar (PW 4) performed post-mortem examination and found the following: One penetrated (stab wound) 2cm x 1cm over chest 1 lateral to sternum in 7th intercostal space, cutting chest wall up to arch of avorta 1/2 cut plural and pericondrial cavity. Dr. Tanwar opined that the cause of death was shock due to internal haemorrhage as result of the injury vide report Ex. P.6. R.S. Savita, I.O. arrested the appellant On 2.11.92 vide arrest memo Ex. P.10. At the instai1ce of the appellant knife was seized from his house vide seizure memo Ex. P. 12. Dr. Tanwar opined that the cause of death was shock due to internal haemorrhage as result of the injury vide report Ex. P.6. R.S. Savita, I.O. arrested the appellant On 2.11.92 vide arrest memo Ex. P.10. At the instai1ce of the appellant knife was seized from his house vide seizure memo Ex. P. 12. He also seized the Clothes of the deceased and sent the seized articles for chemical examination to F S.L. Sagar. After completion of investigation, challan was filed. The appellant pleaded not guilty and false implication and in alternative right of self defence. The learned special Judge convicted and sentenced the appellant as stated above. Hence, this appeal. 3. Shri S.K. Vyas, LC for the appellant, submitted that the learned trial Judge committed error in holding the appellant guilty. He submitted that the deceased himself came out of his house and gave lathi-blow to the father of the appellant and thereafter inflicted lathi-blow to the appellant which caused greivous injury on his hand and under such circumstances the appellant had right of self defence. On the other hand, Shri Desai, GA supported the impugned judgment and contended that the appellant was aggressor, he went armed with knife to the house of the appellant, therefore, he had no right of self defence. 4. We considered the arguments advanced by counsel for both sides and perused the record. 5. The fact of homicidal death of the deceased Champalal has not been disputed before us and rightly so as it is amply proved from the inquest report Ex. P 4 and medical evidence of Dr. T.S. Tanvar (PW. 4) and post-mortem report Ex. P.6 6. Now the question is as to whether the appellant caused the death of the deceased Champalal. It has come in the evidence of sheru (PW 1) and Kishore (PW 3) that some quarrel took place between the deceased and the appellant at bus-stand Chouraha. Ramesh (PW 5) took the deceased to his house and just thereafter the appellant came to the house of the deceased armed with knife and hurled abuses and asked him to come out. Thereupon the deceased came out of his house. They tried to pacify the appellant but he gave knife-blow to the deceased and caused injury on his chest as a result of which blood gushed out of his chest, he fell down on the ground and died. Thereupon the deceased came out of his house. They tried to pacify the appellant but he gave knife-blow to the deceased and caused injury on his chest as a result of which blood gushed out of his chest, he fell down on the ground and died. Same is the statement of Basubai (PW 2). widow of the deceased. The independent witness Ramesh (PW 5) and Gopilal (PW 6) did not support prosecution case. They were declared hostile. It is true that PW 1, PW 2, and PW 3 are near relations of the deceased. Sheru is brother-in-Iaw. Basubai is widow and Kishore is son of the deceased. But on the ground of relationship their evidence cannot be discarded their evidence has been corroborated by medical evidence. Dr. T.S. Tanvar (PW 4) who performed post-mortem examination found one penetrating (stab wound) on the chest of the deceased which had cut avorta as a result of which the deceased died. The evidence of Sheru is further corroborated by the FIR Ex. P.1 which was lodged just after the incident. It is, therefore, proved that the appellant caused knife-blow to the deceased as a result of which the latter died. 7. Now the question is whether the appellant had right of self defence which extended to the voluntary causing of death. The defence of the appellant is that the deceased attacked his father and him and caused injury to his father on his head by lathi and thereafter he gave lath i-blow to him and caused greivous hurt on his hand. Under such circumstances, to save his and 'his father's life; he gave only one knife-blow which unfortunately fell on his chest. 8. The onus of establishing right of self defence is on the' accused, however he is not required to prove it beyond doubt, showing of preponderance of probability even colour of right. is sufficient. In this case, both sides are accusing each other to be aggressor. It is settled law that aggressor has no right of private defence It is, therefore, to be seen whether the appellant was aggressor or the deceased. 9. Sheru, Basubai and Kishore deposed that the appellant came to the house of the deceased and hurled abuses and asked him to come out of his house. on this the deceased came to him but this evidence is not truthful. 9. Sheru, Basubai and Kishore deposed that the appellant came to the house of the deceased and hurled abuses and asked him to come out of his house. on this the deceased came to him but this evidence is not truthful. Sheru admitted in cross-examination in paragraph 12 that the house of deceased Champalal was behind the house of Bhiliya. The appellant was uttering abuses standing on the road between his house and that of Bhiliva. This fact has also been admitted by Sheru in para 22 of his statement. In spot-map Ex. P.2 the place of incident has Sheru in para 22 of his statement. In spot-map Ex. P. 2 the place of the incident has been shown on the road between the houses of Bhiliya and Prabhudayal. The soil collected from this place was found stained with blood vide F.S.L. report Ex.P. 9. Investigating Officer R.S. Savita (PW 9) admitted this fact in paragraph 15 of his statement. He further clearly admitted that the incident did not take place infront of the house of the deceased. It is, therefore, clear that the appellant did not go to the house of the deceased nor was he standing infront of the house of the deceased. He was standing on the road between the houses of Bhiliya arid Prabhudayal. The house of the deceased was in north to the house of Bhiliya. Simply because the appellant went in the vicinity of the house of the deceased and was armed with knife, it cannot be said that he was aggressor. He did not enter or even go in front of the house of the appellant. It is thus clear that the appellant was not aggressor. 10. It is clear from the evidence of the prosecution witnesses that the deceased himself came out of his house and went to the road near the appellant. Ramesh and Basubai denied the suggestion that the deceased was armed with lathi. Basubai was confronted with A to A portion of her police statement Ex. D. 2 wherein she had stated that her husband came out of his house having lathi in his hand. Sheru (PW I) clearly admitted in para 17 of his deposition that when the deceased came out of his house, he was having "danda' in his hand. These witnesses stated that the deceased did not inflict an lathi-blow to the appellant or his father. Sheru (PW I) clearly admitted in para 17 of his deposition that when the deceased came out of his house, he was having "danda' in his hand. These witnesses stated that the deceased did not inflict an lathi-blow to the appellant or his father. But the independent witness Rames; (PW 5) stated that the deceased gave one lathi-blow to Kanwarlal the father of the appellant which landed on his head and thereafter he inflicted another lathi-blow which fell on the right hand or the appellant. The prosecution declared this witness hostile. But it is well settled that merely a witness is declared hostile, he does not become unreliable witness and his evidence cannot be overthrown. The evidence of Ramesh has been corroborated by medical evidence. Investigating Officer. Rampuriya (PW 8) also corroborated his version. He admitted that the appellant had injury and he was got medically examined. Dr. T.S. Tanwar (PW 4) examined Kanwarlal on 2.11.92 and found' one lacerated wound 2cm x 1cm x 1/4cm on forehead vide report Ex. D. 4. He stated that he also examined the appellant on the same day and found one contusion on his right foream1 vide his report Ex D. 5. He also x-rayed his right hand and found fracture of right radius bone vide x-ray report Ex. D.6 and Ex. D.7. It is thus established that the deceased caused head injury to Kanwarlal and grievous hurt to the appellant thereafter the appellant gave one knife-blow to the deceased which unfortunately landed on the chest and proved fatal. The conduct of the appellant shows that he had not gone on the spot to assault the deceased. The appellant did not go infront of the house of the deceased. He was standing on the road between the houses of Bhiliya and Prabhudayal, away from the house of the deceased. He saw the deceased coming from his house armed with lathi. Even then he did not attack the deceased. The deceased came near him and his father, and gave lathi-blow to the latter which landed on his head, a vital part of the body, still the appellant controd himself and kept restraint and did not assault the deceased. But the deceased was not satisfied with this alone, he gave lathi-blow to the appellant which fell on his right hand and fractured his radius bone. But the deceased was not satisfied with this alone, he gave lathi-blow to the appellant which fell on his right hand and fractured his radius bone. Causing of fracture shows that great force was applied in inflicting this Injury. On causing of greivous hurt, the appellant had reasonable apprehension that death or more greivous hurts would be inflicted to him, therefore, to protect himself, he gave knife-blow to the deceased which caused incised wound on his chest and proved fatal The deceased had fallen on the ground but the appellant did not take advantage of his helplessness and did not repeat the blows and ran away from the spot. The prosecution did not explain the injury of the appellant. All the witnesses stated that they did not see any injury on the body of the appellant. The non-explanation of the injury further strengthens the defence of the appellant. 11. From the above, it is clear that the deceased himself was aggressor. He came from his house armed with lathi went to the road, near the appellant and caused greivous hurt to him. Under these circumstances, we hold that the appellant had right of private defence and it extended to the voluntary causing of death of the deceased Champalal under Sections 97/100 of the IPC. 12. The argument that the appellant exceeded right of private defence is not acceptable. It is true that knife-blow was given with force as it had cut avorta. But it cannot be weighed in golden scale. The argument that the appellant went near the house of the deceased, uttered abuses and provoked the deceased to come to him, therefore, the deceased was right in inflicting some injuries and the appellant had no right of private defence, is without substance. The• appellant uttered obscene words or gave threatening, the deceased could go to police station and lodge report for necessary action and could avoid the incident. Giving of provocation or commission of offence by the appellant, did not give right to the deceased to punish him. He could be punished only in accordance with law. In any case, the deceased had no right to take the law in his own hand and inflict punishment on the appellant and his father by giving them lathi-blows. The learned sessions Judge committed error in holding that the appellant was aggressor and he had no right of private defence. 13. He could be punished only in accordance with law. In any case, the deceased had no right to take the law in his own hand and inflict punishment on the appellant and his father by giving them lathi-blows. The learned sessions Judge committed error in holding that the appellant was aggressor and he had no right of private defence. 13. As stated above, the appellant caused the death of the deceased Champalal in exercise of right of private defence, therefore no offence u/s 302 IPC was made out against him. 14. In the result, the appeal is allowed. The conviction and the sentence imposed on the appellant arc set-aside. He is no bail, his bail-bonds are discharged.