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2010 DIGILAW 267 (CHH)

Rajkumar v. State of M. P. (now C. G. )

2010-11-16

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2010
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 18th of January, 1993 passed in Sessions Trial No. 242/91 by the Third Additional Sessions Judge, Raipur. 2. By the impugned judgment, the Appellant has been convicted Under Section 302 IPC and sentenced to undergo imprisonment for life. 3. The facts, briefly stated, are as under: Ganga Bai (PW-5) is wife of deceased- Chatur Bahadur. Three-four months prior to the date of incident, Ganga Bai left the house of Chatur Bahadur and started living with the Appellant as his wife. Two affidavits in this regard were also prepared by Ganga Bai (PW-5) and the Appellant. The affidavits are Ex.-P/4 & P/5. After 3-4 months, Ganga Bai returned to the house of the deceased. The case of the prosecution is that on 4.3.91, the Appellant came to the house of the deceased and demanded those affidavits. The deceased and Ganga Bai denied to give affidavits to the Appellant. The allegations are that while the deceased and Ganga Bai were going to Urla, the Appellant came there and assaulted the deceased by knife. The deceased received various injuries, out of which, the injuries on the chest and back portion of skull were fatal. Corresponding the chest injury the lung of that side also got injured. Back bone of the skull was cut corresponding to the injury of the skull. In all the prosecution cited 8 eye-witnesses namely Gukul (PW-1), Kunwarmati (PW-3), Ganga Bai (PW-5), Lokuram (PW-9), Vimlesh Kumari (PW-10), Sunita Bai (PW-11), Sukhbati Bai (PW-12) and Tirath Bahadur (PW-13). Out of the above witnesses except Ganga Bai (PW-5) and Vimlesh Kumari (PW-10 -daughter of the deceased), all other witnesses turned hostile and they did not support the case of the prosecution. Ganga Bai (PW-5) admitted that a quarrel took place between the Appellant & the deceased and firstly the deceased assaulted the Appellant by spear on his head, then the Appellant also assaulted the deceased by knife. The Appellant took the plea of right of private defence, but the said plea taken by the Appellant, was not accepted and the Appellant was convicted and sentenced as aforementioned. 4. A perusal of the records would show that the Appellant took the plea of right of private defence in his 313 Code of Criminal Procedure statement and pleaded that the deceased assaulted him by spear which hit on his head. 4. A perusal of the records would show that the Appellant took the plea of right of private defence in his 313 Code of Criminal Procedure statement and pleaded that the deceased assaulted him by spear which hit on his head. The injury received by him was stitched by putting 11 stitches and he was treated in the jail. The Appellant has also examined 2 defence witnesses namely Dr. S.K. Adwani (DW-1) and Mirza Sahid Baeg (DW-2). 5. Dr. S.K. Adwani (DW-1) deposed that according to the jail register (OPD - Ex.-D/1), the name of the Appellant is mentioned in the said register. He deposed that the Appellant has stitched wound and the wound was stitched by 11 stitches and the Appellant was treated in D.K. Hospital, Raipur. The Appellant was later on treated in jail hospital and his stitches were removed on 11.3.91. The entry to this effect is Ex.-D/2. Mirza Sahid Baeg (DW-2) was Assistant Jailor in Central Jail, Raipur. He proved the entries on Ex.-D/3 and deposed that the Appellant was brought to the jai in injured condition. He had received injury on his head and hands. 6. Now we shall examine the plea of right of private defence. 7. Section 96 IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. The right of private defence of the body extends, under the restrictions mentioned in Section 99 IPC, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions enumerated in Section 100 IPC. The right of private defence commences as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, to commit the offence, although the offence may not have been committed, but not until there is reasonable apprehension. In other words, the right is coextensive to the reasonable apprehension of the danger to the body continues. The right of private defence commences as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, to commit the offence, although the offence may not have been committed, but not until there is reasonable apprehension. In other words, the right is coextensive to the reasonable apprehension of the danger to the body continues. Therefore, if claim is being made that the accused acted in exercise of power of right of private defence, he must show that there were prevailing circumstances giving rise to reasonable apprehension that either the death or grievous hurt would be caused if the right is not exercised. 8. Mr. Akhil Mishra, learned Counsel for the State, has argued that in the facts and circumstances of the case, the right of private defence was not available to the Appellant. We shall examine the said argument in context of the material available on record. 9. Ganga Bai (PW-5) deposed that on the fateful day, the Appellant came to their house and demanded the documents (two affidavits) prepared and sworn by them regarding keeping this witness as wife by the Appellant. That was denied by PW-5 as also by the deceased. The deceased and Ganga Bai (PW-5) then were going to Urla. The Appellant came on the way and a quarrel began between the Appellant and the deceased. Ganga Bai (PW-5) tried to intervene. But, the deceased firstly assaulted the Appellant by spear on his head. This is what she stated in the examination-in-chief. In the cross-examination, she categorically admitted that the deceased was having the spear because he always used to keep spear with him. She very categorically admitted that the Appellant did not quarrel with the deceased but he simply demanded the papers. She further admitted that since the deceased was annoyed with the Appellant, therefore, he assaulted the Appellant by spear and the Appellant received injury on his head. The evidence of this witness supports the plea of the Appellant that he assaulted the deceased in exercise of his right of private defence. According to the defence witnesses, the Appellant had received injury on his head and 11 stitches were put on his injury and he was treated in the medical college hospital and jail hospital at Raipur. It is also established that the deceased was armed with spear and he firstly assaulted the Appellant. According to the defence witnesses, the Appellant had received injury on his head and 11 stitches were put on his injury and he was treated in the medical college hospital and jail hospital at Raipur. It is also established that the deceased was armed with spear and he firstly assaulted the Appellant. In the above mentioned facts and circumstances of the case a conclusion can be drawn that when the deceased assaulted the Appellant by spear on his head and the Appellant received head injury, a reasonable apprehension of danger to the body must have arisen and in the facts and circumstances of the case, the Appellant had a right of private defence. 10. Now we shall examine as to whether the Appellant had proportionately exercised the right of private defence or he exceeded the power given to him by law by causing death of the deceased. The right of private defence, as stated above, is made subject to certain restrictions. In the first instance, the right, in no case, extends to the inflicting of more harm than it is necessary to inflict for the purposes of defence. If, therefore, a person exercising the right of private defence, causes death where it is not necessary to do so for the purposes of such defence, he exceeds the power so given to him by law under Exception 2 of Section 300 IPC. The question of the operation of Exception 2 arises only if the alleged offender exceeds the right of private defence subject to limitations that he caused death of a person without premeditation and that the death of the deceased was without any intention of doing more harm than what was necessary for the purposes of defence. 11. In the present case, the Appellant went to the house of the deceased for demanding the affidavits. An altercation took place between the Appellant and the deceased and according to Ganga Bai (PW-5), the deceased firstly assaulted the Appellant by spear on his head and then the Appellant gave knife blows to the deceased. There is nothing on record to show that the Appellant went to the house of the deceased with any arm and the spear, khukhri and knife were seized from the place of occurrence. There is nothing on record to show that the Appellant went to the house of the deceased with any arm and the spear, khukhri and knife were seized from the place of occurrence. This shows that the act of the Appellant was without any intention and preparation and the Appellant had a right of self defence, but the Appellant certainly exceeded the right by inflicting more injuries to the deceased which in fact were not needed after he would have protected himself by inflicting one or two injuries to the deceased, and the case of the Appellant, therefore, would fall within the ambit of Exception 2 of Section 300 IPC. Therefore, in the above facts and circumstances of the case, the Appellant cannot claim acquittal. Though the charges of murder would fail but the Appellant would be liable to be convicted Under Section 304 Part-I IPC. 12. Accordingly, the appeal is partly allowed. The conviction and sentence awarded to the Appellant Under Section 302 IPC are set-aside. Instead, the Appellant is convicted Under Section 304 Part-I IPC and sentenced to the period already undergone by him, which comes about 4 years in this matter. It is stated that the Appellant is on bail. His bail bonds are cancelled and surety stands discharged.