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2013 DIGILAW 207 (CHH)

HARIHAR YADAV v. STATE OF M. P.

2013-07-09

R.N.Chandrakar, Sunil Kumar Sinha

body2013
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 12th of January, 1998 passed in Sessions Trial No. 314/96 by the First Additional Sessions Judge, Ambikapur, District Surguja. By the impugned judgment, the appellant has been convicted u/S 302 IPC and sentence to undergo imprisonment for life. 2. The facts, briefly stated, are as under:- 2.1 On 28.4.1996 at about 2.00 p.m., she-buffalo of the accused entered into khaliyan of deceased Abbas Miyan and started eating wheat and wheat-straw. When it was obstructed by the deceased, the accused assaulted the deceased by tangi who sustained following injuries:- (i) Incised wound on 3 x 2 inch just above the chest horizontally cutting half of the trachea; (ii) Incised wound of 3 x 2 x 2½ inch on the front portion of neck, half inch above injury no. (i), all the blood vessels of the neck, including carotid artery were completely cut; (iii) Incised wound of 3 x 2 x 2 inch on the right shoulder near the base of neck. The Autopsy Surgeon, Dr. N.K. Dutta (PW-3), opined that the above injuries were ante-mortem caused by sharp edged weapon and were sufficient to cause death in ordinary course of nature. The cause of death was haemorrhage and shock on account of the above injuries and the death was homicidal in nature. The postmortem report is Ex.-P/10. 2.2 During the course of investigation, the accused was taken into custody and his memorandum statement (Ex.-P/4) u/S 27 of the Evidence Act was recorded and a tangi (kulhadi) fitted with bamboo handle was seized at his instance vide seizure memo Ex.-P/5. Many other articles were also seized. The seized articles were sent for their chemical examination to Forensic Science Laboratory (FSL), Sagar, from where, a report (Ex.-P/17) was received. According to the FSL report, blood stains were found on almost all the articles except the plain soil and loongi of the deceased. The articles were sent for Serologist Examination also and a report was received, according to which all above articles were stained with human blood and the blood stains over chhaddi of the appellant (Article-E) and cloths of the deceased (Article-F2 to F3) were found to be of 'O' Group (common group). The articles were sent for Serologist Examination also and a report was received, according to which all above articles were stained with human blood and the blood stains over chhaddi of the appellant (Article-E) and cloths of the deceased (Article-F2 to F3) were found to be of 'O' Group (common group). 2.3 The accused had also sustained following injuries:- (i) Abrasion of about 8 cm on the inner portion of left forearm; (ii) Abrasion of ½ x ½ cm on the outer portion of left elbow; (iii) Laceration of 1 cm on right thumb; (iv) Laceration of ½ cm on middle of scalp. All above injuries were simple injuries which could have been caused by rough object. His MLC report is Ex.-P/11 which was also given by Dr. N.K. Dutta (PW-3). 2.4 The case of the prosecution was based on eye-witness account of Azim Ansari (PW-2). Amir Baksh (PW-4) had lodged First Information Report (F.I.R. - Ex.-P/13) and merg intimation (Ex.P/14). Both these documents contained the name of the accused. 2.5 The learned Sessions Judge relied on the testimony of Azim Anasari (PW-2) and convicted and sentenced the appellant as above. Hence this appeal. 3. Mr. Rakesh Pandey, learned counsel appearing on behalf of the appellant, has argued that the accused had inflicted above injuries in right of private defence of person and property, therefore, an offence u/S 302 IPC would not be made out. Alternatively, he argued that it may be a case of exceeding of right of private defence, therefore, the accused may be punished for commission of an offence of culpable homicide not amounting to murder. 4. On the other hand, Mr. Vinod Tekam, learned Panel Lawyer appearing on behalf of the State, has opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard counsel for the parties. 6. Azim Ansari (PW-2) reached to the Khaliyan of Abbas Miyan (deceased) after hearing some cries. He saw that the accused was assaulting Abbas Miyan (deceased) by tangi. He had given two tangi blows on the chest of the deceased. The deceased fell down and died. Mr. Pandey has argued that this witness has admitted in Para-7 of the cross-examination that he did not see any injury on the person of the accused, whereas, the accused had sustained above injuries, therefore, he does not appear to be reliable. He had given two tangi blows on the chest of the deceased. The deceased fell down and died. Mr. Pandey has argued that this witness has admitted in Para-7 of the cross-examination that he did not see any injury on the person of the accused, whereas, the accused had sustained above injuries, therefore, he does not appear to be reliable. We are unable to accept the above argument. Azim Ansari (PW-2) had seen the incident from some distance and he deposed that the accused had run away before he reached where the dead body was lying. The injuries sustained by the accused were not grievous injuries and were minor abrasions and lacerations, and a person from some distance may not be able to see those injuries. Therefore only on account of admitting that he had not seen any injury on the person of the accused, his entire evidence cannot be washed out in the above facts situation of the case. We have gone through the entire evidence of Azim Ansari (PW-2). He has been put to lengthy cross-examination by the defence, but nothing material has been brought in his cross-examination, on which, either his testimony may be discarded or it may be said that he was falsely implicating the appellant in the above manner. 7. The incident took place in broad-day-light at about 2.00 p.m. at a place which was almost in the locality of the village. The accused and the deceased both were well known to this witness, therefore, there was no question of mistaken identity. 8. The version of this witness (PW -2) is corroborated by the medical evidence as also the F.I.R. (Ex.-P/13). We are of the view that the learned Sessions Judge was fully justified in relying on the testimony of Azim Ansari (PW-2). 9. So far as argument relating to right of private defence of person and property is concerned, we do not find any material in the entire evidence available on record, on which, it may be presumed that there was any such situation on which the right of private defence may have accrued in favour of the accused and he exceeded his such right. Mr. Pandey has argued that the accused had also sustained above injuries which shows that he was assaulted by the deceased, and then, apprehending attempt to his life, he had inflicted above injuries to the deceased. 10. Mr. Pandey has argued that the accused had also sustained above injuries which shows that he was assaulted by the deceased, and then, apprehending attempt to his life, he had inflicted above injuries to the deceased. 10. In Darshan Singh Vs. State of Punjab & another, the Supreme Court held that the court dealing with the plea of right of private defence has to weigh the material to conclude whether the plea is acceptable. It was said that it is essentially a finding of fact. The Supreme Court enumerated the following principles relating to the right of private defence:- i. Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits. ii. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation. iii. A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised. iv. The right of private defence commences as soon as a reasonable apprehension arises and it is comterminus with the duration of such apprehension. v. It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. vi. In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property. vii. It is well settled that even if the accused does not plead self defence, it is open to consider such a plea if the same arises from the material on record. viii. The accused need not prove the existence of the right of private defence beyond reasonable doubt. ix. The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence. viii. The accused need not prove the existence of the right of private defence beyond reasonable doubt. ix. The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence. x. A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened. 11. The incident took place in the Khaliyan of the deceased where the accused came armed with kulhadi. The evidence of the eye-witness would show that there was a quarrel and the accused assaulted the deceased by kulhadi. Even if we take, as argued, that in the said quarrel the accused might have received above superficial injuries, but in no case it may give rise to the right of private defence to the accused as there was no evidence to show any reasonable apprehension of danger to the life of the accused or that an attempt or threat was given to him by the deceased before he assaulted him by kulhadi and dealt with repeated blows on his neck resulting into above serious injuries. Only few injuries sustained by the accused, in the facts and circumstances of the case, were not sufficient to entertain the plea of right of private defence. The number and nature of the injuries caused by the accused, the manner of assault and the part of the body chosen by him would show that his intention was to commit murder of the deceased. We are of the view that in the above facts and circumstances of the case, the act committed by the accused was punishable for commission of an offence u/S 302 IPC and not for any lesser offence. 12. We find no merit in the appeal. The appeal is liable to be dismissed and is hereby dismissed. Appeal Dismissed.