Bhim Sein vs State

The appellant has been convicted by Sessions Judge Rathua under section 302 RPC for having committed the murder of one Bishamber Dass

and sentenced to undergo imprisonment for life, He has appealed against his conviction and sentence. Along side, (he Sessions Judge has also

made a reference for confirmation of the sentence of imprisonment for life imposed on him. This judgment will dispose of the appeal as well as the

reference.

On 3041978, as the prosecution story goes, PWs Kartar Chand, Bodh Raj and Romelu Ram and the deceased Bishamber Dass were thrashing

wheat crop in their filed. PW Lila Devi had brought breakfast for them, and after it was served to them, she returned home. On her way she was

accosted by the appellant, who asked her to have sexual intercourse with him. She resented it and started shouting at him, which attracted her

husband the deceased, who rushed to her One enquiring from her as to what had happened, she told him that the appellant was asking her to have

sexual intercourse with him. This angered the deceased, who warned the appellant that he would report this matter to the police. On this, the

appellant got enraged and inflicted two blows on the deceased with a sickle which he was having with him. In the meantime, PWs Kartar Chand

and Bodh Raj had also reached the spot. While the appellant was trying to inflict a third blow on the deceased, P. W. Bodh Raj caught hold of the

sickle and, thereby averted the blow. The appellant would not permit him to snatch the sickle and in the process whereas PW Bodh Raj sustained

a minor injury, the appellant also fell on the ground. The deceased was found dying unconscious on the ground after having sustained two injuries,

who was then removed to his house, where he breathed his last.

During the trial, the prosecution examined a number of witnesses, including the three eye witnesses, namely, Kartar Chand, Bodh Raj and Lilo

Devi. It also examined Dr. K. K. Gupta who had conducted autopsy on the dead body of the deceased and had also examined the appellant for

the injuries which he too had sustained during the occurrence. The Radiologist Dr. Inder Singh Who had Xrayed the appellant, was also examined.

Dr. K. R. Gupta found the following injuries on the person of the deceased :

Fourth and fifth intercostal spaces out of and cartillages corresponding to the wound cut pleura ruptured, pericardium reptured cavity full of

blood clots.

Right ventricle of the heart punctured.

Lungs ruptured under the wound.

An incised wound about two inches by 1/2"" on left axillary line just below the nipple line about two inches deep slaunting in position cutting the

costalmusles on left side.

An incised wound 2"" x 1"" penetrating the ribs 2"" below the left nipple and near the sternum cutting the lungs and parsing the right ventricle,

pericardial cavity full of blood.

The defence set up by the appellant was that he did not attack anybody, rather he was himself attacked by the deceased and PWs Kartar

Cband and Bodh Raj with sticks and sickle. While attacking him, the sickle was hurled at him, which incidentally did not hit him but fell on the

ground. He picked it' up and threw it at the deceased to save his own life, which incidentally hit him on the chest causing injury to it. The other

injury was sustained by the deceased by falling on the same sickle. No witness was, however, examined by him in defence. The learned Sessions

Judge on consideration of the evidence eventually found the offence to have been proved against the appellant beyond reasonable doubt. For

holding him guilty he relied upon the testimony of the aforesaid three eye witnesses, the recovery of the weapon of the offence, namely, the sickle at

the instance of the appellant and the statement of PW Dr. K. R. Gupta that the deceased had died due to injuries sustained by him in the ordinary

course of nature, were sufficient to cause his death.

It is in fact a case where the accused has specifically pleaded the right of self defence. Right of private defence of body in terms of Section 100

R. P. C. extends to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of such right be

either an assault as may be reasonably cause the apprehension that death will otherwise be the consequence of such assault, or it may be the

assault as may reasonably cause apprehension that grievous hurt will be otherwise the consequence of such assault. We have already noticed that

the accused was also examined by P. W. Dr. K. R. Gupta for the injuries he had admittedly suffered during the occurrence. He had found the

following injuries on his person :

1.""Contusion with ecchymosis on left knee about 5""X2"".

A diffuse contusion with slight laceration on left parietal region.

A contusion with swelling of lower jaw about 3""X2"",

A contusion with swelling of left hand.

A contusion with ecchymosis of left fore arm with fracture of left Ulna bone lower 3rd

Injury No. 5 is a grievous hurt being fracture of the Ulna bone. If, therefore, the facts and circumstances of the case can reasonably warrant an

inference that the appellant had caused the death of the deceased in order to save his own life, or even to avert the danger of being grievously hurt

by the assailant, then surely the Exception provided by section 100 would be attracted to his case and his conviction would be liable to be set

aside.

The prosecution case is that there was no occasion for the appellant to exercise his right of self defence, because nobody had attacked him. He

was himself the aggressor and had attacked the deceased after being infuriated at his remark that he will make a report to the police in regard to his

indecent overtures towards his wife, PW Lilo Devi. The learned Sessions Judge has accepted this story, and if we may say so, much too

credulously. It is common ground that the appellant had uttered obscene words by asking PW Lilo Devi to have sexual intercourse with him. It is in

the evidence of PWs Kartar Chand, Bodh Raj and Lilo Devi that after these words were uttered by the appellant, there was a heated exchange of

words between him and PW Lilo Devi, who had reacted sharply to these words and had started shouting at him. This noisy altercation between

them had attracted the attention of the deceased, who had at once rushed towards PW Lilo Devi, and on reaching there had enquired from her as

to what had happened. She had told him that the appellant was asking her to have sexual intercourse with him. The deceased, a husband hearing a

third person asking his wife to have sexual intercourse with him, it is natural human reaction, must have got enraged. He could not have acted with

such equanimity as to have merely told the appellant that he would report the matter to the police. We have no doubt in our mind that these words

must have caused grave provocation and made the deceased attack1 the appellant with lathi with a view to vindicating his own honour, as well as

the honour of his wife. It is also not possible for us to believe that merely because the deceased had warned him that he would report the matter to

the police, the appellant have got offended and attacked the deceased to cause his death. It is, therefore, more probable that the deceased and not

the appellant might have been the first to make the assault. He must have given many blows with the stick, one of which landed on his ulna causing

its fracture. Placed in this situation, the appellant in order to repel the attack, might have caused the two injuries with the sickle to the deceased. It

is not possible for us to hold that he did not do so except in exercise of his right of self defence. There was not merely an apprehension of death or

grievous hurt. The appellant had in fact sustained a grievous injury. It is true that neither the witnesses for the prosecution say that the deceased had

attached the appellant first and nor has he examined any witness in defence. But, the very circumstances which provide the background of the

incident are so clinching in nature that they do not permit us to raise any other inference. Surer circumstances it is well settled, are better than the

statements of eye witnesses, for eye witnesses may lie, but circumstances will never lie. Court should not be too willing to accept the oral statement

of witnesses. Before accepting them, they must see that they accord with probabilities, keeping in view the human nature, science, the laws of

nature and other similar circumstances.

The learned Additional Advocate General, however, tried to explain the injuries on the person of the appellant by arguing that these could have

been caused due to a fall. To support his contention, he drew our attention to the following statement made by PW Dr. K.R. Gupta. These injuries

could be possible on the person of Bhim Sein accused by falling on irregular surface by the left side and the weight of the body on the left arm."" It

is true that the Dr. has opined that these injuries could also be caused by falling on irregular surface, but, from his aforesaid statement it cannot be

further inferred that all these five injuries could have been caused by a single fall. It is prosecution's own case that the appellant had fallen only

once. If that were so, it was necessary for the prosecution to have got it clarified from this witness as to whether or not all these five injuries could

have been caused by a single fall. No such attempt has been made by it in this behalf. On the other hand this very witness has deposed that these

injuries could also have been caused by a lathi. To the same effect is the statement of Radiologist, PW Dr. Inder Singh, who has discovered the

fracture of the Ulna bone, Looking at the nature of these injuries, we are not inclined to believe that these could have been caused by a single fall.

That apart, there is yet another circumstance which improbabilises the aforesaid explanation. In the first information report, it has nowhere been

stated that the appellant had fallen on the ground when PW Bodh Raj was trying to snatch away the sickle from him, Even though the first

informant had been careful enough to say that the appellant too had sustained some injuries during the scuffle, yet he failed to mention the other, if

not more yet equally important fact that he had sustained the same by falling on the ground. This clearly shows that the story of the accused having

fallen on the ground during the scuffle was an after thought.

Section 100 occurs in Chapter IV of the R. P. C which deals with general Exceptions. Under section 105 of the Evidence Act the burden of

proving the existence or the circumstances, bringing the appellant's case within section 100, lies en him. Section 105 ordains that the Court will

presume the absence of such circumstance. But, it is well settled, that the burden on the accused to prove or exception is not of the same nature as

the burden on the prosecution to establish the guilt of the accused, beyond reasonable doubt. The nature of the burden on the accused to bring his

case within an Exception is analogous to that resting on the plaintiff in a civil case. He is not required to prove the existence of tease circumstances

beyond reasonable doubt, but may prove their existence by mere preponderance of probability. For this, he may not only rely upon defence

evidence but also on the prosecution evidence itself and the presumptions arising under law. Once be has succeeded in probabilising the existence

of those circumstances, he shall have discharged his burden by raising a doubt in the mind of the court as regards one or the other of the necessary

ingredients of the offence, Keeping in view the facts and circumstances of the present case discussed by us heretofore, we are satisfied that the

appellant has succeeded in probabilising his plea of self defence. These facts and circumstances have raised reasonable doubt in our mind as to

whether the appellant had at all an intention to kill the deceased Even if he may not be said to have established his plea of self defence beyond

reasonable doubt, we have still no reason to exclude the possibility that he might have inflicted injuries to the deceased with an intention to save his

own life and not with an intention to kill him.

One of the grounds on which the benefit of right of self defence has not been given to the appellant by the learned Session Judge is that he had

himself provoked the deceased to assault him by making a highly objectionable demand from his wife. He has. in our opinion, clearly slipped into

an error. None of the sections dealing with the right of private defence, whether of body or property, warrants such an in inference. Granting that

the appellant had provoked the deceased, even gravely, to assault him by asking his wife PW Lilo Devi to have sexual intercourse with him, still the

deceased had no right to take law into his own hands and attack the appellant in retribution. Provocation could no doubt be considered as a

circumstance mitigating the offence, but, surely, it could not have completely absolved the deceased of the offence Consequently, the appellant

apprehending death or grievous hurt at his hands, bad every right to attack the deceased in retaliation, even if the attack eventually resulted in his

death. We find no force in the argument of the learned Addl. Advocate General, that the principal embodied in the first proviso to exception I of

Section 300 is applicable with equal force to section 100 as well. This we say for two reasons one, that it is not permissible to read an exception

appended to one provision as an exception to any other provision occurring in the same statute, and, two, that whereas what is to be decided

under section 300 is whether or not the accused had an intention to kill the deceased, the precise issue involved under section 100 is whether or

not the accused had an intention to defend himself, Giving provocation to the deceasedwith a view to finding an excuse for killing him or doing any

harm to him, is the very ante thesis of the basic concept of Section 100. Even otherwise also, the rule enshrined in the first proviso cannot apply to

the present case, for it has never been the prosecution case that the appellant had voluntarily provoked the deceased, because he intended to make

it an excuse for putting an end to his life.

Lastly, the learned Addl. Advocate General contended that even if the appellant had a right of self defence, he had still exceeded it, for he had

caused two fatal injuries to the deceased on his chest, and was intending to cause a third also, when be was intercepted by PW Bodh Raj. We are

not impressed with his argument either. With death or grievous hurt staring at his face an accused is not expected to regulate his defence step by

step measuring each such step in golden scales. To expect detached reflection from him under such circumstances is virtually impossible. The

appellant had received not less than five injuries, out of which one was grievous. He could have reasonably apprehended even worse. It cannot

therefore, be contended that he has exceeded his right of self defence.

Accepting his plea of self defence, we allow this appeal and acquit the appellant of the charge. The reference made by the Sessions Judge is as

a consequence rejected.