Daroga Lohar vs Emperor

Macpherson, J.—These appeals are preferred, one from jail and the other through pleader, by Daroga Lohar who has been convicted u/s 302, I.P.C. by the Sessions Judge of Monghyr and sentenced to transportation for life. They are to be treated as a single appeal.

The charge against him was that on 3rd June 1929 at Lakhisari he committed murder of Durga Singh, a Punjabi, by stabbing him in the abdomen with a knife or dagger. The assessors considered that the case fell u/s 304, I. P. C. but the learned Sessions Judge was unable to accede to the contention that Excep. 2 to Section 300 was applicable to the case.

The case for the prosecution was briefly as follows:

The appellant was a debtor of a Punjabi money-lender named Thakur Singh whose two peons Durga Singh and Maha Singh went out in the afternoon of the 3rd June to collect his dues. They met the appellant about 7-30 p. m. and insisted that he should accompany them to their master to settle the question of payment. The appellant declined to go and the deceased Durga Singh caught hold of him by the arm and dragged him along. After they had proceeded a little distance the appellant pulled out a knife or dagger and stabbed Durga Singh with it in the lower part of the : abdomen on the right side. The appellant then made off and seems to have, gone to the thana. The injured man was taken by Maha Singh to the National School some 250 or 300 yards distant and pleased there in charge of the masters while Maha Singh himself set ''out to tell his master Thakur Singh what had happened, and brought him with a number of other persons to the National School when they found that a literate constable from Lakhisari thana was already there. Thakur Singh examined the wound of the injured man and found it very serious and with the literate constable insisted upon taking him to the thana in spite of the remonstrances of the headmaster who advised that he be taken forthwith to the hospital From the thana where he made a statement that ''the wound was caused by appellant with a knife Durga Singh was taken to the ''hospital where he died on the following morning. The Civil Surgeon in postmortem examination found an incised wound 2-1/2 inches long on the right-side of the lower part of the abdomen perforating the abdominal wall and in his opinion death was due to the injury and haemorrhage in the abdomen which ensued in consequence of it. He also held that the wound could have been inflicted with a knife to be presently mentioned.

It is further set out that on the morning of 4th the literate constable was (directed to proceed to the scene of occurrence and search for the knife with 1 which the appellant was alleged to have stabbed the deceased. A chaukidar named Idan Mian, who accompanied him, discovered in a paddy field some 115 yards from the roadside a knife discovered as in a more or less finished state. This knife is sought to be connected with the appellant by the evidence of Lachmi Marwari, who is the landlord of the house of Thakur Singh and who states that he saw. the appellant preparing it at his forge on the evening of the day of occurrence. That is the knife which the Civil Surgeon stated could have inflicted the wound which caused the death of the deceased.

The defence is difficult to describe. But it appears from the written statement to be that when the appellant refused to go to Thakur Singh, Durga Singh the deceased aimed a knife at him and in the struggle for it between the two men both fell down and the knife injured Durga Singh in the abdomen by accident.

The Judge and the assessors who heard the evidence obviously accepted it so far as the question whether the appellant dealt the fatal blow is concerned and they only differed as to whether the offence committed by the appellant fell under the head of murder or of culpable homicide not amounting to murder.

There is indeed a further statment of some of the assessors that they were not satisfied that the knife produced was the weapon which had caused the injury to the deceased. The learned Sessions Judge, however, was of opinion that the evidence of Lachmi Marwari was clearly true and that there could be no doubt that the wound which caused the death of Durga Singh was inflicted by the appellant with the weapon already described. To my mind his view is unquestionably correct.

In appeal it has first been urged by Mr. S.K. Bhattacharjya that the injury was accidental. There does not appear, however, to be any sound foundation for this submission. The evidence has, in my opinion, been rightly believed in the trial Court and it clearly brings home to the appellant the responsibility for, the death of the deceased by a deliberate blow and not by any accident.

The main submission, however, is that the offence does not amount to murder, but is by reason of the right of private defence of the person clearly a case of culpable homicide not amounting to murder.

Reliance is placed on the provision of Section 100, fifthly, whereby the right of private defence of the body extends under the restrictions mentioned in Section 100, to the voluntary causing of death if the offence which occasions the exercise of the right be an assault with the intention of kidnapping or abducting.

The material findings of the learned Sessions Judge are stated in a single sentence:

Apart from the fact that it was undoubtedly Daroga Lohar who stabbed Durga Singh, the two points which emerge quite clearly from the evidence are that the blow was struck on a sudden irrational impulse and it was struck because Daroga Lohar was being forced against his will, to go with the peons to Lakhisarai.

In my judgment the seizure of the appellant by the two Panjabi peons, who were dragging him against his will to their master falls within the provisions of Section 362 and constituted abduction since they were by force compelling him to go from the place where they seized him, and accordingly he possessed the right of private defence of his body even to the causing of death, subject to the restrictions mentioned in Section 99. The most important of these restrictions so far as the present case is concerned, is that the right of private defence in no case extends to the inflicting of more harm than it was necessary to inflict for the purpose of defence. Now the peons were armed with lathis and it would appear that they also had kirpans since the evidence of Lachmi Marwari is that in such circumstances they usally carry them the fact which may well have been known to the appellant. But it was also well known to him that no real personal harm was likely to ensue since he was only being taken by them to their master whom he had met a few hours before and with whom he had discussed the question of the repayment of the sum which was owing by him.

In these circumstances though he clearly possessed the right of private defence of his person, it was an excess of it to inflict the harm which he did by striking the deceased with the knife or dagger in a vital part of the body. But, as remarked by the learned Sessions Judge, it was sudden irrational act, and he had not the intention of doing more harm than was necessary for the purposes of his defence. Accordingly he is within Excep. 2 to Section 300 as an offender who in the exercise in good faith of the right of private defence of person exceeded the power given to him under the statute and caused the death of the person against whom he was defending himself. ID these circumstances I would hold that the offence falls not u/s 302 but under 304, I.P.C.

As to the question of sentence, a heavy punishment does not appear to be called for. The appellant is a youth of 20 and he found himself in the hands of two armed peons who were not likely to handle him at all gently and from whose clutches he probably felt that it was necessary that he should be free as soon as possible.

I would therefore allow the appeal in part and alter the conviction u/s 302 to one u/s 304,.I.P.C, (part. 2) and sentence the appellant Daroga. Lohar to rigorous imprisonment for a period of two years.

Courtney-Terrell, C.J.

I agree.