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Judgment
310 paragraphs · 6,712 wordsRajeev Kumar Dubey, J
This criminal appeal has been filed against the judgment dated 15/02/2008 passed by II Additional Sessions Judge (Fast Track), Ashta, District
Sehore in ST.No.139/2007, whereby learned ASJ found the appellants guilty for the offence punishable under Sections 302 in alternate 302 read with
Section 34, 323/34, 506-II of the IPC and sentenced them to undergo for life imprisonment with fine of Rs.10,000/- each, R.I. for six months and R.I.
for one year with default stipulation.
Brief facts of the case are that on 16/06/07 at 12:00 P.M. when deceased Bhagirath was at his house situated at Dharampur, appellant Gangaram
armed with axe, appellant Bijendra Kumar & co-accused Manoj armed with stick (Manoj was juvenile, so charge-sheet against him was filed before
the Juvenile Justice Board) came there and abused Bhagirath told him that the Beed farm was theirs and asked him not to go to the said farm. When
Bhagirath stopped them from abusing, appellant Gangaram assaulted Bhagirath with intent to kill him by axe and appellant Bijendra and co-accused
Manoj assaulted him by stick. When Bhagirath tried to escape from the spot, they stopped him and assaulted him again. When his wife Rajalbai
(PW/1) came to rescue him, appellant Gangaram assaulted her too by stick, due to which she also sustained injury on his back. The incident was also
seen by Devkaran (PW/2). In the incident Bhagirath sustained injuries on his head, both legs, hands and other body parts. Appellants also threatened
to kill Bhagirath. Soon after the incident Bhagirath lodged the report (Ex.P/28) at Police Station Siddique Ganj, District Sehore, which was written by
G.S. Sengar A.S.I. (PW/14) and on that report he registered Crime No.58/07 against present appellants Gangaram & Bijendra and co-accused Manoj
for the offence punishable under Sections 294, 323, 307, 506, 341, 34 of the IPC and investigated the matter. During investigation he sent injured
Bhagirath and Rajal Bai (PW/1) to PHC, Siddique Ganj, where Dr. N.L. Parmal (PW/11) examined them and gave MLC report (Ex.P/22 & P/23)
respectively. G.S. Sengar (PW/14) also recorded the dying declaration (Ex.P/24) of Bhagirath at PHC, Siddique Ganj. Dr. N.L. Parmal (PW/11) after
primary treatment referred Bhagirath for further treatment at Civil Hospital, Ashta, where Dr. Praveen Gupta (PW/13) treated him and after
treatment referred him to District Hospital Sehore, but he died due to injuries sustained by him in the incident in Civil Hospital, Ashta before he would
have been taken to Sehore for treatment. On that Dr. Praveen Gupta (PW/13) sent the information (Ex.P/17) regarding his death to P.S. Ashta. On
receiving that information Head Constable Genda Lal (PW/9) wrote inquest report (Ex.P/19) at P.S. Ashta and send it to P.S. Siddique Ganj for
original registration. Thereafter, A.S.I. Asharam went to PHC, Ashta, where he prepared enquest memo of dead body of deceased Bhagirath. On
17/06/2007 Dr. A.K. Jain (PW/10) conducted autopsy of the dead body of deceased Bhagirath and gave postmortem report (Ex.P/21). Police also
added Section 302 of the IPC in the case and further investigation of the crime was conducted by S.N. Pandey (PW/12).
During investigation S.N. Pandey (PW/12) went to spot and prepared spot map (Ex.P/1) and also seized blood stained and simple soil from the spot
and prepared seizure memo (Ex.P/14). He also recorded the case diary statements of Rajalbai (PW/1), Devkaran (PW/2), Balwant Singh (PW/3),
Prakash (PW/5), Harkubai, Amar Singh and Dayaram. He also arrested the appellants Gangaram & Bijendra and prepared arrest memo (Ex.P/7 &
Ex.P/8) respectively and seized one axe and one stick (Artica l-C & D) from the possession of Gangaram and Bijendra respectively on their
information and prepared information memo (Ex.P/9 & Ex.P/10) and seizure memo (Ex.P/11 & Ex.P/12). He also seized blood stained shirt of
Bijendra (Artical-E), which he wore at the time of incident and prepared seizure memo (Ex.P/12) and sent all seized articles alongwith the draft
(Ex.P/27) through S.P. Sehore to Forensic Science Laboratory, Bhopal, from where report (Ex.P/28) was received to the effect that human blood
was found on seized axe, stick and shirt (Article C to E). After investigation Police filed charge-sheet against the appellants before the learned JMFC,
Sehore and against co-accused Manoj before Juvenile Justice Board as he was juvenile. Learned JMFC, Sehore committed the case to the Court of
Sessions, where on that charge-sheet S.T.No.139/07 was registered. Learned A.S.J. framed the charge against the appellants for the offence
punishable under Sections 302 in alternate 302/34, 323 read with Section 34 & 506-II of the IPC and tried the case.
Appellants abjured their guilt and took the defence that on the date of incident when appellant Gangaram was at his house and adjusting the Kavelu
(roof tiles) of his hut, deceased Bhagirath came there armed with stick in a drunken state and started assaulting Gangaram by stick. When his son
Manoj came to rescue him, he also assaulted him by stick. In the incident deceased, who was in a drunken stage, fell down from the roof of hut and
sustained injuries, due to which he died. In this regard appellant Gangaram had also lodged the F.I.R. (Ex.D/5) against Bhagirath. In support of his
defence, appellant Gangaram gave his statement in the defence and also produced Harku Bai (DW/1) and Haricharan (DW/2) as defence witnesses
and also produced the F.I.R. (Ex.D/5) lodged by appellant Gangaram against deceased Bhagirath, injury reports of co-accused Manoj (Ex.D/3) and
Gangaram (Ex.D/4). However, after the trial learned trial Court found appellants Gangaram and Bijendra guilty for the abovementioned offence and
sentenced them as aforesaid. Being aggrieved by the impugned judgment appellants preferred this appeal.
Learned counsel for the appellants submitted that there are many contradictions and omissions in the statements of the prosecution witnesses.
Learned trial Court without appreciating prosecution evidence properly wrongly found the appellants guilty for the aforesaid offence. From the
defence evidence it is clearly proved that at the time of incident appellant Gangaram was at his house, where deceased Bhagirath came in a drunken
state armed with a Lohagi (a stick fitted with iron ring), while Gangaram was on top of his hut and was adjusting his kabelu. Deceased Bhagirath
assaulted appellant Gangaram by stick. When appellant Bijendra and co-accused Manoj came to rescue him, Bhagirath assaulted Manoj and Bijendra
too. In the incident deceased fell down from the roof of the hut and sustained injuries and died. He also submitted that in the incident Gangaram and
his son Manoj also sustained injuries. The so called eyewitness of the incident Rajal Bai (PW/1) and Devkaran (PW/2) in their statements and even
deceased Bhagirath in his dying declaration (Ex.P/24) did not give any explanation regarding their injuries, which shows that they suppressed the
genesis of the incident, so their statements cannot be believed. Learned trial Court committed mistake in believing their statement. In alternate he also
submitted that even if it is assumed that appellants assaulted deceased Bhagirath, then too from the statement of appellant Gangaram and the injury
reports of appellant Gangaram and co-accused Manoj (Ex.D/3 & Ex.D/4) it is apparent that appellant acted in their right of the private defence, so no
offence is made out against appellants. He further submitted that according to the prosecution evidence, the fatal injuries sustained by deceased
Bhagirath were caused by appellant Gangaram and not by appellant Bijendra. Appellant Bijendra assaulted deceased by stick, so his act at the most
comes under Section 326 of the IPC and the act of appellant Gangaram who exceeded his right of the private defence comes at the most under
section 304 part II of the IPC. Learned trial Court without appreciating the prosecution evidence properly, wrongly found the appellants guilty for the
aforesaid offence.
On the other hand learned counsel for the State submitted that appellants did not seek any explanation of the injuries suffered by appellant
Gangaram and co-accused Manoj from Rajal Bai (PW/1), the eyewitness of the incident. So, on the ground that prosecution witnesses did not give
any explanation regarding injuries sustained by appellant Gangaram and co-accused Manoj in the incident, their statements cannot be discarded. Even
from the MLC report of appellant Gangaram and his son Manoj (Ex.D/3 & Ex.D/4) it appears that they sustained only simple injuries and prosecution
is not bound to give explanation of every simple injury sustained by the accused in the incident. Appellantsdid not take the defence that they inflicted
injuries to deceased Bhagirath in their private defence. In this regard they neither gave any suggestion to prosecution witnesses in their cross-
examination, nor took that plea in his examination under Section 313 of Cr.P.C. Even appellant Gangaram in his statement also did not depose that he
inflicted the injuries to deceased Bhagirath in exercise of his right of private defence. He further stated that from the prosecution evidence, it was
clearly proved that at the time of incident appellant Gangaram armed with axe and appellant Bijendra & co-accused Manoj armed with stick went to
the house of Bhagirath and all of them assaulted him by axe and stick in furtherance of their common intention. Gangaram assaulted on his head by
axe. In the incident Bhagirath sustained as many as 13 injuries, his parietal bone, tibia, fibula and ulna bone of left hand were fractured and he also got
fracture in his right hand, which shows that the appellants and co-accused Manoj assaulted deceased Bhagirath with intent to kill him in furtherance of
their common intention. From the prosecution evidence guilt of the appellants is clearly proved beyond reasonable doubt, so the learned trial Court did
not commit any mistake in finding the appellants guilty for the aforesaid offence.
Point of determination in this appeal is whether the conviction and sentence awarded by the trial Court to the appellant under Section 302 in
alternate 302 read with Section 34, 323/34, 506-II of the IPC are liable to be set aside for the reasons stated in the memo of appeal and argued before
this Court.
On the point that Bhagirath died due to injuries sustained by him at the time of incident, there is no ambiguity in the prosecution evidence. Dr. N.L.
Parmal (PW/11), who examined Bhagirath soon after the incident and gave report (Ex.P/22) deposed that on 16/06/07 when he was posted as
Medical Officer at PHC, Siddiqui Ganj, he examined injured Bhagirath on 4:30 P.M., who was brought by Sainik Hukum Kumar and found following
injuries on his body :-
(1) Incised wound size 2†x 1/2 †x bone deep over right side of frontal region of scalp, clotted blood also present.
(2) Incised wound size 1†x 1/2†x bone deep over left parietal region of scalp, clotted blood also present.
(3) Incised wound size 1†x 1/2†bone deep over one inch away of injury No.2, clotted blood also present.
(4) Incised wound size 1/2†x 1/2†x bone deep over upper part of left leg, clotted blood also present.
(5) Lacerated wound size 1†x 1/2†x bone deep over middle of left leg, clotted blood also present.
(6) Incised wound size 1/2†x 1/2†x bone deep over lower 1/3rd of left leg, clotted blood also present.
(7) Contusion red in colour with swelling 1†x 1/2†over upper 1/3rd of left forearm.
(8) Contusion red in colour 1†x 1†over middle part of right forearm.
(9) Incised wound size 1†x 1/4†x 1/4†over chin, clotted blood also present.
(10) Lacerated wound size 1†x 1/2†x 1/4†over left thumb, clotted blood also present.
(11) Abrasion red in colour 1/2†x 1/2†over left index finger.
(12) Abrasion red in colour 1†x 1/2†over left side of neck.
Dr. N.L. Parmal (PW/11) also deposed that all incised wounds were caused by hard and sharp object and remaining injuries were caused by hard
and blunt object and duration of injuries was within four hours from the examination. Dr. A.K. Jain (PW/10), who conducted the autopsy of dead body
of deceased Bhagirath next day on 17/06/07 also found the same injuries on the dead body of Bhagirath as found by Dr. N.L. Parmal (PW/11) at the
time of his examination, except one additional injury (contusion) which he found back side of head of the deceased. He also found that the left parietal
bone, occipital bone, upper part of tibia, fibula bone and radio ulna bone of left hand were fractured and bone of his right hand was also fractured. Dr.
A.K. Jain (PW/10) further deposed that in his opinion deceased died due to coma and syncope, which was caused due to excessive bleeding from the
injuries sustained by him in vital parts of his body. Duration of death was within 24 hours from the postmortem. So, from the statements of these
witnesses it is proved that Bhagirath died on 16/07/07 due to injuries sustained by him at the time of incident.
Dr. N.L. Parmal (PW/11) also deposed that on 16/07/07 he also examined injured Rajal Bai (PW/1) and found one contusion size 5’’ x
1’’ in her back, which was caused by hard and blunt object and the injury was simple in nature. His statement is also corroborated from report
(Ex.P/23). From his statement it is also proved that at the time of incident Rajal Bai (PW/1) also sustained injury, which was caused by hard and blunt
object like stick.
Learned counsel for the appellants also submitted that from the statements of Dr. N.L. Parmal (PW/11), who examined the deceased soon after
the incident and Dr. A.K. Jain (PW/10) who conducted autopsy of the deceased and the statement of Dr. Pradeep Gupta (PW/13) it is clear that the
alleged incident occurred on 16/06/07 at 12:00 P.M., while deceased Bhagirath died at 7:30 P.M and Dr. A.K. Jain (PW/10) also deposed that
Bhagirath died due to coma and syncope, which was caused due to excessive bleeding from the injuries sustained by him, which shows that Bhagirath
could have been saved if proper medical aid was made available to him. So, it cannot be said that Bhagirath died due to injuries inflicted by the
appellants. But this arguments has no force. Explanation-2 of Section 299 of IPC provides that “Where death is caused by bodily injury, the person
who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death
might have been preventedâ€.
On the point that whether the injuries sustained by the deceased Bhagirath were caused by appellant Gangaram by axe and appellant Bijendra and
co-accused Manoj by sticks and appellant Gangaram also assaulted Rajal Bai by stick, Rajal Bai (PW/1) eyewitness of the incident deposed that on
the date of incident at 12:00 P.M. she and her husband Bhagirath were at their home situated at village Dharampuri. Appellant Gangaram armed with
axe and Bijendra and Manoj armed with stick came there and abused her husband Bhagirath and asked him not to go to the fields and when Bhagirath
objected to the abuses being hurled by them, Gangaram assaulted him by axe and Bijendra and Manoj assaulted him by stick. Deceased Bhagirath
tried to escape from the spot, but appellant Gangaram inflicted axe blow on his head and Bhagirath fell down. Manoj and Bijendra also assaulted him
by stick. When she tried to rescue him, Gangaram took stick from Bijendra and assaulted on her back. In the incident her husband Bhagirath sustained
injuries on his head, chin and legs. Her statement is also supported by the statement of Devkaran (PW/2) other eyewitness of the incident and also
corroborated by the dying declaration (Ex.P/24) of the deceased Bhagirath recorded by G.S. Sengar (PW/14) at PHC, Siddique Ganj and was proved
by that witnesses and also by the statement of Prakash Kumar (PW/5), who too deposed that on hearing the news that appellants and Manoj had
assaulted Bhagirath and that he was admitted at Siddiqueganj Hospital, he went there and saw injuries on the body of Bhagirath. At that time
Bhagirath told him that appellants Gangaram & Bijendra and co-accused Manoj assaulted him due to dispute about land. He also told him that
Gangaram assaulted him by axe and Manoj and Bijendra by stick.
In this regard prosecution story is also supported from the circumstantial evidence collected by S.N. Pandey (PW/12), who deposed that during
investigation on 17/06/07 he arrested Gangaram and Bijendra and prepared arrest memo (Ex.P/7 & Ex.P/8) respectively. On the information of
Gangaram and Bijendra he seized one axe and one stick (Article-C & D) from their possession and prepared seizure memo (Ex.P/9 & Ex.P/10) and
information memo (Ex.P/11 & Ex.P/12) respectively. He also deposed that when he arrested Bijendra, he was wearing blood stained shirt, so he
seized that shirt (Artical-E) and prepared seizure memo (Ex.P/13) and sent that article to Forensic Science Laboratory, Bhopal for chemical
examination along with letter (Ex.P/27), from where report (Ex.P/22) was received. In the report it was mentioned that blood stains found on the axe
(Article-C), stick (Article-D) and shirt (Article-E) were of human blood. Appellant did not give any explanation in this regard. From that evidence, it
appears that appellants and co-accused Manoj inflicted those injuries to Bhagirath at the time of incident.
Although appellant took the defence that injuries sustained by deceased Bhagirath were caused due to falling from above the roof of the hut and
also produced Harku Bai (DW/1), Haricharan (DW/2) as a defence witnesses and appellant Gangaram as (DW/3) also gave his statement. But their
statements do not appear to be correct in this regard. Appellants did not give any suggestion to any of the prosecution witnesses in their cross
examination that Bhagirath sustained injuries due to falling from top of the hut. Appellants also did not seek any explanation from Dr. NL. Parmal
(PW/11) who examined deceased Bhagirath soon after the incident and from Dr. AK. Jain (PW/10) who conducted the autopsy of the dead body of
Bhagirath that whether the injuries sustained by Bhagirath could come due to fall. Even in the report (Ex.D/5) lodged by the appellant Gangaram soon
after the incident, which was also produced by appellants in their defence, it is not mentioned that Bhagirath sustained injuries due to fall. So the
defence of the appellant that Bhagirath sustained injuries due to fall seems afterthought, which cannot be believed.
Appellant Gangaram also deposed that at the time of incident he was at his house and adjusting the Kavelu of his hut, deceased Bhagirath came
armed with luhangi stick in a drunken state and started assaulting him by stick. When his son Manoj came to rescue him, he assaulted him by stick too.
In this regard his statement is also corroborated by the FIR (Ex.D/5) lodged by him soon after the incident which was in turn proved by S.N. Pande
(PW/12), who wrote this report and also from the MLC report (Ex.D/3 and Ex.D/4) proved by AK. Jain (PW/10). A perusal of (Ex.D/3), injury
report of co-accused Manoj shows that he sustained following external injuries:-
(i) Lacerated wound size 1½†x 1/2†x bone deep over right parietal region of head, margin irregular, clotted blood also present.
(ii) Lacerated wound size 1/2†x 1/2†x bone deep, 1’’ away from injury No.1, margin irregular, clotted blood also present.
(iii) Lacerated wound 1’’ x ½’’ x bone deep left side of parietal region, clotted blood also present.
(iv) Contusion size 1†x ½†over upper 1/3rd part of right arm.
(v) Contusion size ½’’ x ½’’ over lower 1/3rd of right forearm.
(vi) abrasion with swelling size ½’’ x ½’’ over right wrist.
It is also mentioned in the report that all injuries were caused by hard and blunt object and duration of the injuries was within four hours from the
examination. Injury Nos. 5 & 6 were simple in nature and he also advised for x-ray to know the nature of injury Nos. 1 to 4.
From perusal of Ex.D/4 injury report of appellant Gangaram it appears that Gangaram sustained following external injuries:-
(i) Abrasion size ½’’ x ½’’ over middle of right forearm.
(ii) Swelling size ½’’ x ½’’ x ½’’ over left eyebrow, red blue in colour.
(iii) Abrasion size 1’’ x 1’’ over left side of neck.
It is also mentioned in the report that all injuries were caused by hard and blunt object and were simple in nature. The duration of the injuries was
within four hours from the examination.
This shows that appellant Gangram sustained three injuries of hard and blunt object on his neck, left eyebrow and left forearm and co-accused
Manoj sustained six injuries of hard and blunt object, out of which three on his head and remaining on his hand and those injuries were caused at the
time of incident.
Hon’ble Apex Court in the case of Lakshmi Singh v. State of Bihar, AIR 1976 SC 2263 held in a murder case, the non-explanation of the
injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the
Court can draw the following inferences:
(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version:
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their
evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the
prosecution case.
Hon’ble Apex Court in the case of Thakhaji Hiraji v. Thakore Kubersing Chamansing and Ors., [2001] 6 SCC 145 held that “it cannot be
held as a matter of law or invariably a rule that whenever accused sustained an injury in the same occurrence, the prosecution is obliged to explain the
injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the person of
the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions : (i)
that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in
question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the
defence gives a version which competes in probability with that of the prosecutionâ€.
A three Judges Bench of Hon’ble Apex Court in Vijayee Singh and Ors. v. State of U. P., 1990 Cri LJ 1510 held that failure of the
prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at
any rate not wholly true. But where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the
mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole
case. Much depends on the facts and circumstances of each case.
In this case too, although all injuries sustained by appellant Gangaram and co-accused Manoj are simple in nature as there is no evidence on record
to show that they sustained any bone injury due to that assault. But from the report it is clear that Gangaram sustained one injury in his neck, one on
his eyebrow and Manoj sustained three injuries in his head.
The neck and head are vital parts of the body so it can not be said that injuries are so simple that prosecution is not bound to give any explanation
of those injuries. While Devkaran (PW/2) eye witnesses of the incident did not give any explanation that how appellant Gangaram and co-accused
Manoj sustained those injuries. On the contrary he deposed that he did not see that appellant Gangaram and co-accused Manoj also sustained injuries
in the incident. So it can be inferred that Devkaran (PW/2) suppressed the genesis of the incident and gave false statement on material point.
Although, Rajalbai (PW/1) also in her Court statement did not give any explanation as to how appellant Gangaram and co-accused Manoj sustained
injuries, but it also appears that appellants did not seek any explanation from Rajalbai (PW/1) in her cross-examination regarding the same. So only on
the basis that Rajalbai (PW/1) in her Court statement did not give any explanation as to how Gangaram and co-accused Manoj sustained injuries, her
statement can not be discarded as a whole. But at the same time, it also appears that she also did not give the full true version of the incident and
correct information regarding how the incident began.
So on the point that how appellant Gangaram and co-accused Manoj sustained injuries, the statement of Gangaram that at the time of incident
deceased Bhagirath assaulted Gangaram by stick and when his son co-accused Manoj came to rescue him he also assaulted Manoj appears to be
more probable.
Provisions regarding private defence in the Indian Penal Code in short as thus:-
Under Section 97 of IPC every person has a right, subject to the restrictions contained in Section 99 of IPC, to defend his own body, and the body of
another person, against any offence affecting the human body. Under Section 99 the right of private defence in no case extends to the inflicting of
more harm than it is necessary to inflict for the purpose of defence. Under Section 100 of IPC, right of private defence of the body extends to causing
death if the offence which occasions the exercise of such right is an assault which reasonably causes an apprehension of death or grievous hurt,
amongst others. Under Section 101 of IPC, save as provided by Section 99, the right extends to the voluntary causing to the assailant of any harm
other than death. Under Section 102 of IPC the right once available continues as long as an apprehension of danger to the body continues. When the
apprehension of danger has ceased and yet a person continues his attack, he exceeds the right of private defence.
Although appellants did not take the defence that they had inflicted injuries on deceased Bhagirath in their private defence. In this regard they
neither gave any suggestion to prosecution witnesses in their cross-examination, nor took that plea in his examination under Section 313 of Cr.P.C..
Even appellant Gangaram in his statement did not depose that he inflicted the injuries on deceased Bhagirath in exercise of his right of private
defence. But Hon’ble Apex Court in the case of Munshi Ram & Others v. Delhi Administration 1968 AIR 702 held it is well-settled that even if
an accused does not plead self defence, it is open to the Court to consider such a plea if the same arises from the material on record. Hon’ble
Apex Court in the case of Darshan Singh Vs. State of Punjab & Anr. (2010) 2 SCC 333 held:
The following principles emerge on scrutiny of the following judgments:
(i) Self-preservation is the basic human instinct and is duly recognised by the criminal jurisprudence of all civilised countries. All free, democratic and
civilised countries recognise 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 coterminous 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 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.
From the above judgements of the Hon’ble Apex Court it is clear that even if an accused does not plead self defence, it is open to the court to
consider such a plea if the same arises from the material on record. In the case at hand, the plea of right of private defence arises on the basis of
materials on record. As far as onus is concerned, we find that there is ocular and documentary evidence to sustain the concept of preponderance of
probability. It can not be said that there is no material on record or scanty material to discard the plea.
In considering a plea of self defence it is not the triviality of the injuries inflicted upon the accused that has to be taken into consideration, but the
question which requires consideration is as to whether the attempt made on the accused is one which reasonably causes the apprehension of death or
grievous hurt in the mind of the accused. In this case from the statements of appellant Gangaram and the FIR (Ex.D/5) lodged by him soon after the
incident and the injury report of appellant Gangaram and co-accused Manoj (Ex.D/3 & Ex.D/4) it is clearly established that at the time of incident, co-
accused Manoj sustained as many as six injuries by hard and blunt object, out of which three were on his skull and appellant Gangaram sustained three
injuries caused by hard and blunt object, out of which one injury was on his eyebrow and another was on his neck, which are vital parts of the body.
So, looking to the injuries sustained by appellant Gangaram and his son co-accused Manoj in the incident, it can be assumed that appellants acted in
exercise of their right of private defence. Although appellant Bijendra did not sustain any injury in the incident, but the right of private defence need
not necessarily be exercised for the defence of one's own person; it can be exercised for the defence of the person of another one.
Having established that right of private defence was available to the appellants, the question now remains to be seen is, whether the appellant
exceeded the right of private defence or not ?
Apellant Gangaram in his statement has not even stated a word that because of infliction of blows by stick he apprehended that he or his son co-
accused Manoj might sustain grievous injuries or that such blows by deceased might cause their death and as a consequence thereof he inflicted axe
blow on the head and other body part of deceased. Appellants in their examination under section 313 of Cr.P.C. also, have not stated that they
apprehended danger to their life or the life of co-accused Manoj.
As stated by Rajalbai (PW/1), appellant Gangaram was armed with an axe and appellant Brajendra and co-accused Manoj armed with stick had
inflicted injuries to deceased Bhagirath. Dr. A.K. Jain (PW/10) who conducted the autopsy of dead body of deceased Bhagirath found as many as 13
injuries on his body. He also found that the left parietal bone, occipital bone, upper part of tibia fibula bone and radio ulna bone of left hand of
deceased Bhagirath were also fractured and bone of his right hand was also fractured. So on the evidence that has been adduced from both the sides,
in view of the fact that the deceased was alone, and the accused were three and even then for disarming the deceased or to control him they inflicted
four injuries on his head. And keeping in mind that the right of private defence is available for protection against apprehended unlawful aggression and
not for punishing the aggressor for the offence committed by him, and the right of private defence in no case extends to the inflicting of more harm
than it is necessary to inflict for the purpose of defence. From the act of appellants it is evident that the accused-appellants have applied much more
force in retaliation than was necessary, reasonable or justified, which has resulted into death of Bhagirath. Therefore, it must be held that the
appellants have exceeded the right of private defence.
Section 300 of IPC Exception 2 provides that “Culpable homicide is not murder if the offender, in the exercise in good faith of the right of
private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such
right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defenceâ€.
Learned counsel of the appellants also submitted that from the prosecution evidence it was apparent that the appellant Gangaram assaulted
deceased Bhagirath by axe and caused fatal injury on his head. While, appellant Brajendra assaulted deceased by stick and only caused injuries in his
hands and legs. So it can not be said that appellant Bijendra also exceeded the right of private defence given to him by law. These arguments have
some force in a case where injuries are caused in self defence. If any one of the accused exceeds the right of private defence, then the other accused
can not be held vicariously responsible.
Hon’ble Apex Court in the case of State of Rajasthan Vs. Manoj Kumar, 2014(5) SCC 744, where the right of private defence had been
exceeded by only one of the accused, held that guilt of each of the accused has to be dealt with individually.
Although, Dr. A.K. Jain (PW/10), who conducted autopsy of the deceased also stated that he found one injury of hard and blunt object on back
side of head of deceased Bhagirath size 5’’ x 3’’ and he also stated that due to that injury occipital bone and left parietal bone also got
fractured. But, Dr. N.L. Parmal (PW/11) who examined the deceased Bhagirath soon after the incident did not state that he found an injury of hard
and blunt object on Bhagirath’s head. In these circumstance this injury can be a result of the other three injuries caused to Bhagirath by axe. Even
from the statement of eyewitnesses of the incident i.e. Rajalbai (PW/1) and Devraj (PW/2) and from the dying declaration of the deceased Bhagirath
(Ex.P/22) it did not appear that said injury was caused by the appellant Bijendra. Rajalbai (PW/1) and Devraj (PW/2) only deposed that in the incident
appellant Bijendra and co-accused Manoj assaulted deceased Bhagirath by stick. They did not specifically state that on which part of his body did
Brijendra inflict injury. In the dying declaration of the deceased Bhagirath (Ex.P/22) also he only mentioned that appellant Bijendra and co-accused
Manoj assaulted him by stick. It is specifically not mentioned as on which body part did Bijendra inflict injuries.
Except for the injury which Dr. A.K. Jain (PW/10) found on Bhagirath’s head all other injuries from the hard and blunt object were on
Bhagirth’s hand and legs as mentioned in deceased Bhagirath’s MLC report (Ex.P/22) and postmortem report (Ex.P/21) given by Dr. N.L.
Parmal (PW/11) and Dr. A.K. Jain (PW/10) respectively. But Dr. A.K. Jain (PW/10) also found fracture in his hand upper part of tibia fibula bone
and radio ulna bone of left hand and also suffered a fracture in his right hand.
So we are of the considered view that the act of appellant Gangram who inflicted three injuries of Axe (A sharp object) on Bhagirath’s head
and exceeded his right of private defence comes under Section 304 Part I of IPC and the act the applicant Bijendra who inflicted grievous injuries only
on Bhagirath’s hands and legs comes under Section 325 of IPC.
We are of the considered view that learned trial Court committed mistake in finding appellants guilty for the offence punishable under Section 302
in alternate Section 302/34 of IPC. So, the conviction of appellant Gangram is altered from Section 302 in alternate Section 302/34 of IPC to Section
304 Part I of IPC and appellant Bijendra from Section 302 in alternate Section 302/34 of IPC to Section 325 of IPC and conviction of appellants for
the offence under Section 323/34 of IPC regarding assaulting Rajalbai is also affirmed.
As regards the conviction of appellants under section 506 Part II of IPC is concerned from Para-45 of trial Court’s judgements, it appears that
learned trial Court only on the assumption that Rajalbai sustained injury and her husband Bhagirath sustained many injuries in the incident, so Rajalbai
would have been frightened found appellants guilty for the offence punishable under Section 506 of IPC. But that finding of the trial Court also do not
appear to be correct. Section 503 of IPC reads as thus;-
“Whoever, threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is
interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act
which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidationâ€.
While from the record it appears that neither injured Rajalbai nor Devkaran another eyewitness of the incident stated in their Court statement that
appellants threatened Rajalbai during incident. Learned trial Court without any cogent evidence in this regard wrongly found appellants guilty for the
offence punishable under section 506 of IPC.
Hence, this appeal is partly allowed and appellants are acquitted from the charge of the offence punishable under Section 506 Part II of IPC and
sentence given by the trial under this Section is also set aside. However conviction of appellants under Section 323/34 of IPC and sentencing them
R.I. for six months is hereby maintained and conviction of appellant Gangaram is converted from Section 302 in alternate Section 302/34 of IPC to
one under Section 304 Part I of IPC and he is sentenced to suffer rigorous imprisonment for 10 years (Ten years) and conviction of appellant Bijendra
is converted from Section 302 in alternate Section 302/34 of IPC to one under Section 325 of IPC and he is sentenced to suffer rigorous imprisonment
for 5 years (Five years). The fine as imposed by the trial Court is maintained. Both the sentences shall run concurrently.
The appellants would be entitled to get benefit of Section 428 of the Code of Criminal Procedure. Appellant Bijendra is on bail, so he is directed to
surrender before trial on 05/09/18 and the trial Court is directed to send him to jail for serving the remaining part of jail sentence. If appellant Bijendra
does not surrender as directed above, the trial Court shall take action according to law for the arrest of appellant Bijendra.
The appeal is disposed of accordingly.