Joginder Singh and another vs The State of Haryana

C.G. Suri, J.—Joginder Singh aged 24 years and his father Man Singh aged 54 years, residents of village Chakerian, were tried jointly by the Sessions Judge, Hissar, on a charge u/s 302 read with section 34 of the Indian Penal Code for the murder of their co-villager Jangir Singh on the evening of 4th May, 1971 at about 7.30 P.M. inside the appellants house in the abadi of the village. Both of them have been convicted and Joginder Singh has been sentenced to death while his father has been awarded the lesser penalty of life imprisonment. We have before us an appeal, Criminal Appeal No. 57 of 1972, filed jointly by the two accused as also the Murder Reference No. 7 of 1972 for the confirmation of the death sentence u/s 374 of the Code of Criminal Procedure. As both these proceedings arise out of the same trial they have to be disposed of by one and the same judgment.

An eye-witness account of the occurrence was given at the trial by two brothers of the deceased, one of whom, namely, Balbir Singh P.W. had lodged the first information report. Exhibit P.W. 10/1, at police post Kalanwali at about 10.00 P.M. the same day. The scene of the crime is at a distance of about four miles from the said police post. The case was registered on the basis of this report at police station Bara Gudha, having jurisdiction in the area, at about 11.20 P.M. the same night. The police station is at a distance of about ten miles from village Chakerian. The special report had reached the Judicial Magistrate at Dabwali, about 22 miles away, at 10.00 A.M. the next morning (5th May, 1971). The dead body had reached the mortuary at Sirsa 17 miles away, at 10.20 A.M. and the post-mortem examination had been carried out within an hour or so.

The motive for the crime, according to the prosecution, was that Lal Singh father of the deceased and the prosecution eye-witnesses owned land in villages Kalanwali and Chakerian. Their land in Chakerian was irrigated by canal water. They had a common distribution point (mogha) and water-course (khal) with Man Singh appellant. As the land of the deceased and his brothers in village Chakerian was at a higher level, they had difficulty in availing of their turn of water. During the period of their turn the water had a tendency to flow into the fields of the right holders Man Singh appellant and Jowala Singh who had their turns before the deceased. Lal Singh, the father of the deceased, had made an application Exhibit P.W. 6/1, dated 17th September, 1970, for the construction of a pacca naka at that point in the common water-course from which the water could be diverted to the deceased''s fields. All this would be apparent from the sketch Exhibit P.W. 6/4 and other documents produced by the Ziledar of the Canal Department who has been examined as a prosecution witness in this case. Jowala Singh who was one of the land-owners affected by Lal Singh''s application. Exhibit P.W. 6/1, for the construction of the pacca naka, had answered the summons issued by the Ziledar and had appeared before him in the village on 17th February, 1971, vide copy Exhibit P.W. 6/S.N. 2. Jowala Singh had no objection to the construction of the pacca naka in accordance with the wishes of Lal Singh and his sons including the deceased. On the said hearing Man Singh had failed to appear before the Ziledar inspite of notices having been sent to him. The copy of the order, recorded by the Ziledar on 17th February, 1971, is printed on page 26 of the paper-book and the Ziledar states that no further proceedings or enquiry had been held in this case until the date of the occurrence (4th May, 1971). Balwinder Singh, another son of Man Singh appellant, had appeared before the Ziledar on 23rd May, 1971 and had expressed no objection to the construction of the pacca naka as requested by Lal Singh''s son Balbir Singh P-W. This application was ultimately granted five or six months after Jangir Singh''s murder. The suggestion according to the prosecution is that the appellants were interested in delaying the construction of the pacca naka as it would have deprived them of the extra-flow of water during the time fixed for Lal Singh''s turn. Jowaia Singh land-owner, who could also have benefited by the deceased''s inability to utilise his turn of water, had not shown any interest in this extra-flow of water and had made a statement before the Ziledar on 17th February, 1971 that he had no objection to the construction of the pacca naka This motive has been amply substantiated by the testimony of the Ziledar of the Canal Department and the official records proved by him at the trial.

The assault, according to the prosecution witnesses Balbir Singh and Hamir Singh, the brothers of the deceased, was motivated by this dispute over Lal Singh''s application for the construction of a pacca naka. Balbir Singh states that he had enquired from Man Singh appellant and the latter had failed to agree. Both the appellants had warned the deceased and his brother Balbir Singh about two months before the occurrence that it was not wise on their part to press the application for the construction of the pacca naka and that the consequences could be quite serious. Jangir Singh deceased had argued that their lands remained unirrigated for want of a pacca naka.

On the date of the occurrence (4th May, 1971) P.Ws. Balbir Singh and Hamir Singh were returning from their fields at about 7.30 P.M. During the day they had been sowing cotton and were bringing back the carrel. Jangir Singh deceased was also returning with his cattle from the village pond at about the same time and was 15/16 karams ahead of his brothers. Joginder Singh appellant''s house fills on the way to the house of the deceased and his brothers and the distance between the two houses is 80/90 karams. Man Singh and Joginder Singh appellants were standing opposite the latter''s house and when Jangir Singh came near, Man Singh exhorted his son Joginder Singh to teach Jangir Singh a lesson for trying to have a pacca naka. Man Singh caught hold of Jangir Singh by his long hair and Joginder Singh held Jangir Singh in his arms from the front side. Both the appellants lifted Jangir Singh from the ground and took him inside the court-yard of Joginder Singh''s house after going through the outer door (darwaja). Leaving their camel, P.Ws. Balbir Singh and Hamir Singh raised an alarm and came in front of Joginder Singh''s house. Man Singh was holding the deceased down to the ground by the latter s long hair and Joginder Singh appellant was seen giving knife blows to Jangir Singh who was lying on the ground. The two eye-witnesses saw about a dozen knife blows given to Jangir Singh in this position. When the P.Ws. tried to enter the house they were threatened by Man Singh who is a gun licensee. The P.Ws. withdraw out of fear and Man Singh closed the door of the house from inside. The P.Ws. were returning to their house when they heard Joginder Singh shouting from the roof of his house that Jangir Singh had been murdered and that he would like to see as to who would have the courage to come to take his dead body. After informing his father at the house, Balbir Singh P.W. reached police post Kalanwali and lodged the report. Exhibit P.W. 4/1 at 10.00 P.M. Having recorded this report, A.S.I. Niranjan Dass sent it with a constable to police station Bara Gudha for registration of the case. He himself came to the spot with three constables and the informant and carried out the usual investigations. A search was kept up for the accused at a number of places until they were ultimately arrested on the receipt of secret information near Kalanwali canal minor on 7th May, 1971. Joginder Singh appellant was wearing a shirt Exhibit P. 7 and chadar P. 8 and as these clothes had stains of blood, these were taken into possession. Joginder Singh''s interrogation the same day led to the recovery of the blood-stained knife Exhibit P. 1 form underneath a cow dung heap in the court yard of his house, after Joginder Singh had made a disclosure statement. P.Ws. Ramji Lal and Sarwan Singh were present at the time of the Joginder Singh''s interrogation and recoveries. The Serologist''s report establishes that the blood on the clothes P. 7 and P. 8 and knife P. 1 was of human origin. Joginder Singh had some simple injuries on his person and he was medically examined by a doctor at Kalanwali at the instance of the police at 5.00 P.M. on 7th May, 1971. The doctor observed a simple incised wound on Joginder Singh''s right little finger and an abrasion on the front of the neck with a firm scab. The duration of the injuries was from 48 to 72 hours. In the doctor''s opinion the incised wound on the right little finger could be sustained while Joginder Singh was striking anyone with a knife. Both the injuries on his person could also have been self suffered or self-inflicted.

The doctor who had carried out the post-mortem examination of Jangir Singh''s dead body had observed as many as twenty injuries, seventeen of these being stab wounds and the remaining three being incised wounds. The pictorial diagram Exhibit P.C./1 shows that most of these injuries were the chest, abdomen and back of the deceased. The face and head had also been injured. The injury which was described to be individually sufficient to came death in the ordinary course of nature was a stab wound on the left side of Jangir Singh''s chest, two inches from the nipple The weapon of Jangir the chest cavity. There was a hole in the left pleura outer part of left lung and pericardium. Left ventricle of the heart peritoneal and Pericardium cavities had also been punctured. Death was due to shock and haemorrhage resulting from the injury to the heart. It may appear to be the common case of the parties that the deceased had sustained these injuries with the knife Exhibit P. 1 at Joginder Singh''s hands. There is also no dispute as regards the time and venue of the occurence.

The defence version, according to the suggestions made during the cross-examination of the informant Balbir Singh P.W. , was that one of the buffaloes of the deceased had entered Joginder singh''s house and the deceased had followed the animal inside Joginder Singh wanted to drive out the buffalo and protested to the deceased why he had allowed the animal to come in. This led to an exchanre of hot words between the two and Jangir Singh attacked Joginder Singh appellant with the knife Exhibit P. 1. Joginder Singh ran towards the deorhi of his house to save his life and Jangir Singh attacked Joginder Singh in the deorhi with the knife Exhbit P. 1 Joginder Singh evaded the blow and received the incised wound on the little finger of his right hand. He then succeeded in snatching the knife from the deceased but the latter threw him on the ground and pressed Joginder Singh''s neck with his hand Joginder Singh gave knife blows to the deceased to save himself while he was held down in that position. When the police arrived Joginder Singh was found present in his house. The police apprehended Joginder Singh and look the knife Exhibit P. 1 into possession which was lying at the scene of the crime.

This defence version was modified during Joginder Singh''s examination u/s 342 of the Code of Criminal Procedure. The reply to the penultimate question at the trial as to whether he had anything else to say was in the following words:-

I am innocent. on the day of occurrence, the buffalo of Jangir Singh deceased entered my house at about 6.45 P.M and hit my cattle which were inside I drove the buffalo out of my house and protested to Jangir Singh who was outside the door of my house. Jangir Singh told me that he would make me to see to the damage. He chased me and I stood in the Deorhi inside the door Jangir Singh took out a knife and pounced upon me. I raised my hands. The knife injured my right hand, but I succeeded to catch hold of it from him. He threw me on the ground. He left the knife and began to strangulate me with his hands. In my defence I gave him blows but I do not know the number as I became unconscious. I am suffering from Asthma. After one hour the police came and arrested me.

Man Singh appellant had denied that he was in any way involved in this occurrence. He is living separate from his co-appellant in spite of the of the close blood relationship. On 2nd July 1970 he had filed a complaint against Joginder Singh u/s 107/151 Criminal Procedure Code as he was apprehending danger to his life at the hands of his son. During the enquiry by the police Joginder Singh got ready to fight with his father as the latter was refusing to pay him money for purchasing intoxicants The police report was that Joginder Singh had attacked Man Singh in the presence of the police officers and should he directed to furnish bons for keeping the peace in the sum of Rs. 20,000/. His father Man Singh was cited as the main prosecution witness against Joginder Singh. Joginder Singh had also stated in answer to question No. 7 put to him during his examination u/s 342 Criminal Procedure Code that he was not on good terms with his father.

A draftsman who had prepared the plan Exhibit D.W. 1/1 on the pointing out of appellant Joginder Singh s brother Balwinder Singh was examined as a defence witness. The plan was intended to show that the path that the deceased was described to have followed while coming back from the pond was 20 karams longer than an alternative path. This plan was prepared without notice to the other party and in their absence. The draftsman examined in defence pleads ignorance as to whether the alternative route is not a thoroughfare or that it passes through privately owned residential plots. Even otherwise a difference of 20 karams in a total distance of 300 karams may not induce a person to follow the shorter route if it involves a trespass into private property. The draftsman examined in defence may appear to have prepared the plan at the instance of Joginder Singh''s brother without going to the spot since he does not know whether the shorter route is at all a thoroughfare or has any private plots situated in between.

One lone circumstance may seem to show that P.Ws., Balbir Singh and Hamir Singh had not witnessed the occurrence with their own eyes. They are, however, living in the same vicinage and could have reached the scene of occurrence within a short time. The arrival of the police, admittedly within an hour, shows that these P.Ws. had set things moving without any delay. These witnesses and the deceased were returning to their house from different places and it may appear to be rather too good a coincidence that they reached Joginder Singh house at about the same time. Moreover, these two witnesses would not have allowed their brother to have been bodily lifted and carried inside the house of an enemy in this manner, since there was a strong motive for his being put to serious bodily harm inside that house. This would have been too apparent to the brothers of the deceased as threats were said to have been held out sometimes earlier by the appellants. The prosecution story is that until Jangir Singh had been carried inside Joginder Singh''s house the appellants had not flourished or displayed any gun or knife. Balbir Singh has no doubt stated that they had a camel with them but it is not clear from his statement whether the two witnesses were riding the animal or leading it by the rope. All that is said by Balbir Singh P.W. is that leaving the animal he and his brother had raised an alarm and had come in front of Joginder Singh''s house. It is not his case that they were riding the camel or that coming down from the back of that weired looking animal had taken them any time. One could assume that having put in a hard day''s work in the fields the two brothers would prefer to have a ride rather than walk the distance of about a mile between their house and the fields. If these brothers had been riding the animal that could explain why they could not at once come to their brother''s rescue. It would take time to induce such an animal to sit down from the standing position. The process involves the half folding of the fore legs followed by the folding of the hind legs and then complete subsidence to the ground from a ''top of the word'' position The experience of getting down from a camel''s back gives one that rock''n roll feeling and the sitting down may appear to be an uncomfortable feat and a painful experience for the animal as well. It is however, not the prosecution case that he deceased s brothers could not come to his help in time because they were on the camel''s back. The conduct of the eye-witnesses in not coming to their brother''s immediate held may also appear to be rather unnatural. The single circumstance which gives these witnesses away, however, is that the inquest report Exhibit PW. 2/2 says in column No 22 that the deceased''s turban had stayed put on his head inspite of the alleged bodily lifting and forcible carrying away of the deceased inside Joginder Singh''s house. The deceased could see that he was being carried inside the house of an enemy who had been holding out threats of bodily harm. He was sure to have put up a violent resistance to his being carried inside the house and the violence would have been all the greater if the deceased had seen that his brothers were not raising even their little fingers to come to his help. It was even realised by the deceased''s brothers that such a violent resistance would ordinarily loosen the turbans of the parties to the grappling or scuffle. They had actually stated during investigations that the deceased''s turban had fallen from his head and this alone could have made possible the pulling of his long hair by the appellants. As the story about the falling of the turban was false the witnessess had to change their statements from time to time as to where exactly the turban had fallen. The eye-witnessess were confronted with their earlier statements made before the police and the committing Magistrate to bring out the discrepancies on the point.

If the turban that had stuck on to the deceased''s head throughout the occurrence has been taken as a circumstance to disbelieve the prosecution story about the alleged bodily lifting and forcible abduction of the deceased by the appellants then the same circumstance would show that the defence story with regard to the scuffle and grappling between the deceased and Joginder Singh appellant over the possession of the knife could not be true. This would be further so if the deceased had, after being deprived of the knife, been successful in catching hold of Joginder Singh''s neck and pinning him down to the ground. Joginder Singh had also realised that even if the defence version could be believed upto a certain point, it was not going to be believed as regards the later part comprising of the causing of as many as twenty injuries with a knife from underneath the deceased. That is why the defence version peters out at this stage into assumed senselessness. The defence version is obviously false because if Joginder Singh had been putting up such an effective struggle and resistance from underneath the deceased he was sure to have had Some scratches or abrasions on his own back. There was no suggestion during the cross-examination of the doctor that all the twenty injuries found on the chests, abdomen, back and head of the deceased could have been caused by a person lying on the ground under the deceased. The medical evidence on the other hand is that both the simple injuries of Joginder Singh could have been self-suffered or self inflicted and the number of injuries on the deceased''s back may seem to suggest that he had been securely held in a helpless manner by another person while the man wielding the knife had caused these injuries in the deceased''s back. The large number of injuries on the abdomen and chest could have been caused while the deceased was lying supine on the ground. The deceased could not have been very aggressive or violently active while he was suffering these injuries. The turban that had stayed put on his head seems to show that after sustaining a few injuries, he had slumped to the ground and was given the remaining injuries while he was lying inert.

The circumstantial and the medical evidence and the other material on record, therefore, leave no doubt in our mind that both the versions are substantially incorrect if not altogether false. The fact, however, is admitted that Jangir Singh met with his death at Joginder Singh''s hand and that the weapon used was the knife Ex. P. 1. It may also appear to be the common case of the parties that Jangir Singh''s dead body was found lying in the court-yard or deorhi of Joginder Singh''s house near the main outer door. Joginder Singh had also injuries on his person and whether these had been sustained by him during the occurrence or had been self-suffered, these would establish his active participation in the occurrence leading to Jangir Singh''s death. The appellants had a strong motive for the crime. Joginder Singh''s failure to explain these incriminatory circumstances, namely, the presence of the dead body inside his house and the unexplained injuries on his person could have lead to his conviction. Joginder Singh had, therefore, out of dire necessity, to enter upon an explanation of these incriminating circumstances whether or not he was willing to do so. In spite of his best efforts to explain away these circumstances he may appear to have failed miserably in the attempt. The question then arises whether we can convict Joginder Singh on the basis of the incriminating parts of his statement made u/s 342 Criminal Procedure Code, rejecting at the same time the exculpatory parts of that statement in the light of the circumstantial and medical evidence and other material available on record.

Shri Mahajan, the Learned Counsel for the appellants argues, on the authority of some Supreme Court rulings discussed below, that Joginder Singh''s statement u/s 342 Criminal Procedure Code has to be accepted or rejected in its entirety and that it is not open to this Court to separate the inculpatory and the exculpatory portions. If Joginder Singh claims the right of private defence to the extent of causing Jangir Singh''s death we cannot give him only a restricted benefit of that plea even though it may be apparent from the material available on record that the right of self-defence had been grossly exceeded. I find it difficult to subscribe to the view that the Hon''ble Judges of the Supreme Court could have intended to lay down any hard and fast rule of universal application which would compel the subordinate Courts to conclude that a person must be acquitted even when it is known for certain, on the basis of the material on the record, that the person accused has been guilty of an intentional killing of a fellow human being; which in his best attempts, at an explanation of his actions he has failed to justify. No court can close its eyes to the obvious realities of a given situation and if the ultimate decision in some of the cases cited by Shri Mahajan does not support the proposition urged by him the conclusion may appear to be obvious that the Supreme Court had not intended to lay down a proposition of law which was inconsistent with the final decision arrived at in the case. In most of the rulings cited it would be found that the accused was given a restricted benefit of the plea of self-defence even though he had claimed that his right extended to the extreme limit of intentionally killing the deceased. Some of the cases cited before us relate to offences of forgery, criminal breach of trust or recovery of incriminating contrabonds in which there could be no room for raising the plea of the exercise of the right of private defence of person or properly. In such cases no question would arise whether the right of private defence had been exercised or not and there would be no half way house permissible for accepting or rejecting the defence plea in part. Any observations made for the purpose of deciding such cases in which there is no room for the raising of the plea of self-defence cannot possibly be extended to cases in which such a plea can validly be taken.

I would now be dealing with the cited cases in a chronological order and not in the order of seniority or status of the courts. This would help us to form an idea as to how the case law on the subject had developed. The earliest to be cited is a ruling of the Supreme Court in Vijendrajit Ayodhya Prasad Goel Vs. State of Bombay, . That was a case relating to the recovery of rectified spirit from a godown in Bombay. The commodity was defined as an ''intoxicant'' and its possession without permit was an offence under the Bombay Prohibition Act, 1949. The appellant had admitted during his examination u/s 342 Criminal Procedure Code that the godown was in his possession. In view of the admission the prosecution had failed to examine any further evidence concerning the possession of the gowdown. The appellant''s plea taken during the same statement that the rectified spirit had been planted and was found outside the godown was rejected. The appellant''s conviction by the lower Courts for the offence of possession of the rectified spirit was maintained by the Supreme Court and the appeal was dismissed. I do not see how this ruling is of any avail to the appellants in our case. All that the first headnote to this ruling says is that the answers given by the accused during his examination u/s 342 Criminal Procedure Code should be taken into consideration as a whole, ''consideration as a whole'' and ''acceptance or rejection as a whole'' are not synonymous expressions as would be clear from the cases discussed further on in this judgment.

A Division Bench of the Madhya Bharat High Court in Circuit at Indore had then held in Dohairya v. State AIR 1956 M.B. 23 that the admissions of the accused could not be truncated and believed in part and rejected as to the rest. It was found established beyond doubt in that case that the deceased had come to the appellant''s house armed with a deadly weapon like an axe with the intention of beating the appellants and his mother. The mother had run away but the appellant succeeded in snatching the axe from the deceased. After having done so the appellant was found to have given only one axe blow to the deceased which proved fatal. The appellant, had claimed the right of private defence to the extreme limit of causing the death. It was found that the right of self defence did not continue after the deceased had been relieved of the weapon. The Sessions Judge had convicted the appellant u/s 302 Indian Penal Code and had awarded a sentence of life imprisonment. Even though the appellant had pleaded that he had first been beaten by the deceased with the handle of the axe, it was found by the High Court, that there was nothing on record to bear out the story of the beating of the appellant by the deceased. It was observed, however, that because of the apprehension of the danger the appellant could not be expected to have properly modulated his defence in a perturbed state of mind. The High Court, therefore, gave the appellant a restricted benefit of the plea of self-defence by converting the conviction to one u/s 304 Part I and by reducing the sentence to rigorous imprisonment for five years. This case does not, therefore, support Shri Mahajan''s argument for an outright acquittal of Joginder Singh appellant who has admittedly been responsible for Jangir Singh''s death in such a cruel manner without being able to justify the intentional killing of a fellow human being.

The next, in point of time, is the Supreme Court ruling in Narain Singh Vs. State of Punjab, which may seem to fully support Shri Mahajan''s submissions. In that case it was held that the accused''s statement u/s 342 Criminal Procedure Code was primarily directed at explaining the circumstances appearing in the prosecution evidence against the accused and that this statement must be taken or rejected in its entirety. It may, however, appear that the observations were intended to dispose of that particular case on its own facts. This would be obvious from some later rulings of the Supreme Court in which Narain Singh''s case had been cited and duly considered after relevant extracts had been reproduced in extenso. In Narain Singh''s case the appellant''s conviction and sentence awarded by the lower Courts u/s 304 Part II of the Indian Penal Code were set aside and the appeal was allowed. The ruling has, however, been distinguished in later rulings of the Supreme Court and it has been held in these later rulings that the ratio of Narain Singh''s case could be inapplicable to cases with different facts,

One of the two cases mentioned above in which Narain Singh''s case had been considered by the Supreme Court in Nishi Kant Jha Vs. The State of Bihar, . This was no doubt a case in which an extra-judicial confession was under consideration and inculpatory portions of the confession were accepted on a point on which the prosecution had not examined any direct evidence. The exculpatory portion of the extra-judicial confession was found to be not only inherently improbable but was also contradicted by the statement of the accused u/s 342 Criminal Procedure Code. The appellant''s conviction based only on inculpatory portion''s of his confession was held by the Supreme Court to be perfectly valid It was contended by the appellants counsel in that case that if the confessional statement was to be considered at all, it must be taken as a whole and that the Court could not act upon one portion of it while rejecting the other. Narain Singh''s case was one of the three Supreme Court rulings cited in support of this contention. It was observed by the Hon''ble Judge, of the Supreme Court that the proposition so widely stated could not be accepted. The observations in Taylor''s law of evidence that the whole statement containing the admissions must be taken together were only intended to ensure that the inculpatory portions were not read out of their true context. Unless the whole statement was received the true meaning of the part which is taken as evidence against the accused cannot be ascertained. This does not, however, lead to the conclusion that even though the whole statement must be given in evidence all parts of the statement should be regarded as equally deserving of credence. The Courts have to consider under the circumstances of the case as to how much of the entire statement is deemed worthy of belief including as well the facts asserted by the party in his own favour as also those which seem to go against him The discussion of Narain Singh''s case comprised of the brief observation that it did not add any thing which need be taken note of the propositions of law laid down in the cases discussed earlier. The ruling of the Bench comprising of five Hon''ble Judges of the Supreme Court in Nishi Kant Jha''s case may, therefore, seem to imply that inculpatory and exculpatory portions of a confessional statement could be separated and put to a test or scrutiny for all they were really worth on the touch stone of the realities of the case and that it made no difference whether the confessional statement had been made inside or outside the Court or in an attempt to explain the prosecution evidence u/s 342 of the Code of Criminal Procedure. My conclusions are fully confirmed by the next Supreme Court ruling discussed below.

The Supreme Court ruling in Sampat Singh Vs. The State of Rajasthan, is fully applicable to the facts of the case now before us. This was a case of culpable homicide and the main question involved in appeal before the Supreme Court was whether there was evidence justifying the findings that the appellant had exceeded his right of private defence in giving two blows with a jambia to Shyam Singh deceased. It was held that the Court could rely on a portion of the statement made by the accused u/s 342 of the Code of Criminal Procedure and base a conviction thereon in the light of the other evidence examined against him by the prosecution The appellant was charged with murder of Shyam Singh by inflicting two blows with a jambia to the deceased. The appellant had raised the plea that he had caused the injury in the right of private defence of the person of his brother Shyamlal. It was mainly on the basis of the injury statement and the testimony of the doctor that it was concluded by the Court that the right of private defence had been exceeded by the appellant. The inculpatory portions of the statement made by the accused u/s 342 Criminal Procedure Code, taken in the light of the medical evidence, were found sufficient to sustain a conviction u/s 304 Part II of the Indian Penal Code. During the commitment enquiry the appellant had given a version u/s 342 Criminal Procedure Code which was found to be completely at variance with the prosecution case. The same statement had been made at the trial The Sessions Judge found that the incident had taken place substantially in the manner deposed to by the accused and that prosecution story was improbable. It was also found that the deceased had received the fatal injury with a jambia from the appellant while he (deceased) was sitting on the chest of the appellant''s brother: For this finding the Sessions Judge had relied on the statement of the appellant. He, however, disbelieved the defence version that the grip of the deceased on the neck of the appellant''s brother was of such a nature as to lead to an apprehension that the deceased meant to cause the death by strangulation of the appellant''s brother. The appellant was, therefore, found to have exceeded his right of private defence. After quoting certain extracts from Narain Singh''s case, it was observed that the ratio of the ruling cited was not applicable to the facts of the case then before the Hon''ble Judges. The High Court agreed with the Sessions Judge that the genesis of the prosecution story was not acceptable and that the account given by the accused was to be preferred to that of the prosecution. The High Court, however, sifted the evidence for itself and relied on the injuries found on the person of the deceased as going to show that the appellant''s brother had tried to free himself from the clutches of the deceased and that at that stage Sampat Singh appellant had appeared on the scene and finding the deceased sitting on the chest of his brother had tried to force them apart When he found that he could not do this with bare bands he had taken the Jambia from the waist of the deceased and had inflict the two fatal injuries. The version given by the accused with regard to the injuries given by jambia was accepted as correct but the circumstances were found to be more consistent with the infliction of the injuries while the deceased was standing. It may, therefore, appear that the circumstantial and medical evidence were taken into consideration to reject a part of the defence version given by the appellant during his examination u/s 342 Criminal Procedure Code. The Supreme Court was of the view that both the Courts below were justified on the facts of the case in coming to the conclusion that the appellant had exceeded the right of private defence. Nishi Kant Jha''s case (supra) was relied upon to hold that the Courts could rely on a portion of the statement made by the accused u/s 342 Criminal Procedure Code and find him guilty in the light of the other evidence like the injury statement and the doctor''s testimony. The absence of any eye-witness to the actual commission of the crime had not made any material difference when the accused had admitted that he had committed the crime. This by itself was treated as a circumstance which taken in conjunction with other circumstances led the Court in coming to the conclusion that the accused was guilty of the crime imputed to him. The decision in Narain Singh''s case, was distinguished with the observations that it could not apply to the facts in Sampat Singh''s case. Sampat Singh''s conviction and sentence u/s 304 Part II were, therefore, maintained and his appeal was dismissed by the Supreme Court.

The latest Supreme Court case cited by Shri Mahajan is the State of Gujarat and Another Vs. Acharya D. Pandey and Others, etc., , which was under Bombay Public Trusts Act, 1950. The ten respondents had been appointed as trustees of two religious and charitable public trusts under two different schemes framed by the High Court of Bombay Respondent No. 1, the Acharya, was alleged to have withdrawn sums running into five figures on two different occasions for meeting his income tax liability from a certain account. He had reimbursed those amounts on both the occasions after three or four years. The other respondents were alleged to have connived at this embezzlement or temporary mis-appropriation of these trust funds The only witness on behalf of the complainant was the Legal Adviser of the Charity Commissioner who had not given any evidence against respondents No. 2 to 10. No material had been placed before the Court to show that they were the trustees during the crucial period. Respondent No. 1 claimed that the amounts had been withdrawn by him from his private account (Hathu Khata). The prosecution had not examined any evidence whatsoever to show that the account related to any trust funds. The evidence on the other hand was that the Acharya had kept huge sums from his own funds with the trust and was not charging any interest. It was not possible to conclude on the basis of the evidence of the only witness examined by the complainant that any amount belonging to the trust had been withdrawn by the Acharya. Under the circumstances, evidence about the entrustment of the amounts alleged to have been embezzled was missing. One of the essential ingredients of the offence charged remained unproved. In the absence of any evidence with regard to the very basis of the charge the question of believing or disbelieving the accused''s statement u/s 342 Criminal Procedure Code in whole or in part did not arise at all. Certain observations made in passing on which the final decision had not depended have been given a prominence in a head note complied by the reporter which they had not received in the main judgment. The earlier case law on the subject does not appear to have been cited before the Hon''ble Judges and was not referred to. The judgment mainly dealt with the question whether mens rea or guilty mind was an essential ingredient of the technical offence made punishable by section 35(1) of the Bombay Public Trusts Act, 1950. The acquittal of all the respondents was maintained and the appeal filed by the State was dismissed even though on the main question it was found that it was not necessary for the prosecution to prove the guilty intentions of the trustees. As already observed earlier in this judgment there was no room for the raising of the plea of right of self-defence in such a case of breach of trust and the question whether the right claimed had been exceeded or not did not arise. This ruling is not applicable to the fasts of the present case.

The broad propositions of law which may appear to have been laid down in Narain Singh''s case in such general terms stand substantially qualified, therefore, by the later Supreme Court judgments in the cases of Nishi Kant Jha and Sampat Singh.

It has then been argued by Shri Mahajan that I have been a party to some Division Bench rulings of this Court in which the arguments advanced by him had prevailed. Those cases had been decided on their own facts. Even otherwise a Division Bench ruling of this Court, to which I may or may not have been a party, cannot change the law as laid down by the Supreme Court. There is, therefore nothing to preclude us from applying the law correctly to the peculiar facts of the case now before us.

One of the Division Bench rulings relied upon by Shri Mahajan was in the case of Pritam Singh and others v. The Punjab State, Criminal Appeal No. 6 of 1970, decided on 19th January, 1972. Koshal J. who wrote the main judgment for the Bench had found that the prosecution eye-witnesses though present at the time of the occurrence had given a completely false version and that the venue of the crime had also been changed by them, Even in the absence of any satisfactory direct evidence the statement of one of the two appellants that the deceased had met with his death at that appellant''s hands was relied upon in part to convict that particular appellant u/s 304 Part I and to award him a sentence of ten years'' rigorous imprisonment. The right of private defence which had been claimed by that appellant to the extreme limit of the causing of the death had been granted to him only in part. It cannot, therefore, be said that the inculpatory and exculpatory portions of the accused''s statement u/s 342 Criminal Procedure Code had not been separated or that the inculpatory portion of the statement considered in the light of the medical evidence on the record had not been relied upon to base a conviction and sentence as mentioned above. The second Division Bench judgment to which I had assented was written by my learned brother Dhillon J. in Teka Singh and others v. The State of Haryana, Criminal Appeal No. 555 of 1968, decided on 12th April, 1972. In this case also the evidence of the prosecution eye-witnesses was completely disbelieved and they were found to have changed the venue of the crime with the obvious object of showing that the appellants'' and not the deceased''s party were the aggressors. A dispute over some land had admittedly figured as a part of the motive for the crime and the defence version was that the complainant party had come to the fields to disturb their peaceful possession over the land in dispute. If the defence version was accepted in its entirety it was only because there was nothing inherently improbable in that defence version and also because there was no circumstantial or medical evidence available on record to suggest that any part of the statement of the accused u/s 342 Criminal Code Procedure could not be true. It is the bounden duty of all Courts to strive to arrive at the real truth and no Court could ignore what may appear to be obvious to the naked eye. The Courts are not supposed to lay down a formula like the binomial theorem which can enable one automatically to get the correct computerised decision without really understanding the logic of the formula or the working of the machine. The inculpatory and the exculpatory portions of the confessional statement of an accused person whether made u/s 342 Criminal Procedure Code or outside the Court can be separated and can be put to test and scrutiny in the light of the circumstantial and the medical evidence. This was the principle of law laid down by five Hon''ble Judges of the Supreme Court in Nishi Kant Jha''s case. Narain Singh''s case (supra) was considered and was found not to make any difference to this proposition of law Narain Singh''s case was again considered by the Supreme Court in Sampat Singh''s case and was distinguished on the ground that the ratio was not applicable to the case then before the Hon''ble Judges. The principle of separating the inculpatory and exculpatory portions of the confessional statement of the accused was approved of and extended to a case where the confessional statement had been made u/s 342 Criminal J Procedure Code. Even in the absence of any direct evidence, the medical evidence alone was taken as sufficient corroboration of the inculpatory portions of that statement to justify a conviction by giving the accused a restricted right of private defence. The medical evidence was also taken into consideration to reject the exculpartory part of that statement.

Confessional statements, whether made u/s 342 Criminal Procedure Code or otherwise, have to be considered as a whole so that the inculpartory portions, torn from their true context, do not convey a meaning which was not really intended but this does not imply that the offensive and the inoffensive parts cannot be sifted for the amount of the truth that they contain or that we must harmonise the sensible with the insensible; the logical with the illogical and if that is not possible we must steel our nerves to swallow the whole bitter decoction; sting, poison, wings and all to give the accused what he always craves, namely, an outright acquittal. No Court can close its eyes to what has gone down on the records of a case and the portions going in favour of and against the accused have to be judged in the context of the other material on record even in the absence of any direct evidence in support of the prosecution story. If the accused is to be given the benefit of his statement u/s 342 we have to see how far he has succeeded in explaining away the circumstances appearing against him but success and failure are two aspects of the same thing and can be judged only as relative concepts. One cannot judge the success of the accused''s attempt at an explanation of the incriminating circumstances without looking at his failures.

My conclusions in brief are that there is no direct evidence in this case in support of the prosecution version. The defence story as given by Joginder Singh appellant in his statement u/s 342, that the deceased''s buffalo had strayed into his house and that the deceased had followed the animal there, can be believed. The deceased must have walked in peacefully and was not guilty of any violence, grappling or scuffle. There was no struggle over the possession of any knife as may appear from the turban which had remained stay put on the deceased''s head. The circumstantial and the medical evidence shows that the right of private defence claimed by Joginder Singh has been exceeded. There was no attempt on deceased''s part to strangulate Joginder Singh or to pin him down to the ground. The twenty injuries found on the person of the deceased could not have been caused to him in the manner suggested by the defence. The absence of any scratch or abrasion on Joginder Singh''s back shows that the story about the attempts at his strangulation and his being pinned down to the ground is false. Joginder Singh''s simple injuries could have been self-suffered. The incised wound on his right little finger could also have been sustained while giving the deceased any one or more of a score of injuries. The weapon of offence was recovered from Joginder Singh''s possession. The evidence about his evading arrest for three or four days can also be believed. The right of self-defence having been exceeded, Joginder Singh is liable to culpable homicide not amounting to murder. His case would fall under Exception II to section 300 of the Indian Penal Code. In view of the large number and dangerous character of the injuries caused by Joginder Singh the act can be presumed to have been done with the intention of causing the death. Joginder Singh should, therefore, be convicted u/s 304 Part I and should be sentenced to rigorous imprisonment for ten years. There is no direct evidence that Man Singh had joined his son in the commission of this crime.

Man Singh''s appeal is, therefore, accepted and his conviction and Sentence are set aside. The Murder Reference is declined and Joginder Singh''s appeal is partly accepted to the extent that his conviction is converted to one u/s 304 Part I of the Indian Penal Code and his sentence is reduced to rigorous imprisonment for ten years.

B.S. Dhillon, J.

I have had the privilege of going through the judgment of my learned brother Suri J. and I agree that Joginder Singh appellant is liable for culpable homicide not amounting to murder and, therefore, his case is covered by Exception II of section 300 of the Indian Penal Code and he be convicted u/s 304 Part I of the Indian Penal Code and sentenced to rigorous imprisonment for 10 years. Man Singh appellant is entitled to be acquitted. But I wish to further add that where the prosecution evidence adduced in support of its case pointing towards the guilt of the accused. is proved beyond all reasonable doubt, the consideration of the statement made by the accused u/s 342 of the Code of Criminal Procedure, presents no difficulty because the finding of guilt can safely be recorded on the basis of the evidence led by the prosecution. From the reading of the judgments reported in Narain Singh v. The State of Punjab, Nishi Kant Jha v. State of Bihar and Sampat Singh v. State of Rajasthan, in my opinion, the proposition of law which finally emerges is that in cases where the prosecution evidence is completely disbelieved, in that case, the statement of the accused recorded u/s 342 of the Code of Criminal Procedure, has to be taken to be correct as a whole which may include inculpatory part and exculpatory part and the Court is not entitled to scrutinize merely on the basis of that statement that the exculpatory part is improbable or is not worthy of any credence. In cases where some portion of the prosecution evidence can be believed, which may not even include the eye-witness account and which may only include some circumstances proved by the prosecution and so also medical evidence etc., in that case the Court is entitled to secrutinize the statement made by the accused u/s 342 of the Code of Criminal Procedure critically and if the circumstances so allow, the Court can come to the conclusion on the facts of the case on consideration of the statement as a whole that the exculpatorv part of the statement of the accused is not believable. Narain Singh''s case (supra) lays down the proposition that where there is no evidence to support the prosecution case the conviction cannot be based on the statement of the accused u/s 342 of the Code of Criminal Procedure which statement includes exculpatory part alone, if from the said statement taken as a whole, no offence is made out. In that case the prosecution evidence was completely disbelieved and the conviction of the appellant u/s 304 Part II of the Indian Penal Code was based by the High Court on the sole statement of the appellant, Narain Singh, made by him u/s 342 of the Code of Criminal Procedure but the Supreme Court set aside the conviction. According to my reading, Nishi Kant Jha and Sampat Singh''s cases (supra) are cases of the category where some part of the prosecution evidence was believed and keeping in view that evidence, the statements made by the accused were critically examined and a conclusion was arrived at that the exculpatory part of the statement was not worthy of any credence. In my opinion, the present case before us is covered by this category.