Ladha Gova vs The State

This is an appeal from conviction u/s 302, Penal Code, of the appellant by the Sessions Judge, Sorath, who sentenced the appellant-accused to transportation for life. The prosecution case was that on 8-1-1949 the accused committed murder of one Raja Samat. The offence took place near village Darsali in the District of Sorath in the sugar-cane plantation of the accused. The deceased was seen by the accused, with a bundle of sugar-cane which he had out and was stealing. The accused thereupon struck the deceased a blow on the head with an axe as a result of which the deceased fell down. Thereafter the accused dealt some more blows. The deceased seemed to have died immediately. The accused took up the body of the deceased, tied it in his falia and carried it to a distance of about 500 feet and left the body near the hedge situated on the boundary of the farm of one Rabari Chunu Ala. The accused, thereafter, is said to have washed his blood-stained axe and blood-stained portion of his kadia in the watercourse near his farm and returned to his house. On the next morning the accused took a shovel, went to his sugar-cane farm and the scene of the offence from where he removed with his shovel the dust which was stained with blood of the deceased and also pieces of broken skull which were lying there. All these articles he heaped in a place in his sugar-cane farm and covered them underneath some of the fallen leaves of the sugar-cane. The body of the deceased Raja Samat was found on the evening of 4-1-1949 by one Rabari Deva Lala. On 5th January the accused was taken into custody where after between 3 and 5 P.M. on the same day in pursuance of statements made by the accused discovery of articles were made and regular panchnamas were made out. These panchnamas are Ex. Nos. 33, 33 and 34 and the articles discovered include blood-stained dust, pieces of skull, a blood-stained scythe, a bundle of sugar-cane with 4 pieces stained with blood discovered in the sugar-cane plantation of the accused hidden under dry leaves of sugar-cane, and the axe and folia of the deceased which were both said to have been blood-stained. A panchnama was also made of blood-stains found on the stones on the ground on the way at intervals from the scene of the offence to the place where the body of the deceased was carried and left on the boundary of the farm of Rabari Chana Ala. On 6-1-1949 the accused made a confession before the Magistrate at Malia. In the confession be gave a consistent story as to how he hit the deceased with his axe when the deceased was seen taking away with him a bundle of sugar cane from his farm. The deceased fell down and whereafter he dealt four other blows. He also gave description of what he did afterwards and how he removed the dead body to Anr. place where it was found. He also stated that he had washed his blood-stained axe and clothes before returning home in the water, course near his farm. He also stated that on the next morning he removed the blood-stained earth from the scene of offence and bid it along with broken pieces of skull under some dry leaves of sugar cane. In the Court, however, the accused retracted his confession and alleged that it was made due to pressure brought on him by Police. The learned Sessions Judge held that the confession was voluntary and the facts stated therein were sufficiently corroborated by the circumstantial evidence as also by the articles discovered by the accused and he convicted and sentenced him as above stated.

Mr. D.N. Vakil, the learned Advocate for the appellant, has frankly admitted that he cannot challenge the finding that it was the accused who caused the death of the deceased. The evidence is fairly strong to support this finding and his confession is corroborated in material particulars by other circumstantial evidence. [Their Lordships reviewed the evidence and continued]: We also agree with the finding of the Sessions Judge that the confession was entirely voluntary. We consequently agree with the finding that it was the accused who dealt the blows to the deceased as result of which the latter died.

The learned advocate for the appellant has, however, contended that the accused wag justified in the exercise of right of private defence of property to inflict the injuries on the deceased as the latter was a trespasser and caught actually in the act of stealing sugar cane. He consequently argued that he should either be acquitted or at any rate his case should fall under Exception 3 to Section 300 on the basis of his having exceeded his right of private defence. Therefore he would be guilty at the most of culpable homicide not amounting to murder. This defence was not raised in the Sessions Court and has been argued for the first time in this Court.

Now it is no doubt true that the deceased was a trespasser and was seen by the accused in the act of committing theft and the accused had a right of private defence u/s 103 or u/s 101, Penal Code. Such right of private defence u/s 103 as laid down by the section in the case of theft extends to voluntarily causing death provided there are such circumstances as may reasonably cause apprehension that death or grevious hurt will be the consequence if such right of private defence is not exercised.

In the present case there are no such circumstances which may have caused any reasonable apprehension that death or grievous hurt would be caused to the accused. In his confession there is absolutely no indication that the deceased showed any fight or semblance of a fight. Consequently the right of private defence of property, if any, would come u/s 104 which does not extend to the voluntarily causing of death but extends subject to the restrictions mentioned u/s 99 to the voluntarily causing to the wrong-doer any harm other than death. One of the restrictions contained in Section 99 is that the right of private defence should in no case extend to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

In oausing death, the right being exceeded we have to see whether the case comes under Exception 2 to Section 100(300?), Penal Code, which requires that it must be proved that the death was caused (1) in good faith in the exercise of the right of private defence of person or property, (2) it was caused without premeditation and (3) without any intention of doing more harm than was necessary for the purpose of such defence. Unless the case can be brought under the provisions of this exception the accused would be guilty of murder provided of course that the usual conditions required by Section 300 are complied with.

Bearing these principles in mind let us look to the facts of the present case. The medical evidence shows that the deceased had 3 incised wounds, two of which were on the head and one was on the left side of the neck. The injuries were : (a) An incised wound 6" x 2" and deep to the brain substance situated obliquely on the scalp between two ears, outing the hairs, skin and scalp bones below left ear; (b) an incised wound 4" � 2" and deep to the bone situated perpendicularly on the left side of the neck upto injury No. 1 fracturing occipital temporal and parietal bones into pieces below 4" x 1" and (c) an indeed wound 2" x �" x �" deep on the left side of the neck. According to the evidence of Dr. Vora who performed the post-mortem examination of the body of the deceased all these three injuries were fatal and death was likely to be immediate or at any rate not later than half an hour after the infliction of the injuries. The Doctor states that any one of the injuries was enough to make a man immediately, unconscious. These injuries were likely to have been caused by a sharp edged weapon like the axe produced in the case. The Doctor further says that the blows must have been given with considerable force because the skull was broken into pieces. In his confession she accused said that the deceased had previous to this occurrence committed several thefts and when he saw him with the bundle of sugar-cane he struck him a blow on his head whereupon the deceased along with the bundle fell down. Thereafter he gave him four blows although the most-mortem examination shows only two more blows. The deceased must have died immediately. The accused then wrapped the body up in his folia and removed it to a distance of 500 feet. The deceased had neither an axe nor a stick. He had, however, a scythe with which he had out the sugar-cane. The blows that the accused dealt, which were all of them fatal, could hardly be construed to have been given in the exercise of private defence of property. They were so severe and brutal as to lead to the inference that the accused had the intention to cause the death of the deceased. If the accused bad dealt a single blow to the deceased in order to disable him from taking away the stolen property it might have been plausibly argued that this was a case of private defence of property and it came within the exception to Section 300 but after the deceased bad fallen in consequence of the first blow and was practically at the mercy of the accused, the latter''s act in dealing two more fatal blows shows an intention to kill rather than to exercise the right of private defence. No doubt the right of private defence against theft continues till the offender has effected his retreat with the property or till the property has been recovered. In the present case it cannot be said that after the deceased had fallen down completely prostrated and the stolen property was thrown on the ground the right of the private defence still continued and extended to inflicting two more fatal blows to the deceased.

The learned Advocate for the accused had relied upon a single Judge decision of the Oudh Chief Court reported in Bachchu Lal v. Emperor AIR 1985 Oudh 442 (36 Cri.L.J. 1209). In that case the Sessions Judge had convicted the accused-appellant u/s 304 of culpable homicide not amounting to murder. An appeal was filed to challenge the conviction u/s 304. It was held in that case that the accused had no motive for causing death and that he had no intention to kill or to cause bodily injuries as may result in the death of the deceased against whom the right of private defence was exercised. The medical evidence showed 4 injuries. The offence seems to have been committed on a dark night. Under these circumstances, the learned Judge refused to interfere and upheld the conviction u/s 304 but reduced the sentence from seven years to one year''s rigorous imprisonment. There was no question whether the accused was guilty of murder in that case. The accused was not charged with murder so that the aspect of the case which is important in the present case was not before the learned Judge. The learned advocate for the appellant also relied upon a ruling of a single Judge of the Lahore High Court reported in Hasham v. Emperor AIR 1986 Lab. 28. In this case also the Sessions Court had convicted the accused u/s 304, Part II, Penal Code, and there was no question before the Court of offence u/s 300. The deceased in that case received one fatal injury while he was stealing carrots from one of the accused. The question before the Court was whether the accused were entitled to acquittal by reason of private defence of property. The learned Judge observed that

Hasam was therefore acting in the right of private defence of property. Of course in striking a fatal blow on the head he exceeded that tight bat in the circumstances I am of opinion that a sentence of six months'' rigorous imprisonment is sufficient and I reduce the sentence accordingly.

In that case only one blow was dealt to the deceased who was actually caught in the act of stealing. The learned advocate for the appellant, however, referred to Anr. case of Bag v. Emperor which is cited in this case. The case cited is reported in 89 P.R. 1902 Cr. wherein a Division Bench of the Punjab Chief Court observed:

The appellant was watching his field (some of the grain of which had on previous occasion been stolen), that he saw Hukman cutting corn in it, that he gave chase, that Hukman ran his head against a tree and fell, that the appellant hit him recklessly with a stick while on the ground on the head and fractured his skull two places causing death.

The Bench reduced the sentence u/s 304, Part I to one year''s rigorous imprisonment.

Now each case depends upon its circumstances. The case of Bag v. Emperor 29 P.R. 1902 Cri., was distinguished in a Bench ruling of the Punjab Chief Court reported in Mammul v. Emperor AIR 1917 Lab. 347, where the accused had dealt a series of blows to the deceased as a consequence of which he died and he was committed to trial for murder u/s 302. Referring to the case of Bag v. Emperor 29 P.R. 1902 Cri., the learned Judge observed at p. 370 as under:

The distinction between this case and Bag v. Emperor 29 P.R. 1902 Cri. is so clear that it affords no guidance whatever; there the deed was done in the dark, here in moonlight; there only two blows fell on the head, here ten; there the stick used was found not formidable, here we have chhavis and dangs. In our opinion the appellants bad a common object and thus we need not stop to consider who struck which blow. One thief fled at once and the other also fled, neither showing fight; and, therefore, Exception 4 to Section 300, Penal Code, cannot be invoked. As regards the right of private defence of property which is urged in argument, we have to consider Sections 97, 99 and 103 of the Code. The restrictions of the right as set forth in Section 97 and Section 103 are to be found in Section 99, and the paragraph we are concerned with is the fourth--no more harm may be inflicted than is necessary for the purpose of defence. In the present case it is manifest that it was not necessary for six or seven heavily armed men to kill Arur Singh or even to cause him very serious injury, in order to prevent theft of the rice; and we have to look next at Exception 2 to Section 300, end have to ask ourselves the questions:

First, have the appellants exceeded their right of private defence?

Secondly, if so, in using violence to Arur Singh did they act in good faith though they exceeded their right?

Thirdly, had they acted without pre-meditation?

Fourthly, had they no intention of doing more harm than was necessary?

If the exception is to be applied, the last three questions must be answered in the affirmative. The answer to the first we have already given. We find it impossible to hold that the appellants did not intend to cause more harm than was necessary, and this conclusion involves a negative answer to the second question also. It seems to us idle for any one to contend that in the continued beating of Arur Singh about the head, after he was down, they intended merely to render him hors de combat and unable to steal rice or to escape, We think they intended to cause such bodily injury as they knew to be likely to result in death, or at the least to cause bodily injury of a kind sufficient in the ordinary course of nature to cause death.

In our opinion, therefore, the offence committed by all five appellants was murder punishable u/s 302, Penal Code, but inasmuch as there was some provocation and no pre-meditation we think the extreme penalty is not called for. We, therefore, accept the appeals upholding the convictions and reduce the sentences to transportation for life in each case.

In a recent Bench ruling of the Lahore High Court reported in Lal v. The Crown 48 Cri.L.J. 809 (Lah.) which was a case directly u/s 302 and Expn. 2 to Section 300 was pleaded as a defence to reduce the offence from murder to culpable homicide not amounting to murder, it was observed that for the application of Expn. 2 to Section 300 it was essential that the person causing hurt in the bond fide exercise of the right of private defence should act without any intention of doing more harm than was necessary for the purpose of such defence. In a trial for murder it was proved by the prosecution that the accused had inflicted various blows on the deceased with dangs and lathis resulting in his death on the spot. There were no less than 16 visible injuries on the body out of which 8 were on the head and face, the skull being fractured and smashed to pieces under four of the head wounds. The accused pleaded the right of private defence and alleged that there was a fight between them as a result of the deceased taking, forcible possession of the cattle which were being carried by them to the pound for trespass upon their land. It was also found that there was only a small number of injuries on the accused persons. In the circumstances of that case it was held that the accused bad dearly exceeded their right of private defence. The nature of injuries inflicted clearly showed an intention to cause death and, therefore, Expn. 2 to Section 300 had no application. The offence committed was, therefore, murder. The learned Judges were pleased to observe at p. 814 of the report as under:

Even, however, if the plea of self-defence put forward by the accused Lal and Suja be accepted in full it, will still not entitle them to the benefit of Exception 2 to Section 300, Penal Code. For the application of that exception it is essential that the person causing hurt in the bona fide exercise of the right of private defence should act ''without any intention of doing more harm than is necessary for the purpose of such defence.'' We have no hesitation in holding that in the circumstances as, shown by the defence evidence, there was no occasion for Lal and Suja to smash the head of the deceased'' Mohommad with as many as eight heavy blows. These blows furnish clear proof of an intention to cause death and accordingly Exception 2 to Section 300 is not available.

We may also refer to a very old and instructive case reported in Queen v. Gokool Bouree 6 W.R.Cri. 33, where the Court held that the offence committed was murder, the death of a weak half starved old woman, who was detected stealing, being caused in the alleged exercise of the right of private defence. The following observations of Phear, J. at p. 38 are very relevant:

The medical evidence shows that these (injuries) were of a very brutal nature. The shoulder blade was fractured. The ulna, or each fore-arm was broken. The phalanx of the left ring finger was also broken. There were contusions and abrasions all over the body, and the marks of two severe blows on the head; death ensued within a few hours and was, without the least doubt, caused by the beating. The woman was not labouring under any disease, all her organs appear to have been perfectly healthy; on the other hand she was very slightly formed, in a half-starved condition of body. Probably too, no single one of the injuries inflicted, unless it were the blow on the head, would of itself have proved mortal. But, notwithstanding these latter considerations, I feel that there is no reasonable ground upon which I can withhold the conclusion that Gokool must have known when he was so barbarously using the poor old woman that he was thereby likely to cause her death; he must have known that his blows were collectively so imminently dangerous that they would in all probability cause such bodily injury as is likely to cause death. They did in fact cause death, and I must, therefore, find him guilty of murder, unless I can give him the benefit of one of the exceptions laid down in the Penal Code. The only exceptions which are in any way applicable to the case are the first and second. The first provides ''that culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation.'' Now I certainly cannot say that the wretched Kumanali gave Gokool grave and sudden provocation to beat her to death. In the first place the provocation was not sudden, because Gokool by his own account expected to find somebody stealing his paddy; and, in the next place, it was not in my judgment (notwithstanding the very considerable value of the paddy to a poor man in a time of famine prices) be grave as to have reasonably deprived him of the power to moderate his blows. I am of opinion that it is not every case where self control is lost which is protected by this exception, but only such cases exhibit a provocation which would in the common course of things be expected a priori to deprive the offender of self-control to a sufficient, extent to admit of the fatal act being committed. The second exception 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 defence.'' With regard to this, I need not explain what I conceive to be the proper scope of those words. It appears to me sufficient to remark that in this case the mere defence of the paddy certainly did not at most require more than a very slight imposition of hands. The injuries inflicted by Gokool were not simply an excess beyond what the law would have allowed for the purpose of such defence, hut were altogether done beyond the pale of the law. In my opinion, therefore, neither exception shelters Gokool and I am obliged to find him guilty of murder.

Bearing in mind the provisions of Sections 103, 104 and the requirements of Exepn. 2 to Section 300 and the rulings referred to above, it seems to us that the case of the appellant neither falls u/s 103 giving absolute immunity nor under Exepn. 2 to Section 300 to reduce the offence to culpable homicide not amounting to murder. In the first place the evidence shows that the accused bad a grudge against the deceased by reason of the prior thefts committed by the deceased and the idea of revenge was present in his mind and when he saw the deceased going in the direction of his field, the accused went to his house and took an axe and followed the deceased. So that it could not be said that the act of the accused was not premeditated and when he found the deceased with a bundle of sugar-cane he dealt him a blow which according to the confession of the accused read with the evidence of the doctor who says that any one of the 3 fatal injuries must have caused unconsciousness, completely disabled the deceased. The accused was not satisfied with this but gave him two more brutal and fatal injuries on vital parts of the body i.e. the head and the neck. The accused was not satisfied merely with the rescuing of the stolen property but was actuated by an idea of revenge and his two blows while the deceased was completely: at the mercy of the accused and lying in an unconscious state clearly showed an intention to cause death. We are of the opinion that neither the accused acted bona fide nor did he inflict injury just sufficient in the exercise of private defence. The accused had the intention of doing more harm than was necessary for the purpose of the right of defence of property.

We are, therefore, of the opinion that the requirements of Exepn. 2 to Section 300 are not complied with and confirm the conviction u/s 302 of murder and the sentence of transportation for life. We accordingly dismiss the appeal, but looking to the peculiar circumstances of the case and the class of the people to which the accused belongs who hardly realise that in killing a thief caught in flagrante delicto they are committing a serious offence, we would recommend his case to Government for commutation of sentence to a sentence of rigorous imprisonment of five years.