Om Parkash vs State of Haryana

S.S. Grewal, J.

This appeal is directed against the order of Additional Sessions Judge, Hissar dated 18th October, 1985 whereby the present appellant was convicted under Section 304 Part I of the Indian Penal Code, holding that Om Parkash had right of selfdefence to begin with, but he exceeded the same by giving 11 blows to the deceased and, was sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 500/. In default of payment of fine he was further ordered to undergo, further rigorous imprisonment for one year, whereas, his coaccused Sia Ram Raja Ram Singh and Narsi Ram were acquitted holding that the prosecution has not been able to establish its version, and their participation was doubtful.

In brief facts relevant for the disposal of this appeal as emerge from the first information report recorded on the basis of the statement of Sohan Lal an alleged eyewitness, are, that on 121985 his son Ram Sarup deceased was playing cards with Raja Ram and Om Parkash accused and one Hanuman in the street of their village. Ram Sarup threw the cards and said that he did not want to play. Om Parkash accused slapped Ram Sarup who went back to his house. After some time i.e. at about 3 P.M., Om Parkash accused armed with a lathi, his brothers and coaccused Ram Singh and Narsi Ram armed with a licensed gun and Barga, a blunt weapon, respectively, Sia Ram armed with a Jaily and latter''s brother Raja Ram armed with a knife came to the house of Sohan Lal PW and raised lalkara addressing Ram Sarup to come out of his house. Sohan Lal, first informant, pleaded with the accused with folded hands, that it was a minor matter and they should go away. All the five aforesaid accused, however, retorted that they would teach a lesson to Ram Sarup. Thereafter all the aforesaid Five accused committed trespass in the house of Sohan Lal PW. Om Parkash pushed aside Sohan Lal whereas Raja Ram gave a knife blow hitting Sohan Lal PW on his thumb at two places. Both Sohan Lal and Lilawati widow of the deceased tried to rescue Ram Sirup. Narsi Ram gave a Barga blow on the head of Ram Sarup, who, became unconscious and fell down. Ram Singh then fired a shot from his gun. Om Parkash accused gave a lathi blow to Ram Sarup while the latter was already lying fallen on the ground, whereas, Sia Ram accused gave a Jaily blow on his left leg. Thereafter all the five accused took away Ram Sarup to the house of Ram Singh accused and bolted the door from inside with the intention to kill Ram Sarup. Out of fear Sohan Lal and widow of the deceased Lilawati did not go to the house of Ram Singh accused.

The motive for the crime was that in 1975 father of Om Parkash, Narsi Ram and Ram Singh accused was murdered. In that case both Sohan Lal and his son Rain Sarup was challaned. They were however, acquitted by the Court of Session, and, in order to take, revenge the accused in furtherance of their common intention attacked Ram Sarup. Om Parkash accused also received injuries during the occurrence. However, neither any details of seat of the injuries, nor, the weapons used or the name of the individual at whose hands. Om Parkash received injuries finds mention in the first information report. Originally the case was registered under Sections 452/342/307/148/149 IPC and under Sections 27/54/59 of the Arms Act. However, on reaching the spot and finding that Ram Sarup was already dead due to the injuries received by him, the offence was converted to one under Section 302 IPC front 307 IPC. After completion of the investigation all the aforesaid five accused were challaned, committed, tried and ultimately only Om Parkash accused (present appellant) was convicted and sentenced as indicated above.

The learned counsel for the parties were heard and record of the trial court was carefully perused with their help.

Medicolegal evidence produced by the prosecution reveals two incised wounds, one "on the base of the right thumb which was only 5 cms x 1/2 cm x.bone deep and the second 2 cms x 1/12 cm x muscle deep on the palmer surface of right hand 3 cms above injury No. 1, on the person of Sohan Lal PW, whereas, only one reddish brown contusion 4"x 1" on the back of right middle shoulder region was found by the doctor on the person of Lilawati PW. Medicolegal examination or Sohan Lal was conducted on the evening of the occurrence at 8. 10 P.M., whereas, that of Lilawati widow of the deceased was conducted on the next day of the occurrence. Medicolegal examination of Om Parkash accused was conducted at 4.10 P.M. on the day of occurrence and the doctor found two lacerated wounds on his person, one of such wound was of the dimension or 2 1/2"x 1/4" x bone deep on the left parieto occipital bone 3" above the tip of left ear. Postmortem examination on the deadbody of Ram Sarup was conducted on the next morning of the occurrence at 11 A. M., and, the doctor found as many as 12 injuries on the deadbody. Out of these eight were incised wounds. Three of the incised wounds were on the left parietal region or on the back of the skull in the occipital region, whereas, the other four incised wounds were on the chin and the eighth is only a linear wound on the front of the middle finger. Underneath the head injuries multiple fracture of frontal and both parietal bones and laceration of meanings and brain was seen, and these injuries in the opinion of the doctor were ante mortem and sufficient to cause death in the ordinary course of nature.

The trial Court had properly weighed and scrutinised the ocular account given by Sohan Lal father and Lilawati widow or the deceased in this case, and rightly disbelieved their testimony regarding the first occurrence which allegedly took inside their own house. It is significant to note that in the first information report no specific injury to Lilawati PW4 is attributed, whereas, during the trial she is said to have received injury at the hands of Om Parkash accused, when the latter allegedly pushed her. Apart from the fact that various improvements during the trial were made in order to reconcile ocular account with the nature and extent of injuries received by Ram Sarup deceased, there is no specific mention in the FIR that Jaily was used thrustwise by Sia Ram accused while giving injury to the deceased. The other. two weapons lathi and Barga are blunt weapons. In order to explain the two incised head injuries to the deceased attributed to Narsi Ram accused with a Barga and Om Parkash with a lathi, during the trial lame explanation was furnished that Barga was fitted with a blade like that of a Gandasi, whereas, lathi used by Om Parkash was fitted with an iron Patti. Sohan Lal admitted that Barga is used as a part of material for roofing and according to the observations of the trial Court a Barga is rectangular shapped wooden piece and comes in the category of blunt weapon. The material improvements made by the two eyewitnesses referred to above clearly show that both Sohan Lal and Lilawati are wholly unreliable witnesses.

No plausible explanation has been put forth on behalf of the prosecution as to why the medicolegal examination of Sohan Lal was not immediately conducted, when he went to lodge the report with the police. He was first brought to the place of occurrence, and, after preparing the inquest report he was got `Medically'' examined at 8. 10 P.M. This circumstance supports the defence plea that the first information report was recorded after due deliberations and consultations, after spot inspection. Besides, the nature and extent of injuries of Sohal Lal reveals that these were merely superficial wounds and such like injuries can also be selfsuffered. Similarly, nature, extent and seat of injury or Lilawati PW would indicate that the same could be selfsuffered or caused by friendly hand. Injuries of both the said PWs are on nonvital parts of the body and could also be selfsuffered or caused by a friendly hand, in order to probabilise their presence at the spot at the time of the occurrence.

Another significant aspect of the case is that after infliction of two head injuries, the deceased is said to have been taken away by the accused party from his own house to the house of Ram Singh accused. In case this revision had been correct, normally trail of blood would have been found by the Investigating Officer who came, and, visited the spot within few hours of the occurrence. No blood was lifted by the Investigating Officer at any place in between the house of Sohan Lal or the house of the decreased where the first occurrence allegedly took place and that of the house of Ram Singh accused where the second occurrence took place.

Another important aspect of the case is that Om Parkash accused was medically examined at 4. 10 P.M. on the day of occurrence at Uklana where the police station itself is situated. Ruqa in respect of injuries of Om Parkash was sent to the Police Station. It is difficult to believe that the Investigating Officer would not receive information concerning the injuries of Om Parkash before he left for the spot from the Police Station, on the evening of the occurrence. The omission on the part of the Investigating Officer to go to Primary Health Centre, Uklana at the earliest has deprived the Investigating Agency to find out the truth with regard to the version of Om Parkash accused, concerning the manner in which the main occurrence took place, and, also his explanation about the presence of deadbody of Ram Sarup in the house of Ram Singh accused. In case Om Parkash had received injuries during the first incident at the house of Sohan Lal PW then there would not be any difficulty for the two eyewitnesses to give details about the manner in which Om Parkash accused received injuries. Neither any weapon of offence has been mentioned nor injuries of Om Parkash accused are attributed to any specific individual, in the first information report.

As far as immediate motive is concerned it is the own case of the prosecution, that, Om Parkash accused had given a slap to Ram Sarup deceased, while, the latter stopped playing cards with the accused, and, wanted to leave for his house. Shortly thereafter the deceased left for his house. In such a situation the prosecution version that Om Parkash accused along with other coaccused went and attacked Ram Sarup inside his house, or, later on brought him to the house of Ram Singh accused, where, the accused party is said to have given him further injuries does not seem natural, probable or convincing. Rather in that situation the greater motive would be on the part of Ram Sarup, who felt Bhumiliated after being slapped, armed with a lathi went to the house of Ram Singh accused and attacked Ora Parkash accused, in order to wreak vengeance.

All these circumstances taken together cast grave doubt about the veracity of the two eyewitnesses, namely, Sohan Lal and Lilawati, the two close relations of the deceased, who, are wholly unreliable witnesses and the trial Court has rightly held that no occurrence took place inside the house of Sohan Lal PW. The learned trial Court has rightly disbelieved the ocular account and giving benefit of doubt had acquitted accused, other than Om Parkash accused.

According to the defence version set up by Om Parkash accused, he and Ram Sarup alone were playing cards. They quarrelled while playing cards and Om Parkash gave a slap to Ram Sarup who then left saying, that, he would teach a lesson to Om Parkash for giving a slap. Soon, Ram Sarup came armed with a lathi to the house of Om Parkash accused and gave a blow with the same on the back of the head of Om Parkash. The latter turned back and caught hold of Ram Sarup from his neck, who, retreated a few steps and gave two more lathi blows on the hands of Om Parkash. The latter then picked up a Gandasi lying nearby and gave five or six blows both from the sharp and reverse side to Ram Sarup who fell down,. Thereafter Om Parkash left for his fields and informed his brother Raja Ram about the occurrence, who, brought him in a tractor to the hospital.

The learned trial Court has merely convicted Om Parkash appellant under Section 304 Part I, IPC on his own statement recorded by the trial Court under Section 313 Cr.P.C. holding that Om Parkash had exceeded the right of selfdefence, and, had caused more harm than was necessary. According to the trial Court, Om Parkash accused had received just two minor injuries. Testimony of Dr. Sham Sunder PW2 reveals that Om Parkash has received two lacerated wounds including one lacerated wound 21/2x 1/4 on the left parieto occipital bone, and, the other lacerated wound was on the dorsal surface, of left middle finger. Besides, a diffused swelling on the dorsal surface of base of ring and middle finger of left hand of Om Parkash accused was also found. While dealing with this aspect of the case the learned trial Court seems to have been swayed mainly because or number of injuries received by deceased Ram Sarup. One such injury was a ligature mark and eight were incised injuries. Mainly on this basis the trial Court held that Om Parkash accused had exceeded the right of private defence of person and property.

Right of private defence of person and property cannot be weighed in golden scales nor, a person under attack acting in bona fide exercise of such right is expected to modulate his defence step by step. The number, nature and extent of injuries in such cases cannot be considered to be the sole criteria, in order to judge as to whether such accused person while acting in bona fide exercise of right of private defence of person and property had exceeded such right, or, had caused more harm than was necessary. Rather the main criteria in such a case would be that the person claiming such right of private defence of person and property has reasonable cause or apprehension that death or grievous hurt would otherwise be consequence of such an assault at the hands of opposite party, who, is the actual aggressor, and, the said right would last as long as such aggressor is not disarmed, or, becomes unable to continue his attack.

I find support on this point from the authority of apex Court in Jai Dev. v. State of Punjab, AIR 1963 SC 612 wherein dealing with this aspect of the case it was observed that in judging the conduct of a person who proves that he had a right of private defence, allowance has necessarily to be made for his feelings at the relevant time. He is faced with an assault which causes a reasonable apprehension of death or grievous hurt and that inevitably creates in his mind some excitement and confusion. At such a moment, the uppermost feeling in his mind would be to ward off the danger and to save himself or his property, and so, he would naturally be anxious to strike a decisive blow in exercise of his right. It is no doubt true that in striking a decisive blow, he must not use more force than appears to be reasonably necessary. But in dealing with the question as to whether mare force is used than is necessary or than was justified by the prevailing circumstances, it would be inappropriate to adopt tests of detached objectivity which would be so natural in a court room, for instance long after the incident has taken place. The means which a threatened person adopts or the force which he uses should not be weighed in golden scales. To begin with, the person exercising a right of private defence must consider whether the threat to his person and property is real and immediate. If he reaches the conclusion reasonably that the threat is immediate and real, he is entitled to exercise his right. In the exercise of his right he must use force necessary for the purpose and he must stop using the force as soon as the threat has disappeared. So long as the threat lasts the right of private defence can be legitimately exercised, it would not be fair to require that he should modulate his defence step by step, according to the attack, before there is reason to believe the attack is over. The law of private defence does not require that the person assaulted or facing an apprehension of an assault must run away for safety. As soon as the cause for the reasonable apprehension has disappeared and the threat has either been destroyed or has been put to rout there can be no occasion to exercise the right of private defence. If the danger is continuing, the right is there; if the danger or the apprehension about it has ceased to exist, there is no longer the right of private defence.

Another salient feature of the present case is that the conviction of Om Parkash accused is based solely on his own statement recorded under Section 313 of the Code of Criminal Procedure by the trial Court which relying on a part of the said statement held that the right of selfdefence which initially accrued to Om Parkash was exceeded. Reliance in this respect has righty been placed by the defence counsel on authority of their lordships of the Supreme Court in Narain Singh v. State of Punjab, (1963)3 SCR 678, wherein, in somewhat similar circumstances it was held that the conviction of the appellant under Section 304 Part II Indian Penal Code could not stand. In convicting the appellant the Court below had accepted a case which was not the case of the prosecution but had relied only upon a part of the statement of the appellant made in his defence. It was not open to be courts to dissect the statement and to pick out the incriminating part and to reject the exculpatory part on the ground it was not supported by evidence. If in his statement the accused confesses to the commission of the offence charged he may be convicted upon that confession, but if he does not confess and sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement can only be taken into consideration in its entirety. Taking the statement of the appellant in its entirety, he had an apprehension that B was attempting to strangulate him and this gave him the right of defence of person extending even to causing the death of the assailant.

Taking into consideration the over all circumstances of the case particularly the fact that the main occurrence took place inside the house of the accused party; the fact that the deceased himself was the aggressor as he had committed trespass inside the house of the accused party with a view to wreak vengeance against Om Parkash accused who shortly before the occurrence had slapped him and the nature and extent of injuries received by Om Parkash accused and Ram Sarup deceased, the plea of self defence raised by Om Parkash appellant in its entirety seems quite natural, probable and convincing. Thus in the peculiar facts and circumstances of the present case it is quite evident that Om Parkash accused caused injuries to the deceased in bona fide exercise of right of private defence of person and property and had not in any manner exceeded the same.

For the foregoing reasons, the order of conviction and sentence passed against Om Parkash accused by the trial Court cannot be legally sustained. The same is hereby set aside and this appeal is accordingly allowed.