Punitram vs State of Chhattisgarh

Sunil Kumar Sinha, J.—This appeal is directed against the judgment dated 26th of September, 2007 passed in Session Trial 4/2007 by the First Additional Session Judge, Balodabazar. By the impugned judgment, the appellant has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life and to pay fine of Rs. 500/- with default sentence of R.I. for 2 months.

The facts, briefly stated, are as under-

Deceased-Punauram was real brother of the appellant. They were residing in different portions of the same house. On 21.02.2007, at about 2 p.m., the deceased came to the house of the appellant. He was armed with a Tangiya. The allegations are that the appellant Snatched Tangiya from the deceased and assaulted him causing multiple serious injuries. The deceased died on account of the injuries sustained by him. The appellant, then made extrajudicial confession before Punaram (P.W. 2) who narrated the story to Heeralal (P.W. 3). Heeralal (P.W. 3) lodged murg-intimation (Ex.- P-3) and First Information Report (Ex.- P-4). Radheshyam (P.W. 1) is father of the appellant. He was an eye-witness to the incident. The autopsy of the deceased was performed by Dr. F.R. Nirala (P.W. 10). He noted following injuries on the dead body of the deceased.

I. Incised wound of 6 inch X 21/2 inch X 41/2 inch on the middle of the skull;

II. Depressed compound fractures on the skull bone;

III. Incised wound of 21/2 inch X 11/2 inch X 1 inch on the right ear pinna;

IV. Incised wound of 21/2 inch X 21/2 inch X 1 inch near injury no. 1;

V. Incised wound of 11/2 inch X 1/2 inch X 1 cm on the lower portion of right cheek; and

VI. Abrasion of 1 cm. X 1/2 cm. on the middle of right thigh.

The autopsy surgeon opined that all the injuries were ante-mortem, caused by hard and sharp object. The cause of death was injuries sustained on skull and it was homicidal in nature.

The appellant took the plea of right of private defence. The learned Session Judge rejected the plea of right of private defence and held that the appellant caused above serious injuries to the deceased with an intention to commit his murder, therefore, he was liable for punishment u/s 302 IPC.

Mr. Utkal Pradha, learned counsel appearing on behalf of the appellant argued that the deceased was aggressor; he came to the house of the appellant with Tangiya in his hands; he assaulted the appellant with Tangiya; the appellant had also received injury; therefore, the appellant, in exercise of right of private defence inflicted injuries to the deceased.

On the other hand, Mr. V.K. Shrivastava, learned Govt. Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court.

We have heard learned counsel for the parties at length and have also perused the records of the Session Case.

We shall firstly examine as to whether in the facts and circumstances of the case, a right of private defence had accrued in favour of the appellant ?

Right of private defence falls in the category of General Exceptions define under Chapter IV of the IPC. Section 96 provides that nothing is an offence which is done in the exercise of the right of private defence. This plea, however, extends not only to the persons exercising the right; but to any other person. Sections 96 and 96 confer a right of private defence against certain offences and acts and Section 99 provides acts against which there is no right of private defence. It clearly provides that there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though the act, may not be strictly justifiable by law. It further provides that there is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law and further that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Extent to which the right may be exercised, it provides that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 100 provides that the right of private defence of the body extends under the restrictions mentioned in the last preceding section to the voluntary causing of death or of any other harm to the assailant if the offence which occasions the exercise of the right be of any of the descriptions enumerated therein, namely. "First-Such an assault, as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; Secondly-Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault". To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden in this behalf is on the accused. Section 102 and 105 IPC deal with commencement and continuance of the right of private defence of body as well as property. It commences as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, to commit the offence, although the offence may not have been committed, but not until there is reasonable apprehension. In other words, the right is co-extensive to the reasonable apprehension of the danger to the body.

Therefore, if claim is being made that the accused acted in exercise of power of right of private defence, he must show that there were prevailing circumstances giving rise to reasonable apprehension that either the death of grievous hurt would be caused if the right is not exercised.

Radheshyam (P.W. 1) is father of the appellant and the deceased. He was an eye-witness. He deposed that on the fateful day, a quarrel took place between the appellant and the deceased. The deceased firstly threatened Radheshyam (P.W. 1) and thereafter he went to the house of the appellant with a Tangiya. The appellant snatched Tangiya from the hands of the deceased and gave Tangiya blows to the deceased. The deceased received multiple injuries and succumbed to those injuries.

Mr. Utkal Pradhan has argued that the appellant had also sustained injuries in the same incident and was examined, by Dr. Mamta Thakur (P.W. 7), who found a contusion on the left leg of the appellant. The MLC report of the appellant has been proved as (Ex-P-10). The contents of the'' report would show that it was a contusion of 2 inch x 1 inch near the left knee.

Admittedly, the appellant and deceased were residing separately. It is also an admitted position that the deceased firstly quarreled with his father, threatened him to cause his death, and thereafter he took a Tangiya and went to the house of the appellant. There he started quarrel with the appellant, and in the said process, he had assaulted the appellant, and then only the appellant snatched the Tangiya and assaulted the deceased. The above circumstance would show that the deceased was aggressor who came to the house of the appellant with Tangiya and started quarrelling with the appellant. We are of the view in the above facts and circumstances of the case, the right of private defence accrued in the favour of the appellant because in the said situation, the apprehension of the appellant was justified that if appellant would not have snatched the Tangiya and assaulted the deceased, the deceased would have assaulted the appellant or would have committed murder of the appellant.

Now we shall examine as to whether the appellant had proportionately exercised the right of private defence or he exceeded the power given to him by law by causing the death of the deceased?

The right of private defence, as stated above, is made subject to certain restrictions. In the first instance, the right, in no case, extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. If, therefore, a person exercising the right of private defence causes death where it is not necessary to do so for the purposes of such defence, he exceeds the power so given to him by law under Exception 2 of Section 300 IPC. The question of the operation of Exception 2 arises only if the alleged offender exceeds the right of private defence subject to limitations that he caused death of a person without premeditation and that the death of the deceased was without any intention of doing more harm than what was necessary for the purpose of defence.

In Ranbir Singh and Others Vs. State of Haryana, .,'' It was held that the benefit of Exception 2 to Section 300 may be available if the accused was not the aggressor. The burden of proving self-defence is always on the accused but it is not as onerous as the one which lies on the prosecution. Such burden can be discharged by probabilising the defence. The accused may discharge his onus by establishing a mere preponderance or probabilities either by laying basis for that plea in the cross-examination of the prosecution witness or by adducing defence evidence.

In the instant case, admittedly, the deceased was the aggressor. He came to the house of the appellant having armed with a Tangiya. He assaulted the appellant. The appellant had received injury on account of assault given by the deceased. The deceased has threatened his father to commit his murder. It is in this situation in quarrel, the appellant snatched Tangiya from the hands of the deceased and gave him repeated Tangiya blows. We are of the view that after snatching the Tangiya from the hands of the deceased, single blow or like force was sufficient to expel the deceased from the house of the appellant. The appellant dealt with multiple blows, therefore, the case of the appellant was one of exceeding the right of private defence and in such situation, the appellant would be liable for punishment under Part-I of Section 304 IPC. For the foregoing reasons, the appeal is partly allowed. The conviction and sentence awarded to the appellant u/s 302 IPC are set-aside. Instead thereof, the appellant is convicted u/s 304I IPC and sentenced to undergo R.I. for 10 years. The appellant shall be entitled to setoff the period already undergone.