Raju and Another vs State of M.P.

S.K. Kulshreshtha, J.

The two appellants have preferred this appeal against the judgment dated 16.2.1990 of the learned First Additional Sessions Judge, Jabalpur, by which the appellant No. 1 has been convicted for an offence u/s 302 read with section 34 of the Indian Penal Code and the appellant No. 2 for an offence u/s 302, I.P.C. and each of them has been sentenced to imprisonment for life.

The two appellants were tried along with co-accused Pappu alias Rajkumar, who has been acquitted on the prosecution story that the appellants harboured on impression that the deceased Subhash was making their father drink liquor and they were, therefore, quite annoyed. On 21.9.1988, at about 8.00 P.M. it is alleged that the appellants, in the common court-yard of their house and that of the deceased Subhash, started hurling filthy abuses on Subhash stating that he had made their father drink liquor. When the deceased Subhash came out of his house, it is alleged that the appellant Raju and co-accused Pappu caught hold of his hands and accused Guddu alias Ravikumar gave him successive blows of knife, causing several injuries. The witnesses tried to save Subhash but the accused ran away. The deceased Subhash fell down on the ground gasping for his life and his brother P.W. 8 Sharad Chandra took him to the Police Station Belbagh and from there the deceased was taken to the Victoria Hospital. P.W. 8 Sharad Chandra lodged report at the police station, which is Ex. P-11.

On learning about the death of Subhash, the Station House Officer, S.D.A. Tiwari (P.W. 13) held inquest vide memo Ex. P-12. He also prepared spot map Ex. P-13 and thereafter sent the dead body for post-mortem examination to the Medical College Hospital, Jabalpur. Vide memo Ex. P-3 he effected seizure of samples of blood-stained and plain earth, vide Ex. P-4 the clothes removed from the dead body were seized, vide Ex. P-5 Bush Shirt of Rajkumar was seized and vide Ex. P-6 Bush-Shirt and Baniyan of Rajkumar were seized while vide Ex. P-7 a shirt of Guddu was seized.

Accused Guddu was interrogated and he gave information which was recorded vide memo Ex. P-8 and at the instance of the accused, ''GUPTI'' (Art. ''J'') was recovered and seized vide seizure memo Ex. P-9

The autopsy was performed by P.W. 14 Dr. D.K. Sakalle - on 22.9.1986, who noticed several injuries on the body of the deceased on external examination. There were four stab wounds and one incised wound in addition to two bruises. The doctor gave his report Ex. P-22 and as per the opinion of the doctor, cause of death was hemorrhage and shock as a result of cumulative effect of stab injuries. The death was homicidal, and the said injuries were sufficient to cause death in the ordinary cause of nature.

After investigation, the accused were prosecuted. The accused denied having committed any offence, and claimed to be innocent but did not lead any evidence indefence. The accused Guddu also submitted in writing to the effect that he was in his house and on hearing the alarm raised by his brother Raju, he noticed that Raju was lying on the ground and deceased Subhash had mounted on him with knife in his hand and apprehending that Subhash might kill his brother, he gave a blow on the back of the deceased and the deceased then got up to stab him and during altercation, himself received injury in his chest. In the written statement of defence, the accused Raju also has supported the stand taken by the accused Guddu. However, the learned trial Court found the two appellants guilty and convicted and sentenced them, as staled above.

We have heard learned counsel for the parties and perused the record.

The eye-witness account has been rendered by the prosecution through P.W. 4 Dularibai, the mother of the deceased, P.W. 5 Ushabai, sister of the deceased, P.W. 6 Jairam having tea-stall adjoining the house of the deceased P.W. 8 Sharad Chandra, the brother of the deceased who had lodged the F.I.R. Ex. P-11, P.W. 9 Bhairav Prasad, father of the deceased and P.W. 12 Gitabai, widow of the deceased. P.W. 4 Dularibai has deposed that the two appellants and the acquitted - accused Pappu had come to liter house and Raju and dragged Subhash upto the Court-yard, where Raju and co-accused Pappu and Guddu had started beating him. She has not been able to slate as to with what the accused Guddu had assaulted him (Subhash). She has stated that she tried to save her son and that her son had fallen down on the ground and the accused had run away. P.W. 5-Ushabai has stated that when the appellant Raju started abusing, the deceased Subhash raised his hand to beat him but Raju caught hold of him and took him to the court-yard, where the appellant Guddu stabbed him. She has also stated that the deceased Subhash continued to keep the accused Raju in his hold and took him upto the police station. P.W. 6 Jairam has stated that on hearing the cries-for help, he rushed to the spot, where he saw that the deceased Subhash had kept Raju in his grip and has informed him that Guddu had stabbed. The Police Station was hardly at any distance from the said place. P.W. 8 Sharad Chandra, who has lodged the First Information Report in this case, has stated that his mother and wife of the deceased as also his father were trying to save the deceased from the accused - persons and it is when he reached the spot, the accused Guddu stabbed Subhash on his chest and shoulder and ran away. According to him, at that point of time, the accused Raju and the acquitted accused Pappu were holding the deceased. He also admits that the deceased Subhash continued to hold the accused Raju and took him right upto the gate of the police station. P.W. 9 - Bhairav Prasad has also stated that during the course of the incident, Guddu took out a Gupti and assaulted Subhash. P.W. 12 Gitabai witnessed the incident right from the beginning and she has stated that when the deceased Subhash gave a slap to Raju both started grappling and abused each other and at that point of time the accused Guddu came there armed with a knife and stabbed him twice in his back. The accused Pappu also came there and stabbed the deceased in his chest twice. She admits that her husband Subhash, even when he had fallen down, had kept the accused Raju in his grip.

If the eye-witnesses account, as rendered through the above witnesses is analysed, it becomes clear that initially the incident started on account of a trivial quarrel between the deceased Subhash and the appellant Raju, in the course whereof the deceased had over-powered the appellant Raju and had kept Mm in his grips. The testimony of the wife of the deceased, namely P.W. 12 Gitabai also clearly suggests that the deceased had slapped Raju and thereafter grappling between the two had started. The evidence also clearly spells out that the appellant Guddu had come to the place of the incident after grappling had already started and had then assaulted the deceased with knife and caused him injuries but still his brother Raju continued in the grips of the deceased who took him right upto the police station. Sequence of events, as narrated by the prosecution witnesses, clearly ruled out common intention between the two appellants, as it is not even clear that during the course of the grappling in which'' the deceased had fallen down the appellant Raju, the appellant Raju even was aware that his brother Guddu had arrived.

Under these circumstances, no common intention to cause death of the deceased Subhash can be attributed to the appellant Raju in respect of the act of the appellant No. 2 Guddu, and the conviction of the appellant Raju for offence u/s 302/34, I.P.C. can not, therefore, be sustained. The appellant Raju is, therefore, acquitted of the charge against him and his conviction and sentence is set aside.

This brings us to the question of conviction and sentence passed against the appellant Guddu alias Ravikumar. It is clear from analysis of the evidence of the eye-witnesses that in the initial part of the incident, this appellant had not participated and had arrived at the scene of occurrence only after the grappling between his brother Raju and the deceased has started, in which the deceased had over-powered the accused Raju.

Under these circumstances, it would not be unreasonable to infer that at these point of time, the attention of Guddu was drawn to the incident, he may have harboured impression that his brother was being belabored by the deceased Subhash and that soine harm was likely if he did not intervene. Apparently, the step taken by the appellant No, 2 Guddu was with a view to save his brother from the clutches of the deceased, without any knowledge about the origin of the incident and as deposed to by the wife of the deceased, P.W. 12 Gitabai, as also the other witnesses, the deceased has not allowed the accused Raju to extricate himself from his grip even after having received a number of stab wounds at the hands of the second appellant. The second appellant had therefore reason to harbour - an impression that harm may he caused to his brother and to save his brother, he pounced upon the deceased with a knife and caused him several injuries. The act of the appellant Guddu, though in exercise of right of private defence of person of his brother, was far in excess of the right as he caused as many as four stab wounds and one incised wound, resulting in injury to the left arm, chest, face and shoulder and one of the injuries even perforated the lung and, this he exceeded the power granted by law. Learned counsel for the appellants has referred to the decision of the Supreme Court in Partap Vs. The State of Uttar Pradesh, and Yogendra Morarji v. State of Gujarat ( AIR 1980 S.C. 960) and has contended that the right accrues merely upon an apprehension and it is not necessary to wait till harm is actually caused and in the facts and circumstances of the case, if the appellant No. 2 acted with a view to save his brother from harm being caused, his act was covered by sections 96 and 100 of the Indian Penal Code and was not an offence as a right of private defence could be exercised even in the case of the apprehended harm to the body of any other person. It is to be borne in mind that the appellant Raju and the deceased Subhash were totally unarmed and were grappling at the time the second appellant Guddu alias Ravikumar intervened. Under these circumstances, the second appellant could have had no reason to apprehend grievous hurt to his brother and, therefore, he clearly exceeded the said right in causing the death of the deceased Subhash, in the facts and circumstances of the case.

Under the circumstances, even though there was no pre-meditation to cause the death of the deceased, the accused did not have a right to cause death by giving successive knife blows and the act of the appellant No. 2 would fall within Exception (2) to section 300 of the Indian Penal Code and though the act would not amount to murder, it would still be an offence punishable u/s 304 Part I of the Indian Penal Code.

Accordingly, we find that the appellant No. 2 is not guilty of offence punishable u/s 302, I.P.C. but an offence punishable u/s 304 Part I of the Indian Penal Code.