Ramchandra Chamru vs State of Madhya Pradesh

Choudhuri, J.—The appellant Ramchandra son of Chamru was prosecuted u/s 302 of the Indian Penal Code for the murder of one Laxman son of Tima of Umrer. He was convicted u/s 304, Part I, of the Indian Penal Code, and sentenced to rigorous imprisonment for a period of ten years by the First Additional Sessions Judge, Nagpur.

Ramehandra used to visit the house of Mst. Yashodi (P. W. 1) frequently as he had illicit connection with her. On the night of the 31st July 1952 he went to her house as usual. Laxman, who was the brother of Mst. Yashodi, happened to go there and finding Ramehandra sitting with his sister beat him with a lathi. Ramehandra left the house of Mst. Yashodi. Laxman followed him. There was a scuffle between them when they grappled with each other. During this scuffle Ramehandra stabbed him with a ''gupti'' and escaped. Laxman was removed to the house of his sister Mst. Yashodi where he succumbed to the injury inflicted by Ramchandra. The above facts are not now disputed.

The defence of the appellant Ramehandra was that he was beaten with a stick by Laxman inside Mst. Yashodi''s house. He managed to release himself from his clutches with great difficulty and as he was running towards his house he was chased by Laxman who gave him some more blows with his stick and then grappled with him and wanted to throttle him. He struggled to free himself and though he cried for help he received none. During this struggle he pulled out a stick which he had picked up from the house of Mst. Yashodi and which Laxman had kept pressed by his foot during the scuffle. As he pulled out this stick Laxman lost his balance and fell forcibly on it receiving the injury. He stated that he did not know that this stick was a weapon and pleaded that he never intended to kill Laxman. He stated that he used the stick thinking it to be stick in order to save himself but unfortunately it hit the deceased.

The learned Additional Sessions Judge held that the accused exceeded the right of private defence in causing the death of Laxman and convicted him u/s 304, Part I, of the Indian Penal Code as stated above. The appeal is directed against this finding of the trial Court. The only ground raised is that the case fell within the purview of Section 100 of the Indian Penal Code and the appellant ought to have been acquitted.

The learned Counsel for the appellant referred to paragraphs Nos. 24, 25, 28 and 80 of the judgment of the Additional Sessions Judge, and argued that the circumstances under which the appellant had inflicted the injury to Laxman justified the plea of self-defence, It was contended on behalf of the appellant that when be was assaulted by Laxman he was not bound to modulate his attack and with the instinct of self-preservation upon him he pursued his defence a little further. He was justified in doing so and he cannot be said to have exceeded his right of private defence. The learned Counsel for the appellant relied on the decision in - Sitaram v. Emperor AIR 1925 Nag 260 (A) in support of his contention.

The learned Additional Sessions Judge has come to the conclusion that the appellant had received six stick blows from deceased Laxman before there was grappling between them near Kacharu''s house. It is also clear from the evidence of Bhullu (P. W. 4) that during the scuffle which ensued after the appellant was beaten several persons who had assembled near the house of Mst. Yashodi had approved of Laxman''s action, so that the appellant may be prevented from visiting Mst. Yashodi''s house. There is also satisfactory evidence to show that the stick (Article D) which was used by Laxman in beating the appellant was a fairly heavy stick which according to Dr. Phadke could cause a fatal blow.

The learned Additional Sessions Judge has also after weighing the oral evidence on record come to the conclusion that the deceased was in an advantageous position even during the grappling and therefore the appellant was entitled to defend his body against the attack by the deceased. The appellant''s right of private defence commenced at the stage when he received stick blows from the deceased during the assault which took place near Kachru''s house. It has been established that immediately after Laxman gave two stick blows to the appellant, Laxman''s stick fell down during the scuffle between him and the appellant. It is thus clear that when the deceased was stabbed by the appellant during the scuffle he had no lathi in his hands. There could therefore be no reasonable apprehension in the mind of the appellant that Laxman would cause grievous hurt or death.

The appellant in his defence stated that when Laxman grappled with him he wanted to kill him by throttling. Goma (D. W. 1) has deposed that Laxman was pressing the neck of the appellant Ramchandra with both of his hands. His evidence was not believed by the learned Additional Sessions Judge in view of the fact that he is closely related to Mst. Yashodi (P. W. (1) who has been trying to shield the appellant. Dr. Phadke who examined the appellant soon after the occurrence did not find any marks of violence on his neck. Kachru (P. W. 2), Bhullu (P. W. 4) and Yashoda (P. W. 12) do not support the version given by the appellant. Ramdayal (P. W. 11) was evidently influenced. He was disbelieved when in his cross-examination he stated that the appellant''s throat was being pressed by Laxman immediately before he was struck.

In order to establish an exercise of the right of private defence, it is absolutely necessary to detail the exact circumstances which led the accused to strike the blow in question with his ''gupti'', and obviously such a defence can seldom be successfully made out when the accused''s case is that he did not strike the blow at all. In his replies to questions Nos. 17 to 20, he has persistently maintained that he did not stab Laxman during the scuffle. He stated that he lost his balance and Laxman fell on his chest and cried out "Oh father, I am dead". Immediately after, he ran away.

In - Dhirendra Nath Vs. State, it has been held as follows:

A plea of the right of private defence can be taken by a person who admits the act charged against him, but pleads an excuse. If a person, however, states that he had not done the act at all, it is difficult to see how at the same time the question of a right of private defence would arise. Whether or not an accused person, taking a plea of the right of private defence, is to prove it in the same manner as the prosecution is required to prove its case or whether a lower standard of proof would suffice, the accused must, at least, make a case out of which a plea of the right of private defence might arise.

It is true that an accused person taking the plea of the right of private defence is not required to call evidence but can establish that plea by reference to circumstances transpiring from the prosecution evidence itself. But the question in such a case would be a question of assessing the true effect of the prosecution evidence and not a question of the accused discharging any burden.

The right of private defence u/s 96 of the Indian Penal Code is qualified by Section 99 ''ibid'' which lays down that a right of private defence in no case extends to the inflicting of more harm than it is necessary for the purpose of defence. If merely during the course of a hand-to-hand scuffle with an unarmed person, as the facts indicate here, the appellant pulled out his ''gupti'' and stabbed the deceased it is very difficult to accept that he did so in the exercise of his right of private defence. I see no reason to disagree with the finding of the learned Additional Sessions Judge that the appellant in stabbing the deceased had exceeded his right of private defence.

The next question for consideration is the sentence of ten years rigorous imprisonment which has been awarded by the trial Court. The trial Court came to the conclusion that the appellant was entitled to defend his body against the attack by the deceased Laxman. There has been criminal intimacy between the appellant and Mst. Yashodi (P. W. 1), and the appellant had gone to her on invitation. It was by chance that the deceased happened to arrive there and took objection to the visit of the appellant. It is in the evidence of Mst. Yashodi that she had remonstrated to her brother for beating the appellant as she herself had called him. Taking into consideration the entire circumstances, the sentence of ten years rigorous imprisonment, in my opinion, would be too severe a punishment in the present case. I therefore reduce the sentence to five years rigorous imprisonment.

With the above modification in the sentence, the appeal fails and is dismissed.