iminal Appeal No 67 of 1971
Appeal by special leave from the judgment  Order dated the 17th July 1970 of the Gujarat High Court in Crl
A Nos 287 and 128 of 1969
R H Dhebar and R N Sachthey for the appellant
A section Qureshi Vinal Deve and Kailash Mehta for the respondents
The Judgment of the Court was delivered by UNTWALIA J
There is a locality known as Nani Malokoad in the town of Kaloy District Mehsena Gujarat
In this locality is a road lane running north to south
Bai Fatima respondent No 1 in this appeal filed on grant of special leave by the State of Gujarat is the wife of Allarakha Hussemkhan
He had a younger brother named Gulabkhan Husseinkhan
The victim of the occurrence is the said Gulabkhan
Both the brothers had their houses adjacent to each other in this lane facing east
The northern one was in occupation of and belonged to the deceased and the southern one was of Allarakha
There are a number of other houses situated around the houses of the two brothers
One such house is of Sardarkhan Muradkhan facing west abutting the road two houses north of the house of the deceased
Jamiyatkhan is the son of Sardarkhan father in law of the deceased Gulabkhan
In the month of June 1968 a complaint was made to the Kalol Municipality by persons of the locality including the deceased and some of the prosecution witnesses that Allarakha husband of respondent no1 was discharging dirty water of his house towards East which collects on the road and causes nuisance to the residents of the locality
That had caused friction between the families of the two brothers
On 2761968 according to the prosecution story there were two incidents in the Angana ie space on the road in front of the houses of the parties one was at 530 pm and the other at 630 pm
The prosecution case is that a she goat of Gulabkhan strayed in the house of Fatima She began giving blows to the goat
There were altercations between the members of the families of the two brothers
Res pondent no2
who is a married daughter of respondent no1 and her son Liyakat who was 15 years old on the date of occurrence were also present at the time of this quarrel
They threw stones which hit PW3 Nannubibi wife of deceased Gulabkhan one Rahematbibi and PW 4 Noorbibi a neighbourer and a close relation of Nannubibi Respondent no1 is said to have come out with a stick from her house and went to Gulabkhan to strike him
One Allarakha Rehman a close neighbour came there caught hold of the stick quietened respondent No 1 and sent her back to her house The second part of the story is that Gulabkhan and Nannubibi went and sat in the Angana of 995 Jamiyatkhan son of Sardarkhan father in law of Gulabkhan
Respondent No 1 about an hour later went with a stick in her hand and hurled a blow on Gulabkhan
Nannubibi intervened and got the blow on her right hand finger
Gulabkhan directed respondent no1 to go back to her house by gestures of his hand and he also proceeded and pushed her towards her house
When Gulabkhan reached the Angana of his house respondent no1 is said to have put her leg across his legs with the result that he fell down on his back
Respondent no2 caught hold of the hands of Gulabkhan
Respondent no1 sat on his legs and squeezed his testicles and pulled them
The boy Liyakat is said to have bitten the deceased on the left shoulder
Gulabkhan thereafter was made to recline on a cot
Eventually he
died of the shock due to the pressing of his private parts by respondent No 1
Information was sent to the Police Station
A complaint of Nannubibi was recorded at about 1030 pm
Liyakat was sent for trial before the Juvenile Court
Respondent nos
1 and 2 were tried by the Sessions Judge Mehsana
The learned Sessions Judge held the prosecution story to be proved beyond reasonable doubt in all material particulars
Finding that the injury caused to Gulabkhan in ordinary course of nature may not be sufficient to cause his death but was likely to cause his death he convicted respondent no1 under section 304 Part I of the Indian Penal Code and sentenced her to undergo rigorous imprisonment for 7 years
She was further convicted under section 323 and was given a concurrent sentence for 3 months under this count
Respondent no2 was convicted of an offence under section 323 read with section 114 of the Penal Code and was sentenced to undergo rigorous imprisonment for 3 months
The respondents filed an appeal in the Gujarat High Court from the order of conviction recorded against them and the State went up in appeal for their conviction under section 302 of the Penal Code read with section 114 in the case of respondent no2 The State appeal was dismissed by the High Court and that of the respondents allowed
The State came to this Court and obtained special leave from the judgment of acquittal recorded by the High Court in the respondents appeal
The dismissal of the State appeal by the High Court is final
The three eye witnesses to the occurrence are PW3 Nannubibi PW4 Noorbibi and PW6 Jenatbibi
The latter two are neighbourers and related to Nannubibi
The Trial Judge believed their evidence
He also believed the evidence of PW7 Gulamanabi Shermohmad a close neighbour of the parties to whom an oral dying declaration is said to have been made by Gulabkhan before his death
It may be stated here that PW8 Rasulbhai was sitting in the Bazar at some distance from the place of occurrence in the evening of the 27th June 1968
He got the information at about 945 pm about the death of Gulabkhan
He rushed to the Police Station and merely informed about his death
It is also necessary to note here that respondent no1 had received some injuries on her person in either of the incidents which took place 996 on the evening of 27th June 1968
Prosecution did not explain the injuries on her person but the Trial Judge inferred that they must have been caused in the first incident which took place at 530 pm and not in the second which was the subject matter of the charge against the respondents
The High Court has held in favour of the prosecution on the main part of the occurrence namely squeezing of the testicles of the deceased by respondent no1 as a result of which he died
Yet it has disbelieved the prosecution case in regard to some other aspects
It has not accepted the prosecution story that there were two incidents in the evening
Nor has it accepted the version that shortly after the first incident Gulabkhan and Nannubibi had gone to the Angana of Jamiyatkhan
The story of falling down of the deceased by the tripping of his legs by respondent no1 has been discarded by the High Court
So also the evidence of PW7 Gulamnabi
Even after believing the main part of the occurrence the High Court has exonerated respondent No 1 of the charges levelled against her and consequently respondent no2 also on the ground that she must have done so in exercise of her right of private defence in as much as she must have squeezed testicles of the deceased when he was showering blows with a stick on respondent No 1 in order to protect herself
In our opinion there are two many conjectures surmises and contradictions in the judgment of the High Court
The respondents bad not examined any witness to give any counter version of the occurrence or to justify the assault on testicles of the deceased which resulted in  his death
The High Court has said in its judgment  1 There is also no doubt that since some days prior to the date of the incident the relations between the deceased and the family of accused no1 were not cordial 2 There is no doubt that a quarrel did arise on that day meaning thereby the date of occurrence between the deceased and accused No 1 in respect of a goat 3 It is very reasonably clear that the squeezing of the testicles of the deceased was in all probability the act of accused no1 4 There is further no doubt that the deceased did die on account of squeezing of his testicles in the evening that day at round about 830 pm On the findings aforesaid if the claim of right or private defence put forward on behalf of respondent no1 was untenable as we shall show hereinafter it was wholly so then it is plain that the High Court ought not to have interferred with the order of conviction recorded by the Trial Court
Even in face of the said findings the High Court criticized the prosecution case as regards some details of the occurrence or the incidents and rejected a good portion of it
We shall briefly show that the said rejection by the High Court was wholly unjustified
997 There were two incidents according to the prosecution case which happened in the evening at an interval of about an hour
High Court says it was not so and says so without any basis
The prosecution did not stand to gain anything by splitting up the evening incident in two parts
Even in the First Information Report Ext32 recorded at 1030 pm in the night the two incidents were separately narrated
There was absolutely no reason for the High Court to interfere with the findings of the Trial Court in that regard
The High Court does not accept the prosecution story that deceased Gulabkhan had gone to the Angana of Jamiyatkhan and respondent No 1 went there as an aggressor with a stick in her hand
This story has been discarded on the ground that it is not mentioned in the First Information Report nor in the statements of the other two witnesses before the police
We may observe again that the prosecution did not stand to gain anything by unnecessarily or falsely introducing the story of Gulabkhan s going to the Angana of his father in law
The main occurrence happened in the Angana of Gulabkhan
The places are so very near that the story of Gulabkhan going to the Angana of his father in law was not an important one to be remembered by the witnesses to be recited before the police
It mattered little whether respondent no1 went as an aggressor to the Angana of the deceased or a bit further North to the Angana of Jamiyatkhan
High Court also discarded the story of the tripping of the legs of Gulabkhan because it is not mentioned in the First Information Report
But then it ought to hive been noticed that no such contradiction was to be found in the evidence of PWs 4 and 6 in Court and their statements before the police
It must therefore
be presumed that they had given out the tripping story before the police
The High Court has not thought it safe to rely upon the evidence of the three eye witnesses none of whom was found to be disinterested in the prosecution
The comment is that Allarakba Rehman and Mansabu who lived in the house opposite to the deceased have not been examined by the prosecution
According to the prosecution case the said Allarakha had merely quietened respondent No 1 in the first incident and Mansabu came after the second incident was over
In material particulars we find the evidence of the eye witnesses very convincing and natural
In our opinion the High Court was not justified in thinking that it was not safe to rely on their evidence wholly and specially when the main part of the occurrence which fastened the guilt on respondent no1 was not disbelieved
Absence of any details in the statement recorded at the police station on the basis of the information given by PW 8 Rasulbhai unnecessarilly led the High Court to remark that no one knew upto 1000 on as to how Gulabkhan died
This contradicts the earlier findings of the High Court that he died as a result of the squeezing of his testicles by respondent no1 Rasulbhai according to his evidence did not get the details of the occurrence and so did not give any to the police
998 The High Court has given 3 or 4 reasons for discarding the evidence of PW7 Gulamnabi to whom the oral dying declaration is said to have been made by the deceased
The first reason given by the High Court is that when this witness went near Gulabkhan the three women who claimed to have witnessed the occurrence were sitting near him none of them related the story to Gulamnabi
he put a question to Gulabkhan who being in a position to give the answer gave it it was not necessary for him to talk to the women thereafter
Gulamnabi was the person who had gone to call Dr Rao to examine Gulabkhan
Dr Rao came at 830 pm and declared him to be dead
It was not necessary for Gulamnubi to relate the details of the occurrence to Dr Rao as he himself had not witnessed it Another reason given for discarding the evidence of Gulamnabi is with reference to the evidence of Rasulbhai that upto 1000 pm no one knew the exact reason for the death of Gulabkhan
Having accepted the prosecution story about the cause of his death it was unnecessary to dilate upon the matter any further
The High Court has not disbelieved the lodging of the complaint before the police on the statement of Nannubibi at 1000 pm
The last reason given is the non examination of Dr Rao by the prosecution
His evidence was of no use to it and the comment of the High Court is not therefore justified
We have unhesitatingly come to the conclusion that the Trial Court was right in believing the evidence of the prosecution witnesses in regard to both the incidents and the occurrence in question forming part of the second incident
The High Court differed from the view of the Trial Judge on flimsy and unsustainable grounds
Now we come to deal with the question of right of private defence
It is no doubt true that the prosecution did not explain the injuries on the person of respondent no1
PW5 Dr section C Masalia who had examined the injuries on the side of the prosecution also examined  Fatima respondent no1 when she was sent to him by the police
Fatima Bibi had lodged a complaint before the police which was found to be a non cognizable offence at about 800 pm on 27 6 1968
That is Ext 44
In this complaint she stated that her young one of the goat had gone in the Angana of Gulabkhan
Three persons named  in the complaint were Gulabkhan Bai bibi mother in law of Gulabkhan and Nannubibi his wife
The two ladies caught hold of her Odhana and began to give her blows
of kicks and fists Gulabkhan gave stick blows on the right hand and so she fell down on the ground and began to shout
The injuries found on the person of Fatima Bibi were 5 in number
Three contusions on the right forearm one contusion on posteric parietal part of right side of scalp and one contusion on scapular part of right side of back
The injuries were all of minor character
In her statement under section 342 of the Code of Criminal Procedure 1898 respondent No 1 stated almost the same story and added that Gulabkhan was drunk while he was abusing her
Neither in Ext44 nor in the statement under section 342 there was a whisper by by respondent no1 of her having squeezed the testicles and the private part of Gulabkhan
Nothing was stated to give any inkling of her having squeezed the testicles of Gulabkhan 999 in exercise of her right of private defence to protect her from further assault
Nor was any evidence adduced in Court to give any counter version of the occurrence
No foundation was laid to enable the court to acquit the respondents granting them a right of private defence
It did require a pure conjecture and imagination to hold the respondents not guilty by extending to them the right of private defence
In a situation like this when the prosecution fails to explain the injuries on the person of an accused depending on the facts of each case any of the three results may follow  1 That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence
2 It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt
3 It does not affect the prosecution case at all
Question is in which category the present case falls  In Munhi Ram and others vs Delhi Administration1 Hegde J delivering the judgment of this Court has said at page 458 It is true that appellants in their statement under section 342 Cr
PC had not taken the plea of private defence but necessary basis for that plea had been laid in the cross examination of the prosecution witnesses as well as by adducing defence evidence
It is well settled that even if an accused does not plead self defence it is open to the Court to consider such a plea if the same arises from the material on record see In Re jogali Bhaige Naiks and another AIR
The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record
 In the instant case not only the plea of private defence was not taken by the respondents in their statement under section 342 but no basis for that plea was laid in the cross examination of the prosecution witneses or by adducing any defence evidence
In our opinion the burden of establishing that plea was not discharged in any manner by the respondents even applying the test of preponderance of probabilities in favour of that plea
There is absolutely no material in the records of this case to lead to any such conclusion
We do not think that the Trial Judge was right in assuming that respondent No 1 must have received the injuries in the first incident
It may well be that she received the injuries in the second incident
Since prosecution did not come forward to show in what manner she received these 1 1000 injuries assumption can be made to the farthest extent in favour of the respondents that respondent no1 received the injuries with a stick may be at the hands of Gulabkhan or any other person on his side
But surely the assumption could not be stretched to the extent it has been done by the High Court
The High Court is not right in saying that by the tripping of the legs Gulabkhan would have fallen on his face and not on his back
A man may fall on back or on face depending upon the side and the angle of the tripping
The other error committed by the High Court is when it says  It appears to us to be more probable that while the quarrel was going on in the Angana of the deceased and the deceased was delivering blows of stick on the accused No 1 she squeezedhis testicles in order to liberate herself from his attack
It appears that she did so while the deceased was standing and giving blows on her The deceased was wearing a pant and it is impossible to imagine that the squeezing of the testicles could be done by respondent No 1 to the extent of causing his death soon after the squeezing when Gulabkhan was in a standing position
In that position he could have at once
moved back and liberated himself
The extent of squeezing done in this case was possible only if respondent No 1 could sit on his legs after he bad fallen down at his back
This lends further support to the prosecution story that respondent No 2 caught his hands from behind meaning thereby from towards the side of his head in the front being respondent No 1 on his legs
In our opinion therefore there was absolutely no basis or material in the records of this case to enable the High Court to record an order of acquittal in favour of the respondents by extending them a right of private defence
Even going to the maximum in favour of the respondents that respondent no1 got the blows with a stick at the hands of Gulabkhan and in the second incident it is manifest that her action of assault on him was a deliberate counterattack to cause him such injury which at least was likely to cause his death
The counter attack could in no sense be an attack in exercise of the right of private defence
In material particulars the evidence of the three eye witnesses as also the evidence of dying declaration of the deceased before PW Gulamnabi is so convincing and natural that no doubt creeps into it for the failure of the prosecution to explain the injuries on the person of respondent No 1
The prosecution case is not shaken at all on that account
1n our judgment this is a case which falls in the third category 1001 as enumerated above
In agreement with the Trial Court we hold that the guilt of both the respondents have been proved beyond any reasonable doubt
For the reasons stated above we allow this appeal set aside the order of the High Court and restore that of the Trial Court as against respondent No 1 as respects her convictions and sentences and as against respondent No 2 only in regard to her conviction
It is no use sending the young girl back to jail for a few months
While maintaining her conviction under section 323114 of the Penal Code we reduce her sentence to the period already undergone
P B R Appeal allowed


Summary:
Respondents Nos 1 and 2 were mother and daughter
The deceased was the brother in law of respondent No 1
For some days before the date of the Occurrence the relations between the two families were none too cordial
On the clay of the occurrence there was a scuffle between the respondents and the deceased
A little later when the deceased was sitting in the house of his father in law in the opposite row of houses respondent No 1 was alleged to have gone to the deceased with a stick to beat him
Some neighbours intervened and tried to pacify both the parties
When the deceased was going out respondent No 1 put her leg across the legs of the deceased as a result of which he fell down on his back
Respondent No 2 immediately caught hold of both the hands of the deceased and respondent No 1 is stated to have squeezed his testicles and pulled them
Eventually the deceased succumbed to the injury
After the incident respondent No 1 lodged a complaint before the police stating that the deceased his wife and his mother in law caught hold of her and gave her blows and kicks with a stick as a result of Which she fell down
Holding that the prosecution case was proved beyond reasonable doubt the Sessions Judge convicted respondent No 1 under section 304 Part I IPC Respondent No 2 was convicted under section 323 read with section 144 IPC On appeal the High Court even after believing the main part of the occurrence acquitted respondent No 1 of the charges levelled against her and consequently respondent No 2 also on the ground that she must have done so in exercise of her right of private defence inasmuch as she must have squeezed the testicles of the deceased when be was showering blows with a stick on her in order to protect herself
Allowing the appeal of the State
HELD  1 The trial Court was right in believing the evidence of the proSecution witnesses in regard to both the incidents and the occurrence in question forming part of the second incident
The High Court differed from the view of the trial judge on flimsy and unsustainable grounds
998 D E 2 There was absolutely no basis or material on the record to enable the High Court to record an order of acquittal in favour of the respondents by extending them a right of private defence
Even going to the maximum extent in favour of the respondents that respondent No 1 got the blows with a stick at the hands of the deceased and in the second incident it is manifest that her action of assault on him was a deliberate counterattack to cause him such injury which at least was likely to cause his death
The counterattack could in no sense be an attack in exercise of the right of private defence
100 F G 3 Neither in her complaint before the police nor in the statement under s342 Cr
PC Was there a whisper by respondent No 1 of her having squeezed the testicles and private parts of the deceased in exercise of her right of private defence
Not only was the plea of private defence not taken by the respondents in their statements under section 342 Cr
PC but no basis for the plea was laid in the cross examination of the prosecution witnesses or by adducing any defence evidence
The burden of establishing that plea was not discharged in any way by the respondents even applying the test of preponderance of probabilities in favour of that plea
There is absolutely no material on the record to lead to any such conclusion
999 G H Munhi Ram and Others vs Delhi Adtministration 19681 2 SCR 455 followed