1 HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 207 of 2001 Decided on: February 25, 2011. State of H.P. …Appellant. VERSUS Ram Chander @ Rama & anr ….Respondents. Coram The Hon’ble Mr. Justice R.B.Misra, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?. Yes. For the Appellant: Mr.R.K. Sharma, Sr. Additional Advocate General with Mr. Rajinder Dogra, Addl. AG For the respondents: Mr. Anup Chitkara, Advocate Surinder Singh, Judge (Oral) Accused respondents were charge sheeted, tried and acquitted for the offence punishable under Section 302/34 of IPC, for allegedly causing the death of Sh. Sultan Khan. As such, their acquittal has been challenged by the State in the present appeal. 2. Heard and gone through the record. 3. Undisputed facts of this case are as under: (i) Accused Ram Chander and deceased Sultan Khan were neighbours and working as labourers. 2 During the intervening night of 23/24.4.2000, both were engaged by Devinder Singh, complainant (PW-3) for putting lintel of his house which continued till midnight; (ii) Thereafter the food was served to all the labourers by the complainant in the house of his brother. Deceased Sultan Khan finished his food and left the place earlier to accused Ram Chander and went to the house of respondents and entered the room of accused Mahendro Devi @ Mahendro, wife of Ram Chander accused, was sleeping with her minor children. He tried to outrage her modesty and commit rape. She offered resistance and scuffled with him. The deceased lowered his pant and the band of her trouser waist faggot was broken. In the meantime, her husband, Ram Chander, entered the room, seeing the deceased outraging the modesty of his wife, tried to over-powered him and tied his hand, legs and neck with a jute rope, with the intention to tell the villagers next day and show his conduct, but during the night, he died of 3 asphyxia. In that event, the deceased as well as accused persons scuffled and sustained injuries. (iii) Devinder Singh (PW3) informed Sarita Sharma (PW-5) Pradhan telephonically about the incident. In turn, she apprized police on phone. Thereafter, police reached the spot and recorded the statement of (PW-3) Devinder Singh under section 154 of Cr.PC, which culminated into FIR Ex PF/1, under section 302 read with section 34 of IPC. The dead body of Sultan Khan was taken into possession from the house of the respondents. (iv) Inquest papers Ex PE were prepared. Police also prepared site plan Ex PL on the spot. (v) Dead body was sent for autopsy. The report of the postmortem is Ex PE. Following injuries were noticed by the doctor on the dead body:- Injuries 1. Forehead 3 cm above left eyebrow, reddish brown contusion, size 3 cm X 1 cm with soft tissues swelling (Ante mortem); 2. Scrotum-There was lacerated wound (a) over anterior part of scrotum (as shown in the figure) (b) testicular covering was congested. Lacerated wound with irregular margins over anterior part of scrotum exposing whole of the left testes and part 4 of the right testes. Left testes congested (Ante mortem injury); 3. Mark of ligature- The rope was tied around the neck in four circles as shown in the diagram. After removing the rope, the skin underlying the rope was bearing the imprint of rope skin whitish and abraided. The skin in between the pressure mark of rope was deeply congested and swollen. The mark encircled whole of the neck and there was simple knot in front of the neck. On dissection of skin of neck, the tissues were congested and pooling of blood was there in between the ligature marks. Thyroid cartilage was fractured partly and hyoid bone was intact. No fracture of cervical vertebra was seen. The wrists and thigh also bore imprint mark of tied rope as described in the figure. (vi) In the opinion of the doctors, the most likely cause of death was by asphyxia, caused due to strangulation by rope (homicidal). The time between injury and death was within 5 minutes and between death and post mortem within 24 hours. All the aforesaid injuries were ante mortem. The viscera was handed over to the police for its further analysis , but the final opinion of the doctors remained the same. 5 (vii) Respondents were also medically examined. Doctor noticed minor injuries on their person suggesting scuffle. 4. Learned trial court held that respondents had been well within their right of private defence, thus acquitted the respondent. 5. The short point, involved in this case is, whether the accused/respondents acted in right of private defence against the above admitted position?. 6. Section 100 of the Indian Penal Code deals with a situation when the right of private defence of the body extends to causing death. This section justifies the killing of an assailant when apprehension of atrocious crimes enumerated in the several clauses thereof, is caused. This has to be read with subject to the provisions of section 99. Third clause of section 100 aforesaid provides that such a right is available to an assault with the intention of committing rape. Thus the right of private defence of body of a person’s life extends to the voluntary causing of death if the offence which occasioned the exercise of the right was an assault with intention of committing rape. 6 The defence taken by the accused- respondents stands probablized by the statement of PW- 13 Virender Singh, Investigating Officer, who admitted the above facts and without mincing any word stated that during investigation he found that the deceased had entered the house of Mahindro Devi and attempted to rape her. He also admitted that string of salwar of Mahindro Devi was broken and she was naked. Broken string was taken into possession vide Ex PG. (PW-4) Surjit Singh has also supported the defence raised. 7. To bring a case within the ambit of any of the clause of section 100 aforesaid, one is not required to prove his case with mathematical precisions and beyond reasonable doubt. The onus stands discharged by making out a case for the exercise thereof on probabilities. In the instant case, respondents have probabilised their defence and the conclusion arrived at by the learned trial court cannot be said to be perverse. 8. On the scrutiny of the evidence against the above given facts and legal position we find that the respondents had acted in right of private defecne, thus have the legal protection. 7 9. Therefore, for the reasons aforesaid, in our considered opinion, acquittal of the respondents is correct, based upon the ultimate analysis of the evidence on record in the background of the law discussed. 10. In view of the above, appeal filed by the State is without merit and is accordingly dismissed. 11. The respondents are discharged of their bail bonds entered by them at any time during the proceedings of this case. Send down the records. (R.B.Misra), J. February 25, 2011 (Surinder Singh),J. (sl)