// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR JUDGMENT IN S.B. Criminal Appeal No.508/2004 1. Ram Kishan S/o Pokar Ram 2. Rohtash @ Pappu S/o Pokar ram 3. Smt. Savita W/o Babu Lal Versus The State of Rajasthan Date of Judgment :::: 8th May, 2007 PRESENT Hon'ble Mr. Justice Narendra Kumar Jain Shri A.K. Gupta, with Shri Rinesh Gupta and Shri J.R. Bijrania, Counsel for accused-appellants Shri V.S. Yadav, Counsel for complainant. Shri Arun Sharma,P.P., for the State //Reportable// By the Court:- This appeal, on behalf of three accused- persons, namely, (1) Ram Kishan S/o Pokar Ram, (2) Rohtash @ Pappu S/o Pokar Ram, and (3) Smt. Savita W/o Babu Lal, is directed against the impugned judgment and order dated 19.4.2004, passed by the Additional Sessions Judge (Fast Track), Behror, District Alwar, in Sessions Case No.82/2003 (46/2003), whereby the learned trial court, while acquitting accused- appellants from the offence under Section 302/34, IPC, and appellant Ram Kishan from the offence under Section 4/25 of the Arms Act, convicted and sentenced the appellants under Section 304/34, IPC, to undergo // 2 // 10 years rigorous imprisonment and a fine of Rs.2,000/- each; in default of payment of fine, each of the accused to further undergo three months additional simple imprisonment. Briefly stated, the facts of the appeal are that on 3.7.2003 PW-13 Prakash Singh, the nephew of deceased Bhopal, lodged a written-report (Exhibit P- 19) at Police Station Shahajahapur, wherein it was mentioned that on 2.7.2003, at about 10-11 PM Savita W/o Babulal came at the residence of Bhopal S/o Bholuram; he was also present at his house. She told Bhopal to go with her as she wanted to ask him about her husband Babulal. Bhopal went with her. At about 12.00 in night, they heard that Bhopal was crying; upon hearing hue and cry, he, his mother Vimla, Rajbala W/o Bhopal and Mamta D/o Bhopal, went at the residence of Savita; they saw that Savita, Ram Kishan and Rohtash were inflicting injuries on the person of Bhopal by sickle ('dantli' – a sharp-edged-weapon), 'lathis' and kicks and fists. They intervened and stopped them from further beating to Bhopal. Thereafter they took Bhopal to hospital but, on the way itself, he died. On the basis of this information, FIR No.140/2003 (Exhibit P-20) was registered under Sections 323, 302/34, IPC. After completion of investigation, the police filed a challan against all the three accused-persons. // 3 // The trial court framed charge against accused Rohtash and Savita under Section 302 read with Section 34, IPC, and against accused Ram Kishan under Section 302 read with Section 34, IPC, and under Section 4/25 of the Arms Act. The accused-persons denied the charge and claimed trial. The prosecution examined 22 witnesses and produced documentary evidence Exhibit P-1 to Exhibit P-43 in support of the charge. Thereafter the statements of the accused-persons were recorded under Section 313, Cr.P.C. The accused Ram Kishan and Rohtash, both, stated that they were not present at the spot at the time of incident. They pleaded alibi in the case. Accused Savita stated that during the intervening night of 2nd and 3rd of July, 2003, she was sleeping in his house alone and at about 10-11 PM the deceased Bhopal entered in her house and tried to commit rape with her; she immediately cried; upon hearing her cry, number of persons came and inflicted injuries on the person of Bhopal Singh. In defence, the statement of DW-1 Kanwar Singh was recorded and documentary evidence Exhibit D-1 to Exhibit D-6 was produced. The learned trial court, after considering the evidence on the record, recorded a finding that deceased Bhopal Singh went at the house of Savita in // 4 // night and committed criminal trespass and relying upon the statement of Smt. Savita recorded under Section 313, Cr.P.C., held that accused-persons had a right of private defence of person, but they exceeded their right of private defence, therefore, it was a case of culpable homicide not amounting to murder and consequently acquitted the accused-appellants from the charge under Section 302/34, IPC, as well as 4/25 of the Arms Act, but convicted and sentenced the accused- appellants under Section 304/34, IPC, as mentioned above. The learned counsel for the accused-appellants contended that the learned trial court itself has recorded a finding that accused-persons had a right of private defence of person and further that the said right of private defence of the appellant was upheld by the Division Bench of this Court while dismissing D.B. Criminal Revision Petition No.453/2004, filed by the complainant Prakash Singh against the order of acquittal of the accused-persons from the charge under Section 302 read with Section 34, IPC, and under Section 4/25 of the Arms Act, vide order dated 8.4.2005; the only point for determination in the present appeal is whether the learned trial court was justified in convicting the accused-appellants by holding that they exceeded their right of private defence and further whether accused-appellants could // 5 // have been convicted under Section 304 with the aid of Section 34, IPC, in the facts and circumstances of the present case. He contended that according to Section 100 of the IPC, the appellant had a right of private defence even upto death of Bhopal Singh and present case cannot be said to be a case of exceeding the right of private defence. He specifically referred clause (3) of Section 100 and contended that even an assault with the intention of committing rape is sufficient to the voluntary causing of death of the assailant in the right of private defence of body. He further contended that in any circumstance the appellants could not have been convicted with the aid of Section 34, IPC, particularly when they were given the benefit of right of private defence of person and on the pretext that they exceeded their right of private defence. He, therefore, contended that the impugned judgment of the learned trial court is liable to be set-aside and the accused-appellants are liable to be acquitted. The learned counsel for the complainant as well as the learned Public Prosecutor defended the impugned judgment passed by the trial court and contended that looking to number and nature of injuries sustained by deceased Bhopal Singh it is clear that accused-persons exceeded their right of private defence. They contended that although the // 6 // learned trial court has recorded a finding about private defence in favour of accused-persons, but the right of private defence under Section 100, IPC, is subject to the restrictions mentioned in Section 99 of the IPC. It is contended that even as per the case of accused-party, the deceased was not armed with any weapon, but he was in drunken condition and even if he committed criminal trespass then the necessary injuries could have been inflicted on his person so as to take him in custody and to handover him to police for necessary action against him according to law. But, the postmortem -report shows the multiple injuries, including stabbed wounds and fracture, were sustained by the deceased and accused-persons were three, in number; and accused Savita herself did not use the force to cause voluntarily death of the assailant, therefore, there was no occasion for the other accused-persons to cause voluntarily death of the assailant, but they could have, at the most, inflicted such injuries so as to caught hold him and handover him to the police. It is further contended that right of private defence was available subject to restrictions, as contained in Section 99, therefore, the learned trial court has not committed any error in convicting the accused-appellants in the facts and circumstances of the present case. Therefore, they contended that there // 7 // is no merit in this appeal and the same is liable to be dismissed by this Court. I have considered the submissions of learned counsel for the parties and minutely scanned the impugned judgment as well as the record of the trial court. Before considering the submissions of learned counsel for the parties as well as the evidence of the case, it would be appropriate to discuss the relevant provisions of law as well as the case laws on the point. Sections 96 to 106, IPC, deal with the right of private defence. Sections 97, 99 and 100, IPC, are reproduced as under:- “97. Right of private defence of the body and of property.- Every person has a right, subject to the restrictions contained in section 99, to defend- First.- His own body, and the body of any other person, against any offence affecting the human body; Secondly.- The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.” “99. Acts against which there is no right of private defence.- There is no right of private defence against an act which does not // 8 // 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 that act, may not be strictly justifiable by law. 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. 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.- 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.” “100. When the right of private defence of the body extends to causing death.- 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 hereafter enumerated, 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; Thirdly.- An assault with the intention of committing rape; Fourthly.- An assault with the intention of // 9 // gratifying unnatural lust; Fifthly.- An assault with the intention of kidnapping or abducting; Sixthly.- An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.” Exception 2 of Section 300, IPC, is also reproduced as under:- “Exception 2.- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.” Section 105 of the Evidence Act is also necessary to be considered for adjudication of the present matter, which reads as under:- “105. Burden of proving that case of accused comes within exceptions.- When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.” The above quoted provisions of law make it clear that every person has a right to defend his own // 10 // body, and the body of any other person, against any offence affecting the human body, under Section 97 of the IPC, but that right is subject to the restrictions contained in Section 99. According to Section 100 the right of private defence of body extends 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, as enumerated in six categories as reproduced above, but they are subjected to the restrictions mentioned in the last preceding section i.e. Section 99. According to Section 99, 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 that act, may not be strictly justifiable by law. It further provides 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. The right of private defence in no case extends to the inflicting of more harm then it is necessary to inflict for the purpose of defence. In State of Orissa v. Nirupama Panda – (1989 Cri.L.J. 621), the Division Bench of Orissa High Court dismissed the appeal of the State of Orissa and upheld // 11 // the order of acquittal passed by the trial court giving the benefit of right of private defence. The accused had stabbed deceased person as he outraged her modesty. Para 8,9 and 10 of the judgment are reproduced as under:- “8. Along with the evidence of dying declaration it is necessary to consider the statements made by the respondent before P.W.10. For this purpose, it is necessary to make a further reference to his evidence where he stated that after hearing from the deceased about the cause of the chest wound, the witness found the respondent standing on the verandah of Bansidhar Das and enquired from her. The respondent told him that she stabbed the deceased, because he outraged her modesty (Atyachar). The above statement of the respondent was inculpatory in part and exculpatory in the other part. But considered as a whole, it did not tantamount to an extra-judicial confession for the reason that she had justified her action of stabbing the deceased in exercise of her right of private defence. Even if the statement is received as a piece of extra-judicial confession because of its inculpatory part, yet on the basis thereof and on consideration of the exculpatory part, it cannot be used as an incriminating piece of evidence against her, because she had every right to save her honour even by causing the death of the person who either committed rape on her or attempted to commit the same. The above being the position, the statement made by the respondent on the query of P.W.10 instead of supporting the prosecution actually worked as a defence which was quite acceptable. 9. Now coming to the judicial confession (Ext.15), the respondent stated that she was having her siesta in a room of the house of Bansidhar Das. The deceased came there and attempted to commit rape on her. As she shouted, the // 12 // deceased put cloth inside her mouth and by application of force committed rape on her. At that time in order to save her honour, she stabbed the deceased by means of a knife. After assault, the deceased was injured and so he left her and ran away. The confessional statement has to be accepted as a whole. Once it is done, it supports the defence version and not the prosecution case. The learned Standing Counsel drew our attention to the slightly different statements made by the respondent before P.W.10, the confessional statement (Ext.15), and in her examination under S.313, Cr.P.C. In the last statement (under S.313, Cr.P.C.) the respondent told a slightly different story of the deceased attempting to throttle her, when in order to save her from his clutches and in exercise of her right of private defence, she picked up a knife and gave a stab on the chest of her assailant. Despite the fact that she made a slightly different statement at the last leg of the trial, yet the substratum of the defence case remains unaltered, which is, the deceased attacked her chastity and in order to save her honour she had to use the knife in exercise of her right of private defence. We did not, therefore, find any discrepancy worth the name in the defence version. 10. The evidence of P.W.4 discloses that the respondent was married, but after her widowhood she led an immoral life by living as a mistress of Bansidhar Das. Even though for the sake of argument it is accepted that she was the mistress of Bansidhar Das, yet she was within her rights to save her honour from a rapist. Even a whore is entitled under law to protect herself from attacks of an intending rapist. Therefore, immoral character of the respondent, even if it is true, is of little consequence.” In Prakash Chandra and Others v. The State of Rajasthan – (1991 Cri.L.J. 2566), the Division Bench of this Court held as under:- // 13 // “17. Despite the fact that we have arrived at the finding that the prosecution witnesses are not reliable and the prosecution has not travelled the entire distance between 'may be true' and 'must be true' by unimpeachable reliable and cogent evidence, yet we have to look into the case from a different angle, particularly because the accused Prakash Chandra and Mst. Kamla alias Jamna have admitted that Girwar Singh has been killed by Prakash Chandra and the other members of the complainant party had also sustained injuries at the hands of the accused persons. Looking from this angle also we are unable to hold the accused appellants guilty as in our opinion they were entitled to exercise the right of private defence. Complainants going at that odd hour of the night to the residence of Prakash Chandra, dragging a young lady of 25 years with ulterior motives, and causing injuries on her person were sufficient circumstances for the accused to have taken law in their own hands. Section 100, IPC extends the right of private defence of the body to voluntary causing of death or any other harm to the assailant for the offence which occasions the exercise of right be of the following description:- “That the assailant was with the intention of committing rape and/or with intention of kidnapping or abducting.” Dragging out of Mst. Jamna alias Kamla from her house by force at 9.00 p.m. with an intention to seduce her to sexual intercourse would certainly be a circumstances which gave a right to the accused persons to inflict injuries on the person of the deceased, Dhan Singh and Shambhu Singh. It was clearly a case of atrocity on weaker sex of the society. She was assaulted by the // 14 // deceased and the complainant party who had an evil eye on her, since they had been passing unwarranted remarks on her virtually outraging her modesty, and in these circumstances accused knowing the background were justified in coming to the rescue of the young lady and in that process to take up the arms. Considering the totality of the circumstances from any angle we are of the opinion that this is a fit case where the accused must be extended the benefit of doubt may be because we are unable to rely the prosecution story or because of the fact that they all were entitled to the benefit of exercising of right of private defence of the person of Mst. Kamla alias Jamna.” In Badan Nath v. State of Rajasthan – (1999 Cri.L.J. 2268), the Division Bench of this Court, in the facts and circumstances of that case, extended the benefit of Section 100 of the IPC in favour of the accused therein. In Mohd. Ramzani v. State of Delhi – (AIR 1980 SC 1341), their Lordships of the Hon'ble Supreme Court held as under:- “19. It is trite that the onus which rests on an accused person under Section 105, Evidence Act, to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence with which the accused is charged beyond reasonable doubt. It is further well established that a person faced with imminent peril of life and limb of himself or another, is not expected to weigh in 'golden scales' the precise force needed to // 15 // repel the danger. Even if he at the heat of the moment carries his defence a little further then what would be necessary when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it. Viewed in the light of these principles, the defence, in the instant case had succeeded in establishing with a balance of probability, that the deceased and Abdul Rashid armed with a Saria and knife respectively, first assaulted Mohd. Shafi and thereupon the appellant assaulted the deceased to save his father and himself from further injuries. Even if it be assumed for the sake of argument that the material on record fell short of discharging the nature of onus on the appellant under Section 105, Evidence Act, on account of the non-production of the Doctor who examined Mohd. Shafi and the appellant, and prepared the medico-legal reports Ex.PW.15/A and Ex.PW.15/DY, then also the benefit of that deficiency and the doubt arising therefrom, could not be given to the prosecution. The prosecution case as propounded by its star witness Abdul Rashid was that both the father (Mohd. Shafi) and the son (appellant) actually participated in the assault on the deceased. To support that story, the prosecution went to the length of 'planting' the deceased's blood on the clothes of Mohd. Shafi. When this substratum of the story viz. Mohd. Shafi holding the deceased at the time of the fatal assault, was found to be false and no satisfactory explanation was coming forth from the prosecution about the injuries of Mohd. Shafi and the appellant, the only prudent course in the ultimate analysis, for the Court was to hold that the prosecution had failed to discharge its burden of bringing home the guilt to the appellant beyond reasonable doubt.” In Yogendra Moraji v. The State of Gujarat – // 16 // (AIR 1980 SC 660), the Hon'ble Supreme Court considered the provisions relating to right of private defence and laid down certain general principles embodied in the Penal Code governing the exercise of right of private defence. Para 13 of the judgment reads as under:- “13. The Code excepts from the operation of its penal clauses large classes of acts done in good faith for the purpose of repelling unlawful aggression but this right has been regulated and circumscribed by several principles and limitations. The most salient of them concerned the defence of body are as under: Firstly, there is no right of private defence against an act which is not in itself an offence under the Code; Secondly, the right commences as soon as – and not before – a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is conterminous with the duration of such apprehension (Section 102). That is to say, right avails only against a danger imminent, present and real;