^•^•.\ ^ ^-^^"^3^^ & i ^&^i' @ A-P^. ^^ ^ ^ HIGH COURTOF CHHATTISGARH, BILASPUR Division Bench: Hon^ble Shri Sunil Kumar Sinha &. Hon^ble Shri Radhe Shvam Sharma, J J Criminal Aopeal No. 26 of 1994 Mohammad Iqbal Vs. The State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT For consideration Sd/- Sunil Kumar Sinha Judge HON»BLESHRI JUSTICE RADHE SHYAM SHARMA ^ a^<jn-^<-- Sd/- R.S. Sharma Judge Post for Judgment \/% /07/201J_ Sd/- Sunil Kumar Sinha Judge ^.F^_ '^ HIGH COURT OF CHHATTISGARH, BILASPUR Division Bench: Hon>bl^Shn Sunil Kumar Sinha & Hon*ble Shri Radhe Shvam Sharina, J J APPELLANT RESPONDENT Criminal Aooeal No. 26 of 1994 Mohammad Iqbal son of Sheikh Ramjan Khan, aged 30 years, Resident of Village: Bazar Para, Patiia, Police Station Patna, District: Surguja, M.P. (Now District Korea, C.G.) Versus The State of Madhya Pradesh (Now State of Chhattisgarh) Through Police Station - Patna, District Surguja (Now District Korea) (Criminal Appeal under Section 374 (21 of The Code of CriminaLPrQcedyre, 1973) Appearance: Mr. Surendra Singh, Sr. Advocate with Mr. N.K. Mehta & Mr. Manoj Mishra, Advocates, for the appellant. Mr. Ravindra Agrawal, Panel Lawyer for the State. Mr. Vaibhav Goverdhan, Advocate for the Complainant. JUDGMENT {/$ .07.2011) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) This appeal is directed against the judgment dated 4th of Januaiy, 1994 passed in Sessions Trial No. 189/88 by the Additional Session Judge, Baikunthpur. By the impugned judgment, the appellant has been convicted u/ss 302 & 324 IPC and sentenced to undergo imprisonment for life and R.I. for 3 years with a further direction to run the sentences concurrently, Criminal Appeal No. 26 of 1994 (2) The facts, briefly stated, are as under:- Deceased- Khemchand was tenant ofthe appellant. He was residing in his tenanted premises along with his family members namely Rohni Prasad (PW-1), Moolchandra (PW-5) and Bhupendra Kumar Agrawal (PW-2) since 10 years. The deceased was running a grocery-shop in the front portion of the premises and the back portion was used for residential purpose. Rohni Prasad (PW-1) and Moolchandra (PW-5) are real brothers of the deceased. Bhupendra Kumar Agrawal (PW-2) is the son of the deceased. There was dispute relating to vacating the premises between the appellant and the deceased. The case ofthe prosecution is that on 27.12.87 at about 10.00 a.m., the appellant along with Sampatlal Sharma (PW-12), Himkalyan (PW-6) and Takeshwar Sharma (PW-13) went to the back portion of the preniises where he met deceased- Khemchand. He asked the deceased as to why they have thrown out the Tijori (iron safe) from the shop? The deceased replied that it was only kept there (in back portion of the house) since long. On this account, hot exchanges begun between the appellant and the deceased and both went inside the shop. The allegations are that the appellant took out a knife from his waist and gave a knife blow to the deceased and he also gave a knife blow to Rohni Prasad (PW-1). The appellant chased Rohni Prasad, but he was caught by Sampatlal Sharma (PW-12). Deceased- Khemchand took a bicycle for going to the police station, but he fell down on the way and became unconscious*. Rohni Prasad (PW-1), Moolchandra (PW-5) and Sampatlal Sharma (PW-12) took the deceased to the Clinic of Dr. P.C. Kundu (PW-16), who gave him First-Aid and thereafter he was shifted to Baikunthpur, Hospital. Rohni Prasad (PW-1) reported the matter to police station, Patna, on which, the First Information Report (F.I.R. - Ex.-P/l) was registered u/s 307 IPC. Criminal Appeal No. 26 of 1994 @ ^ •<.- The deceased, while alive, was examined by Dr. V.K. Gupta (PW-15) who found an incised wound of 4 cm just below the right chest. It was stitched but the blood was oozing out. He also noticed one small abrasion of 1 cm x 1 cm on the right palm. The MLR is Ex.-P/16. Rohni Prasad (PW-1) was also examined on the same day. There was an abrasion of 1 cm x 1 cm on the right portion of his testicles. Clotted blood was present over it. This was simple injury reported to be caused by sharp edged weapon. His MLR is Ex.-P/17. The deceased died on the same day during the course of his treatment in the hospital. His post-mortem examination was also conducted by Dr. V.K. Gupta (PW-15). On internal examination, he found that the above injury on the abdomen was deep to the right kidney causing a cut injury over it. He opined that the cause of death was shock as a result of above injury and it was homicidal in nature. The post- mortem report is Ex.-P/lS. Appellant- Mohammad Iqbal was also examined by Dr. V.K. Gupta (PW-15) on 27.12.87. He noticed a cut injury of 3 cm x 1 cm x 1 cm on the back portion of his right thigh and opined that this was a simple injury caused by sharp edged weapon. The MLR of the appellant is Ex.-D/S. The appellant pleaded right of private defence in his statement u/s 313 Cr.P.C. He pleaded that when he saw that tijori (iron safe) was thrown out of the preniises, he called the neighbours namely Sampatlal Sharma (PW-12), Takeshwar Sharma (PW-13) and Himkalyan (PW-6),who came to the back portion of the disputed premises. The deceased and Rohni Prasad (PW-1) also came there. There was an altercation between them, thereafter they went to that rooni where according to the appellant, the tijori (iron safe) was kept. It is at this time Rohni Prasad (PW-1) attacked over him by a knife. He caught the knife, but the deceased attacked over his thigh. When the deceased wanted to give second blow, he attacked ^i^ '^-. -'K.? Criminal Appeal No. 26 of 1994 ^ over the deceased by knife which he had snatched from Rohni Prasad. The appellant stated in clear words that he had inflicted single injury over the deceased in exercising of right of private defence. The learned Session Judge rejected the plea of right of private defence and believed the testinionies of Rohni Prasad (PW-1) and Moolchandra (PW-5) and held that the appellant caused the above injury to the deceased with an intention to commit his murder, therefore, he was liable for punishment u/s 302 IPC. (3) Mr. Surendra Singh, learned Sr. Advocate appearing on behalf of the appellant, argued that the appellant inUicted single injury to the deceased in right of private defence, therefore, he was entitled to get acquitted. He referred to the decisions of Deo Narain -Vs- Stateof U.P., AIR 1973 SC 473 and Raahbir Sinah & Ors. -Vs- State ofHarvana, AIR 2009 SC 1223. ^ (4) In Raghbir Singh (supra), the Suprenie Court observed that whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self- defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be '^•^' ,,^' ^ff^y Criminal Appeal No. 26 of 1994 considered froni the material on record. The burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. The Supreme Court relied on the judgments of Munshi Ravn and Ors. -Vs' Delhi Administration, AIR 1968 SC 702; State of Gufarat -Vs- Bai Fatima, AIR 1975 SC 1478: State of U.P. -Vs- Mohd. Musheer Khan. AIR 1977 SC 2226 & Mohinder Pal Jollv -Vs- State of Pun/ab. AJR 1979 SC 577. The Supreme Court further held that the number of injuries is not always a safe criterion for determining who the aggressor was. It was also held that non- explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far out-weighs the Criminal Appeal No. 26 of 1994 v.^' effect of the oinission on the part of the prosecution to explain the injuries. Reliance was placed on Lakshmi Sinah -7s- State of Bihar, AIR 1976 SC 2263. (5) In Deo Narain (supra), it was held that for exercising the right of private defence it is not necessary that the party exercising it raust have actually received some injury at the hands of the aggressor. It is a preventive and not punitive right. (6) In case on hand, though the appellant took the plea of self defence, but neither any witness was examined in defence nor the appellant himself appeared as a defence witness to establish the plea of self defence. Now we shall examine as to whether the above plea, expressly taken by the appellant, was self established by the material available on record and the appellant has discharged his burden by showing preponderance of probabilities in favour of the plea on the basis of material on record. Rohni Prasad (PW-1) deposed in clear words that the appellant firstly assaulted the deceased by a knife and thereafter he ran-to assault him and in this process, he received injury on his testicles from the point of the knife. In cross-examination, he clearly denied the suggestion that he wanted to assault the appellant by knife which was snatched by the appellant and in the meanwhile his brother (deceased) assaulted the appellant by knife which hit the appellant on his thigh. He very specifically denied that thereafter when his brother wanted to give a second blow, the appellant gave one knife blow to his brother.Mr. Singh has argued that Rohni ;"^ v v^? .' ^^A^^ Criminal Appeal No. 26 of 1994 Prasad (PW-1) deposed that after penetrating the knife into the abdomen of the deceased the appellant had rounded the knife, whereas, this portion is omission in the F.I.R. (Ex.-P/l) as also in 161 Cr.P.C. statement of Rohni Prasad (Ex.-D/l), therefore, his entire evidence should be discarded as he has tried to improve the story. We are unable to accept the above contention. We are of the view that this discrepancy alone was not sufficient to discard the entire evidence of Rohni Prasad (PW-1). After going through his entire evidence, we do not find any such discrepancy in it so as to throw it out and take him as wholly unreliable witness. We flnd that version of Rohni Prasad (PW-1) is duly corroborated by the evidence of Moolchandra (PW-5). Moolchandra (PW-5) deposed that after some altercation, the appellant took out a knife and assaulted the deceased by knife on his abdomen. Thereafter the appellant ran towards Rohni Prasad (PW-1), but he was caught by Sampatlal Sharma (PW-12) and in this process Rohni Prasad (PW- 1) received injury. These witnesses have been cross-examined by the defence, but the defence has not been able to elicit any such circumstance on which the story set-forth by the prosecution may be discarded. That is to say that the plea of self defence was not established by the appellant even by the cross-examined of these witnesses. Mr. Singh has argued that the injuries sustained by the appellant was not at all explained by these witnesses, therefore, on the one hand, the witnesses are unreliable and on the other hand, the story put-forth by the appellant becomes plausible. Sub-Inspector, Birendra Sharma (PW-17) deposed that when he •^.•;f^'" Criminal Appeal No. 26 of 1994 was going towards the place of occurrence after knowing all this, on the way he met with the appellant and he took the appellant to the police station on account of his safety. Rohni Prasad (PW-1) has stated that when he saw the appellant in the police station, heo^ai? wearing full-pant, in fact, a safari-suit. The injury sustained by the appellant was a simple injury on the back portion of his thigh, therefore, it was a superficial injury and the same may not have been noticed by the witnesses as the appellant was admittedly wearing a full-pant and thus only on account of non-explanation of the singl®injury of the appellant, in the above circumstances, would not affect the case of the prosecution. (7) Section 100 IPC provides that the right of private defence of the body extends, under the restrictions mentioned in Section 99, 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 enumerated in this Section. The above provisions make it clear that the right to voluntary causing of death or any other harm is available against the assailant and not against any other person. In case on hand, according to the appellant, the deceased was the assailant of the appellant who firstly inflicted a knife blow on the appellant causing injury to his thigh, and when he wanted to inflict the second blow, the appellant assaulted him exercising his right of private defence. This plea of the appellant is falsified on the basis of contents of Ex.-D/3-A. Ex.-D/3-A is the requisition issued by the police Criminal Appeal No. 26 of 1994 7. officer to the Doctor of the concerned Primary Health Centre for medical examination of the appellant. In this document, it has been mentioned that the appellant was assaulted by Rohni Prasad (PW-1) by a knife on his right thigh, therefore, he may be examined. The information which is mentioned in the requisition for medical examination is normally based on the facts told by the victim (if he is in a position to tell) to the police officer making requisition form. If, in fact, the appellant was assaulted by the deceased by knife, as he has pleaded in his 313 Cr.P.C. statement, the above version would not have been mentioned in the requisition memo (Ex.-D/3-A). This has two impact, first, that the appellant was not assaulted by the deceased and he was assaulted by Rohni Prasad (PW-1) and the plea of right of private defence was false; and second, that if at all any such right was available to the appellant it was available against Rohni Prasad (PW-1) who in fact assaulted him and not against the deceased. In the above facts and circumstances of the case, we are unable to accept the argument of Mr. Singh that the appellant assaulted the deceased in exercise of right of private defence. We are of the view that the Session Judge was fully justified in rejecting the plea of right of private defence taken by the appellant. (8) Mr. Surendra Singh has also argued that in the facts and circumstances of the case, an offence u/s 302 IPC would not be made out and the appellant would be liable for punishment under 10 Criminal Appeal No. 26 of 1994 ^: some lesser Section preferably Part-II of Section 304 IPC. He referred to various decisions in this regard. (9) In Hari Ram -Vs- State of Harvana. AIR 1983 SC 185, the Supreme Court observed that in the heat of the altercation between deceased on the one hand and the appellant and his conirades on the other, the appellant seized a jelli and thrust it CA71^ into the chest of deceased. This/preceded by some serious remark. Only one blow was struck by the appellant at deceased. In the above facts and circumstances, it was held that it was a case of 304 Part-II IPC and a punishment of 5 years R.I. already undergone, was held to be proper. (10) In Jaeitar Sinah -Vs- State of Punfab. AIR 1983 SC 463, a knife was used and in sudden quarrel on spur of moment, a knife blow was given on the chest and the blow on the chest pierced deep inside the chest cavity resulting in the injury to the heart and this injury was sufficient in the ordinary course of nature to cause death. The Supreme Court, in the above facts and circumstances, held that it was a case u/s 304 Part-II IPC and a sentence of imprisonment for 5 years will meet the ends ofjustice. (11) In Shitla Prasad alias Baba -Vs- State of U.P.. AIR 1994 SC 1643, the appellant who was armed with a spear, gave a spear blow to the deceased in his abdomen. The Doctor, who conducted the post mortem, found one penetrating wound in the stomach above the umbilicus and he also found that omentum was coming ..-.^'I' "\^ ;' 11 Criminal Appeal No. 26 of 1994 ^ h^^ out of the wound. The other injury was only an operational which continued with the left angle of injury No.l. He also found a wound 2 cm x Vo. cm under injury No^l in the mesentery cutting a branch of the mesentery artery. There was a quarrel regarding diverting water to the field and in the said quarrel accused mHicted injuries to the deceased. It was held that intention to cause a particular injury which the doctor opined to be fatal was not established and thus the offence would fall under Part-II of the Section 304 IPC. Custodial sentence of 7 years already undergone was held to be proper. (12) Section 304 IPC provides the punishnient for culpable homicide not aniounting to murder. It draws a distinction between the penalty to be inflicted in cases, where, an intention to kill being present, the act would have amounted to murder, but for its having fallen within one of the Exceptions in Section 300, and cases in which the crime is culpable homicide not amounting to murder, that means, where there is knowledge that death will be a likely result, but the intention to cause death, or bodily injury likely to cause death, is absent. The flrst part of Section 304 applies where there is intention, whereas the second part applies where there is knowledge but the important thing is that before holding the accused guilty under any part of Section 304, it has to be observed that a death must have been caused by him under any of the circumstances mentioned in the five Exceptions to Section 300, which include death caused while deprived of power '\.:.s:; '^^KW^^-' 12 Criminal Appeal No. 26 of 1994 .(o° of self-control under' grave and sudden provocation, while exercising in good faith the right of private defence of person or property, and in a sudden fight in the heat of passion without premeditation. Knowledge of consequences which may result in doing an act is quite different than the intention which denotes that a particular consequence should ensure. For attracting the former part of Section 304, an element of intention is a factor whereas for attracting the later part, an element of knowledge is a factor. The intention is the purposeful doing of a thing to achieve a particular result, whereas, the knowledge is an awareness which attributes to be well informed that a particular result may happen by doing a thing. (13) In the present case the deceased was the tenant of the appellant. He was residing in the tenanted premises since last 10 years. A dispute was going on for vacating the premises and it was agreed between them that the premises shall be vacated on the first January of the coming year. On the date of incident, the appellant had gone to the back portion of the premises for the reason that tijori was allegedly displaced by the deceased and his family merabers to the said portion from where it was initially kept. We note that the appellant had not gone all alone, but he had gone with 3 Panchas (the 3 prosecution witnesses). The case of the prosecution is that firstly some altercation took place between the appellant and the deceased in the back portion of the premises and thereafter they entered inside the room where the 13 Criminal Appeal No. 26 of 1994. 0 \'-: ?h^.r incident took place. In the above facts and circumstances, it appears that there was no preparation and premeditation on the part of the appellant and there was no intention of the appellant to commit murder of the deceased. Had there been a preparation or intention, the appellant would not have taken the Panchaswith him so as to make them eye witnesses of the murder intended to be committed by the appellant. After considering the entire facts and circumstances of the case, it appears that after the altercation, in heat of passion, without preparation or premeditation, the appellant inflicted single injury to the abdomen of the deceased which hit on the kidney and proved fatal. (14) It is therefore clear that the injury caused to the deceased by the appellant was unintentional and it was not caused with an intention to commit murder of the deceased. Even the injury received on the kidney was not intended and it cannot be said that the appellant was having an intention to commit murder of the deceased or to cause that particular injury to the kidney of the deceased. We are of the view that in the above situation, an offence u/s 302 IPC would not be made oyt and the appellant would b.e liable for punishment under Part-II of Section 304 IPC. (15) So far as punishment u/s 324 IPC is concerned, it does not appear that the appellant had inflicted knife injury to Rohni Prasad (PW-1). It comes in the evidence of Rohni Prasad that when the appellant chased to assault him, he received injury on his testicles by point of knife. Moolchandra (PW-5) also deposed that t ^ 14 Crim'inal Appeal No. 26 of 1994 ^ when the appellant tried to chase Rohni Prasad (PW-1), he was caught by Sampatlal Sharma (PW-12) and in that process, Rohni Prasad received the simple injury. On appreciation, we find that it was not proved that the appellant, in fact, inflicted injury to Rohni Prasad. Therefore, the conviction of the appellant u/s 324 IPC cannot be sustained .t^ (16) For the foregoing reason, we partly allow this appeal and set~ aside the conviction and sentences awarded to the appellant u/ss 302 & 324 IPC. Instead thereof, we convict the appellant u/s 304 Part-II IPC and sentence him to undergo R.I. for 7 years. The appellant shall be entitled to set-off the period already undergone by him. Sd/- SunilKumarSinha Judge Sd/- R.S. Sharma Judge vatti