IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.25 of 2006 Decided on : August 26, 2009 Raj Kumar @ Raju …Appellant. Versus State of H.P. …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellant : Mr. Anup Chitkara & Ms Nidhi Chawla, Advocates. For the Respondent : Mr. Ramesh Thakur, Assistant Advocate General. Surjit Singh, J (Oral) Appellant Raj Kumar is aggrieved by the judgment, dated 29th November, 2005, of the Sessions Court, whereby he has been convicted of offence, under Section 302 of the Indian Penal Code, and sentenced to undergo imprisonment for life and to pay a fine of Rs.20,000/-, in default of payment of fine to undergo simple imprisonment for a further period of three months. So, he has preferred this appeal. 2. Case of the prosecution may be summed up thus. On the night intervening 15th & 16th October, 2003, around 2.20 p.m., a telephonic call was received at Police Whether reporters of the local papers may be allowed to see the judgment? …2… Station, Talai, District Bilaspur. The caller did not disclose his particulars, but informed that Raj Kumar son of Budhi Singh, resident of Kalol, had been stabbed, with a knife, in the bazaar of village Kalol and he was lying unconscious and the police should reach and take appropriate action. The call was attended by PW-16 ASI Ram Nath. Entry was made in the Rojnamcha, copy of which is Ex. PW-15/A. Upon that a police party, headed by a Head Constable, was deputed to the spot. Next day, PW-16 ASI Ram Nath also went to the spot. PW-1 Santosh Kumar made a statement to him, which was recorded, under Section 154 of the Code of Criminal Procedure. The record of the said statement is Ex. PW-1/A. As per this statement, on the night intervening 15th & 16th October, 2003, around 11 p.m., when Santosh Kumar was present in his room, he heard some commotion and when he came out of the room, he saw Raj Kumar son of Budhi Singh holding his abdomen and crying. He was saying that he had been stabbed by the driver of Trolla (Mohindera Jeep) No.HP-23A-1633. PW-1 Santosh Kumar further reported that when he came out of his room, he saw three persons running towards village Bhatoli Kalan and PW-4 Rajesh Kumar chasing them. It was also stated by him that Surinder Kumar and Bashir Mohammad were already on the spot. The said statement was sent to the Police Station, for registration of the case and the case was …3… registered vide FIR Ex. PW-15/D, under Section 307, read with Section 34 of the Indian Penal Code. 3. Injured was taken to Zonal Hospital at Bilaspur, from where he was referred to IGMC/PGI. He was brought to IGMC, Shimla, where he breathed his last, in the evening on 16th October, 2003. Case was then converted into 302 of the Indian Penal Code. 4. On 17th October, 2003, PW-4 Rajesh Kumar informed the police that he and deceased Raj Kumar were together, on the night intervening 15th & 16th October, 2003, and that around 10.30 p.m., Raj Kumar, after closing his shop in village Kalol, went to the liquor vend to hand over the key of his shop to the salesman at the liquor vend and when they were at the said vend, a Mohindra Jeep, bearing registration No.HP-23A-1633 came there. He told that the Jeep was being driven by appellant Raj Kumar and three more persons were accompanying him in the said Jeep. He also told the police that music was being played by the appellant in the cabin of the said Jeep, at high volume, to which he objected and a quarrel ensued and that thereafter three companion occupants of the appellant ran towards village Bhatoli Kalan and he chased them, while the appellant ran in the opposite direction towards village Jejhwin and the deceased was chasing him. It was further stated by him that soon the deceased returned, holding his …4… abdomen and told that he had been stabbed by the appellant. 5. Police arrested the appellant and his three companions. During the course of investigation, appellant made a disclosure statement Ex. PW-9/C, pursuant to which, knife Ex. P-3 was discovered and taken into possession vide Memo Ex. PW-9/E. Sketch of the knife was prepared, which is Ex. PW-9/D. Knife was made into a parcel. Lateron it was sent to the Chemical Examiner, who, vide report Ex. PW-16/H, found stains of human blood on it. 6. Dead body of Raj Kumar was subjected to postmortem examination by PW-18 Dr. Piyush Kapila of Forensic Medicine Department at IGMC, Shimla. Following ante-mortem injuries were noticed by him: 1. 2CM x 0.5 cm transverse slit shaped (spindle shaped) stab injury penetrating was present over right side of chest 4cm below and lateral towards axilla from right nipple. The depth of the wound was upto lung area. The stab wound was continuing from chest wall where small contusion was present and also on the internal side of the chest wall as well. There was corresponding lung injury 2x0.5x0.5 cm on lower lobe of lung with around 20-50 ml of blood in right pleural cavity. The direction of the wound was obliquely backwards and medially. There was clotted blood present around the wound. …5… 2. Another incised injury was present over right iliac fossa 5 cm above the anterior superior iliac spine 1.5x0.5 cm muscle deep. The margins were sharp. Clotted blood was present around the wound. 3. 2 cm stitched wound with 3 stitches were present over dorsal aspect of forearm of left side, cm proximal to styloid process of radius. 4. Another 2.5 cm stitched wound was present with 3 stitches on medial aspect of left forearm, 4 cm proximal to styloid process of radius. 5. There was large retroperitoneal haemotoma and mesocolon haemotoma present on left side. Postmortem examination was conducted on 17th October, 2003, at 1.50 p.m. The doctor opined that time lag between the aforesaid injuries and the death was 18 to 24 hours and the time that elapsed between the death and postmortem was 12 to 18 hours. 7. When taken to the Zonal Hospital at Bilaspur, in an injured state, deceased Raj Kumar was provided medical aid and was subjected to the medical examination by PW-10 Dr. K.S. Patial. He was operated upon by one Dr. Kunzam Jaswal, a Surgeon, who was not examined during trial. PW- 10 Dr. K.S. Patial noticed the following injuries: 1. A 2cm lacerated wound on left forearm near the wrist. The wound is 0.5 cm in …6… width and perforated and the forearm and extends to the dorsal side of forearm (entry from flexor aspect and exist from extensor aspect) (everted edges). 2. A 2 cm long penetrating incised stab wound in left lower abdomen with intestinal loops herniating out. There was laceration of the intestinal loops at two places and were highly congested. The wound on the abdominal wall was slit shaped with acute angles and was gaping. The direction was horizontal anterior- posterior width was 1 cm as the intestinal loops had stretched the margins to almost circular shape. The edges were sharp and showed fresh bleeding. 8. PW-5 Surinder Kumar told the police, during investigation, that on the fateful night, around the time of occurrence, he heard some commotion and then looked out through the shutter of his shop and saw in the light of the electric lamp of liquor vend that appellant and PW-4 Rajesh Kumar were quarrelling. 9. Police challaned the appellant and his three companions, namely Surinder Kumar, Suresh Kumar and Santosh Kumar. Trial Court charged all of them with the offence of murder, under Section 302 of the Indian Penal Code, with the aid of Section 34 of the Indian Penal Code. They pleaded not guilty and were, therefore, put on trial. …7… 10. Prosecution examined a number of witnesses. It mainly relied upon the testimony of PW-1 Santosh Kumar, PW-4 Rajesh Kumar, PW-5 Surinder Kumar, PW-9 Ram Asra, PW-11 Chuni Lal and PW-16 ASI Ram Nath. 11. Appellant took the plea that when he reached, driving his Mohindra Jeep, near the liquor vend and parked the Jeep in front of that vend, music in driver’s cabin of the Jeep was on play at a loud pitch, to which PW-4 Rajesh Kumar and the deceased objected and then he was pulled out of driver’s cabin, by PW-4 Rajesh Kumar and soon deceased Raj Kumar appeared from the liquor vend and fearing that he may be assaulted, he ran towards village Jejhwin, but the deceased chased him. 12. Trial Court, believing the statement of PW-4 Rajesh Kumar, to the effect that the deceased was stabbed, on the spot, by the appellant, convicted him of the offence of murder, under Section 302 of the Indian Penal Code and sentenced him, as aforesaid. Three other persons, arrayed as accused alongwith the appellant, were, however, acquitted. 13. We have heard the learned counsel for the appellant as also the learned Assistant Advocate General and perused the record. 14. Appellant does not deny his presence on the spot nor does he deny that an altercation had taken place …8… between him and PW-4 Rajesh Kumar. It is also his own case that with a view to avoiding the quarrel turning into some serious incident, he fled from the scene towards village Jejhwin, but was chased by the deceased. Though he did not specifically admit, but also at the same time, he did not deny that soon after chasing him, the deceased returned to the Bazaar of village Kalol, where the quarrel had taken place and he was having injuries in his abdomen and other parts and was seen holding his abdomen. It is in the light of these admitted/not denied facts that the evidence is to be appreciated. 15. Learned Sessions Court appears to have fallen in error in believing the testimony of PW-4 Rajesh Kumar, in its entirety. The witness testified that quarrel started between the deceased and the appellant and that when he tried to intervene, appellant came out of his vehicle and stabbed the deceased in the abdomen and then ran away from the spot. However, to the police, vide statement Ex. DA, with which he was duly confronted, he gave out a different story. To the police vide portion ‘A’ to ‘A’, he stated that the appellant ran towards village Jejhwin and he was chased by deceased Raj Kumar, while the three accomplices of the appellant ran towards village Bhatoli Kalan and he himself (the witness) ran after them. …9… 16. It is not only the aforesaid previous statement Ex. DA of the witness, which renders his testimony in the Court doubtful, but also his conduct in not reporting the matter to the police, which makes his evidence incredible. The witness claims to be a friend of the deceased. According to him, deceased was stabbed, when he was on the spot. He also says that he accompanied the deceased to the Zonal Hospital at Bilaspur and from Bilaspur to IGMC, Shimla, but he did not inform the concerned Police Station nor the Police of Bilaspur or Shimla. It was a third person, namely PW-1 Santosh Kumar, who had not even witnessed the occurrence, who lodged the report with the police, on the next following day, about 14 hours after the occurrence, vide statement Ex. PW-1/A. No explanation has been put forward by the prosecution for PW-4 Rajesh’s unusual conduct, in not informing the police and taking two days even to make statement, under Section 161 of the Code of Criminal Procedure. 17. It has come in evidence that when deceased was in Zonal Hospital at Bilaspur, a Police Officer, namely ASI V.S. Guleria, visited the Hospital and made an application Ex. PW-10/C to the concerned doctor to ascertain whether the deceased, who was then alive, was fit to make statement. PW-4 Rajesh Kumar could have very easily …10… narrated the incident to said ASI V.S. Guleria, but he did not do so. 18. Investigating Officer of the case, namely PW-16 Ram Nath, admitted that witnesses had made statement to him, during the course of investigation that initially quarrel had taken place, in front of the liquor vend and that thereafter the appellant ran towards village Jejhwin and he was chased by the deceased and that soon thereafter deceased returned holding his abdomen and stated that he had been stabbed by the appellant (Raj Kumar). To the similar effect is the statement of another Investigating Officer of the case, namely PW-17 Rai Singh, SI/SHO, who recorded statement Ex. DA of PW-4 Rajesh Kumar. 19. PW-6 Mohinder Singh stated that when on being informed about the incident at his Dhaba, situated at a distance of about 20 yards from the place of occurrence, by PW-1 Santosh Kumar, he went to the spot, he saw deceased Raj Kumar crying in pain and saying that he had been stabbed by the Trolla owner. No doubt, the witness did not state this fact to the Police, in his statement, under Section 161 of the Code of Criminal Procedure, Ex. DB, with which he was confronted, but that by itself does not mean that what he stated in the Court is not true. The reason is that it has come in evidence that the deceased was not unconscious even when taken to the Hospital at Bilaspur, …11… meaning thereby that he was in a position to speak. Also, his statement appears to be believable, in the light of the admissions made by the appellant, as referred to hereinabove. 20. From the above discussed evidence and the admissions of the appellant, following facts stand proved, beyond any pale of doubt: 1. Appellant happened to engage in a quarrel with PW-4 Rajesh Kumar, on the night intervening 15th & 16th October, 2003, in front of the liquor vend. 2. On seeing the appellant and PW-4 Rajesh Kumar quarrelling, the deceased appeared from the liquor vend and on seeing him the appellant ran towards village Jejhwin and he was chased by the deceased. 3. Three accomplices of the appellant ran towards village Bhatoli Kala and they were chased by PW-4 Rajesh Kumar. 4. Deceased returned to the place where the quarrel had initially taken place soon after he went towards Jejhwin, chasing the appellant, holding his abdomen and crying and saying that he had been stabbed by Trollawala, who, admittedly, was the appellant whom the deceased had chased. 21. Proof of the aforesaid facts unflinchingly establishes that it is the appellant who caused the injuries …12… to the deceased. Doctor, who conducted medical examination at Zonal Hospital, Bilaspur, namely PW-10 Dr. K.S. Patial, testified that the injuries could have been caused by knife Ex. P-3. The knife was recovered from near the Bazaar of Kalol on the upper side of the road, leading to village Jejhwani and on the road, just below the point from where the knife was recovered, blood was spotted and, therefore, it can legitimately be concluded that the injuries were caused by means of knife Ex. P-3. The knife, as per report Ex. PW-16/H of the Chemical Examiner, had stains of human blood, which fact further strengthens our view that injuries were caused to the deceased by means of this weapon. 22. The question is whether the proof of the aforesaid facts is sufficient to hold the appellant guilty of murder, as has been concluded by the Sessions Court or he has committed some lesser offence, if so what offence. 23. The fact that the appellant withdrew and ran away from the spot suggests that he did not want the incident of initial quarrel to turn into a nasty incident. He was, however, hotly chased. The chase is supposed to have created apprehension in his mind that he would be physically harmed. Therefore, he had the right to defend himself, under clause first of Section 97 of the Indian Penal Code, which reads as follows: …13… “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- xxx xxx xxx xxx” Restrictions contained in Section 99 of the Indian Penal Code, spoken of in Section 97 of the Indian Penal Code, have no application to the fact situation of the present case and, therefore, the same need not be noticed. 24. Section 100 of the Indian Penal Code speaks of the situations and circumstances in which the right of private defence extends to the causing of death. The provision is reproduced below: “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 hereinafter 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; …14… Fourthly-An assault with the intention of 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.” 25. It is quite likely, in the facts and the circumstances of the case, that the appellant had reasonable apprehension that the deceased, who was chasing him, might cause grievous hurt to him. So, the case can be said to be covered by situation ‘secondly’ appearing in Section 100 of the Indian Penal Code. However, the fact that there were a number of injuries on the person of the deceased, including one on the chest, which punctured the lung and also on the forearms, suggesting that the deceased tried to ward off certain blows aimed at vital parts of the body, we are of the considered view that the appellant exceeded the right of private defence of his body. Therefore, he cannot seek acquittal on the ground that he happened to kill the deceased, in exercise of his right of private defence. His case is covered by Exception-2 to Section 300 of the Indian Penal Cod, which reads as follows: …15… “300 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. Illustration Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide.” Consequently, we hold the appellant guilty of offence, under Section 304 of the Indian Penal Code and set aside his conviction, under Section 302 of the Indian Penal Code, as recorded by the trial Court. 26. Next question is whether the act of the appellant is covered by part ‘first’ or part ‘second’ of Section 304 of the Indian Penal Code. There were five injuries, caused by means of knife, on the person of the deceased. One was on the chest, which punctured the lung, the other was in the abdomen, which was very deep and the others were on the forearms, presumably received when the deceased was trying to ward off blows aimed at vital parts. The number of the injuries and the sites of the injuries are indicative that the intention of the appellant was to kill the deceased. …16… Therefore, his act, in our considered view, is covered by first part of Section 304 of the Indian Penal Code. As a sequel to the above discussion, we partly allow the appeal, set aside the conviction of the appellant, under Section 302 of the Indian Penal Code, and the sentence for the said offence, as awarded by the trial Court and instead convict him of the offence, under Section 304 (first part) of the Indian Penal Code and sentence him to undergo rigorous imprisonment for seven years and to pay a fine of Rs.1,000/-, in default of payment of fine to undergo simple imprisonment for a further period of three months. Appeal stands disposed of accordingly. ( Surjit Singh ), J August 26, 2009(sd) ( Surinder Singh ), J