A HIGH COURT OF CHHATTISGARH BILASPUR CORAM: Hon’ble Shri Rajeev Gupta, C.J. & Hon’ble Shri Sunil Kumar Sinha, J. Criminal Appeal No. 975 of 2001 Maniram Dewar Vs. State of Chhattisgarh JUDGMENT For consideration } Sd/- l SUNIL KUMAR SINHA 1 Judge HON’BLE SHRI JUSTICE RAJEEV GUPTA i d1 ( w ‘ W , , /} //J / Sd/— Chief Justice Post for Judgment :zf/06/2q99 W Sdl- SUNIL KUMAR SINHA Judg 4 I f MK . r r /!,,‘.‘ , HIGH COURT OF CHHATTISGARH BILASPUR 2 at («a W1 CORAM: Hon’ble Shri Ra‘eev Gu ta C.J. & Hon’ble Shri Sunil Kumar Sinha J. Criminal Apgeal No. 975 of 2001 APPELLANT Maniram Dewar S/o Gotamiya Dewar, aged about 55 years, resident of Achanakpur, P.S. Chakarbhata, Distt. Bilaspur (Chhattisgarh) Versus RESPONDENT State of Chhattisgarh Through : Station House Officer, P.S.— Chakarbhata, Distt. Bilaspur (Chhattisgarh) (Appeal under Section 374 (2) of The Code of Criminal Procedure) Appearance: Mr. Yogeshwar Sharma, Counsel fo‘r the appellant. Mr. Praveen Das, Dy. Govt. Advocate, for the State. JUDGMENT (4.06.2009) Following judgment of the Court was delivered by Sunil Kumar Sinha, J. (1) Challenge is made to the judgment dated 27th of August, 2001 passed by the Sixth Additional Sessions Judge, Bilaspur (CG) in Sessions Trial No. 215/2001, whereby, appellant Maniram Dewar has been convicted u/s 302 IPC and sentenced to undergo imprisonment for life & to pay fine of Rs.1 ,OOOI- with default sentence of 6 month's R.l. (2) The facts, briefly stated, are as under:- Appellant Maniram Dewar and 4 other persons were charged u/ss 147, 148 & 302 read with 149 IPC. It was alleged that they being the members of an unlawful assembly, in prosecution of 2 Criminal Appeal N0. 975 of 2001 common object of that assembly, committed murder of deceased Shankar. It was witnessed by 2 eye witnesses namely Urmila Bai (PW-1) and Babioo (PW-2). Urmila Bai is the maternal aunt of the deceased, whereas, Babioo is the minor son of the deceased. The case of the prosecution was that on 22.3.2001 at about 4.00 p.m., deceased Shankar came in drunken condition and started abusing the appellant and his other family members (co- accused persons, who-are wife, sons and daughter of appellant Maniram Dewar). Brother of the deceased namely Dhiraj took the deceased inside the house. After sometime, the deceased again came out of his house and started abusing the accused persons. The allegations are that on his such conduct, appellant Maniram Dewar assaulted the deceased with tangia, leading to his death. The matter was reported to the concerned police station by Urmila Bai (PW—1), on which, a First information Report (Ex.-P/1) was registered. The F.l.R. contains the names of all the 5 accused persons. During the investigation, inquest on the body of the deceased was prepared under Ex.-P/8 and the dead body was sent for its post—mortem to Primary Health Centre, Chakarbhata, where the post-mortem examination was conducted by Dr. B.D. Sonwani (PW-8), who prepared his report Ex.-P/11. The Autopsy Surgeon noticed 5 incised wounds on the body of the deceased. He also noticed fractures on right occipital, parietal, temporal and frontal bones and opined that the cause of death was shock as a result of injury to vital organ-brain and it was homicidal in nature. (“2 ”J 3 Criminal Appeal No. 975 of 2001 In further investigation, a memorandum statement (Ex.—P/4) of the appellant was recorded u/s 27 of the Evidence Act leading to discovery of a tangia which was seized under memo Ex.—P/5. After completion of usual investigation, the charge-sheet was tiled against the 5 accused persons in the Court of Judicial Magistrate First Class, Bilaspur, who in turn committed the matter to the concerned Sessions Court, from where, it was received on transfer by the Sixth Additional Sessions Judge, Bilaspur, who conducted the trial and convicted and sentenced the appellant/accused as aforementioned, however, 4 other co- accused persons were acquitted. (3) Conviction of the appellant is based on the testimonies of 2 eye witnesses namely Urmila Bai (PW-1) and Babloo (PW-2). (4) Mr. Yogeshwar Sharma, learned counsel appearing on behalf of the appellant, has neither disputed the homicidal death of the deceased nor the involvement of the appellant in crime in question. He argued that. in fact, the appellant had exercised right of private defence because the deceased, armed with Iathi, came to the house oftthe appellant for assaulting him and his family members (4 co-accused persons) which caused reasonable apprehension to the appellant that if he does not assaults the deceased, he will kill them. He took us to the evidence of PW—1, Urmila Bai and PW—2, Babloo as also the contents of the F.I.R. and the inquest. (5) On the other hand, Mr. Praveen Das, learned Dy. Govt. Advocate \ appearing on behalf of the State, opposed these arguments and \ \ 4 Criminal Appeal No. 975 of 2001 supponed the judgment passed by the Sessions Court. He argued that the plea of right of private. defence was not available to the appellant and it was never taken by the appenant before the triat Court, therefore, the same cannot be entertained in the appeai, (6) We have heard the learned counsel for the parties at length and have also perused the records of the sessions case. (7) In the matter of Kashi Ram and others —Vs- State of M.P., AIR 2001 Sb 2902, the Apex Court held that though S. 105 of Evidence Act, 1872 enacts a rule regarding burden of proof but it does not follow therefrom that the plea of private defence should be specitiCally taken and if not taken shall not be available to be considered though made out from the evidence available in the case. A plea of self defence can be taken by introducing such plea in the cross—examination of prosecution witnesses or in the statement of the accused persons recorded under S. 313, Cr.P.C. or by adducing defence evidence. And, even if the plea is not introduced in any one of these three modes still it can be raised during the course of submission by relying on the probabilities and circumstances obtaining in the case. (8) Further in case of Bishna alias Bhiswadeb Mahato and others — Vs- State of W.B., (200§l 12 SCC 657, the Apex Court observed vide Para 78 that “Section 105 of the Evidence Act casts the burden of proof on the accused who sets up the plea of self-defence and in the absence ’ofproof, it may not be possible for the court to presume the correctness or otherwise of the said plea. No positive evidence although is required to be adduced by the accused; it is possible for him to prove the said fact by a. a. 5 Criminal Appeal No. 975 of 2001 eliciting the necessary materials from the witnesses examined by the prosecution. He can establish his plea also from the attending circumstances, as may transpire from the evidence led by the prosecution itself.” (9) In Salim Zia —Vs- State of Uttar Pradesh, AIR 1979 SC 391, the Apex Court said that it is true that the burden on an accused person to establish the plea of self defence is not as onerous as the one which lies on the prosecution and that while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of prosecution witnesses or by adducing defence evidence. (10) Therefore, we have no doubt to say that even if a plea of right of private defence was not specifically taken by the appellant at the stage of trial, but, if in fact, it was available to him, he may raise the plea on the probabilities and the circumstances obtaining in the case. No positive evidence, although, is required to be adduced by the accused and the burden of proof can be discharged by eliciting the necessary material from the witnesses examined by the prosecution and it can be established by attending circumstances as may come out from the prosecution evidence itself or it can simply be discharged by adducing the defence evidence. This view was taken by this Court in the matter of Akhilesh Kumar & others —Vs- State of C.G., 2008 (1) C.G.L.J. 85 (DB). Therefore, the argument of learned counsel for the State that the 6 Criminal Appeal No. 975 of 2001 plea of right of private defence cannot be entertained has no force and .the same is accordingly rejected. (11) Now we shall examine the argument of Mr. Yogeshwar Sharma about right of private defence. Right of private defence fails in the category of General Exceptions define under Chapter IV of the IPC. Section 96 provides that nothing is an offence which is done in the exercise of the right of private defence. This plea, however, extends not only to the person exercising the right; but to any other person. Sections 96 and 98 confer a right of private defence against certain offences and acts and Section 99 provides acts against which there is no right of private defence. It clearly provides that 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 the act, may not be strictly justifiable by law. It further provides that 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 and further 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. which the right may be exercised, it provides that the right defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 100 provides that the right of private defence of the body extends under the restrictions mentioned in the last preceding section to the voluntary causing of death 7 Criminal Appeal No. 975 of 2001 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 therein, 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". To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden in this behalf is on the accused. Sections 102 and 105 IPC deal with commencement and continuance of the right of private defence of body as well as property. It commences as soon as a reasonable apprehension of dan er to the although e the offenc y not have been committed, but not a reasonable appre nsion. I reasonable apprehension of the d ger to the bod arises from an attempt, or threat, to commit the offenc (12) Therefore, if claim is being made that the accused acted in exercise of power of right of private defence, he must show that there were prevailing circumstances giving rise to reasonable apprehension that either the death or grievous hurt would be caused if the right is not exercised. (13) Now we shall examine/the case on hand on the above principles. (14) Urmila Bai (PW-1) deposed that on the fateful day at about 6.00 p.m., she heard the commotion. Babloo (PW-2) was crying'as “mardala- 8 Criminal Appeal No. 975 of 2001 mardala". She immediately rushed near chabutra (platform) of her house. Chabutra is adjacent to the house of appellant Maniram. Maniram (appellant), Santram (son of Maniram), Chingra (another son of Maniram) and Seema (daughter of Maniram) were assaulting deceased Shankar. Seema was holding a tabbal and Maniram was holding a tangia. She lodged the report Ex.-P/1. Babloo (PW-2) was aged about 9 years on the date of incident. He deposed that his father was assaulted by Seema who was armed with a tabbal. Maniram has also assaulted his father by a tangia. Accused Santram and Chingra have also assaulted his father by crowbars. His father died on account of injuries sustained in the assault. ln the cross examination, he was confronted with his case diary statement (Ex.—D/2) in which he had stated that only Maniram had assaulted his father with tangia and the facts relating to assault being made by other co-accused persons by tabbal and crowbars are not there. The contents of the F.l.R. (Ex.-P/1) would also show that the allegations regarding actual assault to the deceased were only made against appellant Maniram and the acts attributed to the other accused persons were that they had surrounded the deceased while the assault was being given by the appellant. It appears that on account of above omissions, the other co-accused persons have been acquitted in this matter. ln further cross examination, Babloo (PW-2) categorically admitted that it is true that the incident begun on account of abusing by his father’and it is also true that his father had gone to the place of occurrence with a lathi for making assault and further that the quarrel begun on account of challenge made by his father. Hie further admitted that it is also true that his father had firstly assault Seema, Santram and Chingra. Admittedly, 9 Criminal Appeal No. 975 of 2001 the occurrence took place in front of house of the appellant which is apparent from the map (Ex.-P/10) as also the inquest (Ex.-P/8). In appreciation, we find that deceased Shankar, armed with a lathi, went to the house of the appellant and the quarrel begun on account of challenge made by the deceased The deceased has also assaulted the sons and daughter of the appellant and on this only, Maniram had assaulted the deceased. The injury report of accused Santram has been proved as Ex.- P/15. According to the said report, he sustained two simple injuries which were abrasions. In the above-mentioned prevailing facts and circumstanCes of the case, the inevitable conclusion is that deceased Shankar was aggressor and as such right of private defence had aCCrued in favour of the appellant as he must be having reasonable apprehension that if he would not defend himself and his family members,'the deceased may cause their death or grievous injuries to them. (15) Now we shall examine as to whether the appellant had proportionately exercised the right of private defence or he exceeded the power given to him by law by causing death of the deceased. The right of private defence, as stated above, is made subject to certain restrictions. In the first instance, the right, in no case, extends to the inflicting of more harm than it is necessary to inflict for the purposes of defence. lf, therefore, a person exercising the right of private defence, causes death where it is not necessary to do so for the purposes of such defence, he exceeds the power so given to him by law under Exception 2 of Section ’300 IPC. The question of the operation of Exception 2 arises only if the alleged offender exceeds the right of private defence subject to limitations that he caused death of a person,without premeditation and that the . 10 Criminal Appeal No. 975 of 2001 death of the deceased was without any intention of doing more harm than what was necessary for the purposes of defence. in the present case. the deceased came to the house of the appellant with a danda in his hands. He was in drunken condition. He started abusing the appellant and his family members (other co-accused persons) and he also given assaults to the family members of the appellant. It is on this act of the deceased, the appellant inflicted multiple tangia blows to the head of the deceased. The above circumstances would show that though the act of the appeiiant was without any intention but the appellant certainly exceeded the right by inflicting more injuries to the deceased and the case of the appellant would fall within the ambit of Exception 2 of Section 300 IPC. In such situation, the appellant cannot claim acquittal. In the facts and circumstances of the case, though the charges of murder would fall but the appellant would be liable to be convicted u/s 304 Part-l IPC. (16) Accordingiy, the appeal is partly allowed. The conviction and sentences awarded to the‘appellant u/s 302 IPC are set aside. instead, the appellant is convicted u/s 304 Part-i IPC and sentenced to undergo R.i. for 10 years. The appellant is in jail since 24.3.2001. He shall be entitled to set—off the period already undergone by him. Sd/— SU'NIL KU'MAR SINHA Judge \ SCU- Chief Justice vatti H 2_.~..._.s .g. » Li.