CR.A/1069/1997 1/37 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1069 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE A.L.DAVE HONOURABLE MR.JUSTICE BANKIM.N.MEHTA ========================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ========================================= MUSABHAI AHMEDBHAI DHUDHIA - Appellant(s) Versus STAT OF GUJARAT - Opponent(s) ========================================= Appearance : MR BS PATEL with Ms. Kiran Pande, for the Appellant. MR PD BHATE, APP, for the respondent-State. ========================================= CORAM : HONOURABLE MR.JUSTICE A.L.DAVE and HONOURABLE MR.JUSTICE BANKIM.N.MEHTA Date : 19/06/2006 CR.A/1069/1997 2/37 JUDGMENT ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE A.L.DAVE) 1. By this appeal, the appellant challenges the judgment and order passed by learned Sessions Judge, Bharuch, on 26th November, 1996 in Sessions Case No.107 of 1996, convicting the appellant for offences punishable under Section 302 of the Indian Penal Code and Section 135(1) of the Bombay Police Act. The learned Sessions Judge sentenced the appellant to undergo rigorous imprisonment for life and to pay a fine of Rs.1000/- and, in default, to undergo rigorous imprisonment for further period of six months for the offence punishable under Section 302 of I.P.C. The appellant is also sentenced to undergo rigorous imprisonment for four months and to pay a fine of Rs.500/- and, in default, to undergo rigorous imprisonment for a further period of three months for the offence punishable under Section 135(1) of the Bombay Police Act. 2. The appellant is alleged to have committed murder of his brother, Valimohmad Dudhiya, on 11.11.1995, at about 17.55 CR.A/1069/1997 3/37 JUDGMENT hours, at village Sitpone, in front of their house, by inflicting knife blows on the deceased. 2.1 As per the prosecution case, the appellant and deceased-Valimohmad Dudhiya, were blood-brothers. The appellant was staying on the first floor of the house, whereas the deceased was occupying the ground floor. The appellant has a sister, who was staying with the deceased. The relations between the brothers were not good. On the day of the incident, firstly, at about 5.00 P.M., there was a quarrel between the two brothers, neighbours intervened and separated them and the appellant was sent to his home on the first floor. When the deceased was parking his hand-cart, suddenly, the appellant came from his house with a knife and inflicted two blows on the left side of trunk of the deceased. The deceased fell down immediately and was profusely bleeding. At that time, as per the prosecution case, Yunus Adam Talati, Yunus Vali Mogra and Adam Ahmad Vania, who were in the vicinity, caught hold of the appellant, took away the knife from him and then took Valimohmad Dudhiya as well as the appellant to Bharuch Civil Hospital in auto-rickshaws. Unfortunately, the CR.A/1069/1997 4/37 JUDGMENT deceased succumbed to the injuries while being taken to the hospital and was declared dead by the doctor on reaching the hospital. It appears that the appellant had also injuries on the back of his head as well as in the face and was treated therefor. An F.I.R. was lodged in respect of this incident by Yunus Adam Talati. It appears that the appellant also lodged an F.I.R. alleging that the deceased had caused injury on his head with a brick. 2.2 The Police registered the offence against the appellant and having found sufficient material against him during the course of investigation, filed charge sheet in the Court of learned Chief Judicial Magistrate, Bharuch, on 15th February, 1996. Criminal Case No.6517 of 1996 was registered. However, as the offence alleged against the appellant were exclusively triable by Court of Sessions, the case was committed to the Sessions Court and Sessions Case No.107 of 1996 came to be registered. 2.3 Learned Sessions Judge framed charge against the appellant at Ex.2 for offence punishable under Section 302 of the I.P.C. and section 135 of the Bombay Police Act. The appellant- CR.A/1069/1997 5/37 JUDGMENT accused pleaded not guilty to the charge and came to be tried. 2.4 During the course of the trial, the prosecution led its evidence. The accused-appellant also adduced evidence by examining a witness as well as he himself entering into the witness box. 2.5 The accused-appellant took a plea of exercise of right of private defence. Learned Sessions Judge, however, after considering the evidence as a whole, came to a conclusion that the prosecution was successful in establishing the charges levelled against the accused-appellant and recorded conviction while not accepting the plea of the accused-appellant of exercise of right of private defence. The learned Judge recorded conviction for offences punishable under Section 302 of the I.P.C. and Section 135 of the Bombay Police Act and passed the order of sentence, as stated hereinabove. 2.6 Aggrieved by the said judgment and order, the accused- appellant has preferred this appeal. CR.A/1069/1997 6/37 JUDGMENT 3. The appellant is represented by learned Advocate, Mr. B. S. Patel, appearing with Ms. Kiran Pande. Respondent-State is represented by learned Additional Public Prosecutor, Mr. Bhate. The record and proceedings are before us. 4. Learned Advocates appearing for the appellant submitted that the Trial Court committed an error in not accepting the plea of the appellant about exercise of right of private defence. It is submitted that it cannot be denied that the death of the deceased was neither natural nor suicidal nor accidental. The death has occurred in a transaction where the appellant apprehended risk to his own life or risk of grievous hurt being caused to him and, in order to avert the causing of such injuries, was required to use his right of private defence. While exercising the right of private defence, the injuries were caused to the deceased, to which he ultimately succumbed. The case cannot, therefore, fall within the ambit of definition of murder. It is submitted that the Trial Court ought to have appreciated the evidence placed before it as a whole. The Trial Court has CR.A/1069/1997 7/37 JUDGMENT overlooked the aspect that the defence is not required to prove its case of exercise of right of private defence to the hilt. Only probability has to be shown by the defence and, if that probability is shown, the benefit of that doubtful situation may be given to the accused, as per settled propositions of law. 4.1 It is also submitted that the other circumstances like conduct of the accused, conduct of witnesses, non-explanation of injury of the accused by the defence are also not properly considered. 4.2 It is submitted that the case of the appellant has consistently been that the deceased caused injury on his head with a blow of brick and as a reaction thereto, the appellant caused the injuries to the deceased. In the entire evidence of the prosecution, the prosecution has not explained as to how the injury was caused to the appellant. It comes on evidence that, during the course of investigation, it was revealed that the appellant had sustained injury on his head with brick and still no explanation is given by any of the witnesses in this regard while their statements were CR.A/1069/1997 8/37 JUDGMENT recorded by the police. It is submitted that the prosecution witnesses do not stop there, but they improve upon their story during the course of their depositions and state that the appellant sustained injury on his head while he tried to escape from the place after the incident. This part was told by these witnesses, for the first time, when they entered the witness box. It is submitted that, it is not an innocent improvement, addition or omission on part of the witnesses. They added this part in their depositions only with a view to ensure that the accused-appellant fails in his plea of exercise of right of private defence. It is, therefore, submitted that non-explanation of injury on person of the accused may be viewed seriously. 4.3 It is also submitted on behalf of the appellant that the conduct of the appellant is relevant. After the incident, the appellant did not even attempt to escape from the place of incident. Once he was caught and made to sit on a side, he sat there till he was taken to hospital. If the appellant had deliberately murdered the deceased, he would have tried to escape from the place as a natural conduct of an ordinary man. CR.A/1069/1997 9/37 JUDGMENT 4.4 It is also submitted that plea of private defence can be raised at any point of time. It is not even required to be raised, but if a possibility is shown and the defence seems to be probable, the benefit has to be given to the accused-appellant. 4.5 It is submitted that from the deposition of the appellant himself and that of the Investigating Officer, it emerged during cross-examination that the accused-appellant had been injured with a brick by the deceased and, therefore, the plea of the appellant of exercise of right of private defence may be accepted and, resultantly, the appellant's conviction by the Sessions Court may be set aside and the appellant be acquitted of the charges levelled against him by allowing the appeal. 4.6 By way of alternative plea, it is canvassed on behalf of the appellant that, if the Court feels that the appellant has exceeded his right of private defence and the ingredients for exercise of right of private defence to the extent of causing death were absent, then also, the appellant can be said to have exceeded his right of private CR.A/1069/1997 10/37 JUDGMENT defence and, if not clear acquittal, the conviction would be for an offence of culpable homicide not amounting to murder punishable under Section 304 of I.P.C. 4.7 In support of the aforesaid contentions, learned Advocates for the appellants relied on the following decisions :- (1) Kesha and Others v. State of Rajasthan, AIR 1993 SC 2651. (2) Dev Raj & another v. State of Himachal Pradesh, AIR 1994 SC 523. (3) Haike and another v. State of M. P., AIR 1994 SC 951. (4) State of Punjab v. Gurbux Singh and Others, 1995 Supp. (3) SCC 734. (5) Wassan Singh v. State of Punjab, 1996 Cri. L.J. 878. 4.8 It is submitted that the evidence of eye-witnesses suffers from the vice of omissions and improvements made with a view to suit the prosecution case and with a view to mar the defence plea of exercise of right of private defence and, therefore, the appeal may be accepted, the judgment and order of conviction and sentence may be set aside and the appellant may be acquitted of CR.A/1069/1997 11/37 JUDGMENT the charges or, in the alternative, the conviction may be altered to one under Section 304 of I.P.C. in place of 302 of I.P.C. 5. The appeal is opposed to by learned Additional Public Prosecutor, Mr. Bhate. According to Mr. Bhate, the Trial Court has properly appreciated the evidence and has recorded conviction. There are three independent eye-witnesses to the incident besides the widow of the deceased, who has also seen the incident. The case cannot fall within the ambit of exercise of right of private defence. Mr. Bhate submitted that the occurrence of the incident is divided into two parts, the first part occurred when there was a quarrel between the brothers and the brothers were separated and the second part occurred after some time when the appellant came with a knife from his house and without any reason caused knife injuries to the deceased, which proved to be fatal. Mr. Bhate, therefore, submitted that there was no question of nurturing the apprehension to the life of the accused. 5.1 The injury that was allegedly caused to the accused- appellant was only with a brick and was not a grievous hurt. The CR.A/1069/1997 12/37 JUDGMENT appellant, therefore, could not have exercised the right of private defence much less to the extent of causing the death of the deceased. Mr. Bhate submitted that the story of the eye-witnesses is consistent. As against that, if the defence version is taken, Mr. Bhate submitted that the defence is consistently inconsistent, new theories are advanced during cross-examination of each of the witnesses and altogether new theory is advanced by the appellant- accused in his deposition on oath. No reason is shown to doubt the testimony of eye-witnesses. It is submitted that the Trial Court took into consideration all relevant aspects and recorded conviction and, therefore, the appeal may be dismissed. 5.2 Mr. Bhate has relied on following judicial pronouncements :- (1) State of M.P. v. Ramesh, 2005 SCC (Cri) 1443. (2) Babulal Bhagwan Khandare & Another v. State of Maharashtra, 2005 SCC (Cri) 1553. 5.3 It is submitted by Mr. Bhate that the involvement of the CR.A/1069/1997 13/37 JUDGMENT appellant in the incident cannot be disputed by the appellant and the version of the eye-witnesses rule out the possibility of right of private defence being available to the appellant, least it being available to the extent of causing death of the deceased. The appellant caused fatal injuries to the deceased, which were found sufficient in ordinary course of nature to cause death of the deceased and conviction, therefore, was justified. Mr. Bhate submitted that the evidence of eye-witnesses cannot be thrown out only on the ground that the witnesses did not explain the injury on head of the appellant in their statement and came out with explanation, for the first time, in their deposition. This non- explanation or improvement may not be treated as deliberate or fatal to the prosecution case, particularly, when the evidence itself is not sustained. It is submitted, therefore, that the appeal may be dismissed. 6. We have gone through the record and proceedings and have considered the same in light of the contentions raised before us and the case law cited in support thereof. CR.A/1069/1997 14/37 JUDGMENT 7. As has been rightly contended, in this case, the question of occurrence of the incident and involvement of the appellant in the incident case is not in dispute. The appellant has broadly contended that because the deceased caused injury to the appellant on his head with a brick, he exercised his right of private defence, which resulted into the death of the deceased. In this regard, the details which are emerging from the suggestions made to the eye- witnesses and his case in his deposition would be of relevance. But, before considering the questions as to whether the appellant could have nurtured a reasonable apprehension giving him a right of self-defence extendable to causing death of the deceased and whether the appellant properly exercised that right or exceeded the same, it would be appropriate to refer to certain propositions of law, as are well settled. 8. Section 96 of the Indian Penal Code provides that nothing is an offence which is done in exercise of right of private defence. The proposition is further defined by provisions contained in Section 100, which deals with a situation where a right of private defence of the body exceeds to causing death. The said CR.A/1069/1997 15/37 JUDGMENT section enumerates six situations, which would entitle a person to exercise the right of private defence of body, which can extend to causing death of the assailant. The first two of them are relevant, which provide that such right can be exercised, if an assault is committed on such person as may reasonably cause an apprehension that death will otherwise be the consequence of such an assault or that such an assault may cause a reasonable apprehension that grievous hurt will otherwise be the consequence of such an assault. 8.1 Section 102 of I.P.C. provides that right of private defence of body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed and it continues as long as such apprehension of danger to the body continues. 8.2 It is, thus, clear that, if an act is claimed to have been done in exercise of right of private defence of a person, the person taking such a plea has to show that there were circumstances CR.A/1069/1997 16/37 JUDGMENT which caused a reasonable apprehension that his death was likely to be caused or grievous hurt was likely to be caused to him as a consequence of the assault unless he exercised his right of private defence extending to causing of death of the assailant. Such right would commence the moment a reasonable apprehension arises from an attempt or a threat to commit the offence and would continue as long as such apprehension of danger to body continues. There is no need to wait till that offence is committed by the assailant. 8.3 By virtue of provisions contained under Section 105 of the Evidence Act, when a person facing charges of criminal offence takes a plea that his case falls within any of the general exceptions in the I.P.C. or within any special exception or proviso contained in any other part of I.P.C. or in any law defining the offence, the burden of proving existence of circumstances and bringing the case within such exception is upon the person taking the plea. The section also provides that the Court shall presume absence of such circumstances. CR.A/1069/1997 17/37 JUDGMENT 9. With the above settled propositions of law, it will have to be examined whether, in the instant case, the appellant could have had a reasonable apprehension that, if he did not cause death of the deceased, the action of the deceased might result into death of the appellant or might result into causing of grievous hurt to the appellant. The next question would be whether the action taken by the appellant was just enough to protect himself from the apprehended death or grievous hurt or whether the act was in excess. The evidence has to be examined from this angle. 10. The prosecution has examined as many as 19 witnesses. Out of these 19 witnesses, depositions of P.W.2-Yunus Adam Talati (Exh.10), P.W.3-Yakub Umarji Kamal (Exh.11), P.W.14-Yusuf Vali Ibrahim Mindiwala (Exh.58) and P.W.15-Hanif Ibrahim Aakubat (Exh.59) are relevant so far as the incident is concerned. Since the incident is not in dispute and the other aspects are also not in dispute, the evidence of these witnesses would be relevant to examine whether there were circumstances leading to a reasonable apprehension of death or grievous hurt being caused by the CR.A/1069/1997 18/37 JUDGMENT deceased to the appellant, as is claimed by the appellant and whether the appellant acted in exercise of his right of private defence and, if 'yes', whether he exceeded the same. 11. P.W.2-Yunus Adam Talati is the first informant. He says that the incident occurred on 11.11.1995. That he was standing near Undi Falia, at a corner. He was in company of Yunus Vali Mogra, Yusuf Mindiwala, Hanif Ibrahim Aakubat, etc. They noticed a quarrel between the appellant and his deceased brother, Vali Ahmed Dudhiya. He says that he was standing at a distance of about 12 to 15 feet from the place of incident. The witness says that he and Yusuf Mindiwala intervened between the two brothers and then the appellant went to his home on the upper storey. Thereafter, when the deceased was parking his hand-cart, the appellant came out from his house and inflicted knife blows on the deceased. The witness says that he was about 10 to 12 feet away, at that point of time. The injuries were caused on the left side of the trunk. Yunus Vali Mogra and the witness snatched away the knife from the appellant. The boys went to call Sarpanch. The Sarpanch came to the spot within 10 minutes. The appellant tried CR.A/1069/1997 19/37 JUDGMENT to escape, but they caught hold of him. The appellant, while attempting to escape, fell on the floor and sustained injury on his head. Deceased Vali Ahmad was lying on the ground and was bleeding. He was alive. After the Sarpanch arrived, they took the deceased and the appellant to Bharuch Civil Hospital in auto- rickshaws. Both the rickshaws reached the Civil Hospital simultaneously. The deceased was examined by the doctor and was declared dead. The appellant was treated by the doctor. The witness says that he carried the knife with him to the hospital, which he had snatched away from the appellant. He handed over the same to the police at the Civil Hospital. The witness then identifies the knife, the clothes of the deceased and the appellant as well as footwear of the deceased. 11.1 During cross-examination to the defence, the witness asserts that though they were talking, their eyes were towards the place of incident as the appellant and the deceased were quarrelling. The witness says that, in the first incident, the appellant and the deceased were quarrelling in front of their house. The incident of knife occurred ten minutes thereafter. He also CR.A/1069/1997 20/37 JUDGMENT states that, in the first incident there was a scuffle between the two brothers, which lasted for about 5 to 7 minutes. He says that, they had intervened and separated the two. He also says that he did not inquire about the cause of the quarrel. During cross-examination, he also states that, in the second incident, he saw that the appellant first assaulting the deceased with knife. This incident also occurred in front of the house of the appellant. The appellant came from the side and inflicted knife blow on the deceased when he was parking his hand-cart in a bent position. The witness says that the incident of giving knife blows occurred exactly at 5 minutes to 6 o' clock. 11.1.1 During cross-examination, a suggestion was put that the deceased had given blow with a brick to the appellant, which he denies. He also denies that because of the injury caused with the brick, the appellant fell down. He also denies the suggestion that when the appellant tried to get up, the deceased brought out a knife from his hand-cart and tried to cause injury to the appellant. He also denies the suggestion that, at that time, the CR.A/1069/1997 21/37 JUDGMENT appellant gave a push to the deceased, as a result, the deceased fell down with the knife and in that transaction, sustained injury with the knife. He also denies the suggestion that the deceased pulled out the knife from his body and rushed towards the appellant with the knife. He denies that the appellant caught hold of the hand of the deceased and that there was a scuffle between the two and that, in that scuffle, the deceased sustained injury with knife. He denies the suggestion that the appellant did not cause any injury to the deceased with a knife. 11.2 The F.I.R. given by this witness is exhibited at Exh.21, which is consistent with the version given by this witness in his deposition. 12. The second important witness is P.W.11- Jebunvali, wife of Vali Ahmad, who is examined at Exh.50. She also claims to be an eye-witness to the incident. She says that the incident occurred on 11.11.1995 at 6 o'clock in the evening. She says that there was quarrel amongst the children on that day in the afternoon, between 3.00 P.M. and 4.00 P.M. The appellant is her CR.A/1069/1997 22/37 JUDGMENT husband's elder brother. On the day of the incident, there was a quarrel between she and the wife of the appellant in the morning between 9.00 A.M. and 12.00 noon. 12.1 On the day of the incident, there was a quarrel between the appellant and her husband. At that time, Mogra Yunus, Mindiwala Yusuf and Ibrahim Kadu were present. These three persons separated the deceased and the appellant. The appellant