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STATE Of GUJARAT

v. llA I FATIMA & AN R.

- March J 9, 1975

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. • • LAGlRISWAMI AND N. L. UNTWALlA~ JJ.]

G\'tdencc-Apprecicuio!l of-Rig/a of prirare If, ll . . t ei/CC- OIV l!5lllbltJftctf.

l<.cspon<.lnts. Nos. 1 <mu ., were moth . d d h the brothl!rin-law of respond; nt No 1 t nn ·~ 1£ ter.

The 1.kceased \~<IS occurrence, the relations between th· t' rr s?me uys before the t.lat~ of the the l<_tY of th~ occurrence there wasc.: a ~ufll~

1 ~~~-;~rho~~ ~~d~~{~'id n

lcc~,1sd. A ltttlc ater, \\lhcn the dccca5ed was sining in the bcfusc of hi$ father: tn-luw Jn the Ojlp~~Jtc ro~ of houes. rc:sponucnt No. J W<IIS alled to have g

t~ the dccacd wtth a stick 1~ beat him.

Some nci:;:hboun intervened nn~ tncd lo P•ICtfy both the parttcs.

When the d~:easc!.l was going out responde t No. 1 l'Ut tc:r leg across the kJ:,'S of the deca.scd, a~ a result of ":hich he fell down on hts b;1ck.

Respondent No. 2 immcditely caught hold of both the lwnds of the dcccnsed anr.J rcsronJent No. 1 :.S llltcd to h; ve squeezed his testicles n~ pulled them. Eventually thl! decca.'>ed uccumbc:d to the injury.

After the utctJent rcsponent No •. l lodgcll ? complaint before the police st:ting that the c.leceascd, hts wafe anti Ills mothcr-mhtw caught holu of hc:r nnd save her blows

m•d kids with a stkk as n result of \"hkh r.he fell down..

Hulding that the. prosecution Ca'ic wa-; proved beyond reasonable <.lvubt the Se~., ions Judc.: comh; tcd respondent No. l under s. JO.S. Part-!, J.P.C. .Re; pon-

Jnt No. 2 w:ts comktcd unth:r s. 3.23 rc.:ad with s. 144. LP.C. On appeal, the Hin Court, even uftcr believing the main part o( the occurrence, acquitted respondent No. 1 of the charges levelled against her nnd consequently respondent r-io. ::! ul\u on the g•ouod thi.lt she must have done so in e:tercise of her right of private: tlcfcm; c inasmuch as she nmo; t ha\'e squee:£ed the testicles of the dc-

..:c=ad when he ww• !lho\\..:ring blo\\s \\ith a tick on her in order to protect hcr-xdf.

Allov.ing the aprcal of the St<tt~.

HELD ; (I) The trial court \\-U.S ri, gt !n belieing th¢ evidence '!r the P!O- ';:cution \lt itncsc-; in regard to both the tnCIUI!I_lts and the occurrence m ques1.10n formine; purl of the second inciJent. .The H1gh Court dilfered from the Vli!W of the trial judge: on 11inl"Y &.nd umuslamab_le grounJs. l998 D-E)

(2J iherc . was ab, olutdy no basi~ r m:1h:rbl on the recrd to .enable, the J ligh Court to rcconl un '!rJcr of ncqlllllat m f~,-.ur of the resonJcnts b~ e..~· tending them a right of pm.-Le defence.

E\n gmng to lhe ma.xu~um c.dn~ m fuvour of the rcspunJI!nl'i that r~-; ponucnt No. ot th~ b!ows '\ !th n st•ck at

tl e huml'i of the dci.."C>ts~J nml i':' the second 11\Ctdcnt 1t lS mu~•Cest tha.t .her , r 1 o( uault on him \\-aS n dhbcrate counter-attack to cause htm such nJury ul !h . t ! •a t was ltkely to ~.:auc his death. 'fhe countcrattack cold m Dll , ~~~ 0~ u~ ~tl&d. in e,, crd~ of the right of pnvate ddcnce. (1000 f-G] ·.

N 1 . hr com1, Iainl bcf0rc the polkc nor in the statment under

I 3) ctt It: r an . ,

1 N 1 of her ha\'tnS squeezed 3 ,.., (' p (.' wt, there a wh1.., pcr by re:-; punvclt o. . . !f. .. .. , . r. ' • ' .. . rt of thi! uccu in e.xen; ie of her nght Of prt\'<!IC 111~ tc'lln:lc!) auJ pma.te ~~ \:a of privatt ddcn-.:c nlt tulcn by the re.ponets dfcncc. Nol only "~ 1 t P3 .. p Cr p c but no basis for the plea was l:uu 1R in their titulcmnls. un er 5• sC~:llin \\itu~--s or by nl.lducins ny defence the cru!>scxatmnatao~ of r'h\ft, lih ing that pl"a \\'aS not l.lisl!h:\rgeJ m ~~~ wy evidence. Th" bunh:t~ o iying the tc-; t ot prrronderunce of probabtlltJed m

h)' the I'C~!!pOI'l\lenl~ C:\~~h~pis -bsolutd)' no matcri<tl on the record to ea to ru\'OUr of th ~t ~.lea. [91J~ GHl 'I w.:h. cunduton. c R 4 < J u n ) 1 0 1 , " v D, lhi ..!11 mit•i ~~ rc~1io11 [ 19681 2 S. · • ;:~ • A!llllltl Uum CUll I u r. , . followed.

J7-LS64SC1J73

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CRIMINAL APPELL,\TE JURISDICTION : Criminal Appeal No. 67 of 1971.

Appeal by spcial leave from the Judgment & Order dated the 17th July, 1970 of the Gujarat High Court in Crl. A. Nos. 287 and 128 of 1969.

R. H. Dhebar and R. N. Sachthey, for the appellant.

A. S. Qureshi, Vinal Deve and Kailash Mehta, for the respondents.

The JudgnJ.ent of the Court was dlivcred by

UNTWALIA, I.- There is •a. locality known as Nani Malokoad m C the town of Kaloy, District Mehsena, Gurat. In this locality is a road (lane) running north to south. Bai Fatima, respondent no. 1 in this appeal filed on grant of special leave by the State of Gujarat, is the wife of Allarakha Hussemkhan. He had a younger brother named Gulabkhan Husseinklian. The victim of the occurrence is the said Gulabkhan. Both the brothers had their houses adjacent to each other in this lane faci!ag cast. The northern one was in occu- D pation of and belonged to the fi)cceased and the southern one was of Allarakha. There are a number of other houses situated around the houses of the.two brothers.

One such house is of Sardarkhan Muradkhan facing west abutting the road, two houses north of the house of the deceased. Jamiyatkhan is the son of Sardarkhan, father-in-law of the deceased Gulabkhan.

In the month of June, 1968 a compla41t was made to the Kalol Municipality by persons of the locality including the deceased and some of the prosecution witnesses that Allarakha, husband of respondent no.l was discharging dirty water of his house towards East which collects on the road and causes nuisance to the residents of the locality.

That had caused friction between the families of the two brothers. ·

On 27.6.1968 according to the prosecution story there were two incidents in the Angana i.e. space on the road in fro1J.1t of the houses

of the parties-one was at 5.30 p.m. and the other at 6.30 p.m. The prosecution case is that a she-goat of Gulabkhan strayed in the house of Fatima. She began giving blows to the goat. There were altercations between the members of the families of the two brothers. Respondent no.2 who is a married daughter of respondent no.I and her G

so~1 Liyakat who was 15 years old on the date of occurrence were also present at the time of this quarrel. They threw stones which hit P.W.3 Nannubibi, wife of deceased Gulabkhan, one Rahematbibi and P.W. 4 Noorbibi-a neighbourer and a close relation of Nannubibi Respondent no.l is said to have come out with a stick from her house and went to Gulabkhan to strike him. 011e Allarakha Rehman-a close neighbour came there, caught hold of the stick, quietened res- H pondent no.l and sent her back to her house The second part of the story is that Gulabkhan and Nannubibi went and sat in the Angaro of

GUJARAT V; BAI FAll~A (Untwa/ia, /.) 995

Jami)'atkhan son of Sardarkhan, father-inlaw of Gulabkhan.

Respondent no.l about an hour Iate.i.· went with a stick in her hand and hurled ablow oa Gulabkhan. Nannubibi intervened and got the blow on her right hand finger.

Gulabkhan directed respondent no.l to go back to her house by gestures of his hand and he also proceeded and

pused her towards• her house._ hen Gulabkhan reached the Angana of hts house: respondent no.l ts sard to have put her leg across his legs with the result that e fell dOWtl on his back.

Respondet no.2 caught ho1d gf the hanGs of Gulabkhat:~· Respondent no.l sat on his legs and squeezed his testicles and pulled them.

The boy Liyakat is said to have bitten the deceased on the left shoulder.

Gulabkhoan thereafter was made to recline on a cot. Eventually he died of the shock due to the pressing of his private parts by respondent no. 1. Information was sent to the Police Station.

A complaint of Naianubibi was recorded at about 10.30 p.m. Liyakat was sent for trial bei'tre the Juvenile Court. Respondent nos.l and 2 were tried by the Stssions Judge, Mehsana.

The learned Sessions Judge held the prosecution story to be proved . beyond reasonable doubt in all material particulars.

Finding that the injury caused to Gulabkhan in ordinary course of nature may not be sufficient to cause his death but was likely to cause his death, he convicted respondent no.l under section 304 Part-I of the lndizn Penal Code and sentenced her to undergo rigorous imprisonment for 7 years.

She was further convicted under section 323 a'ad was given a concurrent sentence for 3 months under this count.

Respondent no.2 was convicted of an offence under section 323 read with section 114 of the Pe;.1al Code and was sentenced to undergo rigorous imprisonment for 3 months.

The respondents filed an appeal in the Gujarat High Court from the order of conviction recorded against them arid the State went up in appeal for their conviction under section 302 of the Penal Code read with section 114 in the case of respd.1dent no.2 The

State appeal was dismissed by the High Court and that of the respondents allowed.

The State came to this Court and obtained special leave from the judgment of acquittal recorded by the High Court in the respondents appeaL The dismissal of the State appeal by the High Court is final. •

The three eye witnesses to the occurrence are P-W.3 Nannubibi.

P.W.4 Noorbibi and P.W.6 Jel.latbibi.

The latter two are neighbourers and related to Nannubibi. The Trial Judge believed their evidence.

He a]so believed the evidence of P.W.7 Gulamanabi Shermohmad-a close neighbour of the parties to whom oan oral dying declaration is said to have been made by Gulabkhan before his death.

It may be stated here that P.W.8 Rasulbhai was sitting in the Bazar at some distance from the place of occurrence t1 the evening of the 27th June,

1968. He got the information at about 9.45 p.m. about the death of Gulabkhan. He rushed to the Police Station and merely informed about his death.

It is also necessary to note here that respondent no.l had received some injuries o~ her persd11 in either of the incidents which took place

on the e:vening of 27th June, 1968. Prosecution did not explain the. injuries on her person but the Trial Judge inferred that they must have been caused in the first incident which took place at 5.30 p.m. and not in the second which was the subject matter of the charge against the respondents.

The High Court has held in favour of the prosecution on the main part of the occurrence, namely, squeezing of the testicles of the deceased by respondent no.l as a result of which he died. Yet it has disbelieved the prosc<.:ution case in regard to some other aspects. It has not •accepted the prosecution story that there were two incid ·nts in the cve'.ling.

Nor has it accepted the version that shortly _after the first incident Gulabkhan and Nannubibi had gone to the Angana of J umiyatkhan. The story of falling down of the deceased by the

trippi',1g of his legs by respondent no.l has been discarded by the High Court. So also the evidence of P.W.7 Gulamnabi. Even after b(!lie~

ving the main part of the occurrence the High Court boas exonerated respondent no. l of the charges levelled against her and consequently respondent no.2 also on the ground that she must have done so in. exercise of her rigbt of private defence in as much as she must }rave squeezed testicles of the deceased when he was showering blows with a stick on respondent no. 1 in order to protect herself. ' In our opinion there arc: two many conjectures, surmises and contradictions in the judgment of the High Court. The respondents had not examined a.1y witness to give any counter version of the occurrence or to justify the assault on testicles of the deceased which rcsultecf in his death.

The High Court has said in its judgment:-

( 1) "There is also no doubt that since some day~ _prior

to the date of the incident the relations between the

deceased and the family of accused no.l were not cordial." •

(2) "There is no doubt that a quarrel did arise on that

day" (meaning thereby the date of occurrence "between the deceased and accused no. 1 in respect of a

goat."

(3) "It is very reasonably clear that the squeezing of the testicles of the deceased was in an probability the act of accused no.l"

( 4) "There is further no doubt that the deceased did die on account of squeezing of his testicles in the evening G that day at round about 8.30 p.m."

On the findings aforesaid if theclaim of right or private defence put forward on behalf of respoadent no.l was untenable as we shall show hereinafter it was wholly so, then it is _plain that the High Court ought not to have interferred with the .order of conviction recorded bv the Trial Court. Even. in face of the said findings the, High Court criticized H the prosecution case as regards some details . of the occurrence or the

ncidents and rejected a good portion of it.

We shall briefly shov that the said rejcctid, l by the High Court was wholly unjustified.

.A There were two incidents accord!ng to the prosecution case which happened in the evening at an interval of about •an hour. High Court says it was not so and says so without any basis.

The prosecution did not stand to. ga~.1 nything by splitting up the evening incident in two parts.

Even in the First Information Report, Ext.32 recorded at 10.30 p.m. in the night the two incidents were separately narrated.

8 There was ab~Jlutely no reason for the High Court to interfere with the findings of the Trial Court in that regard.

Tbe High Court does '.lot accept the prosecution sto.ry that deceased Gulabkhan had gone to the Angana of J amiyatkhan and respon<fent . no. 1 went there as an aggressor wiTh a stick in her hand. This story

h•as been discarded on the ground that it is not mentioned P.1 the First Information Report nor in the statements of the other two witnesses before the police.

We. may observe •again that the prosecution did not" stand to gain anything by unnecessarily or falsely introducing the story of Gulabkhan's going to the Angana of his father-in-law. The main occurrence happened in the Ah.gana of Gulabkh'ari.

The places are so very near that the story of Gulabkhan goi~1g to the Angana of his rather-in-law was not an important one to be remempered by the witneses to be recited before the police. It mattered little wnether respondent no. I went as an aggressor to the Angana of the deceased or a bit further North to the Angana of J amiyatkhan.

High Court also discarded the story of the tripping of the legs of Gulabkhan because it is not mentioned i'.l the First Information Report.

But the.l it ought to have been noticed that no such ontradiction was to be found in the evidence of P.Ws 4 and 6 in Court and their statements before the police. It must, therefore~ be presumed that they had given out the ripping story before the police.

The High Cotirt has not thought it safe to rely upon the evidence of the three eye witnesses 1.1one of whom was found to be disinterested in the prosecution.

The comment is that Allarakha Rehman and Mansabu who lived in the house opposite .to the deceased have not been examined by the prosecution. According to the prosecution case the said Allarakha had merely quietened respondent no. 1 in the first iacident and Mansabu came after the second incident was over. In material particulars we find the evidence of the eye witnesses very convincing and natural. In our opinion the High Court was not justified in thinking that it was not safe to rely on their evidence wholly and speially when the main part of the occurrece which fastened the guilt on respondent no.l was not disbelieved. . . '

Absence of any details in the st•atement recorded at the police station on the basis of the information given by P.W. 8 Rasulbhai.l, m.- necessarily led the High Court to remark that no one k1ucw upto 10.00 p.m. as to how Gulabkhan died.

This contradicts the earlier findings of the Hig~. Court that h.e died as result of the squee7.iilg of his testicles by respondent :t10.l Rasulbhai, according to his evic)ence did not get the details of the occrrence and so did not give any to the police.

The High Court has given 3 or 4 reasO'as for dscarding the eidene of P.W. 7 Gulamnabi to whom the oral dying declaration JS said to have been made by the deceased. The first reason given by the High Court is that when this witness went near Gulabkhan the three women who claimed to have witnessed the occurrence were ·-sitting near him; none of them related the story to Gulamuabi. Wlien he put a question to Gulabkhan who being in a position to give the answer gave it, it was not necessary for him to talk to the women thereafter. Gulatnnabi was the person who had gone to call Dr, Rao to examine Gulabkhan. Dr. Rao came at 8.30 p.m. ai11d declared him to be dead. It was not necessary for Gulamnoabi to relate the details

of the occurrence to Dr. Rao as he himself had not witnessed it A!1other reason given for discarding the evidence of Gulamnabi is with reference to the evidence of Rasulbhai that upto 10.00 p.m. no one knew the exact reasQI, l for the death of Gulabkhan. Having accepted the prosecution story about the cause of his death it woas unnecessary to dilate upon the matter any further. The High Court has not disbelieve:d the lodging of the complaint before the police on the statement of' Nannubibi at 1.0.00 p.m. The last reason giyen is the non-examinatim1 of Dr. Rao by the prosecution. His evidence was

of no ttSe it and the comment of the High Court is not, the-refore, justified. -

We have unhesitatingly come tothe cvnclusion that the Trial Court was right in believing the evidence of the prosecution witnesses in regard to both the incidents crad the occurrence in question forming part of the second incident. The High ourt differed from the view of

he Trial Judge on. flimsy and unsustainable grounds.

Now we come to deal with the question of right of private defence.

It is no doubt true that the prosecution did not explain the injuries on the per&on of responde1at no.I. P.W.5 Dr. S. C. Masalia who had examined the injuries on the side of the prosecution also examtned Fatima, respondent no.l when she was sent to him by the police.

Fatima Bibi had lodged a complaint before. the police which was found to be a non-cognizable offence at about 8.00 p.m. on 27-6-1968.

That is Ext.44. In this complaint she stated that her young one of the goat had go~1e in the Angana of Gulabkhan. Three persons named in the complaint were Gulahkhan, Bai-bibi, mother-in-law of Gulaokhan and Nannubibi, hi!; wife.

The two ladies caught hold of her Odhana and began to give her blows of kicks and ftsts.

Gulabkhan gav<! stick blows on the right hand and so she fell down on the ground and began to shout. The injuries found on the persa'-1 of Fatima Bibi were 5 in number. Three contusions on the right forearm, one contusion on posteric-parietal part of right side of scalp and one contusid1.1 on scapular part of right side of back. The inJuries were all of minor character. In her statement under section 342 of the Code of Criminal Procedure, 1898 respondent no. 1 stated almost the soame story a!ad added that Gulabkhan was 4runk while he was abusing her. Neither 'in Ext.44. nor in the statemetat under section

342 thee was a whispe~ by by respondent no.l of her having squeezed the testicles an~ the pnvatc part of Gulabkhan.

Nothing was stated to give any inkling of her having squeezed the testicles of Gulabkhan

in exercise of her right of private defence to protect her from further

assat. Nor was any evidence adduced in Court to give ay counter versiOn of the occurre.nce. No foundtation was laid to enable the court to ac9uit the. respondents granting them a right of private de fence. • It dJd reqrre a pure conjecture and imagination to hold the respondents not guilty by extendl.lg to them the right of private defence.

. . I~ a situation like this when the prosecution fails tC' explain the .

IDJunes on the person of an accused, depending on the facts of each case, any of the three results. may follow :

( 1) That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence. -

(2) It makes the prosecution version of the occurreiJ, ce

doubtful and the charge (!gainst the accused cannot be held to have been proved beyond reasonable doubt.

(3) It does not affect the prosecution case at all.

D Question is in which category the present case falls?

I•a unhi Ram and others v. Delhi Administration(l) Hegde, J delivering the judgment of this Court has said at page 458 :

"It is true that appellants i1a their statement under section 342 Cr. P.C. had not taken the plea of prvate defence, but necessary basis for that plea had been laid in the cross• examination of the prosecution witnesses as well as by adduc ing defence evide~1ce. It is welhsettled that even if an accused does not plead self-defence, it is open to the Court to consider such a plea if the same arises from the material on record-see In Re-Jogali Bhaige Naiks and another- A.l.R. 1927 Mad. 97. The burden uf establishing that plea is on the accused and that burden can be discarged by showing preponderance of probabilities in favour of that plea on t)le ba:; is of the material on record."

In the instant case not only the plea of private defence was not taken by the respondents in their statement under section 34f but no basis for that plea was laid h1 the cross-examination of the prosecution witneses or by adducing any defence evidence.

In our opinion the burden of establishing tlrat plea was not discharged in any manner by the respondents even applying the test of prepo•.1derance of probabilities in favour of that plea. There is absolutely no material in the records of this case to lead to any such conclusion. We do not think that the Trial Judge was right in assuming that respondent nt). 1 must have received the injuries in the first incident. It may well be that she received the injuries in the second incident.

Since prosecution did not come forward to show in what manner she received these

(1) [1968] (2) S.C.R. 455.

A injuries, assumption can be made to the farthest .etet in. favour. of , the responde11ts that respondent no.l received the mJunes wtth stck, may be at the hands of Gulabkhan or any other person on hts. sde.

But surely the assumption could not be stretched to the. exte?t It as been done by the High Cotirt. The High Court is not nght m saytg th'at by the tripping of the legs Gulabkhan would have fallen on hts B face and t11ot on. his back. A man may fall on back or on face depending upon the side and the angle of the tripping. The other error committed by the High Court is when it says :

"lt appears t0 us to be more probable that while the quarrel was. going on in the Angana of the deceased and the deceased was delivering blows of stick on the accused no. 1, she squeeze.d his testides in order to liberate herself from his attack. It appears that she did so while the deceased was standing and giving blows on her."

The deceased was wearing a pant and it is impossible to imagine that the squeezing of the testicles could be done by respondent no. 1 to the extent of causing his death soon after the squeezing when Gulabkhan was in a standi111g .position. . In 'tflat postion he could have at once moved back and liberated himself.

The extent of squeezing done in this case was possible only if respondent no. I could sit on his legs after he had fallen down at hi~ back. This lends further support to the prosecution s!9ry that respondent no: 2 caught his hands from behind meaning thereby from towards the side of his head, in the front being respondent ~10. 1 on his legs. In our opinion, therefore, there was absolutely no basis or. material in the records of this case to enable the High Court to record an order of acquittal in favour of the respondents by extending them a right of private defence. Even going to the maximum in favour of the respondents that respondent no. I . got the blows with a stick at the hands of Gulabkhan a•11d in the second incident it is manifest that her action of assault on him was a deliberate counterattack to cause him such injury which at least was likely to cause his death. The counter-'att!lck could in no sense be an :...ttack in exercise of the right of private defence.

In material particubrs the evidence of th~ three eye witnesses as also the evidence of dyh1g declaration of the deceased before P .. W . . Gulamnabi is so convincing and natural that no doubt creeps into

it for the failure of the prosecution to explain the injuries on the person of respondent no. 1. The prosecution case is not shaken at all on that account. 11t1 our judgment this is _'3 case which falls in the third category

GUJARAT V. BAI FATIMA (Untwalia, /.) toot

as enumerated above. In agreement with _the Trial Court, we hold that the guilt of both the respondents have been proved beyond any reasonable doubt.

For the reasons stated above, we allow this -appeal, set aside the order of the High Court and restore that of the Trial Omrt as against respondent no. 1 as respects her convictions and sentences and as against respondent no. 2 only in regard to her conviction. It is no use sending the young girl back to jail for a few months. While. maintaining her conviction under section 323/114 of the Pe11al Code, we reduce her sentence to the period already undergone.

P.B.R.

Appeal allowed •.