HARISH KUMAR AND ANR. v.

STATE OF M.P.

JULY 9, 1996

[M.M. PUNCHHI AND SUJATA V. MANOHAR, JJ.]

Oiminal Law :

Penal Code, 1860: Section 97.

P1ivate defence of person-Right of-:-Accused and their father suffered pellet injwies~Accused becoming apprehensive of danger to himself and his family meinbm fired one shot on deceased-Accused look plea of p1ivate

defenc(f-Held : In peculiar facts and circumstances of the case, presence of injwies alone did not probabilise their plea of private defenc(f-Some unjJleasantness had occiured earlier and tlzat nienzbers of coniplainant party started assembling near house of accused-No indiscriminate filing but only one shot fired by accused-In the circumstances of the case, the possibility could not be mled out that the accused becoming apprehensive of danger to himself and his family members chose to be defensive in becoming offensive E without having the requisite intention to cause the murder of any particular person-His act would, therefore, be temied as one in exercise of the right of private defence of person entitling him to acquittal.

Section 307134-<:omplainant sat down and escaped rifle shot injury at the hands of accused-High Court convicted accused on such finding-Held : such a finding was an exaggeration-High Court not justified in convicting accused on such a finding.

Criminal T1ial-Injwy-Whether self inflicted-Detennination of-Held : the situs of a pmticular injwy can not be the sole basis to detennine whether G a fiiendly hand had caused it-Nature of injury too could speak prominently.

Evidence Act, 1872 : Section 32.

Dying declaration fixed accused as author of fatal injury-Held: That by itself can not be a cmroborative factor to establish the murder charge H having regard to plea of self-defence taken by accused. 296

BARISH KR. v. STATE 297

The appellants were convicted under Section 302 read with Section A 34 of the Indian Penal Code, 1860 and sentenced to undergo rigorous imprisonment for life. They were also convicted and sentenced to five years' rigorous imprisonment. Both the sentences \Vere to run concurrently.

According to the prosecution, the parties involved had formed factions, one represented by the complainant and the other by the accused.

The appellants H and Rand their co-accused, who constituted a family by themselves, had their residential house in a lane. On the day of the incident C, of the rival faction, was passing in that lane. N, the father of the appellants H and R, caught hold of the hands of C and told him that he

was indulging in gundagardi (hooliganism) and that he would be set right C by them. Appellants H and R were said to be present there. H was armed with a ri!le and R was armed with a .12 bore gun. Others were empty handed. On being exhorted by N to kill C, H tired his rifle at him even when N was holdong the hands of C. Neither of the two was hurt by the fire as both had sat down instinctively. Freeing his hands from the hands of N, C started running away in the lane when R fired at him from his .12 bore gun. This time also the fire missed. Some pellets of the second fire however hit 4 other persons. This was stated by the prosecution to be the first incident.

Instead of retiring from the tension-ridden place after the first incident members of the rival faction sat at the closeby tea shop. Thereafter, all the five accused came out from their house when H, as before, was having a rifle, R, as before, a .12 bore gun and the remaining three accused armed with kattas. On the exhortation of N, the ap1iellant H allegedly fired a rifle shot towards the victim which hit him on the left side of his chest, whereupon he fell down. The five appellants then escaped from the place of occurrence. This \Vas termed to be the second incident.

The victim in an injured condition was admitted to the government hospital where he died. A dying declaration of the deceased was recorded

by the doctor on duty. A First Information Report was lodged and a G post-mortem was held. The trial court acquitted all the accused. On appeal against ac11uittal the High Court reversed the acquittal of appellants H and R.

In the appeal before this Court, on behalf of appellants Hand Rit was contended that there was only one occurrence in which the complainant H

A party injured the father or the appellants and also caused pellet injuries to the appellants aD<l an apprehension that their house would be put to lire justifying them to employ their weapons in the right or private derence.

Allowing the appeal, this Court

B HELD : 1. The High Court has viewed that the factum or C sitting down and escaping rifle shot injury at the hands or H to be an exaggeration. Yet the High Court convicted H for an offence under Section 307/34 IPC. The High Court was wrong in convicting H after such a finding but right in coming to that conclusion. Thus the account or the first occurrence C has not been placed by the prosecution in a true manner. (306-C-D]

2.1. In the instant case the dying declaration would at best fix the appellant H as the author or the fatal injury, but that by itself is not a

corrorirative factor to establish the murder charge, having regard to the plea taken by H. When the prosecution witnesses say that H is responsible D for the killing or the deceased and the deceased in his dying declaration

states similarly, it only establishes that unless the plea or selfdefence of person and property set up by tlte appellant gets proved on the test of probabilities, the prosecution case shall stand proved provided it stands on its own. So the dying declaration is not the tilting factor as viewed by E the High Court because the same does not by itself walk over the plea of self-defence set up by the appellant. That would have to be viewed on its own merit. (308-C-D]

2.2. The injuries on the father of the appellants are superficial in nature and could not have been the result of a deliberate attack on him.

F The situs of a particular injury is not the sole basis to see whether a friendly

hand could have caused it or not. The nature of injury too can speak prominently. If the father had received injuries at that juncture when the two appellants had also received pellet injuries, then one would have expected the appellants too to have surrendered themselves along with their G father. Their pellet wounds at that time would have been fresh, and the

totality of circumstances could perhaps have given a probable picture in their favour. Here, apparently, the injuries of the father were flung as a defence suggestion on the next day of the occurrence but when that did not ignite the imagination of the investigation, then the arrest of the appellants and their treatment was designedly delayed by viewing something else.

H Therefore, on account of the presence of injuries alone on the accused and

BARISH KR. v. STA1E OFM.P. [PUNCHHI, J.] 299

their father, their plea of private defence in not probabilised. [30~-G-H, A

309-A-B]

3. Some unpleasantness had occurred earlier and therealter some of the members of the complainant party had assembled there and others had started assembling in the lane in which the house of the appellant' lay. As members of a faction, it is difficult to believe that they would have come B there un-armed and less in numbers and be there for no cause, all the more knowing fully well that amongst the appellants were 2 licensed weapon holders. In the circumstances therefore, the possibility cannot be ruled out that H, becoming apprehensive of danger to himself and his family members chose to be defensive in becoming offensive, because of the first inci- C dent, without having the requisite intention to cause the murder of any particular person. He therefore fired but only once and the fire was not repeated. There was nu indiscriminate firing. His act would therefore, be termed as one in exercise of the right of private defence of person entitling him to acquittal. [309-D-FJ

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 572 of 1986.

From the Judgment and Order dated 25.8.86 of the Madhya Pradesh High Court in Crl.A. No. 533 of 1983.

R.L. Kohli and R.CKohli for the Appellants.

U.N. Bachawat, Uma Nath Singh and Amitabh Verma for the Respondent.

The Judgment of the Court was delivered by p

PUNCHHI, J. This appeal under Section 349 of the Code of Criminal Procedure has been preferred by Harish Kumar, Advocate and his brother, Ram Sharan, as of right, as they stand convicted for charges of murder and attempt to murder by the High court of Madhya Pradesh vide order dated 25.8.1986, setting aside the orders of the Court of Session, whereunder the G aforesaid two appellants and three others were acquitted of all the charges.

Now the acquittal of those three others stands maintained whereas the two appellants have been convicted and sentenced as under :

(i) Harish Kumar under Section 302 l.P.C. and Ram Sharan under Section 302/34 l.P.C. for the murder of Virendra Kumar. Both sentenced H

A to life imprisonment.

(ii) Both convicted under Section 307/34 l.P.C: for individually attempting to commit murder of Chakodi, P.W. 5 and sentenced to five years Rigorous lmprison"1ent.

B Both sentences to run concurrently.

The parties involved arc residents of village Madhogarh in the State of Madhya Pradesh. Both the courts below have found that parties have formed factions, one represented by the complainant's side and the other C by the accused. It is the case of the prosecution that at a site some distance from the village, the appellant, Harlsh Kumar, in partnership with one Ram Gulam had taken a contract for transportation of sand and bajri. In the vicinity thereof were agricultural lands of Jagdish Prasad, P.W. 7. It is alleged that on the morning of 10.1.1982 when Jagdish Prasad, P.W. 7 went to his fields, he found that a road had been made by cutting the boundary D line of his field for using it as a passage for trucks. Incidentally, Ram Gulam and Harish Kumar were also there. Jagdish Prasad, P.W. 7 protested to them for the trespass on his land. At that time, both Harish Kumar and Ram Gulam threatened P.W. 7 that if he ever tried to obstruct their trucks from passing on that road, he would be shot dead. It is alleged that the E matter was reported at the police station.

It transpires that the Patwari, on orders from higher officers, made demarcation of the site on 17.1.1982. It emerged that the site where the road was made was owned by one Ramsewak, a nephew of Ram Gulam and that Jagdish Prasad's objection to the user of the road was without any F basis.

In village Madhogarh, there is a busy lane/road running from north to south, touching perpendicularly the highway between the towns of Satna and Rewa. Shortly before reaching the T-junction, there stands erected a G stone gate from where a lane bifurcates at a tanget, touching also the same highway. The appellants and their co-accused, who constitute a family by themselves, have their residential house in that lane, just about in the middle between the stone gate towards south and the crossing towards the north.

H The prosecution case is that at about 4.30 p.m. on 17.1.1982, Chakodi,

HARISHKR. v. STATEOFM.l'. [PUNCHH!, J.) 301

P.W. 5 of the rival faction was passing in that lane. All the five accused A were there. The father of the appellants, Narayan Prasad, acquitted co-accused, caught hold of the hands of Chakodi, P.W. 5, and told him that he was indulging in gundagardi (hooliganism) and that he would be set right by them. Harish Kumar, appellant, was then said to be present and armed with a rifle, and Ram Sharan, appellant too, with a .12 bore gun. Others were empty handed. On being exhorted by Narayan prasad lo Kill Chakodi, P.W. 5, Harish Kumar fired his rifle al him even when Narayan Prasad was holding the hands of Chakodi. Neither of the two was hurt by the fire as both had sat down instinctively. Freeing his hands from the hands of Narayan Prasad, Chakodi started running away in the lane towards the north, when Ram Sharan fired at him from his .12 bore gun.

This time also the fire missed. It is alleged that some pellets of the second fire however hit Manju Soni, Surendra Kumar, Indra, P.W. 3 and Jagdamba Bai, P.W. 4 (the former two were not examined at the trial). This is stated

by the prosecution to be the first incident. Before its actual happening Ganesh Prasad, P.W. 1 was informed by one Ganesh Prasad Garg that D some quarrel was going on in front of the house of Harish Kumar, appdlant. He rushed to the spot along with Narayan Prasad Tiwari, P.W. 11 and both claim to have seen the first occurrence in its entirety from the point when Chakodi's hands were caught by Narayan Prasad, accused till the end.

Instead of retiring from the tension-ridden place after the first incident, Ganesh Prasad, P.W. 1 and Narayan Prasad Tiwari, P.W. 11 both members of the rival faction sat at the close by tea shop of one Ram Sajivan. Other People of the faction such as Ramesh Kumar Gautam, P.W. 2, Chottey Lal Garg, P.W. 13, Virendra Kumar Pandey (deceased) and others were also seen in the lane collected near the stone gate towards the south. Allegedly thereafter, the five accused came out from their house when Harish Kumar, appellant, as before, was having a rifle, Ram Sharan

as before a .12 bore gun and the remaining three accused this time (on which there is some discrepancy) armed with kattas, i.e., country-made pistols. On the exhortation of accused, Narayan Prasad, H"arish Kumar, G appellant, allegedly fired a rifle shot towards Virendra Kumar Pandey which hit him on the left side of his chest, whereupon he fell down. The five appellants then escaped from the place of the occurrence. This is termed to be the second incident.

Ganesh Prasad, P.W. 1 and the aforementioned persons and some H

A others brought Virendra Kumar to the road junction, and putting him in a truck took him to Satna for medical aid. On the way however, Ganesh Prasad, P.W. 1 got down from the truck and lodgeJ the First Information Report at police station Kolgawa at 6 p.m. The investigation was was set in motion.

B Virendra Kumar in an injured condition was admitted in the government hospital at Satna. Thereat Indra, Jagdamba Bai, Manju Soni and Surendra Kumar were also brought for medical aid on account of the pellet injuries received by them. Virendra Kumar was given immediate medical attention by Dr. N.K. Nema, P.W. 14. At 6.35 p.m., when asked in writing C by the concerned police officer whether Virendra Kumar was in a position to make a statement, Dr. Nema replied thereon in the affirmative. That document is Exhibit p. 16. Immediately thereafter, a dyiµg declaration of the deceased Exhibit P. 14 was recorded by Dr. Nema on a single sheet, It is in Hindi and in a question and answer form. When translated, it reads as follows : D Q. 1 : Your name?

Ans. : Virendra.

Q. 2 : Fath,, r's name ?

E Ans. : Sunder Lal.

Q. 3 : Where do you come from ?

Ans. : Madhogarh.

F Q. 4 : How did you receive this injury ?

Ans. : Nil.

Q. 5 : Who hit y1iu ?

G Ans. : Harish Dwivedi hit me.

Narayan Secretary, (meaning Nayan Prasad accused who is also known as Narayan Secretary).

Ram Sharan too.

Satish was carrying 395. (description of a firearm).

Ravi Shankar.

1-IARISl-I KR. v. STATEOFM.P. [PUNCHl-IJ, J.] 303

Ram Sharan was armed wirh 12 (meaning type of the firearm). A

Q. 6 : How did the dispute occur ?

Ans. : He had from the front and hit Me.

Rattan Singh, Sarpanch of village Kripalpur, P.W. J.9 and Narayan . B Prasad Tiwari P.W. 11 respectively signed the dying declaration as witnesses to its recording in their presence by Dr. N.K. Nema, P.W. 14, who too signed the same being the one who had recorded it. The deceased, Virendra Kumar died at 8. 45 p.m. the same day in the hospital.

We do not feel obliged to detail out the steps taken by the police to cover and complete the investigation. Yet it would require to be mentioned that Narayan Prasad, accused, was taken in custody by the police the following day on 18.1.198~. At that time he had some simple injuries on his person which when examined by Dr. R.B. Patel, D.W. 2, three days later

on 21.1.1982, were found to be a bruise on the left chest, a lacerated wound D on the temporal region, some tenderness on the right chest, right thigh and left leg which were opined to be more than 24 hours old. The two appellants were however arrested about four weeks later on 11.2.1982 and were sent for medical examination. Dr. B.B. Bhattacharya, D.W. 1, found one pellet injury on the right leg and another one on the right forearm of E Harish Kumar,· appellant, and one pellet injury on the left leg of Rarr.

Sharan. The stuck up pellets thereafter were removed by medical assistance provided during the investigation.

The appellants when put to trial had to face a swarm of evidence led by the prosecution )Vith regard to both the incidents. When put the F prosecution case, the appellants raised the plea of right of private defence of person and property suggesting that only one incident took place, that the complainant's faction had a grouse against the accused because the decision in the boundary dispute had gone in their favour on the day of the occurrence, which was the reason for the complainant party to have G come in a large number to attack the accused and membe!s of their families and that not only was father, Narayan Prasad hit by members of the complainant party, but kattas in their hands were used too, causing injuries to both the appellants, which compelled them to defend themselves in exercise of the right of private defence of person as well as property as it was apprehended that their house too would be put to fire.

A The Court of Session in dealing with each and every aspect of the matter. in detail, keeping in vi~\V the instances of litigation pr, n<ling and decided between the said factions replete in testimony, came to the conclusion thal the prosecution witnesses were not trustworthy and reliable. It also viewed that the dying dec'laration was not a trustworthy document B because firstly it \Vas vague in content, not conveying any sense, and secondly, the Doctor, had nowhere written on the dying declaration itself, certifying that Virendra Kumar was in a fit position to make a statement.

The statement of Dr. Nema that he had done so vide Exhibit P-16 was not considered reliable. This broadly led to the acquittal of the accused persons. c

On appeal preferred by the State of Madhya Pradesh, a different view was taken by the High Court insofar as the two appellants were concerned. The acquittal of the' remaining three co-accused was however maintained. The High Court took the view that even though the prosecu- D tion witnesses belonged to one faction, their evidence could not be discarded altogether for two reasons, (i) the defence had not denied and had rather admitted the presence of the prosecution witnesses at the time of the occurrence and (ii) their version at best would require a closer scrutiny and not total discardence, Proceeding on that basis, the High Court approved of their evidence in establishing the guilt of the two appellants, E taking corroboration from the dying declaration above-referred to, holding that Dr. Nema, a responsible medical officer was not expected to get in league with the faction of the prosecution witnesses and that he is expected to have performed his duties in a responsible manner, having regard to the situation then existing. The High Court further took the view that insofar F as Virendra Kumar was concerned, he had specifically named Harish Kumar, appellant, to be the one who had fired at him, which established the charges of murder. This is how the conviction of the appellants has come to be recorded.

Learned counsel for the appellants stressed before us that there was G only one occurrence, cause of which was the favourable demarcation of land by the Patwar~ which angered the complainant party and hence hooliganism was indulged into by them, to the point of hurting Narayan Prasad the father of the appellants, by inflicting on him four injuries and by using their country-made pistols (Kattas) in causing pellet injuries to the H two appellants and an apprehension that their house would be put to fire,

HARISI-IKR. v. STATEOFM.P. [PUNCHJ-11, J.] 305

justifying them to employ their weapons in the right of private defence. In A the alternative, it was urged that it could at best be said that the right of private defence, had been exceeded.

We have carefully gone through the evidence led by the parties and have also taken into account the arguments addressed by respective counsel. We would, to begin with, go with the prosecution (though not positively holding so) that there were two occurrences. To recount, Ganesh Prasad Shanna, P.W. l was informed by Ganesh Prasad Garg (not examined by the prosecution) that there was some quarrel going on near the house of Harish Kumar, appellant. Then, he and Narayan Prasad Tiwari, P.W. 11 and Naresh Garg (not examined) went to the place where the quarrel was going ou. Both were able to sec Narayan Prasad, accused, holding both the hands of Chakodi, P.W. 5, leading him to some distance, telling him that

he was indulging in hooliganism and that they would deal with him. At that tin1e, Harish I<umar, appellant, \Vas having a .315 bore gun (someti1nc described as rifle in the prosecution evidence), Rain Sharan was having a D .12 bore gun an<l the remaining three, i.e ... Narayan Prasad, Salish and Ravi Shankar were empty handed. While, Narayan Prasad was holding the hands of Chakodi, he exhorted his co-accused to kill Chakodi by firing. Harish Kumar, appellant, is said to have fired from his rifle al Chakodi instantaneously with the intention to kill him. At that moment, both Chakodi, P.W. 5 and Narayan Prasad, accused, are said to have sat <l.own and saved themselves, It appears to us that this conduct of Harish Kumar, appellant, E

in abruptly firing at Chakodi, P.W. 5, without caring for the safety of his father is a conduct which docs not stand the test of reason; all the more when no injury on Chakodi, P.W. 5 or Narayan Prasad was resulted. It is further alleged that having sat on the ground and thereby saving himself, F he extricated himself and ran away whercafter Ram Sharan fired from his .12 bore gun towards him. This time also he \Vas not injured. Sile Plan, Exhibit P. 26, prepared by the Patwari, P.W. 16, goes to show that the persons who were hit by the pellets of the second shot were present in the northern portion of the lane from which it could safely be inferred that Chakodi had run, if at all, towards the northern side so as to attract a fire G being made in that direction. No\v, \Vhen, we advert to the evidence of Ramesh Kumar Gautam, P .W. 2, he says that on hearing of a shouting "killed" "killed", made by Chakodi, P.W. 5, the latter on the asking of the former had told him that the two appellants had fired at him in the manner above-stated. P.W. 2, further says that when Chakodi P.W. 5, ran away H

A towards his house, then he, Vircndra Kumar deceased and Chottey Lal Garg came and sat near the old stone gate wherefrom they saw the accused coming fully armed, i.e., both the appellants in the manner afore-stated and the other three accused with kattas. This would mean that when Chakcdi

is supposed to have run away towards the north, P.W. 2 and his companions including the deceased had walked from the northern side down the lane and to have assembled at the stone gate after passing in front of the house of the accused. In this interval, the three acquitted accused are suggested to have armed themselves with kattas. The need to arm themselves could only be felt if they were anticipating further trouble at the hands of the complainant's faction in the form of a second occurrence in a higger way.

C The High Court has viewed that the factum of Chakodi sitting down and escaping rifle shot injury at the hands of Harish Kumar, appellant, to be an exaggeration. Yet the High Court convicted Harish Kumar for offence under Section 307/34 !PC. It appears to us that the High Court was wrong in convicting Harish Kumar, appellant after such funding but right in D coming to that conclusion, but we would not stop at that and go further to hold that the account of the first occurrence has not been placed by the prosecution before the court in a true tnanner; more so on account of the statements of Indra P.W. 3, Jagdamba Bai, P.W. 4, Chakodi, P.W. 5 and Sumitra Nandan P.W. 6, father of Indra, P.W. 3.

No\v, according to Indra, P.W. 3, she \Vas in the lane in order to go to boy some bangles and when she got near the crossing (meaning towards the north) she heard a shot fired at Chakodi P.W. 5 whercafter she entered in somebody's house. She claims to have been hurt by the pellets of the second shot made by Ram Sharan, when she was peeping to sec things happening. Otherwise she states she never come out of the house in which she had taken refuge. As it appears to us her statement is unnatural docs not inspire confidence, because if she had entered a house, it is difficult to conceive as to ho\v coukl she have received a pellet injury on her neck while peeping, unless she had exposed that portion of her body for the pellet to hit her, which was next to impossible while peeping. Her word in G that regard of having seen the appellants first is thus not reliable. Similarly,

P.W. 4, jagdamba Bai, could not say as to who had fired the shot. She was declared hostile. On cross-examination by the public prosecutor, she disclosed that being weak of eye sight and having become scared, she did not see the shot being fired and by whom. Her evidence too in that regard is H of no use to the prosecution. Insofar as P.W. 5 Chakodi is concerned, when

I!ARISH KR. v. STAlloOFM.P. [PUNCHHl, J.J 307

he had taken to heels after the fire of Harish Kumar which firing we view A with suspicion, he has no basis to claim lhal he could see Ram Sharan firing the second shot al his back. Sumitra Nandan Garg, P.W. 6, the father of Indra, P.\V. 2, clairr.s to be present in the lane when Ram Sharan appellant came before him at a distance of 10 or 15 yards with a .12 bore gun. The witness claimed that he shouted at Ram Sharan not to fire at him, but all the same Ram Sharan did lire at him. He claimed that he bent down a little lo avoid the fire. While so, a boy told him that his daughter had been injured by a gun shot. Now, he would have us believe that a separate gun shot was fired at him. This is not possible otherwise we find he is connected

with Chakodi, P.\V., as a brother in relationship being a collateral and thus interested. Such evidence therefore docs nol inspire confidence to accept C the veracity of the first occurrence and to n1aintain conviction on such accu:; ation against Rain Sharan, on the unreliable \Vord of Chako<li, P.W. 5, Sumitra Nandan Garg, P.\V. G. lndrawati, P.W. 3 and Jagdamba Bai, P.\V. 4. Their evidence being unacceptable and untrustworthy on the charge of murderous assault on Chakodi, would entitle Ram Sharan appcl- D lant acquittal for offence under Section 307/34 IPC and sequclly would Harish Kun1ar appellant too deserve acquittal for offence under Section 307/34 !PC. On recording such verdict of acquittal of both the appellants for offence under Seclin 307/34 !PC, Ram Sharan appellant, also would be entitled to acquittal under Section 302/34 IPC on account of the murder of Virendra Kumar for the same reasoning as has been adopted by the E High Court to maintain the acquittal of the other three accused, since he too had not done any overt act towards committing the murder of Viren<ler Kumar. \Ve therefore order acquittal of Ram Sharan of all the charges.

No\V con1ing to the second occurrence, the sole accused \vho caused F the sole injury to the deceased was Harish Kumar, appellant. On his behalf capital was made as to the injuries on the person of his father, on himself and his brother Ram Sharan to countermand and contend that he had a right of private defence of person as well as property. The High Court has leaned sufficiently on the dying declaration as the corroborative material to the factional nature of the prosecution evidence. We need not emphasize G herein the value of a dying declaration, which is well understood and well appreciated in legal annals. Here, the deceased, according to Dr. Ncma, \vhcn giving the <lying <leclaration \Vas surrounded by very many people and police personnel. Dr. Nema had asked the policcn1cn to remove the cro\vd, but the policemen were unable to do so. The crowd kept present in the H

A room when he went near the deceased to record his statement. According to him, when he was talking to the deceased, those persons kept talking to Virendra Kumar loo and lo each other. Dr. Nema frankly admitted that earlier to the instant case he never had an opportunity to record a dying declaration of any patient. Before recording the dying declaration however, B he had given to the patient sometimes earlier, a Himosil Morphia injection.

The effect of the same necessarily would have brought the patient to some stupor. In spite of his delicate condition nd grave surroundings, he was able to say categorically to Dr. Nema that it was Harish Kumar, who had hit him fatally. The dying declaration therefore would at best fix the appellant, Harish Kumar, as the author of the fatal injury, but that by itself C is not a corroborative factor to establish the murder charge, having regard to the plea taken by Harish Kumar. When the prosecution witnesses say that Harish Kumar, appellant, is responsible for the killing of the deceased and the deceased in his dying declaration stales similarly, that only establishes that unless the pica o(sclf-defence of person and property set up by D the appellant gels proved on the lcsl of probabilities, the prosecution case shall stand proved provided it stands on its own. So the dying declaration is not the tilting factor as viewed by the High Court because the same does not by itself walk over the plea of self-defence set up by the appellant, Harish Kumar. That would have to be viewed on its.own merit.

E The injuries on Narayan Prasad, were simple in nature. The prosecu; tion has not owned them. The High Court has opined that these could have been caused because of a fall or striking against a hard or pointed substance. The fact remains that these injuries were found on the person of Narayan Prasad \Vhen arrested a day later than the occurrence. He \Vas F medically examined late though, after three days. Beside it is contended that the pellet injuries received by the appellant as well as by Ram Sharan, co-accused, \Vere the result of the assault n1ountcd on them because many men1bers of the con1plainant party had carried and used kattas. Our vic\v v.'ith regard to these two suggestions on careful consideration is that the injuries on the father arc superficial in nature and could not have been the G result of a deliberate attack on him. The situs of a particular injury is not the sole basis to see whether a friendly hand could have caused it or not.

The nature of injury too can speak prominently. If the father had received injuries at that juncture when the two appellants had also received pellet injuries, then we would have expected had the appellants too lo have H surrendered themselves along with their father. Their pellet wounds at that

HARISHKR. v. STATE OFM.P. [PUNCHHl, J.] 309

time would have been fresh, and the totality of circumstances could perhaps have given a probable picture in their favour. Here, apparently, the injuries of the father were flung as a defence suggestion on the next day of the occurrence but when that did not ignite the imagination of the investigation, then the arrest of the appellants and their treatment was designedly delayed by viewing something else. Thus, on account of the presence of injuries alone on Narayan Prasad, Harish Kumar and Ram Sharan, accused, we are not prepared to probabilise their defence in these peculiar facts and circumstances.

That is not however the end of the road. We have recorded our view with regard to the first occurrence. We may add lo those that some incident C between the parties definitely happened but we stand deprived of a truthful account of the same. So fit,'llrativcly there was a first occurrence which led to the second one. Some unpleasantness had occurred earlier wherefor some of the members of the complainant party had kept being there and others had started assembling in the lane in which the house of the D appellants lay. As members of a faction, it is difficult to believe that they would have come there un-armed and less in nun1bers and be there for no cause, all the more knowing fully well that amongst the appellants were 2 licensed weapon holders. It is alleged by the prosecution that it was Harish Kumar, accompanied by his companions, who first stepped forward towards the complainant party, present near the stone gate. Here then was E direct confrontation. In the circumstances therefore, the possibility cannot be ruled out that Harish Kumar, becoming apprehensive of danger to himself and his family members chose to be defensive in becoming offensive, because of the first incident; without having the requisite intention to cause the murder of any particular person. He therefore fired but only once . F and the fire was not repeated. There was no indiscriminate firing. His act

\VOuld therefore 1 be termed as one in exercise of the right of private defence of person entitling J:iim to acquittal. It is so ordered.

As a result, the appeal of both the appellants is allowed. They are acquitted of all the charges. The judgment and order of the High Court is G set aside and the order of the Court of Session is restored.

v.s.s.

Appeal allowed.