BHUPENDRASINH A. CHUDASAMA

STATE OF GUJARAT

NOVEMBER 4, 1997

[M.K. MUKHERJEE AND K.T. THOMAS, JJ.]

Penal Code 1860-Sections 302, 97 and 103- Murder- Armed Constable- Shot dead his superior-Defence that on suspicion as miscreant, C he fired in discharge of his official duties-Trial Court acquitted him giving him benefit of doubt-High Court convicted and sentenced the accused-On appeal, held not entitled to acquittal on the ground that the accused was discharging his official duties-Cannot claim right of private defence- Conviction and sentence confirmed.

D The appellant was prosecuted for an offence under Section 302 Indian

Penal Code. The case of the prosecution, was that appellant, an armed Constable of Special Reserve Police shot at his immediate superior, a Head Constable, while the latter was walking around Khampla Dam Site. Some skirmishes developed and deceased had taken the appellant to task for failure in discharging his official duties. The appellant who was of a truculent temperament was looking for a suitable opportunity to retaliate. On the evening of the fateful day, he saw the deceased walking near the Dam, aimed his rifle and pumped four bullets into his vital parts which caused his end immediately. Post-mortem examination revealed that death of deceased was

/ due to firing of bullets from a firearm. The appellant while owning the act F of firing took the defence that he was doing patrolling duty, saw a flame near the tower and saw some body was moving. He suspected some miscreant was to commit mischief and thus fired in discharge of his duties.

The Trial Court acquitted the appellant on the ground that the defence version was quite probable and appellant was entitled to benefit of doubt. On G appeal, the High Court reversed the acquittal and appellant was sentenced to imprisonment for life. Hence the present appeal.

The contention of the appellant was that since he was discharging his official duties he was entitled to acquittal; and that he was also entitled to right of private defence under Section 103 of IPC.

H 4

B.A. CHUDASAMA v. STATE OF GUJARAT 5

Dismissing the appeal, this Court A

HELD : l. The appellant is not entitled to acquittal on the ground that he was discharging his official duties. No person can claim immunity from culpable homicide merely on the ground that he killed another person in discharge of his official duties unless such killing would fall within the ambit of any of the exceptions enumerated in Chapter IV oflPC. The primordial B requirement of the said exception is that the act which killed the other person should have been done "with proper care and caution". The very fact that accused shot his own colleague at close range without knowing the identity of his target smacks of utter dearth of any care and caution. The appellant did not even remotely entertain the idea of putting forward a plea C that his act of killing the deceased was done by accident or misfortune, leave apart the other ingredients necessary to form the right under the said exception. 18-F-H; 9-A-BI

2.1. The appellant cannot claim the right of private defence envisaged under Section 103 of Indian Penal Code. The right of private defence would D commence when a reasonable apprehension of danger to property commences and such right can extend to killing another person even if there was only an attempt to commit any of the offences mentioned in the section. Such right would be available to a public servant if the property sought to be protected is a public property. But there is a condition for claiming such an extended E right if the property sought to be protected is a building. It should be a building used for human dwelling or for custody of property. If it is not a building of that type the person exercising right of private defence cannot go to the_ farthest extent of killing another person unless the threatened mischief has caused a reasonable apprehension that death or grievous hurt would otherwise be the consequence. In the instant case there was no plea at all that appellant had any apprehension of death or grievous hurt. Nor is there a case that the tower (which he feared to have been under threat of incineration) was either used for human dwelling or custody of property.

Hence, there is no question of countenancing the extended right of private defence envisaged in Section 103. 19-E-H; 10-A-BI

2.2. Appellant put forward a case for right of private defence only when he was examined by the trial court under Section 313 Cr. P.C. High Court has noted that he has not disclosed to any of the prosecution witnesses that he was unable to identify his.immediate superior and thought him to be

a miscreant. On the other hand, PW-12 (another SRP personnel who was H

A also on duty) has deposed that he saw the appellant scampering away from the scene of occurrence and that when he was confronted he blurted out that he was proceeding to surrender himself since he had fired at the' deceased.

To none the appellant said that he fired the rifle for protecting the tower. To none he disclosed that he first had a glimpse of flame which he thought to B be the movement of a miscreant. In fact when the dead body and the surroundings were closely examined by the police they did not come across any material which could have given any mistaken impression to the appellant as flame of a torch. Thus, the belated claim of right of private defence was far from the contemplation of the appellant when he opened fire at the deceased. (10-G-H; 11-A-B( c

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 567 of 1997.

From the Judgment and Order dated 21/22.1.97 of the Gujarat High Court in Cr!. A. No. 168of1985.

Yashank Adhyaru and Manoj Wad, for Ms. J.S. Wad for the Appellant.

Ms. H. Wahi and Ms. Neithono Rhetso for the Respondent.

The Judgment of the Court was delivered by

THOMAS, J. One armed constable of Special Reserved Police (SRP) shot at his immediate superior (Head Constable) while the latter was perambulating around Khampla Dam site (in Gujarat State) during dusk hours of a cloudy day in July 1983. The victim died on the spot. Appellant was F charged and tried for murder, but the trial judge entertained doubt about his complicity and acquitted him. However, a Division Bench of the High Court of Gujarat, while re-appraising the whole evidence on an appeal filed by the State, felt no speck of doubt that it was a cold-blooded murder perpetrated by the appellant. Accordingly, the acquittal was reversed and the appellant was sentenced to imprisonment for life. Appellant thus became entitled to file G his appeal, as of right, under Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.

The victim of the gun shot was Ukadbhai Radvabhai, Head Constable ofS.R.P. who was posted along with other police personnel at Khampla Dam site which was then in danger on account of heavy rainfall. Appellant was H allotted to the same platoon and was placed below the deceased. Some

,_,.

skirmishes developed and deceased had taken the appellant to task on the A ground of dereliction in the discharge of the work allotted to him.

Prosecution case is that appellant was of a truculent temperament and as he did not lightly take the diatribe hurled against him by the deceased he was groping for a suitable opportunity to retaliate. On the evening of 2. 7.1983 he noted the appellant walking near the tower of the Dam. He aimed his rifle B at the deceased and pumped four bullets into his vital parts which caused his end in a trice.

Post-mortem examination of the dead body revealed, inter a/ia, one fire arm wound on the back of the right shoulder with blackening of the skin and its exit wound was on the left axilla with a big hollow cavity through which C lung tissues protruded; another entry wound on the right scapula, its exit wound on the 5th vertebra with tearing of skin and muscle over an area of 3" x 3" another entry wound below the left glutted fold with blackening of the skin and its exit was on the upper gluteal fold. There was no dispute that death of deceased was due to piercing of bullets from a firearm.

In this case appellant did own the act of firing the rifle. He adopted the following defence which he submitted in writing before the trial court when he was examined under Section 313 of the Code of Criminal Procedure, the material portions of which are extracted below:

E "I was doing patrolling duty with the service rifle, and at about 7.45 P.M. when it was absolute dark I came near the bridge for proceeding towards the valve tower. Then I saw a flame near the tower and saw somebody moving. I suspected that some miscreant was about to commit mischief with fire on the ".alve tower. As I could not identify the moving person due to want of light I shouted at him to stop. But F there was no reply. So I proceeded further and repeated the shout, and still there was no reply. I had to open fire in discharge of my duties.

I fired first in the open air and then fired two more rounds. I heard the sound of something falling down. I then reported the incident to the persons who were in the office. When constable Laxmansinh G (PW-2) and Jayantrajsinh (PW-3) arrived after seeing the body of the victim they informed me that it was Ukadbhai Radvabhai who received bullet injuries."

Trial court felt that the defence version is quite probable and hence he is entitled to the benefit of doubt. High Court found that the trial court went H

A perversely wrong in entertaining such a doubt on the facts of the case. High

Court took particular note of certain circumstances which showed that appellant was nurturing grouse against the deceased.

Ext., B-15 is a report prepared by the deceased containing a complaint that appellant committed acts of dereliction of duties and that when appellant B was warned about it he hurled invectives against the deceased and left the work place in a huff. Deceased expressed his apprehension, in Ext. B-15, that appellant might do something in revenge and so he made a request to his platoon commander to shift the appellant to some other section.

PW-3 Jayantrajsinh - a colleague of both deceased and appellant - C narrated the incident which ensued exchange of words between appellant and deceased. The witness also said that when he knew about Ext. P-15 report he snatched it from the deceased and prevailed upon him to desist from forwarding it to the superiors, but later when he heard that the appellant was fuming with acerbity towards the deceased he returned Ext. P-15 to him. One most important D circumstance is, Ext. P-15 report was collected by the police from the bag of the deceased after his death. There is no dispute regarding the authorship of that report.

The evidence in this case, in the light of the admissions made by the appellant, has narrowed down to the following points. Appellant had fired his E rifle and the deceased who was on his duty, sustained the bullet injuries and died. As the High Court observed, it would have been a close range firing.

This could be inferred from the blackening of the skin around two entry wounds.

Learned counsel for the appellant first contended that since appellant p was discharging his official duties he is entitled to acquittal. No person can claim immunity from culpable homicide merely on the ground that he killed another person in discharge of his official duties unless such killing would' fall within the ambit of any of the exceptions enumerated in Chapter IV of the !PC. Pitted against the said legal position learned counsel made an endeavour to bring it within the scope of Section 80 of lPC which reads thus: G

"Nothing is an offence which is done by accident or misfortune, and without any criminal intention of knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution."

H The primordial requirement of the said exception is that the act which killed

the other person should have been done "with proper care and caution". The A very fact that accused shot his o"'.n colleague at close range without knowing the identity of his target, smacks of utter dearth of any care and caution- It appears to us that appellant did not even remotely entertain the idea of putting forward a plea that his act of killing the deceased was done by accident or misfortune, leave apart the other ingredients necessary to form the B right under the said exception. Argument on that score, therefore, deserves rejection outright at the threshold.

Learned counsel, alternatively, contended that the act of appellant can be justified under Section I 03 of the Penal Code. That section protects a person who voluntarily caused death of another person in exercise of the C right of private defence of property "if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, will be an offence of any of the descriptions hereinafter enumerated, namely:-

First-Robbery:

Secondly - Housebreaking by night;

Thirdly - Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling or as a place for custody of property;

Fourthly - Theft, mischief or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.

No doubt, right of private defence would commence when a reasonable apprehension of danger to property commences and such right can extend to F the killing another person even if there was only an attempt to commit any of the offences mentioned in the section. The right subsumed in the section is an expansion of the basic right of private defence founded in Section 97.

When the two sections are telescoped with each other the right of private defence can be stretched up to the extent of killing another person in defending G the property of not only his own but even of another person. Such right would be available to a public servant if the property sought to be protected is a public property. But there is a condition for claiming such an extended right if the property sought to be protected is a building. It should be a building used for human dwelling or for custody of property. If it is not a building of that type the person exercising right of private defence cannot go H

A to the farthest extent of killing another person unless the threatened mischief has caused . a reasonable apprehension that death or grievous hurt would otherwise be the consequence.

Jn this case there was no plea at all that appellant had any apprehension of death or grievous hurt. Nor is there a case that the tower (which he feared B to have been under threat of incineration) was either used for human dwelling or custody of property. Hence, there is no question of countenancing the extended right of private defence envisaged in Section 103.

Nonetheless, if the building was not for the above use and even if C appellant had no apprehension of death or grievous hurt, still a restricted right of private defence can be claimed by a person which is adumbrated in Section 104 of !PC:

"If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, D mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in Section 199, to the voluntary causing to the wrong-doer of any harm other than death."

E Now, the question is whether appellant is entitled to the aforesaid

restricted right of private defence of property.

The accused who pleads any of the exceptions under Chapter IV has to prove it since law has cast the burden on him in such situation. Under Section 106 of the Evidence Act the court will presume the absence of it. Of course, the standard of such proof is not akin to that of the prosecution to prove the guilt of the accused. It is trite law that such burden can be discharged by the accused showing a preponderance of probabilities.

Appellant put forward a case for right of private defence only when he G was examined by the trial court under Section 313 of the Code. High Court

has noted that he has not disclosed to any of the prosecution witnesses that he was unable to identify his immediate superior and thought him to be a miscreant and observed that "no such question with regard to the mistaken identity was put to any other prosecution witnesses during the crossexamination." On the other hand, PW-12 (another SRP Personnel who was H also on duty) has deposed that he saw the appellant scampering away from

the scene of occurrence and that when he was confronted he blurted out that A he was proceeding to surrender himself since he had fired at the deceased.

To none the appellant said that he fired the rifle for protecting the tower. To none he disclosed that he first had a glimpse of flame which he thought to be the movement of a miscreant. In fact when the dead body and the surroundings were closely' examined by the Police they did not come across any material which could have given any mistaken impression to the appellant B as flame of a torch. Thus, the belated claim of right of private defl'.nce was far from the contemplation of the appellant when he opened the fire at the deceased.

In the light of the aforesaid discussion there in no scope to conclude C that appellant had any right of private defence to property. Accordingly, we confirm the conviction and sentence and dismiss the appeal.

S.V.K.I.

Appeal dismissed.