[2008] 13 S.C.R. 1027

-;)

BIHARI RAI A

STATE OF BIHAR (NOW JHARKHAND)

(Criminal Appeal No. 1536 of 2008)

SEPTEMBER 26, 2008

[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM

SHARMA, JJ.]

Penal Code, 1860 :

ss. 304 (Part !), s. 300 Exception 4 - Death caused - By c

three accused - Eye-witnesses to the incident - Motive attributed - Conviction by trial Court uls 302134 /PC - High Court altering the conviction of one accused u/s 304 (Part I) and acquitting the co-accused - On appeal by convicted accused, .__.

Held: In the facts of the case, conviction u/s 304 (Part I) car- D reef - Non-examination of one of the Investigating Officers, non-mention of names of other eye-witnesses by the informanteye-witness and non-production of Station Diary Entry before court not fatal for prosecution in the facts of the case - Claim of right of private defence also not proved.

ss. 96 to 98 and 100 to 106 - Right to private defence - Exercise of - When - Discussed.

Appellant-accused alongwith two co-accused were

---1 prosecuted for causing death of one person. Prosecu- F tion case was that the accused assaulted the deceased.

PW-1 on hearing the noise, when came near the place of occurrence, saw the accused assaulting his father. PWs 2, 5, 6 and 7 were other eye-witnesses to the occurrence.

Motive for the incident was said to be long standing dis- G pute between the parties. Trial court, placing reliance on the evidence of eye-witnesses held all the three accused

--./. guilty of offence u/s 302/34 IPC. High Court altered the conviction of appellant-accused to one u/s 304 Part I find-

1027 H

A ing that the case fell u/s. 300 Exception 4. The two coaccused were acquitted.

In appeal, the appellant-accused contended that conviction was not called for in view of the facts that in Fardbeyan, PW-1 did not mention the names of PWs 2, 6, 8 and 7; that the assault was done in private defence; that one of the Investigating Officers was not examined; and that first information regarding the incident which was recorded in the station entry was not produced in the c Court.

Dismissing the appeal, the Court

HELD: 1. The accused has been rightly convicted u/ s. 304(Part I) IPC. Non-examination of one of the lnvesti gating Officers, does not in any way corrode the credibil D ity of the prosecution version. Non-mention of the names of PWs 2, 6 and 7 by P.W. 1 is also not fatal. He on hearing the cries of his father (the deceased) was rushing towards the place of occurrence. Obviously, the focus was on what was happening to his father. In any event, inspite of inci E sive cross-examination nothing fragile was surfaced in his evidence. It has also been established by prosecution that the Station Diary Entry related to some vague information about disturbance in the village, cannot take place of the FIR. [Paras 10, 11, 12 and 19) [1037, B; 1034, D-G) F 2.1 The right of private defence as claimed by the ac cused persons have been rightly discarded. Merely be cause there was a quarrel and some of the accused persons sustained injuries, that does not confer a right of private defence extending to the extent of causing death G as in this case. Though such right cannot be weighed in

golden scales, it has to be established that the accused persons were under such grave apprehension about the safety of their life and property that retaliation to the extent done, was absolutely necessary. No evidence much H less cogent and credible was adduced in this regard. The

BIHARI RAI v. STATE OF BIHAR 1029 ~

(NOW JHARKHAND)

High Court has referred to the evidence of PWs. 2, 6 and A 7 to conclude that just before the arrival of PW 1 at the scene of occurrence, there was a quarrel between the deceased and the accused. In that view of the matter, the High

' Court accepted the plea that the occurrence took place in __ _,,

the course of sudden quarrel. [Para 16,17] [1036, E, H] B 2.2 The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as an universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had c caused injuries in exercise of the right of private defence.

The defence has to further establish that the injurtes so caused on the accused probabilises the version of the right of private defence. Non-explanation of the injuries

~ sustained by the accused at about the time of occurrence D or in the course of altercation is a very important circum- . stance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so indepen- E dent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. [Para-

13) [1034, G-H; 1031, A-C]

'~ Lakshmi Singh v. State of Bihar AIR 1976 SC 2263 - F referred to.

2.3 A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is G not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether ...... the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. [Para 13] [1035, C-D] [1035, C-O]

A 2.4 The plea of right of private defence comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal tres-

~- B pass, and attempts at such offences in relation to property. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be c caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. [Para 13] [1035, E; 1035, G-H]

2.5 The right commences, as soon as a reasonable apprehension of danger to the body arises from an at- D tempt, or threat to commit the offence, although the of- +-

fence may not have been committed but not until that there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. [Para 14] [1036, A-B] E Jai Dev v. State of Punjab AIR 1963 SC 612; Rizan and Anr. vs. State of Chhattisgarh, through the Chief Secretary,

Govt. of Chhattisgarh, Raipur, Chhattisgarh 2003 (2) SCC 661; Sucha Singh and Anr. v. State of Punjab 2003 (7) SCC 643 - relied on. r-.

F Case Law Reference

AIR 1976 SC 2263 Referred to.

Para 13

AIR 1963 SC 612 Relied on.

Para 14

G 2003 (2) sec 661 Relied on.

Para 15

2003 (7) sec 643 Relied on.

Para 15

......

CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 1536 of 2008

From the final Judgment and Order dated 25/1/2006 of A the High Court of Jharkhand at Ranchi in Crl. Appeal No. 51 of 1988 p

Varinder Kumar Sharma for the Appellant.

_..J, Anil Kr. Jha for the Respondent.

The Judgment of the Court was delivered by

i DR. ARIJIT PASAYAT, J. 1. Leav!3 granted.

2. Challenge in this appeal is to the judgment of a Division c Bench of the Jharktiand High Court partially allowing the appeal of the appellant, while directing acquittal of co-accused persons. The appellant was convicted for an offence punishable under Section 302 read with Section 34 of the Indian Pe" nal Code, 1860 (in short 'IPC') by learned Vth Additional Ses-

• -;1sions Judge, Dumka, in Sessions Case No.156of1980/21 of D

1985. The High Court altered it to Section 304 Part I IPC, and

<C sentence of seven years was imposed.

' 3. The prosecution version in a nutshell i$ as follows: '! -< i Ramfali Rai (PW.1) is the son of Sadri Rai (hereinafter E referred to as the 'deceased'). There was a long standing dis-

-< pute pending between the appellant's and the deceased's fam- • ily. Proceedings were initiated under Section 145 of the Code ..i

of Criminal Procedure, 1973 (in short 'Cr.P.C.') and several suits

~ were also filed. The dispute between the two families was pend- F ing from tbe year 1952 and according to the prosecution, it is said to be the motive for the unfortunate occurrence.

On 28.6.1978, the deceased left for his field accompanied by his servant Mantu Rai. Ramfali Rai (PW.1) stayed at home and at about 9.00 a.m., he heard shouts, "Maro Maro" G and came out of the house and started running towards the north ., from where the shouts were emanating. Reaching some dis- __,_

tance, he found his father, Sadri Rai, being chased by the accused-appellant Bihari Rai and the other two accused. Tulsi Rai and Ghutru Rai, were also found at that place. Accused Bihari H

A Rai, inflicted three blows - two on the head and one on the hand of the deceased-Sadri Rai, and the deceased fell down and the accused 2 and 3 also gave lathi blows and thereafter - all the three accused left the place. The occurrence was witnessed by Ramfali Rai (PW.1), Horii Rai (PW.2}, Kuwa Rai B (PW.5), Gopi Rai (PW.6) and Jarman Rai (PW. 7). In the mean- ~- time, information was received at Jama Police Station by Sudhir Kumar Sinha, Sub-Inspector, that some occurrence had taken placei in the village - Barudih. The said Sub-Inspector, after making an entry in the station diary, left for the scene of occurc rence and reached there, where the fardbeyan, Ext. 5, given by PW.1, was recorded at 3.00 p.m. The said fardbeyan was registered as a complaint and the printed first information report of the said complaint is Ext.6. Ext.1 is the signature of Ramfali Rai (PW.1) in the said complaint, Ext.5. Investigation was taken

D up and the inquest was conducted, which stands marked as Ext.2/2, during which witnesses were examined. After the inquest, the body was sent to the hospital with a request to the Doctor to conduct autopsy. Dr. Upendra Prasaad Sinha (PW.9), Civil Assistant Surgeon, Sadar Hospital, Dumka, conducted

E post-mortem on the body of the deceased, Badri Rai, and he found the following injuries:

(i) Incised wound 1" x Y2" x 1" on outer side of left arm;

(ii) Incised wound 8" x 1" x 4" cutting the posterior left

F side of the scalp bone including the brain substance with a large haemorrhage (in the post mortem report 1the expression "haematoma" and not haemorrhage as has been deposed by the Doctor inside the brain substance;

(iii) Incised wound 6" x 1" x 31/2" cutting the posterior right side of the scalp bone including the brain substance with a large haemorrhage (here also the expression in the post mortem report is haematoma) inside the brain substance;

H The doctor issued the post mortem certificate, Ext. 4, with

BIHARI RAJ v. STATE OF BIHAR 1033

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(NOW JHARKHAND) [DR. ARIJIT PASAYAT, J.]

his opinion that injuries (ii) and (iii) found on the body are suffi- A cient in the ordinary course of nature to cause death and that death must have occurred within 36 hours.

4. After completion of investigation, the eharge sheet was filed against the accused persons.

B -·-'

5. The Trial Court placed reliance on the evidence of the eye-witnesses PWs. 1, 2, 5, 6 andr 7 and found the appellant and the co-accused persons guilty. In appeal, the High Court '1 found that Exception 4 to Section 300 IPC applied and accordingly directed conviction of the appellant in terms of Section c 304 Part-I IPC and sentenced him to undergo rigorous imprisonment for seven years. However, the co-accused persons were acquitted. In appeal before the High Court, the primary stand was that in the fardbeyan given by PW.1 the names of PWs. 2, 6 and 7 had not been given. Additionally, it was submitted that D -~ having accepted that the occurrence took place in course of sudden quarrel, the trial Court should have accepted the plea relating to right of private defence.

6. In the judgment the accused persons were described as A 1, A2 and A3. The present appeal is by A 1.

7. The High Court found that the evidence of PW.1 was to the effect that on hearing the cries of his father he came out of the house, ran towards the place and found the appellant inflict-

' -----'::

ing injuries on the deceased. It was therefore, possible that he could not have noticed the presence of PWs.2,6 and 7. How- F

ever PW 6 has categorically stated about the presence of all the eye witnesses. So far as the plea relating to right of private defence is concerned, it is to be noted that no evidence in that regard was adduced. On the contrary, the High Court referred to the evidence of PWs. 2,6 and 7 to the effect that just before G the occurrence the accused and the first deceased had quarreled and thereafter first accused inflicted blows with an axe, ...... which he had in his hand, on the deceased. PW 1 was not present when the quarrel commenced and he came to the scene of occurrence on hearing the cries of his father and saw the H

>.. -

A appellant inflicting blows on the deceased. In that background Exception 4 to Section 300 was applied.

8. In support of the appeal, the stands taken before the High Court have been reiterated by learned counsel for the appellant. Learned counsel for the state on the other hand supported the judgment of the High Court. ... .

9. It needs to be noted that in addition to the stand taken before the High Court learned counsel for the appellant submitted that the 1.0. had not been examined in the preseflt case and t c first information regarding the incident which was recorded ii)

the station entry has also not been produced in the Court. It is also pleaded that since right of private defence was exercised conviction cannot be recorded.

10. So far as the stand regarding non-mention of the name D of PWs 2,6 and 7 are concerned, it is to be noted that as rightly observed by the trial court and the High Court on hearing the cries of his father the deceased PW 1 was rushing towards the place of occurrence. Obviously, the focus was on what w, s happening to his father. In any event, inspite of incisive cross-ex- E amination nothing fragile has surfaced in his evidence.

11. It has also been established by prosecution that the station diary entry related to some vague information about disturbance in the village, that cannot take place of the FIR.

12. So far as the non-examination of one of the 1.0. is concerned, it is to be noted that the officer in question had only conducted the inquest. The inquest report was exhibited without any objection and there was no challenge to the correctness of the report. That being so, non-examination ofthe officer in question does

G not in any way corrode the credibility of the prosecution version.

13. The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the .v accused persons, a presumption must necessarily be raised H that the accused persons had caused injuries in exercise of the

right of private defence. The defence has to further establish A that the injuries so caused on the accused probabilises the version of the right of private defence. Non-explanation of the in juries sustained by the accused at about the time of occurrence . ... or in the course of altercation is a very important circumstance .

But mere non-explanation of the injuries by the prosecution may B not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the c omission on the part of the prosecution to explain the injuries. (See: Lakshmi Singh v. State of Bihar (AIR 1976 SC 2?63). A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private

-~ defence is available to an accused, it is not relevant whether he D may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defen9e is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject-matter of right of private defence. The plea of E right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal tres-

-~ pass, and attempts at such offnces in relation to property. Sec- . tion 99 lays down the limits of the right of private defence. Sec- F tions 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to G reasonable grounds for apprehending that either death or griev- -J ous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101, IPC define the limit and extent of right of private defence.

14. Sections 102 and 105, IPC deal with commencement and continuance of the right of private defence of body and property respectively. The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat to commit the offence, although the offence may B not have been committed but not until that there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. In Jai Dev v.

State of F'unjab (AIR 1963 SC 612), it was observed that as soon as the cause for reasonable apprehension disappears C and the threat has either been destroyed or has been put to route, there can be no occasion to exercise the right of private defence.

15. The above position was highlighted in Rizan and An- D other vs. State of Chhattisgarh, through the Chief Secretary, Govt. of Chhattisgarh, Raipur, Chhatttisgarh (2003 (2) SCC 661), and Sucha Singh and Anr. v. State of Punjab (2003 (7) sec 643).

16. Merely because there was a quarrel and some of the E accused persons sustained injuries, that does not confer a right of private defence extending to the extent of causing death as in this case. Though such right cannot be weighed in golden scales, it has to be established that the accused persons were under such grave apprehension about the safety of their life and

).. .

F property that retaliation to the extent done was absolutely neei. essary. No evidence much less cogent and credible was adduced in this regard. The right of private defence as claimed by the accused persons have been rightly discarded.

17. The High Court has referred to the evidence of PWs. 2,6 and 7 to conclude that just before the arrival of PW 1 at the scene of occurrence there was a quarrel between the deceased and the accused. In that view of the matter, the High Court ac- Jcepted the plea that the occurrence took place in the course of H sudden quarrel.

18. As rightly observed by the trial court and the High Court A there was no question of exercise of right of private defence as claimed by the appellant.

19. The accused has been rightly convicted under Sec-

••. _J tion 304Part1 IPC. Custodial sentence, as imposed, also does not appear to be inappropriate in any manner.

20. The appeal deserves dismissal, which we direct.

K.K.T.

Appeal dismissed.

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