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Judgment
Per: Justice Alok Awasthi
This appeal was listed for consideration of I.A. No.10301/2025, which is second application under Section 430 of BNSS/Section 389 of Cr.P.C. for suspension of jail sentence and grant of bail, however, with the consent of parties, heard finally.
The present Criminal Appeal has been filed under Section 374 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") being aggrieved by the judgment of conviction and sentence dated 04.01.2022 passed by the Additional Sessions Judge, Badnagar, District - Ujjain, in Sessions Trial No.435/2016, whereby both the appellants have been convicted for commission of offence punishable under Section 302 of the Indian Penal Code, 1860 (for brevity) and sentenced to undergo Life Imprisonment along with fine of Rs.2,000/-. With default clause to further undergo 06 - 06 months' additional rigorous imprisonment.
The case, as alleged by the prosecution in brief, is that on 05.07.2016, the complainant lodged a dehati nalisi stating that when she and her husband (Samandarsingh), at about 10:00 p.m., sitting inside their house situated at Kalyanpura, District Ujjain, accused Banesingh started abusing him and said "he would keep his wife". To which, the complainant Tarabai and deceased Samandar Singh came out and tried to pacify him. At that moment, accused Ghanshyam Keer and Lalita also reached there and they all said, "today they would kill the deceased, because he had acted inappropriately with their daughter-in-law Kanta". Upon this, the deceased answered that they are suspicious without any cause as he had nothing to do with Kanta. Out of anger, Banesingh came to the deceased to attack him by means of sickle (dhariya), deceased also retrieved a sword from his house and during the scuffle, both fell into a ditch in front of the house. Accused Lalita snatched the sword from deceased and gave it to the accused Banesingh. After that, Banesingh and Ghanshyam assaulted Samandarsingh by means of sword and axe on the head, arms and legs of the deceased, due to which, Samandarsingh died on the spot. The said incident was seen by Madanlal Keer and Chiranjilal.
On the basis of said dehati nalisi, an FIR bearing Crime No. 304/2016 was registered at Police Station Bhatpachalana, District Ujjain against Banesingh Keer, Ghanshyam Keer and Lalita Bai Keer for the offence under Sections 294, 302/34 of IPC. Autopsy of the deceased was conducted, spot map was prepared, statements of the witnesses were recorded and weapons used in the crime were seized from the place of incident. The police collected the samples of blood stained soil, plain soil and blood stained hair from the spot and sent to the FSL for chemical assessment. The accused persons were arrested.
Upon completion of the investigation, a final report under Section 173(2) of Cr..P.C. was submitted before the JMFC, Badnagar, District Ujjain and the trial was committed to the Court of Sessions. The appellants abjured their guilt and claimed for trial pleading innocence.
In order to bring home the charges, prosecution has adduced as many as 18 witnesses viz. Tarabai, complainant (PW-1), Madanlal (PW-2), Chiranjilal (PW-3), Rajaram (PW-4), Gokulsingh (PW-5), Suresh (PW-6), Umraosingh (PW-7), Ratanlal (PW-8), Ghanshyam (PW-9), Kanta (PW-10), Prakash Dabar, Head Constable (PW-11), Uttam Marmat, Patwari (PW-12), Chainsingh, Head Constable (PW-13), Mahipal, Constable (PW-14), Dr. Devendra Swami, Medical Officer (PW-15) and Daulatram Jogawat, Inspector (PW-16). On behalf of defence, 02 witnesses namely Dr. Gyanendra Pradhan, Medical Officer (DW-1) and Dr. S.K. Akhand, Medical Officer (DW-2) have been examined.
Learned trial Court, after appreciation of the evidence adduced by the parties, pronounced the impugned judgment on 04.01.2022 and finally concluded the case and convicted the appellants Banesingh and Ghanshyam for commission of offence under Section 302 of IPC and sentenced to undergo Life Imprisonment each with fine of Rs.2,000/- each and usual default stipulation and acquitted the accused Lalitabai and Ghanshyam for the offence under Sections 294 and 302/34 of IPC and also acquitted the appellant Banesingh for the offence under Sections 302/34 and 294 of IPC and Section 25(1-B)(b) of Arms Act.
Learned counsel for the appellant has submitted that the trial Court has committed error in convicting the appellants for the offence under Section 302 of IPC by relying upon the statement of Tarabai, complainant (PW-1), Gokul Singh (PW-5), Ratanlal (PW-8) and Ghanshyam (PW-9) as they are interested witnesses. He has also submitted that Tarabai (PW-1) has denied that she lodged Dehati Nalisi and also denied that she lodged any marg report, in her Court statement. Instead of that, the prosecution has not declared her hostile for the purpose of scribe of Dehati Nalisi and Marg, which shows that the Dehati Nalisi (Ex.-P/1) and Marg Report (Ex.P/2) are false and concocted documents. There are omission in the Court version of Gokul Singh (PW-5) and in his police statement (Ex.D/2), by which it is clear that he is not eye witness of alleged incident and he is hearsay witness. Learned trial Court has also committed error in believing FSL Report (Ex.P/28). According to the prosecution, draft of FSL was prepared on 22.07.2016 and same was forwarded to FSL, Gwalior on 28.07.2016.
It is further contended that there is variation in Najri Naksa (Ex-P/20) and Stop Map (Ex.P/3). The prosecution has not examined any independent witness or any independent neighbour witness of spot. That apart, learned trial Court has acquitted the appellant No. 1 Banesingh for the offence under Section 25(1-B)(b) of Arms Act. The case of prosecution is entirely based on assumptions without existence of any 'intention' or 'knowledge' on the part of appellants to render their actions as 'culpable homicide' as per requirements of Section 299 and 304 (Part-II) of IPC. On such grounds, counsel for the appellants prays that the impugned judgment be set aside and present appeal be allowed.
On the contrary, counsel for the respondent/State opposed the prayer and submitted that the trial Court has rightly convicted the appellants after appreciating the evidence available on record.
We have heard learned counsel for the parties at length and perused the record.
In the backdrop of rival submissions, the question of determination for adjudicating this appeal is, as to whether the findings of the learned trial Court with regard to conviction and punishment of appellants under Section 302 of IPC is incorrect in the eyes of law and facts or not ?
In view of the rival submissions, the statement of Dr. Devendra Swami, Medical Officer (PW-15) recorded before the trial Court is significant. In his statement, he has deposed that as per the Autopsy Report (Exhibit-P/24), the cause of death of the deceased, is due to multiple abrasion and excess bleeding, the deceased suffered cardiorespiratory arrest. In his statement, he stated that injuries found on the body of the deceased were caused by means of sharp object, but in cross-examination, this witness has stated that in port-mortem report (Ex.P/24), he did not mention that which injury was minor or which was serious in nature. He did not write the nature of any injury in the post-mortem report. He also stated that he did not mention as to whether the injuries were caused by a hard, blunt object or a sharp object. The witness voluntarily stated that most of the injuries were incised wounds, which imply that they were caused by means of sharp weapon. He further deposed in his cross-examination that, none of the injuries sustained by the deceased, were found to have severed bones and also none of them is sufficient to cause death. Besides that, as per his deposition, it can be said that if a person falls from a height of three feet on a hard surface on the floor of a drain, then injury No. 3 'an abrasion measuring 11x1/4 cm on middle of the chest, is possible and except injury No. 3 and 15, all the injuries mentioned in post-mortem report can be occurred if two persons are in a rage and anger and fall into a pit five to six feet deep in which spades, shovels and pickaxes are kept. It is clear from the testimony of Dr. Devendra Swami (PW-15) that the deceased did not sustain any grievous or life threatening injury. Furthermore, existence of any external injury visible on the body of the deceased was inconclusive due to the mid-to-advance stage of decomposition of body of the deceased.
Now, another question which arises for consideration as to whether the appellants can be protected by their right of private defence and death of deceased comes under the purview of culpable homicide not amounting to murder ?
On this aspect, testimonies of eye witnesses as well as medical evidence and statement of Dr. Devendra Swami (PW-15) are required to be ruminated. As per statement of Tarabai (PW-1), who happens to be wife of the deceased, is an eye witness of the incident as per prosecution case, in para 8 of her statement, she narrated that "when my brother-in-law (jeth) started abusing her husband, Ghanshyam and Lalita reached on the spot and said, "they will kill her husband". Thereafter, her husband brought sword from the house and assaulted accused Banesingh on his leg and both of them fell down in a pit." In spite of that, she was not declared hostile by the prosecution.
On this aspect, when this witness was cross-examined, in para 9, she stated that "she saw that Banesingh, Lalita, Geetabai and Ghanshyam dragged her husband and she also followed them. In the same paragraph, she said that the door was closed from front side and also said she went from the back door of the house.
On this point, the testimonies of other witnesses namely Madanlal (PW-2), Chiranjilal (PW-3), Rajaram (PW-4), Suresh (PW-6), Umraosingh (PW-7), Ratanlal (PW-8), Ghanshyam S/o Mansingh (PW-9) & Kanta (PW-10) have been recorded, but they have not supported the prosecution story in respect of assaulting the deceased by the appellants. Certainly, Gokul Singh (PW-5) has also supported the prosecution story to some extent.
In this regard, it is well settled that if the prosecution witness is not supporting the prosecution case, the defence can rely on the evidence of such witness which would be binding on the prosecution. In Rajaram Vs. State of Rajasthan, (2005) 5 SCC 272, the Hon’ble Apex Court held that the testimony of the such witnesses cannot be side lined. This principle is endorsed again in Mukhtiar Ahmed Vs. State (NCT of Delhi) reported in (2005) 5 SCC 258.
In view of the above, the fact regarding assaulting the deceased in front of her wife Tarabai (PW-1), is contradicted by the witness Rajaram (PW-4). Furthermore, when Rajaram (PW-4) is not supporting the fact of assault, the statement of Tarabai (PW-1) wife of the deceased, cannot be treated as reliable evidence.
So far as the demur regarding private defence of the appellant is concerned, the testimonies of defence witnesses namely Dr. Rajendra Pradhan, Medical Officer (DW-1) is required to be discussed, wherein he has stated that when the appellant Banesingh was brought to him for medical examination, he found that "an incised would measuring 5x2 cm on the left thigh of the appellant and a incised would measuring 3x1.5 cm on the upper side of left knee". As per statement of other defence witness Dr. S.K. Akhand (DW-2), Medical Officer, Central Jail Bherugarh who said that when the appellant Banesingh was brought in the jail under custody, due to injury on his left leg, entry of the same, was taken in the Health Book of the jail.
Thus, it can be seen that even at the appellate stage the appellants are entitled to get a plea of private defence. The onus on the appellant under Section 105 of BNS can be discharged from the materials available on record.
In this regard, the Division Bench of High Court of Kerala in the case of Ayyappan Kunjumon Vs. State of Kerala [2015 SCC OnLine Ker 39089], has taken the prop of the judgment rendered by the Apex Court in the case of George Dominic Varkey v. State of Kerala [1971 (3) SCC 275] , wherein the Apex Court has held that "the right of private defence rests on three ideas; first, that there must be no more harm inflicted than is necessary for the purpose of defence; secondly, that there must be reasonable apprehension of danger to the body from the attempt or threat to commit some offence and, thirdly, the right does not commence until there is a reasonable apprehension."
A principle of a human nature says "where the facts and circumstances give rise to a reasonable and imminent apprehension of death or grievous hurt, the law does not expect a person under attack to weigh the degree of defensive force in golden scales or to modulate his response with mathematical precision. In such situation, the right of private defence legitimately extends even to cause of death of the aggressor, provided the apprehension is bonafide, imminent and based on reasonable grounds and the force employed is confined to what is reasonably necessary to avert the threatened danger. The legitimacy of the exercise of such right must be assessed from the standpoint of the accused as he perceived the circumstances at the relevant point of time and not with the detached wisdom of hindsight. Resultantly, where the evidence establishes that the accused acted under a genuine and reasonable apprehension of death or grievous hurt, the mere fact that the aggressor succumbed to the injuries would not, by itself, render the act culpable, as such conduct falls within the protective ambit of the right of private defence recognized by law.
For ready reference from which, basic principle can be gathered, Sections 97, 100 and 101 of IPC is worth to be mentioned here :-
97. Right of private defence of the body and of property. -
Every person has a right, subject to the restrictions contained in section 99, to defend -(First) His own body, and the body of any other person, against any offence affecting the human body; (Secondly) - The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. *****
100. When the right of private defence of the body extends to causing death.-
The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:-(First) Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; (Secondly) Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault; (Thirdly) An assault with the intention of committing rape; (Fourthly) An assault with the intention of gratifying unnatural lust; (Fifthly) An assault with the intention of kidnapping or abducting; (Sixthly)- An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release. (Seventhly) - An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act. ******
101. When such right extends to causing any harm other than death.-
101.When such right extends to causing any harm other then death.- If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of the body does not extent to the voluntary causing of death to the assailant, but does extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death."
In the instant case, available evidence establishes that the deceased had armed himself with a sword and was the aggressor who initiated the assault by inflicting injuries upon the appellant Banesingh. In such circumstances, the appellant acquired the right of private defence under Section 97 of IPC. The material question is whether the appellant had a reasonable apprehension of death or grievous hurt. The law does not require an individual to wait until a fatal blow is struck before exercising the right of private defence. Once the circumstances disclose an imminent and reasonable apprehension of such consequences, the right extends to causing the death of the aggressor, as contemplated under Section 100 of IPC. The plea of private defence can legitimately be gathered from the prosecution evidence itself and does not necessarily require independent defence evidence. The testimony of Tarabai (PW-1), acknowledging the prior enmity between the parties and the appellant's apprehension that the deceased would kill him, further fortifies the appellant's claim that he acted under a genuine and reasonable apprehension to safeguard his life.
Be that as it may, no doubt normally the right of private defence is not available to either of the parties in incidents of group fighting, but that is not a rule without exception. In the case at hand, we have a special circumstances wherein the appellant sustained injuries on the left thigh meansuring 5x2 cm and another injury measuring 3x1.5 cm on the upper side of left knee and killed the deceased by sword, which was brought by the deceased himself from his house. Appellant Banesingh has taken plea of private defence from the beginning of the trial which is established from the evidence available on record.
So far as the culpability of appellant Ghanshyam is concerned, it is evident from the record that when the altercation took place between deceased and appellant Banesingh, appellant Ghanshyam, son of appellant No. 1 and her daughter Lalita came there. When deceased intimidated the appellant for life, he took out the axe from his house and assaulted the deceased. This version has also been corroborated by the statement of prosecution witnesses. Therefore, it can be gathered that he did not intend to cause the murder of the deceased because when the fight took place, he was not armed with the axe, which he brought later on. In such circumstances, it can be ascertained that appellant Ghanshyam was also not having premeditation to cause death of the deceased. Had it been a case where the accused is having intention to kill a person, he would have brought the weapon. However, in this case, the same did not happen. Hence, for this appellant also the offence would not travel more than Section 304 Part-II of IPC. It is also evident that the issue involves in this case, is a violation of the right of private defence.
It is also apparent from the record that there is a disputed between the deceased and appellant and the same is resulted in this crime. For the same dispute, appellant Banesingh has also lodged an FIR bearing Crime No. 303/2016 at Police Station Bhatpachalana, District Ujjain.
In view of the aforesaid, we have not hesitation to hold that these appellants entitled for the benefit as prescribed under exception-IV of Section 300 of IPC. Thus, these appellants are liable to be under Section 304 Part-II of IPC.
On this aspect, the Apex Court in the case of Gurpal Singh v/s The State of Punjab reported in AIR 2017 SC 471 in a paragraph – 10 held thus:-
“However, in the singular facts of the case and noticing in particular, the progression of events culminating in the tragic incident, we are inclined to reduce the sentence awarded to him. Incidentally, the occurrence is of the year 2004 and meanwhile twelve years have elapsed. Further, having regard to the root cause of the incident and the events that sequentially unfolded thereafter, we are of the comprehension that the appellant was overpowered by an uncontrollable fit of anger so much so that he was deprived of his power of self-control and being drawn in a web of action reflexes, fired at the deceased and the injured, who were within his sight. The facts do not commend to conclude that the appellant had the intention of eliminating any one of those fired at, though he had the knowledge of the likely fatal consequences thereof. Be that as it may, on an overall consideration of the fact situation and also the time lag in between, we are of the view that the conviction of the appellant ought to be moderated to one under Sections 304 Part 1 IPC and 307 IPC. Further, considering the facts of the case in particular, according to us, it would meet the ends of justice, if the sentence for the offences is reduced to the period already undergone. We order accordingly.”
The Hon'ble Supreme Court in the case of Arjun & Another Vs. the State of Chhattisgarh reported in AIR 2017 SC 1150 held as under:-
“20.To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. Union Territory of Chandigarh (1989) 2 SCC 217 : (AIR 1989 SC 1094, Para 6), it has been explained as under: "7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.............."
21.Further in the case of Arumugam v. State, Represented by Inspector of Police, Tamil Nadu, (2008) 15 SCC 590 : (AIR 2009 SC 331, Para 15), in support of the proposition of law that under what circumstances exception (4) to Section 300 IPC can be invoked if death is caused, it has been explained as under:-
"9.
"18.The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight;
(c)without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation n the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'."
The Hon'ble Supreme Court in the case of Prabhakar Vithal Gholve v/s State of Maharashtra reported in AIR 2016 SC 2292, has laid down that if the assault on the deceased could be said to be on account of the sudden fight without premeditation, in heat of passion and upon a sudden quarrel, Conviction of the appellant cannot be sustained under S. 302 and altered to one under Section 304 Part-I of IPC. In Sikandar Ali v/s State of Maharashtra reported in AIR 2017 SC 2614, the Court altered the conviction under Section 302 IPC to under Section 304 part-2 IPC in the following circumstances :-
“We have no doubt about the complicity of all the accused in the homicide of Sarfraj. A-1 attacked the deceased with the knife and caused injury on his neck which resulted in his death. The other accused assisted him in committing the crime by holding the hands of the deceased. However, the only question that falls for our consideration is whether the accused are liable to be punished for an offence under Section 302 IPC. After considering the submissions made by the counsel for the Appellants and scrutinising the material on record, we are of the opinion that the accused are not liable to be convicted under Section 302 IPC. We are convinced that there was neither prior concert nor common intention to commit a murder. During the course of their business activity the accused reached the dhaba where the deceased was present. An altercation took place during the discussion they were having behind the dhaba. That led to a sudden fight during which A-1 attacked the deceased with a knife. Exception 4 to Section 300 is applicable to the facts of this case. As we are convinced that the accused are responsible for the death of Sarfraj, we are of the opinion that they are liable for conviction under Section 304 part II of the IPC. We are informed that A-1 has undergone a sentence of seven years and that A-2 to A-4 have undergone four years of imprisonment. We modify the judgment of the High Court converting the conviction of the accused from Section 302 to Section 304 part II of the IPC sentencing them to the period already undergone. They shall be released forthwith.”
On substratum of aforesaid deliberations in entirety, the present Criminal Appeal is allowed in part. So far as the culpability of the appellants is concerned, the same is hereby maintained but the conviction is altered to Section 304 Part – II of the IPC instead of Section 302 of the IPC, and accordingly, the sentence is reduced from Life Imprisonment to 10 years rigorous imprisonment with fine of Rs.2,000/-. If the appellant has completed the 10 years of actual jail sentence, he be released from jail forthwith, if not required to be kept in jail in any other case. In the event of default in payment of fine, the appellants shall undergo 80-80 days of simple imprisonment.
A copy of this judgment be sent to the concerned trial Court alongwith record for information and necessary compliance.
With the aforesaid, the appeal is allowed and disposed of. Pending I.A.s, if any, stands disposed of.