Dau Dayal vs The State of Rajasthan

I.S. Israni, J.—This criminal appeal has been filed u/s 374, Cr. P.C. against the judgment dated June 22, 1982 passed by learned Additional Sessions Judge, Gangapur City in Session''s case No. 48/1981 whereby the accused-appellant was convicted u/s 326 I.P.C. and sentenced to 3 years rigorous imprisonment and a fine of Rs. 1,000/-. In default of payment of fine the appellant has to further undergo 3 months rigorous imprisonment. He was also convicted u/s 324, IPC and sentenced to 3 months simple imprisonment. Both the sentences were to run concurrently.

It will suffice to state for the purposes of this appeal that at about 6-7 p.m. in Hindaun on 6-8-1980 an incident took place regarding which report Ex. P. 1 was lodged at about 7.25 p.m. It is alleged that complainant Puranmal was beaten and injured by accused-appellant along with two other persons in which the appellant injured Puranmal with ''gupti''. The appellant caused three injuries with ''gupti'' to the injured Puranmal. He was also beaten by co-accused with ''hunter''. The name of third person was not known to the injured person. It was stated that two days earlier these persons had demanded money from Puran and on his refusal he was stabbed and thereafter Puran had also gave them a stab. Thereupon they had threatened him with dire consequences. On the day of occurrence while Puran was going in ''Sarrafa-Bazar'' and reached the shop of ''Radhey Pan Wala'' the appellant and other two persons gave him beatings as stated above. On this report the investigation commenced and the case was committed to the court of Sessions Judge who acquitted the co-accused Govind but convicted the appellant as stated above.

Shri N. I. Tibrewal, learned counsel for the accused-appellant has raised three contentions during the course of arguments. His first contention is that it is the injured Puran who assaulted and started beating the accused-appellant whereupon the injuries were caused to the injured Puran in right of private defence. Therefore, the appellant has committed no offence under the provisions of Section 326, I.P.C. as held by the learned trial court. It is further contended that since the injuries were caused while exercising right of private defence of the body of the accused-appellant no offence can be said to have been committed by the accused-appellant and he cannot be convicted u/s 326, I.P.C. as held by the learned trial court. The third contention raised by the learned counsel is that since the accused-appellant was of 18-19 years of age at the time of incident and was, therefore, below 21 years of age. It is, therefore, contended that benefit of Section 4/6 of the Probation of Offenders Act should have been given to him.

The contention of Shri Lokesh Shanna, learned Public Prosecutor is that the accused-appellant was aggressor and question of his having any right of private defence of body does not arise and has been rightly convicted under provisions of Section 326, I.P.C. as the injured Puran has received grievous injuries on his body. It is also pointed out that the fact that the accused-appellant struck injured Puran thrice with ''gupti'' shows that he had intention of causing grievous injury to Puran and, therefore, also the benefit of right of private defence of the body cannot be extended to him.

I have heard both the parties, gone through the documents and evidence recorded by the trial court.

Ex. P. 6 injury report of injured Puran shows that he received one incised wound on the right side of Epigastric region. He also received incised wound on the left side of the lower part of the chest. Both these wounds are described as simple. The third stab wound has been caused on left side of chest below the nipple which was also bleeding. On account of this injury X-ray was advised. Ex. P. 8 is bed-head-ticket of injured Puran. He was admitted on 7-8-1980 and was discharged on 20-8-1980. Ex. P. 13 is X-ray report which states that no body injury is seen. Ex. D. 6 is injury report of accused-appellant Dau Dayal who has received 8 injuries which are however, simple in nature. Ex. D. 6 is dated 7-8-1980 and the time given is 1.00 a.m.

It will be necessary to point out and discuss the evidence of the certain witnesses before reaching any conclusion regarding (SIC) first contention raised by the learned counsel for the appellant regarding exercise of right (SIC) private defence of body by the appellant. PW 1 injuries Puranmal has stated that first co-accused Govind struck him with chain which he held by hand. Thereafter accused-appellant gave him three blows with ''gupti'' which have been described above. He has also described the incident that took place earlier in which Rs. 20/- were demanded from him by accused-appellant. In cross-examination he states that when he reached the shop of ''Radhey-Pan Wala'' he was stopped by co-accused Govind. Co-accused Govind caught hold of his hand and told him that today they will not leave him. Thereafter he states that Govind struck him with chain which he grabbed with his hand. Thereafter accused-appellant Dau Dayal gave him three blows with ''Gupti''. He also states that he had snatched the chain from co-accused Govind. He was confronted with Ex. P. 1 Parchabayan and Ex. D. 1 his statement recorded u/s 161, Cr. P.C. in which he had stated that Govind was armed with ''hunter''. He explained that he had told the police that co-accused Govind had ''hunter'' in the shape of chain which he had snatched from him. He could not say why this was not mentioned in the statement recorded u/s 161, Cr. P. C. or in Ex. P. 1 He further states that he took the chain to his house and handed it over to his family members which was produced by them before the police and is article 2. He also denied that he had stated in the statement recorded u/s 164, Cr. P.C. before Magistrate Ex. D. 2 that he did not recognise the person who struck him with ''hunter''. He further stated that in Ex. P. 1 he had wrongly stated that the earlier incident in which money was demanded from him took place two days earlier but in fact had taken place only one day earlier than the date on which the incident took place. He also states that at the time when money was demanded by accused-appellant no one else was with him. He denied that on the day of occurrence he was armed with the chain Article 2 produced in Court and his friend Narain was armed with ''hunter'' and both of them gave beatings to accused-appellant near shop of ''Radhey-Pan Wala'' Rajju alias Rajendra PW 2 has stated that near the shop of ''Pan Wala'' accused appellant gave blow with ''Gupti'' to the injured Puran. He further states that co-accused Govind was standing but did not gave any beating to Puran. Govind Prasad son of PW 3 is another eye-witness who states that he had seen appellant and Puran fighting with each other near the shop of ''Radhey-Pan-Wala''. He further states that injured Puran was striking Dau Dayal with chain. Therefore, Dau Dayal gave three blows with ''Gupti'' to injured Puran. From the above statements it is clear that a fight had taken place between injured Puran and accused-appellant Dau Dayal. PW 3 Govind Prasad has clearly stated that it was Puran in the first instance who gave blows with chain to accused-appellant whereupon the accused-appellant gave three blows with ''Gupti'' to Puran and thereafter ran away from the site. It, therefore, cannot be said that the accused-appellant was aggressor as prosecution witness PW 3 himself says that the aggressor was Puranmal who in the first instance started striking accused-appellant with chain. It is also clear from the evidence of prosecution that co-accused Govind did not take part in fighting even though PW 1 Puranmal states that co-accused Govind also gave him beatings with chain in the first instance. This also goes to show that the story given by injured Puran that he snatched the chain from hand of Puran and took the same to his house which was subsequently handed over to police and has been marked as Article 2 is also wrong. Evidently the chain belongs to injured Puran and Govind was implicated falsely and was rightly acquitted by the trial court. It may also be pointed out that the prosecution has tailed to explain the injuries caused to the accused appellant in the fight. PW 8 Radheyshyam is ''Pan-Wala'' outside whose shop the incident took place. He states that accused-appellant and Puranmal had a fight amongst themselves near his shop but he could not say that with what weapon each of them was armed. He also states that co-accused Govind was not participating in the fight. He was, however, declared hostile. Dr. Shyam Behari Bhardwaj PW 5 has described the injuries received by injured Puranmal and has stated that the advised X-ray on account of injury No. 3. On the basis of X-ray report received by him he states that he is of the opinion that injury No. 3 was penetrating deep into the plurreal cavity, sucking air. causing internal haemorrhage. He therefore, states that injury No. 3 was grievous in nature. He further says that he cannot say whether any of these injuries caused to the injured Puran cannot be dangerous to life. In cross-examination he states that he cannot say whether vital organs of the body or any artery was damaged by injury No. 3. Dr. Jagdishmal Mehta PW 6 is Surgeon and had examined the injured Puranmal when he was admitted in S.M.S. Hospital. He states that his abdomen was opened and there was not much internal haemorrhage. The wounds in the abdomen were not damaging any vital organ or artery. He also states that as per bad head ticket the abdomenal injury was not dangerous to life. He also states that he could not say whether any of the injuries was of grievous nature as it is the job of the Medical Jurist to give opinion on this point. Dr. Nanlal Sharma DW 1 had examined accused-appellant when he came to hospital in injured condition. Injury report is Ex. D. 6. He states that accused-appellant in all received 8 injuries which were simple in nature and were caused by blunt object and the duration of the injuries was within 6 to 8 hours.

Section 320, I. P. C. define grievous hurt and states the kinds of hurt that are designated as ''grievous''. The trial court has applied 8th clause and held that the third injury caused to the injured Puran is grievous in nature. Section 320 reads as under:

"320. Grievous hurt. The following kinds of hurt only are designated as ''grievous'':

First Emasculation.

Secondly -- Permanent privation of the sight of eye

Thirdly -- Permanent privation of the hearing of either ear.

Fourthly -- Privation of any member of joint.

Fifthly -- Destruction of permanent impairing of the powers of any member of joint.

Sixthly -- Permanent disfiguration of the head or face.

Seventhly -- Fracture of dislocation of a bone or tooth;

Eightly -- Any hurt which endagers life or which causes the sufferes to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits."

As seen earlier the medical evidence shows that no body injury was caused to the injured Puran, Medical Jurist has not been examined. Dr. Jagdishmal Mehta, PW 6 has stated that abdomenal injury was not dangerous to life. He further states that the wounds in the abdomen had not damaged any vital organ or artery. Dr. Shyam Behari Bhardwaj PW 5 has stated that there was causing internal haemorrhage and severe-dyspnoea. However, Dr. Mehta PW 6 gives out that there was not much internal haemorrhage and the wounds in the abdomen were not damaging any vital organ or artery. Doctor Ram Chandra Joshi PW 9 also states that the X-ray plates did not show any bony injury. He states that in his opinion injury was grievous in nature and caused by a penitrating weapon. However, he says that it is for the Medical Jurist to say whether it was sufficient, in the ordinary course of nature to cause death. Merely because some Doctors state that a particular injury is grievous or dangerous to life cannot become so, unless it falls within the definition of the same as given under the Penal Code. None of the Doctor''s mentioned above have stated that the third injury caused to the injured Puranmal was dangerous to life and as pointed out earlier the injured was admitted on 7-8-1980 and discharged on 20-8-980 i.e. after 13 days. Therefore, this also does not fall within the ambit of eighth clause of Section 320 of Penal Code wherein it is necessary that the injured person should have suffered during the space severe bodily, or unable to follow his ordinary pursuits. There is no evidence on record to show that even though he was discharged from the hospital he could not perform for 20 days his ordinary pursuits or that he was in severe bodily pain for 20 days. Thus, I am of the opinion that the injury caused to the injured Puranmal does not fall within the definition of grievous as defined in Section 320, I.P.C.

It has already come in the evidence that the accused-appellant was not an aggressor and P W 3 clearly states that it was the injured Puranmal who was armed with chain and in the first instance struck the accused appellant with chain whereupon the accused-appellant gave him blows with ''Gupti''. It can be said that right of private defence starts soon after a reasonable apprehension of danger to the body arises from an attempt (to) commit some offence even though the offence may not have been committed or there is serious apprehension of the same. It may also be stated that right of private defence gives right to defend one-self against any apprehension of danger to the body. In this case there was not only apprehension but the injured Puranmal had in the first instance started giving blows with chain to the accused-appellant. Therefore, it can be said that he exercised his right of private defence when he struck Puranmal with ''Gupti''. The contention of learned Public Prosecutor is that the accused-appellant should not have caused three blows with ''Gupti'' and perhaps one was enough to defend himself, has no force inasmuch as in such a situation it is not possibly to weigh in golden scales the maximum or minimum amount of force that may be exercised by the person or may be necessary to save and defend himself. On the circumstances of this case, it can be said that appellant has succeeded in establishing not only by preponderance of probability that Puranmal was biased for attack on him with chain but it is evident from the prosecution evidence itself that he actually attacked accused-appellant with chain before the accused-appellant gave blows with ''Gupti'' to him in order to save himself. I am, therefore, of the considered opinion that the accused-appellant exercised his right of private defence of the body.

In the result, it is held that the accused-appellant did not commit any offence u/s 326, I.P.C. and is hereby acquitted of all the charges levelled against him. The accused is on bail and he need not submit his bail bonds. The appeal is allowed.