Dev Datt vs State of H.P.

R.S. Thakur, J.—This appeal has been filed by the Appellant Dev Datt (hereinafter referred to as the accused), against the order of the learned Sessions Judge, Solan and Sirmaur Districts at Nahan, dated March 26, 1985, whereby he was found guilty for the offences under Sections 326 and 324 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs. 2,000/- and in default to undergo further imprisonment for six months under the first count and to undergo rigorous imprisonment for six months under the second. Both the sentences were, however ordered to run concurrently.

According to the prosecution there was a fair at Oach-ghat near Solan on September 18, 1983. Mohinder Singh, his brother Rajinder Singh alias Harnam Singh, Hira Singh and Romesh Chand and one Rajesh Kaundal also participated in that fair. Said Hira Singh is incidently the brother-in-few of Mohinder Singh and Romesh Chand is the brother-in-law of his brother Rajinder Singh. The aforesaid five persons then returned together from the fair at about 11.00 p.m.- as they all intended to go to the house of said Mohinder Singh and Rajinder Singh in village Nandal. When on their way back home they were at a place from where public path branches off towards village Nagali on the main road near the said village, the accused who was lying in wait there, all of a sudden attacked them with a knife in hand and inflicted injuries with that knife on said Mohinder Singh, Rajinder Singh, Hira Singh and Romesh Chand and thereafter jumped down the road. The said four injured persons then reached home with difficulty and narrated the incident to the family members including Rattan Singh, the father of Mohinder Singh and Rajinder Singh. Next morning an ambulance was called from the hospital and the four injured persons were admitted in the Civil Hospital at Solan. The police was also informed thereafter and at the instance of the police the four injured persons were medically examined and as the injuries on the persons of Rajinder Singh, Hira Singh and Romesh Chand were found to be of serious nature as dangerous to life, they were referred to the Snowdon Hospital whereas Mohinder Singh whose injuries were not so serious remained under treatment in the same hospital. The police then registered a case u/s 307 and 324 of the Indian Penal Code and sent up the accused to face his trial for the aforesaid offences.

It may also be stated at the very out set that a few hours before the aforesaid four injured persons were brought to the hospital in an ambulance on the morning of September 19, 1983 and a case was registered, at their instance by the police after recording the statement of Mohinder Singh in the hospital, under Sections 307 and 324 of the Indian Penal Code against the accused, the accused himself had already been admitted in the same hospital for the treatment of the injuries on his body who was brought from Nagali to the hospital in an ambulance in the early hours of the morning and he had disclosed that those injuries had been caused to him by the aforesaid four persons. Since, however, the medical report revealed tha the injuries on the person of the accused were simple in nature, no cognizance was taken by the police in this behalf except that a copy of the report lodged by the accused from his bed in the hospital was sent to the District Magistrate, Solan.

The trial Court having found a prima facie case against the accused under Sections 307 and 324 of the Indian Penal Code charge sheeted him accordingly. The prosecution then in proof of the charges against the accused examined as many as 21 witnesses. The accused in his statement u/s 313 of the Code of Criminal Procedure took up a plea of self-defence. His version was that he had also gone to the fair at Oachghat and on his way back home from the fair at about I a.m. at a distance of about 1 km. from Oachghat, the aforesaid four persons came there out of whom Rajinder Singh alias Harnam Singh declared that the accused would not be allowed to go alive and thus all the four person pounced upon him and started giving him beating. He then raised an alarm but none came to his rescue at that time, while the aforesaid four persons became more aggressive towards him. Said Rajinder Singh then took out a knife from his pocket and he (the accused) then snatched that knife from the hands of said Rajinder Singh and started brandishing the same in his self protection which might have resulted in the injuries to those persons. The learned Sessions Judge, however, disbelieved the plea of self-defence on the part of the accused and held that on the basis of the prosecution evidence on record while the offence u/s 307 of the Indian Penal Code was not made out, the one u/s 326 of the Indian Penal Code was fully proved beyond all doubt as also the one u/s 324 of the Indian Penal Code and the learned Sessions Judge convicted and sentenced the accused accordingly as stated earlier.

The learned Counsel for the accused at the time of argument before me has contended that the trial Court has gravely erred in not accepting the plea of self-defence on the part of the accused and that the facts and the circumstances on record clearly and unequivocally indicate that the injuries to the aforesaid four persons were caused by the accused in the exercise of his right of private defence. The learned Assistant Advocate General on the other hand has controverted this contention and supported the findings of the lower court.

Paras 6 - 20. xxx xxx xxx

The learned trial Court in the impugned judgment found the following infirmities on the case:

(i) that although Rajesh Kaundal has been put up by the prosecution as eye witness of the incident but it is doubtful whether he was present at the time of the incident since although he was such an important witness in the case, his statement was not recorded by the police during the investigation u/s 161 Code of Criminal Procedure which is a serious lapse on the part of the investigating agency and moreover, his name does not find mention even in the statement of Mohinder Singh Ex. PW 1/A which was the first version of the incident from the injured person Mohinder Singh;

(ii) the recovery of knife at the instance of the accused was highly doubtful as when the� statement of the accused was recorded in this behalf no independent witness of the locality though easily available, was called as a Panch witness and even the knife itself was not produced in the Court during the course of the trial, as the same was lost during the transit when it was being brought to the court, which explanation was not accepted by the Court;

(iii) though no motive on the part of the accused which impelled him to commit the offence in question has been proved and only vague statements have come on record but the same according to the trial Court was not material in this case; and

(iv) the expression on the part of the prosecution with regard to the injuries on the body of the accused, namely, that he sustained those injuries when he jumped down the road after causing injuries to Mohinder Singh and his companions and fell on the stones resulting in injuries to him was not acceptable. The possibility cannot be ruled out that these injuries were inflicted upon the accused by the four injured person in retaliation. But, according to the court, these injures were caused to the accused in all probability by the four injured person after the accused had caused knife injuries to them, that is, the accused was the aggressor.

Despite these infirmities, however, according to the trial court, since the accused had admitted that he had caused those injuries to the four persons though in exercise of his right of private defence the first three infirmities pointed out above, did not have any material effect on the prosecution case and the plea of right of private defence was not available to him since (a) he did not take up this plea when he made the statement to the police Ex. PW 17/B on the morning of September 19, 1983 that he caused knife injuries to the four injured person in the exercise of his right of private defence and (b) according to the prosecution evidence, it was the accused who, all of a sudden, attacked the four persons with a knife and inflicted knife injuries to them and thus, if at all, the accused was beaten by the four injured persons, it was after the infliction of the injuries by the accused to them.

In the end, the trial court, while considering as to what was the actual offence proved against the accused held that no intention or knowledge could be imputed to the accused to cause the death of the four person as it was highly improbable that the accused would have believed that he would accomplish this act of causing death of all the four persons single handed with the knife in question and he thus held that the offence u/s 326 of the Indian Penal Code only is proved so far as the causing of injuries to Rajinder Singh, Hira Singh and Romesh Chand is concerned and u/s 324 of the I.P.C. qua the fourth injured person Mohinder Singh. In the premise of the foregoing facts and circumstances this Court has to address itself to the important question, namely whether the impugned judgment of the lower Court is sustainable? After careful consideration, I have come to the conclusion that answer to this poser should be in the negative for the reasons to be recorded presently.

After going through the entire evidence on record X am firmly of the view that the prosecution has not been fair and impartial while conducting the investigation of this case and the Court also does not appear to have taken this aspect of the question into consideration while handing out the impugned judgment. In the first place, it was forgotten that the incident admittedly took place at about mid night which is decidedly most odd and an unearthly hour for the parties connected with this case to come from a fair especially when it was admittedly a dark night. Thus possibility canndt be ruled out that the persons connected with this episode were under the influence of liquor and the incident was a result of a drinking brawl. Secondly, the injured Mohinder Singh has categorically admitted that he or his brother Rajinder Singh had no enmity with the accused or his father or any of his family members and in fact according to him the accused has been his class mate and they used to meet each other almost every day. In these circumstances it appears highly improbable that the accused should have thought, first to lie in wait at that odd hour and then all of a sudden, in the darkness of night, attack the four young persons who were of his own age with a knife when, even according to the trial court, he could never even dream of causing death of all the four persons and was in the bargain inviting a sure death to himself. One could understand if the accused nad a pistol or gun in his hand and was firing at them from some distance which could have not only, reasonably assured him about the result of causing death of the four persons but also eliminated the possibility of any retaliation in self-defence on the part of the four persons, but not with a weapon like knife. Then it is also clear that no body takes an extreme step of this nature unless he has been seriously provoked or has a strong motive to do so. The prosecution, however, has miserably failed to prove the existence of any of such factors and there is a parrot like version on the part of the injured that when they were going home from the fair in the dark night, the accused all of a sudden attacked them which appears to be highly unnatural and improbable, Even if any animus on the part of the accused is presumed against the two injured persons Mohinder Singh and Rajinder Singh, as they knew each other, there is no reason why the accused should have attacked the other two persons Hira Singh and Romesh Chand who were complete strangers to him and they had not even known or seen each other prior to the incident. In the evidence, on record, however, according to the prosecution, it was Hira Singh who was the first victim of the attack by the accused. This was the condition in the pre-incident era.

As regards the actual incident this again appears to be of doubtful nature. According to the prosecution the accused, all of a sudden, attacked the four persons and after causing those injuries on their body with the knife at once jumped down the road when Rajesh Kaundal who was also accompanying them ran to catch hold of the accused. This story of jumping down the road appears to have been invented by the investigating agency during the course of the investigation as they found it difficult to explain the injuries on the body of the accused. The report of the Medical Officer who examined the injuries on the body of the accused has found as many as 12 injuries an his person and most of them on his head which are as follows:

Lacerated wound of the size of 2 cms x 2 cms oblique in direction over the hair line on the left side. Hair not cut, margins irregular.

Clean lacerated wound of the size of 1.5 cm x 1 cm placed over left forehead at the hair line.

Clean lacerated wound size of 3 cms x 1 cm placed over parietal region on the right side, direction longitudinal.

Clean lacerated wound of the size of 3 cms x 2 cms over the vault of scalp in the mid line. Margins irregular.

Clean lacerated wound of size of 3 cms x 2 cms over the occipital region to the right side of mid line.

Clean lacerated wound placed over the parietal region of size of 1 cm x 1 cm on the left of temporal region

An abrasion of scratch type is placed over left shoulder measuring 4 cms x 2 cms oblique in direction.

A bruise placed over the left side of neck longitudinally measuring about 3 cms x 2 cms red in colour.

Multiple abrasions over the right shoulder and clavicular region, variable in size, varying 2 cms to 3.5 cms irregular and horizontally in direction.

An abrasion placed over the right side of tire face measuring about 1.5 cms to 3 cms brown in colour.

There was a swelling, red in colour tender on touch over the left forearm. However, there was no evidence of fracture of underlying bones.

Swelling, redness, tenderness observed over the right scapular region. However, underlying bone was found normal.

Even the trial court, however, has held and rightly so, that this Rajesh Kaundal was imported as a prosecution witness in the case with an ulterior motive to be an independent eye witness of the incident and also depose with regard to the jumping of the accused down the road and according to the trial Court it is quite probable that these injuries were caused to the accused by the four injured persons and the witness Rajesh Kaundal was not there. Now if this were the position, it is clear that the investigating agency has been highly unfair in the conduct of the investigation in this case. This belief is further strengthened by the fact that the recovery of the weapon of offence at the instance of the accused by the police during the inyestigation was fake, the non production of the weapon of offence during trial and the flimsy grounds urged for non production thereof. In these circumstances I feel that a great doubt was cast on the credibility of the prosecution case.

Even in the post incident period the conduct of the injured is such that the claim of the prosecution that the injuries on the body of Hira Singh, Rajinder Singh and Romesh Chand were dangerous to life becomes improbable and doubtful for a number of reasons. In the first place these three injured persons after the incident went in the darkness of the night for a distance of one kilometer to the house of Rajinder Singh alias Harnam Singh and quietly go to bed without taking any steps to get immediate medical aid or reporting the matter to the police. No doubt according to his father Rattan Singh and the two wives of Mohinder Singh and Rajinder Singh, the four injured persons had narrated this incident to them on their arrival at the house, but, these statements of theirs do not inspire confidence since at least no father like Rattan Singh would have rested in peace till the morning when he found that his two sons and two of his very close relations had sustained such serious injuries especially when the house is almost on the main road and not very far from the hospital at Solan, or from Oach-ghat where admittedly a fair was going on and a vehicle for taking the injured to the hospital could be arranged without any difficulty. They were, however, brought to the hospital only after the accused had been admitted, in the hospital and he had reported to the police that all the injuries on his body had been caused by the four injured persons. It is also not out of place to mention that although it is the case of the prosecution that the three injured persons, namely, Rajinder Singh, Hira Singh and Romesh Chand were in serious condition and, therefore, had to be referred to the Snowdon Hospital where they remained under treatment, there is, however, no iota of evidence on record as to whether the investigating agency tried to elicit any information with regard to the injuries on their person from the Medical Officers in the Snowdon Hospital or whether they remained admitted and under treatment in the Snowdon Hospital at all. After they were examined by Dr. Ghosh at Solan in the morning of September 19, 1983, at 10.10 a.m., it appears, as if all the three of them disappeared into thin air.

It is also very interesting to note that there was a single injury on each of the three injured persons, Rajinder Singh, Hira Singh and Romesh Chand and strangely enough they were almost at the same point in all the three except that injury in one case was above 1 cm of the injury in the other in succession. For instance in the case of Rajinder Singh, the description of the injury has been given as �punctured wound (stab injury) in left iliac fossa situate 4 cms. above the mid inguinal ligament above downwards and directed left to right side�. In the case of Romesh Chand it is: �punctured wound (stab injury) in the left iliac fossa placed 3 cms. above the mid inguinal point and the wound is placed above downwards and directed left to right side�. Then in the case of Hira Singh, the description of injury is �punctured wound (stab injury) present on the left iliac fossa just 2 cm. above mid inguinal region lingament. The wound is directed left to right and is placed almost horizontally slightly disposed as to above downwards�.

Thus is it indeed surprising to note that although the accused is shown to be in such a dangerous mood but there is only single stab wound on the. person of each of the three persons and that too almost at the identical place and direction except that in the first case it is 4 cms. above the mid inguinal ligament in the second case it is 3 cms. above and in the third case it is 2 cms. This has cast a serious doubt on the genuineness of the injuries on these three persons. It may also be noted that in each of these cases examined by Dr. Ghosh he has particularly recorded his findings that no peculiar smell was noted by him from the breath of mouth of the four injured persons. Usually this observation is not made in the medical certificate unless a Medical Officer is expressly called upon to opine whether the patient concerned was under the influence of liquor. This sort of uncalled for observations in the instant case was in all probability to exclude the presumption that they were under the influence of liquor when the incident took place. I have already observed that this type of incident could take place only in a drunking brawl as was even the suggestion on the part of the accused during the cross examination of the injured and probably at the time of the issuance of this certificate the presence of this consciousness cannot be ruled out.

Now in this background, the question is whether the finding of the trial Court that the plea of the accused that he had exercised his right of private defence as he apprehended danger to life from the four injured persons was not acceptable, is sustainable ? I have no doubt that the learned trial Court has erred in denying to the accused, on the facts and in the circumstances of this case, this plea of self defence. The reasons set forth by the lower Court while rejecting this plea of the accused are two fold, namely, (a) that the accused failed, while lodging his report to the police with regard to the incident, to state that he had caused knife injuries to the four injured persons in self defence while they were belabouring him and (b) that the evidence of the injured persons was categorical and worth credence that it was the accused who all of a sudden attacked the four injured persons in the darkness of night and caused them stab injuries and -according to his findings it was only thereafter that the accused was belaboured by them.

I feel that this was entirely an erroneous approach on the part of the trial court. The law did not cast any duty on the accused while making his own statement touching the incident to take the first opportunity to plead his right of self defence and nothing prevented him from taking this plea even during the course of the trial which he undoubtedly did as in the cross examination of the very first witness it was suggested that it was the injured persons who had attacked the accused and seriously belaboured him.

In AIR 1942 147 (Oudh) it has been held �the omission to state the plea of self defence in the report made by the accused to the police cannot bar the accused from putting his case at the trial�.

The Hon�ble Supreme Court in Partap Vs. The State of Uttar Pradesh, has clearly and succinctly laid down the law with regard to the right of private defence which may be summarised as follows:

Having regard to the provisions of Sections 101 and 105 of the Indian Evidence Act, the burden of proving the guilt against the accused beyond all reasonable doubt always lies upon the prosecution. The exception like the plea of self defence if set up by the accused has to be proved by him and the trial Court at the commencement of the trial while recording the prosecution evidence will presume the existence of no such right. However, the burden of proof which lies upon the prosecution is of more onerous nature than the burden on the accused to prove the existence of such right since whereas the prosecution has to prove the case beyond all reasonable doubt, it is sufficient for the accused to establish a preponderance of probability in proof of such right.

The Court has even gone further and held that even if, where on account of the evidence adduced by the accused or from the evidence of the prosecution, it is proved on record the existence of any circumstance bringing the case within such an exception as to the right of private defence, raising a presumption that such a possibility may exist, the accused would be entitled to the benefit of such exception. That is to say that even if the accused fails to discharge his duty fully by establishing the existence of such an exception , he may still get the benefit of the exception indirectly when the prosecution fails in its duty to eliminate genuine doubt about his guilt introduced by the accused.

Now in the instant case, in my opinion, even in the prosecution evidence this plea of right of self-defence to the accused is clearly indicated. As I have already observed the incident took place in the dead of night when the parties concerned were going home from the fair and the occurrence appears to have taken place without any rhyme or reason and thus the possibility of the incident taking place in some type of brawl cannot be ruled out. Then the accused was the first to be admitted in the hospital for the injuries found on the different parts of his body and mainly directed at his head and early in the morning at 6 A.M. he categorically stated before the police that it was none else but the four injured persons who had inflicted those injuries upon him while they gave merciless beatings to him when he was returning home from the fair. The version of the four injured persons that the accused attacked them in the dead of night with a knife while they were returning home and caused injuries to them, came later, and no motive has been proved or even suggested as to why the accused should have attacked them with a deadly weapon. Then while those injured persons were being examined as prosecution witnesses it has been clearly suggested on behalf of the accused that he was victim at their hands when all the four of them threw him on the ground and started beating him mercilessly. The version of the prosecution that the injuries on the person of the accused were caused due to fall and not through beating by the injured persons has been disbelieved even by the trial Court and not supported by material evidence.

Thus in these circumstances I have no doubt in my mind that even if these injuries were caused to the four persons by the accused they were pointer to the fact that he did so in the exercise of his right of private defence as he was justified in apprehending danger to his life or the danger of receiving grievous hurt at the hands of the four persons and it is of no legal� consequence that the accused failed to plead this right of private� defence in the report that he lodged in the police with respectj to the incident on the morning of September 19, 1983.

It has been held even by the trial Court that it was not probable that the accused would have sustained those injuries while jumping down the road and this sort of plea on the part of the prosecution was an after thought.

The finding of the lower court, however, that although these injuries were caused by the four injured persons to the accused but after the accused had inflicted injuries upon them is not supported by any plausible ground. It was based on a more parrot like version of the four injured persons who are naturally highly interested witnesses and especially when they have categorically denied that they raised even a little finger against the accused not to speak of beating him even after the accused had inflicted injuries upon them. No doubt the accused in answer to the question No. 26 has given an explanation that while he was being beaten by the four injured persons, one of the injured persons, Rajinder Singh took a knife out of his pocket and apprehending a danger to his life the accused snatched that knife from the hand of Rajinder Singh and then started brandishing it in order to ward off the attack on him, and that in that process he might have caused these injuries to them. This explanation may not be true but this is of no consequence. In the circumstances of this case even if he had categorically stated that he had taken out the knife of his own pocket and caused injuries to the four persons who were belabouring him, as he apprehended danger from them to his life, even that in my opinion would have been justified while conceding to him in those circumstances the right of private defence of his person.

In view of the foregoing discussion, I hold that even if the accused had caused those injuries on the persons of Mohinder Singh, Rajinder Singh, Hira Singh and Romesh Chand, it was in the exercise of his right of private defence of person, as I have no doubt that the four persons were aggressors and gave severe beating to the accused before he exercised that right. The accused therefore, is entitled to acquittal on both the charges. I, therefore, allow the appeal, set aside the order of the lower Court dated March 26, 1985 and acquit the accused of the charges under Sections 324 and 326 of the Indian Penal Code and acquit him. The accused is stated to be on bail and as such he need not surrender to his bail bond which are discharged. The fine if realised be refunded to him forthwith.