Indar Alias Bachhar vs The State

Gopal Singh, J.—This is appeal by Inder. The Appellant has been convicted u/s 304(11) Indian Penal Code and sentenced to rigorous imprisonment for three years by judgment dated December 18, 1967 passed by Shri H.K. Mehta, Sessions Judge, Rohtak.

The case of the prosecution is as under:-

The Appellant is brother of Nafe Singh deceased. Both were residing in village Kheri Sampla. There houses adjoin each other. The Appellant, who is a cobbler, was present in courtyard of his house on July 26, 1967 at 9 p.m. and was doing the work of cobbling in the light of lantern placed by him on the wall of the courtyard running along the lane. The glare of the light of the lantern caused inconvenience to Nafe Singh deceased, who was resting on a cot closely. His wife Smt. Kela P.W.2 was sitting close to him Nafe Singh pointed out to the Appellant to remove the lantern from the wall and place it down below The Appellant refused to do so. Nafe Singh removed the lantern from the wall and placed it on a heap of bricks lying in the courtyard of the house of the Appellant. Upon this, there ensued mutual abuses Nafe Singh gave two or three blows with lathi to the Appellant. The Appellant, who was at that time sharpening rapi, an instrument for cutting leather, gave two blows with rapi on the chest of Nafe Singh Smt. Kela P.W. who followed her husband when he left his cot and entered the courtyard of the house of the Appellant, saw the occurrence with her own eyes. Sabha Chand P.W.3, Kantu, Dehiya and Chandgi were also attracted to the scene of occurrence. They bandaged the wounds of Nafe Singh. He was carried to the Hospital at Sampla. He expired on the way-Leaving his deadbody in the Hospital, Smt. Kela P.W proceeded to Police Station Sampla. She loged first information report, Exhibit P.A. narrating the above facts.

Angrez Singh Assistant Sub-Inspect or reached the spot of occurrence. He recovered blood stained earth from the courtyard of the Appellant. Memo pertaining to its recovery is dated July 27, 1967. He recovered blood-stained rapi Exhibit P. 2. Memo of its recovery also bears the same date. Angrez Singh took in possession the lantern Exhi-bit P.1, which had been removed by Nafe Singh from the wall of the courtyard of the Appellant.

Dr. Nanak Chand Gupta, conducted the post-mortem examination of Nafe Singh on July 27, l967 at 2 p.m. He found the following injuries on his person ;-

Incised wound 7 cm X 1 cm X 1/2 cm on the left side of the chest 10 cm above the iliac crest ; direction of the wound was from forward to backward and upward.

Penetrating wound 4 1/2 cm x 2 cm entering the thoracic cavity left side in the inter-costal space. On dissection, the 5th rib was found fractured. The direction of the wound was downwards and backwards.

Contusion 3 cm x 1 1/2 cm below the left eye.

Contusion 4 cm X 3 cm on the left shoulder on its front.

5th rib was cut through and through on the left side.

Left peurae was cut below injury No. 2. The tear was 41/2 cm X 2 cm.

Left lung through and through tear 4cm X 11/2 cm on the lower lobe.

Paricardium full of blood and cut 3 cm x 1 cm on its, left antero lateral surface. ''

Left ventricle was cut through and through.

The doctor gave the opinion that injuries No. 1 and 2 could be caused by rapi Exhibit P. 2 and that injury No. 2 was sufficient in the ordinary course of nature to cause the death of the deceased He further opined that injuries Nos 5 to 9 could be the result of the same rapi blow with which injury No 2 had been caused.

The case of the prosecution was supported by the evidence of the two eye-witnesses, namely, Smt. Kela P. W. 2 and Sabha Chand P. W 3, recoveries of blood-stained earth, rapi and 1 intern and medical evidence.

In his statement u/s 342, Code of Criminal Procedure the Appellant admitted that while he was working in the courtyard of his house and was sharpening his tools in the light of lantern placed on the wall of his courtyard, Nafe Singh deceased removed the lantern and placed it on a heap of bricks lying in his house, that he protested to Nafe Singh against the removal of the lantern from the wall, that Nafe Singh gave him two or three lathi blows in the courtyard of his house after abusing him and that he in return abused him and in exercise of right of private defence gave him blows with rapi, which he was sharpening at the relevant moment.

The trial Court came to the conclusion that there was not much difference between the version of the prosecution and the allegations made by the Appellant pertaining to the occurrence. It further held that the Appellant had committed offence of culpable homicide not amounting to murder by causing injuries with the knowledge, that the injuries infliated were likely to cause death but without any intention to cause death and convicted him u/s 304(II), Indian Penal Code.

Shri Rajinder Sachar appearing on behalf of the Appellant has contended that the trial Court has not applied its mind to the plea of exercise of right of private defence urged on his behalf and has not considered it at all.

According to the evidence of the eye-witness, Sabha Chand P. W.. 3, two or three blows were given by Nafe Singh deceased to the Appellant following the exchange of abuses upon, the removal of lantern, from the wall of the court-yard of the Appellant. There is no difference between the prosecution version and the version of the-defence. There was every justification on the part of the Appellant to defend himself against the attack launched by Nafe Singh upon the Appellant. u/s 100 of the Indian Penal Code, the right of private defence of body extends to the voluntary causing of death, if the offence, which had occasioned the exercise of right be of an assault which may reasonably cause the apprehension that grievous hurt would be the consequence of such assault.

As a result of the two or three lathi blows having admittedly been given by Nafe Singh deceased to the Appellant, the blows could cause grievous hurts to the Appellant and thus the Appellant could reasonably apprehend that grievous hurt or hurts would be caused to him.

The conduct of the deceased goes a long way to suggest that he felt irritated over the keeping of the lantern by the Appellant on the wall of the courtyard of his house because of the glare and consequent inconvenience, which he felt in sleeping on his cot lying near the wall and it is this irritation, which actuated him to remove the lantern of the Appellant from the wall and to place it at a lower level in the courtyard of the Appellant on a heap of bricks living there. The Appellant protested against the removal of the lantern by the deceased. The deceased abused the Appellant. So did the Appellant in return. Thereafter, the deceased gave two or three blows with a lathi. It appears that the deceased while leaving his cot armed himself with a lathi and thereafter picked up the lantern and placed it on the heap of bricks. It shows that the deceased left his cot not only with the object of removal of the lantern from the wall into courtyard of the Appellant but also with the intention of assaulting the Appellant with the lathi, if need be. The remonstration made by the Appellant to the deceased seems to have upset the latter

He abused the Appellant in reply to the remonstration lodged by the Appellant with the deceased against the removal of the lantern. The Appellant did not keep quiet either. He too abused him in turn. This type of behaviour on the part of the Appellant meted out to the deceased armed as he was with a lathi, actuated the deceased to assault the Appellant and to cause hurts to the latter. It is neither stated by Smti. Kela nor by Sabha Chand P. Ws. that the lathi had been picked up by the deceased from the courtyard of the Appellant. The Appellant also does not say that the lathi, with which the deceased caused injuries to the Appellant, had been picked up by the deceased from the courtyard of the Appellant. These facts clearly point out to the intention of the deceased not only in unnecessarily raking up trouble with his real brother but also indicate that he came into the courtyard of the Appellant with the intention of using force with the aid of lathi, with which he came armed to the courtyard and to give blows to his brother and thereby to cause hurts to him with the likelihood of the hurts causing fracture of bones and one or more of them turning out to be grievous hurt or hurts.

It is admitted by Smti. Kela P. W. that the Appellant was, at the time the lantern was removed from the wall by the deceased, sharpening his rapi and he was so doing in the light of the lantern as she saw it. The Appellant realised that the deceased was not taking things lying and he was out for trouble. The deceased did not slop short after having placed the lantern on the heap of bricks in the courtyard of the house of the Appellant. Instead of retracing his footsteps and repairing back to his house, he abused the Appellant when it was pointed out to him that he should not have removed the lantern from the wall. When the Appellant abused the deceased in reply to his abuse, the deceased instead of controlling himself, gave the Appellant two or three blows with his lathi in succession. Under these circumstances, there could follow a reasonable apprehension in the mind of the Appellant that if he is given further blow, some serious injury of the nature of grievous hurt might be caused to him by the deceased. At the time the blows were showered by the deceased on the Appellant, the Appellant was sharpening rapi. In order to avoid the peril to his life or in any case the danger of some grievous hurt being caused to him at the hands of the deceased the Appellant gave couple of blows with, his rapi. It is the conduct of the deceased preceding the delivery of blows by the deceased to the Appellant climaxed by the actual dealing of blows to him with the lathi that was responsible for causing reasonable apprehension in the mind of the Appellant and impelled him to use the rapi, the blade of which he was sharpening at the fateful moment Considering the situation in which the Appellant was placed vis a vis the conduct of the deceased including the giving of two or three blows with the lathi, with which he came armed, there appears every justification for the Appellant to claim the exercise of right of private defence in causing couple of injuries with the rapi to the deceased He did not pick up any other weapon from any other place but he straightaway availed himself of the rapi, which he was sharpening during the course of work of cobblery

There is no doubt that no medical examination of the Appellant was arranged by the prosecution to determine the number and nature of injuries received by the Appellant as a result of two or three blow said to have been given by the deceased with his lathi The occurrence took place on July 26, 1967. The Appellant was arrested on August 5, 1967. The Appellant was arrested 10 days after the occurrence. The prosecution should have got the Appellant examined. Angrez Singh Assistant Sub-Inspector who conducted the investigation and upon whome it was obligatory to get the Appellant medically examined, was given up by the public prosecutor and not produced. The circumstances of the case called for his medical examination soon after his arrest to prove the existence of the injuries on the person of the Appellant and their number and nature, if any located. Thus, the reason for the Appellant not having been got examined by a doctor has remained unfolded by the prosecution and been withheld from Court by not admitting an important witness like investigation officer to step in the witness box.

The counsel appearing on behalf of the State urged that the Appellant could be entitled to the exercise of right of private defence by virtue of Section 100 secondly, Indian Penal Code, if his case did not fall within the scope of the exception that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence as provided in Section 99, Indian Penal Code. As I have discussed above, the point of time when second or third blow was administered by the deceased to the Appellant, the Appellant did not star for use of force. It was thereafter that he apprehended further trouble and trouble of a serious nature if the next blow given by the lathi tell upon his head or upon any bone and vital part of his body, causing injury of serious nature. It is with a view to avoid and avert that dangerous consequence that he resorted to the use of rapi. There was no other alternative left with the Appellant except to stop the deceased from further giving blows and causing him injuries by dealing with the deceased in the situation in which the Appellant was placed and in the way in which he could at a spur of the moment deal with him. It could not be legitimately contended that the Appellant, in the premises of the facts and circumstances, in which he was placed, inflicted more harm than it was necessary to inflict for the purpose of exercise of right of private defence. Once the right of exercise of private defence arose to an accused person and the attending circumstances called for the exercise of that right, it may be difficult to measure and weigh the force of a blow or blows which he gives in exercise of that right. Blows so given cannot be weighed with the same approach as spoonfuls of sugar. No golden scales can be used to prove the extent of use of the force, with which a blow could be given by a person exercising the right of private defence, if he is entitled to exercise that right. Even if there is bona fide error of judgment in exercise of that right, he will non-the-less be entitled to protection of its exercise. The claim for exercise of that right should not be pretentions but real. Its exercise should be warranted by the situation with which an accused person is faced. The extent of its exercise should reasonably be com nensorate with the magnitude of the danger apprenended This aspect of the case has been, ignored by the trial Court. The situation, in which the Appellant was placed, entitled him to exercise right of private defence.

For the reasons given above, I allow the appeal and set aside the conviction and sentence of the Appellant and acquit him