JUDGMENT
1. The appellant herein stood his trial in the Court of the Prl. Sessions Judge, Belgaum in S.C. 65/89 and threat he was found guilty of having committed the murder of one Keshav, of having caused grievous hurt to one Shanthu and of having caused simple injury to one Annasab. The learned Sessions Judge while convicting the appellant for the aforesaid offences imposed the sentence of life imprisonment for the offence of murder and also sentenced the appellant to terms of imprisonment ranging from 1 to 3 years for the kindred offences punishable under Ss. 326 and 324, I.P.C. He ordered the sentence to run concurrently.
2. Aggrieved by the conviction and sentence imposed on him by the learned Sessions Judge as aforesaid the appellant preferred this appeal. Herein we shall refer to the appellant as the accused for the sake of convenience.
3. On his behalf we have heard a very tenacious but persuading argument by Sri. Ravindra Patil who appears in support of this appeal. A valiant attempt was made by learned counsel for the accused to establish that his client has fallen prey to a frame-up by a set of conniving witnesses who belong to the wealthy landlord gentry of the Athni wherein this incident is said to have occurred. The accused who belonged to Kuruba community, the counsel says, had chosen to live amongst the landed gentry who belonged to the higher caste Jains and so the witnesses who belong to the Jain community in order to get rid of him have falsely implicated him in the case. In the end learned counsel urged that even admitting the prosecution case to be 100% true and fool-proof the evidence adduced in the case would go to show that whatever had been done by the accused had been done by him in exercise of his right of private defence and that he had not exceeded his right of private defence. It is also urged by him that even if the court were to hold the accused had exceeded the right of self-defence then the highest the offence committed by the accused with reference to one of the victims of the assault viz. deceased Keshav would only be an offence punishable under Part II of S. 304, I.P.C. meriting a lesser and a lighter punishment than the punishment of imprisonment for life.
4. Per Contra the learned Special Public Prosecutor has endeavoured to show that the case does not fall within the perview of Part II of S. 304, I.P.C. and suggests that we reject the argument resting on the right of private defence. Further on he submits that the guilt of the accused herein being a foregone conclusion resting as it does on the solid and very convincing oral evidence of the two witnesses for the prosecution PWs 1 and 2 both of whom had been injured at the incident. He also calls in aid the medical evidence to support the evidence of the eye-witnesses. He concludes by submitting that the accused had generously weilded an axe, a lethal weapon, and had caused the death of Keshav and injuries to Shanthu and Annasab. In such circumstances, the submission of learned Public Prosecutor is, nobody can deny that the man who weilded a deadly weapon like the axe and dealt severe blows which had the effect of killing one person and injuring two others, one of them seriously, had the knowledge as well as the intention to cause such an injury that would eventually cause death and lead to fatal results. He submitted that any controversy in this behalf is vain and futile. Therefore, he commends the affirmation of the conviction and sentence imposed on the accused.
5. On the submissions made by either side, the points that arise for consideration are :
(i) Where the evidence led for the prosecution justified the culpability of the accused for the sustenance of the injuries by the two injured witnesses PWs 1 and 2 and the fatal injury sustained by the deceased ?
(ii) Whether in the facts and circumstances of the case the accused, if held to have inflicted the aforesaid harm on the prosecution party, could be said to have inflicted it in exercise of his right of self-defence ?
(iii) If so, whether in so exercising his right of self-defence did he out-step the limits prescribed by law, in the facts and circumstances of the case ?
In order to resolve this on-going consternation between the two sides and the controversy raised herein, it would be necessary to make a brief mention of the facts that had led to the framing of the charges levelled against the accused in the court below.
6. Herein we are concerned with the death of one Keshav and the injury sustained by one Annasab, on the morning of 18th December, 1988 in the village of Savadi. It is the case of the prosecution that the occurrence itself took place at about 8.30 a.m. (sic) earlier at about 7 p.m. PW 7 Sreeshila Vittal Kamble, a young boy aged about 18 years, servant of PW 1 Annasab was driving his bullock-cart filled with chillies and when it came near the field of the accused the bullock attached to the yoke of the cart ate a few maize crops sprouting on the roadside but said to be grown on the land of the accused. The accused took umbrage to the same and gave a sound drubbing to PW 7. PW 7 on his journey back to Nandagaon had reported the matter to PW 1 who was then in the company of the deceased and PW 2 Shanthu. All three of them were on their bicycle en route to Savadi. They rode then directly to the house of the accused at which point of time the accused was already outside his hut. The accused on seeing the deceased and PWs 1 and 2 went into his hut and brought out a fairly large axe which had a long handle of about 2 and 3 feet and began attacking all the three of them. Thus taking all these witnesses by surprise in what appeared to be a hurricane bout the accused then did the vanishing act by bolting away from the scene of occurrence with the axe. Two of the victims who were in a position to cry out raised a clamour. PW 3 Bhujabali and PW 5 Maruti came running to the place of occurrence on hearing this clamour and thereafter witnessing the plight of the injured persons one of them went to fetch a tractor from Nandagaon. The tractor was fetched from Nandagaon by PW 3 Bhujabali and then all the injured were shifted to the trailor of a tractor and driven to the town of Athni 8 kms. away where they landed straight at the police station. At the police station PW 1 lodged a complaint with PSI Chavan, PW 17, who recorded it at about 10-15 a.m. The PSI prepared the F.I.R., Ex. P 16 and handed it over to a constable for remitting it to court. The F.I.R. reached the Magistrate at 1 p.m. on the very day. In the meanwhile all the injured were sent to the hospital for treatment and at the hospital PW 4 Dr. Malagi attended to the injured, found the condition of P.W. 2 and the other victim Keshav to be serious and, therefore, advised their hospitalisation in a major institution. The police arranged to shift P.W. 2 and Keshav to the hospital at Miraj. When the jeep neared the bus stand at Miraj, Keshav breathed his last. Shanthu P.W. 2 was admitted to the Miraj Hospital C.P.I. examined him and recorded his statement on 29th December, 1988. The body of Keshav was brought back to Athni and thereafter handed over to P.W. 4 for conducting post-mortem which was carried out on the same day between 4.40 p.m. and 5.45 p.m.
7. When all this was happening an interesting development took place. The accused it is alleged walked into the police station and gave himself up to P.W. 16 Ambiger, the Head Constable. It was then about 3.30 p.m. Immediately the clothes of the accused and the axe which he had brought with him were both seized under the panchanama Ex. P 15 at which the punch P.W. 13, Mahadev, officiated. M.O. 3 – Pyjama and the banian – M.O. 4 were said to be blood-stained and they were hence sent to the Serologist along with a specimen sample of blood stained earth seized from the scene of offence. Following the surrender of the accused at the police station he was duly arrested and was produced before the J.M.F.C. on the very next day and remanded to judicial custody. The further investigation was taken over by P.W. 17, the C.P.I. at this stage. In due course after receipt of the serologist report etc. the C.P.I. filed the charge-sheet in the Court of the J.M.F.C. Athani for offences punishable under Ss. 326 and 302, I.P.C. against the accused and in due course the case was committed to the Court of Sessions, Belgaum where it was tried in a Sessions Case No. 65/89 resulting in the conviction of the accused for the offences alleged against him leading further to the imposition of punishment to which we have adverted to already.
8. The first point is regarding the culpability of the accused. We would examine this aspect of the case de hors the claim of the accused that whatever he had done, he had done it in exercise of his right of private defence. It seems to us, on a keen consideration of the submission made by Mr. Patil, learned counsel for the accused, that there can possibly be no escape from the conclusion that the accused attacked P.W. 1 and injured him and did away with the hapless victim Keshav on the day and at the time as alleged by the prosecution. Learned Public Prosecutor highlighted the fact that the two witnesses who survived the attack and remained to speak of it had really no antecedent ill-will against the accused deep enough or strong enough to implicate him falsely. Mr. Patil says that there was an on-going skirmish or a war of attrition between the lowly placed accused belonging to Kurubar caste, who has however managed to carve out a niche for himself in the midst of the rich powerful landlords on the one hand all being the members of the jain community. True there is some evidence of this class war between Jains and the accused but, then, the evidence stops short of that. There is nothing to show that at any time earlier, any attempt had been made or any active steps taken to drive out the accused from their midst. Now there is no gainsay in denying that P.Ws. 1 to 3 and perhaps all the Jains were very keen of ousting the accused from their midst, the question is if all this was merely simmering in the background could it have come out and erupted all of a sudden. It seems to us somewhat difficult to accept Mr. Patil’s contention that for some reason the prosecution witnesses had chosen that very day for settling scores with the accused without there being any immediate provocation whatsoever. We think such an argument is indeed a lame one and does not merit any serious consideration.
9. We have good reason to say to because at the incident that took place on 18th December, 1988 Keshav died and Annasab suffered simple injuries while the injuries suffered by Shanthu were termed as grievous in nature by Dr. Chandrasekhar, P.W. 4. P.W. 4 had conducted the post-mortem on the dead body of Keshav. He noticed an incised wound over vertex in midline, longitudinally placed, measuring 5″ x 1″ in size with fracture of the underlying bone. The brain matter was seen. According to P.W. 4 the injury could have been caused by M.O. 5, the axe. On the same day i.e. 18-12-1988 the doctor also examined Shanthu and noticed the following injuries :
(i) incised wound over left frontal region and parietal region, 3″ x 1/2″, bone deep. Fracture of left parietal bone, bleeding was present.
(ii) Incised wound over back of right upper 1/2 of arm, 1″ x 1/2″ x 1/4″.
(iii) Abrasion below injury No. 2, 1″ x 1″ in size.
(iv) Incised wound over left forearm, upper 1/4th oblique, 2″ x 1/2″ x 1/2″. Diffuse swelling present.
According to P.W. 4 injury No. 1 was grievous in nature. Again on the same day P.W. 1 Annasab Bhimanna was also examined by P.W. 4 He noticed three simple injuries. According to P.W. 4 the injuries noticed on Shanthu P.W. 2 and P.W. 1 Annasab could be caused by a sharp cutting object. Therefore, sustaining of these injuries by all these victims could only have been caused by an assault and not otherwise. If that is so, why should P.Ws. 1 and 2 think of implicating the accused falsely in place of any one else is a question to which Mr. Patil could not provide an answer. We, therefore, think the class war between the two communities with the Jains feeling somewhat irksome to be in the company of the inferior Kurubar could not have been the immediate cause for this episode and at any rate we do not think for the aforesaid reason the accused had been falsely strung up by the prosecution witnesses.
10. The question then is, was there way other reason. The prosecution provides the answer through the evidence of P.W. 7 Shrishail Vithal, the servant of P.W. 1. The genesis of this incident is said to be the belabouring of P.W. 7 by the accused earlier in the morning all because his bovine companion dared to clip a few jawar crops from the land of the accused. For this simple reason P.W. 7 appears to have taken a very heavy corporal punishment having been beaten up by chappals and a whip. The evidence of P.W. 7 in this regard appeared to be a little dithering at first sight. He went on to contradict himself with reference to the statements made to the police. But, then, it is not necessary for us to make an in-depth study of this witness because the basic story told by him remains unchallenged. There is no doubt some exaggeration regarding the beating all of which may have to be accepted with a pinch of salt. But in spite of these foibles we have no hesitation in accepting the evidence of P.W. 7. The boy, P.W. 7, happened to meet his master P.W. 1 along with the deceased and P.W. 2 who were on their way to Saadi and had narrated the incident to all of them. The deceased and P.Ws. 1 and 2 arrive at the hut of the accused to seek an explanation from the accused to why he had belaboured their servant. As adverted to by us earlier, the accused chose to answer them with an axe (sic) leading to the death of Keshav and causing of injuries to P.Ws. 1 and 2. If the evidence of P.W. 7 is accepted the visit of these persons to the land of the accused on that day cannot be doubted and has to be accepted as truth.
11. The next of the factors which support the case of the prosecution is that just half an hour later in the complaint given to police the name of the accused finds a place. The complaint is complete with all details and had reached the hands of the local Magistrate by 1 p.m. on the same day. Indeed it is quick work. Within 1 1/2 hours from the time of occurrence there is a complaint to the police and within 2 1/2 hours thereafter the complaint is in the hands of the Magistrate and in that complaint everything that has to be told, accounted for and mentioned is to be found. Thus it becomes clear the immediate cause for this confrontation was the chastisement of the boy P.W. 7 by the accused. It is easy to see that the cause urged by Mr. Patil i.e. the ill-will between Jain and the accused, could not have been the real cause for this incident. This cause is so remote that it is difficult to believe it could have given rise to this incident. Within a short span of 2 to 3 hours after the assault, the full story could not have been conjured up or fabricated by P.W. 1. All of them have been sent to the doctor immediately. The evidence of the doctor P.W. 4 shows that barring P.W. 1 and to some extent P.W. 2, the victim-Keshav was completely unconscious. Even P.W. 2 who was said to be conscious but whether he was in a position to talk or to make a coherent statement we are not in a position to decide because no evidence in that regard to forthcoming and that is the reason why we could not agree with Mr. Patil when he persistently argued that P.W. 2 being not unconscious when he was taken to the doctor, the police should have made post-haste to record his statement. Two witnesses had been injured in the incident and one of them had lodged the complaint with in a short span of time and the rest of the things have followed in quick succession. So, there was no scope whatsoever for deliberate inaction on the part of the prosecution witnesses to enable them to conjure up a tainted story in an apparent bid to implicate innocent people along with or without the real culprits. We do not think that there is any chance of that having happened and we are sure it has not happened.
12. The most serious criticism of the witness P.W. 1 made by Mr. Patil, counsel for the accused, is that it looked as if they all stood-by only waiting to suffer the retribution by the accused. Counsel says the moment the man emerged from the hut with an axe it should have been apparent for the three men that the accused meant business and he being in a belligerent mood there was every likelihood of the accused launching a devastating attack on them. It is pointed out (sic) Shanthu P.W. 2 was in fact an accused in a murder case. Therefore, clearly the men should have known what was in the offing. Surprisingly these men, even after seeing the accused emerging from the hut with the axe in his hand, do not either attempt to overpower the accused or to run away from the scene of occurrence. It is pointed out all three of them had cycles and that appears to be the case also. It is suggested that they could have easily ridden away and marked a safe distance between the accused and themselves in no time. But what they did is, to stand transfixed and gaze at the accused who went on systematically belabouring them. Counsel says that this conduct on the part of the witnesses was quit unnatural and says that for the said reason their evidence should be disbelieved.
13. In this connection learned Public Prosecutor cited to us a decision of the Supreme Court in Appabhai v. State of Gujarat, . Their Lordships pointed out that the Court instead of doubting the prosecution’s case for not producing a better quality of evidence should engage itself in the task of examining evidence on record and search for the nugget of truth with due regrd to probability factor. We wish to except the following passage from Head note ‘B’ to that decision which should be of great assistance in evaluating the evidence of this witness.
“(B) Penal Code (45 of 1860), S. 300 – Murder – Failure of prosecution to examine independent witnesses – Held, prosecution case cannot be thrown out on that ground alone. (Evidence Act (1 of 1872), S. 3).
It is no doubt true that the prosecution has not been able to produce any independent witness to the murder that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the spectrum or the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witness at a dastardly crime or an act of egregious nature may react differently. Their, course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner.
Their Lordships pointed out any contradictions even in the evidence of the victim need not be caviled at and looked askance because many a time the victim who had fortunately survived is liable to have committed such errors that anyone else would have also committed. A person who survived an attack, the Court says, should be considered as the best eye-witness primarily because he had suffered at the incident. Therefore, the discrepancies in the evidence of the victim could not shake the basic version of the prosecution. The advise given to the Court in assessing such evidence by their Lordships is :
“The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.”
The twin test suggested by their Lordships of the Supreme Court provide very valuable guidance in assessing the evidence in this case and we have done so taking however into consideration the criticism of learned counsel in that behalf.
It seems to us the effective answer to this argument by counsel touching the conduct of these persons is furnished by their Lordships in the case referred to supra. It is pointed out by their Lordships that the behavioural pattern of the human being is not common or consistent. Persons react differently to a situation. We do not know what really happened there and we do think that even the prosecution had not come out clean in the matter which depicting that the accused had acted more like a raving lunatic. While we are certainly at a loss of understand why the three victims assumed a static position, being superior in number and all of them being able bodied men much younger to than the accused, all that we can say is the entire thing had probably happened in a jiffy rendering these three men laden-footed. The sudden event must have delayed their reaction to a perilous prospect that was almost imminent. To say anything more would be to indulge in idle speculation. Therefore the argument that these three people behaved in an abnormal fashion standing there waiting to be beaten up by the accused does not in the circumstances merit any serious consideration and, therefore, it is, we reject the submissions of Mr. Patil casting doubts on the authenticity of the version put forward by the two witnesses. The result of this discussion is we must accept the evidence of the two witnesses touching the attack on them on that day by the accused.
14. But this is not the end of it for there is yet another bow to the string and that is what transpires from the voluntary surrender of the accused at the police station at 3.30 p.m. on the very date of the incident in his battle dress with the weapon of the attack – the axe, M.O. 5. P.W. 16 – Ramappa, Head Constable of Athni police station refers to the dramatic appearance of the accused at the police station at about 3.30 p.m. With the blood-stained clothes and the blood-stained earth as well. At the police station the accused was stripped of the blood-stained cloth, banian and pyjama M.Os. 3 and 4, and the axe M.O. 5. They were all searched under the panchanama Ex. P 15. We notice from the records of the Magistrate the seizure of the apparel of the accused and the axe having been reported to the Court on that very day and permission obtained to retain it pending further investigation, which we notice was granted on the 19th. We also find that the accused had been produced before the Magistrate on the next morning i.e. on 19th. Both in this Court and the Court below this tell-tale facet of the prosecution case is vociferously denied. In the Court below while examined under S. 313, Cr.P.C. the accused chose to deny the fact that he surrendered to the police on that day. It is somewhat significant to notice he did not venture to say whether he was apprehended by the police. The fact of his surrender to the police, the seizure of his clothes and the axe and the fact of police producing him before the Magistrate cannot be disputed at all since they are very well established by the catena of circumstances referred to supra, apart from the evidence of P.W. 16 and the panchanama Ex. P 15 conducted in the police station. What follows therefrom is the accused was in the police station at 3.30 p.m. on the very date of the incident and from him some very tell-tale evidence of the offence have been recovered and all this was reported to the Court on the very day and the accused himself was actually produced before the Court by the police on the very next day. It is nobody’s case that the accused was suffering from any mental dilusion and was victim of any derailment of mind. Therefore, if a person who had all his faculties in tact walks into the police station and give himself up on the very day when there was a complaint against him with the police alleging that he had attacked and injured three persons is certainly a circumstance that should fortify a conclusion that in all probability the man had surrendered to the police fearing severe retribution by P.Ws. 1 and 2 if he had remained at large. If the accused had felt that he is not likely to be left alone and was likely to be dealt with as a measure of reprisal by friends and relations of these three people, there is nothing amazing if the accused had decided to walk into the police station of his own accord because it was the safest sanctuary for him. This probably was a development more consistent with the state of affairs then prevailing. It is also quite consistent with the conduct of a person placed in a hapless position like that of the accused who probably had none of back him up when he had on that very morning earned the undying hatred of the Jain community.
15. We therefore think, the case of surrender by the accused to the Police Station on the very date of occurrence few hours later is indeed a fact and has therefore to be accepted as stark truth. This is certainly a circumstance which although not directly but in an indirect fashion lends considerable support to the prosecution’s case stemming from the testimony of witnesses P.Ws. 1 and 2 rendering it safe for acceptance. The necessary conclusion that must follow is that it was the accused who had inflicted injuries on P.Ws. 1 and 2 and also on the deceased Keshav that later turned out to be fatal. We have, in arriving at this conclusion felt it far safer to depend on the pendulum of probabilities in the case and in the process we have chosen to ignore some of the inanities mouthed by the witnesses of which there appears to be quite a galore, an aspect which we were invited to notice during the course of the strenuous submissions made by Mr. Patil on behalf of the accused. By way of random sample we should consider the argument that even before the accused had surrendered, the evidence in this case gives an impression that the axe M.O. 5 had been shown to some of the witnesses. This circumstance, the learned counsel says is appearing from the evidence of P.Ws. 1, 3 and 5. We have looked into that evidence on which counsel reliably laid stress and do not think that it can possibly give rise to any such speculation for the simple reason that nowhere from the evidence of the witnesses and nowhere from the records do we find any reference to the time at which the axe had been shown to these witnesses. In that situation there is little reason not to infer that the axe was shown to them only after the recovery pursuant to the visit of the accused to the Police Station at 3.30 p.m. Counsel invited us to disbelieve P.W. 2 on the ground that his statement had not been recorded immediately and not merely that it had been recorded only 12 days later. It is true that the statement was recorded on the 31st December, 1988 where as the occurrence was on the 18th instant. From the evidence it transpires that he was an inpatient in a hospital at Miraj from 18th to 30th. Counsel says the Investigating Officer should have gone to the hospital, recorded a statement at least a few days after the event. Possibly that could have been done but we do not know what constraints persuaded the Investigating Officer from taking that step but even then it would be safe to venture a guess, regard being had to the fact that the hospital was in Miraj in Maharashtra State 60 K.Ms. from the jurisdictional Police Station and we do not know whether the hospital authorities would have permitted the recording of any statement by a Police Officer of a person who was undergoing treatment at the hospital. These are of course conjectures but they will be nearer to truth. But cross-examining counsel offered no suggestion to the Investigating Officer when he gave evidence attributing laches or inaction in regard to the dealy in the matter of recording the statement of an important witness like P.W. 2. It must also be remembered that P.W. 2 had sustained a serious injury. His left parietal bone had been fractured. P.W. 4 Dr. Chandrasekhar Ningappa Malagi, Medical Officer at Athani did say that the man was conscious when he was brought to the hospital. We have already pointed out that is not proof of the ability of the witness to make a statement and much less a coherent statement as that. Later on he was an in-patient in the hospital for 11 days. We have no idea what his condition was during those 11 days. He appears to be very lucky, that he survived probably due to the treatment he received at the hospital and thereafter when he came out of the hospital he had recorded his statement. In the facts and circumstances of the case the delay involved in recording the statement of the witness does not appear to be decisive so as to affect the credibility of the witness P.W. 2.
16. We have already dealt with the contention of Mr. Patil that there was delay in the transmission of the FIR to the local Court and we have held that regard being had to the events of the day, the delay was not very material. In the result, we, therefore, think it just and proper to accept the evidence of P.Ws. 1 and 2 touching the incident in question and hold it to be well established on the aforesaid evidence treated in conjunction with other materials which set a seal of genuinity to their evidence, being an additional inducement to act on the evidence of the witnesses. On this conclusion the inference to be drawn is that the accused was responsible for the incident.
17. But then that is not the end all and all turning the fate of the accused, as in this Court his counsel raised the plea of right of self-defence and has made submissions on the basis of such a right being available the accused having availed that right had not exceeded it. There is strong plea by the Public Prosecutor repudiating this plea on behalf of the accused. According to the State Public Prosecutor the action by the accused in assaulting unsuspecting P.Ws. 1 and 2, was totally brutal and in that context the argument of Mr. Reddy, State Public Prosecutor was a tentative one. We have given our anxious consideration to the submission of the learned Public Prosecutor and we will shortly invite attention to a few decisions on which the learned Public Prosecutor had also relied upon in the context of this question and availability of right of self-defence to the accused in this case.
18. In dealing with the plea of right of self-defence, it is necessary to bear in mind the philosophy and the etiology behind the provisions of the Indian Penal Code enjoining the availability of the right of private defence, the limits to which it could be exercised and of the situation under which the right itself becomes available. The provisions in this behalf to be noted are, Ss. 97 to 105 and 106 of the Indian Penal Code. The law recognises the basic quality spirit, bravery and courage in a human being urging him to stand his ground to look at the peril or danger facing in the eye and not merely that he can also make an attempt at warding off the threat or evil facing him. In other words law does not except a person to run away like a coward in the face of danger. On the contrary it expects him to stay put and even launch into a confrontation with the perpetrator of violence.
19. The learned counsel for the appellant in this connection invited our attention to a decision of the Supreme Court in Yogendra Morarji v. State of Gujarat, . That is a case in which the accused after having emerged from a jeep fired on two persons standing outside the compound killing one of them. The question then arose whether in the circumstances of the case, the accused had a right of private defence and if so whether he had exceeded that right. The well extolled principles laid down by the Court is succinctly stated in the two head notes A and B. Head note A deals with the general principles spelled out as follows :-
“(A) Penal Code (1860), S. 97 – Right of private defence of body – General principles.
The general principles embodied in the Penal Code, governing the exercise of the right of private defence are as follows :-
The Code excepts from the operation of its penal clauses large classes of acts done in good faith for the purpose of repelling unlawful aggression but this right has been regulated and circumscribed by several principles and limitations.
The most salient of them concerning the defence of body are as under :
Firstly, there is right of private defence against an act which is not in itself an offence under the Code. Secondly, the right comences as soon as – and not before a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is conterminous with the duration of such apprehension (S. 102). That is to say, right avails only against a danger imminent, present and real. Thirdly, it is a defensive and not a punitive or retributive right, consequently, in no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of the defence. (S. 99) In other words, the injury which is inflicted by the person exercising the right should be commensurate with the injury with which he is threatened, at the same time, it is difficult to expect from a person exercising this right in good faith, to weigh “with golden scales” what maximum amount of force is necessary to keep within the right. Every reasonable allowance should be made for the bona fide defender’ if he with the instinct of self-preservation strong upon him, pursues his defence a little further than may be strictly necessary in the circumstances to avert the attack”. It would be wholly unrealistic to expect of a person under assault, to modulate his defence step by step according to the attack. Fourthly, the right extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of S. 100. The combined effect of the first two clauses is that taking the life of the assailant would be justified on the plea of private defence, if the assault causes reasonable apprehension of death or grevious hurt to the person exercising the right. In other words, a person who is in imminent and reasonable danger of losing his life or limb may, in the exercise of right of self-defence, inflict any harm, even extending to death, on his assailant either when the assault is attempted or directly threatened. This principle is also subject to the preceding rule that the harm or death inflicted to avert the danger is not substantially disproportionate to and incommensurate with the quality and character of the perilous act or threat intended to be repelled. Fifthly, there must be no safe or reasonable mode of escape by retreat, for the person confronted with an impending peril to life or of grave bodily harm, except by inflicting death on the assailant. Sixthly, the right being, in essense, a defensive right, does not accrue and avail where there is “time to have recourse to the protection of the public authorities. (S. 99).”
Head Note (B) deals with the principles governing the burden of proof resting on the accused who raises the plea of private defence, to the charge of culpable homicide and is as follows :-
“(B) Penal Code (1860), S. 96 – Plea of private defence – Charge of culpable homicide – Burden of proof – (Evidence Act (1872), Ss. 5 and 105).
The principles governing the burden of proof where the accused sets up a plea of private defence, are as follows :-
S. 105, Evidence Act enacts an exception to the general rule whereby in a criminal trial the burden of proving everything necessary to establish the charge against the accused beyond reasonable doubt, rests on the prosecution. According to the section, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Penal Code or in any other law shall be on the accused person, and the Court shall presume the absence of such circumstances. But this section does not neutralise or shift the general burden that lies on the prosecution to prove beyond reasonable doubt all the ingredients of the offence with which the accused stand charged. Therefore, where the charge about the accused is one of culpable homicide, the prosecution must prove beyond all manner of reasonable doubt that the accused caused the death with the requisite knowledge or intention described in S. 299 of the Penal Code. It is only after the prosecution so discharges its initial traditional burden establishing the complicity of the accused, that the question whether or not the accused had acted in the exercise of his right of private defence, arises under S. 105, read with the definition of ‘shall presume’ in S. 5, Evidence Act, the Court shall regard the absence of circumstances on the basis of which the benefit of an exception (such as the one on which right of private defence is claimed), as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought under the circumstances of the particular case, to act upon the supposition that they did exist. The accused has to rebut the presumption envisaged in the last limb of S. 15, by bringing on record evidential material before the Court sufficient for a prudent man to believe that the existence of such circumstances is probable. In other words, even under S. 105, the standard of proof required to establish those circumstances is that of a prudent man as laid down in S. 3, Evidence Act. But within that standard there was degrees of probability and that is why under S. 105, the nature of burden on an accused person claiming the benefit of an exception, is not as onerous as the general burden of proving the charge beyond reasonable doubt cast on the prosecution. The accused may discharge his burden by establishing a mere balance of probabilities in his favour with regard to the said circumstances.
The material before the Court to establish such a preponderance of probability in favour of the defence plea may consist of oral or documentary evidence, admissions appearing in evidence led by the prosecution or elicited from prosecution witnesses in cross-examination, presumptions and the statement of the accused recorded under S. 313 of the Criminal P.C.
Notwithstanding the failure of the accused to establish positively the existence of circumstances which would bring his case within an exception, the circumstances proved by him may raise a reasonable doubt with regard to one or more of the necessary ingredients of the offence itself with which the accused stands charged. Thus, there may be cases, where despite the failure of the accused to discharge his burden under S. 105 the material brought on the record may, in the totality of facts and circumstances of the case be enough to induce in the mind of the Court a reasonable doubt with regard to the mens rea requisite for an offence under S. 299 of the Code”.
The decision, it may be noticed, apart from spelling out the circumstances under which the right of private defence arises and is available to a person also deals with the burden which the accused carries or the load the accused bears in discharging that burden. As pointed out therein that burden is discharged if the preponderance of probability favours the defence plea supported may be by oral or documentary evidence, admissions appearing in evidence led by the prosecution or elicited from the prosecution witnesses in cross-examination are also, presumptions, and the statement of the accused recorded under S. 313, Cr.P.C. The decision goes on to point out that even if the accused is found to have failed to establish positively the existence of circumstances which would bring the case within any exception, the circumstances proved by him may raise a reasonable doubt as to the establishment of the ingredients of an offence of murder, and may indicate the commission of a lesser offence. In that case, their Lordships while finding that the accused had as a matter of fact exceeded the right of private defence available to him under S. 101 of the Penal Code, nevertheless relied upon some circumstances as factors accounting for mitigation of the offence committed and instead found the offence committed by the accused was one under S. 304, Part II of the Penal Code and not the offence of murder as charged.
20. Dealing next with the burden resting on the accused in establishing the plea of private defence their Lordships held that even if the accused had failed to discharge the burden resting on him (sic) establishment of the right of private defence or in a case where he is found to have exceeded the right of private defence, even then, the offence committed by him will not be murder but something less than that.
21. A Division Bench of this Court comprising of their Lordships Narayana Pai and Ahmed Ali Khan JJ. (as they then were) in the case of State of Mysore v. Raju Shetty, 1960 Mys LJ 995 : (1961 (1) Cri LJ 403) had gone to the extent of enjoining the acceptance of the plea of self-defence even then the accused had pleaded an alibi. The Court held (at p. 409 of Cri LJ) :-
“A plea of self-defence is inconsistent with the express plea of alibi. However, if on the material placed on the record, the plea of private defence could be made out, consistent with S. 105, Evidence Act, there will be no justification to deny the benefit of it to the accused.”
Honnaiah, J., as his Lordship then was in Subboji Rao v. State, ILR (1973) Kant 1450 while dealing with the plea of self-defence held as follows :-
“Right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed and such right continues so long as such apprehension of danger to the body continues. The threat must reasonably give rise to the present and imminent and not remote or distant danger. This right rests on the general principles that where a crime is endeavoured to be committed by force it is lawful to repel that force in self-defence. It is preventive and not punitive right.
This decision makes clear that occasion to invoke the right of private defence arises and becomes available when there is a reasonable and bona fide apprehension in a person seeking to exercise that right. that there was every likelihood of imminent danger to his person. In other words, when a person realises that in all likelihood, he is going to be physically harmed, then he can certainly spring into action and need not wait till the evil strikes. From the two decisions referred to supra, the trite position in law appears to be that the right of private defence arises the moment a person faces a threat of bodily harm or injury and herein we confine ourselves to such a case because this is not a case in which any threat to property was involved. The right of private defence having arisen in that situation continues till the threat or danger is warded off by resorting to such reprisal which may extend even to the causing of death as enjoined by Ss. 105 and 106 of I.P.C. referred to and relied upon by the counsel for the accused. The only constraint in availing of this remedy is the availability of any opportunity to take recourse to other remedies available to a person in law before taking the law into his own hands provided such a remedy was readily available and there was time to avail of it then and in such circumstances if the person takes law into his own hands and attacks another cannot after turnings anguine be then heard to plead that he had acted because he apprehended danger to his person and it felt not necessary to wait till he had taken a recourse to the law.
22-23. It is on this aspect we differ with the learned Public Prosecutor who urges that the accused could not be heard to contend that he had exercised his right of private defence, without laying any foundation therefor at the trial. While we do not agree that a foundation for the plea of right of self-defence by cross-examining witnesses by making suggestions to them or even at least adverting to it in the course of the statement the accused makes to the Court under S. 313, Cr.P.C. is a must, we think even in the absence of such material the Court is not prevented from examining this aspect if in a given case from the very evidence of the prosecution, the exercise of right of self-defence can be probabilised.
24. While in the instant case the learned Public Prosecutor laid great stress on the fact that none of the witnesses or the deceased were armed, what we notice is that all these three persons had gone not with a view to punish the accused but had been there to seek an explanation from him as to why he had punished their servant. We have not found it possible to accept this submission. We do not think that we can accept Counsel’s contention postulating that if those who were injured were unarmed as in this incident, then without more the said fact could rule out exercise of the right of private defence extending even a case where the person who has resorted to the right of private defence, was confronted by three persons. The very superiority in numbers could in all probability have been construed by the accused as an imminent danger to himself thus giving him the signal to act in exercise of the right of private defence more in self-protection than with the intent of harming the others in those circumstances may have appeared to him like maranders rather than peaple who had just come to make an enquiry.
25. The learned State Public Prosecutor invited our attention to ILR (1978) 1 Kant 569 : (1978 Cri LJ NOC 179); State of Karnataka v. Shivashankar. The head note to that decision sets out the ratio thereof as under :-
“Penal Code (1860) (Central Act No. 45 of 1860), Ss. 96, 97 and 100 – Right of private defence of body when extends to causing death – Cardinal principles – Self-defence, though not pleaded, if preponderance of probabilities are available on record, Court to consider same, appreciation of such plea.”
26. The respondent in that case was charged with having committed the murder of one Channegowda. Accepting the plea of self-defence set up by the respondent, the trial Court acquitted him. Aggrieved by the same, the State had preferred an appeal. It was argued on behalf of the appellant that the accused in the case under S. 313, Cr.P.C. had not set up the theory of self-defence, and therefore it was impermissible to make out a case he had not pleaded.
The Court therein held –
Though the accused does not take the plea of self-defence in his statement under S. 313, Cr.P.C. it is open to the Court to consider such plea if the prosecution evidence supports it and the necessary basis for that plea is laid in the cross-examination of the prosecution witness. The burden of establishing that plea, no doubt, is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.
In taking out the life of a person on the plea of self-defence, four cardinal conditions must exist;
1. the accused must be free from fault in bringing about the encounter.
2. there must be present an impending peril to life or of great bodily harm, either real or so apparent as to create honest belief of an existing necessity.
3. there must be no safer or reasonable mode of escape by retreat, and
4. there must have been a necessity for taking life. In judging the conduct of a person who proves that he had a right of self-defence allowance has to be made for his feelings at the relevant time. If he was faced with an assault which caused a reasonable apprehension of death or grievous hurt and that inevitably created in his mind some excitement and confusion at such a moment, the upper most feeling in his mind would be to ward off the danger and to save himself or his property and so he would naturally be anxious to strike a decisive blow in exercise of his right. It is no doubt true that in striking the decisive blow, he must not use more force than appears to be reasonably necessary. But in dealing with the question as to whether more force was used than is necessary or than was justified by the prevailing circumstances, it would be in appropriate to adopt tests of detached objectivity which would be so natural in a court room, long after the incident. The means which a threatened person adopted or the force which he used should not be weighed in golden scales.”
While there cannot possibly be any controversy regards the prevalence of the necessary conditions enjoined upon by their Lordships, the circumstances under which the right of private defence can arise as referred to in the head-note to the decision, it seems to us which the decision no doubt appears to have laid down that in a given case it would be necessary for the accused to spell out the basis on which the right of self defence was put forward and without looking at such a case we however find it difficult to travel the length to which the Court in that case had actually gone but even then, it is not necessary to indicate any divergence from the view taken by their Lordships certainly a very eminent authority, but suffice it to note that their Lordships did not law down anything therein from which any support could be gathered for the proposition canvassed by the learned public prosecutor viz. that if no basis was laid to raise the plea of self defence in the examination of the witnesses, it would not then be open to the court even to consider the same. Their Lordships having not gone to that extent, the submission of the learned State Public Prosecutor basing himself on the said decision in State of Karnataka v. Shivashankar (1978 Cri LJ NOC 179) (Kant) to contend that this was not a case in which the accused could be heard to say that he had a right of private defence and had exercised that right, because he had not led any evidence, he did not cross-examine the witnesses for the prosecution on these lines nor did he expouse this defence during 313, Cr.P.C. statement, therefore has to be negated.
27. The learned public prosecutor next invited our attention to two other decisions both of the Supreme Court in Salima Zia v. State of Uttar Pradesh and Mohinder Pal Jolly v. State of Punjab . We do not see much relevance of these decisions to the question on hand. The learned State Public Prosecutor relied strangely on the statement of the law in Head Note A to the decision which reads (Para 10) :
“The onus is on the accused to establish the right of private defence of property or person not on the basis of the standard of proving it beyond doubt but on the theory of preponderance of probability. He might or might not take this plea explicitly or might or might not adduce any evidence in support of it but he can succeed in his plea if he is able to bring out materials in the records of the case on the basis of the evidence of the prosecution witnesses or on other pieces of evidence to show that the apparently criminal act which he committed was justified in exercise of his right of private defence of property or person or both.”
28. In Morarji’s case (1980 Cri LJ 459) (SC) (supra) decision on which he relied upon, the court also held that the onus lay on the accused to establish he had the right of private defence. In both the cases, their Lordships pointed out that the burden of establishing the said plea was on the accused and the same could be discharged even on the basis of preponderance of probabilities. In Deo Narayan v. State of Uttar Pradesh their Lordships held. :-
“Penal Code 1860 – Commencement of right of private defence – Continuance of the right to private defence of the body.
The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed, and such right continues so long as such apprehension of danger to the body continues. The threat however, must reasonably give rise to the present and imminent and not remote or distant danger. To say that the appellant could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in the above section. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. It is a preventive and not punitive right.”
We feel that we have sufficiently adverted to the law relating to the right of private defence and we must now proceed to examine in the facts and circumstances of this case to ascertain whether the accused had the right of private defence and had in fact exercised the same and when so exercising that right he had exceeded the right of private defence or not. This is a case in which three people all youngsters and able-bodied as the records show had actually gone to the door-step of the accused. It is the case of the prosecution that they were annoyed by the conduct of the accused in assaulting their servant PW. 7 Srishyla. The purpose of their visit to the accused on that morning was to seek an explanation in that behalf. It is an undisputed fact that the accused belonged to the Kuruba caste and he was one and the only person of that caste who had lands. It is also an admitted fact that all other surrounding his land belonged to members of the Jain community and Jains of that place were well placed in life. This aspect transpires from the evidence of PW. 1 at para 9 as follows :-
From the above testimony it becomes clear that the accused was virtually land-locked by the holdings of Jains and therefore it may well be the Jains wanted to get rid of the accused who belonged to the Kuruba community probably considered by them to be a low one. Again it transpires from the evidence of P.W. 2 that he had at an earlier point been involved in a case of murder and rape. According to him he was acquitted in that case. But what is relevant to note is that he was involved in a murder case and that gives a fair indication that he perhaps was a vile person. In that PWs. 1, 2 and 3 all being Jains, having large holdings giving an indication that they did not relish the existence of the accused in their midst coupled with the fact that on that morning the accused has raised his arm against their servant PW. 7 Shrishyla, therefore in all probability they had gone there to punish him for his misconduct with reference to their servant PW. 7. It is in such situation, the incident took place and therefore can it be said that it did not give rise to an apprehension in the mind of the accused that he was quite likely to be manhandled by these was quite likely to be manhandled by these three persons, all of them much younger to him and one of them had even stood trial in a case of murder and rape. The question then is whether the right of private defence when it was available to the accused did he in exercising that right exceeded the limit. We are inclined to think that the prosecution had not been very fair in marshalling facts in support of its case before court. We think some thing more than what meets the eye in this case had actually taken place. The prosecution story is when these three people had just gone there, the accused brought out an axe and had launched into an attack on them. We are not inclined to believe that situation. It may well be that when he was going out of the house he was bearing an axe in his hand being an agriculturist. The hut was actually in the field of the accused. Therefore there was nothing unnatural if the man was carrying an axe in his hand while going out for work in the fields and it is in this situation we think that he has reacted i.e. struck a blow with his axe aimlessly before running away from the place and later in a cooler atmosphere after reflecting over what he had done being sure that his act would invite a severe reprisal from his Jain neighbours he had walked into the safety of the police station, where he would at least be safe from the wrath of the members of Jain community. This appears to be the situation when looked from the stand point of the injuries sustained by the accused. P.W. 1 had only one injury on the left arm and on the left eye-brow. P.W. 2 had a severe injury on parietal region and a simple injury on the two arms, the deceased appears to have sustained a serious injury. Imagine a situation of being confronted by three physically well-built persons and probably fearing the warst for himself in the light of the morning’s incident, he had attacked the more with a view to neutralise them so that he could get away from them and in that process he appears to have taken a wild swipe at all of them, one of such swipes bringing about the death of the deceased. We cannot further reconcile ourselves to the fact the accused had exceeded the limit in exercise of the right of private defence. It is not necessary for us to go over the situation blow by blow and we cannot also be expected to measure the force expended in golden scales. If the man feared for his life and left with no other option after having smelt the impending disaster acted quickly more in order to save himself than with the object of hurting the deceased and his companions. We think if this be the true reading of the situation on that day the accused cannot be said to have exceeded his right of private defence in the facts and circumstances of the case to which we have adverted to supra. He hold therefore that the accused had rightly exercised his right of private defence. The occasion for it having clearly arisen and in availing of that right he had not exceeded the same.
In the result, the appeal succeeds and is allowed. The judgment of the learned Sessions Judge convicting the appellant for the offences punishable u/Ss. 302, 326 and 324, IPC and the sentence of imprisonment for life as also all other sentence imposed on him shall stand set aside. The accused who is in Jail is ordered to be set at liberty forthwith.
29. Appeal allowed.