JUDGMENT
S.B. Roy, J.
1. By this appeal the appellant Shri Girish Saikia seeks to challenge the judgement dated 5-5-88 passed by the learned Sessions Judge, Sonitpur, Tezpur in Sessions Case No. 147(S)/85 convicting the appellant under Section 304, Part II, I.P.C. and sentencing him thereunder to suffer R.I. for 10 years.
2. The prosecution case, in short, is that on 14-5-82 one Shri Lila Kanta Bora (P.W. 1) lodged a complaint at Chatia Police Station alleging, inter alia, that on 14-5-82 one Shri Gayan Bora and Shri Jiten Bora came and reported him that the appellant had assaulted his father (since deceased) and inflicted some injury. On receipt of the said information, P.W. 1 and 10/12 other villagers, including the persons mentioned therein, went to the house of the appellant and upon reaching there found that the deceased was lying on a bed and bleeding from his head. It was further stated in the said complaint that they found injury on the head of the deceased. Within about 10 minutes of the arrival of the P.W. 1 and other villagers in the house of the appellant, deceased succumbed to his injury. Thereafter being asked by P.W. 1 and other villagers as to how the incident occurred, the appellant informed them that in the previous night of 13-5-82 at about 11 p.m. he had an altercation with his father over some domestic matter and that the appellant struck his father (since deceased) on the head with a piece of bamboo.
3. On the basis of the said complaint, an FIR was registered at the said police station and after completion of the investigation, police submitted charge-sheet against the appellant under Section 302, IPC. In due course of time the case was committed to the Court of Sessions Judge. The Sessions Judge on perusal of the material on records, framed charge under Section 302, IPC against the appellant to which the appellant pleaded not guilty. In course of the trial, prosecution examined seven witnesses and defence examined none. On conclusion of the trial, the appellant was convicted and setenced, as already stated.
4. Mr. P. K. Tewari, learned Amicus Curiae submitted that no eye-witness was examined in this case. The impugned judgement is entirely based on confession made by the appellant which was recorded by the judicial Magistrate and some extra judicial confession stated to have been made by the appellant to some of the witnesses viz., P.Ws. 1, 4 and 6. Apart from this, there is absolutely no evidence on record to implicate the appellant with this case. Mr. A. Ahmed, learned Public Prosecutor also does not dispute the aforesaid contention of Mr. Tewari on this point.
5. Mr. Tewari has drawn our attention to the confession of the appellant recorded by the Magistrate (P.W. 2) under Section 164, Cr. P. C. In the confession appellant inter alia, stated that when in the night of occurrence he was asleep, his younger brother Purna Kanta Saikia (not examined as witness in this case) called him and as soon as the appellant woke up, his throat was strangulated by the said Purna Kanta and the appellant was also punched by Purna Kanta. Then the appellant and Purna Kanta got involved in a scuffle. He further stated in his confession that as wife of the appellant failed to separate the two scuffling brothers, she raised alarm calling for help of the neighbours. But none came forward. The two brothers, while scuffling, rolled out of the room and then the appellant somehow could lay his hand on a piece of bamboo and tried to strike his brother with the said piece of bamboo. But suddenly his father (since deceased) arrived there and intervened. The blow was actually aimed to strike the brother of the appellant but accidentaly it fell on the head of the deceased. He further stated that he never intended to strike or do any harm to his father. As a result of this, father of the appellant got an injury to which he ultimately succumbed in the next morning. The appellant further stated that he did not give more than one blow with the said piece of bamboo.
6. Mr. Tewari also took us through the evidence of P.W. 1, P.W. 4 and P.W. 6. These witnesses gave evidence in respect of extra judicial confession said to have been made by the appellant before the learned trial Court that on being asked by him and others appellant told them that during the previous night there was an altercation between him and his father and in course of the said altercation the appellant struck his father with a piece of bamboo. It further appears from the evidence of P.W..1 that there was some dispute between the appellant and his younger brother over their respective share of the paternal property.
7. But the evidence of P.W. 1 on the point of extra judicial confession is substantially at variance with that of P.W. 4 in some particulars. It also substantially differs from the judicial confession of the appellant. P.W. 4 stated in his evidence before the learned trial Court that on being asked by him, appellant told him and other persons present there that in the previous night there was a quarrel between him and his younger brother Purna Kanta Saikia and during that quarrel appellants father intervened when he gave a blow on the head of the father with a piece of bamboo. From the evidence of P.W. 4, it thus appears that the appellant never told in his extra judicial confession that there was any quarrel between him and his father. It further appears from the evidence on record that the younger brother Purna Kanta Saikia used to reside in another home separately from the appellant. Two were also involved in a dispute over the respective shares of their paternal property. Admittedly, the incident occurred in the house of the appellant at almost midnight. It is really mysterious as to why Puna Kanta Saikia came to appellant’s house at that hour of the night when the relation between the two brothers was not at all good in view of the aforesaid dispute.
8. While turning to the evidence of P.W. 6, we find that his evidence on the point of extra judicial confession is exactly similar to that: of P.W. 1. Therefore, evidence of P.W. 6 before the learned trial Court is that appellant was embroiled in an altercation with the deceased when the appellant allegedly struck the deceased with a piece of bamboo on his head. But it appears from his cross-examination that P.W. 6 told investigating officer in his statement under Section 161, Cr. P. C. that he had heard from the appellant that a quarrel took place between the appellant and his younger brother and at that time deceased appeared there when appellant struck the deceased with a; piece of bamboo on his head, as a result of which the father died.
9. We have given our anxious consideration to the evidence of P.W. 1, P.W. 4 and P.W. 6 as regards extra judicial cofession of the appellant and we are constrained to hold that the statements of! these PWs are substantially at variance with each other and from their respective statements to the police. It seems to us more, probable that P.W. 1 and P.W. 6 tried to suppress one material fact that the incident occurred due to altercation/quarrel/scuffling; between the two brothers so that the Court may not accept the plea of the appellant that he was acting in self-defence when he tried to strike his younger brother with a piece of bamboo and accidentally, it fell on the head of the deceased aged about 80/85 years. Furthermore, these witnesses have not reproduced the exact words of the extra judicial confession of the appellant and therefore, it is extremely unsafe to base the conviction of the appellant upon such evidence of extra judicial confession of the appellant. In most cases owing to absence of any writing, exact words in which extra judicial confession was made by the accused cannot be known and might have been misunderstood or may not have been remembered or reported correctly. For these reasons extra judicial confessions are generally not considered very safe unless the witness, reporting can be depended upon from all points of view. We cannot also ignore the tact that the appellant is a rustic and illeterate or at least semi-illeterate villager. He is not expected to know niceties of law. If it is really true that blow, which was administered by the appellant, aiming at his younger brother, by misfortune or accident or mistake fell on the head of his father, he is certainly protected by law. But due to his ignorance of niceties of law, appellant might have had bluntly stated that-due to blow given by him, his father sustained an injury without mentioning other concomitant circumstances under which he gave the blow with a piece of bamboo. So, we cannot rule out the possibility that the appellant might have had made the extra judicial confession but such confession did not disclose full truth of the incident. To the rustic and illeterate appellant, it was the blow which he himself dealt aiming at his brother ultimately fell on the head of the deceased, though by accident or misfortune. So, the appellant took it that it was his blow which was, in the ultimate analysis, responsible for causing injury to his father and consequential death of the deceased and accordingly, made a plain statement, as aforesaid, without divulging other concomitant circumstances under which such blow was given. Therefore, mere omission on the part of the rustic and illeterate appellant to mention the word “accident” and other attending circumstances in his alleged extra judicial confession cannot be a ground for denying him whatever protection he is entitled under the provisions of law.
10. For the aforesaid reasons, we are of the view that the aforesaid extra judicial confession cannot be the basis for conviction of the appellant.
11. P.W. 3, Dr. Dino Bora held the autopsy on the deadbody of the deceased and he found the following injury : –
“One lacerated wound, size being 21/2″ x 1/2” x scalp deep, on scalp over the left temporal skull. Scalp hair around the wound matted together due to dried up blood clot.
No other injuries seen.”
From the evidence of P.W. 3, it appears that the deceased was aged about 80/85 years.
12. Therefore, medical evidence, lends sufficient corroboration to the statement made by the appellant in his judicial confession.
13. Further facts that the incident occured in the house of the appellant at almost midnight when the appellant was asleep and that there is absolutely no explanation from the side of the prosecution as to why at that hour of the night Purna Kanta Saikia went to the house of the appellant, more particularly when relation between the two brothers was strained over the issue of share of paternal properly, lend ample corroboration to the statement of the appellant in his judicial confession. We have also taken note of the, fact that appellant’s younger brother was not examined in this case was witness. In view of these reasons, we cannot consider the statement made by the appellant in his judicial confession as true.
14. Now the main question in issue in this case is that whether aforesaid act of the appellant as stated by him in his judicial confession has amounted to an offence? In this respect two provisions of I.P.C.. namely; Sections 80 and 106, I.P.C. seem to us to be highly relevant.
15. Section 80, I.P.C. reads as follows : –
” Section 80.- Nothing is an offence which is done by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.
Illustration
A is at work with a hatchet; the head flies and kills a man who is standing by. Here if there was no want of proper caution on the part of A, his act is excusable and not an offence.”
From the above, it is thus clear that nothing is an offence which is done by accident or misfortune and without any criminal intention or knowledge in doing of a lawful act in a lawful manner by lawful means and with proper care and caution. So, in order to attract the protection under Section 80, aforesaid circumstances must be shown to have existed at the time of the incident.
16. Now, from the judicial confession of the appellant it appears that it was almost midnight when appellant was sleep with his wife and at that time his own younger brother, namely, Purna Kanta Saikia entered his room and attacked the appellant. Said younger brother further throttled the throat of the appellant. As a result there was scuffling between the two and appellant’s wife, seeing the life of her husband to be in imminent danger, raised alarm for help of the neighbours. But none came forward to their rescue. Two brothers, while scuffling, rolled out of the room. In a situation like this, appellant surely apprehended that his death would otherwise be the consequence of such assault. Under these circumstances, when the appellant was apprehending his death to be imminent, his right of private defence of the body extended to the voluntary causing of death to his aggressor. Section 100, I.P.C. has given him that right. It is a right which is recognised in all civilised countries. The right of private defence serves social purposes in discouraging prospective criminals and inculcating spirit of courage and, manliness in the citizen of the country. It also discourages cowardice. Law does not expect the citizen to meekly and cowardly flee away in face of danger to their life, body and property. Rather it expects the citizen to resist such aggression manfully and even to cause death of the aggressor in certain circumstances.
17. Appellant was clearly put in such circumstances and accordingly, in exercise of his lawful right in a lawful manner and by lawful means, tried to hit his younger brother with a piece of bamboo. It was midnight. Scene of occurrence was a village house. The house must have been, in all probability, surrounded by trees and bamboo, clumps. So, the scene of occurrence must have been dark. In such a situation, appellant could not be expected to apprehend that in the meantime his old father would come and intervene in the matter. A man facing such an imminent danger to his life, and that too in a dark night, cannot be expected to exercise greater care and caution. In the facts and circumstances of the case, we cannot say that the appellant was acting with any criminal intention or knowledge. Therefore, without any hesitation in our mind we hold that the blow dealt by the appellant with a bamboo, which was aimed at his younger brother, fell on the head of the deceased by accident and misfortune. So, the act of the appellant is fully protected by Section 80, I.P.C. and as such he has committed no offence.
18. The appellant is not only protected by Section 80, I.P.C, he is protected also by Section 106, I.P.C, Section 106, I.P.C. readsas follows : –
“Section 106;- If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be situated that he cannot effectually exercise that right without the risk of harm to an innocent person, his right of private defence extends to the running of that risk.
Illustration :
A is attacked by a mob who attempt to murder him. He cannot effectually exercise his right of private defence without firing on the mob and he cannot fire without risk of harming young children who are mingled with the mob. A commits no offence if by so firing he harms any of the children.”
From the above, it is clear that if in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without the risk of harm to an innocent person, his right of private defence extends to the running of that risk. Appellant’s case is much better situated here. After all in the instant case the appellant in the exercise of his right of private defence did not deliberately run the risk of harming his innocent father because he did not know at all that his father would suddenly intervene at that particular moment when he tried to deal a blow on the head of his brother. After he released the said blow, appellant had no means to withdraw the same to avoid any injury to his father. In these circumstances appellant could perhaps realise intervention of his father only after the blow fell on the head of his father instead of falling on his initial target, namely, his younger brother. Under Section 106, I.P.C., in similar circumstances, a defender is protected when he exercises his right of private defence even after knowing that such exercise may even harm an innocent person. In the instant case, appellant had no means to know that when he was acting in self-defence, it was likely to harm his father. Therefore, in the circumstances of the case, it is apparent that the case of the appellant was much better situated than those cases covered by Section 106, I.P.C.
19. When the villagers came to the house of the appellant in the next morning, they found that the deceased was till then alive and was lying on a cot and the appellant was nursing him as a son is expected to do to his father in the true tradition of the Indian Society. From this evidence, we are doubly satisfied that the appellant had absolutely no intention to harm his father. But as the misfortune would have it, deceased ultimately succumbed to his injury.
20. In view of the peculiar facts and circumstances of the case, we have no hesitation in our mind to hold that the appellant has not committed any offence under any provision of penal law of the land.
21. Appellant was convicted way back in 1988, and since then he is in jail without any break whatsoever. This appeal was filed way back in 1988. Yet we could not dispose of his appeal for these long 5 years nor could grant him bail, since no application for bail was filed and we cannot grant bail on our own. Appellant has already suffered incarceration for long 5 years. This is virtually the major part of the punishment imposed upon the appellant. We do not know what has happened to his wife and children, if he had any. Though we have already held that the appellant has not committed any offence whatsoever, yet this possibly cannot wash out the social stigma from which the appellant has to suffer throughout his whole life that he is killer of his own father. We have nothing to offer by way of consolation to this wretched man. We are equally unable to compansate the appellant for these sufferings and ordeal through which he had to pass for these long 5 years because of this most unjust conviction and sentence, except to express our deep anguish and shock.
22. Appeal is, accordingly, allowed and the impugned judgment is set aside and we direct that the appellant shall be set at liberty forthwith.