PETITIONER: NARAIN SINGH Vs. RESPONDENT: STATE OF PUNJAB DATE OF JUDGMENT: 21/08/1962 BENCH: ACT: Criminal Trial-Murder-Prosecution evidence discarded- Conviction on statement of accused-Statement pertly exculpatory and partly inculpatory-lf must be used as a whole-Code of Criminal Procedure, 1898(Act V of 1898), s. 342. HEADNOTE: The appellant and three others 'were charged with the murder of B. The prosecution case was that there was a dispute between B and the accused over diverting the flow of water in the fields, that the appellant armed with a stick and the others with spear, kaholi and salang assaulted B and B died of the injuries infliced. In his statement under s. 342 Code of Criminal Procedure the appelant stated that B had thrown him on the ground and had 679 attempted to strangulate him whereupon the took out his kirpan and struck B in self defence.- The Sessions Judge disbelieved the prosecution evidence and acquitted the three other accused persons ; but he convicted the appellant under s.304 Part 11 Indian Penal Code relying on a part of his statement in which he admitted having strick blows but rejecting the part that B attempted to strangulate him. He had that the only apprehension which the appellant could have was of simple hurt which did not give him the right to cause the death of B. On appeal the High Court confirmed the conviction. Held, that the conviction of the appellant under s.304 Part 11 Indian Penal Code could not it-and. In convicting the appellant the courts below had accepted A case which was not the case of the prosecution but had relied only upon a part of the statement of the appellant made in his defence. It was not open to the courts to dissect the statement and to pick out the incriminating part and to reject the excul- patory part on the ground that it was not supported by evidence. If in his statement the accused confesses to the commission of the offence charged he may be convicted upon that confession, but if he does not confess and sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement can only be taken into consideration in its entirety. Taking the statement of the appellant in its entirety, he had an apprehension that B was attempting to strangulate him and this gave him the right of defence of person extending even to causing the death of the assailant. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 218 of
1959.
Appeal by special leave from the Judgment and order dated
September 8, 1959, of the Punjab High Court in Criminal
Appeal No.354 of 1959.’
Frank Anthony, K. C. Agarwala and P. C. Agarwala for the
appellant.
B.K. Khanna and P. D. Menon, for the respondent.
1962. August 21. The Judgment of the Court was delivered
by
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SHAH, J.–After arguments were concluded in this appeal we
ordered that the appellant Narain Singh be acquitted of the
offence under s. 304 Part II of the Indian Penal Code of
which he wag convicted and the sentence passed on him be set
aside. We proceed to set out our reasons in support of the
order.
Narain Singh and his three nephews-Mehar Singh, Mewa Singh
and Pakhar Singh-were tried before the Court of Session,
Ludhiana for offences punishable under s. 302 read with s.
34. of the Indian Penal Code, on the charge that on October
31, 1958, they had in furtherance of their common intention
caused the death of one Bachan Singh by making a murderous
assault on him.
The prosecution case was that in the evening of October 31,
1958, when Narain Singh and his three nephews were
irrigating their field, Bachan Singh diverted the flow of
water into his own filed. Narain Singh and his nephews were
thereupon enraged, and there was a quarrel between them and
Bachan Singh. Narain Singh and his nephews made an attack
upon Bachan Singh with a kaholi, caused him serious
injuries. According to the prosecution, Mehar Singh at the
time of the assault was armed with a spear, Pakhar Singh
with a Kaholi, Mewa Singh with a salang and Narain Singh
with a stick. A Complaint was lodged about the assault with
the Notice, and Bachan Singh was removed to the Civil
Hospital, Ludhiana. The Sub-Inspector of Police
investigating the case recorded the statement of Bachan
Singh, and a First Class Magistrate of Ludhiana recorded his
declaration on the evening of November 2, 1958. Bachan
Singh died on November 3, 1958.
Narain Singh and his nephwes were then prosecuted before the
Court of Session Ludhiana for the offence of murder. At the
trial, Narain
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Singh-pleaded that he bad acted in exercise of the right of
self defence and had caused injuries ‘to Bachan Singh
because the latter had thrown him down and had attempted to
strangulate him. His statement in the Court of Session, on
which he was convicted, was as follows :-
“The correct facts are that when I objected
to the deceased cutting the nakka he caught
hold of me and threw me on the ground. I was
alone at the time. The other three co-accused
were not with me. After I had fallen on the
ground the deceased attempted to strangulate
me. I was then wearing small kirpan. I
unsheathed it and used it in self defence
causing a couple of injuries to the deceased
on the alarm raised by me, Mehar Singh (my co-
accused) who was coming from the khal nearby,
came to the spot and rescued me. He was
armless and did not cause any injury to the
deceased. I did not carry any stick but was
wearing a small kirpan as usual.”
Pakhar Singh and Mews Singh denied their presence at the
scene of offence. Mehar Singh claimed that he was present
at the scene, and he had tried to intervene and separate
Bachan Singh and Narain Singh. Narain Singh and Mehar Singh
relied upon the circumstance that they also bad injuries on
their person which were noticed when they were medically
examined. Narain Singh had six contused injuries and Mehr
Singh had one incised injury and four abraded contusions.
Before the Court of Session, Jagir Singh-a witness for the
prosecution made important variations in his story as
originally related by him in his complaint at the police
station. Kaka, who, it was claimed by the prosecution, was
an eye-witness, did not support the case for the
prosecution. Hakku, another witness, was
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not examined by the prosecutor, but was merely “‘tendered
for cross-examination”. One Johri whose name was not
mentioned in the complaint was also examined by the
prosecutor. Two statements of Bachan Singh which were in
view of his’ death admissible as dying declarations-one
recorded by the Investigating Officer and the other by the
First Class Magistrate, Ludhiana-were also tendered in
evidence. The Sessions Judge held that the evidence of
Jagir Singh was unreliable and That Johri could not have
witnessed the assault. The two dying declarations were. in
the view of the Judge, unreliable, for Bachan Singh had
before he made the statements ample opportunity to know how
the investigation was proceeding, had consulted Jagir Singh
and had opportunity of discussing with him the case to be
set up. Again, the story set up in the dying declarations
furnished no explanation of the injuries received by Narain
Singh and Mehar Singh. The medical evidence was also not
helpful to the case for the prosecution. Bachan Singh had
four incised injuries on his person, three on the cheat, and
the fourth on the ,,ring finger left side”. None of these
injuries could be caused with a salang or a kaholi: the
incised injuries could be caused by a spear and also by
kirpan. Therefore in the view of the Sessions Judge the
oral and other evidence was insufficient to sustain the
charge of .murder against the three nephews of Narain Singh.
Relying, however, upon the statement made by Narain Singh he
held that the injuries on the person of Bachan Singh were
caused by the former. He observed that the marks of
injuries on the person of Narain Singh “bore out his
suggestion that Bachan Singh had obtained strong hold upon
him with a view to strangulate him”.’ But there was not an
iota of evidence on the record to’ prove that Bachan Singh
had attempted to strangulate him”. In the view of the
Sessions Judge
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there being no marks of injury, however slight, around the
throat of Narain Singh and that he had not made a complaint
to the medical officer who had examined him shortly after
the assault “it was apparent that Narain Singh could have no
apprehension of death or grievous hurt.
x x x x x
The only apprehension which Narain Singh had was simple hurt
and this certainly gave him no right to take the life of
Bachan Singh.” The Sessions Judge, therefore, hold that
Narain Singh was justified in resisting Bachan Singh in
exercise of the right of defence of person, but was not
justified in using “‘the kirpan in such a. manner and with
such-force as to cause the death of Bachan Singh by piercing
one of his lungs”. The Sessions Judge accordingly acquitted
Mewa Singh, , Mehar Singh and Pakhar Singh of the offence
charged and convicted Narain Singh of the offence punishable
under a. 304 Part Tr of the Indian Penal (ode and sentenced
him to suffer rigorous imprisonment for five years.
Against the order of conviction and sentence Narain Singh
preferred an appeal to the High Court of Punjab. The High
Court agreed with the view of the Sessions Court that the
evidence was insufficient to establish the case for the
prosecution, the High Court also held that the Sessions
Court was justified in relying upon the statement made by
Narain Singh under s. 342 of the Code of Criminal Procedure
and in holding that Narain Singh “had exceeded the right of
self-defence by causing the death of Bachan Singh by
stabbing him with a kirpan. had committed an off-nee
punishable under s-304 part 11 Indian Penal Code. The High
Court, however, reduced the sentence imposed upon Narain
Singh to rigorous imprisonment for 3 years and subject to
that modification dismissed the
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appeal against the order of conviction and sentence. With
special leave Narain Singh had appealed to this Court.
The case for the prosecution was that Narain Singh, when he
participated in the assault on Bachan Singh, was armed with
a stick. but the evidence of the witnesses about the assault
on Bachan Singh has not been accepted by the Court of
Session and the High Court. In the view of the Courts
injuries on the person of Bachan Singh were caused by Narain
Singh by striking him with a kirpan, and the three nephews
of Narain Singh had not participated in the assault. In
finding Narain Singh guilty of the offence under s.304 Part
II for causing injuries to the victim Bachan Singh with a,
kirpan the Court of Session and the High Court have accepted
a case which was not the case of the prosecution, but have
relied only upon the statement Narain Singh made in his
defence. Under s.342 of the Code of Criminal Procedure by
the first subsection, insofar as it is meterial, the Court
may at any stage of the enquiry or trial and after the
witnesses for the prosecution have been examined and before
the accused is called upon for his defence shall put
questions to the accused person for the purpose of enabling
him to explain any circumstance appearing in the evidence
against him. Examination under s.342 is primarily to be
directed to those matters on which evidence has been led for
the prosecution to ascertain from the accused his version or
explanation-if any, of the incident which forms the subject-
matter of the charge and his defence. By sub-s. (3), the
answers given by the accused may “be taken into
consideration” at the enquiry or the trial. If the accused
person in his examination under 9.342 confesses to the
commission of the offence charged against him the court may,
relying, upon that confession, proceed to convict him, but
if he does not confess and in
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explaining circumstance appearing in the evidence against
him sets up his own version and seeks to explain his conduct
pleading that he has committed no offence, the statement of
the accused can only be taken into consideration in its
entirety. It is not open to the Court to dissect the
statement and to pick out a part of the statement which may
be incriminative, and then to examine whether the
explanation furnished by the accused for his conduct is
supported by the evidence on the record. If the accused
admits to have done an act which would but for the
explanation furnished by him be an offence, the admission
cannot be used against him divorced from the explanation.
The courts below were of the view that the prosecution
evidence as it stood, was insufficient to bring home the
charge against Narain Singh and his nephews. The case for
the prosecution that Narain Singh was armed with a stick and
joined in the assault upon Bachan Singh was sought to be
established by affirmative evidence. The case failed
because the evidence in support of the case was unreliable.
Narain Singh admitted that he had caused injuries to Bachan
Singh with a Kirpan carried by him, but he explained that
lie caused the injuries when he was thrown down and Bhchan
Singh was attempting to strangulate him. There can be no
doubt that if a person reasonably apprehends that his
assailant is attempting to strangulate him, exercise of the
right of defence of person extends even to causing death of
the assailant. Narain Singh pleaded that he had fallen down
and Bachan Singh attempted to strangulate him and therefore
he caused injuries to Bachan Singh in exercise of the right
of self defence. This plea had to be considered as a
composite plea., it was not open the court to investigate
whether Narain Singh could have reasonably apprehended such
injury to
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himself as justified him in causing the death of Bach-in
Singh. Where a person accused of committing an offence sets
up at his trial a plea that he is protected by one of the
exceptions, general or special, in the Indian Penal Code, or
any other law defining the offence the burden of proving the
exception undoubtedly lies upon him. But this burden is
only undertaken by the accused if the prosecution case
establishes that in the absence of such a plea he would be
guilty of the offence charged. The prosecution case,
however, did not by reliable evidence establish
affirmatively that Narain Singh had done any act which
rendered him liable for the offence of murder. His
responsibility, if any, arose only out of the plea raised by
him: if the plea .amounted to a confession of guilt the
court could convict him relying upon that plea, but if it
amounted to admission of facts and raised a plea of justi-
fiction, the court could not proceed to deal with the case
as if the admission of facts which were not part of the
prosecution case was true, and the evidence did not warrant
the plea of justification.
The courts below were, therefore, in our judgment, in error
in convicting Narain Singh of the offence under s.304 Part
II of the Indian Penal Code.
Appeal allowed.
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