JUDGMENT
S.K. Jain, J.
1. This criminal appeal is directed against the judgment of conviction and order of sentence both dated 9-7-1987, passed by Sri R.C. Agarwal, IInd Additional Sessions Judge, Deoria, whereby the appellants Shiv Chand and Prabhu Dayal were convicted and sentenced as under and Brij Raj and Sahebzada were acquitted:
Accused Conviction Sentence 1. Shiv Chand, son of Brij Raj, Under Section 302,I. P. C. Life Imprisonment aged 52 years, resident of Aurawa, P. S. Hata, District Deoria. 2. Prabhu Dayal, son of Saha- Under Section 302 read with Life Imprisonment. bzada, r/o village Aurawa, Section 34, I.P.C. P. S. Hata. Distt. Deoria.
2. The facts of this case as revealed in the testimony of there eye-witnesses, namely, Dagroo, P.W.I, Smt. Barfi, P. W. 3 and Billar, P.W. 4 are that that the accused Brij Raj and Sahebzada were cousins. Sheo Chand accused is the son of Brijraj accused, Whereas Prabhu Dayal accued is the son of Sahebzada accused. During rainy reason the Garhi situated in the path on the eastern side of the house of Prabhu Dayal is flooded. The said path is also flooded. Therefore the residents of the village use the narrow path which passes in front of the house of Brijraj accused. A wordy duel took place between the parties five or six months prior to the occurrence. During the course of that duel the accused had threatened that they will break of their hands and feet if they passed through the path in front of their house. For this reason members of the complainant’s party had stoppeld using the party running in front of the house of the accused. On 16-10-1975 at about 11 A.M. Kamlesh, the grand-son of Sukhram deceased and son of the brother of Dagroo, P.W. I had passed through the passage in front of the house of the accused Brijraj. Shiv Chand accused gave him 2-3 slaps. Kamlesh went to his mother while crying. His mother while standing on the corner of the house of Billar lodged a protest with Shiv Chand. Thereupon all the four accused persons namely, Shiv Chand, Brijrai. Prabhu Dayal and Sahebzada abused her. On hearing the noise Dagroo, his father Sukhram (since deceased), Manger, son of Phagoo, Ram Lachan and Gabbu reached there and scolded the accused. Sukhram protested that it was they who had beaten up Kamlesh and now they were abusing them. Thereupon Prabhu Dayal Accused brought a Ballam from his house and handed it over to Shiv Chand. Then all the accused opened an attack on the complainant party while they were retreating. Shiv Chand dealt Ballam blow on the person of Sukhram. P.W. 1 Dagroo, one of the members of the com- plainant party had wielded a Danda which he had lifted from the house of Billar. The Ballam blow had hit Sukhram on his chest as a result whereof he fell down and died at the spot. After the occurrence the accused had made good their escape. The dead body of Sukhram was removed to Police Station Hata. Dagroo, P.W. 1 lodged the F.I.R. Ext. Ka-1 in the Police Station.
3. P.W. 5 Head Moharrir Balmiki Singh recorded the F.I.R. at 3.10 P.M. in the Police Station. At 4.30 P.M. on 16-10-1975 the Station House Officer Arvind Misra received the information of lodging of the F.I.R. At that time he was in Hata Bazar. Hurriedly he reached the police station and found the dead body of Sukhram there. He prepared the inquest report Ext. Ka-5 and caused the dead body to be sent for post mortem examination under the guard of constable Muslim. P.W. 7 Gaya accompanied the dead body for identification.
4. Post mortem examination on the dead body of Sukhram was performed by P.W. 2 Dr. T.P. Sharma in the district Hospital, Deoria at 10.30 A.M. on 17-10-1975 vide Post Mortem report Ext. Ka-2. The autopsy surgeon found a stabbed penetrating wound 3/4″ x 1/2″ x chest cavity deep 21/2″ below the supra sternal notch just away from midline on left side, spindle shaped with clean cut margins. Direction of the wound was form front to backward and down- ward. Under the wound 1 1/2″ long oblique fracture of body of sternum was found.
5. On internal examination the Doctor found that pericardium below the above injury was ruptured. This cavity was full of semi liquid blood. Ascending Aorta was punctured on the front side measuring about 1 1/2 ” x 1/4″ near the commencement of the arch of aorta. Two ounces of semi digested food was found in the stomach. Small intestine contained faecal matter whereas large intestine was empty.
6. The autopsy surgeon opined: (i) that the death could have been caused at about 12 noon on 16-10- 1975 by spear; (ii) the death was caused due to shock and haemorrhage as a result of the injury which was sufficient to cause the death in ordinary course of nature.
7. The Investigating Officer Sri Arvind Misra, P.W. 6 on receipt of the post mortem report recorded the statements of P.Ws. on 27-10-1975. Since the accused Shiv Chand and Sahebzada has surrendered in the court on 22-10-1975 and 24-10-1975 respectively, they were arrested. On 9-12-1975 he recorded the statements of some of the prosecution witnesses. After completion of investigation and other formalities he submitted charge sheet Ext. Ka-11 on 9-12- 1975.
8. In order to prove its case before the trial court the prosecution examined eye-witnesses P.W. 1 Dagroo, son of the deceased, P.W. 3 Smt. Barfi, wife of Magroo, the second son of the deceased, P.W. 4 Billar, the neighbour of the deceased. Dr. T.P. Sharma, the autopsy surgeon was examined as P.W. 2. Head Moharrir Balmiki Singh who recorded the chik report had stepped in the witness box as P.W. 5. Gaya, P.W. 7 had accompanied the dead body to mortuary. P.W. 6 Arvind Misra is the investigating officer of this case. He has proved various steps that he took in the progress of investigation. After the close of prosecution case the statement of accused under Section 313, Cr.P.C. was recorded. They denied all the incriminating material appearing against them and took the plea of self defence. When called upon to enter upon their defence, the accused chose to lead no evidence in defence.
9. The trial court believing the ocular account given by Dagroo, Smt. Barfi and Billar corroborated by the medical evidence, convicted the accused Shiv Chand and Prabhu Dayal as mentioned above. He, however, acquitted Brijraj and Sahebzada accused. Shiv Chand accused was sentenced to undergo life imprisonment under Section 302, I.P.C. whereas Prabhu Dayal Accused was sentenced to life imprisonment under Section 302 read with Section 34, I.P.C. It is that judgment of conviction and order of sentence both dated 9-7-1980 which has been challenged in this appeal by Shiv Chand and Prabhu Dayal, Convicts and which requires our scrutiny for its sustainability.
10. We have heard he learned counsel for the parties and with their help have scrutinized the evidence on record.
11. From the trend of cross-examination of the eye witnesses and the statement of accused under Section 313, Cr.P.C. it is evident that the date, time and place of occurrence is not denied by the defence. It is the manner of occurrence which has been disputed. The defence version as given by Brijraj, accused in reply to question No. 20 is that Dagroo and Sukhram caused injuries to him and then his son had dealt a Ballam blow on the person of Sukhram deceased in self defence.
12. In order to find out as to which of the versions is established, we have surgically scrutinized the statements of the eye-witnesses. We find that all the three witnesses have consistently supported the prosecution version as mentioned in the earlier part of this judgment. Each one of them was subjected to lengthy and sifting cross-examination but no dent in their testimony could be created. They remained consistent on all the material points and have testified that the mother of Kamlesh lodged a protest with Shiv Chand for having given slaps to Kamlesh and all the four accused persons abused her. Being attracted by the noise, Sukhram and his son Dagroo along with Mangar and Billar etc. arrived at the spot, scolded and advised the accused. When Sukhram protested against the behaviour of the accused, Prabhu Dayal accused brought a Ballam from his house and handed it over to Shiv Chand who dealt a blow with it on the person of Sukhram thereby causing injury on his chest as a result whereof he died on the spot. The testimony of the autopsy surgeon Dr. T.P. Sharma, P.W. 2 lends support to the above ocular account given by the three eye-witnesses. It has come in his testimony that the penetrating stab wound which has been described earlier and which he found on the chest of the deceased could be caused by a spear at about 12 noon. on 16-10-1975. Underneath the wound he had found that the body of sternum had oblique 1 1/4″ long fracture. The pericardium below the injury had been ruptured. Ascending Aorta had been punctured on the front side.
13. It has been argued on behalf of the appellants that no independent witness has been examined by the prosecution and the conviction of accused could not be recorded on the basis of statements of highly interested witnesses. We do not find any substance in this argument. Dagroo and Smt. Barfi are none else, but the son and wife of the other son of the deceased. They would normally be most reluctant to spare the real assasilant and falsely name another person. In a murder case it is an error to reject the evidence of witnesses on the ground that they are related to the deceased. The mere fact that the witnesses are the close relatives of the deceased is all the more a good ground for believing their statement. The third eye witness Billar, P.W. 4 is from independent source and a natural witness. He is not related to either of the parties. An examination of rough site plan Ext. K-10 Shows that his house is situated on the western side of the path and the place of occurrence. He was expected to be there in natural circumstances. There is no material on record to show that he was in any way interested to falsely implicate the accused persons or was inimically disposed towards them. Even no suggestion was put to him that he had any bias against the accused. Usually, if not invariably, the conviction in a criminal trial rests on the direct testimony and credibility and acceptability thereof. As in the present case it is primarily the unimpeachability of the evidence of P.W. 1 Dagroo, P.W. 3 Smt. Barfi and P.W. 4 Billar coupled with the medical evidence comprised of the testimony of the autopsy surgeon Dr. T.P. Sharma, P.W. 2 which forms the core of the prosecution case. The above said direct testimony of the three eye-witnesses is credible and unimpeachable and in our view is sufficient to establish the charge and a consequent conviction. It is now well settled that the trial of offences and their punishment is a matter of substance which turns on the right and credibility of direct evidence.
14. After the initial burden to establish its case beyond reasonable doubt against the accused resting on the prosecution is discharged, the question doing rounds right now is whether the burden to establish circumstances leading to exercise of the right private defence which rested on the defence has been discharged by it by adducing direct evidence or by estabishing probabilities with regard to the circumstances pleaded by it. As mentioned hereinbefore, the defence has led no direct evidence whatsoever. Now for this purpose it has be seen whether the answers elicited from the prosecution witnesses, defence statements and probabilities of this case go to show that the accused had caused the injury leading to the death of the deceased in exercise of private defence.
15. From the evidence on record it is clear that it was Kamlesh, grand son of the deceased, who had passed through the passage in front of the house of the accused in spite of the fact that they had threatened the complainant party that they will break their bones if they use the path. When Kamlesh on receipt of slaps at the hands of Shiv Chand went to his mother, it was she who instead of informing the head of her family or the male members of the family took it on herself to lodge the protest with Shiv Chand in spite of the fact that relations between her family and that of the accused were strained. She was so much dare devil that she had gone near the house of the accused and while standing on the corner of the house of Billar remonstrated before Shiv Chand. Not only this when the accused abused, her the deceased along with his son Dagroo, Billar and others had gone there and scolded the accused. In his cross-examination, P.W. 1 Dagroo has admitted that he had lifted lathi lying near the blind mother of Billar and had wielded it. A blow thereof had landed on the person of Brijraj who had fallen down. Smt. Barfi in her cross-examination had admitted that her father-in-law had also used lathi during the course of occurrence. Thus it is evident that members of the accused party would have not come in the way of the complainant party had they not gone near their house purposefully. Brijraj accused had been medico legally examined by Dr. A.N. Singh and the injury report prepared by him has been exhibited as Ext. Kh. 1 on record as the genuineness of this document and factum of injuries has been admitted on behalf of the prosecution. A perusal of the said injury report shows that there were following injuries on the person of this accused:
Lacerted wound 3 1/2 cm x 1/2 cm x skin deep on the interior part of root side of scalp with ill defined swelling around it.
(ii) Contused swelling 5 cm x 3 cm with redding of the skin of the left eye lids pinkish.
(iii) Contusion 6 cm x 2 1/2 cm over the right asidle behind right Ant fold over the chest.
(iv) Contused swelling over the back of left palms.
16. According to the opinion recorded by the Doctor on this injury report, the above injuries could be caused by a blunt weapon.
17. Such an assault on the person of Brijraj could reasonably cause apprehension in the mind of the accused that the death of injured will otherwise be consequence of such assault. Therefore, the. case of the accused is certainly covered under the provisions of Section 100 (Secondly). Under these circumstances the law authorised the accused Shiv Chand who was the son of Brij Raj and who was under reasonable apprehension that the life of his father was in danger or at least the body of his father was in the risk of grievous hurt, to cause the injury on the person of the assailant of his father. Therefore, the question as to whether the right of private defence had accrued to the accused is answered in affirmative.
18. The next question is as to whether this right extended to causing of the death of the deceased. Learned counsel for the State has vehemently argued that in view of the provisions of Section 102, I.P.C. and the nature of injuries on the person of Brijraj having been caused by lathi, it can covneniently be concluded that the accused had exceeded the right of private defence, inasmuch as the Bhala was used thrust wise although it could also be used lathi wise. This argument attractive at first sight is, in our opinion, not tenable on the sound appreciation of evidence on record and law on the subject. According to Section 102 of the I.P.C. 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 comit the offence, though the offence might not have been committed and such right continues as long as such apprehension of danger to the body continues. The threat, however, must reasonably give raise to the person an imminent and not remote and distant apprehension of danger. This right rests on the general principle that where a crime is endeavoured to be committed by force, it is lawful to repel that force in self defence. To say that the appellant could only claim the right to use force after Brijraj had sustained serious injuries by a wrongful assault is complete misunderstanding of the law embodied in the above section. The right of private defence is available for protection against apprehended unlawful aggresssion and not punsihing the aggressor for the offence committed by him. It is a preventive and not a punitive right. Right to punish the commission of an offence vests in the State which has a duty to maintain law and order and not in private individuals. If after sustaining serious injury there is no apprehension of further danger to the body, then obviously the right of private defence would not be available. In our view, therefore, since the appellant reasonably apprehended danger to the body of Brijraj, he got the right of private defence and he used adequate force against the wrongful aggressor in exercise of that right. As mentioned hereinbefore, the party of the complainant had deliberately come near the house of the appellants and had scolded them. As noticed hereinbefore, it has come in the testimony of Dagroo, P.W. 1 that he had lifted the Danda of the blind mother of Billar, P.W. 3 and had hurled a blow with it which had landed on the head of Brijraj who had fallen on the ground. A perusal of injury report. Ext. Kha-1 shows that there was lacerated wound 3 1/2 cm x 1/2 cm x skin deep on the interior part of root side of scalp, which goes a long way to show that it must have profusely bled. So the appellant would reasonably apprehend the imminent danger to the body of his father Brijraj. He was thus fully justified in using force to defend his father against apprehended danger which was manifestly imminent. The argument that because the complainant party had used lathi the appellant was not justified in using spear, is misconceived and un- supportable and not acceptable. During the course of assault like a person using a lathi on the head of Brijraj may very well give rise to reasonable apprehension that the death or grievous hurt would result from the injury caused thereby. The provisions of Section 100 (Secondly) of the I.P.C. have to be taken into account. We do not have any evidence about the size or nature of the lathi. The blow, it is known, was aimed at a vulnerable part like the head. A blow by the lathi on the head may prove instantaneously fatal. Therefore, when a blow with a lathi is aimed on the head, which is a vulnerable part of the body of Brijraj, we are unable to hold that the appellant was not justified in using spear in defending his father, In such moments of excitement or disturbed mental equilibrium it is somewhat difficult to expect parties facing grave aggression to coolly weigh, is if an golden scales, and calmly determine with a composed mind as to what precise kind and severity of blow would be legally sufficient for effectively meeting the unlawful force which was being used. The trial Court seems to be aware of this aspect because the other accused persons Brijraj and Shahzade were acquitted. But while dealing with the appellant Shiv Chand curiously enough the learned trial Court has denied him the right of private defence presumably on the sole ground that he had given a dangerous blow with considerable force with a spear on the chest of the deceased, though his father Brijraj had only received superficial lathi blow on his head. This view is not only unrealistic and impratical but also contrary to law and indeed even in conflict with the well settled proposition that in such cases the matter cannot be weighed in golden scales. Presumably the learned trial Court seems to have implied that Shiv Chand, the appellant should have used spear as lathi and not the spearhead for defending his father or should have given a less forceful thrust of spear on less vulnerable part of the body of the deceased and not on the chest in order to be within the legitimate limits of the right of private defence. This as already stated, is an erroneous approach because at such moments an average human being cannot be expected to think calmly and control his action by weighing as to how much injury would sufficiently meet the aggressive; designs of his opponent. As a result there is clear miscarriage of justice.
19. On this point if any judgment is required reference can be had to the ratio laid down in Deonarain v. State of U.P., .
20. For the foregoing reasons it is held that Shiv Chand appellant has caused the injury on the chest of. Sukh Ram with spear which resulted in his death in the exercise of the private defence of his father Brijraj. His conviction and sentence is, therefore, set aside. He is acquitted of the charge under Section 302, I.P.C.
21. Since the principal accused Shiv Chand has been acquitted of the charge under Section 302, I.P.C. the conviction of Prabhu Dayal appellant under Section 302, I.P.C. with the aid of Section 34, I.P.C. is also set aside. He is also acquitted of the charge.
22. Both the accused are on bail. Their bail bonds and sureties are discharged. They be set at liberty forthwith, of course, if not required in any other case.