JUDGMENT
K. Lahiri, J.
1. This is an appeal against the conviction of the accused under Section 302 read with Section 34, Indian Penal Code and sentencing each of them to suffer rigorous imprisonment for life by the Sessions Judge, Cachar and Karimganj at Silchar.
2. The prosecution case is that on 4-2-82 in the morning the deceased Basudeo Verma and his brother P.W. 3, Guru Prasad Sonar went to their Sugar Cane cultivation and worked up to 2.30/3.00 p.m. The deceased had a cycle but P.W. 3, Guru travelled a foot. Work over the deceased commenced his homeward journey on bicycle and P.W. 3, Guru Prasad started walking. The witness fell back. On hearing an out-cry, he hastened his strides and saw Subodh Tewari and Arun Balmiki, appellants 1 and 2 respectively assaulting his brother. The witness tried to break in but Arun chased him with a dao. He ran for his life, took refuge on a hillock and noticed the appellants and others going away from the place of occurrence. He lodged an ejahar. The police seized the bicycle of the deceased and his belongings which comprised two daos, “two pieces of lathi” and a lathi made of “Chao tree”. The witness deposed that they had land disputes with Subodh. The witness conceded that the accused persons instituted a cross case against his deceased brother in respect of the occurrence. After the investigation the police submitted a charge-sheet Under Sections 147, 148, 149/302 I.P.C. against six accused persons including the present appellants. The prosecution examined 5 (five) witnesses including two doctors and the Investigating Police Officer. The plea of the present appellants was that they had exercised the right of private defence of person. Learned Sessions Judge rejected the plea of the appellants and convicted them Under Sections 302/34 I.P.C. on the testimony of solitary witness, namely, P.W. 3, Guru Prasad Sonar. However, learned Judge acquitted the other accused of all the charges.
3. The sole contention of Mr. S. K. Homchoudhury, learned Counsel for the appellants is that the appellants had successfully brought home their plea of the right of private defence of persons Under Sections 96, 97 read with Section 100 I.P.C. and in support thereof learned Counsel has put forward his line of argument.
4. The following facts are not disputed by the prosecution (1) that the entire case depends on the sole testimony of P.W. 3, Guru Prasad Sonar, brother of the deceased; (2) that the witness and the deceased had standing disputes with the appellants over some property; (3) that both the accused-appellants sustained injuries at the occurrence for which they had to be hospitalised and treated by the doctor and; (4) that the police found and seized two daos, one with handle and another with broken handle as well as one lathi about 3′ long at the place where the dead body was lying, vide Ext. 3, the seizure list.
5. There can be no dispute that Basudeo Verma died of the injuries sustained by him on 4-2-82, the date of occurrence. The deceased had the following injuries ;
(1) Ante-mortem, fresh, cut injuries, incised-looking lacerated wounds closely placed on top of head slightly to left, four in number, varying in lengths 4″ X 1/2″ X skull deep 4″ X 3/4″ skull deep. 3″ X 1/2″ X skull deep 4″ X 3/4″ X skull deep with signs of heavy to very heavy ante-mortem bleeding.
(2) One punctured ante-mortem wound below right mendible on the upper part of throat 1″ X Gaping X muscle deep but no vital structures cut.
(3) One ante-mortem lacerated wound on right ring finger, nature-grazed lacerated wound.
All the injuries were fresh and ante mortem “caused either by a heavy blunt weapon and/or by not too heavy, not too sharp weapon”, vide P.W. 1, Dr. Haradhan Sanyasi. The witness opined that probably the injuries were inflicted by a very strong person or by more than one person or while the deceased was asleep. Of course, the inference was drawn by the doctor in view of the nature of the injuries. The cause of the death was due to failure of cardio-respiratory system.
6. The doctor stated that the appellant Subodh was an in-patient in Karimganj Civil Hospital and he had to be hospitalised and treated up to 5-3-82. Subodh Tewari had the following injuries ;
(1) Incised wound over upper and, middle part of left for earm of size 4″ X 1/2″ X 1 1/2″.
(2) Incised wound over left hand on radial margin 2″ X 1/2″ x 1/2″.
(3) Incised wound over chest, extending from root of neck, right side of chest, 3″ X 1/2″ X 1/2″.
(4) Incised wound over middle of left clavicle 1″ X 1/2″ X 1/4″.
(5) Radial nerve of left side is partially damaged by injury No, 1 leading to the ability to extend fingers of left hand.
(6) X-Ray shows fracture of left radius at upper end.
So, it appears that Subodh had incised wounds on the left fore-arm, left hand, chest and over centre of left clavicle part. In view of injury No. 1 his radial nerves of left side was partially damaged. He had “a fracture on the left radius at upper end.” According to the doctor the injuries were inflicted by sharp weapon and grievous in nature, vide page-11 of the Paper Book. It follows, therefore, that appellant No. 1, Subodh Tewari sustained fresh incised wounds caused by sharp weapon on 4-2-82 for which he had to be admitted into the Hospital on that day at 9.35 p.m., i.e., soon after the incident. This is the prosecution version. The doctor opined that those injuries might have been caused while warding off an attack. We find from the evidence adduced by P.W. 2, Dr. Rathindra Narayan Paul that appellant No. 2, Arun Balmiki was treated by him on 4-2-82 at 5.30 p.m. He had the following injuries:
(1) One incised wound 2 cm. X 0.25 cm. X 0,2 cm. on the dorsum of the left hand.
(2) One incised wound 2.5 cm. X 0.5 cm. X 0.25 cm. on the back of middle of left pleura.
(3) One bruise 2 cm. X 1 cm. on the inner aspect of lower third of right fore-arm.
The injuries were fresh, simple in nature. Injuries Nos. 1 and 2 were caused by sharp weapon and injury No. 3 was caused by blunt weapon.
Appellant No. 2, Arun Balmiki had to be hospitalised as an indoor patient from 4-2-82 to 16-2-82. On the very same date appellant No. 1, Subodh Tewari also came to the dispensary for treatment and the doctor found incised wounds on his person and referred him to Civil Hospital after rendering some medical aid in the Health Centre.
7. The injuries on the appellants go to show that on 4-2-82 they sustained the injuries by sharp cutting weapons. The injuries on appellant No. 1, Subodh Tewari were grievous and ghastly and the appellant Arun Jalmiki had to be hospitalised for the incised wounds sustained by him. There is, therefore, no escape but to hold that the accused were involved in the episode and sustained the injuries during the incident. The prosecution was fully aware that the accused-appellants sustained the injuries on the very date of the occurrence. There is no evidence to show that those were or could be self-inflicted wounds. We have taken note of the nature of the injuries and have no hesitation in concluding that those were inflicted by someone. P.W. 3, Guru Prasad Sonar deposed that there were three persons besides him present at the place of occurrence, namely, the deceased and the two appellants. The appellants had numerous incised injuries and those on Subodh Tewari were grievous in nature. The plea of the appellants was that the deceased had initiated the attack on Subodh and mercilessly beaten him up. Subodh received multiple incised injuries and at that stage the appellant Arun Balmiki came to his rescue. He was attacked by the deceased. Arun received dao blows and in defence of his person and that of Subodh he dealt the blows on the deceased. Learned Judge held on the evidence of P.W. 3, Guru Prasad, that the appellants had initiated the attack and killed the deceased and rejected the plea of the accused overlooking some telling facts duly established from the facts and circumstances of the case. Before dealing with the rival contentions as to whether the appellants could bring home the plea of the right of private defence of person let us consider how the plea is to be established.
8. What is the nature of proof required to establish a plea falling within the general exceptions contained in Chapter IV of the Indian Penal Code? Is it the statutory obligation of the Court to consider suo motu whether a plea falls within the general exceptions? What is the effect of Section 6 of the Penal Code on Section 105 of the Indian Evidence Act? Is there any conflict, and, if so, is it possible to harmonize them?
Section 105 of the Evidence Act lays down that the burden of proving the “existence of the circumstances” bringing a case of an accused within any of the general exceptions in the Code is upon him and the Court shall “presume the absence of such circumstances” that far and no further. In the instant case, the accused pleaded the right of private defence of his own body and the body of another person. Therefore, the appellants were to establish (1) “the existence of the circumstances” that the deceased had committed “an offence” affecting their body; (2) that the appellants had reasonable apprehension of death or of grievous hurt by the assailant; (3) that there was no time to have recourse to the protection of the public authority; and (4) that they did not inflict more harm than it was necessary to inflict for the purpose of defence. It is well-known that the right of private defence of person 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 it continues as long as the apprehension of danger to the body continues. The burden is on the accused to show “the existence of circumstances” alluded to. The law court is not an unnatural world and it cannot presume the aforesaid circumstances on no material whatsoever. It is for the accused merely to establish the circumstances from which a presumption may be drawn that the accused had the said right. Thus, Section 105 of the Evidence Act calls upon the accused to show that the circumstances bringing the case within the exceptions are present, as the court cannot suo motu presume the “existence of the circumstances”. Section 105, Indian Evidence Act therefore states that the accused is only to show the existence of circumstances and thereupon the court shall consider whether the case attracts the right of private defence or not. The accused may or may not take up the plea specifically. He may bring out the circumstances from the facts and circumstances of the prosecution evidence or by cross-examining the witness or establish the circumstances by adducing evidence. We shall consider in due course the nature of proof to establish the circumstances. However, the Penal Code has interpretation clauses which are keys to the interpretation of the entire Code. Section 6 of “the Code” is an interpretation clause which states that the every definition of an offence or penal provisions including the illustrations contained therein and the penal provisions must be understood subject to the exceptions contained in the Chapter entitled “General Exception” though those exceptions are not repeated in such definitions and penal provisions or illustrations. We extract Section 6 of the Indian Penal Code:
6. Throughout this Code every definition of an offence, every penal provision and every illustration of every such definition or penal provision, shall be understood subject to the exceptions contained in the Chapter entitled “General Exceptions,” though those exceptions are not repeated in such definition, penal provision or illustration.
It is thus seen that the provisions of Sections 299 to 302, I.P.C. are also to be understood subject to the general exceptions though not repeated in those sections. As such, even when the acts of the accused may amount to culpable homicide amounting to murder, the court is statutorily bound to consider the facts and circumstances of the case to ascertain whether any of the provisions contained in the general exceptions is attracted. If the court finds materials to hold that the accused had the right of private defence it should hold that the act of the accused did not amount to any offence. It is thus seen that it is the duty of the court to bear in mind the general exceptions in every definition of an offence, every penal provisions including every illustration. As such, the accused may not take the plea but if the case attracts any of the general exceptions the court must hold that the accused did not commit any offence. We give as example an extreme case where X enters into a room where D was all alone and all other ingress were closed. After sometime X comes out of the room with multiple incised injuries on his person and D is found killed by one blow with a sharp cutting weapon lying by his side. Say, X is mute, cannot write or articulate. What inference should one draw from the fact situation of the case? D was done to death. by one fatal blow, and, therefore, he had inflicted the injuries on X before he received the fatal blow and committed an offence affecting the body of X, that X had reasonable apprehension of death or of grievous hurt by D, that X had to deal the blow to save his life and limb and he had exercised the right of private defence. This conclusion can be drawn by the Court on the authority of Section 6 of the Code even if X does not take up the plea. This appears to be the rationale of Munshiram v. Delhi Administration AIR 1968 SC 702 : 1968 Cri LJ 806; Venkatasiva Subbrayanam v. State of A.P. ; Kishna v. State of Rajasthan, Criminal Appeal No. 23 of 1960, decided on 30-10-1962 (SC) : 1962 SC (Notes) 403; and Rajanikant v. State of Maharashtra , where it has been stated that it is well-settled that even if an accused does not plead self-defence, it is open to the Court to consider such a plea “if the same arises from materials on record”. In Smt. Sandhya Rani Bardhan v. The State 1977 Assam LR 36 : 1977 Cri LJ (NOC) 245, one of us (Lahiri, J) observed that the analogy of estoppel or of the technical rules of civil pleadings is inappropriate as the courts are expected to administer the law of private defence in a practical way with reasonable liberality so as to effectuate its underlying object, bearing in mind that it is a right conferred on the people and pointed out the obligation of the court to consider suo motu the existence of circumstances in support of the plea bearing in mind the provisions of Section 6 of the Indian Penal Code.
9. We, therefore, find that Section 105 of the Evidence Act lays down that the burden is on the accused to prove the existence of the circumstances bringing a case within any of “the general exceptions”. At the same time we find every definition of an offence or penal provision including the illustrations in the Penal Code must be understood subject to the exceptions contained in Ch. IV, I.P.C. We also find that it is a “right of the people” to protect his life and limb and those of the others. The right must be read and understood with reference to Article 21 of the Constitution. The right serves an empirical social purpose. In an ideal society it is assumed that the State would take care of the persons and properties of the citizen. It is a normal function of the State to provide such protection. But the State machinery cannot safeguard the life, limb and property of the citizen in every nook and corner. When under attack by an assailant, i.e., where “an offence” is sought to be committed by the aggressor, the defenders have been given a statutory right to defend his life and those of others. If the right is taken away, the innocent will suffer and muscle power will prevail as the master of the society. To secure the right, a warning note is found in Section 6 of the Penal Code.
10. How many Indians know about the right of private defence printed in the Penal Code? Where we have so much poverty and illiteracy it is hardly possible to expect that those people know the existence of circumstance to bring home a case within any of the general exceptions in the Code. Indeed, the cases are conducted by lawyers, but from our experience we say that even the available circumstances appearing from the record are not brought before the court to show that the accused had the right of private defence. For the fault or omission of the lawyers the accused should not suffer. Situated thus, we are of the opinion that the burden of proving the existence of circumstance must be liberally construed and the benefit should go in favour of the accused in view of the existent social millieu. We are also of the view that the court should always bear in mind Section 6 of the Penal Code and try to find out the circumstances whenever and wherever they peep from materials on record. Necessary allowance should be given to the accused, until we can affirmatively say that the law has been broadcast and made known to all. We also conclude that a case covered by general exceptions is “lawful homicide” or “simple homicide” and only unlawful homicide or culpable homicide are punishable Under Section 299 (culpable homicide not amounting to murder), murder, (Section 300) and rash or negligent homicide (Section 304A). In a case covered by the general exceptions the necessary ingredients of the offences Under Sections 299, 300 and 304A are conspicuously absent in view of the absence of ‘mens rea’ or the requisite intention or knowledge. In a case of right of private defence the real or dominant intent is to save his life or limb or that of the other. In our opinion, when a case of right of private defence appears or the right of private defence is taken at the stage of investigation or trial it is the obligation of the prosecution to negative the circumstances and destroy the defence plea to sustain the conviction of the accused. If the defence plea is demolished by the prosecution yet the accused may establish his case by producing material or witness in support of his case and then it will be for the Court to consider which version is acceptable.
11. Now let us turn to the case in hand. P.W. 3, Guru Prasad is the sole eye-witness on whose testimony the entire prosecution case hinges. A conviction can be sustained on the uncorroborated testimony of a single witness if the court can place implicit reliance on his testimony. The eye-witness is the brother of the deceased. There existed a hostile or strained relationship between the witness and his brother on one side and the accused on the other arising out of some land dispute. The witness affirms that the killing was a sequel to the dispute in question. If it were so, the plea of the accused that the deceased had initiated the attack is also a plausible case. The witness and his brother Basudeo (deceased) went, to the sugarcane cultivation and the incident happened while his brother was returning back. It is a common knowledge that the sugarcane cultivators use daos and sharp-cutting weapons. The appellants are also cultivators, as such, carrying of weapons like dao by the parties was nothing unusual. The witness has deposed that the place of incident was a desolate spot surrounded by jungles and hillocks, about 14 k.ms. away from the nearest police station. Under these circumstances the protection of the public authority was a far cry, if either of the parties was attacked. In court the witness has stated that he saw the last part of the incident, i.e. the two appellants inflicting blows on the deceased. The trial court accepted the testimony of the witness and rejected the plea of the appellants on the ground that the fatal blows were inflicted by the appellants and the testimony of the witness did not show that the appellants were attacked. However, learned Judge held that the appellants were hiding in the nearby jungle and jumped upon the deceased and killed him. The trial court even did not pause to consider how the appellants sustained so many injuries inflicted by sharp weapons. He did not consider the fact that the appellants had to be hospitalised and the hospital regime was too long. The trial court did not consider the deviation of the story presented by the witness in court from the one pictured by him in the ejahar. Learned Judge over-looked that the witness suppressed the injuries on the accused and did not explain as to who had inflicted the injuries. It has been established from the prosecution evidence that the appellant Subodh sustained multiple incised wounds, a fracture and his injuries were grievous in nature. Appellant Arun Balmiki had incised wounds. However, his injuries were less serious. Both had to be hospitalised as deposed by the doctors. The wounds were not self-inflicted injuries and, therefore, some one caused them. Admittedly, deceased Basudeo was their sole-adversary. As such, none but the deceased caused the injuries. It will be seen from the prosecution evidence that P.W. 3, Guru Prasad lodged the ejahar and claimed that he saw the incident right from the beginning. He had stated therein that the appellants and others kept themselves concealed in a nearby bush, ambushed his brother Basudeo and when the witness approached the appellants chased him away. He fled away, took shelter on a hillock and saw the appellants going away. However, there is not a word that he saw anybody causing any injury to any of the accused in the course of attack. He even did not notice any injury on the accused. The injuries could not be suppressed as the appellants had to be hospitalised and the witness was in a fix. He was to explain so many injuries caused by sharp weapon and the assailant was none but his brother. We, therefore, find that although the two appellants had multiple injuries on their persons the eye-witness suppressed the material facts in the ejahar. He suppressed that his brother caused the injuries. When the crucial witness could suppress the material facts or intentionally did not disclose, one is to draw the presumption that he was not a reliable and truthful witness. He wanted to hook the accused even by resorting to wilful suppression of material fact before the public authority. Realising the position that he was to explain the injuries the witness deviated from his original story and narrated that he was away behind and did not see the first part of the incident but only saw that his brother was assaulted by both the appellants and then the accused left the place, By telling the story the witness has not only deviated from his original version but has exhibited his reluctance or hesitancy to speak the truth. Now, if his version is accepted there is no one who saw the first part of the incident apart from the appellants. The case of the appellants was that Basudeo attacked Subodh and showered dao blows and in consequence thereof appellant Subodh fell down. Then Arun Baimiki, the other appellant came to his rescue but he was also not spared. Appellant Arun affirmatively stated that after receiving the injuries Subodh lay unconscious and he assaulted Basudeo to save the life of Subodh and his life and limb. This version is strongly supported by concrete prosecution evidence. After receiving so many injuries Subodh could not have been on his legs to deal blows on the deceased. As such, the simple and honest version of Arun Baimiki finds ample corroboration from the testimony of the doctor. We also find that Arun was present at the place of occurrence and sustained injuries which were caused by Basudeo. We, therefore, conclude that the eye-witness was not honest and truthful and his testimony suffers from the wilful suppressions, deviations and omissions. He claims that he saw the culminating point of the episode but his testimony that Subodh could deal blow on the deceased is negatived by the statement of appellant Arun Baimiki. The injuries on Subodh by themselves show that he could not have given the last blows on the deceased. It is difficult to accept the story of P.W. 3, Guru Prasad that appellant Subodh with so many incised injuries and fracture could stand on his legs and deal any blow. We find the story depicted by Subodh, a cultivator that after sustaining injuries inflicted by deceased Basudeo he fell down ;as mote acceptable story than sought to be made out by the eye-witness. The plea of the accused fitted in with the facts and circumstances of the case. We cannot place reliance on P. W. 3, Guru Prasad for his deviation and reluctance to speak the truth. The witness did not even state that he saw the injuries on the appellants. It is really strange. We find enough material to hold that appellant Subodh sustained multiple incised wounds caused by Basudeo (deceased) with a sharp weapon. The story of the appellant that Basudeo initiated the attack and inflicted merciless injuries on Subodh appears clear from the facts and circumstances of the case. After receiving the injuries Subodh fell down is more acceptable. Appellant Arun had the alternatives either to leave Subodh to die at the hand of Basudeo or come to his rescue. It was a desolate place, the question of having help from public authority did not arise. Arun came to rescue of Subodh but he was injured. Under these circumstances, he had reasonable apprehension that Subodh would be killed if left at the mercy of Basudeo. He had also reasonable apprehension of grievous hurt by the assailant. Situated thus he dealt blows. As such the defence plea of the right of private defence has been well-established. It has been established that Basudeo had committed “offences” affecting the body of appellant Subodh and that of Arun Baimiki. It was not attempted or threatened assault but a case in which Arun exercised the right of private defence of person after Basudeo had dealt so many blows on Subodh. Situated thus, Arun, a cultivator exercised the right of private defence. His act must be judged objectively with reference to the events and deeds at that crucial moments and taking the totality of the situation and the surrounding circumstances. It cannot be said that the appellants exceeded the right of private defence. The right of private defence cannot be weighed in too fine a set of scale. It is difficult to expect the appellant Arun to be careful and circumspect to modulate the precise necessary force to save the life of Subodh or repel the attack and to extricate himself from the grave situation. In the heat of the moment an accused may carry his defence a little further than what was necessary when calculated wit precision and exactitude by a quiet and unruffled mind. It was a question of life and death for appellant Arun. In this regard we rely on Amjad Khan v. State ; Biran Singh v. State of Bihar ; Yogendra Morarji v. State of Gujarat ; Jaidev v. State of Punjab ; Dominic Verkey v. State of Kerala ; Md. Ramzani v. State of Delhi .
12. For the foregoing reasons, we hold that the appellants have successfully brought home a case of exercise of the right of private defence and, accordingly, we set aside the conviction and sentences of the appellants under Section 302, I.P.C.
13. In the result the appeal is allowed.
14. We put it on record that we received invaluable assistance from Mrs. Kuntala Deka, and Mr. J. Singh, learned Public Prosecutors, Assam.
