Sampat Singh Vs. State of Rajasthan
 INSC 1 (7 January 1969)
07/01/1969 MITTER, G.K.
HIDAYATULLAH, M. (CJ)
CITATION: 1969 AIR 956 1969 SCR (3) 228 1969
SCC (1) 367
E 1978 SC 315 (19)
Code of Criminal Procedure (Act 5 of 1898),
s. 342-Non- confessional statement of accused how far may be relied on for
purpose of conviction.
The appellant was tried for murder under s.
302 of the Indian Penal Code but was convicted only under s. 304 Part 11 of the
Code. In holding him so guilty the trial court and the High Court did not fully
believe ,the prosecution version of the incident but accepted the appellant's
version in part whereby he claimed the right of self-defence. They however held
on the facts that he had exceeded the right of self-defence and convicted him
accordingly. In appeal before this Court it was contended that the accused's
statement under s. 342 Criminal Procedure Code should only be considered in its
entirety and a part of it cannot be used for the purpose of convicting him. In
support of this contention reliance was placed on the decision of this Court in
Narain Singh's case.
HELD : Both the courts below on the facts
were justified in coming to the conclusion that the appellant exceeded his right
of self-defence. Neither court had relied only on the, statement of the
appellant under s. 342 Cr. P.C. to arrive at the finding. There was sufficient
other evidence to warrant the conclusion that the right of private defence had
been exceeded. In these circumstances the rule in Narain Singh's case namely
that the conviction of an accused cannot be based on his statement ,alone where
the statement does not amount to a confession, was not attracted. It is
permissible, for the court to rely on a portion of the statement of the accused
and find him guilty in consideration of the other evidence against him led by
the prosecution. [234 H-235 C] Narain Singh v. State of Punjab,  3 S.C.R.
Nishi Kant Jha v. State of Bihar,  2 S.C.R.
1033, followed and applied.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 146 of 1967.
Appeal by special leave from the judgment and
order dated February 27, 1967 of the Rajasthan High Court in D. B. Criminal
Appeal No. 32 of 1964.
B.R. Dhawan, B. P. Maurya, P. N. Tiwari,
Santosh Gupta and Sobhag Mal Jain, for the appellant.
K. Baldev Mehta, for the respondent.
The Judgment of the Court was delivered by
Mitter, J. The main question involved in this appeal is.
whether there was evidence to justify the
finding that the appellant 22 9 had exceeded his right of private defence in
giving two, blows with a dagger to one Shyamsingh one of which proved fatal.
The prosecution case was as follows. There
was a long- standing enmity between the families of Achalsingh on the one hand
and Hariram and his sons on the other on account of the fact that the admitted
advance of Rs. 10,000/- by Hariram to Achalsingh some years back had not been
repaid in spite of numerous demands made from time to time. The houses of
Hariram and Achalsingh were situated at a short distance from each other in the
City of Jodhpur. Hariram had two sons,. Rameshwar and Devilal. Rameshwar had
been given in adoption to his uncle but the relationship between him and his
brother, Devilal continued to be quite cordial.
Rameshwar was married to one Ratan Kanwar
whose brother Shyamsingh came to lose his life in the way to be narrated
hereafter. Achalsingh had two sons, Sampatsingh and Shyamlal. On March 28, 1963
at about 6 p.m. there was a quarrel between Devilal on the one hand and Asulal,
Sampat Singh, Shyamlal and two friends of theirs, Kishensingh and Uttam Giri on
the other. This group of people started abusing Devilal whereupon Rameshwar's
wife, Ratan Kanwar tried to intervene and stop the quarrel. The said group who
were all accused in the Sessions Case which followed beat both Devilal and
Ratan Kanwar. They also took away a golden Jhumri from the right ear of Ratan
Kanwar. Eventually people. of the locality put an end to this affair. Ratan
Kanwar sent messages to her husband Rameshwar and her brother ShyamSingh,
deceased. Before Shyamsingh reached the place, all the accused came from the
house of Achalsingh to that of Devilal and raised a shout asking the latter to
come out. The accused were armed variously, Sampat Singh with a dagger and the
others with lathis. Rameshwar who happened to be there tried to close the door
of Devilal's house, but the accused managed to get in, and dragged Rameshwar
out and started beating him. Ratan Kanwar who tried to intervene was also hurt.
She received a blow on the head with a dagger of Sampatsingh as also lathis
blows from the others.
Shyamsingh, the deceased, happened to, come
on the scene at that hour and the fury of the accused fell upon him.
Achalsinghis son, Shyamlal caught hold of
ShyamSingh and Sampat Singh, appellant, struck blows with the Jambiaon
Shyainsingh's thigh and on his back near the waist. People of the neighborhood
like Ambalal (P.W. 14), Nainsingh (P.W. 13), Satyanarain (P.W. 15) and
Bhagwandas (P.W. 16) who came in aid of Rameshwar's group were also injured by
the accused. Nainsingh, Ambalal and Satyanarain were all injured by the Jambia
of Sampat Singh. Thereafter the accused left the place. Shyamsingh, Ratan
Kanwar and Ambalal were taken away by Rameshwar to the police station and a
first information report was lodged at 8.30 p.m.
230 The injured persons were sent to the
hospital and Shamsingh was admitted as an indoor patient. Dr. Ojha who examined
Shyamsingh thought his condition to be critical and arranged for a dying
declaration of Shyamsingh to be recorded at 9.25 p.m. Shyamsingh stated that he
had been wounded by Sampat Singh by means of a Jambia. The City, Magistrate,
Jodhpur who came in answer to a summons recorded another dying declaration at
10.50 p.m. The injury report on the person of Shyamsingh by Dr. K.C. Singhal
was as follows:-,
1. Incised wound 1/4 " x 1/2" x
muscle deep tapering 2" x 1/10" below the medial aspect of the right
thigh middle part.
2.Incised wound 1 1/2" x 1/2 " x
cavity deep on the left lumbar region, and 3.Teeth marks elliptical, in shape 1
1/2" in area on the left shoulder.
In spite of the operation performed on him
Shyam Singh expired on March 31, 1963 at 4 a.m. and the postmortam was performed
on the body by Dr. Har Govind. Dr. Singhal also examined Ratan Kanwar, Ambalal,
Nain Singh and Satyanarain.
On the person of Ratan Kanwar there was only
one incised wound while there were three such wounds on the person of Ambalal,
two on the person of Nain Singh and one on the person of Satyanarain. On the
person of the accused Shyamlal there appeared various wounds but the injuries
according to Dr. Har Govind were all simple in nature caused by a blunt weapon
excepting a sceptic wound on the right little finger about which the doctor
could form no definite opinion. On the person of some of the other accused
several abrasions were noticed on medical examination. Sampat Singh, the
appellant, had a sceptic wound of 3/4 " X 1/2" skin deep on the right
little finger and an abrasion 1/4" x 1/4" on the front of the right
knee. The injuries were all simple in nature. The Jambia which was recovered at
the instance of Sampat Singh from his house was not found to be blood-stained.
The accused Achalsingh was arrested long time after the crime i.e., on 19th
On examination by the Munsif-Magistrate of
Jodhpur, Sam- patsingh gave a version of the incident which was completely at
variance with the prosecution story. According to this, be had learnt at about
5.30 p.m. on March 28, 1963 from his brother, Shyamlal that Devilal and
Shyamsingh had threatened to beat him. Some friends, viz., Asulal, Kishensingh
and Uttam Giri had also gathered in their house for the purpose of going to a
fair. Uttam Giri wanted to go to the house of Hotchand and the appellant
directed his brother, Shyamlal company Uttam Giri. Shortly thereafter, he heard
the cry of Shamlal that he was 231 being beaten and coming out of the house on
to the road he found Shyamsingh, the deceased, Nainsingh, Ambalal and
Satyanarain beating Shyamlal and Uttam Giri. Asulal and Kishensingh also came
out and tried to save Shyamlal and Uttam Giri. Shyamlal was lying on the ground
Shyamsingh, deceased was sitting on his
chest. Shyamlal's eyes were bulging out. The appellant tried to free. his
brother from. the clutches of Shyamsingh but as he could not do so with bare
hands he took out the Jambia which was tied round the waist of the deceased and
wielded the same injuring Nainsingh, Ambalal and Satyanarain who were trying to
attack him' He also gave a blow on the thigh, of the deceased but even then
Shyamsingh would not let go his brother Shyamlal whereupon he gave another blow
to Shyamsingh on his waist with the Jambia. According to the appellant he had
given these blows to save the life of his brother Shyamlal and had thereafter
run away throwing the Jambia on the spot. Shyamlal's version which
substantially agreed with that of his brother Sampatsingh was to the effect
that Shyamsingh was trying to throttle him (Shyamlal) and he had practicaly
lost consciousness; when he came round he found Shyamsingh, deceased, lying
near him and his brother Sampat Singh leaving him.- The accused were committed
for trial to the Court of Sessions Judge, Jodhpur. There they repeated the
statements made by them before the committing Magistrate. According to the
Sessions Judge, the version relating to the occurrence said to have taken place
at 6.30 p.m. on March 28, 1963 was not true. As regards the second occurrence
on the same day at about 9 p.m. the Judge held that there was no beating given
by any of the accused to the prosecution witnesses before Shyamsingh reached
the place of occurrence. The Sessions Judge further found that this incident
had taken place substantially in the manner deposed to by the accused Sampat
Singh and others and not as alleged by the prose- cution and that Shyamsingh
had received the fatal injury with a Jambia from Sampatsingh when the former
was sitting 'on the chest of Shyamlal and had caught hold of his neck.
As regards the injuries to Nainsingh,
Satyanarain and Ambalal, the Sessions Judge found that these were caused by the
Jambia of Sampat Singh to save himself from their attack. The Judge further
found that the Jambia was not with the appellant initially but was taken from
the person of the deceased. For this the Sessions Judge relied on the statement
of the accused. He however held that the grip of the deceased on the neck of
Shyamlal accused was not of such a nature as to lead to an apprehension that
the deceased meant to cause death by strangulation. The Sessions Judge held
that the deceased had caught hold of Shyamlal to facilitate the beating which
he intended to give him and that Sampatsingh was a sufficiently powerful man
who could have rescued his brother, Shyam- 232 lal by pushing or dragging
Shyamsingh aside and not by inflicting injuries with the Jambia and the
circumstances did not justify the resort to such severe measures.
Alternatively the Sessions Judge held that
Sampat Singh had exceeded his right of private defence of his brother and could
not be protected under the law for the consequences of his act. On this view,
he convicted the appellant of an offence under S. 304 Part II of the Indian
Penal Code and sentenced him to rigorous imprisonment for four years and a fine
of Rs. '100/- or in default to suffer two months further rigorous imprisonment.
He was however acquitted of the offences under sections 148, 302, 324/323/148
and 324/149 I.P.C. The other accused were all acquitted.
On behalf of the appellant it Was urged
before the High Court, as it was before us, that on rejection of the evidence
of the prosecution witnesses with regard to the occurrence at 6 p.m. and 9 p.m.
by the Sessions Judge, the appellant could not have been convicted merely on
the basis of his statement under s. 342 Cr.P.C. Reliance was placed before us,
as before the High Court, on the decision of this Court in Narain Singh v.
State of Punjab(1). There it was observed on an interpretation of s. 342 that:
"If the accused person in his
examination under S. 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 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." In that case the prosecution did not by
reliable evidence establish affirmatively that Narain Singh had done any act
which rendered him liable for the offence of murder. To quote the words of
Shah, J. in that case :
"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 (1)  3 S.C.R. 678.
233 .lm15 plea of justification, 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." In our view, the ratio of that case is not
applicable to the appeal before us. No doubt the Sessions Judge did not accept
the genesis of the prosecution story, namely, the incident at' 6 p.m. and was
further of the view that the account given by the accused was to be preferred
to that of the prosecution with regard to the second incident. But the High
Court which sifted the evidence for itself did not take the same view of the
facts as the learned Sessions Judge. According to the High Court, there was
some sort of incident at about 6 p.m. between the sons of Achalsingh and
Devilal and from verbal altercation the matter assumed serious' proportion
leading to a fight. The High Court held' that the evidence of Ratan Kanwar and
Devilal with regard to the assault and the snatching of the golden jhumri,
though exaggerated, was not altogether without foundation. The accused other
than Shyamlal may not have been present on the first occasion but they were
there on the scene of the second occurrence. We may add that even the story of
the accused goes to show that there had been some trouble before the incident
at 8.30 or 9-p.m. The High Court did not accept the story, with regard to the
snatching of the jhumri and was of the view 'that the first occurrence
furnished a background for what happened later on. The High Court also agreed
with the trial court that the prosecution story that Achalsingh and his sons
accompanied by Kishansingh and Uttam Giri had gone to the house of Rameshwar at
about 8 p.m. and hurled abuses gone him and others was not true inasmuch as if
five persons armed with lathis and one with a dagger had entered the house of
Rameshwar and dragged him outside there would have been marks of injury on
Rameshwer who did not get himself examined. The High Court relied on the
injuries found on the person of the deceased specially 1 the teeth marks as
going to show that Shyamlal had tried to free himself from the clutches of
Shyamsingh deceased and at that stage Sampatsingh, the appellant, had appeared
on the scene and finding the deceased sitting on the chest of his brother had
tried to force them apart and when he found that he could not do this with bare
hands he had taken the Jambia from the waist of the deceased and inflicted two
injuries on him.
The, prosecution evidence of Ratan Kanwar,
Rameshwar and other witnesses was that the in-. juries to the deceased were
inflicted while he was standing. This was not accepted by the Sessions Judge
who, as already stated, found that the version given by the accused with regard
to the injuries by the Jambia was the correct one. Accordingly to the High
Court, however, the circumstances were more consistent with the infliction of
the injury while the deceased Shyamsingh was:
Sup. I./69-16 234 standing. The, High court
also commented on the fact that the Sessions Judge overlooked the statement of
Dr. Ojha who had stated that the injury inflicted in the lumbar region of the
deceased was sufficient in the ordinary course of nature to cause his death. It
may be noted that Dr. Har Govind's evidence was somewhat different. This doctor
had stated that though the injuries were not dangerous to life, they could
result in death. Examining the evidence of the two doctors, the High Court
preferred the view of Dr. Ojha that the injury on the lumbar region of the
death was sufficient in the ordinary course of nature to cause death.
Ultimately, the High Court held that the
Sessions Judge had not rejected the entire prosecution evidence but had
considered the same along with the explanation offered by the accused in
forming his own conclusion. The High Court also pointed out that the Sessions
Judge had not rejected the evidence of all the prosecution witnesses on the
point that it was the appellant who had given two blows by Jambia on the
deceased, one on the right thigh and the other on the waist. The striking of
the deceased by the appellant with Jambia was the common case of the parties.
The medical evidence showed that one of the wounds was sufficient in the
ordinary course of nature to have caused the death of Shyamsingh. Shyamlal the
brother of the appellant, was certainly having the worst of the struggle with
Shyamsingh and the circumstances certainly justified the appellant's attempt to
force them apart.. Both courts held that the nature of the attack on Shyamlal
by Shyamsingh was not such as to have necessitated the infliction of the second
injury by the Jambia. Both courts accepted the appellant's version that he was
exercising his right of private defence of the person of his 'brother. The High
Court negatived the contention that such right of private defence went to the
extent of causing the death of the assailant by the appellant. The High Court
did not accept the version that there was an attempt on the part of Shyamsingh
to strangulate Shyamlal giving rise to an apprehension in the mind of the
appellant that grievous hurt or even death might be caused thereby. The
evidence did not disclose any marks of finger nails or bruises or even blue
signs on the neck of Shyamlal who was examined two days after the incident. The
High Court relied on the statement of the. appellant himself before the
committing court that the deceased had caught hold of the neck of his brother.
On the evidence, the trial court. did not find that the appellant had intention
to murder Shyamsingh but he had exceeded the right of private defence of his
brother by causing the serious injuries to the deceased with the jambia.
In our view, both courts, on the facts, were
justified in coming to the conclusion that the appellant had exceeded his right
of private defence. Neither court had relied only on the statement 235 of the
appellant under S. 342 Cr. P. C. to arrive at its finding There was sufficient
other evidence including the *jury report and the testimony of Dr. Ojha to
warrant the conclusion that the right of private defence had been exceeded and
the appellant was rightly convicted under s. 304 Part II I.P.C. In Nishi Kant
Jha v. The State of Bihar(1)it was held by this Court that the court may rely
on a portion of the statement of the accused and find him guilty in
consideration of the other evidence 'against him led by the prosecution. In
that case, there were no eye witnesses to the commission of the crime and the
evidence was all circumstantial and the statement of the accused that he was
present at the scene of the crime, was a vital circumstance which taken in
conjunction with other circumstances led the court to come to the conclusion
that he was guilty of the crime imputed to him. In our view the decision in
Narain Singh's case(2) does not apply to the facts before us and we hold that
the evidence justified the conviction of the appellant. The appeal, is,
therefore, dismissed and the conviction and sentence upheld.
G.C. Appeal dismissed.
(1) 2 S.CR. 1033.
(2)  3S.C.R.678.