of U.P. Vs. Zalim & Ors  INSC 680
(7 May 1996)
M.K. (J) Mukherjee M.K. (J) Kurdukar S.P. (J)
JT 1996 (6) 9 1996 SCALE (4)255
O R D
three respondents herein alongwith one Hari Singh (accused) were put up for
trial for committing culpable homicide not amounting to murder of Babu Ram
(since deceased), an offence punishable under section 304 of the Indian Penal
Code. The Second Addl. District and Sessions Judge, Etawah, vide judgment and
order dated 29-5-1978 in Sessions Trial No. 199 of 1976
convicted the first respondent/accused Zalim under section 304 Part I of the
Indian Penal Code and sentenced him to suffer rigorous imprisonment for ten
years. Partap the second respondent was convicted under section 304 Part I read
with section 34 IPC and sentenced him to suffer rigorous imprisonment for seven
years. Pyare the third respondent was also convicted under section 304 Part I
read with section 34 IPC and sentenced him to suffer rigorous imprisonment for five
years. The learned IInd Addl. District and Sessions Judge, however, gave
benefit of doubt to Hari Singh and acquitted him of the said charge. The
respondents being aggrieved by the order of conviction and sentence preferred
an appeal to the High Court of Judicature at Allahabad and the High Court vide its judgment and order dated 6-4-1983 allowed the appeal of the respondents and acquitted
them of the said charge. The State of U.P.
has filed this appeal challenging the legality and correctness of the order of
acquittal passed by the High Court.
Briefly stated the prosecution case is as under:- On 9-5-1976 at about 1.00 p.m., a Panchayat was held in the Varandah of one Ram Das Chowdhary to
resolve the dispute as regards a kotha situated at village Bakewar Distt. Etawah.
Ram Sarup son of Munni Lal claimed to be in possession of the said kotha but
however, he complained that respondent-Partap Singh and others took forcible
possession thereof some five to six days prior to the date of incident which
took place on 9-5-1976. The Panchayat deliberated on the
issue and suggested that possession of kotha be returned to Ram Sarup to which Partap
the second respondent (accused) and his supporters did not agree.
Ram (deceased) was also present at the said Panchayat. It is alleged that a
heated discussion lasted for about two or two and half hours but no final
decision could be arrived at as regards the said kotha. Babu Ram (deceased) in
the said Panchayat told Partap (accused) that he owned 1/3rd share in the grove
which is in possession of the respondents (accused) and they are continuing in
possession "dishonestly." Partap (accused) thereafter retorted to Babu
Ram (deceased) that if has got power, he could take it back through court. Babu
Ram then replied "if this is so, he would get his share just then and
there only." This wordy quarrel led to the exchange of abuses between the
two parties and thereupon Babu Ram abused by saying that the dishonest persons
would suffer from the disease of "warm." Being felt insulted by this
abusive words, Partap also hurled abuses to Babu Ram and his supporters. It is
alleged by the prosecution that Babu Ram (deceased) thereafter took off the
shoe from his left leg and snowed it to Partap, Pyare and Hari Singh the
acquitted accused. The respondents felt insulted by the conduct of Babu Ram and
thereafter the respondents alongwith Hari Singh rushed at Babu Ram. Partap, Pyare
and Hari Singh (accused) caught hold of Babu Ram and took him in the middle of
the road. Chheda Lal son of Babu Ram and others thereafter intervened and tried
to separate them but, however, Partap (accused) asked Zalim (accused), the
first respondent to cut off the left hand of Babu Ram by which he was holding
the shoe. Zalim Singh (accused) took out the knife from his pant pocket and
tried to give a blow on the left hand of deceased, however, the said blow fell
on the left side of the chest, Because of this injury on a vital part, Babu Ram
(deceased) collapsed on the ground. The respondents and the acquitted accused
thereafter fled away.
Lal (PW1) lodged the F.I.R. on the same evening at about 9.30 p.m. The
investigating officer alongwith police party reached the place of incident and
commenced the investigation. After completing the investigation, four accused
came to be charge sheeted for an offence punishable under section 304/34 IPC.
respondents (accused) denied the charge and claimed to be tried. They admit
their presence but, however, they pleaded a right of private defence. According
to the respondents, Babu Ram (deceased) was holding a shoe in his left hand
which caused reasonable apprehension in their minds as regards danger to their
lives, and therefore, in exercise of their right of private defence they were
justified in their action.
prosecution in support of its case examined three eye witnesses, namely, Chheda
Lal (PW 1), Munni Lal (PW 2) and Gangeshwar Dayal (PW 3). The respondents in
their defence did not lead any evidence.
courts below concurrently held that the prosecution has proved the incident in
question. There is no serious challenge to this finding. The only question,
therefore, that needs to be considered in this appeal filed by the State of
U.P. is as to whether the respondents justify their act of causing grievous
injury to Babu Ram (deceased) in exercise of right of private defence.
is not disputed that Babu Ram (since deceased) who was admitted to Sadar Hospital, Etawah, on 10-5-1976 at 3.50 p.m., succumbed to his injuries. Dr. C.Prakash
who held the post mortem examination on the dead body of Babu Ram, noted the
following injuries:- "Incised wound 4.5" x 1" x cavity deep on
the left chests laterally and directions from front to backwards, 4.5"
below left nipple and also lateral to it and obliquely. Margins clean cut. On expioration
sub-cutaneous tissue, muscles soft tissue, vessels and adjacent left sides
pleura found cut penetrating into left side being in an area 3.5" x
3/4" from its anterior surface towards posterior surface. Left sides chest
cavity containa 8 ozs of clotted blooe." Dr. C.Prakash opined that the
above noted injuries on Babu Ram (deceased) were ante mortem and he died due to
shock and haemorrhage.
Both the courts below on appraisal of materials on record have concurrently
held that Babu Ram (deceased) sustained the above bodily injury which was grievous
in nature and which has resulted into his death. We see no reason to differ
from the said finding.
are conscious of the fact that we are dealing with a judgment of acquittal
recorded by the High Court. We have carefully gone through the judgments of the
Courts below as well as the evidence on record and in our opinion the impugned
judgment of acquittal recorded by the High Court cannot be sustained.
Trial Court has very succinctly discussed the evidence relating to what
happened at the Panchayat meeting.
heated discussion, Babu Ram (deceased) took off his shoe and aimed it towards Partap
(accused). Pyare, Zalim and Partap (accused) then dragged Babu Ram in the
middle of the road from the Verandah where Panchayat proceedings were going on
and thereafter Partap (accused) asked Zalim (accused) to cut off the hand of Babu
Ram by which he was holding the shoe. Zalim (accused) then took out the knife
from his pant pocket and tried to hit on the left hand. Babu Ram (deceased)
while warding of the said blow, it fell on his left side of the chest. Babu Ram
thereafter fell down on the ground. The Trial Court held:
could it be contended that that mere holding of shoe by the deceased at Partap
in the course of that heated altercation would provoke a prudent human being in
having him caught hold of by accused Zalim and Pyare and that ogging (sic) on Zalim
to deal a knife blow to cut off the limb that held the shoe knowing full well
that if the knife wont amiss the target or the victim, who was not a statue
standing moved it would lend on his vital organ and might result in his instant
death? Certainly not. Accused Pratap did not fear death from the mere holding
of shoe by the deceased. No prudent human being would fear grievous injury to
him or his fellow beings by mere show of shoe. In the facts and circumstances
of the case the action of accused Pratap in calling upon his nephew accused Zalim
to make short work of the deceased Babu Ram's left hand, could not be within
the periphery of self defence. The accused exceeded the limit of right of
private defence, and could not, as such be exponerated of the change u/s 304
I.P.C." The High Court, however, did not agree with this finding and it
held that the accused had right of private defence and they have not exceeded
the same. The High Court after re- appreciating the evidence of the eye
witnesses held as under:- "It therefore becomes clear beyond doubt that it
was deceased Babu Ram himself who was aggressive, and in these circumstances a
right of private defence of person accrues to the appellant's side.
next question which arises is as to what extent this right of private defence
can be exercised, under section 102 of the Indian Penal Code. Right of private defence
of person commences as soon as a reasonable apprehension of danger to the body
arises from an attempt to commit the offence though the offence may not have
been committed, and it continues as long as such apprehension of danger to the
body continues. In this case as has some in evidence deceased Babu Ram arrived
(sic) the shoe at the head of the appellant Pratap with the intention of
the right of defence accrued at that very moment when a reasonable apprehension
of danger to the body arose, and this right would continue as long as the
apprehension of danger to the body continued. It has not come in evidence that
this apprehension had ended by the time appellant Zalim made the assault. On
the other hand, as has come in evidence, just after the apprehension arose, the
entire incident occurred within a short time which has been stated by the
witnesses to be one minute." The High Court thus held that the appellants
did not exceed the right of private defence of person. While justifying the act
of the respondents/accused, the High Court then observed:
to him, the deceased was making on a result (sic) on the upper part of the body
of the appellant Pratap, with the result that there had arisen a reasonably
(sic) apprehension that if the shoe hit those parts of the face, such as eye or
teeth, grievous hurt was to have been caused"
Mr. Anis Ahmad Khan, learned counsel for the appellant in support of this
appeal assailed that the aforesaid findings of the High Court being perverse
and unsustainable in law. He drew our attention to sections 100 and 102 I.P.C. and
urged that the act committed by the respondents does not fall in any of these
provisions and, therefore, they had no right of private defence. He urged that
no prudent man can expect a bodily injury by a shoe beating to such an extent
that it would endanger the life. The facts of the present case do not justify
the assault by a sharp edged weapon like knife. He, therefore, urged that the
order of acquittal is unsustainable and consequently it be set aside and the
order of conviction and sentence passed by the learned trial court be restored.
Mr. Sanjeev Dubey, learned counsel appearing for the respondents vehemently
urged that the impugned order of acquittal does not call for any interference.
He urged that the view taken by the High Court is also equally probable and
reasonable view ands therefore, if two views are possible the one which is in favour
of the accused if accepted by the High Court, no interference in the order of
acquittal is called for.
After hearing counsel for the parties and after going through the evidence on
record, we are of the opinion that the High Court has committed an error in law
in holding that the respondents/accused had not exceeded the right of private defence.
On the facts of this case, we are unable to sustain this finding. It is
difficult to believe that Babu Ram who was holding a shoe in his left hand
assuming that he was to hit any of the accused or Pratap, should it cause a
reasonable apprehension in the mind of the respondents (accused) that there
would be danger to their lives and in exercise of right of private defence,
caused such a grievous hurt with the sharp edged weapon namely the knife in
exercise of the said right. The evidence on record clearly shows that the
respondents caught hold of Babu Ram dragged him to the middle of the road and
thereafter a call was given by Pratap to Zalim Singh to cut off the left hand.
Singh (accuced) took out the knife from his pocket and gave a blow with the
said knife on the left side of the chest of Babu Ram. The description of the
injuries given by Dr. C.Prakash clearly indicates the force with which the blow
was given to Babu Ram. Partap and Pyare (accused) were holding Babu Ram in the
middle of the road and that facilitated Zalim to give a blow with the Knife on
him. In the facts and circumstances of the case, the action of the respondents
could not fall within the periphery of right of private defence and assuming
that they had a right of private defence, they had exceeded the same.
For the reasons recorded above, we are unable to agree with the order of
acquittal passed by the High Court. The impugned judgment and order of
acquittal dated 6-4-1983 passed by the High Court is set
aside and the judgment and order of conviction and sentence passed by the trial
court on 29-5-1978 is restored. The respondents, who
are on bail, are directed to surrender to their bailbonds forthwith to serve
out the remainder of their respective sentences.