State of Gujarat Vs. Bai Fatima & ANR
 INSC 78 (19 March 1975)
CITATION: 1975 AIR 1478 1975 SCR (3) 933 1975
SCC (2) 7
F 1975 SC1674 (19,20) R 1975 SC1703 (6,9) R
1976 SC2263 (11) RF 1977 SC2226 (5) RF 1988 SC 863 (17)
Evidence--Appreciation of--Right of private
Respondents Nos. 1 and 2 were mother and
daughter. The deceased was the brother-in-law of respondent No. 1. For some
days before the date of the Occurrence, the relations between the two families
were none too cordial. On the clay of the occurrence there was a scuffle
between the respondents and the deceased. A little later, when the deceased was
sitting in the house of his father-in-law in the opposite row of houses,
respondent No. 1 was alleged to have gone to the deceased with a stick to beat
him. Some neighbours intervened and tried to pacify both the parties.
When the deceased was going out, respondent
No. 1 put her leg across the legs of the deceased, as a result of which he fell
down on his back. Respondent No. 2 immediately caught hold of both the hands of
the deceased and respondent No. 1 is stated to have squeezed his testicles and
Eventually the deceased succumbed to the
injury. After the incident respondent No. 1 lodged a complaint before the
police stating that the deceased, his wife and his mother-in-law caught hold of
her and gave her blows and kicks with a stick as a result of which she fell
Holding that the prosecution case was proved
beyond reasonable doubt, the Sessions Judge convicted respondent No. 1 under S.
304, Part-I I.P.C. Respondent No. 2 was convicted under s. 323 read with s.
144, I.P.C. On appeal, the High Court, even after believing the main part of
the occurrence, acquitted respondent No. 1 of the charges levelled against her
and consequently respondent No. 2 also on the ground that she must have done so
in exercise of her right of private defence inasmuch as she must have squeezed
the testicles of the deceased when be was showering blows with a stick on her
in order to protect herself.
Allowing the appeal of the State.
HELD : (1) The trial Court was right in
believing the evidence of the proSecution witnesses in regard to both the incidents
and the occurrence in question forming part of the second incident. The High
Court differed from the view of the trial judge on flimsy and unsustainable
grounds. [998 D- E] (2) There was absolutely no basis or material on the record
to enable the High Court to record an order of acquittal in favour of the
respondents by extending them a right of private defence. Even going to the
maximum extent in favour of the respondents that respondent No. 1 got the blows
with a stick at the hands of the deceased and in the second incident it is
manifest that her action of assault on him was a deliberate counterattack to
cause him such injury which at least was likely to cause his death. The
counterattack could in no sense be an attack in exercise of the right of private
defence. [100 F-G] (3) Neither in her complaint before the police nor in the
statement under s.342 Cr. P.C. Was there a whisper by respondent No. 1 of her
having squeezed the testicles and private parts of the deceased in exercise of
her right of private defence. Not only was the plea of private defence not
taken by the respondents in their statements under s.
342, Cr. P.C. but no basis for the plea was
laid in the cross-examination of the prosecution witnesses or by adducing any
defence evidence. The burden of establishing that plea was not discharged in
any way by the respondents even applying the test of preponderance of
probabilities in favour of that plea. There is absolutely no material on the
record to lead to any such conclusion. [999 G-H] Munhi Ram and Others v. Delhi
Adtministration [19681 2 S.C.R. 455, followed.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 67 of 1971.
Appeal by special leave from the judgment
& Order dated the 17th July, 1970 of the Gujarat High Court in Crl. A. Nos.
287 and 128 of 1969.
R. H. Dhebar and R. N. Sachthey, for the
A. S. Qureshi, Vinal Deve and Kailash Mehta,
for the respondents.
The Judgment of the Court was delivered by
UNTWALIA, J.-There is a locality known as Nani Malokoad in the town of Kaloy,
District Mehsena, Gujarat. In this locality is a road (lane) running north to
south. Bai Fatima, respondent no. 1 in this appeal filed on grant of special
leave by the State of Gujarat, is the wife of Allarakha Hussemkhan. He had a
younger brother named Gulabkhan Husseinkhan. The victim of the occurrence is
the said Gulabkhan. Both the brothers had their houses adjacent to each other
in this lane facing east. The northern one was in occupation of and belonged to
the deceased and the southern one was of Allarakha. There are a number of other
houses situated around the houses of the two brothers. One such house is of
Sardarkhan Muradkhan facing west abutting the road, two houses north of the
house of the deceased.
Jamiyatkhan is the son of Sardarkhan,
father-in-law of the deceased Gulabkhan.
In the month of June, 1968 a complaint. was
made to the Kalol Municipality by persons of the locality including the
deceased and some of the prosecution witnesses that Allarakha, husband of
respondent no.1 was discharging dirty water of his house towards East which
collects on the road and causes nuisance to the residents of the locality. That
had caused friction between the families of the two brothers.
On 27.6.1968 according to the prosecution
story there were two incidents in the Angana i.e. space on the road in front of
the houses of the parties-.one was at 5.30 p.m. and the other at 6.30 p.m. The,
prosecution case is that a she-goat of Gulabkhan strayed in the house of
Fatima. 'She began giving blows to the goat. There, were altercations between
the members of the families of the, two brothers. Respondent no.2. who is a
married daughter of respondent no.1 and her son Liyakat who was 15 years old on
the date of occurrence were also present at the time of this quarrel.
They threw stones which hit P.W.3 Nannubibi,
wife of deceased Gulabkhan, one Rahematbibi and P.W. 4 Noorbibi-a neighbourer
and a close relation of Nannubibi Respondent no.1 is said to have come out with
a stick from her house, and went to Gulabkhan to strike him. One Allarakha
Rehman-a close neighbour came there, caught hold of the stick, quietened
respondent no. 1 and sent her back to her house The second part of the story is
that Gulabkhan and Nannubibi went and sat in the Angana of 995 Jamiyatkhan son
of Sardarkhan, father-in-law of Gulabkhan.
Respondent no. 1 about an hour later went
with a stick in her hand and hurled a blow on Gulabkhan. Nannubibi intervened
and got the blow on her right hand finger.
Gulabkhan directed respondent no.1 to go back
to her house by gestures of his hand and he also proceeded and pushed her
towards her house. When Gulabkhan reached the Angana of his house, respondent
no.1 is said to have put her leg across his legs with the result that he fell
down on his back.
Respondent no.2 caught hold of the hands of
Respondent no.1 sat on his legs and squeezed
his testicles and pulled them. The boy Liyakat is said to have bitten the
deceased on the left shoulder. Gulabkhan thereafter was made to recline on a
cot. Eventually he. died of the shock due to the pressing of his private parts
by respondent no.
1. Information was sent to the Police
Station. A complaint of Nannubibi was recorded at about 10.30 p.m. Liyakat was
sent for trial before the Juvenile Court. Respondent nos. 1 and 2 were tried by
the Sessions Judge, Mehsana.
The learned Sessions Judge held the
prosecution story to be proved beyond reasonable doubt in all material
Finding that the injury caused to Gulabkhan
in ordinary course of nature may not be sufficient to cause his death but was
likely to cause his death, he convicted respondent no.1 under section 304
Part-I of the Indian Penal Code and sentenced her to undergo rigorous
imprisonment for 7 years.
She was further convicted under section 323
and was given a concurrent sentence for 3 months under this count.
Respondent no.2 was convicted of an offence
under section 323 read with section 114 of the Penal Code and was sentenced to
undergo rigorous imprisonment for 3 months.
The respondents filed an appeal in the
Gujarat High Court from the order of conviction recorded against them and the
State went up in appeal for their conviction under section 302 of the Penal
Code read with section 114 in the case of respondent no.2 The State appeal was
dismissed by the High Court and that of the respondents allowed. The State came
to this Court and obtained special leave from the judgment of acquittal
recorded by the High Court in the respondents appeal. The dismissal of the
State appeal by the High Court is final.
The three eye witnesses to the occurrence are
P.W.3 Nannubibi, P.W.4 Noorbibi and P.W.6 Jenatbibi. The latter two are
neighbourers and related to Nannubibi. The Trial Judge believed their evidence.
He also believed the evidence of P.W.7 Gulamanabi Shermohmad-a close neighbour
of the parties to whom an oral dying declaration is said to have been made by
Gulabkhan before his death. It may be stated here that P.W.8 Rasulbhai was
sitting in the Bazar at some distance from the place of occurrence in the
evening of the 27th June, 1968. He got the information at about 9.45 p.m.
about the death of Gulabkhan. He rushed to
the Police Station and merely informed about his death.
It is also necessary to note here that
respondent no.1 had received some injuries on her person in either of the
incidents which took place 996 on the evening of 27th June, 1968. Prosecution
did not explain the injuries on her person but the Trial Judge inferred that
they must have been caused in the first incident which took place at 5.30 p.m.
and not in the second which was the subject matter of the charge against the
The High Court has held in favour of the
prosecution on the main part of the occurrence, namely, squeezing of the
testicles of the deceased by respondent no.1 as a result of which he died. Yet
it has disbelieved the prosecution case in regard to some other aspects. It has
not accepted the prosecution story that there were two incidents in the
evening. Nor has it accepted the version that shortly after the first incident
Gulabkhan and Nannubibi had gone to the Angana of Jamiyatkhan. The, story of
falling down of the deceased by the tripping of his legs by respondent no.1 has
been discarded by the High Court. So also the evidence of P.W.7 Gulamnabi. Even
after believing the main part of the occurrence the High Court has exonerated
respondent no. 1 of the charges levelled against her and consequently
respondent no.2 also on the ground that she must have done so in exercise of
her right of private defence in as much as she must have squeezed testicles of
the deceased when he was showering blows with a stick on respondent no. 1 in
order to protect herself.
In our opinion there are too many
conjectures, surmises and contradictions in the judgment of the High Court. The
respondents bad not examined any witness to give any counter version of the
occurrence or to justify the assault on testicles of the deceased which
resulted in' his death. The High Court has said in its judgment :- (1)
"There is also no doubt that since some days prior to the date of the
incident the relations between the deceased and the family of accused no.1 were
not cordial." (2) "There is no doubt that a quarrel did arise on that
day" (meaning thereby the date of occurrence "between the deceased
and accused no. 1 in respect of a goat." (3) "It is very reasonably
clear that the squeezing of the testicles of the deceased was in all
probability the act of accused no.1" (4) "There is further no doubt
that the deceased did die on account of squeezing of his testicles in the
evening that day at round about 8.30 p.m." On the findings aforesaid if
the claim of right or private defence put forward on behalf of respondent no.1
was untenable as we shall show hereinafter it was wholly so, then it is plain
that the High Court ought not to have interferred with the order of conviction
recorded by the Trial Court. Even in face of the said findings the High Court
criticized the prosecution case as regards some details of the occurrence or
the ,incidents and rejected a good portion of it. We shall briefly show that
the said rejection by the High Court was wholly unjustified.
997 There were two incidents according to the
prosecution case which happened in the evening at an interval of about an hour.
High Court says it was not so and says so without any basis. The prosecution
did not stand to gain anything by splitting up the evening incident in two
parts. Even in the First Information Report, Ext.32 recorded at 10.30 p.m. in
the night the two incidents were separately narrated. There was absolutely no
reason for the High Court to interfere with the findings of the Trial Court in
The High Court does not accept the
prosecution story that deceased Gulabkhan had gone to the `Angana of Jamiyatkhan
and respondent no. 1 went there as an aggressor with a stick in her hand. This
story has been discarded on the ground that it is not mentioned in the First
Information Report nor in the statements of the other two witnesses before the
police. We may observe again that the prosecution did not stand to gain
anything by unnecessarily or falsely introducing the story of Gulabkhan's going
to the Angana of his father-in-law. The main occurrence happened in the Angana
of Gulabkhan. The places are so very near that the story of Gulabkhan going to
the Angana of his father-in-law was not an important one to be remembered by
the witnesses to be recited before the police. It mattered little whether
respondent no.1 went as an aggressor to the Angana of the deceased or a bit
further North to the Angana of Jamiyatkhan.
High Court also discarded the story of the
tripping of the legs of Gulabkhan because it is not mentioned in the First
Information Report. But then it ought to hive been noticed that no such
contradiction was to be found in the evidence of P.Ws 4 and 6 in Court and
their statements before the police. It must, therefore. be presumed that they
had given out the tripping story before the police.
The High Court has not thought it safe to
rely upon the evidence of the three eye witnesses none of whom was found to be
disinterested in the prosecution. The comment is that Allarakba Rehman and
Mansabu who lived in the house opposite to the deceased have not been examined
by the prosecution.
According to the prosecution, case the said
Allarakha had merely quietened respondent no. 1 in the first incident and
Mansabu came after the second incident was over. In material particulars we
find the evidence of the eye witnesses very convincing and natural. In our
opinion the High Court was not justified in thinking that it was not safe to
rely on their evidence wholly and specially when the main part of the
occurrence which fastened the guilt on respondent no.1 was not disbelieved.
Absence of any details in the statement recorded
at the police station on the basis of the information given by P.W.
8 Rasulbhai unnecessarilly led the High Court
to remark that no one knew upto 10.00 on as to how Gulabkhan died. This
contradicts the earlier findings of the High Court that he died as a result of
the squeezing of his testicles by respondent no.1 Rasulbhai, according to his
evidence did not get the details of the occurrence and so did not give any to
998 The High Court has given 3 or 4 reasons
for discarding the evidence of P.W.7 Gulamnabi to whom the oral dying
declaration is said to have been made by the deceased. The first reason given
by the High Court is that when this witness went near Gulabkhan the three women
who claimed to have witnessed the occurrence were sitting near him; none of
them related the story to Gulamnabi. When. he put a question to Gulabkhan who
being in a position to give the answer gave it, it was not necessary for him to
talk to the women thereafter. Gulamnabi was the person who had gone to call Dr.
Rao to examine Gulabkhan. Dr. Rao came at 8.30 p.m. and declared him to be
dead. It was not necessary for Gulamnubi to relate the details of the
occurrence to Dr. Rao as he himself had not witnessed it Another reason given
for discarding the evidence of Gulamnabi is with reference to the evidence of
Rasulbhai that upto 10.00 p.m. no one knew the exact reason for the death of
Gulabkhan. Having accepted the prosecution story about the cause of his death
it was unnecessary to dilate upon the matter any further.
The High Court has not disbelieved the
lodging of the complaint before the police on the statement of Nannubibi at
10.00 p.m. The last reason given is the non-examination of Dr. Rao by the
prosecution. His evidence was of no use to it and the comment of the High Court
is not, therefore, justified.
We have unhesitatingly come to the conclusion
that the Trial Court was right in believing the evidence of the prosecution
witnesses in regard to both the incidents and the occurrence in question
forming part of the second incident. The High Court differed from the view of
the Trial Judge on flimsy and unsustainable grounds.
Now we come to deal with the question of
right of private defence. It is no doubt true that the prosecution did not
explain the injuries on the person of respondent no.1. P.W.5 Dr. S. C. Masalia
who had examined the injuries on the side of the prosecution also examined'
Fatima, respondent no.1 when she was sent to him by the police. Fatima Bibi had
lodged a complaint before, the police which was; found to be a non-cognizable
offence at about 8.00 p.m. on 27-6-1968.
That is Ext-44. In this complaint she stated
that her young one of the goat had gone in the Angana of Gulabkhan. Three
persons named' in the complaint were Gulabkhan, Bai-bibi, mother-in-law of
Gulabkhan and Nannubibi, his wife. The two ladies caught hold of her Odhana and
began to give her blows. of kicks and fists Gulabkhan gave stick blows on the
right hand and so she fell down on the ground and began to shout. The injuries
found on the person of Fatima Bibi were 5 in number. Three contusions on the
right forearm, one contusion on posteric-parietal part of right side of scalp
and one contusion on scapular part of right side of back.
The injuries were all of minor character. In
her statement under section 342 of the Code of Criminal Procedure, 1898
respondent no. 1 stated almost the same story and added that Gulabkhan was
drunk while he was abusing her. Neither in Ext.44 nor in the statement under
section 342 there was a whisper by by respondent no.1 of her having squeezed
the testicles and the private part of Gulabkhan. Nothing was stated to give any
inkling of her having squeezed the testicles of Gulabkhan 999 in exercise of
her right of private defence to protect her from further assault. Nor was any
evidence adduced in Court to give any counter version of the occurrence. No
foundation was laid to enable the court to acquit the respondents granting them
a right of private defence. It did require a pure conjecture and imagination to
hold the respondents not guilty by extending to them the right of private
In a situation like this when the prosecution
fails to explain the injuries on the person of an accused, depending on the
facts of each case, any of the three results may follow :
(1) That the accused had inflicted the
injuries on the members of the prosecution party in exercise of the right of
(2) It makes the prosecution version of the
occurrence doubtful and the charge against the accused cannot be held to have
been proved beyond reasonable doubt.
(3) It does not affect the prosecution case
Question is in which category the present
case falls ? In Munhi Ram and others v. Delhi Administration(1) Hegde, J
delivering the judgment of this Court has said at page 458 "It is true
that appellants in their statement under section 342 Cr. P.C. had not taken the
plea of private defence, but necessary basis for that plea had been laid in the
cross- examination of the prosecution witnesses as well as by adducing defence
evidence. 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 the material on record-see In Re-jogali Bhaige Naiks and another
A.I,R. 1927 Mad. 97. The burden of establishing that plea is on the accused and
that burden can be discharged by showing preponderance of probabilities in
favour of that plea on the basis of the material on record." In the
instant case not only the plea of private defence was not taken by the
respondents in their statement under section 342 but no basis for that plea was
laid in the cross-examination of the prosecution witneses or by adducing any
defence evidence. In our opinion the burden of establishing that plea was not discharged
in any manner by the respondents even applying the test of preponderance of
probabilities in favour of that plea. There is absolutely no material in the
records of this case to lead to any such conclusion. We do not think that the
Trial Judge was right in assuming that respondent no. 1 must have received the
injuries in the first incident. It may well be that she received the injuries
in the second incident. Since prosecution did not come forward to show in what
manner she received these (1)  (2) S.C.R. 455.
1000 injuries, assumption can be made to the
farthest extent in favour of the respondents that respondent no.1 received the
injuries with a stick, may be at the hands of Gulabkhan or any other person on
his side. But surely the assumption could not be stretched to the extent it has
been done by the High Court. The High Court is not right in saying that by the
tripping of the legs Gulabkhan would have fallen on his face and not on his
back. A man may fall on back or on face depending upon the side and the angle
of the tripping. The other error committed by the High Court is when it says :,
"It appears to us to be more probable that while the quarrel was going on
in the Angana of the deceased and the deceased was delivering blows of stick on
the accused no.
1, she squeezedhis testicles in order to
liberate herself from his attack. It appears that she did so while the deceased
was standing and giving blows on her." The deceased was wearing a pant and
it is impossible to imagine that the, squeezing of the testicles could be done
by respondent no. 1 to the extent of causing his death soon after the squeezing
when Gulabkhan was in a standing position. In that position he could have at
once. moved back and liberated himself. The extent of squeezing done in this
case was possible only if respondent no. 1 could sit on his legs after he had
fallen down at his back. This lends further support to the prosecution story
that respondent no. 2 caught his hands from behind meaning thereby from towards
the side of his head, in the front being respondent no. 1 on his legs. In our
opinion, therefore, there was absolutely no basis or material in the records of
this case to enable the High Court to record an order of acquittal- in favour
of the respondents by extending them a right of private defence. Even going to
the maximum in favour of the respondents that respondent no.1 got the blows
with a stick at the hands of Gulabkhan and in the second incident it is
manifest that her action of assault on him was a deliberate counterattack to
cause him such injury which at least was likely to cause his death.
The counter-,attack could in no sense be an
attack in exercise of the right of private defence.
In material particulars the evidence of the
three eye witnesses as also the evidence of dying declaration of the deceased
before P.W. Gulamnabi is so convincing and natural that no doubt creeps into it
for the failure of the prosecution to explain the injuries on the person of
respondent no. 1. The prosecution case is not shaken at all on that account. 1n
our judgment this is a case which falls in the third category 1001 as
enumerated above. In agreement with the Trial Court, we hold that the guilt of
both the respondents have been proved beyond any reasonable doubt.
For the reasons stated above, we allow this
appeal, set aside the order of the High Court and restore that of the Trial
Court as against respondent no. 1 as respects her convictions and sentences and
as against respondent no. 2 only in regard to her conviction. It is no use
sending the young girl back to jail for a few months. While maintaining her
conviction under section 323/114 of the Penal Code, we reduce her sentence to
the period already undergone.
P. B. R. Appeal allowed.