Bihari Rai Vs. State of
Bihar(Now Jharkhand) [2008] INSC 1643 (26 September 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1536 OF 2008
(Arising out of S.L.P. (Crl.) No.862 of 2007) Bihari Rai ..Appellant versus
State of Bihar (Now Jharkhand) ..Respondent
Dr. ARIJIT PASAYAT,
J.
1.
Leave
granted.
2.
Challenge
in this appeal is to the judgment of a Division Bench of the Jharkhand High
Court partially allowing theappeal of the appellant, while directing acquittal
of co-accused persons. The appellant was convicted for an offence punishable
under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short
`IPC') by learned Vth Additional Sessions Judge, Dumka, in Sessions Case No.156
of 1980/21 of 1985. The High Court altered it to Section 304 Part I IPC, and
sentence of seven years was imposed.
3.
The
prosecution version in a nutshell is as follows:
Ramfali Rai (PW.1) is
the son of Badri Rai (hereinafter referred to as the `deceased'). There was a
long standing dispute pending between the appellant's and the deceased's
family. Proceedings were initiated under Section 145 of the Code of Criminal
Procedure, 1973 (in short `Cr.P.C.') and several suits were also filed. The
dispute between the two families was pending from the year 1952 and according
to the prosecution, it is said to be the motive for the unfortunate occurrence.
2 On 28.6.1978, the
deceased left for his field accompanied by his servant Mantu Rai. Ramfali Rai
(PW.1) stayed at home and at about 9.00 a.m., he heard shouts, "Maro
Maro" and came out of the house and started running towards the north from
where the shouts were emanating. Reaching some distance, he found his father,
Badri Rai, being chased by the accused-appellant Bihari Rai and the other two
accused. Tulsi Rai and Ghutru Rai, were also found at that place. Accused
Bihari Rai, inflicted three blows - two on the head and one on the hand of the
deceased-Badri Rai, and the deceased fell down and the accused 2 and 3 also
gave lathi blows and thereafter all the three accused left the place. The
occurrence was witnessed by Ramfali Rai (PW.1), Horil Rai (PW.2), Kuwa Rai
(PW.5), Gopi Rai (PW.6) and Jarman Rai (PW. 7). In the meantime, information
was received at Jama Police Station by Sudhir Kumar Sinha, Sub-Inspector, that
some occurrence had taken place in the village - Barudih. The said Sub-
Inspector, after making an entry in the station diary, left for the scene of
occurrence and reached there, where the fardbeyan, Ext. 5, given by PW.1, was
recorded at 3.00 p.m.
The said fardbeyan
was registered as a complaint and the printed first information report of the
said complaint is Ext.6.
Ext.1 is the
signature of Ramfali Rai (PW.1) in the said complaint, Ext.5. Investigation was
taken up and the inquest was conducted, which stands marked as Ext.2/2, during
which witnesses were examined. After the inquest, the body was sent to the
hospital with a request to the Doctor to conduct autopsy. Dr. Upendra Prasaad
Sinha (PW.9), Civil Assistant Surgeon, Sadar Hospital, Dumka, conducted post-
mortem on the body of the deceased, Badri Rai, and he found the following
injuries:
(i) Incised wound
1" x =" x 1" on outer side of left arm;
(ii) Incised wound
8" x 1" x 4" cutting the posterior left side of the scalp bone
including the brain substance with a large haemorrhage (in the post mortem
report the expression "haematoma" and not haemorrhage as has been
deposed by the Doctor inside the brain substance;
4 (iii) Incised
wound 6" x 1" x 31/2" cutting the posterior right side of the
scalp bone including the brain substance with a large haemorrhage (here also
the expression in the post mortem report is haematoma) inside the brain
substance;
The doctor issued the
post mortem certificate, Ext. 4, with his opinion that injuries (ii) and (iii)
found on the body are sufficient in the ordinary course of nature to cause
death and that death must have occurred within 36 hours.
4.
After
completion of investigation, the charge sheet was filed against the accused
persons.
5.
The
Trial Court placed reliance on the evidence of the eye-witnesses PWs. 1, 2, 5,
6 and 7 and found the appellant and the co-accused persons guilty. In appeal,
the High Court found that Exception 4 to Section 300 IPC applied and
accordingly directed conviction of the appellant in terms of Section 304 Part-I
IPC and sentenced him to undergo rigorous imprisonment for seven years.
However, the co-accused persons were acquitted. In appeal before the High
Court, the primary stand was that in the fardbeyan given by PW.1 the names of
PWs. 2, 6 and 7 had not been given. Additionally, it was submitted that having
accepted that the occurrence took place in course of sudden quarrel, the trial
Court should have accepted the plea relating to right of private defence.
6.
In
the judgment the accused persons were described as A1, A2 and A3. The present
appeal is by A1.
7.
The
High Court found that the evidence of PW.1 was to the effect that on hearing
the cries of his father he came out of the house, ran towards the place and
found the appellant inflicting injuries on the deceased. It was therefore,
possible that he could not have noticed the presence of PWs.2,6 and 7.
However PW 6 has
categorically stated about the presence of all the eye witnesses. So far as the
plea relating to right of private defence is concerned, it is to be noted that
no evidence in that regard was adduced. On the contrary, the High Court
referred to the evidence of PWs. 2,6 and 7 to the effect that just before the
occurrence the accused and the first deceased had quarreled and thereafter
first accused inflicted blows with an axe, which he had in his hand, on the
deceased. PW 1 was not present when the quarrel commenced and he came to the
scene of occurrence on hearing the cries of his father and saw the appellant
inflicting blows on the deceased. In that background Exception 4 to Section 300
was applied.
8.
In
support of the appeal, the stands taken before the High Court have been
reiterated by learned counsel for the appellant. Learned counsel for the state
on the other hand supported the judgment of the High Court.
9.
It
needs to be noted that in addition to the stand taken before the High Court
learned counsel for the appellant submitted that the I.O. had not examined the
present case and first information regarding the incident which was recorded in
the station entry has also not been produced in the Court. It is also pleaded
that since right of private defence was exercised conviction cannot be
recorded.
10.
So
far as the stand regarding non-mention of the name of PWs 2,6 and 7 are
concerned, it is to be noted that as rightly observed by the trial court and
the High Court on hearing the cries of his father the deceased PW 1 was rushing
towards the place of occurrence. Obviously, the focus was on what was happening
to his father. In any event, inspite of incisive cross-examination nothing
fragile was surfaced in his evidence.
11.
It
has also been established by prosecution that the station diary entry related
to some vague information about disturbance in the village , that cannot take
place of the FIR.
12.
So
far as the non-examination of one of the I.O. is concerned, it is to be noted
that the officer in question had only conducted the inquest. The inquest report
was exhibited without any objection and there was no challenge to the
correctness of the report. That being so, non-examination of the officer in
question does not in any way corrode the credibility of the prosecution
version.
13.
The
number of injuries is not always a safe criterion for determining who the
aggressor was. It cannot be stated as a universal rule that whenever the
injuries are on the body of the accused persons, a presumption must necessarily
be raised that the accused persons had caused injuries in exercise of the right
of private defence. The defence has to further establish that the injuries so
caused on the accused probabilises the version of the right of private defence.
Non- explanation of the injuries sustained by the accused at about the time of
occurrence or in the course of altercation is a very important circumstance.
But mere non-explanation of the injuries by the prosecution may not affect the
prosecution case in all cases. This principle applies to cases where the
injuries sustained by the accused are minor and superficial or where the
evidence is so clear and cogent, so independent and disinterested, so probable,
consistent and creditworthy, that it far outweighs the effect of the omission
on the part of the prosecution to explain the injuries. [See: Lakshmi Singh v.
State of Bihar (AIR 1976 SC 2263). A plea of right of private defence cannot be
based on surmises and speculation. While considering whether the right of
private defence is available to an accused, it is not relevant whether he may
have a chance to inflict severe and mortal injury on the aggressor. In order to
find whether the right of private defence is available to an accused, the
entire incident must be examined with care and viewed in its proper setting.
Section 97 deals with the subject- matter of right of private defence. The plea
of right comprises the body or property (i) of the person exercising the right;
or (ii) of any other person; and the right may be exercised in the case of any
offence against the body, and in the case of offences of theft, robbery,
mischief or criminal trespass, and attempts at such offences in relation to
property. Section 99 lays down the limits of the right of private defence.
Sections 96 and 98 give a right of private defence against certain offences and
acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section
99. To claim a right of private defence extending to voluntary causing of
death, the accused must show that there were circumstances giving rise to
reasonable grounds for apprehending that either death or grievous hurt would be
caused to him. The burden is on the accused to show that he had a right of
private defence which extended to causing of death. Sections 100 and 101, IPC
define the limit and extent of right of private defence.
14.
Sections
102 and 105, IPC deal with commencement and continuance of the right of private
defence of body and property respectively. The right commences, as soon as a
reasonable apprehension of danger to the body arises from an attempt, or threat
to commit the offence, although the offence may not have been committed but not
until that there is that reasonable apprehension. The right lasts so long as
the reasonable apprehension of the danger to the body continues.
In Jai Dev v. State
of Punjab (AIR 1963 SC 612), it was observed that as soon as the cause for
reasonable apprehension disappears and the threat has either been destroyed or
has been put to route, there can be no occasion to exercise the right of
private defence.
15.
The
above position was highlighted in Rizan and Another vs. State of Chhattisgarh,
through the Chief Secretary, Govt. of Chhattisgarh, Raipur, Chhatttisgarh (2003
(2) SCC 661), and Sucha Singh and Anr. v. State of Punjab (2003 (7) SCC 643).
16.
Merely
because there was a quarrel and some of the accused persons sustained injuries,
that does not confer a right of private defence extending to the extent of
causing death as in this case. Though such right cannot be weighed in golden
scales, it has to be established that the accused persons were under such grave
apprehension about the safety of their life and property that retaliation to
the extent done was absolutely necessary. No evidence much less cogent and
credible was adduced in this regard. The right of private defence as claimed by
the accused persons have been rightly discarded.
17.
The
High Court has referred to the evidence of PWs. 2,6 and 7 to conclude that just
before the arrival of PW 1 at the scene of occurrence there was a quarrel
between the deceased and the accused. In that view of the matter, the High
Court accepted the plea that the occurrence took place in the course of sudden
quarrel.
18.
As
rightly observed by the trial court and the High Court there was no question of
exercise of right of private defence as claimed by the appellant.
19.
The
accused has been rightly convicted under Section 304(1) IPC. Custodial
sentence, as imposed, also does not appear to be inappropriate in any manner.
20.
The
appeal deserves dismissal, which we direct.
......................................J.
(Dr. ARIJIT PASAYAT)
......................................J.
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