2001 Supreme(SC) 1459

2001(7) Supreme 710
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
Chief Justice of India and R.C. Lahoti, Ashok Bhan, JJ.
Kashi Ram & Ors. -Appellants
versus
State of M.P. -Respondent
Criminal Appeal No. 320 of 2000 (with Crl. A. No. 63 of 2000)
Decided on 17-10-2001
Counsel for the Parties :
For the Appellant : J.c. Batra, Sr. Advocate, G.C. Tyagi, Bhanu Pratap Tyagi and L.N. Gupta, Advocates.
For the Respondent : Ms. Vibha Dutta Makhija, Uma Nath Singh and Ms. Bharati, Advocates.

VERY IMPORTANT POINT
High Court was wrong in convicting 7 out of 8 accused acquitted by Trial Court. One of the accused dying in due course Appeal by 5 accused for reasons stated in the judgment. But appeal of accused Ramesh was partly allowed. His conviction was altered to Section 304 Part II and under Arms Act 27 from that of 302/149 IPC 148 IPC and Section 27 of Arms Act.

Headnote:(i) Indian Penal Code, 1860-Sections 148, 302, 302 r/w 149, 324 r/w 149-Arms Act, 1959-Sections 25 and 27-Eight accused persons were tried for offences under IPC and Arms Act for murdering 3 and injuries three by forming unlawful assembly armed with sum, pharsa and lakes-Trial Court acquitted then (see paras 17 and 18)-High Court in appeal against acquittal convicted 7 but upheld acquittal of one (Prabhu)-(see paras 1 r/w 19)-Appeals against to Supreme Court-Out of 7, one dying-Contention of accused-Appellants that the factum of accused Prabhu haring sustained serious injuries, unexplained by prosecution, the prosecution storey should be discarded and all the accused acquitted-Whether can be accepted in toto?(No, only in part) (Para 20)-Judgment of High Court found suffering from several infirmities-Each of the reasons of trial Court to aquit the accused not disloged (Para 2)-Few relevant and factual aspects overlooked by High Court (i) Investigation not taking proper account of serious injuries on accused Prabhu (Para 22)-Onus on accused to prove right of private difena is not as heavy as on prosecution to prove the case (Para 23)-Criticism and discarding accused right of self defence on ground of that place not take in examination u/s 313 Cr.P.C. wrongly (Para 24)-Result-High Court is not right in reversing the acquittal.

       (ii) Indian Penal Code, 1860-Sections 96 to 102-Law of Private defence-Whether applies to save the life of another? (Yes)-Accused Prabhu setting serious injuries in incident-To save him gun shots fired by Ramesh and others-Three died-Three received injuries-Ramesh is guilty on he has exceeded his right but others are not-Result-Ramesh s convection and sentence altered, other are acquitted. (I.P.C. 1973-Sections 304 Part II and Evidence Act-Section 105-Cr.P.C. 1973-Section 313-Arms Act, 1959-Section 27)-Case Law discussed.

       Held : We do not deem it necessary to state the law of private defence of person in very many details, as, for our purpose, it would suffice to notice a few provisions of the Indian Penal Code and re-state only a few relevant and settled principles. Section 96 provides that nothing is an offence which is done in exercise of the right of private defence. Under Section 97 every person has a right, subject to the restrictions contained in Section 99, to defend his own body, and the body of another person, against any offence affecting the human body. Under Section 99 the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Under Section 100, right of private defence of the body extends to causing death if the offence which occasions the exercise of such right is an assault which reasonably causes an apprehension of death or grievous hurt, amongst others. Under Section 101, save as provided by Section 99, the right extends to the voluntary causing to the assailant of any harm other than death. Under Section 102 the right once available continues as long as an apprehension of danger to the body continues. When the apprehension of danger has ceased and yet a person continues his attack, he exceeds the right of private defence. Reverting to the case at hard, we have already noted the injuries to accused Prabhu. These injuries are not explained by any of the prosecution witnesses. We have also found, and as was found by the trial Court as well, that the scene of the incident was near the house of the accused persons and therefore it is highly probable that the incident which resulted in injuries to both the sides did not take place either near the houses of anyone belonging to the prosecution party or on village commonway where the accused Ramesh had tried to unload from the tractor-trolley and spread the mustard straw. There was only some verbal exchange at that place. The accused Ramesh had returned to his house. It is Brindawan, Lakhan, Siya Ram Sundera and Mahendra, the members of the Prosecution party who had assembled near the house of the accused persons and were arned with such weapons as had resulted in injuries on the person of accused Prabhu. At least one of the persons of the prosecution party was armed with a sharp weapon with which was caused an incised wound on head, a vital part of the body, coupled with fracture of frontal bone of accused Prabhu. One of the injuries caused to accused Prabhu could have been result of a gum shot leaving a pellet embedded below mandible area. Other injuries cause to him could not have been self-inflicted. A grievous hurt was caused and therefore an apprehension that the prosecution party would persist in assault which could have resulted in further grievous hurt or death being caused was reasonably caused in the mind of accused Prabhu. Accused Ramesh, real brother of Prabhu and other persons present there were justified in exercising right of private defence and causing reasonable harm to the members of the prosecution party who were joining in assault wherefrom a reasonable apprehension could be anticipated. On teh principles already stated hereinabove and in the circumstances in which the accused persons were placed, their right of private defence extended even to the extent of causing death so long as the apprehension continued. At the trial the first six witnesses examined by the prosecution were formal witnesses. Sundera, PW7 is the first witness examined by the prosecution at the trial deposing to the incident. In this Statement, during cross-examination, the plea that the accused persons were acting in exercise of right of private defence of person was specifically introduced by suggesting that they were the members of the prosecution party who were the aggressors and the accused were acting only in defence of their person. They wielded their weapons when accused Prabhu was being assaulted and was under apprehension of being killed or suffering grievous hurt. The injuries on the side of the prosecution party is a circumstance revealing the real story to some extent. On the person of Siya Ram there are two abrasions and one incised would on occipital back part of the head, all simple in nature. Sundera has sustained one incised would on lower part of head. Other injuries are contusions, abrasion and swelling on non-vital parts of the body. Mahendra has sustained one incised would and two swellings. The injury caused by sharp weapon was minor in nature though he had sustained a fracture on left wrist. Brindawan, the deceased had sustained pellet injuries caused by a single fire which were on the thigh. So also Lakhan, the deceased had sustained a single gun shot wound on the thigh. Neither Brindawan nor Lakhan had sustained gun shot injury on any vital part of the body. Dr. R.S. Sikarwar admitted during the cross-examination that injury to Brindawan should have been caused while he was in a standing position and the person firing the shot was in a sitting position. Similar is the opinion, expressed by Dr. Sikarwar, as to the injury sustained by deceased Lakhan. In Dev Raj and Anr. v. State of Himachal Pradesh, AIR 1994 SC 523 this Court has held that where the accused received injuries during the same occurrence in which complainants were injured and when they have taken the plea that they acted in self-defence, that cannot be lightly ignored particularly in the absence of any explanation of their injuries by the prosecution. The High Court has on appreciation of evidence, so far as the injuries caused by the accused persons and the specific roles assigned to them are concerned held that accused Ramesh and Inder Lal resorted to firing towards to victim who were running for shelter and therefore their offences fell under Sections 148 and 302/149 IPC and Section 27 of the Arms Act. As to accused Inder Lal, the High Court has refused to record any specific finding in view of his having expired during the pendency of the appeal. As to accused Nanak Ram the High Court held that although he had aiming at injured Mahendra who had a narrow escape but as there was no charge under Section 307 IPC framed against him he could not be convicted thereunder though he was liable to be convicted under Section 148 IPC and Section 27 of the Arms Act. Accused Suresh and Ratna having been found to have caused some simple injuries by lathi, have been convicted under Section 147 and 323/149 IPC. Accused Prabhu has been found to have inflicted a farsa injury on the head of Mahendra and his act of causing such injury has been held justifiable in self defence and hence he has been extended benefit of doubt from the charges levelled against him. Could any of the accused persons have been held guilty of any offence for causing hurt with the aid of Section 149 IPC? We have already held that the accused persons had right of private defence of person of accused Prabhu available to them. The right of private defence need not necessarily be exercised for the defence of one s own person; it can be exercised for the defence of the person of another one. So long as an assembly of persons is acting in exercise of the right of private defence it cannot be an unlawful assembly. An assembly though lawful to begin with may in the course of events become unlawful. So long as the accused persons were acting in exercise of right of private defence, there object was not unlawful and so there was no unlawful assembly but once they exceeded the right, the assembly ceased to be lawful and became an unlawful assembly. There too only such of the members of the assembly who shared the object of doing anything in excess of right of private defence, alone would be liable to be punished for the acts committed in prosecution of the common object or for their individual unlawful acts. The assemblage of accused persons, five or more in number, cannot wholly be held liable to conviction shared the common object of doing anything in excess of the exercise of the right of private defence. In the case at hand, the High Court has not arrived at a finding that any of the injuries other than the one inflicted by Ramesh were so inflicted after the members of the complainant party had taken to their heels and yet Ramesh fired at them. If they had caused any injury before the members of the prosecution party had turned their back and started running away from the scene of occurrence, there was no unlawful assembly and none could have been convicted either under Section 148 or with the aid of Section 149 IPC. There is no finding arrived at by the High Court, and there is no positive evidence available on record to hold, that any accused (other than Ramesh, as to whom we are dealing just hereinafter) caused any injury to anyone after the right of private defence had ceased to be available. The only accused whose act needs to be determined for the purpose of finding out what offence, if any, he has committed, is accused Ramesh. Exception II to Section 300 IPC provides that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of person against whom he has exercised such right of defence without pre-meditation, and without any intention of doing more harm than is necessary for the purpose of such defence. We have found the deceased Brindawan having sustained injury by gun shot fired by accused Ramesh. Such injury was caused when the members of the prosecution party were fleeing away though to begin with the accused Ramesh had available to him the right of private defence of person. The right was exceeded and therefore the act of accused Ramesh would be covered by Exception II to Section 300 of IPC. The injuries caused to Brindawan show the pellets having injured lower part of the body of Brindawan. It cannot be said that accused Ramesh intended to caused death or cause such bodily injury as was likely to cause death though he should be attributed with the knowledge that the injury caused by him was likely to caused death. His individual act of causing injury to deceased Brindawan is therefore punishable under Section 304 Part II IPC. So also his subsequent fire aimed at complainant Sundera but which accidentally hit Jamuni Bai Dhoban would also be punishable under Section 304 Part II of the IPC with the aid of Section 301 IPC. If he had injured the complainant Sundera, he would have been liable to be convicted under Section 304 Part II IPC. In spite of complainant Sunder alias Sundera having escaped unhurt and yet Jamuni Bai Dhoban having been injured tough not aimed at, on the doctrine of transferred malice as contained in Section 301 IPC the liability of the accused remains the same. In the FIR, the version of Sundera was that Jamuni Bai had intervened to rescue him when she got injured. This story was abandoned by Sundera whilst in witness box and he maintained that though the second shot by accused Ramesh was aimed at him it hit Jamuni Bai instead of him. No prosecution witness states where the gun held by accused Ramesh was aimed at. Prosecution version coming through the three eye witnesses that accused Ramesh was in standing posture, facing them, when he fired the gun, is not supported by, rather belied by, medical evidence. The fact remains that Jamuni Bai was neither airmed at nor intended to be harmed by accused Ramesh. In case of accidental injury attracting applicability of transferred malice under Section 301 IPC and having held that the act of the accused was covered by Section 304 IPC, the Court should lean in favour of convicting the accused under Part-II of Section 304 if it is in doubt as to which one of the two parts of Section 304 IPC would be attracted. This would be consistent with the basic tenet of extending benefit of doubt in criminal jurisprudence. Accordingly, we hold the accused Ramesh guilty under Section 304 Part-II for causing the death of Jamuni Bai. In similar circumstances this Court has held in Yogendra Morarji v. State of Gujarat, AIR 1980 SC 660, Dev Raj v. State of Himachal Pradesh (supra) and Tara Chand and Anr. v. State of Haryana, AIR 1971 SC 1891 the act of the accused falling under Exception II to Section 300 IPC and hence punishable under Section 304 IPC and not under Section 302 IPC. In Yogendra Morarji s case this Court has also observed that this was a circumstance which could be taken into account in mitigation of the sentence. For the foregoing reasons Criminal Appeal No. 320/2000 filed by Kashiram, Teekaram, Suresh, Ratna @ Ratanlal and Nanakram is allowed. Criminal Appeal No. 63/2000 filed by accused Ramesh is partly allowed. All the convictions recorded and sentences passed by the High Court are set aside. Instead accused Ramesh is heto liable to conviction under Section 304 Part II IPC on two heads. He is convicted accordingly and sentenced to 7 years rigorous imprisonment each on the two counts. His conviction and sentence under Section 27 Arms Act is maintained. All the sentences are directed to run concurrently. Accused Ramesh shall surrender to serve the sentence if not already served out. All the other accused-appellants, i.e. other than Ramesh, arae acquitted. Their bail bonds are discharged. (Paras 25 to 33)