2006 Supreme(SC) 361

2006(3) Supreme 585
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
Arijit Pasayat and S.H. Kapadia, JJ.
Raj Pal & Ors.—Appellants
versus
The State of Haryana—Respondent
Criminal Appeal No. 466 of 2006
(Arising out of SLP (Crl.) No. 5228 of 2005)
Decided on 19-4-2006
Counsel for the Parties :
For the Appellants : U.U. Lalit, Sr. Advocate, Ms Sunita Sharma, Advocate.
For the Respondent : Rajeev Gaur Naseem, T.V. George, Advocates.

IMPORTANT POINTS
1. Non explanation of injuries by prosecution may not affect the prosecution case in all cases and particularly where injuries sustained by accused are minor and superficial or where evidence is so clear and cogent, independent and disinterested plausible, consistent and creditworthy that it outweighs effect of omission.
2. The difference between clause (b) of Section 299 and clause (3) of Section 300 IPC is one of degree of probability of death resulting from intended bodily injury.

Headnote:Indian Penal Code, 1860—Section 304 Part I rw/s 34—Appellants armed with lathis and Jellies came on spot and desisted deceased and PW6 from fixing up gate on site asserting that they had share in the property—Two appellants gave lathi blow on head of deceased and third accused gave Jelli blow on left leg of deceased—PW6 and his father PW7 were also injured—Victim deceased died on next day in hospital—Conviction by trial Court and High Court affirmed it—Plea of accused was of self defence—Contention that accused had suffered serious injuries—Mere non-explanation of injuries by prosecution may not affect the prosecution case where evidence is clear and cogent, so independent and disinterested, so probable, consistent and creditworthy and it outweighs effect of omission—Merely that there was a quarrel and some accused sustained injuries would not confer a right of private defence extending to cause death—Right of private defence pleaded by appellant was rightly discarded—Question of nature of offence—Distinction between a bodily injury likely to cause death and a bodily injury sufficient in ordinary course of nature to cause death—Offence of appellants would fall u/s 304 Part II IPC and 17 years imprisonment would meet ends of justice.

       Held : 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.(Para 11)

       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.(Para 14)

       Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real and if overlooked, may result in miscarriage of justice. The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of degree of probability of death resulting from the intended bodily injury. To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree. The word “likely” in clause (b) of Section 299 conveys the sense of probability as distinguished from a mere possibility. The words “bodily injury.... sufficient in the ordinary course of nature to cause death” mean that death will be the “most probable” result of the injury, having regard to the ordinary course of nature.(Para 18)

       Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. It is not necessary for the purpose of this case to dilate much on the distinction between these corresponding clauses. It will be sufficient to say that clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons - being caused from his imminently dangerous act, approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.(Para 25)

       Taking the totality of the evidence into consideration and the special features noticed, it would be appropriate to convict the accused persons in terms of Section 304 Part II read with Section 34 IPC instead of Section 304 Part I read with Section 34 IPC. Custodial sentence of 7 years would meet the ends of justice.(Para 28)