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2008(7) Supreme 36
SUPREME COURT OF INDIA
(From Jharkhand High Court)
Dr. Arijit Pasayat and Dr. Mukundakam Sharma, JJ.
Bihari Rai — Appellant
versus
State of Bihar (Now Jharkhand) — Respondent
Criminal Appeal No. 1536 of 2008
(Arising out of S.L.P. (Crl.) No. 862 of 2007)
Decided on : 26-09-2008
(b) Criminal Trial – Non-examination of the IO who only conducted the inquest does not in any way corrode the credibility of the prosecution case. (Para 12)
(c) Indian Penal Code, 1860 – Section 97 – 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, non-explanation of the injuries on the accused by the prosecution may not affect the prosecution case. (Para 13)
(d) Indian Penal Code, 1860 – Sections 102 and 105 – Right of private defence commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat to commit the offence – The right lasts so long as the reasonable apprehension of the danger to the body continues. (Para 14)
AIR 1963 SC 612; (2003)2 SCC 661; (2003)7 SCC 643 – Relied upon.
(e) Indian Penal Code, 1860 – Section 97 – 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. (Para 16)
Facts of the case :
1. 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.
2. The Trial Court found the appellant and the co-accused persons guilty.
3. 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.
Finding of the Court :
There was no question of exercise of right of private defence as claimed by the appellant.
Result : Appeal dismissed.
Judgment
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 the appeal 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. 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;
(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 I
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