Bihari Rai vs State Of Bihar(Now Jharkhand)

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.

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.

3 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;

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(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

5 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

6 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.

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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.

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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

9 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

10 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

11 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.

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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. (Dr. MUKUNDAKAM SHARMA) New Delhi, September 26, 2008

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