Ranbir Singh & Ors vs State Of Haryana

Judicial Magistrate, First Class, Sonepat against the eight

accused persons.

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7. PW-8 conducted post mortem examination and

found following injuries on the dead body:

"1. Incised wound 10 x 3 cm present on right parietal area of the skull, anteo-postering, 3 cm lat. to midline, cutting scalp with regular margins. Right parietal bone was fractured in pieces. The right parietal bone is fractured in pieces. Three pieces are driven into the brain. (Right cerebral hemisphere) and surrounding parietal bone is depressed. Brain matter is present in the wound. Clotted blood present around in the layers of scalp, extra-dural and sub-dural area. Right cerebral hemisphere showed haemotoma.

2. Red-brownish contusion on right supra-orbital ridge 3 cm x 2 cm, right eye was swollen.

3. Red-contusion 6 cm x 2 cm back of left arm.

4. Red-contusion 6 cm x 1.5 cm back of right fore-arm."

8. According to PW-8, the cause of death of the

deceased Balwan was head injury. PW-8 also found that the

injuries were ante-mortem in nature and sufficient to cause

death in the ordinary course.

9. From the medical evidence, it is sufficiently

established that death of Balwan was homicidal. As a matter

of fact, the counsel for the appellant did not challenge this

aspect at all.

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10. That in the incident that occurred on September 28,

1990, Balwan died and PW-1, PW-11, PW-13, A-5, A-6, A-7

and A-8 sustained injuries is not in dispute.

11. Dr. Krishan Kumar examined PW-11 at about 10.40

A.M. on September 28, 1990. He found the following injuries

on his person:

"1. A penetrating wound 1 cm x 0.5 x 1 cm deep present on the right side of chest, 6 cm above the right nipple and 9 cm below the sterno clavicular joint. Fresh clotted blood present. No foreign body seen. There is cut mark on the shirt above this injury mark with staining of blood. Adv. X- Ray.

2. An abrasion 0.5 cm x 0.2 cm present on the chest 5.5 cm medially to the injury No. 1 and 2 cm below the manubrium sterni.

3. Complaint of pain chest and respiratory distress."

12. Dr. Krishan Kumar also examined PW-13 at about

11.05 A.M on the same day and he found the following injuries

on the person of PW-13.

"1. An abrasion 5.5 x 1 cm present on the back of right shoulder. Red in colour. Movements normal.

2. An abrasion 6 x 0.2 cm present on the post surface of left shoulder, 3 cm below the tip of shoulder.

3. A contusion 6 x 2.5 cm present on the post surface right fore-arm, 11 cm below the elbow.

6 4. A contusion 6 x 2 cm present on the post surface of left fore-arm, 7 cm above the wrist.

5. A contusion 7 x 2 cm present on the P/L surface of left fore-arm, 14 cm above the wrist.

6. A contusion 5.5 x 2 cm present on the A/L surface of right upper arm, 10 cm above the elbow."

13. On September 28, 1990, Dr. Krishan Kumar also

examined the accused. In the afternoon at about 12.40 P.M.

on September 28, 1990, A-5 was medically examined and

PW-3 found the following injuries on his person.

"1. A reddish contusion 7 x 2.5 cm present on the post surface of left fore-arm, 4 cm above the wrist. There is deformity and swelling around it. The movements of the adjacent joints are restricted. Adv. x-ray.

2. ALW 1 cm x 0.5 cm present on the dorsal aspect of P.I.P. joint of left index finger. Movements were restricted. Advise X-ray.

3. ALW 3 x 0.5 x skin deep present on the palmer aspect of left index finger and clots of blood present. Movements painful.

4. A contusion 5 x 2 cm present on the A/L surface of middle of left fore-arm. Adv. X-Ray.

5. A contusion 1.5 x 0.5 cm present on the posterior surface of left side of back, 12 cm below the tip of shoulder joint. Red in colour.

6. An abrasion 3 x 0.5 cm present on the anterior surface of right thigh, 12 cm above knee."

Injuries Nos. 1, 2, and 3 were subjected to X-ray examination.

A-5 was also radiologically examined by Dr. S.S. Wadhwa

7 (PW-2). As per X-ray report (Ex.PE), A-5 had suffered fracture

of both bones of left fore-arm and dislocation of proximal inter

phalangeal joint of left index finger.

14. PW-3 at about 1.10 P.M. on September 28, 1990

medically examined A-8 and found the following injuries:

"1. ALW 1.5 X 0.5 cm x 0.5 cm present on the right side of scalp, 8.5 cm above the right ear pinna, 13 cms away from the outer canthus of right eye. Fresh clots of blood present. No FB seen. Adv. X-ray.

2. A contusion 6 x 7 cm present on the ante surface of middle of right upper arm. Reddish in colour. Adv. X-Ray.

3. A contusion 5 x 1 cm present on the post surface of right wrist. Movements normal.

4. A contusion 8 x 7 cm present on the post surface of left fore-arm in its middle. There is a swelling and deformity around it. Movements restricted. Adv. X-ray.

5. A contusion 14 x 3 cm present on the post lateral surface of right thigh, 3 cm above knee. Red in colour.

6. A contusion 8 x 2 cm present on the medial surface of left thigh, 10 cm above knee.

7. A contusion 5 x 3 cm present on the medial surface of right leg, 10 cm below the knee.

8. ALW 2.5 x 0.5 cm x 1.5 cm present on the ante surface of left leg, 17 cm below the knee. Clotted blood present. Adv. X-Ray. Movements were painful"

15. A-6 was medically examined by PW-3 on

September 28, 1990 at 1.40 P.M. Following

injuries were found on his person:

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"1. A lacerated wound 9 x 1 cm x bone deep present on the right side of scalp, 10 cm above the right ear pinna, 4 cm above the right eyebrow. Fresh clotted blood was present. No foreign body seen. The injury was advised for X-ray.

2. An abrasion 1.5 x 0.5 cm present on the posterior surface of right wrist. Movements were normal.

3. One abrasion 1.5 x 0.5 cm present on the anterior surface of right thigh, 4 cm above knee.

4. A contusion below the nail bed of left ring finger. The movements were present.

5. An abrasion 6 x 2 cm on the anterior surface of left thigh at its lower 1/3rd."

16. PW-3 at about 2.20 P.M. on September 28, 1990

medically examined A-7 also and found the following injuries:

"1. ALW 1 x 0.3 cm. x 0.5 cm present on the left side of scalp, 10 cm above the left ear pinna 12 cm from the outer canthus of left eye. Fresh clotted blood seen. No FB seen. Adv. X-ray.

2. An abrasion 7 x 1 cm present on the middle of right clavicle.

3. A contusion 17 x 2 cm present on the A/L surface of right upper arm, just above elbow. Movements normal.

4. A contusion 7 x 3 cm present on the post surface of right fore-arm, above the wrist. There is swelling and deformity around it. Movements very painful. Adv. X-ray.

5. ALW 2 x 0.5 cm present on the palmer surface of left little finger at its base. Painful. Movements were normal.

6. A mild swelling just above the base of left little finger.

9 7. An abrasion 2 x 1 cm present on the medial surface of right leg, 14 cm above the medial mallolus. Movements normal.

8. A contusion 10 x 3 cm present on the P/L surface of left leg, 5 cm above the lat. mallolus.

9. An abrasion 5 x 2 cm present over the lateral surface of left thigh, 22 cm above the knee."

17. PW-3 also medically examined A-3 and found

following injuries on his person:

"1. An infected wound 4 x 1.5 cm x scalp deep present on the left side of scalp, 7 cm above the left ear pinna and 12 cm behind and above the outer canthus of left eye.

2. An infected wound 2.5 x 0.5 cm x scalp deep present on the right side of scalp, 11 cm above the right ear pinna."

18. The learned counsel for the appellant strenuously

urged that the incident did not occur in the manner suggested

by PW-1, PW-11 and PW-13. He submitted that as a matter

of fact Balwan (deceased), PW-1, PW-11 and PW-13 had

come armed with lathies to Ram Sarup's Gher and started

inflicting lathi blows to A-5, A-6, A-7 and A-8. To protect

themselves, in their right of private defence, A-1, A-2, A-3 and

A-4 inflicted injuries to Balwan and unfortunately that resulted

in his death. Learned counsel submitted that accused had no

intention whatsoever to cause his death. The learned counsel

would submit that at the highest, A-1, A-2, A-3 and A-4

10 exceeded their right of private defence and for that they may

be liable for culpable homicide not amounting to murder.

Learned counsel submitted that the trial court as well as the

High Court failed to appreciate the defence version in right

perspective which was apparent from the suggestions put to

PW-1, PW-11 and PW-13 in their cross examination as well as

in the statement of the accused under Section 313 Cr.P.C. In

the alternative, he submitted that the case is covered by

Exception 4 to Section 300.

19. The controversy before us is in narrow compass

and that is whether the accused have been able to

probablise that the death of Balwan occurred in exercise of

their right of self-defence and whether they exceeded that

right.

20. Initially, on September 26, 1990, some argument

took place between A-1 and PW-12 with regard to taking out

the buffalos from canal; A-1 pushed PW-12 in canal water.

PW-12 went home crying. Then there was altercation later in

the evening between PW-1 and A-1. A-1 with the help of A-2

and A-5 is said to have inflicted some injuries to PW-1 in that

altercation. In this back ground, obviously it was PW-1 and

11 his family members who had an axe to grind against A-1, A-2

and A-5 and not the accused party. Two days later, on

September 28, 1990, the incident occurred just out-side the

Gher of A-6. The prosecution case is that A-1 and Balwan were

returning after answering the call of the nature and when they

were about to take turn to the street to their house, A-1 and A-2

armed with axe and jailwa respectively and A-3 and A-4 armed

with lathies surrounded Balwan and after exhorting him, A-1

gave an axe blow on the head of Balwan; A-2 also gave blow to

Balwan on his head from log-side of jailwa and A-3 and A-4

gave lathi blows. The prosecution case about commencement

of incident appears to be little doubtful. In our opinion, the

prosecution has not come out with truthful version as to how the

incident commenced. This is so because, according to PW-1,

he was ahead of Balwan by 50 paces. If A-1, A-2, A-3 and A-4

were aggressors, they would have attacked PW-1 as he had

reached Gher of A-6 first and Balwan was about 50 paces

away from him. A-1, A-2, A-3, and A-4 had no direct quarrel

with Balwan. Altercation was exchanged between A-1 and

PW-1 two days before. Why should have they spared PW-1?

The prosecution version is, thus, not in accordance with human

12 probabilities. On the other hand, the defence version is that

PW-1, PW-11 and PW-13 and Balwan were armed with lathies;

they came to the Gher of Ram Sarup (A-6) and started

assaulting A-5, A-6, A-7 and A-8 and in their self-defence they

attacked assailants and as a result of which Balwan died. That

A-5, A-6, A-7 and A-8 sustained multiple injuries in the incident

is admitted by prosecution. The prosecution sought to explain

the injuries on A-5, A-6, A-7 and A-8 by submitting that PW-1,

PW-11 and PW-13 snatched lathies from A-3 and A-4 in their

self-defence and gave lathi blows to A-5, A-6, A-7 and A-8.

However, PW-11 in his cross examination stated that he did not

snatch any lathi from A-3 and A-4. On a careful consideration

of the cross-examination of PW-1, PW-11 and PW-13, the

possibility of the complainant party being aggressors cannot

be ruled out. The defence has been able to probablise that

complainant party attacked first. As a matter of fact, A-5

received six injuries and few of these injuries were grievous.

A-8 sustained eight injuries while A-7 received nine injuries

some of which were grievous. A-6 also received injuries.

When we observe this, we are not oblivious of the fact that

number of injuries on the accused side by itself may not be

13 sufficient to establish right of private defence.

21. The Court should take an overall view of the case

and if a right of self-defence is made out from the evidence on

record, that right should not be construed narrowly because

the right of self-defence is a very valuable right and it has a

social purpose. (Vidya Singh v. State of Madhya Pradesh1).

22. The aforenoticed statement of law exposited in

Vidya Singh1 has been reiterated by this Court in V.

Subramani and Another v. State of T.N.2. In V. Subramani, this

Court went on to observe:

"....Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in the prevailing circumstances on the spot it would be inappropriate, as held by this Court, to adopt tests by detached objectivity which would be so natural in a courtroom, or that which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances."

23. The learned counsel for the appellants has not set

up before us the right of private defence as a total defence.

1 1971 (3) SCC 244 2 (2005) 10 SCC 358

14 His whole emphasis was with reference to Exception 2 to

Section 300 that reads as follows:-

"Exception 2. - 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 the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence."

24. The existence of good faith is a must before the

accused claims benefit of this exception. While acting in good

faith, if the accused has exceeded the right of self-defence and

caused death of a person without pre-meditation and further he

had no intention to causing more harm than was necessary for

the purpose of the defence although in fact more harm was

caused, the benefit of Exception 2 to Section 300 may be

available if the accused was not the aggressor.

25. The burden of proving self-defence is always on

the accused but it is not as onerous as the one which lies with

the prosecution. Such burden can be discharged by

probablising the defence. The accused may discharge his

onus by establishing a mere preponderance of probabilities

either by laying basis for that plea in the cross examination of

prosecution witness or by adducing defence evidence.

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26. The High Court and the trial court in the instant

case, failed to consider the plea of self-defence set up by the

accused in right perspective. Having considered the matter

thoughtfully, and in what we have discussed above, we are

satisfied that the accused have been able to make out a case

for the benefit of Exception 2 to Section 300.

27. The appellants are, thus, held guilty of the offence

punishable under Section 304 Part I read with Section 34 IPC.

Their conviction under Section 302 read with 34 IPC is altered

to Section 304 Part I read with Section 34 IPC.

28. We are informed that the appellants have already

suffered imprisonment of almost nine years. In the

circumstances, the sentence undergone, for the offence

punishable under Section 304 Part I IPC, shall meet the ends of

justice. Their conviction and sentence under other offences is

maintained.

29. The appeal is, accordingly, allowed in part. The

appellants be released forthwith, if not required in any other

offence.

......................J

16 (D.K. Jain)

......................J (R.M. Lodha)

New Delhi, April 30, 2009

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