Judgment:
Dilip Raosaheb Deshmukh, J.
1. This appeal is directed against the judgment dated 21.09.1999 delivered by the 2nd Additional Sessions Judge, Raigarh in Sessions Case No. 150/98 whereby the appellants were convicted for offence under Section 302 read with Section 34 and Section 201 read with Section 34 of the I.P.C. and sentenced to imprisonment for life under Section 302 read with 34 of the I.P.C. and to rigorous imprisonment for 7 years under Section 201 read with Section 34 of the I.P.C.
2. Admittedly, appellant No. 1 Rati Ram is the son of appellant No. 2 Tiharu. Deceased Horilal had died a homicidal death on 02.07.1998. Following injuries were found during autopsy by Dr. Anil Kumar Tirkey P.W.15 on the beheaded body of Horilal:
i. Head of Horilal was separated by a sharp cut from the root of the neck. Cut margins were as shown in the figure to the post-mortem report Ex.P.17.
ii. Incised wound over right side of chest size 1' x 1/3' x full deep upto thoracic cavity.
iii. Incised wound near injury No. ii size 1+ x 1/3' x full deep upto thoracic cavity.
iv. Incised wound lateral to injury No. iii size 1 +' x 1 1/3' x deep upto thoracic cavity Injuries No. ii to iv were at the level of 5th and 6th rib.
v. Linear incised wound 6' long skin deep on right side of chest upto costal margin vi Incised wound over left supra clavicular fossa size 2' x 1' x full muscle deep. Head was separated by sharp cut from the root of neck
vii. Incised wound on right medial and clavicular 2 +' x,' x full muscle deep. vi Incised wound over left supra clavicular ii fossa size 3' x 1' x full muscle deep. There was fracture of right clavicle. There was an incised wound over right lobe of liver 3' X 1'
Dr. Anil Kumar Tirkey P.W. 15 opined that death of Horilal was due to cutting of great vessels of the neck and injury over both sides of vessels of supra Clavicular fossa and was homicidal in nature.
3. The law was set into motion by Bhagau Ram P.W.1 who lodged F.I.R. Ex. P.1 at 18.30 hours at Police Station Sarangarh and merg intimation Ex.P.35 at 18.40 hours on 02.07.1998. In the F.I.R. Ex. P.1, Dhaneshwari, aged 16 years, niece of the deceased was stated to have witnessed the gruesome murder of Horilal and to have informed Bhagau Ram that Rati Ram and Tiharu had murdered Horilal and after beheading him Rati Ram had taken the head part with him in a bag. Bony parts of remains of the head of Horilal eaten up by animals, black hair and one plastic bag were also recovered from a cave of Bamhan Daipathar forest and seized vide Ex.P.7 on 09.07.1998 at the instance of the appellant Rati Ram. Inquest Ex.P.4 was recorded on 09.07.1998. On 09.07.1998 vide Ex.P.9 one iron sabbal and vide Ex.P.8 one Tangia with a wooden handle were seized from the appellant - Rati Ram on memorandum. Bloodstained full shirt and gamcha of Rati Ram were seized vide Ex.P.10 on 09.07.1998. From the place of occurrence, the bloodstained soil was also seized from the appellant Rati Ram vide Ex.P.11 on 09.07.1998. On completion of investigation, prosecution under Section 302, 201 read with Section 34 of the I.P.C. was launched against the appellants.
4. The appellants abjured the guilt, pleaded innocence and led no evidence. Although the prosecution examined as many as 20 witnesses, it did not examine Dhaneshwari, aged 16 years, who was cited as an eye witness. The trial Court held that death of Horilal was homicidal in nature. It further held that Horilal armed with a wire hunter (Koda) had gone to the house of the appellant Rati Ram and had, after pelting stones over his house assaulted Rati Ram with the wire hunter (Koda) which got stuck in the fence. Thereafter, Rati Ram had assaulted Horilal with the sabbal and Tiharu had assaulted Horilal with a stone. The trial Court did not consider whether the appellants had, while causing the death of Horilal, exercised the right of private defence of their body and convicted and sentenced the appellants as shown in paragraph 1 (supra).
5. Shri Shailendra Dubey, learned Counsel for the appellants argued that prosecution had failed to prove the involvement of the appellant Tiharu in causing the death of Horilal. The evidence of Ghanshyam P.W.11and Shani P.W.13, both child witnesses, could not be relied on since the possibility that they did not witness the actual assault on Horilal could not be ruled out. So far as the testimony of Kanhuram P.W.10 is concerned, the defence that the fatal injuries sustained by Horilal were caused by appellant Rati Ram in exercise of right of private defence of his body was probable. Reliance was placed on Narain Singh and Ors. v. State of Haryana AIR 2008 SCW 2641 in support of the arguments that it was not necessary for the appellant Rati Ram to have pleaded in so many words that he had acted in self defence because the testimony of Kanhuram P.W.10 and even the testimony of child witnesses Shani P.W.13 and Ghanshyam P.W.11 left no room for any doubt that Horilal was the aggressor and had, while armed with a Tangia and wire hunter (Koda) gone to the house of appellant Rati Ram and had not only pelted stones on their house, which had injured appellant Tiharu but had also swung the hunter (Koda) on appellant Rati Ram, which had missed the aim and got stuck in the fence. Learned Counsel argued that the appellant, facing an imminent danger or an apprehension of threat to his life, could not 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. It was further argued that medical evidence of Dr. A.K. Tirkey P.W.15 did not reveal that the injury No. (ii) to (viii) in paragraph 2 (supra) were ante-mortem in nature. It was urged that the appellants had already undergone the sentence awarded to them under Section 201 read with Section 34 of the I.P.C. as they were in jail for a period of over 10 years i.e. from 10.07.1998 till date.
6. On the other hand, Shri Akhil Mishra, learned Dy. Government Advocate argued in support of the impugned judgment.
7. Having considered the rival submissions, we have perused the record of Sessions Case No. 150/98. No explanation was offered by the prosecution for not examining Dhaneshwari, aged 16 years, an eye-witness. The trial Court while appreciating the evidence led by the prosecution did not examine whether the appellants had, while causing the death of Horilal, acted in exercise of right of private defence of their body. Conviction of the appellants is founded on the testimony of Ghanshyam P.W.11, Shani P.W.13 and Kanhuram P.W.10.
8. Ghanshyam P.W.11 the son of the deceased and Shani P.W.13 are child witnesses. Their testimony needs to be examined with caution. Although in paragraph 1, Ghanshyam P.W.11 deposed that he saw the appellant Rati Ram assaulting Horilal by a sabbal and the appellant Tiharu by a stone, yet in his cross-examination, he stated that the fight between the appellants and Horilal had commenced after he ran away from the spot. He categorically stated that Horilal had gone to the Badi of Rati Ram and thereafter no sooner the quarrel started he had gone to his house and did not witness the quarrel. He also deposed that on seeing the dead body of Horilal after the quarrel he had assumed that the appellant Rati Ram must have killed Horilal. We are of the considered opinion that it would be highly unsafe to place reliance on the testimony of this witness, so far as the assault by the appellants on Horilal is concerned.
9. Ghanshyam P.W. 11 admitted in cross-examination that his father Horilal, armed with Tangia and a wire hunter (Koda), had gone to the house of Rati Ram. Shani P.W.13, child witness, stated that at the time of occurrence while he was playing with Ghanshyam P.W.11 he saw Horilal armed with a Tangia and a wire hunter (Koda) go to the house of Rati Ram and assault Rati Ram by the wire hunter (Koda) which got stuck in the fence. He further admitted that Horilal was pelting stones over the house of Rati Ram and was proclaiming that he would not spare Rati Ram and kill him. Panchmati P.W.12 who was declared hostile by prosecution stated that a stone pelted by the deceased Horilal had struck Tiharu. The testimony of these witnesses leaves no room for any doubt that the deceased was not only armed with a Tangia and a wire hunter (Koda) at the time of the occurrence and had gone to the house of the appellant Rati Ram with intent to kill him but was also the aggressor.
10. Kanhuram P.W. 10 testified that while he was laying tiles on his roof, he saw that deceased Horilal came to the house of the appellant Rati Ram and started abusing him and pelting stones over the house. When appellant Tiharu came out of the house, he was struck by a stone thrown by Horilal and fell. Thereafter, appellant Rati Ram emerged from the house. Horilal was armed with a wire hunter (Koda) and a Tangia. From outside the Badi, Horilal assaulted Rati Ram by the wire hunter (Koda) which missed the target and got stuck in the fence and while Horilal was trying to remove the wire hunter (Koda), the appellant Rati Ram assaulted Horilal by a sabbal on the head. Horilal fell to the ground. He thereafter, alighted from the roof and ran away. In cross-examination, he admitted that Horilal had gone to kill Rati Ram and if the wire hunter (Koda) had not missed the target, Rati Ram would have died. He asserted categorically that at the time of assault by the wire hunter (Koda) by Horilal on Rati Ram, Tiharu was not present at the place of occurrence. He further deposed that Horilal had, earlier sent his son to the house of appellant Rati Ram for calling him so that he could finish him and when the appellant Rati Ram did not arrive, Horilal went to the house of Rati Ram to kill him.
11. In his testimony, Shani P.W.13 also stated in cross-examination that Horilal while being armed with Tangia and a wire hunter (Koda) had gone to the house of Rati Ram to kill him and had also assaulted Rati Ram with the wire hunter (Koda). He further stated that Horilal was proclaiming that he would not spare appellant Rati Ram and would kill him. He also admitted that Horilal was repeatedly pelting stones on the house of Rati Ram.
12. It is well settled that that the accused need not prove the existence of right of private defence beyond reasonable doubt. It is enough for him to show that the preponderance of the probability is in favour of his plea of right of private defence of body. For exercising the right of private defence of body by causing the death of the aggressor, it is not necessary that some injury must always be caused to the person acting in the right of private defence. The right of private defence of body commences as soon as a reasonable apprehension of danger to the body arises from an attempt and lasts so long as the reasonable apprehension of danger to the body continues. The right of private defence under Section 100 of the I.P.C. cannot be weighed in golden scale in the spur of moment and in the heat of circumstances. What is necessary for the defence to prove under the first explanation to Section 100 of the I.P.C. is that there was a reasonable apprehension that if death of the assailant is not caused, death will otherwise be the consequence of such assault.
13. From the testimony of Ghanshyam P.W.11, Shani P.W.13 and Kanhuram P.W.10, the scenario which clearly emerges is that prosecution has failed to prove either the actual participation of appellant Tiharu in causing the death of Horilal or the sharing of common intention with the appellant Rati Ram. There is also no material on record to show that the appellant Tiharu had beheaded Horilal or concealed the blood stained head part of Horilal in a cave in Bamhan Daipathar forest. Conviction of the appellant Tiharu under Section 302 read with Section 34 of the I.P.C. and Section 201 read with Section 34 of the I.P.C. and the sentences awarded thereunder are liable to be set aside.
14. The evidence led by the prosecution shows that Horilal was determined to kill Rati Ram and when Rati Ram did not respond to his call, Horilal had gone to the house of appellant Rati Ram armed with a Tangia and a wire hunter (Koda) and had pelted stones on the house of the appellants. One of the stones had struck appellant Tiharu. It further shows that the deceased Horilal was the aggressor and had first assaulted appellant Rati Ram by the wire hunter (Koda) and had he not missed the target, appellant Rati Ram would have died. Appellant Rati Ram had not gone to the house of Horilal despite being called. Deceased Horilal had come fully armed to the house of Rati Ram with intent to kill him. Not only this, he had pelted stones and challenged Rati Ram to come out and when Rati Ram actually emerged from the house, Horilal had also swung his wire hunter (Koda) on Rati Ram. There is no evidence whatsoever to even suggest that Rati Ram had in any manner provoked Horilal. In this view of the matter, under Section 99 of the I.P.C. in order to save his own life, the appellant Rati Ram could, in exercise of right of private defence, inflict such injury as would be necessary for the purpose of defence. Under exception 2 to Section 300 of the I.P.C. 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.
15. In Narain Singh and Ors. v. State of Haryana (supra), the Apex Court had, while affirming the finding recorded by the trial Court and affirmed by the High Court negativing the exercise of the right of private defence by the appellant, observed as under in para 12:
12. As noted in Butta Singh v. The State of Punjab : 1991CriLJ1464 , a person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. In moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force in retaliation commensurate with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private-defence commences, as soon as the threat becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private-defence can legitimately be negatived. The Court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above a finding of fact.
16. Bearing the above principle in mind, in the present case, there is no direct ocular evidence to show which of the injuries found on the body of Horilal were caused first by the appellant Rati Ram. According to Kanhuram P.W.10, Rati Ram had, in the first place, dealt a blow by the sabbal on the head of Horilal due to which Horilal fell on the ground. Thereafter he fled from the spot. Ghanshyam P.W.11 did not attribute any overt act to appellant Rati Ram in the sense that he did not depose as to the parts of the body of Horilal on which the injury was caused by Rati Ram. However, he did testify that he saw the appellant Rati Ram assaulting Horilal by a sabbal. However, as mentioned earlier, his testimony regarding the assault on Horilal by appellant Rati Ram cannot be relied on. The testimony of Shani P.W.13 that appellant Rati Ram had dealt a lathi blow over the ear of Horilal and thereafter continued to assault Horilal by lathi is also rendered unworthy of credit because the injuries found on Horilal were incised wounds. Despite the above infirmities, considering the fact that Gasia Ram P.W.8 saw appellant Rati Ram holding a sabbal in one hand and a plastic bag showing red colour at the back and thereafter had seen the beheaded body of Horilal leaves no room for any doubt that appellant Rati Ram alone was the author of the injuries found on the dead body of Horilal in the autopsy report Ex.P.17. So far as the assault on the head of Horilal by a sabbal by appellant Rati Ram is concerned, prosecution could not prove this injury because the head of Horilal was separated from his body and was hidden by the appellant Rati Ram in the cave in a plastic bag which was eaten up by the animals and nothing except bones could be found. However, we find that the testimony of Kanhuram P.W.10 that the appellant Rati Ram had dealt a blow on the head of Horilal by the sabbal due to which Horilal fell is wholly reliable. Once Horilal fell to the ground, the apprehension of any threat of death or injury being caused by Horilal to the appellant Rati Ram ended. Therefore, the fact that appellant had brutally beheaded Horilal and assaulted him repeatedly on the thoracic cavity of Horilal with such force that during each assault the penetration of the sabbal in the thoracic cavity was full it can be safely inferred that the appellant Ratiram had exceeded the right of private defence. Therefore, the offence committed by the appellant Rati Ram falls under exception 2 to Section 300 of the I.P.C. and does not travel beyond Section 304 Part I of the I.P.C. The brutal manner in which the appellant Rati Ram beheaded Horilal even though Horilal had fallen to the ground after being assaulted on the skull by the sabbal and the manner in which the appellant Rati Ram repeatedly inflicted incised wounds deep upto the thoracic cavity by the sabbal on Horilal, no leniency deserves to be shown to the appellant Rati Ram towards the sentence awarded by the learned trial Judge.
17. In the result, we partly allow the appeal. We set aside the conviction and sentence awarded by the learned trial Judge to the appellant Tiharu under Section 302 read with Section 34 and Section 201 read with Section 34 of the I.P.C. and acquit the appellant Tiharu of both charges. We affirm the conviction of the appellant Rati Ram under Section 201 read with Section 34 of the I.P.C. and the sentence awarded thereunder but modify the conviction of the appellant Rati Ram under Section 302 read with Section 34 of the I.P.C. and convict him under Section 304 Part I of the I.P.C. while maintaining the sentence of life imprisonment awarded by the learned trial Judge to the appellant Rati Ram.