Judgment:
H.R. Shelat, J.
1. The appellants through these appeals, challenge the judgment dated 8th October, 1991, delivered by the then learned Additional Sessions Judge, Bhavnagar, in Sessions Case No. 94 of 1988, convicting them of the offence under Section 302, 307 read with 149, 147 and 148 of the Indian Penal Code, and sentencing each one to suffer rigorous imprisonment for life, for the offence under Section 302 read with 149, rigorous imprisonment for 10 years for the offence under Section 307, rigorous imprisonment for one year for the offence under Section 148, but inflicting no separate sentence with regard to the offence under Section 147, Indian Penal Code.
2. The case of the prosecution in brief is that about 5 Kms. away from village Kantasar two rivers meet where there is a dam. Between the two rivers, there is a doab used as grazing land, belonging to the Government. As usual Vagaji Bala, Mulji Bikha, Mepa Sagram, Popat Bijal and Sura Bav, the shepherds, had, on 6th July 1988, in the morning, gone to the grazing land for grazing their goats and sheeps. On the banks of the rivers there are vadas (orchards) of the appellants and other Koli people wherein they grow vegetables. Before 10-30 a.m. one of the goats of Sura Bav, while grazing, entered into the vada of Hirabhai Gobarbhai-the appellant No. 1 in Criminal Appeal No. 8 of 1992. In order to drive out the goat Hira Gobar hurled stones. Sura Bav, therefore, said in growling way. why he was cruel to the mute animal. Hira Gobar was enraged on being chidden. Sura Bav went to the grazing field taking his goat. Fretted Hira Gobar was then eating his heart out. The appellants, and four others namely, Gobar Parmar, Chittar Nana. Goda Vaja and Bachu Vaja engineered a plan to attack and cause injury. In furtherance of their design or common object the appellant in Criminal Appeal No. 854 of 1991 took the stick, Hira Gobar the appellant No. 1 in Criminal Appeal No. 8 of 1992 took the knife, the appellant No. 2 of the said appeal took a spear, the appellant No. 3 took a knife and the appellant No. 4 of that Appeal No. 8 of 1992 took a spear. All the nine persons then rushed to the grazing land and attacked on Sura Bav. Showering the blows with the weapons they were having they caused about 7 grievous injuries to Sura Bav. Muljibhai Bhikhabhai and Mepa Sagram tried to rescue Sura Bav. The appellants and their 4 other cronies also during the onslaught caused grievous injuries to them. Mulji Bhikha sustained 14 injuries mainly on vital parts. Likewise Mepa Sagram sustained 4 injuries on the vital parts. Because of profuse bleeding both Mulji and Mepa Sagram succumbed to the injuries on the spot. Vaghjibhai Balabhai and Popatbhai Bijalbhai who were with the injured Sura Bav for the purpose of grazing cattle saw the incident. They immediately rushed towards the village for help. Hira Sagram and Vaghabhai Bhikhabhai were approaching from the opposite direction as they were going to the grazing land for handing over tiffins to Muljibhai Bhikhabhai and Mepa Sagram. Popatbhai Bijalbhai and Vagjibhai Balabhai informed them about the incident which was going on at that time. All the four then rushed to the scene of offence. Remaining at a distance, Vagjibhai Balabhai and Vaghabhai Bhikhabhai could also see that the appellants and their cronies were showering the blows in rapid succession on Muljibhai Bhikhabhai and Mepa Sagram. They by shouts challenged, with the result the appellants and their cronies ran away. Going nearer they could see that Muljibhai and Mepabhai were mortally wounded and died in a while. Sura Bav who was seriously injured was then by a tractor taken to the hospital. Thereafter, the complaint before the Mahuva police station was lodged. After the usual investigation the police filed the charge-sheet against the appellants and 4 others before the Court of the Judicial Magistrate (F.C.) at Mahuva. The learned Magistrate was not competent to try the case. He, therefore, committed the case to the Court of Session at Bhavnagar. It then came to be registered as Sessions Case No. 94 of 1988. The then learned Additional Sessions Judge at Bhavnagar was also holding the sittings of the Court on deputation for some time in a month at Mahuva. The learned Sessions Judge assigned the case to the then learned Additional Sessions Judge, Bhavnagar camping at Mahuva, who hearing both the parties framed the charge (Exh. 8) to which the appellants and 4 others pleaded not guilty. The prosecution then adduced necessary evidence. Considering the evidence on record the learned Judge below found that the prosecution had succeeded in establishing the charge against the appellants and not against 4 others, namely, Gobar Parmar, Chittar Nana, Goda Vaja and Bachu Vaja. He, therefore, acquitted those 4 others, but convicted and sentenced the appellants as aforesaid. The convict-appellants have filed the appeals, and so we will confine to the case and evidence against the appellants.
3. On behalf of the appellants their learned Advocates assailed the judgment and order of the lower Court submitting that the learned Judge below did not appreciate the evidence consistent with the law and fell into error. According to them evidence of Vaghabhai Bhikhabhai (Exh. 21), Popatbhai Bijalbhai (Exh. 43), Sura Bav (Exh. 50) and Vagjibhai Balabhai (Exh. 54) was material and that evidence ought not to have to been accepted by the learned Judge as the same was inspiring no confidence and was not trustworthy. We find no substance in the contention. We have scanned the evidence of these four witnesses and no doubt is left in our mind about the establishment of charge against the present appellants beyond every reasonable doubt subject to a little modification indicated hereinbelow. All the four who have seen the incident have in details stated the manner in which the incident happened. Their say inspires confidence. Their testimony is not at all shaken in the cross-examination. We find their evidence credible, cogent, trustworthy and free from all doubts. Their evidence suffers from no inherent improbabilities. Further, they are also corroborated by the evidence of doctors. Dr. Gordhanbhai Tarpara (Exh. 19) and Dr. Jesral Ramdin (Exh. 34) have categorically supported the case of the prosecution by opining after carrying out the post mortem and examining Sura Bav. Dr. Gordhanbhai carried out the post mortem of the dead body of Muljibhai Bhikhabhai, while Dr. Jesral performed the post mortem of the dead body of Mepa Sagram, and gave treatment to Sura Bav. From the evidence of the doctors it is clear that Sura Bav was seriously injured and the injuries noted by the doctor were possible by the weapons the appellants were possessing. Both the doctors have also opined that Muljibhai Bhikhabhai and Mepa Sagram died because of the injuries they sustained on the vital parts. Their evidence clearly establishes that deaths of both the persons were homicidal, while the evidence of above stated four witnesses in clear term shows that the appellants were the assailants and they caused the injuries noted by the doctor, and thus supports the prosecution's case in toto. As the evidence is convincing, cogent and sufficiently reliable, the irresistible conclusion that can be drawn is that none else but the appellants attacked and caused harm to Sura Bav, Mulji Bhikha and Mepa Sagram, as a result Mulji Bhikha and Mepa Sagram lost their lives. The learned Judge was, therefore, right in holding against the present appellants and convicting and sentecing them as well. But for the reasons stated hereinbelow the order qua Nanduben is required to be modified.
4. It was also contended on behalf of the appellants that all the witnesses referred to hereinabove were the interested witnesses. Their evidence would, therefore, be prejudical or partisan. The same might be viewed with suspicion. It would be hence unsafe to place reliance. No doubt, Popat Bijal and Vaghaji Bala must have become close friends and might have homely terms with Sura Bav and the deceased because since lond they were, in the company of each other, grazing cattle, while Vaghabhai Bhikhabhai is the brother of deceased Mulji Bhikha, but we cannot agree with the contention and discard their evidence. A mere contention that the particular witness is interested, cannot be a ground to reject the testimony of the witness. It is not the law that the testimony of the interested witnesses must be discarded in toto assuming that the same would invariably be incredible or unbelievable. The duty of the Court in that case is to weigh the evidence with care, close scrutiny and caution, and after doing so, if it is found cogent, convincing and free from doubt as well as trustworthy, the same can be accepted and necessary conclusion can be drawn. We have carefully perused the evidence of all the four witnesses and we find no reason to keep aside that evidence. Till the date of the incident neither of the witnesses had any axe to grind against the accused. They have deposed before the Court without any bias or ill-will. Their say. also not shaken in the cross-examination, inspires confidence, and when their evidence suffers from no infirmity, and is credible, their testimony cannot be thrown overboard simply on the ground that they are related and interested.
5. Vaghabhai Bhikhabhai (Exh. 21) cannot be termed a chance witness. One cannot overlook the family management or the necessitating factors governing the situation. Whoever is free and able to render services would go to deliver the tiffin. At times a man has to deviate from routine and prefer the available alternative so as to get the work done. Vaghabhai Bhikhabhai might be ordinarily dealing with collection of milk and its allied matters, but that cannot make him a chance witness. It should hardly be stated that in the absence of, or inability of one member of the family, another member would attend his work. On that day, the deceased Mulji Bhikha while leaving for grazing land had asked him to bring tiffin for him. It can, therefore, be said that the member attending tiffin work was not available and so Vaghabhai Bhikhabhai had to attend the same. Further, other eye witnesses and injured have supported his presence. In view of the matter, Vaghabhai Bhikhabhai cannot be termed the chance witness. To do so would amount to taking an unrealistic view.
6. Sura Bav the injured has stated in his evidence that Nanduben the appellant in Criminal Appeal No. 854 fo 1991 was armed with a stick and he was also beaten by the stick. He has, however, admitted that he did not give the name of Nanduben when police recorded his statement. Pointing out such omission amounting to contradiction, Mr. Trivedi, the learned Advocate representing Nanduben vehemently submitted that the said contradiction being material and damaging the case of the prosecution was sufficient to hold that suitable improvements were made so as to rope in Nanduben. His evidence might be viewed with suspicion and the case of the prosecution might well be held to be the fiction. Against such submission on behalf of the State, a decision of the Supreme Court in the case of Matadin and Ors. v. State of U. P., : 1981CriLJ740 was brought to our notice so as to hold that there would be no justification to stamp Sura Bav a liar as the omission could not be said to be fatal. The following portion of that decision was emphasized much:
The statements given by the witnesses before the Police are meant to be brief statement and could not take the place of evidence in the Court. Where the omissions are vital, they merit consideration, but mere small omission will not justify a finding by a Court that the witnesses concerned are self-contained liars.
7. No doubt, beyond every reasonable doubt the prosecution has to establish the charge, but the law does not insist the prosecution to establish the same with arithmatical accuracy as it is not always possible because from every witness photographic memory or description owing to human limitations and varying capacities and possibilities to see or hear cannot be expected. To put in different words, the computerised approach can hardly have a dominance while appreciating the evidence. It is hence enough if a particular fact missed by one or a victim is narrated by another having personal knowledge, provided, of course, his evidence on the point in question is trustworthy. In that case, the contradictions, although vital would come to be effaced or would be rendered sapless and would not be fatal to the prosecution, i.e., it cannot then be said that prosecution put its head in a noose.
8. No doubt, Sura Bav has not referred Nanduben in his police statement but that omission is not fatal. Popat Bijal (Exh. 43) has stated catgeorically that Nanduben was having a stick and all started to beat. Vaghjibhai Balabhai (Exh. 54) has also likewise stated making it further clear that stick blows were given to both the deceased and Sura Bav the injured. It may be stated that both the witnesses were grazing their cattle along with Sura Bav, and so they were present right from inception of the incident. Their such statement are not shaken in the cross-examination. Vagha Bhikha (Exh. 21) after being informed rushed to the place of incident and remaining at a distance could see that Nanduben and other assailants were beating. Nanduben was having a stick with her and all were beating the deceased and the injured. Thus, Vagha Bhikha who reached the place of incident a little late also could see Nanduben with stick and playing some role for the purpose of causing injury. Dr. J.C. Tarpara (Exh. 19) while performing post mortem of the dead body of Mulji Bhikha found one injury, namely, C.L.W. which can be caused by a hard and blunt substance, namely, stick. He has also opined when asked that the injury No. 8 he noted was possible by a stick. It may be stated at this stage that the police during the course of the investigation drew the panchnama (Exh. 39) while searching the house of Nanduben. At that time Nanduben produced the stick which was found stained with blood-marks. The evidence of these witnesses and panchnama (Exh. 39) is for the reasons stated hereinabove trustworthy. Thus, those others present at the time of incident and panchnama support the case of the prosecution that Nanduben was present with the stick and did play a little role. When her presence and participation is brought to light from others' evidence, which in no point can be rejected, the omission pointed out loses the value. It can be said that inadvertently he must have missed to name Nanduben before police. The contention, therefore, gains no ground to stand upon.
9. Faced with such situation, Mr. Trivedi drew our attention to the statement of Nanduben recorded under Section 313 of the Criminal Procedure Code wherein question of recovery of stick with blood-stains was not specifically put to Nanduben and thereby her explanation was not sought. A general question as to what she had to say about the panchnama Exh. 39 would not be sufficient. According to him, therefore, it would not be just and proper to rely upon that circumstance appearing on record. He also drew our attention to a decision in the case of Bansropan Singh v. State of Bihar : 1983CriLJ225 wherein on page 170 it is made clear in what way the question should be framed and put to the accused for seeking explanation.
10. About the questions to be put to the accused while recording statement under Section 313 of the Criminal Procedure Code, 1973, we will be dealing in details. Section 313 of the Code of Criminal Procedure, 1973. is based on the principle involved in the maxim audi alteram partem, namely, that no one should be condemned unheard. The accused should be heard not merely on what is prima facie against him, but on other circumstance appearing in evidence against him. The object of the provision is also for the furtherance of justice and to enable the Court to decide the question of the guilt. As held in the case of S. Harnam Singh v. State (Delhi Admn.) : 1976CriLJ913 , the material circumstances appearing against the accused are required to be clearly and distinctly put, and if not put to him is a serious irregularity prejudicial to the accused. It is again made clear by the Apex Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra 1984 Cri. LR 296 that there is a catena of authorities of this Court uniformly taking the view that unless the circumstance appearing against an accused is put to him in his examination under Section 342 of Section 313 of the Criminal Procedure Code, the same cannot be used against him. The circumstances which were not put to the appellant in his examination under Section 313 of the Criminal Procedure Code have to be completely excluded from consideration. However, it may be stated that conviction cannot be set aside unless failure of justice has been occasioned. This is what has been held by the High Court of Rangoon in the case of U Ba Thein and Anr. v. Emperor AIR 1930 Rangoon 351. If the accused has well understood all the circumstances against him and has made them squarely in the cross-examination and there is no circumstance which escaped the attention of the accused, the failure of putting the same to accused with specific deatils under Section 313 would not entail any irregularity susceptible of vitiating the conviction especially when no failure of justice thereby has been occasioned. A perusal of Section 313 also reveals, that if the question in detail is not asked it should be shown that such examination has materially prejudiced the accused because want of adequate examination does not vitiate the trial. When Advocate is there to represent the accused, inadequate examination cannot be made a ground for setting aside conviction. In short, under Section 313 of the Criminal Procedure Code, it is the duty of the Court to put up necessary questions to the accused on material circumstances appearing against him and if that is not done, it would be a serious irregularity and that circumstance has to be completely excluded from consideration, the Court has then to consider other circumstances and material on record and determine the issue. If the examination under Section 313 is not adequate, but there is no point causing puzzle and the accused has well understood the circumstance and has also dealt with the same while cross-examining the witnesses with the assistance of his Advocate, inadequate examination would never be fatal to the prosecution.
11. The statement of Nanduben is recorded at Exh. 9. About the stick she was having at the time of the incident, necessary questions with specific details were asked to which she has already replied and about the panchnama, Exhs. 39 and 41, a general question is asked as to what she had to say in that regard to which she has replied, as not true. Of course, the learned Judge below has not asked a question with specific details that a stick with blood marks was found from her house, but simply in general terms referred the panchnama Exh. 39 and sought the explanation if any, and therefore, the learned Advocate representing Nanduben has taken a chance to submit as stated hereinabove, but in view of the law which we have made clear hereinabove on Section 313 of Cr. PC., the examination would not vitiate the trial, or that circumstance cannot be kept out of consideration. As and when the panchnama was referred to in the evidence, the learned Advocate representing Nanduben has in the cross-examination dealt with the same A copy of the panchnama was given to Nanduben soon after the charge-sheet was filed before the lower Court. She had, therefore, the opportunity to study the same and also instruct the Advocate on that point, and thereafter her Advocate has also dealt with that point as and when occasion during the course of hearing arose. It is pertinent to note that from the contents of the panchnama (Exh. 39) there is no other possibility, but to discern about the recovery of stick alone which Nanduben gave to police as it is the only subject-matter of the panchnama. There was, therefore, no cause to feel puzzled as to which point was referred to putting the general question which can be termed inadequate. She, therefore, knew what for the panchnama was, and what was the incriminating circumstance against her, i.e., she could know well that the question put was about the recovery of stick with some marks. When thus the case takes the shape of inadequate examination and not wholly of a non-examination, it will not vitiate the trial, or deter us from placing any reliance on that circumstance because it cannot be said that prejudice has been caused to Nanduben. Had there been no question at all, the same must have resulted in grave prejudice, but here that is not the case. A question in general terms about the panchnama drawn in connection with the recovery of the stick is put, may be inadequately, and therefore, there is no grave prejudice can be said to have been caused susceptible of vitiating the conviction. The contention, therefore, gains no ground to stand upon. We can very well consider that circumstance in order to appreciate the abovesaid contention advanced.
12. Now the question that arises for consideration is for which of the offences Nanduben can be held guilty. She has been asked no question whatsoever qua unlawful assembly. As no question whatsoever and in whatever form is put to Nanduben, about her joinder of unlawful assembly knowing well about the common object while recording the statement under Section 313 of the Criminal Procedure Code, and thereby opportunity to explain is not given to her, the omission would result in grave prejudice and would certainly have a vitiating effect on her conviction under Sections 147, 148 and Section 302 read with Section 149, I.P. Code. Her conviction, therefore, cannot be maintained under Sections 147, 148 and 302 read with Section 149. Under the circumstances, her individual role has to be ascertained. From the abovestated evidence, it can well be said that she gave stick blows to deceased Muljibhai Bhikhabhai and caused C.L.W. The doctor has opined that Muljibhai Bhikhabhai died because of the other fatal injuries he found and not by C.L.W. although the same was found on the middle of the parietal region. In this case, therefore, Nanduben can be said to have voluntarily caused hurt by a stick blow for which she can be said to have committed the offence punishable under Section 323, Indian Penal Code and not under any other Section alleged by the prosecution. She should, therefore, be convicted under that Section altering the conviction infliced by the lower Court.
13. However, the learned Advocates representing the appellants made an attempt to assail the evidence of abovereferred four witnesses on one more ground. According to them the Chemical Analyst's report (Exh. 32) or the expert opinion is always the backbone of the prosecution case. If the same is not produced or is found wobbling or vacillating, or stating the fact which can be termed impossible proposition in law, it would certainly be fatal to the prosecution The direct evidence will then lose its vigour and would be rendered tranced, vacuous and unproductive. In the case on hand the C.A.'s report is produced without the report of the Serologist which the laboratory was to send later on. The Court received the same later on but was not tendered in evidence. The report is, therefore, incomplete and therefore, the same is in fact no evidence on record. The direct evidence is, therefore, of no help to the prosecution.
14. True the Serologist report (as submitted inconclusive) is not produced and so it is not possible to determine whether the red marks found on muddamal articles were in fact the marks of human blood, and if so what was the group thereof? The recovery of weapons and other muddamal and marks thereon cannot, therefore, help the Court to decide the guilt or otherwise of the accused. In view of the matter, what is the value of the C.A.'s report and what is the effect of the C.A.'s report without Serologist's report being on record is the crucial question that arises for consideration. Whenever value of the expert report or opinion is to be assessed, one must look at Section 45 of the Evidence Act being the relevant provision. Before we proceed let us mention that the law permits the Court to convict the accused or base its conclusion only on the evidence of a solitary witness provided of course the evidence of that witness is cogent, trustworthy, convincing and leaves no room to doubt or scope for other possibility. The evidence of the expert or his report/ opinion takes the shape of being the opinion evidence and not the decisive factor, and so it has a corroborative value, with the result it can help the Court in assessing the direct evidence and drawing unerring conclusions. But before acting upon such opinion/report being a piece of evidence, it is usual to see whether it is corroborated by direct or substantial evidence or other pieces of evidence as expertise is not conclusive and not binding on Court. It, therefore, cannot outweigh and prevail over the direct testimony or take place of direct and substative evidence which is certainly appealing, credible, cogent, free from doubt or other infirmities. The expert's opinion or report can be relied upon for corroboration if it appears to be trustworthy, honest, impartial, conclusive, full and complete or omnipotent, and not perfunctory in nature, and helps the Court in reaching a true and positive conclusion, or if need arises provides technical assistance to the Court in appreciating direct evidence. If there is a reason to believe about the possibility other way round or leaves the Court in lurch, the same should be kept out of consideration; the Court should in that case consider direct and other evidence on record so as to find out the truth and determine the issue in question. If in that case the direct evidence is found credible, cogent, satisfactory, appealing leaving no room to doubt and inspiring confidence without any inherent improbabilities, the same can be relied upon and the Court can draw the conclusion which is logically permissible therefrom inspite of the fact that the expert report/opinion and/or evidence is wanting or is required to be kept aside, for the absence of expert evidence/report cannot in all cases damage prosecution's case or deter the Court from determining/adjudicating the case on the basis of sufficiently reliable direct evidence available on record, establishing the charge beyond reasonable doubt. In short, it gains importance only when after perusal of direct and substantive evidence on record the Court finds compelling reason necessitating looking for corroboration for being doubly sure, i.e., as sure as eggs is eggs, but of course, it is as stated above full and complete and honest etc. This High Court has also taken likewise view in the case of Amirbibi and Ors. v. Special Land Acquisition Officer, Ahmedabad : AIR1981Guj219 : 1981 GLR 590 observing:
The value of the experts' evidence is that it assist the Court in reaching a particular conclusion where technical assistance is necessary However, it cannot be laid down as a rule of law that where experts' assistance is not available and where a reasonable guess can be made from the evidence on record the Court would be precluded from doing so only because the experts' evidence is not led in a particular case.
15. In view of such position of law the incomplete C.A. report, which does not with certainty leads the Court to a definite conclusion, is in fact no evidence at all or carries no value and so it is required to be kept out of consideration. Consequently the direct evidence and other materials on record are to be appreciated. For the reasons stated hereinabove, the evidence of the abovereferred four eye witnesses including the injured one inspires confidence, being credible, cogent, free from doubt, suffering from no inherent improbability, i.e., sufficiently reliable. The same in clear terms fully corroborates the case of the prosecution without missing a link. When accordingly the direct evidence appealing to the conscious of the Court and leading the Court to draw the irresistible conclusion against the appellants is there on record, incomplete C.A. report or absence of C.A. report is not fatal to the case of the prosecution as canvassed by the learned Advocates representing the appellants. In our view, the learned Judge below was perfectly right in placing the reliance on the direct evidence and reaching a conclusion against the appellants.
16. In this case, a hoe and a sickle were found at the spot while drawing the panchnama (Exh. 24) of the sence of offence. The hoe was sent to Chemical Analyst; but the sickle was not sent as there was no mark. When on the sickle no mark whatsoever was there, it was not necessary to send the same to Chemical Analyst for opinion. However, it was argued on behalf of the appellants that omission of the police to send the muddamal to Chemical Analyst for analysis and report would certainly tarnish the direct evidence which would be for the Court alike a dead wood on record. We are unable to agree with the contention. As no incriminating mark was there, there was no necessity to send to Chemical Analyst. But if there is a mark and muddamal is not sent to Chemical Analyst, in our view, it will be the grave irregularity and the same has to be deprecated. Such omission or irregularity of the investigating agency would neither cast doubt on the prosecution case, nor trustworthy and reliable evidence can be set aside to record the finding on that count. For such view, we find support in the case of State of Rajasthan v. Kishore : 1996CriLJ2003 . The direct evidence being satisfactorily reliable and requiring no corroboration of expert's opinion, omission of police to send sickle to Chemical Analyst is not fatal to the prosecution.
17. Facing with such situation, Mr. Uppal, the learned Advocate representing the appellants in Criminal Appeal No. 8 of 1992 also contended that the appellants had no way out but to resort to the counter-attack in order to save them from being seriously injured. Whatever they did was, therefore, in the exercise of their private defence. The appellants were, therefore, entitled to be acquitted Mr. Mehta, the learned Addl. Public Prosecutor against such submission argued that when neither the plea about self-defence was taken nor there was any evidence on record, it would be unjust on our part to countenance the same.
18. The law provides certain exceptions exonerating the wrong-doer. One of such exceptions is a private defence. Vide Sections 96 to 106. Indian Penal Code, necessary provisions for the exercise of private defence arc made. What can be deduced from these provisions is that the law has conferred that right on the person facing imminent danger to his person or property, or has a reason to believe because of the act of the opposite party about the apprehension of his death or grievous hurt. The provision is made because the person facing the imminent danger to his person or property is not expected to be a coward, and yield or succumb to the attack or threat or force, and suffer injury to his person or damage to the property, or run away from the spot. He has a right to defend exercising to the extent necessary required force by a counter-attack to ward off the danger of being attacked or put the threat or danger to rout. It is, therefore, open to the accused to set up a plea of self-defence. If he takes up the plea, burden to prove the same in view of Section 105 of the Indian Evidence Act, 1872 is on him, but only after prosecution discharges its initial burden establishing his complicity. But onus which rests on him is not as strict and heavy as the standard of proof which lies on the prosecution to establish the charge beyond reasonable doubt. It is enough if he establishes the facts which stand the test of preponderance of probabilities making his plea acceptable. It is, however, not necessary that the case of self-defence should specifically be pleaded and the accused should adduce the evidence to establish the same. He can rely on and derive advantage from the facts and materials brought out on record, because if the task of proving the exception has already been performed by the prosecution for the accused, there is no necessity for the accused to do it all over again. In that case, it is open to the Court if on a proper appraisal of the evidence it comes to the conclusion that the injury caused by accused was inflicted at a time he was having reasonable apprehension of grievous injury being caused to him by the deceased to give him the benefit of doubt. In view of such law, it is open to the appellants to advance his case of self-defence if that is emerging from the evidence on record. We may also mention the salient feature of private defence made clear by the Apex Court in the case of Yogendra Morarji v. State of Gujarat : 1980CriLJ459 , as under:
Firstly, there is no right of private defence against an act which is not itself an offence under the Code; Secondly, the right commences as soon as - and not before - a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is coterminous with the duration of such apprehension (Sec. 102). That is to say, right avails only against a danger imminent, present and real; Thirdly, it is a defensive and not a punitive or retributive right. Consequently, in no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of the defence. (Sec. 99). In other words, the injury which is inflicted by the person exercising the right should be commensurate with the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith, to weigh 'with golden scales' what maximum amount of force is necessary to keep within the right. Every reasonable allowance should be made for the bona fide defender 'if he with the instinct of self-preservation strong upon him, pursues his defence a little further than may be strictly necessary in the circumstances to avert the attack.' It would be wholly unrealistic to expect of a person under assault, to modulate his defence step by step according to the attack; Fourthly, the right extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of Section 100. The combined effect of the first two clauses is that taking the life of the assailant would be justified on the plea of private defence if the assault causes reasonable apprehension of death or grievous hurt to the person exercising the right. In other words, a person who is in imminent and reasonable danger of losing his life or limb may, in the exercise of right of self-defence, inflict any harm, even extending to death, on his assailant either when the assault is attempted or directly threatened. This principle is also subject to the preceding rule that the harm or death inflicted to avert the danger is not substantially disproportionate to and incommensurate with the quality and character of the perilous act or threat intended to be repelled; Fifthly, there must be no safe or reasonable mode of escape by retreat, for the person confronted with an impending peril to life or of grave bodily harm, except by inflicting death on the assailant; Sixthly, the right being, in essence, a defensive right, does not accrue and avail where there is 'time to have recourse to the protection of the public authorities.
The Supreme Court in the of Purcm Singh and Ors. v. State of Punjab : AIR1975SC1674 pointed out the limitations on the exercise of private defence and they are:
The right of private defence of person or property is to be exercised under the following limitations:
(i) that if there is sufficient time for recourse to the public authorities the right is not available;
(ii) that more harm than necessary should not be caused;
(iii) that there must be a reasonable apprehension of death or of grievous hurt to the person or damage to the property concerned.
The decisions of the Apex Court make it abundantly clear that unless there is a reasonable apprehension of death or grievous hurt to the person or damage to the property, right of self-defence cannot be exercised.
18.1 As per the above requirements, we do not find the evidence on record. The vidence of above mentioned four witnesses and especially of Sura Bav, Popat Bijal and Vagji Bala makes it abundantly clear that after the goat entered into the vada of Hira Gobar the appellant No. 1 (in Criminal Appeal No. 8 of 1992) was hurling the stones so as to hit the goat and drive it out. Sura Bav found that his goat was being unnecessarily cruelled. He, therefore, scolded Hira Gobar not to hit his goat as he thought that Hira Gobar would go ferine. He, thereafter, brought out his goat, and overlooking the incident went to the grazing land. Few minutes thereafter, Hira Gobar went to the grazing land along with other appellants and four others, who are acquitted, with deadly weapons and reaching there initially assaulted Sura Bav and during attack showering the blows with the weapons they were having started to cause injuries to Sura Bav. In order to save Sura Bav, Muljibhai Bhikhabhai and Mepa Sagram who were having no weapon with them intervened. Hence, they were also assaulted and beaten severely. With the result they sustained fatal injuries to which they succumbed at the spot. It is evident from these facts that there was in fact no assault or attack or likelihood of assault or attact on the appellants from the injured party and therefore, there was no reasonable apprehension of death or grievous hurt. They on the contrary, after Sura Bav took away his goat from the vada and went to the grazing land, assembled, may be at the instance of Hira Gobar. took the deadly weapons (knife, stick, spear, etc.) with them and going to the grazing land assaulted, and during the attack caused grievous hurt, as a result two of them died, but Sura Bav luckily survived. When that is the case, a plea of self-defence is not available to the appellants. At this stage, it is necessary to refer to a decision of the Supreme Court rendered in the case of Biran Singh and Ors. v. Stale of Bihar : 1975CriLJ44 wherein it is held that if the accused runs to the house, fetches a sword and assaults the deceased on his head with that sword, can by no means be said to be a matter of chance; such act bears a stamp of design. Here, when there was no reasonable apprehension at all about the death or hurt because there was no assault, and when Sura Bav was having a cane or ferule and others were armed with nothing there was no possibility of assault from Sura Bav, however, Hira Gobar goes back to his homestead in his vada, and makes his cronies assembled. All then rushed to the grazing land with different weapons and by assault caused the injuries. Their such act amounts to a design to cause hurt and death. In this case, therefore, the plea of self-defence is not available as the facts revealed that accused in pursuance to their design attacked and not by way of counter-attack so as to save their lives. Further, the evidence shows that there was no free fight; and none of the appellants armed with deadly weapons suffered any injury. Can it in the circumstances be said that the right of self-defence did arise? The answer will obviously be in the negative. For our such view, a reference of the case of Madho Ram and Ors. v. State of Uttar Pradesh 1981 SCC (Cri.) 374 may be made. The plea thus raised does not emerge from the facts on record, and is not available to the appellants. On no other ground, the judgment and order of the lower Court are assailed before us.
19. It appears from the record of the lower Court that Nanduben was arrested an 6th July 1988 and came to be released on bail on 30th July 1988. After she was convicted by the lower Court, she was again arrested on 23rd Otctober 1991 and then the High Court on 10th December, 1991 released her on bail. Thus, for a total period of 74 days she remained in jail as undertrial as well as convict prisoner. Considering such period of jail and the sentence we are inflicting, it would not be necessary for Nanduben to surrender for serving out the sentence because the period of sentence we are inflicting is shorter than the above stated period during which she remained in jail.
20. For the aforesaid reasons, the Criminal Appeal No. 8 of 1992 being devoid of merits is hereby rejected and the conviction and sentence inflicted on the appellants by the lower Court are hereby maintained. The Criminal Appeal No. 854 of 1991 is hereby partly allowed and the conviction and sentence imposed by the lower Court on the appellant Nanudben Gobarbhai are set aside and she is acquitted of the offences with which she is charged, but she is convicted of the offence punishable under Section 323, I.P. Code and sentenced to simple imprisonment for one month and a fine of Rs. 250/-, in default simple imprisonment for 7 days more. By the time when the sentence we are inflicting can be said to have been served out as Nanduben, now on bail, was in jail for 74 days as stated hereinabove, there is no need to order her to surrender for serving out the sentence. Muddamal shall be disposed of as per the lower Court's order The bail-bond executed by the appellant, Nanduben shall stand cancelled.