Full Judgment
R.S. Verma, J.
1. Seven persons, namely, Limba, Kashna, Harji, Sava Veera, Bhera and Nathu were put up for trial before learned Addl. Sessions Judge, Udaipur, to face trial of offence under Sections 142 & 302 read with 149, IPC. The gist of the charges against the accused persons was that on 8-8-1978, at about 11-12 noon, they formed an unlawful assembly, the common object where of was to commit murder of one Kishore Singh and in furtherance of the said common object, each one of them made deadly assault on the said Kishore Singh (sic) in injuries to him. which caused his death and thus, they committed riot and murder.
2. Besides the other evidence, the prosecution examined PW 1 Hadmat Singh, PW 3 Vaja, PW 4 Gamu and PW 5 Jawan Singh as the alleged eye witnesses of the occurrence. Learned Additional Sessions Judge after critical examination of the aforesaid evidence, arrived at a definite conclusion that Hadmat Singh, Gamu and Jawan Singh did not witness the actual assault on the deceased. As regards Vaja, he was of the view that be was a partly reliable witness and had seen appellant Veera opening assault on the deceased with an axe. Participation of other accused persons in the assault was held to be prove. The learned trial Judge found that testimony of Vaja regarding assault on Kishore Singh by the appellant by an axe was corroborated by medical evidence. He further held that Veera had committed the said assault to protect his possession over the agricultural land standing crop thereupon, which was in his possession. He also found that the assault had been made in exercise of right of private defence of person as well but he found that in doing so, the appellant bad exceed his right of private defence In these premises, he acquitted all other accused persons of charge under Sections 148 & 302 read with 149, IPC. He acquitted Veera, the present of charge under Section 148, IPC as also for charge under Section 302 read with 149, IPC but convicted him of an offence under Section 304, Part-I, IPC and sentenced him to undergo rigorous imprisonment for six years and a fine of Rs. 1000/- and in default of payment of fine, to undergo simple imprisonment for six months. Aggrieved, Veera has come of this Court in appeal.
3. Learned counsel for the appellant has seriously challenged the conviction of the appellant of offence under Section 304, Part-I, IPC and he submits that when the prosecution had failed to prove its case against other accused persons, learned Additional Sessions Judge fell in serious error in accepting the testimony of Vaja against the appellant alone. He contends that the case of the appellant was in no way different from the case of the other accused persons and particularly from the case of Harji, who was also alleged to have opened an assault on Kishore Singh with an axe/'kudi' (a deadly sharp edged weapon) and hence, prosecution case should have been thrown out in its entirety. His next contention is that the learned trial Judge did not correctly appreciate the statement of the appellant and unduly, dissected the same into parts. He picked up such parts of the statement of the appellant, which would fit in the prosecution story and he discarded the other material parts of the statement for no cogent reason. It is submitted that the learned trial Judge ought to have read the entire statement of the appellant as a whole and he done so, it would have been clear to him that the appellant had succeeded in establishing the right of private defence of property and person Lastly, he contended that once that learned trial Judge had acquitted the appellant of charge under Section 302 read with 149, IPC, be could not have convicted the appellant for a charge under Section 302, IPC simpliciter when no such charge had been framed at all against the appellant. He, therefore, vehemently urged that the appellant's appeal may be accepted and the appellant should be acquitted of the charge under Section 304, Part-I, IPC.
4 Learned Public Prosecutor has opposed the appeal and has vehemently supported the judgment of the learned Additional Sessions Judge.
5. I may first take up the last contention. A large number of rulings were cited before me in support of the proposition that when the appellant had been acquitted of charge under Section 302 read with 149, IPC, he could not have been convicted of charge under Section 304, Part-I, simpliciter, particularly when there was no charge for an offence under Section 302, IPC simpliciter against the appellant. I need not encumber the judgment by citing those rulings because I find that so far as this Court is concerned, the point as concluded by a Full Bench decision of this Court reported in Moti Lal v. State of Rajasthan 1984 WLN 600. In this case, all those rulings, which were cited before me, have been considered and the Court observed as follows:
In view of the judgment by the four Judges directly covering the point of reference before us, and which was given by them in order to resolve the controversy between the decisions of Nanak Chand & Suraj Pal's case (supra), we have got no hesitation in holding that the absence of specific charge of substantive offence of Section 326. IPC as is the case before us convicting the accused under Section 326, IPC read with Section 149, IPC, is not an illegality or irregularity which is fatal to the conviction per se and the conviction can be sustained. Such a conviction can only be set aside if it is count that the accused has been prejudiced in his defence and, if that finding is given the court can further decide that the re-trial should be ordered or the case should be concluded on account of other circumstances intervening.
In the present case, it has to be seen if any prejudice had been caused to the appellant by not framing a charge Under Section 302 IPC simpliciter. A charge Under Section 302/149 IPC implied that the appellant was only vicariously liable for the acts of his other companions. He was never charged with having caused the entire assault on the deceased. Learned trial Judge still assumed that the entire assault bad been made on the deceased by the appellant alone. If that was to be so, the charge should have been suitably amended. This was not done. Hence, the appellant could not be expected to meet the charge that all the injuries on the person of the deceased had been caused by the appellant alone. Thus, I find that the appellant has been seriously prejudiced in his defence. How ever, I need not comment any further on this aspect of the matter, because I have taken the view that the appeal should even other wise succeed
6. This takes as to the consideration of the first contention, namely that the appellant ought to have been acquitted because the testimony of Vaja was not considered to be reliable against the other accused persons. It may readily be stated that principle of falsus in one, falsus in omnibus does not apply to courts in India It is lawful for the courts to accept the evidence of a witness qua a particular accused and to reject the same qua other accused provided the part to be accepted is trustworthy and is capable of being separated from the chaff of falsehood. Hence, I am of the view that if the learned Addl. Sessions Judge found the evidence of Vaja unreliable against other accused persons, then it cannot be said on this basis alone the evidence should have been discarded against the appellant as well.
7. Here, I would like to refer to the evidence of PW 3 Vaja in brief, Vaja stated in his examination-in-chief that on the fateful day, he was ploughing the field at Kanatalal along with deceased Kishore Singh. According to him, the accused persons including the appellant came to the field, upon which Kishore Singh started running away When Kishore Singh reached near the Pali of his own field, Harji Dangi gave a blow from a 'kudi' on the back of his head. At that very juncture, Veera gave an axe blow on the head of Kishore Singh and thereafter all other accused persons started belaboring Kishore Singh. Kishna and Limba threatened this witness of dire consequences, upon which he ran away from the place. He has further stated that his wife Goma had also come to the field with meals for this witness and when this witness started running away, she also ran away from the field. The witness states that after about two hours, he came to the field and at that time, saw that witnesses Laxman Singh, Jodh Singh, Jawan Singh and Hadmat Singh were sitting with the deceased. Deceased was then taken to Kurabad. He further stated that prior to the incident, accused Viriya had told him not to plough the field. At this, he had gone to Kishore Singh and told him that Viriya was not permitting him to plough the field. He stated that upon this, Kishore Singh had told him that he would accompany the witness to ensure ploughing. In cross-examination, the witness admitted that deceased Kishore Singh had told him:
py rsjs ljs lkFk pyrk gwa ns[krs gS dkSu ges gy pykus ls jksdrk g SA
According to him, Veera had come to the field and told this witness and Kishore Singh not to plough the field because the field belonged to him. In cross-examination, he was confronted by his police statement Ex D 1 in portion A to B in which he bad deposed that Harji was wielding an axe. He denied this statement and stuck to the version that Harji was carrying a 'kudi'. According to him two blows by 'kudi' had been given to the deceased. He further deposed that each one of the other accused persons had given at least five lathi blows to the deceased.
8. Here it may be stated that post-mortem examination of the deceased Kishore Singh was conducted on 9-3-78 by Dr. Dungar Singh Chaudhary. He found following injuries on the person of the deceased:
(1) Two incised wound over left side of forehead, Margins are clean cut and retralted 3 x 1 c.m. x bone deep and 5 x 2 c.m. x bone & meninges seen (Brain exposed) Blood around wound seen.
(2) Incised wound over right occipital region 3 x 0.5 c.m. (retralted) x muscle deep. Bleeding present, Margins are clean cut;
(3) Incised wound over left arm lower one third laterally 1 x 01 c.m. x skin deep with deformity of left arm. Fracture humerus lower one third. There is diffuse swelling of left arm around elbow;
(4) Tow incised wound over right leg medically middle one third of about 1 x 0.2 c.m. x skin deep each margins are clean cut. Distance between two wounds are about 4 c.m. approx.
It may be stated that he did not find blunt weapon injury on the person of the deceased. It was in light of this medical evidence that the learned trial Judge did not accept the testimony of Vaja so far as accused Limba, Kishna, Sawa, Bhera and Nathu were concerned, in as much as they were alleged to have assaulted the deceased by lathies. He discarded the testimony of Vaja against Harji on the ground that in his police statement, he had deposed that Harji was carrying an axe while at the trial, be stated that Harji was carrying a 'kudi'. He, how ever, found the story of assault by the present appellant established on the basis of the aforesaid corroboration from medical evidence.
9. Learned counsel for the appellant submits that in this case though Harji has been acquitted, the possibility cannot be ruled out that after Vaja had run away from the scene of occurrence, Harji might have dealt various blows to the deceased by 'kudi', which is also a sharp edged weapon and hence, all the injuries found on the deceased could not have been ascribed solely to the appellant Even according to Vaja, he saw the appellant giving only one blow from the axe to the deceased, while two blows had been given by Harji with a 'kudi'. In my opinion, there is a good deal of strength in this submission. Vaja categorically stated that assault on the deceased was opened by Harji as well as the appellant. Of course, in his police statement, he said Harji was armed with an axe while during the course of trial, he had stated that Herji was armed with a 'kudi', how ever, it could not make very material difference, and if his evidence was acceptable regarding assault by the present appellant, then it is difficult to exclude the possibility that Harji also might have caused various other injuries on the person of the deceased because to this extent, the statement of Vaja was also corroborated by medical evidence. Be that as it may, be testimony of Vaja at best proves that the appellant caused only one blow on the hand of the deceased by an axe. It is very difficult to ascribe other injuries on the persons of the deceased solely to the appellant. In my considered opinion, in the present case, that possibility that Harji might have caused various other injuries to the deceased, cannot be ruled out altogether.
10. If it is so, then the appellant could have been convicted only for his individual act proved against him. This is so because on the findings recorded by the learned trial Judge, the appellant has gone to the field in question to defend his possession. The learned Judge has held that initially the appellant was armed only with a stick while the deceased was armed with an axe and the appellant had opened assault on the deceased only in exercise of right of private defence of person and property. I have already extracted the testimony of Vaja and this testimony shows that Vaja saw only one blow being given by the appellant by an axe on the hand of the deceased. It is even difficult to ascertain from the prosecution evidence as to which particular injury on the head, had been caused by the appellant to the deceased.
11. Here, I may observed that the learned trial Judge has proceeded on the assumption that all the injuries on the who of the deceased had been caused to solely by the appellant. This was obviously not correct because the evidence of Vaja does not show beyond shadow of reasonable doubt that the appellant alone caused all the injuries found on the persons of the deceased. There is no other evidence worth the name to show that the appellant gave more than one blow to the deceased. It appears that the learned trial Judge assumed that all the injuries on the person of all deceased had been caused by the appellant. It appears that this assumption was in some way founded on the statement of the appellant, who owned the entire assault on the deceased by himself, In my opinion, when there was no prosecution evidence to show or suggest that all the injuries found on the person of the deceased had been caused by the appellant alone then the statement of the appellant could not have furnished the basis for such a statement is recorded only with a view to obtain explanation of the circumstances appearing against an accused in the prosecution evidence and no further. The statement cannot be used to fill up gaps in the prosecution evidence. Normally, the statement of the accused has to be road as a whole and not in parts, divorced from the context An explanation furnished by the accused can be accepted in part and rejected in part only when the portion sought to be rejected is found to false or untrue by cogent evidence or trustworthy circumstances appearing in evidence. Explanation given by the accused may not be rejected only on basis of surmises.
12. Now I may take up the statement of the appellant made before the learned trial Judge. He stated as follows:
;g [ksr gekjs dCts es g SA okds ds 10&15 fnu igys geus bl [ksr es eDdh dh Qly cksbZ Fkh okds ds 1 jkst igys ctk xokg bles gy pykus vk;k rks eSus mls Hkxk fn;k okds ds jkst Bkdqj fd'kksj flag o ctk nksusk gy ysdj vk;s vkSj Qly es gy pykdj u'V djuk 'kq: dj fn;k A eSus tkdj mUgs euk fd;k ctk rks ogka ls pyk fn;k Bkdqj dqYgkM+h ysdj esjs ij geykoj gqvk eSus dqYgk.kh Nhu yh bl ij Bkdqj us okil dqYgk.kh eq>ls Nhuus dh dksf'k'k dh D;ksfd eq>s viuh tku dk [krjk yx jgk Fkk rks eSus vius cpko es Bkdqj dks dqYgk.kh dh pksVs ekjh ?kVuk ds le; u rks nwljs eqyfteku ekStwn Fks vkSj u dksbZ xokg ekStwn FkkA tc rd Bkdqj [kM+k jgk vkSj dqYgk.kh Nhuus dh dksf'k'k dj jgk rc rd eS mls pksVs igqapkrk jgk& T;ks gh Bkdqj uhps fxjk eSus mls ekjuk cUn dj fn;k A
At cost of repetition, I would state that this statement of accused appellant could not have been dissected by the learned trial Judge in support of the conclusion that all the injuries on the person of the deceased had been caused by this appellant, particularly when the prosecution evidence had failed to prove that the appellant bad dealt more than one blow on the person of the deceased. Secondly, the appellant stated that the deceased was all through trying to snatch the axe from him and, therefore, be kept on inflicting injuries on the person of the deceased. Learned trial Judge rejected this part of the story on the ground that the deceased was 60 years of age while appellant was a much younger person and, therefore, the deceased could not have offered a reasonable threat to the accused after the axe bad been snatched from him. This reasoning does not take into consideration the statement of the accused that the deceased was all the while trying to snatch the axe back from the accused. In case, the deceased would have succeeded in doing so, there would have been an imminent threat to the life of the accused. The prosecution evidence does not establish at what stage this threat came to an end. It is to be remembered that an act of an accused committed in exercise of right of private defence of person and property cannot be weighed in golden scales. The reaction and response of an accused faced with imminent threat to life cannot be properly judged in the cosy setting of a court room. It is to be judged keeping in view the circumstances in which the accused had reacted. Learned trial Judge himself has accepted that the accused appellant did not caused any injury to the deceased while the deceased was running. This fact shows that the deceased might have been grappling with the accused with a view to snatch the axe back from him and during that scuffle, the accused appellant, might have caused some of the various injuries, if he did so cause, to the deceased. I say, 'if he did so cause', because I do not find any prosecution evidence to show that he gave more than one blow to the deceased. To my mind rejection of part statement of the accused is only based on surmises and conjectures.
13. In view of what I have stated above, I find that it is difficult to hold that the accused appellant had exceeded his right of private defence of person or property. I, therefore, in disagreement with the learned trial Judge hold, that in the facts and circumstances of the case, it cannot be predicated with any certainly that the accused appellant, in any way exceeded his right of private defence of person or property.
14. Viewed from the above angles, I find that the charge Under Section 304, Part-I, IPC has not been made out against the accused appellant beyond shadow of reasonable doubt and the accused appellant is entitled to get benefit of this doubt. In the facts and circumstances of the case, this appeal succeeds? The judgment of the learned Addl. Sessions Judge. Udaipur convicting the accused appellant for offence Under Section 304 Part I, IPC and sentencing him to rigorous imprisonment for six years and to pay a fine of Rs. 100/- and in default of payment of fine, to undergo simple imprisonment of six months, is set aside and the accused appellant is acquitted of the said charge. Fine, if paid, shall be refunded him. The accused is on bail and he need not surrender. His bail bonds are cancelled.