Judgment:
Sharma, J.
1. This criminal appeal by accused appellant Mohd. Nazim has been preferred against the judgment and order dated September 29, 2000 passed by the Special Judge (Communal Riotes Cases), Tonk by which he convicted the accused appellant for the offence under Section 304(1) I.P.C. and sentenced him to 10 years rigorous imprisonment with a fine of Rs. 500/-, in default of payment of fine, to further undergo imprisonment for one month.
2. Succinctly stated that contextual facts of the case are, that on 12.8.1998 PW-1 Ahmed Khan, complainant lodged a written report, Ex.P1 at Police Station Kotwali, Tonk alleging therein that while his grand son Kafil along with PW-5 Irfan and PW-14 Arif was on way to market, appellant Mohd. Nazim called all of them at his shop and asked Kafil (since deceased) as to where the goat has eaten his male organ, where the stitches were put and that why he was defaming him. There-upon, some altercation look place between accused Nazim and deceased Kafil. The accused picked up scissor and inflicted its blow on the right side of chest of Kafil Ahmed. Arif informed the complainant about the incident happened. The complainant and his son khalil Ahmed immediately rushed to the place of incident and took kafil Ahmed to the Hospital at Tonk and got him admitted. After a short-while, the doctors declared him dead.
3. PW.3 Dr. V.K. Nigam, Medical Jurist and Dr. S.P. Kothari, Medical officer conducted autopsy on the dead body and noticed:
'Stab wound : Horizontally placed, Both margins (upper & lower) ragged with obtuse anglesat both corners.
Direction of wound is inwards and medially.
Size of wound is 3/4' x 1/' ' x thoracic cavity deep.
Situated on the upper 1/3rd of right chest in the 3rd intercostal space, 1 & 1/2' rt. lateral to mid-line, lateral end of the wound is '' above and medial to rt nipple.'
4. In the opinion of the doctors the death occurred due to haemorrhagic schok caused by injury to aorta leading to excessive bleeding, shock and death.
5. The accused, after due investigation, was charge sheeted for offence under Section 302 IPC in the court of learned Chief Judicial Magistrate, Tonk, who, upon finding a prima facie cause exclusively triable by the Court of Sessions, committed the appellant to the Court of Sessions.
6. The case came to be tried by the Special Judge, Communal Riotes Cases, Tonk. The learned Special Judge, after hearing counsel for the accused and the Public Prosecutor, framed charge against the accused appellant under Section 302 IPC. The accused denied the charge and claimed trial.
7. The prosecution, in support of its case examined as many as 14 witnesses and exhibited various documents. Thereafter, accused was examined Under Section 313 Cr.P.C. The accused in his explanation has admitted to have inflicted scissor blow in exercise of the right of his private defence, at his shop. He further explained that he had made a complaint to Ahmed Khan (grand father of deceased), thereupon, Kafil came to his shop and started belabouring him by a stick (danda). Scissor was lying in the shop, which came in bis hand and that he defended himself by inflicting blow by scissor.
8. In his written statement under Section 233(2) Cr.P.C. the accused has stated that Kafil, Arif and Arsad came to his shop on 12.8.98 at 3-3.30 PM and Kafil aggresively asked him as to why he made his complaint to his grand father. He replied that since he used to tease him, therefore he complained. Thereupon, Kafil started beating him by a 'danda'. He ran inside the shop, Kafil chased him and caught his neck and by holding his neck, tried to take him out. He got suffocation and tried to get rid of his clutches, but the deceased had strongly caught him. In the mean- time, a scissor lying on a machine came into his hands and he struck that scissor on kafil. He further started that he is not aware as to where the scissor hit. He stated had the scissor been not in his hand, he had apprehended danger to his life as he was feeling suffocation.
9. At the conclusion of trial, the learned trial Judge found the appellant guilty of having committed offence Under Section 304 IPC and accordingly convicted him for offence Under Section 304 Part I IPC and sentenced him as indicated above. It is against this judgment of conviction and sentence that the appellant has preferred this criminal appeal.
10. I have heard learned Advocate appearing for the appellant and the learnedPublic Prosecutor and carefully gone through the judgment under appeal and alsoscanned the evidence and material on record.
11. In assailing the conviction of the appellant, learned counsel has contended with vehemence that no, offence whatsoever is made out against the appellant. Referring to the prosecution evidence, learned counsel submitted that it was deceased himself who came to the shop of the appellant, duly armed with a 'danda' with an intention to teach him a lesson as he was annoyed by the complaint having been made to his grand father by the appellant. Immediately on reaching the shop of appellant, the deceased started beating him by a 'danda' and caused number of injuries. According to the learned counsel, the deceased was aggressor and started beating the appellant at his shop and the appellant having felt endanger to his life, inflicted a scissor blow on the deceased. The scissor was lying on a machine and it incidently came in his hands. On this strength, learned Advocate argued that the appellant was suddenly confronted with immediate necessity of averting an impending danger and, therefore, whatever was done by the appellant was done in the exercise of right of private defence and as such the prosecution has failed to bring home guilt against the appellant. According to him, the finding of guilt arrived at the learned trial court is contrary to the evidence on record and hence the appellant deserves to be acquitted.
12. In support of his above arguments, learned counsel has placed reliance on Dau Dayal v. State of Rajasthan (1), Deo Narain, v. The State of U.P. (2), Nena Ram and Ors. v. State of Rajasthan (3), Ram Chandra v. State of Rajasthan (4), Kamruand Kallu v. State of Rajasthan (5), Gottipulla Venkatasiva Subbrayanam and Ors. v. State of A.P. and Anr. (6), Wassan Singh v. State of Punjab (7), and State ofRajasthan v. Nathu (8).
13. On the other hand, learned Public Prosecutor has supported the findings arrived at by the trial court and has contended that the judgment impugned in this appeal is based on proper appreciation of evidence and the conviction and sentence awarded to the appellant deserves to be maintained.
14. Before proceeding further, I consider it proper to deal with the case laws cited at the bar.
15. In Dau Dayal v. State of Rajasthan (supra), there was money dispute between the two. The place of incident was the market. The accused was first hit by a chain and then appellant gave blows with Gupti in order to save himself. In these circumstances, this court held that accused appellant exercised his right of private defence of the body.
16. In Deo Narain v. State of U.P. (supra), there was dispute with respect to the possession of certain plots of land in village Baruara. The appellant in that case was struck on his head with a lathi. The Apex Court held that when a blow is aimed at a vulnerable Part like the head even by a lathi, it may very well give rise to a reasonable apprehension that death or grevious hurt would result from an injury caused thereby, it cannot be laid down as a general rule that use of lathi as distinguished from the use of a spear must always be held to result only in milder injury. In such moments of excitement or disturbed mental equilibrium it is some what difficult to expect parties facing grave aggression to cooly weigh as if in golden scales, and calmly determine with a composed mind as to what precise kind and severity of blow would be legally sufficient for effectively meeting the unlawful aggression.
17. In Nona Ram v. State of Rajasthan (supra), Mangu deceased had gone to the house of Nena Ram to lodge a protest and the accused Nena Ram was first attacked by a Jeli by Mangu, resulting into front portion of his neck entangled in between the forks of Jeli. In these circumstances, it was held that appellant acted in the exercise of right of private defence and they did not exceeded the right of private defence.
18. In Ram Chandra v. State of Rajasthan (supra), the complainant party duly armed with lathis went to the house of accused persons and being aggrieved by the straying of the cattle causing damage to their crop, attacked with lathis causing injuries to 6 accused persons. Ram Chandra accused sustained two lacerated wounds. In these circumstances, it was held that accused party had a right to defend themselves and the mere fact that the accused received simple injuries and Gopal received grevious injury, is not sufficient to deprive the accused persons of their valuable and important right of self defence of person.
19. In Kamru and Kallu v. State of Rajasthan (supra), this Court observed that the circumstances indicated above probabilised the plea of self defence set up by the two appellants because Banna and his party clearly formed an unlawful assembly with the common object to forcibly enter the house of the appellants to find out the dead peacock and to beat them in case they resist their forcible entry and, in fact in prosecution of the said common object, caused multiple injuries to both the appellants, their mother and Mst. Batul wife of kamru and hence the appellants were justified in taking all necessary steps to defend themselves and in using force to repeal the attack made on them by Banna and his party.
20. In G.V.S. Subbranayam v. State of A.P. (supra), civil litigation was going on between the parties. There were number of accused persons and plea of alibi was also taken. However, their Lordships of the Supreme Court were satisfied that accused No. 10 was fully justified in using his gun in exercise of the right of private defence against the party of the prosecution witnesses who had come to the spot in support of the occupiers to use force in removing the bund and who actually did use it and mercilessly beat up the accused persons and that accused No. 10 did not exceed his right.
21. In Wassan Singh v. State of Punjab (supra), appellant received as many as 9 injuries, out of which first two were on head and injury No. 1 was an incised wound. Under these circumstances, it was held that if the appellant fired one shot from his gun in self defence, it could not be said that he exceeded that right of private defence.
22. Lastly in State of Rajasthan v. Nathu (supra), the appeal was preferred against acquittal of the accused. In this case the accused was first hit by a lathi on his head. The High Court held that the man placed in a grave and imminent danger to his life cannot be expected to wield the weapon with the same force or impact which has been wielded against him by the assailant and aggressor. Consequently, the judgment of acquittal was maintained.
23. So far as facts of the present case are concerned, it may be reiterated that deceased had gone to the shop of the appellant simply to make him understand with a piece of wood (danda) and caused as many as 9 injuries which were simple in nature and the accused in turn struck a scissor blow on the chest of deceased which proved fatal and he did not repeat the blow. Thus the facts in the cases referred to above are entirely different that those involved in the present case and hence the cases cited by the counsel for the appellant, in my considered view are of no help to the appellant.
24. I have given my anxious consideration to the rival submissions. At the very outset, it may be stated that it is well settled that right of private defence of body commences as soon as reasonable apprehension of danger to the body arises from an assault or threat to commit the offence, though the offence may not have been committed, and such right continues so long as such apprehension of danger to the body continues. Similarly it is also well settled that right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. In other words the right of private defence is purely preventive and not punitive or retributive. It is not a right to take revenge nor is a right of reprisal.
25. The first question that mereges for consideration is whether, in the facts and circumstances of the case and in the light of the evidence on record, the right of private defence was at all available to the appellant?
26. It is not is dispute that in the FIR, Ex.P1 the occurrence was alleged to have taken place in the shop of accused appellant. The author of the FIR is PW-1 Ahmed Khan, grand father of deceased. This prosecution witness has admitted in his cross examination that accused had lodged protest against his teasing by deceased Kafil. The prosecution has examined PW-5 Irfan and PW-6 Arshad as eye witnesses of the occurrence. PW-5 Irfan has admitted in his cross examination that deceased kafil used to tease the appellant that goat has eaten his male organ and there used to be exchange of abuses between them. The witness further admitted that on the day of occurrence, they were going to have tea and that kafit was angry. Kafil disclosed that Nazim had complained to his grand father. According to this witness, Kafil had a 'danda' in his hand and was talking that today he will see Nazim. On reaching the shop of Nazim, he entered into the shop and after some altercation on the said complaint, Kafil started beating Nazim by a 'danda'. When Nazim tried to run inside, the deceased caught his neck from back side and took him out. He also admitted that it is true that a scissor for cutting thread was lying on a machine, which came in the hand of the accused and he struck the same on kafil. There is categorical admission of this witness that Nazim with a view to defend himself had inflicted scissor blow on Kafil only once. This statement is well supportted by another eye witness PW-6 Arshad. Hence the plea of the appellant that the occurrence took place at his shop and the deceased hit him by a stick and he struck scissor which was lying on a machine, on the deceased, appears to be well founded and it can be concluded that right of private defence of body was available to the appellant.
27. Having established that right of private defence was available to the appellant, the question now remains to be seen is, whether the appellant exceeded the right of private defence or not
28. In considering a plea of self defence it is not the triviality of the injuries inflicted upon the accused that has to be taken into consideration, but the question which requires consideration is as to whether the attempt made on the accused is one which reasonably causes the apprehension of death or grevious hurt in the mind of the accused.
29. Section 96 IPC provides that nothing is an offence which is done in the exercise of right of private defence. Section 97 provides that subject to the restrictions contained in Section 99, every person has a right to defend. Section 100 enumerates the offences in which the right of private defence of body extends to the voluntary causing of death or of any other harm to the assailants if the assault which occasions the exercise of the right reasonable causes the apprehension that death or grevious hurt would otherwise be the consequence thereof. Section 101 IPC provides as to when such right extends to causing any harm other than death. It provides that 'if the offence be not of any of the descriptions enumerated in the last preceding section, the right of private defence of body does not extend to the voluntary causing of death to the assailant, but does not extend under the restrictions mentioned in Section 99 to the voluntary causing to the assailant of any harm other than death.'
30. Now to decide whether or not the accused has exceeded the right of private defence available to him, it would be profitable to have a glance at the evidence on record. Ex.P7 is the injury report of appellant Nazim, which mentions as many as 9 injuries on his person. Injuries 1 to 8 are bruises and injury 9 is swelling on left forehead. The doctor who examined the appellant has described all injuries as simple in nature. The appellant has taken a plea that deceased Kafil had caught his neck with force at his command that he felt suffocation. Meanwhile, he could be able to lay his hands on a scissor lying on a machine and having apprehended danger to his life, he struck scissor blow on the person of deceased.
31. A perusal of Ex.P.7 injury report of appellant shows that there was a bruise with abrasion in the size of 3' x 3/4' and 1' x 1/8' found on the back side of neck of the appellant. As regards this injury, PW-3 Dr. V.K. Nigam who examined the injuries of the appellant has stated in his cross examination that there is no possibility of any suffocation if the back side of the neck is pressed by force. The appellant in his statement has not stated a word even that because of infliction of blows by stick he apprehended that he may sustain grevious injuries or that such blows by deceased may cause his death and as a consequence thereof he inflicted scissor blow on the chest of deceased. On the contrary, the appellant in his written statement, which is part of his statement under Section 313 Cr.P.C. has staled that he apprehended danger to his life because he got suffocation as a result of pressing his neck with force by the deceased. Thus, the plea of accused that having apprehended death because of suffocation by pressing his neck by the deceased cannot be accepted in view of medical evidence, which clearly negatives the possibility of suffocation by pressing the neck from back side, even with force. Keeping in mind that the right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him, I am of the considered view that the appellant had no cause for reasonable apprehension that death or grevious hurt will otherwise be the consequence of such assault by the deceased, and therefore, it must be held that the appellant has exceeded right of private defence.
32. Having held that the right of private defence was available to the appellant, but he exceeded that right, the question that has to be considered is as to what offence the appellant has committed?
33. The learned trial court has found the appellant guilty for offence under Section 304 IPC and has convicted him under Part I of Section 304 IPC. It is surprising to note that the trial court has not assigned any reason in convicting the appellant under Section 304 Part-I IPC.
34. Exception 2 of Section 300 IPC provides that 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 offence.
35. Section 304 IPC deals with punishment for culpable homicide not amounting to murder. It is divided in two part. Part I of Section 304 applies when the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death. The IInd part of Section 304 IPC applies when the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death. Thus it is evident that for convicting a person under Part I of Section 304 IPC it must be proved that the act by which the death is caused is done with the intention to cause death or of causing such bodily injury is as likely to cause death.
36. Coming to the case in hand, suffice it to say that it is not in dispute that appellant inflicted single blow by scissor, which hit on the right side of chest of the deceased. It is also not in dispute that appellant did not repeat the blow. As per the doctor who conducted autopsy the wound of the size of 3/4' x 1/4' x thoracic cavity deep was on the upper 1/3rd of right chest in the 3rd intercostal space, 1 & 1/2' lateral to mid line, lateral end of the end of the would 1' above and medial to right nipple. PW-3 Dr. V.K. Nigam has stated that the space between two ribs is called inter-costal space. The doctor has admitted that it is true that if any sharp edged weapon is struck at this place even with less force, it will enter deep while cutting muscles. He further admitted that whatever weapon was used in this case, it had entered inside without any resistence and that can enter into cavity thoracic with minimum force. As already stated above, deceased Kafil was aggressor. He entered into the shop of appellant and started beating him by a stick which resulted in asmany as 9 injuries on his person, though all simple in nature and while deceased was taking the appellant out of the shop by catching his neck, the appellant could be able to lay his hands on a scissor lying on a machine. Admittedly, the scissor came in the hands of appellant incidently and he inflicted a single blow by that scissor with minimum force with a view to defend himself, which ofcourse, resulted into death of the deceased. He did not repeat any further blow. In the light of these admitted facts it can be said beyond any stretch of imagination that the appellant had no intention to cause death of Kafil. The basic ingredient of Part I of Section 304 IPC that the act done must be with the intention of causing death or of causing such bodily injury as is likely to cause done is completely missing in the instant case. The conviction of the appellant under Section 304 Part 1 is, therefor not sustainable in the eye of law.
37. What now remains to be considered is that under which offence the accused appellant can be held guilty. There cannot be any dispute that deceased died of chest injury caused by the appellant and, as already concluded above, the appellant had no intention to cause death of deceased. The circumstances, viz., (i) the deceased duly armed with a stick came to the shop of appellant (ii) caused as many as 9 injuries on his person (iii) the scissor came into hands of appellant per chance, (iv) the appellant in the process of getting rid of the clutches of deceased struck the scissor in his chest and (v) did not repeat further blow, suggest that appellant had the knowledge that striking scissor blow is likely to cause death or to cause such bodily injury as is likely to cause death. Therefore, in the light of the evidence on record and the established facts and circumstances of the case, the appellant can safely be attributed knowledge that his act of inflicting scissor blow is likely to cause death or such bodily injury as is likely to cause death. It is thus held that the appellant is guilty of having committed offence punishable under Part II of Section 304 IPC.
38. The appellant, at the time of commission of offence was a young boy of 19 years of age. Keeping in view the facts and circumstances of the case and the manner in which the incident took place, I am of the view that the appellant deserves leniency in the matter of sentence. The ends of justice would be met if the appellant is sentenced to a term of two years.
39. In the result, this appeal is partly allowed. While setting aside conviction and sentence under Section 304 Part 1 IPC, he is convicted under Section 304 Part II IPC and is sentenced to undergo rigorous imprisonment for two years with a fine of Rs. 200/-, in default of payment of fine, he shall further undergo 7 days simple imprisonment.