Heera Lal Vs. State of Rajasthan - Court Judgment

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criminal procedure code - section 313(4)--object of--examination of accused to give him opportunity to explain incriminating and exculpatory circumstances--it cannot be recorded as evidence and cannot be used to supplement or fill up lacuna in prosecution--accused making statement containing exculpatory and incriminatory passages--held, statement be read and considered as whole and impropable and unfounded exculpatory part be rejected.;the object of the section is to give an opportunity to the accused to explain the incriminating or inculpatory circumstances appearing against him in the prosecution evidence..the examination of the accused and the statement recorded under this section should not be recorded as evidence. it cannot be used to supplement the prosecution evidence. the object or purpose of the section is not to fill-up lacuna or void in the prosecution case. it is, therefore, required that the entire statement of the accused has to be taken into consideration. where the accused makes a statement containing inculpatory as well as exculpatory passages, it is not open to the court to take into consideration the inculpatory part and so reject or ignore the exculpatory part. the entire statement has to be read and considered. of course, after reading and taking into consideration the entire statement of the accused, the exculpatory part can be rejected when it is inherently improbable or there is reliable evidence to show that the exculpatory part is false or unfounded.;(b) penal code - section 302--statements of 3 eye witnesses unanimous and consistent that accused inflicted injuries with knife--recovery of knife and clothes at instance of accused affords material corroboration--knife and clothes stained with human blood--held, trial court was justified in finding that accused was perpetrator of crime.;the three eye witnesses unanimously and consistently stated that the appellant had inflicted injuries to the deceased janki lal with a knife and there is nothing to disbelieve them on this count. the recovery of the knife and the clothes in consequence of the information furnished by the appellant and at his instance affords a material corroboration to the evidence of the three eye witnesses. human blood was found on the knife and the clothes. the trial court was, therefore, perfectly justified in its finding that the appellant is the perpetrator of the crime and that it was he who had killed the deceased-victim janki lal.;(c) penal code - right of private defence--it cannot be assumed but has to be established--no material in defence evidence or prosecution evidence in respect of right of private defence--held, plea of right of private defence has been rightly rejected.;the availability of the right of private defence is not to be assumed. it has to be established just like any other fact. there is nothing in the prosecution side to come to the aid to the appellant on this point. the appellant adduced no evidence in defence in support of his plea of private defence. there is absolutely no material in the evidence of the prosecution witnesses nor is there any evidence in defence from which it may be inferred that the appellant wielded the knife and inflicted injuries with it to the deceased-victim janki lal in exercise of the right of private defence. the plea of the right of private defence was rightly rejected by the trial court.;(d) penal code - section 302--enmity due to civil and criminal litigation between parties--deceased not willing to execute sale deed in favour of accused and his family--12 knife injuries on various parts of body--injuries nos. 7 and 8 fatal--accused used rampuri knife with 6 inches blade--held, accused intended to cause death and was rightly convicted for murder under section 302.;appeal dismissed - - janki lal also left the house and took his bull-buffalo to the well of pw 1 purna shanker to provide water to the cattle. they made good their escape on bicycles. the injuries were ante-mortem and were caused by some sharp-edged weapon like knife. he, however, stated that janki lal tried to drag him in the well. in order to save himself from being dropped into the well, he inflicted injuries with a knife to janki lal. the testimony of the doctor shows that the victim was inflicted as many as twelve injuries by a sharp-edged weapon like knife. the appellant had a strong motive against the deceased-victim. 6. the occurrence had taken place at the well of pw 1 purna shanker. he deposed that his house is situate 25/30 paces away from his well. at the sun sink on october 17, 1980, when he was at his house, he heard the cries of the deceased janki lal 'mare re mare re'.hearing the cries, he rushed to his well and saw janki lal lying on the ground, lal shanker, bhagirath and chuuni lal (acquitted accused persons) had overpowered him while accused heeralal was inflicting blows to him with a knife. all of a sudden, they heard the cries 'mare re mare re' from the well-side of pw 1 purna shanker. as against the appellant heeralal, he found their testimony reliable and trustworthy. 20, he stated that he had inflicted injuries to janki lal with his knife, of course, with a qualified admission by adding that janki lal tried to drag and drop him in the well. it was argued that the admission of the accused that he inflicted injuries should be read in the context that he inflicted the injuries when the deceased attempted to drag and drop him in the well. pc, which is based on the principle involved in the maxim audi alteram partem (none should be condemned unheard) deals with the examination of the accused during trial. where the accused makes a statement containing inculpatory as well as exculpatory passages, it is not open to the court to take into consideration the inculpatory part and to reject or ignore the exculpatory part. of course, after reading and taking into consideration the entire statement of the accused, the exculpatory part can be rejected when it is inherently improbable or there is reliable evidence to show that the exculpatory part is false or unfounded. pc clearly admitted that he had inflicted injuries to the deceased-victim janki lal with a knife. he has qualified this statement by adding that he did so because the deceased attempted to drag and drop him in the well. now, unfortunately, none of these three eye witnesses was crossexamined in the light of this defence that the deceased attempted to drag and drop the accused in the well. it is well settled that the prosecution witnesses should be cross-examined in the light of the defence which the accused is going to take and on which he justifies the killing. the result is that the defence of the accused that the deceased attempted to drag and drop him in the well is an after-thought. we, arc, therefore, unable to accept the suggestion of the appellant that he inflicted injuries to the deceased-victim when the latter tried to drag and drop the accused in the well. 14, the appellant clearly admitted that he had produced his baniyan and shirt before the investigating officer. human blood was found on the knife and the clothes the trial court was, therefore, perfectly justified in its finding that the appellant is the perpetrator of the crime and that it was he who had killed the deceased-victim janki lal. he stated that he wielded the knife and inflicted injuries with it to the deceased-victim janki lal when the deceased tried to drag and drop him in the well. it has to be established just like any other fact. here in the instant case the appellant had a strong motive to finish the deceased-victim. looking to the strong motive and the nature of the injuries inflicted, we are of the opinion that the appellant intended to cause the death of janki lal.shyam sunder byas, j.1. accused heera lal was convicted under section 302, ipc and sentenced to imprisonment for life and a fine of rs. 100/-, in default of the payment of fine to further undergo three month's rigorous imprisoment by the learned additional sessions judge, udaipur by his judgment dated july 13, 1981. he has come-up in appeal and challenges his conviction.2. briefly stated, the prosecution case is that the deceased janki lal (aged about 55 years) was the elder brother of narain lal. the appellant heera lal is the son of their real sister. janki lal was living with his wife mst. bhagwati and the other members of his family in onad singh-ki-bhakal, p.s. kheroda, district, udaipur. both the brothers had sold their agricultural lands to the appellant and his father and brothers. narain lal executed the sale deed ex. p 31 in their favour but janki lal did not. he was approached by the appellant and his brothers for getting the sale deed executed and registered. janki lal avoided the execution and registration of the sale deed on one pretext or the other. this led to civil and criminal litigation between him and the appellant along with the members of his family, janki lal apprehended danger from the appellant and the members of his family. he reported the matter to police and the police submitted the report ex. p 33 under sections 107 and 145, cr.pc against the appellant and the members of his family in the court of sub-divisional magistrate, vallabhnagar on july 18, 1980. this further embittered the relations between janki lal and the appellant. at about 4 00 or 5.00 p.m. on october 17, 1980, bhagirath and chunni lal, who are the real brothers of the appellant, went to the house of janki lal. his wife mst. bhagwati (pw 9) served food to them. both of them had a talk with janki lal for making a compromise of the disputes. after taking their meals, bhagirath and chunni lal left the house. janki lal also left the house and took his bull-buffalo to the well of pw 1 purna shanker to provide water to the cattle. bhagirath and chunni lal also reached there. they again started talking with janki lal for a compromise. while the talks were going on, the appellant and his other brother lal shanker also reached there. lal shanker, bhagirath and chunni lal over-powered janki lal and caught hold of him. accused heera lal started striking blows to janki lal with a knife. janki lal raised cries. hearing his put-cries, pw 1 purna shanker, pw 2 khem shanker and pw 3 radha krishna rushed to the spot. the appellant struck eight/ten blows with his knife to janki lal. janki lal fell down. the above three witnesses challenged them. the appellant and his brothers thereafter took to heels. they made good their escape on bicycles. pw 9 mst. bhagwati also arrived on the spot. before she could arrive there, janki lal breathed his last. purna shanker went to police station kheroda and verbally lodged report ex. p 1 of the occurrence. the police registered a case under section 302, ipc against the appellant and his three brothers lal shanker, bhagirath and chunni lal. the station house officer fakir mohammed (pw 14) arrived on the spot. he sent three police constables to keep a watch at the site. he himself went in search of the accused persons and arrested them at about 9.00 a.m. on october 18, 1980 at the bus stand, bhindar. at about 11.00 a.m. on the same day, the station house officer along with the deputy superintendent of police arrived on the spot. he prepared the inquest of the victim's dead body. he also inspected the site and prepared the site plan. the post-mortem examination of the victim's dead body was conducted by pw 11 dr. lalit chandra the then medical officer incharge, primary health centre, vallabhnagar at about 2.00 p.m. on the same day. the doctor noticed the following injuries on the victim's dead body:(1) incised wound 1-1/2' x 1/2' x 1/4' right upper eye lid;(2) incised wound 1' x 1/4' x 1/4' ala of the nose (rt.);(3) incised wound 1' x 1/4' x 1/4' right axillary-fold;(4) abrasion 1' x 1/2' posterior aspect of upper l/3rd of right arm;(5) incised wound 1' x 1/2' x 1/2' one inch medial to right nipple;(6) incised wound 1' x 1/2' x 1/2' lateral border of right scapula;(7) incised wound 1' x 1/2' x 3' left laternal border 4th space (stab);(8) incised wound 1' x 1/2' x 1/4' lateral border of left nipple;(9) incised wound 1' x 1/2' x 1/2' left deltoid region;(10) incised wound 1' x 1/2' x 1/2' in the scapular region;(11) incised wound 1/2' x 1/2' x 1/4' right sternomastoid region;(12) incised wound i' x 1/4' x 1/4' posterior aspect of upper l/3rd of right fore-arm.the doctor was of the opinion that the cause of death was syncope as a result of injury to the heart. the injuries were ante-mortem and were caused by some sharp-edged weapon like knife. injury no. 7 was found sufficient in the ordinary course of nature to cause death. the medico-legal autopsy report prepared by him is ex. p 17. in consequence of the information furnished by accused heeralal, one knife was recovered. the blood-stained clothes of the deceased were also seized and sealed. some of the clothes of the miscreants were also seized and sealed. all these articles were sent for chemical examination and human blood was found on most of them including the knife recovered at the instance of the appellant. on the completion of investigation, the police submitted a challan against the appellant and his brothers lal shanker, bhagirath and chunni lal, in the court of the sessions judge. the case thereafter came for trial before the learned additional sessions judge, udaipur. the learned sessions judge framed charge under section 302, ipc against the appellant heeralal and under section 302/34, ipc against the remaining three accused lal shanker, bhagirath and chunni lal. they all pleaded not guilty and demanded the trial. in support of its case, the prosecution examined 14 witnesses and filed some documents. in defence, no evidence was adduced. accused lal shanker, bhagirath and chunnilal denied their presence on the spot and claimed absolute innocence. accused heeralal, who is the appellant before us, admitted his presence on the spot and also admitted that he inflicted injuries to the deceased janki lal with a knife. he, however, stated that janki lal tried to drag him in the well. in order to save himself from being dropped into the well, he inflicted injuries with a knife to janki lal. on the conclusion of the trial, the learned additional sessions judge found no incriminating evidence against accused lal shanker, bhagirath and chunni lal. they were, therefore, acquitted. the learned sessions judge, however, held the charge duly established against the appellant heeralal. he was consequently convicted and sentenced, as mentioned at the very out-set.3. we have heard m/s. k.c. gaur and mr. niranjan gaur for the appellant and the learned public prosecutor mr. l.s. udawat. we have also gone through the case file carefully.4. it may be pointed out before dealing with the contentions of the learned counsel for the appellant that the opinion of dr. lalit chandra (pw 11) relating to the number and nature of the injuries and the cause of death was not assailed before us. we have also gone through the testimony of the doctor and find no reasons to distrust his opinion about the cause of death of the victim jankilal. the testimony of the doctor shows that the victim was inflicted as many as twelve injuries by a sharp-edged weapon like knife. he died on account of the injury to the heart. the death of janki lal was, thus, homicidal.5. in assailing the conviction, the first contention raised by the learned counsel for the appellant is that the three alleged eye witnesses viz., pw 1 purna shanker, pw 2 khem shanker and pw 3 radha krishna were wrongly treated as true and trustworthy. it was argued that they have been disbelieved by the trial court in respect of the three acquitted accused lal shanker, bhagirath and chunni lal. when the major part of their testimony has been found false, it would not be free from risk in putting reliance on the residue of their statements against the appellant heeralal. it was argued that when these three eye witnesses could falsely implicate the three acquitted accused persons, there is no guarantee that what they deposed against the appellant is true. it was, on the other hand, contended by the learned public prosecutor that the three eye witnesses have given a consistent and unanimous version that it was the appellant who had inflicted injuries to the deceasedvictim with a knife. this version has been accepted by the trial court after a careful and thorough study of their evidence. it was further argued that the accused's own admission made by him in his statement under section 313, cr. pc that he had inflicted injuries to the deceased-victim, affords a material corroboration to the statements of these three eye witnesses. it was further argued that the knife, which wielded in the infliction of the injuries, was recovered in consequence of the information furnished by the appellant. the knife ( article 2) was found stained with human blood. the appellant was wearing baniyan (art. 5) and bushirt (article 6) at the time of the commission of the crime. both these clothes were recovered in consequence of the information furnished by him and both were stained with human blood. the appellant had a strong motive against the deceased-victim. civil and criminal litigation had taken place between them. the deceased-victim apprehended risk to his life from the appellant and the members of his family. the police had filed the report (ex. p 33) against the appellant, his brothers and father under section 107, cr.pc. there was, thus, ample corroboration to the testimony of three eye witnesses as against the appellant. it was submitted that the court blow was, therefore, justified in accepting the testimony of three eye witnesses against the appellant. we have taken the respective submissions into consideration.6. the occurrence had taken place at the well of pw 1 purna shanker. he deposed that his house is situate 25/30 paces away from his well. at the sun sink on october 17, 1980, when he was at his house, he heard the cries of the deceased janki lal 'mare re mare re'. hearing the cries, he rushed to his well and saw janki lal lying on the ground, lal shanker, bhagirath and chuuni lal (acquitted accused persons) had overpowered him while accused heeralal was inflicting blows to him with a knife. he saw four five injuries being inflicted to jank lal by the appellant heera lal. pw 2 khem shanker and pw 3 radha krishna also arrived on the spot. they challenged the culprits and the culprits, leaving janki lal, took to heels. they chased them but could not catch them. the injuries proved fatal and janki lal succumbed instantaneously on the spot. he went to the police station and lodged report ex. p 1 of the occurrence. the houses of pw 2 khem shanker and pw 3 radha krishna are situate a few yards away from the place of the occurrence. they deposed that in the evening of october 17, 1980, they were at their houses. all of a sudden, they heard the cries 'mare re mare re' from the well-side of pw 1 purna shanker. they went running there and saw janki lal lying on the ground. lal shanker. bhagirath and chunni lal had over powered him. the appellant heeralal was inflicting injuries to janki lal with a knife. they raised cries and the four culprits, leaving janki lal on the spot, took to heels. they chased the culprits but could not catch them, the learned sessions judge scrutinized their evidence and arrived at the conclusion that the role assigned to chunni lal, bhagirath and lal shanker by these three eye witnesses is not true. as against the appellant heeralal, he found their testimony reliable and trustworthy.7. the pertinent question before us is whether these three eye witnesses can be safely relied upon as regards the appellant. nothing was suggested in their cross-examination that they bear any enmity against the appellant. they are not related to the deceased-victim. if the process of evaluation of the evidence, it is open to the court to reject a part of the testimony of a witness and to accept the residue. however, before accepting the residue the rule or prudence is that there should be corroboration in support of it. here in the instant case, there is ample corroboration to the evidence of three eye witnesses.8. the first corroboration is the admission of the appellant heeralal made by him in his statement under section 313, cr.pc. in answer to question no. 20, he stated that he had inflicted injuries to janki lal with his knife, of course, with a qualified admission by adding that janki lal tried to drag and drop him in the well. the contention of the learned counsel is that the whole statement of the appellant should be read and considered before the inculpatory portion of it is acted upon. it was argued that the admission of the accused that he inflicted injuries should be read in the context that he inflicted the injuries when the deceased attempted to drag and drop him in the well.9. now, section 313, cr.pc, which is based on the principle involved in the maxim audi alteram partem (none should be condemned unheard) deals with the examination of the accused during trial. clause (b) of section 313, cr.pc makes it imperative on the court to question the accused after when the prosecution completes its evidence and before the accused is called on for his defence. the object of the section is to give an opportunity to the accused to explain the incriminating or inculpatory circumstances appearing against him in the prosecution evidence and which...sub-section (4) speaks that the answers given by the accused to the questions put to him may be taken into consideration against him. the words 'the answers by the accused may be taken into consideration' have a vital significance. the examination of the accused and the statement recorded under this section should not be regarded as evidence. it cannot be used to supplement the prosecution evidence. the object or purpose of the section is not to fill-up lacuna or void in the prosecution case. it is, therefore, required that the entire statement of the accused has to be taken into consideration. where the accused makes a statement containing inculpatory as well as exculpatory passages, it is not open to the court to take into consideration the inculpatory part and to reject or ignore the exculpatory part. the entire statement has to be read and considered. of course, after reading and taking into consideration the entire statement of the accused, the exculpatory part can be rejected when it is inherently improbable or there is reliable evidence to show that the exculpatory part is false or unfounded.10. here in the instant case, the appellant, in his statement under section 313, cr.pc clearly admitted that he had inflicted injuries to the deceased-victim janki lal with a knife. he has qualified this statement by adding that he did so because the deceased attempted to drag and drop him in the well. now, unfortunately, none of these three eye witnesses was crossexamined in the light of this defence that the deceased attempted to drag and drop the accused in the well. even no suggestion was put to them in their cross-examination on this point. it was only for the first time that the appellant made out such a plea in his statement under section 313, cr.pc. it is well settled that the prosecution witnesses should be cross-examined in the light of the defence which the accused is going to take and on which he justifies the killing. the result is that the defence of the accused that the deceased attempted to drag and drop him in the well is an after-thought. we, arc, therefore, unable to accept the suggestion of the appellant that he inflicted injuries to the deceased-victim when the latter tried to drag and drop the accused in the well. there is no material even of scanty nature on the record to suggest that there is truth in the exculpatory part of the appellant's statement.11. the other corroboration comes from the recovery of the knife. the accused, in his-statement, has admitted that the knife with which he inflicted the injuries to the deceased-victim was got recovered at his instance. in answer to questions no. 13 and 16, he stated, 'he got the knife recovered.... the knife recovered is article 2. as per report ex. p. 35 of the serologist, knife (article 2) was found stained with human blood.12. the third corroboration comes from the fact that the clothes baniyan (article 5) and bushirt (article 6) of the appellant were found stained with humam blood. these two clothes were recovered in consequence of the information furnished by him. the appellant was arrested on october 18, 1980 vide arrest memo ex. p 20. after his arrest, made the disclosure statement ex. p 20. in ex. p20, he stated that he had concealed the knife in a lonely place near a temple and his clothes baniyan and bushirt in his house. in consequence of this disclosure statement ex. p. a 4, baniyan (article 5) and bushirt (article 6) were recovered at about 5.30 p.m. on the same day from his house. they were seized and sealed and seizure memo ex. p 11 was prepared. in his statement under section 313, cr. pc in reply to question no. 14, the appellant clearly admitted that he had produced his baniyan and shirt before the investigating officer. these two clothes baniyan (article 5) and bushirt (article 6), on chemical examination, were found stained with human blood vide report ex. p 35 of the serologist. this again affords a valuable corroboration to the evidence of the three eye witnesses.13. the resultant position is that the the three eye witnesses unanimously and consistently stated that the appellant had inflicted injuries to the deceased janki lal with a knife and there is nothing to disbeliev them on this count. the recovery of the knife and the clothes in consequence of the information furnished by the appellant and at his instance affords a material corroboration to the evidence of the three eye witnesses. human blood was found on the knife and the clothes the trial court was, therefore, perfectly justified in its finding that the appellant is the perpetrator of the crime and that it was he who had killed the deceased-victim janki lal.14. in his statement under section 313, cr. pc the accused tried to make out the plea of private defence of person. he stated that he wielded the knife and inflicted injuries with it to the deceased-victim janki lal when the deceased tried to drag and drop him in the well. now, when the killing of the victim by the appellant stands proved, it is for the appellant to show that the killing was justified and excuseable. at times, his explanation and statement recorded under section 313, cr.pc may be sufficient for this purpose. but, here in the instant case, as we have discussed earlier, no suggestion was put to the eye witnesses vis-a-vis the exercise of the right of private defence of person by the accused. it may be repeated that it was for the first time in his statement under section 313, cr.pc that the appellant came out with this plea of the exercise of the right of private defence. the availability of the sight of private defence is not to be assumed. it has to be established just like any other fact. there is nothing in the prosecution side to come to the aid to the appellant on this point. the appellant adduced no evidence in defence in support of his plea of private defence. there is absolutely no material in the evidence of the prosecution witnesses nor is there any evidence in defence from which it may be inferred that the appellant wielded the knife and inflicted injuries with it to the deceased-victim jankilal in exercise of the right of private defence. the plea of the right of private defence was rightly rejected by the trial court.15. it was next argued by the learned counsel for the appellant that no offence under section 302, i.p.c. can be said to have been made out. it was argued that the appellant is the son of the deceased-victim's real sister. he never intended to kill the victim. since the death of the victim has taken place due to infliction of the injuries, the offence made out falls within the ambit of section 304, part i, ipc. our attention was drawn to some desisions in this connection. we need not cite those decisions. here in the instant case the appellant had a strong motive to finish the deceased-victim. there were civil and criminal litigations between the deceased-victim and the appellant and the members of his family. ex. 29 is the complaint filed by the deceased-victim against the appellant, his father and brothers. the deceased apprehended danger to his life at the hands of the appellants and the members of his family. he reported the matter to the police and the police submitted report ex. p 33 against the apellant, his father and brothers in the court of sub-divisional magistrate, vallabhnagar. the deceased-victim was not willing to execute and register a sale deed of the fields in favour of the appellant and the members of his family. the appellant and the members of his family got annoyed with the deceased. the medical evidence shows that the deceased-victim janki lal was inflicted as many as twelve injuries with a knife on the various parts of his body. injuries nos. 7 and 8 were found fatal as they were on left sternal border and lateral border of left nipple. injury no. 7 was stated by the doctor as sufficient in the ordinary course of nature to cause death. looking to the strong motive and the nature of the injuries inflicted, we are of the opinion that the appellant intended to cause the death of janki lal. apart from that, since injury no. 7 was sufficient in the ordinary course of nature to cause death, the case falls within clause 3rdly of section 300 and the defence made out is that of murder punishable under section 302, ipc.16. it may be mentioned that knife (article 2) is not an ordinary pen or kitchen knife. this is a rampuri knife. the recovery memo ex. p 10 of the knife shows that its iron blade is nearly six inches (eight anguls) in length. this type of knife can be easily weilded for deadly effect. thus, looking to the type of weapon used, the parts on which the fatal injuries were inflicted and the motive which prompted the appellant to inflict injuries to the deceased-victim, we have the least hesistation to conclude that the offence made out is that of culpable homicide amounting to murder, the appellant was rightly convicted and sentenced under section 302, ipc. no interference is called for.17. for the reasons discussed above, we maintain the conviction and sentence of appellant heeralal under section 302, ipc. his appeal is consequently dismissed.