Partly allowed

Dauji v. State

Allahabad HC22 Mar 2018CRLA/748/1991

Case brief

AI extract

What is this about?

In a criminal appeal challenging a conviction for culpable homicide not amounting to murder, the High Court modified the conviction from Section 304(1) to Section 304(2) IPC due to lack of premeditation and evidence of sudden anger. The appellate court upheld the conviction but remade the sentencing structure to reflect the nature of the inexplicable act.

What did the court decide?

Conviction under Section 304(1) IPC altered to Section 304(2) IPC; sentence reviewed to five years rigorous imprisonment and fine.

Dauji Vs State — Murder and Culpable Homicide | Allahabad HC (2018)

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Court No. - 11

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Case :- CRIMINAL APPEAL No. - 748 of 1991

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Appellant :- Dauji Respondent :- State Counsel for Appellant :- J.N. Chaturvedi,Namit Kumar Sharma Counsel for Respondent :- A.G.A.

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Hon'ble Abhai Kumar,J.

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Heard Sri Rajiv Lochan Shukla, learned counsel for the appellant and the learned AGA for the State and perused the record.

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This criminal appeal has been preferred against the judgment and order dated 16.4.1991 passed by Sessions Judge, Mathura in Session Trial No. 562 of 1987 (State Vs. Dauji alias Daudayal) whereby he convicted the appellant under Section 304 (1) IPC and sentencing him for 10 years rigorous imprisonment and a fine of Rs. 2000/- in default in payment of fine to further undergo for six months additional rigorous imprisonment.

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At the very outset on the basis of arguments put-forward by the learned counsel for the appellant and from the perusal of record it can be said that trial court has taken great pains in deciding the matter elaborately covering all the minute points and all the points put-forward by the defence side and this court is constraint to say that there is not much to be subtracted or added to the finding returned by the trial court. Before the trial court several minute points were also raised which were discussed by the trial court and all the points that were being raised before this Court by the counsel for the appellant were also considered by the trial court and all the defence is being taken aside by the trial court.

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Sworn of facts, some altercation took place between the son of the complainant Vijay Kumar and accused-appellant Dauji in regard to taking soft drink bottles to home by

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deceased from the shop of appellant and consequently appellant is said to have inflicted fatal injuries to the deceased. It has also come in the evidence that deceased also hit the appellant by a bottle by which bottle broken and pieces of glass were found on the spot. Complainant as well as his cousin Babu Lal saw the incident alongwith Kisso, although Kisso has not been produced before the trial court. Third eyewitness PW3 Suresh has also been produced who is said to be hawker and selling the food material at the given time whereas rest of the witnesses are formal in nature.

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Certain facts can be said to be admitted facts in the present matter are to be incorporated initially. Deceased died due to injuries caused by a sharp edged weapon and out of nine injuries on the part of the deceased, eight were caused by the sharp edged weapon and from the opinion of doctor it can be inferred that same were inflicted by knife. Injury No. 9 is abrasion and not very material for the disposal of the present case and could have been caused due to friction when altercation took place between the appellant and deceased. Although, it has been accepted by the doctor PW-4 Sri R.K. Chaturvedi. Injury No. 1 could be caused by Javelin but it is also asserted by the doctor that injury could be of knife. Seeing the dimension of the Injury No. 1, it can very well be accepted that injury could have been caused by knife and result of stabbing. Place of incident is also said to be admitted and trial court has minutely given the facts regarding the place of incident. It has been categorically observed by the trial court that blood stained and plain soil was taken by the Investigating Officer, although it has not been shown in the site plan as to from where soil was taken. It is observation of the trial court that mere non-mentioning of place regarding the collection of soil in the site place, cannot be fatal and it is negligence on the part of the Investigating Officer and same cannot be basis for acquittal. Similarly, source of light has also not been shown in the site plan whereas as per witnesses, electricity was there at

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the place of incident, electricity pole was also there and light was also lit in the shops nearby. This is consistent statement of all the three eye-witnesses and witnesses are cross examined and trial court after considering all these points came to the conclusion that seeing the place of incident it can very well be accepted that there was light of electricity and mere nonmentioning of electricity pole or electricity light by the Investigating Officer in the site plan, cannot be said to be fatal and it can very well be said that ocular evidence is very clear on the point and omission of the Investigating Officer in this regard is of no help to the defence side. It is also argument of the learned counsel for the appellant that Investigating Officer also failed to locate the place from where eye-witnesses saw the incident. This argument is not wholly correct because it has been shown in the site plan by the Investigating Officer that witnesses were coming from the temple and way by which witnesses came on the spot is also being shown in the site plan and it cannot be said that from where witnesses saw the incident has not been shown in site plan. So far as the PW-3 is concerned, his location has not been shown by the Investigating Officer in the site plan but as has been observed by the trial court that consistent statement of PW-3 in regard to the incident is acceptable and his presence cannot be doubted merely on the fact that his location has not been shown in the site plan.

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Various points are being raised by the learned counsel for the appellant. Some of the grounds are similar those were taken by the defence side before the trial court and were considered by the trial court but certain new facts are also being put-forward by the learned counsel for the appellant and they are to be taken one by one.

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The first and foremost point that is being raised by the learned counsel for the appellant is regarding the ante-time of lodging of FIR. It is submission of the learned counsel that FIR was lodged much later than it has been shown. Incident took

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place at 8.30 after that body was taken to Mehata Nursing Home and when Mehata Nursing Home denied to treat the injured/deceased, then he was taken to Methodist Hospital that was three kilometer away from the place of incident where he was declared dead. After that complainant came back to Krishna Nagar and where he got the FIR scribed from his cousin Babu Lal PW-2 and then got the FIR lodged.

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Seeing the fact that incident took place at 8.30 p.m. and body was taken to Mehata Nursing Home and then to Methodist Hospital and body was carried on rickshaw, it can very well be assumed that in the whole process, more than an hour would have taken place, then he returned back to the place of incident and got the FIR scribed. As stated above and if accept to be true then it can be accepted that FIR is lodged within reasonable time. It is then argued by the learned counsel that complainant and his cousin are chance witnesses and they were not present at the time of incident. They were informed regarding the incident and they came to the place of incident from their home which is six kilometers away from the place of incident. This fact can also be fortified by the presence of the mother of the deceased when body has been taken to the Hospital and it is vehemently argued by the learned counsel that presence of mother of the deceased when injured is taken to hospital, means that she also came from her home and they were not present when the incident took place. As per learned counsel, complainant as well as his cousin and wife came later on, much later than the time of FIR is said to have been lodged and got the FIR lodged ante-time. The argument of learned counsel is not tenable. It has been clearly stated by the complainant that his son used to live with his brother Tejpal Singh in the mohalla Krishna Nagar and he used to visit the place of his brother Tejpal Singh. He was there at the time of incident and mere by fact that it has not been mentioned in the FIR that he came to Krishna Nagar on the day of incident, does not effect the prosecution case. Similarly, the presence of

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cousin of the complainant PW-2 can also be inferred naturally and being the cousin of the complainant he could have accompanied the complainant when complainant came to the place of his brother and it cannot be said that he came later on and FIR has been written ante-time. The presence of PW-2 Babu Lal at the place of incident will be discussed later on, on the point of being chance witness. It is also submitted that of the learned counsel that wife of the complainant also reached on spot and she also accompanied the injured/deceased to the hospital. She must have come on her home after receiving the information of the incident and she could have been taken time for that and accordingly, her presence when body is being taken to the hospital, shows that FIR is ante-time. The contention of the learned counsel is not tenable. There is no cross on this point from the witnesses. It is not asked as to from where mother of the deceased reached to spot. From the prosecution side, it is not claimed that she is an eye-witness but it is possibility that she might have been present at the house of Tejpal and should have come on the spot after hearing about incident. In absence of any cross-examination on this point it cannot be inferred that mother of the deceased came to the spot after receiving the information at her original home and on that basis it cannot be said that the FIR is antetime. The next argument on this point of the learned counsel is that there are discrepancies in the prosecution papers and manipulation has been made by the Investigating Officer by converting the case crime number from 484 to 483. In the site plan crime number was inserted later on whereas in the inquest report an overwriting has been made and crime number has been made from 484 to 483. This is admitted fact that FIR was lodged at reporting police chowki and not at the police station. Crime number was allotted later on by police station. Regarding discrepancy in the crime number, a cross examination ought to have been made in this regard and position could have been made clear if cross examination would have done. Trial court has clearly observed that in

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absence of cross examination on this point same cannot be taken to be adverse and no benefit can be given to the prosecution. This Court also of the view that overwriting and cutting that has been made in the challan lash as well as in the inquest report is vividly considered by the trial court and no different opinion can be given by this Court. Accordingly, it cannot be accepted that FIR was ante-time and argument in this regard is not acceptable.

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The next contention of learned counsel for the appellant is regarding the presence of witnesses on the spot and it has been argued that all the witnesses are chance witnesses. As already observed above, the presence of PW-1 cannot be doubted as brother of complainant Tejpal Singh, resident the locality of incident and son of complainant/deceased was living with Tejpal Singh and in the circumstances the visit of the appellant to the place of incident is not altogether untrustworthy. So far the presence of PW-2 Babu Lal is concerned, that has been disputed on the ground that as per statement of Babu Lal, he came to Mohalla of incident for purchasing medicines and he purchased medicines of Rs. 1000 to 1200/- from Bansal Medical Store. In defence, owner of Bansal Medical Store DW-1 has been produced wherein he has stated that no such medicine has been sold to the appellant but this fact has not been accepted by the trial court and this Court is also of the view that same is liable to be discarded. DW-1 has accepted that certain medicines are being sold without cash memo, although cash memo book has been produced. The statement of DW-1 is full of contradictions. At one place, he has stated that medicine has not been sold without cash memo but later on he accepted that medicine has been sold without cash memo and from the statement of DW-1 it cannot be accepted that medicine is not purchased by Babu Lal. The presence of Babu Lal on the spot is also explained by the prosecution side and it has been stated that he did not go to his home on the date of incident and stayed at Krishna

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Nagar. It is also in the statement that he was regular visitor of mohalla, the place of incident for purchasing medicine. The presence of PW-3 at the time incident is also disputed by the learned counsel for the appellant and it has been submission of the learned counsel that PW-3 Suresh is resident of far away place from the place of incident and it cannot be accepted that a person living at far away from the place is coming to the place of incident for selling material as a hawker. This point also has been considered by the trial court in an elaborate manner and came to the conclusion that on eye account of witness is trustworthy and same cannot be doubted. The fact is certainly surprising that a person living six miles away from the place of incident, used to come as a hawker to the place of incident but that is not an impossible phenomena and if witness is saying so, same cannot be discarded at the outset. A person can act like that for meeting his both ends. Non mentioning of the name of this witness in the FIR is also not fatal for the prosecution and non-mentioning the name of this witness in the FIR is also being explained by the prosecution. His statement was taken by the Investigating Officer when he went to the place of incident on the next day for the investigation and statement of the witness taken by the Investigating Officer on the next day of the incident. Accordingly, the contention of the learned counsel that witnesses were chance witnesses is not acceptable.

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The contention of the learned counsel that appellant was not doing the business in the referred shop at the time of incident rather shop was given on rent to somebody else but no evidence in this regard is being furnished by the appellant and by mere a suggestion that appellant was not doing a business in the said shop cannot be accepted. Similarly, the defence of the appellant regarding the non-collection of clothes wore by the complainant/PW-1 is also not fatal as it was Investigating Officer who was required to take the blood stained clothes of PW-1, if it has not been done, it is fault of

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investigation and PW-1 in a very clear terms stated that blood in his clothes was there when body of the deceased was picked by him. It is also stated by him that he is not aware whether Investigating Officer saw the blood stained clothes or not. He did not offer blood stained clothes to the Investigating Officer and Investigating Officer did not ask him to handover the blood stained clothes of the complainant. PW-2 Babu Lal has shown ignorance whether his clothes were blood stained or not after picking the body of the deceased but he has not denied that blood was not soaked in his clothes when he picked the body of the deceased. This fact is also important that complainant alongwith deceased was on one rickshaw whereas PW-2 Babu Lal and mother of the deceased sat on the other rickshaw, so in the circumstances, PW-1 was more likely to have blood on his clothes and PW-2 might not have got the blood stained on his clothes.

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The next point that is being raised by the learned counsel for the appellant is regarding the identification of the appellant by the witnesses. It is submitted by the learned counsel that witnesses were not known to the appellant prior to the incident and that is why an application for identification was moved by the appellant before the trial court but no order was passed upon that and test identification of appellant has not been got done by the Investigating Officer and accordingly the whole investigation is vitiated and on the basis of that appellant is entitled for acquittal. In this regard the statement of PW-1 is quite clear. He has stated in simple words that he used to come to the place of his brother and he also used to visit the shop of the appellant and used to purchase goods from there. It has been specifically mentioned by him that appellant was known to him very well. The statement of PW-2 is also clear on this fact and has stated that he knew the appellant although name of the appellant was not known to him at the time of incident but during incident, he came to know the name of the appellant. It is argument of the learned counsel that when PW-

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2 was purchasing articles from the shop of appellant, then how cum he was not aware of the name of the appellant and only could know the name of the appellant during the incident. This is not an unnatural phenomena and a person might not knowing the name of shopkeeper inspite of purchasing from the shop various times and cannot be said that PW-2 ought to have known the name of the appellant. Similarly, PW-3, also stated that he came to know the name of the deceased, father of deceased as well as of the appellant during the incident as names were being taken there. The statement of the witness PW-3 is quite natural and the fact that he could not give name of any other shopkeeper is also not fatal and trial court has rightly observed that due to lapse of time he could have forgotten the name of shopkeepers. It is also stated by PW-3 that few days after the incident, he left the work of hawker and now doing the work in his field. After three years of the incident, statement of the witness has been taken and in the circumstances, if he is not remembering the name of the other persons at the place of incident, same cannot be taken adversely.

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As already said above, defence side has utterly failed to prove that appellant was not doing the business of beetle shop at the time of incident and also failed to prove that shop was given to somebody else on rent. The stated fact that he was doing business prior to the incident, makes it incumbent upon the appellant to prove but he has miserably failed in that. So presence of appellant at the place of incident is to be accepted in due course.

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So far the claim of identification of the appellant is concerned, same has also been discussed by the trial court elaborately and it can very well be said that accused is having right to claim for identification in view of the Amendment of U.P. as has been considered by the trial court but same is not obligatory upon the executive authorities and if identification parade is not conducted, then it is at the risk of the

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prosecution. Normally, if there is evidence to the effect that accused might not known to witnesses then identification parade ought to be conducted just to fortify the veracity of the witnesses but in case no identification has been done, then it is to be seen at the time of trial whether such non-identification of the accused persons can be fatal to the prosecution or not.

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The Hon'ble Apex Court in case of Jadunath Singh and another Vs. The State of U.P., AIR 1971 SC 363 , dealing with the matter of identification has clearly observed that absence of test identification is not fatal in all cases. However, in case of doubt identification parade should be held. It is observed by the apex court that where there is clear cut allegation that witnesses are known to accused and name of accused also finds place in the FIR, then absence of identification parade is not material. The apex court in paragraph 18 observed as follows:

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"It seems to us that, it has been clearly laid down by this Court in Criminal Appeal No. 92 of 1956, D/- 15.1.1957 that the absence of test identification in all cases is not fatal and if the accused person is well-known by sight it would be waste of time to put him up for identification. Of course if the prosecution fails to hold an identification on the plea that the witnesses already knew the accused well and it transpires in the course of the trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case. It seems to us that if there is any doubt in the matter the prosecution should hold an identification parade specially if an accused says that the alleged eyewitnesses did not know him previously. It may be that there is no express provision in the Code of Criminal Procedure enabling an accused to insist. on an identification parade but if the accused does make an application and that application is turned down and it transpires during the course of the trial that the witnesses did not know the accused previously, as pointed out above the prosecution will, unless there is some other evidence, run the risk of losing the, case on this point."

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The Apex Court in case of Gopal and others Vs. State of U.P., 2003 SCC (Cri) 1539 , considered the above point and found that test identification parade is only required when eye-witness questioned by the Investigating Officer had not given any indication of identity of the assailants. Where details and names of the assailants in the FIR itself has been given, then there is no need of test identification parade. The apex Court in paragraph 12 observed as follows:

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"12. Learned counsel, alternatively, contended that a test identification parade should have been conducted by the investigating officer and non-conduct of such a parade had impaired the worth of the evidence of the eyewitnesses. The test identification parade would have been necessary for the investigating officer if the eyewitnesses questioned by him had not given any indication of the identity of the assailants. In the present case we have noticed that PW1 has given details of the names of the assailants in the FIR itself. In such a situation no investigating officer would normally resort to a rest identification parade."

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Keeping in view the law propounded by Hon'ble Apex Court and also the law referred by the trial court in this regard it can be said that appellant is named in the FIR and PW-1 as well as PW-2 has clearly stated that appellant was known to them prior to the incident and from that no doubt regarding the identity of the appellant is there and in the circumstances if no test identification has been conducted of the appellant, same cannot be said to be perverse and prejudicial to the appellant.

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The point of self defence has also been considered by the trial court at length and this point is also being pressed by the learned counsel for the appellant that even if plea of self defence has not been taken and no evidence from side of defence has been pressed in this regard, even then same can be taken into consideration by the court from the evidence produced by the prosecution.

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Learned counsel has fortified his argument on the basis

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of law provided by Hon'ble Apex Court at various times. The Apex Court has in case of Shajahan Vs. State of Kerala, 2007 (12) SCC 96 in paragraphs 12 and 13 observed as follows:

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"12. The only other question which needs to be considered, is the alleged exercise of right of private defence. Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression right of private defence'. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 (in Short the burden Evidence Act'), the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is

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pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused was necessary for either warding off the attack or for forestalling the futher reasonable apprehension from the side of the acussed. The burden of establishing the plea of self-defence is on the accused and the stands discharged by showing preponderence of probabilities in favour of that plea on the basis of the material on record. (See Munshi Ram and Ors. v. Delhi Administration, AIR (1968) SC 702, State of Gujarat v. Bai Fatima, AIR (1975) SC 1478, State of U.P. v. Mohd. Musheer Khan, AIR (1977) SC 2226, and Mohinder Pal Jolly v. State of Punjab, AIR (1979) SC 577 Sections 100 and 101 deifne the extent of the Right of private defence of body. If a person has a right of private defence of body under Section 97. that right extends under Section 100 to causing death if then is reasonable apprehension that death or grievous hurt would be the consequence of the assault. The oft-quoted observation of this Court in Salim Zia v. State of U.P., AIR (1979) SC 391, runs as follows:

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"It is true that the burden on an accused person to establish the plea of self defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence."

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The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderence of probabilities is in favour of his plea.

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13. The number of injuries is not always a safe criterion for determining who the aggressor was . It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilise the version of the

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right of private defence. Non explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. [See Lakshmi Singh v. State of Bihar, AIR (1976) SC 2263]. A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down the limit of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101, IPC define the limit and extent of right of private defence. "

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The Hon'ble Apex Court has clearly stated that the facts are to be taken in totality and in order to find whether the right

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of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting.

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Similarly in case of Krishnan Vs. State of Tamil Nadu, 2006 (11) SCC 304 , the apex court observed as follows:

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"9. It is now well settled that the onus is on the accused to establish that his action was in exercise of the right of private defence. The plea can be established either by letting in defence evidence or from the prosecution evidence itself, but cannot be based on speculation or mere surmises. The accused need not take the plea explicitly. He can succeed in his plea if he is able to bring out from the evidence of the prosecution witnesses or other evidence that the apparent criminal act was committed by him in exercise of his right of private defence. He should make out circumstances that would have reasonably caused an apprehension in his mind that he would suffer death or grievous hurt if he does not exercise his right of private defence. There is a clear distinction between the nature of burden that is cast on an accused under section 105 of the Evidence Act (read with section 96 to 106 of Indian Penal Code) to establish a plea of private defence and the burden that is cast on the prosecution under section 101 of the Evidence Act to prove its case. The burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a preponderance of probability (vide Partap vs. State of U.P. (1976 (1) SCC 757); Salim Zia vs. State of UP (1979 (2) SCC 648); and Mohinder Pal Jolly vs. State of Punjab (1979 (3) SCC 30).

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In Sekar vs. State [2002 (8) SCC 354], this Court observed : A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether right of private defence is available or not, the injuries received by the accused, the

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imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence, is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case, the Court can consider it even if the accused has not taken it. If the same is available to be considered from the material on record.

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The above legal position was reiterated in Rizan v. State of Chhattisgarh [2003 (2) SCC 661]. After an exhaustive reference to several decisions of this Court, this Court summarized the nature of plea of private defence required to be put forth and the degree of proof in support of it, thus :

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"Under Section 105 of the Indian Evidence Act, 1872, the burden of proof is on the accused, who sets off the plea of self- defence, and, in the absence of proof, it is not possible for the court to presume the truth of the plea of self-defence. The court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. When the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the

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further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea."

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The apex court clearly held that even if defence under Section 313 Cr.P.C. regarding self defence is not being taken, even then defence side can place this matter before the court from the evidence of the prosecution itself but it cannot be based on speculation or mere surmises.

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By placing judgment of apex court in case of Chanan Singh Vs. State of Punjab, 1979 (4) SCC 399 , it is contention of the learned counsel that a true version of the incident is not being given by the prosecution side and it has not been made clear by the prosecution as to when deceased assaulted the appellant from the bottle.

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In the case of State of Rajasthan Vs. Manoj Kumar; Raju @ Raj Kumar and another, 2014 (5) SCC 744 , observed by the apex court that burden on an accused person to establish the plea of self defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the crossexamination of the prosecution witnesses or by adducing defence evidence. The apex court observed as follows:

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"11. Mr. Milind Kumar, learned counsel for the State, has submitted that the accused persons had not taken the plea of right of private defence in their statement under Section 313 of the Code of Criminal Procedure and hence, the High Court could not have adverted to the same. It is further put forth that even assuming the stand can be considered, in the case

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at hand the accused persons have miserably failed to discharge the burden in establishing their right of private defence. In this context, we may refer with profit to the pronouncement in Munshi Ram and others v. Delhi Administration[1] wherein it has been laid that even if an accused does not take the plea of private defence, it is open to the court to consider such a plea if the same arises from the material on record and burden to establish such a plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record. In Salim Zia v. State of Uttar Pradesh[2] the observation made by this Court to the effect that it is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of prosecution witnesses or by adducing defence evidence. Similarly, in Mohd. Ramzani v. State of Delhi[3], it has been held that it is trite that the onus which rests on an accused person under Section 105, Evidence Act, to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence with which the accused is charged, beyond reasonable doubt.

¶73

12. In the case at hand, the plea of right of private defence arises on the base of materials on record. As far as onus is concerned, we find that there is ocular and documentary evidence to sustain the concept of preponderance of probability. It can not be said that there is no material on record or scanty material to discard the plea. Thus, the aforesaid submission being unacceptable, are hereby repelled."

¶74

From the argument put-forward by learned counsel for the appellant and from the law propounded by Hon'ble Apex Court, it can be inferred that self defence cannot be based on speculation or mere surmises and facts are to be proved by the accused-appellant from the witnesses produced by the prosecution or by adducing evidence in this regard. In the present matter, self defence has not been raised by the

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appellant in the statement under Section 313 Cr.P.C. and not a single point has been put to the witnesses regarding self defence rather PW-1 for the first time at the fag end of his examination-in-chief stated that deceased Vijay Kumar hit the head of Dauji at the time when he was inflicting injuries by knife. During the cross-examination, it has been stated by this witness that when he reached on the spot, bottle was in the hand of the deceased and blood was coming out from the head of the appellant but he did not saw the deceased hitting the appellant. This fact is being considered by the trial court and came to the conclusion that even if the point of self defence is being accepted then it can be said that self defence is being exceeded by the appellant. It has been observed by the trial court that prosecution has failed to give the exact account regarding the injury of the appellant and it is not being proved by the prosecution as to what point of time this injury has been inflicted upon the deceased whether deceased inflicted first injury then appellant acted in self defence or during the course of incident deceased inflicted the injury by bottle after receiving some of the injuries by knife from the appellant. On the basis of above, the trial court did not convict the appellant under Section 302 IPC rather convicted him under Section 304 (1) IPC.

¶77

At no point of time it has been asserted by the appellant that he was also injured in the incident. No FIR in this regard has been lodged. No medical examination has been claimed from the side of defence. It is also not clear as to what was the nature of injury that was caused to the appellant and in the absence of all these facts it cannot be ascertained as to what type of self defence was available to the appellant. As has observed by the trial court that appellant exceeded the self defence is a right observation and this Court does not find any ground to interfere in that. Certain other minor points were also to be considered before parting.

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The argument of learned counsel that as per statement of witnesses injuries were also inflicted upon the neck by knife but there is no injury on the neck of the deceased. Argument of learned counsel is not tenable as from the ante mortem injuries it can be inferred that injury no. 8 was on the right side of neck.

¶80

The point of false implication is also being raised but same is also not liable to be accepted. Enmity could not be shown by appellant with the complainant. Suggestions are being made to the PW-3 that he is related to complainant and that is why he is deposing against the appellant but same was not accepted by the trial court and this Court is also of the view that by mere giving some suggestions, which were being denied by the witness it cannot be said that PW-3 is an interested witness due to relation with complainant. Some defence ought to have been given in reference to that or some admission ought to have been there by the witnesses but it is not so.

¶81

The defence of the appellant that he purchased a plot and was trying to make construction upon that and same is being obstructed by third person but defence side has utterly failed to prove any connection of the third person with the complainant or the eye-witnesses. The point of false implication is being ruled out and accordingly the case of the prosecution stands on a better footing when there is no reason for false implication then naming of the appellant in the FIR can be said to be correct and natural.

¶82

Trial court convicted the appellant under Section 304(1) IPC whereas this Court is of the view that conviction ought to have been made under Section 304(2) IPC.

¶83

There were nine injuries on the part of the deceased, out of which Injury Nos. 2, 3, 5 and 6 are skin deep incised wound. Injury Nos. 4 and 8 are muscle deep incised wound. Injury No. 9 is abrasion. All these injuries are simple in nature and could

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have been initially by the appellant just to detain the deceased from taking away the soda water. Injury Nos. 2 and 7 are serious injuries and are caused upon chest and could have caused the death of the deceased Vijay Kumar.

¶86

It is admitted fact that appellant was also hit by the deceased by a glass bottle and thereby causing injury upon his head, blood was also oozing from the head. Injuries of deceased coupled with injury of the appellant, it is possibility that injury to the appellant would have been inflicted, after minor injuries to the deceased those are Injury Nos. 2, 3, 4, 5 and 6 would have been caused and when appellant is being hit by the bottle, then he could have inflicted injury nos. 1 and 7. It is also clear that there was no premeditation and due to anger and some provocation altercation started when deceased was insisting for taking away the soft drink bottle, for which appellant was refusing. It is also in the FIR that appellant urged the words that deceased was posing to be 'Dada' and certain lesson is liable to be given to him. The fatal injuries would have been caused out of rage and fits caused due to altercation between the deceased and appellant. Appellant could not have visualized the injuries he was causing and he must not have in the knowledge that these injuries would cause the death of the deceased Vijay Kumar.

¶87

As defence side has failed to give the real count of injury of the appellant and it cannot be said that injury to the appellant was of such in nature so as to give him right of defence for causing the death of the deceased, the appellant exceeded his self defence but he was not aware of the fact that by the injuries he is causing to the deceased, deceased will succumb to injuries and accordingly this Court is of the view that appellant ought to have been convicted under Section 304 (2) IPC and to that extent appeal is liable to be allowed whereas so far as the conviction of appellant is concerned, appeal is liable to be dismissed.

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The appeal is partly allowed.

¶90

So far as the conviction is concerned that is maintained but quantum of punishment that has been awarded under Section 304 (1) IPC is altered to Section 304(2) IPC and appellant is convicted for five years of rigorous imprisonment alongwith fine of Rs. 2000/-. In case of default in payment of fine, appellant shall further undergo for six months rigorous imprisonment.

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Appellant is directed to surrender before the court concerned immediately.

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A certified copy of this judgment alongwith lower court record be sent back to the district court concerned for compliance and necessary action.

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Order Date :- 22.3.2018 Ranjeet Sahu

Dauji v. State

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Dauji v. State

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