B.P. Singh, J.@mdashThis is an appeal against the judgment and order dated 9th February, 1979 passed by Sri. R.C. Gupta, III Additional District and Sessions Judge, Deoria in Sessions Trial No. 30 of 1976 (State v. Chandra Shekhar Tiwari and two Ors.) under Sections 302 and 302/34 IPC, P.S. Kaptanganj, District Deoria.
2. The case of the prosecution, as was unfolded in the evidence of Vishwanath Shukla (PW 3) and other witnesses, may briefly be stated as follows:
3. Dhruv Shukla, the deceased, was the real brother of Vishwanath Shukla (PW 3). Plots No. 483, 484 and 485 of Village Kusmha were owned and possessed by the deceased, Dhruv Shukla and his brothers. These plots were not demarcated inter se and formed one whole plot. Only one Nali for water passed through these plots. In the morning of 30-6-1976 the deceased was getting the above plots ploughed through two ploughmen, Akalu (PW 1) and Jhinnu (PW 2). Vishwanath Shukla (PW 3) was picking the grass nearby. The deceased was sitting upon the western boundary of the plots. At about 7.30 A.M. the Appellant, Chandra Shekhar Tiwari, armed with gun and accompanied by Pyare and Arvind reached there, Pyars and Arvind were armed with Lathis. The Appellant asked the deceased to stop ploughing of the plots. When the deceased questioned the Appellant as to why the ploughing should be stopped, Arvind and Pyare threatened him. While the matter was being discussed, the witnesses Ram Das, Bhikhari, Vishwanath and others came there. The deceased gave out that whosoever would win in the case would cultivate the crop The Appellant did not pay any attention and went near the ploughmen and asked them to stop ploughing the field. The deceased got up from the boundary and proceeded towards the Appellant. The Appellant fired a shot from his gun which hit the deceased. The deceased fell down and died instantaneously. Thereafter the Appellant and his two colleagues went away. A written report (Ex. Ka 1) of the occurrence was lodged by Vishwanath Shukla (PW 3) in P.S. Kaptanganj at 9.25 A.M. on the same day.
4. H.C. Chhotey Lal Varma, who was posted in P.S. Kaptanganj in June 1976, had received the written report (Ex. Ka. 1) from Vishwanath Shukla (PW 3) in P.S. Kaptanganj. at 9.25 A.M. and had prepared FIR (Ex, Ka. 2) and bad also made'' G.D. entry (Ex. Ka. 3) about the commission of the crime.
5. S.I. Laxmi Narain Chaturvedi (PW 6), who was posted in P.S. Kaptanganj in the year 1976, was present at the police station when this case was registered. He took over the investigation of the case and reached the scene of occurrence at about 11.15 A.M. He found the dead body of Dhruv Shukla lying in the plot of Raghav Tiwari. He deputed Bhairo Prasad Sharma and Some constables to go in search of the accused.
6. After calling the witnesses, the inquest proceedings were carried out by S.I. Laxmi Narain Ghaturvedi (PW 6). The relevant papers were prepared alongwith the Panchayat Nama and after sealing the dead body in a cloth the same was rent to the police mortuary for post mortem examination through constable Kundan'' Kumar Srivastava.
7. S.I. Bhairo Prasad Sharma had gone to the village Kusma and was informed that all the accused persons alorgwith the weapons were present inside their house. Bhairo Prasad Sharma (PW 8) went to the house of the Appellant and arrested the Appellant, Pyare and Arvind from inside the house. The gun (Material Ex. 4) was handed over by the Appellant to Bhairo Prasad Sharma (PW 8) and the gun was sealed by the Sub-Inspector under the memo Ex. Ka. 15.
8. Bhairo Prasad Sharma (PW 8) then returned to the place of occurrence and banded over the three accused and the recovered gun in sealed cover to the Investigating Officer, Sri.Laxmi Narain Chaturvedi.
9. After routine investigation a charge sheet (Ex. Ka 13) was submitted by Laxmi Narain Chaturvedi in the case.
10. All the three accused in the case pleaded not guilty and claimed to be tried.
11. At the trial the prosecution examined 8 witnesses i.e. Akalu (PW I), Jhlnnu (PW 2), Vishwanath Shukla (PW 3) Constable K.K. Srivastava (PW 4), H.C. Chotey Lal Verma (PW 5), S.I. Laxmi Narain Chaturvedi (PW 6), Dr. Madan Mohan Tripathi (PW 7) and S.I. Bhairo Prasad Sharma (PW 8) in the case. The accused examined Ganga Singh (DW 1) and Kauleshwar (DW 2) in their defence.
12. The learned Sessions Judge accepted the evidence of prosecution so far as it related to the Appellant, Chandra Shekhar Tiwari. Consequently, the Appellant, Chandra Shekhar Tiwari was convicted for having committed the offence punishable u/s 302 IPC and sentenced him to life imprisonment. The benefit of doubt was extended to the co-accused Pyare and Arvind.
13. Aggrieved by the judgment and order of the trial Court, Chandra Shekhar Tiwari has come in appeal.
14. We have heard learned Counsel for the Appellant and the Government Advocate at length.
15. Laxmi Narain Chaturvedi (PW 6), the I.O., has deposed about the various steps which were taken by him during the course of investigation. S.I. Bhairo Prasad Sharma (PW 8) has claimed to have arrested the Appellant and his two-co-accused and has also stated to have sealed the gun which was used in the occurrence. The constable K.K. Srivastava, had taken the dead body of Dhruv Shukla and had produced the same before Dr. Man Mohan Tripathi (PW 7). H.C. Chhotey Lal Varma has proved the FIR (Ex Ka 2) and the G.D. entry (Ex Ka 3) Dr. Man Mohan Tripathi (PW 7) had conducted the autopsy upon the dead body of Dhruv Shukla on 23-6-76 at 1.30 P.M. and had found the following ante motem Injuries upon the body.
Ante mortem injuries.
Gun shot wound of entry in an area of 4" x 3" in the left lower front part of the chest, 4" below the left nipple.
On internal examination, the left lowei part of the sternum and the 8th, 9th and 10th ribs were found fractured. A qadding piece and 22 pellets were recovered from the left pleural cavity. Tatooing was also present around the wound.
The post mortem report (Ex. Ka 14) was duly proved by Dr. Man Mohan Tripathi. In the opinion of the medical witness the injury was sufficient to cause death in the ordinary course of the nature and the death of the victim could have been caused at about 7.30 A.M. on 22-6-1976.
16. The evidence of the above mentioned witnesses is more or less of formal nature and has not been seriously challenged before us. The fact that Dhruv Shukla died on 22-6-76 at about 7.30 A.M. inside the plots in question has not been disputed as the case of the Appellant is of self defence.
17. The case of the prosecution regarding the main occurrence rests upon the evidence of Vishwanath Shukla (PW 3), Akalu (PW I) and Bhinnu (PW 2) Vishwanath Shukla (PW 3) has given the same account of the occurrence as was detailed by him in his FIR and both Akalu (PW 1) and Jhinnu (PW 2), who were the two ploughmen, have corroborated the evidence of Vishvanath Shukla (PW 3) regarding the main occurrence. They have also claimed that Vishwanath Shukla (PW 3) and the deceased were in actual physical possession over the plots in question from many years before the date of occurrence. On the other hand Ganga Singh (DW 1) has stated that on the day of the occurrence the deceased was ploughing the plots in question with the help of 3-4 ploughmen and 10-15 persons armed with Lathis and speers were also present there. He has also stated that Vishwanath Shukla (PW 3) was not there and after staying about 21/2 minutes near the plots in question he had gone back to his house. Kaulshwar (DW 2) has stated that the plots, over which there was dispute between Vishwanath Shukla (PW 3) and the Appellant, was in possession of the Appellant.
18. A number of documents were also filed in the case on the question of title and possesion of the disputed plots.
19. We have through the evidence on record in the light of the arguments advanced at the Bar.
20. We may point out at the very outset that the Sessions Judge had considered the question as to who was in possession over the plots in question on the date of the occurrence in great detial and has referred to all the documents on the record as well as oral evidence of the parties. After elaborate discussion the learned Sessions Judge has come to the conclusion that the Appellant was in possession of the plots in question. The relevant observations are on pages 28 and 29 of the Paper Book and are quoted as under:
The oral evidence thus also establishes possession of the accused, Chandra Shekhar Tiwari over plots Nos. 483, 484 and 485. Hence after careful scrutiny of oral and documentary evidence adduced by the prosecution and the accused, I am of the opinion that the accused Chandra Shekhar Tiwari, was in possession over plots Nos. 483, 484 and 485 prior to the date of occurrence.
21. We agree with the above finding recorded by the Sessions Judge. The above finding has not been challenged before us by the learned Counsel for the State and for this reason we need not discuss the oral and documentary evidence on the question of possession. It is enough to state that we agree with the conclusion recorded by the Sessions Judge on the point that there was overwhelming documentary evidence on the record to prove that the Appellant, Chandra Shekhar Tiwari, was in possession over plots Nos. 483, 484 and 485 on the date of the occurrence.
22. Now we come to the question If the Appellant was guilty of the offence of murder of while firing upon the deceased be was acting in the exercise of his right of private defence of person and property.
23. The Supreme Court, In the case of
The Code excepts from the operation of its penal clauses large classes of acts done in good faith for the purpose of repelling unlawful aggression but this right has been regulated and circumscribed by several principles and limitations. The most salient of them concerned the defence of body are as under:
Firstly, there is no right of private defence against an act which is not in itself an offence under the Code; Secondly, the right commences as soon as-and not before-a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is coterminous with the duration of such apprehension (Section 102). That is to say. right avails only against a danger imminent, present and real ; Thirdly, it is a defensive and not punitive or retributive right. Consequently, in no case the extends to the inflicting of more harm than it is necessary to inflict for the purpose of the defence. (Section 99). In other words, the injury which is inflicted by the person exercising the right would be commensurate with the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith, to weigh "with golden scales" what maximum amount of force is necessary to keep within the right. Every reasonable allowance should be made for the bona fide defender "if he with the instinct of self-preservation strong upon him, pursues his defence a little further than may be strictly necessary in the circumstances to avert the attack." It would be wholly unrealistic to expect of a person under assault, to modulate his defence step by step according to the attack. Fourthly, the right extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of Section 100 For our purpose, only the first two clauses of Section 100 are relevant. The combined effect of these two clauses is that taking the life of the assailant would be justified on the plea of private defence; if the assault causes reasonable apprehension of death or grievous hurt to the person exercising the right. In other words, a person who Is in imminent and reasonable danger of losing his life or limb may in the exercise of right of self defence Inflict any harm, even extending to death on his assailant either when the assault is attempted or directly threatened. This principle is also subject to the preceding rule that the harm or death Inflicted to avert the danger is not substantially disproportionate to and incommensurate with the quality and character of the perilous act or threat intended to be repelled. Fifthly, there must be no safe or reasonable mode of escape by retreat, for the person confronted with an impending peril to life or of grave bodily harm, except by Inflicting death on the assailant. Sixthly, the right being in essence, a defensive right, does not accrue and avail where there is "time to have recourse to the protection of the public authorities."(Section 99).
The Supreme Court, in the above cited case, has also the occasion to consider the principles governing the burden of proof when a plea of private defence is raised by and accused in a criminal trial. The Supreme Court has observed as follows:
Before coming to the facts of the instant case, the principles governing the burden of proof where the accused sets up a plea of private defence may also be seen. Section 105, Evidence Act, enacts an exception to the general rule whereby in a criminal trial the burden of proving everything necessary to establish the charge against the accused beyond reasonable doubt, rests on the prosecution, According to the section, the burden of proving the extence of circumstances bringing the case within any of the General Exceptions In the Indian Penal Code; or within any special exception or proviso contained in any other part of the Code or in any other law, shall be on the accused person, and the Court shall presume the absence of such circumstances. But this section does not neutralise or shift the general burden that lies on the prosecution to prove beyond reasonable doubt all the ingredients of the offence with which the accused stand charged. Therefore, where the charge about the accused is one of culpable homicide, the prosecution must prove beyond alt manner of reasonable doubt that the accused caused the death with the requisite knowledge or intention described in Section 299 of the Penal Code. It is only after the prosecution so discharges its initial traditional burden establishing the complicity of the accused, that the question whether or not the accused had acted in the exercise of his right of private defence, arises. As pointed out by the Court in
The material before the Court to establish such a preponderance of probability in favour of the defence pleas may consist of oral or documentary evidence, admissions appearing in evidence led by the prosecution or elicited from prosecution witnesses in cross-examination presumptions, and the statement of the accused recorded u/s 313 of the Code of Criminal Procedure, 1973.
24. On the question of burden of proof the majority view in the full bench case of
The Majority decision in
25. In the present ease the Appellant was in possession over the plots which were being ploughed by the ploughmen of the deceased. The deceased was also present and, though blind, was supervising the work. When the Appellant was in possession of the plots in question, it was highly unlikely and almost Impossible that the deceased, a blind man, would go to plough the said plots with the help of the innocent ploughmen and without taking the precaution to meet the resistance which was only natural from the side of the Appellant. A man is not expected to surrender his possession over the plots regarding which litigation is going on for some time with his adversaries especially when the Courts of law have upheld his possession. Even the law does not require a man, who is ia possession of his immovable property, to run away If he finds his adversaries ploughing the plots without any right. He is expected to put some resistance and the law no where requires that he must run to the authorities without trying to persuade the alleged trespassers to leave his plots. In the present case, admittedly, some portion of tbe plots had been ploughed by the ploughmen of the deceased when the Appellant had reached there and even the real brother of the deceased was nearby sit" ting in the same fields Who has ever heard of a blind villager going to take possession over some plots in respect of which litigation was going on with his adversaries without mobilising enough man power to deal with the resistance which the adversary was likely to put up. In this background the statement of the Appellant that there were 8-10 persons armed with Lathis and spears and that when he bad asked the deceased not to plough his field, those armed persons had proceeded towards hira and were weilding their arms, cannot be brushed aside lightly. In such a situation the Appellant was bound to take recourse to use the only arm which he possessed i.e, the gun in question. The Appellant had gone armed with the gun of his sister-in-law. Under such circumstances it is not possible to judge the real intentions of the persons who are armed with spears and Lathis and are there to help the adversary in his attempt to regain the forcible possession over the plots.
26. The contention of the learned Counsel for the Appellant that the Appellant had a reasonable apprehension that grievous hurt would be caused to him unless he had used the in his defence, has force. Of course it is true that the right of provite defence of properly alone extending to causing death was not available to the Appellant as the offence of tresspass is not covered by the previsions of Section 103 of the IPC But while the Appellant had gone to exercise his right of private defence of property, the circumstances developed to the extent that the right of defence of the person became available to him and when there was apprehension that grievous hurt would be caused to him the appellact was justified in firing upon the aggressors and if the shot resulted in the death of deceased, Dhruv Shukla, the Appellant cannot be saddled with the liability of murder.
27. Under these circumstances we conclude that the Appellant was acting in exercise of his right of private defence of person and as such he was not guilty of offence with which he is charged with.
28. The appeal is allowed The conviction of the Appellant for the offence punishable u/s 302 IPC is hereby set aside The Appellant is on bail. He need not surrender. His bail bonds are cancelled and the sureties are discharged.
