M.K. Chawla, J.
(1) Rajesh Kumar has challenged the Judgment of the learned lower court passed on 3rd September, 1984, holding him guilty u/s 302 Indian Penal
Code for causing the murder of Virender Singh and also u/s 324 Indian Penal Code for causing a simple injury with a sharp-edged weapon on the
person of Bhuvan Chand. On the same day, he was sentenced to undergo imprisonment for life Along with a fine of Rs. 500.00 , in default of
payment of which, he was required to undergo R.I. for one year for stabbing Bhuvan Chand u/s 324 Indian Penal Code Both the sentences of
imprisonment were, however, ordered to run concurrently.
(2) The facts in brief are that on 26th May, 1983, Raj Kumar nephew of the accused had picked up a quarrel with Virender Singh (deceased) and
Dhan Raj. On the following day, Virender Singh and Dhan Raj were seen sitting in the park by the complainant Kundan Singh. At about 9 P.M.,
Kundan Singh beard an exchange of hot words between Rajesh on the one side and Virender and Dhan Raj on the other. Kundan Singh rushed
there to pacify the warring groups. In the meantime, Bhuvan also reached there. Rajesh accused at that time proclaimed in a loud voice that he
would teach them a lesson for giving beating to Raj Kumar. When the scuffle between them started, Kundan Singh intervened and separated them.
Rajesh accused then left for his house in anger, while hurling abuses. With the intention to patch up the disputes, Kundan Singh, complainant Along
with Virender, Bhuvan and Dhan Raj, followed the accused to his house. Bhuvan was ahead of them all. The moment Bhuvan after climbing the
platform (chabutra) had reached the gate of the appellant''s house no. 105-D, Rajesh all of a sudden, came out armed with a knife and instantly
stabbed Bhuvan on his left leg. The accused then gave blows with the same knife on the chest of Virender and escaped with it, towards ganda
nallah. Both Bhuvan and Virender started bleeding. Virender had hardly retraced 4/5 steps when he fell down on the ground while holding his
chest. He was immediately put on a cot and was removed to his house from where his father rushed him to Hindu Rao Hospital. Bhuvan was also
removed to the Health Centre of the Delhi University by his father.
(3) At the hospital, Dr. G.K. Tandon examined Virender Singh. He found that there was no pulse, no heart sounds, no respiration and the pupils
were dilated and fixed. The patient was declared ""brought dead"", vide Mlc Ex. Public Witness IO/A.
(4) Constable Bishamber Singh was on duty at the Hindu Rao Hospital. He immediately conveyed the message on telephone to the Duty Officer in
Police Station Roshnara, that Shri Hoshiar Singh got his son admitted in the hospital, who has been declared brought dead and that some officer be
sent. This information was recorded at Seriall No. 21A in the Daily Diary Register. Public Witness -15 Tapraj Singh, Sub-Inspector had received
the message and immediately deputed Satya Parkash Sub Inspector for investigation. The Investigating Officer on receipt of this report reached the
place of occurrence and recorded the statement Ex. Public Witness 3/B of Kundan Singh. Underneath it, be made his endorsement and sent the
Ruqa to the Police Station on the basis of which Fir No. 243 (Ex. Public Witness 15/C) was registered at about 11.15 P.M.
(5) Bhuvan was first removed to Wus Health Centre, University of Delhi by his father at 9.40 P.M. where he was examined by Public Witness -6,
Dr. Gurdeep Singh. On local examination, he noticed a two inch long incised wound, muscle deep gapping on the anterior, lateral aspect of thigh
about six inch from the left anterior superior liliac spine. After preparing Mlc Ex. Public Witness 6/A, patient was referred to Hindu Rao Hospital.
On examination by Dr. Sudhir Malhotra at the Hindu Rao Hospital, the injury was described as simple vide endorsement Ex. Public Witness S/A.
(6) During the course of investigation, S.I. Satya Parkash took into possession the MLCs of Virender Singh deceased and Bhuvan Chand from the
hospital. The blood-stained pant of Bhuvan Chand was taken into possession vide memo Ex. Public Witness 2/A after it was converted into a
sealed packet. From the place of occurrence, the 1.0. lifted blood and control earth from 4 places, converted them into packets. A pair of chappal
belonging to the deceased was also converted into a sealed parcel. The 1.0. then prepared the site plan. Ex. Public Witness J6/B at the pointing
out of Kundan Singh and Dhan Raj. The scene of occurrence was also got photographed by Head Constable Mahipal Singh.
(7) Public Witness -11 Satya Parkash, the Investigating Officer, then conducted the Inquest proceedings by filling Inquest form Ex. Public Witness
I/A and got the dead body delivered to Constable Surinder Pal and Dalip for sending it to the Mortuary. On the next day, he received the post-
mortem report. The case property was then deposited in the Malkhana and later on was sent to the office of the C.F.S.L. In due course of time,
the reports of C.F.S.L. Ex. Pa, Pb and Pc were received.
(8) The accused after escaping from the scene of occurrence absconded. He could only be arrested on 25-6-1983 from village Jatpura, District
Bulandshahar, U.P., though he was a native of village Kalyanpur, District Aligarh. After the necessary investigation, the Sub Inspector filed the
charge sheet in the court.
(9) The accused in his statement u/s 313 Criminal Procedure Code . denied the prosecution case in toto. He, however, admitted his arrest on 25-
6-1983 from village Jatpura. He took the stand that the deceased and the prosecution witnesses were inimically deposed towards Raj Kumar, son
of his sister-in-law, who was residing with him at D-105, Reids Line, Delhi. These persons, according to him had pelted stones on the evening of
27th May, 1983 at his sisters house and broke window-panes. The plea was that a few of the stones had hit the inmates of the house. He further
stated that the deceased and his companions were drunk. He denied having caused any injury to Virender or Bhuvan. He examined Ranbir
Sharma, his sisters husband, in his defense.
(10) The learned lower court mainly relied upon the evidence of the eye-witnesses of the occurrence in basing the conviction. The Additional
Sessions Judge disbelieved the theory of pelting of stones as not only improbable but not even possible to have taken place before the incident.
Feeling aggrieved from the said finding, Rajesh has preferred this appeal.
(11) The main contention of the learned counsel for the appellant is that the accused acted in his right of private defense and the defense of the
property of his sister, when the deceased Along with his companions came together and pelted stones and broke window panes of the house. At
that point of time, feeling insecure, that they may not cause any harm to his person, he assaulted the deceased Virender Singh and caused injuries
to Bhuvan. While exercising the right of self-defense, he had no intention to doing more harm than was necessary. At the most, according to the
learned counsel, the accused can be said to have exceeded the right of private defense. He had no intention to cause such bodily injury to Virender
which would cause his death. The offence, it is urged, squarely falls u/s 304 part Ii, Indian Penal Code and not u/s 302 IPC.
(12) To substantiate his submission, learned counsel referred and relied upon the evidence of the eye-witnesses, and the photographer Head
Constable Mahipal Singh. On this aspect, Public Witness -5 Dhan Raj, while under crossexamination , stated that some children who were present
at the pulia (culvert) of the park, after coming to know about the incident bad reached quarter No. 105 and pelted stones, at about 12.30 in the
night breaking glass window panes. They had hardly pelted 2/3 stones but nobody was hurt. At that time, the police was also present. Public
Witness -II, however, admitted that windowpanes were broken and glass pieces were lying scattered there, when he reached the spot at about
1.15 A.M. to take the photographs from various angles. Besides these two witnesses, Kundan Singh denied having seen any- body pelting stones
at the house of the accused. Similarly, Bhuvan Chand denied the suggestion that anyone of them shouted, abused or pelted stones at the house of
the accused causing breakage of window panes. On the basis of this evidence, learned counsel wants the court to draw the inference that the
stones must have been thrown at the house of the accused by the deceased and his colleagues before they tried to enter the house. We are not
impressed by this argument. Such an inference cannot be drawn from the above evidence. At the most, it can be said on the scrutiny of that
evidence produced by the prosecution that there were few stones lying near the house of the accused and a few window panes were found
broken. But from this evidence, it cannot be said certainty that stones were thrown at the house before the actual incident.
(13) Learned counsel then read the evidence of DW-I Ranbir Sharma, brother-in-law of the accused. According to this witness, he bad been
residing in quarter No. D-105, Reids Line for the past 6/7 months. Narrating the incident, he deposed that on 27-5-83, when he returned from his
duty at 7 P.M., he took the tablet of Navalgin as at that time, he was not well due to severe headache. He went to bed inside the room, near the
windows. After about one or two hours, he heard the sound of stones being pelted on the walls, windows and doors of his quarter. In fact, one or
two stones bit his head after passing through the window panes. He immediately got up and while he was in the process of putting on his clothes,
he heard the abuses being hurled. When he came out, he saw the injured persons being removed.
(14) Learned counsel pointed out that Rambir Sharma has not at all been-cross-examined on this part of this story. That being so, according to the
learned counsel, his evidence must be held to be trustworthy, and cannot be brushed aside on mere conjectures. In this behalf, learned counsel for
the appellant relied upon the observations in a Judgment reported as Inder Singh and Surinder Singh v. Stale, 2nd (1978) I Delhi 633. The Division
Bench of this Court while going through the rules of practice as to the examination of a witness observed as under :-
THERE are two old rules of practice which must never be forgotten. First, the witness must be cross-examined on all parts of his testimony which
it is intended to dispute. Otherwise, what the witness has said in his examination-in-chief, will be accepted as being true. Second, the attention of
the witness must be drawn to any contradiction in his statement, or with any previous statement and he must be afforded an opportunity to explain.
If that is not done, no argument founded on the contradiction is permissible.
These rules are subject to certain exceptions and the court enumerated those exceptions as under :-
FAILURE to cross-examine, however, will not always amount to an acceptance of the witness'' testimony, e.g. if the witness has had noticed to
the contrary before hand or the story is itself of an incredible or romancing character or the abstention arises from mere motives of delicacy as
where young children are called as witnesses for their parents in divorce cases or when counsel indicates that he is merely abstaining from
convenience e.g. to save time. Where several witnesses are called to the same point, it is not always necessary to cross-examine them all. These
rules apply equally if not more strictly on the criminal side.
1. We have been taken through the cross-examination of Rambir Sharma and we do not find a single suggestion regarding the pelting of stones on
the quarter and the breaking of window panes. It was required of the prosecutor to have cross-examined this witness to contradict him in case the
prosecution was not accepting the version given in examination-in-chief. If his testimony is to be taken for granted, as is laid down in the above said
Judgment, then certainly the incident of pelting of stones must be held to have taken place before the accused stabbed Virender and Bhuvan. The
exceptions enumerated in Inder Singh''s case (supra) are not attracted. What is the effect of the unreliable defense version ? The submission is that
under these circumstances, i.e. pelting of stones prior to the occurrence, there was reasonable apprehension in the mind of the accused that the
assailants will cause him bodily injury.
(16) In similar circumstances, according to the learned counsel the Supreme Court in a Judgment reported as Yogindra Morarji v. State of Gujarat
1980 Cr.L.J. 459, converted the offence of murder u/s 302 Ipc to the one u/s 304 Part Ii, Indian Penal Code It was a case where the appellant
had some dispute about payment of wages with his labourers. When they demanded payment of their dues, the appellant refused to pay insisting
that nothing was due from him and Curtly asked them to quit the house. The labourers came out of the house but waited at a distance of 250 ft. At
about 9.30 P.M. when the appellant was going in a jeep, the labourers raised their arms signalling to the appellant to stop the vehicle. Some of the
companions of the labourers also came close to the jeep. On seeing these persons on the road, the appellant took out his revolver and fired three
shots one after the other. Two of those shots did not hit anybody but the third shot fired by the appellant hit Kana one of his employees in the
chest. The appellant then sped away in his vehicle. Kana was taken to the hospital and declared dead.
(17) The Sessions Judge found, that the version given by the accused that the labourers had blocked or barricaded the road and that his jeep had
been stoned and damaged, gave a reasonable apprehension in the mind of the accused that he would receive a grievous hurt at their hand. The
accused was justified in firing three shots in his right of private defense, it was held. The accused was given the benefit of doubt and acquitted. On
appeal by the State, the High Court held that apart from the bare statement of the appellant and the suggestions made by the defense to the
prosecution witnesses in cross-examination, there was not an iota of evidence on record to support the defense version had been concocted and
was false on material points and rejected the plea of private defense. However, the accused was convicted u/s 304 Part Ii, Indian Penal Code and
not u/s 302 as charged.
(18) In appeal, the Supreme Court observed :-
HELD(after reviewing the entire prosecution and defense evidence on record) that, though the material brought on the record is insufficient to
prove affirmatively the defense version that the jeep of the accused was pelted with stones and damaged, it does not establish a reasonable
possibility, falling short of a preponderating probability as to the existence of that fact. In the circumstances, the right of private defense of the body
accrued to the accused. As soon as two of the persons raised their hands to stop the jeep of the accused and then tried to follow and close on it, it
was not unreasonable for the accused to apprehend some physical harm at their hands. Therefore, u/s 101 Penal Code a right of private defense of
the body had accrued to the accused. But this was a case in which the accused has exceeded the right of private defense available to him u/s 101
Penal Code. Nevertheless, this was a circumstance which could be taken into account in mitigation of sentence.
For the foregoing reasons, the conviction of the appellant was upheld u/s 304 Part Ii, Indian Penal Code The learned counsel for the appellant
submits that the law laid down by the Supreme Court Judgment, fairly applies to the facts of the case in hand. According to him, even though the
evidence of pelting of stones was insufficient to prove affirmatively the defense version, but the circumstances were such which gave reasonable
apprehension in the mind of the appellant that in case he did not immediately exercise his right of private defense, he was likely to receive bodily
injuries. We agree with him that in the circumstances of the present case, culpable homicide cannot be held to be murder when the accused
exercised in good faith his right of private defense. It was not a case of premeditation. We hold that the accused, however, exceeded this right by
causing the death of Virender.
(19) No other point has been urged nor any requires going into.
(20) In the result, we accept the appeal and set aside the order of conviction and sentence u/s 302 Indian Penal Code and convert the same to the
one u/s 304 Part II. His conviction u/s 324 Indian Penal Code how- ever, is confirmed. The accused is in judicial custody since his arrest on 25th
June, 1983 i.e. a little less than 5 years. The ends of justice would be fully met if his sentence of imprisonment is reduced to the one already under-
gone on both counts. The accused is in jail. He be set at liberty at once if not required in any other case.