Sheshreddi vs Police Station Officer
2012 Latest Caselaw 413 Bom

    apeal137.12                                           1                                           Judgment


                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                             NAGPUR BENCH, NAGPUR.




                                                                                                    
                                                                           
                              CRIMINAL APPEAL NO.137 OF 2012.


    Sheshreddi S/o. Gopireddi Changati,




                                                                          
    aged about 40 years, Occu.: Labour,  
    R/o. Ambapuram, Tah. Gurjala,
    District : Gallur (A.P.)
    (IN JAIL) At Central Prison, Nagpur.
                                                                                              ....APPELLANT.




                                                          
                                                 // VERSUS //


    The State of Maharashtra, through
                                     
    Police Station Officer, Police Station, 
                                    
    Adyal, District : Bhandara. 

                                                                                            ....RESPONDENT.
           


    --------------------------------------------------------------------------------------------------------------
        



    Mr. Sarang K. Kotwal,  Advocate for Appellant.  
    Ms.Kalyani Deshpande, Additional Public Prosecutor for Respondent / State. 
    --------------------------------------------------------------------------------------------------------------





                      CORAM:            M.L.TAHALIYANI, J.

                      DATED  :          NOVEMBER 30, 2012.


    ORAL JUDGMENT :

1. The appellant is convicted for the offence punishable under Section

304-I of the Indian Penal Code and is sentenced to suffer rigorous imprisonment

for a period of ten years and to pay a fine of Rs.five thousand by Additional

apeal137.12 2 Judgment

Sessions Judge, Bhandara by his judgment dated 22nd March, 2012 in Sessions

Trial No. 7 of 2010. The appellant was tried for the offence punishable under

Section 302 of the Indian Penal Code. The learned trial Judge has given benefit

of exception (2) to Section 300 of the Indian Penal Code to the appellant. The

learned trial Judge has accepted contention of the appellant that he acted in

private defence. However, the learned trial Judge was of the view that the

appellant had exceeded the right of private defence and therefore, the appellant

was found guilty of the offence punishable under Section 304-I of the Indian

Penal Code.

2. The prime question which arises for determination in the present

appeal is as to whether conviction of the appellant could have been based on the

extra-judicial confession which was a qualified admission of the fact in issue. It is

held by the trial Court that the appellant had inflicted iron pipe blows on the

head of the deceased. The trial Court has accepted the evidence of the

prosecution witnesses before whom the appellant had allegedly confessed to have

committed the offence. It is noted that the appellant, while admitting the act of

inflicting iron pipe blows on the deceased, had qualified his statement by adding

that he assaulted the deceased because the deceased had initiated the assault and

was trying to strangulate the appellant. The question which arises for

determination is, as to whether such a statement made by the appellant before

the witnesses could be treated to be a confession. Before this issue is considered,

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it will have to be determined as to whether the evidence of the prosecution

witnesses to the effect that the statement was made by the appellant before them

was acceptable or otherwise. For this purpose it is necessary to state, in brief, the

facts of the case and the evidence adduced by the prosecution.

3. The deceased was engaged in supplying labours and the appellant

was working as labour on the site of Gosekhurd Dam. The appellant has

temporary hut erected on the site itself where he was staying. It is the case of

prosecution that the work of supplying labour assigned to the deceased was

withdrawn for some reasons. The deceased suspected that his assignment has

been suspended due to the appellant's intervention.

4. The incident had occurred on 4th October, 2009 when the appellant

was in his hut. After cooking the food, the appellant and his co-workers were

about to have their meals. In the meantime, deceased Mulchand Moharkar came

there in a drunken condition. He started abusing Alaram who was also a labour.

Alaram left the place due to abuses hurled by the deceased. Thereafter the

deceased started abusing the appellant and accused him that the appellant was

responsible for suspension of assignment of the deceased. It is stated that the

deceased, all of a sudden, caught hold of the appellant by neck and there was a

scuffle between the duo. During the course of said scuffle the appellant lifted an

iron pipe lying nearby in the hut and inflicted three blows on head of the

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deceased. The deceased had fallen down. The appellant immediately went to

Site Supervisor Mr. Bhumesh Reddi. Mr. Bhumesh took him to the police station

and report of the appellant himself was recorded by the police. The investigation

started on recording of the first information report. The dead body was sent for

post mortem examination. The Medical Officer reported that there was extra

dural hematoma and that the cause of death was 'extra dural haemorrhage due

to trauma to skull'.

5.

It is the case of prosecution that the appellant stated before Mr.

Bhumesh Reddy that the deceased had visited his hut in drunken condition and

that there was quarrel between the deceased and the appellant and during said

quarrel the deceased had assaulted the appellant and therefore, the appellant had

inflicted blows on head of the deceased. The appellant was taken to P.W. No.5 Mr.

Vijay Ghanmode who was working as Site Engineer. P.W. 5 Vijay had called P.W. 2

Allaru Surendra who was Site Incharge. It is the case of prosecution that similar

statements were made by the appellant before the other two witnesses also.

6. During the course of investigation statements of the witnesses were

recorded. Spot panchnama was drawn. Incriminating articles were seized from

the spot. They were sent to Forensic Science Laboratory and after completion of

investigation chargesheet was submitted in the Court of law. As stated earlier, a

charge under Section 302 of the Indian Penal Code was framed against the

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appellant. The appellant, however, was found guilty of the offence punishable

under Section 304-I of the Indian Penal Code. It is also stated earlier that the

case of the prosecution is mainly based on the extra-judicial confession. The

learned trial Court has accepted that the appellant had confessed the crime. It

was held that the appellant had caused death of the deceased with intention to

cause his death or with intention to cause bodily injury which was sufficient to

cause death in ordinary course of the nature. The learned trial Judge, has,

however, given benefit of exception (2) to the appellant. Therefore, conviction is

under Section 304-I of the Indian Penal Code.

7. Whether the statements made by the appellant amounted to

confession or not needs to be examined in the present appeal. To give finding on

this crucial issue involved in the case, it is necessary to go through the evidence

of P.Ws.2, 5, and 10. The whole case of prosecution is based on the evidence of

these three witnesses. The cause of death is not disputed. Therefore, rest of the

evidence is not necessary to be discussed in the present judgment.

8. To begin with the evidence of P.W. 10 it may be stated here that P.W.

10 was working as Site Supervisor. He, therefore, new the appellant. According

to this witness, the appellant was looking after centring work of bridge on the site

of Gosekhurd Dam and deceased was working as Labour Contractor. The

appellant was staying in a temporary hut near the bridge. It is stated by this

apeal137.12 6 Judgment

witness that the incident had occurred about two years ago. It was around 11.30

p.m. The appellant had come to the room of P.W. 10 and informed him that the

deceased had come to room of the appellant in drunken condition and had

started quarreling with the appellant. It was also stated by P.W. 10 that the

appellant had stated before him that the appellant had assaulted the deceased by

means of iron pipe because deceased had assaulted him prior to the assault on

the part of the appellant. This witness took the appellant to the Manager Mr.

Vijay.

9. Mr. Vijay has been examined as P.W. 5. This witness in his evidence

has stated that on the night intervening 3rd October and 4th October, 2006 P.W. 10

Site Supervisor Mr.Bhumesh and the appellant came to his house at village

Kondha. P.W. 10 had narrated the incident to P.W. 5. P.W. 5, therefore, made

inquiries from the appellant who was present before him. The appellant told P.W.

5 that the deceased had assaulted him and had caught hold of his neck during the

course of assault. The appellant, therefore, had assaulted the deceased. P.W.5

intimated the Manager Surendra Reddy who told them to wait at the site camp.

After sometime P.W. 2 Surendra Reddy reached there. The appellant was taken to

Adyal Police Station and first information report given by the appellant was

recorded by the police.

10. P.W. 2 Allaru Surendra Reddy has corroborated the evidence of P.W.

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5. It is submitted by P.W. 2 that on the night intervening 3rd October, 2009 and 4th

October, 2009 he received a phone call from P.W. 5 who intimated him regarding

the incident in question. P.W. 2, therefore, reached the place of P.W. 5 where the

appellant was present. The appellant told P.W. 2 that the deceased had come to

assault the appellant with iron pipe and that the appellant had snatched the iron

pipe from the deceased and had inflicted blows on the deceased. In the result,

the deceased collapsed on the spot.

11.

If the evidence of these three witnesses is examined carefully it can

be said that the appellant had not made confession before either of the witnesses.

The appellant had made admission of certain facts. The admission made on the

part of the appellant did not amount to confession of the crime as a whole and

therefore, it cannot be termed as 'confession'. The confession has not been

defined in the Evidence Act. However, what amounts to confession has been

declared by various judgments of the Hon'ble Supreme Court. It will be sufficient

if two cases of the Hon'ble Supreme Court are referred in this regard. In the case

of Palvinder Kaur ..vs. State of Punjab, reported at 1953 Cri.L.J. 154 the Hon'ble

Supreme Court at paragraph 16 has said :

".... An admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession. A statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact, which if true, would negative the offence alleged to be confessed. In this view of the law the High Court was in error in treating the statement of Palvinder as the most important piece of evidence in support of the charge under s. 201, Penal Code...."

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The Hon'ble Supreme Court in another case, reported at 1966

Cri.L.J. 100 in the matter of Aghnoo Nagesia ..vs. Bihar State at para 12 has said :

"12. Shortly put, a confession may be defined as an admission of the offence by a person charged with the offence. A statement which contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which, if true, would negative the offence alleged to be

confessed. If an admission of an accused is to be used against him, the whole of it should be tendered in evidence and if part of the admission is exculpatory and part inculpatory, the prosecution is not at liberty to use in evidence the inculpatory

part only. See Hanumant Govind v. State of M.P. 1952 SCR 1991 at p. 1111: (AIR 1952 SC 343 at p. 350) and 1953 SCR 94 : (AIR 1952 SC 354). The accused is entitled to insist that

the entire admission including the exculpatory part must be tendered in evidence. But this principle is of no assistance to the accused where no part of his statement is self-exculpatory, and

the prosecution intends to use the whole of the statement against the accused."

As such the confession is the statement which is an admission of the

offence or admission of all the ingredients of offence with which the accused is

charged. The statement can be termed as 'confession' if the maker of the

statement admits in terms the offence or at any rate substantially all the facts

which constitute the offence. It was stated by the Privy Council in the case of

Pakala Narayana Swami's case, reported at 40 Cri.L.J. 1939 = AIR 1930 Privy

Council 37 that an admission of a gravely incriminating fact, even a conclusive

incriminating fact, is not of itself a confession.

12. In the present case, in first place, what is necessary to be examined

is whether the appellant had made a statement admitting the assault on his part

apeal137.12 9 Judgment

which resulted in injuries to head of the deceased. I have gone through the

judgment of the learned trial court and the evidence of prosecution witnesses.

The evidence of prosecution witnesses is not shattered anywhere during the

course of cross-examination and I do not find any reason to disbelieve the

evidence of P.Ws. 2, 5 and 10 that an admission was made by the appellant before

them that he had inflicted blows on the deceased. If one goes through cross-

examination of these three witnesses, what can be seen is that the emphasis of

the learned counsel for the appellant before the trial Court was to establish the

right of private defence.

13. The learned trial Court has, therefore, rightly accepted the evidence

of P.Ws.2, 5 and 10. The learned trial Court, however, committed error in holding

that the admission on the part of the appellant was confession. The learned trial

Court failed to take note of the fact that the admission made by the appellant

before all the three witnesses was qualified with rider that the appellant assaulted

the deceased because the deceased had been aggressor and there was danger to

the life of the appellant from the deceased.

14. P.W. 2, in fact, states in his evidence that it was stated by the

appellant before him that the deceased had come with iron pipe and had

attempted to assault the appellant and that the appellant had snatched the iron

pipe from the deceased and had assaulted the deceased by means of the same

iron pipe.

apeal137.12 10 Judgment

15. Since the statement made by the appellant did not amount to

confession of crime and also did not amount to confession of all the ingredients of

the offence punishable under Section 302 of the Indian Penal Code, the learned

trial Court could not have held that the appellant had made a confession. It was

purely an admission of the appellant of the fact that he had assaulted the

deceased. The appellant at the same time had qualified his admission by saying

that he had assaulted the deceased with a view to defend himself. As such the

appellant claimed to have acted in self defence. He did not admit that he had

exceeded his right of private defence. Therefore, it did not amount to confession

of the offence punishable under Section 304-I of the Indian Penal Code even.

16. The next question which may, therefore, arise for determination is

as to whether qualifying statement made by the appellant can be taken into

consideration to give benefit of private defence under Section 100 of the Indian

Penal Code. Ordinarily speaking the statement which did not amount to

admission and is included in the admission of fact which can be separated from

admission of fact proved against the appellant, cannot be proved by the appellant

on the basis of the evidence of the prosecution witnesses. Because it is hearsay

evidence. An admission can be proved under Section 21 of the Evidence Act. Rest

of the statements in ordinary sense made by the appellant amounted to hearsay

evidence. However, in the present case, the statement made by the appellant in

addition to admission is so closely connected with the admission that the

apeal137.12 11 Judgment

appellant can be given benefit of Section 6 of the Evidence Act. The doctrine of

res gastae which has become rule of evidence under Section 6 of the Evidence

Act, in my considered opinion, can be made applicable to the present set of facts.

17. Careful examination of the evidence of P.W. Nos. 2, 5 and 10 would

show that the appellant had immediately visited the hut of P.W. 10, P.W. 10 had

immediately taken the appellant to the house of P.W. 5 and P.W. 5 had

immediately called P.W.2. As such, there was no scope for the appellant to make

any fabrication or to introduce an afterthought. The statement made by the

appellant before all the three witnesses was part of the same transaction. If one

applies the test of unity and proximity it can be safely stated that second part of

the statement of the appellant was so united and so proximate to the first part of

the statement that it could not be separated from the first statement. In the

circumstances, in my considered opinion, the second part of the statement made

by the appellant could be relevant in view of the provisions of Section 6 of the

Evidence Act. The appellant therefore, can be allowed to prove his own

statement not amounting to admission in peculiar facts of the case.

18. Third question which arises for consideration is as to whether the

right of private defence was available to the appellant to cause death of the

deceased. Section 100 of the Indian Penal Code lays down the situations under

which right of private defence can extend to causing death. Section 100 of the

apeal137.12 12 Judgment

Indian Penal Code runs as under :

"100. When the right of private defence of the body extends to causing death. - The right of private defence of the body

extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely :-

First - Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault ;

Secondly. - Such an assault as may reasonably cause the

apprehension that grievous hurt will otherwise be the consequence of such assault ;

Thirdly. - An assault with the intention of committing rape ;

Fourthly.- An assault with the intention of gratifying unnatural

lust ;

Fifthly.- An assault with the intention of kidnapping or abducting;

Sixthly.- An assault with the intention of wrongfully confining a

person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release."

Present case, in my considered opinion, falls under clause 'secondly'

of Section 100 of the Indian Penal Code.

19. P.W. 2 has stated that the appellant had stated before him that the

deceased had visited hut of the appellant armed with iron pipe and had

attempted to assault the appellant. This statement of the appellant has been

taken into consideration by me as part of same transaction in which the appellant

apeal137.12 13 Judgment

had admitted to have assaulted the deceased. The deceased was in drunken

condition. In the circumstances, there was a reasonable cause for the appellant to

apprehend that grievous hurt would be the consequence of assault on the part of

the deceased if the appellant did not exercise right of private defence.

20. Therefore, in my view, the appellant was entitled to exercise his

right of private defence to the extent of causing death of the deceased. Section

96 of the Indian Penal Code states that nothing is an offence which is done in the

exercise of the right of private defence. Since the appellant has assaulted the

deceased in exercise of the right of private defence, he had committed no offence.

The learned trial Court has erred in holding that the right of private defence was

excessively exercised by the appellant. In my considered view, there was no

excess on the part of the appellant and he was within his right to cause death of

the deceased. He had, therefore, committed no offence. He is entitled to be

acquitted. Hence, I pass the following order.

            i)      The  Criminal Appeal is allowed.


            ii)     The   judgment   and   order   dated   22nd    March,   2012,   delivered   by 

learned Additional Sessions Judge, Bhandara in Sessions Trial No. 7 of 2010 is set aside.

iii) The appellant is acquitted of the offence punishable under Section 304-I of the Indian Penal Code.

apeal137.12 14 Judgment

iv) The appellant be released forthwith, if not required in any other case.

v) Fine, if paid, shall be refunded to the appellant.

The appeal, accordingly, stands disposed of.

JUDGE

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