Raj Kumar @ Rajesh Pandit vs State
2012 Latest Caselaw 1111 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                 Reserved on: 6th January, 2012
                                             Pronounced on: 17th February, 2012
+        CRL.A No.433/2011

         RAJ KUMAR @ RAJESH PANDIT        ....... APPELLANT
                      Through: Ms. Anu Narula, Advocate.

                     Versus

         STATE                                     ........ RESPONDENT
                            Through:    Mr. M.N. Dudeja, APP for the State.


         CORAM:
         HON'BLE MR. JUSTICE S. RAVINDRA BHAT
         HON'BLE MR. JUSTICE G. P. MITTAL

                               JUDGMENT

G.P. MITTAL, J.

1. The Appellant impugns a judgment dated 06.09.2010 and the order on sentence dated 10.09.2010 whereby the Appellant was convicted for the offence punishable under Section 302 of the Indian Penal Code (IPC) and was sentenced to undergo imprisonment for life with fine of ` 1,000/- and in default of payment of fine he was sentenced to undergo RI for one month.

2. On receipt of a wireless message from Lady Constable Sham Kaur (number 8040/PCR), a DD No.28-A dated 22-23.03.2009 was recorded in the Police Station (PS) Parliament Street at about 1:50 P.M. to the effect that screams of ‗Bachao-Bachao' could be heard from near Kothi number 48, Rakab Ganj Road and people were running here and there. The information was passed on to ASI Kapoor Singh (PW-9) who along with Constable Sanjay (PW-12) was present near Gurdwara Rakab Ganj,

as they were inquiring into an incident recorded through DD No.24-A, when they reached the park in front of Kothi No.18 they found one lady was crying, and they also saw that one fat person was beating a thin person with a brick. They noticed that the thin person had expired due to the injuries inflicted by the fat person i.e. the Appellant Raj Kumar.

3. SI Subash Chand (PW-1) also reached the spot. He recorded statement Ex.PW-1/A of ASI Kapoor Singh and sent the rukka to the Police Station through Constable Sanjay for registration of FIR. Inspector Suraj Bhan (PW21) was assigned further investigation of the case. He also reached the spot and conducted the inquest proceedings. The dead body was sent to the mortuary of RML Hospital. A concrete brick was recovered at the disclosure of the Appellant and sealed in a cloth parcel. Blood stained earth, earth control, the Appellant's bloodstained clothes, which he was wearing at the time of the incident, were all seized. On completion of the investigation, the report under Section 173 Cr.P.C. was forwarded to the Court of Metropolitan Magistrate for an offence under Section 302 IPC alleged to have been committed by the Appellant.

4. On Appellant's pleading not guilty to the charge, the prosecution examined 21 witnesses. PW-1 SI Subash Chand, PW-2 Dr. Vineet Pathak, PW-3 Dr. S.K.Naik, PW-9 ASI Kapoor Singh, PW-12 Constable Sanjay and PW-21 Inspector Suraj Bhan are the material witnesses.

5. The Appellant was examined under Section 313 Cr.P.C. in order to give him an opportunity to explain the incriminating evidence produced against him by the prosecution. He denied the prosecution's allegations and pleaded false implication. She did not produce any evidence in his defence.

6. We have heard Ms. Anu Narula, learned counsel for the Appellant, Mr. M.N. Dudeja, learned Additional Public Prosecutor for the State and have perused the record.

7. The learned counsel for the Appellant argued that the incident did not take place in the manner as alleged by the prosecution. The injuries on the deceased were not inflicted by the Appellant and he was implicated merely on suspicion. In the alternative, it was contended that even if it is established that the Appellant caused the injuries, the same were done in exercise of the right of the private defence for which the Appellant is protected under Section 100 of the IPC.

8. On the other hand, it is pleaded by Mr. M.N.Dudeja, learned APP for the State that the testimonies of PWs 9, 12, 15 and 17 (who are the eye witnesses to the incident) is cogent and convincing and fully establishes the prosecution's case. The plea of right of private defence, argues the learned APP for the State, was never raised by the Appellant during the trial and the same being an afterthought has to be rejected.

9. Before adverting to the respective contentions raised, we would refer to the evidence of the material witnesses.

10. ASI Kapoor Singh (PW-9) deposed that on the night intervening 22-

23.03.2009 he was posted as ASI at PP North Avenue, Police Station, Parliament Street. On that day at about 1:45 A.M. he and Constable Sanjay were present near Gurdwara Rakab Ganj regarding inquiry of DD No.24-A. The Duty Officer Police Station Parliament Street informed him through wireless that a cry of ‗Bachao-Bachao' was heard from near Kothi No.18, Rakab Ganj Road, New Delhi and people were running here and there. He along with Constable Sanjay reached in the park in front of Kothi No.18 on the official motor cycle number DL-1SN-3775.

He found a lady crying and one fat person (the Appellant) was beating a thin person (the deceased) with a brick. The thin person had died due to the injuries inflicted upon him. The witness deposed that in the meanwhile SI Subash Chand from PP North Avenue also reached the spot. On examining the dead body, he noticed injuries on the face and forehead. He made endorsement on the statement Ex.PW-1/A of SI Subash Chand and sent the rukka to the Police Station. The witness was put to lengthy cross-examination. He deposed that it took him five minutes to reach the spot after he received the wireless message. He stated that only a lady (the Appellant's wife) and two children were present inside the park. The Appellant and his family's articles were found present in the park. There was neither tent nor any hut to live in the park. The Appellant was wearing a cococola coloured T-shirt, one Bermuda shorts and a woolen cap. He deposed that there was a pod of blood near the dead body and a bamboo stick was lying at a distance of about 3 or 4 ft. from the dead body. Some blood was present on the bamboo stick. The witness denied the suggestion that he did not see the Appellant inflicting any injury on the deceased. He denied the suggestion that he had made a false statement to solve a blind case.

11. Constable Sanjay (PW-12) deposed that he reached the spot along with ASI Kapoor Singh and apprehended one person (the Appellant) who was inflicting injuries on another person with a brick. The victim had died by then. SI Subash Chand also reached the spot and recorded the statement of ASI Kapoor Singh. This witness was also subjected to a searching cross-examination but nothing could be elicited therein to discredit his testimony.

12. PW-15 Constable Girdhari deposed that during the night intervening 22-

23.03.2009 he was posted as a Constable in RAC 8th Battalion E

Company. He was on duty in Kothi No.18, Gurdwara Rakabganj Road allotted to Shri Sita Ram Singh, MP Lok Sabha. There was an NDMC park near the Kothi. The Appellant and his wife and two children used to sleep in the said park at night and he (the Appellant) used to sell ice- cream from a push cart near the park. The witness deposed that at about 12:45 A.M. he saw some sensation and saw some quarrel taking place; he informed the Guard Commander Raj Singh about the same. The place of his duty was at a distance of 50 yds. from the place where the quarrel took place. There was darkness in the corner from where the commotion was heard. A lady who was crying, came out from the darkness; she was identified as the Appellant's wife. Initially, the Guard Commander thought that the Appellant was killing a snake in the park. Thereafter they felt that there was some quarrel. This witness was allowed to be cross-examined by the learned APP for the State and he testified that he saw the Appellant giving blows with a stone like object to the victim. He admitted that the Appellant was nabbed by the two police officers who came on a motor cycle. This witness was also cross-examined at length. He denied the suggestion that he had deposed falsely.

13. PW-17 HC Raj Singh by and large corroborated PW-15's testimony.

14. PW-1 SI Subash Chand and PW-21 Inspector Suraj Bhan who carried out the initial and subsequent investigation respectively corroborated ASI Kapoor Singh's version.

15. PW-2 Dr. Vineet Pathak prepared the MLC of an unknown person, aged 25 years (the deceased) who was brought to the hospital by ASI Kapoor Singh. He proved MLC Ex.PW-2/A. This witness also medically examined Smt. Kiran, (the Appellant's wife). The doctor noticed a 2 cm long abrasion on the right ring finger and proved MLC Ex.PW-2/C.

16. PW-3 Dr. S.K.Naik, Assistant Professor, Department of Forensic Medicine, Lady Harding Medical College conducted autopsy on the deceased's dead body and noticed 14 injuries. The doctor opined the cause of death to be cranio cerebral injuries as a result of hard and blunt force trauma to the head. The injuries were ante-mortem in nature and cumulatively were sufficient to cause death in the ordinary course of nature. This witness also examined a solid bamboo stick 85.5 cm long (with 9 cm circumference) at the level of 2nd node and a concrete piece 20.5 cm x 16 cm x 6 cm. The witness opined that the injuries were possible with the alleged weapon of offence which was examined by him by his note Ex.PW-3/B.

17. ASI Kapoor Singh and Constable Sanjay's testimony has been corroborated by PW-15 and 17 regarding factum of infliction of injuries by the Appellant on the deceased. Nothing was elicited in their cross- examination which could discredit their testimonies.

18. It is argued by the learned counsel for the Appellant that police officers are always interested in the success of the case and their testimonies could not be relied upon to base a conviction in a serious offence like this unless their version is corroborated by independent evidence.

19. It is important to note that the incident took place at the dead of night.

No other witness could have been present in the park at that time. The testimony of two police officials (PW-9 and 12) were corroborated by PW-15 and 17 about the causing of injuries by the Appellant to the deceased. PW-15 and 17 are not from the local police and there was no reason for them to have falsely towed the line of the local police.

20. In the case of Karamjit Singh v. State, (2003) 5 SCC 291, it was held that the testimony of a police officer must be treated in the same manner as

the testimony of any other witness and there was no principle of law that their testimony cannot be relied upon without corroboration by an independent witnesses. There may be cases where testimony of a police officer needs a closer scrutiny. In the present case except for the bald statement that the witnesses have deposed falsely, nothing was brought on record to show that they had any reason to depose falsely or that they could have falsely implicated the Appellant to solve a blind murder case. It is established that the deceased died on account of the injuries suffered at the hands of the Appellant.

21. Now, the question for consideration is whether the injuries were caused in exercise of the right of private defence. Section 100 of the IPC lays down when a person is justified in causing death or any other harm to the assailant in exercise of right of private defence of body. It says:-

"Section 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.‖

22. The Full Bench of Orissa High Court in State of Orissa v. Rabindranath Dalai & Anr. 1973 Crl.L.J. 1686, observed that in a civilized society, the defence of person and property of every member thereof is the responsibility of the State. Consequently there is a duty cast on every person faced with apprehension of imminent danger of his person or property to seek aid of the machinery provided by the State. But if immediately such aid is not available, he has the right of private defence.

23. In Yeshwant Rao v. State of Madhya Pradesh, 1993 Supp. (1) SCC 520, the Appellant assaulted the deceased with a spade. The occurrence took place on the rear side of the Appellant's house, close to the latrine at about 10:00 P.M. Half an hour before the incident, Chhaya who was 15 years of age had gone to the house of the deceased to call him and for the same reason the deceased might have come to the house of the Appellant and with the consent of Chhaya was having sexual intercourse with her on the rear side of the house. The Sessions Judge found that at the same time the Appellant, who according to his own version, had returned at 9- 30 P.M. from Shahpur, went to the rear side of his house and then he might have seen the deceased Lakhan having sexual intercourse with his daughter and on seeing such an act being done, any father could easily have lost control and assaulted the deceased due to grave and sudden provocation.

24. The Supreme Court held that the foundation of the right of private defence was available from the earliest defence contained in the police

report filed as Annexure C lodged by the Appellant on April 5, 1985 and the case was fully covered by Section 96/97 read with Section 100 of the IPC.

25. In Darshan Singh v. State of Punjab & Anr. (2010) 2 SCC 333, the following ten principles were laid down as to the exercise of the right of private defence:-

―58. The following principles emerge on scrutiny of the following judgments:-

(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.

(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.

(iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.

(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.

(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.

(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.

(vii) It is well settled that even if the accused does not plead self- defence, it is open to consider such a plea if the same arises from the material on record.

(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.

(ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.

(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.‖

26. Similarly, in Babulal Bhagwan Khandare & Anr. v. State of Maharashtra, (2005) 10 SCC 404, it was held that it was not necessary to produce evidence in support of the plea of private defence. He can refer to the material and circumstances in prosecution evidence to establish such a plea. It was observed that the plea of private defence need not be established beyond reasonable doubt. It is enough to probablise the version. The Supreme Court held as under:-

".... 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 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 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. (See Munshi Ram. v. Delhi Administration AIR 1968 SC 702, State of Gujarat v. Bai Fatima,1975 CriLJ 1079 , State of U.P. v. Mohd. Musheer Khan, 1977 CriLJ 1897, and Mohinder Pal Jolly v. State of Punjab, 1979 CriLJ 584). Sections 100 to 101 define 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 there 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., 1979 CriLJ 323 , runs as follows:-

"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."

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.

―.....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 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 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 further reasonable apprehension......‖

27. Although it is not necessary that an accused must specifically plead 'self defence', he has to bring out material on the record on the basis of which he must show that the injuries were inflicted by him in the exercise of right of private defence. In this case, no suggestion was given to any of the prosecution witnesses as to the circumstances in which the injuries were inflicted by him (accused). He did not come out with his version in his examination under Section 313 Cr.P.C. Right of private defence for causing death extends to an accused where there is an assault with the intention of committing rape. Of course, that assault could be on the accused or anyone for whom he has a concern.

28. In Jangeer Singh & Ors. v. State of Rajasthan, (1998) 7 SCC 372, a plea of right of private defence was raised on behalf of the accused. It was held that it was not the case of the defence that the assault was made on Balvinder Kaur by the Jeet Singh (the deceased) with the intention to commit rape. No suggestion to that effect had been given to the prosecution witnesses. It was held that there could not be any right of private defence to cause death of Jeet Singh.

29. In this case, there is not even a suggestion that the deceased intended or attempted to commit any rape on Kiran, the Appellant's wife. There are no circumstances which could show that there was imminent danger of Kiran being raped.

30. During the hearing of the Appeal, we wanted to examine Kiran to reach the truth. She was summoned through IO of the case but her whereabouts could not be known despite best efforts of the IO. The Appellant also could not provide her whereabouts. We proceeded to examine the IO under Section 391 Cr.P.C. Inspector Suraj Bhan (PW-21) in reply to the Court questions deposed as under:-

―C.Q. Did you examine Kiran, wife of the appellant, during investigation?

                    A.     Yes, I did.

                    C.Q. When did you examine her?
                    A.    I examined her immediately on the date of the
                    incident.

C.Q. Did you try to find out the cause of the inflicting injuries on the deceased?

A. Yes, I tried to find-out the cause.

C.Q. What did Kiran, wife of the appellant tell you? A. She informed me that she was sleeping when the quarrel started; she woke-up when it was going-on. She stated that the deceased had attacked her husband - a fact told by him (the Appellant) to her. She also stated that the appellant told her that the deceased was bent towards her. This was the cause for the scuffle; she also told me that she tried to separate her husband from the deceased and suffered injuries.

C.Q. Did you try to verify Kiran's version from anyone? A. Yes, Kiran's version was tried to be verified from the Rajasthan Police guards but the same could not be verified.

C.Q. Can you give any reason why Kiran was not cited as a witness?

A. When we examined her under Section 161 Cr.PC, she told the facts. However, when we verified them, we found that she had lied in so far as the facts pertained to her husband, the appellant. Also, the other witnesses did not

corroborate her version and, therefore, I did not cite her as a witness.‖

31. Kiran's statement under Section 161 Cr.P.C. made to the IO is not admissible in evidence as she has not been produced. It may be argued for the defence that the investigation was not fairly conducted by the IO as Kiran was not cited as a witness. The Appellant had all the opportunity to examine the wife as a defence witness. At least, suggestion could have been given to the eye witnesses and particularly, the IO in respect of the defence version. Thus, even if it is assumed that the investigation was faulty, the Appellant would not be entitled to an acquittal on this sole ground.

32. Thus, there is no material on record to suggest that there was any attempt or even an intention to commit rape on Kiran and that the Appellant caused injuries on the deceased which proved fatal.

33. It is established beyond all reasonable doubt that the accused Appellant caused injuries to the deceased with a danda (Ex.P-1) and brick (Ex.P-2). The postmortem examination and PW-3's opinion shows that none of the injury individually was sufficient to cause death in the ordinary course of nature. It were all the 14 injuries taken together which were sufficient to cause death. The prosecution failed to even allege any motive to the Appellant to cause injuries to the deceased. In para 45 of the impugned judgment, the Trial Court held as under:-

―45. It is true that prosecution has failed to prove motive of the accused to commit murder of the deceased but that aspect is not fatal to the case of the prosecution. Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Sometimes, motive is surrounded in the mystery and it is very difficult to prove. If, however, the

evidence of the eye witness is credit worthy and can be believed, the question whether there is any motive or not becomes wholly irrelevant. Only in the disclosure statement of the accused, there is mention that deceased had tried to outrage modesty of his wife. Though there is no independent evidence on this aspect, possibility of the deceased to outrage modesty of the wife of the accused can't be ruled out, as there was no occasion for the deceased to remain present inside the park at odd hours alone particularly when he was found to have consumed liquor. Motive assumes greater significance only in circumstantial evidence.‖

34. The incident took place in the dead of the night in a park. The circumstances do show that the deceased could have molested or attempted to molest Kiran, the Appellant's wife. The Appellant used whatever was available near him i.e. danda and the brick to cause injuries to the deceased. The numbers of injuries caused were 14. As stated earlier, none of the injuries were individually sufficient to cause death in the ordinary course of nature. There was no premeditation. In the circumstances, it cannot be said that the injuries were caused by the Appellant with the intention of causing death. On the other hand, we are of the view that the Appellant can be attributed the knowledge that by his act, he was likely to cause the deceased's death. Thus, an offence under Section 302 IPC is not made out against the Appellant. We would convert the conviction under Section 302 IPC to one Section 304 Part-II IPC.

35. The Appellant's conviction under Section 302 IPC is altered to one under Section 304 Part II. The sentence of imprisonment for life is set aside. The Appellant in the peculiar facts of the case is sentenced to undergo Rigorous Imprisonment for four years and to pay a fine of ` 1000/- or in default to undergo Simple Imprisonment for one month.

36. The Appeal is allowed in above terms.

(G.P. MITTAL) JUDGE

(S. RAVINDRA BHAT) JUDGE FEBRUARY 17, 2012 vk