VAGHRI MAGAN JAKSHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The next question is: what is the impact of this blow given by deceased to the accused No. 1 initially ? Mr. D. K. Shah the learned advocate appearing for the accused No. 1 invoked the shell-known principle of appreciation of evidence and urged that when the interested prosecution witnesses did not offer any explanation of the comparatively notable injury on the head of the accused No. 1 the theory of selfdefence stands probabilised. As far as the abstract principle goes Mr. D. K. Shah is eminently right in his submission. However it is difficult for us to accept the submission that wherever an injury to the accused stands unexplained an inescapable or reasonable or probable inference about the subsequent injury by the accused was by way of self-defence would arise. The Infraction of the injury by a victim can reasonably lead us to two possible inferences. One inference may be that the man who was given the blow got annoyed and provoked and what he did subsequently might may be by way of provocation. If there are other attendant circumstances to show that the recipient of the first blow Namely the accused apprehended repetition of the blow then his subsequent counter action may be by way of self-defence. Let us visualise the circumstances in this case and decide whether the accused No. 1 can be said to have acted in the exercise of private defence of his body. At this stage we reiterate that it is not necessary for the accused to specifically plead self-defence. As late as in the year 1969-70 the Supreme Court in the case of Gottipulla Venkata Siva Subbravanam & Ors. v. The State of Andhra Pradesh & Anr. A. I. R. 1970 S. C. 1079 had laid down the law that even if the accused has specifically pleaded the defence of alibi the court is duty bound to examine the probable case of self-defence by viewing the evidence as a whole.

(2.) The first principle of law applicable in this situation is that it is for the party seeking the benefit of the exception to make it good. We are not oblivious of the fact that onus on the accused to establish presence of an exception is only of establishing preponderance of probabilities as against the onus on the prosecution to establish the guilt beyond the shadow of reasonable doubt. However in this case there is nothing to suggest much less reasonably to indicate that there was any further apprehension on the part of the accused No. 1 about the next attack from the deceased. As the circumstances show soon there were persons of both the sides present on both the sides. Actually in this case the injuries are sustained by some of the prosecution witnesses and they are attributed to the other accused. It is therefore difficult for us to hold that the blow into the chest of the deceased was resorted to by the accused No. 1 as a matter of self-defence. We do not rule out the possibility of such a case being made out but unfortunately no material has been elicited on the record to warrant such an inference.

(3.) The next question is as what offence the accused No. 1 can be said to have committed. We have already held above that it was the deceased who without any just cause administered the stick blow on the bead of the accused No. 1. Any ran in place of the accused No. 1 would feel gravely provoked because of the sudden and uncalled for attach: on him. We therefore are inclined to hold that the deceased had given grave and sudden provocation to the accused No. 1 who at the spur of the moment indicted the unfortunate blow on the best of the deceased. The provocation in our view can be said to be both grave and sudden and exception I to sec. 300 stands altercated. There is another possibility also of the exception No. 4 being attracted. The incident had unfortunately been triggered off by the exchange of hot words between the parties. The presence of the other people there seems to have augmented the tenseness of the situation. So the accused No. 1 can he said to have indicted the injury in question in the course of the sudden quarrel without any premeditation and in a sudden fight in the heat of passion. The accused No. 1 cannot be said to have taken any undue advantage nor can he be said to have acted in cruel or unusual manner because only to blows are attributed to him and the second one is comparatively far less serious it being an incised wound only on the upper right arm. So the exception 4 also can likewise be said to be attracted to the facts of this case. Appeal partly allowed: Conviction change to sec. 304-11. P. Code.