KOLI GATOR SURA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Thus Mr. Shukla has proceeded to argue before us on the assumption that one stick blow was given by the appellant-accused No. 1 which hurt Karamshi on his head at about 12 noon on 27-7-63. He has however advanced tWo contentions before us. The first is that in the field bearing survey No. 25 belonging to the appellant there was standing Juwar crop and the deceased Karamshi had taken his cattle for grazing and in fact had caused damage to his crop. It was on hearing or com- ing to know about it that he went there and as he found Karamshi as also his cattle grazing in his field and thereby committing trespass and causing mischief he had every right to take or ask Karamshi to have his cattle taken to the cattle-pound and when he asked him to do so not only he refused but on the contrary began to beat him and it was that way that as he apprehended that he would cause grievous hurt or the like by reason of his having an iron-shod stick with him that he had in exercise of his right of private self defence given a blow with the stick that he had which hurt him on his head. He is therefore according to him completely exonerated of liablity for the injury caused to Karamshi on his head. Another contention made out by him is that now with the finding of the learned Sessions Judge that there was no common intention on the part of all the three accused to bring about the death of Karamshi and when the charge against him remains in respect of his having brought about his death by reason of an injury caused to him with a stick the liability or otherwise of the appellant would arise out of his own act alone. Since that act was in respect of only one injury by him with a stick though no doubt on his head but when the evidence led by the prose- cution shows that there were two injuries caused on the head of deceased Karamshi and when it is not clear from evidence as to which of the two blows brought about his death he can be attributed with the minimum intention or knowledge regarding his act and his liability cannot therefore be more than that of an offence of voluntarily causing hurt with a stick so as to be punishable under sec. 323 of the Indian Penal Code and not for an offence of murder under sec. 302 of the Indian Penal Code. Before we go to the first point raised by Mr. Shukla with regard to the exercise of the right of private defence we have first to find out as to for which offence in case we come to the conclusion that the plea of self-defence is not available or is not established he would be guilty of.

(2.) Now in respect of the main charge under sec. 302 read with sec. 34 of the Indian Penal Code against all the three accused with regard to the death of Karamshi it has been found by the learned Sessions Judge as not established and all of them are acquitted in respect of that charge. Thus there exists no case of common intention contemplated in sec. 34 of the Indian Penal Code shared by this appellant with any other persons and consequently the question of liability would obviously turn on the act indivi- dually committed by the appellant. It is amply established and even in respect of which there is no dispute that the appellant had an iron-shod stick and it was with that stick that he had given a blow which hurt Karamshi on his head in the noon of 27-7-63. That injury is taken as fatal by the learned Sessions Judge and it is that way that he is found guilty of an offence of murder of Karamshi. It was urged by the learned Assis- tant Govt. Pleader that the learned Sessions Judge has found that only one blow was on his head as in respect of the other blow on him in view of the medical evidence he has acquitted accused No. 2. While it is one thing to acquit a person in respect of any such act it is another to say that therefore there remained one injury and since it was caused by the appellant it being fatal he would be guilty under sec. 302 of the Indian Penal Code. We have first to examine as to how many injuries were found on his head and if they were two and the medical evidence is consistent in that respect it is obvious that the liability of the appellant cannot be as is sought to be made out by the learned Assistant Govt. Pleader and found by the learned Sessions Judge. The story in the first information report Ex. 5 was given by eye-witness Bhima at about 4-30 p. m. on that very day before the Police Patel and it clearly sets out that while this appellant had given one blow with a stick on the head of Karamshi one other blow with a stick was also given by his brother Jaga Sura-accused No. 2 which hurt him on his head. Bhima has also stated the same thing and that again finds support from another eye witness Sujan examined in the case. According to Sujans evidence while Gator Sura inflicted one stick blow on the head of Karamshi Jaga Sura inflicted a blow which hurt him above the eye of Karamshi and then Karamshi fell down on the ground. The third eye-witness is Pamu Versi of about 10 years of age. She is the daughter of the sister of Bhima and she has also given similar evidence in the case. Both these witnesses are however not so very clear as to on what side whether the right side or the left side the blows had fallen on Karamshi. The fact however remains that the case of prosecution as disclosed from the evidence of Bhima and others was about two blows given on the head of Karamshi one by the appellant and the other by accused No. 2. If we then turn to the evidence of Dr. Vaidya he does not say that the injury found on the head of Karamshi was a result of only one blow as thought by the learned Sessions Judge. According to him the injury noticed by him was possibly by one or two blows. Since it created doubt in his mind about the number of blows Karamshi had received on his head and as accused No. 2 was said to have given a blow on his forehead he came to be given the benefit of doubt in that respect. Now both blows were given by instrument like stick. Dr. Vaidyas evidence further shows that the swelling was 5 x 3 and it may be the result of two injuries as accord- ing to him the swelling of the two injuries might have connected each other. If the two injuries were just near each other they would result in only one swelling. In other words all along the case of the prosecution was and which also was borne out by the medical evidence that the injuries on the head of Karamshi were as a result of the two blows given on his head. The witnesses may not be able to say clearly as to on what side and what part of head those blows had fallen. At any rate it can be easily said that the injuries on head were as a result of two blows with sticks and at any rate the evidence does not rule out the same by establishing that only one blow was given on the head of Karamshi. In those circumstances after accused No. 2 has been acquitted of the charge it would hardly lie in the mouth of the prosecution now to say that the medical evidence tends to suggest about only one injury being caused on the head and that since that injury was caused by the appellant he must be held liable for the death resulting therefrom. Going further which of the two blows was fatal is in no way clear and obviously cannot be so clear for the reason that Dr. Vaidya has all along remained in a doubt as to whether the injury found on the head of Karamshi was as a result of one blow or two blows. Nor is it possible to make out as to on what particular part of the head the injury was caused by the appellant and the other by another person. When such is the position it cannot be said that it was by reason of the blow given by the appellant that the entire injury was caused and that alone brought about the death of Karamshi. The benefit arising out of such a doubtful position would obviously go to the accused in the circumstances of the case. The offence in that respect for which the appellant can be held responsible would be on the basis of the minimum intention actuating his act and thereby giving vise to his liability for the same. It was in this connection urged by Mr. Nanavati the learned Assistant Govt. Pleader appearing for the State that the appellant was armed with an iron-shod stick and that when he chose to give a blow with it on his head a very vital part of the body he should be taken to have intended to kill him and that in that event even if he had given one blow his act should be taken to have brought about his death as a result thereof so as to be liable for an offence under sec. 302 of the Indian Penal Code. It was also said that it is immaterial whether the other injury caused on the forehead contributed to his death. A blow with such an instrument on such a vital part of the body is in all probability likely to bring about his death and that in any view of the case according to him the offence for which he is liable would be one under sec. 302 of the Indian Penal Code. This argument lacks the appreciation of a very obvious fact that once the Court came to the conclusion that all the accused did not share any common intention to cause death of Karamshi the individual liability with regard to his individual act would arise. Besides it cannot be said on the evidence as it stands with any certainty that the blow given by the appellant was by itself so fatal as to bring about his death. It is possible that both the blows together may have a cumulative effect to result in his death. It may well be that a second blow which was alleged to have been given by another accused and which hurt deceased Karamshi on his forehead may have been fatal or had even accelerated or led to his death which one single blow may not have brought about his death. The ques- tion of intention to cause his death besides can be easily ruled out in the circumstances of this case as the quarrel was of a sudden nature arising out of the suspicion about the cattle of Karamshi having caused damage to the crop of the appellant in his field Besides they bore no enmity and no grudge whatever against each other. In no case therefore the argument of the learned Assistant Govt. Pleader can be accepted to say that the appellant intended to cause his death or intended to cause such bodily injury which was sufficient in the ordinary course of nature to cause his death. On the contrary in such circumstances when a person is said to have given one blow with a lathi on the head of the deceased it has been held in several cases that one can only impute knowledge that such an injury was likely to cause death and the offence would that way fail under sec. 304 Part II of the Indian Penal Code. In Chamru Budhwa v. State of Madhya Pradesh A. I. R. 1954 S. C. 652 the accused was found to have given one blow with a lathi on the head of the deceased and the Supreme Court held that when the fatal injury was inflicted by the accused on the head of the deceased by only one blow it could as well be that the act by which death was caused was not done with the inten- tion of causing death or of causing such bodily injury as was likely to cause death. That act appears to have been done with the knowledge that it was likely to cause death but without any intention to cause death or to cause such bodily injury as was likely to cause death within the meaning of Part II of sec. 304 of the Penal Code. In other case where a blow was given with a hockey stick on the head of the deceased the accused was found to be guilty by the Supreme Court in Willie (William) Slaney v. State of Madhya Pradesh A.I.R. 1956 S.C. 116 for the offence under second part of sec. 304 of the Indian Penal Code. More often it would depend on the force used as a single blow may or may not be sufficient to bring about his death. In the present case however we are not required to go so far for the obvious reason that it cannot be said to have been established beyond any reasonable doubt that it was the appellants blow which alone brought about the death of Karamshi so as to hold him liable for an offence under sec. 304 Part II much less for holding him liable under sec. 302 of the Indian Penal Code as urged by the learned Assistant Govt. Pleader before us. When it is not possible to 6nd out as to which of the two blows was fatal in absence of any common intention shared by him with any other person he can only be saddl- ed with the liability on the principle of attributing to him the minimum inten- tion or knowledge for the act committed by him. In fact we have taken a similar view very recently in case of Nasir v. State of Gujarat (Criminal Appeal No. 1091 of 1964) judgment whereof was delivered by us on 13 In that case we found that there were two blows given on the head of the deceased and the prosecution evidence established only one blow having been given with an axe by the accused-appellant. There were however two injuries on his head one of which an incised wound caused by an axe and the other also on head with a lathi stick and it was further found that it was not possible to say with certainty as to which of the two injuries found on his head was fatal. On an application of the principle of minimum liability arising out of attributing to him minimum intention or knowledge in respect of an injury caused on the head of the deceased the appellant was held liable for an offence of voluntarily caus- ing hurt with an axe under sec. 324 of the Indian Penal Code. The same principle can well govern the present case and the liability that way arising of the appellant for his act would be one for an offence of voluntarily causing hurt with any hard blunt substance like a stick. Ordinarily no doubt if the blow-was given with an ordinary stick on the head the liability would be one under sec. 323 of the Indian Penal Code. But we find that the stick used by the appellant in causing that injury on his head was a bamboo stick having an iron-shod. That iron-shod adds to the gravity of the weapon which otherwise would be a simple one and it is that way that we are inclined to hold it to be a dangerous one if used as a weapon for committing an offence. Section 324 of the Indian Penal Code refers to voluntarily causing hurt by means of any instrument of shooting stabbing or cutting or any instrument which if used as a weapon of offence is likely to cause death... A stick becomes a dangerous weapon by reason of its iron-shod at its top and when that part of a stick is used as an weapon of offence it is likely to cause death and that the offence committed with such an instrument would fall under sec. 324 of the Indian Penal Code. It can stand in line with other type of instru- ments referred to in sec. 324 or 326 of the Indian Penal Code. This aspect of the case is lost sight of by the learned Sessions Judge as he has proceeded on the basis that it was one blow and that it was that one blow given by the appellant which had proved fatal so that he can be liable under sec. 302 of the Indian Penal Code. We therefore alter that part of his finding and hold that the appellant would only be liable for an offence of voluntarily causing hurt with a dangerous weapon as to fall under sec. 324 of the Indian Penal Code.

(3.) The further question that arises to be considered is as to whether the appellant is exonerated from his liability of having caused injury on the head of deceased Karamshi on the plea of an exercise of the right of private self-defence under sec. 96 of the Indian Penal Code. In that respect it is hardly essential to show that the burden of proving the exercise of such a right falling within any of the general exceptions such as one under sec. 100 of the Indian Penal Code would obviously be on the appellant in view of sec. 105 of the Indian Evidence Act though no doubt the initial burden of establishing the causing of an injury to the deceased has got to be discharged by the prosecution. Sec. 105 of the Indian Evidence Act provides that when a person is accused of any offence the burden of proving the existence of circumstances bringing the case within any of the general Exceptions in the Indian Penal Code? or within any special exceptions or proviso contained in any other part of the same Code or in any law defining the offence is upon him and the Court shall presume the absence of such circumstances. Such burden of proof on the accused would be no more than that on a party in a civil proceed- ing as observed by the Supreme Court in Dahyabhai a. State of Gujarat A. I. R. 1964 S C. 1563. (V G. L. R. 911). The initial burden that lay on the prosecution is already established and inasmuch as the appellant is as already found hereabove liable for an offence under sec. 324 of the Indian Penal Code. That liability would however depend upon the proof or otherwise of the right claimed by the appellant. That right can be established either by leading any evidence in that respect or by reference to the circumstances disclosed from the evidence led by the prosecution in the case. The Court shall however presume the absence of such circumstances and it would therefore be entitled to find out whether the appellant has been able to show to the satisfaction of the Court that not only a right exist and that it has been so exercised so that the justi- fication for the act can be held as established having regard to the provisions contained in sec. 100 clause (2) and sec. 102 of the Indian Penal Code. It is then that by reason of sec. 96 of the Indian Penal Code that he would be exonerated from his liability for the act committed by him. the plea is said to be covered under clause (2) of sec. 100 of the Indian Penal Code. Sec. 100 of the Indian Penal Code says that the right of private defence of body extends 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 descriptions enumerated there below. The second clause relates to an assault as may reasonably cause appre- hension that grievous hurt will otherwise be the consequence of such assault .....Thus there must arise reasonable apprehension in his mind that he would be so assaulted as grievous hurt may be caused to him. That right commences as soon as reasonable apprehension of danger arises from an attempt or threat though offence may not have been committed and it continues as long as such apprehension of danger to his body continues as contemplated in sec. 102 of the Indian Penal Code. When such a right is justifiably exercised the law says that the act committed by him which is an offence in law would not be an offence it being done in the exercise of the right of private defence under sec. 96 of the Indian Penal Code. At the outset an attempt was made to suggest that the plea of right of defence of property was available under sec. 103 of the Indian Penal Code as well but it was not pressed and abandoned. It is in light of these provisions of law and having regard to the burden of proof being on the appellant that we have to consider the submissions made by Mr. Shukla the learned advocate for the appellant before us.