BHANWAR SINGH Vs. STATE

JUDGEMENT

(1.) THIS is an appeal by the accused Bhanwar Singh who has been convicted of an offence under sec. 304 I. P. C. and sentenced to rigo-rous imprisonment for six years.

(2.) THE case relates to an incident which took place between the night of the 25th and 26th April, 1950. THE accused Bhanwarsingh aged about 15 years and the deceased Amarsingh aged about 17 years, both students, were boarders in the Kisan Boarding House in Jodhpur City. It is said that their relations were somewhat strained although the precise reason for this state of affairs has not been clearly or satisfactorily brought out. On the fateful night at about 12-30 A. M. the deceased Amar Singh who was sleeping on the terrace of the Boarding House is said to have been stabbed by Bhanwarsingh with a knife, first in the back and a second time in the abdomen. P. W. 10 Jethusingh another student who was lying awake on his bed five or six paces away from Amarsingh saw the incident. Jethusingh rushed to catch hold of Bhanwarsingh, and it is said that Jethusingh also received an injury during the attempt on the palm of his right hand from the knife but he succeeded in snatching it away from Bhanwarsingh's hand. Amarsingh raised a cry that he had been stabbed with a knife. THEreupon Ramsingh, a first cousin of his, who also lived in the same Boarding House, on the ground floor and happened to be awake, ran to the scene of occurrence. Other students Karansingh, Dhanpatsingh and Kishensingh also hastend to the spot. All these persons then carried Amarsingh who was bleeding profusely, to the ground floor and thence they took him to the hospital. P. W. 15 Chimna-ram who was a teacher in charge of the Boarding House and who used to help the Superintendent Raghuveersingh in the management thereof was informed of the incident at about 1 A. M. during the same night as Raghuveersingh had gone away to Jaipur. Chimnaram made the first information report Ex. P-2 to the police at 10-45 A. M. on the 26th April, 1950. On 27. 4. 50, a dying declaration of Amarsingh (Ex. P-12) was recorded at about 5-30 P. M. by Mr. Chandrasingh, First Class City Magistrate, Jodhpur. Amarsingh stated therein that the accused Bhanwarsingh was his assailant and that he had struck Amarsingh with a knife. Amarsingh succumbed to his injuries on 29. 4. 50 at about 5 P. M. P. W. 5 Dr. Radhakrishna performed the post-mortem examination of the dead body of Amarsingh and found that there were two wounds on the person of Amarsingh : (1) a transverse stab wound on the stomach 3/4" X 1/4" and going deep in the abdominal cavity and (2) a stab wound on the left side of the back at the level of the 8th intercostal space, 1/2" X 3/4" and puncturing the plura. THE doctor was of opinion that both injuries were grievous and were caused by a sharp weapon and were individually sufficient to cause the death of the victim in the ordinary course of nature. After the usual police investigation, the accused was challaned in the court of the City Magistrate. Jodhpur, and was committed to the court of the learned Sessions Judge, Jodhpur, for his trial u/s 302 I. P. C. THE learned Sessions Judge has convicted and sentenced the accused as already stated above.

(3.) SEC. 105 of the Evidence Act provides that when a person is accused of an 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 exception 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. Learned Government Advocate therefore argued that the right of private' defence being an exception to the general law must have been pleaded by the accused at the proper time and that he should have satisfied the court affirmatively by his evidence that he was and is entitled to the benefit of the defence now sought to be raised by him. Learned Government Advocate further contended that as the accused had done nothing of the kind, this question could not be gone into, particularly in the stage of appeal, and must be rejected. I have given this matter my anxious consideration and am of opinion that sec. 105 of the Indian Evidence Act should not be so interpreted as to bar a court from considering a plea of self-defence even though not specifically pleaded where such a plea may arise on the facts and circumstances of a particular case. This appears to me to clearly follow from the cardinal principle of the administration of criminal justice that the burden of proving a case for the prosecution always rests upon the prosecution and never shifts to the accused, and it lies upon the prosecution to establish on the whole case and beyond reasonable doubt the guilt of the accused, and if there is any such reasonable doubt on the whole case, he is entitled to be acquitted. It follows, therefore, that notwithstanding the presumption raised under sec. 105 of the Evidence Act, the accused is entitled to receive the benefit of a general or special exception where a reasonable doubt arises on the whole case against him. It has thus been held that where a right of private defence was not specifically pleaded but the court on the evidence before it found that the accused had acted in the exercise of his right of private defence, the court Was bound to take cognisance of this fact. See Gulam Rasul vs. Emperor (1) (A. I. R. 1922 Lah. 314.), King Emperor vs. Kishenlal (2) (A. I. R. 1924 All. 645.), Janki Mahto vs. Emperor (3) (A. I. R. 1933 Pat. 568.), Gul Habib vs. Emperor (4) (158 I. C. 635.) and Nga Ba Sein vs. Emperor (5) (160 I. C. 463. ). There is also authority for the proposition that the plea of self-defence can be raised for the first time in an appeal if the facts on the record justify such a plea. See Ajudhia Prasad vs. Emperor (6) (A. I. R. 1925 All. 664.) and Nur Dad vs. Emperor (7) (Bhanwar Singh V The State (Modi, J.) I, therefore, hold that the failure of the accused to raise a plea of self-defence in the courts below does not and cannot bar him from raising this defence in this Court provided it is shown that the right of private defence arose on the facts and circumstances of this case. Indeed, the question resolves itself into one of fact in each particular case. Now so far as the facts of the present case are concerned, the evidence for the prosecution set out above does not show that Amarsingh gave any beating to the accused Bhanwarsingh before the latter fatally assaulted Amarsingh. Jethusingh was the most important witness on the side of the prosecution, who saw the stabbing himself. No question was at all put to him on this aspect of the case. This omission is, in my opinion, highly significant. It is true that a question was put to Ramsingh, Amarsingh's first cousin, whether he gave any lathi blow to Bhanwarsingh. To that question Ramsingh replied that he had aimed a blow at Bhanwarsingh who had already knifed his cousin Amarsingh, but Ramsingh added that he did not know whether that blow fell on Bhanwarsingh or not. It is quite possible that Ramsingh was not telling the whole truth when he said that he did not know whether his blow fell on Bhanwarsingh or not; but the fact remains that Bhanwarsingh had already assaulted Amarsingh before Ramsingh came on the spot. Even assuming that Ramsingh struck Bhanwarsingh with a lathi, that would, in my opinion, not afford any right of private defence to Bhanwarsingh as against Amarsingh. The accused Bhanwarsingh has made no mention of any circumstance in his statement before the learned Sessions Judge as to whether Amarsingh gave him any bearing whatsoever. In the court of the committing Magistrate, however, the accused did make a statement that he was beaten by lathies by Amarsingh, Ramsingh and Jethusingh, and that having received as many as 8 to 10 blows, he had run away, and, therefore, did not know what happened thereafter. Bhanwarsingh obviously meant by this statement that a beating had been given to him before the stabbing incident took place although for obvious reasons he did not admit that he had stabbed Amarsingh. Now, the version that Amarsingh, Ramsingh and Jethusingh had given lathi blows to the accused Bhanwarsingh, and during the course of the scuffle the latter put the knife into Amarsingh's body is, in my opinion, wholly absurd. It is extremely difficult to believe that while these three persons were armed with lathies on the one side, Bhanwarsingh, on the other, would or could have been in a position to strike Amarsingh with a knife. They were obviously older and stronger and should have been more than a match for Bhanwarsingh to permit him to put his knife into Amarsingh's body, or at any rate as grievously as he was able to do. The only other alternative might have been that Amarsingh, Ramsingh and Jethusingh had given a beating to Bhanwarsingh some time before the stabbing incident actually took place, and that the latter knifed Amarsingh in retaliation thereafter. Even so, I have no hesitation in arriving at the conclusion that the accused could claim no right of private defence in that state of circumstances. Bhanwarsingh then had ample time for recourse to the protection of the public authorities and cannot claim any right of self-defence. The statement of Chimnaram P. W. 15 clearly does not carry the matter any further because he merely repeated what Bhanwarsingh had stated to him next morning. Besides, the circumstance that Chimnaram consulted Shri Baldeoram, President of the Kisan Boarding House before making an actual report to the police and some time was taken in doing so, is not sufficient to cast any suspicion on the veracity of that report. It was only natural in the circumstances of the ease that Shri Baldeoram should have been consulted. There is nothing to suggest on the record that either Shri Baldeoram or Chimnaram entertained any prejudice or nursed any illfeeling against the accused. It is true that the prosecution has not satisfactorily brought out the circumstances which preceded the fatal assault on the deceased Amarsingh; but the incident happened at dead of night and practically all the main witnesses for the prosecution in this case are students, of young age, and immature minds, and perhaps not very observant or keen in recollection of events, and, therefore, if they have failed to relate the whole story in its details, I am not prepared on that score to hold that Bhanwarsingh acted in the exercise of his right of private defence in knifing Amarsingh. I may also point out that the solitary witness Gumansingh produced on behalf of the accused did not say a word about Bhanwarsingh having been beaten before the incident, and it is indeed remarkable that according to this witness it was Harikishen and not Bhanwarsingh who had struck Amarsingh with a knife.