REHMAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) These two appeals one from jail and the other represented one are directed against the judgment dated 13 -8 -1975 of the learned Addl. Sessions Judge No. 2 Alwar whereby he convicted the accused -appellant under Sec. 307 I.P.C. and sentenced him to rigorous imprisonment for seven years and a fine of Rs. 500/ - and in default of payment of fine to further undergo rigorous imprisonment for 3 months. Tersely speaking the prosecution case, as disclosed at the trial, is that on April 1, 1974 PW. 1 Bambu and his son PW. 2 Prabhati were weeding the grass out of the crop in their field. At that time the appellant in the company of 5 others (acquitted by the trial court) after being armed with farsis and other deadly weapons formed an unlawful assembly, came on the scene of occurrence to take revenge of old enmity. The prosecution case further is that accused appellant inflicted a number of blows on Bambu and Prabhati. Accused inflicted lathi blows. This incident was witnessed by Chiranji and Matoli. The two injured persons Bambu and Prabhati were admitted as indoor patients in the Government dispensary at Ramgarh. Both of them were clinically examined by PW 9 Dr. S.K. Sharma. The injury report of Bambu is Ex. P/13 and the injury report of Prabhati is Ex. P/14. The first information report of this occurrence Ex. P/1 was lodged at the police station at Ramgarh, on the same day at 10 a.m. The distance between the police station and the place of occurrence is about 4 miles. The police after usual investigation submitted a challan against three accused namely Rehman Lila and Johar Ali. The learned Magistrate after perusing the record, took cognizance against the remaining three accused namely Labu, Rustam and Dalmor and ultimately after commitment all the 6 accused were tried by the learned Addl. Sessions Judge No. 2 Alwar, for attempting to commit the murder of Prabhati and for causing injuries to Bambu. The accused pleaded not guilty to the charge. The prosecution examined 10 witnesses in support of their case out of whom PW 1 Bambu injured did not support the prosecution case and as such he was declared hostile to the prosecution P W. 2 Prabhati is the injured person PW 4 Matoli, and PW. 5 Sampat were examined as eye -witnesses of the occurrence. PW. 9 Dr. S.K. Sharma was examined to prove the injury reports of Prabhati and Bambu P.W. 3 Dr. D.R. Sharma was examined to prove the result of X ray examination. All the accused denied their complicity in the crime and examined 5 witnesses in their defence. DW 1 Dr. P.S. Agrawal was examined to prove the injuries of Rehman. The injury report of appellant Rehman is Ex. D.6 (sic) and Kamlu were examined to prove the case of self -defence set up by the accused -appellant. The learned Addl. Sessions Judge placing reliance on the statement of PW 2 Prabhati corroborated by the statement of PW 4 Matoli and the injury report and the statements of two doctors, held accused Rehman guilty of an offence punishable under Sec. 307 I.P.C. and sentenced him as mentioned above. However, he acquitted five other accused of the charge, levelled against them. Hence this appeal.

(2.) The learned counsel for the appellant. Mr. Sharma has contended that the prosecution has not come out with a correct version as to how the quarrel started. They failed to give reasonable explanation of the injuries sustained by the appellant Rehman. The trial court acquitted five other accused tried along with the appellant and on the statements of same witnesses the accused ought not to have been convicted. In any case, the entire prosecution case has become doubtful and on ultimate analysis it must be held that the prosecution has failed to bring home the charge to the appellant He further urged that as the conviction was based on the statements of interested witnesses, the accused is entitled to the benefit of the right of self -defence to person. Mr. Gupta appearing for the State urged that the injuries alleged to have been sustained by the appellant are superficial. If the accused wanted to place reliance on the plea of self defence, then he ought to have requested the learned Magistrate at the time of remand to get him medically examined. From the statement of Dr. P.S. Agrawal DW. 1 the duration of the injuries sustained has not been proved and there is nothing on record to hold that the accused sustained the injuries during the course of the same incident. He further urged that there are no sufficient grounds to interfere in the conviction and sentence awarded to appellant by the trial court.

(3.) I have given my anxious consideration to the rival contentions. As regards the effect of acquittal of the 5 other accused, it is sufficient to (sic) that as the State has not filed any appeal against their acquittal, I will proceed on the assumption that the prosecution allegations regarding participation of the 5 accused in the assault on the date of occurrence has not been substantiated and the account of the occurrence given by the injured witnesses as well as the eye -witnesses cannot be termed to be wholly true. The first information report Ex. P/1 was lodged at the police station within a short time of the occurrence. A perusal of the first information report shows that the name of the accused appellant has been mentioned therein and specific part has been assigned to him. It has also been mentioned that appellant Rehman inflicted Faris blows to Prabhati. Thus the first information report of this case lends considerable support to the statement of eye -witnesses as well as of the injured so far as inflicting of injuries to Prabhati by Rehman is concerned. No doubt PW 2 Prabhati has made certain exaggerations in his statement but certain contradictions and exaggerations do appear in the statements of truthful witnesses also Merely because there have been discrepancies and contradictions in narration and embellishment in inessential parts in the evidence of eye -witnesses even though there is impress of truth regarding one accused, it does not mean that the entire prosecution case has to be discarded. A close reading of the statement of PW 2 Prabhati shows that there is impress of truth so far as the part played by Rehman is concerned and is in conformity with the probabilities of the case. The trial court had the advantage of watching the demeanour of the witness. For good and sufficient reasons the court below has held that the statement of the injured is reliable so far as part played by Rehman appellant is concerned and it was further held that this part of the prosecution story finds corroboration from other evidence and I find no reason to hold otherwise. From the statements of PW 2 Prabhati, PW 4 Maroli and the medical evidence it stands proved beyond reasonable doubt that Prabhati sustained 22 injuries at the place and time alleged by the prosecution. Out of 22 injuries, four were sustained by Prabhati on his head. The trial court has held that the manner in which the assault was made leads to no other conclusion except that the appellant intended to cause the death of Prabhati. The learned Judge further held that injuries Nos. 1 to 4 were dangerous to life and were sufficient in the ordinary course of nature to cause death of the injured. Learned counsel for the appellant is correct in urging that at the time of arrest the Investigating Officer found certain injuries on the person of the accused as admitted Dy. P.W. 8 Durga Prasad in cross -examination. Besides that from the very beginning the accused had disclosed his defence and all the eye witnesses were cross -examined on the point that the quarrel was initiated by Prabhati, and his father. A perusal of Ex. P/11 recovery memo of the weapon produced by the accused shows that on the wooden part of weapon of offence three cuts were found. DW. 2 and DW 3 who have been shown as eye -witnesses of the occurrence at the time of submitting the challan have been produced by the accused in his defence. They have also stated that Prabhati initiated the quarrel. Above all this evidence, there is circumstantial evidence on record. The prosecution witnesses have admitted that the cart in which the accused came was being driven by his daughter. A man coming to pick up a quarrel and make a murderous assault is not expected to bring his daughter in the bullock cart. Thus a reasonable doubt is created as to how the quarrel started. In view of ratio -decidendi of the case Mehar Rai v/s. The State of Bihar, AIR 1968 Patna 1281, it can be said that by non explanation of the injuries of the accused by the prosecution witnesses the defence set up by the accused stands highly probabilised. However, the main point which arises on the basis of facts proved on record is whether the conviction of the accused -appellant for an offence under Sec. 307 IPC is justified. The finding of the facts mentioned above shows that right of self defence to person did arise in favour of the appellant but that right however could not justify the act of the accused -appellant in causing as many as 22 injuries. The right of private defence was limited one and it is not a right of retaliation. In the ordinary course of nature the cumulative effect of the injuries was likely to cause the death of Prabhati. From the fact that a number of blows were inflicted by the accused -appellant to Prabhati an inference follows that the appellant intended to cause death or at least intended to cause such injuries as would in the ordinary course of nature result in his death. In adopting this course the appellant would have been guilty under Sec. 307 IPC had there been no right of private de fence available to him. It seems such a right did exist and the case falls under Sec. 308 IPC. The conviction of the appellant under Sec. 307 IPC is altered to that under Sec. 308 IPC. In the result the appeal is partly allowed. The conviction of the appellant under Sec. 307 IPC is altered to Sec. 304 IPC and his sentence is reduced from 7 years' rigorous imprisonment and a fine of Rs. 500/ - to 4 years' rigorous imprisonment. It is however made clear that the appellant shall be entitled to the benefit of Sec. 428 Cr. PC 1973 and the period of detention, if any, undergone by him during the investigation, inquiry or trial, shall be set off against the term of imprisonment imposed on him by this Court.