O. P. SHARMA, J. -
(1.) This appeal is directed against the judgment of learned Sessions Judge, Udhampur dated March 24, 1995 by virtue of which the appellant has been convicted and sentenced to imprisonment for life and to pay a fine of Rs. 500/- under Section 302 of Ranbir Penal Code. Mr. Bakshi, appearing for the appellant, argued that the prosecution has failed to prove the charge against the appellant because of the two versions of the occurrence. According to him, it is the admitted case of the prosecution that the occurrence was witnessed only by prosecution witnesses, namely, Sagar Singh, Shashipall and Raj Kumar. However, the presence of PW Sagar Singh on spot is excluded by both PWs Shashipall and Raj Kumar. So the statement of PW Sagar Singh, argued Mr. Bakshi, could not be believed.
He next argued that, according to PW Raj Kumar alias Raju, the deceased had challenged the accused/appellant to come out of his shop and the moment he came out, the former gave him a blow of 'Kahi' (an iron shod, agricultural implement of digging earth), which, however, missed the target. It was only at this stage that the appellant/accused struck the deceased with a 'Durat' (which is also an agricultural implement) which proved fatal. This version of the occurrence is, however, contrary to the evidence of prosecution-witnesses Sagar Singh and Shashipall who denied that the deceased was either in possession of 'Kahi' or ever attempted a blow of the same on the appellant/accused.
Since the prosecution neither declared PW Raj Kumar hostile nor cross-examined him, therefore, according to Mr. Bakshi, the appellant/accused has used force in exercise of right of private defence without taking undue advantage. He further argued that the right of private defence in this case has not been exceeded because the blow of 'Darat' was not aimed at any particular portion of the body of the deceased nor the assault was repeated. Mr. Bakshi also argued that assuming that the occurrence had taken place in the manner put forward by PW Shashipall, the conviction under Section 302, IPC is still bad because the offence was committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel which falls under Exception 4 to Section 300, RPC and the same would be punishable under Section 304(II), RPC.
Mr. Kakkar, the learned Government advocate, however, controverts the proposition put forward by Mr. Bakshi that there are two versions of the occurrence. According to him, the prosecution story is corroborated by the version given in the First Information Report. The trial Court, he argued, has appreciated the evidence and came to the conclusion that the appellant/accused was guilty of culpable homicide amounting to murder because the appellant/accused was the aggressor.
(2.) We have been taken through the evidence and find that there is much weight in the submissions made by Mr. Bakshi, both, with regard to the presence of PW Sagar Singh, brother of the deceased, and two versions of the occurrence. It is the emphatic statement of PW Shashipall that barring him and PW Raj Kumar, none else was present on spot at the time of occurrence. He also stated that it was only when they were running from the place of occurrence that he saw PW Sagar Singh approaching the place of occurrence. This fact was reiterated by him in his cross-examination also. Same is the statement of PW Raj Kumar also. However, assuming that Sagar Singh PW had also witnessed the occurrence from his statement read with that of Shashipall, the following conclusions can be drawn :- (i) that the occurrence had taken place outside the shop of the appellant/accused; and
(ii) that on being abused by the deceased, the appellant/accused gave him a fist blow when the latter was entering his shop. It is thus not disputed that there was as altercation followed by abuses and assault that ultimately led to the deceased being hit by a fatal blow. According to PW Raj Kumar, the deceased approached the appellant/accused
for replacing his wet clothes as it was raining. The altercation started when the appellant/accused refused to give him the trouser. On this the deceased challenged the appellant/accused to come out. The moment he came out of his shop, the deceased picked up a 'Kahi' and aimed its blow on the appellant/accused, which missed the target. Thereafter the appellant/accused struck him (deceased) with the 'Darat' which he was holding and the latter fell down unconscious. This version of the occurrence has not been challenged by the prosecution. So admittedly, there are two versions of the occurrence.
Now the question is, which one is to be believed? But assuming that the version given by PW Raj Kumar (Raju) is correct, the question arises, whether he (the appellant) was entitled to private defence after he had disarmed the deceased? This is because in his cross-examination, the witness has admitted that the appellant/accused gave a blow of 'Dharat' on the body of the deceased as a result of which the 'Kahi', the weapon carried by the deceased, fell down. It was thereafter that the appellant/accused struck him (deceased) with the 'Darat'. It is thus clear that the deceased had been disarmed with the first blow and there is nothing in the evidence of this witness to show that the deceased ever attempted to pick up the 'Kahi'. Had he done so, perhaps the appellant/accused might have been justified in giving him the blow to avoid danger to himself. But since the deceased did not even attempted to pick up the weapon (Kahi) there was no reason for the appellant/accused to have struck him with the fatal blow. It is settled law that right of private defence is preventive of defensive action and not retractive. In this case, it is neither defensive nor preventive and, therefore, he is not entitled to any right of private defence.
(3.) The next question is, what is the offence made out against the appellant/accused. As noticed above, the assault was without premeditation on a sudden fight. The possibility of deceased having given provocation cannot be entirely ruled out because he had no reason to get down from the bus when the village where he resided is a little ahead of the place of occurrence. But for his approaching the appellant/accused, the occurrence would not have taken place. So what actually transpired between the two has been suppressed to some extent. Nonetheless, even if we believe the other version of the occurrence in its entirety, Exception 4 to Section 300, IPC will be attracted. It reads as under :- "Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner."
All these ingredients are abundantly present in this case because the appellant/accused had neither taken undue advantage nor acted in a cruel manner in assaulting the deceased. There was no premeditation, as the fight was sudden and in the heat of passion upon a sudden quarrel. Moreover, the attack was not directed on any particular portion of the body of the deceased. It is unfortunate that the blow of 'Darat' landed on a vital portion of body of the deceased. But by this he can only be imputed with the knowledge that the injury was likely to cause death. We may, at this stage notice the injury found by PW Dr. T. R. Gupta which reads :
"1. An incised wound on Rt. side of the chest ball interiorily 1" above the nipple 41/2" x 11/2" with the herniation of the lung tissue (blood round present) extending from the lateral border of the sternum one inch below the angle of souis up to the anterior axillary fold (lower end).
2. IInd and IIIrd ribs at the contosternal angle out along with skin in below ... ....";