- (1.) THE appellant, Rati Ram, has been convicted by the learned Sessions Judge, Alwar, under sec. 304, part one, of the Indian Penal Code, and sentenced to 7 years' rigorous imprisonment. THE prosecution story is as follows: -
(2.) ON the 7th of May, 1952, at about 5 in the evening, a bullock belonging to Khubi Jat of village Jadka, Police Station Kishangarh, Alwar District, got into the guara of Ram Sahai Jat of the same village. Rati Ram gave a lathi to the bullock, and drove it away. Khubi brought the bullock to his guara. . and tied it there. Soon after, Rati Ram, Ram Sahai, Chaju and Sunder Lal were approached by Khubi, who protested why his bullock was struck. This gave rise to an exchange of hot words between the parties, and Ram Sahai's party assaulted Khubi with lathis. Khubi raised an alarm, which brought Patram to the spot. Patram received some lathi blows at the hands of Ram Sahai's party. During the progress of the fight, Bobar deceased, a brother of Khubi, also came to the spot, and tried to stop the fight by entreating with folded hands. Unaffected by Bobar's entreaties, Rati Ram picked up a pharsi from a poli nearby, and inflicted belows on Bobar. Chaju and Sunder also dealt lathi blows on him. Bobar fell down unconscious, and shortly after he died. A report was lodged at the Police Station Kishangarh at about 4 A. M. on the 8th of May, 1952, and the deceased Bobar was also taken there in a bullock cart, and produced before the police. The Sub-Inspector Sher Singh, who was in charge of the Police Station, immediately proceeded to the spot, and prepared a site plan. He also sent the dead body of Bobar for post mortem examination. A pharsi was also taken possession of during investigation on the 10th of May, 1952, and is alleged to have been produced by Rati Ram. Rati Ram was arrested on the 10th of May, 1952, and the case was challaned under sec. 302 of the Indian Penal Code in the court of Extra Magistrate, Tijara, who committed him to the Court of Session at Alwar to take his trial under sec. 302 of the Indian Penal Code. The accused denied the charge. In the court of the committing Magistrate his plea was that Patram's bullock had strayed into his guara, but was driven away by his bullock. On this Khubi protested to Ram Sahai, which led Ram Sahai and Khubi to grapple with each other. Patram also came to the spot, and dealt a lathi blow to Ram Sahai, who fell down. The appellant himself, therefore, ran to the spot with a lathi and found Khubi, Patram and Bobar deceased on the scene of occurrence. There was a \laihi fight between the party of Khubi, Patram and Bobar on the one side and that of the appellant on the other, during which Khubi dealt a lathi blow to the head of the appellant, who fell down. Another lathi from Patram struck Bobar, who also fell down. Thus the case for the defence in the committing Magistrate's Court was that it was on account of a lathi blow from Patram that Bobar died. In the Court of Session, however, the appellant stated that he found his father Ram Sahai being beaten by Bobar, Khubi and Patram. The appellant asked them not to do so, whereupon Bobar hit him with a lathi on his head. Then he hit Bobar with a lathi in his self-defence, when the latter was going to give another lathi blow to the appellant. He said that he had made a false statement in Tijara court to the effect that it was Khubi who hit the appellant with a lathi. The learned Sessions Judge, after considering the evidence on the record, came to the conclusion that the appellant had given pharsi blow to Bobar who was unarmed, and caused a fatal injury to him. He disbelieved the defence of the appellant that he dealt a lathi blow to Bobar in his self-defence. He has come to the conclusion that it was not a case of murder but of culpable homicide not amounting to murder. Consequently, he has convicted the appellant under the first part of sec. 304 of the Indian Penal Code, and sentenced him to seven years rigorous imprisonment. Rati Ram has filed this appeal. I have heard the learned counsel for the appellant, and also the learned counsel for the State. It was argued by the learned counsel for the appellant that the prosecution evidence was altogether untrustworthy. In the first information report five witnesses, Chandra Khati, Chunia, Sukhia, Gopi and Durjan, were named as eye-witnesses, but only Durjan was produced. Chunia, Chandra Khati, Sukhia and Gopi were withheld without any reason, and in their place Chandra Jat and Bhika were produced, who have been found by the trial court to be unreliable witnesses. The prosecution case was that Rati Ram first dealt lathi blows, but death of Bobar, according to medical evidence, was caused by a sharp-edged weapon. Pharsi was, therefore, introduced at the time of the infliction of injuries on Bobar; but the prosecution has not satisfactorily explained how the lathi of Rati Ram, which he is admittedly said to have possessed in the previous stages of the fight, changed into a pharsi in the subsequent stages. It was also argued that even the Sessions Judge has not been able to hold that the fight took place where it is alleged by the prosecution, and he has assumed that it took place within the guari of the appellant. Under the circumstances, there was sufficient material on the record to support the defence version that injury was caused to Bobar by the appellant in the right of private defence of his person. On behalf of the prosecution it was argued by the learned counsel for the State that it was not incumbent upon the prosecution to produce all the witnesses named in the report, when it found that all of them were not eye-witnesses. Durjan alias Gotia named in the report was an independent witness, and the defence was not able to shake him in cross-examination. Under the circumstances there was no reason to disbelieve his statement. Patram and Khubi received injuries in the fight, and cannot, therefore, be said to be chance witnesses. Their evidence, coupled with the evidence of Durjan. was quite sufficient to prove that the appellant caused pharsi blows to the deceased, which brought about the latter's death. The theory of self-defence was put forward by the accused in the trial court only, and was clearly an afterthought. Upto the committing Magistrate's court his case was that he never dealt any blow to the deceased, who died as a consequence of the lathi blow from Patram. I have considered the arguments of both the learned counsel. There is no doubt that Chunia, Chandra Khati, Sukhia and Gopi were named in the first information report, who, besides Durjan alias Gotia and the persons of Khubi's party who were injured in the fight, were alleged to be witnesses who saw the occurrence. The Investigating Officer, Sher Singh, however, deposed after seeing the statements of Chandra Khati and Chunia that they were not the eye-witnesses to the actual fight. It cannot be said that the Sub-Inspector could have the hardihood of making such a false statement, unless their statements before the police actually showed that they were not the eye-witnesses. It may be that these two persons were on the spot at the time of the occurrence as admitted by Khubi, P. W. 1. It would, however, have served no useful purpose to produce them as prosecution witnesses, when truly or falsely they had made statement before the police which showed that they were not the eye-witnesses. The statement of the Investigating Officer in cross-examination before the trial court shows that he could examine only Khubi, Patram, Gotia, Chandra Khati and Chunia as prosecution witnesses, as other witnesses were not available on the spot. The prosecution was, therefore, not in a position to produce Gopi and Sukhi, who were not available, and whose statements they were unable to record. There is, therefore, sufficient reason forthcoming on behalf of the prose-cation for the non-production of Chandra Khati, Chunia, Gopi and Sukhia. The only witnesses, who could be available to the prosecution and who could throw any light on the case were Khubi, Patram and Durjan alias Gotia, out of the witnesses given in the first information report. Two witnesses Chandra Jat and Bhikla were also named before the police, and were examined by it, and were produced in court. Their statements, however, were not believed by the trial court, and it is, therefore, unnecessary to discuss their evidence. The non-production of Chandra Khati, Chunia, Gopi and Sukhia by the prosecution does not, under the circumstances of the case, affect the prosecution case adversely. It was held by their Lordships of the Privy Council in the case of Adel Muhammed El Dabbah vs. Attorney General of Palesline (1) (A. I. R. (32) 1945 P. C. 42.) that - ''there is no obligation or the prosecution to tender witnesses, whose names were upon the information but who were not called to give evidence by the prosecution, for cross examination by the defence. The prosecutor has a discretion as to what witnesses should be called for the prosecution, and the Court will not interfere with the exercise of that discretion, unless, it can be shown that the prosecutor has been influenced by some oblique motive. " It was further held that - "it is consistent with the discretion of counsel for the prosecutor that it should be a general practice of prosecuting counsel if they find no sufficient reason to the contrary, to tender witnesses whose names appear at the back of indictment but are not called by the prosecution to give evidence, for cross-examination by the defence but it remains a matter for the discretion of the prosecutor. " In the case of Girishchandra Namadas and others vs. Emperor (2) (A. I. R. 1932 Cal. 118.) it was held by a Division Bench of the Calcutta High Court that - "the fact that certain persons are mentioned in the first information report as being witnesses of the occurrence complained about does not in itself make it necessary for the prosecution to call any one of them. Nor does it give rise to the presumption under sec. 114 (g) of the Evidence Act. The only witnesses whom the prosecution need call are those who know the facts and are able and willing to give truthful evidence which is relevant to the charge. The mere statement by the complainant that some one was a witness of the occurrence is not conclusive. The only persons who can decide whether certain persons mentioned as eyewitnesses in the complaint are really witnesses or not are those whose duty it is to investigate the occurrence, and examine those who are alleged to be eyewitnesses. If they come to the conclusion that they are not eyewitnesses and cannot give any relevant evidence, it is no part of the duty of the prosecution to call them. " In the present case, it has been satisfactorily proved by the prosecution that the evidence of Chandra Khati and Chunia could not be of any use in the light of the statements they made before the police. So far as Sukhia and Gopi are concerned, they are shown to have been not available. It was quite up to the accused to produce these two witnesses, or for the matter of that Chandra Khati and Chunia, if he thought that their evidence was necessary. He could very well have asked the trial court also to examine them under section 540 of the Code of Criminal Procedure. It was, however, not done. I am of opinion that the non-production of these four witnesses by the prosecution was not deliberate, and was not due to any oblique motive. I now proceed to examine the prosecution evidence, which has been produced in the case, and see whether it establishes the charge against the accused. (Hereafter his lordship has discussed the evidence.) It is fully proved that it was the appellant who caused fatal injury to the deceased. His theory of self-defence comes forward at a very late stage, and even then in a form that it cannot be believed. If an accused has a case for the exercise of the right of private defence of person or property, it is desirable that he should come out with that defence squarely at the earliest possible opportunity. It was argued by the learned counsel for the appellant that an ordinary accused cannot be so courageous as to put forward the theory of self-defence clearly at an early stage, and that he should be given the benefit of this right, if it can otherwise be shown that there was occasion for exercising such right. It is true that in some cases even though the theory of self-defence was not put forward by the accused, he was given the benefit of that right, because the prosecution itself showed that there was such an occasion. In the present case, there is nothing in the prosecution evidence to show that there was an apprehension of any grievous injury to the appellant or his party from the side of Bobar. The hitting of Bobar was, therefore, uncalled for. The learned counsel for the appellant relied on a Division Bench ruling of this court in the case of Pheli vs. State (1) (A. I. R. 1952 Raj. 158. =1952 R. L. W. 128. ). But in that case there was evidence to show that the deceased initiated a blow to prevent which the accused had to use his sword. The facts of that case are, therefore, clearly distinguishable from the facts of the present case. He has also relied upon the case of Amjad Khan s/o Haji Mohammad Khan vs. The State (2) (A. I. R. 1952 S. C. 165. ). In that case there was a communal riot, and the hostile crowd was beating the doors of the shop of the accused with their lathis. A shot was then fired by the accused as also a second shot, and that caused the death of one of the persons of the opposite party, and injured three others of the same party. It was held that the accused had no time to have recourse to the authorities. The mob or crowd had already broken into one part of the building and was actually beating on the doors of the other part. The accused, therefore, could have reasonable ground for apprehending that either death or grievous hurt would be caused either to himself or to his family. Under these circumstances, he was given the benefit of the right of private defence of person. The facts of that case are also distinguishable from the facts of the present case. Again, the learned counsel cited a ruling of a Division Bench of this court in the case of Misaria vs. The State (3) (1952 R. L. W. 1. ). In that case also, it was held on the evidence that the prosecution party was the aggressive party, and the accused caused injuries to some of the persons of that party in order to save themselves from grievous hurt or death. The facts of that case also are not the same as those of this case. In this case of course there is evidence to show that one of the persons of the prosecution party hit the party of the accused first, but thereafter it appears that there was a free fight, and the party of the accused got better of that fight, as numerous injuries were caused to the party of the complainant, whereas very few injuries were caused to the party of the accused. Bobar was altogether unarmed, and there was no reason that any violence should be done to him under the circumstances of the case. The accused was, therefore, rightly disallowed the benefit of the right of private defence by the lower court. It was argued by the learned counsel for the appellant that according to the prosecution itself Ratiram first had a lathi in his hand. How could it be changed into a pharsi at a later stage ? It is a fact that the deceased received injuries from a sharp-edged weapon, and the doctor has deposed that they could be caused by a pharsi like Ex. 1. Even in the first information report it was mentioned that the first attack by Rati Ram was with a lathi, and thereafter with a pharsi, when he attacked Bobar. The prosecution evidence has also shown that first Rati Ram assaulted Khubi with a lathi and then he inflicted a pharsi blow on Bobar. It is thus clear that in the initial stages of the fight Rati Ram had a lathi, but afterwards he picked up a pharsi. Of course, Durjan has not been able to depose how pharsi came to Rati Ram's hands at a subsequent stage, but he is positive that Rati Ram had a pharsi when he struck Bobar. He is equally positive that Rati Ram had a lathi when he struck Khubi. Patram and Khubi have explained that while attacking Bobar Rati Ram brought out a pharsi from his Poli nearby. This is not improbable. This argument of the learned counsel for the appellant too, therefore, has no force.
(3.) TO my mind, however, proper conviction of the appellant was under sec. 304, part 2, of the Indian Penal Code, as it cannot be said that he had intention of causing death or any bodily injury which was likely to cause death. It. cannot, however, be denied that when he struck a pharsi blow on a vital part like the head of Bobar, he could have the knowledge that death was likely to result therefrom. I therefore, partly allow the appeal and modify the conviction from sec. 304, part one, to sec. 304 part two, of the Indian Penal Code, and, under the circumstances of the case, reduce the sentence to five years' rigorous imprisonment. .;