Modi, J. - (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. The accused Bhanwarsingh pleaded not guilty. He admitted that he slept in the Boarding House on the night between the 25th and 26th April, 1950, but denied that he had knifed Amarsingh. He also denied that the knife recovered was his. In the court of the committing Magistrate, Bhanwarsingh had further stated that Amarsingh, Ramsingh and Jethusingh gave him a beating with lathies on that night and so he ran away after he had received about 8 or 10 lathi blows and he did not know what happened thereafter. The case for the prosecution mainly rests for its proof upon the evidence of P. W. 10 Jethusingh an eye-witness, the circumstantial evidence offered by a number of boarders who rushed to the scene of occurrence having heard the alarm raised by the deceased Amarsingh, these witnesses being P. W. 3 Ramsingh, P. W. 12 Kishensingh, P. W. 13 Karansingh and P. W. 14 Dhanpatsingh and the dying declaration of the deceased Amarsingh. P. W. 10 Jethusingh who is also a student living in the same Boarding; House and is 16 years of age deposes that he and other students living in the Boarding used to keep late hours in those days as they were preparing for their examinations. His bed lay at a distance of about 5 or 6 paces from where the incident took place. As soon as he saw that Bhanwarsingh had pierced his knife into the body of Amarsingh, Jethusingh rushed to save Amarsingh and states to have succeeded in snatching the knife from the hand of the accused, and to have himself suffered a cut in the palm of his hand in the process. It is unfortunate that Jethusingh was not medically examined immediately on the next day of the occurrence and was examined on 2. 5. 50 and, therefore not much reliance can be placed on the medical certificate obtained by Jethusingh in respect of his own injuries, in fixing the guilt on Bhanwarsingh. Jethusingh further says that Ramsingh, Dhanpatsingh and Karansingh and also Partapsingh came running from down stairs to the terrace of the Boarding House having heard the cries of Amarsingh. Jethusingh handed over the knife to Ramsingh, Amarsingh's cousin who had arrived immediately after the stabbing. According to Jethusingh, Bhanwarsingh then ran away. As Amarsingh was bleeding profusely and his clothes became blood-stained, Jethusingh and other students who had come to the terrace took Amarsingh down-stairs and thence to the hospital. Learned counsel for the appellant had criticised the evidence of Jethusingh on account of certain contradictions and inconsistencies here and there; but in my opinion some allowance must be made for the age of the witness, and the confusion and the horror which must have been caused in the mind of Jethusingh owing to what he had seen. No reason has been pointed out nor in deed appears to me why Jethusingh should falsely implicate Bhanwarsingh in such a serious crime. Turning now to the evidence of the other witnesses who having heard the cries of Amarsingh ran to the spot, it appears that Ramsingh, the cousin of Amarsingh, was the first to reach Amarsingh. Jethusingh was already there, and Ramsingh deposes to have received the knife which Jethusingh made over to him. Ramsingh immediately inquired from Amarsingh as to who had assaulted him, and the latter replied that Bhanwarsingh was the assailant. Ramsingh says that when he reached the spot, Jethusingh was snatching something from the hands of Bhanwarsingh, and that Bhanwarsingh immediately ran away after the knife had been snatched from his hand. It is true that Ramsingh is a relation of Amarsingh, but I do not consider that to be a sufficient reason for treating his testimony with any suspicion, particularly as his presence on the spot soonafter the event is corroborated by Jethusingh and other witnesses. To a question whether he had beaten Bhanwarsingh with a stick, he replied that he did aim a blow at Bhanwarsingh, who had struck Amarsingh with a knife, in order to save his cousin from further injuries; but the witness added that he did not know whether the blow fell on Bhanwarsingh or not. It is perfectly conceivable that Ramsingh was probably understating the truth in this respect and he may have beaten Bhanwarsingh with a stick when he discovered that Bhanwarsingh had grievously assaulted his cousin Amarsingh. The evidence of P. W. 12 Kishensingh also shows that he rushed to the spot when heard the cries from the terrace of the Boarding House. He saw that Amarsingh had been injured in the abdomen and on the back, and when he inquired from Amarsingh as to how he came to receive those injuries, he replied that Bhanwarsingh had struck him with a knife. Kishen Singh says that when he reached Amarsingh, Jethusingh, Dhanpatsingh, Ramsingh and many other boys had collected round Amarsingh. P. W. 13 Karansingh is another witness who deposes to have gone to the terrace on hearing the outcry. He also says that Ramsingh and Jethusingh were near Amarsingh. Coming now to the evidence of Dhanpatsingh, P. W. 14, the learned Sessions Judge has refused to believe him as an eye-witness because this witness in his statement to the police (ex. P-10) had stated that he had reached the place of occurrence after the stabbing had taken place whereas in his statement at the trial he claimed to have seen the stabbing himself. This criticism is per-fectly justified and I am in agreement with the learned Sessions Judge that no reliance could be placed on the testimony of this witness as a direct proof of the occurrence. I now turn to the dying declaration of the deceased Amarsingh. As already stated above, this was recorded by Mr. Chandra Singh, First Class Magistrate, Jodhpur City, on 27. 4. 50 at 5-30 P. M. In this declaration (Ex. P-12), Amarsingh stated in reply to questions put and recorded by the Magistrate that Bhanwarsingh had assaulted Amarsingh with a knife. Amarsingh further stated that Harikishen was a bosom friend of Bhanwarsingh, and that Bhanwarsingh's idea was that if Amarsingh were taught a lesson, other boys would keep quiet. Amarsingh further stated that he was going to bring a copy-book when Bhanwarsingh put a knife into him stealthily from behind. Amarsingh added that Harikishen was a very bad character who had spoiled many boys of the Boarding House and that he had inspired Bhanwarsingh to assault him. Learned counsel for the accused has attacked the dying declaration on more grounds than one. His first criticism is that it is evident from the declaration that when the Magistrate put the very first question to the deceased Amarsingh and the latter gave his reply, the learned Magistrate felt that Amarsingh was not in his proper senses, and in fact the learned Magistrate recorded a remark to that effect. He appears to have waited for about 15 minutes and then put further questions to Amarsingh; but before doing so, the learned Magistrate did not have him examined by a doctor as to his mental condition although the learned Magistrate at the end of the statement did put down the remark that the answer to questions two to four were made by Amarsingh sensibly and consciously. The learned Magistrate should have taken care to have Amarsingh medically examined before he commenced to take up the recording of the declaration after he had given it up for about 15 minutes. Another line of criticism directed by learned counsel for the accused in this connection was that there was ample opportunity for other persons such as friends and relations of Amarsingh to have access to him in between the time when the Magistrate began and completed the dying declaration. In fact, the learned Magistrate admits in his statement in court that the relatives of the deponent did talk to him in his presence although the Magistrate says that the talk was directed to enable Amarsingh to regain consciousness, The learned Magistrate also admits that the relatives of the deceased Amarsingh were present with him when the Magistrate left the room, where Amarsingh was, after putting the first question,and also when the Magistrate reentered the room after 15 minutes. Now, a dying declaration is a very grave and solemn matter and if it is to have the value and the weight which should rightly attach to the word of a dying man, it must be recorded with all the requisite care and caution, and in circumstances which should be a sufficient guarantee that the statement so made was the free and voluntary statement of the deponent and was not the outcome of any coaching or preparation at the hands of his relations, friends or any body else. The procedure adopted by the learned Magistrate in recording the statement in the present case left a lot to be desired, and much weight cannot, therefore, be attached thereto as the said statement appears to have been made in circumstances which permitted consultation and concert with out-siders. Learned counsel for the accused further argued that in the present case the deponent was probably already aware that the accused had been implicated in the first information report and, therefore, no value should be attached to the naming of the accused by the deponent in the dying declaration. He relies on Muzaffar vs. Emperor (1) (99 I. C. 322. ). This particular circumstance would not, however, detract from the value of the dying declaration in the circumstances of this case, because Amarsingh himself gave out the name of his assailant at the earliest possible opportunity when Ramsingh and Kishensingh had questioned him soonafter the incident as to who was his assailant, and Amarsingh had replied that it was Bhanwarsingh. In any case, if the conviction in the present case rested merely on the dying declaration. I would not consider it safe to convict the accused relying On it alone. But the dying declaration receives considerable support from the evidence of Jethusingh eye-witness, and I have already held above that there is no valid reason why the statement of the witness should not be believed. All that I consider necessary to say in the circumstances of this case is that the dying declaration should be treated with the greatest caution because it was made in circumstances which do not rule out prompting at the hands of Amarsingh's friends or sympathisers. But as there is other independent evidence which goes to corroborate the dying declaration. I am of opinion that it can be taken into consideration along with the rest of the evidence direct and circumstantial, and in this view; of the case I am prepared to hold that it is one of the links in the chain which proves the guilt of the accused. Learned counsel for the accused lastly urged that assuming that the accused Bhanwarsingh had fatally assaulted the accused, he did so in the exercise of his right of private defence of his body. Learned counsel relied upon a number of circumstances in this connection viz. , (1) that the prosecution has tried to conceal the events and circumstances preceding the stabbing incident; (2) that the accused himself suffered a number of injuries already set out above; (3) that in his reply to a question, Ramsingh witness had admitted that he had aimed a blow at Bhanwarsingh although he did not know whether it struck him or not; (4) that Chimnaram P. W. 15 has stated that when he questioned Bhanwarsingh the next morning he replied that Amarsingh has beaten him with a lathi and thereafter Bhanwarsingh had assaulted him with his knife, and (5) that Chimnaram had further admitted that he had made the first information report, after consultation with Mr. Baldeoram Mirdha who was the President of the Kisan Boarding House, Jodhpur, after a delay of about 10 hours or so which also showed that certain facts and circumstances which were favourable to the accused were sought to be screened. Learned counsel urged with considerable force that it was open to the accused to take up the plea of self-defence in this court although he had not raised it in the courts below; while the learned Government Advocate vehemently argued that as the accused had not taken up this plea specifically and at the proper time, he should not be allowed to plead it for the first time in this appeal.
(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. In view of the facts and circumstances mentioned above, I have no hesitation in coming to the conclusion that plea of self-defence raised by learned counsel for the appellant cannot be sustained, and is indeed in the nature of an after-thought. The only question that remains for consideration is as to what offence the accused Bhanwarsingh has committed. The learned Sessions Judge has found him guilty not of murder but of culpable homicide not amounting to murder under sec. 304 I. P. C. , although his finding in this respect is not as clear as it should have been, and is somewhat of a confused character. It is obvious, however, that the accused did not intend to kill Amarsingh nor did the accused intend such injury upon Amarsingh, which was likely to cause death or which was sufficient in the ordinary course of nature to cause death, and, therefore, the accused's guilt did not amount to murder but only to culpable homicide not amounting to murder under sec. 364 I. P. C. But sec. 304 consists of two parts, and the learned Sessions Judge should have specified in his judgment under which part of that section he was going to convict the accused. Stating very briefly, part one of sec. 304 covers cases of guilty intention, whereas part two of guilty knowledge. It will be too much to say that the accused in this case had any guilty intention in the sense that he intended to cause the death of Amarsingh or of causing such bodily injury to him as was likely to cause his death. The accused Bhanwarsingh appears to have acted in the heat of passion and in a fit of anger. The prosecution has failed to bring out the exact circumstances preceding the stabbing of Amarsingh by the accused Bhanwarsingh, but it is a safe inference to hold that Bhanwarsingh was greatly insulted by something which Amarsingh had spoken to Bhanwarsingh immediately before the stabbing incident took place. The accused Bhanwarsingh thereafter assaulted Amarsingh with a knife once in the back, and then again in the abdomen. In any event, he must have known that by doing so, he was likely to cause the death of Amarsingh. The accused Bhanwarsingh is, therefore, guilty of an offence under sec. 304 part (2), of the Indian Penal Code. In this view of the case, I am of opinion that the sentence of six years' rigorous imprisonment passed by the learned Sessions Judge on the accused Bhanwarsingh is not inappropriate. In the result, this appeal fails and is hereby dismissed. . ;