R.S. Bindra, J.C.
1. This appeal by Ramesh Chandra raises the question whether he had killed Abinash Chandra, at about dusk time on 1-4-1966 in the village of Mohanpur inside the house of P. W. 2 Mahendra Debnath, in exercise of the right of private defence of his person. The learned Sessions Judge, Agartala, has returned the verdict of guilty under Section 302, I.P.C. against the appellant and has sentenced him to life imprisonment.
2. A large number of labourers had been engaged by Mahendra Debnath (P. W. 2), on the date of occurrence, for the digging of a tank in the proximity of his residential house. About an hour before sun-set a Sadhu appeared on the scene and sat down on the west of southern hut in the house of Mahendra Debnath. The deceased Abinash Chandra and his father were busy at that time with agricultural operations in an adjoining field. After finishing the day's work Abinash Chandra proceeded to a place near the south-east comer of the tank where Mahendra Debnath was standing. Abinash Chandra, on being told by Mahendra Debnath that the person sitting close to the southern hut of the house was a Sadhu, expressed his desire to do pranam to him. He then carried a dao in his hand which he had brought from his field. He went towards the Sadhu carrying the dao with him. A short while after Mahendra Debnath heard' some sound emanating from the eastern direction. When he turned his back to find out what the matter was he was startled to notice that Abinash Chandra lay on the ground and the Sadhu was administering blows to him with the dao. The Sadhu was none other than the present appellant Ramesh Chandra. Mahendra Debnath let out a cry saying that Abinash Chandra was being done-to death by the Sadhu. The labourers working in the tank clambered out and proceeded towards the culprit. However, the latter scared them away by brandishing the weapon. Instantly, quite a few persons from the village including Dinesh Debnath (P. W. 3) reached the scene of occurrence. This Dinesh Debnath carried a bamboo lathi with him. He utilised the weapon for disarming the accused of the dao and for achieving that end, it is said he rained quite a few blows on his person. Once the weapon dropped from the hands of the accused, he was overpowered by the persons who had assembled around him. He was firmly secured with a rope and confined in a room.
3. One of the persons who had appeared on the scene soon after the occurrence was Subodh Chandra Debnath (P. W. 1). After this Subodh had collected the facts of the occurrence from the persons having knowledge of the same he left for the police station, Agartala, and lodged the F.I.R. Ext. P-l (a), at 7-55 P. M. on 1-4-1966, with the S. H. O. Aparna Ranjan Bhattacharjee. The S. H. O. reached the scene of occurrence at 8-50 P. M. He placed the accused under arrest, prepared the inquest report and the rough site plan Ext. P-4, and then sent the dead body of Abinash Chandra for post mortem examination.
4. The post mortem examination was done by Dr. Dwigendra Lal Banerjee (P. W. 18) at 11 A. M. on 2-4-1966. He found a large number of injuries on the person of the deceased including one clean cut gaping incised wound 6V2' X 3' X bone deep on the back of the neck 2 1/2' below the occipital region, an incised wound 3' X 2' X muscle deep just above the first mentioned injury, and another clean cut gaping incised wound 3' X 1' X muscle deep on the left side of the neck, an inch below the first injury. The internal examination revealed that the fourth cervical vertebra, the spinal cord, the trachea, the oesophagus, and the vessels of the neck had been cut at the level of injury No. 1. All the injuries were ante-mortem and occasioned by a sharp-edged weapon like dao. The death according to the opinion of the doctor, had resulted from the shock and haemorrhage occasioned by the injuries received. Injury No. 1, the doctor affirmed, was sufficient to cause death.
5. The accused pleaded not guilty to the charge. His defence, as put before the learned Sessions Judge, and repeated in this Court, was that Abinash Chandra, the deceased, and his wife had secured amulets from him to get a child, that the wife of Mahendra Debnath (P. W. 2) being ill he too had taken a charm from him for restoration to health of his wife, and that on the date of occurrence when he (the accused) went to the house of Mahendra Debnath, the latter and Abinash Chandra abused him on the charge that amulets provided by him had proved ineffective. Abinash Chandra went a step further and opened an assault on him with the blunt side of the dao that he carried on his person. Left with no alternative the accused wrested the weapon from Abinash Chandra and in sheer self-defence occasioned blows therewith to Abinash Chandra, which resulted in the latter's death.
6. The learned Sessions Judge rejected the plea of self-defence and holding the accused as the author of the brutal injuries inflicted on Abinash Chandra sentenced him to life imprisonment on the charge under Section 302, I.P.C.
7. Sri M. Nath appearing as amicus curiae for the appellant urged strenuously that there is ample material on the record to sustain the plea of self defence and submitted that the trial Court had erred in rejecting that plea. Shri H. C. Nath, the learned Government Advocate, urged equally vigorously that the charge of clean murder had been brought home to the accused, though he submitted, towards the close of arguments, that at the best the accused had exceeded the limits prescribed by law for exercising the right of private defence and so he may be held guilty of culpable homicide not amounting to murder under Part I of Section 304, I.P.C. It may be mentioned here that Dr. Dwigendra Lal Banerjee had found a number of injuries on the person of the accused when he happened to examine him at 2-15 A. M. on 2-4-1966. The injuries were a swelling with haematoma and congestion on the upper and lower eyelids, multiple abrasions of different sizes on the right side of the face, a lacerated injury l/4'X l/4'X l/4' on the right side of the forehead, two lacerated injuries each measuring about 1/4' X 1/8' X 1/4' on the lower lip, a lacerated injury 1/8' X 1/4' X 1/8' on the left side of the face near the border of the cheek, and another simple injury. The doctor also noticed that there was slight, but active, bleeding from the nose of the accused. All the injuries, the doctor affirmed, were on the face, nose, eyes and near about the eyes. It was conceded straightway by Sri 11. C. Nath that it is for the prosecution to explain the injuries found on the person of the accused. Indeed it is so.
8. Sri II. C. Nath urged that the injuries had been occasioned to the accused, according to the testimony of the prosecution witnesses, by P. W. 3 Dinesh Debnath or by the people who had assembled near the scene of occurrence. Though it is correct that a large number of prosecution witnesses have deposed in chorus that Dinesh Debnath had been attracted to the spot by the hubbub raised by Mahendra Debnath and that he had administered a number of blows to the accused with the lathi brought by him with the object of disarming him of the dao, a close scrutiny of that evidence and other circumstances have led me to the conclusion that this part of the prosecution story is a fabrication. The Investigating Officer admittedly reached the spot at 8-50 P.M. and we have his own testimony that he examined Mahendra Debnath, Nitai Debnath, Lakshan Debnath, Gopal Chandra Debnath and Karuna Mohan Debnath during the course of the night before sending the accused to the hospital for the treatment. It was not denied by Sri H. C. Nath that Dinesh Debnath was present in the village when the S.H.O. happened to reach there. However, the S.H.O. did not record the statement of Dinesh Debnath on that day but only on the 5th of April 1966. According to the version of the prosecution Dinesh Debnath had played a vital role at the time of the occurrence. In that context the S. H. O. was bound to record his statement on top priority basis and if he did not care to contact him soon after his arrival in the village, it must clearly be for the reason that the role assigned to Dinesh Debnath during the subsequent stages of the investigation had not been hammered out. Further, some of the injuries found on the person of accused were of bleeding nature. If those injuries had been occasioned by Dinesh Debnath, the lathi used by him would have been stained with blood. That lathi, however, was neither found by the S. H. O. at the spot, nor was it produced before him by Dinesh Debnath or some one else, nor again, the S. H, O. made any effort to locate it. In the F.I.R. it had been mentioned by Subodh Chandra Debnath (P. W. 1) that he had collected the facts pertaining to the offence from the labourers who had assembled at the spot. However, there is no recital in the document to the effect that either Dinesh Debnath had administered blows to the accused to deprive him of the weapon, or that after the accused had been relieved of the weapon the labourers had stormed him, All these facts cumulatively yield the inescapable conclusions that neither Dinesh Debnath had given lathi blows to the accused nor the labourers had fisted or cuffed the latter as contended by the learned Government Advocate. It may be appositely pointed out that the Medical Officer did not notice a single injury on the hands or arms of the accused and that none of the labourers was specific in saying who out of them had physically manhandled the accused. Another factor worth mention is that Kamala Kanta Debnath (P. W. 10), the father of the deceased, admitted that Dinesh Debnath is the maternal uncle of the deceased Abinash Debnath. If Dinesh Debnath is related to the deceased in that manner, Mahendra Debnath, a brother of Dinesh Debnath, would also be related to Abinash Debnath in the same way. Hence the averments of the two brothers, Mahendra and Dinesh, have to be taken with a grain of salt.
9. If the Court disbelieves the prosecution version that the injuries had been occasioned to the accused by Dinesh Debnath or by individuals assembled at the spot, as has been done above, it is left with no explanation, on the part of the prosecution, respecting the various injuries noticed by the doctor on his person. The corollary that follows is that the defence set up by the accused that those injuries had been occassioned to him by the deceased Abinash is thrown up in bold relief. Sri H. C. Nath minutely examined in Court all the injuries listed by the doctor and submitted that the haematoma and congestion on the eye-lids and the abrasions on the right side of the face could not have been occasioned by the blunt side of the dao as pleaded by the accused. I do not want to enter the lists with Sri H, C. Nath on that point. However, those two injuries can be easily explained. After the accused had wrested the weapon from the hands of Abinash Chandra, the latter could have entered into scuffle with him (the accused) to secure back the weapon and in the process to have administered him some fist blows in the region of eyes. Such blows could have occasioned haematoma and congestion in the eye-lids. The abrasions on the face may well have come about when the accused was secured by the persons at the spot. Sri H. C. Nath did not contest the proposition that the lacerated injuries on the forehead, lower lip and on the left
side of the face could have been occasioned with the blunt side of the dao which was brought to the Court room at my instance and was examined critically by Sri H. C. Nath.
10. Sri H. C. Nath very fairly conceded that the prosecution had not been able to establish genesis of the conflict that cropped up between the deceased Abinash and the accused. Mahendra Debnath was the first to know about the occurrence but admittedly when he looked in the direction of the scene of conflict the deceased was lying on the ground and the accused was administering blows to him. What had happened before that moment was apparently not known to Mahendra, As against the complete absence of prosecution evidence bearing on the origin of the conflict, we have the version of the accused that Mahendra Debnath and the accused played foul with him because the objectives for which they had secured the amulets from him had not materialized. It is also the version of the accused that Abinash used the blunt side of the dao he carried in his hand in occasioning him (the accused) some blows and it is then that he snatched the weapon from Abinash and used the same effectively against the latter. This version of the accused is not in conflict with facts established by the prosecution evidence. It also explains the injuries found on the person of the accused and provides in addition a reasonable version of how the situation flared up. Sarat Debnath (P. W. 7), the son of Mahendra Debnath, admitted that his mother had secured a talisman respecting her illness. It is in the statement of the Investigating Officer (P. W. 20) that amongst other articles seized by him from the scene of occurrence there was the amulet Ext. M. O. 5. Hence it is possible, nay probable, that the wife of Mahendra Debnath and the deceased had secured amulets from the accused. This piece of evidence also lends corroboration to the story propounded by the accused.
11. I agree with Sri H. C. Nath that it is not incumbent on the prosecution to establish the existence of any motive for the crime with which the accused may be charged, However, it cannot be gainsaid that there must exist a motive for every voluntary act. It may also be stated without fear of contradiction that in a criminal trial failure to prove the motive does not necessarily imply that there was no motive for the crime. It is equally well settled that the proof of motive is not necessary to sustain a conviction on a murder charge when there is clear evidence that the person had been done to death by the accused. In other words, when the facts establishing the charge are clear it is immaterial that the motive has not been proved. The reason is that the motive of an act may be known to the perpetrator and to none other and the, investigator may not have been able to collect any information in regard, thereto. In the background of these principles and the fact that the prosecution was unable to attribute any motive to the accused for having indulged in allegedly unprovoked assault with a deadly weapon on Abinash, we cannot lightly dismiss the motive which, according to the accused, had weighed with Abinash and Mahendra Debnath in creating a situation which cost a valuable young life. The defence of the accused that the two persons had firstly abused him and that Abinash had subsequently opened an assault on him with the blunt side of the dao looks highly probable, and since it has the merit of explaining the injuries suffered by the accused and also provides the motive for the accused making an assault on Abinash it cannot be left out of account. I would, therefore, accept the version preferred by the accused.
12. The only question that remains for determination is whether the facts bring the case within Exception 2 to Section 300, I.P.C. as canvassed by Sri M. Nath, the Counsel for the appellant. That exception provides that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of the defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. It may also be mentioned at this stage that Clause 4 of Section 99, I.P.C. enacts that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence, and that Section 102, I.P.C. states that the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed and that it continues as long as such' apprehension of danger to the body continues. It was contended by Sri M. Nath that the apprehension to the person of the accused commenced when Abinash opened the assault on him with the dao and that it terminated only after the accused had succeeded in flooring Abinash. When the unchallenged statement of Mahendra Debnath (P. W. 2) that the accused had administered some blows to Abinash even after the latter had fallen on the ground was brought to his notice, Sri M. Nath said that his client may be held guilty on the footing of that evidence under Section 324, I.P.C. for having exceeded the right of private defence. Sri H. C. Nath. however, urged that immediately after the moment the accused had succeeded in wresting the weapon from Abinash the right of private defence of body ceased to exist, and since all the blows had been administered by the accused to Abinash after that moment, he should be held guilty of murder. In my opinion, the truth lies somewhere in between the two extreme stands taken by the parties' Counsel. To quote the words from an American judgment, 'detached reflection cannot be demanded in the presence of an uplifted knife'. It is, indeed, often said, and rightly, that on(c) cannot weigh in golden scales what maximum amount of force was necessary to keep within the limits of the right of private defence. Hence I cannot subscribe to the contention of Sri H, C. Nath that apprehension to the person of the accused had terminated with the snatching of the weapon by him from the hands of Abinash. As observed earlier, Abinash must have in all likelihood continued the scuffle with the accused in a bid to snatch back the weapon from the latter. I have also observed above that possibly the injuries around the eyes of the accused had been occasioned by Abinash at that stage of the scuffle. Therefore, I do not feel safe in holding that the danger to the person of the accused had terminated after Abinash had been deprived of the weapon. At the same time I cannot agree with Sri M. Nath that the danger at that stage to the person of the accused was so grave that he could legitimately harbour the apprehension that Abinash would either kill him or occasion him grievous hurt.
In terms of Section 100, I.P.C. the right of private defence of the body extends to the voluntary causing of death, if the offence which occasions the exercise of the right be, inter alia, such an assault as may reasonably cause the apprehension that death or grievous hurt shall otherwise be the consequence of that assault. I cannot believe that in barehanded condition Abinash could have made an assault of such a nature on the accused. I would in consequence hold that the accused had over-stepped the legal limits of the defence of persons and as such he is guilty of an offence made punishable by Part II of Section 304, Indian Penal Code. I find material on record much too scarce to sustain the finding that the accused had any intention of causing death of Abinash or causing such bodily injury to him as was likely to cause his death. However, in view of the grave nature of the injuries inflicted on Abinash especially injury No. 1, the accused can be attributed the knowledge that his act was likely to cause death of Abinash. If the accused had come with the set intention of taking the life of Abinash, he must have brought some weapon with him. But that is not the case of the prosecution. The weapon used by him against Abinash had, by common agreement, been secured by him from the possession of Abinash.
13. In the matter of sentence I am not inclined to show any leniency to. the accused. The reason is that the number of injuries inflicted by him smack of barbarism and the nature thereof indicates brutality. I would, therefore, sentence him to 3 years' rigorous imprisonment and a fine of Rs. 2,000/- or, in default, additional rigorous imprisonment far 2 years. The fine, if realised, shall be paid to the heirs of the deceased Abinash.