C. Jagannadhacharyulu, J.C.
1. This is an appeal filed by the accused in Sessions Trial Case 28 of 1964 on the file of the Sessions Judge, Manipur, against his judgment of conviction dated 25.1.1965, under Part II Section 304 I.P.C. and sentence that he should undergo rigorous imprisonment for 4 years.
2. The case of the prosecution is that at about 6.30 or 7 A.M. on 20.3.1964 the deceased Kh. Kulabidhu Singh went along with P.W. 2 (N. Gulab Singh) to the house of the appellant (Wahengbam Kokngang Singh) which was at a distance of about 300 yards from the house of the deceased to purchase split bamboos. The appellant was not present. The deceased and P.W. 2 (N. Gulab Singh) were talking with the son of the appellant. In the meanwhile, the appellant returned home. The deceased wanted the appellant to sort out 40 watchets. When tested by the deceased, some of them broke down and in that connection an altercation took place between the deceased and the appellant, in the course of which the deceased called the appellant 'lawaimacha' (rustic) in Manipuri language.
3. The deceased and P.W. 2 (N. Gulan Singh) proceeded back towards the house of the deceased. When they had gone about 300 yards from the gate of the appellant, the latter came there suddenly and struck the deceased with a piece of a thick bamboo. As a result, the deceased fell down on the ground with injuries on his head and arm. He became unconscious and was taken to his house. At about 8 A.M. one W. Iboyaima Singh went to the Police Station, Imphal, and informed C.W. 1 (Budhachandra Singh), the Sub-Inspector of Police about the occurrence. C.W. 1 deputed P.W. 15 (Iboton Singh), Assistant Sub Inspector to proceed to the scene of occurrence. P.W. 13 (A.S.I.) arrived at the scene of occurrence at about 8.45 A.M. and found the deceased lying injured unconscious. He sent the injured to the Hospital. P.W. 8 (Iboton Singh), the brother of the deceased went to the Police Station in Imphal and lodged Ext. A/3 (report).
4. P.W. 13 arrested the appellant at about 9 a.m. and seized Ext. M/1 (Wakok) under Ext. A/1 from under the granary of the appellant on his information. P.W. 14 (Ibohal Singht, S.I.) took over the investigation. He prepared Ext. A/6 plan of the scene of offence. He tried to get the dying, declaration of the deceased recorded by a Magistrate. But, the injured was unconscious. The injured died in the hospital at about 11.50 P.M. in the night of 20.3.1964. P.W. 14 (S.I.) held inquest over the dead body as per Ext. A/3 and sent the dead body for postmortem examination.
5. P.W. 10 (Dr. K. Gopal Singh) conducted the post-mortem examination over the dead body at about 11.00 A.M. on 4.3.1964 and found (i) one bruise 1 1' on an area of 3 inches above the left ear, (ii) one haematoma just above the right ear, (iii) one swelling on the right fore-arm and (iv) black left eye. On dissection, he found one simple fracture 1' in length on the left frontal bone and one fracture of squamous portion of the right temporal bone. The membranes of the brain and the brain matter were full with clotted blood. P.W. 10 (Medical Officer) was of the opinion that the injury could be caused with Ext. M/1 (thick bamboo) and that the death was due to shock and haemorrhage as a result of the injuries Nos. 1 and 2. Ext. A/4 is his postmortem certificate.
6. The subsequent investigation was made by P.W. 15 the S.I. and officer-in-charge of Imphal Police Station.
7. The case of the appellant is that after the altercation between him and the deceased in the courtyard of the appellant was over, the deceased and P.W. 2 (N. Gulab Singh) left the house of the appellant. But, after proceeding for a distance of about 7 or 8 fathoms towards his house from the western gate of the appellant, the deceased shouted to the appellant asking him to come out so that he could 'finish' the appellant and also called the appellant as 'lawaimacha'. At this the appellant rushed towards the spot where the deceased and P.W. 2 (N. Gulab Singh) were standing. The deceased tried to pick up a boulder of stone from the road and strike with it. Thereupon, the appellant picked up Ext. M/1 which was lying there and struck the deceased only once with it. The blow fell on the head of the deceased and the appellant had acted in exercise of his right of private defence of his person.
8. The learned Sessions Judge believed the evidence of the 4 eye witnesses in this case, viz. P. Ws. 1 (Th. Chaoba Singh) 2 (N. Gulap Singh) 3 (U. Haobi Singh) and 9 (Th. Chandra Singh), that the injuries were caused by the appellant and that he died as a result of the same. He negatived the appellant's plea of self-defence. But, he held that the blows were not dealt under any pre-planned or pre-medidated assault, but that the appellant dealt 2 blows on the head of the deceased due to the altercation and that the case falls under Part II of Section 304 I.P.C. as culpable homicide not amounting to murder. Having regard to the facts that the appellant was in jail for about 10 months as an under-trial prisoner, that he is an old man aged 56 years and that he gave the blows in a fit of anger and upon a sudden quarrel, he imposed sentence of 4 years R.I. Hence the appeal.
9. The only point, which was argued and which arises for determination, is whether the appellant acted in the exercise of his right of private defence of his person and whether he is entitled to be acquitted.
10. Out of the 4 eye-witnesses, viz., P.Ws. 1 (Th. Chaoba Singh), 2 (N. Gulap Singh), 3 (U. Haobi Singh) and 9 (Th. Chandra Singh), as rightly pointed out by the learned Counsel for the appellant the testimony of P. Ws. 1, 3 and 9 (Th. Chaoba Singh, U. Haobi Singh and Th. Chandra Singh) that they had witnessed the occurrence is not believable. P.W. 1 (Th. Chaoba Singh) is a relation of the deceased. The deceased was the maternal uncle of P.W. 1 (Ch. Chaoba Singh). Both of them lived in the same compound and in different houses. Their compound is about 300 yards away from the house of the deceased. The topographical features of the house of the deceased are such that nobody from outside could see what was happening within the compound of the house of the deceased, which is bounded by a bund 3 ft. high and with a bamboo grove.
According to P.W. 1 (Th. Chaoba Singh) he heard some wailing of a woman and not of a man. According to P.W. 3 (U. Haobi Singh) the appellant was said to have used a 'stick' which is different from a 'bamboo' piece. According to P.W. 9 (Th. Chandra Singh) he heard shouting of Thallo, 'Thallo' ('stop him', 'stop him'), while his version before the police was that he had heard 'Hatloo' 'Hatloo' (Kill, kill). Besides, P. Ws. 1, 3 and 9 (Th. Chaoba Singh, U. Haobi Singh and Th. Chandra Singh) very much improved on the evidence of P.W. 2 (N. (Gulap Singh) by stating that the appellant had dealt 2 blows, while according to P.W. 2 (N. Gulap Singh) only one blow was dealt. Evidently, they spoke to two blow? to fit in with the medical evidence of P.W. 2 (N. Gulap Singh), an eyewitness who was with the deceased throughout the incident, shows that P. Ws. 1, 3 and 9 (Th. Chaoba Singh. U. Haobi Singh and Th. Chandra Singh) did not witness the occurrence. So their evidence has to be rejected.
11. The important witness, on whose evidence reliance was placed by the appellant's counsel, is P.W. 2 (N. Gulap Singh), who had accompanied the deceased to the house of the appellant and who was present with him throughout. He is a disinterested witness. As he was admittedly present even according to the version of the appellant himself, his evidence has to be believed. He deposed that, after the deceased tested some of the watchets, they gave way and broke and that thereupon the appellant remarked that if the watchets were tested like that all of them would break and that the appellant got annoyed and tested one watchet which did not break. It is the evidence of P.W. 2 (N. Gulap Singh) that the appellant told his son that he would not sell any watchet to the deceased and that the deceased replied that he would not purchase any watchet from the appellant and that he would not talk with a 'Lawaimacha' (rustic).
So saying P.W. 2 (N. Gulap Singh) and the deceased left the place and proceeded towards the house of the deceased. P.W. 2 (N Gulap Singh) swore that after they proceeded for a distance of about 7 or 8 fathoms, from the gate of the appellant, the latter came suddenly and struck the deceased on> his head with a piece of bamboo (Ext. M/1),. that the deceased turned towards him and! fell down, that the appellant ran away with Ext. M/1 and that subsequently, P.W. 1 (Th. Chaoba Singh) who had come there picked up the injured and took him to his. house. So, the evidence of P.W. 2 (N. Gulap Singh) in the chief examination shows that the appellant came suddenly and decoit a blow on the head of the deceased with Ext. M/1 without any kind of further provocation and that thus he attacked the deceased who was going away from the house of the appellant.
In the cross-examination the case of the appellant was suggested to him. He was asked whether it was not true that after the deceased and P.W. 2 (N. Gulap Singh) had gone about 6 or 7 fathoms, the deceased stood up and called the appellant as 'Lawaimacha' and asked him to come so that the deceased might finish him. P.W. 2 answered that it was a false suggestion. Then, another question was put to P.W. 2 whether it was not true that the deceased tried to pick up a boulder to attack the appellant with it, and that in the mean-time the appellant dealt a blow on his head. The-answer of P.W. 2 (N. Gulap Singh) was-that the deceased was trying to get at a stone and that in the meanwhile, the appellant struck him on his head. This piece of evidence cannot be separated from his evidence in the chief examination.
Read in the context and in the light of his evidence in the chief examination, it shows that after seeing the appellant coming armed with Ext. M/1 (thick bamboo stick) the deceased tried to pick up a stone immediately to save himself. It is highly improbable that an old man like the deceased who was going away from the house of the appellant after the verbal altercation, would have called the appellant to come out for a free fight. After the verbal altercation took place, the incident ended and the deceased and P.W. 2 (N. Gulap Singh) were returning home. So, the deceased would not have called him to come out for a fight.
The deceased must have tried to pick up a stone to defend himself after he saw the appellant corning armed with Ext. M/1. I As such, there was absolutely no necessity ' for the appellant to follow the deceased 'and beat him in the exercise of his alleged right of private defence. Even if it is assumed for the sake of argument that the deceased tried to pick up a stone, there was no justification for the appellant to deal such a heavy blow on the head of the deceased with such a thick piece of bamboo like Ext. M/1 that he reeled and fell down. He clearly exceeded the right of self-defence.
12. The evidence of P.W. 2 (N. Gulap Singh) that the appellant had dealt only lone blow on the head of the deceased shows that the other injuries were caused when the deceased fell down on the ground. This is in accordance with the medical evidence.
13. The learned Public Prosecutor argued that the case of the appellant was one of out and out denial of his presence on the scene of offence in the committing Magistrate's Court and that his case of self-defence in the Sessions Court is an afterthought. But, the appellant is entitled to rely on the evidence of the prosecution witnesses to make out a case of self-defence, if any So. there is no substance in the contention of the learned Public Prosecutor that the appellant cannot avail of his plea of self-defence.
14. The sentence of 4 years R.I. imposed by the learned Sessions Judge cannot be said to be excessive under the circumstances of the case and for the reasons given by him.
15. In the result, the appeal fails and is accordingly dismissed.