1. Victor alias Kalloo, appellant in Criminal Appeal No. 95 of 1961, was tried along with two others Sunny and Cyril Daniel, under Section 302, read with Section 34 of the I.P.C. for having intentionally caused, the death of one Shyamlal on 8.7.1960. The appellant Kalloo was convicted under Section 304, Part I, and the other two accused were given the benefit of doubt and acquitted by the Additional Sessions Judge, Jabalpur, who tried the case. The appellant filed an appeal against his conviction and sentence. The State also filed an appeal (Criminal Appeal No. 209 of 1961) against the acquittal of the appellant under Section 302, I.P.C. Both these appeals were heard by a Division Bench of this Court consisting of Naik and Golvalker, JJ. The learned Judges have differed-Naik, J. holding that there was no right of private defence and the appellant should nave been convicted under Section 302 of the I.P.C. and Colvalker, J. holding that the appellant had a right of privatr defence and should have been acquitted. The appeals have, therefore, been referred to me under Section 429 of the Cr.P.C.
2. There was a proposal of the marriage of Maya, sister of Prem Kumar alias Mintu (P. W. 6) with Clement Daniel, brother of Cyril Daniel. Mintu was opposed to this. On 3.7.1960 there was a quarrel between Mintu and Clement Daniel on this question and he beat Clement Daniel with shoes. Later, on 6.7.1960, at 6-30 p.m., Clement Daniel's brother Cyril Daniel, who was an accused in this case, abused Mintu and challenged him to come out. Mintu did not come out and ultimately at the intervention of Pyarelal (P. W. 2) and Mahadeo (P. W. 18), the incident ended in Cyril's party retiring.
3. Soon alter, appellant Kalloo (Victor), accompanied by Sunny and Cyril, came back to the house of Mintu. The prosecution alleged that they were then respectively armed with it dagger, axe and a stick. The deceased Shyamlal, Tillu (P. W. 4) and Umashanker (P. W. 1), who are men of the party of Mintu, followed them. Seeing this, Kalloo's party retreated to a side lane which led to their houses. Shyamlal's party pursued them and when they reached end of the lane near the house of Baijnath (P. W. 8), the appellant Kalloo struck Shyamlal with a dagger as a result of which he died the same night.
4. The defence version of the incident is that while the party of the accused was retiring to their houses through the lane, they heard cries of 'MARO, MARO' from behind and saw Shyamlal. Tillu and Umashanker armed wife weapons pursuing them. They ran and hid themselves in the verandah of Kamlabai. Soda-water bottles were hurled all around and to save themselves they ran away towards the Nala but met Shyamlal, who raised his axe to strike Kalloo. The blow missed him. Kalloo denied that he struck back Shyamlal and stated that he just ran away. However, his counsel stated on his behalf that the facts disclosed by the evidence on record show that the appellant acted in self-defence to save his life when he struck Shyamlal with a dagger causing fatal wounds.
5. After discussing the evidence in great detail, both the learned Judges have come to the conclusion that Shyamlal was struck by the appellant Kalloo with a dagger inflicting the three incised wounds on his chest causing injuries to his heart and lungs. These injuries ware sufficient in the ordinary course of nature to cause death, It is no longer open to the appellant to contend that these injuries were not caused by him, as it is only on points of difference that I have to record my opinion. See Ramlal Singh v. State : AIR1958MP380 .
6. It was not disputed before me that when the party of the accused consisting of Kalloo, Cyril and Sunny turned towards the lane to go to their respective houses, which lie to the west of the lane at a short distance from it, they were followed by Shyamlal deceased, Umashanker. (P. W. 1), Pyarelal (P. W. 2), Dashrathprasad (P. W. 7), Tillu (P. W. 4) and Gorelal (P. W. 13). Shri Rajendra Singh, learned Counsel for the appellant, pointed out that the party consisted of 20-25 persons; but from the evidence of the prosecution witnesses it is clear that there were only five persons in the party, though they were followed by some others who were no more than mere spectators. At this stage, it is necessary to find out whether the party of the accused was armed with dagger, axe and lathis; more particularly whether the deceased Shyamlal had an axe with him. On this point, the trial Court, after analyzing the prosecution evidence, came to the conclusion that the prosecution witness failed to prove beyond doubt that the party of the deceased had any arms. The question has been examined by Naik J., in Para. 15 of his opinion. Discarding the evidence of Pyarelal (P. W. 2) and Gorelal (P. W. 13) as well as of Umashanker (P. W. 1), the learned Judge considered Kandhilal (P. W, 12) as reliable, as he was disinterested. The house of Kandhilal is at the end of the lane where it meets the main road at the place where both the parties had entered it. Kandhilal was sitting at the time in the balcony of his house. He stated that he saw a dagger in the hands of Kalloo, an axe in the hands of Sunny and a lathi in the hands of Cyril Daniel. The learned Counsel for the appellant pointed out mat there is enough material on record to show mat Kandhilal is a man of the party of the deceased. Pyarelal (P.W. 2) has admitted in paragraph 5 of his statement that in the case write was article against his party under 8. 107 of the Criminal Procedure Code, the deceased Shyamlal, Umashanker's brother Mahadeo, Kandhilal and Dashrathprasad were co-accused with him. Kandhilal himself has admitted in Para. 7 of his statement that in spite of his being innocent, the police had arrested him in the case under Section 107 which was ultimately compromised. It would thus appear that this witness is interested in the party of the accused and like the other prosecution witnesses, implicit reliance cannot be placed on his word.
The learned Counsel for the appellant conceded that in view of the concurrent finding in the two opinions that Kalloo had assaulted the deceased with a dagger, he was unable to dispute the fact that Kalloo had a dagger with him at the time and as there was no place from where he could get it immediately before the assault, he must have been armed with it when he entered the lane. However, the real point is as to whether the deceased Shyamlal had an axe. Although there is no evidence on this point, the fact that an axe was found limuli quite close to the deceased Shyamlal lends support to the view that it was with him. The alternative explanation which is given by Umashanker and other prosecution witnesses that the axe was with Sunny cannot be accepted, as these witnesses are highly partisan and interested and their statements nave been considered unreliable. The prosecution has not been able to prove the identity of the owner of the axe which was found lying near the body of Shyamlal and it cannot, there fore be said that it belonged to Sunny. I am, therefore, of the view that the party of the accused was riot armed with an aw. although Kalloo tarried a dagger.
7. Turning now to the incident as it happened, the evidence of the prosecution witness, Pyarelal (P.W. 2). Gorelal (P.W. 13) and Tillu (P.W. 4), who deposed on the point, has been rejected. The trial Court relied only on the statement of Umashanker (P W. I), and Naik, J. in discussing his evidence pointed out that the witness was highly partisan and unreliable, though lie could be classed as 'a witness who is partly reliable and partly unreliable'. The test applied in appreciating his testimony was that only that part of his statement which was corroborated by other witnesses could be accepted. The only point on which corroboration was available from Dashrah-prasad (P.W. 7) was that the appellant Kalloo had struck the deceased Shyamlal with a dagger.
8. Umashanker (P.W. J) gave his version of the incident in Para 5 of his statement as follows:
We entered the lane and when we had reached the house of Sabunwala (Baijnath) we heard some noise from behind. Some people were following us. I turned round and saw Cyril, Kalloo and Sunny coming behind. I warned Shyamlal to take care. Accused Kalloo rushed at me with his dagger and Shyamlal rushed at Kalloo. Sunny gave a blow with Us axe on the head of Shyamlal from behind. Shyamlal fell down. Shyamlal was unarmed. When Shyamlal fell down, Kalloo sat on his thighs and gave three or four blows with his dagger on his chest. I shouted for help saying that Sunny and Kalloo were killing Shyamlal. As I shouted, Sunny rushed at me with his axe and I threw a soda-water bottle at him. It did not strike him and the blow with axe which he made at me did not strike me. I fell down and Sunny also fell down. I ran away towards the road. Cyril, Kalloo and Sunny ran away by the lane of Paul Jackson. Examining this statement, the trial Judge found that the story about the attack by Sunny with his axe on Shyamlal was not true, and this conclusion has been accepted by both the learned Judges. The medical evidence (Dr. P.N. Sraghal, Assistant Civil Surgeon, P.W. 29) disclosed that the deceased Shyamlal had no Injury on his head which could be attributed to an axe. This part of the story given by Umashanker (P.W. 1) is thus wholly unreliable and therefore the explanation that the axe wag with Sunny and was left by him cannot be accepted. The statement of the accused that the axe was with Shyamlal deceased appears to be more probable.
9. I would here refer to the map filed by the prosecution and that filed by the appellant before me. The accuracy of these two maps was admitted by both the parties. The lane runs north-south and the road lies east-west meeting it at the northern end. As one enters the lane from the road, that is, from the northern end, there is a lane turning right which takes one to the house of Sunny. Proceeding further along the lane towards the south, there is a lane going to the left and further down there is another lane in the same direction. It is here that we have the house of Kamlabai where the accused hid themselves. Going further a few feet is the spot at the southern end of the lane where the body of Shyamlal was found with the axe lying near him and then there is the electric pole to Which reference has been made by the prosecution witnesses. As the deceased was found to the south of the house of Kamlabai and as the party of the accused was ahead of the party of the deceased when they entered the lane, the statement of the accused that they had hid themselves in the house of Kamlabai appears to be true. Referring to the map of Karnlabai's house, which has been filed by the appellant and which has been admitted by the prosecution, we find that the open verandah lies to the extreme south of her house facing the lamp-post and between this verandah and the lamp-post is the spot where the dead body of Shyamlal was found. The statement of the accused that they hid in the verandah of Kamlabai refers to this open verandah.
10. The situation of the open verandah is important, as on it depends the appreciation of the fact whether the accused were in any danger of being discovered. Naik, J. has held that while the accused were hiding safely in the verandah and had no fear of being discovered, they should not have come out in the open to attack the deceased. On the other band, Golvalker J. holds that they were in secure in the verandah and their presence would have been sooner or later discovered. On examining the situation of the verandah, the lamp-post and the place where the dead body of Shyamlal was found, I am inclined to agree with the latter view. The light from the lamp-post was falling in the verandah. It is true that the party of the deceased had not discovered the presence of the accused in their hiding place before going beyond Kamlabai's verandah. All the same, as stated by Baijnath (P.W. 8), the party of the deceased was behaving in a rowdy and threatening manner. They were throwing soda-water bottles and stones on the houses nearby and some fell on Baijnath's house also. All the prosecution witnesses say that they were all using abusive and threatening language. It seems to me that when the accused were pursued closely, they found their escape from the lane towards the Nala at the south impossible and took the chance of hiding themselves in the open verandah. However, when some of the members of the party, including Shyamlal, passed beyond that point, they immediately realised that they would be found out. In his statement before the committal Court, Kalloo had stated:
No, we were hiding. These persons saw us and we ran towards our house.
He stated before the Sessions Court as follows:
When we entered the lane to go toward our houses and had gone about or 15 steps, we heard the noise ham behind MARO SALON KO, JANE NAHI PAYE'. We turned round and saw Shyamlal with an axe in his hand, Umashanker, Tillu, Gorey, Dashrath and Mahadeo who had daggers and sticks. They were chasing us. We ran and hid ourselves in Kamla's Parchhi. About 30 to 35 men ran towards our houses. It was dark. Several stones and three or four soda-water bottles fell at the place where we were hiding and burst like bombs. The people were dashing their sticks on the ground. We were afraid and ran towards the Church compound to save our lives....
It is likely that the statement of the accused before the committal Court that their presence was discovered by the party of the deceased is true.
11. Shri Rajendra Singh for the appellant suggested that the appellant while trying to escape met Shyamlal, who must have raised his axe to strike the appellant, and the appellant must have struck Shyamlal in self-defence. I have already extracted the material part of the statement of the appellant before both the Courts below. He did not state at any time that Shyamlal had raised his axe to strike him. There is thus no foundation for the statement either in the cross-examination of the prosecution witnesses or in the statement of the appellant.
12. In view of Section 105 of the Indian Evidence Act, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code is on the accused. There is a divergence of opinion about the exact nature of the burden of proof cast on the accused by this section, Typical of the two opposite views are the decisions in Parbhoo v. Emperor AIR 1941 All 402 (FB) and Government of Bombay v. Sakur AIR 1947 Bom 38 (SB). The view in the first case is that the accused is not required to prove the facts beyond reasonable doubt; but if on a review of the evidence the Court is left in doubt whether the circumstances bring the case within the general exception, the accused is entitled to an acquittal. In the second case, the burden has been held to be heavier in the sense of the word 'proved' as given in Section 3 of the Evidence Act.
13. So far as our High Court is concerned, it has always taken the first view. Thus, in Holia v. Emperor ILR (1948) Nag 903 : AIR 1949 Nag 163 Division Bench of this Court referred to Several decided cases on the point, viz., Woolmington v. Director of Public Prosecutions 1935 AC 462, Robert Stuart Wauchope v. Emperor ILR 61 Cal 168 : AIR 1933 Cal 800; Bapurao v. Emperor ILR (1937) Nag 38 : AIR 1936 Nag 160; King Emperor v. U. Damapala ILR (1936) Rang 666 : AIR 1937 Rang 83 (FB), and Basangouda Yamanappa (No. 1) v. Emperor ILR (1941) Bom 315 : AIR 1941 Bom 139 and concluded as follows:
According to all these cases all that may be necessary for the accused is to offer some explanation of the prosecution evidence, and if this appears to the Court to be reasonable, even though not beyond doubt and to be consistent with the innocence of the accused, he should be given the benefit of it.
The test was applied to the facts of the-case, and the learned Judges were not satisfied that me statement of the accused created to reasonable doubt. The explanation of the accused to that case was that he was provoked by his wife into fatally assaulting her on account of Jeer insistence to go to her parents. This was not considered to be sufficient explanation 'even to raise a reasonable doubt that the special circumstances of grave and sudden provocation as he has alleged may have been present'. The statement by itself was not therefore considered enough without any more evidence on behalf of the accused and conviction under Section 304, Part I, was altered to that under Section 302 of the Indian Penal Code.
14. In Bala Prasad v. State of Madhya Pradesh : AIR1961MP241 , Naik, J. speaking for the Court stated the law in Para. 21 as follows:
What Section 105 of the Evidence Act provides is that the Court shall not presume the existence of facts which may bring a case within the exceptions, etc., i.e., the evidential burden of introducing evidence to establish any such circumstances is on him. So that if no such evidence is on record, the accused shall run the risk of being convicted if the evidence against him led by the prosecution were to be belived. Such evidence may be introduced by Hi prosecution itself, or it may be introduced by, the defence. by the cross-examination of die prosecution witnesses, or by the statement of the accused under Section 342 of the Code of Criminal Procedure, or by defence evidence.
Further: For the burden of proving the guilt beyond reasonable doubt is on the prosecution, mid it must, before it can succeed, expressly negative every circumstance brought on the record which may lend to establish the defence. It is on the totality of the evidence that the guilt of the Licensed has to be determined to that high degree of moral certainty which is required for the proof of a criminal charge.
15. These decisions show that no such circumstances to bring the case of an accused within an exception shall be presumed unless he has introduced evidence on the point by cross-examination of the prosecution witnesses or by adducing defence evidence or by stating the circumstances in the examination under Section 342, Cri.P.C. if such statement read with the circumstances brought out creates a reasonable doubt that the plea may be true. The burden does not, in other words, extend to proving the defence affirmatively but the probability of the truth of the defence must be reasonably probable. This does not mean that mere statement of the accused is enough; but what is necessary is that it must be reasonably probable.
16. We have now to judge the defence of the appellant in this light. The facts as found by me are that the party of the appellant retreated towards the lane but were chased by the party, of the deceased which consisted of five prows. On the side o the appellant, only be was armed with a dagger. On the side of the deceased, it is probable that the deceased had an axe which, was found near his body and the ownership of which has not been explained by the prosecution. The party of the appellant hid themselves in Karnlabai's verandah, but some persons of the party of the deceased, including the deceased Shyamlal, passed beyond that point The presence of the appellant and his two companions was found out by the persons who had gone ahead.
17. What happened after. this is shown partly by the statement of Umashanker (P.W. 1). The version of this witness about the way in which the fight developed has not been accepted. Nor is there anything to show that Shyamlal had threatened to attack the appellant with his axe. However, his statement makes it clear that there was a fight in which he threw a soda-water bottle at Sunny, the companion of the appellant Finally the appellant stabbed Shyamlal.
18. As I have held that the appellant and his companions were seen in their place of hiding, it was no longer safe for them to remain there, It does not appear to me that the hiding was a mere ruse on the part of the appellant to draw Shyamlal's party to an unsafe position. In my opinion, the appellant's party was making a genuine attempt to escape by hiding. While trying to escape, the appellant struck Shyamlal with his dagger. As there is reasonable probability that Shyamlal had an axe, the appellant was justified in apprehending that grievous hurt might be caused to him in the light of the riotous character of Shyamlal's party and their antecedents. They could have no reason to enter the lane except for assaulting the party of the appellant. Under these circumstances, imminent danger of grievous hurt being caused to the appellant was not a mere possibility but a reasonable probability. He had therefore a right of private defence which could extend to causing death under Section 100 of the Indian Penal Code.
19. Shri K.K. Dube argued that unless there was an assault on the appellant just before he gave the mortal blow, there could be no right of private defence. This argument is based on the use of the word 'assault' in Section 100 of the Indian Penal Code. However, Section 100 along with Section 102 of the Indian Penal Code has been differently interpreted by the Supreme Court in Amjad Khan v. The State : 1952CriLJ648 . In that case, the accused had fired on the riotous mob through a hole in his door when the mob was attacking his neighbour's shop. No assault was made directly on the accused; but it was held that the violence which the mob was committing generally gave a reasonable apprehension to him that he would be killed. It was held that Section 100, read with Section 102, Indian Penal Code, implied that the right of private defence had commenced and the case of the accused was covered by the exception. Similarly, in the instant case, the violent and threatening attitude of the partof the deceased gave a reasonable ground to the appellant to believe that he was in danger of receiving grievous hurt at least, This is especially so when their presence in the hiding place was discovered and their exit was barred at both ends of the lane by men of the party of the deceased. Section 100, read with Section 102. I.P.C. thus applied to his case.
20. It was next submitted by the learned Government Advocate that the appellant could have no right of private defence, as he and his friends had themselves invited the attack. It is true that the party of the appellant had gone to Mintn's house and had challenged him to come out. However, on Mintn's refusal to come out, the dispute was finally pacified at the intervention of Pyarelal (P.W. 2). It was some time after this that the appellant's party retreated to the lane when Shyamlal's party threatened assault. Thereafter, the latter became aggressors. Their entry in the lane and their threats accompanied by riotous conduct could not be justified in any way. The appellant's party hid themselves to save the attack but could not succeed. On these facts, the argument that the appellant's party were the aggressors and could not claim the right of private defence cannot be sustained. There is some similarity between the facts of the present case and the facts in Ram Sewak v. Emperor AIR 1925 All 318 (2). In that cass, the accused had started the quarrel with the Opponent Baijnath and had tried to hit Mm. Baijnath and his companions returned the attack and the accused then ran for safety but was chased. When the accused found that be could not escape, he turned round and hit brie of the companions of Baijnath with a club causing his death. The plea that the accused acted in self defence was upheld.
21. It is true that the appellant gave three or four blows on the chest when probably one would have been enough to disable Shyamlal, However, for this reason alone it cannot be said that the appellant exceeded his right of private defence. He acted in the heat of moment. He could not have any time to deliberate when he should have stopped. Accordingly, I hold that his case falls fully under Section 100 of the Indian Penal Code.
22. In view of what I have said, my opinion is as follows:
(i) The appeal filed by the State for altering the conviction to Section 302 of the I.P.C. should be rejected.
(ii) The appeal of the accused-appellant Victor alias Kalloo should be allowed and he should be acquitted of the charge against him.