R.N. Misra, J.
1. The appellant has been convicted for the offence of murder and has been sentenced to rigorous imprisonment for life by the learned Additional Sessions Judge of Dhenkanal.
2. P.W. 1, the local Grama Rakshi, lodged First Information Report at about 9 a.m. on 26-2-1974 with the Officer-in-charge of the Sadar Police Station at Dhenkanal that between 12 midnight and 1 a.m. in the previous night while he was sleeping on the verandah of his house in the village, one Loohan Pradhan asked him to come running as they had caught a thief, Lochan led him to a Mahul tree near about. He found that there were several cut injuries on Gundicha and blood was oozing out. His waist had been tied by a rope to a small tree near about. Several persons were present at the occurrence. On enquiry, the informant was told by Gundicha that he had stolen a she-goat from accused Bhaja Pradhan's cattle shed and was going away. Bhaja ran from behind and gave him cut injuries. As a result of it, he dropped the goat which was then in a big jute bag. By daybreak, Gundicha succumbed to his injuries After due investigation, the appellant was sent up for trial for murdering the deceased Gundicha by means of tangia (M. O. I).
3. The defence plea is one of complete denial of the prosecution case and the appellant claimed that he had been falsely implicated on account of land dispute with the Grama Rakshi (P.W. 1).
4. There is no eye-witness to the occurrence and prosecution mainly relies upon the dying declaration as also the extra-judicial confession supported by P.W. 1 and the production of the tangia M. O. I, the lathi M. O. II by the appellant and giving discovery of the rope M. O. III from beneath the thatch heap and the circumstantial evidence of recovery of a she-goat from a gunny bag. Reliance has also been placed on human blood having been found on the lathi, the lungi and the rope. The learned trial Judge accepted P.W. 1 to be a disinterested and reliable witness and, therefore, also accepted the dying declaration. He also accepted the extra-judicial confession by rejecting the defence stand that Grama Rakshi being a police officer. Section 25 of the Evidence Act would not permit the alleged confessional statement of the appellant to be received in evidence. The learned trial Judge next examined the claim of right of private defence of property and was not prepared to uphold the claim of right of private defence Accordingly he found the appellant guilty of murder and convicted him under Section 302 of the Indian Penal Code and sentenced him in the manner already indicated,
5. Before us, counsel for the appellant reiterates the contention that the extra-judicial confession is not admissible because P.W. 1 the Grama Rakshi is a police officer. Reliance is placed on the nature of duties assigned to a Grama Rakshi and powers vested in him and it is claimed that though P.W. 1 holds the post of Grama Rakshi he is no other than a police officer.
Section 25 of the Evidence Act provides: -
No confession made to a police officer shall be proved as against a person accused of any offence.
The definition of 'police officer' occurring in the Indian Police Act. 5 of 1861 is not exhaustive and in the absence of a statutory definition and apart from all authority, one would be tempted to say that a police officer is a person whom any statute or other provision of law calls such, or, on whom it confers all or substantially all the powers and imposes on him the duties of a police officer. If he is expressly called a police officer there is no difficulty whatsoever. If he is not so-called, (then the next step to ask is, what does the law require him to do? What are the duties imposed on him and what are the powers conferred on him?
It is claimed by Mr. Dhall for the appellant that if the matter is examined from these standpoints, the only conclusion that can be reached is that a Grama Rakshi is a police officer. The question was examined by a Full Bench of this Court specifically with reference to a Grama Rakshi and the question does not appear to have been still finally disposed of. We are of the view that it is unnecessary to examine this aspect of the matter because even if the extra-judicial confession is excluded, there is sufficient evidence to support the prosecution case. We accordingly do not propose to conclusively decide as to whether a confession made before a Grama Rakshi would be hit by Section 25 of the Evidence Act,
6. Mr. Dhall for the appellant does not challenge the acceptability of the evidence of P.W. 1. P.W. 1 has made a categorical statement that the deceased stated to him that it was the appellant who gave the blows. The learned trial Judge has elaborately dealt with the evidence of P.W. 1 as also the other attendant circumstances to find out whether the deceased was in a position to make a dying declaration at the relevant time and has come to the conclusion that the dying declaration was true. It is unnecessary for us to reiterate the evidence in support of the conclusion because before us Mr. Dhall does not dispute the position that the prosecution has been able to prove the dying declaration. Undoubtedly a dying declaration based upon oral evidence, as in this case, requires further evidence to lend assurance to the matter, not because the dying declaration is not true or could not form the basis of conviction, but because the judicial mind would be clear that mistakes are eschewed out. The learned trial Judge has rightly looked for corroboration from various circumstantial evidence. The lathi, lungi and rope have been found on chemical examination to be stained with human blood. The doctor has found the injuries to have been caused by a tangia like M. O. I. The seizure of the dead goat from within a gunny bag has added assurance of truth as furnishing the background of the episode. We do not think, the finding of the learned trial Judge that it is the appellant who gave the fatal blows on the deceased can be disputed.
7. The only question which has been canvassed before us at some length is as to whether the appellant would be entitled to right of private defence of property. Reliance is placed on Section 104 of the Indian Penal Code, which provides:
If the offence, the committing of which or the attempting to commit which occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend subject to the restrictions mentioned in Section 99, to the voluntary causing to the wrong-doer of any harm other than death.
Under Section 103, under the specified circumstances, the right of private defence of property has been extended to the voluntary causing of death while under Section 104 of the Code, the right extends to causing to the wrong-doer of any harm other than death. Counsel for the appellant claims that in the facts of the case, the right under Section 104 of the Indian Penal Code was available to the appellant and while he was exercising this right, injuries inflicted upon the deceased have brought about unintended death. Therefore, the appellant is protected under Section 104 of the Code or if it is found that death was really voluntarily caused, it must be taken to be a case of excess of right of private defence not amountins to murder and, therefore, the conviction should be under Section 304 of the Indian Penal Code.
8. The circumstances in which the appellant gave the blows are clearly available on the record. At dead of night, deceased stealthily entered into the cattle shed of the appellant and removed a she-goat and after killing it was carrying the same in a gunny bag. The appellant ran from behind and gave the blows. The blows were with a deadly weapon and some of them were on the vital parts including the head. The statement made by the deceased before P.W. 1 shows that he was still carrying the gunny bag containing the she-goat when the injuries were inflicted. Admittedly it was a dark night and it is not easy to dispel the submission of Mr. Dhall for the appellant that placed under the circumstances as the appellant was, he was not able to know which parts of the body of the deceased he was striking. In these circumstances, merely because injuries were caused to vital parts of the body, it may not be possible to hold that the appellant intended to cause death of the deceased Seven successive blows were probably not called for Yet, from the circumstances established, it would not be appropriate to conclude that it is a case of murder.
9. On the other hand, it is reasonable to infer from the proved facts that the appellant was anxious to undo the mischief done to him and finding that the thief was running away chased him and caused the injuries indicated. On these facts, we are prepared to extend the benefit of Section 104 of the Indian Penal Code to the appellant but would hold that the appellant had no right to voluntarily cause death to the wrong-doer i.e. the deceased. This, in our opinion, therefore, is a case where the right of private defence has been exceeded. The proper provision under which the appellant should be punished, therefore, is under Section 304 of the Indian Penal Code. Keeping the facts and circumstances of the case in view, we think, the sentence of ten years' rigorous imprisonment would meet the ends of justice. We, therefore, set aside the conviction under Section 302 of the Indian Penal Code and convict the appellant under Section 304 of the Indian Penal Code and in lieu of the sentence of rigorous imprisonment for life impose the sentence of ten years' rigorous imprisonment. The appeal is dismissed subject to the modifications indicated above
N.K. Das, J.
10. I agree.