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Dholia Ravji (Accused No. 1) Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1961CriLJ813; (1960)GLR151
AppellantDholia Ravji (Accused No. 1)
RespondentState
Excerpt:
- raju, j.1. appellant who was accused no. 1 at the sessions trial has been convicted by the learned sessions judge of baroda under section 302, indian penal code, for having caused the death of one vajiria debra and under section 326, indian penal code, for having voluntarily caused grievous hurt to one bai pidi, wife of jajiria debra. x x x x x in his examination at the sessions trial, the appellant made the following statement:vajiria was calling my wife a 'dakan' saying that his daughter had died. while i was going towards the kotardi, vajiria came from behind and he gave a blow with a 'dinga' on my head. vajiria was followed by his wife. i was thrown down by vajiria and' his wife. bai pidi had caught hold of my testicles and vajiria had caught hold of my hair and then i was beaten......
Judgment:

Raju, J.

1. Appellant who was accused No. 1 at the Sessions trial has been convicted by the learned Sessions Judge of Baroda under Section 302, Indian Penal Code, for having caused the death of one Vajiria Debra and under Section 326, Indian Penal Code, for having voluntarily caused grievous hurt to one Bai Pidi, wife of Jajiria Debra. x x x x x

In his examination at the Sessions trial, the appellant made the following statement:

Vajiria was calling my wife a 'Dakan' saying that his daughter had died. While I was going towards the Kotardi, Vajiria came from behind and he gave a blow with a 'Dinga' on my head. Vajiria was followed by his wife. I was thrown down by Vajiria and' his wife. Bai Pidi had caught hold of my testicles and Vajiria had caught hold of my hair and then I was beaten. Dharia was lying nearby which I took and gave blows to save my life. I beat them both, I then went to the Police Patel.

He, therefore, admitted of having caused the injuries by 'Dharia' to both Vajiria and Bai Pidt, and his case was that he had done so in exercise of his right of private defence. In view of the admission made by the appellant in his examination at the trial and in view of the evidence of the prosecution witnesses, the learned Sessions Judge held that the appellant had caused the death of Vajiria and had also voluntarily caused grievous hurt to Bai Pidi, although, according to the learned Sessions Judge, the motive suggested by the prosecution was not true. But, on the contrary, it was Vajiria and his wife Bai Pidi who suspected the wife of appellant No. 1 to be a 'Dakan' or witch. The learned Sessions Judge also disbelieved the prosectation case that the deceased Vajiria was dragged out of the house. According to the learned Judge, the incident happened outside the house of the deceased in the 'Vada' of one Abhesang, which adjoins the house of Vajiria on the north. Admittedly, there was an injury on the forehead of accused No. 1 which was a bleeding injury. But the learned Sessions Judge thought that the injury was of a minor nature, whereas injury No. 5 on the deceased which was on the neck was sufficient in the ordinary course of nature to cause death. The learned Sessions Judge, therefore, held that appellant intended to do more harm than was necessary for the purpose of private defence and that therefore, the ca.se did not fall under Exception II to Section 300, Indian Penal Code. As appellant admittedly had caused a number of injuries with his 'Dharia', the learned Sessions Judge thought; that appellant had an intention of doing more harm than was necessary for the purpose of defence, and, therefore, according to him, Exception II to Section 300, Indian Penal Code, did not apply the learned Sessions Judge, therefore, convicted the appellant under Section 302, Indian Penal Code, for having caused the death of Vajiria and under Section 326, Indian Penal Code, for having voluntarily caused grievous hurt with a 'Dharia' to Bai Pidi. At the Sessions trial, the learned Advocate for the accused No. 1 had merely argued that accused No. 1 was not guilty under Section 302, Indian Penal Code, but only under Section 304, Part I. In the appeal before us, the learned Counsel for the appellant, has argued that the appellant is entitled to an acquittal because he acted in the exercise of the right of private defence because he (the deceased) had given him a blow with his 'Dinga' and Bai Pidi had also caught hold of him and had pressed his testicles. It is urged by the learned Counsel for the appellant that the statement of the accused on this point would justify the inference that the appellant was acting in the exercise of the right of private defence and, therefore, he was entitled to acquittal the findings of the learned Sessions Judge that Vajiria died as a result of injuries caused to him by the appellant, that these injuries were five in number as testified to by the Medical Officer, and that Bai Pidi had also received grievous hurt, were not challenged by the learned Counsel for the appellant the appellant had himself admitted in his examination at the Sessions trial that he had caused injuries to both Vajiria and his wife Bai Pidi with his 'Dharia', which according to him lay at the scene of offence.

* * * * * * * *

2. In view of the admission made by the appellant in his examination at the Sessions trial that he had caused injuries with a 'Dharia' to both Vajiria and Bai Pidi, it is not necessary to discuss the prosecution evidence on this point. The finding of the learned Sessioss Judgse that the appellant had caused injuries with a 'Dharia' to Vajiria and Bai Pidi is not challenged in appeal by the learned Counsel for the appellant. The only questions for consideration are, whether the appellant had exercised the right of private defence, whether he had exceeded the right of private defence and whether his case fell under Exception II to Section 300, Indian Penal Code, As observed by the learned Sessions Judge, the prosecution case that Vajiria was dragged out of the house does not appear to be true in view of the fact that before the Police, the prosecution witnesses have not stated that Vajiria had been dragged out of the house. The prosecution witnesses have also admitted before the Police that it was deceased Vajiria and his wife Bai Pidi who suspected the wife of the appellant to be a witch there was, therefore, motive on the part of the deceased to attack the appellant and his wife. The learned Sessions Judge rightly disbelieved the prosecution case regarding the motive suggested by the prosecution, viz. that accused suspected Bai Pidi to be a witch and of having caused the death of the bullock of the accused five years ago. It is not likely that if the bullock had died, as a result of witchcraft, they would sleep over the incident for five years and try to take action five years later. On the contrary, there is positive evidence that it was deceased Vajiria and his wife Bai Pidi that suspected the wife of the appellant to be a witch and of having caused the death of their daughter. It, therefore appears likely that it was the deceased who had taken the aggressive although the prosecution witnesses have not admitted that the deceased had caused any injuries to the appellant. The statement made by the accused in his examination at the Sessions trial does not appear to be improbable. But, even if the statement made by the accused at his examination is taken into account, it does not justify the acquittal of the appellant. The statement would only prove that there was an occasion for him to exercise the right of private defence. But, admittedly, he had caused five injuries to the deceased Vajiria. It was for the appellant, therefore, to prove that he was acting in the exercise of his right of private defence on each of these five occasions when he caused the five injuries to the deceased. One of the injuries was fatal one and was sufficient in the ordinary course of nature to cause death. The accused had not in his examination at the Sessions trial stated any circumstances to show that when Ee caused the fatal injury to the deceased, he had a right of private defence which extended to the causing of death. He merely stated vaguely that as the deceased caused an injury to him with his 'Dinga' and as Bai Pidi had caught hold of his testicles, he took up a. 'Dharia' and gave blows with a 'Dharia' to save his life. When an accused relies on an Exception, it is for him to show the circumstances under which he was entitled to exercise the right of private defence to the extent claimed by him and also to show that the circumstances were not such as to lead one to the inference that he had exceeded the right of private defence. No doubt, accused may have been entitled to the right of private defence at the beginning of the occurrence after he had been injured by Vajiria. According to the Medical Officer, the injury which was on the forehead of the appellant was a minor one. It has not been suggested to Bai Pidi in her crossexamination that she caught hold of the testicles of the appellant. In these circumstances, even if the statement of the accused is relied upon, it would not show that his right of private defence extended to the causing of death of Vajiria Debra when he inflicted the fatal blow on the deceased and that he had not exceeded his right of private defence.

3. The learned Sessions Judge held that the Exception II to Section 300, Indian Penal Code, did not apply to the case of the appellant because admittedly the accused had inflicted five injuries to the deceased. But, according to the Doctor, excepting one injury, the other four were not even likely to cause death. To hold that Exception II to Section 300 does not apply, it is not sufficient that more harm was done than was necessary for the purpose of private defence, Even when the right of private defence is exceeded and even when more harm was done than was necessary for the purpose of private defence, Exception II would apply provided (1) the accused caused the death of a person without premeditatoin and (2) provided that when the accused, caused the death of a person he had no intention of doing more harm than was necessary for the purpose of defence even if he has caused more barm than was necessary for purpose of private defence. It is important to note that these two provisos have reference to the act of causing death which amounts to culpable homicide. As the deceased must have taken the aggressive and attacked the deceased first, this was a case where the accused acted without premeditation. In view of the fact that all the injuries excepting one were not likely to cause death, we cannot say that the accused intended to do more harm than was necessary for the purpose of his private defence when he dealt the only fatal blow and thereby caused the death of Vaiiria. We are inclined to believe the statement of the accused that he was initially attacked by the deceased with a 'Dinga' and that, therefore he had a right of private defence. It is clear from the nature of the injuries that the accused had exceeded the light of private defence, but he had acted without premeditation and without any intention of doing more harm than was necessary for private defence. Exception II to Section 300, I.P.C. therefore, applies. In the result, he would be guilty under Section 304, Part I. Indian Penal Code. We, therefore, alter the conviction of the appellant under Section 302, Indian Penal Code, to one under Section 304, Part I. Indian Penal Code, and reduce the sentence to sentence of rigorous imprisonment for seven years.

4. As regard the injuries caused to Bai Pidi, it is true that the appellant in his examination had stated that Bai Pidi had caught hold of his testicles, but he has not stated that even alter he had inflicted some injuries on her, he continued to have reasonable apprehension of hurt at her hands. Although, at the beginning, the appellant may have had such reasonable .apprehension it does not appear from his statement that he continued to be under that reasonable apprehension even after he inflicted some blows with a 'Dharia' on her. At least in regard to the second, third, fourth and fifth blows on Bai Pidi, the offence of voluntarily causing grievous hurt has been made out against the appellant. The learned Sessions Judge was, therefore, right in convicting the appellant under Section 326, Indian Penal Code, for having voluntarily caused grievous hurt to Bai Pidi with a 'Dharia'. The sentence of three years' rigorous imprisonment passed under Section 326, Indian Punal Code, does not require any interference. We, however, order that both the sentences to run concurrently.


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