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1. The learned Sessions Judge acquitted all the four accused of the charges under Section 302 I. P. Code but convicted all of them under Section 324, I. P. Code, and sentenced each of them to imprisonment till the rising of the Court. In regard to the acquittal of all the four accused under Section 302 read with Section 34, I. P. Code, the State has filed an appeal from acquittal.
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We hold that there are compelling reasons to set aside the order or acquittal, that the guilt of accused No. 1 under Section 302, I. P. Code, and of accused Nos. 2 and 3 under Section 324, I. P. Code, is proved beyond the possibility of any reasonable doubt, and that the learned Sessions Judge should not have acquitted accused Nos. 1, 2 and 3.
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2. The learned Sessions Judge held that Bhagwan was murdered on 14-1-59 at 10-30 a. m. near the Chora, that it was accused Nos. 1, 2, 3 and 4, who had caused injuries to Bhagwan near the Chora, that at that time accused No. 1 was armed with a spear and a dagger, accused No. 3 Govind had a hatchet, accused No. 4 was armed with an iron-shod stick and the accused No. 2 took up the sword of the deceased Bhagwan near the Chora. But the learned Judge held that the accused were entitled to the benefit of reasonable doubt. As regards the simple injuries with dangerous weapons caused to Mava, Bhana, Dhana, Kadvi and Moti, he held that all the four accused had caused these injuries and that they were guilty under Section 324, I. P. Code.
3. In his judgment after discussing the evidence of 16 alleged eye-witnesses of whom 13 were eyewitnesses to the incident at the Panchayat office and 3 to the incident at the Chora, the learned Sessions Judge observed that at the Panchayat office it was crystal clear that accused Kana opened the attack on Bhagwan that at the Panchayat office, Bhagwan stabbed Kana with a dagger, but was followed and pursued by accused No. 1 Hira, who was armed with a spear and a dagger, and accused No. 3 Govind who was armed with a hatchet. Tlie learned Sessions Judge also observed that it is crystal clear that at the Chora there was a fight between. Bhagwan on the one side and the four accused on the other, in the course of which Bhagwan could inflict the sword injuries on the three accused before he fell down. He fell down because a spear injury was inflicted on him by Hira, accused No. 1. As he fell down, naturally his sword and dagger fell down, which Kana, accused No. 2, picked up. In the opinion of the learned Sessions Judge the case before him was one where if any one had the right of private defence, it was Bhagwan the deceased. The learned Sessions Judge also rejected the defence theory that at the Panchayat office it was Bhagwan who had attacked Kana. According to the learned Sessions Judge it was accused No. 2 and No. 4 who started attack on Bhagwan at the Panchayat office. The learned Sessions Judge further observed that the right of private defence set up by the accused is not proved. However, the learned Sessions Judge relied on the observations in Sebastian David v. Sirkar Prosecutor, AIR 1950 Trav-Co. 9, and following this ruling he observed that as the eye-witnesses had suppressed the simple and obvious fact that it was the deceased Bhagwan, who had caused injuries to the three accused, the possibility that the accused were acting in the right of private defence cannot be denied. The learned Judge then proceeded to observe that he felt reasonably certain that in fact it was a case of mutual free determined fight between the rival factions. The learned Sessions Judge therefore thought that the accused were entitled to the benefit of reasonable doubt and that it is possible and likely that they were acting in the right of private defence as it was Bhagwan who had attacked the accused.
4. Both the findings of the learned Sessions Judge and the reasons given by him for such findings are inconsistent and illogical. He has held that Bhagwan was murdered on 14-1-59 at 10-30 a. m. near the Chora and that it was accused Nos. 1, 2, 3 and 4 who had caused the injuries to Bhagwan near the Chora. After this finding, the only questions left to be determined were whether the accused had acted in the right of private defence and whether they exceeded the right of private defence. Having held that it was the four accused who caused the injuries to Bhagwan and thereby caused the death of Bhagwan, the learned Sessions Judge did not proceed to frame the point for determination whether the accused had acted in the right of privale defence and whether the right had been exceeded. It is true that this question has been discussed at length in the judgment. It is also difficult to understand his finding that the accused were entitled fo the benefit of reasonable doubt in view of his earlier finding that it was the four accused who had caused injuries to Bhagwan near the Chora. The learned Sessions Judge had no doubt as to whether the accused had caused the injuries or not but his doubt appears to be on tlie point whether they were acting in the right of privale defence. In his judgment the learned Sessions Judge has not considered the question whether the accused or any of them had exceeded the right of private defence, and further at several places in his judgment the learned Sessions Judge has clearly stated that the right of private defence is not proved. However, the learned Sessions Judge has held that the accused are entitled to the benefit of reasonable doubt and it is possible and likely that they were acting in the right of private defence.
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5. The learned Sessions Judge has accepted the evidence of these witnesses and has therefore given a finding that it was accused Nos. 1, 2, 3 and 4 who had caused injuries to Bhagwan near the Chora.
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6. After holding that it was the accused who caused injuries to Bhagwan, the learned Sessions Judge thought that they were entitled to the benefit of reasonable doubt on the question of private defence, because the alleged eye-witnesses had not given any plausible explanation as to the injuries on the accused. In the opinion of the learned Sessions Judge, as the alleged eye-witnesses had suppressed the fact that the three of the accused had received injuries, the possibility that the accused were acting in the right of private defence cannot be excluded. For coining to this conclusion, the learned Sessions Judge relied on the decision in AIR 1950 Trav-Co 9, and in particular the following observations in that case:
'Where there are injuries on both sides (the accused and the complainant) the prosecution must cogently explain how the accused sustained injuries. Without such explanation, the prosecution evidence will not be complete and no Court will be prepared to act on evidence which leaves a lacuna'.
The learned Judges of the Travancore-Cochin High Court also observed as follows:
'This is not a case where the accused admits having caused the injuries on the complainant and pleads self-defence. The plea of self-defence is raised only in the argument of the counsel. A prosecution which cannot explain the injuries on the accused is not in the circumstances of the case entitled to succeed'.
With great respect, it is difficult to agree with the proposition that when there are injuries on both sides it is the duty of. the prosecution to cogently explain how the accused sustained injuries. In a criminal case, if the prosecution adduces reliable evidence for proving all the ingredients of the charges against the accused persons, the prosecution is entitled to succeed, unless the accused relics on any general or special explanation, (sic) in which case the burden is on the accused to prove the exception. In a case where the accused is said to have attacked the complainant or members of the complainant's party, it is sufficient for the prosecution to prove that the accused had attacked the members of the complainant's party with the requisite intention. In the chief examination of the prosecution witnesses it is not necessary for the prosecution to put questions to the prosecution witnesses as regards matters which are not included in the ingredients of the charge against the accused. Of course the prosecution must be fair and if there are any circumstances tending to show that the accused may have acted in the exercise of private defence the prosecution must place such circumstances betore the Court. If the accused had sustained injuries, the prosecution must place the fact that the accused had injuries before the Court but it is not necessary for the prosecution to 'cogently explain how the accused sustained injuries'. The prosecution must prove the alleged criminal acts of the accused and the alleged criminal intention. But it is not necessary for the prosecution to cogently explain a fact, which is not one of the ingredients of the offence charged against the accused. In the instant case, as in the Travancore-Cochin case the fact that injuries had been sustained by the accused has been proved by the prosecution evidence. In the instant case, the learned Sessions Judge did not accept the answers given by prosecution witnesses explaining how accused had sustained injuries. In fact, the learned Sessions Judge held that the injuries on the accused must have been caused by deceased Bhagwan. Even on such a basis, the pro-section may be entitled to succeed if it satisfactorily proves the alleged criminal acts and criminal intention on the part of the accused, and if the alleged right of private defence is not proved. But, of course, it is open to the defence to put questions to the prosecution witnesses in cross-examination, to show that injuries on the accused had been inflicted by the complainant's party. It is open to the defence to put questions to the prosecution witnesses in order to show that their evidence is not entitled to credit. It is open to the defence to show that the prosecution witnesses have given false or unsatisfactory answers to the questions put to them in the cross-examination. The defence can use such answers given in the cross-examination in order to discredit the testimony of the prosecution witnesses.
7. Mr. Sompura, Assistant Government Pleader for the State, has relied on Jumman v. State of Punjab, (S) : 1957CriLJ586 , wherein their Lordships observed that they believed the evidence of the prosecution witnesses P. Ws. 19 and 21 but their Lordships did not think that their suppression of the injuries on Jumman and Darshu could make their evidence totally unbelievable. It is open to a Court to believe the evidence of a witness either in whole or in part, and, as their Lordships of the Supreme Court have held the fact that some of the prosecution witnesses have suppressed or have given a futile explanation as to the injuries on the accused would not necessarily make their answers totally unbelievable. It is therefore difficult to agree with the view taken by the Travancore-Cochin High Court that in all cases where the prosecution have not given a satisfactory explanation of the injuries on the accused persons, the evidence of the prosecution witnesses must be totally rejected and that the prosecution is not entitled to succeed. The fact that the prosecution witnesses had given false or unsatisfactory ex-planation is a factor to be considered in the appreciation of the evidence of the prosecution wit-nesses, and no general rule can be laid down in such cases that merely because some of the prosecu-tion witnesses have not satisfactorily explained the injuries on the accused, in all cases their evidence must be rejected and the prosecution must totally fail. In the instant case, the two main prosecution witnesses, namely Bhana and Mava are the brothers of the deceased, and merely because they have tried to minimize the part played by the deceased in the occurrence, their evidence should not be rejected, particularly because their evidence is corroborated by the fact that injuries were found on both the witnesses and three of the accused persons. Accused No. 1 Hira in his examination stated that he had taken the dagger of the deceased Bhagwan who was attacking him with a sword. In order to save his own life, accused No. 1 gave two blows to Bhagwan without an intention of killing him. The learned Judge has held in favour of the accused that deceased Bhagwan must have caused injuries to the accused. It is clear from the evidence that Bhagawan who was going to the Chora was pursued by the accused who were armed with deadly weapons and apprehending danger Bhagwan may have caused injuries to the accused, or it may be that Bhagwan caused injuries to the accused after the latter started attacking him and in order to defend himself from the attack by the accused with dangerous weapons. But whatever be the circumstances in which Bhagwan caused injuries to the accused it is satisfactorily proved by the evidence -- as held by the learned Sessions Judge--that the three accused had attacked Bhagwan near the Chora. In these circumstances, notwithstanding the fact that the two main witnesses have not given a satisfactory explanation as to the injuries caused to the accused, we believe their evidence in so far as they implicate accused Nos. 1, 2 and 3 as having attacked Bhagwan.
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8. The learned Sessions Judge felt reasonably certain that in fact this is a case of mutual free determined fight between the rival factions. If that was his view he should not have acquitted the accused because in a free fight where both parties intended to attack each other there would be no right of private defence. It was also contended by the learned counsel for the respondents that this case would fall within Exception 4 to Section 300, Indian Penal Code, which reads as follows:
'Culpable homicide is not murder if it is committed without premeditation in a sudden tight, in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner'.
If some persons deliberately go to another with the intention of attacking him, that can never be a case of free fight or sudden flight. That would be a case where the latter would be entitled to the right of private defence in order to ward off the attack on him by the former. If two persons gather together at a place and some dispute suddenly arises, as a result of which the parties attack each other or one person attacks another that would be a case of sudden fight. In the instant case, on the evidence of the two main prosecution witnesses, which we have believed, Bhagwan was going to Visavadar village and on the way he passed the Chora, but he was followed and pursued by the accused, who attacked him brutally. The deceased and the accused were inveterate enemies. The mere fact that the accused were following him with dangerous weapons would justify Bhagwan in attacking them. It is not necessary that he should wait until he himself is attacked. He was armed with a sword and when he saw that the accused armed with spear, hatchet and iron-shod sticks were pursuing him, ho was entitled to reasonably apprehend grievous hurt to himself and he would be entitled to attack the accused even before he himself was attacked. There is however no evidence as to whether the accused first attacked Bhagwan or whether Bhagwan attacked the accused first. If the accused attacked Bhagwan first, the latter was of course entitled to defend himself and to cause injuries to the accused which were necessary for the purpose of his defence. But the question is whether the acts of the accused amount to an offence. It was not a case of a sudden fight, but a case of accused persons pursuing Bhagwan at the Chora and there attacking him. We therefore reject the contention of the learned counsel for the respondents that the accused are entitled to the benefit of Exception 4 to Section 300, Indian Penal Code.
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9. We set aside the acquittal of accused No. 1, convict him under Section 302, Indian Penal Code, for having caused the murder of Bhagwan, and sentence him to imprisonment for life. We set aside the acquittal of accused Nos. 2 and 3 and convict them under Section 324, I. P. C. for having caused injuries with dangerous weapons to Bhagwan and sentence each of them to rigorous imprisonment for eighteen months in view of the fact that they were already under-trial prisoners for nearly nine months.
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