1. This is an appeal against the conviction and sentence passed by the Additional Sessions Judge, Baroda, on the appellant under Section 302, I. P. C. for the murder of one Nana Jeram and under Section 324, I. P. C. for causing hurt to one Bai Gujaliand sentenced to suffer imprisonment for life and Rule I for one year respectively. Both the sentences were ordered to run concurrently.
2. The prosecution case, jn brief may be put this way:
The deceased Nana Jeram was living with his daughter-in-law Bai Gujali and her young son aged about 4 years in the village of Moti Sadha'lj in Chhotaudenur Taluka. Bai Gujali's husband had died 3 years before the date of the incident in the case, which took place on the 8th of March 1980. On the day in question i.e. 8th March 1960, while the deceased Nana Jeram and Bai Gujali were geting ready to sleep after haying taken their night meals and when her father-in-law was sitting on the cot it is the prosecution case that Bai Gujali saw two persons in their courtyard. Not having recognized the intruders, she questioned who they were 4 or 5 times but the intruders gave no answer.
Thereupon it is alleged that Bai Gujalj told her father-in-law that these intruders were not disclosing their identity. At that time, the deceased and Bai Gujali were in the 'Parshal' i.e. the front verandah of the house; that on Bai Gujali telling this way to the deceased, the deceased said --'who arc coming?' and abused them and further said that some months back his house was looted. He further said -- 'Let them come. I will either kill them or be lulled'. As there was no response of any kind from these intruders the deceased, it Js alleged, took up his bow and arrows and shot one arrow, which hurt one of the two intruders in the chest. The name of the victim is Fulji Gandu. Gujalj recognized Fulji after Fulji fell down. Thereupon, it is alleged that the companion of Fulji i.e. Raising the accused, was recognized by Gujali.
It is alleged that since Fulji fell down, Raising, the accused-appellant, attacked the deceased with a Palia which is a sharp-cutting weapon, and gave three Wows with the Palia. It is alleged that the accused also shot an arrow at the deceased. The deceased thereafter fell down. The accused while going away also shot an arrow at. Bai Gujali, which injured her on her arm. The accused ran away. The deceased who was hit in the 'Parshal' crawled near upto the gate and the prosecution case is that the deceased died immediately while he was thus inside the gate. Bai Gujali, who was alone in her house, then shouted to call one Kalji who is a neighbour.
It may be stated that the nearest house inthis village was of Kalji at a distance of about 150 feet. There were no other houses in the vicinity. When Kalji came Gujali told him what had happened. Kalji then called another person by name Nanla Kidia- In the morning the police came on the spot. That was as a result of a complaint by the accused at about 5-30 in the morning to the Rangpur Police Station, which is about 2 miles away from this village, in regard to the injury by the deceased on Fulji. The statement of Bai Gujali was recorded in regard to the assault by the accused on the deceased Nana Jerarn. The complaint was thus recorded by the police at about8 in the morning. A Panchanama of the dead-body and the scene of offence was made. During the Panchnama of the spot, a turban of the accused was found in the Parshal,
The accused was arrested in the morning between 8 and 9 On the 9th of March 'and it is alleged that his 'langot' and its string were found withstains of blood. His clothes were taken charge ofThe dead-body of the deceased was sent for postmortem examination where it was found that hehad three incised injuries and one punctured woundand actually in the punctured wound, the blade ofan arrow was still sticking in. After completingthe investigation, the accused was charge-sheetedand put up before the learned Magistrate for preliminary inquiry, who committed the accused toSessions. In the Sessions Court the accused wasconvicted and sentenced as stated above, againstwhich the present appeal has been preferred byhim. (Here, their Lordships discussed the evidencein, Paras 3-15; and held that the accused-appellantwas the assailant of the deceased and that he wasresponsible for the murderous assault on the deceased.)
16. If was further contended on behalf of the defence that if the accused was the assailant of the deceased, then in that case the accused was acting in his right of self-defence. It was said 'that Gujali in her evidence has stated that 'after the first arrow was hit on Fulji, the deceased tried to shoot another arrow and in all these circumstances the accused had a right of defending both himself as well as the body of Fulji from further harm. To this, the answer of the prosecution is that the deceased was himself acting in self-defence and that therefore, if the deceased was acting in self-defence, the accused, who was an inlru-der'in the premises of the deceased at night and a wrong-doer himself, had no counter right of self-defence against the deceased.
17. Before discussing this question, it would be convenient to refer to the evidence of Gujali on this point. The evidence of Gujali on this point is to the effect that she and her father-in-law had taken their night meals and they were preparing to go to bed; that her father-in-law was siting on the cob in the Tarshal and she was also in the 'Parshal'. The witness has not given the time but she said that they were about to retire for bed, which might be somewhere between 8 and 9 P.M. or roundabout.
It is further in the evidence of Gujali thatwhen she was in the 'Parshal', she saw the two intruders in the courtyard. She had not recognized them at that time. So, she asked five times (in her first information report she mentions 3 or 4 times) as to who these intruders were. No answer was given by the intruders. She then told her father-in-law that these people (meaning the intruders) were not speaking-anything.
It is (hereupon that her father-in-law asked the intruders who they were and further abused them. He also said that once they had looted him. The deceased further said -- 'Let' me seehow you come. Either I will kill you or I will myself be killed', and it is in Gujali's evidence that her father-in-law had also said that even while dying he will kill all these people, meaning the intruders who had come. Having said these words, immediately the deceased shot an arrow, which did Fulji it is in evidence that the width of the courtyard is about 6 feet and the Parshal's length length is about 27 feet and in front of the Tarshal' is the, courtyard which has a gate, which is called 'Zampa'.
The evidence of Gujali is that the intruders had already entered the 'Zampa'' and were in the 'Angan' and were coming in the Tarshal', in other words, that they had not actuary stepped in the Tarshal' but they were proceeding to come to the Parshal. It is also in the evidence of Gujali that about Diwali previous to the incident in the case, there' was a robbery at the residence of the deceased. On tin's point ther0 was no cross-examination on behalf of the defence. The facts therefore, show that the time of this incident was somewhere between 8 and 9 in the night and 'he residence of the decased was in a village at a lonely spot.
18. Bearing in mind the above facts, one has to consider the question as to whether the accused had a right of self-defence. If the deceased himself was the aggressor, then in that case normally the accused would have a right of self-defence. To determine the question therefore whether the accused had a right of self-defence it will be necessary to see whether the deceased himself was an aggressor or was acting in self-defence, and if he was acting in his right of self-defence whether he was within the limits of the law in the exercise of the same.
Now, in this context, Section 103 of the Indian Penal Code provides that a person is entitled to defend himself or any person in defence of property upto the causing of death of his adversary against an offence or an attempt to commit an offence amongst others of house trespass which reasonably causes the apprehension of death or grievous hurt. In other words if the offence which gives the right of self-defence is an offence of house trespass Or art attempt to house trespass which may reasonably cause the apprehension of death or grievous hurt, then in that case the right of self-defence extends to the causing of death or of any other harm to the adversary.
Now, in this case, there was no actual offence of trespass. Bu6 the evidcnce of Gujali discloses that the accused and Fulji came at night between about 8 and 9 to the house of the deceased which was in a lonely spot. They entered the 'Jhampli i.e. the 'Jhampa' gate. The compound or the 'Angan', as it was called, was hardly 6 feet wide. The two intruders were proceeding towards the Tarashal', which is a constructed portion of the house itself when at that stage they were repeatedly asked by Gujali as to who the intruders were. The intruders, however, gave no answer to this query.
The deceased Nana, on being told about this by Gujali then challenged them saying that they had looted the house last Diwali and that on this occasion he challenges them to come inside saying either he will kill or be kilted himself and also saying that while dying he will kill his assailants. Yet, the intruders gave no answer and they were moving towards the 'Parshal'. ' It was at this stage that the deceased hit an arrow while he was on the Tarshal. It struck. Fulji, who was one of the intruders.
This circumstance shows that the deceased was justified in reasonably entertaining an apprehension that death or grievous hurt to himself or to the inmates of his house would result from the circumstances in which an attempt of house trespass in this particular case was made by the intruders. His own words that even while dying he will finish the intruders show that the apprehension in his mind was real and the circumstance of the intrusion would make such apprehension reasonable enough. The right of self-defence is not dependent on the actual criminality of the person resisted; it depends solely on the wrongful, or apparently wrongful, character of the act attempted. If the apprehension is teal and reasonable, it makes no difference that it is mistaken.
We may refer to Section 79 of the Indian Penal Code which says, nothing is an offence which is done by any person who is justified by law or who by reason of a mistake of fact and not by reason of a mistake of law in good faith believes himself to be justified by law in doing it. In other words, it is lawful to shoot a man who is found opening your plate chest at night, though he happens to be your butler, whom you mistake for a burglar. You commit no offence in these circumstances, if you shoot your butler bona fide thinking him to he a burglar. But whether the butter has a' right of self-defence or not will depend on the question whether the butter was on an innocent mission or a criminal one which aspect we shall consider a little later in this case.
For the moment we are considering whether the deceased was the aggressor or was acting in lawful defence. (See the Criminal Law of India fey J. D. Mayne, Third Edition, p. 459).
Now, In this connection we may further refer to the observations in the same book at page 453 with which we are in agreement, which are asfollows :
'The greatest indulgence is always shown to the acts of a person who suddenly discovers a house-breaker in his house at night. The heinous character of the offence, She uncertainty whether the man is armed, and likely to attempt violence, the want of time for reflection, would in the great majority of cases be an ample justification to any inmate of the house who at once made fatal use of a deadly weapon. But if the size or youth of the offender his efforts to escape observation When approached or his entreaties for mercy, showed that no real danger was to be apprehended from him, I imagine that no measures of extreme violence could be justified.'
In the instant case the time at which this offence-took place was the time' of the night. The house was situated in a lonely spot. The next house was at a distance of about 150 feet. Barring that house, the human habitation in small hamlets was about half a mile away. The two intruders had entered the Zampli and were in the Angan and coming towards the Parshal, which was hardly. 6 feet away from the Zampli gate itself. In other words, there was an Angan or a gap between the Parshal and the Zampa gate about 6 feet wide.
The intruders having entered the Zampa were proceeding in the direction of the Parshal. Before they could step into the Parshal they were repeatedly asked by Gujali as to who' they were. They gave no answer. Thereupon, the deceased himself: While sitting in the Parshal challenged them as to who they were, saying that they had looted the house last Diwali but this time he would not allow the miscreants to go away. In spile of this warning, the intruders gave no answer. Not only they gave n0 answer but the evidence shows that there was no attempt on their part to an away from the spot or to ask for mercy or to disclose their identity.
In these circumstances, there will be no difficulty in our saying that this was a case where the deceased was justified in entertaining an apprehension of death or grievous hurt at the hands of the intruders, for there was already an entry into the compound and an attempt to get into the house by the intruders. There was also the uncertainty whether the intruders, were armed and likely to attempt violence. There was also the want of time for reflection before a probable attack from the intruders.
In these circumstances, if the deceased acted_ as he did, in attacking the intruders, we can say that lie was justified in the exercise of his right of self-defence, and looking to all the circumstances in the case, there can also be little doubt that he had not exceeded the limits allowed to him under the law, namely that a person cannot use more violence than jg absolutely necessary at the moment for his sell-defence and that he can use violence in self-defence only after the apprehension starts and only so long as the apprehension lasts.
The moment the apprehension of death or grievous hurt ceases, the right of self-defence im-mediately conies to an end Bearing all these circumstances in mind, we can say that in the present case the deceased was fully within his right of self-defence, and he had not exceeded the same.
19. Before leaving this aspect of the ques-lion, we may mention the argument that was advanced on behalf of the defence that Gujali in her evidence has stated that the intruders were at a distance of about 20 feet from the Parshal it was contended that if the distance was so much, there was really no danger to the deceased or his family. The actual length of the Parshal is about 27 feet and there is a 0 feet wide gap between the end of the Parshat and the Zampa gate. The deceased was sitting on 3 cot in theParshal, and it is very probable that the distance from the cot where the deceased was sitting to the place where the intruders Were standing might be about 20 feet.
That does not mean that the danger was the less real from the intruders, for they were almost at the' Parshal and but for the defence taken by the deceased, on the facts as they stood, there is little scope of any doubt that the intruders would have actually stepped Into the Parshal itself and when perhaps it would have been too late for the deceased to defend himself and his family. We do not think, therefore, that there is much sub-Stance in 'his argument advanced on behalf of the 'defence.
20. The next question which arises is whether if the deceased acted in the exercise of his right of private defence and if what he did was within the limits of law allowed to him in such a case, whether the accused had any right of self-defence- As observed earlier; if the deceased was acting in self-defence, then, of course, the accused would not have any right of self-defence.
To put it differently, If the deceased himself was the aggressor and was the first to attack, then the accused normally would have a right of self-defence. But, since as stated above the deceased was acting in self-defence, the question nest to determine is whether in these circumsances the accused would have any right of self-defence. In our view, there cannot be any right of defence against an get which is itself an act of lawful self-defence. (Reference may also be made in this connection to the observations to this effect in Mayne's Criminal Law of India, Third Edition at p. 465). The learned author, alter making the observations to the above effect, observes as follows!
'So if a robber or housebreaker by night is attacked in self-defence and kills the person who attacks him, he cannot plead 'hat he would otherwise have lost his own life, for this is one of the perils which the law attaches to his criminal act'. In other words, we have to see whether in this particular case, the accused himself was there for Ihe purpose of committing an offence or whether he was an innocent person and through a misconception of fact, in the circumstances narrated above, ihe deceased was under the apprehension of danger to his life.
In 'this connection, reference also may be made to the provisions of Section 98 of the Indian Penal Code, which are to the effect that when an act, which would otherwise be a certain offence, is not that offence by reason of any misconception, on the parj of that person, every person has the same, right of private defence against that act, which he would have if the act were that offence.
In this case therefore it is to the found whether, as stated above, She accused was on the spot innocently in exercise of any legal right to be there or as a licensee or whether he was there in the circumstances in which it can be said that he was there for the purpose of a criminal offence.
21. As stated above, if he was there on the spot for the purpose of a criminal offence, then,as We have discussed earlier he can have no right of self defence against the deceased provid-ed the deceased in exercising his right of self-defence against the intruders did not exceed the-limits' allowed to him under the Jaw. We have already stated earlier that in this ease there was no excess of the right of self-defence exercised by the deceased.
The question therefore arises whether the accused was innocently there. On this part of the question, before proceeding further it may be-stated that the onus of proof that the accused has acted in self-defence is on the accused himself. In this case, it may be stated that the accused has-not pleaded self-defence. All that he has stated was that he was not present at the time of 'She alleged offence at the spot.
The case of the accused was that he Carne On the spot after he received information about the injury on his brother Fulji, He has not raised a plea of self-defence at all. Nonetheless, it is open to the accused to plead selfilefenee, in case there is evidence, on record brought out either in the examination of witnesses or their cross-examination or in any other shape or form.
The evidence in this case shows, as stated earlier, that the accused and his brother Fulji (who happened to be the sons of ^the brother of the wife of the deceased) entered the Angan, that is,, the compound of the deceased between the hours of about 8 and 9, and in spite of the repeated challenges of the daughter-in-law of the deceased, that is, Gujali, and also thereafter of the deceased, the intruders gave no answer and; they did not disclose their identity nor did they make any attempt to go away. It is in Gujali's evidence that after the deceased struck Fulji with an arrow, the accused rushed towards the deceased with a Palia, which was in his hand-It appears, therefore, that at this, hour of time at a lonely spot where the house of the deceased was situated, the two intruders came, and on the evidence it is shown that at least one o| them was armed with a dangerous weapon like a 'Palia', and one of them with a bow and arrow with which the deceased was attacked. It is, therefore, not possible to say that the accused and his companion came there innocently,
On the contrary, the evidence discloses that they were on the spot for an ulterior object and very probably the apprehension which was in the mind of the deceased was correct, and that the motive could probably only be the purpose of looting. The evidence disclose these facts which would justify us to draw this inference as against them. There is nothing to destroy this obvious inference from the facts to show in the slightest degree that the accused and his companion came there for an innocent purpose.
In other words, it is not possible to say that there was any misconception of fact on the part of the deceased in the apprehension which he entertained of the probable danger which was like-ly imminent (sic) from the two intruders. Jn other words, it cannot be said that what the deceased bona fide thought were dangerous housetrespassers were in fact innocent friends legally entitled to be there and who in such circum-stances has a right of self defence because of a 'misconception of fact on behalf of the deceased in attacking them.
In these circumstances, it cannot be said that the accused had any right of self-defence, for the accused himself was there, as the evidence on record shows, for a criminal Purpose, for it one of the perils which the Jaw attaches to a criminal act of an accused person in these circumstances, namely exercise of right of private defence by the adversary who is the target of his 'attack. In these circumstances; in our opinion, there was no right of self-defence left in the accused. We agree with the conclusion arrived at by the, learned Additional Sessions Judge in regard to the guilt of the accused On the chargeof murder