K.D. Sharma, J.
1. This is an appeal filed by Roopsingh against the judgment of the learned Sessions Judge, Balotra dated 23-9-74 by which, the appellant was convicted under Section 302, IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 100/-, in default of payment of fine, to further suffer rigorous imprisonment for one month.
2. The prosecution case against the appellant was as follows: Roop Singh appellants is grazing his she-goast neasr the boundary wall of his field on 30-5-1973 at about 5.30 p.m. On the boundary wall of his field, there was a tree of Arana. When the appellant was trying to cut branches of this tree, Bhuribai deceased came there having an iron pan in her hand On seeing the appellant cutting the branches of Arana tree, she asked the former why he was cutting the branches of a tree which was standing in her field. The appellant replied that the tree was standing in his field and so he was cutting its branches. There upon, Mst. Bhuribai deceased caught hold of the shirt of the appellant and pulled it as a result of which, the shirt was torn. This led to exchange of pushes and grappling between the two. The appellant there, upon struck a violent blow with his axe on the neck of Mst. Bhuribai and immediately thereafter, inflicted another blow on her head with the same axe. The result of these two injuries was that Mst. Bhuribai fell down and he injuries began to blood profusely. The appellant also received stains of blood on his shirt, axe and its wooden handle. Mst. Bhuribai shortly afterwards succumbed to her injuries there and then at the spot. When the appellant was striking blow on the body of Mst. Bhuribai, Oatsingh had come there to rescue the victim of assault but out of fear of being beaten by the appellant, he ran away from there. This incident was eye-witnessed by Balwantsingh Chothia and Pharotia from some distance. After Mst. Bhuribai had died, Roopsingh appellant rushed to the police having the axe in his hand. On the way, he met Amarsingh to whom he disclosed that he had killed Kan Singh's nether with the axe and next it was the turn of Kansingh to be killed. Roopsingh then went to police-station Siwana and made a verbal report of the incident to the police the very day at 6.40 p.m. and predated the axe.
3. Upon receiving information of murder from the appellant, the police registered a criminal case under Section 302, IPC on 30-5-1973 and took tip usual investigation into the matter. In the course of investigation the appellant was arrested and the axe which he produced before the police, was seized and sealed properly in the presence of motbirs. The shirt which the appellant was wearing on his body was also taken into possession and sealed by the police. Khushalsingh SHO then went to the place of occurrence, inspected the site, prepared a site inspection memo and a site plan and took into his possession one pair of shoes, one iron pan belonging to the deceased. The dead body of Mst. Bhuribai was sent to Siwana Government Dispensary for post-mortem examination. Dr. S.M. Mehta conducted an autopsy over the dead body and found the following ante mortem injuries on it,-
1. Incised wound 12 cm 2 cm (width at middle tapering gradully at both the ends), on face and neck 2 cms, below the left ear lobule Depth of the wound was 2 cms at anterior end, 7 cms. at middle and 5 cms. at the posterior end. Direction of the wound was) medially, forwards and slightly downwards. Along with soft tissues injury associated with firm blood clots, there were fractures of-
(a) Mandible on left Side just above the angle cutting the whole width through and through the whole thickness.
(b) 5th cervicle vertebra Cut from left side horizontally with slightly down wards towards right side cutting the spinal cord completely. Right side of body vertebra was Cut partially.
2. Incised wound 8 x cms over head 5 cms. above the right ear. Direction was forwards and medially. Similar and corresponding cut was present in right parietal bone cutting whole thickness. It is associated with laceration of brain with meninges for about 2 cms near the posterior end of the wound. There was a hard blood clot of the size 4 x 2 x 1 cms. between skull bone and durameter over the brain laceration. Brain and meninges were heavily congested around the laceration for an area of 8 x 10 cms.
Both the injuries were grievous in nature and were caused with sharp edged weapon such as an axe in the opinion of the doctor. The doctor definitely opined that the death of Mst. Bhuribai occurred on account of coma and shock caused by brain and spinal injuries, He further opined that the two injuries cumulatively as well as individually were sufficient in the ordinary course of nature to cause the death of Mst. Bhuribai. The appellant expressed his desire to confess his guilt. So, he was sent to judicial custody and his confessional statement was recorded by Sukhvirsingh, SDM, Balotra on 7-6-73 The SHO sent the axe, the shirt of the appellant, blood smeared soil, control soil, one Ghaghra, one Kanchali and one Odhana of the deceased to the Assistant Director (Biology), Police Forensic Science Laboratory, Jaipur for detection of blood. The Assistant Director, upon analysis, found the afore said articles stained with blood. He sent blood-stained cuttings and samples from the exhibits to the Serologist for further analysis but there is no report of the Serologist available on the record to show that the articles were positive for human blood. Tae SHO collected other necessary evidence in the case and, eventually, filed a charge sheet against the appellant under Section 302, IPC in the court of the Munsif Magistrate, Balotra. The learned. Magistrate held an enquiry, preparatory to commitment and upon finding, a prima facie case exclusively triable by the Court of Sessions, committed the appellant to the Court of Sessions Judge Balotra for trial under Section 302, IPC. The learned Sessions Judge tried the appellant for the offence of murder and convicted and sentenced him in the manner stated above. Aggrieved by his conviction and sentence, the appellant has preferred this appeal.
4. We have carefully perused the entire record and heard Mr. Doongarsingh learned Counsel for the appellant and Mr. N.S. Acharya, Public Prosecutor for the State.
5. It has been contended before us by Mr. Doongarsingh that the prosecution could not prove the guilt of the appellant beyond reasonable doubt, because it transpires from the prosecution evidence itself that the appellant caused two injuries to the deceased with axe in exercise of his right of private defence of person and property. It was further urged that even if the plea of right of private defence of person and property is negatived, there is sufficient material on the record to show that the appellant committed the crime under grave and sudden provocation with was offered to him by the deceased Mst. Bhuribai. Lastly, it was urged that even if the prosecution evidence is believed at its face value, the case against the appellant clearly falls within exception four to Section 300, IPC as the act was done by him without pre-meditation, in a sudden fight, in the heat of passion upon a sudden quarrel and without taking undue advantage or without acting in a cruel or unusual manner, Mr. N.S. Acharya, Public Prosecutor, on the other hand urged that the act of the appellant clearly fell under clause three of Section 300, IPC because he intended to cause such, bodily injuries to, the deceased as were sufficient in the ordinary course of nature to cause her death. It was further argued by the learned Public Prosecutor that from the facts & circumstances brought on the record, no right of private defence of person or property could legitimately accrue to the appellant nor could it be reasonably held that he killed Mst. Bhuribai under grave and sudden provocation offered to him by her. According to the learned Public Prosecutor, the case of the appellant is also not covered by exception four, to Section 300, IPC because he took undue advantage by striking violent blows with an axe on the vital parts of the body of unarmed deceased without any lawful excuse.
6. We have considered the rival contentions. At the Outset, we may observe that the prosecution has led direct evidence to prove the connection of the appellant with the crime. As many as three reliable witnesses have been examined by the prosecution at the trial to establish that no other person but the appellant hid caused fatal blows to the deceased with a sharp edged axe. The eye witnesses are Oatsingh PW 1, Bharatia PW 8 and Chothia PW 9. Oatsingh PW 1 claimed to have seen Roopsingh appellant striking three blows on the held and one blow on the neck of Mst. Bhuribai with an axe from a distance of 60 panwadas. He further claimed to have gone to the rescue of deceased but Roopsingh ran after him. So, out of fear, he disappeared from the scene. Similar is the evidence of Bharatia PW 8 and Chothia PW 9. These two witnesses also claimed to have seen the appellant inflicting blows on the body of Mst. Bhuribai with an axe. The aforesaid three eyewitnesses have clearly implicated the appellant in the commission of the crime and we see no reason to disbelieve their evidence, as it has not been shaken at all in cross-examination by the learned Counsel for the appellant. Apart from his, Bharatia and Chothia eye-witnesses were not on Inimical terms with the appellant prior to the occurrence. The mere fact that Bharatia and Chothia were doing work at Kansingh's well on daily wages is not sufficient to treat them as interested witnesses, especially when they were not related to either party. Oatsingh PW 1 no doubt is closely related to Kansingh, son of the deceased but mere relationship with the deceased is no ground for outright rejection of his evidence, especially when his presence at the time and near-about the place of occurrence could not be doubted.
7. The prosecution examined Balwantsingh PW 7 also in support of its case but, in our opinion, Balwantsingh was not an eye-witness to the actual commission of the crime, because he could not see the appellant striking blows on the body of the deceased from a distance of 126 panwadas which are equal to 252 paces. Apart from this, Balwantsingh admitted that he was informed about the occurrence by his brother Oatsingh also testified to this fact by stating that Balwantsingh came to know about the occurrence only when he had received information from him (Oatsingh). Consequently, we differ from the learned Sessions Judge that Balwantsingh also has seen the appellant committing the crime. As stated earlier, the guilt of the appellant has been conclusively established by cogent and unimpeachable evidence of Oatsingh PW 9 eye-witnesses whose evidence does not suffer from any infirmity.
8. Apart from the evidence of the three eye-witnesses, there is the confessional statement of the appellant which he made before the Sub-Divisional Magistrate, en 7-6-1973 and which was repudiated by him at a later stage. The learned Counsel for the appellant retracted his confessional statement at the earliest opportunity by staling that it was not free and voluntary and was preceded by threats and inducement held out to him by the police. The above contention is devoid of substance. There is no material on the record to show that the appellant was persuaded or coerced to make a confession by any person in authority. On the other hand it appears from the record that the appellant was sent to judicial custody on 4-6-1973 after he expressed his desire to make a clean breast of him and thus he was given no less than three days to decide whether or not to make a confession. It further appears that before proceeding to record the confession, the Sub Divisional Magistrate put certain questions to the appellant and issued requisite warnings to have an assurance of the fact that the confession which he was going to make was not an outcome of any inducement, threat or promise, from the side of the police or from any other person in authority having reference to the charge against him as mentioned, in Section 24 of the Indian Evidence Act. Then the Sub-Divisional Magistrate recorded the confessional statement after taking care to see that the requirements Sections 164 and 364 Cr.P.C. were fully satisfied. The appellant's mere assertion that he was coerced, tutored or induced by the police to make the confession cannot be relied upon as true, in the absence of any material on the record. Thus the confession was not only proved to be voluntary but it has also been established that it is true. In the confessional statement the appellant disclosed that at about 5 p m. he was cutting branches of Arana, tree with an axe for grazing this she goats. At that time the deceased came there and asked him not to cut the branches of the tree. This led to a quarrel. The deceased caught hold of his kurta i.e. shirt and tore it and grappled with him There upon, he struck blows on her head and neck with the axe as a result of which she fell down and her wounds began to bleed When we compare the above confessional statement with the evidence of the three eye-witnesses and the probabilities of the case, there is no escape from the conclusion that the confession made by the appellant bears a ring of truth especially when immediately after the occurrence the appellant himself went to the police station and made a first information repot t about the incident and produced the blood stained axe.
9. It is no doubt true that some corroboration to the retracted confessional statement of the appellant is required as a rule of prudence before convicting him on such a statement, but as stated earlier such corroboration is not Jacking in this case. The reliable evidence of the three eye-witnesses provides ample corroboration to the confessional statement of the appellant in all material particulars. We have, therefore before us sufficient materials for holding that no other person but the appellant was responsible for causing fatal injuries to the deceased with an axe at the time and place alleged by the prosecution.
10. The next pertinent question that requires consideration is what offence is made out against the appellant upon the evidence of the eye-witness and his confessional statement. The contention put forward by the learned Counsel for the appellant is that death of Bhuribhai was caused by the excessive exercise of the right of private defence of person and such a category of private defence is dealt with in exception 2 of Section 300 IPC which reads as follows:
Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person or property exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence.
We have given our anxious consideration to the above contention. At the out set we may observe that the applicability of this exception can arise only when the appellant acted in exercise of the right of private defence of his person, because, if he himself played the roll of an aggressor, obviously no right of private defence of person could accrue to him. Hence it has to be ascertained whether the appellant acted in defence. It is admitted by Oat Singh PW 1 in his cross examination that Bhuribai deceased came to the place of occurrence & asked Roop Singh appellant not to cut the branches of 'Arana' tree, and, when Roop Singh did not stop cutting the branches, she, tore his shirt and thereafter the two grappled with each other. The appellant also stated in his confession that the deceased first caught hold of his shirt and grappled with him. Thus there is evidence on the side of the prosecution showing circumstances from which an inference may be drawn that the appellant could have only a reasonable apprehension of hurt and not of grievous hurt and so he was not entitled to cause death of the deceased by giving her two violent blows with an axe. The use of axe by the appellant during the course of assault made on him by the deceased who was unarmed clearly indicated that the appellant while exercising his right of private defence of person exceeded his right and caused more harm than was necessary in the circumstances of the case. In this connection we may refer to Section 101 IPC under which the right of private defence of the body extends to causing of any harm short of death subject, however, to restrictions mentioned in Section 99 IPC.
11. Mr. N.S. Acharya Public Prosecutor for the State however, strenuously urged that the appellant was not entitled to benefit of exception 2 to Section 300 IPC because while causing fatal injuries to the deceased he was actuated by an intention to punish the latter with a vengeful motive and not because he felt the necessity to use the weapon for his protection. We are unable to accept the above contention. As stated earlier the appellant was cutting branches of 'Arana' tree standing on the boundary wall which lay in between his field and the field of the deceased. He was not in any way responsible for imaging about the assault made on him by the deceased. It was the deceased who cams in a state of excitement to the place where he was putting the branches, and who first caught hold of his shirt and tore it by Dulling and then being determined to use violence grappled with him. In these circumstances the only impulse operating on the mind of the appellant was to defend his person by extricating himself from the grip of the deceased It cannot, therefore, be safely held in the absence bf any evidence to the contrary that the appellant took advantage of tip right of private defence and caused death of the deceased out of vengeance. The deceased was closely related to the appellant. Although there was some dispute between the appellant and Kari Singh son of' the deceased over trees standing on the boundary wall and over agricultural land, but, the dispute was not of such a nature as to lead to an inference that the appellant wanted to take away the life of Kan Singh or his anther Bhuribai deceased with vengeful motive. In our opinion, there being occasion to exercise right of private defence of person, the appellant far exceeded the right, and, the degree bf force used by him, was unjustifiable though the only impulse operating; on his mind was to use the weapon for his protection and not to take advantage of the right of private defence to kill the deceased out of spite or illwill. His act of causing serious injuries to the deceased, therefore clearly falls under exception 2 to Section 300 IPC and he is guilty under Section 304(1) IPC.
12. In this view of the matter, the contention raised by Mr. Doongar. Singh learned Counsel for the appellant that the act done by the appellant falls either under exception 1 to Section 300 IPC or under exception 4 thereof is not acceptable, because, there is no material on the record that the appellant was deprived bf the power of self control by grave, and sudden provocation offered to him by the deceased or that her committed the act in the heat of passion in a sudden fight upon a sudden quarrel. Hence for the foregoing reasons we have no doubt in our mind that the appellant' exceeded the right of private defence of person and was guilty of culpable homicide not amounting to murder punishable under Section 304(1) IPC.
13. We, therefore, partly accept the appeal filed by Roop Singh and alter his conviction from under Section 302 IPC to one under Section 304(1) IPC & sentence him to undergo rigorous imprisonment for 8 years and to pay a fine of Rs. 100/-. In default of payment of fine, he shall further suffer one' month's rigorous imprisonment. The appellant is in jail. He shall serve out the sentence. However, the period of detention undergone by the appellant during investigation, enquiry or trial of this case and before the date of his conviction shall be set off against the term of imprisonment imposed on him by this Court.