S.N. Modi, J.
1. Jaggi alias Jagdish, Kishanlal, Harbans and Niranjan were charged and tried by the Sessions Judge, Alwar for various offences Jaggi was convicted under Section 302, Indian Penal Code for the murder of Parma and under Section 324, Indian Penal Code for voluntarily causing hurt with a knife to Mst. Simbo The learned Sessions Judge sentenced Jaggi to imprisonment for life on the first count, and rigorous imprisonment for one year on the second count Both the sentences were ordered to run concurrently He, however, acquitted the other accused namely Kishanlal, Harbans and Niranjan for the offences under Sections 147, 302/149 and 307/149, Indian Penal Code. D.B. Criminal Appeal No. 595/1970 has been preferred by Jaggi alias Jagdish against his conviction and sentence under Sections 302 and 324, IPC Similarly, D.B. Criminal Appeal No. 714/1970 has been preferred on behalf of the State aoainst the order acquitting Kishan Lal, Harbans and Niranjan for the offences under Sections 147. 302/149 and 307/149, IPC. As both these appeals arise out of the same case, they are being disposed of together.
2. The prosecution case briefly stated is like this : On 21-9-1969; five persons namely. Jaggi, Kishanlal, Harbans, Niranjan and Subhas proceeded from Alwar in the tonga of Amar Singh, and reached Mst. Simbo's house situated in village Gajuki, six miles away from Alwar. Mst. Simbo is a prostitute. Jaggi and his companions went to her house in order to pass the night in her company. It is alleged that Mst. Simbo demanded her previous dues amounting to Rs. 60/- from Jaggi and his com pinions. The latter insisted to stay with her without making payment of the previous dues. When this talk was going on, Jaggi and his companions along with Mst, Simbo came out of the house to settle the matter. The prosecution case goes on that Mst. Simbo did not agree to allow Jaggi and his companion to stay with her during the night. Subhas then exhorted his companions to beat her as she was a 'badmah' lady. Kishanalal, and Harbons whereupon caught hold of Mst. Simbo and jaggi stabbed her with a Knife. Simbo raised cries and fell down on the ground. Seeing this, Jaagi and his companions le away from the place of incident. The cries of Mst. Simbo attracted P.W. 1 Mithu. Parma and P.W. 1 Nooruddin, who chased Jaggi and his campanions, Parma overtook Jaggi and caught him in his arms and grappled with him During the course of grappling Jaggi stabble Parmna in the abdomen with the knife Article 1 and fled away. Mithu P.W. 1 and Nooruddin P.W. 4, who were following Parma, and and who were armed with lathis continued running after Jaggi and bis companions, and succeeded in apprehending Jaggi and Harbans after dealing blows with lathis to them. Both Jaggi and Harbans, were then tied to a tree. PW 1 Mithu and PW. 2 Simbo then went to the Police Station Sadar Alwar, and lodged the First Information Report at 10:45 P.M. Investigation started and Jaggi and Harbans were handed over to the police Kishanial and Niranjan were also arrested, but Subhash absconded. He was therefore, not tried by the learned Sessions Judge. The victims, namely, Parma and Mst. Simbo were taken to the General Hospital, Alwar. Parma succambed to the injuries at the General Hospital, Alwar. Post-mortem examination on his Ccorpus was per formed by Dr. Bhargava, who found the following external injury:
Wedge shape punctured wound 3 c.m. x 1 c.m. x abdomen deep (10 cm) on the left side of the abdomen 8 cm. below and lateral (left) to the umbilicus, momentum was coming out.
On opening the abdomen, the Doctor found that the peritoneum was torn at the site of the wound, and petitioner cavity contained blood clots on the left side and lower abdomen. It was also noticed that small intestines were punctured 1 c.m. long at two places at a distance of 6 cm through and through. Faecal matter was coming out. There were cuts at three or four places in the mesentric vessels with presence of blood clots. According to the Doctor the death of Parma occurred due to haemorrhage and shock as a result of stab wound and injury to the intestines.
3. Dr. Bhagava also examined Mst. Simbo, and found the following injury on her person.
Incised wound wedge shape 3 cm x 1 cm x skin deep (1 cm) on the right inguinal area obliquely. The injury was simple and was caused by sharp-edged weapon.
4. At the trial, Jaggi, Harbans and Niranjan admitted having gone to village Gajuki on 21-9-1969 but denied having visited the house of Mst Simbo. Kishanial pleaded alibi The accused also put forward a story which was disbelieved by the learned Sessions Judge. The learned Counsel for the accused has not challenged the correctness of that finding.
5. The prosecution case mainlty rested on the testimony of the eye-witnesses, namely P.W. 1 Mithu, P.W. 2 Mst. Simbo, P.W. 4 Nooruddin and P.W. 5 Amar singh The learned Sessions Judge on a lengthy consideration and discussion of the statements of the above eye witnesses and other prosecution witnesses has arrived at the following important conclusions;
1. That the prosecution has failed to prove beyond reasonable doubt that Nirarjan accused was one of those who caught hold of Mst. Simbo; and that being so, the formation of unlawful assembly by the accused was not established.
2. That Jaggi inflicted injury on the right inguinal area of Mst. Simbo.
3. That Jaggi after causing simple injury to Mst. Simbo ran away and when Parma chased and caught him in his arms, Jaggi dealt a fatal stab blow with the knife in the abdomen of Parma.
4. Since Parma had the right to arrest Jaggi under Section 59, Cr.P.C., no right of private defence of person was available to Jaggi.
5. That the prosecution has failed to prove that Subhash bad exhorted Jaggi and his companions to beat Mst. Simbo or to; stab her with a knife.
6. That, though Harbans and Kishanlal caught hold of Mst. Simbo, they had no knowledge that Jaggi carried with him a knife and he would stab Mst. Simbo. No common interntion can, therefore, be attributed to Harbans and Kishanlal about the act of Jaggi in stabbing Mst. Simbo.
6. On the above findings, the learned Sessions Judge convicted Jaggi for the offences under Sections 302 and 324, IPC, and acquitted the remaining accused Kishanlal, Harbans and Niranjan.
7. We have heard the learned Counsel for the parties, and carefully perused the record We agree with the finding arrived at by the learned Sessions Judge that jaggi caused simple hurt to Mst. Simbo with a knife. The learned Counsel for the accused was not able to assail this finding which stands proved from the testimony of Mst. Simbo, the victim. She has deposed that Jaggi stabbed her after taking out a knife from the pocket of his 'payajama' We find no infirmity in her testimony. The medical evidence lends assurance to her testimony. In our opinion, her lone statement, in the circumstances of the case, is sufficient to sustain conviction of jaggi under Section 324, IPC.
8. The learned Counsel for the accused read cut to us the statements of PW 1 Mithu, PW 4 Noorudin and PW 5 Amarsingh and strenuously contended that it stands proved from the statements of these witnesses that none of them was in a position to see Jaggi stabbing Mst. Simbo. To our mind, the above contention is well founded.
9. According to the prosecution, Mst. Simbo was stabbed near the house of Pappu at point 4 shown in the site-plan Ex. P2. At the time of stabbing, PW 1 Mithu along with Parma was sitting in front of his Jhopari at point No. 3 shown in the site plan. PW 10 Amritlal, the investigating officer, has deposed that the distance between the jhopari of Mithu, and the place where Mst. Simbo was stabbed is 9 to 10 paces, i.e., 22 to 25 feet. It is also clear from the prosecution evidence that only source of light at the place of incident was either the lantern lying in the chowk in front of the house of Mst. Simbo or moon light PW 3 Simbo has admitted in her statement that there was of light in the house of Pappu at the time of incident. It is further clear from the statements of PW 1 Mithu and PW 4 Nooruddin that before Mst. Simbo was stabbed she was caught and taken into arms on all the sides by Kishanlal, Harbans and Niranjan Having regard to above facts, namely, the situation of the place where Mst. Simbo was Stabbed, source of light available at the place of incident, the distance from which PW 1 Mithu, PW 3 Nooruddin and PW 5 Amaringh witnessed the incident, and above all, the fact that Mst. Simbo was surrounded from all the sides by the accused, leave no room for doubt that it was not possible for these-witness to have seen clearly the actual act of stabbing Mst Simbo by Jaggi. We accordingly hold that neither the eye witnesses, nor the deceased Parma actually saw Jaggi stabbing Mst. Simbo, They came to know about the infliction of the injury to Mst Simbo when the latter raised cries and fell down on the ground.
10. We now turn to the incident which resulted in the murder of Parma. The prosecution evidence shows that as soon as Mst. Simho was stabbed and she fell down on the ground, the accused ran away leaving Mst. Simbo at the place of incident. It is further clear from the prosecution evidence that Parma, Mithu and Noorudin chased the accused in order to apprehend them. The prosecution evidence further shows that Parma was ahead of Mithu and Nooruddin Parma over-took Jaggi, caught him in his arms and grappled with him. It is further clear that Parma Was stabbed in the abdomen by Jaggi during the course of grappling or at the time when Parma caught hold of Jaggi in his arms.
11. The learned Counsel for the accused-appellants drew our attention to the statements of PW. 1 Mithu, PW. 4 Nooruddin and PW. 5 Amarsingh in order to show that none of these witnesses could see Jaggi stabbing Parma. We do not propose to deal with this point at length. Suffice it to say that the very fact that Parma received the stab injury in the abdomen at time when be was grappling and held Jaggi in his arms, leads to an irresistible inference that none else except Jaggi could inflict the stab injury. There is nothing to show that there was any other person persent near the place where the grappling Was going on between Jaggi and Parma. We, therefore, entirely agree with the finding of the learned Sessions Judge that it was Jaggi who stabbed Parma in his abdomen, and caused his death.
12. The next important question that arises for consicieration is whether Jaggi was entitled, in the circumstances of the case to cause death of Parma in exercise of right of private defence of the body. The learned Sessions Judge negatived this contention on the ground that the offence of causing injury to Mst Simbo was committed by Jaggi in the presence of Parma, and, therefore, Parma was entitled, to arrest or apprehend Jaggi under Section 59 Cr.P.C. We cannot accept this finding for, more than one, reason. In the first place, we have come to the conclusion that Parma and his companions PW. 1 Mithu, PW. 4 Nooruddin and PW. 5 Amarsingh were hot in a position to see the act of stabbing Mst. Simbo. That apart, Section 59, Cr.P.C. lays down the procedure as to when an arrest can be effected by a private person. It says; that any private person may arrest any person, who in his view commits a non-bailable and cognizable offence or any proclaimed offender, and without unnecessary delay, shall make over any person so, arrested, to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station. Thus, to enable the private person to effect the arrest of any person, it must be shown that the person arrested had committed not only congnizable offence but also a non-bulible offence in his presence. Here, in the present case, no non-bailable offence was committed by jaggi in stabbing Mst, Simbo. The act of Jaggi in stabbing Mst. Simbo amoun ted to an offence undsr Section 324, IPC which is a bailable offence. That being go even if the effence or crime causing injury to Mst. Simbo it believed to have been committed in the presence of Parma, the latter was not legally entitled to arrest detain or catch hold of Jaggi under the provisions of Section 59, Cr.P.C. The act of Parma in apptehendine Jaggi amounted to an assault with the intention, of wrongful confining him.
13. Now, Section 99 gives the right of private defence of person against any offence affecting the human body. Section 99 lays down that the right of of private defence in no case extends to the infliction of more harm than it is necessary to inflict for the purpose of defence. Section 100, with which we are concerned, is in these terms:
100. When the right of private defence of the body extends to causing death:
The right of private defence of the body extends under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:
Firstly - Such an assault, as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
Secondly - Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
Thirdly - An assault with the intention of committing rape;
Fourthly - An assault with the intention of gratifying unnatural lust;
Fifthly - An assiult with the intention of kidnapping or abducting;
Sixthly - An assault with the intention of wrongfully confining a person under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.
14. The present case squarely falls within the purview of Clause sixthly of Section 100 as there was an assault by Parma on Jaggi with the intention of wrongfully confining him. and the circumstances were such which would reasonably cause him to apprehend that he would be unable to have recourse to the public authorities for his release. It may be recalled here that Parma chased Jaggi and caught him in his arms with a view to apprehend him The subsequent conduct of Mithu and Nooruddin in tying him to a tree clearly shows that the intention was to prevent Jaggi to have recourse to the public authorities for his release.
15. The present case also falls within the purview of Clause Secondly of Section 100, IPC From the statement of PW1. Mithu, it is clear that on hearing the cries of Mst. Simbo to the effect that she had been stabbed with a knife, Mithu. Nooruddin and Parma chased the accused. Parma was unarmed, and was abead of Mithu. Nooruddin followed Mithu. It is further clear from the statement of Mithu and Nooruddin that both of them were armed with lathis. PW. 1 Mithu in his statement has admitted that while following Parma he was crying aloud, 'Parma, do not get nervous, we ate coming'. The statement of Nooruddin shows that when Parma had taken Jaggi in his arms, Nooruddin was at a distance of 50 paces, Amar singh was 10 paces behind him and PW. 1 Mithu was ahead of Nooruddin. These circumstances show that Mithu and Nooruddin who were armed with lathis, were running in order to help Parma in apprehending Jaggi; and, Mithu was loudly encouraging Parma not to become nervous. In the above situation, it can safely be inferred that when Jaggi found himself in the clutches of Parma, and saw Mithu and Nooruddin approaching him with lathis in their hands Jaggi had reasonable apprehension that he would be grievously hurt at the hands of Parma and his companions. Jaggi, therefore, had the right of private defence of the body, under Clause Secondly of Section 100, and that right extended to causing the death of Parma.
16. The question now arises whether the act of Jaggi fell within he restrictions prescribed by Section 99 It was urged on behalf of the State that the right of private defence hever extends to the inflicting of more harm than what is necessary for the purpose of defending; and, in this case, Jaggi inflicted more harm than it was necessary. We are of the opinion that this is not so Jaggi gave only one blow with the knife which he happened to have with him. He was full in the grip of Parma, and if, in the circumstances, the blow landed on the abdomen, it cannot be said that he inflicted more harm than was necessary for the purpose or his defence. As has been pointed out in Amjal Khan v. State : 1952CriLJ648 'these things cannot be weighed in too fire a set of scales or in golden scale.'
17. We, therefore, partly allow the appeal filed by Jaggi and hold that Jaggi had the right of private defence of person under Clause Sixthly and Secondly of Section 100, IPC, and he did not cause more harm than was necessary. We accordingly acquit him of the charge under Section 302. IPC and set aside the sentence of imprisonment for life awarded to him However, his conviction and sentence under Section 324, IPC shall stand.
18. We now take up the appeal filed by the State against the acquittal of Kishanlal, Harbans and Niranjan. The learned Sessions Judge recorded the finding that Niranjan was not one of those, who caught hold of Mst. Simbo. This finding is fully borne out from the evidence on record. Niranjan was, therefore, rightly acquitted.
19. As regards, Kishanlal and Harbans, the prosecution case is that they caught hold of Mst. Simbo and took her in their arms. The learned Public Prosecutor made a futile attempt to persuade us to hold that Kishanlal and Harbans knew that Jaggi possessed a knife, and the only purpose behind catching hold of Mst. Simbo by Kishanlal and Harbans was to facilitate the act of Jaggi to stab Mst. Simbo. The learned Sessions Judge has found against the prosecution that Subhash exhorted Jaggi and other compaions to beat Mst. Simbo or to stab her with a knife. There is also no evidence to suggest that Kishanlal and Harbans knew from before that Jaggi possessed a knife with him. In these circumstances, no vicarious liability could he fastened on Kishanlal and Harbans for the act of Jaggi under Section 34, IPC. The learned Sessions Judge, in our opinion, rightly acquitted Kishanlal, Harbans and Niranjan.
20. In the result, we dismiss the appeal filed by the State and uphold the acquittal of Kishanlal Harbans end Niranjan. The appeal filed by Jaggi alias Jagdish is allowed partly, as indicated above. Jaggi alias Jagdish is in jail He has already undergone the sentence awarded to him for the offence under Section 324, IPC. He shall, therefore, be set at liberty, if not required in any other case.