1. Criminal Appeal No. 13 of 1962 has been preferred by the accused 1 and 2 against the conviction and sentence passed by the Additional Sessions fudge, Salem, imposing a sentence of rigorous imprisonment for 5 years on the first accused for an offence Under Section 304, Indian Penal Code and a sentence of rigorous imprisonment for one year upon the 2nd accused for an offence Under Section 324 Indian Penal Code. Criminal Appeal No. 330 of 1962 has been preferred by the State against the order of acquittal of 1st accused for an offence Under Section 302 Indian Penal Code and the complete acquittal of the 3rd accused Under Section 307 Indian Penal Code.
2. On an anxious consideration of the evidence and the probabilities of the case, we have come to the conclusion that the prosecution has not placed before the Court a true picture of the incident and the defence of the accused appears to be substantially true and probable, and that in any event the accused should be given the benefit of doubt. We are clearly satisfied that, on the prosecution evidence itself, the plea of self-defence raised by the accused has been amply made out. Before we proceed further it may be relevant to point out at the outset that the learned Sessions Judge in several portions of his judgment has disbelieved the evidence adduced by the prosecution as to the setting and the manner in which the occurrence took place and his own reasonings do not warrant the conviction of the accused. Even though the accused squarely raised the plea of self-defence and had also cross-examined the witnesses examined on the side of the prosecution making categoric and concrete suggestions about the accused's version of the case, and how the fatal injury was caused in the legitimate exercise of private defence, the learned Sessions Judge in his judgment has not even adverted to this plea. A reading of para 13 of the judgment of the learned Sessions Judge shows that the only question he posed before himself was whether the offence was one Under Section 300 Indian Penal Code Exception, 4, or one Under Section 304 Part II Indian Penal Code. The third alternative of the right of private defence which was the crux of the defence of the accused has been completely overlooked by the learned Sessions Judge.
3. The facts of the case may be briefly stated. The three accused are the sons of one Sidhan by his junior wife, while one Suruttayyan, P. W. 1, Velayyan, P. W. 2, Mari, P. W. 4 and one Perumal are the sons of Sidhan by his deceased senior wife. P. W. 1 had two sons, Ramalingam and Chinnathambi the latter being the victim, who died as a result of the stab injury. The father had effected partition between the sons of his first wife and those of his second wife, and they were living separately. The evidence shows that the relationship between the two sets of sons was anything but cordial, the father showing partiality towards the sons of his second wife. The father who is the talayari of the village appears to have been keen on the second accused taking his place as talayari and this aggravated the ill-feelings between the parties.
4. On the day prior to the occurrence the marriage of the daughter of a near relation, P. W. 12. was celebrated in an adjacent village and the father Sidhan and all the sons attended the marriage. P. W. 4 wanted a loan of Rs. 3 from the first accused for giving not (present) to the married couple which request for loan was flatly refused by the latter P. W. 4 was enraged at the refusal of accused to give this small sum as a loan. From the evidence it appears that accused 1 was living in the family house which is a tiled one. The nest day after the marriage 29th May, 1961, at about night meals time, the incident took place, and it is here we get two diametrically divergent versions as to what exactly transpired and under what circumstances and the exact place at which the stabbing took place. The first information report, Ex. P-2, given by P. W. 1, the father of the deceased was a very brief one and it merely stated that at about 8 p. m. on 29th May 1961 when P. W. 1 returned from shandy accused 1 to 3 abused P. W. 1 and quarrelled and that in the course of that quarrel accused 2 stabbed P. W. 1 whereupon the deceased ran to the spot and while doing so he was stabbed by the first accused. In Ex. P-2 it was further stated that accused 3, who was there slabbed P. W. 2 on the right side of his back.
In other words, the first information report, Ex. P-2 clearly proceeded on the footing as if nothing whatsoever was done by and nothing happened at the instance of, the party of the prosecution, and that it was a simple case of the accused party being unilateral sole aggressors. A major portion of the events and the true background of the case as unfolded in the course of the evidence adduced by the prosecution before the Committing Magistrate as well as before the Sessions Judge, was deliberately kept back and suppressed in the First Information Report. The importance of this aspect of the First Information report giving only a truncated portion of the incident will become apparent as we proceed further, and it is here that we find that the learned Sessions Judge substantially accepts the defence version of the case.
5. The evidence of the sons by the first wife of Sridhan, P. Ws. 1, 2 and 4, and the evidence of P. Ws. 3 and 6, grandsons of Sidhan (sons of P. W. 2, Vellayan) clearly shows that the provocation was all on the side of the prosecution, and that they are solely to blame for the incident. P. W. 4 appears to have taken a leading part and marched to the house of the first accused with his brothers and nephews, arming themselves with sticks and wanted to wreak vengeance against the first accused for his refusal to give a small loan of Rs. 3/- the previous day. P. W. 4 without any justification whatsoever insisted that the accused should then and there and forthwith vacate the family house at that night time, and when the accused offered to do so the next day in the morning the party of the prosecution would not yield and beat all the three accused with the sticks which the former carried with them.
The case of the accused is that it is in the course of this scuffle that accused I apprehended that the party of the prosecution would either beat him to death or cause grievous injury, and that in that dangerous predicament, purely as a measure of self-defence he stabbed the deceased with the butchuva which unfortunately proved fatal. That the three accused were beaten with sticks indiscriminately and that they sustained injuries as a result then cannot possibly be disputed. It is a matter which has been admitted in the evidence of the material witnesses for the prosecution. Immediately after the occurrence the first accused himself went to the village munsif and told the latter that the party of the prosecution beat the accused party with sticks. The doctor who examined them has also given three wound certificates, Exs. P-5 to Ex. P-7, respectively, relating to the injuries caused to accused 1, 2 and 3. Accused 1 had sustained three; injuries; accused 2 two injuries and accused 3 as many as 8 injuries.
6. In this main setting of the incidents, the only question that arises for determination is whether the prosecution party were the aggressors in the first instance in the sense that they beat accused necessitating as an instinct of self preservation in the first accused stabbing the deceased, or in any event, whether the first accused exercised a right of private defence Under Section 100 Indian Penal Code reasonably apprehending either death will ensue or grievous hurt would be caused to him by the prosecution party.
7. Regarding the facts of the case, as we observed earlier, the prosecution party not only gave a truncated version, suppressing an integral and inseparable part of the incident, but at the same time the evidence on the side of the prosecution has been established to be false and unreliable in several important material particulars. Serious discrepancies have been brought out and adverted to in the judgment of the learned Sessions Judge himself as regards the evidence for the prosecution before the Committing Magistrate and before the learned Judge. First, as regards the place of occurrence, the case of the prosecution that the incident took place in front of the house of P. W. S has been found to be false. The relevant portion of the evidence of P. W. 2 and P. W. 3 before the Committing Magistrate, marked as Ex. E-7 and D-9 respectively and the relevant portion of the evidence of P. W. 4 marked as Ex. D-15, clearly shows that the incident took place in front of the house of the first accused and we have no hesitation in accepting this finding of the learned Sessions Judge as amply borne out by the evidence.
8. Next, on the question as to which party assumed the role of aggressors, the matter is beyond any doubt whatsoever. Here again the admissions of the witnesses for the prosecution completely establish that the brothers and the nephews all gathered together in a body armed with sticks and went to the house of the first accused just about the time when ho had returned from the marriage party and insisted that the first accused should, vacate the family house, forthwith, that night itself. The prosecution story that the accused resorted to stabbing without any prior provocation or incident has been found to be false by the learned Judge. Before the Committing Magistrate, P. W. 4, the person, who was mainly responsible for the whole incident has deposed as follows:
'I asked accused 1 in front of his house. When I asked for a loan of Rs. 3 you refused to give me though you have Rs. 11 and that you vacate the common house and you could construct a different house (?) ...... Myself and accused 1 were quarrelling and abusing each other after accused 1 refused to vacate the house.'
P. W. S also has admitted before the Committing Magistrate that P. W. 4 went to the house of the first accused and asked him to vacate the house immediately. P. W. 6 has admitted that the deceased went and caught hold of the second accused, The learned Judge again did not accept the evidence of the prosecution that the prosecution party did not go armed with sticks, but that P. W. 4 alone pulled a slick from the roof of the house of the first accused. P. W. 1, the eldest son of Sidhan, has admitted in the Committing Magistrate's Court that the accused party were beaten with sticks (plural) and sustained injuries. The learned Judge also has adverted to the fact that M. O. 1 the slick produced did not appear to be a stick attached to a roof, and that besides P. W. 4, the other members of his party were also equally armed with sticks. It is again a matter of admission of the witnesses for the prosecution that they indulged in indiscriminate beating of the accused, as corroborated by the three wound certificates issued by the doctor, P. W. 8, in respect of the three accused.
On a consideration of the-discrepant and prevaricating answers given by the main witnesses for the prosecution in their evidence, in the light of their admissions and the broad probabilities of the case, we have absolutely no hesitation in coming to the clear conclusion that the party of the prosecution assumed the role of aggressors and beat the accused party and further threatened to cause serious and grievous injury. It was in such a situation that the accused had no option but to cause the injury in question purely in self-defence and prompted by instinct of self-preservation. We have equally no hesitation in stating that this is the only reasonable view of the evidence in the case. The conduct of the party of the prosecution in marching in a body armed with sticks and insisting upon the first accused to vacate the house during that night all on a sudden, when he had returned from the marriage party with guests, was most unreasonable and cannot be justified from any point of view. What is most extraordinary was, that the prosecution party followed this by beating the accused indiscriminately.
9. The learned Public Prosecutor, however, strenuously contended the evidence merely disclosed a free fight on both sides, and that therefore, there was no scope for invoking the right of self defence and that each party should take the responsibility for the respective injuries caused and the offences committed in the course of such a free fight. We are unable to agree with this contention. The doctrine of 'free fight' can apply when both sides mean to fight, and there is a pitched battle. In such a situation the question a, to who attacks and who defends in such a fight is wholly immaterial and it depends on the tactics adopted by the respective parties. There is no question of a free fight at all in the present case when as observed earlier the party of prosecution were the aggressors and what the first accused did was merely to defend himself. So far as the party of the accused is concerned they had not made any pre-planned scheme of fighting the other party. Reference can be made to the useful discussion of the law on this doctrine of free fight, in Parasram v. Rex : AIR1949All274 . It is enough to set out the following head-note:
'Even when both parties to a conflict come armed with lathis, if there be no evidence to show that they had made any pre-arranged plan of fighting out the dispute by force that day the party that attempted to strike the first blow must be deemed to do the aggressor, and the other party, if obviously in danger of an injury to the persons of its members, has a right to strike in self-defence.'
Reference may also be made to the recent judgment of the Supreme Court in Gajanand v. State of Uttar Pradesh, : AIR1954SC695 .
10. The learned Public Prosecutor also contended that in any event, the right of self-defence has boon exceeded in this case, and that the beating with the sticks by the party of the prosecution and the further threat to do so did not warrant the stabbing by the first accused. On the facts of the instant case, we see no force in this contention. On the facts we are clearly of the opinion that the case comes under either of the sub-clauses (1) or (2) of Section 100. As is often said, the law does not require a citizen to behave like a rank coward on any occasion and if a person is attacked with sticks he need not run away, and he would be perfectly justified in the eye of law if he holds his ground and delivers a counter attack, if the accused party is attacked by a party of men armed with sticks, and having no alternative but to defend himself to the best of his ability, the accused retaliates, he clearly acts in private defence, although in doing so he may inflict an injury which may prove fatal.
11. In Bhutnalh Dome v. Emperor, 13 Cal WN 1180 the facts were somewhat similar and the right of private defence was upheld. In that case an attack was made by the deceased and his party with lathis on the accused and his party, and a blow was struck on the head of the accused who thereupon used his lathi and inflicted on the deceased a blow which resulted in his death. It was held that a man in such a predicament cannot be expected to judge too nicely, and that having regard to all the circumstances, the assault on the accused was such as to cause reasonable grounds of apprehension that grievous hurt would, but for his action, have been the consequence of the attack that was being made upon him, and that the accused exercised a right of self-defence within the limits allowed by law.
12. A man who is assaulted is not bound to regulate or modulate his defence step by step according to the attack by the opponent. He need not run away and the law permits him to retaliate in defence and if in such conflict he happens to kill, such killing is justifiable.
13. In the State v. Satesh Sangma, , the right of private defence was upheld in similar circumstances. In that case, the aggressor in a furious mood already struck the accused twice with a bamboo and threatened to beat the accused further. The accused in defending himself gave a blow to the deceased on his head with a blunt instrument, causing the latter's death. It was held that in defending himself the accused cannot be expected to measure the force of his blow or avoid the - vital parts of the aggressor's body, and that the right of private defence has not been exceeded.
14. In In re Ammu Pujari : AIR1942Mad295 the law relating to the right of private defence and its limitations have been laid down by a Bench of this Court in the following terms:-
'When an accused person commits an act of violence upon another person in circumstances which prove that he is apprehending further violence from that person, nothing further need be proved to establish that he is acting in the exercise of his right of self-defence. Accordingly where the deceased struck the accused with a stick and was prepared to strike him a second time and the accused took out his knife and stabbed the deceased, it is wrong to throw upon the accused the burden of proving that he had in fact consciously exercised his right of self-defence when he used his knife.'
15. No hard and fast rule can be laid down to determine the amount of harm which is legally justifiable or permissible in law under the exercise of the right of private defence. Individual cases will have to be considered on its own peculiar facts. Section 100 does not require as a condition precedent that grievous hurt must be actually caused by the assailant for the right of private defence to come into play. The section only provides that the person claiming the right of private defence must be under a bona fide apprehension or fear that death or grievous hurt would otherwise be the consequence of the threatened assault, if he does not defend himself.
16. Learned Public Prosecutor also relied upon Section 105 of the Evidence Act and contended that the burden was upon the accused to clearly bring his case Under Section 100, I. P. C. It is undoubtedly true that when a person is accused of an offence the burden of proving the existence of circumstances bringing the case within Section 100 is upon the accused but the question really is when can the accused be said to have discharged this burden. One view to take may be that the burden is upon the accused to establish that the prosecution party were clearly the aggressors and that the accused merely retaliated in defence. The other view is that in criminal trial the important factor is that the accused is entitled to the benefit of every reasonable doubt and that as an offshoot thereof when the accused offers a reasonable excuse of his conduct, then even though he cannot prove his assertions they should ordinarily be accepted as true unless circumstances conclusively prove that they arc false. The Courts have taken the latter view as the sounder one entitling the accused to the benefit of doubt especially when the prosecution has not come forward with the true version but has suppressed a material and integral portion of the incident giving rise to a plausible plea of private defence.
17. We may first refer to the judgment of a Full Bench of the Allahabad High Court in Parbhoo v. Emperor : AIR1941All402 . It is enough to set out here the following statement of the law as held by the majority view in that case:
'In a case in which any general exception in the Penal Code is pleaded by an accused person and evidence is adduced to support such plea, but such evidence fails to satisfy the Court affirmatively of the existence of circumstances bringing the case within the general exception pleaded, the accused person is entitled to do acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the said general exception) a reasonable doubt is created in the mind of the Court whether the accused person is or is not entitled to the benefit of the said exception.'
The same view was taken by a Bench of Patna High Court in Narayan Raut v. Emperor, : AIR1948Pat294 where it was held that when the accused pleads the right of private defence it was not necessary that he must prove beyond reasonable doubt the existence of circumstance on which the right is founded, and that the accused need merely make out a prima facie case. It was also held that it was not necessary for the accused to lead evidence if he is able to establish what he seeks to prove by the evidence that is on record It is sufficient if he satisfies the Court of the probability of what he is called upon to establish.
Reference can be made to the following observations at page 296:
'In the present case the defence led no evidence to prove the circumstances on which they rely as a foundation for the exercise of the right of private defence, namely, that the prosecution party commenced the attack. It is not necessary for the defence to lead evidence if they arc able to establish what they seek to prove by the evidence that is on the record. If from that evidence ii. appears probable that the defence version is true, even though they have not proved the truth of their version beyond reasonable doubt. The circumstances which have been established by the prosecution in the present case do, in my opinion, raise a probability that the defence version is true. As I have already stated above, the prosecution party went on the scene armed, with the deliberate intention of dispossessing Narayan, who was in possession, and they inflicted injuries on Narayan and the men who were with him. Having done that, they have deliberately suppressed the fact that the}' did so. Every witness who was examined by the prosecution relating to the incident has desired that any injuries were inflicted on any member of the defence party. The fact that they considered it necessary to do so suggests the inference that they were aware of the fact that, if they admitted the injuries caused to the defence they would have to be prepared to state at what stage of the proceedings those injuries were inflicted, that is to say, whether they were inflicted before Narayan inflicted the fatal injury on Bhajha wan or after. A consideration of all the circumstances that have been proved, in my view, suggests the probability that the prosecution party were the aggressors.'
We arc of the opinion that these observations are clearly applicable to the facts of the instant case.
18. In this connection reference may also be made to the statement of law in Dhirendranath v State, : AIR1952Cal621 ,
'It is true that an accused person taking the plea of the right of private defence is not required to call evidence but can establish that plea by reference to circumstances transpiring from the prosecution evidence itself. But the question in such a case would be a question of assessing the true effect of the prosecution evidence and not a question of the accused discharging any burden.'
The next case we would like to refer is the judgment of a Bench of the Kerala High Court in Antony v. State, 1960 KLT 362. In that ease, the prosecution simply came forward with the story that in a toddy shop in the course of an exchange of hot words the accused gave a slap on the cheek of P. W. 1, that just then the deceased, Pylo, entered the toddy shop and caught hold of the accused and that in the scuffle, the accused gave a stab injury to Pylo which proved fatal, According to the accused, the incident took place in a different manner. His case was that when he went to the toddy shop after the day's labour P. W. 1 who was there beat him on the cheek declaring that P. W. 1 was waiting for him, and that in the scuffle when he attempted to catch hold of P. W. 1, the deceased Pylo came and caught hold of him and threatened to cause injuries to him, and also caught hold of the testicles of the accused, with the result that the accused with a view to extricate himself took out a small pen-knife and stabbed Pylo which resulted in his death. The right of private defence of the accused was upheld by the learned Judges. In emphasising the necessity for and the duty of the prosecution to put forward the entire story without any suppression, the learned Judges observe;! as follows:
'It is the duty of the prosecution not to sup press any facts favourable to the accused and not to indulge in embellishments and additions with a view to depriving the accused of his right of private defence, and it is the paramount duty of the Court to sift and scan the evidence carefully with a view to finding out the circumstances under which the accused had to use the weapon. In such a case the brief statements made by the deceased without specifying the circumstances in which the incident took place and the evidence of witnesses who seem to have made decided attempts to give a distorted version of the incident with a view to making out that the accused was in the aggressive, cannot be safely be acted upon by the Court.'
The learned Judges also took in view the fact that the witnesses for the prosecution gave discrepant and false versions with later embellishments made to the detriment of the accused: created very serious and considerable doubt in the mind of the Court as to the guilt of the accused clearly justifying his acquittal.
19. On the question of benefit of doubt the. learned Judges held that even if the accused had not succeeded in conclusively establishing that his version of the incident was the true one that can not justify the rejection of his plea in a ease like that where the prosecution evidence itself was such as to raise a reasonable doubt in the mind of the Court that occurrence might have taken place in the manner pleaded by the accused. The same view has been taken in a recent judgment in Gundicha Bhai v. State, 1963 (1) Cri LJ 700, by a Bench of the Orissa High Court. The learned judges have held that it is an accepted principle that the standard of proof on the part of the prosecution to establish the guilt of the accused beyond all reasonable doubt is not what is required of the accused person to establish the plea under any of the general exceptions of the Penal Code They have also held that, if after a review of the entire evidence on record, the Court finds that the plea of the accused is a plausible theory and that if the Court entertains a reasonable doubt in its mind as to the guilt of the accused he is entitled to the benefit of doubt, even though the accused person has not been able to fully establish his plea of self-defence.
It may also be noticed that in taking this view the learned Judges have applied the following statement of the law as laid down by the Supreme Court in Aher Raja Khimn v. State of Saurashtra. (S) : 1956CriLJ426 :-
'Now it may be possible to take two views of this statement but there are two important factors in every criminal trial that weigh heavily in favour of an accused person; one is that the accused is entitled to the benefit of every reasonable doubt and the other, and off-shoot of the same principle, explanation of his conduct, that even though he cannot prove his assertions, they should ordinarily be accepted unless the circumstances indicate that they arc false.'
The same view was reiterated by the Supreme Court in its latest judgment K. M. Nanavati v. State of Maharashtra, : AIR1962SC605 . Subba Rao, J., delivering the judgment of the Court has pointed out that there is really no conflict between the rule that the prosecution is bound to establish the ingredients of the offence and that the accused is entitled to the benefit of reasonable doubt, and the provision in Section 105 of the Evidence Act under which the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Indian Penal Code is cast upon the accused and the Court has prima facie to presume against the accused the absence of such circumstances The failure on the pan of the accused to conclusively establish all the circumstances bringing the case under the exceptions does not absolve the prosecution of its responsibility to establish the ingredients of the of fence and take away the accused's right to an acquittal on the basis of a reasonable doubt
In other words, the evidence though insufficient to establish the exception may be adequate and sufficient to raise a reasonable doubt in the mind of the Court about the guilt of the accused The following passage may be usefully extracted
'As in England so in India, the prosecution must prove the guilt of the accused, i e., it must establish all the ingredients of the offence with which he is charged. As in England so also in India, the general burden of proof is upon the prosecution; and if, on the basis of the evidence adduced by the prosecution or by the accused, there is a reasonable doubt whether the accused committed the offence, he is entitled to the benefit of doubt '
20. In the Orissa Case, 1963 (1) Cri LJ 700 (Ori), the main features of the case were somewhat similar to the instant case The learned judges while emphasising that the appreciation of a plea of self-defence, location of the place of occurrence and the sequence of events are two important vital considerations for fixing the culpability, have adverted to the fact that the witnesses in that case were all partisan witnesses and suppressed the material portion of the facts in the first information report. In that case also the prosecution did not refer to the first part of the incident, i. e., that the accused persons were also beaten and suffered injuries as a result of the assault by the prosecution party with lathis which fact however was admitted in the course of the evidence.
21. With respect we adopt the reasoning in the Kerala and the Orissa cases above referred as laying down the correct test for upholding a plea of self-defence Under Section 100 of the Indian Penal Code.
22. In conclusion we are clearly of the opinion that the defence version is true and in any event the accused are entitled to the benefit of doubt. The accused are not guilty of any offence and we accordingly acquit accused 1 and 2 setting aside their convictions and sentences. Criminal Appeal No. 13 of 1962 is allowed and Cri. App. No. 330 of 1962 is dismissed.