Aliyar Singh Vs. State of Bihar
EmailIndian Penal Code, 1860
Sections 101, 103 – Self-defence – Murder – Incident happening in lane as per prosecution – Shot fired – Conversely, cross case registered at the instance of one injured – Said injured having 9 injuries, including grievous injury – No blood traced at the place described by prosecution – No pellets found at that place – Blood found in courtyard of accused’s house – Injuries inflicted on the person of accused party not enough to excrete blood – Likelihood of the deceased party being attacked while in courtyard of accused – If right to private defence available – If so, had it been exceeded. Held that accused had the right to self-defence. Injuries on the person of accused party being grievous, there was apprehension of death or grievous hurt. Hence, there was no exceeding of the right to self-defence. Periasami’s case (JT 1996 (8) SC 449) referred.
Could it have happened in the manner described by the informant in exhibit A, or the incident would have happened in the manner described by the prosecution, is the crucial question to be considered now. The investigating officer did not find any blood mark at the place of occurrence which is described by the prosecution witnesses in this case, nor could he trace out any pellet or any other tangible material for showing that the place of occurrence would not have been the courtyard of the accused. On the other hand, PW7 – Shambhunath Singh – investigating officer said that he found bloodstains on the courtyard of the accused. The injuries sustained by Gurucharan Singh are not normally sufficient to excrete blood in such a manner as to leave blood marks on the courtyard. If that be so, the deceased and his brothers would have been attacked when they were in the courtyard of the accused’s house.
(Para 10)
Mr. B.B. Singh, learned counsel for the ~4~ state then made an alternative contention that the accused would have exceeded their right of private defence. On the fact situation, we are unable to fix the borders where the right of private defence would have extinguished. As long as the apprehension of death or grievous hurt persisted, the accused had the legal right to act in self-defence until the aggressors vanquish. It must be remembered that grandfather of the accused had sustained grievous injuries. Hence, they would have entertained reasonable apprehension that they would have been killed or at least grievously wounded. In the broad circumstances of this case, we are unable to say that the accused having had the right of private defence would have at any stage exceeded that right. (Para 12)
1. Ram Keshwar Singh was shot dead on the morning of 8.1.1980 around 6:00 a.m. Four persons including the present appellant Aliyar Singh were chargesheeted by the police for the said offence. All the four were convicted by the trial court for the offence under section 302 read with section 34 of the Indian Penal Code and sentenced each of them to imprisonment for life (we are told that one more person was originally in the array of accused but he died before the trial concluded). The convicted persons filed appeal before the High Court and the division bench by the impugned judgment confirmed the conviction and sentence passed on the appellant-Aliyar Singh while acquitting the three other persons.
2. The prosecution case in short is the following :
The family of the deceased was at loggerheads with the family of the accused and both families were residing in houses situated close to each other. A couple of days prior to the murder of the deceased in this case, an incident had happened in which members belonging to both families sustained injuries. The occurrence on 8.1.1980 happened in the above background. The deceased and his brothers (PW-2 Sipahi Singh, PW-5 Sudarshan Singh etc) were moving on the lane which abuts the houses of both families. All the accused were armed with lethal weapons including firearms and they attacked the deceased and his brothers. The shot fired by appellant Aliyar Singh hit on the back of the deceased and caused the fatal injury to which he succumbed on the same evening at the hospital.
3. PW5 – Sudarshan Singh is an eyewitness who narrated the prosecution case. The High Court declined to accept testimony of PW5 – Sudarshan Singh in so far as it concerned the other three accused, but learned judges of the High Court felt that there is no difficulty in relying on his testimony as against the appellant, particularly when it got adequate confirmation from the evidence of PW3 – Bahadur Sharma.
4. Mr. S.B. Sanyal, learned senior counsel arguing for the appellant Aliyar Singh read out the evidence of PW3 – Bahadur Sharma to support his contention that no court can possibly rely on the testimony of such a witness. Then he contended that the evidence of PW2 – Sipahi Singh (who said that he rushed to the scene of occurrence and heard the details of the incident from his brother PW5 – Sudarshan Singh) cannot be used as a corroborative material because PW2 – Sipahi Singh himself was very inimical to the accused (it is admitted that PW2 – Sipahi Singh is an accused in a cross case in which the complainants are the accused).
5. Be that as it may, we have to consider yet another facet of the case in order to ascertain whether the accused would have acted against the deceased in the exercise of right of private defence. Mr. B.B. Singh, learned counsel for the respondent – state contended that the accused themselves have not adopted any such plea, and therefore, the court should not normally advance such a benefit to the accused. In this context, we find it useful to refer to a decision of this Court in Periasami and Anr. v. State of Tamil Nadu (JT 1996 (8) SC 449). The following observation made by this Court is apposite :
“While dealing with the said alternative contentions, we have to bear in mind section 105 of the Evidence Act. A rule of burden of proof is prescribed therein that the burden is on the accused to prove the existence of circumstances bringing the case within any of the exceptions “and the court shall presume the absence of such circumstance.” The said rule does not whittle down the axiomatic rule of burden (indicated in section 101) that the prosecution must prove that the accused has committed the offence charged against. The traditional rule that it is for prosecution to prove the offence beyond reasonable doubt, applies in all criminal cases except where any particular statute prescribes otherwise. The legal presumption created in section 105 with the words “the court shall presume the absence of such circumstances” is not intended to displace the aforesaid traditional burden of the prosecution. It is only where the prosecution has proved its case with reasonable certainty that the court can rest on the presumption regarding absence of circumstances bringing the case within any of the exceptions. This presumption helps the court to determine on whom is the burden to prove facts necessary to attract the exception and an accused can discharge the burden by ‘preponderance of probabilities’ unlike the prosecution. But there is no presumption that an accused is the aggressor in every case of homicide. If there is any reasonable doubt even from prosecution evidence, that the aggressor in the occurrence was not the accused but would have been the deceased party, then benefit of that reasonable doubt has to be extended to the accused, no matter he did not adduce any evidence in that direction.”
6. Exhibit A is the FIR lodged by Gurucharan Singh, the grandfather of the appellant. It says that during the early hours of the day of occurrence, two persons belonging to the deceased party (PW2 – Sipahi Singh and Ram Sagar Singh) trespassed into his dwelling house and launched a massive attack on him, and that it triggered a commotion and later, he heard the sound of firing from outside the house.
7. We are told that exhibit A (FIR) had also been investigated into as a cross case by the same investigating officer and in that case, PW2 – Sipahi Singh and another were chargesheeted. The injuries sustained by the grandfather (Gurucharan Singh) are extracted below :
(i) Defused swelling of the left forearm with abrasion 4 cm x 2-1/2 cm on the dorsal aspect of 8 cm above the wrist joint.
(ii) Defused swelling of the left hand with abrasion between middle and ring finger.
(iii) Multiple fracture of both bones of left forearm.
(iv) Lacerated wound 3 cm x 1 cm into skin deep on posterior aspect of left side of vertex.
(v) Multiple scratches on the left outer with defuse swelling. (The witness could not read the word after the word “left outer”).
(vi) Three scratches on the dorsal – medial aspect of the right hand.
(vii) Two abrasions below the (P. 8 begins) the right knee joint.
(viii) One …….below the left elbow. The word after the word ‘One’ could not be read by the witness in the injury report.
(ix) Fracture of the left fibula bone.
8. These injuries were noted by PW8 – Dr. B.M. Singh, who examined Gurucharan Singh on the same morning…
9. If the incident had happened in the manner described in exhibit A, FIR, we have absolutely no doubt that the members of the family of Gurucharan Singh would have acted in exercise of their right of private defence.
10. Could it have happened in the manner described by the informant in exhibit A, or the incident would have happened in the manner described by the prosecution, is the crucial question to be considered now. The investigating officer did not find any blood mark at the place of occurrence which is described by the prosecution witnesses in this case, nor could he trace out any pellet or any other tangible material for showing that the place of occurrence would not have been the courtyard of the accused. On the other hand, PW7 – Shambhunath Singh – investigating officer said that he found bloodstains on the courtyard of the accused. The injuries sustained by Gurucharan Singh are not normally sufficient to excrete blood in such a manner as to leave blood marks on the courtyard. If that be so, the deceased and his brothers would have been attacked when they were in the courtyard of the accused’s house.
11. Looking at the conspectus of the case from the above angle, we are inclined to think that the appellant was acting in
exercise of right of private defence and that the accused were definitely not the aggressors.
12. Mr. B.B. Singh, learned counsel for the respondent – state then made an alternative contention that the accused would have exceeded their right of private defence. On the fact situation, we are unable to fix the borders where the right of private defence would have extinguished. As long as the apprehension of death or grievous hurt persisted, the accused had the legal right to act in self-defence until the aggressors vanquish. It must be remembered that grandfather of the accused had sustained grievous injuries. Hence, they would have entertained reasonable apprehension that they would have been killed or at least grievously wounded. In the broad circumstances of this case, we are unable to say that the accused having had the right of private defence would have at any stage exceeded that right.
13. In the result, we allow this appeal and set aside the conviction passed on the appellant, Aliyar Singh. We acquit him. We direct that the appellant be released from jail forthwith unless he is required in any other case.
