Paragraph numbers below are the court’s original numbering, recovered from the source text.
7. The accused-Manjeet Singh too was subjected to C medical examination, which was carried out by Dr. Dinesh Rana (PW.2) on 1st January, 2001 at about 5.55 p.m. The accused at the time of such medical examination complained of pain in the fifth knuckle region of the left hand. X-ray was advised. However, local examination revealed the presence of D a red colour contusion and swelling on such knuckle region. The accused also complained of breaking of upper incisor tooth. He was referred to Dental Surgeon. On the basis of dental opinion, such injury was opined to be of a simple nature having been caused within the probable duration of 24 hours.
8. Balraj, a companion of the accused, was also medically examined by Dr. Dinesh Rana (PW.2). Following injuries were found on his person: "(i) 4 cm 1 cm. abrasion over the dorsum of right fore- arm; (ii) 1.5 cm x 1.5 cm round abrasion red in colour, above the writ joint; (iii) 3.5 cm x 2 cm abrasion, read in colour with linear scratch in the mid. 3 cm outer aspect of the left knee joint; (iv) Multiple irregular abrasions on the entire lateral aspect of the left lower leg. Red in colour, and (v) Small irregular abrasion on the left side of the forehead. Red in colour." All the injuries were opined to be of simple nature having been caused with a blunt weapon within the probable duration of 24 hours.
9. The other companion of the accused, namely, Surender Kumar was medically examined by Dr. Rajneesh Sharma (PW.4) on 1st January, 2001 at about 4.35 a.m. One injury, that is, laceration over the fore-head 1.5 cm x 1 cm x 0.5 cm was found. He was smelling of liquor and there was slurring of C speech: The injury was simple in nature having been caused with a blunt weapon with the probable duration of 6 hours.
10. On having been produced by the accused, Carbine- Ex.P4 with empty magazine vide memo Ex.PW5/C were taken into possession by Gulam Mohammad(PW.26), Additional Station House Officer of Police Station Sadar, who had partially investigated the case. Six live cartridges Ex.P1 to P6 were also produced by the accused, which were taken into possession vide memo Ex.PW5/D by Gulam Mohammad(PW.26). Six empty cartridges were taken into possession from the spot by Gulam Mohammad(PW.26) vide memo Ex.PW5/E. Service belt of the accused, which was lying on the bed in the Hall of the Hotel was also taken into possession vide memo Ex.PW5/F.
11. The Ballistic Expert to whom the carbine, live and empty cartridges were sent for examination, vide report · Ex.PW25/E has opined that the empty cartridges were fired from the carbine Ex.P4.
12. On completion of the investigation the accused along with his two companions Balraj and Surinder Kumar were sent up for trial. The accused was charged for the substantive offences under Section 302 and 307 IPC, and under Section 27 of the Arms Act, 1959. His two companions, Balraj and Surinder Kumar, were charged for the offence under Section 114 read with Sections 302 and 307 IPC, for having abetted and instigated the commission of the offences under Section 302 and 307 IPC by the accused.
13. The accused and his two companions pleaded not 8 · gililty to the charge and claimed trial. The prosecution in support of its case examined as many as 26 witnesses,
14. The learned Additional Sessions Judge, on consideration of the evidence coming on the record, by the C . impugned judgment, convicted and sentenced the accused- Manjeet Singh as mentioned above.
15. The accused was acquitted of the offence under Section 307 IPC. The two companions of the accused, Balraj and Surinder Kumar were acquitted of all the charges framed against them.
16. By the· impugned judgment the High Court noticed the submission made on behalf of the appellant and on appreciation of the evidence on record dismissed the appeal and affirmed the conviction and sentences imposed by the Trial Court.
17. Learned counsel for the accused has assailed the conviction and sentence on the ground that the accused had acted in exercise of the right of private defence. It was submitted that the genesis of the occurrence was different from what the prosecution has suggested and highlighted. In fact, the occurrence had taken place in the manner suggested by the accused in his defence. The deceased and his companions G had made a forcible entry into the Hall of the Hotel and started beating the accused and his two friends and in such course they had tried to snatch the carbine, which got fired during the scuffle.
18. From the record, we find that neither the accused nor his two companions in the statements recorded under Section H 313 Cr.P.C., has stated that the deceased and his companions were the aggressors and that the accused was acting in exercise of the right of private defence. In fact, their case is that of total denial. There is nothing on the record to suggest that the accused or his companions received injuries at the hands of the deceased or the deceased tried to snatch the carbine of the accused. No evidence has been brought on record that the deceased and his companions entered the Hall of the Hotel with arms.
19. Under Section 96, IPC, "Nothing is an offence which is done in the exercise of the right of private defence". Right of C private defence of the body and of property has been enumerated under Section 97, IPC, subject to the restrictions contained in Section 99, IPC. As per the said section every person has a right to defend- "First. – His own body, and the body of any other person, against any offence affecting the human body; Secondly -The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass." Section 102, IPC, deals with commencement and continuance of the right of private defence of the body as follows: "Section 102. Commencement and continuance of the right of private defence of the body.- The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues." SUPREME CbU-RT REPORTS The extent and limitations of the right of private defence is prescribed under Section 96 to 106, IPC. Such a right can be exercised only to defend the unlawful action and not to retaliate.
20. This Court in George Dominic Varkey v. The State of Kera/a, (1971) 3 SCC 275, has held: "6 …… Broadly stated, the right of private defence rests on three ideas: first, that there must be no f}1ore harm inflicted than is necessary for the purpose of defence; secondly, that there must be reasonable apprehension of danger to the body from the attempt or threat to commit some offence; and, thirdly, the right does not commence until there is a reasonable apprehension. It is entirely a question of fact in the circumstances of a case as· to whether there has been excess of private defenc,e within the meaning of the 4th clause of Section 99 of the Indian Penal Code, namely, that no more harm is inflicted than is necessary for the purpose of defence. No one can be expected to find any pattern of conduct to meet a particular case. Circumstances must show that the court can find that there was apprehension to life or property or of grievous hurt. If it is found that there was apprehension to life or property or of grievous hurt the right of private defence is in operation. The person exercising right of private defence is entitled to stay and overcome the threat."
21. In Moti Singh v. State of Maharashtra, (2002) 9 SCC 494, this Court held that dimension of the injuries may not be serious, it is the situs of the injuries that would indicate whether G the accused could reasonably entertain the apprehension that at least grievous injuries/hurt would be caused to him by the assaulters unless aggression is thwarted.
22. In the present case during the course of cross- H examination of the prosecution witnesses, especially Jai Pal(PW.5}, Romi Kapoor (PW.6), Pawan Kumar (PW.7), Satish Kumar (PW.9) and Charanjeet Singh (PW.12) an attempt has been made on behalf of the accused to set up the case of private defence.
23. In Rajenqer Singh and others v. State of Bihar, (2000) 4 SCC 298, dealing with the similar proposition this Court held as follows: "Non-explanation of the injuries on the person of the accused, ipso facto, cannot be held to be fatal to the prosecution case. Ordinarily, the prosecution is not C obliged to explain each and every injury on the person of the deceased even though such injuries might have been caused during the course of the occurrence and they are minor in nature. But where the injuries are grievous, non-explanation of such injuries would attract the Court to look at the prosecution case with little suspicion on the ground that the prosecution has suppressed the true version of the incident."
24. Evidence of eye-witnesses, especially of the injured, namely, Jai Pal (PW.5), Romi Kapoor (PW.6) and Pawan Kumar (PW.7}, which are trustworthy, when read together, we find that non-explanation of the injuries on the person of the accused and his two companions cannot be held to be fatal to the prosecution case.
25. Satish Kumar (PW.9), an independent witness, who was also staying and sleeping in the Hall where the occurrence had taken place, though he was declared hostile, has admitted the correctness of the prosecution story in the following terms: "It is correct that when I woke up on hearing the noise, I saw a boy coming in the hall and inquiring about the Manager from the accused Manjit. It is correct that one of the associates of accused Manjit, i.e., one driver stated that we are not Chowkidar, so you tell the Manager. It is correct that upon this accused persons started beating that boy and thereafter other associates of that boy also came in the hall of that hotel after about 5-7 minutes." In answer to Court question, PW.9 has staect: "The driver who was with accused Manjit was heavily drunk and was also abusing the other party and Manjit accused tried to prevail upon him and thereafter said driver attempted to assault those 4-5 persons present in the hall and thereafter free fighting between the parties." c The above statement of Satish Kumar (PW.9) lends support to the prosecution story to show that it was the accused who was the aggressor and that the accused had not acted in private defence.
26. The question now requires to determine is as to what is the nature of offence that the accused has committed. The evidence produced against the accused does not show that the accused had any motive to cause death of the deceased or have intended to cause such bodily injuries which were sufficient in the ordinary course of nature to cause the death of the deceased. Evidence on record also does not establish that the injuries caused on the body of the deceased must in all probability cause his death or likely to cause his death. On the spur of the moment, during the heat of exchange of words F accused caused injuries on the body of the deceased which caused his death. Therefore, the ingredients of the murder as defined in Section 300, IPC, have not been established against the accused. In our opinion, the accused was guilty of culpable homicide not amounting to murder under Section 304, IPC, and G considering the fact that the accused had no intention to either cause the death of the deceased or cause such bodily injury as is likely to cause death of the deceased, it would be sufficient to impose on accused a sentence of seven years rigorous imprisonment and to impose on him a fine of Rs.5,000/ – and in default of payment of fine, a further imprisonment of six months.
27. We, accordingly, set aside the conviction of the accused under Section 302, IPC but hold him guilty of the offence under Section 304, IPC and sentence him to seven years rigorous imprisonment and fine of Rs.5,000/-, in default of payment of fine a further imprisonment of six months. The conviction and sentences for the offence under Section 324, IPC and Section 27 of the Arms Act passed by the_ Trial Court are affirmed. All the sentences shall run concurrently. If the accused-Manjeet Singh has not yet undergone the sentence imposed and affirmed by us, and is not in custody, he be taken into custody to serve the remainder.
28. The appeal stands disposed of with the above observations and directions. Rajendra Prasad Appeal disposed of.