Th4ir Workmm v. STATE OF PUNJAI

attempted to strangulate him whereupon the took out his kirpan and struck B in self defence. The Sessions Judge disbelieved the prosecution evidence and acquitted three other accused persons ; but he convicted the appellant under s.304 Part II Indian Penal Code relying on a part of his statement in which he admitted having strick blows but rejecting the part that B attempted to strangulate him. He held that the only apprehension which the appellant could 'have was of simple hurt which did not give him the right to eause the death of B. On appeal the High Court confirmed the conviction. Held, that the conviction of the. appellant under s.304 In convicting Part II Indian Penal Code could not stand. the appellant the courts l>elow had accepted a case which was not the case of the prosecution but had relied only upon a part of the statement of the appellant made in his qefence. It was not open to the courts to dissect the statement and to pick o•lt the incriminating part and. to reject the excul· patory part on the ground that it was not supported by evidence. If in his statement the accused confesses to the commission of the offence charged he may be oonvicted upon that confession, but if he does not confess and sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement can only be taken into consideration in its entirety. Taking the statement ot the appellant in its entirety, he had an apprehension that i w.as attempting to strangulate him and this gave him the right of defence of person extending even to causing the death of the assailant. CRIMINAL APPELLATE JurusnroTlON: Criminal Appeal No. 218 of 1959. Appeal by special leave from the .Tudgm.ent and order dated September 8, 1959, of the Punjab High Court in Criminal Appeal No.354 of 1969. Frank .Anthony, K. 0. Agarwala and P. O. Agarwala for the appellant. R. K. Khanna and P. D. Menon, respondent. for the

#1962. August 21. The Judgment of the Court was delivered by 680 SUPREME COURT REPORTS Ll963] . 1901 JV ar"ain s ingl~ .... ·. v . ~tati t>j Pun}ab . $heh J. SHAH, J.--After arguments were concluded. in ' ·this appeal we ordered that the appellant Narain t)ingh be acquitted of the offence under s. 304 Part II of the Indian Penal Code of which he wag convicted and the sentence passed on him be set as1qe. We proceed to set out our reasons in support of ~he order. ' '· Narain Singh and bis three nephews-Mebar Singh, Mewa Singh and Pakhar Singh-were tried before the Court of Session, Ludhiana for offences punishable under s. 302 read with s. 34 of the Indian Penal Code, on the charge that on October 31, 1958, they had in furtherance of their common intention caused the death of one Bachan Singh by making a murderous assault on him. injuries. According The prosecution case was that in the evening of October 31, 1958, when Narain Singh and his three nephews were irr.igating their field, Bachan Singh diverted the flow of water into hiS own filed. Narain Singh and bis nephews were thereupon enraged, and there was a quarrel between them and' Bachan Singh. Narain Singh and his nephews made an attack upon Bachan Singh and caused him serious to the prosecution, .Mehar Singh at the time of the assault was armed with a spear, Pakhar Singh with a Kaholi, Mewa Singh with a salang and Narain Singh with a stick. A complaint was lodged about the assault with the police, and Bachan Singh was removed to the Civil Hospital, Ludhiana. The Sub-Inspector of Police investigating the caee recorded the statement of Bachan Singh, and a First Class Magistrate of Ludhiana recorded his declaration on the evening of November 2, 1958. Bachan Singh died on November 3, 1958. Narain Singh and. his nephwes were then prosecuted · before the Court of Session Ludhiana for the offence of murder. At the trial, Narain 3 S.C.R. SUPREME CJ9URT REPORTS 681 Singh pleaded that he bad acted in exercise of the right of self.defence and had caused injuries to Bachan Singh because the latter had thrown him down and had attempted to strangulate him. His statement in the Court of Session, on which he was convicted, was as follows :- 1961 Narain Sinth v. 8tat1 of Punjab Shah J. "The correct facts are that whfln I objected to the "deceased cutting the nakka he caught holtl of me and threw me on the ground. I was alone at the time. The other three co-accused were not with me. After I had fallep. on the ground the deceased attempted to strangulate me. I was then wearing small kirpan. I unsheathed it and used it in self defence.causing a couple of injuries to the deceased on the alarm raised by me, (my co-accused) who was Meha.r Singh coming from the khal nearby, came to the spot and rescued me. He was armless and did not cause any injury to the deceased. I did not carry any stick but was wearing a . small kirpan as usual," ., Pakhar .Singh and Mewa Singh denied their presence at the scene of offence. Mehar Singh claimed that he was present at the scene, and he had tried to inter vene and 11eparate Bachan Singh and N arai!J Singh~ Narain Singh and Mehar Singh relied upon the circumstance that they also had injuries on their person whioh were noticed when they were medi cally examined. Narain Singh had six contused injuries and Mehr Singh had one incised injury and four abraded contusions. Before the Court of Session,, Jagir Singh-a. witness for the prosecution ma.de important variations in his story as originally related by him in his complaint at the police station. Kaka, who, it was claimed by the prose cution, was an eye-witness, did not support the case " for the prosecution. Hakku, another witness, was ~ 1961 N<Jf'ain Singh v. Btate of Punjab Sho,h J. • 682 SUPREME COURT REPORTS [1963] for cross·examina ti on". One not examined by the proseoutor, but' was merely "tendered J ohri whose name was not mentioned in the complaint was also examined by the prosecutor. Two state ments of Bachan Singh ·which were in view of his death admissible as dying declarations-one recorded by the Investigating Officer and the other by the First Class Magistrate, Ludhiana-were also tendered that the in evidence. 'l'he Sessions J uiJge held evidence of J agir Singh was unreliable and 1 hat Johri could not have witnessed the assault. The two dying declarations were, in the view of the Judge, unreliable, for Bachan Singh had before he made the statements ample opportunity to know how the investigation was proceeding, had consulted Jagir Singh and had opporunity of discussing with him the case to be set up. Again, the story set up in the dying declarations furnished no explanation of the injuries received by Narain Singh and Mehar Singh. The medical evidence was also not helpful to the case for the prosecution, Bachan Singh had four incised injuries on his person, three on the ches~ and the fourth on the "ring finger left side". ·None of these injuries could be caused with a salang or a kaholi: the incised injuries could be caused by a spear and also by a kirpan. Therefore in the yiew of the Sessions Judge the oral and other evidence was insufficient to sustain the charge of murder against the three nephews of Narain Singh. Relying, however, upon the statement . made by Na.rain Singh he held injuries on the person of Bachan Singh were caused by the former. He observed that the marks of injuries on· the person of Narain Singh «bore out his suggestion that B11cha.n Singh had obtained strong hold upon him with a view to strangulate him". But there was not •an iota ·of evidence on the record to proTe that Bachan Singh had attempted to strang ulate him". In the view of the Sessions Judge • .• 3 S.C.R. SUPREME COURT REPORTS . 6S3 there being no marks of injury, however slight, around the throat of Narain Singh and that he had not made a complaint to the medioal officer who had examined him shortly after the assault "it was apparent that Narain Singh could have no apprehension or grievous hurt • ·of death 1968 ·Narain Singh Stat, of PUllJ<U •• ShahJ. • x x x • x . The only apprehension which Narain Ringh hall was simple hurt and this certainly gave him no right to take the life of Bachan ~!ingh." The Sesaions Judge, therefore, held that Narain Singh was justifierl in resisting Bachan Si 'lgh in exerriise of the right of defence of person, but was not justified in using "the kirpan in suoh a. mannAr and with such-force as to ca.use the death of B>tch11on Singh by piercing one of bis bnirs". The SeRsions Jurlge aooordinglv a.oquitted Mewa ~ingh, M,,har Singh and Pakhar · Simth of the off,,nne ohargAd and convicted Narain Singh of the offence punish able under s. 304 Part II of thf'I Indian Penal f'ode 11.nd sentenced him to suffer rigorous imprisonment for five years. ~ Against the order of conviction and sent,,nce Narain Singh preferred 1tn appeal to the Hi!!h Court of Punjab. The High Court agreed - with the view of the Sessions Court that the evidAnce was insufficient to Astablish the case for the nrose cution, the High Court also hAld that the SeRRions Court was iustified in relvfng upon the st1ttAmAnt made by Na.rain Singh under s.:l42 of th,, C0rle of · Criminal Procedure ancl in holding t.h1tt N1train Singh "had excep, ded thA riirht of s1>lf-defence" and by causing the death of B>tch1tn Singh hv stabhing him with a kirpan, had committed an offnnce p11ni shablA under s.304 part 1 I Indian Penal Code. The li' High Court, however, reduced the sentence imnoseid upon Narain "ingh to rigorouR imprisonment fnr 3 years and subject to that modification dismissed the , 1911 Narain Sin1A •• lit''' of Punjo6 I Slw.h J. I' . I 684 SUPREME COURT REPORTS [1963] appeal against the order of conviction and sentence. With special leave Nara.in Singh had appealed to this Court . 'r - • The case for the prosecution was that Naraiu Singh, when he participated in the assault on Bachan Singh, .was armed with a stick, but the evidence of the witnesses about the assault on Bachan Singh has not been accepted by the Court of Session and the High Court. In the view oi' the Courts injuries on the person of Bachan Singh were caused by Narain Singh by striking him with a kirpan, and the three nephews of Narain Singh had not participated in the assault. In finding Narain Singh guilty of the offence under s.304 Part II for causing injuries to tlie victim Bachan Singh with a kirpan the Court of Sessi_on and the High Court have accepted a case whioh was not the case of the pro secution, but have relied only upon the statement Na.rain Singh made in his defence. Under s.342 of the Code of Criminal Procedure by the first sub section, insofar as it is meterial, the Court may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defen ce shall pu~ questions to the accused person for the . purpose of enabling him to explain any oiroumstan ce appearing in the evidence aga.inst him. Exami nation under s. 342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused hi1 version or explanation-if any, of the incident which forms the subject-matter of the charge and his defence. By .sub-s. (3 J, the answers given by the accused may "be taken into consideration" at the enquiry or the trial. If the accused person . in hi1 examination under s.342 confesses to the commis sion of the offence charged against him the court may, relying upon convl~\ him, but if he does not confess and in that confession, proceed 1962 N ttrain Singh ... Sl1te •f PtJnju& 81r4h J. 3 S.C.R. SUPREME COURT REPORTS 685 explaining circumstance appearing in the evidence again~t him sets up his own version and seeks to explain his conduct pleading that he has committed. no offence, the statement of the accused can only be taken into consideration in its entirety. n is not open to the Court to dissect the statement and to pick out a part of the statement which may be incriminative, and then to examine whether the explanation furnished by the accused for his con duct is supported by the evidence. on the record. If the accused admits to have done an act which furnished by him would but for the explanation be an offence, the admission cannot be used against him divorced from the explanation. The courts below were of the view that th~· prosecution evidence as it stood, was insufficient to bring home the charge against Narain Singh and his nephews. The case for the prosecution that Narain Singh was armed with a stick and joined in the asl'!ault upon Bachan Singh· was sought to be established by affirmative evidence. The c 1se failed because the evidence in support of the case was unreliable. ·Narain Singh admitted that he had caused injuries to Bachan Singh with a Kirpan carried by him, but he explained that he caused the injuries when he was thrown down and Bachan Singh was attempting to strangulate him. There can be no doubt that if a person reasonably appre hends that his assailant is attemptin~ to strangulate him, exercise of the right of defence of person extends even to causing death of the assailant. Narain 8ingh pleaded that he had fallen down and Bachan Singh attempted to strangulate him and therefore he caused1 injuries to Bachan Singh in exercise of the right of self defence. This plea had to be considered as a composite plea: it was not open the court to inve~tigate whether Narain Singh could have reasonably apprehended such injury to 1961 •• Nar 1in Singh Slate of Punjab Shah J. 686 SUPREME COURT REPORTS [1963] himself as justified him in causing the death of Bach1.n Singh, Where a person accusad of commit ting an offenoe sets up at his trial a plea that he. is protected by one of the exceptions, general or special, in the Indian Penal Code, or any other law defining the offence the burden of proving exoeption undoubtedly lies upon him. But this burden is only undertaken by the accused if the proseoution case establishes that in the absence of such a plea he would be guilty of the offence char ged. The prosecution case, however, did not by reliable evidence establish affirmatively that Narain Singh had dime any act which rendered him liable for the offence of murder. His responsibility, if any, arose only out of the plea raised by him: if the plea amounted to a confession of guilt the court could convict him relying upon that plea, but if it amoun ted to admission of facts and raised a plea of justi fiction, the court could not proceed to deal with the case as if the admission of facts wich were · not part of the prosecution oase was true, and the evidence did not warrant the plea of justification. The courts below were, therefor~; in our judg ment, in error in convicting Narain Singh of th·e offence under s.304 Part II of the Indian J:'enal Code. Appeal allowed •• '