Full Judgment Text
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PETITIONER:
DWARKA PRASAD
Vs.
RESPONDENT:
STATE OF UTTAR PRADESH
DATE OF JUDGMENT23/02/1993
BENCH:
SINGH N.P. (J)
BENCH:
SINGH N.P. (J)
REDDY, K. JAYACHANDRA (J)
CITATION:
1993 SCR (2) 70 1993 SCC Supl. (3) 141
JT 1993 (2) 168 1993 SCALE (1)675
ACT:
Penal Code, 1860 : Sections 302, 307, 34-Charged under-
Appreciation of evidence-Prosecution case-Free fight not
proved-Injuries found on the person of the accused-
Significance of-Delay in lodging FIR-Effect of-Motive
disclosed by prosecution-Acceptability of-Accused’s version
Probability of.
Penal Code, 1860 : Section 97 read with Section 105,
Evidence Act 1872 : Right of private defence-When available-
Accused causing injury with a Ballam in the chest of the
victim resulting death-"Whether right of private defence
available.
Code of Criminal Procedure, 1974: Section 313 Statement
made by accused under-Duty of Court while using.
HEADNOTE:
The prosecution’s case was that on the date of occurrence,
the pw.2 and the deceased were returning after answering the
call of nature at about 6 P.M. At that time the appellant
along with co-accused came there. Seeing the p.w.2 and the
deceased the accused came rushed towards them with knives.
Appellant chased the deceased and gave a knife blow on his
chest. The P.W.2 received a knife blow from the co-accused.
Thereafter the accused fled away. The victim died on the
way while he was being taken to Debai. The P.W. 2. lodged
the first information report on the same night at about
11.30 P.M.
The motive for the occurrence was that about 10 or 12 days
before the date of occurrence, the appellant abused the
P.W.2 and the deceased. They gave two/three slaps to the
appellant
The appellant-accused’s case was that for last two days
prior to the date of occurrence the crop of his grand-father
was being damaged. Therefore, he was keeping a watch on the
field. During night the P.W.2 and the deceased came to the
field. Seeing them, the appellant raised an alarm Chor-
Chor. They started running. The appellant chased them to
catch
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them. But they turned back and started assaulting the
appellant with lathies. The appellant attacked them with a
’ballam’ to save his life. The injuries on the person of
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the appellant were examined, in the next morning. He filed
an application before the Superintendent of Police and a
case was registered at about 10.25 A.M. on the next day of
the date of occurrence on the basis of appellant’s petition.
The trial Court acquitted the appellant of the charges under
sections 302 and 307 read with section 34 of the penal Code.
The State’s appeal was allowed by the High Court and the
present appellant was convicted under section 302 of the
Penal Code and was sentenced to undergo rigorous
imprisonment for life.
Present appeal was filed by the accused against the High
Court’s judgment.
The State contended that if the version of appellant was
accepted, it would amount to a case of free fight between
the prosecution party and the accused, both being armed and
that in a case of free right no party could claim right of
private defence.
Partly allowing the appeal, this court,
HELD: 1.01. A free right is that when both sides mean to
right a pitched battle. The question of who attacks and who
defends in such a fight is wholly immaterial and depends on
the tactics adopted by the rival party. In such cases of
mutual rights, both sides can be convicted for their
individual acts, [76E]
1.02. So far the facts of the present case are
concerned, if the version disclosed by the accused can be
held to be a probable version of the occurrence then it
cannot be held to be a case of free fight. [76G]
1.03. In any particular case the injuries found on the
person of the accused being serious in nature may assume
importance in respect of the genesis and manner of
occurrence alleged by the prosecution. In other case the
injuries being superficial, by themselves may not affect the
prosecution case; the version disclosed by the prosecution
having been proved by witnesses who are independent,
reliable and trustworthy, supported by the circumstances of
that particular case, including the promptness with
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which the first information report was lodged on behalf of
the prosecution. But if the first information report has
not been lodged promptly and there is no reasonable
explanation for the delay-, the witnesses who support the
version of the prosecution are not only inimical but even
their evidence is not consistent with the circumstances
found during the course of investigation, then in that
situation, injuries on the person of the accused which are
not very serious in nature assume importance for the purpose
of consideration as to whether the defence of the right of
private defence pleaded by the accused should be accepted.
[80B-D]
1.04. So far the present case is concerned the injuries
found on the person of the appellant are not serious in
nature and merely on the ground that prosecution has
suppressed those injuries, the appellant is not entitled to
the acquittal. But those injuries can certainly be taken
into consideration while judging whether the defence version
of the accused is probable. [80H]
1.05. The motive disclosed on behalf of the prosecution
for the occurrence is not acceptable. Even if it is assumed
that because of some altercation 10/12 days before the date
of occurrence, the appellant had decided to cause the murder
of the deceased, then more injuries would have been caused
on the person of the victim by the appellant. [81B]
1.06. The delay in lodging the first information report
by PW-2 has not at all been explained. The occurrence
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according to prosecution took place at 6.00 P.M. in the
evening. The victim while being taken to Debai which is at
a distance of five kilometers expired on the way. Then why
first information report was lodged at 11.30 P.M., there is
no explanation. On the other hand the appellant’s case is
that the occurrence did not take place at 6.00 P.M. in the
evening but at later part in the night. That appears to be
more probable. [81C]
1.07. The injury found on the chest of the deceased is
inconsistent with the prosecution case that appellant chased
the deceased and then gave a blow by knife. But it is
consistent with the defence version that soon the deceased
and PW.2 returned and started assaulting the appellant when
the appellant gave a ballam blow in the chest of the
deceased. If the appellant had given the ballam blow while
chasing the deceased, in that event it would have caused
injury on the back of the deceased. [81F]
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1.08. Taking all facts and circumstances into
consideration the version of the accused of the occurrence
appears to be probable and acceptable. [82G]
Gajanandv.State of Uttar Pradesh, AIR1954SC 695;Kanbi Nanji
Virji v. State of Gujarat AIR 1970 SC 219; Puran v. State
of Rajasthan, AIR 1976 SC 912; Vishvas Aba Kurane v. State
of Maharashtra, AIR 1978 SC 414; The State of Gujarat v. Bai
Fatima, AIR 1975 SC 1478; Lakshman Singh v. State of Bihar,
AIR 1976 SC 2263; Bhaba Nanda Sarma v. The State of Assam,
AIR 1977 SC 2252; Hare Krishna Singh v. State of Bihar, AIR
1988 SC 863 and State of Rajasthan v. Madho, AIR 1991 SC
1065, referred to. [76F]
2.01. Once it is established by the prosecution that the
occurrence in question is result of a free fight then
normally no right of private defence is available to either
party and they will be guilty of their respective acts.
[76G]
2.02. Accused pleading the right of private defence need
not prove it beyond reasonable doubt. It is enough if on
the basis of the circumstances of a particular case,
applying the test of preponderance or probabilities the
version becomes acceptable. [80E]
2.03. There are no two parallel versions before the
Court, one on behalf of the prosecution and other on behalf
of the accused and the Court is required to choose as to
which of the two versions is the correct version of the
occurrence. The burden placed on the accused is discharged
no sooner he creates a doubt in the mind of the Court and
satisfies the Court that the version disclosed by him in the
facts and circumstances of that particular case is more
probable. [80E-F]
2.04. If the right of private defence is available.
While judging the question whether the accused has exceeded
such right, should not be weighed in a golden scale. But
the right of private defence does not extend to the
infliction of more harm than is necessary for the purpose of
defence. When the appellant caused the injury with a
ballani (spear) in the chest of the victim which resulted in
his death, certainly he exceeded his right of private
defence. [82H, 83A]
Partap v. )le State of U.P., [1975] 2 SCC 798; Mohan Singh
v. State of Punjab, AIR 1975 SC 2161; Seniyal Udayar v.
State of Tamil Nadu, AIR 1987 SC 1289; Vijayee Singh v.
State of U.P., [1990] 3 SCC 190 and Buta
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Singh v. State of Punjab, [1991] 2 SCC 612, referred to.
[80G]
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3. An admission has to be taken as a whole. It was not
open to the High Court to reject one part so far the
aggression and assault by the prosecution party which
according to the appellant preceded giving of the ballam
blow, and to accept only the later part of the statement
that appellant gave a ballam blow, for the purpose of
convicting the appellant [82D].
Hanumant Govind Nargundkar v. State of Madhya Pradesh, AIR
1952 SC 343, referred to. [82E]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 827 of
1981.
From the Judgment and Order dated 22.7.81 of the Allahabad
High Court in Government Appeal No. 1861 of 1975.
P.K. Dey, Rakesh Goswami and Ms.Rani Jethmalani (N.P.) for
the Appellant.
R.C. Verma for the Respondent.
The Judgment of the Court was delivered by
N.P. SINGH, J. The appellant was acquitted of the charges
under sections 302 and 307 read with section 34 of the Penal
Code by the Trial Court. On appeal being filed on behalf of
the State of Uttar Pradesh he has been convicted under
section 302 of the Penal Code by the High Court and
sentenced to undergo rigorous imprisonment for life.
It is the case of the prosecution that on 25.2.1974 at about
6.00 P.M. Chandrapal (PW-2) along with Jagdish (hereinafter
referred to as "the deceased") were returning after
answering the call of nature. It is said that at that time
this appellant along with co-accussed Ramesh came from the
side of the village; seeing Chandrapal (PW-2) and the
deceased, the appellant and Ramesh rushed towards them with
knives. After some chase the appellant gave a knife blow on
the chest of the victim. The co-accused Ramesh gave a knife
blow to Chandrapal (PW-2). Thereafter the appellant and
Ramesh fled away. The victim while being taken to Debai,
died on the way, Chandrapal (PW-2) lodged the first
information report at the Police Station Debai at about
11.30 P.M. the same night.
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The motive of the occurrence, according to the prosecution,
is that about 10 or 12 days before the date of the aforesaid
occurrence, there was some altercation between Chandrapal
(PW-2) and the deceased on the one side and this appellant
on the other, in which the appellant is said to have abused
them. Chandrapal (P.W-2) and the deceased had given
two/three slaps to the appellant.
The defence of the appellant was that the prosecution has
suppressed the real manner of occurrence. According to the
appellant,. for last two days prior to the date of
occurrence the crop of his grand-father Sohan Lal was being
damaged. Because of that he was keeping a watch on the said
field. During night Chandrapal (PW-2) and the deceased came
to the field. The appellant raised an alarm chor-chor.
Thereafter Chandrapal (PW-2) and the deceased started
running. The appellant chased them to catch them. But soon
they turned back and started assaulting the appellant with
lathies. To save his life the appellant attacked with a
’ballam’ (spear). The injuries on the person of the
appellant were examined the next morning. He also filed an
application before the Superintendent of Police, giving his
version of the occurrence in which he admitted that when he
was being assaulted by Chandrapal (PW-2) and the deceased,
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he bad used a ballam. A case was registered by the Police
at about 10.25 A.M. on 26.2.1974, on the basis of the
petition filed on behalf of the appellant.
The injuries on the person of the appellant were examined by
Dr. R.P. Rastogi at the District Hospital, Bullandshahar, on
26.2.1974. He found the following injuries on his person:-
"(1) Faint contusion 2 cm x 1/2 cm back of
left shoulder upper part.
(2) Faint contusion 10 cm x 2 cm on outer
side left back at the lower angle of scapula.
(3) Faint contusion 4 1/2 cm x 1 cm on back
of upper part 1/3rd left forearm.
(4) Faint contusion 12 cm x 1 cm on the back
and inner aspect left forearm upper 1/3rd."
During the post mortem examination of the deceased which was
also held on 26.2.1974, the following injury was found on
his person:-
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"Stab wound 1" x 1/2" x 1.3/4". On probing, on
left side front of chest, 2.1/2" inner to left
nipple at 10 O’ clock position pointing the
onwards and downwards."
The Doctor (PW-1), who held the post mortem examination, ad-
mitted that the aforesaid injury could be caused by ballam.
So far Chandrapal (PW-2) is concerned, the Doctor noted the
following injury on 26.2.1974:-
"Abrasion 1-1/2 x 1/3" on the left side front
of chest, horizontally with shallow edge,
medically, 7" below ancillary pit. The wound
was not bleeding afresh, but had got clotted
blood over it."
The Doctor in Court stated that possibility of self-
infliction of that injury could not be ruled out.
According to the State, even if the version disclosed by the
appellant is accepted, it will amount to a case of free
fight between the prosecution party and the accused, both
being armed and when there is a free fight there is no
question of right of private defence accruing to any side.
A free fight is that when both sides mean to fight a pitched
battle. The question of who attacks and who defends in such
a fight is wholly immaterial and depends on the tactics
adopted by the rival party. In such cases of mutual fights,
both sides can be convicted for their individual acts. This
position has been settled by this Court in the cases of
Gajanand v. State of Uttar Pradesh, AIR 1954 SC 695; Kanbi
Nanji Virji v. State of Gujarat AIR 1970 SC 219; Puran v.
State of Rajasthan, AIR 1976 SC 912 and Vishvas Aba Kurane
v. State of Maharashtra, AIR 1978 SC 414. As such once it
is established by the prosecution that the occurrence in
question is result of a free fight then normally no right of
private defence is available to either party and they will
be guilty of their respective acts.
But so far the facts of the present case are concerned, if
the version disclosed by the accused can be held to be a
probable version of the occurrence then it cannot be held to
be a case of free fight. According to the appellant, the
crops of the field of his grand-father were being damaged
for last two days prior to the date of the occurrence;
because of that appellant claims that he was watching the
said field. During the night the
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deceased and Chandrapal (PW-2) came to the same field and
the appellant chased them. But soon they turned back and
started assaulting the appellant with lathies. At this
stage the appellant wielded his ballam (spear) which caused
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an injury to the deceased which ultimately proved fatal. It
is an admitted position that the appellant filed a petition
before the Superintendent of Police giving his version of
the occurrence in the morning of ’basis of that a case was
registered at about 10.25 A.M. on 26.2.1974, the occurrence
having taken place during the night of 25.2.1974. This fact
has been admitted by Shri Manohar Singh (PW-6) who has
proved the first information report lodged on behalf of the
prosecution. On the examination, Dr. R.P. Rastogi (PW-3) of
the District Hospital, Bullandshahar, did find four injuries
including one on the scapula of the appellant. It is true
that injuries were simple in nature. But even on the
deceased only one injury 1" x 1/2 1.3/4" was found on the
left side front of the chest, which according to the Doctor
who held the post mortem examination, could have been caused
by a weapon like ballam (spear). In the statement under
section 313 of the Code of Criminal Procedure (hereinafter
referred to as "the Code") given by the appellant, it was
stated by the appellant in detail as to how the standing
crops on the land of his grand-father were being damaged and
on the night of the occurrence he was guarding the field
when he saw the deceased and Chandrapal (PW-2) destroying
the crops in the field. He also stated that he shouted
chor-chor and then chased them to catch them. But soon they
turned round and started giving lathies blows and in self-
defence the appellant used a ballam. It appears that all
this happened in the aforesaid field which the apppellant
was guarding.
From time to time this Court has pointed out that merely
because some injuries are found on the accused, which have
not been explained by the prosecution, by itself shall not
be a ground for rejecting the whole prosecution case. It
will depend on facts of each case what inference should be
drawn by the Court. In the case of The State of Gujarat v.
Bai Fatima, AIR 1975 SC 1478, it was said that when the
prosecution fails to explain the injuries on the person of
an accused, depending on the facts of each case, any of the
three results may follow :-
"(1) That the accused had inflicted the
injuries on the members of the prosecution
party in exercise of the right of self
defence.
78
(2) It makes the prosecution version of the
occurrence doubtful and the charge against the
accused cannot be held to have been proved
beyond reasonable doubt.
(3) It does not affect the prosecution case at
all."
The aforesaid three inferences drawn on basis of the nature
of injuries were reiterated in the case of Lakshmi Singh v.
State of Bihar, AIR 1976 SC 2263, and it was further
observed:-
"It seems to us that in a murder case, the
non-explanation of the injuries sustained by
the accused at about the time of the
occurrence or in the course of altercation is
a very important circumstance from which the
Court can draw the following inferences:
(1) that the prosecution has suppressed the
genesis and the origin of the occurrence and
has thus not presented the true version:
(2) that the witnesses who have denied the
presence of the injuries on the person of the
accused are lying on a most material point and
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therefore their evidence is unreliable;
(3) that in case there is a defence version
which explains the injuries on the person of
the accused it is rendered probable so as to
throw doubt on the prosecution case. The
omission on the part of the prosecution to
explain the injuries on the person of the
accused assumes much greater importance where
the evidence consists of interested or
inimical witnesses or where the defence gives
a version which competes in probability with
that of the prosecution one."
A three-Judge Bench in yet another case of Bliaba Nanda
Sarma v. The State of Assam, AIR 1977 SC 2252, said:-
"The prosecution is not obliged to explain the
injuries on the person of an accused in all
cases and in all circumstances. This is not
the law. It all depends upon the facts and
79
circumstances of each case whether the
prosecution case becomes reasonably doubtful
for its failure to explain the injuries on the
accused."
In the case of Hare Krishna Singh v. State of
Bihar, AIR 1988 SC 863, it was said:
"If the witnesses examined on behalf of the
prosecution are believed by the Court in proof
of the guilt of the accused beyond any
reasonable doubt, the question of the
obligation of the prosecution to explain the
injuries sustained by the accused will not
arise. When the prosecution comes with a
definite case that the offence has been
committed by the accused and proves its case
beyond any reasonable doubt, it becomes hardly
necessary for the prosecution to again explain
how and in what circumstances injuries have
been inflicted on the person of the accused."
But in the case of State of Rajasthan v.
Madho, AIR 1991 SC 1065, it was held:
"If the prosecution witnesses shy away from
the reality and do not explain the injuries
caused to the respondents herein it casts a
doubt on the genesis of the prosecution case
since the evidence shows that these injuries
were sustained in the course of the same
incident. It gives the impression that the
witnesses are suppressing some part of the
incident. The High Court was, therefore, of
the opinion that having regard to the fact
that they have failed to explain the injuries
sustained by the two respondents in the course
of the same transaction, the respondents were
entitled to the benefit of the doubt."
As first impression there appears to be some conflict in the
views expressed in the different judgments of this Court
referred to above. But on proper reading with reference to
the facts of each case, there is no basic difference and
according to us this Court rightly in the case of The State
of Gujarat v. Bai Fatima (supra) put in three categories the
result which may follow from the facts of each case. It is
well-known that guilt of the
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accused is to be judged on the basis of the facts and
circumstances of the particular case. In any particular
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case the injuries found on the person of the accused being
serious in nature may assume importance in respect of the
genesis and manner of occurrence alleged by the prosecution.
In other case the injuries being superficial, by themselves
may not affect the prosecution case; the version disclosed
by the prosecution having been proved by witnesses who are
independent, reliable and trustworthy, supported by the
circumstances of that particular case, including the prompt-
ness with which the first information report was lodged on
behalf of the prosecution. But if the first information
report has not been lodged promptly and there is no
reasonable explanation for the delay; the witnesses who
support the version of the prosecution are not only inimical
but even their evidence is not consistent with the
circumstances found during the course of investigation, then
in that situation, injuries on the person of the accused
which are not very serious in nature assume importance for
the purpose of consideration as to whether the defence of
the right of private defence pleaded by the accused should
be accepted.
It is well-known that accused pleading the right of private
defence need not prove it beyond reasonable doubt. It is
enough if on the basis of the circumstances of a particular
case, applying the test of preponderance or probabilities
the version becomes acceptable. There are not two parallel
versions before the Court, one on behalf of the prosecution
and other on behalf of the accused and the Court is required
to choose as to which of the two versions is the correct
version of the occurrence. The burden placed on the accused
is discharged no sooner he creates a doubt in the mind of
the Court and satisfies the Court that the version disclosed
by him in the facts and circumstances of that particular
case is more probable. The onus of the accused under
section 105 of the Evidence Act has been examined by this
Court in the cases of Partap v. The State of U.P., [1976] 2
SCC 798; Mohan Singh v. State of Punjab, AIR 1975 SC 2161;
Seriyal Udayar v. State of Tamil Nadu, AIR 1987 SC 1289;
Vijayee Singh v. State of U.P., [1990] 3 SCC 190 and Buta
Singh v. State of Punjab, [1991] 2 SCC 612.
So far the present case is concerned the injuries found on
the person of the appellant are not serious in nature and
merely on the ground that prosecution has suppressed those
injuries, the appellant is not entitled to the acquittal.
But those injuries can certainly be taken into consideration
81
while judging whether the defence version of the accused is
probable. The motive disclosed on behalf of the prosecution
for the occurrence is not acceptable. Even if it is assumed
that because of some altercation 10/12 days before the date
of occurrence, the appellant had decided to cause the murder
of Jagdish then more injuries would have been caused on the
person of the victim by the appellant instead of an injury
1" x 1/2 x 1 3/4". The prosecution case regarding assault
by Ramesh with a knife on Chandrapal (PW-2) has been
disbelieved by the Trial Court as well as the High Court.
The delay in lodging the first information report by
Chandrapal (PW-2) has not at all been explained. The
occurrence according to prosecution took place at 6.00 P.M.
in the evening. The victim while being taken to Debai which
is at a distance of five kilometers expired on the way.
Then why first information report was lodged at 11.30 P.M.,
there is no explanation. On the other hand the appellant’s
case is that the occurrence did not take place at 6.00 P.M.
in the evening but at later part in the night. That appears
to be more probable. The appellant appeared before the
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Superintendent of Police, the next morning and disclosed his
version of the occurrence on basis of which a case was
registered. His injuries were also examined only the next
morning. He also took a firm stand during his statement
under section 313 that he give a ballam blow when the
deceased and Chandrapal (PW-2) started assaulting him with
lathies. Out of the four injuries one was on the scapula,.
The doctor has not opined that they were manufactured or
self- inflicted. Those injuries, according to the doctor,
had been caused by a blunt weapon which is consistent with
the defence version of the occurrence. The injury found on
the chest of the deceased is inconsistent with the
prosecution case that appellant chased the deceased and then
gave a blow by knife. But it is consistent with the defence
version that soon the deceased and Chandrapal (PW-2)
returned and started assaulting the appellant when the
appellant gave a ballam blow in the chest of the deceased.
If the appellant had given the ballam blow while chasing the
deceased, in that event it would have caused injury on the
back of the deceased.
The High Court has not disbelieved ’the version disclosed by
the appellant. The High Court on consideration of the
evidence and the circumstances of the case has observed:-
"It is true that this respondent gave a
different time of the occurrence and his
version of the occurrence was also
82
different and it has been disbelieved by the
learned Sessions Judge, obviously on cogent
grounds. But this cannot wash out the effect
of his clear stand all through that there was
a marpit between him and the informant and the
deceased in which he had wielded a spear on
them. This part of this respondent’s version
was clearly severable from the rest of his
version and it was not at all necessary that
if the learned Sessions Judge disbelieved his
version regarding the manner of the
occurrence, he was bound to rule out of
consideration this admission of the respondent
which was clearly separate and severable from
the rest of his story."
The High Court has used a part of the statement of the
appellant as an admission. According to us, that part of
the statement made by the accused under section 313 of the
Code cannot be used as an admission, supporting the
prosecution case. It is well-known that an admission has to
be taken as a whole. It was not open to the High Court to
reject one part so far the aggression and assault by the
prosecution party which according to the appellant preceded
giving of the ballam blow, and to accept only the later part
of the statement that appellant gave a ballam blow, for the
purpose of convicting the appellant. In the case of
Hanumant Govind Nargunadkar v. State of Madhya Pradesh, AIR
1952 SC 343. it was said:-
"It is settled law that an admission made by a
person whether amounting to a confession or
not cannot be split up and part of it used
against him. An admission must be used either
as a whole or not at all."
The High Court should have taken the whole statement made by
the appellant as an admission and then should have examined
what shall be the effect thereof on the prosecution case.
According to us, taking all facts and circumstances into
consideration the version of the accused of the occurrence
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appears to be probable and acceptable.
The next question is as to whether in the circumstances of
the case appellant could have caused the death of Jagdish.
While accepting the plea of right of private defence it has
been said that if the right is available, while judging the
question whether the accused has exceeded such right, should
not be weighed in a golden scale. But the right of private
defence
83
does not extend to infliction of more harm than is necessary
for the purpose of defence. When the appellant caused the
injury with a ballam (spear) in the chest of the victim
which resulted in his death, certainly he exceeded his right
of private defence. Accordingly, the conviction of the
appellant under section 302 of the Penal Code is set aside.
But the appellant is convicted under section 304, Part-1,
and sentenced to rigorous imprisonment for seven years which
according to us shall meet the ends of justice. The appeal
is allowed in part to the extent indicated above.
V.P.R. Appeal allowed partly.
84