(Per : HONOURABLE MR.JUSTICE J.B.PARDIWALA)
1. This appeal is at the instance of two convicts, for the offences punishable under Sections 302, 323, 326 read with section 114 of the Indian Penal Code, as well as for the offence punishable under Section 135 of the Bombay Police Act, and is directed against the order of conviction and sentence dated 18th December, 2007 passed by the learned Sessions Judge, Navsari in Sessions Case No.47 of 2006. By the aforesaid order, the learned Sessions Judge found the appellant No.1 guilty of the offences punishable under Sections 302 and 323 read with section 114 of the Indian Penal Code, and also found the appellant No.1 guilty of the offence punishable under Section 135 of the Bombay Police Act, and consequently, sentenced him to suffer life imprisonment, and a fine of Rs.1000/-. The learned Sessions Judge also found the appellant No.1 guilty of the offence punishable under Section 323 of the Indian Penal Code, and consequently, sentenced him to suffer simple imprisonment for one month, and a fine of Rs.5000/-. In default of payment of fine, the appellant No.1 was directed to undergo further simple imprisonment for fifteen days.
1.1 The learned Sessions Judge also found the appellant No.2 guilty of the offences punishable under Sections 302 and 326 of the Indian Penal Code, and consequently, sentenced him to suffer life imprisonment, and a fine of Rs.1000/-, and also sentenced him to suffer rigorous imprisonment for three years, and a fine of Rs.1000/- for the offence punishable under Section 326 of the Indian Penal Code. In default of payment of fine, the appellant No.2 was directed to undergo further simple imprisonment for six months.
1.2 The learned Sessions Judge also sentenced both the appellants to undergo simple imprisonment for one month, and a fine of Rs.100/- each for the offence punishable under Section 135 of the Bombay Police Act. The learned Sessions Judge acquitted both the appellants so far as the charge of the offence punishable under Section 504 of the Indian Penal Code is concerned.
2. Case of the prosecution 2.1 The complainant one Mustufa Majid Ansari was residing at Maroli Bazar, Bavangala, situated in the District of Navsari with his family consisting of his wife, named, Meenaben and two children, named, Karishma and Pravin, born to Meenaben from her first marriage with one Shantilal Sukhabhai. The first marriage of Meenaben was solemnized with one Shantilal Sukhabhai of Ankleshwar, and during the wedlock, a son and a daughter were born, named, Pravin and Karishma. The first marriage of Meenaben had ended in a divorce. After the divorce, Meenaben fell in love with one Mustufa Majid Ansari and got married. After marriage, all of them were staying together. On 14th July, 2006, the son of Meenaben, named, Pravin was playing outside the house, and at that point of time, Pravin was assaulted by the son of the appellant No.1. On being assaulted by the son of the appellant No.1, Pravin came home crying, and on being asked by his mother Meenaben, it was told by Pravin to her mother, that Akash, son of the appellant No.1, had beaten him up. Meenaben therefore, had gone to the house of the appellant No.1 to ask the appellant No.1, as to why his son had beaten up Pravin. At that point of time, the appellant No.1 hurled abuses at Meenaben and got enraged. The appellant No.1, on being enraged, picked up a stick, and hit two blows on the head of Meenaben, as a result of which, Meenaben started bleeding. Meenaben returned to her house. On returning home, Meenaben had informed about the incident to her aunt, named, Somiben, the deceased. Thereafter, Meenaben had asked her daughter Karishma to go and inform her husband Mustafa about the incident. It is the case of the prosecution that, after some time, Mustafa came home and his wife Meenaben narrated about the incident of assault by the appellant No.1 with a stick on her head. Thereafter, Mustufa and Somiben, aunt of Meenaben, had gone to the house of the appellant No.1 to reprimand and also to ask the appellant No.1 as to why the appellant No.1 had assaulted Meenaben. At that point of time, the appellant No.1 got enraged and hurled abuses at the complainant, Mustafa. The appellant No.1, thereafter, inflicted stick blows on Somiben, the deceased, and the appellant No.2, who was the servant of the appellant No.1, came with an axe and hit a blow on the left hand wrist of Mustafa. Thereafter, the appellant No.2, the servant of the appellant No.1, inflicted injuries on the head of Somiben with an axe. As a result of which, Somiben had collapsed. As people from the neighbourhood gathered at the place of the incident, the appellant Nos.1 and 2, with stick and axe in their hand, ran away. Thereafter, Mustafa and Somiben both were taken to Maroli Government Dispensary for treatment, and after giving preliminary treatment at Maroli Government Dispensary, they were shifted to Navsari Civil Hospital. As the condition of Somiben was serious on account of injury, which she had sustained on her head, Somiben had to be shifted to Surat Civil Hospital. Somiben passed away at Surat Civil Hospital.
2.2 On 15th July, 2006, at around 5:30, in the morning, the First Information Report, lodged by Mustafa was recorded by the Police Inspector, Jalalpore Police Station, Dist: Navsari. On the strength of the FIR, which was lodged by Mustafa, the investigation had commenced. The scene of offence Panchnama was drawn in presence of two Panch witnesses. Both the appellants were thereafter, arrested, and the arrest Panchnama was accordingly drawn in presence of two panch witnesses. The clothes worn by both the accused persons were collected for the purpose of sending them for chemical analysis. A detailed Panchnama in that regard was drawn in presence of the two Panchas. Thereafter, the discovery Panchnama of the weapons, used in the commission of the offence, was drawn in presence of the two Panch witnesses. The appellants, at the time of drawing of the Panchnama of their person, had informed that they were assaulted by Mustafa and they be taken for medical treatment. Accordingly, both the appellants were sent for medical examination. The inquest Panchnama of the dead body was also drawn in presence of the Executive Magistrate of Jalalpore and two Panch witnesses. At the end of the investigation, charge sheet was filed against both the accused persons in the Court of learned Chief Judicial Magistrate, Navsari.
2.3 As the case was exclusively triable by the Sessions Court, the Chief Judicial Magistrate, Navsari committed the case to the Sessions Court under section 209 of the Code of Criminal Procedure, 1973. The Sessions Court framed charge against both the accused persons at Exh-5, and statements of both the accused were recorded. Both the accused did not admit the charge and claimed to be tried.
2.4 The prosecution adduced following oral evidence in support of its case.
PW
1. Mustafa Majid Ansari, Exh.7, (Original complainant and injured witness), PW
2. Meenaben Mustafa Majid Ansari, Exh.18, (Wife of the complainant and injured witness), PW
3. Dr. Rajeshbhai Babubhai Patel, Exh.26, (Medical Officer of Navsari Civil Hospital) PW
4. Dr. Madhukar Rajaram Vagh, Exh.32, (Medical Officer at Maroli Community Health Centre).
PW
5. Dr. Mohanbhai Chenram Chauhan, Exh.40, (Medical Officer at Surat Civil Hospital) PW
6. Ashokbhai Vestabhai Gamit, Exh.44, PW
7. Lalsinh Jitsinh Solanki, Exh.47, (Investigating Officer).
PW
8. Dr. Pranav Vinodchandra Prajapati, Exh.51, (Doctor, who performed the postmortem).
2.5 The following pieces of documentary evidence were adduced by the prosecution.
Original complainant, Exh.48, Scene of offence Panchnama, Exh.19, Inquest Panchnama, Exh.20, Panchnama of clothes collected from the body of the deceased, Exh.21, Arrest Panchnama of the accused persons, Exh.49, Discovery Panchnama under section 27 of the Evidence Act of the weapon of offence, Exh.50, Medical certificate of the complainant, Exh.37, Serological report, Exh.52, Certificate of the cause of death of the deceased, Exh.53, Medical certificate of the injuries sustained by Meenaben, wife of Mustafa, of P. S.C., Maroli, Exh.38, Medical certificate of Meenaben, issued by Navsari Civil Hospital, Exh.27, Medical certificate of the complainant Mustafa, issued by Navsari Civil Hospital, Exh.28, Medical certificate of the complainant Mustafa, issued by Surat Civil Hospital, Exh.43, Medico legal certificate of the deceased Somiben Lallubhai Rathod, Exh.39, Notification under Section 37(1) of the Bombay Police Act, Exh.22, Office copy of letter of Muddamal sent to the Forensic Science Laboratory by forwarding letter, Exh.23, Report of Forensic Science Laboratory, Exh.24, Serology examination report, Exh.25, Original case papers of M.L.C. Case No.81, Exh.34, Original case papers of M.L.C. Case No.82, Exh.35, Original case papers of M.L.C. Case No.83, Exh.36, X-ray of wrist of left hand of the complainant Mustafa, Exh.42, Original case papers regarding admission of Mustafa Majid in the Civil Hospital, Exh.30, X-ray of left hand of the complainant Mustafa, Exh.31, Certified copies of Station Diary, Entry No.5 of Jalalpore Police Station, Exh.46.
2.6 After completion of oral as well as the documentary evidence of the prosecution, the statements of both the accused persons, under Section 313 of the Code of Criminal Procedure, 1973, were recorded, in which, both the accused persons stated that the complaint was false and they are innocent.
2.7 At the conclusion of the trial, the learned trial Judge convicted the accused No.1 for the offence punishable under Sections 302 and 323 read with Section 114 of the Indian Penal Code, and sentenced them, as stated herein before. In the same manner, the trial Court also convicted the accused No.2 for the offence punishable under sections 302 and 326 read with Section 114 of the Indian Penal Code, and sentenced them, as stated herein before.
2.8 Being dissatisfied with, both the accused appellants have come up with this appeal.
3. Submissions on behalf of the accused appellants.
3.1 Mr.
Harnish V. Darji, the learned counsel appearing for the accused appellant vehemently submitted that the trial Court committed a serious error in holding the accused appellants guilty of the offence of murder punishable under Section 302 of the Indian Penal Code, by not properly considering the plea of right of the private defence. Mr. Darji submitted that the appellant No.1 had also lodged a First Information Report against the prosecution witnesses, as right from the beginning, it is the case of the accused appellants that Mustafa and Somiben, the deceased, had come at the house of the appellant No.1, and had laid an assault on them with sticks. According to Mr. Darji, with a view to protect themselves from being subsequently assaulted by Mustafa and Somiben, they had to protect themselves, and in the process, the injuries were sustained by Mustafa and Somiben, the deceased. Thus, according to Mr. Darji, nothing is an offence, which is done in the exercise of the right of private defence.
3.2 Mr.
Darji further submitted that although, both the accused appellants have not claimed any right of private defence in their statements recorded under Section 313 of the Code of Criminal Procedure, 1973, but, it is very much available to them, on the basis of the evidence, that has been produced by the prosecution, and the suggestions, which have been put by the defence to the prosecution witnesses. Mr. Darji further submitted that the prosecution witnesses have admitted in so many words that the accused appellant No.1 had also lodged a First Information Report against Mustafa, his wife Meenaben and Somiben, the deceased, and the trial, in that regard, is still pending before the Court. Mr. Darji also laid much emphasis on the fact that when the arrest Panchnama was being drawn of the accused persons, they had made a statement before the Panch witnesses and the Investigating Officer that they were assaulted by the other side and they be taken for medical treatment to a dispensary. According to Mr. Darji, all these facts would go to show that, the accused appellants, in exercise of their right of private defence, had to lay the assault on Mustafa and the deceased Somiben. Mr. Darji, therefore, urged that the appeal deserves to be allowed and the accused appellants be acquitted of all the charges.
4. Submissions on behalf of the State 4.1 Mrs.
Krina Calla, the learned Additional Public Prosecutor, vehemently submitted that the Court below committed no error in holding both the accused appellants guilty of the offence of murder of Somiben, and no interference is warranted in the present appeal. Mrs. Calla submitted that where right of private defence is pleaded, the defence must be a reasonable and probable version, satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. Mrs. Calla submitted that it may be true that the accused, the appellant No.1, may also have lodged a First Information Report, and the trial, in that regard against the prosecution witnesses, may be pending, but that by itself, is no reason or ground to accept the plea of the right of private defence. Mrs. Calla submitted that it is also true that the accused persons were taken for medical examination, but, there is no evidence, worth the name, in the form of any medical certificate indicating that the accused appellants had sustained any injuries on their body. According to Mrs. Calla, the Panchnama of the person of both the accused appellants would reveal that there was not a scratch on the body of either of the appellants. Mrs. Calla further submitted that there is not an iota of evidence, which the defence could lead to show that Mustafa and Somiben were armed when they had gone at the house of the appellant No.1 to ask him as to why he had assaulted Meenaben. Thus, according to Mrs. Calla, the learned Sessions Judge very rightly did not accept the plea of the right of private defence, as put forward by the accused appellants, and rightly convicted both the accused appellants for the murder of Somiben, and also for the offence of causing injury on the body of the complainant. Mrs. Calla therefore, urged to dismiss the appeal and confirm the order of conviction and sentence.
5. The picture, that emerges from a cumulative reading and assessment of the material available on record, is thus:
5.1. On the date of the incident, the son of the complainant was assaulted by the son of the accused No.1. Meenaben, as a mother, had gone to the house of the accused No.1 to inquire as to why the son of the accused No.1 had beaten her son. At that point of time, the accused No.1 had hurled abuses at Meenaben, and also hit two blows with a stick on the head of Meenaben, as a result of which, Meenaben had started bleeding. Thereafter, Meenaben asked her daughter Karishma to immediately go and inform Mustafa, her husband, about the incident. Mustafa, the complainant, on being informed about the incident by her step daughter, Karishma, immediately came at the house, and thereafter, in company of Somiben, the deceased, went to the house of the accused No.1 to reprimand the act of the accused No.1 in hurling abuses at Meenaben, and thereafter, inflicting injuries on the head of Meenaben. It is, at that stage, that both the accused persons assaulted the complainant Mustafa as well as Somiben, the deceased. Even, according to Mr. Darji, the learned counsel appearing for the accused appellants, there is no dispute so far as the incident is concerned.
6. We shall now look into the medical evidence on record. The PW 4, Dr. Madhukar Rajaram Vagh, is the Medical Officer, who had examined and treated the complainant Mustafa, Meenaben, wife of the complainant and Somiben, the deceased, who happened to be the aunt of Meenaben. The PW 4, Dr. Madhukar Rajaram Vagh, in his evidence, has deposed that, on 14th July, 2006, he was on duty at Maroli Community Health Centre, and at around 8 o'clock, in the night, Meenaben, Somiben and Mustafa were brought for treatment. The PW 4 has deposed that Meenaben had a swelling on the head admeasuring 5 cm x 5 cm, and on the swollen part of the injury, blood had clotted. Meenaben was administered with an injection of tetanus, and thereafter, was referred to a neurosurgeon at Navsari Civil Hospital. The PW 4 has also deposed that he had examined Somiben on the next day. Somiben was unconscious, her general condition was very serious and her pulse rates were 100 per minute. Her blood pressure was below 100, and Somiben was unable to breath. According to the PW 4, the patient was absolutely in a state of coma, and was not responding in any manner. The PW 4 has deposed that there was a CLW on frontal bone, 6 to 7 cm bone deep. There was active bleeding from the right ear. The blood was also oozing from the mouth. As the patient was in a serious condition, she was referred to a higher centre of neurological management. The PW 4 has further deposed that he had also examined Mustafa Majidbhai. In the history, said Mustafa had stated that he was assaulted by an axe. The PW 4 had found CLW on the right hand wrist, 5 to 6 cm bone deep and the injury was bleeding. The nerves were all cut. The patient was administered with an injection of tetanus as well as jobbing injection, and thereafter, was referred to an Orthopedic surgeon for further treatment at Navsari Civil Hospital.
6.1 The PW 5 Dr. Mohanbhai Chenram Chauhan, is also a Medical Officer, who, at the relevant point of time, was associated with the Civil Hospital at Navsari. The PW 5, in his evidence, has deposed that, on 1st August, 2006, a patient, named, Mustafa Majid of Maroli Bazaar, was referred by the Civil Hospital, Navsari. On examination, it was found that there was swelling and a healed wound on left hand wrist. The swelling was admeasuring in an area of 5 cm x 7 cm. The patient had complaint of pain. Thereafter, X-ray was taken, which revealed that there was a fracture of radius, and as per the opinion of the orthopedic surgeon, there was extension tendant injury.
6.2 The PW 8, Dr. Pranav Vinodchandra Prajapati, is the Medical Officer, who, at the relevant point of time, was associated with the Forensic Medicine Department of the New Civil Hospital at Surat. He had performed the postmortem on the dead body of Somiben. The postmortem of Somiben revealed the following injuries:
"External injuries :
1. Surgical stitch wound present over right fronto parietal region of head, of size 7 cm x 0.2 cm, situated 6 cm above right eyebrow and 6 cm right to mid line (total number of stitches were five) taken with black coloured string.)
2. Abrasion present over back of inner aspect of right forearm of size 3.5 x 0.5 cm, 9 cm above right wrist, reddish brown in colour.
3. Incised wound present over back left hand of size 1 cm x 1 cm, 5 cm below left wrist.
4. Multiple abrasion present over front of right leg in upper 1/3 region of varying size 2 cm to 0.3 cm to 1 cm x 0.2 cm reddish brown in colour.
5. Multiple lacerated wounds (total no.3) present over right side of face above right ear in all area of 4 cm x 3 cm, varying size rom 1.5 cm x 0.5 cm to 0.5 cm to 0.5 cm.
No evidence of any palpable fracture except skull.
All above injuries are ante mortem in nature.
Internal injuries:
Extravasation of blood present underneath the scalp tissue over right fronto parietal region in all area of 10 cm x 6 cm. rt. temporalis h'agic. Corresponding to external injury No.1, comminuted fracture present over right parieto temoral region of size 10 cm x 8 cm., radiating all right side, going downwards into middle cronial foss, crossing the midline entering into lest middle cronial fossa in length 16 cm x 0.1 cm dividing the base of skull into two halves. Meningitis was torn in 4 cm to 3 cm."
6.3 The cause of death, which was assigned in the postmortem report, was Cranio Cerebral Damage. The PW 8, Dr. Pranav Vinodchandra Prajapati, in his evidence, has deposed that the injuries were sufficient in the ordinary course of nature to cause death, and were possible, if a weapon like axe is used in inflicting the injuries. The PW 8, Dr. Pranav Vinodchandra Prajapati, also deposed that, if a person uses a stick, then injury Nos.2,4 and 5, which the deceased had sustained, were possible.
6.4 The medical evidence on record speaks for itself. The complainant Mustafa had also sustained a fracture in his hand. His wife Meenaben had also sustained injury on her head, and Somiben, the deceased, had sustained serious injuries on her head, resulting in death. The oral evidence of the PW 1, Mustafa Majid Ansari, Exh.17, and the PW 2, Meenaben Ansari, Exh.18, is fully corroborated by the medical evidence on record. Even otherwise, it is not necessary for us to appreciate the evidence of the PW 1 and the PW 2 in detail, because the defence has not disputed the incident, but the plea is one of the right of private defence.
7. We may now examine, as to whether the accused appellants have been able to discharge the burden to establish the plea of self defence even on preponderance of probabilities.
8. Plea of the right of private defence:
8.1 The decision of the Supreme Court in the case of Rizan and another Vs. State of Chhattisgarh, AIR 2003 SC 976, very succinctly explains the law on the subject of the right of private defence. It will be profitable for us to quote the observations made by the Supreme Court in para Nos.13, 14 and 15 as under:
13. Then comes plea relating to alleged exercise of right of private defence. Section 96 IPC provides that nothing is an offence which is done on the exercise of the right of private defence. The Section does not define the expression 'right of private defence.' It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstance, a person acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defines was legitimately exercised it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 the burden of proof is on the accused who sets up the plea of self-defence and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not required to call evidence: he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. 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. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warning off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. See Munshi Ram and Ors. v. Delhi Administration, AIR (1968) SC 702; State of Gujarat v. Bal Fatima, AIR (1975) SC 1478; State of U.P. v. Mohd. Musheer Khan, AIR (1977) SC 2226 and Mohinder Pal Jolly v. State of Punjab, AIR (1979) SC 577). Sections 100 to 10! define the extent of the right of private defence of body. If a person has a right of private defence of body under Section 97, that right extends under Section 100 to causing death if there is reasonable apprehension that death of grievous hurt would be the consequence of the assault. The oft quoted observation of this Court in Salim Zia v. State of U.P., AIR (1979) SC 391, runs as follows:
"It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence."
The accused need not prove the existence of the right of private defence beyond reasonable doubt. It is enough for him to show as in a civil case that the preponderance of probabilities is in favour of his plea.
14. The number of injuries is not always a safe criterion for determining who the aggressor was, it cannot be stated as a universal rule that whenever the injuries are on the body of the accused person, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilises the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent so independent and disinterested, so probable, consistent and credit-worthy, that if far outweighs the effect of the omission on the part of the prosecution to explain the injuries. See Lakshmi Singh v. State of Bihar, AIR (1976) SC 2263. In this case, as the Courts below found there was not even a single injury on the accused persons, while PW2 sustained large number of injuries and was hospitalized for more than a month. A plea of right of private defence cannot be based on surmises and speculation.
While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right or private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show he had a right of private defence which extended to causing of death. Sections 100 and 101. IPC define the limit and extent of right of private defence.
15. Sections 102 and 105. IPC deal with commencement and continuance of the right of private defence of body and property respectively. The right commence, as soon as a reasonable apprehension of danger to the body arises from an attempt, or commit the offence, although the offence may not have been committed but not until that there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. In Jai Dev v. State of Punjab, AIR (1963) SC 612, it was observed that as soon as the cause for reasonable apprehension disappears and the threat has either been destroyed or has been put to route, there can be no occasion to exercise the right of private defence."
8.2 Bearing the aforesaid principles, as laid down by the Supreme Court in mind, we shall now proceed to examine the plea of the right of private defence. To make good the plea of the right of private defence, it is the case on behalf of the appellants that, as the original complainant Mustafa Ansari and Somiben had come at the house of the accused No.1, armed with weapons, and had laid an assault on the accused appellants, the accused appellants had to protect themselves, and in the process, the injuries were sustained by the complainant Mustafa and Somiben, the deceased. This defence deserves to be rejected outright for the simple reason that, there is not an iota of evidence that the complainant Mustafa and Somiben, the deceased, had any weapon in their hands. It may be true that the accused No.1 may also have lodged a First Information Report, but the defence never bothered to bring the said First Information Report on record during the course of the trial, so as to know the contents of the First Information Report. It may also be true that the trial against the complainant Mustafa and his wife Meenaben may be pending, as on today, but that by itself, is not sufficient to accept the plea of the right of private defence. The prosecution against the complainant Mustafa and his wife Meenaben will take its own course, on the basis of the evidence, which may be led during the course of the trial. Apart from the above, the Panchnamas of the person of both the accused appellants would go to show that there was not a scratch on the body of the accused appellants far from being assaulted by the complainant Mustafa and Somiben, the deceased, as asserted by the defence. It is true that the Investigating Officer, in his deposition, has admitted that both the accused appellants had been sent for medical examination, but the medical certificates have also not been brought on record.
9. In our opinion, taking into consideration the nature of the evidence on record, and more particularly, the manner in which the entire incident had occurred, the accused appellants are not entitled to the benefit of the plea of the right of private defence. We do not find the defence to be a reasonable and probable version, and there is no evidence, worth the name, to even remotely suggest that the injuries, caused by the accused persons, were necessary for either warding off the attack on the part of the complainant Mustafa and Somiben, the deceased, as alleged by the defence or for forestalling the further reasonable apprehension from the side of the accused appellants. Though the burden of shifting the plea of self defence is on the accused, and the burden would stand discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record, but in the present case, on overall re-appreciation and analysis of the entire evidence, we have no hesitation in coming to the conclusion that the accused appellants have not been able to discharge the burden even on the principle of preponderance of probabilities. In our opinion, the act of the accused appellants falls squarely within clause thirdly to Section 300 of the Indian Penal Code.
10. For the foregoing reasons, we do not find any merit in this appeal, and the same is, accordingly, dismissed. The order of conviction and sentence, imposed by the learned Sessions Judge against both the accused appellants, is hereby confirmed.
[BHASKAR BHATTACHARYA, CJ.] [J.B.PARDIWALA, J.] shekhar*