LexBIHARI RAI versus STATE OF BIHAR (NOW JHARKHAND)
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[2008] 13 S.C.R. 1027 -;) BIHARI RAI A V. STATE OF BIHAR (NOW JHARKHAND) (Criminal Appeal No. 1536 of 2008) ~~ SEPTEMBER 26, 2008 B [DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM SHARMA, JJ.] Penal Code, 1860 : ss. 304 (Part !), s. 300 Exception 4 - Death caused - By c three accused - Eye-witnesses to the incident - Motive attrib- uted - Conviction by trial Court uls 302134 /PC - High Court altering the conviction of one accused u/s 304 (Part I) and acquitting the co-accused - On appeal by convicted accused, .__. Held: In the facts of the case, conviction u/s 304 (Part I) car- D reef - Non-examination of one of the Investigating Officers, non-mention of names of other eye-witnesses by the informant- eye-witness and non-production of Station Diary Entry before court not fatal for prosecution in the facts of the case - Claim· of right of private defence also not proved. E ss. 96 to 98 and 100 to 106 - Right to private defence - Exercise of - When - Discussed. Appellant-accused alongwith two co-accused were ---1 prosecuted for causing death of one person. Prosecu- F tion case was that the accused assaulted the deceased. PW-1 on hearing the noise, when came near the place of occurrence, saw the accused assaulting his father. PWs 2, 5, 6 and 7 were other eye-witnesses to the occurrence. Motive for the incident was said to be long standing dis- G pute between the parties. Trial court, placing reliance on the evidence of eye-witnesses held all the three accused ·--./. guilty of offence u/s 302/34 IPC. High Court altered the conviction of appellant-accused to one u/s 304 Part I find- 1027 H 1028 SUPREME COURT REPORTS [2008] 13 S.C.R. A ing that the case fell u/s. 300 Exception 4. The two co- accused were acquitted. In appeal, the appellant-accused contended that conviction was not called for in view of the facts that in Fardbeyan, PW-1 did not mention the names of PWs 2, 6, 8 and 7; that the assault was done in private defence; that one of the Investigating Officers was not examined; and that first information regarding the incident which was recorded in the station entry was not produced in the c Court. Dismissing the appeal, the Court HELD: 1. The accused has been rightly convicted u/ s. 304(Part I) IPC. Non-examination of one of the lnvesti· gating Officers, does not in any way corrode the credibil· D ity of the prosecution version. Non-mention of the names of PWs 2, 6 and 7 by P.W. 1 is also not fatal. He on hearing the cries of his father (the deceased) was rushing towards the place of occurrence. Obviously, the focus was on what was happening to his father. In any event, inspite of inci· E sive cross-examination nothing fragile was surfaced in his evidence. It has also been established by prosecution that the Station Diary Entry related to some vague information about disturbance in the village, cannot take place of the FIR. [Paras 10, 11, 12 and 19) [1037,B; 1034,D-G) F 2.1 The right of private defence as claimed by the ac· cused persons have been rightly discarded. Merely be· cause there was a quarrel and some of the accused per- sons sustained injuries, that does not confer a right of private defence extending to the extent of causing death G as in this case. Though such right cannot be weighed in golden scales, it has to be established that the accused persons were under such grave apprehension about the safety of their life and property that retaliation to the ex- tent done, was absolutely necessary. No evidence much H less cogent and credible was adduced in this regard. The BIHARI RAI v. STATE OF BIHAR 1029 ~ (NOW JHARKHAND) High Court has referred to the evidence of PWs. 2, 6 and A 7 to conclude that just before the arrival of PW 1 at the scene of occurrence, there was a quarrel between the de- ceased and the accused. In that view of the matter, the High ' Court accepted the plea that the occurrence took place in ~ __ _,, the course of sudden quarrel. [Para 16,17] [1036,E,H] B 2.2 The number of injuries is not always a safe crite- rion for determining who the aggressor was. It cannot be stated as an universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had c caused injuries in exercise of the right of private defence. The defence has to further establish that the injurtes so caused on the accused probabilises the version of the right
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