Lachmi Koeri vs The State Of Bihar on 4 August, 1959

Patna High Court

Lachmi Koeri vs The State Of Bihar on 4 August, 1959
Equivalent citations: AIR 1960 Pat 62, 1960 CriLJ 271
Author: Sahai
Bench: K Sahai, N Untwalia
JUDGMENT Sahai, J.
1. The Sessions Judge of Patna has convicted appellant Lachhmi Koeri under Section 302 of the
Penal Code and has sentenced him to undergo imprisonment for life. This Court issued notice to the
appellant to show cause why his sentence should not be enhanced if the conviction is upheld. The
appeal filed by the appellant and the rule for enhancement have been heard together and this
judgment will dispose of both.
2. Deceased Havildar Daud Khan was attached to Sultanganj Police Station of Patna town on
24-1-1957, and so was constable Sundcrdeo Kuer (P.W. 2). The prosecution case is as follows :
3. On 9-1-1957, a case under Sections 457 and 380 of the Penal Code, being Sultanganj police station
case No. 4 (1) 57, was registered against unknown persons. In the course of investigation of that
case, the officer in charge of the Police Station, Nasiruddm Ahmad Mallik (P.W. 22), suspected the
appellant's participation in the occurrence. As the appellant could not be found and arrested on
search, he prayed to the Subdivisional Magistrate of Patna City to issue a warrant of arrest and also
processes under Sections 87 and 88 of the Criminal Procedure Code against the appellant. Before
the warrant could, however, be issued, N. A. Mallick (P.W. 22) learnt some thing about the
appellant. He then deputed havildar Daud Khan and constable Sunderdeo Kuer to arrest him.
Station Diary entry No. 444 (Ext. 1/2) shows that the deputation was made at 8-10 a.m. on
24-1-1957.
4. It is further alleged that havildar Daud Khan and constable Sunderdeo Kuer were proceeding
upon the Dargah road when they saw the appellant coming out of a toddy shop. They chased him
and he ran towards the west. The havildar was ahead of the constable and he managed to catch him
at a short distance from the toddy shop. There was a scuffle between the havildar and the appellant
in the course of which the appellant's shirt was torn. The appellant then took out a chnoora from
his) waist and gave a blow with it on the havildar's arm. The havildar fell down in a nala by the side
of the road, while still holding the appellant who fell on him. The appellant then gave several blows
to the havildar, got out of the nala and fled towards the south. Constable Sunderdeo attempted to
catch him but he threatened that he would stab him also with his chhoora. It is said that this
happened at 8-30 a.m.
5. While the appellant was running away, constables, Rahamatullah (P.W. 4) and Chandrika Singh
(P.W. 18), arrieved there from Mosallahpur. hat where they had gone to purchase vegetables. They
took out havildar with the help of constable Sunderdeo from the nala. Kahamatullah then took the
havildar nn a rickshaw to the Patna General Hospital, arriving there at 9-18 a.m. as shown by the O.
D. slip (Ext. 2/1). It appears that the havildar died very shortly afterwards because Dr. Sycd Hasan
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Lachmi Koeri vs The State Of Bihar on 4 August, 1959

Mazid (P.W. 20) made a note (Ext. 10) on the bed head ticket of the havildar at 9-35 a.m. that he
was dead.
6. In the meantime, constable Sunderdeo rang up the Sultanganj Police Station at 9-10 a.m. from
somewhere close to the place of occurrence and gave information about the occurrence. This was
recorded in station diary entry No. 445 (Ext, 1/3) and Sub-Inspector Mallick (P.W. 22) immediately
left the Police Station along with Assistant Sub-Inspector Sheomangal Prasad Siugb {P.W. H) and
others for the place of occurrence. They arrived there at about 9-30 a.m. and, immediately, P.W. 11
recorded the fardbcyan (Ext. 6/1) on the statement of Sunderdeo at the instance of the
Sub-Inspector. After the farde-beyan was recorded, the Assistant Sub-Inspector went to the Police
Station under the orders of the Sub-Inspector who continued to investigate the case at the spot.
Station diary entry No. 446 (Ext. 1/1) shows that the Assistant Sub-Inspector returned to the Police
Station at 10-15 a.m. After instituting the present case which was Sultanganj Police Station case No.
8(1) 57, the Assistant Sub-Inspector alerted other police station about the occurrence and deputed 11
constables including constables, Ramdayal Singh (P.W. 9) and Churnau Pathak (P.W. 10) to go to
different places watch for the appellant rnd arrest him, if found.
7. P.Ws. 9 and 10 happened to he standing in front of Mithapur town out post, outside the Patna
Junction Railway Station, at abouj; 12-30 p.m. when they saw the appellant passing by. They
immediately chased him and arrested him near the taxi stand at a short distance to the southeast of
the town out post and he had a chhoora in his possession. They took him after arrest to the out post
and thereafter sent information on the "phone to Sultanganj police station. The information was
receiver! there at 1-30 p.m. and entry No. 450 (Ext.. 1'/5) was made in the Ration diary of that police
station at that very time. The Assistant Sub-Inspector (P.W. 11) immediately started on a Police
truck for. Mithapur town out post. He took the appellant from the out post to Sultanganj police
station, arriving there at 2-10 p.m. This has been recorded in station diary entry No. 452 (Ext. 1/6).
8. Sub-Inspector Mallick (P.W. investigated the case and, after completing investigation, he
submitted the charge sheet on 23-3-1957.
9. In his examination under Section 342 of the Code, the appellant merely said in answer to almost
all questions that he would file a written statement. Subsequently a long written statement was filed
on his behalf. It is, in fact, a written argument, and all kinds of trifling discrepancies in the evidence
have been pointed out, in it. The positive defence which has been taken is contained in paragraphs
15 to 25 which are as follows :
"15. That on the date alleged near the alleged P. O. the accused was suddenly caught and
merei-lessly stamped(?) by a stout and sturdy man wearing a lungi and a white ganji whom he could
not identify.
16.

That the

accused

wanted

to

free himself from his grip but by that time the accused w

17. That the accused felt unbearable pain.

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Lachmi Koeri vs The State Of Bihar on 4 August, 1959

18. That unable to free himself and apprehending that death will be the only consequence of suc

20. That to free himself the accused gave a few knife blows on the hand of the aforesaid man.

21. That the assailant snatched the knife and caused injury to the accused and during the snatc

22. The only thing that the accused remembers afterwards is that he found himself free from the

23. That after recovering sense the accused found himself in custody.

24. That the assailant did not disclose his identity at the time of catching the accused and wa

25. That the accused while in jail learnt that his assailant was Havaldar and his name was Daud

10. Appearing on behalf of the appellant, the first point which Mr. Ramnandan Sahay Sinha has
urged is that there was no case under Sections 457 and 380 of the Penal Code against the appellant
and that the prosecution case in this connection is false. In my opinion, there is no substance in this
argument. The Sub-Inspector (P.W. 22) has clearly said that a case under Sections 457 and 380 was
instituted in his police station on 9-1-1957, that it was originally investigated by the Assistant
Sub-Inspector and that subsequently he himself took over charge of its investigation. Ho has
admitted that the first information report of that case was against unknown persons but he wanted
to arrest the appellant as he suspected him. He appears to have brought the case diary of that case to
the Court when he was giving his evidence but he has not been cross examined in relation to the
contents of that diary.
The Assistant Sub-Inspector (P.W. 11) has supported the Sub-Inspector. He has said that the
appellant was wanted in Sultangnnj police station case No. 4 (1) 57 and hence havildar Daud Khan
and constable Sunderdco were deputed on 24-1-1957, to arrest him. The warrant (Ext. 12) for the
arrest of the appellant appears to have been issued by fhe Subdivisional Magistrate of Patna City on
24th January, i.e. on the same date on which the occurrence is alleged to have taken place in the
morning. In these circumstances. I have no doubt that the appellant was suspected in case No. 4 (1)
57 and the Sub-Insnector (P.W. 22) wished to arrest kirn or to get him arrested in connection with
that case. I further accept the prosecution case that havildar Daud Khan and constable Sunderdeo
were deputed at 8-10 a.m. on 24-1-1957 to arrest the appellant.
11. The next question is whether the occurrence took place as alleged by the prosecution. Four
witnesses have deposed as eyewitnesses, They are Sunderdeo (P.W. 2), Bhuar Dusadh (P.W. 5),
Janglt Mian (P.W. 7) and Saddique Mian (P.W. 8). One Gobardhan Chamar also deposed as an eye
witness tn the Committing Magistrate's Court but he was not available for examination in the
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Lachmi Koeri vs The State Of Bihar on 4 August, 1959

Sessions Court. Hence his evidence was admitted under Section 33 of the Evidence Act. but the
learned Sessions Judge has ignored his evidence and I also do not propose to refer to it. It has to be
considered, however, whether the four eye witnesses have given reliable evidence. Mr. Sinha has
criticised all of them and I propose to discuss his criticisms as also other points in order to decide
whether their evidence can be accepted.
12. Mr. Sinha has urged that Sunderdeo (P.W. 2) did not see the occurrence because he was not
there at all. He has first pointed out that this witness himself stated before the Committing
Magistrate that he and the havildar were at about 500 yards from the appellant when they saw him.
I do not see how this statement helps the appellant because the consistent evidence of P.W. 2 is that
he and the havildar ran to catch the accused and that the havildar., who was a little ahead of him,
caught him. Mr. Sinha has next pointed out that P.W. 7 stated before the Committing Magistrate
that he did not see any constable during the time of assault and that constables came there after the
assault.
No importance can be attached to this statement because ihe mere fact that he did not notice
constable Sunderdeo at the time of the assault cannot be taken to mean that Sunderdeo was not
there at all. P.Ws. 2 and 5 have stated that P.W. 2 was there and the presence of P.W. 2 at the place
of occurrence has also been proved bv other witnesses, including constables Rahamatuallha (P.W. 4)
and Chandrika (P.W. 18), P.W. 4 did not state in his examination-in-chief what Sunderdeo told him
but it was elicited from him in cross examination that Sunderdeo said that he and the havildar had
come and that the havildar was assaulted by the appellant with chhoora.
13. Mr. Sinha has also urged that there is a discrepancy in the evidence of P.W. 2 which shows that
he did not actually see the occurrence. The discrepancy arises like this. In the first information
report, P.W. 2 stated that he and the havildar found Lachhmi drinking tnddv in a toddy shop. In the
Committing Magistrate's Court, he stated that he did not see the appellant taking toddy in a toddy
shop, but saw him corning out of a toddy shop. In the Sessions Court ngain, he stated that he saw
the appellant talcing toddy. In cross examination in the Sessions Court, he made the position clear.
He has stated that he cannnot say which of the two toddy shops the appellant came out of and that
all that he saw was that the appellant started fleeing after coming out of a toddy shop. In my
opinion, the discrepancy is absolutely immaterial because, when one sees a person coming out of a
toddy shop, one may say figuratively that the man was drinking toddy.
14. Bhuar Dusadh (P.W. 5) is a sweeper working under the Municipal Corporation. The only
criticism advanced against him is that he has first stated that he was filling up ditches on the road
but has later admitted that he was filling up ditches fa the land of a Municipal Commissioner. The
Municipal Commissioner's land may have been by the side of the road and this apparent
contradiction may be due to that fact. He has not been asked how far the Municipal Commissioner's
land is from the road. It has been suggested that these witnesses have come forward to give evidence
at the instance of a man named Dr. Ainul Haq. The only connection which the Doctor appears to
have had with this case is that he was found sitting in the Committing Magistrate's Court at a time
when P.W. 2 was being cross examined there. There is no evidence at all to show that he is inimical
towards the appellant, or in fact, that he has any interest in this case. Abdul Shakur (P.W. 6) admits
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Lachmi Koeri vs The State Of Bihar on 4 August, 1959

that he is a step brother of Dr. Amul Haq. But the mere fact that he is related to the Doctor cannot
go to support the defence case that Dr. Ainul Haq has been manipulating evidence in this case.
15. Jangli Mian (P.W. 7) is a rickshaw driver. He says that he happened to be neat the place of
occurrence in his rickshaw and that he, therefore, saw it. There seems to be no reason for him to
have given false evidence against the appellant. The criticism against him is that he has not been
named in the first information report and that he does not appear to have been one of those
witnesses who were examined by the Sub-Inspector (P.W. 22) at the place of occurrence. This
criticism is correct, but I do not think that it is sufficient to enable me to throw out his evidence,
specially when he appears to be quite a disinterested witness.
16. Saddique Mian (P.W. 8) is also an employee of the Municipal Corporation. No criticism has been
levelled against him except that he is a co-employee of the Corporation with Bhuar Dusadh (P.W. 5).
It is not possible to discard his evidence on that account.
17. Having carefully considered the evidence of the 4 alleged eye witnesses, I hold that they are
perfectly reliable and that they have given a true version of the occurrence. Their evidence receives
considerable support from the evidence of constables Rahamatullah (P.W. 4) and Chandrika (P.W.
18) who arrived in time to see the appellant fleeing away and the havildar lying in the nala with
serious and bleeding injuries on his person.
18. Mr. Sinha has put forward the argument that the fardbeyan does not appear to have been
recorded at the place of occurrence as alleged by the Sub-Inspector and the Assistant Sub-Inspector
as well as other witnesses. In support of this argument, he has relied upon some statements which
constable Chandrika Singh (P.W. 18) has made. He has stated that he and Sunderdeo (P.W. 2) went
to the thana from the place of occurrence, that the Sub-Inspector was not there at that time, that he
did not meet the Sub-Inspector and the Assistant Sub-Inspector at the place of occurrence and that
he remained in the police station from 9 a.m. to 5 p.m. It sems to me that he has made these
statements because he has a weak memory and he could not remember what actually happened. The
evidence of the Sub-Inspector, the Assistant Sub-Inspector and constable Sunderdeo is just to the
contrary. P.W. 5 has stated that the Sub-Inspector arrived at the place of occurrence within a short
time after the occurrence. P.W. 6 has stated that the police came to the place of occurrence and
prepared seizure lists of the blood and the articles fallen there. P.W. 12 arrived at the place of
occurrence after hearing anonf the occurrence. He says that he saw two constables at the place of
occurrence before the arrival of the Sub-Inspector and that the constables were in their uniforms.
He obviously refers to constables Sunderdeo and Chandrika. The Sub-Inspector says that he
examined both these constables at the place of occurrence. Taking all these circumstances into
consideration, I hold that that constable Chaudrika has made some statements which are not correct
and that he has made them on account of failure of memory. I have not the slightest doubt that, as
deposed by the Sub-Inspector and the Assistant Sub-Inspeotor, the fardbeyan was recorded by the
Assistant Sub-Inspector (P.W. 11) at the place of occurrence on the statement of Sunderdeo.

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Lachmi Koeri vs The State Of Bihar on 4 August, 1959

19. In view of the evidence of identification given by the eye witnesses as well as P.Ws. 4 and 18,
there cannot be any doubt about the identity bf the appellant as being the assailant of havildar
Daud. The fact that the occurrence took place between the appellant and the havildar is also
admit-ted in that part of the written statement filed on behalf of the appellant which I have quoted
above. It is also in evidence that a fountain pen (Ext. I), a muffler (Ext II) and a booklet of songs
(Ext. III) belonging to the appellant fell at the place of occurrence during the scuffle between him
and the havildar. P.W. 12 has said that he saw the appellant at 8 a.m. on the same morning with the
muffler (Ext. II) round his neck. In my opinion, there is not much importance in the identification of
the articles, Exts. I, II and III, and their identification as belonging to the appellant supports the
other evidence to a very small extent.
20. On a consideration of all the facts and circumstances of the case and the entire evidence on
record I hold that the occurrence took place in the manner alleged by the prosecution and that it was
the appellant who caused injuries to the Havildar with a chhoora.
21. The next question is whether the appellant) had a right of private defence. Mr. Sinha has argued
that he had. There seems to be some substance in this argument. The Sub-Inspector deputed the
havil-dar and the constable to arrest the appellant but he did not comply with the requirements of
Section 56 of the Code. In accordance with the provisions of that section, he should have given an
or,der in writ-ing to them but he did not do so. If he had given an order in writing, the havildar
would have been required to notify to the appellant before his arrest a substance of that order.
As there was no order in writing, this could I also not be complied with. Section 54 empowers any
police officer to make an arrest without warrant but none of the circumstances mentioned in it
appears to have been present, so as to entitled the havildar to arrest the appellant without warrant.
Constable Sunderdco has stated that he was nof told in connection with what particular case the
appellant was to be arrested nor was he told about any particular crime. Neither he nor the havildar
appears to have had any credible information or reasonable suspi-cion against the appellant. The
Sub-Inspector also does not say thai he gave any information about any case to them at the time of
deputing them to arrest the appellant. In view of these facts, it is perfectly clear that the havildar was
not acting strictly in accordance with faw in arresting or attempting to arrest the appellant.
22. The question still remains whether the appellant had a right of private defence against the
havildar who was a public servant, Section 99 of the Penal Code provides that 'no right of private
defence' is available 'against an act which does not reasonably cause thn apprehension of death or
of. grievous hurt, if done, or attempted to be done,' by a public servant acting in good faith under
colour of his office, though that act may not be strictly justifiable by law.' Explanation 1 of that
section reads :
"A person is not deprived of the right of private defence against an act done, or attempted to be
done, by a public servant, as such, unless he knows or has reason to believe, that the person doing
the act is such public servant."

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Lachmi Koeri vs The State Of Bihar on 4 August, 1959

There is no evidence in this case whatsoever to show that the appellant knew the havildar from
before the dale of occurrence. The learned Sessions Judge has assumed from the fact that the
appellant started running away on seeing the havildar and the constable that he must have known
both. The evidence, on record, however, shows that the havildar was not in uniform. P.W. 5 has said
that the havildar had a sarkari ganji and a lungi and nothing else on his person.
23. P.W. 8 has stated that the havildar was not in uniform. The letter (Exi. 1.1) written by Dr. Mazid
(P.W. 20) to the Sub-Inspector of Sultanganj police station shows that the clothes which were taken
out of the person of the havildar consisted of one shirty one woollen sweater, one lungi and one
ganji. There can be no doubt, therefore, that the havildar was not in uniform. On the other hand,
P.W. 8 states that the constables were in uniform. Constable Sunderdeo, therefore, appears to have
been in his uniform. It may be that the appellant saw his uni form and, therefore, started running
away. I am, therefore, unable to agree with the learned Sessions Judge's view. As there is nothing to
show that the appellant knew that the man who had caught him was a havildar of police and a public
servant. I do not think he can be held to have been deprived of his right of private defence. In my
opinion, there is no doubt that he initially had the right of private defence.
24. It is clear from the evidence that the appellant could not entertain any fear of grievous hurt or
death from the havildar. The question which arises is whether he can be held to have merely
exceeded! the right of private defence in committing the murder. Exception 2 to Section 300 of the
Penal Code reads :
"Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private
defence of person or property, exceeds the power given to him by law and causes the death of the
person against whom he is exercising such right of defence without premeditation and without any
in-tention of doing more harm than is necessary for the purpose of such defence."
25. In my opinion, it cannot be held in the circumstances of this case that the appellant had no
intention of doing more harm than was necessary for the purpose of his defence. The evidence of
P.Ws. 2, 7 and 8 shows that the first blow given with a chhoora by the appellant to the havildar fell
on the havildar's forearm. Immediately on receiving that blow, the havildar fell in the nala. The
evidence of all the eye witnesses shows that the havildar was holding the appellant when he fell and
that the appellant also fell on him in the nala and thereafter the appellant gave him incessant blows
with) his chhoora. As a result, no less than 9 incised injuries were caused to the havildar. Dr.
Hussain (P.W. 16) found all of them on the upper part of the body, some being on the face. The most
serious injury was injury No. 8, described as follows :
"One oblique incised penetrating wound 1 1/2" x 1/2" cranial cavity in the left eye-lid extending :
from its middle to the inner end of the eye. The external axis of the wound was directed abovewards
and inwards."
The doctor has further stated :

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"On dissection of injury No. 8, the muscles of the eye-balls and soft tissues at the upper and inner
part of the left eye were cut. The left nasal bone was found fractured. The left tissues of the orbit
tbove the eye-ball were cut and ecchymosed. The eye-ball was intact. The left orbital plate of the
frontal bone was fractured and perforated 3/4" x 1/2" half of inner end of the under surface of the
left frontal lobe of the brain and 2 1/2" of the front of the right frontal lobe (under surface) was cut
and about 2 1/4" deep."
26. In view of the injuries caused, I am per-pectly satisfied that the appellant intended to cause very
much more harm than was necessary for his defence; in fact, he appears to have inflicted most of the
injuries including the fatal one at a time when the havildar was lying helpless under him. Mr. Sinha
has argued that the appellant's right of private defence extended to the causing of all those injuries
because he himself was found to have a number of injuries on his person and he received them at
the time of his scuffle with the havildar. It is true that the appellant had a number of injuries on his
person, when he was examined at 4-15 p.m, on the date of occurrence i.e. 24-1-1957. Dr. L. K.
Thakur (P.W. 17) examined him at that time. He has described the number of abrasions and bruises
which he found upon the appellant's person. The appellant was again examined by the Jail Doctor
(P.W. 19) on the same date at 10 p.m. He says that hd found signs of bleeding from the nose and
multiple bruises and abrasions all over the appellant's body. He also found the appellant's upper and
lower lips swollen.
27. Eandayal Singh (P.W. 9), who was one of the constables who arrested the appellant, has stated
that the appellant was severely assaulted by members of the public after his arrest which was
effected after dhakha dhukki and use of force. The Assistant Sub-Inspector (P.W. 11), who went to
Mithapur town out post shortly after the appellant's arrest, says that he found the appellant lying on
the floor and that he was not speaking1 and was pretending to be senseless. It is also ordinarily seen
that, when an offender is arrested, the members of the crowd who assemble assault him rather
severely. There is. therefore, no reason to disbelieve the evidence of these two witnesses.
Dr. Thakur has stated that the injuries were fresh at the time of examination. Accordingly, I hold
that, while the appellant may have received one or two abrasions at the time of scuffle with the
havildar, he received most of the injuries found on his person later at the time of his arrest. Hence I
am not prepared to accept Mr. Sinha's argument that the right of private defence available to the
appellant extended to the causing of the injuries including the fatal injury which he caused : to the
havildar.
28. On a consideration of the facts and circumstances mentioned above, I have reached the
conlu-sion that, while initially the appellant had the right of private defence, he does not come
under Excep-tion 2 to Section 300 and it cannot be held that his right of private defence extended
upto the causing of the havildar's death. That being so and also because he obviously intended to
cause a bodily injury to the havildar which was likely, in the ordinary course of nature, to cause his
death, he is guilty under Section 302 of the Penal Code. I uphold his conviction under that section.
29. The last question which has to be considered is the question of sentence. Two considerations
0rise in this connection. The appellant had the right of private defence of person at the start. He
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Lachmi Koeri vs The State Of Bihar on 4 August, 1959

could not be expected to make a balanced judgment at the time and to desist from intentionally
causing death. I am, therefore, of the view that the sentence of imprisonment for life is sufficient to
meet the tends of justice in this case, I, therefore, affirm that sentence, dismiss the appeal and
discharge the rule for enhancement.
Untwalia, J.
30. I agree.

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