Principles

·  CRIMINAL LAW — Culpable homicide not amounting to murder—penal Code, s.249(2) Exceeding right of private defence

·  CRIMINAL LAW— “Likely” — Penal Code, ss. 246(b) and 20A..

·  EVIDENCE — Hearsay — Dying declaration exception — Conviction legal though based on uncorroborated dying declaration.

Accused No. 1 was attacked by deceased and they fell to the ground wrestling unarmed. Accused No. I then picked up his Khanger and stabbed and killed deceased.

Held: (i) Because accused was unable to prove that he thought honestly but mistakenly because of the great excitement that he was in danger of death or serious injury, he may not avail himself of the partial defence under Penal Code, s. 249(2)

(ii) Because no reasonable man would have been surprised had the deceased survived these injuries, death was known to be only -a likely result within the meaning of Penal Code. s. 20A, and the defendant is guilty of culpable homicide not amounting to murder under Penal Code, s. 253.
Obiter dictum: Conviction of Accused No. 2 on the uncorroborated  dying declaration of deceased would not have been illegal.

Judgment

Babiker  Awadalla, .1., October 7, 1957:— 1 would confirm finding and sentence in this case.

It is one of those cases where a decision is difficult to arrive at by reason simply of the fact that there were no witnesses. Accused No. 1 — the main Accused in the case — is fortunately confessing, but Accused No.2 denies having taken any role in the fight between the deceased and Accused No. 1. We have either to accept or to reject the dying declaration of the deceased who alleged it was Accused No. 2 who held him from the back while Accused No. 1 delivered the stabs.

Accused No. 2 is an adolescent who has been medically assessed at 14. His conviction upon the mere uncorroborated dying declaration of deceased would not have been illegal. Ratanlal, Law of Evidence 89 (12 ed. 1953). In fact, the Madras and the Lahor High Courts have held that if the Court, after taking everything into consideration, is convinced that a dying declaration is true, it is its duty to convict, notwithstanding that there is no corroboration in the true sense. Ratanlal, Law of Evidence 90 (12ed. 1953). However, as the Court has doubts in its mind as to the authenticity of the deceased’s statement as well as to the depositions by which it was proved, I see no reason for our intervention on the finding of acquittal.

As regards Accused No. .1, I agree with the Court’s conclusion that it was a case of culpable homicide, though I do not agree with the Court’s reasons for that conclusion.

The theory of “an excessive exercise of the right of private defence” in this case is in my view quite unsound. The deceased was unarmed his stick having been broken at the inception of the fight when he threw it at Accused No. 1 from a distance. I notice that even our experienced judges often go astray in their application of Penal Code, s. 249(2). They seem to consider that the operative words in this exception are “exceeds the power given to him by law.” But this section postulates three-requisites:

1. Good faith,
2.  Absence of premeditation, and
3. Absence of an intention to do unnecessary harm.

The cumulative effect of these three exceptions is that the accused was placed in such circumstances that he honestly thought that if he did not kill, he would be killed or suffer serious injury. In other words, the accused must prove that the circumstances were such tha the was entitled to believe that the case was covered by Penal Code, s. 61. He must convince the Court that there was some assault of some serious nature on the part of the deceased but that he over-stressed its seriousness on account of “the natural want of judgment which a person cannot be expected to possess at a moment of great excitement,or ... of an exaggerated sense of the danger.” 2 Gour, Penal Law of India 1426 (7th ed. 1961). Otherwise the killing would be intentional.

However, I think that the case is still one of culpable homicide. No reasonable man would have been surprised had the deceased survived these injuries. In India a case of this sort would not even have been considered culpable homicide not amounting to murder. 2 Gour, Penal Law of India 1261 (8th ed. 1955) says, “the forearm or a knee is not a vital part of the body. An ordinary person is not presumed to know the precise location of the arteries in the human limbs. If, therefore, a stab with a knife or dagger aimed at an arm or leg severs an artery and the injured man dies as a result, the offence is not murder or culpable homicide not amounting to murder, and the assailant can be held guilty of causing grevious hurt with a dangerous weapon.”

I therefore think that the answer of the Court to question 3 was wrong.

M.A. Abu Rannat, C.J., October 7, 1957: I agree and have made the necessary orders on the record.