Sec.302 IPC -vs- Section 304 Part I of IPC - Disputes over the properties - Sudden fight - Exceeding private defence - sec.34 IPC not applicable- Trail court convicted under sec.302 IPC - High court converted to sec.304 part 1 of IPC- Apex court held that The facts in the present case, as we understand, are similar to the factual score in the aforesaid case because the right of private defence had only been exceeded by Rajkumar. In such a case, the guilt of each of the accused, who had exceeded the right of private defence,has to be dealt with separately. The matter would have been totally different, had the right of private defence did not exist at all or the accused persons had done any overt act. Thus, in our considered opinion, the constructive liability, as envisaged under Section 34 IPC, is not attracted.In view of our aforesaid analysis, we do not perceive any merit in these appeals and, accordingly, they are dismissed.=
High Court has partly allowed the appeal of Raju @
Rajkumar by converting his conviction under Section 302 IPC to one
under Section 304 Part I of IPC and further confirming his conviction
under Sections 25 and 27 of the Arms Act and sentencing him to suffer
rigorous imprisonment for ten years and to pay a fine of Rs.500/-, in
default of payment of fine, to suffer further six months rigorous
imprisonment. Hemant Kumar, a co-accused along with Raju and Manoj
Kumar, who had preferred an independent appeal, has been acquitted of
all charges.=
In Joginder Ahir and others v. The State of Bihar[8],
the Court
referred to the decision in Nathu Pandey and others (supra) and
dealing with the applicability of Section 34 IPC, taking into
consideration almost similar findings, opined that there was no common
intention on the part of all the accused persons to commit the crime.
In the said case, the High Court had convicted the accused-appellants
therein under Section 304 Part II in aid of Section 34 IPC.
Dealing
with the same it has been held as follows: -
“We are unable to concur with the view of the High Court that
any such common intention could be attributed to the appellants
on the facts and in the circumstances of the case. They
certainly had the common intention of defending the invasion of
the right to property. While doing so if one or two out of them
took it into his or their heads to inflict more bodily harm than
was necessary, the others could not be attributed the common
intention of inflicting the injuries which resulted in the death
of the deceased. Section 34 can only be applied when a criminal
act is done by several persons in furtherance of the common
intention of all. No overt-act had been proved or established
on the part of the appellants which showed that they shared the
intention of the person or persons who inflicted the injury or
injuries on the head of the deceased which led to his death.
They cannot, therefore, possibly be held guilty of an offence
under Section 304, Part II, read with Section 34 of the Indian
Penal Code.”
17. The facts in the present case, as we understand, are similar to the
factual score in the aforesaid case because the right of private
defence had only been exceeded by Rajkumar.
In such a case, the guilt
of each of the accused, who had exceeded the right of private defence,
has to be dealt with separately.
The matter would have been totally
different, had the right of private defence did not exist at all or
the accused persons had done any overt act.
Thus, in our considered
opinion, the constructive liability, as envisaged under Section 34
IPC, is not attracted.
18. In view of our aforesaid analysis, we do not perceive any merit in
these appeals and, accordingly, they are dismissed.
2014 judis.nic.in/supremecourt/filename=41407
K.S. RADHAKRISHNAN, DIPAK MISRA
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 885 OF 2007
State of Rajasthan ...Appellant
Versus
Manoj Kumar ...Respondent
With
CRIMINAL APPEAL NO. 1073 of 2007
State of Rajasthan ...Appellant
Versus
Raju @ Raj Kumar & Anr. ...Respondents
J U D G M E N T
Dipak Misra, J.
The present appeals, by special leave, have been preferred
against the common judgment and order dated 14.2.2006 passed by the
High Court of Judicature for Rajasthan, Jaipur Bench at Jaipur in D.B.
Criminal Appeal No. 396 of 2000 and D.B. Criminal Appeal No. 1011 of
2003, wherein the High Court has partly allowed the appeal of Raju @
Rajkumar by converting his conviction under Section 302 IPC to one
under Section 304 Part I of IPC and further confirming his conviction
under Sections 25 and 27 of the Arms Act and sentencing him to suffer
rigorous imprisonment for ten years and to pay a fine of Rs.500/-, in
default of payment of fine, to suffer further six months rigorous
imprisonment. Hemant Kumar, a co-accused along with Raju and Manoj
Kumar, who had preferred an independent appeal, has been acquitted of
all charges.
2. At the very outset we may state that Raju @ Rajkumar has expired on
8.3.2012 and in proof thereof a death certificate has been brought on
record. In view of the same, the Criminal Appeal No. 1073 of 2007
would stand abated as far as Raju @ Rajkumar is concerned and would
only survive against the accused Hemant Kumar.
3. The prosecution case, in brief, is that the police recorded the
statement of deceased Anirudh Mishra at Sri Kalyan Hospital Sikar on
May 26, 1998 who had stated that around 8:30 p.m. on that day he along
with his brother Basant Mishra, PW 4, and Mahesh Kumar Saini, PW 3,
had gone to the vacant plot belonging to him and his brother situated
at Lisadia ka Bas being apprehensive that that sons of Ram Niwas and
Shanti Prasad would take possession of the plot. At that point of time
sons of Ram Niwas and Shanti Prasad were present at the house of
Phoolji Lisadiya situate adjacent to the plot. As per his version,
they first abused him and thereafter opened fire as a result of which
he had sustained a gun shot injury on the right side of his chest and
his brother Ramesh @ Umesh, PW 5, had brought him to the hospital. On
the basis of his statement the concerned police officer registered FIR
No. 243 of 1998 for the offences punishable under sections 307 and 149
of IPC. However, after the death of Anirudh, the offence was converted
to one under section 302 IPC and investigation commenced. During the
course of investigation, Raju and Hemant were arrested and Manoj was
declared as an absconder. A charge sheet was filed against Raju and
Hemant for the offences under sections 302, 302/34 IPC and for
offences under Section 3/25, 3/27 and 3/33 of the Arms Act and it
became the subject matter of S.C. No. 34 of 1998. After Manoj was
arrested, a charge sheet was submitted against him for the offence
under Section 302/34 of IPC and he faced a separate trial in S.C. No.
8 of 2002.
4. The accused persons abjured their guilt and pleaded false implication
because of property dispute and animosity. In order to prove its
case the prosecution in the first trial examined as many as sixteen
witnesses and got marked thirty-seven documents and also brought eight
articles on record. In the second trial, the prosecution examined as
many as twelve witnesses and similar numbers of documents were
exhibited. In the second trial the defence produced one witness and
tendered four documents in support of its plea.
5. The witnesses in both the trials are common and the prime witnesses,
as mentioned in first trial are, Anjani Kumar, PW 1, brother of the
deceased, Mahesh Kumar Saini, PW 2 an eye witness, Basant Kumar, PW-4,
brother of the deceased, PW 5, Ramesh @ Umesh, another brother of the
deceased, Dr. V.K. Soni, PW 6, who had examined the deceased and
prepared the x-ray report, Dr. G.R. Tanwar, PW 10, who had conducted
the post-mortem and Bhagwan Singh, PW 12, the Investigating Officer.
After examining the oral and documentary evidence the learned trial
Judge convicted Raj Kumar under section 302 read with Section 34 IPC
and also under Sections 25/27 of the Arms Act, and Hemant for the
offences under Section 302/34 IPC. In the second trial, accused Manoj
was convicted under Section 302/34, IPC.
6. The accused persons preferred two separate appeals and the High Court
in its common judgment and order accepted the stand of all the accused
persons relating to right of private defence. However, as the accused
Raju has exceeded the right of private defence, the High Court
converted his conviction to one under Section 304 Part-I IPC and
sentenced him as stated hereinbefore. As far as accused Hemant and
Manoj are concerned, it opined that their conviction could not be
sustained in aid of Section 34, IPC, for in the obtaining facts and
circumstances Section 34 was not applicable.
7. We have heard Mr. Milind Kumar, learned counsel appearing for the
State and Mr. Sushil Kumar Jain, learned counsel appearing for the
respondent.
8. Two questions that emerge for consideration in these appeals, are (i)
whether the High Court was justified in accepting the contention of
right of private defence; and (ii) whether the conclusion of the High
Court that Section 34 IPC could not be attracted regard being had to
the factual score, is correct.
9. On a perusal of the judgment of the learned trial Judge, it is
demonstrable that he has set out in detail that a dispute existed
between the parties over the possession of land in question. He has
arrived at the conclusion that as per the evidence brought on record,
both ocular and documentary, Parasram Lisadiya had sold the plot to
Ramesh Kumar, the elder brother of the deceased, Anirudh Mishra, vide
Registered Sale-deed, Ex.P-9. It has been brought on record that a
dispute in regard to the plot was in existence between Parasram
Lisadiya and Phool Chand Lisadiya and it has led Parasram to file the
civil suit No. 131 of 1986 for permanent injunction wherein it was
alleged that on 11.7.1986 Phool Chand had obstructed Parasram from
commencing the construction on the plot. On 17.9.1997 the suit for
permanent injunction was decreed ex-parte against Phool Chand
restraining him from interfering with the possession of Parasram over
the land in question. It is also reflectible from Ex.P-9 that by the
time the suit was decided in favour of the plaintiff, Parasram had
already sold the plot vide Registered Sale-deed, Ex.P-9, to Ramesh
Mishra, who had obtained sanction for construction vide Ex.P-12 and
the site plan vide Ex.P-14. The events happened in quick succession
and Ramesh, after obtaining necessary sanction, had started collecting
material for construction. It has come in the evidence of Ramesh, PW-
5, that the dispute existed between Parasram and Phool Chand over the
possession even after the sale-deed was executed. It has also come on
record that sanction for construction was obtained only four days
prior to the incident; and that a cavil existed in regard to the plot
between the informant and the accused persons as the original owner,
Phool Chand had mortgaged the said plot to Shanti Prasad, father of
the accused and they were in possession. As we notice from the
evidence on record, there can be no iota of doubt that Rajkumar has
fired the gunshot as a consequence of which Anirudh breathed his last.
It is also clear that there was a dispute over the land and the
possession still remained with the accused persons. It is also borne
out from the evidence that the accused persons were not parties to the
suit. In such a situation, Ramesh was trying to raise construction by
collecting material at the site and, in fact, to take over possession,
had sent his brother Anirudh and other brothers. After the deceased
and the others came at the site the accused persons, getting the
information, had reached to the house of Risadiya and initially a
verbal altercation took place and, eventually, a gunshot was fired.
10. The High Court has taken into consideration various aspects, namely,
there was dispute with regard to the ownership and possession over the
plot in dispute; that the informant and others had gathered the
materials for construction of the plinth few days before the incident;
that the municipal council has granted sanction only four days prior
to the incident; that Ramesh, PW-5, and others were apprehensive that
they would lose possession; that an affirmative plea relating to
possession by the accused persons had been taken; and that the accused
Rajkumar with the intention to defend the possession of the property
and to drive away the deceased and others had opened the fire, but,
unfortunately, it hit the deceased. On the aforesaid analysis of the
evidence, the High Court was persuaded to hold that the accused
Rajkumar had exceeded his right of private defence.
11. Mr. Milind Kumar, learned counsel for the State, has submitted that
the accused persons had not taken the plea of right of private defence
in their statement under Section 313 of the Code of Criminal Procedure
and hence, the High Court could not have adverted to the same. It is
further put forth that even assuming the stand can be considered, in
the case at hand the accused persons have miserably failed to
discharge the burden in establishing their right of private defence.
In this context, we may refer with profit to the pronouncement in
Munshi Ram and others v. Delhi Administration[1] wherein it has been
laid that even if an accused does not take the plea of private
defence, it is open to the court to consider such a plea if the same
arises from the material on record and burden to establish such a plea
is on the accused and that burden can be discharged by showing
preponderance of probabilities in favour of that plea on the basis of
material on record. In Salim Zia v. State of Uttar Pradesh[2] the
observation made by this Court to the effect that 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 prosecution
witnesses or by adducing defence evidence. Similarly, in Mohd.
Ramzani v. State of Delhi[3], it has been held that it is trite that
the onus which rests on an accused person under Section 105, Evidence
Act, to establish his plea of private defence is not as onerous as the
unshifting burden which lies on the prosecution to establish every
ingredient of the offence with which the accused is charged, beyond
reasonable doubt.
12. In the case at hand, the plea of right of private defence arises on
the base of materials on record. As far as onus is concerned, we find
that there is ocular and documentary evidence to sustain the concept
of preponderance of probability. It can not be said that there is no
material on record or scanty material to discard the plea. Thus, the
aforesaid submission being unacceptable, are hereby repelled.
13. Learned counsel for the State next contended that when the accused
persons had exceeded their right of private defence and caused the
death of the deceased, all of them should have been convicted under
Section 302/34 IPC. In this regard, we may refer with profit to
certain authorities before we advert to the facts unfurled in the case
at hand. In Munshi Ram (supra), while dealing with right to private
defence, this Court has observed that law does not require a person
whose property is forcibly tried to be occupied by trespassers to run
away and seek the protection of the authorities, for the right of
private defence serves a social purpose and that right should be
liberally construed. The Court further stated that such a right not
only will be a restraining influence on bad characters but it will
encourage the right spirit in a free citizen, because there is nothing
more degrading to the human spirit than to run away in the face of
peril. In Mohd. Ramzani (supra) the Court has observed that it is
further well-established that a person faced with imminent peril of
life and limb of himself or another, is not expected to weigh in
“golden scales” the precise force needed to repel the danger. Even if
he in the heat of the moment carries his defence a little further than
what would be necessary when calculated with precision and exactitude
by a calm and unruffled mind, the law makes due allowance for it. In
Bhanwar Singh and others v. State of Madhya Pradesh[4] it has been
ruled to the effect that for a plea of right of private defence to
succeed in totality, it must be proved that there existed a right to
private defence in favour of the accused, and that this right extended
to causing death and if the court were to reject the said plea, there
are two possible ways in which this may be done, i.e., on one hand, it
may be held that there existed a right to private defence of the body,
however, more harm than necessary was caused or, alternatively, this
right did not extend to causing death and in such a situation it would
result in the application of Section 300 Exception 2.
14. On the touchstone of the aforesaid principles, the evidence brought on
record and the conclusion arrived at by the High Court have to be
tested. There is material on record that there were altercations
between the accused and the deceased on the one hand and the others
and there was threat that the informant and others would take over
possession. The High Court has found that there was a threat to the
property of Raj Kumar and he had made an effort to drive away the
informant and others. Though the prosecution has come out with the
version that the accused persons were trying to take over possession,
yet on a scrutiny of the evidence it becomes quite vivid that they
were in a hurry to raise construction at the site and, accordingly,
were taking steps. In this context, the act of the accused is to be
adjudged. It has to be appreciated regard being had to the
surrounding circumstances and not by way of microscopic pedantic
scrutiny, as has been held in Vidya Singh v. The State of Madhya
Pradesh[5] and Sikandar Singh and others v. State of Bihar[6]. True
it is, he had fired a gunshot but it was really not with the intention
to cause the death of the deceased. The prosecution has not brought
any material on record that the said accused was vindictive, or he had
any malicious intention to cause the death of the deceased. Had that
been there, then it would have been totally contrary to the concept of
right of private defence. That being the position, the High Court has
rightly accepted the submission that Raj Kumar had exceeded the right
of private defence and has correctly found him guilty under Section
304 Part I IPC.
15. Presently, we shall advert to the facet of justifiability of the
acquittal of the accused persons who had accompanied the accused who
had fired the gunshot. Learned counsel for the State would urge that
as they had come to the spot with the accused Raj Kumar and they had
the common intention. Even if there was no prior intention, submits
Mr. Milind Kumar, learned counsel for the State, it developed on the
spot. On a perusal of the evidence, we find that accused Manoj Kumar
and Hemant Kumar had accompanied accused Rajkumar to defend the right
of possession. It is a case where accused Rajkumar exceeded the right
of private defence. A three-Judge Bench in State of Bihar v. Nathu
Pandey and others[7], while accepting the reasoning of the High Court
that some of the accused persons had exceeded the right of private
defence, opined that when it is not possible to say that all the
accused persons have the common object to commit murder and only
those, who exceeded the right of private defence, would be held
responsible for their murders.
16. In Joginder Ahir and others v. The State of Bihar[8], the Court
referred to the decision in Nathu Pandey and others (supra) and
dealing with the applicability of Section 34 IPC, taking into
consideration almost similar findings, opined that there was no common
intention on the part of all the accused persons to commit the crime.
In the said case, the High Court had convicted the accused-appellants
therein under Section 304 Part II in aid of Section 34 IPC. Dealing
with the same it has been held as follows: -
“We are unable to concur with the view of the High Court that
any such common intention could be attributed to the appellants
on the facts and in the circumstances of the case. They
certainly had the common intention of defending the invasion of
the right to property. While doing so if one or two out of them
took it into his or their heads to inflict more bodily harm than
was necessary, the others could not be attributed the common
intention of inflicting the injuries which resulted in the death
of the deceased. Section 34 can only be applied when a criminal
act is done by several persons in furtherance of the common
intention of all. No overt-act had been proved or established
on the part of the appellants which showed that they shared the
intention of the person or persons who inflicted the injury or
injuries on the head of the deceased which led to his death.
They cannot, therefore, possibly be held guilty of an offence
under Section 304, Part II, read with Section 34 of the Indian
Penal Code.”
17. The facts in the present case, as we understand, are similar to the
factual score in the aforesaid case because the right of private
defence had only been exceeded by Rajkumar. In such a case, the guilt
of each of the accused, who had exceeded the right of private defence,
has to be dealt with separately. The matter would have been totally
different, had the right of private defence did not exist at all or
the accused persons had done any overt act. Thus, in our considered
opinion, the constructive liability, as envisaged under Section 34
IPC, is not attracted.
18. In view of our aforesaid analysis, we do not perceive any merit in
these appeals and, accordingly, they are dismissed.
………………………….....…….J.
[K. S. Radhakrishnan]
…………………….…….....…….J.
[Dipak Misra]
New Delhi;
April 11, 2014.
-----------------------
[1] (1968) 2 SCR 455
[2] (1979) 2 SCC 648
[3] 1980 Supp SCC 215
[4] (2008) 16 SCC 657
[5] AIR 1971 SC 1857
[6] (2010) 7 SCC 477
[7] (1969) 2 SCC 207
[8] (1971) 3 SCC 449
High Court has partly allowed the appeal of Raju @
Rajkumar by converting his conviction under Section 302 IPC to one
under Section 304 Part I of IPC and further confirming his conviction
under Sections 25 and 27 of the Arms Act and sentencing him to suffer
rigorous imprisonment for ten years and to pay a fine of Rs.500/-, in
default of payment of fine, to suffer further six months rigorous
imprisonment. Hemant Kumar, a co-accused along with Raju and Manoj
Kumar, who had preferred an independent appeal, has been acquitted of
all charges.=
In Joginder Ahir and others v. The State of Bihar[8],
the Court
referred to the decision in Nathu Pandey and others (supra) and
dealing with the applicability of Section 34 IPC, taking into
consideration almost similar findings, opined that there was no common
intention on the part of all the accused persons to commit the crime.
In the said case, the High Court had convicted the accused-appellants
therein under Section 304 Part II in aid of Section 34 IPC.
Dealing
with the same it has been held as follows: -
“We are unable to concur with the view of the High Court that
any such common intention could be attributed to the appellants
on the facts and in the circumstances of the case. They
certainly had the common intention of defending the invasion of
the right to property. While doing so if one or two out of them
took it into his or their heads to inflict more bodily harm than
was necessary, the others could not be attributed the common
intention of inflicting the injuries which resulted in the death
of the deceased. Section 34 can only be applied when a criminal
act is done by several persons in furtherance of the common
intention of all. No overt-act had been proved or established
on the part of the appellants which showed that they shared the
intention of the person or persons who inflicted the injury or
injuries on the head of the deceased which led to his death.
They cannot, therefore, possibly be held guilty of an offence
under Section 304, Part II, read with Section 34 of the Indian
Penal Code.”
17. The facts in the present case, as we understand, are similar to the
factual score in the aforesaid case because the right of private
defence had only been exceeded by Rajkumar.
In such a case, the guilt
of each of the accused, who had exceeded the right of private defence,
has to be dealt with separately.
The matter would have been totally
different, had the right of private defence did not exist at all or
the accused persons had done any overt act.
Thus, in our considered
opinion, the constructive liability, as envisaged under Section 34
IPC, is not attracted.
18. In view of our aforesaid analysis, we do not perceive any merit in
these appeals and, accordingly, they are dismissed.
K.S. RADHAKRISHNAN, DIPAK MISRA
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 885 OF 2007
State of Rajasthan ...Appellant
Versus
Manoj Kumar ...Respondent
With
CRIMINAL APPEAL NO. 1073 of 2007
State of Rajasthan ...Appellant
Versus
Raju @ Raj Kumar & Anr. ...Respondents
J U D G M E N T
Dipak Misra, J.
The present appeals, by special leave, have been preferred
against the common judgment and order dated 14.2.2006 passed by the
High Court of Judicature for Rajasthan, Jaipur Bench at Jaipur in D.B.
Criminal Appeal No. 396 of 2000 and D.B. Criminal Appeal No. 1011 of
2003, wherein the High Court has partly allowed the appeal of Raju @
Rajkumar by converting his conviction under Section 302 IPC to one
under Section 304 Part I of IPC and further confirming his conviction
under Sections 25 and 27 of the Arms Act and sentencing him to suffer
rigorous imprisonment for ten years and to pay a fine of Rs.500/-, in
default of payment of fine, to suffer further six months rigorous
imprisonment. Hemant Kumar, a co-accused along with Raju and Manoj
Kumar, who had preferred an independent appeal, has been acquitted of
all charges.
2. At the very outset we may state that Raju @ Rajkumar has expired on
8.3.2012 and in proof thereof a death certificate has been brought on
record. In view of the same, the Criminal Appeal No. 1073 of 2007
would stand abated as far as Raju @ Rajkumar is concerned and would
only survive against the accused Hemant Kumar.
3. The prosecution case, in brief, is that the police recorded the
statement of deceased Anirudh Mishra at Sri Kalyan Hospital Sikar on
May 26, 1998 who had stated that around 8:30 p.m. on that day he along
with his brother Basant Mishra, PW 4, and Mahesh Kumar Saini, PW 3,
had gone to the vacant plot belonging to him and his brother situated
at Lisadia ka Bas being apprehensive that that sons of Ram Niwas and
Shanti Prasad would take possession of the plot. At that point of time
sons of Ram Niwas and Shanti Prasad were present at the house of
Phoolji Lisadiya situate adjacent to the plot. As per his version,
they first abused him and thereafter opened fire as a result of which
he had sustained a gun shot injury on the right side of his chest and
his brother Ramesh @ Umesh, PW 5, had brought him to the hospital. On
the basis of his statement the concerned police officer registered FIR
No. 243 of 1998 for the offences punishable under sections 307 and 149
of IPC. However, after the death of Anirudh, the offence was converted
to one under section 302 IPC and investigation commenced. During the
course of investigation, Raju and Hemant were arrested and Manoj was
declared as an absconder. A charge sheet was filed against Raju and
Hemant for the offences under sections 302, 302/34 IPC and for
offences under Section 3/25, 3/27 and 3/33 of the Arms Act and it
became the subject matter of S.C. No. 34 of 1998. After Manoj was
arrested, a charge sheet was submitted against him for the offence
under Section 302/34 of IPC and he faced a separate trial in S.C. No.
8 of 2002.
4. The accused persons abjured their guilt and pleaded false implication
because of property dispute and animosity. In order to prove its
case the prosecution in the first trial examined as many as sixteen
witnesses and got marked thirty-seven documents and also brought eight
articles on record. In the second trial, the prosecution examined as
many as twelve witnesses and similar numbers of documents were
exhibited. In the second trial the defence produced one witness and
tendered four documents in support of its plea.
5. The witnesses in both the trials are common and the prime witnesses,
as mentioned in first trial are, Anjani Kumar, PW 1, brother of the
deceased, Mahesh Kumar Saini, PW 2 an eye witness, Basant Kumar, PW-4,
brother of the deceased, PW 5, Ramesh @ Umesh, another brother of the
deceased, Dr. V.K. Soni, PW 6, who had examined the deceased and
prepared the x-ray report, Dr. G.R. Tanwar, PW 10, who had conducted
the post-mortem and Bhagwan Singh, PW 12, the Investigating Officer.
After examining the oral and documentary evidence the learned trial
Judge convicted Raj Kumar under section 302 read with Section 34 IPC
and also under Sections 25/27 of the Arms Act, and Hemant for the
offences under Section 302/34 IPC. In the second trial, accused Manoj
was convicted under Section 302/34, IPC.
6. The accused persons preferred two separate appeals and the High Court
in its common judgment and order accepted the stand of all the accused
persons relating to right of private defence. However, as the accused
Raju has exceeded the right of private defence, the High Court
converted his conviction to one under Section 304 Part-I IPC and
sentenced him as stated hereinbefore. As far as accused Hemant and
Manoj are concerned, it opined that their conviction could not be
sustained in aid of Section 34, IPC, for in the obtaining facts and
circumstances Section 34 was not applicable.
7. We have heard Mr. Milind Kumar, learned counsel appearing for the
State and Mr. Sushil Kumar Jain, learned counsel appearing for the
respondent.
8. Two questions that emerge for consideration in these appeals, are (i)
whether the High Court was justified in accepting the contention of
right of private defence; and (ii) whether the conclusion of the High
Court that Section 34 IPC could not be attracted regard being had to
the factual score, is correct.
9. On a perusal of the judgment of the learned trial Judge, it is
demonstrable that he has set out in detail that a dispute existed
between the parties over the possession of land in question. He has
arrived at the conclusion that as per the evidence brought on record,
both ocular and documentary, Parasram Lisadiya had sold the plot to
Ramesh Kumar, the elder brother of the deceased, Anirudh Mishra, vide
Registered Sale-deed, Ex.P-9. It has been brought on record that a
dispute in regard to the plot was in existence between Parasram
Lisadiya and Phool Chand Lisadiya and it has led Parasram to file the
civil suit No. 131 of 1986 for permanent injunction wherein it was
alleged that on 11.7.1986 Phool Chand had obstructed Parasram from
commencing the construction on the plot. On 17.9.1997 the suit for
permanent injunction was decreed ex-parte against Phool Chand
restraining him from interfering with the possession of Parasram over
the land in question. It is also reflectible from Ex.P-9 that by the
time the suit was decided in favour of the plaintiff, Parasram had
already sold the plot vide Registered Sale-deed, Ex.P-9, to Ramesh
Mishra, who had obtained sanction for construction vide Ex.P-12 and
the site plan vide Ex.P-14. The events happened in quick succession
and Ramesh, after obtaining necessary sanction, had started collecting
material for construction. It has come in the evidence of Ramesh, PW-
5, that the dispute existed between Parasram and Phool Chand over the
possession even after the sale-deed was executed. It has also come on
record that sanction for construction was obtained only four days
prior to the incident; and that a cavil existed in regard to the plot
between the informant and the accused persons as the original owner,
Phool Chand had mortgaged the said plot to Shanti Prasad, father of
the accused and they were in possession. As we notice from the
evidence on record, there can be no iota of doubt that Rajkumar has
fired the gunshot as a consequence of which Anirudh breathed his last.
It is also clear that there was a dispute over the land and the
possession still remained with the accused persons. It is also borne
out from the evidence that the accused persons were not parties to the
suit. In such a situation, Ramesh was trying to raise construction by
collecting material at the site and, in fact, to take over possession,
had sent his brother Anirudh and other brothers. After the deceased
and the others came at the site the accused persons, getting the
information, had reached to the house of Risadiya and initially a
verbal altercation took place and, eventually, a gunshot was fired.
10. The High Court has taken into consideration various aspects, namely,
there was dispute with regard to the ownership and possession over the
plot in dispute; that the informant and others had gathered the
materials for construction of the plinth few days before the incident;
that the municipal council has granted sanction only four days prior
to the incident; that Ramesh, PW-5, and others were apprehensive that
they would lose possession; that an affirmative plea relating to
possession by the accused persons had been taken; and that the accused
Rajkumar with the intention to defend the possession of the property
and to drive away the deceased and others had opened the fire, but,
unfortunately, it hit the deceased. On the aforesaid analysis of the
evidence, the High Court was persuaded to hold that the accused
Rajkumar had exceeded his right of private defence.
11. Mr. Milind Kumar, learned counsel for the State, has submitted that
the accused persons had not taken the plea of right of private defence
in their statement under Section 313 of the Code of Criminal Procedure
and hence, the High Court could not have adverted to the same. It is
further put forth that even assuming the stand can be considered, in
the case at hand the accused persons have miserably failed to
discharge the burden in establishing their right of private defence.
In this context, we may refer with profit to the pronouncement in
Munshi Ram and others v. Delhi Administration[1] wherein it has been
laid that even if an accused does not take the plea of private
defence, it is open to the court to consider such a plea if the same
arises from the material on record and burden to establish such a plea
is on the accused and that burden can be discharged by showing
preponderance of probabilities in favour of that plea on the basis of
material on record. In Salim Zia v. State of Uttar Pradesh[2] the
observation made by this Court to the effect that 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 prosecution
witnesses or by adducing defence evidence. Similarly, in Mohd.
Ramzani v. State of Delhi[3], it has been held that it is trite that
the onus which rests on an accused person under Section 105, Evidence
Act, to establish his plea of private defence is not as onerous as the
unshifting burden which lies on the prosecution to establish every
ingredient of the offence with which the accused is charged, beyond
reasonable doubt.
12. In the case at hand, the plea of right of private defence arises on
the base of materials on record. As far as onus is concerned, we find
that there is ocular and documentary evidence to sustain the concept
of preponderance of probability. It can not be said that there is no
material on record or scanty material to discard the plea. Thus, the
aforesaid submission being unacceptable, are hereby repelled.
13. Learned counsel for the State next contended that when the accused
persons had exceeded their right of private defence and caused the
death of the deceased, all of them should have been convicted under
Section 302/34 IPC. In this regard, we may refer with profit to
certain authorities before we advert to the facts unfurled in the case
at hand. In Munshi Ram (supra), while dealing with right to private
defence, this Court has observed that law does not require a person
whose property is forcibly tried to be occupied by trespassers to run
away and seek the protection of the authorities, for the right of
private defence serves a social purpose and that right should be
liberally construed. The Court further stated that such a right not
only will be a restraining influence on bad characters but it will
encourage the right spirit in a free citizen, because there is nothing
more degrading to the human spirit than to run away in the face of
peril. In Mohd. Ramzani (supra) the Court has observed that it is
further well-established that a person faced with imminent peril of
life and limb of himself or another, is not expected to weigh in
“golden scales” the precise force needed to repel the danger. Even if
he in the heat of the moment carries his defence a little further than
what would be necessary when calculated with precision and exactitude
by a calm and unruffled mind, the law makes due allowance for it. In
Bhanwar Singh and others v. State of Madhya Pradesh[4] it has been
ruled to the effect that for a plea of right of private defence to
succeed in totality, it must be proved that there existed a right to
private defence in favour of the accused, and that this right extended
to causing death and if the court were to reject the said plea, there
are two possible ways in which this may be done, i.e., on one hand, it
may be held that there existed a right to private defence of the body,
however, more harm than necessary was caused or, alternatively, this
right did not extend to causing death and in such a situation it would
result in the application of Section 300 Exception 2.
14. On the touchstone of the aforesaid principles, the evidence brought on
record and the conclusion arrived at by the High Court have to be
tested. There is material on record that there were altercations
between the accused and the deceased on the one hand and the others
and there was threat that the informant and others would take over
possession. The High Court has found that there was a threat to the
property of Raj Kumar and he had made an effort to drive away the
informant and others. Though the prosecution has come out with the
version that the accused persons were trying to take over possession,
yet on a scrutiny of the evidence it becomes quite vivid that they
were in a hurry to raise construction at the site and, accordingly,
were taking steps. In this context, the act of the accused is to be
adjudged. It has to be appreciated regard being had to the
surrounding circumstances and not by way of microscopic pedantic
scrutiny, as has been held in Vidya Singh v. The State of Madhya
Pradesh[5] and Sikandar Singh and others v. State of Bihar[6]. True
it is, he had fired a gunshot but it was really not with the intention
to cause the death of the deceased. The prosecution has not brought
any material on record that the said accused was vindictive, or he had
any malicious intention to cause the death of the deceased. Had that
been there, then it would have been totally contrary to the concept of
right of private defence. That being the position, the High Court has
rightly accepted the submission that Raj Kumar had exceeded the right
of private defence and has correctly found him guilty under Section
304 Part I IPC.
15. Presently, we shall advert to the facet of justifiability of the
acquittal of the accused persons who had accompanied the accused who
had fired the gunshot. Learned counsel for the State would urge that
as they had come to the spot with the accused Raj Kumar and they had
the common intention. Even if there was no prior intention, submits
Mr. Milind Kumar, learned counsel for the State, it developed on the
spot. On a perusal of the evidence, we find that accused Manoj Kumar
and Hemant Kumar had accompanied accused Rajkumar to defend the right
of possession. It is a case where accused Rajkumar exceeded the right
of private defence. A three-Judge Bench in State of Bihar v. Nathu
Pandey and others[7], while accepting the reasoning of the High Court
that some of the accused persons had exceeded the right of private
defence, opined that when it is not possible to say that all the
accused persons have the common object to commit murder and only
those, who exceeded the right of private defence, would be held
responsible for their murders.
16. In Joginder Ahir and others v. The State of Bihar[8], the Court
referred to the decision in Nathu Pandey and others (supra) and
dealing with the applicability of Section 34 IPC, taking into
consideration almost similar findings, opined that there was no common
intention on the part of all the accused persons to commit the crime.
In the said case, the High Court had convicted the accused-appellants
therein under Section 304 Part II in aid of Section 34 IPC. Dealing
with the same it has been held as follows: -
“We are unable to concur with the view of the High Court that
any such common intention could be attributed to the appellants
on the facts and in the circumstances of the case. They
certainly had the common intention of defending the invasion of
the right to property. While doing so if one or two out of them
took it into his or their heads to inflict more bodily harm than
was necessary, the others could not be attributed the common
intention of inflicting the injuries which resulted in the death
of the deceased. Section 34 can only be applied when a criminal
act is done by several persons in furtherance of the common
intention of all. No overt-act had been proved or established
on the part of the appellants which showed that they shared the
intention of the person or persons who inflicted the injury or
injuries on the head of the deceased which led to his death.
They cannot, therefore, possibly be held guilty of an offence
under Section 304, Part II, read with Section 34 of the Indian
Penal Code.”
17. The facts in the present case, as we understand, are similar to the
factual score in the aforesaid case because the right of private
defence had only been exceeded by Rajkumar. In such a case, the guilt
of each of the accused, who had exceeded the right of private defence,
has to be dealt with separately. The matter would have been totally
different, had the right of private defence did not exist at all or
the accused persons had done any overt act. Thus, in our considered
opinion, the constructive liability, as envisaged under Section 34
IPC, is not attracted.
18. In view of our aforesaid analysis, we do not perceive any merit in
these appeals and, accordingly, they are dismissed.
………………………….....…….J.
[K. S. Radhakrishnan]
…………………….…….....…….J.
[Dipak Misra]
New Delhi;
April 11, 2014.
-----------------------
[1] (1968) 2 SCR 455
[2] (1979) 2 SCC 648
[3] 1980 Supp SCC 215
[4] (2008) 16 SCC 657
[5] AIR 1971 SC 1857
[6] (2010) 7 SCC 477
[7] (1969) 2 SCC 207
[8] (1971) 3 SCC 449
