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Saturday, April 12, 2014

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.= State of Rajasthan ...Appellant Versus Manoj Kumar ...Respondent= 2014 judis.nic.in/supremecourt/filename=41407

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


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