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Friday, January 23, 2015

No doubt normally the right of private defence is not available to either of the parties in incidents of group fighting, but that is not a rule without exception. In the case at hand, we have a special circumstance where the injured person (appellant no. 1) who was given 2cm x 2cm x 1.5cm deep knife blow on his back (scapular region) has retorted by using licensed firearm, and killed one of his rivals in the same incident. Accused/appellant Pathubha Govindji has taken plea of private defence right from beginning of the trial. From the judgment of the trial court also, it is clear that the plea of private defence was taken by the appellant no.1. Considering the facts and circumstances of the present case and evidence on record, it is evident that accused/appellant no.1 Pathubha Govindji Rathod who suffered knife injury in the incident has caused death of one of the deceased by firing several shots thereby exceeding right of private defence. Injuries suffered by both the sides are on record. In the above circumstances, from the evidence, as discussed above, we are inclined to accept the argument that it is a case of culpable homicide not amounting to murder covered under Exception 2 of Section 300 of IPC.-CRIMINAL APPEAL NO. 2282 OF 2014 Pathubha Govindji Rathod & Anr ... Appellants Versus State of Gujarat ... Respondent

                        IN THE SUPREME COURT OF INDIA

                      CRIMINAL  APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 2282  OF 2014


Pathubha Govindji Rathod & Anr                ... Appellants

                                   Versus

State of Gujarat                            ... Respondent






                               J U D G M E N T


PRAFULLA C.  PANT, J.

      This appeal is directed against judgment  and  order  dated  30.6.2014
passed by High Court of Gujarat whereby the said Court  has  partly  allowed
the criminal appeals arisen out of Sessions Case No.  85  of  2003  and  the
cross Sessions Case No. 53 of 2004,  which  were  decided  by  two  separate
orders of the same date, i.e., 5.10.2007 by Additional  Sessions  Judge/Fast
Track Court, Junagarh.
We have heard learned counsel for the parties and perused the record.

Prosecution story, in brief, is that complainant Satish Jotva  (PW-42)  used
to live with his family in Village Arena.  On 2.9.2003 his  uncle  Bhurabhai
Jivabhai (PW-46) was going to his field on a bicycle. At about  10.30  a.m.,
he was intercepted by Pathubha Govindji Rathod (appellant no.  1)  near  bus
stand.  Accused/appellant no.1 picked up a quarrel  with  Bhurabha  Jivabhai
as to why he  supported  Natha  Nagabhai  (one  of  the  deceased)  in  Gram
Panchayat Election with whom  the  accused/appellant  no.1  was  not  having
cordial relations. Meanwhile Natha Nagabhai came there and joined  Bhurabhai
Jivabhai in the quarrel.  This led heated exchange  of  words  between  both
the sides, and crowd gathered there.  Accused/Appellant no.1 was  joined  by
his other supporters (co-accused), who were armed with deadly  weapons  like
swords, knives and sticks.  Out of the  accused  persons,  accused  Pathubha
Govindji was armed with revolver, and accused  Bhavubhai  Gagubhai,  Bhuraji
Gaguji, Kirit Jesing and Punjaji Muluji were  armed  with  swords.   Accused
Mala Gaguji was armed  with  knife.   Rest  of  the  accused  Gaguji  Manji,
Gomubha Halarwadi,  Navalsinh  Motisinh,  Kanubha  Jesangji,  Dhiru  Jesing,
Kiritsinh Punjajai, Veraji Punjaji, Jayubha, Samatsinh, Sidharajsinh  Manji,
Bharat Manji,  Kanu  Bhai  Devu  bhai  and  accused/appellant  no.2  Hemubha
Govindji were armed with sticks.  On hearing the noise,  complainant  Satish
Jiva Jotva (PW-42) and his another uncle Bhimshi  Jiva  (PW-47),  father  of
the complainant Hamir Nagabhai (another deceased), Malde  Nagabhai  (PW-43),
Bhurabhai Jivabhai (PW-46), Punjabhai Bhimshibhai (PW-44),  Jagmal  Jivabhai
(PW-45) and some other villagers also  gathered  there.   When  the  quarrel
further aggravated between the two sides,  accused/appellant  no.1  Pathubha
Govindji exhorted his supporters to kill Natha Nagabhai and teach lesson  to
other supporters.   Thereafter,  accused/appellant  no.1  Pathubha  Govindji
himself took out revolver from his pocket and fired at him.  Natha  Nagabhai
suffered bullet injuries on the stomach and fell  down.   In  the  incident,
Bhimshibhai who was  attacked  with  sword  suffered  injury  on  his  head.
Bhavubhai Gagubhai assaulted Punja Bhimshi with sword in his  hand,  and  he
also suffered injury on his head. Punjaji gave blow to Bharat  Jiva  on  his
head,  Gomubha  Halarwala  gave  blow  on   the   head   of   Jagmal   Jiva.
Accused/appellant no.2 Hemubha Govindji inflicted injury with sword  on  the
head of Hamir Nagabhai.  Accused Malde Nagabhai Jotva assaulted  with  stick
to some other persons.  Several persons suffered injuries  in  the  incident
on both sides.  According to prosecution,  after  the  incident  complainant
took his uncle Natha Nagabhai on  his  motor  cycle  to  Mangrol  Government
Hospital, and other injured persons were also  taken  on  rickshaw  to  said
Hospital for medical treatment.  Out of the injured Natha Nagabhai,  Bhimshi
Jivabhai,  Hamir  Nagabhai,  Bhura  Jivabhai,  Malde   Nagabhai,   Punjabhai
Bhimshibhai, Jagmal Jivabhai were shifted to Junagarh Hospital  for  further
treatment. In the incident Natha Nagabhai and Hamir  Nagabhai  succumbed  to
the injuries and died.

A complaint was given by Satish Jiva Jotva regarding  the  incident  on  the
basis of which ICR No. 70 of 2003 was registered at Mangrol Police  Station.
 A cross version of incident (ICR No. 71 of 2003)  was  also  registered  by
the police.  After investigation, charge sheets were  filed  by  the  police
against both set of accused.  Sessions Trial No. 85 of 2003 relates  to  the
charge sheet filed against accused/appellants Pathubha Govindji  Rathod  and
Hemubha Govindji Rathod and eighteen others.  After hearing the  parties  in
the aforesaid sessions case, a charge was framed by the trial court  against
all the twenty accused in respect  of  offences  punishable  under  Sections
147, 148, 302 r/w 149, 307 r/w 149, 326 r/w 149, 325 r/w 149,  324  r/w  149
and 506 (2) r/w 149 of Indian Penal  Code  and  under  Section  135  of  the
Bombay Police Act. Accused/appellant  no.1  Pathubha  Govindji  was  further
charged in respect of offence punishable under Section 25(1)(a) and  Section
27 of Arms Act.  All the accused  pleaded  not  guilty  and  claimed  to  be
tried.

On this, prosecution got examined PW-1 Dr. M.G. Satrodiya, PW-2  Dr.  Linesh
Makwana, PW-3 Dr. Anil Sakhiyani, PW-4 Naran Punja, PW-5 Desha Devshi,  PW-6
Nasinghbhai  Nensibhai,  PW-7   Parsottambhai   Savjibhai,   PW-8   Ratibhai
Khimjibhai, PW-9 Nagabhai Hirabhai, PW-10 Virambhai Kanabhai,  PW-11  Hardas
Desa, PW-12 Arjan  Govindbhai,  PW-13  Vikram  Arjanbhai,  PW-14  Bhikhabhai
Virabhai,  PW-15  Mansukh  Amarsinh,  PW-16   Lakhabhai   Pethabhai,   PW-17
Laxmanbhai Makwana, PW-18 Rasulkhan Gulamkhan,  PW-19  Razak  Ismail,  PW-20
Hanif Ibrahim, PW-21 Ali Giga, PW-22 Ismail Hussain, PW-23 Gova Parbat,  PW-
24 Kanjibhai Karsanbhai, PW-25 Hasmukh Raja, PW-26 Karmanbhai Jethabhai, PW-
27 Arjan Parbat, PW-28 Musabhai Allarakha, PW-29  Amadbhai  Musabhai,  PW-30
Dhirubhai Naranbhai, PW-31 Mohanlal Khimjibhai, PW-32 Mamadbhai Ismail,  PW-
33 Ibrahim Kasam, PW-34 Atul Prabhudas, PW-35  Dr.  Jigna  Dave,  PW-36  Dr.
Kartik Modha, PW-37 Bhanji Vashram, PW-38  Ranchhodbhai  Rathod,  PW-39  Dr.
Bhalchandra Joshi, PW-40 Dr. Jitendra Gajera, PW-41 Dr. P.B.  Nariyani,  PW-
42 Satishbhai Bhimsinh Jothwa (complainant), PW-43 Malde Naga (injured), PW-
44  Punjabhai  Bjhimsinhbhai  (injured),  PW-45   Jagmal   Jivabhai,   PW-46
Bhurabhai Jivabhai (injured), PW-47 Bhimsinhbhai Jivabhai  (injured),  PW-48
Chandrakant  Natwarlal,  PW-49  Mahipatbhai   Bhikhubha,   PW-50   Ravjibhai
Valjibhai, PW-51 Jayeshbhai  Tapubhai,  PW-52  Karsanbhai  Gangabhai,  PW-53
Subhashbhai Vadhera, PW-54 Hasmukhlal Aahir, PW-55 Arjanbhai Meraman,  PW-56
Harishchandra Trivedi, PW-57 Bharatbhai Mistri, PW-58 Vishnukumar Vyas,  PW-
59 Manharlal Mehta  (Investigating  Officer),  and  PW-60  Kalekhan  Kureshi
(Investigating Officer).

The trial court  put  oral  evidence  of  above  witnesses  and  documentary
evidence including medical reports, inquest reports, post mortem reports  of
Natha Nagabhai and that of Hamirbhai Nagabhai, complaint, serologist  report
and chemical analyst  report to the accused under  Section  313  of  Cr.P.C.
In reply to the prosecution evidence accused stated  that  evidence  adduced
against them is incorrect.  It is also pleaded that  it  were  the  accused,
who were attacked by the complainant and his  supporters.   In  defence,  it
was brought  on  record  that  serious  injury  was  caused  by  Hamir  Naga
(deceased) to accused/appellant no.1 Pathubha Govindji, with  a  knife.   It
is also  brought  on  record  that  from  the  side  of  accused/appellants,
Gumansinh Motibha, Juvan Singh Gogubha, Punjaji Muluji, Navalsinh,  Pathubha
(present appellant no. 1), and Punja Bhimshi suffered injuries.  It is  also
established that in cross  Sessions  Case  No.  53  of  2004,  witnesses  of
present case, namely, Malde Nagabhai Jotva, Bhimshi Jivabhai  Jotva,  Jagmal
Jivabhai Jotva, Bhurabhai Jivabhai Jotva, Punjabhai  Bhimshibhai  Jotva  are
accused, who assaulted the accused of the present case.   Due  to  death  of
Hamir Naga, his name did not figure in charge-sheet as  an  accused  in  the
said sessions case.

After hearing the parties, learned Sessions Judge decided both the  sessions
trials by two separate orders of  the  same  date  and  recorded  conviction
against the accused in both the cross cases.  In Sessions  Case  No.  53  of
2004 the five  accused,  namely,  Malde  Nagabhai  Jotva,  Bhimshi  Jivabhai
Jotva,  Jagmal  Jivabhai  Jotva,   Bhurabhai   Jivabhai   Jotva,   Punjabhai
Bhimshibhai Jotva were convicted by the  trial  court  under  Sections  323,
324, 325, 147,148 all read with Section149 of Indian Penal  Code  and  under
Section 135 of the  Bombay  Police  Act.   Each  one  of   accused  in  said
Sessions Case No. 53 of 2004 was sentenced to  undergo  five  years'  simple
imprisonment and to pay a fine of Rs.2500/- under Section  326  r/w  Section
149 IPC, simple imprisonment for a period of one month and to pay a fine  of
Rs.1000/- under Section 324 r/w Section 149 IPC, simple imprisonment  for  a
period of three months and to pay a fine of Rs.500/- under Section  147  r/w
Section 149 IPC, simple imprisonment for a period of one year and to  pay  a
fine  of  Rs.1000/-  under  Section  325  r/w  Section   149   IPC,   simple
imprisonment for a period of one year and to pay a fine of  Rs.1000/-  under
Section 148  r/w Section 149 IPC.

On the other hand, in Sessions Case No. 85 of  2005  in  which  the  present
appellants were accused, the trial court convicted  and  sentenced  each  of
the twenty accused under Sections 302,  307,  326,  325,  and  324  all  r/w
Section 149 IPC, to undergo imprisonment for life  and  to  pay  a  fine  of
Rs.5000/- under Section 302 r/w Section  149  IPC,  imprisonment  for  seven
years and directed to pay a fine of Rs.2500/- under Section 307 r/w  Section
149 IPC, imprisonment for a period of five years and directed to pay a  fine
of Rs.2500/- under Section 326 r/w Section 149 IPC.   Similar  sentence  was
passed against each of them under section 325 r/w Section 149  IPC.   As  to
the offence under Section 324 r/w Section 149 IPC each one was sentenced  to
imprisonment for  one  year  and  directed  to  pay  a  fine  of  Rs.1000/-.
Similar sentence was passed under Section 147 r/w Section 149 IPC.   On  the
count of charge of offence punishable under Section 148 r/w Section 149  IPC
each one of twenty accused was sentenced to imprisonment  for  a  period  of
one year and directed to pay fine  of  Rs.1000/-.   Under  Section  506  r/w
Section 149 IPC, the trial court sentenced each convict to imprisonment  for
a period of seven years and directed to pay a fine of Rs.1000/-.  The  trial
Court further  convicted  accused/appellant  no.1  Pathubha  Govindji  under
Section 27 of Arms Act, and sentenced him to imprisonment for  a  period  of
three years and directed to pay a fine of Rs.2500/-.

Criminal Appeal No. 1391 of 2007 and Criminal Appeal No.1394  of  2007  were
filed by the convicts of Sessions Case No. 85 of 2003, and  Criminal  Appeal
No. 1244 of 2007 was filed by the convicts of Sessions Case No. 53 of  2004,
before the High Court.  All the three  appeals  were  decided  by  the  High
Court by common judgment challenged  before  us.   The  High  Court  decided
three appeals with following directions:
"26. For the foregoing reasons, the following order is passed;

All the three appeals are partly allowed.

(II)  Insofar as Criminal Appeal No.1391/2007  and1394/2007  are  concerned,
the judgment and order passed by the Court of learned Addl. Sessions  Judge,
Junagadh in Sessions Case No.85/2003 dated 05.10.2007  is  modified  to  the
extent that original accused  no.1Pathubha  is  convicted  for  the  offence
punishable u/s.302 IPC and is sentenced to undergo  imprisonment  for  life.
The order regarding fine and default sentence is not disturbed qua  original
accused no.1. It is also clarified that punishment of imprisonment for  life
imposed upon original accused no.1 shall not  mean  imprisonment  till  last
breath and that the State may grant the accused benefit of remission at  the
appropriate time. His conviction and sentence u/s.27  of  the  Arms  Act  is
also confirmed.

Insofar as original accused no.2 Hemubha is  concerned,  his  conviction  is
altered to one punishable u/s.304 Part1 IPC  instead  of  Section  307  r/w.
Section 149 IPC. For conviction u/s.304 Part1 IPC, original accused no.2  is
sentenced to undergo imprisonment for Ten years. The  order  regarding  fine
and default sentence is not disturbed qua original accused  no.2.  The  jail
report shows that original accused no.2 is on bail.  His  bail  bonds  stand
cancelled and he is ordered to surrender to custody within a period  of  Ten
Weeks from today.

Out of original accused no.3 to 20, original accused no.5, original  accused
no.13 and original accused no.16 have expired. Therefore, the appeals  stand
abated qua the said three accused persons.

Insofar as the  remaining  accused  persons  are  concerned,  viz.  original
accused no.3, 4, 6 to 9, 11 to 12 and 14, 15 and 17 to 20, their  conviction
is altered to one punishable u/s.323 IPC without  the  aid  of  Section  149
IPC. For conviction u/s.323 IPC, the sentence already undergone by  each  of
the accused persons is ordered to be  treated  as  sufficient  sentence  and
each of the accused is ordered to pay fine of Rs.2500/. None of the  accused
person is required to  undergo  any  further  sentence  in  respect  of  the
offence in question. The above accused persons are on bail and hence,  their
bail bonds stand cancelled and surety, if any, stands discharged.

Rest of the impugned judgment and order remains unaltered.

(III)  Insofar as Criminal Appeal No.1244/2007 is  concerned,  the  judgment
and order passed by the Court of  learned  Addl.  Sessions  Judge  and  Fast
Track Court, Junagadh  in  Sessions  Case  No.53/2004  dated  05.10.2007  is
modified whereby, each of the five accused persons,  viz.  original  accused
no.1 to 5, is convicted u/s. 323 IPC without the aid  of  Section  149  IPC.
Their conviction, accordingly, stands  altered  to  one  punishable  u/s.323
IPC. For conviction u/s.323 IPC, the sentence already undergone by  each  of
the five accused persons is ordered to be  treated  as  sufficient  sentence
and each of the accused is ordered to pay fine  of  Rs.2500/.  None  of  the
accused person is required to undergo further sentence  in  respect  of  the
offence in question. The above accused persons are on bail and hence,  their
bail bonds stand cancelled and surety, if any, stands discharged.

Rest of the impugned judgment and order remains unaltered."

The present appeal has  been  filed  before  us  by  way  of  Special  Leave
Petition, by two of the above convicts,  namely,  Pathubha  Govindji  Rathod
and Hemubha Govindji Rathod.

The only point pressed and argued before us  in  this  appeal  is  that  the
courts below have erred in law in not accepting the plea of private  defence
taken by appellant no.1.  It is argued that the accused/appellant  no.1  was
assaulted with a knife and suffered the injury on the vital  part,  as  such
he has a right of private  defence  to  save  his  person.   It  is  further
contended that charge relating to causing death of Natha Bhai  with  a  fire
arm, even if proved, is covered by Exception 2 of Section 300 IPC.

We  have  considered  the  submissions  of  the  learned  counsel  for   the
appellants.  Exception 2 to Section 300 IPC reads as under: -
"Exception 2.-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  intention  of  doing  more  harm  than  is
necessary for the purpose of such defence."

It is not disputed in the present case that there are cross versions of  the
incident, and cross complaints were lodged with the police.  It is also  not
disputed that in both the cases police submitted charge sheets against  both
set of accused.  It is also evident from the record that both Sessions  Case
No 85 of 2003 and Sessions Case No. 53 of 2004  resulted  in  conviction  on
conclusion of trial by Additional  Sessions  Judge,  Junagarh.   Considering
the number of persons involved in the incident it can be  safely  said  that
it is a case of free fight between two groups  of  people.   It  is  settled
principle of law that in  the  cases  of  free  fights  accused  are  to  be
fastened with individual liability taking into  consideration  the  specific
role assigned to each one of them, and normally right of private defence  is
not available in such cases unless circumstances in  a  given  case  warrant
so.

A person faced with injury with a  deadly  weapon  to  his  life  cannot  be
expected to weigh in balance the  precise  force  needed  to  avoid  danger.
Referring to case of Bhanwar Singh v.  State  of  M.P.[1],  this  Court,  in
State of Rajasthan v. Manoj Kumar[2], has observed as under: -
"15.3.      In Bhanwar Singh v. State of M.P., 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 IPC."

In Mohd. Khalil Chisti v. State of Rajasthan[3],  this  court  has  observed
in para 42 as follows: -
"42. The analysis of the materials clearly shows that two  versions  of  the
incident adduced by the prosecution are discrepant with each other. In  such
a situation where the prosecution leads two sets of evidence each one  which
contradicts and strikes at the other and shows  it  to  be  unreliable,  the
result would necessarily be that the court would be left  with  no  reliable
and [pic]trustworthy evidence upon  which  the  conviction  of  the  accused
might be based. Though the accused would have the benefit of such  situation
and the counsel appearing for the appellants prayed  for  acquittal  of  the
appellants of all the charges, in view  of  the  principles  which  we  have
already discussed, we are of the view that  each  accused  can  be  fastened
with individual liability taking into consideration  the  specific  role  or
part attributed to each of the accused. In other words, both  sides  can  be
convicted for their  individual  acts  and  normally  no  right  of  private
defence is available to either party  and  they  will  be  guilty  of  their
respective acts".

No doubt normally the right of private defence is not  available  to  either
of the parties in incidents of group  fighting,  but  that  is  not  a  rule
without exception.  In the case at hand,  we  have  a  special  circumstance
where the injured person (appellant no. 1) who was given 2cm x 2cm  x  1.5cm
deep knife blow  on  his  back  (scapular  region)  has  retorted  by  using
licensed firearm, and killed  one  of  his  rivals  in  the  same  incident.
Accused/appellant Pathubha Govindji has taken plea of private defence  right
from beginning of the trial.  From the judgment of the trial court also,  it
is clear that the plea of private defence was taken by the  appellant  no.1.
Considering the facts and circumstances of the present case and evidence  on
record, it is evident that accused/appellant no.1 Pathubha  Govindji  Rathod
who suffered knife injury in the incident has caused death  of  one  of  the
deceased  by  firing  several  shots  thereby  exceeding  right  of  private
defence.  Injuries suffered by both the sides are on record.
In the above circumstances, from the evidence, as discussed  above,  we  are
inclined to accept the argument that it is a case of culpable  homicide  not
amounting to murder covered  under  Exception  2  of  Section  300  of  IPC.
Therefore, after  weighing  the  submissions  of  learned  counsel  for  the
parties and going through the papers on record, we are of the  opinion  that
appeal of the  accused/appellant  no.  1  deserves  to  be  allowed  partly.
Accordingly, the appeal is partly allowed and the  conviction  and  sentence
recorded against accused/appellant no.1 under  Section  302  IPC  read  with
Section 149 IPC is set aside.  Instead he (accused/appellant  no.1  Pathubha
Govindji Rathod) is convicted under Section 304 Part-I IPC and sentenced  to
imprisonment for a period of ten years and directed to pay fine of Rs.5000/-
, in default of payment of fine he shall undergo simple imprisonment  for  a
further period of six months.  He is reported to have undergone  nine  years
and six months of imprisonment.  He shall serve out       unserved  part  of
the   sentence.    The   conviction   and    sentence    recorded    against
accused/appellant no. 2 Hemubha Govindji Rathod under  Section  304  Part  I
read with Section 149 IPC, does not require any interference.
The appeal stands disposed of.


    ....................................J.
                                                 [Dipak Misra]



                    ....................................J.
                                                      [Prafulla C. Pant]
New Delhi,
January  21 , 2015.
-----------------------
[1]    (2008) 16 SCC 657
[2]    (2014) 5 SCC 744
[3]     (2013) 2 SCC 541

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