REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 356 OF 2007
Arjun … Appellant (s)
versus
State of Maharashtra … Respondent(s)
J U D G M E N T
K.S. Radhakrishnan, J.
1. The appellant, herein, was convicted by the 2nd Ad-hoc Additional
Sessions Judge for the offence punishable under Section 302 of Indian Penal
Code (for short ‘IPC’) for murder of one Jagannath Rambhau Shirsath and for
the offence punishable under Section 326 IPC for causing grievous hurt to
Muktabai, wife of deceased – Jagannath.
2. Aggrieved by the order of conviction and sentence, the appellant
preferred Criminal Appeal No. 646/2004 and the State preferred Criminal
Appeal No.828/2004 against acquittal of accused No.8 – Babasaheb Maruti
Shirsath before the High Court of Bombay Bench at Aurangabad. The High
Court vide its judgment dated 24.11.2006 dismissed Criminal Appeal No.
646/2004 and confirmed the conviction and sentence passed by the trial
court against the appellant. Criminal Appeal No. 828/2004 preferred by the
State against acquittal of accused No.8 was also dismissed by the High
Court vide judgment dated 24.11.2006. Aggrieved by the judgment in
Criminal Appeal No. 646/2004, this appeal has been preferred by the first
accused, Arjun.
3. The prosecution story, in a nutshell, is as follows:
The deceased Jagannath and Muktabai (PW 8) parents of Rangnath (PW 1), his
brothers Ashok Gahininath and Rajendra –were all living together at
Taklimanur, Taluka Pathardi, District Ahmednagar. There were some property
disputes between the first accused (appellant) and the deceased - Jagannath
for which the appellant had filed Civil Suit being RCS No. 291/2001 before
Taluka Court for an order of injunction and possession and the court had
ordered status quo. The appellant was in the army service and after
retirement, about 5 to 6 years prior to the incident on 30.07.2002, he
started a stationery shop at Taklimanur situated adjacent to the subject
matter of the suit.
4. In the village Taklimanur, there was an annual fair on 30.07.2002.
At about 4 PM, on that date when the deceased came in front of the
appellant’s shop, the appellant abused the deceased. Later, when the
deceased, his wife – Muktabai and son Rangnath were going to Ambikanagar
for worship of the Goddess, the appellant, his brothers Babasaheb (accused
No.8), Buvasaheb (accused No.2), Suresh - son of Buvasaheb (accused No.7),
Dnyandeo (accused No.4), Bhimrao (accused No.5), Patilba (accued No.3),
Ramnath (accused No.6) attacked the deceased on the road near Tamarind
tree. The appellant was armed with a large knife, accused No.3 was armed
with an axe and others were carrying sticks. The appellant inflicted three
blows on the head of the deceased with a large knife (Sura – Article
No.13)and deceased fell down. When PW 8 Muktabai intervened to rescue her
husband, the appellant inflicted blows on her head, back and shoulder.
Again, when PW 10 Karbhari (brother-in-law of PW 8) and his son Ambadas (PW
11) came to their rescue; the appellant assaulted both of them. Due to the
injuries, the deceased died on the spot. Police arrived at the scene of
occurrence; the victims were taken to the nearby hospital.
5. PW 1, son of the deceased, lodged a report of the incident with
Pathardi Police Station at about 8.30PM on the date of the incident. Based
on that report, Crime No. 127/2002 was registered under Sections 147, 148,
302, 326, 324 r/w Section 149 IPC and investigation was entrusted to P.I.
Randive (PW 14). Later, all the accused were arrested by 04.08.2002. The
appellant made a confessional statement and produced a large knife (sura –
article no.13) concealed in a pit on the bund of the field of Ramkisan
Shinde, which is near the scene of occurrence.
6. The appellant had also lodged an FIR on 30.07.2002 at 8.50 P.M.
against the complainant Rangnath, Karbhari (PW 10), Ambadas (PW 11) and
other persons. The Sessions Court tried the case registered against some
of the prosecution witnesses and they were convicted for offences
punishable under Section 307 r/w Section 149, Section 324 r/w Section 149,
Section 147, Section 148, and Section 149 IPC for five years with fine.
7. The appellant herein took up the defence that the parties were on
inimical terms since he had filed Civil Suit No. 291/2001 before the Civil
Judge, Junior Division, Pathardi. He also stated that pressure was also
exerted on him to withdraw the civil suit. Further, it was stated that on
30.07.2002, when he was opening the shop, the deceased, PW 10 and PW 11
came in front of the shop and asked him to come out. Sensing some trouble,
he accosted accused No.8, who was at the market. PW 1, by that time, also
joined his father. They were armed with weapons. Hence, he had to flee
but they chased him. PW 1 inflicted a blow with Gupti on the stomach of
accused No.8 near a Pipal tree and the other accused continued to assault
him. Fearing that he would be killed, he snatched iron rod from the hands
of Gahininath and waived iron rod in the air. PW 1 had also inflicted
injury on the stomach of accused No.2 with a Gupti. In that melee, the
appellant and accused no. 8 were also injured and they were taken to the
nearby hospital. The appellant had sustained CLW on occipital region 2X1X1
cms and an abrasion on forearm 3X1/4 cm. Accused No.8 had sustained
incised wound on the abdomen from which the intestines were protruding with
omentum.
8. Learned counsel appearing for the appellant Mr. Sudhanshu S.
Chaudhari submitted that the incident had occurred in front of the shop of
the accused and there was previous rivalry between the parties due to the
fact that he had filed civil case against the deceased and others. Learned
counsel further submitted that the fact that the appellant as well as
accused No.8 had also sustained injuries, would indicate that the appellant
and others were also attacked by the deceased and others. Learned counsel,
therefore, pointed out the fact that the appellant as well as accused No.8
had sustained injuries during the course of incident was a relevant factor
which should have been taken into consideration by the courts below.
Learned counsel pointed out that the above facts would also indicate that
there was a fight between both the parties and the prosecution had
miserably failed to explain the injuries sustained by the appellant and
accused No. 8. The non-explanation on the injuries is a relevant factor
which should have been taken note of for evaluating the prosecution
evidence. In support of his contention, reliance was placed on judgment of
this Court in Lakshmi Singh and Ors. v. State of Bihar; 1976 (4) SCC 394
and Dashrath Singh v. State of U.P.; 2004 (7) SCC 408. Learned counsel
also pointed out that injuries sustained by the appellant as well as
accused No.8 would positively show that the appellant was not the aggressor
and, consequently, the fatal injuries sustained by the deceased was due to
a sudden fight between the parties and the accused had to ward off the
attack in his self defence. Learned counsel further pointed out that the
findings rendered by the courts below that it was the appellant who was the
aggressor and hence the plea of private defence was not available, was not
correct. Further, it was pointed out that the injuries sustained by the
appellant and accused No. 8 would clearly indicate that the appellant is
entitled to raise the plea of private defence.
9. Learned counsel, Ms. Asha G. Nair, appearing for the State supported
the conviction of the appellant by the trial judge as well as the High
Court. Learned counsel took us elaborately to the prosecution evidence.
Learned counsel pointed out that the facts narrated by PW 1 – complainant
would clearly indicate that the deceased died due to the blows inflicted on
his head by the accused. The other witnesses had corroborated the same and
stated that it was the accused – appellant, who had opened the attack by
inflicting blows on the head of the deceased by a large knife (sura).
Reference was also made to the evidence of PW 12 – Dr. Kulkarni, the
autopsy surgeon, who had stated that injury Nos. 1, 2 and 5 were caused by
hard and sharp weapon such as Sura - article no. 13, injury no. 3 was
caused by hard and blunt weapon and injury Nos. 7, 8 and 9 were caused by
hard and rough surface. In his opinion, the death was caused on account of
shock due to the injuries on the head and on the brain of the deceased.
The plea of private defence, as stated by the learned counsel, is not
available to the appellant. PW 1 and PW 8 had clearly stated that it was
the appellant who had first inflicted three blows on the head of the
deceased by a knife which was the cause of death of Jaganath.
10. Learned counsel for the State took us to the evidence of PWs 1, 8, 10
and 11 which according to the counsel, would establish beyond doubt that it
was the appellant who was the aggressor and had inflicted fatal injuries on
the head of the deceased. Further, it was pointed out that the fact that
all the accused persons including the appellant were armed with lethal
weapons would clearly indicate that it was pre-planned and deliberate. The
plea of private defence, it was submitted was rightly negatived by the
trial court as well as the High Court.
11. We have heard the learned counsel on either side at length and
critically examined the oral evidence adduced in the case. The evidence of
PWs 1, 8, 10 and 11 with regard to the assault, of the appellant on the
deceased, has been fully corroborated by the medical evidence as well as
evidence of independent witnesses. PW 9 has proved the recovery of the
weapon of offence. PW 8 – wife of the deceased had also sustained injuries
due to the attack of the appellant, when she intervened to protect her
husband. The facts would clearly indicate that the appellant harboured
grudge against the victims in view of the property dispute. The evidence
of PW 12 indicates that the deceased had sustained serious injuries on the
brain. The facts would indicate that PW 1 and others had, in fact,
obstructed the appellant but he was having a knife with which could inflict
three fatal injuries on the head of the deceased. The mere fact that the
other seven accused were acquitted or that some of the prosecution
witnesses were also convicted would not be sufficient to hold that the
appellant was not the aggressor. True, there were some minor injuries on
the accused and some serious injuries on PW 8 as well. Evidence of PWs 1,
8, 10 and 11 would clearly indicate that the appellant was armed with a
knife and it was with that knife he had inflicted serious injuries on the
head of the deceased and which was the cause of death of Jagannath.
Further, there is also sufficient evidence to show that the appellant had
inflicted injuries on the wife of the deceased as well when she tried to
save her husband. The deceased was unarmed so also his wife and the son.
At the same time, the accused was armed with a knife. No explanation is
forthcoming either in his statement u/s 313 Cr.P.C. or otherwise as to why
he was having a knife (sura) in his hand at the time of the incident.
There is no evidence to show that the deceased, his wife (PW 8) or his son
(PW 1) had ever attacked the accused.
12. Law clearly spells out that the right of private defence is available
only when there is a reasonable apprehension of receiving injury. Section
99 IPC explains that the injury which is inflicted by a person exercising
the right should commensurate with the injury with which he is threatened.
True, that the accused need not prove the existence of the right of
private defence beyond reasonable doubt and it is enough for him to show as
in a civil case that preponderance of probabilities is in favour of his
plea. Right of private defence cannot be used to do away with a wrong
doer unless the person concerned has a reasonable cause to fear that
otherwise death or grievous hurt might ensue in which case that person
would have full measure of right to private defence.
13. It is for the accused claiming the right of private defence to place
necessary material on record either by himself adducing positive evidence
or by eliciting necessary facts from the witnesses examined for the
prosecution, if a plea of private defence is raised. (Munshi Ram and
Others V. Delhi Administration, AIR (1968) SC 702; State of Gujarat v. Bai
Fatima, AIR (1975) SC 1478; State of U.P. v. Mohd. Musheer Khan, AIR (1977)
SC 2226 and Mohinder Pal Jolly v. State of Punjab, AIR (1979) SC 577 and
Salim Zia v. State of U.P., AIR (1979) SC 391.
14. A plea of right of private defence cannot be based on surmises and
speculation. While considering whether the right of private defence is
available to an accused, it is not relevant whether he may have a chance to
inflict severe and mortal injury on the aggressor. In order to find
whether the right of private defence is available to an accused, the entire
incident must be examined with care and viewed in its proper setting.
15. Section 97 deals with the subject matter of right of private defence.
The plea of right comprises the body or property of the person exercising
the right or of any other person, and the right may be exercised in the
case of any offence against the body, and in the case of offences of theft,
robbery, mischief or criminal trespass, and attempts at such offences in
relation to the property. Section 99 lays down the limits of the right of
private defence. Sections 96 and 98 give a right of private defence
against certain offences and acts. The right given under Sections 96 to 98
and 100 to 106 is controlled by Section 99. To plea a right of private
defence extending to voluntary causing of death, the accused must show that
there were circumstances giving rise to reasonable grounds for apprehending
that either death or grievous hurt would be caused to him.
16. We are of the view that in the instant case, as rightly held by the
High Court and Trial Court, there is nothing to show that the deceased, his
wife (PW 8), his son (PW 1) or others had attacked the appellant, nor the
surrounding circumstances would indicate that there was a reasonable
apprehension that the death or grievous hurt was likely to be caused to the
appellant by them or others. The plea of private defence is, therefore,
has no basis and the same is rejected.
17. Considering the background facts as well as the fact that there was
no premeditation and the act was committed in a heat of passion and that
the appellant had not taken any undue advantage or acted in a cruel manner
and that there was a fight between the parties, we are of the view that
this case falls under the fourth exception to Section 300 IPC and hence it
is just and proper to alter the conviction from Section 302 IPC to Section
304 Part 1 IPC and we do so.
18. We are informed that the appellant is in custody since 30.07.2003.
In our view, custodial sentence of 10 years to the accused-appellant would
meet the ends of justice and it is ordered accordingly. The appeal is
accordingly disposed of, altering the sentence awarded.
……………………………...J.
(K.S. Radhakrishnan)
..………..………………………J
(Dipak Misra)
New Delhi,
May 3, 2012.
