Supreme Court of India
NAGJI ODHAVJI KUMBHAR & ANR. versus STATE OF GUJARAT on 23 April 2019
[2019] 6 S.C.R. 249
NAGJI ODHAVJI KUMBHAR & ANR.
v.
STATE OF GUJARAT
(Criminal Appeal No.880 of 2009)
APRIL 23, 2019
[SANJAY KISHAN KAUL AND HEMANT GUPTA, JJ.]
Penal Code, 1860:
ss. 302 and 324 r/w s. 34 – Prosecution under – Death of twopersons and injuries to two – Injuries also received by the accused– Cross-case by the accused – Conviction by courts below – Inappeal, plea taken that the accused acted in private defence and atthe spur of the moment without pre-meditation – Held: There is noevidence that the deceased were armed with any weapon – In viewof the evidence of injured witnesses that the accused were armedwith spears and other weapons and since the deceased were notarmed, right of private defence is not available to the accused –The act of the accused also cannot be said to be at the spur of themoment without pre-meditation – Therefore, they are also not entitledto alternation of conviction from s. 302 to s. 304 – Convictionu/s. 302 upheld.
Dismissing the appeal, the Court
HELD: 1. The prosecution has relied upon the statementof complainant PW-3 as also the statement of PW-4 who areinjured witnesses. PW-2, the doctor has been examined to provethe injuries on prosecution witnesses. It is statement of PW 3which led to lodging of First Information Report that the appellantswho were 7 to 8 in number challenged the witnesses. Theappellants were having spear, accused was having axe and otherswere having sticks. They attacked the deceased and both theinjured witnesses with spears and axe. [Paras 12, 13][254-F-H]
2. The appellants have lodged cross First InformationReport. There is no evidence on the part of the appellants thatthe deceased were armed with any weapon in the first version,when they lodged report. The right of private defence is not
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Aavailable when the alleged assailants are unarmed. The right ofprivate defence is to protect the person and the property. In suchright, the person cannot cause more harm than what is necessaryfor the protection of the person and the property. What harm canbe expected from the hands of the deceased when they were un-armed, whereas from the testimony of PW-3 and PW-4, the injuredBwitnesses, the appellants were armed with spears and otherweapons. The Post-Mortem report corroborates an oraltestimony that both the deceased have received stab wounds.Therefore, the appellants cannot be said to have acted in theright of their private defence. Since the deceased were not armed,Ctherefore, the appellants are not entitled to the right of privatedefence. [Paras 15, 17][255-A-D; 256-A]
Jangir Singh v. State of Punjab 2018 (15) SCALE 88– distinguished.
3. Since there are multiple wounds on the chest of theDdeceased, it cannot be said that the appellants have acted at thespur of the moment without pre-meditation and that the appellantshave not taken any advantage or acted in a cruel or unusualmanner. It is not a case of single injury which one can infer onaccount of sudden fight. Therefore, the appellants are not entitledEto be convicted under Section 304 IPC as they have given multipleinjuries on the vital parts of the deceased. The Trial Court aswell as the High Court was perfectly justified in law in convictingand sentencing the appellants for the offence under Section 302IPC. [Para 18][256-A-C]
Case Law ReferenceF
2018 (15) SCALE 88 distinguishedPara 7
CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 880 of 2009.
From the Judgment and Order dated 24.10.2008 of the High CourtGof Gujarat at Ahmedabad in Criminal Appeal No. 234 of 1990.
Ravi Prakash Mehrotra, Ankit Agarwal, Ms. Deepti R. Mehrotra,Advs. for the Appellants.
Ms. Jesal Wahi (for Ms. Hemantika Wahi), Adv. for theHRespondent.
The Judgment of the Court was delivered by HEMANT GUPTA, J.
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1. The challenge in the present appeal is to an order passed by theHigh Court of Gujarat at Ahmedabad on 24.10.2008 maintaining convictionfor offences under Sections 302 and 324 of IPC against the appellantsfor causing death of Bhura Govind and Lakha Arjan.
2. The prosecution case is that on 1[st] July 1987 at about 12 midnightin Village Prempara-Rampara, the appellants caused injuries to BhuraGovind and Lakha Arjan with spears etc and on account of grievousinjuries inflicted, both of them died on the spot. The FIR was lodged at 7AM on 2[nd] July 1987 and the appellants were arrested on 17[th] July 1987.The cause of occurrence is that the appellants were not giving right ofway to the deceased. The complainant party had filed the civil suit inwhich injunction was granted in their favour. The appellants also lodgeda cross case which is Sessions Case No. 97 of 1987.
3. After completion of investigations, the appellants were made tostand trial. The appellants have been convicted for life for offence underSection 302 but no separate punishment was inflicted for the offenceunder Section 324 IPC.
4. In the present appeal, the argument of learned counsel for theappellants is that the deceased and their accomplices, 9 in number, werethe aggressors. The injuries have been inflicted on both the appellants.Such injuries have been proved by PW-10, Dr. Nikhilkumar Buch whowas posted at Civil Hospital, Junagarh at the relevant time. The appellantshave remained in hospital from 02.07.1987 to 17.07.1987. The appellantshave received grievous injuries, while protecting the possession of theirland, thus, they have acted in their right of private defence.
5. It is also argued in the alternative that the occurrence has takenplace at the spur of the moment without any pre-meditation and that theappellants are not taken any advantage or acted in a cruel or unusualmanner, therefore, the conviction of the appellants for the offences underSection 302 read with Section 34 IPC is not sustainable. In fact at best,an offence under Section 304 (Part II) can be said to have made out.The appellants have undergone more than 11 years of actual imprisonment,therefore, in the event the appellants are convicted for an offence underSection 304(Part II), they would be entitled to be released having B
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Acompleted the sentence which may be imposed as the maximum sentenceis 10 years for an offence under Section 304(Part II).
6. The argument is based on the statement of PW-13, MurlidharVasu, the Investigating Officer. He deposed that the appellant No. 1was lying at the spot and was bleeding. It is also argued that Vajibai,Bwife of appellant no. 1, has been examined as defence witness. Shedeposed that appellant no. 1 came home and informed her that 9 personshave assaulted both the appellants and it is she who telephoned the policeabout the occurrence. It is also argued that the cross case registered onthe basis of complaint of the appellants was separately investigated andthe trial conducted. Thus, the primary argument is that the occurrenceChaving taken place at the spur of the moment, the conviction of theappellants for an offence under Section 302 IPC is not maintainable.
7. The learned counsel for the appellants relies upon the judgmentof this Court in Jangir Singh Vs. State of Punjab[1] wherein the right ofprivate defence was found to be valuable right and that this right shouldDnot be construed narrowly.
8. Before we consider the argument raised by learned counselfor the appellants, injuries received by appellant no. 1 (Ex.12), who wasexamined on 02.07.1987 at 5.15 AM by PW-10-Dr. Nikhilkumar Buch,are as under:E
“D/E (1) CLW on central part of head 21/2”X1/2"X up to bonedeep vertical.
(2) Incise wound on forearm back middle part 1"X1/4"X up tomuscle deep oblique.
F(3) Incise wound on upper part of Lt foreman back ¾”X1/4"X upto bone deep vertical.
(4) CLW on route of Rt ear back 11/2"X1/4"X1/4" vertical.
(5) Border of Rt ear ¾th lower part cut.
(6) Swelling and tenderness of Rt forearm 9 fracture.
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(7) Abrasion on Lt shin lower part 1"X1/2" vertical
(8) 9 fracture of proximal phalanx of Lt ring finger.
H1 Criminal Appeal No. 2499 of 2009 decided on 31.10.2018
Cause of injury-Injury No. 2,3,5 are inflicted by some sharp cuttingobject.
Injury No. 1,4,6,7,8 are inflicted by some hard and blunt object.”
9. In respect of appellant no.2, the injuries received by him as reported by PW-10-Dr. Nikhilkumar Buch (Ex.11) are as under:
“C/o Assaulted at midnight
O/E 1) Incise wound on frontal part of head 2"x1/2"x up to bonedeep vertical.
2) Incise wound on Lt fore arm Lower part outer side 1"x1/4"x1/
4" vertical.
3) Incise wound on Lt forearm Lower part backside ½”x1/4"x1/
4" oblique.
4) Incise wound on Rt shin lower part 1"x1/2"x1/4" vertical.
5) Swelling and tenderness of 2" diameter on Rt upper outer ofThigh.
6) Swelling and tenderness of Lt forearm 9 fracture.
Cause of injury-Injury No. 1 to 4 are inflicted by some sharpcutting object.
Injury No. 5 and 6 are inflicted by some hard and blunt object.”
10. The post-mortem report of the deceased-Bhura Govind showsinjuries on the vital parts. The injuries inflicted are on the chest. Theseinjuries are as under:
“1. One pocket wound, at the place of rib of No. 3, which injurywas in the left chest in middle part which wound was 22 inch x 1inch horizontal and 7 inch depth, which would was slanting.
2. One pocket wound, on left back part was 1.5 inch x half inch2.5 inch depth.
3. One would was pocket in the left side of the body. Which wasslanting of 1 inch x half inch x 1.5 inch in shape.
There was fracture at injury No. 1 on left third rib. These allinjuries were of before the death. The corresponding injuries ofwhich were as under:- A
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A1. The layer of the lungs was cut on the front and back at theplace of injury No. 1.
2. In right lungs, upto injury no. 2, the wound was stretched. Whichwas stretched upto the lower lib.
3. The upper part of the left lungs, there was wound from front toBback straight. Which was corresponding wound to injury no. 1.The vein of lungs and artery and the trachea were cut. In the leftside of chest the air was there and the blood was gathered/collected.”
11. The injuries on the dead body of Lakha Arjan are as follows:C
“1. On the shoulder of left arm, one pocket wound, which woundwas slanting of 1 inch x 0.5 inch depth.
2. One pocket wound, on the left side below of the armpit thewound was 2.5 inch x 1 inch x 6 inch, which would was going tohorizontal side.D
He states that these injuries were of before the death. He statesthat on the body of the deceased there was corresponding injurieswhich were as under:-
1. The layer of left lungs was cut at the place of injury No. 2. TheEupper part on trachea of left lungs, the upper part of the left lungswas cut. The left lungs were tightened and there was air in it andthe blood was gathered.
2. The vein and artery of the lungs were cut.”
12. The prosecution has relied upon the statement of complainantFPW-3, Ramabhai Rajan as also the statement of PW-4 GovindbhaiPunabhai who are injured witnesses. PW-2 Dr. Govindbhai Lakhmanbhaihas been examined to prove the injuries on prosecution witnesses.
13. In fact, the presence of the two witnesses at the time ofoccurrence is not seriously disputed. It is statement of PW 3 which ledGto lodging of First Information Report that the appellants who were 7 to8 in number challenged the witnesses at about 12 night on 01.07.1987.The appellants were having spear, Hansraj was having axe and otherswere having sticks. They attacked the deceased and both the injuredwitnesses with spears and axe.
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14. The learned Trial Court granted benefit of doubt to Hansrajwhereas convicted the appellants for offence under Section 302 IPC.
15. The appellants have lodged cross First Information Report,Ex.23. There is no evidence on the part of the appellants that thedeceased were armed with any weapon in the first version, when theylodged report. The right of private defence is not available when thealleged assailants are unarmed. The right of private defence is to protectthe person and the property. In such right, the person cannot cause moreharm than what is necessary for the protection of the person and theproperty. What harm can be expected from the hands of the deceasedwhen they were un-armed, whereas from the testimony of PW-3 andPW-4, the injured witnesses, the appellants were armed with spears andother weapons. The Post-Mortem report corroborates an oral testimonythat both the deceased have received stab wounds. Therefore, theappellants cannot be said to have acted in the right of their private defence.
16. It has been held in the judgment of this Court in Jangir Singhcase (supra), that in order to succeed in such plea of private defence, itmust be proved that the right of private defence extended to cause death.The said judgment arises out of the fact wherein, the accused and thedeceased were the volunteers in the Punjab Home Guard and both hadself-loading rifles of 0.003. They had altercation in respect of borrowingof money for about 15 minutes, thereafter the appellant fired at thedeceased which has taken his life. The Court found that both the deceasedand the appellant were altercating face to face standing at a distance of10 feet from each other. Keeping in view the facial expressions, theappellant felt imminent danger from the fact of aiming of rifle at him bythe deceased. In the present case, the deceased were not carrying anyweapon which is evident from first statement given on behalf of theappellants.
17. The argument that one of the appellants was lying in a pool ofblood at the place of occurrence on the basis of statement of theInvestigating Officer does not merit any consideration. The first versionof the appellants is that the deceased were not armed. The deceasedmay be accompanied by some other person who might have causedinjuries on the person of the appellants. However, there is no evidence,who were the persons accompanying the deceased and with what weaponand what is their role. Such aspect is not the subject matter of the presenttrial. Separate trial is in progress in respect of First Information Report A
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Alodged by the appellants. Since the deceased were not armed, therefore,the appellants are not entitled to the right of private defence.
18. The deceased had multiple stab wounds on the chest. Sincethere are multiple wounds, it cannot be said that the appellants haveacted at the spur of the moment without pre-meditation and that theBappellants are not taken any advantage or acted in a cruel or unusualmanner. It is not a case of single injury which one can infer on accountof sudden fight. We, therefore, do not find any merit in the alternateargument that the appellants are entitled to be convicted under Section304 IPC as they have given multiple injuries on the vital parts of thedeceased. The learned Trial Court as well as the High Court was perfectlyCjustified in law in convicting and sentencing the appellants for the offenceunder Section 302 IPC. We do not find any error in the order passedwhich may warrant our interference in the present appeal. The criminalappeal is dismissed.
DKalpana K. Tripathy
Appeal dismissed.
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