IMPORTANT POINT
In the facts and circumstances of the case the appropriate conviction would be u/s 304 Part I of IPC instead of u/s 302 IPC and sentence of 10 years instead of awarded life imprisonment will meet the ends of justice.

Headnote:(i) Indian Penal Code, 1860-Section 96-Right of Private defence-Evidence Act, 1872-Section 106-Onus is on the accused-IPC 1860-Section 302-Dispute on release of sheep-Appellant causing blow on deceased, deceased falling down and thereafter gave a further blow on neck-High Court holding that it is not a case of private defence-Whether correct? (Yes)-It is a case of exceeding right of private defence-Result-Modification of conviction.
       Held : In view of the categorical evidence of PW-1, PW-2 and PW-3 implicating the accused, we find no reason to accept the plea of the accused about his innocence. In fact, the occurrence has been accepted but the plea was one of exercise of right of private defence. The plea relating to exercise of right of private defence has been rightly rejected by the courts below. It is in evidence that accused dealt a further blow on the neck, after the deceased had fallen down after receiving blows on other parts of the body. (Para 5)
       After reviewing case law and statutory provisions
       Held : In order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. We notice that there was an altercation between the accused and the deceased. There was no pre-meditation and the assaults were given by the accused during the course of the sudden quarrel. This, according to us, brings the case within the ambit of Exception IV to Section 300 IPC. Even otherwise, this appears to be a case of accused exceeding the right of private defence. The appropriate conviction would, therefore, be under Section 304 Part I, IPC and custodial sentence of 10 years would meet the ends of justice. (Paras 10 and 11)
       (ii) Indian Penal Code, 1860-Sections 302 and 34-Nature of offence found not murder but culpable homicide not amounting to murder-Question of sentence-Courts below had convicted u/s 302 and awarded life imprisonment-Supreme Court altering conviction from 302 IPC to S. 304 Part I-Question of awarding sentence-10 years RI is sufficient-Appeal allowed in part accordingly.
       Held : While awarding the sentence, one factor which has weighed with us is that two rustic villagers fought over a sheep which led to the death of one. The social status of the accused and the deceased, which as the materials on record show is that of the lowest layer. They belonged to the economically distressed class; were illiterate daily wage earners. Their financial condition can be well gauzed from the fact that they fought over a sheep and the minimal damage done by it to the crops. There was no previous enmity. A spur of the moment loss of faculties led to the unfortunate occurrence. This is certainly a relevant factor to be taken note of while awarding the sentence. We, therefore, reduce the sentence to 10 years and if the accused has undergone the period of 10 years and is not required to be in custody in any other case, he shall be released forthwith. The appeal is allowed to the extent indicated. (Paras 12 and 13)

JUDGMENT

Arijit Pasayat, J.-The accused is in appeal before this Court against judgment of the Madras High Court upholding his conviction for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short "IPC") and consequential sentence of imprisonment for life.

2. The factual scenario as described by the prosecution needs to be noted in brief. On 19.8.1989, there was exchange of hot words over the release of a sheep. Palaniswamy (hereinafter referred to as "the deceased") impounded the sheep which, according to him, was destroying his crops. Accused and others went to the place where the sheep was tied and they untied it from the rope. This led to exchange of words between the deceased and the accused. When the deceased fell down after receiving injuries on his hand and left shoulder, the accused again inflicted another blow on his neck. The occurrence was witnessed by PW-1, PW-2 and PW-3. Information was lodged at the police station and on completion of investigation, charge-sheet was placed and the accused faced trial. The accused took the plea of false implication and alternatively pleaded that the assaults were made in exercise of right of private defence. The trial court placing reliance on evidence on PW-1, PW-2 and PW-3 came to hold that the accused was responsible for the death of the deceased. Plea of the accused that the assaults were made in exercise of the right of private defence was not accepted, more particularly in view of the fact that even after the deceased had fallen down, the accused inflicted a further blow on the neck.

3. In appeal, the High Court did not find any merit in the submissions made to the effect that this was a case which was clearly covered by the accused s exercise of right of private defence. Having rejected this stand of the accused, the High Court analysed the evidence to conclude that the conviction was justified.

4. Learned counsel for the appellant submitted that the evidence of witnesses examined to substantiate the stand of right of private defence has been lightly brushed aside by the trial court and the High Court. The accepted prosecution version being that the assaults were made in course of a sudden quarrel, Section 302 IPC has no application. Learned counsel for the State of Tamil Nadu, on the other hand, submitted that after analysis of the factual position, the trial court as well as the High Court have come to conclude that the accused was responsible for the death of the deceased and this is not a case where the right of private defence can be pressed into service by the accused.

5. In view of the categorical evidence of PW-1, PW-2 and PW-3 implicating the accused, we find no reason to accept the plea of the accused about his innocence. In fact, the occurrence has been accepted but the plea was one of exercise of right of private defence. The plea relating to exercise of right of private defence has been rightly rejected by the courts below. It is in evidence that accused dealt a further blow on the neck, after the deceased had fallen down after receiving blows on other parts of the body.

6. Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression right of private defence . It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence, is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is rot necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In

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2002 Supreme(SC) 999

IMPORTANT POINTIn the facts and circumstances of the case the appropriate conviction would be u/s 304 Part I of IPC instead of u/s 302 IPC and sentence of 10 years instead of awarded life imprisonment will meet the ends of justice.

Cases Referred (6)

IMPORTANT POINT
In the facts and circumstances of the case the appropriate conviction would be u/s 304 Part I of IPC instead of u/s 302 IPC and sentence of 10 years instead of awarded life imprisonment will meet the ends of justice.