IMPORTANT POINT
In order to find whether right of private defence is available or not, injuries received by accused, imminence of threat to his safety, injuries caused by accused and circumstances whether accused had time to have recourse to public authorities are relevant factors.

Headnote:Indian Penal Code, 1860-Section 302-Respondent accused was convicting for causing death of victim by gun-shot-High Court altered conviction to one u/s 304 Part I IPC accepting plea of self defence-State appeal-Whether in a particular set of circumstances, a person had legitimately acted in exercise of right of private defence is a question of facts-Defence must be a reasonable and probable version satisfying Court that harm caused by accused was necessary for warding off attack-Non-explanation of injuries sustained by accused at about the time of occurrence is important circumstance-Burden is on accused to show that he had a right of private defence which extended to causing death-Right of private defence is a defensive right circumscribed by statute-Father of accused had received five minor superficial injuries-Conclusion reached by High Court was based on surmises-Impugned judgment was liable to be set aside and that of trial Court to be restored.
Held : We find that the High Court has acted on surmises and conjectures to conclude certain aspects. Firstly, it has come to conclude that the boys including the deceased attacked Ramesh "may be with fists, may be with some blunt weapon". There was no evidence in this regard. It was further held that there was no reason for Ram Kirpal and his family members to pelt stones. The deceased and his friends attacked Ram Kirpal though weapon used by them are not known. Reference was made to the injuries on Ram Kirpal. It was further held that probably some heat was generated either because of the advise of Ram Kirpal was not accepted or because request of the boys to issue certificate was not accepted by him. Because of the heat generated between the boys and Ram Kirpal, the boys started hitting Ram Kripal causing injuries. In this condition "probably" he asked his sons to shoot the assailants and Ramesh fired a gun shot resulting in fatal injury to deceased and grievous injury to Krishna. It was further held that when there was some exchange of hot words between the deceased and his friends, on one hand and Ram Kishan on the other the boys started attacking on his father and this was grave and sudden provocation to the sons. In the aforesaid background it was held that when Ram Kirpal asked his sons to kill. Exception I to Section 300 would be attracted. The conclusions are not based on evidence and are based on surmises, conjectures and guess work. As aforesaid noted, it was first concluded that right of private defence was exceeded. It was further held that the case is covered by either Exception I or Exception II to Section 300, as injuries on the accused not explained. The findings are vague, unclear and indefensible. As noted above, for some conclusions the High Court acted without any evidence and frequently used the expression `Probably . A new case which was not even pleaded by the parties was introduced on its own by the High Court. Undue importance was attached to some superficial injuries of very minor nature on Ram Kirpal. It is trite that there are some minor or superficial injuries suffered by the accused that shall not affect a credible and cogent prosecution version even if the prosecution has not explained the injuries. The vaccilating nature of the conclusions is apparent because the High Court was not very sure as to whether Exception I or Exception II to Section 300 I.P.C. applied. They operate in entirely different fields. One relates to grave and sudden provocation and the other to exercise of right of private defence. The High Court was not justified, therefore, to alter the conviction to Section 304 Part I IPC. The trial Court had rightly convicted the accused in terms of Section 302 IPC. (Paras 18 and 19)

JUDGMENT

Arijit Pasayat, J.-State of Madhya Pradesh calls in question legality of the judgment rendered by the Division Bench of the Madhya Pradesh High Court. The respondent faced trial for alleged commission of offences punishable under Sections 302 and 338 of the Indian Penal Code, 1860 (in short the IPC ). Originally his father Ram Kirpal, brother Rakesh and mother Nonibai also faced trial with him. They were acquitted by the trial Court, while respondent was convicted for causing the homicidal death of one Rajendra (hereinafter referred to as the deceased ) by gun shot on 20.5.1986. He was sentenced to life imprisonment for the offence relatable to Section 302 IPC. He was also convicted in terms of Section 338 IPC for causing grievous injury to Krishna (PW-6) who was injured by the same bullet which after passing through the body of deceased Rajendra struck Krishan and caused grievous injury to him. For this offence he was sentenced to undergo RI for one year and fine of Rs. 1000/- with default stipulation.

2. Prosecution version in nutshell is as follows:

On 20.5.1986 deceased Rajendra and Kuldeep (PW 1) were returning after their examination. They were passing in front of the house of Ram Kripal (acquitted accused) who was a municipal councillor those days. Ram Kirpal knowing that these boys were friendly with Dinesh (PW-2), who was a press reporter of that area, advised them to abjure company of Dinesh. Finding them non-responsive Ram Kirpal, his two sons Ramesh and Rakesh and his wife Nonibai started pelting stones on deceased Rajendra and Kuldeep (PW 1). Thereafter, Ram Kirpal asked his son Ramesh to get his gun from the house. Ram Kirpal asked Ramesh to shoot these boys, Ramesh then brought out a 12 bore gun and fired a shot at deceased Rajendra from a distance of about 5 paces. At that time Dinesh (PW 2) reached there while the shot was fired. This shot struck Rajendra in the left iliac crest passing through the stomach region and damaged various internal organs. It emerged from the right side of the body and struck Krishna (PW 6) who also happened to reach by that time. The bullet struck him in the left arm and passed through fleshy portion and then struck the back region and got embeded on the spinal cord, ultimately resulting in paralysis. Rajendra died at the spot.

3. The prosecution case based on the testimony of Kuldeep (PW-1), Krishna (PW-6), Dinesh (PW-2), Sureshwar Pandey, ASI (PW-8), who also happened to be present there and had witnessed the incident. Further reliance was placed on the medical report of autopsy surgeon and medical opinion regarding injuries of Krishna. Medical report showed that deceased Rajendra had been struck with the gun shot which entered into left iliac crest and emerged in the right side and injured some vital organs such as Kidney, Spleen and Liver. The FIR was lodged by Kuldeep (PW-1) on the same day within 10 minutes after this incident.

4. The accused s case was that Rajendra had approached Ram Kirpal in his capacity as Municipal Councillor to obtain his residential certificate. He had gone with the other boy. Ram Kirpal knew that Rajendra was in fact resident of Uttar Pradesh and not resident of Chhatarpur, so he declined. This resulted in exchange of hot words. Rajendra had been persuaded by Dinesh (PW 2) who was a press reporter and whose writings were used to be against Ram Kirpal in respect of developments of various areas of municipality. Dinesh (PW 2) had also tried to put his influence on Ram Kirpal for issuing certificate to Rajendra but Ram Kirpal did not oblige. He was attacked by these boys and he suffered 5 injuries. He was medically examined next day after the incident and 5 injuries caused by blunt object were found on his person. So his case was that since he was attacked by these boys, he called for help from his sons. Ramesh brought out a gun and that gave rise to the firing.

5. The story of the first attack on Ram Kirpal did not find favour with the trial Co

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2004 Supreme(SC) 1429

IMPORTANT POINTIn order to find whether right of private defence is available or not, injuries received by accused, imminence of threat to his safety, injuries caused by accused and circumstances whether accused had time to have recourse to public authorities are relevant factors.

Cases Referred (12)

IMPORTANT POINT
In order to find whether right of private defence is available or not, injuries received by accused, imminence of threat to his safety, injuries caused by accused and circumstances whether accused had time to have recourse to public authorities are relevant factors.