2006 Supreme(SC) 774

2006(6) Supreme 574
SUPREME COURT OF INDIA
(From Bombay High Court)
S.B. Sinha and Dalveer Bhandari, JJ.
Surendra & Anr. — Appellants
versus
State of Maharashtra — Respondent
Criminal Appeal No. 506 of 2005
Decided on 24-8-2006
Counsel for the Parties :
For the Appellants : Rishi Malhotra, Prem Malhotra, Advocates.
For the Respondent :V.N. Raghupathy, Ms. Asha G. Nair (for Ravindra Keshavrao Adsure), Advocates.

IMPORTANT POINT
In all circumstances injuries on person of accused need not be explained but a different standard would be applied in a case where a specific plea of right of private defence has been raised.

Headnote:Indian Penal Code, 1860 — Section 302/34 and 324/34 — Appellant No. 2 came out with a stick and hurled some blows on PW3 when PW3 was passing in front of house of appellant — PW1, sister of PW3 raised have and cry and deceased, father of PW3 came out of his house — Appellant No. 1, brother of appellant No. 2 took out one Ubhari (a big stick) from a bullock cart and assaulted deceased — Appellants pleaded a defence of right of private defence — Trial Court rejected defence and convicted both appellants for offences under — High Court upheld conviction — Appeal — Appellants had taken possession of land from deceased in execution of a decree and deceased and PW3 must be nurturing grudge against them — Appellants suffered injuries but material as regards their injuries was not brought on record — Courts below committed manifest error of law in opining that appellants had not discharged initial burden cast on them — Court must see whether plea of exercise of private defence was probable in facts and circumstances — Possibility of PW3 and deceased being aggressors could not be ruled out — It was a case where it was likely that sudden fight between parties erupted — Appellant No. 1 suffered minor injuries but situation did not appear that he could apprehend reasonably his death — Appellants exceeded their right of private defence and their conviction was liable to be converted to one u/s 304 Part I IPC and sentence of 10 years imprisonment awarded.

       Held : Taking place of the incidence is not in dispute. The Appellants had taken possession of the land from the deceased in execution of a decree. The deceased and Dilip, therefore, must be nurturing grudge against them. Admittedly, a large number of litigations were pending between the parties. (Para 20)

       The learned Trial Judge also in his judgment noticed that the deceased and his son had intention to kill Appellant No. 1 and the Appellants suffered injuries. Despite the admitted fact that a case under Section 324 of the Indian Penal Code was registered against Dilip and his father, the Investigating Officer had not brought any material on records as regards the injuries suffered by them. The Appellants had called for the injury report but the same was not produced. (Para 21)

       The Investigating Officer even did not draw up a sketch map. He did not make any investigation from the point of view of the defence. The investigation was, thus, not fair. (Para 22)

       In a case of this nature, in our opinion, a broad view of the entire matter was required to be taken, viz.,

       (i)Appellant No. 1 was not armed and he at a later stage of quarrel took out an ubhari from a bullock cart.

       (ii)He had raised a contention even in his bail petition that he had exercised his right of private defence.(Para 23)

       We are not unmindful of the fact that in all circumstances injuries on the person of the accused need not be explained but a different standard would be applied in a case where a specific plea of right of private defence has been raised. It may be true that in the event prosecution discharges its primary burden of proof, the onus would shift on the accused but the same would not mean that the burden can be discharged only by examining defence witnesses. (Para 24)

       The learned courts below committed a manifest error of law in opining that the Appellants had not discharged the initial burden which is cast on them. Even such a plea need not be specifically raised. The Courts may only see as to whether the plea of exercise of private defence was probable in the facts and circumstances of the case.(Para 25)

       The defence of the Appellants, therefore, could not have been wished away. In a case of this nature, it was necessary on the part of the prosecution to explain the injuries on the part of the accused. The investigation of the entire cases and particularly in regard to the fact that there were cross cases, a fair investigation was expected. The possibility of PW-3 and the deceased being the aggressors cannot be ruled out. It would bear repetition to state that they had been bearing grudge against Appellant No. 1.(Para 32)

       Why the occurrence took place in front of the house of the Appellants had not properly been explained by the prosecution witnesses. Evidently, there was no pre-meditation on the part of Appellant No. 1. He was not armed. He took out an ubhari from his bullock cart at a later stage. (Para 33)

       The possibility of PW-3 and the deceased being aggressors must be judged from the admission made by PW-3 that they intended to kill Appellant No. 1. As has been noticed hereinbefore, the statements of the prosecution witnesses in regard to the genesis of occurrence and the presence of the prosecution witnesses at different stages are not uniform. It is, therefore, a case where it is likely that sudden fight between the parties erupted which would attract Section 304 of the Indian Penal Code and not Section 302 thereof. It is also a case where an inference can safely be drawn that the blows were initially not hurled on the deceased by the Appellants. They did so at a later stage. But, Appellant No. 1 suffered minor injuries. He had not been able to show that the situation was such that he could reasonably apprehend his death. They have exceeded their right of private defence in using more force upon the deceased than was necessary. (Para 34)

       For the reasons aforementioned, we are of the opinion that the conviction of the Appellants under Section 302 read with Section 34 of the Indian Penal Code cannot be sustained. They are held guilty for commission of an offence under Part I, Section 304 of the Indian Penal Code. They are directed to suffer rigorous imprisonment for a period of 10 years. The conviction and sentence imposed on them under Section 324 read with Section 34 is, however, upheld. The sentences, however, shall run concurrently. This appeal is, thus, allowed in part and to the extent mentioned hereinbefore. (Para 36)