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2008(5) Supreme 647
Supreme Court of india
(From Rajasthan High Court)
Satya Narain Yadav — Appellant
versus
Gajanand and Anr. — Respondents
Criminal Appeal No. 305 of 2001
(With Criminal Appeal No. 999 of 2001)
Decided on : 01-08-2008
AIR 1968 SC 702; AIR 1975 SC 1478; AIR 1977 SC 2226; AIR 1979 SC 577 – Relied upon.
(b)Indian Penal Code, 1860 – Section 99 – To claim 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. (Para 11)
(c)Indian Penal Code, 1860 – Sections 102 and 105 – The right to private defence lasts so long as the reasonable apprehension of the danger to the body continues. (Para 12)
AIR 1963 SC 612 – Relied upon.
(d)Indian Penal Code, 1860 – Section 96 – 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. (Para 13)
AIR 1975 SC 87; (1996) 1 SCC 458; (2002)8 SCC 354; AIR 1991 SC 1316 – Relied upon.
(e)Indian Penal Code, 1860 – Section 96 – The right of private defence is essentially a defensive right circumscribed by the governing statute available only when the circumstances clearly justify it – A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived. (Para 17)
AIR 1971 SC 1857; (2005)10 SCC 358; Cri. A. arising out of SLP (Crl.) No.1029/07 – Relied upon.
(f)Code of Criminal Procedure, 193 – Section 378 – In an appeal against acquittal the High Court has full power to reappreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence – Both questions of fact and of law are open to determination by the High Court in an appeal against an order of acquittal – However, it ought to be kept in mind that presumption of accused’s innocence is rather reinforced by his acquittal by the trial court – General principles culled out from Supreme Court decisions stated. (Paras 22, 23 and 48)
(1934) 61 IA 398; AIR 1945 PC 151; AIR 1954 SC 36; (1952) SCR 193; (1953) SCR 418; AIR 1955 SC 807; (1955)2 SCR 1285; (1961) 3 SCR 120; (1963) 2 SCR 405; (1973)2 SCC 793; (1979) 1 SCC 355; (1996) 9 SCC 225; (2002) 3 SCC 57; (2002) 4 SCC 85; (2002) 6 SCC 470; (2003) 12 SCC 606; (2006) 10 SCC 313; (2007)4 SCC 415 – Relied upon.
(g)Words and Phrases – Proof – What degree of probability amounts to “proof” is an exercise particular to each case – Doubts would be called reasonable if they are free from a zest for abstract speculation. (Paras 49, 50)
(1988)4 SCC 302; (2003)7 SCC 56 – Relied upon.
Facts of the case :
1.While Kana (PW-13) and his brother Devi Lal (the ‘deceased’) were working in the field, respondent No.1-Gajanand and Mahavir objected to it and caused injury to him. It was stated that Gajanand was having an axe in his hand and he caused injuries to Devi Lal on his head. Earlier, a case under Section 307 IPC was registered but on the death of Devi Lal charge under Section 302 IPC was added.
2.The Trial Court found Gajanand guilty of offence punishable under Section 302 IPC. Mahavir was acquitted.
3.Present respondent preferred an appeal before the High Court which by the impugned judgment set aside the conviction.
Finding of the Court :
High Court did not err in reversing the order of acquittal.
Result : Appeals dismissed.
Judgment
Dr. Arijit Pasayat, J. —
1.These two appeals are directed against the Judgment of a Division Bench of the Rajasthan High Court directing acquittal of respondent Gajanand. One appeal has been filed by the informant while the other has been filed by the State. The trial Court i.e. learned Additional Sessions Judge, No.2, Bundi, Rajasthan, had convicted Gajanand for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’) and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.2,000/- with default stipulation. Co-accused Mahavir was, however, acquitted.
2.Background facts in a nutshell are as follows :
Kana (PW-13) lodged a First Information Report (Ext.P-2) that while he and his brother Devi Lal (hereinafter referred to as ‘deceased’) were working in the field, respondent No.1-Gajanand and Mahavir objected to it and caused injury to him. It was stated that Gajanand was having an axe in his hand and he caused injuries to Devi Lal on his head. Earlier, a case under Section 307 IPC was registered but on the death of Devi Lal charge under Section 302 IPC was added. After completion of investigation, challans were submitted against Gajanand and Mahavir.
3.As appears from the first information report the informant had stated that while they were harvesting the wheat at the agricultural land in the morning two cow boys were grazing their goats. When loss was caused to the crops, Devi Lal asked them not to do so. They insisted that goats would be grazed and their names were Gajanand and Mahavir. When Devi Lal further asked them not to do so, Gajanand gave a blow of axe on the left side of his head and the deceased fell down. Thereafter, Mahavir assaulted with fists and the handle of the axe. Thereafter both of them fled away.
4.Charge sheet under Section 302 as well as under Section 302 read with Section 149 was filed separately against accused persons. The accused persons pleaded innocence. Sixteen witnesses were examined to further the prosecution version. Kana (PW-13) was stated to be an eye-witness. The Trial Court found Gajanand guilty of offence punishable under Section 302 IPC. Mahavir, as noted above, was acquitted. Present respondent preferred an appeal before the High Court which by the impugned Judgment set aside the conviction.
5.The accused had taken the stand during trial that when Mahavir was trying to drive out the goat which entered into the field of Devi Lal, he was given beatings by the deceased and two lathi blows were inflicted on him. When Gajanand came to his rescue, he was also addressed in contemptuous manner and was given two lathi blows.
6.It was stated that by exercising the right of private defence, two blows were given by Gajanand and, therefore, the accused person cannot be convicted. The High Court has accepted this stand of the accused and held that the right of private defence is available.
7.In support of the appeal filed by the State and the informant it is submitted that the trial Court has erroneously held that the accused were exercising the right of private defence.
8.Learned counsel for the accused-Gajanand submitted that when injury was caused by lathi not only on Mahavir but also to Gajanand-respondent, it cannot be said that they were not exercising the right of private defence. In any event, according to him, if parameters of appeal against acquittal are kept in view, no interference is called for.
9.Only question which needs to be considered is the alleged exercise of right of private defence. 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 legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts a
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