Back
2009 Supreme(SC) 611
Supreme Court of India
THE HONOURABLE DR. JUSTICE ARIJIT PASAYAT & THE HONOURABLE MR. JUSTICE ASOK KUAMR GANGULY
Hanumantappa Bhimappa Dalavai & Another – Appellant
Versus
State of Karnataka - Respondent
CRIMINAL APPEAL NO.672 OF 2005
Decided On: 31-03-2009
For the Appellants:Rajesh Mahale, Advocate. For the Respondent:Sanjay R. Hegde, A. Rohen Singh, Vikrant Yadav, Nishant Mishra, Advocates.
IMPORTANT POINTS
Burden to prove availability of right of private defence lies on the accused taking the plea.
However, the burden is discharged by preponderance of probabilities.
Non-explanation of injuries on person of accused is an important circumstance.
Headnote:(a) Indian Penal Code, 1860 – Section 96 to 106 – Right of private defence – If plea of right of private defence is taken by accused, burden is on him to prove the same – However, the burden is discharged by preponderance of probabilities. (Para 7, 8)
AIR 1968 SC 702; AIR 1975 SC 1478; AIR 1977 SC 2226; AIR 1979 SC 577; AIR 1979 SC 391 – Relied upon
(b) Indian Penal Code, 1860 – Sections 96 to 106 – Right of private defence – Aggressor – Determination of – Number of injuries nit always a safe criteria – Injuries on person of accused – Do not necessarily lead to presumption that these were sustained in exercise of the right of private defence – Non-explanation of injuries on person of accused is an important circumstance – However, such non-explanation may not always affect prosecution version – Running to house, fetching a tabli and assaulting the deceased – Only show a design to kill – Goes out of the purview of private defence. (Para 9, 10, 11)
AIR 1976 SC 2263; AIR 1963 SC 612; AIR 1975 SC 87; 2002 (7) Supreme 124; (2007) 13 SCC 374 – Relied upon
Facts of the case:
Appellants were convicted and sentenced u/s 302 IPC. Appellant no, 1 was additionally convicted and sentenced u/s 326 IPC.
The High Court upheld the conviction and sentence.
Finding of the Court:
There is no infirmity in the impugned judgment.
Result:
Appeal dismissed.
Judgment:
Dr. Arijit Pasayat, J.
1. Challenge in this appeal is to the judgment of a Division Bench of the Karnataka High Court upholding the convictions of the appellants for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC). The appellant No.1 was additionally convicted for offence punishable under Section 326 IPC.
2. Prosecution version in a nutshell are as follows:
The accused nos.1 to 3 - the deceased and injured belonged to Salahalli Village. There is a tea shop of the accused No.1 situated outside the village, by the side of the compound of which a public road is situated, some jail hedges have grown in the said land of accused No.1 by the other side of the road, which have over grown obstructing to some extent the public path. With regard to the inconvenience caused to the passersby and the persons taking vehicles like tractor, the complainant - Irappa Aijappa Kuri (P.W.5) often complained to the accused No.1 to cut the excess hedges, to which the accused No.1 paid no heed. On 1.2.1995, while coming home, the complainant asked the accused No.1 to cut the excess growth of hedge for which the accused No.1 became angry and threatened that he would see the person who dared to cut the hedges and also abused the complainant. The next day evening, the complainants younger brother - Mahadev (first deceased) came from Gokak and when the complainant and his family members told about the incident that had taken place on the previous day, Mahadev immediately expressed his desire to go to the accused No.1 and confront him about this. Then immediately, he left the place followed by the complainant (P.W.5), complainants wife – Lalithawa Kuri (P.W.18), complainants elder brother - Basappa Sidnal (the second deceased), complainants sister - Suit Yallawwa Dundappa Shidnal (P.W.19), complainants brother - Siddappa Ajjappa Kuri (P.W.20), complainants sisters-in-law - Renuka Kuri (P. W. 24) and Smt. Anasuya Sidnal (P.W.26). When Mahadev questioned the accused No. 1 about his behaviour with the complainant the previous day, the accused No.1 became angry about the audacity of Mahadev in coming to his hotel about that matter and to question him; and challenging Mahadev, he went inside the hotel, brought a crow-bar and by that instrument gave a blow on the head of Mahadev. In the meantime, the accused No.1s son - Vittal (accused No.2) brought a stick and another son-Maruti (accused No.3) brought an iron rod saying that these people would not be allowed to go, and started assaulting them. The accused No-3 assaulted Basappa by means of an iron rod on account of which Basappa started to bleed. The accused No.1 gave a blow on the complainants wife Lalithavva by means of the crow bar on account of which she fell down and when he attempted to give a blow by means of that crow-bar on the complainant, the complainant avoided it but the blow fell on his left hand and he sustained injury. The accused No.2 attacked P.W.18 by means of a stick. In the meantime, the people assembled and saved these persons. But, by that time Mahadev and Basappa had sustained grievous injuries. The injured were taken to Ramadurga in the jeep of Prakash (P.W.25). The doctor at Ramadurga examined Mahadev and pronounced him dead. For further treatment, Basappa and Lalithavva were taken to Belgaum hospital where Basappa died later. In the meantime, the police had received information in Kattakol Police Station, which had jurisdiction over the area and the. Sub-Inspector of Police went to Ramadurga with a Police Constable and took the complaint, on the basis of which a case was registered and investigation was taken up. The accused were not available. They were traced on 9.2. 1995 and were arrested and were produced before the learned Magistrate. They were remanded to judicial custody. After investigation, the Police filed a charge sheet against the accused.
3. The accused pleaded not guilty to the charges and claimed to be tried. The prosecut
