2012 Supreme(SC) 343

2012 (3) Supreme 453
SUPREME COURT OF INDIA
K.S. Radhakrishnan and Dipak Misra, JJ.
Arjun — Appellant(s)
versus
State of Maharashtra — Respondent(s)
Criminal Appeal No. 356 of 2007
Decided on 03-05-2012

IMPORTANT POINTS
It is for the accused claiming the right of private defence to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution, if a plea of private defence is raised.
2. A plea of right of private defence cannot be based on surmises and speculation. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting.

Headnote:Indian Penal Code,1860-Sections 302,326-Prosecution of appellant for causing death of deceased by assaulting him with knife and for causing grievous injuries to wife of deceased-Conviction by Trial Court-Appeals thereagainst –Dismissed-Appeal-Plea of appellant that findings rendered by courts below that it was the appellant who was the aggressor and hence the plea of private defence was not available, was not correct- Evidence of PWs 1, 8, 10 and 11 with regard to assault, of appellant on deceased, was fully corroborated by medical evidence as well as evidence of independent witnesses- The mere fact that other seven accused were acquitted or that some of the prosecution witnesses were also convicted not sufficient to hold that appellant was not the aggressor- The deceased was unarmed so also his wife and the son- At the same time, accused was armed with a knife- No evidence to show that deceased, his wife PW 8 or his son PW 1 had ever attacked the accused- Nor the surrounding circumstances indicated that there was a reasonable apprehension that death or grievous hurt was likely to be caused to appellant by them or others- The plea of private defence having no basis held liable to be rejected- Act was committed in a heat of passion -Appellant had not taken any undue advantage or acted in a cruel manner and there was a fight between the parties- Hence held just and proper to alter the conviction from Section 302 IPC to Section 304 Part 1 IPC (Paras 11, 12 to 17)

        Indian Penal Code,1860-Section 99- Right of private defence –Scope and ambit of-Law clearly spells out that right of private defence is available only when there is a reasonable apprehension of receiving injury- Section 99 IPC explains that the injury which is inflicted by a person exercising the right should commensurate with the injury with which he is threatened- True, that the accused need not prove the existence of the right of private defence beyond reasonable doubt and it is enough for him to show as in a civil case that preponderance of probabilities is in favour of his plea- Right of private defence cannot be used to do away with a wrong doer unless the person concerned has a reasonable cause to fear that otherwise death or grievous hurt might ensue in which case that person would have full measure of right to private defence (Para 12)

       Facts of the Case :

        A. The appellant, herein, was convicted for the offence punishable under Section 302 of Indian Penal Code for murder of deceased and for the offence punishable under Section 326 IPC for causing grievous hurt to wife of deceased.

        B. Aggrieved by the order of conviction and sentence, the appellant preferred Appeal and the State preferred Appeal against acquittal of accused No.8 before the High Court .The High Court dismissed Appeal filed by appellant and confirmed the conviction and sentence passed by the trial court against the appellant. Appeal preferred by State against acquittal of accused No.8 was also dismissed by the High Court. Aggrieved, this appeal has been preferred by appellant. Plea of appellant that findings rendered by courts below that it was the appellant who was the aggressor and hence the plea of private defence was not available, was not correct

       Findings of the Court :

        A. The evidence of PWs 1, 8, 10 and 11 with regard to the assault, of the appellant on the deceased was fully corroborated by the medical evidence as well as evidence of independent witnesses. PW 9 had proved the recovery of the weapon of offence. PW 8 , wife of the deceased had also sustained injuries due to the attack of the appellant, when she intervened to protect her husband. The facts clearly indicated that the appellant harboured grudge against the victims in view of the property dispute. The evidence of PW 12 indicated that the deceased had sustained serious injuries on the brain. The facts indicated that PW 1 and others had, in fact, obstructed the appellant but he was having a knife with which could inflict three fatal injuries on the head of the deceased. The mere fact that the other seven accused were acquitted or that some of the prosecution witnesses were also convicted was not sufficient to hold that the appellant was not the aggressor. True, there were some minor injuries on the accused and some serious injuries on PW 8 as well.

        B. Evidence of PWs 1, 8, 10 and 11 clearly indicated that the appellant was armed with a knife and it was with that knife he had inflicted serious injuries on the head of the deceased . There was also sufficient evidence to show that appellant had inflicted injuries on the wife of the deceased as well when she tried to save her husband. The deceased was unarmed so also his wife and the son. At the same time, the accused was armed with a knife. There was no evidence to show that deceased, his wife (PW 8) or his son (PW 1) had ever attacked the accused. Nor the surrounding circumstances indicated that there was a reasonable apprehension that death or grievous hurt was likely to be caused to the appellant by them or others. The plea of private defence hence held liable to be rejected.

        C. Considering the background facts as well as the fact that there was no premeditation and the act was committed in a heat of passion and that the appellant had not taken any undue advantage or acted in a cruel manner and that there was a fight between the parties, held just and proper to alter the conviction from Section 302 IPC to Section 304 Part 1 IPC.