2015 Supreme(SC) 57

SUPREME COURT OF INDIA
Dipak Misra, Prafulla C. Pant, JJ.
Pathubha Govindji Rathod & Anr – Appellants
Versus
State of Gujarat – Respondent
CRIMINAL APPEAL NO. 2282 OF 2014
Decided On : 21-01-2015

IMPORTANT POINT
When a person is inflicted deep injury by knife he has a right to retort. However if he uses fire arm and kills the offender, he exceeds his right of private defence and is liable u/s 304 Part I, IPC.

Headnote:(a) Indian Penal Code, 1860 – Section 96 – In a case of free fight, accused need to be fastened with individual liability – Specific role needs to be assigned to the accused – Normally right of private defence is not available to either party. (Para 13)

       (b) Indian Penal Code, 1860 – Section 300 Exception 2 r/w section 96 – Injured appellant no. 1 receiving deep knife blow on his back (scapular region) - Retorting by using his licensed firearm – Thereby killing one of his rivals – Exceeding his right of private defence – Culpable homicide not amounting to murder –Exception 2 of Section 300 attracted – Conviction modified to section 304 Part I. (Para 16, 17)

       (2008) 16 SCC 657; (2014) 5 SCC 744; (2013) 2 SCC 541 – Relied upon

       Facts of the case:

       On 2.9.2003 Bhurabhai Jivabhai, uncle of the complainant Satish Jotva, was intercepted by Pathubha Govindji Rathod (appellant no. 1) near bus stand. Accused/appellant no.1 picked up a quarrel with Bhurabha Jivabhai as to why he supported Natha Nagabhai (one of the deceased) in Gram Panchayat Election with whom the accused/appellant no.1 was not having cordial relations. Meanwhile Natha Nagabhai came there and joined Bhurabhai Jivabhai in the quarrel. This led heated exchange of words between both the sides, and crowd gathered there. Accused/Appellant no.1 was joined by his other supporters (co-accused), who were armed with deadly weapons like swords, knives and sticks while accused Pathubha Govindji was armed with revolver. On hearing the noise, complainant Satish Jiva Jotva and his another uncle Bhimshi Jiva, father of the complainant Hamir Nagabhai (another deceased), Malde Nagabhai, Bhurabhai Jivabhai, Punjabhai Bhimshibhai, Jagmal Jivabhai and some other villagers also gathered there. When the quarrel further aggravated between the two sides, accused/appellant no.1 Pathubha Govindji exhorted his supporters to kill Natha Nagabhai and teach lesson to other supporters. In the incident Natha Nagabhai and Hamir Nagabhai succumbed to the injuries and died.

       A complaint was given by Satish Jiva Jotva regarding the incident on the basis of which ICR No. 70 of 2003 was registered at Mangrol Police Station. A cross version of incident (ICR No. 71 of 2003) was also registered by the police. After investigation, charge sheets were filed by the police against both set of accused. Sessions Trial No. 85 of 2003 relates to the charge sheet filed against accused/appellants Pathubha Govindji Rathod and Hemubha Govindji Rathod and eighteen others. After hearing the parties in the aforesaid sessions case, a charge was framed by the trial court against all the twenty accused in respect of offences punishable under Sections 147, 148, 302 r/w 149, 307 r/w 149, 326 r/w 149, 325 r/w 149, 324 r/w 149 and 506 (2) r/w 149 of Indian Penal Code and under Section 135 of the Bombay Police Act. Accused/appellant no.1 Pathubha Govindji was further charged in respect of offence punishable under Section 25(1)(a) and Section 27 of Arms Act. All the accused pleaded not guilty and claimed to be tried.

       In Sessions Case No. 53 of 2004 the five accused, namely, Malde Nagabhai Jotva, Bhimshi Jivabhai Jotva, Jagmal Jivabhai Jotva, Bhurabhai Jivabhai Jotva, Punjabhai Bhimshibhai Jotva were convicted by the trial court under Sections 323, 324, 325, 147,148 all read with Section149 of Indian Penal Code and under Section 135 of the Bombay Police Act.

       In Sessions Case No. 85 of 2005 in which the present appellants were accused, the trial court convicted and sentenced each of the twenty accused under Sections 302, 307, 326, 325, and 324 all r/w Section 149 IPC, The trial Court further convicted accused/appellant no.1 Pathubha Govindji under Section 27 of Arms Act.

       Criminal Appeal No. 1391 of 2007 and Criminal Appeal No.1394 of 2007 were filed by the convicts of Sessions Case No. 85 of 2003, and Criminal Appeal No. 1244 of 2007 was filed by the convicts of Sessions Case No. 53 of 2004, before the High Court. All the three appeals were decided by the High Court by common judgment challenged before us.

       The High Court partly allowed the appeals.

       Finding of the Court:

       The case falls under Exception 2, section 300 IPC.

       Result: Appeal partly allowed.