IMPORTANT POINT
Shooting at a vital part of the body of deceased, even in private defence, will fall under Exception II of section 300, IPC.

JUDGMENT :

N.V. Ramana, J.

1. This appeal arises out of the impugned judgment dated 07.04.2008, passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 160DBA/1994, whereby the High Court has reversed the judgment of acquittal passed by the Sessions Judge, Faridkot dated 14.05.1993, and convicted the appellant-accused under Section 302 IPC and Section 27 of the Arms Act.

2. The Sessions Judge, Faridkot vide Judgment dated 14.05.1993 acquitted the appellant from the offences punishable under Section 302 I.P.C. and Section 27 of the Arms Act on the ground that the appellant fired gunshot at the deceased in exercise of his right to private defence of his body. Thus, he was exonerated from the liability under Section 302 of IPC. However, on appeal, the High Court reversed the findings of the Sessions Judge on the ground that the right to private defence at the part of the appellant was not made out. Aggrieved by the Judgment of the High Court, this appeal is preferred under Section 379 of the Code of Criminal Procedure, 1973.

3. Facts of the case in a nutshell are such that the incident in question took place on 05.06.1991 at around 7.30 P.M. wherein the appellant shot down Jaswant Singh (hereinafter referred to as “the deceased”) by his Self Loading Rifle of Bore 303. The appellant and the deceased were working together as Punjab Home Guard Volunteers. The incident took place when the deceased demanded Rs.100/from the appellant, which was borrowed by the appellant previously. The appellant got enraged due to the fact that the borrowed money was demanded in front of the other Punjab Home Guard colleagues and it was insulting for the appellant. The appellant had an altercation with the deceased for around 15 minutes, pursuant to which the appellant fired at him and consequently, he died.

4. Learned counsel for the appellant-accused vehemently contended that the High Court has reversed the well-reasoned and detailed judgment of acquittal of the trial court by re-appreciating evidence in a different manner and taking a different view. According to the learned counsel, it was a clear case of right to private defence, thus, sentencing under Section 302 IPC by the High Court is unwarranted.

5. On the other hand, learned counsel for the respondent-State submitted that the present appeal by the appellant is not based on any cogent reasons rather the same has been filed on surmises and conjectures. Further, it has also been submitted that all the material evidence and testimonies of relevant witnesses viz., P.W.3 and P.W.4 have been taken into consideration, in the well-reasoned judgment of the High Court and the same does not call for interference by this Court.

6. After perusing the material placed before this Court, we are of the considered view, that the conviction by the High Court is solely based on the evidence of P.W.3 (ASI Sukhdev Singh), who is a witness to the incident. Therefore, evidence of P.W.3 calls for the examination by this Hon’ble Court.

7. The evidence of PW3 clarifies that the deceased had 303 bore rifle with him at the time of occurrence. So also, the accused had the rifle. PW3 was standing at a distance of about 60 feet from the appellant and the deceased where the incident has taken place. It is admitted by him in cross-examination that he looked at the accused and the deceased only when he heard the sound of gunshot. He did not notice as to who was the aggressor and as to whether the altercation between the accused and the deceased had taken place or not. Looking at the trend of answers given by PW3 in the cross-examination, it is clear that he did not see as to how the incident started and continued. Thus, there can be no categorical deduction from the evidence of PW3 that the accused fired at the deceased with premeditation.

8. On the other hand, the evidence of PW4 specifies that the deceased had aimed a rifle at the accused, obviously because of an altercation between them, pursuant to which