IMPORTANT POINT
Multiple stab wounds on the body of the deceased call for conviction of the accused u/s 302 IPC.

JUDGMEN T

Hemant Gupta, J.

The challenge in the present appeal is to an order passed by the High Court of Gujarat at Ahmedabad on 24.10.2008 maintaining conviction for offences under Sections 302 and 324 of IPC against the appellants for causing death of Bhura Govind and Lakha Arjan.

2. The prosecution case is that on 1st July 1987 at about 12 midnight in Village Prempara-Rampara, the appellants caused injuries to Bhura Govind and Lakha Arjan with spears etc and on account of grievous injuries inflicted, both of them died on the spot. The FIR was lodged at 7 AM on 2nd July 1987 and the appellants were arrested on 17th July 1987. The cause of occurrence is that the appellants were not giving right of way to the deceased. The complainant party had filed the civil suit in which injunction was granted in their favour. The appellants also lodged a cross case which is Sessions Case No. 97 of 1987.

3. After completion of investigations, the appellants were made to stand trial. The appellants have been convicted for life for offence under Section 302 but no separate punishment was inflicted for the offence under Section 324 IPC.

4. In the present appeal, the argument of learned counsel for the appellants is that the deceased and their accomplices, 9 in number, were the aggressors. The injuries have been inflicted on both the appellants. Such injuries have been proved by PW-10, Dr. Nikhilkumar Buch who was posted at Civil Hospital, Junagarh at the relevant time. The appellants have remained in hospital from 02.07.1987 to 17.07.1987. The appellants have received grievous injuries, while protecting the possession of their land, thus, they have acted in their right of private defence.

5. It is also argued in the alternative that the occurrence has taken place at the spur of the moment without any pre-meditation and that the appellants are not taken any advantage or acted in a cruel or unusual manner, therefore, the conviction of the appellants for the offences under Section 302 read with Section 34 IPC is not sustainable. In fact at best, an offence under Section 304 (Part II) can be said to have made out. The appellants have undergone more than 11 years of actual imprisonment, therefore, in the event the appellants are convicted for an offence under Section 304(Part II), they would be entitled to be released having completed the sentence which may be imposed as the maximum sentence is 10 years for an offence under Section 304(Part II).

6. The argument is based on the statement of PW-13, Murlidhar Vasu, the Investigating Officer. He deposed that the appellant No. 1 was lying at the spot and was bleeding. It is also argued that Vajibai, wife of appellant no. 1, has been examined as defence witness. She deposed that appellant no. 1 came home and informed her that 9 persons have assaulted both the appellants and it is she who telephoned the police about the occurrence. It is also argued that the cross case registered on the basis of complaint of the appellants was separately investigated and the trial conducted. Thus, the primary argument is that the occurrence having taken place at the spur of the moment, the conviction of the appellants for an offence under Section 302 IPC is not maintainable.

7. The learned counsel for the appellants relies upon the judgment of this Court in Jangir Singh Vs. State of Punjab [Criminal Appeal No. 2499 of 2009 decided on 31.10.2018] wherein the right of private defence was found to be valuable right and that this right should not be construed narrowly.

8. Before we consider the argument raised by learned counsel for the appellants, injuries received by appellant no. 1 (Ex.12), who was examined on 02.07.1987 at 5.15 AM by PW-10-Dr. Nikhilkumar Buch, are as under:

“D/E (1) CLW on central part of head 21/2”X1/2”X up to bone deep vertical.

(2) Incise wound on forearm back middle part 1”X1/4”X up to muscle deep oblique.

(3) Incise wound on upper part of Lt foreman back ¾”X1/4”X up to bone deep vertical.

(4) CLW on