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1976 Supreme(Bom) 193
IN THE HIGH COURT OF BOMBAY
R.L. Aggarwal, J.
Ananda D. Patil another..... Appellants.
Versus
State of Maharashtra..... Respondent.
Criminal Appeal No. 588 of 1975, decided on 28/29-9-1976.
Advocates appeared :
V.P. Tipnis, for appellants.
H.A. Solkar with V.N. Damle, P.P., for State.
The right of private defence of body arises when an aggressor has stuck or reasonable apprehension of a grievous hurt arises depending on the facts and circumstances of each case. But such a right in no case extends to the inflicting to more harm than it is necessary to inflict for the purpose of defence. Such a right allows to the voluntary causing of death or of any other harms to the assailant if the offence which occasions the exercise of the right by any description mentioned in the six clauses to section 100 I.P.C.
Headnote:
CRIMINAL APPEAL - SECTION 452, 307, 324, 325, 326, 323 OF IPC - HOUSE TRESPASS, ATTEMPT TO COMMIT MURDER, VOLUNTARILY CAUSING HURT, RIGHT OF PRIVATE DEFENCE - EVIDENCE ACT, SECTION 100 - RIGHT OF PRIVATE DEFENCE OF BODY - INTERPRETATION - SCOPE AND APPLICABILITY - CONDITIONS - CIRCUMSTANCES GIVING RISE TO RIGHT OF PRIVATE DEFENCE - REASONABLE APPREHENSION OF GRIEVOUS HURT - EXTENT OF RIGHT - VOLUNTARILY CAUSING MORE HARM THAN NECESSARY - INTERPRETATION - SCOPE AND APPLICABILITY - CONDITIONS - EVIDENCE ACT, SECTION 6 - PROBATION OF OFFENDERS ACT - INTERPRETATION - SCOPE AND APPLICABILITY - CONDITIONS - PROOF OF AGE - NATURE OF OFFENCE - CIRCUMSTANCES OF CASE - SENTENCING - PRINCIPLES - APPELLATE COURT'S INTERFERENCE WITH TRIAL COURT'S DISCRETION - FACTORS TO BE CONSIDERED - REDUCTION OF SENTENCE - JUSTIFICATION.
Fact of the Case:
The appellants were convicted of offences punishable under section 452 read with section 34 and section 307 read with section 34 of the Indian Penal Code. Accused No. 1 was separately charged for the offence under section 324 of the Indian Penal Code. Accused No. 2 was separately charged for the offences under sections 324 and 326 of the Indian Penal Code. Accused Nos. 3 and 4 were separately charged under section 325 and 323 of the Indian Penal Code respectively.
Finding of the Court:
The prosecution evidence of both types, one of injured witnesses and the other non-injured eye-witnesses is convincing and satisfactory and the same establishes the prosecution case. In spite of the fact that the injured eye-witnesses are closely related, their evidence is trustworthy and dependable. They are corroborated by the other set of non-injured eye-witnesses. The medical evidence is also consistent with the oral account. I have therefore no hesitation to accept their evidence entirely.
Issues: 1. Whether the appellants were guilty of the offences charged? 2. Whether the appellants were entitled to the benefit of the right of private defence? 3. Whether the appellants were entitled to the benefit of the Probation of Offenders Act? 4. Whether the sentences imposed on the appellants were excessive?
Ratio Decidendi: 1. The prosecution succeeded in establishing the charges against the appellants to the hilt and, therefore, their conviction must be upheld. 2. The circumstances of the case did not give rise to a genuine and reasonable apprehension to the appellants that they were placed in circumstances and fear in which it could be said that they were anticipating grievous hurt and as such there is no question of considering the point of their exceeding their right of private defence by causing more harm than the circumstances permitted. 3. The benefit of the Probation of Offenders Act should not be handed out in cases of voluntarily causing hurt by dangerous weapons and means nor for house trespass where the accused enter the place after having made preparation for causing hurt or for assaulting the dweller as in the present case. 4. The sentences imposed on the appellants were excessive and were reduced by the appellate court.
Final Decision: The appeal was partly allowed. The conviction of the appellants was confirmed, and their sentences were reduced.
2. The learned Sessions Judge, Jalgaon by his judgement and order dated 27th June, 1975 convicted accused No. 1 under section 452 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs. 200/-, in default to suffer further rigorous imprisonment for one month. Accused No. 1 was further convicted under section 324 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for two years and to pay a fine of Rs. 500/-, in default to suffer further rigorous imprisonment for two months. Accused No. 2 was convicted under section 452 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default to suffer further rigorous imprisonment for one month. He was also convicted under section 324 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default to suffer further rigorous imprisonment for one month. Accused Nos. 3 and 4 were convicted under sections 452 and 324 read with section 34 of the Indian Penal Code and instead of sentencing them at once to any punishment, they were released under section 4(1) of the Probation of Offenders Act, 1958. All the accused were acquitted of the rest of the charges brought against them. Substantive sentences of accused Nos. 1 and 2 was ordered to run concurrently.
3. Accused Nos. 1, 2 and 3 are brothers and accused No. 4 is their distant relation. All of them hail from village Lasure and so do prosecution witnesses. The map (Ex. 5) shows the location of the houses of the accused and the prosecution witnesses. Most of them are living near to each other and can, therefore, be loosely described as neighbours.
4. The prosecution case reveals that the relations between accused No. 1 and Dashrath (P.W. 3) were strained, on Madhavrao was the Sarpanch of the village and during his absence (P.W. 3), was officiating as a Sarpanch. Accused No. 1 belonged a function and in that connection cement platform had been put up on which the name of Madhavrao, Sarpanch, was inscribed. On 29th March, 1973 (P.W. 3), noticed that the name of Madhavrao was defaced with tar. In this connection (P.W. 3), made an inquiry and learnt that accused No. 1 was responsible for the mischief. A report (Ex. 9) was made by (P.W. 3) to Pimpalgaon Police Station and the Police made inquiries on the basis of that report. This seemed to have annoyed accused No. 1. A few days after the lodging of the report, while (P.W. 3) was sitting on a stone with Ramzan (P.W. 11), in front of the house of Ramzan accused No. 1 came there from the said of the house of (P.W. 3) and started abusing (P.W. 3). Accused No. 1 said, “Bhadvya, why you gave a report against me ? You are witness against me in the two Chapter Casses”. So saying, accused No. 1 held (P.W. 3) by his shirt near the throat. Ramzan intervened and separated them. (P.W. 3) in the circumstances apprehended quarrel. He therefore, got up and went towards his house. At that time, accused No. 1 again threatened (P.W. 3) saying, “Bhadvya, how for you will go ? This night I am going to kill you”. Hearing this (P.W. 3) lost courage and went home quietly. This incident occurred at 6.00 p.m.
5. The further description of the prosecution case can be narrated in the words of (P.W. 3) himself :
“I came home. I drew the
