Point of Law: Right of private defence - Basic principle underlying doctrine of right of private defence is that when an individual or his property is faced with a danger and immediate aid from State machinery is not readily available, that individual is entitled to protect himself and his property - Right of private defence is available only to one who is suddenly confronted with necessity of averting an impending danger not of self creation.

JUDGMENT :

N.R. BORKAR, J.

1. The Appellant in Criminal Appeal No. 256/2012 was an accused before the trial Court in Sessions Case No. 140 of 2008. In the said Sessions Case, the accused was tried for the offence punishable under Section 307 of the Indian Penal Code (for short “IPC”) and Section 30 of the Indian Arms Act (for short “Arms Act”). By the Judgment and order dated 1st February, 2012, the trial Court acquitted the accused of the offences punishable under Section 307 of the IPC and under Section 30 of the Arms Act. The trial Court instead convicted the accused for the offence punishable under Section 326 of the Indian Penal Code and sentenced him to suffer Rigorous Imprisonment for three years and to pay fine of Rs. 1 Lakh and in default of payment of fine to suffer further imprisonment of six months.

2. Criminal Appeal No. 256 of 2012 is filed by the accused challenging his conviction for the offence punishable under Section 326 of the IPC. Whereas, Criminal Appeal No. 740/2012 and 741/2012 are filed by the State and victim respectively against acquittal of the accused for the offence punishable under Section 307 of the IPC and under Section 30 of the Arms Act.

3. This court, while admitting the Appeal filed by the accused has passed the following order on 13th March, 2012:

“Considering the nature of the offence and the manner in which it is committed, I am of the considered opinion that, the sentence of three years rigorous imprisonment imposed on the appellant for the offence punishable under Section 326 of I.P.C. is grossly inadequate. Therefore, the appellant is called upon to show cause as to why the substantive sentence imposed on him should not be enhanced.”

4. Suo Motu Petition No. 1 of 2021 came to be registered pursuant to above said order of this Court.

5. Considering the fact that all the matters take exception to one and the same Judgment, they were heard together and are being disposed of by this common Judgment.

6. The allegations against the accused are that he fired six gun shots at his elder sister PW-1 Ms. Lorna D’souza and attempted to kill her.

7. The accused and PW-1, were though residing in the same flat i.e. Flat No. 71, Sayonara Building, Cuffe Parade, Mumbai, however, they were residing separately as their relations were strained due to property dispute. The incident took place in the intervening night of 27.10.2007 and 28.10.2007 at about 3.00 to 3.30 a.m.

8. According to PW-1 on 27.10.2007 she alongwith her younger sister PW-4 Laura and daughter of PW-4, who were residing with her, had gone to Copper Chimney restaurant for dinner. At about 12.00 a.m. they finished their dinner and then her younger sister PW-4 Laura dropped her at Hotel Indus, Colaba at about 12.30 a.m. and then she went home.

9. According to PW-1 approximately at about 3.00 a.m. she came home by taxi and saw that her Maruti Swift car was parked outside of the building on the road. She then went to the parking area and saw that another Maruti Car was parked at the place where she used to park her car. She, therefore, enquired with PW-2 Rajkishor Rawat watchman of the building as to who had parked the car at the place of her car parking. On inquiry PW-2 told her that the said car is of accused friend Nitasha. She told PW-2 to ask the accused to remove the said car from the parking area. According to PW-1 after 10 minutes, the accused came to the parking place and started abusing her in filthy language. The accused, thereafter, hit her by his head and started pushing her. The accused had then asked PW-2 to call police. Accordingly, PW-2 went to make phone call to the police. According to PW-1 as the accused was still abusing her, she got scared and started going away from that place. According to PW-1, at that juncture, the accused fired six gun shots at her from the revolver, which he was carrying. Due to gun shots, she sustained injuries to her chest and right hand and fell down. According to PW-1 inspite of that the accused kept pul