SUPREME COURT OF INDIA
S. Murtaza Fazal Ali and O. Chinnappa Reddy, JJ.
Patil Hari Meghji and another - Appellant
versus
State of Gujarat - Respondent
Criminal Appeals Nos. 4 and 5 of 1977
Decided on 10th February, 1983

IMPORTANT POINT
Nature of injuries on the deceased victim may indicate that no right of private defence exists with the accused.

Headnote:Indian Penal Code, 1860, Sections 302/34 and 302/114, 300, Exception (ii)-Plea of private defence when not sustainable concealment of actual report if any-When not probable or meaningless-Exceeding the right of private defence - Effect of –

       Facts-

        A dispose across out of a chronic land dispute between the accused and the deceased party. About three weeks before the present occurrence, one of the accused had threatened to kill the deceased and his partymen. This matter was reported to the Police Patel on 28th April, 1975. The occurrence is said to have taken place near the field of Hari Khoda. The deceased along with his companions and his relations while going to their field for cultivating the same, the accused party, variously armed engaged themselves with whatever weapons they had in the cart and inflicted some injuries on the person of the accused. As a result of the attack by the accused three persons received fatal injuries. Out of them two died on the spot and the third died soon thereafter. One Bhika Bhimji rushed to the police patel to give information. On the way he met P.W. 12 whom he told as to how the injuries were caused to the three deceased persons as a result of the attack made by the accused. Perhaps by that time the third deceased Kanu had not breathed hi last. A report was prepared by P.W. 10 which was sent to the Police Station and on the basis of that report the present F.I.R. was lodged and the investigation proceeded.

       Procedural Facts-

       The Sessions Judge acquitted accused 2 and 3 completely but convicted accused Nos. 1 and 4 under section 304(1) and sentenced them to 7 years' R.I. on the finding that these two accused had exceeded the right of private defence.

       In Appeal, the High Court reversed the acquittal of accused Nos. 1, 2, 3 and 4 into conviction under section 302/34 and 302/114 I.P.C. and sentenced them to imprisonment for life.

       In appeal by special leave to the Supreme Court, the following questions arose:

       Questions-

       1. Whether there is no evidence regarding to the actual manner in which the occurrence took place and as a result it could not be said that the plea of private defence taken by the accused was not sustainable? - (No)

       2. Was there some other F.I.R. which the prosecution had deliberately concealed as appears from the evidence of P.W. 2 that he made a report to the Police Patel P.W. 10 and that report was written and signed by P.W. 2?

       3. What is the effect of nature of injuries caused to the victim and the accused that tell upon the right of private defence?

       Decision-

       The Supreme Court upheld the judgment of the High Court and dismissed the appeals.

       Reasons-

       1. So far as the first circumstance is concerned the learned Sessions Judge seems to have misread the evidence of P.Ws. 2 and 3. In their evidence they have clearly stated the occasion, the motive and the genesis of the occurrence as also the manner in which it took place. They have given a careful description as to how the deceased and his party had proceeded to the field and before reaching there they were engaged by the respondents who started altercating with them. This was really the origin of the occurrence and the Sessions Judge was not right in saying that the origin of the occurrence could be something else. This ground given by the Sessions Judge does not appear to be tenable. (Para 6)

       2. The F.I.R. was lodged within an hour or two of the occurrence itself. It is obvious that the broad statement of P.W. 2 to P.Ws. 9 and 10 removes the very basis of the charge that some F.I.R. was written but concealed because the original F.I.R. did not mention the name of the accused numbers 2 and 3. This is also a reason based on speculation. There is no doubt that accused Nos. 2 and 3 were injured and their injuries clearly explained by P. Ws. 2 and 3 who had stated that these persons also participated in the occurrence and in the course of which they were assaulted in exercise of the right of private defence. In these circumstances therefore the alleged non-production of the complainant does not detract from the prosecution case. (Para 7)

       3. The nature of the injuries on the deceased persons clearly show that there could be no question of plea of private defence. The manner of the assault, the consequence of which was the death of three persons cannot for moment give rise to a justification for pleading a right of private defence. Moreover Exception (ii) to Section 300 clearly enjoins that there cannot be any question of exceeding the right of private defence where the accused causes more harm than it is necessary for the purpose of his defence. (Para 8)