Back
2014 Supreme(All) 3756
ALLAHABAD HIGH COURT
Amar Saran, Vijay Lakshmi, JJ.
Sudhir & Others - Appellant
Versus
State - Respondent
Criminal Appeal No. 2394 of 1985
Decided On : 28-08-2014
For the Appellants : A.B.L.Gaur
For the Respondent: Dga, Ajay, Vashistha, G.S. Sen, K.D. Awasthi
Headnote:
SUDHIR, SUDHAKAR AND SUNIL KUMAR - RIGHT OF PRIVATE DEFENCE - SECTION 302 READ WITH 134 IPC - SUMMARY
Fact of the Case:
The deceased Dharam Dev @ Munna, S/o complainant Prem Narain and, the appellants Sudhir, Sudhakar and Sunil Kumar were the residents of the same locality in district Etah. Appellants Sudhir and Sudhakar are the real brothers and Sunil Kumar is their cousin brother (Mausera bhai). According to prosecution case, the deceased Dharam Dev @ Munna had advanced some money by way of loan to the accused appellant Sudhir as a financial aid for opening and running a hotel. However, appellant Sudhir was not returning the loan on some pretext or the other despite several demands made by deceased Dharam Dev. It is alleged that two days prior to the present occurrence, at about 8.00 or 9.00 a.m., deceased Dharam Dev had gone to the hotel of Sudhir and had demanded back his money from the appellant Sudhir publicly. Some hot words and abuses had been exchanged between the two and Dharam Dev had slapped accused Sudhir during such altercation. The aforesaid incident as per prosecution version, is the motive behind the present occurrence.
Finding of the Court:
The court found that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. The court also found that the appellants had acted in the exercise of the right of private defence and that their actions were not excessive. The court convicted the appellants of the offence of culpable homicide not amounting to murder under Section 304(1) read with 34 IPC and sentenced them to five years imprisonment.
Issues: 1. Whether the prosecution had proved its case against the appellants beyond reasonable doubt. 2. Whether the appellants had acted in the exercise of the right of private defence. 3. Whether the appellants' actions were excessive.
Ratio Decidendi: The court held that the prosecution had failed to prove its case against the appellants beyond reasonable doubt. The court also held that the appellants had acted in the exercise of the right of private defence and that their actions were not excessive. The court relied on the following legal principles: * The burden of proof lies on the prosecution to prove its case beyond reasonable doubt. * The right of private defence is a well-recognized right in civilized countries. * The right of private defence is not punitive but preventive. * The right of private defence is conferred on the aggressee and not on the aggressor. * The right of private defence is used as a shield and not as a weapon of offence. * The right of private defence is defensive in nature and is based on the principle that every man has been endowed with certain amount of self reliance and will not as such flee away when he is attacked by criminals.
Final Decision: The appeal was partly allowed. The conviction and sentence of the appellants was modified to the extent that their conviction and sentence for life imprisonment as awarded by the lower court was modified to the imprisonment for five years. The fine imposed by the Sessions Court is to be remained as the same. It shall be deposited by the appellants within one month if not earlier deposited by them. In default of payment of fine, they have to suffer imprisonment of 6 months in addition to the imprisonment of 5 years.
Mrs. Vijay Lakshmi, J.
Challenge in this appeal is to the judgement passed by Special Judge, E.C. Act, Etah in Session Trial No. 156 of 1982 whereby the appellants namely Sudhir, Sudhakar and Sunil Kumar were held guilty, convicted and sentenced under section 302 read with 134 IPC with imprisonment for life. A fine of Rs. 2000/- was also imposed against each of them, in default of which, they were required to suffer a further period of rigorous imprisonment for six months.
2. We have heard Shri A.B.L. Gaur, learned Senior Advocate on behalf of the appellants and Sri Akhilesh Singh, learned Government Advocate assisted by Sri R.K. Singh and Sri Anand Tewari appearing for the State and have carefully gone through the records.
3. The prosecution version in nutshell is as follows: -
The deceased Dharam Dev @ Munna, S/o complainant Prem Narain and, the appellants Sudhir, Sudhakar and Sunil Kumar were the residents of the same locality in district Etah. Appellants Sudhir and Sudhakar are the real brothers and Sunil Kumar is their cousin brother (Mausera bhai). According to prosecution case, the deceased Dharam Dev @ Munna had advanced some money by way of loan to the accused appellant Sudhir as a financial aid for opening and running a hotel. However, appellant Sudhir was not returning the loan on some pretext or the other despite several demands made by deceased Dharam Dev. It is alleged that two days prior to the present occurrence, at about 8.00 or 9.00 a.m., deceased Dharam Dev had gone to the hotel of Sudhir and had demanded back his money from the appellant Sudhir publicly. Some hot words and abuses had been exchanged between the two and Dharam Dev had slapped accused Sudhir during such altercation. The aforesaid incident as per prosecution version, is the motive behind the present occurrence.
4. It is said that on the fateful day i.e. 18.1.1981, at about 8: 30 p.m., when Dharam Dev was sitting in his house along with his father (complainant Prem Narain) and two sisters Km. Saroj and Madhu, after finishing some repair works on his motorcycle, suddenly appellant Sudhir having a dagger (Chhura) in his hand and appellants Sudhakar and Sunil Kumar, each armed with a knife stormed into his house through the main gate. They scolded Dharam Dev by saying that he has humiliated them publicly in the market by making the demand to return the loan and for that they would teach him a lesson. After that all the appellants attacked on Dharam Dev with Chhura and knives they were carrying. Dharam Dev in order to rescue himself ran towards courtyard and then towards his personal room situated in the north side after crossing another courtyard but immediately he returned towards south in the first courtyard. During all this process, the appellants were throughout chasing him and were giving chhura and knife blows to him. The deceased also grappled with them. During the scuffle and in the process of snatching away the chhura and knife, the appellants also sustained injuries in their hands. Ultimately Dharam Dev fell down in the southern verandah and succumbed to his injuries on the spot. After the occurrence, all the appellants managed to escape from the place of occurrence running to the roof through the staircase and thereafter jumping from the roof into Khandhar (ruins) of Shankar lal. All the appellants having prior acquaintance with the family members of the deceased were seen and identified by them in the moonlight and in the light of electric bulbs lighting everywhere at that time in the house.
5. The appellants were also seen and identified with dagger and knives having blood stains on those weapons while they were fleeing from the Khandhar of Shankar Lal by witnesses Hundi Lal, Mahendra, Ashok, Munna Lal and others. These witnesses then immediately rushed inside the house of complainant Prem Narain where they saw the dead body of Dharam Dev lying in the southern verandah in a pool of blood having stabbed wounds all over his body.
