Madan & Ors vs State Of M.P

Madan and Ors. ...Appellants

versus

State of Madhya Pradesh ...Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division

Bench of Madhya Pradesh High Court, Indore Bench

upholding the conviction of the appellants for offence

punishable under Section 302 read with Section 149 and Section 323 read with Section 149 of the Indian Penal Code,

1860 (in short the `IPC'). Each of the appellants was sentenced

to undergo RI for life and to pay a fine of Rs.1,000/- with

default stipulation.

3. The prosecution case as unfolded during trial is as

follows:

In the intervening night of 3rd and 4th July, 1991 at about

12.00 in village Khandakhedi Kishanlal (hereinafter referred to

as the `deceased'), his wife Sampatbai and daughter

Premlatabai were sleeping inside their house. At that moment

appellants and deceased accused Jalu @ Jalamsingh and

juvenile accused Jeevan reached at their house. They broke

open the wooden door, while abusing the inmates and reached

in the courtyard. They told deceased Kishanlal that they

would not permit him to take his she-buffallows from their

field and asked as to why deceased made a complaint in

Tehsil/Revenue Court. They also threatened to eliminate him.

While saying all these, appellants Madan and Kamal caught

2 hold both the hands of Kishanlal and threw him near the wall,

thereafter assaulted him by lathi. Sampatbai, wife of deceased

Kishanlal (PW-2) cried for help. She and her daughter

Premlata (PW-1) tried to save deceased but both were

assaulted by lathi. Umraobai (PW-3) was assaulted by the

deceased accused Jalu @ Jalamsingh when she tried to rescue

the deceased. Babulal (PW-7) after hearing the cry reached

over there and he was also assaulted by accused persons.

When Ramsingh (PW-8) and Premsingh (PW-9) arrived,

appellants fled away. The deceased fell unconscious and died

on the way to police station. Premlata (PW-1), Sampatbai,

Umraobai, Babulal, Premsingh alongwith village Chowkidar

Anarsingh reached at the police station at 4.00 a.m. and

lodged the report (Ex.P-1) which was recorded by SHO (PW-12)

Nandlal. The injured persons were sent for medical

examination and treatment. Their medical reports are Ex.P-24

to P-28. After preparation of inquest report (Ex.P-11) dead

body of Kishanlal was sent to hospital and postmortem was

conducted by Dr. A.S. Rana (PW-13) who issued postmortem

report (Ex.P-29). Investigating Officer prepared spot map

3 (Ex.P-2) and also effected seizure of blood stained earth,

controller earth, pieces of sticks vide Ex.P-3 from the spot.

Through seizure memo (Ex.P-4) pieces of bangles, pieces of

glass of watch and roof tiles were seized. Patvari Govindram

(PW-6) prepared the spot map (Ex.P-10). After arrest, on

disclosure statement of the accused persons lathis were seized

and seized articles were sent with covering letter (Ex.P-23) to

FSL, Sagar. Dr. Rana also gave report (Ex.P-30) after

examination of lathis seized from the accused persons. On

completion of the investigation charge sheet was filed before

the learned JMFC, Sanwer against the appellants and

deceased accused Jalu @ Jalam and juvenile accused Jeevan

was produced and charge sheeted before the juvenile Court as

directed by the trial Court because he was found below 16

years of age. During the course of trial, accused Jalu @

Jalamsingh died, therefore, case against him was closed.

The appellants denied the charges and pleaded

innocence. They examined three witnesses in defence whereas

prosecution examined 15 witnesses and adduced 31

4 documents in evidence. The trial Court found the appellants

guilty, convicted them as aforenoted.

Before the High Court the stand taken was to the

exercise of the right of private defence. It was pointed out that

the deceased and prosecution witnesses were aggressors. In

any event, when the appellants had assaulted, then in right of

private defence they are entitled to get the benefit of exception

in terms of Sections 96 and 97 IPC. The High Court turned

down the stand and upheld the conviction.

4. In support of the appeal, learned counsel for the

appellants submitted that most of the injuries were on non

vital parts. It has been established that injuries have been

sustained by the appellants in the same incident. The High

Court had exercised the appellate power under Section 386 (b)

(ii) of the Code of Criminal Procedure, 1973 (in short the

`Code') and had altered the finding of the trial Court in para 27

that the appellants were injured in the same incident in which

the deceased and injured witnesses were assaulted and it was

5 held that as per own saying by the defence the appellants

sustained injuries at the house of the appellant-Kamal. In

essence, it was pointed out that the trial Court and the High

Court should have accepted the plea of exercise of right of

private defence.

5. Learned counsel for the respondent-State on the other

hand submitted that there was injury on the head though

there was no fracture and the rest were on non vital parts of

the body. Nevertheless, even according to own saying of the

accused appellants, there was no question of exercise of right

of private defence.

6. A plea of right of private defence cannot be based on

surmises and speculation. While considering whether the right

of private defence is available to an accused, it is not relevant

whether he may have a chance to inflict severe and mortal

injury on the aggressor. In order to find whether the right of

private defence is available to an accused, the entire incident

must be examined with care and viewed in its proper setting.

6 Section 97 IPC deals with the subject-matter of right of private

defence. The plea of right comprises the body or property (i) of

the person exercising the right; or (ii) of any other person; and

the right may be exercised in the case of any offence against

the body, and in the case of offences of theft, robbery, mischief

or criminal trespass, and attempts at such offences in relation

to property. Section 99 IPC lays down the limits of the right of

private defence. Sections 96 and 98 IPC give a right of private

defence against certain offences and acts. The right given

under Sections 96 to 98 and 100 to 106 IPC is controlled by

Section 99 IPC. To claim a right of private defence extending

to voluntary causing of death, the accused must show that

there were circumstances giving rise to reasonable grounds for

apprehending that either death or grievous hurt would be

caused to him. The burden is on the accused to show that he

had a right of private defence which extended to causing of

death. Sections 100 and 101, IPC define the limit and extent

of right of private defence.

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7. Sections 102 and 105, IPC deal with commencement and

continuance of the right of private defence of body and

property respectively. The right commences, as soon as a

reasonable apprehension of danger to the body arises from an

attempt, or threat, or commit the offence, although the offence

may not have been committed but not until that there is that

reasonable apprehension. The right lasts so long as the

reasonable apprehension of the danger to the body continues.

In Jai Dev v. State of Punjab (AIR 1963 SC 612), it was

observed that as soon as the cause for reasonable

apprehension disappears and the threat has either been

destroyed or has been put to route, there can be no occasion

to exercise the right of private defence.

8. The above position was highlighted in Rizan and Another

vs. State of Chhattisgarh, through the Chief Secretary, Govt. of

Chhattisgarh, Raipur, Chhatttisgarh (2003 (2) SCC 661), and

Sucha Singh and Anr. v. State of Punjab (2003 (7) SCC 643)

and Raj Pal and Ors. v. The State of Haryana (2006 (9) SCC

678).

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9. The High Court observed that according to the appellants

incident occurred in two difference places in difference phases

and in the incident of assault to the deceased and the

witnesses they were not present and they sustained injuries

caused by the deceased and some of the injured witnesses at

the house of Kamal. The High Court has in part accepted the

stand of the appellants that they were exercising the right of

private defence, but at the same time the evidence also shows

that the appellants committed criminal trespass. Therefore,

they cannot claim the benefit of exception of having acted in

exercise of right of private defence.

10. On a combined reading of the judgments of the trial

Court and the High Court it is clear that the evidence is to the

effect that the accused appellants were upto some stage

exercising the right to protect and defend their properties. But

thereafter they exceeded the right. Therefore, this appears to

be a case where instead of convicting the appellants under

Section 302 IPC it would be proper to convict the appellants

9 for offence punishable under Section 304 Part I, IPC.

Custodial sentence of 10 years would meet the ends of justice.

11. The appeal is allowed to the aforesaid extent.

..................................J. (Dr. ARIJIT PASAYAT)

.................................J. (P. SATHASIVAM)

New Delhi, July 11, 2008

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