Judgment Date  31 Oct 2018                                                                                         Click Here To Read Digest



1.This appeal arises out of the impugned judgment dated
07.04.2008, passed by the High Court of Punjab and Haryana at
Chandigarh in Criminal Appeal No. 160DBA/
1994, whereby the
High Court has reversed the judgment of acquittal passed by the
Sessions Judge, Faridkot dated 14.05.1993, and convicted the
under Section 302 IPC and Section 27 of the
Arms Act.

2. The Sessions Judge, Faridkot vide Judgment dated
14.05.1993 acquitted the appellant from the offences punishable
under Section 302 I.P.C. and Section 27 of the Arms Act on the
ground that the appellant fired gunshot at the deceased in
exercise of his right to private defence of his body. Thus, he was
exonerated from the liability under Section 302 of IPC. However,
on appeal, the High Court reversed the findings of the Sessions
Judge on the ground that the right to private defence at the part
of the appellant was not made out. Aggrieved by the Judgment of
the High Court, this appeal is preferred under Section 379 of the
Code of Criminal Procedure, 1973.

3. Facts of the case in a nutshell are such that the
incident in question took place on 05.06.1991 at around 7.30
P.M. wherein the appellant shot down Jaswant Singh (hereinafter
referred to as “the deceased”) by his Self Loading Rifle of Bore
303. The appellant and the deceased were working together as
Punjab Home Guard Volunteers. The incident took place when
the deceased demanded Rs.100/from
the appellant, which was
borrowed by the appellant previously. The appellant got enraged
due to the fact that the borrowed money was demanded in front
of the other Punjab Home Guard colleagues and it was insulting
for the appellant. The appellant had an altercation with the
deceased for around 15 minutes, pursuant to which the appellant
fired at him and consequently, he died.

4. Learned counsel for the appellantaccused
vehemently contended that the High Court has reversed the wellreasoned
and detailed judgment of acquittal of the trial court by reappreciating
evidence in a different manner and taking a different
view. According to the learned counsel, it was a clear case of
right to private defence, thus, sentencing under Section 302 IPC
by the High Court is unwarranted.

5. On the other hand, learned counsel for the respondentState
submitted that the present appeal by the appellant is not
based on any cogent reasons rather the same has been filed on
surmises and conjectures. Further, it has also been submitted
that all the material evidence and testimonies of relevant
witnesses viz., P.W.3 and P.W.4 have been taken into consideration, in the wellreasoned
judgment of the High Court
and the same does not call for interference by this Court.

6. After perusing the material placed before this Court, we
are of the considered view, that the conviction by the High Court
is solely based on the evidence of P.W.3(
ASI Sukhdev Singh),
who is a witness to the incident. Therefore, evidence of P.W.3
calls for the examination by this Hon’ble Court.

7. The evidence of PW3
clarifies that the deceased had
303 bore rifle with him at the time of occurrence. So also, the
accused had the rifle. PW3
was standing at a distance of about
60 feet from the appellant and the deceased where the incident
has taken place. It is admitted by him in crossexamination
he looked at the accused and the deceased only when he heard
the sound of gunshot. He did not notice as to who was the
aggressor and as to whether the altercation between the accused
and the deceased had taken place or not. Looking at the trend of
answers given by PW3
in the crossexamination,
it is clear that
he did not see as to how the incident started and continued.
Thus, there can be no categorical deduction from the evidence of
that the accused fired at the deceased with premeditation.

8. On the other hand, the evidence of PW4
specifies that
the deceased had aimed a rifle at the accused, obviously because
of an altercation between them, pursuant to which the accused
also used his gun to fire at the deceased suddenly, without any
premeditation. The evidence of PW4
corroborates the defence
taken by the accused as found in his statement under Section
313 of the Cr.P.C.

9. The evidence of PWs 3 and 4 collectively would show
that though the incident has taken place because of the gunshot
fired by the accused towards the deceased and the deceased lost
his life, but the act of the accused will fall under Exception II to
Section 300 of the IPC, in as much as the fire by the accused was
due to the aforementioned fact of the deceased pointing gun
towards the accused, i.e., because of the threat perception
created by the deceased in the mind of the accused.

10. Before proceeding any further, it is essential to putforth
things that are to be considered by the Courts, while giving
benefit of right to private defence to the accused, as per Exception
II to Section 300 of IPC, to determine the ‘quantum’ of this right.
This Court in the case of Vidhya Singh v. State of Madhya
,-(1971) 3 SCC 244 observed that“

7. … The right of selfdefence
is a very valuable right. It has a social purpose. That right should
not be construed narrowly.”

Further, in the case of James Martin v. State of Kerala,-(2004) 2 SCC 203
following observations were made by this Court“

18. … Situations have to be judged from the subjective
point of view of the accused concerned in
the surrounding excitement and confusion of the
moment, confronted with a situation of peril and
not by any microscopic and pedantic scrutiny. In
adjudging the question as to whether more force
than was necessary was used in the prevailing circumstances
on the spot, it would be inappropriate,
as held by this Court, to adopt tests by detached
objectivity which would be so natural in a courtroom,
or that which would seem absolutely necessary
to a perfectly cool bystander.
The person facing
a reasonable apprehension of threat to himself
cannot be expected to modulate his defence step by
step with any arithmetical exactitude of only that
much which is required in the thinking of a man in
ordinary times or under normal circumstances.”

Similarly, in the case of Darshan Singh v. State of Punjab,-(2010) 2 SCC 333. this
Court went further and gave few parameters to adjudge the
exercise of right to private defence in following terms

“56. In order to find out whether the right of private
defence is available or not, the injuries received by
the accused, the imminence of threat to his
safety, the injuries caused by the accused and the
circumstances whether the accused had time to
have recourse to public authorities are all relevant
factors to be considered.”

(emphasis supplied)

11. Further, it is a settled law that the right to private
defence cannot be claimed by the accused, if disproportionate
harm has been caused, while defending himself or any other
person. However, if the accused has not caused disproportionate
harm, then the benefit of Exception II to Section 300 of IPC can
be given to the accused. This proposition has been well explained
in the case of Bhanwar Singh v. State of Madhya Pradesh,-(2008) 16 SCC 657.
wherein this Court made the following observations-

“50. The plea of private defence has been brought
up by the appellants. For this plea to succeed in
totality, it must be proved that there existed a
right to private defence in favour of the accused,
and that this right extended to causing death.
Hence, if the court were to reject this plea, there
are two possible ways in which this may be done.
On one hand, it may be held that there existed a
right to private defence of the body. However,
more harm than necessary was caused or, alternatively,
this right did not extend to causing
death. Such a ruling may result in the application
of Section 300, Exception 2,
which states that
culpable homicide is not murder if the offender, in the
exercise in good faith of the right of private defence of
person or property, exceeds the power given to him by
law and causes the death of the person against whom
he is exercising such right of defence without premeditation,
and without any intention of doing more harm
than is necessary for the purpose of such defence. The
other situation is where, on appreciation of facts, the
right of private defence is held not to exist at all.”

(emphasis supplied)

12. Now, to consider the question as to whether the
exercise of right of private defence by the appellantaccused
was legitimate or not, it is undisputed that the fateful incident at the
hands of appellant was pursuant to an altercation with the
deceased for around 15 minutes, in the presence of other
colleagues. Both the deceased and the appellantaccused
were altercating facetoface
and standing at a distance of 10 feet from
each other. This shows that they could see the facial expressions
of each other clearly and comprehend the apprehending
circumstances accordingly. Taking note of the fact that owing to
the imminent danger perceived by the appellant from the aiming
of rifle at him by the deceased, he fired at the deceased and killed
him. This, in our opinion comes within the ambit of right to
private defence, however, it clearly traverses beyond the legitimate
exercise of the same. The appellantaccused
chose to shoot on a
vital part of the body i.e., chest to safeguard himself from the
imminent threat. However, the accused could have avoided the
vital part of the deceased. But, we do not find absence of good
faith in exercise of right of private defence. However, having
regard to the situs of the injury (i.e. the chest of the deceased), it
is clear that the accused has exceeded the power given to him in
law and has caused the death of the deceased against whom he
exercised right of private defence without premeditation. Thus,
offence committed by the accusedappellant
will fall under
Section 304 Part I of the IPC.

13. The law on this aspect of causing disproportionate
harm and exceeding right to private defence is amply clear. In
cases of disproportionate harm leading to death of the aggressor,
sentence under Section 304 Part I is the appropriate sentence.
This has been done by this Court in catena of cases.

14. In the case of Udaikumar Pandharinath Jadhav
Alias Munna v. State of Maharashtra
,-(2008) 5 SCC 214. this Court acquitted the
accused from charges under Section 302 IPC and modified the
conviction to Section 304 Part I of IPC, as per the following

“5. We observe from the evidence that the deceased
was not only a karate expert but also armed with a
knife and it is not surprising that the appellant apprehended
injury at his hands. We are therefore of the
opinion that the best that can be said for the prosecution
at this stage is that the appellant had exceeded
the right of private defence. We therefore partly allow
the appeal, acquit the appellant of the charge
under Section 302 IPC and modify his conviction
to one under Section 304(1) IPC in the background
that the fatal injury caused on the chest had penetrated
deep into the body.
We also impose a sentence
of 7 years’ rigorous imprisonment on the appel5
lant; the other part of the sentence to remain as it is.”

15. Further, in the case of Trilok Singh v. State (Delhi
,-1995 SCC (Cri) 158. this Court made observations regarding
modification of conviction from Section 302 IPC to Section 304
Part I IPC and the same is as follows

“6. We have gone through the entire evidence of PW
24 and PW 25. The evidence of PW 24 is to the effect
that he saw the accused and the deceased were quarrelling
and he went to the house and informed PW 25.
… But the question is whether he could go to the
extent of causing the death. No doubt in a situation
like this it cannot be expected that the accused
has to modulate his right of selfdefence.
But when he went to his house and brought a
knife and caused the death it cannot be said that
he did not exceed the right of private defence. We
cannot give the benefit to the appellant under
Section 100 IPC and the act committed by him
only attracts exception to Section 300 IPC. Therefore
the offence committed by him could be one
under Section 304 Part I IPC.”

(emphasis supplied)

16. Similar view was taken by this Court in Pathubha
Govindji Rathod v. State of Gujarat
,-(2015) 4 SCC 363 at Para 15, 1718. wherein it was ruled that
the accused exceeded his right to private defence. Thus, appeal
was partly allowed, conviction under Section 302 was set aside
and the accused was convicted under Section 304 Part I of the

17. Thus, taking into consideration all the material facts,
discussions and observations made hereinabove, we deem it
proper to set aside the conviction under Section 302 of IPC
passed by the High Court and convert the same to Section 304
PartI of the IPC.
18. Herein, it is brought to our notice that the appellant
has undergone 10 years of actual imprisonment which amounts
to 18 years of imprisonment as per the concerned State Jail
Manual. As the maximum sentence prescribed for the offence
committed under Section 304 PartI, IPC is 10 years and the
appellant is stated to have already undergone 10 years of actual
imprisonment, it is directed that he be released forthwith, if not
required in any other case.

19. Thus, the appeal stands disposed of, accordingly.





OCTOBER 31, 2018.

December 30, 2018

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