Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 885 OF 2007

State of Rajasthan ...Appellant

Versus

Manoj Kumar ...Respondent

With

CRIMINAL APPEAL NO. 1073 of 2007

State of Rajasthan ...Appellant

Versus

Raju @ Raj Kumar & Anr. ...Respondents

J U D G M E N T

Dipak Misra, J.

The present appeals, by special leave, have been

preferred against the common judgment and order dated

14.2.2006 passed by the High Court of Judicature for

Rajasthan, Jaipur Bench at Jaipur in D.B. Criminal Appeal No.

Page 2 396 of 2000 and D.B. Criminal Appeal No. 1011 of 2003,

wherein the High Court has partly allowed the appeal of Raju

@ Rajkumar by converting his conviction under Section 302

IPC to one under Section 304 Part I of IPC and further

confirming his conviction under Sections 25 and 27 of the

Arms Act and sentencing him to suffer rigorous

imprisonment for ten years and to pay a fine of Rs.500/-, in

default of payment of fine, to suffer further six months

rigorous imprisonment. Hemant Kumar, a co-accused along

with Raju and Manoj Kumar, who had preferred an

independent appeal, has been acquitted of all charges.

2.At the very outset we may state that Raju @ Rajkumar

has expired on 8.3.2012 and in proof thereof a death

certificate has been brought on record. In view of the same,

the Criminal Appeal No. 1073 of 2007 would stand abated as

far as Raju @ Rajkumar is concerned and would only survive

against the accused Hemant Kumar.

3.The prosecution case, in brief, is that the police

recorded the statement of deceased Anirudh Mishra at Sri

Kalyan Hospital Sikar on May 26, 1998 who had stated that

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Page 3 around 8:30 p.m. on that day he along with his brother

Basant Mishra, PW 4, and Mahesh Kumar Saini, PW 3, had

gone to the vacant plot belonging to him and his brother

situated at Lisadia ka Bas being apprehensive that that sons

of Ram Niwas and Shanti Prasad would take possession of

the plot. At that point of time sons of Ram Niwas and Shanti

Prasad were present at the house of Phoolji Lisadiya situate

adjacent to the plot. As per his version, they first abused him

and thereafter opened fire as a result of which he had

sustained a gun shot injury on the right side of his chest and

his brother Ramesh @ Umesh, PW 5, had brought him to the

hospital. On the basis of his statement the concerned police

officer registered FIR No. 243 of 1998 for the offences

punishable under sections 307 and 149 of IPC. However,

after the death of Anirudh, the offence was converted to one

under section 302 IPC and investigation commenced. During

the course of investigation, Raju and Hemant were arrested

and Manoj was declared as an absconder. A charge sheet

was filed against Raju and Hemant for the offences under

sections 302, 302/34 IPC and for offences under Section

3

Page 4 3/25, 3/27 and 3/33 of the Arms Act and it became the

subject matter of S.C. No. 34 of 1998. After Manoj was

arrested, a charge sheet was submitted against him for the

offence under Section 302/34 of IPC and he faced a separate

trial in S.C. No. 8 of 2002.

4.The accused persons abjured their guilt and pleaded

false implication because of property dispute and animosity.

In order to prove its case the prosecution in the first trial

examined as many as sixteen witnesses and got marked

thirty-seven documents and also brought eight articles on

record. In the second trial, the prosecution examined as

many as twelve witnesses and similar numbers of

documents were exhibited. In the second trial the defence

produced one witness and tendered four documents in

support of its plea.

5.The witnesses in both the trials are common and the

prime witnesses, as mentioned in first trial are, Anjani

Kumar, PW 1, brother of the deceased, Mahesh Kumar Saini,

PW 2 an eye witness, Basant Kumar, PW-4, brother of the

deceased, PW 5, Ramesh @ Umesh, another brother of the

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Page 5 deceased, Dr. V.K. Soni, PW 6, who had examined the

deceased and prepared the x-ray report, Dr. G.R. Tanwar,

PW 10, who had conducted the post-mortem and Bhagwan

Singh, PW 12, the Investigating Officer. After examining the

oral and documentary evidence the learned trial Judge

convicted Raj Kumar under section 302 read with Section 34

IPC and also under Sections 25/27 of the Arms Act, and

Hemant for the offences under Section 302/34 IPC. In the

second trial, accused Manoj was convicted under Section

302/34, IPC.

6.The accused persons preferred two separate appeals

and the High Court in its common judgment and order

accepted the stand of all the accused persons relating to

right of private defence. However, as the accused Raju has

exceeded the right of private defence, the High Court

converted his conviction to one under Section 304 Part-I IPC

and sentenced him as stated hereinbefore. As far as

accused Hemant and Manoj are concerned, it opined that

their conviction could not be sustained in aid of Section 34,

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Page 6 IPC, for in the obtaining facts and circumstances Section 34

was not applicable.

7.We have heard Mr. Milind Kumar, learned counsel

appearing for the State and Mr. Sushil Kumar Jain, learned

counsel appearing for the respondent.

8.Two questions that emerge for consideration in these

appeals, are (i) whether the High Court was justified in

accepting the contention of right of private defence; and (ii)

whether the conclusion of the High Court that Section 34 IPC

could not be attracted regard being had to the factual score,

is correct.

9.On a perusal of the judgment of the learned trial Judge,

it is demonstrable that he has set out in detail that a dispute

existed between the parties over the possession of land in

question. He has arrived at the conclusion that as per the

evidence brought on record, both ocular and documentary,

Parasram Lisadiya had sold the plot to Ramesh Kumar, the

elder brother of the deceased, Anirudh Mishra, vide

Registered Sale-deed, Ex.P-9. It has been brought on record

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Page 7 that a dispute in regard to the plot was in existence between

Parasram Lisadiya and Phool Chand Lisadiya and it has led

Parasram to file the civil suit No. 131 of 1986 for permanent

injunction wherein it was alleged that on 11.7.1986 Phool

Chand had obstructed Parasram from commencing the

construction on the plot. On 17.9.1997 the suit for

permanent injunction was decreed ex-parte against Phool

Chand restraining him from interfering with the possession

of Parasram over the land in question. It is also reflectible

from Ex.P-9 that by the time the suit was decided in favour

of the plaintiff, Parasram had already sold the plot vide

Registered Sale-deed, Ex.P-9, to Ramesh Mishra, who had

obtained sanction for construction vide Ex.P-12 and the site

plan vide Ex.P-14. The events happened in quick succession

and Ramesh, after obtaining necessary sanction, had started

collecting material for construction. It has come in the

evidence of Ramesh, PW-5, that the dispute existed between

Parasram and Phool Chand over the possession even after

the sale-deed was executed. It has also come on record that

sanction for construction was obtained only four days prior

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Page 8 to the incident; and that a cavil existed in regard to the plot

between the informant and the accused persons as the

original owner, Phool Chand had mortgaged the said plot to

Shanti Prasad, father of the accused and they were in

possession. As we notice from the evidence on record, there

can be no iota of doubt that Rajkumar has fired the gunshot

as a consequence of which Anirudh breathed his last. It is

also clear that there was a dispute over the land and the

possession still remained with the accused persons. It is also

borne out from the evidence that the accused persons were

not parties to the suit. In such a situation, Ramesh was

trying to raise construction by collecting material at the site

and, in fact, to take over possession, had sent his brother

Anirudh and other brothers. After the deceased and the

others came at the site the accused persons, getting the

information, had reached to the house of Risadiya and

initially a verbal altercation took place and, eventually, a

gunshot was fired.

10.The High Court has taken into consideration various

aspects, namely, there was dispute with regard to the

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Page 9 ownership and possession over the plot in dispute; that the

informant and others had gathered the materials for

construction of the plinth few days before the incident; that

the municipal council has granted sanction only four days

prior to the incident; that Ramesh, PW-5, and others were

apprehensive that they would lose possession; that an

affirmative plea relating to possession by the accused

persons had been taken; and that the accused Rajkumar

with the intention to defend the possession of the property

and to drive away the deceased and others had opened the

fire, but, unfortunately, it hit the deceased. On the aforesaid

analysis of the evidence, the High Court was persuaded to

hold that the accused Rajkumar had exceeded his right of

private defence.

11.Mr. Milind Kumar, learned counsel for the State, has

submitted that the accused persons had not taken the plea

of right of private defence in their statement under Section

313 of the Code of Criminal Procedure and hence, the High

Court could not have adverted to the same. It is further put

forth that even assuming the stand can be considered, in the

9

Page 10 case at hand the accused persons have miserably failed to

discharge the burden in establishing their right of private

defence. In this context, we may refer with profit to the

pronouncement in Munshi Ram and others v. Delhi

Administration

1

wherein it has been laid that even if an

accused does not take the plea of private defence, it is open

to the court to consider such a plea if the same arises from

the material on record and burden to establish such a plea is

on the accused and that burden can be discharged by

showing preponderance of probabilities in favour of that plea

on the basis of material on record. In Salim Zia v. State of

Uttar Pradesh

2

the observation made by this Court to the

effect that it is true that the burden on an accused person to

establish the plea of self-defence is not as onerous as the

one which lies on the prosecution and that while the

prosecution is required to prove its case beyond reasonable

doubt, the accused need not establish the plea to the hilt

and may discharge his onus by establishing a mere

preponderance of probabilities either by laying basis for that

1

(1968) 2 SCR 455

2

(1979) 2 SCC 648

10

Page 11 plea in the cross-examination of prosecution witnesses or by

adducing defence evidence. Similarly, in Mohd. Ramzani

v. State of Delhi

3

, it has been held that it is trite that the

onus which rests on an accused person under Section 105,

Evidence Act, to establish his plea of private defence is not

as onerous as the unshifting burden which lies on the

prosecution to establish every ingredient of the offence with

which the accused is charged, beyond reasonable doubt.

12.In the case at hand, the plea of right of private defence

arises on the base of materials on record. As far as onus is

concerned, we find that there is ocular and documentary

evidence to sustain the concept of preponderance of

probability. It can not be said that there is no material on

record or scanty material to discard the plea. Thus, the

aforesaid submission being unacceptable, are hereby

repelled.

13.Learned counsel for the State next contended that

when the accused persons had exceeded their right of

private defence and caused the death of the deceased, all of

3

1980 Supp SCC 215

11

Page 12 them should have been convicted under Section 302/34 IPC.

In this regard, we may refer with profit to certain authorities

before we advert to the facts unfurled in the case at hand.

In Munshi Ram (supra), while dealing with right to private

defence, this Court has observed that law does not require a

person whose property is forcibly tried to be occupied by

trespassers to run away and seek the protection of the

authorities, for the right of private defence serves a social

purpose and that right should be liberally construed. The

Court further stated that such a right not only will be a

restraining influence on bad characters but it will encourage

the right spirit in a free citizen, because there is nothing

more degrading to the human spirit than to run away in the

face of peril. In Mohd. Ramzani (supra) the Court has

observed that it is further well-established that a person

faced with imminent peril of life and limb of himself or

another, is not expected to weigh in “golden scales” the

precise force needed to repel the danger. Even if he in the

heat of the moment carries his defence a little further than

what would be necessary when calculated with precision and

12

Page 13 exactitude by a calm and unruffled mind, the law makes due

allowance for it. In Bhanwar Singh and others v. State

of Madhya Pradesh

4

it has been ruled to the effect that for

a plea of right of private defence 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 and if the court were to reject the said plea,

there are two possible ways in which this may be done, i.e.,

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 and in such a situation it would

result in the application of Section 300 Exception 2.

14.On the touchstone of the aforesaid principles, the

evidence brought on record and the conclusion arrived at by

the High Court have to be tested. There is material on

record that there were altercations between the accused and

the deceased on the one hand and the others and there was

threat that the informant and others would take over

4

(2008) 16 SCC 657

13

Page 14 possession. The High Court has found that there was a

threat to the property of Raj Kumar and he had made an

effort to drive away the informant and others. Though the

prosecution has come out with the version that the accused

persons were trying to take over possession, yet on a

scrutiny of the evidence it becomes quite vivid that they

were in a hurry to raise construction at the site and,

accordingly, were taking steps. In this context, the act of the

accused is to be adjudged. It has to be appreciated regard

being had to the surrounding circumstances and not by way

of microscopic pedantic scrutiny, as has been held in Vidya

Singh v. The State of Madhya Pradesh

5

and Sikandar

Singh and others v. State of Bihar

6

. True it is, he had

fired a gunshot but it was really not with the intention to

cause the death of the deceased. The prosecution has not

brought any material on record that the said accused was

vindictive, or he had any malicious intention to cause the

death of the deceased. Had that been there, then it would

have been totally contrary to the concept of right of private

5

AIR 1971 SC 1857

6

(2010) 7 SCC 477

14

Page 15 defence. That being the position, the High Court has rightly

accepted the submission that Raj Kumar had exceeded the

right of private defence and has correctly found him guilty

under Section 304 Part I IPC.

15.Presently, we shall advert to the facet of justifiability of

the acquittal of the accused persons who had accompanied

the accused who had fired the gunshot. Learned counsel for

the State would urge that as they had come to the spot with

the accused Raj Kumar and they had the common intention.

Even if there was no prior intention, submits Mr. Milind

Kumar, learned counsel for the State, it developed on the

spot. On a perusal of the evidence, we find that accused

Manoj Kumar and Hemant Kumar had accompanied accused

Rajkumar to defend the right of possession. It is a case

where accused Rajkumar exceeded the right of private

defence. A three-Judge Bench in State of Bihar v. Nathu

Pandey and others

7

, while accepting the reasoning of the

High Court that some of the accused persons had exceeded

the right of private defence, opined that when it is not

7

(1969) 2 SCC 207

15

Page 16 possible to say that all the accused persons have the

common object to commit murder and only those, who

exceeded the right of private defence, would be held

responsible for their murders.

16.In Joginder Ahir and others v. The State of Bihar

8

,

the Court referred to the decision in Nathu Pandey and

others (supra) and dealing with the applicability of Section

34 IPC, taking into consideration almost similar findings,

opined that there was no common intention on the part of all

the accused persons to commit the crime. In the said case,

the High Court had convicted the accused-appellants therein

under Section 304 Part II in aid of Section 34 IPC. Dealing

with the same it has been held as follows: -

“We are unable to concur with the view of the

High Court that any such common intention could

be attributed to the appellants on the facts and in

the circumstances of the case. They certainly had

the common intention of defending the invasion of

the right to property. While doing so if one or two

out of them took it into his or their heads to inflict

more bodily harm than was necessary, the others

could not be attributed the common intention of

inflicting the injuries which resulted in the death of

the deceased. Section 34 can only be applied

when a criminal act is done by several persons in

8

(1971) 3 SCC 449

16

Page 17 furtherance of the common intention of all. No

overt-act had been proved or established on the

part of the appellants which showed that they

shared the intention of the person or persons who

inflicted the injury or injuries on the head of the

deceased which led to his death. They cannot,

therefore, possibly be held guilty of an offence

under Section 304, Part II, read with Section 34 of

the Indian Penal Code.”

17.The facts in the present case, as we understand, are

similar to the factual score in the aforesaid case because the

right of private defence had only been exceeded by

Rajkumar. In such a case, the guilt of each of the accused,

who had exceeded the right of private defence, has to be

dealt with separately. The matter would have been totally

different, had the right of private defence did not exist at all

or the accused persons had done any overt act. Thus, in our

considered opinion, the constructive liability, as envisaged

under Section 34 IPC, is not attracted.

18.In view of our aforesaid analysis, we do not perceive

any merit in these appeals and, accordingly, they are

dismissed.

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Page 18 ………………………… .....…….J.

[K. S. Radhakrishnan]

…………………… .…….....…….J.

[Dipak Misra]

New Delhi;

April 11, 2014.

18