ARJUN Vs STATE OF MAHARASHTRA
Bench: K.S. RADHAKRISHNAN,DIPAK MISRA
Case number: Crl.A. No.-000356-000356 / 2007
Diary number: 6141 / 2007
Advocates: SUDHANSHU S. CHOUDHARI Vs
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 356 OF 2007
Arjun … Appellant (s)
versus
State of Maharashtra … Respondent(s)
J U D G M E N T
K.S. Radhakrishnan, J.
1. The appellant, herein, was convicted by the 2nd Ad-hoc
Additional Sessions Judge for the offence punishable under
Section 302 of Indian Penal Code (for short ‘IPC’) for murder
of one Jagannath Rambhau Shirsath and for the offence
punishable under Section 326 IPC for causing grievous hurt
to Muktabai, wife of deceased – Jagannath.
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2. Aggrieved by the order of conviction and sentence, the
appellant preferred Criminal Appeal No. 646/2004 and the
State preferred Criminal Appeal No.828/2004 against
acquittal of accused No.8 – Babasaheb Maruti Shirsath
before the High Court of Bombay Bench at Aurangabad.
The High Court vide its judgment dated 24.11.2006
dismissed Criminal Appeal No. 646/2004 and confirmed the
conviction and sentence passed by the trial court against
the appellant. Criminal Appeal No. 828/2004 preferred by
the State against acquittal of accused No.8 was also
dismissed by the High Court vide judgment dated
24.11.2006. Aggrieved by the judgment in Criminal Appeal
No. 646/2004, this appeal has been preferred by the first
accused, Arjun.
3. The prosecution story, in a nutshell, is as follows:
The deceased Jagannath and Muktabai (PW 8) parents of
Rangnath (PW 1), his brothers Ashok Gahininath and
Rajendra –were all living together at Taklimanur, Taluka
Pathardi, District Ahmednagar. There were some property
disputes between the first accused (appellant) and the
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deceased - Jagannath for which the appellant had filed Civil
Suit being RCS No. 291/2001 before Taluka Court for an
order of injunction and possession and the court had
ordered status quo. The appellant was in the army service
and after retirement, about 5 to 6 years prior to the incident
on 30.07.2002, he started a stationery shop at Taklimanur
situated adjacent to the subject matter of the suit.
4. In the village Taklimanur, there was an annual fair on
30.07.2002. At about 4 PM, on that date when the
deceased came in front of the appellant’s shop, the
appellant abused the deceased. Later, when the deceased,
his wife – Muktabai and son Rangnath were going to
Ambikanagar for worship of the Goddess, the appellant, his
brothers Babasaheb (accused No.8), Buvasaheb (accused
No.2), Suresh - son of Buvasaheb (accused No.7), Dnyandeo
(accused No.4), Bhimrao (accused No.5), Patilba (accued
No.3), Ramnath (accused No.6) attacked the deceased on
the road near Tamarind tree. The appellant was armed with
a large knife, accused No.3 was armed with an axe and
others were carrying sticks. The appellant inflicted three
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blows on the head of the deceased with a large knife (Sura –
Article No.13)and deceased fell down. When PW 8 Muktabai
intervened to rescue her husband, the appellant inflicted
blows on her head, back and shoulder. Again, when PW 10
Karbhari (brother-in-law of PW 8) and his son Ambadas (PW
11) came to their rescue; the appellant assaulted both of
them. Due to the injuries, the deceased died on the spot.
Police arrived at the scene of occurrence; the victims were
taken to the nearby hospital.
5. PW 1, son of the deceased, lodged a report of the
incident with Pathardi Police Station at about 8.30PM on
the date of the incident. Based on that report, Crime No.
127/2002 was registered under Sections 147, 148, 302,
326, 324 r/w Section 149 IPC and investigation was
entrusted to P.I. Randive (PW 14). Later, all the accused
were arrested by 04.08.2002. The appellant made a
confessional statement and produced a large knife (sura –
article no.13) concealed in a pit on the bund of the field of
Ramkisan Shinde, which is near the scene of occurrence.
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6. The appellant had also lodged an FIR on 30.07.2002 at
8.50 P.M. against the complainant Rangnath, Karbhari (PW
10), Ambadas (PW 11) and other persons. The Sessions
Court tried the case registered against some of the
prosecution witnesses and they were convicted for offences
punishable under Section 307 r/w Section 149, Section 324
r/w Section 149, Section 147, Section 148, and Section 149
IPC for five years with fine.
7. The appellant herein took up the defence that the
parties were on inimical terms since he had filed Civil Suit
No. 291/2001 before the Civil Judge, Junior Division,
Pathardi. He also stated that pressure was also exerted on
him to withdraw the civil suit. Further, it was stated that
on 30.07.2002, when he was opening the shop, the
deceased, PW 10 and PW 11 came in front of the shop and
asked him to come out. Sensing some trouble, he accosted
accused No.8, who was at the market. PW 1, by that time,
also joined his father. They were armed with weapons.
Hence, he had to flee but they chased him. PW 1 inflicted a
blow with Gupti on the stomach of accused No.8 near a
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Pipal tree and the other accused continued to assault him.
Fearing that he would be killed, he snatched iron rod from
the hands of Gahininath and waived iron rod in the air. PW
1 had also inflicted injury on the stomach of accused No.2
with a Gupti. In that melee, the appellant and accused no.
8 were also injured and they were taken to the nearby
hospital. The appellant had sustained CLW on occipital
region 2X1X1 cms and an abrasion on forearm 3X1/4 cm.
Accused No.8 had sustained incised wound on the abdomen
from which the intestines were protruding with omentum.
8. Learned counsel appearing for the appellant Mr.
Sudhanshu S. Chaudhari submitted that the incident had
occurred in front of the shop of the accused and there was
previous rivalry between the parties due to the fact that he
had filed civil case against the deceased and others.
Learned counsel further submitted that the fact that the
appellant as well as accused No.8 had also sustained
injuries, would indicate that the appellant and others were
also attacked by the deceased and others. Learned counsel,
therefore, pointed out the fact that the appellant as well as
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accused No.8 had sustained injuries during the course of
incident was a relevant factor which should have been
taken into consideration by the courts below. Learned
counsel pointed out that the above facts would also indicate
that there was a fight between both the parties and the
prosecution had miserably failed to explain the injuries
sustained by the appellant and accused No. 8. The non-
explanation on the injuries is a relevant factor which should
have been taken note of for evaluating the prosecution
evidence. In support of his contention, reliance was placed
on judgment of this Court in Lakshmi Singh and Ors. v.
State of Bihar; 1976 (4) SCC 394 and Dashrath Singh v.
State of U.P.; 2004 (7) SCC 408. Learned counsel also
pointed out that injuries sustained by the appellant as well
as accused No.8 would positively show that the appellant
was not the aggressor and, consequently, the fatal injuries
sustained by the deceased was due to a sudden fight
between the parties and the accused had to ward off the
attack in his self defence. Learned counsel further pointed
out that the findings rendered by the courts below that it
was the appellant who was the aggressor and hence the plea
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of private defence was not available, was not correct.
Further, it was pointed out that the injuries sustained by
the appellant and accused No. 8 would clearly indicate that
the appellant is entitled to raise the plea of private defence.
9. Learned counsel, Ms. Asha G. Nair, appearing for the
State supported the conviction of the appellant by the trial
judge as well as the High Court. Learned counsel took us
elaborately to the prosecution evidence. Learned counsel
pointed out that the facts narrated by PW 1 – complainant
would clearly indicate that the deceased died due to the
blows inflicted on his head by the accused. The other
witnesses had corroborated the same and stated that it was
the accused – appellant, who had opened the attack by
inflicting blows on the head of the deceased by a large knife
(sura). Reference was also made to the evidence of PW 12 –
Dr. Kulkarni, the autopsy surgeon, who had stated that
injury Nos. 1, 2 and 5 were caused by hard and sharp
weapon such as Sura - article no. 13, injury no. 3 was
caused by hard and blunt weapon and injury Nos. 7, 8 and
9 were caused by hard and rough surface. In his opinion,
the death was caused on account of shock due to the
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injuries on the head and on the brain of the deceased. The
plea of private defence, as stated by the learned counsel, is
not available to the appellant. PW 1 and PW 8 had clearly
stated that it was the appellant who had first inflicted three
blows on the head of the deceased by a knife which was the
cause of death of Jaganath.
10. Learned counsel for the State took us to the evidence
of PWs 1, 8, 10 and 11 which according to the counsel,
would establish beyond doubt that it was the appellant who
was the aggressor and had inflicted fatal injuries on the
head of the deceased. Further, it was pointed out that the
fact that all the accused persons including the appellant
were armed with lethal weapons would clearly indicate that
it was pre-planned and deliberate. The plea of private
defence, it was submitted was rightly negatived by the trial
court as well as the High Court.
11. We have heard the learned counsel on either side at
length and critically examined the oral evidence adduced in
the case. The evidence of PWs 1, 8, 10 and 11 with regard
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to the assault, of the appellant on the deceased, has been
fully corroborated by the medical evidence as well as
evidence of independent witnesses. PW 9 has proved the
recovery of the weapon of offence. PW 8 – wife of the
deceased had also sustained injuries due to the attack of
the appellant, when she intervened to protect her husband.
The facts would clearly indicate that the appellant
harboured grudge against the victims in view of the property
dispute. The evidence of PW 12 indicates that the deceased
had sustained serious injuries on the brain. The facts
would indicate that PW 1 and others had, in fact,
obstructed the appellant but he was having a knife with
which could inflict three fatal injuries on the head of the
deceased. The mere fact that the other seven accused were
acquitted or that some of the prosecution witnesses were
also convicted would not be sufficient to hold that the
appellant was not the aggressor. True, there were some
minor injuries on the accused and some serious injuries on
PW 8 as well. Evidence of PWs 1, 8, 10 and 11 would
clearly indicate that the appellant was armed with a knife
and it was with that knife he had inflicted serious injuries
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on the head of the deceased and which was the cause of
death of Jagannath. Further, there is also sufficient
evidence to show that the appellant had inflicted injuries on
the wife of the deceased as well when she tried to save her
husband. The deceased was unarmed so also his wife and
the son. At the same time, the accused was armed with a
knife. No explanation is forthcoming either in his statement
u/s 313 Cr.P.C. or otherwise as to why he was having a
knife (sura) in his hand at the time of the incident. There is
no evidence to show that the deceased, his wife (PW 8) or
his son (PW 1) had ever attacked the accused.
12. Law clearly spells out that the right of private defence
is available only when there is a reasonable apprehension of
receiving injury. Section 99 IPC explains that the injury
which is inflicted by a person exercising the right should
commensurate with the injury with which he is threatened.
True, that the accused need not prove the existence of the
right of private defence beyond reasonable doubt and it is
enough for him to show as in a civil case that
preponderance of probabilities is in favour of his plea.
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Right of private defence cannot be used to do away with a
wrong doer unless the person concerned has a reasonable
cause to fear that otherwise death or grievous hurt might
ensue in which case that person would have full measure of
right to private defence.
13. It is for the accused claiming the right of private
defence to place necessary material on record either by
himself adducing positive evidence or by eliciting necessary
facts from the witnesses examined for the prosecution, if a
plea of private defence is raised. (Munshi Ram and Others
V. Delhi Administration, AIR (1968) SC 702; State of
Gujarat v. Bai Fatima, AIR (1975) SC 1478; State of U.P.
v. Mohd. Musheer Khan, AIR (1977) SC 2226 and
Mohinder Pal Jolly v. State of Punjab, AIR (1979) SC 577
and Salim Zia v. State of U.P., AIR (1979) SC 391.
14. 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
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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.
15. Section 97 deals with the subject matter of right of
private defence. The plea of right comprises the body or
property of the person exercising the right or 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 the property. Section 99 lays
down the limits of the right of private defence. Sections 96
and 98 give a right of private defence against certain
offences and acts. The right given under Sections 96 to 98
and 100 to 106 is controlled by Section 99. To plea 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.
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16. We are of the view that in the instant case, as rightly
held by the High Court and Trial Court, there is nothing to
show that the deceased, his wife (PW 8), his son (PW 1) or
others had attacked the appellant, nor the surrounding
circumstances would indicate that there was a reasonable
apprehension that the death or grievous hurt was likely to
be caused to the appellant by them or others. The plea of
private defence is, therefore, has no basis and the same is
rejected.
17. Considering the background facts as well as the fact
that there was no premeditation and the act was committed
in a heat of passion and that the appellant had not taken
any undue advantage or acted in a cruel manner and that
there was a fight between the parties, we are of the view
that this case falls under the fourth exception to Section
300 IPC and hence it is just and proper to alter the
conviction from Section 302 IPC to Section 304 Part 1 IPC
and we do so.
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18. We are informed that the appellant is in custody since
30.07.2003. In our view, custodial sentence of 10 years to
the accused-appellant would meet the ends of justice and it
is ordered accordingly. The appeal is accordingly disposed
of, altering the sentence awarded.
……………………………...J. (K.S. Radhakrishnan)
..………..………………………J (Dipak Misra)
New Delhi, May 3, 2012.
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