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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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