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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.

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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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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  

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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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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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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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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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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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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  

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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  

Administration1 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 Pradesh2 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

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plea in the cross-examination of prosecution witnesses or by  

adducing defence evidence.  Similarly, in  Mohd. Ramzani  

v. State of Delhi3, 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

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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  

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

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

of Madhya Pradesh4 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

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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 Pradesh5 and  Sikandar  

Singh and others  v.  State of Bihar6.  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

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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 others7, 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

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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 Bihar8,  

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

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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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 ………………………….....…….J.   [K. S. Radhakrishnan]

…………………….…….....…….J.                                                  [Dipak Misra]

New Delhi; April 11, 2014.  

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