Penal Code, 1860: ss. 304 Part I and 300 Exception II - Right to private defence – Benefit of – On facts, altercation between the appellant and the victim, in presence of other colleagues – Victim aimed rifle at the appellant and the appellant fired gunshot at the victim in exercise of his right of private defence of his body and killed the victim – Acquittal by the trial court, however, the High Court convicted the appellant u/s. 302 holding that the right to private defence on the part of the appellant was not made out – On appeal, held: 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 – Having regard to the situs of the injury–chest of the deceased, it is clear that the accused exceeded the power given to him in law and caused the death of the deceased against whom he exercised right of private defence without premeditation – Absence of good faith is not found in exercise of right of private defence – In view thereof, offence committed by the appellant converted to s. 304 Part I – Appellant having already undergone the maximum sentence prescribed for the offence committed u/s 304 Part-I, is directed to be released forthwith.
Disposing of the appeal, the Court
HELD: 1.1 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 IPC can be given to the accused. [Para 11][736-E-F]
1.2 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 appellant–accused were altercating face-to-face 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 comes within the ambit of right to private defence, however, it clearly traverses beyond the legitimate exercise of the same. The appellant–accused 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 absence of good faith is not found 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. In cases of disproportionate harm leading to death of the aggressor, sentence under Section 304 Part I is the appropriate sentence. Thus, offence committed by the accused– appellant will fall under Section 304 Part I IPC. [Para 12, 13] [737-D-H; 738-A-B]
1.3 Taking into consideration all the material facts, the conviction under Section 302 IPC passed by the High Court is set aside and the same is converted to Section 304 Part–I IPC. [Para 17]739-C-D]
1.4 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 Part I, IPC is 10 years and the appellant is stated to have already undergone 10 years of actual imprisonment. The appellant is directed to be released forthwith. [Para 18][739-D-E] Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC 244; James Martin v. State of Kerala (2004) 2 SCC 203; Darshan Singh v. State of Punjab (2010) 2 SCC 333; Bhanwar Singh v. State of Madhya Pradesh (2008) 16 SCC 657; Udaikumar Pandharinath Jadhav Alias
Munna v. State of Maharashtra (2008) 5 SCC 214: Trilok Singh v. State (Delhi Administration) 1995 SCC (Cri) 158; Pathubha Govindji Rathod v. State of Gujarat (2015) 4 SCC 363 – referred to.
(1971) 3 SCC 244
referred to
Para 10
(2004) 2 SCC 203
referred to
Para 10
(2010) 2 SCC 333
referred to
Para 10
(2008) 16 SCC 657
referred to
Para 11
(2008) 5 SCC 214
referred to
Para 14
1995 SCC (Cri) 158
referred to
Para 15
(2015) 4 SCC 363
referred to
Para 16
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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