Penal Code, 1860:
ss. 302 and 324 r/w s. 34 – Prosecution under – Death of two persons and injuries to two – Injuries also received by the accused – Cross-case by the accused – Conviction by courts below – In appeal, plea taken that the accused acted in private defence and at the spur of the moment without pre-meditation – Held: There is no evidence that the deceased were armed with any weapon – In view of the evidence of injured witnesses that the accused were armed with spears and other weapons and since the deceased were not armed, right of private defence is not available to the accused – The act of the accused also cannot be said to be at the spur of the moment without pre-meditation – Therefore, they are also not entitled to alternation of conviction from s. 302 to s. 304 – Conviction u/s. 302 upheld.
Dismissing the appeal, the Court
HELD: 1. The prosecution has relied upon the statement of complainant PW-3 as also the statement of PW-4 who are injured witnesses. PW-2, the doctor has been examined to prove the injuries on prosecution witnesses. It is statement of PW 3 which led to lodging of First Information Report that the appellants who were 7 to 8 in number challenged the witnesses. The appellants were having spear, accused was having axe and others were having sticks. They attacked the deceased and both the injured witnesses with spears and axe. [Paras 12, 13][254-F-H]
2. The appellants have lodged cross First Information Report. There is no evidence on the part of the appellants that the deceased were armed with any weapon in the first version, when they lodged report. The right of private defence is not available when the alleged assailants are unarmed. The right of private defence is to protect the person and the property. In such right, the person cannot cause more harm than what is necessary for the protection of the person and the property. What harm can be expected from the hands of the deceased when they were unarmed, whereas from the testimony of PW-3 and PW-4, the injured witnesses, the appellants were armed with spears and other weapons. The Post-Mortem report corroborates an oral testimony that both the deceased have received stab wounds. Therefore, the appellants cannot be said to have acted in the right of their private defence. Since the deceased were not armed, therefore, the appellants are not entitled to the right of private defence. [Paras 15, 17][255-A-D; 256-A]
Jangir Singh v. State of Punjab 2018 (15) SCALE 88 – distinguished.
3. Since there are multiple wounds on the chest of the deceased, it cannot be said that the appellants have acted at the spur of the moment without pre-meditation and that the appellants have not taken any advantage or acted in a cruel or unusual manner. It is not a case of single injury which one can infer on account of sudden fight. Therefore, the appellants are not entitled to be convicted under Section 304 IPC as they have given multiple injuries on the vital parts of the deceased. The Trial Court as well as the High Court was perfectly justified in law in convicting and sentencing the appellants for the offence under Section 302 IPC. [Para 18][256-A-C]
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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