Penal Code, 1860 – Conversion of conviction from s.302 IPC to s.326 IPC – The complainant’s case that they used an old way passing through the fields of accused persons to go to their field – There was a dispute between the parties for using the fields as a passage – On the day of incident, the accused persons armed with ‘Kassies’ and lathies come out from the back of the bushes and surrounded the complainant when he was passing through fields – The accused tried to strike the complainant, however, the victim and other persons arrived from their fields – Thereafter, the accused No. 5/respondent no. 1 struck a ‘kassi’ blow on the head of the victim, due which he fell and later on died – There were beatings from both sides and after the intervention of other villagers, the accused persons ran away – The case was committed by the Sessions Court and the accused no. 5/respondent no. 1 came to be convicted u/ss. 148, 302, 324/149 IPC and sentenced to undergo life imprisonment – All the five accused including accused no. 5 preferred appeal before the High Court – As regards, accused no. 5/respondent no. 1, the High Court converted the conviction u/s. 302 IPC into one under s. 326 IPC on the finding that the said accused had exceeded his right of private defence – On appeal, held: On perusal of the relevant evidence and the judgments of the Trial Court and the High Court, there is no reason to depart from the conclusion reached by the Trial Court that there were tangible circumstances and evidence to indicate that the accused party was the aggressor, who was hiding in the bushes and appeared only after the complainant party arrived on the spot – The accused party armed with lethal weapons assaulted the complainant party – The blows inflicted by the concerned accused, in particular accused No. 5, here with intention to kill the victim/deceased – The High Court proceeded on the erroneous assumption that the accused party were provoked due to the unauthorized entry of the complainant party on their fields and to defend their possession, they had to resort to right of private defence – In the instant case, there was no evidence produced to substantiate the plea of exercise of private defence – The incident in question occurred due to provocation and spiralled into a free fight – Further, once it is a case of accused party being the aggressors and they commenced assault on the complainant party and the accused No. 5/respondent No. 1 having been found to have assaulted victim/deceased with intention to kill him the question of invoking the right of private defence does not arise – Insofar the conviction of the accused no.5/respondent no.1 is concerned, the sequence of events would indicate that provocation was not invited by the accused party, but was obviously at the instance of the complainant party, who entered the fields unauthorisedly despite the objection taken by the complainant party in that regard on the same day earlier – The death of the victim was caused by the one fatal blow on the head, which was with the intention of causing his death or causing such bodily injury as is likely to cause death, therefore, the case would be covered by s. 304-I, IPC – Accordingly, the impugned judgment of the High Court and that of the Trial Court are modified by convicting the accused no. 5/respondent no. 1 for offence punishable u/s. 304-I and s. 148 IPC.
Disposing of the appeal, the Court
HELD: 1. After having gone through the relevant evidence and judgments of the trial Court and the appeal Court (High Court), this Court has no reason to depart from the conclusion reached by the trial Court that there were tangible circumstances and evidence to indicate that the accused party was the aggressor, who was hiding in the bushes and appeared only after the complainant party arrived on the spot. The accused party had assembled at the spot with lethal weapon(s) and all the accused were waiting for the complainant party to arrive at the spot and started assaulting the complainant party. The blows inflicted by the concerned accused, in particular accused No. 5, were with an intention to kill victim (deceased). The death of victim was caused due to the blow inflicted by accused No. 5 and was a homicidal death. There is no reason to depart from the said findings recorded by the trial Court and the same remained undisturbed by the High Court. The High Court by its cryptic judgment, proceeded on the erroneous assumption that the accused party had been provoked due to the unauthorised entry of the complainant party on their fields and to defend their possession, they had to resort to right of private defence. While doing so, the accused party, in particular, accused No. 5, exceeded his right of private defence. There was no common object because the incident in question occurred due to provocation and spiralled into a free fight, causing injuries to both sides. The fallacy in the reasoning of the High Court is palpable from the evidence of prosecution witnesses, which has been elaborately analysed and rightly accepted as truthful by the trial Court, substantiating the allegations against the accused party of being the aggressors. Once it is a case of accused party being the aggressors and they commenced assault on the complainant party and further, the accused No. 5 having been found to have assaulted victim (deceased) with intention to kill him, the question of invoking the right of private defence does not arise. In fact, no defence evidence was produced to substantiate the plea of exercise of private defence. The two theories (of being aggressors as opposed to exercise of right of private defence) are antithesis to each other. [Para 9] [249-EH; 250-A-D]
2. From the description of injuries, it is amply clear that these injuries are superficial and as rightly found by the trial Court, will have no bearing on the prosecution case, even if the same remain unexplained. The fact that some of the accused had received grievous injuries, does not belie the prosecution case that the accused were the aggressors. There was no reason for the accused to remain in hiding position equipped with lethal weapon(s), waiting for the arrival of the complainant party and on their arrival, to immediately commence attack and cause fatal injuries to the complainant party. Such being the factual matrix, it is unfathomable as to how the plea of right of private defence could be invoked by the accused. If such a plea is not available, the question of answering the plea in favour of the accused that it was a case of excessive exercise of right of private defence does not arise at all. The basis of the High Court judgment being flawed in this regard, the conclusion recorded by it cannot stand the test of judicial scrutiny. For the same reason, the question of converting the offence under Section 302 to one under Section
326 cannot be countenanced, both on facts and in law. [Para 11] [251-E-H; 252-A-B]
3. Indeed, the trial Court’s finding of guilt recorded against accused No. 5, is unexceptionable. However, on the nature of offence, the trial Court considered the plea of the accused only in reference to offence falling under Section 304 Part II of the IPC. The trial Court rejected that argument and this Court must uphold that conclusion, because the finding of fact is that the act was done by the accused with the knowledge that it is likely to cause death, and with intention to kill victim (deceased). But before final opinion is expressed, it is necessary to examine as to whether the case in hand would be covered under the exceptions predicated in Section 300, IPC, so as to apply Section 304, IPC – be it Part I or Part II thereof. The facts of the present case would indicate that the accused, in particular accused No. 5, at the relevant time, was deprived of the power of self-control by grave and sudden provocation due to repeated unauthorised entry on the fields belonging to accused party. Further,the solitary fatal blow on the vital part of the head by accused No. 5 caused the death of victim (deceased). The provocation was not invited by the accused party, but was obviously at the instance of the complainant party,who entered the fields unauthorizedly despite the objection taken by the complainant party in that regard on the same day earlier. However, as the death of victim (deceased) was caused by the act of accused No. 5 giving one fatal blow on the head, which was with the intention of causing his death or causing such bodily injury as is likely to cause death, the case would be covered by Section 304 Part I, IPC. It is certainly not a case to simply proceed under Section 326 of the IPC, as held by the High Court. This Court disapproves that approach of the High Court. Even if the High Court had justly applied Section 326, IPC, this Court fails to appreciate as to how the High Court could have imposed sentence only for a period (about five months) undergone considering the nature and gravity of the offence and the background in which it is committed by the accused party, in particular, accused No. 5. [Para 12] [252-A-H]
Chandrakant Patil v. State through CBI (1998) 3 SCC
38 : [1998] 1 SCR 447 ; Sumer Singh v. Surajbhan Singh & Ors. (2014) 7 SCC 323 : [2014] 5 SCR
882 ; State of Rajasthan v. Ramanand (2017) 5 SCC
695 : [2017] 3 SCR 981 ; Gottipulla Venkatasiva Subbrayanam & Ors. v. the State of Andhra Pradesh & Anr. (1970) 1 SCC 235 : [1970] 3 SCR 423 ; Deo Narain v. The State of Uttar Pradesh (1973) 1 SCC
347 : [1973] 3 SCR 57 ; Subramani & Ors. v. State of Tamil Nadu (2002) 7 SCC 210 : [2002] 1 Suppl. SCR
718 ; State of Uttar Pradesh v. Gajey Singh &
Anr. (2009) 11 SCC 414 : [2009] 2 SCR 998 –
referred to.
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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