Madhya Pradesh High Court
Shivcharan vs State Of M.P. on 17 August, 2021
Author: Rajeev Kumar Shrivastava
Bench: G.S.Ahluwalia, Rajeev Kumar Shrivastava
-( 1 )- CRA No. 445/2009
Shivcharan & Gorelal vs. State of MP
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
BEFORE: G.S.AHLUWALIA
AND
RAJEEV KUMAR SHRIVASTAVA, JJ.
Criminal Appeal No. 445/2009
1. Shivcharan S/o Gorelal Ahirwar
2. Gorelal S/o Buddha Ahirwar
Both R/o Village Kamlapur, P.S. Cantt
District Guna (MP)
Versus
State of Madhya Pradesh
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Shri S.K.Tiwari, learned counsel for the appellants.
Shri Rajiv Upadhyay, learned Public Prosecutor, for the
respondent/ State.
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Date of hearing : 11th August, 2021
Date of Judgment : 17th August, 2021
Whether approved for reporting:
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JUDGMENT
(17/08/2021) Per Rajeev Kumar Shrivastava, J.:
The instant Criminal Appeal is preferred under Section 374 of CrPC, challenging the conviction and sentence dated 23.06.2009 passed by Special Judge and Additional Sessions Judge, Distrit Guna in Sessions Trial No. 99/2008, whereby appellant No.1-Shivcharan has been convicted under Section 302 of IPC and appellant No.1-Gorelal has been convicted under Section 302 or Section 302/34 of IPC and each of them has been sentenced to undergo RI for life and fine of Rs.1000/- and in default of payment of fine, to undergo additional RI for six -( 2 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP months.
2. It is admitted fact that deceased Ramesh was the son of accused Gorelal and real brother of accused Shivcharan. Complainant Vimlabai is the wife of deceased Ramesh.
3. The facts necessary to be stated for disposal of the instant appeal are that the deceased Ramesh, Surendra and Shivcharan were three brothers. Deceased Ramesh was eldest son, Suresh resides separately and Shivcharan resides with Gorelal at village Kamlapur, however he resides in independent house. Accused Gorelal was having 30 bighas of land, out of which Gorelal had given 4 bighas land to deceased Ramesh. Deceased Ramesh used to quarrel with his father Gorelal with regard to less distribution of land to him. On 5.1.2008 in the noon, Gorelal came to the residence of Ramesh and asked to leave the land but deceased Ramesh denied. On account of that, Gorelal torned his clothes and after altercation Gorelal returned back. Again at around 6.30 pm when deceased Ramesh was sitting in front of his house at the door and was having food, accused Gorelal and Shivcharan reached there and on account of quarrel happened in the noon they caused injuries to the deceased Ramesh. Shivcharan caused lathi blows on head, mouth, cheek, back and on limbs and caused grievous hurt on head and mouth. Complainant Vimlabai was screaming constantly. Ramesh died on the spot. Thereafter, complainant Vimlabai called her son-in-law Mishrilal, who came on the spot. Thereafter, information was given to the Chowkidar concerned and FIR was lodged on 6.1.2008 at Police Station Cantt District Guna.
4. During the course of investigation Inspector L.C. Shrivas (PW-16) prepared Lash Panchnama, seized blood-stained and plain soil, two teeth from the place of incident and one blood-
-( 3 )- CRA No. 445/2009Shivcharan & Gorelal vs. State of MP stained lathi was seized from the house of the accused person. Map of place of incident was prepared. Postmortem of the body of deceased Ramesh was conducted. Statements under Section 161 of CrPC were recorded. The seized articles were sent to FSL, Gwalior for their forensic test. After completion of investigation charge sheet was filed.
5. Appellants were tried for the offences under Sections 302 or 302 read with Section 34 of IPC. Appellants abjured their guilt and submitted that deceased Ramesh was habitual drinker and despite giving his share he was continuously quarrelling with his father for getting more share in the land. On account of that, Ramesh came to kill Gorelal and Shivcharan was rescuing his father. Hence, no offence has been committed by the appellants.
6. Trial Court after appreciation of evidence available on record convicted and sentenced both the appellants as under :-
Name of Section Punishment Fine In default, accused punishment Shivcharan 302 IPC Life Imprisonment 1000/- 6 Months RI Gorelal 302, or Life Imprisonment 1000/- 6 Months 302/34 IPC RI
7. The grounds raised are that the trial Court has wrongly convicted both the appellants. The trial Court has misread the evidence and misapplied the law in its approach to the case. The prosecution witnesses were highly interested witnesses. Their statements are self-contradictory to each other on material particulars and, therefore, not reliable. Complainant Vimlabai (PW-1), who is the wife of the deceased, has admitted in para 7 of her statement that her husband was drunk on the date of incident.
-( 4 )- CRA No. 445/2009Shivcharan & Gorelal vs. State of MP She has also admitted in para 4 of her examination-in-chief that when her husband fell down, Gorelal came and hit by shoes on the head of the deceased. She has also stated that "tc tku fudy xbZ rc xksjsyky vkdj jes'k ls psaV x;kA".
8. It is further argued by learned counsel for the appellants that appellant No.2-Gorelal had hit by shoes on the head of the deceased after his death, therefore, no case is made out against the appellant No.2.
9. It is submitted that Mishrilal (PW-3), Marobai (PW-5), Bharti (PW-6) and Harnarayan (PW-9) are the witnesses, who reached at the place of incident after the incident had taken place. Mangal Singh (PW-2) and Munnalal (PW-4) have not supported the case of prosecution. Ku. Bharti (PW-6) is a child witness. There is no any eye-witness to the incident. Even complainant Vimlabai (PW-1) has stated in para 11 of her statement that at the time of incident, Ku. Bharti (PW-6) was out of house and went for she-goats grazing. The trial Court in para 9 of its judgment has not treated this witness as eye-witness of the incident.
10. So far as the defence in respect of appellant No.1- Shivcharan is concerned, he has submitted in his statement recorded under Section 233(ii) of CrPC and looking to the aforesaid statement, appellant No.1-Shivcharan is fully entitled for the right of private defence under Sections 96, 97, 99, 100 and 101 of IPC. Under the existing circumstances of the case accused Shivcharan is fully entitled to save himself and his father from the hands of the deceased. Hence, the act of the appellant is totally covered under the provisions of right of private defence.
11. It is further submitted that Ramesh Puri (PW-12) and -( 5 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP Puran Dheemar (PW-14), who also reached at the place of incident after being called upon by the complainant and informed the police regarding aforesaid incident, have also not supported the prosecution case. Rather, Puran Dheemar (PW-14) has stated in para 2 of his statement that when he reached there, he saw that appellant No.2-Gorelal was sitting by the side of the deceased and was weeping and appellant Shivcharan was also there. Hence, prayed for setting aside the impugned judgment of conviction and sentence.
12. Per Contra, learned State Counsel opposed the submissions and submitted that the trial Court has rightly convicted the appellants and awarded sentence. Hence, no case is made out for interference.
13. Heard the learned counsel for the rival parties and perused the record.
14. In the present case, the following question emerges for consideration :
"(i) Whether, on 5.1.2008 at about 6.30 pm murder of deceased Ramesh was committed ?
(ii) Whether, the aforesaid act was done by the appellants/accused persons ?
(iii) Whether, the aforesaid act was done in furtherance of common intention ?
(iv) Whether, the accused persons were knowing that the act done by them was sufficient in the ordinary course of nature to commit culpable homicide of the deceased ?
15. The main points for considering the appeal are :
-( 6 )- CRA No. 445/2009Shivcharan & Gorelal vs. State of MP
(a) Whether, deceased Ramesh was the aggressor, who started beating to Gorelal, therefore, Shivcharan, son of Gorelal, was rescuing his father Gorelal and the injuries inflicted by Shivcharan were rational, therefore, no case is made out against accused Shivcharan under the provisions of right of private defence ?
(b) Whether the act was done in furtherance of common intention ?
(c) Whether the death of Ramesh is a culpable homicide ?
(d) If yes, whether the aforesaid culpable homicide amounts to murder ?
(e) Whether aforesaid murder has been committed by the appellants ?
16. Before considering the merits of the case, it would be appropriate to throw light on the relevant provisions of law.
(i) Section 96 of IPC runs as under :-
"96. Things done in private defence.--
Nothing is an offence which is done in the exercise of the right of private defence."
(ii) Section 97 of IPC runs as under :-
"97. Right of private defence of the body and of property.-- Every person has a right, subject to the restrictions contained in section 99, to defend--
First,-- His own body, and the body of any other person, against any offence affecting the human body;
Secondly.--The property, whether movable or immovable, of himself or of any other person, -( 7 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass."
(iii) Section 99 of IPC runs as under :-
"99. Acts against which there is no right of private defence.--There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act, may not be strictly justifiable by law.
There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law.
There is no right of private defence in cases in which there is time to have recourse to protection of the public authorities.
Extent to which the right may be exercised.--The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
Explanation 1.--A person is not deprived of the right of private defence against an act done, or attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.
Explanation 2.--A person is not deprived of the right of private defence -( 8 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP against an act done, or attempted to be done, by the direction of a public servant, unless he knows, or has reason to believe, that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded."
(iv) Section 100 of IPC runs as under :-
"100. When the right of private defence of the body extends to causing death.-- The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:--
First.--Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault;
Secondly.--Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;
Thirdly.--An assault with the intention of committing rape; Fourthly.-- An assault with the intention of gratifying unnatural lust;
Fifthly.--An assault with the intention of kidnapping or abducting;
Sixthly.--An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his release.-( 9 )- CRA No. 445/2009
Shivcharan & Gorelal vs. State of MP Seventhly.--An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act."
17. In the present case, relevant section relating to private defence runs as under :
" Section 101. When such right extends to causing any harm other than death.-- If the offence be not of any of the description enumerated in the last preceding section, the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does not extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death."
18. Section 8 of the Indian Evidence Act, 1872 runs as under :-
"8. Motive, preparation and previous or subsequent conduct.--Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.
The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.
Explanation 1. -- The word conduct in this section does not include statements, unless those statements accompany and explain acts other than statements; but this -( 10 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP explanation is not to affect the relevancy of statements under any other section of this Act.
Explanation 2. -- When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant."
19. Section 34 of Indian Penal Code runs as under :-
"34.-- Acts done by several persons in furtherance of common intention.-- When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
20. Section 34 of the Indian Penal Code recognises the principle of vacarious liability in criminal jurisprudence. A bare reading of this Section shows that the Section could be dissected as follows :
(a) Criminal act is done by more than one person;
(b) Such act is done in furtherance of the common intention;
(c) Each of such persons is liable for that act in the same manner as if it was done by him alone.
In other words, these three ingredients would guide the court in determining whether an accused is liable to be convicted with the aid of Section 34 of IPC. While first two are the acts which are attributable and have to be proved as actions of the accused, the third is the consequence. Once the criminal act and common intention are proved then by fiction of law, criminal liability of having done that act by each person individually would arise. The criminal act, according to Section 34 I.P.C., must be done by more than one person. The emphasis in this part of the Section is on the word 'done'. It only flows from this that before a person can be convicted by following the provisions of Section 34 -( 11 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP of IPC, that person must have done something along with other persons. Some individual participation in the commission of the criminal act would be the requirement. Every individual member of the entire group charged with the aid of Section 34 of IPC must, therefore, be a participant in the joint act which is the result of their combined activity. The Section does not envisage a separate act by all of the accused persons for becoming responsible for the ultimate criminal act. If such an interpretation is accepted, the purpose of Section 34 of IPC shall be rendered infructuous.
21. Section 34 of IPC is intended to meet a situation wherein all the co-accused have also done something to constitute the commission of a criminal act. Even the concept of presence of the co-accused at the scene is not a necessary requirement to attract Section 34 e.g., the co-accused can remain a little away and supply weapons to the participating accused can inflict injuries on the targeted person. Another illustration, with advancement of electronic equipment can be etched like this; One of such persons in furtherance of the common intention, overseeing the actions from a distance through binoculars can give instructions to the other accused through mobile phones as to how effectively the common intention can be implemented. The act mentioned in Section 34 I.P.C., need not be an overt act, even an illegal omission to do a certain act in a certain situation can amount to an act e.g., a co-accused, standing near the victim face to face saw an armed assailant nearing the victim from behind with a weapon to inflict a blow. The co-accused, who could have alerted the victim to move away to escape from the onslaught deliberately refrained from doing so with the idea that the blow should fall on the victim. Such omission can also be termed as an act in a given situation. Hence an act, whether overt or covert, is indispensable to be done -( 12 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP by a co-accused to be fastened with the liability under the Section. But if no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34 I.P.C., cannot be invoked for convicting that person. This Section deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself, for 'that act' and 'the act' in the latter part of the Section must include the whole action covered by 'a criminal act' in the first part, because they refer to it. This Section refers to cases in which several persons both intend to do and do an act. It does not refer to cases where several persons intended to an act and some one or more of them do an entirely different act.
22. In Suresh Sankharam Nangare vs. State of Maharashtra [2012 (9) SCALE 345], it has been held that "if common intention is proved but no overt act is attributed to the individual accused, section 34 of the Code will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, section 34 cannot be involved. In other words, it requires a pre- arranged plan and pre-supposes prior concert, therefore, there must be prior meeting of minds."
23. In Shyamal Ghosh vs. State of West Bengal [AIR 2012 SC 3539], it is observed that " Common intention means a pre-oriented plan and acting in pursuance to the plan, thus common intention must exist prior to the commission of the act in a point of time."
24. In Mrinal Das vs. State of Tripura [AIR 2011 SC -( 13 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP 3753], it is held that "the burden lies on prosecution to prove that actual participation of more than one person for commission of criminal act was done in furtherance of common intention at a prior concert."
25. In Ramashish Yadav v. State of Bihar [AIR 1999 SC 1083], it is observed that "it requires a pre-arranged plan and pre-supposes prior concert therefore there must be prior meeting of mind. It can also be developed at the spur of moment but there must be pre-arrangement or premeditated concert."
26. Mainly two elements are necessary to fulfill the requirements of Section 34 of IPC. One is that the person must be present on the scene of occurrence and second is that there must be a prior concert or a pre-arranged plan. Unless these two conditions are fulfilled, a person cannot be held guilty of an offence by the operation of Section 34 of IPC. Kindly see, Bijay Singh v. State of M.B. [1956 CrLJ 897].
27. In a murder case a few accused persons were sought to be roped by Section 34 I.P.C. It was found that one of the accused persons alone inflicted injuries on the deceased and the participation of the other accused persons was disbelieved. The person who alone inflicted injuries was held liable for murder and others were acquitted. Kindly see, Hem Raj vs. Delhi (Administration) [AIR 1990 SC 2252].
28. In Dashrathlal v. State of Gujarat [1979 CrLJ 1078 (SC)], it has been observed that "by merely accompanying the accused one does not become liable for the crime committed by the accused within the meaning of Section 34 I.P.C."
29. In Rajagopalswamy Konar vs. State of Tamil Nadu [1994 CrLJ 2195 (SC)], there was land dispute between the -( 14 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP members of a family, as a result of which deceased persons were attacked by the accused persons, in which one accused stabbed both the deceased persons and other caused simple injuries with a stick. It was held that the conviction of both the accused under Section 34 read with Section 302 IPC was not proper. Other accused was convicted under Section 324 of IPC.
30. In Sheikh Nabab v. State of Maharashtra [1993 CrLJ 43(SC)], it is observed that "the overtact on the part of accused could not be proved and it was held that the order of the conviction was not proper."
31. Now, we come to the provisions of Sections 299 and 300 of Indian Penal Code.
32. The Law Commission of United Kingdom in its 11th Report proposed the following test :
"The standard test of knowledge is Did the person whose conduct is in issue either knows of the relevant circumstances or has no substantial doubt of their existence?"
[See Text Book of Criminal Law by Glanville Wiliams (p.125)] "Therefore, having regard to the meaning assigned in criminal law the word "knowledge" occurring in clause Secondly of Section 300 IPC imports some kind of certainty and not merely a probability. Consequently, it cannot be held that the appellant caused the injury with the intention of causing such bodily injury as the appellant knew to be likely to cause the death of Shri Ahirwar. So, clause Secondly of Section 300 IPC will also not apply."
33. The enquiry is then limited to the question whether the offence is covered by clause Thirdly of Section 300 IPC. This clause, namely, clause Thirdly of Section 300 IPC reads as under: -
-( 15 )- CRA No. 445/2009Shivcharan & Gorelal vs. State of MP "Culpable homicide is murder, if the act by which the death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death."
The argument that the accused had no intention to cause death is wholly fallacious for judging the scope of clause Thirdly of Section 300 IPC as the words "intention of causing death" occur in clause Firstly and not in clause Thirdly. An offence would still fall within clause Thirdly even though the offender did not intend to cause death so long as the death ensues from the intentional bodily injury and the injuries are sufficient to cause death in the ordinary course of nature. This is also borne out from illustration
(c) to Section 300 IPC which is being reproduced below: -
"(c) A intentionally gives Z a sword-cut or club-
wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z's death."
Therefore, the contention advanced in the present case and which is frequently advanced that the accused had no intention of causing death is wholly irrelevant for deciding whether the case falls in clause Thirdly of Section 300 IPC.
34. The scope and ambit of clause Thirdly of Section 300 IPC was considered in the decision in Virsa Singh vs. State of Punjab, [AIR 1958 SC 465], and the principle enunciated therein explains the legal position succinctly. The accused Virsa Singh was alleged to have given a single spear blow and the injury sustained by the deceased was "a punctured wound 2" x ="
transverse in direction on the left side of the abdominal wall in the lower part of the iliac region just above the inguinal canal. Three -( 16 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP coils of intestines were coming out of the wound." After analysis of the clause Thirdly, it was held: -
"The prosecution must prove the following facts before it can bring a case under S. 300 "Thirdly"; First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved. These are purely objective investigations. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type, just described, made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout), the offence is murder under S. 300 "Thirdly". It does not matter that there was no intention to cause death, or that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (there is no real distinction between the two), or even that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death."
35. In Arun Nivalaji More vs. State of Maharashtra (Case No. Appeal (Cri.) 1078-1079 of 2005), it has been -( 17 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP observed as under :-
"11. First it has to be seen whether the offence falls within the ambit of Section 299 IPC. If the offence falls under Section 299 IPC, a further enquiry has to be made whether it falls in any of the clauses, namely, clauses 'Firstly' to 'Fourthly' of Section 300 IPC. If the offence falls in any one of these clauses, it will be murder as defined in Section 300IPC, which will be punishable under Section 302 IPC. The offence may fall in any one of the four clauses of Section 300 IPC yet if it is covered by any one of the five exceptions mentioned therein, the culpable homicide committed by the offender would not be murder and the offender would not be liable for conviction under Section 302 IPC. A plain reading of Section 299 IPC will show that it contains three clauses, in two clauses it is the intention of the offender which is relevant and is the dominant factor and in the third clause the knowledge of the offender which is relevant and is the dominant factor. Analyzing Section 299 as aforesaid, it becomes clear that a person commits culpable homicide if the act by which the death is caused is done
(i) with the intention of causing death;
or
(ii) with the intention of causing such bodily injury as is likely to cause death; or
(iii) with the knowledge that the act is likely to cause death."
If the offence is such which is covered by any one of the clauses enumerated above, but does not fall within the ambit of clauses Firstly to Fourthly of Section 300 IPC, it will not be murder and the offender would not be liable to be convicted under Section 302 IPC. In such a case if the offence is such which is covered by clauses (i) or (ii) mentioned above, the offender would be liable to be convicted under -( 18 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP Section 304 Part I IPC as it uses the expression "if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death" where intention is the dominant factor. However, if the offence is such which is covered by clause (iii) mentioned above, the offender would be liable to be convicted under Section 304 Part II IPC because of the use of the expression "if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death" where knowledge is the dominant factor.
12. What is required to be considered here is whether the offence committed by the appellant falls within any of the clauses of Section 300 IPC.
13. Having regard to the facts of the case it can legitimately be urged that clauses Firstly and Fourthly of Section 300 IPC were not attracted. The expression "the offender knows to be likely to cause death" occurring in clause Secondly of Section 300 IPC lays emphasis on knowledge. The dictionary meaning of the word 'knowledge' is the fact or condition of being cognizant, conscious or aware of something; to be assured or being acquainted with. In the context of criminal law the meaning of the word in Black's Law Dictionary is as under: -
"An awareness or understanding of a fact or circumstances; a state of mind in which a person has no substantial doubt about the existence of a fact. It is necessary ... to distinguish between producing a result intentionally and producing it knowingly. Intention and knowledge commonly go together, for he who intends a result usually knows that it will follow, and he who knows the consequences of his act usually intends -( 19 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP them. But there may be intention without knowledge, the consequence being desired but not foreknown as certain or even probable. Conversely, there may be knowledge without intention, the consequence being foreknown as the inevitable concomitant of that which is desired, but being itself an object of repugnance rather than desire, and therefore not intended."
In Blackstone's Criminal Practice the import of the word 'knowledge' has been described as under: -
"'Knowledge' can be seen in many ways as playing the same role in relation to circumstances as intention plays in relation to consequences. One knows something if one is absolutely sure that it is so although, unlike intention, it is of no relevance whether one wants or desires the thing to be so. Since it is difficult ever to be absolutely certain of anything, it has to be accepted that a person who feels 'virtually certain' about something can equally be regarded as knowing it."
36. Section 299 of Indian Penal Code runs as under :-
"299. Culpable homicide.-- Wheoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide."
Section 300 of Indian Penal Code runs as under :-
"300. Murder.-- Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or--
Secondly.-- If it is done with the intention of causing such bodily injury as the offender -( 20 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly.-- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
Fourthly.-- If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid."
37. 'Culpable Homicide' is the first kind of unlawful homicide. It is the causding of death by doing ; (i) an act with the intention to cause death; (ii) an act with the intention of causing such bodily injury as is likely to cause death; or, (iii) an act with the knowledge that it was likely to cause death.
38. Indian Penal Code reconizes two kinds of homicides :
(1) Culpable homicide, dealt with between Sections 299 and 304 of IPC (2) Not-culpable homicide, dealt with by Section 304-A of IPC. There are two kinds of culpable homicide; (i) Culpable homicide amounting to murder (Section 300 read with Section 302 of IPC), and (ii) Culpable homicide not amounting to murder (Section 304 of IPC).
39. A bare perusal of the section makes it crystal clear that the first and the second clauses of the section refer to intention apart from the knowledge and the third clause refers to knowledge alone and not the intention. Both the expression "intent" and "knowledge" postulate the existence of a positive mental attitude which is of different degrees. The mental element in culpable homicide i.e., mental attitude towards the consequences of conduct is one of intention and knowledge. If that is caused in any of the -( 21 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP aforesaid three circumstances, the offence of culpable homicide is said to have been committed.
40. There are three species of mens rea in culpable homicide. (1) An intention to cause death; (2) An intention to cause a dangerous injury; (3) Knowledge that death is likely to happen.
41. The fact that the death of a human being is caused is not enough unless one of the mental staes mentioned in ingredient of the Section is present. An act is said to cause death results either from the act directly or results from some consequences necessarily or naturally flowing from such act and reasonably contemplated as its result. Nature of offence does not only depend upon the location of injury by the accused, this intention is to be gathered from all facts and circumstances of the case. If injury is on the vital part, i.e., chest or head, according to medical evidence this injury proved fatal. It is relevant to mention here that intention is question of fact which is to be gathered from the act of the party. Along with the aforesaid, ingredient of Section 300 of IPC are also required to be fulfilled for commission of offence of murder.
42. In the scheme of Indian Penal Code, "Culpable homicide" is genus and "murder" is its specie. All "Murder" is "culpable homicide" but not vice versa. Speaking generally 'culpable homicide sans special characteristics of murder' if culpable homicide is not amounting to murder.
43. In Anda vs. State of Rajasthan [1966 CrLJ 171), while considering "third" clause of Section 300 of IPC, it has been observed as follows :-
"It speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. The emphasis here is on sufficiency of injury in the ordinary course of nature to cause -( 22 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP death. The sufficiency is the high probability of death in the ordinary way of nature and when this exists and death ensues and causing of such injury was intended, the offence is murder. Sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused, and sometimes both are relevant. The determinant factor is the intentional injury which must be sufficient to cause death in the ordinary course of nature."
44. In Mahesh Balmiki vs. State of M.P. [(2000) 1 SCC 319, while deciding whether a single blow with a knife on the chest of the deceased would attract Section 302 of IPC, it has been held thus :-
"There is no principle that in all cases of single blow Section 302 I.P.C. is not attracted. Single blow may, in some cases, entail conviction under Section 302 I.P.C., in some cases under Section 304 I.P.C and in some other cases under Section 326 I.P.C. The question with regard to the nature of offence has to be determined on the facts and in the circumstances of each case. The nature of the injury, whether it is on the vital or non-vital part of the body, the weapon used, the circumstances in which the injury is caused and the manner in which the injury is inflicted are all relevant factors which may go to determine the required intention or knowledge of the offender and the offence committed by him. In the instant case, the deceased was disabled from saving himself because he was held by the associates of the appellant who inflicted though a single yet a fatal blow of the description noted above. These facts clearly establish that the appellant had intention to kill the deceased. In any event, he can safely be attributed knowledge that the knife blow given by him is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death."
45. In Dhirajbhai Gorakhbhai Nayak vs. State of Gujarat [(2003) 9 SCC 322, it has been observed as under :-
-( 23 )- CRA No. 445/2009Shivcharan & Gorelal vs. State of MP "The Fourth Exception of Section 300, IPC covers acts done in a sudden fight. The said exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A 'sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to -( 24 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP be noted that the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.
46. In Pulicherla Nagaraju @ Nagaraja vs. State of AP [(2006) 11 SCC 444, while deciding whether a case falls under Section 302 or 304 Part-I or 304 Part-II, IPC, it was held thus :-
"Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls under Section 302 or 304 Part I or 304 Part II. Many petty or insignificant matters plucking of a fruit, straying of a cattle, quarrel of children, utterance of a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed, jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder -( 25 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP punishable under section 302, are not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii) whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre- meditation; (vii) whether there was any prior enmity or whether the deceased was a stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x) whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with reference to individual cases which may throw light on the question of intention. Be that as it may."
47. In Sangapagu Anjaiah v. State of A.P. (2010) 9 SCC 799, Hon'ble Apex Court while deciding the question whether a blow on the skull of the deceased with a crowbar would attract Section 302 IPC, held thus:
"16. In our opinion, as nobody can enter into the mind of the accused, his intention has to be gathered from the weapon used, the part of the body chosen for the assault and the nature of the injuries caused. Here, the appellant had chosen a crowbar as the weapon of offence. He has further chosen a vital part of the body i.e. the head for causing the injury which had caused multiple fractures of skull. This clearly shows the force -( 26 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP with which the appellant had used the weapon. The cumulative effect of all these factors irresistibly leads to one and the only conclusion that the appellant intended to cause death of the deceased."
48. In State of Rajasthan v. Kanhaiyalal (2019) 5 SCC 639, this it has been held as follows:
"7.3 In Arun Raj [Arun Raj v.
Union of India, (2010) 6 SCC 457 : (2010) 3 SCC (Cri) 155] this Court observed and held that there is no fixed rule that whenever a single blow is inflicted, Section 302 would not be attracted. It is observed and held by this Court in the aforesaid decision that nature of weapon used and vital part of the body where blow was struck, prove beyond reasonable doubt the intention of the accused to cause death of the deceased. It is further observed and held by this Court that once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows.
7.4 In Ashokkumar Magabhai Vankar [Ashokkumar Magabhai Vankar v. State of Gujarat, (2011) 10 SCC 604 : (2012) 1 SCC (Cri) 397] , the death was caused by single blow on head of the deceased with a wooden pestle. It was found that the accused used pestle with such force that head of the deceased was broken into pieces. This Court considered whether the case would fall under Section 302 or Exception 4 to Section 300 IPC. It is held by this Court that the injury sustained by the deceased, not only exhibits intention of the accused in causing death of victim, but also knowledge of the accused in that regard. It is further observed by this Court that such attack could be none other than for causing death of victim. It is observed that any reasonable person, with any stretch of imagination can come to conclusion that such -( 27 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP injury on such a vital part of the body, with such a weapon, would cause death.
7.5 A similar view is taken by this Court in the recent decision in Leela Ram (supra) and after considering catena of decisions of this Court on the issue on hand i.e. in case of a single blow, whether case falls under Section 302 or Section 304 Part I or Section 304 Part II, this Court reversed the judgment and convicted the accused for the offence under Section 302 IPC. In the same decision, this Court also considered Exception 4 of Section 300 IPC and observed in para 21 as under: (SCC para 21) "21. Under Exception 4, culpable homicide is not murder if the stipulations contained in that provision are fulfilled. They are: (i) that the act was committed without premeditation; (ii) that there was a sudden fight; (iii) the act must be in the heat of passion upon a sudden quarrel; and (iv) the offender should not have taken undue advantage or acted in a cruel or unusual manner."
49. In the case of Bavisetti Kameswara Rao v. State of A.P. (2008) 15 SCC 725 , it is observed in paragraphs 13 and 14 as under:
"13. It is seen that where in the murder case there is only a single injury, there is always a tendency to advance an argument that the offence would invariably be covered under Section 304 Part II IPC. The nature of offence where there is a single injury could not be decided merely on the basis of the single injury and thus in a mechanical fashion. The nature of the offence would certainly depend upon the other attendant circumstances which would help the court to find out definitely about the intention on the part of the accused. Such attendant circumstances could -( 28 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP be very many, they being (i) whether the act was premeditated; (ii) the nature of weapon used; (iii) the nature of assault on the accused. This is certainly not an exhaustive list and every case has to necessarily depend upon the evidence available. As regards the user of screwdriver, the learned counsel urged that it was only an accidental use on the spur of the moment and, therefore, there could be no intention to either cause death or cause such bodily injury as would be sufficient to cause death. Merely because the screwdriver was a usual tool used by the accused in his business, it could not be as if its user would be innocuous.
14. In State of Karnataka v. Vedanayagam [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] this Court considered the usual argument of a single injury not being sufficient to invite a conviction under Section 302 IPC. In that case the injury was caused by a knife. The medical evidence supported the version of the prosecution that the injury was sufficient, in the ordinary course of nature to cause death. The High Court had convicted the accused for the offence under Section 304 Part II IPC relying on the fact that there is only a single injury. However, after a detailed discussion regarding the nature of injury, the part of the body chosen by the accused to inflict the same and other attendant circumstances and after discussing clause Thirdly of Section 300 IPC and further relying on the decision in Virsa Singh vs. State of Punjab [AIR 1958 SC 465] , the Court set aside the acquittal under Section 302 IPC and convicted the accused for that offence. The Court (in Vedanayagam case [(1995) 1 SCC 326 : 1995 SCC (Cri) 231] , SCC p. 330, para 4) relied on the observation by Bose, J. in Virsa Singh case [AIR 1958 SC 465] to suggest that: (Virsa Singh case [AIR 1958 SC 465], AIR p. 468, para 16) "16. With due respect to the learned Judge he has linked up the intent required with the seriousness of the -( 29 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP injury, and that, as we have shown, is not what the section requires. The two matters are quite separate and distinct, though the evidence about them may sometimes overlap."
The further observation in the above case were:
(Virsa Singh case [AIR 1958 SC 465] , AIR p. 468, paras 16 & 17) "16. The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present. If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intent that the section requires is not proved. But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it. Whether he knew of its seriousness, or intended serious consequences, is neither here nor there.
The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. But whether the intention is there or not is one of fact and not one of law. Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question.
17. ... It is true that in a given case the enquiry may be linked up with the seriousness of the injury. For example, if -( 30 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder. But that is not because the prisoner did not intend the injury that he intended to inflict to be as serious as it turned out to be but because he did not intend to inflict the injury in question at all. His intention in such a case would be to inflict a totally different injury.
The difference is not one of law but one of fact."
50. In the light of above annunciation of law laid down by Hon'ble Apex Court, the evidence available on record in the present case is required to be considered.
51. Dr. Milind Bhagat (PW-13) has stated that he was on duty in District Hospital, Guna on 6.1.2008. On that day, Haricharan Meena, Constable of Police Station Cantt had brought the body of deceased Ramesh for post-mortem. He conducted post-mortemd. Post-mortem report is Ex.P/19. This witness has stated that various injuries were found on the body of the deceased, which are as follows :-
(i) Lacerated wound on chin, size 1cm x 0.5cm x 0.3;
(ii) Lacerated wound on lower lip midline, size 2cm x 1cm x 0.5cm;
(iii) Lacerated wound on left cheek, size 1cm x 0.5cm x 0.5 cm;
(iv) Lacerated wound on left temporal region, size 1cm x 0.5cm x 0.3 cm.;
(v) Lacerated wound on left parietal region, size 3cm x 0.5cm x bone deep;
(vi) Lacerated wound on right parietal region, size 2cm x 1cm x bone deep;
(vii) Bruise on right side of chest 6cm x 6m;
(viii) Lacerated wound kateral side on right elbow, -( 31 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP size 1cm x 1cm x 0.5 cm
(ix) Abrasion on left ankle lateral side, size 1cm x 1 cm This witness has also stated that he found depressed fracture on left and right side of parietal bone and linear fracture of the right parietal bone. The injuries were caused by hard and blunt object and injuries of skull and brain were grievous and fatal and were the cause of death. The injuries were inflicted within 24 hours of the post-mortem. That means, the deceased died due to injuries inflicted to him and his death is culpable homicide.
52. It is most relevant to mention here that the place of incident is the house of deceased Shivcharan. On perusal of record it is apparent that no injury was found over the body of appellants/accused persons after the incident. No MLC of the appellants was conducted. No weapon was seized from the place of incident, which was alleged to be the weapon used by the deceased. The appellant No.1-Shivcharan had caused lathi blows on the head, mouth and limbs of the deceased and the deceased died due to injuries so caused to him.
53. From the place of incident blood-stained soil and plain soil was seized and two teeth were also seized vide Ex.P/4. Clothes of the deceased and lathi etc. were sent to FSL Gwalior. The relevant witnesses of seizure have supported the prosecution case.
54. Complainant Vimlabai (PW-1) stated in para 7 of her statement that her husband was drunk on the date of incident. She has also admitted in para 4 of her examination-in-chief that when her husband fell down, Gorelal came and caused hurt by shoes on the head of the deceased. She has stated as under :-
"tc tku fudy xbZ rc xksjsyky vkdj jes'k -( 32 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP ls psaV x;kA"
That means, against appellant No.2-Gorelal the only allegation is that he hit the head of the deceased by shoes after his death, however, no such injury which could be caused by shoes were found on the head of the deceased.
55. Vimlabai (PW-1) has supported the prosecution story except as stated in previous para and has stated that Gorelal is father of deceased Ramesh and her father-in-law and Shivcharan is her brother-in-law. The appellants reached on the spot at around 5 pm when her husband was eating food sitting at door of her house. Shivcharan was having lathi and as soon as Shivcharan reached there, he caused lathi blows on the head, mouth, back and limbs of the deceased Ramesh. On account of that her husband fell down, thereafter Gorelal hit the deceased by shoes. She has also stated in para 4 of her statement that no one from the village came there for her husband's rescue.
56. Mishrilal (PW-3), Marobai (PW-5), Ku. Bharti (PW-6), Harnarayan (PW-9) are the witnesses, who reached on the spot after the incident. Mangal Singh (PW-2) and Munnalal (PW-
4) have not supported the case of prosecution. Ku. Bharti (PW-6) is the child witness. She is not an eye-witness to the incident as accepted by her that at the time of incident she had gone for she- goats grazing. Vimlabai (PW-1) has also supported aforesaid statement of Ku. Bharti (PW-6). Ramesh Puri (PW-12) and Pooran Dheemar (PW-14) also reached at the place of incident after commission of offence.
57. On perusal of entire prosecution evidence it is apparent that no witness has stated anything against appellant No.2-Gorelal in respect of inflicting injury to the deceased nor any -( 33 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP witness has stated that the aforesaid act was committed by Gorelal in furtherance of common intention. The facts and circumstances of the case are also showing the same situation that if there had been any common intention then appellant Gorelal would also be having any weapon, such as, lathi etc. but he was not having any weapon which reflects that there was no common intention. Furthermore, prosecution witnesses Ramesh Puri (PW-12) and Puran Dheemar (PW-14) reached on the spot just after the incident. Puran Dheemar (PW-14) has stated in para 2 of his statement that when he reached on the spot, he saw that appellant No.2-Gorelal was sitting by the side of the deceased and was weeping.
58. On perusal of Lash Panchnama (Ex.P/2) it is apparent that while proceeding with regard to Ex.P/2 was done, Gorelal was present but Shivcharan remained absconding. Similarly, on perusal of Ex.P/3 Naksha Panchayatnama, it is also apparent that Gorelal was one of the witnesses to the aforesaid proceeding, which reflects the conduct of appellant/accused Gorelal that he was not having intention to commit any offence, rather if we consider as a whole it is gathered that Gorelal had not committed offence. On the other hand, the modes operandi of other co-accused Shivcharan reflects that the act was done by him which resulted in culpable homicide amounting to murder of deceased.
59. Therefore, considering the aforesaid evidence along with law discussed above, we are of the considered opinion that prosecution has failed to prove the allegations against appellant No.2-Gorelal. Therefore, appellant No.2-Gorelal is hereby acquitted of the charges under Section 302 or Section 302 read with Section 34 of IPC.
60. Now it is to be seen whether the act done by appellant -( 34 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP No.1-Shivcharan comes within the purview of right of private defence ?
61. In Madan Mohan Pandey vs. State of UP [(1991) Cr LJ 467(SC)], Hon'ble Apex Court has held as under :
"In judging whether accused has exceeded his right of private defence or not, the court has to take into account the weapon used."
62. In Rasikbhai Ram Singh Rana v. State of Gujarat [1999 (1) Guj CR 176], it has been held as under :-
"The defence version regarding accused acting in self defence was liable to be proved by accused."
63. In Rizan vs. State of Chattisgarh [AIR 2003 SC 976], it is observed as under :-
"Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the cast that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self- defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record."
64. In Arjun vs. State of Maharashtra [AIR 2012 SC 2181], Hon'ble Apex Court has observed as under :-
"Right of private defence is available only when there is a reasonable apprehension of receiving injury. Injury which is inflicted by a person exercising the right should be commensurate with the injury with which he is threatened. Right of private defence cannot be used to do away with a wrongdoer unless the person concerned has a reasonable cause to fear that otherwise death or grievous hurt -( 35 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP might ensure in which case that person would have full measure of right to private defence."
65. In Ranjitham vs. Basavaraj [(2011) 13 SCALE 221], it is observed as under :-
"Right of private defence cannot be weighed in a golden scale and even in absence of physical injury, in a given case, such a right may be upheld by the court provided there is reasonable apprehension of life or reasonable apprehension of a grievous hurt to a person."
66. As per provisions regarding right of private defence as quoted above, it is apparent that the injury inflicted must be rational, if it is inflicted in the exercise of right of private defence. Under Section 101 of IPC it is clear that the right of private defence of the body does not extend to the voluntary causing of death to the assailant, but does not extend, under the restrictions mentioned in section 99, to the voluntary causing to the assailant of any harm other than death. In the present case the appellant No.1-Shivcharan has exceeded the restrictions made under Section 99 of IPC.
67. From perusal of the record it is evident that no weapon was seized from the deceased rather at the time of incident, rather the deceased was eating food and was sitting at the door of his house. Appellant No.2-Shivcharan had caused various lathi blows on the head, mouth and other parts of the body of deceased Ramesh and as per statement of Dr. Milind Bhagat (PW-13), the death was caused due to head injuries which were inflicted by hard and blunt object and injuries were within 24 hours of post-mortem. As the injuries inflicted by appellant No.1- Shivcharan were not rational and there is no any circumstance under which it could be gathered that there was any quarrel or the -( 36 )- CRA No. 445/2009 Shivcharan & Gorelal vs. State of MP deceased attacked on the accused/appellant Gorelal, and appellant Shivcharan while rescuing his father Gorelal exercised the right of private defence. Therefore, the defence raised with regard to right of private decfence cannot be availed by appellant No.1- Shivcharan.
68. In the light of the foregoing discussion, we are of the considered opinion that the trial Court did not err in convicting and sentencing appellant No.1-Shivcharan. Hence, the appeal of Shivcharan is devoid of merits.
69. Resultantly, the appeal of appellant No.1-Shivcharan is hereby dismissed and his conviction and sentence passed by the trial Court under Section 302, I.P.C. is hereby confirmed. Appellant No.1-Shivcharan is in jail. He be intimated with the result of this appeal through the concerning Jail Superintendent. The appeal of appellant No.2-Gorelal is hereby allowed. Appellant Gorelal is acquitted of the charges under Section 302 or Section 302 read with Section 34 of IPC. Appellant Gorelal is serving his sentence in the concerned jail. Appellant Gorelal be intimated with the result of his appeal through the concerned Jail Superintendent and he be released forthwith, if he is not required in any other crime.
70. With the aforesaid modification in the judgment of conviction and sentence passed by the trial Court, present appeal stands disposed of.
Let a copy of this judgment along with record of the trial Court be sent back immediately.
(G.S.Ahluwalia) (Rajeev Kumar Shrivastava)
(Yog) Judge Judge
YOGESH VERMA
2021.08.18
VALSALA
VASUDEVAN
2018.10.26
15:14:29 -07'00'
12:50:59 +05'30'