Madan & Ors. Vs.
State of M.P.  INSC 1093 (11 July 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2008 (Arising
out of SLP (Crl.) No. 6777 of 2007) Madan and Ors. ...Appellants versus State
of Madhya Pradesh ...Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of Madhya Pradesh High
Court, Indore Bench upholding the conviction of the appellants for offence
punishable under Section 302 read with Section 149 and Section 323 read with
Section 149 of the Indian Penal Code, 1860 (in short the `IPC'). Each of the
appellants was sentenced to undergo RI for life and to pay a fine of Rs.1,000/-
with default stipulation.
prosecution case as unfolded during trial is as follows:
In the intervening
night of 3rd and 4th July, 1991 at about 12.00 in village Khandakhedi Kishanlal
(hereinafter referred to as the `deceased'), his wife Sampatbai and daughter
Premlatabai were sleeping inside their house. At that moment appellants and
deceased accused Jalu @ Jalamsingh and juvenile accused Jeevan reached at their
house. They broke open the wooden door, while abusing the inmates and reached
in the courtyard. They told deceased Kishanlal that they would not permit him
to take his she-buffallows from their field and asked as to why deceased made a
complaint in Tehsil/Revenue Court. They also threatened to eliminate him.
While saying all
these, appellants Madan and Kamal caught 2 hold both the hands of Kishanlal and
threw him near the wall, thereafter assaulted him by lathi. Sampatbai, wife of
deceased Kishanlal (PW-2) cried for help. She and her daughter Premlata (PW-1)
tried to save deceased but both were assaulted by lathi. Umraobai (PW-3) was
assaulted by the deceased accused Jalu @ Jalamsingh when she tried to rescue
the deceased. Babulal (PW-7) after hearing the cry reached over there and he
was also assaulted by accused persons.
When Ramsingh (PW-8)
and Premsingh (PW-9) arrived, appellants fled away. The deceased fell
unconscious and died on the way to police station. Premlata (PW-1), Sampatbai,
Umraobai, Babulal, Premsingh alongwith village Chowkidar Anarsingh reached at
the police station at 4.00 a.m. and lodged the report (Ex.P-1) which was
recorded by SHO (PW-12) Nandlal. The injured persons were sent for medical
examination and treatment. Their medical reports are Ex.P-24 to P-28. After
preparation of inquest report (Ex.P-11) dead body of Kishanlal was sent to hospital
and postmortem was conducted by Dr. A.S. Rana (PW-13) who issued postmortem
report (Ex.P-29). Investigating Officer prepared spot map 3 (Ex.P-2) and also
effected seizure of blood stained earth, controller earth, pieces of sticks
vide Ex.P-3 from the spot.
Through seizure memo
(Ex.P-4) pieces of bangles, pieces of glass of watch and roof tiles were
seized. Patvari Govindram (PW-6) prepared the spot map (Ex.P-10). After arrest,
on disclosure statement of the accused persons lathis were seized and seized
articles were sent with covering letter (Ex.P-23) to FSL, Sagar. Dr. Rana also
gave report (Ex.P-30) after examination of lathis seized from the accused
persons. On completion of the investigation charge sheet was filed before the
learned JMFC, Sanwer against the appellants and deceased accused Jalu @ Jalam
and juvenile accused Jeevan was produced and charge sheeted before the juvenile
Court as directed by the trial Court because he was found below 16 years of
age. During the course of trial, accused Jalu @ Jalamsingh died, therefore,
case against him was closed.
The appellants denied
the charges and pleaded innocence. They examined three witnesses in defence
whereas prosecution examined 15 witnesses and adduced 31 4 documents in
evidence. The trial Court found the appellants guilty, convicted them as
Before the High Court
the stand taken was to the exercise of the right of private defence. It was
pointed out that the deceased and prosecution witnesses were aggressors. In any
event, when the appellants had assaulted, then in right of private defence they
are entitled to get the benefit of exception in terms of Sections 96 and 97
IPC. The High Court turned down the stand and upheld the conviction.
support of the appeal, learned counsel for the appellants submitted that most
of the injuries were on non vital parts. It has been established that injuries
have been sustained by the appellants in the same incident. The High Court had
exercised the appellate power under Section 386 (b) (ii) of the Code of
Criminal Procedure, 1973 (in short the `Code') and had altered the finding of
the trial Court in para 27 that the appellants were injured in the same
incident in which the deceased and injured witnesses were assaulted and it was
5 held that as per own saying by the defence the appellants sustained injuries
at the house of the appellant-Kamal. In essence, it was pointed out that the
trial Court and the High Court should have accepted the plea of exercise of
right of private defence.
counsel for the respondent-State on the other hand submitted that there was
injury on the head though there was no fracture and the rest were on non vital
parts of the body. Nevertheless, even according to own saying of the accused
appellants, there was no question of exercise of right of private defence.
plea of right of private defence cannot be based on surmises and speculation.
While considering whether the right of private defence is available to an
accused, it is not relevant whether he may have a chance to inflict severe and
mortal injury on the aggressor. In order to find whether the right of private
defence is available to an accused, the entire incident must be examined with
care and viewed in its proper setting. 6 Section 97 IPC deals with the subject-matter
of right of private defence. The plea of right comprises the body or property
(i) of the person exercising the right; or (ii) of any other person; and the
right may be exercised in the case of any offence against the body, and in the
case of offences of theft, robbery, mischief or criminal trespass, and attempts
at such offences in relation to property. Section 99 IPC lays down the limits
of the right of private defence. Sections 96 and 98 IPC give a right of private
defence against certain offences and acts. The right given under Sections 96 to
98 and 100 to 106 IPC is controlled by Section 99 IPC. To claim a right of
private defence extending to voluntary causing of death, the accused must show
that there were circumstances giving rise to reasonable grounds for
apprehending that either death or grievous hurt would be caused to him. The
burden is on the accused to show that he had a right of private defence which
extended to causing of death. Sections 100 and 101, IPC define the limit and
extent of right of private defence.
102 and 105, IPC deal with commencement and continuance of the right of private
defence of body and property respectively. The right commences, as soon as a
reasonable apprehension of danger to the body arises from an attempt, or
threat, or commit the offence, although the offence may not have been committed
but not until that there is that reasonable apprehension. The right lasts so
long as the reasonable apprehension of the danger to the body continues.
In Jai Dev v. State
of Punjab (AIR 1963 SC 612), it was observed that as soon as the cause for
reasonable apprehension disappears and the threat has either been destroyed or
has been put to route, there can be no occasion to exercise the right of
above position was highlighted in Rizan and Another vs. State of Chhattisgarh,
through the Chief Secretary, Govt. of Chhattisgarh, Raipur, Chhatttisgarh (2003
(2) SCC 661), and Sucha Singh and Anr. v. State of Punjab (2003 (7) SCC 643)
and Raj Pal and Ors. v. The State of Haryana (2006 (9) SCC 678).
High Court observed that according to the appellants incident occurred in two
difference places in difference phases and in the incident of assault to the
deceased and the witnesses they were not present and they sustained injuries
caused by the deceased and some of the injured witnesses at the house of Kamal.
The High Court has in part accepted the stand of the appellants that they were
exercising the right of private defence, but at the same time the evidence also
shows that the appellants committed criminal trespass. Therefore, they cannot
claim the benefit of exception of having acted in exercise of right of private
a combined reading of the judgments of the trial Court and the High Court it is
clear that the evidence is to the effect that the accused appellants were upto
some stage exercising the right to protect and defend their properties. But
thereafter they exceeded the right. Therefore, this appears to be a case where
instead of convicting the appellants under Section 302 IPC it would be proper
to convict the appellants for offence punishable under Section 304 Part I, IPC.
Custodial sentence of 10 years would meet the ends of justice.
appeal is allowed to the aforesaid extent.
(Dr. ARIJIT PASAYAT)