A. Chudasama Vs. State of Gujarat  INSC 810 (4 November 1997)
MUKHERJEE, K.T. THOMAS
4TH DAY OF NOVEMBER, 1997 Present:
Mr. Justice M. K. Mukherjee Hon'ble Mr. Justice K. T. Thomas Yashank Adhyaru, Manoj
Wad, Advs. for Ms. J. S. Wad, Adv.
Wahi and Ms. Neithono Rhetso, Advs. for the Respondent.
following Judgment of the Court was delivered:
armed constable of Special Reserved Police (SRP) shot at his immediate superior
(Head Constable) while the latter was perambulating around Khampla Dam site (in
Gujarat State) during dusk hours of a cloudy day in July 1983. The victim
died on the spot. Appellant was charged and tried for murder, but the trial
judge entertained doubt about his complicity and acquitted him. However, a
Division Bench of the High Court of Gujarat, while re-appraising the whole
evidence on an appeal filed by the State, felt no speck of doubt that it was a
cold-blooded murder perpetrated by the appellant. Accordingly, the acquittal
was reversed and the appellant was sentenced to imprisonment for life.
Appellant thus became entitled to file his appeal, as of right, under Section 2
of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act,
victim of the gun shot was Ukadbhai Radvabhai. Head Constable of S. R. P. who
was posted along with other police personnel at Khampla Dam site which was then
in danger on account of heavy rainfall. Appellant was allotted to the same
platoon and was placed below the deceased. Some Skirmishes developed and
deceased had taken the appellant to task on the ground of dereliction in the
discharge of the work allotted to him.
case is that appellant was of a truculent temperament and as he did not lightly
take the diatribe hurled against him by the deceased he was groping for a
suitable opportunity to retaliate. On the evening of 2.7.1983 had noted the
appellant walking near the tower of the Dam. He aimed his rifle at the deceased
and pumped four bullets into his vital parts which caused his end in a trice.
examination of the dead body revealed, inter alia, one fire arm wound on the
back of the right shoulder with blackening of the skin and its exit wound was
on the left axilla with a big hollow cavity through which lung tissues
protruded; another entry wound on the right scapula, its exit wound on the 5th
vertebra with tearing of skin and muscle over an area of 3" x 3",
another entry wound below the left gluteal fold with balckening of the skin and
its exit would was on the upper gluteal fold. There was no dispute that death
of deceased was due to piercing of bullets from a fireman.
this case appellant did own the act of firing the rifle. He adopted the
following defence which he submitted in writing before the trial court when he
was examined under Section 313 of the Code of Criminal Procedure, the material
portions of which extracted below:
was doing patrolling duty with the service rifle, and at about 7.45 P.M. when it was absolute dark I came near the bridge for
proceeding towards the value tower. Then I saw a flame near the tower and saw
somebody moving. I suspected that some miscreant was about to commit mischief
with fire on the valve tower. As I could not identify the moving person due to
want of light I shouted at him to stop.
there was no reply. So I proceeded further and repeated the shout, and still
there was no reply. I had to open fire in discharge of may duties. I heard the
sound of something falling down. I then reported the incident to the persons
who were in the office. When constable Laxmansinh (PW-2) and Jayantrajsinh
(PW-3) arrived after seeing the body of the victim they informed me that it was
Ukadbhai Radvabhai who received bullet injuries." Trial court felt that
the defence version is quite probable and hence he is entitled to the benefit
Court found that the trial court went perversely wrong in entertaining such a
doubt on the facts of the case. High Court took particular not of certain circumstances
which showed that appellant was nutring grouse against the deceased.
B-15 report prepared by the deceased containing a complaint that appellant
committed acts of dereliction of duties and that when appellant was warned
about it he burled invectives against the deceased and left the work place in a
huff. Deceased expressed his apprehension, in Ext. B-15, that appellant might
do something in revenge and so he made a request to his platoon commander to
shift the appellant to some other section.
- a colleague of both deceased and appellant - narrated the incident which ensued
exchange of words between appellant and deceased. The witness also said that
when he knew about Ext. P-15 report he snatched it from the deceased and prevailed
upon him to desist from forwarding it to the superiors, but later when he heard
that the appellant was fuming with acerbity towards the deceased he returned
Ext. P-15 to him. One most important circumstance is, Ext. P-15 report was
collected by the police from the bag of the deceased after his death. There is
no dispute regarding the authorship of that report.
evidence in this case, in the light of the admissions made by the appellant,
has narrowed down to the following points: Appellant had fired his rifle and
the deceased who was on his duty, sustained the bullet injuries and died. As
the High Court observed, it would have been a close range firing. This could be
inferred from the blackening of the skin around two entry wounds.
counsel for the appellant first contended that since appellant was discharging
his official duties he is entitled to acquittal. No person can claim immunity
from culpable homicide merely on the ground that the killed another person in
discharge of his official duties unless such killing would fall within the
ambit of any of the exceptions enumerated in Chapter IV of the IPC. Pitted
against the said legal position learned counsel made an endeavour to bring it
within the scope of Section 80 of IPC which reads thus;
is an offence which is done by accident or misfortune, and without any criminal
intention of knowledge in the doing of a lawful act in a lawful manner by
lawful means and with proper care and caution." The primordial requirement
of the said exception is that the act which killed the other person should have
been done "with proper care and caution". The very fact that accused
shot his own colleague at close range without knowing the identity of his
target smacks of utter death of any care and caution. It appears to us that
appellant did not even remotely entertain the idea putting forward a plea that
his act of killing the deceased was done by accident or misfortune, leave apart
the other ingredients necessary to form the right under the said exception.
Argument on that score, therefore, deserves rejection outright at the
counsel, alternatively, contended that the act of appellant can be justified
under Section 103 of the Penal Code. That section protects a person who
voluntarily caused death of another person in exercise of the right of private defence
of property " if the offence, the committing of which, or the attempting
to commit which, occasions the exercise of the right, will be an offence of any
of the descriptions hereinafter command namely:- First - Robbery:- Secondly, -
House - breaking by night;
- Mischief by fire committed on any building, tent or vessel, which building,
tent or vessel is used as a human dwelling, or as a place for custody of
Theft, mischief or house - trespass, under such circumstances as may reasonably
cause apprehension that death or grievous hurt will be the consequence, if such
right of private defence is not exercised.
doubt, right of private defence would command when a reasonable apprehension of
danger to property commences and such right can extend to the killing another
person even if there was only an attempt to commit any of the offences
mentioned in the section. The right subsumed in the section is an expansion of
the basic right of private defence founded in Section 97. When the two sections
are telescoped with each other the right of private defence can be stretched up
to the extent of killing another person in defending the property of not only
his own but even of another person. Such right would be available to a public
servant if the property sought to be protected is a public property. But there
is a condition for claiming such an extended right if the property sought to be
protected is a building. It should be a building used for human dwelling or for
custody of property. If it is not a building of that type the person exercising
right of private defence cannot go to the farthest extent of killing another
person unless the threatened mischief has caused a reasonable apprehension that
death or grievous hurt would otherwise be the consequence.
this case there was no pleas at all that appellant had any apprehension of
death or grievous hurt. Nor is there a case that the tower (which he feared to
have been under threat of incineration) was either used for human dwelling or
custody of property. Hence, there is no question of countenancing the extended
right of private defence envisaged in Section 103.
if the building was not for the above use and even if appellant had no
apprehension of death or grievous hurt, still a restricted right of private defence
can be claimed by a person which is adumbrated in Section 104 of IPC:"
"If the offence, the committing of which , or the attempting to commit
which, occasions the exercise of the right of private defence, be theft,
mischief, or criminal trespass, not of any of the descriptions enumerated in
the last preceding section, that right does not extend to the voluntary causing
of death, but does extend, subject to the restrictions mentioned in Section
199, to the voluntary causing to the wrong-doer of any harm other than
death." Now, the question is whether appellant is entitled to the
aforesaid restricted right of private defence of property.
accused who pleads any of the exceptions under Chapter IV has to prove it since
law has cast the burden on him in such situation. Under Section 106 of the
Evidence Act the court will presume the absence of it, Of course, the standard
of such proof is not akin to that of the prosecution to prove the guilt of the
accused. It is trite law that such burden can be discharged by the accused
showing a preponderance of probabilities.
put forward a case for right of private defence only when he was examined by
the trial court under Section 313 of the code. High Court has noted that the
has not disclosed to any of the prosecution witnesses that the was unable to
identify his immediate superior and thought him to be a miscreant and observed
that "no such question with regard to the mistaken identity was put to any
other prosecution witnesses during the cross-examination." On the other
hand, PW-12 (another SRP personnel who was also on duty) has deposed that he
saw the appellant scampering away from the scene of occurrence and that when he
was confronted he blurted out that he was proceeding to surrender himself since
he had fired at the deceased. To none the appellant said that the fired the
rifle for protecting the tower. To none he disclosed that the first had a
glimpse of flame which he thought to be the movement of a miscreant, In fact
when the dead body and the surroundings were closely examined by the police
they did not come across any material which could have given any mistaken
impression to the appellant as flame of a torch. Thus, the belated claim of
right of private defence was far from the contemplation of the appellant when
he opened the fire at the deceased.
light of the aforesaid discussion there is no scope to conclude that appellant
had any right of private defence to property. Accordingly, we confirm the
conviction and sentence and dismiss the appeal.