State of
U.P. Vs. Laeeq [1999] INSC 161 (22 April
1999)
G.T.
Nanavati, & S.P. Kurdukar. Nanavati.J
JUDGMENT
The
State has filed this appeal as respondent Laeeq, who was convicted by the trial
Court for the offence punishable under Section 304 IPC, has been acquitted by
the High Court.
Laeeq
was tried along with three others for committing murder of Ashfaq Hussain and
causing injuries to Mohd. Yaseen, Ayub, Chhotey and Nathu. The trial Court did
not believe the evidence of the eye-witnesses as regards the genesis of the
incident and gave benefit of doubt to accused Mohd. Noor, Qayum Abdul Qayaum
and Arshad and acquitted them. The role played by the respondent Laeeq was
believed but giving him benefit of exception (4) to Section 300 IPC convicted
him under Section 304 IPC and sentenced him to suffer imprisonment for life. Aggreived
by the acquittal of the other three accused, State filed an appeal before the
High Court and aggreived by the order of his conviction, Laeeq also filed an
appeal before the High Court. Both the appears were heard together. The High
Court dismissed State's appeal against acquittal and allowed the appeal of the
respondent Laeeq. The State, therefore, filed two special leave petitions in
this Court, out, leave was granted only against acquittal of Laeeq and the
special leave petition against the other three accused was dismissed. Thus)
Criminal Appeal No. 357 of 1989 really stood dismissed because no leave was
granted in that case.
Only
Criminal Appeal No. 357A survives for consideration.
The
High Court after reappreciating the evidence has held that " The
possibility of Laeeq Ahmad accused having given a knife blow to the deceassed
and the injuries found on the person of Mohammad Yasin (P.W.I), Chhotey (P.W.2)
and Ayub having been received after the accused had been assaulted with dandas
by him, Nathu, Chhotey (P.W.2) and Ashfaq Hussein deceased cannot be
excluded." Thus, believing the defence version that the respondent had
caused the said injury in exercise of right of private defence, the High Court
acquitted the respondent.
What
is urged by the learned counsel for the State is that the High Court has failed
to consider that in any case, the respondent had exceeded the said right as he
did not have reasonable apprehension of death, or grievous hurt when he had
inflicted the fatal blow on the deceased.
After
going through the record we find that neither in cross examination of the
witnesses it was suggested nor in his statement under Section 313 Cr.P.C. the
respondent had stated that he had given the kinfe blow to the deceased while he
feared death or grievous injury from the deceased or the persons who were with
the deceased. Before the trial Court the plea raised on behalf of the
respondent was that all the accused had wielded sticks in self defence. The
trial Court rightly did not accept the version of the defence as the injury
which was found on the person of the deceased was an incised wound possible by
a sharp cutting instrument. The High Court has thought it fit to believe the
version of the respondent, that the knife blow was given by him while he was
trying to defend himself. The respondent, however, has, not stated specifically
under what circumstances he gave the knife blow to the deceased. Such a vague
plea cannot justify causing of death. As provided by Section 100 I.P.C. right
of private defence extends to voluntary causing of death of the assailant if
the assuit is such as would reasonably cause an apprehension that death or
grievous hurt would otherwise be the consequence. There is no material on
record from which it is possible to draw such an inference. As stated earlier,
the plea raised by the respondent is vague and does not explain the
circumstances under which he gave the fatal blow. The material on record does not
show that the complainant side was armed with weapons other than sticks. The
material also does not show that the deceased had aimed a stick blow at the
respondent or any other person accompanying him when he had given the knife
blow. Even if the defence version as accepted by the High Court 1s believed it
only indicates that the deceased and the persons along with him had started the
assault on the respondent and his co-accused by wie1ding their sticks but it
does not further probablise causing of death under reasonable apprehension of
death or grievous hurt. The required justification for causing death "in
exercise of right of self defence was neither pleaded specifically nor the
material on record probalises the same. Without considering this aspect the
High Court gave the benefit of the exception and acquitted the respondent,
Therefore, the judgment of the High Court and the acquittal of the respondent
deserve to be set aside and it will have to be held that the respondent
exceeded the right of private defence when he gave the fatal knife blow to the
deceased.
Accordingly,
we hold him guilty for the offence punishable under Section 304 I.P.C.
Considering the facts and circumstances of this case we are of the view that
ends of justice would be met if the respondent is sentenced to suffer rigorous
imprisonment for five years for committing the offence.
In the
result this appeal is partly allowed. The judgment of the High Court and the
acquittal of the respondent are set aside and the respondent is convicted under
Section 304 I.P.C. and sentenced to suffer rigorous imprisonment for five
years. The respondent is directed to surrender to custody to serve out the
remaining part of his sentence.
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