MADAN AND ORS. v. STATE OF MADHYA PRADESH

Citation: [2008] 10 S.C.R. 855

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, P. SATHASIVAM

Case summary

MADAN AND ORS. v. STATE OF MADHYA PRADESH.pdf

Judgment text

(2008] 10 S. C. R. 855 MADAN AND ORS. v. STATE OF MADHYA PRADESH (Criminal Appeal No. 1058 of 2008) JULY 11, 2008 ~ [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ. ] Penal Code, 1860: s. 302 r. w. s. 149 - Evidence Act, 1872 - ss. 97 to 105 - Right of private defence -Appellants entered the house of the deceased at night- Assaulted him with lathis resulting in his death - Trial Court convicted them under ss. 302 t: w. s. 149 and sentenced to life imprisonment - High Court turned down the plea of right of private defence, however altered the finding of trial Court that appellants were injured in the same incident in which the deceased and injured witnesses were assaulted - On appeal, Held. : Evidence show "' -+ that the appellants were up to some stage exercising the right to protect and defend their properties - But thereafter they exceeded the right - Therefore, conviction altered to one u/ s. 304 Part I - In the interest ofjustice, sentence reduced to 10 years. Evidence Act, 1872 - ss.

97 to 105 - Right of private defence - Exercise of, when available. The prosecution case was that on the fateful night .. ~ the deceased, his wife PW-2 and his daughter PW-1 were sleeping inside their house. The appellants along with other 2 accused broke open the wooden door and while abusing the inmates, reached inside the courtyard. They told deceased that they would not allow him to take his buffallows from their field and asked as to why deceased made a complaint in Tehsil Court. They also threatened to eliminate him. Thereafter they assaulted deceased with -~ lathi. When PW-1 and PW-2 tried to save the deceased, they were also assaulted. The deceased fell unconscious and died on way to Police Station. The Trial Court, convicted them under s. 302 IPC r. w. s. 149 and s. 323 r. w. s. 149 IPC and sentenced to life imprisonment. On appeal, High Court turned down the. stand of appellants that they exercised dght of private defence.

High Court however al- 8 tered the finding of trial Court that appellants were injured y- . :_ iii the same incident in which the deceased and injured witnesses were assaulted. Hence the present appeal. Partly allowing the appeal, the Court · · HELD: 1. A 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. [Para 6] [859-G, SSO~A,B]. JaiDev . v. State ofPunjab AIR (1963) SC 612; Rizan and Anr. v. State of Chhattisgarh, through the Chief Secretary, Govt. of Chhattisgarh, Raipur, Chhatttisgarh (2003) 2 SCC 661; Sucha Singh and Anr. v. State of Punjab (2003) 7 SCC 643; Raj Pal and Ors. v.

The State of Haryana (2006) 9 SCC 678. - relied on. 2. The High Court has in part; accepted the stand of the appellants that they were exercising the right of pri~ vate 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 defence. On 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 s. 302 IPC it would be proper to convict the appellants for offence punishable under s. 304 Part I, IPC. Custodial sentence of 10 years would meet the ends of justice. [Paras 9,10] [861-C,D,E] .. .. , CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No.

1058 of 2008 From the final Judgment and Order dated 18. 5. 2007 of the High Court of Madhya Pradesh, bench at Indore in Crl. Appeal No. 1246 of 1997 Navin Kumar Singh and Aruneshwar Gupta for the Appel- Iants. Dr. N. M. Ghatate, C. D. Singh, Merusagar Samantaray and Sunny Chowdhary for the Respondent. -; .. ,. The Judgment of the Court was delivered by Dr. ARIJIT PASAYAT, J. 1. Leave granted. 2. Challenge 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. 3. The prosecutiorJ,- 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. 7. Sections 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 appre- ~ hension 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 private defence. 8. The 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) sec 678). 9. The 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 0 that the appellants committed criminal trespass. Therefore, they cannot claim the benefit of exception of having acted in exercise of right of private defence. 10. On 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. 11 . The appeal is allowed to the aforesaid extent. D. G. Appeal partly allowed.