11 April, 2014
Bench: K.S. Radhakrishnan, Dipak Misra
IN THE SUPREME COURT OF INDIA
State of Rajasthan-Appellant
Manoj Kumar- Respondent
CRIMINAL APPEAL NO. 1073 of 2007
Facts
(1) Raju @ Rajkumar had expired on 8.3.2012 and in proof thereof a death certificate has been brought on record. In view of an equivalent, the Criminal Appeal No. 1073 of 2007 would stand abated as far as Raju @ Rajkumar cares and would only survive against the accused Hemant Kumar.
(2) The police recorded the statement of deceased Anirudh Mishra at Sri Kalyan Hospital Sikar on May 26, 1998, they stated that around 8:30 p.m. on that day he along with his brother Basant Mishra, PW 4, and Mahesh Kumar Saini, PW 3, went to the vacant plot who was belonging to him and his brother who was situated at Lisadia ka Bas. he was also being apprehensivethat sons of Ram Niwas and Shanti Prasad would take possession of the plot.
(3) At that point of time, sons of Ram Niwas and Shanti Prasad were present at the house of Phoolji Lisadiya situate adjacent to the plot. As per his version, they first abused him and thereafter opened fire as a result of which he had sustained a gunshot injury on the proper side of his chest and his brother Ramesh @ Umesh, PW 5, had brought him to the hospital for the treatment.
(4) However, after the death of Anirudh, the offence was converted to section 302 IPC and investigation commenced. During the course of investigation, it was similarly observed that, Raju and Hemant were arrested and Manoj was declared as an absconder.
(5)A record was filed against Raju and Hemant for the offences under sections 302, 302/34 IPC for offences under Section 3/25, 3/27 and 3/33 of the Arms Act and it became the topic of concern. After Manoj was arrested, a blotter was submitted against him for the offence under Section 302/34 of IPC and he faced a separate trial in S.C. No. 8 of 2002.
(6) The accused persons abjured their guilt and pleaded false implication because of property dispute and animosity. In order to prove its case the prosecution in the first trial examined as many as sixteen witnesses and got marked thirty-seven documents and also brought eight articles on record.
(7) The accused persons preferred two separate appeals and therefore the supreme court in its common judgment and order accepted the stand of all the accused persons concerning right of private defence.
(8) However, as the accused Raju has exceeded the right of private defence, the High Court converted his conviction to one under Section 304 Part-I IPC and sentenced him as stated hereinbefore. As far as accused Hemant and Manoj are concerned, it opined that their conviction couldn’t be sustained in aid of Section 34, IPC, for within the obtaining facts and circumstances Section 34 was not applicable.
Issues
i) whether the supreme court was justified in accepting the contention of right of personal defence;
ii) whether the conclusion of the High Court that Section 34 IPC could not be attracted regard being had to the factual score, is correct.
Obiter dicta
The plea of right of personal defence arises on the bottom of materials on record. As far as onus cares, we discover that there’s ocular and documentary evidence to sustain the concept of preponderance of probability.
It cannot be said that there is no material on record or scanty material to discard the plea.
Rationale
There is material on record that there have been altercations between the accused and therefore the refire the deceased on the one hand and the others and there was threat that the informant and others would take over possession.
The supreme court has found that there was a threat to the property of Raj Kumar and he had made an attempt to chase away the informant. Though the prosecution has begin with the version that the accused persons were trying to require over possession, yet on a scrutiny of the evidence it becomes quite vivid that they were during a hurry to boost construction at the location.
Judgement
It was held that court do not perceive any merit in these appeals and, accordingly, they are dismissed.
Conclusion
As per the facts stated above it is quite similar to the factual score in the aforesaid case because the right of private defence had only been exceeded by Rajkumar.
In such a case, the guilt of each of the accused, who had exceeded the right of private defence, has to be dealt with separately. The matter would have been totally different, had the right of private defence did not exist at all or the accused persons had done any overt act. Thus, in our considered opinion, the constructive liability, as envisaged under Section 34 IPC, isn’t attracted.
By- Bharti verma