NAGJI ODHAVJI KUMBHAR & ANR.versusSTATE OF GUJARAT

                         [2019] 6 S.C.R. 249                            249


             NAGJI ODHAVJI KUMBHAR & ANR.                               A
                                 v.
                       STATE OF GUJARAT
                 (Criminal Appeal No.880 of 2009)
                          APRIL 23, 2019                                B
   [SANJAY KISHAN KAUL AND HEMANT GUPTA, JJ.]
      Penal Code, 1860:
      ss. 302 and 324 r/w s. 34 – Prosecution under – Death of two
persons and injuries to two – Injuries also received by the accused     C
– Cross-case by the accused – Conviction by courts below – In
appeal, plea taken that the accused acted in private defence and at
the spur of the moment without pre-meditation – Held: There is no
evidence that the deceased were armed with any weapon – In view
of the evidence of injured witnesses that the accused were armed
                                                                        D
with spears and other weapons and since the deceased were not
armed, right of private defence is not available to the accused –
The act of the accused also cannot be said to be at the spur of the
moment without pre-meditation – Therefore, they are also not entitled
to alternation of conviction from s. 302 to s. 304 – Conviction
u/s. 302 upheld.                                                        E
      Dismissing the appeal, the Court
      HELD: 1. The prosecution has relied upon the statement
of complainant PW-3 as also the statement of PW-4 who are
injured witnesses. PW-2, the doctor has been examined to prove
the injuries on prosecution witnesses. It is statement of PW 3          F
which led to lodging of First Information Report that the appellants
who were 7 to 8 in number challenged the witnesses. The
appellants were having spear, accused was having axe and others
were having sticks. They attacked the deceased and both the
injured witnesses with spears and axe. [Paras 12, 13][254-F-H]          G
      2. The appellants have lodged cross First Information
Report. There is no evidence on the part of the appellants that
the deceased were armed with any weapon in the first version,
when they lodged report. The right of private defence is not
                                                                        H
                                249
250            SUPREME COURT REPORTS                      [2019] 6 S.C.R.


A     available when the alleged assailants are unarmed. The right of
      private defence is to protect the person and the property. In such
      right, the person cannot cause more harm than what is necessary
      for the protection of the person and the property. What harm can
      be expected from the hands of the deceased when they were un-
      armed, whereas from the testimony of PW-3 and PW-4, the injured
B
      witnesses, the appellants were armed with spears and other
      weapons. The Post-Mortem report corroborates an oral
      testimony that both the deceased have received stab wounds.
      Therefore, the appellants cannot be said to have acted in the
      right of their private defence. Since the deceased were not armed,
C     therefore, the appellants are not entitled to the right of private
      defence. [Paras 15, 17][255-A-D; 256-A]
            Jangir Singh v. State of Punjab 2018 (15) SCALE 88
            – distinguished.
            3. Since there are multiple wounds on the chest of the
D     deceased, it cannot be said that the appellants have acted at the
      spur of the moment without pre-meditation and that the appellants
      have not taken any advantage or acted in a cruel or unusual
      manner. It is not a case of single injury which one can infer on
      account of sudden fight. Therefore, the appellants are not entitled
E     to be convicted under Section 304 IPC as they have given multiple
      injuries on the vital parts of the deceased. The Trial Court as
      well as the High Court was perfectly justified in law in convicting
      and sentencing the appellants for the offence under Section 302
      IPC. [Para 18][256-A-C]

F                           Case Law Reference
      2018 (15) SCALE 88              distinguished         Para 7
            CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
      No. 880 of 2009.
            From the Judgment and Order dated 24.10.2008 of the High Court
G
      of Gujarat at Ahmedabad in Criminal Appeal No. 234 of 1990.
            Ravi Prakash Mehrotra, Ankit Agarwal, Ms. Deepti R. Mehrotra,
      Advs. for the Appellants.
           Ms. Jesal Wahi (for Ms. Hemantika Wahi), Adv. for the
H     Respondent.
 NAGJI ODHAVJI KUMBHAR & ANR. v. STATE OF GUJARAT                              251


      The Judgment of the Court was delivered by                               A
      HEMANT GUPTA, J.
       1. The challenge in the present appeal is to an order passed by the
High Court of Gujarat at Ahmedabad on 24.10.2008 maintaining conviction
for offences under Sections 302 and 324 of IPC against the appellants          B
for causing death of Bhura Govind and Lakha Arjan.
       2. The prosecution case is that on 1st July 1987 at about 12 midnight
in Village Prempara-Rampara, the appellants caused injuries to Bhura
Govind and Lakha Arjan with spears etc and on account of grievous
injuries inflicted, both of them died on the spot. The FIR was lodged at 7
                                                                               C
AM on 2nd July 1987 and the appellants were arrested on 17th July 1987.
The cause of occurrence is that the appellants were not giving right of
way to the deceased. The complainant party had filed the civil suit in
which injunction was granted in their favour. The appellants also lodged
a cross case which is Sessions Case No. 97 of 1987.
                                                                               D
       3. After completion of investigations, the appellants were made to
stand trial. The appellants have been convicted for life for offence under
Section 302 but no separate punishment was inflicted for the offence
under Section 324 IPC.
       4. In the present appeal, the argument of learned counsel for the
appellants is that the deceased and their accomplices, 9 in number, were       E
the aggressors. The injuries have been inflicted on both the appellants.
Such injuries have been proved by PW-10, Dr. Nikhilkumar Buch who
was posted at Civil Hospital, Junagarh at the relevant time. The appellants
have remained in hospital from 02.07.1987 to 17.07.1987. The appellants
have received grievous injuries, while protecting the possession of their      F
land, thus, they have acted in their right of private defence.
      5. It is also argued in the alternative that the occurrence has taken
place at the spur of the moment without any pre-meditation and that the
appellants are not taken any advantage or acted in a cruel or unusual
manner, therefore, the conviction of the appellants for the offences under     G
Section 302 read with Section 34 IPC is not sustainable. In fact at best,
an offence under Section 304 (Part II) can be said to have made out.
The appellants have undergone more than 11 years of actual imprisonment,
therefore, in the event the appellants are convicted for an offence under
Section 304(Part II), they would be entitled to be released having
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252                SUPREME COURT REPORTS                           [2019] 6 S.C.R.


A     completed the sentence which may be imposed as the maximum sentence
      is 10 years for an offence under Section 304(Part II).
             6. The argument is based on the statement of PW-13, Murlidhar
      Vasu, the Investigating Officer. He deposed that the appellant No. 1
      was lying at the spot and was bleeding. It is also argued that Vajibai,
B     wife of appellant no. 1, has been examined as defence witness. She
      deposed that appellant no. 1 came home and informed her that 9 persons
      have assaulted both the appellants and it is she who telephoned the police
      about the occurrence. It is also argued that the cross case registered on
      the basis of complaint of the appellants was separately investigated and
      the trial conducted. Thus, the primary argument is that the occurrence
C     having taken place at the spur of the moment, the conviction of the
      appellants for an offence under Section 302 IPC is not maintainable.
             7. The learned counsel for the appellants relies upon the judgment
      of this Court in Jangir Singh Vs. State of Punjab1 wherein the right of
      private defence was found to be valuable right and that this right should
D     not be construed narrowly.
             8. Before we consider the argument raised by learned counsel
      for the appellants, injuries received by appellant no. 1 (Ex.12), who was
      examined on 02.07.1987 at 5.15 AM by PW-10-Dr. Nikhilkumar Buch,
      are as under:
E
                “D/E (1) CLW on central part of head 21/2”X1/2"X up to bone
                deep vertical.
                (2) Incise wound on forearm back middle part 1"X1/4"X up to
                muscle deep oblique.
F               (3) Incise wound on upper part of Lt foreman back ¾”X1/4"X up
                to bone deep vertical.
                (4) CLW on route of Rt ear back 11/2"X1/4"X1/4" vertical.
                (5) Border of Rt ear ¾th lower part cut.
G               (6) Swelling and tenderness of Rt forearm 9 fracture.
                (7) Abrasion on Lt shin lower part 1"X1/2" vertical
                (8) 9 fracture of proximal phalanx of Lt ring finger.

      1
H         Criminal Appeal No. 2499 of 2009 decided on 31.10.2018
 NAGJI ODHAVJI KUMBHAR & ANR. v. STATE OF GUJARAT                             253
                [HEMANT GUPTA, J.]

      Cause of injury-Injury No. 2,3,5 are inflicted by some sharp cutting    A
      object.
      Injury No. 1,4,6,7,8 are inflicted by some hard and blunt object.”
      9. In respect of appellant no.2, the injuries received by him as
reported by PW-10-Dr. Nikhilkumar Buch (Ex.11) are as under:
                                                                              B
      “C/o Assaulted at midnight
      O/E 1) Incise wound on frontal part of head 2"x1/2"x up to bone
      deep vertical.
      2) Incise wound on Lt fore arm Lower part outer side 1"x1/4"x1/
      4" vertical.                                                            C
      3) Incise wound on Lt forearm Lower part backside ½”x1/4"x1/
      4" oblique.
      4) Incise wound on Rt shin lower part 1"x1/2"x1/4" vertical.
      5) Swelling and tenderness of 2" diameter on Rt upper outer of          D
      Thigh.
      6) Swelling and tenderness of Lt forearm 9 fracture.
      Cause of injury-Injury No. 1 to 4 are inflicted by some sharp
      cutting object.
                                                                              E
      Injury No. 5 and 6 are inflicted by some hard and blunt object.”
       10. The post-mortem report of the deceased-Bhura Govind shows
injuries on the vital parts. The injuries inflicted are on the chest. These
injuries are as under:
        “1. One pocket wound, at the place of rib of No. 3, which injury      F
      was in the left chest in middle part which wound was 22 inch x 1
      inch horizontal and 7 inch depth, which would was slanting.
      2. One pocket wound, on left back part was 1.5 inch x half inch
      2.5 inch depth.
      3. One would was pocket in the left side of the body. Which was         G
      slanting of 1 inch x half inch x 1.5 inch in shape.
      There was fracture at injury No. 1 on left third rib. These all
      injuries were of before the death. The corresponding injuries of
      which were as under:-
                                                                              H
254            SUPREME COURT REPORTS                           [2019] 6 S.C.R.


A           1. The layer of the lungs was cut on the front and back at the
            place of injury No. 1.
            2. In right lungs, upto injury no. 2, the wound was stretched. Which
            was stretched upto the lower lib.
            3. The upper part of the left lungs, there was wound from front to
B           back straight. Which was corresponding wound to injury no. 1.
            The vein of lungs and artery and the trachea were cut. In the left
            side of chest the air was there and the blood was gathered/
            collected.”
      11. The injuries on the dead body of Lakha Arjan are as follows:
C
            “1. On the shoulder of left arm, one pocket wound, which wound
            was slanting of 1 inch x 0.5 inch depth.
            2. One pocket wound, on the left side below of the armpit the
            wound was 2.5 inch x 1 inch x 6 inch, which would was going to
D           horizontal side.
            He states that these injuries were of before the death. He states
            that on the body of the deceased there was corresponding injuries
            which were as under:-
            1. The layer of left lungs was cut at the place of injury No. 2. The
E           upper part on trachea of left lungs, the upper part of the left lungs
            was cut. The left lungs were tightened and there was air in it and
            the blood was gathered.
            2. The vein and artery of the lungs were cut.”
            12. The prosecution has relied upon the statement of complainant
F     PW-3, Ramabhai Rajan as also the statement of PW-4 Govindbhai
      Punabhai who are injured witnesses. PW-2 Dr. Govindbhai Lakhmanbhai
      has been examined to prove the injuries on prosecution witnesses.
             13. In fact, the presence of the two witnesses at the time of
      occurrence is not seriously disputed. It is statement of PW 3 which led
G     to lodging of First Information Report that the appellants who were 7 to
      8 in number challenged the witnesses at about 12 night on 01.07.1987.
      The appellants were having spear, Hansraj was having axe and others
      were having sticks. They attacked the deceased and both the injured
      witnesses with spears and axe.
H
 NAGJI ODHAVJI KUMBHAR & ANR. v. STATE OF GUJARAT                                255
                [HEMANT GUPTA, J.]

     14. The learned Trial Court granted benefit of doubt to Hansraj             A
whereas convicted the appellants for offence under Section 302 IPC.
       15. The appellants have lodged cross First Information Report,
Ex.23. There is no evidence on the part of the appellants that the
deceased were armed with any weapon in the first version, when they
lodged report. The right of private defence is not available when the            B
alleged assailants are unarmed. The right of private defence is to protect
the person and the property. In such right, the person cannot cause more
harm than what is necessary for the protection of the person and the
property. What harm can be expected from the hands of the deceased
when they were un-armed, whereas from the testimony of PW-3 and
PW-4, the injured witnesses, the appellants were armed with spears and           C
other weapons. The Post-Mortem report corroborates an oral testimony
that both the deceased have received stab wounds. Therefore, the
appellants cannot be said to have acted in the right of their private defence.
       16. It has been held in the judgment of this Court in Jangir Singh
case (supra), that in order to succeed in such plea of private defence, it       D
must be proved that the right of private defence extended to cause death.
The said judgment arises out of the fact wherein, the accused and the
deceased were the volunteers in the Punjab Home Guard and both had
self-loading rifles of 0.003. They had altercation in respect of borrowing
of money for about 15 minutes, thereafter the appellant fired at the             E
deceased which has taken his life. The Court found that both the deceased
and the appellant were altercating face to face standing at a distance of
10 feet from each other. Keeping in view the facial expressions, the
appellant felt imminent danger from the fact of aiming of rifle at him by
the deceased. In the present case, the deceased were not carrying any
weapon which is evident from first statement given on behalf of the              F
appellants.
        17. The argument that one of the appellants was lying in a pool of
blood at the place of occurrence on the basis of statement of the
Investigating Officer does not merit any consideration. The first version
of the appellants is that the deceased were not armed. The deceased              G
may be accompanied by some other person who might have caused
injuries on the person of the appellants. However, there is no evidence,
who were the persons accompanying the deceased and with what weapon
and what is their role. Such aspect is not the subject matter of the present
trial. Separate trial is in progress in respect of First Information Report      H
256             SUPREME COURT REPORTS                           [2019] 6 S.C.R.


A     lodged by the appellants. Since the deceased were not armed, therefore,
      the appellants are not entitled to the right of private defence.
              18. The deceased had multiple stab wounds on the chest. Since
      there are multiple wounds, it cannot be said that the appellants have
      acted at the spur of the moment without pre-meditation and that the
B     appellants are not taken any advantage or acted in a cruel or unusual
      manner. It is not a case of single injury which one can infer on account
      of sudden fight. We, therefore, do not find any merit in the alternate
      argument that the appellants are entitled to be convicted under Section
      304 IPC as they have given multiple injuries on the vital parts of the
      deceased. The learned Trial Court as well as the High Court was perfectly
C     justified in law in convicting and sentencing the appellants for the offence
      under Section 302 IPC. We do not find any error in the order passed
      which may warrant our interference in the present appeal. The criminal
      appeal is dismissed.

D     Kalpana K. Tripathy                                          Appeal dismissed.




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