STATE OF RAJASTHANversusMANOJ KUMAR

                      [2014] 8 S.C.R. 589

                                           ·•
                   STATE OF RAJASTHAN                                A
                                v.
                        MANOJ KUMAR
              (Criminal Appeal No. 885 of.2007)
                        APRIL 11, 2014
     [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

      · Penal Code, 1860..: s.304 Part I - Murder - Verbal
  altercation over ownership and possession of property led to       ,
  the incident - Death caused due to gunshot injury - Three          C
  accused - Accused 'R' had fired the gunshot - All accused
  convicted by trial court uls.302 rlw s.34- High Court accepted
  plea relating to right of private defence but held that 'R' had
  exceeded the right of private defence, and converted his
  conviction uls.302 to one u/s.304 Part-I - Justification - Held:   D
  In the case at hand, the plea ofright of private defence arose
 .on the base of materials on record - As far as onus was
  concerned, there was ocular and documentary evidence to
  sustain the concept of preponderance of probability - There
  were altercations between the accused and the deceased and         E
  there was threat that the informant and others would take over
  possession - There was threat to the property of 'R' and he
  made effort to drive away the informant and others - Act of
  the accused to be adjudged regard being had to the
  surrounding circumstances and not by way of microscopic            F
  pedantic scrutiny - Though 'R' fired gunshot but it was really
  not with the intention to cause the death of the deceased -
  Prosecution did not bring any material on record that 'R was
· vindictive, or he had any malicio_us intention to cause the
  death - That being the position, #he High Court rightly held       G:
  that 'R' had exceeded the right of private defence and correctly
  found him guilty u/s. 304 Part I - Evidence Act, 1872 -s. 105
  - Arms Act - ss. 25127.

                               589                                   H
    590     SUPREME COURT REPORTS                  [2014] 8 S.C.R.


A       Penal Code, 1860- s.34 - Murder- Common intention
  - Incident occurred pursuant to altercation over ownership and
  possession of property - Death caused due to gunshot injury
  - Three accused - Accused 'R' had fired the gunshot - All
  accused convicted by trial court u/s.302 rlw s.34- High Court
B conve.ted conviction of 'R' to one u/s.304 Part-I - In regard
  to the other two accused, the High Court held· that their
  conviction could not be sustained in aid of s.34, /PC, and
  acquitted them of all charges - Justifiability - Held: It is a
  case where right of private defence had only been exceeded
C by 'R' - The other two accused had accompanied 'R' to defend
  the right of possession - In such a case, the guilt of each of
  .the accused, who had exceeded the right of private defence,
  to be dealt with separately - The matter would have been
  totally difi'erent, had the right of private defence did not exist
  at all or the accused persons had done any overt act -
D Constructive liability, as envisaged u/s.34 /PC, not attracted
  - Conclusion of High Court that s. 34 /PC could not be
  attracted regard being had to the factual score, correct.

        The prosecution case was that dispute over
E ownership and possession of a plot of land led to verbal
  interaction between the parties, and eventually accused
  'R' fired gunshot which led to t'1e c!eath of 'A'. There were
  two other accused - 'H' and 'M'. The trial court convicted
  'R' under Section 302 IPC r/w Section 34 IPC and also
F under Sections 25/27 of the Arms Act, while 'H' and 'M'
  were convicted under Section 302/34, IPC.
       In appeal, the High Court accepted the stand of all
  the accused persons relating to right of private defence.
  However, in case of 'R', the High Court held that he had
G exceeded-the right of private defence, and accordingly
  converted his conviction under Section 302 IPC to one
  under Section 304 Part-I IPC; and further confirmed his
  conviction under Sections 25 and 27 of the Arms Act. As
  far as 'H' and 'M' were concerned, the High Court held
H
     STATE OF RAJASTHAN v. MANOJ KUMAR                   591


that their conviction could not be sustained in aid of          A
Section 34, IPC, for in the obtaining facts and
circumstances Section 34 IPC was not applicable. 'H' and
'M' were acquitted of all charges.

    In the instant appeals filed by the State, two
questions arose for consideration: {i) whether the High         B
Court was justified in accepting the contention of right
of private defence; and (ii) whether the conclusion of the
High Court that Section 34 IPC could not be attracted
regard being had to ·the factual score, was correct.
                                                                c
     Dismissing the appeals, the Court

     HELD:1. As noticed from the evidence on record,
 there can be no iota of doubt that 'R' fired the gunshot
 as a consequence of which 'A' 'breathed his last. It is also
 clear that there was a dispute over the land and the           0
 possession still remained with the accused persons. It is
 also borne out from the evidence that·the accused
 persons were not parties to the suit. In such a situation,
 PW5 was trying to raise construction by collecting
 material at the site and, in fact, to take over possession,    E
 had sent his brother 'A' and other brothers. After the
 deceased and the others came at the site the accused
 persons, getting the information, had reached to the
 house of Risadiya and initially a verbal altercation took
.place and, eventually, a gunshot was fired. [Para 9] [591-     F
.E-G]

    2.1. The counsel for the State submitted that the
accused persons had not taken the plea of right of private
defence in their statement under Section 313 CrPC and           G
hence, the High Court could not have adverted to the
same; and that even assuming the stand can be
considered, in the case at hand the accused persons
misefably failed to discharge the burden in establishing
their right of private defence. However, in the case of         H
   592     SUPREME COURT REPORTS                [20141 a·s.c.R.


A Munshi Ram, it has been ·1aid that even if an accused;
   does not take the plea of private defence, it is open to the:.
   court to consider such a plea if the same arises from the.
   material on record and burden to establish such a plea;
   is on the accused and that burden can be discharged by
B showing preponderance of probabilities in favour of that
   plea on the basis of material on record. In Salim Zia, thiS:
   Court observed that it is true that the burden on an·
   accused person to establish the plea of self-defence is
 . not as onerous as the one which lies on the prosecution
c and that while the prosecution is required to prove its
   case beyond reasonable doubt, the accused· need not
   establish the plea to the hilt and may discharge his onus
   by establishing a mere preponderance of probabilities
   either by laying basis for that plea in the cross-
D examination of prosecution witnesses or by- adducing
   defence evidence. Sinl'ilarly, in Mohd. Ramzani, it was held
   that the onus which rests on an accused person under
   Section 105, Evidence Act, to establish his plea of private
   defence is not as onerous as the unshifting burden
   which lies on the prosecution to establish every
E ingredient of the offence with which th~ accused is
   charged, beyond reasonable doubt. [Para 11) [599-C-G;
   600-A-B]                                 .

      2.2. In the case at hand, the plea of right of private
F defence arises on the base of materials on record. As far
  as onus is concerned, there is 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. [Para 12] ·
G [600-e-D)
       Munshi Ram and others v. Delhi Administration (1968)
   2 SeR 455; Salim Zia v. State of Uttar Pradesh (1979) 2 Sec:
   648: 1979 (2) seR 394 and Mohd. Ramzani v. State of Delhi:
H 1980 Supp sec 215- relied on.
       $TATE OF RAJASTHAN v. MANOJ .KUMAR               593


       3. there is materi,al on record tnat there were          A
 ,altercations between the accused and the deceased on
 the one hand and the others and there was threat that the
  Informant and others would take over possession. The
 High Court found that there was a threat to the property
 (>f 'R' and he had made an effort to drive away the            B
  !~formant and others. Though the ·prosecution has come
 ,out with the version that the accused persons were trying
 :to take over possession, yet on a scrutiny of the evidence
  if becomes quite vivid that they were in a hurry to raise
  construction at the site and, accordingly, were taking        c
  steps. In this context, the act of. the accused is to be
  adjudged. It has to be appreciated regard being had to
·the surrounding circumstances and not by way of
  microscopic pedantic scrutiny. True it is, he had fired a
  gunshot but it was really not with the intention to cause     0
  the death of the deceased. The prosecution has not
  brought any material on record that the said accused was
  vindictive, or he had any malicious intention to cause the
  death of the deceased. Had that been there, then it would
  have been totally contrary to the concept of right of         E
  private defence. That being the position, the High Court
  rightly accepted the_submission that 'R' had exceeded
  the right of private defence and has correctly found him
  guilty under Section :a04 Part I IPC. [Para 14] [601-E-G;
  602-A-C]
                                                                F
       Munshi Ram and others v. Delhi Administration (1968)
  2 SCR 455; Mohd. Ramzani v. State of De~hi 1980 Supp
.sec     215; Bhanwar Singh and others v. State of Madhya
  Pradesh (2008) 16 sec 657: 2008 (9) SCR 1; Vidya Singh
 v. The State of Madhya Pradesh AIR 1971 SC 1857 and            G
  Sikandar Singh and others v. State of Bihar (2010) 7 SCC
  477: 2010 (8) SCR 373 - relied on.
       4. In the present case, on a perusal of the evidence,
  it is found that accused 'M' and 'H' had accompanied
  accused 'R' to defend the right of possession. It is a case   H
     594       SUPREME COURT REPORTS                  [2014] 8 S.C.R.


A where accused 'R' exceeded the right of private defence.
  The right of private defence had only been exceeded by
  'R'. 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
B different, had the right of private defence did not exist at
  all or the accused persons had done any overt act. Thus,
  in the constructive liability, as envisaged under Section
  34 IPC, is not attracted. [Para 17] [603-F-G]
       State of Biharv. Nathu Pandey and others (1969) 2 SCC
C 207: ~970 (1) SCR 358 and Joginder Ahir and others v. The
  State of Bihar (1971) 3 SCC 449: 1971 (0) ~uppl. SCR 460
  - relied on.
                             Case Law Reference:
           (1968) 2 SCR 455             relied on          Para 11
D
           1979 (2) SCR 394             relied on          Para 11
           2008 (9) SCR 1               relied on          Para 13
           2010 (8) SCR 373             referred to        Para 14
           1970 (1) SCR 358             relied on          Para 15
E
           1971 (0) Suppl. SCR 460 relied on               Para 16
         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
     No. 885 of 2007.
      From Ute Judgment and Order dated 14.02.2006 of the
F High Court of Rajasthan at.Jaipur Bench, Jaipu'r in D.B. Criminal
  Appeal No. 1011 of 2003.
                                    WITH
     C.A. No. 1073 of 2007
G
            Milind KuQ1ar for the Appellant.
         Sushi! Kumar Jain, Puneet Jain, Christi Jain, Anurag Gohil,
     Ruchika Gohil, Pratibha Jain for the Respondent.
            The Judgment of the Court was delivered by
,H
     STATE OF RAJASTHAN v. MANOJ KUMAR                    595


     DIPAK MISRA, J. 1. The present appeals, by special A
leave, have been preferred against the common judgment and
order dated 14.2.2006 passed by the High Court of Judicature
forRajasthan, Jaipur Bench at Jaipur in D.B. Criminal Appeal
No. 396 of 2000 and D.B. Criminal Appeal No. 1011 of 2003,
wherein the High Court has partly allowed the appeal of Raju B
@ Rajkumar by converting his conviction under Section 302 IPC
to one under Section 304 Part I of IPC and further confirming
his conviction under Sections 25 and 27 of the Arms Act and
sentencing him to suffer rigorous imprisonment for ten years
and to pay a fine of Rs.500/-, in default of payment of fine, to c
suffer further six months rigorous imprisonment. Hemant Kumar,
a co-accused along with Raju and Manoj Kumar, who had
preferred an independent appeal, has been acquitted of all
charges.

    2. At the very outset we may state that Raju @ Rajkumar D
has expired on 8.3.2012 and in proof thereof a death certificate
has been brought on record. In view of the same, the Criminal
Appeal No. 1073 of 2007 would stand abated as far as Raju
@ Rajkumar is concerned and would only survive against the
accused Hemant Kumar.                                            E

     3. The prosecution case, in brief, is that the police
recorded the statement of deceased Anirudh Mishra at Sri
Kalyan ,Hospital Sikar on May 26, 1998 who had stated that
around 8:30 p.m. on that day he along with his brother Basant F
Mishra, PW 4, and Mahesh Kumar· Saini, PW 3, had gone to
the vacant plot belonging to him and his brother situated at
Lisadia ka Bas being apprehensive that that sons of Ram
Niwas and Shanti Prasad would take possession of the plot.
At that point of time sons of Ram Niwas and Shanti Prasad G
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
gun shot injury on the right side of his chest and his brother
                                                                H
    596    SUPREME COURT REPORTS                 [2014) 8 S.C.R.


A    Ramesh@ Umesh, PW 5, had brought him to the hospital. On
     the basis of his statement th~ concerned police officer
, , registered FIR No. 243 of 1998 for the offences punishable
   . under sections 307 and 149 of IPC. However, after the death
     of Anirudh, the offence was converted to one under section 302
B IPC and investigation commenced. During the course of
     investigation, Raju and Hemant were arrested and Manoj was
     declared as an absconder. A charge sheet was filed against
     Raju and Hemant fer the offences under sections 302, 302/34
     IPC and for offences under Section 3/25, 3/27 and 3/33 of the
c    Arms Act and it became the subject matter of S.C. No. 34 of
     1998. After Manoj Was arrested, a charge sheet 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.

         4. The accused persons abjured their guilt and pleaded
D   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. In
    the second trial, the prosecution examined as many as twelve
E   witnesses and similar numbers of documents were exhibited.
    In the second trial the defence produced one witness and
    tendered four documents in support of its plea.

        5. The witnesses in both the trials are common and the
F prime witnesses, as mentioned in first trial are, Anjani Kumar,
   PW 1, brother of the deceased, Mahesh Kumar Saini, PW 2
   an eye witness, Basant Kumar, PW-4, brother of the deceased,
   PW 5, Ramesh @ Umesh, another brother of the deceased,
   Dr. V.K. Soni, PW 6, who had examined the deceased and
G. prepared the x-ray report, Dr. G.R. Tanwar, PW 10, who had
   conducted the post-mortem and Bhagwan Singh, PW 12, the
   Investigating Officer. After examining the oral and documentary
   evidence the learned trial Judge ·convicted Raj Kumar under
   section 302 read with Section 34 IPC and also under Sections
   25/27 of the Arms Act, afld H~mant for the offences' under
H
      STATE OF RAJASTHAN 1v. MANOJ KUMAR                      597
                [DIPAK MISRA, J.]

Section 302/34 IPC. In the second trial, accused Manoj was            A
convicted under Section 302/34, IPC.

     6. The accused persons preferred two separate appeals
and the High Court in its common judgment and order accepted
the stand of all the accused persons relating to right of private     8
defence. 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 could not be sustained     C
in aid of Section 34, IPC, for in the obtaining facts and
circumstances Section 34 was not applicable.

    7. We have heard Mr. Milind Kumar, learned counsel
appearing for the State and Mr. Sushil Kumar Jain, learned
counserappearing for the respondent.                                  D

     8. Two questions that emerge for consideration in these
appeals, are (i) whether the High Court was justified in
accepting the contention of right of private defence; and (ii)
whether the conclusion of the High Court that Section 34 IPC          E
could not be attracted regard being had to the factual score,
is correct.

        9. On a perusal of the judgment of the learned trial Judge,
  it is demonstrable that he has set out in detail that a dispute
 existed between the parties over the possession of land in           F
 question. He has arrived at the conclusion that as per the
 evidence brought on record, both ocular and documentary,
· Parasram Lisadiya had sold the plot to Ramesh Kumar, the
 elder brother of the deceased, Anirudh Mishra, vide Registered
  Sale-deed, Ex.P-9. It has been brought on record that a dispute     G
  in regard to the plot was in existence between Parasram
  Lisadiya and Phool Chand Lisadiya and it has led Parasram
 to file the civil suit No. 131·of1986 for permanent injunction
 wherein it was alleged that on 11.7 .1986 Phool Chand had
 obstructed Parasram from commencing the construction on the          H
    598      SUPREME COURT REPORTS                    [2014] 8 S.C.R.·


A   plot. On 17.9.1997 the suit for permanent injunction was
    decreed ex-parte against Phool Chand restraining· him from
    interfering with the possession of Parasram over the land in
    question. It is also reflectible from Ex.P-9 that by the time the
    suit was decided in favour of the plaintiff, Parasram had already
B   sold the plot vide Registered Sale-deed, Ex.P-9, to Ramesh
    Mishra, who had obtained sanction for construction vide Ex.P-
    12 and the site plan vide Ex.P-14. The events happened in
    quick succession and Ramesh, after obtaining necessary
    sanction, had started collecting mater::::! for construction. It has
c   come in the evidence of Ramesh, PW-5, that the dispute
    existed between Parasram and Phool Chand over the
    possession even after the sale-deed was executed. It has also
    come on record that sanction for construction was obtained only
    four days prior to the incident; and that a cavil existed in regard
    to the plot between the informant and the accused persons as
0
    the original owner, Phool Chand had mortgaged the said plot
    to Shanti Prasad, father of the accused and they were in
    possession. As we notice from the evidence on reGord, there
    can be no iota of doubt that Rajkumar has fired the gunshot as
    a consequence of which Anirudh breathed his last. It is also
E   clear that there was a dispute over the land and the possession
    still remained with the accused persons. It is also borne out from
    the evidence that the accused persons were not parties to the
    suit. In such a situation, Ramesh was trying to raise construction
    by collecting material at the site and, in fact, to take over
F   possession, had sent his brother Anirudh and other brothers.
    After the deceased and the others came at the site the accused
    persons, getting the information, had reached to the house of
    Risadiya and initially a verbal altercation took place and,
    eventually, a gunshot was fired.
G
       10. The High Court has taken into consideration various
  aspects, namely, there was dispute with regard to the ownership
  and possession over the plot in dispute; that the informant and
  others had gathered the materials for construction of the plinth
H few days before the incident; that the municipal council has
       STATE OF RAJASTHAN v. MANOJ KUMAR                     599
                 [DIPAK MISRA, J.]
granted sanction only four days. prior to the incident; that         A
Ramesh, PW-5, and others were apprehensive that they would
lose possession; that an affirmative plea relating to possession
by the accused persons had been taken; and that the accused
Rajkumar wi~h the intention to defend the possession of the
property and to drive away the deceased and others had               B
opened the fire, but, unfortunately, it hit the deceased. On the
aforesaid analysis of the evidence, the High Court was
persuaded to hold that the accused Rajkumar had exceeded
his right of private defence.

     11. Mr. Milind Kumar, learned counsel for the State, has        C
submitted that the accused persons had not taken the plea of
right of private defence in their statement under Section 313
of the Code of Criminal Procedure and hence, the High Court
could not have adverted'to the same. It is further put forth that
even assuming the stand can be considered, in the case at            D
hand the accused persons have miserably failed to discharge
the burden in establishing their right of private defence. In this
context, we may refer with profit to the pronouncement in
Munshi Ram and others v. Delhi Administration 1 wherein it
has been laid that even if an accused does not take the plea         E
of private defei:ice, it is open to the court to consider such a
plea if the same arises from the material on record and burden
to establish such a pie~ is on the accused and that burden can
be discharged by showing preponderance of probabilities in
favour of that plea on the basis of material on record. In Salim     F
Zia v. State of Uttar Pradesh 2 the observation made by this
Court to the effect that it is true that the burden on an accused
person to establish the plea of self-defence is not as onerous
as the one which lies on the prosecution and that while the
prosecution is required to prove its case beyond reasonable          G
doubt, the accused need not establish the plea to the hilt and
may discharge his onus by establishing a mere preponderance

1.   (1968) 2 SCR 455.
2.   (1979) 2 sec 648.                                               H
     600      SUPREME COURT REPORTS                    (2014) 8 S.C.R.

A of probabilities either by laying basis for that plea in· the cross-
  examination of prosecution witnesses or by adducir;ig defence
  evidence. Similarly, in Mohd. Ramzani v. ~fate of DelhP, it has
  been held that it is trite that the onus which rests on an accused
  person under Section 105, Evidence Act, to establish his plea
s of private defence is not as onerous as the unshifting burden
  which lies on the prosecution to establish every ingredient of
  the offence with which the accused is charged, beyon.d
  reasonable doubt.

       12. In the case at hand, the plea of right of private defence
C arises on the base of materials on record. As far as onus is
  concerned, we find that there is ocular and documentary
  evidence to sustain the concept of preponderance of probability.
  It can not be said that there is no material on record or scanty
  material to discard the plea. Thus, the aforesaid s·ubmission
D being unacceptable, are hereby repelled.
         13. Learned counsel for the State next contended that when
   the accused persons had exceeded their right of private
   defence and caused the death of the deceased, all of them
E should have been convicted under Section 302/34 IPC. In this
   regard,'we may referwith profit to certain authorities before we
   advert to the facts unfurted in the case at hand. In Munshi Ram
   (supra}, while tle~lil)g with right to private defence, this Court
   has obs~rve~ tha~ law does not require a person wh-Os.e
F. property   is' f'6rcibly .trie~ .to be occupied by. trespassers to rw:f
   away and seel(Jhe;protection of the authorities, for the right of
   private defence serves a social purpose and that right should
   be liberally construed. The Court further stated that such a right
   not only will. be . '
                         a ·restraining
                           ._           influence .on bad characters but it
G will enGourage the· right spirit in ~,free citizen, because there:
   is nothing more pegrading to th~ human spirit than to run away
   in the face.of peril. In Mohd. Ramzani (supra) .the Court has·
   observed that it is further well-established that a person faeed
   with imminent p~ril of life and limb of himself oranother, is not
 '
 !
H    3.   (1980) supp sec 21s.
      STATE OF RAJASTHAN v. MANOJ KUMAR                      601
                [DIPAK MISRA, J.]
 expected to weigh in "golden scales" the precise force needed A
 to repel the danger. Even if he in the heat of the moment carries
'his defence a little further than what would be necessary when
 calculated with precision and exactitude by a calm and· unruffled
 mind, the law makes due allowance for it. In Bhan'l(ttr Singh
 and others v. State of Madhya Pradesh4 it has be~n, ruled tg B
 the effect that for a plea of right of private defence tQ su.cceed
 in totality, it must be proved that there existed a righfto private·
 defence. in favour of the accused, and that this right extended
 to causing death and if the court were to reject th~ ~id plea,
 there are two possible ways in which thi$ may be don~. i.e., c
 on one ~and, it may be held that there existed a right to private
 defence of the body, however, more harm than necessary was
 caused or, alternatively, this right did· not extend ·to causing
 death and in such a situation it would result in the appli~tion
 of Section 300 Exception 2.
                                                                   D
      14 .. On the touchstone of the aforesaid principles, the
evidence brought on record and the conclusion arrived at by
the High Court have to be tested. There is material on record
that there were altercations between the accused· and the
deceased on the one hand and the others and there was;thr!'!at E
that the informant and others woulq take over possessioR. The
High Court has found that there was a. threat to the property of
Raj Kumar and he had made an effort to drive away the
informant and others. Though the prosecution has come out with
the version that the accused persons were trying to take over F
possession, yet on a !>Crutiny of the evidence it becomes quite
vivid that they were in a hurry to raise construction at the site
and, accordingly, were taking steps. In this context, the act'()f
the accused is to be adjodged. It has to be appreciated regard
being had to the surrounding circumstances and not by way of G
microscopic pedantic scrutiny, as has been held in Vidya
Singh v. The State of Madhya Pradesh~ and Sikandar Singh

4. (2008) 16 sec 657.
5.. AIR 1971 SC 1857.                                              H
    602        SUPREME COURT REPORTS                 [2014] 8 S.C.R.


A   and others v. State of Biha~. True it is, he had fired a gunshot
    but it was really not with the intention to cause the death of the
    deceased. The prosecution has not brought any material on
    record that the said accused was vindictive, or he had any
    malicious intention to cause the death of the deceased. Had
s   that been there, then it would have been totally contrary to the
    concept of right of private defence. That being the position, the
    High Court has rightly accepted the submission that Raj Kumar
    hag exceeded the right of private defence and has correctly
    found him guilty under Section 304 Part I IPC.
C-     15. Presently, we shall advert to the facet of justifiability of
  the acquittal of the accused persons who had accompanied the
  accused who had fired the gunshot. Learned counsel for the
  State would urge that as they had come to the spot with the
  accused Raj Kumar and they had the common intention. Even
D if there was no prior intention, submits Mr. Milind Kumar,
  learned counsel for the State, it developed on the spot. On a
  perusal of the evidence, we find that accused Manoj Kumar
  and Hemant Kumar had accompanied accused Rajkumar to
  defend the right of possession. It is a case where accused
E Rajkumar exceeded the right of private defence. A three-Judge
  Bench in State of Bihar v. Nathu Pandey and others 7 , while
  accepting the reasoning of the High Court that some of the
  accused persons had exceedea the right of private defence,
  opined that when it is not possible to say that all the accused
F persons have the common object to commit murder and only
  those, who exceeded the right of private defence, would be held
  responsible for their murders.
       16. In Joginder Ahir and others v. The State of BihafJ, the
  Court referred to the decision in Nathu Pandey and others
G (supra) andaealing with the applicability of Section 34 IPC,
  taking into consideration almost similar findings, opined that

     6.   c2010) 7 sec 77.
     7.   (1969) 2 sec 648.
H    8.   (1971) 3 sec 449.
      STATE OF RAJASTHAN v, MANOJ KUMAR                    603
                [DIPAK MISRA, J.]
there was no common intention on the part of all the accused A
persons to commit the crime. In the said case, the High Court
had convicted the accused-appellants therein under Section 304
Part II in aid of Section 34 IPC. Dealing with the same it has
been held as follows: -
    "We are unable to concur with the view of the High Court B
    that any such common intention could be attributed to the
    appellants on the facts and in the circumstances of the
    case. They certainly had the common intention of defending
    the invasion of the right to property. While doing so if one
    or two out of them took it into his or their heads to inflict C
    more bodily harm than was necessary, the others could not
    be attributed the common intention of inflicting the injuries
    which resulted in the death of the deceased. Section 34
    can only be applied when a criminal act is done by several
    persons in furtherance of the common intention of all. No o
    overt-act had been proved or established on the part of the
    appellants which showed that they shared the intention of
    the person or persons who inflicted the injury or injuries on
    the head of the deceased which led to his death. They
    cannot, therefore, possibly be held guilty of an offence E
    under Section 304, Part 11, read with Section 34 of the
    Indian Penal Code."
      17. The facts in the present case, as we understand, a~e
similar to the factual score in the aforesaid case because the
right of private defence had only been exceeded by Rajkumar. F
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 G
opinion, the constructive liability, as envisaged under Section
34 IPC, is not attracted.
    18. In view of our aforesaid analysis, we do not perceive
any merit in these appeals and, accordingly, they are dismissed.
Bibhuti Bhushan Bose                          Appeals dismissed.   H