Full Judgment Text
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PETITIONER:
BHAGWAN SWAROOP
Vs.
RESPONDENT:
STATE OF MADHYA PRADESH
DATE OF JUDGMENT31/01/1992
BENCH:
KULDIP SINGH (J)
BENCH:
KULDIP SINGH (J)
SAHAI, R.M. (J)
CITATION:
1992 AIR 675 1992 SCR (1) 466
1992 SCC (2) 406 JT 1992 (3) 16
1992 SCALE (1)202
ACT:
Penal Code,1860-Sections 96,100-Right of private
defence-Lathi blows inflicted on father by complainant
party-Apprehension of danger to his life-Firing a gun shot
at that time by son-Whether right of private defence can be
claimed.
Arms Act, 1959-Section 25A-Conviction under-Using of
father’s licensed gun by son to save life of father-Whether
acquittal proper.
HEADNOTE:
The deceased along with his father and brother was
living in the house owned by the accused appellant’s father.
There was dispute between the accused and the
complainant party regarding a piece of land which according
to the accused, the complainant party was forcibly
occupying.
On May 11, 1969 at about 2.45 p.m. appellant’s father
had an altercation with deceased’s brother. Thereafter he
went to deceased’s house and abused the complainant party
and started dismantling the tin-shed on the disputed land.
The prosecution’s case was that the deceased’s brother
was sent to police station to lodge a report. The deceased
came at the spot and gave a push to appellant’s father. He
fell down. Getting up, immediately, shouted for appellant
and asked him to bring the rifle and kill the complainant
party. The appellant brought a gun and fired a shot hitting
the deceased. The appellant fired the second shot which hit
another. The deceased fell down and thereafter the
deceased’s father took out a lathi and gave beating to
appellant’s father. The deceased succumbed to the gunshot
injury.
Appellant was charged under Section 302, 307, 451 IPC
and also under section 25-A of Arms Act. The father of
appellant was charged under sections 109/302, 451 IPC and 29
of the Arms Act.
The appellant and its father denied the commission of
the
467
crime. Appellant’s plea of alibi was rejected by the trial
court. It also did not believe the prosecution case in
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toto.
The appellant’s father was acquitted of all the charges
by the trial court. It convicted the appellant under
section 302 IPC and he was sentenced to imprisonment for
life, but he was acquitted of the other charges.
The High Court allowed the State’s appeal convicting
the appellant under section 307 IPC and section 25-A Arms
Act also. He was sentenced to five years and one year
rigorous imprisonment respectively for the offences.
The appellant filed this appeal before this Court by
way of special leave.
On the question, whether on the facts of the case, the
appellant-accused can claim right of private defence,
allowing the appeal, this Court,
HELD:1. It is established on the record that the
appellant’s father was being given lathi blows by the
complainant party and it was at that time that gun-shot was
fired by the appellant to save his father from further
blows. A lathi is capable of causing a simple as well as a
fatal injury. Whether in fact the injuries actually caused
were simple or grievous is of no consequence. It is the
scenario of a father being given lathi blows which has to be
kept in mind. In such a situation a son could reasonably
apprehend danger to the life of his father and his firing a
gun-shot at that point of time in defence of his father is
justified. The appellant fired the gun-shot to defend the
person of his father. [470 E-G]
2. Using the licensed gun of his father under the
circumstances of the case cannot be considered possessing an
arm without a licence. The High Court grossly erred in
setting aside the acquittal of the appellant under section
25-A of the Arms Act. [471 A-B]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos.273-74 of 1980.
From the Judgment and Order dated 19.1.1980 of the
Madhya Pradesh High Court in Crl. A. Nos. 107 of 1970 and 1
of 1971.
468
R.L. Kohli and K.C. Kohli for the Appellants.
Uma Nath Singh for the Respondent.
The Judgment of the Court was delivered by
KULDIP SINGH, J. Bhagwan Swaroop was charged under
Section 302 IPC for the murder of Man Singh and under
Section 307 IPC for an attempt to murder Shahid. He was
further charged under section 451 IPC for committing
trespass and also under section 25-A of Arms Act.
Ramswaroop, father of Bhagwan Swaroop, was charged under
sections 109/302, 451 IPC and 29 of the Arms Act.
Ramswaroop was acquitted of all the charges by the trial
court. Bhagwan Swaroop was, however, convicted under
section 302 IPC and was sentenced to imprisonment for life.
He was acquitted of the other two charges. The appeal filed
by Bhagwan Swaroop was dismissed by the High Court. The
High Court allowed the State appeal and further convicted
Bhagwan Swaroop under section 307 IPC and section 25-A Arms
Act. He was sentenced to five years and one year rigorous
imprisonment respectively for the said offences. This
appeal before us by way of special leave is by Bhagwan
Swaroop against his conviction and sentence on the three
counts.
Deceased Man Singh was the son of Shahjor Singh and
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brother of Babusingh. They were living in the house owned
by Ramswaroop and his sons. There was dispute between the
parties regarding a piece of land which according to the
accused, the complainant party was forcibly occupying. A
notice had been served upon Shahjor Singh by the accused, to
vacate the said encroachment. According to the prosecution
on May 11, 1969 at about 2.45 p.m. accused Ramswaroop had
an altercation with Babusingh, at a place called Gauri and
thereafter he rushed the complainant party and started
dismantling the tin-shed in the disputed land. Shahjor
Singh sent his son Babusingh to the police station to lodge
a report. Meanwhile Man Singh deceased came at the spot and
gave a push to Ramswaroop who as a result fell down. He got
up immediately and shouted for his son Bhagwan Swaroop and
asked him to bring the rifle and kill the complainant party.
Bhagwan Swaroop rushed to his house, brought a gun and fired
a shot hitting Man Singh. Bhagwan Swaroop fired the second
shot which hit Shahid. Man Singh fell down and thereafter
complainant Shahjor Singh took out a lathi and gave
breathing to Ramswaroop. Man Singh succumbed to the gun-
shot injury.
Both the accused denied the commission of the crime.
Accused Ramswaroop stated in his examination as under:-
469
"I found Babusingh gambling in my garden. I asked
him as to why he is doing so in the garden, he
started abusing me. I slapped him. His father
came there both of them abused me and then left the
place. I told him that I will make the report of
the incident to the police station. When I reached
near the house of Shahjor Singh on my way to the
Police Station he along with his sons caught me and
started beating me with lathies. Shahjor Singh
brought an axe, when he was about to use his axe on
me there was gun fire."
Accused Bhagwan Swaroop took the plea of alibi which
has been rejected by both the courts below. We are of the
view that the said plea was rightly rejected.
The trial court did not believe the prosecution version
in toto. The trial court found that the "prosecution tried
to indulge in exaggeration, misrepresentation and at times
suppression of facts without any meaning". The trial court
further concluded as under:-
"The defence version that Babusingh was gambling
alongwith others in the garden of the accused
Ramswaroop appears correct. Ramswaroop went there
and questioned Babusingh. There was altercation
and use of hot words. Admittedly Shahjorsingh
P.W. I came there and Babusingh accompanied him
back to his house. Ramswaroop further stated in
his examination that he gave one slap to Babusingh.
Babusingh as P.W.9 stated that he was given three
or four slaps by Ramswaroop. Thus the fact that
Babusingh was slapped, stand established in the
case".
The part of the prosecution story, that the accused
Ramswaroop rushed towards the house of Shahjor Singh and
reached there before the arrival of Shahjor Singh, was also
dis-believed by the trial court.
Regarding the actual occurrence, it is not disputed
that Ramswaroop was given four simple injuries by the
complainant. The prosecution case is that the injuries were
given after the gun-shot had been fired whereas the defence
version is that the gun-shot was fired while lathi injuries
were being given to Ramswaroop. Trial court considered the
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statements of Banne Khan, P.W.6, Shahid P.W.8, Sarfuddin
P.W.11, Safaat Ahmad D.W.1 and Hamid Ahmed D.W.3 and came to
the following conclusion:-
"Any-way this one fact is clear from the evidence
of these eye-witnesses that Ramswaroop was put to
beating, then there was gun fire and Bhagwanswaroop
was seen on the spot"
470
The trial court on appreciation of the evidence
produced by the prosecution and the complainants came to the
conclusion that the following facts stood established from
the evidence:-
"Ramswaroop, came near the house of Shahjorsingh.
There was exchange of abuses between Shahjorsingh
and Ramswaroop. Ramswaroop tried to remove the tin
shed of Gonda. He was pushed aside by Mansingh and
then put to beating by lathies."
It was under these circumstances that Ramswaroop asked
his son to fire the gun-shot. The question for our
consideration is whether on the facts of this case the
appellant can claim right of private-defence. The learned
trial court came to the conclusion that since minor injuries
were caused by the lathi there was no basis for entertaining
a reasonable apprehension that Ramswaroop would be killed or
hurt grievously and as such the plea of self-defence was
rejected. The High Court upheld the finding of the trial
court in the following words:-
"No doubt the respondent Ramswaroop had injuries on
his person. There were two simple injuries caused
by hard and blunt object and the other two could be
caused by fall for which there is definite
prosecution evidence that the respondent Ramswaroop
was pushed and he fell down. These injuries on him
could not give rise to any apprehension of either
grievous hurt or death."
We do not agree with the courts below. It is
established on the record that Ramswaroop was being given
lathi blows by the complainant party and it was at that time
that gun-shot was fired by Bhagwan Swaroop to save his
father from further blows. A lathi is capable of causing a
simple as well as a fatal injury. Whether in fact the
injuries actually caused were simple or grievous is of no
consequence. It is the scenario of a father being given
lathi blows which has to be kept in mind and we are of the
view that in such a situation a son could reasonably
apprehend danger to the life of his father and his firing a
gun-shot at that point of time in defence of his father is
justified. We, therefore, set aside the finding of the
courts below on this point and hold that Bhagwan Swaroop
fired the gun-shot to defend the person of his father.
The trial court on the basis of the evidence on the
record, including that of Dr. Mukherjee P.W.5, came to the
conclusion that only one shot was fired by Bhagwan Swaroop.
According to the trial court Shahid was accidentally hit by
the pellets spread by the gun-shot. It was on these
findings that trial court acquitted Bhagwan Swaroop of the
charge
471
under 307 IPC. We agree with the trial court and hold that
the High Court was not justified in reversing the same. The
High Court further grossly erred in setting aside the
acquittal of Bhagwan Swaroop under section 25-A of the Arms
Act. Using the licensed gun of his father under the
circumstances of this case cannot be considered possessing
an arm without a licence. We agree with the reasoning and
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findings of the trial court and hold that High Court was not
justified in setting aside the acquittal of Bhagwan Swaroop
under Arms Act.
For the reasons given above we allow the appeal, set
aside the conviction of appellant Bhagwan Swaroop under
section 302 IPC, 307 IPC and 25 Arms Act and acquit him on
all these counts. He is already in bail. His bail bonds
are discharged.
V.P.R. Appeal allowed.
472