A person faced with injury with a deadly weapon to his life cannot be expected to weigh in balance the precise force needed to avoid danger. No doubt normally the right of private defence is not available to either of the parties in incidents of group fighting, but that is not a rule without exception.-2015 S.C. msklawreports

  A person faced with injury with a  deadly  weapon  to  his  life  cannot  be
expected to weigh in balance the  precise  force  needed  to  avoid  danger.

No doubt normally the right of private defence is not  available  to  either
of the parties in incidents of group  fighting,  but  that  is  not  a  rule
without exception.-2015 S.C. msklawreports

Exception 2 to Section 300 IPC reads as under: -
"Exception 2.-Culpable homicide is  not  murder  if  the  offender,  in  the
exercise in good faith  of  the  right  of  private  defence  of  person  or
property, exceeds the power given to him by law and causes the death of  the
person  against  whom  he  is  exercising  such  right  of  defence  without
premeditation, and  without  any  intention  of  doing  more  harm  than  is
necessary for the purpose of such defence."

 It  is  settled
principle of law that in  the  cases  of  free  fights  accused  are  to  be
fastened with individual liability taking into  consideration  the  specific
role assigned to each one of them, and normally right of private defence  is
not available in such cases unless circumstances in  a  given  case  warrant

 In the case at hand,  
we  have  a  special  circumstance
where the injured person (appellant no. 1) who was given 2cm x 2cm  x  1.5cm
deep knife blow  on  his  back  (scapular  region)  has  retorted  by  using
licensed firearm, and killed  one  of  his  rivals  in  the  same  incident.
Accused/appellant Pathubha Govindji has taken plea of private defence  right
from beginning of the trial.  
From the judgment of the trial court also,  it
is clear that the plea of private defence was taken by the  appellant  no.1.
Considering the facts and circumstances of the present case and evidence  on
record, it is evident that accused/appellant no.1 Pathubha  Govindji  Rathod
who suffered knife injury in the incident has caused death  of  one  of  the
deceased  by  firing  several  shots  thereby  exceeding  right  of  private
defence.  Injuries suffered by both the sides are on record.
In the above circumstances, from the evidence, as discussed  above,  we  are
inclined to accept the argument that it is a case of culpable  homicide  not
amounting to murder covered  under  Exception  2  of  Section  300  of  IPC.
Therefore, after  weighing  the  submissions  of  learned  counsel  for  the
parties and going through the papers on record, we are of the  opinion  that
appeal of the  accused/appellant  no.  1  deserves  to  be  allowed  partly.
Accordingly, the appeal is partly allowed and the  conviction  and  sentence
recorded against accused/appellant no.1 under  Section  302  IPC  read  with
Section 149 IPC is set aside.  
Instead he (accused/appellant  no.1  Pathubha
Govindji Rathod) is convicted under Section 304 Part-I IPC and sentenced  to
imprisonment for a period of ten years and directed to pay fine of Rs.5000/-
, in default of payment of fine he shall undergo simple imprisonment  for  a
further period of six months.  He is reported to have undergone  nine  years
and six months of imprisonment.  He shall serve out       unserved  part  of
the   sentence.    
The   conviction   and    sentence    recorded    against
accused/appellant no. 2 Hemubha Govindji Rathod under  Section  304  Part  I
read with Section 149 IPC, does not require any interference.
The appeal stands disposed of. -2015 S.C. msklawreports

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