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."
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
so.
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
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
so.
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