Nafr High Court
Case Details
1 2025:CGHC:28579 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 1155 of 2007 Judgment reserved on : 02.04.2025 Judgment delivered on : 27.06.2025 Digitally signed by RAMAKANT NIRALA 1 – Sendla, S/o Janeb Aghariya, aged about 26 years, R/o Village Kodu, Police Station Rajpur, District Sarguja (C.G.) versus Appellant 1 - State Of Chhattisgarh through District Magistrate, Sarguja (C.G.) Respondent For Appellant For Respondent(s) : :
Legal Reasoning
Penal Code, excepting from its penal provisions, certain classes of acts, done in good faith for the purpose of repelling unlawful aggressions, the Legislature clearly intended to arouse and encourage the manly spirit of self-defence amongst the citizens, when faced with grave danger. The law does not require a law-abiding citizen to behave like a coward when confronted with an imminent unlawful aggression. As repeatedly observed by this court there is nothing more degrading to the human spirit than to run away in face of danger. The right of private defence is thus designed to serve a social purpose and deserves to be fostered within the prescribed limits. 40. The law clearly spells out that right of private defence is available only when there is reasonable apprehension of receiving the injury. The law makes it clear that it is necessary that the extent of right of private defence is that the force used must bear a reasonable proportion of the injury to be averted, that is the injury inflicted on the assailant must not be greater than is necessary for the protection of the person assaulted. A person in fear of his life is not expected to modulate his defence step by step, but at the same time it should not be totally disproportionate. 58. The following principles emerge on scrutiny of the following judgments: (i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits. (ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation. (iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised. (iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co- terminus with the duration of such apprehension. (v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. 7 (vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property. (vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record. (viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt. (ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence. (x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.” 10. In view of the aforesaid legal proposition and considering the entire evidence available on record, it is clear that the accused/appellant had no intention or knowledge to kill the deceased and the deceased was infact snatching hands of complainant’s mother-in-law and the appellant, complainant Badiya and Reejhan were only trying to intervene the quarrel. No eye witness supported the case of the prosecution and no witness stated that the appellant assaulted the deceased instead witnesses stated that during quarrel, the deceased was trying to snatch the hands of the mother-in-law of the complainant and during intervention by the appellant, complainant Badiya and Reejhan, the deceased fell down in wood, as such no offence under Section 304 Part-II of IPC is made out against the appellant, hence the finding recorded by the learned Trial Court is not sustainable. 11.
Arguments
Ms. Nirupama Bajpai, Advocate Ms. Nand Kumari Kashyap, PL Hon’ble Smt. Justice Rajani Dubey C A V Judgment 1. The present appeal is directed against the judgment of conviction and order of sentence dated 18.09.2007 passed by the learned Session Judge, Sarguja, Ambikapur (C.G.) in Session Case No.236/2006, whereby the appellant has been convicted under Section 304 Part-II of IPC and sentenced to undergo RI for 10 years. 2 2. The prosecution case, in brief, is that there was a quarrel between appellant and deceased Dhannu on account of the partition of the land and Badiya and Rijhan intervened into the matter, but the appellant uttered the abusing words against the deceased and assaulted him by wooden stick on his head, on account of which deceased sustained severe injuries on his head and became unconscious and was hospitalized, thereafter a case was registered against the appellant and ultimately the deceased expired on 31.03.2005. After investigation, charge sheet was filed before the Magistrate concerned. On the basis of the evidence adduced by the prosecution and material available on record, learned trial court convicted the accused/appellant, as mentioned in para 1 of the judgment. 3. Learned counsel for the appellant submits that the judgment passed by the learned Trial Court is contrary to law and material available on record. PW-2 Maniram, PW-3 Amirnath, PW-4 Rijhan have not supported the prosecution case and have turned hostile. There are also material omissions and contradictions in the statements of the other prosecution witnesses. The learned Trial Court has wrongly believed the testimony of the Dr. Rajesh (PW-7). He referred the deceased for better treatment but family members of deceased got him discharged early as such he could not get proper treatment on time and thereafter died. She further submits that the incident took place due to sudden fight and the appellant was not having any intention to kill the deceased and 3 the same happened in the heat of passion. The deceased Dhannu came to the house of of the appellant in a drunken condition and started beating his mother, as a result of which he tried to intervene, in which the deceased sustained injuries on his head and was subsequently died, but all these aspects of the matter have been ignored by the learned Trial Court and the appellant has wrongly been convicted for the aforesaid offence. 4. Per contra, learned State counsel supports the impugned judgment and submits that the learned Trial Court has minutely appreciated the evidence available on record and has rightly convicted the appellant. Therefore, the appeal deserves to be dismissed. 5. Heard learned counsel for the parties and perused the material available on record. 6. It is clear from the record of the learned Trial Court that the learned Trial Court framed charges under Section 302 of IPC against the appellant and after appreciation of oral and documentary evidence available on record, the learned Trial Court convicted the appellant under Section 304 Part-II of IPC, as mentioned in para 1 of the judgment. 7. It is not disputed in this case that the incident took place on 22.03.2006 and the deceased died on 31.03.2006. Badiya (PW- 1) stated that on the date of incident, Dhannu came to his house and tried to scrummage with his mother-in-law and fell down in 4 clubs/sticks. The prosecution declared him hostile and cross- examined him but he denied this suggestion of the prosecution that the appellant assaulted Dhannu by club. Mani Ram (PW-2) and Amirnath (PW-3) admitted their signatures on memorandum (Ex-P/2) and seizure memo (Ex-P/3 & P/4), but they have not stated about the incident and when the prosecution declared them hostile and cross-examined them, then they denied all suggestions of prosecution. Reejhan (PW-4) stated that Dhannu was trying to commit maarpeet with her mother and when she went to intervene, then Dhannu fell down in the wood/club. 8. Dr. Rajesh Bhajgawli (PW-7), who conducted postmortem of the deceased admitted this fact that he did not find any fracture on the head of the deceased Dhannu. It is clear from the statement of the witnesses and inquest memo (Ex-P/13) that the deceased left the hospital against medical advice. It is clear from the statement of the eye witness and the complainant that on the date of incident, deceased was quarreling with mother-in-law of Badiya and in scrummage, he fell down in wooden sticks/clubs. The learned Trial Court also found that the deceased left the hospital on 28.03.2006 and he died on 31.03.2006 and he could not be admitted in the hospital due to scarcity of money. Thus it is clear that the accused/appellant had no intention or knowledge to kill the deceased and the deceased was snatching hands of complainant’s mother-in-law and the appellant, complainant Badiya and Reejhan were only trying to intervene the quarrel. No 5 eye witness supported the case of the prosecution and no witness stated that the appellant assaulted the deceased instead witnesses stated that during quarrel, the deceased was trying to snatch the hands of the mother-in-law of the complainant and during intervention by the appellant and Reejhan, the deceased fell down in wood. In these circumstances, the offence under Section 304 Part-II of IPC is not made out against the appellant. 9. The Hon’ble Supreme Court in the matter of Darshan Singh vs State of Punjab and another, reported in (2010) 2 SCC 333 held in paras 23, 24, 25, 34, 40 & 58 as under:- “23. It is settled position of law that in order to justify the act of causing death of the assailant, the accused has simply to satisfy the court that he was faced with an assault which caused a reasonable apprehension of death or grievous hurt. The question whether the apprehension was reasonable or not is a question of fact depending upon the facts and circumstances of each case and no strait-jacket formula can be prescribed in this regard. The weapon used, the manner and nature of assault and other surrounding circumstances should be taken into account while evaluating whether the apprehension was justified or not? SCOPE AND FOUNDATION OF THE PRIVATE DEFENCE 24. The rule as to the right of private defence has been stated by Russel on Crime (11th Edn., Vol.1, p.491) thus: "..... a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended, and if in a conflict between them he happens to kill his attacker, such killing is justifiable." 25. When enacting sections 96 to 106 of the Indian 6
Decision
Consequently, the appeal is allowed. The impugned judgment of 8 conviction and order of sentence is hereby set aside. The appellant is acquitted of the charges under Section 304 Part-II of IPC. 12. The appellant is reported to be on bail. 13. Keeping in view the provisions of section 481 of BNSS 2023, the appellant is directed to furnish a personal bond for a sum of Rs.25,000/- before the court concerned forthwith, which shall be effective for a period of six months along with an undertaking that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereof, shall appear before the Hon’ble Supreme Court. 14. The trial Court record along with a copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. Sd/- Nirala Rajani Dubey Judge