HAFIZ versus STATE OF U.P.

Citation: [2005] SUPP. 3 S.C.R. 952 · Decided: 04-10-2005 · Supreme Court of India · Bench: S.B. SINHA

Judgment (excerpt)

A 
HAFIZ 
v. 
STATE OF U.P. 
OCTOBER 4, 2005 
B 
[S.B. SINHA AND R.V. RA VEENDRAN, JJ.] 
Penal Code, 1860: 
Section 96-Right of private defence-Exercise of-One of the accused 
C persons inflicted lathi blows on the head of the deceased-In the trial, the 
accused persons took the plea of right of private defence on the ground that 
the deceased intended to cause injuries to the accused persons with a sickle-
Trial court rejected the defence and convicted accused persons und1<r Section 
302134-However, High Court accepted right of private defence but convicted 
D the accused under S. 304 Part II on the ground that he had exceeded his 
right-But, the High Court acquitted the other three accused persons on the 
ground that they could not have shared any common intention with the convicted 
accused as he merely exceeded his right of private defence which was an 
individual act-Correctness of-Held: Right of private defence need not be 
specifically taken but if the court comes to such a conclusion it may act 
E thereupon-The sickle was 11ot found in the hands of the deceased or near the 
place where the incident took place-Hence, question of exercise of right of 
private defence did not arise-However, the occurrence had taken place at the 
spur of the moment-Hence, conviction of the accused maintained-But the 
other three accused persons had also beaten the deceased and hence are not 
F entitled to benefit of doubt-They are, therefore, convicted under S. 326134. 
According to the prosecution, the fields of the deceased and the 
accused persons were adjacent to each other being divided by a water 
channel. Altercations had taken place between the accused persons and 
the deceased as regard taking of water from the said canal for irrigational 
G purpose. PW-I, accompanied by the deceased, went to their field allegedly 
for checking as to whether the same had become ploughable. The accused 
armed with lathis came to the field and asked the deceased as to why he 
had taken water from the canal and inflicted lathi blows on the deceased. 
PW-1 raised an alarm whereupon PWs 2 and 3 came to the spot but they 
H 
952 
HAFIZ v. U.O.L 
953 
were threatened and chased away by the accused persons. Allegedly, the A 
body of the deceased was brought in a tractor by the accused persons 
themselves accompanied by 16-17 persons. 
During the trial the accused raised two divergent defences: (i) the 
deceased had cut the crop of bajra which was ripe from their field and, 
when caught by the appellant, the deceased having sickle with him intended B 
to cause injuries upon the appellant. The appellant, in exercise of his right 
of private defence, hit the deceased on his head with lathi; and (ii) when 
the deceased was caught and brought to the police station, the 'Daroga' 
while interrogating the deceased kicked him as a result whereof he fell 
down. 
The Sessions Judge rejected both the defences and found the accused 
persons guilty of an offence under Section 302 read with Section 34 of the 
Penal Code, 1860. 
c 
On appeal, the High Court accepted the defence of right of private D 
defence raised by the appellant but convicted the appellant under Section 
304 Part II IPC holding that he had exceeded his right of private defence. 
But the High Court acquitted the other three accused on the ground that 
they could not have shared any common intention with the appellant as 
he had merely exceeded his right of private defence which was an E 
individual act. Hence the appeal. 
Disposing of the appeal, the Court 
HELD: I. Indisputably; there exist certain discrepancies in the 
statements of the prosecution witnesses but, from the broad feature of the F 
case, the prosecution has been successful in bringing home the charges 
levelled against the accused. [959-E-F] 
2. If the defence case is to be believed, the sickle should have been 
found in the hands of the deceased or near the place where the incident 
took place. It is not in dispute that the appellant and other persons came G 
to the police station purportedly for the purpose of lodging the First 
Information Report (FIR) against the deceased on the premise that he had 
cut the bajra crops from their field. According to them, he was alive then. 
It was, therefore, necessary for the defence to bring the said sickle with 
them either for the purpose of showing that with it the crop of bajra was H 
954 
SUPREME COURT REPORTS [2005] SUPP. 3 S.C.R. 
A being cut and/or it was with the said weapon he

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