HARISH KUMAR AND ANR. versus STATE OF M.P.

Citation: [1996] SUPP. 3 S.C.R. 296 · Decided: 09-07-1996 · Supreme Court of India · Bench: M.M. PUNCHHI · Disposal: Appeal(s) allowed

Judgment (excerpt)

A 
B 
c 
D 
HARISH KUMAR AND ANR. 
v. 
STATE OF M.P. 
JULY 9, 1996 
[M.M. PUNCHHI AND SUJATA V. MANOHAR, JJ.] 
Oiminal Law : 
Penal Code, 1860: Section 97. 
P1ivate defence of person-Right of-:-Accused and their father suffered 
pellet injwies~Accused becoming apprehensive of danger to himself and his 
family meinbm· fired one shot on deceased-Accused look plea of p1ivate 
defenc(f-Held : In peculiar facts and circumstances of the case, presence of 
injwies alone did not probabilise their plea of private defenc(f-Some un-
jJleasantness had occiured earlier and tlzat nienzbers of coniplainant party 
started assembling near house of accused-No indiscriminate filing but only 
one shot fired by accused-In the circumstances of the case, the possibility 
could not be mled out that the accused becoming apprehensive of danger to 
himself and his family members chose to be defensive in becoming offensive 
E without having the requisite intention to cause the murder of any particular 
person-His act would, therefore, be temied as one in exercise of the right of 
private defence of person entitling him to acquittal. 
F 
Section 307134-<:omplainant sat down and escaped rifle shot injury at 
the hands of accused-High Court convicted accused on such finding-Held 
: such a finding was an exaggeration-High Court not justified in convicting 
accused on such a finding. 
Criminal T1ial-Injwy-Whether self inflicted-Detennination of-Held 
: the situs of a pmticular injwy can not be the sole basis to detennine whether 
G a fiiendly hand had caused it-Nature of injury too could speak prominently. 
Evidence Act, 1872 : Section 32. 
Dying declaration fixed accused as author of fatal injury-Held: That 
by itself can not be a cmroborative factor to establish the murder charge 
H having regard to plea of self-defence taken by accused. 
296 
BARISH KR. v. STATE 
297 
The appellants were convicted under Section 302 read with Section A 
34 of the Indian Penal Code, 1860 and sentenced to undergo rigorous 
imprisonment for life. They were also convicted and sentenced to five years' 
rigorous imprisonment. Both the sentences \Vere to run concurrently. 
According to the prosecution, the parties involved had formed fac-
tions, one represented by the complainant and the other by the accused. 
The appellants H and Rand their co-accused, who constituted a family by 
themselves, had their residential house in a lane. On the day of the incident 
C, of the rival faction, was passing in that lane. N, the father of the 
appellants H and R, caught hold of the hands of C and told him that he 
B 
was indulging in gundagardi (hooliganism) and that he would be set right C 
by them. Appellants H and R were said to be present there. H was armed 
with a ri!le and R was armed with a .12 bore gun. Others were empty 
handed. On being exhorted by N to kill C, H tired his rifle at him even 
when N was holdong the hands of C. Neither of the two was hurt by the fire 
as both had sat down instinctively. Freeing his hands from the hands of 
N, C started running away in the lane when R fired at him from his .12 
bore gun. This time also the fire missed. Some pellets of the second fire 
however hit 4 other persons. This was stated by the prosecution to be the 
first incident. 
Instead of retiring from the tension-ridden place after the first 
incident members of the rival faction sat at the closeby tea shop. There-
after, all the five accused came out from their house when H, as before, 
was having a rifle, R, as before, a .12 bore gun and the remaining three 
accused armed with kattas. On the exhortation of N, the ap1iellant H 
allegedly fired a rifle shot towards the victim which hit him on the left side 
of his chest, whereupon he fell down. The five appellants then escaped from 
the place of occurrence. This \Vas termed to be the second incident. 
The victim in an injured condition was admitted to the government 
hospital where he died. A dying declaration of the deceased was recorded 
D 
E 
F 
by the doctor on duty. A First Information Report was lodged and a G 
post-mortem was held. The trial court acquitted all the accused. On appeal 
against ac11uittal the High Court reversed the acquittal of appellants H 
and R. 
In the appeal before this Court, on behalf of appellants Hand Rit was 
contended that there was only one occurrence in which the complainant H 
298 
SUPREME COURT REPORTS [1996] SUPP. 3 S.C.R. 
A party injured the father or the appellants and also caused pellet

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