NAGJI ODHAVJI KUMBHAR & ANR. versus STATE OF GUJARAT

Citation: [2019] 6 S.C.R. 249 · Decided: 23-04-2019 · Supreme Court of India · Bench: SANJAY KISHAN KAUL · Disposal: Dismissed

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Judgment (excerpt)

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NAGJI ODHAVJI KUMBHAR & ANR.
v.
STATE OF GUJARAT
(Criminal Appeal No.880 of 2009)
APRIL 23, 2019
[SANJAY KISHAN KAUL AND HEMANT GUPTA, JJ.]
Penal Code, 1860:
ss. 302 and 324 r/w s. 34 – Prosecution under – Death of two
persons and injuries to two – Injuries also received by the accused
– Cross-case by the accused – Conviction by courts below – In
appeal, plea taken that the accused acted in private defence and at
the spur of the moment without pre-meditation – Held: There is no
evidence that the deceased were armed with any weapon – In view
of the evidence of injured witnesses that the accused were armed
with spears and other weapons and since the deceased were not
armed, right of private defence is not available to the accused –
The act of the accused also cannot be said to be at the spur of the
moment without pre-meditation – Therefore, they are also not entitled
to alternation of conviction from s. 302 to s. 304 – Conviction
u/s. 302 upheld.
Dismissing the appeal, the Court
HELD: 1. The prosecution has relied upon the statement
of complainant PW-3 as also the statement of PW-4 who are
injured witnesses. PW-2, the doctor has been examined to prove
the injuries on prosecution witnesses. It is statement of PW 3
which led to lodging of First Information Report that the appellants
who were 7 to 8 in number challenged the witnesses. The
appellants were having spear, accused was having axe and others
were having sticks. They attacked the deceased and both the
injured witnesses with spears and axe. [Paras 12, 13][254-F-H]
2. The appellants have lodged cross First Information
Report. There is no evidence on the part of the appellants that
the deceased were armed with any weapon in the first version,
when they lodged report. The right of private defence is not
   [2019] 6 S.C.R. 249
249
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SUPREME COURT REPORTS
[2019] 6 S.C.R.
available when the alleged assailants are unarmed. The right of
private defence is to protect the person and the property. In such
right, the person cannot cause more harm than what is necessary
for the protection of the person and the property. What harm can
be expected from the hands of the deceased when they were un-
armed, whereas from the testimony of PW-3 and PW-4, the injured
witnesses, the appellants were armed with spears and other
weapons. The Post-Mortem report corroborates an oral
testimony that both the deceased have received stab wounds.
Therefore, the appellants cannot be said to have acted in the
right of their private defence. Since the deceased were not armed,
therefore, the appellants are not entitled to the right of private
defence.  [Paras 15, 17][255-A-D; 256-A]
Jangir Singh v. State of Punjab  2018 (15)  SCALE 88
– distinguished.
3. Since there are multiple wounds on the chest of the
deceased, it cannot be said that the appellants have acted at the
spur of the moment without pre-meditation and that the appellants
have not taken any advantage or acted in a cruel or unusual
manner. It is not a case of single injury which one can infer on
account of sudden fight. Therefore, the appellants are not entitled
to be convicted under Section 304 IPC as they have given multiple
injuries on the vital parts of the deceased. The Trial Court as
well as the High Court was perfectly justified in law in convicting
and sentencing the appellants for the offence under Section 302
IPC. [Para 18][256-A-C]
Case Law Reference
2018 (15)  SCALE 88
 distinguished
Para 7
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 880 of 2009.
From the Judgment and Order dated 24.10.2008 of the High Court
of Gujarat at Ahmedabad in Criminal Appeal No. 234 of 1990.
Ravi Prakash Mehrotra, Ankit Agarwal, Ms. Deepti R. Mehrotra,
Advs. for the Appellants.
Ms. Jesal Wahi (for Ms. Hemantika Wahi), Adv. for the
Respondent.
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The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. The challenge in the present appeal is to an order passed by the
High Court of Gujarat at Ahmedabad on 24.10.2008 maintaining conviction
for offences under Sections 302 and 324 of IPC against the appellants
for causing death of Bhura Govind and Lakha Arjan.
2. The prosecution case is that on 1st July 1987 at about 12 midnight
in Village Prempara-Rampara, the appellants caused injuries to Bhura
Govind and Lakha Arjan with spears etc and on account of grievous
injuries inflicted, both of them died on the spot. The FIR was lodged at 7
AM on 2nd July 1987 and the appellants were arrested o

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