LexRAJESH KUMAR ETC. versus DHARAMVIR AND ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A B c RAJESH KUMAR ETC. v. DHARAMVTR AND ORS. MARCH 12, 1997 [M.K. MUKHERJEE AND BN. KIRPAL, JJ.) Criminal Procedure Code, 1913--Secfion 378-Appcal against acquit- tal-Scope-Pmvers of High Cowt to intc1fen~-Substa11tial e1rors of law and fact-lntC1ference justified. Indian Penal Code. 1860--Section 96.100,11)5-Private Defence---Right of-Scope-Held, such a tight can be exercised only to repel unlawful aggres- sion and not to retaliate. Evidence Act, li:i72-Sectio11 3--Plea of alibi-Standard of proof- D Held, a plea of alibi must be proved with absolute cenainty so as tu com- pletely exclude presence of the pet:ffJ/l concernrd. Respondent D along with his three brothers Sh, SB and Sr, and son Y were rnnvicted for offences u/Ss 148, 302/149, 307/149 IJ'C of rioting, E committing murders of three deceased persons, and attempting to commit the murder of his brother. In appeal the High Court set aside their convictions and sentences. These appeals bad been filed against the judg- ment of acquittal. Th~ families of the deceased and the accused closely related, used to F live in adjacent houses and over a shop, litigations were going on between the two families. Prosecution case that the five accused and one L (since deceased) started demolishing the inner boundary wail of the shop in order to make it a part of their own house and on hearing the sound the deceased Y went to the lane in front of their house and asked the accused not to demolish the wall; that immediately thereafter accused D, armed with a G lathi and other four accused and L with knives came out of the shop and started intlicting blows on Y with their respective weapons; that on hearing the alarms raised by him when PW 13, his father D and his grandfather S came forward to his rescue, accused Sb, L and Sr assaulted PW13 with their knives and all the five accused persons and L also assaulted D and H S causing injuries on their persons; that D fired a short from his licensed l012 ( • RAJESH KUMAR ETC. v. DHARAMVIR 1013 gun, which hit L and thereafter the five accused persons ran away with A their weapons. Y succumbed to bis injuries there, injured S and L died in the hospital while D died after about 13 days of the incident. The accused pleaded not guilty to the charges levelled against them. The trial Court recorded their convictions accepting the version of the prosecution in preference to that of the defence. The High Court upset the B judgment of the trial Court, accepting the plea of right of private defence of person and property raised by the accused persons though the findings recorded were in agreement with the findings ol' the trial Court. In this appeal filed against the judgment of the High Court, the appellants con- tended that the ju~gment of the High Court was patently wrong as it was C based on contradictory findings and misappreciation of principles of law relati.ng to the exercise of right of private defence. The respondents submitted that the order of acquittal passed in their favour was based on proper appreciation of evidence and that this Court would not be justified in interfering with the same as it was neither vitiated D by any grave error of law nor did it cause serious micarriage of justice. Allowed the appeals, this Court HELD : l.1. Ordinarily th~s Court does not interfere with an acquit- tal record!;!d by the High Court but if it is found that the order of acquittal E suffers from substantial errors of law and fact, it. becomes the duty .of this Court to interfere with the same to redeem the course of justice. [1018-A-B] . . 1.2. The observations made by the High Court that com1ilainants came to the spot together armed with deadly weapons, run counter to the positive case made out by the accused themselves. The High Court was F therefore not justified in making out a third case based on surmise and conjecture. [1020-H; 1021-A, 1021-C] 1.3. A right of private defence can be exercised only to repel unlawful aggression-and not to retaliate. To put it differently, the right is one of defence and not of requital or reprisal. Such being the nature of right, the G High Court could not have exonerated the accused persons of the charges levelled against them by bestowing them the right to retaliate and attack the complainant party: Placing reliance on evidence o'· DW3, a procured wit- ness, the conclusions drawn by the High Court that"the complainant party tried to break o
Excerpt shown. Read the full judgment & AI analysis in Lexace.