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Nagji Odhavji Kumbhar and Ors. Vs. State of Gujarat - (Supreme Court) (23 Apr 2019)

Right of private defence is not available, when assailants are unarmed



The challenge in the present appeal is to an order passed by the High Court maintaining conviction for offences under Sections 302 and 324 of Indian Penal Code, 160 (IPC) against the Appellants. The argument of learned Counsel for the Appellants is that, the deceased and their accomplices, 9 in number, were the aggressors. The injuries have been inflicted on both the Appellants. Such injuries have been proved by Doctor who was posted at Civil Hospital, at the relevant time. The Appellants have received grievous injuries, while protecting the possession of their land, thus, they have acted in their right of private defence.

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 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. It has been held in the judgment of this Court in Jangir Singh v. State of Punjab, that in order to succeed in such plea of private defence, it must be proved that the right of private defence extended to cause death.

The deceased had multiple stab wounds on the chest. Since there are multiple wounds, it cannot be said that, the Appellants have acted at the spur of the moment without pre-meditation and that the Appellants are 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. The learned 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. The criminal appeal is dismissed.


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