"Right Of Private Defence Theory Not Acceptable" : Allahabad High Court Upholds Life Sentence In A 41 Year Old Murder Case

Rejecting the theory put up by a convict of Right To Private defence, the Allahabad High Court (Lucknow Bench) UPHELD the life imprisonment awarded by the trial court to the convict/Raj Kumar (appellant no 1) in a 41-year-old murder case.

The Bench of Justice Ramesh Sinha and Justice Saroj Yadav however, SET ASIDE the conviction of appellant no. 2/Raj Kishore under Section 302 r/w Section 34 of IPC in connection with the same murder case, as it noted that the prosecution had failed to prove a prior meeting of minds between appellant no. 1 (Raj Kumar)/Murder Convict and appellant no. 2 (Raj Kishore).

The case in brief 

As per the FIR, on November 22, 1981, at about 3:00 P.M. the uncle of the complainant (Prabhu Dayal) found that the cattle of Raj Kumar (appellant no. 1) were grazing and destroying the paddy crop, therefore, he went to the house of Raj Kumar at about 3:30 P.M. to make a complaint about the same.

Both Raj Kumar (appellant no 1) and Raj Kishore (appellant no 2) met him there and they had an altercation. After that, Raj Kumar brought a gun and Raj Kishore a stick (lathi) from their houses.

Upon this, the uncle of the complainant raised a hue and cry. Hearing a noise, the complainant, his father/Ram saran (deceased), and many other people reached there.

Thereafter, Raj Kishore (appellant no 2) assaulted the complainant's uncle Prabhu Dayal with a stick and Raj Kumar (appellant no 1) fired a gun at the father of the complainant (deceased/Ram Saran), which hit him and he died in front of the house of appellants.

On the other hand, as per the version of appellant no.1 (Raj Kumar), he and his cousin (Raj Kishore/Appellant no. 2) found that Prabhu Dayal (uncle of the complainant) was collecting wood from his orchard, he objected to it. Thereafter, Prabhu Dayal ran away to his house abusing him.

Further, the deceased (Ram Saran), along with six-seven other persons reached there armed with a country-made pistol they all challenged him and also said that they would set his house ablaze.

Thereafter, he [appellant no.1 (Raj Kumar)] entered his house and raised noise in order to save himself, however, when he sensed that they would enter his house, he picked up his father's licensed gun, and as soon as Ram Saran (deceased) aimed at him, he (Raj Kumar) fired upon him on account of which, he died.

After taking into account the facts, circumstances and evicen adduced in the case, the trial court concluded that Raj Kishore and Raj Kumar had a common intention to kill the deceased and therefore, both the accused were held guilty under Section 302 read with Section 34 of I.P.C.

Both the accused/appellants were also held guilty under Section 325 read with section 34 of I.P.C. for causing grievous hurt to Prabhu Dayal (uncle of the complainant) and convicted accordingly.

Court's observations 

Before the Court, the Appellant no. 1 raised a plea that he had fired with the gun on the deceased in the exercise of his right to private defence and therefore, the Court had to consider as to whether he acted in exercise of the right of private defence or he committed the murder of the deceased.

The Court noted that appellant no. 2 (Raj Kishore), the real cousin of appellant no. 1 (Raj Kumar) had not stated anything about the exercise of right of private defence. The Court also noted that no country made pistol was recovered from the dead body or near the dead body of the deceased and further, appellant no. 1 had not received any kind of injury to his person and no damage was caused to his property.

Significantly, the Court also noted that Raj Kumar had full opportunity to escape from that gate to take recourse of law for saving himself and his property, if there was any danger.

"Without receiving any bruise on person of himself or the near or dear one or any damage to property he fired upon the deceased. The evidence and circumstances narrated and the evidence available on record does not establish or point out that appellant Raj Kumar acted in exercise of right of private defence," the Court concluded. 

The Court also noted that there was a major contradiction on the point that six to seven persons came to his house and exhorted Ram Saran to kill Raj Kumar. Further, Raj Kumar did not say anything as to whether these six to seven people were armed with deadly weapons, except that there was a country-made pistol in the hand of Ram Saran/Deceased.

Hence, the Court concluded that it was established that the appellant no. 1/ Raj Kumar had fired upon the deceased with the intention to kill him and he died, so the Court held that he was rightly held guilty and punished under Section 302 of I.P.C.

Now, regarding the role of the appellant no. 2, the court noted that there was nothing on record to suggest that they planned with each other to kill the deceased Ram Saran, meaning to say that no meeting of minds between appellant Raj Kumar and Raj Kishore has been established.

In these circumstances, the Court held thus:

"...both the appellants would be liable for their individual act and appellant Raj Kishore cannot be held guilty and convicted under Section 302 of I.P.C. with the help of section 34 of I.P.C. Raj Kishore assaulted Prabhu Dayal with lathi (stick) causing injury which amount to an offence under Section 325 of I.P.C. and he is liable to that extent only."

The operative part of the order

- The gunshot injury causing death of the deceased Ram Saran was caused by Raj Kumar only and there was no prior meeting of minds between Raj Kumar and Raj Kishore, hence Raj Kishore is not liable for conviction U/s 302 I.P.C read with Section 34 I.P.C. Raj Kishore caused injury to Prabhu Dayal and that act travels upto the extent of offence defined under Section 325 I.P.C., Hence, the conviction of appellant Raj Kishore under Section 325 of I.P.C. is confirmed, but conviction of Raj Kishore under Section 302 read with Section 34 of I.P.C. is hereby set aside.

- The convict Raj Kishore- appellant No.2 BE released from the concerned jail

- The appellant No.1 Raj Kumar is in jail, hence he shall serve the sentence awarded by the trial court and modified by this Court under Section 302 I.P.C. only.

Case title - Raj Kumar and Raj Kishore v. The State

Case Citation: 2022 LiveLaw (All) 151

Click Here To Read/Download Order