Case: State Of M.P Vs. Ramesh

2. Prosecution version in nutshell is as follows:On 20.5.1986 deceased Rajendra and Kuldeep (PW 1) were returning after their examination. They were passing in front of the house of Ram Kripal (acquitted accused) who was a municipal counciler those days. Ram Kirpal knowing that these boys were friendly with Dineshwho was a press reporter of that area, advised them to abjure company of Dinesh. Finding themRam Kirpal, his two sons Ramesh and Rakesh and his wife Nonibai started pelting stones on deceased Rajendra and Kuldeep (PW 1). Thereafter, Ram Kirpal asked his son Ramesh to get his gun from the house. Ram Kirpal asked Ramesh to shoot these boys, Ramesh then brought out a 12 bore gun and fired a shot at deceased Rajendra from a distance of about 5 paces. At that time Dinesh (PW 2) reached there while the shot was fired. This shot struck Rajendra in the left iliac crest passing through the stomach region and damaged various internal organs. It emerged from the right side of the body and struck Krishna (PW 6) who also happened to reach by that time. The bullet struck him in the left arm and passed through fleshy portion and then struck the back region and got embeded on the spinal cord, ultimately resulting in paralysis. Rajendra died at the spot.3. The prosecution case based on the testimony of Kuldeep (PW 1), Krishna2), Sureshwar Pandey, ASIwho also happened to be present there and had witnessed the incident. Further reliance was placed on the medical report of autopsy surgeon and medical opinion regarding injuries of Krishna. Medical report showed that deceased Rajendra had been struck with the gun shot which entered into left iliac crest and emerged in the right side and injured some vital organs such as Kidney, Spleen and Liver. The FIR was lodged by Kuldeepon the same day within 10 minutes after this incident.4. The accuseds case was that Rajendra had approached Ram Kirpal in his capacity as Municipal Councillor to obtain his residential certificate. He had gone with the other boy. Ram Kirpal knew that Rajendra was in fact resident of Uttar Pradesh and not resident of Chhatarpur, so he declined. This resulted in exchange of hot words. Rajendra had been persuaded by Dinesh (PW 2) who was a press reporter and whose writings were used to be against Ram Kirpal in respect of developments of various areas of municipality. Dinesh (PW 2) had also tried to put his influence of Ram Kirpal for issuing certificate to Rajendra but Ram Kirpal did not oblige. He was attacked by these boys and the he suffered 5 injuries. He was medically examined next day after the incident and 5 injuries caused by blunt object were found on his person. So his case was that since he was attacked by these boys, he called for help from his sons. Ramesh brought out a gun and that gave rise to the firing.5. The story of the first attack on Ram Kirpal did not find favour with the trial Court and the story of the prosecution was accepted, although presence of Sureshwar Pandey was not accepted by the trial Court and his testimony was found to be false. But the trial Court held that the firing was deliberate and, therefore, the finding of guilt under Section 302 was returned regarding death of Rajendra. Coaccused persons were however acquitted.6. Accused filed appeal before the High Court and contended that it was clearly a case where right of self defence was available. Even if it is held that while acting for protecting the private defence of his father he had exceeded limit, Section 302 IPC would not be attracted. It was pleaded that while Ram Kirpal and his family were at their home deceased and Kuldipwere returning after examination. In the ordinary course of conduct Ram Kripal would not have advised them to keep away from PW 2. There was no reason for him and his family members to start pelting stones. If such incident would have happened, there certainly was possibility of reaction from the side of the deceased and his friends that has not been disclosed. The story of pelting stones has been disbelieved by the trial Court. Five injuries which were there on the body were not explained by the prosecution. On the other hand, the plea of defence is more acceptable. The deceased was attacked and certainly he became violent and attacked accusedrespondent Ramesh and caused injuries and Ramesh emerged from his house. Ramesh was acting in self defence of his father.7. Prosecutions stand was that it is clearly a case of deliberate killing and there was no basis for inferring any right of self defence. The trial Court accepted the plea of self defence and altered the conviction to Section 304 Part I IPC and awarded custodial sentence of 12 years. Such alteration is subject matter of challenge in this appeal.

Reasoning:
It is not necessary for the accused to plead in so many words that he acted inIf the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 (in short the Evidence Act), the burden of proof is on the accused, who sets up the plea ofand, in the absence of proof, it is not possible for the Court to presume the truth of the plea ofThe Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea ofis on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. the IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence. It is a right or defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right, care has been taken in IPC not to provide and has not devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.18. We find that the High Court has acted on surmises and conjectures to conclude certain aspects. Firstly, it has come to conclude that the boys including the deceased attacked Ramesh "may be with fists, may be with some blunt weapon". There was no evidence in this regard. It was further held that there was no reason for Ram Kirpal and his family members to pelt stones. The deceased and his friends attacked Ram Kirpal though weapon used by them are not known. Reference was made to the injuries on Ram Kirpal. it was further held that probably some heat was generated either because of the advise of Ram Kirpal was not accepted or because request of the boys to issue certificate was not accepted by him. Because of the heat generated between the boys and Ram Kirpal, the boys started hitting Ram Kripal causing injuried. In this condition "probably" he asked his sons to shoot the assailants and Ramesh fired a gun shot resulting in fatal injury to deceased and grievous injury to Krishna. It was further held that when there was some exchange of hot words between the deceased and his friends, on one hand and Ram Kishan on the other the boys started attacking on his father and this was grave and sudden provocation to the sons. In the aforesaid background it was held that when Ram Kirpal asked his sons to kill. Exception I to Section 300 would be attracted. The conclusions are not based on evidence and are based on surmises, conjectures and guess work. As aforesaid noted, it was first concluded that right of private defence was exceeded. It was further held that the case is covered by either Exception I or Exception II to Section 300, as injuries on the accused not explained. The findings are vague, unclear and indefensible. As noted above, for some conclusions the High Court acted without any evidence and frequently used the expression `Probably. A new case which was not even pleaded by the parties was introduced on its own by the High Court. Undue importance was attached to some superficial injuries of very minor nature on Ram Kirpal. It is trite that there are some minor or superficial injuries suffered by the accused that shall not affect a credible and cogent prosecution version even if the prosecution has not explained the injuries. The vaccilating nature of the conclusions is apparent because the High Court was not very sure as to whether Exception I or Exception II to Section 300 I.P.C. applied. They operate in entirely different fields. One relates to grave and sudden provocation and the other to exercise of right of private defence.19. The High Court was not justified, therefore, to alter the conviction to Section 304 Part I IPC. The trial Court had rightly convicted the accused in terms of Section 302 IPC.