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PETITIONER: BHAGWAN SWAROOP

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT31/01/1992

BENCH: KULDIP SINGH (J) BENCH: KULDIP SINGH (J) SAHAI, R.M. (J)

CITATION:  1992 AIR  675            1992 SCR  (1) 466  1992 SCC  (2) 406        JT 1992 (3)    16  1992 SCALE  (1)202

ACT:      Penal   Code,1860-Sections  96,100-Right   of   private defence-Lathi  blows  inflicted  on  father  by  complainant party-Apprehension  of danger to his life-Firing a gun  shot at that time by son-Whether right of private defence can  be claimed.      Arms  Act, 1959-Section 25A-Conviction  under-Using  of father’s licensed gun by son to save life of  father-Whether acquittal proper.

HEADNOTE:      The  deceased  along with his father  and  brother  was living in the house owned by the accused appellant’s father.      There   was  dispute  between  the  accused   and   the complainant party regarding a piece of land which  according to   the  accused,  the  complainant  party   was   forcibly occupying.      On  May 11, 1969 at about 2.45 p.m. appellant’s  father had  an altercation with deceased’s brother.  Thereafter  he went  to deceased’s house and abused the  complainant  party and started dismantling the tin-shed on the disputed land.      The prosecution’s case was that the deceased’s  brother was  sent to police station to lodge a report. The  deceased came  at the spot and gave a push to appellant’s father.  He fell  down. Getting up, immediately, shouted  for  appellant and  asked him to bring the rifle and kill  the  complainant party. The appellant brought a gun and fired a shot  hitting the deceased. The appellant fired the second shot which  hit another.   The  deceased  fell  down  and   thereafter   the deceased’s  father  took  out a lathi and  gave  beating  to appellant’s  father. The deceased succumbed to  the  gunshot injury.      Appellant  was charged under Section 302, 307, 451  IPC and  also  under  section 25-A of Arms Act.  The  father  of appellant was charged under sections 109/302, 451 IPC and 29 of the Arms Act.      The  appellant and its father denied the commission  of the                                                        467 crime.  Appellant’s plea of alibi was rejected by the  trial court.   It  also did not believe the  prosecution  case  in

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toto.      The appellant’s father was acquitted of all the charges by  the  trial  court.  It  convicted  the  appellant  under section  302  IPC and he was sentenced to  imprisonment  for life, but he was acquitted of the other charges.      The  High Court allowed the State’s  appeal  convicting the  appellant under section 307 IPC and section  25-A  Arms Act  also.   He  was sentenced to five years  and  one  year rigorous imprisonment respectively for the offences.      The  appellant filed this appeal before this  Court  by way of special leave.      On the question, whether on the facts of the case,  the appellant-accused  can  claim  right  of  private   defence, allowing the appeal, this Court,      HELD:1.  It  is  established on  the  record  that  the appellant’s  father  was  being given  lathi  blows  by  the complainant party and it was at that time that gun-shot  was fired  by  the  appellant to save his  father  from  further blows.  A lathi is capable of causing a simple as well as  a fatal injury.  Whether in fact the injuries actually  caused were  simple  or grievous is of no consequence.  It  is  the scenario of a father being given lathi blows which has to be kept  in mind.  In such a situation a son  could  reasonably apprehend danger to the life of his father and his firing  a gun-shot  at that point of time in defence of his father  is justified.   The appellant fired the gun-shot to defend  the person of his father. [470 E-G]      2.  Using  the  licensed gun of his  father  under  the circumstances of the case cannot be considered possessing an arm  without  a licence.  The High Court  grossly  erred  in setting  aside the acquittal of the appellant under  section 25-A of the Arms Act. [471 A-B]

JUDGMENT:      CRIMINAL   APPELLATE  JURISDICTION:   Criminal   Appeal Nos.273-74 of 1980.      From  the  Judgment and Order dated  19.1.1980  of  the Madhya Pradesh High Court in Crl. A. Nos. 107 of 1970 and  1 of 1971.                                                        468      R.L. Kohli and K.C. Kohli for the Appellants.      Uma Nath Singh for the Respondent.      The Judgment of the Court was delivered by      KULDIP  SINGH,  J. Bhagwan Swaroop  was  charged  under Section  302  IPC  for the murder of  Man  Singh  and  under Section  307  IPC for an attempt to murder Shahid.   He  was further  charged  under  section  451  IPC  for   committing trespass   and  also  under  section  25-A  of   Arms   Act. Ramswaroop,  father  of Bhagwan Swaroop, was  charged  under sections   109/302,  451  IPC  and  29  of  the  Arms   Act. Ramswaroop  was  acquitted of all the charges by  the  trial court.   Bhagwan  Swaroop  was,  however,  convicted   under section 302 IPC and was sentenced to imprisonment for  life. He was acquitted of the other two charges.  The appeal filed by  Bhagwan  Swaroop was dismissed by the High  Court.   The High  Court allowed the State appeal and  further  convicted Bhagwan Swaroop under section 307 IPC and section 25-A  Arms Act.   He was sentenced to five years and one year  rigorous imprisonment  respectively  for  the  said  offences.   This appeal  before  us  by way of special leave  is  by  Bhagwan Swaroop  against  his conviction and sentence on  the  three counts.      Deceased  Man  Singh was the son of Shahjor  Singh  and

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brother  of Babusingh.  They were living in the house  owned by  Ramswaroop and his sons.  There was dispute between  the parties  regarding  a piece of land which according  to  the accused,  the complainant party was forcibly  occupying.   A notice had been served upon Shahjor Singh by the accused, to vacate the said encroachment.  According to the  prosecution on  May 11, 1969 at about 2.45 p.m. accused Ramswaroop   had an  altercation with Babusingh, at a place called Gauri  and thereafter  he  rushed  the complainant  party  and  started dismantling  the  tin-shed in the  disputed  land.   Shahjor Singh sent his son Babusingh to the police station to  lodge a report.  Meanwhile Man Singh deceased came at the spot and gave a push to Ramswaroop who as a result fell down.  He got up  immediately and shouted for his son Bhagwan Swaroop  and asked him to bring the rifle and kill the complainant party. Bhagwan Swaroop rushed to his house, brought a gun and fired a shot hitting Man Singh.  Bhagwan Swaroop fired the  second shot  which hit Shahid.  Man Singh fell down and  thereafter complainant  Shahjor  Singh  took  out  a  lathi  and   gave breathing  to Ramswaroop.  Man Singh succumbed to  the  gun- shot injury.      Both  the accused denied the commission of  the  crime. Accused Ramswaroop stated in his examination as under:-                                                        469          "I found Babusingh gambling in my garden.  I  asked          him  as  to why he is doing so in  the  garden,  he          started  abusing  me.  I slapped him.   His  father          came there both of them abused me and then left the          place.   I told him that I will make the report  of          the incident to the police station.  When I reached          near  the house of Shahjor Singh on my way  to  the          Police Station he along with his sons caught me and          started  beating  me with lathies.   Shahjor  Singh          brought an axe, when he was about to use his axe on          me there was gun fire."      Accused  Bhagwan Swaroop took the plea of  alibi  which has  been rejected by both the courts below.  We are of  the view that the said plea was rightly rejected.      The trial court did not believe the prosecution version in toto.  The trial court found that the "prosecution  tried to  indulge in exaggeration, misrepresentation and at  times suppression of facts without any meaning".  The trial  court further concluded as under:-          "The  defence version that Babusingh  was  gambling          alongwith  others  in  the garden  of  the  accused          Ramswaroop appears correct.  Ramswaroop went  there          and  questioned Babusingh.  There  was  altercation          and  use  of hot words.   Admittedly   Shahjorsingh          P.W.   I came there and Babusingh  accompanied  him          back  to his house.  Ramswaroop further  stated  in          his examination that he gave one slap to Babusingh.          Babusingh  as P.W.9 stated that he was given  three          or  four slaps by Ramswaroop.  Thus the  fact  that          Babusingh  was  slapped, stand established  in  the          case".      The  part  of the prosecution story, that  the  accused Ramswaroop  rushed  towards the house of Shahjor  Singh  and reached there before the arrival of Shahjor Singh, was  also dis-believed by the trial court.      Regarding  the  actual occurrence, it is  not  disputed that  Ramswaroop  was  given four  simple  injuries  by  the complainant.  The prosecution case is that the injuries were given after the gun-shot had been fired whereas the  defence version is that the gun-shot was fired while lathi  injuries were being given to Ramswaroop.  Trial court considered  the

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statements  of  Banne Khan, P.W.6, Shahid  P.W.8,  Sarfuddin P.W.11, Safaat Ahmad D.W.1 and Hamid Ahmed D.W.3 and came to the following conclusion:-          "Any-way  this one fact is clear from the  evidence          of  these eye-witnesses that Ramswaroop was put  to          beating, then there was gun fire and Bhagwanswaroop          was seen on the spot"                                                        470      The  trial  court  on  appreciation  of  the   evidence produced by the prosecution and the complainants came to the conclusion  that the following facts stood established  from the evidence:-          "Ramswaroop,  came near the house of  Shahjorsingh.          There  was exchange of abuses between  Shahjorsingh          and Ramswaroop.  Ramswaroop tried to remove the tin          shed of Gonda.  He was pushed aside by Mansingh and          then put to beating by lathies."      It was under these circumstances that Ramswaroop  asked his  son  to  fire  the  gun-shot.   The  question  for  our consideration  is  whether  on the facts of  this  case  the appellant  can claim right of private-defence.  The  learned trial court came to the conclusion that since minor injuries were caused by the lathi there was no basis for entertaining a reasonable apprehension that Ramswaroop would be killed or hurt  grievously  and as such the plea of  self-defence  was rejected.   The High Court upheld the finding of  the  trial court in the following words:-          "No doubt the respondent Ramswaroop had injuries on          his person.  There were two simple injuries  caused          by hard and blunt object and the other two could be          caused   by  fall  for  which  there  is   definite          prosecution evidence that the respondent Ramswaroop          was pushed and he fell down.  These injuries on him          could  not give rise to any apprehension of  either          grievous hurt or death."      We  do  not  agree  with  the  courts  below.   It   is established  on the record that Ramswaroop was  being  given lathi blows by the complainant party and it was at that time that  gun-shot  was  fired by Bhagwan Swaroop  to  save  his father from further blows.  A lathi is capable of causing  a simple  as  well  as a fatal injury.  Whether  in  fact  the injuries  actually caused were simple or grievous is  of  no consequence.   It  is the scenario of a father  being  given lathi  blows which has to be kept in mind and we are of  the view  that  in  such  a situation  a  son  could  reasonably apprehend danger to the life of his father and his firing  a gun-shot  at that point of time in defence of his father  is justified.   We,  therefore, set aside the  finding  of  the courts  below  on this point and hold that  Bhagwan  Swaroop fired the gun-shot to defend the person of his father.      The  trial  court on the basis of the evidence  on  the record,  including that of Dr. Mukherjee P.W.5, came to  the conclusion that only one shot was fired by Bhagwan  Swaroop. According to the trial court Shahid was accidentally hit  by the  pellets  spread  by  the gun-shot.   It  was  on  these findings  that trial court acquitted Bhagwan Swaroop of  the charge                                                        471 under 307 IPC.  We agree with the trial court and hold  that the High Court was not justified in reversing the same.  The High  Court  further  grossly erred  in  setting  aside  the acquittal of Bhagwan Swaroop under section 25-A of the  Arms Act.   Using  the  licensed  gun of  his  father  under  the circumstances  of this case cannot be considered  possessing an  arm without a licence.  We agree with the reasoning  and

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findings of the trial court and hold that High Court was not justified in setting aside the acquittal of Bhagwan  Swaroop under Arms Act.      For  the reasons given above we allow the  appeal,  set aside  the  conviction of appellant  Bhagwan  Swaroop  under section  302 IPC, 307 IPC and 25 Arms Act and acquit him  on all  these counts.  He is already in bail.  His  bail  bonds are discharged. V.P.R.                                      Appeal allowed.                                                        472