Citations: Shahjajhan and Ors. Vs State of Kerala and Anr., 2007 (Appeal no. 262 of 2007)
Date of Judgement: 26/02/2007
Case No.: Appeal (Crl.) 262 of 2007
Case Type: Criminal Appeal
Petitioner/Appellant: Shahjajhan and Ors.
Defendant/Respondent: State of Kerala and Anr.
Bench: Hon’ble Justice Dr. Arijit Pasayat & Hon’ble Justice R.VS Raveendran
Court: Supreme Court of India
Statutes Referred:
- Indian Penal Code, 1860; Sections 34, 96, 97, 98, 99, 100,102,105 302, 323, 324;
- Indian Evidence Act, 1872; Section 100 & 105.
Cases referred:
- Lakshmi Singh and Ors. Vs State of Bihar, 1976 4 SCC 394;
- Vijayee Singh and Ors. Vs State of U.P., AIR 1990 SC 1459;
- Ramlagan Singh Vs State of Bihar, AIR 1972 SC 2593;
- Hare Krishna Singh and Ors. Vs State of Bihar, AIR 1988 SC 863;
- Surendra Paswan Vs State of Jharkhand, (2003) 8 Supreme 476;
- Anil Kumar Vs State of U.P., JT 2004 8 SC 355,
- Munshi Ram and Ors. Vs Delhi Administration, AIR 1968 SC 702,
- State of Gujarat Vs Bai Fatima, AIR 1975 SC 1478,
- State of U.P. Vs Mohd. Musheer Khan, AIR 1977 SC 2226;
- Salim Zia Vs State of U.P., AIR 1979 SC 391;
- Buta Singh Vs The State of Punjab, AIR 1991 SC 1316.
Facts:
- On 18/09/1994, the accused persons namely Shahjajahn (A1), Nujum (A2), Manzoor (A3), Musthafa (A4) attacked Abdul Samad at Kulasekharapuram in Adinadu Village.
- The accused persons shared a long-time enmity with Ashraf and his younger brother (referred herein as the deceased) and in furtherance of the common intention of all, attacked the deceased with dangerous weapons.
- A1 pulled the deceased by his legs, A2 stabbed him with the knife while A4 chopped him with a chopper. When Ashraf (brother of the deceased) intervened to rescue him, A4 injured him with a chopper too, and A3 assaulted him through hands.
- As a consequence of violent attacks by the accused persons, Abdul died while his brother sustained injuries and was admitted to the hospital.
- Consequently, charges against all the above-stated accused persons were made after the consideration of evidence of the prosecution witnesses. A2 was held guilty under Section 302 and 324 of Indian Penal Code while A1, A3, and A4 were found guilty of offences punishable under Section 323 to read with Section 34 of Indian Penal Code.
- Aggrieved by the conviction, the accused persons pleaded before the High Court. The High Court upheld the conviction so far A1, A3 & A4 were concerned. However, the conviction of A2 in respect of Section 302 was revised and he was now convicted Section 304 of Indian Penal Code with no alteration of charges in respect of Section 324 of Indian Penal Code.
- Appellants (A1, A3 & A4) challenged the legality of the judgement passed by the learned Bench of High Court of Kerala before the Hon’ble Apex Court in this instant appeal.
Issues Involved:
- Whether the judgement passed by the Kerala High Court maintaining the conviction of other accused persons (A1, A3 &A4) Section 323 to read with Section 34 of Indian Penal Code valid?
- Whether the accused persons acted in the right of private defence provided under Section 96 of Indian Penal Code?
- Whether the failure of the prosecution to offer any explanation regarding the injuries sustained by the accused persons have any effect in the instant matter?
Contention of Petitioner/Appellant:
The counsel for the appellant submitted that:
- There was no explanation of injuries given by the prosecution. Also, the investigating officer failed to mention that aspect.
- The accused persons acted in self defence & the High Court also accepted this aspect. Furthermore, when the done act is in the exercise of the right to private defence, the conviction maintained stands inappropriate in the case.
- The Kerala High Court has wrongly assessed that the accused persons have over-exercised their right to private defence. This assessment of the learned bench is in contravention to the factual matrix of this case.
Contention of Defendant/ Respondent:
- The counsel for the Respondent submitted that the impugned order passed by the Kerala High Court is appropriate. The charges laid on all the accused persons were established right as per the facts of this case.
Judgement:
The Petition was Dismissed.
The Hon’ble Supreme Court dismissed the petition observing that the impugned order of the Kerala High Court is appropriate.
Ratio Decidendi:
- The Hon’ble Court in this instant matter referred to various cases to come to the conclusion.
- The Court referred to the case of Vijayee Singh and Ors. Vs State of U.P., where it was held that the non-explanation of injuries by the prosecution will not affect the case when the evidence itself is clear, cogent, and creditworthy. In the cases where the injuries sustained are minor and not so crucial to the matter, the omission can be ignored.
- Also, as observed in Ramlagan Singh Vs The State of Bihar the prosecution doesn’t need to be called upon in every other case for the explanation of the injuries sustained. When the defence puts any question regarding the same, only then the Prosecution is obligated to provide any explanation.
- Thus, when the prosecution beyond any reasonable doubt proves that the offence in question is committed by the accused, there remains no requirement to explain as to how & in what manner the injuries were inflicted upon.
- The next question, in this case, was about the exercise of the right to private defence by the accused persons against the deceased and his brother.
- Whether the accused persons acted reasonably in self defence depends upon the question of facts and circumstances of the case. Also, the burden of proof to establish the plea of self defence is on the accused to either provide evidence or set up some material record in support of the plea.
- The Court also observed that for establishing the plea for self defence under Section 100 of Indian Penal Code the accused persons must be in a position to prove that a reasonable apprehension as to death or grievous hurt existed. It is also vital to note that such an exercise of the right ends the moment the reasonable apprehension or the threat disappears.
- The right to private defence is a defensive right that cannot be allowed or pleaded for satisfying vindictive or aggressive offences committed by the accused persons. Where any act is done in the pretence of killing or meeting out the ulterior motive, the accused persons can by no means plead the right to self defence.
- Thus, the question challenging the maintainability is ruled out.
Conclusion:
To conclude, we can say that the Hon’ble Supreme Court upheld the decision of the Kerala High Court and subsequently observed the legality of the impugned order as valid. The failure of non-explanation of the accused’s injuries on the part of the prosecution when the evidence is so clear, independent, and probable from the facts does not affect the case. Also, the plea of self-defense provided under the Indian Penal Code (1860) should be taken as a right for self-preservation and not as a retaliatory measure.
Drafted By: Shivani Tiwary, School of Law DAVV.
Edited by: Aashima Kakkar, Associate Editor, Law Insider
Published On: October 29, 2021 at 17:00 IST