Pathubha Govindji Rathod & Another Vs State Of Gujarat, on 23rd January, 2015 Supreme Court Of India: Case Comment

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Bench : Dipak Misra, Prafulla C. Pant.

Criminal Appeal No. 2282 of 2014

Statement of Facts

The occurrence resulted out of quarrel taken place between two groups and consequently several persons were injured and two persons were died. The accused persons were, allegedly with swords and revolver (deadly weapons). A complaint in this respect was lodge by Complainant and a cross version of said occurrence was also registered by police. On investigation charge sheets were filed against both sides. This case was relating to one of those sides, where Court of Sessions framed the charges against all the accused persons for offence punishable under sections 147, 148, 302 r/w 149, 307 r/w 149, 326 r/w 149, 325 r/w 149, 324 r/w 149 and 506(2) r/w 149 of Indian Penal Code, 1860 and under Section 135 of the Bombay Police Act. Accused/Appellant no.1 was further charged in respect of offence punishable under Section 25(1)(a) and Section 27 of Arms Act.

Procedural History

During the Trial the Trial Court (Court of Sessions) examined the testimonies of set of 60 prosecution witnesses including the testimony of Complainant and also documentary evidences including medical reports, inquest reports, post mortem reports of two deceased persons, etc. Moreover, it was brought from defence side that, serious injuries was caused by one of the deceased person, to the accused/ appellant No. 1 by using knife. Further it was also brought from the side of defence that several accused persons were suffered injuries. The Trial Court decided both the session cases (including cross case) and in both these criminal cases the Court ordered conviction. In Sessions Case no. 53 of 2004 five accused persons were ordered conviction under Sections 323, 324, 325, 147, 148 and all r/w section 149 of Indian Penal Code and under Section 135 of the Bombay Police Act. Similarly, in Sessions Case No. 85 of 2005 wherein these present appellants were accused, the trial court convicted and sentenced each of the twenty accused under Sections 302, 307, 326, 325, and 324 all r/w Section 149 IPC. Criminal Appeal No. 1391 of 2007 and Criminal Appeal No.1394 of 2007 were filed by the convicts of Sessions Case No. 85 of 2003, and Criminal Appeal No. 1244 of 2007 was filed by the convicts of Sessions Case No. 53 of 2004, before the Hon’ble High Court of Gujarat. All the three appeals were decided by the Hon’ble High Court of Gujarat by common judgment by partly allowing those three appeals. So far as Criminal Appeal No.1391/2007 and1394/2007 are concerned, the judgement as to extent of punishment for accused/appellant No. 1 was modified and punishment for accused/appellant No.2 was confirmed. Insofar as Criminal Appeal No.1244/2007 is concerned, the judgment and order of conviction passed by the Court of Sessions in Sessions Case No.53/2004 was modified. Finally, the present Appeal which had been filed by two of accused persons by way of seeking leave to file appeal.


The issue raised before this Hon’ble Court was that whether the learned Court below have erred in law in accepting the plea of private defence taken by Appellant No. 1 when he was assaulted with a knife and as such even if it is proved that he had caused death of one of the deceased with fire arm (revolver), whether the said act can be covered under Exception 2 of Section 300 of Indian Penal Code, 1860.

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The Court considered that the case was the one of free fight between two groups of people having regard to the number of persons involved in the occurrence. It is settled principle of law that in all cases of free fights, accused persons are liable individually having regard to the specific role assigned to each of them. Similarly, right of private defence, normally, is not available in such cases unless and until the circumstances of the case warrant so. Further, the Court observed that, ‘A person faced with injury with a deadly weapon to his life cannot be expected to weigh in balance the precise force needed to avoid danger’[1]. The rule that, for taking a plea of right of private defence, it must be proved that there existed a right to private defence in favour of the person taking it[2]. Similarly, where two versions of incident adduced by the prosecution are discrepant with each other, and evidences led by prosecution contradicts each other and as such become unreliable as such Court would be left with no reliable evidence in such cases. In such situations it should be settled that each accused concerned should be fastened with individual liability and no right of private defence is available to either party and they will be guilty of their respective acts[3]. Thus, it is well settled rule that there is no right of private defence available to either of parties in the incidents of group fighting, however, this rule is also having an exception. Similarly, in the present case the appellant no.1 who was given deep knife blow has killed one of his rivals in the same incident by using licensed firearm.  The Court after having regard to the circumstances of the present case, held that the case was one of Culpable Homicide not amounting to murder as covered under Exception 2 of Section 300 of the Indian Penal Code, 1860. As such the appeal of accused/appellant No. 1 was partly allowed and conviction and sentence ordered against him, under Section 302 r/w section 149 of the Indian Penal Code, 1860 was set aside. However, this accused was convicted under Section 304 part-I of the Indian Penal Code, 1860. And so far as the conviction and sentence recorded against accused/appellant no. 2 under Section 304 Part-I r/w Section 149 IPC was not interfered with and as such appeal was disposed of.


The present case was the example of one of those cases where two groups fights and the cases come out of such quarrel were treated as cross cases. Here, one of the deceased was killed by one of the accused persons while defending himself against injuries caused by such deceased person. And as such this accused had raised the plea of private defense available under Exception to Section 300 of the Indian Penal Code, 1860. Under such situation, the Court should examine the matter in detail and as observed in case of Mohinder Pal Jolly Vs. State of Punjab (AIR 1979 SC 577) that “if a person has a right of private defence of body under Section 97 of the Indian Penal Code, 1860, that right extends under Section 100 thereof to causing death if there is reasonable apprehension that consequence of the assault”. They had examined this aspect and also the fact that though the right to private defence is not available to the accused in cases of such kind where two groups are fighting and one person from one of such group is killed. Considering this situation this Court has rightly observed that, though it is a rule that in such situation no such right is available, however, there is also a settled fact that, ‘ if there is a rule, there is an exception too’ and as such the Court had, after analyzing the facts and circumstances of the case, righty, set aside conviction by making available the right of private defence. It is this trend of the Hon’ble Supreme Court of India, which has always served as supplement to the existing laws because though we are having laws, rules and regulations over all controversies which would arise, but it is also very fact of nature that all aspects of the matters can never be provided with one time written statute. It is the Court which can provide for such controversies while dealing with such cases.

 by Faim Khalilkhan Pathan

  1. See paragraph 14 of the Judgment.
  2.  See State of Rajasthan vs. Manoj Kumar, (2014) 5 SCC 744, where Hon’ble Supreme Court has observed under Paragraph 15.3 that, “in Bhanwar Singh v. State of M.P., it has been ruled to the effect that for a plea of right of private defence to succeed in totality, it must be proved that there existed a right to private defence in favour of the accused, and that this right extended to causing death; and if the court were to reject the said plea, there are two possible ways in which this may be done i.e. on one hand, it may be held that there existed a right to private defence of the body, however, more harm than necessary was caused or, alternatively, this right did not extend to causing death and in such a situation it would result in the application of Section 300 Exception 2 IPC.”
  3. See Mohd. Khalil Chisti vs. State of Rajasthan (2013) 2 SCC 541, and paragraph 42 of whereunder stated that, “The analysis of the materials clearly shows that two versions of the incident adduced by the prosecution are discrepant with each other. In such a situation where the prosecution leads two sets of evidence each one which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Though the accused would have the benefit of such situation and the counsel appearing for the appellants prayed for acquittal of the appellants of all the charges, in view of the principles which we have already discussed, we are of the view that each accused can be fastened with individual liability taking into consideration the specific role or part attributed to each of the accused. In other words, both sides can be convicted for their individual acts and normally no right of private defence is available to either party and they will be guilty of their respective acts”.
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See Original Judgment Pathubha Govindji Rathod & Another Vs State Of Gujarat