'Attack' Cannot Be Said To Be Made At 'Spur Of The Moment Without Premeditation' When There Are Multiple Wounds: SC [Read Judgment]

"Since there are multiple wounds, it cannot be said that the appellants have acted at the spur of the moment without pre-meditation and that the appellants are not taken any advantage or acted in a cruel or unusual manner. "

It cannot be said that the attack was made at the spur of the moment without pre-meditation when there are multiple wounds, observed the Supreme Court while deciding a criminal appeal.

The appeal in the case Nagji Odhavji Kumbhar & Anr v. State of Gujarat arose against the order of the High Court of Gujarat upholding the conviction of the appellants for the offences under sections 302 and 324 of IPC.

Nagji Odhavji Kumbhar and others were accused of attacking and injuring Bhura Govind and Lakha Arjan with spears etc who had both succumbed to death on the spot. The motive of the attack is said to be the soured relationship between the accused and the deceased on account of dispute over right of pathway which culminated in the death of the deceased persons, who had secured a favourable injunction order in a civil suit. The accused were found guilty and convicted by the Trial Court for offence under section 302 and 324 IPC.

Before the Apex Court, they asserted that the deceased and their accomplices, who were 9 in number, were the aggressors and injuries were inflicted on the them in their attempt to protect the seisen of their land and thus they have only acted within the contours of their right to private defence. Another contention was that their conviction under section 302 r/w 34 of IPC is not sustainable because the occurrence had taken place at the spur of the moment without any pre-meditation and they have not taken any advantage or acted in a cruel or unusual manner and at best, an offence under section 304(Part II) can be said to have made out.

The Bench comprising of Justice Sanjay Kishan Kaul and Justice Hemant Gupta observed that the plea of right to private defence fails when there is no evidence to show that the deceased were armed with weapons. It said:

"The right of private defence is not available when the alleged assailants are unarmed. The right of private defence is to protect the person and property. In such right, the person cannot cause more harm than what is necessary for the protection of the person and the property. What harm can be expected from the hands of the deceased when they are unarmed, whereas from the testimony of PW-3 and PW-4, the injured witnesses, the appellants were armed with spears and other weapons."

Referring to the Post-Mortem reports and other evidence on record, the bench noted that the deceased had multiple wounds in the chest and it was not a case of single injury which one can infer on account of sudden fight. Affirming the concurrent conviction, the Court said:

"The deceased had multiple stab wounds on the chest. Since there are multiple wounds, it cannot be said that the appellants have acted at the spur of the moment without pre-meditation and that the appellants are not taken any advantage or acted in a cruel or unusual manner. It is not a case of single injury which one can infer on account of sudden fight. We, therefore, do not find any merit in the alternate argument that the appellants are entitled to be convicted under Section 304 IPC as they have given multiple injuries on the vital parts of the deceased."

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