This article has been written by Nikhat Chaudhary pursuing Law from Rizvi Law College
Criminal Appeal no. 192 of 1972.
1974 AIR 1570, 1975 SCR (1) 409
Section 302 IPC
Section 96 to 102 IPC
Section 109 IPC
Article 136 of the Indian Constitution
Brief Facts and Procedural History
Ganga Ram and deceased Sahib Dutta Mal alias Munimji were trade rivals. At about 7 a.m. Ganga Ram went to purchase a basket of melons from the deceased. The deceased declined to sell it. Hot words followed and Ganga Ram left in a huff. An hour later Ganga Ram went to the market with his son Ram Swaroop and two other sons. Ganga Ram had a knife Ram Swaroop a gun and the others carried lathis. They advanced aggressively towards the deceased who attempted to retreat. Ram Swaroop shot him dead at point-blank range. The Learned Sessions Judge convicted Ram Swaroop under section 302 and sentenced him to death. Ganga Ram was convicted under section 302 read with section 34 and was sentenced to imprisonment for life. The other two sons were acquitted of all the charges. On appeal, the High Court of Allahabad acquitted Ram Swaroop and Ganga Ram and confirmed the acquittal of the other son’s. The High Court assumed without evidence that Ganga Ram used to carry a gun to his vegetable farm The finding recorded by the High Court that the respondents went to the market for casual purchase and that they happened to have a gun because it was their wont to carry a gun is the very foundation of its acceptance of the theory of private defense set up by the respondents. According to the High Court, a routine visit to the market led to an unexpected quarrel between the deceased and Ganga Ram, the quarrel assumed the form of grappling, the grappling provoked the servants of the deceased to beat Ganga Ram with lathis, and the beating impelled Ram Swarup to use the gun in defense of his father.
Issues Before the Court
- Whether the State Government has a locus standi to file for an appeal in the SC against the order of acquittal passed by the HC as no such right is conferred by the Code of Criminal Procedure or by the Constitution and thus, there can be no right of appeal unless one is given by statute.
- Whether the acquittal of Ram Swaroop and Ganga Ram by the Hon’ble High Court is Lawful?
Ratio of the Case
It was held that Under Article 136(1) of the Constitution this Court has wide discretion, though sparingly exercised, to grant special leave to appeal from any judgment, decree, determination, sentence, or order. This remedy can be availed of by any party which is affected adversely by the decision under challenge. If the State Government is a contesting party to a matter disposed of by the High Court and if it is aggrieved by the judgment or order of the High Court, it is entitled under Article 136(1) to ask for special leave of this Court to appeal from the decision of the High Court. It is, of course, not entitled to obtain leave but that is a separate matter because under Article 136(1) no party is entitled to obtain leave as a matter of right. “The Supreme Court may, in its discretion, grant special leave to appeal” and one of the relevant considerations in granting leave is whether the party seeking leave is aggrieved by the impugned decision, in which case it would, at any rate, have the locus to ask for leave. The locus standi of State Governments to file appeals in this Court against judgments or orders rendered in criminal matters, particularly those commenced otherwise than on private complaints, has been recognized over the years and for a valid reason. All crimes raise problems of law and order and some raise issues of public disorder. The effect of crime on the ordered growth of society is deleterious and the State Governments are entrusted with the enforcement and execution of laws directed against the prevention and punishment of crimes. They have, therefore, a vital stake in criminal matters which explains why all public prosecutions are initiated in the name of the Government. The objection that the State Government has no locus standi to file this appeal must be rejected.
Further, the conclusion of the High Court in regard to Ram Swarup being unsupportable and leading as it does to a manifest failure of justice, we set aside the order acquitting Ram Swarup and restore that of the Sessions Court convicting him under section 302 of the Penal. Code as the right of private defense is a right of defense, not retribution. It is available in face of imminent peril to those who act in good faith and is in no case can the right be conceded to a person who stage-manages a situation wherein the right can be used as a shield to justify an act of aggression. If a person goes with a gun to kill another, the intended victim is entitled to act in self-defense, and if so acts there is no right in the former to kill him to prevent him from acting in self-defense. While providing for the right of private defense, the Penal Code has surely not devised a mechanism whereby an attack may be provoked as a presence for killing. The possibility of a scuffle, of course not enough to justify the killing of Munimji but bearing relevance on the sentence cannot, however, be excluded and we would therefore reduce the sentence of death imposed on Ram Swarup by the Sessions Court to that of life imprisonment. We also confirm the order of conviction and sentence under section 25 (1) (a) and section 27 of the Arms Act and direct that all the sentences shall run concurrently.
The High Court was justified in acquitting Ganga Ram of the charge under section 307, Penal Code, regarding the knife-attack on Nanak Chand. Nanak Chand received no injury at all and the story that the knife-blow missed Nanak Chand but caused a cut on his kurta and Bandi seems incredible. The High Court examined these clothes but found no cut marks thereon. Tears there were on the Kurta and Bandi but it is their customary privilege to be torn. With that, the conviction and sentence under the Arms Act for possession of the knife had to fall.
There is no substance in the charge against Ganga Ram under section 29 (b) of the Arms Act because he cannot be said to have delivered his licensed gun to Ram Swarup. The better view is that Ram Swarup took it.
Decision of the Court
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