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CASE NO.:

Appeal (crl.) 1636 of 1996

PETITIONER:

Laxman Singh

RESPONDENT:

Poonam Singh & Ors.

DATE OF JUDGMENT: 10/09/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT:

J U D G M E N T

[With Crl. Appeal No.1637 of 1996]

ARIJIT PASAYAT, J.

These appeals are by the informant and the State of Rajasthan

questioning the correctness and legality of judgment of the High Court

of Rajasthan at Jodhpur directing acquittal of the respondents-accused

persons.

The factual antecedents which the prosecution unfolded during

trial are as follows:-

There was long-standing litigation between Mohan Singh

(hereinafter referred to as 'the deceased') and his brother and other

relatives on one hand and the accused persons on the other. On

10.6.1984, the fateful day in the morning hours deceased-Mohan Singh and

his brother Bherusingh (PW-2) and other relatives were ploughing the

disputed land. Accused-respondents Poonam Singh, Harisingh, Devaram,

Gamna and 12 others acquitted by Trial Court told them not to do so.

They asserted that the field belonged to them and they will not allow

the complainant side to plough the field. For a long time assertions

and counter-assertions went on. Thereafter accused Poonamsingh hit on

the head of Mohansingh with a lavali (kind of stick) and accused-Devaram

hit on his shoulder by a Bewadi (form of stick) due to which, he having

become unconscious fell down. Thereafter accused persons started

assaulting and inflicting injuries. The incident was seen by Godawari

(PW-4), Arjunsingh (PW-16), Geeta (PW-13), Babusingh (PW-21), Bherusingh

(PW-2) and others. They were also injured being assaulted by the

accused persons. After this first information report was lodged by Bheru

Singh at about 8.30 p.m. and investigation was undertaken. Mohan Singh

was admitted in the Pali Hospital for treatment and subsequently he

breathed his last on 11.6.84 around 11.00 a.m.

In order to substantiate its version the prosecution examined 34

witnesses. The accused persons pleaded innocence and examined 4

witnesses. On consideration of evidence on record, the Trial Court came

to hold that the land was in possession of the complainant side, though

revenue records were in favour of the accused-appellants with their

companions. Having held so, it was observed that all the accused were to

be acquitted of the charges under Section 447 of the Indian Penal Code,

1860 (in short 'IPC'). It was held that though right of private defence

was available, it was exceeded. Even though the accused persons had

sustained injuries, yet the maximum they could have done was to exercise

the right of private defence by inflicting simple injuries. Ultimately,

it was held that present respondents were guilty of offences punishable

under Sections 304 Part-II and 323 IPC for causing death of Mohansingh

and inflicting injuries on Godawari (PW-4). The conviction and

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sentences were challenged by the four respondents-accused. The State did

not challenge the acquittal or the alteration of conviction. Similar

was the position vis-à-vis the informant.

The High Court by the impugned judgment held that the case was one

where the accused persons had exercised the right of private defence and

had not exceeded it. The fact that the accused persons received

injuries was considered to be of great significance. The acquittal in

respect of offences relatable to Section 447 was also considered to be

of vital importance in deciding the question about the right of private

defence. Accordingly it was held that the accused persons were entitled

to exercise the right available in respect of private defence. Both the

State and the informant have questioned the High Court's conclusions.

In support of the appeals, learned counsel for the State and the

informant submitted that the parameters of right of private defence as

provided in IPC have been completely lost sight of by the High Court. It

was, therefore, submitted that the High Court was not justified in

directing acquittal. In addition, learned counsel for the informant

submitted that though the Trial Court appears to have observed that the

right of private defence was available to the accused persons, yet it

was contrary to the findings recorded about the complainants having

possession of the disputed land. In view of these findings, the

observations made by the Trial Court, can be held to have been rendered

by assuming about the possession by the accused persons. Responding to

the aforesaid pleas, learned counsel for the accused-respondents has

submitted that the possession of the accused persons has been

established. It has been categorically recorded that the revenue records

stand in the name of accused persons. This conclusion is reinforced by

the acquittal in relation to offence punishable under Section 447 IPC.

The accused persons had sustained injuries and, therefore, the High

Court was justified in holding that the right of private defence had not

been exercised in excess of the permitted limits.

Only question which needs to be considered, is the alleged

exercise of right of private defence. Section 96, IPC provides that

nothing is an offence which is done in the exercise of the right of

private defence. The Section does not define the expression 'right of

private defence'. It merely indicates that nothing is an offence which

is done in the exercise of such right. Whether in a particular set of

circumstances, a person acted in the exercise of the right of private

defence is a question of fact to be determined on the facts and

circumstances of each case. No test in the abstract for determining

such a question can be laid down. In determining this question of fact,

the Court must consider all the surrounding circumstances. It is not

necessary for the accused to plead in so many words that he acted in

self-defence. If the circumstances show that the right of private

defence was legitimately exercised, it is open to the Court to consider

such a plea. In a given case the Court can consider it even if the

accused has not taken it, if the same is available to be considered from

the material on record. Under Section 105 of the Indian Evidence Act,

1872 (in short 'the Evidence Act'), the burden of proof is on the

accused, who sets of the plea of self-defence, and, in the absence of

proof, it is not possible for the Court to presume the truth of the plea

of self-defence. The Court shall presume the absence of such

circumstances. It is for the accused to place necessary material on

record either by himself adducing positive evidence or by eliciting

necessary facts from the witnesses examined for the prosecution. An

accused taking the plea of the right of private defence is not required

to call evidence; he can establish his plea by reference to

circumstances transpiring from the prosecution evidence itself. The

question in such a case would be a question of assessing the true effect

of the prosecution evidence, and not a question of the accused

discharging any burden. Where the right of private defence is pleaded,

the defence must be a reasonable and probable version satisfying the

Court that the harm caused by the accused was necessary for either

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warding off the attack or for forestalling the further reasonable

apprehension from the side of the accused. The burden of establishing

the plea of self-defence is on the accused and the burden stands

discharged by showing preponderance of probabilities in favour of that

plea on the basis of the material on record. (See Munshi Ram and Ors. v.

Delhi Administration (AIR 1968 SC 702), State of Gujarat v. Bai Fatima

(AIR 1975 SC 1478), State of U.P. v. Mohd. Musheer Khan (AIR 1977 SC

2226), and Mohinder Pal Jolly v. State of Punjab (AIR 1979 SC 577).

Sections 100 to 101 define the extent of the right of private defence of

body. If a person has a right of private defence of body under Section

97, that right extends under Section 100 to causing death if there is

reasonable apprehension that death or grievous hurt would be the

consequence of the assault. The oft quoted observation of this Court in

Salim Zia v. State of U.P. (AIR 1979 SC 391), runs as follows:

"It is true that the burden on an accused

person to establish the plea of self-defence is not

as onerous as the one which lies on the prosecution

and that, while the prosecution is required to prove

its case beyond reasonable doubt, the accused need

not establish the plea to the hilt and may discharge

his onus by establishing a mere preponderance of

probabilities either by laying basis for that plea in

the cross-examination of the prosecution witnesses or

by adducing defence evidence."

The accused need not prove the existence of the right of private defence

beyond reasonable doubt. It is enough for him to show as in a civil

case that the preponderance of probabilities is in favour of his plea.

The number of injuries is not always a safe criterion for

determining who the aggressor was. It cannot be stated as a universal

rule that whenever the injuries are on the body of the accused persons,

a presumption must necessarily be raised that the accused persons had

caused injuries in exercise of the right of private defence. The defence

has to further establish that the injuries so caused on the accused

probabilis the version of the right of private defence. Non-explanation

of the injuries sustained by the accused at about the time of occurrence

or in the course of altercation is a very important circumstance. But

mere non-explanation of the injuries by the prosecution may not affect

the prosecution case in all cases. This principle applies to cases

where the injuries sustained by the accused are minor and superficial or

where the evidence is so clear and cogent, so independent and

disinterested, so probable, consistent and credit-worthy, that it far

outweighs the effect of the omission on the part of the prosecution to

explain the injuries. [See Lakshmi Singh v. State of Bihar (AIR 1976 SC

2263)]. A plea of right of private defence cannot be based on surmises

and speculation. While considering whether the right of private defence

is available to an accused, it is not relevant whether he may have a

chance to inflict severe and mortal injury on the aggressor. In order to

find whether the right of private defence is available to an accused,

the entire incident must be examined with care and viewed in its proper

setting. Section 97 deals with the subject matter of right of private

defence. The plea of right comprises the body or property (i) of the

person exercising the right; or (ii) of any other person; and the right

may be exercised in the case of any offence against the body, and in the

case of offences of theft, robbery, mischief or criminal trespass, and

attempts at such offences in relation to property. Section 99 lays down

the limits of the right of private defence. Sections 96 and 98 give a

right of private defence against certain offences and acts. The right

given under Sections 96 to 98 and 100 to 106 is controlled by Section

99. To claim a right of private defence extending to voluntary causing

of death, the accused must show that there were circumstances giving

rise to reasonable grounds for apprehending that either death or

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grievous hurt would be caused to him. The burden is on the accused to

show that he had a right of private defence which extended to causing of

death. Sections 100 and 101, IPC define the limit and extent of right of

private defence.

Sections 102 and 105, IPC deal with commencement and continuance

of the right of private defence of body and property respectively. The

right commences, as soon as a reasonable apprehension of danger to the

body arises from an attempt, or threat, or commit the offence, although

the offence may not have been committed but not until that there is that

reasonable apprehension. The right lasts so long as the reasonable

apprehension of the danger to the body continues. In Jai Dev. v. State

of Punjab (AIR 1963 SC 612), it was observed that as soon as the cause

for reasonable apprehension disappears and the threat has either been

destroyed or has been put to route, there can be no occasion to exercise

the right of private defence.

In order to find whether right of private defence is available or

not, the injuries received by the accused, the imminence of threat to

his safety, the injuries caused by the accused and the circumstances

whether the accused had time to have recourse to public authorities are

all relevant factors to be considered. Similar view was expressed by

this Court in Biran Singh v. State of Bihar (AIR 1975 SC 87). (See:

Wassan Singh v. State of Punjab (1996) 1 SCC 458, Sekar alias Raja

Sekharan v. State represented by Inspector of Police, T.N. (2002 (8) SCC

354).

As noted in Butta Singh v. The State of Punjab (AIR 1991 SC 1316),

a person who is apprehending death or bodily injury cannot weigh in

golden scales in the spur of moment and in the heat of moment, the

number of injuries required to disarm the assailants who were armed with

weapons. In moments of excitement and disturbed mental equilibrium it is

often difficult to expect the parties to preserve composure and use only

so much force in retaliation commensurate with the danger apprehended to

him where assault is imminent by use of force, it would be lawful to

repel the force in self-defence and the right of private-defence

commences, as soon as the threat becomes so imminent. Such situations

have to be pragmatically viewed and not with high-powered spectacles or

microscopes to detect slight or even marginal overstepping. Due

weightage has to be given to, and hyper technical approach has to be

avoided in considering what happens on the spur of the moment on the

spot and keeping in view normal human reaction and conduct, where self-

preservation is the paramount consideration. But, if the fact situation

shows that in the guise of self-preservation, what really has been done

is to assault the original aggressor, even after the cause of reasonable

apprehension has disappeared, the plea of right of private-defence can

legitimately be negatived. The Court dealing with the plea has to weigh

the material to conclude whether the plea is acceptable. It is

essentially a finding of fact. Though acquittal in respect of offence

punishable under Section 447 IPC is not always determinative of the

question whether right of private defence has been exceeded, in a given

case the same assumes importance as in the present case. It has been

significantly noted by both the Courts below that the attacks were not

premeditated. On the contrary, for several hours, the parties were

discussing their respective stands (may be with some amount of verbal

aggression), and that aspect has indelible importance while assessing

the basic issue regarding exercise of the right of private defence.

In the background of legal and factual position indicated above,

the appeals are without any merit and deserve dismissal, which we

direct.