Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1695 OF 2005

MANJEET SINGH … APPELLANT

VERSUS

STATE OF HIMACHAL PRADESH … RESPONDENT

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

The appellant has assailed the judgment dated 18

th

October, 2004

passed by the High Court of Himachal Pradesh, Shimla in Criminal Appeal

No.259 of 2002. By the impugned judgment the High Court dismissed the

appeal and affirmed the judgment passed by the Trial Court dated 27th

March, 2002 in Sessions Trial No.17-S/7 of 2001 wherein the Trial Court

convicted the appellant and sentenced him to imprisonment for life and

also to pay fine of Rs.5,000/- for the offence under Section 302 IPC and in

default, further imprisonment for one year. The appellant was also

sentenced by the Trial Court for the offence under Section 324 IPC to

undergo imprisonment for six months and to pay fine of Rs.500/-, in

default, further simple imprisonment for one month. The appellant was

also sentenced for the offence under Section 27 of Arms Act to undergo

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Page 2 imprisonment for three months and to pay fine of Rs.1000/-, in default,

further simple imprisonment for one month. The Trial Court ordered that

all the aforesaid sentences shall run concurrently.

2. The facts of the prosecution case as stated by Jai Pal (PW.5) are

that he was carrying business of taxi in Shimla. On 31

st

December, 2000 at

about 9 p.m. he had gone to Hotel Apsara at Cart Road, Shimla to inquire

from Budhi Singh (PW.8), Manager of the Hotel Apsara regarding the

booking of his taxi by some passenger staying in the Hotel. Budhi Singh

(PW.8) asked Jai Pal (PW.5) to come after some time. Both of them then

went together to Hotel Basant for celebrating New Year. They took wine

and dinner together and remained in the said Hotel till 12 o’clock.

Thereafter, Budhi Singh(PW.8) returned to Hotel Apsara while Jai Pal (PW.5)

came towards Cart Road where he met Romi Kapoor (PW.6), Pawan Kumar

(PW.7), Deep Chand and Rajnish alias Rintu who inquired about the

booking of a room in the Hotel as earlier agreed upon. Jai Pal (PW.5) went

to the Hotel Apsara where he did not find Budhi Singh (PW.8), Therefore,

he went upstairs in the Hall of the Hotel where he found accused Manjeet

Singh along with Balraj and Surender Kumar were taking liquor. Jai Pal

(PW.5) inquired from the appellant-accused, Manjeet Singh about the

Manager of the Hotel to which the accused was alleged to have retorted

that he was not the Chowkidar of the Hotel so as to know and tell about the

Manager. Accused-Manjeet Singh was further alleged to have started

abusing Jai Pal (PW.5) by proclaiming that he was serving in Punjab Police.

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Page 3 The accused was further alleged to have started beating Jai Pal (PW.5) by

giving him a fist blow on his mouth. Jai Pal (PW.5) ran outside. He met the

above-named Romi Kapoor (PW.6), Deep Chand, Pawan Kumar (PW.7) and

Rajnish. He narrated the incident to them. Romi Kapoor (PW.6), Rajnish

alias Rintu and Pawan Kumar (PW.7) went inside the Hall while Jai Pal

(PW.5) and one Roshan remained standing at the entrance of the Hotel.

Rajnish alias Rintu inquired from the accused-Manjeet Singh as to the

cause of his having given beatings to Jai Pal (PW.5). The accused was

alleged to have told his companions, Balraj and Surender Kumar to tell

Rajnish and his friends about the cause of the beatings to Jai Pal (PW.5).

Balraj and Surender Kumar were then alleged to have abetted and

instigated the accused by saying “Carbine Ka Kamal Dekhao”. Whereupon

accused was alleged to have fired shots from his Carbine which hit Rajnish

alias Rintu, Romi Kapoor (PW.6), Jai Pal (PW.5) and Pawan Kumar (PW.7).

Rajnish alias Rintu sustained two shots on his chest and he fell down on the

ground. The accused and Balraj were alleged to have run away after the

gun shots. Jai Pal (PW.5) lifted Rajnish alias Rintu and carried him to

I.G.M.C. Hospital, Shimla, where he was declared dead.

3. On the telephonic message of one Pradeep Kumar, Jagdish Ram

(PW.25), Station House Officer, Police Station Sadar reached the spot.

Surender Kumar, a companion of the accused, was apprehended from the

toilet of the Hotel. Since, the injured persons had already been taken to the

Hospital, Jagdish Ram (PW.25) went to the Hospital and recorded the

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Page 4 statement of Jai Pal (PW.5), on the basis of which a case for the offences

under Section 302, 307 and 323 read with Section 34 IPC came to be

formally registered vide F.I.R. No.1/2001.

4. Post-mortem examination was conducted by Dr. V.K. Mishra

(PW.24) who found the following two ante-mortem bullet injuries on the

person of the deceased Rajnish alias Rintu:

“(i)A circular wound of entry one centimeter in diameter,

1.5 cm medial to right nipple, 18 cm below right

shoulder joint. Dry clotted blood was present around

the wound. There was no blackening, tattooing,

singeing, burning etc;

(ii)A circular wound of entry 1 cm x ½ cm between the

base of 1

st

and 2

nd

metatarsal bone of left foot,

dorsum with dry clotted blood present around the

wound. No blackening, tattooing, singeing, burning

etc. noticed over the skin.”

In the opinion of Dr. V.K. Mishra (PW.24), the death was due to

haemorrhagic shock as a result of laceration of lung due to gun shot injury.

5. On Medical Examination of Romi Kappor (PW.6), Dr. M.P.

Singh(PW.1) found the following injuries on the person of Romi Kapoor:

“Local Examination

1.A CLW 1 cm X 0.5 cm X 1 cm in size placed horizontally

on little side of left upper arm on lower part of deltoid

muscle, red in colour with dark edges due to soot with

irregular margins which were depressed.

2.A. CLW 1 cm 0.5 cm 1 cm in size placed horizontally

approximately 2.5 cm lateral to first would on lateral

inside of left upper arm on lower part of deltoid muscle

with irregular margins elevated and margins

deliberated red in colour. Same marks were present

over sweater and shirt worn.”

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Page 5 As per the opinion of the doctor, injuries Nos.1 & 2 were bullet

injuries and the same were dangerous to the life as per rule of gun shot

injuries. The Doctor has also issued MLC Ext. PW-2/B in respect of the said

injuries.

6. On the same day, Dr. M.P. Singh (PW.1) has also examined injured

Pawan Kumar and observed as under:

“Local injuries:

A CLW over right foot approximately 5 cm about tip of right big toe

placed horizontally 1 cm 0.5 cm 1 cm in size with irregular margins

red in colour.

A bruise bluish in colour present 1 cm X 0.5 cm in size placed

obliquely over fifth metatars o-phalangel joint running lately on right

foot.

On the basis of x-ray report, the injury Nos.1 and 2

were declared dangerous to the life and were fresh in

duration and were caused by a blunt weapon. The

Doctor has issued MLC Ext.PW-1/C.”

On the same day, Dr. M.P. Singh (PW.1) has also examined injured

Jai Pal (PW.5) and found as under:

“Local Injuries

1.A CLW 1.5 cm in size placed in the middle of inner side

of upper lip placed obliquely upwards and lately on left

side, reddish scabbing over lip present with clotted

blood.

2.A bruise present over upper lip in the centre reddish

blue in colour 1 cm X 0.5 cm in size placed vertically.

No other injury was present. Teeth were normal.

Injuries No.1and 2 were simple and the duration of

injuries was within 24 hours and were caused by blunt

weapon.”

After his examination Doctor has issued MLC Ext.PW-1/D.

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Page 6 7. The accused-Manjeet Singh too was subjected to medical

examination, which was carried out by Dr. Dinesh Rana (PW.2) on 1

st

January, 2001 at about 5.55 p.m. The accused at the time of such medical

examination complained of pain in the fifth knuckle region of the left hand.

X-ray was advised. However, local examination revealed the presence of a

red colour contusion and swelling on such knuckle region. The accused also

complained of breaking of upper incisor tooth. He was referred to Dental

Surgeon. On the basis of dental opinion, such injury was opined to be of a

simple nature having been caused within the probable duration of 24

hours.

8. Balraj, a companion of the accused, was also medically examined

by Dr. Dinesh Rana (PW.2). Following injuries were found on his person:

“(i)4 cm 1 cm abrasion over the dorsum of right fore-

arm;

(ii)1.5 cm x 1.5 cm round abrasion red in colour, above

the writ joint;

(iii)3.5 cm x 2 cm abrasion, read in colour with linear

scratch in the mid. 3 cm outer aspect of the left knee

joint;

(iv) Multiple irregular abrasions on the entire lateral

aspect of the left lower leg. Red in colour, and

(v)Small irregular abrasion on the left side of the

forehead. Red in colour.”

All the injuries were opined to be of simple nature having been

caused with a blunt weapon within the probable duration of 24 hours.

9. The other companion of the accused, namely, Surender Kumar was

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Page 7 medically examined by Dr. Rajneesh Sharma (PW.4) on 1

st

January, 2001 at

about 4.35 a.m. One injury, that is, laceration over the fore-head 1.5 cm x

1 cm x 0.5 cm was found. He was smelling of liquor and there was slurring

of speech. The injury was simple in nature having been caused with a blunt

weapon with the probable duration of 6 hours.

10. On having been produced by the accused, Carbine-Ex.P4 with

empty magazine vide memo Ex.PW5/C were taken into possession by

Gulam Mohammad(PW.26), Additional Station House Officer of Police

Station Sadar, who had partially investigated the case. Six live cartridges

Ex.P1 to P6 were also produced by the accused, which were taken into

possession vide memo Ex.PW5/D by Gulam Mohammad(PW.26). Six empty

cartridges were taken into possession from the spot by Gulam

Mohammad(PW.26) vide memo Ex.PW5/E. Service belt of the accused,

which was lying on the bed in the Hall of the Hotel was also taken into

possession vide memo Ex.PW5/F.

11. The Ballistic Expert to whom the carbine, live and empty cartridges

were sent for examination, vide report Ex.PW25/E has opined that the

empty cartridges were fired from the carbine Ex.P4.

12. On completion of the investigation the accused along with his two

companions Balraj and Surinder Kumar were sent up for trial.

The accused was charged for the substantive offences under

Section 302 and 307 IPC, and under Section 27 of the Arms Act, 1959. His

two companions, Balraj and Surinder Kumar, were charged for the offence

under Section 114 read with Sections 302 and 307 IPC, for having abetted

7

Page 8 and instigated the commission of the offences under Section 302 and 307

IPC by the accused.

13. The accused and his two companions pleaded not guilty to the

charge and claimed trial. The prosecution in support of its case examined

as many as 26 witnesses.

14. The learned Additional Sessions Judge, on consideration of the

evidence coming on the record, by the impugned judgment, convicted and

sentenced the accused- Manjeet Singh as mentioned above.

15. The accused was acquitted of the offence under Section 307 IPC.

The two companions of the accused, Balraj and Surinder Kumar were

acquitted of all the charges framed against them.

16. By the impugned judgment the High Court noticed the submission

made on behalf of the appellant and on appreciation of the evidence on

record dismissed the appeal and affirmed the conviction and sentences

imposed by the Trial Court.

17. Learned counsel for the accused has assailed the conviction and

sentence on the ground that the accused had acted in exercise of the right

of private defence. It was submitted that the genesis of the occurrence was

different from what the prosecution has suggested and highlighted. In fact,

the occurrence had taken place in the manner suggested by the accused in

his defence. The deceased and his companions had made a forcible entry

8

Page 9 into the Hall of the Hotel and started beating the accused and his two

friends and in such course they had tried to snatch the carbine, which got

fired during the scuffle.

18. From the record, we find that neither the accused nor his two

companions in the statements recorded under Section 313 Cr.P.C., has

stated that the deceased and his companions were the aggressors and that

the accused was acting in exercise of the right of private defence. In fact,

their case is that of total denial. There is nothing on the record to suggest

that the accused or his companions received injuries at the hands of the

deceased or the deceased tried to snatch the carbine of the accused. No

evidence has been brought on record that the deceased and his

companions entered the Hall of the Hotel with arms.

19. Under Section 96, IPC, “Nothing is an offence which is done in the

exercise of the right of private defence”. Right of private defence of the

body and of property has been enumerated under Section 97, IPC, subject

to the restrictions contained in Section 99, IPC. As per the said section

every person has a right to defend-

“First. - His own body, and the body of any other

person, against any offence affecting the

human body;

Secondly-The property, whether movable or

immovable, of himself or of any other

person, against any act which is an offence

falling under the definition of theft, robbery,

mischief or criminal trespass, or which is an

attempt to commit theft, robbery, mischief

or criminal trespass.”

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Page 10 Section 102, IPC, deals with commencement and continuance of

the right of private defence of the body as follows:

“Section 102. Commencement and continuance

of the right of private defence of the body.- The

right of private defence of the body commences as

soon as a reasonable apprehension of danger to the

body arises from an attempt or threat to commit the

offence though the offence may not have been

committed; and it continues as long as such

apprehension of danger to the body continues.”

The extent and limitations of the right of private defence is

prescribed under Section 96 to 106, IPC. Such a right can be exercised only

to defend the unlawful action and not to retaliate.

20. This Court in George Dominic Varkey v. The State of Kerala,

(1971) 3 SCC 275, has held:

“6……Broadly stated, the right of private defence

rests on three ideas: first, that there must be no

more harm inflicted than is necessary for the purpose

of defence; secondly, that there must be reasonable

apprehension of danger to the body from the attempt

or threat to commit some offence; and, thirdly, the

right does not commence until there is a reasonable

apprehension. It is entirely a question of fact in the

circumstances of a case as to whether there has

been excess of private defence within the meaning of

the 4th clause of Section 99 of the Indian Penal Code,

namely, that no more harm is inflicted than is

necessary for the purpose of defence. No one can be

expected to find any pattern of conduct to meet a

particular case. Circumstances must show that the

court can find that there was apprehension to life or

property or of grievous hurt. If it is found that there

was apprehension to life or property or of grievous

hurt the right of private defence is in operation. The

person exercising right of private defence is entitled

to stay and overcome the threat.”

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Page 11 21. In Moti Singh v. State of Maharashtra, (2002) 9 SCC 494,

this Court held that dimension of the injuries may not be serious, it is the

situs of the injuries that would indicate whether the accused could

reasonably entertain the apprehension that at least grievous injuries/hurt

would be caused to him by the assaulters unless aggression is thwarted.

22. In the present case during the course of cross-examination of the

prosecution witnesses, especially Jai Pal(PW.5), Romi Kapoor (PW.6), Pawan

Kumar (PW.7), Satish Kumar (PW.9) and Charanjeet Singh (PW.12) an

attempt has been made on behalf of the accused to set up the case of

private defence.

23. In Rajender Singh and others v. State of Bihar, (2000) 4

SCC 298, dealing with the similar proposition this Court held as follows:

“Non-explanation of the injuries on the person of the

accused, ipso facto, cannot be held to be fatal to the

prosecution case. Ordinarily, the prosecution is not

obliged to explain each and every injury on the

person of the deceased even though such injuries

might have been caused during the course of the

occurrence and they are minor in nature. But where

the injuries are grievous, non-explanation of such

injuries would attract the Court to look at the

prosecution case with little suspicion on the ground

that the prosecution has suppressed the true version

of the incident.”

24. Evidence of eye-witnesses, especially of the injured, namely, Jai Pal

(PW.5), Romi Kapoor (PW.6) and Pawan Kumar (PW.7), which are

trustworthy, when read together, we find that non-explanation of the

injuries on the person of the accused and his two companions cannot be

held to be fatal to the prosecution case.

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Page 12 25. Satish Kumar (PW.9), an independent witness, who was also

staying and sleeping in the Hall where the occurrence had taken place,

though he was declared hostile, has admitted the correctness of the

prosecution story in the following terms:

“It is correct that when I woke up on hearing the

noise, I saw a boy coming in the hall and inquiring

about the Manager from the accused Manjit. It is

correct that one of the associates of accused Manjit,

i.e., one driver stated that we are not Chowkidar, so

you tell the Manager. It is correct that upon this

accused persons started beating that boy and

thereafter other associates of that boy also came in

the hall of that hotel after about 5-7 minutes.”

In answer to Court question, PW.9 has staed:

“The driver who was with accused Manjit was heavily

drunk and was also abusing the other party and

Manjit accused tried to prevail upon him and

thereafter said driver attempted to assault those 4-5

persons present in the hall and thereafter free

fighting between the parties.”

The above statement of Satish Kumar (PW.9) lends support to the

prosecution story to show that it was the accused who was the aggressor

and that the accused had not acted in private defence.

26. The question now requires to determine is as to what is the nature

of offence that the accused has committed. The evidence produced against

the accused does not show that the accused had any motive to cause

death of the deceased or have intended to cause such bodily injuries which

were sufficient in the ordinary course of nature to cause the death of the

deceased. Evidence on record also does not establish that the injuries

12

Page 13 caused on the body of the deceased must in all probability cause his death

or likely to cause his death. On the spur of the moment, during the heat of

exchange of words accused caused injuries on the body of the deceased

which caused his death. Therefore, the ingredients of the murder as

defined in Section 300, IPC, have not been established against the

accused. In our opinion, the accused was guilty of culpable homicide not

amounting to murder under Section 304, IPC, and considering the fact that

the accused had no intention to either cause the death of the deceased or

cause such bodily injury as is likely to cause death of the deceased, it

would be sufficient to impose on accused a sentence of seven years

rigorous imprisonment and to impose on him a fine of Rs.5,000/- and in

default of payment of fine, a further imprisonment of six months.

27. We, accordingly, set aside the conviction of the accused under

Section 302, IPC but hold him guilty of the offence under Section 304, IPC

and sentence him to seven years rigorous imprisonment and fine of

Rs.5,000/-, in default of payment of fine a further imprisonment of six

months. The conviction and sentences for the offence under Section 324,

IPC and Section 27 of the Arms Act passed by the Trial Court are affirmed.

All the sentences shall run concurrently. If the accused-Manjeet Singh has

not yet undergone the sentence imposed and affirmed by us, and is not in

custody, he be taken into custody to serve the remainder.

28. The appeal stands disposed of with the above observations and

directions.

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Page 14 …………………………………………………… J.

(A.K. PATNAIK)

…….……….…………………………………… J.

NEW DELHI, (SUDHANSU JYOTI MUKHOPADHAYA)

APRIL 25, 2014.

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Page 15 ITEM NO.1B COURT NO.10 SECTION IIB

(For Judgment)

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

CRIMINAL APPEAL NO(s). 1695 OF 2005

MANJEET SINGH Appellant (s)

VERSUS

STATE OF H.P. Respondent(s)

Date: 25/04/2014 This Appeal was called on for pronouncement of

judgment today.

CORAM :

HON'BLE MR. JUSTICE SUDHANSU JYOTI MUKHOPADHAYA

HON'BLE MR. JUSTICE R.K. AGRAWAL

For Appellant(s) Mr. Prashant Chaudhary,Adv.

For Respondent(s) Ms. Pragati Neekhra,Adv.

Hon'ble Mr. Justice Sudhansu Jyoti Mukhopadhaya

pronounced the reportable judgment of the Bench comprising

Hon'ble Mr. Justice A.K. Patnaik and His Lordship.

The conviction of the accused under Section 302,

IPC is set aside but he is held guilty of the offence under

Section 304, IPC and is sentenced to undergo seven years

rigorous imprisonment and fine of Rs.5,000/-, in default of

payment of fine a further imprisonment of six months. The

conviction and sentences for the offence under Section 324,

IPC and Section 27 of the Arms Act passed by the Trial Court

are affirmed. All the sentences shall run concurrently. If

the accused-Manjeet Singh has not yet undergone the sentence

imposed and affirmed and is not in custody, he be taken into

custody to serve the remainder.

The appeal stands disposed of in terms of the

signed reportable judgment.

[RAJNI MUKHI] [USHA SHARMA]

SR. P.A. COURT MASTER

(Signed reportable judgment is placed on the file)

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