Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 604 OF 2006

Ranbir Singh & Ors. ..Appellants

Versus

State of Haryana ..Respondent

J U D G E M E N T

R.M. LODHA, J.

Eight persons were sent up for trial to the Sessions

Judge, Sonepat for the offences under Section 148, 302, 324

and 323 read with Section 149 IPC. The trial Court convicted

four among them and acquitted the other four accused; one of

the acquitted accused had died during the trial. The convicted

persons were sentenced under Section 302 read with 34 IPC

to the life imprisonment and varying period of imprisonments

under other offences; fine with default stipulation was also

imposed. All the four convicted persons filed appeal before

the High Court of Punjab and Haryana. The High Court by its

judgment dated November 30, 2005 affirmed the conviction

and sentence imposed by the trial court. This appeal by special

leave is preferred by these four convicted persons.

2. The prosecution version is this: on September 26,

1990, Suresh (PW-12) took his buffaloes to Delhi Canal.

The buffaloes entered into the canal water. At the same

time Ranbir (A-1) also brought his buffaloes to the canal.

Ranbir asked Suresh to take out the buffaloes from the

canal but Suresh refused to do so on the ground that the

canal water was deep. At this, Ranbir pushed Suresh

into the canal. Suresh came out of the canal water and

went home crying and narrated the incident to his brother

Krishan (PW-1). Krishan protested with Ranbir in this

regard in the evening which led to an altercation between

them. Ranbir inflicted some injuries to Krishan which

was reported to the police in the night of September 26,

1990. On September 27,1990, Krishan is said to have

been medically examined. On September 28,1990, at

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about 8.00 A.M., PW-1 and his uncle Balwan(deceased)

were returning after answering the call of nature. When

they were about to take turn to the street to their house,

Ranbir (A-1), Balbir (A-2), Shiv Kumar (A-3), Sadhu (A-4)

came out of the Gher of Ram Sarup (A-6). A-1 was armed

with an axe while A-2 had Jailwa in his hand, A-3 and A-

4 were armed with lathies. A-1, A-2, A-3 and A-4

surrounded Balwan and exhorted to finish him off as

Krishan had escaped earlier. Seeing Balwan surrounded

by A-1, A-2, A-3 and A-4, PW-1, Rohtas (PW-13) and

Sahab Singh (PW-11) came running from their respective

Gher. A-1 inflicted an axe blow on the head of Balwan

while A-2 inflicted jailwa blow from the log side on the

head of Balwan. A-3 and A-4 also inflicted lathi blows on

Balwan. Balwan fell down. PW-1, PW-11 and PW-13

intervened. At this, A-3 and A-4 gave lathi blows to them

also. A-2 attacked PW-11 as well. PW-1, PW-11 and

PW-13 snatched lathies from A-3 and A-4. By that time

number of people had arrived; seeing them A-1, A-2, A-3

and A-4 ran away from the spot. At that time, Lekh Ram

(A-5), Ram Sarup (A-6), Bhalle Ram (A-7), Krishan son of

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Bhalle Ram (A-8) surrounded PW-1, PW-11 and PW-13

but PW-1, PW-11 and PW-13 attacked them by lathies

which they had snatched from A-3 and A-4. PW-1, PW-

11 and PW-13 took Balwan to Primary Health Centre,

Ganaur in an unconscious condition but he died on the

way. The doctor on duty there declared Balwan dead.

3. PW-1 lodged the complaint at Police Station,

Ganaur at about 1.35 PM., based on which first information

report was registered.

4. Daya Chand, ASI (PW-6) prepared inquest of the

dead body and sent it for autopsy which was conducted by

Dr. R.N. Tehlan (PW-8) at about 5.00P.M.

5. Dr. Krishan Kumar (PW-3), Medical Officer, Primary

Health Centre, Ganaur examined PW-1, PW-11, PW-13, A-5,

A-6, A-7 and A-8, all of whom were injured in the incident.

6. Ran Singh (PW-9) took all necessary steps towards

investigation and after collecting necessary evidence and on

completion of investigation, filed charge sheet in the Court of

Judicial Magistrate, First Class, Sonepat against the eight

accused persons.

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7. PW-8 conducted post mortem examination and

found following injuries on the dead body:

“1.Incised wound 10 x 3 cm present on right parietal

area of the skull, anteo-postering, 3 cm lat. to midline,

cutting scalp with regular margins. Right parietal bone was

fractured in pieces. The right parietal bone is fractured in

pieces. Three pieces are driven into the brain. (Right

cerebral hemisphere) and surrounding parietal bone is

depressed. Brain matter is present in the wound. Clotted

blood present around in the layers of scalp, extra-dural and

sub-dural area. Right cerebral hemisphere showed

haemotoma.

2. Red-brownish contusion on right supra-orbital ridge

3 cm x 2 cm, right eye was swollen.

3. Red-contusion 6 cm x 2 cm back of left arm.

4. Red-contusion 6 cm x 1.5 cm back of right fore-arm.”

8. According to PW-8, the cause of death of the

deceased Balwan was head injury. PW-8 also found that the

injuries were ante-mortem in nature and sufficient to cause

death in the ordinary course.

9. From the medical evidence, it is sufficiently

established that death of Balwan was homicidal. As a matter

of fact, the counsel for the appellant did not challenge this

aspect at all.

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10. That in the incident that occurred on September 28,

1990, Balwan died and PW-1, PW-11, PW-13, A-5, A-6, A-7

and A-8 sustained injuries is not in dispute.

11. Dr. Krishan Kumar examined PW-11 at about 10.40

A.M. on September 28, 1990. He found the following injuries

on his person:

“1.A penetrating wound 1 cm x 0.5 x 1 cm deep present

on the right side of chest, 6 cm above the right nipple and

9 cm below the sterno clavicular joint. Fresh clotted blood

present. No foreign body seen. There is cut mark on the

shirt above this injury mark with staining of blood. Adv. X-

Ray.

2. An abrasion 0.5 cm x 0.2 cm present on the chest 5.5

cm medially to the injury No. 1 and 2 cm below the

manubrium sterni.

3. Complaint of pain chest and respiratory distress.”

12. Dr. Krishan Kumar also examined PW-13 at about

11.05 A.M on the same day and he found the following injuries

on the person of PW-13.

“1.An abrasion 5.5 x 1 cm present on the back of right

shoulder. Red in colour. Movements normal.

2. An abrasion 6 x 0.2 cm present on the post surface of

left shoulder, 3 cm below the tip of shoulder.

3. A contusion 6 x 2.5 cm present on the post surface

right fore-arm, 11 cm below the elbow.

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4. A contusion 6 x 2 cm present on the post surface of

left fore-arm, 7 cm above the wrist.

5. A contusion 7 x 2 cm present on the P/L surface of

left fore-arm, 14 cm above the wrist.

6. A contusion 5.5 x 2 cm present on the A/L surface of

right upper arm, 10 cm above the elbow.”

13. On September 28, 1990, Dr. Krishan Kumar also

examined the accused. In the afternoon at about 12.40 P.M.

on September 28, 1990, A-5 was medically examined and

PW-3 found the following injuries on his person.

“1.A reddish contusion 7 x 2.5 cm present on the post

surface of left fore-arm, 4 cm above the wrist. There is

deformity and swelling around it. The movements of the

adjacent joints are restricted. Adv. x-ray.

2. ALW 1 cm x 0.5 cm present on the dorsal aspect of

P.I.P. joint of left index finger. Movements were restricted.

Advise X-ray.

3. ALW 3 x 0.5 x skin deep present on the palmer

aspect of left index finger and clots of blood present.

Movements painful.

4. A contusion 5 x 2 cm present on the A/L surface of

middle of left fore-arm. Adv. X-Ray.

5. A contusion 1.5 x 0.5 cm present on the posterior

surface of left side of back, 12 cm below the tip of shoulder

joint. Red in colour.

6. An abrasion 3 x 0.5 cm present on the anterior

surface of right thigh, 12 cm above knee.”

Injuries Nos. 1, 2, and 3 were subjected to X-ray examination.

A-5 was also radiologically examined by Dr. S.S. Wadhwa

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(PW-2). As per X-ray report (Ex.PE), A-5 had suffered fracture

of both bones of left fore-arm and dislocation of proximal inter

phalangeal joint of left index finger.

14. PW-3 at about 1.10 P.M. on September 28, 1990

medically examined A-8 and found the following injuries:

“1.ALW 1.5 X 0.5 cm x 0.5 cm present on the right side

of scalp, 8.5 cm above the right ear pinna, 13 cms away

from the outer canthus of right eye. Fresh clots of blood

present. No FB seen. Adv. X-ray.

2. A contusion 6 x 7 cm present on the ante surface of

middle of right upper arm. Reddish in colour. Adv. X-Ray.

3. A contusion 5 x 1 cm present on the post surface of

right wrist. Movements normal.

4. A contusion 8 x 7 cm present on the post surface of

left fore-arm in its middle. There is a swelling and deformity

around it. Movements restricted. Adv. X-ray.

5. A contusion 14 x 3 cm present on the post lateral

surface of right thigh, 3 cm above knee. Red in colour.

6. A contusion 8 x 2 cm present on the medial surface

of left thigh, 10 cm above knee.

7. A contusion 5 x 3 cm present on the medial surface

of right leg, 10 cm below the knee.

8. ALW 2.5 x 0.5 cm x 1.5 cm present on the ante

surface of left leg, 17 cm below the knee. Clotted blood

present. Adv. X-Ray. Movements were painful”

15. A-6 was medically examined by PW-3 on

September 28, 1990 at 1.40 P.M. Following

injuries were found on his person:

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“1. A lacerated wound 9 x 1 cm x bone deep present on

the right side of scalp, 10 cm above the right ear pinna, 4 cm

above the right eyebrow. Fresh clotted blood was present.

No foreign body seen. The injury was advised for X-ray.

2. An abrasion 1.5 x 0.5 cm present on the posterior

surface of right wrist. Movements were normal.

3. One abrasion 1.5 x 0.5 cm present on the anterior

surface of right thigh, 4 cm above knee.

4. A contusion below the nail bed of left ring finger. The

movements were present.

5. An abrasion 6 x 2 cm on the anterior surface of left

thigh at its lower 1/3

rd

.”

16. PW-3 at about 2.20 P.M. on September 28, 1990

medically examined A-7 also and found the following injuries:

“1. ALW 1 x 0.3 cm. x 0.5 cm present on the left side of

scalp, 10 cm above the left ear pinna 12 cm from the outer

canthus of left eye. Fresh clotted blood seen. No FB seen.

Adv. X-ray.

2. An abrasion 7 x 1 cm present on the middle of right

clavicle.

3. A contusion 17 x 2 cm present on the A/L surface of

right upper arm, just above elbow. Movements normal.

4. A contusion 7 x 3 cm present on the post surface of

right fore-arm, above the wrist. There is swelling and

deformity around it. Movements very painful. Adv. X-ray.

5. ALW 2 x 0.5 cm present on the palmer surface of left

little finger at its base. Painful. Movements were

normal.

6. A mild swelling just above the base of left little finger.

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7. An abrasion 2 x 1 cm present on the medial surface

of right leg, 14 cm above the medial mallolus.

Movements normal.

8. A contusion 10 x 3 cm present on the P/L surface of

left leg, 5 cm above the lat. mallolus.

9. An abrasion 5 x 2 cm present over the lateral surface

of left thigh, 22 cm above the knee.”

17. PW-3 also medically examined A-3 and found

following injuries on his person:

“1.An infected wound 4 x 1.5 cm x scalp deep present

on the left side of scalp, 7 cm above the left ear pinna and

12 cm behind and above the outer canthus of left eye.

2. An infected wound 2.5 x 0.5 cm x scalp deep present

on the right side of scalp, 11 cm above the right ear pinna.”

18. The learned counsel for the appellant strenuously

urged that the incident did not occur in the manner suggested

by PW-1, PW-11 and PW-13. He submitted that as a matter

of fact Balwan (deceased), PW-1, PW-11 and PW-13 had

come armed with lathies to Ram Sarup’s Gher and started

inflicting lathi blows to A-5, A-6, A-7 and A-8. To protect

themselves, in their right of private defence, A-1, A-2, A-3 and

A-4 inflicted injuries to Balwan and unfortunately that resulted

in his death. Learned counsel submitted that accused had no

intention whatsoever to cause his death. The learned counsel

would submit that at the highest, A-1, A-2, A-3 and A-4

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exceeded their right of private defence and for that they may

be liable for culpable homicide not amounting to murder.

Learned counsel submitted that the trial court as well as the

High Court failed to appreciate the defence version in right

perspective which was apparent from the suggestions put to

PW-1, PW-11 and PW-13 in their cross examination as well as

in the statement of the accused under Section 313 Cr.P.C. In

the alternative, he submitted that the case is covered by

Exception 4 to Section 300.

19. The controversy before us is in narrow compass

and that is whether the accused have been able to

probablise that the death of Balwan occurred in exercise of

their right of self-defence and whether they exceeded that

right.

20. Initially, on September 26, 1990, some argument

took place between A-1 and PW-12 with regard to taking out

the buffalos from canal; A-1 pushed PW-12 in canal water.

PW-12 went home crying. Then there was altercation later in

the evening between PW-1 and A-1. A-1 with the help of A-2

and A-5 is said to have inflicted some injuries to PW-1 in that

altercation. In this back ground, obviously it was PW-1 and

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his family members who had an axe to grind against A-1, A-2

and A-5 and not the accused party. Two days later, on

September 28, 1990, the incident occurred just out-side the

Gher of A-6. The prosecution case is that A-1 and Balwan were

returning after answering the call of the nature and when they

were about to take turn to the street to their house, A-1 and A-2

armed with axe and jailwa respectively and A-3 and A-4 armed

with lathies surrounded Balwan and after exhorting him, A-1

gave an axe blow on the head of Balwan; A-2 also gave blow to

Balwan on his head from log-side of jailwa and A-3 and A-4

gave lathi blows. The prosecution case about commencement

of incident appears to be little doubtful. In our opinion, the

prosecution has not come out with truthful version as to how the

incident commenced. This is so because, according to PW-1,

he was ahead of Balwan by 50 paces. If A-1, A-2, A-3 and A-4

were aggressors, they would have attacked PW-1 as he had

reached Gher of A-6 first and Balwan was about 50 paces

away from him. A-1, A-2, A-3, and A-4 had no direct quarrel

with Balwan. Altercation was exchanged between A-1 and

PW-1 two days before. Why should have they spared PW-1?

The prosecution version is, thus, not in accordance with human

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probabilities. On the other hand, the defence version is that

PW-1, PW-11 and PW-13 and Balwan were armed with lathies;

they came to the Gher of Ram Sarup (A-6) and started

assaulting A-5, A-6, A-7 and A-8 and in their self-defence they

attacked assailants and as a result of which Balwan died. That

A-5, A-6, A-7 and A-8 sustained multiple injuries in the incident

is admitted by prosecution. The prosecution sought to explain

the injuries on A-5, A-6, A-7 and A-8 by submitting that PW-1,

PW-11 and PW-13 snatched lathies from A-3 and A-4 in their

self-defence and gave lathi blows to A-5, A-6, A-7 and A-8.

However, PW-11 in his cross examination stated that he did not

snatch any lathi from A-3 and A-4. On a careful consideration

of the cross-examination of PW-1, PW-11 and PW-13, the

possibility of the complainant party being aggressors cannot

be ruled out. The defence has been able to probablise that

complainant party attacked first. As a matter of fact, A-5

received six injuries and few of these injuries were grievous.

A-8 sustained eight injuries while A-7 received nine injuries

some of which were grievous. A-6 also received injuries.

When we observe this, we are not oblivious of the fact that

number of injuries on the accused side by itself may not be

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sufficient to establish right of private defence.

21. The Court should take an overall view of the case

and if a right of self-defence is made out from the evidence on

record, that right should not be construed narrowly because

the right of self-defence is a very valuable right and it has a

social purpose. (Vidya Singh v. State of Madhya Pradesh

1

).

22. The aforenoticed statement of law exposited in

Vidya Singh

1

has been reiterated by this Court in V.

Subramani and Another v. State of T.N.

2

. In V. Subramani, this

Court went on to observe:

“….Situations have to be judged from the subjective point of

view of the accused concerned in the surrounding

excitement and confusion of the moment, confronted with a

situation of peril and not by any microscopic and pedantic

scrutiny. In adjudging the question as to whether more force

than was necessary was used in the prevailing

circumstances on the spot it would be inappropriate, as held

by this Court, to adopt tests by detached objectivity which

would be so natural in a courtroom, or that which would

seem absolutely necessary to a perfectly cool bystander.

The person facing a reasonable apprehension of threat to

himself cannot be expected to modulate his defence step by

step with any arithmetical exactitude of only that much which

is required in the thinking of a man in ordinary times or under

normal circumstances.”

23. The learned counsel for the appellants has not set

up before us the right of private defence as a total defence.

1

1971 (3) SCC 244

2

(2005) 10 SCC 358

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His whole emphasis was with reference to Exception 2 to

Section 300 that reads as follows:-

“Exception 2. – Culpable homicide is not murder if the

offender, in the exercise in good faith of the right of private

defence of person or property, exceeds the power given to

him by law and causes the death of the person against

whom he is exercising such right of defence without

premeditation, and without any intention of doing more harm

than is necessary for the purpose of such defence.”

24. The existence of good faith is a must before the

accused claims benefit of this exception. While acting in good

faith, if the accused has exceeded the right of self-defence and

caused death of a person without pre-meditation and further he

had no intention to causing more harm than was necessary for

the purpose of the defence although in fact more harm was

caused, the benefit of Exception 2 to Section 300 may be

available if the accused was not the aggressor.

25. The burden of proving self-defence is always on

the accused but it is not as onerous as the one which lies with

the prosecution. Such burden can be discharged by

probablising the defence. The accused may discharge his

onus by establishing a mere preponderance of probabilities

either by laying basis for that plea in the cross examination of

prosecution witness or by adducing defence evidence.

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26. The High Court and the trial court in the instant

case, failed to consider the plea of self-defence set up by the

accused in right perspective. Having considered the matter

thoughtfully, and in what we have discussed above, we are

satisfied that the accused have been able to make out a case

for the benefit of Exception 2 to Section 300.

27. The appellants are, thus, held guilty of the offence

punishable under Section 304 Part I read with Section 34 IPC.

Their conviction under Section 302 read with 34 IPC is altered

to Section 304 Part I read with Section 34 IPC.

28. We are informed that the appellants have already

suffered imprisonment of almost nine years. In the

circumstances, the sentence undergone, for the offence

punishable under Section 304 Part I IPC, shall meet the ends of

justice. Their conviction and sentence under other offences is

maintained.

29. The appeal is, accordingly, allowed in part. The

appellants be released forthwith, if not required in any other

offence.

………………….J

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(D.K. Jain)

………………….J

(R.M. Lodha)

New Delhi,

April 30, 2009

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