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CASE NO.:

Appeal (crl.) 155 of 2002

PETITIONER:

SEKAR @ RAJA SEKHARAN

RESPONDENT:

STATE REP. BY INSPECTOR OF POLICE, T. NADU

DATE OF JUDGMENT: 03/10/2002

BENCH:

ARIJIT PASAYAT & S.B. SINHA

JUDGMENT:

JUDGMENT

2002 Supp(3) SCR 113

The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. The accused is in appeal before this Court against

judgment of the Madras High Court upholding his conviction for offence

punishable under Section 302 of the Indian Penal Code, 1860 (in short

"IPC") and consequential sentence of imprisonment for life.

The factual scenario as described by the prosecution need to be noted in

brief. On 19.8.1989, there was exchange of hot words over the release of a

sheep. Palaniswamy (hereinafter referred to as "the deceased") impounded

the sheep which, according to him, was destroying his crops. Accused and

others went to the place where the sheep was tied and they untied it from

the rope. This led to exchange of words between the deceased and the

accused. When the deceased fell down after receiving injuries on his hand

and left shoulder, the accused again inflicted another blow on his neck.

The occurrence was witnessed by PW-1, PW-2 and PW-3. Information was lodged

at the police Station and on completion of investigation, charge-sheet was

placed and the accused faced trial. The accused took the plea of false

implication and alternatively pleaded that the assaults were made in

exercise of right of private defence. The trial court placing reliance on

evidence of PW-1, PW-2 and PW-3 came to hold that the accused was

responsible for the death of the deceased. Plea of the accused that the

assaults were made in exercise of the right of private defence was not

accepted, more particularly in view of the fact that even after the

deceased had fallen down, the accused inflicted a further blow on the neck.

In appeal, the High Court did not find any merit in the submissions made to

the effect that this was a case which was clearly covered by the accused's

exercise of right of private defence. Having rejected this stand of the

accused, the High Court analysed the evidence to conclude that the

conviction was justified.

Learned counsel for the appellant submitted that the evidence of witnesses

examined to substantiate the stand of right of private defence has been

lightly brushed aside by the trial court and the High Court. The accepted

prosecution version being that the assaults were made in course of a sudden

quarrel, Section 302 IPC has no application. Learned counsel for the State

of Tamil Nadu, on the other hand, submitted that after analysis of the

factual position, the trial court as well as the High Court have come to

conclude that the accused was responsible for the death of the deceased and

this is not a case where the right of private defence can be pressed into

service by the accused.

In view of the categorical evidence of PW-1, PW-2 and PW-3 implicating the

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accused, we find no reason to accept the plea of the accused about his

innocence. In fact, the occurrence has been accepted but the plea was one

of exercise of right of private defence. The plea relating to exercise of

right of private defence has been rightly rejected by the courts below. It

is in evidence that accused dealt a further blow on the neck, after the

deceased had fallen down after receiving blows on other parts of the body.

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 circumstance 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 takes 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 warding off the attack or for

forestalling any further reasonable apprehension, from the attacker. The

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

burden stand discharged by showing preponderance of probabilities in favour

of that plea on the basis of the material on record. See Muashi Ram 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 Mohindra Pal v. State of Punjab, AIR (1979) SC 577. Sections 100 and

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 the Supreme Court in Salima 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 nilt 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

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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 probabilises 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 grievous hurt would be caused

to him. The burden is on the accused to show that he had 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.

We notice that there was an altercation between the accused and the

deceased. There was no pre-meditation and the assaults were given by the

accused during the course of the sudden quarrel. This, according to us,

brings the case within the ambit of Exception IV to Section 300 IPC. Even

otherwise, this appears to be a case of accused exceeding the right of

private defence. The appropriate conviction would, therefore, be under

Section 304 Part I, IPC and custodial sentence of 10 years would meet the

ends of justice.

While awarding the sentence, one factor which has weighed with us is that

two rustic villagers fought over a sheep which led to the death of one. The

social status of the accused and the deceased, which as the materials on

record show is that of the lowest layer. They belonged to the economically

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distressed class; were illiterate daily wage earners. Their financial

condition can be well gauzed from the fact that they fought over a sheep

and the minimal damage done by it to the crops. There was no previous

enimity. A spur of the moment loss of faculties led to the unfortunate

occurrence. This is certainly a relevant factor to be taken note of while

awarding the sentence. We, therefore, reduce the sentence to 10 years and

if the accused has undergone the period of 10 years and is not required to

be in custody in any other case, he shall be released forthwith.

The appeal is allowed to the extent indicated.