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CASE NO.:

Appeal (crl.) 1023 of 1999

PETITIONER:

State of Madhya Pradesh

RESPONDENT:

Ramesh

DATE OF JUDGMENT: 18/11/2004

BENCH:

ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

State of Madhya Pradesh calls in question legality of the

judgment rendered by the Division Bench of the Madhya Pradesh High

Court. The respondent faced trial for alleged commission of offences

punishable under Sections 302 and 338 of the Indian Penal Code, 1860

(in short the 'IPC'). Originally his father Ram Kirpal, brother Rakesh

and mother Nonibai also faced trial with him. They were acquitted by

the trial Court, while respondent was convicted for causing the

homicidal death of one Rajendra (hereinafter referred to as the

'deceased') by gun shot on 20.5.1986. He was sentenced to life

imprisonment for the offence relatable to Section 302 IPC. He was also

convicted in terms of Section 338 IPC for causing grievous injury to

Krishna (PW-6) who was injured by the same bullet which after passing

through the body of deceased Rajendra struck Krishan and caused

grievous injury to him. For this offence he was sentenced to undergo

RI for one year and fine of Rs.1000/- with default stipulation.

Prosecution version in nutshell is as follows:

On 20.5.1986 deceased Rajendra and Kuldeep (PW 1) were returning

after their examination. They were passing in front of the house of

Ram Kripal (acquitted accused) who was a municipal counciler those

days. Ram Kirpal knowing that these boys were friendly with Dinesh

(PW-2), who was a press reporter of that area, advised them to abjure

company of Dinesh. Finding them non-responsive Ram Kirpal, his two

sons Ramesh and Rakesh and his wife Nonibai started pelting stones on

deceased Rajendra and Kuldeep (PW 1). Thereafter, Ram Kirpal asked his

son Ramesh to get his gun from the house. Ram Kirpal asked Ramesh to

shoot these boys, Ramesh then brought out a 12 bore gun and fired a

shot at deceased Rajendra from a distance of about 5 paces. At that

time Dinesh (PW 2) reached there while the shot was fired. This shot

struck Rajendra in the left iliac crest passing through the stomach

region and damaged various internal organs. It emerged from the right

side of the body and struck Krishna ( PW 6) who also happened to reach

by that time. The bullet struck him in the left arm and passed through

fleshy portion and then struck the back region and got embeded on the

spinal cord, ultimately resulting in paralysis. Rajendra died at the

spot.

The prosecution case based on the testimony of Kuldeep (PW-1),

Krishna (PW-6), Dinesh (PW-2), Sureshwar Pandey, ASI (PW-8), who also

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happened to be present there and had witnessed the incident. Further

reliance was placed on the medical report of autopsy surgeon and

medical opinion regarding injuries of Krishna. Medical report showed

that deceased Rajendra had been struck with the gun shot which entered

into left iliac crest and emerged in the right side and injured some

vital organs such as Kidney, Spleen and Liver. The FIR was lodged by

Kuldeep (PW-1) on the same day within 10 minutes after this incident.

The accused's case was that Rajendra had approached Ram Kirpal in

his capacity as Municipal Councillor to obtain his residential

certificate. He had gone with the other boy. Ram Kirpal knew that

Rajendra was in fact resident of Uttar Pradesh and not resident of

Chhatarpur, so he declined. This resulted in exchange of hot words.

Rajendra had been persuaded by Dinesh (PW 2) who was a press reporter

and whose writings were used to be against Ram Kirpal in respect of

developments of various areas of municipality. Dinesh

(PW 2) had also tried to put his influence on Ram Kirpal for issuing

certificate to Rajendra but Ram Kirpal did not oblige. He was attacked

by these boys and he suffered 5 injuries. He was medically examined

next day after the incident and 5 injuries caused by blunt object were

found on his person. So his case was that since he was attacked by

these boys, he called for help from his sons. Ramesh brought out a gun

and that gave rise to the firing.

The story of the first attack on Ram Kirpal did not find favour

with the trial Court and the story of the prosecution was accepted,

although presence of Sureshwar Pandey was not accepted by the trial

Court and his testimony was found to be false. But the trial Court held

that the firing was deliberate and, therefore, the finding of guilt

under Section 302 was returned regarding death of Rajendra.

Co- accused persons were however acquitted.

Accused filed appeal before the High Court and contended that it

was clearly a case where right of self defence was available. Even if

it is held that while acting for protecting the private defence of his

father he had exceeded limit, Section 302 IPC would not be attracted.

It was pleaded that while Ram Kirpal and his family were at their home

deceased and Kuldip (PW-1) were returning after examination. In the

ordinary course of conduct Ram Kripal would not have advised them to

keep away from PW 2.

There was no reason for him and his family members to start pelting

stones. If such incident would have happened, there certainly was

possibility of reaction from the side of the deceased and his friends

that has not been disclosed. The story of pelting stones has been

disbelieved by the trial Court. Five injuries which were there on the

body were not explained by the prosecution. On the other hand, the

plea of defence is more acceptable. The deceased was attacked and

certainly he became violent and attacked accused-respondent Ramesh and

caused injuries and Ramesh emerged from his house. Ramesh was acting

in self defence of his father.

Prosecutions' stand was that it is clearly a case of deliberate

killing and there was no basis for inferring any right of self defence.

The trial Court accepted the plea of self defence and altered the

conviction to Section 304 Part I IPC and awarded custodial sentence of

12 years. Such alteration is subject matter of challenge in this

appeal.

In support of the appeal, learned counsel for the State submitted

that the approach of the High Court is clearly erroneous. The

conclusions are based on surmises, conjectures and guess work. Clear

and cogent evidence has been lightly brushed aside and acting on

presumption and surmises and guess work, it has been held that the

accused was acting in self defence. The High Court was not itself

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clear whether it is a case of grave and sudden provocation to be

covered by Exception I or exceeding of limit of right of self defence

in terms of Exception II of Section 300.

In response, learned counsel for the respondent submitted that

the High Court has analysed the evidence in detail and come to a

definite finding that the right of private defence was available to the

accused though he had exceeded the same. In view of the matter no

interference is called for.

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 legitimately 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 up 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

necessarily 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 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

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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 probabilise 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 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 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

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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

circumstances, 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 exactly 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, as noted

above, a finding of fact.

The right of self-defence is a very valuable right, serving a

social purpose and should not be construed narrowly. (See Vidhya Singh

v. State of M.P. (AIR 1971 SC 1857). 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 Court room, 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.

In the illuminating words of Russel (Russel on Crime, 11th Edition

Volume I at page 49):

"....a man is justified in resisting by force anyone

who manifestly intends and endeavours by violence or

surprise to commit a known felony against either his

person, habitation or property. In these cases, he

is not obliged to retreat, and may not merely resist

the attack where he stands but may indeed pursue his

adversary until the danger is ended and if in a

conflict between them he happens to kill his

attacker, such killing is justifiable."

The right of private defence is essentially a defensive right

circumscribed by the governing statute i.e. the IPC, available only

when the circumstances clearly justify it. It should not be allowed to

be pleaded or availed as a pretext for a vindictive, aggressive or

retributive purpose of offence. It is a right of defence, not of

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retribution, expected to repel unlawful aggression and not as

retaliatory measure. While providing for exercise of the right, care

has been taken in IPC not to provide and has not devised a mechanism

whereby an attack may be a pretence for killing. A right to defend does

not include a right to launch an offensive, particularly when the need

to defend no longer survived.

We find that the High Court has acted on surmises and conjectures

to conclude certain aspects. Firstly, it has come to conclude that the

boys including the deceased attacked Ramesh "may be with fists, may be

with some blunt weapon". There was no evidence in this regard. It was

further held that there was no reason for Ram Kirpal and his family

members to pelt stones. The deceased and his friends attacked Ram

Kirpal though weapon used by them are not known. Reference was made to

the injuries on Ram Kirpal. It was further held that probably some

heat was generated either because of the advise of Ram Kirpal was not

accepted or because request of the boys to issue certificate was not

accepted by him. Because of the heat generated between the boys and

Ram Kirpal, the boys started hitting Ram Kripal causing injuries. In

this condition "probably" he asked his sons to shoot the assailants

and Ramesh fired a gun shot resulting in fatal injury to deceased and

grievous injury to Krishna. It was further held that when there was

some exchange of hot words between the deceased and his friends, on one

hand and Ram Kishan on the other the boys started attacking on his

father and this was grave and sudden provocation to the sons. In the

aforesaid background it was held that when Ram Kirpal asked his sons to

kill. Exception I to Section 300 would be attracted. The conclusions

are not based on evidence and are based on surmises, conjectures and

guess work. As aforesaid noted, it was first concluded that right of

private defence was exceeded. It was further held that the case is

covered by either Exception I or Exception II to Section 300, as

injuries on the accused not explained. The findings are vague,

unclear and indefensible. As noted above, for some conclusions the

High Court acted without any evidence and frequently used the

expression 'Probably'. A new case which was not even pleaded by the

parties was introduced on its own by the High Court. Undue importance

was attached to some superficial injuries of very minor nature on Ram

Kirpal. It is trite that there are some minor or superficial injuries

suffered by the accused that shall not affect a credible and cogent

prosecution version even if the prosecution has not explained the

injuries. The vaccilating nature of the conclusions is apparent

because the High Court was not very sure as to whether Exception I or

Exception II to Section 300 I.P.C. applied. They operate in entirely

different fields. One relates to grave and sudden provocation and the

other to exercise of right of private defence.

The High Court was not justified, therefore, to alter the

conviction to Section 304 Part I IPC. The trial Court had rightly

convicted the accused in terms of Section 302 IPC.

Accordingly the judgment of the High Court is set aside and that

of the trial Court is restored.

Appeal is allowed.