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CASE NO.: Appeal (crl.)  828 of 2007

PETITIONER: Ananta Deb Singha Mahapatra & Ors

RESPONDENT: State of West Bengal

DATE OF JUDGMENT: 06/06/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (Crl.) No.1263 of 2007)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.

2.      Challenge in this appeal is to the judgment of a Division  Bench of the Calcutta High Court dismissing the appeal filed  by the appellants questioning their conviction for the offence  punishable under Sections 304 Part II read with Section 149  of the Indian Penal Code, 1860 (in short the ’IPC’). Appellants  1 to 4 before the High Court were sentenced to suffer RI for 8  years and to pay a fine of Rs.1,000/- each with default  stipulation.  Appellants 1, 2 and 5 before the High Court were  also convicted under Section 323 read with Section 149 and  sentenced to undergo imprisonment for six months and to pay  a fine of Rs.200/- each with default stipulation. Appellants 1,  2 and 5 before the High Court are appellants 1, 2 and 3  respectively in this appeal.      

3.      Background facts in a nutshell are as follows:

       On 13.9.1990 at about 2:30 P.M. the appellants  accompanied by 15 others as named in the FIR started cutting  paddy from the land of the informant Niranjan Singa  Mahapatra (P.W. 2) in plot no. 122/470 of mouza Dakshinbaid  within P.S. Khatra.  Seeing this Madhusudan Singha  Mahapatra (hereinafter referred to as ’deceased’) reached there  and raised protest, and over this the accused persons  assaulted on the head of the deceased with lathis and also cut  the fingers of hand of the deceased with sharp sickle. Hearing  the alarm by the deceased, P.W. 2 and his mother Monorama  Singha Mahapatra (P.W. 4) reached there, but the accused  persons also assaulted P.W. 2 and P.W. 4 and in their  presence gave further blows on the head of the deceased  Madhusudan Singha Mahapatra with sickles. Madhusudan  Singha Mahapatra fell down on the land and thereafter, P.W. 2  with the help of the other villages brought his father and  mother to the police station. The police officer on duty told  them to go to the Khatra hospital and as instructed they came  to the Khatra PHC. After primary treatment the doctor of the  said PHC sent all the injured persons to the Bankura Medical  College and Hospital where parents of P.W. 2 were admitted  and P.W. 2 was discharged after primary treatment. P.W. 2  sent the written complaint FIR (ext. 2) through his brother in  law Dwijapada Kar (P.W. 5) to the Khatra Police Station and on  the basis of such written complaint Khatra P.S Case no. 40  dated 13.9.90 under sections 147/148/149/48/324/325/379

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of IPC was started against the accused persons. The injured  Madhusudan Singha Mahapatra succumbed to the injuries on  14.9.90, and thereafter, Section 304 of IPC was added and  after completing the investigation Officer (in short I.O.)  submitted charge sheet against the accused persons under  section 147/148/149/48/324/325/379 and 304 IPC. The  trial that followed ended in the conviction and sentence of the  appellants as mentioned above.

5.      Before the High Court the primary stand was that the FIR  was manipulated and ante dated and it was a tampered  document. Reference was made to evidence of PW-2 in this  regard.  It was also contended that the accused persons were  seriously prejudiced because case and counter case were not  tried by the same court.  The plea of right of private defence  was also raised.                                                 The learned counsel for the State on the other hand  submitted that the FIR was not manipulated, and the right of  private defence was also not available.  

6.      The High Court analysed the evidence elaborately and  came to hold that the trial court’s conclusions were  irreversible.  

7.      In support of the appeal learned counsel for the parties  reiterated the submissions before the High Court.  Learned  counsel for the appellant additionally submitted that the  sentence imposed by the trial Court and the High Court are  expressly harsh.  8.      So far as the plea relating to FIR is concerned, it can be  seen that the High Court has referred to the evidence of PW-16  and PW-4 to conclude that there was no substance in the plea  relating to manipulation of the FIR.  The High Court noted as  follows:     

"The formal FIR (ext. 7) shows that the original  written complaint/FIR was received on 13.9.90  at 4.05 P.M. and the police officer made an  endorsement on the back of ext. 7 to the effect  that the original written compliant was  attached herewith.  There is endorsement of  the same police officer on the reverse page or  the second page of the original FIR with his  signature and date 13.9.90 which shows that  he received the same on 13.9.90 at 4.05 P.M.  and started Khatra P.S. Case No.40 dated  13.9.90 and the said endorsement on the  original written complaint is ext. 2. The  original written complaint was written by  P.W.2 in Bengali and in it the Bengali digits  ’14’ was changed to ’13’.  This overwriting  concerning date in Bengali in the original  complaint cannot establish that FIR was ante- dated, ante-timed and manufactured."      

9.      Coming to the plea relating to right of private defence the  High Court noted that the Madhusan fell down in the Paddy  field after receiving lathi blows and PW-2 went to a safe place   to save his life and there was none to attack the appellants.  In  spite of this fact, the appellants went on assaulting the  deceased and in that process caused more harm to the  deceased than was necessary to exceed the right of private  defence.  Thus the appellants were guilty for the death of  Madhusudan.

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10.     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  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, 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  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 is 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."

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11.     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.

12.     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  probabilities 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)]. In this case, as the Courts  below found there was not even a single injury on the accused  persons, while PW2 sustained large number of injuries and  was hospitalized for more than a month.  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 shows 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.

13.     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

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destroyed or has been put to route, there can be no occasion  to exercise the right of private defence.

14.     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.  Thus, running to house, fetching a tabli and  assaulting the deceased are by no means a matter of course.  These acts bear stamp of a design to kill and take the case out  of the purview of private defence. Similar view was expressed  by this Court in Biran Singh v. State of Bihar (AIR 1975 SC  87) and recently in Sekar @Raja Sekharan v. State  represented by Inspector of Police, Tamil Nadu (2002 (7)  Supreme 124).  

       The High Court has, therefore, rightly rejected the plea  relating to exercise of right of private defence.   

15.     Coming to the question of sentence we find that 8 years  sentence has been awarded for the offence punishable under  Section 304 Part II.  The incident is of the year 1990.   Considering this fact and the background in which the  occurrence took place, custodial sentence of 6 years would  meet the ends of justice.

16.     So far as appellant no.3 is concerned, the conviction is in  terms of Section 323 read with Section 149 and the sentence  is 6 months.  It appears from the record that he has already  suffered custody of nearly 5 months. Keeping this in view the  sentence is reduced to the period already undergone.       17.     The appeal is allowed to the aforesaid extent.