REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  1490   OF 2007

Arun    ..Appellant    

Versus

State of Maharashtra  ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division Bench of the

Bombay High Court, Aurangabad Bench  upholding the conviction of the

appellant  for  offence  punishable  under  Section  302  of  the  Indian  Penal

Code, 1860 (in short the ‘IPC’) and sentence of imprisonment for life and a

fine of Rs.500/- with default stipulation. He was also convicted for offence

punishable  under  Section  324  IPC  and  sentenced  to  undergo  rigorous

imprisonment for a period of one year and a fine of Rs.250/- with default

stipulation.   He was also convicted for offence punishable  under Section

342 IPC and sentenced to undergo RI for three months and fine of Rs.100/-

with  default  stipulation.  Additionally,  he  was  charged  for  offence

punishable under Section 454 IPC and he was separately sentenced to suffer

RI  for  a  period  of  one  year  and  to  pay  a  fine  of  Rs.250/-  with  default

stipulation.  Two others  co-accused  persons   were  acquitted   by the  trial

Court of all  charges.  Both the appellant and the State filed appeals. The

State’s appeal was directed against the acquittal of accused Nos.2 and 3 and

the same was dismissed at the admission stage.  

3. Background  facts  giving  rise  to  the  trial  as  projected  by  the

prosecution are as follows:

Appellant  and the  deceased Sampatrao Gopal  Khandekar were real

brothers. They had two other brothers by name Haribhau and Indakar.  The

deceased Sampatrao was an educated person and was a professor at Balbhim

College in Beed. He was also managing an educational trust by name “Bade

Baba Shikshan  Sanstha”  at  village  Lahuri,  Taluka Kaij,  in  district  Beed.

Deceased  and  his  brothers  were  separate  in  residence  and  there  was  a

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partition  effected  between  the  brothers.  Deceased  Sampatrao  was  in

possession  of  his  share  of  the  ancestral  lands  and  also  had  some  self

acquired   land  at  village  Kolhewadi.  As  regards  the  educational  trust

mentioned herein above, deceased Sampatrao was a founder member and

the  Secretary.  The  family  of  Sampatrao  was  residing  at  Beed  since

Sampatrao was serving as a professor in the town. Sampatrao used to get his

lands, in village Kolhewadi, cultivated with the help of labourers. His two

brothers i.e. the present appellant and Indakar (A-3) who were residents of

village  Kolhewadi,  had  a  dispute  with  the  deceased  Sampatrao  as   the

partition  and its  terms were not  acceptable  to  them. Sampatrao and wife

Mangalabai had filed Regular Suit No.285 of 1996 in the Court of the Civil

Judge, Junior Division at Kaij  for a declaration of title  and injunction in

respect of five lands which were the suit property in that suit. The suit was

filed against two brothers i.e. the present appellant and A-3 Indakar as well

as some other members of their family. In the suit, the deceased and his wife

filed an application for grant of interim injunction, on 31st October 1996,

and  the  interim  injunction  application  was  allowed  by  the  Civil  Judge,

Junior Division, Kaij 4th November, 1996. Even after the grant of injunction,

the disputes  remained, because the cotton crops were allegedly stolen by

accused  No.1  Arun,  acquitted  accused  No.3  Indakar  and  their  family

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members  and  in  this  regard  a  police  complaint  was  filed  by  PW-13

Mangalabai,  wife  of  deceased against  the  present  appellant  and A-3 and

their  family members.  She had prayed for  strict  police action against  the

persons named in the complaint. All these facts  indicate that the relations

between  family  of  deceased  Sampatrao  and  the  families  of  his  two  real

brothers were strained and inimical.

The incident in question took place  on 22nd  November 1996. Prior to

incident,  PW-11  Bhairu  Anna  Khose  had  been  engaged  by  deceased

Sampatrao  to  work  in  his  fields  for  period  of  three  months  in  lieu  of

payment of Rs.5,000/--. PW-11 Bhairu Khose had executed a Naukarnama

to  this  effect.  He had  agreed  to  work  on  the  field  of  Sampatrao  on  21st

December,  1996  and  Sampatrao  had  asked  him  to  meet  him  at  village

Neknoor. Accordingly, they had met at Neknoor and from there had gone to

village  Kolhewadi.  On  22nd December,  1996,  in  the  morning,  deceased

Sampatrao  took  PW-11  Bhairu  to  his  field.  Adjoining  to  the  field  of

deceased  Sampatrao,  was  the  field  of  accused  No.2.  This  field  had  an

electric  motor  and a  pipeline  fitted therein.  At  the  spot,  there  was  some

discussion between deceased Sampatrao and accused No.2 pertaining to the

supply of water to his field and to the field of accused No.1. Accused No.3

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Indakar was also present at the spot,  at that time. After this incident, the

deceased Sampatrao and PW-11 Bhairu came walking through the fields to

Shri Bade Baba Vidyalaya Mandir i.e. the school situated at village Lahuri.

They reached the  Lahuri  school  at  about  11.45  a.m. got  the office room

opened through a Peon and were sitting in the office. At that time, accused

Nos.1 and 3 came running towards  the school.  A-1 Arun,  who was also

working as a peon in the said school, latched the door of the office room

from outside and from the window he told PW-11 Bhairu that if he wanted

to save himself, he should come out. Sampatrao told his brother Arun that

Bhairu was his servant and that he would not leave. Sampatrao then locked

the door of the office from inside, shutting out accused No.1 Arun. Accused

No.1 Arun then climbed on to the roof of the office, which was a tin shed.

He bent a sheet of tin on the roof of the said office and from the opening so

created, he jumped into the office room. After jumping into the office room

he took out chilly powder from his right pocket and threw it into the eyes of

deceased Sampatrao. He then picked  up an iron hammer and with this iron

hammer as well as a brick which had been stored in the room along with

other bricks kept for construction purposes, he hit the deceased Sampatrao

pressed his neck and inflicted eight blows on the head of the deceased. PW-

11 Bhairu was requesting accused No.1 Arun not to beat Sampatrao. At that

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time, accused No.2 informed Bhairu from the window that he should not

interfere in the quarrel between the brothers. Accused No.2 caught hold of

the  hands  of  PW-11  Bhairu  near  the  window.  Accused  No.1   was  also

carrying a wire on his waist and he used this wire also to beat Sampatrao.

Accused No.1 threw a brick which struck the forehead of Bhairu and also

beat  Bhairu  with  the  wire.  Bhairu  fell  down  and  pretended  to  be  dead.

Accused No.1 Arun, however, asked Bhairu to shift the table to the place in

the room where the tin sheet of the roof had been bent. He made Bhairu

keep a  chair  on  the  table  and both,  he and Bhairu  got  out  of  that  room

through the damaged tin roof. The accused Nos.1 to 3, thereafter, left the

place and went together to the side of Lahuri village. There were some other

persons who went behind them. This entire incident was over by about 1.00

p.m. PW-11 Bhairu then went in a jeep to Police Station, Kaij. He narrated

the entire incident to the police and the police recorded his FIR  on the same

day.

Sudarshan Mundhe, API (PW-17) who was then attached to the Kaij

Police Station, registered the crime under CR. No.257 of 1996, for offences

punishable under Sections 302, 342 read with Section 34 IPC.  He found

that the clothes  of the complainant were blood stained. He first seized the

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clothes  of  the  complainant  under  Panchnama  (Exhibit-31).  Since  the

complainant was injured the investigating officer referred  him for medical

treatment to the Government Hospital at Kaij. PW-17 API Sudarshan then

summoned a photographer and together with the photographer, he went to

the spot of the incident. He found the room of the office to be locked. The

police managed to open the lock of the office but even after opening the

lock and unlatching the door they found that they could not enter the office

because it was latched from inside. One police constable was then made to

climb to the roof and he entered the office from the opening in the roof and

unlatched the office door from inside. The photographer then entered and

took several  photographs of the dead body of deceased and all  the other

articles found inside the room. It was found that a chair had been kept on a

table under the spot and the tin roof had been bent and the photograph of

this was also taken. After photographing the room, the investigating  officer

prepared the panchnama  and seized several articles which were found in the

room.  On  the  same  day,  the  investigating  officer  arrested  accused  No.1

Arun and seized his bloodstained clothes under Panchnama. The arrest cum-

seizure panchnama was produced at the trial  and marked Exhibit-32. The

investigating officer referred accused No.1 Arun for medical examination as

he  found  some  injuries  on  his  person.  The  investigating  officer  then

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collected  the  medical  certificates  of  the  complainant  and  the  present

appellant. As per the medical certificates, the injuries that were found on the

person of the complainant, (PW-11) Bhairu  and A-1 were simple injuries

caused by a hard and blunt substance.  

After  completion  of  investigation,  charge  sheet  was  filed.  As  the

accused persons pleaded innocence trial  was held and 19 witnesses were

examined to further the prosecution version.  PWs 8 and 11 were stated to

be  eye  witnesses  to  the  occurrence.  They  were  two  students  who  were

staying in the hostel of the school. The trial Court found the evidence to be

cogent, credible and recorded the conviction so far as the present appellant

is concerned. In appeal, it was stated that the appellant had gone unarmed

and alone to the school to persuade the deceased to put an end to the dispute

between them. When the  appellant  made his  request  to  the deceased,  he

abused him in filthy language and made obscene suggestion. He also started

pushing the appellant outside the room. When he saw that the appellant was

not going out  of the room, the deceased picked up a hammer which was

lying in the room and gave blows on the head of the appellant who tried to

save himself. The deceased gave two more blows on the head and when the

appellant apprehended that he was likely to be killed he gave some more

blows.  Appellant  tried  to  save  himself  and  when  he  was  trying  to  save

himself and when he was in a fit of uncontrollable anger, in that process the

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deceased and the appellant might have been injured.  It is also stated that the

stand regarding throwing of chilly powder was false and the chilly powder

was subsequently planted at the scene of the offence.  The State’s stand was

that in view of accepted position regarding the presence of the accused and

the role described by PWs 8, 10 and 11 there is no scope for interference

with  the  well  reasoned  judgment  of  the  trial  Court.   The  High  Court

accepted the stand and dismissed the appeal.  

4. In support of the appeal, learned counsel for the appellant submitted

that there was an earlier FIR which was suppressed and after deliberation

report was lodged which was treated as a FIR. It was the deceased who was

the aggressor and the appellant was exercising his right of private defence.

According to him, the deceased gave four blows on his head and, therefore,

the judgment of the High Court is clearly unsustainable.

11. In response, learned counsel for the respondent-State submitted that

the FIR was promptly lodged. The injuries stated to have been sustained by

the accused are simple in nature. The evidence of PWs 8, 10 and 11 is clear,

cogent and credible and, therefore, there is no scope for any interference.  

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12. 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

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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

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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.”

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.

13. 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

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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,

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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.

14. 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,  to  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

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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.

15. 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 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).

16. 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

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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.

17. 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

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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.             

18. 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.”

19. The  right  of  private  defence  is  essentially  a  defensive  right

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

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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  defense,  not  of  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 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.         

20. The  above  position  was  highlighted  in  James  Martin v.  State  of

Kerala (2004 (2) SCC 203).

21. When  the  factual  scenario  is  examined  in  the  background  of  the

principles  set  out  above,  the  inevitable  conclusion  is  that  the  appeal  is

without merit, deserves dismissal which we direct.  

     ………………………………

….J. (Dr. ARIJIT PASAYAT)

………………………………….J.

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(ASOK KUMAR GANGULY) New Delhi, March 16, 2009

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