REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO. 1536  OF 2008 (Arising out of S.L.P. (Crl.) No.862 of 2007)  

Bihari Rai  ..Appellant  

versus

State of Bihar (Now Jharkhand) ..Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

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

Bench  of  the  Jharkhand  High  Court  partially  allowing  the

appeal of the appellant, while directing acquittal of co-accused

persons.   The  appellant  was  convicted  for  an  offence

punishable  under  Section  302  read  with  Section  34  of  the

Indian  Penal  Code,  1860  (in  short  ‘IPC’)  by  learned  Vth

Additional Sessions Judge, Dumka,  in Sessions Case No.156

of 1980/21 of 1985.  The High Court altered it to Section 304

Part I IPC, and sentence of seven years was imposed.   

3. The prosecution version in a nutshell is as follows:

Ramfali  Rai (PW.1)  is the son of Badri  Rai (hereinafter

referred  to  as  the  ‘deceased’).  There  was  a  long  standing

dispute pending between the appellant’s  and the deceased’s

family.  Proceedings were initiated under Section 145 of the

Code  of  Criminal  Procedure,  1973  (in  short  ‘Cr.P.C.’)  and

several  suits  were  also  filed.  The  dispute  between  the  two

families was pending from the year 1952 and according to the

prosecution,  it  is  said to  be  the  motive  for  the unfortunate

occurrence.

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On 28.6.1978, the deceased left for his field accompanied

by his servant Mantu Rai. Ramfali Rai (PW.1) stayed at home

and at about 9.00 a.m., he heard shouts, “Maro Maro” and

came out of the house and started running towards the north

from  where  the  shouts  were  emanating.   Reaching  some

distance, he found his father, Badri Rai, being chased by the

accused-appellant Bihari Rai and the other two accused. Tulsi

Rai and Ghutru Rai, were also found at that place.  Accused

Bihari Rai, inflicted three blows – two on the head and one on

the  hand  of  the  deceased-Badri  Rai,  and  the  deceased  fell

down  and  the  accused  2  and  3  also  gave  lathi  blows  and

thereafter all the three accused left the place.  The occurrence

was witnessed by Ramfali Rai (PW.1), Horil Rai (PW.2), Kuwa

Rai (PW.5), Gopi Rai (PW.6) and Jarman Rai (PW. 7).  In the

meantime, information was received at Jama Police Station by

Sudhir  Kumar  Sinha,  Sub-Inspector,  that  some  occurrence

had  taken  place  in  the  village  –  Barudih.   The  said  Sub-

Inspector, after making an entry in the station diary, left for

the  scene  of  occurrence  and  reached  there,  where  the

fardbeyan, Ext. 5, given by PW.1, was recorded at 3.00 p.m.

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The  said  fardbeyan  was  registered  as  a  complaint  and  the

printed first information report of the said complaint is Ext.6.

Ext.1  is  the  signature  of  Ramfali  Rai  (PW.1)  in  the  said

complaint, Ext.5.  Investigation was taken up and the inquest

was  conducted,  which  stands  marked  as  Ext.2/2,  during

which witnesses were examined.  After the inquest, the body

was  sent  to  the  hospital  with  a  request  to  the  Doctor  to

conduct  autopsy.  Dr.  Upendra  Prasaad  Sinha  (PW.9),  Civil

Assistant Surgeon, Sadar Hospital,  Dumka, conducted post-

mortem on the body of the deceased, Badri Rai, and he found

the following injuries:

(i) Incised wound 1” x ½” x 1” on outer side of left arm;

(ii) Incised wound 8” x 1” x 4” cutting the posterior left

side of the scalp bone including the brain substance

with  a  large  haemorrhage  (in  the  post  mortem

report  the  expression  “haematoma”  and  not

haemorrhage  as has been  deposed  by the  Doctor

inside the brain substance;   

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(iii) Incised wound 6” x 1” x 31/2” cutting the posterior

right  side  of  the  scalp  bone  including  the  brain

substance with a large haemorrhage (here also the

expression  in  the  post  mortem  report  is

haematoma) inside the brain substance;   

The  doctor  issued  the  post  mortem certificate,  Ext.  4,

with his opinion that injuries (ii) and (iii) found on the body

are sufficient in the ordinary course of nature to cause death

and that death must have occurred within 36 hours.

4. After  completion of  investigation,  the charge sheet  was

filed against the accused persons.   

5. The Trial  Court  placed reliance  on the evidence  of  the

eye-witnesses PWs. 1, 2, 5, 6 and 7 and found the appellant

and the co-accused persons guilty. In appeal, the High Court

found  that  Exception  4  to  Section  300  IPC  applied  and

accordingly  directed  conviction  of  the  appellant  in  terms of

Section 304 Part-I IPC and sentenced him to undergo rigorous

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imprisonment  for  seven  years.   However,  the  co-accused

persons were acquitted.  In appeal before the High Court, the

primary stand was that in the fardbeyan given by PW.1 the

names of PWs. 2, 6 and 7 had not been given.  Additionally, it

was submitted that having accepted that the occurrence took

place in course of sudden quarrel, the trial Court should have

accepted the plea relating to right of private defence.

6. In the judgment the accused persons were described as

A1, A2 and A3.  The present appeal is by A1.

7. The High Court found that the evidence of PW.1 was to

the effect that on hearing the cries of his father he came out of

the  house,  ran  towards  the  place  and  found  the  appellant

inflicting injuries on the deceased.  It was therefore, possible

that he could not have noticed the presence of PWs.2,6 and 7.

However PW 6 has categorically stated about the presence of

all the eye witnesses.  So far as the plea relating to right of

private defence is concerned, it is to be noted that no evidence

in that regard was adduced.  On the contrary, the High Court

referred to the evidence of PWs. 2,6 and 7 to the effect that

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just before the occurrence the accused and the first deceased

had quarreled and thereafter first accused inflicted blows with

an axe, which he had in his hand, on the deceased.  PW 1 was

not present when the quarrel commenced and he came to the

scene of occurrence on hearing the cries of his father and saw

the  appellant  inflicting  blows  on  the  deceased.   In  that

background Exception 4 to Section 300 was applied.

8. In  support  of  the  appeal,  the  stands  taken  before  the

High Court have  been reiterated by learned counsel  for  the

appellant.  Learned counsel for the state on the other hand

supported the judgment of the High Court.

9. It needs to be noted that in addition to the stand taken

before  the  High  Court  learned  counsel  for  the  appellant

submitted  that the I.O.  had not examined the present  case

and  first  information  regarding  the  incident  which  was

recorded in the station entry has also not been produced in

the Court.  It is also pleaded that since right of private defence

was exercised conviction cannot be recorded.

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10. So far as the stand regarding non-mention of the name of

PWs 2,6 and 7 are concerned, it is to be noted that as rightly

observed by the trial court and the High Court on hearing the

cries of his father the deceased PW 1 was rushing towards the

place of occurrence.  Obviously, the focus was on what was

happening  to  his  father.   In  any  event,  inspite  of  incisive

cross-examination  nothing  fragile  was  surfaced  in  his

evidence.

11. It  has  also  been  established  by  prosecution  that  the

station diary entry related to some vague information about

disturbance in the village , that cannot take place of the FIR.

12. So  far  as  the  non-examination  of  one  of  the  I.O.  is

concerned, it is to be noted that the officer in question had

only conducted the inquest.  The inquest report was exhibited

without  any  objection  and  there  was  no  challenge  to  the

correctness of the report.  That being so, non-examination of

the  officer  in  question  does  not  in  any  way  corrode  the

credibility of the prosecution version.

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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 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 creditworthy, 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

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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

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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 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.  

15. The above position was highlighted in Rizan and Another

vs. State of Chhattisgarh, through the Chief Secretary, Govt. of

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Chhattisgarh, Raipur, Chhatttisgarh (2003 (2) SCC 661), and

Sucha Singh and Anr. v. State of Punjab (2003 (7) SCC 643).

16. Merely  because  there  was  a  quarrel  and  some  of  the

accused  persons  sustained  injuries,  that  does  not  confer  a

right  of  private  defence  extending  to  the  extent  of  causing

death as in this case. Though such right cannot be weighed in

golden  scales,  it  has  to  be  established  that  the  accused

persons were under such grave apprehension about the safety

of their life  and property  that retaliation to the extent done

was absolutely necessary. No evidence much less cogent and

credible  was  adduced  in  this  regard.  The  right  of  private

defence as claimed by the accused persons have been rightly

discarded.   

17. The High Court has referred to the evidence of PWs. 2,6

and 7 to conclude that just before the arrival of PW 1 at the

scene of occurrence there was a quarrel between the deceased

and the accused.  In that view of the matter, the High Court

accepted the plea that the occurrence took place in the course

of sudden quarrel.

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18. As rightly observed by the trial court and the High Court

                            there was no question of exercise of

right of private defence as claimed by the appellant.

19. The  accused  has been  rightly  convicted  under  Section

304(1)  IPC.   Custodial  sentence,  as  imposed,  also  does  not

appear to be inappropriate in any manner.

20. The appeal deserves dismissal, which we direct.

……................................J. (Dr. ARIJIT PASAYAT)

.……...............................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, September 26, 2008  

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