REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 544 OF 2001

Dinesh Singh …Appellant

Versus

State of U.P. …Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge  in  this  appeal  is  to  the  judgment  of  the

Allahabad High Court allowing the Government Appeal.  In the

said  appeal  challenge  was  to  the  judgment  of  learned

Additional  Sessions  Judge,  Karvi,  directing  acquittal  of  the

respondents-the  accused  1  to  10  of  the  charged  offences

relatable  to Sections 147,148,302, 325, 323 and 149 of the

Indian Penal Code, 1860 (in short the ‘IPC’).  The High Court

while  upholding  the  acquittal  of  the  rest  of  the  accused

persons found the evidence cogent and credible so far as the

present  appellant  is  concerned  and  directed  conviction  for

offence punishable under Section 304 Part II IPC.

2. Learned  counsel  for  the  appellant  submitted  that  the

trial court had rightly noticed that the appellant and the co-

accused exercised right of private defence and, therefore, the

High Court could not have held the appellant guilty.  It is also

submitted that when the evidence was found inadequate for

rest of the accused persons, appellant should not have been

convicted.

3. First  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

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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

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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

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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.”

4. The accused need not prove the existence of the right of

private defence beyond reasonable doubt.  It is enough for him

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to  show  as  in  a  civil  case  that  the  preponderance  of

probabilities is in favour of his plea.

5. 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

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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.

6. 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  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.

7. 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).

8. 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

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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

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whether  the  plea  is  acceptable.  It  is  essentially,  as  noted

above, a finding of fact.

9. 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.

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10. 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.”

11. 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  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

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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.         

12. The above position was highlighted in V. Subramani and

Anr. v. State of Tamil Nadu (2005 (10) SCC 358).

13. So  far  as  the  claim  of  right  of  private  defence  is

concerned, it is to be noted that the High Court analysed the

evidence in great detail and observed that the appellant’s case

stood on different footing.  He is alleged to have fired upon,

Juguntha,  who  sustained  fire-arm injury  on  his  chest  and

died on the spot.  No person on the prosecution side is shown

to be armed with any weapon. Therefore, there could not be

any reasonable apprehension of death or of grievous hurt at

their hands nor the case attract Section 103 IPC. The fact that

appellant  fired  from  his  gun  on  Jugntha,  is  established

beyond  doubt  from  the  evidence  on  record.  P.W.1,  Hari

Mohan,  who  is  wholly  an  independent  witness,  has  cate-

gorically stated in his statement before the trial court that it

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was accused Dinesh Singh who fired upon Juguntha, which

struck on his chest and he fell down and  died. The incident

occurred  in  broad-day  light.  Hari Mohan himself  sustained

injuries  and,  therefore,  his  presence  at  the  scene  of

occurrence cannot be doubted. This witness had no animosity

against  the  appellant  nor  had  any  affinity  with  the

complainant  party.  His  statement is  also  corroborated  by

medical  evidence  brought  on record.  Anurudh, P.W.2 is the

other witness to depose that it was the accused-respondent

Dinesh Singh who fired  from his gun upon Juguntha.  This

fact  is  also  mentioned  in the  first  information report  which

was lodged promptly.  Dr. M.L. Verma, PW 6 who conducted

autopsy on the dead body of Juguntha found

only one gutter shaped gunshot wound on the deceased and

has stated that injury sustained was the cause of death and

the same was sufficient to cause death in the ordinary course

of nature. He also categorically stated

that the said injury could not be caused by a hand granade.

We have also examined the post-mortem report and have no

doubt in our mind that the said injury was a gun shot injury

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in as much as the pallets entered on the right lateral side of

chest  and  then  made  exit  from  medial  left  side  chest

fracturing  fourth,  fifth  ribs  with  sternum  into  pieces  and

causing lacerations in both the lungs and heart. The direction

of wound was also from right to left. The evidence on record

thus leaves no room for doubt that Juguntha died due to a

gunshot  injury  and  the  same  was  caused  by  accused-

appellant Dinesh Singh.

14. So far as the effect of acquittal on the self same evidence

is concerned,  it is the duty of Court to separate grain from

chaff.  Falsity  of  particular  material  witness  or  material

particular would not ruin it from the beginning to end. The

maxim “falsus in uno falsus in omnibus” has no application in

India and the witnesses cannot be branded as liar. The maxim

“falsus  in  uno falsus  in  omnibus”  has not  received  general

acceptance nor has this maxim come to occupy the status of

rule of law. It is merely a rule of caution. All that it amounts

to, is that in such cases testimony may be disregarded, and

not that it must be disregarded. The doctrine merely involves

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the question of weight of evidence which a Court may apply in

a given set of circumstances, but it is not what may be called

‘a mandatory rule of evidence’. (See  Nisar Alli v.  The State of

Uttar Pradesh (AIR 1957 SC 366).

15. The doctrine is a dangerous one especially in India for if

a whole body of the testimony were to be rejected,  because

witness was evidently speaking an untruth in some aspect, it

is to be feared that administration of criminal justice would

come  to  a  dead-stop.  Witnesses  just  cannot  help  in  giving

embroidery to a story, however, true in the main. Therefore, it

has  to  be  appraised  in  each  case  as  to  what  extent  the

evidence is worthy of acceptance, and merely because in some

respects the Court considers the same to be insufficient  for

placing  reliance  on  the  testimony  of  a  witness,  it  does  not

necessarily  follow  as  a  matter  of  law  that  it  must  be

disregarded  in  all  respects  as  well.  The  evidence  has to be

shifted with care. The aforesaid dictum is not a sound rule for

the  reason  that  one  hardly  comes  across  a  witness  whose

evidence does not contain a grain of untruth or at any rate

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exaggeration, embroideries or embellishment. (See Sohrab s/o

Beli Nayata and Anr. v. The State of Madhya Pradesh (1972 (3)

SCC 751) and Ugar Ahir and Ors. v. The State of Bihar  (AIR

1965 SC 277). An attempt has to be made to, as noted above,

in terms of felicitous metaphor, separate grain from the chaff,

truth from falsehood. Where it is not feasible to separate truth

from falsehood, because grain and chaff are inextricably mixed

up, and in the process of separation an absolutely new case

has  to  be  reconstructed  by  divorcing  essential  details

presented by the prosecution completely from the context and

the  background  against  which  they  are  made,  the  only

available course to be made is to discard the evidence in toto.

(See Zwinglee Ariel v. State of  Madhya Pradesh  (AIR 1954 SC

15) and  Balaka Singh and Ors. v.  The State of Punjab. (AIR

1975  SC  1962).  As  observed  by  this  Court  in  State  of

Rajasthan v. Smt. Kalki and Anr. (AIR 1981 SC 1390), normal

discrepancies in evidence are those which are due to normal

errors of observation, normal errors of memory due to lapse of

time, due to mental disposition such as shock and horror at

the time of  occurrence  and those  are  always there however

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honest and truthful a witness may be. Material discrepancies

are those which are not normal, and not expected of a normal

person.  Courts  have  to  label  the  category  to  which  a

discrepancy may be categorized. While normal discrepancies

do  not  corrode  the  credibility  of  a  party’s  case,  material

discrepancies do so. These aspects were highlighted recently

in Krishna Mochi and Ors. v.  State of Bihar etc. (JT 2002 (4)

SC 186), Gangadhar Behera and Ors. v. State of Orissa (2002

(7) Supreme 276) and Rizan and Anr. v. State of Chhattisgarh

(2003 (2) SCC 661).  

16. The High Court has also analysed in detail as to how the

case of appellant stood on a different footing and has directed

his conviction, though in the case of co-accused, the evidence

was  found  to  be  inadequate.   We  find  no  infirmity  in  the

conclusions  arrived  at  by  the  High  Court  to  warrant

interference.  Appeal fails, hence dismissed.                   

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

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

New Delhi, August 4, 2008

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