REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1036  OF 2008 (Arising out of SLP (Crl.) No. 1029 of 2007)

Genda Singh and Ors. …Appellants

Versus

State of U.P. …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 Allahabad High Court upholding the conviction

of the appellants for offences punishable  under Section 302

read with Section 34 and Section 323 read with Section 34 of

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

Additional  Sessions  Judge,  Bijnor  had  found  the  accused

appellants guilty and had sentenced each to undergo RI for

life  for  the  first  offence  and  six  months’  RI  for  the  second

offence. The sentences were directed to run concurrently.  One

Leela Singh who faced trial alongwith the appellants was given

the benefit of doubt and was acquitted of the charges.  

3. Background facts in a nutshell are as follows:

The incident is alleged to have taken place on 17th June,

1980 at about 6.00 p.m. at Village Bilai, which is also 4 Kms.

at a distance from the  Police Station Haldaur, District Bijnor.

The report of the incident was lodged at Police Station Haldaur

on  that  very  day  at  8.30  p.m.  The  allegations  of  the

prosecution as would appear from the written report (Exhibit

Ka-8)  are  that  a  day  before  the  incident  sometime  in  the

evening  boundary  of  the  fields  of  the  complainant  was

damaged by accused Genda Singh and Mahavir Singh and for

it some altercations had also taken place. On the fateful day

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(17th June  1980)  in  the  morning  hours,  the  complainant

Kendra  Pal  Singh  alongwith  his  father  Virendra  Singh  and

uncle Hari Raj Singh went to plough their fields. They were

just  repairing  the  boundary  at  that  place  where  it  was

damaged by accused Genda Singh and others. It was about

7.00  a.m.  Genda  Singh  armed  with  Tabal,  Mahavir  Singh

armed with axe, Thamman Singh armed with Lathi and Leela

Singh armed with iron pipe came at that place and exhorted

that the boundary wall would not be disturbed from the place

where it was set up. Some quarrel had taken place on it and

they  gave  blows  with their  weapons  to  Hari  Raj  Singh and

Virendra  Singh.  On  hearing  the  hue  and  cry  made  by  the

complainant, Surendra Singh, Prakash Singh, Balbeer Singh,

Naubahar Singh and other persons turned up at the site and

rescued  the  complainant  and  other  persons.  Father  of  the

complainant  Virendra  Singh in  unconscious  state  and Hari

Raj Singh in a precarious condition were brought to the Police

Station where report was lodged. The report was registered at

Crime No.130 of 1980 at the Police Station Haldaur for the

offences under Sections 323, 324 and 308 IPC and its entry

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was  also  made  in  the  G.D.  (Exhibit  Ka-12).  Sub  Inspector

Vipin  Pal  Singh and other  Police  Constables  namely  Anwar

Khan, Mahendra Singh and, Shaukat Khan were sent from the

Police  Station  to  the  hospital  with  necessary  papers  for

drawing inquest report vide exhibit ka-12 P.W. B.S.Rana S.I.,

(P.W.8) took up the investigation of the case and prepared the

inquest  report.  Dr.  Gurcharan Singh (P.W.2)  conducted  the

autopsy at the dead body of Hari Raj Singh on that very day at

4.30  P.M.  and prepared  the  report  (Exhibit  Ka-6).  Virendra

Singh was brought to the Primary Health Centre at 8.00 a.m.

on 17th June, 1980 by Constable Tej Pal Singh. He died on the

same very day.  It was opined by the doctor who conducted

the autopsy of Hari Raj Singh and Virendra Singh that their

deaths had taken place on account of shock and hemorrhage.

It was also opined that the ante mortem injuries sustained by

the victims might have been caused on that very day i.e. 17th

June, 1980.

Injuries  of PW-5 Kendra Pal  Singh were also medically

examined  at  Primary  Health  Centre,  Haldaur  on 18th June,

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1980  at  9.15  a.m.  (Exh.  Ka-2)  by  PW-1 (Dr.  Chaod Kumar

Singh).

Charge sheet was filed after investigation.  Since accused

persons abjured their guilt, trial was held.

Placing reliance on the evidence of the witnesses, more

particularly,  the  injured  witness  the  trial  Court  found  the

accused  persons  guilty  and  convicted  and  sentenced  as

aforenoted.  The  judgment  of the trial  Court  was questioned

before the High Court in Criminal Appeal No. 2917 of 1980. As

noted above, the High Court dismissed the appeal.  

4. Primary stand of learned counsel for the appellants was

that the High Court should have given the benefit available for

exercising right of private defence. It was submitted that the

evidence  clearly  established  that  the  accused  persons  were

exercising their right of private defence.  

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5. Learned  counsel  for  the  State  on  the  other  hand

supported the judgment of trial Court and the High Court.   

6. 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

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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

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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

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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.

7. 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

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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.

8. Sections 102 and 105, IPC deal with commencement and

continuance  of  the  right  of  private  defence  of  body  and

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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

destroyed or has been put to route, there can be no occasion

to exercise the right of private defence.

9. 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

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Sekharan v.  State  represented  by  Inspector  of  Police,  T.N.

(2002 (8) SCC 354).

10. 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

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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.

11. 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

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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.

12. 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.”

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13. 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

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.         

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

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

15. Factual scenario as noted above clearly goes to show that

though the  appellants  claimed to  be  exercising  the  right  of

private defence, it was exceeded.  That being so, the protection

for exercising the right of private defence cannot be extended

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to  the  appellants.  But  the  appropriate  conviction  would  be

under  Section 304 Part  I  IPC and custodial  sentence  of  10

years in case of each appellant and fine imposed by the trial

Court would meet the ends of justice.  

16. The appeal is allowed to the aforesaid extent.  

……………………………J. (Dr. ARIJIT PASAYAT)

…………….……………..J. (P. SATHASIVAM)

New Delhi, July 9, 2008

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