REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 672  OF 2005   

Hanumantappa Bhimappa ..Appellants  Dalavai & Anr.

versus

State of Karnataka ..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

Karnataka  High  Court  upholding  the  convictions  of  the  appellants  for

offence punishable under Section 302 of the Indian Penal Code, 1860 (in

short the ‘IPC’).  The appellant No.1 was additionally convicted for offence

punishable under Section 326 IPC.

2. Prosecution version in a nutshell are as follows:

The  accused  nos.1  to  3  -  the  deceased  and  injured  belonged  to

Salahalli Village.  There is a tea shop of the accused No.1 situated outside

the village, by the side of the compound of which a public road is situated,

some jail hedges have grown in the said land of accused No.1 by the other

side of  the road,  which  have over  grown obstructing  to  some extent  the

public path. With regard to the inconvenience caused to the passers-by and

the persons taking vehicles  like tractor,  the complainant  - Irappa Aijappa

Kuri  (P.W.5)  often  complained  to  the  accused  No.  l  to  cut  the  excess

hedges, to which the accused No.1 paid no heed. On 1.2.1995, while coming

home, the complainant asked the accused No.l to cut the excess growth of

hedge for  which  the  accused  No.1  became angry and  threatened  that  he

would  see  the  person  who dared  to  cut  the  hedges  and  also  abused  the

complainant.  The  next  day  evening,  the  complainant's  younger  brother  -

Mahadev (first deceased) came from Gokak and when the complainant and

his  family  members  told  about  the  incident  that  had  taken  place  on  the

previous  day,  Mahadev  immediately  expressed  his  desire  to  go  to  the

accused No.1 and confront  him about this.  Then immediately, he left  the

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place followed by the complainant (P.W.5), complainant's wife - Lalithawa

Kuri  (P.W.18),  complainant's  elder  brother  -  Basappa  Sidnal  (the  second

deceased),  complainant's  sister  -  Suit  Yallawwa  Dundappa  Shidnal

(P.W.19),  complainant's  brother  -  Siddappa  Ajjappa  Kuri  (P.W.20),

complainants  sisters-in-law -  Renuka Kuri  (P.  W. 24)  and Smt. Anasuya

Sidnal (P.W.26). When Mahadev questioned the accused No. 1 about his

behaviour with the complainant the previous day, the accused No. l became

angry  about  the  audacity  of  Mahadev  in  coming  to  his  hotel  about  that

matter and to question him; and challenging Mahadev, he went inside the

hotel, brought a crow-bar and by that instrument gave a blow on the head of

Mahadev. In the meantime, the accused No.1's son - Vittal (accused No.2)

brought a stick and another son-Maruti (accused No.3) brought an iron rod

saying that these people would not be allowed to go, and started assaulting

them. The accused  No-3 assaulted  Basappa by means  of  an iron  rod on

account of which Basappa started to bleed. The accused No.1 gave a blow

on the complainant's wife Lalithavva by means of the crow bar on account

of which she fell down and when he attempted to give a blow by means of

that crow-bar on the complainant, the complainant avoided it but the blow

fell  on his  left  hand and he sustained injury. The accused No.2 attacked

P.W.18 by means of  a stick.  In the meantime, the people assembled and

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saved these persons. But, by that time Mahadev and Basappa had sustained

grievous  injuries.  The  injured  were  taken  to  Ramadurga  in  the  jeep  of

Prakash  (P.W.25).  The  doctor  at  Ramadurga  examined  Mahadev  and

pronounced him dead. For further treatment, Basappa and Lalithavva were

taken to Belgaum hospital where Basappa died later. In the meantime, the

police  had  received  information  in  Kattakol  Police  Station,  which  had

jurisdiction  over  the  area  and  the.  Sub-Inspector  of  Police  went  to

Ramadurga with a Police Constable and took the complaint, on the basis of

which a case was registered and investigation was taken up. The accused

were not available. They were traced on 9.2. 1995 and were arrested and

were  produced  before  the  learned  Magistrate.  They  were  remanded  to

judicial custody. After investigation, the Police filed a charge sheet against

the accused.

The accused pleaded not guilty to the charges and claimed to be tried.

The prosecution examined in all 30 witnesses out of whom PWs. 5,18,19,20

to  26  are  eye  witnesses.   The  accused  No.1  advanced  a  theory  of  self

defence contending that the injured persons and the deceased persons had

come to  his  hotel  armed with  deadly weapons  challenging when he was

alone in the hotel and challenging him they attempted to assault him.  He 4

contended when he ducked to avoid a blow, it fell on the head of the person,

who was holding him and in consequence that person sustained injuries and

that in the meantime, he managed to snatch one of the weapons held by the

assailants and in self defence, a wide hit was given by him to the assailants

and thereafter he escaped from the blows.  It was his contention that he was

not responsible for any injuries found on the deceased and the injured.

4. The trial  court  disbelieved the plea of right of private defence and

held the appellant guilty as aforestated.

5. In appeal the High Court upheld the conviction discarding the stand

of the appellant that this was a case of right of private defence.

6. In support of the appeal it was submitted that this is a case where the

right of private defence is clearly applicable, and prosecution version is not

believable. Learned  counsel  for  the  respondent-State  on  the  other  hand

supported the judgment.

7. 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 5

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

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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:

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“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.”

8. 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.

9. 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

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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

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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.

10. 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 destroyed

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

private defence.

11. 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),in  Sekar @Raja Sekharan v. State represented

by Inspector of Police, Tamil Nadu [2002 (7) Supreme 124] and in Ananta

Deb Singha Mahapatra & Ors. v. State of W.B. [2007 (13) SCC 374].  

12. It is to be noted that there were a large number of eye witnesses who

also had suffered injuries.  PWs. 5,8,19,22 and 26 are such witnesses whose

version is clear, cogent and credible and there is no reason to discard their

version.  Trial  court  and  the  High  Court  have  rightly  relied  upon  their

evidence.  Additionally when the factual scenario is tested on the touchstone

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of legal  principles  relating to right of private defence are concerned it  is

clear that the plea is without substance.  Above being the position present

appeal is sans merit, deserves dismissal, which we direct.

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

……..…….............................J. (ASOK KUAMR GANGULY)

New Delhi, March 31, 2009  

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