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CASE NO.: Appeal (crl.)  1636 of 1996

PETITIONER: Laxman Singh                                                     

RESPONDENT: Poonam Singh & Ors.                                              

DATE OF JUDGMENT: 10/09/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

[With Crl. Appeal No.1637 of 1996]

ARIJIT PASAYAT, J.           These appeals are by the informant and the State of Rajasthan  questioning the correctness and legality of judgment of the High Court  of Rajasthan at Jodhpur directing acquittal of the respondents-accused  persons.   

The factual antecedents which the prosecution unfolded during  trial are as follows:-

There was long-standing litigation between Mohan Singh  (hereinafter referred to as ’the deceased’) and his brother and other  relatives on one hand and the accused persons on the other. On  10.6.1984, the fateful day in the morning hours deceased-Mohan Singh and  his brother Bherusingh (PW-2) and other relatives were ploughing the  disputed land.  Accused-respondents Poonam Singh, Harisingh, Devaram,  Gamna and 12 others acquitted by Trial Court told them not to do so.  They asserted that the field belonged to them and they will not allow  the complainant side to plough the field.  For a long time assertions  and counter-assertions went on. Thereafter accused Poonamsingh hit on  the head of Mohansingh with a lavali (kind of stick) and accused-Devaram  hit on his shoulder by a Bewadi (form of stick) due to which, he having  become unconscious fell down. Thereafter accused persons started  assaulting and inflicting injuries. The incident was seen by Godawari  (PW-4), Arjunsingh (PW-16), Geeta (PW-13), Babusingh (PW-21), Bherusingh  (PW-2) and others.  They were also injured being assaulted by the  accused persons. After this first information report was lodged by Bheru  Singh at about 8.30 p.m. and investigation was undertaken. Mohan Singh  was admitted in the Pali Hospital for treatment and subsequently he  breathed his last on 11.6.84 around 11.00 a.m.   

In order to substantiate its version the prosecution examined 34  witnesses. The accused persons pleaded innocence and examined 4  witnesses.  On consideration of evidence on record, the Trial Court came  to hold that the land was in possession of the complainant side, though  revenue records were in favour of the accused-appellants with their  companions. Having held so, it was observed that all the accused were to  be acquitted of the charges under Section 447 of the Indian Penal Code,  1860 (in short ’IPC’). It was held that though right of private defence  was available, it was exceeded.  Even though the accused persons had  sustained injuries, yet the maximum they could have done was to exercise  the right of private defence by inflicting simple injuries. Ultimately,  it was held that present respondents were guilty of offences punishable  under Sections 304 Part-II and 323 IPC for causing death of Mohansingh  and inflicting injuries on Godawari (PW-4).  The conviction and

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sentences were challenged by the four respondents-accused. The State did  not challenge the acquittal or the alteration of conviction.  Similar  was the position vis-Ã -vis the informant.

The High Court by the impugned judgment held that the case was one  where the accused persons had exercised the right of private defence and  had not exceeded it.  The fact that the accused persons received  injuries was considered to be of great significance. The acquittal in  respect of offences relatable to Section 447 was also considered to be  of vital importance in deciding the question about the right of private  defence. Accordingly it was held that the accused persons were entitled  to exercise the right available in respect of private defence. Both the  State and the informant have questioned the High Court’s conclusions.   

In support of the appeals, learned counsel for the State and the  informant submitted that the parameters of right of private defence as  provided in IPC have been completely lost sight of by the High Court. It  was, therefore, submitted that the High Court was not justified in  directing acquittal.  In addition, learned counsel for the informant  submitted that though the Trial Court appears to have observed that the  right of private defence was available to the accused persons, yet it  was contrary to the findings recorded about the complainants having  possession of the disputed land. In view of these findings, the  observations made by the Trial Court, can be held to have been rendered  by assuming about the possession by the accused persons.  Responding to  the aforesaid pleas, learned counsel for the accused-respondents has  submitted that the possession of the accused persons has been  established. It has been categorically recorded that the revenue records  stand in the name of accused persons. This conclusion is reinforced by  the acquittal in relation to offence punishable under Section 447 IPC.  The accused persons had sustained injuries and, therefore, the High  Court was justified in holding that the right of private defence had not  been exercised in excess of the permitted limits.   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 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 of 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  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

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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 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.

       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  probabilis 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, 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

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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.

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

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).

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 moment, 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 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 whether the plea is acceptable.  It is  essentially a finding of fact. Though acquittal in respect of offence  punishable under Section 447 IPC is not always determinative of the  question whether right of private defence has been exceeded, in a given  case the same assumes importance as in the present case. It has been  significantly noted by both the Courts below that the attacks were not  premeditated.  On the contrary, for several hours, the parties were  discussing their respective stands (may be with some amount of verbal  aggression), and that aspect has indelible importance while assessing  the basic issue regarding exercise of the right of private defence.    

In the background of legal and factual position indicated above,  the appeals are without any merit and deserve dismissal, which we  direct.