REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO.                    OF 2009 (Arising out of S.L.P. (Crl.) No.6234 of 2008)  

Sadhu Singh  ..Appellant  

versus

State of Punjab ..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

Punjab and Haryana High Court upholding the conviction of the appellant

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

short the ‘IPC’) and Section 27 of the Arms Act, 1959 (in short ‘Arms Act’).

Three  persons  faced  trial  for  commission  of  murder  of  Jagdev  Singh

(hereinafter referred to as the ‘deceased’). Sadhu Singh, Wazir Singh and

Harjinder Singh  faced trial for alleged commission of offences punishable

under Sections 302, 323 read with Section 34 IPC and Section 27 of the

Arms Act.  The  trial  Court  held  that  the  appellant  was  guilty  of  offence

punishable  under  Section  302  IPC  while  the  other  two  were  guilty  of

offence  punishable  under  Section  323  IPC.  Additionally,  appellant  was

found guilty of offence punishable under Section 27 of the Arms Act.  

3. Prosecution version in a nutshell is as follows:

On November 12, 1996 Bachittar Singh (PW-3) along with his sons

Sukhdev  Singh  (PW)  and  Jagdev  Singh  (hereinafter  referred  to  as

‘deceased’) were returning to their village at about 9.00 p.m. on a tractor

which was being driven by Bachittar Singh while his two sons were sitting

on it and when they were about 5-7 Karams short of the house of accused

Sadhu  Singh  they  saw  the  three  accused  standing  in  Sadhu  Singh's

doorway. At that time Sadhu Singh was armed with a 12 bore SBBL gun

while Wazir Singh and Harjinder Singh alias Pappa were empty handed.

Wazir singh and Pappa walked upto the tractor and stopped it. Thereafter,

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Wazir  Singh  raised  a  lalkara  that  Bachittar  Singh  and  others  should  be

taught a lesson for cultivating the land coming in their father's share and

thereupon Sadhu Singh fired a shot at the deceased and Pappa Singh started

throwing bricks. Bachittar Singh and others raised alarm and the accused

retreated to their house. When Bachittar Singh and Sukhdev Singh came

down from the tractor they saw that Jagdev Singh had died. Bachittar Singh

left Sukhdev Singh near the dead body and drove the tractor to his house

from where he collected Baljinder Singh (brother-in-law of the deceased)

and met S.I. Satwant Singh S.H.0., Police Station, Saddar (P.W.6), near the

canal bridge within Bir Behman and narrated the occurrence to S.I. Satwant

Singh  who  recorded  his  statement  Ex.  P.  D.  This  statement  was  sent

through Constable Chhinder Pal to Police Station Saddar for registration of

the case after recording proceedings Ex. P D/2) by M.H. C. Sikandar Singh.

The Investigator  took up investigation.   The doctor  found various

injuries on the body of the deceased.  

After  completion  of  investigation  charge  sheet  was  filed.  As  the

accused persons pleaded innocence,  trial  was held.  In order to further its

version the trial Court primarily relied on the evidence of PWs 1, 3 and 4. It

did not accept the plea of right of private defence as set up by the accused

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persons.  In appeal, the stand before the  trial Court was re-iterated  but the

High Court found that there was no question of exercise of right of private

defence.

4. Learned counsel for the appellant submitted that the trial Court has

relied primarily on the statement recorded under Section 313 of Code of

Criminal Procedure, 1973 (in short the ‘Code’). The factual scenario shows

that the complainant was returning after ploughing the land in front of the

house  of  the  accused  but  correct  genesis  of  the  situation   has  not  been

brought on record. The deceased was about to hit the accused with a spear.

The trial Court and the High Court proceeded on the basis as if the accused

had  time  to  go  into  his  house  and  on  that  he  picked  up  a  gun.  It  was

nobody’s case that  the  accused went  inside and brought a gun.  The trial

Court  makes out  a third case.  It  was pointed  out  that  the claim that  the

accused persons came and attacked the deceased and PWs is not established.

In fact the trial Court and the High Court have not recorded any positive

finding regarding the deceased and the PWs travelling in  a tractor  as on

bullet marks were found on the tractor.  

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5. Learned counsel for the respondent-State on the other hand supported

the judgment of the High Court.  

6. 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  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.  

7. 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 rout,

there can be no occasion to exercise the right of private defence.  

8. The above position was highlighted in Rizan and Another vs. State of

Chhattisgarh, through the Chief Secretary, Govt.  of  Chhattisgarh,  Raipur,

Chhatttisgarh (2003 (2) SCC 661),  Sucha Singh and Anr. v. State of Punjab

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(2003 (7) SCC 643) and Bihari Rai v. State of Bihar (SLP (Crl.) No.862 of

2007 disposed of on 26th September, 2008)

9. When the factual scenario is examined it becomes crystal clear that

even if  it  is  accepted for the sake of arguments that the accused persons

were at some point of time exercising the right of private defence it was

exceeded.  That  being  so,  the  plea  regarding  exercise  of  right  of  private

defence cannot be sustained. However, the appropriate conviction would be

under  Section  304  Part  I  IPC.  The  conviction  is  altered  accordingly.

Custodial sentence of 10 years would meet the ends of justice.  

10. The appeal is allowed to the aforesaid extent.      

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

.……......................................J. (ASOK KUMAR GANGULY)

New Delhi, March 31, 2009  

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