REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 227 OF 2007

SIKANDAR SINGH & ORS. — APPELLANTS

VERSUS

STATE OF BIHAR — RESPONDENT

J U D G M E N T

D.K. JAIN, J.:

1. This  criminal  appeal,  by  special  leave,  arises  out  of  a  common  

judgment and order dated 3rd September 2004, delivered by the High  

Court of Judicature at Patna in three Criminal Appeals No.268, 284 and  

384 of 2001, affirming the judgment and orders dated 7th June 2001 and  

12th June  2001,  passed  by  the  Additional  Sessions  Judge,  Bhojpur,  

convicting  and  sentencing  the  present  five  appellants  for  various  

offences.

2. In all, eight persons, namely, Rajeshwar Singh @ Kamta Singh, Nagina  

Singh, Sheo Jee Singh @ Akshay Singh, Awadhesh Singh, Sikandar

Singh,  Harendra  Singh,  Shankar  Singh  @ Sheo  Shankar  Singh  and  

Besh  Lal  Singh  @  Bansh  Lal  Singh  were  put  on  trial  for  having  

committed the murder of  Upendra Singh. Two of the accused, namely,  

Nagina Singh and Awadhesh Singh died during the course of the trial  

and  were  thus,  dropped.  The  learned  Additional  Sessions  Judge  

convicted accused Rajeshwar Singh under Sections 302 and 307 of the  

Indian Penal Code, 1860 (“IPC” for short) as well as under Section 27  

of  the  Arms  Act,  1959  and  sentenced  him  to  undergo  rigorous  

imprisonment for life under Section 302; rigorous imprisonment for ten  

years under Section 307 IPC and rigorous imprisonment for three years  

under Section 27 of the Arms Act.  Accused Sheo Jee Singh @ Akshay  

Singh,  Sikandar  Singh,  Harendra  Singh,  Shankar  Singh  @  Sheo  

Shankar  Singh  were  convicted  and  sentenced  to  undergo  rigorous  

imprisonment  for  life  under  Section  302 read  with  Section  149 and  

rigorous  imprisonment  for  five  years  under  Section  307  read  with  

Section 149 IPC. Accused Sheo Jee Singh was further convicted and  

sentenced  to  undergo  rigorous  imprisonment  for  three  years  under  

Section 27 of the Arms Act. Accused Besh Lal Singh was convicted  

and sentenced to undergo rigorous imprisonment for two years under  

Section  148  IPC  and  Sikandar  Singh,  Shankar  Singh  and  Harendra  

Singh  were  also  convicted  and  sentenced  to  undergo  rigorous  

imprisonment  for  six  months  each  under  Section  147  IPC.  The  

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sentences awarded to all the accused were to run concurrently. All the  

six convicts preferred the afore-noted three appeals. As stated above, by  

the impugned judgment, the High Court has dismissed all the appeals.  

Being aggrieved, Sikandar Singh, Harendra Singh, Shankar Singh, Sheo  

Jee  Singh and  Besh  Lal  Singh  have  preferred  this  appeal.   Convict  

Rajeshwar  Singh  seems  to  have  accepted  the  verdict  of  the  courts  

below.

3. Shorn  of  unnecessary  details,  the  case  of  the  prosecution  may  be  

summarized as follows:

There was a piece of land in front of the cattle shed of the deceased  

Upendra Singh where his cattle used to graze. There was dispute between  

the parties over the land and a title suit in respect thereof was pending. In  

the morning of 23rd December 1987 at about 9-10 a.m., when the deceased  

was cleaning the said land, accused Rajeshwar Singh happened to reach  

there and protested against the act of the deceased, saying that the land  

belonged to him. Ignoring the protest, the deceased continued cleaning the  

land.  Some  heated  arguments  ensued  between  them.  Accused  Nagina  

Singh (since dead), also happened to be at the spot.  Having got infuriated  

and enraged, he exhorted Rajeshwar Singh to eliminate the deceased. Soon  

thereafter Rajeshwar Singh went to his house and came back with a gun.  

He was accompanied by Sheo Jee Singh, Awadhesh Singh (since dead),  

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Sikandar Singh, Harendra Singh, Shankar Singh and Besh Lal Singh, all  

armed with lethal weapons such as spear, farsa and lathi. They exchanged  

hot  and abusive language with the deceased.  Accused Rajeshwar Singh  

fired at the deceased as a result of which he sustained injuries on his chest,  

abdomen, arm and forearm. In the meantime, Rajendra Singh (PW-4) came  

there and tried to save his brother Upendra Singh but he was also shot at by  

Rajeshwar Singh as a result of which he also sustained injuries on his head,  

forehead  and  cheek.  Upendra  Singh,  the  deceased,  succumbed  to  the  

injuries and died instantaneously at the spot.

4. Overhearing the cries, certain villagers including Jagdish Singh (PW-1),  

Samhoot Singh (PW-2), Harihar Singh (PW-3) and Chandrama Singh  

rushed to the spot and witnessed the incident. PW-5-Gupteshwar Singh  

(uncle of the deceased) rushed to the police station and on the basis of  

his statement, a First Information Report (FIR) was recorded at about  

1.00 p.m. on the same day. The autopsy was conducted by Dr.Kamta  

Prasad  Rai  (PW-7)  on  the  body  of  Upendra  Singh.   He  noted  the  

following injuries:

“(i) External injury – blood had come from both nostrils and  mouth,  eyes  were  open  (sic).   41  pellets  injuries  on  chest  scattered all over the chest.  Out of which 15 were penetrating  on left side chest, 9 pellet injuries were on left arm and fore- arm.

(ii)  On internal examination trachea was found full of blood  clots.  Oesophagus (sic) contained blood clots 10 pellets injuries  on left lung causing laceration of lung-tissues and blood vessels  

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inside  it.  2  pellet  injuries  causing laceration  and puncture  of  right lung tissue.  Upper portion of diaphagram on left side was  lacerated and haemorrhaging.  5 punctured wound by pellet on  stomach causing illegible of its contents i.e. un-digested food.  7  pellet injuries on heart puncturing its chamber.  All chambers of  heart  were  empty  and  whole  chest  cavity  was  full  of  blood  clots.”

5. Rajendra Singh (PW-4) was examined by Dr.Vijai Pratap Singh (PW-

6), who found the following injuries on his body:

“Three pin-head size holes over face-one over scalp, one over  fore-head and one over cheek caused by pellet  injuries.   The  injuries  were  caused  by  firearm  within  12  hours  and  were  simple in nature.  In his cross-examination, he deposed that the  patient was referred to him by the police.  No pellets were found  imbedded inside the patient’s wound.  He has further deposed  that such injury can be self-inflicted if one undertakes the risk.”

6. Appellant Sheo Jee Singh was also examined by                   Dr.  

Rameshwar Singh.  Following injuries were found on his person:

“(i) One  swelling  covering  around  the  lower  1/3  of  right  upper arm just  above right  elbow and fracture of underlying  bone.

(ii) Complain of pain on right shoulder.”

7. On completion of the investigation, chargesheet was submitted against  

all the eight afore-mentioned accused.

8. The accused denied their involvement in the murder of Upendra Singh.  

In their defence, it was stated that they had been falsely implicated due  

to  enmity because  of  long drawn land dispute  and a  series  of  other  

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litigations arising therefrom. Their defence was that the suits in respect  

of the disputed land and the proceedings under Section 144 of the Code  

of Criminal Procedure, 1973 (“Cr.P.C.” for short) having been decided  

in their favour, there was no question of their picking up the quarrel  

with the deceased and in fact, it was the complainant party who were  

the aggressors in which Sheo Jee Singh was assaulted for which a case  

was also registered.  A plea of exercise of right of private defence was  

also raised.

9. As  already  stated,  the  trial  court  convicted  all  the  accused  for  the  

offences  noted  above.  The  appeal  of  the  appellants  having  been  

dismissed by the High Court, they are before us in this appeal.

10.Mr. P.S. Misra, learned senior counsel appearing for the appellants has  

assailed the conviction of the appellants mainly on the grounds that: (i)  

there is  no evidence on record to show the meeting of minds of the  

appellants  as to the common object to do away with the deceased. It  

was thus, argued that all the appellants cannot be held guilty for having  

committed offence under Section 302 read with Section 149 IPC. In  

support of the proposition that at the most they could be convicted and  

sentenced for their individual acts, reliance was placed on the decisions  

of this Court in Sukhan Raut & Ors. Vs. State of Bihar1, Basisth Roy  

1 (2001) 10 SCC 284

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& Ors.  Vs. State of Bihar2, Shri Gopal & Anr.  Vs. Subhash & Ors.3  

and  Mohan Singh  Vs. State of Punjab4;  (ii) the plea of self defence  

raised by the appellants has not been properly appreciated by the courts  

below.  It was strenuously urged that admittedly, there was long drawn  

land dispute between closely related parties who were locked in a series  

of  proceedings  and  litigations  in  respect  of  the  land  on  which  the  

incident took place, the issue regarding ownership of the land being still  

pending, the deceased and his brother had no business to clean the land  

and, in fact by their action they instigated the appellants and, therefore,  

even if the version of the prosecution is taken at its face value, that the  

deceased  died  because  of  the  injuries  suffered  in  the  brawl,  the  

complainant party must be held to be the aggressors and whatever the  

appellants did was by way of self defence and (iii) that the prosecution  

has failed to explain the injuries on the person of appellant Sheo Jee  

Singh, which is fatal to the case of the prosecution, particularly when  

the  conviction  of  the  appellants  is  based  on  the  evidence  of  the  

interested witnesses. In support of the proposition that the omission on  

the part of the prosecution to explain the injuries on the person of the  

accused  is  a  very  important  circumstance  from which  the  court  can  

draw  adverse  inference  against  the  prosecution  for  suppressing  the  

relevant information regarding the incident, reliance was placed on the  

2 (2003) 9 SCC 52 3 (2004) 13 SCC 174 4 [1962] Supp. 3 SCR 848

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decisions of this Court in  Lakshmi Singh & Ors.  Vs. State of Bihar5,  

Dashrath Singh Vs. State of U.P.6, Shriram Vs. State of M.P.7, Vijayee  

Singh & Ors. Vs. State of U.P.8 and Bishna & Ors. Vs. State of W.B.9.   

11.As  against  this,  Mr.  Anuj  Prakash,  appearing  for  the  State,  while  

supporting the decisions of the courts below, submitted that the period  

of applicability of order under Section 144 Cr.P.C. having expired, the  

said order had no bearing in so far as the assembly of the accused was  

concerned.  It  was  argued  that  the  evidence  of  PW-4  and  PW-5  is  

unimpeachable,  which prove that  after  altercation with the deceased,  

Rajeshwar  Singh  went  inside  his  house  and  brought  with  him  the  

appellants,  who  all  armed with  deadly  weapons,  came  out  with  the  

common object to do away with the deceased.

12.We shall now proceed to assess each of the contentions seriatim.  The  

first  question  is,  whether  all  the  appellants  can  be  convicted  under  

Section 302 with the aid of Section 149 IPC?

13.Section 149 IPC reads as follows:

“149. Every member of unlawful assembly guilty of offence  committed in prosecution of common object.—If an offence  is  committed  by  any  member  of  an  unlawful  assembly  in  prosecution of the common object of that assembly, or such as  the  members  of  that  assembly  knew  to  be  likely  to  be  committed in prosecution of that object, every person who, at  

5 (1976) 4 SCC 394 6 (2004) 7 SCC 408 7 (2004) 9 SCC 292 8 (1990) 3 SCC 190 9 (2005) 12 SCC 657

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the time of the committing of that offence, is a member of the  same assembly, is guilty of that offence.”

14.The provision has essentially two ingredients viz. (i) the commission of  

an  offence  by  any  member  of  an  unlawful  assembly  and  (ii)  such  

offence must be committed in prosecution of the common object of the  

assembly or must be such as the members of that assembly knew to be  

likely to be committed in prosecution of the common object.  Once it is  

established that  the unlawful assembly had common object,  it  is  not  

necessary  that  all  persons  forming  the  unlawful  assembly  must  be  

shown to have committed some overt act.  For the purpose of incurring  

the vicarious liability for the offence committed by a member of such  

unlawful assembly under the provision, the liability of other members  

of  the  unlawful  assembly  for  the  offence  committed  during  the  

continuance of the occurrence,  rests  upon the fact  whether  the other  

members  knew before hand that  the offence actually committed was  

likely to be committed in prosecution of the common object.

15. In Mizaji & Anr. Vs. State of U.P.10, explaining the scope of Section  

149 IPC, this Court had observed thus:

“This section has been the subject matter of interpretation in the  various High Courts of India, but every case has to be decided  on its  own facts.  The first  part  of the section means that the  offence committed in prosecution of the common object must  be  one  which  is  committed  with  a  view  to  accomplish  the  common  object.  It  is  not  necessary  that  there  should  be  a  

10 AIR 1959 SC 572  

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preconcert  in  the  sense  of  a  meeting  of  the  members  of  the  unlawful assembly as to the common object; it is enough if it is  adopted by all  the members  and is  shared by all  of them. In  order  that  the  case  may  fall  under  the  first  part  the  offence  committed  must  be connected immediately  with the  common  object  of  the  unlawful  assembly  of  which  the  accused  were  members.  Even  if  the  offence  committed  is  not  in  direct  prosecution of the common object of the assembly, it may yet  fall under S.  149 if it can be held that the offence was such as  the members knew was likely to be committed. The expression  'know' does not mean a mere possibility, such as might or might  not happen. For instance, it is a matter of common knowledge  that when in a village a body of heavily armed men set out to  take a woman by force, someone is likely to be killed and all the  members  of  the  unlawful  assembly  must  be  aware  of  that  likelihood and would be guilty under the second part of S. 149.  Similarly,  if  a  body  of  persons  go  armed  to  take  forcible  possession of the land, it would be equally right to say that they  have the knowledge that murder is likely to be committed if the  circumstances as to the weapons carried and other conduct of  the  members  of  the  unlawful  assembly  clearly  point  to  such  knowledge on the part of them all. There is a great deal to be  said for the opinion of Couch, C.J., in Sabed Ali's case, 20 Suth  WR  Cr  5  (supra)  that  when  an  offence  is  committed  in  prosecution  of  the  common  object,  it  would  generally  be  an  offence which the members of the unlawful assembly knew was  likely to be committed in prosecution of the common object.  That,  however,  does  not  make  the  converse proposition  true;  there may be cases which would come within the second part,  but not within the first. The distinction between the two parts of  S.  149, Indian Penal Code cannot be ignored or obliterated. In  every case it would be an issue to be determined whether the  offence  committed  falls  within  the  first  part  of  S.  149 as  explained above or it was an offence such as the members of the  assembly knew to be likely to be committed in prosecution of  the common object and falls within the second part.”

16.A ‘common object’  does not require a prior concert  and a common  

meeting of minds before the attack.  It is enough if each member of the  

unlawful assembly has the same object in view and their number is five  

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or more and that they act as an assembly to achieve that object.  The  

‘common object’ of an assembly is to be ascertained from the acts and  

language of the members composing it, and from a consideration of all  

the surrounding circumstances.   It may be gathered from the course of  

conduct adopted by the members of the assembly.  For determination of  

the common object of the unlawful assembly, the conduct of each of the  

members of the unlawful assembly, before and at the time of attack and  

thereafter,  the  motive  for  the  crime,  are  some  of  the  relevant  

considerations.  What the common object of the unlawful assembly is at  

a particular stage of the incident is essentially a question of fact to be  

determined,  keeping  in  view  the  nature  of  the  assembly,  the  arms  

carried by the members, and the behaviour of the members at or near  

the scene of the incident.  It is not necessary under law that in all cases  

of unlawful assembly, with an unlawful common object, the same must  

be translated into action or be successful.

17.In Masalti Vs. State of U.P.11, a Constitution Bench of this Court had  

observed that Section 149 makes it clear that if an offence is committed  

by any member of an unlawful assembly in prosecution of the common  

object of that assembly, or such as the members of that assembly knew  

to be likely to be committed in prosecution of that object, every person  

who, at the time of the committing of that offence, is a member of the  

11 [1964] 8 S.C.R. 133

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same assembly, is guilty of that offence; and that emphatically brings  

out the principle that the punishment prescribed by Section 149 is in a  

sense  vicarious  and  does  not  always  proceed  on  the  basis  that  the  

offence has been actually committed by every member of the unlawful  

assembly.  

18.In  Pandurang  Chandrakant  Mhatre  &  Ors.  Vs.  State  of   

Maharashtra12, of which one of us (R.M. Lodha, J.) was the author had,  

however, relying on  Masalti  (supra) and a few other decisions of this  

Court, cautioned that where a large number of persons are alleged to  

have participated in the crime and they are sought to be brought to book  

with the aid of Section 149 IPC, only those accused, whose presence  

was clearly established and an overt act by any one of them was proved,  

should  be  convicted  by  taking  into  consideration  a  particular  fact  

situation.

19.Having  examined  the  present  case  in  the  light  of  the  evidence  on  

record, particularly the testimony of PW-4 and PW-5, which has been  

relied upon by the courts below to come to the conclusion that all the  

appellants  are  liable  to  be  convicted  for  offence  punishable  under  

Section 302 IPC with the aid of Section 149 IPC, we are of the opinion  

that both the courts below were correct in coming to the conclusion that  

the prosecution has established case against all the appellants under the  

12 (2009) 10 SCC 773

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said provision.  It  has come in evidence that all  the appellants,  when  

they came out of their house with Rajeshwar Singh, they were armed  

with lethal weapons, like spear, farsa and lathi.  Though it is true that as  

per the evidence, it was Rajeshwar Singh who had fired on the deceased  

and his brother (PW-4) with his gun, yet it is clear from the nature of  

the weapons that they possessed, as members of the unlawful assembly,  

that they were determined to teach a lesson to the complainant party for  

daring to assert their right on the plot in question.  From their conduct it  

can safely be held that the murder of Upendra Singh and injuries to  

PW-4  were  immediately  connected  with  their  common  object  and,  

therefore, their case falls within the ambit of Section 149 IPC and they  

are  guilty  of  the  offences  for  which  they  have  been  convicted  and  

sentenced.   In the  FIR lodged by PW-5,  it  was  recited  that  accused  

Rajeshwar Singh and Sheo Jee Singh were armed with guns while other  

accused were having various lethal weapons when they arrived at the  

scene.   Being more than five in number,  they did form an unlawful  

assembly with the common object of eliminating the deceased and his  

brother and in prosecution of the common object, the deceased was shot  

dead and an attempt on the life of his brother (PW-4) was made by one  

of the members of the unlawful assembly, namely, Rajeshwar Singh.  

Thus,  all  of  them  had  knowledge  of  the  common  object  of  the  

assembly.  The two courts below, having appreciated and assessed the  

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evidence on the question, we are of the opinion that no ground is made  

out for a third review of the evidence on the issue.  Hence, in our view,  

all the appellants were liable and had been rightly convicted with the  

aid of Section 149 IPC.

20.As regards the plea of exercise of their right of private defence, here  

again we do not find much substance in the submission.   

21.Section 96 IPC provides that nothing is an offence which is done in  

exercise  of  the  right  of  private  defence.   The  expression  “right  of  

private  defence” is  not  defined in  the  Section.   The Section  merely  

indicates that nothing is an offence which is done in the exercise of  

such right.  Similarly, Section 97 IPC recognises the right of a person  

not  only  to  defend his  own or  another’s  body,  it  also  embraces  the  

protection of property, whether one’s own or another person’s against  

certain specified offences, namely, theft, robbery, mischief and criminal  

trespass.  Section 99 IPC lays down exceptions to which rule of self  

defence is subject.  Section 100 IPC provides,  inter alia, that the right  

of private defence of the body extends, under the restrictions mentioned  

in  Section 99 IPC,  to the  voluntary causing of  death,  if  the  offence  

which  occasions  the  exercise  of  the  right  be  an  assault  as  may  

reasonably cause the apprehension that grievous hurt will otherwise be  

the consequence of such assault.  In other words, if the person claiming  

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the  right  of  private  defence  has  to  face  the  assailant,  who  can  be  

reasonably apprehended to cause grievous hurt to him, it would be open  

to him to defend himself by causing the death of the assailant.   

22.The scope and width of private defence is further explained in Sections  

102 and 105 IPC, which deal with commencement and continuance of  

the  right  of  private  defence  of  body  and  property  respectively.  

According  to  these  provisions,  the  right  commences,  as  soon  as  a  

reasonable apprehension of danger to the body arises from an attempt or  

threat,  to  commit  offence,  although  the  offence  may  not  have  been  

committed but not until there is that reasonable apprehension. The right  

lasts  so  long  as  reasonable  apprehension  of  the  danger  to  the  body  

continues. (See: Jai Dev Vs. State of Punjab13.)

23.To put it pithily, the right of private defence is a defensive right.  It is  

neither a right of aggression nor of reprisal.  There is no right of private  

defence where there is no apprehension of danger.  The right of private  

defence is available only to one who is suddenly confronted with the  

necessity of averting an impending danger which is  not self  created.  

Necessity must be present,  real or apparent. (See:  Laxman Sahu Vs.  

State of Orissa14.)

13 AIR 1963 SC 612 14 AIR 1988 SC 83

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24.Thus, the basic principle underlying the doctrine of the right of private  

defence is that when an individual or his property is faced with a danger  

and immediate  aid from the state machinery is  not readily available,  

that  individual  is  entitled  to  protect  himself  and his  property.   That  

being so, the necessary corollary is that the violence which the citizen  

defending himself or his property is entitled to use must not be unduly  

disproportionate to the injury which is sought to be averted or which is  

reasonably apprehended and should not exceed its legitimate purpose.  

We  may,  however,  hasten  to  add  that  the  means  and  the  force  a  

threatened person adopts  at  the  spur  of  the  moment  to ward off  the  

danger and to save himself or his property cannot be weighed in golden  

scales.   It  is  neither  possible  nor  prudent  to  lay  down  abstract  

parameters which can be applied to determine as to whether the means  

and force adopted by the threatened person was proper or not.  Answer  

to  such  a  question  depends  upon  host  of  factors  like  the  prevailing  

circumstances  at  the  spot;  his  feelings  at  the  relevant  time;  the  

confusion and the excitement depending on the nature of assault on him  

etc.  Nonetheless, the exercise of the right of private defence can never  

be vindictive or malicious. It would be repugnant to the very concept of  

private defence. (See: Dharam & Ors. Vs. State of Haryana15.)

15 JT 2007 (1) SC 299

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25.It is well settled that the burden of establishing the plea of self defence  

is on the accused but it  is not as onerous as the one that lies on the  

prosecution.  While the prosecution is required to prove its case beyond  

reasonable doubt, the accused need not establish the plea of self defence  

to the hilt and may discharge the onus by showing preponderance of  

probabilities  in  favour  of  that  plea  on  the  basis  of  the  material  on  

record.  In  Vidhya Singh  Vs.  State of Madhya Pradesh16,  this Court  

had  observed  that  right  of  self  defence  should  not  be  construed  

narrowly because it is a very valuable right and has a social purpose.  

(Also see: Munshi Ram & Ors. Vs. Delhi Administration17; The State  

of Gujarat Vs. Bai Fatima & Anr.18 and Salim Zia Vs. State of Uttar  

Pradesh19.)

26.In order to find out whether right of private defence was available or  

not,  the  occasion  for  and  the   injuries  received  by  an  accused,  the  

imminence of threat to his safety, the injuries caused by the accused and  

circumstances whether the accused had time to have recourse to public  

authorities are relevant factors, yet the number of injuries is not always  

considered to be a safe criterion for determining who the aggressor was.  

It can also not be laid down as an unqualified proposition of law that  

whenever  injuries  are  on  the  body  of  the  accused  person,  the  

16 1971 (3) SCC 244 17 AIR 1968 SC 702 18 AIR 1975 SC 1478 19 AIR 1979 SC 391

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presumption  must  necessarily  be  raised  that  the  accused  person  had  

acted in exercise of his right of private defence.  The defence has to  

further establish that the injury so caused on the accused probabilise the  

version of the right of private defence.   

27.In the light of the afore-stated legal position, we will  examine as to  

whether it could be said that the appellants had assaulted the deceased  

and one other member of his family in exercise of their right of private  

defence?

28.The plea  of  self  defence has been rejected by the trial  court  on the  

ground that on the date of occurrence, the appellants had no right over  

the disputed land, much less a right to be protected at the cost of life of  

other persons.  Dealing with the question, while rejecting the stand of  

the appellants,  that they were in exclusive physical possession of the  

land, the High Court has observed that except for a broomstick, neither  

the deceased nor any other member of the complainant party had any  

weapon in their hands; the deceased was neither taking away the land  

nor was  changing its  nature  or  damaging it;  no overt  act  at  all  was  

committed  by  the  deceased  or  any  of  the  prosecution  witnesses;  no  

harm or injury was likely to be caused to the appellants or the land in  

dispute and thus, there was no threat to life or property of the appellants  

necessitating exercise of right of private defence.  The High Court held  

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that right of private defence of life and property cannot be exercised  

against an unarmed person.  In the light of the evidence on record, we  

have no hesitation in holding that the appellants were in fact, aggressors  

and being members of the aggressors party none of the appellants can  

claim right of self defence.  The right to defend does not include a right  

to  launch an offensive  or  aggression.   In  our  opinion,  therefore,  the  

appellants  have failed  to  establish  that  they were  exercising right  of  

private defence.

29.Finally, the third question for consideration is as to what is the effect  

of non-explanation of injuries suffered by appellant Sheo Jee Singh.  It  

cannot be held as an unqualified proposition of law that whenever the  

accused sustains an injury in the same occurrence, the prosecution is  

obliged to explain the injury and on failure of the prosecution to do so,  

the  prosecution  case  has  to  be  disbelieved.   In  Takhaji  Hiraji  Vs.   

Thakore Kubersing Chamansing & Ors.20, a Bench of three Judges of  

this Court, referring to earlier three-Judge Bench decisions,  observed  

that before non-explanation of the injuries on the persons of the accused  

persons by the prosecution witnesses may affect prosecution case, the  

Court has to be satisfied of the existence of two conditions: (i) that the  

injury on the person of the accused was of a serious nature; and (ii) that  

20 (2001) 6 SCC 145

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such  injuries  must  have  been  caused  at  the  time  of  occurrence  in  

question.

30.In our view, in the present case,  having regard to the nature of the  

injuries  allegedly  suffered  by  the  said  appellant,  the  case  of  the  

prosecution cannot be overthrown because of  non-explanation of the  

said injuries.  As per the medical report, the injuries allegedly suffered  

by Sheo Jee Singh were – ‘swelling covering around the lower 1/3 of   

right  upper  arm  just  above  right  elbow and  fracture  of  underlying   

bone’.  The injuries are simple and superficial in nature.  In view of the  

fact that the evidence against the appellants for having committed the  

afore-stated offences has been found to be cogent and creditworthy, in  

our opinion, it outweighs the effect of the omission on the part of the  

prosecution to explain the injuries.  We reject this ground as well.

31.For the afore-mentioned reasons, we do not find any merit in the appeal  

and the same is dismissed accordingly.   

…………………………………J.              (D.K. JAIN)  

                               ………………………………….J.             (R.M. LODHA)

NEW DELHI; JULY 9, 2010.

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