REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1057 of 2002

Darshan Singh .. Appellants

Versus

State of Punjab & Another .. Respondent

J U D G M E N T

Dalveer Bhandari, J.

1. This appeal is directed against the judgment and order of  

the Punjab & Haryana High Court in Criminal Appeal No.446-

(Division Bench) of 1994 dated 6.8.2002.   

2. Both  Darshan  Singh  and  Bakhtawar  Singh  were  

acquitted by the Sessions Court, Ludhiana. The said judgment  

of  acquittal  was  set  aside  by  the  High  Court  of  Punjab  &  

Haryana at Chandigarh.

3. Darshan Singh and Bakhtawar Singh filed appeal against  

the said judgment before this court.  During the pendency of  

this  appeal,  Bakhtawar  Singh  died  and  consequently  the  

appeal filed by him abated.  

4. Brief facts which are necessary to dispose of this appeal  

are recapitulated as under:-

The  dispute  is  between very  close  and intimate  family  

members.   Deceased  Gurcharan  Singh  was  the  brother  of  

Bakhtawar Singh and uncle of Darshan Singh.  He was the  

father of Gurdish Singh, PW7, the informant.  The agriculture  

fields  of  both  brothers,  Gurcharan  Singh  and  Bakhtawar  

Singh were situated adjoining to each other.  According to the  

prosecution,  on  15.7.1991  at  about  8  a.m.  Gurdish  Singh,  

PW7 and  his  father,  Gurcharan  Singh  were  irrigating  their  

aforesaid fields and were also mending its ridges and at that  

time  Gurdev  Singh,  PW8  and  Ajit  Singh  were  also  present  

there.  In the meantime, Darshan Singh and Bakhtawar Singh  

came there from the side of their fields raising lalkaras and  

abused the complainant party.  Darshan Singh, accused was  

armed with D.B.B.L. gun and his father Bakhtawar Singh was  

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carrying  a  Gandasa  and  they  were  saying  that  they  would  

teach a lesson to the complainant party for cutting the ridges.  

5. According  to  the  further  story  of  the  prosecution,  

Bakhtawar Singh gave a Gandasa blow causing injuries on the  

chest of Gurcharan Singh.  Gurcharan Singh was also having  

a  Gandasa  with  him and  in  order  to  save  himself  he  also  

caused injury on the head of Bakhtawar Singh.  Thereafter,  

Darshan Singh fired two shots from his licensed gun which hit  

Gurcharan  Singh  in  the  chest  and  some  of  the  pellets  hit  

Gurdish Singh PW7 on his left upper arm and Gurdev Singh,  

PW8 on his left thigh.  Gurcharan Singh fell down and died at  

the spot.   Gurdish Singh and others retraced their steps in  

order to save themselves.  Both the accused in order to save  

themselves  ran  towards  their  respective  houses.   Gurdish  

Singh,  PW7  left  the  dead  body  of  Gurcharan  Singh  and  

proceeded  to  the  police  station  to  lodge  a  report.   Gurdev  

Singh PW8 also accompanied him.  They met Om Prakash, ASI  

at about 9 a.m. at Barnala crossing where Gurdish Singh PW7  

gave his statement.  It was then read over and explained to  

him who signed the same admitting the contents thereof to be  

correct.   Om Prakash, ASI made his endorsement (Ex. N/1)  

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and forwarded the statement to the police station, Rajkot and  

on the basis of which the case was registered against both the  

accused.  

6. Om  Prakash,  ASI  accompanied  Gurdish  Singh  and  

Gurdev Singh to the place of occurrence.  He prepared inquest  

report in respect of the dead body of Gurcharan Singh and  

then sent the dead body for post-mortem examination through  

Constable  Milkha  Singh  and  Head  Constable  Pargat  Singh.  

Om Prakash,  ASI  lifted  blood  stained  earth  from the  place  

where dead body of Gurcharan Singh was lying and took the  

same into possession after preparing the recovery memo.   One  

gandasa and an empty cartridge of 12 bore were found lying  

near the dead body.  The gandasa and the empty cartridge  

were  also  taken  into  possession.   The  Investigating  Officer  

prepared  visual  site  plan  of  the  place  of  occurrence  with  

marginal  notes.   Gurdish  Singh  and  Gurdev  Singh’s  injury  

statements  were  also  prepared  and  sent  for  medico  legal  

examination.   

7. Dr.  Mukesh  Gupta  PW4  conducted  post-mortem  

examination  on  the  dead  body  of  Gurcharan  Singh  on  

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15.7.1991 at 4.30 p.m.  On the same day at 5.50 p.m. Dr.  

Gupta  also  conducted  medico  legal  examination  of  Gurdev  

Singh and found one abrasion on his left thigh.   Dr. Gupta  

found a superficial abrasion on Gurdish Singh on his elbow.  

Darshan  Singh  and  Bakhtawar  Singh  were  arrested  on  

28.7.1991.  The factum of the incident has not been denied by  

the accused and they claimed right of private defence.   

8. According to the prosecution, the motive of the crime was  

dispute  regarding  partition  of  land  between  both  brothers  

Bakhtawar Singh and Gurcharan Singh.  One year prior to the  

present  incident,  the  village  Panchayat  had got  the  dispute  

compromised by a written agreement.  There was a common  

well  situated  in  the  adjoining  land.  As  a  result  of  the  

compromise, the well along with a small piece of land attached  

to it was given to Gurcharan Singh and the land of common  

pathway leading to the well was given to the accused party.  

The compromise was not accepted by the accused party and  

they wanted repartition of the land attached to the well.  This  

grievance led to this unfortunate incident.  

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9. The  prosecution  examined  11  witnesses.   Dr.  Mukesh  

Gupta,  PW4  who  conducted  the  post-mortem  examination  

found the following injuries on the dead body of Gurcharan  

Singh:-

“1. There were 14 wounds in an area of 20 cm x  18  cm  on  left  side  of  the  chest  above  the  nipple.  One of the wounds which was above  the  nipple  was  having  inverted  margins.   A  wad  was  recovered  from  this  wound.  This  wound was 1 cm x 1 cm.  The 9 wounds which  measured 0.75 cm x 0.75 cm which were on  the  chest  and  shoulder  also  had  inverted  margins. Out of these wounds 6 were found to  entering  chest  cavity  and  6  pellets  were  recovered from the chest cavity. The remaining  3 wounds were having everted margins. These  were  near  the  axilla  and  each  wound  measured 1 cm x 1 cm.  One of the 14 wounds  which measured 0.75 cm x 1.5 cm was having  inverted margins.  It was skin deep and was on  the  shoulder,  upper  part  of  humerous  and  clavicle bones were found to be fractured.  4th  and 5th rib of the left side of the chest were also  found to be fractured.

2. There were 7 wounds in an area of 20 cm x 8 cm  on the upper part of the chest on its right side  above the nipple.  Out of these wounds 3 wounds  measuring  0.75  cm  x  1  cm  each  was  having  inverted  margins,  these  were  skin  deep.   2  wounds  were  having  everted  margins  having  a  dimension of 1 x 1 cm each near the axilla.  A  pellet  was recovered from near  the axilla.   The  remaining 2 wounds were near the top of right  shoulder  measuring  0.75  x  1.5  cm  each  with  inverted margins.  These were skin deep.

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3. An incised wound 8 cm x 0.5 cm skin deep on the  left side of chest 3 cm above the nipple.  It was  horizontally placed.”

10. Dr. Mukesh Gupta found following injury on the person  

of Gurdev Singh:-

“An abrasion measuring 1 cm x 0.5 cm on the front  and  inner  side  of  left  thigh.  It  was  a  superficial  abrasion  reddish  in  colour,  over  the  junction  of  upper 1/3rd and lower 2/3rd of the thigh.  There was  damage to the pajama corresponding to the injury.”

11. According to the doctor, the injury was simple in nature  

and was caused within 24 hours.   Doctor also found injury on  

Gurdish Singh to be superficial.  The same reads as under:-

“A very superficial abrasion 1 cm x 0.5 cm on the  upper side of left upper arm 12 cm above the elbow.  It was reddish in colour.”

12. It may be relevant to mention that Dr. M.S. Gill,  PW5,  

who conducted the medical examination of Bakhtawar Singh  

found the following injuries on his person:-

“1.  An incised wound 7 cm x 0.5 cm on the parietal  region  of  the  right  side  of  head.   It  was  placed  anterior posteriorly.  The wound was bone deep and  4  cm  above  the  right  pinna.   Clotted  blood  was  present.”

13. According  to  doctor,  this  injury  was caused by  sharp-

edged weapons.

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14. Both Gurdish Singh, PW7 and Gurdev Singh, PW8 are  

the  eye-witnesses  who  gave  detailed  description  of  the  

occurrence.  After  examining  the  prosecution  evidence,  the  

following statements of Darshan Singh and Bakhtawar Singh  

were recorded under section 313 Cr. P.C.. The relevant portion  

of the statement of Darshan Singh reads as under:-

“I am innocent.  In fact the complainant party had  gone back from the agreement got effected by the  Panchayat  one  year  prior  to  the  occurrence.   In  accordance  with  the  said  compromise  we  had  ploughed the land which was earlier under common  pathway.  One day prior to the occurrence we had  irrigated that portion of  the land.  On the day of  occurrence when we went to the fields, Gurcharan  Singh (deceased) along with 3-4 outsiders came to  our field and remarked that we would be taught a  lesson  for  irrigating  the  land.   Immediately  thereafter  Gurcharan  Singh  gave  a  gandasa  blow  hitting my father Bakhtawar Singh on the head as a  result of which he fell down.  I felt that my father  had been killed.  Gurcharan Singh then advanced  towards  me holding  the  gandasa.   I  apprehended  that  I  too  would  be  killed  and  I  then  pulled  the  trigger  of  my  gun.   Gurcharan  Singh  fell  to  the  ground and his companions took to their heels.  I  then took Bakhtawar Singh in injured condition to  Govt. hospital, Sudhar. Police came to the hospital  at  about 5 p.m.   We were kept  under  guard and  brought to the police station on the next day after  getting my father discharged. We have been falsely  implicated in this case.

Bakhtawar Singh (accused) pleaded as under:-

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“I am innocent.  It was the complainant party who  had  resiled  from  the  compromise  got  effected  by  Panchayat about a year before the occurrence.  We  had  ploughed  the  land  which  had  fallen  to  our  share and one day prior to the occurrence we had  irrigated the same.  On the day of occurrence when  we went to the fields Gurcharan Singh (deceased)  along  with  3-4  outsiders  came  to  our  field  and  remarked  that  we  would  be  taught  a  lesson  for  irrigating  the  land.  Immediately  thereafter  Gurcharan Singh gave a gandasa blow on my head  as a result of which I fell down.  Gurcharan Singh  then advanced towards Darshan Singh holding his  gandasa  whereupon  Darshan  Singh  fired  a  shot  from his gun.  I was taken to Government hospital,  Sudhar by Darshan Singh.   Police came there on  the same day at about 5 p.m. and took us to the  police  station  after  getting  me  discharged.  I  have  been falsely involved in this case.”

15. According to the versions of the accused Darshan Singh  

and  Bakhtawar  Singh,  Gurcharan  first  gave  Gandasa  blow  

hitting Bakhtawar Singh on the head and the injury caused on  

Bakhtawar Singh was an incised wound of 7 cm x 0.5 cm. on  

the parietal region of the right side of head.  The wound was  

bone deep and 4 cm above the right pinna and clotted blood  

was present and after receiving these injuries in order to save  

himself,  Darshan Singh fired at  Gurcharan Singh and as a  

result of which he died.   According to the accused, the entire  

act is covered by the right of private defence.  According to the  

prosecution, Bakhtawar Singh gave first injury on the chest of  

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Gurcharan Singh whereas according to the defence the first  

injury  was  given  by  Gurcharan  Singh  to  Bakhtawar  Singh.  

The  appellant  Darshan  Singh  fired  only  after  the  serious  

incised  wound  by  a  Gandasa  was  inflicted  on  his  father  

Bakhtawar Singh and at that time in order to save his life he  

fired 2 shots which hit the deceased Gurcharan Singh leading  

to his death.

16. The  point  for  determination  is  the  place  where  the  

unfortunate incident had taken place. According to Bhupinder  

Singh Patwari, PW3, point ‘A’ in site plan Ex.PC denotes the  

place where the dead body of Gurcharan Singh was said to be  

lying and this point is in Khasra No.10.  He further testified  

that  accused  Bakhtawar  Singh  was  recorded  in  cultivating  

possession of Khasra No.10.  According to the finding of the  

trial  court,  it  clearly  shows  that  Bakhtawar  Singh  was  in  

possession of Khasra No.10.  According to Bhupinder Singh  

Patwari,  Point  ‘E’  is  in  Khasra  No.10  from  where  Darshan  

Singh had allegedly fired at Gurcharan Singh.  According to  

the site plan prepared by Bhupinder Singh Patwari, Point ‘F’ is  

the place where the dispute took place with Bakhtawar Singh.  

According to the Patwari, this point ‘F’ is in Khasra No.10 at a  

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distance of 5 karms which is equivalent to 27.5 feet from the  

aforesaid pathway and point ‘A’  is at a distance of 7 karms  

from point ‘F’.  Thus, from this evidence it is evident that the  

occurrence  took  place  inside  Khasra  No.10  which  was  in  

possession of  Bakhtawar  Singh accused.   Gurcharan Singh  

covered a distance of about 7 karms which is equivalent to  

37.5 feet.

17. The trial court came to the conclusion that the presence  

of  Gurdev  Singh  and  Gurdish  Singh  at  the  time  of  alleged  

occurrence is highly doubtful.  Dr. Mukesh Gupta also stated  

that  injuries  on  the  person  of  Gurdev  Singh  and  Gurdish  

Singh  could  be  caused  by  friendly  hands  and  can  be  self  

suffered.   He  further  stated  in  the  cross  examination  that  

duration of the injuries was less than 6 hours.  As per the  

prosecution case, the injuries were allegedly received by them  

at about 8 a.m.   No pellet was recovered from the injuries of  

these  witnesses  namely,  Gurdev  Singh  and  Gurdish  Singh.  

According to the trial court, the possibility of these injuries on  

their person having been fabricated at a later stage cannot be  

ruled out.  The trial court also held that there was no mention  

of the injuries received by Gurdish Singh and Gurdev Singh in  

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the inquest report whereas this fact finds mention in the first  

information  report.   According  to  the  prosecution,  Gurdish  

Singh suffered pellet  injury  on the left  upper  arm whereas,  

Gurdev Singh was hit  on his left  thigh.  If  it  was so, there  

would have been mention of this fact in the inquest report or  

the  investigating  officer  must  have  prepared  their  injury  

statement,  but  neither  any  such  injury  statement  was  

prepared  at  the  spot  nor  their  medical-examination  was  

carried out.  Om Prakash, ASI, in his cross-examination has  

admitted that he came to know about the injuries of Gurdish  

Singh  and  Gurdev  Singh  only  when  they  gave  their  

supplementary statements at the bus stand.  According to the  

findings of the trial court, their injury statement was prepared  

at the spot and they were medically examined by Dr. Mukesh  

Gupta.  Thus, according to the trial court the injuries were  

fabricated with connivance with the investigating officer just in  

order  to  make  Gurdish  Singh  and  Gurdev  Singh  stamp  

witnesses.

18. The trial court after discussing the entire evidence came  

to the conclusion that two counter versions of the case have  

been presented and, in the view of the trial court, the defence  

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version  is  more  probable  and  nearer  to  the  truth  for  the  

following reasons:

(i) The delay in lodging the FIR impells the court  

to  scrutinize  the  evidence  of  witnesses  

regarding  the  actual  occurrence  with  greater  

care and caution.

(ii) The  crucial  point  to  be  decided  in  this  case  

was that who was the aggressor or which of  

the  parties  can have the motive  to open the  

attack?

The trial court held that “if the accused were  

already  cultivating  the  land  as  per  

compromise, then it does not appeal to reason  

as to why they would feel aggrieved.  On the  

other  hand  there  was  strong  motive  for  

Gurcharan  Singh  to  assault  the  accused  

person  as  he  has  resiled  from  the  

compromise.”

(iii) The  next  crucial  point  according  to  the  trial  

court was as to where the incident took place?  

According to the trial  court  the incident  had  

taken place in the field of the accused.   

(iv) According to the trial court, the presence of the  

prosecution  witnesses  Gurdev  Singh  and  

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Gurdish  Singh  at  the  time  of  alleged  

occurrence is highly doubtful.    Dr. Mukesh  

Gupta  stated  that  the  injuries  on  Gurdev  

Singh and Gurdish Singh could be caused by  

friendly hands and can be self suffered.   

(v) No pellet was recovered from the injuries of the  

prosecution  witnesses  namely,  Gurdev  Singh  

and  Gurdish  Singh.  The  possibility  of  the  

injuries  on  their  persons  having  been  

fabricated at a later stage cannot be ruled out.  

The trial court found that, in the instant case,  

it  appeared  that  the  inquest  report  was  

prepared  first  and  the  FIR  was  prepared  at  

some later stage because there was no mention  

about  the  injuries  of  Gurdev  Singh  and  

Gurdish Singh in the inquest report, whereas  

this fact is mentioned in the FIR.  According to  

the prosecution case, Gurdish Singh suffered a  

pellet  injury  on  his  left  upper  arm whereas,  

Gurdev Singh was hit  on his left  thigh.  This  

was so mentioned in the FIR.   If it was so, this  

fact would have been mentioned in the inquest  

report  or the Investigating Officer  must  have  

prepared their injury statement, but no such  

injury statement was prepared at the spot nor  

their medical examination was got done.

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In  the  cross-examination,  Om  Prakash  

ASI had admitted that he came to know about  

the  injuries  of  Gurdish  Singh  and  Gurdev  

Singh  only  when  they  gave  their  

supplementary  statements  at  the  bus  stand.  

The  finding  of  the  trial  court  is  that  the  

injuries were fabricated with the connivance of  

the Investigating Officer just in order to make  

Gurdish  Singh  and  Gurdev  Singh  stamp  

witnesses.   

(vi) Gurdish  Singh  P.W.7  had  admitted  that  his  

father Gurcharan Singh was face to face when  

Bakhtawar  Singh  gave  Gandasa  blow  from  

above to downward vertically on the chest of  

Gurcharan  Singh.   However,  Dr.  Mukesh  

Gupta contradicted him and stated that injury  

no.3 on the person of  Gurcharan Singh was  

skin deep and was horizontally placed and was  

possible  by a fall  on a sharp edged weapon.  

From this  it  can safely  be  concluded  that  it  

was not Bakhtawar Singh who gave Gandasa  

blow  to  Gurcharan  Singh  in  the  manner  as  

suggested by the prosecution.  It is most likely  

that Gurcharan Singh suffered injury no. 3 by  

a fall  on his own Gandasa and this was the  

reason  that  the  wound  was  only  skin  deep.  

The  story  put  forth  by  the  prosecution  that  

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Gurcharan Singh was cutting weeds of ridges  

with Gandasa is not believable. Gurdish Singh  

stated that  he  was  collecting  the  cut  weeds.  

They were not having any Kassi or Khurpa and  

it was not possible to cut weeds of ridges with  

Gandasa.

(vii) The trial court came to a clear conclusion that  

Bakhtawar Singh was injured at  point  ‘F’  as  

shown  in  the  site  plan  at  the  hands  of  

Gurcharan  Singh  (deceased).   Gurcharan  

Singh  after  causing  that  injury  forwarded  

towards Darshan Singh armed with Gandasa  

and at that point Darshan Singh had no option  

but to open fire and Gurcharan Singh died of  

that firearm injury.  The trial court came to the  

definite conclusion that Darshan Singh fired a  

shot in his right of private defence.   

(viii) The  trial  court  after  marshalling  the  entire  

evidence  came to  the  conclusion  that  seeing  

from all  angles,  the  probabilities  of  the  case  

are much more in favour of the defence than in  

favour of  the prosecution.   The possibility  of  

the injuries having been caused to Gurcharan  

Singh by Darshan Singh in exercise of private  

defence  cannot  be  ruled  out.   Thus,  the  

prosecution has failed to prove its case against  

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the  accused  person  beyond  any  reasonable  

doubt and the benefit has to be given to them.  

19. We deem it appropriate to briefly discuss the principle of  

right of private defence and how the courts have crystallized  

this principle in some important judgments.

20. Relevant  provisions  dealing  with  the  right  of  private  

defence are sections 96 and 97 of the Indian Penal Code.   

“96. Things done in private defence. –  Nothing is  an offence which is done in the exercise of the right  of private defence.

97. Right of private defence of the body and of  property. – Every person has a right subject to the  restrictions contained in Section 99, to defend—

First.– His own body, and the body of any other  person,  against  any  offence  affecting  the  human  body;

Secondly.– The property, whether moveable or  immoveable,  of  himself  or  of  any  other  person,  against any act which is an offence falling under the  definition  of  theft,  robbery,  mischief  or  criminal  trespass,  or which is an attempt to commit  theft,  robbery, mischief or criminal trespass.”  

21. Section  100 of  the  Indian  Penal  Code  is  extracted  as  

under:

“100. When the right of private defence of the  body  extends  to  causing  death. --  The  right  of  

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adversary is going to attack him and he reasonably believes  

that the attack will result in a grievous hurt. In that event he  

can  go  to  the  extent  of  causing  the  latter's  death  in  the  

exercise of the right of private defence even though the latter  

may not have inflicted any blow or injury on him.

23. It is settled position of law that in order to justify the act  

of causing death of the assailant, the accused has simply to  

satisfy  the  court  that  he  was  faced  with  an  assault  which  

caused a reasonable apprehension of death or grievous hurt.  

The question whether the apprehension was reasonable or not  

is  a  question  of  fact  depending  upon  the  facts  and  

circumstances of each case and no strait-jacket formula can  

be prescribed in this regard. The weapon used, the manner  

and nature of assault and other surrounding circumstances  

should  be  taken into  account  while  evaluating  whether  the  

apprehension was justified or not?

SCOPE AND FOUNDATION OF THE PRIVATE DEFENCE

24. The rule as to the right of private defence has been stated  

by Russel on Crime (11th Edn., Vol.1, p.491) thus:

“….. a man is justified in resisting by force anyone  who manifestly intends and endeavours by violence  

19

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.”    

When enacting sections 96 to 106 of  the Indian Penal  

Code, excepting from its penal provisions, certain classes of  

acts, done in good faith for the purpose of repelling unlawful  

aggressions,  the  Legislature  clearly  intended  to  arouse  and  

encourage  the  manly  spirit  of  self-defence  amongst  the  

citizens,  when faced  with  grave  danger.   The  law  does  not  

require  a  law-abiding citizen to  behave  like  a  coward when  

confronted  with  an  imminent  unlawful  aggression.   As  

repeatedly  observed  by  this  court  there  is  nothing  more  

degrading to  the  human spirit  than to  run away in face of  

danger.  The right of private defence is thus designed to serve  

a  social  purpose  and  deserves  to  be  fostered  within  the  

prescribed limits.

25. Hari Singh Gour in his celebrated book on Penal Law of  

India (11th Edition 1998-99) aptly observed that self-help is the  

first rule of criminal law.  It still  remains a rule, though in  

20

process  of  time  much  attenuated  by  considerations  of  

necessity, humanity, and social order.  According to Bentham,  

in his book ‘Principles of Penal Laws’ has observed “the right of  

defence is absolutely necessary”.   It is based on the cardinal  

principle that it is the duty of man to help himself.  

26. Killing in defence of a person, according to the English  

law, will amount to either justifiable or excusable homicide or  

chance  medley,  as  the  latter  is  termed,  according  to  the  

circumstances of the case.  

27. But there is another form of homicide which is excusable  

in self-defence.  There are cases where the necessity for self-

defence  arises  in  a  sudden  quarrel  in  which  both  parties  

engage, or on account of the initial provocation given by the  

person  who  has  to  defend  himself  in  the  end  against  an  

assault endangering life.  

28. The Indian Penal Code defines homicide in self-defence  

as a form of substantive right, and therefore, save and except  

the  restrictions  imposed  on  the  right  of  the  Code  itself,  it  

seems that the special rule of English Law as to the duty of  

21

retreating will have no application to this country where there  

is a real need for defending oneself against deadly assaults.

29. The  right  to  protect  one’s  own  person  and  property  

against the unlawful aggressions of others is a right inherent  

in man.  The duty of protecting the person and property of  

others is a duty which man owes to society of which he is a  

member and the preservation of which is both his interest and  

duty.  It is, indeed, a duty which flows from human sympathy.  

As Bentham said: “It is a noble movement of the heart, that  

indignation which kindles at the sight of the feeble injured by  

the strong.  It is noble movement which makes us forget our  

danger at the first  cry of  distress…..  It  concerns the public  

safety that every honest man should consider himself as the  

natural protector of every other.”   But such protection must  

not be extended beyond the necessities of the case, otherwise  

it  will  encourage a spirit  or  lawlessness and disorder.   The  

right  has,  therefore,  been  restricted  to  offences  against  the  

human body and those relating to aggression on property.

30. When there is real apprehension that the aggressor might  

cause death or grievous hurt, in that event the right of private  

22

defence of the defender could even extend to causing of death.  

A mere reasonable apprehension is enough to put the right of  

self-defence into operation, but it is also settled position of law  

that a right of self-defence is only right to defend oneself and  

not to retaliate. It is not a right to take revenge.    

31. Right  of  private  defence  of  person  and  property  is  

recognized  in  all  free,  civilsed,  democratic  societies  within  

certain  reasonable  limits.   Those  limits  are  dictated  by two  

considerations : (1) that the same right is claimed by all other  

members  of  the  society  and  (2)  that  it  is  the  State  which  

generally undertakes the responsibility for the maintenance of  

law and order.   The citizens,  as a general  rule,  are  neither  

expected to run away for safety when faced with grave and  

imminent  danger  to  their  person or  property  as  a  result  of  

unlawful aggression, nor are they expected, by use of force, to  

right the wrong done to them or to punish the wrong doer of  

commission of offences.  

32. A legal philosopher Michael  Gorr in his article  “Private  

Defense”  (published  in  the  Journal  “Law  and  Philosophy”  

23

Volume 9, Number 3 / August 1990 at Page 241) observed as  

under:

“Extreme pacifists  aside,  virtually  everyone agrees  that it is sometimes morally permissible to engage  in  what  Glanville  Willams  has  termed  “private  defence”,  i.e.,  to  inflict  serious  (even lethal)  harm  upon another person in order to protect oneself or  some innocent third party from suffering the same”.

33. 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.  The right of private defence  

is available only to one who is suddenly confronted with the  

necessity of averting an impending danger not of self creation.  

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.   

34. This court in number of cases have laid down that when  

a person is  exercising his right  of  private  defence,  it  is  not  

possible to weigh the force with which the right is exercised.  

24

The  principle  is  common  to  all  civilized  jurisprudence.   In  

Robert B. Brown v. United States of America (1921) 256 US  

335,  it  is  observed  that  a  person  in  fear  of  his  life  in  not  

expected to modulate his defence step by step or tier by tier.  

Justice  Holmes  in  the  aforementioned  case  aptly  observed  

“detached reflection cannot be demanded in the presence of an  

uplifted knife”.

35. According  to  Section  99  of  the  Indian  Penal  Code  the  

injury  which  is  inflicted  by  the  person  exercising  the  right  

should  commensurate  with  the  injury  with  which  he  is  

threatened.  At the same time, it is difficult to expect from a  

person exercising this right in good faith, to weigh “with golden  

scales” what maximum amount of force is necessary to keep  

within the right every reasonable allowance should be made  

for the bona fide defender. The courts in one voice have said  

that it would be wholly unrealistic to expect of a person under  

assault  to  modulate  his  defence  step  by  step  according  to  

attack.

36. The courts have always consistently held that the right of  

private defence extends to the killing of the actual or potential  

assailant  when  there  is  a  reasonable  and  imminent  

25

apprehension of the atrocious crimes enumerated in the six  

clauses of section 100 of the IPC.  According to the combined  

effect of two clauses of section 100 IPC taking the life of the  

assailant would be justified on the plea of private defence; if  

the  assault  causes  reasonable  apprehension  of  death  or  

grievous hurt to the person exercising the right. A person who  

is in imminent and reasonable danger of losing his life or limb  

may in the exercise of right of self-defence inflict any harm,  

even  extending  to  death  on  his  assailant  either  when  the  

assault is attempted or directly threatened.  When we see the  

principles  of  law  in  the  light  of  facts  of  this  case  where  

Darshan  Singh  in  his  statement  under  section  313  has  

categorically  stated  that  “Gurcharan  Singh  gave  a  gandasa  

blow hitting  my father  Bakhtawar  Singh  on  the  head  as  a  

result of which he fell down.  I felt that my father had been  

killed.  Gurcharan Singh then advanced towards me holding  

the gandasa.  I apprehended that I too would be killed and I  

then pulled the trigger of my gun in self defence.”  Gurcharan  

Singh died of gun shot injury.     

37. In the facts and circumstances of this case the appellant,  

Darshan Singh had the serious apprehension of death or at  

26

least the grievous hurt when he exercised his right of private  

defence to save himself.

BRIEF ENUMERATION OF IMPORTANT CASES:

38. The  legal  position  which  has  been  crystallized  from  a  

large number of cases is that law does not require a citizen,  

however law-abiding he may be, to behave like a rank coward  

on  any  occasion.   This  principle  has  been  enunciated  in  

Mahandi v. Emperor [(1930)  31 Criminal  Law Journal 654  

(Lahore); Alingal Kunhinayan & Another v. Emperor Indian  

Law Reports 28 Madras 454;  Ranganadham Perayya, In re  

(1957) 1 Andhra Weekly Reports 181.

39. The law clearly spells out that right of private defence is  

available  only  when  there  is  reasonable  apprehension  of  

receiving  the  injury.   The  law  makes  it  clear  that  it  is  

necessary that the extent of right of private defence is that the  

force used must bear a reasonable proportion of the injury to  

be averted, that is the injury inflicted on the assailant must  

not  be  greater  than  is  necessary  for  the  protection  of  the  

person assaulted.  A person in fear of his life is not expected to  

27

modulate his defence step by step, but at the same time it  

should not be totally disproportionate.

40. A Full Bench of the Orissa High Court in State of Orissa  

v. Rabindranath Dalai & Another 1973 Crl LJ 1686 (Orissa)  

(FB) summarized the legal position with respect to defence of  

person and property thus: “In a civilized society the defence of  

person  and  property  of  every  member  thereof  is  the  

responsibility of the State.  Consequently, there is a duty cast  

on every person faced with apprehension of imminent danger  

of  his  person or  property  to  seek the  aid of  the  machinery  

provided  by  the  State  but  if  immediately  such  aid  is  not  

available, he has the right of private defence.

41. In Laxman Sahu v. State of Orissa 1986 (1) Supp SCC  

555 this court observed that it is needless to point out in this  

connection that the right of private defence is available only to  

one who is suddenly confronted with immediate necessity of  

averting an impending danger not of his creation.   

42. In Raghavan Achari v. State of Kerala 1993 Supp. (1)  

SCC  719  this  court  observed  that  “No  court  expects  the  

28

citizens not to defend themselves especially when they have  

already suffered grievous injuries”.

43. In  Jagtar Singh v.  State of Punjab AIR 1993 SC 970  

this court held that “the accused has taken a specific plea of  

right  of  self-defence and it  is  not necessary that  he should  

prove it beyond all reasonable doubt. But if the circumstances  

warrant that he had a reasonable apprehension that death or  

grievous hurt was likely to be caused to him by the deceased  

or their companions, then if he had acted in the right of self-

defence, he would be doing so lawfully.”

44. In  Puran  Singh  &  Others v. The  State  of  Punjab  

(1975)  4 SCC 518 this court observed that  in the following  

circumstances right of private defence can be exercised :-

i. There  is  no  sufficient  time  for  recourse  to  the  public authorities

ii. There must be a reasonable apprehension of death  or  grievous hurt  to  the  person or  danger  to  the  property concerned.

iii. More harm than necessary should not have been  caused.  

45. In  Bhagwan  Swaroop v.  State  of  Madhya  Pradesh  

(1992) 2 SCC 406 this court had held as under:-

29

“It  is  established on the  record  that  Ramswaroop  was  being  given  lathi  blows  by  the  complainant  party  and it  was  at  that  time  that  gun-shot  was  fired by Bhagwan Swaroop to save his father from  further blows. A lathi is capable of causing a simple  as well as a fatal injury. Whether in fact the injuries  actually  caused  were  simple  or  grievous  is  of  no  consequence.  It  is  the  scenario  of  a  father  being  given lathi blows which has to be kept in mind and  we are of the view that in such a situation a son  could reasonably apprehend danger to the life of his  father and his firing a gun-shot at that point of time  in defence of his father is justified.”

46. The facts of this case are akin to the facts of the instant  

case.

47. In Kashmiri Lal & Others v. State of Punjab (1996) 10  

SCC 471,  this  court  held  that  “a  person who is  unlawfully  

attacked has every right  to counteract  and attack upon his  

assailant and cause such injury as may be necessary to ward  

off the apprehended danger or threat.”

48. In James Martin v. State of Kerala (2004) 2 SCC 203,  

this court again reiterated the principle that 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.

30

49. In  Gotipulla Venkatasiva Subbrayanam & Others v.  

The State of Andhra Pradesh & Another (1970) 1 SCC 235,  

this  court  held  that  “the  right  to  private  defence  is  a  very  

valuable right and it has been recognized in all civilized and  

democratic societies within certain reasonable limits.”

50. In Mahabir Choudhary v. State of Bihar (1996) 5 SCC  

107 this court held that “the High Court erred in holding that  

the appellants had no right to private defence at any stage.  

However, this court upheld the judgment of the sessions court  

holding that since the appellants had right to private defence  

to protect their property, but in the circumstances of the case,  

the  appellants  had  exceeded  right  to  private  defence.   The  

court observed that right to private defence cannot be used to  

kill  the  wrongdoer  unless  the  person  concerned  has  a  

reasonable cause to fear that otherwise death or grievous hurt  

might  ensue  in  which  case  that  person  would  have  full  

measure of right to private defence including killing”.

51. In  Munshi  Ram  &  Others v. Delhi  Administration  

(1968) 2 SCR 455, this court observed that “it is well settled  

that even if the accused does not plead self defence, it is open  

31

to consider such a plea if the same arises from the material on  

record.  The burden of establishing that plea is on the accused  

and that burden can be discharged by showing preponderance  

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

available on record.

52. In  State of Madhya Pradesh v. Ramesh (2005) 9 SCC  

705, this court observed “every person has a right to defend  

his  own body  and  the  body  of  another  person against  any  

offence, affecting the human body.  The right of self defence  

commences as soon as reasonable apprehension arises and it  

is co-terminus with the duration of such apprehension.  Again,  

it is defensive and not retributive right and can be exercised  

only in those cases where there is no time to have recourse to  

the protection of the public authorities.”

53. In  Triloki Nath & Others v.  State of U.P.  (2005)  13  

SCC 323 the court observed as under:-

“No  decision  relied  upon  by  the  Appellants  lays  down a law in absolute terms that in all situations  injuries on the persons of the accused have to be  explained.  Each  case  depends  upon  the  fact  situation obtaining therein.”

32

54. In Vidhya Singh v. State of Madhya Pradesh (1971) 3  

SCC 244, the court observed that “the right of self-defence is a  

very valuable right, serving a social purpose and should not be  

construed narrowly.  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  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.”

55. In  Jai  Dev v.  State  of  Punjab AIR 1963 SC 612 the  

court held as under:-

33

“as  soon  as  the  cause  for  the  reasonable  apprehension has disappeared 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.”

56. In order to find out 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.   

57. In  Buta Singh v. The State of Punjab (1991)  2 SCC  

612,  the court noted that 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-

34

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, as noted above, a finding  

of fact.”

58. The  following  principles  emerge  on  scrutiny  of  the  

following judgments:

(i) Self-preservation is the basic human instinct and  

is duly recognized by the criminal jurisprudence  

of all civilized countries.  All free, democratic and  

35

civilized countries recognize  the right  of  private  

defence within certain reasonable limits.

(ii) The right of private defence is available only to  

one  who  is  suddenly  confronted  with  the  

necessity  of  averting  an impending  danger  and  

not of self-creation.

(iii) A mere reasonable apprehension is enough to put  

the right of self defence into operation.  In other  

words, it is not necessary that there should be an  

actual commission of the offence in order to give  

rise to the right of private defence. It is enough if  

the accused apprehended that such an offence is  

contemplated and it is likely to be committed if  

the right of private defence is not exercised.

(iv) The right of private defence commences as soon  

as a reasonable apprehension arises and it is co-

terminus  with  the  duration  of  such  

apprehension.

36

(v) It is unrealistic to expect a person under assault  

to  modulate  his  defence  step  by  step  with  any  

arithmetical exactitude.    

(vi) In private defence the force used by the accused  

ought not to be wholly disproportionate or much  

greater  than  necessary  for  protection  of  the  

person or property.

(vii) It is well settled that even if the accused does not  

plead self-defence, it is open to consider such a  

plea  if  the  same  arises  from  the  material  on  

record.

(viii) The accused need not prove the existence of the  

right of private defence beyond reasonable doubt.

(ix) The Indian Penal Code confers the right of private  

defence only when that unlawful or wrongful act  

is an offence.

(x) A  person  who  is  in  imminent  and  reasonable  

danger of losing his life or limb may in exercise of  

self  defence  inflict  any harm even extending to  

37

death on his assailant either when the assault is  

attempted or directly threatened.     

59. The High Court in the impugned judgment has reversed  

the  trial  court’s  judgment  of  acquittal  and  convicted  the  

accused.  Admittedly, Darshan Singh fired from his 12-bore  

double barrel gun which had a number of pellets.  The High  

Court disbelieved the trial court’s version that Gurdish Singh  

and Gurdev Singh did not receive fire arm injuries because no  

pellet  or  pellets  were  recovered from their  bodies.    In  the  

impugned  order,  the  High  Court  without  giving  any  cogent  

reasons has set aside the well considered judgment of the trial  

court.

60. In our view, when a shot was fired from a 12-bore gun  

and if no pellet was recovered, then the trial court is not wrong  

in arriving at the conclusion that the injuries were not caused  

by a fire arm.   The High Court on this point discarded the  

reasoning of the trial court without any sound basis.    

61. The High Court gave the finding that “since it is a case of  

dual version, one given by the complainant, who appears to be  

a truthful witness when he has not concealed the role of his  

38

father and explained the injury of Bakhtawar Singh.  On the  

contrary,  the  accused  persons  have  come  with  untenable  

defence.”  While arriving at this conclusion, the High Court in  

the impugned judgment has not followed the consistent legal  

position  as  crystallized  by  various  judgments  of  this  Court.  

The High Court or the Appellate Court would not be justified  

in setting aside a judgment of acquittal  only on the ground  

that the version given by the complainant is more truthful.    

62. In a case of acquittal, if the trial court’s view is a possible  

or plausible view, then the Appellate Court or the High Court  

would not be justified in interfering with it.  It is the settled  

legal position that there is presumption of innocence and that  

presumption  is  further  fortified  with  the  acquittal  of  the  

accused by the trial  court. The Appellate Court or the High  

Court  would  not  be  justified  in  reversing  the  judgment  of  

acquittal  unless  it  comes  to  a  clear  conclusion  that  the  

judgment of the trial court is utterly perverse and, on the basis  

of  the  evidence  on  record,  no  other  view  is  plausible  or  

possible than the one taken by the Appellate Court or the High  

Court.

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63. The  High  Court  has  unnecessarily  laid  stress  on  the  

point of recovery of the gun at the instance of Darshan Singh.  

The accused has not  denied  the incident.   The  case  of  the  

defence is  that their  case is  covered by the  right  of  private  

defence.  Darshan Singh in his statement under Section 313 of  

the Code of Criminal Procedure, 1908 has admitted that he  

had fired from his licensed gun in his right of private defence.  

The  High  Court  without  properly  comprehending  the  entire  

evidence on record reversed the well reasoned judgment of the  

trial court.   

64. In the instant case after marshalling and scrutinizing the  

entire prosecution evidence, we are clearly of the view that the  

trial court’s view is not only the possible or plausible view but  

it is based on the correct analysis and evaluation of the entire  

evidence  on  record.   Rationally  speaking,  no  other  view  is  

legally possible.

65. Consequently, this appeal is allowed and the impugned  

judgment of the High Court is set aside and the judgment of  

acquittal of the trial court is restored. The role attributed to  

the appellant is fully covered by his right of private defence.  

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Consequently, the appellant is acquitted.  The appellant was  

released on bail by this Court.  He need not surrender.   The  

appeal is accordingly allowed and disposed of.

……...............................J.                        (Dalveer Bhandari)

...…...............................J.                           (Asok Kumar Ganguly)

                            New Delhi;    January 15, 2010

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