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CASE NO.: Appeal (crl.)  143 of 2006

PETITIONER: DHARAM & OTHERS

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT: 08/12/2006

BENCH: A.K. MATHUR & D.K. JAIN

JUDGMENT: J U D G M E N T

D.K. JAIN, J.:

               The three appellants, namely, Dharam, Raj Singh  and Raj Kumar, alongwith two others, Kitaba and  Bijender, faced trial in Sessions case No. 135 of 1994  (Sonipat) for having committed offences under Sections  148, 302, 323 and 324/149 of the Indian Penal Code,  1860 (for short "IPC").  The Trial Court found them guilty;  convicted them for offences punishable under all the  aforementioned Sections and sentenced them to suffer  the following punishments: "OFFENCES PUNISHMENT 148 IPC To undergo RI for two years and to  pay a fine of Rs.5000/- each and in  default thereof to undergo RI for six  months. 302/149 IPC To undergo RI for life as also to pay  a fine of Rs.20,000/- each and in  default thereof to undergo RI for  three years 324/149 IPC To undergo RI for two years as also  to pay a fine of Rs.5000/- each and  in default thereof to undergo RI for  six months 323/149 IPC To undergo RI for six months"

All the convicts preferred common appeal to the Punjab  and Haryana High Court, but were unsuccessful.  This  appeal by special leave is brought by the three appellants  before us against the order of the High Court. 2.      The appellants and the deceased are closely related.   Appellant no.1, including the deceased - Partap Singh,  were seven brothers, out of whom he and four others  were from one mother and two from the other. The case  set up by the prosecution, in brief, was that on  16.7.1999 Amarjit (PW-8) son of the deceased made a  statement before the S.H.O., Police Station Gohana to  the effect that Partap Singh along with his four brothers  from one mother were having a joint khewat. One of the  brothers, namely, Haria was unmarried and was living  with his father, who also used to cultivate the share of

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land belonging to Haria.  However, his uncle, appellant  no.1 and his sons, Raj Singh and Raj Kanwal (as per  High Court Judgement), appellants no.2 and 3  respectively as well as Kitaba, his uncle and Bijender s/o  Kitaba were holding a grudge against his father, the  deceased, for not partitioning the land belonging to  Haria. A day before the incident all of them had asked  his father to divide the land of Haria, failing which he  would not be allowed to see the sun of the next day.  On  16.7.1999 at about 6.00 a.m., he alongwith his mother  and father - the deceased, his uncles Jagdish and  Raghbir had gone to the fields to fetch grass; all the  aforementioned five persons came to the fields belonging  to the deceased and his brothers and started erecting a  boundary wall; when they were stopped from doing so,  all the five went towards their tube well and came back  with arms, namely, Phali and Farsas; Dharam raised a  Lalkara to teach a lesson to the deceased’s party for not  permitting the raising of boundary, upon which Bijender  gave a spear blow on the head of the deceased whereas  Raj Singh gave second spear blow on the head of the  deceased; when he and others intervened, Bijender hit  him with a spear in the right arm.  Raj Kumar and  Dharam (as per the Trial Court Judgment) also gave  spear blows on the head of the deceased, as a result  whereof he fell down and when his uncle Raghbir  intervened, Kitaba inflicted a Phali blow on the left side  of his chest.  In the meanwhile, crowd gathered at the  spot and on seeing them all the five accused fled  alongwith their respective weapons.  The deceased was  brought to Civil Hospital, Gohana where he was declared  brought dead.  Dr. Rajesh Kumar, PW-12 conducted the  post mortem on the dead body of the deceased and found  the following injuries on his person: "On left parietal bone 10cmx3cmx3cm wound.  Edges of the wound were well delineated.   Underlying bone was fractured and fractured  bone had pierced the brain matter.  Posterior  to this wound, there was  horizontal    wound  3 cm x 1 cm on scalp and just behind this  wound there was 4 cm x 2 cm lacerated  wound."

He also examined Dharam, appellant no.1, Raj Kumar,  appellant no.3, Ranbir and Kitaba and found various  injuries on their person. A major injury found on the  person of Dharam was "Incised wound 2cm x 1cm x 5cm  deep on left upper part of chest, just lateral to sternum"    and that on Kitaba a "5 x 5 cm wound right  hypochondrium. Depth of the wound could not be  ascertained." 3.      In support of its case, the prosecution examined as  many as 13 witnesses.  In their statements made under  Section 313 of the Code of Criminal Procedure, 1973, the  appellants, without disputing their presence or  participation in the fight, took a common plea of self  defence in the following terms:  "On the day of alleged occurrence, Partap  Singh deceased and his son Amarjeet started  the tubewell of Dharma for irrigation of their  fields without his permission and when he  protested and switched off the electricity,  Partap armed with Farsa and Amarjeet armed  with jelly attacked him.  On his alarm, we  reached there and tried to save him from them.  

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They were also assaulted by the complainant  side and he was given as many as six injuries  by Farsa.  Dharma picked up a Farsa lying by  the side of Kotha of tubewell and caused only  one injury to Partap deceased and Amarjeet to  save himself and also to save to me and  Kitaba.  Partap Singh died at the spot and we  took his dead body first to the police and police  of police station Gohana had taken the dead  body of Partap Singh to PHC, Gohana.  I am  innocent and falsely implicated in this case."

4.      Rejecting the plea of private defence, the learned  Trial Court came to the conclusion that the appellants,  armed with deadly weapons, with the common intention  to commit murder, had attacked the deceased as well as  his other family members, including the complainant and  were, thus, guilty of offences under the aforementioned  Sections.  Analysing the evidence, as noted above, the  High Court has concluded that the conviction was  justified. 5.      Mr. Jaspal Singh, learned senior counsel, appearing  for the appellants has assailed the conviction of the  appellants mainly on the ground that the plea of self  defence raised by the appellants has not been considered  in its correct perspective both by the Trial Court as well  as the High Court. It is argued that in fact the High Court  has altogether failed to consider this aspect of the matter.  It is submitted that in the incident, in which the two  parties clashed and there were allegations of assaults on  each other, it was the duty of the prosecution to have  explained the injuries sustained by the appellants,  particularly appellant no. 1, who had six serious injuries  on his person.  It is urged that non-explanation of the  injuries sustained by the members of the accused party  shows that the prosecution has not come out with the  truthful version of the incident and has suppressed the  genesis of the crime. Learned counsel has drawn our  attention to the evidence of PW-12, who had examined  appellants No. 1 and 3 and other members of their party,  to buttress the argument that the nature of injuries  sustained by the appellants indicate that they had  suffered injuries in exercise of right of private defence.  In  the alternative, learned senior counsel has contended  that it being a case of sudden fight, the case falls within  the ambit of sub-section (4) of Section 300 IPC and,  therefore, at best offence under Section 304 part-I or II  could be made out against the appellants. 6.      Per contra, learned counsel appearing for the State,  while supporting the impugned judgment, has contended  that the appellants armed with deadly weapons and with  the common intention to murder had attacked the  deceased’s party and, therefore, being the aggressors, the  plea of self defence was not available to them. 7.      Thus, the question which falls for our consideration  in this appeal lies within a narrow compass.  The  question is whether or not the appellants had assaulted  the deceased and his party in exercise of the right of  private defence?    8.      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

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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 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.   9.      The scope of right 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 Punjab ). 10.     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 not of self creation.  Necessity must be present,  real or apparent (See: Laxman Sahu vs. State of  Orissa ). 11.     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. 12.     It is trite 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

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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 (See:  Munshi Ram and others vs. Delhi Administration ;  The State of Gujarat vs. Bai Fatima and another  and  Salim Zia vs. State of Uttar Pradesh ). 13.     In order to find out whether right of private defence  is available or not, 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  abstract proposition of law that whenever injuries are on  the body of the accused person, the presumption must  necessarily be raised that the accused person had caused  injuries in exercise of the 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.  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’s case  in all cases (See: Sekar alias Raja Sekharan vs. State  represented by Inspector of Police, Tamil Nadu  and  V. Subramani and another vs. State of Tamil Nadu ). 14.     In the light of the legal position, briefly noted above,  we proceed to examine as to whether it could be said that  the appellants had assaulted the deceased and other  members of his family in exercise of their right of private  defence? 15.     The plea of self defence has been rejected by the  Trial Court, inter alia, observing that the danger was to  the life of the deceased and his party and not to the  appellants.  However, the High Court has dealt with the  issue more elaborately. Referring to the testimony of  investigating officer S.I. Amardas (PW-7) and Rajinder  Singh Patwari (PW-6) who had prepared the site plan  (Exhibit-PC) after identification of place of occurrence by  PW-10, the High Court has recorded a clear finding that  the plea of the appellants that the occurrence took place  on or near their tube-well had been completely  demolished by the prosecution.  The High Court has  affirmed the finding recorded by the Trial Court that the  occurrence had taken place in the fields belonging to the  deceased Partap and his family.  Besides, the statement  of the appellants recorded under Section 313 Criminal  Procedure Code, 1973, extracted above, proves their  presence and participation in the fight. These two factors  clearly prove that the appellants went and attacked with  lethal weapons the deceased and his family members in  the latter’s fields.  We are convinced that in the light of  the evidence on record they were the aggressors.  Thus,  being members of the aggressors’ party none of the  appellants can claim right of self-defence.  As observed  herein above, right to defend does not include a right to  launch an offensive or aggression.  Therefore, we have no  hesitation in holding that the appellants have failed to  establish that they were exercising right of private  defence.  16.     The other question which now remains to be

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considered is as to what is the exact nature of the offence  committed by the appellants.  The injury, which proved  to be fatal, is 10cmx3cmx3cm on left parietal bone which  fractured the underlying bone and pierced the brain  matter.  We do not propose to hold that such an injury, if  caused, would not attract the provisions of Section 302  IPC.  Nevertheless, the question which requires serious  consideration is whether having regard to the peculiar  circumstances in which the incident took place and the  fact that the deceased and the appellants happened to be  blood relations, this particular injury, which was found  to be sufficient in the ordinary course of nature to cause  death in the instant case, was an injury intended by the  appellants.  Having regard to the nature of the injuries  sustained by both the closely related parties, we are of  the view that the fatal injury was not inflicted with the  intention to cause death or an injury likely to cause  death of the deceased.  We feel that in the very nature of  things, the appellants could not have entertained any  intention to cause death of their brother/uncle.  We are,  therefore, of the opinion that the offence committed by  the appellants would fall within the ambit of Section 304  Part-II IPC. 17.     Consequently, we partly allow the appeal; set aside  the conviction of the appellants under Section 302 IPC  and instead convict them under Section 304 Part-II IPC.  Sentence of rigorous imprisonment for seven years would  meet the ends of justice.  Other sentences awarded to  them would remain unaltered and shall run  concurrently.