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CASE NO.: Appeal (crl.)  835 of 2007

PETITIONER: Krishna & Anr.

RESPONDENT: State of U.P.

DATE OF JUDGMENT: 21/06/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T  

CRIMINAL APPEAL NO.  835          OF  2007 (Arising out of SLP (Crl.) NO. 3403 of 2006)

Dr. ARIJIT PASAYAT, J.

1.      Leave granted.  

2.      Challenge in this appeal is to the judgment of a Division  Bench of the Allahabad High Court dismissing the appeal filed  by the appellants. The trial Court i.e. learned IInd Additional   Judge, Banda by his judgment dated 25.3.1981 found the  appellant Krishna guilty of  offence punishable under Section  302 of the Indian Penal Code, 1860 (in short the ’IPC’) and  Section 307 and sentenced him to undergo RI for life and  seven years respectively for the aforesaid offences. Though he  was found guilty of offence punishable under Section 323 IPC  read with Section 34 IPC no separate sentence was awarded to  him. Accused Sumera who was convicted for offences  punishable under Section 302, 307, 323 read with Section 34  IPC has died. Appellant Kaira was similarly convicted.  Sentence of imprisonment for life, three years and six months  were respectively imposed for the above said offences. All the  three accused persons preferred an appeal but since the  appellant Sumera died during the pendency of the appeal,  appeal was held to have abated so far as he is concerned.  

3.      Background facts as projected by prosecution in a  nutshell are as follows:

Appellants Krishna and Kaira are real brothers and are  the sons of Sumera.  Ram Manohar (PW-1) complainant and  Chunua Chamar (hereinafter referred to as the ’deceased’)  were real brothers. Both the parties are residents of the same  village Piprenda, P.S. Tindwari, District Banda and are  neighbours. Appellant Kaira borrowed Rs.350/- from deceased  about 5 month prior to the occurrence, i.e.  8th July, 1980,  about 7.15 a.m. Two days prior to the occurrence deceased  demanded his money from Kaira, who not only refused to  return the money but also denied to have borrowed any money  from the deceased. On the following day again deceased  demanded his money from Kaira and being enraged by this,  accused Sumera, Krishna and Kaira quarrelled with deceased  and Ram Manohar and chased to beat them. The deceased  and Ram Manohar somehow managed to escape themselves by

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running away. On the fateful day i.e. 8.7.1980, deceased  alongwith Ram Manohar (PW-1) in the morning after attending  the call of nature went to Shripal Kori for seeking his advice as  what should be done in the matter. Shripal advised him not to  fight, but to lodge a complaint with the police. From the house  of Shripal, deceased and Ram Manohar came to their house  and without taking breakfast both of them proceeded to police  outpost Chilla.  Smt. Ram Pyari (PW-3), wife of deceased also  followed them. It was about 7.15 a.m. when deceased and  Ram Manohar reached near the field of Chunua Kanchi, which  was in the west of rasta, accused Krishna armed with  "Barchi", Sumera and Kaira armed with lathis came there from  the eastern side.  Accused persons started abusing   deceased  and his brother Ram Manohar. Deceased and Ram Manohar  retaliated by abusing them.   Shiv Baran Singh (PW-2) reached  there. Sumera gave lathi  blow to deceased. When Shiv Baran  Singh (PW-2) tried to intervene, appellant-Kaira gave lathi blow  which hit him causing injury to his hand. When Ram Manohar  (PW-1) tried to save and intervene Krishna gave Barchhi blow  causing injury to him. Appellant-Krishna exhorted to eliminate  Chunua. Thereupon Sumera gave lathi blow to deceased and  Kaira also gave lathi blow. Krishna  gave barchhi blow causing  injury to deceased who fell  down and died then and there in  the field of Chunua Kanchi. On the hue and cry Surajpal,  Arjun and many other villagers collected there. These persons  chased the accused who run away towards the west. Leaving  Smt. Rampyari near the dead body, after getting report drafted  from Dasharath, Ram Manohar (P.W.1) accompanied by  Shiv  Baran Singh (PW-2) injured and, other village persons,  proceeded to the police out post Chilla, P. S. Tindwari,  District  Banda which was about 18 or 20 kms.  from the village  Piprendha.  There  Ram Manohar (PW-1) handed-over the  written report. On the basis of written report a case crime no.  123 of 1980 was registered at 8.45 am. on 8.7.1980, under  Sections 302, 307, 504 IPC against all the three accused i.e.  Sumera, Krishna and Kaira.  Om Shankar Shukla (PW-6),  I.0.  of the case who was Incharge of the police out post,  took up  investigation, recorded the statements of injured Ram  Manohar (P.W.l) and injured Shiv Baran Singh (PW-2) and  sent them for medical examination to district hospital Banda.

4.      After the investigation was completed, charge sheet was  filed. Charges were framed and the accused persons faced  trial. Placing reliance on the evidence of the witnesses,  the  trial Court recorded the conviction and imposed sentence.  Before the High Court a plea was taken that the accused had  exercised the right of private defence; therefore, the conviction  as done was not maintainable. High Court did not accept this  plea and observed that since the accused persons were  aggressors and in fact attacked the deceased first the question  of exercise of right of private defence did not arise.  Accordingly, the appeal was dismissed.  

5.      In support of the appeal, learned counsel for the  appellants submitted that the High Court has erroneously  held that the right of private defence was not exercised by the  appellants.  

6.      Learned counsel for the State on the other hand  submitted that the courts below have categorically found that  the appellants were aggressors and attacked the deceased  first.  

7.      Only question which needs to be considered, is the  alleged exercise of right of private defence. Section 96, IPC

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provides that nothing is an offence which is done in the  exercise of the right of private defence. The Section does not  define the expression ’right of private defence’. It merely  indicates that nothing is an offence which is done in the  exercise of such right. Whether in a particular set of  circumstances, a person legitimately acted in the exercise of  the right of private defence is a question of fact to be  determined on the facts and circumstances of each case.  No  test in the abstract for determining such a question can be  laid down.  In determining this question of fact, the Court  must consider all the surrounding circumstances.  It is not  necessary for the accused to plead in so many words that he  acted in self-defence. If the circumstances show that the right  of private defence was legitimately exercised, it is open to the  Court to consider such a plea.  In a given case the Court can  consider it even if the accused has not taken it, if the same is  available to be considered from the material on record. Under  Section 105 of the Indian Evidence Act, 1872 (in short ’the  Evidence Act’), the burden of proof is on the accused, who sets  up the plea of self-defence, and, in the absence of proof, it is  not possible for the Court to presume the truth of the plea of  self-defence. The Court shall presume the absence of such  circumstances. It is for the accused to place necessary  material on record either by himself adducing positive  evidence or by eliciting necessary facts from the witnesses  examined for the prosecution. An accused taking the plea of  the right of private defence is not necessarily required to call  evidence; he can establish his plea by reference to  circumstances transpiring from the prosecution evidence  itself.  The question in such a case would be a question of  assessing the true effect of the prosecution evidence, and not a  question of the accused discharging any burden.  Where the  right of private defence is pleaded, the defence must be a  reasonable and probable version satisfying the Court that the  harm caused by the accused was necessary for either warding  off the attack or for forestalling the further reasonable  apprehension from the side of the accused. The burden of  establishing the plea of self-defence is on the accused and the  burden stands discharged by showing preponderance of  probabilities in favour of that plea on the basis of the material  on record. (See Munshi Ram and Ors. v. Delhi Administration  (AIR 1968 SC 702), State of Gujarat v. Bai Fatima (AIR 1975  SC 1478), State of U.P. v. Mohd. Musheer Khan (AIR 1977 SC  2226), and Mohinder Pal Jolly v. State of Punjab (AIR 1979 SC  577). Sections 100 to 101 define the extent of the right of  private defence of body. If a person has a right of private  defence of body under Section 97, that right extends under  Section 100 to causing death if there is reasonable  apprehension that death or grievous hurt would be the  consequence of the assault.  The often quoted observation of  this Court in Salim Zia v. State of U.P. (AIR 1979 SC 391),  runs as follows:

"It is true that the burden on an accused  person to establish the plea of self-defence is  not as onerous as the one which lies on the  prosecution and that, while the prosecution is  required to prove its case beyond reasonable  doubt, the accused need not establish the plea  to the hilt and may discharge his onus by  establishing a mere preponderance of  probabilities either by laying basis for that  plea in the cross-examination of the  prosecution witnesses or by adducing defence  evidence."

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8.      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. 9.      The number of injuries is not always a safe criterion for  determining who the aggressor was.  It cannot be stated as a  universal rule that whenever the injuries are on the body of  the accused persons, a presumption must necessarily be  raised that the accused persons had caused injuries in  exercise of the right of private defence. The defence has to  further establish that the injuries so caused on the accused  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 case  in all cases.  This principle applies to cases where the injuries  sustained by the accused are minor and superficial or where  the evidence is so clear and cogent, so independent and  disinterested, so probable, consistent and credit-worthy, that  it far outweighs the effect of the omission on the part of the  prosecution to explain the injuries. [See Lakshmi Singh v.  State of Bihar (AIR 1976 SC 2263)]. A plea of right of private  defence cannot be based on surmises and speculation. While  considering whether the right of private defence is available to  an accused, it is not relevant whether he may have a chance to  inflict severe and mortal injury on the aggressor. In order to  find whether the right of private defence is available to an  accused, the entire incident must be examined with care and  viewed in its proper setting. Section 97 deals with the subject  matter of right of private defence. The plea of right comprises  the body or property (i) of the person exercising the right; or (ii)  of any other person; and the right may be exercised in the case  of any offence against the body, and in the case of offences of  theft, robbery, mischief or criminal trespass, and attempts at  such offences in relation to property. Section 99 lays down the  limits of the right of private defence. Sections 96 and 98 give a  right of private defence against certain offences and acts. The  right given under Sections 96 to 98 and 100 to 106 is  controlled by Section 99. To claim a right of private defence  extending to voluntary causing of death, the accused must  show that there were circumstances giving rise to reasonable  grounds for apprehending that either death or grievous hurt  would be caused to him. The burden is on the accused to  show that he had a right of private defence which extended to  causing of death. Sections 100 and 101, IPC define the limit  and extent of right of private defence.

10.     Sections 102 and 105, IPC deal with commencement and  continuance of the right of private defence of body and  property respectively. The right commences, as soon as a  reasonable apprehension of danger to the body arises from an  attempt, or threat, or commit the offence, although the offence  may not have been committed but not until there is that  reasonable apprehension.  The right lasts so long as the  reasonable apprehension of the danger to the body continues.   In Jai Dev. v. State of Punjab (AIR 1963 SC 612), it was  observed that as soon as the cause for reasonable  apprehension disappears and the threat has either been  destroyed or has been put to route, there can be no occasion  to exercise the right of private defence.

11.     In order to find whether right of private defence is

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available or not, the injuries received by the accused, the  imminence of threat to his safety, the injuries caused by the  accused and the circumstances whether the accused had time  to have recourse to public authorities are all relevant factors to  be considered. Similar view was expressed by this Court in  Biran Singh v. State of Bihar (AIR 1975 SC 87). (See: Wassan  Singh v. State of Punjab (1996) 1 SCC 458, Sekar alias Raja  Sekharan v. State represented by Inspector of Police, T.N.  (2002 (8) SCC 354).

12.     As noted in Butta Singh v. The State of Punjab (AIR 1991  SC 1316), a person who is apprehending death or bodily injury  cannot weigh in golden scales in the spur of moment and in  the heat of 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-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.

13.     The right of self-defence is a very valuable right, serving a  social purpose and should not be construed narrowly. (See  Vidhya Singh v. State of M.P. (AIR 1971 SC 1857).  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.             

14.     In the illuminating words of Russel (Russel on Crime,  11th Edition Volume I at page 49):

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

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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."

15.     The right of private defence is essentially a defensive  right circumscribed by the governing statute i.e. the IPC,  available only when the circumstances clearly justify it. It  should not be allowed to be pleaded or availed as a pretext for  a vindictive, aggressive or retributive purpose of offence.  It is  a right of defence, not of retribution, expected to repel  unlawful aggression and not as retaliatory measure.  While  providing for exercise of the right, care has been taken in IPC  not to provide and has not devised a mechanism whereby an  attack may be a pretence for killing. A right to defend does not  include a right to launch an offensive, particularly when the  need to defend no longer survived.         

16.     In view of the factual findings recorded by the courts  below we find no reason to differ from the conclusion that the  appellants were the aggressors and attacked the deceased  first.  The prosecution version is that death of the deceased  took place in course of the said incident. The question of  exercising any right of private defence as claimed by the  appellants is without any substance.  

17.     The appeal is sans merit, deserves dismissal which we  direct. We record our appreciation for the able assistance  rendered by Mr. Rakesh Garg, learned Amicus Curiae.