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CASE NO.: Appeal (crl.)  1224 of 2006

PETITIONER: Naveen Chandra

RESPONDENT: State of Uttranchal

DATE OF JUDGMENT: 27/11/2006

BENCH: ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T  (Arising out of SLP (Crl.) No. 3227of 2006)

ARIJIT PASAYAT, J.

       Leave granted.

       Challenge in this appeal is to the judgment rendered by a  Division Bench of the Uttaranchal High Court dismissing the  appeal filed by the appellant while allowing the appeals filed  by two others i.e. parents of the appellant. Appellant was  convicted for offence punishable under Section 302 of the  Indian Penal Code, 1860, (in short the ’IPC’) read with Section  34 of the IPC. While the appellant was awarded death  sentence, the other two were sentenced to undergo  imprisonment for life.  All the three accused persons were  convicted for offence punishable under Section 302 read with  Section 34 IPC.  In view of the award of death sentence a  reference was made to the High Court for confirmation in  terms of Section 366 of the Code of Criminal Procedure, 1973  (in short the ’Code’). By the impugned judgment the High  Court directed acquittal of accused Smt. Kamla Devi and  accused Sh. Nanda Ballabh and the death sentence was  converted to life imprisonment and the appeal filed by the  present appellant was partly allowed.   

The background facts in a nutshell are as follows:

       All the three accused came to be tried by the Sessions  Judge, Bageshwar in Session Trial No. 30 of 2001, wherein all  the three accused were charged for an offence under Section  302 read with Section 34 IPC on the allegation that on  2.6.2001, the three accused persons in furtherance of their  common intention, had committed murder of Ganesh Dutt s/o  Prem Ballabh, Smt. Janki Devi w/o Ganesh Dutt and Sandeep  s/o Ganesh Dutt (each of them hereinafter described as  deceased by respective name). While the accused persons were  the husband, wife and son, the deceased were also the  husband, wife and son.  Interestingly, original accused No. 1  Nanda Ballabh is the real brother of the deceased Ganesh  Dutt. Relationships between the two brothers, namely, original  accused No.1 Nanda Ballabh and the deceased Ganesh Dutta  were strained on account of family matters.  They were all  residents of the Village Baira Majhara, Tehsil Kapkot, District  Bageshwar and their houses are almost adjoining to each

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other. On the fateful day i.e. on 2.6.2001, there was an  altercation between Nanda Ballabh & his family members on  one hand and deceased Ganesh Dutt and his family members  on the other during the day time in which deceased Ganesh  Dutta received an injury to his head. Conciliation was to be  arranged through a panchayat at the instance of original  accused No.1 Nanda Ballabh, who had sought the intervention  of Bhupal Dutta and others on the ground that his brother  deceased Ganesh Dutta was continuously troubling him and  continuously hurling abuses. This was at 7.00 a.m. and  thereafter, there was an altercation during the day time.   Bhupal Dutta, therefore, went along with some others to the  house of original accused No.1 Nanda Ballabh where 7 or 8  other persons were already present.  This was at about 5.00  p.m.  At the instance of original accused No.1 Nanda Ballabh,  Ganesh Dutt was called by Bhupal Dutt, one Bishan Dutt and  Govind Ballabh.  They found   that Ganesh Dutt already had  an injury on his head, yet he came along with them to the  courtyard in between the houses of original accused No.1  Nanda Ballabh and the deceased Ganesh Dutt. On being  asked as to what the dispute between the two brothers was  about, deceased Ganesh Dutt allegedly lost his temper and  started abusing the original accused No.1 Nanda Ballabh.   Thereafter, the persons, who were there, took him back to his  house.  However, deceased Ganesh Dutt, again came back and  held the hand of his sister in law i.e. original accused No.2.   After this, there was an altercation between original accused  No.1 Nanda Ballabh.  In the meantime, original accused No.3  appellant-Naveen Chandra rushed and injured deceased  Ganesh Dutt on his head by a weapon called "Khukri".   Deceased Smt. Janki Devi w/o Ganesh Dutt, also came there  praying to spare deceased Ganesh Dutt, but she was also  attacked by the original accused No. appellant-Naveeen  Chandra on her face and head.  Though the persons present  requested original accused No. 3, appellant-Naveen Chandra  to spare the others, he ran up to the house of deceased  Ganesh Dutt, where Ganesh Dutt’s son Sandeep Dutt, namely,  Manish Kumar (PW-3) took to his heels while the other son  Mukesh hid himself.  Deceased Ganesh Dutt died on the spot  while his wife Smt. Janki Devi and son Sandeep were seriously  injured.  The Gram Pradhan was called and the injured were  kept in the Varanda of Ganesh Dutt’s house, but they also  died during the same night.

       A report came to be made of this incident by Pooran  Chandra  who was at the relevant time, the Up-pradhan (Vice  Chairman) of the Village.  This report was prepared on  2.6.2001 and was handed over, in which it was suggested that  the accused persons had committed the murder of three  deceased persons on account of the old rivalry.  On this, the  usual investigation was started after the case was registered  against the accused persons for offence under Section 302  IPC.  The Investigation Officer Rahim Ahmed (PW-6) who was  the patwari, has the police powers and he proceeded to the  spot and conducted the usual investigation by conducting  Panchnamas as also by inspecting the spot.  He also sent the  dead bodies for post mortem.  Eventually, the accused persons  came to be arrested.  The Investigating Officer Rahim Ahmed  also recorded the statements of number of witnesses including  the eye witnesses and the charge sheet was filed against the  accused persons.

       Eight witnesses were examined to further the prosecution  version, while accused persons who pleaded innocence,  examined one witness. Bhopal Dutta  (PW-2) and Manish, the

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child witness (PW-3) were claimed to be eye-witnesses. Though  Pooran (PW-1) the informant partially resiled from his  statement made during investigation he confirmed having  lodged the FIR.

       Accused persons pleaded grave and sudden provocation  exercise of right of private defence and the occurrence having  taken place during sudden quarrel, where deceased persons  were the aggressors.  

       Placing reliance on the evidence adduced, the trial court  directed conviction and imposed sentence as afore-stated. As  noted above, challenge was made before the High Court.  The  High Court did not accept the stand of the appellant that the  attack, if any made, was on account of grave and sudden  provocation and/or that it took place in course of sudden  quarrel and/or in exercise of right of private defence,  and  therefore there was no offence committed and trial court had  erroneously held that Section 302 IPC was attracted.  The  High Court did not accept plea and confirmed the view  expressed by the trial court. It however directed acquittal of  two of the accused persons  

       In support of the appeal, learned counsel for the  appellant reiterated the stand taken by the High Court.   Learned counsel for the respondent-State on the other hand  submitted that the High Court was rather liberal in altering  the death sentence to life imprisonment and had rightly held  that the concept of grave and sudden provocation or the  occurrence taking place in course of sudden quarrel or in  exercise of right of private defence, has been rightly turned  down.

The Fourth Exception of Section 300, IPC covers acts  done in a sudden fight.  The said exception deals with a case  of prosecution not covered by the first exception, after which  its place would have been more appropriate.  The exception is  founded upon the same principle, for in both there is absence  of premeditation. But, while in the case of Exception 1 there is  total deprivation of self-control, in case of Exception 4, there is  only that heat of passion which clouds men’s sober reason and  urges them to deeds which they would not otherwise do.   There is provocation in Exception 4 as in Exception 1; but the  injury done is not the direct consequence of that provocation.  In fact Exception 4 deals with cases in which notwithstanding  that a blow may have been struck, or some provocation given  in the origin of the dispute or in whatever way the quarrel may  have originated, yet the subsequent conduct of both parties  puts them in respect of guilt upon equal footing.  A ’sudden  fight’ implies mutual provocation and blows on each side.  The  homicide committed is then clearly not traceable to unilateral  provocation, nor in such cases could the whole blame be  placed on one side. For if it were so, the Exception more  appropriately applicable would be Exception 1.    The help of Exception 4 can be invoked if death is caused  (a) without premeditation, (b) in a sudden fight; (c) without the  offender’s having taken undue advantage or acted in a cruel or  unusual manner; and (d) the fight must have been with the  person killed. To bring a case within Exception 4 all the  ingredients mentioned in it must be found. It is to be noted  that the ’fight’ occurring in Exception 4 to Section 300, IPC is  not defined in the IPC. It takes two to make a fight.  Heat of  passion requires that there must be no time for the passions  to cool down and in this case, the parties have worked

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themselves into a fury on account of the verbal altercation in  the beginning. A fight is a combat between two and more  persons whether with or without weapons. It is not possible to  enunciate any general rule as to what shall be deemed to be a  sudden quarrel. It is a question of fact and whether a quarrel  is sudden or not must necessarily depend upon the proved  facts of each case.  For the application of Exception 4, it is not  sufficient to show that there was a sudden quarrel and there  was no premeditation.  It must further be shown that the  offender has not taken undue advantage or acted in cruel or  unusual manner.  The expression ’undue advantage’ as used  in the provision means ’unfair advantage’.     

       Where the offender takes undue advantage or has acted  in a cruel or unusual manner, the benefit of Exception 4  cannot be given to him.  If the weapon used or the manner of  attack by the assailant is out of all proportion, that  circumstance must be taken into consideration to decide  whether undue advantage has been taken.  In Kikar Singh v.  State of Rajasthan  (AIR 1993 SC 2426) it was held that if the  accused used deadly weapons against the unarmed man and  struck a blow on the head it must be held that using the blows  with the knowledge that they were likely to cause death, he  had taken undue advantage.  In the instant case blows on  vital parts of unarmed persons were given with brutality.  The  abdomens of two deceased persons were ripped open and  internal organs come out.  In view of the aforesaid factual  position, Exception 4 to Section 300 I.P.C. has been rightly  held to be inapplicable.         The above position was highlighted in  Babulal Bhagwan  Khandare and Anr. V. State of Maharashtra [2005(10 SCC  404]. Considering the background facts in the backdrop of   legal principles as  set out above, the inevitable conclusion is  that 4th Exception to Section 300 IPC does not apply.  Only other question which needs to be considered is the  alleged exercise of right of private defence. Section 96, IPC  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

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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 oft 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."

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.

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

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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.

Sections 102 and 105, IPC deal with commencement and  continuance of the right of private defence of body and  property respectively. The right commences, as soon as a  reasonable apprehension of danger to the body arises from an  attempt, or threat, to commit the offence, although the offence  may not have been committed but not until 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.

In order to find 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. 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).

       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

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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.

       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.             

       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  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."

       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. (See: V. Subramani and  Anr. v. The State of Tamil Nadu   (2005 (10) SCC 358).      

Considering the background facts as highlighted above  when tested in the backdrop of the legal principles noted  supra the inevitable conclusion is that though the accused  person was exercising right of private defence, but had  exceeded the same by continuing the attacks after the threat  to live had ceased.

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Therefore, this appears to be a case where Section 304  Part I would be the applicable provision. The conviction is  altered accordingly. Ten years custodial sentence would meet  the ends of justice.

Therefore, this appears to be a case where Section 304  Part I would be the applicable provision. The conviction is  altered accordingly. Ten years custodial sentence would meet  the ends of justice.

       The appeal is allowed to the aforesaid extent.