REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 181 OF 2001

Ram Pyare Mishra ...Appellant

Versus

Prem Shanker and Ors. ...Respondents

WITH

CRIMINAL APPEAL NO.182 OF 2001

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge  in  these  appeals  is  to  the  judgment  of  a

Division  Bench of  the  Allahabad High Court   accepting  the

appeal  filed  by  the  respondents  who  were  found  guilty  of

offences punishable under Section 302 read  with Section 34

of the Indian Penal Code, 1860 (in short the ‘IPC’). The High

Court held that if on taking overall view of the case  right of

self defence is made out or looks probable from the evidence

on  record,  that  right  should  not  be  construed  narrowly

because the right of  self defence is a very valuable right and it

has a social purpose.  

2. Background  facts  as  projected  by  prosecution  in  a

nutshell are as follows:

The incident occurred on 12.7.1978 at about 5.30 a.m.

The respondents 1 and 2 are brothers and sons of Sheo Balak

Misra.  On  the  aforesaid  date  and  time  the  accused

respondents armed with knife and lathi respectively arrived at

the ‘Gotha’ of the Mohan Mishra (hereinafter referred to as the

‘deceased’)  and  accused  Hari  Shanker   started  beating  the

deceased with lathi and also asked his brother Prem Shanker

to kill him, whereupon Prem Shanker assaulted the deceased

with knife. On hearing the cries of deceased, his brother R.P.

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Mishra (PW-1) who was washing his hands at the Hand Pump

installed in the east of  ‘Gotha' of Ramakant Mishra, rushed to

the scene of  occurrence.  The cries also  attracted Ramakant

Mishra  (P.W.2),  Suresh  Mishra  (P.W.4),  Shiv  Sahai  and

Vibhuti  Mishra.  Ramakant  Mishra  tried  to  rescue  the

deceased  but  he  too  was  assaulted  by  Prem Shanker  with

knife.  Deceased  fell  down  on  the  ground.  The  witnesses

succeeded in apprehending Prem Shanker along with the knife

with  which  he  had  assaulted  the  deceased  and  Ramakant.

However, accused Hari Shanker succeeded in making good his

escape.  Thereafter  Ram  Pyare  Mishra  and  other  witnesses

proceeded to Police Station Kotwali along with Mohan Mishra

and  accused  Prem  Shanker  on  tractor  trolley  of  Gangotri

Mishra. Before they could reach police station, Mohan Mishra

died on the way.  R.P. Mishra (P.W.1) prepared F.I.R. (Ex. Ka.

I)  in his own handwriting and presented the same at Police

Station Kotwali at 6.30 a.m. on the same day. Prem Shanker

and  blood  stained  knife,  (Ex.1)  recovered  from  him  were

handed over to police at the police station, in respect of which

memo Ex. Ka. 2 were prepared by Moharrir (PW-6) who also

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prepared  Check  report  and  registered  the  case  in  general

diary. S.I. Harsh Nath Singh (PW-5) was present at the police

station when the F.I.R. was lodged. He took up investigation

and recorded the statement of first information at the police

station. S.I. Radhey Shyam Tewari conducted inquest on the

dead body of Mohan Mishra, which had been brought to the

police  station by first  informant and others.  The dead body

was  then  sent  for  postmortem  examination  with  constable

Ram Asrey and Rang Nath. After recording the statements of

Shiv  Sahai  and  Suresh  Mishra  (P.W.4),  the  Investigating

Officer  reached  the  place  of  occurrence  along  with  first

informant and witness Shiv Sahai. He made inspection of the

scene  of  occurrence  and prepared  site  plan Ex.  Ka.13.  The

place where blood was found has been shown by letter `A' in

the site  plan. Hari  Shanker  was arrested on the same day.

Injured  Ramakant  Mishra  was,  however,  interrogated  on

13.7.1978 and after completing the investigation charge sheet

Ex. Ka 15 was submitted against both the accused persons.  

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Dr.  Vermpal  conducted  autopsy  on  the  dead  body  of

Mohan  Mishra  on  12-7-78  at  12  noon  and  following  ante

mortem injuries were found.

1. Incised wound 2" 1/4" x skin deep on right side

forehead  1"  above  the  right  eye  brow and 1-1/2”

away  from  right  ear  margins  clean  cut,  gaping

present,  blood  clots  present  and  wound  was

horizontally placed.

2. Incised  wound  l"  x  1/4"  x  muscle  deep  on

middle  of  left  arm margins  clean  gaping  present,

blood clots present.

3.   Punctured wound 1-1/4'' x 1/2" x chest cavity

deep on right side chest 1" outer to mid line chest

and  4"  away  and  above  to  right  nipple,  lying

vertically, margins clean cut gaping present, blood

clots present.

In the internal examination pleura was found

congested  and  cut  underneath  injury  No.3,  Right

lung had also a cut  Mark 3/4"  x 1/2"  pulmonary

vessels  had  also  been  cut.  The  chest  cavity

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contained fresh blood about 520 ml. Stomach was

empty  while  large  intestines  contained  gases  and

faecal  matter.  In  the  opinion  of  the  doctor  death

was due to shock and hemorrhage  as a result  of

ante  mortem  injuries.  The  postmortem  report  is

Ex.Ka.4.

The motive for assaulting Mohan Mishra as alleged in the

first  information report  was that on 10-7-78 Prem Shanker

had made an attempt to have carnal intercourse with Rakesh,

son  of  deceased  and  Rakesh  told  this  fact  to  his  father.

Deceased  accosted  accused  Prem  Shanker  whereupon  the

latter threatened him with dire consequences.

Since the accused persons pleaded innocence, trial was

held. In order to substantiate  the accusations six witnesses

were produced.  R.P. Mishra (PW-1) is the first informant and

younger brother of the deceased.  Ramakant Mishra (PW-2) is

an eye witness. It  is to be noted that PW-1 was the injured

witness. The accused persons took the stand that on the date

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of occurrence accused Prem Shanker went to throw cow dung

in the field in the morning and he was assaulted by Mohan

Mishra with lathi.  On hearing his cries his younger brother

Hari Shanker came there with spear in his hand to save Prem

Shanker.  He assaulted the deceased.  

As noted above, the trial Court found the evidence of eye

witnesses to be credible, cogent and recorded conviction.  In

appeal, the High Court found substance in the plea of exercise

of right of private defence and directed acquittal.  

Criminal  Appeal  No.181 of  2001 has been filed by the

complainant  while  State  of  U.P.  has  filed  other  Criminal

Appeal No.182 of 2001.

3. In  support  of  the  appeals,  learned  counsel  for  the

appellants  submitted  that  the  High  Court  has  acted  on

surmises  and  conjectures  and  has  accepted  the  plea  of

exercise  of  right  of  private  defence.  The  High  Court’s

conclusion as regards non-mention in the FIR that the witness

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managed to evade the lathi blow or about the injury on the

accused  are  legally  untenable.  The  High  Court  has  not

examined  the  question  as  to  whether  the  right  of  private

defence as claimed to have been exercised has been exceeded.

It was pointed out that the witness stated about the assault by

lathi but in the instant case the deceased does not appear to

have received any lathi blow. Since lathi was found at the spot

as claimed the defence version, the High Court probabilised

that deceased had made an assault on accused Prem Shanker

by lathi. The genesis and origin of the occurrence has been

suppressed and true facts have not been presented. The High

Court,  it  is  submitted,  accepted the plea  of  right  of  private

defence but without any material to substantiate the plea, the

High Court came to an abrupt conclusion that the right has

been exercised and the accused persons were acting in self

defence.  The High Court also came to a conclusion that the

injuries  on  accused  Prem  Shanker  were  not  satisfactorily

explained.  It  was  pointed  out  that  those  injuries  were

superficial in nature.  To similar effect is the stand taken by

the State.  

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4. Learned counsel for the accused respondents submitted

that in the case of acquittal if two views are possible, the view

in favour of the accused has to be accepted.  The High Court

on  analyzing  the  evidence  came  to  a  conclusion  that  the

accused persons were exercising the right of private defence.  

5. Only  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

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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

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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

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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.

6. 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

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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

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of right of private defence.

7. 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.

8. 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

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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).

9. 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

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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.

10. 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

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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.

11. 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

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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.”

12. 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.         

13. The above position was highlighted in V. Subramani and

Anr. vs. State of Tamil Nadu (2005 (10) SCC 358).

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14. In  the instant  case  the  High Court  held that  the lathi

injuries were there but came to erroneous conclusion that the

injuries appear to have been inflicted in a different manner.

The High Court also came to a conclusion that if the spear

was used blunt injury could not have been caused.   

15. Unfortunately,  the  High  Court  overlooked  that  the

categorical  finding recorded by the trial  Court was that one

side of the weapon was blunt and other side was sharp and

one blunt injury was explained.  The High Court appears  to

have  wrongly  interpreted  the  opinion  of  the  doctor.   The

genesis according to the High Court has not been established.

If  that  be  so,  there  was  no  question  of  exercise  of  right  of

private  defence.  The  High  Court’s  conclusion  as  regards

shifting the onus on the prosecution is also without any legal

foundation.  It is to be noted that nothing was found in the

field as was pleaded by the defence to substantiate the right of

private defence.  The FIR was promptly lodged. The doctor had

opined that the injury was possible with knife but the High

Court  without any discussion held otherwise.  So far  as the

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alleged non-explanation of injuries on the accused aspect is

concerned,  the  High  Court  clearly  overlooked  the  relevant

materials.  From the evidence it is clear that after the accused

persons  assaulted  the  deceased  and  the  injured  witnesses

they  were  beaten  by  the  villagers.  In  the  FIR  also  there  is

mention about the beating given by villagers. The High Court

held that the details of the assaults were not given in the FIR.

In this context, the view expressed by this Court in Chacko @

Aniyan Kunju and Ors. v. State of Kerala (2004 (12) SCC 269)

needs to be noted. In paras 7 and 8 it was observed as follows:

“7. Coming to the  question whether  on the basis of a solitary evidence conviction can be maintained. A bare reference of Section 134 of the  Indian  Evidence  Act,  1872  (in  short  ‘the Evidence  Act’)  would  suffice.  The  provision clearly  states  that  no  particular  number  of witnesses  is  required  to  establish  the  case. Conviction can be based on the testimony of single  witness  if  he  is  wholly  reliable. Corroboration  may  be  necessary  when he  is only  partially  reliable.  If  the  evidence  is unblemished and beyond all possible criticism and the Court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained.  Undisputedly, there were injuries found on the body of the accused  persons  on  medical  evidence.   That

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per se cannot be a ground to totally  discard the prosecution version.  This is a factor which has to be weighed along with other materials to  see  whether  the  prosecution  version  is reliable,  cogent  and  trustworthy.   When  the case  of  the  prosecution  is  supported  by  an eyewitness who is found to be truthful, as well, mere  non-explanation  of  the  injuries  on  the accused  persons  cannot  be  a  foundation  for discarding  the  prosecution  version. Additionally, the dying declaration was found to be acceptable.

8. Other plea emphasized related to alleged exercise  of  right  of  private  defence.  Merely because there was a quarrel and two accused persons  sustained  injuries,  that  does  not confer a right of private defence extending to the  extent  of  causing  death  as  in  this  case. Though  such  right  cannot  be  weighed  in golden scales, it has to be established that the accused  persons  were  under  such  grave apprehension about the safety of their life and property  that  retaliation  to  the  extent  done was absolutely  necessary.  No evidence  much less cogent and credible was adduced in this regard. The right of private defence as claimed by  the  accused  persons  have  been  rightly discarded.”   

16. So far as non-explanation of superficial  injuries on the

accused persons is concerned, in Anil Kumar v. State of U.P.

(2004 (13) SCC 257), it was held as follows:

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“Non-explanation  of  injuries  by  the prosecution  will  not  affect  prosecution  case where  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 creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the  injuries.  As  observed  by  this  Court  in Ramlagan Singh v.  State  of  Bihar (AIR 1972 SC 2593) prosecution is not called upon in all cases  to  explain  the  injuries  received  by the accused persons.  It is for the defence to put questions  to  the  prosecution  witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the  prosecution  witnesses  to  explain  any injury on the person of an accused.  In  Hare krishna Singh and Ors. v.  State of Bihar (AIR 1988  SC  863),  it  was  observed  that  the obligation  of  the  prosecution  to  explain  the injuries sustained by the accused in the same occurrence  may  not  arise  in  each and every case.  In  other  words,  it  is  not  an invariable rule  that  the  prosecution has to  explain  the injuries sustained by the accused in the same occurrence.   If  the  witnesses  examined  on behalf  of the prosecution are believed by the Court in proof of guilt of the accused beyond reasonable  doubt,  question  of  obligation  of prosecution  to  explain  injuries  sustained  by the  accused  will  not  arise.   When  the prosecution  comes  with  a  definite  case  that the  offence  has  been  committed  by  the accused  and  proves  its  case  beyond  any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused.   It  is

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more  so  when  the  injuries  are  simple  or superficial  in  nature.   In  the  case  at  hand, trifle and superficial injuries on accused are of little  assistance  to  them  to  throw  doubt  on veracity  of  prosecution  case.  (See  Surendra Paswan v.  State  of  Jharkhand (2003)  8 Supreme 476).”

17. The basic question which was to be considered by the

High Court was that even if the right of private defence  was

exercised, whether that was exceeded. In the instant case, the

evidence  clearly  shows  that  though  there  may  be  at  some

point  of  time the exercise  of  right of private  defence  by the

respondents  existed,  the  same  has  been  exceeded.  The

respondents  are  therefore  convicted  of  offence  punishable

under Section 304 Part I  IPC. Custodial sentence of 8 years

would meet the ends of justice. The appeals are allowed to the

aforesaid  extent.  The  respondents  who  are  on  bail  shall

surrender  to  custody  forthwith  to  serve  the  remainder  of

sentence.  

…………………………..J. (Dr. ARIJIT PASAYAT)

………………….…….….J.

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(P. SATHASIVAM)

…………………………...J. (AFTAB ALAM)

New Delhi, August 22, 2008

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