Reportable

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 604 OF 2006

Ranbir Singh & Ors.             ..Appellants  

Versus

State of Haryana           ..Respondent   

J U D G E M E N T

R.M. LODHA, J.

Eight persons were  sent up for trial  to the Sessions  

Judge, Sonepat for the offences under Section 148, 302, 324  

and 323 read with Section 149 IPC. The trial Court convicted  

four among them and acquitted the other four accused; one of  

the acquitted accused had died during the trial.  The convicted  

persons were sentenced  under Section 302 read with 34 IPC  

to the life imprisonment and varying period of  imprisonments

under  other  offences;  fine  with  default  stipulation  was  also  

imposed.   All the four convicted persons filed  appeal  before  

the High Court of Punjab and Haryana.  The High Court by its  

judgment  dated November 30, 2005  affirmed the conviction  

and sentence imposed by the trial court.  This appeal by special  

leave is preferred by these four convicted persons.

2.         The prosecution version is this:  on September 26,  

1990, Suresh (PW-12) took his buffaloes to  Delhi Canal.  

The  buffaloes entered into the canal water.  At the same  

time Ranbir (A-1)  also brought his buffaloes  to the canal.  

Ranbir asked Suresh   to take out the buffaloes  from the  

canal but Suresh refused to do so on the ground that the  

canal water was deep.    At this,  Ranbir pushed Suresh  

into the canal.   Suresh came out of the canal water and  

went home crying and narrated the incident to his brother  

Krishan  (PW-1).   Krishan  protested  with  Ranbir  in  this  

regard in the evening which led to an altercation between  

them.   Ranbir inflicted some injuries  to Krishan which  

was reported to the police in the night of September 26,  

1990.   On September 27,1990,  Krishan is said to have  

been medically examined.   On September 28,1990, at  

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about 8.00 A.M., PW-1  and his uncle Balwan(deceased)  

were returning after answering the call of nature.  When  

they were about to take turn to the street to their house,  

Ranbir (A-1), Balbir (A-2), Shiv Kumar  (A-3), Sadhu (A-4)  

came out of the Gher of Ram Sarup (A-6). A-1 was armed  

with an axe while A-2  had Jailwa in his hand,  A-3 and A-

4  were  armed  with  lathies.     A-1,  A-2,  A-3  and  A-4  

surrounded  Balwan  and   exhorted  to  finish  him  off  as  

Krishan had escaped earlier.  Seeing Balwan surrounded  

by A-1,  A-2,  A-3  and A-4,  PW-1,  Rohtas  (PW-13)  and  

Sahab Singh (PW-11) came running from their respective  

Gher.   A-1 inflicted an axe blow on the head of Balwan  

while A-2 inflicted jailwa blow from the  log side on the  

head of Balwan.  A-3 and A-4 also inflicted lathi blows on  

Balwan.  Balwan fell  down.  PW-1,  PW-11 and PW-13  

intervened.  At this, A-3 and A-4 gave lathi blows to them  

also.    A-2 attacked PW-11 as well.  PW-1, PW-11 and  

PW-13 snatched  lathies from A-3 and A-4.  By that time  

number of people had arrived; seeing them A-1, A-2, A-3  

and A-4  ran away from the spot.  At  that time, Lekh Ram  

(A-5), Ram Sarup (A-6), Bhalle Ram (A-7), Krishan son of  

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Bhalle Ram (A-8)  surrounded PW-1, PW-11 and PW-13  

but PW-1, PW-11 and PW-13 attacked them  by  lathies  

which they had snatched from A-3 and A-4.  PW-1, PW-

11 and     PW-13 took Balwan to Primary Health Centre,  

Ganaur in an unconscious  condition but he died on the  

way.  The doctor on duty there declared Balwan dead.

3. PW-1  lodged  the  complaint  at  Police  Station,  

Ganaur at about 1.35 PM.,  based on which first  information  

report was registered.

4. Daya Chand, ASI (PW-6) prepared inquest  of the  

dead body and  sent  it for autopsy  which was conducted by  

Dr. R.N. Tehlan (PW-8) at about 5.00P.M.

5. Dr. Krishan Kumar (PW-3), Medical Officer, Primary  

Health Centre, Ganaur examined  PW-1, PW-11, PW-13, A-5,  

A-6, A-7 and A-8, all of whom were  injured in the incident.

6. Ran Singh (PW-9) took all necessary steps towards  

investigation and after  collecting  necessary evidence and on  

completion of investigation,  filed charge sheet in the Court of  

Judicial  Magistrate,  First  Class,  Sonepat  against  the   eight  

accused persons.

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7. PW-8  conducted  post  mortem  examination  and  

found following injuries on the dead body:

“1. Incised  wound  10  x  3  cm present  on  right  parietal  area  of  the   skull,  anteo-postering,  3  cm  lat.  to  midline,  cutting scalp with  regular margins. Right parietal bone was  fractured in pieces.  The right parietal  bone is fractured in  pieces.  Three  pieces  are  driven  into  the  brain.  (Right  cerebral  hemisphere)  and   surrounding  parietal  bone  is  depressed.  Brain matter is present in the  wound.  Clotted  blood  present around in  the  layers of scalp, extra-dural and  sub-dural  area.  Right  cerebral  hemisphere  showed  haemotoma.

2. Red-brownish contusion  on right  supra-orbital ridge  3 cm x 2 cm, right eye  was swollen.

3. Red-contusion 6 cm x  2 cm  back of  left arm.

4.        Red-contusion  6 cm x 1.5 cm back of right  fore-arm.”

8. According  to  PW-8,  the  cause  of  death  of  the  

deceased  Balwan was head injury.  PW-8 also found  that the  

injuries  were  ante-mortem in  nature  and sufficient  to  cause  

death in the ordinary course.

9. From  the  medical  evidence,  it  is  sufficiently  

established that death  of  Balwan was homicidal.  As a matter  

of  fact,  the  counsel  for  the appellant   did  not  challenge this  

aspect at all.

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10. That in the incident that occurred on September 28,  

1990,  Balwan died and PW-1, PW-11, PW-13, A-5, A-6, A-7  

and A-8  sustained injuries is not in dispute.

11. Dr. Krishan Kumar examined PW-11 at about 10.40  

A.M. on September 28, 1990.  He found  the following injuries  

on his person:

“1. A penetrating wound 1 cm x 0.5 x 1 cm deep present  on the right side of chest, 6 cm  above the right nipple and  9 cm below the sterno clavicular joint.   Fresh clotted blood  present.  No foreign body seen.  There is cut mark on the  shirt above this injury mark with staining of blood.   Adv. X- Ray.

2. An abrasion 0.5 cm x 0.2 cm present on the chest  5.5  cm  medially  to  the  injury  No.  1  and  2  cm  below  the  manubrium sterni.

3.       Complaint of pain chest and respiratory distress.”

12. Dr. Krishan Kumar  also examined PW-13 at about  

11.05 A.M on the same day and he found the following injuries  

on the person of PW-13.

“1. An abrasion 5.5 x 1 cm present  on the back of right  shoulder. Red in colour.  Movements normal.

2. An abrasion 6 x 0.2 cm present on the post surface of  left shoulder, 3 cm below the tip of shoulder.

3. A contusion 6 x 2.5 cm present on the post surface  right fore-arm, 11 cm below the elbow.

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4. A contusion 6 x 2 cm present on the post surface of  left fore-arm, 7 cm above the wrist.

5. A contusion 7 x 2 cm present on the P/L surface of  left fore-arm, 14 cm above the wrist.

6. A contusion 5.5 x 2 cm present on the A/L surface of  right upper arm, 10 cm above the elbow.”

13. On September  28,  1990,  Dr.  Krishan Kumar  also  

examined the accused.   In the afternoon  at  about 12.40 P.M.  

on  September  28,  1990,   A-5  was  medically  examined  and  

PW-3  found the following injuries on his person.

“1. A reddish contusion 7 x 2.5 cm present on the post  surface of  left  fore-arm, 4 cm  above the wrist.   There is  deformity and swelling around it.    The movements of the  adjacent joints are restricted.  Adv. x-ray.

2. ALW 1 cm x 0.5 cm  present on the dorsal aspect of  P.I.P. joint of left index finger.  Movements were restricted.  Advise X-ray.

3. ALW  3  x  0.5  x  skin  deep  present  on  the  palmer  aspect  of  left  index  finger  and  clots  of  blood  present.  Movements  painful.   

4. A  contusion 5 x 2 cm present on the A/L surface of  middle of left fore-arm.  Adv. X-Ray.

5. A contusion 1.5 x 0.5 cm present  on the  posterior  surface of left side of back, 12 cm below the tip of shoulder  joint.   Red in colour.

6. An  abrasion  3  x  0.5  cm  present  on  the  anterior  surface of right thigh, 12 cm above  knee.”

Injuries Nos. 1, 2, and 3  were subjected to X-ray examination.  

A-5 was  also radiologically examined by  Dr.  S.S. Wadhwa  

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(PW-2).  As per X-ray report (Ex.PE), A-5 had suffered  fracture  

of both bones of left fore-arm and dislocation of proximal inter  

phalangeal joint of left index finger.

14. PW-3  at about 1.10 P.M. on September 28, 1990  

medically examined A-8 and found the following injuries:

“1. ALW 1.5 X 0.5 cm x 0.5 cm present on the right side  of  scalp,  8.5 cm above the right  ear pinna,  13 cms away  from the outer  canthus of  right  eye.   Fresh clots of  blood  present.   No FB seen.  Adv. X-ray.

2. A contusion 6 x 7 cm present on the ante surface of  middle of right upper arm.  Reddish in colour.  Adv. X-Ray.

3. A contusion 5 x 1 cm present on the post surface of  right wrist.  Movements  normal.

4. A  contusion 8 x 7 cm present on the post surface of  left fore-arm in its middle.  There is a swelling and deformity  around it.  Movements  restricted.  Adv. X-ray.

5. A  contusion 14 x 3 cm present on the post lateral  surface of right thigh,  3 cm above knee.   Red in colour.

6. A  contusion 8 x 2 cm present on the medial surface  of left thigh,  10 cm above knee.

7. A contusion 5 x 3 cm present  on the medial surface  of right leg, 10 cm below the knee.

8. ALW  2.5  x  0.5  cm  x  1.5  cm  present  on  the  ante  surface of left leg, 17 cm below  the knee.  Clotted  blood  present.  Adv. X-Ray.  Movements were painful”

15. A-6  was  medically  examined  by  PW-3  on  

September  28,  1990  at   1.40  P.M.   Following  

injuries were found  on his person:

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“1. A lacerated  wound 9 x 1 cm x bone deep  present on  the right side of scalp, 10 cm above the right ear pinna, 4 cm  above the right eyebrow.  Fresh clotted blood was present.  No foreign body seen.  The injury was advised for X-ray.

2. An abrasion  1.5  x  0.5  cm present  on  the  posterior  surface of right wrist.   Movements were normal.

3. One abrasion 1.5 x 0.5 cm  present on the anterior  surface of right thigh,  4 cm above knee.

4. A contusion below the nail bed of left ring finger.   The  movements were present.

5. An abrasion 6 x 2 cm on the anterior surface of left  thigh at its lower 1/3rd.”  

16. PW-3  at about 2.20 P.M. on September 28, 1990  

medically examined A-7 also and found the following injuries:

“1.  ALW 1 x 0.3 cm. x 0.5 cm present on the  left side of  scalp, 10 cm above the left ear  pinna  12 cm from the outer  canthus of left eye.  Fresh clotted blood seen. No FB seen.  Adv. X-ray.

2.    An abrasion 7 x 1 cm present on the middle of right  clavicle.

3. A contusion 17 x 2 cm present on the A/L surface of  right upper arm, just above  elbow.  Movements  normal.

4. A contusion 7 x 3 cm present on the post surface of  right  fore-arm,  above  the  wrist.    There  is  swelling  and  deformity around it.  Movements very painful.  Adv. X-ray.

5. ALW 2 x 0.5 cm present on the palmer surface of left  little  finger  at  its  base.   Painful.  Movements  were  normal.

6. A mild swelling just above the base of left little finger.

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7. An abrasion 2 x 1  cm present on the medial surface  of  right  leg,  14  cm  above  the  medial  mallolus.  Movements  normal.

8. A contusion 10 x 3 cm present on the P/L surface of  left leg, 5 cm above the lat. mallolus.

9. An abrasion 5 x 2 cm present over the lateral surface  of left thigh,  22 cm above the knee.”  

17. PW-3  also  medically  examined   A-3  and  found  

following injuries on his person:

“1. An infected wound 4 x 1.5 cm x scalp deep present  on the left side of scalp, 7 cm above the left ear pinna and  12 cm behind and above the outer canthus of left eye.

2. An infected wound 2.5 x 0.5 cm x scalp deep present  on the right side of scalp, 11 cm above the right ear pinna.”

18. The learned counsel  for the appellant strenuously  

urged that  the incident did not occur  in the manner suggested  

by PW-1, PW-11 and PW-13.    He submitted that as a matter  

of  fact  Balwan  (deceased),  PW-1,   PW-11 and PW-13 had  

come  armed with lathies to Ram Sarup’s Gher  and started  

inflicting  lathi  blows to  A-5, A-6, A-7 and A-8.   To protect  

themselves, in their right of private  defence, A-1, A-2, A-3 and  

A-4  inflicted injuries to Balwan and unfortunately that resulted  

in his death.   Learned  counsel submitted that accused had no  

intention whatsoever to cause his death.  The learned counsel  

would  submit  that  at  the   highest,   A-1,  A-2,  A-3  and  A-4  

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exceeded their right of private defence and for  that  they may  

be  liable  for  culpable  homicide  not  amounting  to  murder.  

Learned counsel  submitted that  the trial  court  as well  as the  

High  Court  failed  to  appreciate  the  defence  version  in  right  

perspective which was apparent  from the suggestions put to  

PW-1, PW-11 and PW-13 in their cross examination as  well as  

in the statement of the accused under Section 313 Cr.P.C.   In  

the  alternative,   he  submitted  that  the  case  is  covered  by  

Exception 4 to Section 300.

19. The  controversy before us is in narrow compass  

and   that  is    whether   the   accused   have  been  able  to  

probablise   that the death of  Balwan occurred in exercise of  

their  right  of  self-defence  and  whether  they  exceeded  that  

right.

20. Initially,  on  September  26,  1990,  some  argument  

took place between A-1 and PW-12 with regard to taking out  

the  buffalos  from canal;  A-1 pushed PW-12  in canal water.  

PW-12 went home crying.  Then there was altercation  later  in  

the  evening between  PW-1 and A-1.  A-1 with the help of A-2  

and A-5 is said to have inflicted some injuries to PW-1 in that  

altercation.   In this back ground, obviously it was PW-1  and  

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his family members who had an axe to grind  against A-1, A-2  

and  A-5  and  not  the  accused  party.   Two  days   later,  on  

September  28,  1990,  the  incident  occurred  just  out-side  the  

Gher of A-6. The prosecution case is that A-1 and Balwan were  

returning after  answering the  call of the nature and when they  

were about to take turn to the street to their house, A-1 and A-2  

armed with axe and jailwa respectively and A-3 and A-4 armed  

with lathies surrounded Balwan and after exhorting  him, A-1  

gave an axe blow on the head of Balwan; A-2 also gave blow to  

Balwan on his head from  log-side  of jailwa  and A-3 and A-4  

gave lathi blows.   The prosecution case  about commencement  

of incident appears to be  little doubtful.  In our opinion,  the  

prosecution has not come out with truthful version as to how the  

incident commenced.  This is so because, according to PW-1,  

he was ahead of Balwan by 50 paces.   If A-1, A-2, A-3 and A-4  

were aggressors,  they would have  attacked PW-1 as he had  

reached Gher of A-6 first and  Balwan was   about 50 paces  

away from him.   A-1, A-2, A-3,  and A-4  had no direct quarrel  

with   Balwan.   Altercation  was exchanged between A-1 and  

PW-1 two days before.  Why should have they spared PW-1?  

The prosecution version  is, thus, not in accordance with human  

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probabilities.  On the other hand,  the defence version is that  

PW-1, PW-11 and PW-13 and  Balwan were armed with lathies;  

they   came  to  the  Gher  of  Ram  Sarup  (A-6)  and  started  

assaulting A-5, A-6, A-7 and A-8 and in their self-defence they  

attacked assailants and as a result of which Balwan died. That  

A-5, A-6, A-7 and A-8 sustained multiple injuries in the incident  

is admitted by prosecution.  The prosecution  sought to  explain  

the injuries on A-5, A-6, A-7 and A-8  by submitting that PW-1,  

PW-11 and PW-13  snatched lathies   from A-3 and A-4 in their  

self-defence and gave lathi  blows to  A-5,  A-6,  A-7 and A-8.  

However, PW-11 in his cross examination stated that he did not  

snatch any lathi from A-3 and A-4.     On a careful consideration  

of  the  cross-examination  of  PW-1,  PW-11  and  PW-13,   the  

possibility of  the complainant party being  aggressors  cannot  

be ruled out.   The defence has been able to probablise that  

complainant  party  attacked  first.   As  a  matter  of  fact,   A-5  

received six injuries and few of  these injuries were grievous.  

A-8 sustained  eight injuries while A-7 received  nine injuries  

some  of  which  were  grievous.    A-6  also  received  injuries.  

When we  observe this,  we are not oblivious of the  fact that  

number of  injuries on the accused side by itself  may not  be  

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sufficient to establish right of private defence.

21. The Court should take an overall view of the case  

and if a right of self-defence is made out 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. (Vidya Singh v. State  of Madhya Pradesh1).  

22. The  aforenoticed  statement  of  law  exposited  in  

Vidya  Singh1  has  been  reiterated  by  this  Court  in   V.  

Subramani and Another v. State of T.N.2.  In V. Subramani,  this  

Court went on to observe:

“….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  courtroom,  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.”

23. The learned counsel for the appellants has not set  

up  before  us the right of private defence as a total defence.  

1 1971 (3) SCC 244  2 (2005) 10 SCC 358

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His whole  emphasis  was  with  reference to  Exception 2 to  

Section 300 that reads as follows:-  

“Exception  2.  –  Culpable  homicide  is  not  murder  if  the  offender, in the exercise in good faith of the right of private  defence of person or property, exceeds the power given to  him  by  law  and  causes  the  death  of  the  person  against  whom  he  is  exercising  such  right  of  defence  without  premeditation,  and without any intention of doing more harm  than is necessary for the purpose of such defence.”

24. The existence  of good faith is a must before the  

accused claims benefit of this exception.  While acting in good  

faith,  if the accused has exceeded the right of self-defence and  

caused death of a person without pre-meditation and further  he  

had no intention to causing more harm than was necessary for  

the purpose of  the defence although in  fact  more harm was  

caused,  the  benefit  of  Exception  2  to  Section  300  may  be  

available if the accused was not the aggressor.   

25. The burden  of  proving self-defence is always on  

the accused but it is not as onerous as the  one which lies with  

the  prosecution.   Such  burden  can  be  discharged  by  

probablising   the  defence.   The accused  may discharge  his  

onus by  establishing  a mere  preponderance  of  probabilities  

either by laying basis for that  plea in the cross examination of  

prosecution witness or by adducing defence evidence.

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26. The  High  Court  and  the  trial  court  in  the  instant  

case, failed to consider the plea  of self-defence set up by the  

accused in right perspective.    Having considered the matter  

thoughtfully,  and  in  what  we have  discussed  above,  we are  

satisfied that the accused have been able to make out a case  

for the benefit of Exception 2 to Section 300.

27. The appellants are, thus, held guilty of the offence  

punishable under Section 304 Part I read with Section 34 IPC.  

Their conviction under Section 302 read with  34 IPC is altered  

to  Section 304 Part I read with Section 34 IPC.

28. We are informed that the appellants  have already  

suffered  imprisonment  of  almost  nine  years.   In  the  

circumstances,  the   sentence  undergone,  for  the  offence  

punishable under Section 304 Part I IPC, shall meet the ends of  

justice.  Their conviction and sentence under other offences is  

maintained.

29. The  appeal  is,  accordingly, allowed in part.   The  

appellants be released  forthwith, if  not required in any other  

offence.

………………….J

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                   (D.K. Jain)   

………………….J                (R.M. Lodha)  

New Delhi, April 30, 2009

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