REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.            OF 2009 (Arising out of SLP (Crl.) No.3905 of 2008)

Ranveer Singh ...Appellant

Vs.

State of M.P. ...Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of a Division Bench of the

Madhya  Pradesh  High  Court  at  Gwalior  Bench.  The  appellant  was

convicted by learned First  Additional  Sessions Judge,  Bhind,  for offence

punishable under Section 302 read with Section 109 or in the alternative

under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in

short the ‘IPC’). He was sentenced to undergo imprisonment for life.  

3. The High Court by the impugned judgment altered the conviction to

section 304 Part I IPC read with Sections 109 and 34 IPC. He was sentenced

to undergo imprisonment for 5 years and to pay a fine of Rs.20,000/- with

default stipulation.  

4. Prosecution version in a nutshell is as follows:

Report  Ex.P/1  was  lodged  by  complainant  Lakhansingh  (PW1)

according to  which  on 31.5.1990  his  cousin  Pappu  had some altercation

with Kanthshree (DW1),  sister-in-law of appellant.   Due to  that  incident

when on 1.6.1990 at 6.00 a.m. Pappu was going to answer call of nature,  he

was  surrounded  by  appellant  Ranveer  Singh  and  his  son  Munnu  alias

Prithviraj  and   was  thrashed  to  ground.  When  he  shouted,  complainant

Lakhansingh (PW 1), Vasudev (P.W.3) and Vrindawan (PW 3) reached the

spot alongwith Lalita alias Firki (hereinafter referred to as the ‘deceased’),

sister of the complainant Lakhansingh and his cousin Sunil (PW8). Seeing

them, appellant asked his son Prithviraj alias Munnu to bring his licensed

rifle from the home. Prithviraj alias Munnu brought the gun from the house.

On exhortation  of  the  present  appellant,  Munnu  fired  a  gun  shot  which

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caused injury to Lalita on the left thigh. Lalita was taken to the hospital in a

bullock cart but on the way she succumbed to the injury sustained by her.  

Report  of the incident  was lodged on 1.6.1990 at about 7 A.M. at

police  station  Dehat,  Bhind.  On  the  basis  of  the  report  lodged  by

Lakhansingh (PW 1), police registered a criminal case against the present

appellant and his son Prithviraj alias Munnu. Said Prithviraj alias Munnu

being a minor, his  case was referred to the Juvenile Court.  So far as the

present appellant is concerned, the matter was investigated by the police and

challan  was  filed  against  him. The  case  was  committed  to  the  Court  of

Sessions  for  trial.  The  Sessions  Court  recorded  the  evidence  and  after

appreciating the evidence convicted and sentenced the present appellant as

indicated hereinabove.  An appeal was preferred before the High Court.

Before  the  High  Court  the  basic  stand  was  that  the  accused  had

exercised the right of private defence and, therefore, no offence was made

out. The High Court held that even if the right of private defence is accepted

to be available at some point of time, it  was exceeded and, therefore, the

appropriate conviction was under Section 304 Part II IPC.

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5. Learned  counsel  for  the  appellant  submitted  that  the  appellant  is

clearly protected because he was exercising the right of private defence.  

6. Learned  counsel  for  the  State  on  the  other  hand  supported  the

judgment.  

7. 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 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

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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.

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(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.”

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.

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9. 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 of

self defence may relate to 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

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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,  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.

11. 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 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

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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  on  the  spur  of  the  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 which is 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  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

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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.             

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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 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 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.         

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16. The above position  was  highlighted  in  V. Subramani  and Anr.  vs.

State of Tamil Nadu (2005 (10) SCC 358) and  Salim and Ors. v.  State of

Haryana (SLP (Crl.) No.463 of 2008 disposed of on 11.8.2008.)

17. In the present case the High Court has rightly held that even if it is

accepted that at some point of time the appellant was exercising the right of

private defence, the same was exceeded and has rightly found him guilty

under Section 304 Part I, IPC and sentenced him to undergo imprisonment

for five years.  The sentence as imposed cannot be considered to be harsh.

On payment of fine of Rs.20,000/-, same was to be paid to the heirs of the

deceased. Here again there appears to be no infirmity in the order of the

High Court.

18. Looked at from any angle, the appeal deserves to be dismissed, which

we direct.    

…………………………………….J. (Dr. ARIJIT PASAYAT)

……………………………………J. (ASOK KUMAR GANGULY)

New Delhi, January 21, 2009

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