REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.                OF 2008 (Arising out of S.L.P. (Crl.) No.463 of 2008)

Salim and Ors. …Appellants

Vs.

State of Haryana …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 Punjab and Haryana High Court,  disposing of

two  appeals  i.e.  Criminal  appeals  No.665-DB  of  2004  and

Criminal appeal  No.376-DBA of 2005. The first was filed by

the present appellant while the second was filed by the State

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of Haryana. Both the appeals had their factual matrix on a

judgment  of  conviction  and  sentence  dated  26/29.7.2004

passed  by  learned  Additional  Sessions  Judge  (Fast  Track

Court), Gurgaon. 14 persons faced trial for alleged commission

of  offences  punishable  under  Sections  148,  149,  302,  307,

325 and 323 of the Indian Penal Code, 1860 (in short ‘IPC’)

and under Section 25 of Arms Act, 1959, (in short ‘Arms Act’).

The  Trial  Court  convicted  appellant  Salim   for  offences

punishable under Sections 302, 203/149, 307/149, 323/149,

325/149 IPC and Section 27 of the Arms Act, whereas other

accused persons were held guilty of the offences punishable

under Sections 148, 307/149, 323/149 and 325/149 IPC and

various  sentences  were  imposed.  As  noted  above,  both  the

accused person and the State filed the appeals.

3. Factual facts in a nutshell are as follows:

On 25.11.2000 a medical ruqa was received from CHC

Nuh regarding death of Abdul Gafar by the police and where

upon  SI/SHO  Ram  Niwas  along  with  other  police  officials

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reached  CHC  Nuh  and  after  obtaining  the  opinion  of  the

doctor qua fitness, recorded statement of Alim Son of Yakub

one of the injured persons. The complainant stated before the

police that one killa of-land in "Dehri Wali Jungle" in the name

of Zakir son of Fauj Khan was being cultivated by Rasul Khan,

his  cousin,  for  the  last  3-4  months  on  batai.  Complainant

further stated before the police that at about 9.00 a.m. Hasan

Mohammad son of Ibrahim and other ploughed the said field,

and when they came to know about this, at about 12.30 p.m.,

he  himself,  Kalam,  Irfan,  Mursalin,  Abdul  Gafar,  Lukman,

Abdul Rashid, Salim s/o Abdul Rasid reached the spot in a

tractor. When the complainant alongwith said persons started

ploughing the field, Issa armed with double barrel gun, Salim

S/o  Ummar  Mohd.  also  having  double  barrel  gun,  Aslam

armed with country made pistol,  Habib armed with Pharsa,

Hasan Mohd., Roshan, Liia, lqbal, Nasim, Din Mohd., Sohrab,

Hanif and Nayyum armed with lathies came there together in

prosecution of their common object and immediately they gave

lalkara  that  the  persons  belonging  to  complainant  party

should be killed, and in the meanwhile Salim fired from his

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double barrel gun which hit forehead and face of Abdul Gafar.

Issa fired from his double barrel gun and the pallets hit Gafar

on his right side,  Aslam fired from the country made pistol

which  hit  fore-head  of  Kalam.  The  complainant  further

reported  that  he  alongwith  Mursalin,  Salim,  Abdul  Rashid,

Lukman, Irfan intervened and tried to save the said persons.

Habib gave a pharsa blow on his head, Lila inflicted lathi blow

on  his  head  whereas  remaining  accused  with  their  lathis

caused  injuries  on Irfan,  Lukman,  Abdul  Rashid,  Mursalin.

Meanwhile  Abdul  Latif  and  Younus  came  to  the  spot,

witnessed the occurrence,  intervened and saved the injured

persons from the hands of accused persons. The injured were

taken in a jeep to Nuh hospital. Abdul Gafar died on the way

due  to  the  injuries  suffered  by  him.  On  the  basis  of  the

complaint,  formal  FIR  was  recorded  by  ASI  Ram  Dayal.

SI/SHO  Ram  Niwas  completed  the  inquest  proceedings

regarding  deceased  Gafar.  He  also  prepared  the  rough  site

plan and collected from the spot, one empty cartridge with one

plastic  giddi.  These  were  taken  into  possession  after

converting  them  into  sealed  parcel  by  preparing  a  memo.

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SI/SHO Ram Niwas also collected from the spot blood stained

earth  from  two  places  and  prepared  separate  memos  after

converting  them  into  separate  parcels.  The  post  mortem

examination qua the dead body of Abdul Gafar was conducted

by  the  doctors.  Bijender  Singh,  ASI,  after  post  mortem

examination brought from the doctor two parcels duly sealed

which  were  taken  into  possession  by  SI  Ram  Niwas  by

preparing a memo on 25.11.2000. On 27.11.2000 Osab son of

Issa  produced  one  lincenced  gun with  licence  of  his  father

alongwith 24 live cartridges which were taken into possession

by  SI/SHO  Ram  Niwas  by  preparing  necessary  memo.  On

28.11.2000  SI/SHO  Ram  Niwas  arrested  eleven  accused

persons.  He  also  took  the  weapon used  for  committing  the

murder. The gun was then recovered. Akhakha was prepared

and then the same was sealed into a separate sealed parcel.

The  investigating  officer  also  prepared  the  rough  site  plan

regarding the place of recovery. On 1.12.2000 SI/SHO Ram

Niwas arrested accused Hanif who too produced one lathi at

that  time,  which was taken  into  possession by preparing  a

memo. On 29.1.2000 SI/SHO Ram, arrested Habib-accused

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who produced  pharsa,  which was  taken  into  possession  by

preparing  memo.  Scaled  site  plan  was  got  prepared.

Statements of witnesses were recorded. The injured persons

were  examined.  The  FSL  report  was  obtained.  Sohrab  was

later on arrested whose supplementary challan was prepared

by  SI/SHO  Ram  Niwas.  After  completion  of  necessary

investigation, the challan was submitted before the Court for

trial of the accused.

On the basis of police reports and other evidence on file,

all  the accused were charge sheeted for offences punishable

under Sections 148, 302,/149, 307/149, 447/149, 323/149,

325/149 of IPC. Salim was also charge sheeted under section

27 of Arms Act. All the accused persons pleaded not guilty to

the charges and claimed trial of their case.

4. Prosecution  to  further  the  accusations  examined  23

witnesses.  Four  witnesses  were  examined  by  the  accused

persons.   The  Trial  Court  found  that  the  prosecution  has

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established  its  accusations  and  directed  conviction  and

imposed sentences as noted above.    

5. In  appeal,  primary  stand  taken  was  that  the  accused

persons were  exercising  right  of  private  defence.   The  Trial

Court found that a case right of private defence was not made

out.   Accordingly,  the  appeal  was  dismissed.   The  State’s

appeal was also dismissed.     

6. The stand taken before the High Court was reiterated by

learned counsel for the appellant.  The learned counsel for the

respondent-State, on the other hand, supported the judgment

of the Trial Court and the High Court.    

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

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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

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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

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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

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to  show  as  in  a  civil  case  that  the  preponderance  of

probabilities is in favour of his plea.

8. 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

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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.

9. 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

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destroyed or has been put to route, there can be no occasion

to exercise the right of private defence.

10. 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).

11. 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

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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

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whether  the  plea  is  acceptable.  It  is  essentially,  as  noted

above, a finding of fact.

12. 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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13. 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.”

14. 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

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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.         

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

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

16. On considering the evidence it is held that existence of

the  material  to  show  that  the  accused  were  exercising  the

right of private defence, was not established.  On the date of

occurrence  i.e.  25.11.2000  the  land  in  question  was  lying

vacant  and  the  matter  regarding  possession  was  pending

adjudication before the revenue authorities.  After the order of

remand passed by the Commissioner on 17.2.2000, there is

no material to show who was in possession over the land in

question.  Leaned counsel for the appellant has brought to our

notice the evidence of Patwari to show about the possession

about the date of occurrence.  It is true that the Patwari has

taken  that  during  the  investigation  he  found  that  actual

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physical possession of the accused persons over the disputed

property.  It is also similarly stated by PW 22 SHO. The Trial

Court  observed  that  one  of  the  parties  used  force  to  take

possession of the land in question.   

17. Above  being  the  position  the  plea  that  the  accused

persons  were  exercising  right  of  private  defence  cannot  be

accepted.  Though the material on record shows that though

initially the accused were exercising right of private defence,

same  was  exceeded.  In  the  factual  background  appropriate

conviction of Salim would be under Section 304 Part I  read

with Section 149 IPC.  The conviction is accordingly altered.

In  case  of  other  accused  persons  the  conviction  would  be

under  Section  304  Part  I  read  with  Section  149  IPC.  The

conviction and sentence imposed for the other offences remain

unaltered. It is stated that accused-Salim was in custody for

more than 8 years.  In the background facts the sentence is

fixed at the period already undergone.  He shall  be released

forthwith unless required to be in custody in any other case.

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The sentence in case of others would be nine years.            

18. The appeal is disposed of accordingly.

…………………………….J. (Dr. ARIJIT PASAYAT)

           …………………………….J. (HARJIT SINGH BEDI)

New Delhi, August 11, 2008    

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