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CASE NO.: Appeal (crl.)  1023 of 1999

PETITIONER: State of Madhya Pradesh

RESPONDENT: Ramesh

DATE OF JUDGMENT: 18/11/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       State of Madhya Pradesh calls in question legality of the  judgment rendered by the Division Bench of the Madhya Pradesh High  Court.  The respondent faced trial for alleged commission of offences  punishable under Sections 302 and 338 of the Indian Penal Code, 1860  (in short the ’IPC’).  Originally his father Ram Kirpal, brother Rakesh  and mother Nonibai also faced trial with him.  They were acquitted by  the trial Court, while respondent was convicted for causing the  homicidal death of one Rajendra (hereinafter referred to as the  ’deceased’) by gun shot on 20.5.1986.  He was sentenced to life  imprisonment for the offence relatable to Section 302 IPC. He was also  convicted in terms of  Section 338 IPC for causing grievous injury to  Krishna (PW-6) who was injured by the same bullet which after passing  through the body of deceased Rajendra struck Krishan and caused  grievous injury to him.  For this offence he was sentenced to undergo  RI for one year and fine of Rs.1000/- with default stipulation.   

       Prosecution version in nutshell is as follows:

       On 20.5.1986 deceased Rajendra and Kuldeep (PW 1) were returning  after their examination.  They were passing in front of the house of  Ram Kripal (acquitted accused) who was a municipal counciler those  days.  Ram Kirpal knowing that these boys were friendly with Dinesh  (PW-2), who was a press reporter of that area, advised them to abjure  company of Dinesh.  Finding them non-responsive Ram Kirpal, his two  sons Ramesh and Rakesh and his wife Nonibai started pelting stones on  deceased Rajendra and Kuldeep (PW 1).  Thereafter, Ram Kirpal asked his  son Ramesh to get his gun from the house.  Ram Kirpal asked Ramesh to  shoot these boys, Ramesh then brought out a 12 bore gun and fired a  shot at deceased Rajendra from a distance of about 5 paces.  At that  time Dinesh (PW 2) reached there while the shot was fired.  This shot  struck Rajendra in the left iliac crest passing through the stomach  region and damaged various internal organs.  It emerged from the right  side of the body and struck Krishna ( PW 6) who also happened to reach  by that time.  The bullet struck him in the left arm and passed through  fleshy portion and then struck the back region and got embeded on the  spinal cord, ultimately resulting in paralysis.  Rajendra died at the  spot.

       The prosecution case based on the testimony of Kuldeep (PW-1),  Krishna (PW-6), Dinesh (PW-2), Sureshwar Pandey, ASI (PW-8), who also

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happened to be present there and had witnessed the incident.  Further  reliance was placed  on the medical report of autopsy surgeon and  medical opinion regarding injuries of Krishna.  Medical report showed  that deceased Rajendra had been struck with the gun shot which entered  into left iliac crest and emerged in the right side and injured some  vital organs such as Kidney, Spleen and Liver.  The FIR was lodged by  Kuldeep (PW-1) on the same day within 10 minutes after this incident.   

       The accused’s case was that Rajendra had approached Ram Kirpal in  his capacity as Municipal Councillor to obtain his residential  certificate.  He had gone with the other boy.  Ram Kirpal knew that  Rajendra was in fact resident of Uttar Pradesh and not resident of  Chhatarpur, so he declined.  This resulted in exchange of hot words.  Rajendra had been persuaded by Dinesh (PW 2)  who was a press reporter  and whose writings were used to be against Ram Kirpal in respect of  developments of various areas of municipality.  Dinesh  (PW 2) had also tried to put his influence on Ram Kirpal for issuing  certificate to Rajendra but Ram Kirpal did not oblige.  He was attacked  by these boys and he suffered 5 injuries.  He was medically examined  next day after the incident and 5 injuries caused by blunt object were  found on his person.  So his case was that since he was attacked by  these boys, he called for help from his sons.  Ramesh brought out a gun  and that gave rise to the firing.   

       The story of the first attack on Ram Kirpal did not find favour  with the trial Court and the story of the prosecution was accepted,  although presence of Sureshwar Pandey was not accepted by the trial  Court and his testimony was found to be false. But the trial Court held  that the firing  was deliberate and, therefore, the finding of guilt  under Section 302 was returned regarding death of Rajendra.                                       Co- accused persons were however acquitted.

Accused filed appeal before the High Court and contended that it  was clearly a case where right of self defence was available.  Even if  it is held that while acting for protecting the private defence of his  father he had exceeded limit, Section 302 IPC would not be attracted.   It was pleaded that while Ram Kirpal and his family were at their home  deceased and Kuldip (PW-1) were returning after examination. In the  ordinary course of conduct Ram Kripal would not have  advised them to  keep away from PW 2.    There was no reason for him and his family members to start pelting  stones.  If such incident would have happened, there certainly was  possibility of reaction from the side of the deceased and his friends  that has not been disclosed.  The story of pelting stones has been  disbelieved by the trial Court. Five injuries which were there on the  body were not explained by the prosecution.  On the other hand, the  plea of defence is more acceptable.  The deceased was attacked and  certainly he became violent and attacked accused-respondent Ramesh and  caused injuries and Ramesh emerged from his house.  Ramesh was acting  in self defence of his father.

       Prosecutions’ stand was that it is clearly a case of deliberate  killing and there was no basis for inferring any right of self defence.  The trial Court accepted the plea of self defence and altered the  conviction to Section 304 Part I IPC and awarded custodial sentence of  12 years.  Such alteration is subject matter of challenge in this  appeal.

       In support of the appeal, learned counsel for the State submitted  that the approach of the High Court is clearly erroneous. The  conclusions are based on surmises, conjectures and guess work.  Clear  and cogent evidence has been lightly brushed aside and acting on  presumption and surmises and guess work, it has been held that the  accused was acting in self defence.  The High Court was not itself

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clear whether it is a case of grave and sudden provocation to be  covered by Exception I or exceeding of limit of right of self defence  in terms of Exception II of Section 300.   

       In response, learned counsel for the respondent submitted that  the High Court has analysed the evidence in detail and come to a  definite finding that the right of private defence was available to the  accused though he had exceeded the same.  In view of the matter no  interference is called for.

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 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. (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

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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 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, or 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

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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 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

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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.         

       We find that the High Court has acted on surmises and conjectures  to conclude certain aspects. Firstly, it has come to conclude that the  boys including the deceased attacked Ramesh "may be with fists, may be  with some blunt weapon". There was no evidence in this regard.  It was  further held that there was no reason for Ram Kirpal and his family  members to pelt stones.  The deceased and his friends attacked Ram  Kirpal though weapon used by them are not known.  Reference was made to  the injuries on Ram Kirpal.  It was further held that probably some  heat was generated either because of the advise of Ram Kirpal was not  accepted or because request of the boys to issue certificate was not  accepted by him.  Because of the heat generated between the boys and  Ram Kirpal, the boys started hitting Ram Kripal  causing injuries. In  this condition "probably" he asked his sons to  shoot the assailants  and Ramesh fired a gun shot resulting in fatal injury to deceased and  grievous injury to Krishna.  It was further held that when there was  some exchange of hot words between the deceased and his friends, on one  hand and Ram Kishan on the other the boys started attacking on his  father and this was grave and sudden provocation to the sons.  In the  aforesaid background it was held that when Ram Kirpal asked his sons to  kill. Exception I to Section 300 would be attracted.  The conclusions  are not based on evidence and are based on surmises, conjectures and  guess work. As aforesaid noted, it was first concluded that right of  private defence was exceeded.  It was further held that the case  is  covered by either Exception I or Exception II to Section 300, as   injuries on the accused not explained.    The findings are vague,  unclear and indefensible.  As noted above, for some conclusions the  High Court acted without any evidence and frequently used the  expression ’Probably’.  A new case which was not even pleaded by the  parties was introduced on its own by the High Court.  Undue importance  was attached to some superficial injuries of very minor nature on Ram  Kirpal.  It is trite that there are some minor or superficial injuries  suffered by the accused that shall not affect a credible and cogent  prosecution version even if the prosecution has not explained the  injuries.  The vaccilating nature of the conclusions is apparent  because the High Court was not very sure as to whether Exception I or  Exception II to Section 300 I.P.C. applied.  They operate in entirely  different fields.  One relates to grave and sudden provocation and the  other to exercise of right of private defence.  

       The High Court was not justified, therefore, to alter the   conviction to Section 304 Part I IPC.  The trial Court had rightly  convicted the accused in terms of Section 302 IPC.

       Accordingly the judgment of the High Court is set aside and that  of the trial Court is restored.   

       Appeal is allowed.