REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELATE JURISDICTION

CRIMINAL APPEAL NO.1074 of 2001

State of U.P.     …..  Appellant

Versus

Gajey Singh & Another    ….. Respondents

J U D G M E N T

Dalveer Bhandari, J.

1. This  appeal  is  directed  against  the  judgment  dated

16.02.2001 passed by the Division Bench of the High Court of

judicature at Allahabad in Criminal Appeal No.2786 of 1980.

2. Brief facts which are necessary to dispose of this appeal

are recapitulated as under:

3. Lakhi  Ram  deceased  and  his  brother  Jai  Singh,  PW1

were sitting at the residence of Sahid Akhtar PW3 at 8 a.m. on

27.1.1979.  Accused Gajey Singh and his father Mehar Singh

came  there  at  that  time  and  immediately  thereafter,  some

quarrel took place between Lakhi Ram deceased and Mehar

Singh, father of the accused persons.  On the intervention of

Sahid  Akhtar  and Virendra,  the  matter  was  settled  at  that

time and thereafter all of them proceeded to their respective

houses.   

4. It is alleged that at about 9.30 a.m., on the same day,

Lakhi Ram followed by Jai Singh and his father Godha Singh,

PW2 were going towards their field for the ‘chhol’ (harvesting

of  sugarcane  crop)  and  when  they  reached  in  front  of  the

house  of  Mehar Singh, Gajey Singh came there and caught

hold of Lakhi Ram.  Jai Singh and Godha Singh reached there

2

and separated Lakhi Ram and Gajey Singh. In the meantime,

Rajpal Singh came there with the licensed gun of his father

and on the orders of Gajey Singh, he fired upon Lakhi Ram as

a result of which he sustained serious injury on his neck and

died on the spot.

5. Godha Singh PW2 lodged  a written report  Ex.  Ka.1 at

police  station Incholi  on the  same  day at  11.35 a.m. Head

Moharrir Shyam Lal, PW6 prepared chick FIR and made entry

in  the  General  Diary.   Sub-Inspector  Prabhat  Kumar,  PW8

was entrusted with the investigation.  He immediately rushed

to the scene of occurrence and found that ASI Ilma Singh was

already present there and had completed inquest on the dead

body of  the deceased Lakhi Ram.  The dead body was also

sent  for  postmortem  examination  through  constable

Parmanand PW7.   

6. The Investigating Officer  collected sample  of blood and

prepared  site  plan  Ex.Ka.10  and  arrested  both  the

respondents (accused) from their house on the same day and

3

also took the gun which was kept in their room in his custody.

The  Investigating  Officer  then  recorded  statements  of  the

witnesses and on completion of investigation challaned both

the  respondents  through  charge-sheet  Ex.Ka.12.   Dr.  K.D.

Sharma, PW5 conducted the postmortem on the dead body of

Lakhi Ram on 28.1.1979 at 2.30 pm and found the following

ante mortem injuries:-

1. Gunshot  wound  of  entry  6cm  x  4cm x  oral cavity  on  the  right  side  front  of  neck  upper part,  lower  jaw  and  lips.  Blackening  and scorching present, Margin inverted.

2. Gunshot wound of exit 10cm x 8cm on left side face lips and upper part neck.  Margin averted.

3. Lacerated  wound  4cm  x  2cm  x  bone  right  side forehead 2cm above the right eye brow.

4. Bone of lower jaw broken into many pieces.

7. On internal examination, Dr. Sharma found that 3rd and

4th cervical vertebrae were fractured.  Large vessels of neck on

right side were found lacerated and there was also extensive

laceration of oral cavity.  In the opinion of the Medical Officer,

death was caused due to shock and haemorrhage as a result

4

of ante-mortem injuries.  It may also be mentioned here that

in  his  statement  before  the  trial  court,  Dr.  K.D.  Sharma

further opined that death of Lakhi Ram was possible at about

9.30 p.m. on 27.1.1979.

8. The  prosecution  in  support  of  its  case  produced  eight

witnesses  of  whom Jai  Singh  PW1,  Godha  Singh PW2 and

Sagira PW4 were the eye witnesses.  Sahid Akhtar PW3 was

examined to state about the incident which had taken place

before  the  alleged  incident.   Both  the  accused  in  their

respective  statements  recorded  under  section  313  Cr.P.C.

denied the prosecution version.  

9. The accused gave counter version of the right of private

defence.   According  to them, Godha Singh,  Lakhi  Ram, Jai

Singh and Om Prakash came to their house armed with ‘lathi’

and ‘balkati’.  They started assaulting Rajpal Singh with lathi

and Gajey Singh with balkati.  Seeing this, their father Mehar

Singh in order to save Rajpal Singh and Gajey Singh fired a

shot from his gun towards the accused persons.   Gajey Singh

further stated that the police had arrested his father Mehar

5

Singh and he was detained for three days at the police station.

In defence, the accused persons produced four witnesses.  Dr.

S.C. Goel  DW1 proved injury report of accused Gajey Singh

and Rajpal Singh Ex.Ka.2 and Ex. Ka.3 respectively. Dr. S.C.

Goel was posted as Medical  Officer, P.L.S. Hospital,  Meerut.

He stated that he medically examined accused Gajey Singh on

27.1.1979 at 9.10 pm who was produced before him in police

custody by constable Jatan Swarup of police  station Incholi

and found the following injuries on his person:

“Incised wound 7 cm x 2cm bone deep on the right side head, 3 ½ cm above eye brow. Placed vertically. Margins clear. Fresh blood was coming out.   X-ray advised.

10. In the opinion of Dr. Goel, the above injury was caused

by a sharp edged weapon and was about half day old.  On the

same  day  at  9.30  p.m.,  Dr.  S.C.  Goel  medically  examined

accused Rajpal Singh, who was also brought in police custody

by constable Jatan Swarup. The following injury was found on

the person of accused Rajpal Singh.

6

“Lacerated wound 1cm x ½ cm x muscle deep on the  tip  of  the  left  thumb  outer  side  margins lacerated. Blood coming out on cleaning.”

11. In  the  opinion of  Dr.  Goel,  the  injury was simple  and

caused by blunt object and was about half a day old.  Before

the trial court, Dr. Goel DW1 further stated that injuries on

both Gajey Singh and Rajpal Singh could be caused at about

9.30 am on 27.1.1979.  He further opined that injury of Gajey

Singh could be the result of ‘balkati’ blow, while the injury of

Rajpal Singh was caused by a blunt object.  It is not necessary

to refer  to the evidence  of  other witnesses  as they have no

bearing on the incident in question.

12. Learned Sessions Judge placed reliance on the evidence

led  by  the  prosecution  and  found  both  the  accused  Gajey

Singh and Rajpal  Singh guilty  of  offence  under section 302

read with section 34 IPC and sentenced them to imprisonment

for life.  It may be relevant to mention that the factum of death

of Lakhi Ram by firearm injury has neither been disputed nor

assailed  by  the  counsel  for  the  accused.   According  to  the

7

appellant,  Lakhi  Ram  was  killed  by  the  accused  whereas

according to the accused, Lakhi Ram was killed by their father

Mehar  Singh  when  he  saw  his  son  Rajpal  Singh  being

assaulted by lathi and Gajey Singh with ‘balkati’.  As per the

version of the respondents, the incident occurred in front of

their  house  and  from  the  evidence  on  record  it  is  fully

established  that  the  respondents  also  sustained  injuries

including a bone deep injury on skull  in the same incident

and  since  these  injuries  have  not  been  explained  by  the

prosecution witnesses,  it  must be held that the prosecution

suppressed  the  genesis  and  origin  of  occurrence  and  the

prosecution gave a distorted version.    

13. The learned counsel for the respondents submitted that

in law, the defence simply has to show that its defence plea

was  probable  and it  was  not  incumbent  upon the  accused

persons to prove their case to the hilt.  Merely because the

defence was also not true, that by itself  cannot absolve  the

prosecution from discharging its bounden duty and obligation

of proving its case.  

8

14. The  High  Court  found  sufficient  weightage  in  the

submissions of the learned counsel for the respondents.

15. Sagira PW4 stated that at the time of occurrence, he was

inside his house.  He came out on hearing cries and saw that

Lakhi  Ram  deceased  and  Gajey  Singh  were  grappling  with

each  other.   Gajey  Singh  struck  a  lathi  on  Lakhi  Ram

whereupon Lakhi Ram fell on the ground and then Rajpal fired

from his gun upon Lakhi  Ram.  Sagira,  PW4 admitted that

Gajey Singh had sustained an injury on his head when he was

thrown on the ground by Lakhi Ram deceased.  He had not

stated this fact  before  the Investigating Officer.   Though he

claimed  that  he  had disclosed  this  fact  to  the  investigating

officer  but  could  not  provide  any explanation why such an

important fact was not mentioned in his statement recorded

during the investigation.   The Investigating Officer admitted

that this witness did not state the above fact but had stated

that Lakhi Ram had assaulted Gajey Singh with a brick bat.

On being confronted, Sagira PW4 denied to have stated so to

9

the investigating officer and further stated that he could not

assign any reason as to why it  has been so recorded.   The

investigating  officer,  however,  testified  that  the  witness  had

made such a statement to him.  It would thus appear that up

to the investigation stage no explanation of injuries of accused

persons  had  been  put  forward  by  the  witnesses  excepting

Sagira, PW4 who had stated that Gajey Singh had sustained

injury  on  his  head  as  he  was  assaulted  by  a  brick  bat  by

deceased  Lakhi  Ram.   Faced  with  the  difficulty  that  Gajey

Singh had sustained an incised wound of sharp edged object

in  the  same  incident,  these  witnesses  did  not  hesitate  to

improve upon the earlier version placed at the initial stage and

perhaps under some legal advise they were made to state for

the first time at the trial that when accused Gajey Singh had

struck a lathi blow on the forehead of deceased Lakhi Ram,

the latter caught hold of him and threw him on the ground.

Neither  in  the  first  information  report  nor  at  the  stage  of

investigation, Gajey Singh was alleged to be armed with lathi

nor it was the case of the prosecution that Gajey Singh gave

any assault  by lathi on the person of Lakhi Ram deceased.

10

This  part  of  the  prosecution  case  appears  to  have  been

improved at the trial so as to bring evidence of witnesses in

consonance  with  the  medical  evidence  because  in  the

postmortem examination of deceased Lakhi Ram one lacerated

wound  on  right  side  of  forehead  was  also  found.   The

witnesses also made to state for the first time at the trial that

after  receiving  lathi  injury on his  forehead  at  the  hands of

Gajey  Singh,  he  threw  Gajey  Singh  on  the  ground.   This

development appears to have been made to explain the bone

deep  incised  injury  sustained  by  Gajey  Singh  in  the  same

incident.

16. The  High  Court  also  observed  that  according  to  the

statement of the investigating officer he had arrested both the

respondents  on  the  same  day  and  found  injuries  on  their

person and for that reason they were medically examined in

the  police  custody.  By  no  stretch  of  imagination,  injury  of

Gajey Singh could be said to be superficial  or self  inflicted.

Dr. S.C. Goel who had medically examined Gajey Singh has

denied the prosecution suggestion that the incised injury of

11

Gajey Singh might have been caused by a fall on a piece of

glass.  He was recalled for further cross examination by the

Deputy  Government  Counsel  but  the  doctor  stuck  to  his

opinion in a firm manner.  In the instant case, the margins of

incised injury of Gajey Singh were clear and clean cut which

in the opinion of Dr. Goel could not find  any injury caused

due to a fall on a piece of glass.  In the impugned judgment,

the High Court came to the conclusion that the prosecution

has failed to explain injuries suffered by both the respondents

in the same incident.   

17. The High Court in the impugned judgment observed that

the incident occurred in front of the house of the respondents.

The  High  Court  disbelieved  the  claim  of  the  prosecution

witnesses that they and deceased were going to the residence

of Akhtar for ‘chhol’ because the house of the respondents was

not situated on the way leading from their house to their field.

The injuries  sustained on defence side  belie  them as Gajey

Singh sustained a bone deep incised injury caused by a sharp

cutting object and Rajpal had sustained the injury by a blunt

12

object.  The High Court in the impugned judgment discarded

the  explanation  given  by  the  witnesses  with  regard  to  the

injury of Gajey Singh that the same might have been caused

on  account  of  his  being  thrown  on  the  ground.   The  High

Court also observed that the witnesses produced at the trial

were all interested as they made several vital and important

improvements at the trial from the version as was put in the

first information report during investigation.

18. The High Court came to the definite conclusion that the

prosecution has suppressed the genesis and the origin of the

occurrence  and  is  thus  guilty  of  not  presenting  the  true

version before the court.

19. The  High  Court  observed  that  non-explanation  of  the

injuries on the accused persons has rendered the prosecution

version  doubtful  and  makes  the  defence  version  more

probable  that  injuries  on  the  deceased  Lakhi  Ram  were

inflicted in exercise of right of private defence.   

13

20. The High Court also considered the question – whether

the right of private defence extended to the voluntary causing

of  death  of  deceased  Lakhi  Ram  in  the  facts  and

circumstances of the case?  

21. Sections  96  to  99  of  the  Indian  Penal  Code  read  as

under:

“96. Things done in private defence.__  Nothing is an offence which is done in the exercise of the right of private defence.

97.  Right of private defence of the body and of property. __ Every person has a right, subject to the restrictions contained in section 99, to defend__  

First. __  His own body,  and the body of any other person,  against  any  offence  affecting  the  human body;

Secondly. __  The  property,  whether  movable  or immovable,  of  himself  or  of  any  other  person, against any act which is an offence falling under the definition  of  theft,  robbery,  mischief  or  criminal trespass,  or which is an attempt to commit  theft, robbery, mischief or criminal trespass.

98. Right of private defence against the act of a person  of  unsound  mind,  etc.  __  When  an  act, which would otherwise be a certain offence, is not that  offence,  by  reason  of  the  youth,  the  want  of maturity  of  understanding,  the  unsoundness  of mind or the intoxication of  the person doing that

14

act, or by reason of any misconception on the part of that person, every person has the same right of private  defence  against  that  act  which  he  would have if the act were that offence.

99.  Acts  against  which  there  is  no  right  of private  defence. __  There  is  no  right  of  private defence against an act which does not reasonably cause  the  apprehension  of  death  or  of  grievous hurt, if done, or attempted to be done, by a public servant  acting  in  good  faith  under  colour  of  his office,  though  that  act,  may  not  be  strictly justifiable by law.

There is no right of private defence against an act which docs not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour of his office, though that direction may not be strictly justifiable by law.

There  is  no  right  of  private  defence  in  cases  in which  there  is  time  to  have  recourse  to  the protection of the public authorities.

Extent to which the right may be exercised. __ The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.”

22. Section 96 of the Indian Penal Code declares that an act

done in the exercise of the right of private defence is not an

offence. Section 97 specified the extent of the right of private

15

defence whereas Section 99 prescribes the limitations on the

exercise of this right.   

23. Section  100  of  the  Indian  Penal  Code  is  extracted  as

under:

“100. When the right of private defence of the body extends to causing death. __ The right of private  defence  of  the  body  extends,  under  the restrictions mentioned in the last preceding section, to the voluntary causing of  death or of any other harm  to  the  assailant,  if  the  offence  which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely: __

First. __  Such  an  assault  as  may  reasonably cause  the  apprehension  that  death  will otherwise be the consequence of such assault;

Secondly. __  Such  an  assault  as  may reasonably  cause  the  apprehension  that grievous  hurt  will  otherwise  be  the consequence of such assault;

Thirdly. __  An  assault  with  the  intention  of committing rape;

Fourthly. __  An  assault  with  the  intention  of gratifying unnatural lust;

Fifthly. __  An  assault  with  the  intention  of kidnapping or abducting;

16

Sixthly. __ An  assault  with  the  intention  of wrongfully  confining  a  person,  under circumstances  which  may  reasonably  cause him to  apprehend  that  he  will  be  unable  to have recourse to the public authorities for his release.”

24. Section 100 of the Indian Penal Code justifies the killing

of  an  assailant  when  apprehension  of  atrocious  crime

enumerated in several clauses of the section is shown to exist.

First  clause  of  section  100  applies  to  cases  where  there  is

reasonable  apprehension  of  death  while  second  clause  is

attracted where a person has a genuine apprehension that his

adversary is going to attack him and he reasonably believes

that the attack will result in a grievous hurt.  In that event he

can  go  to  the  extent  of  causing  the  latter’s  death  in  the

exercise of the right of private defence even though the latter

may not have inflicted any blow or injury on him.

25. It is settled position of law that in order to justify the act

of causing death of the assailant, the accused has simply to

satisfy  the  court  that  he  was  faced  with  an  assault  which

17

caused a reasonable apprehension of death or grievous hurt.

The question whether the apprehension was reasonable or not

is  a  question  of  fact  depending  upon  the  facts  and

circumstances of each case and no strait-jacket formula can

be prescribed in this regard.  The weapon used, the manner

and nature of assault and other surrounding circumstances

should  be  taken into  account  while  evaluating  whether  the

apprehension was justified or not?

26. In  the  present  case,  the  circumstances  indicate  that

Gajey Singh was assaulted on head by a sharp edged weapon

‘balkati’  causing  a  bone  deep  injury.   As  per  the  defence

version  there  were  four  assailants  who  had  come  well

prepared to assault at the door of their own house.  In such a

situation  accused  persons  could  have  a  reasonable

apprehension of death or at least of grievous hurt.  It was a

case of single gun shot which was not repeated.  Therefore, it

cannot be said that the accused persons had exceeded their

right of private defence in any manner.

18

27. In this case, the trial court convicted both the accused

and the High Court allowed the appeal filed by the accused

persons and acquitted them.   In the instant case, the injury

caused  on  Rajpal  Singh is  neither  superficial  nor  of  minor

nature. Non-explanation of the injuries on Rajpal Singh and

Gajey Singh has created serious doubt about the credibility of

the prosecution version.

28. It would be appropriate to recapitulate ratio of some of

the relevant cases decided by this court.

29. In  State of Karnataka v.  Jinappa Payappa Kudachi

& Others 1994 Supp. (1) SCC 178, this Court observed thus:

“6. The effect of non-explanation by the prosecution about the injuries on the accused persons depends on  the  facts  and  circumstances  of  each  case. Normally if there is such non-explanation, it may at the most give scope to argue that the accused had the right of private defence  or in general  that the prosecution  evidence  should  be  rejected  as  they have not come out with the whole truth particularly regarding the genesis of the occurrence...”  

30. In Rizan & Another v. State of Chhattisgarh (2003) 2

SCC 661, this Court observed thus:

19

“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 creditworthy, 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 (1976) 4 SCC 394]. In this case, as the courts below found  there  was  not  even  a  single  injury  on  the accused  persons,  while  PW  2  sustained  a  large number  of  injuries  and was hospitalized for  more than  a  month.  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  the  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 the right of private defence.”

20

31. In V. Subramani & Another v. State of T.N. (2005) 10

SCC 358 while dealing with the right of private defence this

court observed as under:-

“11. … 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…..”  

32. A  three-Judge  Bench  of  this  Court  in  Abdul  Rashid

Abdul Rahiman Patel & Others  v.  State of Maharashtra

(2007) 9 SCC 1, observed that it is well settled that if injuries

on the defence are not explained by the prosecution, the same

may be taken to be a ground to discard the prosecution case,

21

in  case  the  truthfulness  of  prosecution  case  is  otherwise

doubted.  But, in cases like the present one, where there is

consistent  evidence  of  the  injured  eyewitnesses  apart  from

evidence of independent eyewitnesses,  even if  it  is assumed

that  the  prosecution  has  failed  to  explain  the  minor  and

simple injuries on the defence, the same cannot be taken to be

a ground to reject  the testimony of such witnesses.   In the

instant case,  the injuries were neither superficial  nor minor

therefore,  non-explanation of  serious  injuries  in the  instant

case doubts the very genesis of the prosecution version.   

33. We  have  heard  the  learned  counsel  for  the  parties  at

length.  The view which has been taken by the High Court is

certainly a possible and plausible view.   Therefore, we do not

think it appropriate to interfere with the impugned judgment.   

34. The  appeal  being  devoid  of  any  merit  is  accordingly

dismissed.

22

….………………………..J.  (Dalveer Bhandari)

……………………………J.  (Harjit Singh Bedi)

New Delhi; February 24, 2009.

23