Singh Vs. Poonam Singh & Ors  Insc 443 (10 September 2003)
Raju & Arijit Pasayat.
Appeal No.1637 of 1996] ARIJIT PASAYAT, J.
appeals are by the informant and the State of Rajasthan questioning the correctness and legality of judgment of the
High Court of Rajasthan at Jodhpur
directing acquittal of the respondents-accused persons.
factual antecedents which the prosecution unfolded during trial are as follows:-
There was long-standing litigation between Mohan Singh (hereinafter referred to
as 'the deceased') and his brother and other relatives on one hand and the
accused persons on the other. On 10.6.1984, the fateful day in the morning hours
deceased-Mohan Singh and his brother Bherusingh (PW-2) and other relatives were
ploughing the disputed land. Accused-respondents Poonam Singh, Harisingh, Devaram,
Gamna and 12 others acquitted by Trial Court told them not to do so.
asserted that the field belonged to them and they will not allow the
complainant side to plough the field. For a long time assertions and
counter-assertions went on. Thereafter accused Poonamsingh hit on the head of Mohansingh
with a lavali (kind of stick) and accused-Devaram hit on his shoulder by a Bewadi
(form of stick) due to which, he having become unconscious fell down.
Thereafter accused persons started assaulting and inflicting injuries. The
incident was seen by Godawari (PW-4), Arjunsingh (PW-16), Geeta (PW-13), Babusingh
(PW-21), Bherusingh (PW-2) and others. They were also injured being assaulted
by the accused persons. After this first information report was lodged by Bheru
Singh at about 8.30
p.m. and investigation
was undertaken. Mohan Singh was admitted in the Pali Hospital for treatment and subsequently he
breathed his last on 11.6.84 around 11.00 a.m.
order to substantiate its version the prosecution examined 34 witnesses. The
accused persons pleaded innocence and examined 4 witnesses. On consideration of
evidence on record, the Trial Court came to hold that the land was in possession
of the complainant side, though revenue records were in favour of the
accused-appellants with their companions. Having held so, it was observed that
all the accused were to be acquitted of the charges under Section 447 of the
Indian Penal Code, 1860 (in short 'IPC'). It was held that though right of
private defence was available, it was exceeded. Even though the accused persons
had sustained injuries, yet the maximum they could have done was to exercise
the right of private defence by inflicting simple injuries. Ultimately, it was
held that present respondents were guilty of offences punishable under Sections
304 Part-II and 323 IPC for causing death of Mohansingh and inflicting injuries
on Godawari (PW-4). The conviction and sentences were challenged by the four
respondents-accused. The State did not challenge the acquittal or the
alteration of conviction. Similar was the position vis-à-vis the informant.
High Court by the impugned judgment held that the case was one where the
accused persons had exercised the right of private defence and had not exceeded
it. The fact that the accused persons received injuries was considered to be of
great significance. The acquittal in respect of offences relatable to Section
447 was also considered to be of vital importance in deciding the question
about the right of private defence. Accordingly it was held that the accused
persons were entitled to exercise the right available in respect of private defence.
Both the State and the informant have questioned the High Court's conclusions.
support of the appeals, learned counsel for the State and the informant
submitted that the parameters of right of private defence as provided in IPC
have been completely lost sight of by the High Court. It was, therefore, submitted
that the High Court was not justified in directing acquittal. In addition,
learned counsel for the informant submitted that though the Trial Court appears
to have observed that the right of private defence was available to the accused
persons, yet it was contrary to the findings recorded about the complainants
having possession of the disputed land. In view of these findings, the
observations made by the Trial Court, can be held to have been rendered by
assuming about the possession by the accused persons. Responding to the
aforesaid pleas, learned counsel for the accused-respondents has submitted that
the possession of the accused persons has been established. It has been
categorically recorded that the revenue records stand in the name of accused persons.
This conclusion is reinforced by the acquittal in relation to offence
punishable under Section 447 IPC.
accused persons had sustained injuries and, therefore, the High Court was
justified in holding that the right of private defence had not been exercised
in excess of the permitted limits.
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 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
of 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 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).
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:
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 to show as in a
civil case that the preponderance of probabilities is in favour of his plea.
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 probabilis 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
the person exercising the right; or
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.
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 that 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.
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).
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 moment,
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 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 a finding of fact. Though acquittal
in respect of offence punishable under Section 447 IPC is not always
determinative of the question whether right of private defence has been
exceeded, in a given case the same assumes importance as in the present case.
It has been significantly noted by both the Courts below that the attacks were
not premeditated. On the contrary, for several hours, the parties were
discussing their respective stands (may be with some amount of verbal
aggression), and that aspect has indelible importance while assessing the basic
issue regarding exercise of the right of private defence.
background of legal and factual position indicated above, the appeals are
without any merit and deserve dismissal, which we direct.