& Ors Vs. State of Haryana  Insc 924 (8 December 2006)
Mathur & D.K. Jain D.K. Jain, J.:
three appellants, namely, Dharam, Raj Singh and Raj Kumar, alongwith two
others, Kitaba and Bijender, faced trial in Sessions case No. 135 of 1994 (Sonipat)
for having committed offences under Sections 148, 302, 323 and 324/149 of the
Indian Penal Code, 1860 (for short "IPC"). The Trial Court found them
guilty; convicted them for offences punishable under all the aforementioned
Sections and sentenced them to suffer the following punishments:
PUNISHMENT 148 IPC
undergo RI for two years and to pay a fine of Rs.5000/- each and in default
thereof to undergo RI for six months.
IPC To undergo RI for life as also to pay a fine of Rs.20,000/- each and in
default thereof to undergo RI for three years 324/149 IPC To undergo RI for two
years as also to pay a fine of Rs.5000/- each and in default thereof to undergo
RI for six months 323/149 IPC To undergo RI for six months" All the convicts
preferred common appeal to the Punjab and Haryana High Court, but were
unsuccessful. This appeal by special leave is brought by the three appellants
before us against the order of the High Court.
appellants and the deceased are closely related.
no.1, including the deceased - Partap Singh, were seven brothers, out of whom
he and four others were from one mother and two from the other. The case set up
by the prosecution, in brief, was that on 16.7.1999 Amarjit (PW-8) son of the
deceased made a statement before the S.H.O., Police Station Gohana to the
effect that Partap Singh along with his four brothers from one mother were
having a joint khewat. One of the brothers, namely, Haria was unmarried and was
living with his father, who also used to cultivate the share of land belonging
to Haria. However, his uncle, appellant no.1 and his sons, Raj Singh and Raj Kanwal
(as per High Court Judgement), appellants no.2 and 3 respectively as well as Kitaba,
his uncle and Bijender s/o Kitaba were holding a grudge against his father, the
deceased, for not partitioning the land belonging to Haria. A day before the
incident all of them had asked his father to divide the land of Haria, failing
which he would not be allowed to see the sun of the next day. On 16.7.1999 at
about 6.00 a.m., he alongwith his mother and father - the deceased, his uncles Jagdish
and Raghbir had gone to the fields to fetch grass; all the aforementioned five
persons came to the fields belonging to the deceased and his brothers and started
erecting a boundary wall; when they were stopped from doing so, all the five
went towards their tube well and came back with arms, namely, Phali and Farsas;
Dharam raised a Lalkara to teach a lesson to the deceased's party for not
permitting the raising of boundary, upon which Bijender gave a spear blow on
the head of the deceased whereas Raj Singh gave second spear blow on the head
of the deceased; when he and others intervened, Bijender hit him with a spear
in the right arm. Raj Kumar and Dharam (as per the Trial Court Judgment) also
gave spear blows on the head of the deceased, as a result whereof he fell down
and when his uncle Raghbir intervened, Kitaba inflicted a Phali blow on the
left side of his chest. In the meanwhile, crowd gathered at the spot and on
seeing them all the five accused fled alongwith their respective weapons. The
deceased was brought to Civil Hospital, Gohana where he was declared brought dead. Dr. Rajesh
Kumar, PW-12 conducted the post mortem on the dead body of the deceased and
found the following injuries on his person:
left parietal bone 10cmx3cmx3cm wound.
of the wound were well delineated.
bone was fractured and fractured bone had pierced the brain matter. Posterior
to this wound, there was horizontal wound 3 cm x 1 cm on scalp and just behind
this wound there was 4 cm x 2 cm lacerated wound." He also examined Dharam,
appellant no.1, Raj Kumar, appellant no.3, Ranbir and Kitaba and found various
injuries on their person. A major injury found on the person of Dharam was
"Incised wound 2cm x 1cm x 5cm deep on left upper part of chest, just
lateral to sternum" and that on Kitaba a "5 x 5 cm wound right hypochondrium.
Depth of the wound could not be ascertained."
support of its case, the prosecution examined as many as 13 witnesses. In their
statements made under Section 313 of the Code of Criminal Procedure, 1973, the
appellants, without disputing their presence or participation in the fight,
took a common plea of self defence in the following terms:
the day of alleged occurrence, Partap Singh deceased and his son Amarjeet
started the tubewell of Dharma for irrigation of their fields without his
permission and when he protested and switched off the electricity, Partap armed
with Farsa and Amarjeet armed with jelly attacked him. On his alarm, we reached
there and tried to save him from them.
were also assaulted by the complainant side and he was given as many as six
injuries by Farsa. Dharma picked up a Farsa lying by the side of Kotha of tubewell
and caused only one injury to Partap deceased and Amarjeet to save himself and
also to save to me and Kitaba. Partap Singh died at the spot and we took his
dead body first to the police and police of police station Gohana had taken the
dead body of Partap Singh to PHC, Gohana. I am innocent and falsely implicated
in this case."
Rejecting the plea of private defence, the learned Trial Court came to the
conclusion that the appellants, armed with deadly weapons, with the common
intention to commit murder, had attacked the deceased as well as his other
family members, including the complainant and were, thus, guilty of offences
under the aforementioned Sections. Analysing the evidence, as noted above, the
High Court has concluded that the conviction was justified.
Jaspal Singh, learned senior counsel, appearing for the appellants has assailed
the conviction of the appellants mainly on the ground that the plea of self defence
raised by the appellants has not been considered in its correct perspective
both by the Trial Court as well as the High Court. It is argued that in fact
the High Court has altogether failed to consider this aspect of the matter.
submitted that in the incident, in which the two parties clashed and there were
allegations of assaults on each other, it was the duty of the prosecution to
have explained the injuries sustained by the appellants, particularly appellant
no. 1, who had six serious injuries on his person. It is urged that
non-explanation of the injuries sustained by the members of the accused party
shows that the prosecution has not come out with the truthful version of the
incident and has suppressed the genesis of the crime. Learned counsel has drawn
our attention to the evidence of PW-12, who had examined appellants No. 1 and 3
and other members of their party, to buttress the argument that the nature of
injuries sustained by the appellants indicate that they had suffered injuries
in exercise of right of private defence. In the alternative, learned senior
counsel has contended that it being a case of sudden fight, the case falls
within the ambit of sub-section (4) of Section 300 IPC and, therefore, at best
offence under Section 304 part-I or II could be made out against the
contra, learned counsel appearing for the State, while supporting the impugned
judgment, has contended that the appellants armed with deadly weapons and with
the common intention to murder had attacked the deceased's party and,
therefore, being the aggressors, the plea of self defence was not available to
Thus, the question which falls for our consideration in this appeal lies within
a narrow compass. The question is whether or not the appellants had assaulted
the deceased and his party in exercise of the right of private defence?
Section 96 IPC provides that nothing is an offence which is done in exercise of
the right of private defence.
expression "right of private defence" is not defined in the Section.
The Section merely indicates that nothing is an offence which is done in the
exercise of such right.
Section 97 IPC recognises the right of a person not only to defend his own or
another's body, it also embraces the protection of property, whether one's own
or another person's against certain specified offences, namely, theft, robbery,
mischief and criminal trespass.
99 IPC lays down exceptions to which rule of self defence is subject. Section
100 IPC provides, inter alia, that the right of private defence of the body
extends, under the restrictions mentioned in Section 99 IPC, to the voluntary
causing of death, if the offence which occasions the exercise of the right be
an assault as may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such assault. In other words, if the person
claiming the right of private defence has to face the assailant, who can be
reasonably apprehended to cause grievous hurt to him, it would be open to him
to defend himself by causing the death of the assailant.
scope of right of private defence is further explained in Sections 102 and 105
IPC, which deal with commencement and continuance of the right of private defence
of body and property respectively. According to these provisions the right
commences, as soon as a reasonable apprehension of danger to the body arises
from an attempt or threat, to commit offence, although the offence may not have
been committed but not until there is that reasonable apprehension. The right
lasts so long as reasonable apprehension of the danger to the body continues
(See: Jai Dev vs. State of Punjab).
put it pithily, the right of private defence is a defensive right. It is
neither a right of aggression nor of reprisal. There is no right of private defence
where there is no apprehension of danger. The right of private defence is
available only to one who is suddenly confronted with the necessity of averting
an impending danger not of self creation. Necessity must be present, real or
apparent (See: Laxman Sahu vs. State of Orissa).
Thus, the basic principle underlying the doctrine of the right of private defence
is that when an individual or his property is faced with a danger and immediate
aid from the state machinery is not readily available, that individual is
entitled to protect himself and his property.
being so, the necessary corollary is that the violence which the citizen
defending himself or his property is entitled to use must not be unduly
disproportionate to the injury which is sought to be averted or which is
reasonably apprehended and should not exceed its legitimate purpose. We may,
however, hasten to add that the means and the force a threatened person adopts
at the spur of the moment to ward off the danger and to save himself or his
property cannot be weighed in golden scales. It is neither possible nor prudent
to lay down abstract parameters which can be applied to determine as to whether
the means and force adopted by the threatened person was proper or not. Answer
to such a question depends upon host of factors like the prevailing
circumstances at the spot, his feelings at the relevant time; the confusion and
the excitement depending on the nature of assault on him etc. Nonetheless, the
exercise of the right of private defence can never be vindictive or malicious.
It would be repugnant to the very concept of private defence.
is trite that the burden of establishing the plea of self defence is on the
accused but it is not as onerous as the one that lies on the prosecution. While
the prosecution is required to prove its case beyond reasonable doubt, the
accused need not establish the plea of self defence to the hilt and may
discharge the onus by showing preponderance of probabilities in favour of that
plea on the basis of the material on record (See: Munshi Ram and others vs.
Delhi Administration ; The State of Gujarat vs. Bai Fatima and another and Salim
Zia vs. State of Uttar
order to find out whether right of private defence is available or not, the
injuries received by an accused, the imminence of threat to his safety, the
injuries caused by the accused and circumstances whether the accused had time
to have recourse to public authorities are relevant factors, yet the number of
injuries is not always considered to be a safe criterion for determining who
the aggressor was. It can also not be laid down as an abstract proposition of
law that whenever injuries are on the body of the accused person, the
presumption must necessarily be raised that the accused person had caused
injuries in exercise of the right of private defence. The defence has to
further establish that the injury 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's case in all cases
(See: Sekar alias Raja Sekharan vs. State represented by Inspector of Police,
Tamil Nadu and V. Subramani and another vs. State of Tamil Nadu ).
the light of the legal position, briefly noted above, we proceed to examine as
to whether it could be said that the appellants had assaulted the deceased and
other members of his family in exercise of their right of private defence?
The plea of self defence has been rejected by the Trial Court, inter alia,
observing that the danger was to the life of the deceased and his party and not
to the appellants. However, the High Court has dealt with the issue more
elaborately. Referring to the testimony of investigating officer S.I. Amardas
(PW-7) and Rajinder Singh Patwari (PW-6) who had prepared the site plan
(Exhibit-PC) after identification of place of occurrence by PW-10, the High
Court has recorded a clear finding that the plea of the appellants that the
occurrence took place on or near their tube-well had been completely demolished
by the prosecution. The High Court has affirmed the finding recorded by the
Trial Court that the occurrence had taken place in the fields belonging to the
deceased Partap and his family. Besides, the statement of the appellants
recorded under Section 313 Criminal Procedure Code, 1973, extracted above,
proves their presence and participation in the fight. These two factors clearly
prove that the appellants went and attacked with lethal weapons the deceased
and his family members in the latter's fields. We are convinced that in the
light of the evidence on record they were the aggressors. Thus, being members
of the aggressors' party none of the appellants can claim right of self-defence.
As observed herein above, right to defend does not include a right to launch an
offensive or aggression. Therefore, we have no hesitation in holding that the
appellants have failed to establish that they were exercising right of private defence.
The other question which now remains to be considered is as to what is the
exact nature of the offence committed by the appellants. The injury, which
proved to be fatal, is 10cmx3cmx3cm on left parietal bone which fractured the
underlying bone and pierced the brain matter. We do not propose to hold that
such an injury, if caused, would not attract the provisions of Section 302 IPC.
Nevertheless, the question which requires serious consideration is whether
having regard to the peculiar circumstances in which the incident took place
and the fact that the deceased and the appellants happened to be blood
relations, this particular injury, which was found to be sufficient in the
ordinary course of nature to cause death in the instant case, was an injury
intended by the appellants. Having regard to the nature of the injuries
sustained by both the closely related parties, we are of the view that the
fatal injury was not inflicted with the intention to cause death or an injury
likely to cause death of the deceased. We feel that in the very nature of
things, the appellants could not have entertained any intention to cause death
of their brother/uncle. We are, therefore, of the opinion that the offence
committed by the appellants would fall within the ambit of Section 304 Part-II
Consequently, we partly allow the appeal; set aside the conviction of the
appellants under Section 302 IPC and instead convict them under Section 304
of rigorous imprisonment for seven years would meet the ends of justice. Other
sentences awarded to them would remain unaltered and shall run concurrently.