Ram Pyare Mishra Vs.
Prem Shanker & Ors.  INSC 1409 (22 August 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 181 OF 2001 Ram
Pyare Mishra ...Appellant Versus Prem Shanker and Ors. ...Respondents WITH
CRIMINAL APPEAL NO.182 OF 2001
Dr. ARIJIT PASAYAT,
in these appeals is to the judgment of a Division Bench of the Allahabad High
Court accepting the appeal filed by the respondents who were found guilty of
offences punishable under Section 302 read with Section of the Indian Penal
Code, 1860 (in short the `IPC'). The High Court held that if on taking overall
view of the case right of self defence is made out or looks probable from the
evidence on record, that right should not be construed narrowly because the
right of self defence is a very valuable right and it has a social purpose.
facts as projected by prosecution in a nutshell are as follows:
The incident occurred
on 12.7.1978 at about 5.30 a.m.
The respondents 1 and
2 are brothers and sons of Sheo Balak Misra. On the aforesaid date and time the
accused respondents armed with knife and lathi respectively arrived at the
`Gotha' of the Mohan Mishra (hereinafter referred to as the `deceased') and accused
Hari Shanker started beating the deceased with lathi and also asked his brother
Prem Shanker to kill him, whereupon Prem Shanker assaulted the deceased with
knife. On hearing the cries of deceased, his brother R.P. Mishra (PW-1) who was
washing his hands at the Hand Pump installed in the east of `Gotha' of Ramakant
Mishra, rushed to the scene of occurrence. The cries also attracted Ramakant
Mishra (P.W.2), Suresh Mishra (P.W.4), Shiv Sahai and Vibhuti Mishra. Ramakant
Mishra tried to rescue the deceased but he too was assaulted by Prem Shanker
with knife. Deceased fell down on the ground. The witnesses succeeded in
apprehending Prem Shanker along with the knife with which he had assaulted the
deceased and Ramakant.
However, accused Hari
Shanker succeeded in making good his escape. Thereafter Ram Pyare Mishra and
other witnesses proceeded to Police Station Kotwali along with Mohan Mishra and
accused Prem Shanker on tractor trolley of Gangotri Mishra. Before they could
reach police station, Mohan Mishra died on the way. R.P. Mishra (P.W.1)
prepared F.I.R. (Ex. Ka. I) in his own handwriting and presented the same at
Police Station Kotwali at 6.30 a.m. on the same day. Prem Shanker and blood
stained knife, (Ex.1) recovered from him were handed over to police at the
police station, in respect of which memo Ex. Ka. 2 were prepared by Moharrir
(PW-6) who also prepared Check report and registered the case in general diary.
S.I. Harsh Nath Singh (PW-5) was present at the police station when the F.I.R.
was lodged. He took up investigation and recorded the statement of first
information at the police station. S.I. Radhey Shyam Tewari conducted inquest
on the dead body of Mohan Mishra, which had been brought to the police station
by first informant and others. The dead body was then sent for postmortem
examination with constable Ram Asrey and Rang Nath. After recording the
statements of Shiv Sahai and Suresh Mishra (P.W.4), the Investigating Officer
reached the place of occurrence along with first informant and witness Shiv
Sahai. He made inspection of the scene of occurrence and prepared site plan Ex.
Ka.13. The place where blood was found has been shown by letter `A' in the site
plan. Hari Shanker was arrested on the same day.
Mishra was, however, interrogated on 13.7.1978 and after completing the
investigation charge sheet Ex. Ka 15 was submitted against both the accused
Dr. Vermpal conducted
autopsy on the dead body of Mohan Mishra on 12-7-78 at 12 noon and following
ante mortem injuries were found.
1. Incised wound
2" 1/4" x skin deep on right side forehead 1" above the right
eye brow and 1-1/2"
away from right ear
margins clean cut, gaping present, blood clots present and wound was
2. Incised wound
l" x 1/4" x muscle deep on middle of left arm margins clean gaping
present, blood clots present.
3. Punctured wound
1-1/4'' x 1/2" x chest cavity deep on right side chest 1" outer to
mid line chest and 4" away and above to right nipple, lying vertically,
margins clean cut gaping present, blood clots present.
In the internal
examination pleura was found congested and cut underneath injury No.3, Right
lung had also a cut Mark 3/4" x 1/2" pulmonary vessels had also been
cut. The chest cavity 5 contained fresh blood about 520 ml. Stomach was empty
while large intestines contained gases and faecal matter. In the opinion of the
doctor death was due to shock and hemorrhage as a result of ante mortem
injuries. The postmortem report is Ex.Ka.4.
The motive for
assaulting Mohan Mishra as alleged in the first information report was that on
10-7-78 Prem Shanker had made an attempt to have carnal intercourse with
Rakesh, son of deceased and Rakesh told this fact to his father.
accused Prem Shanker whereupon the latter threatened him with dire
Since the accused
persons pleaded innocence, trial was held. In order to substantiate the
accusations six witnesses were produced. R.P. Mishra (PW-1) is the first
informant and younger brother of the deceased. Ramakant Mishra (PW-2) is an eye
witness. It is to be noted that PW-1 was the injured witness. The accused
persons took the stand that on the date of occurrence accused Prem Shanker went
to throw cow dung in the field in the morning and he was assaulted by Mohan
Mishra with lathi. On hearing his cries his younger brother Hari Shanker came
there with spear in his hand to save Prem Shanker. He assaulted the deceased.
As noted above, the
trial Court found the evidence of eye witnesses to be credible, cogent and
recorded conviction. In appeal, the High Court found substance in the plea of
exercise of right of private defence and directed acquittal.
No.181 of 2001 has been filed by the complainant while State of U.P. has filed
other Criminal Appeal No.182 of 2001.
support of the appeals, learned counsel for the appellants submitted that the
High Court has acted on surmises and conjectures and has accepted the plea of
exercise of right of private defence. The High Court's conclusion as regards non-mention
in the FIR that the witness managed to evade the lathi blow or about the injury
on the accused are legally untenable. The High Court has not examined the
question as to whether the right of private defence as claimed to have been
exercised has been exceeded.
It was pointed out
that the witness stated about the assault by lathi but in the instant case the
deceased does not appear to have received any lathi blow. Since lathi was found
at the spot as claimed the defence version, the High Court probabilised that
deceased had made an assault on accused Prem Shanker by lathi. The genesis and
origin of the occurrence has been suppressed and true facts have not been
presented. The High Court, it is submitted, accepted the plea of right of
private defence but without any material to substantiate the plea, the High
Court came to an abrupt conclusion that the right has been exercised and the
accused persons were acting in self defence. The High Court also came to a
conclusion that the injuries on accused Prem Shanker were not satisfactorily
explained. It was pointed out that those injuries were superficial in nature.
To similar effect is the stand taken by the State.
counsel for the accused respondents submitted that in the case of acquittal if
two views are possible, the view in favour of the accused has to be accepted.
The High Court on analyzing the evidence came to a conclusion that the accused
persons were exercising the right of private defence.
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 11 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
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.
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.
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 destroyed or
has been put to route, there can be no occasion to exercise the right of
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)
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.
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.
the illuminating words of Russel (Russel on Crime, 11th Edition Volume I at
"....a man is
justified in resisting by force anyone who manifestly intends and endeavours by
violence or surprise to commit 17 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."
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 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.
above position was highlighted in V. Subramani and Anr. vs. State of Tamil Nadu
(2005 (10) SCC 358).
the instant case the High Court held that the lathi injuries were there but
came to erroneous conclusion that the injuries appear to have been inflicted in
a different manner.
The High Court also
came to a conclusion that if the spear was used blunt injury could not have
the High Court overlooked that the categorical finding recorded by the trial
Court was that one side of the weapon was blunt and other side was sharp and
one blunt injury was explained. The High Court appears to have wrongly
interpreted the opinion of the doctor. The genesis according to the High Court
has not been established.
If that be so, there
was no question of exercise of right of private defence. The High Court's
conclusion as regards shifting the onus on the prosecution is also without any
legal foundation. It is to be noted that nothing was found in the field as was
pleaded by the defence to substantiate the right of private defence. The FIR
was promptly lodged. The doctor had opined that the injury was possible with
knife but the High Court without any discussion held otherwise. So far as the
alleged non-explanation of injuries on the accused aspect is concerned, the
High Court clearly overlooked the relevant materials. From the evidence it is
clear that after the accused persons assaulted the deceased and the injured
witnesses they were beaten by the villagers. In the FIR also there is mention
about the beating given by villagers. The High Court held that the details of
the assaults were not given in the FIR. In this context, the view expressed by
this Court in Chacko @ Aniyan Kunju and Ors. v. State of Kerala (2004 (12) SCC
269) needs to be noted. In paras 7 and 8 it was observed as follows:
"7. Coming to
the question whether on the basis of a solitary evidence conviction can be
maintained. A bare reference of Section 134 of the Indian Evidence Act, 1872
(in short `the Evidence Act') would suffice. The provision clearly states that
no particular number of witnesses is required to establish the case.
Conviction can be
based on the testimony of single witness if he is wholly reliable.
Corroboration may be
necessary when he is only partially reliable. If the evidence is unblemished
and beyond all possible criticism and the Court is satisfied that the witness
was speaking the truth then on his evidence alone conviction can be maintained.
Undisputedly, there were injuries found on the body of the accused persons on
medical evidence. That 20 per se cannot be a ground to totally discard the
prosecution version. This is a factor which has to be weighed along with other
materials to see whether the prosecution version is reliable, cogent and
trustworthy. When the case of the prosecution is supported by an eyewitness who
is found to be truthful, as well, mere non-explanation of the injuries on the
accused persons cannot be a foundation for discarding the prosecution version.
dying declaration was found to be acceptable.
8. Other plea
emphasized related to alleged exercise of right of private defence. Merely
because there was a quarrel and two accused persons sustained injuries, that
does not confer a right of private defence extending to the extent of causing
death as in this case.
Though such right
cannot be weighed in golden scales, it has to be established that the accused
persons were under such grave apprehension about the safety of their life and
property that retaliation to the extent done was absolutely necessary. No
evidence much less cogent and credible was adduced in this regard. The right of
private defence as claimed by the accused persons have been rightly
far as non-explanation of superficial injuries on the accused persons is
concerned, in Anil Kumar v. State of U.P. (2004 (13) SCC 257), it was held as
of injuries by the prosecution will not affect prosecution case where 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 outweighs the effect of the omission on the part of
prosecution to explain the injuries. As observed by this Court in Ramlagan
Singh v. State of Bihar (AIR 1972 SC 2593) prosecution is not called upon in
all cases to explain the injuries received by the accused persons. It is for
the defence to put questions to the prosecution witnesses regarding the
injuries of the accused persons.
When that is not
done, there is no occasion for the prosecution witnesses to explain any injury
on the person of an accused. In Hare krishna Singh and Ors. v. State of Bihar
(AIR 1988 SC 863), it was observed that the obligation of the prosecution to
explain the injuries sustained by the accused in the same occurrence may not
arise in each and every case. In other words, it is not an invariable rule that
the prosecution has to explain the injuries sustained by the accused in the
same occurrence. If the witnesses examined on behalf of the prosecution are
believed by the Court in proof of guilt of the accused beyond reasonable doubt,
question of obligation of prosecution to explain injuries sustained by the
accused will not arise. When the prosecution comes with a definite case that
the offence has been committed by the accused and proves its case beyond any
reasonable doubt, it becomes hardly necessary for the prosecution to again
explain how and under what circumstances injuries have been inflicted on the
person of the accused. It is 22 more so when the injuries are simple or
superficial in nature. In the case at hand, trifle and superficial injuries on
accused are of little assistance to them to throw doubt on veracity of
prosecution case. (See Surendra Paswan v. State of Jharkhand (2003) 8 Supreme 476)."
basic question which was to be considered by the High Court was that even if
the right of private defence was exercised, whether that was exceeded. In the
instant case, the evidence clearly shows that though there may be at some point
of time the exercise of right of private defence by the respondents existed,
the same has been exceeded. The respondents are therefore convicted of offence
punishable under Section 304 Part I IPC. Custodial sentence of 8 years would
meet the ends of justice. The appeals are allowed to the aforesaid extent. The
respondents who are on bail shall surrender to custody forthwith to serve the
remainder of sentence.
(Dr. ARIJIT PASAYAT)
23 (P. SATHASIVAM)