Raghbir Singh &
Ors. Vs. State of Haryana  INSC 1937 (12 November 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1776 OF 2008
(Arising out of S.L.P. (Crl.) No.3647 of 2008) Raghbir Singh and Ors.
...Appellants State of Haryana ...Respondent
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Punjab and Haryana
High Court dismissing the appeal (Crl. Appeal No.68-DB of 1998) so far as the appellants
are concerned. However, co- accused Bhagmal was acquitted.
appellants were convicted for offences punishable under Sections 148, 302 read
with Section 149 and 323/149 of the Indian Penal Code, 1860 (in short `the
IPC') but they were acquitted of the charge under Section 506 IPC. Co-accused
Bhagmal was convicted along with the appellants, but, as noted above, he was
acquitted by the High Court.
prosecution story, in a nutshell is as follows.
A case was registered
on the basis of statement (Exh.P.L.) of Krishan (complainant-PW-5). As per his
statement, joint land owned by his father Naurang (PW6) and his three brothers
was earlier partitioned. In that partition, the land in which a well and a room
had been constructed by Naurang, fell to the share of his brother Bhagmal and
in lieu of it, he was to pay Rs.6600/- to Naurang. Inspite of repeated demands,
he did not pay that amount and on December 30, 1994, he refused to pay the
same. On December 30, 1994, at about 1 P.M., complainant-Krishan was standing
at the door of his house and his brother Attar Singh (hereinafter referred to
as `the deceased') was standing in front of his house in the street. All the
appellants, armed with `Lathis', came there and started giving blows to the
deceased saying that he would not be spared. Krishan came to rescue his
brother, whereupon, appellant Raghbir Singh gave `Lathi' blow on the right side
of his chest. Appellant Mukhtiar Singh also inflicted a `Lathi' blow hitting
Krishan on the back side of his neck. He fell down on the ground and in that
position appellant Kuldeep Singh gave him a `Lathi' blow on his waist and
appellant Raghbir Singh inflicted a `Lathi' blow on his nose. On hearing the
alarm raised by Krishan, his father Naurang (PW6) and his mother Smt.
Lichhma came out of
the house. Krishan PW-5 and Attar Singh the deceased also inflicted some
injuries to the appellants in self-defence.
On December 30, 1994,
Dr. Ramphal (PW-1) medico legally examined Krishan (PW-5) and found four
contusions on his nose, back of right scapular region, right side of chest and
the occipital region. As per opinion of the Doctor, the kind of weapon used was
On the same day, Dr.
Ramphal (PW-1) medico legally examined Attar Singh and found eight injuries on
his person which were a lacerated wound on the left supra orbital ridge, an
abrasion on the left eye, two contusions on left cheek and right side of
forehead, bleeding on nose but no external injury, a tooth was missing in the
lower jaw in frontal part, an abrasion on the left side of chest and an
abrasion on left forearm. According to the Doctor, the kind of weapon used was
On December 31, 1994,
Attar Singh succumbed to his injuries.
Post mortem on his
dead body was conducted by Dr. A.P. Sharma (PW-2) on December 31, 1994.
According to his opinion, the cause of death was due to the injuries on the
head and spleen which were ante mortem in nature and sufficient to cause death
in the ordinary course of nature.
After completion of
investigation, challan against the accused was presented in the Committing
In order to prove the
offences charged against the accused- appellants, the prosecution examined
After closure of the
prosecution evidence, statements of the accused were recorded under Section 313
of the Code of Criminal Procedure, 1973 (in short the `Cr.P.C.') in which they
denied the prosecution allegations and pleaded innocence. Plea taken by them is
that Krishan and Attar Singh had gone to the house of accused-Bhagmal armed with
lathis and had caused injuries to Bhagmal and accused-Kuldeep Singh as well as
Smt. Krishna wife of Kartar Singh and Smt. Shakuntla wife of Mukhtiar Singh.
The defence plea taken by the accused is that only Bhagmal and Kuldeep Singh
accused were present at the time of occurrence and they had caused injuries to
Krishan and Attar Singh in self-defence and that the other four accused were
not present at the time of occurrence. They also examined two witnesses in
The Trial Court, on
consideration of the material on record, more particularly, the evidence of
Krishan PW-5, who was injured witness and his father Naurang PW-6, held the
appellant guilty and convicted and sentenced them, as noted above.
The convicted accused
persons preferred an appeal before the High Court which was disposed of by the
impugned judgment dismissing the same qua the appellants while directing
acquittal of Bhag Mal.
support of the appeal, learned counsel for the appellant submitted that the
accused persons acted in self defence. The occurrence took place in course of a
sudden quarrel and the weapon was a lathi, therefore, Section 302 IPC has no
counsel for the State, on the other hand, supported the judgment of the High
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 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.
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.
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 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 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  1 SCC 458
and Sekar alias Raja Sekharan v. State represented by Inspector of Police, T.N.
 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 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
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."
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 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.
the background facts as highlighted above when tested in the backdrop of the
legal principles noted supra the inevitable conclusion is that the accused
persons had not established that they were exercising right of private defence.
But the assaults were made in course of sudden quarrel and Exception 4 to
Section 300 IPC applies. Considering the background facts as noted above, it
would be proper to alter the conviction from Section 302 IPC to Section 304
Part I IPC. Custodial sentence of 10 years would meet the ends of justice.
appeal is accordingly disposed of.
(Dr. ARIJIT PASAYAT)