State of U.P. Vs.
Gajey Singh and ANR.  INSC 404 (24 February 2009)
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
Dalveer Bhandari, J.
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
facts which are necessary to dispose of this appeal are recapitulated as under:
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
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 3 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.
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.
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
also took the gun which was kept in their room in his custody.
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.
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 5 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.
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.
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 6 Singh and he was detained for three days at the police
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 = cm above eye brow. Placed
Margins clear. Fresh
blood was coming out. X-ray advised.
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.
wound 1cm x = cm x muscle deep on the tip of the left thumb outer side margins
lacerated. Blood coming out on cleaning."
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.
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 8 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.
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.
High Court found sufficient weightage in the submissions of the learned counsel
for the respondents.
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 10 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.
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.
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 12 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.
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
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 13 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
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.
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.
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?
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 15 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
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
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 16 defence whereas Section 99 prescribes the limitations
on the exercise of this right.
100 of the Indian Penal Code is extracted as under:
"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;
17 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."
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.
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 caused a reasonable apprehension of death or grievous
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?
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
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.
would be appropriate to recapitulate ratio of some of the relevant cases
decided by this court.
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..."
Rizan & Another v. State of Chhattisgarh (2003) 2 SCC 661, this Court
"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
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."
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....."
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, 22 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.
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
appeal being devoid of any merit is accordingly dismissed.
(Harjit Singh Bedi)