Dalavai and ANR. Vs. State of Karnataka  INSC 660 (31 March 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 672 OF 2005
Hanumantappa Bhimappa ..Appellants Dalavai & Anr. versus State of Karnataka
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Karnataka High
Court upholding the convictions of the appellants for offence punishable under
Section 302 of the Indian Penal Code, 1860 (in short the `IPC'). The appellant
No.1 was additionally convicted for offence punishable under Section 326 IPC.
version in a nutshell are as follows:
accused nos.1 to 3 - the deceased and injured belonged to Salahalli Village.
There is a tea shop of the accused No.1 situated outside the village, by the
side of the compound of which a public road is situated, some jail hedges have
grown in the said land of accused No.1 by the other side of the road, which
have over grown obstructing to some extent the public path. With regard to the
inconvenience caused to the passers-by and the persons taking vehicles like
tractor, the complainant - Irappa Aijappa Kuri (P.W.5) often complained to the
accused No. l to cut the excess hedges, to which the accused No.1 paid no heed.
On 1.2.1995, while coming home, the complainant asked the accused No.l to cut
the excess growth of hedge for which the accused No.1 became angry and
threatened that he would see the person who dared to cut the hedges and also
abused the complainant. The next day evening, the complainant's younger brother
- Mahadev (first deceased) came from Gokak and when the complainant and his
family members told about the incident that had taken place on the previous
day, Mahadev immediately expressed his desire to go to the accused No.1 and
confront him about this. Then immediately, he left the place followed by the
complainant (P.W.5), complainant's wife - Lalithawa Kuri (P.W.18),
complainant's elder brother - Basappa Sidnal (the second deceased),
complainant's sister - Suit Yallawwa Dundappa Shidnal (P.W.19), complainant's
brother - Siddappa Ajjappa Kuri (P.W.20), complainants sisters-in-law - Renuka
Kuri (P. W. 24) and Smt. Anasuya Sidnal (P.W.26). When Mahadev questioned the
accused No. 1 about his behaviour with the complainant the previous day, the
accused No. l became angry about the audacity of Mahadev in coming to his hotel
about that matter and to question him; and challenging Mahadev, he went inside
the hotel, brought a crow-bar and by that instrument gave a blow on the head of
Mahadev. In the meantime, the accused No.1's son - Vittal (accused No.2)
brought a stick and another son-Maruti (accused No.3) brought an iron rod
saying that these people would not be allowed to go, and started assaulting
them. The accused No-3 assaulted Basappa by means of an iron rod on account of
which Basappa started to bleed. The accused No.1 gave a blow on the
complainant's wife Lalithavva by means of the crow bar on account of which she
fell down and when he attempted to give a blow by means of that crow-bar on the
complainant, the complainant avoided it but the blow fell on his left hand and
he sustained injury. The accused No.2 attacked P.W.18 by means of a stick. In
the meantime, the people assembled and saved these persons. But, by that time
Mahadev and Basappa had sustained grievous injuries. The injured were taken to
Ramadurga in the jeep of Prakash (P.W.25). The doctor at Ramadurga examined
Mahadev and pronounced him dead. For further treatment, Basappa and Lalithavva
were taken to Belgaum hospital where Basappa died later. In the meantime, the
police had received information in Kattakol Police Station, which had
jurisdiction over the area and the. Sub-Inspector of Police went to Ramadurga
with a Police Constable and took the complaint, on the basis of which a case
was registered and investigation was taken up. The accused were not available.
They were traced on 9.2. 1995 and were arrested and were produced before the
learned Magistrate. They were remanded to judicial custody. After
investigation, the Police filed a charge sheet against the accused.
The accused pleaded
not guilty to the charges and claimed to be tried.
examined in all 30 witnesses out of whom PWs. 5,18,19,20 to 26 are eye
witnesses. The accused No.1 advanced a theory of self defence contending that
the injured persons and the deceased persons had come to his hotel armed with
deadly weapons challenging when he was alone in the hotel and challenging him
they attempted to assault him. He contended when he ducked to avoid a blow, it
fell on the head of the person, who was holding him and in consequence that
person sustained injuries and that in the meantime, he managed to snatch one of
the weapons held by the assailants and in self defence, a wide hit was given by
him to the assailants and thereafter he escaped from the blows. It was his
contention that he was not responsible for any injuries found on the deceased
and the injured.
trial court disbelieved the plea of right of private defence and held the
appellant guilty as aforestated.
appeal the High Court upheld the conviction discarding the stand of the
appellant that this was a case of right of private defence.
support of the appeal it was submitted that this is a case where the right of
private defence is clearly applicable, and prosecution version is not
believable. Learned counsel for the respondent-State on the other hand
supported the judgment.
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 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, 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 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 is 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
7 "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
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 probabilises 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)]. In this case, as the Courts below found
there was not even a single injury on the accused persons, while PW2 sustained
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 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 shows 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
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.
Thus, running to house, fetching a tabli and assaulting the deceased are by no
means a matter of course. These acts bear stamp of a design to kill and take
the case out of the purview of private defence. Similar view was expressed by
this Court in Biran Singh v. State of Bihar (AIR 1975 SC 87),in Sekar @Raja
Sekharan v. State represented by Inspector of Police, Tamil Nadu [2002 (7)
Supreme 124] and in Ananta Deb Singha Mahapatra & Ors. v. State of W.B.
[2007 (13) SCC 374].
is to be noted that there were a large number of eye witnesses who also had
suffered injuries. PWs. 5,8,19,22 and 26 are such witnesses whose version is
clear, cogent and credible and there is no reason to discard their version.
Trial court and the High Court have rightly relied upon their evidence.
Additionally when the factual scenario is tested on the touchstone of legal
principles relating to right of private defence are concerned it is clear that
the plea is without substance. Above being the position present appeal is sans
merit, deserves dismissal, which we direct.
(Dr. ARIJIT PASAYAT)