Sadhu Singh Vs. State
of Punjab  INSC 672 (31 March 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2009 (Arising
out of S.L.P. (Crl.) No.6234 of 2008) Sadhu Singh ..Appellant versus State of
Dr. ARIJIT PASAYAT,
in this appeal is to the judgment of a Division Bench of the Punjab and Haryana
High Court upholding the conviction of the appellant for offence punishable
under Section 302 of the Indian Penal Code, 1860 (in short the `IPC') and
Section 27 of the Arms Act, 1959 (in short `Arms Act'). Three persons faced
trial for commission of murder of Jagdev Singh (hereinafter referred to as the
`deceased'). Sadhu Singh, Wazir Singh and Harjinder Singh faced trial for
alleged commission of offences punishable under Sections 302, 323 read with
Section 34 IPC and Section 27 of the Arms Act. The trial Court held that the
appellant was guilty of offence punishable under Section 302 IPC while the
other two were guilty of offence punishable under Section 323 IPC.
Additionally, appellant was found guilty of offence punishable under Section 27
of the Arms Act.
version in a nutshell is as follows:
On November 12, 1996
Bachittar Singh (PW-3) along with his sons Sukhdev Singh (PW) and Jagdev Singh
(hereinafter referred to as `deceased') were returning to their village at about
9.00 p.m. on a tractor which was being driven by Bachittar Singh while his two
sons were sitting on it and when they were about 5-7 Karams short of the house
of accused Sadhu Singh they saw the three accused standing in Sadhu Singh's
doorway. At that time Sadhu Singh was armed with a 12 bore SBBL gun while Wazir
Singh and Harjinder Singh alias Pappa were empty handed.
Wazir singh and Pappa
walked upto the tractor and stopped it. Thereafter, Wazir Singh raised a
lalkara that Bachittar Singh and others should be taught a lesson for
cultivating the land coming in their father's share and thereupon Sadhu Singh
fired a shot at the deceased and Pappa Singh started throwing bricks. Bachittar
Singh and others raised alarm and the accused retreated to their house. When
Bachittar Singh and Sukhdev Singh came down from the tractor they saw that
Jagdev Singh had died. Bachittar Singh left Sukhdev Singh near the dead body
and drove the tractor to his house from where he collected Baljinder Singh
(brother-in-law of the deceased) and met S.I. Satwant Singh S.H.0., Police
Station, Saddar (P.W.6), near the canal bridge within Bir Behman and narrated
the occurrence to S.I. Satwant Singh who recorded his statement Ex. P. D. This
statement was sent through Constable Chhinder Pal to Police Station Saddar for
registration of the case after recording proceedings Ex. P D/2) by M.H. C.
The Investigator took
up investigation. The doctor found various injuries on the body of the
After completion of
investigation charge sheet was filed. As the accused persons pleaded innocence,
trial was held. In order to further its version the trial Court primarily
relied on the evidence of PWs 1, 3 and 4. It did not accept the plea of right
of private defence as set up by the accused persons. In appeal, the stand
before the trial Court was re-iterated but the High Court found that there was
no question of exercise of right of private defence.
counsel for the appellant submitted that the trial Court has relied primarily
on the statement recorded under Section 313 of Code of Criminal Procedure, 1973
(in short the `Code'). The factual scenario shows that the complainant was
returning after ploughing the land in front of the house of the accused but
correct genesis of the situation has not been brought on record. The deceased
was about to hit the accused with a spear.
The trial Court and
the High Court proceeded on the basis as if the accused had time to go into his
house and on that he picked up a gun. It was nobody's case that the accused
went inside and brought a gun. The trial Court makes out a third case. It was
pointed out that the claim that the accused persons came and attacked the
deceased and PWs is not established.
In fact the trial
Court and the High Court have not recorded any positive finding regarding the
deceased and the PWs travelling in a tractor as on bullet marks were found on
counsel for the respondent-State on the other hand supported the judgment of
the High Court.
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 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 rout, there can be no occasion to exercise the right of
above position was highlighted in Rizan and Another vs. State of Chhattisgarh,
through the Chief Secretary, Govt. of Chhattisgarh, Raipur, Chhatttisgarh (2003
(2) SCC 661), Sucha Singh and Anr. v. State of Punjab (2003 (7) SCC 643) and
Bihari Rai v. State of Bihar (SLP (Crl.) No.862 of 2007 disposed of on 26th
the factual scenario is examined it becomes crystal clear that even if it is
accepted for the sake of arguments that the accused persons were at some point
of time exercising the right of private defence it was exceeded. That being so,
the plea regarding exercise of right of private defence cannot be sustained.
However, the appropriate conviction would be under Section 304 Part I IPC. The
conviction is altered accordingly.
Custodial sentence of
10 years would meet the ends of justice.
appeal is allowed to the aforesaid extent.
(Dr. ARIJIT PASAYAT)