State of Madhya Pradesh
Vs. Ramesh [2004] Insc 697 (18 November 2004)
Arijit Pasayat & C.K.
Thakker Arijit Pasayat, J.
State of Madhya Pradesh calls in question legality of the judgment rendered
by the Division Bench of the Madhya Pradesh High Court. The respondent faced
trial for alleged commission of offences punishable under Sections 302 and 338
of the Indian Penal Code, 1860 (in short the 'IPC'). Originally his father Ram
Kirpal, brother Rakesh and mother Nonibai also faced trial with him. They were
acquitted by the trial Court, while respondent was convicted for causing the
homicidal death of one Rajendra (hereinafter referred to as the 'deceased') by
gun shot on 20.5.1986. He was sentenced to life imprisonment for the offence
relatable to Section 302 IPC. He was also convicted in terms of Section 338 IPC
for causing grievous injury to Krishna (PW-6) who was injured by the same
bullet which after passing through the body of deceased Rajendra struck Krishan
and caused grievous injury to him. For this offence he was sentenced to undergo
RI for one year and fine of Rs.1000/- with default stipulation.
Prosecution version in nutshell is as follows:
On 20.5.1986 deceased Rajendra and Kuldeep (PW 1) were returning after their
examination. They were passing in front of the house of Ram Kripal (acquitted
accused) who was a municipal counciler those days. Ram Kirpal knowing that
these boys were friendly with Dinesh (PW-2), who was a press reporter of that
area, advised them to abjure company of Dinesh. Finding them non-responsive Ram
Kirpal, his two sons Ramesh and Rakesh and his wife Nonibai started pelting
stones on deceased Rajendra and Kuldeep (PW 1). Thereafter, Ram Kirpal asked
his son Ramesh to get his gun from the house. Ram Kirpal asked Ramesh to shoot
these boys, Ramesh then brought out a 12 bore gun and fired a shot at deceased
Rajendra from a distance of about 5 paces. At that time Dinesh (PW 2) reached
there while the shot was fired. This shot struck Rajendra in the left iliac
crest passing through the stomach region and damaged various internal organs.
It emerged from the right side of the body and struck Krishna ( PW 6) who also
happened to reach by that time. The bullet struck him in the left arm and
passed through fleshy portion and then struck the back region and got embeded
on the spinal cord, ultimately resulting in paralysis. Rajendra died at the
spot.
The prosecution case based on the testimony of Kuldeep (PW-1), Krishna
(PW-6), Dinesh (PW-2), Sureshwar Pandey, ASI (PW-8), who also happened to be
present there and had witnessed the incident. Further reliance was placed on
the medical report of autopsy surgeon and medical opinion regarding injuries of
Krishna. Medical report showed that deceased Rajendra had been struck with the
gun shot which entered into left iliac crest and emerged in the right side and
injured some vital organs such as Kidney, Spleen and Liver. The FIR was lodged
by Kuldeep (PW-1) on the same day within 10 minutes after this incident.
The accused's case was that Rajendra had approached Ram Kirpal in his
capacity as Municipal Councillor to obtain his residential certificate. He had
gone with the other boy. Ram Kirpal knew that Rajendra was in fact resident of
Uttar Pradesh and not resident of Chhatarpur, so he declined. This resulted in
exchange of hot words.
Rajendra had been persuaded by Dinesh (PW 2) who was a press reporter and
whose writings were used to be against Ram Kirpal in respect of developments of
various areas of municipality. Dinesh (PW 2) had also tried to put his
influence on Ram Kirpal for issuing certificate to Rajendra but Ram Kirpal did
not oblige. He was attacked by these boys and he suffered 5 injuries. He was
medically examined next day after the incident and 5 injuries caused by blunt
object were found on his person. So his case was that since he was attacked by
these boys, he called for help from his sons. Ramesh brought out a gun and that
gave rise to the firing.
The story of the first attack on Ram Kirpal did not find favour with the
trial Court and the story of the prosecution was accepted, although presence of
Sureshwar Pandey was not accepted by the trial Court and his testimony was
found to be false. But the trial Court held that the firing was deliberate and,
therefore, the finding of guilt under Section 302 was returned regarding death
of Rajendra.
Co- accused persons were however acquitted.
Accused filed appeal before the High Court and contended that it was clearly
a case where right of self defence was available. Even if it is held that while
acting for protecting the private defence of his father he had exceeded limit,
Section 302 IPC would not be attracted.
It was pleaded that while Ram Kirpal and his family were at their home
deceased and Kuldip (PW-1) were returning after examination. In the ordinary
course of conduct Ram Kripal would not have advised them to keep away from PW
2.
There was no reason for him and his family members to start pelting stones.
If such incident would have happened, there certainly was possibility of
reaction from the side of the deceased and his friends that has not been
disclosed. The story of pelting stones has been disbelieved by the trial Court.
Five injuries which were there on the body were not explained by the
prosecution. On the other hand, the plea of defence is more acceptable. The
deceased was attacked and certainly he became violent and attacked
accused-respondent Ramesh and caused injuries and Ramesh emerged from his
house. Ramesh was acting in self defence of his father.
Prosecutions' stand was that it is clearly a case of deliberate killing and
there was no basis for inferring any right of self defence.
The trial Court accepted the plea of self defence and altered the conviction
to Section 304 Part I IPC and awarded custodial sentence of 12 years. Such
alteration is subject matter of challenge in this appeal.
In support of the appeal, learned counsel for the State submitted that the
approach of the High Court is clearly erroneous. The conclusions are based on
surmises, conjectures and guess work. Clear and cogent evidence has been
lightly brushed aside and acting on presumption and surmises and guess work, it
has been held that the accused was acting in self defence. The High Court was
not itself clear whether it is a case of grave and sudden provocation to be
covered by Exception I or exceeding of limit of right of self defence in terms
of Exception II of Section 300.
In response, learned counsel for the respondent submitted that the High
Court has analysed the evidence in detail and come to a definite finding that
the right of private defence was available to the accused though he had
exceeded the same. In view of the matter no interference is called for.
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 defence evidence." 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.
The 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. 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.
Sections 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 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.
In 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) SCC 354).
As 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.
The 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.
In 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." The
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.
We find that the High Court has acted on surmises and conjectures to
conclude certain aspects. Firstly, it has come to conclude that the boys
including the deceased attacked Ramesh "may be with fists, may be with
some blunt weapon". There was no evidence in this regard. It was further
held that there was no reason for Ram Kirpal and his family members to pelt
stones. The deceased and his friends attacked Ram Kirpal though weapon used by
them are not known. Reference was made to the injuries on Ram Kirpal. It was
further held that probably some heat was generated either because of the advise
of Ram Kirpal was not accepted or because request of the boys to issue
certificate was not accepted by him. Because of the heat generated between the
boys and Ram Kirpal, the boys started hitting Ram Kripal causing injuries. In
this condition "probably" he asked his sons to shoot the assailants
and Ramesh fired a gun shot resulting in fatal injury to deceased and grievous
injury to Krishna. It was further held that when there was some exchange of hot
words between the deceased and his friends, on one hand and Ram Kishan on the
other the boys started attacking on his father and this was grave and sudden
provocation to the sons. In the aforesaid background it was held that when Ram
Kirpal asked his sons to kill. Exception I to Section 300 would be attracted.
The conclusions are not based on evidence and are based on surmises,
conjectures and guess work. As aforesaid noted, it was first concluded that
right of private defence was exceeded. It was further held that the case is
covered by either Exception I or Exception II to Section 300, as injuries on
the accused not explained. The findings are vague, unclear and indefensible. As
noted above, for some conclusions the High Court acted without any evidence and
frequently used the expression 'Probably'. A new case which was not even
pleaded by the parties was introduced on its own by the High Court. Undue
importance was attached to some superficial injuries of very minor nature on
Ram Kirpal. It is trite that there are some minor or superficial injuries
suffered by the accused that shall not affect a credible and cogent prosecution
version even if the prosecution has not explained the injuries. The vaccilating
nature of the conclusions is apparent because the High Court was not very sure
as to whether Exception I or Exception II to Section 300 I.P.C. applied. They
operate in entirely different fields. One relates to grave and sudden
provocation and the other to exercise of right of private defence.
The High Court was not justified, therefore, to alter the conviction to
Section 304 Part I IPC. The trial Court had rightly convicted the accused in
terms of Section 302 IPC.
Accordingly the judgment of the High Court is set aside and that of the
trial Court is restored.
Appeal is allowed.
Back
