& Anr Vs. State of Maharashtra  Insc 527 (24 August 2006)
Sinha & Dalveer Bhandari S.B. Sinha, J :
Appellants herein are brothers. They were charged with commission of an offence
punishable under Section 302 read with Section 34 of the Indian Penal Code for
causing the death of one Devaji and for committing an offence punishable under
Section 324 read with Section 34 of the Indian Penal Code for causing hurt to
Mina Yenurkr and her brother Dilip Yenurkr.
deceased admittedly was the uncle of the Appellants. Injured Dilip and Mina are
his son and daughter. He had three other sons, viz., Jaywanta, Umakant and Navin
Nischal as also a daughter by the name of Hemlata. The incidence took place on
11.12.95 at about 7
a.m. Dilip was allegedly
going to a Pan Shop early in the morning. When he crossed some distance,
Appellant No. 2 allegedly came out with a stick and hurled some blows on him.
Mina (PW-1) seeing this is said to have raised hue and cry.
deceased Devaji came out thereafter and made endeavours to rescue him. At that
time Surendra Appellant No. 1 allegedly took out one ubhari (a big stick) from
a bullock cart and assaulted him. Mina went to police station and filed a
complaint which was marked as Ex. P-29. However, a First Information Report was
lodged on a complaint made by Navin Nischal (PW- 2).
Appellants contend that Devaji and Dilip had been nurturing deep resentment
against them and in particular against Appellant No. 1 who after his father's
death had been looking after the family properties. They were determined to
kill Appellant No. 1. Devaji and Dilip allegedly came armed and made attempts
to assault Appellant No. 1 who was milking his cows in the cattle shed. Dilip
entered into the cattle shed and hurled a blow on his abdomen. He warded off
the blows by taking them on his left hand and, thus, received injuries.
Thereafter in course of scuffle between them, Dilip fell down in the courtyard
and sustained an injury on his head. Devaji thereafter assaulted Appellant No.
1 with a stump of bullock cart on his right hand. He with a view to exercise
his right of private defence took out an ubhari from his bullock cart and
injured Devaji. Mina also intervened in the meantime and sustained an injury on
her left hand. Allegedly, Appellant No. 1 Surendra thereafter went to police
station and lodged a report pursuant whereto a First Information Report was
lodged against Dilip and others for commission of an offence under Section 324
read with Section 34 of the Indian Penal Code. All the injured persons were
also sent to the Hospital by the Investigating Officer. A chargesheet was also
filed under Section 324 of the Indian Penal Code against some of the
the learned Trial Judge the prosecution examined several witnesses out of whom PWs
1, 2 and 3 Mina, Navin and Dilip were daughter and sons of the deceased. PW-4
is said to be an independent witness.
learned Sessions Judge as also the High Court relying on or on the basis of the
evidence adduced by the prosecution, found the Appellants guilty of commission
of the offence charged against them and sentenced them to undergo rigorous
imprisonment for life.
Malhotra, learned counsel appearing on behalf of the Appellant submitted that
the learned Sessions Judge as also the High Court failed to consider the
evidences brought on record from the perspective of the defences raised by the
Appellants and, thus, could have been convicted only under Part II of Section
304 of the Indian Penal Code.
V.N. Raghupathy, learned counsel appearing on behalf of the State, on the other
hand, supported the impugned judgments submitting that the onus to prove valid
exercise of right of private defence was on the Appellants but they failed to
discharge the same.
PW-1 is one of the injured witnesses. According to her, she had gone to police
station and her statement was recorded. The same was marked before the learned
Sessions Judge as Ex. P-29. The report of Navin Nischal (PW-2) which was
considered as the First Information Report and on the basis whereof the
investigation started was marked as Ex. P-31. No explanation has been offered
by the prosecution as to why the report of Mina was not treated to be a First
Information Report. Mina does not appear to be wholly truthful as she in her
statement before the police did not allege that both the Appellants were armed
with sticks. In her statement before the police, she also did not state that Dilip
was taken to the house of a neighbour for taking water although in his
statement Dilip stated he had become unconscious. Mina had also not made any
statement that immediately after the occurrence, the Appellants had threatened
others not to intermeddle in the matter and if they do so they would face dire
consequences. PW-2 categorically stated that Mina had gone to police station
prior to him.
First Information Report, PW-2 categorically stated:
father and sister went there to act as a mediator, so my brother Dilip ran
away" He also stated:
is true that Mina was not present when the accused assaulted my father."
He admitted that there was a dispute as regards some land; possession whereof
was taken over by the Appellants.
is Dilip. Interestingly, the witness stated that after being assaulted, he felt
'somewhat like unconscious' and went to the house of neighbour and stayed
there. It may be placed on record that he categorically stated before the
learned Trial Judge:
had intention to kill accused Surendra." It is not in dispute that the applicants
obtained possession of some lands from them in execution of a decree.
suggestion was given to him that Appellant No. 1 had taken out ubhari from
bullock cart to save his life which he denied. In his cross- examination, he
myself were on inimical terms with the accused.
not ask any reason to my father about non- talking terms of the accused
inimical terms from my birth. I and my father are having dispute about the
agricultural land, with the accused." PW-4 is Kawardu. He deals in sale of
milk. Although, as noticed hereinbefore, PW-3 denied that Appellant No. 1 had
taken out an ubhari from his bullock cart but PW-4 categorically stated:
accused Surendra had taken Ubhari from the bullock cart which was parked in front
of his house" He, however, accepted that he was the Manger of Hindustan Nagrik
Sanstha Bhandara and Dilip had been working under him as a peon. He furthermore
admitted that he had good relation with Devaji for a long time.
be noted that in his statement before the police, he had not stated that
Appellant No. 1 assaulted the deceased with an ubhari.
found the dead body of Devaji lying in front of the house of the accused.
Dr. Vijay conducted the post mortem. He found the following ante-mortem
injuries on the person of the deceased:
wound 7" x 2", 1" depth on right partial region of head.
2" x 1" skin deep right partial region 1" posterior to injury
1" cm x 1 = cm. Triangular on right pinna of right ear opposite tragus.
2/2" x 1" x =" on mastoid.
2" x =" right side of forehead extending right laterally to occipital
Abrasion on back
6 x =" left side infra scapular region.
Abrasion on back
4" x =" left side 2" below injury No. 7." The injuries on
the person of PW-1 were as under:
1" x =" on the doraome of left palm.
elbow 1" x =" 3) Contusion on left shoulder 1" x ="." Dilip
is said to have suffered the following injuries:
2" x =" on forehead above left eye brow.
1 cm. x = cm. Above injury No. 1" PW-8 accepted that the injuries suffered
by PW-1 and PW-3 could be caused by fall on hard substance. They did not suffer
any fracture. He also accepted that injuries Nos. 6, 7 and 8 on the person of
the deceased being abrasions which were suffered by Devaji, could be caused due
Investigating Officer examined himself as PW-9. He admitted that he had sent
Appellant No. 1 to the Central Hospital, Bhandara because he had injuries on his person.
place of the incidence is not in dispute. The Appellants had taken possession
of the land from the deceased in execution of a decree. The deceased and Dilip,
therefore, must be nurturing grudge against them.
a large number of litigations were pending between the parties.
learned Trial Judge also in his judgment noticed that the deceased and his son
had intention to kill Appellant No. 1 and the Appellants suffered injuries.
Despite the admitted fact that a case under Section 324 of the Indian Penal
Code was registered against Dilip and his father, the Investigating Officer had
not brought any material on records as regards the injuries suffered by them.
The Appellants had called for the injury report but the same was not produced.
Investigating Officer even did not draw up a sketch map. He did not make any
investigation from the point of view of the defence. The investigation was,
thus, not fair.
case of this nature, in our opinion, a broad view of the entire matter was
required to be taken, viz.,
Appellant No. 1
was not armed and he at a later stage of quarrel took out an ubhari from a
He had raised a
contention even in his bail petition that he had exercised his right of private
not unmindful of the fact that in all circumstances injuries on the person of
the accused need not be explained but a different standard would be applied in
a case where a specific plea of right of private defence has been raised. It
may be true that in the event prosecution discharges its primary burden of
proof, the onus would shift on the accused but the same would not mean that the
burden can be discharged only by examining defence witnesses.
learned courts below committed a manifest error of law in opining that the
Appellants had not discharged the initial burden which is cast on them. Even
such a plea need not be specifically raised. The Courts may only see as to whether
the plea of exercise of private defence was probable in the facts and
circumstances of the case.
State of U.P. v. Ram Swarup and Another [(1974) 4
SCC 764], this Court stated the law, thus:
burden which rests on the prosecution to establish its case beyond a reasonable
doubt is neither neutralised nor shifted because the accused pleads the right
of private defence. The prosecution must discharge its initial traditional
burden to establish the complicity of the accused and not until it does so can
the question arise whether the accused has acted in self-defence. This
position, though often overlooked, would be easy to understand if it is
appreciated that the Civil Law Rule of pleadings does not govern the rights of
an accused in a criminal trial. Unlike in a civil case, it is open to a
criminal court to find in favour of an accused on a plea not taken up by him
and by so doing the Court does not invite the charge that it has made out a new
case for the accused. The accused may not plead that he acted in self-defence
and yet the Court may find from the evidence of the witnesses examined by the
prosecution and the circumstances of the case either that what would otherwise
be an offence is not one because the accused has acted within the strict confines
of his right of private defence or that the offence is mitigated because the
right of private defence has been exceeded. For a moment, therefore, we will
keep apart the plea of the accused and examine briefly by applying the
well-known standard of proof whether the prosecution, as held by the Sessions
Court, has proved its case." Yet again in Yogendra Morarji v. State of Gujarat [(1980) 2 SCC 218], this Court
coming to the facts of the instant case, the principles governing the burden of
proof where the accused sets up a plea of private defence, may also be seen.
Section 105, Evidence Act enacts an exception to the general rule whereby in a
criminal trial the burden of proving everything necessary to establish the
charge against the accused beyond reasonable doubt, rests on the prosecution.
to the section, the burden of proving the existence of circumstances bringing
the case within any of the General Exceptions in the Indian Penal Code; or
within any special exception or proviso contained in any other part of the Code
or in any other law, shall be on the accused person, and the Court shall
presume the absence of such circumstances. But this section does not neutralise
or shift the general burden that lies on the prosecution to prove beyond
reasonable doubt all the ingredients of the offence with which the accused
stands charged. Therefore, where the charge against the accused is one of
culpable homicide, the prosecution must prove beyond all manner of reasonable
doubt that the accused caused the death with the requisite knowledge or
intention described in Section 299 of the Penal Code. It is only after the
prosecution so discharges its initial traditional burden, establishing the
complicity of the accused, that the question whether or not the accused had
acted in the exercise of his right of private defence, arises." In Cherlopalli
Cheliminabi Saheb and Another v. State of A.P.
[(2003) 2 SCC 571], this Court stated the law, thus:
this case, as stated above, the prosecution has come out with a particular
narration of the incident in question according to which these appellants and
two others stabbed the deceased but the prosecution has recovered only one
weapon, therefore, it is difficult to appreciate the prosecution case how by
one single weapon all these four accused persons could have stabbed the
deceased. That apart, the prosecution in its version of the incident has not
explained how the accused persons suffered injuries and by whom. There is an
obligation on the part of the prosecution to explain the injuries suffered by
the accused. In the instant case, the accused also came to the hospital almost
at the same time as the deceased and the doctor examined them after examining
the deceased, therefore, these injuries on the accused persons must have been
caused in the same incident in which the deceased suffered injuries which later
became fatal. Hence, in the absence of any explanation from the prosecution as
to the injuries on the appellant, we are of the opinion that the prosecution
version of the incident becomes doubtful" The question was examined at
some details in Bishna Alias Bhiswadeb Mahato and Others v. State of W.B. [(2005) 12 SCC 657] wherein this Court opined:
defence can be used to ward off unlawful force, to prevent unlawful force, to
avoid unlawful detention and to escape from such detention. So far as defence
of land against the trespasser is concerned, a person is entitled to use
necessary and moderate force both for preventing the trespass or to eject the
trespasser. For the said purposes, the use of force must be the minimum
necessary or reasonably believed to be necessary.
reasonable defence would mean a proportionate defence. Ordinarily, a trespasser
would be first asked to leave and if the trespasser fights back, a reasonable
force can be used." In regard to the duty of the prosecution to explain
the injuries on the part of the accused, this Court observed:
105 of the Evidence Act casts the burden of proof on the accused who sets up
the plea of self-defence and in the absence of proof, it may not be possible
for the court to presume the correctness or otherwise of the said plea. No
positive evidence although is required to be adduced by the accused;
possible for him to prove the said fact by eliciting the necessary materials
from the witnesses examined by the prosecution. He can establish his plea also
from the attending circumstances, as may transpire from the evidence led by the
large number of cases, this Court, however, has laid down the law that a person
who is apprehending death or bodily injury cannot weigh in golden scales on the
spur of the 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 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. All circumstances are required to be viewed with pragmatism and
any hypertechnical approach should be avoided.
it simply, if a defence is made out, the accused is entitled to be acquitted
and if not he will be convicted of murder. But in case of use of excessive
force, he would be convicted under Section 304 IPC." The question again
came up for consideration in Nagarathinam & Ors. v. State, Rep. by
Inspector of Police [JT 2006 (4) SC 288] wherein this Court in an almost identical
genesis of the occurrence is, therefore, shrouded in mystery. This occurrence,
admittedly, took place, but who were thus initial aggressors, i.e., the
prosecution witnesses or the appellants, is difficult to say. The High Court
has found that the prosecution had not been able to prove the charge of
rioting. The appellants and others did not have any common object to cause
death of the accused of the prosecution witnesses. We have noticed hereinbefore
the nature of injuries on the person of the appellants. The first appellant
received two stab wounds and also an incised wound over the scalp at frontal
region. The appellant No.2 received deep cut wound and an incised wound over
the scalp left side parietal region. The appellant No.3 also received an
incised scalp wound over frontal parietal region. It is not denied and disputed
that they were in the hospital as indoor patients for a few days. We have
furthermore noticed hereinbefore that they were also arrested after a few days.
High Court although saw that the injuries suffered by the accused were on the
vital parts of their bodies but without discussing the evidences, brought on
record held that the same were not sustained by them while exercising their
right of self-defence. It is true that it is not for the prosecution to prove
injuries on the person of the accused, in each and every case irrespective of
the nature thereof, but in a case of this nature the same would require serious
consideration as a plea of right of exercise of self-defence was raised. It is
in that context that the apprehension of death or bodily injury in the mind of
the accused persons would have to be determined having regard to the number of
people assembled to take part in assaulting them, the manner in which they were
assaulted, the arms used as also the situs of injury received by them. It is
now well settled that a person apprehends death or bodily injury cannot be
weighed in golden scales on the spur of the moment and in the heat of
circumstances, the number of injuries required to disarm the assailants who
were armed with weapons." The defence of the Appellants, therefore, could
not have been wished away. In a case of this nature, it was necessary on the
part of the prosecution to explain the injuries on the part of the accused. The
investigation of the entire cases and particularly in regard to the fact that
there were cross cases, a fair investigation was expected. The possibility of
PW-3 and the deceased being the aggressors cannot be ruled out. It would bear
repetition to state that they had been bearing grudge against Appellant No. 1.
the occurrence took place in front of the house of the Appellants had not
properly been explained by the prosecution witnesses. Evidently, there was no
pre-meditation on the part of Appellant No. 1. He was not armed. He took out an
ubhari from his bullock cart at a later stage.
possibility of PW-3 and the deceased being aggressors must be judged from the
admission made by PW-3 that they intended to kill Appellant No. 1. As has been
noticed hereinbefore, the statements of the prosecution witnesses in regard to
the genesis of occurrence and the presence of the prosecution witnesses at
different stages are not uniform. It is, therefore, a case where it is likely
that sudden fight between the parties erupted which would attract Section 304
of the Indian Penal Code and not Section 302 thereof. It is also a case where
an inference can safely be drawn that the blows were initially not hurled on
the deceased by the Appellants.
did so at a later stage. But, Appellant No. 1 suffered minor injuries.
not been able to show that the situation was such that he could reasonably
apprehend his death. They have exceeded their right of private defence in using
more force upon the deceased than was necessary.
the question has been examined at some details in a decision of this Court in Pappu
v. State of Madhya
Pradesh [(2006) 7
SCALE 24] holding:
'sudden fight' implies mutual provocation and blows on each side. The homicide
committed is then clearly not traceable to unilateral provocation, nor in such
cases could the whole blame be placed on one side. For if it were so, the
Exception more appropriately applicable would be Exception 1. There is no previous
deliberation or determination to fight. A fight suddenly takes place, for which
both parties are more or less to be blamed. It may be that one of them starts
it, but if the other had not aggravated it by his own conduct it would not have
taken the serious turn it did.
is then mutual provocation and aggravation, and it is difficult to apportion
the share of blame which attaches to each fighter. The help of Exception 4 can
be invoked if death is caused
in a sudden
offender's having taken undue advantage or acted in a cruel or unusual manner;
the fight must
have been with the person killed. To bring a case within Exception 4 all the
ingredients mentioned in it must be found"
the reasons aforementioned, we are of the opinion that the conviction of the
Appellants under Section 302 read with Section 34 of the Indian Penal Code
cannot be sustained. They are held guilty for commission of an offence under
Part I, Section 304 of the Indian Penal Code. They are directed to suffer
rigorous imprisonment for a period of 10 years. The conviction and sentence
imposed on them under Section 324 read with Section 34 is, however, upheld. The
sentences, however, shall run concurrently. This appeal is, thus, allowed in
part and to the extent mentioned hereinbefore.