Deb Singha Mahapatra & Ors Vs. State of West Bengal  Insc 689 (6 June 2007)
Dr. ARIJIT PASAYAT & D.K. JAIN
(Arising out of S.L.P. (Crl.) No.1263 of 2007) Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of the
Calcutta High Court dismissing the appeal filed by the appellants questioning
their conviction for the offence punishable under Sections 304 Part II read
with Section 149 of the Indian Penal Code, 1860 (in short the 'IPC'). Appellants
1 to 4 before the High Court were sentenced to suffer RI for 8 years and to pay
a fine of Rs.1,000/- each with default stipulation. Appellants 1, 2 and 5
before the High Court were also convicted under Section 323 read with Section
149 and sentenced to undergo imprisonment for six months and to pay a fine of
Rs.200/- each with default stipulation. Appellants 1, 2 and 5 before the High
Court are appellants 1, 2 and 3 respectively in this appeal.
3. Background facts in a nutshell are as follows:
On 13.9.1990 at about 2:30 P.M. the appellants accompanied by 15 others as
named in the FIR started cutting paddy from the land of the informant Niranjan
Singa Mahapatra (P.W. 2) in plot no. 122/470 of mouza Dakshinbaid within P.S.
Khatra. Seeing this Madhusudan Singha Mahapatra (hereinafter referred to as
'deceased') reached there and raised protest, and over this the accused persons
assaulted on the head of the deceased with lathis and also cut the fingers of
hand of the deceased with sharp sickle. Hearing the alarm by the deceased, P.W.
2 and his mother Monorama Singha Mahapatra (P.W. 4) reached there, but the
accused persons also assaulted P.W. 2 and P.W. 4 and in their presence gave
further blows on the head of the deceased Madhusudan Singha Mahapatra with
sickles. Madhusudan Singha Mahapatra fell down on the land and thereafter, P.W.
2 with the help of the other villages brought his father and mother to the
police station. The police officer on duty told them to go to the Khatra
hospital and as instructed they came to the Khatra PHC. After primary treatment
the doctor of the said PHC sent all the injured persons to the Bankura Medical College
and Hospital where parents of P.W. 2 were admitted and P.W. 2 was discharged
after primary treatment. P.W. 2 sent the written complaint FIR (ext. 2) through
his brother in law Dwijapada Kar (P.W. 5) to the Khatra Police Station and on
the basis of such written complaint Khatra P.S Case no. 40 dated 13.9.90 under
sections 147/148/149/48/324/325/379 of IPC was started against the accused
persons. The injured Madhusudan Singha Mahapatra succumbed to the injuries on
14.9.90, and thereafter, Section 304 of IPC was added and after completing the
investigation Officer (in short I.O.) submitted charge sheet against the
accused persons under section 147/148/149/48/324/325/379 and 304 IPC. The trial
that followed ended in the conviction and sentence of the appellants as
5. Before the High Court the primary stand was that the FIR was manipulated
and ante dated and it was a tampered document. Reference was made to evidence
of PW-2 in this regard. It was also contended that the accused persons were
seriously prejudiced because case and counter case were not tried by the same
court. The plea of right of private defence was also raised.
The learned counsel for the State on the other hand submitted that the FIR
was not manipulated, and the right of private defence was also not available.
6. The High Court analysed the evidence elaborately and came to hold that
the trial court's conclusions were irreversible.
7. In support of the appeal learned counsel for the parties reiterated the
submissions before the High Court. Learned counsel for the appellant
additionally submitted that the sentence imposed by the trial Court and the
High Court are expressly harsh.
8. So far as the plea relating to FIR is concerned, it can be seen that the
High Court has referred to the evidence of PW-16 and PW-4 to conclude that
there was no substance in the plea relating to manipulation of the FIR. The
High Court noted as follows:
"The formal FIR (ext. 7) shows that the original written complaint/FIR
was received on 13.9.90 at 4.05 P.M. and the police officer made an endorsement
on the back of ext. 7 to the effect that the original written compliant was
attached herewith. There is endorsement of the same police officer on the
reverse page or the second page of the original FIR with his signature and date
13.9.90 which shows that he received the same on 13.9.90 at 4.05 P.M.
and started Khatra P.S. Case No.40 dated 13.9.90 and the said endorsement on
the original written complaint is ext. 2. The original written complaint was
written by P.W.2 in Bengali and in it the Bengali digits '14' was changed to
'13'. This overwriting concerning date in Bengali in the original complaint
cannot establish that FIR was ante- dated, ante-timed and manufactured."
9. Coming to the plea relating to right of private defence the High Court
noted that the Madhusan fell down in the Paddy field after receiving lathi blows
and PW-2 went to a safe place to save his life and there was none to attack the
appellants. In spite of this fact, the appellants went on assaulting the
deceased and in that process caused more harm to the deceased than was
necessary to exceed the right of private defence. Thus the appellants were
guilty for the death of Madhusudan.
10. 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 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 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."
11. 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.
12. 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 probabilities 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 defence.
13. 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 that there is that reasonable apprehension.
The right lasts so long as the reasonable apprehension of the danger to the
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.
14. 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. 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) and recently in Sekar @Raja Sekharan
v. State represented by Inspector of Police, Tamil Nadu (2002 (7) Supreme 124).
The High Court has, therefore, rightly rejected the plea relating to
exercise of right of private defence.
15. Coming to the question of sentence we find that 8 years sentence has
been awarded for the offence punishable under Section 304 Part
II. The incident is of the year 1990.
Considering this fact and the background in which the occurrence took place,
custodial sentence of 6 years would meet the ends of justice.
16. So far as appellant no.3 is concerned, the conviction is in terms of
Section 323 read with Section 149 and the sentence is 6 months. It appears from
the record that he has already suffered custody of nearly 5 months. Keeping
this in view the sentence is reduced to the period already undergone.
17. The appeal is allowed to the aforesaid extent.