Dinesh Singh Vs.
State of U.P. [2008] INSC 1294 (4 August 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 544 OF 2001 Dinesh
Singh ...Appellant Versus State of U.P. ...Respondent
Dr. ARIJIT PASAYAT,
J.
1.
Challenge
in this appeal is to the judgment of the Allahabad High Court allowing the
Government Appeal. In the said appeal challenge was to the judgment of learned
Additional Sessions Judge, Karvi, directing acquittal of the respondents-the
accused 1 to 10 of the charged offences relatable to Sections 147,148,302, 325,
323 and 149 of the Indian Penal Code, 1860 (in short the `IPC'). The High Court
while upholding the acquittal of the rest of the accused persons found the
evidence cogent and credible so far as the present appellant is concerned and
directed conviction for offence punishable under Section 304 Part II IPC.
2.
Learned
counsel for the appellant submitted that the trial court had rightly noticed
that the appellant and the co- accused exercised right of private defence and,
therefore, the High Court could not have held the appellant guilty. It is also
submitted that when the evidence was found inadequate for rest of the accused
persons, appellant should not have been convicted.
3.
First
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."
4.
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.
5.
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.
6.
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, to 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.
7.
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).
8.
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.
9.
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.
10.
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."
11.
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 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.
12.
The
above position was highlighted in V. Subramani and Anr. v. State of Tamil Nadu
(2005 (10) SCC 358).
13.
So
far as the claim of right of private defence is concerned, it is to be noted
that the High Court analysed the evidence in great detail and observed that the
appellant's case stood on different footing. He is alleged to have fired upon,
Juguntha, who sustained fire-arm injury on his chest and died on the spot. No
person on the prosecution side is shown to be armed with any weapon. Therefore,
there could not be any reasonable apprehension of death or of grievous hurt at
their hands nor the case attract Section 103 IPC. The fact that appellant fired
from his gun on Jugntha, is established beyond doubt from the evidence on
record. P.W.1, Hari Mohan, who is wholly an independent witness, has cate-
gorically stated in his statement before the trial court that it was accused
Dinesh Singh who fired upon Juguntha, which struck on his chest and he fell
down and died. The incident occurred in broad-day light. Hari Mohan himself
sustained injuries and, therefore, his presence at the scene of occurrence
cannot be doubted. This witness had no animosity against the appellant nor had
any affinity with the complainant party. His statement is also corroborated by
medical evidence brought on record. Anurudh, P.W.2 is the other witness to depose
that it was the accused-respondent Dinesh Singh who fired from his gun upon
Juguntha. This fact is also mentioned in the first information report which was
lodged promptly. Dr. M.L. Verma, PW 6 who conducted autopsy on the dead body of
Juguntha found only one gutter shaped gunshot wound on the deceased and has
stated that injury sustained was the cause of death and the same was sufficient
to cause death in the ordinary course of nature. He also categorically stated
that the said injury could not be caused by a hand granade.
We have also examined
the post-mortem report and have no doubt in our mind that the said injury was a
gun shot injury in as much as the pallets entered on the right lateral side of
chest and then made exit from medial left side chest fracturing fourth, fifth
ribs with sternum into pieces and causing lacerations in both the lungs and
heart. The direction of wound was also from right to left. The evidence on
record thus leaves no room for doubt that Juguntha died due to a gunshot injury
and the same was caused by accused- appellant Dinesh Singh.
14.
So
far as the effect of acquittal on the self same evidence is concerned, it is
the duty of Court to separate grain from chaff. Falsity of particular material
witness or material particular would not ruin it from the beginning to end. The
maxim "falsus in uno falsus in omnibus" has no application in India
and the witnesses cannot be branded as liar. The maxim "falsus in uno
falsus in omnibus" has not received general acceptance nor has this maxim
come to occupy the status of rule of law. It is merely a rule of caution. All
that it amounts to, is that in such cases testimony may be disregarded, and not
that it must be disregarded. The doctrine merely involves the question of
weight of evidence which a Court may apply in a given set of circumstances, but
it is not what may be called `a mandatory rule of evidence'. (See Nisar Alli v.
The State of Uttar Pradesh (AIR 1957 SC 366).
15.
The
doctrine is a dangerous one especially in India for if a whole body of the
testimony were to be rejected, because witness was evidently speaking an
untruth in some aspect, it is to be feared that administration of criminal
justice would come to a dead-stop. Witnesses just cannot help in giving
embroidery to a story, however, true in the main. Therefore, it has to be
appraised in each case as to what extent the evidence is worthy of acceptance,
and merely because in some respects the Court considers the same to be
insufficient for placing reliance on the testimony of a witness, it does not
necessarily follow as a matter of law that it must be disregarded in all
respects as well. The evidence has to be shifted with care. The aforesaid
dictum is not a sound rule for the reason that one hardly comes across a
witness whose evidence does not contain a grain of untruth or at any rate
exaggeration, embroideries or embellishment. (See Sohrab s/o Beli Nayata and
Anr. v. The State of Madhya Pradesh (1972 (3) SCC 751) and Ugar Ahir and Ors.
v. The State of Bihar (AIR 1965 SC 277). An attempt has to be made to, as noted
above, in terms of felicitous metaphor, separate grain from the chaff, truth
from falsehood. Where it is not feasible to separate truth from falsehood,
because grain and chaff are inextricably mixed up, and in the process of
separation an absolutely new case has to be reconstructed by divorcing
essential details presented by the prosecution completely from the context and
the background against which they are made, the only available course to be
made is to discard the evidence in toto.
(See Zwinglee Ariel
v. State of Madhya Pradesh (AIR 1954 SC 15) and Balaka Singh and Ors. v. The
State of Punjab. (AIR 1975 SC 1962). As observed by this Court in State of
Rajasthan v. Smt. Kalki and Anr. (AIR 1981 SC 1390), normal discrepancies in
evidence are those which are due to normal errors of observation, normal errors
of memory due to lapse of time, due to mental disposition such as shock and
horror at the time of occurrence and those are always there however honest and
truthful a witness may be. Material discrepancies are those which are not
normal, and not expected of a normal person. Courts have to label the category
to which a discrepancy may be categorized. While normal discrepancies do not
corrode the credibility of a party's case, material discrepancies do so. These
aspects were highlighted recently in Krishna Mochi and Ors. v. State of Bihar
etc. (JT 2002 (4) SC 186), Gangadhar Behera and Ors. v. State of Orissa (2002
(7) Supreme 276) and Rizan and Anr. v. State of Chhattisgarh (2003 (2) SCC
661).
16.
The
High Court has also analysed in detail as to how the case of appellant stood on
a different footing and has directed his conviction, though in the case of co-accused,
the evidence was found to be inadequate. We find no infirmity in the
conclusions arrived at by the High Court to warrant interference. Appeal fails,
hence dismissed.
.........................................J.
(Dr. ARIJIT PASAYAT)
...........................................J
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