Singh Vs. State of Punjab & ANR.  INSC 49 (15 January 2010)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 1057
of 2002 Darshan Singh .. Appellants Versus State of Punjab & Another ..
This appeal is directed against the judgment and order of the
Punjab & Haryana High Court in Criminal Appeal No.446- (Division Bench) of
1994 dated 6.8.2002.
Both Darshan Singh and Bakhtawar Singh were acquitted by the
Sessions Court, Ludhiana. The said judgment of acquittal was set aside by the
High Court of Punjab & Haryana at Chandigarh.
Darshan Singh and Bakhtawar Singh filed appeal against the said
judgment before this court. During the pendency of this appeal, Bakhtawar Singh
died and consequently the appeal filed by him abated.
Brief facts which are necessary to dispose of this appeal are
recapitulated as under:- The dispute is between very close and intimate family
members. Deceased Gurcharan Singh was the brother of Bakhtawar Singh and uncle
of Darshan Singh. He was the father of Gurdish Singh, PW7, the informant. The
agriculture fields of both brothers, Gurcharan Singh and Bakhtawar Singh were
situated adjoining to each other. According to the prosecution, on 15.7.1991 at
about 8 a.m. Gurdish Singh, PW7 and his father, Gurcharan Singh were irrigating
their aforesaid fields and were also mending its ridges and at that time Gurdev
Singh, PW8 and Ajit Singh were also present there. In the meantime, Darshan
Singh and Bakhtawar Singh came there from the side of their fields raising
lalkaras and abused the complainant party. Darshan Singh, accused was armed
with D.B.B.L. gun and his father Bakhtawar Singh was 3 carrying a Gandasa and
they were saying that they would teach a lesson to the complainant party for
cutting the ridges.
According to the further story of the prosecution, Bakhtawar Singh
gave a Gandasa blow causing injuries on the chest of Gurcharan Singh. Gurcharan
Singh was also having a Gandasa with him and in order to save himself he also
caused injury on the head of Bakhtawar Singh. Thereafter, Darshan Singh fired
two shots from his licensed gun which hit Gurcharan Singh in the chest and some
of the pellets hit Gurdish Singh PW7 on his left upper arm and Gurdev Singh,
PW8 on his left thigh. Gurcharan Singh fell down and died at the spot. Gurdish
Singh and others retraced their steps in order to save themselves. Both the
accused in order to save themselves ran towards their respective houses.
Gurdish Singh, PW7 left the dead body of Gurcharan Singh and proceeded to the
police station to lodge a report. Gurdev Singh PW8 also accompanied him. They
met Om Prakash, ASI at about 9 a.m. at Barnala crossing where Gurdish Singh PW7
gave his statement. It was then read over and explained to him who signed the
same admitting the contents thereof to be correct. Om Prakash, ASI made his
endorsement (Ex. N/1) 4 and forwarded the statement to the police station,
Rajkot and on the basis of which the case was registered against both the
Om Prakash, ASI accompanied Gurdish Singh and Gurdev Singh to the
place of occurrence. He prepared inquest report in respect of the dead body of
Gurcharan Singh and then sent the dead body for post-mortem examination through
Constable Milkha Singh and Head Constable Pargat Singh.
Prakash, ASI lifted blood stained earth from the place where dead body of
Gurcharan Singh was lying and took the same into possession after preparing the
recovery memo. One gandasa and an empty cartridge of 12 bore were found lying
near the dead body. The gandasa and the empty cartridge were also taken into
possession. The Investigating Officer prepared visual site plan of the place of
occurrence with marginal notes. Gurdish Singh and Gurdev Singh's injury
statements were also prepared and sent for medico legal examination.
Dr. Mukesh Gupta PW4 conducted post-mortem examination on the dead
body of Gurcharan Singh on 5 15.7.1991 at 4.30 p.m. On the same day at 5.50
p.m. Dr. Gupta also conducted medico legal examination of Gurdev Singh and
found one abrasion on his left thigh. Dr. Gupta found a superficial abrasion on
Gurdish Singh on his elbow.
Singh and Bakhtawar Singh were arrested on 28.7.1991. The factum of the
incident has not been denied by the accused and they claimed right of private
According to the prosecution, the motive of the crime was dispute
regarding partition of land between both brothers Bakhtawar Singh and Gurcharan
Singh. One year prior to the present incident, the village Panchayat had got
the dispute compromised by a written agreement. There was a common well
situated in the adjoining land. As a result of the compromise, the well along
with a small piece of land attached to it was given to Gurcharan Singh and the
land of common pathway leading to the well was given to the accused party.
compromise was not accepted by the accused party and they wanted repartition of
the land attached to the well. This grievance led to this unfortunate incident.
The prosecution examined 11 witnesses. Dr. Mukesh Gupta, PW4 who
conducted the post-mortem examination found the following injuries on the dead
body of Gurcharan Singh:- "1. There were 14 wounds in an area of 20 cm x
18 cm on left side of the chest above the nipple. One of the wounds which was
above the nipple was having inverted margins. A wad was recovered from this
wound. This wound was 1 cm x 1 cm. The 9 wounds which measured 0.75 cm x 0.75
cm which were on the chest and shoulder also had inverted margins. Out of these
wounds 6 were found to entering chest cavity and 6 pellets were recovered from
the chest cavity. The remaining 3 wounds were having everted margins. These
were near the axilla and each wound measured 1 cm x 1 cm. One of the 14 wounds
which measured 0.75 cm x 1.5 cm was having inverted margins. It was skin deep
and was on the shoulder, upper part of humerous and clavicle bones were found
to be fractured. 4th and 5th rib of the left side of the chest were also found
to be fractured.
were 7 wounds in an area of 20 cm x 8 cm on the upper part of the chest on its
right side above the nipple. Out of these wounds 3 wounds measuring 0.75 cm x 1
cm each was having inverted margins, these were skin deep. 2 wounds were having
everted margins having a dimension of 1 x 1 cm each near the axilla. A pellet
was recovered from near the axilla. The remaining 2 wounds were near the top of
right shoulder measuring 0.75 x 1.5 cm each with inverted margins. These were
incised wound 8 cm x 0.5 cm skin deep on the left side of chest 3 cm above the
nipple. It was horizontally placed."
Dr. Mukesh Gupta found following injury on the person of Gurdev
Singh:- "An abrasion measuring 1 cm x 0.5 cm on the front and inner side
of left thigh. It was a superficial abrasion reddish in colour, over the
junction of upper 1/3rd and lower 2/3rd of the thigh. There was damage to the
pajama corresponding to the injury."
According to the doctor, the injury was simple in nature and was
caused within 24 hours. Doctor also found injury on Gurdish Singh to be
superficial. The same reads as under:- "A very superficial abrasion 1 cm x
0.5 cm on the upper side of left upper arm 12 cm above the elbow.
reddish in colour."
It may be relevant to mention that Dr. M.S. Gill, PW5, who
conducted the medical examination of Bakhtawar Singh found the following
injuries on his person:- "1. An incised wound 7 cm x 0.5 cm on the
parietal region of the right side of head. It was placed anterior posteriorly.
The wound was bone deep and 4 cm above the right pinna. Clotted blood was
According to doctor, this injury was caused by sharp- edged
Both Gurdish Singh, PW7 and Gurdev Singh, PW8 are the eye-witnesses
who gave detailed description of the occurrence. After examining the
prosecution evidence, the following statements of Darshan Singh and Bakhtawar
Singh were recorded under section 313 Cr. P.C.. The relevant portion of the
statement of Darshan Singh reads as under:- "I am innocent. In fact the
complainant party had gone back from the agreement got effected by the
Panchayat one year prior to the occurrence. In accordance with the said
compromise we had ploughed the land which was earlier under common pathway. One
day prior to the occurrence we had irrigated that portion of the land. On the
day of occurrence when we went to the fields, Gurcharan Singh (deceased) along
with 3-4 outsiders came to our field and remarked that we would be taught a
lesson for irrigating the land. Immediately thereafter Gurcharan Singh gave a
gandasa blow hitting my father Bakhtawar Singh on the head as a result of which
he fell down. I felt that my father had been killed. Gurcharan Singh then
advanced towards me holding the gandasa. I apprehended that I too would be
killed and I then pulled the trigger of my gun. Gurcharan Singh fell to the
ground and his companions took to their heels. I then took Bakhtawar Singh in
injured condition to Govt. hospital, Sudhar. Police came to the hospital at
about 5 p.m. We were kept under guard and brought to the police station on the
next day after getting my father discharged. We have been falsely implicated in
Singh (accused) pleaded as under:- 9 "I am innocent. It was the
complainant party who had resiled from the compromise got effected by Panchayat
about a year before the occurrence. We had ploughed the land which had fallen
to our share and one day prior to the occurrence we had irrigated the same. On
the day of occurrence when we went to the fields Gurcharan Singh (deceased)
along with 3-4 outsiders came to our field and remarked that we would be taught
a lesson for irrigating the land. Immediately thereafter Gurcharan Singh gave a
gandasa blow on my head as a result of which I fell down. Gurcharan Singh then
advanced towards Darshan Singh holding his gandasa whereupon Darshan Singh
fired a shot from his gun. I was taken to Government hospital, Sudhar by
Darshan Singh. Police came there on the same day at about 5 p.m. and took us to
the police station after getting me discharged. I have been falsely involved in
According to the versions of the accused Darshan Singh and
Bakhtawar Singh, Gurcharan first gave Gandasa blow hitting Bakhtawar Singh on
the head and the injury caused on Bakhtawar Singh was an incised wound of 7 cm
x 0.5 cm. on the parietal region of the right side of head. The wound was bone
deep and 4 cm above the right pinna and clotted blood was present and after
receiving these injuries in order to save himself, Darshan Singh fired at
Gurcharan Singh and as a result of which he died. According to the accused, the
entire act is covered by the right of private defence. According to the
prosecution, Bakhtawar Singh gave first injury on the chest of 10 Gurcharan
Singh whereas according to the defence the first injury was given by Gurcharan
Singh to Bakhtawar Singh.
appellant Darshan Singh fired only after the serious incised wound by a Gandasa
was inflicted on his father Bakhtawar Singh and at that time in order to save
his life he fired 2 shots which hit the deceased Gurcharan Singh leading to his
The point for determination is the place where the unfortunate
incident had taken place. According to Bhupinder Singh Patwari, PW3, point `A'
in site plan Ex.PC denotes the place where the dead body of Gurcharan Singh was
said to be lying and this point is in Khasra No.10. He further testified that
accused Bakhtawar Singh was recorded in cultivating possession of Khasra No.10.
According to the finding of the trial court, it clearly shows that Bakhtawar
Singh was in possession of Khasra No.10. According to Bhupinder Singh Patwari,
Point `E' is in Khasra No.10 from where Darshan Singh had allegedly fired at
Gurcharan Singh. According to the site plan prepared by Bhupinder Singh
Patwari, Point `F' is the place where the dispute took place with Bakhtawar
to the Patwari, this point `F' is in Khasra No.10 at a 11 distance of 5 karms
which is equivalent to 27.5 feet from the aforesaid pathway and point `A' is at
a distance of 7 karms from point `F'. Thus, from this evidence it is evident
that the occurrence took place inside Khasra No.10 which was in possession of
Bakhtawar Singh accused. Gurcharan Singh covered a distance of about 7 karms
which is equivalent to 37.5 feet.
The trial court came to the conclusion that the presence of Gurdev
Singh and Gurdish Singh at the time of alleged occurrence is highly doubtful.
Dr. Mukesh Gupta also stated that injuries on the person of Gurdev Singh and
Gurdish Singh could be caused by friendly hands and can be self suffered. He
further stated in the cross examination that duration of the injuries was less
than 6 hours. As per the prosecution case, the injuries were allegedly received
by them at about 8 a.m. No pellet was recovered from the injuries of these
witnesses namely, Gurdev Singh and Gurdish Singh.
to the trial court, the possibility of these injuries on their person having
been fabricated at a later stage cannot be ruled out. The trial court also held
that there was no mention of the injuries received by Gurdish Singh and Gurdev
Singh in 12 the inquest report whereas this fact finds mention in the first
information report. According to the prosecution, Gurdish Singh suffered pellet
injury on the left upper arm whereas, Gurdev Singh was hit on his left thigh.
If it was so, there would have been mention of this fact in the inquest report
or the investigating officer must have prepared their injury statement, but
neither any such injury statement was prepared at the spot nor their
medical-examination was carried out. Om Prakash, ASI, in his cross-examination
has admitted that he came to know about the injuries of Gurdish Singh and
Gurdev Singh only when they gave their supplementary statements at the bus
stand. According to the findings of the trial court, their injury statement was
prepared at the spot and they were medically examined by Dr. Mukesh Gupta.
Thus, according to the trial court the injuries were fabricated with connivance
with the investigating officer just in order to make Gurdish Singh and Gurdev
Singh stamp witnesses.
The trial court after discussing the entire evidence came to the
conclusion that two counter versions of the case have been presented and, in the
view of the trial court, the defence 13 version is more probable and nearer to
the truth for the following reasons:
delay in lodging the FIR impells the court to scrutinize the evidence of
witnesses regarding the actual occurrence with greater care and caution.
crucial point to be decided in this case was that who was the aggressor or
which of the parties can have the motive to open the attack? The trial court
held that "if the accused were already cultivating the land as per
compromise, then it does not appeal to reason as to why they would feel
aggrieved. On the other hand there was strong motive for Gurcharan Singh to
assault the accused person as he has resiled from the compromise."
next crucial point according to the trial court was as to where the incident
took place? According to the trial court the incident had taken place in the
field of the accused.
According to the trial court, the presence of the prosecution witnesses Gurdev
Singh and 14 Gurdish Singh at the time of alleged occurrence is highly
doubtful. Dr. Mukesh Gupta stated that the injuries on Gurdev Singh and Gurdish
Singh could be caused by friendly hands and can be self suffered.
pellet was recovered from the injuries of the prosecution witnesses namely,
Gurdev Singh and Gurdish Singh. The possibility of the injuries on their
persons having been fabricated at a later stage cannot be ruled out.
court found that, in the instant case, it appeared that the inquest report was
prepared first and the FIR was prepared at some later stage because there was
no mention about the injuries of Gurdev Singh and Gurdish Singh in the inquest
report, whereas this fact is mentioned in the FIR. According to the prosecution
case, Gurdish Singh suffered a pellet injury on his left upper arm whereas,
Gurdev Singh was hit on his left thigh. This was so mentioned in the FIR. If it
was so, this fact would have been mentioned in the inquest report or the
Investigating Officer must have prepared their injury statement, but no such
injury statement was prepared at the spot nor their medical examination was got
15 In the
cross-examination, Om Prakash ASI had admitted that he came to know about the
injuries of Gurdish Singh and Gurdev Singh only when they gave their
supplementary statements at the bus stand.
finding of the trial court is that the injuries were fabricated with the
connivance of the Investigating Officer just in order to make Gurdish Singh and
Gurdev Singh stamp witnesses.
Gurdish Singh P.W.7 had admitted that his father Gurcharan Singh was face to
face when Bakhtawar Singh gave Gandasa blow from above to downward vertically
on the chest of Gurcharan Singh. However, Dr. Mukesh Gupta contradicted him and
stated that injury no.3 on the person of Gurcharan Singh was skin deep and was
horizontally placed and was possible by a fall on a sharp edged weapon.
it can safely be concluded that it was not Bakhtawar Singh who gave Gandasa
blow to Gurcharan Singh in the manner as suggested by the prosecution. It is
most likely that Gurcharan Singh suffered injury no. 3 by a fall on his own
Gandasa and this was the reason that the wound was only skin deep.
put forth by the prosecution that 16 Gurcharan Singh was cutting weeds of ridges
with Gandasa is not believable. Gurdish Singh stated that he was collecting the
not having any Kassi or Khurpa and it was not possible to cut weeds of ridges
trial court came to a clear conclusion that Bakhtawar Singh was injured at
point `F' as shown in the site plan at the hands of Gurcharan Singh (deceased).
Gurcharan Singh after causing that injury forwarded towards Darshan Singh armed
with Gandasa and at that point Darshan Singh had no option but to open fire and
Gurcharan Singh died of that firearm injury. The trial court came to the
definite conclusion that Darshan Singh fired a shot in his right of private
The trial court after marshalling the entire evidence came to the conclusion that
seeing from all angles, the probabilities of the case are much more in favour
of the defence than in favour of the prosecution. The possibility of the
injuries having been caused to Gurcharan Singh by Darshan Singh in exercise of
private defence cannot be ruled out. Thus, the prosecution has failed to prove
its case against 17 the accused person beyond any reasonable doubt and the
benefit has to be given to them.
We deem it appropriate to briefly discuss the principle of right
of private defence and how the courts have crystallized this principle in some
Relevant provisions dealing with the right of private defence are
sections 96 and 97 of the Indian Penal Code.
Things done in private defence. - Nothing is an offence which is done in the
exercise of the right of private defence.
of private defence of the body and of property. - Every person has a right
subject to the restrictions contained in Section 99, to defend-- First.- His
own body, and the body of any other person, against any offence affecting the
The property, whether moveable or immoveable, of himself or of any other
person, against any act which is an offence falling under the definition of
theft, robbery, mischief or criminal trespass, or which is an attempt to commit
theft, robbery, mischief or criminal trespass."
Section 100 of the Indian Penal Code is extracted as under:
When the right of private defence of the body extends to causing death. -- The
right of 18 private defence of the body extends, under the restrictions
mentioned in the last preceding section, to the voluntary causing of death or
of any other harm to the assailant, if the offence which occasions the exercise
of the right be of any of the descriptions hereinafter enumerated, namely: --
First. -- Such an assault as may reasonably cause the apprehension that death
will otherwise be the consequence of such assault;
-- Such an assault as may reasonably cause the apprehension that grievous hurt
will otherwise be the consequence of such assault;
-- An assault with the intention of committing rape;
-- An assault with the intention of gratifying unnatural lust;
-- An assault with the intention of kidnapping or abducting;
-- An assault with the intention of wrongfully confining a person, under
circumstances which may reasonably cause him to apprehend that he will be
unable to have recourse to the public authorities for his release."
Section 100 of the Indian Penal Code justifies the killing of an
assailant when apprehension of atrocious crime enumerated in several clauses of
the section is shown to exist.
clause of Section 100 applies to cases where there is reasonable apprehension
of death while second clause is attracted where a person has a genuine
apprehension that his 19 adversary is going to attack him and he reasonably
believes that the attack will result in a grievous hurt. In that event he can
go to the extent of causing the latter's death in the exercise of the right of
private defence even though the latter may not have inflicted any blow or
injury on him.
It is settled position of law that in order to justify the act of
causing death of the assailant, the accused has simply to satisfy the court
that he was faced with an assault which caused a reasonable apprehension of
death or grievous hurt.
question whether the apprehension was reasonable or not is a question of fact
depending upon the facts and circumstances of each case and no strait-jacket
formula can be prescribed in this regard. The weapon used, the manner and
nature of assault and other surrounding circumstances should be taken into
account while evaluating whether the apprehension was justified or not? SCOPE
AND FOUNDATION OF THE PRIVATE DEFENCE
The rule as to the right of private defence has been stated by
Russel on Crime (11th Edn., Vol.1, p.491) thus:
a man is justified in resisting by force anyone who manifestly intends and
endeavours by violence 20 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."
enacting sections 96 to 106 of the Indian Penal Code, excepting from its penal
provisions, certain classes of acts, done in good faith for the purpose of
repelling unlawful aggressions, the Legislature clearly intended to arouse and
encourage the manly spirit of self-defence amongst the citizens, when faced
with grave danger. The law does not require a law-abiding citizen to behave
like a coward when confronted with an imminent unlawful aggression. As
repeatedly observed by this court there is nothing more degrading to the human
spirit than to run away in face of danger. The right of private defence is thus
designed to serve a social purpose and deserves to be fostered within the
Hari Singh Gour in his celebrated book on Penal Law of India (11th
Edition 1998-99) aptly observed that self-help is the first rule of criminal
law. It still remains a rule, though in 21 process of time much attenuated by
considerations of necessity, humanity, and social order. According to Bentham,
in his book `Principles of Penal Laws' has observed "the right of defence
is absolutely necessary". It is based on the cardinal principle that it is
the duty of man to help himself.
Killing in defence of a person, according to the English law, will
amount to either justifiable or excusable homicide or chance medley, as the
latter is termed, according to the circumstances of the case.
But there is another form of homicide which is excusable in
self-defence. There are cases where the necessity for self- defence arises in a
sudden quarrel in which both parties engage, or on account of the initial
provocation given by the person who has to defend himself in the end against an
assault endangering life.
The Indian Penal Code defines homicide in self-defence as a form
of substantive right, and therefore, save and except the restrictions imposed
on the right of the Code itself, it seems that the special rule of English Law
as to the duty of 22 retreating will have no application to this country where
there is a real need for defending oneself against deadly assaults.
The right to protect one's own person and property against the
unlawful aggressions of others is a right inherent in man. The duty of
protecting the person and property of others is a duty which man owes to
society of which he is a member and the preservation of which is both his
interest and duty. It is, indeed, a duty which flows from human sympathy.
Bentham said: "It is a noble movement of the heart, that indignation which
kindles at the sight of the feeble injured by the strong. It is noble movement
which makes us forget our danger at the first cry of distress..... It concerns
the public safety that every honest man should consider himself as the natural
protector of every other." But such protection must not be extended beyond
the necessities of the case, otherwise it will encourage a spirit or
lawlessness and disorder. The right has, therefore, been restricted to offences
against the human body and those relating to aggression on property.
When there is real apprehension that the aggressor might cause
death or grievous hurt, in that event the right of private 23 defence of the
defender could even extend to causing of death.
reasonable apprehension is enough to put the right of self-defence into
operation, but it is also settled position of law that a right of self-defence
is only right to defend oneself and not to retaliate. It is not a right to take
Right of private defence of person and property is recognized in
all free, civilsed, democratic societies within certain reasonable limits.
Those limits are dictated by two considerations : (1) that the same right is
claimed by all other members of the society and (2) that it is the State which
generally undertakes the responsibility for the maintenance of law and order.
The citizens, as a general rule, are neither expected to run away for safety
when faced with grave and imminent danger to their person or property as a
result of unlawful aggression, nor are they expected, by use of force, to right
the wrong done to them or to punish the wrong doer of commission of offences.
A legal philosopher Michael Gorr in his article "Private
Defense" (published in the Journal "Law and Philosophy"
9, Number 3 / August 1990 at Page 241) observed as under:
pacifists aside, virtually everyone agrees that it is sometimes morally
permissible to engage in what Glanville Willams has termed "private
defence", i.e., to inflict serious (even lethal) harm upon another person
in order to protect oneself or some innocent third party from suffering the
The basic principle underlying the doctrine of the right of
private defence is that when an individual or his property is faced with a
danger and immediate aid from the State machinery is not readily available,
that individual is entitled to protect himself and his property. The right of
private defence is available only to one who is suddenly confronted with the
necessity of averting an impending danger not of self creation.
being so, the necessary corollary is that the violence which the citizen
defending himself or his property is entitled to use must not be unduly
disproportionate to the injury which is sought to be averted or which is
reasonably apprehended and should not exceed its legitimate purpose.
This court in number of cases have laid down that when a person is
exercising his right of private defence, it is not possible to weigh the force
with which the right is exercised.
principle is common to all civilized jurisprudence. In Robert B. Brown v.
United States of America (1921) 256 US 335, it is observed that a person in
fear of his life in not expected to modulate his defence step by step or tier
Holmes in the aforementioned case aptly observed "detached reflection
cannot be demanded in the presence of an uplifted knife".
According to Section 99 of the Indian Penal Code the injury which
is inflicted by the person exercising the right should commensurate with the
injury with which he is threatened. At the same time, it is difficult to expect
from a person exercising this right in good faith, to weigh "with golden
scales" what maximum amount of force is necessary to keep within the right
every reasonable allowance should be made for the bona fide defender. The
courts in one voice have said that it would be wholly unrealistic to expect of
a person under assault to modulate his defence step by step according to
The courts have always consistently held that the right of private
defence extends to the killing of the actual or potential assailant when there
is a reasonable and imminent 26 apprehension of the atrocious crimes enumerated
in the six clauses of section 100 of the IPC. According to the combined effect
of two clauses of section 100 IPC taking the life of the assailant would be
justified on the plea of private defence; if the assault causes reasonable
apprehension of death or grievous hurt to the person exercising the right. A
person who is in imminent and reasonable danger of losing his life or limb may
in the exercise of right of self-defence inflict any harm, even extending to
death on his assailant either when the assault is attempted or directly
threatened. When we see the principles of law in the light of facts of this
case where Darshan Singh in his statement under section 313 has categorically
stated that "Gurcharan Singh gave a gandasa blow hitting my father
Bakhtawar Singh on the head as a result of which he fell down. I felt that my
father had been killed. Gurcharan Singh then advanced towards me holding the
gandasa. I apprehended that I too would be killed and I then pulled the trigger
of my gun in self defence." Gurcharan Singh died of gun shot injury.
In the facts and circumstances of this case the appellant, Darshan
Singh had the serious apprehension of death or at 27 least the grievous hurt
when he exercised his right of private defence to save himself.
ENUMERATION OF IMPORTANT CASES:
The legal position which has been crystallized from a large number
of cases is that law does not require a citizen, however law-abiding he may be,
to behave like a rank coward on any occasion. This principle has been
enunciated in Mahandi v. Emperor [(1930) 31 Criminal Law Journal 654 (Lahore);
Alingal Kunhinayan & Another v. Emperor Indian Law Reports 28 Madras 454;
Ranganadham Perayya, In re (1957) 1 Andhra Weekly Reports 181.
The law clearly spells out that right of private defence is
available only when there is reasonable apprehension of receiving the injury.
The law makes it clear that it is necessary that the extent of right of private
defence is that the force used must bear a reasonable proportion of the injury
to be averted, that is the injury inflicted on the assailant must not be
greater than is necessary for the protection of the person assaulted. A person
in fear of his life is not expected to 28 modulate his defence step by step,
but at the same time it should not be totally disproportionate.
A Full Bench of the Orissa High Court in State of Orissa v.
Rabindranath Dalai & Another 1973 Crl LJ 1686 (Orissa) (FB) summarized the
legal position with respect to defence of person and property thus: "In a
civilized society the defence of person and property of every member thereof is
the responsibility of the State. Consequently, there is a duty cast on every
person faced with apprehension of imminent danger of his person or property to
seek the aid of the machinery provided by the State but if immediately such aid
is not available, he has the right of private defence.
In Laxman Sahu v. State of Orissa 1986 (1) Supp SCC 555 this court
observed that it is needless to point out in this connection that the right of
private defence is available only to one who is suddenly confronted with
immediate necessity of averting an impending danger not of his creation.
In Raghavan Achari v. State of Kerala 1993 Supp. (1) SCC 719 this
court observed that "No court expects the 29 citizens not to defend
themselves especially when they have already suffered grievous injuries".
In Jagtar Singh v. State of Punjab AIR 1993 SC 970 this court held
that "the accused has taken a specific plea of right of self-defence and
it is not necessary that he should prove it beyond all reasonable doubt. But if
the circumstances warrant that he had a reasonable apprehension that death or
grievous hurt was likely to be caused to him by the deceased or their
companions, then if he had acted in the right of self- defence, he would be
doing so lawfully."
In Puran Singh & Others v. The State of Punjab (1975) 4 SCC
518 this court observed that in the following circumstances right of private
defence can be exercised :- i. There is no sufficient time for recourse to the
public authorities ii. There must be a reasonable apprehension of death or
grievous hurt to the person or danger to the property concerned.
harm than necessary should not have been caused.
In Bhagwan Swaroop v. State of Madhya Pradesh (1992) 2 SCC 406
this court had held as under:- 30 "It is established on the record that
Ramswaroop was being given lathi blows by the complainant party and it was at
that time that gun-shot was fired by Bhagwan Swaroop to save his father from
further blows. A lathi is capable of causing a simple as well as a fatal
injury. Whether in fact the injuries actually caused were simple or grievous is
of no consequence. It is the scenario of a father being given lathi blows which
has to be kept in mind and we are of the view that in such a situation a son
could reasonably apprehend danger to the life of his father and his firing a
gun-shot at that point of time in defence of his father is justified."
The facts of this case are akin to the facts of the instant case.
In Kashmiri Lal & Others v. State of Punjab (1996) 10 SCC 471,
this court held that "a person who is unlawfully attacked has every right
to counteract and attack upon his assailant and cause such injury as may be
necessary to ward off the apprehended danger or threat."
In James Martin v. State of Kerala (2004) 2 SCC 203, this court
again reiterated the principle that 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
In Gotipulla Venkatasiva Subbrayanam & Others v. The State of
Andhra Pradesh & Another (1970) 1 SCC 235, this court held that "the
right to private defence is a very valuable right and it has been recognized in
all civilized and democratic societies within certain reasonable limits."
In Mahabir Choudhary v. State of Bihar (1996) 5 SCC 107 this court
held that "the High Court erred in holding that the appellants had no
right to private defence at any stage.
this court upheld the judgment of the sessions court holding that since the
appellants had right to private defence to protect their property, but in the
circumstances of the case, the appellants had exceeded right to private
defence. The court observed that right to private defence cannot be used to
kill the wrongdoer unless the person concerned has a reasonable cause to fear
that otherwise death or grievous hurt might ensue in which case that person
would have full measure of right to private defence including killing".
In Munshi Ram & Others v. Delhi Administration (1968) 2 SCR
455, this court observed that "it is well settled that even if the accused
does not plead self defence, it is open 32 to consider such a plea if the same
arises from the material on record. The burden of establishing that plea is on
the accused and that burden can be discharged by showing preponderance of
probabilities in favour of that plea on the basis of materials available on
In State of Madhya Pradesh v. Ramesh (2005) 9 SCC 705, this court
observed "every person has a right to defend his own body and the body of
another person against any offence, affecting the human body. The right of self
defence commences as soon as reasonable apprehension arises and it is
co-terminus with the duration of such apprehension. Again, it is defensive and
not retributive right and can be exercised only in those cases where there is
no time to have recourse to the protection of the public authorities."
In Triloki Nath & Others v. State of U.P. (2005) 13 SCC 323
the court observed as under:- "No decision relied upon by the Appellants
lays down a law in absolute terms that in all situations injuries on the
persons of the accused have to be explained. Each case depends upon the fact
situation obtaining therein."
In Vidhya Singh v. State of Madhya Pradesh (1971) 3 SCC 244, the
court observed that "the right of self-defence is a very valuable right,
serving a social purpose and should not be construed narrowly. 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 Jai Dev v. State of Punjab AIR 1963 SC 612 the court held as
under:- 34 "as soon as the cause for the reasonable apprehension has
disappeared and the threat has either been destroyed or has been put to rout,
there can be no occasion to exercise the right of private defence."
In order to find out 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.
In Buta Singh v. The State of Punjab (1991) 2 SCC 612, the court noted
that 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- 35 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 following principles emerge on scrutiny of the following
Self-preservation is the basic human instinct and is duly recognized by the
criminal jurisprudence of all civilized countries. All free, democratic and 36
civilized countries recognize the right of private defence within certain reasonable
right of private defence is available only to one who is suddenly confronted
with the necessity of averting an impending danger and not of self-creation.
mere reasonable apprehension is enough to put the right of self defence into
operation. In other words, it is not necessary that there should be an actual
commission of the offence in order to give rise to the right of private
defence. It is enough if the accused apprehended that such an offence is
contemplated and it is likely to be committed if the right of private defence
is not exercised.
right of private defence commences as soon as a reasonable apprehension arises
and it is co- terminus with the duration of such apprehension.
(v) It is
unrealistic to expect a person under assault to modulate his defence step by
step with any arithmetical exactitude.
private defence the force used by the accused ought not to be wholly
disproportionate or much greater than necessary for protection of the person or
is well settled that even if the accused does not plead self-defence, it is
open to consider such a plea if the same arises from the material on record.
The accused need not prove the existence of the right of private defence beyond
Indian Penal Code confers the right of private defence only when that unlawful
or wrongful act is an offence.
person who is in imminent and reasonable danger of losing his life or limb may
in exercise of self defence inflict any harm even extending to 38 death on his
assailant either when the assault is attempted or directly threatened.
The High Court in the impugned judgment has reversed the trial
court's judgment of acquittal and convicted the accused. Admittedly, Darshan
Singh fired from his 12-bore double barrel gun which had a number of pellets.
The High Court disbelieved the trial court's version that Gurdish Singh and
Gurdev Singh did not receive fire arm injuries because no pellet or pellets
were recovered from their bodies. In the impugned order, the High Court without
giving any cogent reasons has set aside the well considered judgment of the
In our view, when a shot was fired from a 12-bore gun and if no
pellet was recovered, then the trial court is not wrong in arriving at the
conclusion that the injuries were not caused by a fire arm. The High Court on
this point discarded the reasoning of the trial court without any sound basis.
The High Court gave the finding that "since it is a case of
dual version, one given by the complainant, who appears to be a truthful
witness when he has not concealed the role of his 39 father and explained the
injury of Bakhtawar Singh. On the contrary, the accused persons have come with
untenable defence." While arriving at this conclusion, the High Court in
the impugned judgment has not followed the consistent legal position as
crystallized by various judgments of this Court.
Court or the Appellate Court would not be justified in setting aside a judgment
of acquittal only on the ground that the version given by the complainant is
In a case of acquittal, if the trial court's view is a possible or
plausible view, then the Appellate Court or the High Court would not be justified
in interfering with it. It is the settled legal position that there is
presumption of innocence and that presumption is further fortified with the
acquittal of the accused by the trial court. The Appellate Court or the High
Court would not be justified in reversing the judgment of acquittal unless it
comes to a clear conclusion that the judgment of the trial court is utterly
perverse and, on the basis of the evidence on record, no other view is
plausible or possible than the one taken by the Appellate Court or the High
The High Court has unnecessarily laid stress on the point of
recovery of the gun at the instance of Darshan Singh.
accused has not denied the incident. The case of the defence is that their case
is covered by the right of private defence. Darshan Singh in his statement
under Section 313 of the Code of Criminal Procedure, 1908 has admitted that he
had fired from his licensed gun in his right of private defence.
Court without properly comprehending the entire evidence on record reversed the
well reasoned judgment of the trial court.
In the instant case after marshalling and scrutinizing the entire
prosecution evidence, we are clearly of the view that the trial court's view is
not only the possible or plausible view but it is based on the correct analysis
and evaluation of the entire evidence on record. Rationally speaking, no other
view is legally possible.
Consequently, this appeal is allowed and the impugned judgment of
the High Court is set aside and the judgment of acquittal of the trial court is
restored. The role attributed to the appellant is fully covered by his right of
the appellant is acquitted. The appellant was released on bail by this Court.
He need not surrender. The appeal is accordingly allowed and disposed of.
.....................................J. (Dalveer Bhandari)
.....................................J. (Asok Kumar Ganguly)