Arun vs State Of Maharashtra

Arun ..Appellant

Versus

State of Maharashtra ..Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division Bench of the

Bombay High Court, Aurangabad Bench upholding the conviction of the

appellant for offence punishable under Section 302 of the Indian Penal

Code, 1860 (in short the `IPC') and sentence of imprisonment for life and a

fine of Rs.500/- with default stipulation. He was also convicted for offence

punishable under Section 324 IPC and sentenced to undergo rigorous imprisonment for a period of one year and a fine of Rs.250/- with default

stipulation. He was also convicted for offence punishable under Section

342 IPC and sentenced to undergo RI for three months and fine of Rs.100/-

with default stipulation. Additionally, he was charged for offence

punishable under Section 454 IPC and he was separately sentenced to suffer

RI for a period of one year and to pay a fine of Rs.250/- with default

stipulation. Two others co-accused persons were acquitted by the trial

Court of all charges. Both the appellant and the State filed appeals. The

State's appeal was directed against the acquittal of accused Nos.2 and 3 and

the same was dismissed at the admission stage.

3. Background facts giving rise to the trial as projected by the

prosecution are as follows:

Appellant and the deceased Sampatrao Gopal Khandekar were real

brothers. They had two other brothers by name Haribhau and Indakar. The

deceased Sampatrao was an educated person and was a professor at Balbhim

College in Beed. He was also managing an educational trust by name "Bade

Baba Shikshan Sanstha" at village Lahuri, Taluka Kaij, in district Beed.

Deceased and his brothers were separate in residence and there was a

2 partition effected between the brothers. Deceased Sampatrao was in

possession of his share of the ancestral lands and also had some self

acquired land at village Kolhewadi. As regards the educational trust

mentioned herein above, deceased Sampatrao was a founder member and

the Secretary. The family of Sampatrao was residing at Beed since

Sampatrao was serving as a professor in the town. Sampatrao used to get his

lands, in village Kolhewadi, cultivated with the help of labourers. His two

brothers i.e. the present appellant and Indakar (A-3) who were residents of

village Kolhewadi, had a dispute with the deceased Sampatrao as the

partition and its terms were not acceptable to them. Sampatrao and wife

Mangalabai had filed Regular Suit No.285 of 1996 in the Court of the Civil

Judge, Junior Division at Kaij for a declaration of title and injunction in

respect of five lands which were the suit property in that suit. The suit was

filed against two brothers i.e. the present appellant and A-3 Indakar as well

as some other members of their family. In the suit, the deceased and his wife

filed an application for grant of interim injunction, on 31st October 1996,

and the interim injunction application was allowed by the Civil Judge,

Junior Division, Kaij 4th November, 1996. Even after the grant of injunction,

the disputes remained, because the cotton crops were allegedly stolen by

accused No.1 Arun, acquitted accused No.3 Indakar and their family

3 members and in this regard a police complaint was filed by PW-13

Mangalabai, wife of deceased against the present appellant and A-3 and

their family members. She had prayed for strict police action against the

persons named in the complaint. All these facts indicate that the relations

between family of deceased Sampatrao and the families of his two real

brothers were strained and inimical.

The incident in question took place on 22nd November 1996. Prior to

incident, PW-11 Bhairu Anna Khose had been engaged by deceased

Sampatrao to work in his fields for period of three months in lieu of

payment of Rs.5,000/--. PW-11 Bhairu Khose had executed a Naukarnama

to this effect. He had agreed to work on the field of Sampatrao on 21st

December, 1996 and Sampatrao had asked him to meet him at village

Neknoor. Accordingly, they had met at Neknoor and from there had gone to

village Kolhewadi. On 22nd December, 1996, in the morning, deceased

Sampatrao took PW-11 Bhairu to his field. Adjoining to the field of

deceased Sampatrao, was the field of accused No.2. This field had an

electric motor and a pipeline fitted therein. At the spot, there was some

discussion between deceased Sampatrao and accused No.2 pertaining to the

supply of water to his field and to the field of accused No.1. Accused No.3

4 Indakar was also present at the spot, at that time. After this incident, the

deceased Sampatrao and PW-11 Bhairu came walking through the fields to

Shri Bade Baba Vidyalaya Mandir i.e. the school situated at village Lahuri.

They reached the Lahuri school at about 11.45 a.m. got the office room

opened through a Peon and were sitting in the office. At that time, accused

Nos.1 and 3 came running towards the school. A-1 Arun, who was also

working as a peon in the said school, latched the door of the office room

from outside and from the window he told PW-11 Bhairu that if he wanted

to save himself, he should come out. Sampatrao told his brother Arun that

Bhairu was his servant and that he would not leave. Sampatrao then locked

the door of the office from inside, shutting out accused No.1 Arun. Accused

No.1 Arun then climbed on to the roof of the office, which was a tin shed.

He bent a sheet of tin on the roof of the said office and from the opening so

created, he jumped into the office room. After jumping into the office room

he took out chilly powder from his right pocket and threw it into the eyes of

deceased Sampatrao. He then picked up an iron hammer and with this iron

hammer as well as a brick which had been stored in the room along with

other bricks kept for construction purposes, he hit the deceased Sampatrao

pressed his neck and inflicted eight blows on the head of the deceased. PW-

11 Bhairu was requesting accused No.1 Arun not to beat Sampatrao. At that

5 time, accused No.2 informed Bhairu from the window that he should not

interfere in the quarrel between the brothers. Accused No.2 caught hold of

the hands of PW-11 Bhairu near the window. Accused No.1 was also

carrying a wire on his waist and he used this wire also to beat Sampatrao.

Accused No.1 threw a brick which struck the forehead of Bhairu and also

beat Bhairu with the wire. Bhairu fell down and pretended to be dead.

Accused No.1 Arun, however, asked Bhairu to shift the table to the place in

the room where the tin sheet of the roof had been bent. He made Bhairu

keep a chair on the table and both, he and Bhairu got out of that room

through the damaged tin roof. The accused Nos.1 to 3, thereafter, left the

place and went together to the side of Lahuri village. There were some other

persons who went behind them. This entire incident was over by about 1.00

p.m. PW-11 Bhairu then went in a jeep to Police Station, Kaij. He narrated

the entire incident to the police and the police recorded his FIR on the same

day.

Sudarshan Mundhe, API (PW-17) who was then attached to the Kaij

Police Station, registered the crime under CR. No.257 of 1996, for offences

punishable under Sections 302, 342 read with Section 34 IPC. He found

that the clothes of the complainant were blood stained. He first seized the

6 clothes of the complainant under Panchnama (Exhibit-31). Since the

complainant was injured the investigating officer referred him for medical

treatment to the Government Hospital at Kaij. PW-17 API Sudarshan then

summoned a photographer and together with the photographer, he went to

the spot of the incident. He found the room of the office to be locked. The

police managed to open the lock of the office but even after opening the

lock and unlatching the door they found that they could not enter the office

because it was latched from inside. One police constable was then made to

climb to the roof and he entered the office from the opening in the roof and

unlatched the office door from inside. The photographer then entered and

took several photographs of the dead body of deceased and all the other

articles found inside the room. It was found that a chair had been kept on a

table under the spot and the tin roof had been bent and the photograph of

this was also taken. After photographing the room, the investigating officer

prepared the panchnama and seized several articles which were found in the

room. On the same day, the investigating officer arrested accused No.1

Arun and seized his bloodstained clothes under Panchnama. The arrest cum-

seizure panchnama was produced at the trial and marked Exhibit-32. The

investigating officer referred accused No.1 Arun for medical examination as

he found some injuries on his person. The investigating officer then

7 collected the medical certificates of the complainant and the present

appellant. As per the medical certificates, the injuries that were found on the

person of the complainant, (PW-11) Bhairu and A-1 were simple injuries

caused by a hard and blunt substance.

After completion of investigation, charge sheet was filed. As the

accused persons pleaded innocence trial was held and 19 witnesses were

examined to further the prosecution version. PWs 8 and 11 were stated to

be eye witnesses to the occurrence. They were two students who were

staying in the hostel of the school. The trial Court found the evidence to be

cogent, credible and recorded the conviction so far as the present appellant

is concerned. In appeal, it was stated that the appellant had gone unarmed

and alone to the school to persuade the deceased to put an end to the dispute

between them. When the appellant made his request to the deceased, he

abused him in filthy language and made obscene suggestion. He also started

pushing the appellant outside the room. When he saw that the appellant was

not going out of the room, the deceased picked up a hammer which was

lying in the room and gave blows on the head of the appellant who tried to

save himself. The deceased gave two more blows on the head and when the

appellant apprehended that he was likely to be killed he gave some more

blows. Appellant tried to save himself and when he was trying to save

himself and when he was in a fit of uncontrollable anger, in that process the

8 deceased and the appellant might have been injured. It is also stated that the

stand regarding throwing of chilly powder was false and the chilly powder

was subsequently planted at the scene of the offence. The State's stand was

that in view of accepted position regarding the presence of the accused and

the role described by PWs 8, 10 and 11 there is no scope for interference

with the well reasoned judgment of the trial Court. The High Court

accepted the stand and dismissed the appeal.

4. In support of the appeal, learned counsel for the appellant submitted

that there was an earlier FIR which was suppressed and after deliberation

report was lodged which was treated as a FIR. It was the deceased who was

the aggressor and the appellant was exercising his right of private defence.

According to him, the deceased gave four blows on his head and, therefore,

the judgment of the High Court is clearly unsustainable.

11. In response, learned counsel for the respondent-State submitted that

the FIR was promptly lodged. The injuries stated to have been sustained by

the accused are simple in nature. The evidence of PWs 8, 10 and 11 is clear,

cogent and credible and, therefore, there is no scope for any interference.

9

12. Only question which needs to be considered, is the alleged exercise

of right of private defence. Section 96, IPC provides that nothing is an

offence which is done in the exercise of the right of private defence. The

Section does not define the expression `right of private defence'. It merely

indicates that nothing is an offence which is done in the exercise of such

right. Whether in a particular set of circumstances, a person legitimately

acted in the exercise of the right of private defence is a question of fact to

be determined on the facts and circumstances of each case. No test in the

abstract for determining such a question can be laid down. In determining

this question of fact, the Court must consider all the surrounding

circumstances. It is not necessary for the accused to plead in so many

words that he acted in self-defence. If the circumstances show that the right

of private defence was legitimately exercised, it is open to the Court to

consider such a plea. In a given case the Court can consider it even if the

accused has not taken it, if the same is available to be considered from the

material on record. Under Section 105 of the Indian Evidence Act, 1872 (in

short `the Evidence Act'), the burden of proof is on the accused, who sets

up the plea of self-defence, and, in the absence of proof, it is not possible

for the Court to presume the truth of the plea of self-defence. The Court

shall presume the absence of such circumstances. It is for the accused to

10 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

11 death if there is reasonable apprehension that death or grievous hurt would

be the consequence of the assault. The oft quoted observation of this Court

in Salim Zia v. State of U.P. (AIR 1979 SC 391), runs as follows:

"It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence."

The accused need not prove the existence of the right of private defence

beyond reasonable doubt. It is enough for him to show as in a civil case

that the preponderance of probabilities is in favour of his plea.

13. 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

12 that the injuries so caused on the accused probabilise the version of the

right of private defence. Non-explanation of the injuries sustained by the

accused at about the time of occurrence or in the course of altercation is a

very important circumstance. But mere non-explanation of the injuries by

the prosecution may not affect the prosecution case in all cases. This

principle applies to cases where the injuries sustained by the accused are

minor and superficial or where the evidence is so clear and cogent, so

independent and disinterested, so probable, consistent and credit-worthy,

that it far outweighs the effect of the omission on the part of the prosecution

to explain the injuries. [See Lakshmi Singh v. State of Bihar (AIR 1976 SC

2263)]. A plea of right of private defence cannot be based on surmises and

speculation. While considering whether the right of private defence is

available to an accused, it is not relevant whether he may have a chance to

inflict severe and mortal injury on the aggressor. In order to find whether

the right of private defence is available to an accused, the entire incident

must be examined with care and viewed in its proper setting. Section 97

deals with the subject matter of right of private defence. The plea of right

comprises the body or property (i) of the person exercising the right; or (ii)

of any other person; and the right may be exercised in the case of any

offence against the body, and in the case of offences of theft, robbery,

13 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.

14. 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

14 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.

15. 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).

16. 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

15 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.

17. 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

16 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.

18. 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."

19. The right of private defence is essentially a defensive right

circumscribed by the governing statute i.e. the IPC, available only when the

17 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 defense, 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.

20. The above position was highlighted in James Martin v. State of

Kerala (2004 (2) SCC 203).

21. When the factual scenario is examined in the background of the

principles set out above, the inevitable conclusion is that the appeal is

without merit, deserves dismissal which we direct.

....................................

....J. (Dr. ARIJIT PASAYAT)

........................................J.

18 (ASOK KUMAR GANGULY) New Delhi, March 16, 2009

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