Dinesh Singh vs State Of U.P

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

3 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

4 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

5 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

6 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

7 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

8 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

9 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

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

11 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

12 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

13 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

14 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

15 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

16 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)

17 ...........................................J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, August 4, 2008

18