Genda Singh & Ors vs State Of U.P

Genda Singh and Ors. ...Appellants

Versus

State of U.P. ...Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

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

Bench of the Allahabad High Court upholding the conviction

of the appellants for offences punishable under Section 302

read with Section 34 and Section 323 read with Section 34 of the Indian Penal Code, 1860 (in short the `IPC'). The learned

Additional Sessions Judge, Bijnor had found the accused

appellants guilty and had sentenced each to undergo RI for

life for the first offence and six months' RI for the second

offence. The sentences were directed to run concurrently. One

Leela Singh who faced trial alongwith the appellants was given

the benefit of doubt and was acquitted of the charges.

3. Background facts in a nutshell are as follows:

The incident is alleged to have taken place on 17th June,

1980 at about 6.00 p.m. at Village Bilai, which is also 4 Kms.

at a distance from the Police Station Haldaur, District Bijnor.

The report of the incident was lodged at Police Station Haldaur

on that very day at 8.30 p.m. The allegations of the

prosecution as would appear from the written report (Exhibit

Ka-8) are that a day before the incident sometime in the

evening boundary of the fields of the complainant was

damaged by accused Genda Singh and Mahavir Singh and for

it some altercations had also taken place. On the fateful day

2 (17th June 1980) in the morning hours, the complainant

Kendra Pal Singh alongwith his father Virendra Singh and

uncle Hari Raj Singh went to plough their fields. They were

just repairing the boundary at that place where it was

damaged by accused Genda Singh and others. It was about

7.00 a.m. Genda Singh armed with Tabal, Mahavir Singh

armed with axe, Thamman Singh armed with Lathi and Leela

Singh armed with iron pipe came at that place and exhorted

that the boundary wall would not be disturbed from the place

where it was set up. Some quarrel had taken place on it and

they gave blows with their weapons to Hari Raj Singh and

Virendra Singh. On hearing the hue and cry made by the

complainant, Surendra Singh, Prakash Singh, Balbeer Singh,

Naubahar Singh and other persons turned up at the site and

rescued the complainant and other persons. Father of the

complainant Virendra Singh in unconscious state and Hari

Raj Singh in a precarious condition were brought to the Police

Station where report was lodged. The report was registered at

Crime No.130 of 1980 at the Police Station Haldaur for the

offences under Sections 323, 324 and 308 IPC and its entry

3 was also made in the G.D. (Exhibit Ka-12). Sub Inspector

Vipin Pal Singh and other Police Constables namely Anwar

Khan, Mahendra Singh and, Shaukat Khan were sent from the

Police Station to the hospital with necessary papers for

drawing inquest report vide exhibit ka-12 P.W. B.S.Rana S.I.,

(P.W.8) took up the investigation of the case and prepared the

inquest report. Dr. Gurcharan Singh (P.W.2) conducted the

autopsy at the dead body of Hari Raj Singh on that very day at

4.30 P.M. and prepared the report (Exhibit Ka-6). Virendra

Singh was brought to the Primary Health Centre at 8.00 a.m.

on 17th June, 1980 by Constable Tej Pal Singh. He died on the

same very day. It was opined by the doctor who conducted

the autopsy of Hari Raj Singh and Virendra Singh that their

deaths had taken place on account of shock and hemorrhage.

It was also opined that the ante mortem injuries sustained by

the victims might have been caused on that very day i.e. 17th

June, 1980.

Injuries of PW-5 Kendra Pal Singh were also medically

examined at Primary Health Centre, Haldaur on 18th June,

4 1980 at 9.15 a.m. (Exh. Ka-2) by PW-1 (Dr. Chaod Kumar

Singh).

Charge sheet was filed after investigation. Since accused

persons abjured their guilt, trial was held.

Placing reliance on the evidence of the witnesses, more

particularly, the injured witness the trial Court found the

accused persons guilty and convicted and sentenced as

aforenoted. The judgment of the trial Court was questioned

before the High Court in Criminal Appeal No. 2917 of 1980. As

noted above, the High Court dismissed the appeal.

4. Primary stand of learned counsel for the appellants was

that the High Court should have given the benefit available for

exercising right of private defence. It was submitted that the

evidence clearly established that the accused persons were

exercising their right of private defence.

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5. Learned counsel for the State on the other hand

supported the judgment of trial Court and the High Court.

6. 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

6 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

7 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

8 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.

7. 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

9 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.

8. Sections 102 and 105, IPC deal with commencement and

continuance of the right of private defence of body and

10 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.

9. 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

11 Sekharan v. State represented by Inspector of Police, T.N.

(2002 (8) SCC 354).

10. 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

12 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.

11. 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

13 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.

12. 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."

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13. 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 a 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.

14. The above position was highlighted in V. Subramani and

Anr. vs. State of Tamil Nadu (2005 (10) SCC 358).

15. Factual scenario as noted above clearly goes to show that

though the appellants claimed to be exercising the right of

private defence, it was exceeded. That being so, the protection

for exercising the right of private defence cannot be extended

15 to the appellants. But the appropriate conviction would be

under Section 304 Part I IPC and custodial sentence of 10

years in case of each appellant and fine imposed by the trial

Court would meet the ends of justice.

16. The appeal is allowed to the aforesaid extent.

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

.................................J. (P. SATHASIVAM)

New Delhi, July 9, 2008

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