Hanumantappa Bhimappa Dalavai And Anr vs State Of Karnataka

Hanumantappa Bhimappa ..Appellants Dalavai & Anr.

versus

State of Karnataka ..Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

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

Karnataka High Court upholding the convictions of the appellants for

offence punishable under Section 302 of the Indian Penal Code, 1860 (in

short the `IPC'). The appellant No.1 was additionally convicted for offence

punishable under Section 326 IPC.

2. Prosecution version in a nutshell are as follows:

The accused nos.1 to 3 - the deceased and injured belonged to

Salahalli Village. There is a tea shop of the accused No.1 situated outside

the village, by the side of the compound of which a public road is situated,

some jail hedges have grown in the said land of accused No.1 by the other

side of the road, which have over grown obstructing to some extent the

public path. With regard to the inconvenience caused to the passers-by and

the persons taking vehicles like tractor, the complainant - Irappa Aijappa

Kuri (P.W.5) often complained to the accused No. l to cut the excess

hedges, to which the accused No.1 paid no heed. On 1.2.1995, while coming

home, the complainant asked the accused No.l to cut the excess growth of

hedge for which the accused No.1 became angry and threatened that he

would see the person who dared to cut the hedges and also abused the

complainant. The next day evening, the complainant's younger brother -

Mahadev (first deceased) came from Gokak and when the complainant and

his family members told about the incident that had taken place on the

previous day, Mahadev immediately expressed his desire to go to the

accused No.1 and confront him about this. Then immediately, he left the

2 place followed by the complainant (P.W.5), complainant's wife - Lalithawa

Kuri (P.W.18), complainant's elder brother - Basappa Sidnal (the second

deceased), complainant's sister - Suit Yallawwa Dundappa Shidnal

(P.W.19), complainant's brother - Siddappa Ajjappa Kuri (P.W.20),

complainants sisters-in-law - Renuka Kuri (P. W. 24) and Smt. Anasuya

Sidnal (P.W.26). When Mahadev questioned the accused No. 1 about his

behaviour with the complainant the previous day, the accused No. l became

angry about the audacity of Mahadev in coming to his hotel about that

matter and to question him; and challenging Mahadev, he went inside the

hotel, brought a crow-bar and by that instrument gave a blow on the head of

Mahadev. In the meantime, the accused No.1's son - Vittal (accused No.2)

brought a stick and another son-Maruti (accused No.3) brought an iron rod

saying that these people would not be allowed to go, and started assaulting

them. The accused No-3 assaulted Basappa by means of an iron rod on

account of which Basappa started to bleed. The accused No.1 gave a blow

on the complainant's wife Lalithavva by means of the crow bar on account

of which she fell down and when he attempted to give a blow by means of

that crow-bar on the complainant, the complainant avoided it but the blow

fell on his left hand and he sustained injury. The accused No.2 attacked

P.W.18 by means of a stick. In the meantime, the people assembled and

3 saved these persons. But, by that time Mahadev and Basappa had sustained

grievous injuries. The injured were taken to Ramadurga in the jeep of

Prakash (P.W.25). The doctor at Ramadurga examined Mahadev and

pronounced him dead. For further treatment, Basappa and Lalithavva were

taken to Belgaum hospital where Basappa died later. In the meantime, the

police had received information in Kattakol Police Station, which had

jurisdiction over the area and the. Sub-Inspector of Police went to

Ramadurga with a Police Constable and took the complaint, on the basis of

which a case was registered and investigation was taken up. The accused

were not available. They were traced on 9.2. 1995 and were arrested and

were produced before the learned Magistrate. They were remanded to

judicial custody. After investigation, the Police filed a charge sheet against

the accused.

The accused pleaded not guilty to the charges and claimed to be tried.

The prosecution examined in all 30 witnesses out of whom PWs. 5,18,19,20

to 26 are eye witnesses. The accused No.1 advanced a theory of self

defence contending that the injured persons and the deceased persons had

come to his hotel armed with deadly weapons challenging when he was

alone in the hotel and challenging him they attempted to assault him. He 4 contended when he ducked to avoid a blow, it fell on the head of the person,

who was holding him and in consequence that person sustained injuries and

that in the meantime, he managed to snatch one of the weapons held by the

assailants and in self defence, a wide hit was given by him to the assailants

and thereafter he escaped from the blows. It was his contention that he was

not responsible for any injuries found on the deceased and the injured.

4. The trial court disbelieved the plea of right of private defence and

held the appellant guilty as aforestated.

5. In appeal the High Court upheld the conviction discarding the stand

of the appellant that this was a case of right of private defence.

6. In support of the appeal it was submitted that this is a case where the

right of private defence is clearly applicable, and prosecution version is not

believable. Learned counsel for the respondent-State on the other hand

supported the judgment.

7. 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 5 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 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 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, 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 required to call evidence; he can establish his plea by reference to

6 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 is 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: 7

"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."

8. 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.

9. 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

that the injuries so caused on the accused probabilises 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

8 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)]. In this case, as the Courts below found there was not even a single

injury on the accused persons, while PW2 sustained large number of

injuries and was hospitalized for more than a month. 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

9 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 shows 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.

10. 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, or commit the offence, although the

offence may not have been committed but not until that 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

10 or has been put to route, there can be no occasion to exercise the right of

private defence.

11. 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. Thus, running to house, fetching a tabli and

assaulting the deceased are by no means a matter of course. These acts bear

stamp of a design to kill and take the case out of the purview of private

defence. Similar view was expressed by this Court in Biran Singh v. State

of Bihar (AIR 1975 SC 87),in Sekar @Raja Sekharan v. State represented

by Inspector of Police, Tamil Nadu [2002 (7) Supreme 124] and in Ananta

Deb Singha Mahapatra & Ors. v. State of W.B. [2007 (13) SCC 374].

12. It is to be noted that there were a large number of eye witnesses who

also had suffered injuries. PWs. 5,8,19,22 and 26 are such witnesses whose

version is clear, cogent and credible and there is no reason to discard their

version. Trial court and the High Court have rightly relied upon their

evidence. Additionally when the factual scenario is tested on the touchstone

11 of legal principles relating to right of private defence are concerned it is

clear that the plea is without substance. Above being the position present

appeal is sans merit, deserves dismissal, which we direct.

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

...........................................J. (ASOK KUAMR GANGULY) New Delhi, March 31, 2009

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