Raghbir Singh & Ors vs State Of Haryana

Raghbir Singh and Ors. ...Appellants

Vs.

State of Haryana ...Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

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

the Punjab and Haryana High Court dismissing the appeal (Crl. Appeal

1 No.68-DB of 1998) so far as the appellants are concerned. However, co-

accused Bhagmal was acquitted.

3. The appellants were convicted for offences punishable under

Sections 148, 302 read with Section 149 and 323/149 of the Indian Penal

Code, 1860 (in short `the IPC') but they were acquitted of the charge under

Section 506 IPC. Co-accused Bhagmal was convicted along with the

appellants, but, as noted above, he was acquitted by the High Court.

4. The prosecution story, in a nutshell is as follows.

A case was registered on the basis of statement (Exh.P.L.) of

Krishan (complainant-PW-5). As per his statement, joint land owned by his

father Naurang (PW6) and his three brothers was earlier partitioned. In that

partition, the land in which a well and a room had been constructed by

Naurang, fell to the share of his brother Bhagmal and in lieu of it, he was to

pay Rs.6600/- to Naurang. Inspite of repeated demands, he did not pay that

amount and on December 30, 1994, he refused to pay the same. On

2 December 30, 1994, at about 1 P.M., complainant-Krishan was standing at

the door of his house and his brother Attar Singh (hereinafter referred to as

`the deceased') was standing in front of his house in the street. All the

appellants, armed with `Lathis', came there and started giving blows to the

deceased saying that he would not be spared. Krishan came to rescue his

brother, whereupon, appellant Raghbir Singh gave `Lathi' blow on the right

side of his chest. Appellant Mukhtiar Singh also inflicted a `Lathi' blow

hitting Krishan on the back side of his neck. He fell down on the ground and

in that position appellant Kuldeep Singh gave him a `Lathi' blow on his waist

and appellant Raghbir Singh inflicted a `Lathi' blow on his nose. On hearing

the alarm raised by Krishan, his father Naurang (PW6) and his mother Smt.

Lichhma came out of the house. Krishan PW-5 and Attar Singh the deceased

also inflicted some injuries to the appellants in self-defence.

On December 30, 1994, Dr. Ramphal (PW-1) medico legally

examined Krishan (PW-5) and found four contusions on his nose, back of

right scapular region, right side of chest and the occipital region. As per

opinion of the Doctor, the kind of weapon used was blunt.

3 On the same day, Dr. Ramphal (PW-1) medico legally examined

Attar Singh and found eight injuries on his person which were a lacerated

wound on the left supra orbital ridge, an abrasion on the left eye, two

contusions on left cheek and right side of forehead, bleeding on nose but no

external injury, a tooth was missing in the lower jaw in frontal part, an

abrasion on the left side of chest and an abrasion on left forearm. According

to the Doctor, the kind of weapon used was blunt.

On December 31, 1994, Attar Singh succumbed to his injuries.

Post mortem on his dead body was conducted by Dr. A.P. Sharma (PW-2) on

December 31, 1994. According to his opinion, the cause of death was due to

the injuries on the head and spleen which were ante mortem in nature and

sufficient to cause death in the ordinary course of nature.

After completion of investigation, challan against the accused was

presented in the Committing Court.

4 In order to prove the offences charged against the accused-

appellants, the prosecution examined fourteen witnesses.

After closure of the prosecution evidence, statements of the

accused were recorded under Section 313 of the Code of Criminal Procedure,

1973 (in short the `Cr.P.C.') in which they denied the prosecution allegations

and pleaded innocence. Plea taken by them is that Krishan and Attar Singh

had gone to the house of accused-Bhagmal armed with lathis and had caused

injuries to Bhagmal and accused-Kuldeep Singh as well as Smt. Krishna wife

of Kartar Singh and Smt. Shakuntla wife of Mukhtiar Singh. The defence

plea taken by the accused is that only Bhagmal and Kuldeep Singh accused

were present at the time of occurrence and they had caused injuries to

Krishan and Attar Singh in self-defence and that the other four accused were

not present at the time of occurrence. They also examined two witnesses in

defence.

The Trial Court, on consideration of the material on record, more

particularly, the evidence of Krishan PW-5, who was injured witness and his

5 father Naurang PW-6, held the appellant guilty and convicted and sentenced

them, as noted above.

The convicted accused persons preferred an appeal before the

High Court which was disposed of by the impugned judgment dismissing the

same qua the appellants while directing acquittal of Bhag Mal.

5. In support of the appeal, learned counsel for the appellant

submitted that the accused persons acted in self defence. The occurrence

took place in course of a sudden quarrel and the weapon was a lathi,

therefore, Section 302 IPC has no application.

6. Learned counsel for the State, on the other hand, supported the

judgment of the High Court.

7. The 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

6 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 place necessary

material on record either by himself adducing positive evidence or by eliciting

7 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

8 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...."

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.

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8. 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 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

10 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

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.

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9. 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 destroyed or has been put to route,

there can be no occasion to exercise the right of private defence.

10. 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 and Sekar alias Raja Sekharan v. State represented by Inspector of

12 Police, T.N. [2002] 8 SCC 354.

11. 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 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

13 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.

12. 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

14 exactitude of only that much which is required in the thinking of a man in

ordinary times or under normal circumstances.

13. 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."

14. 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

15 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 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.

15. Considering the background facts as highlighted above when

tested in the backdrop of the legal principles noted supra the inevitable

conclusion is that the accused persons had not established that they were

exercising right of private defence. But the assaults were made in course of

sudden quarrel and Exception 4 to Section 300 IPC applies. Considering the

background facts as noted above, it would be proper to alter the conviction

from Section 302 IPC to Section 304 Part I IPC. Custodial sentence of 10

years would meet the ends of justice.

16. The appeal is accordingly disposed of.

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

16 (Dr. ARIJIT PASAYAT)

..........................................J. (Dr. MUKUNDAKAM SHARMA) New Delhi November 12, 2008

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