Ram Pyare Mishra vs Prem Shanker & Ors

offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short the `IPC'). The High

Court held that if on taking overall view of the case right of

self defence is made out or looks probable from the evidence

on record, that right should not be construed narrowly

because the right of self defence is a very valuable right and it

has a social purpose.

2. Background facts as projected by prosecution in a

nutshell are as follows:

The incident occurred on 12.7.1978 at about 5.30 a.m.

The respondents 1 and 2 are brothers and sons of Sheo Balak

Misra. On the aforesaid date and time the accused

respondents armed with knife and lathi respectively arrived at

the `Gotha' of the Mohan Mishra (hereinafter referred to as the

`deceased') and accused Hari Shanker started beating the

deceased with lathi and also asked his brother Prem Shanker

to kill him, whereupon Prem Shanker assaulted the deceased

with knife. On hearing the cries of deceased, his brother R.P.

2 Mishra (PW-1) who was washing his hands at the Hand Pump

installed in the east of `Gotha' of Ramakant Mishra, rushed to

the scene of occurrence. The cries also attracted Ramakant

Mishra (P.W.2), Suresh Mishra (P.W.4), Shiv Sahai and

Vibhuti Mishra. Ramakant Mishra tried to rescue the

deceased but he too was assaulted by Prem Shanker with

knife. Deceased fell down on the ground. The witnesses

succeeded in apprehending Prem Shanker along with the knife

with which he had assaulted the deceased and Ramakant.

However, accused Hari Shanker succeeded in making good his

escape. Thereafter Ram Pyare Mishra and other witnesses

proceeded to Police Station Kotwali along with Mohan Mishra

and accused Prem Shanker on tractor trolley of Gangotri

Mishra. Before they could reach police station, Mohan Mishra

died on the way. R.P. Mishra (P.W.1) prepared F.I.R. (Ex. Ka.

I) in his own handwriting and presented the same at Police

Station Kotwali at 6.30 a.m. on the same day. Prem Shanker

and blood stained knife, (Ex.1) recovered from him were

handed over to police at the police station, in respect of which

memo Ex. Ka. 2 were prepared by Moharrir (PW-6) who also

3 prepared Check report and registered the case in general

diary. S.I. Harsh Nath Singh (PW-5) was present at the police

station when the F.I.R. was lodged. He took up investigation

and recorded the statement of first information at the police

station. S.I. Radhey Shyam Tewari conducted inquest on the

dead body of Mohan Mishra, which had been brought to the

police station by first informant and others. The dead body

was then sent for postmortem examination with constable

Ram Asrey and Rang Nath. After recording the statements of

Shiv Sahai and Suresh Mishra (P.W.4), the Investigating

Officer reached the place of occurrence along with first

informant and witness Shiv Sahai. He made inspection of the

scene of occurrence and prepared site plan Ex. Ka.13. The

place where blood was found has been shown by letter `A' in

the site plan. Hari Shanker was arrested on the same day.

Injured Ramakant Mishra was, however, interrogated on

13.7.1978 and after completing the investigation charge sheet

Ex. Ka 15 was submitted against both the accused persons.

4 Dr. Vermpal conducted autopsy on the dead body of

Mohan Mishra on 12-7-78 at 12 noon and following ante

mortem injuries were found.

1. Incised wound 2" 1/4" x skin deep on right side

forehead 1" above the right eye brow and 1-1/2"

away from right ear margins clean cut, gaping

present, blood clots present and wound was

horizontally placed.

2. Incised wound l" x 1/4" x muscle deep on

middle of left arm margins clean gaping present,

blood clots present.

3. Punctured wound 1-1/4'' x 1/2" x chest cavity

deep on right side chest 1" outer to mid line chest

and 4" away and above to right nipple, lying

vertically, margins clean cut gaping present, blood

clots present.

In the internal examination pleura was found

congested and cut underneath injury No.3, Right

lung had also a cut Mark 3/4" x 1/2" pulmonary

vessels had also been cut. The chest cavity

5 contained fresh blood about 520 ml. Stomach was

empty while large intestines contained gases and

faecal matter. In the opinion of the doctor death

was due to shock and hemorrhage as a result of

ante mortem injuries. The postmortem report is

Ex.Ka.4.

The motive for assaulting Mohan Mishra as alleged in the

first information report was that on 10-7-78 Prem Shanker

had made an attempt to have carnal intercourse with Rakesh,

son of deceased and Rakesh told this fact to his father.

Deceased accosted accused Prem Shanker whereupon the

latter threatened him with dire consequences.

Since the accused persons pleaded innocence, trial was

held. In order to substantiate the accusations six witnesses

were produced. R.P. Mishra (PW-1) is the first informant and

younger brother of the deceased. Ramakant Mishra (PW-2) is

an eye witness. It is to be noted that PW-1 was the injured

witness. The accused persons took the stand that on the date

6 of occurrence accused Prem Shanker went to throw cow dung

in the field in the morning and he was assaulted by Mohan

Mishra with lathi. On hearing his cries his younger brother

Hari Shanker came there with spear in his hand to save Prem

Shanker. He assaulted the deceased.

As noted above, the trial Court found the evidence of eye

witnesses to be credible, cogent and recorded conviction. In

appeal, the High Court found substance in the plea of exercise

of right of private defence and directed acquittal.

Criminal Appeal No.181 of 2001 has been filed by the

complainant while State of U.P. has filed other Criminal

Appeal No.182 of 2001.

3. In support of the appeals, learned counsel for the

appellants submitted that the High Court has acted on

surmises and conjectures and has accepted the plea of

exercise of right of private defence. The High Court's

conclusion as regards non-mention in the FIR that the witness

7 managed to evade the lathi blow or about the injury on the

accused are legally untenable. The High Court has not

examined the question as to whether the right of private

defence as claimed to have been exercised has been exceeded.

It was pointed out that the witness stated about the assault by

lathi but in the instant case the deceased does not appear to

have received any lathi blow. Since lathi was found at the spot

as claimed the defence version, the High Court probabilised

that deceased had made an assault on accused Prem Shanker

by lathi. The genesis and origin of the occurrence has been

suppressed and true facts have not been presented. The High

Court, it is submitted, accepted the plea of right of private

defence but without any material to substantiate the plea, the

High Court came to an abrupt conclusion that the right has

been exercised and the accused persons were acting in self

defence. The High Court also came to a conclusion that the

injuries on accused Prem Shanker were not satisfactorily

explained. It was pointed out that those injuries were

superficial in nature. To similar effect is the stand taken by

the State.

8

4. Learned counsel for the accused respondents submitted

that in the case of acquittal if two views are possible, the view

in favour of the accused has to be accepted. The High Court

on analyzing the evidence came to a conclusion that the

accused persons were exercising the right of private defence.

5. 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

9 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 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

10 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 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

11 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.

6. 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

12 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

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

13 of right of private defence.

7. 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.

8. 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

14 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).

9. 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

15 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.

10. 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

16 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.

11. 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

17 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."

12. 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.

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

Anr. vs. State of Tamil Nadu (2005 (10) SCC 358). 18

14. In the instant case the High Court held that the lathi

injuries were there but came to erroneous conclusion that the

injuries appear to have been inflicted in a different manner.

The High Court also came to a conclusion that if the spear

was used blunt injury could not have been caused.

15. Unfortunately, the High Court overlooked that the

categorical finding recorded by the trial Court was that one

side of the weapon was blunt and other side was sharp and

one blunt injury was explained. The High Court appears to

have wrongly interpreted the opinion of the doctor. The

genesis according to the High Court has not been established.

If that be so, there was no question of exercise of right of

private defence. The High Court's conclusion as regards

shifting the onus on the prosecution is also without any legal

foundation. It is to be noted that nothing was found in the

field as was pleaded by the defence to substantiate the right of

private defence. The FIR was promptly lodged. The doctor had

opined that the injury was possible with knife but the High

Court without any discussion held otherwise. So far as the

19 alleged non-explanation of injuries on the accused aspect is

concerned, the High Court clearly overlooked the relevant

materials. From the evidence it is clear that after the accused

persons assaulted the deceased and the injured witnesses

they were beaten by the villagers. In the FIR also there is

mention about the beating given by villagers. The High Court

held that the details of the assaults were not given in the FIR.

In this context, the view expressed by this Court in Chacko @

Aniyan Kunju and Ors. v. State of Kerala (2004 (12) SCC 269)

needs to be noted. In paras 7 and 8 it was observed as follows:

"7. Coming to the question whether on the basis of a solitary evidence conviction can be maintained. A bare reference of Section 134 of the Indian Evidence Act, 1872 (in short `the Evidence Act') would suffice. The provision clearly states that no particular number of witnesses is required to establish the case. Conviction can be based on the testimony of single witness if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the Court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained. Undisputedly, there were injuries found on the body of the accused persons on medical evidence. That

20 per se cannot be a ground to totally discard the prosecution version. This is a factor which has to be weighed along with other materials to see whether the prosecution version is reliable, cogent and trustworthy. When the case of the prosecution is supported by an eyewitness who is found to be truthful, as well, mere non-explanation of the injuries on the accused persons cannot be a foundation for discarding the prosecution version.

Additionally, the dying declaration was found to be acceptable.

8. Other plea emphasized related to alleged exercise of right of private defence. Merely because there was a quarrel and two accused persons sustained injuries, that does not confer a right of private defence extending to the extent of causing death as in this case. Though such right cannot be weighed in golden scales, it has to be established that the accused persons were under such grave apprehension about the safety of their life and property that retaliation to the extent done was absolutely necessary. No evidence much less cogent and credible was adduced in this regard. The right of private defence as claimed by the accused persons have been rightly discarded."

16. So far as non-explanation of superficial injuries on the

accused persons is concerned, in Anil Kumar v. State of U.P.

(2004 (13) SCC 257), it was held as follows: 21

"Non-explanation of injuries by the prosecution will not affect prosecution case where 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 creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries. As observed by this Court in Ramlagan Singh v. State of Bihar (AIR 1972 SC 2593) prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In Hare krishna Singh and Ors. v. State of Bihar (AIR 1988 SC 863), it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is

22 more so when the injuries are simple or superficial in nature. In the case at hand, trifle and superficial injuries on accused are of little assistance to them to throw doubt on veracity of prosecution case. (See Surendra Paswan v. State of Jharkhand (2003) 8 Supreme 476)."

17. The basic question which was to be considered by the

High Court was that even if the right of private defence was

exercised, whether that was exceeded. In the instant case, the

evidence clearly shows that though there may be at some

point of time the exercise of right of private defence by the

respondents existed, the same has been exceeded. The

respondents are therefore convicted of offence punishable

under Section 304 Part I IPC. Custodial sentence of 8 years

would meet the ends of justice. The appeals are allowed to the

aforesaid extent. The respondents who are on bail shall

surrender to custody forthwith to serve the remainder of

sentence.

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

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

23 (P. SATHASIVAM)

.................................J. (AFTAB ALAM) New Delhi, August 22, 2008

24