BABULAL BHAGWAN KHANDARE AND ANR.versusSTATE OF MAHARASHTRA

           BABULAL BHAGWAN KHANDARE AND ANR.                                  A·
                                    v.
                      STATE OF MAHARASHTRA

                          DECEMBER 2, 2004
                                                                              B
              [ARIJIT PASAYAT AND S.H. KAPADIA, JJ.]

      Penal Code, 1860; Ss. 34, 96 to 105, Exception 4 to Section 300 and
 Section 302:

        Murder of three persons-Right of private defence-Applicability of- C
  Held: Notwithstanding origin of sudden quarrel by way of provocation or
  striking blow by one party on another, yet their subsequent conduct may
  put both the parties on equal footing in ~espect of guilt-Exception 4 to
· Section 300 could be applied provided offender not allowed to take undue
  advantage/acted in cruel manner-However, in the facts and circumstances D
  of the case Courts below rightly held that Exception 4 to Section 300
  inapplicable-If the circumstances confirm that right of private defence
  legitimately exercised, Court could consider it even though not pleaded by
  the accused-Though burden of estabiishing self-defence is on the accused, -
  it could be discharged by producing material showing preponderance of
  probabilities in favour of the defence/accused-But it should not" be based E
  on surmises and speculations-Since there is no material to suggest that
  the accused persons apprehended danger of any kind from the opposite
  party, the claim of right of private defence rightly discarded by the Courts
  below.
                                                                              F
      Section 34-Principle of joint liability-Applicability of

      According to the prosecution, on the fateful day, accused-appellants,
 one of the deceased persons and another were playing cards when there
 arose altercations between the accused and the deceased. However,
 uncle of one of the deceased persons intervened and settled the matter.      G
 Later, on the same day, accused persons started quarrel again, abused
 the deceased in filthy language and assaulted the deceased, husband of
 the Complainant, and his two nephews with sharp edged weapons. Two
 of the victims succumbed to the injuries even before their hospitalization
 and another died in the hospital. A complaint was lodged by the wife         H
                                    633
    634                  SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   of one of the deceased persons and Police investigated the case. During
    investigation blood stained clothes and weapons used in the crime were
    recovered at the instance of the accused persons, and the. case was
    committed to the Court of Sessions. Charges were framed against the
    accused persons under Sections 302 and 307 read with Section 34 IPC.
B   Trial Court found two of th.e accused persons guilty of committing the
    offence of murder and sentenced them to undergo imprisonment for life
    and also imposed fine; another accused/accused No. 3, wife of one of the
    accused persons, acquitted of all the offences. The Trial Court rejected
    the plea of self-defence and applicability of Exception 4 to Section 300
    IPC. On. appeal, conviction and sentence were affirmed by the High
c   Court. Hence the present appeal.

          It was contended for the appellants that the Courts below discarded
    the plea of right of private defence and applicability of Exception 4 to
    Section 300 IPC without properly analyzing the fact; and that in the
D   circumstances of the case, Section 34 IPC cannot be pressed into service.

          Dismissing the appeal, the Court

         HELD : 1. Exception 4 to Section 300 IPC deals with cases in which
    notwithstanding that a blow may have been struck, or some provocation
E   given in the origin of the dispute or in whatever way the quarrel may
    have originated, yet the subsequent conduct of both parties puts them
    in respect of guilt upon equal footing. The homicide committed is then
    clearly not traceable to unilateral provocation, nor in such cases could
    the whole blame be placed on one side. For if it were so, the Exception
F   more appropriately applicable would be Exception 1 to Section 300 IPC.
    Where the offender takes ·undue advantage or has acted in a cruel or
    unusual manner, the benefit of Exception 4 cannot be given to him. If
    the weapon used or the manner of attack by the assailant is out of all
    proportion, that circumstance must be taken into consideration to decide
    whether undue advantage has been taken. [642-F-G-H; 643-D-E)
G
          Kikar Singh v. State of Rajasthan, AIR (1993) SC 2426, relied on.

         2.1. The liability of one person for an offence committed by another
    in the course of criminal act perpetrated by several persons arises under
H   Section 34 IPC if such criminal act is done in furtherance of a common
           BABULAL BHAGWAN KHANDARE v. STATE                           635

intention of the persons who join in committing the crime. Direct proof        A
of common intention is seldom available and, therefore, such intention
can only be inferred from the circumstances appearing from the proved
facts of the case and the proved circumstances. With regard to the charge
of common intention, the prosecution has to establish by evidence,
whether direct or circumstantial, that there was plan or meeting of mind       B
of all the accused persons to commit the offence for which they are
charged with the aid of Section 34, be it pre-arranged or on the spur of
moment; but it must necessarily be before the commission of the crime.
The true contents of the Section are that if two or more persons
intentionally do an act jointly, the position in law is just the same as if
each of them has done it individually by himself. [643-G-H; 644-A-B-CI         c
     Ashok Kumar v. State of Punjab, AIR (1977) SC 109, relied on.

     2.2. As a result of the application of the principles enunciated in
Section 34, when an accused is convicted under Section 302 read with
Section 34, in law it means that the accused is liable for the act which       D
caused death of the deceased in the same manner as if it was done by
him alone. The provision is i11tended to meet a case in which it may be
difficult to distinguish between acts of individual members of a party
who act in furtherance of the common intention of all or to prove exactly
what part was taken by each of them. In the instant case, Section 34 has       E
therefore been rightly applied. (644-F-G-H)

     Ch. Pulla Reddy & Ors. v. State of Andhra Pradesh, AIR (1993) SC
1899 and Anil Sharma & Ors. v. State of Jharkhand, (2004] 5 SCC 679,
relied on.
                                                                               F
      3.1. 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 toe same is available to be considered from the material on
record. The burden of establishing the plea of self-defence is on the          G
accused and the burden stand discharged by showing preponderance of
probabilities in favour of that plea on the basis of the material on record.
                                                        (645-F-H; 646-C-D]

      Munshi Ram & Ors. v. Delhi Administration, AIR (1968) SC 702;
State of Gujarat v. Bai Fatima, AIR (1975) SC 1478; State of UP. v. Mohd.      H
    636                 SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.

A   Musheer Khan, AIR (1977) SC 2226 and Mohinder Pal Jolly v. State of
    Punjab, AIR (1979) SC 577, relied on.

         3.2. The number of injuries is not alw~ys a safe criterion for
    determining who the aggressor was. It cannot be stated as a universal
B   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
    probab.ilise the version of the right of private defence. Non-explanation
    of the injuries sustained by the accused at about the time of occurrence
c   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 injur~es sustained by the accused are minor and superficial or where
    the evidence is so clear and cogent, so independent and disinterested,
D   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. (644-H; 647-A-B-C]

          Lakshmi Singh v. State of Bihar, AIR (1976) SC 2263, relied on.

E         3.3. A plea of right of private defe~ce 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
F   entire incident must be examined with care and viewed in its proper
    setting. {647-C-D-E]

         3.4. To claim a right of private defence extending to voluntary
    causing of death, accused must show that there were circumstances
    giving rise to reasonable grounds for apprehending that either death or
G   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. (647-F-G]

        3.5. The right of private defence commences, as soon as a reasonable
H   apprehension of danger to the body arises from an attempt, or threat,
           BABULAL BHAGWAN KHANDARE v. ST ATE                         637

or commit the offence, although the offence may not have been committed       A
but until there is that reasonable apprehension. The right lasts so long
as the reasonable apprehension of the danger to the body continues.
                                                    (647-G-H; 648-A-B]

     Jai Dev v. State of Punjab, AIR (1963) SC 612, relied on.
                                                                              B
     3.6. 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. [648-B-C]                              C
     Biran Singh v. State of Bihar, AIR (1975) SC 87; Wassan Singh v.
State of Punjab, (1996] 1 SCC 458 and Sekar alias Raja Sekharan v. State
represented by Inspector of Police, T.N., [2002) 8 SCC 354, relied on.

     Butta Singh v. State of Punjab, AIR (1991) SC 1316, referred to.         D
     3.7. The right of self-defence is a very valuable right, serving a
social purpose and should not be construed narrowly. [648-H; 649-A)

     Vidhya Singh v. State of MP., AIR (1971) SC 1857, referred to.
                                                                              E
     3.8. 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      F
spot it would be inappropriate, as held by this Court, to adopt tests by
detached objectively 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 required in the thinking of a man in       G
ordinary times or under normal circumstances. (649-A-B-C)

     Russel on Crime, 11th Edition, Volume 1 to p. 49, referred to.

     3.9. The right of private defence is essentially a defensive right
                                                                              H
    638                   SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   circumscribed by the governing statute, the IPC, available only when
    the circumstances clearly justify it. It should not be allowed to be
    pleaded or available as a pretext for a vindictive, aggressive or retributive
    purpose of offence. [649-E-F]

B         4. In the instant case, there is no material even to suggest that the
    accused persons apprehended danger of any kind, much less a threat
    to life. The claim of right of private defence has therefore been rightly
    discarded by the Courts below. (649-G-H)

        CRIMINAL APPELLATE JURISDICTION                   Criminal Appeal No.
C   1403 of 2004.

        From the Judgment and Order dated 9.6.2003 of the Bombay High
    Court in Cr!. A. No. 294 of 1998.

D         Sunil Kumar Jain for the Appellants.

          Manish Pitale and S.S. Shinde for Mukesh K. Giri for the Respondent.

          The Judgment of the Court was delivered by

E         ARIJIT PASAYAT, J.: Leave granted.

          Appellants question correctness of the judgment rendered by a Division
    Bench of the Bombay High Court, Nagpur Bench upholding their conviction
    for offences punishable under Sections 302 and 307 read with Section 34
    of the Indian Penal Code, 1860 (in short the 'IPC'). For the former offence
F
    each was sentenced to undergo imprisonment for life and to pay a fine of
    Rs. 500 with default stipulation and seven years' rigorous imprisonment and
    a fine of Rs. 500 with default stipulation for the latter offence. One Sau
    Kamal wife of appellant Babula! Khandare was acquitted of all the offences
    with which she was charged. The appellants were, however, acquitted of the
G   offence of alleged attempt to commit murder of Dinkar Shivaji Wankhede.

          Prosecution version as unfolded during trial is essentially as fol\ows:

        Deceased Shivaji Natthu Wankhade was the husband of Complainant
H   Vatchalabai (PW-1). Deceased Madhukar Daulat Wankhede and Ramesh
    BABULAL BHAGWAN KHANDARE v. STATE [PASAYAT, J.]                        639

Ganpat Wankhede were the nephews of Shivaji and Vatchalabai. Injured               A
Sudhakar (PW-5) is the brother-in-law ofVatchalabai and deceased Shivaji.
The houses of the accused persons are situated near the house of complainant
Vatchalabai. The accused persons are cobblers and they use Suri (a kind of
knife) and Rapi for cutting the skin of cattle required for preparing foot
wear.
                                                                                   B
      The incident took place on 8.8.1997 which was the day ofNagpanchami
festival. On that day at about 04.00 p.m. accused Babula!, accused Nandulal,
deceased Madhukar, Dadarao and Arun were playing cards in front of the
house of Madhukar. Some verbal exchange took place between accused
Babula! and deceased Madhukar. On noticing the same, deceased Shivaji              C
went to intervene and convinced all of them not to quarrel. Thereafter
accused Babula) and accused Nandulal as also deceased Madhukar returned
to their houses.

      Later on the same day, around 7.00 p.m. again a verbal exchange took         D
place between accused Babulal, accused Nandulal and deceased Madhukar.
At that time also, deceased Shivaji tried to convince all of them not to quarrel
as it was a day of festival. Accused Babula) uttered a song containing some
filthy words. Deceased Shivaji and Madhukar started returning home. When
they were returning home, accused Babula) asked his wife i.e. accused No.3
Sau Kamal to bring Rapi from the house. Accused No.3 rushed into her               E
house, brought Rapi and handed it over to accused Babula), who tried to
conceal the same by holding his hand back. On seeing this, Dinkar (PW-
3) gave a word of caution to Shivaji, who turned back. Accused Babula) gave
two blows of Rapi on the abdomen of Shivaji. Due to these blows, internal
organs of Shivaji came out and he fell on the ground. Dinkar attempted to          F
hold accused Babula! and in that attempt, he sustained injuries to the fingers
of his right-hand. As per Vatchalabai (PW-1), accused Babula! gave two
blows of Rapi to Madhukar, one on his left leg and the other on his chest.
As per Dinkar, accused Babula! gave two blows of Suri to Madhukar, one
on his abdomen and the other on his leg. Madhukar fell down in front of
his house. The accused Babula! and Nandulal assaulted Sudhakar. Accused            G
Babula! gave a blow of Rapi on the abdomen of Sudhakar and accused
Nandulal gave a blow of knife on the chest of Sudhakar. Sudhakar also fell
down on the ground. Deceased Ramesh who was present on the spot, said
that the accused persons had unnecessarily assaulted innocent persons.
Thereupon accused Nandulal assaulted Ramesh with Suri on his abdomen.              H
    640                   SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   The internal organs of Ramesh came out from the abdomen. Ramesh attempted
    to move from the spot, but ultimately he collapsed in front of the house of
    Shivaji.

          On the same day, Janefal Police received a message on wireless that
B   there was an incident of quarrel in village Deulgaon Sakharsha and an entry
    in respect of the said message came to be taken in the station diary by Head
    Constable Aniruddha Nakhate. PSI Thakara who was in charge of the Police
    Station, proceeded for spot. On reaching the village, he noticed that the
    injured persons were already shifted to Primary Health Centre, Janefal. PSI
    Thakare recorded the report given by complainant Vatchalabai (PW-I).
c
          Shivaji died before he was reached the hospital. Ramesh also died prior
    to receiving treatment in the hospital. Madhukar was shifted to General
    Hospital, Buldana where he received some medical treatment. He succumbed
    to injuries in the midnight of 11th August, 1997 (night intervening 11th and
D   12th August). Medical treatment was also received by injured Sudhakar and
    Dinkar in Primary Health Centre, Janefal and then in General Hospital,
    Buldana.

         The inquest Panchanamas were prepared by the police in respect of the
    dead bodies of Shivaji, Madhukar and Ramesh. The clothes on the dead
E   bodies were taken in custody by police. Post-mortem was conducted on the
    dead bodies.

          On 11.8.1997 when accused Nos. I and 2 were in the custody of police,
    they gave information regarding the weapons of offence and expressed their
F   readiness to produce the same from their respective houses. The memoranda
    of the statements given by accused Nos. I and 2 were prepared. Accused
    No. I Babula! produced Rapi and Suri from the roof of his house. He also
    produced his blood stained clothes from his house. Accused No. 2 Nandulal
    produced a knife from the roof of his house. His clothes were already seized
    at the time of his arrest. All the articles were forwarded to Chemical Analyst,
G   Nagpur for examination and the Chemical analyser's report was received.
    On completion of investigation, the accused Nos. I to 3 were charge sheeted.

         On the case being committed to the Court of Session, Learned Sessions
    Judge framed the charge. The prosecution examined in all nine witnesses
H   to further its version. Out of them three witnesses (PWs I, 3 and 5) were
    BABULAL BHAGWAN KHANDARE v. STATE [PASAYAT, J.]                         641

claimed to be the witnesses to the occurrence.                                      A

     The defence of the accused/appellants are, as revealed from the
examination of accused under Section 313 ofthe Code of Criminal Procedure,
I 973 (in short 'the Code') was that deceased Madhukar and deceased
Ramesh entered their house in their absence and attempted to tease accused          B
No. 3. Accused No. 3 raised hue and cry. When people gathered, accused
No. 3 complained to them about the conduct of Madhukar and Ramesh. On
arrival of accused Babula! and accused Nandulal, accused No. 3 narrated
the incident to them. Accused nos. I and 2 thereupon went to the house of
Madhukar to enquire. At that time Buddha people (the community to which
the deceased belonged) attacked accused Babula! and Nandulal. Since it was          C
dark, they could not see as to who assaulted whom. The further contention
of the accused persons is that Buddha people attacked their houses and the
doors of the houses were broken and houses were demolished.

     The defence of the accused persons, as is revealed from the suggestions        D
made to the prosecution witnesses during their cross examination, was that
deceased Shivaji and Ramesh were drunk and Ramesh entered the houses
of accused persons to rape accused No. 3. When the accused persons made
a complaint to Buddha people as regards the conduct of Ramesh, they made
an attack on the house of accused persons. They gave a severe beating to
accused Babula! and accused Nandulal and there was commotion during                 E
which the injuries were caused to the deceased and the injured persons at
the hands of Buddha people themselves.

      The learned Sessions Judge, Buldana accepted the case of prosecution
and held that the charges levelled against accused Nos. l and 2 were proved.        F
He, therefore, convicted and sentenced the accused Nos. l and 2 who are
the appellants herein, as detailed above. Trial Court analysed the evidence
of the witnesses in detail, keeping in view the fact that they were related
to the deceased. The evidence of eye witnesses PWs. l, 3 and 5 was felt
to need careful and close scrutiny. It discarded the plea of the right of private
defence as well as the plea that Exception 4 to Section 300 applies to the          G
facts of the case. The order of conviction and sentence was assailed by the
appellants before the High Court.


    The High Court held that the evidence of the injured eye witnesses was
cogent, credible and truthful. The High Court also examined the evidence            H
    642                   SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A   in great detail and came to hold that the conclusions of the trial court were
    in order.

          In support of the appeal, learned counsel for the appellants submitted
    that the courts below have discarded the plea of right of private defence and
B   applicability of Exception 4 to Section 300 IPC without properly analyzing
    the factual position. The defence plea was probable and should not have
    been discarded. In any event, Section 34 IPC cannot be pressed into service,
    and more particularly so far as appellant no. 2 is concerned.

          Learned counsel for the respondent-State on the other hand supported
c the judgments of the courts below and submitted that the factual findings
    recorded clearly indicate the role played by each of the accused persons.
    Courts below have rightly discarded the plea that the accused were exercising
    right of private defence or that Exception 4 to Section 300 is applicable.
    Section 34 IPC has also been rightly applied.
D
          The Fourth Exception of Section 300, IPC covers acts done in a sudden
    fight. The said exception deals with a case of prosecution not covered by
    the first exception, after which its place would have been more appropriate.
    The exception is founded upon the same principle, for in both there is
    absence of premeditation. But, while in the case of Exception I there is total
E   deprivation of self-control, in case of Exception 4, there is only that heat
    of passion which clouds men's sober reason and urges them to deeds which
    they would not otherwise do. There is provocation in Exception 4 as in
    Exception 1; but the injury done is not the direct consequence of that
    provocation. In fact Exception 4 deals with cases in which notwithstanding
F   that a blow may have been struck, or some provocation given in the origin
    of the dispute or in whatever way the quarrel may have originated, yet the
    subsequent conduct of both parties puts them in respect of guilt upon equal
    footing. A 'sudden fight' implies mutual provocation and blows on each
    side. The homicide committed is then clearly not traceable to unilateral
    provocation, nor in such cases could the whole blame be placed on one side.
G   For if it were so, the Exception more appropriately applicable would be
    Exception I.

        The help of Exception 4 can be invoked if death is caused (a) without
    premeditation, (b) in a sudden fight; (c) without the offender's having taken
H   undue advantage or acted in· a cruel or unusual manner; and (d) the fight
     BABULAL BHAGWAN KHANDARE v. STATE [PASAYAT, J.]                        643

  must have been with the person killed. To bring a case within Exception           A
  4 all the ingredients mentioned in it must be found. It is to be noted that
  the 'fight' occurring in Exception 4 to Section 300, IPC is not defined in
  the IPC. It takes two to make a fight. Heat of passion requires that there must
· be no time for the passions to cool down and in this case, the parties have
  worked themselves into a fury on account of the verbal altercation in the         B
  beginning. A fight is a combat between two and more persons whether with
  or without weapons. It is not possible to enunciate any general rule as to
  what shall be deemed to be a sudden quarrel. It is a question of fact and
  whether a quarrel is sudden or not must necessarily depend upon the proved
  facts of each case. For the application of Exception 4, it is not sufficient to
  show that there was a sudden quarrel and there was no premeditation. It must      C
  further be shown that the offender has not taken undue advantage or acted
  in cruel or unusual manner. The expression 'undue advantage' as used in
  the provision means 'unfair advantage'.

       Where the offender takes undue advantage or has acted in a cruel or          D
 unusual manner, the benefit of Exception 4 cannot be given to him. If the
 weapon used or the manner of attack by the assailant is out of all proportion,
 that circumstance must be taken into consideration to decide whether undue
 advantage has been taken. In Kikar Singh v. State of Rajasthan, AIR (1993)
 SC 2426 it was held that if the accused used deadly weapons against the
 unarmed man and struck a blow on the head it must be held that using the           E
 blows with the knowledge that they were likely to cause death, he had taken
 undue advantage. In the instant case blows on vital parts of unarmed persons
 were given with brutality. The abdomens of two deceased persons were
 ripped open and internal organs come out. In view of the aforesaid factual
 position, Exception 4 to Section 300 l.P.C. has been rightly held to be            F
 inapplicable.

      Section 34 has been enacted on the principle of joint liability in the
 doing of a criminal act. The Section is only a rule of evidence and does not
 create a substantive offence. The distinctive\feature of the Section is the
 element of participation in action. The liability of one person for an offence     G
 committed by another in the course of criminal act perpetrated by several
 persons arises under Section 34 if such criminal act is done in furtherance
 of a common intention of the persons who join in committing the crime.
 Direct proof of common intention is seldom available and, therefore, such
 intention can only be inferred from the circumstances appearing from the           H
    644                   SUPREME COURT REPORTS (2004] SUPP. 6 S.C.R.

A   proved facts of the case and the proved circumstances. In order to bring
    home the charge of common intention, the prosecution has to establish by
    evidence, whether direct or circumstantial, that there was plan or meeting
    of mind of all the accused persons to commit the offence for which they
    are charged with the aid of Section 34, be it pre-arranged or on the spur of
B   moment; but it must necessarily be before the commission of the crime. The
    true contents of the Section are that if two or more persons intentionally do
    an act jointly, the position in law is just the same as if each of them has done
    it individually by himself. As observed in Ashok Kumar v. State of Punjab,
    AIR (1977) SC 109, the existence of a common i.ntention amongst the
    participants in a crime is the essential element for application of this Section.
c   It is not necessary that the acts of the several persons charged with commission
    of an offence jointly must be the same or identically similar. The acts may
    be different in character, but must have been actuated by one and the same
    common intention in order to attract the provision.

D         As it originally stood the Section 34 was in the following terms:

                  "When a criminal act is done by several persons, each of such
             persons is liable for that act in the same manner as if the act was
             done by him alone."

E         In 1870, it was amended by the insertion of the words "in furtherance
    of the common intention of all" after the word "persons" and before the word
    "each'', so as to make the object of Section 34 clear. This position was noted
    in Mahbub Shah v. Emperor, AIR (1945) Privy Council 118.

F        The Section does not say "the common intention of all", nor does it
   say "and intention common to all". Under the provisions of Section 34 the
   essence of the liability is to be found in the existence ofa common intention
   animating the accused leading to the doing of a criminal act in furtherance
   of such intention. As a result of the application of principles enunciated in
   Section 34, when an accused is convicted under Section 302 read with
G Section 34, in law it means that the accused is liable for the act which caused
   death of the deceased in the same manner as if it was done by him alone.
   The provision is intended to meet a case in which it may be difficult to
  .distinguish between acts of individual members of a party who act in
   furtherance of the common intention of all or to prove exactly what part was
H taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v.
        BABULAL BHAGWAN KHANDARE v. STATE (PASAYAT, J.]                      645

    State ofAndhra Pradesh, AIR (1993) SC 1899, Section 34 is applicable even        A
    if no injury has been caused by the particular accused himself. For applying
    Section 34 it is not necessary to show some overt act on the part of the
    accused.

        The above position was highlighted recently in Anil Sharma and               B
    Others v. State of Jharkhand, (2004] 5 SCC 679.

          InAbrahim Sheikh & Ors. v. State of West Bengal, AIR (1964) SC 1263
    this Court stated that no doubt a person is only responsible ordinarily for
    what he does and Section 38 IPC ensures that. But Section 34 as well as
    Section 35 provide that if the criminal act is the result of the common          C
    intention, then every person who did the criminal act with such intention
    would be responsible for the· total offence irrespective of the share which
    he had in its perpetration. The logic, highlighted illuminatingly by the
    Judicial Committee in the illustrious case of Barendra Kumar Ghosh v.
    Emperor, AIR ( 1925) PC I, is that in crimes as in other things "they also       D
    serve who only stand and wait".

           Section 34 has therefore been rightly applied. Only other 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     E
    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   F
    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      G
    is available to be considered from the material on record. Under Section l 05
    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                H
    646                   SUPREME COURT REPORTS [2004) SUPP. 6 S.C.R.

A   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
B   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
C   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
D   of UP. v. Mohd. Musheer Khan, AIR (1977) SC 2226 and Mohinder Pal
    Jolly v. State of Punjab, AIR (1979) SC 577). Sections 100 to l 0 I 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
E   observation of this Court in Salim Zia v. State of UP., 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
F            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."
G
    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.

H         The number of injuries is not always a safe criterion for determining
    BABULAL BHAGWAN KHANDARE v. STATE [PASAYAT, J.]                         647

who the aggressor was. It cannot be stated as a universal rule that whenever        A
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 defern::e. 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           B
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     C
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          D
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           E
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 I 00 to I 06 is controlled by Section 99. To claim     F
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.                            G

      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      H
    648                  SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

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

          In order to find whether right of private defence is available Q.r 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
c   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 ).

D         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 partiys to preserve composure and use exactly only
E   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
F   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,
G   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.

H         The right of self-defence is a very valuable right, serving a social
    BABULAL BHAGWAN KHANDARE v. STATE [PASAYAT, J.]                         649

purpose and should not be construed narrowly. (See Vidhya Singh v. State            A
ofMP. 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 scrutfny. In adjudging the question as to
whether more force than was necessary was used in the prevailing                    B
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          C
ordinary times or under normal circumstances.

    In the illuminating words of Russel (Russel on Crime, 11th Edition
Volume I at page 49):
                                                                                    D
         " .... 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 m;,iy indeed pursue his adversary until
         the danger is ended and if in a conflict between them he happens           E
         to kill his attacker, such killing is justifiable."

      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          F
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 providi~g for exercise of the right,
care has been taken in IPC not to provide and h~S~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        G
no longer survived.

     In the instant case, there is no material even to suggest that the accused
persons apprehended danger of any kind, much less a threat to life. The
claim of right of private defence has therefore been rightly discarded.             H
    650                   SUPREME COURT REPORTS [2004] SUPP. 6 S.C.R.

A        When the legal position as noted above is applied to the factual
    scenario the inevitable conclusion is that the courts below have rightly found
    the accused appellants guilty, and no interference is called for with the
    concurrent findings of fact, the conviction as recorded and sentence as
    imposed.
B
          Appeal fails and is dismissed accordingly.

    S.K.S.                                                     Appeal dismissed.