GOPAL & ANR.versusSTATE OF RAJASTHAN

                     [2013] 1 S.C.R. 385


                      GOPAL & ANR.                              A
                              v.
                  STATE OF RAJASTHAN
            (Criminal Appeal No. 1156 of 2007)
                    JANUARY 18, 2013
                                                                B
 [P. SATHASIVAM AND JAGDISH SINGH KHEHAR, JJ.]

      Penal Code, 1860- ss. 96, 97, 100, 102, 105 and s.302
rlw s. 34 - Double murder - Fight between two rival groups -
Death of two persons 'R' and 'P' due to lathi blows inflicted by C
the appellants - Evidence of injured eye-witnesses (PW-7 and
PW-8) and son of 'P' (PW~10) - Conviction of appellants u/
s. 302 rlw s. 34 /PC - Challenge to - Appellants taking plea of
right of private defence~ Held: 'R', PW-7 and PW-8 had gone
to the field of the appellants and there was a fight between D
both the groups - Appellants fought to repel the attack and
in course of the incident, both sides sustained injuries, as a
result of which, 'R' died - In the circumstances, appellants
entitled to plea of private defence insofar as death of 'R' was
concerned, however, they had no right to invoke the right of E
self defence by chasing 'P' and causing fatal injuries on him
- 'P' was not present at the place where 'R' was assaulted -
After inflicting injuries on the person of 'R', the appellants ran
towards 'P', who was standing 10 steps away from the place
of incident - Reasonable apprehension from the side of the F
appellants disappeared when they noticed that 'P' was running
away from the scene in order to escape - Appellants
exceeded their limit when they chased 'P' at some distance,
pushed him down and inflicted several blows with /athis due
to which he died - Conviction of appellants u/s.302 rlw s.34 G
/PC and the life sentence awarded to them, thus, justified -
Evidence Act, 1872 - s. 105.

     The prosecution case was that grudge over a money
settlement agreement resulted in a fight between two rival
                          385                                   H
    386      SUPREME COURT REPORTS             [2013] 1 S.C.R.


A groups, in course of which two persons, 'R' and 'P' were
  beaten to death by the accused party with /athi blows.
  There were in all six accused persons including the two
  appellants (A-1 and A-3). In support of their claim, the
  prosecution heavily relied on the evidence of PW-7 and
B PW-8 - injured eye-witnesses and PW-10 - son of 'P'. The
  trial Court convicted the appellants under Section 302
  read with Section 34 IPC and sentenced them to rigorous
  imprisonment (RI) for life. In appeal, High Court confirmed
  the conviction and sentence imposed upon the two
c appellants, and therefore the instant appeal.
      The appellants raised the following contentions
  before this Court: 1) that members of the complainant's
  party were the aggressors and they came to the field of
  the accused persons and attacked them; 2) that the
D appellants also received injuries at the hands of the
  complainant's party and the prosecution had failed to
  explain the same and 3) that since the members of the
  complainant's party were the aggressors and attacked on
  the accused persons causing injuries to the appellants,
E the accused had a right of private defence, consequently,
  they were entitled for acquittal.

          Dismissing the appeal, the Court

F      HELD: 1.1 The materials placed and relied on by the
  prosecution show that 'R', PW-7 and PW-8 had gone to
  the field of the appellants and there was a fight between
  both the groups. It is also clear that the appellants fought
  to repel the attack and in the course of incident, both
  sides sustained injuries, as a result of which, 'R' died. In
G such circumstances, it would be possible for this Court
  to accept the claim of the appellants that since they were
  defending themselves, they had a right of private defence.
  [Para 12] [393-F-H; 394-A]

H         1.2. Under Section 105 of the Evidence Act, 1872, the
      GOPAL & ANR. v. STATE OF RAJASTHAN                 387

 burden of proof is on the accused, who sets up the plea        A
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. 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        B
accused was necessary for either warding off the attack
or for forestalling the further reasonable apprehension
from the side of the accused. 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                  c
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
                                                                0
cross-examination of 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        E
favour of his plea. Based on the above principles, in view
of the discussion of the prosecution witnesses, viz., PWs
7, ~ and 10 coupled with the fact that the incident
ot:curred in the field of the appellants, who also sustained
injuries which is evident from the evidence of the doctor
(who examined the injuries of the appellants) the stand         F
of the appellants is to be accepted. However, as per the
prosecution story, not only 'R' but in the same incident
'P' also died due to lathi blows inflicted by the appellants.
[Para 13] [394-F-G; 395-B-F-H; 396-A-C]
                                                                G
     1.3. The evidence of PWs 7, 8 and 10 clearly
established that 'P' was not present at the place where
'R' was assaulted. After inflicting injuries on the person
of 'R', the appellants ran towards 'P', who was standing
10 steps away from the place of incident. After seeing the      H
    388      SUPREME COURT REPORTS                   [2013] 1 S.C.R.


A incident relating to the death of 'R', 'P' started running and
  he was chased by the accused persons and they inflicted
  lathi blows on his person. In such a situation, the
  appellants have no right to invoke the right of self
  defence by chasing 'P' and causing fatal injuries on him.
B Reasonable apprehension had disappeared when they
  noticed that 'P' was running away from the scene in order
  to escape, in such circumstances though the appellants
  were entitled to the plea of private defence insofar as the
  death of 'R' is concerned, they were not justified in
C availing the same for the cause of death of 'P'. On the
  other hand, they exceeded their limit and the materials
  placed by the prosecution clearly show that they chased
  'P' at some distance, pushed him down and inflicted
  several blows with lathis due to which he died. In such
  circumstances, the trial Court was justified in convicting
0
  the appellants under Section 302 read with Section 34 of
  IPC and sentencing them to suffer RI for life. Taking note
  of all these aspects, it is clear that the High Court was
  fully justified in confirming the order of conviction and
  sentence insofar as the appellants. [Para 14) (396-0-H;
E 397-A-B]

        V. Subramani & Anr. v. State of T.N. (2005) 10 SCC 358:
    2005 (2 ) SCR 536 - relied on.
                          Case Law Reference:
F
          2005 (2) SCR 536         relied on              Para 13
        CRIMINAL APPELLATE JURISDICTION:: Criminal Appeal
    No. 1156 of 2007.
G        From the Judgment & Order dated 15.04.2006 of the High
    Court of Rajasthan, bench at Jaipur in D.B. Crl Appeal No. 247
    of 2001.

          Kanhaiya Priyadarshi for the Appellants.
H
       GOPAL & ANR. v. STATE OF RAJASTHAN                    389


      Ram Naresh ¥adav, Vibhuti Sushant, Pragati Neekhra for        A
 the Respondent.

      The Judgment of the Court was delivered by

      P. SATHASIVAM, J . .1. This appeal is filed against the
 judgment and order dated 15.04.2006 passed by the High
                                                                    8
 Court of Judicature for Rajasthan at Jaipur Bench in D.B.
 Criminal Appeal 'No. 247 of 2001 whereby the High Court
 dismissed the appeal in respect of the appellants herein and
 confirmed their conviction and sentence awarded by the Court
 of Additional Sessions Judge, Shahpura, District Jaipur,           C
 Rajasthan vide judgment dated 18.04.2001 in Session Case
 No. 24 of 2000.

      2. Brief facts:
                                                                    D
       (a) As per the prosecution case, Rameshwar (since
 deceased) was the guarantor for money settlement agreement
 between one Santosh and Jagdish, residents of Tehsil
 Bishangarh, P.S. Manoharpur; Jaipur, Rajasthan. When
 Jagdish started demanding money from Santosh prior to the          E
 expiry of the agreement, Rameshwar intervened between them.
 Since then Jagdish started keeping a grudge against him which
 is the root cause of the case in hand and resulted into death of
 two persons in a fight between them.

        (b) On 16.07.2000, at 07.30 a.m., when Bhagwan Sahai        F
  (PW-8), Bodu Ram (PW-7) and Rameshwar (since deceased)
  were going towards the well of Padmawati while crossing the
  field of one Prabhat (since deceased), at that time, Gopal (A-
  1), Jagdish, Mahesh (A-3), Patasi, Teeja, Gokali and Sita
  belaboured Rameshwar by inflicting lathi and axe blows. Due       G
  to the attack, Rameshwar died on the spot. When Bhagwan
  Sahai and Bodu Ram tried to intervene, they were also beaten
' by the accused party. When Prabhat (since deceased), who
  was working in his field along with his son-Sadri Yadav (PW-
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    390     SUPREME COURT REPORTS                 [2013] 1 S.C.R.

A 10), approached towards Rameshwar for help, he was also
  beaten to death by the accused persons.

       (c) On the very same day, at 09.45 a.m., Badri Yadav (PW-
  10) submitted a written report at P.S. Manoharpur relating to
  the above-said incident. On the basis of the aforesaid report,
8
  a case under Sections 147, 148, 149, 302 and 323 of the
  Indian Penal Code, 1860 (in short 'the IPC') was registered
  against the accused persons, viz., Gopal (A-1 ), Jagdish,
  Mahesh (A-3), Teeja, Patasi and Gokali and the same was
  committed to the Court of Additional Sessions Judge,
C Shahpura, District Jaipur, Rajasthan and numbered as
  Sessions Case No. 24 of 2000.

       (d) The Additional Sessions Judge, Shahpura after trial,
  by order dated 18.04.2001, convicted Teeja under Section 302
D of IPC and Gopal, Jagdish and Mahesh under Section 302
  read with Section 34 of IPC and sentenced them to suffer
  rigorous imprisonment (RI) for life alongwith a fine of Rs.1,000/
  - each, in default, to further undergo simple imprisonment for 3
  months. Gokali and Patasi Devi were convicted under Section
E 323 of IPC and were sentenced to the period already
  undergone by them in custody.

       (e) Challenging the said order of conviction and sentence,
  the accused persons filed appeal being D.B. Criminal Appeal
  No. 247 of 2001 before the High Court. By impugned order
F dated 15.04.2006, the High Court while modifying the order
  dated 18.04.2001 of the Additional Sessions Judge, allowed
  the appeal in respect of Teeja, Jagdish, Gokali and Patasi and
  dismissed the appeal in respect of Gopal (A-1) and Mahesh
  (A-3), the appellants herein, and confirmed their conviction and
G sentence awarded to them.

         3. Heard Mr. Kanhaiya Priyadarshi, learned amicus curiae
    appearing for the appellants and Mr. Ram Naresh Yadav,
    learned counsel appearing for the respondent-State.
H
      GOPAL & ANR. v. STATE OF RAJASTHAN                     391
               [P. SATHASIVAM, J.]
Contentions:                                                        A
      4. After taking us through the entire material relied on by
the prosecution and the defence, learned amicus curiae
appearing for the appellants submitted that it is evident from
the site plan that the members of the complainant's party were
                                                                    8
the aggressors and they came to the field of the accused
persons and attacked them. He also submitted that the
appellants also received injuries at the hands of the
complainant's party and the prosecution had failed to explain
tlie same. Finally, he submitted that since the members of the      C
complainant's party were the aggressors and attacked on the
accused persons causing injuries to Gopal (A-1) and Mahesh
(A-3) (the appellants herein), the accused had a right of private
defence, consequently, they are entitled for acquittal.

     5. On the other hand, learned counsel for the respondent-      D
State supported the findings of the trial Court and the order of
the High Court affirming the conviction and sentence insofar as
the appellants are concerned and, consequently, prayed for
dismissal of this appeal.
                                                                    E
    6. We have carefully considered the rival contentions and
perused the relevant materials.

Discussion :

      7. It is a case of double murder. Admittedly, Rameshwar       F
and Prabhat were died in the incident in question. Though,
initially, the prosecution proceeded against 6 persons and the
trial Court convicted and sentenced all of them, in the appeal
~efore the High Court, except the present appellants (A-1 & A-
3), others were acquitted.                                          G
     8. In support of their claim, the prosecution heavily relied
on the evidence of Bodu Ram (PW-7) and Bhagwan Sahai
(PW-8) - injured eye-witnesses and Sadri Yadav (PW-10) -
son of Prabhat (since deceased). Bodu Ram (PW-7), in his
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    392     SUPREME COURT REPORTS                 [2013] 1 S.C.R.


A evidence has stated that about 4 months back, at about 7.30
  a.m., he along with his brother Shagwan Sahai and uncle -
  Rameshwar was going to work at the well. When they reached
  near the field of Gopal (A-1), they found that Gopal (A-1),
  Jagdish, Mahesh (A-3), Patasi, Teeja, Gokuli were plucking
B round gourd (Tinda) from their field and on seeing them, they
  attacked on them and, thereafter, they went to the police station
  at 10 o' clock.

        9. Shagwan Sahai (PW-8), in his evidence has stated that
C at 7.30 a.m., when he along with Rameshwar (since deceased)
  and Sodu Ram (PW-7) reached near the field of Gopal (A-1),
  they noticed that the accused persons were plucking round
  gourd (Tinda) and on seeing them, they started fighting with
  them. He further explained that Teeja had an axe and other
  accused persons were having lathis. Rameshwar was beaten
D by Mahesh (A-3) with lathi and he fell down. Teeja hit
  Rameshwar with an axe on his forehead and she also gave a
  hit at his armpit and one at his back. He further stated that he
  was hit by Gopal (A-1), Patasi and Jagdish with lathis. Sodu
  Ram (PW-7) was hit by Gokuli on his forehead and Jagdish
E and Mahesh (A-3) hit him at his hand and armpit side
  respectively. He further deposed when Prabhat, who was
  working in the field alongwith his son Sadri (PW-10),
  approached us in order to help, at that time, Gopal (A-1),
  Mahesh (A-3) and Jagdish ran after him and he (Prabhat) ran
F back towards Durga-ki-Dhani and all the three accused after
  chasing him hit him with lathis. Sanshi, Murli, Gopal and mother
  and wife of Sadri had also seen Prabhat (since deceased)
  being beaten by them. Prabhat and Rameswhwar both died in
  the incident. Like Sodu Ram (PW-7), Shagwan Sahai (PW-8)
G also sustained injuries and he categorically stated that on
  seeing that Prabhat was running towards Durga-Ki-Dhani, the
  present appellants and other accused persons chased him and
  hit him with lathis due to which he died. His evidence
  corroborates with the statement of Sodu Ram (PW-7) and
H proves the case of the prosecution.
     GOPAL & ANR. v. STATE OF RAJASTHAN                    393
              [P. SATHASIVAM, J.]
      10. Badri Yadav (PW-10), in his evidence has stated that     A
about 4 months back, at about 7 to 8 a.m., when he was
working in his field behind his house alongwith his father
Prabhat (since deceased) who was sitting there, at that time,
he noticed Bodu Ram (PW-7), Bhagwan Sahai (PW-8) and
Rameshwar (since deceased) going towards the well. He further      B
deposed that when they reached near the field of Gopal (A-1),
who was plucking vegetables in his field along with Mahesh (A-
3), Jagdish, Gokali, Teeja and Patasi, on seeing them coming,
they attacked on the complainant's party. Teeja hit Rameshwar
with an axe on his neck. When Bodu Ram (PW-7) and Bhagwan          C
Sahai (PW-8) tried to save him, Gokali and Mahesh (A-3) fought
with them and Bhagwan Sahai (PW-8) was beaten by Patasi,
Gopal and Jagdish. He further stated that he saw the incident
from a distance of 20 steps. He also stated that when his father
- Prabhat (since deceased) ran towards Durga-Ki-Dhani, Gopal
(A-1), Jagdish and Mahesh (A-3) beat him with lathis. He further   D
explained that due to lathi blows, Rameshwar and Prabhat died.
From his evidence, it is seen that the incident occurred in the
field of Gopal (A-1) and after killing Rameshwar, the accused
persons chased Prabhat and inflicted lathi blows, due to which,
he also di~.                                                       E

       11. Dr. Shiv Kumar Tanwar, who did post mortem, was
examined as PW-25. He also explained that the death of
Rameshwar and Prabhat was due to the injuries inflicted with
lath is.                                                     F

     12. The materials placed and relied on by the prosecution
show that Rameshwar (since deceased), Bodu Ram (PW-7)
and Bhagwan Sahai (PW-8) had gone to the field of the
appellants and there was a fight between both the groups. It is
also clear that the appellants fought to repel the attack and in G
the course of incident, both sides sustained injuries, as a result
of which, Rameshwar died. In such circumstances, it would be
possible for this Court to accept the claim of the appellants that
since they were defending themselves, they had a right of
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    394       SUPREME COURT REPORTS                  [2013] 1 S.C.R.


A   private defence. In fact, the High Court has accepted the above
    stand.

         13. Regarding the plea of private defence, it is useful to
    refer a decision of this Court in V. Subramani & Anr. Vs. State
B   of T.N. (2005) 10 SCC 358. The following principles and
    conclusion are relevant:

           "11. 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
c         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
D         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
E         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
F         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
G         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
H
 GOPAL & ANR. v. STATE OF RAJASTHAN                       395
          [P. SATHASIVAM, J.]
of the right of priv~te defence is not necessarily required A
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. B
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. c
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 v.
Delhi Admn. (1968) 2 SCR 455, State of Gujarat v. Bai
                                                                  0
Fatima,0975) 2 SCC 7, State of U.P. v. Mohd. Musheer
Khan, (1977) 3 SCC 562, and Mohinder Pal Jolly v. State
of Punjab,(1979) 3 SCC 30.) 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 E
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.,(1979) 2 SCC 648 runs as follows: (SCC p. 654,
para 9)                                                           F

      "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                G
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 prosecution
witnesses or by adducing defence evidence."                      H
    396       SUPREME COURT REPORTS                 [2013] 1 S.C.R.


A         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."

  Based on the above principles, in view of the discussion of the
8
  prosecution witnesses, viz., PWs 7, 8 and 10 coupled with the
  fact that the incident occurred in the field of the appellants, who
  also sustained injuries which is evident from the evidence of
  the doctor, who examined the injuries of Gopal (A-1) and
  Mahesh (A-3)-appellants herein, the stand of the appellants, as
C rightly argued by learned amicus curiae, is to be accepted.
  However, as per the prosecution story, not only Rameshwar but
  in the same incident Prabhat also died due to lathi blows
  inflicted by the appellants herein.

D       14. The only moot question for consideration is whether
  the right of private defence is still available to the appellants
  when they chased Prabhat near Durga-ki-Dhani and inflicted
  lathi blows on him? We have already noted the evidence of
  PWs 7, 8 and 10 which clearly established that Prabhat (since
E deceased) was not present at the place where Rameshwar was
  assaulted. It is also seen that after inflicting injuries on the
  person of Rameshwar, the appellants ran towards Prabhat, who
  was standing 10 steps away from the place of incident. It is
  further seen from their evidence that after seeing the incident
F relating to the death of Rameshwar, Prabhat started running
  towards Durga-ki-Dhani and he was chased by the accused
  persons and they inflicted lathi blows on his person. In such a
  situation, we are of the view that the appellants have no right
  to invoke the right of self defence by chasing Prabhat and
G causing fatal injuries on him. In other words, the reasonable
  apprehension has disappeared when they noticed that Prabhat
  was running away from the scene in order to escape, in such
  circumstances though the appellants were entitled to the plea
  of private defence insofar as the death of Ramehwar is
  concerned, they are not justified in availing the same for the
H
        GOPAL & ANR. v. STATE OF RAJASTHAN                       397
                 [P. SATHASIVAM, J.]
 cause of death of Prabhat. On the other hand, they exceeded            A
 their limit and the materials placed by the prosecution clearly
 show that they chased Prabhat at some distance near Durga-
 Ki-Dhani, pushed him down and inflicted several blows with
 lathis due to which he died. In such circumstances, the trial
 Court was justified in convicting the appellants under Section         B
 302 read with Section 34 of IPC and sentencing them to suffer
 RI for life. Taking note of all these aspects, we are of the view
 that the High Court was fully justified in confirming the order of
 conviction and sentence insofar as the present appellants and
 dismissing the appeal in respect of them.                              c
     .. 15. In the light of the above disoussion, we find no merit in
  the appeal and the same is accordingly dismissed. We wish
  to record our appreciation for the assistan·ce rendered by Mr.
  Kanhaiya Priyadarshi, learned amicus curiae in putting forth the
· case of the appellants.                                               D

 B.B.B.                                         Ap1:>eal dismissed.