Supreme Court of India
KRISHNA & ANRversusSTATE OF U.P
- Citation
- 2007 INSC 720
- Decided
- 21 June 2007
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
The accused were the aggressors and no right of private defence existed; the appeal was dismissed.
Summary
Krishna, Kaira and Sumera borrowed money from Chunua Chamar and later denied the debt. When the deceased went to lodge a police complaint, the accused assaulted him with lathis, causing his death. The trial court convicted them of murder, attempt to murder and assault under Sections 302, 307 and 323 IPC, and the High Court rejected their plea of private defence, holding they were the aggressors. On appeal, the Supreme Court examined the scope of Section 96 IPC, the burden of proof for a private‑defence claim and the commencement and termination of that right. It reiterated that the accused must show, on a pre‑ponderance of probabilities, that a reasonable apprehension of danger existed and that the force used was necessary, and that the right ceases when the threat disappears. Finding that the accused initiated the attack and the deceased was not a threat, the Court held that the plea of private defence was untenable and dismissed the appeal.
Issues considered
- The applicability of the right of private defence under Section 96 IPC to the accused.
- The burden of proof and standard of proof required to establish a private‑defence plea.
- When the right of private defence commences and terminates under Sections 102 and 105 IPC.
- Whether the facts establish the accused as aggressors, thereby negating any claim of private defence.
Legislation cited
- Indian Evidence Act, 1872s. 105
- Indian Penal Code, 1860s. 100, s. 101, s. 102, s. 103, s. 104, s. 105, s. 106, s. 302, s. 307, s. 323, s. 34, s. 96, s. 97, s. 98, s. 99
Subjects
private defenceright of self-defenceburden of proofpreponderance of probabilitiesIPC Section 96murderaggressorcriminal law
Judgment
. " KRISHNA & ANR. A
v.
STATEOFU.P.
JUNE 21. 2007
[DR. ARIJITPASAYAT ANDO. K. JAIN, JJ.] B
Penal Code, I 860:
Section 96-Right if private defence-Nature, scope and ambit of-
Plea, when can be raised and mode ofproof-Commencement and termination c
of right of private defence--Accused borrowed money from the deceased and
not only effused to return the money but also denied having borrowed any
money from the deceased-When the deceased proceeded to loge a complaint,
the accused assaulted him first as a result of which the deceased died on the
spot-Trial Court convicted the accused under Ss. 302, 307 and 323 rlw S. D
34-High Court negatived the plea of exercise of private defence raised by
the accused-Correctness of-Held: An accused taking the plea of the right
ofprivate defence is not necessarily required to call evidence; he can establish
his plea by reference to circumstances transpiring from the prosecution
ev.idence itself-The accused need not prove the existence of the right of
private defence beyond a reasonable doubt-It is enough for him to show, E
as in a civil case, that the preponderance of probabilities is in favour of his
plea-Non-explanation of the injuries sustained by the pccused is a very
important circumstance-But, mere non-explanation of the irifuries by the
prosecution may not affect the prosecution case in all cases-A plea of right
ofprivate defence cannot be based on surmises and speculatio~The burden
F
~ is on the accused to show that had a right ofprivate defence which extended
to causing of death-The right of private defence lasts so long as the
I
-i reasonable apprehension of the danger to the body continues-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-The right of private defence is essentially a defensive G
right-It is a right of defence, not of retribution, expected to repel unlawful
aggression and not as a retaliatory measure-On facts, since the accused
......... --< were the aggressors and attacked the deceased first as a result of which the
deceased died. right of private defence is not available.
1157 H
1158 SUPREME COURT REPORTS (2007) 7 S.C.R.
A According to the prosecution, the appellants-accused borrowed some y-
money from the deceased and two days prior to the occurrence, when the
deceased demanded his money from the appellants, the appellants not only
refused to return the money but also denied having borrowed any money from
the deceased.
B On the fateful day, when the deceased proceeded to the police station to
lodge a complaint, the accused persons assaulted the deceased with a lathi as
a result of which the deceased fell down and died on the spot. The trial court
convicted the accused persons under Sections 302, 307 and 323 read with
Section 34 of the Penal Code, 1860 and sentenced them to undergo
C imprisonment for life.
Before the High Court a plea was taken that the accused had exercised
the right of private defence; therefore, the conviction as done was not
maintainable. The High Court did not accept this plea and observed that since
the accused persons were the aggressors and in fact attacked the deceased ,.
D first, the question of exercise of right of private defence did not arise. Hence
the appeal.
. Dismissing the appeal, the Court
HELD: 1.1. Section 96 of the Penal Code, 1860 does not define the
E expression 'right of private defence'. It merely indicates that nothing is an
offence which is done in the exercise of such a right. Whether in a partic~lar
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
F consider all the surrounding circumstances. It is not necessary for the
accused to plead in so many words that he acted in self-defence. If the
circumstances show that the right of private defence was legitimately
exercised, it is open to the Court to consider such a plea. In a given case, the
Court can consider it even if the accused has not taken it, if the same is
G available to be considered from the material on record. !Para 71 [1164-D, E, F)
1.2. 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
H prosecution evidence and not a question of the accused discharging any burden.
KRISHNA v.STATEOFU.P. 1159
Where the right of private defence is pleaded, the defence must be a reasonable A
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. tpara 71 [1164-G; 1165-A, B, q
Munshi Ram 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, relied on.
c
1.3. The accused need not prove the existence of the right of private
defence beyond a 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.
fPara 81f1165-EJ
{•
Salim Zia v. State of U.P., AIR (1979) SC 391, relied on. D
2.1. The number of injuries is not always a safe criterion for
determining who the aggressor was. It cannot be stated as a universal rule
that whenever the injuries are on the body of the accused persons, a
presumption must necessarily be raised that the accused persons had caused
injuries in exercise of the right of private defence. The defence has to further E
establish that the injuries so caused on the accused probabilise the version
of the right of private defence. Non-explanation of the injuries sustained by
the accused at about the time of occurrence or in the course of altercation is
a very important circumstances. But mere non-explanation of the injuries by
the prosecution may not affect the prosecution case in all cases. This principle F
applies to cases where the injuries sustained by the accused are minor and
superficial or where the evidence is so clear and cogent, so independent and
disinterested, so probable, consistent and credit-worthy, that it far outweighs
the effect of the omission on the part of the prosecution to explain the injuries.
[Para 9) f1165-G; 1166-A, BJ G
Lakshmi Singh v. State of Bihar, AIR (1976) SC 2263, relied on.
2.2. A plea of right of private defence cannot be based on surmises and
speculation. While considering whether the right of private defence is available
to an accused, it is not relevant whether he may have a chance to inflict severe
and mortal injury on the aggressor. In order to find out whether the right of H
1160 SUPREME COURT REPORTS (2007) 7 S.C.R.
A private defence is available to an accused, the entire incident must be examined )f -
with care and viewed in its proper setting. [Para 9111166-8, CJ
2.3. To claim a right of private defence extending to voluntarily 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
B be caused to him. The burden is on the accused to show that he had a right of
private defence which extended to causing the death. Sections 100 and tot
IPC define the limit and extent of right of private defence.
(Para 91 [tt66-E, F)
3. The right of private defence of body and properly commences as soon
C 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.
[Para 101 (t 166-F, GI
D
Jai Dev v. State of Punjab, AIR (1963) SC 612, relied on.
4. In order to find out whether the right of private defence is available
or not, the injuries received by the accused, the imminence of threat to his
safely, the injuries caused by the accused and the circumstances whether the
E accused had time to have recourse to public authorities are all relevant factors:·
to be considered. [Para It) [lt67-A)
Biran Singh v. State of Bihar, AIR (1975) SC 87, Wasson Singh v. State
ofPunjab, (1996) l SCC 458 and Sekar@Raja Sekharan v. State represented
by Inspector of Police, T. N, (2002) 8 SCC 354, relied on.
F
5. 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 them.
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 I
..
G the threat becomes so imminent. Such situatim1s 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
'1
of the moment on the spot and keeping in view normal human reaction and
H conduct, where self-preservation is the paramount consideration. But, if the
t
--J
KRISHNA v. ST ATE OF U.P. 1161
fact situation shows that in the guise of self-preservation, what really has A
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 a
finding of fact. (Para 121 (1167-C, D, E, Fl
B
Butta Singh v. State of Punjab, AIR (1991) SC 1316, relied on.
6.1. The right of self-defence is a very valuable right serving a social
purpose and should not be construed narrowly. [Para 13) [I 167-Fl
Vidhya Singh v. State of MP., AIR (1971) SC 1857, relied on. C
6.2. Situations have to be judged from the subjective point of view of the
accused concerned in the surrounding excitement and confusion of the
moment, confronted with a situation of peril and not by any microscopic and
pedantic scrutiny. In adjudging the question as to whether more force than
was necessary was used in the prevailing circumstances on the spot, it would D
be inappropriate 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 him
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 E
ordinary times or under normal circumstances. (Para 13) (1167-G; 1168-AI
Russell on Crime, 11th Edition, Volume I, p. 49, referred to.
7. 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 F
availed of 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 a retaitory measure. While providing for exercise of
the right, care has been taken in IPC not to provide and not to devise a
mechanism whereby an attack may be a pretence for killing. A right to defend G
does not include a right to launch an offensive, particularly when the need to
defend no longer survived. (Para 15) (1168-D, El
8. In view of the factual findings recorded by the Courts below there is
no reason to differ from the conclusion that the appellants were the aggressors
and attacked the deceased first. The prosecution version is that the death of H
1162 SUPREME COURT REPORTS [2007] 7 S.C.R.
A the deceased took place in course of the said incident. The question of
exercising any right-of private defence as claimed by the appellants is without t
any substance. !Para 16111168-E, Fl !
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 835 of
2007.
B
From the Judgment & Order dated of the 11.03.2003 of the High Court
of Judicature at Allahabad in CRLA No. 874 of 1981.
Rakesh Garg (A.C.) for the Appellants.
C Ratnakar Dash, Sr. Adv., Vikrant Yadav, S.M. Rao and Javed Mahmud
Rao for the Respondent.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. I. Leave granted.
D
2. Challenge in this appeal is to the judgment of a Division Bench of
the Allahabad High Court dismissing the appeal filed by the appellants. The
trial Court i.e. learned IInd Additional Judge, Banda by his judgment dated
25.3.1981 found the appellant Krishna guilty of offence punishable under
Section 302 of the Indian Penal Code, 1860 (in short the 'IPC') and Section
E 307 and sentenced him to undergo RI for life and seven years respectively
for the aforesaid offences. Though he was found guilty of offence punishable
under Section 323 IPC read with Section 34 IPC no separate sentence was
awarded to him. Accused Sumera who was convicted for offences punishable
under Section 302, 307, 323 read with Section 34 IPC has died. Appellant Kaira
F was similarly convicted. Sentence of imprisonment for life, three years and six
months were respectively imposed for the above said offences. All the three
accused persons preferred an appeal but since the appellant Sumera died
during the pendency of the appeal, appeal was held to have abated so far as
he is concerned.
G 3. Background facts as projected by prosecution in a nutshell are as
follows:
Appellants Krishna and Kaira are real brothers and are the sons of
Sumera. Ram Manohar (PW-1) complainant and Chunua Chamar (hereinafter
referred to as the 'deceased') were real brothers. Both the parties are residents
H of the same village Piprenda, P.S. Tindwari, District Banda and are neighbours.
-
KRISHNA v. STATE OF U.P. [PASA YAT. J.J 1163
-· Appellant Kaira borrowed Rs.350/- from deceased about 5 month prior to the
occurrence. i.e. 8th July. 1980. about 7.15 a.m. Two days prior to the occurrence
deceased demanded his money from Kaira. who not only refused to return the
A
money but also denied to have borrowed any money from the deceased. On
the following day again deceased demanded his money from Kaira and being
enraged by this, accused Sumera. Krishna and Kaira quarrelled with deceased B
and Ram Manohar and chased to beat them. The deceased and Ram Manohar
somehow managed to escape themselves by running away. On the fateful day
i.e. 8.7.1980, deceased alongwith Ram Manohar (PW-I) in the morning after
attending the call of nature went to Shripal Kori for seeking his advice as what
should be done in the matter. Shripal advised him not to fight, but to lodge
a complaint with the police. From the house of Shripal, deceased and Ram C
Manohar came to their house and without taking breakfast both of them
• proceeded to police outpost Chilla. Smt. Ram Pyari (PW-3), wife of deceased
also followed them. It was about 7 .15 a.m. when deceased and Ram Manohar
reached near the field of Chunua Kanchi, which was in the west of rasta,
accused Krishna armed with "Barchi", Sumera and Kaira armed with lathis
came there from the eastern side. Accused persons started abusing deceased D
and his brother Ram Manohar. Deceased and Ram Manohar retaliated by
abusing them. Shiv Baran Singh (PW-2) reached there. Sumera gave lathi
blow to deceased. When Shiv Baran Singh (PW-2) tried to intervene, appellant-
Kaira gave lathi blow which hit him causing injury to his hand. When Ram
Manohar (PW-I) tried to save and intervene Krishna gave Barchhi blow E
causing injury to him. Appellant-Krishna exhorted to eliminate Chunua.
Thereupon Sumera gave lathi blow to deceased and Kaira also gave lathi
blow. Krishna gave barchhi blow causing injury to deceased who fell down
and died then and there in the field of Chunua Kanchi. On the hue and cry
Surajpal, Arjun and many other villagers collected there. These persons
chased the accused who run away towards the west. Leaving Smt. Rampyari F
near the dead body, after getting report drafted from Dasharath, Ram Manohar
(P. W. I) accompanied by Shiv Baran Singh (PW-2) injured and, other village
persons, proceeded to the police out post Chilla, P. S. Tindwari, District
Banda which was about 18 or 20 kms. from the village Piprendha. There Ram
Manohar (PW-I) handed-over the written report. On the basis of written G
report a case crime no. 123 of I980 was registered at 8.45 am. on 8.7.1980,
under Sections 302, 307, 504 IPC against all the three accused i.e. Sumera,
Krishna and Kaira. Om Shankar Shukla (PW-6), 1.0. of the case who was
lncharge of the police out post, took up investigation, recorded the statements
of injured Ram Manohar (P. W.I) and injured Shiv Baran Singh (PW-2) and sent
them for medical examination to district hospital Banda. H
..
1164 SUPREME COURT REPORTS (2007] 7 S.C.R.
A 4. After the investigation was completed. charge sheet was filed. Charges y-
were framed and the accused persons faced trial. Placing reliance on the
evidence of the witnesses. the trial Court recorded the conviction and
imposed sentence. Before the High Court a plea was taken that the acc11sed
had exercised the right of private defence; therefore, the conviction as done ·
B was not maintainable. High Court did not accept this plea and observed that
since the accused persons were aggressors and in fact attacked the deceased
first the question of exercise of right of private defence did not arise.
Accordingly, the appeal was dismissed.
5. In support of the appeal, learned counsel for the appellants submitted
C that the High Court has erroneously held that the right of private defence was
not exercised by the appellants.
6. Learned counsel for the State on the other hand submitted that the
courts below have categorically found that the appellants were aggressors
and attacked the deceased first.
D
7. 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
E in a particular set of circumstances, a person legitimately acted in the exercise
of the right of private defence is a question of fact to be determined on the
facts and circumstances of each case. No test in the abstract for determining
such a question can be laid down. In determining this question of fact, the
Court must consider all the surrounding circumstances. It is not necessary
F 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 I05 of
the Indian Evidence Act, 1872 (in short 'the Evidence Act'), the burden of
G 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 recotd
either by himself adducing positive evidence or by eliciting necessary facts
from the witnesses examined for the prosecution. An accused taking the plea
H
KRISHNA v. STATEOFU.P. (PASA YAT.J.) 1165
,-- \
of the right of private defence is not necessarily required to call evidence: he A
can establish his plea by reference to circumstances transpiring from the
prosecution evidence itself. The question in such a case would be a question
of assessing the true effect of the prosecution evidence, and not a question
of the accused discharging any burden. Where the right of private defence
is pleaded, the defence must be a reasonable and probable version satisfying B
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-
'efence is on the accused and the burden stands discharged by showing
~ponder-.., 'e of probabilities in favour of that plea on the basis of the
material on n::cord. (See Munshi Ram and Ors. v. Delhi Administration, AIR C
(1968) SC 702, State of Gujarat v. Bai Fatima, AIR (1975) SC 1478, State 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 IO 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 D
would be the consequence of the assault. The often quoted observation of
this Court in Salim Zia v. State of UP., AIR (l 979) SC 391, runs as follows:
"It is true that the burden on an accused person to establish the
plea of self-defence is not as onerous as the one which lies on the E
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." F
8. The accused need not prove the existence of the right of private
defence beyond reasonable doubt. It is enough for him to show as in a civil
case that the preponderance of probabilities is in favour of his plea.
9. The number of injuries is not always a safe criterion for determining G
who the aggressor was. It cannot be stated as a universal rule that whenever
the injuries are on the body of the accused persons, a presumption must
necessarily be raised !hat the accused persons had caused injuries in exercise
of the right of private defence. The defence has to further establish that the
injuries so caused on the accused probabilise the version of the right of
H
\
1166 SUPREME COURT REPORTS (2007) 7 S.C.R.
A private defence. Non-explanation of the injuries sustained by the accused at
about the time of occurrence _or in the course of altercation is a very important
circumstance. But mere non-explanation of the injuries by the prosecution
may not affect the prosecution case in all cases. This principle applies to
cases where the injuries sustained by the accused are minor and superficial
B or where the evidence is so clear and cogent, so independent and disinterested,
so probable, consistent and credit-worthy, that it far outweighs the effect of
the omission on the part of the prosecution to explain the injuries. [See
Lakshfr!i 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,
C it is not relevant whether he may have a chance to inflict severe and mortal
injury on ~he 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 ofright comprises the body or property (i) of the
person exercising the right; or (ii) of any other person; and the right may be
D 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 I 00
E 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 l 00 and l 0 l, IPC define the limit and extent of right of private
F defence.
10. Sections 102 and 105, IPC deal with commencement and continuance
of the right of private defence of body and property respectively. The right
commences, as soon as a reasonable apprehension of danger to the body
G arises from an attempt, or threat, or 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,
H there can be no occasion to exercise the right of private defence.
-'
KRISHNA v. STATE OF U.P. IPASAYAT.J.) 1167
-- :.., 11. In order to find whether right of private defence is available or not. A
the injuries received by the accused, the imminence of threat to his safety,
the injuries caused by the accused and the circumstances whether the accused
had time to have recourse to public authorities are all relevant factors to be
considered. Similar view was expressed by this Court in Biran Singh v. State
of Bihar, AIR (1975) SC 87. (See: Wassan Singh v. State of Punjab [1996) I
SCC 458, and Sekar alias Raja Sekharan v. State represented by Inspector B
of Police, TN., [2002) 8 SCC 354).
12. As noted in Butta Singh v. The State of Punjab, AIR (l 991) 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 disann the assailants who were anned with weapons.
c
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 t<, repel the force in
self-defence and the right of private-defence commences, as soon as the D
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
E
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 F
above, a finding of fact.
13. 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
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 G
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 H
\_
1168 SUPREME COURT REPORTS (2007) 7 S.C.R.
A 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.
B 14. In the illuminating words of Russel (Russel on Crime, 11th Edition
Volume I at page 49):
" .... a man is justified in resisting by force anyone who manifestly
intends and endeavours by violence or surprise to commit a known
felony against either his person, habitation or property. In these
c 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."
D 15. 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
E 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.
16. In view of the factual findings recorded by the courts below we find
F no reason to differ from the conclusion that the appellants were the aggressors
and attacked the deceased first. The prosecution versioi:i is that death of the
deceased took place in course of the said incident. The question of exercising
any right of private defence as claimed by the appellants is without any
substance.
G 17. The appeal is sans merit, deserves dismissal which we direct. We
record our appreciation for the able assistance rendered by Mr. Rakesh Garg,
learned Amicus Curiae.
V.S.S. Appeal dismissed.
H
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