Supreme Court of India
NAVEEN CHANDRAversusSTATE OF UTTRANCHAL
- Citation
- 2006 INSC 916
- Decided
- 27 November 2006
- Disposal
- Case Partly allowed
- Bench
- ARIJIT PASAYAT
Holding
The Court held that Exception 4 to Section 300 IPC does not apply and the accused exceeded the right of private defence, warranting conviction under Section 304 Part I IPC.
Summary
Naveen Chandra and his parents were convicted for the murder of three members of a rival family. The appellant claimed that the killings occurred in a sudden quarrel, were provoked, and were in self‑defence. The Supreme Court examined whether Exception 4 to Section 300 IPC (sudden fight) applied and whether the right of private defence under Sections 96‑106 IPC was valid. It held that the accused had taken undue advantage, used excessive force and continued the attack after the threat ceased, so Exception 4 was inapplicable and the right of private defence was exceeded. Consequently the offence was deemed to fall under Section 304 Part I, not murder, and the death sentence was reduced to ten years imprisonment, with the parents acquitted. The appeal was partly allowed.
Issues considered
- The applicability of Exception 4 to Section 300 IPC to the facts.
- Whether the accused was justified in invoking the right of private defence under Sections 96‑106 IPC.
- Whether the conviction should be under Section 302 IPC (murder) or Section 304 Part I IPC (culpable homicide not amounting to murder).
- The appropriate quantum of sentence, including the propriety of the death penalty.
Legislation cited
- Code of Criminal Procedure, 1973s. 366
- Indian Evidence Act, 1872s. 105
- Indian Penal Code, 1860s. 100, s. 101, s. 102, s. 105, s. 300, s. 302, s. 304, s. 34, s. 96, s. 97, s. 98, s. 99
Subjects
MurderPrivate defenceException 4 to Section 300 IPCSection 304 Part I IPCSudden quarrelGrave and sudden provocationBurden of proofEvidence ActDeath sentenceConviction alteration
Judgment
.....
NAVEEN CHANDRA
A
v.
STATEOFUlTRANCHAL
NOVEMBER 27, 2006
B [ARIJIT PASA YAT AND LOKESHWAR SINGH PANTA, JJ.]
Penal Code, 1860; Ss. 34, Exception I and 4 to Section 300 and
Section 304 Part I:
C Murder-Accused and deceased are relatives-Rivarly between them-
Provocation-Deceased injured and later succumbed to injuries-Right to
self defence and Exception 4 to Section 300-Applicability of-Trial Court
found accused persons guilty of committing offence of murder and convicted
them uls. 302 rlw s. 34 !PC and awarded death sentence-High Court
D altering death sentence into life imprisonment as against accused-appellant,
acquitting other two accused persons-On appeal, Held: A quarrel sudden
or not, must necessarily depend upon proved facts of each case-For claiming
application of Exception 4 to Section 300 besides showing that there was
sudden quarrel and no pre-meditation-It must further be shown that the
offender has not taken undue advantage or acted in cruel or unusual manner-
E Applying the legal principles to the facts and circumstances of the case,
inevitable conclusion is that Exception 4 to Section 300 does not apply--
Code of Criminal Procedure, 1973-s. 366.
Penal Code 1860-ss. 96 to 105-Right to private defence-
App/icabi/ity of-Held: Accused need not prove the existence of the right of
F private defence beyond reasonable doubt-He is required to show that
preponderance of probabilities in favour of such plea-It should not be
based on surmise and speculations-Entire incident must be examined with
care and viewed in its proper prospective-It is exactly a defensive right
available, only when the circumstances clearly justify it-it should not be
G allowed to be availed as a pretext for a vindictive, aggressive or retributive
purpose-A right to defend does not include a right to launch an offensive
when need to defend no longer survive-Applying the legal principles to the
facts and circumstances of the case, inevitable conclusion is that the accused
persons had exceeded the right of private defense by continuing the attacks
H 668
... NA VEEN CHANDRA v. STATE OF UTTRANCHAL 669
even after the threat to life had ceased-Hence provisions of Section 304 A
Part-I attracted-Conviction is altered accordingly from death sentence to
ten years imprisonment-Directions issued-Evidence Act, 1872-s. 105.
Accused-appellant was convicted for offence punishable under Section
302 of the Indian Penal Code, 1860 read with Section 34 of the Act for
committing murder of his relatives, 3 persons of a family. Trial Court awarded B
death sentence to accused-appellant and life imprisonment to other two accused
persons/parents of accused. A reference was made to High Court for
confirmation of the award of death sentence in terms of Section 366 of the
Code of Criminal Procedure, 1973. The High Court directed acquittal of
parents of accused and converted death sentence awarded to accused into life
imprisonment. Hence the present appeal. C
. Respondent-State submitted that the High Court was rather liberal in
altering the death sentence to life imprisonment and had rightly turned down
the plea of grave and sudden provocation or the occurrence taking place in
course of sudden quarrel or in exercise of right of private defence.
D
Partly allowing the appeal, the Court
HELD:l.1. 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 E
of premeditation. But, while in the case of Exception 1 there is total deprivation
of self-control, in case of Exception 4, there is only 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 F
4 deals with cases in which notwithstanding 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 G
be placed on one side. For if it were so, the Exception more appropriately
applicable would be Exception I. (676-B-C-D]
1.2. It is not possible to enunciate any general rule as to what shall be
H
670 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.
A 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 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
B 'unfair advantage'. (676-G-H)
1.3. Where the offender takes undue advantage or bas 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
C advantage has been taken. Considering the background facts in the backdrop
of legal principles as set out in the decided cases of Kikar Singh v. State of
Rajasthan and Babula/ Bhagwan Khandare & Anr. v. State of Maharashtra,
the inevitable conclusion in the instant case is that Exception 4 to Section
300 IPC does not apply. (677..A-B; D)
D Kikar Singh v. State of Rajasthan, AIR (1993) SC 2426 and Babula/
Bhagwan Khandare and Anr. v. State of Maharashtra, (20051 10 SCC 404,
relied on.
. 2.1. In terms of Section 105 of the Indian Evidence Act, 1872 the burden
E of proof is on the accused, who sets up the plea of self-defence, and, in the
absence of proof, it is not possible for the Court to presume the truth of the
plea of self-defence. The Court shall presume the absence of such
circumstances. (677-G-Hl
2.2. Borden of establishing the plea of self-defence is on the accused
F and the burden stands discharged by showing preponderance of probabilities
in favour of that plea on the basis of the material on record. Sections 100 to.
101 define the extent of the right of private defence of body. If a person has a
right of private defence of body under Section 97, that right extends under
Section 100 to causing death if there is reasonable apprehension that death
or grievous hurt would be the consequence of the assault. (678-C-D-E)
G
.. Munshi Ram and Ors. v. Delhi Administration AIR (1968) SC 702, State
ofGujarat 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 Pun.jab, AIR
(1979) SC 577 and Salim Zia v. State of UP., AIR (1979) SC 391, relied on.
H
NAVEEN CHANDRA v. STATE OF UTTRANCHAL 671
2.3. Number of injuries is not always a safe criterion for determining A
who the aggressor was. It cannot be stated as a universal rule that whenever
the injuries are on the body of the accused persons, a presumption must
necessarily be raised that the accused persons had caused injuries in exercise
of the right of private defence. The defence has to further establish that the
injuries so caused on the accused probabilise the version of the right of private B
defence. Non-explanation of the injuries sustained by the accused at about
the time of occurrence or in the course of altercation is a very important
circumstance. But mere non-explanation of the injuries by the prosecution
may not affect the prosecution case in all cases. This principle applies to cases
where the injuries sustained by the accused are minor and superficial or
where the evidence is so clear and cogent, so independent and disinterested, C
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.
1678-G-H; 679-A-B-C]
Lakshmi Singh v. State of Bihar, AIR (1976) SC 2263, relied on.
2.4. A plea of right of private defence cannot be based on surmises and
D
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 entire incident must be examined with
care and viewed in its proper setting. To claim a right of private defence E
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. [679-C-D-E-F]
F
2.5. Right of private defence of body and property commences, as soon
as a reasonable apprehension of danger to the body arises from an attempt,
or threat, to commit the offence, although the offence may not have been
committed but not until there is that reasonable apprehension. The right lasts
so long as the reasonable apprehension of the danger to the body continues. G
1679-G-H; 680-A)
Jai Dev. v. State of Punjab, AIR (1963) SC 612, referred to.
2.6. 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 H
..
672 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.
A had time to have recourse to public authorities are all relevant factors to be
considered. (680-B-C)
Biran Singh v. State ofBihar, AIR (1975) SC 87; Wassan Singh v. State
ofPunjab, (1996] 1 SCC 458; Sekar alias Raja Sekharan v. State represented
by Inspector of Police, T.N., (2002] 8 SCC 354, relied on.
B
2. 7. Right of self-defence is a very valuable right, serving a social
purpose and should not be construed narrowly. Situations have to be judged
from the subjective point o(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
c as to whether more force than was necessary was used in the prevailing
circumstances on the spot it would be inappropriate, as held by this Court, to
adopt tests by detached objectivity which would be so natural in a Court room,
or that which would seem absolute!y necessary to a perfectly cool bystander.
The person facing a reasonable apprehension of threat to himself cannot be
D 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. (680-G-H; 681-A-BJ
Vidhya Singh v. State ofMP., AIR (1971) SC 1857, relied on.
E Russel on Crime, I Ith Edition Volume I, referred to.
2.8. 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.
F It is a right of defence, not of retribution, expected to repel unlawful
aggression and not as retaliatory measure. While providing for exercise of
the right, care has been taken in IPC not to provide and has not devised a
mechanism whereby an attack may be a pretence for killing. A right to defend
does not include a right to launch an offensive, particularly when the need to
G defend no longer survived. (681-E-F]
V. Subramani and Anr. v. The State of Tamil Nadu, (2005) 10 SCC 358,
relied on.
3. Considering the background facts in the present case when tested in
the backdrop of the legal principles, the inevitable conclusion is that though
H
NA VEEN CHANDRA v. STATE OF UTTRANCHAL [PASAYAT, J.] 673
the accused person was exercising right of private defence, but had exceeded A
the same by continuing the attacks after the threat to live had ceased.
Therefore, this appears to be a case where Section 304 Part I would be the
applicable provision. The conviction is altered accordingly. Ten years custodial
sentence would meet the ends of justice. [681-G-H; 682-A)
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1224 of B
2006.
From the Judgment and Order dated 16-8-2004 of the High Court of
Uttaranchal at Nainital in Criminal Appeal No. 336 of2003.
B.S. Banthia for the Appellant. c
Ms. Rachna Srivastava and Jatinder Kumar Bhatia for the Respondent.
The Judgment of the Court was delivered by
ARIJIT PASAYAT, J. Leave granted.
D
· Challenge in this appeal is to the judgment rendered by a Division
Bench of the Uttaranchal High Court dismissing the appeal filed by the
appellant while allowing the appeals filed by two others i.e. parents of the
appellant. Appellant was convicted for offence punishable under Section 302
of the Indian Penal Code, 1860, (in short the 'IPC') read with Section 34 of E
the IPC. While the appellant was awarded death sentence, the other two were
sentenced to undergo imprisonment for life. All the three accused persons
' were convicted for offence punishable under Section 302 read with Section
I 34 IPC. In view of the award of death sentence a reference was made to the
High Court for confirmation in terms of Section 366 of the Code of Criminal
Procedure, 1973 (in short the 'Code'). By the impugned judgment the High F
Court directed acquittal of accused Smt. Karola Devi and accused Sh. Nanda
Ballabh and the death sentence was converted to life imprisonment and the
appeal filed by the present appellant was partly allowed.
The background facts in a nutshell are as follows:
G
All the three accused came to be tried by the Sessions Judge, Bageshwar
in Session Trial No. 30 of 2001, wherein all the three accused were charged
for an offence under Section 302 read with Section 34 IPC on the allegation
that on 2.6.2001, the three accused persons in furtherance of their common
·' intention, had committed murder of Ganesh Dutt s/o Prem Ballabh, Smt. Janki H
674 SUPREME COURT REPORTS [2006) .SUPP. 9 S.C.R.
_._ Devi w/o Ganesh Dutt and Sandeep s/o Ganesh Dutt (each of them hereinafter
described as deceased by respective name). While the accused persons were
the husband, wife and son, the deceased were also the husband, wife and
son. Interestingly, original accused No. l Nanda Ballabh is the real brother
of the deceased Ganesh Dutt. Relationships between the two brothers, namely,
original accused No. I Nanda Ballabh and the deceased Ganesh Dutta were
g strained on account of family matters. They were all residents of the Village
Baira Majhara, Tehsil Kapkot, District Bageshwar and their houses are almost
adjoining to each other. On the fateful day i.e. on 2.6.200I, there was an
altercation between Nanda Ballabh & his family members on one hand and
deceased Ganesh Dutt and his family members on the other during the day
' time in which deceased Ganesh Dutta received an injury to his head. Conciliation
was to be arranged through a panchayat at the instance of original accused
No. I Nanda Ballabh, who had sought the intervention of Bhupal Dutta and
others· on the ground that his brother deceased Ganesh Dutta was
continuously troubling him and continuously hurling abuses. This was at 7.00
a.m. and thereafter, there was an altercation during the day time. Bhupal Dutta,
)
therefore, went along with some others to the house of original accused No. I
Nanda Ballabh where 7 or 8 other persons were already present. This was at
about 5.00 p.m. At the instance of original accused No. I Nanda Ballabh,
Ganesh Dutt was called by Bhupal Dutt, one Bishan Dutt and Govind Ballabh.
They found that Ganesh Dutt already had an injury on his head, yet he came
along with them to the courtyard in between the houses of original accused
No. I Nanda Ballabh and the deceased Ganesh Dutt. On being asked as to
what the dispute between the two brothers was about, deceased Ganesh Dutt
allegedly lost his temper and started abusing the original accused No. I Nanda
Ballabh. Thereafter, the persons, who were there, took him back to his house.
However, deceased Ganesh Dutt, again came back and held the hand of his
sister in law i.e. original accused No.2. After this, there was an altercation
between original accused No. I Nanda Ballabh. In the meantime, original accused
No.3 appellant-Naveen Chandra rushed and injured deceased Ganesh Dutt on
his head by a weapon called "Khukri". Deceased Smt. Janki Devi w/o Ganesh
Dutt, also came there praying to spare deceased Ganesh Dutt, but she was
iJ also attacked by the original accused No.3 appellant-Naveeen Chandra on her
face and head. Though the persons present requested original accused No.
3, appellant-Naveen Chandra to spare the others, he ran up to the house of
deceased Ganesh Dutt, where Ganesh Dutt's son Sandeep Dutt, namely,
Manish Kumar (PW-3) took to his heels while the other son Mukesh hid
himself. Deceased Ganesh Dutt died on the spot while his wife Smt. Janki Devi
II and son Sandeep were seriously injured. The Gram Pradhan was called and
NA VEEN CHANDRA v. STATE OF UTTRANCHAL [PASA YAT, J.) 675
the injured were kept in the Varanda of Ganesh Dutt's house, but they also ;
died during the same night.
A report came to be made of this incident by Pooran Chandra who was
at the relevant time, the Up-pradhan (Vice Chairman) of the Village. This report
was prepared on 2.6.2001 and was handed over, in which it was suggested
that the accused persons had committed the murder of three deceased persons I
on account of the old rivalry. On this, the usual investigation was started after
the case was registered against the accused persons for offence under Section
302 IPC. The Investigation Officer Rahim Ahmed (PW-6) who was the patwari,
has the police powers and he proceeded to the spot and conducted the usual
investigation by conducting Panchnamas as also by inspecting the spot. He (
also sent the dead bodies for post mortem. Eventually, the accused persons
came to be arrested. The Investigating Officer Rahim Ahmed also recorded
the statements of number of witnesses including the eye witnesses and the
charge sheet was filed against the accused persons.
Eight witnesses were examined to further the prosecution version, while I
a<;cused persons who pleaded innocence, examined one witness. Bhopal
Dutta (PW-2) and Manish, the child witness (PW-3) were claimed to be eye-
witnesses. Though Pooran (PW-1) the informant partially resiled from his
statement made during investigation he confirmed having lodged the FIR.
Accused persons pleaded grave and sudden provocation exercise of I
right of private defence and the occurrence having taken place during sudden
quarrel, where deceased persons were the aggressors.
Placing reliance on the evidence adduced, the trial court directed
conviction and imposed sentence as afore-stated. As noted above, challenge
was made before the High Court. The High Court did not accept the stand I
of the appellant that the attack, if any made, was on account of grave and
sudden provocation and/or that it took place in course of sudden quarrel and/
or in exercise of right of private defence, and therefore there was no offence
committed and trial court had erroneously held that Section 302 IPC was
attracted. The High Court did not accep~ plea and confirmed the view expressed (
by the trial court. It however directed acquittal of two of the accu~ed persons.
In support of the appeal, learned counsel for the appellant reiterated the
stand taken by the High Court. Learned counsel for the respondent-State on
the other hand submitted that the High Court was rather liberal in altering the
f
676 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.
A death sentence to life imprisonment and had rightly held that the concept of
grave and sudden provocation or the occurrence taking place in course of
sudden quarrel or in exercise of right of private defence, has been rightly
turned down.
The Fourth Exception of Section 300, IPC covers acts done in a sudden
B 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 priQ.ciple, for in both there is absence
of premeditation. But, while in the case of Exception I there is total deprivation
of self-control, in case of Exception 4, there is only that heat of passion which
C 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 I; but the
injury done is not the direct consequence of that provocation. In fact Exception
4 deals with cases in which notwithstanding 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
D 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. For if it were so, the Exception more
appropriately applicable would be Exception I.
E 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
undue advantage or acted in a cruel oi: unusual manner; and (d) the fight mus~
have been with the person killed. To bring a case within Exception 4 all the
ingredients mentioned in it must be found. It is to be noted that the 'fight'
F 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 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
G 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 further be shown that the
offender has not taken undue advantage or acted in cruel or unusual manner.
H The expression 'undue advantage' as used in the provision means 'unfair
NAVEENCHANDRAv. STATEOFUTTRANCHAL[PASAYAT,J.] 677
advantage'. A
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. In Kikar Singh v. State of Rajasthan, AIR (1993) B
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
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 C
ripped open and internal organs come out. In view of the aforesaid factual
position, Exception 4 to Section 300 1.P.C. has been rightly held to be
inapplicable.
The above position was highlighted in Babula/ Bhagwan Khandare
andAnr. v. State of Maharashtra, [2005] IO SCC 404. D
Considering the background facts in the backdrop of legal principles as
set out above, the inevitable conclusion is that 4th Exception to Section 300
IPC does not apply.
Only other question which needs to be considered is the alleged exercise E
of right of private defence. Section 96, IPC provides that nothing is an offence
which is done in the exercise of the right of private defence. The Section does
not define the expression 'right of private defence'. It merely indicates that
nothing is an offence which is done in the exercise of such right. Whether
in a particular set of circumstances, a person legitimately acted in the exercise
of the right of private defence is a question of fact to be determined on the F
facts and circumstances of each case. No test in the abstract for determining
such a question can be laid down. In determining this question of fact, the
Court must consider all the surrounding circumstances. It is not necessary for
the accused to plead in so many words that he acted in self-defence. If the
circumstances show that the right of private defence was legitimately exercised, G
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 I 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
H
678 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.
A proof, it is not possible for the Court to presume the truth of the plea of self-
defence. The Court shall presume the absence of such circumstances. It is for
the accused to place necessary material on record either by himself adducing
positive evidence or by eliciting necessary facts from the witnesses examined
for the prosecution. An accused taking the plea of the right of private defence
is not necessarily required to call evidence; he can establish his plea by
B reference to circumstances transpiring from the prosecution evidence itself.
The question in such a case would be a question of assessing the true effect
of the prosecution evidence, and not a question of the accused discharging
any burden. Where the right of private defence is pleaded, the defence must
be a reasonable and probable version satisfying the Court that the hann
C caused by the accused was necessary for either warding off the attack or for
forestalling the further reasonable apprehension from the side of the accused.
The burden of establishing the plea of self-defence is on the accused and the
burden stands discharged by showing preponderance of probabilities in favour .
of that plea on the basis of the material on record. (See Munshi Ram and Ors.
v. Delhi Administration, AIR (1968) SC 702, State of Gujarat v. Bai Fatima,
D AIR (1975) SC 1478, State of UP. v. Mohd. Musheer Khan, AIR (1977) SC
2226, and Mohinder Pal Jolly v. State ofPunjab, AIR (1979) SC 577. Sections
100to101 define the extent of the right of private defence of body. Ifa pe.:Son
has a right of private defence of body under Section 97, that right extends
under Section l 00 to causing death if there is reasonable apprehension that
E death or grievous hurt would be the consequence of the assault. The oft
quoted observation of this Court in Salim Zia v. State ofU.P., AIR (1979) SC
391, runs as follows:
"It is true that the burden on an accused person to establish the plea
of self-defence is not as onerous as the one which lies on the
F 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. .
The number of injuries is not always a safe criterion for detennining
H
.. NAVEEN CHANDRA v. STATE OF UTTRANCHAL [PASA YAT, J .] 679
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 defence. The defence has to further establish that the
injuries so caused on the accused probabilise the version of the right of
private defence. Non-explanation of the injuries sustained by the accused at B
about the time of occurrence or in the course of altercation is a very important
circumstance. But mere non-explanation of the injuries by the prosecution
may not affect the prosecution case in all cases. This principle applies to
cases where the injuries sustained by the accused are minor and superficial
or where the evidence is so clear and cogent, so independent and disinterested,
so probable, consistent and credit-worthy, that it far outweighs the effect of C
the omission on the part of the prosecution to explain the injuries. [See
Lakshmi Singh v. State of Bihar, AIR (1976) SC 2263]. A plea of right of
private defence cannot be based on surmises and speculation. While
considering whether the right of private defence is available to an accused,
it is not relevant whether he may have a chance to inflict severe and mortal
injury on the aggressor. In order to find whether the right of private defence D
is available to an accused, the entire incident must be examined with care and
viewed in its proper setting. Section 97 deals with the subject matter of right
of private defence. The plea of right comprises the body or property (i) of the
person exercising the right; or (ii) of any other person; and the right may be
exercised in the case of any offence against the body, and in the case of E
offences of theft, robbery, mischief or criminal trespass, and attempts at such
offences in relation to property. Section 99 lays down the limits of the right
of private defence. Sections 96 and 98 give a right of private defence against
certain offences and acts. The right given under Sections 96 to 98 and 100
to 106 is controlled by Section 99. To claim a.right of private defence extending
to voluntary causing of death, the accused must show that there were F
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 I 00 and I 0 I, IPC define the Jim it and extent of right of private
defence.
G
Sections 102 and 105, IPC deal with commen~ement and continuance of
the right of private defence of body and property respectively. The right
commences, as soon as a reasonable apprehension of danger to the body
arises from an attempt, or threat, to commit the offence, although the offence
H
680 SUPREME COURT REPORTS (2006] SUPP. 9 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 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
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).
As noted in Butta Singh v. The State of Punjab, AIR ( 1991) SC 1316,
D a person who is apprehending death or bodily injury cannot weigh in golden
scales in the spur of moment and in the heat of circumstances, the number
of injuries required to disarm the assailants who were armed with weapons.
· In moments of excitement and disturbed mental equilibrium it is often difficult
to expect the parties to preserve composure and use exactly only so much
E force in retaliation commensurate with the danger apprehended to him where
assault is imminent by use of force, it would be lawful to repel the force in
self-defence and the right of private-defence commences, as soon as the
threat becomes so imminent. Such situations have to be pragmatically viewed
and not with high-powered spectacles or microscopes to detect slight or even
marginal overstepping. Due weightage has to be given to, and hyper technical
F approach has to be avoided in considering what happens on the spur of.the
moment on the spot and keeping in view normal human reaction and conduct,
where self-preservation is the paramount consideration. But, .if the fact situation
shows that in the guise of self-preservation, what really has been done is to
assault the original aggressor, even after the cause of reasonable apprehension
has disappeared, the plea of right of private-defence can legitimately be
G negatived. The Court dealing with the plea has to weigh the material to
conclude whether the pka is acceptable. It is essentially, as noted above, a
finding of fact.
The right of self-defence is a very valuable right, serving a social
H purpose and should not be construed narrowly. (See Vidhya Singh v. State
... NAVEENCHANDRAv. STATEOFUTTRANCHAL[PASAYAT,J.] 681
of MP., AIR (1971) SC 1857). Situations have to be judged from the subjective A
point of view of the accused concerned in the surrounding excitement and
confusion of the moment, confronted with a situation of peril and not by any
microscopic and pedantic scrutiny. In adjudging the question as to whether
more force than was necessary was used in the prevailing circumstances on
the spot it would be inappropriate, as held by this Court, to adopt tests by
detached objectivity which would be so natural in a Court room, or that which B
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 m;m in ordinary times or under
normal circumstances. c
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 D
felony against either his person, habitation or property. In these
cases, he is not obliged to retreat, and may not merely resist the attack
where he stands but may indeed pursue his adversary until the danger
is ended and if in a conflict between them he happens to kill his
attacker, such killing is justifiable."
E
The right of private defence is essentially a defensive right circumscribed
by the governing statute i.e. the IPC, available only when the circumstances
clearly justify it. It should not be allowed to be pleaded or availed as a pretext
for a vindictive, aggressive or retributive purpose of offence. It is a right of
defence; not of retribution, expected to repel unlawful aggression and not as
retaliatory measure. While providing for exercise of the right, care has been F
taken in IP~ 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. (See: V Subramani and Anr. v. The State of Tamil Nadu, [2005) 10
SCC358). G
Considering the background facts as highlighted above when tested in
the backdrop of the legal principles noted supra the inevitable conclusion is
that though the accused person was exercising right of private defence, but
had exceeded the same by continuing the attacks after the threat to live had
ceased. II
682 SUPREME COURT REPORTS [2006] SUPP. 9 S.C.R.
A Therefore, this appears to be a case where Section 304 Part I would be
the applicable provision. The conviction is altered accordingly. Ten years
custodial sentence would meet the ends of justice.
Therefore, this appears to be a case wher.e Section 304 Part I would be
the applicable provision. The conviction is altered accordingly. Ten years
B custodial sentence would meet the ends of justice.
The appeal is allowed to the aforesaid extent.
S.K.S. Appeal partly allowed.
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