Supreme Court of India
RAGHBIR SINGH AND ORS.versusSTATE OF HARYANA
- Citation
- 2008 INSC 1296
- Decided
- 12 November 2008
- Disposal
- Disposed off
- Bench
- ARIJIT PASAYAT
Holding
The Court held that the accused failed to establish a right of private defence and therefore the conviction under s.302 IPC must be altered to culpable homicide not amounting to murder under s.304(1) with a ten‑year sentence.
Summary
The appellants and a co‑accused were charged with offences including murder (s.302 IPC) arising from a violent dispute in which the deceased was attacked with lathis. The accused claimed they acted in private defence, asserting that the victim and his brother had assaulted them first. The Supreme Court examined the statutory framework of private defence under Sections 96‑101 of the IPC and the evidential burden under Section 105 of the Evidence Act, emphasizing that the burden lies on the accused to prove the plea on a pre‑ponderance of probabilities. The Court held that the facts did not demonstrate a reasonable apprehension of death or grievous hurt justifying lethal force, and the assault was a sudden quarrel rather than a lawful exercise of self‑defence. Consequently, the murder conviction under s.302 was reduced to culpable homicide not amounting to murder under s.304(1) with a ten‑year imprisonment, and the appeal was disposed of.
Issues considered
- The applicability of the right of private defence under Sections 96‑101 of the IPC to the facts of the case.
- The burden of proof for a plea of self‑defence under Section 105 of the Evidence Act, 1872.
- Whether the incident constitutes murder under s.302 IPC or culpable homicide not amounting to murder under s.304(1) invoking Exception 4 to s.300.
- The appropriate conviction and sentence in view of the evidentiary findings.
Legislation cited
- Code of Criminal Procedure, 1973s. 313
- Indian Evidence Act, 1872s. 105
- Indian Penal Code, 1860s. 100, s. 101, s. 102, s. 105, s. 148, s. 149, s. 300, s. 302, s. 304, s. 96, s. 97, s. 98, s. 99
Subjects
private defenceself-defenceburden of proofIndian Penal CodeSection 105 Evidence Actmurderculpable homicideexception 4 to s.300criminal appeal
Judgment
[2008] 15 S.C.R. 1108
J.
A RAGHBIR SINGH AND ORS.
v.
STATE OF HARYANA
(Criminal Appeal No.1776 of 2008)
NOVEMBER 12, 2008
B
[DR ARIJIT PASAYAT AND DR. MUKUNDAKAM.
SHARMA, JJ.]
PENAL CODE, 1860:
c
ss.97, 1GO and 101 - Right of private defence - Injuries
caused by accused to complainant, and his companion who
resultantly died - Plea of self-defence by accused - HELD:
Burden of proof is on the accused who sets up plea of self-
D defence - To claim a right of private defence extending to ·~-
voluntarily causing of death, accused must show that there
were circumstances giving rise to reasonable ground for
apprehending that either death or grievous hurt would be
caused to him - Right of private defence is essentially a
defensive right circumscribed by the provisions of1 /PC,
E
available only when circumstances clearly justify it - It sho.uld
not be allowed to be pleaded/availed as pretext for a
vindictive, aggressive or retributive purpose of offence - In the
instant case, accused did not establish that they were
exercising right of private defence - Evidence Act, 1872 -
F s.105.
s.300, Exception 4, s. 304 (Part I) r/w s.149 - Accused
causing injuries to victim resulting in his death - Plea of self'.".
defence - Rejected - Conviction by trial court u/s 3021149 -
G Affirmed by High Court except as regards one of the accused,
whom the High Court acquitted - HELD: Assaults were made
in the course of sadden quarrel, therefore, Exception 4 to s.300
applies - Conviction altered from s.302 to s.304 (part I) with
1O years custodial sentence.
H 1108
RAGHBIR SINGH AND ORS. v. STATE OF HARYANA 1109
The appellants and one 'BM' were prosecuted for A
commission of offences punishable u/ss 148, 302/149,
323/149 and 506 IPC. The prosecution case was that a
dispute arose between accused 'BM' on one side and his
two brothers, namely PW-5 and 'AS' (the deceased) and
their father (PW-6) on the other. On the day of incident, B
the appellants armed with 'lathis' came to the house of
PW-5 and attacked 'AS'. PW-5 tried to intervene but he
was also given 'lathi' blows as a result of which he fell
down. On hearing the noise, PW-6 and his wife came out
of the house. It is the case of the prosecution that in the c
incident PW-5 and 'AS' were also able to inflict some
injuries to some of the accused. PW-5 and 'AS' were
medically examined. 'AS' succumbed to his injuries the
following day. The stand of the accused party was that
PW-5 and 'AS' armed with 'lathis' went to the house of D
accused 'BM' and caused injuries to accused 'KS' and
two of their female family members; that only accused
'BM' and 'KS' were present at the scene of occurrence
at that time and they caused injuries to PW-5 'AS' in self-
defence. The trial court found the prosecution case
E
established and convicted all the accused u/ss 148, 302/
149 and 323/149. On appeal, the High Court acquitted
accused 'BM' and confirmed the conviction and the
sentence as regards the other accused.
In the instant appeal filed by the convicts, the only F
point for consideration before the Court was the alleged
exercise of right of private defence.
Disposing of the appeal, the Court
HELD: 1.1. Whether in a particular set of G
circumstances, a person legitimately acted in the exercise
of the ~ight of private defence is a question of fact to be
determined on the facts and circumstances of each case.
Where the right of private defence is pleaded, the defence
must be a reasonable and probable version satisfying the H
1110 SUPREME COURT REPORTS [2008] 15 S.C.R.
A 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. Under Section 105 of the Evidence .
Act, 1872, the burden of proof is on the accused, who sets
B up the plea of self-defence and the burden stands
discharged by showing ·preponderance of probabilities
in favour of that plea on the basis of the material on
j
record. In the absence of proof, it is not possible for the
Court to presume the truth of the plea of self-defence. The
c Court shall presume the absence of such circumstances.
It is for the c:ccused to place necess~ry material on record
either by himself adducing positive evidence or by
eliciting· necessary facts from the witnesses examined for
the prosecution. The question in such a case would be
a question of assessing the true effect of the prosecution
D ..,....
evidence, and not a question of the accused discharging
any burden. [Para 7] [1116-B-G]
Munshi Ram and Ors. v. Delhi Administration AIR _(1968)
SC 702; State of Gujarat v. Bai Fatima AIR (1975) SC 1478;
E State of U.P. v. Mohd. Musheer Khan AIR (1977) SC 2226
and Mohinder Pal Jolly v. State of Punjab AIR (1979) SC 577;
Salim Zia v. State of U.P., AIR (1979) SC 391 and Lakshmi·
Singh v. State of Bihar AIR (1976) SC 2263, relied on.
F 1.2. 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 be caused to him. The burden is on the
accused to show that he had a right of private defence
G
which extended to causing of death. [Para 8] [1118-F-G]
Jai Dev. v. State of Punjab AIR (1963) SC 612, referred r-
to
H 1.3. In order to find whether right 9f private defence
RAGHBIR SINGH AND ORS. v. STATE OF HARYANA 1111
.
I
)..
is available or not, the injuries received by the accused, A
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. Due weightage
has to be given to and hyper technical approach has to B
be avoided in considering what happens on the spur of
the moment on the spot, and normal human reaction and
conduct where self-preservation is the paramount
consideration have to be· kept in view. But, if the fact
situation shows that in the guise of self-preservation, c
what really has been done is the assault on 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
D
conclude whether the plea is acceptable. It is essentially,
a finding of fact. [Para 10 and 11) [1119-D; 1120-A-C]
Biran Singh v. State of Bihar AIR (1975) SC 87; Wassan
Singh v. State of Punjab [1996) 1 SCC 458; Sekar alias Raja
Sekharan v. State represented by Inspector of Police, T.N. E
[2002) 8 SCC 354; Butta Singh v. The State of Punjab AIR
(1991) SC 1316 and Vidhya Singh v. State of M.P. AIR (1971)
SC 1857, referred to.
'Russel on Crime', 11th Edition Volume I page 49,
F
referred to.
1.4. 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 G
as a pretext for a vindictive, aggressive or retributive
purpose of offence. It is a right of defence, 11ot of
retribution, expected to repel unlawful aggression and
not as retaliatory measure. A right to defend does not
include a right to launch an offensive, particularly when H
1112 SUPREME COURT REPORTS [2008] 15 S.C.R.
the need to defend no longer survived. [Para 14) [1121- A.
A
B-D]
1.5. Considering the background facts of the case
when tested in the backdrop of the legal principles, the
inevitable conclusion is that the accused persons did not
B
establish that they were exercising .right of private
defence. However, the assaults were made in the course
of sudden quarrel and, as such, Exception 4 to Section ).
300 IPC applies. Therefore, it would be proper to alter the
conviction from s. 302 to s.304 (Part I) IPC. Custodial
c sentence of 10 years would meet the ends of justice.
[Para 15) [1121-E-F]
Case Law Reference:
AIR (1968) SC 702 relied on para7
D
AIR (1975) SC 1478 relied on para 7
AIR (1977) SC 2226 relied on para 7
AIR (1979) SC 577 relied on para 7
:E
AIR (1979) SC 391 relied on para 7
AIR (1976) SC 2263 relied on para 8
AIR (1963) SC 612 referred to para 9
)-
F AIR (1975) SC 87 referred to para 10
[1996) 1 sec 458 referred to para 10
c20021 8 sec 354 referred to para 10
G AIR (1991) SC 1316 referred to para 11
AIR (1971) SC 1857 referred to para 12
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No.1776 of 2008.
H From the final Judgment and Order dated 14.11.2007 of
RAGHBIR SINGH AND ORS. v. STATE OF HARYANA 1113
).._
the High Court of Punjab and Haryana at Chandigarh in Criminal A
Appeal No. 68-DB of 1998.
Jasbir Singh Malik, R.K. Tripathi, Rahul Tyagi, K.P. Singh
and S.K. Sabharwal for the Appellants.
Rajesh Ranjan, Rajeev Gaur 'Naseem' and T.V. George B
for the Respondent.
....,
J., The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
c
2. Challenge in this appeal is to the judgment of a Division
-4 Bench of the Punjab and Haryana High Court dismissing the
appeal (Crl. Appeal No.68-DB of 1998) so far as the appellants
are concerned. However, co-accused Bhagmal was acquitted .
.D
~ 3. The appellants were convicted for offences punishable
under Sections 148, 302 read with Section 149 and 323/149
of the Indian Penal Code, 1860 (in short 'the IPC') but they were
acquitted of the charge under Section 506 IPC. Co-accused
- Bhagmal was convicted along with the appellants, but, as noted E
above, he was acquitted by the High Court.
4. The prosecution story, in a nutshell is as follows.
A case was registered on the basis of statement (Exh.P.L.)
~
of Krishan (complainant-PW-5). As per his statement, joint land F
owned by his father Naurang (PW6) and his three brothers was
earlier partitioned. In that partition, the land in which a well and
a room had been constructed by Nau rang, fell to the share of
his brother Bhagmal and in lieu of it, he was to pay Rs.6600/-
to Naurang. lnspite of repeated demands, he did not pay that G
amount and on December 30, 1994, he refused to pay the
same. On December 30, 1994, at about 1 P.M., com!)lainant-
Krishan was standing at the door of his house and his brother
Attar Singh (hereinafter referred to as 'the deceased') was
standing in front of his house in the street. All the appellants, H
1114 SUPREME COURT REPORTS [2008] 15 S.C.R.
A armed with 'Lathis', came there and started giving blows to the
deceased saying that he would not be spared. Krishan came
to rescue his brother, whereupon, appellant Raghbir Singh gave
'Lathi' blow on the right side of his chest. Appellant Mukhtiar
Singh also inflicted a 'Lathi' blow hitting Krishan on the back
B side of his neck. He fell down on the ground and in that position
appellant Kuldeep Singh gave him a · Lathi' blow on his waist
and appellant Raghbir Singh inflicted a 'Lathi' blow on his nose.
On hearing the alarm raised by Krishan; his father Naurang · )..
(PW6) and his mother Smt. Lichhma came out of the house.
c Krishan PW-5 ·and Attar Singh the deceased also inflicted
some injuries to the appellants in self-defence.
On December 30, 1994, Dr. Ramphal (PW-1) medico
legally examined Krishan (PW-5) and found four contusions on
his nose, back of right scapular region, right side of chest and
D the occipital region. As per opinion of the Doctor, the kind of
weapon used was blunt. ·
On the same day, Dr. Ramphal (PW-1) medico legally
examined Attar Singh and found eight injuries on his person
E which were a lacerated wound on the left supra orbital ridge,
an abrasion on·the left eye, two contusions on left cheek and
right side of forehead, bleeding on nose but no external injury,
a tooth was missing in the lower jaw in frontal part, an abrasion
on the left side of chest and an abrasion on left ·forearm.
F According to the Doctor, the kind of weapon used was blunt.
On December 31, 1994, Attar Singh succumbed to his
injuries. Post mortem on his dead body was conducted by Dr.
A.P. Sharma (PW-2) on December 31, 1994. According to his
opinion, the cause of death was due to the injuries on the head
G and spleen which were ante mortem in nature and sufficient to
cause death in the ordinary course of nature.
After completion of investigation, challan against the
accused was presented in the Committing Court.
H
RAGHBIR SINGH AND ORS. v. STATE OF HARYANA 1115
[DR. ARIJIT PASAYAT, J.]
In order to prove the offences charged against the A
accused-appellants, the prosecution examined fourteen
witnesses.
After closure of the prosecution evidence, statements of
the accused were recorded under Section 313 of the Code of 8
Criminal Procedure, 1973 (in short the 'Cr.P.C.') in which they
denied the prosecution allegations and pleaded innocence.
Plea taken by them is that Krishan al'ld Attar Singh had gone
to the house of accused-Bhagmal armed with lathis and had
caused injuries to Bhagmal and accused-Kuldeep Singh as well
as Smt. Krishna wife of Kartar Singh and Smt.. Shakuntlawife C
of Mukhtiar Singh. The defence plea taken by the accused is
that only Bhagmal and Kuldeep Singh accused were present
at the time of occurrence and they had caused injuries to
Krishan and Attar Singh in self-defence and that the other four
accused were not present at the time of occurrence. They also D
examined two witnesses in defence.
The Trial Court, on consideration of the material on record,
more particularly, the evidence of Krishan PW-5, who was
injured witness and his father Naurang PW-6, held the appellant E
guilty and convicted and sentenced them, as noted above.
The convicted accused persons preferred an appeal
before the High Court which was disposed of by the impugned
:..\. judgmenl dismissing the same qua the, appellants while F
directing acquittal of Shag Mal. >:
5. In support of the appeal, learned -counsel for ihe
appellant submitted that the accused persons acted in self
defence. The occurrence took place in course of a sudden
quarrel and the weapon was a lathi, therefore, Section 302 IPC G
has no application.
6. Learned counsel for the State, on the other hand,
supported the judgment of the High Court.
7. The only question which needs to be considered is the H
1116 SUPREME COURT REPORTS [2008] 15 S.C."R ..
A alleged exercise of right of private defence. Section 96, IPC A..
."'~
provides that nothing is an offence which is done in the exercise ~·
of the right of private defence. The Section does not define the
expr~ssion 'right of private defence'. It merely indicates that
nothing· is an offence which is done in the exercise of such right.
B Whether in a particular set of circumstances,· a person ).
legitimately actec;i in the exercise of the right of private defence <"
is a question of fact to be determined on the facts and !'
Circumsta.nces of each case. No test in the abstract for ;.
determining such a question can be laid down. In determining
·c this question of fact, the Court must consider all the surrounding
crrcumstances. It is not necessary for the accused to plead in
so many word~ 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
D
accused has not taken it, if the same is available to be }--
considered from the material on record. Under Section 105 of
the Indian Evidence Act, 1872 (in short 'the Evidence Act'), the
burden of proof is on the accused, who sets up the plea of self-
defence, and,. in the absence of proof, it is not possible for the
E 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
hirryself adducing positive evidence or by. eliciting necessary
facts ·trotn ·the witnesses examined for the .prosecution: An >:
F accused taking the plea of the right of private defence is not
necessarily required to call evidence; he can establish his plea f.-
)-
by reference to circumstances transpiring from the prosecution
._
evidence itself. The question in such a case would be a i1
question of assessing the true effect of the prosecution
G 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 r-
the Court that the harm caused by the accused was necessary
for either warding off the attack br for forestalling the further
H reasonable apprehension from the side of the accused. The
RAGHBIR SINGH AND ORS. v. STATE OF HARYANA 1117
[DR. ARIJIT PASAYAT, J.]
~ ~ burden of establishing the plea of self-defence is on the A
accused and the burden stands discharged by showing
preponderance of probabilities in favour of that plea on the basis
of the material on record. (See Munshi Ram and Ors. v. Delhi
Administration, AIR (1968) SC 702), State of Gujarat v. Bai
Fatima, AIR (1975) SC 1478, State of UP. v. Mohd. Musheer B
Khan, AIR (1977) SC 2226 and Mohinder Pal Jolly v. State
of Punjab, AIR (1979) SC 577. Sections 100 to 101 define the
extent of the right of private defence of body. If a person has a
right of private defence of body under Section 97, that right
extends under Section 100 to causing. death if there is c
reasonable apprehension that death or grievous hurt would be
the consequence of the assault. The oft quoted observation of
this Court in Salim Zia v. State of U.P., AIR (1979) SC 391 ),
runs as follows:
"It is true that the burden on an accused person to D
establish the plea of self-defence is not as onerous as the
one which lies on the prosecution and that, while the
prosecution is required to prove its case beyond
reasonable doubt, the accused need not establish the plea
to the hilt and may discharge his onus by establishing a E
mere preponderance of probabilities either by laying basis
for that plea in the cross-examination of the prosecution
witnesses or by adducing defence evidence .... "
The accused need not prove the existence ofthe right of private F
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.
8. The number of injuries is not always· a safe criterion for
determining who the aggressor was. It cannot be stated as a G
uni\(ersal 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 H
1118 SUPREME COURT REPORTS [2008] 15 S.C.R. .....
"
A version of the right of private defence. Non-explanation of the A, ...
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.
B 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 the omission· on the part of the prosecution to explain
c 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
D
of private defence is available to an accused, the entire incident
must be examined with care and viewed in its proper setting.
Section 97 deals with the subject matter of right of private
defence. The plea of right comprises the body or property of
the person exercising the right; or (ii) of any other person; and
E the right may be exercised in the case of any offence against
the body, and in the case of offences of theft, robbery, mischief
or criminal trespass, and attempts at such offences in relation
to property. Section 99 lays down the limits of the right of private
defence. Sections 96 and 98 give a right of private defence )..
F against certain offences and acts. The right given under ;
Sections 96 to 98 and 100 to 106 is controlled by Section 99. \
To claim a right of private defence extending to voluntary ;
\
causing of death, the accused must show that there were
circumstances giving rise to reasonable grounds for
G apprehending that either death or grievous hurt would be
caused to him. The burden is on the accused to show that he
had a right of private defence which extended to causing of
death. Sections 100 and 101, IPC define the limit and extent
of right of private defence.
H
RAGHBIR SINGH AND ORS. v. STATE OF HARYANA 1119
[DR ARIJIT PASAYAT, J.]
9. Sections 102 and 105, IPC deal with commencement A
and continuance of the right of private defence of body and
property respectively. The right commences, as soon as a
reasonable apprehension of danger to the body arises from an
attempt, or threat, to commit the offence, although the offence
may not have been committed but not until there is that B
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 c
destroyed or has been put to route, there can be no occasion
to exercise the right of private defence.
10. 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 D
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 ofBihar, AIR (1975) SC 87. (See: Wassan
Singh v. State of Punjab [1996] 1 SCC 458 and Sekar alias E
Raja Sekharan v. State represented by Inspector of Police,
r.N. [20021 8 sec 354.
11. As noted in Butta Singh v. The State of Punjab AIR
(1991) SC 1316, a person who is apprehending death or bodily F
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 G
use exactly only so much force in retaliation commensurate with
the danger apprehended to him where assault is imminent by
use of force, it would be lawful to repel the force in self-defence
and the right of private-defence commences, as soon as the
threat becomes so imminent. Such situations have to be
H
1120 SUPREME COURT REPORTS [2008] 15 S.C.R,.
A pragmatically viewed and not with high-poVl(ered 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
B reaction and conduct, where self-preservation is the pararnount
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-
C defence can legitimately be negatived. The Court dealing with
the plea has to weigh the material to conclude whether the plea.
is acceptable. It is essentially, as noted above, a finding of fact.
·· 12. The right of self-defence is a very valuable right, serving
a social purpose and should. not be construed narrowly: (See
D Vidhya Singh v. State of M.P. AIR (1971) SC 1857. Situations
have to be judged from the subjective ·point of view of the
accused concerned in the surrounding excitement and ..
a
confusion of the moment, confronted with situation of peril and ·
not by any microscopic and pedantic scrutiny. In adjudging the
E 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
objectivitywhichwould be so natural in a Court room, or that
Which would _seem absolutely necessary to a perfectly cool >
F bystander. The pefrsori ·facing a reasonable apprehension of
threat to himse'lf 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:
G 13. In the illuminating words of Russel (Russel on Crime,
11th Edition Volume I at page 49) :
" .... a man is justified in resisting by force anyo·ne who
manifestly intends and endeavours by violence or surprise
H to c.ommit a known felony against eitber his person,
RAGHBIR SINGH AND ORS. v. STATE OF HARYANA 1121
[DR. ARIJIT PASAYAT, J.]
habitation or property. In these cases, he is not obliged to A
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."
.B
14. 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 C
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
pretence for killing. A right to defend does not include a right
to launch an offensive, particularly when the need to defend no D
longer survived.
15. Considering the background facts as highlighted above
when tested in the backdrop of the legal principles noted supra
the inevitable conclusion is that the accused persons had not E
established that they were exercising right of private defence.
But the assaults were made in course of sudden quarrel and
Exception 4 to Section 300 IPC applies. Considering the
background facts as noted above, it would be proper to alter
the conviction from Section 302 IPC to Section 304 Part I IPC. F
Custodial sentence of 10 years would meet the ends of justice.
16. The appeal is accordingly disposed of.
RP. Appeal disposed of.
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