RAJ SINGHversusSTATE OF HARYANA ETC.

                         [2015] 7 S.C.R. 268


A                            RAJ SINGH
                                  v.
                    STATE OF HARYANA ETC.
              (CriminalAppeal Nos. 701-702 of2015)
B
                          APRIL 23, 2015
    [T.S. THAKUR, R. BANUMATHI AND AMITAVA ROY, JJ.]
           Penal Code, 1860: ss. 96 to 103, 300 exception 2, 304
c Part I - Culpable homicide - Right to private defence -
  Injuries on person of appellant not serious in nature -
   Complainant party were not carrying any arms or deadly
  weapons - The act on part of accused party of firing shots
  which resulted in death of victim was not at all to prevent any
D injury which sought to be averted or which could have been
  reasonably apprehended - Appellant-accused acted
  aggressively - Plea of self defence by appellant was not
  sustainable - The incident took place in the house of
  complainant and not in the house of appellant and therefore
E appellant not entitled to claim benefit of Exception 2 to s. 300
  - Evidence showed that the complainant party neither used
  fire arms nor any fire arm was found in their possession -
  Thus, complainant party did not exceed their right of private
  defence and caused harm that was necessary for purpose of
F private defence.
           Disposing of the appeals, the Court

           PER BANUMATHI, J.
G
         HELD: 1. To claim 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
H or grievous hurt would be caused to him. The law of
                                268
        RAJ SINGH v. STATE OF HARYANA ETC.                269


private defence does not require that the person A
assaulted or facing apprehension of an assault must run
away for safety. It entitles him to defend himself and law
gives him right of private defence. There is no right of
private defence where there is no apprehension of
danger. Necessity of averting and impending danger B
must be present, real or apparent. [Para 17] [280-G-H;
281-A]

  DharamAndOrs. vs. StateofHaryana, 2006(10)Suppl.
  SCR 391 : (2007) 15 SCC 241; Bhanwar Singh & Ors.        C
  vs. State of M.P. 2008 (9) SCR 1 : (2008) 16 sec 657;
  Biran Singh vs. State ofBiharAIR 1975 SC 87, Wassan
  Singh vs. State of Punjab 1995 (5) Suppl. SCR 703 :
  (1996) 1 SCC 458, Sekar alias Raja Sekharan vs. State
  represented by Inspector of Police, T.N., 2002 (3)       D
  Suppl. SCR 113: (2002) 8 sec 354, Buta Singh VS.
  State of Punjab, AIR 1991 SC 1316 and James Martin
  vs. State of Kera/a 2003(6) Suppl. SCR 910: (2004) 2
  sec 203 - relied on.
                                                           E
        2. The case of the appellant-RS is that
complainant party forcibly entered his house and shirted
fighting and the appellant-RS had reasonable
apprehension that he would be hurt and therefore he
fired the few shots in the air, and during the scuffle, the F
complainant party tried to forcibly snatch pistol from
him and fire was shot which incidentally hit the
deceased. DW2, the doctor expressed his opinion about
the injuries caused to RP and stated that RP sustained G
some bruises and contusions and had pain in the left
foot. DW2 examined RJP who was brought to the
hospital and there was pain and swelling in the left elbow,
pain and swelling in the right wrist. The injuries on the
person of the accused were not so serious. The H
complainant and his brothers were not carrying any
270      SUPREME COURT REPORTS               [2015] 7 S.C.R.

A arms or deadly weapons. The accused-appellants if at
  all any right accrued in their favour, while defending
  themselves, acted in a manner which was unduly
  disproportionate to the injury which they would have
  sustained at the hands of complainant party who were
B not armed with any deadly weapons. Thus, their act of
  firing shots which resulted in death of the victim-
  deceased was not at all to prevent any injury which was
  sought to be averted or which could have been
  reasonably apprehended. Appellant fired at the
C deceased recklessly from a close range indicating that
  the appellant-accused party were the aggressors. Law
  does not confer a right of self-defence on a man when
  he himself was the aggressor. There was no reason
  warranting interference with the conviction of the
0
  appellant-RS under Section 302 IPC and sentence of life
  imprisonment imposed on him. [paras 20 to 22) [283-F-
  G, H; 284-A-E, F-H; 285-A)

          3. So far as acquittal of RP and RJP is concerned,
E concurrent findings were recorded by both the trial court
  as well as the High Court for acquitting them. The
  appellate court would interfere with the order of acquittal
  only when the court below ignores or overlooks
F important circumstances and proved facts and
  misapplies the principles of criminal jurisprudence or
  tries to gloss over them. In the case in hand, it cannot
  be said that the reasonings recorded by the courts
  below for acquittal of RP and RJP were unreasonable
G warranting interference in exercise of jurisdiction under
  Art. 136 of the Constitution of India. [Para 23] [285-8-D]

         4. On the same day i.e. 4.12.2004, a cross case in
  the same police station was registered against the
H complainant party. According to the RS, on 3.12.2004,
  due to his illness he was in his house and at that time he
        RAJ SINGH v. STATE OF HARYANA ETC.                      271


  heard some abuse and when he reached the house of              A
  his brother RP, he saw the deceased lying on the ground.
'
  He further stated that the complainant party were armed
  with lathi, country made pistol, pharsa, rods and these
  persons caused injuries to his brothers RJP and RP. The
  trial court held that complainant party were guilty of         A
  constituting unlawful assembly and causing grievous
  injuries with blunt weapon and convicted them under
  Sections 148, 323, 325, 452 IPC r/w Section 149 IPC. The
  High Court acquitted them of all the charges. The place
  of occurrence was not the house of RS or his brother's         C
  as is evident from the fact, objects were not recovered
  immediately but recovered only after a gap of three-four
  days and no credible explanation is forthcoming from
  PW8 (SI) and PW 13 (ASI) for such delay. By perusal of
                                                                 0
  the evidence on record, it is clear neither any firearm was
  used by BS and others nor any such firearm was found
  in their possession. Upon consideration of the facts and
  circumstances and the nature of injuries caused, the
  High Court rightly held that the complainant party acted       E
  in private defence and acquitted them of the charges.
  Considering the nature of injuries and other material, on
  record, the complainant party have not exceeded their
  right of private defence and caused harm that was
  necessary for the purpose of private defence. Upon             F
  appreciation of evidence, the High Court rightly acquitted
  them and there was no reason to interfere with the same.
  [paras 24, 25] [285-E-H; 286-8-G, H; 287-A-C].

       PER T~ S. THAKUR, J (SUPPLEMENTING)                       G

       HELD: 1. A conjoint reading of provisions of
Sections 96 to 103 and Exception 2 to Section 300 of the
Code leaves no manner of doubt that culpable homicide
is not murder if the offender, in the exercise in good faith H
272      SUPREME COURT REPORTS              [2015] 7 S.C.R.

A of the right of private defence of person or property,
  exceeds the power given to him by law and causes the
  death of the person against whom he is exercising such
   right of defence, provided that such right is exercised
  without premeditation and without any intention of doing
B more harm than is necessary for the purpose of such
  defence. A fortiori in cases where an accused sets up
  right of private defence, the first and the foremost
  question that would fall for determination by the Court
  would be whether the accused had the right of private
C defence in the situation in which death or other harm
  was caused by him. If the answer to that question is in
  the negative, Exception 2 to Section 300 of the Code
  would be of no assistance. Absence of good faith in the
  exercise of the right of private defence, premeditation
0
  for the exercise of such right and acts done with the
  intention of causing more harm than is necessary for
  the purpose of such defence would deny to the offender
  the benefit of Exception 2 to Section 300. The High Court
E has, in the case at hand, clearly recorded a finding that
  the appellants were the aggressors in the incident that
  led to the death of deceased. Banumathi, J. has in the
  proposed order referred to the evidence supporting that
  finding. Once it is held that the RS and others were the
F aggressors and that the incident had taken place in the
  house of the complainant and not at the house of the
  said appellants as alleged by them, there is no room for
  the appellants to claim the benefit of Exception 2 to
  Section 300 of the Code. That is so particularly when
G neither deceased nor others examined as prosecution
  witnesses supporting the complainant's case were
  armed. The question whether the appellants exceeded
  the right of private defence does not, therefore, really
  arise for consideration. Since no such right was, in the
H facts and circumstances of the case, available to them,
        RAJ SINGH v. STATE OF HARYANA ETC.                   273


there was no question of their exceeding the same.            A
[paras 4, 5] [288-H; 289-A-F; 290-C-F]

                   Case Law Reference

Per Banumathi, J
                                                              B
2006 (10) Suppl. SCR 391         relied on.   para 18
2008 (9) SCR 1.                  relied on.   para 19
1975 (4) sec 161                 relied on.   para 19
1995 (5) Suppl. SCR 703          relied on.   para 19         c
2002 (3) Suppl. SCR 113          relied on.   para 19
1991AIR1316                      relied on.   para 19
2003 (6) Suppl. SCR 910          relied on.   para 19
                                                              D
      CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal Nos. 701-702 of2015

      From the Judgment and Order dated 30.01.2013 of the
High Court of Punjab & Haryana at Chandigarh in Criminal      E
Appeal No. D-440-DB/2008

                      WITH

Crl. A. Nos. 703 & 704 of 2015
                                  , ..                        F
     S. Gurukrishna Kumar, B. K. Satija, AAG, Vivek Singh,
A.Prasanna Venkta, Gagan Gupta, Kamal Mohan Gupta: Amit
Anand Tiwari for the appearing parties.

     The Judgments of the Court were delivered by             G

     R. BANUMATHI, J. 1. Leave granted.

     2. These appeals by way of Special Leave arise out of
the common judgment dated 30.01.2013, passed by the H
Punjab and Haryana High Court in Criminal Appeal No.D-
274          SUPREME COURT REPORTS                    [2015] 7 S.C.R.


A 440-DB of 2008 & Criminal Revision No.2758 of 2008, by
  which, the High Court dismissed the Criminal Appeal of the
  appellant-Raj Singh and partly allowed the Criminal Revision
  qua Raj Singh filed by Bharat Singh and thereby converting
  the conviction of the appellant under Section 304 Part 1 IPC
B to Section 302 IPC and maintained sentence of life
  imprisonment imposed on him and dismissed the revision qua
  Rishi Pal and Rajpal.

             3. Brief facts which led to the filing of these appeals are
C     as follows: The complainant-Bharat Singh serves in the Army
      and on 23.11.2004, he came to his village for fifteen days
      holidays. They are three brothers, Girdhari Lal, Devender Singh
      and Bharat Singh. In his complaint, Bharat Singh alleged that
      on 3.12.2004 at about 6.00 pm, when he was standing at the
D     main gate of his cousin's house with one Tilak Raj, Rishipal-
      brother of the appellant came there with an axe in his hand
      and there was wordy altercation. Rishipal assaulted the
      complainant-Bharat Singh with a Kulhari on his left buttock,
      however, Bharat Singh managed to save his life, and rushed
E     towards his home. The complainant narrated the whole
      incident to his brother Devender Singh and he was taken to
      the hospital wherein Dr. Gobind Singh at village Badshahpur
      treated him and thereafter both the brothers returned to the
F     village. When the elder brother Girdhari returned home at about
      8.30 P.M., Bharat Singh narrated the whole incident to him
      and he was rebuked by his elder brother.

        4. While the complainant and others were talking to each
  other at the main gate, the appellant-Raj Singh, armed with
G licensed pistol, Rishi, armed with countrymade pistol, Rajendra
  and Ram Pal, armed with lathies came to the house of Girdhari
  Lal and attacked Bharat Singh and others. Appellant-Raj Singh
  fired shot at Girdhari's chest from his pistol and Girdhari fell
H down on the ground. When Bharat Singh raised alarm,
  appellant fired at Bharat Singh which hit his left back side below
        RAJ SINGH v. STATE OF HARYANAETC.                     275
                 [R. BANUMATHI, J.]

the shoulders. As Bharat Singh raised alarm, Mahabir Singh A
and his elder brother Gajraj-PW6 rushed to the spot. Mahabir
tried to lift Girdhari in order to save him, at that time, Rishi
again fired from the countrymade pistol on Mahabir Singh and
Gajraj. Further Rajender and Rampa! assaulted Gajraj with
lathis. Girdhari was immediately taken to Government Hospital, B
Gurgaon for treatment where the doctor declared him as
"brought dead". Injured persons Mahabir, Gajraj-PW6 and
Bharat Singh-PW1 were given treatment. On receipt of ruqqa
from the Government Hospital, Gurgaon, PW13-Rajender
Singh (ASI) recorded the statement of PW1-Bharat Singh and C
registered the case in FIR No.321/2004 under Section 302
IPC. On completion of investigation, chargesheet was filed
under Sections 323, 324, 302, 307 and 506 read with Section
341PC.
                                                                 D
      5. To bring home the guilt of the accused, prosecution
examined as many as thirteen witnesses and accused have
examined three defence witnesses. The Additional Sessions
Judge, Fast Track Court, Gwgaon vide judgment dated
17 .05.2008 held that the appellant-Raj Singh had exceeded E
the right of private defence and convicted the appellant-Raj
Singh under Section 304 Part-1 IPC and acquitted Rajpal and
Rishi Pal. The ASJ Vide separate order dated 20.05.2008,
sentenced the appellant-Raj Singh to undergo rigorous F
imprisonment for life and imposed a fine of Rs.7,000/- with
default clause.

      6. Challenging the acquittal of Rishi Pal and Rajpal, Bharat
Singh-PW1 preferred Criminal Revision. Challenging his
conviction, Raj Singh-accused preferred Criminal Appeal G
before the High Court wherein the High Court vide common
judgment dated 30.01.2013 dismissed the Criminal Appeal
of the appellant-Raj Singh and allowed the Criminal Revision
filed by the complainant-Bharat Singh and thereby converted H
the conviction of the appellant under Section 304 Part 1 IPC
276         SUPREME COURT REPORTS                   [2015] 7 S.C.R.


A to Section 302 IPC and maintained the sentence of life
      imprisonment imposed on him.

            7. On the same day a cross case i.e. on 4.12.2004 in the
      same police station was lodged by the appellant party against
B     Mahabir Singh and others and they were also charge sheeted.
      Vide separate judgment dated 17.05.2008, trial court held that
      complarnant party namely, Mahabir Singh, Bharat Singh,
      Gajraj, Anil and Satish are guilty of constituting unlawful
      assembly and causing grievous injury with blunt weapon to
C     Rishi Pal and Rajpal and convicted them under Sections 148,
      323, 325 and 452 IPC read with Section 149 IPC and
      sentenced them to undergo various imprisonment imposed
      on them. Being aggrieved, Bharat Singh, Mahabir and others
      preferred appeal before High Court. Upon consideration of
D     evidence and material on record, High Court held that
      reasonable doubts arise as to the prosecution version
      regarding scene of occurrence and the manner of attack and
      held that death of Girdhari and injuries to the accused Mahabir
      Singh and others were not properly explained which is fatal to
E     the prosecution case and thus acquitted Mahabir Singh, Bharat
      Singh and others.

        8. Mr. Gurukrishna Kumar, learned Senior Counsel
  appearing for the appellants contended that the place of
F occurrence was house of the appellant which means that the
  complainant party (seven in number) came to the house as
  aggressors and the appellant had no option but to fire from his
  gun in self defence of his own and his brothers and the alleged
  act of the appellant cannot in any manner be said to be in
G excess of right of private defence. It was further submitted
  that the appellant had specifically urged private defence which
  was accepted by the trial court and erroneously rejected by
  the High Court. Learned Senior Counsel urged that the High
H Court was not right in dissecting the statement of the appellant
  under Section 313 Cr.P.C. by relying upon the inculpatory part
         RAJ SINGH v. STATE OF HARYANAETC,                         277
                  [R. BANUMATHI, J.)

of it but declining to take into account his explanation as to A
how the firearm shot occurred and the impugned judgment is
unsustainable.

       9. Per contra, learned counsel for the respondents
 contended that no cogent evidence is on record to substantiate B
 the argument that complainant party were the aggressors. It
 was submitted that the occurrence took place in the house of
 the complainant but the police helped the appellant by changing
 the place of occurrence after three-four days of occurrence. It
 was argued that the act of the appellant in firing gun shots was C
·not in exercise of right of private defence and the High Court
 rightly reversed the judgment of the trial court and convicted
 the appellant under Section 302 IPC.

    10. We have carefully considered the rival submissions          o
and perused the evidence and material on record and the
impugned judgment.
      11. PW1-Bharat Singh had spoken about the occurrence
in the evening that he was attacked by the accused party with       E
axe (kulhan) and PW1-Bharat Singh narrated the same to his
brothers Girdhari (deceased) and Anil Kumar-PW5 who
returned home at about 8.30 P.M. after attending a marriage
party. Girdhari rebuked Bharat Singh and when they were all
talking in the house of Girdhari, the appellant and his brother     F
Rishi Pal and Rajpal came to the house of Girdhari armed
with deadly weapons. Appellant-Raj Singh fired gun shots and
Girdhari sustained firearm injury in his chest and he fell down.
Raj Singh fired at Bharat Singh-PW1 and injury was caused
on the backside of his shoulder. When Mahabir tried to lift         G
Girdhari, at that time Rishi Pal fired at Mahabir with
countrymade pistol. Rajpal and Rajendra are alleged to have
given lathi blows on the person of Gajraj Singh-PW6 and all
the accused ran away, Girdhari was taken to hospital and he
was declared 'brought dead' by the doctor. PW1-Bharat Singh,        H
278       SUPREME COURT REPORTS                 [2015] 7 S.C.R.


A PW5-Anil Kumar and PW6-Gajraj have clearly spoken about
   the occurrence, they were consistent in their version despite
   searching cross-examination and their evidence is trustworthy.
   Further, evidence of eye-witnesses is strengthened by the
   medical evidence.
8
        12. To substantiate the defence plea that the complainant
   party are the aggressors, much reliance is placed on the
  evidence of PW?-Dr. Kulvinder Singh, Senior Scientific Officer
  who has stated that he visited the place of occurrence-house
C of the accused as well as house of deceased Girdhari on
  7.12.2004. As per the site plan Ex.PG/I dead body was
  detected at spot 'A' and that blood stains were detected on
  polythene sheet at plan 'C' and splashes of blood detected on
  dung cakes and one woolen monkey cap, four empty cartridges
D and one live cartridge were recovered from the courtyard of
  the house of the accused. PW? specifically stated that no
  blood stains or any other physical clues related to the
  occurrence could be detected in the courtyard of the house of
  deceased-Girdhari.
E
        13. Laying much emphasis upon the site plan prepared
  on 7.12.2004 and evidence of PW?, learned Senior Counsel
  for the appellant submitted that PW? is a government official
  and an independent witness who has no reason to depose
F falsely in favour of the appellant and his statement has been
  further corroborated by the evidence of the investigating
  officers namely PW8-Kuldip Singh( SI) and PW13-Rajender
  Singh (ASI). Learned Senior Counsel further submitted that
  the High Court erred in saying that there was no explanation
G as to how the articles remained in the courtyard of the house
  of the accused and were not recovered for four-five days, the
  High Court has not properly appreciated the evidence of PW13
  and erred in reversing the findings of the trial court.

H        14. It is to be noted PW8-Kuldeep Singh, Sub Inspector
         RAJ SINGH v. STATE OF HARYANAETC.                           279
                  [R. BANUMATHI, J.}

of Police had deposed that on 4.12.2004, he along with DSP            A
Sube Singh and other police officials went to Girdhari's house
and recorded the statement of one Rajkumar and others and
spot inspection was also conducted as per their version and
according to him no site plan was prepared on 4.12.2004 as
the ladies of the house were weeping and everyone was                 B
disturbed. On 5.12.2004, PW8-Kuldeep Singh (SI) prepared
the site plan of the place of occurrence as given in the F. I. R.,
but according to PW8, no physical evidence was available at
the spot on 5.12.2004. On 7.12.2004, a team of experts along
with PW13-Rajender Singh (ASI) inspected the house of the             C
accused-Raj Singh and Rajpal and recovered four empty
cartridges, one live cartridge, monkey cap and five pairs of
hawai chappals and blood stains on polythene. It is a matter
of common knowledge that the above material' objects
                                                                      0
recovered on 7.12.2004 could have been noticed with naked
eyes. While so, it is quite unnatural as to why the above material
objects were not recovered on 4.12.2004 and 5.12.2004
inspite of the investigating team inspecting the spot on those
two days. It is in this backdrop, the evidence of PW7-Dr.             E
Kulvinder Singh and PW13-Rajender Singh (ASI) as to the
alleged recovery on 7.12.2004 has to be examined.

      15. PW13-ASI Rajender Singh has stated that he made
enquiries from some persons and he came to kno!" that the F
actual place of occurrence is the house of appellant and as
such no person has been examined in the court to s~ow that
the place of occurrence was the house of accused. In the site
plan prepared on 5.12.2004, the place of occurrence was
shown as in front of the house of Girdhari and not in the G
courtyard of the house ofthe appellant. In their statement under
Section 313 Cr.P.C., the accused have stated that PW1-
Bharat Singh and his brothers PW5-Anil Kumar, deceased-
Girdhari, joined together and went to the house of the accused
and that the place of occurrence is the house of the accused. H
280        SUPREME COURT REPORTS                    [2015] 7 S.C.R.


A As rightly observed by the High Court, the accused have also
  not examined any witnesses to substantiate their plea. Ignoring
  these material aspects, in our view, the Sessions Judge was
  not right in holding that the place of occurrence was the house
  of the accused and that the complainant party were the
B aggressors. The approach of the learned Sessions Judge
  borders on perversity and reasons for holding that the place of
  occurrence was the house of the accused is factually
  unsustainable and the High Court rightly set aside the findings
  of the trial court. We concur with the findings of the High Court
C that the investigating officer had helped the appellant by
  changing the place of occurrence to make it appear that the
  complainant party were the aggressors.

         16. Plea of self-defence: The contention of the appellant
D is that he is not an aggressor and since the complainant party
  was in possession of lethal weapons which caused reasonable
  apprehension in the mind of the appellant as to the threat to
  his life and his two brothers and therefore the appellant had no
  option but to fire from his gun and the alleged act of the appellant
E cannot, in any manner, be said to be in excess of his right of
  private defence.

        17. The right of private defence is codified in Sections
  96 to 106 IPC. Section 96 declares that "nothing is an offence
F which is done in exercise of the right of the private defence".
  Section 97 states that every person has right of defence of
  person as well as of property. Section 100 describes the
  situations in which the right of private defence of body extends
  to the extent of voluntarily causing of death. To claim right of
G 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 law of private
H defence does not require that the person assaulted or facing
  apprehension of an assault must run away for safety. It entitles
         RAJ SINGH v. STATE OF HARYANAETC.                       281
                  [R. BANUMATHI, J.]

him to defend himself and law gives him right of private defence. A
There is no right of private defence where t'nere is no
apprehension of danger. Necessity of averting and impending
danger must be present, real or apparent.            :~'·

      18. Elaborating the scope of right of private defence, in B
Dharam And Ors. vs. State of Haryana, (2007) 15 SCC 241
in paragraphs (18) and (19) it was held as under:-

  "18. Thus, the basic principle underlying the doctrine of
  the right of private defence is that when an individual or      c
  his property is faced with a danger and immediate aid
  from the State machinery is not readily available, that
  individual is entitled to protect himself and his property.
  That being so, the necessary corollary is that the violence
  which the citizen defending himself or his property is          D
  entitled to use must not be unduly disproportionate to the
  injury which is sought to be averted or which is rea~onably
  apprehended and should not exceed its legitimate
  purpose. We may, however, hasten to add that the means
  and the force a threatened person adopts at the spur of         E
  the moment to ward off the danger and to save himself
  or his property cannot be weighed in golden scales. It is
  neither possible nor prudent to lay down abstract
  parameters which can be applied to determine as to
  whether the means and force adopted by the threatened           F
  person was proper or not. Answer to such a question
  depends upon a host of factors like the prevailing
  circumstances at the spot, his feelings at the relevant
  time, the confusion and the excitement depending_ on the
  nature of assault on him, etc. Nonetheless, the exercise        G
  of the right of private defence can never be vindictive or
  malicious. It would be repugnant to the very concept of
  private defence.

   19. It is trite that the burden of establishing the plea of    H
282         SUPREME COURT REPORTS                     [2015] 7 S.C.R.


A       self-defence is on the accused but it is not as onerous
        as the one that lies on the prosecution. While the
        prosecution is required to prove its case beyond
        reasonable doubt, the accused need not establish the
        plea of self-defence to the hilt and may discharge the
B       wonus by showing preponderance of probabilities in
        favour of that plea on the basis of the material on record
        (see Munshi Ram v. Delhi Admn.(AIR 1968 SC 702),
        State of Gujarat v. Bai Fatima((1975) 2 SCC 7) and
        Salim Zia v. State of U.P(1979) 2 SCC 648)."
c
           19. In the case of BhanwarSingh &Ors. vs. State of MP,
      (2008) 16 sec 657, in paragraphs (50) and (60) it was held
      as under:-

D       "50. The plea of private defence has been brought up by
        the appellants. For this plea to succeed in totality, it must
        be proved that there existed a right to private defence in
        favour of the accused, and that this right extended to
        causing death. Hence, if the court were to reject this plea.
E       there are two possible ways in which this may be done.
        On one hand, it may be held that there existed a right to
        private defence of the body. However. more harm than
        necessary was caused or. alternatively, this right did not
        extend to causing death. Such a ruling may result in the
F       application of Section 300 Exception 2. which states that
        culpable homicide is not murder if the offender, in the
        exercise in good faith of the right of private defence of
        person or property. exceeds the power given to him by
        law and causes the death of the person against whom
G       he is exercising such right of defence without
        premeditation. and without any intention of doing more
        harm than is necessary for the purpose of such defence.
        The other situation is where, on appreciation of facts,
        the right of private defence is held not to exist at all.
H
         RAJ SINGH v. STATE OF HARYANAETC.                             283
                  [R. BANUMATHI, J.]

   60. To put it pithily, the rig ht of private defence is a defence    A
   right. It is neither a right of aggression or of reprisal. There
   is no right of private defence where there is no
   apprehension of danger. The right of private defence is
   available only to one who is suddenly confronted with the
   necessity of averting an impending danger not of self-               B
   creation. Necessity must be present, real or apparent".
   (emphasis added)

     The same view is also expressed in the cases of Biran
Singh vs. State of Bihar, AIR 1975 SC 87, Wassan Singh vs. C
State of Punjab,(1996) 1 SCC 458, Sekar alias Raja
Sekharan vs. State represented by Inspector of Police, TN.,
(2002) 8 SCC 354, Buta Singh vs. State of Punjab, AIR 1991
SC 1316 and James Martin vs. State of Kera/a, (2004) 2
sec 203.                                                    D

      20. In the present case, plea of private defence has been
put forth by the appellant. To succeed in the plea of private
defence, the appellant has to prove that he exercised right of
private defence in his favour and this right extended to the extent E
of causing death. In the facts and circumstances of the present
case, let us consider whether right of private defence was
available to the accused. Case of the appellant is that
complainant party forcibly entered his house and started
fighting and the appellant had reasonable apprehension that F
he would be hurt and therefore he fired the few shots in the air,
and during the scuffle, the complainant party tried to forcibly
snatch pistol from him and fire was shot which incidentally hit
the deceased-Girdhari. Further case of the appellant is that
the complainant party armed with weapons were the G
aggressors and they caused serious injuries to the appe 11 ant
and his brothers Rishi Pal and Rajpal.

      21. DW2-Dr. Arun has expressed his opinion about the
injuries caused to Rishi Pal and stated that Rishi Pal sustained H
284        SUPREME COURT REPORTS                    [2015] 7 S.C.R.


A some bruises and contusions and had pain in the left foot.
  DW2-Dr. Arun examined Rajpal who was brought to the
  hospital and there was pain and swelling in the left elbow, pain
  and swelling in the right wrist. DW1-Dr. Shailza Aggarwal
  examined x-ray of Rishipal and found that there was fracture
B in the fifth metatarsal of the left foot. DW1-Dr. Shailza Aggarwal
  also examined x-ray of Raj Pal and found fracture of fifth
  metacarpal right hand. The injuries on the person of the
  accused were not so serious.

C          22. Bharat Singh and his brothers were not carrying any
   arms or deadly weapons. The accused-appellants if at all any
   right accrued in their favour, while defending themselves, acted
   in a manner which is unduly disproportionate to the injury which
   they would have sustained at the hands of complainant party
D who were not armed with any deadly weapons. Thus, their act
   of firing shots which resulted in death of Girdhari, was not at all
   to prevent any injury which was sought to be averted or which
   could have been reasonably apprehended. At no point of time,
   any reasonable apprehension of death or grievous injury was
E_ perceivable, but the accused-appellants aggressively acted
   and fired shots at deceased. Relying upon the evidence of
   PW-5-Anil Kumar, High Court also recorded a finding that
   appellant fired Girdhari from a short distance of four to five
F feet, even when the complainant party was not armed with lethal
   weapons. Appellant fired at Girdhari recklessly from a close
   range indicating that the appellant-accused party were the
   aggressors. Law does not confer a right of self-defence on a
   man when he himself was the aggressor. In the present case,
G the complainant party were not armed with lethal weapons;
   but the appellant was armed with a pistol. When the appellant
   and his party were the aggressors firing several rounds of
   firearm, the High Court rightly held that the plea of self defence
   raised by the accused is not sustainable. We find no reason
H warranting interference with the conviction of the appellant
          RAJ SINGH v. STATE OF HARYANAETC.                    . 285
                   [R. BANUMATHI, J.]

 under Section 302 IPC and sentence of life imprisonment A
 imposed on him.

         23. Criminal Appeal arising out of SLP (Crl.) ·
  No.10739/2013: So far as acquittal of Rishi Pal and Rajpal is
  concerned, concurrent findings were recorded by both the trial B
  court as well as the High Court for acquitting them. The
  appellate court would interfere with the order of acquittal only
  when the court below ignores or overlooks important
· circumstances and proved facts and misapplies the principles
  of criminal jurisprudence or tries to gloss over them. In the C
  case in hand, it cannot be said that the reasonings recorded
  by the courts below for acquittal of Rishipal and Raj Pal are
  unreasonable warranting interference in exercise of jurisdiction
  under Article 136 of the Constitution of India and this appeal
  is liable to be dismissed.                                       D

       24. Criminal Appeal arising out of SLP (Crl.)
 No.6347/2013: As mentioned above, on the same day i.e.
 4.12.2004, a cross case in the same police station (Police
 Station, Sohna) was registered against the complainant party,    E
 namely, Mahabir,' Satish, Bharat Singh, Gajraj, Anil and
 Devender. According to the complainant-Raj Singh, on
 3.12.2004, due to his illness he was in his house and at that
 time he heard some abuse and when he reached the house of
 his brother Rajpal, he saw Girdhari lying on the ground. He      F
 further stated that Mahabir, Gajaraj, Anil, Devender, Bharat
 Singh and Satish son of Mahipal were present there and Gajraj
 was armed with lathi, Mahabir was armed with country made
 pistol, Anil was armed with pharsa, Devender and Lallu were
 having rods and Bharat Singh was having countrymade pistol      G
 and Satish was having rod in his hand and these persons
 caused injuries to his brothers Rajpal and Rishi Pal. After
 completion of investigation, chargesheet was filed against
 Mahabir and others in Sessions Case No. 3/2006. Vide            H
286       SUPREME COURT REPORTS                    [2015] 7 S.C.R.


A separate order dated 17.5.2008, the Additional Sessions
  Judge, Fast Track Court, Gurgaon held that respondent party
  namely Mahabir, Satish alias Lallu, Bharat Singh, Gajraj,Anil
  are guilty of constituting unlawful assembly and causing
  grievous injuries with blunt weapon and convicted them under
B Sections 148, 323, 325, 452 IPC read with Section 149 IPC.
  For conviction under Section 325 IPC read with Section 149
  IPC, trial court sentenced each of them to undergo rigorous
  imprisonment for two years and fine of Rs.1500/- each with
  default clause. For conviction under other offences they were
C imposed various sentence of imprisonment and also fine.
  Sentence of imprisonment imposed on each of them were
  ordered to run concurrently. Giving benefit of doubt, Devender
  was acquitted of the charges. Challenging the verdict of
  conviction, Mahabir and others filed Criminal Appeal
0
  No.S-1062-SB/2008 before the High Court of Punjab and
  Haryana and the High Court vide common order dated
  30.01.2013 allowed the appeal of the accused persons and
  the High Court acquitted them of all the charges.
E         25. As discussed earlier, place of occurrence was not
  the house of Raj Singh or his brother's house as is evident
  from the fact, objects were not recovered immediately but
  recovered only after a gap of three-four days and no credible
F explanation is forthcoming from PW8-Kuldeep Singh (SI) and
  PW 13- Rajender Singh (ASI) for such delay. By perusal of
  the evidence on record, it is clear neither any firearm was used
  by Bharat Singh and others nor any such firearm was found in
  their possession. As far as injuries sustained by Rishi Pal
G and Rajpal are concerned, Rajpal sustained lacerated wound
  and fracture fifth of metacarpal and Rishi Pal sustained fracture
  of fifth metatarsal. The doctors have opined that the said injuries
  are possible by a fall. As discussed earlier, Mahabir and others
  were neither the aggressors nor there was any pre-meditation
H to cause the said injuries. Upon consideration of the facts
        RAJ SINGH v. STATE OF HARYANA ETC.                    287


and circumstances and the nature of injuries caused, the High A
Court rightly held that the complainant party (Mahabir and
others) acted in private defence and acquitted them of the
charges. Considering the nature of injuries and other material
on record, in our view, the complainant party have not exceeded
their right of private defence and caused harm that was B
necessary for the purpose of private defence. Upon
appreciation of evidence, the High Court rightly acquitted
Mahabir and others and we find no reason to interfere with the
same.
                                                               c
     26. Criminal appeals arising out of S.L.P.(Crl.)
Nos.5767-5768/13. The conviction of the appellant-Raj Singh
under Section 302 IPC and sentence of life imprisonment
imposed on him is confirmed and the appeals preferred by
Raj Singh are dismissed. Criminal appeals arising out of D
S.L.P.(Crl.) Nos.6347/13 & 10739/13 filed by Raj Kumar and
Bharat Singh stand dismissed.

      T. S. THAKUR, J. 1. I have had the advantage of going
through the order proposed by my Esteemed Sister E
Banumathi, J. While I agree with the conclusion arrived at by
her, I would like to add a few lines of my own .

     . 2. Exception 2 to Section 300 of the Indian Penal Code
provides that culpable homicide is not murder if the offender, F
in the exercise in good faith of the right of private defence of
person or property, exceeds the power given to him by law
and causes the death of the person against whom he is
exercising such right of defence without premeditation, and
without any intention of doing more harm than is necessary for G
the purpose of such defence. Right of private defence is, in
turn, recognised by Section 96 of the Code which provides
that nothing is an offence which is done in the exercise of the
right of private defence. Section 97 of the Code recognises
the private defence of the body and of property and reads as: H
288        SUPREME COURT REPORTS                  [2015) 7 S.C.R.


A      "97. Right of private defence of the body and of
       property. - Every person has a right, subject to the
       restrictions contained in Section 99, to defend-

       First.-    His own body, and the body of any other
B                 person, against any offence affecting the
                  human body.

       Secondly.- The property, whether movable or
                 immovable, of himself or of any other
c                person, against any act which is an offence
                 falling under the definition of theft, robbery,
                 mischief or criminal trespass, or which is an
                 attempt to commit theft, robbery, mischief or
                 criminal trespass."                       '
D
         3. Section 99 of the Code deals with acts againstwhich
  there is no right of private defence and, inter alia, provides
  that the right of private defence in no case extends to the
  inflicting of more harm than it is necessary to inflict for the
E purpose of defence. Section 100 of the Code deals with
  situations in which the right of private defence of the body
  extends to voluntarily causing death or of any other harm to the
  assailant, if the offence which occasions the exercise of the
  right is one of the kind enumerated under the said Section.
F The offences enumerated under the said provision include
  offences like causing death, grievous hurt, committing rape,
  gratifying unnatural lust and assault with the intention of
  kidnapping or abducting. Section 103 of the Code similarly
  deals with the right of private defence of property in situations
G enumerated thereunder, which includes offences like robbery,
  house-breaking by night, mischief by fire committed of any
  building, tent or vessel used as a human dwelling etc.

       4. A conjoint reading of provisions of Sections 96 to 103
H and Exception 2 to Section 300 of the Code leaves no manner
         RAJ SINGH v. STATEOF HARYANA ETC.                      289
                   [T. S. THAKUR, J.]

of doubt that culpable homicide is not murder if the offender, in A
the exercise in good faith of the right of private defence of
person or property, exceeds the power given to him by law
and causes the death of the person against whom he is
exercising such right of defence, provided that such right is
exercised without premeditation and without any intention of B
doing more harm than is necessary for the purpose of such
defence. A fortiori in cases where an accused sets up right of
private defence, the first and the foremost question that would
fall for determination by the Court would be whether the
accused had the right of private defence in the situation in C
which death or other harm was caused by him. If the answer
to that question is in the negative, Exception 2 to Section 300
of the Code would be of no assistance. Exception 2
presupposes that the offender had the right of private defence
                                                                   0
of person or property but he had exceeded such right by
causing death. It is only in case answer to the first question is
in the affirmative viz. that the offender had the right of defence
of person or property, that the next question viz. whether he
had exercised that right in good faith and without premeditation E
and without any intention of doing more harm that was
necessary for the purpose of such defence would arise. Should
answer to any one of these questions be in the negative, the
offender will not be entitled to the benefit of Exception 2 to
Section 300 of the Code. Absence of good faith in the exercise . F
of the right of private defence, premeditation for the exercise
of such right and acts done with the intention of causing more
harm than is necessary for the purpose of such defence would
deny to the offender the benefit of Exception 2 to Section 300.
The legal position on the subject is fairly well settled by a long G
line of decisions of this Court to which copious reference has
been made by Banumathi, J. No useful purpose would,
therefore, be served by referring to them over again. All that
need be said is that whether or not a right of private defence
of person or property was available to the offender is the very H
290          SUPREME COURT REPORTS                 (2015) 7 S.C.R.


A first question that must be addressed in a case of the preaent
  kind while determining the nature of the offence committed by
  the accused, whether or not a right of private defence was
  available to an offender is, in turn, a ~uestion of fact or atleast
  a mixed question of law and fact to be determined in the facts
B and circumstances of each individual case that may come up
  before the court.           \


            5. The High Court has, in the case at hand, clearly
      recorded a finding that the appellants were the aggressors in
C     the incident that led to the death of deceased-Girdhari Lal.
      Banumathi, J. has in the proposed order referred to the
      evidence supporting that finding. Once it is held that the Raj
      Singh and others were the aggressors and that the incident
      had taken place in the house of the complainant and not at the
D     house of the said appellants as alleged by them, there is no
      room for the appellants to claim the benefit of Exception 2 to
      Section 300 of the Code. That is so particularly when neither
      deceased-Girdhari Lal nor others examined as prosecution
      witnesses supporting the complainanfs case were armed. The
E     question whether the appellants exceeded the right of private
      defence does not, therefore, really arise for consideration.
      Since no such right was, in the facts and circumstances of the
      case, available to them, there was no question of their
F     exceeding the same.
          6. With the above words, I concur with the order proposed
      by my esteemed sister.

      Devika Gujral                               Appeals disposed of.
G