Supreme Court of India
RAM PYARE MISHRAversusPREM SHANKER AND ORS.
- Citation
- 2008 INSC 962
- Decided
- 22 August 2008
- Disposal
- Appeal(s) allowed
- Bench
- ARIJIT PASAYAT
Holding
The accused did not establish a lawful claim of private defence; the right was exceeded and the conviction under Section 304 Part I IPC stands.
Summary
The case arose from a violent incident on 12 July 1978 in which two brothers, Prem Shanker and Hari Shanker, armed with a knife and a lathi, assaulted and caused the death of Mohan Mishra. The trial court convicted them under Section 302 read with Section 34 IPC, but the Allahabad High Court acquitted them on the ground of self‑defence. On appeal, the Supreme Court examined whether the accused had established a valid claim of private defence under Sections 96‑101 IPC and whether the burden of proof under Section 105 of the Evidence Act was discharged. The Court held that the medical and forensic evidence did not support the defence version, that the accused failed to show a reasonable apprehension of death or grievous hurt justifying lethal force, and that the right of private defence, if any, was exceeded. Consequently, the High Court’s acquittal was set aside and the respondents were convicted under Section 304 Part I IPC with an eight‑year sentence.
Issues considered
- The accused’s claim of right of private defence under Sections 96‑101 IPC
- Whether the burden of proof under Section 105 of the Evidence Act was discharged by the accused
- Whether the right of private defence, if existent, was exceeded
- Whether the High Court erred in interpreting the medical evidence and FIR
Legislation cited
- Indian Evidence Act, 1872s. 105
- Indian Penal Code, 1860s. 100, s. 101, s. 102, s. 302, s. 304, s. 34, s. 96, s. 97, s. 99
Subjects
private defenceself-defenceburden of proofSection 105 Evidence ActIPC Section 304murderconvictionappellate reviewmedical evidence
Judgment
[2008] 12 S.C.R. 497
·1
RAM PYARE MISHRA A
V.
PREM SHANKER AND ORS.
(Criminal Appeal No. 181 of 2001)
AUGUST 22, 2008
8
+ [DR. ARIJIT PASAYAT, P. SATHASIVAM AND AFTAB
c ALAM, JJ]
Penal Code, 1860:
· s. 304 (part l)rlw s.34 - Accused caused lathi and knife c
injuries to victim resulting in his death - Conviction by trial
court uls 302134 - Acquittal by High Court on plea of self-
defence - HELO: High Court wrongly interpreted the medical
evidence and overlooked ofher evidence - There was nothing
to substantiate right of private defence - Evidence is clear D
that though there might have been at some point of time
such right to accused, the same has been exceeded -
.-*
Evidence is clear that after the accused assaulted the
deceased and injured . the witnesses, they were beaten by
(·
villagers - Accused convicted uls 304 (part I). E
ss. 97 and 100-101 - Right of self-defence - HELO:
Burden of proof is on the accused who sets up the plea and.
defence must be a reasonable and probable version
satisfying the court that the harm caused by accused was
necessary for either warding off the attack or forestalling F
further reasonable apprehension - Burden .stands discharged
by showing preponderance of probabilities in favour of plea
on basis of material on record - In the instant case, there· •
was nothing to substantiate right of self-defence - Evidence
Ac;t, 1872 - s.105. G
'• - _J The accused-respondents, two brothers, armed with
lathi and knife, were stated to have attacked and killed
the brother of PW-1. PW-2, who rushed to rescue the
497 H
498 SUPREME COURT REPORTS [2008] 12 S.C. R.
A deceased, was also assaulted by the accused. The
incident was also witnessed by PW-1, PW-4 and some
others. One of the accused was apprehended at the spot
and handed over to the police along with the blood
stained knife. The defence version was that on the day
B of the incident one of the accused had· gone to throw
cow dung in their fields where he was assaulted by the +
deceased with lathi and, hearing his cries, the other
accused reached there with a spear to save him. The
trial court convicted the accused u/s 302 r/w s.34 IPC,
C but the High Court acquitted them on the plea of right of
self-defence.
In the instant appeals filed by the complainant as
also by the State, it was contended for the appellants
that the High Court acted on surmises and conjectures
D in accepting the plea of right of private defence; that
even otherwise, the High Court failed to examine the
question as to whether the right of private defence was
exceeded.
Allowing the appeals, the Court
E
HELD: 1.1 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 facts and circumstances of each case. In a given
F 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. [para 5] [506,H; 507,A; 507,B]
1.2 The right of private defence is .essentially a
defensive right circumscribed by the governing statute
G i.e. the IPC, available only when the circumstances clearly
justify it. It should not be allowed to be pleaded or availed i.- ,.
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 aggre:;s!on and
H not as retaliatory measure. A right to defend dces not
RAM PYARE MISHRA v. PREM SHANKER 499
AND ORS.
-t
include a right to launch an offensive, particularly, when A
the need to defend no longer survived. [para 12] [511,D-E]
Salim Zia v. State of UP AIR 1979 SC 391; Biran
Singh v. State of Bihar AIR 1975 SC 87; ltVassan Singh v.
State of Punjab (1996) 1 SCC 458, Sekar alias Raja
Sekharan v. State represented by Inspector of Police, TN. 8
+ 2002 (8) SCC; Butta Singh v. The State of Punjab AIR 1991
SC 1316; Vidhya Singh v. State of M.P AIR 1971 SC 1857;
and V Subramani and Anr. vs. State of Tamil Nadu 2005
(1 O) sec 358 - relied on.
c
Russel on Crime by Russel 11 th Edition Volume I -
referred to.
2.1 Under Section 105 of the Indian Evidence Act,
1872, the burden of proof is on the accused, who sets
up the plea of self-defence and, in the absence of proof, D
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. An accused taking the
plea of the right of private defence is not necessarily
required to call evidence; he can establish his plea by E
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. [para 5) [507,C-D; 507,D-E] F
) 2.2 Where the right of private defence is pleaded,
the defence must be a reasonable and probable version
satisfying the Court that the harm caused by the accused
was necessary for either warding off the attack or for
forestalling the further reasonable apprehension from G
the side of the accused. The burden of establishing the
~ -I
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. The accused need not prove the H
500 SUPREME COURT REPORTS [2008] 12 S.C.R.
~
A 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. [para 5] [507,F-G; 508,D-E]
Munshi Ram and Ors. v. Delhi Administration AIR 1968
B SC 702; State of Gujarat v. Bai Fatima AIR 1975 SC 1478;
State of UP v. Mohd. Musheer Khan AIR 1.977 SC 2226; +
and Mohinder Pal Jolly v. State of Punjab AIR 1979 SC 577
- relied on.
c 3. To claim a right of private defence extending to
voluntarily causing of death, the accused must show
that there were circumstances giving rise to reasona_ble
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
D
which extended to causing of death. [para, 6] [509,A-B]
Jaj Dev. v. State of Punjab AIR 1963 SC 612 - relied
on.
c-.
4.1 In the instant case, the High Court held that the
E
lathi injuries were there, but came to erroneous
conclusion that the injuries appear to have been inflicted
in a different manner. The High Court also came to a
conclusio'n that if the spear was used blunt injury could
not have been caused. Unfortunately, the High Court
F overlooked that the categorical finding recorded by the
trial Court was that one side of the weapon was blunt \.--
and other side was sharp and one blunt injury was
explaioed. The High Court appears to have wrongly
interpreted the opinion of the doctor. The genesis
G according to the High Court has not been established.
Thus, there was no question of exercise of right of
private defence. [para 14.. 15] [511,G-H; 512,A] l--
4.2 The High Court's conclusion as regards shifting
the onus on the prosecution is also without any legal
H
RAM PYARE MISHRA v. PREM SHANKER 501
AND ORS.
~
foundation. It is to be noted that nothing was found in A
the fields as was pleaded by the defence to substantiate
the right of private defence. The FIR was promptly
lodged. The doctor had opined. that the injury was
possible with knife but the High Court without any
discussion held otherwise. So far as the alleged non- B
explanation of injuries on the accused is concerned,
the High Court clearly overlooked the relevant materials.
From the evidence it is clear that after the accused
persons assaulted the deceased and the injured
witnesses, they were beaten by the villagers. In the FIR c
also there is mention about the beating given by villagers.
The High Court erred in holding that the details of the
assaults were not given in the FIR. [para 15] [512,B-D]
Chacko @ Aniyan Kunju and Ors. v. State of Kera/a
2004 (12) sec 269 - relied on. D
4.3 So far as non-explanation of superficial injuries
.Jf
on the accused persons is concerned, it will not affect
prosecution case where the evidence is clear and cogent
and outweighs the effect of the omission on the part of
prosecution to explain the injuries. [para 16] [513,F-Gl E
Anil Kumar v. State of UP 2004 (13) SCC 257 - relied
on
4.4 The basic question which was to be considered
by the High Court was that even if the right of private F
defence was exercised, whether that was exceeded. In
the instant case, the evidence clearly shows that though
there may be, at some point of time, that exercise of
right of private defence by the respondents existed, the
same has been exceeded. [para 17] [514,F] G
. ~j
5. The respondents are convicted of the offence
punishable under Section 304 (part I) IPC. Custodial
sentence of 8 years would meet the ends of justice. [para
17] [514,G]
H
502 SUPREME COURT REPORTS [2008] 12 S.C.R.
~
A Case Law Reference:
AIR 1968. SC 702 relied on para 5
AIR 1975 SC 1478 relied on para 5
AIR 1977 SC 2226 relied on para 5
B AIR 1979 SC 577 relied on para 5. ~-
AIR 1979 SC 391 relied on para 5
AIR 1963 SC 612 relied on para 7
AIR 1975 SC 87 relied on para 8
c (1996) 1 sec 458 relied on para 8
2002 (8) sec 354 relied on para 8
AIR 1991 SC 1316 relied on para 9
AIR 1971 SC 1857 relied on para 10
D
2005 (1 o) sec 358 relied on para 13
2004 (12) sec 269 relied on para 15 ·
~
2004 (13) sec 2s1 relied on para 16
E CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 181 of 2001
From the Judgment and final Order dated 19.5.2000 of
the High Court of Judicature at Allahabad in Criminal Appeal
No. 317 of 1983
F
WITH ~·
Cromianl Appeal No. 182 of 2001
Nagendra Rai, J.N. Dubey, Rajesh Pathak, Sanjay Dubey,
G Jayesh Gaurav, Najoj Prasad, Garvesh Kabra, Shrish Kr. Misra,
C.P. Pandey, Jatinder Kumar Bhatia, Anurag Dubey, Anu
t~
Sawhney, Meenesh Dubey, S.K. Divakar and S.R. Setia for
the appearing parties.
The Judgment of the Court was delivered by
H
RAM PYARE MISHRA v. PREM SHANKER 503
AND ORS. [DR. ARIJIT PASAYAT, J.]
;;r DR. ARIJIT PASAYAT, J. 1. Challenge in these appeals A
is to tile judgment of a Division Bench of the Allahabad High
Court accepting the appeal filed by the respondents who were
found guilty of offences punishable under Section 302 read with
Section 34 of the Indian Penal Code, 1860 (in short the 'IPC').
The High Court held that if on, taking overall view of the case s
right of self defence is made out or looks probable from the
evidence on record, that right should not be construed narrowly
because the right of self defence is a very valuable right and it
has a social purpose.
2. Background facts as projected by prosecution in a nut- C
shell are as follows:
The incident occurred on 12. 7.1978 at about 5.30 a .m.
The respondents 1 and 2 are brothers and sons of Sheo Balak
Misra. On the aforesaid date and time the accused respondents
0
armed with knife and lathi respectively arrived at the 'Gotha' of
the Mohan Mishra (hereinafter referred to as the 'deceased')
and accu~ed Hari Shanker started beating the deceased with
lathi and also asked his brother Prem Shanker to kill him, where-
upon Prem Shanker assaulted the deceased with knife. On
hearing the cries of deceased, his brother R.P. Mishra (PW-1) E
who was washing his hands at the Hand Pump installed in the
east of 'Gotha' of Ramakant Mishra, rushed to the scene of
occurrence. The cries also attracted Ramakant Mishra (P.W.2),
Suresh Mishra (P.W.4), Shiv Sahai and Vibhuti Mishra.
Ramakant Mishra tried to rescue the deceased but he too was F
assaulted by Prem Shanker with knife. Deceased fell down on
the ground. The witnesses succeeded in apprehending Prem
Shanker along with the knife with which he had assaulted the
,, deceased and Ramakant. However, accused Hari Shanker
succeeded in making good his escape. Thereafter Ram Pyare G
Mishra and other witnesses proceeded to Police Station Kotwali
along with Mohan Mishra and accused Prem Shanker on trac-
tor trolley of Gangotri Mishra. Before they could reach police
station, Mohan Mishra died on the way. R.P. Mishra (P.W.1)
prepared F.l.R. (Ex. Ka. I) in his own handwriting and presented H
504 SUPREME COURT REPORTS. [2008) 12 S.C.R.
~
A the same at Police Station Kotwali at 6.30 a.m. on the same
day, Prem Shanker and blood stained knife, (Ex.1) recovered
from him were handed over to police at the police station, in '-
....
respect of which memo Ex. Ka. 2 were prepared by Moharrir
(PW-6) who also prepared Check report .and registered the
B case in general diary. S.I. Harsh Nath Singh (PW-5) was present
at the police station when the F.l.R. was lodged. He took up ~
investigation and recorded the statement of first information at .,
the police station. S.I. Rad hey Shyam Tewari conducted inquest
on the dead body of Mohan Mishra, which had been brought to
c the police station by first informant and others. The dead body
was then sent for postmortem examination with constable Ram
Asrey .and Rang Nath. After recording the statements of Shiv
Sahai and Suresh Mishra (P.W.4), the Investigating Officer
reached the place of occurrence along with first informant and
witness Shiv Sahai. He made inspection of the scene of occur-
D
rence and prepared site plan Ex. Ka.13. The place wher~ blood
was found has been shown by letter 'A' in the site plan. Hari
Shanker was arrested on the same day. Injured Ramakant
Mishra was, however, interrogated on 13.7.1978 and after com- ~
pleting the investigation charge sheet Ex. Ka 15 was submitted
E against both the accused persons.
Dr. Vermpal conducted autopsy on the dead body of Mohan
Mishra on 12-7-78 at 12 noon and following ante mortem inju-
f
ries were found.
F 1. Incised wound 2" 1/4" x skin deep on right side
forehead 1" above the right eye ·brow and 1-1 /2" ·¥
away frorn right ear margins clean cut, gaping
present, blood clots present and wound was
horizontally placed.
G
2. Incised wound I" x 1/4" x muscle deep on middle of
, left arm margins clean gaping present, blood· clots L-
present.
3. Punctured wound 1-1/4" x 1/2" x chest cavity deep
H on right side chest 1" outer to mid line chest and 4"
-I RAM PYARE MISHRA v. PREM SHANKER 505
AND ORS. [DR. ARIJIT PASAYAT, J.]
~')(
away and above to right nipple, lying vertically, margins A
clean cut gaping present, blood clots present.
In the internal examination pleura was found congested
and ·cut underneath injury No.3, Right lung had also a cut
Mark 3/4" x 112'' pulmonary vessels had also been cut.
The chest cavity contained fresh blood about 520 ml. B
)
Stomach was empty while large intestines contained
gases and faecal matter. In the opinion of the doctor death
was due to shock and hemorrhage as a result of ante
mortem injuries. The postmortem report is Ex.Ka.4.
c
The motive for assaulting Mohan Mishra as alleged in the
first information report was that on 10-7-78 Prem Shanker had
made an attempt to have carnal intercourse with Rakesh, son
of deceased and Rakesh told this fact to his father. Deceased
accosted accused Prem Shanker whereupon the latter threat-,
D
ened him with dire consequences.
_J
Since the accused persons pleaded innocence, trial was
held. In order to substantiate the accusations six witnesses were
.+
produced. R.P. Mishra (PW-1) is the first informant and younger
brother of the deceased. Ramakant Mishra (PW-2) is an eye E
witness. It is to be noted that PW-1 was th~ injured witness. The
accused persons took the stand that on the date of occurrence
accused Prem Shanker went to throw cow dung in the field in
the morning and he was assaulted by Mohan Mishra with lathi.
On hearing his cries his younger brother Hari Shanker came F
there with spear in his hand to save Prem Shanker. He as-
-+ saulted the deceased.
As noted above, the trial Court found the evidence of eye
witnesses to be credible, cogent and recorded conviction. In
appeal, the High Court found substance in the plea of exercise G
of right of private defence and directed a~quittal.
..... j
Criminal Appeal No.181 of 2001 has been filed by the
complainant while State of U.P. has filed other Criminal Appeal
No.182 of 2001.
H
506 SUPREME COURT REPORTS [2008] 12 S.C.R.
· A 3. In support of the appeals, learned counsel for the appel-
lants submitted that the High Court has acted on surmises and
conjectures and has accepted the plea of exercise of right of
private defence. The,High Court's conclusion as regards non-
mention in the FIR that the witness managed to evade the lathi
B blow or about the ·injury on the accused are legally untenable.
The High Court has not examined the question as to whether
the right of private defence as claimed to have been exercised
has been exceeded. It was pointed out that the witness stated
about the assault by lathi but in the instant case the deceased
c does not appear to have received any lathi blow. Since lathi
was found at the spot as claimed the defence version, the High
Court probabilised that deceased had made an assault on ac-
cused Prem Shanker by lathi. The genesis and origin of the
occurrence has been suppressed and true facts have not been
presented. The High Court, it is submitted, accepted the plea
.o
of right of private defence but without any material to substanti-
ate the plea, the High, Court came to an abrupt conclusion that
the right has been exercised and the accused persons were
acting in self defence. The High Court also came to .a conclu- +
sion that the injuries on ·accused Prem Shanker were not satis-
E factorily explained. It was pointed out that those injuries were
superficial in nature. To similar effect is the stand taken by the
State.
4. Learned counsel for the accused respondents submit-
F ted that in the case of acquittal if two views are possible, the
view in favour of the accused has to be accepted. The High
Court on analyzing the evidence came to·a conclusion that the
' accused persons were exercising the right of private defence.
5. Only question which needs to be considered is the al-
G leged exercise of right of private defence. Section 96, IPC pro-
vides 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.
H Whether in a particular set of circumstances, a person legiti-
RAM PYARE MISHRA v. PREM SHANKER 507
AND ORS. [DR. ARIJIT PASAYAT, J.]
.)f mately acted in the exercise of the right of private defence is a A
question of fact to be determined on the facts and circumstances
of each case. No test in the abstract for determining such a
question can be laid down. In determining this question of fact,
the Court must consider all the surrounding circumstances. It is
not necessary for the accused to plead in so many words that B
,..(_
he acted in self·defence. If the circumstances show that the right
of private defence was legitimately exercised, it is open to the
Court to consider such a plea. In a given case the Court can
consider it even if the accused has not taken it, if the same is
available to be considered from the material on record. Under c
Section 105 of the Indian Evidence Act, 1872 (in short 'the Evi-
dence Act'), the burden of proof is on the accused, who sets up
the plea of self-defence, and, in the absence of proof, it is not
possible for the Court to presume the truth of the plea of self-
defence. The Court shall presume the absence of such circum-
D
stances. It is for the accused to place necessary material on
record either by himself adducing positive evidence or by elic-
iting necessary facts from the witnesses examined for the pros-
,.,.. ecution. An accused taking the plea of the tight of private de-
fence is not necessarily required to call evidence; he can es'-
tablish his plea by reference to circumstances transpiring from E
the prosecution evidence itself. The question in such a case
would be a question of assessing the true effect of the prosecu-
tion 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 F
-..J the Court that the harm caused by the accused was necessary
for either warding off the attack or for forestalling the further rea-
sonable apprehension from the side of the accused. The bur-
den of establishing the plea of self-defence is on the accused
and the burden stands discharged by showing preponderance G
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 Khan (AIR 1977
SC 2226), and Mohinder Pal Jolly v. State of Punjab (AIR 1979 H
508 SUPREME COURT REPORTS [2008] 12 S.C.R.. .__
t-
A SC 577). Sections 100 to 101 define the extent of the right of r:..
private defence of body. If a person has a right of private de- /
fence of body under Section 97, that right extends under Sec- L
tion 100 to causing death if there is reasonable apprehension
i
that death or grievous hurt would be the consequence of the ~
B assault. The oft quoted observation of this Court in Salim Zia v. ~
State of UP (AIR 1979 SC 391), runs as follows: ,k.
"It is true that the burden on an accused person to establish
the plea of self-defence is not as ·onerous as the one ~
~
. which lies on the prosecution and that, while the prosecution !
c 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 probabilit!es either by laying basis for
that plea in the cross-examination of the prosecution
D witnesses or by adducing defence evidence."
The accused need not prove the existence of the right of
private defence beyond reasonable doubt. It is enough for him
to show as in a civil case that the preponderance of probabili- ...,._
ties is in favour of his plea.
E
6. 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 f
whether he may have a chance to inflict severe and·mortal injury
F 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. 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
G
be exercised in the case of any offence against the body, and in
the case of offences of theft, robbery, mischief or criminal tres- {~
pass, and attempts at such offences in relation to property. Sec-
tion 99 lays down the limits of the right of private defence. Sec-
tions 96 and 98 give a right of private defence against certain
H
RAM PYARE MISHRA v. PREM SHANKER 509
AND ORS. [DR. ARIJIT PASAYAT, J.]
offences and acts. The right given under Sections 96 to 98 and A
100 to 106 is controlled by Section 99. To claim a right of pri-
vate defence extending to voluntarily causing of death, the ac-
cused must show that there were circumstances giving rise to
reasonable grounds for apprehending that either death or griev-
ous hurt would be caused to him. The burden is on the accused B
.){.
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.
7. Sections 102 and 105, IPC deal with commencement
and continuance of the right of private defence of body and prop- c
erty respectively. The right commences" as soon as a reason-
able 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 ap-
prehension. The right lasts so long as the reasonable appre- D
hension 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, there
can be no occasion to exercise the right of private defence. E
8. In order to find whether right of private defence is avail-
able 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 re-
course to public authorities are all relevant factors to be consid- F
ered. 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, TN. (2002 (8) SCC
354) . G
... __} 9. As noted in Butta Singh v. The State of Punjab (AIR
1991 SC 1316), a person who is apprehending death or bodily
injury cannot weigh in golden scales in the spur of moment and
in the heat of circumstances, the number of injuries required to
H
510 SUPREME COURT REPORTS [2008] 12 S.C.R.
A disarm the assailants who were armed with weapons. In mo-
ments of excitement and disturbed mental equilibrium it is often
difficult to expect the parties to preserve composure and use
exactly only so much force in retaliation commensurate with the
danger apprehended to him where assault is imminent by use.
B 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 pragmati-
cally viewed and not with high-powered spectacles or micro-
,
scopes to detect slight or even marginal overstepping. Due
r
c 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 re- .·-
action 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
0
original aggressor, even after the cause of reasonable appre-
hension has disappeared, the plea of right of privat~-defence
can legitimately be negatived.. The Court dealing with the plea
has to weigh the material to conclude whether the plea is ac-
ceptable. It is essentially, as noted above, a finding of fact.
E
10. The right of self-defence is a very valuable right, serv-
ing a social purpose and should not be construed narrowly. (See
Vidhya Singh v. State of M.P (AIR 1971 SC 1857). Situations
have to be judged from the subjective point of view of the ac-
F cused 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 ques-
tion as to whether more force than was necessary was used in
the prevailing circumstances on the spot it would be inappro-
G priate, as held by this Court, to adopt tests by detached objec-
tivity which would be so natural in a Court room, or that which
would seem absolutely necessary to a perfectly cool bystander.
The person facing a reasonable apprehension of threat to him-
self cannot be expected to modulate his defence step by step
with any arithmetical exactitude of only that much which is re-
H
RAM PYARE MISHRA v. PREM SHANKER 511·
AND ORS. [DR. ARIJIT PASAYAT, J.]
-.,.)!'
quired in the thinking of a man in ordinary times or under normal· A
circumstances.
11. In the illuminating words of Russel (Russel on Crime,
11 1h Edition Volume I at page 49):
;J._
· " .... a man is justified in resisting by force anyone who B
manifestly intends and endeavours by violence or surprise
to commit a known 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 c
danger is ended and if in a conflict between them he
happens to kill his attacker, such killing is justifiable."
12. The right of private defence is essentially a defensive
right circumscribed by the governing statute i.e. the IPC, avail-
able only when the circumstances clearly justify it. It should not D
be allowed to be pleaded or availed as a pretext for a vindic-
tive, aggressive or retributive purpose of offence. It is a right of
defence, not of retribution, expected to repel unlawful aggres-
sion and not as retaliatory measure. While providing for exer-
cise of the right, care has been taken in IPC not to provide and E
has not devised a mechanism whereby an attack may be a pre-
tence for killing. A right to defend does not include a right to
launch an offensive, particularly when the need to defend no
longer survived.
13. The above position was highlighted in V Subramani F
and Anr. vs. State of Tamil Nadu (2005 (10) SCC 358).
14. In the instant case the High Court held that the lathi
injuries were there but came to erroneous conclusion th,at the
injuries appear to have been inflicted in a different manner. The
G
..... ~~
High Court also came to a conclusion that if the spear was used
blunt injury could not have been caused.
15. ~nfortunately, the High Court overlooked that the cat-
egorical finding recorded by the trial Court was that one side of
the weapon was blunt and other side was sharp and one blunt H
512 SUPREME COURT REPORTS [2008) 12 S.C.R.
A injury was explained. The High Court appears to have wrongly
interpreted the opinion of.the doctor. The genesis according to
the High Court has not been established. If that be so, there
was no question of exercise of right of private defence. The
High Court's conclusion as regards~shifting the onus on the pros-
B ecution is also without any legal foundation. It is to be noted
that nothing was found in the field as was pleaded by the de-
fence to substantiate the right of private defence. The FIR was
promptly lodged. The doctor had opined that the injury was pos-
sible with knife but the High Court without any discussion held
c otherwise. So far"as the alleged non-explanation of injuries on
the accused aspect is concerned, the High Court clearly over-
looked the relevant materials. From the evidence it is clear that
after the accused persons assaulted the deceased and the in-
jured witnesses they were beaten by the villagers~ In the FIR
, also thete is mention about the beating given by villagers. The
0
High Court held that the details of the assaults were not give·n in
the FIR. In this context, the view expressed by this Court in
Chacko @ Aniyarr Kunju and Ors. v. State of Kera/a (2004
(12) sec 269) needs to be noted. hi paras 7 and 8 it was
observed as follows:
E
"7. Coming to the question whether on the basis of a
solitary evidence conviction can be maintained. A bare
reference of Section 134 of the Indian Evidence Act, 1872
(in short 'the Evidence Act') would suffice. The provision
F clearly states that no particular- number of witnesses is
required to establish the case. Conviction can be based
on the testimony of single witness if he is wholly reliable.
Corroboration may be necessary when he is only partially
reliable. If the evidence is unblemished and beyond all
possiqle criticism and the Court is satisfied that the witness
G
was spe~king the truth then on his evidence c;ilone
conviction can be maintained. Undisputedly, there were
injuries found on the body of the accused persons on
medical evidence. That per se cannot be a ground to
totally discard the prosecution version. This is a factor
H
RAM PYARE MISHRA v. PREM SHANKER 513
AND ORS. [DR. ARIJIT PASAYAT, J.]
which has to be weighed along with other materials to see A
whether the prosecution version is reliable, cogent and
trustworthy. When the case of the prosecution is supported
by an eyewitness who is found to be truthful, as well, mere
non-explanation of the injuries on the accused persons
cannot be a foundation for discarding the prosecution s
version. Additionally, the dying declaration was found to
be acceptable.
8. Other plea emphasized related to alleged exercise of
right of private defence. Merely because there was a
quarrel and two accused persons sustained injuries, that C
does not confer a right of private defence extending to the
extent of causing death as in this case. Though such right
cannot be weighed in golden scales, it has to be
established that the accused persons were under such
grave apprehension about the safety of their life and D..
property that retaliation to the extent done was absolutely
necessary. No evidence much less cogent and credible
._,. was adduced in this regard. The right of private defence
as claimed by the accused persons have been rightly
discarded." E
16. So far as non-explanation of superficial injuries on the
accused persons is concerned, in Anil Kumar v. State of U.P
(2004 (13) sec 257), it was held as follows:
"Non-explanation of injuries by the prosecution will not F
affect prosecution case where 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 creditworthy, that it outweighs
the effect of the omission on the part of prosecution to
explain the injuries. As observed by this Court in Ramlagan G
Singh v. State of Bihar (AIR 1972 SC 2593) prosecution
is not called upon in all cases to explain the injuries
received by the accused persons. It is for the defence to
put questions to the prosecution witnesses regarding the
H
514 SUPREME COURT REPORTS [2008] 12 S.C.R.
'\~
A injuries of the accused persons. When that is not done,
there is no occasion for the prosecution witnesses to
explain any injury on the person of an accused. In Hare
krishna Singh and Ors. v. State of Bihar (AIR 1988 SC
863), it was observed that the obligation of the prosecution
B to explain the injuries sustained by the accused in the
same occurrence may not arise in each and every case.
In other words, it is not an invariable rule thatthe prosecution
has to explain the injuries sustained by the accused in the
same occurrence. If the witnesses examined on behalf of
c the prosecution are believed by the Court in proof of guilt
of the accused beyond reasonable doubt, question of
obligation of prosecution to explain injuries sustained by
the accused will not arise. When the prosecution comes
with a definite case that the offence has been committed
by the accused and proves its case beyond any reasonable
D
doubt, it becomes hardly necessary for the prosecution to
again explain how and under what circumstances injuries
have been inflicted on the person of the accused. It is
more so when the injuries are simple or superficial in
nature. In the case at hand, trifle and superficial injuries
E on accused are of little assistance to them to throw doubt
on veracity of prosecution case. (See Surendra Paswan
v. State of Jharkhand (2003) 8 Supreme 476)."
17. The basic question which was to be considered by
F the High Court was that even if the right of private defence was
+...-
exercised, whether that was exceeded. In the instant case, the
evidence clearly shows that though there may be at some point
of time the exercise of right of private defence by the respon-
dents existed, the same has been exceeded. The respondents
are therefore convicted of offence punishable under Section 304
G
Part I IPC. Custodial sentence of 8 years would meet the ends l_ ~
of justice. The appeals are allowed to the aforesaid extent. The
respondents who are on bail shall surrender to custody forth-
with to serve the remainder of sentence.
H R.P. Appeals allowed.
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