Supreme Court of India
RIZAN AND ANOTHERversusSTATE OF CHHATISGARH, THROUGH THE CHIEF SECRETARY, GOVT. OF CHHATISGARH, RAIPUR, CHHATISGARH
- Citation
- 2003 INSC 26
- Decided
- 21 January 2003
- Disposal
- Dismissed
- Bench
- SHIVARAJ V PATIL
Holding
The plea of private defence was not proved; the convictions under Sections 326 and 323 IPC stand.
Summary
The appellants Rizan and Duda were convicted for assaulting Jhanguram (PW‑2) and his wife (PW‑4) under IPC sections 326 and 323. They appealed, claiming the acts were in private defence, that related witnesses should be disbelieved, that the conviction was unsafe because four co‑accused were acquitted, and that the sentences were excessive. The Supreme Court examined the credibility of related witnesses, held that relationship alone does not vitiate testimony, and rejected the maxim “falsus in uno falsus in omnibus” as a rule of law. It found no evidence of any injury to the accused, no imminent threat, and no necessity for the assaults, thereby concluding that the plea of private defence was not proved. Consequently, the convictions and sentences were upheld and the appeal dismissed.
Issues considered
- The accused had established the plea of private defence under Sections 96, 97, 98, 100‑106 of the IPC.
- Whether the relationship of the witnesses to the accused affects their credibility.
- Whether the principle ‘falsus in uno falsus in omnibus’ can be used to discard the entire prosecution case.
- Whether acquittal of co‑accused on the same evidence mandates acquittal of the convicted appellants.
- Whether the sentences imposed were excessive given the lapse of time.
Legislation cited
- Indian Evidence Act, 1872s. 105
- Indian Penal Code, 1860s. 100, s. 101, s. 102, s. 105, s. 147, s. 148, s. 307, s. 323, s. 326, s. 34, s. 96, s. 97, s. 98
Subjects
private defenceburden of proofwitness credibilityevidentiary discrepanciesfalsus in uno falsus in omnibusconviction despite co‑accused acquittalsentencing
Judgment
RIZAN AND ANOTHER A
v.
STATE OF CHHATISGARH, THROUGH THE CHIEF SECRETARY,
GOVT. OF CHHATISGARH, RAIPUR, CHHATISGARH
JANUARY 2I, 2003
B
[SHIVARAJ V. PATIL AND ARIJIT PASAYAT, JJ.]
*'
Penal Code, J860:
Ss. 32 3 and 326-Conviction under by courts below rejecting plea of C
private defence by accused-On appeal, held-In the facts of the case plea of
private defence not proved-Hence conviction justified.
Sections 96, 97, 98, JOO and JOI-Right to private defence-Proof of-
Held, in order to find availability of private defence the injuries received by
the accused, the imminence of threat to his safety, the injuries caused by him D
and the circumstances whether the accused had time to have recourse to
public authorities are relevant factors to be considered-Exercise of private
defence is a question of/act-The burden to prove it is on the accused which
can be discharged by reference to circumstances transpiring from the
prosecution case-Separate calling of evidence not necessary-Court can E
consider its exercise even if it is not pleaded, if the same is available to be
considered from the material on record-Evidence Act, J872---Section JOS.
Criminal Trial:
Interested or related witness-Reliability on-Held, relationship is not F
a factor to affect credibility of a witness.
Natural discrepancy and material discrepancy in evidence-Distinction
between.
Non-explanation of injuries on accused-Effect of-Heid, mere non- G
explanation would not affect the prosecution case if the injuries are minor and
superficial and where evidence is creditworthy.
Maxims:
"Falsus in uno falsus in omnibus"-Applicability of-Held, has no
457 H
458 SUPREME COURT REPORTS [2003] I S.C.R.
A application in India-It is not a rule of law but merely a rule of caution-It
is not a mandatory rule of evidence. J..
Accused-appellants, along with 4 accused were prosecuted under
Sections 147, 148, 307 r/w Section 34 and Section 323 IPC. Prosecution
case was that there was bad blood between the accused and complainant
B party over certain properties and civil litigation was going on. When the
six accused were cutting the crop raised by PW2, he asked the accused
not to do so. Appellant-accused 'R' snatched the axe of PW2 and
assaulted him and his wife PW4 resulting in severalinjuries. Appellant-
accused 'D' also caused injuries to PWs 2 and 4 with a stick. Other
C accused also assaulted him, PW4 and his daughter-in-law PWS.
Trial Court convicted a·ppellant-accused 'R' u/s 326 IPC for causing
injury to PW2 and u/s 323 IPC for causing injury to PW4. Appellant-
accused 'D' was convicted under Section 323 IPC for causing injuries.to
the two witnesses. They were acquitted of the rest of the charges. Other
D 4 accused were acquitted of all the charges. High Court upheld the order
of trial court.
In appeal to this court appellants contended that injuries were caused
in exercise of right to private defence; that conviction of appellants did
not stand to reason since on the same set of evidence four other accused
E were acquitted; that the witnesses were related; and that the sentences
imposed were high and in view of the fact that occurrence took place five
years back, sentences be reduced to already undergone.
Dismissing the appeal, the Court
F HELD: t. Relationship is not a factor to affect credibility of a
witness. It is more often than not that a relation would not conceal actual .,..4.
culprit and make allegations against an innocent person. Foundation has
to be laid if plea of false implication is made. In such cases, the Court
has to adopt a careful approach and analyse evidence to find out whether
G it is cogent and credible. (464-EI
Dalip Singh and Ors. v. The State of Punjab, AIR (1953) SC 364; Gu/i
Chand and Ors., v. State of Rajasthan, (1974) 3 SCC 698; Vadivelu Thevar
v. State ofMadras, AIR SC 614; Masalti and Ors. v. State of UP., AIR (1965)
SC 202; State of Punjab v. Jagir Singh, AIR (1973) SC 2407 and Lehna v.
H State of Haryana, 2002 3 sec 761, relied on.
RIZAN v. STATE OF CHHA TISGARH 459
2.1. Even if major portion of evidence is found to be deficient, in A
case residue is sufficient to prove guilt of an accused, notwithstanding
acquittal of number of other co-accused persons, his conviction can be
maintained. It is the duty of Court to separate grain from chaff. Falsity
of particular material witness or material particular would not ruin it from
the beginning to the end. The maxim ''fa/sus in 11no fa/sus in omnibus" B
has no application in India and the witness cannot be branded as liar. The
maxim has not received general acceptance nor has this maxim come to
occupy the status of rule of law. It is merely a rule of caution. All that it
amounts to is that in such cases testimony may be disregarded and not
that it must be disregarded. The doctrine merely involved question of
weight of evidence which a Court may apply. in a given set of C
circumstances, but it is not what may be called 'a mandatory rule of
evidence'. [466-B-E[
Nisar Alli v. The State of Uttar Pradesh. AIR (1957) SC 366; Sohrab
slo Beli Navata and Anr. v. The State of Madhya Pradesh., [1972) 3 SCC. D
751 and Ugar Ahir and Ors. v. The State of Bihar, AIR (1965) SC 277,
referred to.
2.2. Merely because some of the· accused persons have been
acquitted, though evidence against all of them, so far as direct testimony
went, was the same does not lead as. a necessary corollary that those who E
have been convicted must also be acquitted. It is always open to a Court
to differentiate accused who had been acquitted from those who were
convicted. [466-E, F)
Gurucharan Singh and Anr. v. State of Punjab, AIR (1956) SC 460,
referred to. F
2.3. An attempt has to be made to separate grain from the chaff,
truth from falsehood. Where it is not ,.easible to separate truth from
falsehood, because grain and chaff are inextricably mixed up, and in the
process of separation an absolutely new case has to be reconstructed by G
divorcing essential details presented by the prosecution completely from
the context and the background against which they are made, the only
available course to be made is to discard the evidence in toto.
[467-A-C)
Zwinglee Ariel v. State of Madhya Pradesh. AIR (1954) SC 151 and H
460 SUPREME COURT REPORTS [2003] I S.C.R.
A Ba/aka Singh and Ors. v. The State of Punjab, AIR (1975) SC 1962, referred
to.
3. Normal discrepancies in evidence are those which are due to
normal errors of observation, normal errors of memory due to lapse of
time, due to mental disposition such as shock and horror at the time of
B occurrence and those are always there however honest and truthful a
witness may be. Material discrepancies are those which are not normal,
and not expected of a normal person. Courts have to label the category
to which a discrepancy may be categorized. While normal discrepancies
do not corrode the credibility of a party's case, material discrepancies do
C so. [467-D-E)
State of Rajasthan v. Smt. Kalki and Anr., AIR (1981) SC 1390, relied
on.
+
Krishna Mochi and Ors. v. State of Bihar etc., JT (2002) 4 SC 186;
D Gangadhar Bahera and Ors. v. State of Orissa, (2002) 7 Supreme 276,
referred to.
4.1. Whether in a particular set of circumstances, a person acted
in exercise of the right of private defence is a question of fact to be
determined on the facts and circumstances of such case. In determining
E this question of fact, the Court must consider all the surrounding
circumstances. It is not necessary for the accused to plead in so many
words that he acted in self-defence. If the circumstances show that the
right of private defence was l~gitimately exercised, it is open to the Court
to consider such a plea. In a given case the Court can consider it even if
F the accused has not taken it, if the same is available to be considered from
the material on record. [467-G, H; 468-A)
Salim Zia v. State of UP., AIR (1979) SC 391, relied on •
•
Munshi Ram and Ors. v. Delhi administration, AIR (1968) SC 702;
G State of Gujarat v. Bai Fatima, AIR (1975) SC 1478; State of UP. v. Mohd
Musheer Khan, AIR (1977) SC 2226 and Mohindar Pal Jolly v. State of
Punjab, AIR 2972 SC 577, referred to.
4.2. 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
H absence of proof, it is not possible for the Court to presume the truth of
,,
'
RIZAN v. STATE OF CHHA TISGARH 461
the plea of self-defence. The court shall presume the absence of such A
circumstances. An accused taking the plea of the right of private defence
is not required to call evidence: he can establish his plea by reference to
circumstances transpiring from the prosecution evidence itself. The
question in such a case would be a question of assessing the true effect of
the prosecution evidence, and, not a question of the accused discharging B
any burden. 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 the
side of the accused. The burden of establishing the plea of self-defence is
on the accused and the burden stands discharged by showing C
preponderance of probabilities in favour of that plea on the basis of the
material on record. The accused need not prove the existence of the right
of private defence beyond reasonable doubt. It is enough for him to show
as in a civil case that the preponderance of probabilities is in favour of
bis plea. [468-B-E)
D
4.3. The number of injuries is not always a safer criterion for
determining who the aggressor was. It cannot be stated as a universal
rule that whenever the injuries are on the body of the accused persons, a
presumption must necessarily be raised that the accused persons had
caused injuries in exercise of the right of private defence. The defence E
bas to further establish that the injuries so caused on the accused
probablises the version of the right of private defence. Non-explanation
of the injuries sustained by the accused at about the time of occurrence
or in the course of altercation is a very important circumstance. But mere
non-explanation of the injuries by the prosecution may not affect the
prosecution case in all cases. This principle applies to cases where the F
injuries sustained by the accused are minor and superficial or where the
evidence is so clear and cogent, so independent and disinterested, so
probable, consistent and credit-worthy, that it far outweighs the effect of
the omission on the part of the prosecution to explain the injuries.
[469-B-D) G
Lakshmi Singh v. State of Bihar, AIR (1976) SC 2263, referred to.
4.4. In the present case there was not even a single injury on the
accused persons, while PW2 sustained large number of injuries and was
hospitalized for more than a month. A plea of right of private defence
cannot be based on surmises and speculation. While considering whether H
.462 SUPREME COURT REPORTS · . [2003) I S.C.R.
A the right of private defence is· available to an accused, it is not relevant
_whether he may have a chance to inflict severe and mortal injury on the
aggressor. In order to find whether the right of private defence is available
to an accused, the entire incident must be examined with care and viewed
in its proper setting. (469-D-El
B 4.5; l_n order to find whether right of private defence is available or
not, the injuries received by the accused, the imminence of threat to his.
safety, the injuries caused by the accused and the circumstances whether
·the accused had time to have recourse to public authorities are all relevant
factors to be considered. [470-C-D) ·
c Biran Singh v. State of Bihar, AIR (1975) SC 871 and Sekhar@ Raja
Sekharan v. State represented by Inspector of Police, Tamil Nadu, (2002) 7
Supreme 124, relied on.
Jai Dev v. State of Punjab; AIR (19~3) SC61~, referred to.
D
5. The sentences imposed do ·n~t in anyway appear to be harsh.
Merely because the occurrence'took l>•ace sometime back, it cannot be a
factor to reduce the sentences. (470-E) ·
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
E 82/2003.
From the Judgment and Order dated 29.9.2000 of the High Court of
.. M.P .. in CRLA 510/89.
C.L. Sahu arid Ms. Hema Sahu for the Appellants.
. .
Prashant Kumar, Ms. Kamakshi and S. Mehlwal for the Respondents.
. .
The Judg.01ent of the Court was cielivered by
ARiJiT PASAYAT, J. Leave granted.·.···
G
Appellants call in que~tion legality of impugned judgment rendered by
the Madhya PtadeshHighCou:rtat Jabalour,whereby it upheld the conviction
and sentence awa~ded.by the Additional S~s~ions Judge, Jashpumagar.
. · · Pros~cution. version which l_ed to the trial of the appellants {hereinafter
H referred to as 'the accused' by their respective names) is as follows:
RIZAN v. STATE OF CHHATISGARH [ARIJIT PASAYAT, J.] 463
On 29.11.86 information was lodged by Jhanguram (PW-2) that six A
persons had assaulted him with intention to take his life, and had also caused
injuries to his wife Pandri Bai (P.W.4) and his daughter-in-law Tilobai (P.W.5).
On the basis of such information, the case was registered and investigation
was undertaken. On completion of investigation charge was framed for
commission of offences punishable under Sections 147, 148, 307 read with B
Section 34 and.Section 323 of the Indian Penal Code, 1860 (in short '!PC').
It was alleged that accused Khodhibai (since acquitted) and Pandri Bai (P.W.4)
are sisters. There was a bad blood between them over certain properties and
civil litigation was going on. The six accused persons were cutting the crops
raised by Jhanguram (P.W.2) on the date of the occurrence. When he asked
them not to do so, the accused persons did not pay any heed. Suddenly C
accused-appellant Rizan snatched the axe which Jhanguram (P.W.2) was
holding and assaulted him with the said weapon and caused several injuries
on different·parts of his body e.g. lips, hands and feet. More particularly,
accused-appellant. Duda hit Jhanguram and Pandri Bai with a stick. Other
accused persons also hit him with their hands and feet. Some persons standing
nearby came to their rescue. The injured P.Ws. 2, 4 and 5 were examined by D
the Doctor (PW-I). During investigation the weapon of assault i.e. axe was
seized from the accused-appellant, Rizan and some other weapons from the
other persons. Six witnesses were examined to further the prosecution version.
Accused persons pleaded innocence and false implication. On consideration
of the evidence on record, the Trial Court held that the prosecution has not E
been able to bring home the accusations against accused-Paras, Vinod,
Khodibai and Jaymala.
Accused-appellant Rizan was found guilty for the offences punishable
under Section 326 !PC for inflicting injuries on Jhangurarn (P.W.2) and·
under Sectio~ 323IPC for the injuri~s inflicted on Pando Bai (P.W.4). Accused F
Duda was found guilty for the offences punishable under Section 323 !PC for
inflicting injuries mi aforesaid two witnesses. However, both the ac~used
appel]ants Rizan arid.Duda were acquitted of the offences relatable to Sections·
147 and 148 !PC. I.I was also held that the offence committed by the accused
persons is not covered by Section 307 !PC. After hearing the accused persons G
on the question of sentence, accused-appellant, Rizan was sentenced to undergo
RI for two years arid two months· respectively for the o.ffence punishable
¥ under Sections 326 and 323 !PC. Both the sentences were directed to run
concurrently. Accused Duda was sentenced to undergo RI for two months. In
appeal, by the impugned judgment, the High Court dismissed the appeal
maintaining the convictions and the sentences. H
464 SUPREME COURT REPORTS (2003] 1 S.C.R.
A In support of the appeal, learned counsel for the accused-appellants
submitted that this is a case where the conviction is not maintainable as the !\._
injuries were inflicted by the accused-appellants while exercising their right
of private defence. Further on the same set of evidence four persons have
been acquitted and, therefore, so far as the appeflants are concerned, conviction
does not stand to reason. It is also submitted that the witnesses who claim to
B have seen the occurrence are witnesses who were in inimical ternis with the
accused-appellants. Residually, it is submitted that the sentences as imposed )--
are high, and considering the fact that the occurrence took place five years
back, the sentences should be reduced to what has already been undergone
which is stated to be about three months. It is pointed out that accused-
c appellant. Duda has already suffered the sentence awarded. Learned Counsel
for the prosecution on the other hand submitted that the evidence clearly
rules out application of the right of private defence. Merely because the
evidence of some of the witnesses has not been accepted to be fully reliable, -+
in view of the clear and categorical findings recorded that the evidence is
~ogent and credible so far as the appellants are concerned, the conviction
D does not suffer from any infirmity.
r•
We shall first deal with the contention regarding interestedness of the
witnesses for furthering prosecution version. Relationship is not a factor to
affect credibility of a witness. It is more often than not th!!t a relation would ~ I-
;-
E not conceal actual culprit and make allegations against an fonocent person. I
Foundation has to be laid if plea of false implication is made. In such cases,
the court has to adopt a careful approach and analyse evidence to find out
whether it is cogent and credible. \
In Dalip Singh and Ors. v. The State of Punjab, AIR (1953) SC 364 (
F it has been laid down as under:-
J..
~
"A witness is normally to be considered independent unless he or she
springs from sources which are likely to be tainted and that usually
means unless the witness has cause, such as enmity against the accused,
to wish to implicate him falsely. Ordinarily a close relation would be
G the last to screen the real culorit and falsely implicate an innocent
person. It is true, when feelings run high and there is personal cause
for enmity, there is a tendency to drag in an innocent person against
whom a witness has a grudge along with the guilty, but foundation
must be laid for such a criticism and the mere fact of relationship far
H from being a foundation is often a sure guarantee of truth. However,
RIZAN v. STATE OF CHHATISGARH [ARIJIT PASAYAT, J.] 465
we are not attempting any sweeping generalization. Each case must A
be judged on its own facts. Our observations are only mads to combat
what is so often put forward in cases before us as a general rule of
prudence. There is no such general rule. Each case must be limited
to and be governed by its own facts.
The above decision has since been followed in Gu/i Chand and Ors. v. B
State of Rajasthan, [1974] 3 SCC 698 in which Vadive/u Thevar v. State of
• Madras, AIR (1957) SC 614 was also relied upon.
We may also observe that the ground that the witness being a close
relative and consequently being a partisan witness, should not be relied upon
has no substance. This theory was repelled by this Court as early as in Dalip c
Singh 's case supra in which surprise was expressed over the impression
which prevailed in the minds of the Members of the Bar that relatives were
not independent witnesses. Speaking through Vivian Bose. J. it was observed:
"We are unable to agree with the learned Judges of the High Court
that the testimony of the two eyewitnesses requires corroboration. If
D
the foundation for such an observation is based on the fact that the
witnesses are women and that the fate of even men hangs on their
testimony, we know of such rule. If it is grounded on the reason that
they are closely related to the deceased we are unable to concur. This
is a fallacy common to may criminal cases and one which another E
Bench of this Court endeavoured to dispel in Ramoshwar v. State of
Rajasthan, AIR (1957) SC 54 at p.59). We find, however, that the
unfortunately still persists, if not in the judgments of the Courts, at
any rate in the arguments of counsel."
Again in Masa/ti and Ors. v. State of U.P., AIR (1965) SC 202 this F
Court observed; 202-210 para 14;
"But it would, we think, be unreasonable to contend that evidence
given by witnesses should be discarded only on the ground that it is
evidence of partisan or interested witnesses ....... The mechanical
rejection of such evidence on the sole ground that it is partisan would G
invariably lead to failure of justice. No hard and fast rule can be laid
down as to how much evidence should be appreciated. Judicial
~
approach has to be cautions in dealing with such evidence: put the
~ plea that such evidence should be rejected because it is partisan' cannot
be accepted as correct."
H
,, ...
~
~
466 SUPREME COURT REPORTS (2003) I S.C.R.
A ·To the same effect is.the decision i.n Staie of Punjab v. Jagir Singh,
AIR (1973) SC 2407 and Lebna v. State ofHaryana, (2002) 3 SCC .76.
._
Stress was laid by the accused-appellants· on the non-acceptance of
evidence tendered by some witnesses to contend about desirability to throw
out entire prosecution
.
case. In essence prayer
. is to apply the principle
. of
B ''fa/sus in uno falsus in omnibus" (false in one thing, false in everything).
This plea is clearly ufltenable. Even if major portion of evidence is found to
):
be deficient, in case residue is sufficient to "prove guilt of an accused,
notwithstanding acquittal of number of other co-accused persons, his conviciion
can be maintained. It is the duty of Court to separate yafrt. from chaff. Where
c chaff can be separatecl from grain, ·it would be open to the Court to convict
an accused notwithstanding the fact· that evidence has been found to be
deficient to prove guilt of other accused persons. Falsity of particular material
witness or material would not ruin it from the beginning to end. The maXim
in
''fa/sus in uno falsus in ominbu~" has no application India and the witnesses
+
cannot be branded as liar. The maxim ''falsus in uno falsus in omnibus" bas
D not received general acceptance nor has this maxim come to occupy the
status of rule of law. It is merely a.rule of caution. Allthat it amounts to, is
that in such case. testimony may be disregarded, and not that it must be
disregarded. The doctrine merely involves the question of weight of evidence
. which a Court may apply in a given set of circumstances, but it is not what +
E .may be called 'a mandatory rule of evidence'. See Nisar Alli v. The State of
. . /
Uttar fradesh, AIR (1957) SC 366. Merely because some of the accused
.
.. persons have been acquitted, though evidence against all of them, so far as
"direct testimony went, was the same does not lead as a necessary . corollary
that those who have been convicted must also be acquitted. It is always open
to a Court to differentiate accused who had been acquitted from those who
-F w~re convicted. See Gurucharan Singh and Anr. v. ·State of Punjab, AIR
(I 956) SC 460. The doctrine is a dangerous one specially in India for if a A
w"ole body of the testimony.were to be rejected, because witness was evidently
speaking an untruth in some aspect, it is· to be feared that. administration of.
·criminal justice would c9me to a dead-stop. Witnesses.just cannot help ·i~
giving embroidery to a story; however, true in the main. Therefore, it has to
G be appraised in eachcase as to what extent the evidence is. worthy of
acceptance, and merely because in some. respects the Court considers the
same to be insufficient for placing reliance on the testimony of a witness; it ~
does not necessarily follow as a matter of law that·it must be disregarded in
~
ail respects as well. The evidence has to be shifted with care. The afo~esaid
H dictum is not a sound rule for the reason that one hardly comes across a
RIZAN v. STATE OF CHHATISGARH [ARIJIT PASAYAT, J.] 467
/"\ witness whose evidence does not contain a grain of untruth or at any rate A
exaggeration, embroideries or embellishment. See Sohrab s!o Beli Nava/a
and Anr. v .. The State of Madhya Pradesh, (1972) 3 SCC 751 and Ugar Ahir
and Ors. v. The State of Bihar, AIR (1965) SC 277. An attempt has to be
made to •. as noted above, in terms of felicitous metaphor, separate grain from
the chaff, truth from falsehood. Where it is not feasible to separate truth from
falsehood, because grain and chaff are inextricably mixed up, and in the B
process of separation an absolutely new case has to be reconstructed by
divorcing -essential details presented by the prosecution completely from the
context and the background against which they are made, the only available
course to be made is to discard the evidence .in toto. See Zwingle Ariel v.
State of Madhya.Pradesh, AIR (1954) SC 15 and Ba/aka Singh andOrs. v. C
The State of Punjab AIR (1962). As observed by this Court in State of
-+ Rajasthan v. Smt. Kalki and Anr., AIR (1981) SC 1390, normal discrepancies
in evidence are those· which are due to normal errors of observation, normal
errors of memory due to lapse of time, due to mental disposition such as
shock and horror at the time of occurrence and those are always there however
honest and truthful a witness may be Material discrepanci.es are those which D
are not normal, and not expected of a normal person. Courts have to .label the
category to which a discrepancy may be categorized. While normal
discrepancies do not corrode the credibility of a party's case, material
discrepancies do so. These aspects were highlighted recently in Krishna Mochi
and Ors. v. Stale of Bihar, etc. JT (2002) 4 SC 186 Gangadhar Behera and E
Ors. v. Stale of Orissa. (2002) 7 Supreme 276. Accusations have been clearly
established against accused-appellants in the case at hand, The Courts below
have categorically indicated the distinguishing features in evidence so far as .
acquitted and convicted accused are concerned.
> Then comes plea relating to alleged exercise ofright of private defence. F
Section 96 IPC provides that nothing is an offence which .is done on the
exercise of the right of private defence. The Section does not define the
expression 'right of private defence.' It merely indicates that nothing is an
offence which is done in the exercise of such right. Whether in a particular
· set of circumstance, a person acted in th~ exercise of the right of private
defence is a question of fact to be determined on the facts and circumstances G
1,. of each case. No test in the abstract for determining such a question can be
laid down. In determining this question of fact, the Court must consider all
the surrounding circumstances. It is not necessary for the accused to plead in
so many words that he acted in self-defence. If the circumstances show that
the right of private defences was legitimately exercised it is open to the Court H
468 SUPREME COURT REPORTS [2003) I S.C.R.
A 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
A
material on record. Under Section l 05 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, 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
B circumstances. It is for the accused to place necessary material on record
either by himself adducing positive evidence or by eliciting necessary facts
~·
from the witnesses examined for the prosecution. An accused taking the plea
of the right of private defence is not required to call evidence: he can establish
his plea by reference to circumstances transpiring from the prosecution
c evidence itself. The question in such a case would be a question of assessing
the true effect of the. prosecution evidence, and not a question of the accused
discharging any burden. Where the right of private defence is pleaded, the
defence must be a reasonable and probable version satisfying the Court that
the harm caused by the accused was necessary for either warning off the
+
attack or for forestalling the further reasonaole apprehension from the side of
D the accused. The burden of establishing the plea of self-defence is on the
accused and the burden stands discharged by showing preponderance of
probabilities in favour of that plea on the basis of the material on record. See
Munshi Ram and Ors. v. Delhi Administration, AIR (1968) SC 702; State of
Gujarat v. Bal Fatima, AIR (1975) SC 1478; State of UP. v. Mohd. Musheer
E Khan, AIR ( 1977) SC 2226 and Mohinder Pal Jolly v. State of Punjab, AIR
(1979) SC 577). Sections l 00 to IO! 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 l 00 to causing death if there is
reasonable apprehension that death of grievous hurt would be the consequenc~
of the assault. The oft quoted observation of this Court in Salim Zia v. State
F of U.P., AIR (1979) SC 391, runs as follows:
,(
"It is true that the burden on an accused person to establish the
plea of self-defence is not as onerous as the one which lies on the
prosecution and that, while the prosecution is required to prove its
case beyond reasonable doubt, the accused need not establish the plea
G
to the hilt and may discharge his onus by establishing a mere
prepon9erance of probabilities either by laying basis for that plea in
the cross-examination of the prosecution witnesses or by adducing ;.t
defence evidence."
H The accus~d need not prove the existence of the right of private defence
...
RIZAN v. ATE OF CHHATISGARH [ARIJIT PASAYAT, I.] 469
beyond reasonable doubt. It is enough for him to show as in a civil case that A
Al the preponderance of probabilities is i'lt favour of his plea.
The number of injuries is not always a safe criterion for determining
who the aggressor was, it cannot be stated as a universal rule that whenever
the injuries are on the body of the accused person, a presumption must
necessarily be raised that the accused persons had caused injuries in exercise B
of the right of private defence. The defence has to further establish that the
~
injuries so caused on the accused probabilises the version of the right of
private defence. Non-explanation of the injuries sustained by the accused at
about the time of occurrence or in the course of altercation is a very important
circumstance. But mere non-explanation of the injuries by the prosecution
may not affect the prosecution case in all cases. This principle applies to
c
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 if far outweighs the effect of
the omission on the part of the prosecution to explain the injuries. See Lakshmi
Singh v. State of Bihar, AIR (1976) SC 2263. In this case, as the Courts D
below found there was not even a single injury on the accused persons, while
PW2 sustained large number of injuries and was hospitalized for more than
a month. 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
E
severe and mortal injury on the aggressor. In order to find whether the right
or 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 be exercised in the case of any offence against the F
A 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 limits of the right of private defence. Sections 96 and 98 give a right
of private defence against certain offences and acts. The right given under
Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim aright
of private defence extending to voluntary causing of death, the accused must
G
show that there were circumstances giving rise to reasonable grounds for
I(
apprehending that either death or grievous hurt would be caused to him. The
burden is on the accused to show he had a right of private defence which
extended to causing of death. Sections I 00 and IO I. !PC define the limit and
extent of right of private defence. H
470 SUPREME COURT REPORTS . [2003] I S;C.R.
A Sections 102 and 105. IPC deal withcommepc~ment and continuance
·. of the right of private defence of body and property resp~ctively. The right
commence; as soon as areasonable apprehension of danger to the body arises
from an attempt, or commit the offence, although the offence may not have
been committed but not until that there is that teasonable apprehension. The ·
B right lasts so Jong as the reasonable apprehension of the danger to the body
cohtinues. 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 priva~e defence.
,.
C In order to find whether right of private defence is available or not, the
injuries received by the accused, the imminence of threat to his safety, the
injuries caused by the accused and the circumstance whether the accused had
time to have recourse to public authorities are all relevant factors to be
considered. Thus, running to house, fetching a tabIi and assaulting the deceased
are by no means a matter of course. These acts bear stamp of a design to kill
D and take the case out of the purview Qf private defence. Similar view. was
expressed by this Court in Biran Singh' v. State of Bihar, AIR (1975) SC 87
and recently in Sekar@ Raja Bekharan v. State represented by lmpector of
Police Tamil Nadu, (2002) 7 Supreme 124.
Sentences imposed do not in any way appear to be harsh. Merely because
E the occurrence took place sometime back, same cannot be a factor to reduce
the sentences. The appeal is without merit and is dismissed.
K.K.T. Appeal dismissed.
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