SEKAR @ RAJA SEKHARANversusSTATE REP. BY INSPECTOR OF POLICE, T. NADU

                     SEKAR @ RAJA SEKHARAN                                  A
                                   v.
         STATE R\'!:P. BY INSPECTOR OF POLICE, T. NADU

                          OCTOBER 3, 2002

               [ARJJIT PASAYAT AND S.B. SINHA, JJ.]                         B


        Penal Code, 1860-Sections 302, 304 Part I, Exception IV to Section
 300 and Sect/on 96-:-Murder and Culpable Homicide not amounting to
 murder-Right ofprivate defence-Availability of-Altercation between parties C
 developing Into assault leading to death of one person-Accused taking plea
 /hat assault made in exercise ofright ofprivate defence-Trial Court rejecting
 the plea, convicting accused under section 302 and sentencing him to life
 impr/sonmf!nt-Hlgh Court upholding conviction-On appeal held, courts below
 right in rejecting the plea since the accused inflicted a further blow on the
 deq(#ased. after deceased fell down-Since there was no pre-meditation and D
 assaults were given by the accused during the course of sudden quarrel, case
ffllls under exception IV to section 300 !PC, hence accused convicted under
 secti<;m J04 Part /--Sentence reduced to ten years imprisonment.

       Aocordlng to the prosecution one P impounded a sheep that was
clestroylng his crops. Appellant-accused and others untied it from the rope E
which led to exchange of hot words between P and appellant-accused. It
is 111leged that accused lnntcted blows to Pas a result of which he fell down.
Appellant-accused again Inflicted another blow on his neck which led to
his death. There were eye-witnesses to the occurrence. FIR was lodged.
Appellant-accused pleaded that he was falsely implicated and assaults were p
made In exercise of right of private defence. Trial Court placed reliance
on evidence of prosecution witnesses and convicted appellant-accused
under section 302 IPC. High Court upheld the conviction. Hence the
present appeal.

      Appellant contended that trial court and High Court brushed aside     G
the evidence of witnesses examined to substantiate the stand of right of
private defence; and that section 302 IPC was not applicable since as per
prosecution version assaults were made in course of a sudden quarrel.

      Respondent-State contended that after analysis of the factual H
                               .113
    114                      SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A   position, trial Court as well as High Court concluded that the accused was
    responsible for the death of the deceased and right of private defence was
    not available to the accused.

          Partly allo~ing the appeal, the Court

B          HELD: LI. To claim right of private defence extending to voluntary
    causing death, the accused must show that there were circumstances giving
    rise to reasonable grounds for apprehending that either death or grievous
    hurt would be caused to him. The burden is on the accused to show that
    he had a right of private defence which extended to causing of death.
c                                                           (118-H; 119-A-BI

          1.2. l\ plea of right of private defence canllilt be based on surmises
    and speculation. In order to find whether the right of private defence is
    available to an accused or not, it is not relevant whether he may have a
    chance to inflict severe and mortal injury on the aggressor. The entire
D   incident must be examined with care and viewed in its proper setting. 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. (118-E, F; 119-D-El

E         Muashi Ram v. Delhi Administration, AIR (1968) SC 702; State of
    Gujarat v Bai Fatima, AIR (1975) SC 1478; State of U.P v. Mohd Musheer
    Khan, AIR (1977) SC 2226; Mahindra Pal v. State of Punjab, AIR (1979)
    SC 577; Sa/ima Zia v. State of U.P. AIR (1979) SC 391; Lakshmi Singh v.
    State of Bihar, AIR (1976) SC 2263 and Jai Dev v. State of Punjab, AIR
p   (1963) SC 612, referred to.

          2.1'. In the instant case, in view of the evidence of prosecution
    witnesses implicating the accused, plea of the accused about his innocence
    cannot be accepti;d. In fact, the occurrence has been accepted but the plea
    was one of exercise of right of private defence. The plea relating to exercise
G   of right of private defence has been rightly rejected by the courts below
    since it is in evidence that accused dealt a further blow on the neck, after
    the deceased had fallen down after receiving blows on other parts of the
    body. (116-F, GI

          2.2.'There was an altercation between the accused and the deceased.
H
 SEKAR@RAIA SEKHARAN "·STATE REP. BY INSPECTOR OF POLICE, T. NADU [PASAYAT,J.] 115

There was no pre-meditation and the assaults were given by the accused               A
during the course of the sudden quarrel. Thus it brings the case within
the ambit of Exception IV to Section 300 IPC. Even otherwise, it appears
to be a case of accused exceeding the right of private defence. Therefore,
the accused is convicted under Section 304 Part I IPC. (119-E, F]

      2.3. While awarding the sentence, factor which weighed with this
                                                                                     B
Court was that the accused and deceased belonged to economically
distressed class; that they were illiterate daily wage earners; that they
fought over a sheep and the minimal damage done by it to the crops; that
there was no previous enmity and that a spur of the moment loss of
faculties led to the unfortunate occurrence. Therefore, the sentence is C
reduced to 10 years. (119-G, H; 120-A]

      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
I SS of 2002.

     From the Judgment and Order dated I5.10.1999 of the Chennai High                D
Court in Crl. A. No. 467 of I990.

      Ms. D. V. Padma Priya for the Appellant.

     A.V. Rangam, A. Ranganadhan, Buddy A. Ranganadhan, C.K.V. Dhruva E
and Ms. Revathy Raghavan for the Respondent.

      The Judgment of the Court was delivered by

      ARIJIT PASA YAT, J. The accused is in appeal before this Court
against judgment of the Madras High Court upholding his conviction for F
offence punishable under Section 302 of the Indian Penal Code, 1860 (in
short "IPC") and consequential sentence of imprisonment for life.

      The factual scenario as described by the prosecution need to be noted
in brief. On 19.8.1989, there was exchange of hot words over the release of
a sheep. Palaniswamy (hereinafter referred to as "the deceased") impounded G
the sheep which, according to him, was destroying his crops. Accused and
others went to the place where the sheep was tied and they untied it from the
rope. This led to exchange of words between the deceased and the accused.
When the deceased fell down after receiving injuries on his hand and left
shoulder, the accused again inflicted another blow on his neck. The occurrence H
    116 '                     SUPREME COURT REPORTS [2002) SUPP. 3 S.C.R.

A was witnessed by PW-I, PW-2 and PW-3. Information was lodged at the
  police Station and on completion of investigation, charge-sheet was placed
  and the accused faced trial. The accused took the plea of false implication
  and alternatively pleaded that the assaults were made in exercise of right of
  private defence. The trial court placing reliance on evidence of PW-I, PW-
  2 and PW-3 came to hold that the accused was responsible for the death of
B the deceased. Plea of the accused that the assaults were made in exercise of
  the right of private defence was not accepted, more particularly in view of
  the. fact that even after the deceased had fallen down, the accused inflicted
  a further blow on the neck.

C         In appeal, the High Court did not find any merit in the submissions
    made to the effect that this was a case which was clearly covered by the
    accused's exercise of right of private defence. Having rejected this stand of
    the accused, the High Court analysed the evidence to conc)ude that the
    conviction was justified.

D       Learned counsel for the appellant submitted that the evidence of
  witnesses examined to substantiate the stand of right of private defence has
  been lightly brushed aside by the trial cou11 and the High Court. The accepted
  prosecution version being that the assaults were made in course of a sudden
  quarrel, Section 302 !PC has no application. Learned counsel for the State of
E Tamil Nadu, on the other hand, submitted that after analysis of the factual
  position, the trial court as well as the High Court have come to conclude that
  the accused was responsible for the death of the deceased and this is not a
  case where the right of private defence can be pressed into service by the
  accused.

F       In view of the categorical evidence of PW-I, PW-2 and PW-3 implicating
  the accused, we find no reason to accept the plea of the accused about his
  innocence. In fact, the occurrence has been accepted but the plea was one of
  exercise of right of private defence. The plea relating to exercise of right of
  private defence has been rightly rejected by the courts below. It is in evidence
G that accused dealt a further blow on the neck, after the deceased had fallen
  down after receiving blows on other parts of the body.

        Section 96, !PC provides that nothing is an offence which is done in the
  exercise of the right of private defence. The Section does not define the
  expression 'right of private defence'. It merely indicates that nothing is an
H offence which is done in the exercise of such right. Whether in a particular
     SEKAR@RAJA SEKHARAN '" STATE REP. BY INSPECTOR OF POLICE, T. NADU [PASAYAT, J.] 117

    set of circumstances, a person acted iri the exercise of the right of private A
    defence, is a question of fact to be determined on the facts and circumstance
    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
                                                                                     B
    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 Section I05 of the Indian Evidence Act, 1872 (in
    short the 'Evidence Act') the burden of proof is on the accused, who takes
    the plea of self-defence, and, in the absence of proof, it is not possible for         c
    the Court to presume the truth of the plea of self-defence. The Court shall
    presume the absence of such circumstances. It is for the accused to place
    necessary material on record either by himself adducing positive evidence or
     by eliciting necessary facts from the witnesses examined for the prosecution.
     An accused taking the plea of the right of private defence is not required to D
    call evidence; he can establish his plea by reference to circumstances
J   transpiring from the prosecution evidence itself. The question in such a case
    would be a question of assessing the true effect of the prosecution evidence,
    and not a question of the accused discharging any burden. Where the right
    of private defence is pleaded, the defence must be a reasonable and probable
    version satisfying the Court that the harm caused by the accused was necessary E
    for either warding off the attack or for forestalling any further reasonable
    apprehension, from the attacker. The burden of establishing the plea of self-
    defence is on the accused and the burden stand discharged by showing
     proponderance of probabilities in favour of that plea on the basis of the
     material on record. See Muashi Ram v. Delhi, Administration, AIR (1968) F
     SC 702; State of Gujarat v. Bai Fatima, AIR (1975) SC 1478; State of U.P.
     v. Mohd. Musheer Khan, AIR (1977) SC 2226 and Mahindra Pal v. State of
    Punjab, AIR (1979) SC 577. Sections JOO and IOI 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 JOO to causing
                                                                                     G
    death if there is reasonable apprehension that death or grievous hurt would
     be the consequence of the assault. The oft-quoted observation of the Supreme
     Court in Salima Zia v. State 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 H
    118                       SUPREME COURT REPORTS (2002] SUPP. 3 S.C.R.

A           prosecution and that, while the prosecution is required to prove its
            case beyond reasonable doubt, the accused need not establish the plea
            to. the nllt and may discharge his onus by establishing a mere
            preponderance of probablliiies either by laying basis for that 1'lea in
            the cross-examination of the prosecution witnesses or by adducing
            defence evidence."
B
          The accused need not prove the existence of the right of private defen..:e
    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.

C        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 persons, a presumption must
  necessarily be raised that the accused persons had caused injuries in exercise
  of the right of private defence. The defence has to further establish that the
D 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
  cases where the injuries sustained by the accused are minor and superficial
E 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. (See
  Lakshmi Singh v. State of Bihar, AIR (1976) SC 2263). A plea of right of
  private defence cannot be based on surmises and speculation. While
p considering whether the right of private defence is available to an accused,
  it is not relevant whether he may have a chance to inflict severe and mortal
  injury on the aggressor. Jn 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
G person exercising the right; or (ii) of any other person; and the right may be
  exercised in the case of any offenc~ against the body, and in the case of
  offences of theft, robbery, mischief or criminal trespass, and attempts at such
  offences in relation to property. Section 99 lays down the limits of the right
  of private defence. Sections 96 and 98 give a right of private defence against
H certain offences and acts. The right given under Sections 96 to 98 and l 00
     SEKAR@RAJASEKHARAN 1·. STATE REP. BY INSPECTOR OF POLICE, T.NADU [PASAYAT,1.J ) ) 9

    to I06 is controlled by Section 99. To claim a right of private defence A
    extending to voluntary causing of death, ihe accused must show that there
    were circumstances giving rise to reasonable grounds for apprehending that
    either death or grievous hurt would be caused to him. The burden is on the
    accused to show that he had right of private defence which extended to
    causing of death. Sections 100 and IOI, IPC define the limit and extent of B
    right of private defence.

          Sections I02 and I05, IPC deal with commencement and continuance
    of the right of private defence of body and property respectively. The right
    commences, as soon as a reasonable apprehension of danger to the body
    arises from an attempt, or threat, or commit the offence, although the offence C
    may not have been committed, but not until that there is that reasonable
    apprehension. The right lasts so long as the reasonable apprehension of the
    danger to the body continues. In Jai Dev v. State of Punjab, AIR (1963) SC
    612, it was observed that as soon as the cause for reasonable apprehension
    disappears and the threat has either been destroyed or has been put to route,
    there can be no occasion to exercise the right of private defence.             D
J
           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
    injurie_} caused by the accused and the circumstances whether the accused
    had time to have recourse to public authorities are all relevant factors to be E
    considered.

          We notice that there was an altercation between the accused and the
    deceased. There was no pre-meditation and the assaults were given by the
    accused during the course of the sudden quarrel. This, according to us, brings
    the case within the ambit of Exception IV to Section 300 IPC. Even otherwise,          F
    this appears to be a case of accused exceeding the right of private defence.
    The appropriate conviction would, therefore, be under Section 304 Part I,
    IPC and custodial sentence of I0 years would meet the ends of justice.

           While awarding the sentence, one factor which has weighe~ with us is
    that two rustic villagers fought over a sheep which led to the death of one. G
    The social status of the accused and the deceased, which as the materials on
    record show is that of the lowest layer. They belonged to the economically
    distressed class; were illiterate daily wage earners. Their financial condition
    can be well gauzed from the fact that they fought over a sheep and the
    minimal damage done by it to the crops. There was no previous enimity. A H
    120                       SUPREME COURT REPORTS (200~] S!JPP. 3 S.C.R.

A spur of, the moment loss of faculties led to the unfortunate occurrence. This
    is certainly a relevant factor to be taken note of while 11warding the sentence.
    We, therefore, reduce the sentence to 10 years and if the accused has undergone
    the period of I0 years and is not required to be in custody in any other case,
    he shall be released forthwith.

B          The appeal is allowed to the extent indicated.

    N.J.                                                    Appeal partly allowed.