Holding

Unexplained minor injuries on the accused do not, by themselves, invalidate the prosecution's case, and the burden of proving private defence rests on the accused and must be satisfied on a pre‑ponderance of probabilities; therefore the convictions stand.

Summary

The appellants, a group of five men, were convicted for the murder of Abdul Samad and for causing injuries to two eyewitnesses under Sections 302, 324 and 34 of the IPC. The High Court altered one conviction from Section 302 to Section 304 (II) but upheld the others. On appeal, the accused argued that the prosecution failed to explain the minor injuries found on them and that a plea of private defence, which the lower courts had partially accepted, should have led to acquittal. The Supreme Court held that unexplained injuries, when minor and superficial, do not by themselves defeat the prosecution case, especially where the evidence is clear, cogent and credible. It further clarified that the burden of proving private defence lies on the accused and must be established on a pre‑ponderance of probabilities; mere injuries on the accused do not create a presumption of self‑defence. Consequently, the convictions were affirmed and the appeal dismissed.

Issues considered

The effect of the prosecution's failure to explain minor injuries on the accused on the strength of the prosecution case.
Whether a plea of private defence can be inferred from the presence of injuries on the accused and what burden of proof applies.
The appropriateness of modifying the conviction from murder (Section 302) to culpable homicide not amounting to murder (Section 304 Part II) in the facts of the case.

Legislation cited

Indian Evidence Act, 1872s. 105
Indian Penal Code, 1860s. 100, s. 101, s. 102, s. 105, s. 302, s. 304 Part II, s. 323, s. 324, s. 34, s. 96, s. 97, s. 98, s. 99

Subjects

private defenceself-defencenon-explanation of injuriesburden of proofIPC Section 302IPC Section 304 Part IIIPC Section 324evidence actmurder convictionappeal dismissed

Judgment

A SHAHJAJHAN AND ORS.
v.
STATE OF KERALA AND ANR.

FEBRUARY 26, 2007

B [DR. ARIJIT PASAYAT AND R.V. RAYEENDRAN, JJ]

Penal Code, 1860-Sections 34, 97, JOO, JOI, 302, 304, 323 & 324- ,,..
Evidence Act, 1872-Section 105-Conviction of accused for murdering
deceased and injuring two eyewitnesses-Plea of non-explanation by
c prosecution of Injuries on the accused and the exercise of right of private
defence-Held, on facts, injuries on the accused are minor and superficial
and hence, non-explanation of the injuries would not weaken the procecution
case-Right of exercise of Private defence cannot be presumed on basis of
injuries on the accused unless proved by the defence-Hence, conviction of
D the accused upheld.

A charge-sheet was filed by procecution before trial court against five
accused for offences punishable under Sections 302 and 324 read with section
34 IPC for murdering the deceased and causing injuries on two eyewitnesses.
·-
-I
The trial Court convicted an accused under Sections 302 and 324 IPC and
E the remaining accused under Section 323 read with section 34 IPC. High
Court, in appeal, modified the conviction of the accused from under section
302 IPC to one under Action 304 part II IPC and confirmed the other
conviction and confirmed the conviction of other accused.

In appeal to this Court, appellants-accused contended that the
F prosecution case should be rejected due to non-explanation of the injuries on
the accused; and that their conviction cannot be maintained when the exercise
of private defence was partly accepted by the Courts below.

Dismissing the appeal, the Court
G HELD: 1.1. Non-explanation of the injuries sustained by th accused may
assume greater importance where the defence gives a version which competes
in probability with that of the prosecution. But where the evidence is clear, .
"" ...
cogent and creditworthy and where the Court can distinguish the truth from
falsehood, the mere fact that the injuries are not explained by the prosecution
H 212
SHAHJAJHAN v. ST ATE OF KERALA 213
cannot by itself be a sole basis to reject such evidence. [Para 14) A
Mohar Rai and Bharath Rai v. The State of Bihar,[1968) 3 SCR 525;
Lakshmi Singh & Ors. v. State of Bihar, [1976] 4 SCC 394 and Vijayee Singh
& Ors. v. State of U.P., AIR (1990) SC 1459, referred to.

1.2. Non-explanation of injuries by the prosecution will not affect the B
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 omission on the part of the prosecution to explain the injuries. It is
not an invariable rule that the prosecution has to explain the injuries sustained
by the accused in the same occurrence. It is for the defence to put questions c
to the prosecution witnesses regarding the injuries of the accused persons.
Trifling and superficial injuries on accused are of little assistance to them to
throw doubt on the veracity of the prosecution case. A bare perusal of the
injury report shows that injuries were of very minor nature. The stand of the
accused was that he was attacked is ruled out by the nature of the injuries. D
Further, there was no case instituted against the deceased or prosecution

- . witnesses. [Paras 15 and 16] (217-G, H; 218-A-B-C-D-E]

Ramlagan Singh v. State of Bihar, AIR (1972) SC 2593; Hare Krishna
" Singh & Ors. v. State of Bihar, AIR (1988) SC 863; Surendra Paswan v. State
ofJharkhand, [2003) 8 SCC 476 and Anil Kumar v. State of UP. JT (2004) 8 E
SC 355, referred to.

2.1. 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. F
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. 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 G
had caused injuries in exercise of the right of private defence.
[Paras 17 and 18] (219-C-D; 220-A]
y ".., '

2.2. The right of private defence is essentially a defensive right
circumscribed by IPC, available only when the circumstances clearly justify
it It should not be allowed to be pleaded or availed as a pretext for a vindictive, H
214 SUPREME COURT REPORTS [2007) 3 S.C.R.

A aggressive or retributive purposes of offence. It is a right of defence, not of
retribution, expected to repel lawful aggression and not as retaliatory measure.
While providing for exercise of the right, care has been taken in IPC not to
provide and has not devised a mechanism whereby an attack may be a pretence
for killing. A right to defend does not include a right to launch an offensive,
B particularly when the need to defend no longer survived. !Para 24] (222-E-F]

Munshi Ram & Ors. v. Delhi Administration, AIR (1968) SC 702; State
ofGujarat v. Bai Fatima, AIR (1975) SC 1478; State of U.P. v. Mohd Musheer
Khan, AIR (1977) SC 2226; Mohinder Pal Jollyv. State ofPunjab, AIR (1979)
SC 577; Salim Zia v. State of U.P., AIR (1979) SC 391; Lakshmi Singh v. State
C ofBihar, AIR (1976) SC 2263; Biran Singh v. State of Bihar, AIR (1975) SC
87; Wassan Singh v. State of Punjab, [1996] 1 SCC 458; Sekar@ Raja
Sekharan v. State Rep. by Inspector ofpolice, T.N., [2002] 8 SCC 354; Buta
Singh v. State of Punjab, AIR (1991) SC 1316; Vidhya Singh v. State ofMP.,
AIR (1971) SC 1857 and State ofMP. v. Ramesh, [2005] 9 SCC 705, referred
to.
D
Russel on Crime, I Ith Edition Volume I, referred to. .,.L

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 262 of
t ·-
2007. 1

E From the Judgment and Final Order dated 20.1.2006 of the High Court
of Kerala at Emakulam in Crl. A. No. 468/1997.

Shabu Sreedharan, R. Satish and Abhilash S. Francis for the Appellants.

G. Prakash for the Respondents.
F
The Judgment of the Court was delivered by

DR. ARIJIT PASA YAT, J. I. Leave granted.

2. The appellants call into question the legality of the judgment rendered
by a Division Bench of the Kerala High Court while partially altering the
G
conviction of Nujum (Appellant no.2) who is, hereinafter referred to for the
sake of convenience as A2 and maintaining the conviction of Shajahan
(appellant no. I for short Al), Manzoor (A3) and Musthafa (Appellant No.4
,."' ...
for short A-4) under Section 323 read with Section 34 !PC. A-2 was convicted
in terms of Section 304 Part II of the Indian Penal Code, 1860 (in short the
H '!PC') instead of Section the conviction under Section 302 !PC by the trial
SHAHJAJHANv. STATEOFKERALA[PASAYAT,J.] 215
Court, and sentenced to undergo rigorous imprisonment for five years. The A
conviction of A2 and the sentence for offence, punishable under Section 324
Part I !PC, was not interfered with.

3. The prosecution version as unfolded during trial was as follows:

4. The accused who are closely related to each other were harbouring B
extreme enmity towards Ashraf(PW-5) and his youger brother Abdul Samad
(hereinafter referred to as 'deceaed'). On 18.9.1994 at or about 1.50 P.M. at
Kulasekharapuram in Adinadu Village, Punnakulam Muri and to the South of
Puthentheruvu junction near the eastern boundary of the paramba of Laila,
(the sister of PW5 and the deceased) accused in furtherance of their common
intension to voluntarily cause hurt to the aforesaid brothers with dangerous C
weapons attacked them. A I pulled the deceased by catching hold of his legs,
Nujum-A2 stabbed him with M.0.1 knife, A4 cut him with M.0.2 chopper.
When PW5 intervended to rescue the deceased, Musthafa-A4 inflicted a cut
injury on PW5 with M.0.2 chopper, A2 inflicted a stab injury on Shuhra Beevi
(PW!) with M.0.1 knife and Manzoor-A3 assaulted PW5 using his hands. D
The dw~ased succumbed to the injuries and injured PW5 was admitted in the
hospital. The accused thereby committed offences punishable under Sections
302 and 324 read with Section 34 IPC.

5. The allegations against them were as follows:-
E
6. Shajahan-A I had caught hold the legs of the deceased facilitating A2
for stabbing him. A2 not only stabbed the deceased but also inflicted injuries
on PW!. Manzoor-A3 assaulted the deceased. Musthafa-A4 assaulted the
deceased with the chopper and also caused injury on PW-5.

7. On considering the evidence of the witnesses more particularly the F
i:.- evidence of PW-I and PW-5 the accused persons were found guilty as
follows:

8. A2 was guilty of offence punishable under section 302 and section
324 IPC. Al, A3 and A4 were guilty for offences punishable under Section G
323 read with Section 34 IPC. A3 was a student and was released on probation
for the conviction under Section 323 IPC.
r i

9. In appeal, the High Court held that the accusations were established
so far as A I, A3 and A4 are concerned. It further held that it would be
appropriate to convict A2 for offence punishable under Section 304 Part II IPC H
216 SUPREME COURT REPORTS (2007] 3 S.C.R.

A instead of Section 302 IPC and custodial sentence of five years was awarded.
The sentence awarded to A2 in respect of Section 324 IPC was !Ilaintained.

I0. In support of the appeal, learned counsel for the appellant submitted
that the injuries on the accused were not explained. The investigating officer
accepted that there were injuries but he did not focus the investigation on
B that aspect. Once the exercise of right of private defence was partially accepted,
the conviction as reorded cannot be maintained.

11. Learned counsel for the appellants submitted that the incident took
place in the property of the accused and the High Court accepted that up to
C a certain extent the right of private defence was exercised. But the High Court
wrongly observed that the appellants continued the attack. Same is wrong as
according to the factual position only one blow was given.

12. Learned counsel for the respondent-State on the other hand
supported the impugned judgment.
D 13. It is to be noted that during the pendency of the appeal appellant
No. I has expired. So the appeal stands abated so far as he is concerned.
Appellant No. 3 i.e. Musthafa has already suffered the sentence and the
appeal is not pressed so far as he is concerned. ...
E 14. We shall first deal with the question regarding non-explanation of
injuries on the accused. The issue is if there is no Such explanation what
would be its effect? We are not prepared to agree with the learned counsel
for the defence that in each and every case where preocecution fails to explain
the injuries found on some of the accused, the prosecution case should
automatically be rejected, without any further probe. In Mohar Rai and
F Bharath Rai v. The State of Bihar, [1968] 3 SCR 525, it was observed:

" .. .In our judgment, the failure of the procecution to offer any
explanation in that regard shows that evidence of the procecution
witnesses relating to the incident is not true or at any rate not wholly
true. Further those injuries probabilise the plea taken by the appellants."
G
In another important case Lakshmi Singh and Ors. v. State of Bihar, (1976]
4 SCC 394, after referring to the ratio laid down in Mohar Rai 's case (supra),
this court appeal:

"where the procesution fails to explain the injuries on the accused,
H two results follow:
SHAHJAJHANv. STATEOFKERALA[PASAYAT,J.) 217
(I) that the evidence of the prosecution witnesses is untrue; and A
..f
(2) that the injuries probabilise the plea taken by the appellants."

It was further observed that:

"In a murder case, the non-explanation of the injuries sustained by the
accused at about the time of the occurance or in the course of B
altercation is a very important circumstance from which the Court can
draw the following inferences:

(I) that the procecution has suppressed the genesis and the
origin of the occurance and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the
c
injuries on the person of the accused are lying on a most material
point and, therefore, their evidence is unreliable;

(3) that in case there is a defence version which explains the
injuries on the person of the accumes much greater importance where D
the evidence consists of interested or inimical witnesses or where the
defence gives a version whic1' competes in probability with that of the
> .,
prosecution one."
,. But non-explanation of the injuries sustained by the accused may assume
greater importance where the defence gives a version which competes in E
probability with that of the prosecution. But where the evidence is clear,
cogent and creditworthy and where the Court can distinguish the truth from
falsehood the fact that the injuries are not explained by the prosecution
cannot by itself be a sole basis to reject such evidence, and consequently
the whole case. Much depends on the facts and circumstances of each case.
These aspects were highlighted by this Cort in Vijayee Singh and Ors. v. F
State of U.P., AIR (1990) SC 1459.

15. Non-explanation of injuries by the prsecution will not affect the
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 creditrworthy, that it outweighs the G
effect of the omission on the part of prosecution to explain the injuries. As
observed by this Court in Ramlagan 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 deference to put questions to the
prosecution witnesses regarding the injuries of the accused persons. When H
218 SUPREME COURT REPORTS (2007) 3 S.C.R.

A 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 to explain the injuries sustained by the accused in the same
occurrance may not arise in each and every case. In other words, it is not an
B invariable rule that the prosecution has to explain the injuries sustained by
the accused in the same occurane. If the witnesses examined on behalf of 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
C proves its case beyond any reasonable 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, triiling and
superficial injuries on accused are of little assistance to them to throw doubt
on the veracity of the prosecution case. (See Surendra Paswan v. State of
D Jharkhand, (2003) 8 Supreme 476) and Anil Kumar v. State of U.P., JT (2004)
8 SC 355).

16. A bare perusel of the injury report shows that injuries were of very ' ..
minor nature. The stand of the accused was that he was attaked by an iron
E rod but the injuries ruled out that stand. It is fairly conceded that there was
no case instituted against the deceased or prosecution witnesses.

17. The only other question which needs to be considered, is the
alleged exercise of right of private defence. Section 96, IPC provides that
nothing is an offence which is done in the exercise of the right of private
F 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. \'lhether 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. No test in the
abstract for determining such a question can be laid down. In determining this
G 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 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,
H if the same is available to be considered from the material on record. Under
SHAHJAJHANv. STATEOFKERALA[PASAYAT,J.] 219

Section I05 of the Indian Evidence Act, 1872 (in Short 'the burden Evidence A
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 circumstances. It is for the accused to place necessary
material on record either by himself adducing positive evidence or by eliciting B
necessary facts from the witnesses examined for the prosecution. An accused
taking the plea of the right of private defence is not necessarily 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 any burden. Where the right C
of private defence is pleaded, the defence must be a reasonable and probable
version satisfying the Court that the harm caused was necessary for either
warding off the attack or for forestalling the futher reasonable apprehension
from the side of the acussed. The burden of establishing the plea of self-
defence is on the accused and the stands discharged by showing
preponderence of probabilities in favour of that plea on the basis of the D
material on record. (See Munshi Ram and Ors. v. Delhi Administration, AIR
.., (1968) SC 702, State a/Gujarat v. Bai Fatima, AIR (1975) SC 1478, State of
U.P. v. Mohd. Musheer Khan, AIR (1977) SC 2226, and Mohinder Pal Jolly
v. State of Punjab, AIR (1979) SC 577 Sections JOO and IOI deifne the extent
of the Right of private defence of body. If a person has a right of private E
defence of body under Section 97. that right extends under Section I00 to
causing death if then is reasonable apprehension that death or grievous hurt
would be the consequence of the assault. The oft-quoted observation of this
Court in Salim Zia v. State of U.P., AIR (I 979) SC 39 I, runs as follows:

"It is true that the burden on an accused person to establish the F
plea of self defence is not as onerous as the one which lies on the
prosecution and that, while the prosecution is required to prove its
case beyond reasonable doubt, the accused need not establish the
plea to the hilt and may discharge his onus by establishing a mere
preponderance of probabilities either by laying basis for that plea in G
the cross-examination of the prosecution 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 preponderence of probabilities is in favour of his plea. H
220 SUPREME COURT REPORTS (2007] 3 S.C.R.

A 18. 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
injuries so caused on the accused probabilise the version of the right of
B 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 pdnciple applies to ~ .
cases where the injuries sustained by the accused are minor and superficial
c 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
considering whether the right of private defence is available to an accused,
D 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. Section 97 deals with the subject matter of right
..
1
of private defence. The plea of right comprises the body or property (i) of the
E person exercising the right; or (ii) of any other person; and the right may be
exercised in the case of any offence against the body, and in the case of
offences of theft, robbery, mischief or criminal trespass, and attempts at such
offences in relation to property. Section 99 lays down the limit 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 I 00
F to 106 is controlled by Section 99. To claim a right of private defence extending
to voluntary causing of death, the accused must show that there were "'.~
circumstances giving rise to reasonable grounds for 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
G death. Sections 100 and IO I, !PC define the limit and extent ofright of private
defence.

19. Sections 102 and 105, !PC 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
H arises from an attempt, or threat, or commit the offence, although the offence
SHAHJAJHANv. STATEOFKERALA[PASAYAT,J.] 221

may not have been comm ited but not until there is that reasonable A
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.
B
20. 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 circumstances whether the
accused had time to have recourse to public authorities are all relevant
factors to be considered. Similar view was expressed by this Court in Biran
Singh v. State of Bihar, AIR (1975) SC 87. (See: Wassan Singh v. State of
c
Punjab, [1996) I SCC 458, Sekar alias Raja Sekharan v. State represented
by Inspector ofPolice, TN. , [2002) 8 SCC 354).

21. As noted in Bula Singh v. The State ofPunjab, AIR ( 1991) SC 1316,
a person who is apprehending death or bodily injury cannot weigh in golden D
scales in the spur of moment and in the heat of circumstances, the number
of injuries required to disarm the assailants who were armed with weapons.
In moments of excitement and disturbed mental equilibrium it is often difficult
to expect the parties to preserve composure and use exactly only so much
force in retaliation commensurate with the danger apprehended to him where
assault is imminent by use of force, it would be lawful to repel the force in · E
self-defence and the right of private-defence commences, as soon as the
threat becomes so imminent. Such situations have to be pragmatically viewed
and not with high-powered spectacles or microscopes to detect slight or
even marginal overstepping. Due weightage has to be given to, and hyper
technical approach has to be avoided in considering what happens on the F
spur of the moment on the spot and keeping in view normal human reaction
and conduct, wher~ Se ff-preservation is the paramount consideration. But, if
the fact situation shows thafin the guise of self-preservation, what really has
'. been is to assault the original aggressor, even after the cause of reasonable
apprehension has disappeared, the plea of right of private-defence can
legitimately be negatived. The court dealing with the plea has to weigh the G
material to conclude whether the plea is acceptable. It is essentially, as noted
above, a finding of fact.

22. The right of self-defence is a very valuable right, serving a social
purpose and should not be construed narrowly. (See Vidhya Singh v. State
H
222 SUPREME COURT REPORTS [2007] 3 S.C.R.

A ofMP., AIR ( 1971) SC 1857). Situations have to be judged from the subjective
point of view of the accused 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 question as to whether
more force than was necessary was used in the prevailing circumstances on
the spot it would be inappropriate, as held by this Court, to adopt tests by
B detached objectivity 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 himself cannot be expected to
modulate his defence step by step with any arithmetical exactitude of only
that much which is required in the thinking of a man in ordinary times or under
C nonnal circumstances.

23. In the illuminating words of Russel (Russel on Crime, I Ith Edition
Volume I at page 49):

" ..... a man is justified in resisting by force anyone who manifestly
intends and endeavours by violence or surprise to commit a known
D 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 danger
is ended and if in a conflict between them he happens to kill his
attacker, such killing is justifiable."

E 24. The right of private defence is essentially a defensive right
circumscribed by the governing statuate i.e. the IPC, available only when the
circumstances clearly justify it. It should not be be allowed to be pleaded or
availed 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
F aggression and not as retaliatory measure. While providing for exercise of the
right, care has been taken in IPC not to provide and has not devised ·a
mechanism whereby an attack may be a pretence for killing. A right to defend
does not include a right to launch an offensive, particularly when the need
to defend no longer survived.

G 25. The above position was highlighted in State of MP. v. Ramesh,
[2005] 9 sec 705.

26. Above being the position, the judgment of the High Court does not
suffer from any infumity to warrant Interference. Therefore, the appeal is
dismissed.
H .
B.S. Appeal dismissed.