SHIVANNA AND ORS.versusSTATE OF KARNATAKA

A                              SHIV ANNA AND ORS.
                                       v.
                              STATEOFKARNATAKA

                                 NOVEMBER 8, 2006

B            [ARIJIT PASA YAT AND LOKESHWAR SINGH PANTA, JJ.]


           Indian Penal Code, 1860.

          Sections 96, 97, 98, 99, JOO, JOI, 102, 103, I04, I05, I48, I49, 324,
C 326 and 304 Part II-Right of private defence-Held, it is a right of defence,
   not ofretribution, expected to repel unlawful aggression and not as retaliatory
   measure-Right when applicable-Held, when there is reasonable
   apprehension that death or grievous hurt would be the consequence of
   assault-Right lasts so long as reasonable apprehension to body continues-
D Burden of proof-Held, burden of proof is on accused-Accused taking plea
   not necessarily required to call evidence a;1d can establish plea by reference
   to circumstances transpiring from prosecution evidence itself-Burden stands
   discharged by showing preponderance of probabilities in favour of plea on
   the basis of material on record-In the facts, plea of right of private defence
   rejected but sentence altered from eight years rigorous imprisonment to six
E ·years rigorous imprisonment for offence under Section 304 Part II-Indian
   Evidence Act, 1872-Section 105.

           Words & Phrases- 'Right of Private defence '-Meaning of in the context
     of the Indian Penal Code, 1860.

F          D was wife of S-accused no.I and they had three children. D was residing
     with her elder brother, M. S had 4 acres of land out of which he had given 1
     acre 10 guntas to his children which was being cultivated by them, (D and
     M). They were demanding more share for which S did not agree. Prosecution
     alleged that on the day of incident when D & M learnt that S alongwith other
G    accused persons was cultivating land allotted to share of children of D, they
     alongwith other persons went to prevent cultivation of said land by S but they
     were attacked by S and other accused persons. M was attacked by crow-bar,
     spade and a club as a result of which M died. Trial Court convicted accused
     persons for commission of offences under Sections 143, 148, 324, 326, 341,
     302 read Section 34 of Indian Penal Code, 1860. High Court partly allowed
II                                        732
..
                          SHIV ANNA v. ST ATE OF KARNATAKA                           733
     appeal filed by accused persons and convicted them for commission of offences          A .
     under Section 304 Part II read with Section 149 IPC and sentenced them to
     undergo rigorous imprisonment or 8 years and also convicted them under
     Section 148 IPC and Sections 324 and 326 read with Section 149 IPC. Hence
     this appeal by the accused persons.

           Appellants contended that deceased and persons with him were                     B
     aggressors as they were trying to encroach upon land of appellants and the
     appellants in exercise of right of private defence assaulted them; and that
     sentence imposed is quite heavy and major part of sentence has already been
     suffered by them.

            Partly allowing the appeal, the Court
                                                                                            c
            HELD :1.1. Section 96, IPC 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'. The right of private defence
     is essentially a defensive right circumscribed by the governing statute i.e.
     th~ IPC, available only when the circumstances clearly justify it. It should
                                                                                            n,
     not 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 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 pretence for E
     killing. A right to defend does not include a right to launch an offensive,
     particularly when the need to defend no longer survived. [739-D, E; 743-D, E)

            V. Suhramani and Anr. v. State qfTN., [2005) 10 SCC-358, relied on.

           Russel on Crime, //th Edition, V~/ume I at page 49 referred to.                  F
           1.2. 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 body, and in the case of offences of theft, robbery,
     mischief or criminal trespass, and attempts at such offences in relation to            G
     property. Section 99 lays down the limits of the right of private defence.
     Sections 96 and 98 give a right of private defence against certain offences
     arid acts. The right given under Sections 96 to 98 and 100 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           H
     734                      SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A    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. Sections
     100 and 101, IPC define the limit and extent of right of private defence.

           2. Whether in a particular set of circumstances, a person legitimately
B    acted in the exercise of the right of private. defence is a questi,OPc of fact to be
     determined on the facts and circumstances of each case. No test;iJ1.Jhe 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-
.C   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
     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, it
D    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 necessary facts from the witnesses examined
     for the prosecution. An accused taking the plea of the right of private defence
E    is not necessarily required to call ev.idence; he can establish his plea by
     reference to circumstances transpiring from the prosecution evidence itself.
                                               a
     The question in such a case would be 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
F    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 preponderance of probabilities in favour
     of that plea on the basis of the material on record. [739-E, H; 740-A-C)

G         Munshi Ram and Ors. v. Delhi Administration, AIR (1968) SC 702, State
     ofGujarat 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) SC 577 and Salim Zia v. State of UP., AIR (1979) SC 391, relied on.
          3. The number of injuries is not always a safe criterion for determining
H    who the aggressor was. It cannot be stated as a universal rule that whenever
                    SHIVANNA v. STATE OF KARNATAKA                         735
the injuries are on the body of the accused persons, a presumption must A
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 private
defence. Non-explanation of the injuries sustained by the accused et 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 B
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 or
where the evidence is so clear and cogent, so independent and disinterested,
so probable, CCJnsistent and credit~worthy, that it far outweighs the effect of
the omission on the part of the prosecution to explain the injuries.              C
                                                             (740-G; 741-A, BJ
      Lakshmi Singh v. State of Bihar, AIR (1976) SC 2263, relied on .
      .4. Sections 102 and 105, 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      D
from an attempt, or threat, to commit the offence, although the offence may
not have been committed but not until there is that reasonable apprehension.
The right lasts so long as the reasonable apprehension of the danger to the
body continues. (741-F-G]

      Jai Dev. v. State of Punjab, AIR (1963) SC 612, relied on.                  E

      5. 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    F
considered. (742-A, B]

      Biran Singh v. State of Bihar, AIR (1975) SC 87, Wassan Singh v. State
of Punjab, (1996] 1 SCC 458 and Sekar alias Raja Sekharan v. State
represented by Inspector of Police, T.N., [2002) 8 SCC 354, relied on.
                                                                                  G
      6. The right of self-defence is a very valuable right, serving a social
purpose and should not be construed narrowly. Situations have to be judged
from the subjective point ofview 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 H
     736                    SUPREME COURT REPORTS [2006) SUPP. 8 S.C.R.

A   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 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
B   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 normal circumstances. [742-G, H; 743-A, BJ

             Vidhya Singh v. State of MP., AIR (1971) SC 1857, relied on.
          7. There is no material on record to show that the prosecution witnesses
C   were the aggressors. On the contrary, categorical findings have been recorded
    by the Trial Court and the High Court on analysis of evidence to the effect
    that the accused persons have committed the crime after they had entered
    upon the land and were ploughing the land. That being so, plea of right of
    private defence has been rightly rejected by the Trial Court and the High Court.
                                                                          [743-F,G]
D         8. Considering the background facts, while maintaining conviction the
    sentence is altered to six years rigorous imprisonment so far as Section 304
    Part II IPC is concerned. The conviction and sentence as _imposed in respect
    of other offences do not suffer from any infirmity to warrant interference.
                                                                     [743-H; 744-A]
E            CRIMINAL APPELLATE JURISDICTION : Crimhal Appeal No. 1130 of
    '2006.
         From the final Judgment and Order dated 26.8.2005 of the High Court
    of Kamataka at Bangalore in Criminal Appeal No. 2076 of 2002.

F        S.N. Bhat, N.P.S. Panwar, D.P. Chaturvedi and Mayuri Karda for the
    Appellant.

             Sanjay R. Hegde and Amit Kumar Mishra for the Respondent.

             The Judgment of the Court was delivered by
G
             ARIJIT PASA YAT, J. Leave granted.

          Challenge in this appeal is to the judgment rendered by a Division
    Bench of the Karnataka High Court partly allowing the appeal filed by the
    appellants. Each of the appe!:ants was held guilty under Section 304 Part II
H   read with Section 149 of the Indian Penal Code, 1860 (in short the 'IPC'), and
            SHIVANNAv. STATEOFKARNATAKA[PASAYAT,_J.]                    737

was sentenced to undergo rigorous imprisonment of 8 years and to pay a fine A
of Rs.1,000/- with default stipulation. Additionally, each was convicted in
terms of Section 148 IPC and Sections 324 and 326 read with Section 149 lPC.

      Background facts which gave rise to the prosecution of the appellants
are as follows:
                                                                              B
        The accused No.l's wife Devamma (PW 14) resided with her elder
 brother Mahadevappa (hereinafter referred to as the 'deceased'). Since the
 date of marriage accused no.I had been residing with them for some time and
 later, he shifted to his brother's house and visited them only some times. After
some years, he discontinued coming to their house. Three children were born C
to them. The land of the accused no. I measuring 4 acres was being cultivated
by him and since there was demand from his wife Devamma (PW 14) to give
a share to the extent of I acre I 0 guntas to his children, which was accepted.
The possession was with his children, but was being cultivated by deceased
 Mahadevappa, Devamma (PW 14) and the children. They began to demand
 more share for which accused no. I did not agree. On 14.6.1995 in the morning, D
 Devamma (PW 14) and deceased learnt that accused no. I alongwith others
 was cultivating the land allotted to the share ofDevamma's children. Therefore,
the deceased, his son Sangaraju (PW2), brother Puttaswamappa (PW3) and
 Mahadeveswamy (son of accused no.I and PW-14) went to the ~aid land.
PW-2 prevented the cultivation of the land being done by accused Shivanna
(accused no.I). Therefore, Lingaraju (accused no.2) hit on the head of PW- E
2 by means of a crow-bar. When deceased came to his rescue, he was
assaulted on his head by Ramesha (accused no.3), Chinnaswamy (accused
no.5), Nanjundappa (accused no.6) and M.H.Mahadevappa (accused no.4)
attacked deceased by means-of crow-bar, spade and a club. Puttaswamappa
(PW 3) was held by accused no.4 and accused no. I, accused no.3 and the F
accused no.2 attacked him. The attack by the accused persons by means of
crow-bar, sp?de and club resulted in the death of Mahadevappa. Thereafter,
all the accused persons ran away from the spot. The injured and the deceased
were brought to the Primary Health Centre, Huilahalli, where Dr. Dhananjaya
(PWI) examined them. He treated PWs 2 and 3 and advised them to go for
further treatment to Mysore. An intimation was sent to the police and G
S.F.M.Mumtaz (PW-17) went to the hospital and recorded the complaint of
PW 2 and sent it to the police station for registration. The said complaint was .
received at about 2.00 p.m. by Puttannaiah, ASI, Nanjangud Rural PS. (PW-
19) and he registered a case against these appellants and recorded FIR. The
investigation was taken up by K. Srikanta, Circle Inspector of Nanjangud H
    738                     SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A Circle (PW-18). He went to the place of offence, conducted spot mahazar and
    took further steps. The accused persons were absconding. Accused no. I was
    arrested on 20.6.1995 ud his voluntary statement was recorded as per Ex.P.16.
    The accused Nos.2, 3, 5 and 6 were arrested later on 8.9.1995 and were
    produced before Siddaiah, PSI (PW-21) who recorded their voluntary
    statements. In furtherance of the voluntary statement, the weapons used in
B   the offence were seized. After further investigation by Sri R.Malelsh, Circle
    Inspector of Police, T.Narsipur Circle, who was in additional charge of
    Nanjangud Circle, a charge sheet was placed against the accused.

          Since accused no.4 was absconding his case was separated and separate
C trial in Sessions Case no.178 of 1996 was held. Both these Sessions cases
    were tried together. Charge for offences punishable under Sections 143, 148,
    324, 326, 341, 302 read with Section 34 IPC was framed.

           In order to substantiate its case 24 witness were examined. PWs. 2, 3
    and 4 were stated to be eyewitnesses. PW 14 wife of accused no.I spoke
D   about the motive. Doctor (PW l) who examined PWs 2 and 3 spoke about the
    injuries on them. He had conducted post mortem examination on the dead
    body of the deceased. Accused persons pleaded innocence and false
    implication. On consideration of the evidence on record the Trial Court recorded
    conviction and imposed sentence as detailed below:

E          (i)    for the offence punishable under Section 302 oftl1e IPC to undergo
                  life imprisonment and to pay a fine of Rs. l ,.000/- each;
           (ii)   for the offence punishable under Section 143 of the l.P.C., to
                  undergo imprisonment for six months;

           (iii) for the offence punishable under Section 148 of the l.P.C.: to
F                undergo Imprisonment for one year;
           (iv) for the offence punishable under Sect:on 341 of the l.P.C.: to
                undergo imprisonment for one month;

           (v)    for the offence punishablt: under Section 324 of the l.P.C.: to
G                 undergo Imprisonment for one year; and
           (vi) for the offence punishable under Section 326 of the I.P.C. to
                undergo imprisonment for three years and to pay a fine of Rs.500
                each, in default to undergo.SJ. for 15 days.

       The accused persons filed appeal before the High Court questioning
H judgment of the Trial Court. As noted above the High Court maintained
             SHIV ANNA v. STATE OF KARN ATAKA [P ASAY AT, J.]             739

conviction in respect of some of the alieged offences and directed acquittal     A
in respect of others.

       In support of the appeal, learned counsel for the appellant submitted
that the prosecution witnesses PWs 2 to 6 and deceased were the aggressors.
They were trying to encroach upon the land of the accused persons and,
therefore, exercising the right of private defence they assaulted them. In the   B
course of assault Al has suffered five injuries. It is also submitted that the
sentence imposed is quite heavy and major part of the sentence has already
been suffered by the accused persons.

       In response, learned counsel for the State submitted that this is not a
case where the right of private defence can be said to have been exercised. C
There is no material to show that the .prosecution witnesses were the
aggressors. The deceased was attached with crow bars and spades. Therefore,
this is a clear case where the High Court has been rather lenient in altering
the conviction to Section 304 Part II IPC. It was pointed out that injuries
sustained by the accused were minor in nature and may have been sustained D
when the scuffle took place.

        The only 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 defence. The Section does
 not define the expression 'right of private defence'. It merely indicates that E
 nothing is an offence which is done in the exercise of such right. 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. 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 F
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, if the same is available to
be considered from the material on record. Under Section 105 of the Indian G
Evidence Act, 1872 (in short 'the Evidence 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 H
    740                    SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A 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 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
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
C   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. Bai Fatima
    AIR (1975) SC 1478, State ofU.P. v. Mohd Musheer Khan AIR (1977) SC 2226,
    and Mohinder Pal Jolly v. State of Punjab, AIR (1979) SC 577. Sections 100
    to 10 I define the extent of the right of private defence of body. If a person
D   has a right of private defence of body under Section 97, that right~extends
    under Section 100 to causing death if there 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 ofU.P., AIR (1979) SC
    391, runs as follows:
E           "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 to the hilt and may discharge his onus by establishing a mere
F           preponderance of probabilities either by laying basis for that plea in
            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
G   the preponderance of probabilities is in 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 persons, a presumption must
    necessarily be raised that the accused persons had caused injuries in exercise
H
             SHIVANNAv. STATEOFKARNATAKA[PASAYAT,J.]                      741

 of the right of private defence. The defence has to further establish that the A
 injuries so caused on the accused probabilise 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 B
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 C
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. 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 D
 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 limits of the right
of private defence. Sections 96 and 98 give a right of private defence against E
certain offences and acts. The right given under Sections 96 to 98 and l 00
to l 06 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 caYsing of F
death. Sections I 00 and I 0 I, IPC define the limit and extent of right of private
defence.

       Sections l 02 and 105, IPC deal with commencement and continuance of
the right of private defence of body and property respectively. The right G
commences, as soon as a reasonable 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
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 H
    742                     SUPREME COURT REPORTS [2006) SUPP. 8 S.C.R.

A 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
           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 Punjab, [1996] l
    sec 458 and Sekar alias Raja Sekharan V. State represented by Inspector
    of Police, T.N., [2002] 8 SCC 354).

c          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 disarm the assailants who were armed with weapons.          .....
    In moments of excitement and disturbed mental equilibrium it is often difficult
D   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
    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
E   marginal overstepping. Due 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 reaction and conduct,
    where self-preservation is the paramount consideration. But, ifthe fact situation
    shows that in the guise of self-preservation, what really has been done is to
F   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 material to
    conclude whether the plea is acceptable. It is essentially, as noted above, a
    finding of fact.

G         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
    ojMP., 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
H   more force than was necessary was used in the prevailing circumstances on
                                                                                        ..
                 SHIVANNAv. STATEOFKARNATAKA[PASAYAT,J.]                          743

   the spot it would be inappropriate, as held by this Court, to adopt tests by           A
   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        B
   normal circumstances.

        In the illuminating words of Russel (Russel on Crime, l lt.h 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               C
           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."                                        D
            The right of private defence is essentially a defensive right circumscribed
     by the governing statute i.e. the 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, aggressive or retributive purpose of offence. It is a right of
     defence, not of retribution, expected to repel unlawful aggression and not as        E
     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 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. (see V. Subramani and Anr. v. State of T.N., [2005] 10 SCC 358).
                                                                                          F
         There is no material on record to show that the prosecution witnesses
  were the aggressors. On the contrary, categorical findings have been recorded
  by the Trial Court and the High Court on analysis of evidence to the effect
  that the accused persons have committed the crime after they had entered
  upon the land and were ploughing the land.
                                                                                          G
        That being so, plea of right of private defence has been rightly rejected
  by the Trial Court and the High Court.

       The residual question is whether the sentence as maintained by the
  High Court is harsh. Considering the background facts, while maintaining                H
    744                    SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A conviction the sentence is altered to six years rigorous imprisonment so far
    as Section 304 Part II IPC is concerned. The fine with default stipulation as
    imposed by the Trial Court and maintained by the High Court needs no
    interference. The· conviction and sentence as imposed in respect of other
    offences do not suffer from any infirmity to warrant interference. The sentences
B   shall run concurrently.

          The appeal is allowed to the aforesaid extent.

    K.K.T.                                                  Appeal partly allowed.