Dr. Arijit Pasayat, J.— Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of the Allahabad High Court upholding the conviction of the appellants for offences punishable under Section 302 read with Section 34 and Section 323 read with Section 34 of the Penal Code, 1860 (in short “IPC”). The learned Additional Sessions Judge, Bijnor had found the appellant-accused guilty and had sentenced each to undergo RI for life for the first offence and six months' RI for the second offence. The sentences were directed to run concurrently. One Leela Singh who faced trial along with the appellants was given the benefit of doubt and was acquitted of the charges.
3. Background facts in a nutshell are as follows:
The incident is alleged to have taken place on 17-6-1980 at about 6.00 p.m at Village Bilai, which is also at a distance of 4 km from Police Station Haldaur, District Bijnor. The report of the incident was lodged at Police Station Haldaur on that very day at 8.30 p.m The allegations of the prosecution as would appear from the written report (Exhibit Ka-8) are that a day before the incident sometime in the evening, boundary of the fields of the complainant was damaged by accused, Genda Singh and Mahavir Singh and for it some altercations had also taken place. On the fateful day (17-6-1980) in the morning hours, the complainant, Kendra Pal Singh along with his father, Virendra Singh and uncle Hari Raj Singh went to plough their fields. They were just repairing the boundary at that place where it was damaged by accused Genda Singh and others. It was about 7.00 a.m when Genda Singh armed with tabal, Mahavir Singh armed with axe, Thamman Singh armed with lathi and Leela Singh armed with iron pipe came at that place and exhorted that the boundary wall would not be disturbed from the place where it was set up. Some quarrel had taken place on it and they gave blows with their weapons to Hari Raj Singh and Virendra Singh.
4. On hearing the hue and cry made by the complainant, Surendra Singh, Prakash Singh, Balbeer Singh, Naubahar Singh and other persons turned up at the site and rescued the complainant and other persons. The father of the complainant Virendra Singh in unconscious state and Hari Raj Singh in a precarious condition were brought to the police station where report was lodged. The report was registered as Crime No. 130 of 1980 at Police Station Haldaur for the offences under Sections 323, 324 and 308 IPC and its entry was also made in the GD (Exhibit Ka-12). Sub-Inspector Vipin Pal Singh and other Police Constables, namely, Anwar Khan, Mahendra Singh and Shaukat Khan were sent from the police station to the hospital with necessary papers for drawing inquest report vide Exhibit Ka-12.
5. PW B.S Rana, SI, (PW 8) took up the investigation of the case and prepared the inquest report. Dr. Gurcharan Singh (PW 2) conducted the autopsy on the dead body of Hari Raj Singh on that very day at 4.30 p.m and prepared the report (Exhibit Ka-6). Virendra Singh was brought to the Primary Health Centre at 8.00 a.m on 17-6-1980 by Constable Tej Pal Singh. He died on the very same day. It was opined by the doctor who conducted the autopsy of Hari Raj Singh and Virendra Singh that their deaths had taken place on account of shock and haemorrhage. It was also opined that the ante-mortem injuries sustained by the victims might have been caused on that very day i.e 17-6-1980.
6. Injuries of PW 5 Kendra Pal Singh were also medically examined at Primary Health Centre, Haldaur on 18-6-1980 at 9.15 a.m (Ext. Ka-2) by PW 1 (Dr. Chaod Kumar Singh).
7. Charge-sheet was filed after investigation. Since accused persons abjured their guilt, trial was held. Placing reliance on the evidence of the witnesses, more particularly, the injured witness the trial court found the accused persons guilty and convicted and sentenced as aforenoted. The judgment of the trial court was questioned before the High Court in Criminal Appeal No. 2917 of 1980. As noted above, the High Court dismissed the appeal.
8. Primary stand of learned counsel for the appellants was that the High Court should have given the benefit available for exercising right of private defence. It was submitted that the evidence clearly established that the accused persons were exercising their right of private defence.
9. Learned counsel for the State on the other hand supported the judgment of the trial court and the High Court.
10. “11. 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 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 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 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 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 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 preponderance of probabilities in favour of that plea on the basis of the material on record. (See Munshi Ram v. Delhi Admn. AIR 1968 SC 702, State of Gujarat v. Bai Fatima (1975) 2 SCC 7, AIR 1975 SC 1478, State of U.P v. Mohd. Musheer Khan (1977) 3 SCC 562, AIR 1977 SC 2226 and Mohinder Pal Jolly v. State of Punjab (1979) 3 SCC 30, AIR 1979 SC 577.) Sections 100 to 101 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 100 to causing death if there is reasonable apprehension that death or grievous hurt would be the consequence of the assault. The of quoted observation of this Court in Salim Zia v. State of U.P (1979) 2 SCC 648, AIR 1979 SC 391 runs as follows:
‘9. … 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 preponderance of probabilities either by laying basis for that plea in the cross-examination of 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 preponderance of probabilities is in favour of his plea.
12. … 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 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 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 certain offences and 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 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.
13. 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 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 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 rout, there can be no occasion to exercise the right of private defence.
14. 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 (1975) 4 SCC 161, AIR 1975 SC 87. (See also Wassan Singh v. State of Punjab (1996) 1 SCC 458 and Sekar v. State (2002) 8 SCC 354.)
15. As noted in Buta Singh v. State of Punjab (1991) 2 SCC 612, AIR 1991 SC 1316 a person who is apprehending death or bodily injury cannot weigh in golden scales on the spur of the 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 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 spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self-preservation, what really has been done is to assault the 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.
16. 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 of M.P (1971) 3 SCC 244, 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 detached objectivity which would be so natural in a courtroom, 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 normal circumstances.
17. In the illuminating words of Russell (Russell on Crime, 11th Edn., Vol. I at p. 49):
‘… a man is justified in resisting by force anyone who manifestly intends and endeavours by violence or surprise to commit a known felony against either his person, habitation or property. In these cases, he is not obliged to retreat, and may not merely resist the attack where he stands but may indeed pursue his adversary until the danger is ended and if in a conflict between them he happens to kill his attacker, such killing is justifiable.’
18. The right of private defence is essentially a defensive right circumscribed by the governing statute i.e 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 a 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.”
The above position was highlighted in V. Subramani v. State of T.N (2005) 10 SCC 358, SCC at pp. 364-68, paras 11-18.
11. Factual scenario as noted above clearly goes to show that though the appellants claimed to be exercising the right of private defence, it was exceeded. That being so, the protection for exercising the right of private defence cannot be extended to the appellants. But the appropriate conviction would be under Section 304 Part I IPC and custodial sentence of 10 years in case of each appellant and fine imposed by the trial court would meet the ends of justice.
12. The appeal is allowed to the aforesaid extent.