REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. OF 2009 (Arising out of SLP (Crl.) No.3905 of 2008) [ENTITY] Appellant Vs. [ENTITY] Respondent JUDGMENT
Dr. [ENTITY], J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division Bench of the Madhya Pradesh High Court at Gwalior Bench. The appellant was convicted by learned First Additional Sessions Judge, Bhind, for offence punishable under [SECTION] read with [SECTION] or in the alternative under [SECTION] read with [SECTION] of the [ACT] (in short the `[ACT]'). He was sentenced to undergo imprisonment for life.
3. The High Court by the impugned judgment altered the conviction to [SECTION] [ACT] read with [SECTION] and [SECTION] [ACT]. He was sentenced to undergo imprisonment for 5 years and to pay a fine of Rs.20,000/- with default stipulation.
4. Prosecution version in a nutshell is as follows:
Report Ex.P/1 was lodged by complainant [ENTITY] (PW1) according to which on 31.5.1990 his cousin [ENTITY] had some altercation with [ENTITY] (DW1), sister-in-law of appellant. Due to that incident when on 1.6.1990 at 6.00 a.m. [ENTITY] was going to answer call of nature, he was surrounded by appellant [ENTITY] and his son [ENTITY] and was thrashed to ground. When he shouted, complainant [ENTITY] (PW 1), [ENTITY] (P.W.3) and [ENTITY] (PW 3) reached the spot alongwith [ENTITY] (hereinafter referred to as the `deceased'), sister of the complainant [ENTITY] and his cousin [ENTITY] (PW8). Seeing them, appellant asked his son [ENTITY] to bring his licensed rifle from the home. [ENTITY] brought the gun from the house. On exhortation of the present appellant, [ENTITY] fired a gun shot which caused injury to [ENTITY] on the left thigh. [ENTITY] was taken to the hospital in a bullock cart but on the way she succumbed to the injury sustained by her.
Report of the incident was lodged on 1.6.1990 at about 7 A.M. at police station Dehat, Bhind. On the basis of the report lodged by [ENTITY] (PW 1), police registered a criminal case against the present appellant and his son [ENTITY]. Said [ENTITY] being a minor, his case was referred to the Juvenile Court. So far as the present appellant is concerned, the matter was investigated by the police and challan was filed against him. The case was committed to the Court of Sessions for trial. The Sessions Court recorded the evidence and after appreciating the evidence convicted and sentenced the present appellant as indicated hereinabove. An appeal was preferred before the High Court.
Before the High Court the basic stand was that the accused had exercised the right of private defence and, therefore, no offence was made out. The High Court held that even if the right of private defence is accepted to be available at some point of time, it was exceeded and, therefore, the appropriate conviction was under [SECTION] [ACT].
5. Learned counsel for the appellant submitted that the appellant is clearly protected because he was exercising the right of private defence.
6. Learned counsel for the State on the other hand supported the judgment.
7. Only question which needs to be considered is the alleged exercise of right of private defence. [SECTION], [ACT] 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] of the [ACT] (in short `the [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 [PRECEDENT]), [PRECEDENT], [PRECEDENT], and [PRECEDENT]. [SECTION] define the extent of the right of private defence of body. If a person has a right of private defence of body under [SECTION], that right extends under [SECTION] 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 [PRECEDENT], runs as follows:
"It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea 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 the prosecution witnesses or by adducing defence evidence."
8. 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.
9. 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] deals with the subject matter of right of private defence. The plea of right of self defence may relate to 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] lays down the limits of the right of private defence. [SECTION] and [SECTION] give a right of private defence against certain offences and acts. The right given under [SECTION] and [SECTION] is controlled by [SECTION]. 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. [SECTION] and [SECTION], [ACT] define the limit and extent of right of private defence.
10. [SECTION] and [SECTION], [ACT] 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 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.
11. 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 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 [PRECEDENT]. (See: Wassan Singh v. State of Punjab (1996) 1 SCC 458, [PRECEDENT] represented by [PRECEDENT]).
12. As noted in [PRECEDENT], 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 which is 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 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.
13. The right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. (See Vidhya Singh v. [ENTITY] (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 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 normal circumstances.
14. In the illuminating words of [ENTITY] ([ENTITY] on Crime, 11th 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 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."
15. The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. the [ACT], 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 retaliatory measure. While providing for exercise of the right, care has been taken in [ACT] not to provide 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.
16. The above position was highlighted in [PRECEDENT] and [PRECEDENT] disposed of on 11.8.2008.)
17. In the present case the High Court has rightly held that even if it is accepted that at some point of time the appellant was exercising the right of private defence, the same was exceeded and has rightly found him guilty under [SECTION], [ACT] and sentenced him to undergo imprisonment for five years. The sentence as imposed cannot be considered to be harsh. On payment of fine of Rs.20,000/-, same was to be paid to the heirs of the deceased. Here again there appears to be no infirmity in the order of the High Court.
18. Looked at from any angle, the appeal deserves to be dismissed, which we direct.
J. (Dr. [ENTITY]) J. ([ENTITY]) New Delhi, January 21, 2009