CR.A/142219/1986 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1422 of 1986 For Approval and Signature: HONOURABLE MR.JUSTICE BHAGWATI PRASAD HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================= = 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= = STATE OF GUJARAT Versus BALABHAI NARSINHBHAI ========================================= =Appearance : MR MG NANAVATI, ADDL PUBLIC PROSECUTOR for the Appellant MR RS PANJWANI for the Opponent ========================================= = CORAM : HONOURABLE MR.JUSTICE BHAGWATI PRASAD and HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 11/07/2008 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE BHAGWATI PRASAD) State of Gujarat has preferred the present appeal against the judgment and order dated 16.09.1986 passed by the Additional Sessions Judge, Baroda in Sessions Case No. 88 of CR.A/142219/1986 2/7 JUDGMENT 1986 acquitting the respondent accused for the offence punishable under Section 302 of the Indian Penal Code. We have heard Mr. Maulik Nanavati, learned Additional Public Prosecutor and with his assistance have gone through the record of the case. The Trial Court accepted the plea of self-defence set up by the accused and acquitted him. A perusal of the cross- examination of Vechlabhai Daman (PW-9) and Bhanka Shankar (PW-10), who witnessed the incident, clearly shows that the accused had put forth the following pleas of self-defence: that deceased Kalu Shankar had come to his house with an axe, that there was an altercation between him and the deceased, that deceased Kalu Shankar had abused him and threatened to kill him in case he did not repay the amount of Rs. 600, that the deceased then chased him inside his house slashing the axe towards him and that when he was pushed to the wall and had no possibility of escaping he picked up the gun hanging on the wall and asked deceased to stop, that the deceased did not stop and as he was about to hit him with the axe that he fired from his gun. It is now well settled that the onus is on the accused to establish that his action was in exercise of the right of private defence. The plea can be established either by letting in defence evidence or from the prosecution evidence itself, but cannot be based on speculation or mere surmises. The accused need not take the plea explicitly. He can succeed in his plea if he is able to bring out from the evidence of the prosecution witnesses or other evidence that the apparent criminal act was committed by him in exercise of his right of private defence. CR.A/142219/1986 3/7 JUDGMENT He should make out circumstances that would have reasonably caused an apprehension in his mind that he would suffer death or grievous hurt if he does not exercise his right of private defence. There is a clear distinction between the nature of burden that is cast on an accused under Section 105 of the Evidence Act (read with Sections 96 to 106 of the Penal Code) to establish a plea of private defence and the burden that is cast on the prosecution under Section 101 of the Evidence Act to prove its case. The burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a preponderance of probability (vide Partap v. State of U.P (1976) 2 SCC 798, Salim Zia v. State of U.P.(1979) 2 SCC 648 and Mohinder Pal Jolly v. State of Punjab (1979) 3 SCC 30. In Sekar v. State (2002) 8 SCC 354 this Court observed: (SCC p.355) “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 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. Whether in a particular set of circumstances, a person 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 CR.A/142219/1986 4/7 JUDGMENT 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.” (emphasis supplied) The above legal position was reiterated in Rizan v. State of Chhattisgarh (2003) 2 SCC 661. After an exhaustive reference to several decisions of this Court, this Court summarised the nature of plea of private defence required to be put forth and the degree of proof in support of it, thus: (SCC pp. 670-71, para 13) “Under Section 105 of the 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 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 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 CR.A/142219/1986 5/7 JUDGMENT discharging any burden. When 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. … 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.” (emphasis supplied) We have examined the evidence, keeping in view, the said principles. Vechla Daman (PW-9) and Bhanka Shankar (PW-10) are independent witnesses who were present at the time when the accused allegedly shot the deceased and are stated to have witnessed the incident. Vachla Daman (PW-9), in his examination-in-chief has stated that while he alongwith Bhanka Shankar and Narsing were at the house of accused, deceased Kalu Shankar had come there demanding money from the accused. An altercation had taken place between the accused and the deceased and they had separated the two from quarreling further. Thereafter, the accused had fired two shots at the deceased. In his cross-examination he has stated that after they separated the accused and the deceased from quarreling, the deceased again hurled abuses at the accused and ran after him slashing the axe with an intention to kill the accused. The accused ran into his house and when he was pushed to the wall and could not escape, he picked up the gun CR.A/142219/1986 6/7 JUDGMENT hanging on the wall and pointing it towards the deceased asked him to stop there. The deceased did not stop and instead lifted the axe to hit the accused. At that point of time, the accused fired at the deceased. Similarly, Bhanka Shankar (PW-10) has stated that the deceased had come to the house of the accused demanding money, that he was armed with an axe, that there was exchange of words between the deceased and accused, that the deceased threatened to kill the accused and chased him waving the axe and when the deceased was about to give a blow to the accused, the accused picked up the gun and fired at the deceased. The above evidence clearly and completely corroborates and supports the case of self-defence put forth by the accused. What is significant is that both these witnesses were not subjected to any re-examination on this aspect nor were they sought to be declared hostile. In fact, the manner in which both of them have given evidence in the examination-in-chief and in the cross-examination shows that they were not partisan witness and were giving evidence in a natural manner. The Trial Court has rightly appreciated the said evidence of these witnesses and accepted the plea of self-defence put forth by the accused. An attempt was made on behalf of the prosecution that the trial court ought to have the rejected the plea of self- defence on the ground that the accused did not state in his statement under Section 313 CrPC that he had fired at Kalu Shankar in self-defence. Obviously, an accused cannot be CR.A/142219/1986 7/7 JUDGMENT expected to admit that he had inflicted the blow that killed the deceased. Where the plea of the accused, when read with the evidence of the eyewitnesses, brings out a set of facts and circumstances showing that the accused acted in exercise of the right of private defence, the fact that the accused in his Section 313 CrPC statement did not admit that he hit back the deceased, is not a ground to reject the plea of private defence. For the foregoing reasons, we find that the Trial Court has rightly acquitted the accused. The reasons given by the Trial Judge are correct and based on proper appreciation of evidence. The same does not call for any interference. The appeal is, therefore, dismissed. Bail bond stands cancelled. (BHAGWATI PRASAD, J.) (S.R.BRAHMBHATT, J.) omkar