Case: State Of M.P Vs. Ramesh

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 had 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. 15. The right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. (See Vidhya Singh vs. State of M.P. (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. 16. In the illuminating words of Russel (Russel) 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." 17. 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 or 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 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.18. We find that the High Court has acted on surmises and conjectures to conclude certain aspects. Firstly, it has come to conclude that the boys including the deceased attacked Ramesh "may be with fists, may be with some blunt weapon". There was no evidence in this regard. It was further held that there was no reason for Ram Kirpal and his family members to pelt stones. The deceased and his friends attacked Ram Kirpal though weapon used by them are not known. Reference was made to the injuries on Ram Kirpal. it was further held that probably some heat was generated either because of the advise of Ram Kirpal was not accepted or because request of the boys to issue certificate was not accepted by him. Because of the heat generated between the boys and Ram Kirpal, the boys started hitting Ram Kripal causing injuried. In this condition "probably" he asked his sons to shoot the assailants and Ramesh fired a gun shot resulting in fatal injury to deceased and grievous injury to Krishna. It was further held that when there was some exchange of hot words between the deceased and his friends, on one hand and Ram Kishan on the other the boys started attacking on his father and this was grave and sudden provocation to the sons. In the aforesaid background it was held that when Ram Kirpal asked his sons to kill. Exception I to Section 300 would be attracted. The conclusions are not based on evidence and are based on surmises, conjectures and guess work. As aforesaid noted, it was first concluded that right of private defence was exceeded. It was further held that the case is covered by either Exception I or Exception II to Section 300, as injuries on the accused not explained. The findings are vague, unclear and indefensible. As noted above, for some conclusions the High Court acted without any evidence and frequently used the expression `Probably. A new case which was not even pleaded by the parties was introduced on its own by the High Court. Undue importance was attached to some superficial injuries of very minor nature on Ram Kirpal. It is trite that there are some minor or superficial injuries suffered by the accused that shall not affect a credible and cogent prosecution version even if the prosecution has not explained the injuries. The vaccilating nature of the conclusions is apparent because the High Court was not very sure as to whether Exception I or Exception II to Section 300 I.P.C. applied. They operate in entirely different fields. One relates to grave and sudden provocation and the other to exercise of right of private defence.19. The High Court was not justified, therefore, to alter the conviction to Section 304 Part I IPC. The trial Court had rightly convicted the accused in terms of Section 302 IPC.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It is not necessary for the accused to plead in so many words that he acted inIf 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 ofand, in the absence of proof, it is not possible for the Court to presume the truth of the plea ofThe 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 ofis 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 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 or 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 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.18. We find that the High Court has acted on surmises and conjectures to conclude certain aspects. Firstly, it has come to conclude that the boys including the deceased attacked Ramesh "may be with fists, may be with some blunt weapon". There was no evidence in this regard. It was further held that there was no reason for Ram Kirpal and his family members to pelt stones. The deceased and his friends attacked Ram Kirpal though weapon used by them are not known. Reference was made to the injuries on Ram Kirpal. it was further held that probably some heat was generated either because of the advise of Ram Kirpal was not accepted or because request of the boys to issue certificate was not accepted by him. Because of the heat generated between the boys and Ram Kirpal, the boys started hitting Ram Kripal causing injuried. In this condition "probably" he asked his sons to shoot the assailants and Ramesh fired a gun shot resulting in fatal injury to deceased and grievous injury to Krishna. It was further held that when there was some exchange of hot words between the deceased and his friends, on one hand and Ram Kishan on the other the boys started attacking on his father and this was grave and sudden provocation to the sons. In the aforesaid background it was held that when Ram Kirpal asked his sons to kill. Exception I to Section 300 would be attracted. The conclusions are not based on evidence and are based on surmises, conjectures and guess work. As aforesaid noted, it was first concluded that right of private defence was exceeded. It was further held that the case is covered by either Exception I or Exception II to Section 300, as injuries on the accused not explained. The findings are vague, unclear and indefensible. As noted above, for some conclusions the High Court acted without any evidence and frequently used the expression `Probably. A new case which was not even pleaded by the parties was introduced on its own by the High Court. Undue importance was attached to some superficial injuries of very minor nature on Ram Kirpal. It is trite that there are some minor or superficial injuries suffered by the accused that shall not affect a credible and cogent prosecution version even if the prosecution has not explained the injuries. The vaccilating nature of the conclusions is apparent because the High Court was not very sure as to whether Exception I or Exception II to Section 300 I.P.C. applied. They operate in entirely different fields. One relates to grave and sudden provocation and the other to exercise of right of private defence.19. The High Court was not justified, therefore, to alter the conviction to Section 304 Part I IPC. The trial Court had rightly convicted the accused in terms of Section 302 IPC.