SHRIRAM A v.

ST ATE OF MADHYA PRADESH

NOVEMBER 24, 2003

[DORAISWAMY RAJU AND, ARIJIT PASAYAT, JJ.] B

Penal Code, 1860 :

Section 97-Right of private defence-Existence of-Relevant factors to be considered-Held: Mere injuries on the body of the accused did not C lead to the presumption that the accused had caused injuries in the exercise of his right of private defence-Right of private defence not to be based on surmises and speculation-The injuries receivd by the accused, the imminence of threat to his safety and the injuries caused by the accused are all relevant factors to determine whether right of private defence was D available or not.

Criminal Trial :

Injuries on the accused-Non-explanation of-Effect of-On prosecution case-Held : Non-explanation of injuries on the accused did E not automatically lead to rejection of prosecution evidence especially if the injuries are simple and superficial in nature-Whether evidence is clear, cogent and trustworthy and where truth could be distinguished from falsehood, ngn-explanation of injuries would not affect the prosecution case.

According to the prosecution, the appellant-accused assaulted and caused injuries to the complainant party by lathi and stones resulting in the death of one person. The appellant also claimed to have sustained injuries. The trial court convicted the appellant under Section 302 read with Section 149 of the Penal Code, 1860.

The High Court held that the accused persons were the aggressors and merely because they claimed to have sustained injuries, which were simple in nature, that was not a case of free fight and they were rightly held guilty by the trial court. However, the conviction was H

A altered to one under Section 304 Part i IPC. Hence the appeal.

On behalf of the appellant, it was contended that the prosecution had not explained the injuries on the accused persons ai:td, therefore, the prosecution case must be rejected.

Dismissing the appeal, the Court

HELD : 1.1. The number of injuries is n_9t always a safe criterion ' for determining who the aggressor ; as. it ·annot be stated as a universal rule that whenever the injuries are on.the body of the accused C persons, a presumption must .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 found were 'suffered in the same occurrence and that such injuries on the accused probabilise the version of the right of private defence. Non-explanation D of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance.

However, 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 E superficial 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. [135-E-H)

F Lakshmi Singh v. State of Bihar, AIR (1976) SC 2263, relied on.

1.2. A plea of right of priva_te 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 had a chance to inflict severe and mortal injury on the aggressor.

G In order to find out 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. [136-A-B]

2.1. To claim a right of private defence extending to voluntary H causing of death, the accused must show that there were circumstances

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SHRIRAM v. STATE OF M.P. 131

giving rise to reasonable grounds for apprehending that either death A 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. [136-D-El

2.2. The right of private defence commences, as soon a$ a reasonable apprehension of danger to the body arises from an attenwt, B or threat, to commit the offence, although the offence may not have been committed but not until that there is that reasonable apprehension.

The right lasts so long as the reasonable apprehension of the danger to the body continues. [136-E-G}

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

3. In order to find out 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 D whether the accused had time to have recourse to public authorities are all relevant factors to be considered. [136-G-H; 137-A)

Biran Singh v. State of Bihar, AIR (1975) SC 87; Wassan Singh v.' State of Punjab, [1996] 1SCC458 and Sekar Alias Raja Sekharan v. State represented by Inspector of Police, T.N., [2002} 8 sec 354, relied on. E

4. 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 F mental equilibrium, it is often difficult to expect the parties to preserve composure and use only so much force in retaliation commensurate with the danger apprehended. 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 G 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 tlae paramount H

A consideration. However, 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 defece can legitimately be negatived. The Court dealing with the plea has to weigh the material B to conclude whether the plea is acceptable. It is essentially a question of fact. (137-B-E]

Butta Singh v. State of Punjab, AIR (1991) SC 1316, relied on.

5.1. In each and every case where prosecution fails to explain the C injuries found on some of the accused, the prosecution case should not automatically be rejected, without any further probe. (137-F-G)

Mohar Rai and Bharath Rai v. State of Bihar, (1968) 3 SCR 525, relied on.

5.2. Non-explanation of injuries on the accused person may assume greater importance where the defence gives a version, which competes in probability with that of the prosecution. However, where the Court can distinguish the truth from falsehood the mere fact that the injuries E are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequently the whole case. (139-A-C]

Lakshmi Singh v. State of Bihar, AIR (1976) SC 2263 and Vijayee Singh v. State of U.P., AIR (1990) SC 1459, relied on.

F 5.3. It is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of the guilt of the accused beyond a reasonable doubt, question ofobligation of the prosecution to explain the injuries sustained G by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so H when the injuries are simple or superficial in nature. [139-F-HJ ,

Ramlagan Singh v. State of Bihar, AIR (1972) SC 2593 and Hare A Krishna Singh v. State of Bihar, AIR (1988) SC 863, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 331 of 1997.

From the Judgment and Order dated 14. l I .96 of the Madhya Pradesh B High Court in Crl.A. No. 70 of I 990.

S.K. Gambhir and A.K. Sanghi (AC) for the Appellant.

Siddhartha Dave for Ms. Vibha Datta Makhija for the Responden~. c The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. The appellant along with seven others faced trial for alleged commission of offence punishable under Sections 14 7, 302

nd 323 of the Indian Penal Code. 1860 (for short the 'IPC'). The appellant D was found guilty of offence punishable under Sections 147 and 302 IPC ..

Other seven persons were found guilty for offences punishable under

Sections 147, 302 read with IPC. Accused Mangilal, Durilal, Bhagatram and Ganpat were also found guilty of offence punishable under Section

323. All were also found guilty of offence punishable under Sections 147 E and 302 read with Section 149 !PC. The appellant was sentenced to undergo imprisonment for life with several other custodial sentences. In appeal, one Ganpat whose name did not appear in the first information report was acquitted. All other except appellant-Shriram were convicted under Sections 304 Part II IPC and 323 read with 149 IPC and others were convicted under Section 323 read and 149 IPC but were acquitted of th~ F offence punishable under Section 302 read with Section 149 IPC. Custodial sentence of five years was imposed on the appellant-Shriram with fine of Rs. 5000 with default stipulation. Because of passage of time already spent in custody insted of custodial sentence, fine was imposed on each one of the other accused. During pendency of appeal before the High Court one G Chainram died and the appeal so far he is concerned stood abated.

In a nutshall the prosecution case as unfolded during trial is as follows:

On 4.9.1987 at about 8.00 p.m. infonnant Laxmansingh, Piyarsingh, H

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,:.. A Mansingh, Ghansi, Ratan. Machan Singh, Madan and Lalu had gone to the -.

house ofHemraj Mina (hereinafter referred to as 'deceased') for participation in a Bhajan on the festival ofDol-Gyaras. After participating in the Bhajan Programme all of them were returning to their village. While, returning as such, they were required to go through a road which passes nearby the B house of accused-appellant Shriram Jat. The moment they reached in front of his house, all the accused persons and their associates including some women assaulted and caused injuries to complainant party by lathi and stones. One Ratan escaped and went to Sarpanch Dulasingh and came along with him in a jeep. Laxmansingh, Piyarsingh, Ghansi, Mansingh c Narain and Hemraj sustained injuries. Deceased Hemraj was seriously injured.

Information was lodge at the police station and injured witnesses were examined. The accused persons also claimed to have sustained injuries and were also examined. According to accused persons, the prosecution D witnesses who claimed to have been injured were aggressor since without :; any reason they started assaults and they pelted stones to protect themselves.

Alternatively, it was pleaded that since fight took place and specific roles were not attributed to any particular accused, they were entitled to the benefit of doubt. The trial Court after considering material on reco..P

E convicted the accused persons as noted above. Appeal was preferred by the accused persons before the Madhya Pradesh High Court.

The High Court after consideration of the submissions made came to hold that the accused persons were the aggressors and merely because they claimed to have sustained injuries which were simple in nature, this was F not a case of free fight and they were rightly held guilty by the trial Court.

However, considering the nature of the evidence brought on record it was held that case under Section 302 IPC was not made out and the same was altered to Sec; tion 304. The judgment is under challenge in the present appeal.

G Learned counsel for the appellant submi*d that the witnesses PWs 2, 8, 9 and 11 were interested witnesses and related to the deceased and, therefore, their evidence was partisan. Non-examination of independent witnesses renders prosecution version unacceptable. Moreover, the injuries on the accused persons were not explained and, therefore, adverse inference H should have been drawn.

In response, learned counsel for the State submitted that the evidence A of eyewitnesses have been carefully analysed by the trial Court and the High Court. As the defence took the plea of their relationship, after carefully analyzing the evidence it has been found cogent and credible and, therefore, the trial Court and the High Court were justified in accepting the prosecution version. Further, merely because the accused persons have B sustained minor injuries as is evident froin doctor's evidence, that does not in any manner affect the prosecution version. It was also submitted that the High Court has considered the evidence and come to the right conclusion that the appellant was the main architect or the crime and has been rightly convicted and sentenced.

So far as relationship of eyewitnesses, that they being interested and/ c

or the so-called familiarity with the deceased it does not render per se their evidence suspect. All that is required to be done in such case is to carefully analyse evidence and if after deeper scrutiny it is found acceptable to act D on it. The trial Court and the High Court have done it. Nothing infirm would be pointed out as to how the evidence suffers from any unreality or infirmity in law.

We shall next deal with the aspect relating to injuries on accused arid the question of right of private defence. The number of injuries is not E 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 of the right of private defence. The defence has to further establish that the injuries found were F

suffered in the same occurrence and that such injuries 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 nonexplanation of the injuries by the prosecution may not affect the prosecution G 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, 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 H

A Bihar, AIR (1976) SC 2263]. A plea of right of private defence cannot be

based on surmises and speculation. While considering whether the right or private defence is available to an accused, it is not relevant whether he may have a chance to inflict seere and mortal injury on the aggressor. In order to find whether the right t' i*, ivate defence is available to an accused, the B entire incident must be exmined 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 C 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 I 00 to 106 is controlled by Section 99. To claim a right of private defence D 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 with extended to causing of death. Sections 100 and l 0 l, !PC define the limit and extent E of right of private defence.

Sections I 02 and l 05, IPC deal with commencement and continuance of the right of private defence of body and property respectively. The right commences, as soon as a rea.?onable apprehension of danger to the body arises from an attempt, or threat, or commit the offence, although the F offence may not have committed but not until that 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; G there can be no occaion to exercise the right of private defence.

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 H accused had time to have recourse to public authorities are all relevant

SHRIRAM v. ST A TE OF M.P. [PASA Y AT, J.] 137

factors to be considered. Similar view was expressed by this Cou1t in Biran A Singh v. State of Bihar, AIR (1975) SC 87. (See: Wassan Singh v. State of Punjab, [l 996] I SCC 458 and Sekar alias Raja Sekharan v. State represented by Inspector of Police, TN., [2002] 8 SCC 354.

As noted in Butta Singh v. The State of Punjab, AIR (1991) SC 1316, B 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 to expect the parties to preserve composure and use only so much force in retaliation commensurate with the danger apprehended C 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-defene 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 wei_ghtage has to be D given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot :md 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 E aggressor, even after the cause of reasonable apprehension has disappered, the plea of right of private-defence can legitimaely be negatived. The Court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially a finding of fact.

One of the pleas is that the prosecution has not explained the injuries F on the accused. Issue is if there is no such explanation what would be its effect? We are not prepared to agree with the learned counsel for the defence that in each every case where prosecution fails to explain the injuries found of some of the accused, the prosecution case should automatically be rejected, without any further probe. In Mohar Rai and G Bharath Rai v. The State of Bihar, [1968] 3 SCR 525, it was observed :

" .. .In our judgment, the failure of the prosecution to offer any explanation in that regard shows that evidence of the prosecution witnesses relating to the incident is not true or at any rate not H

wholly true. Further those injuries probabilise the plea taken by the appellants."

In another important case Lakshmi Singh and Ors. v. State of Bihar, [ 1976] 4 SCC 394, after referring to the ratio laid down in Mohar Rai 's case B (supra), this Court observed :

"Where the prosecution fails to explain the injuries on the accused, two results follow :

( 1) that the evidence of the prosecution witnesses is untrue; and (2) that the injqries probabilise.the plea taken by the appellants."

It was further observed that :

"In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences :

(l) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version :

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on the most material point and, therefore, their evidences unreliable :

(3) that in case there is a defence version which explains the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one."

In Mohar Rai's case (supra) it is made clear that failure of the _. prosecution to offer any explanrtion regarding the injuries found on the H accused may show that the evidence related to the incident is not true or

• 1

at any rate not wholly true, Likewise in Lakshmi Singh 's case (supra) it A is observed that any one-explanation of the injuries on the accused by the prosecution by affect the prosecution case. But such a non-explanation may assume greater importance where the defence gives a version which competes in probability with that of the prosecution. But where the evidence is clear, cogent and creditworthy and where the Court can B distinguish the truth falsehood the mere fact that the injuries are not explained by the prosecution cannot by itself be a sole basis reject such evidence, and consequently the whole case. Much depends on the facts and circumstance of each case. There aspects were highlighted by this Court m Vijayee Singh and Ors. v. State of UP., AIR (1990) SC 1459.

Non-explanation of injuries by the prosecution will not affect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs D the effect of the omission on the part of prosecution to explain the injuries.

As observed by this Court in Ramlagan Singh v. State of Bihar, AIR ( 1972) SC 2593 prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons.

When that is not done, there is no occasion for the prosecution witnesses E to explain any injury on the person of an accused. In Hare Krishna Singh and Ors. v. State of Bihar, AIR ( 1988) SC 863, it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain F the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence G has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature. In the case at hand, trifle and superficial injuries on H

A accused are of little assistance to them to throw doubt on veracity of prosecution ca5e.

In view of the legal position highlighted above, there is no substance in the plea relating to non-explanation of injuries on the accused persons.

B The High Court has rightly convicted the appellant under Section 304 Part

II IPC and sentence of 5 years imprisonment cannot, by any stretch of imagination, be termed to be harsh. The appeal fails and is dismissed.

v.s.s.

Appeal dismissed.