Punjab-Haryana High Court
Hari Singh And Others vs State Of Haryana on 16 April, 2012
Author: A.N. Jindal
Bench: Hemant Gupta, A.N. Jindal
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl. Appeal No. 269-DB of 2002
Date of decision: April 16, 2012
Hari Singh and others
.. Appellants
Vs.
State of Haryana
.. Respondent
Coram: Hon'ble Mr. Justice Hemant Gupta
Hon'ble Mr. Justice A.N. Jindal
Present: Mr. Harish Mehta, Advocate and
Mr. Gursimran Singh, Advocate for the appellants.
Ms. Shubhra Singh, DAG, Haryana.
A.N. Jindal, J
The case relates to fratricide on account of the dispute over the
plot, between the brothers inter-se, therefore, they were tried, convicted vide
judgment dated 26.2.2000 passed by the learned Additional Sessions Judge,
Panipat, and sentenced to undergo rigorous imprisonment for life and to pay
fine of Rs.5000/- each under Section 302 IPC; rigorous imprisonment for
one year each under Section 324 IPC and rigorous imprisonment for six
months each under Section 323 IPC.
During the pendency of the appeal, Hari Singh and Subhash
died, and vide order dated 23.9.2010 their death certificates were placed on
record. Now we are left with two accused- appellants, namely, Balwan and
Balbir.
The case was registered on the statement Ex.PH of
complainant- injured Deep Chand (herein referred as, 'the complainant')
before ASI Bali Singh (PW7), in the hospital on 15.6.1998 wherein he
disclosed that he has four other brothers and Hari Singh is the eldest. The
other three accused are the sons of Hari Singh. He, Hari Singh and other
brothers owned 15 marla plot comprised in Khasra No.618, which they had
distributed about 4-5 year back, wherein, 4 marla had fallen to his share and
that of Badlu. Hari Singh had filed a suit in the court which was
compromised, but still he was not satisfied. About 5-6 days prior to the
occurrence, the complainant and his brother Badlu had raised pacca
Crl. Appeal No. 269-DB of 2002 -2-
***
boundary wall around that plot and had sole the same to Bharam Singh son of Rasal Singh for a sum of Rs.23000/-. On the day of occurrence, they had gone to deliver the possession of the plot to Bharam Singh. Bharam Singh and his brother Amar Singh had brought cot full of earth in order to throw the same in the said plot. The complainant started throwing the earth in the plot, whereas, Badlu was standing outside the plot. At about 9/9.30 a.m. Hari Singh along with other accused came there and raised lalkara and gave gandasa blow to Badlu, whereupon, he fell down, then Balbir, Balwan and Subhash accused also gave injuries to the complainant on his waist, left thigh, shoulder, fingers, palm of the right hand and elbow of the left hand with their respective gandasas. On raising hue and cry, "mar ditta, mar ditta"
by the witnesses, the accused fled away with their respective weapons. The complainant and the deceased were shifted to the hospital, where Badlu succumbed to the injuries. On the aforesaid statement made by the complainant, which was completed at 5.30 P.M. On 15.6.1998, FIR Ex.PS/2 was registered and consequently, investigation commenced. SI/SHO Bali Singh conducted the inquest; recorded statement of the witnesses; and dispatched the dead body for postmortem examination. He also visited the spot from where he picked up blood stained earth and took the same into possession vide memo Ex.PR and prepared rough site plan Ex.PD. The accused were arrested on 23.6.1998 and he also got recovered the weapons of offence from them. On completion of the investigation, challan against the accused was presented in the court.
The accused were charged under Sections 302/323/324/34 IPC, to which they pleaded not guilty and claimed trial.
In order to prove the chargers, the prosecution has examined eight witnesses. Dr. S.K. Gupta (PW1), Medical Officer had conducted the autopsy on the dead body of Badlu and had also examined the complainant on 15.6.1998 at 11.40 PM. He proved the autopsy report Ex.PF and MLR of the complainant Ex.PG. He also medically examined Balwan accused and found five simple injuries on his person and proved his medico-legal report Ex.DA. He had also examined Hari Singh accused on the same day Crl. Appeal No. 269-DB of 2002 -3- *** at 1.15 PM and found four injuries on his person.
Jagir Singh (PW2) had prepared the scaled site plan of the place of occurrence Ex.PL; Lakhmi Chand (PW3) is a witness to the recovery of gandasa; SI Balu Ram (PW4) had partly investigated the case; Brahm Singh (PW5) is an eye witness to the occurrence; Deep Chand (PW6) is also an injured eye witness; Bali Singh (PW7) is the Investigating Officer and Inspector Yad Ram (PW8) is also the Investigating Officer of the case.
When examined under Section 313 Cr.P.C. the accused denied all the incriminating circumstances appearing against them and pleaded their false implication in the case. Accused Hari Singh and Balwan pleaded that the complainant party was the aggressor, whereas, accused Subhash and Balbir denied their presence at the spot.
In defence, the accused got proved medico-legal reports Ex.DA and Ex.DB of Balbir and Hari Singh respectively and also tendered the statement of Brahm Singh Ex.DC, copy of the plaint Ex.DD, copy of the khasra girdawari Ex.DE, copy of the written statement Ex.DF and closed their defence.
The trial resulted into conviction.
Arguments heard. Record perused.
The argument raised by the learned counsel for the appellants is two fold. First is that the accused party was in possession of the plot in dispute and the complainant Deep Chand and Badlu came to their plot and forcibly tried to obstruct their possession and caused injuries to them, therefore, their children caused injuries to the complainant party. Second is that Balbir and Balwan were not present at the time of occurrence.
To the contrary, Ms. Shubhra Singh, Deputy Advocate General, Haryana, has vehemently urged that since there are injuries on the person of Hari Singh and Balwan, therefore, their presence at the spot cannot be denied by the accused. Secondly, the accused party has failed to prove the ownership and possession over the plot in dispute, therefore, they having failed to establish their possession cannot succeed in their plea of self Crl. Appeal No. 269-DB of 2002 -4- *** defence. Even otherwise, no occurrence had taken place in the plot itself, therefore, the question of obstructing possession or dispossessing them does not arise. It was also urged that in comparison to the injuries to the deceased as well as the injured- complainant, the injuries suffered by the accused party are simple in nature and appears to have been caused by the complainant party to save Badlu, therefore, the plea of private defence is not available to them. Even the said plea raised by the complainant party is contradictory, as a suggestion was given to Deep Chand (PW6) that it was Badlu who had caused injuries to Balwan and when Hari Singh came to his rescue then, he caused injuries to Hari Singh. But to the contrary, the plea set up by the accused in the suggestion given to Brahm Singh (PW5) is that Badlu and Deep Chand had given the injuries to Hari Singh when he came at their rescue. No specific suggestion was given as to who had given injuries to Badlu and Deep Chand. Even no specific averment was made by the accused in their statement under Section 313 Cr.P.C. as to who had caused injuries to the accused.
Before adverting to the factual situation regarding injuries, keeping in view the fact that the plea of private defence has been raised, it needs to appraise the evidence with regard to possession of the plot in dispute. This plot of abadi as per copy of khasra girdawri Ex.PE is bearing No.618, measuring 15 marlas. No presumption of truth is attached to the copy of khasra girdawri. The accused have not brought on record the authentic revenue record to prove the ownership of the said khasra number, therefore, this intentional concealment incites us to draw an inference that the accused Hari Singh was not the only owner of the said plot, rather khasra girdawri Ex.DE reflects that all the brothers are the owners of the khasra No.618 and the said plot was vacant. Khasra girdawri Ex.DE records that Hari Singh etc. are the owners, obviously, Hari Singh and some other persons, may be all other four brothers, are the owners of the said plot. Since the plot was gair mumkin bara (vacant place), as such, Hari Singh could not be said to be in exclusive possession of the said plot so as to claim his right to protect the possession of the same.
Crl. Appeal No. 269-DB of 2002 -5-*** Learned counsel for the appellants, in order to further claim that Hari Singh was in exclusive possession of the plot has placed reliance on the copy of the plaint Ex.DD which is a suit for permanent injunction filed by Hari Singh against Deep Chand and Badlu, whereby he had sought injunction regarding dispossession over the aforesaid khasra number. Deep Chand and Badlu filed written statement whereby they refuted the claim of the appellant-accused Hari Singh, whereas, the defendants No.3 and 4 in the aforesaid civil suit, admitted the claim of Hari Singh. However, it is admitted fact that the suit was dismissed as withdrawn which also goes to show that the appellant while apprehending that he may not lose the suit got the same dismissed as withdrawn, but the fact remains that the appellant Hari Singh failed to establish his possession over the suit property before the civil court. As such, he being not in exclusive possession over the suit property cannot set up the plea that the complainant party were aggressors and he had a right to protect his possession. At the same time, the complainant party had taken a specific plea that plot of 15 marla was joint of the parties consisting of five brothers and the dispute had arisen about the said plot which was settled with the intervention of the Panchayat, whereby, they had been given 4 marla out of the said plot and Hari Singh had also raised construction of the boundary wall over the plot which had fallen to his share and dispute arose when they were to sell the plot of their share to Brahm Singh and had come to deliver the possession. This plea set up by the prosecution stands proved by the two witnesses and the same could not be shattered by any documentary evidence.
Now coming to the other aspect of the case, regarding presence of the accused at the spot. The occurrence in this case took place on 15.6.1998 at about 9/9.30 AM. It is also not in dispute that from the side of the complainant Badlu and Deep Chand suffered injuries. Dr. S.K. Gupta, Medical Officer, G.H. Panipat (PW1), who had conducted the autopsy on the body of Badlu observed the following injuries on his person :-
"1. An incised wound 5x6 cms bone deep on left side of scalp just lateral to midline and 4 cms behind the interior hair Crl. Appeal No. 269-DB of 2002 -6- *** line. Margins were clean cut. Brown coloured clotted blood was present. On further dissection, there was fracture of underlying parietal bone. There was subdural haematoma and brain was lacerated along with meninges.
2. An incised wound with clean cut margins on right side of scalp 3.5x 1x.8 cm on parietal region 5 cms behind anterior hair line and two cms lateral to midline. Brown clotted blood was present.
3. An incised wound with clean cut margins on right side of upper part of occipital region 3 cms x0.6x0.6 cm was present. Brown clotted blood was present.
4. An incised wound 4 x .6cm bone deep on left side of scalp 10 cm above left pinna, margins were clean cut and brown clotted blood was present. There was fracture of underlying parietal bone with extra dural and subdural haematoma. Menings were lacerated.
5. An incised wound with clean cut margins on left side of lower occipital region size 2.0x0.5x0.5 cm brown clotted blood was present.
6. An incised wound 3x .6 x.4 cm on upper part of right occipital region of scalp with clean cut margins and brown clotted blood was present.
7. An incised wound 3x7 cms bone deep on fronto medial aspect of right leg upper 1/3rd region with clean cut margins and brown clotted blood was present. There was fracture of underlying tibia bone.
8. Red coloured contusion on right foot including ankle region. Size 14x10 cms with fracture of lower end of Fibula.
9. Red contusion on right elbow size 6x5 cms. There was fracture of upper end of ulna.Crl. Appeal No. 269-DB of 2002 -7-
*** Similarly, he examined Deep Chand complainant on the same day at 11.40 AM and observed the following injuries on his person :-
1. An incised wound 9.0x0.5x0.6 cm on the right side of scalp, on upper part of occipital region extending on the parietal region just lateral to midline. Margins were clean cut and wound was spindle shaped. Freshly clotted blood was present.
2. An incised wound with spindle shape and clean cut margins 3 cms lateral to midline and just behind anterior hair line size was 6.0x0.3cms x0.4 cm with freshly clotted blood was present.
3. Multiple linear abrasions on the back of chest, left side size was 10 to 18 cms x .2 cm with freshly clotted blood present.
4. An incised wound on the back of right hand, size 6 x 5 x .
6 cms, it was 3 cm medial to midline with clean cut margins and spindle shaped. Freshly clotted blood was present.
5. An incised spindle shaped wound on the dorsum of right forearm, margins were clean cut. Freshly clotted blood was present.
6. An abrasion on the fronto lateral aspect of left upper arm lower 1/3rd region size 7 cms x 1 cm with freshly clotted blood was present.
7. A lacerated wound on the lateral aspect of left ring finger, size 1.5 cms x.3x.2 cm with irregular margins. Freshly clotted blood was present.
8. An abrasion 4 cms x0.5 cm on right shoulder with freshly clotted blood was present.Crl. Appeal No. 269-DB of 2002 -8-
***
9. A linear abrasion 16 cms x0.2 cm on left thigh with freshly clotted blood was present.
He proved carbon copy of the MLR Ex.PG and had sent ruqa Ex.PH to the In-charge Police Post. Injuries on the person of the accused Balwan have also been proved by him during cross-examination which are reproduced as under :-
"1. An incised wound with clean cut margins and spindle shape of the size 5.0 cms x 0.6 cm on the left side of scalp. It was 3 cms behind the anterior hair line and just lateral to midline. Freshly clotted blood was present.
2. An incised spinidle shaped wound 2.5 cms x 0.5cm x 0.5cm on the right side of upper part of occipital region just lateral to midline. Margins were clean cut. Freshly clotted blood was present.
3. A red coloured contusion 1.5 cms x 1.3 cms on the medial aspect of right elbow.
4. A red coloured contusion on frontal aspect of right forearm in the 1/3rd middle region of the size 2cm x 1cm.
5. Multiple contusions of red colour with various shapes and sizes on the back of left upper arm in the lower 1/3rd region."
He proved M.L.R. in this connection as Ex.DA. No suggestion was given to him if any of the injuries were grievous in nature. Thus, certainly, inference would be drawn that all the injuries were simple in nature. Similarly, Dr. S.K. Gupta (PW1), during cross examination admitted that he had examined Hari Singh on the same day at 1.15 PM and observed the following injuries on his person :-
Crl. Appeal No. 269-DB of 2002 -9-***
1. One socket of one tooth on upper right side and one socket of one tooth of lower right side was lacerated and both the teeth were absent. Freshly clotted blood was present. There was a lacerated wound of the size of 1x0.5 cm x.2 cm on the lower lip right side. Freshly clotted blood was present. The injury was advised for the opinion of the dental surgeon.
2. A lacerated wound with irregular margins and freshly clotted blood was present on the right side of scalp on the poster or parietal region of the size 2 cms x0.3x0.3 cm.
3. A contused abrasion of the size 2 cms x1cm on the back of left hand proximal to the middle finger. Freshly clotted blood was present.
4. A contused abrasion with freshly clotted blood of the size 7x2 cms on the back of lower part of left upper arm.
Injuries No.2 to 4 were advised for x-ray examination."
He also did not opine about the nature of injuries as he was never asked. Though, both the injured were referred for x-ray examination but no x-ray report has been proved on the record by the accused, therefore, injury on his person would also be presumed to be simple in nature. He has also admitted that possibility of suffering injuries by Balwan and Hari Singh at the time the complainant party suffered injuries cannot be ruled out. He also opined that possibility of injuries No.3, 4 and 5 on the person of Balwan by fall or in scuffle cannot be ruled out. Similarly was his reply qua injuries No.3 and 4 on the person of Hari Singh, which also shows that Hari Singh and Balwan having suffered injuries at one and the same time were certainly present at the time of occurrence and participated in the commission of the crime.
As regards the presence of Balbir and Subhash, there are nine injuries on the person of Badlu, out of which 7 injuries are stated to have Crl. Appeal No. 269-DB of 2002 -10- *** been caused with the sharp edged weapon and out of these injuries, 6 injuries are on his head portion. Similarly, out of the 9 injuries caused to Deep Chand complainant, 5 injuries were caused with sharp edged weapon and the three injuries were on his head portion. Now if these injuries are synchronized with the ocular version, Deep Chand stated that Balwan gave gandasa blow to Badlu on his head, Hari Singh gave gandasa blow on the head of Badlu, Subhash gave gandasa blow when Badlu was lying on the ground and three gandasa blows were caused by Balbir to Badlu which hit on his head and elbow. Similarly, when the complainant tried to rescue Badlu, accused Subhash gave him two gandasa blows twice on his head, Hari Singh gave gandasa blow on his Arms and when he fell down the accused persons gave number of gandasa blows to him. All this goes to show that the medical evidence synchronizes with the ocular version and all the injuries given by sharp edged weapon by the accused shows their presence at the spot. Nothing was brought on record to reveal if Balbir and Balwan were not present at the time of occurrence.
Now coming to the right of private defence. Before we ponder over the availability of such right, we need to look into the facts as established on record from the evidence. There was a dispute between the parties over the piece of land measuring 0-15 marla. Though the complainant party pleaded partition, similarly, the accused claim themselves to be in exclusive possession of the said plot, yet no document indicating that either of the party was in possession over the plot has been proved. The fight took place in the street and not in the plot. The withdrawal of the suit by Hari Singh also falsifies his stand and impels us to hold that he could not support his claim in the court.
There are two injured on the side of the accused and the injuries suffered by them are simple in nature. The injuries on the person of Hari Singh appear to be the result of one blow on the teeth causing injuries on the socket of the teeth also. Besides there are three minor injuries; one on the scalp, on the back of left hand proximal to the middle finger and back of the lower left arm. The doctor has opined that these injuries could be the Crl. Appeal No. 269-DB of 2002 -11- *** result of scuffle whereas majority of the injuries suffered by the deceased Badlu as well as Deep Chand are on the head and are more in number. Deep Chand suffered 8 injuries whereas Badlu suffered 9 injuries and died within no time while reaching the hospital. The accused have not taken any specific plea of private defence rather they had taken contradictory stand as Brahm Singh (PW5) was suggested that it was only Badlu who had caused them injuries, whereas, according to the suggestion given to Deep Chand, Badlu and Deep Chand had caused them injuries. The accused did not explain as to how the complainant party suffered injuries.
Now while putting the aforesaid parameters on the altar of the plea as set out by the accused qua the right of private defence, it would not be possible to hold that such bold plea is available to the accused. A right of private defence is available against an unlawful aggression without any retribution. The aggression by way of causing injuries should be of such a nature that there is reasonable apprehension in the mind of the accused that without retribution they could suffer more injuries and there is apprehension of death or grievous hurt. Right of private defence could be used as shield to justify an act of aggression. If a person goes with a gun to kill another, the intended victim is entitled to act in self-defence and if he so acts there is no right in the former to kill him in order to prevent him from acting in self- defence. While providing for the right of private defence, the Penal Code has surely not advised a mechanism whereby an attack may be provoked as a pretence for killing. It has been observed in case State of U.P. vs. Ram Swarup and another, 1974 AIR (SC) 1570 which is known as megnacarta for adjudging the availability of the right of private defence. Their Lordships while discussing the doctrine of "retreat to wall" or "retreat to ditch" as expounded by Blackstone, observed that it has undergone change and cannot be applied to cases where the victim being in place where he has a right to be, is in face of a grave uninvited danger, yet at least those in fault must attempt to retreat unless the severity of the attack renders such a course impossible. The exemption from retreat in generally available to the faultless alone. Their Lordships while further elaborating the situation Crl. Appeal No. 269-DB of 2002 -12- *** observed as under :-
".... It is a necessary incident of the right of private defence that the force used must bear a reasonable proportion to the injury to be averted, that is, the injury inflicted on the assailant must not be greater than is necessary for the protection of the person assaulted. Undoubtedly, a person in fear of his life is not expected to modulate his defence step by step or tier by tier, for as justice Holmes said in Brown v. United States (1921) 256 US 335 "detaching reflection cannot be demanded in the presence of an uplifted knife". But Section 99 provides in clear and categorical terms that
(a) The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
Section 100 of the Indian Penal Code makes out the limitation, restriction and the extent to which the private defence of the body extends. It states that the said right extends to the "voluntary causing death if the offence which occasions in exercise of the right is of such a nature as may, to the extent material, reasonably cause the apprehension that death or grievous hurt will otherwise be the consequences of the assault." Their Lordships in Ram Swarup's case (supra) further observed that when the right of private defence ends with the necessity with it. Under Section 102 of the Indian Penal Code, right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises and it continues as long as such apprehension of danger continues.
While relying upon Ram Swarup's case (supra), the Apex Court in case Yogendra Morarji vs. The State of Gujarat, 1980 AIR (SC) 660 while discussing Sections 99, 100 and 102 of the Indian Penal Code, framed the question as under :-
Crl. Appeal No. 269-DB of 2002 -13-*** "Whether this right extended to the voluntary causing of death?"
To this question, their Lordships answered as under :-
"... Answer to this question depends on whether in the circumstances, the accused had an immediate apprehension of death or grievous hurt at the hands of the complainant party. In this connection, it is to be noted that it has not been established that Kana deceased or any of his companions was carrying any arm. Even if we take into account that the complainant party pelted the vehicle with stones, then also it being a closed station wagon, the inmates could not reasonably apprehend death or grievous hurt as a result of this stone- throwing. If his vehicle had been encircled, as the accused says, he could have accelerated his vehicle and easily run through the cordon, even if, in the process he knocked down some determined obstructor. After running through the cordon he could speed further to Bhuj, as he did after the incident."
Again, the right of private defence became subject of discussion in case State of Haryana vs. Dharamvir and others 1997 (2) R.C.R. (Criminal) 464 wherein their Lordships observed as under :-
"22. We reach the same conclusion through a different route - even if we proceed on the assumption that the finding of the High Court that the accused party came out in the lane and attacked the complainant party after the latter had damaged the outer door of their house is a proper one. The offence that was committed by the complainant party by causing such damage would amount to 'mischief' within the meaning of Section 425 of the Indian Penal Code and, therefore, in view of Section 105 of the Indian Penal Code the accused would have Crl. Appeal No. 269-DB of 2002 -14- *** been entitled to exercise their right of private defence of property so long as the complainant party continued in the commission of the mischief. In other words, after the damage was done, the accused had no right of private defence of property, which necessarily means that when they attacked the complainant party in the lane they were the aggressors. Consequently, it was the complainant party - and not the accused - who was entitled to exercise the right of private defence of their persons; and their act of gunning down Lachhi after four of them were assaulted by the accused party with deadly weapons would not be an offence in view of sections 96 and 100 of the Indian Penal Code in drawing this conclusion we have drawn sustenance from the following finding of the High Court which, in our view, is based on correct appraisal of the evidence :
"However, from the evidence on record it is quite apparent that Lachhi, companion of the accused, was shot after he and Subhash accused had allegedly inflicted injuries to Yogesh (deceased) and Rajesh P.W. By that time both Dinesh Chander and Suraj Bhan had already received injuries at the hands of the accused party. The sequence of events clearly shows that Lachhi deceased received fire arm injuries at the fag end, when Yogesh, Rajesh Kumar and Dinesh Chander, and Suraj Bhan had already received injuries on their person at the hands of the accused party."
The Apex Court in case Sekar @ Raja Sekharan vs. State rep. By Inspector of Police T. Nadu, 2002 (4) R.C.R. (Criminal) 477 observed that in order to find out whether the right of private defence is available to the accused, the court is to go into the facts and evidence as to adjudge the facts and circumstances of each case. No test in the abstract in observing Crl. Appeal No. 269-DB of 2002 -15- *** any such test could be laid down. As per provisions of Section 97 and 100 of Indian Penal Code, the right of private defence of the body is available only if there is reasonable apprehension that the death or the grievous hurt would be consequence of the assault. While making such observations, their Lordships placed reliance on the judgment delivered in case Mohindra Pal v. State of Punjab, AIR 1979 SC 577.
With the passage of time, the law further continued developing. It was noticed that the right of private defence is question of fact. No specific plea is required to be taken and the said right could be examined from the evidence on record. The number of injuries not the sole criteria for determining the availability of such right. The Apex Court in case Krishna and another vs. State of U.P. 2007 (3) R.C.R. (Criminal) 620 laid down the following guidelines :-
1. 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.
2. It is not necessary for the accused to lead 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.
3. Under Section 105 of Evidence Act burden of proof is on the accused, who sets up the plea of self- defence.
Burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.
4. An accused taking the plea of 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.
5. Accused must satisfy the court that harm caused by him Crl. Appeal No. 269-DB of 2002 -16- *** was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused.
6. If a person has a right of private defence of body under Section 97 IPC, 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.
7. 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 in favour of his pleas.
8. Number of injuries is not always a safe criterion for determining who the aggressor was.
9. 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 injuries should be minor and superficial.
10. 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 cause to him.
11. Right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, or 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. AIR 1963 SC 612 relied.
12. A person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and Crl. Appeal No. 269-DB of 2002 -17- *** in the heat of circumstances, the number of injuries required to disarm the assailants who were armed with weapons. 1991 (3) RCR (Crl) 91 (SC) relied.
13. 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. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived.
Again, the Apex Court, in case Jesu Asir Singh and others vs. State through Inspector of Police 2007 (4) R.C.R. (Criminal) 38 observed as under :-
1. The plea of right of private defence 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.
2. The number of injuries is not always a safe criterion for determining who the aggressor was.
3. 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.
4. 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 far outweighs the effect of the omission on the part of the prosecution to explain the injuries. AIR 1976 SC 2263 relied.
5. To claim a right of private defence extending to Crl. Appeal No. 269-DB of 2002 -18- *** 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.
6. 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.
7. 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. AIR 1963 SC 612 relied.
8. Merely because there was a quarrel and some of the accused persons sustained injuries, that does not confer a right of private defence extending to the extent of causing death as in this case. Though such right cannot be weighed in golden scales, it has to be established that the accused persons were under such grave apprehension about the safety of their life and property that retaliation to the extent done was absolutely necessary."
Again, in 2008, the Apex Court in case Narain Singh and Ors. vs. State of Haryana, 2008 (2) R.C.R. (Criminal) 756, while taking stock of many judgments including Lakshmi Singh v. State of Bihar, AIR 1976 SC 2263, Mohinder Pal Jolly v. State of Punjab, AIR 1979 SC 577 and Sekar alias Raja Sekharan v. State represented by Inspector of Police T.N. 2002 (4) R.C.R. (Criminal) 477, touched the entire law relating to the right of private defence while observing it is not always essential to take plea of right of private defence even in the absence of the said specific plea or the Crl. Appeal No. 269-DB of 2002 -19- *** evidence led in that regard. The court could make conclusions by making reference to the circumstances transpiring from the prosecution evidence itself. The burden to prove the said plea lies heavily upon the accused which could be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on the record. The court also held that non explanation of the injuries sustained by the accused at the time of occurrence or in the occurrence of altercation is very important circumstance but mere non explanation of the injuries by the prosecution may not effect the prosecution case in all cases. While relaxing the commencement of right of private defence to make it available to the accused amongst other circumstances, the court observed as under :-
"(1) 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.
(2) 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.
(3) 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 the situation of peril or not by any microscopic and pedantic scrutiny.
(4) The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step with any arithmetic exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances.Crl. Appeal No. 269-DB of 2002 -20-
*** (5) Right of private defence is essentially a defensive right circumscribed by the governing statue i.e. The IPC, available only when the circumstances clearly justify. (6) A right to defend does not include a right to launch an offensive particularly when the need to defend no longer survived."
Similar guidelines were issued by the Apex Court in another judgment delivered in case Darshan Singh vs. State of Punjab and another, (2010) 2 SCC 333 and Sikandar Singh and Ors. vs. State of Bihar (2010) 7 SCC 477. Recently, in the judgment delivered in case Ranjitham vs. Basavaraj and others 2012 (1) R.C.R. (Criminal) 117, the Apex Court issued directions to the courts before extending benefit of private defence to the accused and observed as under :-
"That the deceased was stabbed by A2 is admitted. A2 has taken up the defence of right of private defence. In several decisions, this court has considered the nature of this right. Right of private defence cannot be weighed in a golden scale and even in absence of physical injury, in a given case, such a right may be upheld by the court provided there is reasonable apprehension to life or reasonable apprehension of a grievous hurt to a person. It is well settled that the onus of proof on the accused as to exercise of right of private defence is not as heavy as on the prosecution to prove the guilt of the accused and it is sufficient for him to prove the defence on the touchstone of preponderance of probabilities (See Sat Narain v. State of Haryana (2009) 17 SCC 141). In V. Subramani & Anr. v. State of Tamil Nadu, 2005 (2) R.C.R. (Criminal) 77 :
(2005) 10 SCC 358, this Court examined the nature of this right. This court held that whether a person legitimately acted in exercise of his right of private defence is a question of fact to be determined on the facts and circumstances of each case. In a given case it is open to the Court to consider such a plea Crl. Appeal No. 269-DB of 2002 -21- *** even if the accused has not taken it, but the surrounding circumstances establish that it was available to him. The burden is on the accused to establish his plea. The burden is discharged by showing preponderance of probabilities in favour of that plea. 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."
While examining the gamut of facts and circumstances of the present case in the light of the judgments as referred to above and the guidelines issued by the Apex Court from time to time, we are of the consistent opinion that the accused were never in exclusive possession of the plot in dispute so as to protect the same. All the four accused came armed with deadly weapons, with pre- determined mind and with an intention to cause damage to the complainant party and attacked Badlu that too without asking him the cause, particularly when he was not doing any overt act towards taking of the possession and was standing at a distance of about 100 yards from the disputed plot, when Deep Chand tried to intervene, they attacked and caused simple as well as grievous injuries to him also and in that act of aggression if the accused party had also suffered some injuries that does not enable them to take the plea of private defence. The facts and circumstances reveal that though Hari Singh had tried to assert his claim through the court of law, but having failed to substantiate it, withdrew the suit, yet he as not satisfied and prevented the entry of his own brothers in the joint land. Thus, the plea of right of private defence is not available to them.
Resultantly, we do not find any merit in the appeal and the same is dismissed.
(Hemant Gupta) (A.N. Jindal)
Judge Judge
April 16, 2012
deepak