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Saturday, January 19, 2013

Section 96 IPC - right of private defence = whether the right of private defence is still available to the appellants when they chased Prabhat near Durga-ki-Dhani and inflicted lathi blows on him? We have already noted the evidence of PWs 7, 8 and 10 which clearly established that Prabhat (since deceased) was not present at the place where Rameshwar was assaulted. It is also seen that after inflicting injuries on the person of Rameshwar, the appellants ran towards Prabhat, who was standing 10 steps away from the place of incident. It is further seen from their evidence that after seeing the incident relating to the death of Rameshwar, Prabhat started running towards Durga-ki-Dhani and he was chased by the accused persons and they inflicted lathi blows on his person. In such a situation, we are of the view that the appellants have no right to invoke the right of self defence by chasing Prabhat and causing fatal injuries on him. In other words, the reasonable apprehension has disappeared when they noticed that Prabhat was running away from the scene in order to escape, in such circumstances though the appellants were entitled to the plea of private defence insofar as the death of Ramehwar is concerned, they are not justified in availing the same for the cause of death of Prabhat. On the other hand, they exceeded their limit and the materials placed by the prosecution clearly show that they chased Prabhat at some distance near Durga-Ki-Dhani, pushed him down and inflicted several blows with lathis due to which he died. In such circumstances, the trial Court was justified in convicting the appellants under Section 302 read with Section 34 of IPC and sentencing them to suffer RI for life. Taking note of all these aspects, we are of the view that the High Court was fully justified in confirming the order of conviction and sentence insofar as the present appellants and dismissing the appeal in respect of them. 15) In the light of the above discussion, we find no merit in the appeal and the same is accordingly dismissed. We wish to record our appreciation for the assistance rendered by Mr. Kanhaiya Priyadarshi, learned amicus curiae in putting forth the case of the appellants.


                                     REPORTABLE


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION


                     1 CRIMINAL APPEAL NO. 1156 OF 2007




Gopal & Anr.                                          .... Appellant(s)

            Versus

State of Rajasthan                               .... Respondent(s)

                                      2





                               J U D G M E N T



P.Sathasivam,J.

1)    This appeal is filed against the judgment and order  dated  15.04.2006
passed by the High Court of Judicature for  Rajasthan  at  Jaipur  Bench  in
D.B. Criminal Appeal No. 247 of 2001 whereby the High  Court  dismissed  the
appeal in respect of the appellants herein and  confirmed  their  conviction
and sentence awarded by the Court of Additional  Sessions  Judge,  Shahpura,
District Jaipur, Rajasthan vide judgment dated 18.04.2001  in  Session  Case
No. 24 of 2000.

2)    Brief facts:
(a)   As per the  prosecution  case,
 Rameshwar  (since  deceased)  was  the
guarantor for money settlement agreement between one  Santosh  and  Jagdish,
residents of Tehsil Bishangarh, P.S. Manoharpur,  Jaipur,  Rajasthan.  
When
Jagdish started demanding money from Santosh prior  to  the  expiry  of  the
agreement, Rameshwar intervened between them.  
Since  then  Jagdish  started
keeping a grudge against him which is the root cause of  the  case  in  hand
and resulted into death of two persons in a fight between them.
(b)   On 16.07.2000, at 07.30 a.m., when Bhagwan Sahai (PW-8), Bodu Ram (PW-
7) and Rameshwar (since deceased) were going towards the well  of  Padmawati
while crossing the field of one Prabhat  (since  deceased),  at  that  time,
Gopal  (A-1),  Jagdish,  Mahesh  (A-3),  Patasi,  Teeja,  Gokali  and   Sita
belaboured Rameshwar by inflicting lathi and axe blows.  
Due to the  attack,
Rameshwar died on the spot.  
When  Bhagwan  Sahai  and  Bodu  Ram  tried  to
intervene, they were also beaten by the accused party.  
When Prabhat  (since
deceased), who was working in his  field  along  with  his  son-Badri  Yadav
(PW-10), approached towards Rameshwar for help, he was also beaten to  death
by the accused persons.
(c)   On the very same day, at 09.45 a.m., Badri Yadav (PW-10)  submitted  a
written report at P.S. Manoharpur relating to the above-said  incident.  
 On
the basis of the aforesaid report, a case under Sections 147, 148, 149,  302
and 323 of the Indian Penal Code, 1860 (in short ‘the IPC’)  was  registered
against the accused persons,  viz.,  Gopal  (A-1),  Jagdish,  Mahesh  (A-3),
Teeja, Patasi and Gokali  and  the  same  was  committed  to  the  Court  of
Additional  Sessions  Judge,  Shahpura,  District  Jaipur,   Rajasthan   and
numbered as Sessions Case No. 24 of 2000.
(d)   The Additional Sessions Judge, Shahpura after trial,  by  order  dated
18.04.2001, convicted Teeja under Section 302 of IPC and Gopal, Jagdish  and
Mahesh under Section 302 read with Section 34 of IPC and sentenced  them  to
suffer rigorous imprisonment (RI) for life alongwith a  fine  of  Rs.1,000/-
each, in default, to further  undergo  simple  imprisonment  for  3  months.
Gokali and Patasi Devi were convicted under Section  323  of  IPC  and  were
sentenced to the period already undergone by them in custody.

(e)   Challenging the said order of conviction  and  sentence,  the  accused
persons filed appeal being D.B. Criminal Appeal No. 247 of 2001  before  the
High Court.  By impugned  order  dated  15.04.2006,  the  High  Court  while
modifying the order dated  18.04.2001  of  the  Additional  Sessions  Judge,
allowed the appeal in respect of  Teeja,  Jagdish,  Gokali  and  Patasi  and
dismissed the appeal in respect of  Gopal  (A-1)  and  Mahesh    (A-3),  the
appellants herein, and confirmed their conviction and  sentence  awarded  to
them.
3)    Heard Mr. Kanhaiya Priyadarshi, learned amicus  curiae  appearing  for
the appellants and Mr. Ram Naresh Yadav, learned counsel appearing  for  the
respondent-State.
Contentions:
4)    After  taking  us  through  the  entire  material  relied  on  by  the
prosecution and  the  defence,  learned  amicus  curiae  appearing  for  the
appellants submitted that it is evident from the site plan that the  members
of the complainant’s party were the aggressors and they came  to  the  field
of the accused persons and  attacked  them.  
He  also  submitted  that  the
appellants also received injuries at the hands of  the  complainant’s  party
and the prosecution had failed to explain the same.
Finally,  he  submitted
that since the members of the complainant’s party were  the  aggressors  and
attacked on the accused persons causing injuries to Gopal (A-1)  and  Mahesh
(A-3) (the appellants herein), the accused had a right of  private  defence,
consequently, they are entitled for acquittal.
5)    On the other hand, learned counsel for the respondent-State  supported
the findings of the trial Court and the order of the  High  Court  affirming
the conviction and sentence insofar as the  appellants  are  concerned  and,
consequently, prayed for dismissal of this appeal.
6)    We have carefully considered the rival  contentions  and  perused  the
relevant materials.
Discussion :
7)    It is a case of double  murder.   Admittedly,  Rameshwar  and  Prabhat
were died in the incident in question.  Though, initially,  the  prosecution
proceeded against 6 persons and the trial Court convicted and sentenced  all
of them, in the appeal before the High Court, except the present  appellants
(A-1 &   A-3), others were acquitted.
8)    In support of their claim,  the  prosecution  heavily  relied  on  the
evidence of Bodu  Ram  (PW-7)  and  Bhagwan  Sahai  (PW-8)  –  injured  eye-
witnesses and Badri Yadav (PW-10) – son of Prabhat (since  deceased).  
Bodu
Ram (PW-7), in his evidence has stated that about 4 months  back,  at  about
7.30 a.m., he along with his brother Bhagwan Sahai  and  uncle  -  Rameshwar
was going to work at the well.
When they reached near the field of Gopal (A-
1), they found that Gopal  (A-1),  Jagdish,  Mahesh  (A-3),  Patasi,  Teeja,
Gokuli were plucking round gourd (Tinda) from  their  field  and  on  seeing
them, they attacked on  them  and,  thereafter,  they  went  to  the  police
station at 10 o’ clock.
9)    Bhagwan Sahai (PW-8), in his evidence has stated that  at  7.30  a.m.,
when he along with Rameshwar (since deceased) and Bodu  Ram  (PW-7)  reached
near the field of Gopal (A-1), they noticed that the  accused  persons  were
plucking round gourd (Tinda) and on seeing them, they started fighting  with
them.
He further explained that Teeja had an axe and other  accused  persons
were having lathis.  Rameshwar was beaten by Mahesh (A-3) with lathi and  he
fell down.  Teeja hit Rameshwar with an axe on his  forehead  and  she  also
gave a hit at his armpit and one at his back.
He  further  stated  that  he
was hit by Gopal (A-1), Patasi and Jagdish with  lathis.   Bodu  Ram  (PW-7)
was hit by Gokuli on his forehead and Jagdish and Mahesh (A-3)  hit  him  at
his hand and armpit side respectively.
He  further  deposed  when  Prabhat,
who was working in the field alongwith his son Badri (PW-10), approached  us
in order to help, at that time, Gopal (A-1), Mahesh (A-3)  and  Jagdish  ran
after him and he (Prabhat) ran  back  towards  Durga-ki-Dhani  and  all  the
three accused after chasing him hit him with lathis.  Banshi,  Murli,  Gopal
and mother and wife of Badri had also seen Prabhat  (since  deceased)  being
beaten by them.  Prabhat and Rameswhwar both died  in  the  incident.
 Like
Bodu Ram (PW-7),  Bhagwan  Sahai  (PW-8)  also  sustained  injuries  and  he
categorically stated that on seeing that Prabhat was running towards  Durga-
Ki-Dhani, the present appellants and other accused persons  chased  him  and
hit him with lathis due to which he died.  His  evidence  corroborates  with
the statement of Bodu Ram (PW-7) and proves the case of the prosecution.
10)   Badri Yadav (PW-10), in his evidence has stated that  about  4  months
back, at about 7 to 8 a.m., when he was working  in  his  field  behind  his
house alongwith his father Prabhat (since deceased) who was  sitting  there,
at that  time,  he  noticed  Bodu  Ram  (PW-7),  Bhagwan  Sahai  (PW-8)  and
Rameshwar (since deceased) going towards  the  well.  
He  further  deposed
that when they reached near the field  of  Gopal  (A-1),  who  was  plucking
vegetables in his field along with Mahesh (A-3), Jagdish, Gokali, Teeja  and
Patasi, on seeing them coming, they attacked  on  the  complainant’s  party.
Teeja hit Rameshwar with an axe on his  neck.   When  Bodu  Ram  (PW-7)  and
Bhagwan Sahai (PW-8) tried to save him, Gokali and Mahesh (A-3) fought  with
them and Bhagwan Sahai (PW-8) was beaten by Patasi, Gopal and  Jagdish.   He
further stated that he saw the incident from a distance  of  20  steps.   He
also stated that when his father –  Prabhat  (since  deceased)  ran  towards
Durga-Ki-Dhani, Gopal (A-1), Jagdish and Mahesh (A-3) beat him with  lathis.
 He further explained that due to lathi blows, Rameshwar and  Prabhat  died.
From his evidence,  it is seen that the incident occurred in  the  field  of
Gopal (A-1) and after killing Rameshwar, the accused persons chased  Prabhat
and inflicted lathi blows, due to which, he also died.
11)   Dr. Shiv Kumar Tanwar, who did post mortem,  was  examined  as  PW-25.
He also explained that the death of Rameshwar and Prabhat  was  due  to  the
injuries inflicted with lathis.
12)   The materials placed and  relied  on  by  the  prosecution  show  that
Rameshwar (since deceased), Bodu Ram (PW-7) and  Bhagwan  Sahai  (PW-8)  had
gone to the field of the appellants and there was a fight between  both  the
groups.
It is also clear that the appellants fought  to  repel  the  attack
and in the course of incident, both sides sustained injuries,  as  a  result
of which, Rameshwar died. In such circumstances, it would  be  possible  for
this Court to accept the claim  of  the  appellants  that  since  they  were
defending themselves, they had a right of private  defence.  
In  fact,  the
High Court has accepted the above stand.
13)   Regarding the plea of  private  defence,
 it  is  useful  to  refer  a
decision of this Court in
V. Subramani & Anr. Vs. State of  T.N.  (2005)  10 SCC 358.
The following principles and conclusion are relevant:
      “11. The only question which needs to be  considered  is  the  alleged
      exercise of right of private defence. 
Section  96  IPC  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
      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  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 Munshi Ram v. Delhi Admn. (1968)  2  SCR  455,  State  of
      Gujarat v. Bai Fatima,(1975) 2 SCC 7, State of U.P. v.  Mohd.  Musheer
      Khan,  (1977)  3  SCC  562,  and  Mohinder  Pal  Jolly  v.  State   of
      Punjab,(1979) 3 SCC 30.) 
Sections 100 to 101 define the extent of  the
      right of private defence of body. 
If a person has a right  of  private
      defence of body under Section 97, 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. 
The  oft-quoted
      observation of this Court in Salim Zia v. State of U.P.,(1979)  2  SCC
      648  runs as follows: (SCC p. 654, para 9)
        “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 prosecution witnesses or by adducing  defence
      evidence.”
      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.”



Based on the above principles, in view of the discussion of the  prosecution
witnesses, viz., PWs 7, 8 and 10 coupled with the  fact  that  the  incident
occurred in the field of the appellants, who also sustained  injuries  which
is evident from the evidence of the doctor, who  examined  the  injuries  of
Gopal  (A-1)  and  Mahesh  (A-3)-appellants  herein,  the   stand   of   the
appellants, as rightly argued by learned amicus curiae, is to  be  accepted.
However, as per the prosecution story, not only Rameshwar but  in  the  same
incident Prabhat also died due to lathi blows inflicted  by  the  appellants
herein.
14)   The only moot question for  consideration  is  
whether  the  right  of private defence is still  available  to  the  appellants  when  they  chased Prabhat near Durga-ki-Dhani and inflicted  lathi  blows  on  him?  
We  have
already noted the evidence of PWs 7, 8  and  10  which  clearly  established
that
Prabhat (since deceased) was not present at the place  where  Rameshwar
was assaulted.  It is also  seen  that  after  inflicting  injuries  on  the
person of Rameshwar, the appellants ran towards Prabhat,  who  was  standing
10 steps away from the place of incident. 
 It is  further  seen  from  their
evidence that after seeing the incident relating to the death of  Rameshwar,
Prabhat started running towards Durga-ki-Dhani and  he  was  chased  by  the
accused persons and they inflicted lathi blows on his  person.   
In  such  a
situation, we are of the view that the appellants have no  right  to  invoke
the right of self defence by chasing Prabhat and causing fatal  injuries  on
him.  
In other words, the reasonable apprehension has disappeared when  they
noticed that Prabhat was running away from the scene in order to escape,  in
such circumstances though the  appellants  were  entitled  to  the  plea  of
private defence insofar as the death of Ramehwar is concerned, they are  not
justified in availing the same for the cause of death of  Prabhat.   
On  the
other hand, they exceeded their  limit  and  the  materials  placed  by  the
prosecution clearly show that they chased  Prabhat  at  some  distance  near
Durga-Ki-Dhani, pushed him down and inflicted several blows with lathis  due
to which he died.  
In such circumstances, the trial Court was  justified  in
convicting the appellants under Section 302 read with Section 34 of IPC  and
sentencing them to suffer RI for life.  
Taking note of  all  these  aspects,
we are of the view that the High Court was  fully  justified  in  confirming
the order of conviction and sentence insofar as the present  appellants  and
dismissing the appeal in respect of them.
15)   In the light of the above discussion, we find no merit in  the  appeal
and the same is accordingly dismissed.   We wish to record our  appreciation
for the assistance rendered by  Mr.  Kanhaiya  Priyadarshi,  learned  amicus
curiae in putting forth the case of the appellants.






                                  ………….…………………………J.


                                       (P. SATHASIVAM)




























                                    ………….…………………………J.


                                      (JAGDISH SINGH KHEHAR)
NEW DELHI;
JANUARY 18, 2013.
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