2007 JTR(SC) 1087
2007 57 AIC 12 ; 2007 4 AICLR 460 ; 2008 1 AIR(Jhar)(R) 586 ; 2007 AIR(SC) 3015 ; 2007 AIR(SCW) 5472 ; 2007 AllMR(Cri)(SC) 2595 ; 2007 3 ALT(Cri)(SC) 267 ; 2007 3 ApexCJ(SC) 382 ; 2007 4 CriCC 224 ; 2007 3 Crimes(SC) 333 ; 2007 CrLJ 4310 ; 2008 1 EastCrC(SC) 247 ; 2007 10 JT 262 ; 2007 3 MPWN 276 ; 2007 4 RCR(Cri) 38 ; 2008 1 RLW(Raj) 489 ; 2007 10 Scale 110 ; 2007 12 SCC 19 ; 2008 2 SCC(Cri) 192 ; 2007 9 SCR 92 ; 2007 2 WLC 550 ; 2007 KHC 3940 ; 2007 5 Supreme 836
2007(5) Supreme 836
Supreme Court of India
(From Madras High Court)
Dr. Arijit Pasayat & D.K. Jain, JJ.
Jesu Asir Singh & Ors. — Petitioners
versus
State through Inspector of Police — Respondent
Appeal (Crl.) 1090 of 2007
(Arising out of SLP (Crl.) No. 3611 of 2006)
Decided on : 20-08-2007
important points
Injuries on the body of the accused persons and their number may not necessarily raise a presumption that the accused persons had caused injuries in exercise of the right of private defence.
In order to find 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.
Act Referred :INDIAN PENAL CODE : S.96, S.302
(A) The offences punishable under Sections 302 and 341 of the Indian Penal Code, 1860, intersect with the principles governing the right of private defence under Sections 96, 97, 98, 99, 100, 101, 102, and 105 of the Indian Penal Code. Section 302 addresses murder, while Section 341 defines wrongful restraint. The right of private defence under Sections 96 to 106 is contingent upon reasonable apprehension of harm and is limited by Section 99, particularly when the defence extends to causing death. Sections 102 and 105 specify the commencement and continuance of this right in relation to body and property, requiring that the accused demonstrate a reasonable apprehension that death or grievous hurt would be caused without which the extreme retaliation would not be justified.
(B) Key legal principles include that the number of injuries is not determinative of the right of private defence; the defence must be established on objective facts and reasonable grounds. The burden lies on the accused to prove that the defence was proportionate and necessary. Cumulative minor injuries or speculative claims do not satisfy the threshold. The prosecutions version, if credible and corroborated, can prevail even if some investigative lapses are noted. Cross-examination may clarify but does not automatically dismantle a well-evidenced prosecution case.
Facts of the case:
The incident occurred around 06:30 a.m. on 18.09.1993, where the deceased was wrongfully restrained and attacked by multiple accused persons. The accused, related to the deceaseds wife who had left to cohabit with the deceased, allegedly caused fatal injuries using weapons. The deceased was brought to a hospital and pronounced dead, while one accused exhibited minor injuries. The prosecutions version relied on witness testimony and medical evidence indicating multiple injuries consistent with assault. The accused pleaded innocence and raised the plea of right of private defence, arguing that the deceased was the initial aggressor.
Findings of Court:
The trial court convicted the appellants based on the credible evidence of the prosecution witness, while acquitting the co-accused. The High Court upheld the conviction, finding that the injuries sustained by the accused did not establish a reasonable apprehension of grave harm warranting fatal retaliation. The plea of right of private defence was rejected due to lack of credible evidence supporting the claim of necessity. The court held that the prosecution version remained reliable despite minor investigation gaps, and the accused failed to prove that their actions were in exercise of private defence extending to death.
Issues:
Whether the accused had a valid right of private defence extending to causing death under Sections 302 and 341 IPC. Whether the prosecution version, despite cross-examination queries, was sufficient to sustain conviction. Whether minor or unexplained injuries on the accused negated the defence of private defence.
Ratio Decidendi:
The court held that the number of injuries alone cannot establish private defence; the defence must be grounded on objective, reasonable apprehension of death or grievous hurt. The prosecutions credible and consistent evidence, independent of the accuseds injuries, outweighed the speculative claim of self-defence. The burden on the accused to prove proportionality and necessity was not met, leading to the dismissal of the appeal.
Result:
The appeal is dismissed, and the convictions under Sections 302 and 341 of the Indian Penal Code are upheld.
(A) The offences punishable under Sections 302 and 341 of the Indian Penal Code, 1860, intersect with the principles governing the right of private defence under Sections 96, 97, 98, 99, 100, 101, 102, and 105 of the Indian Penal Code. Section 302 addresses murder, while Section 341 defines wrongful restraint. The right of private defence under Sections 96 to 106 is contingent upon reasonable apprehension of harm and is limited by Section 99, particularly when the defence extends to causing death. Sections 102 and 105 specify the commencement and continuance of this right in relation to body and property, requiring that the accused demonstrate a reasonable apprehension that death or grievous hurt would be caused without which the extreme retaliation would not be justified.
(B) Key legal principles include that the number of injuries is not determinative of the right of private defence; the defence must be established on objective facts and reasonable grounds. The burden lies on the accused to prove that the defence was proportionate and necessary. Cumulative minor injuries or speculative claims do not satisfy the threshold. The prosecutions version, if credible and corroborated, can prevail even if some investigative lapses are noted. Cross-examination may clarify but does not automatically dismantle a well-evidenced prosecution case.
Facts of the case:
The incident occurred around 06:30 a.m. on 18.09.1993, where the deceased was wrongfully restrained and attacked by multiple accused persons. The accused, related to the deceaseds wife who had left to cohabit with the deceased, allegedly caused fatal injuries using weapons. The deceased was brought to a hospital and pronounced dead, while one accused exhibited minor injuries. The prosecutions version relied on witness testimony and medical evidence indicating multiple injuries consistent with assault. The accused pleaded innocence and raised the plea of right of private defence, arguing that the deceased was the initial aggressor.
Findings of Court:
The trial court convicted the appellants based on the credible evidence of the prosecution witness, while acquitting the co-accused. The High Court upheld the conviction, finding that the injuries sustained by the accused did not establish a reasonable apprehension of grave harm warranting fatal retaliation. The plea of right of private defence was rejected due to lack of credible evidence supporting the claim of necessity. The court held that the prosecution version remained reliable despite minor investigation gaps, and the accused failed to prove that their actions were in exercise of private defence extending to death.
Issues:
Whether the accused had a valid right of private defence extending to causing death under Sections 302 and 341 IPC. Whether the prosecution version, despite cross-examination queries, was sufficient to sustain conviction. Whether minor or unexplained injuries on the accused negated the defence of private defence.
Ratio Decidendi:
The court held that the number of injuries alone cannot establish private defence; the defence must be grounded on objective, reasonable apprehension of death or grievous hurt. The prosecutions credible and consistent evidence, independent of the accuseds injuries, outweighed the speculative claim of self-defence. The burden on the accused to prove proportionality and necessity was not met, leading to the dismissal of the appeal.
Result:
The appeal is dismissed, and the convictions under Sections 302 and 341 of the Indian Penal Code are upheld.
Right of Private Defence - Cited to establish that the number of injuries is not always a safe criterion for determining the aggressor and that non-explanation of injuries by prosecution may not affect the case if evidence is clear and cogent.
Right of Private Defence - Cited to explain that the right of private defence commences when there is a reasonable apprehension of danger and ceases when the threat is destroyed.
Right of Private Defence - Cited to highlight the legal position regarding the right of private defence and its limits in cases involving voluntary causing of death.
Right of Private Defence - Cited to reinforce the principle that the right of private defence must be established by evidence and cannot be based on surmises or speculation.
JUDGMENT
Dr. ARIJIT PASAYAT, J.—
1.Leave granted.
2.Appellants call in question legality of the judgment rendered by a Division Bench of the Madras High Court upholding the conviction of the appellants while directing acquittal of the co-accused. Appellants and the co-accused for the sake of convenience are described as A1, A2, A3 and A4. The appellants are A1, A2 and A3 and have been convicted for offence punishable under Section 302 and 341 of the Indian Penal Code, 1860 (in short the IPC). A4 was charged for offence punishable under Section 302 read with Sections 109 and 341 IPC. Each of the appellants was sentenced to undergo imprisonment for life and one month respectively for the aforesaid two offences.
3.Prosecution version as unfolded during trial is as follows :
“The occurrence is shown to have taken place at about 06.30 a.m. on 18.09.1993, by Al to A4 who wrongfully restraining Gift (hereinafter referred to as deceased) and in course of the same transaction at the instigation of A4, Al to A3 attacked him fatally, resulting in his death. To prove their case the prosecution examined PWs.1 to 15 besides marking Exs.P1 to P.30 and M.Os 1 to 10. A4 is mother of Al to A3. PW-1 is the informant. PW 4 is the mother of PW.1. PW.4 and A4 are sisters. PW.5 is the wife of Al. PW5s sister is Jenitha, who was the wife of deceased.There was prior enmity between the two families and they were not in talking terms. This was because Jenitha, wife of the deceased started living with AI by deserting her husband.
The deceased married Jenitha about 1= years prior to the occurrence and a female child was born to them. The two families were not in talking terms a month prior to the occurrence. Thereafter, the deceased and his child were living only with PW.1. On 10.9.1993 deceased went to the house of Al and asked his wife to come back with him and there a quarrel arose. At about 5.00 p.m. on that day, all the four accused came to the house of PW-1 and asked her the whereabouts of the deceased and also told her that in their absence the deceased had called his wife and, therefore, he must mend his ways; saying so, they damaged the tube lights, cots and other house-hold articles; out of grace no complaint was given. Raja is her son and as he fell sick, and was admitted in the hospital on 17.9.93 and by his bed side PWs.1, 4 and the deceased were in the hospital. At about 6.30 a.m. on 18.9.93, PW.1 and the deceased came home to take some coffee to the hospital and near the house of PW 2 when they were proceeding from west to east, the accused came from the opposite direction; Al to A3 were armed with weapons, on seeing them Gift, the deceased, out of fear, left the cycle and started running by a lane near the house of PW.2. Seeing that A4 orally declared that as he is running, he should not be allowed to run and must be killed. Her brother, i.e. the deceased, thereafter passed the house of PW.2 and at that stage Al to A3 restrained him; Al cut him twice on his head and when her brother attempted to thwart by stretching his arms, A2s attack fell on his right hand, this was followed by A3 indiscriminately cutting on the other parts of his body and as they were so cutting, one of the attacks aimed by A2 landed on the left wrist of A1 and the attack aimed by A3 landed on the right hand of A1. She shouted and PW 2 came running; at that time, all the accused made good their escape with the weapons of offences in their hands. She went to the house to get some money to take her brother to the hospital, where she found her house damaged; doors, windows and other things were broken; two of her brothers friends, namely, Aaroon, Singh came there and with their help she took her brother to the Government Hospital Kottar, where he was pronounced dead. PW.-12 examined her and reduced into writing what she stated. She read it and signed in that complaint which is Ex. P.-1. The personal wearing apparels of the deceased, were bloodstained and they were recovered. PW.2 witnessed the occurrence.
PW 10 is the Causality Medical Officer in the Government Headquarters Hospital at Nagercoil before whom at 8.00 a.m. on 18.9.1993, the deceased, was brought for injuries stated to have been sustained by him at the hands of three known persons. On him he found various symptoms, in all, 22 injuries and issued Ex. P-12, accident register. He sent Ex. P-13 intimation to the police and Ex. P-14 is the death intimation. According to him, except injury No.3, all the injuries could have been caused by a weapon like an aruval. At 7.45 am Al appeared before him for injuries stated to have been sustained by him at 6.30 a.m. at the hands of a known person, by using a cutting knife. He found two injuries and issued Ex.P. 15, accident register. Ex.P. 13 is the intimation sent by him to the police regarding the treatment on Al.
PW. 12 was the head constable who had received information from the Government Head Quarters Hospital as well as the death intimation of the deceased. PW 14 was the investigating officer, PW 9 is the medical officer who conducted the post mortem and noted 22 injuries on the body of the deceased. After completion of the investigation charges were framed. The accused pleaded innocence and false implication. Since the accused persons pleaded innocence, trial was conducted. 15 witnesses were examined to further the prosecution version.”
4.Trial court placed reliance on the evidence of PW-1 and found all the four persons guilty. An appeal was preferred by the appellants taking the view that the evidence of PW-1 was not believable. Appellants took the stand that the deceased was the aggressor who had assaulted A-1 causing two injuries. In any event the accused person had acted in exercise of the right of private defence and, therefore, no offence was made out. Reliance was made on the evidence of Exhibit P 20 to contend that the information lodged by A1 was not properly enquired into. The High Court analysed the evidence of PW-1 and held that investigation in respect of Exhibit P-20 was conducted properly and the prosecution version did not get affected even if it is held that there was some lapse in conducting investigation on the basis of Exhibit P-20. The plea of right of private defence was also described. However, the High Court accepted that evidence was not sufficient to convict A4.
5.Learned counsel for the appellant submitted that the prosecution version is unbelievable. The presence of PW-1 is highly doubtful. When the evidence has been discarded in respect of A-4, conviction could not have been maintained for the present appellants. In any event right of private defence aspect has not been properly considered by the High Court.
6.Learned counsel for the State supported the order.
7.We shall first deal with the plea relating to right of private defence.
8.The number of injuries is not 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 so caused on the accused probabilises 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 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 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. [See: Lakshmi Singh v. State of Bihar,1 (AIR 1976 SC 2263). A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject matter of right of private defence. 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, 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 100 to 106 is controlled by Section 99. 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 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. Sections 100 and 101, IPC define the limit and extent of right of private defence.
9.Sections 102 and 105, IPC deal with commencement and continuance of the right of private defence of body and property respectively. The 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. The right lasts so long as the reasonable apprehension of the danger to the body continues. In Jai Dev v. State of Punjab,2 (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, there can be no occasion to exercise the right of private defence.
10.The above position was highlighted in Rizan and Another vs. State of Chhattisgarh, through the Chief Secretary, Govt. of Chhattisgarh, Raipur, Chhatttisgarh,3 (2003 (2) SCC 661), and Sucha Singh and Anr. v. State of Punjab,4 (2003 (7) SCC 643).
11.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. No evidence much less cogent and credible was adduced in this regard. The right of private defence, as claimed by the accused persons, has been rightly discarded.
12.Even if the High Court found the evidence to be not sufficient to convict A4 that does not in any way affect credibility of PW 1s evidence so far as present appellants are concerned. It is to be noted that there was no suggestion to PW 1 that A1 acted in exercise of right of private defence. There is not even any material brought in this regard. Certain questions were put to PW 1 in her cross examination. They are as follows :
“I do not see directly that the accused had attacked or quarreled with Gift earlier to the occurrence. The accused did not notice me. When the accused chased by brother I did not shout. I shouted when the accused attacked my brother. The Ist accused attacked my brother on his head twice. I could not say where the two blows landing on his head. The 2nd accused attacked my brother on his right hand and middle of his head. It is not correct to state that I had not deposed in the enquiry by police. The 3rd accused attacked him on his back, nose, hand and leg. I cannot say how many blows he had inflicted. The incident had taken place around 15 minutes. It is not correct to state that when my brother sustained injuries the accused 2,3 and 4 were not present there. It is not correct to state that the incident did not take place near by the lane of Albert Nayagams house. My brother died only after taking him to hospital. It is correct to state that the police station is located on the way to hospital.”
13.The question put in the cross examination to a great extent probabilise the prosecution version. Though questions put in cross-examination are not always determinative in finding an accused guilty, they are certainly relevant.
14.Looked at from any angle the appeal is without merit and is dismissed.
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