# Amar Singh (In Jail) v. State of U.P

- **Citation:** (2021) 9 ILRA 1260
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-26
- **Case number:** Criminal Appeal No. 2018 of 2019
- **Bench:** Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amar-singh-in-jail-v-state-of-u-p-47379
- **Pages:** 13

## Headnote

A. Criminal Law - Murder - Right of
private
defence
-
Code
of
Criminal
Procedure, 1973 - Sections 374(2), 313 &
437-A - Indian Penal Code,1860 -Sections
304 & 103 - Indian Evidence Act, 1872 -
Section 105- Arms Act,1959 - Section
25/27 - Accused need not raise specific
plea of self defence, court can consider its
availability even in absence of the plea
raised by the accused. (Para 26)

Indian Evidence Act, 1872: Section 105 -
S.105 of Evidence Act does not prevent
the Court from giving benefit of doubt
altogether to an accused under general
exceptions. It makes possible both kinds of
acquittal (i) by proving his plea fully and
another (ii) by raising genuine doubt in the
case. The doubt which the law contemplates is
certainly not that of a weak or unduly
vacillating, capricious, indolent, drowsy, or
confused mind. It must be the doubt of the
prudent man who is assumed to possess the
capacity to "separate the chaff from the grain".
(Para 28, 29, 30, 32)

In the present case certainly on behalf of
appellant/convict this plea of self defence in
general exceptions of IPC is neither raised in the
statement u/s 313 of Cr.P.C. of the accused, nor
the
same
has
been
elucidated
to
the
prosecution witnesses during cross-examination
on behalf of accused by the defence counsel.
Even no evidence has been adduced on behalf
of accused to prove the plea of self defence of
general exceptions of IPC. (Para 31)

Hon'ble Apex Court has held that if from the
evidence on record as a whole a reasonable
consequential doubt is created in the mind of
the court whether the accused is really guilty of
the offence; the plea of self defence in general
exceptions of IPC can be considered. (Para 32)

B. Indian Penal Code,1860 - Section 103 -
provides when the right of private defence
of property extends to causing death, if the
theft, mischief, or house-trespass, under such
circumstances
as
may
reasonably
cause
apprehension that death or grievous hurt will be
the consequence, if such right of private
defence is not exercised. (Para 33)

The trial court held guilty to the appellant for
culpable homicide not amounting to murder u/s
304
of
IPC
with
the
finding
that
the
appellant/convict exceeded the right of private
defence. (Para 24)

In the present case, from the prosecution
evidence on record, it is found that the
deceased Indersen had intruded in the house of
accused at 1.30 O'clock in the intervening night
of 14/15.07.2007 (Amavasaya), the entry at the
wee hours is certainly criminal housetrespass,
which
caused
reasonable
apprehension in the mind of inmates of the
house that some miscreant had intruded in their
house. Consequently the inmates of the house
of accused raised alarm. P.W. 1-Kallu Ram

## Text

_Characters 0–39,868 of 43,527. This is a partial read: ask again with offset=39868 for what follows._

1260 INDIAN LAW REPORTS ALLAHABAD SERIES

9. In Suchita Srivastava & Others
vs. Chandigarh Administration, AIR
2010 SC 235, the Supreme Court laid down
two tests, namely the 'best interests' test and
the
'substituted
judgment'
test
for
determining whether the pregnancy should
be permitted to be continued or not. The
'best interest' test requires the court to
ascertain the course of action which would
serve the best interest of the person in
question. The 'substituted judgment' test
requires the court to step into the shoes of a
person who is considered to be mentally
incapable and attempt to make the decision
which the said person would have made, if
she was competent to do so.

10. In the instant case, the petitioner
being a minor, the 'substituted judgment'
test would apply. As noted above, the
petitioner who is only sixteen years of age,
does not want to continue with her
pregnancy.
The
medical
opinion
is
unequivocally in favour of fetus being
aborted to prevent risk to the life of the
petitioner. First Explanation to sub-section
2 of Section 3 of the Act engrafts a
presumption that where a pregnancy has
resulted on account of rape, the anguish
caused by such pregnancy shall be
presumed to constitute a grave injury to the
mental health of the pregnant woman. The
second petitioner who is father and natural
guardian of the first petitioner, has
consented to the termination of pregnancy,
having joined the instant petition as a copetitioner.

11. In totality of the facts and
circumstances of the instant case, we are of
considered opinion that petitioner no. 1
should be permitted to terminate the
unwanted
pregnancy.
We
accordingly
allow and permit the termination of the
pregnancy.

12. The pregnancy shall be terminated
by a registered medical practitioner at a
hospital established or maintained by
Government or a place for the time being
approved for the purpose of this Act by
Government,
as
contemplated
under
Section 4 of the Act. The hospital where
the pregnancy is terminated shall maintain
confidentiality, as required under Section
5-A of the Act.

13. The permission given hereinabove
for termination of pregnancy shall last only
until the fetus attains age of 24 weeks and
consequently, the petitioner is directed to
present
herself
for
termination
of
pregnancy at recognized medical centre, as
stipulated under Section 4 of the Act, well
before expiry of 24 weeks, failing which
the instant order shall automatically lapse.

14. The Registrar General is directed
to preserve the report of Medical Board in
sealed cover for future reference, if needed.

15. The petition stands disposed of
accordingly.
----------
(2021)09ILR A1260
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 26.03.2021

BEFORE

THE HON'BLE SUBHASH CHAND, J.

Criminal Appeal No. 2018 of 2019

Amar Singh ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Amit Kumar Srivastava, Sri Anil Pathak,
Sri Raj Kumar Singh, Sri Ramesh Kumar
Mishra, Sri Saghir Ahmad (Senior Adv.)
9 All Amar Singh Vs. State of U.P.
1261
Counsel for the Opposite Party:
A.G.A., Sri Dinesh Kumar Yadav, Sri
Mahesh Prasad Yadav

A. Criminal Law - Murder - Right of
private
defence
-
Code
of
Criminal
Procedure, 1973 - Sections 374(2), 313 &
437-A - Indian Penal Code,1860 -Sections
304 & 103 - Indian Evidence Act, 1872 -
Section 105- Arms Act,1959 - Section
25/27 - Accused need not raise specific
plea of self defence, court can consider its
availability even in absence of the plea
raised by the accused. (Para 26)

Indian Evidence Act, 1872: Section 105 -
S.105 of Evidence Act does not prevent
the Court from giving benefit of doubt
altogether to an accused under general
exceptions. It makes possible both kinds of
acquittal (i) by proving his plea fully and
another (ii) by raising genuine doubt in the
case. The doubt which the law contemplates is
certainly not that of a weak or unduly
vacillating, capricious, indolent, drowsy, or
confused mind. It must be the doubt of the
prudent man who is assumed to possess the
capacity to "separate the chaff from the grain".
(Para 28, 29, 30, 32)

In the present case certainly on behalf of
appellant/convict this plea of self defence in
general exceptions of IPC is neither raised in the
statement u/s 313 of Cr.P.C. of the accused, nor
the
same
has
been
elucidated
to
the
prosecution witnesses during cross-examination
on behalf of accused by the defence counsel.
Even no evidence has been adduced on behalf
of accused to prove the plea of self defence of
general exceptions of IPC. (Para 31)

Hon'ble Apex Court has held that if from the
evidence on record as a whole a reasonable
consequential doubt is created in the mind of
the court whether the accused is really guilty of
the offence; the plea of self defence in general
exceptions of IPC can be considered. (Para 32)

B. Indian Penal Code,1860 - Section 103 -
provides when the right of private defence
of property extends to causing death, if the
theft, mischief, or house-trespass, under such
circumstances
as
may
reasonably
cause
apprehension that death or grievous hurt will be
the consequence, if such right of private
defence is not exercised. (Para 33)

The trial court held guilty to the appellant for
culpable homicide not amounting to murder u/s
304
of
IPC
with
the
finding
that
the
appellant/convict exceeded the right of private
defence. (Para 24)

In the present case, from the prosecution
evidence on record, it is found that the
deceased Indersen had intruded in the house of
accused at 1.30 O'clock in the intervening night
of 14/15.07.2007 (Amavasaya), the entry at the
wee hours is certainly criminal housetrespass,
which
caused
reasonable
apprehension in the mind of inmates of the
house that some miscreant had intruded in their
house. Consequently the inmates of the house
of accused raised alarm. P.W. 1-Kallu Ram
(informant of this case) and P.W. 2-Surya Pal
also attracted immediately at the place of
occurrence. The so called miscreant had hidden
himself in the Attari of the house and despite
raising alarm even in presence of prosecution
witnesses P.W. 1 and P.W. 2, he did not appear
to disclose his identity. The appellant Amar
Singh who was armed with licensee gun of his
father, also raised alarm, when so called
miscreant did not come out from the Attari, he
under the misconception opened fire to avoid
any mishap. (Para 32, 34)

Certainly the deceased Indersen was not armed
with any weapon, he had not made any
threatening and had not made any assault but
by
hiding
himself
in
the
Attari
raised
reasonable apprehension in the mind of
the appellant which seems to be the
reasonable consequential apprehension of
a prudent man, that his presence inside
the house may cause any mishap to any
inmate of the house or property as well. A
prudent man in the similar circumstances would
take such a decision more so; if he had any
licensee gun in his house to protect his person
and property as well. (Para 34, 35)

Criminal appeal allowed. (E-4)

Precedent followed:
1262 INDIAN LAW REPORTS ALLAHABAD SERIES
1. Rishikesh Singh Vs. St.of U.P., AIR 1970 Alld.
51 (FB) (Para 10)

2. Sampath Kumar Vs. Inspector of Police, 2012
(77) ACC 251 (SC) (Para 18)

3. Darshan Singh V.s St. of Punjab & anr., 2010
(2) SCC 333 (Para 25)

4. Satya Narayan Yadav Vs. Gajanand, AIR 2008
SC 2384 (Para 26)

5. Laxman Singh Vs. Poonam Singh & ors., 2004
(10) SCC 94 (Para 28)

6. Rishikesh Singh Vs. State, AIR 1970 Alld 51
(Para 29)

7. Parbhoo Vs. Emperor, AIR 1941 All 402 (FB)
(Para 29)

Present appeal assails the judgment and
orders dated 01.03.2019, passed by 3rd
Additional Sessions Judge, Chitrakoot.

(Delivered by Hon'ble Subhash Chand, J.)

The instant appeal on behalf of
accused-appellants under Section 374(2)
Cr.P.C. is preferred against the judgment
and orders dated 01.03.2019 passed by 3rd
Additional Sessions Judge, Chitrakoot, in
Sessions Trial No. 2 of 2008, State vs.
Amar Singh and another & Sessions Trial
No. 3 of 2008 (State Vs. Amar Singh),
whereby
the
appellants
have
been
convicted and sentenced as follows:

Sessions Trial No. 2 of 2008
Appellant -Amar Singh

304 IPC
:
Ten years rigorous imprisonment
with fine of Rs.20,000/- and in
default of payment of fine six
months
additional
simple
imprisonment.

Sessions Trial No. 3 of 2008
Appellant -Amar Singh

25/27
Arms Act
:
Two
years
rigorous
imprisonment
with
fine
of
Rs.5,000/- and in default of
payment of fine two months'
additional simple imprisonment.

1. In the present appeal facts of the
prosecution case may be summarized as
under :-

Brief facts giving rise to the
present Criminal Appeal are that the
informant Kallu Ram son of Chunkoo,
resident of village and post Chillimal, P.S.
Rajapur, District Chitrakoot moved written
information on 15.07.2007 with these
allegations that in the intervening night at
1.30 O'clock, he heard the noise from the
house of Gaya Prasad son of Jhurai that
some miscreant has intruded in his house.
He and the people of the village attracted to
the house of Gaya Prasad and it was told
that the miscreant had entered in the Attari
having crossed the courtyard of the house.
Despite alarming, the miscreant did not
come out, Amar Singh (appellant herein)
the son of Gaya Prasad opened fire with the
licensee gun of his father on the miscreant
presuming him to be miscreant and that
person died on the spot. Thereafter he was
brought down from the Attari and it was
found that the person was Indersen son of
Ram Milan Yadav of their family.
Therefore, the murder of cousin brother
was committed under misconception that
he was miscreant. His dead body is lying
on the spot. This written information was
given with the police station Rajapur, on
which case crime no.80 of 2007, under
Section 304 IPC and case crime no.81 of
2007, under Section 25/27 of Arms Act,
were registered against the appellant-Amar
Singh; while case crime no.82 of 2007,
9 All Amar Singh Vs. State of U.P.
1263
under Section 30 of the Arms Act, was
registered
against
Gaya
Prasad.
The
Investigating
Officer
after
having
concluded the investigation filed chargesheet against acused Amar Singh in case
crime no.80 of 2007, under Section 304
IPC, case crime no. 81 of 2007, under
Section 25/27 of Arms Act and in case
crime no.82 of 2007, under Section 30 of
Arms
Act
filed
charge-sheet
against
accused
Gaya
Prasad
Yadav.
The
magistrate concerned took cognizance on
the charge-sheet of case crime nos.80 of
2007 & 81 of 2007 against Amar Singh and
the case being triable by the court of
Sessions committed the file to the Court of
Sessions for trial.

2. The trial court registered the
Sessions Trial No.2 of 2008 (State Vs.
Amar Singh) arising out of case crime no.
80 of 2007, under Section 304 IPC, P.S.
Rajapur, District Chitrakoot and S.T. No. 3
of 2008 (State Vs. State), arising out of
case crime no. 81 of 2007, under Section
25/27 of Arms Act, P.S. Rajapur, District
Chitrakoot. The trial court framed the
charge against the accused-Amar Singh
under Section 304 IPC and 25/27 of Arms
Act in the respective Sessions Trial Nos. 2
of 2008 and 3 of 2008. The charge was
read over and explained to the accused
Amar Singh, who denied the charge and
claimed to be tried.

3. On behalf of prosecution to prove
the charge against the accused Amar Singh
in documentary evidence filed written
information Ext. Ka-1, application dated
25.07.2007 Ext. K-2, inquest report Ext.
Ka-6, recovery memo of the blood stained
and plain clay Ext. Ka-7, recovery memo of
one bullet and two spent cartridges 12 bore
Ext. Ka-8, Postmortem report of the
deceased Ext. Ka-9, police form no.33 Ext.
Ka-10, letter to R.I. Ext. Ka-11, letter to
CMO Ext. Ka-12, police form no.13 Ext.
Ka-13, photocopy of blood stained and
plain clay Ext. Ka-14, photocopy of taking
in possession of one bullet and two spent
cartridges 12 bore Ext. Ka-15, site plan of
the occurrence Ext. Ka-16, recovery memo
in regard to the DBBL Gun no.8722 along
with four live cartridges 12 bore and arrest
memo of the accused Ext. Ka-19, chargesheet against accused-appellant in case
crime no.80 of 2007, under Section 304
IPC Ext. Ka-17, charge-sheet against
accused Amar Singh in case crime no.81 of
2007, under Section 25/27 Arms Act Ext.
Ka-20, check FIR Ext. Ka-21.

4. On behalf of prosecution in oral
evidence examined P.W.1-Kallu Ram,
P.W.2-Surya
Pal,
P.W.3-Bhola
Nath,
P.W.4-Dr. A.K. Mohan, and P.W.5-Sub
Inspector Jagjeevan Ram.

5. The statement of accused under
Section 313 of the Code of Criminal
Procedure was recorded, in which he
denied the incriminating circumstances
against him and stated that he has been
falsely implicated in this case and he is
innocent.

6. On behalf of accused in defence
evidence adduced D.W.1-Nankoo.

7. The trial court after hearing the
counsel for rival parties, passed the
judgment
and
order
dated
1.3.2019
convicting the accused-appellant under
Sections 304 IPC and 25/27 of Arms Act
and sentenced him as above.

8. Aggrieved from the impugned
judgment the instant criminal appeal has
been preferred on behalf of the appellant on
the ground that impugned judgment of
conviction and sentence passed by the court
1264 INDIAN LAW REPORTS ALLAHABAD SERIES
below is perverse and illegal. The trial
court has not appreciated the evidence
available on record in proper perspective.
The contents of the FIR itself transpires
that the appellant opened fire under the
impression that the miscreant had entered
in his house in late hours of night. There
are major contradictions and improvement
in
the
statement
of
witnesses.
No
independent witness of the occurrence was
examined by the prosecution. Defence
version has not been considered by the trial
court while convicting the appellant. The
impugned judgment of conviction is based
on surmises and conjectures.

9. I have heard Sri Saghir Ahmad,
Senior Advocate, assisted by Sri Anil
Pathak, learned counsel for the appellant,
learned AGA for the State-respondent and
perused the lower court record.

10. Learned counsel for the appellant
has submitted that from the evidence on
record it is established that there is no mens
rea to commit the alleged offence. The
appellant had exercised the right of private
defence of person and property and the trial
court did not consider the reasonable doubt
for acquittal of the appellant in view of
Section 105 of the Indian Evidence Act,
1872. The informant for the first time took
the new plea in the application dated
25.07.2007 Ext. Ka-2 in regard to the illicit
relation of deceased with the wife of
accused Amar Singh and source of the
same is alleged by P.W.1-Kallu Ram to be
known from the ladies of his family and the
fact of source of light at the place of
occurrence also for the first time was raised
in the application dated 25.07.2007. This
application was not handed over by the
informant P.W.1- Kallu Ram to the
Investigating Officer during investigation
and the same was not made part of the case
diary. Even in the statement under Section
161 of Cr.P.C. Kallu Ram did not disclose
this new fact to the Investigating Officer.
This improvement was raised for the first
time on behalf of prosecution at the stage
of trial while the prosecution case is not
based on the same. As such, the same
cannot be read in evidence. The appellant
did not exceed the right of private defence
consequently no offence under Section 304
IPC is made out against the appellant. It is
further submitted by the learned counsel for
appellant; if the plea of self defence under
general exceptions of Indian Penal Code is
not proved on behalf of appellant, the trial
court was bound to consider the same in
view of Section 105 of the Indian Evidence
Act, 1872. Whether the appellant was
entitled to benefit of doubt in view of
evidence adduced on behalf of prosecution
itself. In support of this contention learned
counsel for the appellant relied upon case
law Rishikesh Singh Vs. State of U.P.,
AIR 1970 Alld. 51 (FB).

11. Learned AGA opposed the
contentions made by learned counsel for
the appellant and contended that the
prosecution has proved its case beyond
reasonable doubt. There is no infirmity in
the judgment of conviction and sentence
passed by the court below. The plea of self
defence under general exceptions of Indian
Penal Code was neither raised on behalf of
the appellant in the statement under Section
313 of Cr.P.C. nor the same was elucidated
on behalf of accused to the prosecution
witnesses during cross-examination. Not
only this in defence evidence on behalf of
accused D.W.1-Nankoo was examined.
This witness also did not adduce any
evidence in regard to this plea of self
defence under general exceptions of Indian
Penal Code rather the D.W.1 was examined
to prove the plea of alibi in regard to the
9 All Amar Singh Vs. State of U.P.
1265
accused Gaya Prasad, who is alleged to be
at the house of D.W.1-Nankoo, the brotherin-law of accused Gaya Prasad and the
licensee gun was also with him, therefore,
the appellant is not entitled to get benefit of
doubt in view of Section 105 of Indian
Evidence Act, 1872.

12. For disposal of this criminal
appeal the only question before the Court
is; whether the appellant is entitled to
take the benefit of general exceptions of
self defence of person and property in
view of Section 105 of Indian Evidence
Act, 1982 ?

13. Here the provisions of Sections
relating the self defence under Indian Penal
Code and also under the provisions of
Section 105 of Indian Evidence Act are
relevant, which are reproduced as under:

96. Things done in private
defence.--Nothing is an offence which is
done in the exercise of the right of private
defence.

97. Right of private defence of
the body and of property.--Every person
has a right, subject to the restrictions
contained in section 99, to defend--

(First) -- His own body, and the
body of any other person, against any
offence affecting the human body;

(Secondly)
--The
property,
whether movable or immovable, of himself
or of any other person, against any act
which is an offence falling under the
definition of theft, robbery, mischief or
criminal trespass, or which is an attempt to
commit theft, robbery, mischief or criminal
trespass.

100. When the right of private
defence of the body extends to causing
death.--The right of private defence of the
body
extends,
under
the
restrictions
mentioned in the last preceding section, to
the voluntary causing of death or of any
other harm to the assailant, if the offence
which occasions the exercise of the right be
of any of the descriptions hereinafter
enumerated, namely:--

(First) -- Such an assault as may
reasonably cause the apprehension that
death will otherwise be the consequence of
such assault;

(Secondly) --Such an assault as
may reasonably cause the apprehension that
grievous hurt will otherwise be the
consequence of such assault;

(Thirdly) -- An assault with the
intention of committing rape;

(Fourthly) --An assault with the
intention of gratifying unnatural lust;

(Fifthly) -- An assault with the
intention of kidnapping or abducting;

(Sixthly) -- An assault with the
intention of wrongfully confining a person,
under circumstances which may reasonably
cause him to apprehend that he will be
unable to have recourse to the public
authorities for his release.

102.
Commencement
and
continuance of the right of private
defence of the body.--The right of private
defence of the body commences as soon as
a reasonable apprehension of danger to the
body arises from an attempt or threat to
commit the offence though the offence may
not have been committed; and it continues
as long as such apprehension of danger to
the body continues.

103. When the right of private
defence of property extends to causing
death.--The right of private defence of
property extends, under the restrictions
mentioned in section 99, to the voluntary
causing of death or of any other harm to the
wrong-doer, if the offence, the committing
of which, or the attempting to commit
which, occasions the exercise of the right,
1266 INDIAN LAW REPORTS ALLAHABAD SERIES
be an offence of any of the descriptions
hereinafter enumerated, namely:-

(First) - Robbery;

(Secondly) --House-breaking by
night;

(Thirdly) -- Mischief by fire
committed on any building, tent or vessel,
which building, tent or vessel is used as a
human dwelling, or as a place for the
custody of property;

(Fourthly) --Theft, mischief, or
house-trespass, under such circumstances
as may reasonably cause apprehension that
death or grievous hurt will be the
consequence, if such right of private
defence is not exercised.

105.
Commencement
and
continuance of the right of private
defence of property.--The right of private
defence of property commences when a
reasonable apprehension of danger to the
property commences. The right of private
defence of property against theft continues
till the offender has effected his retreat with
the property or either the assistance of the
public authorities is obtained, or the
property has been recovered. The right of
private defence of property against robbery
continues as long as the offender causes or
attempts to cause to any person death or
hurt or wrongful restraint or as long as the
fear of instant death or of instant hurt or of
instant personal resstraint continues. The
right of private defence of property against
criminal trespass or mischief continues as
long as the offender continues in the
commission
of
criminal
trespass
or
mischief. The right of private defence of
property against house-breaking by night
continues as long as the house-trespass
which has been begun by such housebreaking continues.

Section 105 of Indian Evidence
Act reads as under:

105. Burden of proving that
case of accused comes within exceptions.-
-When a person is accused of any offence,
the burden of proving the existence of
circumstances bringing the case within any
of the General Exceptions in the Indian
Penal Code, (45 of 1860), or within any
special exception or proviso contained in
any other part of the same Code, or in any
law defining the offence, is upon him, and
the Court shall presume the absence of such
circumstances.

14. On behalf of prosecution in ocular
evidence, examined P.W.1-Kallu Ram,
P.W.2-Surya Pal, P.W.3-Bhola Nath, as a
witness of fact.

P.W.1-Kallu
Ram
in
his
examination-in-chief stated that Jhurai is
cousin brother and Amar Singh (Accused)
is the real grandson of Jhurai. The deceased
Indersen is the real grandson of him. On the
date of occurrence after hearing the noise
when he reached to the house of accusedAmar Singh, he saw Amar Singh was
standing in the courtyard armed with
licensee gun of his father. His younger
brother was also there. Amar Singh was
also bearing torch. Amar Singh told him
that a miscreant had hidden himself in the
Attari. Amar Singh opened two shots after
having seen the miscreant in the light of
torch and when deceased was brought
down on the ground floor, who was
grandson of Indersen. He had lodged the
FIR on 15.07.2007 having relied what the
Amar Singh told him. Written information
is in his hand writing and signature, he
verified he same Ext. Ka-1. He had also
moved
the
application
to
the
Superintendent of Police through registered
post Ext. Ka-2 on 25.07.2007.

In
cross-examination
P.W.1Kallu Ram stated that on the date of
9 All Amar Singh Vs. State of U.P.
1267
occurrence
it
was
dark
night
of
Amavashya. He has no enmity with
accused person. Between the house of
accused and the house of him, there are 6 to
7 houses. He had come to know from the
ladies of his house that deceased Indersen
had illicit relations with the wife of accused
Amar Singh and he cannot tell the name of
ladies, who told him in this regard. He did
not get the acknowledgment of the
application sent to Superintendent of Police
Ext. Ka-2 dated 25.07.2007. He did not
tell in regard to illicit relations of
deceased with the wife of Amar Singh to
the Investigating Officer. In regard to
the fact that Amar Singh was bearing
torch he had mentioned in the second
application but nothing was mentioned
in the first application. He did not tell to
Darogaji that Amar Singh was bearing
torch in his hand at the time of
occurrence. He was in the courtyard of
house of Amar Singh when he heard the
sound opening fire. It is wrong to say that
on the date of occurrence Amar Singh and
his father Gaya Prasad both were not at
their house. It is further wrong to say that
in absence of accused Amar Singh and his
father Gaya Prasad, deceased had intruded
in the house in the night and the ladies of
he house of Amar Singh made noise of the
same and some neighbour had opened fire
causing death of Indersen.

15.

P.W.2-Surya
Pal
also
corroborates the prosecution story and
deposed that he had seen Amar Singh
opening fire from his own eyes. He came to
know in regard to illicit relations of
deceased with the wife of Amar Singh,
with the wife of Ram Milan. He has no
personal knowledge of the same. P.W.1Kallu Ram had lodged the FIR about the
occurrence told to him by Amar Singh and
his father. He did not tell to the
Investigating Officer in regard to the
illicit relation of deceased with the wife
of accused Amar Singh and also in
regard to torch that was borne by the
accused at the time of occurrence.

16. P.W.3-Bhola Nath proved the
recovery in regard to blood stained and
plain clay Ext. Ka-7 and also the recovery
memo of two cartridges and one bullet Ext.
Ka-8 and also two spent cartridge material
Ext.1 and 2 and one bullet Ext.3. P.W.3 in
his cross-examination by the court deposed
that he had no personal knowledge in
regard to the illicit relations of the
deceased with the wife of accused Amar
Singh. He is deposing in this regard only
on the basis of rumour spread in the
village. The occurrence is of 1.30 O'clock
in the night.

17. From the statement of P.W.1Kallu Ram and P.W.2-Surya Pal it is
established that both the witnesses for the
first time told in regard to the illicit
relations of deceased with the wife of
accused Amar Singh and source of
knowledge of the same is hearsay. Both
the
witnesses
admit
that
during
investigation they did not depose in this
regard to the Investigating Officer and
for the first time they are giving
statement in this regard before the trial
court. Likewise both the witnesses also
admit that they did not depose to the
Investigating Officer that Amar Singh
was bearing torch in his hand at the time
of opening fire at the deceased.

18. As such improvement made by
the prosecution witnesses during trial
court in regard to the illicit relations of
deceased with the wife of accused Amar
Singh and also that Amar Singh was
bearing torch in his hand at the time of
1268 INDIAN LAW REPORTS ALLAHABAD SERIES
opening fire and the same was never told
by these witnesses in their statement
recorded under Section 161 Cr.P.C. to
the Investigating Officer; to that extent
the testimony of this witnesses cannot be
relied upon.

The Hon'ble Apex Court in
Sampath Kumar Vs. Inspector of Police,
2012(77) ACC 251 (SC) held that in
criminal trial testimony of a witness in the
court that when he woke up, he saw the
appellant standing near the head of the
deceased - no such statement was given by
the witness to the police under Section 161
of Cr.P.C. is wholly unsafe to base the
conviction on such testimony in absence of
independent witness.

19. From the statement of witness of
fact, it is established that the accused Amar
Singh opened fire with the licensee gun of
his
father
to
the
deceased
under
misconception that the deceased was the
miscreant, who had intruded in his house at
1.30 O'clock in dark hours of night and
hidden himself in the Attari of the house.

20. This ocular evidence is also
corroborated with the medical evidence.
P.W.4 Dr. A.K. Mohan deposed that on
15.07.2007 he conducted the postmortem
of the deceased Indersen and during
examination, there were following ante
mortem injuries.

1. Gunshot entry wound present
inferior bordering of right Axilla at lateral
aspect size 3 cm in diameter. Gunshot
tattooing mark present inferior size 15 cm x
6 cm. Margin of wound inverted. Direction
downward & towards left side of chest at 67 interverted space was fracture of 3rd and
4th ribs of lt. Side. Margin burned and
bloodish.

2. Gunshot exit wound present on
left side of chest at lateral aspect at 6-7
interverted space. Margin excluded. Soft
tissue extruded. Size of wound is 2 1⁄2 cm x
2 cm.

This witness opined that the
cause
of
death
was
shock
and
haemorrhage as a result of gunshot
injuries. He proved the postmortem
report of the deceased as Ext. Ka-9.

21. P.W.5 Sub Inspector Jagjeevan
Ram deposed that he took over the
investigation
of
the
case
and
during
investigation he recorded the statement of
witnesses of fact and also the witness of
panchayatnama. He prepared the site plan of the
occurrence. He collected the blood stained and
plain clay of the place of occurrence. He also
took in his possession the licensee DBBL Gun
used in the offence and the recovery memo of
the same was also prepared by him. He also
prepared the site plan, recovery memo of bullet
and spent cartridges recovered from the place of
occurrence and the witness told him that
accused Amar Singh opened fire resulting death
of deceased Indersen under misconception that
he was miscreant.

22. The Forensic Science Laboratory (in
short FSL) report is also on record as paper
no.123Ka/6. This FSL report is admissible in
evidence under Section 293 of Cr.P.C. As per
FSL report, the disputed cartridge was found to
be opened with the right barrel of the DBBL
Gun No. 8722.

23. Therefore, from the ocular
evidence as well as medical and the FSL
report this fact is proved that gunshot injury
was caused by the licensed DBBL Gun of
Gaya Prasad by his son Amar Singh.

24. The trial court held guilty to the
appellant
for
culpable
homicide
not
9 All Amar Singh Vs. State of U.P.
1269
amounting to murder under Section 304 of
IPC
with
the
finding
that
the
appellant/convict exceeded the right of
private defence.

25. The Hon'ble Apex Court in
Darshan Singh Vs. State of Punjab and
another, 2010 (2) SCC 333 held in para-15
that the following principles emerge on
scrutiny in regard to private defence of
person and property :

"(i) Self-preservation is the basic
human instinct and is duly recognized by
the criminal jurisprudence of all civilized
countries. All free, democratic and civilized
countries recognize the right of private
defence within certain reasonable limits.

(ii) The right of private defence is
available only to one who is suddenly
confronted with the necessity of averting an
impending danger and not of self-creation.

(iii)
A
mere
reasonable
apprehension is enough to put the right of
self-defence into operation. In other words,
it is not necessary that there should be an
actual commission of the offence in order
to give rise to the right of private defence is
contemplated and it is likely to be
committed if the right of private defence is
not exercised.

(iv) The right of private defence
commences as soon as a reasonable
apprehension arises and it is co-terminus
with the duration of such apprehension.

(v) It is unrealistic to expect a
person under assault to modulate his defence
step by step with any arithmetical exactitude.

(vi) In private defence the force
used by the accused ought not to be wholly
disproportionate or much greater than
necessary for protection of the person or
property.

(vii) It is well settled that even if
the accused does not plead self-defence, it
is open to consider such a plea if the same
arises from the material on record.

(viii) The accused need not prove
the existence of the right of private defence
beyond reasonable doubt.

(ix) The Penal Code confers the
right of private defence only when that
unlawful or wrongful act is an offence.

(x) A person who is in imminent
and reasonable danger of losing his life or
limb may in exercise of self-defence inflict
any harm even extending to death on his
assailant either when the assault is
attempted or directly threatened."

26. The Hon'ble Apex Court held in
Satya Narayan Yadav Vs. Gajanand, AIR
2008 SC 2384, right of private defenceaccused need not raise specific plea, court
can consider its availability even in absence
of the plea raised by the accused.

27. Here it would be relevant to
produce the following case law on Section
105 of the Evidence Act while dealing
with the contentions made by learned
counsel for rival parties.

28. The Hon'ble Apex Court in
Laxman Singh Vs. Poonam Singh and
others, 2004(10) SCC 94 in para-6 held as
under:

"The burden of proof is on the
accused, who sets off the plea of selfdefence, 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
1270 INDIAN LAW REPORTS ALLAHABAD SERIES
defence is not 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."

29. The Hon'ble Full Bench of Nine
Judges of Allahabad High Court in
Rishikesh Singh Vs. State, AIR 1970 Alld
51, the dictum of the majority of learned
Judges of this Court in Parbhoo v.
Emperor, AIR 1941 All 402 (FB) is still
good law. But, it may be elucidated that in
a case in which any general Exception in
the Indian Penal Code is pleaded by an
accused and evidence is adduced to support
such a plea, but such evidence fails to
satisfy the Court affirmatively that the
accused has fully established his plea of the
claimed Exception, he will still be entitled
to an acquittal, if, upon a consideration of
the evidence as a whole (including the
evidence given in support of the plea of the
said general Exception), a reasonable
consequential doubt is created in the mind
of the Court as to whether the accused is
really guilty of the offence with which he is
charged.

30. The Hon'ble Full Bench of
Allahabad High Court held in Parbhoo Vs.
Emperor, AIR 1941 All 402 (FB), Section
105 of Evidence Act does not prevent the
Court from giving benefit of doubt
altogether to an accused under general
exceptions. It makes possible both kinds of
acquittal (i) by proving his plea fully and
another by raising genuine doubt in the
case.
The
doubt
which
the
law
contemplates is certainly not that of a weak
or unduly vacillating, capricious, indolent,
drowsy,, or confused mind. It must be the
doubt of the prudent man who is assumed
to possess the capacity to "separate the
chaff from the grain.

31. In the present case certainly on
behalf of appellant/convict this plea of self
defence in general exceptions of IPC is
neither raised in the statement under Section
313 of Cr.P.C. of the accused, nor the same
has been elucidated to the prosecution
witnesses during cross-examination on behalf
of accused by the defence counsel. Even no
evidence has been adduced on behalf of
accused to prove the plea of self defence of
general exceptions of IPC.

32. In view of case law Laxman Singh
(Supra) and also the full Bench judgment of
this Court in Rishi Kesh Singh (Supra), if
from the evidence on record as a whole a
reasonable consequential doubt is created in
the mind of the court whether the accused is
really guilty of the offence; the plea of self
defence in general exceptions of IPC can be
considered. Certainly this reasonable doubt
must be genuine and a doubt of prudent
man.

From the prosecution evidence on
record, it is found that the deceased
Indersen had intruded in the house of
accused at 1.30 O'clock in the intervening
night of 14/15.07.2007 (Amavashya), the
entry at the wee hours is certainly criminal
house-trespass.

33. Section 103 of IPC, 1860
provides when the right of private defence
9 All Amar Singh Vs. State of U.P.
1271
of property extends to causing death if the
theft, mischief, or house-trespass, under
such circumstances as may reasonably
cause apprehension that death or grievous
hurt will be the consequence, if such right
of private defence is not exercised.

34. In the present case from the
evidence on record, it is proved that the
deceased Indersen had intruded in the
house of accused at 1.30 O'clock in wee
hours of Amavashya night which caused
reasonable apprehension in the mind of
inmates of the house that some miscreant
had intruded in their house. Consequently
the inmates of the house of accused raised
alarm. P.W.1-Kallu Ram (informant of this
case) and P.W.2-Surya Pal also attracted
immediately at the place of occurrence. The
so called miscreant had hidden himself in
the Attari of the house and despite raising
alarm even in presence of prosecution
witnesses P.W.1 and P.W.2, he did not
appear to disclose his identity. The
appellant Amar Singh who was armed with
licensee gun of his father, also raised alarm,
when so called miscreant did not come out
from the Attari, he under the misconception
opened fire to avoid any mishappening.

This reasonable apprehension
in the mind of the appellant seems to be
the
reasonable
consequential
apprehension of a prudent man, who in
the similar circumstances would take
such a decision more so; if he had any
licensee gun in his house to protect his
person and property as well.

35. Certainly the deceased Indersen
was not armed with any weapon, he had
not made any threatening and had not
made any assault but by hiding himself
in the Attari would raise apprehension in
the mind of a prudent man that his
presence inside the house may cause any
mishappening to any inmate of the house
or property as well.

36. In view of the evidence on record
a genuine doubt is created in the mind of
the Court to hold whether the appellant is
guilty of the offence of culpable homicide
not amounting to murder.

37. On behalf of prosecution during
trial for the first time this plea was raised
by the prosecution witness that accused
was bearing torch in his hand and in the
light of torch he had verified the identity of
the deceased to be Indersen and he opened
fire with the licensee gun on account of
illicit relations of deceased with the wife of
accused Amar Singh. This plea was never
raised by P.W.1-Kallu Ram, who is the
informant of the case and P.W.2-Surya Pal,
during investigation. But for the first time
the
informant
stated
during
crossexamination in trial that he had given an
application
to
that
effect
to
the
Superintendent of Police concerned; but the
same was never made part of the case
diary. Even there is no entry in this regard
made by the Investigating Officer in the
case diary. Not only this even none of the
witnesses, who were interrogated by the
Investigating Officer under Section 161 of
Cr.P.C.