# Malti Devi Singh & Ors v. State Of U.P

- **Citation:** (2016) 4 ILRA 646
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-04-01
- **Bench:** Arvind Kumar Tripathi, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/malti-devi-singh-ors-v-state-of-u-p-43669
- **Pages:** 19

## Headnote

Indian Penal Code, 1860 - Ss. 299, 300, 302, 304, 34 - Murder - Common intention - Land
dispute-Deceased Ramesh Kumar Singh objected to the accused unloading soil on land - same resulted in
exchange of abuses and threats - One of Accused exhorted others - one of the deceased shot fired from
close range resulting in instantaneous death -Unlawful assembly - Firearm assault - Exhortation to kill -
Whether accidental firing or exercise of right of private defence.

Indian Penal Code, 1860 - Ss. 96-106 - Right of Private Defence - Plea of self-defence taken by the
accused - Whether available when accused himself were aggressor - Accidental firing plea - Burden of
proof under S. 105 Evidence Act upon the accused- plea of private defence was wholly untenable -
Evidence proved the accused were aggressors who arrived armed - defence that the deceased attempted to
snatch the gun and the firing occurred accidentally was found false - no injury or mark of struggle on the
accused- Accused failed to establish circumstances generating reasonable apprehension of death or grievous
hurt to be taken in self-defence- Held further, even if plea of private defence is not expressly taken, Court
may consider it if it arises from material; however, here the material discredited the defence version.

Indian Penal Code, 1860 - S. 34 - Common intention - Participation by exhortation - Liability of coaccused even if they did not fire- Held, exhortation to kill, arrival armed with weapons, and collective conduct
established common intention-Though only one accused fired the fatal shot-other accused shared common
intention to commit murder-presence with deadly weapons and active participation in threatening the
deceased made S. 34 IPC applicable

Indian Evidence Act, 1872 - S. 3 - Appreciation of evidence - Eyewitness account - presence was
natural - cross-examination could not shake credibility -Minor inconsistencies - Not fatal.

No role given to two accused-only presence shown on the site- can not be said prior meeting of mind or
any premeditation to commit murder-two accused conviction and sentence set aside.

Held - Appeal Partly Allowed.

List of Cases cited:

## Text

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646 INDIAN LAW REPORTS ALLAHABAD SERIES
while he was accompanying the police. The recovery memo of the girl is Ext. Ka-9, which bears
the thumb impression of the informant. According to this, she was recovered from a hut near the
petrol pump at Shivli. The victim has stated that she was recovered by the police, whereas in
crossexamination, she has stated that she was coming back to her village, when she was recovered
by the police. Thus, practically in every breath, the informant, father of the victim and the victim
have changing their statements. Thus, neither the evidence of the informant nor the evidence of the
victim is reliable and trustworthy. The informant has stated that the date of birth of the victim is
08.03.1993, whereas the occurrence took place on 26.05.2009. Thus, according to the statement of
the father of the victim, she was above 16 years at the time of occurrence. Dr. Manisha Tiwari,
PW-3 has stated the age of the victim to be 16 years, but since the prosecution case is unreliable,
improbable and untrustworthy, the matter of age looses its importance.

32. Thus, what has been stated and discussed above, I conclude that the prosecution case is
bundle of false allegations and improbable facts, due to which the learned trial court mislead itself
and has incorrectly convicted the accused, which conviction cannot be sustained in the eyes of law,
as such the accused is entitled to be acquitted and the appeal is liable to be allowed.

33. Hence, the impugned judgement and order of conviction and sentence dated 31.01.2013
passed by the learned Additional Sessions Judge, Court No. 8, Kanpur Dehat in Sessions Trial No.
419 of 2009 (State of U.P. Vs Pradeep Kumar and another) arising out of Case Crime No. 191 of
2009, under sections 363, 366 and 376 IPC, police station Shivkali, district Kanpur Dehat, is
hereby set-aside.

34. Accordingly, the appeal is allowed.

35. The appellant- Pradeep Kumar is in jail. He shall be released forthwith unless wanted in
any other case. The appellant is directed to comply with the provision of Section 437-A Cr.P.C.
forthwith.

36. Let a copy of this order be sent to the Trial court concerned.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.04.2016

BEFORE

THE HON'BLE ARVIND KUMAR TRIPATHI, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No.- 1010 Of 2004

Malti Devi Singh & Ors. ...Appellants
Versus
State Of U.P. ...Respondent
4 All. Malti Devi Singh & Ors. Vs State Of U.P.

647
Counsel for the Appellants:
G.P. Dikshit, Abhishek Srivastava, Anwar Ali, Chandra Kesh Mishra, D.S. Misra, Kamlesh Kumar Nishad,
L.N. Shukla, P.C.Srivastava

Counsel for the Respondent:
Govt. Advocate, Rakesh Bhatt

Indian Penal Code, 1860 - Ss. 299, 300, 302, 304, 34 - Murder - Common intention - Land
dispute-Deceased Ramesh Kumar Singh objected to the accused unloading soil on land - same resulted in
exchange of abuses and threats - One of Accused exhorted others - one of the deceased shot fired from
close range resulting in instantaneous death -Unlawful assembly - Firearm assault - Exhortation to kill -
Whether accidental firing or exercise of right of private defence.

Indian Penal Code, 1860 - Ss. 96-106 - Right of Private Defence - Plea of self-defence taken by the
accused - Whether available when accused himself were aggressor - Accidental firing plea - Burden of
proof under S. 105 Evidence Act upon the accused- plea of private defence was wholly untenable -
Evidence proved the accused were aggressors who arrived armed - defence that the deceased attempted to
snatch the gun and the firing occurred accidentally was found false - no injury or mark of struggle on the
accused- Accused failed to establish circumstances generating reasonable apprehension of death or grievous
hurt to be taken in self-defence- Held further, even if plea of private defence is not expressly taken, Court
may consider it if it arises from material; however, here the material discredited the defence version.

Indian Penal Code, 1860 - S. 34 - Common intention - Participation by exhortation - Liability of coaccused even if they did not fire- Held, exhortation to kill, arrival armed with weapons, and collective conduct
established common intention-Though only one accused fired the fatal shot-other accused shared common
intention to commit murder-presence with deadly weapons and active participation in threatening the
deceased made S. 34 IPC applicable

Indian Evidence Act, 1872 - S. 3 - Appreciation of evidence - Eyewitness account - presence was
natural - cross-examination could not shake credibility -Minor inconsistencies - Not fatal.

No role given to two accused-only presence shown on the site- can not be said prior meeting of mind or
any premeditation to commit murder-two accused conviction and sentence set aside.

Held - Appeal Partly Allowed.

List of Cases cited:

1. Darshan Singh v. State of Punjab 2010 (2) SCC (Cri) 1037

2. Yogendra Morarji v. State of Gujarat AIR 1980 SC 660

(Delivered by Hon'ble Arvind K. Tripathi, J)

1. Shri Rajul Bhargava, learned counsel for the appellants assisted by Ms. Archana
Tripathi, Advocate appeared on behalf of the appellants and Shri Mahendra Singh Yadav, learned
A.G.A. appeared on behalf of the State.
648 INDIAN LAW REPORTS ALLAHABAD SERIES
2. The instant Criminal Appeal has been preferred against the judgment and order of
conviction and sentence dated 17.2.2004 passed by learned Additional Sessions Judge, Fast Track
Court No.2, Ballia in Sessions Trial No.16 of 2003 arising out of Case Crime No.105/2002 under
sections 302, 504, 506 I.P.C. PS.Sukhpura, District Ballia convicting and sentencing the appellant
Tribhuwan Singh under section 302 I.P.C. and accused appellants Nagendra Singh, Dharmendra
Singh and Malti Devi under sections 302 read with 34 I.P.C. for life imprisonment with fine for a
sum of Rs.5000/-, in default of payment of fine one year's additional imprisonment was awarded.
All the appellants were acquitted under section 504/506 I.P.C.

3. The brief facts of the case is that the First Information Report was lodged and registered
at Police Station Sukhpura at Case Crime No.105/02 under sections 302/504/506 I.P.C. by the
informant Mukesh Kumar Singh, son of the deceased. The First Information Report was got written
by scribe Anil Kumar Singh s/o Satyadeo Singh, r/o Sukhpura. According to First Information
Report Ramesh Kumar Singh r/o Police Station Sukhpura, District Ballia. His father was working
at Ganga Nagar, Rajasthan. His father, the informant and other family members came from Ganga
Nagar to Sukhpura village on 10.7.2002. There was 'Gobargas plant and garhi (small pond)behind
his house. On 11.7.2002 at about 4.30 P.M. on the said land behind his house the accused appellant
Tribhuwan Singh s/o Nagendra Singh, Nagendra Singh s/o Gauri Singh, Dharmendra Singh s/o
Nagendra Singh suddenly started unloading soil from tractor. His father Ramesh Kumar Singh
raised objection, then they abused and asked him to leave the place otherwise he would be killed. In
the meantime Nagendra Singh, accused appellant exhorted to bring licensed gun, pharsa and
country made pistol from house and to kill him. Thereafter meantime Tribhuwan Singh went
towards his house by scooter and when he returned, his sister was sitting on pillion of scooter. After
alighting from the scooter Tribhuwan Singh took himself gun and gave pharsa to his father and
katta to his sister Malti Devi. All the said four accused appellants abused and exhorted with an
intention to kill. Trbhuwan Singh shot fire with gun at his father who after receiving gunshot injury
fell down. The entire incident was witnessed by Anil Kumar Singh s/o Parshuram r/o Sukhpura,
Kameshwar Singh s/o late Chandrama Singh r/o Sukhpura, Bhola Singh s/o Lalmuni Singh r/o
Sukhpura and other persons. He took his father in an injured condition with the help of other
persons for treatment to Sadar Hospital where doctor declared him dead. Leaving the dead body in
the hospital, he went to lodge the First Information Report on the same day i.e. on 11.7.2003 which
was got written by scribe Anil Kumar Singh. The First Information Report was registered at 18-15
(6.16 P.M). The distance from the place of the occurrence to the police station was about one km.
After the First Information Report was registered, chick report was prepared. G.D. entry was made.
Panchayatnama was prepared as Ext.Ka.3. From the spot blood stained and simple soil were taken.

4. Postmortem examination was conducted that was prepared and proved as Ext.Ka.4. Map
and site plan were prepared. The statement of the witnesses were recorded. After completing
formalities charge sheet Ext.Ka.7 was filed by the Investigating Officer. Chick report First
Information Report was exhibited as Ext.Ka-8. G.D. entry was proved and exhibited as Ext.Ka-9.
Other relevant papers were filed and exhibited.
4 All. Malti Devi Singh & Ors. Vs State Of U.P.

649
5. The prosecution to prove its case, examined as many as eight witnesses namely, PW-1
Anil Kumar Singh, eyewitness, PW-2 Mukesh Kumar Singh, son of the deceased who is also
eyewitness and lodged the First Information Report, PW-3 Bhola Singh (eyewitness account), PW4 Dr.B.K.Rai, Medical Officer, Sadar Hospital, District Ballia who conducted the postmortem
examination on the body of the deceased Ramesh Kumar Singh and proved the postmortem
examination report, PW-5 Vijay Shanker Yadav, SHO, Narhi Police Station, District Ballia proved
the G.D. entry and other papers including site plan, PW-6 constable Kanhaiya Tiwari who was
posted at Police Station Sukhpura who prepared chick Report and made G.D. entry no.18 on 18.15
P.M on 11.7.2002. Constable Mahendra Singh was examined as PW-7 who was present at the time
of panchayatnama. Thereafter the dead body was sealed and sent to mortuary for postmortem
examination, PW-8 Pramod Mishra who proved the case diary and proved carbon copy. After the
evidence was closed from side of the prosecution, the statement of the accused appellants were
recorded under section 313 Cr.P.C. It was stated by the Nagendra Singh that the father of the
accused appellant Tribhuwan Singh was falsely implicated. According to him he was present there
with licensed gun on the date of the incident. He was cleaning the land in question. The other side
wanted to grab the land forcibly. When Ramesh Kumar Singh and others with an intention to grab
the land came there, they were armed with lathi, bhala, pharsa. They wanted to attack hence just to
threat them and to avoid the incident pointed out the gun and said that he would fire. The deceased
Ramesh Kumar Singh while exhorting reached near him and tried to snatch the gun. Incidentally
there was fire causing firearm injury to the deceased Ramesh Kumar Singh. Intentionally he did not
fire to cause injury. However, false allegation was made to implicate him. According to accused
appellant Dharmendra Singh he being brother of Tribhuwan Singh, was implicated. According to
Malti Devi who also denied the allegations and charges and said that being sister of Tribhuwan
Singh she was falsely implicated in the present case. However, no evidence was placed in defence.

6. The postmortem examination on the body of the deceased Ramesh Kumar Singh was
conducted by Dr. B.K.Rai, PW-4 on 12.7.2003 at 4.30 P.M. and he noted following ante-mortem
injuries:
 1) Lacerated wound 3 cm x 3 cm in round. Margin inverted. Blackening on skin present
around the wound.

 2) Skin rashes present on chest and both shoulder joint.

 3) On internal examination brain was found congested. Right lung punctured, fracture on
1st 2nd 3rd ribs. Death was about one day old, since the postmortem examination was done. The
cause of death was due to shock as a result of firearm injuries.

7. After hearing parties and perusal of the record trial court held the appellant Tribhuwan
Singh guilty under section 302 I.P.C. and other appellants under section 302 read with 34 I.P.C.
who were convicted for life imprisonment with fine. However, they were acquitted under section
504/506 I.P.C.
650 INDIAN LAW REPORTS ALLAHABAD SERIES
8. Being aggrieved against the impugned judgment of conviction and sentence the present
appeal has been preferred.

9. Counsel for the appellants assailed the judgment on the ground that the other side was
aggressor. It was sudden fight on the spur of the moment and in exercise of right of self defence the
accused appellant Tribhuwan Singh shot fire which caused injuries to the deceased Ramesh Kumar
Singh. He further contended that it was not a case of premeditation. While Ramesh Kumar Singh
deceased tried to snatch the gun and the accused appellant Tribhuwan Singh did not cause it, hence
during snatching by both the persons it was accidental fire, hence no offence is made out against
the appellants and even against the appellant Tribhuwan Singh no offnce is made out. He further
contended that had there been intention to kill, then all the appellants should have used their
respective weapons i.e. gun, country made pistol and pharsa, hence clearly it was an accidental fire.
Since the other side were armed with weapons. Hence there was apprehension of attack by them as
even earlier the incident had taken place and as such just to threat and stop other side gun was
pointed towards them. Hence even if, the prosecution case is admitted, in view of the defence. It is
a case of self defence and as such no offence is made out and impugned judgement of conviction
and sentence is liable to be set aside.

10. Learned counsel for the appellants further submitted that whether the incident took
place in a sudden fight on the spur of the moment and even if the appellant exceeded right of self
defence, then in both the cases offence will not travel beyond section 304 I.P.C. and so for as
Tribhuwan Singh is concerned he is in jail since 17.7.2002, hence he has completed more than
thirteen and half years. He relied the judgement of the Apex Court reported in 2010 (2)
SCC(Cr.)1037, Darshan Singh vs. State of U.P.
Darshan Singh Vs. State of Punjab and another, 2010(2) SCC (Cr.) 1037

24. The rule as to the right of private defence has been stated by Russel on Crime
(11th Edn., Vol.1, p.491) thus:

"..... a man is justified in resisting by force anyone who manifestly intends and
endeavours by violence or surprise to commit a known felony against either his person, habitation
or property. In these cases he is not obliged to retreat, and may not merely resist the attack where
he stands but may indeed pursue his adversary until the danger is ended, and if in a conflict
between them he happens to kill his attacker, such killing is justifiable."

25. When enacting sections 96 to 106 of the Indian Penal Code, excepting from its
penal provisions, certain classes of acts, done in good faith for the purpose of repelling unlawful
aggressions, the Legislature clearly intended to arouse and encourage the manly spirit of selfdefence amongst the citizens, when faced with grave danger. The law does not require a lawabiding citizen to behave like a coward when confronted with an imminent unlawful aggression. As
repeatedly observed by this court there is nothing more degrading to the human spirit than to run
away in face of danger. The right of private defence is thus designed to serve a social purpose and
deserves to be fostered within the prescribed limits.
4 All. Malti Devi Singh & Ors. Vs State Of U.P.

651
26. Hari Singh Gour in his celebrated book on Penal Law of India (11th Edition
1998-99) aptly observed that self-help is the first rule of criminal law. It still remains a rule, though
in process of time much attenuated by considerations of necessity, humanity, and social order.
According to Bentham, in his book 'Principles of Penal Laws' has observed "the right of defence is
absolutely necessary". It is based on the cardinal principle that it is the duty of man to help himself.

27. Killing in defence of a person, according to the English law, will amount to
either justifiable or excusable homicide or chance medley, as the latter is termed, according to the
circumstances of the case.

28. But there is another form of homicide which is excusable in self-defence. There
are cases where the necessity for self- defence arises in a sudden quarrel in which both parties
engage, or on account of the initial provocation given by the person who has to defend himself in
the end against an assault endangering life.

29. The Indian Penal Code defines homicide in self-defence as a form of
substantive right, and therefore, save and except the restrictions imposed on the right of the Code
itself, it seems that the special rule of English Law as to the duty of retreating will have no
application to this country where there is a real need for defending oneself against deadly assaults.

30. The right to protect one's own person and property against the unlawful
aggressions of others is a right inherent in man. The duty of protecting the person and property of
others is a duty which man owes to society of which he is a member and the preservation of which
is both his interest and duty. It is, indeed, a duty which flows from human sympathy. As Bentham
said: "It is a noble movement of the heart, that indignation which kindles at the sight of the feeble
injured by the strong. It is noble movement which makes us forget our danger at the first cry of
distress..... It concerns the public safety that every honest man should consider himself as the
natural protector of every other." But such protection must not be extended beyond the necessities
of the case, otherwise it will encourage a spirit or lawlessness and disorder. The right has,
therefore, been restricted to offences against the human body and those relating to aggression on
property.

31. When there is real apprehension that the aggressor might cause death or
grievous hurt, in that event the right of private defence of the defender could even extend to
causing of death. A mere reasonable apprehension is enough to put the right of self-defence into
operation, but it is also settled position of law that a right of self-defence is only right to defend
oneself and not to retaliate. It is not a right to take revenge.

32. Right of private defence of person and property is recognized in all free,
civilsed, democratic societies within certain reasonable limits. Those limits are dictated by two
considerations : (1) that the same right is claimed by all other members of the society and (2) that it
is the State which generally undertakes the responsibility for the maintenance of law and order. The
citizens, as a general rule, are neither expected to run away for safety when faced with grave and
652 INDIAN LAW REPORTS ALLAHABAD SERIES
imminent danger to their person or property as a result of unlawful aggression, nor are they
expected, by use of force, to right the wrong done to them or to punish the wrong doer of
commission of offences.

33. A legal philosopher Michael Gorr in his article "Private Defense" (published in
the Journal "Law and Philosophy" Volume 9, Number 3 / August 1990 at Page 241) observed as
under:
"Extreme pacifists aside, virtually everyone agrees that it is sometimes morally
permissible to engage in what Glanville Willams has termed "private defence", i.e., to inflict
serious (even lethal) harm upon another person in order to protect oneself or some innocent third
party from suffering the same".

34. The basic principle underlying the doctrine of the right of private defence is
that when an individual or his property is faced with a danger and immediate aid from the State
machinery is not readily available, that individual is entitled to protect himself and his property.
The right of private defence is available only to one who is suddenly confronted with the necessity
of averting an impending danger not of self creation. That being so, the necessary corollary is that
the violence which the citizen defending himself or his property is entitled to use must not be
unduly disproportionate to the injury which is sought to be averted or which is reasonably
apprehended and should not exceed its legitimate purpose.

35. This court in number of cases have laid down that when a person is exercising
his right of private defence, it is not possible to weigh the force with which the right is exercised.
The principle is common to all civilized jurisprudence. In Robert B. Brown v. United States of
America (1921) 256 US 335, it is observed that a person in fear of his life in not expected to
modulate his defence step by step or tier by tier. Justice Holmes in the aforementioned case aptly
observed "detached reflection cannot be demanded in the presence of an uplifted knife".

36. According to Section 99 of the Indian Penal Code the injury which is inflicted
by the person exercising the right should commensurate with the injury with which he is
threatened. At the same time, it is difficult to expect from a person exercising this right in good
faith, to weigh "with golden scales" what maximum amount of force is necessary to keep within the
right every reasonable allowance should be made for the bona fide defender. The courts in one
voice have said that it would be wholly unrealistic to expect of a person under assault to modulate
his defence step by step according to attack.

37. The courts have always consistently held that the right of private defence
extends to the killing of the actual or potential assailant when there is a reasonable and imminent
apprehension of the atrocious crimes enumerated in the six clauses of section 100 of the IPC.
According to the combined effect of two clauses of section 100 IPC taking the life of the assailant
would be justified on the plea of private defence; if the assault causes reasonable apprehension of
death or grievous hurt to the person exercising the right. A person who is in imminent and
reasonable danger of losing his life or limb may in the exercise of right of self-defence inflict any
4 All. Malti Devi Singh & Ors. Vs State Of U.P.

653
harm, even extending to death on his assailant either when the assault is attempted or directly
threatened.

38.When we see the principles of law in the light of facts of this case where
Darshan Singh in his statement under section 313 has categorically stated that "Gurcharan Singh
gave a gandasa blow hitting my father Bakhtawar Singh on the head as a result of which he fell
down. I felt that my father had been killed. Gurcharan Singh then advanced towards me holding the
gandasa. I apprehended that I too would be killed and I then pulled the trigger of my gun in self
defence." Gurcharan Singh died of gun shot injury.In the facts and circumstances of this case the
appellant, Darshan Singh had the serious apprehension of death or at least the grievous hurt when
he exercised his right of private defence to save himself.

BRIEF ENUMERATION OF IMPORTANT CASES:

39. The legal position which has been crystallized from a large number of cases is
that law does not require a citizen, however law-abiding he may be, to behave like a rank coward
on any occasion. This principle has been enunciated in Mahandi v. Emperor [(1930) 31 Criminal
Law Journal 654 (Lahore); Alingal Kunhinayan & Another v. Emperor Indian Law Reports 28
Madras 454; Ranganadham Perayya, In re (1957) 1 Andhra Weekly Reports 181.

40. The law clearly spells out that right of private defence is available only when
there is reasonable apprehension of receiving the injury. The law makes it clear that it is necessary
that the extent of right of private defence is that the force used must bear a reasonable proportion of
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. A person in fear of his life is not expected to
modulate his defence step by step, but at the same time it should not be totally disproportionate.

58. The following principles emerge on scrutiny of the following judgments:

(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. It is enough if the accused apprehended
that such an offence is contemplated and it is likely to be committed if the right of private defence
is not exercised.
654 INDIAN LAW REPORTS ALLAHABAD SERIES
(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 Indian 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.

Yogendra Morarji vs State Of Gujarat on 10 December, 1979, 1980 (2) SCC (Cr.)
394 Equivalent citations: AIR 1980 SC 660, 1980 CriLJ 459, (1980) 2 SCC 218
Author: R Sarkaria

13. The Code excepts from the operation of its penal clauses large classes of acts
done in good faith for the purpose of repelling unlawful aggression but this right has been regulated
and circumscribed by several principles and limitations. The most salient of them concerned the
defence of body are as under? Firstly, there is no right of private defence against an act which is not
in itself an offence under the Code; Secondly, the right commences as soon as and not before a
reasonable apprehension of danger to the body arises from an attempt or threat to commit some
offence although the offence may not have been committed and it is conterminous with the duration
of such apprehension (Section 102). That is to say, right avails only against a danger imminent,
present and real; Thirdly, it is a defensive and not & punitive or retributive right. Consequently, in
no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose
of the defence. (Section 99). In other words, the injury which is inflicted by the person exercising
the right should be commensurate with the injury with which he is threatened. At the same time, it
is difficult to expect from a person exercising this right in good faith, to weigh "with golden scales"
what maximum amount of force is necessary to keep within the right Every reasonable allowance
should be made for the bona fide defender "if he with the instinct of self-preservation strong upon
him, pursues his defence a little further than may be strictly necessary in the circumstances to avert
the attack." It would be wholly unrealistic to expect of a person under assault, to modulate his
defence step by step according to the attack; Fourthly, the right extends to the killing of the actual
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655
or potential assailant when there is] a reasonable and imminent apprehension of the atrocious
crimes enumerated in the six clauses of Section 100. For our purpose, only the first two clauses of
Section 100 are relevant The combined effect of these two clauses is that taking the life of the
assailant would be justified on the plea of private defence; if the assault causes reasonable
apprehension of death or grievous hurt to the person exercising the right. In other words, a person
who is in imminent and reasonable danger of losing his life or limb may in the exercise of right of
self-defence inflict any harm, even extending to death on his assailant either when the assault is
attempted or directly threatened. This principle is also subject to the preceding rule that the harm or
death inflicted to avert the danger is not substantially disproportionate to and incommensurate with
the quality and character of the perilous act or threat intended to be repelled; Fifthly, there must be
no safe or reasonable mode of escape by retreat, for the person confronted with an impending peril
to life or of grave bodily harm, except by inflicting death on the assailent; Sixthly; the right being,
in essence, a defensive right, does not accrue and avail where there is "time to have recourse to the
protection of the public authorities." (Section 99).

14. Before coming to the facts of the instant case, the principles governing the
burden of proof where the accused sets up a plea of private defence, may also be seen, Section 105,
Evidence Act enacts an exception to the general rule whereby in a criminal trial the burden of
proving everything necessary to establish the charge against the accused beyond reasonable doubt,
rests on the prosecution. According to the section, the burden of proving the existence of
circumstances bringing the case within any of the General Exceptions in the Indian Penal Code; or
within any special exception or proviso contained in any other part of the Code or in any other
Law, shall be on the accused person, and the Court shall presume the absence of such
circumstances. But this Section does not neutralise or shift the general burden that lies on the
prosecution to prove beyond reasonable doubt all the ingredients of the offence with which the
accused stand charged. Therefore, where the charge about the accused is one of culpable homicide,
the prosecution must prove beyond all manner of reasonable doubt that the accused caused the
death with the requisite knowledge or intention described in Section 299 of the Penal Code. It is
only after the prosecution so discharges its initial traditional burden establishing the complicity of
the accused, that the question whether or not the accused had acted in the exercise of his right of
private defence, arises. As pointed out by the Court in Dahyabhai v. State of Gujarat , under
Section 105, read with the definition of "shall presume" in Section 5, Evidence Act, the Court shall
regard the absence of circumstances on the basis of which the benefit of an Exception (such as the
one on which right of private defence is claimed), as proved unless, after considering the matters
before it, it believes that the said circumstances existed or their existence was so probable that a
prudent man ought, under the circumstances of the particular case, to act upon the supposition that
they did exist. The accused has to rebut the presumption envisaged in the last limb of Section 105,
by bringing on record evidential material before the Court sufficient for a prudent man to believe
that the existence of such circumstances is probable. In other words, even under Section 105, the
standard of proof required to establish those circumstances is that of a prudent man as laid down in
Section 3, Evidence Act. But within that standard there are degrees of probability, and that is why
under Section 105, the nature of burden on an accused person claiming the benefit of an Exception,
is not as onerous as the general burden of proving the charge beyond reasonable doubt cast on the
656 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution. The accused may discharge his burden by establishing a mere balance of probabilities
in his favour with regard to the said circumstances.

15. The material before the Court to establish such a preponderance of probability
in favour of the defence plea may consist of oral or documentary evidence, admissions appearing in
evidence led by the prosecution or elicited from prosecution witnesses in cross-examination
presumptions, and the statement of the accused recorded under Section 313 of the CrPC, 1973.

16. Notwithstanding the failure of the accused to establish positively the existence
of circumstances which would bring his case within an Exception, the circumstances proved by him
may raise a reasonable doubt with regard to one or more of the necessary ingredients of the offence
itself with which the accused stands charged. Thus, there may be cases where, despite the failure of
the accused to discharge his burden under Section 105, the material brought on the record may, in
the totality of the facts and circumstances of the case, be enough to induce in the mind of the Court
a reasonable doubt with regard to the mens rea requisite for an offence under Section 299 of the
Code (See Dahyabhai v. State of Gujarat (ibid) State of U. P. v. Ram Swarup , Pratap v. State of
U.P.

17. Let us now deal with the facts of the case in hand in the light of the principles
stated above. We have already stated that the presence of the eye-witnesses, Khima (P.W. 2),
Ravudan (P. W. 3) and Rata Sava (P. W. 4) at the time and place of occurrence and their evidence
on the narrow point that the accused fired three shots from his revolver one of which hit and caused
the death of Kana was not challenged by the accused in cross-examination or otherwise at any
stage. Therefore, the position is that in the absence of proof of circumstances that the accused had
caused the death in the exercise of his right of private defence, the charge of culpable homicide
would be held to have been established against him by the prosecution. We must therefore focus
our attention on these points: Had the accused discharged the burden that lay on him under Section
105, Evidence Act to prove his plea of private defence? Had he sufficiently established on a
balance of probabilities all the circumstances necessary to show that the homicide of Kana was
justified on the ground of self defence? If the answer to the preceding questions be in the negative,
does the evidential material on record, albeit insufficient to establish affirmatively the
circumstances necessary to bring his case within the relevant General Exceptions contained in the
Penal Code, conferring and regulating the exercise of the right of private defence of body, in the
totality of the circumstances of the case, has the effect and impact of inducing a reasonable doubt
with regard to the mensrea requisite for the offence of culpable homicide?

17A. At First, we may catalogue here certain admitted or undisputed facts
appearing in the prosecution evidence itself. These are:

1. About 45 minutes or one hour before the occurrence, there was a sharp quarrel
or heated altercation between the accused, Yogendra, on one side, and Ravudan (P. W. 3), Rata
(P.W. 5), Vala and Kana (deceased) on the other, over payment of certain amounts.
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657
Kana was claiming Rs. 60A- as his dues from Yogendra on account of stones
quarried and supplied by him to the accused a few days earlier (vide Khima, P. W. 2), Similarly,
Ravudan and his workmen, Vala and Rata were demanding Rs, 200/- from the appellant, which,
according to Ravudan, was the amount due to him from the appellant in respect of the digging of a
well, Yogendra not only refused to pay anything to them, but unceremoniously turned them out of
She house of Malshi, This rude behavior of the accused was (sic)esented by Ravudan and Ms
companions (vide Ravudan, P. W. 3 and Rata, P.W. 5).

2. On being turned out of the house of Malshi, Ravudan, Kana, Vala and Rata met
Khima who Joined them Just outside the house of Malshi and assured them that he Would get soma
amount for them from the accused with whom ha (Khima) claimed to have good, relations,

3. While discussing among themselves about the dispute with the accused over
payment of their dues, these five persons, namely, Khima, Kana, Ravudan, Rata and Vala moved to
some distance from the house of Malshi along the road and reached near the field of one Vira
Momaya. The distance between the place of occurrence and the Vada of Malshi, according to
Khima (P.W. 2), is 100 paces? while according to the inspection note of the trial Judge, this
distance is 325 ft,, Even if Khima's version was taken at its face value, the fact remains that these
persons went together to a considerable distance along the cart-road leading; to Bhuj.

4. These fives persons then stood or fingered together in or by the side of the road
for about 45 minutes or about one hour, at a considerable distance from the house of Malshi.

The inference about the duration at their remaining there in or by the side of fee
road, is deducible from the prosecution evidence itself. In the F.I.R. as well as at the trial, Khima
(P.W. 2) stated that the dispute with the accused in the house of Malshi over payment of the dues of
Kana, Ravudan, etc. took place at about 8 p. m. In the F. I, R., Khima gave the time of seeing the
jeep of the accused coming out, of the Vada of Malshi as 9.30 p. m., implying that the occurrence
took place shortly after 9.30 p.m. After trial, he did not pin-point the time of occurrence, though an
effort to give the impression that the incident took place soon after their coming out of the Vada of
Malshi is discernible, Ravudan (P. W. 3) admitted in cross examination'that Kana received the fatal
shot at about 9.15 or 9.30 p.m, According to him, the dispute over payment of their dues with the
accused in the house of Malshi took place sometime between 8 and 0 p.m. The statement of P.W. 5
is on this point, similar to that of P.W. 3. Jesang Sava (P. W. 6), Sarpanch stated that it was 9 p. m.
when he heard the report of gunshot Ganga Ala (P. W. 7) places the time of occurrence at about
9.15 p.m. on the basis of the gun-fire report heard by him and P.W. 6, while they were in the Chora.
Taking the time of the quarrel inside the house of Malshi as about 8.15 p. m. (on the basis of the
evidence of Khima, Ravudan and Rata), and that of the occurrence as 9.15 p.m. , it is evident that
these five persons were lingering in that road leading to Bhuj, for about 45 or 60 minutes,

5. According to the F. I. R. (Ex, A) lodged by Khima, they were all "waiting
outside" to explain/convince Yogendra-bhai" when he would come out in his car for going to Bhuj
and that was why ha had tried to stop the car by raising the hand. He admits that the F.I. R, was
658 INDIAN LAW REPORTS ALLAHABAD SERIES
made by him and signed by him, although he adds that before obtaining his signature thereon, it
was not read over to him, Even so, Khima did not specifically dis-own this portion of Ex.