# 1 S.C.R. 642 DARSHAN SINGH v. STATE OF PUNJAB & ANR

- **Citation:** [2010] 1 S.C.R. 642
- **Court:** Supreme Court of India
- **Decided:** 2010-01-15
- **Case number:** Criminal Appeal No. 1057 of 2002
- **Bench:** Dalveer Bhandari, Asok Kumar Ganguly
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1-s-c-r-642-darshan-singh-v-state-of-punjab-anr-26509
- **Pages:** 36

## Headnote

Penal Code, 1860:
ss. 96, 97 and 100 - Right to private defence - Exercise
of - Land dispute between parties - Gun shot injury by .
accused resulting in death of deceased - Plea of private
defence by accused - Acquittal by trial court - Set aside by
0
High Court and conviction of accused - On appeal, held: Law
does not require a law-abiding citizen to behave like a coward
when confronted with an imminent unlawful aggression -
When there is real apprehension that aggressor might cause
death or grievous hurt, right of private defence of defender
extends to killing the aggressor - On facts, accused had
E serious apprehension of death or at least grievous hurl when
he exercised his right of private defence to save himself -
Role attributed to accused is fully covered by his right of
private defence - Trial court's view is the possible view and
is based on the entire evidence on record - Thus, order of
F
acquittal restored.
Right to private defence - Guiding principles for exercise
of right to private defence - Explained.
G
Appeal: Appeal against acquittal - Scope of interference
- Held: If trial court's view is a possible or plausible view, then
appellate court or High Court is not justified in interfering with
it- There is presumption of innocence which is further fortified
with the acquittal of accused by trial court.
H
642
DARSHAN SINGH v. STATE OF PUNJAB & A.NR.
643
According to the prosecution case, there was a A
dispute between two brothers GS and BS with regard to
partition of land. On the fateful day, the complainant party
were irrigating their fields and cutting the ridges. GD and
AS were also present. BS gave gandasa blow causing
injuries on the chest of GS. GS then attacked BS with a B
gandasa on his head and BS fell down. Thereafter, the
appellant-son of BS fired two shots from his licensed gun
which hit GS in the chest and some of the pellets hit GR
and GD. GS died on the spot. Appellant claimed right of
private defence. Trial court acquitted the appellant and c
BS. High Court set aside the order of acquittal and
convicted them. Hence the present appeal. During the
pendency of the appeal BS died.
Allowing the appeal, the Court
HELD: 1. In the facts and circumstances of the
instant case, the appellant had the serious apprehension
D
of death or at least the grievous hurt when he exercised
his right of private defence to save himself. The role
attributed to the appellant is fully covered by his right of E
private defence. The impugned judgment of the High
Court is set aside and the judgment of acquittal of the trial
court is restored. [Paras 37 and 65) (668-E; 677-A-B]
SCOPE AND FOUNDATION OF PRIVATE DEFENCE:
2.1. In order to justify the act of causing death of the
assailant, the accused has simply to satisfy the court that
he was faced with an assault which caused a reasonable
F
/apprehension of death or grievous hurt. The question
whether, the apprehension was reasonable or not is a G
question of fact depending upon the facts and
circumstances of each case and no strait-jacket formula
can be prescribed in this regard. The weapon used, the
manner and nature of assault and other surrounding
circumstances should be taken into account while H
644
SUPREME COURT REPORTS
(2010] 1 S.C.R.
A evaluating whether the apprehension was justified or
not? (Para 23] (664-A-C]
2.2. When enacting ss. 96 to 106 IPC excepting from
its penal provisions, certain classes of acts, done in good
8
faith for the purpose of repelling unlawful aggressions,
the Legislature clearly intended to arouse and encourage
the manly spirit of self-defence amongst the citizens,
when faced with grave danger. The law does not require a
law-abiding citizen to behave like a coward when confronted
C with an imminent unlawful aggression. 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. [Paras 24 and

## Text

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A
B
c
[2010) 1 S.C.R. 642
DARSHAN SINGH
v.
STATE OF PUNJAB & ANR.
(Criminal Appeal No. 1057 of 2002)
JANUARY 15, 2010
[DALVEER BHANDARI AND ASOK KUMAR
GANGULY, JJ.)
Penal Code, 1860:
ss. 96, 97 and 100 - Right to private defence - Exercise
of - Land dispute between parties - Gun shot injury by .
accused resulting in death of deceased - Plea of private
defence by accused - Acquittal by trial court - Set aside by
0
High Court and conviction of accused - On appeal, held: Law
does not require a law-abiding citizen to behave like a coward
when confronted with an imminent unlawful aggression -
When there is real apprehension that aggressor might cause
death or grievous hurt, right of private defence of defender
extends to killing the aggressor - On facts, accused had
E serious apprehension of death or at least grievous hurl when
he exercised his right of private defence to save himself -
Role attributed to accused is fully covered by his right of
private defence - Trial court's view is the possible view and
is based on the entire evidence on record - Thus, order of
F
acquittal restored.
Right to private defence - Guiding principles for exercise
of right to private defence - Explained.
G
Appeal: Appeal against acquittal - Scope of interference
- Held: If trial court's view is a possible or plausible view, then
appellate court or High Court is not justified in interfering with
it- There is presumption of innocence which is further fortified
with the acquittal of accused by trial court.
H
642
DARSHAN SINGH v. STATE OF PUNJAB & A.NR.
643
According to the prosecution case, there was a A
dispute between two brothers GS and BS with regard to
partition of land. On the fateful day, the complainant party
were irrigating their fields and cutting the ridges. GD and
AS were also present. BS gave gandasa blow causing
injuries on the chest of GS. GS then attacked BS with a B
gandasa on his head and BS fell down. Thereafter, the
appellant-son of BS fired two shots from his licensed gun
which hit GS in the chest and some of the pellets hit GR
and GD. GS died on the spot. Appellant claimed right of
private defence. Trial court acquitted the appellant and c
BS. High Court set aside the order of acquittal and
convicted them. Hence the present appeal. During the
pendency of the appeal BS died.
Allowing the appeal, the Court
HELD: 1. In the facts and circumstances of the
instant case, the appellant had the serious apprehension
D
of death or at least the grievous hurt when he exercised
his right of private defence to save himself. The role
attributed to the appellant is fully covered by his right of E
private defence. The impugned judgment of the High
Court is set aside and the judgment of acquittal of the trial
court is restored. [Paras 37 and 65) (668-E; 677-A-B]
SCOPE AND FOUNDATION OF PRIVATE DEFENCE:
2.1. In order to justify the act of causing death of the
assailant, the accused has simply to satisfy the court that
he was faced with an assault which caused a reasonable
F
/apprehension of death or grievous hurt. The question
whether, the apprehension was reasonable or not is a G
question of fact depending upon the facts and
circumstances of each case and no strait-jacket formula
can be prescribed in this regard. The weapon used, the
manner and nature of assault and other surrounding
circumstances should be taken into account while H
644
SUPREME COURT REPORTS
(2010] 1 S.C.R.
A evaluating whether the apprehension was justified or
not? (Para 23] (664-A-C]
2.2. When enacting ss. 96 to 106 IPC excepting from
its penal provisions, certain classes of acts, done in good
8
faith for the purpose of repelling unlawful aggressions,
the Legislature clearly intended to arouse and encourage
the manly spirit of self-defence amongst the citizens,
when faced with grave danger. The law does not require a
law-abiding citizen to behave like a coward when confronted
C with an imminent unlawful aggression. 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. [Paras 24 and 38]
D (664-F-H; 668-F-G]
E
Mahandi v. Emperor (1930) 31 Criminal Law Journal
654 (Lahore); Alingal Kunhinayan and Anr. v. Emperor Indian
Law Reports 28 Madras 454; Ranganadham Perayya
(1957) 1 Andhra Weekly Reports 181, referred to.
Russel on Crime 11th Edn., Vol.1, p.491; Penal Law of
India by Hari Singh Gour 11th Edition 1998-99; Principles
of Penal Laws' by Bentham, referred to.
2.3. The right to protect one's own person and
F 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
G which flows from human sympathy. But such p11ote1tion
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
offe,nc:es against the human body and those relating to
H
agg~ssion on property. [Para 29) [665-F-H; 666-A-BJ
DARSHAN SINGH v. STATE OF PUNJAB & ANR.
645
2.4. When there is real apprehension that the A
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 B
right of self-defence is only right to defend oneself and
not to retaliate. It is not a right to take revenge. [Para 30)
[666-C]
2.5. Right of private defence of person and property
is recognized in all free, civilsed, democratic societies C
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 D
general rule, are neither expected to run away for safety
when faced with grave and 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 E
offences. [Para 31) [666-D-F]
Article on 'Private Defense' by Michael Gorr published
Jn Journal "Law and Philosophy" Volume 9, Number 3 I
August 1990 p. 241, referred to.
F
2.6. 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 G
of private defence is availa!1ble 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 H
646
SUPREME COURT REPORTS
[2010) 1 S.C.R.
A
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. [Para 33) [667-B-C]
8
2.7. According to s. 99 IPC 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
C right every reasonable allowance should be made for the
bona fide defender. It would be wholly unrealistic to
expect of a person under assault to modulate his defence
step by step according to attack. [Paras 35) [667-F-G]
D
Robert B. Brown v. United States of America (1921) 256
US 335, referred to.
2.8. The right of private defence extends to the killing
of the actual or potential assailant when there is a
E reasonable and imminent apprehension of the atrocious
crimes enumerated in the six clauses of section 100 IPC.
According to the combined effect of two clauses of s. 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
F
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 harm, even
extending to death on his assailant either when the
assault is attempted or directly threatened. It is necessary
G 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
H expected to modulate his defence step by step, but at the
DARSHAN SINGH v. STATE OF PUNJAB & ANR.
647
; same time it should not be totally disproportionate. [Paras A
36 and 39] [667-H; 668-A..C; 669-A-B]
3. The following principles of right to private defence
emerge on scrutiny of the relevant judgments~
(i) Self-preservation is the basic human instinct and B
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 selfcreation.
c
(iii) A mere reasonable apprehension is enough to D
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 E
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 coF
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.
G
H
648
A
B
SUPREME COURT REPORTS
[2010] 1 S.C.R.
(vii) 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 existenc-e-Of the
right of private defence beyond reasonable doubt.
(ix) The IPC 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
c
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. [Para 58] [674-B-H; 675-A-D]
State of Orissa v. Rabindranath Dalai and Anr. 1973 Crl
D LJ 1686 (Orissa) (FB), approved.
Laxman Sahu v. State of Orissa 1986 (1) Supp SCC
555; Raghavan Achari v. State of Kera/a 1993 Supp. (1) SCC
719; Jagtar Singh v. State of Punjab AIR 1993 SC 970; Puran
E
Singh and Ors. v. The State of Punjab (1975) 4 SCC 518;
Bhagwan Swaroop v. State of Madhya Pradesh (1992) 2 SCC
406; Kashmiri Lal and Ors. v. State of Punjab (1996) 10 SCC
471; James Martin v. State of Kera/a (2004) 2 SCC 203;
Gotipul/a Venkatasiva Subbrayanam and Ors. v. The State
F
of Andhra Pradesh and Anr. (1970) 1 SCC 235; Mahabir
Choudhary v. State of Bihar (1996) 5 SCC 107; Munshi Ram
and Ors. v. Delhi Administration (1968) 2 SCR 455; State of
Madhya Pradesh v. Ramesh (2005) 9 SCC 705; Triloki Nath
and Ors. v. State of UP. (2005) 13 SCC 323; Vidhya Singh
G
v. State of Madhya Pradesh (1971) 3 SCC 244; Jai Dev v.
State of Punjab AIR 1963 SC 612; Buta Singh v. The State
of Punjab (1991) 2 sec 612, relied on.
4.1. The High Court in the impugned judgment
reversed the trial court's judgment of acquittal and
H convicted the accused. Admittedly, appellant fired from
DARSHAN SINGH v. STATE OF PUNJAB & ANR.
649
his 12-bore double barrel gun which '1ad a number of A
pellets. High Court disbelieved the trial court's version
thatGS and GD did not receive fire arm injuries because
no pellet or pellets were recovered from their bodies. In
the impugned order, the High Court without giving any
r.ogent reasons set aside the well considered judgment B
of the trial court. When a shot was fired from a 12-bore
gun and if no pellet was recovered, then the trial court is
not wrong in arriving at the conclusion that the injuries
were not caused by a fire arm. The High Court on this
point discarded the reasoning of the trial court without c
any sound basis. [Paras 59 and 60] [675-D-F]
4.2. The High Court gave the finding that "since it is
a case of dual version, one given by the complainant, who
appears to be a truthful witness when he has not
concealed the role of his father and explained the injury D
of BS. On the contrary, the accused persons came. with
untenable defence." While arriving at this conclusion, the
High Court did not follow the consistent legal position.
The High Court or the appellate court would not be
justified in setting aside a judgment of acquittal only on
E
the ground that the version given by the complainant is
more truthful. [Para 61] [675-G-H; 676-A-B]
·
4.3. High Court unnecessarily laid stress on the point
of recovery of the gun at the instance of appellant. The
F
accused has not denied the incident. The case of the
defence is that their case is covered by the right of private
defence. Appellant admitted in his statement u/s. 313
Cr.P.C., 1973 that he had fired from his licensed gun in
his right of private defence. High Court without properly G
comprehending the entire evidence on record reversed
the well reasoned judgment of the trial court. [Para 63)
[676-E-F]
4.4. In a case of acquittal, if the trial court's view is a
possible or plausible view, then the appellate court or the
H
650
SUPREME COURT REPORTS
[2010) 1 S.C.R.
A High Court would not be justified in interfering with it.
There is presumption of innocence and that presumption
is further fortified with the acquittal of the accused by the
trial court. Appellate court or High Court would not be
justified in reversing the judgment of acquittal unless it
B comes to a clear conclusion that the judgment of the trial
court is utterly perverse and, on the basis of the evidence
on record, no other view is plausible or possible than the
one taken by the appellate court or the High Court. In the
instant case, after marshalling and scrutinizing the entire
c prosecution evidence, the trial court's view is not only the
possible or plausible view but it is based on the correct
analysis and evaluation of the entire evidence on record.
No other view is legally possible. [Paras 62 and 64) [676C-D; G]
D
Cases Law Reference :
(1921) 256 us 335
Referred to.
Para 34
(1930) 31 Criminal Law
Journal 654 (Lahore)
Referred to.
Para 38
E
Indian Law Reports
28 Madras 454
Referred to.
Para 38
(1957) 1 Andhra
F
Weekly Reports 181
Referred to.
Para 38
1973 Crl. LJ 1686
(Orissa) (FB)
Approved.
Para 40
1986 (1) Supp
sec 555
Relied on.
Para 41
G
1993 Supp. (1)
sec 119
Relied on.
Para 42
AIR 1993 SC 970
Relied on.
Para 43
H
DARSHAN SINGH v. STATE OF PUNJAB & ANR.
651
(1975) 4 sec 518
Relied on.
Para 44
A
(1992) 2 sec 406
Relied on.
Para 45
(1996) 10 sec 471
Relied on.
Para 47
(2004) 2 sec 203
Relied on.
Para 48
B
(1970) 1 sec 235
Relied on.
Para 49
(1996) 5 sec 101
Relied on.
Para 50
(1968) 2 SCR 455
Relied on.
Para 51
c
(2005) 9 sec 105
Relied on.
Para 52
(2005) 13 sec 323
Relied on.
Para 53
(1971) 3 sec 244
Relied on.
Para 54
AIR 1963 SC 612
Relied on.
Para 55
D
(1991) 2 sec 612
Relied on.
Para 57
CRIMINAL AP PELLA TE JURISDICTION : Criminal Appeal
No. 1057 of 2002.
E
From the Judgment & Order dated 06.08.2002 of the High
Court of Punjab & Haryana at Chandigarh in Criminal Appeal
No. 446-DBA of 1994.
R.K. Kapoor, Sanjana J. Bali, Shweta Kapoor, Harish
F
Chandr~ Pant, Mansi Dhiman, Gunjan Sinha, Anis Ahmed
Khan, D.P. Singh, Premjit Singh Dhaliwal, Shuchta Srivastava,
Kuldip Singh, Ajay Pal Satyapal Khushal Chand Pasi for the
appearing parties.
The Judgment of the Court was delivered by
G
DALVEER BHANDARI, J. 1. This appeal is directed
against the judgment and order of the Punjab & Haryana High
Court in Criminal Appeal No.446-(Division Bench) of 1994
dated 6.8.2002.
H
652
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A
2. Both Darshan Singh and Bakhtawar Singh were
acquitted by the Sessions Court, Ludhiana. The said judgment
of acquittal was set aside by the High Court of Punjab &
Haryana at Chandigarh.
8
3. Darshan Singh and Bakhtawar Singh filed appeal
against the said judgment before this court. During the
pendency of this appeal, Bakhtawar Singh died and
consequently the appeal filed by him abated.
4. Brief facts which are necessary to dispose of this appeal
C are recapitulated as under:-
The dispute is between very close and mtimatEf family
members. Deceased Gurcharan Singh was the brother of
Bakhtawar Singh and uncle of Darshan Singh. He was the father
0 of Gurdish Singh, PW7, the informant. The agriculture fields of
both brothers, Gurcharan Singh and Bakhtawar Singh were
situated adjoining to each other. According to the prosecution,
on 15.7.1991 at about 8 a.m. Gurdish Singh, PW7 and his
father, Gurcharan Singh were irrigating their aforesaid fields
E and were also mending its ridges and at that time Gurdev Singh,
PW8 and Ajit Singh were also present there. In the meantime,
Darshan Singh and Bakhtawar Singh came there from the side
of their fields raising lalkaras and abused the complainant party.
Darshan Singh, accused was armed with D.B.B.L. gun and his
father Bakhtawar Singh was carrying a Gandasa and they were
F saying that they would teach a lesson to the complainant party
for cutting the ridges.
5. According to the further story of the prosecution,
Bakhtawar Singh gave a Gandasa blow causing injuries on the
G chest of Gurcharan Singh. Gurcharan Singh was also having a
Gandasa with him and in order to save himself he also caused
injury on the head of Bakhtawar Singh. Thereafter, Darshan
Singh fired two shots from his licensed gun which hit Gurcharan
Singh in the chest and some of the pellets hit Gurdish Singh
H PW7 on his left upper arm and Gurdev Singh, PW8 on his left
DARSHAN SINGH v. STATE OF PUNJAB & ANR.
653
(DALVEER BHANDARI, J.)
thigh. Gurcharan Singh fell down and died at the spot. Gurdish
A
Singh and others retraced their steps in order to save
themselves. Both the accused in order to save themselves ran
towards their respective houses. Gurdish Singh, PW7 left the
dead body of Gurcharan Singh and proceeded to the police
station to lodge a report. Gurdev Singh PW8 also accompanied
B
him. They met Om Prakash, ASI at about 9 a.m. at Barnala
crossing where Gurdish Singh PW? gave his statement. It was
then read over and explained to him who signed the same
admitting the contents thereof to be correct. Om Prakash, ASI
made his endorsement (Ex. N/1) and forwarded the statement c
to the poli.ce station, Rajkot and on the basis of which the case
was registered against both the accused.
6. Om Prakash, ASI accompanied Gurdish Singh and
Gurdev Singh to the place of occurrence. He prepared inquest
report in respect of the dead body of Gurcharan Singh and then
D
sent the dead body for post-mortem examination through
Constable Milkba Singh and Head Constable Pargat Singh.
Om Prakash, ASI lifted blood stained earth from the place
where dead body of Gurcharan Singh was lying and took the
same into possession after preparing the recovery memo. One
E
gandasa and an empty cartridge of 12 bore were found lying
near the dead body. The gandasa and the empty cartridge were
also taken into possession. The Investigating Officer prepared
visual site plan of the place of occurrence with marginal notes.
Gurdish Singh and Gurdev Singh's injury statements were also
F
prepared and sent for medico legal examination.
7. Dr. Mukesh Gupta PW4 conducted post-mortem
examination on the dead body of Gurcharan Singh on
15.7.1991 at 4.30 p.m. On the same day at 5.50 p.m. Dr. Gupta
G
also conducted medico legal examination of Gurdev Singh and
found one abrasion on his left thigh. Dr. Gupta found a
superficial abrasion on Gurdish Singh on his elbow. Darshan
Singh and Bakhtawar Singh were arrested on 28.7.1991. The
factum of the incident has not been denied by the accused and
H
654
SUPREME COURT REPORTS
[2010] 1 S.C.R.
A they claimed right of private defence.
8. According to the prosecution, the motive of the crime
was dispute regarding partition of land between both brothers
Bakhtawar Singh and Gurcharan Singh. One year prior to the
8
present incident, the village Panchayat had got the dispute
compromised by a written agreement. There was a common
well situated in the adjoining land. As a result of the
compromise, the well along with a small piece of land attached
to it was given to Gurcharan Singh and the land of common
C pathway leading to the well was given to the accused party. The
compromise was not accepted by the accused party and they
wanted repartition of the land attached to the well. This
grievance led to this unfortunate incident.
9. The prosecution examined 11 witnesses. Dr. Mukesh
D Gupta, PW4 who conducted the post-mortem examination
found the following injuries on the dead body of Gurcharan
Singh:-
E
F
G
H
"1.
There were 14 wounds in an area of 20 cm x 18
cm on left side of the chest above the nipple. One
of the wounds which was above the nipple was
having inverted margins. A wad was recovered
from this wound. This wound was 1cmx1 cm. The
9 wounds which measured 0.75 cm x 0.75 cm which
were on the chest and shoulder also had inverted
margins. Out of these wounds 6 were found to
entering chest cavity and 6 pellets were recovered
from the chest cavity. The remaining 3 wounds were
having everted margins. These were near the axilla
and each wound measured 1 cm x 1 cm. One of
the 14 wounds which measured 0.75 cm x 1.5 cm
was having inverted margins. It was skin deep and
was on the shoulder, upper part·of humerous and
clavicle bones were found to be fractured. 4th and
5th rib of the left side of the chest were also found
to be fractured.
DARSHAN SINGH v. STATE OF PUNJAB & ANR.
655
[DALVEER BHANDARI, J ]
2.
There were 7 wounds in an area of 20 cm x 8 cm
A
on the upper part of the chest on its right side above
the nipple. Out of these wounds 3 wounds
measuring 0. 75 cm x 1 cm each was having
inverted margins, these were skin deep. 2 wounds
were having everted margins having a dimension
B
of 1 x 1 cm each near the axilla. A pellet was
recovered from near the axilla. The remaining 2
wounds were near the top of right shoulder
measuring 0. 75 x 1.5 cm each with inverted
margins. These were skin deep.
c
3.
An incised wound 8 cm x 0.5 cm skin deep on the
left side of chest 3 cm above the nipple. It was
horizontally placed."
10. Dr. Mukesh Gupta found following injury on the person
D
of Gurdev Singh:-
"An abrasion measuring 1 cm x 0.5 cm on the front and
inner side of left thigh. It was a superficial abrasion reddish
in colour, over the junction of upper 1 l3rd and lower 2/3rd
E
of the thigh. There was damage to the pajama
corresponding to the injury."
11. According to the doctor, the injury was simple in nature
and was caused within 24 hours. Doctor also found injury on
Gurdish Singh to be superficial. The same reads as under:-
F
"A very superficial abrasion 1 cm x 0.5 cm on the upper
side of left '1.!PPer arm 12 cm above the elbow. It was
reddish in col0ur."
12. It may be relevant to mention that Dr. M.S. Gill, PW5,
G
who conducted the medical examination of Bakhtawar Singh
found the following injuries on his person:-
"1. An incised wound 7 cm x 0.5 cm on the parietal region
of the right side of head. It was placed anterior posteriorly.
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A
The wound was bone deep and 4 cm above the right pinna.
Clotted blood was present."
13. According to doctor. this injury was caused by sharpedged weapons.
B
14. Both Gurdish Singh, PW? and Gurdev Singh, PW8 are
the eye-witnesses who gave detailed description of the
occurrence. After examining the prosecution evidence, the
following statements of Darshan Singh and Bakhtawar Singh
were recorded under section 313 Cr. P.C .. The relevant portion
C of the statement of Darshan Singh reads as under:-
D
E
F
G
H
"! am innocent. In fact the complainant party had gone back
from the agreement got effected by the Panchayat one year
prior to the occurrence. In accordance with the said
compromise we had ploughed the land which was earlier
under common pathway. One day prior to the occurrence
we had irrigated that portion of the land. On the day of
occurrence when we went to the fields, Gurcharan Singh
(deceased) along with 3-4 outsiders came to our field and
remarked that we would be taught a lesson for irrigating
the land. Immediately thereafter 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. Gurcharan
Singh fell to the ground and his companions took to their
heels. I then took Bakhtawar Singh in injured condition to
Govt. hospital, Sudhar. Police came to the hospital at about
5 p.m. We were kept under guard and brought to the police
station on the next day after getting my father discharged.
We have been falsely implicated in this case.
Bakhtawar Singh (accused) pleaded as under:-
"! am innocent. It was the complainant party who had
DARSHAN SINGH v. STATE OF PUNJAB & ANR.
657
[DALVEER BHANDARI, J.]
resiled from the compromise got effected by Panehayat
A
about a year before the occurrence. We had ploughed the
land which had fallen to our share and one day prior to the
occurrence we had irrigated the same. On the day of
occurrence when we went to the fields Gurcharan Singh
(deceased) along with 3-4 outsiders came to our field and
B
remarked that we would be taught a lesson for irrigating
the land. Immediately thereafter Gurcharan Singh gave a
gandasa blow on my head as a result of which I fell down.
Gurcharan Singh then advanced towards Darshan Singh
holding his gandasa whereupon Darshan Singh fired a c
shot from his gun. I was taken to Government hospital,
Sudhar by Darshan Singh. Police came there on the same
day at about 5 p.m. and to9k us to the police station after
getting me discharged. I have been falsely involved in this
case."
15. According to the verslans of the accused Darshan
Singh and Bakhtawar Singh, Gurcharan first gave Gandasa
blow hitting Bakhtawar Singh on the head and the injury caused
on Bakhtawar Singh was an inQi§ed wound of 7 cm x 0.5 cm.
D
on the parietal region of the right @Ide of head. The wound was
E
bone deep and 4 cm above the right pinna and clotted blood
was present and after receiving these injuries in order to save
himself, Darshan Singh fired at Qurcharan Singh and as a result
of which he died. According to the accused, the entire act is
covered by the right of privat@ defence. According to the
F
prosecution, Bakhtawar Singh gave first injury on the chest of
Gurcharan Singh whereas according to the defence the first
Injury was given by Gurcharan Singh to Bakhtawar Singh. The
appellant Darshan Singh fired only after the serious incised
wound by a Gandasa was inflicted on his father Bakhtawar
G
Singh and at that time in order to 5ave his life he fired 2 shots
which hit the deceased Gurcharan Singh leading to his death.
16. The point for determination is the place where the
unfortunate incident had taken place. According to Bhupinder
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SUPREME COURT REPORTS
[2010] 1 S.C.R.
A Singh Patwari, PW3, point 'A' in site plan Ex.PC denotes the
place where the dead body of Gurcharan Singh was said to
be lying and this point is in Khasra No.10. He further testified
that accused Bakhtawar Singh was recorded in cultivating
possession of Khasra No.10. According to the finding of the
a trial court, it clearly shows that Bakhtawar Singh was in
possession of Khasra No.10. According to Bhupinder Singh
Patwari, Point 'E' is in Khasra No.10 from where Darshan
Singh had allegedly fired at Gurcharan Singh. According to the
site plan prepared by Bhupinder Singh Patwari, Point 'F' is the
c place where the dispute took place with Bakhtawar Singh.
According to the Patwari, this point 'F' is in Khasra No.10 at a
distance of 5 karms which is equivalent to 27.5 feet from the
aforesaid pathway and point 'A' is at a distance of 7 karms
from point 'F'. Thus, from this evidence it is evident that the
0 occurrence took place inside Khasra No.10 which was in
possession of Bakhtawar Singh accused. Gurcharan Singh
covered a distance of about 7 karms which is equivalent to 37.5
feet.
17. The trial court came to the conclusion that the presence
E of Gurdev Singh and Gurdish Singh at the time of alleged
occurrence is highly doubtful. Dr. Mukesh Gupta also stated that
injuries on the person of Gurdev Singh and Gurdish Singh could
be caused by friendly hands and can be self suffered. He further
stated in the cross examination that duration of the injuries was
F less than 6 hours. As per the prosecution case, the injuries were
allegedly rec.. ived by them at about 8 a.m. No pellet was
recovered from the injuries of these witnesses namely, Gurdev
Singh and Gurdish Singh. According to the trial court, the
possibility of these injuries on their person having been
G fabricated at a later stage cannot be ruled out. The trial court
also held that there was no mention of the injuries received by
Gurdish Singh and Gurdev Singh in the inquest report whereas
this fact finds mention in the first information report. According
to the prosecution, Gurdish Singh suffered pellet injury on the
H left upper arm whereas, Gurdev Singh was hit on his left thigh.
DARSHAN SINGH v. STATE OF PUNJAB & ANk.
659
[OALVEER BHJ>.NDARI, J.]
If it was so, there would have been mention of this f1,3ct in the
A
inquest report or the investigating officer must have prepared
their injury statement, but neither any such injury statement was
prepared at the spot nor their medical-examination was carried
out. Om Prakash, ASI, in his cross-examination has admitted
that he came to know about the injuries of Gurdish Singh and
B
Gurdev Singh only when they gave their supplementary
statements at the bus stand. According to the findings of the
trial court, their injury statement was prepared at the spot and
they were medically examined by Dr. Mukesh Gupta. Thus,
according to the trial court the injuries were fabricated with c
connivance with the investigating officer just in order to make
Gurdish Singh and Gurdev Singh stamp witnesses.
18. The trial court after discussing the entire evidence
came to the conclusion that two counter versions of the case
have been presented and, in the view of the trial court, the
D
defence version is more probable and nearer to the truth for
the following reasons:
(i)
The delay in lodging the FIR impells the court to
scrutinize the evidence of witnesses regarding the
E
actual occurrence with greater care and caution.
(ii)
The crucial point to be decided in this case was that
who was the aggressor or which of the parties can
have the motive to open the attack?
.
The trial court held that "if the accused were already
cultivating the land as per compromise, then it does
F
not appeal to reason as to why they would feel
aggrieved. On the other hand there was strong
motive for Gurcharan Singh to assault the accused
G
person as he has resiled from the compromise."
(iii)
The next crucial point according to the trial court
was as to where the incident took place? According
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[201 OJ 1 S.C.R.
to the trial court the incident had taken place in the
field of the accused.
(iv)
According to the trial court, the presence of the
prosecution witnesses Gurdev Singh and Gurdish
Singh at the time of alleged occurrence is highly
doubtful. Dr. Mukesh Gupta stated that the injuries
on Gurdev Singh and Gurdish Singh could be
caused by friendly hands and can be self suffered.
(v)
No pellet was recovered from the injuries of the
C
prosecution witnesses namely, Gurdev Singh and
Gurdish Singh. The possibility of the injuries on their
persons having been fabricated at a later stage
cannot be ruled out.
D
E
F
G
H
The trial court found that, in the instant case, it
appeared that the inquest report was prepared first
and the FIR was prepared at some later stage
because there was no mention about the injuries of
Gurdev Singh and Gurdish Singh in the inquest
report, whereas this fact is mentioned ln the FIR.
According to Hie prosecution case, Gurdlsh Singh
suffered a pellet injury on his left upper arm
whereas, Gurdev Singh was hit on his left thigh. This
was so mentioned in the FIR. If it was so, this fact
would have been mentioned in the inquest report
or the Investigating Officer ll'\USt have prepared their
injury statement, but no such injury statement was
prepared at the spot nor their medical examination
was got done.
In the cross-examination, Om Prakash ASI had
admitted that he came to know about the Injuries
of Gurdish Singh and Gurdev Singh only when they
gave their supplementary statements at the bus
stand. The finding of the trial court is that the injuries
were fabricated with the connivance of the
DARSHAN SINGH v. STATE OF PUNJAB & ANR.
661
[DALVEER BHANDARI, J.]
Investigating Officer just in order to make Gurdlsh A
Singh and Gurdev Singh stamp witnesses.
(vi)
Gurdish Singh P.W.7 had admitted that his father
Gurcharan Singh was face to face when Bakhtawat
Singh gave Gandasa blow from above to downward a
vertically on the chest of Gurcharan Singh. However,
Dr. Mukesh Gupta contradicted him and stated Lnat
injury no.3 on the person of Gurcharan Singh was
skin deep and was horizontally placed and was
possible by a fall on a sharp edged weapon. From c
this it can safely be concluded that it was not
Bakhtawar Singh who gave Gandasa blow to
Gurcharan, Singh in the manner as suggested by
the prosec'ution. It is most likely that Gurcharan
Singh suffered injury no. 3 by a fall on his own
D
Gandasa and this was the reason that the wound
was only skin deep. The story put forth by the
prosecution that Gurcharan Singh was cutting
weeds of ridges with Gandasa is not believable.
Gurdish Singh stated that he was collecting the cut
weeds. They were not having any Kassi or Khurpa E
and it was not possible to cut weeds of ridges with
Gandasa.
(vii) The trial court came to a clear conclusion that
Bakhtawar Singh was injured at point 'F' as shown
F
in the site plan at the hands of Gurcharan Singh
(deceased). Gurcharan Singh after causing that
injury forwarded towards Darshan Singh armed with
Gandasa and at that point Darshan Singh had no
option but to open fire and Gurcharan Singh died G
of that fire<;rm injury. The trial court came to the
definite conclusion that Darshan Singh fired a shot
in his right of private defence.
(viii) The trial court after marshalling the entire evidence
came to the conclusion that seeing from all angles,
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SUPREME COURT REPORTS
[2010] 1 S.C.R.
the probabilities of the case are much more in
favour of the defence than in favour of the
prosecution. The possibility of the injuries having
been caused to Gurcharan Singh by Darshan Singh
in exercise of private defence cannot be ruled out.
Thus, the prosecution has failed to prove its case
against the accused person beyond any
reasonable doubt and the benefit has to be given
to them.
19. We deem it appropriate to briefly discuss the principle
C
of right of private defence and how the courts have crystallized
this principle in some important judgments.
D
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20. Relevant provisions dealing with the right of private
defence are sections 96 and 97 of the Indian Penal Code.
"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 defendFirst.- His own body, and the body of any other
person, against any offence affecting the human body;
Secondly.- The property, whether moveable or
immoveable, 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."
21. Section 100 of the Indian Penal Code is extracted as
under:
H
"100. When the right of private defence of the body
DARSHAN SINGH v. STATE OF PUNJAB & ANR.
663
[DALVEER BHANDARI, J.]
extends to causing death. -- The right of private defence A
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: --
B
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 C
apprehension that grievous hurt will otherwise b~ the
consequence of such assault;
Thirdly. -- An assault with the intention of committing rape;
Fourthly. -- An assault with the intention of gratifying D
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."
E
22. Section 100 of the Indian Penal Code justifies the
F
killing of an assailant when apprehension of atrocious crime
enumerated in several clauses of the section is shown to exist.
First clause of Section 100 applies to cases where there is
reasonable apprehension of death while second clause is
attracted where a person has a genuine apprehension that his G
adversary is going to attack him and he reasonably believes
that the attack will result in a grievous hurt. In that event he can
go to the extent of causing the latter's death in the exercise of
the right of private defence even though the latter may not have
inflicted any blow or injury on him.
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[2010] 1 S.C.R
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23. It is settled position of law that in order to justify the
act of causing death of the assailant, the accused has simply
to satisfy the court that he was faced with an assault which
caused a reasonable apprehension of death or grievous hurt.
The question whether the apprehension was reasonable or not
B
is a question of fact depending upon the facts and
circumstances of each case and no strait-jacket formula can
be prescribed in this regard. The weapon used, the manner and
nature of assault and other surrounding circumstances should
be taken into account while evaluating whether the
c apprehension was justified or not?
D
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SCOPE AND FOUNDATION OF THE PRIVATE DEFENCE
24. The rule as to the right ofprivate defence has been
stated by Russel on Crime (11th Edn., Vol.1, p.491) thus:
" .....