# [1963] 3 S.C.R. 678

- **Citation:** [1963] 3 S.C.R. 678
- **Court:** Supreme Court of India
- **Decided:** 1963
- **Bench:** Jafar Imam, J.C. S:Q:Ah, R. MUDHOl.1Ll.R
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1963-3-s-c-r-678-2659
- **Pages:** 9

## Headnote

Criminal Trial-Murder-Prosecution evidence discardea-Convictwn on statement of accusea....:.statement pertly
exculpatory and partly inculpatory-lf must. be used as a
whole-,--Code of Criminal Procedure, 1898(Act V of 1898),
•• 342.
The appellant and three others were charged with
the murder of B. The prosecution case was that there
was a dispute between B and the accused over diverting
the flow of water in the fields, that the appellant armed
with a stick and the others with spear, kaholi and salang
assaulted B and B died of the injuries infliced. In his state·
ment under s. 342 Code of Criminal Procedure the appelant stated that B had thrown him on the i:round and had -
"'""-.
9 S.d.R.
St:tPR:EME dOURT REPORTS
attempted to strangulate him whereupon the took out his
kirpan and struck B in self defence. The Sessions Judge
disbelieved the prosecution evidence and acquitted the
three other accused persons ; but he convicted the appellant
under s.304 Part II Indian Penal Code relying on a part of
his statement in which he admitted having strick blows but
rejecting the part that B attempted to strangulate him. He held
that the only apprehension which the appellant could 'have
was of simple hurt which did not give him the right to eause
the death of B. On appeal the High Court confirmed the
conviction.
Held, that the conviction of the. appellant under s.304
Part II Indian Penal Code could not stand. In convicting
the appellant the courts l>elow had accepted a case which
was not the case of the prosecution but had relied only upon
a part of the statement of the appellant made in his qefence.
It was not open to the courts to dissect the statement and
to pick o•lt the incriminating part and. to reject the excul·
patory part on the ground that it was not supported by
evidence. If in his statement the accused confesses to the
commission of the offence charged he may be oonvicted upon
that confession, but if he does not confess and sets up his own
version and seeks to explain his conduct pleading that he has
committed no offence, the statement can only be taken into
consideration in its entirety.
Taking the statement ot the
appellant in its entirety, he had an apprehension that i
w.as
attempting to strangulate him and this gave him the right of
defence of person extending even to causing the death of the
assailant.
CRIMINAL APPELLATE JurusnroTlON: Criminal
Appeal No. 218 of 1959.
Appeal by special leave from the .Tudgm.ent
and order dated September 8, 1959, of the Punjab
High Court in Criminal Appeal No.354 of 1969.
Frank .Anthony, K. 0. Agarwala and P. O.
Agarwala for the appellant.
R. K. Khanna and P. D. Menon,
for the
respondent.
1962. August 21. The Judgment of the Court
was delivered by
1963
Narain Sinifi
••
Stah of PfifljJJb
. 1901
JV ar"ain s ingl~
....
·. v . .
~tati t>j Pun}ab
$heh J.
680
SUPREME COURT REPORTS Ll963]
SHAH, J.--After arguments were concluded. in '
·this appeal we ordered that the appellant Narain
t)ingh be acquitted of the offence under s. 304 Part
II of the Indian Penal Code of which he wag
convicted and the sentence passed on him be set
as1qe.
We proceed to set
out our reasons in
support of ~he order.
Narain Singh and bis three nephews-Mebar
Singh, Mewa Singh and Pakhar Singh-were tried
before the Court of Session, Ludhiana for offences
punishable under s. 302 read with s. 34 of the
Indian Penal Code, on the charge that on October
31, 1958, they had in furtherance of their common
intention caused the death of one Bachan Singh by
making a murderous assault on him.
'
The prosecution case was that in the evening
of October 31, 1958, when Narain Singh and his
three nephews were irr.igating their field, Bachan
Singh diverted the flow of water into hiS own filed.
Narain Singh
and bis nephews were thereupon
enraged, and there was a quarrel between them
and' Bachan Singh.
Narain Singh and his nephews
'·
made an attack upon Bachan Singh and caused him
serious injuries. According to the prosecution,
.Mehar Singh at the t

## Text

1962 --
1'·aliOnal lion dJ
' SIL_n Co.Lid •
••
Th4ir Workmm
' Mudhcliar J.
1982
6,8
SUPREME COURT REPORTS'[1963j
discontent, which is
something which must be
avoided in the interest of the industry as well as
the workmen.
For the reasons stated above we quash the
award ill so far as it relates to the fixation of
targets in the various departments of the appellent,
fixation of rate of incentive bonus for time-rate
workmen as well as piece·mte workmen and
extension of the scheme to non-productive departments and remand the dispute to the Tribunal for
adjudication after appointing assessors, considering
all relevant material placed before it by the parties
to the dispute and make a fresh award in the light
of our observations. The rest of the award is
affirmed.
There will be no order as to costs in this appeal.
Appeal allowed case nmanded in part.
NARAIN SINGH
v.
STATE OF PUNJAI:
(JAFAR IMAM, J.C. S:Q:AH and J,R. MUDHOl.1Ll.R, JJ.)
Criminal Trial-Murder-Prosecution evidence discardea-Convictwn on statement of accusea....:.statement pertly
exculpatory and partly inculpatory-lf must. be used as a
whole-,--Code of Criminal Procedure, 1898(Act V of 1898),
•• 342.
The appellant and three others were charged with
the murder of B. The prosecution case was that there
was a dispute between B and the accused over diverting
the flow of water in the fields, that the appellant armed
with a stick and the others with spear, kaholi and salang
assaulted B and B died of the injuries infliced. In his state·
ment under s. 342 Code of Criminal Procedure the appelant stated that B had thrown him on the i:round and had -
"'""-.
9 S.d.R.
St:tPR:EME dOURT REPORTS
attempted to strangulate him whereupon the took out his
kirpan and struck B in self defence. The Sessions Judge
disbelieved the prosecution evidence and acquitted the
three other accused persons ; but he convicted the appellant
under s.304 Part II Indian Penal Code relying on a part of
his statement in which he admitted having strick blows but
rejecting the part that B attempted to strangulate him. He held
that the only apprehension which the appellant could 'have
was of simple hurt which did not give him the right to eause
the death of B. On appeal the High Court confirmed the
conviction.
Held, that the conviction of the. appellant under s.304
Part II Indian Penal Code could not stand. In convicting
the appellant the courts l>elow had accepted a case which
was not the case of the prosecution but had relied only upon
a part of the statement of the appellant made in his qefence.
It was not open to the courts to dissect the statement and
to pick o•lt the incriminating part and. to reject the excul·
patory part on the ground that it was not supported by
evidence. If in his statement the accused confesses to the
commission of the offence charged he may be oonvicted upon
that confession, but if he does not confess and sets up his own
version and seeks to explain his conduct pleading that he has
committed no offence, the statement can only be taken into
consideration in its entirety.
Taking the statement ot the
appellant in its entirety, he had an apprehension that i
w.as
attempting to strangulate him and this gave him the right of
defence of person extending even to causing the death of the
assailant.
CRIMINAL APPELLATE JurusnroTlON: Criminal
Appeal No. 218 of 1959.
Appeal by special leave from the .Tudgm.ent
and order dated September 8, 1959, of the Punjab
High Court in Criminal Appeal No.354 of 1969.
Frank .Anthony, K. 0. Agarwala and P. O.
Agarwala for the appellant.
R. K. Khanna and P. D. Menon,
for the
respondent.
1962. August 21. The Judgment of the Court
was delivered by
1963
Narain Sinifi
••
Stah of PfifljJJb
. 1901
JV ar"ain s ingl~
....
·. v . .
~tati t>j Pun}ab
$heh J.
680
SUPREME COURT REPORTS Ll963]
SHAH, J.--After arguments were concluded. in '
·this appeal we ordered that the appellant Narain
t)ingh be acquitted of the offence under s. 304 Part
II of the Indian Penal Code of which he wag
convicted and the sentence passed on him be set
as1qe.
We proceed to set
out our reasons in
support of ~he order.
Narain Singh and bis three nephews-Mebar
Singh, Mewa Singh and Pakhar Singh-were tried
before the Court of Session, Ludhiana for offences
punishable under s. 302 read with s. 34 of the
Indian Penal Code, on the charge that on October
31, 1958, they had in furtherance of their common
intention caused the death of one Bachan Singh by
making a murderous assault on him.
'
The prosecution case was that in the evening
of October 31, 1958, when Narain Singh and his
three nephews were irr.igating their field, Bachan
Singh diverted the flow of water into hiS own filed.
Narain Singh
and bis nephews were thereupon
enraged, and there was a quarrel between them
and' Bachan Singh.
Narain Singh and his nephews
'·
made an attack upon Bachan Singh and caused him
serious injuries. According to the prosecution,
.Mehar Singh at the time of the assault was armed
with a spear, Pakhar Singh with a Kaholi, Mewa
Singh with a salang and Narain Singh with a stick.
A complaint was lodged about the assault with
the police, and Bachan Singh was removed to the
Civil Hospital, Ludhiana. The Sub-Inspector of
Police investigating the caee recorded the statement
of Bachan Singh, and a First Class Magistrate of
Ludhiana recorded his declaration on the evening
of November 2, 1958.
Bachan Singh died on
November 3, 1958.
Narain Singh and. his nephwes were then
prosecuted · before the Court of Session Ludhiana
for the offence of murder.
At the trial, Narain
.,
3 S.C.R.
SUPREME CJ9URT REPORTS
681
Singh pleaded that he bad acted in exercise of the
right of self.defence and had caused injuries to
Bachan Singh because the latter had thrown him
down and had attempted to strangulate him. His
statement in the Court of Session, on which he
was convicted, was as follows :-
"The correct facts are that whfln I
objected to the "deceased cutting the nakka
he caught holtl of me and threw me on the
ground. I was alone at the time. The other
three co-accused were not with me. After
I had fallep.
on the ground the deceased
attempted to strangulate me.
I was then
wearing small kirpan. I unsheathed it and used
it in self defence.causing a couple of injuries to
the deceased on the alarm raised by me,
Meha.r Singh
(my co-accused)
who was
coming from the khal nearby, came to the
spot and rescued me. He was armless and
did not cause any injury to the deceased. I
did not carry any stick but was wearing a
. small kirpan as usual,"
Pakhar .Singh and Mewa Singh denied their presence
at the scene of offence. Mehar Singh claimed that
he was present at the scene, and he had tried to intervene and 11eparate Bachan Singh and N arai!J Singh~
Narain Singh and Mehar Singh relied upon the
circumstance that they also had injuries on their
person whioh were noticed when they were medically examined. Narain Singh had six contused
injuries and Mehr Singh had one incised injury and
four abraded contusions. Before the
Court of
Session,, Jagir Singh-a. witness for the prosecution
ma.de important variations in his story as originally
related by him in his complaint at the police
station. Kaka, who, it was claimed by the prosecution, was an eye-witness, did not support the case
" for the prosecution. Hakku, another witness, was
~
1961
Narain Sinth
v.
8tat1 of Punjab
Shah J.
1961
N<Jf'ain Singh
v.
Btate of Punjab
Sho,h J.
682
SUPREME COURT REPORTS [1963]
not examined by the proseoutor, but' was merely
"tendered
for
cross·examina ti on".
One
J ohri
whose name was not mentioned in the complaint
was also examined by the prosecutor. Two statements of Bachan Singh ·which were in view of his
death admissible as dying declarations-one recorded
by the Investigating Officer and the other by the
First Class Magistrate, Ludhiana-were also tendered
in evidence. 'l'he Sessions J uiJge held that the
evidence of J agir Singh was unreliable and 1 hat
Johri could not have witnessed the assault. The
two dying declarations were, in the view of the
Judge, unreliable, for Bachan Singh had before he
made the statements ample opportunity to know
how the investigation was proceeding, had consulted
Jagir Singh and had opporunity of discussing with
him the case to be set up. Again, the story set up
in the dying declarations furnished no explanation
of the injuries received by Narain Singh and Mehar
Singh.
The medical evidence was also not helpful
to the case for the prosecution, Bachan Singh had
four incised injuries on his person, three on the
ches~ and the fourth on the "ring finger left side".
·None of these injuries could be caused with a salang
or a kaholi: the incised injuries could be caused by
a spear and also by a kirpan. Therefore in the
yiew of the Sessions Judge the oral and other
evidence was insufficient to sustain the charge of
murder against the three nephews of Narain Singh.
Relying, however, upon the statement . made by
Na.rain
Singh he held that the injuries on the
person of Bachan Singh were caused by the former.
He observed that the marks of injuries on· the
person of Narain Singh «bore out his suggestion
that B11cha.n Singh had obtained strong hold upon
him with a view to strangulate him". But there
was not •an iota ·of evidence on the record to
proTe that Bachan Singh had attempted to strangulate him". In the view of the Sessions Judge •
•
.•
•
~
3 S.C.R.
SUPREME COURT REPORTS .
6S3
there being no marks of injury, however slight,
around the throat of Narain Singh and that he had
not made a complaint to the medioal officer who
had examined him shortly after the assault "it
was apparent that Narain Singh could have no
apprehension
·of
death
or
grievous
hurt •
•
x
x
x
x .
The only apprehension which Narain Ringh hall
was simple hurt and this certainly gave him no
right to take the life of Bachan ~!ingh." The
Sesaions Judge, therefore, held that Narain Singh
was justifierl in resisting Bachan Si 'lgh in exerriise
of the right of defence of person, but was not
justified in using "the kirpan in suoh a. mannAr and
with such-force as to ca.use the death of B>tch11on
Singh by piercing one of bis bnirs". The SeRsions
Jurlge aooordinglv a.oquitted Mewa ~ingh, M,,har
Singh and Pakhar · Simth of the off,,nne ohargAd
and convicted Narain Singh of the offence punishable under s. 304 Part II of thf'I Indian Penal f'ode
11.nd sentenced him to suffer rigorous imprisonment
for five years.
Against the order of conviction and sent,,nce
Narain Singh preferred 1tn appeal to the Hi!!h
Court of Punjab. The High Court agreed - with
the view of the Sessions Court that the evidAnce
was insufficient to Astablish the case for the nrosecution, the High Court also hAld that the SeRRions
Court was iustified in relvfng upon the st1ttAmAnt
made by Na.rain Singh under s.:l42 of th,, C0rle of ·
Criminal Procedure ancl in holding t.h1tt N1train
Singh "had excep,ded thA riirht of s1>lf-defence" and
by causing the death of B>tch1tn Singh hv stabhing
him with a kirpan, had committed an offnnce p11nishablA under s.304 part 1 I Indian Penal Code. The
, li' High Court, however, reduced the sentence imnoseid
upon Narain "ingh to rigorouR imprisonment fnr 3
years and subject to that modification dismissed the
1968
·Narain Singh
••
Stat, of PUllJ<U
ShahJ.
I'
. I
1911
Narain Sin1A
••
I
lit''' of Punjo6
Slw.h J.
684
SUPREME COURT REPORTS [1963]
appeal against the order of conviction and sentence.
With special leave Nara.in Singh had appealed to
this Court .
The case for the prosecution was that Naraiu
Singh, when he participated in the assault on
Bachan Singh, .was armed with a stick, but the
evidence of the witnesses about the assault on
Bachan Singh has not been accepted by the Court
of Session and the High Court. In the view oi' the
Courts injuries on the person of Bachan Singh were
caused by Narain Singh by striking him with a
kirpan, and the three nephews of Narain Singh had
not participated in the assault. In finding Narain
Singh guilty of the offence under s.304 Part II for
causing injuries to tlie victim Bachan Singh with a
kirpan the Court of Sessi_on and the High Court have
accepted a case whioh was not the case of the prosecution, but have relied only upon the statement
Na.rain Singh made in his defence. Under s.342 of
the Code of Criminal Procedure by the first subsection, insofar as it is meterial, the Court may at
any stage of the enquiry or trial and after the
witnesses for the prosecution have been examined
and before the accused is called upon for his defence shall pu~ questions to the accused person for the .
purpose of enabling him to explain any oiroumstance appearing in the evidence aga.inst him.
Examination under s. 342 is primarily to be directed to
those matters on which evidence has been led for
the prosecution to ascertain from the accused hi1
version or explanation-if any, of the incident which
forms the subject-matter of the charge and his
defence. By .sub-s. (3 J, the answers given by the
accused may "be taken into consideration" at the
enquiry or the trial. If the accused person . in hi1
examination under s.342 confesses to the commission of the offence charged against him the court
may, relying upon that confession, proceed to
convl~\ him, but if he does not confess and in
'r -
•
3 S.C.R.
SUPREME COURT REPORTS
685
explaining circumstance appearing in the evidence
again~t him sets up his own version and seeks to
explain his conduct pleading that he has committed.
no offence, the statement of the accused can only
be taken into consideration in its entirety. n is
not open to the Court to dissect the statement and
to pick out a part of the statement which may be
incriminative, and then to examine whether the
explanation furnished by the accused for his conduct is supported by the evidence. on the record. If
the accused admits to have done an act which
would but for the explanation furnished by him
be an offence, the admission cannot be used against
him divorced from the explanation.
The courts below were of the view that th~·
prosecution evidence as it stood, was insufficient to
bring home the charge against Narain Singh and
his nephews. The case for the prosecution that
Narain Singh was armed with a stick and joined in
the asl'!ault upon Bachan Singh· was sought to be
established by affirmative evidence. The c 1se failed
because the evidence in support of the case was
unreliable. ·Narain Singh admitted that he had
caused injuries to Bachan Singh with a Kirpan
carried by him, but he explained that he caused the
injuries when he was thrown down and Bachan
Singh was attempting to strangulate him. There
can be no doubt that if a person reasonably apprehends that his assailant is attemptin~ to strangulate
him, exercise of the right of defence of person
extends even to causing death of the assailant.
Narain 8ingh pleaded that he had fallen down and
Bachan Singh attempted to strangulate him and
therefore he caused1 injuries to Bachan Singh in
exercise of the right of self defence. This plea had
to be considered as a composite plea: it was not
open the court to inve~tigate whether Narain Singh
could have reasonably apprehended such injury to
1962
N ttrain Singh
...
Sl1te •f PtJnju&
81r4h J.
1961
Nar 1in Singh
••
Slate of Punjab
Shah J.
686
SUPREME COURT REPORTS [1963]
himself as justified him in causing the death of
Bach1.n Singh, Where a person accusad of committing an offenoe sets up at his trial a plea that he. is
protected by one of the exceptions, general or
special, in the Indian Penal Code, or any other law
defining the offence the burden of proving the
exoeption undoubtedly lies upon him.
But this
burden is only undertaken by the accused if the
proseoution case establishes that in the absence of
such a plea he would be guilty of the offence charged. The prosecution case, however, did not by
reliable evidence establish affirmatively that Narain
Singh had dime any act which rendered him liable for
the offence of murder. His responsibility, if any,
arose only out of the plea raised by him: if the plea
amounted to a confession of guilt the court could
convict him relying upon that plea, but if it amounted to admission of facts and raised a plea of justifiction, the court could not proceed to deal with
the case as if the admission of facts wich were · not
part of the prosecution oase was true, and the
evidence did not warrant the plea of justification.
The courts below were, therefor~; in our judg
ment, in error in convicting Narain Singh of th·e
offence under s.304 Part II of the Indian J:'enal
Code.
Appeal allowed ••
'