# SATYA NARAIN YADAV v. GAJANAND AND ANR

- **Citation:** [2008] 11 S.C.R. 607
- **Court:** Supreme Court of India
- **Decided:** 2008-08-01
- **Case number:** Criminal Appeal No. 305 of 2001
- **Bench:** Dr. Arijit Pasayat, Dr. Mukundakam Sharma
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/satya-narain-yadav-v-gajanand-and-anr-23410
- **Pages:** 35

## Headnote

Penal Code, 1860; Ss.96-106; S.302 r/w s.149/Evidence
A
B
Act, 1872; s. 105:
C
Assault and murder- Exercise of right of private defence
- Trial Court convicted accused for committing offence punishable under s. 302 /PC and sentenced to life imprisonment
- Reversed by High Court accepting the stand of accused
that blows given by him were in exercise of right of private deD
fence - Correctness of - Held: Correct - No doubt, an accused has profound right not to be convicted for an offence
which is not established by evidential standard of proof beyond reasonable doubt - Doubts are reasonable if they are
free from a zest for abstract speculation - Law can not afford E
any favourite other than truth - While protection given by criminal process to accused not to be eroded, at the same time,
uninformed legitimation of trivialities would make mockery of
criminal justice - On facts, the High Court has rightly held that
the accused, in exercise of right of private defence, inflicted F
injuries on the deceased - Right of private defence - Exercise of
Code of Criminal Procedure, 1973 - Section 378 - Appeal against acquittal - Ingredients - Discussed.
Evidence:
G
-,.
Acquittal - Presumption in favour of accused - Dis-
..J
cussed.
607
H
'·
~
608
SUPREME COURT REPORTS
[2008] 11 S.C.R.
--f
...
A
Power of appellate Court/High Court - Held: No restric-
£.
tion has been imposed by the legislature in dealing with ap-
"':"
peal against acquittal - High Court has full power to re-appre-
'
ciate, review and re-consider the evidence at large and the
material on which order of acquittal is founded to reach its
B conclusion - Both questions of fact and of law are open to
~
determination by the High Court.
According to the prosecution, on the fateful day,
·~
when PW-13-the informant along with his brother, the
~
deceased, was working in the field, accused-respondent
p
c No.1 and others attacked his brother on his head, as a
..
"'
result of which he got injured and later succumbed to the
injuries. An FIR was lodged in the Police Station. After
completion of the investigation, charge-sheet was filed
by the Police against the accused for committing the of-
)
0
fence punishable u/s.302 IPC. Trial Court found the accused guilty of committing the murder of brother of the
}.. ,.
informant and sentenced him to undergo rigorous imprisonment for life. The High Court accepting the stand of the
i>
accused that he gave blows on the deceased in exercise
E of right of private defence acquitted him. Hence the
present appeals.
..
Appellant-informant contended that the trial Court
has erroneously held that the accused were exercising
the right of private defence.
F
~
Respondent No.1 submitted that when injury was
caused by lathi not only on the accomplice of 'G' but also
to 'G' - respondent, it cannot be said that they were not
exercising the right of private defence.
G
Dismissing the appeal, the Court
HELD: 1.1 Section 96 IPC does not define the expres-
-(
sion 'right of private defence'. It merely indicates that nothing is an offence which is done in the exercise of such right.
•
H Whether in a particular set of circumstances, a person legiti··
)
t
SATYA NARAIN YADAV v. GAJANAND &ANR.
609
~
mately acted in the exercise of the right of private defence is
A
..
a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this
question of fact, the Court must consider all the surrounding circumstances. (Para - 9) [917-G-H; 918-A-B]
B
1.2 Under Section 105 of the Indian Evidence Act,
1872, the burden of proof is on the accused, who sets up
the plea of self-defence, and, in the absence of proof, it is
'
not possible for the Court to presume the truth of the plea
,.
1
of self-defence. The Court shall presume the absence of c
such circumstances. (Para - 9) [618-C-D]
"
1.3 Where the right of private defence is pleaded, the
defence must be a reasonable and probable versi

## Text

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~-
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\
[2008] 11 S.C.R. 607
SATYA NARAIN YADAV
v
GAJANAND AND ANR.
(Criminal Appeal No. 305 of 2001)
AUGUST 1, 2008
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]
Penal Code, 1860; Ss.96-106; S.302 r/w s.149/Evidence
A
B
Act, 1872; s. 105:
C
Assault and murder- Exercise of right of private defence
- Trial Court convicted accused for committing offence punishable under s. 302 /PC and sentenced to life imprisonment
- Reversed by High Court accepting the stand of accused
that blows given by him were in exercise of right of private deD
fence - Correctness of - Held: Correct - No doubt, an accused has profound right not to be convicted for an offence
which is not established by evidential standard of proof beyond reasonable doubt - Doubts are reasonable if they are
free from a zest for abstract speculation - Law can not afford E
any favourite other than truth - While protection given by criminal process to accused not to be eroded, at the same time,
uninformed legitimation of trivialities would make mockery of
criminal justice - On facts, the High Court has rightly held that
the accused, in exercise of right of private defence, inflicted F
injuries on the deceased - Right of private defence - Exercise of
Code of Criminal Procedure, 1973 - Section 378 - Appeal against acquittal - Ingredients - Discussed.
Evidence:
G
-,.
Acquittal - Presumption in favour of accused - Dis-
..J
cussed.
607
H
'·
~
608
SUPREME COURT REPORTS
[2008] 11 S.C.R.
--f
...
A
Power of appellate Court/High Court - Held: No restric-
£.
tion has been imposed by the legislature in dealing with ap-
"':"
peal against acquittal - High Court has full power to re-appre-
'
ciate, review and re-consider the evidence at large and the
material on which order of acquittal is founded to reach its
B conclusion - Both questions of fact and of law are open to
~
determination by the High Court.
According to the prosecution, on the fateful day,
·~
when PW-13-the informant along with his brother, the
~
deceased, was working in the field, accused-respondent
p
c No.1 and others attacked his brother on his head, as a
..
"'
result of which he got injured and later succumbed to the
injuries. An FIR was lodged in the Police Station. After
completion of the investigation, charge-sheet was filed
by the Police against the accused for committing the of-
)
0
fence punishable u/s.302 IPC. Trial Court found the accused guilty of committing the murder of brother of the
}.. ,.
informant and sentenced him to undergo rigorous imprisonment for life. The High Court accepting the stand of the
i>
accused that he gave blows on the deceased in exercise
E of right of private defence acquitted him. Hence the
present appeals.
..
Appellant-informant contended that the trial Court
has erroneously held that the accused were exercising
the right of private defence.
F
~
Respondent No.1 submitted that when injury was
caused by lathi not only on the accomplice of 'G' but also
to 'G' - respondent, it cannot be said that they were not
exercising the right of private defence.
G
Dismissing the appeal, the Court
HELD: 1.1 Section 96 IPC does not define the expres-
-(
sion 'right of private defence'. It merely indicates that nothing is an offence which is done in the exercise of such right.
•
H Whether in a particular set of circumstances, a person legiti··
)
t
SATYA NARAIN YADAV v. GAJANAND &ANR.
609
~
mately acted in the exercise of the right of private defence is
A
..
a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this
question of fact, the Court must consider all the surrounding circumstances. (Para - 9) [917-G-H; 918-A-B]
B
1.2 Under Section 105 of the Indian Evidence Act,
1872, the burden of proof is on the accused, who sets up
the plea of self-defence, and, in the absence of proof, it is
'
not possible for the Court to presume the truth of the plea
,.
1
of self-defence. The Court shall presume the absence of c
such circumstances. (Para - 9) [618-C-D]
"
1.3 Where the right of private defence is pleaded, the
defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused D
was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side
.. ~
.
of the accused. The burden of establishing the plea of
self-defence is on the accused and the burden stands
discharged by showing preponderance of probabilities
E
in favour of that plea on the basis of the material on
record. (Para - 9) [618-F-G]
Munshi Ram and Ors. v. Delhi Administration AIR (1968)
SC 702; State of Gujarat v. Bai Fatima AIR (1975) SC 1478;
State of UP v. Mohd. Musheer Khan AIR (1977) SC 2226;
F
Mohinder Pal Jolly v. State of Punjab AIR (1979) SC 577 and
Salim Zia v. State of U.P. AIR (1979) SC 391 - relied on.
1.4 A plea of right of private defence cannot be based
on surmises and speculation. While considering whether
the right of private defence is available to an accused, it G
is not relevant whether he may have a chance to inflict
severe and mortal injury on the aggressor. In order to find
whether the right of private defence is available to an ac-
'r
cused, the entire incident must be examined with care and
'
_,
viewed in its proper setting. (Para - 11) [619-F]
H
610
SUPREME COURT REPORTS
[2008] 11 S.C.R.
~0--
A
1.5 To ·claim a right of private defence extending to
~
~
~
vol.untary causing of death, the accused must show that
I
there were circumstances giving rise to reasonable
grounds for apprehending that either death or grievous
hurt would be caused to him. The burden is on the acB cused to show that he had a right of private defence which
extended to causing of death. Sections 100 and 101, IPC
define the limit and extent of right of private defence. (Para
~ .
- 11) [919-A-B]
/
1.6 The right of private defence commences, as soon
"
c as a reasonable apprehension of danger to the body
~
arises from an attempt, or threat, to commit the offence,
.~
'
although the offence may not have been committed but
r
not until there is that reasonable apprehension. The right
lasts so long as the reasonable apprehension of the danD ger to the body continues. (Para - 12) [629-C-D]
Jai Dev. v. State of Punjab AIR (1963) SC 612 - relied
on.
...
,,.,
1.7. In order to find whether right of private defence
E
is available or not, the injuries received by the accused,
the imminence of threat to his safety, the injuries caused
•
by the accused and the circumstances whether the ac-
[.._
;
cused had time to have recourse to public authorities are
)
all relevant factors to be considered. (Para - 13) [629-F]
F
Biran Singh 11. State of Bihar AIR (1975) SC 87; Wassan
Singh v. State of Punjab (1996) 1 SCC 458 and Sekar alias
)..
Raja Sekharan v. State represented by Inspector of Police,
TN. (2002 (8) sec 354 - relied on.
·
G
1.8 Due weightage has to be given to, and hyper technical approach has to be avoided in considering what
happens on the spur of the moment on the ·spot and keeping in view normal human reaction and conduct, where
self-preservation is .the paramount consideration. But, if
~ }-
the fact situation shows that in the guise of self-preserva-
\
H
. SATYA NARAIN YADAV v. GAJANAND &ANR
611
~
tion, what really has been done is to assault the original
A
aggressor, even after the cause of reasonable apprehen-
;
sion has disappeared, the plea of right of private-defence
,.
can legitimately be negatived. The Court dealing with the
plea has to weigh the material to. conclude .whether the
plea is acceptable. It is essentially a finding of fact. (Para
B
- 14) [621-C-E]
Buta Singh v. The State of Punjab AIR (1991) SC 1316 -
relied on.
1.9 The right of self-defence is a very valuable right, c
serving a social purpose and should not be construed
narrowly. Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microD
scopic and pedantic scrutiny. In adjudging the question
as to whether more force than was necessary was used
in the prevailing circumstances on the spot it would be
inappropriate, as held by this Court, to adopt tests by detached objectivity which would be so natural in a Court E
room, or that which would seem absolutely necessary to
a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected
to modulate his defence step by step with any arithmetical exactitude of only that much which is required in the
thinking of a man in ordinary times or under normal cirF
cumstances. (Para - 15) [621-E-H; 622-A]
Vidhya Singh v. State of M.P AIR (1971) SC 1857 - relied on.
Russel on Crime, 11 1h Edition Volume I at p. 49 - reG
ferred to.
1.10 The right of private defence is essentially a de-
..,,
tensive right circumscribed by the governing statute i.e.
=I
the IPC, available only when the circumstances clearly H
612
SUPREME COURT REPORTS
[2008] 11 S.C.R.
A justify it It should not be allowed to be pleaded or availed
as a pretext for a vindictive, aggressive or retributive purpose of nffence. It is a right of defence, not of retribution,
expected to repel unlawful aggression and not as retaliatory measure. While providing for exercise of the right;
B care has been taken in IPC not to provide and has not
devised a mechanism whereby an attack may be a pretence for killing. A right to defend does not include a right
to launch an offensive, particularly when the need to defend no longer survived. (Para - 17) [622-E-F]
C
V Subramani and Anr vs. State of Tamil Nadu (2005)
10 sec 358 - relied on.
2.1 Bare reading of Section 378 of the Code makes it
clear that no restrictions have been imposed by the legis0
lature on the powers of the appellate court in dealing with
appeals against acquittal. When such an appeal is filed,
the High Court has full power to reappreciate, review and
reconsider the evidence at large, the material on which
the order of acquittal is founded and to reach its own con-
• clusions on such evidence. Both questions of fact and of
E law are open to determination by the High Court in an
appeal against an order of acquittal. (Para - 22) [624-F-G]
2.2 In case of acquittal, there is a double presumption in favour of the accused. Firstly, the presu!Tiption of
F innocence is available to him under the fundamental principle of criminal jurisprudence that every person should
be presumed to be innocent unless he is proved to be
guilty by a competent court of law. Secondly, the accused
having secured an acquittal, the presumption of his innoG cence is certainly not weakened but reinforced, reaffirmed
and strengthened by the trial court. Though the above
principles are well established, a different note was struck
in several decisions by various High Courts and even by
this Court. (Paras - 23 & 24) [624-H; 625-A-C]
H
Shea Swarup v. R. Emperor (1934} 61 IA 398; Nur Mohd.
)
SATYA NARAli'J YADAV v. GAJANAND & ANR.
613
>--
v. Emperor AIR (1945) PC 151; Prandas v. State AIR (1954)
A
..... -
SC 36; Surajpal Singh v. State (1952) SCR 193; Ajmer Singh
=;>"'
v. State of Punjab (1953) SCR 418; Atley v. State of UP AIR
(1955) SC 807; Aher Raja Khima v. State of Saurashtra (1955)
2 SCR 1285; Sanwat Singh v. State of Rajasthan (1961) 3
SCR 120; M. G. Agarwal v. State of Maharashtra (1963) 2 SCR B
405; Shivaji Sahabrao Bobade v. State of Maharashtra (1973)
2 sec 793; K. Gopal Reddy v. State of A.P (1979) 1 sec
355; Ramesh Babula/ Doshi v. State of Gujarat (1996) 9 SCC
225; Allarakha K. Mansuri v. State of Gujarat (2002) 3 SCC
57; Bhagwan Singh v. State of MP (2002) 4 SCC 85; Harijana c
Thirupala v. Public Prosecutor, High Court of A. P (2002) 6
SCC 470; Ramanand Yadav v. Prabhu Nath Jha (2003) 12
sec 606 and Kallu v. State of MP (2006) 10 sec 313 -
relied on.
3.1 A person has, no doubt, a profound right not to
D
be convicted of an offence which is not established by
the evidential standard of proof beyond reasonable doubt.
Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability
amounts to "proof" is an exercise particular to each case.
E
(Para - 49) [640-A-B]
Criminal Law Review, 1979, by Sweet and Maxwell,
p.340 - referred to.
3.2 Doubts would be called reasonable if they are free
F
from a zest for abstract speculation. Law cannot afford
any favourite other than truth. To constitute reasonable
doubt, it must be free from an overemotional response.
Doubts must be actual and substantial doubts as to the
guilt of the accused persons arising from the evidence, G
or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial
or a merely possible doubt, but a fair doubt based upon
--..,.
reason and common sense. It must grow out of the evidence in the case. (Para - 50) [640-C-G]
H
614
SUPREME COURT REPORTS
[2008] 11 S.C.R.
A
, 3.3 The concepts of probability, and the degrees of
-1
it, cannot obviously be expressed in terms of units to be
mathematically enumerated as to how many of such units
~
constitute proof beyond. reasonable doubt. There is an
unmistakable subjective element in the evaluation of the
B degrees of probability and the quantum of proof. Forens_ic probabili~y m,ust, in the last analysis, rest on a robust
common sense and, ultimately, .on the trained _intuiti9ns
of the Judge. While the protection given by the criminal
process to the accused persons is not to be eroded, at
c the same ti.me, uninformed legitimization of trivialities
woμ19 make a mockery of administration of criminal justice. (Para - 51) [640-H; 641-:A-C]
State of UP v. Krishna Gopal (1988) 4 SCC 302 and
Krishnan and Anr. v. State represented by Inspector of Police
D (2003) 7 sec 56 - relied on.
4. On facts, right of private defence was available to
accused-respondent No.1 as rightly held by the High
)
Court. (Para - 53) ·[641-D-E]
E
· Case Law Reference
AIR (1968) SC 702;
Relied on
Para - 9
AIR (1975) SC 1478;
AIR (1977) SC 2226;
F
AIR (1979) SC 577;
AIR (1979) SC 391
AIR (1963) SC 612
Relied on
Para - 12
AIR (1975) SC 87;
Relied on
Para - 13
G
(1996) 1 sec 458;
(2002 (8) sec 354
·-
AIR (1991) SC 1316
Relied on
Para - 14
_,,,
AIR (1971) SC 1857
Relied on
Para - 15
tH
SATYANARAIN YADAV v. GAJANAND &ANR.
615
)-
(2005} 1 o sec 358
Relied on
Para - 18
A
...........
(1934) 61 IA 398;
Relied on
Para - 25
AIR 1945 PC 151;
Relied on
Para - 29
AIR (1954) SC 36;
Relied on
Para - 30
(1952) SCR 193;
Relied on
Para - 32
B
'(
(1953) SCR 418;
Relied on
Para - 33
AIR (1955) SC 807;
Relied on
Para - 35
(1955) 2 SCR 1285;
Relied on
Para - 36
(1961) 3 SCR 120;
Relied on
Para - 37
c
(1963) 2 SCR 405;
Relied on
Para - 38
(1973) 2 sec 793;
Relied on
Para - 39
(1979) 1 sec 355;
Relied on
Para - 41
D
(1996} 9 sec 225;
Relied on
Para - 42
-
..
(2002) 3 sec 57;
Relied on
Para - 43
(2002) 4 sec 85;
Relied on
Para - 44
(2002) 6 sec 470
Relied on
Para - 45
E
(2003) 12 sec 606
Relied on
Para - 46
(2006) 10 sec 313
Relied on
Para - 47
(1988) 4 sec 302
Relied on
Para - 51
(2003) 1 sec 56
Relied on
Para - 52
F
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 305 of 2001
From the final Judgment and Order dated 10.8.2000 of
the High Court of Judicature for Rajasthan, Bench at Jaipur in G
D.B. Crl. Appeal No. 628/1999
(\nurag Sharma, Joseph Pookatt, Prashant Kumar,
"'"
Aruneshwar Gupta, Kumar Kartikay, Ranvijay and Pratibha Jain
-=1
for the Appearing Parties.
H
1
616
SUPREME COURT REPORTS
[2008] 11 S.C.R.
A
The Judgment of the Court was delivered by
-~
Dr. ARIJIT PASAYAT, J. 1. These two appeals are directed
.............
against the judgment of a Division Bench of the Rajasthan High
Court directing acquittal of respondent Gajanand. One appeal
B
has been filed by the informant while the other has been filed by
the State. The trial Court i.e. learned Additional Sessions Judge,
No.2, Bundi, Rajasthan, had convicted Gajanand for offence pun-
)
ishable under Section 302 of the Indian Penal Code, 1860 (in
short the 'IPC') and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.2,000/- with default stipulac tion. Co-accused Mahavir was, however, acquitted.
2. Background facts in a nutshell are as follows:
Kana (PW-13) lodged a First Information Report (Ext. P2) that whi!e he and his brother Devi Lal (hereinafter referred to
D as 'deceased') were working in the field, respondent No.1Gajanand and Mahavir objected to it and caused injury tq him. It
was stated that Gajanand was having an axe in his hand and he
caused injuries to Devi Lal on his head. Earlier, a case under
> ,,
Section 307 IPC was registered but on the death ·of Devi Lal
E charge under Section 302 IPC was added. After completion of
investigation, challans were submitted against Gajanand and
Mahavir.
3. As appears from the first- information report the inforF
mant had stated that while they were harvesting the wheat at
the agricultural land in the morning two cow boys were grazing
. their goats. When loss was caused to the crops, Devi Lal asked
them not to do so. They insisted that goats would be grazed
and their names were Gajanand and Mahavir. When Devi Lal
further asked them not to do so, Gajanand gave a blow of axe
G on the left side of his head and the deceased fell down. Thereafter, Mahavir assaulted with fists and the handle of the axe.
t=
Thereafter both of them fled away.
..
4. Charge sheet under Section 302 as well as under Sec-
..,., .
tion 302 read with Section 149 was filed separately against
...
H
SATYA NARAIN YADAV v. GAJANAND &ANR.
617
~
[DR. ARIJIT PASAYAT, J.]
-
accused persons. The accused persons pleaded innocence.
A
/
Sixteen witnesses were examined to further the prosecution
version. Kana (PW-13) was stated to be an eye-witness. The
Trial Court found Gajanand guilty of offence punishable under
Section 302 IPC. Mahavir, as noted above, was acquitted.
-f
Present respondent preferred an appeal before the High Court B
which by the impugned judgment set aside the conviction.
5. The accused had taken the stand during trial that when
Mahavir was trying to drive out the goat which entered into the
field of Devi Lal, he was given beatings by the deceased and
two lathi blows were inflicted on him. When Gajanand came to c
..
his rescue, he was also addressed in contemptuous manner
and was given two lathi blows.
6. It was stated that by exercising the right of private defence, two blows were given by Gajanand and, therefore, the
D
accused person cannot be convicted. The High Court has accepted this stand of the accused and held that the right of private defence is available.
7. In support of the appeal filed by the State and the informant it is submitted that the trial Court has erroneously held that
E
the accused were exercising the right of private defence.
8. Learned counsel for the accused-Gajanand submitted
that when injury was caused by lathi not only on Mahavir but
also to Gajanand-respondent, it cannot be said that they were
...(
not exercising the right of private defence. In any event, accordF
ing to him, if parameters of appeal against acquittal are kept in
view, no interference is called for.
9. Only question which needs to be considered is the alleged exercise of right of private defence. Section 96, IPC proG
vides that nothing is an offence which is done in the exercise of
-...,-
the right of private defence. The Section does not define the
I
expression 'right of private defence'. It merely indicates that
•
nothing is an offence which is done in the exercise of such right.
Whether in a particular set of circumstances, a person legitiH
618
SUPREME COURT REPORTS
[2008] 11 S.C.R.
"""'
A
mately acted in the exercise of the right of private defence is a
-
question offact to be determined on the facts and circumstances
of each case.· No test in the abstract for determining such a
question can be laid down. In determining this question of fact,
the Court must consider all the surrounding circumstances. It is
B not necessary for the accused to plead in so many words that
he acted in self-defence. If the circumstances show that the right
)
of private defence was. legitimately exercised, it is open to the
Court to consider such a plea. In a given case the Court can
consider it even if the accused has not taken it, if the same is
c available to be considered from the material on record. Under
Section 105 of the Indian Evidence Act, 1872 (in short 'the Evidence Act'), the burden of proof is on the ac.cused, who sets up
the plea of self-def~nce, and, in the absence of proof, it is riot
possible'for the Court to presume the truth of the plea of selfD defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on
record either by himself adducing positive evidence or by-elic-
>
iting necessary facts from the witnesses examined for.the prosecution. An accused taking the plea of the right of private deE
fence is not necessarily required to call evidence; he can establfsh his plea by reference to circumstances transpiring from
the prosecution evidence itself. The question in such a case
would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging
any burden. Where the right of private defence.is pleaded, the
F defence must be a reasonable and probable version satisfying
the Court that the harm caused by the accused was necessary
.~
for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accu:.ed. The burden of establishing the plea of self-defence is on the accused
G and the burden stands discharged by showing preponderance
of probabilifies in favour of that plea on tr2 basis of the material
'
on record. (See Munshi Ram and Ors. 1. Delhi Administration
~
'I"" I'=
(AIR 1968 SC 702), State of Gujarat v Bai Ff!tima (AIR 1975
'·
SC 1478), State of UP v Mohd. Musheer Khan (AIR 1977
H SC 2226), and Mohinder Pal .Jolly v. State of Punjab (AIR 197·9
SATYA NARAIN YADAV v. GAJANAND &ANR.
619
~
[DR. ARIJIT PASAYAT, J.]
I('
SC 577). Sections 100 to 101 define the extent of the right of A
private defence of body. If a person has a right of private defence of body under Section 97, that right extends under Section 100 to causing death if there is reasonable apprehension
that death or grievous hurt would be the consequence of the
-f
assault. The oft quoted observation of this C'ourt in Salim Zia v.
B
State of UP (AIR 1979 SC 391), runs as follows:
"It is true that the burden on an accused person to establish
the plea of self-defence is not as onerous as the one
which lies on the prosecution and that, while the prosecution
is required to prove its case beyond reasonable doubt, c
ire.
the accused need not establish the plea to the hilt and
'
may discharge his onus by establishing a mere
preponderance of probabilities either by laying basis for
that plea in the cross-examination of the prosecution
witnesses or by adducing defence evidence."
o.
-1
..
..
10. The accused need not prove the existence of the right
\
of private defence beY-ond reasonable doubt. It is enough for
,
'
him to show as in a civil case that the preponderance of probabilities is in favour of his plea.
E
11. A plea of right of private defence cannot be based on
...
surmises and speculation. While considering whether the right
of private defence is available to an accused, it is not relevant
\
whether he may have a chance to inflict severe and mortal injury
on the aggressor. In order to find whether the right of private
F
..(
defence is available to an accused, the entire incident must be
examined with care and viewed in its proper setting. Section
....,
97 deals with the subject matter of right of private defence. The
plea of right comprises the body or property (i) of the person
exercising the right; or (ii) of any other person; and the right may G
•
be exercised in the case of any offence against the body, and in
I
the case of offences of theft, robbery, mischief or criminal tres-
....
pass, and attempts at such offences in relation to property. SecIll
tion 99 lays down the limits of the right of private defence. Sec-
\ .
tions 96 and 98 give a right of private defence against certain
H
l ,
i
620
SUPREME COURT REPORTS
[2008] 11 S.C.R.
-.I
"~
A
offences and acts. The right given under Sections 96 to 98 and
.
~
I
•
100 to 106 is controlled by Section 99. To claim a right of pri-
,_...,..
vate defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to
reasonable grounds for apprehending that either death or grievB ous hurt would be caused to him. The burden is on the accused
to show that he had a right of private defence which extended to
)
causing of death. Sections 100 and 101, !PC define the limit
and extent of right of private defence.
""'
12. Sections 102_and 105, IPC deal with commencement
c and continuance of the right of private defence of body and property respectively. The right commences, as soon as a reason- -
able apprehension of danger to the body arises from an attempt,
..
or threat, to commit the offence, although the offence may not
have been committed but not until there is that reasonable apD prehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. In Jai Dev. v. State
of Punjab (Al R 1963 SC 612), it was observed that as soon as
>
~-
the cause for reasonable apprehension disappears and the
~,
threat has either been destroyed or has been put to route, there
E can be no occasion to exercise the right of private defence.
13. In order to find whether right ofprivate defence is available or not, the injuries received by the accused, the imminence
•
of threat to his safety, the injuries caused by the accused and
the circumstances whether the accused had time to have reF course to public authorities are all relevant factors to be considr
ered. Similar view was expressed by this Court in Biran Singh
)I.
v. State of Bihar (AIR 1975 SC 87). (See: Wassan Singh v.
State of Punjab (1996) 1 SCC 458, Sekar·alias Raja Sekharan
,....
v. State represented by Inspector of Police, TN. (2002 (8) SCC
-4
G 354).
14. As noted in Butta Singh v. The State of Punjab (AIR
,.
1991 SC 1316), a person who is appretiendirig death or bodily
-,..
l•
injury cannot weigh in golden scales in the spur of moment and
>-
H
in the heat of circumstances, the number of injuries required to
SATY;\ NARAIN YADAV v. GAJANAND & ANR.
621
[DR. ARIJIT PASAYAT, J.]
~
disarm the assailants who were armed with weapons. In moA
...,....
ments of excitement and d1sturbed mental equilibrium it is often
difficult to expect the parties to preserve composure and use
exactly only so much force in retaliation commensurate with the
danger apprehended to him where assault is imminent by use
of force, it would be lawful to repel the force in self-defence and
B
~
the right of private-defence commences, as soon as the threat
becomes so imminent. Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due
weightage has to be given to, and hyper technical approach c
has to be avoided in considering what happens on the spur of
the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount
consideration. But, if the fact situation shows that in the guise of
self-preservation, what really has been done is to assault the D
original aggressor, even after the cause of reasonable appre-
..
hension has disappeared, the plea of right of private-defence
can legitimately be negatived. The Court dealing with the plea
has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact.
E
15. The right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. (See
Vidhya Singh v. State of M.P (AIR 1971 SC 1857). Situations
have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion
F
J
of the moment, confronted with a situation of peril and not by
.<(
any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necessary was used in
the prevailing circumstances on the spot it would be inappropriate, as held by this Court, to adopt tests by detached objecG
~
tivity which would be so natural in a Court room, or that which
4
would seem absolutely necessary to a perfectly cool bystander.
""
The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his defence step by step
with any aritt,imetical exactitude of only that much which is reH
622
SUPREME COURT REPORTS
[2008] 11 S.C.R.
A quired in the thinking of a man in ordinary times or under normal
circumstances.
B
c
16. In the illuminating words of Russel (Russel on Crime,
11 1h Edition Volume I at page 49):
" .... 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
$tands but may indeed pursue his adversary t,.mtil the
danger is ended and if ·in a· conflict betWeen them· he
happens to kill his attacker, such killing is justifiable."
.
.
.
.
17. The right of private defence is essentially a defensive
rigbtcircumscribed by the governing statute i.e. the IPC, availD able only vyhen the circumstances clearly justify it. It should not
be allowed. to be pleaded or availed as a pre.text for a vindictiv_e, aggressive or retributive purpose of offence. It is a right of
defence, n~t of retribution, expected 'to repel unlawful .aggr~s~
sion and -not as retaliatory measure. While providing for ex~r··
E cise of the ·right, care has been taken in IPC not to provide and
has not devised a mechanism-whereby an attack may be a pretence for killing. A right to defend does not include a right to
launch an offensive, particularly when the n'eed to defend no
longer survived. ·
F
18. The above position was. highlighted in, V · Subramani
aryd Anr. vs . . State .of Tamil Nadu (2005 .(10) SCC 358) and
Genda Singh and Ors. v. Stat~ of-U.P .. (CriminaiAppeal arising
out of SLP (Crl.) No.1029/07.disposed of on July 9,,2008).
;
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.
.
.
•';
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19. It alsc>would be necessary'and proper fo consider and
clarify the legal position first. Chapter XXIX (Sections 372-394)
of the Code of Criminal Procedure; 1973 (hereinafter ·referred
to as "the present Code") deals with appeals. Seetion 372 expressly-declares that no appeal shall lie from any judgment or
H order of a criminal court excepras provided by the Code or' by
)
.it
SATYA NARAIN YADAV v. GAJANAND &ANR.
623
[DR. ARIJIT PASAYAT, J.]
)""
any other law for the time being in force. Section 373 provides A
for filing of appeals in certain cases. Section 374 allows appeals from convictions. Section 375 bars appeals in cases
where the accused pleads guilty. Likewise, no appeal is maintainable in petty cases (Section 376). Section 377 permits appeals by the State for enhancement of sentence. Section 378 B
confers power on the State to present an appeal to the High
Court from an order of acquittal. The said section is material
and may be quoted in extenso:
"378. Appeal in case of acquittal.-(1) Save as otherwise
provided in sub-section (2) and subject to the provisions of c
sub-sections (3) and (5), the State Government may, in any
· case, direct the Public Prosecutor to present an appeal to
the High Court from an original or appellate order of acquittal
passed by any court other than a High Court, or an order of
acquittal passed by the Court of Session in revision.
D
"
(2)
If such an order of acquittal is passed in any case in
..
which the offence has been investigated by the Delhi
Special Police Establishment constituted under the
Delhi Special Police Establishment Act, 1946 (25 of
E
1946), or by any other agency empowered to make
investigation into an offence under any Central Act
other than this Code, the Central Government may
also direct the Public Prosecutor to present an
appeal, subject to the provisions of sub-section (3),
to the High Court from the order of acquittal.
F
(3)
No appeal under sub-section (1) or sub-section (2)
shall be entertained except with the leave of the High
Court .
(4) . If such an order of acquittal is passed in any case G
institu~ed upon complaint and theHigh Court, on an
application made to it by the complainant in this
..,.
behalf, grants special leave to appeal from the order
of acquittal, the complainant may present such an
appeal to the High Court.
H
A
B
c
D·
624
SUPREME COURT REPORTS
[2008] 11 S.C.R.
(5)
No application under sμb-section (4) for the grant'of
spe.cial leave to appeal from an order of acquittal
shall be entertained by the High Court after the expfry
of six months, where the complainant is a public
servant, and sixty days in every other ca$e, computed
from the date of that ord~r of acquittal.
(6)
If, in any case, the application under sub-section (4)
for the grant of special leave to appe·a1 from an order
of acquittal is refused, no appeal fr.om that order of
acquittal shall lie under sub-section (1) or under subsection (2). -
·
' ·
20. Whereas Sedions 379-380 cover special cases of
appeals, other sections lay down procedure to be followed by
appellate courts.
21. It may be stated that more or less similar provisions
were found in the Code of Criminal Procedure, 1898 (he·reinafter referred to as "the old Code") which came up for consideration ·before various High Courts, Judicial Committee of the
Privy Council as also before this Court. Since in the present
E appeal, we have been called upon to decide the ambit and
scope of the power of an appellate court ·in an appeal against
an order of acquittal, we have confined ourselves to one aspect
I
,
.
•.
only i.e. an appeal against an order of acquittal.
·
22. Bare reading of Section 378 of the present Code (apF
peal in case of acquittal) quoted above, makes it clear that no
restrictions have been imposed by the legislatuie bn the powers of the appellate court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full
power to reappreciate, review and reconsider the evidence at
G large, the material on which the order of acquittal is founded
and to reach its own conclusions on .such evidence. Both questions of fact and of law are open to determin~tion by the High
Court in an ~ppeal against an order of acquittal. .
H
23; It cannot, however, be forgotten that in case of acquit-
)
SATYA NARAIN YADAV v. GAJANAND &ANR.
625
•
)'
[DR. ARIJIT PASAYAT, J.]
tal, there is a double presumption in favour of the accused.
A
Firstly, the presumption of innocence is available to him under
the fundamental principle of criminal jurisprudence that every
· person should be presumed to be innocent unless he is proved
to be guilty by a competent court of law. Secondly, the accused
· having secured an acquittaJ, the presumption of his innocence B
is certainly not weakened but reinforced, reaffirmed and
strengthened by the trial court.
24. Thoug·h ·the above principles are well established, a
. different note was struck in several decisions by various High
Courts and eve~ by this Court. It is, therefore, appropriate if we c
consider some of the leading decisions on the point.
25. The first important decision was rendered by the Judicial Committee of the Privy Council in Sheo Swarup v. R. Emperor (1934) 61 IA 398). In Sheo Swarup the accused were
D
. acquitted by the trial court and the local Government directed
I
.....
the Public Prosecutor to present an appeal to the High Court
from an order of acquittal under Section 417 of the old Code
(similar to Section 378 of the present Code). At the time of hearing of appeal before the High Court, it was contended on behalf E
. of the accused that in an. appeal from an order of acquittal, it
was not open to the appellate court to interfere with the findings
of fact recorded by the trial Judge unless such findings could
not have been reached by him had there not been some perversity or incompetence on his part. The High Court, however,
declined to accept the said view. It held that no condition was
F
imposed on the High Court in such appeal. It accordingly reviewed all the evidence in the case and having formed an opinion of its weight and reliability different from that of the trial Judge,
recorded an order of conviction. A petition was presented to
His Majesty in Council for leave to appeal on the ground that G
conflicting views had been expressed by the High Courts in dif-
...,
ferent parts of India upon the question whether in an appeal
~
from an order of acquittal, an appellate court had the power to
interfere with the findings of fact recorded by the trial Judge.
Their Lordships thought it fit to clarify the legal position and acH
'
626
SUPREME COURT REPORTS
[2008] 11 S.C.R.
....
,
1
A cordingly upon the "humble advice of their Lordships", leave was
\
granted by His Majesty. The case was, thereafter, argued. The
Committee considered the scheme and interpreting Section 417
of the Code (old Code) observed that there was no indication
in the Code of any limitation or restriction on the High Court in
B exercise of powers as an Appellate Tribunal. The Code also
)
made no distinction as regards powers of the High Court in
dealing with an appeal against acquittal and an appeal against
\
conviction. Though several authorities were cited revealing different views by the High Courts dealing with an appeal from an
c order of acquittal, the Committee did not think it ~roper to discuss all the cases.
26. Lord Russel summed up the legal position thus:
"There is, in their opinion, no foundation fot the view,
D
apparently supported by the judgments of some courts in
India, that the High Court has no power or jurisdiction to
Jo.
reverse an order of acquittal on a matter of fact, except in
cases in which the lower court has 'obstinately blundered',
or has 'through incompetence, stupidity or perversity'
E
reached such 'distorted conclusions as to produce a
positive miscarriage of justice', or has in some other way
so conducted or misconducted itself as to produce a
glaring miscarriage of justice, or has been tricked by the
defence so as to produce a similar result."
F
27. His Lordship, then proceeded to observe: (IA p.404)
"Sections 417, 418 and 423 of the Code give to the High
Court full power to review at large the evidence upon which
the order of acquittal was founded, arid to reach the
conclusion that upon that evidence the order of acquittal
G
should be reversed. No limitation should be placed upon
that power, unless it be found expressly stated in the Code."
'r
28. The Committee, however, cautioned appellate courts
f,
and stated: (IA p.404)
H
"But in exercising the power conferred by the Code and
SATYA NARAIN YADAV v. GAJANAND &ANR.
627
~
.,...
[DR.