# STATE OF U.P v. RAM SWARUP & ANR

- **Citation:** [1975] 1 S.C.R. 409
- **Court:** Supreme Court of India
- **Decided:** 1974-05-02
- **Case number:** Criminal Appeal No. 192 of 1972
- **Bench:** M. H. Beg, Y. V. CJfANDRACHUD, V. R. Krishna Iyer
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-u-p-v-ram-swarup-anr-6341
- **Pages:** 13

## Headnote

Criminal Law-Murder-Private defence, right of.
Ap,peaf-Appeal against aOquittal-Locus standi of Stdte to appeal under
ar:icle 136.
G and deceased M were trade rivals.
At about 7 a.m. G went to pur~
chase a basket of melons from the deceased.
The deceased declined to sell
it.
Hot words f'ollowed.
G left in a huff. An hour later Ci went to the•
n1arket with his son R and two other sons.
G had a knife ll a gun and
the others carried lathis.
They advanced aggressively to\vards the decease.I
who attempted to retreat.
R shot him dead at point b'lank range.
The
Learned Sessions Jltdge convicted R under section 302 and sentenced him·
to death.
G was convicted under section 302 read with section 34 and was
sentenced to iJJ1prisonment for life. The other two sons were acquitted of
all the charges. On appeal, the High Court of Allahabad acquitted R and
G and confirmed the acquittal of the other sons.
HELD : Confirming the acquittal of G but restoring the conviction of R
and awarding life sentence,
(i) The burden which rests on the prosecution to establish its case beyond
reasonable doubt is neither neutralised nor shifted because the accused pleads
the right of private defence. The prosecution must discharge its
. initial
traditional burden to establish the complicity of the accused and until it does
so, the question whether the accused has acted in self defence or not does not
arise. The Sessions Court accepted the evidence of 5 prosecution witnesses
after a careful Secruting and the High Court was unduly suspicious
of that
evidence in the name of caution. Caution is safe and unfailing guide in the
judicial armoury but a cautious approach does not justify an a priori assumption that the case is surrounded in suspicion.
Murders arc not committed by
coolly weighing the pros and cons.
[412C-F, H; 414A]
(ii) The right of private defence is a right of defence. not of a retribution.
It is :'. \1ailable in face of imminent peril to those who act in good faith and
in no case can the
right be conceded to a person who istage-manages the
situation wherein the right can be used as a shield to justify an act of aggression. Evidently the accused went to the market with a pre-conceived design
to pick up a quarrel. It is a necessary incident of the right of private defence
that the force used must bear a reasonable proportion to the injury to be
averted. Ther.e was no justification for killing the deceased selectively. The
right of def1ence ends with the necessity for it.
When a person is accused Of an
offence the burden of proving the existence of circumstances bringing tb·e
c•se within any of the general exceptions in the Penal Code is upon him
and the court shall presume the absence of such circumstances. The right
of private defence constitutes a general exception to the offences defined in
the Penal Code.
The burden which rests on the accused to prove the exception is not of the same rigour as the burden of the prosecution to prove the
charge beyond a reasonable doubt. It is enough for accused to show as in
a civil case that the preponderance of probabilities is in favour of his plea.
The respondents led no evidence to prove their defence but th:.1t is not nece!-
sary bo:.ause such proof can be offered by re·lying on the evidence led by the
prosecution, the material elicited by cross-examining the prosecution witnesses
and the totality of facts and circumstances emerging out of the evidence in
the case. The conclusion of the High Court in regard to Ram Swarup being
plainly unsupportable and leading to a manifest failure of justice it was set
aside and the order of the Sessions Court convicting him under section 302
of the Pena] Code was restored. The sentence was however. reduced
to
life imprisonment since the p0'5Sibility of scuflle cannot be excluded.
[414H;
416D-417G]
SUPREME COURT REPORTS
(1975] l s.c.R.
In regard to G although if this Court was to consider the case independently
it might have come to a conclusion different from the one arriv

## Text

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409
STATE OF U.P.
v.
RAM SWARUP & ANR.
May 2, 1974
[M. H. BEG, Y. V. CJfANDRACHUD AND V. R. KRISHNA IYER, JJ.]
Criminal Law-Murder-Private defence, right of.
Ap,peaf-Appeal against aOquittal-Locus standi of Stdte to appeal under
ar:icle 136.
G and deceased M were trade rivals.
At about 7 a.m. G went to pur~
chase a basket of melons from the deceased.
The deceased declined to sell
it.
Hot words f'ollowed.
G left in a huff. An hour later Ci went to the•
n1arket with his son R and two other sons.
G had a knife ll a gun and
the others carried lathis.
They advanced aggressively to\vards the decease.I
who attempted to retreat.
R shot him dead at point b'lank range.
The
Learned Sessions Jltdge convicted R under section 302 and sentenced him·
to death.
G was convicted under section 302 read with section 34 and was
sentenced to iJJ1prisonment for life. The other two sons were acquitted of
all the charges. On appeal, the High Court of Allahabad acquitted R and
G and confirmed the acquittal of the other sons.
HELD : Confirming the acquittal of G but restoring the conviction of R
and awarding life sentence,
(i) The burden which rests on the prosecution to establish its case beyond
reasonable doubt is neither neutralised nor shifted because the accused pleads
the right of private defence. The prosecution must discharge its
. initial
traditional burden to establish the complicity of the accused and until it does
so, the question whether the accused has acted in self defence or not does not
arise. The Sessions Court accepted the evidence of 5 prosecution witnesses
after a careful Secruting and the High Court was unduly suspicious
of that
evidence in the name of caution. Caution is safe and unfailing guide in the
judicial armoury but a cautious approach does not justify an a priori assumption that the case is surrounded in suspicion.
Murders arc not committed by
coolly weighing the pros and cons.
[412C-F, H; 414A]
(ii) The right of private defence is a right of defence. not of a retribution.
It is :'. \1ailable in face of imminent peril to those who act in good faith and
in no case can the
right be conceded to a person who istage-manages the
situation wherein the right can be used as a shield to justify an act of aggression. Evidently the accused went to the market with a pre-conceived design
to pick up a quarrel. It is a necessary incident of the right of private defence
that the force used must bear a reasonable proportion to the injury to be
averted. Ther.e was no justification for killing the deceased selectively. The
right of def1ence ends with the necessity for it.
When a person is accused Of an
offence the burden of proving the existence of circumstances bringing tb·e
c•se within any of the general exceptions in the Penal Code is upon him
and the court shall presume the absence of such circumstances. The right
of private defence constitutes a general exception to the offences defined in
the Penal Code.
The burden which rests on the accused to prove the exception is not of the same rigour as the burden of the prosecution to prove the
charge beyond a reasonable doubt. It is enough for accused to show as in
a civil case that the preponderance of probabilities is in favour of his plea.
The respondents led no evidence to prove their defence but th:.1t is not nece!-
sary bo:.ause such proof can be offered by re·lying on the evidence led by the
prosecution, the material elicited by cross-examining the prosecution witnesses
and the totality of facts and circumstances emerging out of the evidence in
the case. The conclusion of the High Court in regard to Ram Swarup being
plainly unsupportable and leading to a manifest failure of justice it was set
aside and the order of the Sessions Court convicting him under section 302
of the Pena] Code was restored. The sentence was however. reduced
to
life imprisonment since the p0'5Sibility of scuflle cannot be excluded.
[414H;
416D-417G]
SUPREME COURT REPORTS
(1975] l s.c.R.
In regard to G although if this Court was to consider the case independently
it might have come to a conclusion different from the one arrived at by the
High Court, in view of the principles governing appeals under Article 136
the order passed by the High Court was not disturbed. [418A-D]
A
(iii) The locus standi of State Governments to file appeals in this Court
against judgments or orders rendered in criminal matters bas been recognised
over the years for a valid reason ·namely, all crimes raise problems of law and
order and some raise issues of public disorder.
The State Governments are
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entrusted with the enforcement and execution of laws directed against prevention and punishment of crimes. They have, therefore
4 vital stake in criminal matters.
The objection that the State Government has
no locus sta11di
to file the appeal must be rejected. [421A-C]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 192
of 1972.
Appeal by special leave from the Judgment ond order dated the
13th October, 1971 of the Allahabad High Court in Cr!. A. No.
672 of 1971.
D. P. Uniyal and 0. P. Rana, for the appellants
Frank Anthony, A. K. Garg, Santokh Singh and Ramesh Sharma,
c
for respondent No. 1.
D
R. K. Garg and Santokh Singh, for respondent No. 2.
Nurrudin Ahmed and U. P. Singh, fo~ the complainant.
The Judgment of the Court was delivered by
CHANDRACHUD, J.
On the mornin!J of June 7, 1970 in the Subzi
Mandi
at Badaun,
U.P., a person called Sahib Datta Mal, alias
Munimji was shot dead. Ganga Ram and his three sons, Ram
Swarup, Sarni and Subhash were prosecuted in connection with that
incident. Ram Swarup was convicted by the learned Sessions Judge,
Badaun, under section 302, Panel Code, and was sentenced to death.
Ganga Ram was convicted under section 302 read with section 34 and
was sentenced to imprisonment for life. They were
also convicted
under the Arms Act and sentenced to concurrent terms of imprisonment.
Somi and Subhash were acquitted of all the charges as also
was Ganga Ram of a charge under section 307 of the Penal Code
in regard to an alleged knife-attack on one Nanak Chand.
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The High Court of Allahabad has acquitted Ganga Ram and
Ram Swarup in an appeal filed by them and has
dismissed
the
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appeal filed by the State Government challenging the acquittal of
Somi and Subhash. In this appeal by special leave we are concerned only with the correctness of the judgment of acquittal in favour of
Ganga Ram and Ram Swarup.
· Except for a solitary year, Ganga Ram held from the Municipal
Board of Badaun the contract of Tehbazari in the vegetable market
H
fr<;im 1954 to 1969.
The deceased Munimji out-bid Ganga Ram
in the annual auction of 1970-71 which led to the day-light outrage
of June 7, 1970.
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U.P. STATE v. RAM SWARUP (Chandrachud, J.)
411
At about 7 a.m. on that day Ganga Ram is
alleged to have
gone to the market to purchase a basket oi melons.
The deceased
declined to sell it saying that it was already marked for another
customer.
Hot words followed during which the deceased, asserting his authority, said that he was the Thekedar of the market and
his word was final. Offended by this show of authority, Ganga Ram
is alleged to have left in a huff.
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An hour later Ganga Ram went back to the market with his
three sons, Ram Swamp, Somi and Subhash.
Ganga Ram had a
knife, Ram Swamp had a gun and the two others carried lathis .
The:y threw a challenge saying that they wanted to know whose
authority prevailed in the market.
They advanced aggressively to
the gaddi of the deceased who, taken by surprise, attempted to rush
in a neighbouring kothari.
But that was much too late for before
he could retreat, Ram Swamp shot him dead at point-blank range.
It was at all stages undisputed that Ganga Ram and Ram Swarup
went to the market at about 8 a.m. that one of them was armed with
a gun and that a shot fired from that gun by Ram Swamp caused
the death of Munimji.
Though there was no direct evidence of the 7 O'clock incident
the learned Sessions Judge accepted the prosecution case
that
the
shooting wa1> preceded by that incident. In coming
to
that conclusion the learned Judge relied upon the evidence of Sona Ram,
Nanak Chand, Shanti Lal, Shariat Ullah and Shiva
Dutta
Mal
(P. Ws. I to 5) to whom the deceased had narrated the incident.
These witnesses were also examined in order to establish the main
incident and their evidence in that regard was also accepted by the
learned Judge. Having fonnd that these witnesses were
trnstworthy
and that their evidence established the case of the prosecution the
learned Judge proceeded to consider whether as contended by Ganga
Ram and Ram Swamp the shot was fired by Ram Swarup in exercise of the right of private defence. Adverting to a variety of circumstances the learned Judge rejected that theory and held that the
charges levelled against the two
accused were
proved
beyond
a
reasonable doubt.
The High Court disbelieved the evidence
in
regard
to
the
7 O'clock incident.
Jn any case, accordi'lg to the High Court, that
incident was far to trifling to lead to the shooting <outrage.
The
High Court accepted the defence version that a scuffle
had
taken
place between the deceased Mnnimji and
Ganga Ram and
that
Ganga Ram was assaulted with lathis by Shiva Dutta Mal (P.W. 5)
and the servants of the deceased. The High Court concluded :
''I:f Ganga Ram was being given repeated lathi blows
by P.W. Shiva Dutta Mal and, servants of the deceased,
then Ram Swarup had full justification to fire his
gun in
the right of private defence of the person of his
father.
It may be that the gun fire injured the
deceased,
rather
412
SUPREME COURT REPORTS
(1975] 1 s.c.R.
than those who were belabouring Ganga Ram with lathis.
But once we come to the conclusion that it was
not unlikely that Ram Swarμp had used his gun in the circumstances narrated above, i.e. in order to save his aged father
from the clutches and assaults of bis assailants, he cannot
be held guilty of murder or for the matter of that of any
other offence".
In regard to Ganga Ram the High Court held that be could not
be found guilty under section 302 read with section 34 "as his presence in the Subzimandi was not for
the purpose of killing the
deceased, as suggested by the prosecution, but he had more probably reached there alongwith his son Ram Swarup, on way back
from their vegetable farm, in order to purchase melons.
"
The burden which rests on the pr0secution to establish its case
beyond a reasonable doubt is neither neutralised
nor shifted because .the accused pleads the right of private defence.
The . prosecution must discharge its initial traditional burden to establish the
complicity of the accused and not until it does so can the question
arise whether the accused had acted in self-defence.
This position,
though often overlooked, would be easy
to understand if
it is
appreciated that the Civil Law rule of pleadings does
not
govern
the rights of an accused in a criminal trial.
Unlike in a civil case,
it is opep. to a criminal court to find in favour of an accused on a plea
not taken up by him and by so doing the court does not invite the
charge that it has made out a new case for the accused. The accused
may not plead that he acted in self-defence and yet the court may find
from the evidence of the witnesses examined by the prosecution and
the circumstances of the case either that what would otherwise b.o an
offence is not one because the accused has acted within the strict coafines of his right of private defence or that the offence ·is mitigated because the right of private defence has been exceeded. For a moment,
therefore, we will keep apart the plea of the accused and examine
briefly by applying the wel!,known standard of proof whether the prosecution, as held by the Sessions Court, has proved its case.
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The evidence of the five
witnesses-Sona Ram,. Nanak Chand,
Shanti Lal, Shariat Ullah, Shiva Dutta Mal-is consistent and convincing on the broad points of the case. The Sessions Court accepted that
evidence after a careful scrutiny and we are inclined to the view that
the High Court was unduly suspicious of that evidence in the name of
caution. The High Court thought that the evidellice of these witnesses
must be viewed with great caution because Sona Ram and Shanti Lal
are the first cousins of the deceased, Nanak Chand and Shiva Dutta
Mal were co-sharers of the deceased in the Tehbazari contract, Shariat
Ullah was a constituent of the deceased and because Sona Ram, Nanak
Chand and Shiva Dutta Mal being co-sharers in the contract should
have been moving about the market rather than remain at the gaddi
of the deceased where he was shot down. Caution is a safe and unfailing
guide in the judicial armoury but a cautious approach does not iustify
an a priori assumption that the cas.e is shrouded in suspicion. This is
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U.P. STATE v. RAM SWARUP (Chandrachud, l.)
413
exemplified by the rejection of the melon incident by the High Court
on the grounds, inter alia, that there was no entry in the account books
of the deceased evidencing the sale of the melon-basket and that the
owner of the melons was not called to support the prosecution case.
The point in issue was not whether the melon-basket was in truth and
reality sold to another customer, in which case the evidence of the
owner and the account books of the deceased would have some relevance. The point of the matter was that three was trade rivalry between
the deceased and Ganga Ram, their relations were under a deep strain
and therefore the deceased declined to sell the melons to Ganga Ram
The excuse which the deceased trotted out may be true or false. And
indeed, greater the falsity of that excuse greater the affront to Ganga
Ram.
The melon incident formed a prelude to the inain occurrence and
was its immediate cause.
By disbelieving it or by treating it alternatively as too trifling the High Court was left to wonder why Ganga
Ram and Ram Swamp went to the market armed with a gun, which
they admi,ttedly did.
The case of the prosecution that they went back
to the market to retaliate against the highhandedness of the deceased
was unacceptable to the High Court because "it does not stand to
reason that the appellants and their two other companions (sons of
Ganga Ram) would walk into the lion's den in broad day light and
be caught and beaten up, and even be done to death by the deceased,
his partners and servants, besides hundreds of people who were bound
to be present in the Sabzimandi at about 8 A.M.
Such a large congregation could have easily disarmed the appellants and their two
other companions and given _them a thorough beating if not mortal injuries".
Evidently, they did go to the market which to their way of
thinking was not a lion's den.
And they went adequately prepared to
meet all eventualities. The large congregation of which the High
Court speaks is often notoriously indifferent to situations involving harm
or danger to others and it is qontrary to common experience that anyone wonld readily accost a gun-man in order to disarm him.
The High Court saw yet another difficulty in accepting the prosecution case :
"Even if the appellants and their companions would have
been so very hazardons, they could not have exposed their
lives by carrying only one cartridge in the gun, if they had
really gone to murder the deceased and make a safe retreat.
It might very well have been that the first shot went stray
and did not hit the deceased.
It was, therefore, necessary
to have at least both the barrels loaded with cartridges. In
fact one would expect the ready availability of more cartridges with the appellants, because they were bound to fire
some rounds of shots to create a scare in the crowded Sabzimandi, before making good. their escape. For this reason
also one would expei:t them to keep both the barrels loaded
with cartridges and also to carrv some spare cartridges for
the sake of contingency and safety."
414
SUPREME COURT REPORTS
[1975] 1 S.C.R.
Murders like the one before ns are not committed by coolly weighing
the pros and cons.
Ganga Ram and Ram Swarnp were wonnded by
the high and mighty attitude of a trade rival and they went back to
the market in a state of turmoil. They could not have paused
to
bother whether the double-barrelled gun contained one cartridge or
two a_ny more than an assailant poised to stab would bother to take a
spare knife. On such occasions when the mind is nncontrollably agitated, the assailants throw security to the winds and being momentarily
blinded by passion are indifferent to the consequences of their action.
The High Court applied to the mental processes of the respondents a
test far too rigid and unrealistic than was justified by the circumstances
of the case and concluded :
"It is noteworthy that P .W. 1 Sona Ram clearly admits
that Ganga Ram had a farm in village Naushera, which is
at a distance of two miles from Badaun. It is very likely
that the two appellants must have been going every early
morning to have a round of their vegetable farm and returning home therefrom at about 8 A.M. in the sultry month of
June. It is not surprising that on such return to Badaun on
the morning of June 7, 1970 the appellants went
to
the
· Sabzimandi in order to
purchase melons, when they were
called to the Gaddi of the deceased, ultimately resulting in
the fatal occurrence as suggested by the defence."
The High Court assumed without eividence that Ganga Ram used to
carry a gun to his vegBtable farm and the whole of the conclusion
reproduced above would appear to be based on the thin premise that
Sona Ram had admitted that Ganga Ram had a village farm situated
at distance of two miles from Badaun.
We find it impossible to agree
with the reasons given by the High Court as to why Ganga Ram and
Ram Swarup went to the market and how they happened to carry a
gun with them. It is plain that being slighted by the melon incident,
they went to the market to seek retribution.
The finding recorded by the High Court that the respondents went
to the market for a casual purchase and that they happened to have
a gun because it was their wont to carry a gun is the very foundation
of its acceptance of the theory of private defence set up by the respondents. According to the High Court a routine visit to the market
led to an unexpected quarrel between the deceased and Ganga Ram,
the quarrel assumed the form of grappling, the grappling provoked the
servants of the deceased to beat Ganga Ram with lathis and the beating impelled Ram Swamp, to use the gun in defence of his father.
Our view of the genesis of the shooting incident must, at the very
threshold, deny to the respondents the right of private defence.
The right of private defence is a right of defence, not of retribution. It is available in face of imminent peril to those who act in
good faith 'and in no case can the right be conceded to a person who
stage-manages a situation wherein the right can be used as a shield
to justify an act of aggression. If a person goes with a gun to kill
another, the intended victim is entitled to act in self-defence and if he
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U.P. STATE v. RAM SWARUP (Chandrachud, J.)
415
so acts there is no right in the former to kill him in order to prevent
him from acting in self-defence.
While providing for the right of
pri\'ate defence, the Penal Code has surely not devised a mechanism
whereby an attack may be provoked as a pretence for killing.
Angered by the rebuff given by tbe deceased while declining to sell
the melons, Ganga Ram went home and returned to the
market
with the young Ram Swamp who, ou the finding of tbe High Court,
carried a gun with him.
Evidently, they went to the market with a
pre-conceived design to pick up a quarrel. What semblance of a right
did they then have to be piqued at the resistance put up by the
deceased and his men ? They themselves were the lawless autbors
of the situation in which they found
themselves
and though the
Common Law doctri,ne of "retreat to tbe wall" or "retreat to tbe ditch"
as expounded by Blackstone ( 1) has undergone modification and is not
to be applied to cases where a victim, being in a place where he has
a right to be, is in face of a grave uninvited danger, yet, at least those
in fault must attempt to retreat unless tbe severity of the attack renders
such a course impossible.
The exemption from retreat is generally
available to the faultless alone.
Quite apart from the consideration as to who was initially at fault,
the extent of the harm which may lawfully be inflicted in self-defence
is limited. It is a necessary incident of the right of private defence that
the force used must bear a reasonable proportion to tbe injury tc1 be
averted, that is, the injury inflicted on tbe assailant must not be greater
than is necessary for the protection of the person assaulted. Undoubtedly, a person in fear of his life is not expected to modulate his
defence step by step or tier by tier for as Justice Holmes said in
Brown vs. United States ( 2 ) "detached reflection cannot be demanded
in the presence of an uplifted knife". But section 99 provides in terms
clear an<l categorical that "The right of private defence in no case extends to tbe inflicting of more harm than it is necessary to inflict for
the purpose of defence".
Compare for this purpose the injuries received by Ganga Ram with
the injuries caused to the deceased in tbe alleged exercise of the right
of private defence. Dr. N. A. Farooqi who examined Ganga Ram
found tbat he had four contusions on his person and that the injuries
were simple in nature. Assuming tbat Ganga Ram had received tbese
injuries before Ram Swarup fired the fatal shot, there was clearly no
justification on the part of Ram Swarup to fire from his gun at pointblank range.
Munimji was shot on the chest and the blackening and
tatooing around the wound shows that Ram swamp fired his shot from
a very close range. Under section 100 of tbe Penal Code the right of
private defence of the body extends to the voluntary causing of deatb if
the offence which occasions tbe exercise of the right is of such a nature
as may, to the extent material, reason•ably cause the apprehension
thnt death or grievous hurt will otherwise be the consequence of the
assa-.Jlt. Considering the nature of injuries received by Ganga Ram, it
(I) Blackstone's Commentaries, Book IV, p. 185.
(2t (1921) 256 U.S.
416
SUPREME COURT REPORTS
[1975] l s.c.R.
is impossible to hold that there could be a reasonable apprehension
that he would be done to death or even that grievous hurt would be
caused to him.
·
The presence of blood near the door leading to room No. 2
an<l
the pellet marks on the door frame show that Ram Swarup fired at the
deceased when the latter was fleeing in fear c~ his life. In any event,
therefore, there was no justification for killing the deceased selectively.
The right of defence ends with the necessity for it. Under section 102,
Penal Code, the right of private defence of the body commences as
soon as a reasonable apprehension ctf danger to the body arises and it
continues as long as such apprehension of danger continues. The
High Court refused to attach any significance to the pellet-marks on
the door-frame as it thought that "the gun fire which hit the chaukhat
was 11ot the one which struck the deceased". But this is in direct opposition to its own view that the respondents had loaded only one cartridge in the gun-a premise from which it had concluded that the respondents could not have gone ro the market with an evil design.
Bal!istically, there was no reason !ct suppose that the shot which killed
the deceased was not the one which hit the door frame. It is quite
clear that the deceased was shot after he had left his gaddi and while
he was about to enter room No. 2 in order to save his life.
It would be possible tel analyse the shooting incident more minu·
tely but it is sufficient to point out that under section 105 of the Evidence Act, when a person is accused of any offence, the burden of
proving the existence of circumstances bringing the case within any of
the General Exceptions in the Penal Code, is upcin him and the court
shall presume the absence of such circumstances. The High. Court
must, of course, have been cognizant of this provision but the Judgment does not reflect its awareness of the provision and this we say
not merely because sectic~ 105 as such has not been referred to in its
Judgment. The importance of the matter under consideration is that
sections 96 to 106 of the Penal Code which confer and define the
limits of the right of private defence constitute a general exception to
the offences defined in the Cede; in fact these sections are a part of
Chapter IV headed "General Exceptions". Therefore, the burden of
proving the existence of circumstances which wonld bring the case
within the general exception of the right of private defence is upon the
respondents and the court must presume the absence of such circumstances. The burden which rests on the accused to prcive that any of
the general exceptions is attracted does not absolve the
prosecution
from discharging lts initial burden and truly, the primary burden never
shifts save when a statute displaces the presumption
of ianocence;
"indeed, the evidence, though insufficient to establish the exception,
may be sufficient to negative one or more of the ingredients of the
offence(')". That is to say, an accused may fail to establish affirma·
lively the existence of circumstances which would bring the case with·
in a general exception and yet the facts and circumstances proved by
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(I) K.M. Nanm•ati vs. State of Mo/iarashtro; [1962] (I) Supp. S.C.R. p. 567 a
p. 598.
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U.P. STATE v. RAM SWARUP (Chanaraclwd, J.)
417
him while discharging the burden under section 105 of the Evidence
Act may be enough tq cast a reasonable doubt on the case of the
prosecution, in which event he would be entitled to an acquittal. ( 1)
The burden which rests on the accused to prove the exception is not of
the same rigour as the burden of the prosecution to prove the charge
beyond a reasonable doubt. It is enough for the accused to show,
as in a civil case, that the preponderance of probabilities is in favour
of his plea.(')
The judgment of one of us, Beg J., in Rishikesh Singh v. State(")
explains the true nature and effect of the different types of presumptions arising under section 105 of the Evidence Act. As stated in that
judgment, while the initial presumption regarding the absence qf circumstances bringing the case within an exception may be met by showing the existence of appropriate facts, the burden to establish a plea
of private defence by a balance of probabilities is a more difficult burden to discharge. The judgment points out that despite this position
there may be cases where, though the plea of private defence is nc1t
established by an accused on a balance of probabilities, yet the totality
of facts and circumstances may still throw a reasonable doubt on the
existence of "n1ens rea", which normally is an essential ingredient of
an offence. The present is not a case c~ this latter kind. Indeed'
realising that a simple plea of private defence may be insufficient to
explam the nature of injuries caused to the deceased, Ram Swarup·
suggested that the shot fired by him at the assailants of his father Ganga
Ram accidentally killed the deceased. We have no doubt that the act
of Ram Swarup was deliberate and not accidental.
The respondents led no evidence to prove their defence but that is
nc~ necessary because such proof can be offered by relying on the evidence led by the prosecution, the material elicited by cross-examining·
the prosecution witnesses ~nd the totality of facts and circumstances
emerging out of the evidence in the case. In view of the considerations
mentioned earlier we find it impossible to hold that Ram Swarup fired
the shot in defence of his father Ganga Ram.
The circumstances of
the case negative the existence of such a right.
The conclusion of the High Court in regard to Ram Swaruo being
plainly unsupportable and leading as it does to a manifest failure of
justice, we set aside the order acquitting Ram Swarup and restore that
of the Sessions Court convicting him under sectic111 302 of the Penal
Code.
The possibility of a scuffle, of course not enough to justify, the
killing of Munimji but bearing relevance on the sentence cannot, however, be excluded and we would therefore reduce the sentence of death
imposed on Ram Swarup by the Sessions Court to that of life imnri- -
sonment. We also confirm the order of conviction and sente.nce under
section 25(1)(a) and section 27 of the Arms Act and direct that all'
the sentences shall run cc111currently.
(!) Dahyabhai Chhaganbhai Thakker vs. State of Gujarat; (1964] 7 S.C.R. 361
(2) Dahyabhai Chhaganbhai Thakker vs. State of Gujarat; Supra; Munshi Ram
and Ors. vs. Delhi Administration, A.l.R. 1968, S.C. 702.
(3) A.LR. 1970 All. 51
41~
SUPREME COURT REPORTS
.[1975] l s.c.R.
In regard to Ganga Ram, however, though if we were to consider
his case independently for ourselves we might have come to a conclusion different from the one to which the High Court has come, the
principles gc1Verning appeals under Article J 36 of the Constitution
would require of us to stay our hands. The incident happened within
the twinkling of an eye and there is no compelling reason to differ from
the concurrent finding of the High Court and the Sessions Court that
Ganga Ram never carried the gun and that at all ·stages it was Ram
Swarup who had the gun. The finding cf. the Sessions Court that
"Ram Swarup must have shot at the deceased at the instigation of
·Ganga Ram" is based on no evidence for none of the five eye-witnesses
speaks of any such instigation, On the contrary, Shariat Ullah (P.W.
4) says that "As soon as they came, Ram Swarup opened the gun-·
fire" and Shiva Dutta Mal (P.W. 5) says that "Just after coming fctward, Ram Swamp opened the gun-fire". The evidence of the other
three points in the same direction. True that these witnesses have said
that Ganga Ram and Ram Swarup challenged with one voice the
authority of the deceased but in discarding that part of the evidence we
do not think that the High Court has committed any palpable error
requiring the interference cl this Court. Such trite evidence of expostuJatioμs on the eve of an attack is often spicy and tends to strain one's
credulity.
We therefore confirm the order of the High Court acquitting Gang< Ram of the charge under section 302 read with section 34
of the Penal Code.
The High CclUrt was clearly justified in acquitting Ganga Ram of
the charge under section 307, Penal Code, in regard to the knife-attack
on Nanak Chand. Nanak Chand received no injury at all and the
~tory that the knife-blow missed Nanak Chand but caused a cut on his
kurta and Randi seems incredible.
The High Court examined these
clothes but found no cut marks thereon. Tears there were on the Kurta
and Randi but it is their customary privilege to be torn.
With that,
the conviction and sentence under the Arms Act for possession of the
knife had to fall.
There is no substance in the charge against Ganga Ram under
section 29(b) of the Arms Act because he cannot be said to .have
delivered his licensed gun to Ram Swarup. The better view is that
Ram Swarup tocik it.
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We, therefore, confirm the order of acquittal in favour of Ganga
Ram on all the oounts.
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This disposes of the appeal on merits.
Mr. Garg had raised a preliminary objection to the maintainability
·of this appeal which, we thc1Ught, was devoid of substance and could
briefly be dealt with at the end of the judgment. He argues that the
State Government has no locus standi to file in this Court an appeal
against an order of acquittal passed by the High Court because no snch
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right is conferred by the Code of Criminal Procedure or by the CcltlStitution and there can be no right of appeal unless one is clearly given
by statute.
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U.P. STATE v. RAM SWARUP (Chandrachud, !.)
419
The Code of Criminal Procedure does not provide for an appeal to
this Court. In Chapter XXXI ("Of Appeals"), the only reference to
an appeal to the Supreme Court is to be found in section 426(2B)
which empowers the High Cc!Uft to suspend the sentence and enlarge
an accused on bail if the Supreme Court has granted to him special
leave to appeal against any sentence which the High Court has imposed
or maintained. But by section 41 7 ( 1) of the Code 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. It is in pursuance
of this power that State Governments file appeals in the High Court
against orders of acquittal passed by oourts subordinate to the High
Court.
Article 132(1) of the Constitution provides that an appeal shall lie
to the Supreme Court from any judgment, decree or final order of a
High Court, whether in a civil, criminal or other proceeding, if the
High Court certifies that the case involves a substantial question of Jaw
as to the interpretation of the Constitution. Where the High Court has
refused to give such a certificate, the Supreme Court may under clause
(2) of Article 132 grant special leave to appeal if it is satisfied that
the case involves a substantial question of law as to the interpretation
of the Constitution. Where such a certificate is given or special leave
is granted, "any party in the case" may, under clause (3) of the Article,
appeal to the Supreme Court qn the ground that any question of the
aforesaid description has been wrongly decided and with the leave of
the Supreme Court, on any other ground.
U11dcr Article 134(1) of the Constitution an appeal lies to
the
Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court if the High Court (a) has in1 appeal
reversed any order of acquittal of an accused person and has sentenced
him to death; or (b) has withdrawn for trial. before itself any case from
a court subordinate to it and has sentenced the accused to dea'h; or
(cl certifies that the case ls a fit one for appeal to the Supreme Court.
By Article 136 (1) the Supreme Court may notwithstanding anything contained in Chapter IV ("The Union Judiciary"), grant special
leave in its discretion to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any
court or tribunal in India.
.
. Article 132 ( 3) referred tel above shows that where the High Court
certifies that the case involves a substantial question of law as to the
interpretation o:t the Constitution or the Supreme Court grants special
leave .to appeal on the ground that the case involves such a question.
"any party in the case" may appeal to the Supreme Cclllrt. It is incontrovertible that if the State Government is imoleaded to an appear
in the High Court as a contending party, it would be a "party in the
case" and therefore if the decision is adverse to it, it would be entitled
to appeal on the conditions menticined in Article 132. This right is of'
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SUPREME COURT REPORTS
[1975] l s.c.R.
.course limited to cases in which a substantial question of law as to the
interpretation of the Constitution is involved.
Article l 34 (1) extracted above shows that if the . High
Court
.reverses an order of acquittal and sentences the accused to death, he
can appeal to the Supreme Court as a matter of right. A similar right
is available to an accused whose case is withdrawn for trial by the High
Court and who on being convicted is sentenced to death. In a case
falling under Article 134(1)(a), the appeal against acquittal
w~ld
normally be filed in the High C<mrt by the State Government under
section 417 (1) of the Code of Criminal Procedure. It is only in cases
instituted upon complaint that the complainant can ask for special
leave to appeal from the ordef c~ acquittal. If the State Government
files in the High OJurt an appeal against an order of acquittal passed
by the lower court and if in such an appeal the accused is sentenced to
death, it seems to us patent that if the accused files an appeal in the
Supreme Court against the judgment of the High Court, the State
·Government would be entitled to defend the appeal as a respondent
interested in the decision of the High Court. In an appeal falling
under Article 134{1){b) also it is the State Government which would
be interested in and entitled to defend the appeal in the Supreme Court.
The circumstance that Article 134 does not refer to the right ct the
·state Government tci defend such appeals cannot be construed as
depriving it of that right.
If in an appeal against a conviction the High Court acquits an
accused or if in an appeal by the State Government against an order of
acquittal the High Court confirms the order of acquittal, it is the State
·Government which, if at all, would be aggrieved by the order ct acquittal and it would therefore be entitled to challenge the order in a further
appeal if any such appeal is provided by law. The right of appeal is
a creature of statute and if the law provides for no further appeal the
matter has to rest where it stands. But if the Constitution prclvides for
an appeal against a judgment or order, the party aggrieved or affected
by that judgment or order would be entitled to avail of the right or
facility of appeal, though on the conditicns prescribed by the Constitution.
Under Article 136(1) of the Constitution this Court has a wide
discretion, though sparingly exercised, to grant special leave to appeal
·from any judgment, decree, determination, sentence or ctder. This
remedy can be availed of by any party which is affected adversely by the
decision under challenge. If the State Government is a contesting party
to a matter disposed of by the High Court and if it is aggrieved by the
judgment or order of the High Court, it is entitled under Article
136(1) to ask fer special leave of this Court to appeal from the decisi<Jn of the High Court. It is, of course, not entitled to obtain leave
but that is a separate matter because under Article 136(1) no party
is entitled to obtain leave as a matter of right.
"The Supreme Court
may, in its discretion, grant special leave to appeal" and cne of the
,relevant considerations in granting leave is whether the party seeking
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U.P. STATE v. RAM SWARUP (Chandrachud, J.)
421
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leave is ag&rieved by the impugned decision, in which case it would, at
any rate, have locus to ask for leave ..
The locus standi of State Governments to file appeals in this Court
against judgments or orders rendered in criminal matters, particularly
those commenced otherwise than on private complaints, has been 1ecognised over the years and for a valid reason. All crimes raise problems
of law and order and some raise issues of public disorder. The effect
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of crime on the ordered growth of society is deleterious and the State
GC1vernments are entrusted with the enforcement and execution of laws
directed against prevention and punishment of crimes. They have,
therefore, a vital stake in criminal matters which explains why all
publie prosecutions are initiated in the name of the Government. The
objection of Mr. Garg that the State Government has no locus standi
to file this appeal must be rejected.
P.H.P.
Appeal dismissed.