SUPREME COURT OF INDIA
Shajahan & Ors.
Vs.
State of Kerala & Anr.
Crl.A.No.262 of 2007
(Arijit Pasayat and R.V.Raveendran,JJ.,)
26.02.2007
JUDGMENT
Arijit Pasayat, J.
1. Leave granted.
2. The appellants call into question the legality of the judgment rendered by a
Division Bench of the Kerala High Court while partially altering the conviction
of Nujum (Appellant no.2) who is, hereinafter referred to for the sake of
convenience as A2 and maintaining the conviction of Shajahan (appellant No.1
for short A1), Manzoor (A3) and Musthafa (Appellant No. 4 for short A-4) under
Section 323 read with Section 34 IPC. A-2 was convicted in terms of Section 304
Part II of the Indian Penal Code, 1860 (in short the 'IPC') instead
of Section the conviction under Section 302 IPC by the trial Court, and
sentenced to undergo rigorous imprisonment for five years. The conviction of A2
and the sentence for offence, punishable under Section 324 Part I IPC, was not
interfered with.
3. The prosecution version as unfolded during trial was as follows:
4. The accused who are closely related to each other were harbouring extreme
enmity towards Ashraf (PW-5) and his younger brother Abdul Samad (hereinafter
referred to as 'deceased'). On 18.9.1994 at or about 1.50 P.M. at
Kulasekharapuram in Adinadu Village, Punnakulam Muri and to the south of
Puthentheruvu junction near the eastern boundary of the paramba of Laila, (the
sister of PW5 and the deceased) accused in furtherance of their common
intention to voluntarily cause hurt to the aforesaid brothers with dangerous
weapons attacked them. A1 pulled the deceased by catching hold of his legs,
Nujum-A2 stabbed him with M.O.1 knife, A4 cut him with M.O.2 chopper. When PW5
intervened to rescue the deceased, Musthafa-A4 inflicted a cut injury on PW5
with M.O. Â 2 ch 2 inflicted a stab injury on Shuhra Beevi (PW1) with
M.O.1 knife and Manzoor-A3 assaulted PW5 using his hands. The deceased
succumbed to the injuries and injured PW5 was admitted in the hospital. The accused
thereby committed offences punishable under Sections 302 and 324 read with
Section 34 IPC.
5. The allegations against them were as follows:-
6. Shajahan-A1 had caught hold the lefts of deceased facilitating A2 for
stabbing him. A2 not only stabbed the deceased but also inflicted injuries on
PW1. Manzoor-A3 assaulted the deceased. Musthafa-A4 assaulted the deceased with
the chopper and also caused injury on PW-5
.7. On considering the evidence of the witnesses more particularly the evidence of PW-1 and PW-5 the accused persons were found guilty as follows:
8. A2 was guilty of offence punishable under Section 302 and Section 324 IPC.
A1, A3 and A4 were guilty for offences punishable under Section 323 read with
Section 34 IPC. A3 was a student and was released on probation for the
conviction under Section 323 IPC.
9. In appeal, the High Court held that the accusations were established so far
as A1, A3 and A4 are concerned. It further held that it would be appropriate to
convict A2 for offence punishable under Section 304 Part II IPC instead of
Section 302 IPC and custodial sentence of five years was awarded. The sentence
awarded toA2 in respect of Section 324 IPC was maintained.
10. In support of the appeal, learned counsel for the appellant submitted that
the injuries on the accused were not explained. The investigating officer
accepted that there were injuries but he did not focus the investigation on
that aspect. Once the exercise of right of private defence was partially
accepted, the conviction as recorded cannot be maintained.
11. Learned counsel for the appellants submitted that the incident took place
in the property of the accused and the High Court accepted that up to a certain
extent the right of private defence was exercised. But the High Court wrongly
observed that the appellants continued the attack. Same is wrong as according
to the factual position only one below was given.
12. Learned counsel for the respondent-State on the other hand supported the
impugned judgment.
13. It is to be noted that during the pendency of the appeal appellant No.1 has
expired. So the appeal stands abated so far as he is concerned. Appellant No.3
i.e. Musthafa has already suffered the sentence and the appeal is not pressed
so far as he is concerned.
14. We shall first deal with the question regarding non-explanation of injuries
on the accused. The issue is if there is no such explanation what would be its
effect? We are not prepared to agree with the learned counsel for the defence
that in each and every case where prosecution fails to explain the injuries
found on some of the accused, the prosecution case should automatically be
rejected, without any further probe. In Mohar Rai and Bharath Rai v. The
State of Bihar1 ,
it was observed:"...In our judgment, the failure of the prosecution to
offer any explanation in that regard shows that evidence of the prosecution
witnesses relating to the incident is not true or at any rate not wholly true.
Further those injuries probabilise the plea taken by the appellants."
15. In another important case Lakshmi Singh and Ors. v. State of Bihar 2,
after referring to the ratio laid down in Mohar Rai's case (supra), this Court
observed:
"Where the prosecution fails to explain the injuries on the accused, two
results follow:
(1) That the evidence of the prosecution witnesses is untrue; and (2) that the
injuries probabilise the plea taken by the appellants."
16. It was further observed that:
"In a murder case, the non-explanation of the injuries sustained by the
accused at about the time of the occurrence or in the course of altercation is
a very important circumstance from which the Court can draw the following
inferences:
(1) That the prosecution has suppressed the genesis and the origin of the
occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the
person of the accused are lying on a most material point and, therefore, their
evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the
person of the accused assumes much greater importance where the evidence
consists of interested or inimical witnesses or where the defence gives a
version which competes in probability with that of the prosecution one."
17. But non-explanation of the injuries sustained by the accused may assume
greater importance where the defence gives a version which competes in
probability with that of the prosecution. But where the evidence is clear,
cogent and creditworthy and where the Court can distinguish the truth from
falsehood the mere fact that the injuries are not explained by the prosecution
cannot by itself be a sole basis to reject such evidence, and consequently the
whole case. Much depends on the facts and circumstances of each case. These
aspects were highlighted by this Court in Vijayee Singh and Ors. v. State of
U.P.3.
18. Non-explanation of injuries by the prosecution will not affect the prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it outweighs the effect of the omission on the part of prosecution to explain the injuries. As observed by this Court in Ramlagan Singh v. State of Bihar 4prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In Hari Krishna Singh and Ors. v. State of Bihar5, it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature. In the case at hand, trifling and superficial injuries on accused are of little assistance to them to throw doubt on the veracity of the prosecution case. (See Surendra Paswan v. State of Jharkhand6 and Anil Kumar v. State of U.P7.. A bare perusal of the injury report shows that injuries were of very minor nature. The stand of the accused was that he was attacked by an iron rod but the injuries ruled out that stand. It is fairly conceded that there was no case instituted against the deceased or prosecution witnesses.
20. The only other question which needs to be considered, is the alleged
exercise of right of private defence. Section 96, IPC provides that nothing is
an offence which is done in the exercise of the right of private defence. The
Section does not define the 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 legitimately
acted in the exercise of the right of private legitimately acted in the
exercise of the right of private defence is 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. It is 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
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 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 of self-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 eliciting necessary facts
from the witnesses examined for the prosecution. An accused taking the plea of
the right of private defence is not necessarily required 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 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 accused. The burden of establishing the plea
of self-defence is on the accused and the burden stands discharged by showing preponderance
of probabilities in favour of that plea on the basis of the material on record.
(See Munshi Ram and Ors. v. Delhi Administration8, State
of gujarat v. Bai Fatima9, State
of U.P. v. Mohd. Musheer Khan10 ,
and Mohinder Pal Jolly v. State of Punjab11.
Sections 100 and 101 define the extent of the right of 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 assault. The
oft-quoted observation of this Court in Salim Zia v. State of U.P.12,
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, 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."
21. The accused need not prove the existence of the right of private defence
beyond 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.
22. The number of injuries is not always a safe criterion for determining who
the aggressor was. It cannot be stated as a universal rule that whenever the
injuries are on the body of the accused persons, a presumption must necessarily
be raised that the accused persons had caused injuries in exercise of the right
of private defence. The defence has to further establish that the injuries so
caused on the accused probabilise the version of the right of private defence.
Non-explanation of the injuries sustained by the accused at about the time of
occurrence or in the course of alteration is a very important circumstance. But
mere non-explanation of the injuries by the prosecution may not affect the
prosecution case in all cases. This principle applies to cases where the
injuries sustained by the accused are minor and superficial or where the
evidence is so clear and cogent, so independent and disinterested, so probable,
consistent and credit-worthy, that it far outweighs the effect of the omission
on the part of the prosecution to explain the injuries. [See Lakshmi Singh
v. State of Bihar13. 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
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 of property
(i) of the person exercising the right; or (ii) of any other person; and the
right may be exercised in the case of any offence against the body, and in the
case of offences of theft, robbery, mischief or criminal trespass, and attempts
at such offences in relation to property. Section 99 lays down the limits of
the right of private defence. Sections 96 and 98 give a right of private
defence against certain offences and acts. The right given under Sections 96 to
98 and 100 to 106 is controlled by Section 99. To claim a right of private
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 grievous 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, IPC define the limit and extent of
right of private defence.23. Sections 102 and 105, IPC deal with commencement
and continuance of the right of private defence of body and property
respectively. The right commences, as soon as a reasonable apprehension of
danger to the body continues. In Jai Dev. v. State of Punjab14 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 can be
no occasion to exercise the right of private defence.
24. In order to find whether right of private 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 recourse to public authorities are all relevant factors to be
considered. Similar view was expressed by this Court in Biran Singh v. State
of Bihar15 . (See: Wassan Singh v. State of Punjab16, Sekar
alias Raja Sekharan v. State represented by Inspector of Police, T.N.17.
25. As noted in Batu Singh v. The State of Punjab18 a
person who is apprehending death or bodily injury cannot weigh in golden scales
in the spur of moment and in the theft of circumstances, the number of injuries
required to disarm the assailants who were armed with weapons. In moments of
excitement and disturbed 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 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
weight age 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-preservation, what really has been done is to assault the original
aggressor, even after the cause of reasonable apprehension 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.26. 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.P19..
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 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 objectivity which would be so natural in
a Court 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 circumstances.
27. In the illuminating words of Russel (Russel on Crime, 11th 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 stands but may indeed
pursue his adversary until the danger is ended and if in a conflict between
them he happens to kill his attacker, such killing is justifiable."
28. The right of private defence is essentially a defence right circumscribed
by the governing statute i.e. the IPC, available only when the circumstances
clearly justify it. It should not be allowed to be pleaded or availed as a
pretext for a vindictive, aggressive or retributive purpose of offence. It is a
right of defence, not of retribution, expected to repel unlawful aggression and
not as retaliatory measures. While providing for exercise 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 need to defend no longer
survived.29. The above position was highlighted in State of M.P. V. Ramesh 20.
30. Above being the position, the judgment of the High Court does not suffer
from any infirmity to warrant interference. Therefore, the appeal is dismissed.
Judgment Referred.
1(1968) 3 SCR 0525
2(1976) 4 SCC 0394
3AIR (1990) SC 1459
4AIR (1972) SC 2593
5AIR (1988) SC 0863
6(2003) 8 Supreme 0476
7JT (2004) 8 SC 0355
8AIR 1968 SC 0702
9AIR 1975 SC 1478
10AIR 1977 SC 2226
11AIR 1979 SC 0577
12AIR 1979 SC 0391
13AIR 1976 SC 2263
14AIR 1963 SC 0612
15AIR 1975 SC 0087
16(1996) 1 SCC 0458
17(2002) 8 SCC 0354
18AIR 1991 SC 1316
19AIR 1971 SC 1857
20(2005) 9 SCC 0705