1998 Supreme(SC) 216

1998(2) Supreme 65
Supreme Court of India
(From Madhya Pradesh High Court)
M.M. Punchhi, CJI, K.T. Thomas and M. Srinivasan, JJ.
Pammi @ Brijendra Singh -Appellant
versus
Government of Madhya Pradesh -Respondent
Criminal Appeal No. 451 of 1993
Decided on 12-2-1998
Counsel for the Parties :
For the Appellant : Sushil Kumar, Sr. Advocate, Vimal Dave, Shailendra Narayan Singh, Advocates.
For the Respondent : U.N. Bachawat, Sr. Advocate, Ms. Kamakshi S. Mehlwal and Uma Nath Singh, Advocates.

Important Points
1. While dealing with judgments and orders of the lower courts, the High Court should exercise judicial restraint as unsavoury remarks against a judicial personage of the lower hierarchy should be avoided.
2. The right of private defence would not enure to an aggressor and any step resorted the thwart an act of aggression is regarded as defensive act.

Headnote:(i) Criminal Procedure Code, 1973 - Section 379 - Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970-Section 2-Appeal under-Appel­lant and all other accused arrayed with him were acquitted by the Sessions Court-High Court rever­sed acquittal as against present appellant - Order challenged-Three deceased died due to bullet injuries -Appellant’s plea of right of private defence for his col­league but denial of any action for the appellant himself-Prosecution examined five eye witnesses - P.W. 6 and P.W. 9 only said that when firing took place they sustained injuries-They could not say who fired and at whom-P.W. 1, an injured witness stated that deceased received bullet injuries from the fire arms used by the appellant-P.W. 2 and P.W. 4 also said in the same manner though they did not receive any injury­-P.W. 1 mentioned names of some of the assailants including appellant even in FIR, lodged soon after the incident-Failure to hold TIP not fatal-Contention of defence that injury found on person of P.W. 1 was subsequently created not proved-High Court was justified in convicting appellant believing P.W. 1 as an eye witness to the occurrence.

       Held : The question of private defence for Santosh Singh does not arise because on the admission of the appellant himself, Santosh Singh and his henchmen (including the appellant and his father) went to the house of P.W. 5 equipped with fire arms to settle scores, though they say that they went there to have the accounts settled between them. Such an entry into the house of P.W. 5 particularly during night time is an act of aggression on the part of those who went there. At any rate, such entry was enough to instill reasonable apprehension in the mind of the occupant of the house that the accused have committed criminal trespass and they might persist in mounting up the aggres­sion. (Para 11)

       It is one of the canons of the law of right of private defence that such a right would not enure to an aggressor. Any step resorted to thwart an act of aggression is regarded as defensive act and no right of private defence can be claimed against such an act of self-defence. (Para 12)

       The Divi­sion Bench of the High Court has correctly found that evidence of the eye-witnesses in this case is not to be jettisoned merely due to the failure of the investigating officer to conduct test identification parade. This is not a case where the witnesses were seeing the appel­lant for the first time. Nobody has a case that P.W. 1 Rajendra Prasad Palia had not seen the appellant prior to the occurrence. In fact, he mentioned the names of some of the assailants including this appellant even in the First Information Statement which he lodged soon after the occurrence. P.W. 2 Vinod Kumar and P.W. 4 Ashok Kumar Sharma have also said that they knew the appellant earlier. If their evidence is found believable, then there is no warrant for the reasoning that failure to hold test identification parade had vitiated the evidence of those three eye-witnesses. (Para 13)

       We are in agreement with the reasons advanced by the High Court for believing that P.W. 1 was an eye-witness to the occurrence and he sustained injury from the appellant during the course of the occur­rence. Evidence of P.W. 1 that it was the appellant who fired at deceased Suresh Palia does not suffer from any infirmity. There is no reason to reject his testimony. (Para 18)

       The mere fact that P.W. 1 in the injured condition did not mention the names of all the eye-witnesses when he gave the first information statement is no ground to frown at the evidence of P.W. 2 and P.W. 4. The High Court cannot be said to have gone wrong in acting on the testimony of those two witnesses which was subjected to rigorous cross-exami­nation and no material has been elicited to doubt their presence. At any rate, as it relates to appreciation of evidence, we are not taking a different view from what the High Court has taken about that. (Para 19)

       (ii) Criminal Trial - Private Defence-Plea of-Such a right not available to an aggressor-Any step resorted to thwart an act of aggression is regarded as defensive-No right of private defence can be claimed against such an act of self defence. (Para 12)

       (iii) Judicial Restraint -Disparaging remarks hurled against the trial Judge-Need to exercise judicial restraint emphasised-High Court should avoid unsavoury remarks against a judicial personage of the lower hierarchy. (Paras 8 to 10)