IMPORTANT POINT
Where the attacks were not premeditated as for several hours, the parties were discussing their respective stands, the plea of right of private defence cannot be negatived.

Headnote:Indian Penal Code, 1860-Sections 304-II, 323, 447, 96 to 105-Assault in private defence-Accused P hit on head of deceased and accused D on his shoulder by different kinds of sticks-Other accused started assaulting the deceased when he fell down unconscious-Incident seen by PWs when they were there ploughing the field with deceased-Accused claimed that the field belonged to them-Trial Court held that the land was in possession of complainant side, though revenue records were in favour of accused appellants-Acquittal recorded for offence under Section 447 IPC-Accused persons had sustained injuries-Plea of private defence-Whether available-(Yes)-Trial Court held that though right of private defence was available, it was exceeded-Conviction of respondents for offences under Section 304-II and 323 IPC-High Court held that accused persons had exercised right of private defence and had not exceeded it-Whether acquittal of accused was sustainable-(Yes).
       Held : 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. 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 arises from an attempt, or threat, or commit the offence, although the offence may not have been committed but not until that there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. (Paras 7 and 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-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 a finding of fact. Though acquittal in respect of offence punishable under Section 447 IPC is not always determinative of the question whether right of private defence has been exceeded, in a given case the same assumes importance as in the present case. It has been significantly noted by both the Courts below that the attacks were not premeditated. On the contrary, for several hours, the parties were discussing their respective stands (may be with some amount of verbal aggression), and that aspect has indelible importance while assessing the basic issue regarding exercise of the right of private defence. (Para 10)

JUDGMENT

Arijit Pasayat, J.-These appeals are by the informant and the State of Rajasthan questioning the correctness and legality of judgment of the High Court of Rajasthan at Jodhpur directing acquittal of the respondent-accused persons.

2. The factual antecedents which the prosecution unfolded during trial are as follows:-

There was long-standing litigation between Mohan Singh (hereinafter referred to as the deceased ) and his brother and other relatives on one hand and the accused persons on the other. On 10.6.1984, the fateful day in the morning hours deceased-Mohan Singh and his brother Bherusingh (PW-2) and other relatives were ploughing the disputed land. Accused-respondents Poonam Singh, Harisingh, Devaram, Gamna and 12 others acquitted by Trial Court told them not to do so. They asserted that the field belonged to them and they will not allow the complainant side to plough the field. For a long time assertions and counter-assertions went on. Thereafter accused Poonamsingh hit on the head of Mohansingh with a lavali (kind of stick) and accused-Devaram hit on his shoulder by a Bewadi (form of stick) due to which, he having become unconscious fell down. Thereafter accused persons started assaulting and inflicting injuries. The incident was seen by Godawari (PW-4), Arjunsingh (PW-16), Geeta (PW-13), Babusingh (PW-21), Bherusingh (PW-2) and others. They were also injured being assaulted by the accused persons. After this first information report was lodged by Bheru Singh at about 8.30 p.m. and investigation was undertaken. Mohan Singh was admitted in the Pali Hospital for treatment and subsequently he breathed his last on 11.6.84 around 11.00 a.m.

3. In order to substantiate its version the prosecution examined 34 witnesses. The accused persons pleaded innocence and examined 4 witnesses. On consideration of evidence on record, the Trial Court came to hold that the land was in possession of the complainant side, though revenue records were in favour of the accused-appellants with their companions. Having held so, it was observed that all the accused were to be acquitted of the charges under Section 447 of the Indian Penal Code, 1860 (in short IPC ). It was held that though right of private defence was available, it was exceeded. Even though the accused persons had sustained injuries, yet the maximum they could have done was to exercise the right of private defence by inflicting simple injuries. Ultimately, it was held that present respondents were guilty of offences punishable under Sections 304 Part-II and 323 IPC for causing death of Mohansingh and inflicting injuries on Godawari (PW-4). The conviction and sentences were challenged by the four respondents-accused. The State did not challenge the acquittal or the alteration of conviction. Similar was the position vis-a-vis the informant.

4. The High Court by the impugned judgment held that the case was one where the accused persons had exercised the right of private defence and had not exceeded it. The fact that the accused persons received injuries was considered to be of great significance. The acquittal in respect of offences relatable to Section 447 was also considered to be of vital importance in deciding the question about the right of private defence. Accordingly it was held that the accused persons were entitled to exercise the right available in respect of private defence. Both the State and the informant have questioned the High Court s conclusions.

5. In support of the appeals, learned counsel for the State and the informant submitted that the parameters of right of private defence as provided in IPC have been completely lost sight of by the High Court. It was, therefore, submitted that the High Court was not justified in directing acquittal. In addition, learned counsel for the informant submitted that though the Trial Court appears to have observed that the right of private defence was available to the accused persons, yet it was contrary to the findings recorde

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2003 Supreme(SC) 878

IMPORTANT POINTWhere the attacks were not premeditated as for several hours, the parties were discussing their respective stands, the plea of right of private defence cannot be negatived.

Cases Referred (11)

IMPORTANT POINT
Where the attacks were not premeditated as for several hours, the parties were discussing their respective stands, the plea of right of private defence cannot be negatived.