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SUPREME COURT OF INDIA
M.H. BEG, Y.V. CHANDRACHUD AND V.R. KRISHNA IYER, JJ.
State of U.P., Appellant
Versus
Ram Swarup and another, Respondents.
Criminal Appeal No. 192 of 1972, D/- 3-5-1974.
Held, that under Art. 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 order. This remedy can be any party which is affected adversely by the decision under challenge. If the State Govt. is a contesting party to a matter disposed of by the High Court, it is entitled tinder Art 136 (l) to ask fur special leave to appeal to this Court from the decision of the High Court. It is, of course not entitled to obtain leave but that is a separate matter because under Art. 136 (l) no party is entitled to obtain leave as a matter of light. "The supreme Court may, in its direction, grant special leave to appeal" and one of the relevant consideration in granting leave is whether the party seeking leave is aggrieved by the impugned decision, in which case it would, at any rate, have locus to ask for leave. (Para 35)
Criminal Trial-Burden of proof-Burden whether shifts on to the accused - Court whether can consider right of private defence upon evidence even if not specifically Pleaded by the accused.
Held, that 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 not until it does so can the question arise as to whether the accused has acted in self defence. The accused may not plead that he acted in self-defence and yet the court may find from the evidence of witnesses examined by the prosecution and circumstances of the case either that what would otherwise be an offence is not one because the accused has acted within the strict confines of his right of private defence or that the offence is mitigated because the right of private defence has been exceeded. (Para 9)
Evidence Act (1 of 1872), Sec. 105-Plea that case falls within exceptions - On whom the burden lies-Burden of proof whether of the same rigour as the burden of the prosecution to prove its charge beyond reasonable doubt.
Held, that under sec. 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 exception in the Penal Code, is upon him and the court shall presume absence of such circumstances. The burden which rests on the accused to prove that any of the general exception is attracted docs not absolve the prosecution from discharging its initial burden and truly the primary burden never shifts save when a statute displaces the presumption of innocence. An accused may fail to establish affirmatively the existence of circumstances which would bring the case within a general exception and yet the facts and circumstances proved by him while, discharging the burden u/s 105 of the evidence Act, may be enough to cast a reasonable doubt on the case of the prosecution, in which event he would be entitled to an acquittal. 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 (1962 (1) Supp. SCR 567, (1964) 7 SCR 361 & AIR 1968 SC 702 ref. (Para 18)
Penal Code (Act XLV of 1860) Sec.96 & 100-Right of private defence-Principles of-circumstances under which the right of private defence of body extends to causing death.
Held, that 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 the right be conceded to a person who stage-manages a situation where in the right can be used as a shield to justify an act of aggression.
Quite apart from the consideration as to who was initially at fault, the extent of 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 the injury to be averted, that is the injury inflicted on the assailant must not be greater than is necessary for the protection of the person assaulted.
U/s 100 of the Penal Code the right of private defence of the body extends to the voluntary causing of death if the offence which occassions the exercise of the right is of such a nature as may, to the extent material, reasonably cause the apprehensions that death or grievous hurt will otherwise be the consequence of the assault. (Paras 13, 15 & 16)
Judgment
CHANDRACHUD, J. :- On the morning 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, Somi and Subhash were prosecuted in connection with that incident. Ram Swarup was convicted by the learned Sessions Judge. Badaun, under Section 302, Penal 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 is regard to an alleged knife-attack to one Nanak Chand.
2. The High Court of Allahabad has acquitted Ganga Ram and Ram Swarup in an appeal filed by them and has dismissed the 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.
3. Except for a solitary year. Ganga Ram held from the Municipal Board of Badaun the contract of Tehbazari in the vegetable market from 1954 to 1969. The deceased Munimji out-bid Ganga Ram in the annual action of 1970-71 which led to the day-light outrage of June 7, 1970.
4. At about 7 a.m. on that day Ganga Ram is alleged to have gone to the market to purchase a basket of 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.
5. An hour later Ganga Ram went back to the market with his three sons, Ram Swarup, Somi and Subhash. Ganga Ram had a knife. Ram Swarup had a gun and the two others carried lathis. They 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 Swarup shot him dead at point-blank range.
6. 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 Swarup caused the death of Munimji.
7. Though there was no direct evidence of the 7 O clock incident the learned Sessions Judge accepted the prosecution case that the shooting was preceded by that incident. In coming to that conclusion that learned Judge relied upon the evidence of Sona Ram. Nanak Chand, Shanti Lal, Shariat Ullah and Shiva Dutta Mal (P.Ws. 1 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 found that these witnesses were trust-worthy and that their evidence established the case of the prosecution the learned Judge proceeded to consider whether as contended by Ganga Ram and Ram Swarup he 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.
8. The High Court disbelieved the evidence in regard to the 7 O clock incident. In any case, according to the High Court, that incident was far too trifling to lead to the shooting outrage. The High Court accepted the defence version that a scuffle had taken place between the deceased Munimji 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 :
"If Ganga Ram was being given repeated lathi blows
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