2005 Supreme(SC) 400

2005(2) Supreme 413
Supreme Court of India
(From Madras High Court)
Arijit Pasayat & S.H. Kapadia, JJ.
V. Subramani & Anr. —Appellants
versus
State of Tamil Nadu —Respondent
Criminal Appeal No. 378 of 2005
(Arising out of SLP (Crl.) No. 2311 of 2004)
Decided on 3-3-2005
Counsel for the Parties :
For the Appellants : Ranjit Kumar, Sr. Advocate, V.G. Pragasam and T. Harish Kumar, Advocates.
For the Respondent : Abhay Kumar and Subramonium Prasad, Advocates.

Important point
Right of private defence is essentially a defensive right circum­scribed by governing statute, available only when circumstances clear­ly justified it and should not be allowed to be pleaded or availed as a pretext for a vindictive, aggressive or retributive purpose of offence.

Headnote:Indian Penal Code, 1860—Section 302—Two appellants convicted under while other two were convicted under Section 324 IPC taking into account individual overt acts of accused—Plea of right of private defence—Wife of A6 and mother of A4 were alleged to have been as­saulted and in the process accused assaulted deceased with stick on his head—Only question for consideration was the alleged exercise of right of private defence—If circumstances showed that right of pri­vate defence was legitimately exercised, Court could consider such a plea—Burden was on accused to prove exercise of the right—Number of injuries was not always a safe criterion for determining who the aggressor was—Right commences as soon as a reasonable apprehension of danger to body arises from an attempt or threat to commit offence—Right lasts so long as reasonable apprehension of danger to body continues—Right of private defence was essentially a defensive right—Accused-appellant could not be said to have established exer­cise of right of private defence—Only single blow was given on head of deceased by small wooden yoke—Conviction was liable to be altered from under Section 302 IPC to 304 Part I IPC and sentence of 10 years imprisonment awarded.

       Held : Whether in a particular set of circum­stances, a person 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. (Para 11)

       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 altercation 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. (Para 12)

       The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat, to commit the offence, al­though the offence may not have been committed but not until there is that reasonable apprehension. The right lasts so long as the reasona­ble apprehension of the danger to the body continues. In Jai Dev v. State of Punjab (AIR 1963 SC 612), 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. (Para 13)

       A person who is apprehending death or bodily injury cannot weigh in golden scales in the spur of moment and in the heat 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 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, as noted above, a finding of fact. (Para 15)

       The right of private defence is essentially a defensive 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 measure. 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. (Para 18)