2006 Supreme(SC) 1198

2006(9) Supreme 487
SUPREME COURT OF INDIA
(From Uttaranchal High Court)
Arijit Pasayat and Lokeshwar Singh Panta, JJ.
Naveen Chandra - Appellant
versus
State of Uttaranchal - Respondent
Criminal Appeal No. 1224 of 2006
(Arising out of SLP (Crl.) No. 3227 of 2006)
Decided on 27-11-2006
Counsel for the Parties :
For the Appellant : B.S. Banthia, Advocate (A.C.).
For the Respondent : Ms. Rachna Srivastava and Jatinder Kumar Bhatia, Advocates.

IMPORTANT POINTS
1. Accused taking plea of right of private defence is not necessarily required to call evidence, he can establish his plea by reference to circumstances transpiring from prosecution evidence itself.
2. Where the offenders takes undue advantage or has acted in a cruel or unusual manner, benefit of Exception 4 of Section 300 IPC cannot be given to him.

Headnote:Indian Penal Code, 1860 - Section 302 and Fourth Exception of Section 300 and Sections 96 to 105 - Appellant convicted for murder and High Court upheld conviction - Appeal - Original accused No. 1, father of appellant, had dispute with his brother deceased over land - On the date of incident there was altercation between two families wherein deceased received injury on head - In a panchayat deceased lost his temper and abused accused No. 1 and caught hold of hand of his sister-in-law i.e. mother of appellant - Appellant rushed and injured deceased on head with weapon called ‘khukri’ and then assaulted 2nd deceased, wife of 1st deceased - Appellant then ran to house of deceased and there attacked third deceased, son of deceased No. 1 - All three victims died due to injuries sustained - Defence plea of grave and sudden provocation and right of private defence - Where offender takes undue advantage or has acted in cruel or unusual manner, benefit of Exception 4 could not be given - Blows on victims were inflicted on vital parts when they were unarmed and were given with brutality - Exception 4 to Section 300 IPC was rightly held to be inapplicable - Burden of establishing plea of self-defence was on accused but it could be discharged by showing preponderance of probabilities - On basis of material on record - Number of injuries was not always a safe criterion to determine who the aggressor was - Right of private defence was a defensive right circumscribed by statute i.e. IPC - Appellant though exercised right of private defence, but exceeded same by continuing attack after the threat to life had ceased - Appellant was liable to be convicted u/s 304 Part I IPC and sentenced to 10 years imprisonment.

       Held : The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight; (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the fight occurring in Exception 4 to Section 300, IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties have worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression undue advantage as used in the provision means unfair advantage. (Para 10)

       Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh v. State of Rajasthan (AIR 1993 SC 2426) it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that using the blows with the knowledge that they were likely to cause death, he had taken undue advantage. In the instant case blows on vital parts of unarmed persons were given with brutality. The abdomens of two deceased persons were ripped open and internal organs come out. In view of the aforesaid factual position, Exception 4 to Section 300 I.P.C. has been rightly held to be inapplicable.(Para 11)

       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 call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself.(Para 14)

       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. 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.(Paras 15 and 16)

       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.(Para 18)

       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. (Para 20)

       Considering the background facts as highlighted above when tested in the backdrop of the legal principles noted supra the inevitable conclusion is that though the accused person was exercising right of private defence, but had exceeded the same by continuing the attacks after the threat to live had ceased.(Para 23)

       Therefore, this appears to be a case where Section 304 Part I would be the applicable provision. The conviction is altered accordingly. Ten years custodial sentence would meet the ends of justice.(Para 24)