2006 Supreme(SC) 1267

2006(9) Supreme 780
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
A.K. Mathur and D.K. Jain, JJ.
Dharam & Ors. - Appellants
versus
State of Haryana - Respondent
Criminal Appeal No. 143 of 2006
Decided on 8-12-2006
Counsel for the Parties :
For the Appellants : Jaspal Singh, Sr. Advocate, Vipin Gogia, Ms. Jaspreet Gogia, K.K. Gogna and Gurinder Pal Singh, Advocates.
For the Respondent : Rajeev Gaur ‘NASEEM’ and T.V. George, Advocates.

IMPORTANT POINT
Where accused party was the aggressor it could not claim right of self defence and such right does not include a right to launch an offensive or aggression.

Headnote:Indian Penal Code, 1860 - Sections 96 and 105 - Right of private defence - Three appellants with two other accused were convicted u/s 148, 302/149, 324/149 and 322/149 IPC - Deceased was brother of appellant and parties had dispute over agricultural land - Appellants armed with deadly weapons like spear, phali and pharsa assaulted deceased and prosecution party in the field - Deceased was taken to hospital and where he was declared brought dead - Appellants 1 and 3 suffered injuries in incident and defence plea of right of private defence was taken during trial - Trial Court rejected the defence and convicted all five accused of offence of murder and other offences - High Court upheld conviction - Appeal - Question whether or not appellants assaulted deceased and his part in exercise of right of private defence - When an individual or his property was faced with a danger and immediate aid from state machinery was not readily available that individual was entitled to protect himself and his property by use of force proportionate to injury sought to be averted - Burden would be on accused to establish the plea but it could be proved by preponderance of probability - Evidence to show that occurrence took place in the field belonging to deceased - Accused party being aggressor was not entitled to claim right of private defence - Plea of right of private defence was rightly rejected - Injury however which proved fatal was 10 cm x 3 cm x cm on parietal bone which fractured underlying bone and pierced the brain - Evidence and circumstances to show that fatal injury was not inflicted with intention to cause death or injury likely to cause death - Offence would fall u/s 304 part II and sentence of 7 years imprisonment awarded.

       Held : Thus, the basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the state machinery is not readily available, that individual is entitled to protect himself and his property. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. We may, however, hasten to add that the means and the force a threatened person adopts at the spur of the moment to ward off the danger and to save himself or his property cannot be weighed in golden scales. It is neither possible nor prudent to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not. Answer to such a question depends upon host of factors like the prevailing circumstances at the spot, his feelings at the relevant time; the confusion and the excitement depending on the nature of assault on him etc. Nonetheless, the exercise of the right of private defence can never be vindictive or malicious. It would be repugnant to the very concept of private defence. It is trite that the burden of establishing the plea of self defence is on the accused but it is not as onerous as the one that lies on the prosecution. While the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea of self defence to the hilt and may discharge the onus by showing preponderance of probabilities in favour of that plea on the basis of the material on record (See: Munshi Ram and others vs. Delhi Administration, AIR 1968 SC 702; The State of Gujarat vs. Bai Fatima and another, AIR 1975 SC 1478 and Salim Zia vs. State of Uttar Pradesh, AIR 1979 SC 391). In order to find out whether right of private defence is available or not, the injuries received by an accused, the imminence of threat to his safety, the injuries caused by the accused and circumstances whether the accused had time to have recourse to public authorities are relevant factors, yet the number of injuries is not always considered to be a safe criterion for determining who the aggressor was. It can also not be laid down as an abstract proposition of law that whenever injuries are on the body of the accused person, the presumption must necessarily be raised that the accused person had caused injuries in exercise of the right of private defence. The defence has to further establish that the injury 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 prosecutions case in all cases.(Paras 11 to 13)

       The plea of self defence has been rejected by the Trial Court, inter alia, observing that the danger was to the life of the deceased and his party and not to the appellants. However, the High Court has dealt with the issue more elaborately. Referring to the testimony of investigating officer S.I. Amardas (PW-7) and Rajinder Singh Patwari (PW-6) who had prepared the site plan (Exhibit-PC) after identification of place of occurrence by PW-10, the High Court has recorded a clear finding that the plea of the appellants that the occurrence took place on or near their tube-well had been completely demolished by the prosecution. The High Court has affirmed the finding recorded by the Trial Court that the occurrence had taken place in the fields belonging to the deceased Partap and his family. Besides, the statement of the appellants recorded under Section 313 Criminal Procedure Code, 1973, extracted above, proves their presence and participation in the fight. These two factors clearly prove that the appellants went and attacked with lethal weapons the deceased and his family members in the latters fields. We are convinced that in the light of the evidence on record they were the aggressors. Thus, being members of the aggressors party none of the appellants can claim right of self-defence. As observed herein above, right to defend does not include a right to launch an offensive or aggression. Therefore, we have no hesitation in holding that the appellants have failed to establish that they were exercising right of private defence. (Para 15)

       The injury, which proved to be fatal, is 10cmx3cmx3cm on left parietal bone which fractured the underlying bone and pierced the brain matter. We do not propose to hold that such an injury, if caused, would not attract the provisions of Section 302 IPC. Nevertheless, the question which requires serious consideration is whether having regard to the peculiar circumstances in which the incident took place and the fact that the deceased and the appellants happened to be blood relations, this particular injury, which was found to be sufficient in the ordinary course of nature to cause death in the instant case, was an injury intended by the appellants. Having regard to the nature of the injuries sustained by both the closely related parties, we are of the view that the fatal injury was not inflicted with the intention to cause death or an injury likely to cause death of the deceased. We feel that in the very nature of things, the appellants could not have entertained any intention to cause death of their brother/uncle. We are, therefore, of the opinion that the offence committed by the appellants would fall within the ambit of Section 304 Part-II IPC. Consequently, we partly allow the appeal; set aside the conviction of the appellants under Section 302 IPC and instead convict them under Section 304 Part-II IPC. Sentence of rigorous imprisonment for seven years would meet the ends of justice.(Paras 16 and 17)