2007 Supreme(SC) 883

2007(5) Supreme 7
Supreme Court of India
(From Calcutta High Court)
Dr. Arijit Pasayat & D.K. Jain, JJ.
Ananta Deb Singha Mahapatra & Ors. — Petitioner
versus
State of West Bengal — Respondent
Appeal (crl.) 828 of 2007
(Arising out of S.L.P.(Crl.)No.1263 of 2007)
Decided on : 06-06-2007
Counsel for the Parties :
For the Appellant : Ms. Rukhsana Choudhary, Advocate.
For the Respondent : Tara Chandra Sharma and Rajeev Sharma, Advocates.

Important POINTS
Section 96 provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression ‘right of private defence’; it merely indicates that nothing is an offence which is done in the exercise of such right.
Right to private defence extends under Section 100 to causing death if there is reasonable apprehension that death or grievous hurt would be the consequence of the assault.
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.
The right of private defence 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; and the right lasts so long as the reasonable apprehension of the danger to the body continues.

Headnote:Indian Penal Code, 1860 – Sections 96 – Section 96 provides that nothing is an offence which is done in the exercise of the right of private defence – The Section does not define the expression ‘right of private defence’, it merely indicates that nothing is an offence which is done in the exercise of such right – The deceased fell down in the Paddy field after receiving lathi blows and PW-2 went to a safe place to save his life and there was none to attack the appellants and thus there was no question of private defence. (Para 9)

       AIR 1968 SC 702; AIR 1975 SC 1478; AIR 1977 SC 2226; AIR 1979 SC 577 – Relied upon.

       Indian Penal Code, 1860 – Sections 100 and 101 – Sections 100 to 101 define the extent of the right of private defence of body and that right extends under Section 100 to causing death if there is reasonable apprehension that death or grievous hurt would be the consequence of the assault – The deceased fell down in the Paddy field after receiving lathi blows and PW-2 went to a safe place to save his life and there was none to attack the appellants–In spite of this, the appellants went on assaulting the deceased and in that process caused more harm to the deceased than was necessary to exercise the right of private defence – Thus the appellants were guilty for the death of the deceased. (Paras 9 and 10)

       AIR 1979 SC 391 – Relied upon.

       Indian Evidence Act, 1872 – Section 105 – 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 10)

       Indian Penal Code, 1860 – Sections 102 and 105 – The right of private defence 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; and the right lasts so long as the reasonable apprehension of the danger to the body continues – 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 – 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 – Thus, running to house, fetching a tabli and assaulting the deceased are by no means a matter of course – These acts bear stamp of a design to kill and take the case out of the purview of private defence – The High Court rightly rejected the plea relating to exercise of right of private defence. (Para 13 and 14)

       AIR 1963 SC 612; AIR 1975 SC 87; 2002 (7) Supreme 124 – Relied upon.

       Indian Penal Code, 1860 – Section 304 Part II – Accused was found guilty of offence u/s 304 Part II and awarded 8 years sentence – Considering the fact that the incident took place in 1990 and the background in which the occurrence took place, custodial sentence of 6 years would meet the ends of justice. (Para 15)

       Indian Penal Code, 1860 – Section 323/149 – Appellant no.3 sentenced for 6 months and has already suffered custody of 5 months – Sentence reduced to the period already undergone. (Para 16)

       Facts of the case :

       On 13.9.1990 at about 2:30 P.M. the appellants accompanied by 15 others as named in the FIR started cutting paddy from the land of the informant Niranjan Singa Mahapatra (P.W. 2) in plot no. 122/470 of mouza Dakshinbaid within P.S. Khatra. Seeing this Madhusudan Singha Mahapatra (hereinafter referred to as ‘deceased’) reached there and raised protest, and over this the accused persons assaulted on the head of the deceased with lathis and also cut the fingers of hand of the deceased with sharp sickle. Hearing the alarm by the deceased, P.W. 2 and his mother Monorama Singha Mahapatra (P.W. 4) reached there, but the accused persons also assaulted P.W. 2 and P.W. 4 and in their presence gave further blows on the head of the deceased Madhusudan Singha Mahapatra with sickles. Madhusudan Singha Mahapatra fell down on the land and thereafter, P.W. 2 with the help of the other villages brought his father and mother to the police station. The police officer on duty told them to go to the Khatra hospital and as instructed they came to the Khatra PHC. After primary treatment the doctor of the said PHC sent all the injured persons to the Bankura Medical College and Hospital where parents of P.W. 2 were admitted and P.W. 2 was discharged after primary treatment. P.W. 2 sent the written complaint FIR (ext. 2) through his brother in law Dwijapada Kar (P.W. 5) to the Khatra Police Station and on the basis of such written complaint Khatra P.S Case no. 40 dated 13.9.90 under sections 147/148/149/48/324/325/379 of IPC was started against the accused persons. The injured Madhusudan Singha Mahapatra succumbed to the injuries on 14.9.90, and thereafter, Section 304 of IPC was added and after completing the investigation Officer submitted charge sheet against the accused persons under section 147/148/149/48/324/325/379 and 304 IPC. The trial that followed ended in the conviction and sentence of the appellants.

       The High Court analysed the evidence elaborately and came to hold that the trial court’s conclusions were irreversible.

       Findings of the Court :

       High Court rightly rejected the plea of right to self defence. Appellant is guilty for death of the deceased.

       Looking to the incident having occurred in 1990 and the background of the same, custodial sentence of 6 years considered to meet the ends of justice.