2007 Supreme(SC) 1087

2007(5) Supreme 836
Supreme Court of India
(From Madras High Court)
Dr. Arijit Pasayat & D.K. Jain, JJ.
Jesu Asir Singh & Ors. — Petitioners
versus
State through Inspector of Police — Respondent
Appeal (Crl.) 1090 of 2007
(Arising out of SLP (Crl.) No. 3611 of 2006)
Decided on : 20-08-2007

important points
Injuries on the body of the accused persons and their number may not necessarily raise a presumption that the accused persons had caused injuries in exercise of the right of private defence.
In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting.

Headnote:(a)Indian Penal Code, 1860 – Section 96 – Injuries on the body of the accused persons and their number may not necessarily raise a presumption that the accused persons had caused injuries in exercise of the right of private defence – It has to be established that the injuries so caused on the accused probabilises 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 – 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 creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries, mere non-explanation of the injuries by the prosecution may not affect the prosecution case. (Para 8)

       AIR 1976 SC 2263 – Relied upon.

       (b)Indian Penal Code, 1860 – Section 96 – A plea of right of private defence cannot be based on surmises and speculation – In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting – 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 and 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. (Paras 8 and 9)

       AIR 1963 SC 612; (2003)7 SCC 643 – Relied upon.

       (c)Indian Penal Code, 1860 – Section 96 – Merely because there was a quarrel and some of the accused persons sustained injuries, that does not confer a right of private defence extending to the extent of causing death as in this case – No evidence, much less cogent and credible, having been adduced in this regard, right of private defence, as claimed by the accused persons, has been rightly discarded. (Para 11)

       (d)Indian Penal Code, 1860 – Section 302 – Even if High Court found the evidence to be not sufficient to convict A4 that does not in any way affect credibility of PW 1’s evidence so far as present appellants are concerned – The cross-examination of PW1 to a great extent probabilises the prosecution version – Though questions put in cross-examination are not always determinative in finding an accused guilty, they are certainly relevant. (Para 12 and 13)

       Facts of the case :

       The occurrence took place at about 06.30 a.m. on 18.09.1993, by Al to A4 who wrongfully restraining Gift (the deceased) and in course of the same transaction at the instigation of A4, Al to A3 attacked him fatally, resulting in his death. A4 is mother of Al to A3. PW-1 is the informant. PW 4 is the mother of PW.1. PW.4 and A4 are sisters. PW.5 is the wife of Al. PW5s sister is Jenitha, who was the wife of deceased. There was prior enmity between the two families and they were not in talking terms. This was because Jenitha, wife of the deceased started living with AI by deserting her husband.

        The deceased married Jenitha about 1year prior to the occurrence and a female child was born to them. The two families were not in talking terms a month prior to the occurrence. Thereafter, the deceased and his child were living only with PW.1. On 10.9.1993 deceased went to the house of Al and asked his wife to come back with him and there a quarrel arose. At about 5.00 p.m. on that day, all the four accused came to the house of PW-1 and asked her the whereabouts of the deceased and also told her that in their absence the deceased had called his wife and, therefore, he must mend his ways. Raja is her son and as he fell sick, and was admitted in the hospital on 17.9.93 and by his bed side PWs 1, 4 and the deceased were in the hospital. At about 6.30 a.m. on 18.9.93, PW.1 and the deceased came home to take some coffee to the hospital and near the house of PW 2 when the accused came from the opposite direction; Al to A3 were armed with weapons, on seeing them the deceased, out of fear, left the cycle and started running by a lane near the house of PW.2. Seeing that A4 orally declared that as he is running, he should not be allowed to run and must be killed. Her brother, i.e. the deceased, thereafter passed the house of PW.2 and at that stage Al to A3 restrained him; Al cut him twice on his head and when her brother attempted to thwart by stretching his arms, A2s attack fell on his right hand, this was followed by A3 indiscriminately cutting on the other parts of his body and as they were so cutting, one of the attacks aimed by A2 landed on the left wrist of A1 and the attack aimed by A3 landed on the right hand of A1. She shouted and PW 2 came running; at that time, all the accused made good their escape with the weapons of offences in their hands. She went to the house to get some money to take her brother to the hospital, where she found her house damaged; doors, windows and other things were broken; two of her brother’s friends, namely, Aaroon, Singh came there and with their help she took her brother to the Government Hospital Kottar, where he was pronounced dead.

        Trial court placed reliance on the evidence of PW 1 and found all the four persons guilty. An appeal was preferred by the appellants taking the view that the evidence of PW 1 was not believable. The High Court analysed the evidence of PW 1 and held that investigation in respect of Exhibit P20 was conducted properly and the prosecution version did not get affected even if it is held that there was some lapse in conducting investigation on the basis of Exhibit P20. The plea of right of private defence was also described. However, the High Court accepted that evidence was not sufficient to convict A4.

       Findings of the Court :

       Even if High Court found the evidence to be not sufficient to convict A4 that does not in any way affect credibility of PW 1’s evidence so far as present appellants are concerned.

       No evidence, much less cogent and credible, having been adduced in this regard, right of private defence, as claimed by the accused persons, has been rightly discarded.

       Result : Appeal dismissed.