2010 Supreme(Ori) 31

2010 (I) OLR (SC) — 258
DALVEER BHANDARI AND A.K. GANGULY, JJ.
Darshan Singh...Appellant
Versus
State of Punjab & Another...Respondent(s)
Criminal Appeal No. 1057 of 2002
Decided on 15th January, 2010.

Headnote:1. PENAL CODE, 1860 - Sec. 100 - Private defence - In order to justify the act of causing death of the assailant, the accused has simply to satisfy the Court that he was faced with an assault which caused a reasonable apprehension of death or grievous hurt - The question whether the apprehension was reasonable or not is a question of fact depending upon the facts and circumstances of each case - The weapon used, the manner and nature of assault and other surrounding circumstances should be taken into account while evaluating whether the apprehension was justified or not ?

       (Para - 23)

       2. PRIVATE DEFENCE - 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 - The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self creation.

       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. (Para - 33)

       3. ACQUITTAL - Setting aside of - High Court or the Appellate Court - Considerations to be made, stated.

       The High Court or the Appellate Court would not be justified in setting aside a judgment of acquittal only on the ground that the version given by the complainant is more truthful.

       In a case of acquittal, if the trial court's view is a possible or plausible view, then the Appellate Court or the High Court would not be justified in interfering with it. It is the settled legal position that there is presumption of innocence and that presumption is further fortified with the acquittal of the accused by the trial court. The Appellate Court or the High Court would not be justified in reversing the judgment of acquittal unless it comes to a clear conclusion that the judgment of the trial court is utterly perverse and, on the basis of the evidence on record, no other view is plausible or possible than the one taken by the Appellate Court or the High Court. (Paras - 61 to 62)

       4. PRIVATE DEFENCE - Principle of, stated.

       (i)Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.

       (ii)The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.

       (iii)A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.

       (iv)The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.

       (v)It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.

       (vi)In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.

       (vii)It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.

       (viii)The accused need not prove the existence of the right of private defence beyond reasonable doubt.

       (ix)The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.

       (x)A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.

       (Para - 58)

       5. PENAL CODE, 1860 - Sec. 100 - A person who is in imminent and reasonable danger of losing his life or limb may in the exercise of right of self defence inflict any harm, even extending to death or his assailant either when the assault is attempted or directly threatened. (Para - 36)

       6. PRIVATE DEFENCE - Right of - It is available only when there is reasonable apprehension of receiving the injury - It is necessary that the extent of right of private defence is that the force used must bear a reasonable proportion of the injury to be averted - It should not be totally disproportionate. (Para - 39)