LexDHARAM AND ORS. versus STATE OF HARYANA
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
DHARAM AND ORS. A v. STATEOFHARYANA DECEMBER 8, 2006 [A.K. MATHUR AND D.K. JAIN, JJ.] B Penal Code, 1860-ss.96, 97, 99, JOO, 102, 105 & s.304-Part II- Murder-Plea of private defence-Appellants went and attacked with lethal weapons the deceased and his family members in the latter's fields-Held: C Appellants were aggressors-Hence cannot claim right of self defence-Right to defend does not include a right to launch an offensive or aggression- However, on facts, appellants cannot be said to have entertained any intention to cause death of deceased-Hence conviction under s.304, Part-II would be proper. In a murder case, it was alleged by the prosecution that the three appellants along with two others armed with deadly weapons and with the common intention to commit murder had attacked the deceased as well as his other family members, including the complainant. Appellants and D the deceased are closely related. Trial Court convicted the Appellants under Sections· 148, 302, 323 and 324/149, IPC. High Court upheld the E conviction. In appeal to this Court it was contended that the plea of self defence raised by the ~ppellants had not been c~nsidered in its correct perspective both by the Trial Court as well as the High Court; that the incident, in F which the two parties clashed and there were allegations of assaults on each other, it was the duty of the prosecution to have explained the injuries sustained by the appellants, particularly appellant no. 1, who had six serious injuries on his person and that the non-explanation of injuries sustained by the members of the accused party shows that the prosecution has not come out with the truthful version of the incident and has G suppressed the genesis of the crime. Alternatively it was contended that it being a case of sudden fight, the case falls within the ambit of sub-section (4) of Section 300 IPC and, therefore, at best offence under Section 304 part-I or II could be made out against the appellants. 391 H 392 SUPREME COURT REPORTS [2006) SUPP. IO S.C.R. A The State however contended that appellants were aggressors and hence B the plea of self defence was not available to them. In appeal to this Court, the question which arose for consideration is whether or not the appellants had assaulted the deceased and his party in exercise of the right of private defence. Partly allowing the appeal, the Court HELD: 1. The right of private defence is a defensive right. It is neither a right of aggression nor of reprisal. There is no right of private defence where there is no apprehension of danger. The right of private C defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self creation. Necessity must be present, real or apparent. (392-C) Laxman Sahu v. State ofOrissa AIR (1988) SC 83 and Jai Dev v. State D of Punjab AIR (1963) SC 612, relied on. 2.1. 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 E 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. [398-G; 399-A) 2.2. However, the means and the force a threatened person adopts at the F 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 G 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. (399-B-C) 3. It is trite that the burden of establishing the plea of self defence is H DHARAM v. STATEOFHARYANA 393 on the accused but it is not as onerous as the one that lies on the pr
Excerpt shown. Read the full judgment & AI analysis in Lexace.