GENOA SINGH AND ORS. versus STATE OF U.P.

Citation: [2008] 10 S.C.R. 553 · Decided: 09-07-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Partly allowed

Judgment (excerpt)

[2008) 10 S.C.R. 553 
"") 
GENOA SINGH AND ORS. 
A 
v.. 
STATE OF U.P. 
(Criminal Appeal No. 1036 of 2008) 
~ 
JULY 9, 2008 
8 
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.] 
Penal Code, 1860: ss. 96 - 106, s302 rlw s. 34, s. 304 Part 
I and s. 323 rlw s 34: 
.. 
' 
Right of private defence - Use of force by accused in c 
exercise of right of private defence -Accused armed with weap-
ans allegedly attacked father and uncle of complainant caus-
ing injuries - Victims succumbed to injuries - Trial Court found 
accused persons guilty of committing offences under s. 302 rl 
• 
w s.34 /PC and 323 rlw s.34 /PC and sentenced them to un-
D 
~ 
dergo life imprisonment - Affirmed by High Court -
Held: In 
the facts and circumstances of the case, accused exceeded 
the right of private defence, hence, the protection for exercis-
ing the said right cannot be extended to them -However, ap-
propriate conviction would be under s.304 Part I /PC - Ac-
E 
cordingly, custodial sentence altered to 10 years instead of 
life imprisonment - Sentence/Sentencing. 
Right of private defence - Scope and ambit of - Dis-
cussed. 
"' 
F 
)-
According to the prosecution, on the fateful day 
when the complainant along with his father and uncle 
was repairing the boundary of the field, which was alleg-
edly damaged by the accused persons, accused appel-
lants armed with weapons came to the spot. They started G 
giving blows to the uncle and father of the Complainant. 
On hearing the hue and cry, some persons from nearby 
area came to their rescue and taken the father and uncle 
of the complainant in injured condition to police station. 
553 
H 
554 
SUPREME COURT REPORTS 
[2008] 10 S.C.R. 
A An F.l.R. was registered against accused persons for com-
mitting offences under ss.323, 324 and 308 l.P.C. Later 
both the victims succumbed to injuries. The Police inves-
tigated the matter and s·ubmitted the charge sheet. Trial 
Court found the appellants guilty of committing the of-
B fences u/s.302 r/w s.34 and s.323 r/w s.34 IPC and sen-
tenced them to undergo rigorous imprisonment for life. 
Appeal filed thereagainst by the appellants was dismissed 
by the High Court. Hence, the present appeal. 
Appellants contended that the High Court should 
C have given the benefit available for exercising right of pri-
vate defence as the evidence clearly established that they 
used the force against the deceased in exercise of their 
right of private defence. 
D 
Partly allowing the appeal, the Court, 
HELD 1.1. Section 96, IPC provides that nothing is 
an offence which is done in the exercise of the right of 
private defence. The Section does not define the expres-
sion 'right of private defence'. It merely indicates that 
E nothing is an offence which is done in the exercise of such 
right. Whether in a particular set of circumstances, a per-
s~n legitimately acted in the exercise of the right of pri• 
vate defence is a question of fact to be determined on the 
facts and circumstances of each case. [Para 6] [560 F-G] 
F 
1.2. No test in the abstract for determining such a 
questio.n can be laid down. In determining the question 
of fact, the Court must consider all the surrounding cir-
cumstances. 'ltis not necessary for the accused to plead 
Jn so many words that he acted in self-defence. If the cir-
G cumstances show that the right of private defence was 
legitimately exercised, it is open to the Court to consider 
such a plea. In a given case the Court can c.onsider it even 
if the accuse·d has not taken it, if the same is available to 
be considered from the material on record. [Para. 6] [560 
H G- 561 Bl 
GENOA SINGH AND ORS. v. STATE OF U.P. 
555 
2.1. Under Section 105 of the Indian Evidence Act, 
A 
1872, 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 6] [561 8-D] 
~ 
2.2. An accused taking the plea of the right of private 
defence is not necessarily required to call evidence; he can 
establish his plea by reference to circumstances transpir-
ing from the prosecution evidence itself. The question in 
such a case would be a question of assessing the true ef- c 
feet of the prosecution evidence, and not a question of the 
accused discharging any burden. [Para 6] [561-D-E] 
2.3. Where the right of private defence. is pleaded, the 
.. 
defence must be a

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