HANUMANTAPPA BHIMAPPA DALAVAI & ANR versus STATE OF KARNATAKA

Citation: [2009] 5 S.C.R. 286 · Decided: 31-03-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed
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Judgment (excerpt)

[2009] 5 S.C.R. 286 
A 
HANUMANTAPPA BHIMAPPA DALAVAI & ANR. 
II. 
STATE OF KARNAT AKA 
,.-
(Criminal Appeal No. 672 of 2005) 
B 
MARCH 31, 2009 
' 
[DR. ARIJIT PASAYAT AND ASOK KUMAR 
GANGUL Y, JJ.] 
EVIDENCE ACT, 1872: 
c 
s.105 - Burden to prove the case of self-defence - Held: 
Is on the person who sets up the plea - To claim a right of 
private defence extending to voluntarily causing of death, 
accused must show that there were circumstances giving rise 
D to reasonable grounds for apprehending that either death or 
grievous hurt would be caused to him - In the instant case 
plea of right of private defence is without any substance - Trial 
court and High Court relying on injured eye witnesses, rightly 
convicted the accused - Penal Code, 1860 - Ss.96, 97 and 
E 
100; ss.302 and 326. 
The accused-appellants and the complainant party 
belonged to the same village. A quarrel took place 
-
between the complainant (PW5) and A-1 with regard to 
the jail hedges overgrown by the side of the compound 
F of A-1 which were obstructing the path of the villagers. 
' 
When PW5 asked A-1 to get the overgrown hedges cut, 
the latter was stated to have abused the former. On the 
following day when 'M', the younger brother of PW-5 
reached the village and the family members told him 
G about the misbehaviour of A-1, he followed by PW5, PWs 
18-20, PW24'and PW26, went to the hotel of A-1 and 
questioned him about his behaviour with PW5. On this 
A-1 brought a crow bar from inside the hotel and hit with 
it on the head of PW-5. Sons of A-1, namely, A-2 and A-3 
H 
286 
HANUMANTAPPA BHIMAPPA DALAVAI & ANR. v. STATE 
287 
OF KARNATAKA 
brought a stick and an iron rod respectively. A-3 hit 'B' A 
the elder brother of PW5. A-1 further gave a crow-bar 
blow to PW18 and A-2 hit her with the stick. Meanwhile 
other persons reached the place and saved the victims. 
'M' and 'B' were taken for treatment. 'M' was declared 
brought dead. 'B' died later. The trial court did not B 
believe the case of the accused regarding private defence 
and convicted and sentenced them u/s 302 IPC. A-1 was 
also convicted and sentenced u/s 326 IPC. The High 
Court affirmed the conviction. 
In the instant appeal, filed on behalf of the accused, C 
it was contended for the appellants that this was a case 
where the right of private defence was clearly applicable 
and the prosecution version was not believable and, 
therefore, they were not liable to be convicted. 
D 
Dismissing the appeal, the Court 
HELD: 1.1. Under s.105 of the Evidence Act, 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 E 
possible for the court to presume the truth of the plea of 
self-defence. The court shall presume the absence of 
such circumstances. It is for the accused to place 
necessary material on record either by himself adducing 
positive evidence or by eliciting necessary facts from the 
witnesses examined for the prosecution. An accused 
F 
taking the plea of the right of private defence is not 
required to call evidence; he can establish his plea by 
reference to circumstances transpiring from the 
prosecution evidence itself. The question in such a case 
would be a question of assessing the true effect of the G 
prosecution evidence, and not a question of the accused 
discharging any burden. Where the right of private 
defence is pleaded, the defence must be a reasonable 
and probable version satisfying the Court that the harm 
H 
288 
SUPREME COURT REPORTS 
[2009) 5 S.C.R. 
A caused by the accused was necessary for either warding 
off the attack or for forestalling the further reasonable 
apprehension from the side of the accused. [Para 7) [293-
B-F] 
8 
Munshi Ram and Ors. v. Delhi Administration: AIR 1968 
SC 702; State of Gujarat v. Bai Fatima AIR 1975 SC 1478; 
State of U.P. v. Mohd. Musheer Khan AIR 1977 SC 2226; 
Mohinder Pal Jolly v. State of Punjab AIR 1979 SC 577; 
Salim Zia v. State of U.P. AIR 1979 SC 391 and Lakshmi 
Singh v. State of Bihar AIR 1976 SC 2263, referred to. 
c 
1.2. To claim a right of private defence extending to 
voluntarily causing of death, the accused must show that 
there were circumstances giving rise to reasonable 
grounds for apprehending that either death or grievous 
o hurt would be caused to him. The burden is on the 
accused to show that he had a right of private defence 
which extended to causing of death. [Para 9) (295-E-F] 
E 
Jai Dev. v. State of Punj
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