KRISHNA & ANR versus STATE OF U.P

Citation: [2007] 7 S.C.R. 1157 · Decided: 21-06-2007 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Dismissed

Judgment (excerpt)

. " 
KRISHNA & ANR. 
A 
v. 
STATEOFU.P. 
JUNE 21. 2007 
[DR. ARIJITPASAYAT ANDO. K. JAIN, JJ.] 
B 
Penal Code, I 860: 
Section 96-Right if private defence-Nature, scope and ambit of- c 
Plea, when can be raised and mode of proof-Commencement and termination 
of right of private defence--Accused borrowed money from the deceased and 
not only effused to return the money but also denied having borrowed any 
money from the deceased-When the deceased proceeded to loge a complaint, 
the accused assaulted him first as a result of which the deceased died on the 
spot-Trial Court convicted the accused under Ss. 302, 307 and 323 rlw S. D 
34-High Court negatived the plea of exercise of private defence raised by 
the accused-Correctness of-Held: 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 transpiring from the prosecution 
ev.idence itself-The accused need not prove the existence of the right of 
private defence beyond a reasonable doubt-It is enough for him to show, E 
as in a civil case, that the preponderance of probabilities is in favour of his 
plea-Non-explanation of the injuries sustained by the pccused is a very 
important circumstance-But, mere non-explanation of the irif uries by the 
prosecution may not affect the prosecution case in all cases-A plea of right 
of private defence cannot be based on surmises and speculatio~ The burden F 
~ 
is on the accused to show that had a right of private defence which extended 
to causing of death-The right of private defence lasts so long as the 
I 
reasonable apprehension of the danger to the body continues-Where assault 
-i 
is imminent by use of force, it would be lawful to repel the force in self 
defence and the right of private defence commences as soon as the threat 
becomes so imminent-The right of private defence is essentially a defensive G 
right-It is a right of defence, not of retribution, expected to repel unlawful 
aggression and not as a retaliatory measure-On facts, since the accused 
..... 
--< 
were the aggressors and attacked the deceased first as a result of which the 
.... 
deceased died. right of private defence is not available. 
1157 
H 
1158 
SUPREME COURT REPORTS 
(2007) 7 S.C.R. 
A 
According to the prosecution, the appellants-accused borrowed some 
money from the deceased and two days prior to the occurrence, when the 
deceased demanded his money from the appellants, the appellants not only 
refused to return the money but also denied having borrowed any money from 
the deceased. 
B 
On the fateful day, when the deceased proceeded to the police station to 
lodge a complaint, the accused persons assaulted the deceased with a lathi as 
a result of which the deceased fell down and died on the spot. The trial court 
convicted the accused persons under Sections 302, 307 and 323 read with 
Section 34 of the Penal Code, 1860 and sentenced them to undergo 
C imprisonment for life. 
Before the High Court a plea was taken that the accused had exercised 
the right of private defence; therefore, the conviction as done was not 
maintainable. The High Court did not accept this plea and observed that since 
the accused persons were the aggressors and in fact attacked the deceased 
D first, the question of exercise of right of private defence did not arise. Hence 
the appeal . 
. Dismissing the appeal, the Court 
HELD: 1.1. Section 96 of the Penal Code, 1860 does not define the 
E expression 'right of private defence'. It merely indicates that nothing is an 
offence which is done in the exercise of such a right. Whether in a partic~lar 
set of circumstances, a person legitimately acted in the exercise of the right 
of private defence is a question of fact to be determined on the facts and 
circumstances of each case. No test in the abstract for determining such a 
F 
question can be laid down. In determining this question of fact, the Court must 
consider all the surrounding circumstances. It is not necessary for the 
accused to plead in so many words that he acted in self-defence. If the 
circumstances 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 consider it even if the accused has not taken it, if the same is 
G available to be considered from the material on record. !Para 71 [1164-D, E, F) 
1.2. An accused taking the plea of the right of private

Excerpt shown. Read the full judgment & AI analysis in Lexace.