NARAIN SINGH AND ORS. versus STATE OF HARYANA

Citation: [2008] 6 S.C.R. 74 · Decided: 09-04-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Disposed off

Judgment (excerpt)

A 
B 
[2008] 6 S.C.R. 74 
NARAIN SINGH AND ORS. 
v. 
STATE OF HARYANA 
(Criminal Appeal No. 632 of 2008) 
APRIL 9, 2008 
[DR. ARIJIT PASAYAT AND P; SATHASIVAM, JJ.] 
Penal Code, 1860 - ss. 96 to 106; s. 304 Part II rlw s. 34 -
Right of private defence - When avail.able - Land dispute -
c Appellant No. 1 fired gun shots at husband of PW3 causing 
his:rdeath - Other Appellants were sons of Appellant No. 1 -
They assaulted PWs 3 and 4 with 'Jai/y' - Plea of private 
defence by all Appellants - Tenability of - Held: On facts, not 
tenable - Right of private defence is essentially a defensive 
0 right circumscribed by the governing statute i.e. /PC, available 
only when circumstances clearly justify it - Right to defend 
does not include a right to launch an offensive, particularly 
when the need to defend no longer survived -
Conviction 
under s.304 Part II rlw s.34 /PC - Sentence of 7 years for 
Appellant No. 1 and 5 years for other Appellants. 
E 
There was a land dispute between the parties. 
According to the prosecution, when PW3, her husband 
and PW4 tried to stop the Appellants from sowing 'Jowar' 
in their field, Appellant No.1 fired gun shots on the chest 
F of PW3's husband which proved fatal while the other 
Appellants, who were sons of Appellant No.1, assaulted 
·t 
PWs 3 and 4 with 'Jaily'. 
Trial Court convicted the Appellants under s.302 r/w 
s.34 IPC and sentenced them to undergo life 
G imprisonment and further imposed on them fine of 
· Rs.20,000/- each with default stipulation. Appellants filed 
appeal taking the plea of right of private defence. The High 
Court held that Appellant No.1 by firing gun shot had 
exceeded the right of private defence, as the deceased 
H 
74 
'I· 
NARAIN SINGH AND ORS. v. STATE OF HARYANA 
75 
and the witnesses were only armed with /athis, but altered A 
his conviction to that under s.304 Part II r/w s.34 IPC with 
sentence of RI for 10 years. Though the other Appellants 
were similarly convicted they were each sentenced to 
undergo RI for 5 years only. The fine awarded by the Trial 
Court was maintained by the High Court. 
B 
In appeal to this Court, it was submitted that the 
Appellants were protected by the right of private defence, 
and in any event, the sentence imposed on them was not 
proper. 
Partly allowing the appeal filed by Appellant No.1 
while dismissing the appeal filed by the other Appellants, 
the Court 
c 
HELD: 1.1. S.96, IPC provides that nothing is an 
offence which is done in the exercise of the right of private D 
defence. The Section does not define the expression 'right 
of private defence'. It merely indicates that nothing is an 
offence which is done in the exercise of such right. 
Whether in a particular set of circumstances, a person 
legitimately acted in the exercise of the right of private E 
defence is a question offact to be determined on the facts 
and circumstances of each case. No test in the abstract 
for determining such a question can be laid down. In 
determining this question of fact, the Court must consider 
all the surrounding circumstances. It is not necessary for F 
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 G 
same is available to be considered from the material on 
record. Under Section 105 of the Indian 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 
possible for the Court to presume the truth of the plea of H 
76 
SUPREME COURT REPORTS 
(2008] 6 S.C.R. 
A 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 
B 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 evidence itself. The question in such a 
case would be a question of assessing the true effect of 
c the 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 probabl

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