LexRAGHBIR SINGH AND ORS. versus STATE OF HARYANA
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[2008] 15 S.C.R. 1108 J. A RAGHBIR SINGH AND ORS. v. ST ATE OF HARY ANA (Criminal Appeal No.1776 of 2008) B NOVEMBER 12, 2008 [DR ARIJIT PASAYAT AND DR. MUKUNDAKAM. SHARMA, JJ.] PENAL CODE, 1860: c ss.97, 1GO and 101 - Right of private defence - Injuries caused by accused to complainant, and his companion who resultantly died - Plea of self-defence by accused - HELD: Burden of proof is on the accused who sets up plea of self- D defence - To claim a right of private defence extending to voluntarily causing of death, accused must show that there ·~- were circumstances giving rise to reasonable ground for apprehending that either death or grievous hurt would be caused to him - Right of private defence is essentially a E defensive right circumscribed by the provisions of /PC, 1 available only when circumstances clearly justify it - It sho.uld not be allowed to be pleaded/availed as pretext for a vindictive, aggressive or retributive purpose of offence - In the instant case, accused did not establish that they were F exercising right of private defence - Evidence Act, 1872 - s.105. s.300, Exception 4, s. 304 (Part I) r/w s.149 - Accused causing injuries to victim resulting in his death - Plea of self'.". defence - Rejected - Conviction by trial court u/s 3021149 - G Affirmed by High Court except as regards one of the accused, whom the High Court acquitted - HELD: Assaults were made in the course of sadden quarrel, therefore, Exception 4 to s.300 applies - Conviction altered from s.302 to s.304 (part I) with 1 O years custodial sentence. H 1108 RAGHBIR SINGH AND ORS. v. STATE OF HARYANA 1109 The appellants and one 'BM' were prosecuted for A commission of offences punishable u/ss 148, 302/149, 323/149 and 506 IPC. The prosecution case was that a dispute arose between accused 'BM' on one side and his two brothers, namely PW-5 and 'AS' (the deceased) and their father (PW-6) on the other. On the day of incident, B the appellants armed with 'lathis' came to the house of PW-5 and attacked 'AS'. PW-5 tried to intervene but he was also given 'lathi' blows as a result of which he fell down. On hearing the noise, PW-6 and his wife came out of the house. It is the case of the prosecution that in the c incident PW-5 and 'AS' were also able to inflict some injuries to some of the accused. PW-5 and 'AS' were medically examined. 'AS' succumbed to his injuries the following day. The stand of the accused party was that PW-5 and 'AS' armed with 'lathis' went to the house of D accused 'BM' and caused injuries to accused 'KS' and two of their female family members; that only accused 'BM' and 'KS' were present at the scene of occurrence at that time and they caused injuries to PW-5 'AS' in self- defence. The trial court found the prosecution case E established and convicted all the accused u/ss 148, 302/ 149 and 323/149. On appeal, the High Court acquitted accused 'BM' and confirmed the conviction and the sentence as regards the other accused. In the instant appeal filed by the convicts, the only F point for consideration before the Court was the alleged exercise of right of private defence. Disposing of the appeal, the Court HELD: 1.1. Whether in a particular set of G circumstances, a person legitimately acted in the exercise of the ~ight of private defence is a question of fact to be determined on the facts and circumstances of each case. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the H 1110 SUPREME COURT REPORTS [2008] 15 S.C.R. A Court that the harm 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. Under Section 105 of the Evidence . Act, 1872, the burden of proof is on the accused, who sets B up the plea of self-defence and the burden stands discharged by showing ·preponderance of probabilities in favour of that plea on the basis of the material on record. In the absence of proof, it is not possible for the j Court to presume the truth of the plea of self-defence. The c Court shall presume the absence of such circumstances. It is for the c:ccused to place necess~ry material on record either by himself adducing positive evidence or by eliciting· necessary facts from the witnesses examined for the prosecution. The question in such a case would be D a question of assessing
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