RAM PYARE MISHRA versus PREM SHANKER AND ORS.

Citation: [2008] 12 S.C.R. 497 · Decided: 22-08-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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[2008] 12 S.C.R. 497 
RAM PYARE MISHRA 
A 
V. 
PREM SHANKER AND ORS. 
(Criminal Appeal No. 181 of 2001) 
AUGUST 22, 2008 
8 
[DR. ARIJIT PASAYAT, P. SATHASIVAM AND AFTAB 
ALAM, JJ] 
Penal Code, 1860: 
· s. 304 (part l)rlw s.34 - Accused caused lathi and knife c 
injuries to victim resulting in his death - Conviction by trial 
court uls 302134 - Acquittal by High Court on plea of self-
defence - HELO: High Court wrongly interpreted the medical 
evidence and overlooked ofher evidence - There was nothing 
to substantiate right of private defence - Evidence is clear D 
that though there might have been at some point of time 
such right to accused, the same has been exceeded -
Evidence is clear that after the accused assaulted the 
deceased and injured the witnesses, they were beaten by 
(· 
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villagers - Accused convicted uls 304 (part I). 
E 
ss. 97 and 100-101 - Right of self-defence - HELO: 
Burden of proof is on the accused who sets up the plea and. 
defence must be a reasonable and probable version 
satisfying the court that the harm caused by accused was 
necessary for either warding off the attack or forestalling 
F 
further reasonable apprehension - Burden .stands discharged 
by showing preponderance of probabilities in favour of plea 
on basis of material on record - In the instant case, there· • 
was nothing to substantiate right of self-defence - Evidence 
Ac;t, 1872 - s.105. 
G 
The accused-respondents, two brothers, armed with 
lathi and knife, were stated to have attacked and killed 
the brother of PW-1. PW-2, who rushed to rescue the 
497 
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498 
SUPREME COURT REPORTS 
[2008] 12 S.C. R. 
A 
deceased, was also assaulted by the accused. The 
incident was also witnessed by PW-1, PW-4 and some 
others. One of the accused was apprehended at the spot 
and handed over to the police along with the blood 
stained knife. The defence version was that on the day 
B of the incident one of the accused had· gone to throw 
cow dung in their fields where he was assaulted by the 
deceased with lathi and, hearing his cries, the other 
accused reached there with a spear to save him. The 
trial court convicted the accused u/s 302 r/w s.34 IPC, 
C but the High Court acquitted them on the plea of right of 
self-defence. 
In the instant appeals filed by the complainant as 
also by the State, it was contended for the appellants 
that the High Court acted on surmises and conjectures 
D in accepting the plea of right of private defence; that 
even otherwise, the High Court failed to examine the 
question as to whether the right of private defence was 
exceeded. 
E 
Allowing the appeals, the Court 
HELD: 1.1 Whether in a particular 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. In a given 
F 
case the Court can consider it even if the accused has 
not taken it, if the same is available to be considered 
from the material on record. [para 5] [506,H; 507,A; 507,B] 
1.2 The right of private defence is . essentially a 
defensive right circumscribed by the governing statute 
G i.e. the IPC, available only when the circumstances clearly 
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justify it. It should not be allowed to be pleaded or availed 
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as a pretext for a vindictive, aggressive or retributive 
purpose of offence. It is a right of defence, not of 
retribution, expected to repel unlawful aggre:;s!on and 
H not as retaliatory measure. A right to defend dces not 
-t 
RAM PYARE MISHRA v. PREM SHANKER 
AND ORS. 
499 
include a right to launch an offensive, particularly, when A 
the need to defend no longer survived. [para 12] [511,D-E] 
Salim Zia v. State of UP AIR 1979 SC 391; Biran 
Singh v. State of Bihar AIR 1975 SC 87; ltVassan Singh v. 
State of Punjab (1996) 1 SCC 458, Sekar alias Raja 
Sekharan v. State represented by Inspector of Police, TN. 
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+ 2002 (8) SCC; Butta Singh v. The State of Punjab AIR 1991 
SC 1316; Vidhya Singh v. State of M.P AIR 1971 SC 1857; 
and V Subramani and Anr. vs. State of Tamil Nadu 2005 
(1 O) sec 358 - relied on. 
c 
Russel on Crime by Russel 11th Edition Volume I -
referred to. 
2.1 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, D 
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

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