LexSALIM AND ORS. versus STATE OF HARYANA
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
[2008] 11 S.C.R. 1154
A
SALIM AND ORS.
v.
STATE OF HARYANA
(Criminal Appeal No. 1254 of 2008)
B
AUGUST 11, 2008
I>
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[DR. ARIJIT PASAYAT AND HARJIT SINGH BEDI, JJ.]
Penal Code, 1860:
c
ss. 96 to 106 - Right of private defence - Exercise of -
Held: Question as to whether in a particular situation a person
acted reasonably in exercise of right of private defence is a
question of fact- Court to take surrounding circumstances for
determining such question - On facts, evidence on record
does not establish that the accused persons were exercising
D right of private defence - Appropriate conviction would be un-
der s. 304 (Part I) r. w. s. 149 and not under s. 302.
'~
Evidence Act, 1872:
s.105 - Burden to prove right of private defence - Held:
E
Is on accused who sets up such plea - Burden stands dis-
charged by showing preponderance of probabilities in favour
of the plea on the basis of material on record - On facts, there
is no evidence to support the plea.
F
Prosecution case was that there was land dispute
between the parties. On the fateful day, when complain-
ant and others were ploughing the land, the accused per-
sons reached the spot armed with guns, lathis and pharsa
and gave exhortation that the persons belonging to com-
plainant party be killed. Appellant 'S' fired from his double
G barrel gun which hit the forehead of deceased. Another
accused person fired which hit the right side of deceased.
When the complainant tried to intervene one of the ac-
)..
cused persons gave pharsa blow on his head and an-
other inflicted lathi blow on his head. The remaining ac-
H
1154
"
SALIM & ORS. v. STATE OF HARYANA
1155
cused with their lathis caused injuries on others. The de-
A
ceased died on the way to the hospital.
The Trial Court convicted appellant 'S' under ss.302, .
203/149, 307/149, 323/149, 325/149 IPC and s.27 of Arms
Act and the other accused persons under ss.148, 307/149,
323/149 and 325/149 IPC. The appeals filed by the accused 8
as also the State were dismissed by the High Court.
In the instant appeal, the issue for consideration was
the alleged exercise of right of private defence.
Disposing of the appeal, the Court
c
HELD: 1.1. Whether in a particular set of circum-
stances, a person legitimately acted in the exercise of the
right of private defence is a question of fact to be deter-
mined on the facts and circumstances of each case. No 0
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 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 ex-
E
ercised, 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 available to be considered
from the material on record. [Para 7] [1162 F,G,H 1163-A]
1.2 Under Section 105 of the Evidence Act, 1872 , the
burden of proof is on the accused, who sets up the plea
F
of self-defence, and, in the absence of proof, it is not pos-
sible for the Court to presume the truth of the plea of self-
defence. The Court shall presume the absence of such G
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 wit-
nesses examined for the prosecution. The question in
such a case would be a question of assessing the true H
1156
SUPREME COURT REPORTS
[2008] 11 S.C.R.
.I,
A effect of the prosecution evidence, and not a question of
the accused discharging any burden. [Para 7] [1162 F,G,H
1163 A,B,C,D]
1.3. Where the right of private defence is pleaded, the
B
defonce must be a reasonable and probable version sat-
isfying the Court that the harm caused by the accused
was necessary for either warding off the attack or for fore-
stalling the further reasonable apprehension from the side
of the accused. The burden of establishing the plea of
self-defence is on the accused and the burden stands
c discharged by showing preponderance of probabilities
in favour of that plea on the basis of the material on
record. [Para 7] [1163 D E]
_Salim Zia v. State of U.P AIR (1979) SC 391; Munshi
D Ram andOrs. v. Delhi Administration AIR (1968) SC 702; State
of Gujarat v. Bai Fatima AIR (1975) SC 1478; StaExcerpt shown. Read the full judgment & AI analysis in Lexace.