LexSHIVANNA AND ORS. versus STATE OF KARNATAKA
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A SHIV ANNA AND ORS. v. STATEOFKARNATAKA NOVEMBER 8, 2006 B [ARIJIT PASA Y AT AND LOKESHWAR SINGH PANT A, JJ.] Indian Penal Code, 1860. Sections 96, 97, 98, 99, JOO, JOI, 102, 103, I04, I05, I48, I49, 324, C 326 and 304 Part II-Right of private defence-Held, it is a right of defence, not of retribution, expected to repel unlawful aggression and not as retaliatory measure-Right when applicable-Held, when there is reasonable apprehension that death or grievous hurt would be the consequence of assault-Right lasts so long as reasonable apprehension to body continues- D Burden of proof-Held, burden of proof is on accused-Accused taking plea not necessarily required to call evidence a;1d can establish plea by reference to circumstances transpiring from prosecution evidence itself-Burden stands discharged by showing preponderance of probabilities in favour of plea on the basis of material on record-In the facts, plea of right of private defence rejected but sentence altered from eight years rigorous imprisonment to six E ·years rigorous imprisonment for offence under Section 304 Part II-Indian Evidence Act, 1872-Section 105. Words & Phrases- 'Right of Private defence '-Meaning of in the context of the Indian Penal Code, 1860. F D was wife of S-accused no.I and they had three children. D was residing with her elder brother, M. S had 4 acres of land out of which he had given 1 acre 10 guntas to his children which was being cultivated by them, (D and M). They were demanding more share for which S did not agree. Prosecution alleged that on the day of incident when D & M learnt that S alongwith other G accused persons was cultivating land allotted to share of children of D, they alongwith other persons went to prevent cultivation of said land by S but they were attacked by S and other accused persons. M was attacked by crow-bar, spade and a club as a result of which M died. Trial Court convicted accused persons for commission of offences under Sections 143, 148, 324, 326, 341, 302 read Section 34 of Indian Penal Code, 1860. High Court partly allowed II 732 .. SHIV ANNA v. ST A TE OF KARNATAKA 733 appeal filed by accused persons and convicted them for commission of offences A . under Section 304 Part II read with Section 149 IPC and sentenced them to undergo rigorous imprisonment or 8 years and also convicted them under Section 148 IPC and Sections 324 and 326 read with Section 149 IPC. Hence this appeal by the accused persons. Appellants contended that deceased and persons with him were B aggressors as they were trying to encroach upon land of appellants and the appellants in exercise of right of private defence assaulted them; and that sentence imposed is quite heavy and major part of sentence has already been suffered by them. Partly allowing the appeal, the Court HELD :1.1. Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The Section does not define the expression 'right of private defence'. The right of private defence is essentially a defensive right circumscribed by the governing statute i.e. th~ IPC, available only when the circumstances clearly justify it. It should not be allowed to be pleaded or availed 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 aggression and not as retaliatory measure. While · providing for exercise of the right, care has been taken in IPC not to provide c n, and has not devised a mechanism whereby an attack may be pretence for E killing. A right to defend does not include a right to launch an offensive, particularly when the need to defend no longer survived. [739-D, E; 743-D, E) V. Suhramani and Anr. v. State qfTN., [2005) 10 SCC-358, relied on. Russel on Crime, //th Edition, V~/ume I at page 49 referred to. F 1.2. Section 97 deals with the subject matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to G property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences arid acts.
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