STATE OF U.P. versus RAM SWARUP & ANR.

Citation: [1975] 1 S.C.R. 409 · Decided: 02-05-1974 · Supreme Court of India · Bench: M. HAMEEDULLAH BEG · Disposal: Dismissed

Judgment (excerpt)

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409 
STATE OF U.P. 
v. 
RAM SWARUP & ANR. 
May 2, 1974 
[M. H. BEG, Y. V. CJfANDRACHUD AND V. R. KRISHNA IYER, JJ.] 
Criminal Law-Murder-Private defence, right of. 
Ap,peaf-Appeal against aOquittal-Locus standi of Stdte to appeal under 
ar:icle 136. 
G and deceased M were trade rivals. 
At about 7 a.m. G went to pur~ 
chase a basket of melons from the deceased. 
The deceased declined to sell 
it. 
Hot words f'ollowed. 
G left in a huff. An hour later Ci went to the• 
n1arket with his son R and two other sons. 
G had a knife ll a gun and 
the others carried lathis. 
They advanced aggressively to\vards the decease.I 
who attempted to retreat. 
R shot him dead at point b'lank range. 
The 
Learned Sessions Jltdge convicted R under section 302 and sentenced him· 
to death. 
G was convicted under section 302 read with section 34 and was 
sentenced to iJJ1prisonment for life. The other two sons were acquitted of 
all the charges. On appeal, the High Court of Allahabad acquitted R and 
G and confirmed the acquittal of the other sons. 
HELD : Confirming the acquittal of G but restoring the conviction of R 
and awarding life sentence, 
(i) The burden which rests on the prosecution to establish its case beyond 
reasonable doubt is neither neutralised nor shifted because the accused pleads 
the right of private defence. The prosecution must discharge its 
. initial 
traditional burden to establish the complicity of the accused and until it does 
so, the question whether the accused has acted in self defence or not does not 
arise. The Sessions Court accepted the evidence of 5 prosecution witnesses 
after a careful Secruting and the High Court was unduly suspicious 
of that 
evidence in the name of caution. Caution is safe and unfailing guide in the 
judicial armoury but a cautious approach does not justify an a priori assump-
tion that the case is surrounded in suspicion. 
Murders arc not committed by 
coolly weighing the pros and cons. 
[412C-F, H; 414A] 
(ii) The right of private defence is a right of defence. not of a retribution. 
It is :'. \1ailable in face of imminent peril to those who act in good faith and 
in no case can the 
right be conceded to a person who istage-manages the 
situation wherein the right can be used as a shield to justify an act of aggres-
sion. Evidently the accused went to the market with a pre-conceived design 
to pick up a quarrel. It is a necessary incident of the right of private defence 
that the force used must bear a reasonable proportion to the injury to be 
averted. Ther.e was no justification for killing the deceased selectively. The 
right of def1ence ends with the necessity for it. 
When a person is accused Of an 
offence the burden of proving the existence of circumstances bringing tb·e 
c•se within any of the general exceptions in the Penal Code is upon him 
and the court shall presume the absence of such circumstances. The right 
of private defence constitutes a general exception to the offences defined in 
the Penal Code. 
The burden which rests on the accused to prove the excep-
tion is not of the same rigour as the burden of the prosecution to prove the 
charge beyond a reasonable doubt. It is enough for accused to show as in 
a civil case that the preponderance of probabilities is in favour of his plea. 
The respondents led no evidence to prove their defence but th:.1t is not nece!-
sary bo:.ause such proof can be offered by re·lying on the evidence led by the 
prosecution, the material elicited by cross-examining the prosecution witnesses 
and the totality of facts and circumstances emerging out of the evidence in 
the case. The conclusion of the High Court in regard to Ram Swarup being 
plainly unsupportable and leading to a manifest failure of justice it was set 
aside and the order of the Sessions Court convicting him under section 302 
of the Pena] Code was restored. The sentence was however. reduced 
to 
life imprisonment since the p0'5Sibility of scuflle cannot be excluded. 
[414H; 
416D-417G] 
SUPREME COURT REPORTS 
(1975] l s.c.R. 
In regard to G although if this Court was to consider the case independently 
it might have come to a conclusion different from the one arrived at by the 
High Court, in view of the principles governing appeals under Article 136 
the order passed by the High Court was not disturbed. [418A-D] 
A 
(iii) The locus standi of State Governments to file appeals in this Court 
against judgments or orders rendered in 

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