SURENDRA AND ANR. versus STATE OF MAHARASHTRA

Citation: [2006] SUPP. 5 S.C.R. 291 · Decided: 24-08-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed
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Judgment (excerpt)

• 
SURENDRA AND ANR. 
A 
v. 
ST ATE OF MAHARASHTRA 
AUGUST 24, 2006 
[S.B. SINHA AND DAL VEER BHANDARI, JJ.] 
B 
Penal Code, 1860: 
Section 304, Part I-Culpable homicide not mnounting to murder-
When PW-3, the son of the deceased, was going to the pan shop early in the C 
morning, accused No. 2 allegedly came out with a stick and hurled some 
blows on him-PW-I, daughter of the deceased raised hue and cry-The 
deceased came out thereafter to rescue his son-At that time, accused No. I 
allegedly took out one ubhari (a big stick) from a bullock cart and assaulted 
him-It was the case of the accused persons that the deceased and his son, D 
nurturing deep resentment against them, came armed and made attempts to 
assault accused No. I who was milking his cows in the cattle shed-Trial 
court convicted the accused persons under S. 302134-High Court affirmed 
the conviction-Correctness of-Held: It was necessary on the part of the 
prosecution to explain the injuries on the person of the accused-The 
possibility of PW-3 and the deceased being the aggressors cannot be ruled E 
out-Evidently, there was no pre-meditation on the part of accused No. 1-
He was not armed-He took out an ubhari from his bullock cart at a later 
stage-It is, therefore, a case where it is likely that a sudden fight between 
the parties had erupted-Hence, conviction is altered to one under. S. 304, 
Part I and S. 324134. 
Section 96-Right of private defence-Exercise of-Principles-Held: 
F 
In all circumstances injuries on the person of the accused need not be 
explained but a different standard would be applied in a case where a · 
specific plea of right of private defence has been raised-Right of private 
defence cannot be exceeded by using more force upon the deceased than was G 
necessary. 
According to the prose~ution, the appellants-accused were brothers and 
the deceased was their uncle and there were some property disputes between 
them. When PW-3, the son of the deceased, was going to the pan shop early 
291 
fl· 
292 
SUPREME COURT REPORTS [2006] SUPP. 5 S.C.R. 
A in the morning, appellant No. 2 allegedly came out with a stick and hurleci 
some blows on him. PW-I, daughter of the deceased raised hue and cry. The 
deceased came out thereafter and made endeavours to rescue his son. At that 
time, appellant No. I allegedly took out one ubhari (a big stick) from a bullock 
cart and assaulted him. It was the case of the appellants that the deceased and 
his son, nurturing deep resentment against them, came armed and made 
B attempts to assault appellant No. I who was milking his cows in the cattle 
shed. On the complaint of appellant No. I a case under Section 324 read with 
Section 34 of the Penal Code, 1860 was registered against the deceased and 
his son. Appellant No. I had raised a plea of private defence and the injuries 
on the person of the appellants were not explained. 
c 
D 
E 
The trial court convicted the appellants-accused persons under Sections 
302/34 and 324/34 IPC. The High Court affirmed the conviction. Hence the 
appeal. 
Allowing the appeal in part, the Court 
HELD: I. In a case of this nature, a broad view of the entire matter was 
required to be taken, viz. 
(a) Appellant No. I was not armed and he at a later stage of the quarrel 
took out an ubhari (a big stick) from a bullock cart. 
(b) He had raised a contention even in his bail petition that he had 
exercised his right of private defence. (298-E, F( 
2. In all circumstances injuries on the person of the accused need not 
be explained but a different standard would be applied in a case where a specific 
F plea of right of private defence has been raised. It may be true that in the 
event the prosecution discharges its primary burden of proof, the onus would 
shift on the accused but the same would not mean that the burden can be 
discharged only by examining defonce witnesses. (298-F, Gf 
3. The courts below committed a manifest error of law in opining that 
G the appellants had not discharged the initial burden which is cast on them. 
H 
Even such a plea need not be specifically raised. The Courts may only see as 
to whether the plea of exercise of private defence was probable in the facts 
and circumstances of the case. (299-A( 
State of UP. v. Ram Swarup, (1974( 4 SCC 764; Yogendra Morarji v. 
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SURENDRA v. ST A TE OF MAHARASHTRA 
293 
State of Gujarat, 1198012 SCC 218; Cherlopalli Cheliminabi Saheb v. State A 
of A.P., 1200312 SCC 571; Bishna Alias Bhiswadeb Mahato v.
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