V. SUBRAMANI AND ANR. versus STATE OF TAMIL NADU

Citation: [2005] 2 S.C.R. 536 · Decided: 03-03-2005 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Disposed off

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Judgment (excerpt)

A 
V. SUBRAMANI AND ANR. 
v. 
STATE OF TAMIL NADU 
MARCH 3, 2005 
B 
[ARIJIT PASA Y AT AND S.H. KAPADIA, JJ.] 
Penal Code, 1860 : 
Sections 96 to 102 and 105-Criminal trial-Right of private defence-
C Nature of-Held : It is essentially a defensive right circumscribed by the 
governing statute, i.e. !PC and should not be allowed to be pleaded or availed 
as a pretext for a vindic.tive, aggressive or retributive purpose of offence-
Burden of proof is on the accused, who sets up the plea of private defence-
The burden stands discharged by showing preponderance of probabilities in 
D favour of that plea on the basis of material on record-On facts, the accused, 
who were convicted by courts below for causing murder, failed to establish 
that they were exercising right of private defence-Evidence Act, 1872-Section 
105. 
Sections 302 and 304-Part I-Murder-Death occurred on account of 
E a single blow given on the head by a small wooden yoke-Plea of self-defence 
by accused not established-Courts below had recorded conviction under 
Section 302-Held : On facts, the conviction is liable to be altered to one 
under Section 304-Part I with custodial sentence of I 0 years. 
According to the prosecution, pursuant to a wordy altercation 
F between Al and PWl in the presence of PW2, Al beat PWI with a stick 
and fled to the house of A6. Subsequently, PWs 1 and 2 started shouting 
in front of the house of A6, when A3 yelled that PWs t and 2 should be 
assaulted. PWl was assaulted by Al, A2 and A4. PWs 2 and 3 were also 
assaulted. Deceased, the father of PWs 1, 3 and 5, rushed to the scene of 
G occurrence in their support when he was assaulted by A3 and AS over his 
head with yokes while A6 caught hold of him, causing bleeding injuries 
of serious nature. He was taken to the hospital where he died. 
Though the prosecution had contended that all the accused persons 
acted in furtherance of common object being members of unlawful 
ll 
536 
V. SUBRAMANI v. STATE 
537 
assembly and committed the crime, the Trial Court did not accept the A 
version. Considering the individual overt acts, it acquitted A-4, A-6 and 
A-7 but convicted A-I and A-2 under Section 324 IPC and A-3 and A-5, 
i.e. the appellants under Section 302 IPC. The conclusions of the Trial 
Court were affirmed by the High Court. 
In appeal to this Court, it is contended that the evidence on record B 
clearly showed that ladies related to the accused were assaulted first; that 
even if the prosecution version is accepted in toto, the accused persons 
made assaults in the process of protecting their lives and properties; that 
since the accused persons had exercised the right of private defence, the 
conclusions of the courts below cannot be maintained, and that the accused C 
persons have also suffered injuries in exercise of right of private defence. 
Disposing of the appeal, the Court 
HELD : I. The burden of proof is on the accused, who sets up the 
plea of self-defence, and, in the absence of proof, it is not possible for the D 
Court to presume the truth of the plea of self-defence. The Court shall 
presume the absence of such 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 witnesses examined for the 
prosecution. An accused taking the plea of right of private defence is not 
necessarily required to call evidence; he can establish his plea by reference E 
to circumstances transpiring from the prosecution evidence itself. The 
question in such a case would be a question of assessing the true effect of 
the prosecution evidence, and not a question of the accused discharging 
any burden. Where the right of private defence is pleaded, the defence 
must be a reasonable and probable version satisfying the Court that the F 
harm caused by the accused was necessary for either warding off the 
attack or for forestalling 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 discharged by showing 
preponderance of probabilities in favour of that plea on the basis of the 
material on record. The accused need not prove the existence of the right G 
of private defence beyond reasonable doubt. 1543-B-D; 544-A) 
Munshi Ram and Ors. v. Delhi Administration, AIR (1968) SC 702; 
State of Gujarat v. Bai Fatima, AIR (1975) SC 1478; State of UP. v. Mohd. 
Musheer Khan, AIR

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