Supreme Court of India
BIHARI RAIversusSTATE OF BIHAR (NOW JHARKHAND)
- Citation
- 2008 INSC 1093
- Decided
- 26 September 2008
- Disposal
- Dismissed
- Bench
- ARIJIT PASAYAT
Holding
The conviction under Section 304 Part I IPC is upheld because the procedural lapses do not vitiate the prosecution case and the claim of private defence is unsubstantiated.
Summary
The appellant Bihari Rai was convicted for the death of Sadri Rai. The trial court found him guilty under Section 302 read with Section 34 IPC, while the High Court altered the conviction to Section 304 Part I, invoking Exception 4 to Section 300, and acquitted the co‑accused. On appeal, the appellant argued that procedural lapses – non‑examination of an investigating officer, non‑production of the FIR, and the failure of PW‑1 to name other eyewitnesses – and a claim of private defence should overturn the conviction. The Supreme Court held that these procedural deficiencies did not undermine the credibility of the prosecution’s case and that the claim of private defence was unsupported by any credible evidence. It reiterated that private defence must be established on reasonable apprehension of death or grievous hurt and cannot be based on mere quarrel or injuries to the accused. Consequently, the conviction under Section 304 Part I IPC was affirmed and the appeal dismissed.
Issues considered
- The adequacy of the evidence to sustain a conviction under Section 304 Part I IPC despite procedural irregularities.
- Whether the accused could successfully invoke the right of private defence under Sections 96‑106 IPC to justify the killing.
- Whether the incident qualifies as a "sudden quarrel" falling under Exception 4 to Section 300 IPC.
- The relevance of the number and nature of injuries to the accused in determining the aggressor.
Legislation cited
- Code of Criminal Procedure, 1973s. 145
- Indian Penal Code, 1860s. 100, s. 101, s. 102, s. 105, s. 106, s. 300 Exception 4, s. 302, s. 304(Part I), s. 34, s. 96, s. 97, s. 98, s. 99
Subjects
culpable homicide not amounting to murderprivate defencesudden quarrelevidentiary deficienciesIPC Section 304appeal
Judgment
[2008] 13 S.C.R. 1027
-;)
BIHARI RAI A
V.
STATE OF BIHAR (NOW JHARKHAND)
(Criminal Appeal No. 1536 of 2008)
~~
SEPTEMBER 26, 2008
B
[DR. ARIJIT PASAYAT AND DR. MUKUNDAKAM
SHARMA, JJ.]
Penal Code, 1860 :
ss. 304 (Part !), s. 300 Exception 4 - Death caused - By c
three accused - Eye-witnesses to the incident - Motive attrib-
uted - Conviction by trial Court uls 302134 /PC - High Court
altering the conviction of one accused u/s 304 (Part I) and
acquitting the co-accused - On appeal by convicted accused,
.__. Held: In the facts of the case, conviction u/s 304 (Part I) car- D
reef - Non-examination of one of the Investigating Officers,
non-mention of names of other eye-witnesses by the informant-
eye-witness and non-production of Station Diary Entry before
court not fatal for prosecution in the facts of the case - Claim·
of right of private defence also not proved. E
ss. 96 to 98 and 100 to 106 - Right to private defence -
Exercise of - When - Discussed.
Appellant-accused alongwith two co-accused were
---1 prosecuted for causing death of one person. Prosecu- F
tion case was that the accused assaulted the deceased.
PW-1 on hearing the noise, when came near the place of
occurrence, saw the accused assaulting his father. PWs
2, 5, 6 and 7 were other eye-witnesses to the occurrence.
Motive for the incident was said to be long standing dis-
G
pute between the parties. Trial court, placing reliance on
the evidence of eye-witnesses held all the three accused
·--./. guilty of offence u/s 302/34 IPC. High Court altered the
conviction of appellant-accused to one u/s 304 Part I find-
1027 H
1028 SUPREME COURT REPORTS [2008] 13 S.C.R.
A ing that the case fell u/s. 300 Exception 4. The two co-
accused were acquitted.
In appeal, the appellant-accused contended that
conviction was not called for in view of the facts that in
Fardbeyan, PW-1 did not mention the names of PWs 2, 6,
8 and 7; that the assault was done in private defence; that
one of the Investigating Officers was not examined; and
that first information regarding the incident which was
recorded in the station entry was not produced in the
Court.
c Dismissing the appeal, the Court
HELD: 1. The accused has been rightly convicted u/
s. 304(Part I) IPC. Non-examination of one of the lnvesti·
gating Officers, does not in any way corrode the credibil·
D ity of the prosecution version. Non-mention of the names
of PWs 2, 6 and 7 by P.W. 1 is also not fatal. He on hearing
the cries of his father (the deceased) was rushing towards
the place of occurrence. Obviously, the focus was on what
was happening to his father. In any event, inspite of inci·
E sive cross-examination nothing fragile was surfaced in his
evidence. It has also been established by prosecution that
the Station Diary Entry related to some vague information
about disturbance in the village, cannot take place of the
FIR. [Paras 10, 11, 12 and 19) [1037,B; 1034,D-G)
F 2.1 The right of private defence as claimed by the ac·
cused persons have been rightly discarded. Merely be·
cause there was a quarrel and some of the accused per-
sons sustained injuries, that does not confer a right of
private defence extending to the extent of causing death
G as in this case. Though such right cannot be weighed in
golden scales, it has to be established that the accused
persons were under such grave apprehension about the
safety of their life and property that retaliation to the ex-
tent done, was absolutely necessary. No evidence much
H less cogent and credible was adduced in this regard. The
BIHARI RAI v. STATE OF BIHAR 1029
~
(NOW JHARKHAND)
High Court has referred to the evidence of PWs. 2, 6 and A
7 to conclude that just before the arrival of PW 1 at the
scene of occurrence, there was a quarrel between the de-
ceased and the accused. In that view of the matter, the High
'
~
__ _,, Court accepted the plea that the occurrence took place in
the course of sudden quarrel. [Para 16,17] [1036,E,H] B
2.2 The number of injuries is not always a safe crite-
rion for determining who the aggressor was. It cannot be
stated as an universal rule that whenever the injuries are
on the body of the accused persons, a presumption must
necessarily be raised that the accused persons had c
caused injuries in exercise of the right of private defence.
The defence has to further establish that the injurtes so
caused on the accused probabilises the version of the
right of private defence. Non-explanation of the injuries
sustained by the accused at about the time of occurrence
~ D
or in the course of altercation is a very important circum-
. stance. But mere non-explanation of the injuries by the
prosecution may not affect the prosecution case in all
cases. This principle applies to cases where the injuries
sustained by the accused are minor and superficial or
where the evidence is so clear and cogent, so indepen- E
dent and disinterested, so probable, consistent and cred-
itworthy, that it far outweighs the effect of the omission
on the part of the prosecution to explain the injuries. [Para-
13) [1034,G-H; 1031,A-C]
'~
Lakshmi Singh v. State of Bihar AIR 1976 SC 2263 - F
referred to.
2.3 A plea of right of private defence cannot be based
on surmises and speculation. While considering whether
the right of private defence is available to an accused, it is
G
not relevant whether he may have a chance to inflict severe
and mortal injury on the aggressor. In order to find whether
...... the right of private defence is available to an accused, the
entire incident must be examined with care and viewed in
its proper setting. [Para 13] [1035,C-D] [1035,C-O]
H
1030 SUPREME COURT REPORTS [2008) 13 S.C.R. ,.._,.
A 2.4 The plea of right of private defence 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 tres-
~-
B pass, and attempts at such offences in relation to prop-
erty. To claim a right of private defence extending to volun-
tary causing of death, the accused must show that there
were circumstances giving rise to reasonable grounds for
apprehending that either death or grievous hurt would be
caused to him. The burden is on the accused to show that
c he had a right of private defence which extended to caus-
ing of death. [Para 13] [1035,E; 1035,G-H]
2.5 The right commences, as soon as a reasonable
apprehension of danger to the body arises from an at-
D tempt, or threat to commit the offence, although the of- +-
fence may not have been committed but not until that there
is that reasonable apprehension. The right lasts so long
as the reasonable apprehension of the danger to the body
continues. [Para 14] [1036,A-B]
E Jai Dev v. State of Punjab AIR 1963 SC 612; Rizan and
Anr. vs. State of Chhattisgarh, through the Chief Secretary,
Govt. of Chhattisgarh, Raipur, Chhattisgarh 2003 (2) SCC 661;
Sucha Singh and Anr. v. State of Punjab 2003 (7) SCC 643 -
relied on. r-.
F
Case Law Reference
AIR 1976 SC 2263 Referred to. Para 13
AIR 1963 SC 612 Relied on. Para 14
G 2003 (2) sec 661 Relied on. Para 15
2003 (7) sec 643 Relied on. Para 15
......
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 1536 of 2008
H
BIHARI RAI v. STATE OF BIHAR 1031
-). (NOW JHARKHAND) [DR. ARIJIT PASAYAT, J.]
From the final Judgment and Order dated 25/1/2006 of A
the High Court of Jharkhand at Ranchi in Crl. Appeal No. 51 of
1988 p
Varinder Kumar Sharma for the Appellant.
_..J,
Anil Kr. Jha for the Respondent. B
The Judgment of the Court was delivered by
i
DR. ARIJIT PASAYAT, J. 1. Leav!3 granted.
2. Challenge in this appeal is to the judgment of a Division
Bench of the Jharktiand High Court partially allowing the ap- c
peal of the appellant, while directing acquittal of co-accused
persons. The appellant was convicted for an offence punish-
able under Section 302 read with Section 34 of the Indian Pe"
nal Code, 1860 (in short 'IPC') by learned Vth Additional Ses-
• -;1- sions Judge, Dumka, in Sessions Case No.156of1980/21 of D
1985. The High Court altered it to Section 304 Part I IPC, and
sentence of seven years was imposed.
<C
'
'!
· 3. The prosecution version in a nutshell i$ as follows:
-< i
Ramfali Rai (PW.1) is the son of Sadri Rai (hereinafter E
referred to as the 'deceased'). There was a long standing dis-
pute pending between the appellant's and the deceased's fam-
-<
• ily. Proceedings were initiated under Section 145 of the Code
..i
of Criminal Procedure, 1973 (in short 'Cr.P.C.') and several suits
~
were also filed. The dispute between the two families was pend- F
ing from tbe year 1952 and according to the prosecution, it is
said to be the motive for the unfortunate occurrence.
On 28.6.1978, the deceased left for his field accompa-
nied by his servant Mantu Rai. Ramfali Rai (PW.1) stayed at
home and at about 9.00 a.m., he heard shouts, "Maro Maro" G
and came out of the house and started running towards the north
., from where the shouts were emanating. Reaching some dis-
__,_
tance, he found his father, Sadri Rai, being chased by the ac-
cused-appellant Bihari Rai and the other two accused. Tulsi Rai
and Ghutru Rai, were also found at that place. Accused Bihari H
1032 SUPREME COURT REPORTS [2008] 13 S.G.R.
·V
A Rai, inflicted three blows - two on the head and one on the
hand of the deceased-Sadri Rai, and the deceased fell down
and the accused 2 and 3 also gave lathi blows and thereafter
all the three accused left the place. The occurrence was wit-
nessed by Ramfali Rai (PW.1), Horii Rai (PW.2}, Kuwa Rai
-
~-
B (PW.5), Gopi Rai (PW.6) and Jarman Rai (PW. 7). In the mean-
time, information was received at Jama Police Station by Sudhir
Kumar Sinha, Sub-Inspector, that some occurrence had taken
placei in the village - Barudih. The said Sub-Inspector, after
making an entry in the station diary, left for the scene of occur-
c rence and reached there, where the fardbeyan, Ext. 5, given by
PW.1, was recorded at 3.00 p.m. The said fardbeyan was reg-
istered as a complaint and the printed first information report of
the said complaint is Ext.6. Ext.1 is the signature of Ramfali
Rai (PW.1) in the said complaint, Ext.5. Investigation was taken
up and the inquest was conducted, which stands marked as
D ~-
Ext.2/2, during which witnesses were examined. After the in-
quest, the body was sent to the hospital with a request to the
Doctor to conduct autopsy. Dr. Upendra Prasaad Sinha (PW.9),
Civil Assistant Surgeon, Sadar Hospital, Dumka, conducted
post-mortem on the body of the deceased, Badri Rai, and he
E found the following injuries:
(i) Incised wound 1" x Y2" x 1" on outer side of left arm;
(ii) Incised wound 8" x 1" x 4" cutting the posterior left
side of the scalp bone including the brain substance
F with a large haemorrhage (in the post mortem report 1-
the expression "haematoma" and not haemorrhage
as has been deposed by the Doctor inside the brain
substance;
(iii) Incised wound 6" x 1" x 31/2" cutting the posterior
G
right side of the scalp bone including the brain
substance with a large haemorrhage (here also the
expression in the post mortem report is haematoma)
inside the brain substance;
H The doctor issued the post mortem certificate, Ext. 4, with
BIHARI RAJ v. STATE OF BIHAR 1033
-), (NOW JHARKHAND) [DR. ARIJIT PASAYAT, J.]
his opinion that injuries (ii) and (iii) found on the body are suffi- A
cient in the ordinary course of nature to cause death and that
death must have occurred within 36 hours.
I
4. After completion of investigation, the eharge sheet was
filed against the accused persons.
-·-' B
5. The Trial Court placed reliance on the evidence of the
eye-witnesses PWs. 1, 2, 5, 6 andr 7 and found the appellant
and the co-accused persons guilty. In appeal, the High Court
'1 found that Exception 4 to Section 300 IPC applied and accord-
ingly directed conviction of the appellant in terms of Section c
304 Part-I IPC and sentenced him to undergo rigorous impris-
onment for seven years. However, the co-accused persons were
acquitted. In appeal before the High Court, the primary stand
was that in the fardbeyan given by PW.1 the names of PWs. 2,
6 and 7 had not been given. Additionally, it was submitted that
D
-~ having accepted that the occurrence took place in course of
sudden quarrel, the trial Court should have accepted the plea
relating to right of private defence.
6. In the judgment the accused persons were described
as A 1, A2 and A3. The present appeal is by A 1. E
7. The High Court found that the evidence of PW.1 was to
the effect that on hearing the cries of his father he came out of
the house, ran towards the place and found the appellant inflict-
ing injuries on the deceased. It was therefore, possible that he
' -----':: could not have noticed the presence of PWs.2,6 and 7. How- F
ever PW 6 has categorically stated about the presence of all
the eye witnesses. So far as the plea relating to right of private
defence is concerned, it is to be noted that no evidence in that
regard was adduced. On the contrary, the High Court referred
to the evidence of PWs. 2,6 and 7 to the effect that just before G
the occurrence the accused and the first deceased had quar-
reled and thereafter first accused inflicted blows with an axe,
...... which he had in his hand, on the deceased. PW 1 was not
present when the quarrel commenced and he came to the scene
of occurrence on hearing the cries of his father and saw the H
.
1034 SUPREME COURT REPORTS [2008) 13 S.C.R.
>.. -
A appellant inflicting blows on the deceased. In that background
Exception 4 to Section 300 was applied.
8. In support of the appeal, the stands taken before the
High Court have been reiterated by learned counsel for the ap-
pellant. Learned counsel for the state on the other hand sup-
B ported the judgment of the High Court. ... .
9. It needs to be noted that in addition to the stand taken
before the High Court learned counsel for the appellant submit-
ted that the 1.0. had not been examined in the preseflt case and t
c first information regarding the incident which was recorded ii)
the station entry has also not been produced in the Court. It is
also pleaded that since right of private defence was exercised
conviction cannot be recorded.
10. So far as the stand regarding non-mention of the name
D of PWs 2,6 and 7 are concerned, it is to be noted that as rightly
observed by the trial court and the High Court on hearing the
cries of his father the deceased PW 1 was rushing towards the
place of occurrence. Obviously, the focus was on what w,~s hap-
pening to his father. In any event, inspite of incisive cross-ex-
E amination nothing fragile has surfaced in his evidence.
11. It has also been established by prosecution that the
station diary entry related to some vague information about dis-
turbance in the village, that cannot take place of the FIR.
F 12. So far as the non-examination of one of the 1.0. is con-
cerned, it is to be noted that the officer in question had only con-
ducted the inquest. The inquest report was exhibited without any
objection and there was no challenge to the correctness of the re-
port. That being so, non-examination ofthe officer in question does
not in any way corrode the credibility of the prosecution version.
G
13. The number of injuries is not always a safe criterion
for determining who the aggressor was. It cannot be stated as
a universal rule that whenever the injuries are on the body of the .v
accused persons, a presumption must necessarily be raised
H that the accused persons had caused injuries in exercise of the
-). BIHARI RAI v. STATE OF BIHAR 1035
(NOW JHARKHAND) [DR. ARIJIT PASAYAT, J.j
right of private defence. The defence has to further establish A
that the injuries so caused on the accused probabilises the ver-
sion of the right of private defence. Non-explanation of the inju-
ries sustained by the accused at about the time of occurrence
. ... or in the course of altercation is a very important circumstance .
But mere non-explanation of the injuries by the prosecution may B
not affect the prosecution case in all cases. This principle ap-
plies to cases where the injuries sustained by the accused are
minor and superficial or where the evidence is so clear and
cogent, so independent and disinterested, so probable, con-
sistent and creditworthy, that it far outweighs the effect of the c
omission on the part of the prosecution to explain the injuries.
(See: Lakshmi Singh v. State of Bihar (AIR 1976 SC 2?63). A
plea of right of private defence cannot be based on surmises
and speculation. While considering whether the right of private
-~ defence is available to an accused, it is not relevant whether he
D
may have a chance to inflict severe and mortal injury on the
aggressor. In order to find whether the right of private defen9e
is available to an accused, the entire incident must be exam-
ined with care and viewed in its proper setting. 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 exercis- E
ing 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 tres-
-~
pass, and attempts at such off~nces in relation to property. Sec- .
tion 99 lays down the limits of the right of private defence. Sec- F
tions 96 and 98 give a right of private defence against certain
offences and acts. The right given under Sections 96 to 98 and
100 to 106 is controlled by Section 99. To claim a right of pri-
vate defence extending to voluntary causing of death, the ac-
cused must show that there were circumstances giving rise to G
reasonable grounds for apprehending that either death or griev-
-J ous hurt would be caused to him. The burden is on the accused
to show that he had a right of private defence which extended
to causing of death. Sections 100 and 101, IPC define the limit
and extent of right of private defence. H
1036 SUPREME COURT REPORTS (2008] 13 S.C.R.
A 14. Sections 102 and 105, IPC deal with commencement
and continuance of the right of private defence of body and prop-
erty respectively. The right commences, as soon as a reason-
able apprehension of danger to the body arises from an at-
tempt, or threat to commit the offence, although the offence may
B not have been committed but not until that there is that reason-
).. .
able apprehension. The right lasts so long as the reasonable
apprehension of the danger to the body continues. In Jai Dev v.
State of F'unjab (AIR 1963 SC 612), it was observed that as
soon as the cause for reasonable apprehension disappears
C and the threat has either been destroyed or has been put to
route, there can be no occasion to exercise the right of private
defence.
15. The above position was highlighted in Rizan and An-
D other vs. State of Chhattisgarh, through the Chief Secretary,
Govt. of Chhattisgarh, Raipur, Chhatttisgarh (2003 (2) SCC
661), and Sucha Singh and Anr. v. State of Punjab (2003 (7)
sec 643).
16. Merely because there was a quarrel and some of the
E accused persons sustained injuries, that does not confer a right
of private defence extending to the extent of causing death as
in this case. Though such right cannot be weighed in golden
scales, it has to be established that the accused persons were
under such grave apprehension about the safety of their life and
F property that retaliation to the extent done was absolutely nee- i.
essary. No evidence much less cogent and credible was ad-
duced in this regard. The right of private defence as claimed by
the accused persons have been rightly discarded.
G 17. The High Court has referred to the evidence of PWs.
2,6 and 7 to conclude that just before the arrival of PW 1 at the
scene of occurrence there was a quarrel between the deceased
and the accused. In that view of the matter, the High Court ac- J-
cepted the plea that the occurrence took place in the course of
H sudden quarrel.
BIHARI RAI v. STATE OF BIHAR 1037
(NOW JHARKHAND) [DR. ARIJIT PASAYAT, J.]
18. As rightly observed by the trial court and the High Court A
there was no question of exercise of right of private defence
as claimed by the appellant.
19. The accused has been rightly convicted under Sec-
••. _J tion 304Part1 IPC. Custodial sentence, as imposed, also does
not appear to be inappropriate in any manner. B
20. The appeal deserves dismissal, which we direct.
K.K.T. Appeal dismissed.
--,/
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