HANUMANTAPPA BHIMAPPA DALAVAI & ANRversusSTATE OF KARNATAKA

                        [2009] 5 S.C.R. 286


A        HANUMANTAPPA BHIMAPPA DALAVAI & ANR.
                                  II.                                     ,.-
                     STATE OF KARNATAKA
                (Criminal Appeal No. 672 of 2005)
                         MARCH 31, 2009
B                                                                     '
           [DR. ARIJIT PASAYAT AND ASOK KUMAR
                        GANGULY, JJ.]

        EVIDENCE ACT, 1872:
c      s.105 - Burden to prove the case of self-defence - Held:
  Is on the person who sets up the plea - To claim a right of
  private defence extending to voluntarily causing of death,
  accused must show that there were circumstances giving rise
  to reasonable grounds for apprehending that either death or
D
  grievous hurt would be caused to him - In the instant case
  plea of right of private defence is without any substance - Trial
  court and High Court relying on injured eye witnesses, rightly
  convicted the accused - Penal Code, 1860 - Ss.96, 97 and
  100; ss.302 and 326.
E
       The accused-appellants and the complainant party
  belonged to the same village. A quarrel took place
  between the complainant (PW5) and A-1 with regard to
                                                                          -
  the jail hedges overgrown by the side of the compound
F of  A-1 which were obstructing the path of the villagers.
  When PW5 asked A-1 to get the overgrown hedges cut,
  the latter was stated to have abused the former. On the
                                                                      '
  following day when 'M', the younger brother of PW-5
  reached the village and the family members told him
G about the misbehaviour of A-1, he followed by PW5, PWs
  18-20, PW24'and PW26, went to the hotel of A-1 and
  questioned him about his behaviour with PW5. On this
  A-1 brought a crow bar from inside the hotel and hit with
  it on the head of PW-5. Sons of A-1, namely, A-2 and A-3
H                                286
 HANUMANTAPPA BHIMAPPA DALAVAI & ANR. v. STATE       287
               OF KARNATAKA

brought a stick and an iron rod respectively. A-3 hit 'B' A
the elder brother of PW5. A-1 further gave a crow-bar
blow to PW18 and A-2 hit her with the stick. Meanwhile
other persons reached the place and saved the victims.
'M' and 'B' were taken for treatment. 'M' was declared
brought dead. 'B' died later. The trial court did not B
believe the case of the accused regarding private defence
and convicted and sentenced them u/s 302 IPC. A-1 was
also convicted and sentenced u/s 326 IPC. The High
Court affirmed the conviction.

     In the instant appeal, filed on behalf of the accused, C
it was contended for the appellants that this was a case
where the right of private defence was clearly applicable
and the prosecution version was not believable and,
therefore, they were not liable to be convicted.
                                                            D
     Dismissing the appeal, the Court
     HELD: 1.1. Under s.105 of the Evidence Act, 1872, 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 E
possible for the 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 F
taking the plea of the right of private defence is not
required to call evidence; he can establish his plea by
reference 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 G
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 harm
                                                           H
    288        SUPREME COURT REPORTS            [2009) 5 S.C.R.


A 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. [Para 7) [293-
  B-F]
                                                                       -
         Munshi Ram and Ors. v. Delhi Administration: AIR 1968
8                                                                 ..
    SC 702; State of Gujarat v. Bai Fatima AIR 1975 SC 1478;
    State of U.P. v. Mohd. Musheer Khan AIR 1977 SC 2226;
    Mohinder Pal Jolly v. State of Punjab AIR 1979 SC 577;
    Salim Zia v. State of U.P. AIR 1979 SC 391 and Lakshmi
    Singh v. State of Bihar AIR 1976 SC 2263, referred to.
c
        1.2. To claim a right of private defence extending to
    voluntarily causing of death, the accused must show that
    there were circumstances giving rise to reasonable
    grounds for apprehending that either death or grievous
o   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. [Para 9) (295-E-F]

          Jai Dev. v. State of Punjab AIR 1963 SC 612, referred
    to.
E
       1.3. In order to find whether right of private defence
  is available or not, the injuries received by the accused,
  the imminence of threat to his safety, the injuries caused
  by the accused and the circumstances whether the
F accused had time to have recourse to public authorities
  are all relevant factors to be considered. Thus, running
  to house, fetching a tabli and assaulting the deceased are
  by no means a matter of course. These acts bear stamp
  of a design to kill and take the case out of the purview of
G p~ivate defence. [Para 11) [296-C-D]

       Biran Singh v. State of Bihar AIR 1975 SC 87; Sekar
    @Raja Sekharan v. State represented by Inspector of Police,
    Tamil Nadu 2002 (7) Supreme 124 and Ananta Deb Singha
    Mahapatra & Ors. v. State of WB. 2007 (13) SCC 374,
H referred to.
                  HANUMANTAPPA BHIMAPPA DALAVAI & ANR. v. STATE          289
           ~
                                OF KARNATAKA
                      1.4. In the instant case, there were a large number of    A
     r·
                 eye witnesses who also had suffered injuries. PWs.
                 5,8,19,22 and 26 are such witnesses whose version is
                 clear, cogent and credible and there is no reason to
......
                 discard their version. The trial court and the High Court
          #
                 have rightly relied upon their evidence. Additionally          B
                 when the factual scenario is tested on the touchstone of
                 legal principles relating to right of private defence, it is
                 clear that the plea is without substance. [Para 12) [296-
                 E-F]
                                      Case Law Reference:                       c
                        AIR 1968 SC 702       referred to          Para 7
                        AIR 1975 SC 1478      referred to          Para 7
          _._.          AIR 1977 SC 2226      referred to          Para 7       D
                        AIR 1979 SC 577       referred to          Para 7
                        AIR 1979 SC 391       referred to          Para 7
"!
                        AIR 1976 SC 2263      referred to          Para 9
                                                                                E
                        AIR 1963 SC 612       referred to          Para 10
                        AIR 1975 SC 87        referred to          Para 11
                        2002 (7) Supreme 124 referred to           Para 11

          '             2001 (13) sec 374     referred to         Para 11
                                                                                F

                     CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
                 No. 672 of 2005.

                     From the Judgment & Order dated 27.10.2004 of the High     G
                 Court Karnataka at Bangalore in Crl. Appeal No. 2 of 2002 .
                                •
                     Rajesh Mahale for the Appellant.

                     Sanjay R. Hegde, A. Rohen Singh, Vikrant Yadav and
                 Nishant Mishra for the Respondents.                            H
    29Q---   SUPREME COURT REPORTS                [20091 5 s.c.R.


A      The Judgment of the Court was delivered by

       DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is
  to the judgment of a Division Bench of the Karnataka High
  Court upholding the convictions of the appellants for offence
  punishable under Section 302 of the Indian Penal Code, 1860        \
8 (in short the 'IPC'). The appellant No.1 was additionally
  convicted for offence punishable under Section 326 IPC.

        2. Prosecution version in a nutshell are as follows:

c      The accused nos.1 to 3 - the deceased and injured
  belonged to Salahalli Village. There is a tea shop of the
  accused No.1 situated outside the village, by the side of the
  compound of which a public road is situated, some jail hedges
  have grown in the said land of accused No.1 by the other side
  of the road, which have over grown obstructing to some extent
0
  the public path. With regard to the inconvenience caused to the
  passers-by and the persons taking vehicles like tractor, the
  complainant - lrappa Aijappa Kuri (P.W.5) often complained
  to the accused No. I to cut the excess hedges, to which the
E accused No.1 paid no heed. On 1.2.1995, while coming home,
  the complainant asked the accused No.I to cut the excess
  growth of hedge for which the accused No.1 became angry and
  threatened that he would see the person who dared to cut the
  hedges and also abused the complainant. The next day
  evening, the complainant's younger brother - Mahadev (first
F deceased) came from Gokak and when the complainant and
  his family members told about the incident that had taken place
  on the previous day, Mahadev immediately expressed his
  desire to go to the accused No.1 and confront him about this.
  Then imniediately, he left the place followed by the complainant
G (P.W.5), complainant's wife - Lalithawa Kuri (P.W.18),
  complainant's elder brother - Basappa Sidnal (the second
  deceased), complainant's sister - Suit Yallawwa Dundappa
  Shidnal (P.W.19), complainant's brother- Siddappa Ajjappa
  Kuri (P.W.20), complainants sisters-in-law- Renuka Kuri (P. W.
H
\      HANUMANTAPPA BHIMAPPA DAI.AVAi &ANR. v. STATE             291
           OF KARNATAKA [DR. ARlJIT PASAYAT, J.]

       24) and Smt. Anasuya Sidnal (P.W.26). When Mahadev A
       questioned the accused No. 1 about his behaviour with the
       complainant the previous day, the accused No. I became angry
      about the audacity of Mahadev in coming to his hotel about that
,,     matter and to question him; and challenging Mahadev, he went
       inside the hotel, brought a crow-bar and by that instrument gave B
       a blow on the head of Mahadev. In the meantime, the accused
       No.1 's son - Vittal (accused No.2) brought a stick and another
       son-Maruti (accused No.3) brought an iron rod saying that these
       people would not be allowed to go, and started assaulting them.
       The accused No-3 assaulted Basappa by means of an iron rod c
       on account of which Basappa started to bleed. The accused
       No.1 gave a blow on the complainant's wife Lalithavva by
      means of the crow bar on account of which she fell down and
      when he attempted to give a blow by means of that crow-bar
      on the complainant, the complainant avoided it but the blow fell
                                                                        D
      on his left hand and he sustained injury. The accused No.2
      attacked P.W.18 by means of a stick. In the meantime, the
      people assembled and saved these persons. But, by that time
      Mahadev and Basappa had sustained grievous injuries. The ·
      injured were taken to Ramadurga in the jeep of Prakash
      (P.W.25). The doctor at Ramadurga examined Mahadev and E
      pronounced him dead. For further treatment, Basappa and
      Lalithavva were taken to Belgaum hospital where Basappa
      died later. In the meantime, the police had received information
      in Kattakol Police Station, which had jurisdiction over the area
"'    and the. Sub-Inspector of Police went to Ramadurga with a F
      Police Constable and took the complaint, on the basis of which
      a case was registered and investigation was taken up. The
      accused were not available. They were traced on 9.2. 1995
      and were arrested and were produced before the learned
      Magistrate. They were remanded to judicial custody. After G
--'   investigation, the Police filed a charge sheet against the
      accused.

          The accused pleaded not guilty to the charges and claimed
                                                                       H
    292        SUPREME COURT REPORTS                [2009] 5 S.C.R.
                                                                         ~




A to be tried. The prosecution examined in all 30 witnesses out
  of whom PWs. 5, 18, 19,20 to 26 are eye witnesses. The
  accused No.1 advanced a theory of self defence contending
  that the injured persons and the deceased persons had come
  to his hotel armed with deadly weapons challenging when he             .,
B was alone in the hotel and challenging him they attempted to
  assault him. He contended when he ducked to avoid a blow, it
  fell on the head of the person, who was holding him and in
  consequence that person sustained injuries and that in the
  meantime, he managed to snatch one of the weapons held by                   I-


c the assailants and in self defence, a wide hit was given by him
  to the assailants and thereafter he escaped from the blows. It
  was his contention that he was not responsible for any injuries
  found on the deceased and the injured.

          4. The trial court disbelieved the plea of right of private
D defence and held the appellant guilty as aforestated.

         5. In appeal the High Court upheld the conviction
                                                                              r-
    discarding the stand of the appellant that this was a case of
    right of private defence.
E
         6. In support of the appeal it was submitted that this is a
    case where the right of private defence is clearly applicable,
    and prosecution version is not believable. Learned counsel for
    the respondent-State on the other hand supported the judgment.
F       7. 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'. It merely indicates that nothing is an offence which is
  done in the exercise of such right. Whether in a particular set
G of circumstances, a person acted in the exercise of the right of
  private defence is a question of fact to be determined on the         ,._
  facts and circumstances of each case. No test in abstract for
  determining such a question can be laid down. In determining
  this question of fact, the Court must consider all the surrounding
H
           HANUMANTAPPA BHIMAPPA DALAVAI & ANR. v. STATE 293
               OF KARNATAKA [DR. ARIJIT PASAYAT, J.]
    ~
          circumstances. It is not necessary for the accused to plead in      A
          so many words that he acted in self-defence. If the
          circumstances show that the right of private defence was
          legitimately exercised, it is open to the Court to consider such
          a plea. In a given case the Court can consider it even if the
          accused has not taken it, if the same is available to be            B
          considered from the material on record. Under Section 105 of
          the Indian Evidence Act, 1872, 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 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
                                                                              c
          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 the right of private defence is not required to call
          evidence; he can establish his plea by reference to                 D
    -.:
          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        E
          and probable version satisfying the Court that the 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          F
          by showing preponderance of probabilities is favour of that plea
          on the basis of the material on record. (See Munshi Ram and
          Ors. v. Delhi Administration: AIR 1968 SC 702: State of
          Gujarat v. Bai Fatima: AIR 1975 SC 1478: State of U.P. v.
          Mohd. Musheer Khan: AIR 1977 SC 2226: and Mohinder Pal              G


-
          Jolly v. State of Punjab: AIR 1979 SC 577). Sections 100 to
          101 define the extent of the right of private defence of body. If
          a person has a right of private defence of body under Section
          97, that right extends under Section 100 to causing death if
                                                                              H
    294         SUPREME COURT REPORTS               [2009] 5 S.C.R.


A there is reasonable apprehension that death or grievous hurt          '
    would be the consequence of the assault. The oft quoted
    observation of this Court in Salim Zia v. State of U.P. (AIR 1979
    SC 391 ), runs as follows:

              "It is true that the burden on an accused person to
B         establish the plea of self-defence is not as onerous as the   •
          one which lies on the prosecution and that, while the
          prosecution is required to prove its case beyond
          reasonable doubt, the accused need not establish the plea
          to the hilt and may discharge his onus by establishing a
c         mere preponderance of probabilities either by laying basis
          for that plea in the cross-examination of the prosecution
          witnesses or by adducing defence evidence."

       8. The accused need not prove the existence of the right
D of private defence beyond reasonable doubt. It is enough for
  him to show as in a civil case that the preponderance of              ).-


  probabilities is in favour of his plea.

        9. The number of injuries is not always a safe criterion for
  determining who the aggressor was. It cannot be stated as a
E 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 caused injuries in exercise of the
  right of private defence. The defence has to further establish
  that the injuries so caused on the accused probabilises the
F version of the right of private defence. Non-explanation of the
  injuries 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 not affect the prosecution case in all cases.
G 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 independent and disinterested, so
  probable, consistent and credit-worthy, that it far outweighs the
  effect of the omission on the part of the prosecution to explain
H
         HANUMANTAPPA BHIMAPPA DALAVAI & ANR. v. STATE                  295
             OF KARNATAKA [DR. ARIJIT PASAYAT, J.]

    "   the injuries. [See Lakshmi Singh v. State of Bihar (AIR 1976
        SC 2263)). In this case, as the Courts below found there was
                                                                                A

        not even a single injury on the accused persons, while PW2
        sustained large number of injuries and was hospitalized for
        more than a month. A plea of right of private defence cannot
        be based on surmises and speculation. While considering                 B
    '   whether the right of private defence is available to an accused,
        it is 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
                                                                                c
-       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 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            D
        offences in relation to 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 and acts. The right
        given under Sections 96 to 98 and 100 to 106 is controlled by
        Section 99. To claim a right of private defence extending to            E
        voluntary causing of death, the accused must shows 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 he
        had a right of private defence which extended to causing of             F
    ~
        death. Sections 100 and 101, IPC define the limit and extent
        of right of private defence.

             10. Sections 102 and 105, IPC deal with commencement
        and coptinuance of the right of private defence of body and
                                                                        G
        property respectively. The right commences, as soon as a
I
        reasonable apprehension of danger to the body arises from an
        attempt, or threat, or commit the offence, although the offence
        may not have been committed but not until that there is that
        reasonable apprehension. The right lasts so long as the
                                                                        H
    296       SUPREME COURT REPORTS                 [2009] 5 S.C.R.


A reasonable apprehension of the danger to the body continues.
  In Jai Dev. v. State of Punjab (AIR 1963 SC 612), it was
  observed that as soon as the cause for reasonable
  apprehension disappears and the threat has either been
  destroyed or has been put to route, there can be no occasion
B to exercise the right of private defence.
                                                                        '
       11. In order to find whether right of private defence is
  available or not, the injuries received by the accused, the
  imminence of threat to his safety, the injuries caused by the
  accused and the circumstances whether the accused had time
c to have recourse to public authorities are all relevant factors to          .
  be considered. Thus, running to house, fetching a tabli and
  assaulting the deceased are by no means a matter of course.
  These acts bear stamp of a design to kill and take the case
  out of the purview of private defence. Similar view was
D expressed by this Court in Biran Singh v. State of Bihar (AIR
  1975 SC 87), in Sekar@Raja Sekharan v. State represented
  by Inspector of Police, Tamil Nadu [2002 (7) Supreme 124)
  and in Ananta Deb Singha Mahapatra & Ors. v. State of WB.
  r2001 (13) sec 374J.
E
       12. It is to be noted that there were a large number of eye
  witnesses who also had suffered injuries. PWs. 5,8, 19,22 and
  26 are such witnesses whose version is clear, cogent and
  credible and there is no reason to discard their version. Trial
  court and the High Court have rightly relied upon their evidence.
F Additionally when the factual scenario is tested on the               .,
  touchstone of legal principles relating to right of private defence
  are concerned it is clear that the plea is without substance.
  Above being the position present appeal is sans merit,
  deserves dismissal, which we direct.
G
                                                Appeal dismissed.
    R.P.
                                                                             ....