JESU ASIR SINGH AND ORS.versusSTATE THROUGH INSPECTOR OF POLICE

A                       JESU ASIR SINGH AND ORS.
                                    v.
                   STATE THROUGH INSPECTOR OF POLICE

                                AUGUST 20, 2007

B                  [DR. ARIJIT PASA YAT ANO D.K. JAIN, JJ.]


          Penal Code, 1860; Ss. 96 to 106, 302, 309 and 341:

         Assault and murder-Right ofprivate defence-Accused Al, A2 and A3
C allegedly attacking deceased at the instigation of their mother, accused A4-
  Deceased succumbed to the injuries-Trial Court found al.I the accused
  guilty of committing the offences u!Ss. 302 and 341 /PC and A4, in addition,
  for committing the offence u!s. 309 /PC and sentenced them to undergo life
  imprisonment-Upholding the conviction of accused Al, A2 and A3, High
D Court directed acquittal of A4-0n appeal, Held: Number of injuries not
  always a safe criterion for determining who the aggressor was-Non-
  explanation of injuries sustained by accused at the time of occurrence/in the
  course of altercation is an important circumstance, but mere non-explanation
  of injuries by the prosecution may not affect the case of the prosecution when
  the injuries sustained by the accused are minor and evidence clear and
E cogent-A plea of right of private defence cannot be based on surmises and
  speculations-In order to find whether such right is available or not, entire
  incident must be examined with care and 'viewed in its proper setting-To
  claim the right of private defence the accused must show the existence of
  circumstances giving rise to reasonable grounds for apprehending death or
F grievous hurt-The right lasts so long as reasonable apprehension nf the
  danger to the body continues-Merely because accused persons sustained
  injuries, that does not confer such right to the extent of causing death as in
  the present case-No cogent and credible evidence adduced by the accused
  to establish that they were under grave apprehension about safety of their
  lives and property that retaliation to the extent of causing death of the
G deceased was absolutely necessary-Hence, appeal dismissed on merit.
          According to the prosecution, there was enmity between the families of
    the deceased and the accused persons as wife of the deceased started living
    with accused, Al by deserting her husband and child. The deceased and his

H                                       92
           JESU ASIR SINGH v. ST ATE THROUGH INSPECTOR OF POLICE              93

child were living only with PW.I, the informant. On the fateful day, accused        A
persons, Al to A3, at the instance of their mother, A4 attacked the deceased
fatally, resulting in his death. PWI raised an alarm, all the accused made
good thei_r escape with the weapons of offences in their hands. Informant took
the deceased to the Government Hospital, where he was declared dead. A
complaint was lodged by her in the Police Station. The bloodstained apparels        B
of the deceased were recovered by the Police. The deceased stated before the
Causality Medical Officer in the Government Headquarters Hospital that
injuries have been sustained by him at the hands of three known persons. On
the same day, Al also appeared before the Medical Officer and stated that the
injuries have also been sustained by him at the hands of a known person.
After completion of the investigation, charges were framed against the accused      O
persons. Trial Court, relying on the evidence of PW 1, found all.-the four
accused persons guilty and found Al to A3 guilty for committing the offences
punishable u/Ss. 302 and 341 and A4 for committing the offence punishable
u/s. 302 r/w Section 34 IPC and sentenced each of them to undergo
imprisonment for life. An appeal was preferred by the accused persons before
the High Court. The High Court upheld the conviction of accused Al, A2 and          D
A3 while discarding the right of private defence but directing acquittal of co-
accused, A4. Hence the present appeal filed by the convicts.

      Accused-appellant contended that the prosecution version is
unbelievable; that the presence of PWl at the place of occurrence is highly         E
doubtful; that when the evidence has been discarded in respect of A4,
conviction could not have been maintained against Al to A3, the present
appellants; and that the aspect of right of private defence has not been properly
considered by the High Court.

      Dismissing the appeal, the Court                                              F
                                                              •
      HELD: 1.1. 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 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    G
establish that the injuries 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 or in the course of altercation is
a very important circumstance. But mere non-explanation of the injurfos by
the prosecution may not affect the prosecution case in all cases. This principle    H
    94                     SUPREME COURT REPORTS                      [2007) 9 S.C.R.
                                                 I
A 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 creditworthy, that it far outweighs
    the effect of the omission on the part of the prosecution to explain t~e injuries.
                                                            (Para 8) (97-H; 98-A-C)

B         Lakshmi Singh v. State of Bihar, AIR (1976) SC 2263, relied on.

          1.2. 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 may have a chance to inflict severe
    and mortal injury on the aggressor. In order to find whether the right of private
C   defence is available to an accused, the entire incident must be examined with
    care and viewed in its proper setting. (Para 8) (98-~-DI

          1.3. To claim a right of private defence extending to voluntary causing
    of death, the accused must show that there were circumstances giving rise tc;
D   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 death. (Para 8) (98-FI
          1.4. The right of private defence commences, as soon as a reasonable
    apprehension of danger to the body arises from an attempt, or threat to commit
E   the offence, although the offence may not have been committed but not until
    there is that reasonable apprehension. The right lasts so long as the
    reasonable apprehension of the danger to the body continues.
                                                          (Para 91(98-G-H;99-A(

          Jai Dev v. State ofPunjab, AIR (1963) SC 612; Rizan and Anr. v. State
p ofChhattisgarh, through the Chief Secretary, Govt. of Chhattisgarh, Raipur,
    Chhatttisgarh, (400312 SCC 661 and Sucha Singh and Anr. v. State ofPunjab,
    (2003) 7 sec 643, relied on.

          1.5. Merely because there was a quarrel and some of the accused
    persons sustained injuries, that does not confer a right of private defence
G   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 property that retaliation to the extent done was absolutely necessary. No
    evidence much less cogent and credible was adduced in this regard. The right
H   of private defence, as claimed by the accused persons, has rightly been
    JESU ASIR SINGH v. STATE THROUGH INSPECTOR OF POLICE [PASA YAT, J.)     95

discarded by the High Court. (Para l l) (99-C-DJ                                   A
        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1090 of
2007.

     From the final Judgment and Order dated 14.02.2006 of the Madurai
Bench of Madras High Court in Criminal Appeal No. 525of1997.           B
        V.J. Francis, A. Radhakrishna and Anupam Mishra for the Appellants.

     R. Sundravardhan, Joseph Aristotle, S. Prabhu Ramasubramanian and
V.G. Pragasam for the Respondent.
                                                                                   c
        The Judgment of the Court was delivered by

        DR. ARIJIT PASAYAT,J. I. Leave granted.

       2. Appellants call in question legality of the judgment rendered by a
Division Bench of the Madras High Court upholding the conviction of the            D
appellants while directing acquittal of the co-accused. Appellants and the co-
accused for the sake of convenience are described as Al, A2, A3 and A4.
The appellants are A 1, A2 and A3 and have been convicted for offence
punishable under Section 302 and 341 of the Indian Penal Code, 1860 (in short
the 'IPC'). A4 was charged for offence punishable under Section 302 read with
Sections 109 and 341 IPC. Each of the appellants was sentenced to undergo          E
imprisonment for life and one month respectively for the aforesaid two offences.

        3. Prosecution version as unfolded during trial is as follows:

       The occurrence is shown to have taken place at about 06.30 a.m. on
18.09.1993, by Al to A4 who wrongfully restraining Gift(hereinafter referred       F
to as 'deceased') and in course of the same transaction at the instigation of
A4, Al to A3 attacked him fatally, resulting in his death: To prove their case
the prosecution examined PWs.I to 15 besides marking Exs.PI to P.30 and
M.Os I to 10. A4 is mother of Al to A3. PW-I is the informant. PW 4 is the
mother of PW.I. PW.4 and A4 are sisters. PW.5 is the wife of Al. PW5's sister      G
is Jenitha, who was the wife of deceased. There was prior enmity between the
two families and they were not in talking terms. This was because Jenitha,
wife of the deceased started living with Al by deserting her husband.

     The deceased married Jenitha about 1112 years prior to the occurrence
and a female child was born to them. The two families were not in talking H
    96                    SUPREME COURT REPORTS                     (2007] 9 S.C.R.

A tenns a month prior to the occurrence. Thereafter, the deceased and his child
    were living only with PW.I. On 10.9.1993 deceased went to the house of Al
    and asked his wife to come back with him and there a quarrel arose. At about
    5.00 p.m. on that day, all the four accused came to the house of PW-I and
    asked her the whereabouts of the deceased and also told her that in their
B   absence .the deceased had called his wife and, therefore, he must mend his
    ways; saying so, they damaged the tube lights, cots and other house-hold
    articles; out of grace no complaint was given. Raja is her son and as he fell
    sick, and was admitted in the hospital on 17.9.93 and by his bed side PWs.
     I, 4 and the deceased were in the hospital. At about 6.30 a.m. on 18.9.93, PW.I
    and the deceased came home to take some coffee to the hospital and near
C   the house of PW 2 when they were proceeding from west to east, the accused
    came from the opposite direction; Al to A3 were anned with weapons, on
    seeing them Gift, the deceased, out of fear, left the cycle and started running
    by a lane near the house of PW.2. Seeing that A4 orally declare<l that as he
    is running, he should not be allowed to run and musr be killed. Her brother,
    i.e. the deceased, thereafter passed the house of PW.2 and.at that stage Al
D   to A3 restrained him; Al cut him twice on his head and when her brother
    attempted to thwart by 5tretching his arms, A2's attack fell on his right hand,
    this was followed by A3 indiscriminately cutting on the other parts of his
    body and as they were so cutting, one of the attacks aimed by A2 landed
    on the left wrist of Al and the attack aimed by A3 landed on the right hand
E   of Al. She shouted and PW 2 came running; at that time, all the accused
    made good their escape with the weapons of offences in their hands. She
    went to the house to get some money to take her brQther to the hospital,
    where she found her house damaged; doors, windows and other things were
    broken; two of her brother's friends, namely, Aaroon, Singh came there and
    with their help she took her brother to the Government Hospital Kottar, where
F   he was pronounced dead. PW. 12 examined her and reduced into writing what
    she, stated. She read it and signed in that complaint which is Ex.P. I. The
    per5onal wearing apparels of the deceased, were bloodstained and they were
    re'covered. PW.2 witnessed the occurrence.

    ' ·     PW I 0 is the Causality Medical Officer in the Government Headquarters
G    Hospital at Nagercoil before whom at 8.00 a.m. on 18.9.1993, the deceased,
     was brought for injuries stated to have been sustained'by him at the hands
     of three known persons. On him he found various symptoms, in all, 22 injuries
     and issued Ex.P.12, accident register. He sent Ex.P.13 intimation to the police
     and Ex.P.14 is the death intimation. According to him, except injury No.3, all
H    the injuries could have been caused by a weapon like an aruval. At 7.45 a~
     JESU ASIR SINGHv. STATE THROUGH INSPECTOR OF POLICE [PASAYAT, J.]       97
Al appeared before him for injuries stated to have been sustained by him at        A
6.30 a.m. at the hands of a known person, by using a cutting knife. He found
two injuries and issued Ex.P. 15, accident register. Ex.P. 13 is the intimation
sent by him to the police regarding the treatment on Al.

      PW. 12 was the head constable who had received information from the
Government Head Quarters Hospital as well as the death intimation of the           B
deceased. PW 14 was the investigating officer, PW 9 is the medical officer
who conducted the post mortem and noted 22 injuries on the body of the
deceased. After completion of the investigatitm charges were framed. The
accused pleaded innocence and false implication. Since the accused persons
pleaded innocence, trial. was conducted. 15 witnesses were examined to further     C
the prosecution version.

       4. Trial court placed reliance on the evidence of PW I and found all the
four persons guilty. An appeal was preferred by the appellants taking the
view that the evidence of PW 1 was not believable. Appellants took the stand
that the deceased was the aggressor who had assaulted A 1 causing two              D
injuries. In any event the accused person had acted in exercise of the right
of private defence and, therefore, no offence was made out. Reliance was
made on the evidence of Exhibit P 20 to contend that the information lodged
by A 1 was not properly enquired into. The High Court analysed the evidence
of PW 1 and held that investigation in respect of Exhibit P20 was conducted        E
properly and the prosecution version did not get affected even if it is held
that there was some lapse in conducting investigation on the basis of Exhibit
P20. The plea of right of private defence was also described. However, the
High Court accepted that evidence was not sufficient to convict A4.

      5. Learned counsel for the appellant submitted that the prosecution          F
version is unbelievable. The presence of PWl is highly doubtful. When the
evidence has been discarded in respect of A4, conviction could not have
been maintained for the present appellants. In any event right of private
defence aspect has not been properly considered by the High Court.

      6. Learned counsel for the State supported the order.                        G
      7. We shall first deal with the plea relating to right of private defence.

     8. Tte number of injuries is not always a safe criterion for detnnining
who the aggressor was. It cannot be stated as a universal rule that whenever
                                                                                   H
    98                     SUPREME COURT REPORTS                      (2007] 9 S.C.R.

A   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 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
B   circumstance. 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 independent and disinterested,
    so probable, consistent and creditworthy, that it far outweighs the effect of
C   the omission on the part of the prosecution to explain the injuries. (See:
    Lakshmi Singh v. State ofBihar (AIR 1976 SC 2263). 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 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
D   to an accused, the entire incident must be examined with care and viewed in
    its proper setting. Section 97 deals with the subject-matter of right of private
    defence. 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
E   of offences of theft, robbery, mischief or criminal trespass, and attempts at
    such 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
     JOO to 106 is controlled by Section 99. To claim a right of private defence
    extending to voluntary causing of death, the accused must show .that there
F   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 death. Sections I 00 and I0 I, IPC define the limit and extent of right
    of private defence.                                                                ·
G         9. Sections 102 and 105, IPC deal with commencement and continuance
    of the right of private defence of body and property respectively. The right
    commences, as soon as a reasonable apprehension of danger to the body
    arises from an attempt, or threat to commit the offence, although the offence
    may not have been committed but not until there is that reasonable
H   apprehension. The right lasts so long as the reasonable apprehension of the
       JESU ASIR SINGH v. STATE THROUGH INSPECTOR OF POLICE [PASAYAT, J .}   99

danger to the body continues. In Jai Dev v. State of Punjab, AIR (1963) SC        A
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 to exercise the right of private defence.

     10. The above position was highlighted in Rizan and Anr. v. State of
Chhattisgarh, through the Chief Secretary, Govt. of Chhattisgarh, Raipur, B
Chhatttisgarh, [2003] 2 SCC 661, and Sucha Singh and Anr. v. State of
Punjab, [2003] 7 SCC 643.

      11 ~ Merely because there was a quarrel and some of the accused
persons sustained injuries, that does not confer a right of private defence       C
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 property that retaliation to the extent done was absolutely necessary. No
evidence much less cogent and credible was adduced in this regard. The right
of private defence, as claimed by the accused persons, has been rightly           D
discarded.

      12. Even if the High Court found the evidence to be not sufficient to
convict A4 that does not in any way affect credibility of PW l's evidence so
far as present appellants are concerned. It is to be noted that there was no
suggestion to PW I that A I acted in exercise of right of private defence,        E
There is not even any material brought in this regard. Certain questions were
put to PW 1 in her cross examination. They are as follows:

           "I do not see directly that the accused had attacked or quarreled
       with Gift earlier to the occurrence.
                                                                                  F
           The accused did not notice me. When the accused chased by
       brother I did not shout. I shouted when the accused attacked my
       brother.

           The 1st accused attacked my brother on his head twice. I could
       not say where the two blows landing on his head. The 2nd accused G
       attacked my brother on his right hand and middle of his head. It is
       not correct to state that I had not deposed in the enquity by police.
       The 3rd accused attacked him on his back, nose, hand and leg. l
       cannot say how many blows he had inflicted. The incident had taken
       place around 15 minutes.
                                                                                  H
    JOO                      SUPREME COURT REPORTS                       [2007) 9 S.C.R.

A                  It is not correct to state that when my brother sustained injuries
              the accused 2,3 and 4 were not present there. It is not correct to state
              that the incident did not ta!.:e place near by the lane of Albert Nayagam's
              house.

                   My brother died only after taking him to hospital. It is correct to
B             state that the police station is located on the way to hospital."

          13. The question put in the cross examination to a great extent
    probabilise the prosecution version. Though questions put in cross-
    examination are not always determinative in finding an accused guilty, they
    are certainly 'relevant.
c
             14. Looked at from any angle the appeal is without merit and is dismissed.

    S.K.S.                                                          Appeal dismissed.