Holding

Only accused Ramesh exceeded the right of private defence and is guilty of culpable homicide not amounting to murder under Section 304 Part II IPC; all other accused are acquitted.

Summary

Eight accused were tried for murder, assault and illegal possession of arms after a violent clash in a Madhya Pradesh village. The trial court acquitted all, finding that the prosecution witnesses were unreliable and that the accused acted in private defence, especially since one accused (Prabhu) had sustained serious injuries unexplained by the prosecution. The High Court reversed the acquittal, convicting all except one, holding that the right of private defence was exceeded. The Supreme Court held that the High Court erred in overturning the acquittal where two reasonable views existed, emphasized that a plea of private/self‑defence can be raised at any stage and that the burden under Section 105 Evidence Act is not as heavy as on the prosecution. It found that only accused Ramesh exceeded the right of private defence by firing after the aggressors were fleeing, and thus convicted him under Section 304 Part II IPC (and the Arms Act), while acquitting the remaining accused.

Issues considered

The propriety of overturning an acquittal on appeal when two reasonable conclusions are possible
Whether a plea of private/self‑defence is available even if not expressly taken under Section 313 Cr.P.C.
The extent of the right of private defence under Sections 96‑102 IPC, including whether it can extend to causing death
The effect of unexplained injuries to an accused on the credibility of the prosecution case
The applicability of Section 105 Evidence Act regarding the burden of proof for private defence
The liability of an accused who exceeds the right of private defence, specifically under Section 304 Part II IPC versus Section 302 IPC
The relevance of unlawful assembly provisions (Sections 148, 149 IPC) when the assembly acts in private defence

Legislation cited

Arms Act, 1959s. 25, s. 27
Code of Criminal Procedure, 1973s. 313
Indian Evidence Act, 1872s. 105
Indian Penal Code, 1860s. 100, s. 101, s. 102, s. 147, s. 148, s. 149, s. 151, s. 300, s. 302, s. 304, s. 96, s. 97, s. 99

Subjects

private defenceself‑defenceburden of proofSection 105 Evidence Actunlawful assemblySection 148 IPCSection 149 IPCSection 304 IPCtransferred maliceappellate jurisdictionbenefit of doubt

Judgment

KASHI RAM AND ORS. A
v.
STATEOFM.P.

OCTOBER 17, 2001

[DR. A.S. ANAND, C.J., R.C. LAHOTI AND ASHOK BHAN, JJ.] B

Penal Code, 1860 :

Sections 96, 97, 99, JOO, 101and102:

Accused charged with murder and causing injuries'___One of the accused c
also injured in the incident-Trial Court, disbelieved the testimony of the
prosecution witnesses as to genesis of the incident and drawing an inference
that members of prosecution party opened an attack on accused and accused
opened fire in exercise of right of private defence and ordered acquittal of all
the accused-High Court reversing it-On appeal held, all accused except one
D
exceeding his right of private' defence-The accused who exceeded his right of
private defence convicted-Others acquitted.

Plea of self defence--,-When could be taken-It can be taken at any stage
of the trial including cross examination, recording of statements of the accused
by adducing defence evidence and during the course of submission, relying on E
probabilities and circumstances.

Self defence-Extent of-Extends to causing death so long as apprehen-
sion continues-Can be exercised for defence of person or property of another
as well.
F
Ss. I48-149-Unlawful assembly and right of private defence-So long
as accused act in right of private defence their object of assembly is not
considered unlawful-However when they exceed their right ofprivate de.fence
the assembly becomes unlawful-Even in such situations, only such members
who exceeded such right of private defence alone would be liable to be
punished. G
Evidence Act, 1872 :

S.105-Burden of proof-Scope and ambit of-The burden on the ac-
cused is not so heavy as on the prosecution-If on material available on record
a preponderance ofprobabilities is raised which renders the plea of the accused H
263
264 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A plausible, same should be accepted and benefit of doubt should be extended to
the accused persons.

Appeal-lnte~ference by High Court-When High Court deals into an
appeal against acquittal and if two views are reasonably possible, one support-
ing the acquittal, other recording a conviction, it would not interfere merely
B because it.feels that sitting a Trial Court its view would have been.for recording
conviction.

Eight accused persons/appellants were tried by Trial Court on charges
u/s. 148, 302, 302 read with Sections 149, 324 read with Section 149 Indian
C Penal Code and Sections 25 and 27 of the Arms Act, 1959, allegedly for
assaulting and killing three persons and injuring others.. According to the
prosecution the incident took place when accused started unloading mus-
tard straw and allegedly spreading the same on common pathway of
village. When complainant protested, the accused came out armed with
weapons and assaulted complainants resulting in the death of 3. persons
D including one stranger and injuring others. Injured includes one of the
accused.

The Trial Court observed that injuries of all the three persons, who
died in the incident were caused when they were in front of· the house of
E one of the accused 'R' and held that there was an unsuccessful attempt on
the part of prosecution witnesses to shift the place of incident from near
the house of the accused to a distant place near the house of prosecution
witnesses. The Trial Court analysed the prominent features of the case i.e.
non-examination of any independent witness, the testimony of the prosecu-
tion witnesses having been found to be unreliable as to genesis of the
F
incident, complete non-explanation by the prosecution witnesses of the
injuries sustained by one of the accused and other accused 'R' firing in
exercise of right of private defence and concluded that none of the accused
persons could be said to have committed any offence and directed their
acquittal. On appeal, by the complainant, High Court set aside the acquit-
G tal of accused persons and convicted them. Hence this appeal.

On behalf of the appellants-accused, it was contended that factum of
accused having sustained serious injuries on the vital parts of the body was
well established and that the injuries had been received in the same inci-
H dent in which complainants suffered injuries and such injuries were not
KASH! RAM v. STATE 265
explained by the prosecution witnesses. Therefore, the prosecution story A
should have been discarded and accused should have been acquitted.

Partly allowing the appeal filed by one of the accused and allowing
the appeals filed by other accused, the Court

HELD : 1. High Court while hearing an appeal against an acquittal B
has powers as wide and comprehensive as against a conviction, yet the statu-
tory principle which would guide the High Court is if two views are reason-
ably possible, one supporting the acquittal and the other recording a convic-
tion, it would not interfere merely because it feels that sitting as Trial Court
its view would have been one of recording a conviction.[276-G-H; 277-A] c
Chandu v. State of Maharashtra, (2001) 4 Scale 590, relied on.

2. The High Court overlooked some of the factual and legal aspects of
the case viz that the investigation suffered from serious infirmities, which to
D
some extent prejudiced the accused in their defence; and that the investigat-
ing officer did not make an effort to investigate the cause of and circum-
stances resulting in injuries on the person of accused and he.did not even
make an attempt at recording the statement of injured accused. If this would
have been done the investigation would not have been one sided. [277-C-D]
E
3. As per Section 105 of Evidence Act, the burden of proving the
existence of circumstances which would bring the act/alleged offence within
the exercise of right of private defence is on the accused but it is not so
heavy as it is on the prosecution. If on the available record a preponder-
ance of probabilities is raised which renders the plea taken by the accused F
plausible then the same should be accepted and in ·any case benefit of
doubt should be extended to the accused. [277-E-F-G]

Danyabhai Chhaganbhai Thakkar v. State of Gujarat, AIR (1964) SC
1563; State of Punjab v. Gurbux Singh & Ors., [1995] Suppl. 3 SCC 734;
Vijayee Singh v. State of U.P., AIR (1990) SC 1459, relied on. G

4.1. The High Court was also not right in discarding availability of
plea of self defence on the ground that the plea was not taken by accused in
statements u/s. 313 Cr.P.C. and as the accused did not enter into the
witness box. Though Section 105 of the Evidence Act enacts a rule regard- H
266 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A ing burden of proof, it does not follow that the plea of private defence
should be specifically taken. A plea of self defence can be taken while
cross-examining the prosecution witness or in the statements of accused
persons or by adducing defence evidence or it can be raised with submis-
sions by relying on probabilities and circumstances~ [278-B-C-D]
B
Vijayee Singh v. State of U.P., AIR (1990) SC 1459, relied on.

4.2. In the instant case, injuries caused to the accused are not ex-
plained by prosecution witnesses and one of the injuries could have been
the result of gunsho~ whereas other injuries could not have been self
C inflicted. A grievous hurt was caused. Therefore, an apprehension that the
prosecution party would persist in assault and could have resulted in
grievous hurt or death was reasonably in the mind of injured accused and
the others present there and they were justified in exer~ising right of
private defence and causing reasonable harm to the complainants/mem-
D hers of prosecution party. The circumstances in which the accused were
plated; their right of-private defence extended to the extent of causing
death so long as the apprehension continued. [279-B-C-D-E.-FJ

Dev Raj and Anr. v. State of Himachal Pradesh, AIR (1994) SC 523,
relied on.
E
5.1. An assembly though lawful to begin with may in the course of
events become unlawful. So long as accused persons were acting in exercise
of right of private defence, their object was not unlawful and so there was no
unlawful assembly but once they exceeded the right, the assembly ceased to
be lawful and become an unlawful assembly. There too only such of the -
F
members, who shared the doing of anything in exercise of right of private
defence, alone would be liable to be punished for the acts committed in
prosecution of the common object or for their individual acto;. [281-B-C]

5.2. In the instant case, if the accused had caused any injury before
G the members of the prosecution party had turned their back and started
running away from the scene of occurrence, there was no unlawful assem-
bly and no one could have been_ convicted either u/s.148 or with the aid of
SectiC'n 149 IPC. There is no finding arrived at by the High Court and
there is no positive evidence available on record to hold that any accused
H except 'R' caused any injury to anyone after the-right of private defence
KASHI RAM v. STATE [LAHOTI, J.] 267
had ceased to be available. One of the deceased sustained injury by gun A
shot fired by accused 'R' when the members of prosecution party were
fleeing away. Though to begin with right of private defence was available
to the accused 'R' yet the right was exceeded. Therefore, his act would be
covered by Exception II to Section 300 IPC. All the conviction recorded .
and sentences passed by High Court are set aside. Instead accused 'R' is B
held liable to conviction under Section 304 Part II IPC. All the other
accused-appellants are acquitted. [281-E-F; H; 282-A; 283-B; 283-C]

Yogendra Morw:ji v. State of G1~jarat, AIR (1980) SC 660 and Dev Rl1j
v. State of Himachal Pradesh, AIR (1994) SC 523, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeai No. 320
c
of 2000.

From the Judgment and Order dated 26.10.99 of the Madhya Pradesh
High Court in Cr!. A. No. 244 of 1988.

WITH D

Cr!. A. No. 63 of 2000.

J.C. Batra, G.C. Tyagi, Bhanu Pratap Tyagi and L.N. Gupta for the
Appellants.
E
Ms. Vibha Dutta Makhija, Uma Nath Singh and Ms. Bharati for the
Respondent.

The Judgment of the Court was delivered by

R.C. LAHOTI, J. Eight accused persons were .tried by First Additional F
Sessions Judge, Morena, Madhya Pradesh on charges under Sections 148, 302,
302 read with 149, 324 read with 149, IPC and Sections 25 and 27 of Arms
Act, 1959. On trial, the Sessions Court acquitted all the accused of the offences
charged against them. The State of Madhya Pradesh, feeling aggrieved by the
judgment of acquittal, preferred an appeal before the High Court. It appears
that Inderlal alias Indera son of Kashiram (accused-respondent No.2 before the
G
High Court) expired during the pendency of appeal. A Division Bench of the
High Court has allowed the appeal and set aside the acquittal of the accused
persons and instead convicted accused-respondent Ramesh under Section 302/
149 IPC, 148 IPC and Section 27 of the Arms Act; accused Nanakram under
Section 148 IPC and Section 27 of the Arms Act; accused Kashiram and H
268 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A Teekaram, each under Section 148 and Section 324/149 IPC; accused Surcsh
and Ratna, each under Section 147 and Section 3231149 IPC and sentenced
each of them to various terms of imprisonment. Accused Ramesh, of course,
has been sentenced to life imprisonment with a fine Rs. 5,000 for offence under
Section 302/149 IPC, in default of payment of fine to rigorous imprisonment
B for six months, to one year R.I. under Section 148 IPC, and to one year R~
under Section 27 of the Arms Act, all the sentences made to run concurrently.
As to accused Prabhu, the High Court has held, that he inflicted a farsa injury
on the head of Mahendra, but as the prosecution has not properly explained the
injuries of Prabhu, he can be heM to have acted in self-defence and therefore
he deserves to be acquitted. His acquittal has not been challenged by State by
c filing an ·appeal.·

The complainant and the accused persons are all residents of Village
Jaitpur, P.S. Bagchini, District Morena, Madhya .Pradesh. Sundera, PW7 and
Siya Ram, PW9 are real brothers. Lakhan and Bindawan who died in the
D incident were the sons of their another brother Jagannath. Mahendra, PW8 is
also son of late Jagannath i.e. he is real brother of the two deceased. Thus the
two person who died in the incident and all the injured on the prosecution side
and appearing as eye witnesses are related with each other.

Accused Ramesh, Tika Ram, Prabhu and Bhabhuti were real brothers
E and resided jointly. Accused Ratna is the son of Bhabhuti. Nanak Ram and
Suresh Accused are the sons of Prabhu. Kashi Ram and Inder Lal were also
related to each other though separated by a few degree of relationship. Thus
all the accused persons are related with each other.

According to the prosecution, on 2.10.1984, at about 11 a.m., accused
F Ramesh brbught in the Village a trolley, attached to a tractor, loaded with"
mustard straw. Accused, Teekaram, Nanakram, Prabhu, Suresh and Ratna
started unloading the mustard straw and spreading the same on common
pathway of the village. Sundera, PW-7 a'hd deceased Brindawan protested
against this act of the accused persons saying that filth and dirt would be caused
G in the village by the mustard straw. This enraged accused Ramesh who asked
the boys to come out with lathis, farsa and gun. Accused Ramesh himself
brought a 12 bore gun. Accused Inderlal and Nanakram brought rifles. Accused
Kashiram, Prahhu and Teekaram brought farsas. Accused SurP.sh and Ratna
came out armed with lathi. Accused Suresh and Ratna assaulted deceased
H Brinda wan with lathis. Sundera, PW-7 and Siyaram, PW-9 tried to intervene
KASH! RAM v. STATE [LAHOTI, J.] 269
and save Brindawan. At the same time Mahendra Singh, PW-8 also came at A
the scene of occurrence. Accused Kashiram dealt a farsa blow on the head of
Sundera, PW-7. Accused Suresh and Ratna also assaulted Sundera, PW-7 with
lathis. Siyaram, PW-9 was dealt a farsa blow on his head by accused Teekaram.
Prabhu inflicted a farsa injury on the head ofMahendra Singh, PW-8. Sundera,
Siyaram, Mahendra Singh, Brindawan, Lakhan - all ran towards their houses. B
At that point of time, accused Inderlal fired from his rifle which caused injuries
to Lakhan who fell down and died. Accused Ramesh fired with his gun causing
injuries to Brindawan who also fell down. A woman named Jamuni Dhoban
(washerwoman), who had nothing to do with the incident, happened to be at
the scene of occurrence. A gunshot by Ramesh, though aimed at Sundera, PW-
7, accidentally hit Jamuni Bai causing injury in her stomach. She fell down
c
and died. The village people started assembling on hearing the hue and cry
whereupon the accused persons took to their heels and escaped away.

At 3. p.m., a wireless message was received at Police Station Bagchini
according to which a clash between two rival parties, resulting in murder, had D
taken place at Village Jaitpur. The official present at the police station flashed
a message to the Station Officer, who had gone to Morena, the district head-
quarters, requiring him to reach Village Jaitpur. The police force was kept ready
to move to Jaitpur. ASI, S.M.Sharma left the police station for Village Jaitpur
at 3.30 p.m. accompanied by police force and requisite arms and ammunition. E
Parallel to these movements, Ram Gopal, the village Sarpanch, who did not
have any knowledge of the details of the incident had reached the scene of
occurrence and found accused Prabhu lying injured near his house. Prabhu was
unable to speak and to give any information about the incident. Sarpanch Ram
Gopal took injured Prabhu to the police station wherefrom Prabhu was sent to
a hospital at Bagchini so as to have him treated for the injuries as also for
F
medico-legal examination. Though, this factum was recorded in general diary
of the police station, an FIR of the incident could not be recorded as no
information as to any happening amounting to a cognizable crime could be
given either by Prabhu, who was unable to speak or by Sarpanch Ram Gopal,
who was ignorant of what had really happened. G

ASI, S.M. Sharma, reached the scene of occurrence at about 6 p.m.
There, Sundera, PW-7 narrated the incident to him which was taken down by
ASI, S.M. Sharma as first information report of the incident. The same was sent
to the police station and based thereon an offence under Sections 302, 307, 147, H
270 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A 148, 149, 452, IPC was registered ~nd investigation commenced. Postmortem
on the dead bodies of three persons, who had died in the incident, and medico-
legal examination of other injured persons were conducted by Dr. R.S. Sikarwar,
PW-1. It is necessary to notice the details of injuries as stated by Dr. R.S.
Sikarwar and his opinion as it would have a material bearing on the result of
B the case.

Postmortem on the dead body of Jamuni Bai was conducted at 8.30 a.m.
on 4.10.1984. On external examination, Jamuni Bai was found to have sus-
tained a punctured wound with inverted margins, circular in shape, size 4 x 4.5
c.m. situated on left side of abdomen, 20 c.m. below the left nipple. In the mid
c of the intestine four pellets were found embedded. On internal examination,
right and left lungs were found to have been injured and reddish blood fluid
was coming out from the cut surfaces thereof. There was fluid of reddish colour
in the abdnominal cavity. Small intestine was ruptured. Four pellets were
removed from inside the small intestine which were sealed and handed over
D to the police. The cause of death was excessive bleeding and shock due to
gunshot injury. The injury was homicidal and sufficient in the ordinary course
of nature to cause death.

On the same day, at 9.45 a.m., postmortem was conducted on the dead
E body of Lakhan. There was two external injuries: (i) a gunshot' lacerated
wound, size 1 c.m. x 1 c.m. on the posterior part of the right thigh; the margins
were rounded and inverted; this was the wound of entry of the bullet; and (ii)
a gunshot lacerated wound - the wound of exit, on inner side of right thigh,
size 20 x 10 c.m. The track of the wound, from the point of entry to the point
of exit, passed through injuring the skin, muscle, blood veins, nerves and bones
F
of thigh. The internal damage was confirmed on internal examination. The
injuries were sufficient in the ordinary course of nature to cause death. The
death was homicidal and had occurred due to excessive bleeding as a result
of gunshot.

G At 11.20 a.m. on the same day, postmortem on the dead body of Brindawan
was conducted. On external examination the following injuries were found :-

l. Wound of entry of pellets 37 in number on right thigh as a result of
gunshot. The size of the wounds varied from 5 cm. to 5 inches. The shape
H of the injuries was rounded and margins were inverted. Some of the
KASH! RAM v. STATE [LAHOTI, J.] 271
injuries superficial while some of the injuries were deep upto the mus- A
cles;

2. One lacerated wound, size 4 x 3.5 x 12.5 ems. on right thigh, margins
inverted, 28 pellets and one foreign body were found in the rear side of
the thigh, deep in the muscles;
B
3. An abrasion, 3 x 1 c.m., on ante medial aspect of right knee;

4. An abrasion, 2 x 1 c.m., on anterior aspect of patella;

5. An abrasion, 5 x 1.5 c.m., on the patella bone of the left knee.
c
The first two injuries were gunshot wounds. The track of the wounds had
· damaged the muscles, blood veins and soft tissues. The direction of the injury
was from left to right obliquely upwards. Abrasions were caused by hard and
blunt weapons. All the injuries were ante mortem. Twenty-eight pellets were
taken out from the wounds, sealed in a packet and sent to the police station. D
The cause of death was haemorrhage which had occurred due to wounds of
entry of the pellets. The injuries were ante mortem.

Sundera, PW-7 was examined on 3.10.1984 and was found to have
sustained the following injuries :-
E
(1) An incised wound size 2" x 1/2" x 112" present at lower part of the head
caused by sharp cutting object. Such injury could be caused by farsa or sword.
In case the knife is straightened, then also such injury can be caused.

(2) A contusion size 2" x 1" present on medial aspect of right arm.
F
(3) A contusion size 2" x 1" present on left arm at lateral aspect.

... (4) An abrasion 1/4" x 1/4" x 1/4" present on superior aspect of left shoulder
joint.

(5) A swelling size 1" x 1/2" present on left thumb. G
(6) A contusion size 3" x I" present on left gluteus region. Injuries no. 2 to
6 could be caused by hard on blunt object like lathi.

On 3.10.1984, Mahendra Singh, PW-8 was also examined and found to
have sustained the following injuries: H
272 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A (1) An incised wound 4" x 1/2" x 1/2" present transversally on the superior
aspect of middle of the scalp. Injury caused by sharp and cutting object.

(2) A swelling size 1/2" x 1/2" present on dorsal aspect of right thumb.

(3) A swelling size 2" x 2" present on inner side of left wrist.
B
Injuries no. 2 and 3 could have been caused by hard and blunt object
while injury no. 1 was caused by some sharp edge weapon. On x-ray being
taken, Mahendra Singh was found to have sustained fracture of lower portion
of ulna bone of left hand. The injury on the left wrist of Mahendra Singh was
found to be grievous in nature while other injuries were simple in nature.
c
On 3.10.1984, Siyaram (PW-9) was aiso examined and found to have sustained
the following injuries :-

(1) An incised wound size l" x 112" x 1/2" x 1/2" present on occipital region
D (back part) of the head.

(2) An abrasion size 1" x 1/2" x 1/4" present on ante surface of the left leg.

(3) An abrasion size 1-1/2" x 112" x 114" present on ante surface of the left leg
along with swelling.
E
Injury no. 1 was caused by sharp cutting weapon while injuries no. 2 and 3 was
caused by hard and blunt object.

In the opinion of Dr. R.S. Sikarwar, all the injuries sustained by the three
deceased and other three injured persons could have been caused at the time
F

-
of the incident.

Accused Prabhu was examined by Dr. N.K. Bhardwaj, Assistant Sur-
geon, District Hospital, Morena (DW-2), on 2.10.1984, on being referred by
P.S. Bagchini, accompanied by Constable Ram Dayal. He was found to have
G sustained the following injuries :-

( 1) Incised wound, size 3" x 1" x 1/2", on the left side of head, caused by sharp
edged weapon.

(2) Contusion on left forearm size 3" x 3-1/2", caused by hard and blunt
H weapon.
KASH! RAM v. STATE [LAHOTI, J.] 273
(3) Contusion on left chest size 2" x 1-112", caused by hard and blunt weapon. A
(4) Contusion on the right side of the chest 2" x 1",caused by hard and blunt
weapon.

(5) Injury below the chin on the right side size 1/2" x 1/4" x 4".
B
Dr. Bhardwaj opined that injuries no. 3, 4 and 5 were simple in nature while
injuries no. 1 and 2 were referred for x-ray examination. Dr. Yogendra Singh,
DW-3, did the x-ray of the head and the right forearm of Prabhu and found
that there was fracture of frontal bone. with radio opaque shadow below man-
dible area. There was also fracture of styloid process of radium in fore arm in
front side. The radio opaque shadow of rounded metallic density below man- c
dible area could be due to any pellet etc. A foreign body was found to be
present there.

According to the medical opinion, as brought on record by the prosecu-
tion and the defence witnesses, the injuries sustained by those who had died
or were injured on the side of the prosecution as also the injuries sustained by
D
the accused Prabhu could have been caused at or about the time of the incident.
In fact, during the course of hearing, it was not disputed that the injuries on
both sides were sustained during the course of the same incident. This has also
been the stand of the parties in the Trial Court as also before the High Court.
E
On behalf of the prosecution, there were 13 witnesses examined includ-
ing Sundera, PW-7, Mahendra Singh, PW-8 and Siyaram, PW-9. On the side
of the defence, the two doctors referred to hereinabove and Ram Gopal, DW-
1 who had taken Prabhu to the police station, were examined.

A perusal of the judgment of the Trial Court shows that the prosecution F
witnesses were confronted with the factum of the accused Prabhu having
sustained injuries in the same incident but none of the prosecution witnesses
offered any explanation or stated circumstances in which accused Prabhu might
have sustained injuries. D.D. Sharma, PW-12, who had investigated into the
incident admitted that during the investigation he had found that the injuries
G
sustained by accused Prabhu were so sustained in that very occurrence. How-
ever, he made no effort at contacting the accused Prabhu and recording his
statement.

The Trial Court made an effort at finding out the location of the place
of the incident by appreciating evidence in this regard. The site plan, Exbt. H
274 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A P/23 indicated the place wherefrom accused Ramesh had fired his gun as that
which was just below the neem tree, outside his house. The place at which
Jamuni Bai's blood had fallen was just in front of the house of the accused
Ramesh. The recovery memo, Exbt. P/36 showed the place wherefrom empty
cartridges of mouser and 12 bore gun were recovered was near a neem tree
standing in front of, and just outside, the house of accused Ramesh. A few
B
pellets of 12 bore were found embedded in the mud wall of Nadira adjacent
to the house of Bhagwan Lal, which is in front of the house of accused Ramesh.
Tika Ram, PW 10. who had reached the scene of occurrence soon after the
incident had found dead body of Jamuni Dhoban lying at the door of Bhagwan
Lal which is in front of the house of Ramesh and Brindawan. Injured Brindawan
c and Lakhan were also lying at a distance of 4 to 5 yards away from Jamuni
Dhoban. This indicated that injuries of all the three persons who died in the
incident were caused when they were in front of the house of the accused
Ramesh and in all probability the gun and the mouser were fired from or near
the house of accused Ramesh. The prosecution case that the place of incident
was situated near the houses of prosecution witnesses Sundera, Siyaram and
D
Mahendra Singh was thus circumstantially belied .. The triai Court held that
there was an unsuccessful attempt on the part of the prosecution witnesses to
shift the place of incident from near the house of accused Ramesh to a distant
place near the houses of the prosecution witnesses. The Trial Court minutely
examined the nature of the injuries especially their location on the parts of the
E bodies of the injured in the light of testimony of Dr. R.S. Sikarwar, PW 1 and
found that the gun shot wounds were inflicted by accused Ramesh in a sitting
posture and that is why the track of pellets in gun shot wounds was from lower
part of the body of injured to upwards. Disbelieving in part the statements of
three eye-witnesses, i.e., Sundera, Siya Ram and Mahendra Singh and on a
F cumulative effect of four prominent features of the case, i.e., non-examination
of any independent witness, the testimony of the prosecution witnesses having
been found to be unreliable as to genesis of the incident, an unsuccessful
attempt on the part of the prosecution witnesses to shift the place of the incident
and complete non-explanation by the prosecution witnesses of the injuries
sustained by accused Prabhu, the learned Trial Judge drew an inference that
G the members of the prosecution party had opened an attack on the accused
Prabhu and accused Ramesh had fired in exercise of right of private defence
of the person of accused Prabhu. Relying on a number of decisions of this Court
and Madhya Pradesh High Court, dealing with the effect of non-explanation
of injuries of accused person by prosecution witnesses, the learned Trial Judge •
H concluded that none of the accused persons could be said to have committed
K.ASHI RAM v. STATE [LAHOTI, J.] 275
any offence and whatever they did was protected by Section 95 of Indian Penal A
Code. All the accused persons were therefore directed to be acquitted of the
offences charged.

A perusal of the judgment of the High Court shows that the findings
... arrived at by the High Court are oscillating to some extent. Vide para 41, the
High Court has held that there was no evidence to suggest the attack having
B
been opened by the complainant's side and it appeared to be "natural" that the
accused persons "had arrived at the place of the incident armed with deadly
weapons and the complainant's side must have resisted the attack and while
making such resistance, the accused Prabhu had also received some injuries".
Vide para 44, the High Court has criticised the defence for the plea of self- c
defence having not been specifically taken by any of the accused persons in
their statements under Section 313 of Cr.P.C. and also accused 'Prabhu' for
having 'not dared to examirte himself as a defence witness'. Vide para 57, the
High Court has expressed an opinion that even taking the worst side of the
prosecution case and the probable defence of the accused-respondents as sug- D
gested to the prosecution witnesses, if it is presumed that any of the injured had
caused some injuries to accused Prabhu and accused Ramesh was compelled
to fire at deceased Brindawan in defence of accused Prabhu even then there
was no justification to fire another gun shot by accused Ramesh towards
complainant Sundera which accidentally hit Jamuni Bai and therefore "by no
stretch of imagination" it can be presumed that accused Ramesh had fired in E
self-defence of his brother Prabhu. The High Court has concluded by saying
"since none of the accused-respondents had taken a specific plea in their
examination under Section 313 Cr.P.C. that the injured had come to assault
them at their house and they were compelled to fire in self-defence, the theory
of self-defence all the more becomes baseless and false". Strangely enough, F
vide para 63, the High Court holds - "further in our opinion although it is
alleged against accused respondent Prabhu that he inflicted a farsa injury on
the head of Mahendra, but since injuries of Prabhu were not properly explained
by the prosecution, his act of causing injury to Mahendra may be justified in
self-defence. In these circumstances, Prabhu alone deserves benefit of doubt
from the charges levelled against him". G

At the hearing the learned counsel for the accused-appellants submitted
that the factum of accused Prabhu having sustained serious injuries including
those on vital part of the body was well established and the trial court as also
the High Court have not doubted such injuries having been received by the H
276 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A accused Prabhu in the same incident in which those on the side of the pros-
ecution suffered the injuries and such injuries of Prabhu having not been
explained by the prosecution witnesses, the prosecution story should have
been discarded and all the accused persons should have been acquitted. In our
opinion such a submission is too tall a submission and hence cannot be ac-
B cepted. In State of U.P. v. Mukunde Singh and Ors., [1994] 2 SCC 191, it has
been held that merely on the ground that the· prosecution witnesses have not
explained the injuries on the accused, the evidence of the prosecution witnesses
ought not to be rejected outrightly if the Court finds it probable that the accused
might have acted in exercise of right of self-defence, the Court ought to
proceed to consider whether they have exceeded the same. In Thakhaji Hiraji
c v. Thakore Kubersing Chamansing and Ors., [2001] 6 SCC 145, this Court has
held that Court ought to make an effort at searching out the truth on the material
available on record with a view to find out how much of the prosecution case
was proved beyond reasonable doubt and was worthy- of being accepted as
truthful and the approach of rejecting prosecution case in its entirety for non-
D explanation of the injuries sustained by the accused persons is erroneous. This
Court further held, "It cannot be held as a matter of Jaw or invariably a rule
that whenever the accused sustained an injury in the same occurrence, the
prosecution is obliged to explain the injury and on the failure of the prosecution
to do so the prosecution case should be disbelieved. Before non-explanation
E of the injuries on the persons of the accused persons by the prosecution
witnesses may affect the prosecution case, the court has to be satisfied of the
existence of two conditions: (i) that the injuries on the person of the accused
were of a serious nature; and (ii) that such injuries must have been caused at
the time of the occurrence in question. Non-explanation of injuries assumes
F greater significance when the evidence consists of interested. or partisan wit-
nesses or where the defence gives a version which competes in probability with
that of the prosecution.".

We find the judgment of the High Court suffering from several infirmi-
ties. The High Court was dealing with an appeal against acquittal. Though the
G High Court while hearing an appeal against an acquittal has powers as wide
and comprehensive as in an appeal against a conviction and while exercising
its appellate jurisdiction the High Court can re-appraise the evidence, arrive at
findiD.gs at variance with those recorded by the trial court in its order of
acquittal and arrive at its own findings, yet, the salutary principle which would
H guide the High Court is - if two views are reasonably possible, one supporting
KASH! RAM v. STATE [LAHOTI, J.] 277
the acquittal and the other recording a conviction, the High Court would not A
interfere merely because it feels that sitting as a trial court its view would have
been one of recording a conviction. It follows as a necessary corollary, as has
been held by this Court in Chandu v. State of Maharashtra (2001) 4 Scale 590,
• it is obligatory on the High Court while reversing an order of acquittal to
consider and discuss each of the reasons given by the trial court to acquit the
accused and then to dislodge those reasons. Failure to discharge this obligation
constitutes a serious infirmity in the judgment of the High Court.

A few relevant factual and legal aspects overlooked by the High Court
may not be noticed. The investigatio~ suffers from a serious infirmity which
has to some extent prejudiced the accused in their defence. The investigating c
officer having found one of the accused having sustained injuries in the course
of the same incident in which those belonging to the prosecution party sus-
tained injuries, the investigating officer should have at least made an effort at
. investigating the cause of, and the circumstances resulting in, injuries on the
person of accused Prabhu. Not only the investigating officer did not do so, he
D
did not even make an attempt at recording the statement of accused Prabhu.
If only this would have been done, the defence version of the incident would
have been before the investigating officer and the investigation would not have
been one-sided.

Section 105 of Evidence Act, 1872 provides that the burden of proving E
the existence of circumstances which would bring the act of the accused alleged
to be an offence within the exercise of right of private defence is on him and
the Court shall presume the absence of such circumstances. However, it must
be borne in mind that the burden on the accused is not so heavy as it is on the
prosecution. While the prosecution must prove the guilt of the accused to its
F
hilt, that is, beyond any reasonable doubt, the accused has to satisfy the
standard of a prudent man. If on the material available on record a preponder-
ance of probabilities is raised which renders the plea taken by the accused
plausible then the same should be accepted and in any case a benefit of doubt
should deserve to be extended to the accused (See : Dahyabhai Chhaganbhai
Thakkar v. State of Gujarat, AIR (1964) SC 1563; State of Punjab v. Gurbux G
Singh and Ors., [1995] Suppl. 3 SCC 734, Vijayee Singh v. State of UP., AIR
(1990) SC 1459). In V(jayee Singh s case this Court emphasised the difference
between a flimsy or fantastic plea taken by the defence which is to be rejeeted
altogether and a reasonable though incompletely proved plea which casts a
genuine doubt on the prosecution version and would threfore indirectly sue- H
278 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A ceed. "It is the doubt of a reasonable, astute and alert mind arrived at after due
application of mind to every relevant circumstance of the case appearing from
the evidence which is reasonable".

The High Court was also not right in criticising and discarding availabil-
...
ity of plea of self defence to the accused persons on the ground that the plea
B
was not specifically taken by the accused in their statements under Section 313
Cr.P.C. and because the accused Prabhu did not enter in the witness box.
Though Section 105 of the Evidence Act enacts a rule regarding burden of
proof but it does not follow therefrom that the plea of private defence should
be specifically taken and if not taken shall not be available to be considered
c though made out from the evidence available in the case. A plea of self defence
can be taken by introducing such plea in the cross-examination of prosecution
witnesses or in the statement of the accused persons recorded under Section
313 Cr.P.C. or by adducing de.fence evidence. And, even if the plea is not
introduced in any one of these three modes still it can be raised during the
D course of submissions by relying on the probabilities and circumstances obtain-
ing in the case as held by this Court in Vijayee Singh s case (supra). It is basic
criminal jurisprudence that an accused cannot be compelled to be examined as
a witness and no adverse inference can be drawn agsint the defence merely
because an accused person has chosen to abstain from the witness box.
E
We do not deem it necessary to state the law of private defence of person
in very many details, as for our purpose, it would suffice to notice a few
provisions of the Indian Penal Code and re-state only a few-relevant and settled
principles. Section 96 provides that nothing is an offence which is done in
exercise of the right of private defence. Under Section 97 every person has a
F right, subject to the restrictions contained in Seetion 99, to defend his own
body, and the body of another person, against any offence affecting the human
body. Under Section 99 the right of private defence in no case extends to the
inflicting of more harm than it is necessary to inflict for the purpose of defence.
Under Section 100, right of private defence of the body extends to causing
G death if the offence which occasions the exercise of such right is an assault
which reasonably causes an apprehension of death or grievous hurt, amongst
others. Under Section 101, save as provided by Section 99, the right extends
to the voluntary causing to the assailant of any harm other than death. Under
Section 102 the right once available continues as long as an apprehension of
H danger to the body continues. When the apprehension of danger has ceased
KASH! RAM v. STATE [LAHOTI, J.] 279
and yet a person continues his attack, he exceeds the right of private A
defence.

Reverting to the case at hand, we have already noted the injuries caused
to accused Prabhu. These injuries are not explained by any of the prosecution
witnesses. We have also found, and as was found by the trial Court as well,
that the scene of the incident was near the house of the accused persons and B
therefore it is highly probable that the incident which resulted in injuries to both
the sides did not take place either near the houses of anyone belonging to the
prosecution party or on village commonway where the accused Ramesh had
tried to unload from the tractor-trolley and spread the mustard straw. There was
only some verbal exchange at that place. The accused Ramesh had returned to c
his house. It is Brindawan, Lakhan, Siya Ram, Sundera and Mahendra, the
members of the prosecution party who had assembled near the house of the
accused persons and were armed with such weapons as had resulted in injuries
on the person of accused Prabhu. At least one of the persons of the prosecution
party was armed with a sharp weapon with which was caused an incised wound
D
on head, a vital part of the body, coupled with fracture of frontal bone of
accused Prabhu. One of the injuries caused to accused Prabhu could have been
the result of a gun shot leaving a pellet embedded below mandible area. Other
injuries caused to him could not have been self-inflicted. A grievous hurt was
caused and therefore an apprehension that the prosecution party would persist
in assault which could have resulted in further grievous hurt or death being E
caused was reasonably caused in the mind of accused Prabhu. Accused Ramesh,
real brother of Prabhu and other persons present there were justified in exer-
cising right of private defence and causing reasonable harm to the members of
the prosecution party who were joining in assault wherefrom a reasonable
apprehension could be anticipated. On the principles already stated hereinabove
and in the circumstances in which the accused persons were placed, their right
of private defence extended even to the extent of causing death so long as the
apprehension continued. At the trial the first six witnesses examined by the
prosecution were formal witnesses. Sundera, PW7 is the first witness examined
by the prosecution at the trial deposing to the incident. In his statement, during
cross-examination, the plea that the accused persons were acting in exercise of 0
right of private defence of person was specifically introduced by suggesting
that they were the members of the prosecution party who were the aggressors
and the accused were acting only in defence of their person. They wielded their
weapons when accused Prabhu was being assaulted and was under apprehen-
sion of being killed or suffering grievous hurt. H
280 SUPREME COURT REPORTS (2001] SUPP. 4 S.C.R.
A The injuries on the side of the prosecution party is a circumstance
revealing the real story to some extent. On the person of Siya Ram there are
two abrasions and one incised wound on occipital back part of the head, all
simple in nature. Sundera has sustained one incised wound on lower part of
head. Other injuries are contusions, abrasion and swelling on non-vital parts
of the body. Mahendra has sustained one incisedwound and two swellings. The
B
injury casused by sharp weapon was minor in nature though .he had sustained
a fracture on left wrist. Brindawan, the deceased had sustained pellet injuries
caused by a single fire which were on the thigh. So also Lakhan, the deceased
had sustained a single gun shot wound on the thigh. Neither Brindawan nor
Lakhan had sustained gun shot injury on any vital part of the body. Dr. R.S.
c Sikarwar admitted during the cross-examination that injury to Brindawan should
have been caused while he was in a standing position and the person firing the
shot was in a sitting position. Similar is the opinion, expressed by Dr. Sikarwar,
as to the injury sustained by deceased Lakhan.

In Dev Raj and Anr. v. State of Himachal Pradesh, AIR (1994) SC 523
D
this Court has held that;.where the accused received injuries during the same
occurrence in which complainants were injured and when they have taken the
plea that they acted in self-defence, that cannot be lightly 'ignored particularly
in the absence of any explanation of their injuries by the prosecution.

E The High Court has on appreciation of evidence, so far as the injuries
caused by the accused persons and the specific roles assigned to them are
concerned held that accused Ramesh and lnder Lal resorted to firing towards
the victim who were running for shelter and therefore their offences fell under
. Sections 148 and 302/149 IPC and Section 27 of the Arms Act. As to accused
Inder Lal, the High Court has refused to record any specific finding in view
F
of his having expired during the pendency of the appeal. As to accused Nanak
Ram the High Court held that although he had fired aiming at injured Mahendra
who had a narrow escape but as there was no charge under Section 307 IPC
framed against him he could not be convicted thereunder though he was liable
to be convicted under Section 148 IPC and Section 27 of the Arms Act.
G Accused Suresh and Ratna having been found to have caused some simple
injuries by lathi, have been convicted under Section 147 and 323/149 IPC.
Accused Prabhu has been fouJd to have inflicted a farsa injury on the head of
Mahendra and his act of causing such injury has been held justifiable in self·
defence and hence he has been extended 'benefit of doubt' from the charges
H levelled against him.
KASHI RAM v. STATE [LAHOTI, J.] 281
Could any of the accused persons have been held guilty of any offence A
for causing hurt with the aid of Section 149 IPC? We have already held that
the accused persons had right of private defence of person of accused Prabhu
available to them. The right of private defence need not necessarily be exer-
cised for the defence of one's own person; it can be exercised for the defence
of the person of another one. So long as an assembly of persons is acting in
B
exercise of the right of private defence it cannot be an unlawful assembly. An
assembly though lawful to begin with may in the course of events become
unlawful. So long as the accused persons were acting in exercise of right of
private defence, there object was not unlawful and so there was no unlawful
assembly but once they exceeded the right, the assembly ceased to be lawful
and became an unlawful assembly. There too only such of the members of the c
assembly who shared the object of doing anything in excess of the exercise of
right of private defence, alone would be liable to be punished for the acts
committed in prosecution of the common object or for their individual unlaw-
ful acts. The assemblage of accused persons, five or more in number, cannot
wholly be held liable to conviction with the aid of Section 149 IPC unless the D
whole assembly shared the common object of doing anything in excess of the
exercise of the right of private defence. In the case at hand, the High Court has
not arrived at a finding that any of the injuries other than the one inflicted by
Ramesh were so inflicted after the members of the complainant party had taken
to their heels and yet Ramesh fired at them. If they had caused any injury before
the members of the prosecution party had turned their back and started running E
away from the scene of occurrence, there was no unlawful assembly and Lone
could have been convicted either under Section 148 or with the aid of Section
149 IPC. There is no finding arrived at by the High Court, and there is no
positive evidence available on record to hold, that any accused (other than
Ramesh, as to whom we are dealing just hereinafter) caused any injury to p

.. anyone after the right of private defence had ceased to be available .

The only accused whose act needs to be determined for the purpose of
finding out what offence, if any, he has committed, is accused Ramesh. Ex-
ception II to Section 300 IPC provides that culpable homicide is not murder
if the offence, in the exercise in good faith of the right private defence of person G
or property, exceeds the power given to him by law a~d causes the death of
the person against whom he has exercised such right of defence without pre-
1
meditation, and without any intention of doing more harm thil!lI is necessary for
the purpose of such defence. We have found the deceased Brindawan having
sustained injury by gun shot fired by accused Ramesh. Such injury was caused H
282 SUPREME COURT REPORTS [2001] SUPP. 4 S.C.R.
A when the members of the prosecution party were fleeing away though to begin
with the accused Ramesh had available to him the right of private defence of
person. The right was 'exceeded and therefore the act of accused Ramesh would
be covered by Exception II to Section 300 of IPC. The injuries caused to
Brindawan show the pellets having injured lower part of the body of Brindawan.
It cannot be said that accused Ramesh intended to cause death or cause such
B
bodily injury as was likely to cause death though he should be attributed with
the knowledge that the injury caused by him was likely to cause death. His
individual ac~ of causing injury to deceased Brindawan is therefore punishable
under Section 304 Part II IPC. So also his subsequent fire aimed at complainant
Sundera but which accidentally hit Jamuni Bai Dhoban would also be punish-
c able under Section 304 Part II of the IPC with the aid of Section 301 IPC. If
he had injured the complainant Sundera, he would have been liable to be
convicted under Section 302 Part II IPC. Inspite of complainant Sunder alias
Sundera having escaped unhurt and yet Jamuni Bai Dhoban having been
injured though not aimed at, on the doctrine of 'transferred malice' as con-
D tained in Section 301 IPC the liability of the accused remains the same. In the
FIR, the version of Sundera was that Jamuni Bai had intervened to rescue him
when she got injured. This story was abandoned by Sundera whilst in witness
box and he maintained that though the second shot by accused Ramesh was
aimed at him it hit Jamuni Bai instead of him. No prosecution witness states
where the gun held by accused Ramesh was ;:iimed at. Prosecution version
E coming .through the three eye witnesses that accused Ramesh was in standing
posture, facing them, when he fired the gun, is not supported by, rather belied
by; medical evidence. The fact remains that Jamuni Bai was neither aimed at
nor intended to be harmed by accused Ramesh. In case of accidental injury
attracting applicability of 'transferred malice' under Section 301 IPC and
F having held that the act of the accused was covered by Section 304 IPC, the
Court should lean in favour of convicting the accused under Part-II of Section
304 if it is in doubt as to which one of the two parts of Section 304 IPC would
..
be attracted. This would be consistent with the basic tenet of extending benefit
of doubt in criminal jurisprudence. Accordingly, we hold the accused Ramesh
guilty under Section 304 Part-:JI for causing the death of Jamuni Bai.
G
In similar circumstances this Court has held in Yogendra Morarji v. State
of Gujart, AIR (1980) SC 660, Dev Raj v. State of Himachal Pradesh (supra)
and Tara Chand and Anr. v. State of Haryana, AIR (1971) SC 1891 the act
of the accused falling under Exception II to Section 300 IPC and hence
H punishable under Section 304 IPC and not under Section 302 IPC. In Yogendra
KASH! RAM v. STATE [LAHOTI, J.] 283
Morarji's this Court has also observed that this was a circumstances which A
could be taken into account in mitigation of the sentence.

For the foregoing reasons Criminal Appeal No. 320/2000 filed by
Kashiram, Teekaram, Suresh, Ratna @ Ratanlal and Nanak.ram is allowed.
Criminal Appeal No. 63/2000 filed by accused Ramesh is partly allowed. All
the convictions recorded and sentences passed by the High Court are set aside. B
Instead accused Ramesh is held liable to conviction under Section 304 Part II
IPC on two heads. He is convicted accordingly and sentenced to 7 years'
rigorous imprisonment each on the two counts. His conviction and sentence
under Section 27 Arms Act is maintained. All the sentences are directed to run
concurrently. Accused Ramesh shall surrender to serve the sentence if not C
already served out. All the other accused-appellants, i.e. other than Ramesh, are
acquitted. Their bail bonds. are discharged.

S.K.S. Appeal partly allowed.

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