Holding

An aggressor cannot invoke the right of private defence, and the failure to hold a test identification parade does not per se vitiate the testimony of eye‑witnesses.

Summary

Pammi (Brijendra Singh) and accomplices, armed, went to the house of PW‑5 to settle a business dispute. The three deceased arrived to pacify the situation, leading to a heated altercation during which Pammi and the others opened fire, killing all three. Pammi pleaded private defence, claiming the deceased attacked with iron rods, but he had admitted to entering the house armed and initiating aggression. The Sessions Court acquitted him on the ground that the investigating officer failed to conduct a test identification parade, a decision reversed by the High Court. The Supreme Court held that an aggressor cannot invoke the right of private defence and that the absence of an identification parade does not automatically vitiate eye‑witness testimony, especially when witnesses had prior knowledge of the accused. Consequently, the appeal was dismissed and the conviction upheld.

Issues considered

The right of private defence cannot be claimed by a person who initiates aggression.
Whether the failure to conduct a test identification parade under Sec. 9 of the Evidence Act invalidates eye‑witness testimony.
Whether the non‑inclusion of certain witnesses' names in the FIR or Inquest Report affects the admissibility of their evidence.
Whether the injury to PW‑1 was self‑inflicted, impacting his credibility as a witness.

Legislation cited

Subjects

private defenceself-defenceaggressoridentification paradeeye‑witness testimonymurderIndian Penal Codeevidence law

Judgment

A PAMMI @BRIJENDRA SINGH
\~

GOVT. OF MAD HY A PRADESH

FEBRUARY 12, 1998

B [M.M. PUNCHHI, CJ!., K.T. THOMAS AND M. SRINIVASAN, JJ.)

Indian Penal Code, 1860: Sec. 97-Right ofPrivate Defence-Appellant
along with other accused went armed to settle accounts-Three deceased
C came to the place of occurrence and tried to pacify-Led to an altercation-
Appel/ant and other accused shot at the deceased persons resulting in their
death-Held-No right to private defence can be claimed against an act of
self defence.

Criminal Procedure Code, 1973: Sec. 154-First Information Report
D lodged soon after the occurrence-Names of all the eye witnesses not
mentioned in the report-The eye witnesses cross examined rigorously-
Nothing found to doubt their presence at the time of occurrence-No ground
to .frown at the evidence of such eye witnesses.

Indian Evidence Act, 1872 : Sec. 9-Test Identification Parade~
E Appellant seen by the eye witnesses at the time of occurrence-Not for the
first time-Appellant already known to them-_Names of assailants including
that of the appellant given in the first _information statement-Held-No
warrant for reasoning that failure to hold test identification parade had
vitiated the evidence of such eye witnesses.

F One SS and PW-5 who partners in a liquor business had to settle
accounts between them, which led to severe antagonism. On the night of ...
occurrence, SS and his henchmen including appellant and one TS went to
the house of PW-5 and, at pistol point, asked him to settle accounts. The
three victims also reached the place of occurrence and tried to pacify them,
G which led to a heated altercation. SS, TS and the appellant took out guns and
fired at all the deceased. Appellant brought a pistol from his car and fired
at SP, SS fired at BR while TS shot at SU. All the three victims die~. The
appellant also shot at PW-1 who reached the spot. PW-2 and 4 were also
present at the place of occurrence but did not receive any injuries.

H At the trial the appellant admitted that he along with the other accused
842
PAMMI@ BRIJENDRA SINGH v. GOVT OF M.P. 843

,__,-<.
went to the place of occurrence. The appellant stated that when the altercation A
ensued and the deceased persons took out iron rods for attacking SS, he
took out his pistol to counter threat in self-defence. He denied any action on
his pa1i but admitted that some persons who came along with them had, for
self-protection, opened fire.

The Sessions Comi, relying u1ion the fact of failure of the inve~iigating B
r agency to conduct a test identification parade, observed that such failure had
se1iously affected the veracity of the version of the eye witnesses and acquitted
the accused. On ap1Jeal the High Court reversed the acquittal.

In appeal to this Court, the appellant contended that none of the witnesses
had seen the occurrence and attacked the testimony of PWs-2 and 4 on the c
ground that their names did not find a place in the FIR or in the Inquest
Report. According to him the Jnvestigat~ng Officer came to know of them
only at a later stage of inve~tigation.

Dismissing the appeal, this Court ... D
HELD : 1.1. It is one of the canons of the Ja:w of right of private defence
that such a right would not enure to an aggressor. Any step resorted to
thwart an act of aggression is regarded as defensive act and no right of
private defence can be claimed again~i such an act of self defence. [847-B]
E
1.2. The appellant had admitted that he along with other accused went
to the house of PW-5 equipped with firearms to settle scores. Such an entry
into the house of PW-5 particularly dming night time is an act of aggression
on the part of those who went there. At any rate, such an entry was enough
to instil reasonable apprehension in the minds of the occupant of the house
... 'r that accused have committed criminal trespass and they might persist in
mounting up the aggression. (846-G-H; 847-A]
F

2. The evidence of the eye witnesses is not to be jettisoned merely due
to the failure of the Investigation Officer to conduct tei.1 identification parade.
This is not a case where the witnesses were seeing the appellant for the first
time. PW-1 had mentioned the names !Jf some of the assailants including the G
appellant even in the first information statement, which he lodged soon after
f-
*~>~
the occurrence. PW s-2 and 4 also said that they knew the appellant earlier.
J (847-C-D].
--·
3. The mere fact that PW-1, in the injured condition, did not mention
the names of all the eye-wittnesses when he gave the First Information H
844 SUPREME COURT REPORTS [1998] l S.C.R.

A Statement is no ground to frown at the evidence of PWs-2 and 4 as testimony \..-~...,
of these two witnesses was subjected to rigorous cross-examination and no
material had been elicited to doubt their presence. [848-H)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 451
of 1993.
B
From the Judgment and Order dated 2.4.93 Madhya Pradesh Court in ~
Crl. A. No. 147 of 1986.

Sushi! Kumar, Vimal Dave, Shailendra Narayan Singh for the Appellant.

c U.N. Bachawat, Ms. Kamakshi S. Mehlwal and Uma Nath Singh for the
Respondent.

The Judgment of the Court was delivered by

THOMAS, J. This appeal is filed under Section 379 of the Code of
D ,......
Criminal Procedure ("Code") and Section 2 of the Supreme Court (Enlargement
of Criminal Appellate Jurisdiction) Act, 1970. Appellant was third accused in
the trial court. He and all the other accused arrayed along with him were
acquitted by the Sessions Court. When State of Madhya Pradesh challenged
the acquittal before the High Court of Madhya Pradesh, a Division Bench of
E the High Court reversed the acquittal as against the present appellant Pammi
alias Brijendra Singh and his father Thakkar Singh (who was the first accused).
But the latter died and hence this appeal by special leave has been filed by
Panuni alias Brijendra Singh alone.

This case relates to the gum1ing down of three persons (1. Suresh Palia,
F 2. Suresh Sham1a and 3. Bajrang Rajput) at about 9 P.M. on 24.6.1983 near ~
,_
Apsara Punjab Hotel at Itwara Bazar. (Piparia in Madhya Pradesh). The story
of the prosecution is, in brief, the following:

One Santhosh Singh (who died in a subsequent encounter) and Kamal
Kumar Jaiswal (PW-5) were partners in a liquor business. They had to settle
G accounts between them and that erupted estrangement between them which
Jed to severe antagonism as against each other. On the night of occurrence,
Santhosh Singh and his he1whmen including appellant and Thakkar Singh
went to the house of Kamal Kumar Jaiswal and asked him. to settle the
.(

·- -.....

accounts by showing a pistol at him. During that time, the three deceased
H went to that house and tried to pacify them which led to an altercation and
PAMMI@ BRIJENDRA SINGH v. GOVT OF M.P. [THOMAS, J. J 845
it got heated up. Santhosh Singh and appellant and Thakkar Singh took out A
guns and fired at all the deceased. Appellant then brought a pistol from his
,.._.-(_
car (which was parked nearby) and fired at Suresh Palia; Santhosh Singh fired
at Bajrang Rajput while Thakkar Singh shot at Suresh Sharma. All the three
victims slumped down. PW-I Rajendra Prasad Palia (brother ofSuresh Palia)
who reached the spot was also shot at by the appellant. The shooting spree
did not spare some of the onlookers like PW-6 and PW-9. However, the B
assailants retreated and fled from the scene in their vehicles.
r
As information about the escape of the killers was transmitted through
wireless to the nearby police stations, the police of Tamiya Station succeeded
in blocking the fiat car in which Santhosh Singh and Pammi were travelling.
Though they resisted, the police succeeded in intercepting both, but in the
c
encounter, Santhosh Singh died while the appellant was ovel}Jowered by the
police.

There is no dispute that the three deceased died due to bullet injuries
at the time and at the place suggested by the prosecution. The appellant D
.... admitted, during examination under Section 313 of the Code, that he and
Santosh Singh went to the house of PW-5 to settle tl1e accounts and that the
three deceased reached the house soon. According to him when an altercation
-I ensued between the tlrree deceased and Santosh Singh, the deceased persons
took out irons rod for attacking Santosh Singh and then he whipped out his
pistol to counter tile threat in self-defence. Though tile appellant denied E
having used any fire arm, he admitted tliat some persons who came along witll
tl1em had for self protection, opened fire.

Tims tl1e defence strategy, adopted by the appellant, is a plea for right
of private defence for Santosh Singh and denial of any action for tile appellant
himself.
F
_,. 'r
"-1 The prosecution examined five eye witnesses (PW-I Rajendra Prasad
Palia, PW-2 Vinod Kumar, PW-4 Ashok Kumar Shanna, PW-6 Ravi Kumar
Sharma and PW-9 Roop Narayan Sahu). Among tllem PW-6 and PW-9 have
only said that when th<: firing took place tlley too sustained htjuries, but they G
could not say who fired and at whom. However, PW-I has said in evidence
in categoric terms that deceased-Suresh Palia received bullet injuries from tile
. .,,-·
~
fire arms u~ed by the appellant. PW-I himself was injured. PW-2 and PW-4
also said.ill th~ same manner though they' did .not receive any injury.

Learned Sessions Judge heavily halped on the failure of tile investigatmg H
846 SUPREME COURT REPORTS [1998] l S.C.R.
'-- '

A agency to condnct a test identificition parade and observed that such failure
had seriously affected the veracity of the version of the eye-witnesses. J.-.~
Learned Sessons Judge then considered the defence version that the entire
episode happened because of the bellicosity demonstrated by the three
deceased with iron rods and he found that the defence version is more
probable.
B
The Division Bench of the High Court made a scathing criticism on the ··~
reasoning of the Sessions Judge and held that the conclusion anived at by
the Sessions Court is so unreasonable as to warrant interference in appeal.
Some. of the remarks of castigation made by the Division Bench of the High
Court against the Sessions Judge seem to have crossed the limit of judicial
c res~nt which judges, particularly of the superior Courts, are eiqJected to
maintain. One such observation is this:

"It is believed that the learned judge has made up his mind to give
benefit of doubt to accused persons on the basis of Identification
D Parade not being held to identify the accused. Making such type of
mentality and to analyse the evidence is a judicial fault on the basis /--
of which dignity of judges is often suspected"

We are not quoting some other disparaging remarks hurled against the
trial judge except saying that they too are couched in similar tone.
E
Time and again this Court has emphasised the need to exercise judicial
restraint, particularly while dealing with judgments and orders of the lower
courts. We are in agreement with the submission of Shri Sushi! Kumar, senior
counsel that the High Court should have avoided such types of unsavoury
remarks against a judicial personage of the lower hierarchy. We do not want
F to say anything more on it now.
~ ,_
However, we are not persuaded to interfere with the finding of the High
Court that the Sessions Judge went wrong in acquitting the appellant. The
question of private defence for Santosh Singh does not arise because on the
admission of the appellant himself, Santosh Singh and his henchmen
G (including the appellant and his father) went to the house of PW-5 equipped
with fire arms to settle scores, though they say that they went there to have
the accounts settled between them. Such an entry into the house of PW-5 ~
-....·
particularly during night time is an act of aggression on the part to those who
went there. At any rate, such entry was enough to instill reasonable
H apprehension in the mind of the occupant of the house that the accused have
PAMMI@ BRJJENDRA SINGH i'. GOVT OF M.P. [THOMAS, J.] 847
committed criminal trespass and they might persist in mounting up the A
aggression .

.,.... It is one of the canons of the law of right of private defence that such
a right would not enure to an aggressor. Any step resorted to thwart an act
of aggression is regarded as defensive act and no right of private defence can
be claimed against such an act 6f self-defence. B
So, the High Court was correct in repudiating the plea of the accused
claiming right of private defence. According to us, the Division Bench of the
High Court has correctly found that evidence of the eye-witnesses in this
case is not to be jettisoned merely due to the failure of the investigating
officer to conduct test identification parade. This is not a case where the C
witnesses were seeing the appellant for the first time. Nobody has a case that
PW-1 Rajendra Prasad Palia had not seen the appellant prior to the occurrence.
In fact, he mentioned the names of some of the assailants including this
appellant even in the First Infom1ation Statement which he lodged soon after
the occurrence. PW-2 Vinod Kumar and PW-4 Ashok Kumar Sharma have also D
said that they knew the appellant earlier. If their evidence is found believable,
then there is no warrant for the reasoning that failure to hold test identification
parade had vitiated the evidence of those three eye-witnesses.

However, Shri Sushi! Kumar, learned senior counsel contended that
none of the above witnesses had seen the occurrence, not even PW-1. E
Normally, one cannot even venture to think t11at PW-I who was an injured
person would not have qeen present at the scene. But learned senior counsel
endeavoured to show that the injury found on the person of PW-I was
. subsequently created for projecting him as an eye witness .
.,
Dr. D.K. Jain (PW-22) Assistant Surgeon of Piparia Primary Healt11 F
y
.,... ' Centre has stated in his evidence that he had examined PW-1 at 11.30 P .M.
on the same day. He then noted a fire arn1 injury on the right thigh of PWI
with blackening on the corners aQd its exit wound was on the back side of
' .
the thigh. Details of the said injury \v"re entered in Exhibit B-40 r"Port. The
doctor-witness further said that the injtlred was admitted in the hospital. In G
this context, we note that even in Exhibit Pl, First Information Report, PW-
1 had stated that he was shot at by the appellant.
I-·

Yet, the trial court acc"Pted t11e contention of the defence that ilie injury
on the person of PW- I would have been self-inflicted. The first premise for
such an approach was the blackening on the entry side of t11e wound which H
848 SUPREME COURT REPORTS [1998] l S.C.R.

A could support an inference that it would have been a close range shot.
Sessions Judge highlighted an answer which PWl gave in cross-examination
that he would have been fired from a distance of 30-40 feet and on its strength
it was fotind that the story of his sustaining injury at the occurrence was
untrue. We are not impressed by the aforesaid reasoning based on that
answer in cross-examination because either tl1e distance mentioned by PW-
B l would have been a wrong estimation or what he would have meant was that
the range would be 30-40 C.M.s instead of feet. At any rate for reaching a
conclusion that injury would have been self-inflicted, the above premise is
t
too tenuous.

C The second premise is that one Purushotl1am -driver-had stated in
Exhibit D-8 tl1at after the incident in this case, he had occasion to take one
Rajendra Palia on a motor cycle from Panchsheel Store (Mangat Waria). Thus,
learned Sessions Judge used Exhibit D-8 for disbelieving PW-1 's version.
Exhibit D-8 is a copy of the deposition of a witness called Purushotham
recorded in another criminal case tried in tl1e Court of a Judicial Magistrate
D of First Class. That deponent Purushotliam was not examined as a witness
in this case. We have absolutely not doubt that the Sessions Judge had
committtid a gross error in banking on Exhibit D-8 for any pmpose whatsoever
in this case.

We are in agreement with the reasons advanced by the High Court for
E believing that PW-I was an eye-witnesses to the occurrence and he sustained
injury from the appellant during the course of the occurrence. Evidence of
PW-I that it was the appellant who fired at deceased Suresh Palia does not
suffer from any infirmity. There is no reason to r~j ect his testimony.

Learned Sessions Judge rejected the evidence of tl1e other two witnesses
F PW-2 and PW-4 also. But the Division Bench of the High Court has chosen
to take a different view of it and found the testimony believable. We make
a note of the fact that PW -1 has said in evidence about tl1e presence of the
other two witnesses. Learned senior counsel attacked their testimony mainly
on the ground that tl1eir names did not find a place in the FIR or in the Inquest
G Report, but the investigating officer came to know of them only at a later
stage of investigation. It is a matter of appreciation of evidence and the mere
fact tliat PW- I in tl1e injured condition did not mention the names of all the
eye-witnesses when he gave the first information statement is no ground to
frown at the evidence of PW-2 and PW-4. The High Court cannot be said to
have gone wrong in acting on the testimony of those two witnesses which
H was subjected to rigorous cross-examination and no material has been elicited
PAMMI@ BRIJENDRA SINGH v. GOVT OF M.P. (THOMAS, J.] 849

to doubt their presence. At any rate, as it relates to appreciation of evidence, A

.. we are not taking a different view from what the High Court has taken about
that.

We have considered the arguments addressed by the learned senior
counsel and we are not persuaded to upset the conclusion made by the
Division Bench of the High Court that the appellant Pammi had fired at Suresh B
Palia and caused his death. Vj e, therefore dismiss this appeal. The bail bond
of the appellant will stand cancelled and we direct the Sessions Judge,
Hoshanghabad to take prompt steps to put the appellant back into jail for
undergoing the sentence imposed on him.

R.C.K. Appeal dismissed. C