Holding

The Court held that the appellant’s claim of private defence was unsupported by evidence and the prosecution had proved the elements of murder under Section 300(3), so the conviction stands.

Summary

The appellant, Radhe, was convicted under Section 302 IPC for the murder of Gyan Singh after he allegedly chopped both of the deceased's legs and inflicted other injuries during a quarrel. He appealed, claiming the acts were in private defence, arguing that he feared for his life and property. The Supreme Court examined the scope of private defence under Sections 96‑106 IPC, emphasizing that the defence must be based on concrete, not speculative, evidence of a reasonable apprehension of death or grievous hurt. The Court held that the prosecution had satisfactorily proved the three essential ingredients of murder under Section 300(3): a bodily injury was present, the injury was intentional, and it was sufficient to cause death in the ordinary course of nature. Since no credible evidence established a genuine right of private defence, the conviction was upheld and the appeal dismissed.

Issues considered

Whether the appellant was entitled to claim the right of private defence under Sections 96‑106 IPC for the killing of the deceased.
Whether the elements of murder under Section 300(3) of the IPC were proved beyond reasonable doubt.
Who bears the burden of proof for establishing a claim of private defence.

Legislation cited

Indian Penal Code, 1860s. 100, s. 101, s. 102, s. 105, s. 106, s. 299, s. 300, s. 302, s. 96, s. 97, s. 98, s. 99

Subjects

murderprivate defenceIPC Section 300culpable homicideburden of proofcriminal law

Judgment

[2008] 10 S.C.R. 110

A RAD HE
v.
STATE OF CHHATTISGARH
(Criminal Appeal No. 999 of 2008)
JULY 7, 2008
B
[DR. ARIJIT PASAYAT AND P. SATHASIVAM,JJ.]

Penal Code, 1860:
s. 300- Murder- Prosecution - Injured eye-witnesses--
c Fatal injuries caused to the deceased - Conviction of accused
and acquittal of co-accused by courts below- On appeal, held:
In view of the brutal manner of assault and other facts of the
case, impugned order not interfered with - Plea of right to pri-
vate defence not proved. r
D
s. 300 clause (3) - Meaning and scope of - Discussed.
s. 299 and 300 - 'Culpable homicide' and 'Murder' - Dis~
tinction between - Discussed.
ss. 96, 97, 98, 99, 100 to 106- Right to private defence
E
- Scope of - Held: Plea of right io private defence cannot be
based on surmises and speculations - To claim such plea
accused must show existence of circumstances giving rise to
reasonable grounds for apprehension of either death or griev-
ous injury - The right lasts so long as the reasonable appre- ..
F hension of the danger to the body continues ~ Burden to show
right of private defence is on the accused - Evidence - Bur-
den to prove right of private defence.
Appellant-accused, alongwith two co-accused, was
G
prosec ... ted for having caused death of one person and ·
for causing injuries to others. The prosecution case was
that the appellant-accused chopped both the legs of the }

deceased. When three eye-witnesses came to his re~cue
they were assaulted by the appellant-accused and the co-
H 110
RADHE v. STATE OF CHHATTISGARH 111

"~>-- accused. Trial Court convicted the appellant-accused and A
acquitted the co-accused. High Court Upheld the order
of trial court.
""
In appeal to this court appellant contended that his
conviction was not called for as the assault done by him
was in exercise of private defence; and that the complain- B
ant party named him assuming that he might have as-
saulted, because he was present at the place of occur-
rence at the relevant time.
Dismissing the appeal, the Court c
HELD: 1.1 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 ac-
-<
cused, it is not relevant whether he may have a ·chance to
inflict severe and mortal injury on the aggressor. In order D
to find whether the right of private defence is available to
an accused, the entire incident must be examined with care
~'.
and viewed in its proper setting. [Para 6] [116-G,H ; 117-A]
1.2 To claim a right of private defence extending to
voluntary causing of death, the accused must show that E
there were circumstances giving rise to reasonable
grounds for apprehending that either death or· grievous
hurt would be caused to him. The burden is on the ac-
I, cused to show that he had a right of private defence which
extended to causing of death. [Para 6] [117-C & D] F

1.3 The right commences, as soon as a reasonable
apprehension of danger to the body arises from an at-
tempt, or threat, or commit the offence, although the of-
fence may not have been committed but not until that there
G
is that reasonable apprehension. The right lasts so long
as the reasonable apprehension of the danger to the body
" -~
... continues. [Para 7] [117-E & F]
Jai Dev v. State of Punjab AIR 1963 SC 612; Rizan and
Anr. vs. State of Chhattisgarh, through the Chief Secretary, H
112 SUPREME COURT REPORTS [2008] 10 S.C.R.

A Govt. of Chhattisgarh, Raipur, Chhatttisgarh 2003 (2) SCC
6S1; Sucha Singh and Anr. v. State of Punjab 2003 (7) SCC
643 - referred to ..
1.4 Merely because there was a quarrel and accused
persons claimed to have sustained injuries, that does not
8 confer a right of private defence extending to the extent ~f
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 apprehen-
sion about the safety of their life and property that retalia-
C tion to the extent done was absolutely necessary. No evi-
dence much less cogent and credible was adduced in this
regard. The right of private defence as claimed by the ac-
cused has been rightly discarded. [Para 9] [118-A,B & C]
2.1 The safest way of approach to the interpretation
0
and application of 'murder' and 'culpable homicide' seems
to be to keep in focus the keywords used in the various
clauses of Sections 299 and 300 IPC. [Para 10] [118-D & E]
2.2 The prosecution must prove the following facts
E before it can bring a case under Section 300 "thirdly". First,
it must establish quite objectively, that a bodily injury is
present; secondly, the nature of the injury must be proved.
These are purely objective investigations. Thirdly, it must
be proved that there was an intention to inflict that particu-
F lar injury, that is to say, that it was not accidental or unin-
tentional or that some other kind of injury was intended.
Once these three elements are proved to be present, the
_ enquiry proceeds further, and fourthly, it must be proved
that the injury of the type just described made up of the
G three elements set out above was sufficient to cause death .,
in the ordinary course of nature. This part of the enquiry is ..
·- 1
purely objective and inferential and has nothing to do with
,,.-
the intention of the offender. [Para 11] [118-F,G,H; 119-A] -~

...,...
2.3 Under clause thirdly of Section 300 IPC, culpable
H homicide is murder, if both the following conditions are )i
't
RADHE v. STATE OF CHHATTISGARH . 113

satisfied i.e. (a) that the act which causes death is done A -
with the intention of causing death or is done with the in-:
tention of causing a bodHy injury; and (b) that the injury I
intended to be inflicted -is sufficient in the ordinary course
of nature ·to cause death. It must be proved that there was
an intention to inflict that particul,ar bodily injury which, in _ s
~-
the ordinary course of nature, was suffident to cause death
viz. that the injury found- to be present was the injury that
was intended to be inflicted. [Para 14] [120-C,D & E]
2~4 Even if the intention of the accused was limited
to the infliction of a bodily injury sufficient to cause death C
in the ordinary course of nature, and did not extend to
the intention of causing death, the offence would be mur-
der. Illustration (c) appended to Section 300 clearly brings
out this point. [Para 15] [120-F & G]
D
2.5 Clause (c) of Section 299 and clause (4) of Sec-.
tion 300 both require knowledge of the probability of the
a_ct causing death. Clause (4) of Section 300 would be
applicable where the knowledge of the offender as to the
~ probability of death of a person or persons in general as
distinguished from a particular person or persons - be- -E
-ing- caused ·from his imminently dangerous act, approxi-
mates to a practical certainty. Such knowledge on the part
of the offender must be <;>f the highest degree of probabi,. -
ity, the act having been committed by the offender with-
out any excuse for incurring the risk of causing death or F
such injury. [Para 16] [120-G; 121-A & B]
2.6 The above are only broad guidelines and not cast-
iron imperatives. In most cases, their observance will- ta-
cilitate the task of the court. But sometimes the facts are G
so intertwined and the second and the third stages so
telescoped into each, that it may not _be convenient to- give
a separate and clear cut treatment to the matters involved
in the second and .third stages. [Para 17] [121- a· & C]
Virsa Singh v. State of Punjab AIR 1958 SC 465; -State H
114 SUPREME COURT REPORTS [2008) 10 $.C.R.

A of A.P v Rayavarapu Punnayya 1976 (4) SCC 382; Abdul
Waheed Khan alias Waheed and Ors. vD State of A.P 2002 (7)
SCC 175; Raj Pal and Ors. v State of Haryana 2006 (8) SCC
678 - relied on. - -- -

. 3.1 Mere presence of a person at the place of quar-
B rel is not sufficient to show that he had arty intention to
cause any injury. In the instant case, even that intention
· is, not manifest and in any event, any intention to do an
act cann_ot be counteracted by actual assault. Even de-
ceased was not armed; [Para 21] [121-GH; 122~A]
c
3.2 In .the instant case, in a brutal manner the appel-
lant had 'chopped both legs of the deceased and with the
w~apon caused other injuries on the body of the de-
, , ceased; Above being the position, there is no scope for
interf~rence in this appeal. [Para 22] [122-A & B]
0
.'' CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 999 of 2008
. From the final Judgment and Order dated 27.10-.2006 of
the High Court of Chhattisgarh· at Bilaspur in Criminal-Appeal
E No. 55 of 2000 ----.
· Feroz Ahmed,
'
{AC.) for the Appellant.
. '

Dharme11dra Kumar Sinha and Anil Jha for the Respon-
dent. ·
F -
The .Judgment of the Court was delivered by
. .
Dr. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appe~I is to the.judgm~nt of a Division
G Bench of the Chhattisgarh High Court dismissing the appeal·
filed· by the.appellant (hereinafter referred to as the 'accused').
: ,_J ...

3. Challenge before the High Court was to the judgment of 1
the learned Additional Sessions Jud_ge, Manendragarh. The trial.
Court had found the appellant guilty of offence punishable un-.
H der Section 302 of the Indian Penal Code, 1860 (in short the
RADHE v. STATE OF CHHATTISGARH 115
[DR. ARIJIT PASAYAT, J.] ~

'IPC') b~t found the co-accused, namely, Kashi and Dev Kumar A.
to be not guilty. The appellant was sentencedJo undergo RI for
life and fine with default stipulation.
4. Prosecution version as unfolded during trial is as fol-
lows:
8
On 10.11.1997 Gyan Singh (hereinaJter referred to as the
'deceased') went to Ramkhilawan's house for collecting kanda"
(eatable bulb). When he did not come back till evening, his fa-
ther Heeralal went in search of the deceased to the house of
Ramkhilawan in the evenirig at around 7.00 p.m. Heeralal along c
with Ramkhilawan and his son Gyan Singh were returning to
.· his hoi.Jse. On the way, when they reached near the house of
Kashi, Kashi started scolding Ramkhilawan, who was refrained
from doing so. Therefore, a quarrel erupted. Appellant who was
carrying pharsa and Kashi a lathi started beating. Appellant gave
0
a pharsa blow on the leg of the deceased. The leg was cut and · <.

turned into two pieces. Gyan Singh fell down, thereafter Radhe
chopped his other leg and assaulted Gyan Singh with pharsa
on his thigh and other parts of the body. Heeralal came to res-
cue ~im. Dev Kumar assaulted him with a lathi ori his head and
also gave a blow on his left shoulder. Heeralal fell down. When E
Ramkhilawan intervened, he was assaulted by Dev Kumar. In
the meantime, Beerbali, who is son of Ramkhilawan came there.
He was also beaten by Radhe with pharsa. Kashi assaulted
Ramkhilawan with a club. Gyan Singh instantaneously· died at
the spot and others were injured. Accused appellant and his F
associates Kashi and Dev Kumar fled away from the place of
occurrence.
Heeralal gave intimation and lodged First Information
Report. Both the documents were recorded by Arjun Ram, As- G •.
sistant Sub Inspector, Head Constable Jagsai conducted in-
. quest, prepared report and forwarded the dead body of Gyan
Singh for autopsy to Community Health Centre, Manendragarh.
He collected blood stained and plain earth from the spot. Dr.
S.K. Chainpuria conducted autopsy. On examination, he found H
116 , SUPREME COURT REPORTS [2008] 10 S.C.R

A nine injuries on the body of deceased. and according to ~is opin-
ion, the cause of death'was syncope due to shock and external
hemorrhage caused by multiple injuries. All the injuries found · .· .......
on the body of Gyan Singh were caused by hard ane/or sharp
objects except one which was found to be-abrasion and present
. B below left knee. Death was homicidal in nature. He prepared
·1'-
autopsy report and describing all the injuries found on the body
~ of the deceased forwarded th~ report to the concerned police
\station. !njuredBeerbali, Ramkhilawan and Heeralal were also
'sent for medical examination. On medical examination, it was
c found that they have sustained various injuries. On the memo-
randun:i.statemel'lt of accused Kashi one club and one pharsa.
were recovered from the appellant and seized. From Dev kumar. · -
one.club was .seized. After post mortem examination! the cloth~s
found on the body ()f the deceased were also ·COiiected. The
D statements of witnesses were recorded; The seized pharsa,
clothes and earth were sent for chemical examination and on
examinaUon stained 'earth, pharsa and clothes of Gyan Singh
were foµnd to be stained with blood.
·.After cor:npletion of investigation, the charge sheet was
E filed in the C.gurt of Additional Chief Judicial Magistrate,
Manendragarti~ who committed the case to the Court of Ses-
sion~ for trial qiarges were framed againsfthe appellant and
cq-accused. The accused-appellant pleaded innocence a_nd
false implication. · ·
F ~.·Before the High Court the main stand was that the as-
sault, if any done by the appellant was in exercise· of right of
private _qefence ·and, therefore, conviction was not called for.
The learned counsel for the respondent on the other hand sup-
. ported tlie Judgment of the trial Court. The High Court did not
G accept appellant's plea- and dismissed the appeal. Stands
taken before the.High Court were reiterated in this appeal.
. ..
).
6. A plea of right of private defence· cannot be based on
surrn_ises and speculation. While con~idering whether the rig~t
H of prJvate defence. is available t() an_ accused, it is not relevant.
RADHE v. STATE OF CHHATTISGARH 117.
~- [DR. ARIJIT PASAYAT, J.]

. '.whether he may have a chance to inflict severe and mortal in- A
jury on the aggressor.. In order to find whether the right of private
defence is.available to an accused, the entire incident must be
examined with care and viewed in its proper setting. Section
·- 97 IPC deal.s with the subject-matter ofright of private defence.
The plea of right comprises the body or property (i) of the per- B
son exercising the right; or (ii) of any other personi and the right
may be exercised in the case of any offence againstihe body,
and in the case of offences of theft, robbery, mischief or critni-
nal-trespass, and attempts at such offences in relation to prop-
erty. Section 99 lays down the limits of the right of private de- c
fence. Sections 96 and 98 give a right of private, defence agc;1inst
certain offences and acts. The right given under Sections 96 to
98 and 100 to 106 IPC is controlled by Section 99. To claim a
_,'I right of private defence extending to voluntary causing of death,.
the accused must show that there were circumstances giving
D
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 100 and 101, IPC de.:
fine the llmit and extent of right of private defence. ·
- E
7. Sections 102 and 105, IPC deal with commencement
and continuance of the right of private defence of body and prop-
·>
erty respectively. The right commences, as soon as a reason-
able apprehension of danger to the body _arises from ·an at-
tempt, or threat, or commit the offence, although the offence F
may not have been committed but not until that there is that rea-
sonable apprehension. The right lasts so long as the reason-
able apprehension of the danger to the body continues. In Jai
Dev v. State of Punjab (AIR 1963 SC 612), it was observed
that as soon as the cause for reasonable apprehension d,isap-
G
pears and the threat has either been destroyed or has been put
to route, there can be no occasion to exercise the right of pri-
vate defence.

8. The above position was highlighted in Rizan and An-
other vs. State of Chhattisgarh, through the Chief Secretary, H
118 SUPREME COURT REPORTS [2008] 10 S.C.R.

· A _Govt. of Chhattisgarh, Raipur, Chhatttisgarh (2003 (2) SCC
661), and Sucha Singh and Anr v. State of Punjab (2003 (7)
sec 643).
9. Merely because there was a quarrel and accused per-
sons claimed to have sustained injuries, that does not confer-a
8 right of private defence extending to the extenfot causing death
- as in this case. Though such right cannot be weighed in golden
scales, it has to be established that tti-e accused persons were -
under such grave apprehension about the safety oUh~r life and
property that retaliation to(the extent done was absolutely nec-
c essary:-No evidence mucbJess cogent and credible was ad-
- duced in this regard. The right of private defeJJce-as claimed by
· the accused has been rightly discarded. -

~ - 10. The academic distinction between "murder" and "cul-
pable homicide not amounting to murder" h.as always vexed
D. the courts. The confusion is caused, if courts losing sight of the
true scope and meaning of the terms used by the legislature in
these sections,· allow themselves to be dFawn into minute ab-
. stractions. The safest w;:iy of appro~ch to ttie interpretation and
E application of these provisions seem$. to be to keep in focus
the keywords used in the various clauses of Sections 299 and
.300.
. ~ 11. In Vi[sa-Singh v. State ofPunjaiJ (AIR 195.8 SC 465}.:
Vivjan Bose, J. speaking for the Court, explained the meaning . -~- ·'
. F and scope ofclause (3)~ It was observed that the.prosecution
musfprove the following facts be!ore it ~an bring a case under
Section 300 "thirdJy". First,~ it_ must establish quite objectively,
.th_af a bodily injury is present; secondly, the nature of.i_he-injury - -- ..
must b~ prove,d_... These are purely objective investigations.
G Thirdly, ·it must be proved that there was an intention to inflict ·
that particular injury, tt1at is to say, that it was not accidehtaf,or
unintentional. or that some Gt-her kind of injury was intended. ·
Once these three elements are proved to be present, the en-
quiry proceeds further.and fourthly, it must be proved thatthe
injury of the type just described made -up of the· three· elements _·
H
RADHE v. STATE OF CHHATTISGARH 119
[DR. ARIJIT PASAYAT, J.]

set out above was sufficient to cause qeath in the ordinary course A
"" of natµre. This part of the enquiry is purely objective and infer-
ential and has nothing to do witli the intention of the offender.
. -
... · · 12;.The ingredients_of clause "thi_rdly" of Section 300 IPC
were brought out by the illustrious Judge in his terse language
as follows: · B

"12. To put it shortly, the prosecution must prove the
following facts before it can bring a case under Section
300 'thirdly';
First, it must establish, quite objectively, that a bodily injury c
is present; ·
Secondly, the nature of the injury must be proved; These
are purety objective investigations·.
Thirdly, it must be proved that there wa$ an intention to D
inflict that particular bodily injury, that is to say, that it was
not accidental or unintentional, or that some other kind of
injury was intended,
-Once these three elements are proved to be present, the E
enquiry proceeds further and,
Fourthly, it must be proved that the injury of the type just
described made up of the three elements set out above
is sufficient to cause death in the ordinary course of nature. '
This part of the enquiry is purely objective and inferential F
and has nothing to do with the intention of the offender."
13. The learned Judge explained the third ingredient in
the following words (at page 468):
"The question is not whether the prisoner intended to inflict G
a serious injury or a trivial one but whether he intended to
inflict the injury that is proved to be present. If he can show
that he did not, or if the totality of the circumstances justify
such an inference, then, of course, the intent that the section
requires is not proved. But if there is nothing beyond the H
120· SUPREME COURT REPORTS [2008] 10 S.C.R.

A injury and the fact that the appellant inflicted it, the·only
' possible. inference is that he intended to inflict it. Whether
he· knew of its seriousness, or intended serious
consequences, is neither here nor there. The question, so
far as the intention is concerned, is not whether he inten,ded
B to kill, or to inflict an injury of a particular degree of
seriousness, but whether he intended to inflict the injury in
question; and once the existence of the injury is proved
the intention ·to cause it will be presumed unless the
evidence or the circumstances warrant· an opposite
conclusion." · ·
c
. 14. These observations of Vivian Bose, J. have become
· locus classicus. The test laid down by Virsa Singh case (su-
pra) for the applicability of clause "thirdly" is now ingrained in
our legal system and has become part of the rule o(law. Under
D cta1:1se thirdly of Section 300 IPC, culpable homicide is murder,
if both the following conditions are satisfied i.e. ·(a) that the act
i'
which causes death is done with the intention of causing death
or is done with the intention of causing a bodily· injury; and (b)
that the injury intended to be inflicted is sufficient in the ordinary
E course of nature to cause death. It must'be proved that there
was an intention to inflict that particular bodily injur)t which, in
the· ordinary course of nature, was 1.sufficient to cause death viz.
that the injury found to be present was the injury that was in-
tended to be inflicted.
F 15.Thus, accor::ding to the rule laid down in Virsa Singh
case (supra) even if the intention of the accused was limited to·
the infliction of a bodily injury sufficient to cause death in the
ordinary course of nature, and did not extend to the intention of
causing death, the o'ffence would be murder. Illustration (c) ap-
G pended to Section 300 clearly brings out this poi.nt. .
16. Clause (c) ·of Section 299 and clause (4) of Section
300 both require knowledge of the probability of the act caus-
ing de~th. It is not necessary for the purpose of this case to
dilate much on the ,distinction betvveen these corresponding
H
( '
RADHE v. STATE OF CHHATTISGARH 121-
-¥
,,,:..,, _[DR. ARIJIT PASAYAT, J. ]

clauses. It will be sufficient to say that clause (4) of Section 300 A
would be applicable where the knowledge of th~ offender as to
the probability of death of a person or persons in general as
distinguished from a particular person or persons - being caused
~- from his imminently dangerous act, approximates to a practical
certainty. Such knowledge on the part of the offende·r must be B
of the highest degree of probability, the act having been com-
mitted by the offender without any excuse for incurring the risk
of causing death or such injury as aforesaid.
17. The above are only broad guidelines and not cast-iron
imperatives. In most cases, their observarn;:e will facilitate the c
task of the court. But sometimes the facts are so intertwindd
- ' "" -
and the second and the third stages so telescoped into each,
)
that it may not be convenient to give a separate and clear cut
- !" treatment to the matters involved in the second and third stages.
D
18. The position vvas illuminatingly highlighted by this Court
in State of A.P. v. Rayavarapu Punnayya (1976 (4) SCC 382),
'
--1
Abdul Waheed Khan alias Waheed and Ors. v. State of A.P.
· (2002 (7) SCG 175) and Raj Pal and Ors. v. State of Haryana
(2006 (8) sec 678).
E
19. It is to be noted that Heeralal has stated that the ap-
pellant had assaulted both legs, ttiigh and hands of the_ de-
ceasedwitD pharsa. He choppep both the legs of the deceased
' +
. who died instantaneously. Beerbali's (P.W.5) evidence was also
to similareffect. F
. 20-. It is nobody's case that the appellant had assaulted
· any·of the accused or that he had participated in the quarrel..
21. Learned counsel for the appellant submitted that since
he was present at the place of occurrence, it is but natural on
G
'( the part of the accused appellant to assume that he may have
assaulted him. Mere presence of a person at the place of quar-
rel is not sufficient to show that he had any intention to cause
any injury. In the instant case, even that intention is not manifest
and in any event, any intention to do an act cannot be counter-
H
122 SUPREME COURT REPORTS " (2008] 10 S.C.R.

.A acted by actual assault-Even deceased was not armed: .
r J. .··

22. In the instant case, in a brutal manner the appellant
- had chopped both legs t>f the deceased and wittrlhe weapon
cau,sed other injuries on the body of the deceased. Above be-
ing the position, there is no scope for interference in this ap-.
B p~al. The appeal is dismissed.
K.K.T. Appeal dismissed~

·.
.,

. ". ...,

;·-

-Y