Supreme Court of India
SADHU SINGHversusSTATE OF PUNJAB
- Citation
- 2009 INSC 438
- Decided
- 31 March 2009
- Disposal
- Case Partly allowed
- Bench
- ARIJIT PASAYAT
Holding
The plea of private defence was not sustainable; the right was exceeded and the conviction was altered to Section 304 Part I IPC with a ten‑year sentence.
Summary
The case involved Sadhu Singh and two accomplices who were convicted for the murder of Jagdev Singh after Sadhu Singh fired a shot while confronting the deceased on a tractor. The accused claimed the shooting was in exercise of the right of private defence under Sections 96‑106 of the IPC. The Supreme Court examined the scope, commencement and limits of private defence, emphasizing that the burden lies on the accused to prove a reasonable apprehension of death or grievous hurt and that the right cannot be based on speculation. It held that even assuming the defence was momentarily applicable, it was exceeded, and therefore the plea could not be sustained. Consequently, the Court altered the conviction from murder (Section 302) to culpable homicide not amounting to murder (Section 304 Part I) and imposed a ten‑year imprisonment. The appeal was partly allowed.
Issues considered
- Whether the accused could successfully invoke the right of private defence under Sections 96‑106 of the IPC in the facts of the case.
- Whether the burden of proof on the accused to establish a reasonable apprehension of death or grievous hurt was satisfied.
- Whether the conviction should be under Section 302 IPC (murder) or reduced to Section 304 Part I IPC (culpable homicide not amounting to murder).
- Interpretation of Sections 100, 101, 102 and 105 IPC regarding the limits and commencement of private defence.
Legislation cited
- Arms Act, 1959s. 27
- Code of Criminal Procedure, 1973s. 313
- Indian Penal Code, 1860s. 100, s. 101, s. 102, s. 105, s. 106, s. 302, s. 304, s. 96, s. 97, s. 98, s. 99
Subjects
private defenceright of private defencemurderculpable homicide not amounting to murderburden of proofIPC sections 96-106Arms ActSupreme Court
Judgment
(2009] 5 S.C.R. 344
A SADHU SINGH
v.
STATE OF PUNJAB
(Criminal Appeal No. 598 of 2009)
MARCH 31, 2009 1.-
B
[DR. ARIJIT PASA VAT AND ASOK KUMAR
GANGULY, JJ.)
Penal Code, 1860 - ss. 302 and 96-106 - Right of
C private defence - Availability and extent of- Plea, when can
be raised and burden of proof - Stated - On facts, deceased
succumbed to injuries inflicted by accused persons -
Conviction and sentence uls. 302 and s. 27 of Arms Act by
courts below negating plea of exercise of private defence
D raised by accused - Justification of - Held: On facts, plea of
exercise of private defence not sustainable - However,
conviction altered to s. 304 (Part I) with custodial sentence of
10 years -Arms Act, 1959 - s. 27.
E The question which arose for consideration in the
appeal was whether the courts below were justified in
convicting and sentencing the appellants for offence
punishable uls. 302 IPC and s. 27 of the Arms Act, 1959
negating the plea of right of private defence raised by the
appellants.
F
Partly allowing the appeal, the Court
HELD:1.1. A plea of right of private defence cannot
be based on surmises and speculation. While
G considering whether the right of private defence is
available to an accused, it is not relevant whether he may
have a chance to inflict severe and mortal injury on the
aggressor. In order to find whether the right of private
defence is available to an accused, the entire incident
H 344
SADHU SINGH v. STATE OF PUNJAB 345
must be examined with care and viewed in its proper A
,., setting. To claim a right of private defence extending to
' voluntary causing of death, the accused must show that
there were circumstances giving rise to reasonable
grounds for apprehending that either death or grievous
hurt would be caused to him. The burden is on the B
accused to show that he had a right of private defence
which extended to causing of death. Sections 100 and
101, IPC define the limit and extent of right of private
defence. [Para 6] (348-G-H; 349-A-C]
1.2. Sections 102 and 105, IPC deal with C
commencement and continuance of the right of private
defence of body and property respectively. The right
commences, as soon as a reasonable apprehension of
danger to the body arises from an attempt, or threat to
commit the offence, although the offence may not have D
been committed but not until that there is reasonable
apprehension. The right lasts so long as the reasonable
apprehension of the danger to the body continues. [Para
7] (349-E]
E
1.3. When the factual scenario is examined it
becomes crystal clear that even if it is accepted for the
sake of arguments that the accused persons were at
some point of time exercising the right of private defence,
it was exceeded. That being so, the plea regarding F
- exercise of right of private defence cannot be sustained.
However, the appropriate conviction would be under
Section 304 Part I IPC. The conviction is altered
accordingly. Custodial sentence of 10 years would meet
the ends of justice. [Para 9] (350-A-B] ' G
Rizan and Another vs. State of Chhattisgarh, through the
Chief Secretary, Govt. of Chhattisgarh, Raipur, Chhatttisgarh
2003 (2) SCC 661; Sucha Singh and Anr. v. State of Punjab
2003 (7) SCC 643 and Bihari Rai v. State of Bihar SLP (Crl.)
H
""'"'
346 SUPREME COURT REPOR7~ ;~009) 5 S.C.R.
4 ,
A No.862 of 2007, relied on.
Jai Dev v. State of Punjab AIR 1963 SC 612, referred ''
'
to.
Case Law Reference:
B
AIR 1963 SC 612 Referred to. Para 7 ( '
2003 (2) sec 661 Relied on. Para 8
2003 (7) sec 643 Relied on. Para 8
c CRIMINAL APPELL.ATE JURISDICTION : Criminal Appeal
No. 598 of 2009.
From the Judgment & Order dated 26.2.2008 of the High
Court of Punjab and Haryana at Chandigarh in Criminal Appeal ,_
D No. 804-08/1997.
..
K.T.S. Tulsi, Raj Kamal, Rishi Malhotra for the Appellant.
Kuldip Singh, R.K. Pandey, T.P. Mishra and Sanjay Katya! _,
for the Respondents.
E
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division
F Bench of the Punjab and Haryana High Court upholding the
conviction of the appellant for offence punishable under Section • ..
302 of the Indian Penal Code, 1860 (in short the 'IPC') and
Section 27 of the Arms Act, 1959 (in short 'Arms Act'). Three ._
persons faced trlal for commission of murder of Jagdev Singh
G (hereinafter referred to as the 'deceased'). Sadhu Singh, Wazir
Singh and Harjinder Singh faced trial for alleged commission
of offences punishable under Sections 302, 323 read with
Section 34 IPC and Section 27 of the Arms Act. The trial Court
...
held that the appellant was guilty of offence punishable under
H
SADHU SINGH v. STATE OF PUNJAB 347
~! [DR. ARIJIT PASAYAT, J.]
Section 302 IPC while the other two were guilty of offence A
punishable under Section 323 IPC. Additionally, appellant was
found guilty of offence punishable under Section 27 of the Arms
Act.
3. Prosecution version in a nutshell is as follows:
) 8
On November 12, 1996 Bachittar Singh (PW-3) along with
his sons Sukhdev Singh (PW) and Jagdev Singh (hereinafter
referred to as 'deceased') were returning to their village at about
9.00 p.m. on a tractor which was being driven by Bachittar Singh
while his two sons were sitting on it and when they were about c
5-7 Karams short of the house of accused Sadhu Singh they
saw the three accused standing in Sadhu Singh's doorway. At
that time Sadhu Singh was armed with a 12 bore SBBL gun
while Wazir Singh and Harjinder Singh alias Pappa were empty
'\" handed. Wazir singh and Pappa walked upto the tractor and D
stopped it. Thereafter, Wazir Singh raised a lalkara that
Bachittar Singh and others should be taught a lesson for
cultivating the land coming in their father's share and thereupon
Sadhu Singh fired a shot at the deceased and Pappa Singh
I
. started throwing bricks. Bachittar Singh and others raised alarm E
and the accused retreated to their house. When Bachittar Singh
and Sukhdev Singh came down from the tractor they saw that
Jagdev Singh had died. Bachittar Singh left Sukhdev Singh
near the dead body and drove the tractor to his house from
-y where he collected Baljinder Singh (brother-in-law of the F
deceased) and met S.I. Satwant Singh S.H.O., Police Station,
Saddar (P.W.6), near the canal bridge within Bir Behman and
narrated the occurrence to S.I. Satwant Singh who recorded his
statement Ex. P. D. This statement was sent through Constable
Chhinder Pal to Police Station Saddar for registration of the
G
case after recording proceedings Ex. P D/2) by M.H. C.
~
Sikandar Singh.
The Investigator took up investigation. The doctor found
various injuries on the body of the deceased.
H
348 SUPREME COURT REPORTS [2009) 5 S.C.R.
A After completion of investigation charge sheet was filed.
As the accused persons pleaded innocence, trial was held. In
order to further its version the trial Court primarily relied on the
evidence of PWs 1, 3 and 4. It did not accept the plea of right
of private defence as set up by the accused persons. In appeal,
B the stand before the trial Court was re-iterated but the High ~
Court found that there was no question of exercise of right of
private defence.
4. Learned counsel for the appellant submitted that the trial
Court has relied primarily on the statement recorded under
c Section 313 of Code of Criminal Procedure, 1973 (in short the
'Code'). The factual scenario shows that the complainant was
returning after ploughing the land in front of the house of the
accused but correct genesis of the situation has not been
brought on record. The deceased was ~bout to hit the accused
D with a spear. The trial Court and the High Court proceeded on
the basis as if the accused had time to go into his house and
"
on that he picked up a gun. It was nobody's case that the
accused went inside and brought a gun. The trial Court makes
out a third case. It was pointed out that the claim that the
E accused persons came and attacked the deceased and PWs
is not established. In fact the trial Court and the High Court
have not recorded any positive finding regarding the deceased
and the PWs travelling in a tractor as on bullet marks were
found on the tractor.
F )'
5. Learned counsel for the respondent-State on the other
hand supported the judgment of the High Court.
6. A plea of right of private defence cannot be based on
surmises and speculation. While considering whether the right
G of private defence is available to an accused, it is not relevant
whether he may have a chance to inflict severe and mortal injury
......
on the aggressor. In order to find whether the right of private
defence is available to an accused, the entire incident must be
examined with care and viewed in its proper setting. Section
H 97 deals with the subject-matter of right of private defence. The
SADHU SINGH v. STATE OF PUNJAB 349
[DR. ARIJIT PASAYAT, J.]
plea of right comprises the body or property (i) of the person A
exercising the right; or (ii) of any other person; and the right may
be exercised in the case of any offence against the body, and
in the case of offences of theft, robbery, mischief or criminal
trespass, and attempts at such offences in relation to property.
) Section 99 lays down the limits of the right of private defence. 8
Sections 96 and 98 give a right of private defence against
certain offences and acts.. The right given under Sections 96
to 98 and 100 to 106 is controlled by Section 99. To claim a
right of private defence extending to voluntary causing of death,
the accused must show that there were circumstances giving c
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
.. ~
define the limit and extent of right of private defence . D
7. Sections 102 and 105, IPC deal with commencement
and continuance of the right of private defence of body and
property respectively. The right commences, as soon as a
reasonable apprehension of danger to the body arises from an
attempt, or threat to commit the offence, although the offence E
may not have been committed but not until that there is that
reasonable apprehension. The right lasts so long as the
reasonable apprehension of the danger to the body continues.
In Jai Dev v. State of Punjab (AIR 1963 SC 612), it was
-1 observed that as soon as the cause for reasonable F
apprehension disappears and the threat has either been
destroyed or has been put to rout, there can be no occasion to
exercise the right of private defence ..
8. The above position was highlighted in Rizan and G
Another vs. State of Chhattisgarh, through the Chief
Secretary, Govt. of Chhattisgarh, Raipur, Chhatttisgarh (2003
(2) SCC 661), Sucha Singh and Anr. v. State of Punjab (2003
(7) SCC 643), and Bihari Rai v. State of Bihar (SLP (Crl.)
No.862 of 2007 disposed of on 26th September, 2008)
H
350 SUPREME COURT REPORTS [2009] 5 S.C.R.
A 9. When the factual scenario is examined it becomes
crystal clear that even if it is accepted for the sake of arguments
that the accused persons were at some point of time exercising
the right of private defence it was exceeded. That being so, the
plea regarding exercise of right of private defence cannot be
8 sustained. However, the appropriate conviction would be under
Section 304 Part I IPC. The conviction is altered accordingly.
Custodial sentence of 10 years would meet the ends of justice.
10. The appeal is allowed to the aforesaid extent.
C N.J. Appeal partly allowed.
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