Supreme Court of India
SALIM AND ORS.versusSTATE OF HARYANA
- Citation
- 2008 INSC 922
- Decided
- 11 August 2008
- Disposal
- Disposed off
- Bench
- ARIJIT PASAYAT
Holding
The plea of private defence was not established; the conviction was altered to Section 304 Part I read with Section 149 IPC.
Summary
The case involved a land dispute in which the accused, including Salim, armed themselves and fired upon the complainant's party, resulting in the death of Abdul Gafar. The trial court convicted Salim under sections 302, 203/149, 307/149, 323/149, 325/149 IPC and the Arms Act, while other accused were convicted under various IPC sections. On appeal, the Supreme Court examined whether the accused could rely on the right of private defence. It held that the question of private defence is a factual one, the burden of proof under Section 105 of the Evidence Act lies on the accused, and the evidence did not establish a legitimate claim of private defence. Consequently, the conviction was altered to culpable homicide not amounting to murder under Section 304 Part I read with Section 149 IPC, and the appeal was disposed with the conviction modified.
Issues considered
- The accused's claim of exercising the right of private defence
- Whether the burden of proof under Section 105 of the Evidence Act was discharged
- Whether the facts established a case of murder under Section 302 or culpable homicide under Section 304 IPC
- Appropriate conviction and sentencing in view of the evidence
Legislation cited
- Arms Act, 1959s. 27
- Indian Evidence Act, 1872s. 105
- Indian Penal Code, 1860s. 100, s. 101, s. 102, s. 103, s. 104, s. 105, s. 106, s. 148, s. 149, s. 203, s. 27, s. 302, s. 304, s. 307, s. 323, s. 325, s. 96, s. 97, s. 98, s. 99
Subjects
private defenceself-defenceburden of proofIndian Penal CodeSection 304 IPCmurderculpable homicideland disputeconviction alteration
Judgment
[2008] 11 S.C.R. 1154
A SALIM AND ORS.
v.
STATE OF HARYANA
(Criminal Appeal No. 1254 of 2008)
AUGUST 11, 2008
B .'{
I>
[DR. ARIJIT PASAYAT AND HARJIT SINGH BEDI, JJ.]
Penal Code, 1860:
ss. 96 to 106 - Right of private defence - Exercise of -
c Held: Question as to whether in a particular situation a person
acted reasonably in exercise of right of private defence is a
question of fact- Court to take surrounding circumstances for
determining such question - On facts, evidence on record
does not establish that the accused persons were exercising
D right of private defence - Appropriate conviction would be un-
der s. 304 (Part I) r. w. s. 149 and not under s. 302.
'~
Evidence Act, 1872:
s.105 - Burden to prove right of private defence - Held:
E Is on accused who sets up such plea - Burden stands dis-
charged by showing preponderance of probabilities in favour
of the plea on the basis of material on record - On facts, there
is no evidence to support the plea.
Prosecution case was that there was land dispute
F between the parties. On the fateful day, when complain-
ant and others were ploughing the land, the accused per-
sons reached the spot armed with guns, lathis and pharsa
and gave exhortation that the persons belonging to com-
plainant party be killed. Appellant 'S' fired from his double
G barrel gun which hit the forehead of deceased. Another
accused person fired which hit the right side of deceased.
When the complainant tried to intervene one of the ac- )..
cused persons gave pharsa blow on his head and an-
other inflicted lathi blow on his head. The remaining ac-
H 1154
"
SALIM & ORS. v. STATE OF HARYANA 1155
cused with their lathis caused injuries on others. The de- A
ceased died on the way to the hospital.
The Trial Court convicted appellant 'S' under ss.302, .
203/149, 307/149, 323/149, 325/149 IPC and s.27 of Arms
Act and the other accused persons under ss.148, 307/149,
323/149 and 325/149 IPC. The appeals filed by the accused 8
as also the State were dismissed by the High Court.
In the instant appeal, the issue for consideration was
the alleged exercise of right of private defence.
Disposing of the appeal, the Court c
HELD: 1.1. Whether in a particular set of circum-
stances, a person legitimately acted in the exercise of the
right of private defence is a question of fact to be deter-
mined on the facts and circumstances of each case. No 0
test in the abstract for determining such a question can
be laid down. In determining this question of fact, the
Court must consider all the surrounding circumstances.
It is not necessary for the accused to plead in so many
words that he acted in self-defence. If the circumstances
show that the right of private defence was legitimately ex- E
ercised, it is open to the Court to consider such a plea. In
a given case the Court can consider it even if the accused
has not taken it, if the same is available to be considered
from the material on record. [Para 7] [1162 F,G,H 1163-A]
F
1.2 Under Section 105 of the Evidence Act, 1872 , the
burden of proof is on the accused, who sets up the plea
of self-defence, and, in the absence of proof, it is not pos-
sible for the Court to presume the truth of the plea of self-
defence. The Court shall presume the absence of such G
circumstances. It is for the accused to place necessary
material on record either by himself adducing positive
evidence or by eliciting necessary facts from the wit-
nesses examined for the prosecution. The question in
such a case would be a question of assessing the true H
1156 SUPREME COURT REPORTS [2008] 11 S.C.R.
.I,
A effect of the prosecution evidence, and not a question of
the accused discharging any burden. [Para 7] [1162 F,G,H
1163 A,B,C,D]
1.3. Where the right of private defence is pleaded, the
defonce must be a reasonable and probable version sat-
B isfying the Court that the harm caused by the accused
was necessary for either warding off the attack or for fore-
stalling the further reasonable apprehension from the side
of the accused. The burden of establishing the plea of
self-defence is on the accused and the burden stands
c discharged by showing preponderance of probabilities
in favour of that plea on the basis of the material on
record. [Para 7] [1163 D E]
_Salim Zia v. State of U.P AIR (1979) SC 391; Munshi
Ram andOrs. v. Delhi Administration AIR (1968) SC 702; State
D
of Gujarat v. Bai Fatima AIR (1975) SC 1478; State of UP v.
Mohd. Mi.Jsheer Khan AIR (1977) SC 2226; Mohinder Pal Jolly
· v. State ·of Punjab AIR (1979) SC 577 - relied on.
1.4. To claim a right of private defence extending to
E 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 right commences, as
soon as a reasonable apprehension of danger to the body
F arises from .an attempt, or threat, to commit the offence,
although the offence may not have been committed but .,,:._
not until there is that reasonable apprehension. The right
lasts so long as the reasonable apprehension of the dan-
ger to the body continues. In adjudging the question as
to whether more force than was necessary was used in
G
the prevailing circumstances on the spot it would be in-
appropriate to adopt tests by detached objectivity which
would be so natural in a Court room, or that which would
seem absolutely necessary to a perfectly cool bystander.
The person facing a reasonable apprehension of threat
"'
H
SALIM & ORS. v. STATE OF HARYANA 1157
to himself cannot be expected to modulate his defence A
step by step with any arithmetical exactitude of only that
much which is required in the thinking of a man in ordi-
nary times or under normal circumstances. [Paras 8, 9,
12] [1164 F G] [1165 AB] [1166 D,E,F]
"" Jai Dev. v. State of Punjab AIR (1963) SC. 612; Vidhya B
Singh v. State of M.P. AIR (1971) SC 1857 - relied on.
Russel (Russel on Crime) 11th Edition Volume I - re-
ferred to.
1.5. In order to find whether right of private defence c
is available or not, the injuries received by the accused,
the imminence of threat to his safety, the injuries caused
by the accused and the circumstances whether the ac-
cused had time to have recourse to public authorities are
all relevant factors to be considered. (Para 10] [1165 D] D
..,
Biran Singh v. State of Bihar AIR (1975) SC 87; Wassan
Singh v. State of Punjab (1996) 1 SCC 458; Sekar alias Raja
Sekharan v. State represented by Inspector of Police, T.N.
(2002) 8 SCC 354; Butta Singh v. The State of Punjab AIR
(1991) SC 1316 - relied on. E
1.6. The right of private defence is essentially a de-
fensive right circumscribed by the governing statute i.e.
the IPC, available only when the circumstances clearly
justify it. It should not be allowed to be pleaded or availed F
~
as a pretext for a vindictive, aggressive or retributive pur-
pose of offence. It is a right of defence, not of retribution,
expected to repel unlawful aggression and not as retalia-
tory measure. While providing for exercise of the right,
care has been taken in IPC not to provide and has not
G
devised a mechanism whereby an attack may be a pre-
)
tence for killing. A right to defend does not include a right
to launch an offensive, particularly when the need to de-
fend no longer survived. [Para 14] [1167 B,C,D]
V Subramani and Anr. v. SffJfe of Tamil Nadu (2005) 10 H
1158 SUPREME COURT REPORTS [2008] 11 S.C.R.
It
A sec 358 - relied on.
2. In the instant case, there is no material to estab-
lish that the accused were exercising the right of private
defence. On the date of occurrence i.e. 25.11.2000 the land
in question was lying vacant and the matter regarding
B possession was pending adjudication before the revenue ....
authorities. After the order of remand passed by the Com-
missioner on 17 .2.2000, there is no materia.1 to show who
was in possession over the land in question. Therefore,
the plea that the accused persons were exercising right
c of private defence cannot be accepted. Though the mate-
rial on record shows that initially the accused were exer:-
cising right of private defence, however, same was ex-
ceeded. [Paras 16, 17] [1167-E,F,H 1168-A]
3. In the factual background appropriate conviction
D
of 'S' would be under s.304 (Part I) read with s.149 IPC
and not under s.302. The conviction is accordingly altered.
In case of other accused persons the conviction would
be under s.304 Part I read with s.149 IPC. The conviction
and sentence imposed for the other offences remain un-
E altered. It is stated that accused 'S' was in custody for
more than 8 years. In the background facts the sentence
is fixed at the period already undergone. He shall be re-
leased forthwith unless required to be in custody in any
other case. The sentence in case of others would be nine
F years. [Para 17] [1168 A,B,C]
i.
Case Law Reference
AIR (1968) SC 702 relied on Para 7
AIR (1975) SC 1478 relied on Para 7
G
AIR (1977) SC 2226 relied on Para 7 ,...
AIR (1979) SC 391 relied on Para 7
Jo.,
AIR (1979) SC 577 relied on Para 7
AIR (1963) SC 612 relied on Para 9
H
SALIM & ORS. v. STATE OF HARYANA 1159
AIR (1975) SC 87 relied on Para 10 A
(1996) 1 sec 458 relied on Para 10
(2002) 8 sec 354 relied on Para 10
AIR (1991) SC 1316 relied on Para 11
AIR (1971) SC 1857 relied on Para 12 B
(2005) 1o sec 358 relied on Para 15
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 1254 of 2008
From the final Judgment and Order dated 13.2.2007 of C
the High Court of Punjab and Haryana at Chandigarh in Crimi-
nal Appeal No. 665-DB of 2004
Anoop G. Choudhary, June Choudhary, R.D. Rathore and
Goodwill lndeevar for the Appellants. o
Manjit Singh and T.V. George for the Respondent.
The Judgment of the Court was delivered by
DR. ARIJIT PASAYAT, J. 1. Leave granted.
E
2. Challenge in this appeal is to the judgment of a Division
Bench of the Punjab and Haryana High Court, disposing of two
appeals i.e. Criminal appeals No.665-DB of 2004 and Crimi-
nal appeal No.376-DBA of 2005. The first was filed by the
present appellant while the second was filed by the State of
Haryana. Both the appeals had their factual matrix on a judg- F
ment of conviction and sentence dated 26/29.7.2004 passed
by learned Additional Sessions Judge (Fast Track Court),
Gurgaon. 14 persons faced trial for alleged commission of of-
fences punishable under Sections 148, 149, 302, 307, 325 and
323 of the Indian Penal Code, 1860 (in short 'IPC') and under G
Section 25 of Arms Act, 1959, (in short 'Arms Act'). The Trial
Court convicted appellant Salim for offences punishable under
Sections 302, 203/149, 307/149, 323/149, 325/149 IPC and
Section 27 of the Arms Act, whereas other accused persons
H
1160 SUPREME COURT REPORTS [2008) 11 S.C.R.
"'
A were held guilty of the offences punishable under Sections 148,
307/149, 323/149 and 325/149 IPC and various sentences were
imposed. As noted above, both the accused person and the
State filed the appeals.
3. Factual facts in a nutshell are as follows:
B ~
On- 25.11.2000 a medical ruqa was received from CHC
Nuh regarding death of Abdul Gafar by the police and where
upon Sl/SHO Ram Niwas along with other police officials
reached CHC Nuh and after obtaining the opinion of the doctor
c qua fitness, recorded statement of Alim Son of Yakub one of
the injured persons. The complainant stated before the police
that one killa otland in "Dehri Wali Jungle" in the name of Zakir
son of Fauj Khan was being cultivated by Rasul Khan, his cousin,
for the last 3-4 months on batai. Complainant further stated be-
fore the police that at about 9.00 a.m. Hasan Mohammad son
D
of Ibrahim and other ploughed the said field, and when they came
to knowaboutthis, at about 12.30 p.m., he himself, Kalam, lrfan,
Mursalin, Abdul Gafar, Lukman, Abdul Rashid, Salim s/o Abdul
Rasid reached. the spot in a tractor. When the complainant
alongwith said persons started ploughing the field, Issa armed
E with double barrel gun, Salim S/o Ummar Mohd. also having
double barrel gun, Aslam armed with country made pistol, Habib
armed with Pharsa, Hasan Mohd., Roshan, Liia, Iqbal, Nasim,
Din Mohd., Sohrab, Hanif and Nayyum armed with lathies came
there together in prosecution of their common object and im-
F mediately they gave lalkara that the persons belonging to com-
~
plainant party should be killed, and in the meanwhile Salim fired
from his double barrel gun which hit forehead and face of Abdul
Gafar. Issa fired from his double barrel gun and the pallets hit
Gafar on his right side, Aslam fired from the country made pis:...
G tol which hit fore-head of Kalam. The complainant further re-
ported that he alongwith Mursalin, Salim, Abdul Rashid, Lukman,
lrfan intervened and tried to save the said persons. Habib gave
a pharsa blow on his head, Lila inflicted lathi blow on his head
whereas remaining accused with their lathis caused injuries on
H lrfan, Lukman, Abdul Rashid, Mursalin. Meanwhile Abdul Latif
SALIM & ORS. v. STATE OF HARYANA 1161
[DR ARIJIT PASAYAT, J.]
and Younus came to the spot, witnessed the occurrence, inter- A
vened and saved the injured persons from the hands of accused
persons. The injured were taken in a jeep to Nuh hospital. Abdul
Gafar died on the way due to the injuries suffered by him. On
the basis of the complaint, formal Fl R was recorded by ASI Ram
Dayal. Sl/SHO Ram Niwas completed the inquest proceedings B
regarding deceased Gafar. He also prepared the rough site
plan and collected from the spot, one empty cartridge with one
plastic giddi. These were taken into possession after convert-
ing them into sealed parcel by preparing a memo. Sl/SHO Ram
Niwas also collected from the spot blood stained earth from c
two places and prepared separate memos after converting them
into separate parcels. The post mortem examination qua the
dead body of Abdul Gafar was conducted by the doctors.
Bijender Singh, ASI, after post mortem examination brought from
the doctor two parcels duly sealed which were taken into pos-
0
- session by SI Ram Niwas by preparing a memo on 25.11.2000.
On 27 .11.2000 Osab son of Issa produced one licenced gun
with licence of his father alongwith 24 live cartridges which were
;
taken into possession by Sl/SHO Ram Niwas by preparing nec-
essary memo. On 28.11.2000 Sl/SHO Ram Niwas arrested
eleven accused persons. He also took the weapon used for E
committing the murder. The gun was then recovered. Akhakha
was prepared and then the same was sealed into a separate
sealed parcel. The investigating officer also prepared the rough i.
site plan regarding the place of recovery. On 1.12.2000 Sl/SHO
Ram Niwas arrested accused Hanif who too produced one lathi F
at that time, which was taken into possession by preparing a
memo. On 29.1.2000 Sl/SHO Ram, arrested Habib-accused
who produced pharsa, which was taken into possession by pre-.
·paring memo. Scaled site plan was got prepared. Statements
of witnesses were recorded. The injured persons were exam- G
ined. The FSL report was obtained. Schrab W3S later on ar-
rested whose supplementary challan was prepared by Sl/SHO
Ram Niwas. After completion of necessary investigation, the
challan was submitted before the Court for trial of the accused.
H
1162 SUPREME COURT REPORTS [2008] 11 S.C.R.
A On the basis of police reports and other evidence 011 file,
all the accused were charge sheeted for offences punishable
under Sections 148, 302,/149, 307/149, 447/149, 323/149, 325/
149 of IPC. Salim was also charge sheeted under section 27 of
Arms Act All the accused persons pleaded not guilty to the
B charges and claimed trial of their case.
4. Prosecution to further the accusations examined 23 wit-
nesses. Four witnesses were examined by the accused per-
sons. The Trial Court found that the prosecution has established
its accusations and directed conviction and imposed sentences
C as noted above.
5. In appeal, primary stand taken was that the accused
persons were exercising right of private defence. The Trial Court
found that a case right of private defence was not made out.
Accordingly, the appeal was dismissed. The State's appeal was
0
also dismissed.
6. The stand taken before the High Court was reiterated
by learned counsel for the appellant. The learned coum~el for
the respondent-State, on the other hand, supported the judg-
E ment of the Trial Court and the High Court.
· 7. Only question which needs to be considered is the al-
leged exercise of right of private defence. Section 96, IPC pro-
vides that nothing is an offence which is done in the exercise of
the right of private defence. The Section does not define the
F expression 'right of private defence'. It merely indicates that noth-
ing is an offence which is done in the exercise of such right.
Whether in a particular set of circumstances, a person legiti-
mately acted in the exercise of the right of private defence is a
question of fact to be determined on the facts and Circumstances
G of each case. No test in the abstract for determining such a
·question can be laid down. In determining this question of fact,
the Court must consider all the surrot.md:ng circumstances. It is
nyt necessary for the accused to plead ln so many words that 1...
he acted in self-defence. If the circumstances show that the right
H of private defence was legitimately exercised, it is open to the
SALIM & ORS. v. STATE OF HARYANA 1163
+ [DR. ARIJ!T PASAYAT, J.]
Court to consider such a plea. In a given case the Court can A
consider it even if the accused has not taken it, if the same is
available to be considered from the material on record. Under
Section 105 of the Indian Evidence Act, 1872 (in short 'the Evi-
dence Act'), t_he burden of proof is on the accused, who sets up
't
the plea of self-defence, and, in the absence of proof, it is not B
possible for the Court to presume the truth of the plea of self-
defence. The Court shall presume the absence of such circum-
stances. It is for the accused to place necessary material on
record either by himself adducing positive evidence or by elic-
iting necessary facts from the witnesses examined for the pros- c
ecution. An accused taking the plea of the right of private de-
fence is not necessarily required to call evidence; he can es-
tablish his plea by reference to circumstances transpiring from
the prosecution evidence itself. The question in such a case
would be a question of assessing the true effect of the prosecu-
D
~
tion evidence, and not a question of the accused discharging
any burden. Where the right of private defence is pleaded, the
defence must be a reasonable and probable version satisfying
the Court that the harm caused by the accused was necessary
for either warding off the attack or for forestalling the further rea-
sonable apprehension from the side of the accused. The bur- E
den of establishing the plea of self-defence is on the accused
. and the burden stands discharged by showing preponderance
of probabilities in favour of that plea on the basis of the material
on record. (See Munshi Ram and Ors. v. Delhi Administration
)o (AIR 1968 SC 702), State of Gujarat v. Bai Fatima (AIR 1975 F
SC 1478), State of UP v. Mohd. Musheer Khan (AIR 1977
SC 2226), and M.ohinder Pal Jolly v. State of Punjab (AIR 1979
SC 577). Sections 100 to 101 define the extent of the right of
private defence of body. If a person has a right of private de-
fence of body under Section 97, that right extends under Sec- G
tion 100 to causing death if there is reasonable apprehension
that death or grievous hurt would be the consequence of the
"' assault. The oft quoted observation of this Court in Salim Zia v.
State of UP (AIR 1979 SC 391), runs as follows:
H
1164 SUPREME COURT REPORTS [2008) 11 S.C.R.
t
A "It is true that the burden on an accused person to establish
the plea of self-defence is not as onerous as the one
which lies on the prosecution and that, while the prosecution
t-
I'
1--
is required to prove its case beyond reasonable doubt,
~-
the accused need not establish the plea to the hilt and
B may discharge his onus by establishing a mere
preponderance of probabilities either by laying basis for "' ,)
that plea in the cross-examination of the prosecution
witnesses or by adducing defence evidence."
The accused need not prove the existence of the right of
c private defence beyond reasonable doubt. It is enough for him t----
..---
to show as in a civil case that the preponderance of probabili-
ties is in favour of his plea.
t
8. A plea of right of private defence cannot be based on
surmises and speculation. While considering whether the right
D
of private defence is available to an accused, it is not relevant I
. I
~
whether he may have a chance to inflict severe and mortal injury (
on the aggressor. In order to find whether the right of private r
defence is available to an accused, the entire incident must be r-
\
examined with care and viewed in its proper setting. Section '
E
97 deals with the subject matter of right of private defence. The
plea of right comprises the body or property (i) of the person
exercising the right; or (ii) of any other person; and the right may
be exercised in the case of any offence against the body, and in
the case of offences of theft, robbery, mischief or criminal tres- t
F pass, and attempts at such offences in relation to property. Sec- "i
~ I-
tion 99 lays down the limits of the right of private defence. Sec-
tions 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 pri-
~
G vate defence extending to voluntary causing of death, the ac-
cused must show that there were circumstances giving rise to
reasonable grounds for apprehending that either death or griev- )..
ous 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
H causing of death. Sections 100 and 101, IPC define the limit
SALIM & ORS. v. STATE OF HARYANA 1165
[DR. ARIJIT PASAYAT, J.]
+
and extent of right of private defence. A
9. 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 attempt,
or threat, to commit the offence, although the offence may not B
have been committed but not until there is that reasonable-ap-
prehension. The right lasts so long as the reasonable appre-
hension 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 disappears and the c
threat has either been destroyed or has been put to route, there
can be no occasion to exercise the right of private defence.
10. In order to find whether right of private defence is avail-
able or not, the injuries received by the accused, the imminen~e
D
of threat to his safety, the injuries caused by the accused and
the circumstances whether the accused had time to have re-
~
course to public authorities are all relevant_factors to be consid-
ered. Similar view was expressed by this Court in Biran Singh
v. State of Bihar (AIR 1975 SC 87). (See: Wassan Singh v.
State of Punjab (1996) 1 SCC 458, Sekar alias Raja Sekharan E
v. State represented by Inspector of Police, TN. (2002 (8) SCC
354).
11. As noted in Butta Singh v. The State of Punjab (AIR
1991 SC 1316), a person who is apprehending death or bodily F
injury cannot weigh in golden scales in the spur of moment and
in the heat of circumstances, the number of injuries required to
disarm the assailants who were armed with weapons. In
moments of excitement and disturbed mental equilibrium it is
often difficult to expect the parties to preserve composure and
G
use exactly only so much force in retaliation commensurate with
the danger apprehended to him where assault is imminent by
). use of force, it would be lawful to repel the force in self-defence
and the right of private-defence commences, as soon as the
threat becomes so imminent. Such situations have to be
H
1166 SUPREME COURT REPORTS [2008] 11 S.C.R.
A pragmatically viewed and not with high-powered spectacles or
microscopes to detect slight or even marginal overstepping.
Due weightage has to be given to, and hyper technical approach
has to be avoided in considering what happens on the spur of
the moment on the spot and keeping in view normal human·
B reaction and conduct, where self-preservation is the paramount
consideration. But, if the fact situation shows that in the guise of "'
self-pr~servation, what really has been done is to assault the
original aggressor, even after the cause of reasonable
apprehension has disappeared, the plea of right of private-
C defence can legitimately be negatived. The Court dealing with
the plea has to weigh the material to conclude whether the plea
is acceptable. It is essentially, as noted above, a finding of fact.
12. The right of self-defence is a very valuable right, serving
a social purpose and should not be construed narrowly. (See
D Vidhya Singh v. State of M.P (AIR 1971 SC 1857). Situations
have to be judged from the subjective point of view of the
accused concerned in the surrounding excitement and :...
confusion of the moment, confronted with a situation of peril and
not by any microscopic and pedantic scrutiny. In adjudging the
E question as to whether more force than was necessary was used
in the prevailing circumstances on the spot it would be
inappropriate, as held by this Court, to adopt tests by detached
objectivity which would be so natural in a Court room, or that
which would seem absolutely necessary to a perfectly cool
F bystander. The person facing a reasonable appq_hension of
threat to himself cannot be expected to modulate \?i3 defence
step by step with any arithmetical exactitude of only !hat much
which is required in the thinking of a man in ordinary times or
under normal circumstances.
G 13. In the illuminating words of Russel (Russel on Crime,
11 1h Edition Volume I at page 49):
".... a man is justified in resisting by force anyone who
manifestly intends and endeavours by violence or surprise
to commit a known felony against either his person,
H
..
SALIM & ORS. v. STATE OF HARYANA 1167
~· (DR ARIJIT PASAYAT, J.]
habitation or property. In these cases, he is not obliged to A
retreat, and may not merely resist the attack where he
stands but may indeed pursue his adversary until the
danger is ended and if in a conflict between them he
happens to kill his attacker, such killing is justifiable."
14. The right of private defence is essentially a defensive 8
right circumscribed by the governing statute i.e. the IPC,
available only when the circumstances clearly justify it. It should
not be allowed to be pleaded or availed as a pretext for a
vindictive, aggressive or retributive purpose of offence. It is a
right of defence, not of retribution, expected to repel unlawful C
aggression and not as retaliatory measure. While providing for
exercise of the right, care has been taken in IPC not to provide
and has not devised a mechanism whereby an attack may be a
pretence for killing. A right to defend does not include a right to
launch an offensive, particularly when the need to defend no D
longer survived.
15. The above position was highlighted in V Subramani
and Anr. vs. State of Tamil Nadu (2005 (10) SCC 358).
16. On considering the evidence it is held that existence E
of the material to show that the accused were exercising the
right of private defence, was not established. On the date of
occurrence i.e. 25.11.2000 the land in question was lying va-
cant and the matter regarding possession was pending adju-
dication before the revenue authorities. After the order of re- F
mand passed by the Commissioner on 17.2.2000, there is no
material to show who was in possession over the land in ques-
tion. Learned counsel for the appellant has brought to our no-
tice the evidence of Patwari to show about the possession about
the date of occurrence. It is true that the Patwari has taken that G
during the investigation he found that actual physical posses-
sion of the accused persons over the disputed property. It is
also similarly stated by PW 22 SHO. The Trial Court observed
that one of the parties used force to take possession of the land
in question.
H
1168 SUPREME COURT REPORTS [2008] 11 S.C.R.
A 17. Above being the position the plea that the accused
persons were exercising right of private defence cannot be ac-
cepted. Though the material on record shows that though ini-
tially the accused were ex!3rcising right of private defence, same
was exceeded. In the factual background appropriate convic-
B tion of Salim would be under Section 304 Part I read with Sec-
tion 149 IPC. The conviction is accordingly altered. In case of
other accused persons the conviction would be under Section
304 Part I read with Section 149 IPC. The conviction and sen-
tence imposed for the other offences remain unaltered. It is
c stated that accused-Salim was in custody for more than 8 years.
In the background facts the sentence is fixed at the period al-
ready undergone. He shall be released forthwith unless required
to be in custody in any other case. The conviction and sentence
in case of others are maintained.
D 18. The appeal is disposed of accordingly.
D.G. Appeal disposed of.
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