Holding

Non‑explanation of minor injuries on the accused does not automatically defeat the prosecution, and a claim of private defence must be proved on the facts; thus the conviction under Section 304 Part I IPC stands.

Summary

The appellant Shriram and seven others were convicted for rioting and the murder of Hemraj, with the trial court finding them guilty under Sections 302 and 149 IPC. They claimed to have sustained injuries and pleaded right of private defence, arguing that the prosecution had failed to explain those injuries. The Supreme Court examined whether the mere presence of injuries on the accused, or the prosecution's non‑explanation of them, creates a presumption of private defence or warrants rejection of the prosecution case. It held that the number or existence of injuries is not a safe criterion for determining aggressor status and that a plea of private defence must be proved on the facts, not on surmise. Non‑explanation of minor or superficial injuries does not automatically invalidate the prosecution's case when the evidence is clear, cogent and credible. Consequently, the conviction under Section 304 Part I IPC was upheld and the appeal dismissed.

Issues considered

The effect of the prosecution's failure to explain injuries sustained by the accused on the credibility of its case
Whether the presence of injuries on the accused permits a presumption of right of private defence
The burden and standards for establishing a claim of private defence under Sections 96‑106 IPC
The appropriateness of convicting the appellant under Section 304 Part I IPC instead of Section 302 IPC

Legislation cited

Indian Penal Code, 1860s. 100, s. 101, s. 102, s. 103, s. 104, s. 105, s. 106, s. 147, s. 149, s. 302, s. 304, s. 323, s. 96, s. 97, s. 98, s. 99

Subjects

right of private defenceinjuries on accusedburden of proofSection 97 IPCSection 304 IPCmurderculpable homicidenon‑explanation of injuriescriminal lawself‑defence

Judgment

SHRIRAM A
v.
STATE OF MADHYA PRADESH

NOVEMBER 24, 2003

[DORAISWAMY RAJU AND,ARIJIT PASAYAT, JJ.] B
Penal Code, 1860 :

Section 97-Right ofprivate defence-Existence of-Relevant factors
to be considered-Held: Mere injuries on the body of the accused did not C
lead to the presumption that the accused had caused injuries in the exercise
of his right of private defence-Right of private defence not to be based
on surmises and speculation-The injuries receivd by the accused, the
imminence of threat to his safety and the injuries caused by the accused
are all relevant factors to determine whether right ofprivate defence was D
available or not.

Criminal Trial :

Injuries on the accused-Non-explanation of-Effect of-On
prosecution case-Held : Non-explanation of injuries on the accused did E
not automatically lead to rejection ofprosecution evidence especially ifthe
injuries are simple and superficial in nature-Whether evidence is clear,
cogent and trustworthy and where truth could be distinguished from
falsehood, ngn-explanation of injuries would not affect the prosecution
case.
F
According to the prosecution, the appellant-accused assaulted
and caused injuries to the complainant party by lathi and stones
resulting in the death of one person. The appellant also claimed to have
sustained injuries. The trial court convicted the appellant under
Section 302 read with Section 149 of the Penal Code, 1860. G
The High Court held that the accused persons were the aggressors
and merely because they claimed to have sustained injuries, which
were simple in nature, that was not a case of free fight and they were
rightly held guilty by the trial court. However, the conviction was H

129
130 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A altered to one under Section 304 Part i IPC. Hence the appeal.
On behalf of the appellant, it was contended that the prosecution
had not explained the injuries on the accused persons ai:td, therefore,
the prosecution case must be rejected.
B Dismissing the appeal, the Court

HELD : 1.1. The number of injuries is n_9t always a safe criterion '
for determining who the aggressor ;as. it ·~annot be stated as a
universal rule that whenever the injuries are on.the body of the accused
C persons, a presumption must .necessarily be raised that the accused
persons had caused injuries in exercise of the right of private defence.
The defence has to further establish that the injuries found were
'suffered in the same occurrence and that such injuries on the accused
probabilise the version of the right of private defence. Non-explanation
D of the injuries sustained by the accused at about the time of occurrence
or in the course of altercation is a very important circumstance.
However, mere non-explanation of the injuries by the prosecution may
not affect the prosecution case in all cases. This principle applies to
cases where the injuries sustained by the accused are minor and
E superficial or where the evidence is so clear and cogent, so independent
and disinterested, so probable, consistent and credit-worthy, that it far
outweighs the effect of the omission on the. part of the prosecution to
explain the injuries. [135-E-H)

Lakshmi Singh v. State of Bihar, AIR (1976) ·SC 2263, relied on.
F
1.2. A plea of right of priva_te defence cannot be based on surmises
and speculation. While considering whether the right of private
defence is available to an accused, it is not relevant whether he may
have had a chance to inflict severe and mortal injury on the aggressor.
G In order to find out 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. [136-A-B]

2.1. To claim a right of private defence extending to voluntary
H causing of death, the accused must show that there were circumstances
SHRIRAM v. STATE OF M.P. 131

giving rise to reasonable grounds for apprehending that either death A ·
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. [136-D-El

2.2. The right of private defence commences, as soon a$ a
reasonable apprehension of danger to the body arises from an attenwt, B
or threat, to commit the offence, although the offence 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. [136-E-G}
c
Jai Dev v. State of Punjab, AIR (1963) SC 612, relied on.

3. In order to find out whether right of private defence 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 D
whether the accused had time to have recourse to public authorities
are all relevant factors to be considered. [136-G-H; 137-A)

Biran Singh v. State of Bihar, AIR (1975) SC 87; Wassan Singh v.'
State ofPunjab, [1996] 1SCC458 and Sekar Alias Raja Sekharan v. State
represented by Inspector of Police, T.N., [2002} 8 sec 354, relied on. E
... 4. A person who is apprehending death or bodily 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 F
mental equilibrium, it is often difficult to expect the parties to preserve
composure and use only so much force in retaliation commensurate
with the danger apprehended. 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 pragmatically viewed and not G
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
reaction and conduct, where self-preservation is tlae paramount H
132 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A consideration. However, if the fact situation shows that in the guise of
self-preservation, 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 defe~ce can legitimately be
negatived. The Court dealing with the plea has to weigh the material
B to conclude whether the plea is acceptable. It is essentially a question
of fact. (137-B-E]

Butta Singh v. State of Punjab, AIR (1991) SC 1316, relied on.

5.1. In each and every case where prosecution fails to explain the
C injuries found on some of the accused, the prosecution case should not
automatically be rejected, without any further probe. (137-F-G)

Mohar Rai and Bharath Rai v. State of Bihar, (1968) 3 SCR 525,
relied on.
D
5.2. Non-explanation of injuries on the accused person may assume
greater importance where the defence gives a version, which competes
in probability with that of the prosecution. However, where the Court
can distinguish the truth from falsehood the mere fact that the injuries
E are not explained by the prosecution cannot by itself be a sole basis to
reject such evidence, and consequently the whole case. (139-A-C]

Lakshmi Singh v. State of Bihar, AIR (1976) SC 2263 and Vijayee
Singh v. State of U.P., AIR (1990) SC 1459, relied on.

F 5.3. It is not an invariable rule that the prosecution has to explain
the injuries sustained by the accused in the same occurrence. If the
witnesses examined on behalf of the prosecution are believed by the
Court in proof of the guilt of the accused beyond a reasonable doubt,
question ofobligation of the prosecution to explain the injuries sustained
G by the accused will not arise. When the prosecution comes with a
definite case that the offence has been committed· by the accused and
proves its case beyond any reasonable doubt, it becomes hardly necessary
for the prosecution to again explain how and under what circumstances
injuries have been inflicted on the person of the accused. It is more so
H when the injuries are simple or superficial in nature. [139-F-HJ ,
SHRIRAM v. STATE OF M.P. [PASAYAT, J.] 133
Ramlagan Singh v. State of Bihar, AIR (1972) SC 2593 and Hare A
Krishna Singh v. State of Bihar, AIR (1988) SC 863, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
331 of 1997.

From the Judgment and Order dated 14. l I .96 of the Madhya Pradesh B
High Court in Crl.A. No. 70 of I 990.

S.K. Gambhir and A.K. Sanghi (AC) for the Appellant.

Siddhartha Dave for Ms. Vibha Datta Makhija for the Responden~.
c
The Judgment of the Court was delivered by

ARIJIT PASAYAT, J. The appellant along with seven others faced
trial for alleged commission of offence punishable under Sections 14 7, 302
~nd 323 of the Indian Penal Code. 1860 (for short the 'IPC'). The appellant
D
was found guilty of offence punishable under Sections 147 and 302 IPC.
Other seven persons were found guilty for offences punishable under
Sections 147, 302 read with IPC. Accused Mangilal, Durilal, Bhagatram
and Ganpat were also found guilty of offence punishable under Section
323. All were also found guilty of offence punishable under Sections 147
and 302 read with Section 149 !PC. The appellant was sentenced to E
~ undergo imprisonment for life with several other custodial sentences. In
appeal, one Ganpat whose name did not appear in the first information
report was acquitted. All other except appellant-Shriram were convicted
under Sections 304 Part II IPC and 323 read with 149 IPC and others were
convicted under Section 323 read and 149 IPC but were acquitted of th~ F
offence punishable under Section 302 read with Section 149 IPC. Custodial
sentence of five years was imposed on the appellant-Shriram with fine of
Rs. 5000 with default stipulation. Because of passage of time already spent
in custody insted of custodial sentence, fine was imposed on each one of
the other accused. During pendency of appeal before the High Court one
G
Chainram died and the appeal so far he is concerned stood abated.

In a nutshall the prosecution case as unfolded during trial is as
follows: -'

On 4.9.1987 at about 8.00 p.m. infonnant Laxmansingh, Piyarsingh, H
134 SUPREME COURT REPORTS-[2003] SUPP. 6 S.C.R.
-.
,:.. A Mansingh, Ghansi, Ratan. Machan Singh, Madan and Lalu had gone to the
house ofHemraj Mina (hereinafter referred to as 'deceased') for participation
in a Bhajan on the festival ofDol-Gyaras. After participating in the Bhajan
Programme all of them were returning to their village. While, returning as
such, they were required to go through a road which passes nearby the
house of accused-appellant Shriram Jat. The moment they reached in front
B
of his house, all the accused persons and their associates including some
women assaulted and caused injuries to complainant party by lathi and
stones. One Ratan escaped and went to Sarpanch Dulasingh and came
along with him in a jeep. Laxmansingh, Piyarsingh, Ghansi, Mansingh
Narain and Hemraj sustained injuries. Deceased Hemraj was seriously
c injured.

Information was lodge at the police station and injured witnesses were
examined. The accused persons also claimed to have sustained injuries and
were also examined. According to accused persons, the prosecution
D witnesses who claimed to have been injured were aggressor since without :;
any reason they started assaults and they pelted stones to protect themselves.
Alternatively, it was pleaded that since fight took place and specific roles
were not attributed to any particular accused, they were entitled to the
benefit of doubt. The trial Court after considering material on reco..P
convicted the accused persons as noted above. Appeal was preferred by
E the accused persons before the Madhya Pradesh High Court.

The High Court after consideration of the submissions made came to
hold that the accused persons were the aggressors and merely because they
claimed to have sustained injuries which were simple in nature, this was
F not a case of free fight and they were rightly held guilty by the trial Court.
However, considering the nature of the evidence brought on record it was
held that case under Section 302 IPC was not made out and the same was
altered to Sec;tion 304. The judgment is under challenge in the present
appeal.
G Learned counsel for the appellant submi*d that the witnesses PWs
2, 8, 9 and 11 were interested witnesses and related to the deceased and,
therefore, their evidence was partisan. Non-examination of independent
witnesses renders prosecution version unacceptable. Moreover, the injuries
on the accused persons were not explained and, therefore, adverse inference
H should have been drawn.
SHRIRAM v. STATE OF M.P. [PASAYAT, J.] 135

In response, learned counsel for the State submitted that the evidence A
of eyewitnesses have been carefully analysed by the trial Court and the
High Court. As the defence took the plea of their relationship, after
carefully analyzing the evidence it has been found cogent and credible and,
therefore, the trial Court and the High Court were justified in accepting the
prosecution version. Further, merely because the accused persons have B
sustained minor injuries as is evident froin doctor's evidence, that does not
in any manner affect the prosecution version. It was also submitted that
the High Court has considered the evidence and come to the right
conclusion that the appellant was the main architect or the crime and has
been rightly convicted and sentenced. c
So far as relationship of eyewitnesses, that they being interested and/
or the so-called familiarity with the deceased it does not render per se their
evidence suspect. All that is required to be done in such case is to carefully
analyse evidence and if after deeper scrutiny it is found acceptable to act D
on it. The trial Court and the High Court have done it. Nothing infirm
would be pointed out as to how the evidence suffers from any unreality
or infirmity in law.

We shall next deal with the aspect relating to injuries on accused arid
the question of right of private defence. The number of injuries is not E
always a safe criterion for determining who the aggressor was. It cannot
be stated as a universal rule that whenever the injuries are on the body of
the accused persons, a presumption must necessarily be raised that the
accused persons had caused injuries in exercise of the right of private
defence. The defence has to further establish that the injuries found were F
suffered in the same occurrence and that such injuries on the accused.
probabilise the version of the right of private defence. Non-explanation of
the injuries sustained by the accused at about the time of occurrence or in
the course of altercation is a very important circumstance. But mere non-
explanation of the injuries by the prosecution may not affect the prosecution G
case in all cases. This principle applies to cases where the: injuries sustained
by the accused are minor and superficial or where the evidence is so clear
and cogent, so independent and disinterested, so probable, consistent and
credit-worthy, that it far outweighs the effect of the omission on the part
of the prosecution to explain the injuries. [See Lakshmi Singh v. State of H
136 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A Bihar, AIR (1976) SC 2263]. A plea of right of private defence cannot be
based on surmises and speculation. While considering whether the right or
private defence is available to an accused, it is not relevant whether he may
have a chance to inflict se~ere and mortal injury on the aggressor. In order
to find whether the right t' i*,ivate defence is available to an accused, the
B entire incident must be ex~mined with care and viewed in its proper setting.
Section 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
C 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. Sections 96 and 98 give a right of private defence against
certain offences and acts. The right given under Sections 96 to 98 and I 00
to 106 is controlled by Section 99. To claim a right of private defence
D 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 accused to show that he had a right of private defence with extended
to causing of death. Sections 100 and l 0 l, !PC define the limit and extent
E of right of private defence.

Sections I 02 and l 05, IPC deal with commencement and continuance
of the right of private defence of body and property respectively. The right
commences, as soon as a rea.?onable apprehension of danger to the body
arises from an attempt, or threat, or commit the offence, although the
F offence may not have 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 ofPunjab, AIR ( 1963) SC
612, it was observed that as soon as the cause for reasonable apprehension
disappears and the threat has either been destroyed or has been put to route;
G there can be no occaion to exercise the right of private defence.

In order to find whether right of private defence 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
H accused had time to have recourse to public authorities are all relevant
SHRIRAM v. STATE OF M.P. [PASA YAT, J.] 137

factors to be considered. Similar view was expressed by this Cou1t in Biran A
·Singh v. State of Bihar, AIR (1975) SC 87. (See: Wassan Singh v. State
of Punjab, [l 996] I SCC 458 and Sekar alias Raja Sekharan v. State
represented by Inspector of Police, TN., [2002] 8 SCC 354.

As noted in Butta Singh v. The State of Punjab, AIR (1991) SC 1316, B
a person who is apprehending death or bodily 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 use only
so much force in retaliation commensurate with the danger apprehended C
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-defen~e commences,
as soon as the threat becomes so imminent. Such situations have to be
pragmatically viewed and not with high-powered spectacles or microscopes
to detect slight or even marginal overstepping. Due wei_ghtage has to be D
given to, and hyper technical approach has to be avoided in considering
what happens on the spur of the moment on the spot :md keeping in view
normal human reaction and conduct, where self-preservation is the
paramount consideration. But, if the fact situation shows that in the guise
of self-preservation, what really has been done is to assault the original E
aggressor, even after the cause of reasonable apprehension has disappe~red,
the plea of right of private-defence can legitima~ely be negatived. The
Court dealing with the plea has to weigh the material to conclude whether
the plea is acceptable. It is essentially a finding of fact.

One of the pleas is that the prosecution has not explained the injuries F
on the accused. Issue is if there is no such explanation what would be its
effect? We are not prepared to agree with the learned counsel for the
defence that in each every case where prosecution fails to explain the
injuries found of some of the accused, the prosecution case should
automatically be rejected, without any further probe. In Mohar Rai and G
Bharath Rai v. The State of Bihar, [1968] 3 SCR 525, it was observed :

" .. .In our judgment, the failure of the prosecution to offer any
explanation in that regard shows that evidence of the prosecution
witnesses relating to the incident is not true or at any rate not H
138 SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.

A wholly true. Further those injuries probabilise the plea taken by
the appellants."

In another important case Lakshmi Singh and Ors. v. State of Bihar, [ 1976]
4 SCC 394, after referring to the ratio laid down in Mohar Rai 's case
B (supra), this Court observed :

"Where the prosecution fails to explain the injuries on the
accused, two results follow :

( 1) that the evidence of the prosecution witnesses is
c untrue; and (2) that the injqries probabilise.the plea taken by the
appellants."

It was further observed that :

D "In a murder case, the non-explanation of the injuries
sustained by the accused at about the time of the occurrence or
in the course of altercation is a very important circumstance from
which the Court can draw the following inferences :

(l) that the prosecution has suppressed the genesis and the
E
origin of the occurrence and has thus not presented the true
version :

(2) that the witnesses who have denied the presence of the
injuries on the person of the accused are lying on the most material
F point and, therefore, their evidences unreliable :

(3) that in case there is a defence version which explains the
injuries on the person of the accused assumes much greater
importance where the evidence consists of interested or inimical
G witnesses or where the defence gives a version which competes
in probability with that of the prosecution one."

In Mohar Rai's case (supra) it is made clear that failure of the _.
prosecution to offer any explanrtion regarding the injuries found on the
H accused may show that the evidence related to the incident is not true or
SHRIRAM v. STATE OF M.P. [PASAYAT, J.] 139

at any rate not wholly true, Likewise in Lakshmi Singh 's case (supra) it A
is observed that any one-explanation of the injuries on the accused by the
prosecution by affect the prosecution case. But such a non-explanation may
assume greater importance where the defence gives a version which
competes in probability with that of the prosecution. But where the
evidence is clear, cogent and creditworthy and where the Court can B
distinguish the truth falsehood the mere fact that the injuries are not
explained by the prosecution cannot by itself be a sole basis reject such
evidence, and consequently the whole case. Much depends on the facts and
circumstance of each case. There aspects were highlighted by this Court
m Vijayee Singh and Ors. v. State of UP., AIR (1990) SC 1459. C
Non-explanation of injuries by the prosecution will not affect
prosecution case where injuries sustained by the accused are minor and
superficial or where the evidence is so clear and cogent, so independent
and disinterested, so probable, consistent and creditworthy, that it outweighs D
the effect of the omission on the part of prosecution to explain the injuries.

•
1
As observed by this Court in Ramlagan Singh v. State of Bihar, AIR ( 1972)
SC 2593 prosecution is not called upon in all cases to explain the injuries
received by the accused persons. It is for the defence to put questions to
the prosecution witnesses regarding the injuries of the accused persons.
When that is not done, there is no occasion for the prosecution witnesses E
to explain any injury on the person of an accused. In Hare Krishna Singh
and Ors. v. State of Bihar, AIR ( 1988) SC 863, it was observed that the
obligation of the prosecution to explain the injuries sustained by the
accused in the same occurrence may not arise in each and every case. In
other words, it is not an invariable rule that the prosecution has to explain F
the injuries sustained by the accused in the same occurrence. If the
witnesses examined on behalf of the prosecution are believed by the Court
in proof of guilt of the accused beyond reasonable doubt, question of
obligation of prosecution to explain injuries sustained by the accused will
not arise. When the prosecution comes with a definite case that the offence G
has been committed by the accused and proves its case beyond any
reasonable doubt, it becomes hardly necessary for the prosecution to again
explain how and under what circumstances injuries have been inflicted on
the person of the accused. It is more so when the injuries are simple or
superficial in nature. In the case at hand, trifle and superficial injuries on H
140 SUPREME COURT REPORTS (2003] SUPP. 6 S.C.R.

A accused are of little assistance to them to throw doubt on veracity of
prosecution ca5e.

In view of the legal position highlighted above, there is no substance
in the plea relating to non-explanation of injuries on the accused persons.
B The High Court has rightly convicted the appellant under Section 304 Part
II IPC and sentence of 5 years imprisonment cannot, by any stretch of
imagination, be termed to be harsh. The appeal fails and is dismissed.

v.s.s. Appeal dismissed.