Supreme Court of India
STATE OF U.PversusGAJEY SINGH & ANR.
- Citation
- 2009 INSC 251
- Decided
- 24 February 2009
- Disposal
- Dismissed
- Bench
- DALVEER BHANDARI
Holding
Non‑explanation of the serious injuries on the accused creates serious doubt about the prosecution’s version, making the defence of private defence more probable, and therefore the acquittal is upheld.
Summary
The case arose from the killing of Lakhi Ram, who was shot by Rajpal Singh after a quarrel involving the accused Gajey Singh and his father Mehar Singh. The trial court convicted Gajey Singh and Rajpal Singh for murder under Section 302 read with Section 34 IPC, but the High Court acquitted them, holding that the prosecution failed to explain the serious injuries sustained by the accused, thereby casting doubt on its version and supporting the defence of private defence. On appeal, the Supreme Court examined whether the lack of explanation of the accused's injuries could undermine the prosecution case and whether the accused’s actions fell within the scope of the right of private defence under Sections 96‑100 IPC. The Court reiterated that the accused must show a reasonable apprehension of death or grievous hurt and that non‑explanation of serious injuries creates serious doubt about the prosecution’s narrative. Consequently, the Court upheld the High Court’s acquittal, dismissing the appeal.
Issues considered
- The prosecution’s failure to explain the injuries sustained by the accused, and its impact on the credibility of the prosecution case.
- Whether the accused’s act of shooting the deceased falls within the ambit of the right of private defence under Sections 96‑100 of the IPC.
- Whether the accused exceeded the lawful limits of private defence, thereby attracting liability under Section 302 IPC read with Section 34.
- The burden of proof concerning the existence of a reasonable apprehension of death or grievous hurt.
Legislation cited
- Code of Criminal Procedure, 1973s. 313
- Indian Penal Code, 1860s. 100, s. 302, s. 34, s. 96, s. 97, s. 99
Subjects
right of private defenceIPC sections 96-100murdernon‑explanation of injuriesburden of proofacquittalcriminal appealevidence
Judgment
[2009] 2 S.C.R. 998
A STATE OF U.P.
V.
GAJEY SINGH & ANR.
Criminal Appeal No. 1074 of 2001
FEBRUN~Y 24, 2009
s. h.
'[DALVEER BHANDARI AND HARJIT SINGH BEDI, JJ.]
..
· Pen_al Code, 1860 :
ss. 96-100, s. 302 rlw s. 34 - Right of private defence - -~
c Exercise of - Relevant criteria - Non-explanation of injuries
on· accused at the time ofoccurrence by prosecution - Efff?.C!
on prosecution case - Stated - On facts, it cannot be said that
accused exceeded their right of private defence - Injuries
caused on accused were neither superficial hor of minor nature
0 - Thus, non-explanation of serious injuries on accused created
serious dqubt about the credibility of the prosecution case -
Hence, order of acquittal .by High Court not interfered with.
_. Prosecution case was that quarrel ·took place
t>etw~en
- "
LR and MS-father
., . .
of GS and
.
RS. Two hours later
E LR died due to firearm injuries caused by RS,·on order of
GS. According to the respondents, LR was killed by MS
when he saw his son RS being assaulted by_ 'lathi' and
GS with 'balkati'. Trial court convicted the respondents u/
s 302 r/w s.34 IPC and sentenced _to imprisonment for -life.
F However, High Court acquitted the respondents since the
pr.osecution failed to explain the injuries suffered by them.
The question which arose for consideration in this
appeal was whether the High Court was justified in
acquitting the accused holding that non-explanation of
G the injuries on the accused persons rendered the
prosecution version doubtful and made the defence J
version more probable that the injuries on the deceased
were inflicted in exercise of right of private defence.
H 998
STATE OF U.P. V. GAJEY SINGH & ANR. 999
Dismissing the appeal, the Court A
HELD: 1.1 Section 96 IPC declares that an act done
in the exercise of the right of private defence is not an
offence. Section 97 specified the extent of the right of
private defence whereas Section 99 prescribes the
8
limitations on the exercise of this right. Section 100
justifies the killing of an assailant when apprehension of
atrocious crime enumerated in several clauses of the
section is shown to exist. First clause of section 100
applies to cases where there is reasonable apprehension
of death while second clause is attracted where a person C
has a genuine apprehension that his adversary is going
to attack him and he reasonably believes that the attack
will result in a grievous hurt. In that event he can go to
the extent of causing the latter's death in the exercise of
the right of private defence even though the latter may D
not have inflicted any blow or injury on him. [Para 22 and
24] [1009-A-H; 1010-A-B]
. 1.2 In order to justify the a~~ of causing death of the
assailant, the accused has simply to satisfy the court that E
he was faced with an assault which caused a reasonable
apprehension of death or grievous hurt. The question
whether the apprehension was reasonable or not is a
question of fact depending upon the facts and
circumstances of each case and no strait-jacket formula
can be prescribed in this regard. The weapon used, the F
manner and nature of assault and other surrounding
circumstances should be taken into account while
evaluating whether the apprehension was justified or not.
[Para 25] (1010-C-F]
G
1.3 If injuries on the defence are not explained by the
prosecution, the same may be taken to be a ground to
discard the prosecution case, in case the truthfulness of
prosecution case is otherwise doubted. But, in cases
where there is consistent evidence of the ·injured H
STATE OF U.P. V. GAJEY SINGH & ANR. 1001
CRIMINALAPPELATE JURISDICTION : Criminal Appeal A
No.1074 of 2001
From the Judgement and Order dated 16.02.2001 of the
High Court of Allahabad Criminal Appeal No. 2786 of 1980
Pramod Swarup, Raje~v Dubey, Pareena Swarup, B
Kamlendra Mishra, for the Appellant.
Aishwarya Bhati, Gp. Capt. Karan Singh Bhati, Himanshu
Singh, Rekha Giri, Shweta Sirohi, for the Respondents.
-(
The Judgement of the Court was delivered by
c
DALVEER BHANDARI, J.
1. This appeal is directed against the judgment dated
16.02.2001 passed by the Division Bench of the High Court of
judicature at Allahabad in Criminal Appeal No.2786 of 1980.
D
2. Brief facts which are necessary to dispose of this appeal
are recapitulated as under:
3. Lakhi Ram deceased and his brother Jai Singh, PW1
were sitting at the residence of Sahid Akhtar PW3 at 8 a.m. on
27 .1.1979. Accused Gajey Singh and his father Mehar Singh E
came there at that time and immediately thereafter, some quarrel
took place between Lakhi Ram deceased and Mehar Singh,
father of the accused persons. On the intervention of Sahid
.\ Akhtar and Virendra, the matter was settled at that time and
~
thereafter all of them proceeded to their respective houses.
F
4. It is alleged that at about 9.30 a.m., on the same day,
Lakhi Ram followed by Jai Singh and his father Godha Singh,
PW2 were going towards their field for the 'chhol' (harvesting of
sugarcane crop) and when they reached in front of the house of
Mehar Singh, Gajey Singh came there and caught hold of Lakhi G
j.; Ram. Jai Singh and Godha Singh reached there and separated
...
Lakhi Ram and Gajey Singh. In the meantime, Rajpal Singh came
there with the licensed gun of his father and on the orders of
Gajey Singh, he fired upon Lakhi Ram as a result of which he
sustained serious injury on his neck and died on the spot. H
1002 SUPREME COURT REPORTS [2009] 2 S.C.R.
A 5. Godha Singh PW2 lodged a written report Ex. Ka.1 at
.L
police station lncholi on the same day at 11.35 a.m. Head
Moharrir Shyam Lal, PW6 prepared chick FIR and made entry
in the General Diary. Sub-Inspector Prabhat Kumar, PW8 was
entrusted with the investigation. He immediately rushed to the
B scene of occurrence and found that ASI llma Singh was already
present there and had completed inquest on the dead body of
the deceased Lakhi Ram. The dead body was also sent for
postmortem examination through constable Parmanand PW?.
C 6. The Investigating Officer collected sample of blood and
prepared site planEx.Ka.10 and arrested.both the respondents
(accused) from their house on the same day and also took the
gun which was kept in their room in his custody. The Investigating
Officer then recorded statements of the witnesses and on
D completion of investigation challaned both the respondents
through charge.,.sheet Ex.Ka.12. Dr. K.D. Sharma, PW5 i-
conducted the postmortem on the dead body of Lakhi Ram on
28.1.1979 at 2.30 pm and found the following ante mortem
injuries:
E 1. Gunshot wound of entry 6cm x 4cm x oral cavity on
the right side front of neck upper part, lower jaw and
lips. Blackening and scorching present, Margin
inverted .
2. .Gunshot wound of exit 1Ocm x Bern on left side face
F lips and upper part neck. Margin averted.
3. Lacerated wound 4cm x 2cm x b·one right side
forehead 2cm above the right eye brow.
4. Bone of low~r jaw broken jnto many pieces.
G
7. On internal examination, Dr. Sharma found that 3rd and
1
4 h cervical vertebrae were fractured. Large vessels of neck on
right side were fourid lacerated and there was also extensive
laceration of oral c·avity. In the opinion of the Medical Officer,
H death was caused due to shock and haemorrhage as a result
STATE OF U.P. V. 1003
GAJEY SINGH & ANR. [DALVEER BHANDARI, J.]
of ante-mortem injuries. It may also be mentioned here that in A
his statement before the trial court, Dr. K.D. Sharma further
opined that death of Lakhi Ram was possible at about 9.30
p.m. on 27.1.1979.
8. The prosecution in support of its case produced eight
witnesses of whom Jai Singh PW1, Godha Singh PW2 and
8
Sagira PW4 were the eye witnesses. Sahid Akhtar PW3 was
• ...,<(_
examined to state about the incident which had taken place
before the alleged incident. Both the accused in their respective
statements recorded under section 313 Cr.P.C. denied the
prosecution version. c
9. The accused gave counter version of the right of private
defence. According to them, Godha Singh, Lakhi Ram, ·Jai
Singh and Om Prakash came to their house armed with 'lathi'
and 'balkati'. They started assaulting Rajpal Singh with lathi and D
Gajey Singh with balkati. Seeing this, their father Mehar Singh
in order to save Rajpal Singh and Gajey Singh fired a shot from
his gun towards the accused persons. Gajey Singh further stated
that the police had arrested his father Mehar Singh and he was
detained for three days at the police station. In defence, the E
accused persons produced four witnesses. Dr. S.C. Goel DW1
proved injury report of accused Gajey Singh and Rajpal Singh
Ex.Ka.2 and Ex. Ka.3 respectively. Dr. S.C. Goel was posted
as Medical Officer, P.L.S. Hospital, Meerut. He stated that he
medically examined accused Gajey Singh on 27.1.1979 at 9.10
pm who was produced before him in police custody by constable F
Jatan Swarup of police station lncholi and found the following
injuries on his person:
"Incised wound 7 cm x 2cm bone deep on the right side
head, 3 % cm above eye brow. Placed vertically. Margins G
clear. Fresh blood was coming out. X-ray advised.
10. In the opinion of Dr. Goel, the above injury was caused
by a sharp edged weapon and was about half day old. On the
same day at 9.30 p.m., Dr. S.C. Goel medically examined
accused Rajpal Singh. who was also brought in police custody H
1004 SUPREME COURT REPORTS [2009) 2 S.C.R.
A by constable Jatan Swarup. The following injury was found on ,,..I...
the person of accused Rajpal Singh.
"Lacerated wound 1cm x Y2 cm x muscle deep on the tip
of the left thumb outer side margins lacerated. Blood
coming out on cleaning."
B
11. In the opinion of Dr. Goel, the injury was simple and
caused by blunt object and was about half a day old. Before the
trial court, Dr. Goel DW1 further stated that injuries on both Gajey
Singh and Rajpal Singh could be caused at about 9.30 am on
-~ .
c 27 .1.1979. He further opined that injury of Gajey Singh could
be the result of 'balkati' blow, while the injury of Rajpal Singh
was caused by a blunt object. It is not necessary to refer to the
evidence of other witnesses as they have no bearing on the
incident in question.
D 12. Learned Sessions Judge placed reliance on the J
evidence led by the prosecution and found both the accused
Gajey Singh and Rajpal Singh guilty of offence under section
302 read with section 34 IPC and sentenced them to
imprisonment for life. It may be relevant to mention that the
E factum of death of Lakhi Ram by firearm injury has neither been
disputed nor assailed by the counsel for the accused. According
to the appellant, Lakhi Ram was killed by the accused whereas
according to the accused, Lakhi Ram was killed by their father J;
Mehar Singh when he saw his son Rajpal Singh being assaulted
F by lathi and Gajey Singh with 'balkati'. As per the version of the
respondents, the incident occurred in front of their house and
from the evidence on record it is fully established that the
respondents also sustained injuries including a bone deep injury
on skull in the same incident and since these injuries have not
G bee.n explained by the prosecution witnesses, it must be held {
that the prosecution suppressed the genesis and origin of
occurrence and the prosecution gave a distorted version.
13. The learned counsel for the respondents submitted that
in law, the defence simply has to show that its defence plea was
H probable and it was not incumbent upon the accused persons
STATE OF U.P. V. 1005
GAJEY SINGH & ANR. [DALVEER BHANDARI, J.]
to prove their case to the hilt. Merely because the defence was A
also not true, that by itself cannot absolve the prosecution from
discharging its bounden duty and obligation of proving its case.
14. The High Court found sufficient weightage in the
submissions of the learned counsel for the respondents.
B
15. Sagira PW4 stated that at the time of occurrence, he
was inside his house. He came out on hearing cries and saw
-1 that Lakhi Ram deceased and Gajey Singh were grappling with
""""-"I each other. Gajey Singh struck a lathi on Lakhi Ram whereupon
Lakhi Ram fell on the ground and then Rajpal fired from his gun c
upon Lakhi Ram. Sagira, PW4 admitted that Gajey Singh had
sustained an injury on his head when he was thrown .on the
ground by Lakhi Ram deceased. He had not stated this fact
before the Investigating Officer. Though he claimed that he had
disclosed this fact to the investigating officer but could not
D
~ provide any explanation why such an important fact was not
mentioned in his statement recorded during the investigation.
"The Investigating Officer admitted that this witness did not state
the above fact but had stated that Lakhi Ram had assaulted
Gajey Singh with a brick bat. On being confronted, Sagira PW4
E
denied to have stated so to the investigating officer and further
stated that he could not assign any reason as to why it has been
so recorded. The investigating officer, however, testified that
) the witness had made such a statement to him. It would thus
appear that up to the investigation stage no explanation of
injuries of accused persons had been put forward by the F
witnesses excepting Sagira, PW4 who had stated that Gajey
Singh had sustained injury on his head as he was assaulted by
a brick bat by deceased Lakhi Ram. Faced with the difficulty
that Gajey Singh had sustained an incised wound of sharp
edged object in the same incident, these witnesses did not G
.
~
hesitate to improve upon the earlier version placed at the initial
stage and perhaps under some legal advise they were made to
state for the first time at the trial that when accused Gajey Singh
had struck a lathi blow on the forehead of deceased Lakhi Ram,
the latter caught hold of him and threw him on the ground. Neither H
1006 SUPREME COURT REPORTS [2009] 2 S.C.R.
A in the first information report nor at the stage of investigation,
Gajey Singh was alleged to be armed with lathi nor it was the
case of the prosecution that Gajey Singh gave any assault by
lathi on the person of Lakhi Ram deceased. This part of the
prosecution case appears to have been improved at the trial
B so as to bring evidence of witnesses in consonance with the
medical evidence because in. the postmortem examination of
deceased Lakhi Ram one lacerated wound on right side of
forehead was also found. The.witnesses al.so made to state for
the first time at the trial that after receiving lathi' injury on his
c forehead at the hands of Gajey Singh, he threw Gajey Singh on
the ground. This development appears to have been made to
explain the bone deep incised injury sustained by Gajey.Singh
in the. same inddent. ·
16. The High Court also observed that according to the
D statement of the investigating officer he had arrested both the
respondents on the same day and found injuries on their person
and fot that reason they were medically examined in the police
custody. f3y no stretch of imagination, injury of Gajey Singh could
be ·s~1id to be supetficial or self inflicted. Dr. S.C. Goel who had
E medically examined Gajey Singh has denied the prosecution
suggestion that the incised injury of Gajey Singh might have
been caused by a fall on a piece of glass. He was recalled for
furth~r 1cross examinatitm by the Deputy Government Counsel _,
but the dG>cto·r stuck to his opinion in a firm-manner. In the instant •
f=' case, t'he margins ·of incised injury of Gajey Singh were clear
and clean cut which in the opin·ion of Dr. Goel could not find any
injury caused due to a fall on a piece of glass. In the impugned
judgment, the High Court came to the conclusion that the
prosecution has failed to explain injuries suffered by both the
G respondents in the same incident.
17. The High Court in the impugned judgment observed
that the incident occurred in front of the house of the respondents.
lhe High Court disbelieved the claim of the prosecution
witnesses that they and deceased were going to the residence
H of Akhtar for 'chhol' because the house of the respondents was
STATE OF U.P. V. 1007
GAJEY SINGH & ANR. [DALVEER BHANDARI, J.]
not situated on the way leading from their house to their field. A
The injuries sustained on defence side belie them as Gajey
Singh sustained a bone deep incised injury caused by a sharp
cutting object and Rajpal had sustained the injury by a blunt
object. The High Court in the impugned judgment discarded
the explanation given by the witnesses with regard to the injury B
of Gajey Singh that the same might have been caused on
account of his being thrown on the ground. The High Court also
_ -*- observed that the witnesses produced at the trial were all
interested as they made several vital and important
improvements at the trial from the version as was put in the first c
information report during investigation.
18. The High Court came to the definite conclusion that
the prosecution has suppressed the genesis and the origin of
the occurrence and is thus guilty of not presenting the true version
-._ before the court. D
19. The High Court observed that non-explanation of the
injuries on the accused persons has rendered the prosecution
version doubtful and makes the defence version more probable
that injuries on the deceased Lakhi Ram were inflicted in E
exercise of right of private defence.
20. The High Court also considered the question -whether
t the right of private defence extended to the voluntary causing of
death of deceased Lakhi Ram in the facts and circumstances
of the case? F
21. Sections 96 to 99 of the Indian Penal Code read as
under:
"96. Things done in private defence.- Nothing is an
offence which is done in the exercise of the right of private G
defence.
97. Right of private defence of the body and of
property. - Every person has a right, subject to the
restrictions contained in section 99, to defend-
H
1008 SUPREME COURT REPORTS [2009] 2 S.C.R.
A First. - His own body, and the body of any other person,
against any offence affecting the human body;
Secondly. - The property, whether movable or immovable,
of himself or of any other person, against any act which is
an offence falling under the definition of theft, robbery,
B mischief or criminal trespass, or which is an attempt to
commit theft, robbery, mischief or criminal trespass.
98. Right of private defence against the act of a
person of unsound mind, etc. - When an act, which
c ' would otherwise be a certain offence, is not that offence,
by reason of the youth, the want of maturity of
understanding, the unsoundness of mind or the intoxication
of the person doing that· act, or by reason of any
misconception on the part of that person, every person
D has the same right of private defence against that act
which he would have if the act were that offence.
99. Acts against which there is no right of private
defence. - There is no right of private defence against
an act which does not reasonably cause the apprehension
E of death or of grievous hurt, if done, or attempted to be
done, by a public servant acting in good faith under colour
· of his office, though that act, may not be strictly justifiable
bylaw.
There is no right of private defence against an act which
F docs not reasonably cause the apprehension of death or
of grievous hurt, if done, or attempted to be done, by the
direction of a public servant acting in good faith under
colour of his office, though that direction may not be strictly
justifiable by law.
G
There is no right of private defence in cases in which there ~
is time to have recourse to the protection of the public
authorities.
Extent to which the right may be exercised. - The
H right of private defence in no case extends to the inflicting
STATE OF U.P. V. 1009
GAJEY SINGH & ANR. [DALVEER BHANDARI, J.]
'~ of more harm than it is necessary to inflict for the purpose A
of defence."
22. Section 96 of the Indian Penal Code declares that an
act done in the exercise of the right of private defence is not an
offence. Section 97 specified the extent of the right of private
defence whereas Section 99 prescribes the limitations on the
B
exercise of this right.
-~ 23. Section 100 of the Indian Penal Code is extracted as
under:
"100. When the right of private defence of the body c
extends to causing death. - The right of private defence
of the body extends, under the restrictions mentioned in
the last preceding section, to the voluntary causing of death
or of any other harm to the assailant, if the offence which
1 occasions the exercise of the right be of any of the D
descriptions hereinafter enumerated, namely: -
First. - Such an assault as may reasonably cause the
apprehension that death will otherwise be the consequence
of such assault;
E
Secondly. - Such an assault as may reasonably cause
the apprehension that grievous hurt will otherwise be the
) consequence of such assault;
Thirdly. -An assault with the intention of committing rape;
F
Fourthly. - An assault with the intention of gratifying
unnatural lust;
Fifthly. - An assault with the intention of kidnapping or
abducting;
G
~ Sixthly. -An assault with the intention of wrongfully confining
a person, under circumstances which may reasonably
cause him to apprehend that he will be unable to have
recourse to the public authorities for his release."
24. Section 100 of the Indian Penal Code justifies the killing H
1010 SUPREME COURT REPORTS [2009] 2 S.C.R.
A of an assailant when apprehension· of atrocious crime /-"""
enumerated in several clauses of the section is shown to exist.
First clause of section 100 applies to cases where there is
reasonable apprehension of death while second clause is
attracted where a person has a genuine apprehension that his
B adversary is going to attack him and he reasonably believes
that the attack will result in a grievous hurt. In that event he can
go to the extent of causing the latter's death in the exercise of
the right of private defence even though the latter may not have >-
inflicted any blow or injury on him.
c 25. It is settled position of law that in order to justify the act
of causing death of the assailant, the accused has simply to
satisfy the court that he was faced with an assault which caused
a reasonable apprehension of death or grievous hurt. The
question whether the apprehension was reasonable or not is a
D question of fact depending upon the facts and circumstances ;
of each case and no strait-jacket formula can be prescribed in
•
this regard. The weapon used, the manner and nature of assault
and other surrounding circumstances should be taken into
account while evaluating whether the apprehension was justified
E or not?
26. In the present case, the circumstances indicate that
Gajey Singh was assaulted on head by a sharp edged weapon
'balkati' causing a bone deep injury. As per the defence version ~ '
there were four assailants who had come well prepared to
F assault at the door of their own house. In such a situation
accused persons could have a reasonable apprehension of
de:ath or at least of grievous hurt. It was a case of single gun
shot which was not repeated. Th-erefore, it cannot be said that
the accused persons had exceeded their right of private defence f-
G in any manner.
~
27. In this case, the trial court convicted both the accused
and the High Court allowed the appeal filed by the accused
persons and acquitted them. In the instant case, the injury
caused on Rajpal Singh is neither superficial nor of minor nature.
H
STATE OF U.P. V 1011
GAJEY SINGH & ANR. [DALVEER BHANDARI, J.]
Non-explanation of the injuries on Rajpal Singh and Gajey Singh A
•-4
has created serious doubt about the credibility of the prosecution
version.
28. It would be appropriate to recapitulate ratio of some of
the relevant cases decided by this court.
B
29. In State of Karnataka v. Jinappa Payappa Kudachi
-1
& Others 1994 Supp. (1) SCC 178, this Court observed thus:
~- "6. The effect of non-explanation by the prosecution about
the injuries on the accused persons depends on the facts
and circumstances of each case. Normally if there is such c
non-explanation, it may at the most give scope to argue
that the accused had the right of private defence or in
general that the prosecution evidence should be rejected
as they have not come out with the whole truth particularly
regarding the genesis of the occurrence ... " D
'~-
30. In Rizan & Another v. State of Chhattisgarh (2003)
2 SCC 661, this Court observed thus:
"Non-explanation of the injuries sustained by the accused
at about the time of occurrence or in the course of E
altercation is a very important circumstance. But mere
non-explanation of the injuries by the prosecution may not
~
affect the prosecution case in all· cases. This principle
f
applies to cases where the injuries sustained by the
accused are minor and superficial or where the ev_idence F
is so clear and cogent, so independent and disinterested,
so probable, consistent and creditworthy, 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 Bihar (1976) 4 sec 394). In this case, as the G
• ~
courts· below found there was not even a single injury on
the accused persons, while PW 2 sustained a large number
of injuries and was hospitalized for more than a month. A
plea of right of private defence cannot be based on
surmises and speculation. While considering whether the
H
1012 SUPREME COURT REPORTS [2009] 2 S.C.R.
A 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 must be examined with care and viewed in
B its proper setting. Section 97 deals with the subject-matter
of the right of private defence. The plea of right comprises
the body or property (1) of the person exercising the right;
or (i1) of any other person; and the right may be exercised
in the case of any offence against the body, and in the >- I
c 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. Sections 96 and 98 give a right of private
defence against certain offences and acts. The right given
D 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 rise to reasonable
grounds for apprehending that either death or grievous
hurt would be caused to him. The burden is on the accused
E
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 the right of private defence."
31. In \I. Subramani & Another v. State of T.N. (2005)
F 10 sec 358while dealing with the right of private defence this
court observed as under:-
"11 .... Section 96 IPC provides that nothing is an offence
which is done in the exercise of the right of private defence.
The section does not define the expression "right of private
G defence". It merely indicates that nothing is an offence
which is done in the exercise of such right. Whether in a
particular set of circumstances, a person legitimately acted
in the exercise of the right of private defence is a question
of fact to be determined on the facts and circumstances
H of each case. No test in the abstract for determining such
STATE OF U.P.'V. 1013
GAJEY SINGH & ANR. [DALVEER BHANDARI, J.]
a question can be laid down. In determining this question A
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 exercised, it is open to the court to consider B
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 ..... "
32. A three-Judge Bench of this Court in Abdul Rashid
Abdul Rahiman Patel & Others v. State of Maharashtra C
(2007) 9 sec 1, observed that it is well settled that if injuries on
the defence are not explained by the prosecution, the same may
be taken to be a ground to discard the prosecution case, in
case the truthfulness of prosecution case is otherwise doubted.
But, in cases like the present one, where there is consistent D
evidence of the injured eyewitnesses apart from evidence of
independent eyewitnesses, even if it is assumed that the
prosecution has failed to explain the minor and simple injuries
on the defence, the same cannot be taken to be a ground to
reject the testimony of such witnesses. In the instant case, the E
injuries were neither superficial nor minor therefore, non-
explanation of serious injuries in the instant case doubts the
very genesis of the prosecution version.
33. We have heard the learned counsel for the parties at
length. The view which has been taken by the High Court is F
certainly a po$sible and plausible view. Therefore, we do not
think it appropriate to interfere with the impugned judgment.
34. The appeal being devoid of any merit is accordingly
dismissed.
N.J. Appeal dismissed.
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