V. SUBRAMANI AND ANR.versusSTATE OF TAMIL NADU

A                            V. SUBRAMANI AND ANR.
                                           v.
                             STATE OF TAMIL NADU

                                  MARCH 3, 2005

B                   [ARIJIT PASA Y AT AND S.H. KAPADIA, JJ.]


            Penal Code, 1860 :

            Sections 96 to 102 and 105-Criminal trial-Right of private defence-
C Nature of-Held : It is essentially a defensive right circumscribed by the
     governing statute, i.e. !PC and should not be allowed to be pleaded or availed
     as a pretext for a vindic.tive, aggressive or retributive purpose of offence-
     Burden of proof is on the accused, who sets up the plea of private defence-
      The burden stands discharged by showing preponderance of probabilities in
D    favour of that plea on the basis of material on record-On facts, the accused,
      who were convicted by courts below for causing murder, failed to establish
     that they were exercising right ofprivate defence-Evidence Act, 1872-Section
     105.

           Sections 302 and 304-Part I-Murder-Death occurred on account of
E    a single blow given on the head by a small wooden yoke-Plea of self-defence
     by accused not established-Courts below had recorded conviction under
     Section 302-Held : On facts, the conviction is liable to be altered to one
     under Section 304-Part I with custodial sentence of I 0 years.

           According to the prosecution, pursuant to a wordy altercation
F    between Al and PWl in the presence of PW2, Al beat PWI with a stick
     and fled to the house of A6. Subsequently, PWs 1 and 2 started shouting
     in front of the house of A6, when A3 yelled that PWs t and 2 should be
     assaulted. PWl was assaulted by Al, A2 and A4. PWs 2 and 3 were also
     assaulted. Deceased, the father of PWs 1, 3 and 5, rushed to the scene of
G    occurrence in their support when he was assaulted by A3 and AS over his
     head with yokes while A6 caught hold of him, causing bleeding injuries
     of serious nature. He was taken to the hospital where he died.

          Though the prosecution had contended that all the accused persons
     acted in furtherance of common object being members of unlawful
ll                                        536
                        V. SUBRAMANI v. STATE                            537

assembly and committed the crime, the Trial Court did not accept the A
version. Considering the individual overt acts, it acquitted A-4, A-6 and
A-7 but convicted A-I and A-2 under Section 324 IPC and A-3 and A-5,
i.e. the appellants under Section 302 IPC. The conclusions of the Trial
Court were affirmed by the High Court.

      In appeal to this Court, it is contended that the evidence on record       B
clearly showed that ladies related to the accused were assaulted first; that
even if the prosecution version is accepted in toto, the accused persons
made assaults in the process of protecting their lives and properties; that
since the accused persons had exercised the right of private defence, the
conclusions of the courts below cannot be maintained, and that the accused       C
persons have also suffered injuries in exercise of right of private defence.

      Disposing of the appeal, the Court

      HELD : I. 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 possible for the   D
Court to presume the truth of the plea of self-defence. The Court shall
presume the absence of such 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 witnesses examined for the
prosecution. An accused taking the plea of right of private defence is not
necessarily required to call evidence; he can establish his plea by reference    E
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 prosecution 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          F
harm caused by the accused was necessary for either warding off the
attack or for forestalling 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 discharged by showing
preponderance of probabilities in favour of that plea on the basis of the
 material on record. The accused need not prove the existence of the right       G
of private defence beyond reasonable doubt. 1543-B-D; 544-A)

      Munshi Ram and Ors. v. Delhi Administration, AIR (1968) SC 702;
State of Gujarat v. Bai Fatima, AIR (1975) SC 1478; State of UP. v. Mohd.
Musheer Khan, AIR (1977) SC 2226 and Mohinder Pal Jolly v. State of
Punjab, AIR (1979) SC 577, relied on.                                     H
    538                   SUPREME COURT REPORTS                  [2005] 2 S.C.R.

A         Salim Zia v. State of UP. AIR (1979) SC 391, referred to.

          2. The number of injuries is not always a safe criterion for
    determining who the aggressor was. It cannot be stated as a universal rule
    that whenever the injuries are o.n the body of .the accused person_s, a
    presumption must necessarily be raised that the accused persons had
B   caused injuries in exercise of the right of private defence. The defence has
    to further establish that the injuries so caused 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
C   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 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. (544-B-D]
D
          Lakshmi Singh v. State of Bihar, AIR (1976) SC 2263, relied on.

          3. A plea of right of private defence ;cannot be based on surmises
    and speculation. While considering whether the right of private defence
    is available to an accused, it is not relevant whether he may have a chance
E   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.
                                                                     1544-D-EI

          4. In order to find whether right of private defence is available or
F   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 accused had time to have recourse to public authorities are all relevant
    factors to be considered. 1545-CI

G        Biran Singh v. State of Bihar, AIR (1975) SC 87; Wassan Singh v. State
    of Punjab, It 9961 1 SCC 458 and Sekar alias Raja Sekharan v. State
    represented by Inspector of Police, T.N. 120021 8 SCC 354, relied on.

          Jai Dev. v. State of Punjab, AIR (1963) SC 612, referred to.

          5. Due weightage has to be given to, and hyper technical approach
H
                       V. SUBRAMANI v. STATE                             539
has to be avoided in considering what happens on the spur of the moment          A
on the spot and 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 aggressor, even after the cause of reasonable
apprehension has disappeared, the plea of right of private-defence can           B
legitimately 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. (545-G-H; 546-A)

     Butta Singh v. The State of Punjab, AIR (1991) SC 1316 and Vidhya
Singh v. State of M.P., AIR (1971) SC 1857, relied on.                           C
      6. The right of private defence is essentially a defensive 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     D
unlawful 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 kilting.
A right to defend does not include a right to launch an offensive,
particularly when the need to defend no longer survived. [546-F-G)
                                                                                 E
       7. Though it cannot be laid do.wn as a rule of universal application
that whenever death occurs on account of a single blow, Section 302 lPC
is ruled out, the fact situation has to be considered in each case. It appears
from the records, that a single blow was given on the head of the deceased
by a small wooden yoke. Considering the background facts, it would be            F
proper to alter the conviction from Section 302 IPC to Section 304 Part I
IPC. Custodial sentence of 10 years would meet the ends of justice.
                                                                    (547-A-B)

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 378
of 2oos.                                                      G
     From the Judgment and Order dated 24.12.2003 of the Madras High
Court in Crl. A. No. 5 of 1996.

      Ranjit Kumar, V.G. Pragasam and T. Harish Kumar for the Appellants.
                                                                                 H
    540                    SUPREME COURT REPORTS                     [2005] 2 S.C.R.

A         Ab hay Kumar and Subramonium Prasad for the Respondent. ..

          The Judgment of the Court was delivered by

          ARIJIT PASA VAT, J. Leave granted.

B          Appellants call in question legality of the judgment rendered by a
    Division Bench of the Madras High Court affirming their conviction and
    sentence· for alleged commission of offence punishable under Se<;tion 302 of
    the Indian Penal Code, 1860 (in short the 'IPC'). Seven persons faced trial
    for allegedly having committed homicidal death of one Vadivel (hereinafter
    referred to as the 'deceased') and causing injuries on various persons in
C   furtherance of their common intention after forming themselves into an
    unlawful assembly. It was alleged that they had committed rioting, assaulted
    some of the witnesses causing injuries in addition to causing death of the
    deceased. They were charged for commission of offences punishable under
    Sections 147, 148, 323, 307, 302 read with Section 109, Section 302 read
D   with Section 149 and 307 read with Section 149 IPC. The trial Court found
    that in respect of three persons (hereinafter describe_ci as A-4, A-6 a~d A-7)
    no offence was made out and, therefore, they were acquitted.

          Two of the accused persons before the Trial Court i.e. A-1 and A-2
    were convicted of offence punishable under Section 324 IPC. The present
E   appellants who were A-3 and A-5 were convicted in terms of Section 302
    IPC. Though the prosecution had contended that all the accused pers~ns
    acted in furtherance of common object being members of unlawful assembly
    and committed the crime, the trial Court did not accept.the version. Considering
    the individual overt acts the learned Trial Judge had recorded conviction as       f
    afore-noted. So far as the present appellants are concerned, they were sentenced
F   to undergo rigorous imprisonment for life.

          Prosecution version as unfolded during trial is as follows:

          Thiru Vadivel (hereinafter referred to as the 'deceased') was the father
    ofElango (PW-I), Ravi (PW-3) and Anbazhagan (PW-5). Selvam (PW-2) is
G   the cousin brother of PW- I. Manjula (PW-4) is the wife of PW-5 and daughter-
    in-law of the deceased. PW-6 Krishna Pillai was the brother of the ~eceased.
    The accused A-2 and A-7 are the sons of A-6 and others are their relatives.·
                                                                                       -,
    All are residing in a village called Kollumedu.

          On 2 l.l2. I993 one Siva, sister's son of Ravi Kumar (A- I) was grazing
H
               Y. SUl3RAMANI v. STATE [PASAYAT. J.]                        541
the buffalos of A- I in the lands belonging to PW-1 's family. On seeing this,     A
PW-5 assaulted him which was reported to A-1, who questioned the conduct
of PW-5 in assaulting him. On hearing this news, deceased and Krishnapillai
intervened and they were also assaulted, thereby straining the relationship.

       On 22. 12.1993 at about 8.00 a.m., PWs 1 and 2 were brushing their
teeth near the common well of their village, Kollumedu. At the time, they          B
noticed that Ravikumar (A-1) was passing nearby. On seeing him, PW-I
questioned him as to whether it was fair on his part to ass<mlt PW-5 having
grazed the buffalos in their fand. A- 1 took exception to this questioning by
PW-I, threatened to assault him. Thereafter, there was a wordy altercation
between A-1 and PW-1 in the presence of PW-2. A-1 became furious, went             C
inside the house of A-6 which is very near to the common well and brought
a stick, beat PW- I on his back. Aggrieved by this conduct of A-1, PW- 1 and
his brother PW-2 chased him. A- I took shelter in the house of A-6.

       PWs I and 2 unable to retaliate and assault A-1, became unrestrained
and were shouting in front of the house of A-6. A-3, Subramani hearing the         D
threatening calls of PWs I and 2, yelled, that PWs. I and 2 should be assaulted,
even if a murder takes place since they had stepped into their house and
shouted. Encouraged by the support, when PW-I was standing in front of the
house of A-6, A-2 came there with a weapon, assaulted PW-I over his head.
A-4 assaulted PW-I by a reaper M.0.3. At the same time, A-I assaulted him
with an iron rod over the head. A-2 assaulted PW-2 and caused injuries. On         E
seeing this incident, PW-3 also went there to their rescue. A-2 attacked Ravi
causing stab injuries. The father of PWs I, 3 and 5 i.e. the deceased hearing
this news, rushed to the scene of occurrence in their support. On seeing the
deceased, A-3 and A-5 assaulted him over his head with yokes (M.0.5 and
M.0.6), while A-6 caught hold of him, causing bleeding injuries of serious         p
nature. PW- I chased the accused, taking a stick available from the scene of
occurrence. PW-6 on hearing the incident that his brother was assaulted came
there, saw the injured and chased the accused away and in that process A-
 l also sustained injuries. This incident was witnessed by Muthukrishnan,
Venupillai and Nagappan.
                                                                                   G
      PW- I and others took the deceased in an injured condition to
Dindivanam Hospital at about 11.30 a.m. Doctor (PW-8) attended on him
and declared that he was dead at about 12. I 0 p.m. on 22.12.1993. Information
was lodged at the police station. Investigation was undertaken and on
completion thereof charge sheet was placed. The accused persons pleaded            H
    542                    SUPREME COURT REPORTS                     [2005) 2 S.C.R.

A  innocence and, therefore, the trial was conducted. After placing reliance on
   the evidence of the witnesses, more particularly, the injured eye witnesses
   PWs I, 2 and 3 the trial Court found the accused persons guilty as aforesaid.
   The accused persons took the plea before the trial Court that they had also
   suffered injuries. The wife of A-6, namely, Nagammal and Padma mother of
   PW-4 were also injured. It is on record that the deceased and others had
B assaulted Nagammal and Padma and, therefore, in exercise of right of private
  ,defence the accused persons may have inflicted some injuries in the process
   of defending their life and property. The trial ~ourt did not accept the plea.
   The conclusions of the trial Court were affirmed by the Higl') Court by the
   impugned judgment.
c          In ,support of the appeal, Mr. R,anjit Kumar, learned senior counsel
    submitted that the evidence on record clearly shows that ladies were assaulted
    first and to protect them under the apprehension of likely assault on them the
    accused persons in the process of protecting their lives and properties have
    made assaults, even if prosecution version is accepted in toto. Since the
D   accused persons had exercised the right of private defence, the conclusions
    of the courts below cannot be maintained. The evidence on record establishes
    a free fight and the members of the complainant party were the aggressor.
    The accused persons have also suffered injuries in exercise of right of private
    defence.

E          In re.sponse, learned counsel for the respondent-State submitted that
    this is not a case where plea of right of private defence can be pressed into
    service. Merely because some of the accused persons have suffered some
    injuries which were superficial in nature, there is no question of interference
    with the well-reasoned and well-discussed judgment of the courts below.
F
          Only question which needs to be considered is the alleged exercise of
    right of private defence. 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 defence'. It merely indicates
    that nothing is an offence which is done in the exercise of such right. Whether
G   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 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 surrounding circumstances. It is not necessary for
H   the accused to plead in so many words that he acted in self-defence. If the
                         V. SUBRAMANI v. STATE [PASAYAT . .J.]                      543
-..
        circumstances show that the right of private defence was legitimately exercised,    A
        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. Under Section I 05 of the Indian
        Evidence Act, 1872 (in short 'the Evidence Act'), the burden of proof is on
        the accused, who sets up the plea of self-defence, and, in the absence of           B
        proof, it is not possible for the Court to presume the truth cf the plea of self-
        defence. The Court shall presume the absence of such 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 witnesses examined



-
        for the prosecution. An accused taking the plea of the right of private defence
        is not necessarily required to call evidence; he can establish his plea by          C
        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 prosecution 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        D
        forestalling 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 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, AIR (1968) SC 702), State of Gujarat v. Bai Fatima,        E
        AIR (1975) SC 1478, State of U.P. v. Mohd. Musheer Khan, AIR (1977) SC
        2226 and Mohinder Pal Jolly v. State of Punjab, AIR (1979) SC 577. Sections
         I00 to 10 I define the extent of the right of private defence of body. If a
        person has a right of private defence of body under Section 97, that right
        extends under Section 100 to causing death ifthere is reasonable apprehension
        that death or grievous hurt would be the consequence of the assault. The oft        F
        quoted observation of this Court in Salim Zia v. State of U.P., AIR (1979)
        SC 391 ), runs as follows:

                    "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 is required to prove its        G
                case beyond reasonable doubt, the accused need not establish the plea
                to the hilt and 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 .... "                                                     H
    544                    SUPREME COURT REPORTS                    [2005] 2 S.C.R.
                                                                                       ......_
A The accused need not prove the existence of the right of private defence
    beyond reasonable doubt. It is enough for him to show as in a civil case that
    the preponderance of probabilities is in favour of his plea.

           The number of injuries is not always a safe criterion for determining
    who the aggressor was. It cannot be stated as a universal rule that whenever
B   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 so caused on the accused probabilise the version of the right of
    private defence. Non-explanation. of the injuries sustained by the accused at
C   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 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
D   the omission on the part of the prosecution to explain the injuries. [See
    Lakshmi Singh. v. State'oj Bihar, AIR (1976) SC 2263). A plea of right of
    private defence cannot be based on surmises and speculation. While
    considering whether the right of private defence is available to an accused,
    it is not relevant whether he may have a chance to inflict severe and mortal
E   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 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
F   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 under Sections 96 to 98 and I 00
    to I 06 is controlled by Section 99. To claim a right of private defence
    extending to voluntary causing of death, the accused must show that there
G   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 which extended to
    causing of death. Sections I 00 and I 01, IPC define the limit and extent of
    right of private defence.
H
                       V. SUBRAMANI v. STATE [PASAYAT . .I.]                      545

           Sections I 02 and I05, IPC deal with commencement and continuance              A
     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 been committed but not until there is that reasonable
     apprehension. The right lasts so long as the reasonable apprehension of the          B
     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 threat has either been destroyed or has been put to route,
     there can be no occasion to exercise the right of private defence.

            In order to find whether right of private defence is available or not, the C
     injuries received by the accused, the imminence of threat to his safety, the
     injuries caused by the accused and the circumstances whether the accused
     had time to have recourse to public authorities are all relevant factors to be
     considered. Similar view was expressed by this Court in Biran Singh v. State
     of Bihar, AIR (1975) SC 87. (See: Wasson Singh v. State of Punjab, [19961
     1 SCC 458 and Sekar alias Raja Sekharan v. State represented by Inspector D
     of Police, T.N. [2002] 8 SCC 354.

            As noted in Butta Singh v. The State of Punjab, AIR (1991) SC 1316,
      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.          E
      In moments of excitement and disturbed mental equilibrium it is often difficult


-
      to expect the parties to preserve composure and 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             F
      threat becomes so imminent. Such situations have to be pragmatically viewed
    . and not with high-powered spectacles or miqoscopes 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 the paramount consideration. But, ifthe fact situation   G
      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-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       H
    546                     SUPREME COURT REPORTS                     (2005] 2 .S.C.R.

A   finding of fact.

          The right of self-defence is a very valuable right, serving a social
    purpose and should not be construed narrowly. (See Vidhya Singh v. State of
    MP., AIR (1971) SC 1857. Situations have to be judged from the subjective
    point of view of the accused concerned in the surrounding excitement and
B   confusion of the moment, confronted with a situation of peril and not by any
    microscopic and pedantic scrutiny. In adjudging the 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
C   which would seem absolutely necessary to a perfectly cool bystander. The
    person facing a reasonable apprehension of threat to himself cannot be expected
    to modulate his defence step by step with any arithmetical exactitude of only
    that much which is required in the thinking of a man in ordinary times or
    under normal circumstances.

D        In the illuminating words of Russel (Russel on Crime, I Ith 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, habitation or property. In these cases,
E           he is not obliged to 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."

          The right of private defence is essentially a defensive right circumscribed
F   by the governing statute i.e. the !PC, 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 aggression and
    not as retaliatory measure. While providing for exercise of the right, care has
G   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 heed to defend no longer
    survived.

          Considering the background facts as highlighted above when tested in
H   the backdrop of the legal principles noted supra the inevitable conclusion is
                 V. SUBRAMANI v. STATE (PASAYAL J.]                      547
that the accused persons had not established that they were exercising right     A
of private defence. The residual plea is that only a single blow was given by
a wooden yoke of very light weight. Though it cannot be laid down as a rule
of universal application that whenever death occurs on account of a single
blow, Section 302 !PC is ruled out, the fact situation has to be considered in
each case. It appears from the records, as noted above, that a single blow was   B
given on the head of the deceased by a small wooden yoke. Considering the
background facts as noted above, it would be proper to alter the conviction
from Section 302 !PC to Section 304 Part I IPC. Custodial sentence of IO
years would meet the ends of justice.

     The appeal is accordingly disposed of.
                                                                                 c
B.B.B.                                                   Appeal disposed of.