Full Judgment Text
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CASE NO.:
Appeal (crl.) 828 of 2007
PETITIONER:
Ananta Deb Singha Mahapatra & Ors
RESPONDENT:
State of West Bengal
DATE OF JUDGMENT: 06/06/2007
BENCH:
Dr. ARIJIT PASAYAT & D.K. JAIN
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (Crl.) No.1263 of 2007)
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a Division
Bench of the Calcutta High Court dismissing the appeal filed
by the appellants questioning their conviction for the offence
punishable under Sections 304 Part II read with Section 149
of the Indian Penal Code, 1860 (in short the ’IPC’). Appellants
1 to 4 before the High Court were sentenced to suffer RI for 8
years and to pay a fine of Rs.1,000/- each with default
stipulation. Appellants 1, 2 and 5 before the High Court were
also convicted under Section 323 read with Section 149 and
sentenced to undergo imprisonment for six months and to pay
a fine of Rs.200/- each with default stipulation. Appellants 1,
2 and 5 before the High Court are appellants 1, 2 and 3
respectively in this appeal.
3. Background facts in a nutshell are as follows:
On 13.9.1990 at about 2:30 P.M. the appellants
accompanied by 15 others as named in the FIR started cutting
paddy from the land of the informant Niranjan Singa
Mahapatra (P.W. 2) in plot no. 122/470 of mouza Dakshinbaid
within P.S. Khatra. Seeing this Madhusudan Singha
Mahapatra (hereinafter referred to as ’deceased’) reached there
and raised protest, and over this the accused persons
assaulted on the head of the deceased with lathis and also cut
the fingers of hand of the deceased with sharp sickle. Hearing
the alarm by the deceased, P.W. 2 and his mother Monorama
Singha Mahapatra (P.W. 4) reached there, but the accused
persons also assaulted P.W. 2 and P.W. 4 and in their
presence gave further blows on the head of the deceased
Madhusudan Singha Mahapatra with sickles. Madhusudan
Singha Mahapatra fell down on the land and thereafter, P.W. 2
with the help of the other villages brought his father and
mother to the police station. The police officer on duty told
them to go to the Khatra hospital and as instructed they came
to the Khatra PHC. After primary treatment the doctor of the
said PHC sent all the injured persons to the Bankura Medical
College and Hospital where parents of P.W. 2 were admitted
and P.W. 2 was discharged after primary treatment. P.W. 2
sent the written complaint FIR (ext. 2) through his brother in
law Dwijapada Kar (P.W. 5) to the Khatra Police Station and on
the basis of such written complaint Khatra P.S Case no. 40
dated 13.9.90 under sections 147/148/149/48/324/325/379
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of IPC was started against the accused persons. The injured
Madhusudan Singha Mahapatra succumbed to the injuries on
14.9.90, and thereafter, Section 304 of IPC was added and
after completing the investigation Officer (in short I.O.)
submitted charge sheet against the accused persons under
section 147/148/149/48/324/325/379 and 304 IPC. The
trial that followed ended in the conviction and sentence of the
appellants as mentioned above.
5. Before the High Court the primary stand was that the FIR
was manipulated and ante dated and it was a tampered
document. Reference was made to evidence of PW-2 in this
regard. It was also contended that the accused persons were
seriously prejudiced because case and counter case were not
tried by the same court. The plea of right of private defence
was also raised.
The learned counsel for the State on the other hand
submitted that the FIR was not manipulated, and the right of
private defence was also not available.
6. The High Court analysed the evidence elaborately and
came to hold that the trial court’s conclusions were
irreversible.
7. In support of the appeal learned counsel for the parties
reiterated the submissions before the High Court. Learned
counsel for the appellant additionally submitted that the
sentence imposed by the trial Court and the High Court are
expressly harsh.
8. So far as the plea relating to FIR is concerned, it can be
seen that the High Court has referred to the evidence of PW-16
and PW-4 to conclude that there was no substance in the plea
relating to manipulation of the FIR. The High Court noted as
follows:
"The formal FIR (ext. 7) shows that the original
written complaint/FIR was received on 13.9.90
at 4.05 P.M. and the police officer made an
endorsement on the back of ext. 7 to the effect
that the original written compliant was
attached herewith. There is endorsement of
the same police officer on the reverse page or
the second page of the original FIR with his
signature and date 13.9.90 which shows that
he received the same on 13.9.90 at 4.05 P.M.
and started Khatra P.S. Case No.40 dated
13.9.90 and the said endorsement on the
original written complaint is ext. 2. The
original written complaint was written by
P.W.2 in Bengali and in it the Bengali digits
’14’ was changed to ’13’. This overwriting
concerning date in Bengali in the original
complaint cannot establish that FIR was ante-
dated, ante-timed and manufactured."
9. Coming to the plea relating to right of private defence the
High Court noted that the Madhusan fell down in the Paddy
field after receiving lathi blows and PW-2 went to a safe place
to save his life and there was none to attack the appellants. In
spite of this fact, the appellants went on assaulting the
deceased and in that process caused more harm to the
deceased than was necessary to exceed the right of private
defence. Thus the appellants were guilty for the death of
Madhusudan.
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10. 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 in a particular
set of circumstances, a person 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
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 exercised, 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
105 of the Indian 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 possible for the 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 the right of private defence is not
required to call evidence; he can establish 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 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 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 is 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: 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 100 to 101 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 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 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 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."
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11. 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.
12. 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 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
probabilities 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
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 Bihar (AIR 1976 SC 2263)]. In this case, as the Courts
below found there was not even a single injury on the accused
persons, while PW2 sustained 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 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 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 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 100 to 106 is controlled by Section 99.
To claim a right of private defence extending to voluntary
causing of death, the accused must shows 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 which extended to causing of
death. Sections 100 and 101, IPC define the limit and extent
of right of private defence.
13. Sections 102 and 105, IPC deal with commencement and
continuance of the right of private defence of body and
property respectively. The right commences, as soon as a
reasonable apprehension of danger to the body arises from an
attempt, or threat, or 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.
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
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destroyed or has been put to route, there can be no occasion
to exercise the right of private defence.
14. 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 accused had time
to have recourse to public authorities are all relevant factors
to be considered. Thus, running to house, fetching a tabli and
assaulting the deceased are by no means a matter of course.
These acts bear stamp of a design to kill and take the case out
of the purview of private defence. Similar view was expressed
by this Court in Biran Singh v. State of Bihar (AIR 1975 SC
87) and recently in Sekar @Raja Sekharan v. State
represented by Inspector of Police, Tamil Nadu (2002 (7)
Supreme 124).
The High Court has, therefore, rightly rejected the plea
relating to exercise of right of private defence.
15. Coming to the question of sentence we find that 8 years
sentence has been awarded for the offence punishable under
Section 304 Part II. The incident is of the year 1990.
Considering this fact and the background in which the
occurrence took place, custodial sentence of 6 years would
meet the ends of justice.
16. So far as appellant no.3 is concerned, the conviction is in
terms of Section 323 read with Section 149 and the sentence
is 6 months. It appears from the record that he has already
suffered custody of nearly 5 months. Keeping this in view the
sentence is reduced to the period already undergone.
17. The appeal is allowed to the aforesaid extent.