DINESH SINGH Vs. STATE OF U P

JUDGEMENT

(1.) Challenge in this appeal is to the judgment of the Allahabad High Court allowing the Government Appeal. In the said appeal chal lenge was to the judgment of learned Additional Sessions Judge, Karvi, directing acquittal of the respondents-the accused 1 to 10 of the charged offences relatable to Sections 147, 148, 302, 325, 323 and 149 of the Indian Penal Code, 1860 (in short the IPC). The High Court while upholding the acquittal of the rest of the accused persons found the evidence cogent and credible so far as the present appellant is concerned and directed conviction for offence punishable under Section 304, Part II, IPC.

(2.) Learned counsel for the appellant submitted that the trial court had rightly noticed that the appellant and the co-accused exercised right of private defence and, therefore, the High Court could not have held the appellant guilty. It is also submit ted that when the evidence was found inadequate for rest of the accused persons, appellant should not have been convicted.

(3.) First 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 expres sion 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 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 ques tion 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 (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 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 wit nesses 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 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 pros ecution 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 prob able 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 apprehen sion 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. vs. Delhi Administration, AIR 1968 SC 702; State of Gujarat vs. Bai Fatima, AIR 1975 SC 1478; State of U.P. V.Mohd. Musheer Khan, AIR 1977 SC 2226) and Mohinder Pal Jolly vs. 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 of quoted observation of this Court in Salim Zia vs. State of U.P., AIR 1979 SC 391, runs as follows :