Gujarat High Court Case Information System
Print
CR.A/142219/1986 5/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 1422 of 1986
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
==========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
==========================================
STATE
OF GUJARAT
Versus
BALABHAI
NARSINHBHAI
==========================================Appearance
:
MR MG NANAVATI,
ADDL PUBLIC PROSECUTOR for the Appellant
MR RS
PANJWANI for the Opponent
==========================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 11/07/2008
ORAL
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
State
of Gujarat has preferred the present appeal against the judgment and
order dated 16.09.1986 passed by the Additional Sessions Judge,
Baroda in Sessions Case No. 88 of 1986 acquitting the respondent
accused for the offence punishable under Section 302 of the Indian
Penal Code.
We
have heard Mr. Maulik Nanavati, learned Additional Public Prosecutor
and with his assistance have gone through the record of the case.
The
Trial Court accepted the plea of self-defence set up by the accused
and acquitted him. A perusal of the cross-examination of Vechlabhai
Daman (PW-9) and Bhanka Shankar (PW-10), who witnessed the incident,
clearly shows that the accused had put forth the following pleas of
self-defence: that deceased Kalu Shankar had come to his house with
an axe, that there was an altercation between him and the deceased,
that deceased Kalu Shankar had abused him and threatened to kill him
in case he did not repay the amount of Rs. 600, that the deceased
then chased him inside his house slashing the axe towards him and
that when he was pushed to the wall and had no possibility of
escaping he picked up the gun hanging on the wall and asked deceased
to stop, that the deceased did not stop and as he was about to hit
him with the axe that he fired from his gun.
It
is now well settled that the onus is on the accused to establish that
his action was in exercise of the right of private defence. The plea
can be established either by letting in defence evidence or from the
prosecution evidence itself, but cannot be based on speculation or
mere surmises. The accused need not take the plea explicitly. He can
succeed in his plea if he is able
to bring out from the evidence of the prosecution witnesses or other
evidence that the apparent criminal act was committed by him in
exercise of his right of private defence. He should make out
circumstances that would have reasonably caused an apprehension in
his mind that he would suffer death or grievous hurt if he does not
exercise his right of private defence. There is a clear distinction
between the nature of burden that is cast on an accused under Section
105 of the Evidence Act (read with Sections 96 to 106 of the Penal
Code) to establish a plea of private defence and the burden that is
cast on the prosecution under Section 101 of the Evidence Act to
prove its case. The burden on the accused is not as onerous as that
which lies on the prosecution. While the prosecution is required to
prove its case beyond a reasonable doubt, the accused can discharge
his onus by establishing a preponderance of probability (vide Partap
v. State of U.P (1976) 2 SCC 798, Salim Zia v. State
of U.P.(1979) 2 SCC 648 and Mohinder Pal Jolly v. State
of Punjab (1979) 3 SCC 30.
In
Sekar v. State (2002) 8 SCC 354 this Court observed:
(SCC p.355)
?SA 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
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. 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 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 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.?? (emphasis supplied)
The
above legal position was reiterated in Rizan v. State of
Chhattisgarh (2003) 2 SCC 661. After an exhaustive reference to
several decisions of this Court, this Court summarised the nature of
plea of private defence required to be put forth and the degree of
proof in support of it, thus: (SCC pp. 670-71, para 13)
?SUnder Section 105 of
the 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. When 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 in favour of
that plea on the basis of the material on record. ?
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.??
(emphasis supplied)
We
have examined the evidence, keeping in view, the said principles.
Vechla Daman (PW-9) and Bhanka Shankar (PW-10) are independent
witnesses who were present at the time when the accused allegedly
shot the deceased and are stated to have witnessed the incident.
Vachla Daman (PW-9), in his examination-in-chief has stated that
while he alongwith Bhanka Shankar and Narsing were at the house of
accused, deceased Kalu Shankar had come there demanding money from
the accused. An altercation had taken place between the accused and
the deceased and they had separated the two from quarreling further.
Thereafter, the accused had fired two shots at the deceased. In his
cross-examination he has stated that after they separated the accused
and the deceased from quarreling, the deceased again hurled abuses at
the accused and ran after him slashing the axe with an intention to
kill the accused. The accused ran into his house and when he was
pushed to the wall and could not escape, he picked up the gun hanging
on the wall and pointing it towards the deceased asked him to stop
there. The deceased did not stop and instead lifted the axe to hit
the accused. At that point of time, the accused fired at the
deceased.
Similarly,
Bhanka Shankar (PW-10) has stated that the deceased had come to the
house of the accused demanding money, that he was armed with an axe,
that there was exchange of words between the deceased and accused,
that the deceased threatened to kill the accused and chased him
waving the axe and when the deceased was about to give a blow to the
accused, the accused picked up the gun and fired at the deceased.
The
above evidence clearly and completely corroborates and supports the
case of self-defence put forth by the accused. What is significant
is that both these witnesses were not subjected to any re-examination
on this aspect nor were they sought to be declared hostile. In fact,
the manner in which both of them have given evidence in the
examination-in-chief and in the cross-examination shows that they
were not partisan witness and were giving evidence in a natural
manner.
The
Trial Court has rightly appreciated the said evidence of these
witnesses and accepted the plea of self-defence put forth by the
accused.
An
attempt was made on behalf of the prosecution that the trial court
ought to have the rejected the plea of self-defence on the ground
that the accused did not state in his statement under Section 313
CrPC that he had fired at Kalu Shankar in self-defence. Obviously, an
accused cannot be expected to admit that he had inflicted the blow
that killed the deceased. Where the plea of the accused, when read
with the evidence of the eyewitnesses, brings out a set of facts and
circumstances showing that the accused acted in exercise of the right
of private defence, the fact that the accused in his Section 313 CrPC
statement did not admit that he hit back the deceased, is not a
ground to reject the plea of private defence.
For
the foregoing reasons, we find that the Trial Court has rightly
acquitted the accused. The reasons given by the Trial Judge are
correct and based on proper appreciation of evidence. The same does
not call for any interference. The appeal is, therefore, dismissed.
Bail bond stands cancelled.
(BHAGWATI
PRASAD, J.)
(S.R.BRAHMBHATT,
J.)
omkar
Top