{"id":126691,"date":"2004-11-18T00:00:00","date_gmt":"2004-11-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-madhya-pradesh-vs-ramesh-on-18-november-2004"},"modified":"2018-06-16T17:09:17","modified_gmt":"2018-06-16T11:39:17","slug":"state-of-madhya-pradesh-vs-ramesh-on-18-november-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-madhya-pradesh-vs-ramesh-on-18-november-2004","title":{"rendered":"State Of Madhya Pradesh vs Ramesh on 18 November, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Madhya Pradesh vs Ramesh on 18 November, 2004<\/div>\n
Author: A Pasayat<\/div>\n
Bench: Arijit Pasayat, C.K. Thakker<\/div>\n
           CASE NO.:\nAppeal (crl.)  1023 of 1999\n\nPETITIONER:\nState of Madhya Pradesh\n\nRESPONDENT:\nRamesh\n\nDATE OF JUDGMENT: 18\/11\/2004\n\nBENCH:\nARIJIT PASAYAT & C.K. THAKKER\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
ARIJIT PASAYAT, J.\n<\/p>\n
\tState of Madhya Pradesh calls in question legality of the
\njudgment rendered by the Division Bench of the Madhya Pradesh High
\nCourt.  The respondent faced trial for alleged commission of offences
\npunishable under Sections 302 and 338 of the Indian Penal Code, 1860
\n(in short the ‘IPC’).  Originally his father Ram Kirpal, brother Rakesh
\nand mother Nonibai also faced trial with him.  They were acquitted by
\nthe trial Court, while respondent was convicted for causing the
\nhomicidal death of one Rajendra (hereinafter referred to as the
\n‘deceased’) by gun shot on 20.5.1986.  He was sentenced to life
\nimprisonment for the offence relatable to Section 302 IPC. He was also
\nconvicted in terms of  Section 338 IPC for causing grievous injury to
\nKrishna (PW-6) who was injured by the same bullet which after passing
\nthrough the body of deceased Rajendra struck Krishan and caused
\ngrievous injury to him.  For this offence he was sentenced to undergo
\nRI for one year and fine of Rs.1000\/- with default stipulation.\n<\/p>\n
\tProsecution version in nutshell is as follows:\n<\/p>\n
\tOn 20.5.1986 deceased Rajendra and Kuldeep (PW 1) were returning
\nafter their examination.  They were passing in front of the house of
\nRam Kripal (acquitted accused) who was a municipal counciler those
\ndays.  Ram Kirpal knowing that these boys were friendly with Dinesh
\n(PW-2), who was a press reporter of that area, advised them to abjure
\ncompany of Dinesh.  Finding them non-responsive Ram Kirpal, his two
\nsons Ramesh and Rakesh and his wife Nonibai started pelting stones on
\ndeceased Rajendra and Kuldeep (PW 1).  Thereafter, Ram Kirpal asked his
\nson Ramesh to get his gun from the house.  Ram Kirpal asked Ramesh to
\nshoot these boys, Ramesh then brought out a 12 bore gun and fired a
\nshot at deceased Rajendra from a distance of about 5 paces.  At that
\ntime Dinesh (PW 2) reached there while the shot was fired.  This shot
\nstruck Rajendra in the left iliac crest passing through the stomach
\nregion and damaged various internal organs.  It emerged from the right
\nside of the body and struck Krishna ( PW 6) who also happened to reach
\nby that time.  The bullet struck him in the left arm and passed through
\nfleshy portion and then struck the back region and got embeded on the
\nspinal cord, ultimately resulting in paralysis.  Rajendra died at the
\nspot.\n<\/p>\n
\tThe prosecution case based on the testimony of Kuldeep (PW-1),
\nKrishna (PW-6), Dinesh (PW-2), Sureshwar Pandey, ASI (PW-8), who also
\nhappened to be present there and had witnessed the incident.  Further
\nreliance was placed  on the medical report of autopsy surgeon and
\nmedical opinion regarding injuries of Krishna.  Medical report showed
\nthat deceased Rajendra had been struck with the gun shot which entered
\ninto left iliac crest and emerged in the right side and injured some
\nvital organs such as Kidney, Spleen and Liver.  The FIR was lodged by
\nKuldeep (PW-1) on the same day within 10 minutes after this incident.\n<\/p>\n
\tThe accused’s case was that Rajendra had approached Ram Kirpal in
\nhis capacity as Municipal Councillor to obtain his residential
\ncertificate.  He had gone with the other boy.  Ram Kirpal knew that
\nRajendra was in fact resident of Uttar Pradesh and not resident of
\nChhatarpur, so he declined.  This resulted in exchange of hot words.
\nRajendra had been persuaded by Dinesh (PW 2)  who was a press reporter
\nand whose writings were used to be against Ram Kirpal in respect of
\ndevelopments of various areas of municipality.  Dinesh
\n(PW 2) had also tried to put his influence on Ram Kirpal for issuing
\ncertificate to Rajendra but Ram Kirpal did not oblige.  He was attacked
\nby these boys and he suffered 5 injuries.  He was medically examined
\nnext day after the incident and 5 injuries caused by blunt object were
\nfound on his person.  So his case was that since he was attacked by
\nthese boys, he called for help from his sons.  Ramesh brought out a gun
\nand that gave rise to the firing.\n<\/p>\n
\tThe story of the first attack on Ram Kirpal did not find favour
\nwith the trial Court and the story of the prosecution was accepted,
\nalthough presence of Sureshwar Pandey was not accepted by the trial
\nCourt and his testimony was found to be false. But the trial Court held
\nthat the firing  was deliberate and, therefore, the finding of guilt
\nunder Section 302 was returned regarding death of Rajendra.
\nCo- accused persons were however acquitted.\n<\/p>\n
Accused filed appeal before the High Court and contended that it
\nwas clearly a case where right of self defence was available.  Even if
\nit is held that while acting for protecting the private defence of his
\nfather he had exceeded limit, Section 302 IPC would not be attracted.
\nIt was pleaded that while Ram Kirpal and his family were at their home
\ndeceased and Kuldip (PW-1) were returning after examination. In the
\nordinary course of conduct Ram Kripal would not have  advised them to
\nkeep away from PW 2.\n<\/p>\n
There was no reason for him and his family members to start pelting
\nstones.  If such incident would have happened, there certainly was
\npossibility of reaction from the side of the deceased and his friends
\nthat has not been disclosed.  The story of pelting stones has been
\ndisbelieved by the trial Court. Five injuries which were there on the
\nbody were not explained by the prosecution.  On the other hand, the
\nplea of defence is more acceptable.  The deceased was attacked and
\ncertainly he became violent and attacked accused-respondent Ramesh and
\ncaused injuries and Ramesh emerged from his house.  Ramesh was acting
\nin self defence of his father.\n<\/p>\n
\tProsecutions’ stand was that it is clearly a case of deliberate
\nkilling and there was no basis for inferring any right of self defence.
\nThe trial Court accepted the plea of self defence and altered the
\nconviction to Section 304 Part I IPC and awarded custodial sentence of
\n12 years.  Such alteration is subject matter of challenge in this
\nappeal.\n<\/p>\n
\tIn support of the appeal, learned counsel for the State submitted
\nthat the approach of the High Court is clearly erroneous. The
\nconclusions are based on surmises, conjectures and guess work.  Clear
\nand cogent evidence has been lightly brushed aside and acting on
\npresumption and surmises and guess work, it has been held that the
\naccused was acting in self defence.  The High Court was not itself
\nclear whether it is a case of grave and sudden provocation to be
\ncovered by Exception I or exceeding of limit of right of self defence
\nin terms of Exception II of Section 300.\n<\/p>\n
\tIn response, learned counsel for the respondent submitted that
\nthe High Court has analysed the evidence in detail and come to a
\ndefinite finding that the right of private defence was available to the
\naccused though he had exceeded the same.  In view of the matter no
\ninterference is called for.\n<\/p>\n
Only question which needs to be considered, is the alleged
\nexercise of right of private defence. Section 96, IPC provides that
\nnothing is an offence which is done in the exercise of the right of
\nprivate defence. The Section does not define the expression ‘right of
\nprivate defence’. It merely indicates that nothing is an offence which
\nis done in the exercise of such right. Whether in a particular set of
\ncircumstances, a person legitimately acted in the exercise of the right
\nof private defence is a question of fact to be determined on the facts
\nand circumstances of each case.  No test in the abstract for
\ndetermining such a question can be laid down.  In determining this
\nquestion of fact, the Court must consider all the surrounding
\ncircumstances.  It is not necessary for the accused to plead in so many
\nwords that he acted in self-defence. If the circumstances show that the
\nright of private defence was legitimately exercised, it is open to the
\nCourt to consider such a plea.  In a given case the Court can consider
\nit even if the accused has not taken it, if the same is available to be
\nconsidered from the material on record. Under Section 105 of the Indian
\nEvidence Act, 1872 (in short ‘the Evidence Act’), the burden of proof
\nis on the accused, who sets up the plea of self-defence, and, in the
\nabsence of proof, it is not possible for the Court to presume the truth
\nof the plea of self-defence. The Court shall presume the absence of
\nsuch circumstances. It is for the accused to place necessary material
\non record either by himself adducing positive evidence or by eliciting
\nnecessary facts from the witnesses examined for the prosecution. An
\naccused taking the plea of the right of private defence is not
\nnecessarily required to call evidence; he can establish his plea by
\nreference to circumstances transpiring from the prosecution evidence
\nitself.  The question in such a case would be a question of assessing
\nthe true effect of the prosecution evidence, and not a question of the
\naccused discharging any burden.  Where the right of private defence is
\npleaded, the defence must be a reasonable and probable version
\nsatisfying the Court that the harm caused by the accused was necessary
\nfor either warding off the attack or for forestalling the further
\nreasonable apprehension from the side of the accused. The burden of
\nestablishing the plea of self-defence is on the accused and the burden
\nstands discharged by showing preponderance of probabilities in favour
\nof that plea on the basis of the material on record. (See Munshi Ram
\nand Ors. v. Delhi Administration (AIR<\/a> 1968 SC 702), State of Gujarat v.
\nBai Fatima (AIR<\/a> 1975 SC 1478), State of U.P. v. Mohd. Musheer Khan (AIR<\/a>
\n1977 SC 2226), and Mohinder Pal Jolly v. State of Punjab (AIR<\/a> 1979 SC\n<\/p>\n
577). Sections 100 to 101 define the extent of the right of private
\ndefence of body. If a person has a right of private defence of body
\nunder Section 97, that right extends under Section 100 to causing death
\nif there is reasonable apprehension that death or grievous hurt would
\nbe the consequence of the assault.  The oft quoted observation of this
\nCourt in Salim Zia v. State of U.P. (AIR<\/a> 1979 SC 391), runs as follows:\n<\/p>\n
“It is true that the burden on an accused
\nperson to establish the plea of self-defence is not
\nas onerous as the one which lies on the prosecution
\nand that, while the prosecution is required to prove
\nits case beyond reasonable doubt, the accused need
\nnot establish the plea to the hilt and may discharge
\nhis onus by establishing a mere preponderance of
\nprobabilities either by laying basis for that plea in
\nthe cross-examination of the prosecution witnesses or
\nby adducing defence evidence.”\n<\/p>\n
The accused need not prove the existence of the right of private
\ndefence beyond reasonable doubt.  It is enough for him to show as in a
\ncivil case that the preponderance of probabilities is in favour of his
\nplea.\n<\/p>\n
\tThe number of injuries is not always a safe criterion for
\ndetermining who the aggressor was.  It cannot be stated as a universal
\nrule that whenever the injuries are on the body of the accused persons,
\na presumption must necessarily be raised that the accused persons had
\ncaused injuries in exercise of the right of private defence. The
\ndefence has to further establish that the injuries so caused on the
\naccused probabilise the version of the right of private defence.  Non-
\nexplanation of the injuries sustained by the accused at about the time
\nof occurrence or in the course of altercation is a very important
\ncircumstance.  But mere non-explanation of the injuries by the
\nprosecution may not affect the prosecution case in all cases.  This
\nprinciple applies to cases where the injuries sustained by the accused
\nare minor and superficial or where the evidence is so clear and cogent,
\nso independent and disinterested, so probable, consistent and credit-
\nworthy, that it far outweighs the effect of the omission on the part of
\nthe prosecution to explain the injuries. [See Lakshmi Singh v. State of
\nBihar (AIR 1976 SC 2263)]. A plea of right of private defence cannot be
\nbased on surmises and speculation. While considering whether the right
\nof private defence is available to an accused, it is not relevant
\nwhether he may have a chance to inflict severe and mortal injury on the
\naggressor. In order to find whether the right of private defence is
\navailable to an accused, the entire incident must be examined with care
\nand viewed in its proper setting. Section 97 deals with the subject
\nmatter of right of private defence. The plea of right comprises the
\nbody or property (i) of the person exercising the right; or (ii) of any
\nother person; and the right may be exercised in the case of any offence
\nagainst the body, and in the case of offences of theft, robbery,
\nmischief or criminal trespass, and attempts at such offences in
\nrelation to property. Section 99 lays down the limits of the right of
\nprivate defence. Sections 96 and 98 give a right of private defence
\nagainst certain offences and acts. The right given under Sections 96 to
\n98 and 100 to 106 is controlled by Section 99. To claim a right of
\nprivate defence extending to voluntary causing of death, the accused
\nmust show that there were circumstances giving rise to reasonable
\ngrounds for apprehending that either death or grievous hurt would be
\ncaused to him. The burden is on the accused to show that he had a right
\nof private defence which extended to causing of death. Sections 100 and
\n101, IPC define the limit and extent of right of private defence.\n<\/p>\n
\tSections 102 and 105, IPC deal with commencement and continuance
\nof the right of private defence of body and property respectively. The
\nright commences, as soon as a reasonable apprehension of danger to the
\nbody arises from an attempt, or threat, or commit the offence, although
\nthe offence may not have been committed but not until there is that
\nreasonable apprehension.  The right lasts so long as the reasonable
\napprehension of the danger to the body continues.  In Jai Dev. v. State
\nof Punjab (AIR<\/a> 1963 SC 612), it was observed that as soon as the cause
\nfor reasonable apprehension disappears and the threat has either been
\ndestroyed or has been put to route, there can be no occasion to
\nexercise the right of private defence.\n<\/p>\n
In order to find whether right of private defence is available or
\nnot, the injuries received by the accused, the imminence of threat to
\nhis safety, the injuries caused by the accused and the circumstances
\nwhether the accused had time to have recourse to public authorities are
\nall relevant factors to be considered. Similar view was expressed by
\nthis Court in Biran Singh v. State of Bihar (AIR<\/a> 1975 SC 87). (See:
\nWassan Singh v. State of Punjab<\/a> (1996) 1 SCC 458, Sekar alias Raja
\nSekharan v. State represented by Inspector of Police, T.N. (2002 (8)
\nSCC 354).\n<\/p>\n
\tAs noted in Butta Singh v. The State of Punjab (AIR 1991 SC
\n1316), a person who is apprehending death or bodily injury cannot weigh
\nin golden scales in the spur of moment and in the heat of
\ncircumstances, the number of injuries required to disarm the assailants
\nwho were armed with weapons. In moments of excitement and disturbed
\nmental equilibrium it is often difficult to expect the parties to
\npreserve composure and use exactly only so much force in retaliation
\ncommensurate with the danger apprehended to him where assault is
\nimminent by use of force, it would be lawful to repel the force in
\nself-defence and the right of private-defence commences, as soon as the
\nthreat becomes so imminent.  Such situations have to be pragmatically
\nviewed and not with high-powered spectacles or microscopes to detect
\nslight or even marginal overstepping.  Due weightage has to be given
\nto, and hyper technical approach has to be avoided in considering what
\nhappens on the spur of the moment on the spot and keeping in view
\nnormal human reaction and conduct, where self-preservation is the
\nparamount consideration.  But, if the fact situation shows that in the
\nguise of self-preservation, what really has been done is to assault the
\noriginal aggressor, even after the cause of reasonable apprehension has
\ndisappeared, the plea of right of private-defence can legitimately be
\nnegatived.  The Court dealing with the plea has to weigh the material
\nto conclude whether the plea is acceptable. It is essentially, as noted
\nabove, a finding of fact.\n<\/p>\n
\tThe right of self-defence is a very valuable right, serving a
\nsocial purpose and should not be construed narrowly. (See Vidhya Singh
\nv. State of M.P. (AIR 1971 SC 1857).  Situations have to be judged from
\nthe subjective point of view of the accused concerned in the
\nsurrounding excitement and confusion of the moment, confronted with a
\nsituation of peril and not by any microscopic and pedantic scrutiny. In
\nadjudging the question as to whether more force than was necessary was
\nused in the prevailing circumstances on the spot it would be
\ninappropriate, as held by this Court, to adopt tests by detached
\nobjectivity which would be so natural in a Court room, or that which
\nwould seem absolutely necessary to a perfectly cool bystander. The
\nperson facing a reasonable apprehension of threat to himself cannot be
\nexpected to modulate his defence step by step with any arithmetical
\nexactitude of only that much which is required in the thinking of a man
\nin ordinary times or under normal circumstances.\n<\/p>\n
\tIn the illuminating words of Russel (Russel on Crime, 11th Edition
\nVolume I at page 49):\n<\/p>\n
“….a man is justified in resisting by force anyone
\nwho manifestly intends and endeavours by violence or
\nsurprise to commit a known felony against either his
\nperson, habitation or property. In these cases, he
\nis not obliged to retreat, and may not merely resist
\nthe attack where he stands but may indeed pursue his
\nadversary until the danger is ended and if in a
\nconflict between them he happens to kill his
\nattacker, such killing is justifiable.”\n<\/p>\n
\tThe right of private defence is essentially a defensive right
\ncircumscribed by the governing statute i.e. the IPC, available only
\nwhen the circumstances clearly justify it. It should not be allowed to
\nbe pleaded or availed as a pretext for a vindictive, aggressive or
\nretributive purpose of offence.  It is a right of defence, not of
\nretribution, expected to repel unlawful aggression and not as
\nretaliatory measure.  While providing for exercise of the right, care
\nhas been taken in IPC not to provide and has not devised a mechanism
\nwhereby an attack may be a pretence for killing. A right to defend does
\nnot include a right to launch an offensive, particularly when the need
\nto defend no longer survived.\n<\/p>\n
\tWe find that the High Court has acted on surmises and conjectures
\nto conclude certain aspects. Firstly, it has come to conclude that the
\nboys including the deceased attacked Ramesh “may be with fists, may be
\nwith some blunt weapon”. There was no evidence in this regard.  It was
\nfurther held that there was no reason for Ram Kirpal and his family
\nmembers to pelt stones.  The deceased and his friends attacked Ram
\nKirpal though weapon used by them are not known.  Reference was made to
\nthe injuries on Ram Kirpal.  It was further held that probably some
\nheat was generated either because of the advise of Ram Kirpal was not
\naccepted or because request of the boys to issue certificate was not
\naccepted by him.  Because of the heat generated between the boys and
\nRam Kirpal, the boys started hitting Ram Kripal  causing injuries. In
\nthis condition “probably” he asked his sons to  shoot the assailants
\nand Ramesh fired a gun shot resulting in fatal injury to deceased and
\ngrievous injury to Krishna.  It was further held that when there was
\nsome exchange of hot words between the deceased and his friends, on one
\nhand and Ram Kishan on the other the boys started attacking on his
\nfather and this was grave and sudden provocation to the sons.  In the
\naforesaid background it was held that when Ram Kirpal asked his sons to
\nkill. Exception I to Section 300 would be attracted.  The conclusions
\nare not based on evidence and are based on surmises, conjectures and
\nguess work. As aforesaid noted, it was first concluded that right of
\nprivate defence was exceeded.  It was further held that the case  is
\ncovered by either Exception I or Exception II to Section 300, as
\ninjuries on the accused not explained.    The findings are vague,
\nunclear and indefensible.  As noted above, for some conclusions the
\nHigh Court acted without any evidence and frequently used the
\nexpression ‘Probably’.  A new case which was not even pleaded by the
\nparties was introduced on its own by the High Court.  Undue importance
\nwas attached to some superficial injuries of very minor nature on Ram
\nKirpal.  It is trite that there are some minor or superficial injuries
\nsuffered by the accused that shall not affect a credible and cogent
\nprosecution version even if the prosecution has not explained the
\ninjuries.  The vaccilating nature of the conclusions is apparent
\nbecause the High Court was not very sure as to whether Exception I or
\nException II to Section 300 I.P.C. applied.  They operate in entirely
\ndifferent fields.  One relates to grave and sudden provocation and the
\nother to exercise of right of private defence.\n<\/p>\n
\tThe High Court was not justified, therefore, to alter the
\nconviction to Section 304 Part I IPC.  The trial Court had rightly
\nconvicted the accused in terms of Section 302 IPC.\n<\/p>\n
\tAccordingly the judgment of the High Court is set aside and that
\nof the trial Court is restored.\n<\/p>\n
\tAppeal is allowed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Madhya Pradesh vs Ramesh on 18 November, 2004 Author: A Pasayat Bench: Arijit Pasayat, C.K. Thakker CASE NO.: Appeal (crl.) 1023 of 1999 PETITIONER: State of Madhya Pradesh RESPONDENT: Ramesh DATE OF JUDGMENT: 18\/11\/2004 BENCH: ARIJIT PASAYAT & C.K. THAKKER JUDGMENT: J U D G M E N T […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-126691","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Madhya Pradesh vs Ramesh on 18 November, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-madhya-pradesh-vs-ramesh-on-18-november-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Madhya Pradesh vs Ramesh on 18 November, 2004 - 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