Mahavir Singh vs State
2011 Latest Caselaw 290 Del

              THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment delivered on: 19.01.2011

+            CRL.A. 328/1997

MAHAVIR SINGH                                  ...        Appellant

                                      versus

STATE                                          ...      Respondent

Advocates who appeared in this case:

For the Appellant       : Mr Mohit Mathur
For the Respondent      : Ms Richa Kapoor

CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE MANMOHAN SINGH

1. Whether Reporters of local papers may be allowed to see the judgment ? Yes

2. To be referred to the Reporter or not ? Yes

3. Whether the judgment should be reported in Digest ? Yes

BADAR DURREZ AHMED, J (ORAL)

1. The appellant (Mahavir Singh) as well as his brother Jogender

Singh @ Pappu and his mother Mallo Devi were accused for having

allegedly committed the offence punishable under Sections 302/34 IPC in

respect of Virender and the offence punishable under Sections 307/34 IPC

in respect of Balbir Singh (PW-2) and Ranbir Singh (PW-3). The appellant

was also accused of having committed the offence punishable under Section

27 of the Arms Act, 1959. Insofar as Mallo Devi is concerned, she passed

away prior to the framing of charges. Jogender @ Pappu was acquitted of

all charges by the trial court. However, by virtue of the impugned judgment

and / or order dated 29.07.1997, the present appellant - Mahavir Singh has

been convicted for having committed the murder of Virender and has been

sentenced to undergo rigorous imprisonment for life. A fine of ` 5,000/-

had also been imposed on him and, in default whereof, he is to undergo

rigorous imprisonment of one month. The appellant has, however, been

acquitted of the charges under Sections 307/34 IPC and Section 27 of the

Arms Act.

2. According to the prosecution, there was enmity between Mahavir

Singh, Jogender Singh and Mallo Devi on the one side and the deceased

Virender and his family on the other. This, according to the prosecution,

was the result of an incident which took place about 8-9 months prior to the

events leading to the death of the deceased Virender on 07.12.1985. It is

alleged that, at that point of time, i.e., 8-9 months prior to 07.12.1985, PW-6

[Ram Chander- brother of deceased Virender] had taken away Mahavir's

sister, who returned after 3-4 days. However, that matter was resolved.

Despite that, the enmity between the two families remained. It is further the

case of the prosecution that on 06.12.1985, i.e., one day prior to the date of

occurrence, the accused persons had threatened the family of the deceased

that they would settle scores with the family members one by one. There

were some altercation and it is alleged that in the course of that altercation,

Jogender @ Pappu had hit the deceased's uncle Ram Kumar [PW-1] with a

brick. The parties reached the police station and the matter was

compromised. However, when they were returning from the police station,

the accused again remarked that they would not rest till they took revenge.

It is further the case of the prosecution that on the next day, i.e., on

07.12.1985, at about 12.00 noon, when Virender went to untie his buffaloes

tethered near the railing of the park, Jogender @ Pappu and Mahavir Singh

as also their mother Mallo Devi, who was standing nearby, came there and

started abusing him. It is alleged that Jogender @ Pappu and Mahavir

Singh were armed with knives and they both pounced upon Virender saying

that he would be finished on that day itself and started giving knife blows to

him. When he started to run towards his house in order to save himself, it is

alleged that Mallo Devi exhorted both her sons that Virender should be

killed on that day itself and she also ran after Virender. It is further alleged

that they caught hold of the deceased Virender and started giving him

blows. In order to save Virender, PW-3 (Ranbir Singh) and his father, PW-

2 (Balbir Singh) gave danda blows to the accused persons. However, it is

further alleged that the accused gave knife blows to them and that in their

self-defence PW-2 and PW-3 as well as Virender gave danda blows to

Mallo Devi. It is alleged that in the meantime, the uncle of the deceased

[Ram Kumar (PW-1)] also reached the spot. Virender did not survive the

injuries and succumbed to them on the spot.

3. On the other hand, it is the specific plea taken by the learned

counsel for the appellant from the very beginning that he acted in exercise

of his right of private defence and, therefore, he cannot be said to have

committed any offence. In answer to question No.21, in his statement under

Section 313 CrPC, the case of private defence is clearly set up by the

appellant in the following words:-

"Q: 21. Have you anything else to say ?

Ans: On 7.12.85 at about 11.15 A.M. I was just to go to the college and had reached near the park, I heard a noise and Ranvir, Balbir and Virender were beating my mother Mallo Devi (now expired) and my younger brother Jogender Singh. When I intervened and tried to save my mother and brother, they also started giving me hockey and danda blows and in order to save myself also, I ran towards a nearby khokha of cycle repair and picked up some iron patti and again came at the spot and waived the patti in the air and the same might have inflicted injuries to someone. As I also had received injuries and I became unconscious and gained consciousness in the hospital. I am innocent".

4. The learned counsel appearing on behalf of the appellant

submitted that insofar as Jogender @ Pappu is concerned, the trial court has

acquitted him of all the charges giving him the benefit of doubt. He further

submitted that the trial court has not returned any finding against the

appellant insofar as the alleged offence under Section 27 of the Arms Act is

concerned. That being the case, it was urged on behalf of the appellant,

how could the appellant be convicted of having committed the murder of

Virender ? It was also urged by the learned counsel for the appellant that

the alleged recovery of the murder weapon, which is said to be a knife

(Exhibit P-1), is, at best, doubtful. The learned counsel for the appellant

further stressed that the trial court in the impugned judgment has, at several

places, observed and held that the situation resembled a "free-for-all"

quarrel between the two parties. He submitted that the trial court fell in

error in holding that the appellant had exceeded his right of private defence.

According to the learned counsel for the appellant, the case of the appellant

clearly fell within the purview of the appellant's right of private defence.

5. The learned counsel for the appellant also took the alternative

plea that in case it is not so held, then, in any event, since the incident took

place in the course of a sudden fight and in the heat of the quarrel and

without the appellant taking any undue advantage or having acted in a cruel

or unusual manner, the case would be only one of culpable homicide not

amounting to murder and, therefore, instead of being convicted under

Section 302 IPC, the appellant could, at best, have been convicted under

Section 304 Part II.

6. The learned counsel for the appellant took us through the

testimonies of the witnesses as also through the impugned order.

7. The learned counsel appearing on behalf of the State supported

the reasoning adopted by the trial court and submitted that the trial court

was not in error in concluding that the plea of private defence was not

substantiated by the appellant and, in any event, the appellant Mahavir

Singh had exceeded his right of private defence. She submitted that the

appellant had been correctly convicted under Section 302 IPC for having

committed the murder of Virender.

8. Having heard the counsel for the parties and having examined

the record, we do not find ourselves to be in agreement with the view taken

by the trial court. The plea taken by the appellant of right of private defence

has been established by the appellant. We say this because on going

through the testimonies of PW-2 and PW-3, we find that both of these

witnesses have admitted that they were armed with dandas and that they had

inflicted danda blows on both Mahavir Singh and Jogender Singh as well as

their mother Mallo Devi. In the course of cross-examination, PW-3 (Ranbir

Singh) has admitted that he, Ram Kumar (PW-1) and his father [Balbir

Singh (PW-2)] had dandas in their hands. He also stated that Virender was

holding a hockey stick in his hand and that the quarrel took place for about

4-5 minutes. He admitted that he inflicted danda blows upon Jogender and

Mahavir. It is also stated by him in his cross-examination that it was correct

that after this fight, both Mahavir and Virender had fallen at the spot. He

also stated in his cross-examination that Mallo Devi had received head

injuries on account of danda blows and that she was bleeding from her head

and the blood had stained her clothes. He reiterated that Mahavir Singh had

received injuries and had fallen down on the spot and that he was removed

by the police.

9. PW-2 (Balbir Singh) also stated that he inflicted a danda blow

on the person of Mahavir Singh on his head and that another danda blow

had hit him on his mouth. Of course, he said that Jogender gave a knife

blow on his right foot. But, this fact has not been believed by the trial court.

10. From these statements, it is clear that both Jogender and Mahavir

alongwith their mother Mallo Devi were at the receiving end of the danda

blows and the blows of a hockey stick, which was in the possession of

Virender. The question that arises at this stage is as to whether Mahavir

could be said to have exercised his right of private defence.

11. This much is clear that Mallo Devi was unarmed and that she

was about 50 years of age. It is also clear from the evidence on record and

the findings of the trial court that Jogender was also apparently unarmed as

the knife which he is alleged to have been armed with was never recovered.

Insofar as the appellant Mahavir Singh is concerned, there is the allegation

on the part of the prosecution that he was armed with a knife and that the

fatal injury on Virender was inflicted by him using the said knife. However,

we find that the story of the knife in the hands of the appellant Mahavir is

not established. We say this because we find that the same knife is said to

have been recovered between 5 and 6 p.m. on the same day, i.e., on

07.12.1985, in the presence of PW-2 (Balbir Singh), PW-3(Rambir Singh)

and ASI Ram Pat. Insofar as the last of the three alleged recovery witnesses

is concerned, for reasons best known to the prosecution, he was not

produced as a witness. PW-2 (Balbir Singh) and PW-3 (Rambir Singh),

apart from being involved in the quarrel and, therefore, having the tinge of

being interested witnesses, were not in a position to witness the recovery.

This is so because PW-2 (Balbir Singh), who was injured, was in the

hospital at 5.00 p.m. as recorded in his MLC [Exhibit PW-10/B] and, as per

his own statement, which was elicited from him in his cross-examination, he

was discharged from the hospital at 9.00 p.m. This in itself belies the

statement that he was a witness to the recovery of the knife which was said

to have been effected between 5-6 p.m. Insofar as PW-3 (Rambir Singh) is

concerned, he, also, was in hospital at about 3.30 p.m. This is evident from

the MLC [Exhibit PW-10/A]. However, there is no evidence with regard to

the time of his discharge from the hospital. His presence is also doubtful

insofar as the alleged recovery of the knife is concerned.

12. We may also point out that as per the testimonies of the

prosecution witnesses themselves, which we have referred to above, danda

blows were inflicted on the appellant Mahavir and that as a result thereof he

fell on the ground. In fact, PW-2 (Balbir Singh) states categorically that

Mahavir Singh had received injuries as a consequence of danda blows on

his mouth and on his head and as a result whereof, he was bleeding from his

mouth.

13. It is apparent that as a result of the several danda blows inflicted

on the appellant Mahavir Singh, he fell on the ground and was thereafter

immediately taken to hospital. Thus, where was the occasion for the

appellant Mahavir Singh, who was badly injured, to have disposed of the

knife in the bushes from where it was later on, allegedly, recovered at the

instance of Mahavir Singh ? It is for this reason also that the recovery of

the knife [Exhibit P-1] at the instance of the appellant Mahavir Singh is in

serious doubt.

14. If this be the state of affairs, then it is clear that on the fateful

day, Mallo Devi was unarmed, so was Jogender as also the appellant

Mahavir. The situation, therefore, appears to be in consonance with what

has been set up by the appellant Mahavir Singh in his statement under

Section 313, CrPC. It is apparent that a quarrel had ensued for whatever

reasons on 07.12.1985 between Mallo Devi and Jogender on the one hand

and Virender, PW-2 (Balbir Singh) and PW-3 (Ranbir Singh) on the other.

While PW-2 and PW-3 admittedly were armed with dandas and the said

witnesses have stated that Virender was armed with a hockey stick, the other

party, namely, Mallo Devi and Jogender were unarmed. They were being

inflicted danda blows by the said Virender, Balbir and Ranbir. It is at this

stage that the appellant Mahavir entered the scene of occurrence. He first

tried to save his mother and brother from the said danda blows, but he

himself was at the receiving end of the danda blows on his head and mouth.

Therefore, left with no alternative, he took an iron patti (strip) from a cycle

repair shop which was just about 20-25 paces away and indiscriminately

started waiving the same in an attempt to dispel the attackers. While doing

so, he inflicted injuries on the deceased Virender who succumbed to those

injuries on the spot. PW-9 (Dr L.T. Ramani), in his cross-examination,

admitted that the injuries inflicted upon the deceased Virender were also

possible with an iron strip with a sharp edge. The four external injuries,

which were noted by Dr L.T. Ramani in the course of post mortem

examination were as under:-

"External Injuries:-

1. An abrasion ½" x ½" on the right side of forehead;

2. Incised stab wound 2.2 cm. x 1 cm. on the left side front of chest;

3. Incised wound 2.5 cm. X 1 cm. present just below the left nipple.

4. Small incised wound 0.5 x 0.3 cm. on the medial wall of right axilla.

15. In his opinion, Dr L.T. Ramani stated that the injury numbers 2-4

were caused by a sharp edged weapon and that injury No.1 was caused by

some blunt force and that all the injuries were ante mortem in nature. He

further stated that injury number 3 was sufficient, in the ordinary course of

nature, to cause death while there is no dispute with the post mortem report

(Exhibit PW-9/A), the defence has been able to elicit the answer from Dr

L.T. Ramani that the injuries were also possible with an iron strip with a

sharp edge and, therefore, the possibility of the injury having been caused in

the manner suggested by the appellant cannot be ruled out.

16. We may also point out the nature of the injuries which were

suffered by the appellant's mother Mallo Devi. This is apparent from the

MLC [Exhibit PW-10/C]. The injuries recorded in the said MLC are as

under:-

"Injuries:-

1. Laceration 6 cms size on right occipital region involving skin and fascia;

2. Baggy swelling left parietal region;

3. Pain tenderness left lower ribs;

4. Laceration 1 mm size c/o swelling left orbital margin;

5. Swelling just above left elbow on posterior aspect of arm."

From the testimonies of PW-2 and PW-3 themselves, it is clear that serious

injuries were also received by the appellant as well as his brother Jogender.

Of course, injuries were also received by PW-2 and PW-3.

17. Section 96 IPC stipulates that nothing is an offence which is

done in the exercise of the right of private defence. Section 97 IPC provides

that every person has a right, subject to the restrictions contained in Section

99, to, inter alia, defend his own body and the body of any other person,

against any offence affecting the body. Section 99 IPC further stipulates,

inter alia, that there is no right of private defence in cases in which there is

time to have recourse to the protection of the public authorities. It also

stipulates the extent to which the right of private defence may be exercised.

Specifically, it is provided that the right of private defence in no case

extends to the inflicting of more harm than is necessary to inflict for the

purposes of defence.

18. As per Section 100 of the IPC, the right of private defence of the

body extends, under the restrictions mentioned in Section 99, to the

voluntarily causing of death or of any other harm to the assailant, if the

offence which occasions the exercise of the right is, inter alia:-

1) "Such an assault, as may reasonably cause the apprehension that death will otherwise be the consequence of such assault";

2) "Such an assault, as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault."

19. The Supreme Court, in the case of Mohammad Khan & Others

v. The State of Madhya Pradesh: 1971 (3) SCC 683, observed as under:-

"When enacting Sections 96 to 106 of Indian Penal Code, excepting from its penal provisions, certain classes of acts, done in good faith for the purpose of repelling unlawful aggression, the legislature clearly intended to arouse and encourage the manly spirit of self-defence amongst the citizens, when faced with grave danger. The law does not require a law-abiding citizen to behave like a coward when confronted with an imminent unlawful aggression. As repeatedly observed by this Court there is nothing more degrading to the human spirit than to run away in face of danger: G.V.S. Subramanyam v. State of Andhra Pradesh: AIR 1970 SC 1079. The right of private defence is thus designed to serve a social purpose and deserves to be fostered within the prescribed limits."

20. In Yogendra Morarji v. State of Gujarat: 1980 (2) SCC 218, the

Supreme Court, while considering the question as to whether the death

caused by the accused was in exercise of his right of private defence, held:-

"13. The Code excepts from the operation of its penal clauses "large classes of acts done in good faith for the purpose of repelling unlawful aggression but this right has been regulated and circumscribed by several principles and limitations". The most salient of them concerning the defence of body are as under: firstly, there is no right of private defence against an act which is not in itself an offence under the Code; secondly, the right commences as soon as - and not before - a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is coterminous with the duration of such apprehension (Section 102). That is to say, right avails only against a danger imminent, present and real; thirdly, it is a defensive and not a punitive or retributive right. Consequently, in no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of the defence (Section 99). In other words, the injury which is inflicted by the person exercising the right should be commensurate with the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith, to weigh "with golden scales" what maximum amount of force is necessary to keep within the right. Every reasonable allowance should be made for the bona fide defender "if he with the instinct of self-preservation strong upon him, pursues his defence a little further than may be strictly necessary in the circumstances to avert the attack." It would be wholly unrealistic to expect of a person under assault, to modulate his defence step by step according to the attack; fourthly, the right extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of Section 100. For our purpose, only the first two clauses of Section 100 are relevant. The combined effect of these two clauses is that taking the life of the assailant would be justified on the plea of private defence; if the assault causes reasonable apprehension of death or grievous hurt to the person exercising the right. In other words, a person who is in imminent and reasonable danger of losing his life or limb

may in the exercise of right of self-defence inflict any harm, even extending to death on his assailant either when the assault is attempted or directly threatened. This principle is also subject to the preceding rule that the harm or death inflicted to avert the danger is not substantially disproportionate to and incommensurate with the quality and character of the perilous act or threat intended to be repelled; fifthly, there must be no safe or reasonable mode of escape by retreat, for the person confronted with an impending peril to life or of grave bodily harm, except by inflicting death on the assailant; sixthly, the right being, in essence, a defensive right, does not accrue and avail where there is "time to have recourse to the protection of the public authorities." (Section 99)."

21. In the context of the settled position in law, we are of the view

that the appellant Mahavir had caused the death of Virender in exercise of

his right of private defence. Let us now recall the scene at the time of

occurrence. When the appellant Mahavir arrives, he finds that his mother,

who is an unarmed 50-years old lady, is being inflicted danda blows and

that his brother Jogender is also unable to protect her because he is also at

the receiving end of the danda blows as well as hockey stick blows. All the

same, Mahavir attempts to save his mother and his brother, but he also

receives hits on his head from the dandas as well as the hockey sticks,

which are in the possession of PW-2 (Balbir Singh), PW-3 (Ranbir Singh)

and the deceased Virender. If he did not do anything further, the assault on

his mother and brother at the hands of Balbir Singh, Ranbir Singh and

Virender would have continued. As has been noticed above, most of the

danda blows were directed towards the head and by no stretch of

imagination, can it be said that the danda blows and the hockey stick blows

inflicted on the head of a person would not cause a reasonable apprehension

in the minds of another that death may, in all likelihood, result or, at least, in

some grievous hurt. Therefore, it is quite natural for a person, who is placed

in the position of the appellant Mahavir Singh, to do something in order to

save the life of his mother and brother. As observed in Mohammed Khan

(supra), the law does not require a law-abiding citizen to behave like a

coward when confronted with an imminent unlawful aggression. The only

thing that Mahavir Singh could lay his hands upon was an iron patti which

he picked up from the cycle repair shop which was about 20-25 paces away.

It must be remembered that the story of recovery of the knife has not been

established. In these circumstances, the case of the appellant clearly falls

within the said provisions of law and it must be said that the appellant

Mahavir inflicted the fatal injury on Virender in exercise of his right of

private defence which extended to the causing of death of Virender.

22. We must also point out that the standard of proof required when

an accused sets up a plea of private defence is different from the standard of

proof required of the prosecution in bringing home its charge of guilt.

Section 105 of the Indian Evidence Act, 1872 reads as under:-

"105. Burden of proving that case of accused comes within exceptions - When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances."

While examining the principles governing the burden of proof where the

accused sets up a plea of private defence, the Supreme Court in Yogender

Morarji (supra), observed as follows:-

"15. ... In other words, even under Section 105, the standard of proof required to establish those circumstances is that of a prudent man as laid down in Section 3, Evidence Act. But within that standard there are degrees of probability, and that is why under Section 105, the nature of burden on an accused person claiming the benefit of an Exception, is not as onerous as the general burden of proving the charge beyond reasonable doubt cast on the prosecution. The accused may discharge his burden by establishing a mere balance of probabilities in his favour with regard to the said circumstances.

16. The material before the Court to establish such a preponderance of probability in favour of the defence plea may consist of oral or documentary evidence, admissions appearing in evidence led by the prosecution or elicited from prosecution witnesses in cross- examination, presumptions and the statement of the accused recorded under Section 313 of the Code of Criminal Procedure, 1973."

A similar view is expressed in Partap v. State of Uttar Pradesh: (1976) 2

SCC 798 in the following manner:-

"14. We have carefully scrutinised the judgments of the courts below. In our opinion, their finding in regard to the plea of self-defence is clearly erroneous. They appear to have overlooked the distinction between the nature of burden that rests on an accused under Section 105, Evidence Act to establish a plea of self-defence and the one cast on the prosecution by Section 101 to prove its case. It is well settled that 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 mere preponderance of probability."

23. The appellant has been able to establish a preponderance of

probabilities in favour of the plea of private defence and this can be easily

discerned from the admissions elicited from prosecution witnesses in cross-

examination and other material on record. In our view, the trial court fell in

error in holding that although the version of the appellant was probable, he

had, however, exceeded his right of private defence. Consequently, we set

aside the impugned judgment and order on sentence insofar as the present

appellant is concerned. The appellant is acquitted of all charges. As the

appellant is on bail, his bail bond stands discharged and the surety in respect

thereof also stands discharged.

The appeal is allowed.

BADAR DURREZ AHMED, J

MANMOHAN SINGH, J JANUARY 19, 2011 dutt