Indian penal code: Private defence

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Indian penal code: Private defence

  1. 1. Indian Penal Code Arun v. State of Maharashtra, 2009 Vol II, Cr.L.J., 2065 (S.C.) Supervised by: Compiled by: Dr. Pushpinder Kaur Rittika Dattana Session: 2012-13 B.com LL.B (Hons.) 5th Semester Roll no.-145/11 [1]
  2. 2. Acknowledgement This project has been made for the purpose of covering a part of the syllabus of the Indian Penal Code as prescribed by Panjab University. I hereby, acknowledge my mentor, Dr. Pushpinder Kaur, for her expert guidance and views in each and every aspect. Without her help, making of this project would never have been possible. Compiled by: Rittika Dattana B.com LL.B (hons.) Roll no-145/11 [2]
  3. 3. Contents S.No. Particulars Pages 1. Table of Cases 4 2. Procedural History 5 3. Facts and Circumstances 4. Supreme Court Proceedings 10-15 5. Gudda @ Dwarikendra vs State, 2013 16-18 6-9 6. Darshan Singh Vs State Of Punjab &Anr., 2010 7. Conclusion 22 8. Bibliography 23 [3] 19-21
  4. 4. Table of Cases Salim Zia v. State of U.P. (AIR 1979 SC 391) Jai Dev v. State of Punjab (AIR 1963 SC 612) Butta Singh v. State of Bihar (AIR 1991 SC 1316) James Martin v. State of Kerala (2004 (2) SCC 203), Gudda @ Dwarikendra vs State Of M.P.,(2013 SCC 1566-1567) Darshan Singh Vs State Of Punjab & Anr.(2002 SCC 1057) [4]
  5. 5. Procedural History The case is the appeal in the Supreme Court of India to challenge the judgment of a Division Bench of the Bombay High Court, Aurangabad Bench for the conviction of the appellant for offence punishable under Sections302, 324, 342 and 454 of Indian Penal Code, 1860 (referred as ‘IPC’). Different punishments under different sections were provided to him as follows: Section 302: sentence of imprisonment for life and a fine of Rs. 500/with default stipulation. Section 324: sentence to undergo rigorous imprisonment for a period of one year and a fine of Rs. 250/-. Section342: sentence to undergo RI for three months and a fine of Rs. 100/- with default stipulation. Section 454: sentence to suffer RI for a period of one year and to pay a fine of Rs. 250/- with default stipulation. The other two co-accused were also acquitted by the trial court of all the charges. The appeals had been filed both by the appellant and the State and the State’s appeal was directed was against the acquittal of accused Nos. 2 and 3 and the same was dismissed at the admission stage. Therefore the said case was firstly appealed in the high Court against the decision of the trial court and when the High Court dismissed the appeal, the appeal was made in the Supreme Court. [5]
  6. 6. Facts Appellant Arun and the deceased Sampatro Gopal Khanderkar were real brothers with two more brothers named Haribhau and Indakar. The deceased and the brothers were separate in residence and a partition had came into effect between the brothers, which had resulted a dispute among the deceased and two of the brothers, the present appellant Arun and Indakar since the terms were not acceptable to the brothers of the deceased. Sampatrao and wife Mangalabai had filed Regular Suit No.285 of 1996 in the Court of the Civil Judge, Junior Division at Kaij for a declaration of title and injunction in respect of five lands which were the suit property in that suit. The suit was filed against two brothers i.e. the present appellant and Indakar as well as some other members of their family. In the suit, the deceased and his wife filed an application for grant of interim injunction, on 31st October 1996, and the interim injunction application was allowed by the Civil Judge, Junior Division, Kaij 4th November, 1996. Even after the grant of injunction, the disputes remained, because the cotton crops were allegedly stolen by accused No.1 Arun, acquitted accused No.3 Indakar and their family members and in this regard a police complaint was filed by Mangalabai, wife of deceased against the present appellant and Indrakar and their family members. She had prayed for strict police action against the persons named in the complaint. All these facts were relevant to show that the relations between family of deceased Sampatrao and the families of his two real brothers were strained and inimical. [6]
  7. 7. The incident in question took place on 22nd December, 1996.Prior to the incident, the deceased had engaged a laborer named Bhanu Anna Khose for three months to work in his fields and a naukarnama had also been executed regarding the same. The agreement was to come in effect from 21st December, 1996 and regarding the same they had decided to meet at village Neknoor and then leave for village Kolhewadi together. On the morning of 22nd December, 1996, the deceased took Bhairu to his fields and then to the school of whom he was the founder. They both went to the office in the school and were sitting when the accused no.1 and the present appellant Arun came and latched the door of the office from outside. Arun was one of the peons of the said school and warned Bhanu from the window to leave the office if he wanted to save his life. Taking the bold stand, Sampatrao refused on Bhairu’s behalf and locked the door of the office from inside, shutting Arun outside. Arun then climbed the roof of the office which was a tin sheet and bend the tin. Through the opening created by him, he jumped in the office and threw chilly powder in the eyes of the deceased Sampatrao and then picked up an iron hammer and with the help of the hammer and a brick which had been stored in the room with other bricks, he hit Sampatrao pressing his neck and giving him eight blows on his head. Bhairu was asked not to interfere between the brothers and was caught hold by Accused no. 2 from the window. Arun was carrying a wire in his waist which he used to beat Sampatrao and also hit Bhairu with a brick. Bhairu acted to be dead, but however, Arun asked him to shift the table to place below the opening in the shed and made Bhairu [7]
  8. 8. keep a chair on the table and he and Bhairu both came out of the office through the damaged tin. The accused nos. 1 to 3 left the place and Bhairu went in for lodging a complaint in the Police Station. The complaint was registered under CR. No.257 of 1996, for offences punishable under Sections 302, 342 read with Section 34 IPC. Bhairu’s blood stained clothes were seized under Panchnama and he was referred to the government Hospital for medical treatment. Investigation was taken up, pictures were clicked of the place of the incident, articles were seized and a panchnama was made accordingly. On the very same day, Arun was arrested and his blood stained clothes were also taken into custody under panchnama and he was also referred to the hospital due to injuries on his person. The medical certificates of both Bhairu and Arun stated that they received simple injuries caused by hard and blunt substance. The charge sheet was filed and the trial took place. A total of about 19 witnesses were examined and two students were held to be eye witnesses of the incident who were staying in the hostel of the school. The trial Court found the evidence against the accused to be clear, credible and cogent and recorded the conviction so far as the present appellant is concerned. The appeal put forward to the High Court proclaimed that the appellant had gone unarmed and alone to the school to persuade the deceased to put an end to the argument but the deceased instead to resolving the dispute, abused him and pushed him outside and insulted him. When he saw that the appellant was not going outside, the [8]
  9. 9. deceased picked up a hammer and gave two or more blows on the head of the appellant and when the appellant was in a state of reason to belief that he would be killed, then in order to save himself, he might have injured the deceased. It was also stated in the appeal that the stand of throwing of chilly powder was false and the chilly powder was subsequently planted at the scene of the offence. The State’s stand was that the view of the accepted position of the accused regarding his presence and role was duly described by the eye witness and therefore there is no scope for interference with the well judgment of the trial court. The high Court had accepted the stand and dismissed the appeal. [9]
  10. 10. Supreme Court Proceedings Learned Counsel for the appellant: In support of the appeal, learned counsel for the appellant submitted that there was an earlier FIR which was suppressed and after deliberation report was lodged which was treated as a FIR. It was the deceased who was the aggressor and the appellant was exercising his right of private defence. According to him, the deceased gave four blows on his head and, therefore, the judgment of the High Court is clearly unsustainable and unacceptable. Learned Counsel for the respondent State: In response, learned counsel for the respondent-State submitted that the FIR was promptly lodged. The injuries stated to have been sustained by the accused are simple in nature with no threat to life. The evidences given by the eye witnesses are clear, cogent and credible and, therefore, there is no scope for any interference. [10]
  11. 11. Question under consideration by the division bench: The question which was needed to be considered was the alleged exercise of the right to private defence. Stress had been laid down on the exception of private defence mentioned in Section 96 of IPC which says that “nothing is an offence which is done in the exercise of private defence.” Various questions were to be considered, like whether the legitimate exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case or; whether the number of injuries justifies the use of this defence or; whether the right to private defence has to be proved beyond reasonable doubt or not; on whom is burden of proof to justify the use of private defence can in the absence of proof, whether it is possible for the Court to presume the truth of the plea of the self-defence; whether the situation has to be judged through a subjective point of view or through a microscopic point of view; Held The Supreme Court division bench consisting of Justice Dr. Arijit Prasad and Justice Asok Kumar Ganguly explained the exercise of right of private defence under the consideration of the above questions and after considering all the facts and circumstances of the case, held that the appeal of the appellant for the acceptance of the right to private defence to be dismissed. Explaining when can the right to private defence be exercised , the Court said that it is not necessary for the accused taking the plea of the right of private defence to necessary call for evidence, provided he can establish his plea by reference to circumstances indicated in the prosecution evidence itself. Quoted observation in Salim Zia v. State of U.P. (AIR 1979 SC 391) was a 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” Referring to fact that whether the number of injuries is enough to justify the act in favour of private defence, the SC held that the number of injuries is not always a safe criterion for determining who the culprit was since it cannot be accepted as a universal rule that a presumption should be taken that the number of injuries on the accused person is due to the [11]
  12. 12. exercise of private defence. The defence has to establish that the injuries so caused were due to the exercise of right to private defence. In the situation where the accused is not able to explain the nature of the injuries, it is given a serious consideration and contrary to it, if the prosecution is unable to explain the injuries caused to the accused, then that may or may not affect the prosecution process. This principle is mainly taken into account when the injuries attained by the accused are minor, superficial or exaggerated or where the evidence is so clear and cogent that it outweighs the effect of the omission on the part of the prosecution to explain the injuries. It has been stated in this case that 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. As to the fact whether the accused has to prove the existence of the right beyond reasonable doubt, the court held that it was not necessary. Merely able to prove that the probabilities were such where there was immediate threat to person or property was enough to prove existence of such right. Explaining the essentials for claiming this defence, the division bench referring to Sections 96 to 106 of IPC held that: “To claim a right of private defence extending to voluntary causing of death, the accused must show 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.” Therefore, it was concluded that the right commences, as soon as a reasonable apprehension of danger to the property or person arises from an attempt, or threat, to commit the offence, whether or not the offence has been completed and the right lasts as long as the reasonable apprehension to the body continues. Referring to the judgment given in Jai Dev v. State of Punjab (AIR 1963 SC 612), it was observed that as soon as the cause of reasonable apprehension disappears and the threat no longer exists, there can be no occasion to exercise such right of private defence. Therefore, it was concluded that in order to evaluate whether the right to private defence will be available or not, the following factors have to be considered, namely, the injuries received by the accused; [12]
  13. 13. the imminence of threat to his safety; the injuries caused by the accused; and the circumstances whether the accused had the time to recourse to public authorities. Considering the question whether the facts have to be viewed with a narrow perspective or a with a broad one, the SC relying on the decision of Butta Singh v. State of Bihar (AIR 1991 SC 1316) that since in moments of excitement and disturbed mental equilibrium it is often difficult to expect the parties to preserve composure and use exactly only so much force which is necessary as compared with the danger apprehended to him where assault is imminent by use of force, it would be lawful to repel the force in self-defence and the right of private-defence commences, as soon as the threat becomes so imminent. SC in the above case held that “Such situations have to be pragmatically viewed and not with high-powered spectacles or microscopes to detect slight or even marginal overstepping. Due weightage has to be given to, and hyper technical approach has to be avoided in considering what happens on the spur of the moment on the spot and keeping in view normal human reaction and conduct, where self-preservation is the paramount consideration. But, if the fact situation shows that in the guise of self- preservation, what really has been done is to assault the original aggressor, even after the cause of reasonable apprehension has disappeared, the plea of right of private-defence can legitimately be negatived. The Court dealing with the plea has to weigh the material to conclude whether the plea is acceptable. It is essentially, as noted above, a finding of fact.” In the instant case, when the factual scenario was examined in the background of the principles set out in James Martin v. State of Kerala (2004 (2) SCC 203), the inevitable conclusion was that the appeal was without merit and hence was dismissed. Gudda @ Dwarikendra vs State Of M.P., SC CRIMINAL APPEAL NOS. 1566-1567 OF 2013 (Arising out of S.L.P.(Crl.) Nos.1195-1196 of 2012) The facts of the case are that the accused (also the appellant), Gudda on being suspicious about his wife’s illicit relation with the deceased Sunil Gupta, called him with his family for lunch at his home which he had taken on rent. His intentions were to murder the deceased Sunil Gupta on the very day when Sunil would come to his house for lunch. So on 27th May, 2007, when the deceased Sunil Gupta came with his pregnant wife and son to the [13]
  14. 14. appellant’s home, the appellant brutally murdered Sunil with a katar (a sharp edged weapon). In fear of being caught and charged for murder, the appellant very brutally murdered the pregnant wife of the deceased and also his small son and ran from his rented house on his bike. The accused on denying the above facts told that when he returned from his office, he heard his wife crying for help from inside the house, whereas the deceased’s wife and son were sitting on the terrace outside the house and when he went inside, he saw that the deceased Sunil was trying to rape his wife and in order to save his wife’s sanctity, he stopped Sunil and when Sunil attacked him back, he had no other option other than killing him to save their own lives. Referring to the murder of the deceased’s wife and child, he said that when he attacked the deceases, the deceased’s wife and son came to rescue him and in that process they got hurt but not due to his own intentions. The trial court after considering all the facts and circumstances of the case and all the witnesses and details in FIR, came to the conclusion that the accuser’s statement was false and was made in order to fool the legal system and he had murdered the family brutally on the suspicion that the deceased Sunil Gupta and his own wife had some illicit relationship. The trial held that it would be so, the deceased would have never dared to enter the accuser’s house and therefore the accused will be guilty under 302 of IPC and since it was one of the “rarest of the rare cases”, the accused will be given death penalty and no punishment will be given to the wife of the accuser. The appellant and the State both filed their petitions in the High Court, the appellant for dismissing the death penalty and for accepting the defence of private defence and the State for proving the wife a partner in the crime. The High Court rejected the pleas and said that the trial court had not committed any error while deciding for the case. The appeal was then made by the appellant to Supreme Court, where SC looked in the matter considering it to be as two major issues, namely, conviction and sentencing. The conviction part was to judge whether the appellant will be given the right of private defence and the Court held that the circumstances and witnesses, all uphold that the appellant had conspired for murdering the deceased Sunil Gupta and hence the right to private defence cannot be granted to him and he shall be guilty for the murder of the deceased Sunil Gupta and his family and the court agree to the decision of the earlier Courts for not accepting the plea for private defence. Referring to the sentencing of death penalty to the appellant, the SC held that though the appellant has been accused for murdering three people in the family, still his act can neither be considered brutal and nor as one of the rarest of the rare cases. [14]
  15. 15. It was observed that he planned murdered the deceased Sunil Gupta due to suspicion but he murdered his wife and son without any planning just to ensure that he doesn’t get caught in the justice system and therefore his act cannot be called brutal. Also, the court was of the view that since the appellant had no criminal history before and was of a young age and was not regarded as a social evil, the chances of him to turn out a better individual were there and therefore his future possibilities of reform cannot be ruled out. Therefore, the Court held that the punishment provided by the trial Court and the High Court was misappropriate to the offence committed by the appellant and therefore dismissed the capital punishment and imposed the sentence of life imprisonment on the accused. Darshan Singh Vs State Of Punjab & Anr. SC CRIMINAL APPEAL NO. 1057 of 2002 The case was that the deceased Gurcharan Singh, brother of Bakhtawar Singh and uncle of Darshan Singh had a dispute over partition of the land attached to the well and due this dispute, one day during a fight between Gurcharan Singh and Bakhtawar Singh, Gurcharan Singh died due to attacks by the gandasa of Bakhtawar Singh and gunshots from Darshan Singh. As per the complainant, Gurdish Singh, son of the deceased, the fight was initiated by Bakhtawar Singh and as per the accused Bakhtawar Singh and Darshan Singh, the attack was initiated by the deceased and in the process of exercising self defence, the accused had no other option than to kill the deceased. The trial court after considering the statements given by both the parties, and judging all the evidences, came to the conclusion that the case was in favour of the defendants and the prosecution was not able to prove the defendant’s guilt beyond any reasonable doubt and hence benefit of private defence would be given to the defendants. The High Court referring to the appeal of the complainants, reversed the decision of the trial Court without giving any cogent reasons just on the basis that the accused Darshan Singh was not able to explain the use of the remaining shots. The Supreme Court stating the High Court’s decision as erroneous and not justified, allowed the appeal for private defence to the appellants, setting aside the High Court’s decision. The Court here observed that the trial Court had laid emphasis on all the important aspects of the case and the decision of the trial Court was appreciating. [15]
  16. 16. The words in the praise of the decision of the trial court were, “In the instant case after marshalling and scrutinizing the entire prosecution evidence, we are clearly of the view that the trial court's view is not only the possible or plausible view but it is based on the correct analysis and evaluation of the entire evidence on record. Rationally speaking, no other view is legally possible.” Explaining the concept of private defence with reference to one of the landmark judgments, Butta Singh v. State of Bihar (supra), the Court in the present case gave some essentials which are to be considered while accepting the exercise of private defence, which are as follows: (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation. A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised. The right of private defence commences as soon as a reasonable apprehension arises and it is co- terminus with the duration of such apprehension. It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property. It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record. The accused need not prove the existence of the right of private defence beyond reasonable doubt. The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence. A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened. [16]
  17. 17. [17]
  18. 18. Conclusion Taking into consideration the various aspects in which the exercise of right to private defence can be exercised, I believe that the Supreme Court in all the three cases has acted justifiably and has taken into consideration all the relevant facts which were necessary for evaluating the pros and cons of the case. So, it can be observed through the previous cases that the right to private defence can be exceeded to causing even death of a person and such can be exercised only in the case where there is imminent threat to the life of the person and in the situations where the imminent threat to life is not present, the right to private defence does not exist. The Courts have to study the aspects relating to this defence very accurately since these days, this right is one of most misused rights and on the other side, the Courts cannot be too strict with the rules and regulations regarding the defence, because that would be against the natural justice system since at the moment of threat to a person, the person loses the capability to think and observe the situation before reacting to it and that moment of spur can exceeds his own limit without knowing the circumstances. So the conclusion we reach is that, the right to private defence is a defence which legally grants a person to do an activity in order to safeguard his person or property from a moment of imminent threat. Sections 96 to 106 of the IPC deals with the concept of private defence. [18]
  19. 19. Bibliography Websites: http://indiankanoon.org/doc/1454458/ http://www.indiankanoon.org/doc/1748156/ http://www.advocatekhoj.com/library/judgments/index.php?go= 2010/january/58.php http://medind.nic.in/jal/t13/i2/jalt13i2p160.pdf http://advocatebharatchugh.wordpress.com/ https://sites.google.com/site/hsinghjudgementscom/home/theright-of-private-defence [19]

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