HANUMANTAPPA BHIMAPPA DALAVAI & ANR versus STATE OF KARNATAKA

Challenge in this appeal is to the judgment of a Division Bench of the Karnataka High Court upholding the convictions of the appellants for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the 'IPC'). The appellant No.1 was additionally convicted for offence punishable under Section 326 IPC.

p. 290

Prosecution version in a nutshell are as follows: c The accused nos.1 to 3 - the deceased and injured belonged to Salahalli Village. There is a tea shop of the accused No.1 situated outside the village, by the side of the compound of which a public road is situated, some jail hedges have grown in the said land of accused No.1 by the other side of the road, which have over grown obstructing to some extent the public path. With regard to the inconvenience caused to the passers-by and the persons taking vehicles like tractor, the complainant - lrappa Aijappa Kuri (P.W.5) often complained to the accused No. I to cut the excess hedges, to which the accused No.1 paid no heed. On 1.2.1995, while coming home, the complainant asked the accused No.I to cut the excess growth of hedge for which the accused No.1 became angry and threatened that he would see the person who dared to cut the hedges and also abused the complainant. The next day evening, the complainant's younger brother - Mahadev (first deceased) came from Gokak and when the complainant and his family members told about the incident that had taken place on the previous day, Mahadev immediately expressed his desire to go to the accused No.1 and confront him about this. Then imniediately, he left the place followed by the complainant (P.W.5), complainant's wife - Lalithawa Kuri (P.W.18), complainant's elder brother - Basappa Sidnal (the second deceased), complainant's sister - Suit Yallawwa Dundappa Shidnal (P.W.19), complainant's brother- Siddappa Ajjappa Kuri (P.W.20), complainants sisters-in-law- Renuka Kuri (P. W. 24) and Smt. Anasuya Sidnal (P.W.26). When Mahadev A questioned the accused No. 1 about his behaviour with the complainant the previous day, the accused No. I became angry about the audacity of Mahadev in coming to his hotel about that matter and to question him; and challenging Mahadev, he went inside the hotel, brought a crow-bar and by that instrument gave B a blow on the head of Mahadev. In the meantime, the accused No.1 's son - Vittal (accused No.2) brought a stick and another son-Maruti (accused No.3) brought an iron rod saying that these people would not be allowed to go, and started assaulting them. The accused No-3 assaulted Basappa by means of an iron rod on account of which Basappa started to bleed. The accused No.1 gave a blow on the complainant's wife Lalithavva by means of the crow bar on account of which she fell down and when he attempted to give a blow by means of that crow-bar on the complainant, the complainant avoided it but the blow fell on his left hand and he sustained injury. The accused No.2 attacked P .W.18 by means of a stick. In the meantime, the people assembled and saved these persons. But, by that time Mahadev and Basappa had sustained grievous injuries. The · injured were taken to Ramadurga in the jeep of Prakash (P.W.25). The doctor at Ramadurga examined Mahadev and pronounced him dead. For further treatment, Basappa and Lalithavva were taken to Belgaum hospital where Basappa died later. In the meantime, the police had received information in Kattakol Police Station, which had jurisdiction over the area and the. Sub-Inspector of Police went to Ramadurga with a Police Constable and took the complaint, on the basis of which a case was registered and investigation was taken up. The accused were not available. They were traced on 9.2. 1995 and were arrested and were produced before the learned Magistrate. They were remanded to judicial custody. After G investigation, the Police filed a charge sheet against the accused. The accused pleaded not guilty to the charges and claimed A to be tried. The prosecution examined in all 30 witnesses out of whom PWs. 5, 18, 19,20 to 26 are eye witnesses. The accused No.1 advanced a theory of self defence contending that the injured persons and the deceased persons had come to his hotel armed with deadly weapons challenging when he ., was alone in the hotel and challenging him they attempted to assault him. He contended when he ducked to avoid a blow, it fell on the head of the person, who was holding him and in consequence that person sustained injuries and that in the meantime, he managed to snatch one of the weapons held by the assailants and in self defence, a wide hit was given by him to the assailants and thereafter he escaped from the blows. It was his contention that he was not responsible for any injuries found on the deceased and the injured.

pp. 290–292

The trial court disbelieved the plea of right of private defence and held the appellant guilty as aforestated.

p. 292

In appeal the High Court upheld the conviction rdiscarding the stand of the appellant that this was a case of right of private defence.

p. 292

In support of the appeal it was submitted that this is a case where the right of private defence is clearly applicable, and prosecution version is not believable. Learned counsel for the respondent-State on the other hand supported the judgment.

p. 292

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 expression '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 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 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 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 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 Indian 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 truth of the plea of self-defence. The Court shall presume 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 true effect of the prosecution evidence, and not a question the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable E and probable version satisfying the Court that the harm caused the accused was necessary for either warding off the attack for- forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of selfdefence is on the accused and the burden stands discharged F showing preponderance of probabilities is favour of that plea the basis of the material on record. (See Munshi Ram and Ors. v. Delhi Administration: AIR 1968 SC 702: State of Gujarat v. Bai Fatima: AIR 1975 SC 1478: State of U.P. v. Mohd. Musheer Khan: AIR 1977 SC 2226: and Mohinder Pal G Jolly v. State of Punjab: AIR 1979 SC 577). Sections 100 to 101 define the extent of the right of private defence of body. If person has a right of private defence of body under Section that right extends under Section 100 to causing death if apprehension that death or grievous hurt consequence of the assault. The oft quoted in Salim Zia v. State of U.P. (AIR 1979 follows: the burden on an accused person to of self-defence is not as onerous as the the prosecution and that, while the required to prove its case beyond the accused need not establish the plea discharge his onus by establishing a preponderance of probabilities either by laying basis cross-examination of the prosecution adducing defence evidence."

pp. 292–294, margin F

The accused need not prove the existence of the right beyond reasonable doubt. It is enough for civil case that the preponderance of of his plea.

p. 294, margin C

The number of injuries is not always a safe criterion for aggressor was. It cannot be stated as a whenever the injuries are on the body of the presumption must necessarily be raised persons had caused injuries in exercise of the The defence has to further establish caused on the accused probabilises the private defence. Non-explanation of the the accused at about the time of course of altercation is a very important non-explanation of the injuries by the affect the prosecution case in all cases. cases where the injuries sustained by and superficial or where the evidence so independent and disinterested, so credit-worthy, that it far outweighs the the part of the prosecution to explain the injuries. [See Lakshmi Singh SC 2263)). In this case, as the not even a single injury on the sustained large number of injuries more than a month. A plea of be based on surmises and whether the right of private defence it is not relevant whether he may and mortal injury on the aggressor. right of private defence is available incident must be examined with setting. Section 97 deals with private defence. The plea property (i) of the person exercising person; and the right may be offence against the body, and robbery, mischief or criminal offences in relation to property. of the right of private defence. of private defence against certain given under Sections 96 to 98 Section 99. To claim a right voluntary causing of death, the were circumstances giving apprehending that either death caused to him. The burden is had a right of private defence death. Sections 100 and 101, of right of private defence.

pp. 294–295, margin A

Sections 102 and 105, and coptinuance of the right property respectively. The right reasonable apprehension of danger attempt, or threat, or commit may not have been committed reasonable apprehension. reasonable apprehension of the danger to the body continues. In Jai Dev. v. State of Punjab (AIR 1963 SC 612), it was observed that as soon as the cause for reasonable apprehension disappears and the threat has either been destroyed or has been put to route, there can be no occasion to exercise the right of private defence.

pp. 295–296, margin F

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. Thus, running to house, fetching a tabli and assaulting the deceased are by no means a matter of course. These acts bear stamp of a design to kill and take the case out of the purview of private defence. Similar view was expressed by this Court in Biran Singh v. State of Bihar (AIR 1975 SC 87), in Sekar@Raja Sekharan v. State represented by Inspector of Police, Tamil Nadu [2002 (7) Supreme 124) and in Ananta Deb Singha Mahapatra & Ors. v. State of WB. r2001 (13) sec 374J.

p. 296

It is to be noted that there were a large number of eye witnesses who also had suffered injuries. PWs. 5,8, 19,22 and 26 are such witnesses whose version is clear, cogent and credible and there is no reason to discard their version. Trial court and the High Court have rightly relied upon their evidence. Additionally when the factual scenario is tested on the touchstone of legal principles relating to right of private defence are concerned it is clear that the plea is without substance. Above being the position present appeal is sans merit, deserves dismissal, which we direct. R.P. Appeal dismissed.

p. 296, margin D