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TMI Blog2008 (8) TMI 1041X X X X Extracts X X X X X X X X Extracts X X X X ..... ution in a nutshell are as follows: The incident occurred on 12.7.1978 at about 5.30 a.m. The respondents 1 and 2 are brothers and sons of Sheo Balak Misra. On the aforesaid date and time the accused respondents armed with knife and lathi respectively arrived at the `Gotha' of the Mohan Mishra (hereinafter referred to as the `deceased') and accused Hari Shanker started beating the deceased with lathi and also asked his brother Prem Shanker to kill him, whereupon Prem Shanker assaulted the deceased with knife. On hearing the cries of deceased, his brother R.P. Mishra (PW-1) who was washing his hands at the Hand Pump installed in the east of `Gotha' of Ramakant Mishra, rushed to the scene of occurrence. The cries also attracted Ramakant Mishra (P.W.2), Suresh Mishra (P.W.4), Shiv Sahai and Vibhuti Mishra. Ramakant Mishra tried to rescue the deceased but he too was assaulted by Prem Shanker with knife. Deceased fell down on the ground. The witnesses succeeded in apprehending Prem Shanker along with the knife with which he had assaulted the deceased and Ramakant. However, accused Hari Shanker succeeded in making good his escape. Thereafter Ram Pyare Mishra and other witness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary vessels had also been cut. The chest cavity contained fresh blood about 520 ml. Stomach was empty while large intestines contained gases and faecal matter. In the opinion of the doctor death was due to shock and hemorrhage as a result of ante mortem injuries. The postmortem report is Ex.Ka.4. The motive for assaulting Mohan Mishra as alleged in the first information report was that on 10-7-78 Prem Shanker had made an attempt to have carnal intercourse with Rakesh, son of deceased and Rakesh told this fact to his father. Deceased accosted accused Prem Shanker whereupon the latter threatened him with dire consequences. Since the accused persons pleaded innocence, trial was held. In order to substantiate the accusations six witnesses were produced. R.P. Mishra (PW-1) is the first informant and younger brother of the deceased. Ramakant Mishra (PW-2) is an eye witness. It is to be noted that PW-1 was the injured witness. The accused persons took the stand that on the date of occurrence accused Prem Shanker went to throw cow dung in the field in the morning and he was assaulted by Mohan Mishra with lathi. On hearing his cries his younger brother Hari Shanker came there with spear in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 legitimately 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. Under Section 105 of the Indian Evidence Act, 1872 (in short `the Evidence Act'), 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in favour of his plea. 6. 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. Section 97 deals with the subject matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 10. The right of self-defence is a very valuable right, serving a social purpose and should not be construed narrowly. (See Vidhya Singh v. State of M.P. 1971CriLJ1296 . Situations have to be judged from the subjective point of view of the accused concerned in the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny. In adjudging the question as to whether more force than was necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to have wrongly interpreted the opinion of the doctor. The genesis according to the High Court has not been established. If that be so, there was no question of exercise of right of private defence. The High Court's conclusion as regards shifting the onus on the prosecution is also without any legal foundation. It is to be noted that nothing was found in the field as was pleaded by the defence to substantiate the right of private defence. The FIR was promptly lodged. The doctor had opined that the injury was possible with knife but the High Court without any discussion held otherwise. So far as the alleged non-explanation of injuries on the accused aspect is concerned, the High Court clearly overlooked the relevant materials. From the evidence it is clear that after the accused persons assaulted the deceased and the injured witnesses they were beaten by the villagers. In the FIR also there is mention about the beating given by villagers. The High Court held that the details of the assaults were not given in the FIR. In this context, the view expressed by this Court in Chacko @ Aniyan Kunju and Ors. v. State of Kerala (2004)12SCC269 needs to be noted. In paras 7 and 8 it was o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eighs the effect of the omission on the part of prosecution to explain the injuries. As observed by this Court in Ramlagan Singh v. State of Bihar 1973CriLJ44 prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done, there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In Hare krishna Singh and Ors. v. State of Bihar 1988CriLJ925 , it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of guilt of the accused beyond reasonable doubt, question of obligation of prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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