Page 1

       REPORTABLE    

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1156 OF 2007

Gopal & Anr.               .... Appellant(s)

Versus

State of Rajasthan     .... Respondent(s)      

J U D G M E N T

P.Sathasivam,J.

1) This  appeal  is  filed  against  the  judgment  and  order  

dated 15.04.2006 passed by the High Court of Judicature for  

Rajasthan at Jaipur Bench in D.B. Criminal Appeal No. 247 of  

2001  whereby  the  High  Court  dismissed  the  appeal  in  

respect  of  the  appellants  herein  and  confirmed  their  

conviction and sentence awarded by the Court of Additional  

Sessions  Judge,  Shahpura,  District  Jaipur,  Rajasthan  vide  

judgment dated 18.04.2001 in Session Case No. 24 of 2000.  

1

Page 2

2

Page 3

2) Brief facts:

(a) As  per  the  prosecution  case,  Rameshwar  (since  

deceased)  was  the  guarantor  for  money  settlement  

agreement between one Santosh and Jagdish, residents of  

Tehsil Bishangarh, P.S. Manoharpur, Jaipur, Rajasthan.  When  

Jagdish started demanding money from Santosh prior to the  

expiry  of  the  agreement,  Rameshwar  intervened  between  

them.  Since then Jagdish started keeping a grudge against  

him which is the root cause of the case in hand and resulted  

into death of two persons in a fight between them.   

(b) On  16.07.2000,  at  07.30  a.m.,  when  Bhagwan  Sahai  

(PW-8), Bodu Ram (PW-7) and Rameshwar (since deceased)  

were going towards the well of Padmawati while crossing the  

field of one Prabhat (since deceased), at that time, Gopal (A-

1),  Jagdish,  Mahesh  (A-3),  Patasi,  Teeja,  Gokali  and  Sita  

belaboured  Rameshwar  by  inflicting  lathi  and  axe  blows.  

Due  to  the  attack,  Rameshwar  died  on  the  spot.   When  

Bhagwan Sahai and Bodu Ram tried to intervene, they were  

also  beaten  by  the  accused  party.   When  Prabhat  (since  

deceased), who was working in his field along with his son-

3

Page 4

Badri Yadav     (PW-10), approached towards Rameshwar for  

help, he was also beaten to death by the accused persons.   

(c) On the very same day, at 09.45 a.m., Badri Yadav (PW-

10) submitted a written report at P.S. Manoharpur relating to  

the  above-said  incident.   On  the  basis  of  the  aforesaid  

report, a case under Sections 147, 148, 149, 302 and 323 of  

the  Indian  Penal  Code,  1860  (in  short  ‘the  IPC’)  was  

registered  against  the  accused  persons,  viz.,  Gopal  (A-1),  

Jagdish, Mahesh (A-3), Teeja, Patasi and Gokali and the same  

was committed to  the Court  of  Additional  Sessions Judge,  

Shahpura,  District  Jaipur,  Rajasthan  and  numbered  as  

Sessions Case No. 24 of 2000.

(d) The Additional Sessions Judge, Shahpura after trial,  by  

order dated 18.04.2001, convicted Teeja under Section 302  

of  IPC  and Gopal,  Jagdish and Mahesh under  Section 302  

read with Section 34 of IPC and sentenced them to suffer  

rigorous  imprisonment  (RI)  for  life  alongwith  a  fine  of  

Rs.1,000/-  each,  in  default,  to  further  undergo  simple  

imprisonment  for  3  months.  Gokali  and  Patasi  Devi  were  

4

Page 5

convicted under Section 323 of IPC and were sentenced to  

the period already undergone by them in custody.   

5

Page 6

(e) Challenging the said order of conviction and sentence,  

the accused persons filed appeal being D.B. Criminal Appeal  

No. 247 of 2001 before the High Court.  By impugned order  

dated 15.04.2006, the High Court while modifying the order  

dated 18.04.2001 of the Additional Sessions Judge, allowed  

the appeal in respect of Teeja, Jagdish, Gokali and Patasi and  

dismissed the appeal in respect of Gopal (A-1) and Mahesh  

(A-3), the appellants herein, and confirmed their conviction  

and sentence awarded to them.   

3) Heard Mr. Kanhaiya Priyadarshi, learned amicus curiae  

appearing  for  the  appellants  and  Mr.  Ram Naresh  Yadav,  

learned counsel appearing for the respondent-State.

Contentions:

4) After taking us through the entire material relied on by  

the  prosecution  and  the  defence,  learned  amicus  curiae  

appearing for the appellants submitted that it is evident from  

the site plan that the members of the complainant’s party  

were  the  aggressors  and  they  came  to  the  field  of  the  

accused persons and attacked them.  He also submitted that  

the  appellants  also  received  injuries  at  the  hands  of  the  

6

Page 7

complainant’s  party  and  the  prosecution  had  failed  to  

explain  the  same.   Finally,  he  submitted  that  since  the  

members  of  the  complainant’s  party  were  the  aggressors  

and  attacked  on  the  accused  persons  causing  injuries  to  

Gopal  (A-1) and Mahesh (A-3) (the appellants herein),  the  

accused had a right of private defence, consequently, they  

are entitled for acquittal.

5) On the other hand, learned counsel for the respondent-

State supported the findings of the trial Court and the order  

of  the  High  Court  affirming  the  conviction  and  sentence  

insofar as the appellants are concerned and, consequently,  

prayed for dismissal of this appeal.

6) We have carefully considered the rival contentions and  

perused the relevant materials.

Discussion :

7) It is a case of double murder.  Admittedly, Rameshwar  

and Prabhat were died in the incident in question.  Though,  

initially,  the prosecution proceeded against 6 persons and  

the trial Court convicted and sentenced all of them, in the  

7

Page 8

appeal before the High Court, except the present appellants  

(A-1 &   A-3), others were acquitted.   

8) In support of their claim, the prosecution heavily relied  

on the evidence of Bodu Ram (PW-7) and Bhagwan Sahai  

(PW-8) – injured eye-witnesses and Badri  Yadav (PW-10) –  

son of Prabhat (since deceased).  Bodu Ram (PW-7), in his  

evidence has stated that about 4 months back, at about 7.30  

a.m., he along with his brother Bhagwan Sahai and uncle -  

Rameshwar  was  going  to  work  at  the  well.  When  they  

reached near the field of Gopal (A-1), they found that Gopal  

(A-1),  Jagdish,  Mahesh  (A-3),  Patasi,  Teeja,  Gokuli  were  

plucking round gourd (Tinda) from their field and on seeing  

them, they attacked on them and, thereafter, they went to  

the police station at 10 o’ clock.

9) Bhagwan Sahai (PW-8), in his evidence has stated that  

at  7.30  a.m.,  when  he  along  with  Rameshwar  (since  

deceased) and Bodu Ram (PW-7) reached near the field of  

Gopal  (A-1),  they  noticed  that  the  accused  persons  were  

plucking  round  gourd  (Tinda) and  on  seeing  them,  they  

started fighting with them. He further explained that Teeja  

8

Page 9

had an axe and other accused persons were having lathis.  

Rameshwar was beaten by Mahesh (A-3) with lathi and he  

fell down.  Teeja hit Rameshwar with an axe on his forehead  

and she also gave a hit at his armpit and one at his back.  He  

further  stated that  he  was  hit  by Gopal  (A-1),  Patasi  and  

Jagdish with lathis.  Bodu Ram (PW-7) was hit by Gokuli on  

his forehead and Jagdish and Mahesh (A-3)  hit  him at  his  

hand and armpit side respectively.  He further deposed when  

Prabhat, who was working in the field alongwith his son Badri  

(PW-10), approached us in order to help, at that time, Gopal  

(A-1),  Mahesh  (A-3)  and  Jagdish  ran  after  him  and  he  

(Prabhat) ran back towards Durga-ki-Dhani and all the three  

accused after chasing him hit him with lathis.  Banshi, Murli,  

Gopal and mother and wife of Badri had also seen Prabhat  

(since  deceased)  being  beaten  by  them.   Prabhat  and  

Rameswhwar both died in the incident.  Like Bodu Ram (PW-

7),  Bhagwan  Sahai  (PW-8)  also  sustained  injuries  and  he  

categorically stated that on seeing that Prabhat was running  

towards  Durga-Ki-Dhani,  the  present  appellants  and  other  

accused persons chased him and hit him with lathis due to  

9

Page 10

which  he  died.   His  evidence  corroborates  with  the  

statement of Bodu Ram (PW-7) and proves the case of the  

prosecution.

10) Badri  Yadav (PW-10),  in his evidence has stated that  

about 4 months back, at about 7 to 8 a.m., when he was  

working in  his  field behind his  house alongwith  his  father  

Prabhat (since deceased) who was sitting there, at that time,  

he  noticed  Bodu Ram (PW-7),  Bhagwan Sahai  (PW-8)  and  

Rameshwar (since deceased) going towards the well.    He  

further  deposed that  when they reached near  the field  of  

Gopal (A-1), who was plucking vegetables in his field along  

with  Mahesh  (A-3),  Jagdish,  Gokali,  Teeja  and  Patasi,  on  

seeing  them coming,  they  attacked  on  the  complainant’s  

party.  Teeja hit Rameshwar with an axe on his neck.  When  

Bodu Ram (PW-7) and Bhagwan Sahai (PW-8) tried to save  

him,  Gokali  and  Mahesh  (A-3)  fought  with  them  and  

Bhagwan  Sahai  (PW-8)  was  beaten  by  Patasi,  Gopal  and  

Jagdish.  He further stated that he saw the incident from a  

distance of 20 steps.  He also stated that when his father –  

Prabhat (since deceased) ran towards Durga-Ki-Dhani, Gopal  

1

Page 11

(A-1),  Jagdish and Mahesh (A-3) beat him with lathis.   He  

further  explained that due to lathi  blows,  Rameshwar and  

Prabhat died.  From his evidence,  it is seen that the incident  

occurred  in  the  field  of  Gopal  (A-1)  and  after  killing  

Rameshwar,  the  accused  persons  chased  Prabhat  and  

inflicted lathi blows, due to which, he also died.

11) Dr.  Shiv  Kumar  Tanwar,  who  did  post  mortem,  was  

examined as PW-25.  He also explained that the death of  

Rameshwar and Prabhat was due to the injuries inflicted with  

lathis.   

12) The materials placed and relied on by the prosecution  

show that Rameshwar (since deceased), Bodu Ram (PW-7)  

and  Bhagwan  Sahai  (PW-8)  had  gone  to  the  field  of  the  

appellants and there was a fight between both the groups.  It  

is also clear that the appellants fought to repel the attack  

and in the course of incident, both sides sustained injuries,  

as  a  result  of  which,  Rameshwar  died.  In  such  

circumstances, it would be possible for this Court to accept  

the claim of the appellants that since they were defending  

1

Page 12

themselves, they had a right of private defence.  In fact, the  

High Court has accepted the above stand.

13) Regarding the plea of private defence,  it  is  useful  to  

refer a decision of this Court in  V. Subramani & Anr. Vs.  

State of T.N. (2005) 10 SCC 358.  The following principles  

and conclusion are relevant:  

“11. The only question which needs to be considered is the  alleged exercise of right of private defence. 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 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  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 necessarily required to  call  evidence;  he  can establish  his  plea by  reference to  circumstances  transpiring  from the prosecution  evidence  

1

Page 13

itself. The question in such a case would be a question of  assessing the true effect of the prosecution evidence, and  not  a  question  of  the  accused  discharging  any  burden.  Where the right of private defence is pleaded, the defence  must be a reasonable and probable version satisfying the  court that the harm caused by the accused was necessary  for  either  warding  off  the  attack  or  for  forestalling  the  further  reasonable  apprehension  from  the  side  of  the  accused.  The  burden  of  establishing  the  plea  of  self- defence  is  on  the  accused  and  the  burden  stands  discharged by showing  preponderance of  probabilities  in  favour of that plea on the basis of the material on record.  (See Munshi Ram v. Delhi Admn. (1968) 2 SCR 455, State  of Gujarat v.  Bai Fatima,(1975) 2 SCC 7,  State of U.P. v.  Mohd. Musheer Khan, (1977) 3 SCC 562, and Mohinder Pal  Jolly v.  State of Punjab,(1979) 3 SCC 30.) Sections 100 to  101 define the extent of  the right  of  private defence of  body. If  a person has a right of private defence of body  under Section 97, that right extends under Section 100 to  causing  death  if  there  is  reasonable  apprehension  that  death or grievous hurt would be the consequence of the  assault. The oft-quoted observation of this Court in  Salim  Zia v. State of U.P.,(1979) 2 SCC 648  runs as follows: (SCC  p. 654, para 9)

“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  prosecution  witnesses or by adducing defence evidence.” The accused need not prove the existence of the right of  private defence beyond reasonable doubt. It is enough for  him to show as in a civil case that the preponderance of  probabilities is in favour of his plea.”

1

Page 14

Based on the above principles, in view of the discussion of  

the  prosecution witnesses,  viz.,  PWs 7,  8  and 10 coupled  

with the fact that the incident occurred in the field of the  

appellants, who also sustained injuries which is evident from  

the evidence of  the doctor,  who examined the  injuries  of  

Gopal (A-1) and Mahesh (A-3)-appellants herein, the stand of  

the appellants, as rightly argued by learned amicus curiae, is  

to be accepted.  However, as per the prosecution story, not  

only Rameshwar but in the same incident Prabhat also died  

due to lathi blows inflicted by the appellants herein.   

14) The only moot question for consideration is whether the  

right  of  private defence is  still  available to  the appellants  

when they chased Prabhat near Durga-ki-Dhani and inflicted  

lathi blows on him?  We have already noted the evidence of  

PWs  7,  8  and  10  which  clearly  established  that  Prabhat  

(since  deceased)  was  not  present  at  the  place  where  

Rameshwar was assaulted.  It is also seen that after inflicting  

injuries  on  the  person  of  Rameshwar,  the  appellants  ran  

towards Prabhat, who was standing 10 steps away from the  

place of incident.  It is further seen from their evidence that  

1

Page 15

after seeing the incident relating to the death of Rameshwar,  

Prabhat started running towards Durga-ki-Dhani and he was  

chased by the accused persons and they inflicted lathi blows  

on his person.  In such a situation, we are of the view that  

the  appellants  have  no  right  to  invoke  the  right  of  self  

defence  by  chasing  Prabhat  and  causing  fatal  injuries  on  

him.   In  other  words,  the  reasonable  apprehension  has  

disappeared  when  they  noticed  that  Prabhat  was  running  

away  from  the  scene  in  order  to  escape,  in  such  

circumstances  though  the  appellants  were  entitled  to  the  

plea of private defence insofar as the death of Ramehwar is  

concerned, they are not justified in availing the same for the  

cause  of  death  of  Prabhat.   On  the  other  hand,  they  

exceeded  their  limit  and  the  materials  placed  by  the  

prosecution clearly show that they chased Prabhat at some  

distance near Durga-Ki-Dhani, pushed him down and inflicted  

several  blows  with  lathis  due  to  which  he  died.   In  such  

circumstances, the trial Court was justified in convicting the  

appellants under Section 302 read with Section 34 of IPC and  

sentencing them to suffer RI for life.  Taking note of all these  

1

Page 16

aspects,  we are of the view that the High Court was fully  

justified in confirming the order of conviction and sentence  

insofar as the present appellants and dismissing the appeal  

in respect of them.

15) In the light of the above discussion, we find no merit in  

the appeal and the same is accordingly dismissed.   We wish  

to record our appreciation for the assistance rendered by Mr.  

Kanhaiya Priyadarshi, learned amicus curiae in putting forth  

the case of the appellants.  

………….…………………………J.                   (P. SATHASIVAM)                                  

       ………….…………………………J.                  (JAGDISH SINGH KHEHAR)   

NEW DELHI; JANUARY 18, 2013.

1