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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1695 OF 2005

MANJEET SINGH … APPELLANT

VERSUS

STATE OF HIMACHAL PRADESH            … RESPONDENT

J U D G M E N T

SUDHANSU JYOTI MUKHOPADHAYA, J.

The appellant has assailed the judgment dated 18th October, 2004  

passed by the High Court of Himachal Pradesh, Shimla in Criminal Appeal  

No.259 of 2002. By the impugned judgment the High Court dismissed the  

appeal and affirmed the judgment passed by the Trial Court dated 27th  

March, 2002 in Sessions Trial  No.17-S/7 of 2001 wherein the Trial Court  

convicted the appellant and sentenced him to imprisonment for life and  

also to pay fine of Rs.5,000/- for the offence under Section 302 IPC and in  

default,  further  imprisonment  for  one  year.  The  appellant  was  also  

sentenced  by  the  Trial  Court  for  the  offence  under  Section  324 IPC  to  

undergo  imprisonment  for  six  months  and  to  pay  fine  of  Rs.500/-,  in  

default,  further  simple  imprisonment  for  one month.  The appellant  was  

also sentenced for the offence under Section 27 of Arms Act to undergo  

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imprisonment for three months and to pay fine of Rs.1000/-,  in default,  

further simple imprisonment for one month.  The Trial Court ordered that  

all the aforesaid sentences shall run concurrently.

2. The facts of the prosecution case as stated by Jai Pal (PW.5) are  

that he was carrying business of taxi in Shimla. On 31st December, 2000 at  

about 9 p.m. he had gone to Hotel Apsara at Cart Road, Shimla to inquire  

from  Budhi  Singh  (PW.8),  Manager  of  the  Hotel  Apsara  regarding  the  

booking of his taxi by some passenger staying in the Hotel. Budhi Singh  

(PW.8) asked Jai Pal (PW.5) to come after some time. Both of them then  

went together to Hotel Basant for celebrating New Year. They took wine  

and  dinner  together  and  remained  in  the  said  Hotel  till  12  o’clock.  

Thereafter, Budhi Singh(PW.8) returned to Hotel Apsara while Jai Pal (PW.5)  

came towards Cart Road where he met Romi Kapoor (PW.6), Pawan Kumar  

(PW.7),  Deep  Chand  and  Rajnish  alias  Rintu  who  inquired  about  the  

booking of a room in the Hotel as earlier agreed upon. Jai Pal (PW.5) went  

to the Hotel Apsara where he did not find Budhi Singh (PW.8), Therefore,  

he went upstairs in the Hall of the Hotel where he found accused Manjeet  

Singh along with  Balraj  and Surender  Kumar were taking liquor.  Jai  Pal  

(PW.5)  inquired  from  the  appellant-accused,  Manjeet  Singh  about  the  

Manager of the Hotel to which the accused was alleged to have retorted  

that he was not the Chowkidar of the Hotel so as to know and tell about the  

Manager.  Accused-Manjeet  Singh  was  further  alleged  to  have  started  

abusing Jai Pal (PW.5) by proclaiming that he was serving in Punjab Police.  

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The accused was further alleged to have started beating Jai Pal (PW.5) by  

giving him a fist blow on his mouth.  Jai Pal (PW.5) ran outside. He met the  

above-named Romi Kapoor (PW.6), Deep Chand, Pawan Kumar (PW.7) and  

Rajnish.  He narrated the incident to them. Romi Kapoor (PW.6), Rajnish  

alias  Rintu  and  Pawan Kumar  (PW.7)  went  inside the  Hall  while  Jai  Pal  

(PW.5) and one Roshan remained standing at the entrance of the Hotel.  

Rajnish alias  Rintu inquired from  the accused-Manjeet  Singh as to  the  

cause  of  his  having given beatings  to  Jai  Pal  (PW.5).  The  accused was  

alleged to have told his  companions,  Balraj  and Surender Kumar to tell  

Rajnish and his friends about the cause of the beatings to Jai Pal (PW.5).  

Balraj  and  Surender  Kumar  were  then  alleged  to  have  abetted  and  

instigated the accused by saying “Carbine Ka Kamal Dekhao”. Whereupon  

accused was alleged to have fired shots from his Carbine which hit Rajnish  

alias Rintu, Romi Kapoor (PW.6), Jai Pal (PW.5) and Pawan Kumar (PW.7).  

Rajnish alias Rintu sustained two shots on his chest and he fell down on the  

ground. The accused and Balraj were alleged to have run away after the  

gun  shots.  Jai  Pal  (PW.5)  lifted  Rajnish  alias  Rintu  and  carried  him  to  

I.G.M.C. Hospital, Shimla, where he was declared dead.

3. On the telephonic message of one Pradeep Kumar,  Jagdish Ram  

(PW.25),  Station  House  Officer,  Police  Station  Sadar  reached  the  spot.  

Surender Kumar, a companion of the accused, was apprehended from the  

toilet of the Hotel. Since, the injured persons had already been taken to the  

Hospital,  Jagdish  Ram  (PW.25)  went  to  the  Hospital  and  recorded  the  

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statement of Jai Pal (PW.5), on the basis of which a case for the offences  

under  Section 302,  307 and 323 read with  Section 34 IPC came to  be  

formally registered vide F.I.R. No.1/2001.

4. Post-mortem  examination  was  conducted  by  Dr.  V.K.  Mishra  

(PW.24) who found the following two ante-mortem bullet injuries on the  

person of the deceased Rajnish alias Rintu:

“(i) A circular wound of entry one centimeter in diameter,   1.5  cm  medial  to  right  nipple,  18  cm  below  right   shoulder joint. Dry clotted blood was present around  the  wound.  There  was  no  blackening,  tattooing,   singeing, burning etc;

(ii) A circular wound of entry 1 cm x ½ cm between the   base  of  1st and  2nd metatarsal  bone  of  left  foot,   dorsum  with  dry  clotted  blood  present  around  the   wound.  No  blackening,  tattooing,  singeing,  burning   etc. noticed over the skin.”

In  the opinion of  Dr.  V.K.  Mishra (PW.24),  the death was due to  

haemorrhagic shock as a result of laceration of lung due to gun shot injury.

5. On  Medical  Examination  of  Romi  Kappor  (PW.6),  Dr.  M.P.  

Singh(PW.1)  found the following injuries on the person of Romi Kapoor:

“Local Examination

1. A CLW 1 cm X 0.5 cm X 1 cm in size placed horizontally   on little side of left upper arm on lower part of deltoid   muscle, red in colour with dark edges due to soot with   irregular margins which were depressed.

2. A. CLW 1 cm  0.5 cm  1 cm in size placed horizontally   approximately 2.5 cm lateral to first would on lateral   inside of left upper arm on lower part of deltoid muscle   with  irregular  margins  elevated  and  margins   deliberated red in colour.  Same marks were present   over sweater and shirt worn.”

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As  per  the  opinion  of  the  doctor,  injuries  Nos.1  &  2  were  bullet  

injuries and the same were dangerous to the life as per rule of gun shot  

injuries. The Doctor has also issued MLC Ext. PW-2/B in respect of the said  

injuries.

6. On the same day, Dr. M.P. Singh (PW.1) has also examined injured  

Pawan Kumar and observed as under:

“Local injuries: A CLW over right foot approximately 5 cm about tip of right big toe   placed horizontally 1 cm  0.5 cm  1 cm in size with irregular margins   red in colour.

A  bruise  bluish  in  colour  present  1  cm  X  0.5  cm  in  size  placed   obliquely over fifth metatars o-phalangel joint running lately on right   foot.

On  the  basis  of  x-ray  report,  the  injury  Nos.1  and  2   were declared dangerous to the life and were fresh in   duration  and  were  caused  by  a  blunt  weapon.  The  Doctor has issued MLC Ext.PW-1/C.”

On the same day, Dr. M.P. Singh (PW.1) has also examined injured  

Jai Pal (PW.5) and found as under:

“Local Injuries

1. A CLW 1.5 cm in size placed in the middle of inner side   of upper lip placed obliquely upwards and lately on left   side,  reddish  scabbing  over  lip  present  with  clotted   blood.

2. A bruise present over upper lip in the centre reddish  blue in colour 1 cm X 0.5 cm in size placed vertically.   No  other  injury  was  present.  Teeth  were  normal.   Injuries  No.1and  2  were  simple  and  the  duration  of   injuries was within 24 hours and were caused by blunt   weapon.”

After his examination Doctor has issued MLC Ext.PW-1/D.

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7. The  accused-Manjeet  Singh  too  was  subjected  to  medical  

examination,  which  was  carried  out  by  Dr.  Dinesh  Rana  (PW.2)  on  1st  

January, 2001 at about 5.55 p.m. The accused at the time of such medical  

examination complained of pain in the fifth knuckle region of the left hand.  

X-ray was advised. However, local examination revealed the presence of a  

red colour contusion and swelling on such knuckle region. The accused also  

complained of breaking of upper incisor tooth. He was referred to Dental  

Surgeon. On the basis of dental opinion, such injury was opined to be of a  

simple  nature  having  been  caused  within  the  probable  duration  of  24  

hours.

8. Balraj, a companion of the accused, was also medically examined  

by Dr. Dinesh Rana (PW.2). Following injuries were found on his person:

“(i) 4 cm 1 cm abrasion over the dorsum of right fore- arm;

(ii) 1.5 cm x 1.5 cm round abrasion red in colour, above   the writ joint;  

(iii) 3.5 cm x 2 cm abrasion, read in colour with linear   scratch in the mid. 3 cm outer aspect of the left knee   joint;  

(iv) Multiple  irregular  abrasions  on  the  entire  lateral   aspect of the left lower leg. Red in colour, and  

(v) Small  irregular  abrasion  on  the  left  side  of  the   forehead. Red in colour.”

All  the  injuries  were  opined  to  be  of  simple  nature  having  been  

caused with a blunt weapon within the probable duration of 24 hours.

9. The other companion of the accused, namely, Surender Kumar was  

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medically examined by Dr. Rajneesh Sharma (PW.4) on 1st January, 2001 at  

about 4.35 a.m. One injury, that is, laceration over the fore-head 1.5 cm x  

1 cm x 0.5 cm was found. He was smelling of liquor and there was slurring  

of speech. The injury was simple in nature having been caused with a blunt  

weapon with the probable duration of 6 hours.

10. On  having  been  produced  by  the  accused,  Carbine-Ex.P4  with  

empty  magazine  vide  memo  Ex.PW5/C  were  taken  into  possession  by  

Gulam  Mohammad(PW.26),  Additional  Station  House  Officer  of  Police  

Station Sadar, who had partially investigated the case. Six live cartridges  

Ex.P1 to P6 were also produced by the accused, which were taken into  

possession vide memo Ex.PW5/D by Gulam Mohammad(PW.26). Six empty  

cartridges  were  taken  into  possession  from  the  spot  by  Gulam  

Mohammad(PW.26)  vide  memo  Ex.PW5/E.  Service  belt  of  the  accused,  

which was lying on the bed in the Hall of the Hotel was also taken into  

possession vide memo Ex.PW5/F.

11. The Ballistic Expert to whom the carbine, live and empty cartridges  

were  sent  for  examination,  vide  report  Ex.PW25/E  has  opined  that  the  

empty cartridges were fired from the carbine Ex.P4.

12. On completion of the investigation the accused along with his two  

companions Balraj and Surinder Kumar were sent up for trial.  

The  accused  was  charged  for  the  substantive  offences  under  

Section 302 and 307 IPC, and under Section 27 of the Arms Act, 1959.  His  

two companions, Balraj and Surinder Kumar, were charged for the offence  

under Section 114 read with Sections 302 and 307 IPC, for  having abetted  

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and instigated the commission of the offences under Section 302 and 307  

IPC by the accused.

13. The  accused  and his  two  companions  pleaded  not  guilty  to  the  

charge and claimed trial. The prosecution in support of its case examined  

as many as 26 witnesses.  

14. The  learned  Additional  Sessions  Judge,  on  consideration  of  the  

evidence coming on the record, by the impugned judgment, convicted and  

sentenced the accused- Manjeet Singh as mentioned above.

15. The accused was acquitted of the offence under Section 307 IPC.  

The  two  companions  of  the  accused,  Balraj  and  Surinder  Kumar  were  

acquitted of all the charges framed against them.  

16. By the impugned judgment the High Court noticed the submission  

made on behalf of the appellant and on appreciation of the evidence on  

record dismissed the appeal  and affirmed the conviction and sentences  

imposed by the Trial Court.  

17. Learned counsel for the accused has assailed the conviction and  

sentence on the ground that the accused had acted in exercise of the right  

of private defence. It was submitted that the genesis of the occurrence was  

different from what the prosecution has suggested and highlighted. In fact,  

the occurrence had taken place in the manner suggested by the accused in  

his defence. The deceased and his companions had made a forcible entry  

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into the Hall  of  the Hotel  and started beating the accused and his two  

friends and in such course they had tried to snatch the carbine, which got  

fired during the scuffle.

18. From the  record,  we  find  that  neither  the  accused  nor  his  two  

companions  in  the  statements  recorded under  Section 313 Cr.P.C.,  has  

stated that the deceased and his companions were the aggressors and that  

the accused was acting in exercise of the right of private defence. In fact,  

their case is that of total denial.  There is nothing on the record to suggest  

that the accused or his companions received injuries at the hands of the  

deceased or the deceased tried to snatch the carbine of the accused. No  

evidence  has  been  brought  on  record  that  the  deceased  and  his  

companions entered the Hall of the Hotel with arms.  

19. Under Section 96, IPC, “Nothing is an offence which is done in the  

exercise of the right of private defence”. Right of private defence of the  

body and of property has been enumerated under Section 97, IPC, subject  

to the restrictions contained in Section 99, IPC. As per the said section  

every person has a right to defend-

    “First.  -      His own body, and the body of any other   person, against any offence affecting the  human body;

Secondly-The  property,  whether  movable  or  immovable,  of  himself  or  of  any  other   person, against any act which is an offence  falling under the definition of theft, robbery,   mischief or criminal trespass, or which is an   attempt to commit theft, robbery, mischief   or criminal trespass.”

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Section 102, IPC, deals with commencement and continuance of  

the right of private defence of the body as follows:

“Section 102. Commencement and continuance  of the right of private defence of the body.- The  right of private defence of the body commences as   soon as a reasonable apprehension of danger to the   body arises from an attempt or threat to commit the   offence  though  the  offence  may  not  have  been  committed;  and  it  continues  as  long  as  such  apprehension of danger to the body continues.”

The  extent  and  limitations  of  the  right  of  private  defence  is  

prescribed under Section 96 to 106, IPC. Such a right can be exercised only  

to defend the unlawful action and not to retaliate.  

20. This Court in  George Dominic Varkey v. The State of Kerala,   

(1971) 3 SCC 275, has held:

“6……Broadly  stated,  the  right  of  private  defence   rests  on  three  ideas:  first,  that  there  must  be  no  more harm inflicted than is necessary for the purpose  of defence; secondly, that there must be reasonable   apprehension of danger to the body from the attempt   or threat to commit some offence; and, thirdly, the  right does not commence until there is a reasonable   apprehension. It is entirely a question of fact in the   circumstances  of  a  case  as  to  whether  there  has   been excess of private defence within the meaning of   the 4th clause of Section 99 of the Indian Penal Code,   namely,  that  no  more  harm  is  inflicted  than  is   necessary for the purpose of defence. No one can be   expected to find any pattern of conduct to meet a   particular  case.  Circumstances  must  show that  the   court can find that there was apprehension to life or   property or of grievous hurt. If it is found that there   was apprehension to life or property or of grievous   hurt the right of private defence is in operation. The  person exercising right of private defence is entitled   to stay and overcome the threat.”  

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21. In   Moti Singh v. State of Maharashtra, (2002) 9 SCC 494,  

this Court held that dimension of the injuries may not be serious, it is the  

situs  of  the  injuries  that  would  indicate  whether  the  accused  could  

reasonably entertain the apprehension that at least grievous injuries/hurt  

would be caused to him by the assaulters unless aggression is thwarted.  

22. In the present case during the course of cross-examination of the  

prosecution witnesses, especially Jai Pal(PW.5), Romi Kapoor (PW.6), Pawan  

Kumar  (PW.7),  Satish  Kumar  (PW.9)  and  Charanjeet  Singh  (PW.12)  an  

attempt has been made on behalf of the accused to set up the case of  

private defence.  

23. In   Rajender Singh and others v. State of Bihar, (2000) 4  

SCC 298, dealing with the similar proposition this Court held as follows:

“Non-explanation of the injuries on the person of the   accused, ipso facto, cannot be held to be fatal to the   prosecution case. Ordinarily,  the prosecution is  not   obliged  to  explain  each  and  every  injury  on  the   person of  the  deceased  even  though  such  injuries   might  have  been caused  during  the  course  of  the   occurrence and they are minor in nature. But where   the  injuries  are  grievous,  non-explanation  of  such   injuries  would  attract  the  Court  to  look  at  the  prosecution case with little suspicion on the ground   that the prosecution has suppressed the true version   of the incident.”

24. Evidence of eye-witnesses, especially of the injured, namely, Jai Pal  

(PW.5),  Romi  Kapoor  (PW.6)  and  Pawan  Kumar  (PW.7),  which  are  

trustworthy,  when  read  together,  we  find  that  non-explanation  of  the  

injuries on the person of the accused and his two companions cannot be  

held to be fatal to the prosecution case.  

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25. Satish  Kumar  (PW.9),  an  independent  witness,  who  was  also  

staying and sleeping in the Hall where the occurrence had taken place,  

though  he  was  declared  hostile,  has  admitted  the  correctness  of  the  

prosecution story in the following terms:

“It  is  correct  that  when I  woke up on hearing  the   noise, I saw a boy coming in the hall and inquiring   about  the  Manager  from  the  accused  Manjit.  It  is   correct that one of the associates of accused Manjit,   i.e., one driver stated that we are not Chowkidar, so   you  tell  the  Manager.  It  is  correct  that  upon  this   accused  persons  started  beating  that  boy  and  thereafter other associates of that boy also came in   the hall of that hotel after about 5-7 minutes.”

In answer to Court question, PW.9 has staed:

“The driver who was with accused Manjit was heavily   drunk  and  was  also  abusing  the  other  party  and  Manjit  accused  tried  to  prevail  upon  him  and  thereafter said driver attempted to assault those 4-5   persons  present  in  the  hall  and  thereafter  free  fighting between the parties.”

The above statement of Satish Kumar (PW.9) lends support to the  

prosecution story to show that it was the accused who was the aggressor  

and that the accused had not acted in private defence.

26. The question now requires to determine is as to what is the nature  

of offence that the accused has committed. The evidence produced against  

the accused does not  show that the accused had any motive to cause  

death of the deceased or have intended to cause such bodily injuries which  

were sufficient in the ordinary course of nature to cause the death of the  

deceased.  Evidence  on record  also  does  not  establish  that  the  injuries  

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caused on the body of the deceased must in all probability cause his death  

or likely to cause his death. On the spur of the moment, during the heat of  

exchange of words accused caused injuries on the body of the deceased  

which  caused  his  death.  Therefore,  the  ingredients  of  the  murder  as  

defined  in  Section  300,  IPC,  have  not  been  established  against  the  

accused. In our opinion, the accused was guilty of culpable homicide not  

amounting to murder under Section 304, IPC, and considering the fact that  

the accused had no intention to either cause the death of the deceased or  

cause such bodily injury  as is  likely to cause death of the deceased,  it  

would  be  sufficient  to  impose  on  accused  a  sentence  of  seven  years  

rigorous imprisonment and to impose on him a fine of Rs.5,000/- and in  

default of payment of fine, a further imprisonment of six months.  

27. We,  accordingly,  set  aside  the  conviction  of  the  accused  under  

Section 302, IPC but hold him guilty of the offence under Section 304, IPC  

and  sentence  him  to  seven  years  rigorous  imprisonment  and  fine  of  

Rs.5,000/-,  in  default  of  payment  of  fine  a  further  imprisonment  of  six  

months. The conviction and sentences for the offence under Section 324,  

IPC and Section 27 of the Arms Act passed by the Trial Court are affirmed.  

All the sentences shall run concurrently. If the accused-Manjeet Singh has  

not yet undergone the sentence imposed and affirmed by us, and is not in  

custody, he be taken into custody to serve the remainder.  

28. The appeal  stands disposed of  with the above observations and  

directions.

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……………………………………………………J.                 (A.K. PATNAIK)

…….……….……………………………………J. NEW DELHI,                          (SUDHANSU JYOTI MUKHOPADHAYA)    APRIL 25, 2014.

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ITEM NO.1B               COURT NO.10             SECTION IIB (For Judgment)

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                     CRIMINAL APPEAL NO(s). 1695 OF 2005

MANJEET SINGH                                     Appellant (s)                  VERSUS STATE OF H.P.                                     Respondent(s)

Date: 25/04/2014  This Appeal was called on for pronouncement of      judgment today.

CORAM :         HON'BLE MR. JUSTICE SUDHANSU JYOTI MUKHOPADHAYA         HON'BLE MR. JUSTICE R.K. AGRAWAL

For Appellant(s)  Mr. Prashant Chaudhary,Adv.

For Respondent(s)    Ms. Pragati Neekhra,Adv.

     Hon'ble  Mr.  Justice  Sudhansu  Jyoti  Mukhopadhaya  

pronounced the reportable judgment of the Bench comprising  

Hon'ble Mr. Justice A.K. Patnaik and His Lordship.

The conviction of the accused under Section 302,  

IPC is set aside but he is held guilty of the offence under  

Section  304,  IPC  and  is  sentenced  to  undergo  seven  years  

rigorous imprisonment and fine of Rs.5,000/-, in default of  

payment of fine a further imprisonment of six months. The  

conviction and sentences for the offence under Section 324,  

IPC and Section 27 of the Arms Act passed by the Trial Court  

are affirmed. All the sentences shall run concurrently. If  

the accused-Manjeet Singh has not yet undergone the sentence  

imposed and affirmed and is not in custody, he be taken into  

custody to serve the remainder.

The  appeal  stands  disposed  of  in  terms  of  the  

signed reportable judgment.

     [RAJNI MUKHI]            [USHA SHARMA]                SR. P.A.           COURT MASTER

(Signed reportable judgment is placed on the file)

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