Result of U.P. Higher Judicial Service (Main Written) Examination, 2014 Direct Recruitment to U.P. Higher Judicial Service held on 14th, 15th and 16th November, 2014 has been declared. High Court of Madhya Pradesh, Jabalpur notified Advertisement for recruitment additional district judges through M.P. Higher Judicial Service (Entry Level) Direct Recruitment for BAR, Exam 2015 Haryana Judicial Services Examination 2014-Pre is conducted on 10th of Jan 2015. The result is awaited. THE HIGH COURT OF DELHI will hold examination for direct recruitment against 14 vacancies to Delhi Higher Judicial Service on Sunday, the 06th April,2014-Last Date 06.02.2014 13/11/2013: While renewing the term of the appointment of the existing incumbents the State Government is required to consider their past performance and conduct in the light of the recommendations made by the District Judges and the District Magistrates. Therefore, the High Court could not have issued a Mandamus for renewal of the term of respondent Nos. 1 and 2 and other similarly situated persons and thereby frustrated the provisions of LR Manual and Section 24 Cr.P.C .- SUPREME COURT.
HIGH COURT JUDGEMENT
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  Date 1/19/2011 1:15:00 PM
  Court Delhi High Court
  Parties MAHAVIR SINGH … Appellant

versus

STATE ... Respondent

  Appeal Criminal Appeal - CRL.A. 328/1997
  Act Indian Evidence Act -
  Judgement
  1. The appellant (Mahavir Singh) as well as his brother Jogender Singh @ Pappu and his mother Mallo Devi were accused for having allegedly committed the offence punishable under Sections 302/34 IPC in respect of Virender and the offence punishable under Sections 307/34 IPC in respect of Balbir Singh (PW-2) and Ranbir Singh (PW-3). The appellant was also accused of having committed the offence punishable under Section 27 of the Arms Act, 1959. Insofar as Mallo Devi is concerned, she passed away prior to the framing of charges. Jogender @ Pappu was acquitted of all charges by the trial court. However, by virtue of the impugned judgment and / or order dated 29.07.1997, the present appellant – Mahavir Singh has been convicted for having committed the murder of Virender and has been sentenced to undergo rigorous imprisonment for life. A fine of ` 5,000/- had also been imposed on him and, in default whereof, he is to undergo rigorous imprisonment of one month. The appellant has, however, been acquitted of the charges under Sections 307/34 IPC and Section 27 of the Arms Act.

2. According to the prosecution, there was enmity between Mahavir Singh, Jogender Singh and Mallo Devi on the one side and the deceased Virender and his family on the other. This, according to the prosecution, was the result of an incident which took place about 8-9 months prior to the events leading to the death of the deceased Virender on 07.12.1985. It is alleged that, at that point of time, i.e., 8-9 months prior to 07.12.1985, PW-6 [Ram Chander- brother of deceased Virender] had taken away Mahavir’s sister, who returned after 3-4 days. However, that matter was resolved. Despite that, the enmity between the two families remained. It is further the case of the prosecution that on 06.12.1985, i.e., one day prior to the date of occurrence, the accused persons had threatened the family of the deceased that they would settle scores with the family members one by one. There were some altercation and it is alleged that in the course of that altercation, Jogender @ Pappu had hit the deceased’s uncle Ram Kumar [PW-1] with a brick. The parties reached the police station and the matter was compromised.

However, when they were returning from the police station, the accused again remarked that they would not rest till they took revenge. It is further the case of the prosecution that on the next day, i.e., on 07.12.1985, at about 12.00 noon, when Virender went to untie his buffaloes tethered near the railing of the park, Jogender @ Pappu and Mahavir Singh as also their mother Mallo Devi, who was standing nearby, came there and started abusing him.

It is alleged that Jogender @ Pappu and Mahavir Singh were armed with knives and they both pounced upon Virender saying that he would be finished on that day itself and started giving knife blows to him. When he started to run towards his house in order to save himself, it is alleged that Mallo Devi exhorted both her sons that Virender should be killed on that day itself and she also ran after Virender. It is further alleged that they caught hold of the deceased Virender and started giving him blows. In order to save Virender, PW-3 (Ranbir Singh) and his father, PW-2 (Balbir Singh) gave danda blows to the accused persons. However, it is further alleged that the accused gave knife blows to them and that in their self-defence PW-2 and PW-3 as well as Virender gave danda blows to Mallo Devi. It is alleged that in the meantime, the uncle of the deceased [Ram Kumar (PW-1)] also reached the spot. Virender did not survive the injuries and succumbed to them on the spot.

3. On the other hand, it is the specific plea taken by the learned counsel for the appellant from the very beginning that he acted in exercise of his right of private defence and, therefore, he cannot be said to have committed any offence. In answer to question No.21, in his statement under Section 313 CrPC, the case of private defence is clearly set up by the appellant in the following words:-

“Q: 21. Have you anything else to say ?

Ans: On 7.12.85 at about 11.15 A.M. I was just to go to the college and had reached near the park, I heard a noise and Ranvir, Balbir and Virender were beating my mother Mallo Devi (now expired) and my younger brother Jogender Singh. When I intervened and tried to save my mother and brother, they also started giving me hockey and danda blows and in order to save myself also, I ran towards a nearby khokha of cycle repair and picked up some iron patti and again came at the spot and waived the patti in the air and the same might have inflicted injuries to someone. As I also had received injuries and I became unconscious and gained consciousness in the hospital. I am innocent”.

4. The learned counsel appearing on behalf of the appellant submitted that insofar as Jogender @ Pappu is concerned, the trial court has acquitted him of all the charges giving him the benefit of doubt. He further submitted that the trial court has not returned any finding against the appellant insofar as the alleged offence under Section 27 of the Arms Act is concerned. That being the case, it was urged on behalf of the appellant, how could the appellant be convicted of having committed the murder of Virender ?

It was also urged by the learned counsel for the appellant that the alleged recovery of the murder weapon, which is said to be a knife (Exhibit P-1), is, at best, doubtful. The learned counsel for the appellant further stressed that the trial court in the impugned judgment has, at several places, observed and held that the situation resembled a “free-for-all” quarrel between the two parties. He submitted that the trial court fell in error in holding that the appellant had exceeded his right of private defence. According to the learned counsel for the appellant, the case of the appellant clearly fell within the purview of the appellant’s right of private defence.

5. The learned counsel for the appellant also took the alternative plea that in case it is not so held, then, in any event, since the incident took place in the course of a sudden fight and in the heat of the quarrel and without the appellant taking any undue advantage or having acted in a cruel or unusual manner, the case would be only one of culpable homicide not amounting to murder and, therefore, instead of being convicted under Section 302 IPC, the appellant could, at best, have been convicted under Section 304 Part II.

6. The learned counsel for the appellant took us through the testimonies of the witnesses as also through the impugned order.

7. The learned counsel appearing on behalf of the State supported the reasoning adopted by the trial court and submitted that the trial court was not in error in concluding that the plea of private defence was not substantiated by the appellant and, in any event, the appellant Mahavir Singh had exceeded his right of private defence. She submitted that the appellant had been correctly convicted under Section 302 IPC for having committed the murder of Virender.

8. Having heard the counsel for the parties and having examined the record, we do not find ourselves to be in agreement with the view taken by the trial court. The plea taken by the appellant of right of private defence has been established by the appellant. We say this because on going through the testimonies of PW-2 and PW-3, we find that both of these witnesses have admitted that they were armed with dandas and that they had inflicted danda blows on both Mahavir Singh and Jogender Singh as well as their mother Mallo Devi. In the course of cross-examination, PW-3 (Ranbir Singh) has admitted that he, Ram Kumar (PW-1) and his father [Balbir Singh (PW-2)] had dandas in their hands. He also stated that Virender was holding a hockey stick in his hand and that the quarrel took place for about 4-5 minutes. He admitted that he inflicted danda blows upon Jogender and Mahavir.

It is also stated by him in his cross-examination that it was correct that after this fight, both Mahavir and Virender had fallen at the spot. He also stated in his cross-examination that Mallo Devi had received head injuries on account of danda blows and that she was bleeding from her head and the blood had stained her clothes. He reiterated that Mahavir Singh had received injuries and had fallen down on the spot and that he was removed by the police.

9. PW-2 (Balbir Singh) also stated that he inflicted a danda blow on the person of Mahavir Singh on his head and that another danda blow had hit him on his mouth. Of course, he said that Jogender gave a knife blow on his right foot. But, this fact has not been believed by the trial court.

10. From these statements, it is clear that both Jogender and Mahavir alongwith their mother Mallo Devi were at the receiving end of the danda blows and the blows of a hockey stick, which was in the possession of Virender. The question that arises at this stage is as to whether Mahavir could be said to have exercised his right of private defence.

11. This much is clear that Mallo Devi was unarmed and that she was about 50 years of age. It is also clear from the evidence on record and the findings of the trial court that Jogender was also apparently unarmed as the knife which he is alleged to have been armed with was never recovered. Insofar as the appellant Mahavir Singh is concerned, there is the allegation on the part of the prosecution that he was armed with a knife and that the fatal injury on Virender was inflicted by him using the said knife. However, we find that the story of the knife in the hands of the appellant Mahavir is not established.

We say this because we find that the same knife is said to have been recovered between 5 and 6 p.m. on the same day, i.e., on 07.12.1985, in the presence of PW-2 (Balbir Singh), PW-3(Rambir Singh) and ASI Ram Pat. Insofar as the last of the three alleged recovery witnesses is concerned, for reasons best known to the prosecution, he was not produced as a witness. PW-2 (Balbir Singh) and PW-3 (Rambir Singh), apart from being involved in the quarrel and, therefore, having the tinge of being interested witnesses, were not in a position to witness the recovery.

This is so because PW-2 (Balbir Singh), who was injured, was in the hospital at 5.00 p.m. as recorded in his MLC [Exhibit PW-10/B] and, as per his own statement, which was elicited from him in his cross-examination, he was discharged from the hospital at 9.00 p.m. This in itself belies the statement that he was a witness to the recovery of the knife which was said to have been effected between 5-6 p.m. Insofar as PW-3 (Rambir Singh) is concerned, he, also, was in hospital at about 3.30 p.m. This is evident from the MLC [Exhibit PW-10/A]. However, there is no evidence with regard to the time of his discharge from the hospital. His presence is also doubtful insofar as the alleged recovery of the knife is concerned.

  12. We may also point out that as per the testimonies of the prosecution witnesses themselves, which we have referred to above, danda blows were inflicted on the appellant Mahavir and that as a result thereof he fell on the ground. In fact, PW-2 (Balbir Singh) states categorically that Mahavir Singh had received injuries as a consequence of danda blows on his mouth and on his head and as a result whereof, he was bleeding from his mouth.

13. It is apparent that as a result of the several danda blows inflicted on the appellant Mahavir Singh, he fell on the ground and was thereafter immediately taken to hospital. Thus, where was the occasion for the appellant Mahavir Singh, who was badly injured, to have disposed of the knife in the bushes from where it was later on, allegedly, recovered at the instance of Mahavir Singh ? It is for this reason also that the recovery of the knife [Exhibit P-1] at the instance of the appellant Mahavir Singh is in serious doubt.

14. If this be the state of affairs, then it is clear that on the fateful day, Mallo Devi was unarmed, so was Jogender as also the appellant Mahavir. The situation, therefore, appears to be in consonance with what has been set up by the appellant Mahavir Singh in his statement under Section 313, CrPC.

It is apparent that a quarrel had ensued for whatever reasons on 07.12.1985 between Mallo Devi and Jogender on the one hand and Virender, PW-2 (Balbir Singh) and PW-3 (Ranbir Singh) on the other. While PW-2 and PW-3 admittedly were armed with dandas and the said witnesses have stated that Virender was armed with a hockey stick, the other party, namely, Mallo Devi and Jogender were unarmed. They were being inflicted danda blows by the said Virender, Balbir and Ranbir. It is at this stage that the appellant Mahavir entered the scene of occurrence. He first tried to save his mother and brother from the said danda blows, but he himself was at the receiving end of the danda blows on his head and mouth.

Therefore, left with no alternative, he took an iron patti (strip) from a cycle repair shop which was just about 20-25 paces away and indiscriminately started waiving the same in an attempt to dispel the attackers. While doing so, he inflicted injuries on the deceased Virender who succumbed to those injuries on the spot. PW-9 (Dr L.T. Ramani), in his cross-examination, admitted that the injuries inflicted upon the deceased Virender were also possible with an iron strip with a sharp edge. The four external injuries, which were noted by Dr L.T. Ramani in the course of post mortem examination were as under:-

“External Injuries:-

1. An abrasion ½” x ½” on the right side of forehead;

2. Incised stab wound 2.2 cm. x 1 cm. on the left side front of chest;

3. Incised wound 2.5 cm. X 1 cm. present just below the left nipple.

4. Small incised wound 0.5 x 0.3 cm. on the medial wall of right axilla.

15. In his opinion, Dr L.T. Ramani stated that the injury numbers 2-4 were caused by a sharp edged weapon and that injury No.1 was caused by some blunt force and that all the injuries were ante mortem in nature.

He further stated that injury number 3 was sufficient, in the ordinary course of nature, to cause death while there is no dispute with the post mortem report (Exhibit PW-9/A), the defence has been able to elicit the answer from Dr L.T. Ramani that the injuries were also possible with an iron strip with a sharp edge and, therefore, the possibility of the injury having been caused in the manner suggested by the appellant cannot be ruled out.

16. We may also point out the nature of the injuries which were suffered by the appellant’s mother Mallo Devi. This is apparent from the MLC [Exhibit PW-10/C]. The injuries recorded in the said MLC are as under:-

“Injuries:-

1. Laceration 6 cms size on right occipital region involving skin and fascia;

2. Baggy swelling left parietal region;

3. Pain tenderness left lower ribs;

4. Laceration 1 mm size c/o swelling left orbital margin;

5. Swelling just above left elbow on posterior aspect of arm.”

From the testimonies of PW-2 and PW-3 themselves, it is clear that serious injuries were also received by the appellant as well as his brother Jogender. Of course, injuries were also received by PW-2 and PW-3.

17. Section 96 IPC stipulates that nothing is an offence which is done in the exercise of the right of private defence. Section 97 IPC provides that every person has a right, subject to the restrictions contained in Section 99, to, inter alia, defend his own body and the body of any other person, against any offence affecting the body.

Section 99 IPC further stipulates, inter alia, that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.

It also stipulates the extent to which the right of private defence may be exercised. Specifically, it is provided that the right of private defence in no case extends to the inflicting of more harm than is necessary to inflict for the purposes of defence.

18. As per Section 100 of the IPC, the right of private defence of the body extends, under the restrictions mentioned in Section 99, to the voluntarily causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right is, inter alia:-

1) “Such an assault, as may reasonably cause the apprehension that death will otherwise be the consequence of such assault”;

2) “Such an assault, as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault.”

19. The Supreme Court, in the case of Mohammad Khan & Others v. The State of Madhya Pradesh: 1971 (3) SCC 683, observed as under:-

“When enacting Sections 96 to 106 of Indian Penal Code, excepting from its penal provisions, certain classes of acts, done in good faith for the purpose of repelling unlawful aggression, the legislature clearly intended to arouse and encourage the manly spirit of self-defence amongst the citizens, when faced with grave danger. The law does not require a law-abiding citizen to behave like a coward when confronted with an imminent unlawful aggression. As repeatedly observed by this Court there is nothing more degrading to the human spirit than to run away in face of danger: G.V.S. Subramanyam v. State of Andhra Pradesh: AIR 1970 SC 1079. The right of private defence is thus designed to serve a social purpose and deserves to be fostered within the prescribed limits.”

20. In Yogendra Morarji v. State of Gujarat: 1980 (2) SCC 218, the Supreme Court, while considering the question as to whether the death caused by the accused was in exercise of his right of private defence, held:-

“13. The Code excepts from the operation of its penal clauses “large classes of acts done in good faith for the purpose of repelling unlawful aggression but this right has been regulated and circumscribed by several principles and limitations”. The most salient of them concerning the defence of body are as under: firstly, there is no right of private defence against an act which is not in itself an offence under the Code; secondly, the right commences as soon as – and not before – a reasonable apprehension of danger to the body arises from an attempt or threat to commit some offence although the offence may not have been committed and it is coterminous with the duration of such apprehension (Section 102). That is to say, right avails only against a danger imminent, present and real; thirdly, it is a defensive and not a punitive or retributive right.

Consequently, in no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of the defence (Section 99). In other words, the injury which is inflicted by the person exercising the right should be commensurate with the injury with which he is threatened. At the same time, it is difficult to expect from a person exercising this right in good faith, to weigh "with golden scales" what maximum amount of force is necessary to keep within the right.

Every reasonable allowance should be made for the bona fide defender "if he with the instinct of self-preservation strong upon him, pursues his defence a little further than may be strictly necessary in the circumstances to avert the attack." It would be wholly unrealistic to expect of a person under assault, to modulate his defence step by step according to the attack; fourthly, the right extends to the killing of the actual or potential assailant when there is a reasonable and imminent apprehension of the atrocious crimes enumerated in the six clauses of Section 100. For our purpose, only the first two clauses of Section 100 are relevant.

The combined effect of these two clauses is that taking the life of the assailant would be justified on the plea of private defence; if the assault causes reasonable apprehension of death or grievous hurt to the person exercising the right. In other words, a person who is in imminent and reasonable danger of losing his life or limb may in the exercise of right of self-defence inflict any harm, even extending to death on his assailant either when the assault is attempted or directly threatened.

This principle is also subject to the preceding rule that the harm or death inflicted to avert the danger is not substantially disproportionate to and incommensurate with the quality and character of the perilous act or threat intended to be repelled; fifthly, there must be no safe or reasonable mode of escape by retreat, for the person confronted with an impending peril to life or of grave bodily harm, except by inflicting death on the assailant; sixthly, the right being, in essence, a defensive right, does not accrue and avail where there is "time to have recourse to the protection of the public authorities." (Section 99).”

21. In the context of the settled position in law, we are of the view that the appellant Mahavir had caused the death of Virender in exercise of his right of private defence. Let us now recall the scene at the time of occurrence. When the appellant Mahavir arrives, he finds that his mother, who is an unarmed 50-years old lady, is being inflicted danda blows and that his brother Jogender is also unable to protect her because he is also at the receiving end of the danda blows as well as hockey stick blows.

All the same, Mahavir attempts to save his mother and his brother, but he also receives hits on his head from the dandas as well as the hockey sticks, which are in the possession of PW-2 (Balbir Singh), PW-3 (Ranbir Singh) and the deceased Virender. If he did not do anything further, the assault on his mother and brother at the hands of Balbir Singh, Ranbir Singh and Virender would have continued.

As has been noticed above, most of the danda blows were directed towards the head and by no stretch of imagination, can it be said that the danda blows and the hockey stick blows inflicted on the head of a person would not cause a reasonable apprehension in the minds of another that death may, in all likelihood, result or, at least, in some grievous hurt.

Therefore, it is quite natural for a person, who is placed in the position of the appellant Mahavir Singh, to do something in order to save the life of his mother and brother.

As observed in Mohammed Khan (supra), the law does not require a law-abiding citizen to behave like a coward when confronted with an imminent unlawful aggression. The only thing that Mahavir Singh could lay his hands upon was an iron patti which he picked up from the cycle repair shop which was about 20-25 paces away. It must be remembered that the story of recovery of the knife has not been established. In these circumstances, the case of the appellant clearly falls within the said provisions of law and it must be said that the appellant Mahavir inflicted the fatal injury on Virender in exercise of his right of private defence which extended to the causing of death of Virender.

22. We must also point out that the standard of proof required when an accused sets up a plea of private defence is different from the standard of proof required of the prosecution in bringing home its charge of guilt. Section 105 of the Indian Evidence Act, 1872 reads as under:-

“105. Burden of proving that case of accused comes within exceptions - When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances While examining the principles governing the burden of proof where the accused sets up a plea of private defence, the Supreme Court in Yogender Morarji (supra), observed as follows:-

“15. … In other words, even under Section 105, the standard of proof required to establish those circumstances is that of a prudent man as laid down in Section 3, Evidence Act. But within that standard there are degrees of probability, and that is why under Section 105, the nature of burden on an accused person claiming the benefit of an Exception, is not as onerous as the general burden of proving the charge beyond reasonable doubt cast on the prosecution. The accused may discharge his burden by establishing a mere balance of probabilities in his favour with regard to the said circumstances. 16.

The material before the Court to establish such a preponderance of probability in favour of the defence plea may consist of oral or documentary evidence, admissions appearing in evidence led by the prosecution or elicited from prosecution witnesses in cross-examination, presumptions and the statement of the accused recorded under Section 313 of the Code of Criminal Procedure, 1973.”

A similar view is expressed in Partap v. State of Uttar Pradesh: (1976) 2 SCC 798 in the following manner:-

  “14. We have carefully scrutinised the judgments of the courts below. In our opinion, their finding in regard to the plea of self-defence is clearly erroneous. They appear to have overlooked the distinction between the nature of burden that rests on an accused under Section 105, Evidence Act to establish a plea of self-defence and the one cast on the prosecution by Section 101 to prove its case. It is well settled that the burden on the accused is not as onerous as that which lies on the prosecution. While the prosecution is required to prove its case beyond a reasonable doubt, the accused can discharge his onus by establishing a mere preponderance of probability.” 23.

The appellant has been able to establish a preponderance of probabilities in favour of the plea of private defence and this can be easily discerned from the admissions elicited from prosecution witnesses in cross-examination and other material on record. In our view, the trial court fell in error in holding that although the version of the appellant was probable, he had, however, exceeded his right of private defence. Consequently, we set aside the impugned judgment and order on sentence insofar as the present appellant is concerned. The appellant is acquitted of all charges. As the appellant is on bail, his bail bond stands discharged and the surety in respect thereof also stands discharged.

The appeal is allowed.