Paragraph numbers below are the court’s original numbering, recovered from the source text.
18. The learned counsel for the appellant strenuously urged that the incident did not occur in the manner suggested by PW- 1, PW-11 and PW-13. He submitted that as a matter of fact Balwan (deceased), PW-1, PW-11 and PW-13 had come armed with lathies to Ram Sarup's Gher and started inflicting lathi blows RANBIR SINGH & ORS. V. STATE OF HARYANA [R.M. LODHA, J.] to A-5, A-6, A-7 and A-8. To protect themselves, in their right of A private defence, A-1, A-2, A-3 and A-4 inflicted injuries to Balwan and unfortunately that resulted in his death. Learned counsel submitted that accused had no intention whatsoever to cause his death. The learned counsel would submit that at the highest, A-1, A-2, A-3 and A-4 exceeded their right of private defence and for that they may be liable for culpable homicide not amounting to murder. Learned counsel submitted that the trial court as .well as the High Court failed to appreciate the defence version in right perspective which was apparent from the suggestions put to PW-1, PW-11 and PW-13 in their cross c examination as well as in the statement of the accused under Section 313 Cr.P.C. In the alternative, he submitted that the case is covered by Exception 4 to Section 300.
19. The controversy before us is in narrow compass and that is whether the accused have been able to probablise that D the death of Balwan occurred in exercise of their right of self- defence and whether they exceeded that right.
20. Initially, on September 26, 1990, some argument took place between A-1 and PW-12 with regard to taking out the buffalos from canal; A-1 pushed PW-12 in canal water. PW-12 went home crying. Then there was altercation later in the evening between PW-1 and A-1. A-1 with the help of A-2 and A-5 is said to have inflicted some injuries to PW-1 in that altercation. In this back ground, obviously it was PW-1 and his family members who had an axe to grind against A-1, A-2 and A-5 and not the accused party. Two days later, on September 28, 1990, the incident occurred just out-side the Gher of A-6. The prosecution case is that A-1 and Balwan were returning after answering the call of the nature and when they were about to take turn to the street to their house, A-1 and A-2 armed with axe and jailwa G respectively and A-3 and A-4 armed with lathies surrounded Balwan and after exhorting him, A-1 gave an axe blow on the head of Balwan; A-2 also gave blow to Balwan on his head from log-side of jailwa and A-3 and A-4 gave lathi blows.
The prosecution case about commencement of incident appears to A be little doubtful. In our opinion, the prosecution has not come out with truthful version as to how the incident commenced. This is so because, according to PW-1, he was ahead of Balwan by 50 paces. If A-1, A-2, A-3 and A-4 were aggressors, they would have attacked PW-1 as he had reached Gher of A-6 first and B Balwan was about 50 paces away from him. A-1, A-2, A-3, and A-4 had no direct quarrel with Balwan. Altercation was exchanged between A-1 and PW-1 two days before. Why should have they spared PW-1? The prosecution version is, thus, not in accordance with human probabilities. On the other hand, the c defence version is that PW-1, PW-11 and PW-13 and Balwan were armed with lathies; they came to the Gher of Ram Sarup (A-6) and started assaulting A-5, A-6, A-7 and A-8 and in their self-defence they attacked assailants and as a result of which Balwan died.
That A-5, A-6, A-7 and A-8 sustained multiple 0 injuries in the incident is admitted by prosecution. The prosecution sought to explain the injuries on A-5, A-6, A-7 and A-8 by submitting that PW-1, PW-11 and PW-13 snatched lathies from A-3 and A-4 in their self-defence and gave lathi blows to A-5, A-6, A-7 and A-8. However, PW-11 in his cross examination stated that he did not snatch any lathi from A-3 and E A-4. On a careful consideration of the cross-examination of PW- 1, PW-11 and PW-13, the possibility of the complainant party being aggressors cannot be ruled out. The defence has been able to probablise that complainant party attacked first. As a matter of fact, A-5 received six injuries and few of these injuries F were grievous. A-8 sustained eight injuries while A-7 received nine injuries some of which were grievous. A-6 also received injuries. When we observe this, we are not oblivious of the fact that number of injuries on the accused side by itself may not be sufficient to establish right of private defence.
21. The Court should take an overall view of the case and if a right of self-defence is made out from the evidence on record, that right should not be construed narrowly because the right of self-defence is a very valuable right and it has a social purpose. ( Vidya Singh v. State of Madhya Pradesh RANBIR SINGH & ORS. V. STATE OF HARYANA [R.M. LODHA, J.]
22. The aforenoticed statement of law exposited in Vidya Singh 1 has been reiterated by this Court in \/. Subramani and Another v. State of TN. . In \/. Subramani, this Court went on to observe: " …. Situations have to be judged from the subjective point B 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 necessary was used in the prevailing circumstances on the spot it would be inappropriate, as c held by this Court, to adopt tests by detc:ched objectivity which would be so natural in a courtroom, or that which would seem absolutely necessary to a perfectly cool bystander. The person facing a reasonable apprehension of threat to himself cannot be expected to modulate his D defence step by step with any arithmetical exactitude of only that much which is required in the thinking of a man in ordinary times or under normal circumstances."
23. The learned counsel for the appellants has not set up before us the right of private defence as a total defence. His whole emphasis was with reference to Exception 2 to Section 300 that reads as follows:- "Exception 2. – Culpable homicide is not murder if the offender, in the exercise in good faith ofthe right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he. is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence." G
24. The existence of good faith is a must before the accused claims ben~fit of this exception. While acting in good 1 1971 (3) sec 244 2 (2005) 1 o sec 358 A faith, if the accused has exceeded the right of self-defence and caused death of a person without pre-meditation and further he had no intention to causing more harm than was necessaiy for the purpose of the defence although in fact more harm was caused, the benefit of Exception 2 to Section 300 may be B available if the accused was not the aggressor.
25. The burden of proving self-defence is always on the accused but it is not as onerous as the one which lies with the prosecution. Such burden can be discharged by probablising the defence. The accused may discharge his onus by C establishing a mere preponderance of probabilities either by laying basis for that plea in the cross examination of prosecution witness or by adducing defence evidence.
26. The High Court and the trial court in the instant case, D failed to consider the plea of self-defence set up by the accused in right perspective. Having considered the matter thoughtfully, and in what we have discussed above, we are satisfied that the accused have been able to make out a case for the benefit of Exception 2 to Section 300.
27. The appellants are, thus, held guilty of the offence punishable under Section 304 Part I read with Section 34 IPC. Their conviction under Section 302 read with 34 IPC is altered to Section 304 Part I read with Section 34 IPC.
28. We are informed that the appellants have already F suffered imprisonment of almost nine years. In the circumstances, the sentence undergone, for the offence punishable under Section 304 Part I IPC, shall meet the ends of justice. Their conviction and sentence under other offences is maintained.
29. The appeal is, accordingly, allowed in part. The appellants be released forthwith, if not required in any other offence. K.K.T. Appeal partly allowed.