How to appreciate evidence if in criminal case accused has received injuries and if prosecution fails to explain how accused has sustained injury?

 In Indian criminal law, the failure of prosecution to explain injuries sustained by the accused is a significant circumstance that courts must carefully consider while appreciating evidence. The legal position has evolved through various Supreme Court judgments that have established different theories and approaches.

General Principle

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Important Supreme Court Judgments on Murder

Exception 2: Self defense

 In Yogendra Morarji v. State of Gujarat AIR 1980 SCC 660, the Supreme Court dealt with the extent to which the private defense can be used as hereunder,

“12. Before considering this question in the light of the evidential material on record,it will be worthwhile to remind ourselves of the  general principles embodied in the Penal Code, governing the exercise of the right of private defence.

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How to appreciate evidence if prosecution has suppressed injuries suffered by accused?

 In Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394, this Court considered the effect of suppression of injuries suffered by the accused. Accordingly, it was held that if the injuries on the accused are substantial and to the knowledge of prosecution, a failure to conduct the investigation while denying the same would be fatal especially when a doctor who examined the deceased and the injured accused deposes otherwise. Paragraph 12 of the aforesaid judgement, states thus:
“12. …It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:
“(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.”
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when it is held, as it must be, that the appellant Dasrath Singh received serious injuries which have not been explained by the prosecution, then it will be difficult for the court to rely on the evidence of PWs 1 to 4 and 6, more particularly, when some of these witnesses have lied by stating that they did not see any injuries on the person of the accused. Thus neither the Sessions Judge nor the High Court appears to have given due consideration to this important lacuna or infirmity appearing in the prosecution case. We must hasten to add that as held by this Court in State of Gujarat v. Bai Fatima [(1975) 2 SCC 7] there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. The present, however, is certainly not such a case, and the High Court was, therefore, in error in brushing aside this serious infirmity in the prosecution case on unconvincing premises.

{Para 47}

Supreme Court

JUSTICE SANJAY KISHAN KAUL JUSTICE M.M. SUNDRESH

ARVIND KUMAR @ NEMICHAND & ORS. Vs. STATE OF RAJASTHAN

CRIMINAL APPEAL NO. 753 OF 2017

22nd November 2021

Author: M.M. SUNDRESH, J.

Citation:  2021 ALL SCR (ONLINE) 675

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Whether conviction for rash driving and causing injury is maintainable where driver was facing real threat of imminent death?

 In the present case, the evidence shows that the Applicant did not drive the taxi at higher speed on his own volition. It was the case of the Applicant that he was forced to drive at a high speed by robbers at the point of razor. It is the case of the Applicant that he himself had suffered an injury on his neck caused by razor. The defence witness Dr. Loya has described the injury which was attributable to razor. The Applicant was referred to Dr. Loya by the police themselves. At the relevant time, Dr. Loya was attached to Nair Hospital. The Applicant has sufficiently proved his case on the touchstone of probability. The burden on the Applicant to prove his case was not as heavy as that on the prosecution. Therefore, in my considered view, the Applicant has proved that he was made to drive the taxi at the point of razor and he himself suffered injury on his neck. It is his case that he was under real and reasonable apprehension of suffering grievous injury or even of death at the hands of the culprits who had forcibly entered his taxi. Therefore, it cannot be said that he drove his taxi rashly and negligently on his own volition but he was forced to do so.

20. In the context of the circumstances of this case, Section 106 of the IPC is relevant, which reads thus:

“106. Right of private defence against deadly assault when there is risk of harm to innocent person.--If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk.”

21. Therefore, though in the process four innocent pedestrians have suffered minor injuries, the Applicant cannot be held guilty of causing those injuries. The Applicant was deprived of his free will because of the real threat of imminent death at the hands of the person carrying razor. Therefore, in the facts and circumstances of the case, the Applicant cannot be said to have committed the offences for which he is convicted and sentenced.

In the High Court of Bombay

(Before Sarang V. Kotwal, J.)

Hamza Mohd. Ibrahim Ansari  v. State of Maharashtra 

Criminal Revision Application No. 257 of 2002

Decided on March 29, 2019

Citation: 2019 SCC OnLine Bom 547

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Whether police can file final report saying that no offence is made out against accused considering his right of private defence?

From this provision, it is crystal clear that the an offence either culpable homicide or murder as defined under Sections 299 and 300 of I.P.C. are also subject to the exceptions contained in Chapter IV titled "General Exceptions". Section 96 of I.P.C. declares that nothing is an offence which is done in the exercise of the right of private defence. Section 100 states as to when the right of private defence of body extends to causing of death. Thus, during the course of investigation, if the police officer finds that the act of the accused falls squarely within the ambit of Section 100 of I.P.C. then, he cannot file a positive final report to the effect that an offence either under Sections 302 or 304 I.P.C. has been committed. For arriving at such a conclusion that the act of the assailants falls squarely within the ambit of Section 100 of the Code, during the course of investigation, the police officer is not concerned with Section 105 of the Evidence Act. Section 105 of the Evidence Act deals with proof of exception during trial. It states that it is for the accused to prove that his act would fall under any one of the general exceptions or special exceptions. Since, during investigation, the accused is not called upon to prove any disputed fact, the question of applying Section 105 of the Evidence Act does not arise at all. The argument of the learned counsel for the petitioner in this regard therefore deserves only to be rejected.

IN THE HIGH COURT OF MADRAS

W.P. No. 25743 of 2010

Decided On: 09.02.2016

 P. Pugalenthi Vs. State of Tamil Nadu and Ors.

Coram:

M. Jaichandren and S. Nagamuthu, JJ.

Citation: 2017 CRLJ(NOC)82 Madras

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Leading Supreme Court Judgment on right of private defence

 The right of private defence is contemplated by Section 97 of IPC
which reads as follows:-
“Section 97. Right of private defence of the body and
of property.— Every person has a right, subject to
the restrictions contained in section 99, 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.”
In Darshan Singh vs. State of Punjab and Another (2010) 2 SCC 333
, this court laid
down the following principles which emerged upon the careful consideration
and scrutiny of a number of judgments as follows:-
“58. The following principles emerge on scrutiny of
the following judgments:
(i) Self-preservation is the basic human instinct and
is duly recognised by the criminal jurisprudence of all
civilised countries. All free, democratic and civilised
countries recognise the right of private defence
within certain reasonable limits.
(ii) The right of private defence is available only to
one who is suddenly confronted with the necessity of
averting an impending danger and not of
self-creation.
(iii) A mere reasonable apprehension is enough to
put the right of self-defence into operation. In other
words, it is not necessary that there should be an
actual commission of the offence in order to give rise
to the right of private defence. It is enough if the
accused apprehended that such an offence is
contemplated and it is likely to be committed if the
right of private defence is not exercised.
(iv) The right of private defence commences as soon
as a reasonable apprehension arises and it is
coterminous with the duration of such apprehension.
(v) It is unrealistic to expect a person under assault
to modulate his defence step by step with any
arithmetical exactitude.
(vi) In private defence the force used by the accused
ought not to be wholly disproportionate or much
greater than necessary for protection of the person
or property.
(vii) It is well settled that even if the accused does
not plead self-defence, it is open to consider such a
plea if the same arises from the material on record.
(viii) The accused need not prove the existence of
the right of private defence beyond reasonable
doubt.
(ix) The Penal Code confers the right of private
defence only when that unlawful or wrongful act is
an offence.
(x) A person who is in imminent and reasonable
danger of losing his life or limb may in exercise of
self-defence inflict any harm even extending to death
on his assailant either when the assault is attempted
or directly threatened.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No. 1548 OF 2011

SURESH SINGHAL .V STATE (DELHI ADMINISTRATION) 

Dated:February 02, 2017

Citation:(2017)2 SCC737

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How to appreciate evidence if right of private defence is claimed?

Once the Court came to a finding that the prosecution has suppressed
the genesis and origin of the occurrence and also failed to explain the
injuries on the person of the accused including death of father of the
appellants, the only possible and probable course left open was to
grant benefit of doubt to the appellants. The appellants can
legitimately claim right to use force once they saw their parents being
assaulted and when actually it has been shown that due to such
assault and injury their father subsequently died. In the given facts,


adverse inference must be drawn against the prosecution for not
offering any explanation much less a plausible one. Drawing of such
adverse inference is given a go-bye in the case of free fight mainly
because the occurrence in that case may take place at different spots
and in such a manner that a witness may not reasonably be expected
to see and therefore explain the injuries sustained by the defence
party. This is not the factual situation in the present case.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.416 OF 2016
(Arising out of SLP(Crl.) No. 2301 of 2016)

Bhagwan Sahai V State of Rajasthan 

Dated:June 03, 2016.
SHIVA KIRTI SINGH, J.

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There is no right of private defence against acts done by public servants acting in good faith under colour of his office

The need of self preservation has its root in the doctrine of

necessity.
The right of self defence is therefore basis of necessity and
without such necessity a right to resort thereto does not exist. There are
limits within which the right of private defence can be exercised. The
policemen are public servants. There is no right of private defence against
an act which does not reasonably cause the apprehension of death or of
grievous hurt, if done, or attempted to be done, by a public servant acting
in good faith under colour of his office, though that act may not be strictly
justifiable by law. Thus, when a public officer acts bona fide under colour of
his office, right of private defence cannot be exercised against him though
his act may not be strictly justifiably by law.

IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO. 33 OF 2012

 GIRIDHAR DEU DEVSEKAR, Vs  STATE OF GOA

A.P. LAVANDE &
U. V. BAKRE, JJ.
Dated;
24th June,2013.
Citation;2013 CRLJ(NOC) 561 bombay,Goa

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