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Biran Singh and Others v State of Bihar

Supreme Court of India
17 October 1974

Case Analysis

Bench Y. V. Chandrachud, R. S. Sarkaria

Where Reported 1974 Indlaw SC 337 ; 1975 (4) SCC 161; 1975 SCC(Cr) 454; 1975
AIR(SC) 87; 1975 (81) CRLJ 44; 1974 CRLR 627

Case Digest Subject: Criminal

Keywords: Indian Penal Code, 1860, Lathi
Summary: Penal Code, 1860, s. 96 - Plea of private defence -
Factors to be considered by Court - Held, injuries received by the
accused, the imminence of threat to his safety, the injuries caused
by the accused and the circumstance whether the accused had time
to have recourse to public authorities are all relevant factors -
Appeal Dismissed.

Cases Citing this Case Hanumantappa Bhimappa Dalavai and Another v State of Karnataka
2009 Indlaw SC 399, 2009 (11) SCC 408, 2009 CRLJ 3045, 2009
(5) KarLJ 644

Arun v State of Maharashtra

2009 Indlaw SC 309, 2009 (2) SCC(Cr) 536, 2009 (4) SCC 615,
2009 CRLJ 2065
Ranveer Singh v State of Madhya Pradesh
2009 Indlaw SC 19, 2009 (2) SCC(Cr) 110, 2009 (3) SCC 384, 2009
AIR(SC) 1658, 2009 CRLJ 1534
Raghbir Singh and Others v State of Haryana
2008 Indlaw SC 1763

Salim and Others v State of Haryana

2008 Indlaw SC 1259, 2008 (12) SCC 705, 2008 AllMR(Cr) 3233,
2008 CRLJ 4327
Satya Narain Yadav v Gajanand and Another
2008 Indlaw SC 1217
Genda Singh and Others v State of Uttar Pradesh
2008 Indlaw SC 1134, 2008 (11) SCC 791, 2008 (3) SCC(Cr) 934,
2008 CRLJ 3618, 2008 (8) JT 123, 2008 (9) Scale 805, 2008 (10)
SCR 553
Narain Singh and Others v State of Haryana
2008 Indlaw SC 674, 2008 (11) SCC 540, 2008 AIR(SC) 2006, 2008
AllMR(Cr) 1404, 2008 CRLJ 2613, 2008 (5) JT 302, 2008 (6) Scale
45, 2008 (6) SCR 74
Krishna and Another v State of Uttar Pradesh
2007 Indlaw SC 691, 2007 (15) SCC 320, 2007 AllMR(Cr) 2921
Ananta Deb Singha Mahapatra and Others v State of West Bengal
2007 Indlaw SC 611, 2007 (13) SCC 374, 2007 AIR(SC) 2524
Shajahan and Others v State of Kerala and Another
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2007 Indlaw SC 656, 2007 (12) SCC 96, 2007 CRLJ 2291
Naveen Chandra v State of Uttranchal
2006 Indlaw SC 858
V. Subramani and another v State of Tamil Nadu
2005 Indlaw SC 169, 2005 (10) SCC 358, 2005 (111) CRLJ 1727
Babulal Bhagwan Khandare and Another v State of Maharashtra
2004 Indlaw SC 1033, 2005 (10) SCC 404
State of Madhya Pradesh v Ramesh
2004 Indlaw SC 972, 2005 (9) SCC 705, 2005 (111) CRLJ 652
James Martin v State of Kerala
2003 Indlaw SC 1161, 2004 (2) SCC 203, 2004 SCC(Cr) 487, 2004
(1) KLT 513, 2004 (2) MhLJ 358, 2004 (2) MPLJ 231

Shriram v State of Madhya Pradesh

2003 Indlaw SC 1384, 2004 (9) SCC 292, 2004 SCC(Cr) 1453, 2004
AIR(SC) 491, 2004 (110) CRLJ 610, 2003 (1) SCW 6535
Laxman Singh v Poonam Singh and Others
2003 Indlaw SC 735, 2004 (10) SCC 94, 2004 SCC(Cr) 1514, 2003
AIR(SC) 3204, 2003 (4) CCR 1, 2003 (4) Crimes 1, 2004 (1) CRJ
62, 2003 (109) CRLJ 4478, 2003 (1) JT 61, 2004 (1) MhLJ 317,
2004 (1) MPLJ 93, 2003 (4) RecentCR 560, 2003 (7) Scale 334,
2003 (1) SCW 4566, 2003 (5) SLT 331, 2003 (10) SRJ 75, 2003 (6)
Supreme 644
Rizan and another v State of Chhatisgarh through The Chief
Secretary, Govt. of Chhatisgarh, Raipur, Chhatisgarh
2003 Indlaw SC 34, 2003 (2) SCC 661, 2003 SCC(Cr) 664, 2003
AIR(SC) 976, 2003 (1) CCR 180, 2003 (2) Crimes 125, 2003 (4)
CRJ 691, 2003 (109) CRLJ 1226, 2003 (1) JCC 264, 2003 (2) JT
191, 2003 (2) RecentCR 662, 2003 (1) Scale 357, 2003 (1) SCW
469, 2003 (1) SLT 469, 2003 (4) SRJ 137, 2003 (1) Supreme 890
Subodh Tewari and Another v State of Assam
1986 Indlaw GUW 22
Vijayadevaraj Urs v G. V. Rao and Others
1982 Indlaw KAR 18, 1982 (2) LLJ 221

Legislation Cited Indian Penal Code, 1860

© 2010 Thomson Information South Asia Pvt Ltd

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Biran Singh and Others v State of Bihar

Supreme Court of India

17 October 1974

Criminal Appeal No. 210 of 1970, decided on October 17, 1974.

The Judgment was delivered by CHANDRACHUD, J. :
CHANDRACHUD, J. for the The three appellants to this appeal are brothers. They were tried
along with the fourth brother, Bankey Singh, under Section 302 read with Section 34, Penal Code
and for other incidental offences. The charge against them was that at about 6 p.m. on February
25, 1965 they committed the murder of one Brahmdeo Rai and caused injuries to two other :
Ram Swaroop Yadav and Anup Rai. All the four accused were acquitted by the learned
Additional Sessions Judge, Monghyr. The appeal filed by the State of Bihar against the order of
acquittal was allowed by the High Court of Patna which convicted the appellant Biran Singh
under Section 302, Penal Code and sentence him to imprisonment for life. The appellant Hirday
Singh was sentenced to a similar term but under Section 302 read with Section 34. The appellant
Hirday Singh was convicted under Section 323 and a sentence of four months was imposed on
him. The fourth brother, Bankey Singh, died during the pendency of the appeal in the High Court.
This appeal by special leave is directed against the judgment of the High Court.
2. On February 25, 1965 the deceased Brahmdeo Rai had gone to see a wrestling bout in a
village called Laraiya Taur along with his elder brother, Anup Rai, and Ram Swaroop Yadav.
While they were returning, they met the appellants and their brother Bankey Singh. the deceased
asked the appellant Biran Singh as to why he was scandalising him and while they were arguing
out their differences, Bankey Singh is alleged to have exhorted Biran Sing to kill Brahmdeo Rai.
The appellants, Hirday Singh and Hiran Singh came in the meanwhile with lathis in their hands.
Biran Singh is alleged to have given a blow with a lathi on the chest of the deceased. Bankey
Singh and Hirday Singh are said to have assaulted the deceased with kicks and slaps. Anup Rai
tied too rescue his brother but he and Ram Swaroop Yadav were also beaten by the appellants.
3. The trial Court acquitted all the four accused on the ground that the first information report was
lodged after a long delay for which there was no satisfactory explanation; that the witnesses
examined by the prosecution in support of its case were partisans of the deceased; that the
witnesses had failed to offer any explanation at all of the injuries received by two of the accused;
that the evidence did not shed sufficient light on the origin of the incident; that the prosecution
story was unnatural and improbable and lastly that Narayan, the son of Anup Rai, though a
material witness was not examined by the prosecution.
4. Learned appearing on behalf of the appellants has taken us through the relevant part of the
evidence of eyewitnesses Sitaram (PW 1), Jivan Bind (PW 2), Borhan Thakur (PW 3), Bandhu
Yadav (PW 4), DOrik Yadav (PW 6), Ram Swaroop Yadav (PW 13) and Anup Rai (PW 14). The
last two were injured during the course of the incident and their presence is not seriously
disputed.
5. It is urged that the trial Court had given weighty reasons in support of the order of acquittal
recorded by it and since two views of the evidence are reasonably possible, the High Court not to
have interfered with the conclusion to which the trial Court had come. Having considered the
evidence of the eyewitnesses and having seen the judgment of the High Court, we are unable to
agree that two views of the evidence are reasonably possible in regard to the part played by the
appellants Biran Singh and Hirday Singh. The High Court has considered each one of the
reasons given by the trial Court in support of its judgment of acquittal and the High Court has
given its own reasons why the view of the trial Court could not be accepted. There is, in our
opinion, no doubt that Biran Singh inflicted a sword-blow on the head of the deceased and Hirday
Singh caused an injury to Anup Rai.
6. The learned Additional Sessions Judge was not inclined to reject the testimony of the
eyewitnesses but the difficulty which he felt in accepting their evidence was that they had
presented before the Court an incomplete story. In paragraph 47 of his judgment the learned
Judge observes that thought it was quite possible that the accused and his partymen were
aggressors it was equally possible that the deceased Brahmdeo Rai was the real aggressor and
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that one of the appellants might have dealt a fatal blow to him after he had assaulted Bankey
Singh and Hirday Singh. This Conclusion is indefensible both on facts and in law. The evidence
of Dr. K. K. Mukherji and Dr. Verma who examined Bankey Singh shows that their injuries were
simple in nature. There could therefore be no justification for any of the appellants to hit
Brahmdeo Rai with a sword on a vital part of the body like the head. The conclusion of the
learned Trail Judge is insupportable in law because what he has found is that after Brahmdeo
Rai assaulted Bankey Singh and Hirday Singh,

"one of the brothers brought out a saif from his home which was nearby and dealt a fatal blow to
Brahmdeo."

On the findings recorded by the learned Judge, Biran Singh and Hirday Singh cannot possibly be
held to have acted in exercise of the right of private defence. Assuming that Brahmdeo Rai had
assaulted Bankey Singh and Hirday Singh, they could not retreat to their house, fetch a sword
and assault Brahmdeo Rai.
7. The learned trial Judge contented himself with the conclusion recorded towards the end of
paragraph 47 of his judgment that it was unsafe to hold "that the party of the accused were
definitely aggressors" which, according to the learned Judge, cast doubt on the version of the
prosecution. Basing himself on this reasoning, the learned Judge gave to the appellants the
benefit of doubt. It may for the purpose of argument be assumed that the appellants were not
aggressors but even on that hypothesis the learned Judge ought to have examined whether they
had acted within the strict bounds of the right of private defence. He did not apply himself to this
question at all. On the contrary, he held in paragraph 49 of his judgment thateven the victims of
aggression may have a chance to inflict severe and mortal injury on the aggressor. The severity
of the injuries received is often a matter of chance. As I have said, the saif or the other sharp
cutting weapon could have been brought by the accused after they were assaulted as their
houses were very near. The comparison of the injuries is, therefore, not conclusive on the point
of the accused being aggressors.
This conclusion is impossible to accept. While considering whether the right of private defence is
available to an accused, it is not relevant whether "he may have a chance to inflict severe and
mortal injury on the aggressor." In order find whether the right of private defence is available to
an accused, the entire incident must be examined with care and viewed in its proper setting. The
injuries received by the accused, the imminence of threat to his safety, the injuries caused by the
accused and the circumstance whether the accused had time to have recourse to public
authorities are all relevant factors to be considered on a plea of private defence. The learned trail
Judge was in error in excusing the sword attack on Brahmdeo Rai by saying that the severity of
the injuries is often a matter of chance. Running to the house, fetching a sword and assaulting
Brahmdeo Rai on his head with that sword are by no means a matter of chance. These acts bear
the stamp of a design.
8. Though, however, there can be no doubt in regard to the guilt of the appellants Biran Singh
and Hirday Singh, the order of acquittal passed by the trial Court in favour of Hiran Singh ought
yo be allowed to stand. Brahmdeo Rai made a dying declaration on the 26th morning and it is
significant that he did not refer to the presence of Biran Singh. Secondly, the allegation is that
Hiran Singh assaulted the deceased with a lathi on his chest. The post-mortem notes show that
there was on lathi injury on the chest. We are unable to agree with the High Court that the lathi
injury may have 'faded' or that it was not noticed by the doctor who conducted the post-mortem
examination. We are also unable to agree that the evidence in regard to the lathi blow given by
Hiran Singh can be said to be corroborated by the inquest report, Column 5 of which says that
there was a swelling on the chest of Brahmdeo Rai. Lastly, it is significant that though Bankey
Singh had received injuries, Hiran Singh had received none. Brian Singh was armed with a sword
and was probably left alone. But if Hiran Singh came to the spot in the company of Bankey Singh
and Hirdy Singh, it is unlikely that those who assaulted two members of this group would have
allowed Hiran Singh to escape unscathed. Thus, there was enough justification for the view of
the trail Court that Hiran Singh was entitled to the benefit of doubt.

9. In the result we dismiss the appeal of Biran Singh and Hirday Singh and allow that of Hiran
Singh. Hiran Singh shall be set at liberty.

© 2010 Thomson Information South Asia Pvt Ltd

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