Ram & Others Vs. State of Rajasthan
 Insc 102 (28
Sinha & Dalveer Bhandari Dalveer Bhandari, J.
appeal is directed against the judgment dated 04.02.2002 in Criminal Appeal
No.826 of 2001 passed by the High Court of judicature for Rajasthan at Jodhpur.
facts, which are necessary to dispose of this appeal are recapitulated as under:-
The land measuring 21 bighas is located in village Bhinan, Tehsil Taranagar and
the ownership of the same was recorded in the name of Smt. Chhoti Devi w/o Budh
Singh Rajput and after her demise, the land was transferred in the name of Balu
accused, Nanuram submitted an application before the Tehsildar, Taranagar and
disclosed that he had bought the said land on the basis of agreement to sell
from Smt. Chhoti Devi at a consideration of Rs.1200/- and he is in possession
of the land and is cultivating the same. It was alleged that the transfer in
the name of Balu Singh had been wrongly recorded in the revenue records. The Tehsildar,
after some enquiry cancelled the entry of transfer recorded in the name of Balu
On 13th June, 1999 at about 10 a.m., the complainant party consisting of Amar Singh PW4, his
father Balu Singh (since deceased), Bahadur Singh PW8, Nanuram Nai PW1 and Prithvi
Singh PW17 went to cultivate Khasra No.512 situated in village Bhinan Tehsil, Taranagar
District Churu. At that time, the accused persons were not there but on
learning about the presence of the complainant party in Khasra No. 512 around
12 noon on the same day, the accused party consisting of Nanuram
accused-appellant along with the acquitted 6 persons came from the side of
village, armed with gandasa, lathis and axes and attacked the members of the
complainant party and caused serious injuries to Amar Singh PW4, Nanuram Nai
PW1 and Balu Singh. Balu Singh succumbed to those injuries in the hospital on
the same day at 6 p.m. Amar Singh PW4 lodged the first
information report. The accused persons were apprehended and on their voluntary
disclosure statements, lathis, gandasa and axes were recovered and after usual
examination, they were charged under section 302 read with sections 149, 148
and 323 IPC.
accused-appellants in their statements under section 313 of the Code of
Criminal Procedure denied all the incriminating evidence and pleaded that they
were in possession of the agricultural land and the complainant party wanted to
dispossess them forcibly. In the process of protecting the possession of their
land, a scuffle between the parties took place. Amar Singh PW4 and Balu Singh
from the side of the complainant party received injuries and Gopiram from the
side of accused appellants also received injuries.
to the members of the complainant party, they were totally unarmed at the time
of the incident and the accused persons who were armed with lathis, gandasa and
axes had inflicted serious injuries on them. The injuries on the person of Balu
Singh were medically examined. The doctor found the following external
wound 6 cm x 1 cm x bone deep on vertex of skull,
wound 5 cm x bone deep in the right frontal prominence region,
wound 3 cm x 1 cm x bone deep on occipital region of head and
abrasions on right middle leg, left knee and posterior region of left leg.
the aforesaid injuries were found to have been caused with blunt weapon and
x-ray was advised in respect of three lacerated wounds.
post-mortem of Balu Singhs body, it was revealed that apart from abrasions,
three lacerated wounds, haematoma was present and the fracture of bone was
detected. The brain was squeezed. In the opinion of doctor, cause of death of Balu
Singh was shock due to aforesaid three lacerated injuries on his person.
head of Amar Singh four lacerated wounds on left parietal region, middle of
forehead, right leg and two other lacerated wounds and middle region of left
leg were found by the doctor. According to the doctor, these injuries were
caused by a blunt weapon.
lacerated wound on occipital region of head, upper left near ear region
respectively and contusion on left shoulder were found. All the above three
injuries were caused by a blunt weapon. Gandasa, lathis and other weapons of
offence were recovered at the instance of the accused appellants. Blood-stained
clothes of the deceased Balu Singh were seized by the police and clothes, earth
etc. were sent to Forensic Laboratory for examination. In the serological
examination human blood was detected in the blood-stained earth and on the
deceaseds shirt, dhoti and baniyan, however, no blood was found on the
weapons recovered by the police. In the formal investigation of the case, no
case was made out against Sri Chand, Dula Ram, Lilu Ram and Pappu and
charge-sheet against the remaining 11 accused persons was filed in the court of
the learned Judicial Magistrate, Taranagar. On committal, the case was sent to
the Court of Sessions.
prosecution, in order to support and strengthen its case has examined 25
witnesses and placed reliance on 78 documents on record. The statements of the
accused persons were recorded under section 313 Cr.P.C. wherein the accused
denied the prosecution version and claimed themselves innocent and asserted
that a false case has been made out against them. It was asserted by the
appellants that Nanuram and Kashiram bought the disputed land from Smt. Chhoti Devi
through agreement to sell dated 23.4.1965 and since then Nanuram has been in
possession and was paying land revenue. It was further submitted that on
13.9.1999, on the basis of the information received that Balu Singh and his
sons along with other 15-20 persons went to their field (Khasra No. 512) on a
tractor with the intention to take forcible possession of the field by
cultivating it. About 100-150 people of village Bhinan went to stop them from
doing so. They were armed with variety of weapons. They inflicted serious
injuries on Amar Singh and Balu Singh.
has produced DW1 Dr. Haleef, DW2 Mahender Singh and DW3 Nanuram. In the
documentary evidence, extracts of statements of witnesses Nanuram, Mohan Kunwar,
Amar Singh, Bhawan Singh, Moti Ram Patwari, Bhanwar Singh and written report by
Dr. Mahesh Panwar to the SHO Police Station Taranagar, letter of SHO and injury
report of Gopiram and copies of traced out site plans have been produced.
prosecution mainly relied on PW2 Lal Chand, PW5 Het Ram, PW6 Lilu Ram, PW7 Moman
Ram, PW12 Gulab Singh, PW13 Moti Ram, PW14 Manohar Lal and PW23 Pala Ram,
to the investigating officer, the accused- appellants were in possession of the
field where the occurrence took place. The complainant party went to this field
with the intention to take its possession. The members of the complainant party
were asked not to ply the tractor on the field. Despite the resistance the
field was cultivated by the complainant party. On learning that the complainant
party was cultivating Khasra No.512, the accused appellants in a group of 15-20
people fully armed with different weapons, reached the said Khasra and attacked
the complainant party.
case of the appellants as culled out from evidence is that the accused
appellants were compelled to use force in order to protect the lives and
property and their case is fully covered by the right of private defence. In
this view of the matter, presence of the accused appellants cannot be doubted.
entire evidence on record had been scrutinized in detail by the learned
Additional Sessions Judge. On evaluation of the entire evidence it has been
fully established by the learned Additional Sessions Judge that the fatal
injuries were inflicted by Kashiram and other serious injuries were caused by Dharam
Pal, Jagdish and Rupa Ram on the persons of Balu Singh and Amar Singh in
furtherance of their common object of killing the members of the complainant
trial court acquitted six accused and convicted five accused appellants.
the analysis of the evidence by the trial court, it is abundantly clear that
the accused appellants were in possession of Khasra No. 512. The complainant
party had gone to cultivate the said Khasra at 10 a.m. on 13th
June, 1999. At that
time, the accused appellants were not there but on learning that the
complainant party was cultivating the field, they reached there armed with
varieties of weapons and caused serious injuries on the members of the
complainant party. Admittedly, the members of the complainant party were
totally unarmed. The appellants were responsible for causing fatal injury on Balu
Singh and other serious injuries on Amar Singh and Nanuram. According to the
findings of the Sessions Court, the accused appellants had exceeded the right
of private defence.
was convicted under Section 304 Part-II and was sentenced to 5 years rigorous
imprisonment. Other 4 accused, namely, Dharam Pal, Jagdish, Rupa Ram and Om Prakash
inflicted injuries on Amar Singh and Nanuram were convicted under Section 304
Part-II read with section 149 IPC and they were also sentenced to 5 years
rigorous imprisonment. They were also convicted under section 323 IPC.
High Court again examined the entire evidence and came to a clear conclusion
that the accused appellants had exceeded in their right of private defence.
They caused serious injuries to Balu Singh which proved fatal. They also caused
serious injuries to Amar Singh and Nanuram. Injuries of such serious nature
were totally unwarranted because the members of the complainant party were
finding of the High Court regarding accused appellants private defence
reads as under:- Therefore, the learned trial court has rightly held that
the accused persons have exceeded their right of private defence of
property. The High Court also came to the conclusion that in the facts and
circumstances the trial court has correctly evaluated the entire evidence on
record and has taken a very lenient view. The High Court did not find any
mitigating circumstance to interfere with the quantum of sentence.
appellants aggrieved by the said judgment of the High Court have preferred this
appeal before this court.
submitted by the learned counsel appearing for the appellants that the High
Court failed to appreciate that the disputed land was in possession of the
accused persons and the complainant party came to their field to dispossess
them and their acts, if any, are fully covered by the right of self defence. It
is also submitted that the appellants had filed a suit against the complainant
party prior to this incident and an injunction was granted against the
complainant party by the Revenue
Court on 10.5.1999
and it was found that the accused appellants were in possession of the disputed
appellants also submitted that it is a case of over implication because of
previous enmity. According to the appellants, since they were in possession of
the land in dispute, therefore, no offence under section 304 Part-II IPC can be
made out against them.
have heard the learned counsel for the appellants and the State. We have also
perused the judgment of the trial court and the record of the case. The
Sessions Court and the High Court found that the appellants were in possession
of Khasra No.512 and the complainant party at about 10 a.m. on 13th
June, 1999 went to
cultivate Khasra No.512. The appellants were not there. The appellants learnt
that the members of the complainant party were cultivating the said field, the
accused appellants armed with gandasa, lathis and axes came to the field and
assaulted the members of the complainant party when they were unarmed.
Appellant Kashiram inflicted gandasa blow on Balu Singh from the reverse side
and that injury proved fatal. The gandasa has been recovered at the instance of
Kashiram. According to the report of the Chemical Examiner, human blood was
detected from the blood-stained clothes of the deceased. The earth collected
from the spot also contained human blood. Since the appellant Kashiram did not
use the front side of gandasa, therefore, the trial court instead of convicting
him under section 302 IPC convicted him under section 304 Part-II IPC. In view
of our finding that the appellants were in possession of Khasra No.512 and the
appellants had gone to take back possession of Khasra No.512 from the members
of the complainant party, had inflicted fatal blow on Babu Singh and other
serious injuries on the members of the complainant party.
question which arises for our adjudication is that in the facts and
circumstances of this case whether the accused appellants are protected by the
right of private defence as enumerated by section 96 of the Indian Penal Code.
96 to 106 deal with various facets of the right of private defence. Before
determining the controversy in this case, we deem it proper to deal with these
provisions in brief.
96 IPC reads as under:
Things done in private defence.- Nothing is an offence which is done in the
exercise of the right of private defence. Section 97 of IPC gives right to
a person to defend his body and the property. But, this right is subject to
restrictions contained in section 99. Section 99 IPC reads as under:- 99.
Acts against which there is no right of private defence. - 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.
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 the direction of a public servant acting in good faith under colour of his
office, though that direction may not be strictly justifiable by law.
is no right of private defence in cases in which there is time to have recourse
to the protection of the public authorities.
to which the right may be exercised. - The right of private defence in no case
extends to the inflicting of more harm than it is necessary to inflict for the
purpose of defence. The main question that arises for adjudication in this
case is whether the accused appellants had right of private defence and this is
the case of exceeding the right of private defence meaning thereby, inflicting
more harm than it was necessary for the purpose of defence.
100 of the Indian Penal Code deals with a situation when the right of private defence
of the body extends of causing death. The relevant portion of the section reads
as under:- 100 - When the right of private defence of the body extends to
causing death. - The right of private defence of the body extends, under the
restrictions mentioned in the last preceding section, to the voluntary causing
of death or of any other harm to the assailant, if the offence which occasions
the exercise of the right be of any of the descriptions hereinafter enumerated,
namely:- First. Such an assault as may reasonably cause the apprehension that
death will otherwise be the consequence of such assault;
Such an assault as may reasonably cause the apprehension that grievous hurt
will otherwise be the consequence of such assault;
- xxx xxx xxx Forthly. - xxx xxx xxx Fifthly. xxx xxx xxx Sixthly. - xxx xxx xxx
Section 103 IPC deals with a situation when the right of private defence of
property extends to causing death. Section 103 IPC reads as under:- 103. When
the right of private defence of property extends to causing death. - The right
of private defence of property extends, under the restrictions mentioned in
section 99, to the voluntary causing of death or of any other harm to the
wrong-doer, if the offence, the committing of which, or the attempting to
commit which, occasions the exercise of the right, be an offence of any of the
descriptions hereinafter enumerated, .. Admittedly, the members of the
complainant party were totally unarmed. Even if the case of the accused
appellants is accepted in toto that in order to take back the possession of Khasra
No.512 some injuries were inflicted but the act of the appellants in causing
death cannot be covered by the ambit of section 96 IPC. According to the
findings of courts below, it was clearly a case of exceeding the right of
appellants indeed inflicted more harm than it was necessary for the purpose of defence.
right of private defence is codified in sections 97 to 106 of the Indian Penal
Code and all these sections will have to be read together to ascertain whether
in the facts and circumstances the accused appellants are entitled to right of
private defence or they exceeded the right of private defence.
when all these sections are read together, we get comprehensive view of the
scope and limitation of that right.
position of law is well-settled for over a century both in England and India.
150 years ago in Queen v. Fuzza Meeah alias Fuzza Mahomed (1866) 6 WR (Cr) 89
because of exceeding the right of private defence, the appellants were
convicted, but the sentence of imprisonment was reduced.
case decided during the same period in Queen v. Shunker Sing, Kukhoor Sing
(1864) 1 WR (Cr) 34, the court for exceeding the right of private defence
convicted the accused and reduced the sentence.
court also on several occasions dealt with the cases of exceeding the right of
private defence. In The Munney Khan v. State of Madhya Pradesh (1970) 2 SCC
480, this court for exceeding the right of private defence converted the
sentence of the accused appellant from under section 302 IPC to section 304
IPC. The relevant portion of the judgment reads as under:- Such a right of
private defence is governed by Section 101, I.P.C. and is subject to two
that, in exercise of this right of private defence, any kind of hurt can be
caused, but not death; and the other is that the use of force does not exceed
the minimum required to save the person in whose defence the force is used. In
these circumstances, in the present case, when Zulfiquar was being given fist
blows only, there could be no justification at all for the appellant to stab Reotisingh
with a knife and particularly to give him a blow which could prove fatal by
aiming it on his back. The use of the knife itself was in excess of the right
of private defence and it became much more excessive when the blow with the
knife was given on a vital part of the body which, in the ordinary course of
nature, was likely to cause the death of Reotisingh. From the fact that the
blow was given in the back with a knife an inference follows that the appellant
intended to cause death or at least intended to cause such injury as would, in
the ordinary course of nature, result in his death. In adopting this course,
the appellant would have been clearly guilty of the offence of murder had there
been no right of private defence of Zulfiquar at all.
such a right did exist, the case would fall under the exception under which
culpable homicide does not amount to murder on the ground that the death was
caused in exercise of right of private defence, but by exceeding that right. An
offence of this nature is made punishable under the first part of Section 304,
I.P.C. Consequently, the conviction of the appellant must be under that
provision and not under Section 302 I.P.C.
result, the appeal is partly allowed, the conviction under Section 302, I.P.C.
is set aside, and the appellant is convicted instead under the first part of
Section 304, I.P.C. In view of the change in the offence for which the
appellant is being punished, we set aside the sentence of imprisonment for
life, and instead, award him a sentence of seven years rigorous
imprisonment. In Balmukund & Another v. State of Madhya Pradesh (1981) 4 SCC 432 this court while
dealing with the facts of similar nature converted the conviction from section
302 IPC to section 304 IPC. Relevant observations of the court reads as under:-
In rural landscape even today dispute as to possession of agricultural
land is a part of life.
of land being the only source of survival, emotional attachment apart, the
struggle for survival leads to fierce fight and resort to arms to protect
possession because in the context of tardy slow moving litigative process
actual possession has ceased to be mere nine point in law but it has assumed
alarming proportions. Years upon years spent in legal conundrums moving
vertically through hierarchy of courts coupled with the cost and time to throw
out a trespasser or even a rank trespasser provides occasionally provocation to
resort to physical violence. The use of the firearm used to be spasmodic but it
has started becoming a recurring malady. But right of private defence cannot be
judged step by step or in golden scales.
we accept the finding of the High Court that the appellants had the right of
private defence of person and property meaning thereby that the appellants were
the victims and the complainants were aggressors, but in the facts of the case
they exceeded the same by wielding a firearm, a sentence of 10 years
rigorous imprisonment would appear to us in the facts and circumstances of the
case to be a little bit too harsh.
given our earnest consideration to the question of sentence alone in this case,
we are of the opinion that Balmukund, Appellant 1, should be sentenced to
rigorous imprisonment for five years, and simultaneously the sentence of seven
years under Section 307, Indian Penal Code awarded to Appellants 1 and 2 both
be reduced to three years each. The substantive sentences should run
concurrently. In another case, while dealing with a case of self defence
in Dharam Pal & Others v. State of U.P. 1994 Supp (3) SCC 668, this court
for exceeding the right of private defence instead of convicting the accused
appellant under section 302 read with section 149 IPC, converted the sentence
under section 304 Part-I IPC.
Choudhary v. State of Bihar (1996) 5 SCC 107, this court held that the High
Court erred in holding that the appellants had no right of private defence at
this court upheld the judgment of the Sessions Court holding that since the
appellants had right of private defence to protect their property, but in the
circumstances of the case, the appellants had exceeded their right of private defence
and were, therefore, rightly convicted by the trial court under section 304
Part-I. The court observed that the right of private defence cannot be used to
kill the wrongdoer unless the person concerned has a reasonable cause to fear
that otherwise death or grievous hurt might ensue in which case that person
would have full measure of right of private defence including killing.
have examined the cases of exceeding of the right of private defence. In the
instant case, both the Sessions Court and the High Court came to the conclusion
that the accused appellants were guilty of exceeding the right of private defence
and instead of convicting them under section 302 convicted them under section
304 Part-II along with 149 IPC.
the Sessions Court and the High Court clearly came to the conclusion that the
accused appellants in a group of 15- 20 people armed with variety of weapons
had gone to Khasra No.512 where the complainant party was cultivating. The
accused appellants in order to dispossess the members of the complainant party
attacked them and caused serious injuries to the members of the complainant
party in which Balu Singh died. Admittedly, the members of the complainant
party were totally unarmed. From perusal of the entire evidence on record, it
is abundantly clear that the accused appellants were the aggressor and they
attacked the complainant party when they were totally unarmed. It is settled
legal position that the right of private defence cannot be claimed when the
accused are aggressors particularly when the members of the complainant party
were totally unarmed. This Court in the recent judgment in Bishna alias Bhiswasdeb
Mahato & Others v. State of West Bengal (2005) 12 SCC 657 exhaustively dealt with this aspect of
the matter. The facts of this case are akin to the facts of the instant cases.
In this case, the Court while relying on the earlier judgments of this Court,
clearly came to the conclusion that the right of private defence cannot be
claimed when the accused is an aggressor.
said case, this Court relied on Preetam Singh v. State of Rajasthan (2003) 12 SCC 594. In this case,
the Court clearly held that the appellants were the aggressors, therefore, the
question of the appellants having the right of private defence or exceeding it
does not arise. The plea of private defence is not at all available to the
instant case, the appellants were the aggressor.
inflicted serious injuries on the unarmed complainant party by a variety of
weapons causing the death of Balu Singh and also inflicted serious injuries on
other members of the complainant party.
defence can be used only to ward off unlawful force, to prevent unlawful force,
to avoid unlawful detention and to escape from such detention as held by this
court in Bishnas case (supra). In the said judgment the relevant portion
of Kennys Outlines of Criminal Law and Criminal Law by J.C. Smith and
Brian Hogan have been quoted. We deem it appropriate to reproduce the same.
is natural that a man who is attacked should resist, and his resistance, as
such, will not be unlawful. It is not necessary that he should wait to be
actually struck, before striking in self-defence. If one party raises up a
threatening hand, then the other may strike. Nor is the right of defence
limited to the particular person assailed; it includes all who are under any
obligation, even though merely social and not legal, to protect him. The old
authorities exemplify this by the cases of a husband defending his wife, a
child his parent, a master his servant, or a servant his master (and perhaps
the courts would now take a still more general view of this duty of the strong
to protect the weak). The learned author further stated that self-defence,
however, is not extended to unlawful force:
the justification covers only blows struck in sheer self-defence and not in
revenge. Accordingly if, when all the danger is over and no more blows are
really needed for defence, the defender nevertheless strikes one, he commits an
assault and battery. The numerous decisions that have been given as to the kind
of weapons that may lawfully be used to repel an assailant, are merely
applications of this simple principle. Thus, as we have already seen, where a
person is attacked in such a way that his life is in danger he is justified in
even killing his assailant to prevent the felony.
ordinary assault must not be thus met by the use of firearms or other deadly
weapons In Browne 1973 NI 96 (NI at p. 107] Lowry, L.C.J. with regard to
need to act must not have been created by conduct of the accused in the
immediate context of the incident which was likely or intended to give rise to
that need. As regards self-defence and prevention of crime in Criminal Law
by J.C. Smith & Brian Hogan, it is stated:
self-defence may afford a defence to murder, obviously it may do so to lesser
offences against the person and subject to similar conditions. The matter is
now regulated by Section 3 of the Criminal Law Act, 1967. An attack which would
not justify D in killing might justify him in the use of some less degree of
force, and so afford a defence to a charge of wounding, or, a fortiori, common
assault. But the use of greater force than is reasonable to repel the attack
will result in liability to conviction for common assault, or whatever offence
the degree of harm caused and intended warrants. Reasonable force may be used
in defence of property so that D was not guilty of an assault when he struck a
bailiff who was unlawfully using force to enter D s home.
principles apply to force used in the prevention of crime. The right of
private defence is a very valuable right and it has been recognized in all
free, civilized and democratic societies within certain reasonable limits (see Gottipulla
Venkatasiva Subbrayanam & Others v. The State of Andhra Pradesh & Another
(1970) 1 SCC 235.
in his celebrated book on Crimes (11th Edn.) p.491 has stated:- A man is
justified in resisting by force any one who manifestly intends and endeavours
by violence or surprise to commit a known felony against his person, habitation
or property. In these cases he is not obliged to retreat and not merely to
resist the attack where he stands but may indeed pursue his adversary until the
danger is ended. If and in a conflict between them he happens to kill his
attacker such killing is justifiable. Blackstone [Commentaries Book 4; P.
185] also observed as under:- The party assaulted must, therefore, flee as
far as he conveniently can either by reason of some wall, ditch, or some other
impediment; or as far as the fierceness of the assault will permit him; for it
may be so fierce as not to yield a step, without manifest danger of his life,
or enormous bodily harm; and then in his defence he may kill his assailant
instantaneously. And this is the doctrine of universal justice, as well as of
the municipal law. (Emphasis supplied).
Laws of England, Fourth Edition, Vol.11 pp. 630-631
dealt with self-defence and defence of property. The relevant portion in paras
1180-1181 reads as under:- 1180. Self-defence. A person acting in self- defence
is normally acting to prevent the commission of a crime, as is a person acting
in defence of another. The test to be applied in such cases is now established
to be the same as for cases of prevention of crime, that is the force used in
self- defence or in defence of another must be reasonable in the circumstances
Provided the force used is reasonable a person is entitled to defence not only
himself or a member of his family, but even a complete stranger if the stranger
is subject to unlawful attack by others.
deciding whether the force used was reasonable, all the circumstances may be
considered. The matter is one of fact and not one of law, hence it cannot be
ruled that a person who is attacked must retreat before retaliating. A
persons opportunity to retreat with safety is a factor to be taken into
account in deciding whether his conduct was reasonable, as is his willingness
to temporize or disengage himself before resorting to force. A man is not obliged
to refrain from going where he may lawfully go because he has reason to believe
that he may be attacked, and is not thereby deprived of his right of self-defence.
1181. Defence of property. Where a person in defending his property is also
acting in the prevention of crime then he may use such force as is reasonable
in the circumstances. Where no crime is involved, as where there is merely a
trespass, the same rule of reasonable force in the circumstances is applicable.
If in using reasonable force the defendant should accidentally kill another,
the killing would not amount to murder or man- slaughter. It would not, in
general, be reasonable to kill in defence of property alone, although it has
been held that a man may lawfully kill, a trespasser who would forcibly
dispossess him of his house. In Mohammad Khan & Others v. State of
Madhya Pradesh (1971) 3 SCC 683 in para 11, this court has rightly concluded
that the right of self-defence only arises if the apprehension is unexpected
and one is taken unawares. If one enters into an inevitable danger with the
fullest intimation beforehand and goes there armed to fight out, the right
cannot be claimed.
analysis of the right of private defence as codified in sections 96 to 106 IPC
and the legal position as crystallized by a number of judgments leads to an
irresistible conclusion that the findings of the Sessions Court as upheld by
the High Court in the instant case regarding the appellants exceeding the
right of private defence are wholly erroneous and untenable.
right of private defence is purely preventive and not punitive. This right is
available only to ward off the danger of being attacked; the danger must be
imminent and very real and it cannot be averted by a counter-attack.
view of the facts of this case, the accused appellants did not have the right
of private defence. Therefore, they cannot legitimately claim any benefit by
invoking the principle of right of private defence.
acts of the accused appellants of proceeding to a definite destination with
lethal weapons and thereafter causing serious injuries including fatal injuries
on the unarmed members of the complainant party can never legitimately claim
the benefit of the provisions of the right of private defence. Since the accused
appellants did not have the right of private defence, therefore, the findings
of the courts below regarding their exceeding the right of private defence
cannot be sustained and are accordingly set aside.
there is no appeal by the State against acquittal of the accused appellants
under sections 302 IPC, therefore it is not necessary for us to deal with the
aspect whether their acquittal under section 302 was justified or not.
Sessions Court convicted accused Kashiram under section 304 Part-II and the
other appellants under section 304 Part-II read with section 149 IPC. In the
impugned judgment the High Court has upheld their conviction.
consideration of the peculiar facts and circumstances of the case the
conviction and sentence of the accused appellants as recorded by the courts
below do not warrant any interference. The appeal being devoid of any merit is
accused appellants are directed to surrender forthwith to suffer the remaining