Amjad Khan Vs. The State [1952] INSC
16 (20 March 1952)
CITATION: 1952 AIR 165 1952 SCR 567
CITATOR INFO :
R 1957 SC1674 (8) F 1960 SC 67 (7) D 1990
SC1459 (36)
ACT:
Indian penal Code (Act XLV of 1860), ss. 97,
102 and 105 Right of private defence--Reasonable apprehension of death or
grievous hurt.
HEADNOTE:
A communal riot broke out in a town between
some Sindhi refugees and the local Muslims. The trouble started in a locality
where most of the shopkeepers were Sindhis. The goods in the Muslim shops there
were scattered and some Muslims lost their lives. Alarm spread to another
locality where the shops of appellant and his brother (both Muslims) were
situated and the people there, including the appellant, started closing their
shops. The family of the appellant's brother had taken shelter in the
appellant's portion of the building through a hole in the wall between the two
portions of the building in which the two shops were situated. A mob collected
there and approached the appellant's locality and looted his brother's shop and
began to beat the doors of his shop with lathis. The appellant fired two shots
from his gun which caused the death of one Sindhi and injured three other
Sindhis. The question for determination was whether the appellant acted in his
right of private defence:
Held, that the facts of the case afforded a
right of private defence to the appellant under the provisions of the Indian
Penal Code. The circumstances in which he was placed were amply sufficient to
give him a right of private defence of the body even to the extent of causing
death as the appellant had no time to have recourse to the authorities and has
reasonable grounds for apprehending that either death or grievous hurt would be
caused either to himself or to his family. These things could not be weighed in
too fine a set of scales or "in golden scales."
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 50 of 1951. Appeal by SpeciaI Leave from the Judgment and Order
dated the 26th September, 1950, of the High Court of Judicature of Nagpur
(Herneon Acting C.J. and Hidayat Ullah J.) in Criminal Appeal No. 251 of 1950
arising out of Judgment dated the 2nd August, 1950, of the Court of Sessions
Judge, Jabalpur, in Sessions Trial No. 32 of 1950.
568 S.P. Sinha and M.Y. Sharif, Nuruddin
Ahmad and (Shaukat Hussain, with them) for the appellant.
Gopal Singh for the respondent.
1952. March 20. The Judgment of the court was
delivered by BOSE J.--The main question in this case is whether there is a
right of private defence. Most of the facts are not in dispute.
A communal' riot broke out at Katni on the
5th of March, 1950, between some Sindhi refugees resident in the town and the
local Muslims. The trouble started in the locality known as Zanda Bazar or
Zanda Chowk. Police Constable Bharat Singh, P.W. 17, who made the First
Information Report, said that most of the shopkeepers in Zanda Bazar are
Sindhis. He stated that when he was to1d that trouble had broken out there he proceeded
to the spot and found that the goods in the Muslim shops in that locality were
scattered.
It is also in evidence that some Muslims lost
their lives.
From this place he went on to Subash Chowk,
the locality in which the appellant's shop is situate. It lies to the West of
Zanda Bazar. He states that when he got there he found a "crowd"
there but not a "mob". He admitted that he had said in the First
Information Report that a gun was fired a minute after he had reached the spot
and he said that what he had stated in the First Information Report was true.
It is not disputed that this shot was fired by the appellant, as also a second
shot, and that that caused the death of one man (a Sindhi) and injured three
others, also Sindhis.
The map, Ex. D-4, shows that the shops of the
appellant and his brother Zahid Khan run into each other and form two sides of
a rectangle, the appellant's house facing north and the brother's house facing
east. Each shop opens out on to a road.
569 It is proved that when the rioting broke
out in the Zanda Chowk the alarm spread to the appellant's locality and the
people there, including the appellant, started closing their shops.
The appellant's version is that the mob
approached his locality and broke into the portion of the building facing east
in which his brother's shop is situate and looted it.
The High Court holds that this is proved and
holds further that this preceded the firing by the appellant.
There is a hole in the wall between the two
portions of the building in which these two shops are situate and the High
Court holds that Zahid's family got into the appellant's portion of the
building through this hole and took refuge there. The High Court also holds
that the appellant's mother then told the appellant that the crowd had burst
into his (appellant's) shop and was looting it. The learned Judges state that
what he said was not quite true because all that the crowd did was to beat the
door of the appellant's shop with lathis as they were passing but had not broken
into the shop. But they accept the fact that the crowd was beating the doors of
the appellant's shop with their lathis.
In our opinion, the facts found by the High
Court are sufficient to afford a right of private defence. Under section 97 of
the Indian Penal Code the right extends not only to the defence of one's own
body against any offence affecting the human body but also to defending the
body of any other person. The right also embraces the protection of property,
whether one's own or another person's, against certain specified offences,
namely theft, robbery, mischief and criminal trespass. The limitations on this
right and its scope are set out in the sections which follow. For one thing,
the right does not arise if there is time to have recourse to the protection of
the public authorities, and for another, it does not extend to the infliction
of more harm than is necessary for the purpose of defence. Another limitation
is that when death is 570 caused the person exercising the right must be under
reasonable apprehension of death, or grievous hurt, to himself or to those whom
he is protecting; and in the case of property, the danger to it must be of the
kinds specified in section 103. The scope of the right is further explained in
sections 102 and 105 of the Indian Penal Code.
Neither the learned High Court Judges nor the
Sessions Judge has analysed these provisions. Both Courts appear to be under
the impression that actual looting of the appellant's shop was necessary before
the right could arise. In that they are wrong. Under section 102 the right of
private defence of the body commences-"As soon as a reasonable
apprehension of the danger to the body arises from an attempt or threat to
commit the offence though the offence may not have been committed."
Examining the provisions we have set out above, it is evident that the
appellant had no time to have recourse to the authorities. The mob or crowd had
already broken into one part of the building and was actually beating on the
doors of the other part. It is also evident that the appellant had reasonable
grounds for apprehending that either death or grievous hurt would be caused
either to himself or his family learned Sessions Judge has eloquently drawn
attention to the lamentable consequences of communal frenzy in India and in
Katni in particular, and he refers to the indiscriminate looting of Muslim
shops in that town. So also the High Court holds that" Looking to the
circumstances which had existed in the country before and the fact that the
trouble was between the refugees and the local Muslims it cannot be said that
there would be no danger to the life of the appellant or at least of grievous
hurt if the mob had entered his shop and he prevented it. The apprehension
would undoubtedly be reasonable." And we know that Muslim shops had
already been broken into and looted and Muslims killed in the 571 rioting at
Zanda Chowk which preceded this, in our opinion, the High Court was wrong in
thinking that the appellant had to wait until the mob actually broke into his
shop and entered it. They have emphasised this in another part of their
judgment also where they say that the shot was fired" when there was no
looting at the shop and thus no right of private defence." It was enough
that the mob had actually broken into another part of the house and looted it,
that the woman and children of his family fled to the appellant for protection
in terror of their lives and that the mob was actually beating at his own doors
with their lathis and that Muslim shops had already been looted and Muslims
killed in the adjoining locality. It was impossible for him to know whether his
shop would or would not suffer the same fate if he waited, and on the findings
it was reasonable for him to apprehend death or grievous hurt to himself and
his family once they broke in, for he would then have had the right to protest
and indeed would have been bound to do what he could to protect his family. The
threat to break in was implicit in the conduct of the mob and with it the
threat to kill or cause grievous hurt to the inmates; indeed the High Court
Judges themselves hold that his own shop was menaced. The circumstances in
which he was placed were amply sufficient to give him a right of private
defence of the body even to the extent of causing death. These things cannot be
weighed in too fine a set of scales or, as some learned Judges have expressed
it, in golden scales.
We have next to see whether the appellant
used more force than was necessary, and here also we cannot use golden scales.
He was entitled to cause death and he did not kill more than one man. He fired
only two shots and, as the learned High Court Judges observe, he obviously
aimed low.
The High Court holds the mob had moved up to
his locality When he fired the shots, so the looting and the beating 572 on the
doors were not the isolated acts of a few scattered individuals. It was the mob
that was doing it and in the High Court's words, "The very fact that in
the town of Katni two shots should have struck four Sindhis and none else shows
that the rival community was on the move in that area." In our opinion,
the appellant did not use more force than was necessary. Indeed, the firing,
far from acting as a deterrent, spurred them on and they ransacked and looted the
place.
We have confined our attention to the right
of private defence of the person though in this case the question about the
defence of property happens to be bound up with it.
The appeal is allowed. The convictions and
sentences are set aside and the appellant will be released.
Agent for the appellant: O.P. Verma.
Agent for the respondent: P.A. Mehta.
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