Vishwanath Vs. The State of Uttar
Pradesh  INSC 109 (3 September 1959)
IMAM, SYED JAFFER
CITATION: 1960 AIR 67 1960 SCR (1) 646
Criminal Trial-Right of Private defence-When
extends to causing death-Whether mere abduction which is not Punishable gives
right of private defence to cause death of abductor-Husband trying to take away
wife forcibly from her father's house-Wife's brother stabbing husband and
killing him-If protected by right of private defence-Indian Penal Code, 1860
(XLV of 1860), ss. 97, 99 and 100.
The relations between one G and his wife were
strained and she went to live with her father B and her brother V, the
appellant. G, with three others, went to the quarter of B and he went inside
and came out dragging his reluctant wife behind him. She caught hold of the
door and G started pulling her. At this the appellant shouted to his father
that G was adamant and thereupon B replied that he should be beaten. The
appellant took out a knife from his pocket and stabbed G once. The knife
penetrated the heart of G and he died. B and the appellant were 647 tried for
the murder of G; B was acquitted and the appellant was convicted under S. 304
Part II Indian Penal Code and sentenced to three years rigorous imprisonment.
The appellant contended that he had acted in the right of private defence of
person under s. 100 fifthly Indian Penal Code, which extended to the causing of
death as G had assaulted his wife with the intention of abducting her. The
respondent urged that s. 100 fifthly applied only when the abduction was of
such a nature as was punishable under the Penal Code.
Held, that the appellant had the right of
private defence of the body of his sister which extended to the causing of death
of G. The extended right under s. 100 arose when there was the offence of
assault of one of the types mentioned in the six clauses of that section. It
was not necessary that the intention with which the assault was committed must
always bean offence itself. The word " abduction " used. in the fifth
clause of s. 100 meant nothing more than what was defined as " abduction
" in s. 362, and it was not necessary, to get the protection of this
clause, that the abduction must be of a type punishable under the Penal Code.
Further, the appellant had not inflicted more
harm than was necessary and was not guilty of any offence.
Emperor v. Ram Saiya, I.L.R. 1948 All. i65,
jagat Singh v. King-Emperor, A.I.R. 1923 Lah.
155, Daroga Lohar v. Emperor, A.I.R. 1930 Pat. 347, Sakha v. The State, I.L.R
195o Nag. 508 and Dayaram Laxman v. State, A.I.R I953 Madhya Bharat 52,
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 32 of 1958.
Appeal by special leave from the judgment and
order dated April 25, 1957, of the Allahabad High Court in Criminal Appeal No.
992 of 1954, arising out of the judgment and order dated January 25, 1954, of
the Additional Sessions Judge, Gorakhpur in Sessions Trial No. 71 of 1953.
S. P. Sinha and S. D. Sekhri, for the
G. C. Mathur and C. P. Lal (for G. N.
Dikshit), for the respondent.
1959. September 3. The Judgment of the Court
was delivered by WANCHOO J.-This is an appeal by special leave against the
judgment of the Allahabad High Court in a criminal matter.
The facts of the case, as found by the High
Court, are no longer in dispute and the 648 question that is raised in this
appeal is whether the appellant had exceeded the right of private defence of
person. The relevant facts for our purposes are these.
Gopal deceased was married to the sister of
The appellant and his father Badri were
living in a railway quarter at Gorakhpur. Gopal's sister was married to one
Banarsi, who was also living in another railway quarter nearby. Gopal had been
living for some time with his father-in-law. They did not, however, pull on
well together and Gopal shifted to the house of Banarsi. Badri persuaded Gopal
to come back to his house but the relations remained strained and eventually
Gopal shifted again to the quarter of Banarsi about 15 days before the present
occurrence which took place on June 11, 1953, at about 10 p.m. Gopal's wife had
continued to live with her father as she was unwilling to go with Gopal. Her
father Badri and her brother Vishwanath appellant sided with her and refused to
let her go with Gopal. Gopal also suspected that she had been carrying on with
one Moti who used to visit Badri's quarter.
Consequently, Gopal was keen to take away his
wife, the more so as he had got a job in the local department some months
before and wanted to lead an independent life. On June 11, there was some
quarrel between the appellant and Gopal about the girl; but nothing untoward
happened then and the appellant went back to his quarter and Gopal went away to
Bansari's quarter. Gopal asked Banarsi's sons to help him in bringing back his
wife. Banarsi also arrived and then all four of them went to Badri's quarter to
bring back the girl. On reaching the place, Banarsi and his two sons stood
outside while Gopal went in. In the meantime, Badri came out and was asked by
Banarsi to let the girl go with her husband. Badri was not agreeable to it and
asked Banarsi not to interfere in other people's affairs. While Badri and
Banarsi were talking, Gopal came out of the quarter dragging his reluctant wife
behind him. The girl caught hold of the door as she was being taken out and a
tug-of-war followed between her and Gopal. -The appellant was also there and
shouted to his father 649 that Gopal was adamant. Badri, thereupon replied that
if Gopal was adamant he should be beaten (tomaro). On this the appellant took
out a knife from his pocket and stabbed Gopal once. The knife penetrated into
the heart and Gopal fell down senseless. Steps were taken to revive Gopal but
without success. Thereupon, Gopal was taken to the hospital by Badri and the
appellant and Banarsi and his sons and some others, but Gopal died by the time
they reached the hospital.
On these facts the Sessions Judge was of
opinion that Badri who had merely asked the appellant to beat Gopal could not
have realised that the appellant would take out a knife from his pocket and
stab Gopal. Badri was, therefore, acquitted of abetment. The Sessions Judge was
further of opinion that the appellant had the right of private defence of
person, and that this right extended even to the causing of death as it arose
on account of an assault on his sister which was with intent to abduct her. He
was further of opinion that more harm than the circumstances of the case
required was not caused; and therefore the appellant was also acquitted.
The State then appealed to the High Court
against the acquittal of both accused. The High Court upheld the acquittal of
Badri. The acquittal of the appellant was set aside on the ground that the case
was not covered by the fifth clause of s. 100 and the right of -private defence
of person in this case did not extend to the voluntary causing of death to the
assailant and therefore it was exceeded.
The High Court relied on an earlier decision
of its own in Emperor v. Ram Saiya (1). The appellant was therefore convicted
under s. 304, Part 11, of the Penal code and sentenced to three years' rigorous
imprisonment. He applied for a certificate to enable him to appeal to this
Court but this was refused. Thereupon he applied to this Court for special
leave which was granted; and that is how the matter has come up before us.
The main question therefore that falls for
consideration in this appeal is whether the decision in Ram (1) I.L.R. 1948
650 Saiya's case (1) is correct. It appears
that four other high Courts have taken a view which is different on that taken
in Ram Saiya's case (1-), namely Jagat singh v. King Emperor (2) Daroga Lokar
v. Emperor Lohar v. The State (4) and Dayaram Laxman v. State 'here is,
however, no discussion of the point in these our cases and we need not refer to
them further. the view taken in Ram Saiya's case (1) is that the lord "
abducting " used in the fifth clause of s. 100 of the Penal Code refers to
such abducting as is an offence under that Code and not merely to the act of
abduction as defined in s. 362 thereof. Mere abduction is not an offence and,
therefore, cannot give rise of any right of private defence and the extended
right of private defence given by s. 100 only arises if the offence which
occasions the exercise of the right is of the Of the kinds mentioned in s. 100.
Section 97 gives the right of private defence
of person against any offence affecting the human body. Section 99 lays down
that the right of private defence a no case extends to the inflicting of more
harm than it is necessary to inflict for the purpose of defence. Section 100
with which we are concerned is in these terms:" 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;
Secondly-Such an assault as may reasonably
cause the apprehension that grievous hurt will otherwise be the consequence of
Thirdly-An assault with the intention of
committing rape ;
(1) I.L.R. 1948 All. 165. (3) A.I. R. 1930
Pat. 347 (2).
(2) A.I.R. 1923 Lab. 155 (1). (4) 1 L.R. 1950
(5) A 1. R. 1953 Madhya Bharat 182.
651 Fourthly-An assault with the intention of
gratifying unnatural lust;
Fifthly-An assault with the intention of
Sixthly-An assault with the intention of
wrongfully confining a person under circumstances which may reasonably cause
him to apprehend that he will be unable to have recourse to the public
authorities for his release." The right of private defence of person only
arises if there is an offence affecting the human body. Offences affecting the
human body are to be found in Ch. XVI from s. 299 to s. 377 of the Penal Code
and include offences in the nature of use of criminal force and assault.
Abduction is also in Ch. XVI and is defined in s. 362. Abduction takes place
whenever a person by force compels or by any deceitful means induces another
person to go from any place. But abduction pure and simple is not an offence
under the Penal Code.
Only abduction with certain intent is
punishable as an offence. If the intention is that the person abducted may be
murdered or so disposed of as to be put in danger of being murdered, s. 364
applies. If the intention is to cause secret and wrongful confinement, s. 365
applies. If the abducted person is a woman and the intention is that she may be
compelled or is likely to be compelled to marry any person against her will or
may be forced or seduced to illicit intercourse or is likely to be so forced or
seduced, s. 366 applies. If the intention is to cause grievous hurt or so
dispose of the person abducted as to put him in danger of being subjected to
grievous hurt, or slavery or the unnatural lust of any person, s. 367 applies.
If the abducted person is a child under the age of ten and the intention is to
take dishonestly any movable property from its person, s. 369 applies. It is
said that unless an offence under one of these sections is likely to be
committed, the fifth clause of s. 100 can have no application. On a plain
reading, however, of that clause there does not seem to be any reason for
holding that the word " abducting " used there means anything more
than what is defined as " abduction " in s. 362.
652 It is true that the right of private
defence of person arises only if an -offence against the human body is
committed. Section 100 gives an extended right of private defence of person in
cases where. the offence which occasions the exercise of the right is of any of
the descriptions enumerated therein. Each of the six clauses of s. 100 talks of
an assault and assault is an offence against the human body; (see s. 352). So
before the extended right under s. 100 arises there has to be the offence of
assault and this assault has to be of one of the six types mentioned in the six
clauses of the section. The view in Ram Saiya's case (1) seems to overlook that
in each of the six clauses enumerated in s. 100, there is an offence against the
human body, namely, assault. So the right of private defence arises against
that offence, and what s. 100 lays down is that if the assault is of an
aggravated nature, as enumerated in that section, the right of private defence
extends even to the causing of death. The fact that when describing the nature
of the assault some of the clauses in s. 100 use words which are themselves
offences, as for example, " grievous hurt ", " rape ",
" kidnapping ", " wrongfully confining ", does not mean
that the intention with which the assault is committed must always be an
offence in itself.
In some other clauses, the words used to
indicate the intention do not themselves amount to an offence under the Penal
Code. For example, the first clause says that the assault must be such as may
reasonably cause the apprehension of death. Now death is not an offence
anywhere in the Penal Code. Therefore, when the word " abducting " is
used in the fifth clause, that word by itself reed not be an offence in order
that clause may be taken advantage of by or on behalf of a person who is
assaulted with intent to abduct. All that the clause requires is that there
should be an assault which is an offence against the human body and that
assault should be with the intention of abducting, and whenever these elements
are present the clause will be applicable.
Further the definition of " abduction
" is in two parts, namely, (i) abduction where a person is compelled, (1)
I.L.R. 1948 All. 165.
653 by force to go from any place and (ii)
abduction where a person is induced by any deceitful means to go from any
place. Now the fifth clause of s. 100 contemplates only that kind of abduction
in which force is used and where the assault is with the intention of
abducting, the right of private defence that arises by reason of such assault
extends even up to the causing of death. It would in our opinion be not right
to expect from a person who is being abducted by force to pause and consider
whether the abductor has further intention as provided in one of the sections
of the Penal Code quoted above, before he takes steps to defend himself, even
to the extent of causing death of the person abducting. The framers of the Code
knew that abduction by itself was not an offence unless there was some further
intention coupled with it. Even so in the fifth clause of s. 100 the word
" abducting " has been used without any further qualification to the
effect that the abducting must be of the kind mentioned in s. 364 onwards. We
are therefore of opinion that the view taken in Ram Saiya's case (1) is not
correct and the fifth clause must be given full effect according to its plain
meaning. Therefore, when the appellant's sister was being abducted, even though
by her husband, and there was an assault on her and she was being compelled by
force to go away from her father's place, the appellant would have the right of
private defence of the body of his sister against an assault with the intention
of abducting her by force and that right would extend to the causing of death.
The next question is whether the appellant
was within the restrictions prescribed by s. 99. It was urged that the right of
private defence never extends to the inflicting of more harm than what is
necessary for the purpose of defending and that in this case the appellant
inflicted more harm than was necessary. We are of opinion that this is not so.
The appellant gave only one blow with a knife which he happened to have in his
pocket. It is unfortunate that the blow landed right into the heart and therefore
But considering that the appellant had given
(1) I.L.R. 1948 All. 165.
83 654 only one below with an ordinary knife
which, if it had been a little this way or that, could not have been fatal, it
cannot be said that he inflicted more harm than was necessary for the purpose
of defence. As has been pointed out in Amjad Khan v. The State (1), "
these things cannot be weighed in too fine a set of scales or in golden
We, therefore, allow the appeal and hold that
the appellant had the right of private defence of person under the fifth clause
of s. 100 and did not cause more harm than was necessary and acquit him.