CASE NO.: Appeal (crl.) 228 of 1987 PETITIONER: MAHABIR CHOUDHARY ETC. RESPONDENT: STATE OF BIHAR DATE OF JUDGMENT: 01/05/1996 BENCH: MADAN MOHAN PUNCHHI, CJ & K.T. THOMAS JUDGMENT:
JUDGEMENT
1996 SUPP. (2) SCR 165
The Judgment of the Court was delivered by.
THOMAS, J. Thirteen persons were arraigned in the trial court to face
Charges for offences including Section 302 read with Section 149 of IPC,
out of which Sessions Court convicted only four of the offences under
Section 304 Part 1 of IPC and Section 25(1) of the Indian Arms Act. Others
were acquitted. The convicted persons were sentenced to rigorous
imprisonment for 5 years each on the first count and rigorous imprisonment
for 6 months each on the second count. They filed appeal before the Patna
High Court. The State of Bihar Filed another appeal challenging acquittal
of 9 accused as well as the order exonerating the convicted persons of the
offence under Section 302 IPC. At the appellate stage there was reversal of
fortune for all the arraigned persons as the High Court found all of them
guilty under Section 302 read with Section 149 IPC. Hence the present
appeals by the accused persons by special leave.
We are informed that during the pendency of these appeals two of the.
Appellants, (Sheonandan Choudhary and Ram Ishwar Choudhary) have expired,
it is also reported that appellant Ganesh Choudhary has become insane and
has gone out of his house and his whereabouts are not known.
The incident which led to the prosecution of all the 13 appellants happened
during the morning hour’s on 15.10.1974, in which three persons. (1.
Daroga, 2. Kewal and 3. Hit Narain) died. All the deceased hailed from a
village called Malpura which is situate a little north of Kusi Village. A
water stream staring form another village (Parsar Ahar – situated south of
Kusi Village) flowed north wards reaching upto Kusi. Appellant are in-
habitants of Kusi Village. As there was acute drought condition, people of
Malpura were in need of water.
Prosecution case, in short, is thus: this three deceased visited. Kusi
Village on the eve of the occurrence and cut open a bund which blocked the
water flowing further north. This act of the deceased was questioned by
some of the appellants. But their protestations were not heeded to by the
deceased. On the morning of 15.10.1974, situation further deteriorated with
exchange of words between the two factions when those hailing from. Malpura
forcefully resisted the attempt of the appellants to restore the bund. All
the appellants gathered up with guns, lathis, etc. The four Appellants, Who
were convicted by the trial court used guns to fire down one or the other
of the three deceased and consequently the deceased died of gun shot
injuries. The remaining persons who came from Malpura Village retreated and
fled from, the Scene.
Learned Sessions Judge found that the prosecution succeeded in establishing
that the four convicted persons fired gun at the deceased. However, learned
Sessions Judge took the view that appellants had right of private defence
of property as deceased committed mischief by cutting open the bund to
block the water flow. But the trial Court further found that -the four
convicted persons who used firearms had exceeded their right of private
defence and hence they were convicted only of the offence under Section 304
Part I of l PC.
The High Court, in reversal of the above findings, concluded that all the
13 accused had formed themselves into an unlawful assembly with the common
object of murdering [he three deceased and that none hat the right of
private defence at the relevant time;
We have no reason to disturb the finding that four appellants had used guns
and shot down the three diseased. So the only question for our
Consideration is whether, the High Court was justified in denying initial.
right of private defence to these appellants.
Learned Judges of the High Court have observed :
“Even if mischief had Been committed by Malpura people the same Was
continuing for three days preceding the occurrence, and hence there was-no
occasion for them to taker law into their own hands for attacking Malpura
people.”
High Court farther pointed out from evidence that a cut portion of the bund
was filled up by Kusi people and there was so me altercation and exchange
of abusive word, and when Malpura people, came shouting, some of them
carrying lathis, the four accused took out their guns which they had
concealed in the paddy filed and started firing indiscriminately. The High
Court then proceeded to observe thus:
“In such a situation it is difficult to accept that the accused persons
were protected by the right of private defence of person and property. So
far as: property is concerned mischief was caused to the property but it
was not caused under such circumstances as may reasonably cause
apprehension in the minds of the accused persons that death or grievous
hurt will be the consequence if such right of private defence-was not
exercised.”
The High Court further observed that simply ‘because some, persons came
shouting from Village Malpura was not enough to give rise to a reasonable
apprehension that grievous hurt would be; inflicted to the accused.
Section 97 IPC recognises right of a person not only to defend his own or
another’s body but to defend his own or another’s property even against an
attempt to inflict any offensive act as against the property. It is now
well-settled that the rule of retreat Which Common Law Courts espoused is
not relevant under the Indian Penal Code. If a man’s property is in
imminent danger of being impaired or attacked he has the right to resort to
such measures as would be reasonably necessary to thwart the attempt to
protect his properly. in Jai Dev v. State of Punjab, (1963) 1Crl. L.J. 495=
AIR 1963 SC 612, this Court has observed that in India there is no rule
which expects a man to run away when confronted with a situation where he.
can exercise his right of private defence.
No doubt Section 103I.PC, which deals with right of private defence as
against an act which might be mischief or theft or criminal trespass,
conditions that there should be reasonable apprehension that death or
grievous hurt would otherwise be the consequence. But that provision deals
with the farthest extent of the right of private defence as against the
above three categories of wrong against the property. But a man pitted
against such wrongs or even against attempts thereof need not wait for
exercising right of private defence untill the apprehension of death of
grievous hurt is burgeoned in his mind Penal Code envisages two measures of
right private defence. One is the first degree which shall not reach upto
causing of death of the wrong doer. The other is the full measure which may
go upto causing death. Both measures are, however, subjected to the
restrictions enumerated in Section 99. Section 104 IPC contains the bridle
that right of private defence shall not cross the limit of first degree as
against acts which would remain as theft mischief or criminal trespass. But
Section 103 recognises extension of the said right upto the full measure,
even as against the aforesaid acts but only if such acts or their attempts
are capable of inculcating reasonable apprehension in the mind that death
or grievous hurt would be the consequence if the right is not exercised in
such full measure.
The emerging position is, you have the first degree of right of private
defence even if the wrong committed or attempted to be committed against
you is theft or mischief or criminal trespass simplicitor. This right of
private defence cannot be used to kill the wrong doer unless you have
reasonable cause to fear that Otherwise death or grievous hurt might ensue
in which case you have the full measure of right of private defence.
When the acts of Malpura People amounted to mischief, appellants had aright
of private defence the thwart to same. In the course of exercise of such
right appellants who gunned down the mischief-makers have obviously acted
far in excess of the right of private defence. Nonetheless the first degree
of right of private defence cannot be denied to them.
We are, therefore, of the view that the High Court was in error in holding
that appellants had no right of private defence at any stage. Trial Court
was correct in its approach regarding that aspect of the matter. we
therefore, allow these appeals and set aside the Judgment of the High
Court. The conviction and sentence passed by the Session Court will stand.