{"id":116339,"date":"1978-12-14T00:00:00","date_gmt":"1978-12-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mohinder-pal-jolly-vs-state-of-punjab-on-14-december-1978"},"modified":"2018-04-20T21:13:02","modified_gmt":"2018-04-20T15:43:02","slug":"mohinder-pal-jolly-vs-state-of-punjab-on-14-december-1978","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mohinder-pal-jolly-vs-state-of-punjab-on-14-december-1978","title":{"rendered":"Mohinder Pal Jolly vs State Of Punjab on 14 December, 1978"},"content":{"rendered":"<div class=\"docsource_main\">Supreme Court of India<\/div>\n<div class=\"doc_title\">Mohinder Pal Jolly vs State Of Punjab on 14 December, 1978<\/div>\n<div class=\"doc_citations\">Equivalent citations: 1979 AIR  577, \t\t  1979 SCR  (2) 805<\/div>\n<div class=\"doc_author\">Author: N Untwalia<\/div>\n<div class=\"doc_bench\">Bench: Untwalia, N.L.<\/div>\n<pre>           PETITIONER:\nMOHINDER PAL JOLLY\n\n\tVs.\n\nRESPONDENT:\nSTATE OF PUNJAB\n\nDATE OF JUDGMENT14\/12\/1978\n\nBENCH:\nUNTWALIA, N.L.\nBENCH:\nUNTWALIA, N.L.\nREDDY, O. CHINNAPPA (J)\n\nCITATION:\n 1979 AIR  577\t\t  1979 SCR  (2) 805\n 1979 SCC  (3)\t30\n\n\nACT:\n     Indian Penal  Code, 1860  (Act 45 of 1860) Ss. 99, 101,\n103, 302,  303 and 304. Factory owner fired from revolver on\nworkers agitating  for\twages  outside\tfactory-Death  of  a\nworker-Accused claiming right of private defence of property\nand  person-Right   when  available-Accused   if  should  be\nconvicted and sentenced under Part-II of Section 304 and not\nPart-I.\n\n\n\nHEADNOTE:\n     There was\ta dispute  between the\tappellant, a factory\nowner and  his employees  in regard  to\t wages,\t during\t the\nperiod of their lay-off.\n     The  prosecution\talleged\t that  on  the\tday  of\t the\noccurrence when the workers gathered outside the factory and\nraised\tinnocuous   slogans  demanding\t their\twages,\t the\nappellant came out and fired a shot from his revolver, which\nhit a worker resulting in his death.\n     The appellant  on the  other hand\talleged that a large\nnumber of  labourers  who  collected  outside  the  factory,\nshouted very  abusive slogans,\tthreatening that  they would\nnot leave  him alive  and showered  brickbats at the factory\npremises  causing   damage  to\t the  appellant's  property.\nApprehending imminent  danger to  his life and property, his\ndriver fired  a shot from the revolver which resulted in the\ndeath of the deceased.\n     The trial\tcourt, with  whose findings  the High  Court\nagreed, found  that the\t workers might have hurled brickbats\ninto the factory premises; but they did not break the barbed\nwire on\t the boundary  wall nor\t did they  try to  scale the\nboundary wall.\tthat they  did not carry any sticks, that no\nbrickbats hurled  by the workers could enter the appellant's\noffice and therefore his version that some brickbats damaged\nthe glass  on his office table was incorrect and that it was\nthe appellant  and not\this driver  that fired\this revolver\nwhich resulted in the death of the deceased. The High Court,\nagreeing  with\t the  trial  court,  held  that\t though\t the\nappellant had  the right  of private  defence of property it\ndid not go to the extent of causing death and, therefore, he\nexceeded his  right of\tprivate defence.  Holding  that\t the\noffence fell  under Exception 2 to s. 300 IPC the High Court\nconvicted him under s. 304, Part-I.\n     In appeal\tto this\t Court it was contended on behalf of\nthe appellant  that in\tthe exercise of his right of private\ndefence the  appellant was  entitled to and justified in law\nin using  force even to the extent of causing death although\nhe never  intended to  kill the\t deceased or  anyone. On the\nfacts and  circumstances of the case, it did not come within\nclause 4thly  of s.  300; or  even if  it fell\twithin\tthat\nprovision, on  the application of exception 2, he could only\nbe convicted  under Part  II of s. 304 and not under Part I.\nEven if\t his conviction\t were maintained, imposition of fine\nwould meet the ends of justice.\n     Dismissing the appeal in part,\n^\n     HELD: The appellant could be convicted only under Part-\nII of s. 304 and not Part-I. [813 C].\n806\n     (1) The  High  Court  was\tright  in  not\tfinding\t the\nappellant  guilty  of  having  committed  culpable  homicide\namounting to  murder within  clauses  Firstly,\tSecondly  or\nThirdly and  finding him guilty with the aid of clause 4thly\nwhere the  intention to\t cause murder  is  absent  but\t\"the\nperson committing  the act  knows that\tit is  so imminently\ndangerous that\tit must,  in all probability, cause death or\nsuch bodily  injury as is likely to cause death\". The clause\nfurther says  that the\tperson \"commits such act without any\nexcuse for  incurring the  risk of  causing  death  or\tsuch\ninjury as  aforesaid.\" The appellant must have committed the\nact with  the knowledge that it was imminently dangerous and\nin all probability must cause death or such bodily injury as\nwas likely  to cause  death. Dehors  Exception 2,  he had no\nexcuse for committing the said act. [813 D-E]\n     In the  present case  the workers' demand for wages was\nnot legal.  The workers\t raised provocative  slogans and did\nthrow  brickbats   damaging  the  appellant's  property\t and\nendangering it\tto further  damage. But that by itself could\nnot give  any right  of private\t defence of  person  to\t the\nappellant. There is no evidence to show that the workers had\nbroken the  barbed wire\t or that some of them tried to scale\nthe boundary wall. It may well be that some of them tried to\nraise their  heads above  the boundary\twall. The  appellant\ncame out  of his  office and fired the shot, which could not\nbe merely  to scare  away the crowd of workers. He could and\ndid fire  the shot  so that  it could pass over the boundary\nwall almost  grazing it.  The bullet  which must have passed\njust over  the boundary\t wall could and did hit the deceased\nkilling him instantaneously. [812C-813C]\n     2. (a)  In the  matter of\texercise  of  the  right  or\nprivate defence\t of property  or person\t the onus  is on the\naccused to  establish this  right not  on the  basis of\t the\nstandard of  proving it\t beyond doubt  but on  the theory of\npreponderance of  probability. He  might or  might not\ttake\nthis plea  explicitly or  might\t or  might  not\t adduce\t any\nevidence in  support of it but he can succeed in his plea if\nhe is able to bring out materials on the record on the basis\nof evidence  of the prosecution witnesses or on other pieces\nof evidence  to show  that the apparently criminal act which\nhe committed  was justified  in exercise  of  his  right  of\nprivate defence\t of person  or property\t or  both.  But\t the\nexercise of  this right\t is subject  to the  limitation\t and\nexceptions provided  in section\t 99 of\tthe Code. As to when\nthe right  of private defence of the body extends to causing\ndeath is provided for in s. 100. [813 F-814 A]\n     (b) The  appellant had  not only  the right  of private\ndefence of  his-property but  also his\tbody  to  a  limited\nextent\twithin\t the  meaning  of  s.  101  subject  to\t the\nrestrictions mentioned\tin s. 99. This did not extend to the\ninflicting of  so much\tharm to the deceased and causing his\ndeath, nor  does the  right of\tprivate defence\t of property\navailable to  an accused  extend to causing death, unless it\nis covered by any of the clause of s. 103. [814 B]\n     (c) When  mischief is  caused to  property it  must  be\nshown that  it was  caused under  such circumstances  as may\nreasonably cause  apprehension that  death or  grievous hurt\nwould be  the consequence  if such  right of private defence\nwas not\t exercised. A mere claim of such apprehension is not\nenough. The  court on  objective tests\tand on the facts and\ncircumstances of  each case  must arrive  at the  conclusion\nthat the  situation was\t such as  was likely  to  reasonably\ncause such apprehension. [814 D-E]\n807\n     (d) The  right of\tprivate defence\t of property  in the\nappellant's case  extended to causing of any harm other than\ndeath. The  appellant  did  exceed  this  right\t of  private\ndefence and  the murder\t which he  committed was  within the\nmeaning of clause '4thly' of s. 300 squarely and fell within\nException 2 thereof. [814 F]\n     (e) The  appellant exceeded  the right  given to him by\nlaw and caused the death of the deceased against whom he was\nexercising  such   right  of  defence.\tHe  did\t so  without\npremeditation and  without any\tintention of doing more harm\nthan was  necessary for\t the purpose  of  such\tdefence.  He\nthought that  by indulging  in this imminently dangerous act\nhe would  be able  to scare away the labourers and stop them\nfrom continuing\t their unjustified agitation, the raising of\nthe  slogans  and  the\tthrowing  of  brickbats.  But  then,\nalthough the  intention was not to kill or cause such bodily\ninjury as was sufficient in the ordinary course of nature to\ncause death, yet he must have committed the act knowing that\nit  was\t  so  imminently  dangerous  that  it  must  in\t all\nprobability cause death of the worker or workers standing on\nthe other side of the boundary wall. [814 G-H]\n     3. If  the accused\t commits an act while exercising the\nright of  private defence  by which  death is  caused either\nwith the intention of causing death or with the intention of\ncausing such  bodily injury as is likely to cause death then\nhe would be guilty under Part-I. On the other hand if before\nthe application\t of any\t of the\t Exception of  s. 300  it is\nfound that  he was  guilty of  murder within  the meaning of\nclause \"4thly\" then no question of such intention arises and\nonly the  knowledge is\tto be  fastened on  him that  he did\nindulge in  an act  with the knowledge that it was likely to\ncause death but without any intention to cause it or without\nany intention  to cause\t such bodily injury as was likely to\ncause death.  In the  instant case  the appellant  could  be\nconvicted only\tunder Part-II  of s.  304  and\tnot  Part-I.\n[815A-C]\n\n\n\nJUDGMENT:\n<\/pre>\n<p>     CRIMINAL APPELLATE\t JURISDICTION: Criminal\t Appeal\t No.<br \/>\n118 of 1972.\n<\/p>\n<p>     Appeal by\tSpecial Leave  from the\t Judgment and  Order<br \/>\ndated 24-4-1972\t of the\t Punjab and  Haryana High  Court  in<br \/>\nCriminal Appeal No.303 of 1969.\n<\/p>\n<p>     A. N.  Mulla, Harbans  Singh and  Faqir Chand  for\t the<br \/>\nAppellant.\n<\/p>\n<p>     Hardev Singh for the Respondent.\n<\/p>\n<p>     The Judgment of Court was delivered by<br \/>\n     UNTWALIA, J.-The  appellant in  this appeal  by special<br \/>\nleave  was  convicted  by  the\tAdditional  Sessions  Judge,<br \/>\nJullundur under\t section 304  Part-I, Indian  Penal Code and<br \/>\nsentenced to  undergo rigorous\timprisonment for seven years<br \/>\nand a  fine of Rs. 10,000\/- in default to two years&#8217; further<br \/>\nrigorous imprisonment.\tThe fine, if recovered, was directed<br \/>\nto be  paid to\tthe dependants\tof  the\t deceased  in  equal<br \/>\nshares. The  appellant filed  a criminal  appeal in the High<br \/>\nCourt of  Punjab and  Haryana  against\this  conviction\t and<br \/>\nsentence. The State<br \/>\n<span class=\"hidden_text\">808<\/span><br \/>\nalso filed  an appeal  and the widow of the deceased filed a<br \/>\nrevision in  the High  Court for  convicting  the  appellant<br \/>\nunder section  302 of  the Penal Code instead of section 304<br \/>\nPart-I. The  High Court\t dismissed both\t the appeals as also<br \/>\nthe revision.  The appellant  only has preferred this appeal<br \/>\nin this Court.\n<\/p>\n<p>     The appellant was running a factory at Jullundur and on<br \/>\naccount of  non-availability of\t raw-materials\tthe  factory<br \/>\nremained closed\t for a\tfortnight  from\t the  14th  to\t28th<br \/>\nSeptember, 1967\t resulting in  lay-off\tof  the\t workmen.  A<br \/>\ndispute arose  between the  management and  the\t workmen  in<br \/>\nregard to  the payment\tof wages  for the  period aforesaid.<br \/>\nUltimately  a\tsettlement  was\t  arrived  at\tthrough\t the<br \/>\nintervention   of   the\t  Labour-cum-Conciliation   Officer,<br \/>\nJullundur and  the terms  of the  settlement were reduced to<br \/>\nwriting which  was marked  Ext. D.A. in the case. Rightly or<br \/>\nwrongly the  workers, according to the prosecution case, got<br \/>\nthe impression that they were to be paid their wages for the<br \/>\nperiod of lay-off. They accordingly went to the appellant on<br \/>\n7th October,  1967 for demanding the wages. The appellant is<br \/>\nsaid to\t have told  them that  the same would be paid on the<br \/>\n11th October.  On this\tdate again  they went to the factory<br \/>\nand sent P.W. Mota Singh to demand wages from the appellant.<br \/>\nHe asked  him to  go away. Mota Singh came out and passed on<br \/>\nthe information\t to the\t workers present outside the factory<br \/>\npremises,  who,\t amongst  others,  included  Sant  Ram,\t the<br \/>\ndeceased, Darshan Singh, P.W. 4 and Gurcharan Singh, P.W. 5.<br \/>\nAccording to  the prosecution  case the workers then started<br \/>\nraising innocuous  slogans demanding  their  wages  and\t did<br \/>\nnothing else. It is said that thereupon the appellant opened<br \/>\nthe door  of his  office and  fired a shot from his revolver<br \/>\ntowards the  workers who  were raising slogans. The shot hit<br \/>\non  the\t forehead  of  Sant  Ram  who  fell  down  and\tdied<br \/>\ninstantaneously at  the spot.  The occurrence  took place at<br \/>\n2.00 p.m.  on the  11th October,  1967. A  First Information<br \/>\nReport was  lodged at the Thana at 2.15 p.m., on the written<br \/>\nreport of  Mota Singh,\tP.W. 2,\t Shadi Lal,  P.W.  13,\tSub-<br \/>\nInspector of Police reached the place of occurrence at about<br \/>\n2.30 p.m.  and started\tinvestigation. After  submission  of<br \/>\nCharge-Sheet and  commitment the  appellant  was  tried\t for<br \/>\nhaving\tcommitted   the\t offence   of  murder  of  Sant\t Ram<br \/>\npunishable under section 302 of the Penal Code.\n<\/p>\n<p>     The defence set up by the appellant was that the Labour<br \/>\nOfficer had given the decision contained in Ext. D.A. on the<br \/>\n28th September,\t 1967 that  no wages  would be\tpaid for the<br \/>\nlay-off period\tbut that  the workmen  would be\t treated  on<br \/>\nleave and  would be  paid as  per leave\t due to\t each one of<br \/>\nthem. He along with his son and driver Bansi<br \/>\n<span class=\"hidden_text\">809<\/span><br \/>\nLal was in the office at about 1.50 p.m. on the 11th October<br \/>\nwhen eight  or nine  labourers of his factory and fifteen or<br \/>\ntwenty labourers who are outsiders came to his factory. Some<br \/>\nof them\t entered his office while others stood outside. They<br \/>\ndemanded wages\tnot only  for the period of lay-off but also<br \/>\nfor the\t period from  7th  October  onwards  when  they\t had<br \/>\ndecided not  to join  the work\tuntil their wages were paid.<br \/>\nThe factory  gates were\t closed and a big crowd of labourers<br \/>\ncollected outside.  They became\t violent. They\tshouted very<br \/>\nabusive and  obnoxious slogans\tand were  saying  that\tthey<br \/>\nwould not  leave the  owner of\tthe factory  alive that day.<br \/>\nThey showered brick-bats at the factory premises. His office<br \/>\nair-conditioner was broken so was the electric globe outside<br \/>\nthe office.  The brick-bats  hit the office wall and damaged<br \/>\nit and\talso damaged the table glass on the table inside the<br \/>\noffice. Numerous brick-bats fell both inside and outside the<br \/>\noffice. Apprehending  imminent danger  to his  life  and  in<br \/>\nexercise of  the right\tof private  defence of\tproperty and<br \/>\nperson, Bansi  Lal, the\t appellant&#8217;s driver  fired the\tshot<br \/>\nfrom the  revolver and\tnot he.\t The labourers\thad  started<br \/>\nbreaking the  barbed wire  fixed on the boundary wall of the<br \/>\nfactory on  the other side of which they were standing. Some<br \/>\nof them including Sant Ram tried to scale the boundary wall.<br \/>\nIt was\tin such\t a situation  that the\tbullet hit  Sant Ram<br \/>\ncausing his death.\n<\/p>\n<p>     Largely, almost  wholly, agreeing\twith the conclusions<br \/>\narrived at by the Trial Court, the High Court has arrived at<br \/>\nthe following findings of fact:-\n<\/p>\n<blockquote><p>\t  (1)  The version  of the  labourers that they were<br \/>\n\t       entitled\t to  their  wages  for\tthe  lay-off<br \/>\n\t       period was  not countenanced  by\t Ext.  D.A.,<br \/>\n\t       rather, that  of the  appellant was borne out<br \/>\n\t       by it. &#8220;The demand of the workers made on 7th<br \/>\n\t       October, 1967  and  11th\t October,  1967\t for<br \/>\n\t       payment of  full wages  was not in accordance<br \/>\n\t       with this  agreement and\t therefore  was\t not<br \/>\n\t       legal.&#8221;\n<\/p><\/blockquote>\n<blockquote><p>\t  (2)  &#8220;That after the refusal by the accused to pay<br \/>\n\t       wages to\t the workers  for the lay-off period<br \/>\n\t       they  raised  some  slogans  and\t might\thave<br \/>\n\t       hurled  some   brick-bats  into\tthe  factory<br \/>\n\t       premises of the accused and caused damages as<br \/>\n\t       observed\t by   Shadi  Lal   (P.W.  13)\tSub-<br \/>\n\t       Inspector, who  arrived at  the\tspot  within<br \/>\n\t       about half an hour of the occurrence.&#8221;<br \/>\n\t  (3)  &#8220;The workers  did not  break the\t barbed wire<br \/>\n\t       affixed on  the boundary\t wall of the factory<br \/>\n\t       nor they tried to<br \/>\n<span class=\"hidden_text\">810<\/span><br \/>\n\t       scale the  boundary  wall  and  there  is  no<br \/>\n\t       reliable evidence  on the  file to  show that<br \/>\n\t       they were  armed with  any DANDAS  or sticks.<br \/>\n\t       Their purpose  was to  hold  a  demonstration<br \/>\n\t       against\tthe   accused  when  he\t refused  to<br \/>\n\t       consider their  demand of  wages for  the lay<br \/>\n\t       off period  which was obviously not justified<br \/>\n\t       in view\tof the\tagreement  arrived  on\t28th<br \/>\n\t       September, 1968,\t copy of  which\t is  Exhibit<br \/>\n\t       D.A.&#8221;\n<\/p><\/blockquote>\n<blockquote><p>\t  (4)  &#8220;Provocative slogans  might  have  also\tbeen<br \/>\n\t       raised by them at that time, when the accused<br \/>\n\t       was sitting in the office.&#8221;\n<\/p><\/blockquote>\n<blockquote><p>\t  (5)  &#8220;Admittedly the\tworkers were,  at that time,<br \/>\n\t       standing outside the factory wall which was 5<br \/>\n\t       1\/2 feet\t high and  on which  barbed wire  is<br \/>\n\t       fixed. The  distance between  that outer wall<br \/>\n\t       and the\toffice of  the accused\twas about 13<br \/>\n\t       feet. No\t brick-bats hurled  by\tthe  workers<br \/>\n\t       could, therefore,  enter the  office room  of<br \/>\n\t       the accused.  The defence  version that\tsome<br \/>\n\t       brick-bats fell\tinside\tthe  office  of\t the<br \/>\n\t       accused and  broke the  glass of his table is<br \/>\n\t       false and incorrect.&#8221;\n<\/p><\/blockquote>\n<blockquote><p>\t  (6)  The mob\thurled bricks-bats  on the  building<br \/>\n\t       and the\tglobe outside  his office was broken<br \/>\n\t       and  some   damage  was\t done  to  the\tair-<br \/>\n\t       conditioner and as such the mob was guilty of<br \/>\n\t       mischief.&#8221;\n<\/p><\/blockquote>\n<blockquote><p>\t  (7)  &#8220;The  accused   on  hearing  slogans  of\t the<br \/>\n\t       workers came  out of  his office and stood on<br \/>\n\t       the THARI  in front  of the  office and fired<br \/>\n\t       the  shot   towards  the\t workers,  who\twere<br \/>\n\t       raising slogans\toutside the factory and as a<br \/>\n\t       result\tof   that   shot   Sant\t  Ram\tdied<br \/>\n\t       instantaneously.&#8221;<\/p><\/blockquote>\n<p>     On the  basis of the findings aforesaid the High Court,<br \/>\nin agreement  with the\tTrial Court,  came to the conclusion<br \/>\nthat the  appellant had\t the right  of\tprivate\t defence  of<br \/>\nproperty extending  to the  voluntary causing  of  any\tharm<br \/>\nother than  death to  the workers  but not to the causing of<br \/>\ndeath and obviously he exceeded his right of private defence<br \/>\nand thus this offence falls under Exception 2 of section 300<br \/>\nof the Indian Penal Code. The High Court found the appellant<br \/>\nin the\tfirst instance guilty of culpable homicide amounting<br \/>\nto murder  within the  meaning of  clause &#8216;4thly&#8217; of section\n<\/p>\n<p>300. And  since the  appellant&#8217;s case was found to have been<br \/>\ncovered by  Exception 2\t he was convicted under section 304,<br \/>\nPart-I.\n<\/p>\n<p><span class=\"hidden_text\">811<\/span><\/p>\n<p>     Mr. A.  N. Mulla  appearing for the appellant submitted<br \/>\nthat he\t was not  challenging the concurrent findings of the<br \/>\ncourts below  that it  was the\tappellant who  had fired the<br \/>\nshot from  his\trevolver  and  not  his\t driver.  But  then,<br \/>\naccording  to  his  submission,\t he  was  forced  to  do  so<br \/>\napprehending imminent danger to his life or of grievous hurt<br \/>\nto him\tand the\t shot was  fired  not  only  to\t defend\t his<br \/>\nproperty. He  was, therefore,  in exercise  of\tthat  right,<br \/>\nentitled to  and justified in law in using force even to the<br \/>\nextent of  causing the\tdeath of Sant Ram, although he never<br \/>\nintended to  kill any one. It was further submitted that the<br \/>\nworkmen were the aggressors. They had thrown brick-bats even<br \/>\ninside the  office damaging  the  office  table\t glass;\t had<br \/>\ncollected in  large numbers  outside the  boundary wall; had<br \/>\nbroken the barbed wire on it and some of them were trying to<br \/>\nscale down  the wall.  In such a situation the appellant was<br \/>\nnot expected  to act  like a  coward and run from the place,<br \/>\nbut he had a right to defend his property and person. In any<br \/>\nview of the matter, counsel submitted, that the case did not<br \/>\ncome under clause &#8216;4thly&#8217; of section 300 or even if it falls<br \/>\nwithin that  provision, on the application of Exception 2 he<br \/>\ncould only be convicted under Part-II of section 304 and not<br \/>\nPart-I. On  the facts and in the circumstances of this case,<br \/>\ncounsel submitted,  that the  sentence imposed\tupon him  is<br \/>\nhighly excessive  and even  if his  conviction is maintained<br \/>\njustice demands\t only an  imposition of\t fine on  him  under<br \/>\nsection 304 Part-II.\n<\/p>\n<p>     Mr. Hardev Singh appearing for the State endeavoured to<br \/>\nshow that  the labourers  were justified  in demanding their<br \/>\nwages for  the layoff  period; they  were very few in number<br \/>\nand even  if their  demand was not warranted on the terms of<br \/>\nthe settlement\tembodied in  Ext. D.A.\tthey had  a right to<br \/>\npeacefully demonstrate\tand ventilate  their grievance. They<br \/>\ndid nothing which could give any right of private defence to<br \/>\nthe appellant  either of  his property\tor person.  He could<br \/>\nescape from  his office\t for his  safety or would have taken<br \/>\nrecourse  to  the  protection  of  the\tpublic\tauthorities.<br \/>\nCounsel further\t submitted that the appellant was not at all<br \/>\njustified in  causing the  death of Sant Ram by his revolver<br \/>\nand his\t conviction recorded  under section  304  Part-I  is<br \/>\ncorrect and the sentence is not at all excessive.\n<\/p>\n<p>     After having  appreciated all that was placed before us<br \/>\nby learned  counsel for\t the parties  and on  perusal of the<br \/>\nrelevant pieces\t of evidence in the case we have come to the<br \/>\nconclusion that\t none of the findings recorded by the Courts<br \/>\nbelow is  such or  so  erroneous  that\twe  can\t justifiably<br \/>\ninterfere with\tit either  this way  or that  way. And this,<br \/>\napart from  the fact,  that since  the State had not come to<br \/>\nthis Court<br \/>\n<span class=\"hidden_text\">812<\/span><br \/>\nin appeal  it was not open to it to argue that the appellant<br \/>\nhad no\tright of  private defence  at all. The argument that<br \/>\nthe  appellant\t had  time  to\tescape\tlike  a\t coward\t for<br \/>\nprotecting his\tperson leaving his property to any amount of<br \/>\ndanger of  being damaged, to say the least, was an obviously<br \/>\nwrong argument and has been stated merely to be rejected.\n<\/p>\n<p>     Ext. D.A.\tclearly shows  that  the  workmen  were\t not<br \/>\nentitled to  claim down\t right cash  wages for the period of<br \/>\nlay-off. Their\tabsence was  to be  adjusted  against  their<br \/>\nleave. To start with, therefore, the High Court was right in<br \/>\nsaying that their demand was not legal. Yet that, by itself,<br \/>\ncould not  give any  right  of\tprivate\t defence  either  of<br \/>\nproperty or  of person\tto the\tappellant. We have carefully<br \/>\ngone through  the evidence of P. Ws. 2, 4 and 5 and also the<br \/>\nevidence of  Vidya Sagar, D.W. 2 on which great reliance was<br \/>\nplaced by Mr. Mulla. We see no ample Justification for us to<br \/>\nsay that  any brick-bats thrown by the labourers had entered<br \/>\nthe office  room of  the appellant breaking the glass of his<br \/>\noffice table. But then, brick-bats were thrown; they did hit<br \/>\nand damage  the office\twall, the  air-conditioner  and\t the<br \/>\nglobe of  the electric\tlight. It  may not  be\tpossible  to<br \/>\ndetermine with\texactitude the\tnumber of  labourers present<br \/>\noutside the boundary wall at the time of the occurrence. But<br \/>\nit does\t appear to us that they were neither present in very<br \/>\nlarge number of hundred or more nor the number was as meagre<br \/>\nas about  ten as  deposed to by the P.Ws. The factory of the<br \/>\nappellant  is\tsituated  in   an  industrial  area.  It  is<br \/>\nreasonable to  think that  some other workers also must have<br \/>\njoined their agitational move. Be that as it may, the number<br \/>\nof the\tworkers present\t outside the boundary wall is not of<br \/>\nany great  significant although\t it has\t some  significance.<br \/>\nThey did  throw brick-bats damaging the appellant&#8217;s property<br \/>\nand endangering\t it to further damage. Hurling of brick-bats<br \/>\nby the\tlabourers towards  the office  of the appellant must<br \/>\nhave caused  apprehension of  some hurt or injury to him but<br \/>\nnot necessarily\t the causing  of the grievous hurt as on the<br \/>\nfacts and  in the  circumstances of  this case\tit  was\t not<br \/>\npossible to draw an inference to that extent. The High Court<br \/>\nwould have  been well  advised to  try to  record a definite<br \/>\nfinding on  the question of hurling of brick-bats instead of<br \/>\nsaying that  the workers  &#8220;might have hurled some brick-bats<br \/>\ninto the  factory premises  of the  accused.&#8221; Similarly\t the<br \/>\nHigh Court ought to have come to a definite conclusion as to<br \/>\nwhether the  slogans  raised  by  the  workers\twere  merely<br \/>\ninnocuous as  they  claimed  to\t be  or\t they  were  raising<br \/>\nprovocative slogans  also which\t were not only obnoxious but<br \/>\nwent to\t the length  of saying\tthat the appellant should be<br \/>\nkilled and  the factory\t should be burnt. We are inclined to<br \/>\nthink that the<br \/>\n<span class=\"hidden_text\">813<\/span><br \/>\nslogans raised\tby  the\t workers  were\tmore  offensive\t and<br \/>\nprovocative than claimed by them. But we are not prepared to<br \/>\naccept the  contention of the appellant in disagreement with<br \/>\nthe findings of the courts below that they had broken barbed<br \/>\nwire or\t that some  of them tried to scale down the boundary<br \/>\nwall. It  may well be that some of them tried to raise their<br \/>\nheads to  mark the  reaction of the appellant on the hearing<br \/>\nof their  slogans. The boundary wall was only 51\/2 high. The<br \/>\nappellant came out of his office room and stood on the THARI<br \/>\nwhich was  about 1  1\/2 high  from the\tground level  of the<br \/>\nfactory and fired the shot. It is not possible to accept his<br \/>\ncontention that\t he did so merely to scare away the crowd of<br \/>\nthe workers. He could and did fire the shot so that it could<br \/>\npass over  the boundary wall almost grazing it. Sant Ram was<br \/>\nstanding at  a distance\t of about 5&#8242; or 6&#8242; from the boundary<br \/>\nwall. The  bullet which\t must  have  passed  just  over\t the<br \/>\nboundary wall  could  and  did\thit  Sant  Ram.\t In  such  a<br \/>\nsituation the  High Court was right in the first instance in<br \/>\nnot  finding   the  appellant  guilty  of  having  committed<br \/>\nculpable homicide amounting to murder within clauses &#8216;1stly,<br \/>\n2ndly or  3rdly&#8217; and  finding him  guilty with\tthe  aid  of<br \/>\nclause &#8216;4thly&#8217;,\t where the  intention  to  cause  murder  is<br \/>\nabsent but  &#8220;the person\t committing the act knows that it is<br \/>\nso imminently  dangerous that  it must,\t in all probability,<br \/>\ncause death  or such  bodily injury  as is  likely to  cause<br \/>\ndeath&#8221;. The  clause further  says that\tthe person  &#8220;commits<br \/>\nsuch act  without any  excuse  for  incurring  the  risk  of<br \/>\ncausing death  or such\tinjury as  aforesaid.&#8221; The appellant<br \/>\nmust have  committed the  act with the knowledge that it was<br \/>\nimminently dangerous and in all probability must cause death<br \/>\nor such bodily injuries as was likely to cause death. Dehors<br \/>\nException 2  which we shall presently refer he had no excuse<br \/>\nfor committing the said act.\n<\/p>\n<p>     The law  regarding the  right  of\tprivate\t defence  of<br \/>\nproperty or  person is\twell  settled  and  may\t be  briefly<br \/>\nrecapitulated here.  The onus is on the accused to establish<br \/>\nthis right  not on  the basis  of the standard of proving it<br \/>\nbeyond\tdoubt\tbut  on\t  the  theory  of  preponderance  of<br \/>\nprobability. He might or might not take this plea explicitly<br \/>\nor might  or might  not adduce any evidence in support of it<br \/>\nbut he\tcan succeed  in his  plea if he is able to bring out<br \/>\nmaterials in  the records  of the  case on  the basis of the<br \/>\nevidence of  the prosecution witnesses or on other pieces of<br \/>\nevidence to  show that\tthe apparently criminal act which he<br \/>\ncommitted was  justified in exercise of his right of private<br \/>\ndefence of  property or\t person or both. But the exercise of<br \/>\nthis right  is subject\tto the\tlimitations  and  exceptions<br \/>\nprovided in section 99 of the Penal Code-the last one being-<br \/>\n&#8220;The right  of private\tdefence in  no case  extends to\t the<br \/>\ninflicting of more harm than it is necessary to inflict for<br \/>\n<span class=\"hidden_text\">814<\/span><br \/>\nthe purpose  of defence.&#8221;  As to  when the  right of private<br \/>\ndefence of the body extends to causing death is provided for<br \/>\nin section  100. The  appellant&#8217;s case is not covered by it.<br \/>\nIn the\tview which we have expressed above we think that the<br \/>\nappellant had  not only\t the right of private defence of his<br \/>\nproperly but  also his\tbody to a limited extent with in the<br \/>\nmeaning of section 101 subject to the restrictions mentioned<br \/>\nin section  99. This  did not extend to the inflicting of so<br \/>\nmuch harm  to Sant  Ram and causing his death, nor the right<br \/>\nof private  defence of\tproperty available  to the appellant<br \/>\nextended to  causing his  death as it was not covered by any<br \/>\nof the\tclauses of  section 103. Mr. Mulla tried to bring it<br \/>\nunder &#8216;4thly&#8217; which says:-\n<\/p>\n<blockquote><p>\t  &#8220;Theft, mischief,  or house-trespass,\t under\tsuch<br \/>\n     circumstances as may reasonably cause apprehension that<br \/>\n     death or grievous hurt will be the consequence, if such<br \/>\n     right of private defence is not exercised.\n<\/p><\/blockquote>\n<p>Mischief was  caused to\t his property  but it was not caused<br \/>\nunder\tsuch   circumstances   as   may\t  reasonably   cause<br \/>\napprehension in\t his mind  that death or grievous hurt would<br \/>\nbe the\tconsequence if such right of private defence was not<br \/>\nexercised. A  mere claim of such apprehension is not enough.<br \/>\nThe  Court   on\t objective   test  and\t on  the  facts\t and<br \/>\ncircumstances of  each case  must arrive  at the  conclusion<br \/>\nthat the  situation was\t such as  was likely  to  reasonably<br \/>\ncause such  apprehension. The  right of\t private defence  of<br \/>\nproperty also,\ttherefore, in  the appellant&#8217;s case extended<br \/>\nto causing of any harm other than the death. Undoubtedly the<br \/>\nappellant did  exceed this  right  of  private\tdefence\t and<br \/>\napparently the\tmurder which he committed within the meaning<br \/>\nof clause  &#8216;4thly&#8217;  of\tsection\t 300  squarely\tfell  within<br \/>\nException 2  thereof. He  exceeded the power given to him by<br \/>\nlaw and\t caused the  death of  Sant Ram\t against whom he was<br \/>\nexercising  such   right  of  defence.\tHe  did\t so  without<br \/>\npremeditation and  without any\tintention of doing more harm<br \/>\nthan was  necessary for\t the purpose  of  such\tdefence.  He<br \/>\nthought that  by indulging  in this imminently dangerous act<br \/>\nhe would  be able  to scare away the labourers and stop them<br \/>\nfrom continuing\t their unjustified agitation, the raising of<br \/>\nthe slogans  and the  throwing of  the brick-bats. But then,<br \/>\nalthough the  intention was not to kill or cause such bodily<br \/>\ninjury as was sufficient in the ordinary course of nature to<br \/>\ncause death, yet he must have committed the act knowing that<br \/>\nit  was\t  so  imminently  dangerous  that  it  must  in\t all<br \/>\nprobability cause  death or such bodily injury as was likely<br \/>\nto cause  death of  the worker\tor workers  standing on\t the<br \/>\nother side of the boundary wall.\n<\/p>\n<p><span class=\"hidden_text\">815<\/span><\/p>\n<p>     A question\t now arises whether the appellant was guilty<br \/>\nunder Part-I  of section  304 or  Part-II.  If\tthe  accused<br \/>\ncommits an  act while exceeding the right of private defence<br \/>\nby which  the death  is caused\teither with the intention of<br \/>\ncausing death  or with\tthe intention of causing such bodily<br \/>\ninjury as  was likely to cause death then he would be guilty<br \/>\nunder Part-I. On the other hand if before the application of<br \/>\nany of the Exceptions of section 300 it is found that he was<br \/>\nguilty of  murder within the meaning of clause &#8216;4thly&#8217;, then<br \/>\nno question  of such intention arises and only the knowledge<br \/>\nis to  be fastened on him that he did indulge in an act with<br \/>\nthe knowledge  that it was likely to cause death but without<br \/>\nany intention  to cause it or without any intention to cause<br \/>\nsuch bodily  injuries as  was likely  to cause\tdeath. There<br \/>\ndoes not seem to be any escape from the position, therefore,<br \/>\nthat the  appellant could be convicted only under Part-II of<br \/>\nsection 304 and not Part-I.\n<\/p>\n<p>     Even so  on the  facts and in the circumstances of this<br \/>\ncase we\t do not feel persuaded to let off the appellant with<br \/>\nan imposition  of  fine\t only.\tWe,  however,  thought\tthat<br \/>\nsentence of  three years&#8217;  rigorous imprisonment  would meet<br \/>\nthe ends  of justice  in this  case. We were informed at the<br \/>\nBar and\t an affidavit sworn by the appellant&#8217;s wife was also<br \/>\nfiled before us to the effect that the appellant was in jail<br \/>\nfor about  nine months\tas an  under trial  prisoner and for<br \/>\nabout four  months after  conviction. Thus  he\thas  already<br \/>\nundergone imprisonment\tfor a  period of  about a year and a<br \/>\nmonth. The occurrence took place more than a decade ago. The<br \/>\nappellant had  to pass this long ordeal all these years both<br \/>\nmentally  and\tfinancially.  Considering,   therefore,\t the<br \/>\ntotality  of   the  circumstances   while  maintaining\t the<br \/>\nimposition of fine of Rs. 10,000\/- and in default two years&#8217;<br \/>\nfurther imprisonment,  we reduce  his  substantive  term  of<br \/>\nimprisonment to\t the period  already undergone\tand maintain<br \/>\nthe conviction\tof the appellant not under Part-I of section<br \/>\n304 of the Penal Code but under Part-II.\n<\/p>\n<p>     In the  result the\t appeal is  dismissed but subject to<br \/>\nthe modification  made above  in regard\t to the\t appellant&#8217;s<br \/>\nconviction and sentence.\n<\/p>\n<pre>N.V.K.\t\t\t\t\t   Appeal dismissed.\n<span class=\"hidden_text\">816<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"<p>Supreme Court of India Mohinder Pal Jolly vs State Of Punjab on 14 December, 1978 Equivalent citations: 1979 AIR 577, 1979 SCR (2) 805 Author: N Untwalia Bench: Untwalia, N.L. PETITIONER: MOHINDER PAL JOLLY Vs. RESPONDENT: STATE OF PUNJAB DATE OF JUDGMENT14\/12\/1978 BENCH: UNTWALIA, N.L. BENCH: UNTWALIA, N.L. REDDY, O. CHINNAPPA (J) CITATION: 1979 AIR [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-116339","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Mohinder Pal Jolly vs State Of Punjab on 14 December, 1978 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mohinder-pal-jolly-vs-state-of-punjab-on-14-december-1978\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mohinder Pal Jolly vs State Of Punjab on 14 December, 1978 - Free Judgements of Supreme Court &amp; 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