http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8  

CASE NO.: Appeal (crl.)  887 of 1997 Special Leave Petition (crl.)  47-49 of 1998

PETITIONER: James Martin                                             

RESPONDENT: State of Kerala                                          

DATE OF JUDGMENT: 16/12/2003

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

         Self-preservation is the prime instinct of every human being. The  right of private defence is a recognized right in the criminal law.  Therefore, Section 96 of Indian Penal Code, 1860 (in short ’the IPC’)  provides that nothing is an offence which is done in the exercise of the  right of private defence. The question is, as happens in many cases,  where exercise of such rights is claimed, whether the "Lakshman Rekha",  applicable to its exercise has been exceeded.  Section 99 IPC delineates  the extent to which the right may be exercised.         The claim was made by the accused in the following background:   

       Appellant-James Martin faced trial along with his father\026Xavier  for alleged commission of offences punishable under Sections 302, 307,  326 read with Section 34 and Section 326 read with Section 114 IPC and  Sections 25(B)(1) of the of the Arms Act, 1959 (in short ’the Act’) and  Sections 27 and 30 thereof. Learned Sessions Judge, N. Paravur, found  the present appellant (A-1) guilty of offences punishable under Section  304 Part I, 326 and 324 IPC, while the other accused was found guilty of  the offences punishable under Section 304 Part I read with Section 34,  302 read with Sections 24, 324 IPC. Both the accused persons were  sentenced to undergo imprisonment for 7 years and for the second  offence, 2 years RI and fine of Rs.20,000/- with default stipulation of  1 year sentence. It was directed that in case fine was realized it was  to be paid to (PW-3). Each of the accused was also to undergo sentence  RI for 1 year for the offence punishable under Section 324 IPC and to  pay a fine of Rs.5,000/- with default stipulation of 6 months sentence.   The fine, if any on realisation, was directed to be paid to PW-7 and PW- 8. The fine was directed to be paid to (PW-8).  The sentences were  directed to run concurrently.   

       A-2 also filed a complaint against 24 persons, which was tried as  S.C. no.74 of 1991. In the said case some of the PWs and their  supporters were the accused.  State had launched prosecution against 12  of the said 24 persons.  The same as tried as S.C. no. 57 of 1990.   

       Several appeals and revisions were filed by the appellants, the  prosecution witnesses and the State.  Appeal filed by the accused  persons was numbered as criminal appeal no.4 of 1994. As complaint was  lodged by the accused alleging various offences by the prosecution  witnesses, a separate case (S.C. 74 of 1991) was registered in which  there was an acquittal. Against such acquittal also appeal was filed by  A-2 which was numbered as criminal appeal no. 471 of 1994.  Criminal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8  

appeal no. 784 of 1994 was filed by the State questioning acquittal in  S.C. 57 of 1990.  Father of one of the victims filed Crl. Revision Cr.RP  820 of 1994.     The propriety of conviction under Section 304 Part I  instead of Section 302 IPC was questioned by the State in Crl. Appeal  no. 312 of 1994. By a common judgment all matters were disposed of.  

       The matrix of the litigation related to a Bharat Bandh on  15.3.1998 sponsored by some political parties. Prosecution version as  unfolded during trial is as follows:  

       Most of the shops and offices were closed and vehicles were off  the road. There were isolated instances of defiance to the bundh call  and some incidents had taken place that, however, did not escalate to  uncontrolled dimensions. Cheranelloor, where the concerned incidents  took place, is a politically sensitive suburb of Kochi where accused- appellant James and his father Xavier had their residence, besides a  bread factory and a flour mill in the same compound.  It was not  anybody’s case that they belonged to any political party or had  credentials, which were unwholesome.  By normal reckoning, their  business activities flourished well.  They owned a tempo van and other  vehicles which were parked inside the compound itself. It was, however,  said that their success in business was a matter of envy for Thomas  Francis, their neighbour, particularly who filed complaints to the local  authorities against the conduct of the mill and the factory and also  filed a writ petition to get them closed down, but without success.  He  was one of the accused in S.C.No.74 of 1991 and according to the accused  appellant-James was the kingpin and that the incident was wrought by him  out of hatred and deep animosity towards James and Xavier.   

       The incident involved in this case took place at about 2.30 p.m.  on 15.3.1988 when five young men, the two deceased in this case, namely,  Mohan and Basheer (hereinafter referred to as ’deceased’ by their  respective name), and PW-1, PW-2 and PW-4, who were activists of the  bundh, as followers of the political parties which organized that bundh  on that day, got into the flour mill of the A-2 through the unlocked  gate leading access to that mill situate in a property comprising the  residential building, a bread factory and other structures belonging to  that accused.  This group of five men on passing beside the mill of A-2  while they were perambulating the streets of Cheranelloor to have a  first hand information as to the observance of the bundh on coming to  know of the operation of the flour mill by A-2 proceeded to that place  and made demands to PW-15, the employee of A-2 who was operating the  mill to close down.  An altercation took place between them and on  hearing the commotion the accused, A-1 and A-2 who were inside their  residential building, situate to the west of that mill, rushed to the  place and directed the bundh activists to go out of the mill. As the  activists of the bundh persisted in their demands for closing the mill,  according to the prosecution, A-2 got out of the mill and on the  instruction given by A-2, A-1 locked the gate of the compound from  inside.  Then both of them rushed back to the house with A-2 directing  A-1 to take out the gun and shoot down the bundh activists by declaring  that all of them should be finished off.  On getting into the house and  after closing the outer door of that building, both the accused rushed  to the southern room of that building which faced the gate with a window  opening to that side.  The 1st accused on the instigation of the 2nd  accused, his father, and having that accused beside him, fired at the  bundh activists, who by that time had approached near the locked gate,  by using an S.B.B.L. Gun through the window. The first shot fired from  the gun hit against one of the bundh activists, who had got into the  compound, namely Basheer, and he fell down beside the gate. The other  four bundh activists on requesting the 1st accused not to open fire  rushed towards Basheer and, according to the prosecution, the first  accused fired again with the gun indiscriminately causing injuries to  all of them. Even when the first shot was fired from the gun passersby  in the road situate in front of that property also sustained injuries.  

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8  

When the firing continued as stated above some of the residents of the  area who were standing beside the road also received gun shot injuries.  On hearing the gun shots people of the locality rushed to the scene of  occurrence and some of them by scaling over the locked gate broke opened  the lock and removed the injured to the road, from where they were  rushed to the hospital in a tempo van along with the other injured who  had also sustained gun shot injuries while they were standing beside the  road.  One among the injured, namely, Mohanan breathed his last while he  was transported in the tempo to the hospital and another, namely,  Basheer, succumbed to his injuries after being admitted at City  Hospital, Ernakulam.  All the other injured were admitted in that  hospital to provide them treatment for the injuries sustained. After the  removal of the injured to the hospital in the tempo as aforesaid a  violent mob which collected at the scene of occurrence set fire to the  residential building, flour mill, bread factory, household articles,  cycles, a tempo and scooter, parked in front of the residential building  of the accused, infuriated by the heinous act of the accused in firing  at the bundh activists and other innocent people as aforesaid.  Soon  after the firing both the accused and PW-15 escaped from the scene of  occurrence and took shelter in a nearby house.

       The information as to the occurrence of a skirmish and altercation  between bundh activists and the accused and of an incident involving  firing at Cheranelloor was received by the police at Kalamassery Police  Station from the Fire Station at Gandhi Nagar, Ernakulam, which was  informed of such an incident over phone by a resident living close to  the place of occurrence.

       The accused on the other hand, took the stand that the firing  resulting in the death of two bundh activists and sustaining of grievous  injuries to several others occurred when their house and other  buildings, situated in a common compound bounded with well protected  boundary walls, and movable properties kept therein were set on fire by  an angry mob of bundh activists when the accused failed to heed their  unlawful demand to close down the flour mill which was operated on that  day.                  

       The trial Court discarded the prosecution version that the  deceased and PWs who had sustained injuries had gone through the gate as  claimed.  On analysing the evidence it was concluded that they had  scaled the walls.  Their entry into premises of the accused was not  lawful.  It was also held that PW-15 was roughed up by the bandh  activists, making him runaway. A significant conclusion was arrived at  that they were prepared and in fact used muscle power to achieve their  ends in making the bandh a success. It was categorically held that the  bandh activists on getting into the mill threatened, intimidated and  assaulted PW-15 so as to compel him to close downs the mill. He  sustained injuries, and bandh activists indulged in violence before the  firing took place at the place of occurrence.  Accused asked PW-1, PW-2  and PW-4 to leave the place.  It was noticed by the trial Court that the  activists were in a foul and violent mood and had beaten up one Jossy,  and this indicated their aggressive mood.  They were armed with sharp  edged weapons.  Finally, it was concluded that the right of private  defence was exceeded in its exercise.                On consideration of the evidence on record as noted above, the  conviction was made by the trial Court and sentence was imposed.  The  trial Court came to hold that though the accused persons claimed alleged  exercise of right of private defence same was exceeded. The view was  endorsed by the High Court by the impugned judgment so far as the  present appellant is concerned.  But benefit of doubt was given to A-2,  father of the present appellant.

       Mr. Sushil Kumar, learned senior counsel for the appellant  submitted that the factual scenario clearly shows as to how the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8  

appellant was faced with the violent acts of the prosecution witnesses.  Admittedly, all of them had forcibly entered into the premises of the  appellant.  PW-15 one of employees was inflicted severe injuries. In  this background, the accused acted in exercise of right of private  defence and there was no question of exceeding such right, as held by  the trial Court and the High Court.

       In response, learned counsel for the State submitted that after  analyzing the factual position the trial Court and the High Court have  rightly held that the accused exceeded the right of private defence and  when two persons have lost lives, it cannot be said that the act done by  the accused was within the permissible limits.  He also pressed for  accepting prayer in the connected SLPs relating to acquittal of A-2 and  conviction of the accused-appellant under Section 304 Part I.      

Only question which needs to be considered, is the alleged  exercise of right of private defence. Section 96, IPC provides that  nothing is an offence which is done in the exercise of the right of  private defence. The Section does not define the expression ’right of  private defence’. It merely indicates that nothing is an offence which  is done in the exercise of such right. Whether in a particular set of  circumstances, a person legitimately acted in the exercise of the right  of private defence is a question of fact to be determined on the facts  and circumstances of each case.  No test in the abstract for determining  such a question can be laid down.  In determining this question of fact,  the Court must consider all the surrounding circumstances.  It is not  necessary for the accused to plead in so many words that he acted in  self-defence. If the circumstances show that the right of private  defence was legitimately exercised, it is open to the Court to consider  such a plea.  In a given case the Court can consider it even if the  accused has not taken it, if the same is available to be considered from  the material on record. Under Section 105 of the Indian Evidence Act,  1872 (in short ’the Evidence Act’), the burden of proof is on the  accused, who sets up the plea of self-defence, and, in the absence of  proof, it is not possible for the Court to presume the truth of the plea  of self-defence. The Court shall presume the absence of such  circumstances. It is for the accused to place necessary material on  record either by himself adducing positive evidence or by eliciting  necessary facts from the witnesses examined for the prosecution. An  accused taking the plea of the right of private defence is not  necessarily required to call evidence; he can establish his plea by  reference to circumstances transpiring from the prosecution evidence  itself.  The question in such a case would be a question of assessing  the true effect of the prosecution evidence, and not a question of the  accused discharging any burden.  Where the right of private defence is  pleaded, the defence must be a reasonable and probable version  satisfying the Court that the harm caused by the accused was necessary  for either warding off the attack or for forestalling the further  reasonable apprehension from the side of the accused. The burden of  establishing the plea of self-defence is on the accused and the burden  stands discharged by showing preponderance of probabilities in favour of  that plea on the basis of the material on record. (See Munshi Ram and  Ors. v. Delhi Administration (AIR 1968 SC 702), State of Gujarat v. Bai  Fatima (AIR 1975 SC 1478), State of U.P. v. Mohd. Musheer Khan (AIR 1977  SC 2226), and Mohinder Pal Jolly v. State of Punjab (AIR 1979 SC 577).  Sections 100 to 101 define the extent of the right of private defence of  body. If a person has a right of private defence of body under Section  97, that right extends under Section 100 to causing death if there is  reasonable apprehension that death or grievous hurt would be the  consequence of the assault.  The oft quoted observation of this Court in  Salim Zia v. State of U.P. (AIR 1979 SC 391), runs as follows:

"It is true that the burden on an accused  person to establish the plea of self-defence is not  as onerous as the one which lies on the prosecution

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8  

and that, while the prosecution is required to prove  its case beyond reasonable doubt, the accused need  not establish the plea to the hilt and may discharge  his onus by establishing a mere preponderance of  probabilities either by laying basis for that plea in  the cross-examination of the prosecution witnesses or  by adducing defence evidence."

The accused need not prove the existence of the right of private defence  beyond reasonable doubt.  It is enough for him to show as in a civil  case that the preponderance of probabilities is in favour of his plea.

       The number of injuries is not always a safe criterion for  determining who the aggressor was.  It cannot be stated as a universal  rule that whenever the injuries are on the body of the accused persons,  a presumption must necessarily be raised that the accused persons had  caused injuries in exercise of the right of private defence. The defence  has to further establish that the injuries so caused on the accused  probabilise the version of the right of private defence.  Non- explanation of the injuries sustained by the accused at about the time  of occurrence or in the course of altercation is a very important  circumstance.  But mere non-explanation of the injuries by the  prosecution may not affect the prosecution case in all cases.  This  principle applies to cases where the injuries sustained by the accused  are minor and superficial or where the evidence is so clear and cogent,  so independent and disinterested, so probable, consistent and credit- worthy, that it far outweighs the effect of the omission on the part of  the prosecution to explain the injuries. [See Lakshmi Singh v. State of  Bihar (AIR 1976 SC 2263)]. A plea of right of private defence cannot be  based on surmises and speculation. While considering whether the right  of private defence is available to an accused, it is not relevant  whether he may have a chance to inflict severe and mortal injury on the  aggressor. In order to find whether the right of private defence is  available to an accused, the entire incident must be examined with care  and viewed in its proper setting. Section 97 deals with the subject  matter of right of private defence. The plea of right comprises the body  or property (i) of the person exercising the right; or (ii) of any other  person; and the right may be exercised in the case of any offence  against the body, and in the case of offences of theft, robbery,  mischief or criminal trespass, and attempts at such offences in relation  to property. Section 99 lays down the limits of the right of private  defence. Sections 96 and 98 give a right of private defence against  certain offences and acts. The right given under Sections 96 to 98 and  100 to 106 is controlled by Section 99. To claim a right of private  defence extending to voluntary causing of death, the accused must show  that there were circumstances giving rise to reasonable grounds for  apprehending that either death or grievous hurt would be caused to him.  The burden is on the accused to show that he had a right of private  defence which extended to causing of death. Sections 100 and 101, IPC  define the limit and extent of right of private defence.

       Sections 102 and 105, IPC deal with commencement and continuance  of the right of private defence of body and property respectively. The  right commences, as soon as a reasonable apprehension of danger to the  body arises from an attempt, or threat, or commit the offence, although  the offence may not have been committed but not until there is that  reasonable apprehension.  The right lasts so long as the reasonable  apprehension of the danger to the body continues.  In Jai Dev. v. State  of Punjab (AIR 1963 SC 612), it was observed that as soon as the cause  for reasonable apprehension disappears and the threat has either been  destroyed or has been put to route, there can be no occasion to exercise  the right of private defence.

In order to find whether right of private defence is available or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8  

not, the injuries received by the accused, the imminence of threat to  his safety, the injuries caused by the accused and the circumstances  whether the accused had time to have recourse to public authorities are  all relevant factors to be considered. Similar view was expressed by  this Court in Biran Singh v. State of Bihar (AIR 1975 SC 87). (See:  Wassan Singh v. State of Punjab (1996) 1 SCC 458, Sekar alias Raja  Sekharan v. State represented by Inspector of Police, T.N. (2002 (8) SCC  354).

       As noted in Butta Singh v. The State of Punjab (AIR 1991 SC 1316),  a person who is apprehending death or bodily injury cannot weigh in  golden scales in the spur of moment and in the heat of circumstances,  the number of injuries required to disarm the assailants who were armed  with weapons. In moments of excitement and disturbed mental equilibrium  it is often difficult to expect the parties to preserve composure and  use exactly only so much force in retaliation commensurate with the  danger apprehended to him where assault is imminent by use of force, it  would be lawful to repel the force in self-defence and the right of  private-defence commences, as soon as the threat becomes so imminent.   Such situations have to be pragmatically viewed and not with high- powered spectacles or microscopes to detect slight or even marginal  overstepping.  Due weightage has to be given to, and hyper technical  approach has to be avoided in considering what happens on the spur of  the moment on the spot and keeping in view normal human reaction and  conduct, where self-preservation is the paramount consideration.  But,  if the fact situation shows that in the guise of self-preservation, what  really has been done is to assault the original aggressor, even after  the cause of reasonable apprehension has disappeared, the plea of right  of private-defence can legitimately be negatived.  The Court dealing  with the plea has to weigh the material to conclude whether the plea is  acceptable. It is essentially, as noted above, a finding of fact.

       The right of self-defence is a very valuable right, serving a  social purpose and should not be construed narrowly. (See Vidhya Singh  v. State of M.P. (AIR 1971 SC 1857).  Situations have to be judged from  the subjective point of view of the accused concerned in the surrounding  excitement and confusion of the moment, confronted with a situation of  peril and not by any microscopic and pedantic scrutiny. In adjudging the  question as to whether more force than was necessary was used in the  prevailing circumstances on the spot it would be inappropriate, as held  by this Court, to adopt tests by detached objectivity which would be so  natural in a Court room, or that which would seem absolutely necessary  to a perfectly cool bystander. The person facing a reasonable  apprehension of threat to himself cannot be expected to modulate his  defence step by step with any arithmetical exactitude of only that much  which is required in the thinking of a man in ordinary times or under  normal circumstances.             

       In the illuminating words of Russel (Russel on Crime, 11th Edition  Volume I at page 49):

"....a man is justified in resisting by force anyone  who manifestly intends and endeavours by violence or  surprise to commit a known felony against either his  person, habitation or property. In these cases, he is  not obliged to retreat, and may not merely resist the  attack where he stands but may indeed pursue his  adversary until the danger is ended and if in a  conflict between them he happens to kill his  attacker, such killing is justifiable."

       The right of private defence is essentially a defensive right  circumscribed by the governing statute i.e. the IPC, available only when

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8  

the circumstances clearly justify it. It should not be allowed to be  pleaded or availed as a pretext for a vindictive, aggressive or  retributive purpose of offence.  It is a right of defense, not of  retribution, expected to repel unlawful aggression and not as  retaliatory measure.  While providing for exercise of the right, care  has been taken in IPC not to provide and has not devised a mechanism  whereby an attack may be a pretence for killing. A right to defend does  not include a right to launch an offensive, particularly when the need  to defend no longer survived.         

           The background facts as noted by the trial Court and the High  Court clearly show that the threat to life and property of the accused  was not only imminent but did not cease, and it continued unabated. Not  only there were acts of vandalism, but also destruction of property. The  High Court noticed that explosive substances were used to destroy the  properties of the accused, but did not specifically answer the question  as to whether destruction was prior or subsequent to the shooting by the  accused.  The High Court did not find the prosecution evidence  sufficient to decide the question. In such an event the evidence of PW- 15 who was also a victim assumes importance. The High Court without  indicating any acceptable reason held on mere assumptions that his  sympathy lies with the accused. The conclusion was unwarranted, because  the testimony was acted upon by the Courts below as a truthful version  of the incident. The trial Court found that an unruly situation  prevailed in the compound of the accused as a result of the violence  perpetrated by the bandh activists who got into the place by scaling  over the locked gate and that their entry was unlawful too, besides  intimidating and assaulting PW-15 and making him flee without shutting  down the machines.  The circumstances were also found to have  necessitated a right of private defence. Even the High Court, candidly  found that tense situation was caused by the deceased and his friends,  that PW-15 suffered violence and obviously there was the threat of more  violence to the person and properties, that the events taking place  generated a sort of frenzy and excitement rendering the situation  explosive and beyond compromise. Despite all these to expect the accused  to remain calm or to observe greater restraint in the teeth of the  further facts found that the accused had only PW-15 who was already  manhandled though they were outnumbered by their opponents (the bandh  activists) and whose attitude was anything but peaceful \026 would be not  only too much to be desired but being unreasonably harsh and  uncharitable, merely carried away only by considerations of sympathy for  the lives lost, on taking a final account of what happened ultimately  after everything was over. In the circumstances, the inevitable  conclusion is that the acts done by the accused were in the reasonable  limits of exercise of his right of private defence and he was entitled  to the protection afforded in law under Section 96 IPC.

       Accordingly we set aside the conviction and sentence imposed. The  appeal is allowed. The bail bonds shall stand discharged so far as the  present accused is concerned.             In view of the order passed in criminal appeal no. 887 of 1997,  and conclusions arrived at therein no further orders are necessary to be  passed in SLP (Criminal) Nos. 47-49 of 1998 filed by the State of  Kerala.

       Before we part with the case it needs to be noted that in the name  of Hartal or Bandh or strike no person has any right to cause  inconvenience to any other person or to cause in any manner a threat or  apprehension of risk to life, liberty, property of any citizen or  destruction of life and property, and the least any government or public  property.  It is high time that the authorities concerned take serious  note of this requirement while dealing with those who destroy public  property in the name of strike, hartal or bandh. Those who at times may

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8  

have even genuine demands to make should not loose sight of the overall  situation eluding control and reaching unmanageable bounds endangering  life, liberty and property of citizens and public, enabling anti-social  forces to gain control resulting in all around destruction with counter  productive results at the expense of public order and public peace. No  person has any right to destroy another’s property in the guise of bandh  or hartal or strike, irrespective of the proclaimed reasonableness of  the cause or the question whether there is or was any legal sanction for  the same. The case at hand is one which led to the destruction of  property and loss of lives, because of irresponsible and illegal acts of  some in the name of bandh or hartal or strike. Unless those who organize  can be confident of enforcing effective control over any possible turn  of events, they should think twice to hazard themselves into such risk  prone ventures endangering public peace and public order. The question  whether bandh or hartal or strike has any legal sanctity is of little  consequence in such matters. All the more so when the days are such  where even law-enforcing authorities/those in power also precipitate to  gain political advantage at the risk and cost of their opponents. Unless  such acts are controlled with iron hands, innocent citizens are bound to  suffer and they shall be the victims of the highhanded acts of some  fanatics with queer notions of democracy and freedom of speech or  association. That provides for no license to take law into their own  hands. Any soft or lenient approach for such offenders would be an  affront to rule of law and challenge to public order and peace.