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PETITIONER: DEO NARAIN

       Vs.

RESPONDENT: THE STATE OF U.P.

DATE OF JUDGMENT11/12/1972

BENCH: DUA, I.D. BENCH: DUA, I.D. ALAGIRISWAMI, A. VAIDYIALINGAM, C.A.

CITATION:  1973 AIR  473            1973 SCR  (3)  57  1973 SCC  (1) 347

ACT: Indian Penal Code (Act 45 of 1860), Ss. 100 and 102-Right of private defence-Scope of.

HEADNOTE: There  was  a clash between the parties of the  accused  and complainant  over the possession of certain land;  in  which the appellant inflicted a fatal spear injury on the chest of the  deceased. in a prosecution for offences under  s.  302 and  s. 302/149, I.P.C., the trial court and the High  Court found  that  the party of the complainant  had  deliberately come  to forcibly prevent or obstruct the possession of  the accused  persons,  and that such  forcible  obstruction  and prevention  were  unlawful.   But  while  the  trial   Court acquitted  all  the accused on the ground that  the  accused were  exercising  their tight of private defence,  the  High Court held that the ,appellant exceeded his right of private defence  on the sole ground that he had used his spear  with greater  force  than  was necessary, that  he  had  given  a dangerous  blow with considerable force with a spear on  the chest of the deceased though he himself had only received  a superficial lathi blow on his head, and convicted him for an offence under s. 304. Allowing the appeal to this Court. HELD:The  High Court erred in convicting the  appellant on  the  g round  that  he exceeded  his  right  of  private defence. [60D-E] To say that the appellant could only claim the right to  use force  after  he  had  sustained a  serious  injury  by  an aggressive  wrongful assault is a complete  misunderstanding of  the  law embodied in s. 102, I.P.C. According to  that section  the right of private defence of the body  commences as  soon as a reasonable apprehension of danger to the  body arises  from  an attempt or threat to  commit  the  offence, though  the  offence may not have been committed,  and  such right  continues so long as such apprehension of  danger  to the  body continues.  The threat, however,  must  reasonably give rise to the present and imminent, and not to remote  or distant,  danger.   This right rests on the  principle  that where a crime is endeavored to be committed by force, it  is lawful  to repel that force in self-defence.  The  right  of

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private   defence  is  available  for   protection   against apprehended  unlawful aggression and not for  punishing  the aggressor  for  the  offence  Committed by  him..  It  is  a preventive and not a punitive right.  If, after sustaining a serious injury there is no apprehension of further danger to the  body then obviously the right of private defence  would not be available. [60D-H, 61A] Therefore,  as soon as the appellant reasonably  apprehended danger to his body even from a threat (which is real) on the part  of  the  complainant’s party to assault  him  for  the purpose of forcibly taking possession of the land in dispute or  of  obstructing their cultivation, he got the  right  of private  defence  and  to use  adequate  force  against  the wrongful aggressor in exercise of that right. [61A-B] (b)The approach of the High Court that merely because  the complainant’s  party had used lathis, the appellant was  not justified  in  using his spear is equally  misconceived  aid cannot be supported under s. 100, 58 I.P.C. During the course of malee, like the present, the use of  a  lathi  on  the head may very  well  give  rise  to  a reasonable  apprehension that death or grievous  hurt  would result  from  an injury caused thereby.  It cannot  be  laid down  as  a  general rule that the use of a  lathi  as  dis- tinguished  from the use of a spear must always be  held  to result only in milder injury, because, a blow by a lathi  on the head may prove instantaneously fatal.  Therefore, if  a- blow  with  a lathi is aimed at a vulnerable part  like  the head  it cannot be laid down as a sound proposition  of  law that in such cases the victim is not justified in using  his spear  in defending himself.  In such moments of  excitement or  disturbed mental equilibrium it is difficult  to  expect parties  facing grave aggression to coolly weigh, as  if  in golden scales, and calmly determine with a composed mind  as to  what precise kind and severity of blow would be  legally sufficient for effectively meeting the unlawful  aggression. The  view  of  the High Court is not  only  unrealistic  and unpractical  but also contrary to law and in  conflict  with its  own  observations, while acquiting the  other  accused, that in such cases the matter cannot be weighed in scales of gold. [61D-H, 62A-B]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 192 of 1969 April 30, 1969 of the Allahabad High Court in Govt.   Appeal No. 1373 of 1966. U.P. Singh and Sri Ram Tiwari, for the appellant. D. P. Uniyal, and R. Bana, for the respondent The Judgment of the Court was delivered by DUA,  J.  This appeal is by special leave  and  is  directed against  the conviction of the appellant Deo Narain, by  the High  Court  of  Judicature at Allahabad on  appeal  by  the State,  against the judgment and the order of  the  Sessions Judge of Ghazipur acquitting five accused persons, including the appellant of various charges including the charge  under ss.  302/149,  I.P.C.  and in  the  alternative  the  charge against the appellant under S. 302, I.P.C. It  appears that there was some dispute with respect to  the possession  of  certain plots of land  in  village  Baruara, Police  Station Dildarnagar, District Ghazipur.  There  were several  legal  proceedings between the rival  parties  with respect  to  both title and possession of  the  said  plots.

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On,, September 17th 1965 after 12noon  there was  a  clash between the party of the accused and the     party  of   the complainant.   Both  sides lodged reports with  the  police. The  appellant Deo Narain, along with Chanderdeo and  Lalji, two  of  the other accused persons acquitted  by  the  trial court, whose acquittal was confirmed by the High Court, went to the police station Dildarnagar and made a report  against the  complainant’s party about the occurrence at about  5.45 p.m. on September 17, 1965 but, as the Station House Officer had  already  received information from the  chowkidar  that these accused persons had cased the death of one Chanderama, he took them 59 into  custody.   Ram Nagina on behalf of  the  complainant’s party  lodged  the report with the  police  station  Kotwali which  was adjacent to the District Hospital,  Ghazipur  and did not go to the police station Dildarnagar for making  the report  because of the long distance.  The  Sessions  Judge, after an exhaustive discusSion of the evidence produced both by  the prosecution and the defence, came to the  conclusion that  the  possession  of the disputed  plots  of  land  was undoubtedly  with  the- accused persons.  The  only  further question  which  required determination by the  trial  court was,  if  the complainant’s party had gone to the  plots  in question with an aggressive design to disturb the possession of   the accused person by unlawful use of force and if  the accused  persons had exceeded the right of private,  defence in beating and killing Chandrama and causing injuries to the other members of the complainant’s party.  According to  the trial court the complainant’s party had actually gone to the plots in question for the purpose of preventing the  accused persons from cultivating and ploughing the said land.  After considering the evidence on the record the trial court  felt great  difficulty in agreeing with either of the  two  rival versions  given by the prosecution and the  defence  witness Mangla  Rai about the manner in which the marpeet had  taken place.   The  learned Sessions  Judge,  however,  considered himself  to be on firm ground in holding that  the  injuries suffered by Chanderdeo and Deo Narain rendered it  difficult to  believe  that  they had inflicted  injuries  with  their spears  on Bansinarain and others.  In his opinion, had  the accused  persons  been the aggressors they  would  not  have abstained from causing injury to Rai Narain who was actually ploughing  the  field.  In view of  this  improbability  the learned  Sessions  Judge  did  not find  it  easy  to  place reliance on the statements of the prosecution witnesses  Tin Taus,  Rajnarain,  Suresh  and  Bansinarain.   Again,  after examining  the  injuries sustained by the  members  of  both parties, the learned Sessions Judge felt that Deo Narain and Chanderdeo must have received injuries on their heads before they inflicted injuries on the members of the  complainant’s party.  On  this  view the accused  were  held  entitled  to exercise  the right of private defence, and to inflicit  the injuries  in  question in exercise of that  right.   On  the basis of this conclusion the accused were acquitted. On appeal by the State the High Court upheld the conclusions of the trial court that the accused persons had the right of private  defence and that they were justified in  exercising that right.  But in its opinion that right had been exceeded by  the appellant Deo Narain in inflicting the spear  injury on the chest of Chandrama, deceased.  Chandrama had received one lacerated wound on the right side of his skull and  one. incised  wound on the left shoulder with a  punctured  wound 41" deep on the right side of the chest- 60

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The last injury was responsible for his death. This  injury, according to the High Court, was given by-the appellant  Deo Narain  with his spear.  The reasoning of the High Court  in convicting  the  appellant is, broadly stated, that  it  was only  if  the  complainant’s party  had  actually  inflicted serious  injury  on the accused that the  right  of  private defence  could arise, justifying the causing of  death.   In the  present case as only two members’ of the party  of  the accused   persons,  namely,  Chanderdeo  and   Deo   Narain, appellant, had received injuries which though on the,  head, were  not  serious, they were not justified in  using  their spears.   On  this reasoning the High  Court  convicted  the appellant, of an offence under s. 304, I.P.C. and  sentenced him to rigorous imprisonment for five years. Before us the appellant  learned counsel has, after  reading the  relevant  part  of the impugned judgment  of  the  High Court, submitted that the High Court has misdirected  itself with  regard to the essential ingredients and scope  of  the right of private defence.  Our attention has been drawn to a recent decision of this Court in G. V. Subranmanyam v. State of  Andhra  Pradesh(1)  where the scheme  of  the  right  of private defence of person and property has been analysed. In  our opinion, the High Court does seem to have  erred  in law  in convicting the appellant on the ground that  he  had exceeded the right of private defence.  What the High  Court really seems to have missed is the provision of law embodied in  s.  102, I.P.C. According to that section the  right  of private  defence  of  the  body  commences  as  soon  as   a reasonable apprehension of danger to the body arises from an attempt  or  threat  to commit it he offence  ,  though  the offence  may  not  have  been  committed,  and  such   right continues so long as such apprehension of danger to the body continues.   The threat, however, must reasonably give  rise to  the  present and imminent, and not  remote  or  distant, danger.   This  right rests on the  general  principle  that where a crime is endeavored to be committed by force, it  is lawful to repel that force in self-defence.  To say that the appellant  could only claim the right to use force after  he had  sustained  a serious injury by an  aggressive  wrongful assault  is  section.  The  right  of  private  defence   is available forprotection    against-apprehended    unlawful aggression and not forpunishing ,the  aggressor  for  the offence committed by him. It isa   preventive  and   not punitive right. The right to punish forthe  commission   of offences  vests in the State (which has a duty  to  maintain law and order) and not in private individuals.If   after sustaining  a  serious injury there is  no  apprehension  of further (1)  [1970] 3 S.C.R. 473 61 danger  to  the  body then obviously the  right  of  private defence would not be available.  In our view, therefore,  as soon  as the appellant reasonably apprehended danger to  his body even from a real threat on the part of the party of the complainant  to  assault  him for the  purpose  of  forcibly taking possession of the plots in dispute or of  obstructing their  cultivation, he got the right of private defence  and to  use  adequate force against the  wrongful  aggressor  in exercise  of that right.  There can be little doubt that  on the  conclusions- of the two courts below that the party  of the complainant had deliberately come to forcibly prevent or obstruct the possession of the accused persons and that this forcible  obstruction  and  prevention  was  unlawful,   the appellant  could reasonably apprehend imminent  and  present danger to his body and to his companions.  The  complainants

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were  clearly  determined to use maximum  force  to  achieve their  end.  He was thus fully justified in using  force  to defend himself and if necessary also his companions  against the apprehended danger which was manifestly imminent.  Again the  approach  of  the High Court that  merely  because  the complainant’s  party had used lathis, the appellant was  not justified  in  using his spear is no less  misconceived  and insupportable.   During  the course of a marpeet,  like  the present,  the use of a lathi on the head may very well  give rise  to  a reasonable apprehension that death  or  grievous hurt would result from an injury caused thereby.  It  cannot be  laid down as a general rule that the use of a  lathi  as distinguished from the us,-- of, a spear must always be held to result only in milder injury.  Much depends on the nature of  the lathi, the part of the body aimed at and  the  force used in giving the blow.  Indeed, even a spear is capable of being so used as to cause a very minor injury The High Court seems  in this connection to have overlooked  the  provision contained  in  s. 100, I.P.C. We do not  have  any  evidence about the size or the nature of the lathi.  The blow, it  is known, was aimed at a vulnerable part like the head.  A blow by  a lathi on the head may prove instantaneously fatal  and cases  are not unknown in which such a blow by a  lathi  has actually proved instantaneously fatal.  If, therefore a blow with a lathi is aimed at a vulnerable part like the head  we do not think it can be laid down as a sound, Proposition  of law ’that in such cases the victim is not justified in using his  spear  in  defending  himself.   In  such  moments   of excitement  of disturbed mental Equilibrium it  is  somewhat difficult  to  expect  parties facing  grave  aggression  to coolly  weigh, as if in golden scales, and calmly  determine with a composed mind as to what precise kind and severity of blow would be legally sufficient for effectively meeting the unlawful aggression.  No doubt, the High Court does seem  to be  aware of this aspect because the other  accused  persons were given the benefit of this rule.  But while dealing with the  appellant’s  case curiously enough the High  Court  has denied him the right 62 of  private defence on the sole ground that he had  given  a dangerous  blow with considerable force with a spear on  the chest of the ,deceased though he himself had only received a superficial  lathi blow on his head.  This view of the  High Court  is  not  only unrealistic and  unpractical  but  also contrary  to  law and indeed even in conflict with  its  own observation that in such cases the matter .cannot be weighed in scales of gold. Besides, it could not be said on the facts and circumstances ;of  this case that the learned Sessions Judge had taken  an erroneous or a wholly unreasonable view on the evidence with regard to the right ’of private defence when acquitting  all the accused persons.  No doubt, on appeal against  acquittal the  High Court is entitled to reappraise the  evidence  for itself  but when the evidence is capable of  two  reasonable views,  then, the view taken by the trial court demands  due consideration.   It  is  noteworthy  that  the  High   Court considered the learned Sessions Judge to be fully  justified in  acquitting the other accused persons and it was only  in the case of the present appellant that the right of  private defence  was  considered to have been exceeded on  the  sole ground  that  he  had used his spear on  the  chest  of  the deceased  with greater force than was necessary  to  prevent the   deceased   from   committing   unlawful    aggression. Apparently  the  High Court seems to have implied  that  the appellant should have used the spear as a lathi and not  the

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spearhead for defending himself or should have given a  less forceful thrust of the spear or on a less vulnerable part of the  body  and not on the chest, in order to be  within  the legitimate  limits of the right of private  defence.   This, as al ready stated, is an erroneous approach because at such moments  an average human being cannot be expected to  think calmly  and  control his action by weighing as to  how  much injury would sufficiently meet the aggressive designs of his opponents.   As  a  result there  is  clear  miscarriage  of justice. For the foregoing reasons this appeal succeeds and  allowing the same we acquit the appellant. V.P.S.                                                Appeal allowed. 63