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CASE NO.: Appeal (crl.)  732 of 2002

PETITIONER: Kashi Ram & Others

RESPONDENT: State of Rajasthan

DATE OF JUDGMENT: 28/01/2008

BENCH: S.B. Sinha & Dalveer Bhandari

JUDGMENT: JUDGMENT

Dalveer Bhandari, J.

    This appeal is directed against the judgment dated  04.02.2002 in Criminal Appeal No.826 of 2001 passed by the  High Court of judicature for Rajasthan at Jodhpur.               Brief facts, which are necessary to dispose of this appeal  are recapitulated as under:-            The land measuring 21 bighas is located in village  Bhinan, Tehsil Taranagar and the ownership of the same was  recorded in the name of Smt. Chhoti Devi w/o Budh Singh  Rajput and after her demise, the land was transferred in the  name of Balu Singh.

       The accused, Nanuram submitted an application before  the Tehsildar, Taranagar and disclosed that he had bought the  said land on the basis of agreement to sell from Smt. Chhoti  Devi at a consideration of Rs.1200/- and he is in possession of  the land and is cultivating the same. It was alleged that the  transfer in the name of Balu Singh had been wrongly recorded  in the revenue records.  The Tehsildar, after some enquiry  cancelled the entry of transfer recorded in the name of Balu  Singh.              On 13th June, 1999 at about 10 a.m., the complainant  party consisting of Amar Singh PW4, his father Balu Singh  (since deceased),  Bahadur Singh PW8, Nanuram Nai PW1 and  Prithvi Singh PW17 went to cultivate Khasra No.512 situated  in village Bhinan Tehsil, Taranagar District Churu.  At that  time, the accused persons were not there but on learning  about the presence of the complainant party in Khasra No.  512 around 12 noon on the same day, the accused party  consisting of Nanuram accused-appellant along with the  acquitted 6 persons came from the side of village, armed with  gandasa, lathis and axes and attacked the members of the  complainant party and caused serious injuries to Amar Singh  PW4, Nanuram Nai PW1 and Balu Singh.  Balu Singh  succumbed to those injuries in the hospital on the same day  at 6 p.m.              Amar Singh PW4 lodged the first information report.  The  accused persons were apprehended and on their voluntary  disclosure statements, lathis, gandasa and axes were  recovered and after usual examination, they were charged  under section 302 read with sections 149, 148 and 323 IPC.  

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The accused-appellants in their statements under section 313  of the Code of Criminal Procedure denied all the incriminating  evidence and pleaded that they were in possession of the  agricultural land and the complainant party wanted to  dispossess them forcibly.  In the process of protecting the  possession of their land, a scuffle between the parties took  place.  Amar Singh PW4 and Balu Singh from the side of the  complainant party received injuries and Gopiram from the side  of accused appellants also received injuries.              According to the members of the complainant party, they  were totally unarmed at the time of the incident and the  accused persons who were armed with lathis, gandasa and  axes had inflicted serious injuries on them.  The injuries on  the person of Balu Singh were medically examined.  The  doctor found the following external injuries:  (1)    lacerated wound \026 6 cm x 1 cm x bone deep on  vertex of skull,  

(2)     lacerated wound \026 5 cm x bone deep in the  right frontal prominence region,  

(3)     lacerated wound \026 3 cm x 1 cm x bone deep on  occipital region of head and  

(4)     four abrasions on right middle leg, left knee  and posterior region of left leg.                   All the aforesaid injuries were found to have been caused  with blunt weapon and x-ray was advised in respect of three  lacerated wounds.

       On the post-mortem of Balu Singh\022s body, it was revealed  that apart from abrasions, three lacerated wounds,  haematoma was present and the fracture of bone was  detected.  The brain was squeezed.  In the opinion of doctor,  cause of death of Balu Singh was shock due to aforesaid three  lacerated injuries on his person.

       On the head of Amar Singh four lacerated wounds on left  parietal region, middle of forehead, right leg and two other  lacerated wounds and middle region of left leg were found by  the doctor.  According to the doctor, these injuries were  caused by a blunt weapon.

       On Nanuram, lacerated wound on occipital region of  head, upper left near ear region respectively and contusion on  left shoulder were found.  All the above three injuries were  caused by a blunt weapon.  Gandasa, lathis and other  weapons of offence were recovered at the instance of the  accused appellants. Blood-stained clothes of the deceased  Balu Singh were seized by the police and clothes, earth etc.  were sent to Forensic Laboratory for examination.   In the  serological examination human blood was detected in the  blood-stained earth and on the deceased\022s shirt, dhoti and  baniyan, however, no blood was found on the weapons  recovered by the police.   In the formal investigation of the  case, no case was made out against Sri Chand, Dula Ram, Lilu  Ram and Pappu and charge-sheet against the remaining 11  accused persons was filed in the court of the learned Judicial  Magistrate, Taranagar.  On committal, the case was sent to  the Court of Sessions.

       The prosecution, in order to support and strengthen its

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case has examined 25 witnesses and placed reliance on 78  documents on record.  The statements of the accused persons  were recorded under section 313 Cr.P.C. wherein the accused  denied the prosecution version and claimed themselves  innocent and asserted that a false case has been made out  against them. It was asserted by the appellants that Nanuram  and Kashiram bought the disputed land from Smt. Chhoti  Devi through agreement to sell dated 23.4.1965 and since  then Nanuram has been in possession and was paying land  revenue.  It was further submitted that on 13.9.1999, on the  basis of the information received that Balu Singh and his sons  along with other 15-20 persons went to their field (Khasra No.  512) on a tractor with the intention to take forcible possession  of the field by cultivating it.  About 100-150 people of village  Bhinan went to stop them from doing so.  They were armed  with variety of weapons.  They inflicted serious injuries on  Amar Singh and Balu Singh.   

    The defence has produced DW1 Dr. Haleef, DW2  Mahender Singh and DW3 Nanuram. In the documentary  evidence, extracts of statements of witnesses Nanuram, Mohan  Kunwar, Amar Singh, Bhawan Singh, Moti Ram Patwari,  Bhanwar Singh and written report by Dr. Mahesh Panwar to  the SHO Police Station Taranagar, letter of SHO and injury  report of Gopiram and copies of traced out site plans have  been produced.

       The prosecution mainly relied on PW2 Lal Chand, PW5  Het Ram, PW6 Lilu Ram, PW7 Moman Ram, PW12 Gulab  Singh, PW13 Moti Ram, PW14 Manohar Lal and PW23 Pala  Ram, investigating officer.

       According to the investigating officer, the accused- appellants were in possession of the field where the occurrence  took place.  The complainant party went to this field with the  intention to take its possession.  The members of the  complainant party were asked not to ply the tractor on the  field.  Despite the resistance the field was cultivated by the  complainant party. On learning that the complainant party  was cultivating Khasra No.512, the accused appellants in a  group of 15-20 people fully armed with different weapons,  reached the said Khasra and attacked the complainant party.   The case of the appellants as culled out from evidence is that  the accused appellants were compelled to use force in order to  protect the lives and property and their case is fully covered by  the right of private defence.   In this view of the matter,  presence of the accused appellants cannot be doubted.            The entire evidence on record had been scrutinized in  detail by the learned Additional Sessions Judge.  On  evaluation of the entire evidence it has been fully established  by the learned Additional Sessions Judge that the fatal  injuries were inflicted by Kashiram and other serious injuries  were caused by Dharam Pal, Jagdish and Rupa Ram on the  persons of Balu Singh and Amar Singh in furtherance of their  common object of killing the members of the complainant  party.           

    The trial court acquitted six accused and convicted five  accused appellants.            From the analysis of the evidence by the trial court, it is  abundantly clear that the accused appellants were in  possession of Khasra No. 512.   The complainant party had  gone to cultivate the said Khasra at 10 a.m. on 13th June,

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1999.  At that time, the accused appellants were not there but  on learning that the complainant party was cultivating the  field, they reached there armed with varieties of weapons and  caused serious injuries on the members of the complainant  party.  Admittedly, the members of the complainant party were  totally unarmed.  The appellants were responsible for causing  fatal injury on Balu Singh and other serious injuries on Amar  Singh and Nanuram.  According to the findings of the Sessions  Court, the accused appellants had exceeded the right of  private defence.              Kashiram was convicted under Section 304 Part-II and  was sentenced to 5 years rigorous imprisonment.  Other 4  accused, namely, Dharam Pal, Jagdish, Rupa Ram and Om  Prakash inflicted injuries on Amar Singh and Nanuram were  convicted under Section 304 Part-II read with section 149 IPC  and they were also sentenced to 5 years rigorous  imprisonment.  They were also convicted under section 323  IPC.             The High Court again examined the entire evidence and  came to a clear conclusion that the accused appellants had  exceeded in their right of private defence.  They caused serious  injuries to Balu Singh which proved fatal.  They also caused  serious injuries to Amar Singh and Nanuram.  Injuries of such  serious nature were totally unwarranted because the members  of the complainant party were totally unarmed.              The finding of the High Court regarding accused  appellants\022 private defence reads as under:-   \023Therefore, the learned trial court has rightly held  that the accused persons have exceeded their right  of private defence of property.\024                  The High Court also came to the conclusion that in the  facts and circumstances the trial court has correctly evaluated  the entire evidence on record and has taken a very lenient  view.  The High Court did not find any mitigating  circumstance to interfere with the quantum of sentence.            The appellants aggrieved by the said judgment of the  High Court have preferred this appeal before this court.   

       It was submitted by the learned counsel appearing for  the appellants that the High Court failed to appreciate that the  disputed land was in possession of the accused persons and  the complainant party came to their field to dispossess them  and their acts, if any, are fully covered by the right of self  defence.  It is also submitted that the appellants had filed a  suit against the complainant party prior to this incident and  an injunction was granted against the complainant party by  the Revenue Court on 10.5.1999 and it was found that the  accused appellants were in possession of the disputed land.                The appellants also submitted that it is a case of over  implication because of previous enmity.  According to the  appellants, since they were in possession of the land in  dispute, therefore, no offence under section 304 Part-II IPC  can be made out against them.                  We have heard the learned counsel for the appellants and  the State. We have also perused the judgment of the trial court  and the record of the case.  The Sessions Court and the High  Court found that the appellants were in possession of Khasra

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No.512 and the complainant party at about 10 a.m. on 13th  June, 1999 went to cultivate Khasra No.512.  The appellants  were not there.  The appellants learnt that the members of the  complainant party were cultivating the said field, the accused  appellants armed with gandasa, lathis and axes came to the  field and assaulted the members of the complainant party  when they were unarmed.  Appellant Kashiram inflicted  gandasa blow on Balu Singh from the reverse side and that  injury proved fatal. The gandasa has been recovered at the  instance of Kashiram.  According to the report of the Chemical  Examiner, human blood was detected from the blood-stained  clothes of the deceased.  The earth collected from the spot also  contained human blood.  Since the appellant Kashiram did not  use the front side of gandasa, therefore, the trial court instead  of convicting him under section 302 IPC convicted him under  section 304 Part-II IPC.  In view of our finding that the  appellants were in possession of Khasra No.512 and the  appellants had gone to take back possession of Khasra No.512  from the members of the complainant party, had inflicted fatal  blow on Babu Singh and other serious injuries on the  members of the complainant party.   

    The question which arises for our adjudication is that in  the facts and circumstances of this case whether the accused  appellants are protected by the right of private defence as  enumerated by section 96 of the Indian Penal Code.               Sections 96 to 106 deal with various facets of the right of  private defence.  Before determining the controversy in this  case, we deem it proper to deal with these provisions in brief.    

       Section 96 IPC reads as under:         \02396. Things done in private defence.-   Nothing is an offence which is done in the exercise  of the right of private defence.\024

       Section 97 of IPC gives right to a person to defend his  body and the property.  But, this right is subject to  restrictions contained in section 99.  Section 99 IPC reads as  under:-

\02399.  Acts against which there is no right of  private defence. -  There is no right of private  defence against an act which does not reasonably  cause the apprehension of death or of grievous hurt,  if done, or attempted to be done, by a public servant  acting in good faith under colour of his office,  though that act, may not be strictly justifiable by  law.

There is no right of private defence against an act  which does not reasonably cause the apprehension  of death or of grievous hurt, if done or attempted to  be done, by the direction of a public servant acting  in good faith under colour of his office, though that  direction may not be strictly justifiable by law.

There is no right of private defence in cases in  which there is time to have recourse to the  protection of the public authorities.

Extent to which the right may be exercised. -   The right of private defence in no case extends to  the inflicting of more harm than it is necessary to  inflict for the purpose of defence.\024

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       The main question that arises for adjudication in this  case is whether the accused appellants had right of private  defence and this is the case of exceeding the right of private  defence meaning thereby, inflicting more harm than it was  necessary for the purpose of defence.              Section 100 of the Indian Penal Code deals with a  situation when the right of private defence of the body extends  of causing death.  The relevant portion of the section reads as  under:- \023100 -  When the right of private defence of the  body extends to causing death. -  The right of  private defence of the body extends, under the  restrictions mentioned in the last preceding section,  to the voluntary causing of death or of any other  harm to the assailant, if the offence which occasions  the exercise of the right be of any of the descriptions  hereinafter enumerated, namely:-

First. \026 Such an assault as may reasonably cause  the apprehension that death will otherwise be the  consequence of such assault;

Secondly. \026 Such an assault as may reasonably  cause the apprehension that grievous hurt will  otherwise be the consequence of such assault;

Thirdly. -              xxx             xxx                     xxx Forthly. -              xxx             xxx                     xxx Fifthly. \026           xxx             xxx                     xxx Sixthly. -              xxx             xxx                     xxx\024

    Section 103 IPC deals with a situation when the right of  private defence of property extends to causing death.  Section  103 IPC reads as under:- \023103. When the right of private defence of  property extends to causing death. -  The right of  private defence of property extends, under the  restrictions mentioned in section 99, to the  voluntary causing of death or of any other harm to  the wrong-doer, if the offence, the committing of  which, or the attempting to commit which,  occasions the exercise of the right, be an offence of  any of the descriptions hereinafter enumerated,  \005\005\005..\024            Admittedly, the members of the complainant party were  totally unarmed. Even if the case of the accused appellants is  accepted in toto that in order to take back the possession of  Khasra No.512 some injuries were inflicted but the act of the  appellants in causing death cannot be covered by the ambit of  section 96 IPC.  According to the findings of courts below, it  was clearly a case of exceeding the right of private defence.   The appellants indeed inflicted more harm than it was  necessary for the purpose of defence.                 The right of private defence is codified in sections 97 to  106 of the Indian Penal Code and all these sections will have  to be read together to ascertain whether in the facts and  circumstances the accused appellants are entitled to right of  private defence or they exceeded the right of private defence.   Only when all these sections are read together, we get

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comprehensive view of the scope and limitation of that right.   The position of law is well-settled for over a century both in  England and India.

       Almost 150 years ago in Queen v. Fuzza Meeah alias  Fuzza Mahomed (1866) 6 WR (Cr) 89 because of exceeding  the right of private defence, the appellants were convicted, but  the sentence of imprisonment was reduced.

       In another case decided during the same period in Queen  v. Shunker Sing, Kukhoor Sing (1864) 1 WR (Cr) 34, the  court for exceeding the right of private defence convicted the  accused and reduced the sentence.               This court also on several occasions dealt with the cases  of exceeding the right of private defence.  In  The Munney  Khan v. State of Madhya Pradesh (1970) 2 SCC 480, this  court for exceeding the right of private defence converted the  sentence of the accused appellant from under section 302 IPC  to section 304 IPC.  The relevant portion of the judgment reads  as under:- \023Such a right of private defence is governed by  Section 101, I.P.C. and is subject to two limitations.   One is that, in exercise of this right of private  defence, any kind of hurt can be caused, but not  death; and the other is that the use of force does  not exceed the minimum required to save the  person in whose defence the force is used.  In these  circumstances, in the present case, when Zulfiquar  was being given fist blows only, there could be no  justification at all for the appellant to stab  Reotisingh with a knife and particularly to give him  a blow which could prove fatal by aiming it on his  back.  The use of the knife itself was in excess of the  right of private defence and it became much more  excessive when the blow with the knife was given on  a vital part of the body which, in the ordinary  course of nature, was likely to cause the death of  Reotisingh.   From the fact that the blow was given  in the back with a knife an inference follows that  the appellant intended to cause death or at least  intended to cause such injury as would, in the  ordinary course of nature, result in his death.  In  adopting this course, the appellant would have been  clearly guilty of the offence of murder had there  been no right of private defence of Zulfiquar at all.   Since such a right did exist, the case would fall  under the exception under which culpable homicide  does not amount to murder on the ground that the  death was caused in exercise of right of private  defence, but by exceeding that right.  An offence of  this nature is made punishable under the first part  of Section 304, I.P.C.  Consequently, the conviction  of the appellant must be under that provision and  not under Section 302 I.P.C.

       As a result, the appeal is partly allowed, the  conviction under Section 302, I.P.C. is set aside,  and the appellant is convicted instead under the  first part of Section 304, I.P.C.  In view of the  change in the offence for which the appellant is  being punished, we set aside the sentence of  imprisonment for life, and instead, award him a  sentence of seven years\022 rigorous imprisonment.\024         

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    In Balmukund & Another v. State of Madhya Pradesh  (1981) 4 SCC 432 this court while dealing with the facts of  similar nature converted the conviction from section 302 IPC  to section 304 IPC.  Relevant observations of the court reads  as under:- \023In rural landscape even today dispute as to  possession of agricultural land is a part of life.  Occupancy of land being the only source of survival,  emotional attachment apart, the struggle for  survival leads to fierce fight and resort to arms to  protect possession because in the context of tardy  slow moving litigative process actual possession has  ceased to be mere nine point in law but it has  assumed alarming proportions. Years upon years  spent in legal conundrums moving vertically  through hierarchy of courts coupled with the cost  and time to throw out a trespasser or even a rank  trespasser provides occasionally provocation to  resort to physical violence. The use of the firearm  used to be spasmodic but it has started becoming a  recurring malady. But right of private defence  cannot be judged step by step or in golden scales.  Once we accept the finding of the High Court that  the appellants had the right of private defence of  person and property meaning thereby that the  appellants were the victims and the complainants  were aggressors, but in the facts of the case they  exceeded the same by wielding a firearm, a sentence  of 10 years\022 rigorous imprisonment would appear to  us in the facts and circumstances of the case to be  a little bit too harsh.  

Having given our earnest consideration to the  question of sentence alone in this case, we are of  the opinion that Balmukund, Appellant 1, should be  sentenced to rigorous imprisonment for five years,  and simultaneously the sentence of seven years  under Section 307, Indian Penal Code awarded to  Appellants 1 and 2 both be reduced to three years  each. The substantive sentences should run  concurrently.\024            

    In another case, while dealing with a case of self defence  in Dharam Pal & Others v. State of U.P. 1994 Supp (3) SCC  668, this court for exceeding the right of private defence  instead of convicting the accused appellant under section 302  read with section 149 IPC, converted the sentence under  section 304 Part-I IPC.                In Mahabir Choudhary v. State of Bihar (1996) 5 SCC  107, this court held that the High Court erred in holding that  the appellants had no right of private defence at any stage.   However, this court upheld the judgment of the Sessions  Court holding that since the appellants had right of private  defence to protect their property, but in the circumstances of  the case, the appellants had exceeded their right of private  defence and were, therefore, rightly convicted by the trial court  under section 304 Part-I.  The court observed that the right of  private defence cannot be used to kill the wrongdoer unless  the person concerned has a reasonable cause to fear that  otherwise death or grievous hurt might ensue in which case  that person would have full measure of right of private defence  including killing.         

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    We have examined the cases of exceeding of the right of  private defence.  In the instant case, both the Sessions Court  and the High Court came to the conclusion that the accused  appellants were guilty of exceeding the right of private defence  and instead of convicting them under section 302 convicted  them under section 304 Part-II along with 149 IPC.               Both the Sessions Court and the High Court clearly came  to the conclusion that the accused appellants in a group of 15- 20 people armed with variety of weapons had gone to Khasra  No.512 where the complainant party was cultivating.  The  accused appellants in order to dispossess the members of the  complainant party attacked them and caused serious injuries  to the members of the complainant party in which Balu Singh  died.  Admittedly, the members of the complainant party were  totally unarmed.  From perusal of the entire evidence on  record, it is abundantly clear that the accused appellants were  the aggressor and they attacked the complainant party when  they were totally unarmed.  It is settled legal position that the  right of private defence cannot be claimed when the accused  are aggressors particularly when the members of the  complainant party were totally unarmed.  This Court in the  recent judgment in Bishna alias Bhiswasdeb Mahato &  Others v. State of West Bengal (2005) 12 SCC 657  exhaustively dealt with this aspect of the matter.  The facts of  this case are akin to the facts of the instant cases.  In this  case, the Court while relying on the earlier judgments of this  Court, clearly came to the conclusion that the right of private  defence cannot be claimed when the accused is an aggressor.              In the said case, this Court relied on Preetam Singh v.  State of Rajasthan (2003) 12 SCC 594.  In this case, the  Court clearly held that the appellants were the aggressors,  therefore, the question of the appellants having the right of  private defence or exceeding it does not arise.  The plea of  private defence is not at all available to the appellants.             In the instant case, the appellants were the aggressor.   They inflicted serious injuries on the unarmed complainant  party by a variety of weapons causing the death of Balu Singh  and also inflicted serious injuries on other members of the  complainant party.               Private defence can be used only to ward off unlawful  force, to prevent unlawful force, to avoid unlawful detention  and to escape from such detention as held by this court in  Bishna\022s case (supra). In the said judgment the relevant  portion of Kenny\022s Outlines of Criminal Law and Criminal Law  by J.C. Smith and Brian Hogan have been quoted. We deem it  appropriate to reproduce the same.  \023It is natural that a man who is attacked should  resist, and his resistance, as such, will not be  unlawful. It is not necessary that he should wait to  be actually struck, before striking in self-defence. If  one party raises up a threatening hand, then the  other may strike. Nor is the right of defence limited  to the particular person assailed; it includes all who  are under any obligation, even though merely social  and not legal, to protect him. The old authorities  exemplify this by the cases of a husband defending  his wife, a child his parent, a master his servant, or  a servant his master (and perhaps the courts would  now take a still more general view of this duty of the  strong to protect the weak).\024            

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    The learned author further stated that self-defence,  however, is not extended to unlawful force:  \023But the justification covers only blows struck in  sheer self-defence and not in revenge. Accordingly  if, when all the danger is over and no more blows  are really needed for defence, the defender  nevertheless strikes one, he commits an assault  and battery. The numerous decisions that have  been given as to the kind of weapons that may  lawfully be used to repel an assailant, are merely  applications of this simple principle. Thus, as we  have already seen, where a person is attacked in  such a way that his life is in danger he is justified  in even killing his assailant to prevent the felony.  But an ordinary assault must not be thus met by  the use of firearms or other deadly weapons\005\005\024          In Browne 1973 NI 96 (NI at p. 107] Lowry, L.C.J. with  regard to self-defence stated:  \023The need to act must not have been created by  conduct of the accused in the immediate context of  the incident which was likely or intended to give rise  to that need.\024  

       As regards self-defence and prevention of crime in  Criminal Law by J.C. Smith & Brian Hogan, it is stated:  \023Since self-defence may afford a defence to murder,  obviously it may do so to lesser offences against the  person and subject to similar conditions. The  matter is now regulated by Section 3 of the Criminal  Law Act, 1967. An attack which would not justify D  in killing might justify him in the use of some less  degree of force, and so afford a defence to a charge  of wounding, or, a fortiori, common assault. But the  use of greater force than is reasonable to repel the  attack will result in liability to conviction for  common assault, or whatever offence the degree of  harm caused and intended warrants. Reasonable  force may be used in defence of property so that D  was not guilty of an assault when he struck a bailiff  who was unlawfully using force to enter D \022s home.  Similar principles apply to force used in the  prevention of crime.\024  

       The right of private defence is a very valuable right and it  has been recognized in all free, civilized and democratic  societies within certain reasonable limits (see Gottipulla  Venkatasiva Subbrayanam & Others v. The State of  Andhra Pradesh & Another (1970) 1 SCC 235.   

    Russel in his celebrated book on Crimes (11th Edn.) p.491  has stated:- \023A man is justified in resisting by force any one who  manifestly intends and endeavours by violence or  surprise to commit a known felony against his  person, habitation or property.  In these cases he is  not obliged to retreat and not merely to resist the  attack where he stands but may indeed pursue his  adversary until the danger is ended. If and in a  conflict between them he happens to kill his  attacker such killing is justifiable.\024

    Blackstone [Commentaries Book 4; P. 185] also observed  as under:- \023The party assaulted must, therefore, flee as far as

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he conveniently can either by reason of some wall,  ditch, or some other impediment; or as far as the  fierceness of the assault will permit him; for it may  be so fierce as not to yield a step, without manifest  danger of his life, or enormous bodily harm; and  then in his defence he may kill his assailant  instantaneously. And this is the doctrine of universal  justice, as well as of the municipal law.\024 (Emphasis  supplied).

       Halsbury\022s Laws of England, Fourth Edition, Vol.11 pp.  630-631 dealt with self-defence and defence of property.  The  relevant portion in paras 1180-1181 reads as under:-

\0231180. Self-defence.  A person acting in self- defence is normally acting to prevent the  commission of a crime, as is a person acting in  defence of another.  The test to be applied in such  cases is now established to be the same as for cases  of prevention of crime, that is the force used in self- defence or in defence of another must be reasonable  in the circumstances

Provided the force used is reasonable a person is  entitled to defence not only himself or a member of  his family, but even a complete stranger if the  stranger is subject to unlawful attack by others.

In deciding whether the force used was reasonable,  all the circumstances may be considered.   The  matter is one of fact and not one of law, hence it  cannot be ruled that a person who is attacked must  retreat before retaliating.  A person\022s opportunity to  retreat with safety is a factor to be taken into  account in deciding whether his conduct was  reasonable, as is his willingness to temporize or  disengage himself before resorting to force. A man is  not obliged to refrain from going where he may  lawfully go because he has reason to believe that he  may be attacked, and is not thereby deprived of his  right of self-defence.

1181.  Defence of property.  Where a person in  defending his property is also acting in the  prevention of crime then he may use such force as  is reasonable in the circumstances.  Where no crime  is involved, as where there is merely a trespass, the  same rule of reasonable force in the circumstances  is applicable. If in using reasonable force the  defendant should accidentally kill another, the  killing would not amount to murder or man- slaughter.  It would not, in general, be reasonable to  kill in defence of property alone, although it has  been held that a man may lawfully kill, a trespasser  who would forcibly dispossess him of his house.\024

       In Mohammad Khan & Others v. State of Madhya  Pradesh (1971) 3 SCC 683 in para 11, this court has rightly  concluded that the right of self-defence only arises if the  apprehension is unexpected and one is taken unawares.  If  one enters into an inevitable danger with the fullest intimation  beforehand and goes there armed to fight out, the right cannot  be claimed.

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       Careful analysis of the right of private defence as codified  in sections 96 to 106 IPC and the legal position as crystallized  by a number of judgments leads to an irresistible conclusion  that the findings of the Sessions Court as upheld by the High  Court in the instant case regarding the appellants\022 exceeding  the right of private defence are wholly erroneous and  untenable.

       The right of private defence is purely preventive and not  punitive.  This right is available only to ward off the danger of  being attacked; the danger must be imminent and very real  and it cannot be averted by a counter-attack.

       In view of the facts of this case, the accused appellants  did not have the right of private defence.  Therefore, they  cannot legitimately claim any benefit by invoking the principle  of right of private defence.   

       The acts of the accused appellants of proceeding to a  definite destination with lethal weapons and thereafter  causing serious injuries including fatal injuries on the  unarmed members of the complainant party can never  legitimately claim the benefit of the provisions of the right of  private defence.  Since the accused appellants did not have the  right of private defence, therefore, the findings of the courts  below regarding their exceeding the right of private defence  cannot be sustained and are accordingly set aside.

       Since there is no appeal by the State against acquittal of  the accused appellants under sections 302 IPC, therefore it is  not necessary for us to deal with the aspect whether their  acquittal under section 302 was justified or not.

       The Sessions Court convicted accused Kashiram under  section 304 Part-II and the other appellants under section 304  Part-II read with section 149 IPC.  In the impugned judgment  the High Court has upheld their conviction.

       On consideration of the peculiar facts and circumstances  of the case the conviction and sentence of the accused  appellants as recorded by the courts below do not warrant any  interference.  The appeal being devoid of any merit is  accordingly dismissed.

       The accused appellants are directed to surrender  forthwith to suffer the remaining sentence.