REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.            OF 2008 (Arising out of SLP (Crl.) No. 6777 of 2007)

Madan and Ors. ...Appellants  

versus

State of Madhya Pradesh ...Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.  

2. Challenge in this appeal is to the judgment of a Division

Bench  of  Madhya  Pradesh  High  Court,  Indore  Bench

upholding  the  conviction  of  the  appellants  for  offence

punishable  under  Section  302  read  with  Section  149  and

Section 323 read with Section 149 of the Indian Penal Code,

1860 (in short the ‘IPC’). Each of the appellants was sentenced

to undergo  RI  for  life  and to pay  a fine  of  Rs.1,000/-  with

default stipulation.

3. The  prosecution  case  as  unfolded  during  trial  is  as

follows:

In the intervening night of 3rd and 4th July, 1991 at about

12.00 in village Khandakhedi Kishanlal (hereinafter referred to

as  the  ‘deceased’),  his  wife  Sampatbai  and  daughter

Premlatabai were sleeping inside their house. At that moment

appellants  and  deceased  accused  Jalu  @  Jalamsingh  and

juvenile accused Jeevan reached at their house. They broke

open the wooden door, while abusing the inmates and reached

in  the  courtyard.  They  told  deceased  Kishanlal  that  they

would not permit  him to  take his  she-buffallows from their

field  and  asked  as  to  why  deceased  made  a  complaint  in

Tehsil/Revenue Court. They also threatened to eliminate him.

While saying all these, appellants Madan and Kamal caught

2

hold both the hands of Kishanlal and threw him near the wall,

thereafter assaulted him by lathi. Sampatbai, wife of deceased

Kishanlal  (PW-2)  cried  for  help.  She  and  her  daughter

Premlata  (PW-1)  tried  to  save  deceased  but  both  were

assaulted  by  lathi.  Umraobai  (PW-3)  was  assaulted  by  the

deceased accused Jalu @ Jalamsingh when she tried to rescue

the  deceased.  Babulal  (PW-7)  after  hearing  the  cry  reached

over  there  and  he  was  also  assaulted  by  accused  persons.

When  Ramsingh  (PW-8)  and  Premsingh  (PW-9)  arrived,

appellants fled away. The deceased fell unconscious and died

on  the  way  to  police  station.  Premlata  (PW-1),  Sampatbai,

Umraobai,  Babulal,  Premsingh  alongwith  village  Chowkidar

Anarsingh  reached  at  the  police  station  at  4.00  a.m.  and

lodged the report (Ex.P-1) which was recorded by SHO (PW-12)

Nandlal.  The  injured  persons  were  sent  for  medical

examination and treatment. Their medical reports are Ex.P-24

to  P-28.  After  preparation  of  inquest  report  (Ex.P-11)  dead

body of Kishanlal was sent to hospital and postmortem was

conducted by Dr. A.S. Rana (PW-13) who issued postmortem

report  (Ex.P-29).  Investigating  Officer  prepared  spot  map

3

(Ex.P-2)  and  also  effected  seizure  of  blood  stained  earth,

controller  earth,  pieces  of  sticks  vide  Ex.P-3 from the  spot.

Through seizure  memo (Ex.P-4)  pieces  of  bangles,  pieces  of

glass of watch and roof tiles were seized. Patvari Govindram

(PW-6)  prepared  the  spot  map  (Ex.P-10).  After  arrest,  on

disclosure statement of the accused persons lathis were seized

and seized articles were sent with covering letter (Ex.P-23) to

FSL,  Sagar.  Dr.  Rana  also  gave  report  (Ex.P-30)  after

examination  of  lathis  seized  from the  accused  persons.  On

completion of the investigation charge sheet was filed before

the  learned  JMFC,  Sanwer  against  the  appellants  and

deceased accused Jalu @ Jalam and juvenile accused Jeevan

was produced and charge sheeted before the juvenile Court as

directed by the trial  Court  because  he was found below 16

years  of  age.  During  the  course  of  trial,  accused  Jalu  @

Jalamsingh died, therefore, case against him was closed.

The  appellants  denied  the  charges  and  pleaded

innocence. They examined three witnesses in defence whereas

prosecution  examined  15  witnesses  and  adduced  31

4

documents in evidence. The trial Court found the appellants

guilty, convicted them as aforenoted.  

Before  the  High  Court  the  stand  taken  was  to  the

exercise of the right of private defence. It was pointed out that

the deceased and prosecution witnesses were aggressors. In

any event, when the appellants had assaulted, then in right of

private defence they are entitled to get the benefit of exception

in terms of Sections 96 and 97 IPC. The High Court turned

down the stand and upheld the conviction.  

4. In  support  of  the  appeal,  learned  counsel  for  the

appellants submitted that most of the injuries were  on non

vital  parts.  It  has been  established  that  injuries  have  been

sustained by the appellants in the same incident.  The High

Court had exercised the appellate power under Section 386 (b)

(ii)  of  the  Code  of  Criminal  Procedure,  1973  (in  short  the

‘Code’) and had altered the finding of the trial Court in para 27

that the appellants were injured in the same incident in which

the deceased and injured witnesses were assaulted and it was

5

held that as per own saying by the defence  the appellants

sustained injuries  at the  house  of  the appellant-Kamal.   In

essence, it was pointed out that the trial Court and the High

Court  should  have  accepted  the plea  of  exercise  of  right  of

private defence.  

5. Learned counsel  for the respondent-State on the other

hand submitted  that  there  was  injury  on  the  head  though

there was no fracture and the rest were on non vital parts of

the body. Nevertheless, even according to own saying of the

accused appellants, there was no question of exercise of right

of private defence.  

6. 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.

6

Section 97 IPC 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 IPC lays down the limits of the right of

private defence. Sections 96 and 98 IPC give a right of private

defence  against  certain  offences  and  acts.  The  right  given

under Sections 96 to 98 and 100 to 106 IPC is controlled by

Section 99 IPC. 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.  

7

7. 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 that 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.  

8. The above position was highlighted in Rizan and Another

vs. State of Chhattisgarh, through the Chief Secretary, Govt. of

Chhattisgarh, Raipur, Chhatttisgarh (2003 (2) SCC 661), and

Sucha Singh and Anr. v.  State of Punjab (2003 (7) SCC 643)

and  Raj Pal and Ors. v.  The State of Haryana (2006 (9) SCC

678).

8

9. The High Court observed that according to the appellants

incident occurred in two difference places in difference phases

and  in  the  incident  of  assault  to  the  deceased  and  the

witnesses they were not present and they sustained injuries

caused by the deceased and some of the injured witnesses at

the house of Kamal. The High Court has in part accepted the

stand of the appellants that they were exercising the right of

private defence, but at the same time the evidence also shows

that  the  appellants  committed  criminal  trespass.  Therefore,

they cannot claim the benefit of exception of having acted in

exercise of right of private defence.  

10. On  a  combined  reading  of  the  judgments  of  the  trial

Court and the High Court it is clear that the evidence is to the

effect  that  the  accused  appellants  were  upto  some  stage

exercising the right to protect and defend their properties. But

thereafter they exceeded the right. Therefore, this appears to

be  a case  where  instead of  convicting the  appellants  under

Section 302 IPC it would be proper to convict the appellants

9

for  offence  punishable  under  Section  304  Part  I,  IPC.

Custodial sentence of 10 years would meet the ends of justice.

11. The appeal is allowed to the aforesaid extent.  

…………………………….J. (Dr. ARIJIT PASAYAT)

……………………………J. (P. SATHASIVAM)

New Delhi, July 11, 2008             

10