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PETITIONER: MUNNEY KHAN

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT: 28/08/1970

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA DUA, I.D.

CITATION:  1971 AIR 1491            1971 SCR  (1) 943  1970 SCC  (2) 480  CITATOR INFO :  F          1974 SC1550  (2)

ACT: Indian Penal Code (Act 45 of 1860), ss. 96 to 101--Right of, private  defence--Nature of--Availability in the case  of  a free fight.

HEADNOTE: The  appellant was charged with the offence of murder.   The trial  court observed in its judgment that it appeared  that the  deceased  must  have  picked  up  a  quarrel  with  the appellant’s  brother,  that  the  deceased  overpowered  the appellant’s brother, threw him on the ground and sat on  his chest  giving him fist blows, and that since  the  appellant could  not, prevent the deceased hitting his brother by  the use of his fist, he stabbed the deceased in the back with  a knife.   The  trial  court found  the  appellant  guilty  of murder,  and the High Court dismissed his appeal  summarily, agreeing generally with the conclusions of the trial court. On the question of the nature of the offence, HELD  :  The  appellant had exceeded his  right  of  private defence and his guilty of culpable homicide not amounting to murder punishable under the first part of s.304, I.P.C. (Per Bhargava, J.) On the facts stated the deceased was  the aggressor  and  a right of self-defence of the body  of  his brother  had  accrued to the appellant.  But  the  right  is governed   by  s.  101,  I.P.C.,  and  is  subject  to   the limitations that in the exercise of the right death may  not be  caused,  and that the force used should not  exceed  the minimum  required to save the person in whose defence it  is used.  In the present case, the use of the knife itself  was in  excess of the right and it became much  more  excessive when the blow was given in a vital part of the victim’s body and was, in the ordinary, course of nature, likely to  cause his death. [945 G-H; 946 A-D] (Per  Dua, J.) The right of private defence is  codified  in ss. 96 to 100 I.P.C. By enacting these sections the  authors of the Code wanted to except from the operation of its penal clauses  classes of acts done in good faith for the  purpose of  repelling unlawful aggression.  This right is  available against  an offence and, therefore, where an act is done  in

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exercise of right of private defence such an act cannot give rise  to  a  right  of private  defence  in  favour  of  the aggressor  in return.  This would seem to be so even if  the person  exercising  the  right of private  defence  has  the better  of  his aggressor provided he does not  exceed his right  because  the  moment  be exceeds  it  he  commits  an offence.   There  is also no right of private  defence  when there  is time to have recourse to the protection of  public authorities.   This right is essentially a  defensive  right circumscribed by the statute, and should not be allowed as a pretext  for vindictive, aggressive or retributive  purpose. As  this right vests even in strangers for defence  of  body and  property of others against offences, the courts  should be  careful  in seeing that no one on the  mere  pretext  of exercise  of  right  of private defence  takes  sides  in  a quarrel between two or more persons and inflicts injuries on one or the other.  When two parties are having a free  fight without  disclosing  as to who is the initial  aggressor  it would be dangerous as a general rule 944 to  clothe either of them or a sympathizer with a  right  of private  defence.   If however, one of them is shown  to  be committing  an offence affecting human body then that  would give rise to such right. When there is no initial right  of private defence there can hardly be any question of  exceed- ing that right. [947 E-H; 948 A-B] in  the  present  borderline case the  facts  of  which  are peculiar  there was no firm finding by the trial court  that the  deceased  was guilty of unlawful aggression  or  of  an offence giving rise to the right of private of defence.   In view  of  the summary dismissal of the appeal  by  the  High Court in a brief order expressing general agreement with the conclusions  of the trial court the appellant was given  the benefit  of the trial court’s observation that the  deceased must have picked up a quarrel with Zulfikuar. [948 B-D]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 64  of 1968. Appeal  by special leave from the judgment and order  dated March 29, 1966 of the Madhya Pradesh High Court in  Criminal Appeal No. 104 of 1966. U.   P. Singh, for the appellant. I.   N. Shroff, for the respondent. The following Judgments were delivered by Bhargava,  J.  This  is an appeal by special  leave  by  one Munney Khan who has been convicted for the offence of murder punishable  under section 302 of the Indian Penal  Code  and sentenced  to  undergo rigorous imprisonment for  life.   In this case, it is net necessary to describe in detail the two versions  which were put forward by the prosecution and  the defence in the Court of Sessions.  It is sufficient to  give the  findings  of fact recorded by the Sessions  Judge,  who tried  the case, which have been affirmed by the High  Court of Madhya Pradesh. In  Berkhedi, the residents, in accordance with their  usual practice,  gathered  to  celebrate  "Durga  Utsav"  on   1st October,  1965 neat Kabir Mandir and, in that connection,  a drama  of "Amarsingh" was to be staged at about 10 or  10.30 p.m.  Reotisingh deceased was one of the volunteers who  was posted on duty in connection with the arrangements close  to the sitting place reserved for the ladies in order to  check men  from  entering  that area.  At about  10.30  p.m.,  the

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appellant and his brother Zulfiquar came and wanted to  pass through the ladies corner, but were prevented by  Reotisingh who  asked them to go via a lane, though that was  a  longer route.   The appellant being annoyed pushed  Reotisingh  and insisted on passing through the ladies corner.  There was  a short scuffle which subsided when other persons  intervened. After  a short while, Reotisingh went to his house in  order to  take his meals leaving his duty in charge of  Pooranlal. When Reotisingh was returning after taking his meals, he met the appellant 945 and  his brother Zulfiquar and a quarrel  started.   Though, according to the prosecution, the appellant and his  brother had  launched  the  attack, the  finding  recorded,  by  the Sessions  Judge is that it is much more likely that  it  was Reotisingh who picked up a quarrel with Zulfiquar first.  He overpowered Zulfiquar and threw him on the ground and sat on his_chest  giving  fist blows.  The appellant  Munney  Khan, seeing his brother being overpowered and beaten, came to his rescue  and  tried  to  save him by  giving  fist  blows  to Reotisingh.  When this did not succeed, he took out a  knife and stabbed Reotisingh in the back.  In the meantime,  other persons arrived; and the appellant and his brother Zulfiquar ran  away.  It may be mentioned at this stage that the  case put  forward’  by  the appellant was that he  did  not  stab Reotisingh.   According to him, Chotelal witness arrived  to intervene  and had a knife in his hand with  which  Chotelal aimed   a blow at the appellant who dodged it and  the  blow hit  Reotisingh.   This  version  of  the  defence  was  not supported  by  any  evidence  and  was  disbelieved  by  the Sessions Judge.  The Sessions Judge recorded the finding, as stated  by  us  earlier,  to the  effect  that  Munney  Khan appellant give the knife blow at the back of Reotisingh when he   found  that  he  could  not  prevent  Reotisingh   from continuing to shower fist blows on Zulfiquar by merely  fist blows to, Reotisingh. This version was accepted by the Sessions Judge on the basis of  the  evidence of eye-witnesses,  Manilal,  Chotelal  and Shankerlal,  which was corroborated by the evidence  of  two other witnesses Pooranlal and Motilal.  It was also in  line with the medical evidence.  This assessment of the  evidence was affirmed by the High Court.  On these facts as found  by the  Sessions  Judge  and affirmed by the  High  Court,  the appellant has been convicted for the offence of murder under S.  302, I.P.C. Even learned counsel for the  appellant  did not  advance  any  arguments before  us  to  displace  these findings of fact. However,  the main point that was canvassed and that  arises on  these facts is whether the conviction of  the  appellant for  the  offence under S. 302, I.P.C.  is  justified.   The findings  of fact show that the knife blow was given by  the appellant  to  Reotisingh when Reotisingh had  picked  up  a quarrel   with  the  appellant’s  brother   Zulfiquar,   had overpowered  him, was sitting on his chest, was giving  him, fist blows, and could not be prevented from doing so by  the appellant  by  mere  use of his  fist.   Clearly,  in  these circumstances, Reotisingh was the aggressor and was  causing hurt to Zulfiquar, the brother of the appellant so that a  I right  of self-defence of body of his brother Zulfiquar  had accrued  to the appellant.  That right, however,  could  not justify  the act of appellant in stabbing Reotisingh in  his back so as to cause his death.  The right of private defence was a very limited one.  It only extended to 946 causing  hurt  of  any kind to Reotisingh, but  it  did  not

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provide  any justification for giving a fatal blow.  Such  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 S. 302, I.P.C. As  a result, the appeal is partly allowed,  the  conviction under  s.  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’ rigorous imprisonment. Dua,  J.  I  agree.  The trial court in the  course  of  its judgment observed               "There  is nothing on record to show  how  the               quarrel  started.   It  seems  that  when  the               deceased  Reoti Singh was returning  from  his               house  to  the place of celebrations  he  must               have picked up a quarrel with Zulfikar whom he               overpowered  by  throwing him on  the  ground.               The  accused Munne, seeing his  brother  being               overpowered by the deceased must have come  to               his rescue and assaulted him (deceased)." 947 It  is  true that this observation was made  by  that  court while  dealing.  with the question of  common  intention  to murder  alleged  to have been shared by Zulfiquar  with  the appellant  and  it  is also true that  some  observation  in certain other parts of its judgment suggest that there was a free  fight  between  the  deceased  on  one  side  and  the appellant and his brother on the other.  Particularly in the portion  dealing with the question of the right  of  private defence, the trial court held that there was a hand to  hand scuffle between Zulfiquar and the deceased.  But in view  of the fact that the High Court summarily dismissed the  appeal in a brief order generally agreeing with the conclusions  of the  trial  court I am inclined to give  the  appellant  the benefit  of the trial court’s observation that the  deceased must  have picked up a quarrel with Zulfiquar.  We were  not taken through the evidence in this Court.

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I  would, however, like to state very briefly my opinion  on the  law of private defence and I propose doing so in  order to guard’. against a possible erroneous impression about  it arising  from the peculiar facts of this borderline case  in which there is no firm finding that the deceased was  guilty of  unlawful aggression or of an offence giving rise to  the right of private defence. The  right of private defence is codified in ss. 96 to  100, I.P.C. which have all to be read together in order to nave a  proper  grasp, of the scope and the limitations  of  this right.   By enacting these sections the authors of the  Code wanted  to  except from the operation of its  penal  clauses classes  of  acts  done in good faith  for  the  purpose  of repelling  unlawful  aggression.  This  right  is  available against  an offence and, therefore, where an act is done  in exercise  of  the right of private defence such  act  cannot give  rise to any right of private defence in favour of  the aggressor  in return.  This would seem to be so even if  the person  exercising  the  right of private  defence  has  the better  of  his  aggressor provided of course  he  does  not exceed  his  right  because the moment he exceeds  it,  he commits  an  offence.   There is also no  right  of  private defence in cases where there is time to have recourse to the protection  of  public  authorites.  The  right  of  private defence  is essentially a defensive right  circumscribed  by the  statute, available only when the circumstances  clearly justify  it.   It  should not be allowed to  be  pleaded  or availed  of  as a pretext for a  vindictive,  aggressive  or retributive  purpose.  According to S. 97 this  right  vests even  in strangers for the defence of the body and  property of  other persons against offenses mentioned therein.  the courts have, therefore, to be careful in seeing that no  one on the mere pretext of the exercise of the right of  private defence takes sides in a quarrel between two or more persons and  inflicts injuries on the one or the other.  In  a  case when two parties are having a free fight without  disclosing as to who is the initial aggressor it may be- 948 dangerous as a general rule to clothe either of them or  his sympathiser  with a right of private defence.  If,  however, one  of them is shown to be committing an offence  affecting human  body then would of course seem to give rise  to  such right.  If there is no initial right of private defence then there  can hardly be any question of exceeding  that  right. With  these observations which I have considered  proper  to make   in  order  to  guard  myself  against  any   possible misunderstanding  about  the precise scope of the  eight  of private defence I agree with my learned brother. V.P.S.                     Appeal allowed in part. 169Sap.  CI/71-14-9-71-GIPF.         1