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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: NIYAMAT & ORS.

DATE OF JUDGMENT14/04/1987

BENCH: OZA, G.L. (J) BENCH: OZA, G.L. (J) KHALID, V. (J)

CITATION:  1987 AIR 1652            1987 SCR  (2) 953  1987 SCC  (3) 434        JT 1987 (3)     1  1987 SCALE  (1)844

ACT:     Criminal  Procedure  Code, 1973: s.  41--Arrest  without warrant-When unlawful.     Indian Penal Code, 1860: ss. 97 & 99--Reasonable  appre- hension   of  death  or  grievous  hurt--Right  of   private defence--Whether  available-Rescue  of  persons   unlawfully arrested--Use of force----Whether permissible.

HEADNOTE:     The  respondents, said to be armed with  spears  pharsas and lathis, were alleged to have assaulted the police  party returning  after apprehending a suspect villager,  resulting in  the death of the informer and grievous injuries  to  the constables, and to have secured the release of the  suspect. They were also alleged to have snatched the private gun  and belt  of  cartridges from the constable. The  incident  took place at night. They were convicted by the trial court under s. 302 read with s. 149, and ss. 395 and 147 I.P.C.     The  High Court on appraising the evidence and  the  FIR came  to  the conclusion; (i) that the sole  object  of  the respondents in going to the place of occurrence was only  to rescue the suspect and not to assault or murder anyone; (ii) that the arrest of the suspect by the police was  absolutely unjustified  and not legal since no material had  been  pro- duced  either  to indicate his involvement in  a  cognizable offence or for causing reasonable suspicion, therefore,  the respondents  had  a right to get the  suspect  rescued  from custody;  (iii) that the respondents did not use force  till one of the constables tried three shots, one after  another, which  was sufficient to cause a reasonable apprehension  of either  death or grievous hurt in the minds of the  respond- ents,  therefore  they were acting in the right  of  private defence; (iv) that none of the respondents made any  attempt on  the life of the informer till he himself  intervened  to help  the constable, and held that as such it could  not  be said that they were members of an unlawful assembly or  were committing  rioting when they used force. In  the  premises, the Court recorded acquittal of the respondents. 954     In  the  appeal to this Court it was contended  for  the State:  (1) that even if the arrest of the suspect  was  not

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legal, in view of s. 99 I.P.C. right of private defence  was not available to the respondents under s. 97 I.P.C. and they could have taken recourse to use lawful methods for rescuing the suspect rather than resorting to violence; and (2)  that there  was no cause for reasonable apprehension  of  serious injuries  to  the respondents, for the constable  had  fired shots in the air just to frighten the respondents and  since it  was  moonlit night the respondents could have  seen  the direction in which shots were fired. Dismissing the appeal, the Court,     HELD:  Section 99 of the Indian Penal Code is  only  at- tracted  where there is no reasonable apprehension of  death or  grievous hurt. In the instant case. the respondents  did not use force unless and until one of the constables actual- ly fired shots. Even if it is accepted that it was a moonlit night, it could safely be inferred that the light may not be sufficient  enough so that from a distance  the  respondents could  notice  the direction of the barrel of the  gun  when shots  were  fired.  In such  a  situation,  the  conclusion reached  by the High Court that it was sufficient  to  cause reasonable  apprehension in the minds of the respondents  of death or grievous injury, and, therefore, they were entitled to right of private defence. was justified. [959H; 960E-G]     If the respondents could not be held to be members of an unlawful  assembly as their object at best could only be  to rescue  the suspect from unlawful custody, then even if  the right of private defence is not accepted, it is not possible on  the basis of the prosecution evidence to find  out  what respondent caused what injury and it will not be possible to find them guilty for their individual acts. The same will be the  situation  even if it is held that  they  exceeded  the right of private defence. [960G-H; 961A]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 335 of 1978.     From  the  judgment  and Order dated  13.4.1977  of  the Allahabad High Court in Criminal Appeal No. 1855 of 1975.     Dalveer Bhandari, C.P. Mittal and Pramod Swarup, for the Appellant/Petitioner. R.K. Garg, S.C. Birla, Mukesh K. Giri, S.C. Patel, Syed Ali 955 Ahmad, Syed Tanweer Ahmad, Shaukat Hussain and Ms.  Jayshree Ahmad for the Respondents. The Judgment of the Court was delivered by     OZA,  J.  This appeal has been preferred  by  the  State after obtaining leave from this Court against the  acquittal of  the respondents recorded by the High Court of  Allahabad by  its  judgment dated 13th April 1977  hearing  an  appeal against the conviction of the respondents recorded by  First Additional Sessions Judge, Etah convicting all the  respond- ents  under  Sec. 302 read with 149, Sec. 395  and  147  and sentenced  to life, 10 years and 2 years rigorous  imprison- ment respectively to each one of the respondents.     The prosecution case at the trial was that on 27.10.1974 A.S.I. Om Prakash Sharma accompanied by two constables Gauri Shanker,  P.W.  2 and Kanauji Lal, P.W. 4  went  to  village Nidhauli Khurd, which was at a distance of three-miles  from Kotwali  Etah, and arrested one Laturi there at about  1  or 1.30  P.M. Virendra Nath, deceased, had helped them  in  ar- resting  the said Laturi. The A.S.I. and the two  constables returned  to the Police Station Kotwali Etah with Laturi  in custody  at 6.50 P.M. A few minutes later these  constables,

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Gauri Shanker and Kanauji Lal, were given summons for  serv- ice  on one Girish of Village Nidhauli Khurd. So  constables Gauri  Shanker and Kanauji Lal returned to the Village  Nid- hauli Khurd the same evening at about 7.30 P.M. to serve the summons. It is alleged that at that time the two  constables were wearing police uniforms and Gauri Shanker was  carrying his personal DBBL gun and a belt of cartridges.     While they were in the village, Virendra Nath, deceased, informed  them  that a bad character  named  Dharampuri  was staying  at the house of Bahori Gir, and it is alleged  that the  Station  Officer Kotwali Etah had  earlier  told  these constables  that  Dharampuri was a bad  character  (badmash) belonging  to Agra District and that he had to be  arrested. When  Virendra Nath informed these constables that  ’Dharam- puri was at the house of Bahori Gir, they went to the  house of Bahori Gir and arrested Dharampuri at about 8.30 P.M. and after arresting him the two constables started for Etah with Dharampuri  in  custody and Virendra  Nath,  deceased,  also accompanied them.     At  about  9  P.M. when the  constables  accompanied  by Virendra  Nath, deceased and. Dharampuri in custody  reached near  the  field of one  Matadin  adjoining  Etah-Shikohabad road, the respondents armed 956 with spears, pharsas and lathis reached there with intention to  rescue  Dharampuri from the custody of  the  constables. Seeing this constable Gauri Shanker fired a shot in the  air with his private gun in order to scare away the respondents. When  this  shot was fired the respondents stopped  and  the constables proceeded further. It is alleged that  thereafter the respondents also advanced and then ‘Gauri Shanker  fired a second shot, again the respondents stopped for a while and the  constables proceeded ahead. And after a short time  the respondents  again  advanced towards the  police  party  and asked them to release Dharampuri. It is alleged that at that time  they  threatened  the constables  and  the  constables refused  to release Dharampuri and Gauri Shanker  fired  the third  shot in order to deter the respondents.  Hearing  the noise,  the  witnesses and some other  persons  reached  the place, some of whom were carrying torches and flashing them. It  is  alleged that it was also a moonlit night.  On  this, according to the prosecution, the respondents assaulted  the constables causing injuries to them and they rescued Dharam- puri from the custody of the constables. They. attempted  to snatch the gun of the constable Gauri Shanker and it is then Virendra  Nath intervened. He also told them not  to  snatch the gun and also physically intervened to prevent them  from snatching  the gun and the belt of cartridges from the  con- stable.  In this he fell down and the respondents  succeeded in snatching the gun and the belt of cartridges and in  this scuffle  Virendra Nath was assaulted and he  received  large number of injuries as a result of which he died on the spot. The  respondents, it is alleged, thereafter made good  their escape  and they also took away Dharampuri, the gun of  con- stable Gauri Shanker and the cartridges.      After the respondents went away, the brother of  Viren- dra  Nath  who had also arrived on the scene  got  a  report written out by his younger brother Satish Chandra and lodged the report at the Police Station Kotwali Etah which was at a distance  of  about 3 miles at 10.15 P.M.  the  same  night. Constable  Gauri Shanker was medically examined by Dr.  R.R. Sharma at the district Hospital, Etah on the same night i.e. 27.10.1974  at 11 P.M. the doctor found 12 injuries  on  his person  consisting  of  5 lacerated wounds on  the  head,  5 contusions and two abrasions on different parts of his body.

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Constable Kanauji Lal was medically examined the next  morn- ing i.e. on 28th Oct. 1974 at 10.15 a.m. and he was found to have two bruises and an abrasion.      Dr. R.P. Yadav performed the postmortem examination  on the  body  of Virendra Nath. He found  two  incised  wounds, seven stab wounds, five lacerated wounds and sixteen  contu- sions on various parts 957 of  his  body. All the respondents pleaded not  guilty.  The prosecution examined 12 witnesses in support of the prosecu- tion case, out of whom the informant Rajendra Nath, P.W.  1, Brahma  Singh, P.W. 3 and the two constables  Gauri  Shanker P.W. 2 and Kanauji Lal, P.W. 4 are the eye witnesses.      The learned Judges of the High Court after  considering the evidence of the witnesses especially the  eye-witnesses, the  First Information Report, came to the  conclusion  that the  respondents had collected and gone to  Matadin’s  field with the sole object to rescue Dharampuri and that they  had not gone to that place with the intention of assaulting much less murdering Virendra Nath. It was further found from  the recital in the F.I.R. by the High Court that the respondents in the beginning tried simply to rescue Dharampuri from  the custody and none of them assaulted either the constables  or Virendra  Nath and it was only when Constable Gauri  Shanker fired  2 or 3 shots with his gun that he was  assaulted  and his  gun  and cartridges were snatched. The  learned  Judges also observed "it is obvious that at that time when it  must have  been dark (except for the light of torches which  were being  flashed and which could not have produced any  steady light) the appellants (respondents in this Court) could  not have  seen the direction in which the shots were  fired.  So they may well have thought that they were being fired at and reasonably  apprehended serious injuries to themselves."  On reading of the F.I.R. the learned Judges rightly came to the conclusion  that  the respondents assaulted  the  constables only when one of the constables actually fired. It was  also found  that none of the respondents made any attempt on  the life of Virendra Nath till he himself intervened to help the constables.  In view of these findings reached by  the  High Court, it was found that the object of the respondents  when they came to the field of Matadin was only to rescue Dharam- puri  and it was not their object to assault or murder  any- one. This conclusion was reached by the learned Judges  even after considering in detail the evidence of constables Gauri Shanker  and Kanauji Lal. Consequently the finding  of  fact reached  by the High Court is that the respondents  came  to the  place  of occurrence with the sole object  of  rescuing Dharampuri from the custody of Constables Gauri Shanker  and Kanauji  Lal. So far as these facts are concerned  they  are not  much in dispute. The learned counsel appearing for  the appellant State contended that even if the arrest of Dharam- puri  was  illegal the respondents had no right  of  private defence  under  Sec. 97 to rescue Dharampuri  especially  in view of Sec. 99 of the Indian Penal Code. The  learned Judges of the High Court also came to the  con- clu- 958 sion  that if arrest of Dharampuri was illegal it could  not be  said that the respondents when they collected  with  the object  of  rescuing  him it could be said  that  they  were members  of an unlawful assembly or were committing  rioting when they used force.     The  High  Court considered the provisions  of  Code  of Criminal Procedure in respect of arrest to come to a conclu- sion  as  to whether it could be said that  the  arrest  was

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lawful.  For that purpose the relevant provisions which  has been  considered is Sec. 41 of the Code of  Criminal  Proce- dure, 1973. Learned counsel for the appellant contended that the relevant provision is Sec. 41 clause (a). The constables were  told by the Police Officer and on that basis it  could be  suggested that a reasonable suspicion existed that  Dha- rampuri  was concerned in some cognizable offence or that  a reasonable complaint has been made.     High Court came to the conclusion that the police  offi- cer  who  is said to have told the constables has  not  been examined.  No  material has been produced to  indicate  that there  was any complaint of Dharampuri being involved  in  a cognizable offence nor any other material produced to  indi- cate that there was material for reasonable suspicion.  High Court  on  the basis of the material as it was came  to  the conclusion  that the arrest was absolutely  unjustified  and not  legal and in this view of the matter it was  held  that the  respondents had a right to get Dharampuri rescued  from the  custody.  Learned counsel appearing for  the  appellant State  in view of the material as has appeared  in  evidence contended  that even if it is held that the arrest  was  not legal he emphasised that in view of Sec. 99 I.P.C. right  of private defence was not available to the respondents and  it was contended that the judgment of the High Court could  not be sustained.     The learned Judges of the High Court came to the conclu- sion  that as the arrest was not legal it could not be  held that  the respondents were members of an  unlawful  assembly when the sole object of theirs was to rescue Dharampuri  who was wrongfully arrested by the constables. They also came to the  conclusion that the respondents did not use force  till Constable  Gauri Shankar fired not one but three  shots  one after  another  which  was sufficient in the  light  of  the circumstances  of case for a reasonable apprehension in  the minds  of the respondents that their lives may be in  danger and  it  is  in this view that the High Court  came  to  the conclusion  that  they were acting in the right  of  private defence. Sec. 97 I.P.C. reads thus: 959               "Every  person  has a right,  subject  to  the               restrictions  contained  in  section  99,   to               defend--               First--His own body, and the body of any other               person, against any offence against the  human               body.               Secondly--The  property  whether  movable   or               immovable, of himself or of any other  person,               against.  any act which is an offence  falling               under  the definition of theft, robbery,  mis-               chief  or  criminal trespass, or which  is  an               attempt to commit theft, robbery, mischief  or               criminal trespass." The  first  part  deals with the body  against  any  offence affecting the human body either on the person himself or any other  person and this will include an unlawful arrest  also as an unlawful arrest is a offence against human body.     Sec.  99 on which the emphasis was laid by  the  learned counsel, reads:               "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 strict-               ly justifiable by law.

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                       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 rome to  have  re-               course to the protection of the public author-               ities.                         The  right of private defence in  no               case  extends to the inflicting of  more  harm               than  it is necessary to inflict for the  pur-               pose of defence." In  fact the first sentence of this section itself makes  it clear that this section is only attracted where there is  no reasonable apprehension of 960 death  or  grievous hurt and the emphasis laid by  the  High Court  in its judgment on the fact that the respondents  did not  use  force unless and until the  constable  shot  three rounds which apparently will cause a reasonable apprehension of  death or grievous hurt in the minds of the  respondents. Once the circumstances justified such a reasonable apprehen- sion the contention of the learned counsel for the appellant (State)  that  in such a situation even if  the  arrest  was illegal  the  respondents could have taken recourse  to  use lawful methods for rescuing Dharampuri rather than resorting to  violence. This contention of the learned  counsel  could have  some weight if the incident had not started after  the constable  fired three rounds from his gun.  Realising  this difficulty  an attempt was made by learned counsel  for  the appellant  State  to  contend that this  constable,  as  his evidence discloses, fired shots in air just to frighten  the respondents and the learned Judges of the High Court came to the  conclusion  that it was night and though  torches  were being  flashed  but there will not be consistent  light  and when  the constable fired not one but three shots one  after another  the  respondents naturally will have  a  reasonable apprehension of either death or grievous injury. In order to contend that this finding reached by the High Court on facts is  not  justified, it was contended that it was  a  moonlit night,  there were torches flashed but it is significant  to see  the circumstances which emerged from the evidence  that the  constables were moving with Dharampuri in  custody  and the  deceased  whereas the respondents were moving  at  some distance.  Even  if  it is accepted that it  was  a  moonlit night, it could safely be inferred that the light may not be sufficient  enough so that from a distance  the  respondents could  notice  the direction of the barrel of the  gun  when constable Gauri Shanker fired the shots.     It  also appears from the prosecution evidence that  the torches  were flashed when there was a melee and other  wit- nesses reached hearing the shots and in such a situation the conclusion reached by the High Court that when this  consta- ble fired one after another three shots it was sufficient to cause  reasonable apprehension in the minds of the  respond- ents  of  death or grievous injury and therefore  they  were entitled to right of private defence is justified.      The  learned Judges of the High Court  also  considered the  other  aspects of the matter that  if  the  respondents could  not be held to be members of an unlawful assembly  as their object at best could only be to rescue Dharampuri from

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unlawful custody, then even if the right of private  defence is  not  accepted, it is not possible on the  basis  of  the prosecution evidence to find out what respondent caused what injury 961 and  it will not be possible to find them guilty  for  their individual  acts. The same will be the situation even if  it is held that they exceeded the right of private defence.     Learned counsel for the appellant State took us  through a  discussion of evidence by the Sessions Judge and also  by the High Court and also referred to relevant portions of the evidence  of the prosecution. Having gone through  them,  in our  opinion,  it could not be concluded  that  the  learned Judges of the High Court committed an error in coming to the conclusion that when the respondents used force it was  only after  3 shots were fired and therefore they were acting  in the right of private defence and in this view of the  matter the  conclusions reached by the High Court, in our  opinion, could not be assailed. We therefore see no reason to  enter- tain  this appeal. It is therefore dismissed. The  acquittal recorded of all the respondents by the High Court is  there- fore maintained. SLP (Crl.) No. 362/78 is also dismissed for the reasons state,d above. P.S.S.                                         Appeal   dis- missed. 962