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PETITIONER: VISHWANATH

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 03/09/1959

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. IMAM, SYED JAFFER

CITATION:  1960 AIR   67            1960 SCR  (1) 646

ACT:        Criminal  Trial-Right  of Private  defence-When  extends  to        causing death-Whether mere abduction which is not Punishable        gives right of private defence to cause death of  abductor--        Husband trying to take away wife forcibly from her  father’s        house-Wife’s  brother  stabbing husband and  killing  him-If        protected  by  right of private defence-Indian  Penal  Code,        1860 (XLV of 1860), ss. 97, 99 and 100.

HEADNOTE: The  relations between one G and his wife were strained  and she  went to live with her father B and her brother  V,  the appellant.   G, with three others, went to the quarter of  B and he went inside and came out dragging his reluctant  wife behind  him.   She  caught hold of the door  and  G  started pulling  her.  At this the appellant shouted to  his  father that G was adamant and thereupon B replied that he should be beaten.  The appellant took out a knife from his pocket  and stabbed G once.  The knife penetrated the heart of G and  he died.  B and the appellant were 647 tried for the murder of G; B was acquitted and the appellant was  convicted  under S. 304 Part II Indian Penal  Code  and sentenced   to  three  years  rigorous  imprisonment.    The appellant  contended  that  he had acted  in  the  right  of private defence of person under s. 100 fifthly Indian  Penal Code,  which  extended  to the causing of  death  as  G  had assaulted his wife with the intention of abducting her.  The respondent  urged that s. 100 fifthly applied only when  the abduction  was of such a nature as was punishable under  the Penal Code. Held, that the appellant had the right of private defence of the  body  of his sister which extended to  the  causing  of death of G. The extended right under s. 100 arose when there was the offence of assault of one of the types mentioned  in the six clauses of that section.  It was not necessary  that the  intention  with which the assault  was  committed  must always bean offence itself.  The word " abduction " used. in the fifth clause of s. 100 meant nothing more than what  was defined  as  "  abduction  "  in s.  362,  and  it  was  not necessary,  to get the protection of this clause,  that  the abduction must be of a type punishable under the Penal Code.

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Further, the appellant had not inflicted more harm than  was necessary and was not guilty of any offence. Emperor v. Ram Saiya, I.L.R. 1948 All. i65, overruled. jagat  Singh v. King-Emperor, A.I.R. 1923 Lah.  155,  Daroga Lohar v. Emperor, A.I.R. 1930 Pat. 347, Sakha v. The  State, I.L.R 195o Nag. 508 and Dayaram Laxman v. State, A.I.R  I953 Madhya Bharat 52, referred to.

JUDGMENT:        CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No. 32  of        1958.        Appeal  by special leave from the judgment and  order  dated        April  25,  1957, of the Allahabad High  Court  in  Criminal        Appeal  No.  992 of 1954, arising out of  the  judgment  and        order  dated  January 25, 1954, of the  Additional  Sessions        Judge, Gorakhpur in Sessions Trial No. 71 of 1953.        S.   P. Sinha and S. D. Sekhri, for the appellant.        G.   C.  Mathur and C. P. Lal (for G. N. Dikshit),  for  the        respondent.        1959.  September 3. The Judgment of the Court was  delivered        by        WANCHOO  J.-This is an appeal by special leave  against  the        judgment  of the Allahabad High Court in a criminal  matter.        The  facts of the case, as found by the High Court,  are  no        longer in dispute and the        648        question  that  is  raised in this  appeal  is  whether  the        appellant  had  exceeded  the right of  private  defence  of        person.   The  relevant facts for our  purposes  are  these.        Gopal  deceased was married to the sister of the  appellant.        The appellant and his father Badri were living in a  railway        quarter  at  Gorakhpur.  Gopal’s sister was married  to  one        Banarsi,  who  was also living in  another  railway  quarter        nearby.   Gopal  had  been living for  some  time  with  his        father-in-law.  They did not, however, pull on well together        and Gopal shifted to the house of Banarsi.  Badri  persuaded        Gopal  to come back to his house but the relations  remained        strained  and eventually Gopal shifted again to the  quarter        of Banarsi about 15 days before the present occurrence which        took  place on June 11, 1953, at about 10 p.m. Gopal’s  wife        had  continued to live with her father as she was  unwilling        to  go  with  Gopal.   Her  father  Badri  and  her  brother        Vishwanath  appellant sided with her and refused to let  her        go  with  Gopal.   Gopal also suspected that  she  had  been        carrying on with one Moti who used to visit Badri’s quarter.        Consequently, Gopal was keen to take away his wife, the more        so  as he had got a job in the local department some  months        before and wanted to lead an independent life.  On June  11,        there was some quarrel between the appellant and Gopal about        the  girl;  but  nothing  untoward  happened  then  and  the        appellant  went back to his quarter and Gopal went  away  to        Bansari’s  quarter.  Gopal asked Banarsi’s sons to help  him        in  bringing back his wife.  Banarsi also arrived  and  then        all  four of them went to Badri’s quarter to bring back  the        girl.  On reaching the place, Banarsi and his two sons stood        outside  while Gopal went in.  In the meantime,  Badri  came        out  and  was asked by Banarsi to let the girl go  with  her        husband.   Badri was not agreeable to it and  asked  Banarsi        not to interfere in other people’s affairs.  While Badri and        Banarsi were talking, Gopal came out of the quarter dragging        his reluctant wife behind him.  The girl caught hold of  the        door  as she was being taken out and a  tug-of-war  followed        between  her  and Gopal. -The appellant was also  there  and

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      shouted to his father        649        that  Gopal was adamant.  Badri, thereupon replied  that  if        Gopal was adamant he should be beaten (tomaro).  On this the        appellant took out a knife from his pocket and stabbed Gopal        once.   The knife penetrated into the heart and  Gopal  fell        down  senseless.   Steps  were taken  to  revive  Gopal  but        without success.  Thereupon, Gopal was taken to the hospital        by Badri and the appellant and Banarsi and his sons and some        others,  but  Gopal  died  by  the  time  they  reached  the        hospital.        On these facts the Sessions Judge was of opinion that  Badri        who  had merely asked the appellant to beat Gopal could  not        have realised that the appellant would take out a knife from        his pocket and stab Gopal.  Badri was, therefore,  acquitted        of abetment.  The Sessions Judge was further of opinion that        the  appellant had the right of private defence  of  person,        and that this right extended even to the causing of death as        it  arose on account of an assault on his sister  which  was        with  intent to abduct her.  He was further of opinion  that        more  harm than the circumstances of the case  required  was        not caused; and therefore the appellant was also acquitted.        The  State  then  appealed to the  High  Court  against  the        acquittal  of  both  accused.  The  High  Court  upheld  the        acquittal  of Badri.  The acquittal of - the  appellant  was        set aside on the ground that the case was not covered by the        fifth clause of s. 100 and the right of -private defence  of        person in this case did not extend to the voluntary  causing        of  death  to the assailant and therefore it  was  exceeded.        The  High Court relied on an earlier decision of its own  in        Emperor  v.  Ram  Saiya (1).  The  appellant  was  therefore        convicted  under  s.  304, Part 11, of the  Penal  code  and        sentenced to three years’ rigorous imprisonment.  He applied        for a certificate to enable him to appeal to this Court  but        this  was refused.  Thereupon he applied to this  Court  for        special leave which was granted; and that is how the  matter        has come up before us.        The main question therefore that falls for consideration  in        this appeal is whether the decision in Ram        (1)  I.L.R. 1948 All. 165.        650        Saiya’s  case  (1) is correct.  It appears that  four  other        high  Courts  have taken a view which is different  on  that        taken  in Ram Saiya’s case (1-), namely Jagat singh v.  King        Emperor  (2) Daroga Lokar v. Emperor Lohar v. The State  (4)        and Dayaram Laxman v. State ’here is, however, no discussion        of  the  point in these our cases and we need not  refer  to        them further. the view taken in Ram Saiya’s case (1) is that        the lord " abducting " used in the fifth clause of s. 100 of        the  Penal  Code refers to such abducting as is  an  offence        under  that Code and not merely to the act of  abduction  as        defined in s. 362 thereof.  Mere abduction is not an offence        and,  therefore,  cannot give rise of any right  of  private        defence  and the extended right of private defence given  by        s.  100  only  arises if the  offence  which  occasions  the        exercise of the right is of the Of the kinds mentioned in s.        100.        Section  97  gives the right of private  defence  of  person        against  any offence affecting the human body.   Section  99        lays  down  that  the right of private  defence  a  no  case        extends to the inflicting of more harm than it is  necessary        to  inflict  for the purpose of defence.  Section  100  with        which we are concerned is in these terms:-        "  The right of private defence of the body  extends,  under        the restrictions mentioned in the last preceding section, to

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      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-Such  an  assault  as  may  reasonably  cause   the        apprehension that death will otherwise be the consequence of        such assault;        Secondly-Such  an  assault  as  may  reasonably  cause   the        apprehension  that  grievous  hurt  will  otherwise  be  the        consequence of such assault;        Thirdly-An assault with the intention of committing rape ;        (1) I.L.R. 1948 All. 165.   (3) A.I. R. 1930 Pat. 347 (2).        (2) A.I.R. 1923 Lab.  155 (1).  (4) 1 L.R. 1950 Nag 508.        (5)  A 1. R. 1953 Madhya Bharat 182.        651        Fourthly-An   assault  with  the  intention  of   gratifying        unnatural lust;        Fifthly-An  assault  with the intention  of  kidnapping  or.        abducting;        Sixthly-An   assault  with  the  intention   of   wrongfully        confining a person under circumstances which may  reasonably        cause  him  to  apprehend that he will  be  unable  to  have        recourse to the public authorities for his release."        The right of private defence of person only arises if  there        is an offence affecting the human body.  Offences  affecting        the human body are to be found in Ch.  XVI from s. 299 to s.        377 of the Penal Code and include offences in the nature  of        use of criminal force and assault.  Abduction is also in Ch.        XVI  and  is  defined  in s.  362.   Abduction  takes  place        whenever a person by force compels or by any deceitful means        induces another person to go from any place.  But  abduction        pure  and  simple is not an offence under  the  Penal  Code.        Only  abduction  with  certain intent is  punishable  as  an        offence.   If the intention is that the person abducted  may        be  murdered  or so disposed of as to be put  in  danger  of        being  murdered,  s. 364 applies.  If the  intention  is  to        cause  secret and wrongful confinement, s. 365 applies.   If        the abducted person is a woman and the intention is that she        may  be compelled or is likely to be compelled to marry  any        person  against  her  will or may be forced  or  seduced  to        illicit intercourse or is likely to be so forced or seduced,        s. 366 applies.  If the intention is to cause grievous  hurt        or so dispose of the person abducted as to put him in danger        of  being  subjected  to grievous hurt, or  slavery  or  the        unnatural  lust  of  any person, s.  367  applies.   If  the        abducted  person  is a child under the age of  ten  and  the        intention  is to take dishonestly any movable property  from        its  person,  s.  369 applies.  It is said  that  unless  an        offence  under  one  of  these  sections  is  likely  to  be        committed,   the  fifth  clause  of  s.  100  can  have   no        application.   On a plain reading, however, of  that  clause        there  does not seem to be any reason for holding  that  the        word " abducting " used there means anything more than  what        is defined as " abduction " in s. 362.        652        It  is  true  that the right of private  defence  of  person        arises  only  if  an  -offence against  the  human  body  is        committed.   Section 100 gives an extended right of  private        defence  of  person  in  cases  where.  the  offence   which        occasions  the  exercise  of  the right is  of  any  of  the        descriptions enumerated therein.  Each of the six clauses of        s. 100 talks of an assault and assault is an offence against        the human body; (see s. 352).  So before the extended  right        under  s. 100 arises there has to be the offence of  assault        and this assault has to be of one of the six types mentioned

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      in the six clauses of the section.  The view in Ram  Saiya’s        case  (1) seems to overlook that in each of the six  clauses        enumerated in s. 100, there is an offence against the  human        body,  namely,  assault.  So the right  of  private  defence        arises  against that offence, and what s. 100 lays  down  is        that if the assault is of an aggravated nature, as enumerat-        ed  in  that section, the right of private  defence  extends        even to the causing of death.  The fact that when describing        the nature of the assault some of the clauses in s. 100  use        words  which  are  themselves offences, as  for  example,  "        grievous  hurt  ", " rape ", " kidnapping  ",  "  wrongfully        confining ", does not mean that the intention with which the        assault  is committed must always be an offence  in  itself.        In  some  other  clauses, the words  used  to  indicate  the        intention  do not themselves amount to an offence under  the        Penal  Code.   For example, the first clause says  that  the        assault   must   be  such  as  may  reasonably   cause   the        apprehension of death.  Now death is not an offence anywhere        in  the Penal Code.  Therefore, when the word " abducting  "        is used in the fifth clause, that word by itself reed not be        an offence in order that clause may be taken advantage of by        or  on  behalf of a person who is assaulted with  intent  to        abduct.   All that the clause requires is that there  should        be an assault which is an offence against the human body and        that assault should be with the intention of abducting,  and        whenever  these  elements  are present the  clause  will  be        applicable.        Further  the  definition of " abduction " is in  two  parts,        namely, (i) abduction where a person is compelled,        (1)  I.L.R. 1948 All. 165.        653        by  force  to go from any place and (ii) abduction  where  a        person  is  induced by any deceitful means to  go  from  any        place.   Now  the fifth clause of s. 100  contemplates  only        that kind of abduction in which force is used and where  the        assault  is  with the intention of abducting, the  right  of        private  defence  that  arises by  reason  of  such  assault        extends  even up to the causing of death.  It would  in  our        opinion  be not right to expect from a person who  is  being        abducted by force to pause and consider whether the abductor        has further intention as provided in one of the sections  of        the Penal Code quoted above, before he takes steps to defend        himself,  even to the extent of causing death of the  person        abducting.   The framers of the Code knew that abduction  by        itself  was  not an offence unless there  was  some  further        intention  coupled with it.  Even so in the fifth clause  of        s.  100  the word " abducting " has been  used  without  any        further qualification to the effect that the abducting  must        be  of  the  kind  mentioned in  s.  364  onwards.   We  are        therefore of opinion that the view taken in Ram Saiya’s case        (1)  is not correct and the fifth clause must be given  full        effect according to its plain meaning.  Therefore, when  the        appellant’s  sister was being abducted, even though  by  her        husband,  and there was an assault on her and she was  being        compelled  by force to go away from her father’s place,  the        appellant  would  have the right of private defence  of  the        body of his sister against an assault with the intention  of        abducting  her by force and that right would extend  to  the        causing of death.        The  next question is whether the appellant was  within  the        restrictions  prescribed  by s. 99.  It was urged  that  the        right of private defence never extends to the inflicting  of        more  harm  than  what  is  necessary  for  the  purpose  of        defending and that in this case the appellant inflicted more        harm than was necessary.  We are of opinion that this is not

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      so.  The appellant gave only one blow with a knife which  he        happened to have in his pocket.  It is unfortunate that  the        blow  landed right into the heart and therefore Gopal  died.        But considering that the appellant had given        (1)  I.L.R. 1948 All. 165.        83        654        only one below with an ordinary knife which, if it had  been        a  little  this way or that, could not have been  fatal,  it        cannot  be  said  that  he  inflicted  more  harm  than  was        necessary  for the purpose of defence.  As has been  pointed        out in Amjad Khan v. The State (1), " these things cannot be        weighed in too fine a set of scales or in golden scale"’.        We, therefore, allow the appeal and hold that the  appellant        had  the right of private defence of person under the  fifth        clause  of  s.  100 and did not cause  more  harm  than  was        necessary and acquit him.                                         Appeal allowed.