1996 JTR(SC) 897
1996 2 AICLR 413 ; 1996 AIR(SC) 1998 ; 1996 AIR(SCW) 2389 ; 1996 2 ALD(Cri)(SC) 10 ; 1996 33 AllCriC 673 ; 1996 2 BLJR 934 ; 1996 2 CCR(SC) 192 ; 1996 CriLR 773 ; 1996 2 Crimes(SC) 136 ; 1997 CriR(SC) 127 ; 1996 CrLJ 2860 ; 1996 2 EastCrC(SC) 263 ; 1996 6 JT 120 ; 1997 MLJ(Cri) 326 ; 1996 2 OLR 165 ; 1996 2 PLJR(SC) 15 ; 1996 3 RCR(Cri) 267 ; 1996 4 Scale 102 ; 1996 5 SCC 107 ; 1991 SCC(Cri) 580 ; 1996 SCC(Cri) 883 ; 1996 2 SCJ 479 ; 1991 2 SCR 191 ; 1996 Supp2 SCR 165 ; 1996 KHC 883 ; 1996 1 KLT(Online) 1008 ; 1996 4 Supreme 61
1996(4) Supreme 61
SUPREME COURT OF INDIA
Madan Mohan Punchhi and K.T. Thomas, JJ.
Mahabir Choudhary -Appellant
versus
State of Bihar -Respondent
Criminal Appeal No. 228 of 1987
with
(Criminal Appeal Nos. 329/87, 330/87, 331/87, 470/86, 471/86 & 472/86)
Decided on 1-5-1996
IMPORTANT POINT
Where act of deceased amounted to mischief, appellants had a right to private defence but in gunning down the mischief makers they acted in excess of right of private defence nevertheless first degree of right of private defence could not be denied to them hence their conviction under Section 304, Part I, IPC was sustainable.
Act Referred :INDIAN PENAL CODE : S.149, S.99, S.304, S.97, S.104, S.103
A) The relevant statutory framework under the Indian Penal Code operates as follows: Section 97 confers a comprehensive right to private defence enabling a person to protect both their own and anothers body and property against any offensive act, including attempts to commit mischief or criminal trespass, without being compelled to retreat. Section 103 limits this defence where the wrong is mischief, theft, or criminal trespass, by requiring a reasonable apprehension of death or grievous hurt; however, Section 104 qualifies this by allowing a first degree of defence that stops short of causing death, while Section 103 itself permits the full measure of defence if the circumstances create such reasonable apprehension. Sections 99 and 304 delineate the boundaries and consequences of excessive force, with Section 304 addressing culpable homicide not amounting to murder. In this case, the applicability of these sections determines whether the accused persons were entitled to defend property and whether their use of firearms exceeded permissible limits under the law. Section 149 addresses liability in cases where the unlawful assembly shares a common object, and Section 302 defines the offence of murder.
B) Key legal principles include that private defence against mischief does not require retreat under Indian law, but the right must be proportionate to the threat. The right can extend to causing death only where there is reasonable apprehension of death or grievous hurt. Unlawful assembly under a common object can negate individual claims of self-defence.
Facts of the case:
During a drought, members of Malpura village cut open a bund to secure water, which was challenged by appellants from Kusi Village. Following an exchange of words and threats, four appellants used firearms to shoot three individuals from Malpura, resulting in their deaths. The trial court convicted only four appellants under Section 304 read with Section 149, finding excessive force but acknowledging a right of private defence. The High Court reversed this by holding all thirteen appellants guilty under Section 302 read with Section 149, denying any right of private defence. The present appeals challenge this reversal.
Findings of Court:
The Supreme Court confirmed that four appellants used firearms and caused the deaths, but held that the High Court erred in denying any right of private defence at any stage. It clarified that while the appellants acted far in excess of the first degree of private defence, they were nevertheless entitled to that initial measure to protect property. The court restored the trial courts approach and allowed the appeals, upholding the original convictions under Section 304 read with Section 149.
Issues:
Whether the appellants had any right of private defence against a mischief involving cutting a bund, and whether that right was properly limited to the first degree of defence without escalating to fatal force.
Ratio Decidendi:
The right of private defence against mischief does not require retreat, but the use of firearms must be proportionate; the first degree of defence is available even when death or grievous hurt is not reasonably apprehended, and denial of this initial right is erroneous. Excessive force does not extinguish the underlying right.
Result:
Appeals allowed; the High Courts judgment setting aside the trial courts order is set aside, and the original conviction and sentence under Section 304 read with Section 149 are reinstated.
A) The relevant statutory framework under the Indian Penal Code operates as follows: Section 97 confers a comprehensive right to private defence enabling a person to protect both their own and anothers body and property against any offensive act, including attempts to commit mischief or criminal trespass, without being compelled to retreat. Section 103 limits this defence where the wrong is mischief, theft, or criminal trespass, by requiring a reasonable apprehension of death or grievous hurt; however, Section 104 qualifies this by allowing a first degree of defence that stops short of causing death, while Section 103 itself permits the full measure of defence if the circumstances create such reasonable apprehension. Sections 99 and 304 delineate the boundaries and consequences of excessive force, with Section 304 addressing culpable homicide not amounting to murder. In this case, the applicability of these sections determines whether the accused persons were entitled to defend property and whether their use of firearms exceeded permissible limits under the law. Section 149 addresses liability in cases where the unlawful assembly shares a common object, and Section 302 defines the offence of murder.
B) Key legal principles include that private defence against mischief does not require retreat under Indian law, but the right must be proportionate to the threat. The right can extend to causing death only where there is reasonable apprehension of death or grievous hurt. Unlawful assembly under a common object can negate individual claims of self-defence.
Facts of the case:
During a drought, members of Malpura village cut open a bund to secure water, which was challenged by appellants from Kusi Village. Following an exchange of words and threats, four appellants used firearms to shoot three individuals from Malpura, resulting in their deaths. The trial court convicted only four appellants under Section 304 read with Section 149, finding excessive force but acknowledging a right of private defence. The High Court reversed this by holding all thirteen appellants guilty under Section 302 read with Section 149, denying any right of private defence. The present appeals challenge this reversal.
Findings of Court:
The Supreme Court confirmed that four appellants used firearms and caused the deaths, but held that the High Court erred in denying any right of private defence at any stage. It clarified that while the appellants acted far in excess of the first degree of private defence, they were nevertheless entitled to that initial measure to protect property. The court restored the trial courts approach and allowed the appeals, upholding the original convictions under Section 304 read with Section 149.
Issues:
Whether the appellants had any right of private defence against a mischief involving cutting a bund, and whether that right was properly limited to the first degree of defence without escalating to fatal force.
Ratio Decidendi:
The right of private defence against mischief does not require retreat, but the use of firearms must be proportionate; the first degree of defence is available even when death or grievous hurt is not reasonably apprehended, and denial of this initial right is erroneous. Excessive force does not extinguish the underlying right.
Result:
Appeals allowed; the High Courts judgment setting aside the trial courts order is set aside, and the original conviction and sentence under Section 304 read with Section 149 are reinstated.
JUDGMENT
Thomas, J.-Thirteen persons were arraigned in the trial court to face charges for offences including Section 302 read with Section 149 of IPC, out of which Sessions Court convicted only four of the offences under Section 304, Part I of IPC and Section 25(1) of the Indian Arms Act. Others were acquitted. The convicted persons were sentenced to rigorous imprisonment for 5 years each on the first count and rigorous imprisonment for 6 months each on the second count. They filed appeal before the Patna High Court. The State of Bihar filed another appeal challenging acquittal of 9 accused as well as the order exonerating the convicted persons of the offence under Section 302 IPC. At the appellate stage there was reversal of fortune for all the arraigned persons as the High Court found all of them guilty under Section 302 read with Section 149 IPC. Hence the present appeals by the accused persons by special leave.
2. We are informed that during the pendency of these appeals two of the appellants (Sheonandan Choudhary and Ram Ishwar Choudhary) have expired. It is also reported that appellant Ganesh Choudhary has become insane and has gone out of his house and his whereabouts are not known.
3. The incident which led to the prosecution of all the 13 appellants happened during the morning hours on 15.10.1974, in which three persons (1. Daroga, 2. Kawal and 3. Hit Narain) died. All the deceased hailed from a village called Malpura which is situate a little north of Kusi Village. A water stream starting from another village (Parsar Ahar - situated south of Kusi Village) flowed northwards reaching upto Kusi. Appellants are inhabitants of Kusi Village. As there was acute drought condition, people of Malpura were in need of water.
4. Prosecution case, in short, is thus : The three deceased visited Kusi Village on the eye of the occurrence and cut open a bund which blocked the water flowing further north. This act of the deceased was questioned by some of the appellants, but their protestations were not heeded to by the deceased. On the morning of 15.10.1974, situation further deteriorated with exchange of words between the two factions when those hailing from Malpura forcefully resisted the attempt of the appellants to restore the bund. All the appellants gathered up with guns, lathis, etc. The four appellants who were convicted by the trial court used guns to fire down one or the other of the three deceased and consequently the deceased died of gun shot injuries. The remaining persons who came from Malpura Village retreated and fled from the scene.
5. Learned Sessions Judge found that the prosecution succeeded in establishing that the four convicted persons fired gun at the deceased. However, learned Sessions Judge took the view that appellants had right of private defence of property as deceased committed mischief by cutting open the bund to block the waterflow. But the trial court further found that the four convicted persons who used firearms had exceeded their right of private defence and hence they were convicted only of the offence under Section 304 Part I of IPC.
6. The High Court, in reversal of the above findings, concluded that all the 13 accused had formed themselves into an unlawful assembly with the common object of murdering the three deceased and that none had the right of private defence at the relevant time.
7. We have no reason to disturb the finding that four appellants had used guns and shot down the three deceased. So the only question for our consideration is whether the High Court was justified in denying initial right of private defence to these appellants.
Learned Judges of the High Court have observed :
"Even if mischief had been committed by Malpura people the same was continuing for three days preceding the occurrence, and hence there was no occasion for them to take law into their own hands for attacking Malpura people."
High Court further pointed out from evidence that a cut portion of the bund was filled up by Kusi people and there was some altercation and exchange of abusive words, and when Malpura people came shouting, some of them carrying lathis, the four accused took out their guns which they had concealed in the paddy field and started firing indiscriminately. The High Court then proceeded to observe thus :
"In such a situation it is difficult to accept that the accused persons were protected by the right of private defence of person and property. So far as property is concerned mischief was caused to the property but it was not caused under such circumstances as may reasonably cause apprehension in the minds of the accused persons that death or grievous hurt will be the consequence if such right of private defence was not exercised."
The High Court further observed that simply because some persons came shouting from Village Malpura was not enough to give rise to a reasonable apprehension that grievous hurt would be inflicted to the accused.
8. Section 97 IPC recognises right of a person not only to defend his own or another s body but to defend his own or another s property even against an attempt to inflict any offensive act as against the property. It is now well-settled that the rule of retreat which Common Law Courts espoused is not relevant under the Indian Penal Code. If a man s property is in imminent danger of being impaired or attacked he has the right to resort to such measures as would be reasonably necessary to thwart the attempt to protect his property. In Jai Dev v. State of Punjab1, this Court has observed that in India there is no rule which expects a man to run away when confronted with a situation where he can exercise his right of private defence.
9. No doubt Section 103 IPC, which deals with right of private defence as against an act which might be mischief or theft or criminal trespass, conditions that there should be reasonable apprehension that death or grievous hurt would otherwise be the consequence. But that provision deals with the farthest extent of the right of private defence as against the above three categories of wrongs against the property. But a man pitted against such wrongs or even against attempts thereof need not wait for exercising right of private defence untill the apprehension of death of grievous hurt is burgeoned in his mind. Penal Code envisages two measures of right of private defence. One is the first degree which shall not reach upto causing of death of the wrong doer. The other is the full measure which may go upto causing death. Both measures are, however, subjected to the restrictions enumerated in Section 99. Section 104 IPC contains the bridle that right of private defence shall not cross the limit of first degree as against acts which would remain as theft, mischief or criminal trespass. But Section 103 recognises extension of the said right upto the full measure, even as against the aforesaid acts but only if such acts or their attempts are capable of inculcating reasonable apprehension in the mind that death or grievous hurt would be the consequence if the right is not exercised in such full measure.
10. The emerging position is, you have the first degree of right of private defence even if the wrong committed or attempted to be committed against you is theft or mischief or criminal trespass simplicitor. This right of private defence cannot be used to kill the wrong doer unless you have reasonable cause to fear that otherwise death or grievous hurt might ensue in which case you have the full measure of right of private defence.
11. When the acts of Malpura people amounted to mischief, appellants had a right of private defence to thwart the same. In the course of exercise of such right appellants who gunned down the mischief-makers have obviously acted far in excess of the right of private defence. Nonetheless the first degree of right of private defence cannot be denied to them.
12. We are, therefore, of the view that the High Court was in error in holding that appellants had no right of private defence at any stage. Trial Court was correct in its approach regarding that aspect of the matter. We, therefore, allow these appeals and set aside the Judgment of the High Court. The conviction and sentence passed by the Sessions Court will stand.
Appeal allowed accordingly.
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