IN THE SUPREME COURT OF INDIA
1996 SCC (1) 458, JT 1995 (8) 434
The State of Punjab
Date of Judgement
28, November 1995
Hon’ble Justice Majmudar S.B, J.; Mukherjee M.K., J.
The landmark case dwells on the preventive right of private self-defense and to what extent it can be exercised in particular circumstances. The reasonable apprehension in every situation is to be judged on the basis of the imminence of threat and the nature of the injury that is likely to be caused. The protection under this right is also granted to the extent of causing death given the compliance under Section 100 of the Indian Penal Code (IPC), 1860.
Facts of the case
The appellant along with two other accused was charged under Sections 302, 307, 325, 324, 323 read with Section 34 of the IPC, in furtherance of their common intention to murder Mst. Bholan. The appellant committed the murder intentionally causing the death. Accused Piara Singh was also charged under Section 307 of the IPC for firing a gunshot at another person, Hazara Singh with such intention and under such circumstances that if death had been caused by such an act, he would have been guilty of murder. The other two accused are charged with Section 307 read with Section 34 of the IPC. Accused Charan Singh has been alleged to have voluntarily caused hurt to Hazara Singh by means of a `gandasa’, which is an instrument of cutting, and is thereby punishable under Section 324 of IPC whereas the other two accused were alleged to have committed offenses punishable under Section 324 read with S. 34 of the IPC. They are also charged for causing hurt to one Bachan Singh. Appellant was also charged along with other co-accused for committing an offense under Section 325 read with Section 34 of the IPC for having voluntarily caused grievous hurt to one Jagir Singh. Appellant was lastly charged with an offense under Section 27 of the Arms Act on the allegation that he possessed a single-barreled 12 bore gun with the intent to use the same for an unlawful purpose, that is, to commit the murder of Mst. Bholan and that he actually used it for the above-said purpose thereby being guilty under Section 325 of the IPC.
The prosecution gave a brief of the facts. That Bachan Singh was to celebrate Lohri festival in connection with the birth of his grandchild. Jagir Singh was invited to the celebration and attended the same on 11th January 1981. At the time of leaving, the three accused came in front of Hazara Singh’s house with their weapons with the intent to teach him and others a lesson for parking the tractor trolley in the lane. All the three accused hurt Mst. Bholan, Hazara Singh, Bachan Singh and Jagir Singh. On calling for help, the accused decamped with their weapons and ran away. Mst. Bholan was shot in the pelvic region and died on the way to the hospital.
On receipt of the telephonic message, The Inspector of Police Station Mallanwala went to the hospital to record the statement of Hazara Singh, which formed the basis of the First Information Report. The investigation was held and the dead body was sent for autopsy. The accused were arrested on 17th January 1981 and their weapons were taken into possession.
After investigation, a charge-sheet was prepared of the accused and their case was tried in the Sessions Court. The trial court held the appellant guilty under Section 302 of IPC, while Piara Singh and Charan Singh accused were sentenced under Section 302 read with Section 34 of IPC. Piara Singh accused was sentenced under Section 307 IPC and accused Charan Singh was sentenced under Section 307 read with Section 34 IPC. Appellant was also sentenced under Sections 324 and 325 read with Section 34 for the injuries caused to the concerned Prosecution Witnesses. All were sentenced and fined accordingly.
Being aggrieved of the decision, a criminal appeal was moved by the accused in the High Court of Punjab & Haryana at Chandigarh and the Court ordered the acquittal of the accused however the appellant was held guilty of an offense under Section 304 Part I, IPC and was sentenced accordingly. His conviction and sentence under Section 27 of the Arms Act were maintained.
Aggrieved by the order, the appellant moved the present appeal.
Statute and Provisions Discussed:
Sections 34, 302, 304, 307, 324 and 325 of the Indian Penal Code, 1860. Section 27 of the Arms Act.
- Whether the appellant is guilty of an offense under Section 304 of the IPC for exceeding his right of private defense of body?
- Whether he is guilty under Section 27 of the Arms Act for purporting the use of his gun for an unlawful purpose, i.e., committing the murder of Bholan?
From the Appellant
It was contended by the appellant that when the High Court concluded that the appellant had a right of private defense of body having received a number of injuries in the incident, it wrongly assumed that the appellant had exceeded this right as his reasonable apprehension could have been of receiving simple hurt at the hands of the complainant party and his right was only limited to causing grievous hurt and not any fatal injury by the use of his firearm making the finding of the High Court unsustainable.
The State of Punjab supported the decision of the High Court.
The Court allowed the appeal and the bail bond of the appellant stands discharged. The conviction of the appellant under Section 304 part I, IPC as ordered by the High Court is quashed and set aside. The appellant is already acquitted of charges under Sections 307, 324 and 325 of the IPC by the order of the High Court.
The Court held that the decision of the High Court to the effect that the appellant had exceeded the right of private defense cannot be supported on the evidence on record. The appellant had a right of private defense of body which extended to even causing death and in the exercise of that right, the, unfortunately, killing of an innocent person by one fire shot cannot make him guilty of an offense under Section 304 Part I of the IPC. The conviction under Section 27 of the Arms Act does not sustain as the use of the gun was not for any unlawful purpose.
After conducting the medico-legal examination of the appellant it became clear that he had received as many as nine injuries out of which first two injuries were on his head. In response to such injuries, firing one shot from his gun in his self-defense, could not be said to have been in excess of his right of private defense as the nature of assault by the complainant party could have caused reasonable apprehension of receiving a grievous hurt. Section 100 clause ‘secondly’ of the IPC is attracted in the present case which allows Voluntary causing of death or any other harm to the assailant in light of private self-defense if there is reasonable apprehension that grievous hurt will otherwise be the consequence of such assault. As the appellant was injured with a sharp cutting instrument on his head, he could have apprehended grievous hurt and hence exercised his right of self-defense to the extent to even causing death. Simply because of the fatal injury inflicted on an innocent person, the right of self-defense cannot be abridged as the intention was not to hurt the innocent person and he is protected under the ambit of Section 100 of the IPC.
Section 301 can only be attracted in such a situation if the act is culpable in nature. Herein, as the act is not culpable at all and then even if it results in the homicide of an innocent person, Section 301 will not be operational.
In such situations where nature of apprehension cannot be ascertained, it has to be judged “in light of what happens on the spur of the moment on spot and keeping in view the normal course of human conduct as to how a person would react under such circumstances in a sudden manner with an instinct of self-preservation. Such a situation has to be judged from the subjective point of view of the accused concerned who is confronted with such a situation on spot and cannot be subjected to any microscopic and pedantic scrutiny”
It has been iterated by the Court that the burden of proof lies on the prosecution to prove the offense beyond reasonable doubt and if a person is faced with imminent peril, in the heat of the moment if he carries his defense a little further than the necessary extent when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it.
The facts of the present case are very similar to that in Deo Narain v. The State of U.P. where the court referred Section 102, IPC, according to which the right of private defense of the body commences as soon as the person reasonably apprehends danger to the body from an attempt or threat to commit the offense, though the offense may not have been actually committed, and such right continues till such apprehension of danger subsists. The threat must reasonably give rise to the present and imminent, and not remote or distant danger.
The right of self-defense is based on protection against apprehended unlawful aggression and cannot be put on hold until an injury is sustained to punish the aggressor. It is a preventive and not punitive right.
- The right of private self-defense depends on the principle that where a crime is endeavored to be committed by force, it is lawful to repel that force in self- defense.
- If a proper ascertainment cannot be made as to the nature of assault or threat of assault, the human conduct in the spur of the moment is to be judged in light of self-preservation.
- Intention to harm is necessary to establish a crime and injury to an innocent person without such intention to cause the injury cannot make the assaulter guilty of an offense.
- The right to self-defense is a preventive right.
Edited by Parul Soni
Approved & Published – Sakshi Raje