Judgment

Bose, J. - The main question in this case is whether there is a right of private defence. Most of the facts are not in dispute.

2. A communal riot broke out at Katni on 5-3-1950 between some Sindhi refugees resident in the town and the local Muslims. The trouble started in the locality known as Zanda Bazar or Zanda Chowk. Police Constable Bharat Singh, P. W. 17, who made the First Information Report, said that most of the shopkeepers in Zanda Bazar are Sindhis. He stated that when he was told that trouble had broken out there he proceeded to the spot and found that the goods in the Muslim shops in that locality were scattered. It is also in evidence that some Muslims lost their lives.

3. From this place he went on to Subash Chowk, the locality in which the appellant s shop is situate. It lies to the West of Zanda Bazar. He states that when he got there he found a crowd" there but not a "mob". He admitted that he had said in the First Information Report that a gun was fired a minute after he had reached the spot and he said that what he had stated in the First Information Report was true. It is not disputed that this shot was fired by the appellant, as also a second shot, and that caused the death of one man (a Sindhi) and injured three others, also Sindhis.

4. The map, Ex. D-4, shows that the shops of the appellant, and his brother Zahid Khan run into each other and form two sides of a rectangle the appellant s house facing North and the brother s house facing East. Each shop opens out on to a road.

5. It is proved that when the rioting broke out in the Zanda Chowk the alarm spread to the appellant s locality and the people there, including the appellant, started closing their shops.

6. The appellant s version is that the mob approached his locality and broke into the portion of the building facing East in which his brother s shop is situate and looted it. The High Court holds that this is proved and holds further that this preceded the firing by the appellant.

7. There is a hole in the wall between the two portions of the building in which these two shops are situate and the High Court holds that Zahid s family got into the appellant s portion of the building through this hole and took refuge there. The High Court also holds that the appellant s mother then told the appellant that the crowd had burst into his (appellant s) shop and was looting it. The learned Judges state that what he said was not quite true because all that the crowd did was to beat the door of the appellant s shop with lathis as they were passing but had not broken into the shop. But they accept the fact that the crowd was beating the doors of the appellant s shop with their lathis

8. In our opinion, the facts found by the High Court are sufficient to afford a right of private defence. Under S. 97, Penal Code, the right extends not only to the defence of one s own body against any offence affecting the human body but also to defending the body of any other person. The right also embraces the protection of property whether one s own or another persons against certain specified offences, namely theft, robbery, mischief and criminal trespass. The limitations on this right and its scope are set out in the sections which follow. For one thing the right does not arise if there is time to have recourse to the protection of the public authorities, and for another, it does not extend to the infliction of more harm than is necessary for the purpose of defence. Another limitation is that when death is caused the person exercising the right must be under reasonable apprehension of death, or grievous hurt, to himself or to those whom he is protecting; and in the case of property, the danger to it must be of the kinds specified in S. 103. The scope of the right is further explained in Ss. 102 and 105, Penal Code.

9. Neither the learned High Court Judges nor the Sessions Judge has analysed these provisions. Both Courts appear to be under the impression that actual lootin