1995 Supreme(SC) 1229

SUPREME COURT OF INDIA
M.K. Mukherjee and S.B. Majmudar, JJ.
Wassan Singh - Appellant
versus
State of Punjab - Respondent
Criminal Appeal No. 242 of 1983
Decided on 28-11-1995

IMPORTANT POINT
If an accused was protected by right of private defence under the situation and circumstances in which it could extend to even causing death of assailant and if in exercise of that right of private defence the blow fatally falls on an innocent person the action would still remain protected u/s 100 of the Indian Penal Code.

Headnote:Indian Penal Code, 1860 - Section 100; Clause secondly - Private defence of body Appellant received nine injuries - First injury caused on head by a sharp-edged weapon Right of private defence would extend to even causing death - His gun shot hitting an innocent lady fatally - Action protected u/s 100 - Section 301 not applicable.

       Held, that the appellant had received as many as nine injuries out of which first two injuries were on a very vital part, namely, on his head and injury No.1 was an incised wound which was caused by a sharp-edged weapon. Under these circumstances if the appellant fired one shot from his gun in his self-defence it could not be said that he had exceeded the right of private defence as the nature of assault by the complainant party which left him with the aforesaid injuries certainly could be said to have caused a reasonable apprehension in his mind that grievous hurt would otherwise be the consequence of such an assault. (Para 8)

       Further Held: It is true that the first injury caused on his head had fortunately not resulted into a fracture but when it was caused with a sharp cutth1g instrument on the vital part of his body, namely, right side of head, it cannot be gainsaid that at least a reasonable apprehension would arise in his mind at the spur of the moment that if he does not retaliate by using his weapon, namely, the gun with which he was armed he would certainly suffer at least a grievous hurt as a consequence of the assault by the complainant party. Under these circumstances the right of private defence of body available to the appellant would extend to even causing death. It is of course true that his gun shot unfortunately hit an innocent person like Smt. Bholan who was present on the scene of occurrence but as at the very same time and place the appellant had suffered an assault at the hands of the assailants comprising of the complainant party, right of private defence of body which would extend to even causing death of the assailant would arise in favour of the appellant on the facts of the present case and in exercise of that right if death is caused not of the assailant but of any other person it cannot be said that the right of private defence extending up to causing death of the assailant would not be available to the accused qua even an innocent party which got fatally hurt on account of the exercise of such a right of private defence which ensured for the Appellant under Section 100 clause secondly of the IPC. It is obvious that if an accused with an intention to kill his victim fires a shot at him which misses the target and hits any of the innocent person fatally he would remain guilty of an offence of murder but if the accused had no such intention and was protected by right of private defence under the situation and circumstances in which it could extend to even causing death of assailant as laid down by Section 100 and if in exercise of that right of private defence the blow fatally falls on an innocent person the action would still remain protected under Section 100 of the IPC.

       (Para 8)

       For applicability of that Section 301 the act must amount to culpable homicide in the first place. If the act is not culpable at all, then even if it results into homicide of an innocent person, in view of Section 100 IPC as in the present case, Section 301 will have no operation.

       (Para 8)

       Consequently Held: While judging the nature of apprehension which an accused can reasonably entertain in such circumstances requiring him to act on the spur of moment when he finds himself assaulted, by number of persons, it is difficult to judge the action of the accused from the cool atmosphere of the court room. Such situations have to be judged in the 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 situations have 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. (Para 9)