2008 Supreme(SC) 1050

2008(5) Supreme 260
Supreme Court of india
Dr. Arijit Pasayat and P. Sathasivam, JJ.
Madan and Ors. — Appellants
versus
State of Madhya Pradesh — Respondent
Criminal Appeal No.1058 of 2008
(Arising out of SLP (Crl.) No. 6777 of 2007)
Decided on : 11-07-08

Important Point
A plea of right of private defence cannot be based on surmises and speculation.

Headnote:Indian Penal Code, 1860 – Section 302 r/w Section 149, Section 323 r/w Section 149 – Prosecution of appellant accused persons for entering into house of deceased by breaking open his wooden door and causing his death by assaulting him with Lathis – Conviction by trial Court – Appeal – Dismissed by High Court – Appeal – High Court observed that according to appellants incident occurred in two difference places in difference phases and in incident of assault to deceased and witnesses they were not present and they sustained injuries caused by deceased and some of injured witnesses at house of “K” – High Court in part accepted stand of appellants that they were exercising right of private defence, but at same time evidence also showed that appellants committed criminal trespass – Hence held that they could not claim benefit of exception of having acted in exercise of right of private defence-On a combined reading of judgments of trial Court and High Court held clear that evidence was to the effect that accused appellants were upto some stage exercising right to protect and defend their properties – But thereafter they exceeded the right – Fit case where instead of convicting appellants under Section 302 IPC held proper to convict appellants for offence punishable under Section 304 Part I, IPC – Appeal allowed in part. (Paras 9, 10, 11)

       Indian Penal Code, 1860 – Section 97 – Plea of right of private defence – Scope and ambit of – A plea of right of private defence cannot be based on surmises and speculation – While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor – In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting – Section 97 IPC deals with the subject-matter of right of private defence – The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. (Para 6)

       Indian Penal Code, 1860 – Sections 97, 100, 101 – Right of private defence – Limit and extent of -To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him – The burden is on the accused to show that he had a right of private defence which extended to causing of death- Sections 100 and 101, IPC define the limit and extent of right of private defence. (Para 6)

       Indian Penal Code, 1860 – Sections 102 and 105 – Right of private defence – Commencement and continuance of – Sections 102 and 105, IPC deal with commencement and continuance of right of private defence of body and property respectively – The right commences, as soon as a reasonable apprehension of danger to body arises from an attempt, or threat, or commit the offence, although the offence may not have been committed but not until that there is that reasonable apprehension – The right lasts so long as the reasonable apprehension of the danger to the body continues – As soon as the cause for reasonable apprehension disappears and the threat has either been destroyed or has been put to route, there can be no occasion to exercise the right of private defence. (Paras 7, 8)

       (AIR 1963 SC 612), (2003 (2) SCC 661), 2003 (7) SCC 643, 2006 (9) SCC 8) – referred to.

       Facts of the Case :

       1.Appellant accused persons were prosecuted herein in the instant case for entering into house of deceased by breaking open his wooden door and causing his death by assaulting him with Lathis. Trial Court convicted appellants for said offence. Appeal thereagainst was dismissed by High Court.

       2.Present appeal has been filed against said order of High Court.

       Findings of the Court :

       High Court observed that according to appellants incident occurred in two difference places in difference phases and in incident of assault to deceased and witnesses they were not present and they sustained injuries caused by deceased and some of injured witnesses at house of “K”. High Court in part accepted stand of appellants that they were exercising right of private defence, but at same time evidence also showed that appellants committed criminal trespass. Hence held that they could not claim benefit of exception of having acted in exercise of right of private defence. On a combined reading of judgments of trial Court and High Court held clear that evidence was to the effect that accused appellants were upto some stage exercising right to protect and defend their properties. But thereafter they exceeded the right. Fit case where instead of convicting appellants under Section 302 IPC held proper to convict appellants for offence punishable under Section 304 Part I, IPC. Appeal allowed in part.

       Result : Appeal allowed in part.