Back
2025 Supreme(All) 4034
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
J.J. MUNIR, SANJIV KUMAR, JJ.
Bankey And Others - Appellants
Versus
State of U.P. - Respondent
CRIMINAL APPEAL No. - 914 of 1985
Decided On : 19-12-2025
For the Appellant : Sudhakar Singh, Ajai Kumar Malviya, L.S. Srivastava.
For the Respondent: D.G.A.
The right of private defence is protective, not offensive, and ceases once the immediate threat is neutralized. Any disproportionate use of force beyond what is necessary for self-preservation constitutes an offence, and such a plea cannot be invoked to justify offensive aggression or retaliatory violence.
Headnote:(A) Indian Penal Code, 1860 - Sections 147, 148, 149, 323, 325, 302 - Unlawful assembly and common object - Prosecution to prove presence and participation of members of unlawful assembly - When the offence is committed in furtherance of a common object, all members are vicariously liable for the acts of others. (Paras 9, 46, 70)
(B) Right of Private Defence - Sections 96, 97, 100 - The right of private defence is a valuable right serving a social purpose but must not be construed as a license for offensive assault - The right exists only so long as the reasonable apprehension of danger persists and ceases once the threat is neutralized - Use of force disproportionate to the actual or apprehended harm negates the claim of private defence - Need for subjective assessment of the situation in the heat of the moment rather than detached objectivity. (Paras 62-68)
(C) Evidence - Related witnesses - The testimony of an injured witness is highly reliable as their presence at the place of occurrence is guaranteed by the nature of their injuries - A witness being a relative does not render their testimony inherently unreliable if it is consistent and cogent. (Paras 45, 47, 53)
Facts of the case:
A dispute arose over the use of irrigation facilities at a private site, leading to a breakdown in relations. The appellants were alleged to have accosted the victim while he was on his way to a facility to spend the night. An altercation occurred, which escalated into a violent assault involving multiple weapons, resulting in the death of one person and injuries to others. The appellants contended that the incident occurred at their residence and they acted in self-defence, as they had also sustained injuries during the scuffle.
Findings of Court:
The court observed that the prosecution version presented by the injured witnesses was consistent, natural, and supported by medical evidence. The contention regarding the place of occurrence was rejected due to lack of evidence and the logic of the event. The injuries sustained by the appellants were insufficient to establish that they were subject to an imminent threat warranting the lethal force used against the victim and his companions.
Issues: The main issues were the determination of the actual place of occurrence and whether the appellants were entitled to the right of private defence against a supposedly aggressive party.
Ratio Decidendi: The law does not permit a person to weigh in golden scales the force used in the heat of a moment, but it strictly prohibits the use of force once the apprehension of danger has disappeared. The appellants initiated the assault with lethal weapons, and the disproportionate nature of the violence precludes the application of the right of private defence.
Result: Appeal dismissed; conviction and sentences affirmed.
| Table of Content |
|---|
| 1. overview of trial facts and judicial proceedings. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10) |
| 2. evidentiary assessment of witness testimonies and medical findings. (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25) |
| 3. examination of rival arguments and defense contentions. (Para 26 , 27 , 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39) |
| 4. determining factual place of occurrence and reliability of narrative. (Para 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60) |
| 5. applying the scope and limits of private defence law. (Para 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69) |
| 6. final ruling on conviction and sentencing enforcement. (Para 70 , 71 , 72 , 73) |
JUDGMENT :
SANJIV KUMAR, J.
1. This appeal has been preferred by the appellants Bankey, Jagdish and Ramesh, Jahari and Ram Gulam against the judgment and order dated 02.04.1985 passed by Mr. I.N. Thakral, the then VIIth Additional Sessions Judge, Moradabad in Sessions Trial No. 769 of 1983, State Vs. Bankey and others (arising out of Case Crime No. 95 of 1983), under Sections 147, 148, 149, 323, 302 of the Indian Penal Code, 1860 (for brevity ‘IPC’), Police Station Nakhasa, District Moradabad.
2. By the impugned judgment and order, the learned Trial Court has convicted and sentenced appellants Bankey, Jadish and Ramesh to undergo two years rigorous imprisonment for the offence punishable under Section 148 IPC; the appellants Jahari and Ram Gulam to undergo one year rigorous imprisonment for the offence punishable under Section 147 IPC; all the appellants to undergo imprisonment for life for the offence punishable under Section 302 read with Section 149 IPC. All the appellants were further convicted and sentenced to undergo six months’ rigorous imprisonment under Section 323 read with Section 149 IPC and two years’ rigorous imprisonment under Section 325 read with Section 149 IPC. All the sentences were directed to run concurrently.
3. During the pendency of this appeal, appellant no.4 Jahari and appellant no.5 Ram Gulam have died and the appeal on their behalf was abated by this Court vide order dated 12.04.2018. Since appellant no.1, Bankey had also expired, the instant appeal on his behalf was abated by this Court vide order dated 24.05.2018. Now this appeal survives with regard to appellant no.2 Jagdish and appellant no.3 Ramesh only.
4. Brief facts of the prosecution case are that the informant Chandan s/o Mukundi, a resident of Village Nasarpur, Police Station Nakhasa, District Moradabad, submitted a written report (tahrir) (Ext. Ka-1), dated 15.06.1983, before the In-Charge, Police Station Nakhasa, Moradabad, alleging therein that his pumping set was installed for irrigation at the boring of Bankey, for which he used to pay 01 rupee per hour. Bankey demanded more money than due, which the informant did not pay. About two months prior to the occurrence, the nozzle and the plunger of his pumping set were stolen, when Ramesh and Jagdish, both sons of Bankey, were sleeping there during the night. Upon intervention of the villagers, he did not lodge a report in this regard. About 15 days prior to the incident, he fixed his pumping set at his own boring, resulting in financial loss to Bankey. In consequence, Bankey harboured a grudge against him.
5. The informant goes on to say that on 15.06.1983, at about 09:00 p.m., his brother Har Kishan proceeded to the informant's pumping set (boring) in order to retire for the night. On way, as he reached Jahari's house, he found Bankey, Jagdish, Ramesh, Jahari and Ram Gulam sitting over a closed well. Bankey is said to have accosted Har Kishan and told him that we would see to it that his tubewell does not run and that he had not paid Bankey's outstanding. Thereupon, Har Kishan, answered them by saying that their outstanding has been paid off, and, rather it was Jagdish and Ramesh, who had removed the nozzle and the plunger (from his pumpin
