MADAN AND ORS.versusSTATE OF MADHYA PRADESH

                              (2008] 10 S.C.R. 855


                              MADAN AND ORS.                              A
                                       v.
                       STATE OF MADHYA PRADESH
                      (Criminal Appeal No.1058 of 2008)
                                JULY 11, 2008
                                                                          B
    ~
             [DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.]

               Penal Code, 1860: s. 302 r. w. s. 149 - Evidence Act, 1872
         - ss.97 to 105 - Right of private defence -Appellants entered
         the house of the deceased at night- Assaulted him with lath is c
         resulting in his death - Trial Court convicted them under
         ss. 302 t: w. s. 149 and sentenced to life imprisonment - High
         Court turned down the plea of right of private defence, how-
         ever altered the finding of trial Court that appellants were in-
         jured in the same incident in which the deceased and injured
                                                                           D
"' -+    witnesses were assaulted - On appeal, Held.: Evidence show
         that the appellants were up to some stage exercising the right
         to protect and defend their properties - But thereafter they
         exceeded the right - Therefore, conviction altered to one u/
         s. 304 Part I - In the interest ofjustice, sentence reduced to 10
         years.                                                            E

              Evidence Act, 1872 - ss. 97 to 105 - Right of private de-
         fence - Exercise of, when available.
               The prosecution case was that on the fateful night
.   ~    the deceased, his wife PW-2 and his daughter PW-1 were F
         sleeping inside their house. The appellants along with
         other 2 accused broke open the wooden door and while
         abusing the inmates, reached inside the courtyard. They
         told deceased that they would not allow him to take his
         buffallows from their field and asked as to why deceased G
         made a complaint in Tehsil Court. They also threatened
         to eliminate him. Thereafter they assaulted deceased with
    -~
         lathi. When PW-1 and PW-2 tried to save the deceased,
         they were also assaulted. The deceased fell unconscious
                                      855                          H
     856      SUPREME COURT REPORTS                [2008] 10 S.C.R.


A    and died on way to Police Station. The Trial Court, con-
     victed them under s.302 IPC r.w. s.149 and s.323 r.w. s.149
     IPC and sentenced to life imprisonment. On appeal, High
     Court turned down the.stand of appellants that they exer-
     cised dght of private defence. High Court however al-
8    tered the finding of trial Court that appellants were injured    y- .:_
     iii the same incident in which the deceased and injured
     witnesses were assaulted. Hence the present appeal.
           Partly allowing the appeal, the Court
c·       · HELD: 1. 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 ac-
    cused, 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      + .,
D an accused, the entire incident must be examined with
    care and viewed in its proper setting. [Para 6] [859-G,
     SSO~A,B].

        JaiDev .v. State of Punjab AIR (1963) SC 612; Rizan
E and Anr. v. State of Chhattisgarh, through the Chief Secretary,
  Govt. of Chhattisgarh, Raipur, Chhatttisgarh (2003) 2 SCC
  661; Sucha Singh and Anr. v. State of Punjab (2003) 7 SCC
  643; Raj Pal and Ors. v. The State of Haryana (2006) 9 SCC
  678. - relied on.
F      2. The High Court has in part; accepted the stand of
  the appellants that they were exercising the right of pri~
  vate defence, but at the same time the evidence also
  shows that the appellants committed criminal trespass.
  Therefore, they cannot claim the benefit of exception of
G having acted in exercise of right of private defence. On a
  combined reading of the judgments of the trial Court and
  the High Court it is clear that the evidence is to the effect
  that the accused appellants were upto some stage exer-
  cising the right to protect and defend their properties. But
H thereafter they exceeded the right. Therefore, this appears
                            MADAN & ORS. v. STATE OF MADHYA                      857
       )'
                             PRADESH [DR. ARIJIT PASAYAT, J.]

             to be. a case where instead of convicting the appellants                   A
             under s.302 IPC it would be proper to convict the appel-
             lants for offence punishable under s. 304 Part I, IPC. Cus-
             todial sentence of 10 years would meet the ends of jus-
             tice. [Paras 9,10] [861-C,D,E]
.. ..,            CRIMINALAPPELLATE JURISDICTION: Criminal Appeal                       B
             No. 1058 of 2008
                  From the final Judgment and Order dated 18.5.2007 of
             the High Court of Madhya Pradesh, bench at Indore in Crl. Ap-
             peal No. 1246 of 1997                                                      c
                      Navin Kumar Singh and Aruneshwar Gupta for the Appel-
             Iants.
                 Dr. N.M. Ghatate, C.D. Singh, Merusagar Samantaray and
             Sunny Chowdhary for the Respondent.
 -;   ..,.                                                                              D
                      The Judgment of the Court was delivered by
                      Dr. ARIJIT PASAYAT, J. 1. Leave granted.
                  2.Challenge in this appeal is to the judgment of a Division
             Bench of Madhya Pradesh High Court, Indore Bench upholding                 E
             the conviction of the appellants for offence punishable under
             Section 302 read with Section 149 and Section 323 read with
             Section 149 of the Indian Penal Code, 1860 (in short the 'IPC').
             Each of the appellants was sentenced to undergo RI for life and
.., .....    to pay a fine of Rs.1,000/- with default stipulation.                      F
                      3. The prosecutiorJ,-<l'ise as unfolded during trial is as fol-
             lows:

                   In the intervening night of 3rct and 41h July, 1991 at about
              12.00 in village Khandakhedi Kishanlal (hereinafter referred to
                                                                                G
              as the 'deceased'), his wife Sampatbai and daughter
       K      Premlatabai were sleeping inside their house. At that moment
             appellants and deceased accused Jalu @ Jalamsingh and ju-
             venile accused Jeevan reached at their house. They broke open
             the wooden door, while abusing the inmates and reached in the
                                                                                H
     858       SUPREME COURT REPORTS                 [2008] 10 S.C.R.


A     courtyard. They told deceased Kishanlal that th~y would not
      permit him to take his she-buffallows from their field and asked
      as to why deceased made a complaint in Tehsil/Revenue Court.
      They also threatened to eliminate him. While saying all these,
      appellants Madan and Kamal caught hold both the hands of
B     Kishanlal and threw him near the wall, thereafter assaulted him     .,..     ~
      by lathi. Sampatbai, wife of deceased Kishanlal (PW-2) cried
      for help. She and her daughter Premlata (PW-1) tried to save
      deceased but bo"th were assaulted by lathi. Umraobai (PW-3)
      was assaulted by the deceased accused Jalu @ Jalamsingh
·c    when she tried to rescue the deceased. Babulal (PW-7) after
      hearing the cry reached over there and he was also assaulted
      by accused persons. When Ramsingh (PW-8) and Premsingh
      (PW-9) arrived, appellants fled away. The deceased fell uncon-
      scious and died on the way to police station. Premlata (PW-1),
D     Sampatbai, Umraobai, Babula!, Premsingh alongwith village
      Chowkidar Anarsingh reached at the police station at 4.00 a.m.       ~ '"
      and lodged the report (Ex.P-1) which was recorded by SHO
      (PW-12) Nandlal. The injured persons were sent for medical
      examination and treatment. Their medical reports are Ex.P-24
E    to P-28. After preparation of inquest report (Ex.P-11) dead body
      of Kishanlal was sent to hospital and postmortem was con-
     ducted by Dr. A.S. Rana (PW-13) who issued postmortem re-
      port (Ex.P-29). Investigating Officer prepared spot map (Ex.P-
      2)· and also effected seizure of blood stained earth, controller
     earth, pieces of sticks vide Ex.P-3 from the spot. Through sei-
F    zure memo (Ex.P-4) pieces of bangles, pieces of glass of watch       .;. . . ,...
     and roof tiles were seized. Patvari Govindram (PW-6) prepared
     the spot map (Ex.P-10). After arrest, on disclosure statement of
     the accused persons lath is were seized and seized articles were
     sent with covering letter (Ex.P-23) to FSL, Sagar. Dr. Rana also
G    gave report (Ex.P.,30) after examination of lathis seized from
     the accused persons. On completion of the investigation charge
                                                                                   .....
     sheet was filed before the learned JMFC, Sanwer against the         "1'
     appellants and deceased accused Jalu @ Jalam and juvenile
      accused Jeevan was produced and charge sheeted before the
H    juvenile Court as directed by the trial Court because he was
            MADAN & ORS. v. STATE OF MADHYA                    859
             PRADESH [DR. ARIJIT PASAYAT, J.]

found below 16 years of age. During the course of trial, accused      A
Jalu @ Jalamsingh died, therefore, case against him was
closed.
      The appellants denied the charges and pleaded inno-
cence. They examined three witnesses in defence whereas
prosecution examined 15 witnesses and adduced 31 documents            8
in evidence. The trial Court found the appellants guilty, convicted
them as afore noted.
      Before the High Court the stand taken was to the exercise
of the right of private defence. It was pointed out that the de-      c
ceased and prosecution witnesses were aggressors. In any
event, when the appellants had assaulted, then in right of pri-
vate defence they are entitled to get the benefit of exception in
terms of Sections 96 and 97 IPC. The High Court turned down
the stand and upheld the conviction.
                                                                   D
       4: In support of the appeal, learned counsel for the appel-
lants submitted that most of the injuries were on non vital parts.
It has been established that injuries have been sustained by the
appellants in the same incident. The High Court had exercised
the appellate power under Section 386 (b)(ii) of the Code of E
Criminal Procedure, 1973 (in short the 'Code') and had altered
the finding of the trial Court in para 27 that the appellants were
injured in the same incident in which the deceased and injured
witnesses were assaulted and it was held that as per own say-
ing by the defence the appellants sustained injuries at the house F
of the appellant-Kamal. In essence, it was pointed out that the
trial Court and the High Court should have accepted the plea of
exercise of right of private defence.
     5. Learned counsel for the respondent-State on the other
hand submitted that there was injury on the head though there G
was no fracture and the rest were on non vital parts of the body.
Nevertheless, even according to own saying of the accused
appellants, there was no question of exercise of right of private
defence.
                                                                      H
    860       SUPREME COURT REPORTS                  [2008] 10 S.C.R.
                                                                         '(             "
A       6. 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

B
  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 per-
  son exercising the right; or (ii) of any other person; and the right
c may be exercised in the case of any offence against the body,
  and in the case of offences of theft, robbery, mischief or crimi-
  nal trespass, and attempts at such offences in relation to prop-
  erty. Section 99 IPC lays down the limits of the right of private
  defence. Sections 96 and 98 IPC give a right of private de-
  fence against certain offences and acts. The right given under
D
  Sections 96 to 98 and 100 to 106 IPC is controlled by Section          +- )"'>
  99 IPC. To claim a right of private defence extending to volun-
  tary causing of death, the accused must show that there were
  circumstances giving rise to reasonable grounds for apprehend-
  ing that either death or grievous hurt would be caused to him.
E 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.

F       7. Sections 102 and 105, IPC deal with commencement
  and continuance of the right of private defence of body and prop-      ~      "
  erty respectively. The right commences, as soon as a reason-
  able apprehension of danger to the 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
G
  apprehension. The right lasts so long as the reasonable appre-                   ~

  hension of the danger to the body continues. In Jai Dev v. State                '
                                                                                ....
                                                                         ~
  of Punjab (AIR 1963 SC 612), it was observed that as soon as
  the cause for reasonable apprehension disappears and the                         ;.
  threat has either been destroyed or has been put to route, there
H
                 MADAN & ORS. v. STATE OF MADHYA                   861
)                 PRADESH [DR. ARIJIT PASAYAT, J.]

    can be no occasion to exercise the right of private defence.          A
          8. The above position was highlighted in Rizan and An-
    other vs. State of Chhattisgarh, through the Chief Secretary,
    Govt. of Chhattisgarh, Raipur, Chhatttisgarh (2003 (2) SCC
    661 ), and Sucha Singh and Anr. v. State of Punjab (2003 (7)
    SCC 643) and Raj Pal and Ors. v. The State of Haryana (2006           B
    (9) sec 678).
           9. The High Court observed that according to the appel-
    lants incident occurred in two difference places in difference ,
    phases and in the incident of assault to the deceased and the c
    witnesses they were not present and they .sustained injuries
    caused by the deceased and some of the injured witnesses at
    the house of Kamal. The High Court has in part accepted the
    stand of the appellants that they were exercising the right of
    private defence, but at the same time the evidence also shows
                                                                     0
    that the appellants committed criminal trespass. Therefore, they
    cannot claim the benefit of exception of having acted in exer-
    cise of right of private defence.
          10. On a combined reading of the judgments of the trial
    Court and the High Court it is clear that the evidence is to the      E
    effect that the accused appellants were upto some stage exer-
    cising the right to protect and defend their properties. But there-
    after they exceeded the right. Therefore, this appears to be a
    case where instead of convicting the appellants under Section
    302 IPC it would be proper to convict the appellants for offence      F·
    punishable under Section 304 Part I, IPC. Custodial sentence
    of 10 years would meet the ends of justice.
           11 . The appeal is allowed to the aforesaid extent.
    D.G.                                      Appeal partly allowed.