Holding

The Supreme Court held that the respondents were justified in exercising the right of private defence under s.97, as the constable's three shots created a reasonable apprehension of death or grievous hurt, and therefore dismissed the appeal.

Summary

The respondents, led by Niyamat, attempted to rescue a suspect, Dharampuri, who had been taken into police custody. When constable Gauri Shanker fired three shots, the respondents perceived a reasonable threat of death or grievous injury and assaulted the constables, snatching a gun and cartridges, during which the informant Virendra Nath was killed. The trial court convicted them under IPC sections 302, 149, 395 and 147, but the Allahabad High Court acquitted, holding that the arrest was unlawful, the respondents were not an unlawful assembly, and they were justified in exercising the right of private defence under s.97 because of the reasonable apprehension created by the shots. The State appealed, arguing that s.99 barred the defence and that lawful methods could have been used. The Supreme Court upheld the High Court, finding that the three shots indeed caused reasonable apprehension of death or grievous hurt, thereby attracting s.97 and not s.99, and dismissed the appeal.

Issues considered

The legality of the arrest of Dharampuri under CrPC s.41
Whether the respondents could invoke the right of private defence under IPC s.97 when the arrest was unlawful
Whether IPC s.99 bars the claim of private defence in the circumstances
Whether the respondents constituted an unlawful assembly or were rioting
Whether individual liability could be established given the evidence

Legislation cited

Code of Criminal Procedure, 1973s. 41
Indian Penal Code, 1860s. 147, s. 149, s. 302, s. 395, s. 97, s. 99

Subjects

private defenceunlawful arrestreasonable apprehensionCrPC s.41IPC s.97IPC s.99unlawful assemblyriotingappeal dismissed

Judgment

STATE OF U.P. A
v.
NIYAMAT & ORS.
';o-,;f
APRIL 14, 1987

[V. KHALID AND G.L. OZA, JJ.] B

Criminal Procedure Code, 1973: s. 41-Arrest without warrant-
When unlawful.
~
Indian Penal Code, 1860: ss. 97 & 99-Reasonable apprehension
... ·-r- of death or grievous hurt-Right of private defence-Whether avail- c
able-Rescue of persons unlawfully arrested-Use of force-Whether
permissible.

"~ The respondents, said to be armed with spears pharsas and Iathis,
were alleged to have assaulted the police party returning after appre·
bending a suspect villager, resulting in the death of the informer 1md D
grievous injuries to the constables, and to have secured the rele.ase of
the suspect. They were also alleged to have snatched the private gun
and belt of cartridges from the constable. The incident took place at
night. They were convicted hy the trial court under s. 302 read with s,
149, and ss. 395 and 147 I.P.C.
---'{ E
The High Court on appraising the evidence and the FIR came to
~
the conclusion; (i) that the sole object of the respondents in going to the
place of occurrence was only to rescue the suspect and not to assault or
murder anyone; (ii) that the arrest of the suspect by the police was abso·
lutely unjustified and not legal since no material had been produced
~
""' either to indicate his involvement in a cognizable offence or for causing F
_j' reasonable suspicion, therefore, the respondents had a right to get the
suspect rescued from custody; (iii) that the respondents did not use
force till one of the constables tried three shots, one after another,
which was sufficient to cause a reasonable apprehension of either death
or grievous hurt in the minds of the respondents, therefore they were
acting in the right of private defence; (iv) that none of the respondents G
made any attempt on the life of the informer till he himself intervened to
help the constable, and held that as such it could not be said that they
were members of an unlawful assembly or were committing rioting
when they used force. In the premises, the Court recorded acquittal of
the respondents.
.H

953
954 SUPREME COURT REPORTS I1987] 2 S.C.R.
A In the appeal to this Court it was contended for the State: (I) that
even if the arrest of the suspect was not legal, in view of s. 99 I.P.C.
right of private defence was not available to the respondents under s. 97
I.P.C. and they could have taken recourse to use lawful methods for
rescuing the suspect rather than resorting to violence; and (2) that there
was no cause for reasonable apprehension of serious injuries to the
B respondents, for the constable had fired shots in the air just to frighten
the respondents and since it was moonlit night the respondents could
have seen the direction in which shots were fired.

Dismissing the appeal, the Court,

c whereHELD: Section 99 of the Indian Penal Code is only attracted
there is no reasonable apprehension of death or grievous hurt. In
the instant case, the respondents did not use force unless and until one
of the constables actually fired shots. Even if it is accepted that it was a
moonlit night, it could safely be inferred that the light may not be
sufficient enough so that from a distance the resp~ndents could notice
D the direction of the barrel of the gun when shots were fired. In such a
situation, the conclusion reached by the High Court that it was suffi-
cient to cause reasonable apprehension in the minds of the respondents
of death or grievous injury, and, therefore, they were entitled to right
of private defence, was justified. [959H; 960E-G l

E If the respondents could not be held to be members of an unlawful
assembly as their object at best could only be to resce the suspect from
unlawful custody, then even if the right of private defence is not
accepted, it is not possible on the basis of the prosecution evidence
to find out what respondent caused what injury and it will not be possi-
ble to find them guilty for their individual acts. The same will be the
F situation even if it is held that they exceeded the right of private
defence. [960G-H; 96IA]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 335 of 1978.

G From the judgment and Order dated 13.4.1977 of the Allahabad
High Court in Criminal Appeal No. 1855 of 1975.

Dalveer Bhandari, C.P. Mittal and Pramod Swarup, for the
Appellant/Petitioner.

' H R.K. Garg, S.C. Birla, Mukesh K. Giri, S.C. Patel, Syed Ali
U.P. STATE v. NIYAMAT [OZA, J.] 955

Ahmad, Syed Tanweer Ahmad, Shakuat Hussain and Ms. Jayshree
A
Ahmad for the Respondents.

The Judgment of the Court was delivered by

OZA, J, This appeal has been preferred by the State after
obtaining leave from this Court against the acquittal of the respon- B
dents recorded by the High Court of Allahabad by its judgment dated
13th April 1977 hearing an appeal against the conviction of the respon-
dents recorded by First Additional Sessions Judge, Etah convicting all
--r the respondents under Sec. 302 read with 149, Sec. 395 and 147 and
sentenced to life, 10 years and 2 years rigorous imprisonment respec-
tively to each one of the respondents.
c
The prosecution case at the trial was that on 27.10.1974 A.S.I.
Om Prakash Sharma accompanied by two constables Gauri Shanker,
P. W. 2 and Kanauji Lal, P.W. 4 went to village Nidhauli Khurd, which
was at a distance of three miles from Kotwali Etah, and arrested one
Laturi there at about 1 or 1.30 P.M. Virendra Nath, deceased, had D
helped them in arresting the said Laturi. The A.S.L and the two const-
ables returned to the Police Station Kotwali Etah with Latmi in
custody at 6.50 P.M. A few minutes later these constables, Gauri
Shanker and Kanauji Lal, were given summons for service on one
Girish of Village Nidhauli Khurd. So constables Gauri Shanker and
Kanauji Lal returned to the Village Nidhauli Khurd the same evening E
at about 7.30 P.M. to serve the summons. It is alleged that at that time
the two constables were wearing police uniforms and Gauri Shanker
was carrying his personal DBBL gun and a belt of cartridges.
>·
While they were in the village, Virendra Nath, deceased, infor-
J med them that a bad character named Dharampuri was staying at the F
house of Bahori Gir, and it is alleged that the Station Officer Kotwali
Etah had earlier told these constables that Dharampuri was a bad
character (badmash) belonging to Agra District and that he had to be
arrested. When Virendra Nath informed these constables that
Dharampuri was at the house of Bahori Gir, they went to the house of
Bahori Gir and arrested Dharampuri at about 8.30 P.M. and after G
'"'1. • arresting him the two constables started for Etah with Dharampuri in
custody and Virendra Nath, deceased, also accompanied them.

At about 9 P.M. when the constables accompanied by Virendra
Nath, deceased and· Dharampuri in custody reached near the field of
one Matadin adjoining Etah-Shikohabad road, the respondents armed H
956 SUPREME COURT REPORTS [1987] 2 S.C.R.

A with spears, pharsas and lathis reached there with intention to rescue
Dharampuri from the custody of the constables. Seeing this constable
Gauri Shanker fired a shot in the air with his private gun in order to
scare away the respondents. When this shot was fired the respondents
stopped and the constables proceeded further. It is alleged that there-
after the respondents also advanced and then Gauri Shanker fired a
B second shot, again the respondents stopped for a while and the const-
ables proceeded ahead. And after a short time the respondents again
advanced towards the police party and asked them to release
Dharampuri. It is alleged that at that time they threatened the const-
ables and the constables refused to release Dharampuri and Gauri
Shanker fired the t~ird shot in order to deter the respondents. Hearing
the noise, the witnesses and some other persons reached the place,
C some of whom were carrying torches and flashing them. It is
alleged that it was also a moonlit night. On this, according to the
prosecution, the respondents assaulted the. constables causing injuries
to them and they rescued Dharampuri from the custody of the const-
ables. They· attempted to snatch the gun of the constable Gauri
D Shanker and it is then Virendra Nath intervened. He also told them
not to snatch the gun and,also physically intervened to prevent them
from snatching the gun and the belt of cartridges from the constable.
In this he fell down and the respondents succeeded in snatching the
gun and the belt of cartridges and in this scuffle Virendra Nath was
assaulted and he received large number of injuries as a result of which
E he died on the spot. The respondents, it is alleged, thereafter made
good their escape and they also .took away Dharampuri, the gun of -
constable Gauri Shanker and the cartridges.

After the respondents went away, the brother of Virendra Nath
who had also arrived on the scene got a report written out by his
F younger brother Satish Chandra and lodged the report at the Police
Station Kotwali Etah which was at a distance of about 3 miles at 10.15
P.M. the same night. Constable Gauri Shanker was medically exa-
mined by Dr. R.R. Sharma at the district Hospital, Etah on the same
night i.e. 27.10.1974 at 11 P.M. the doctor found 12 injuries on his
person consisting of 5 lacerated wounds on the head, 5 contusions and
G two abrasions on different parts of his body. Constable Kanauji Lal
was medically examined the next morning i.e. on "28th Oct. 1974 at
10.15 a.m. and he was found to have two bruises and an abrasion.

Dr. R.P. Yadav performed the postmortem examination on the
body of Virendra Nath. He found two incised wounds, seven stab
H wounds, five lacerated wounds and sixteen contusions on various parts
U.P. STATE v. NIYAMAT (OZA, J.) 957

of his body. All the respondents pleaded not guilty. The prosecution
A
'-+ examined 12 witnesses in support of the prosecution case, out of whom
the informant Rajendra Nath; P.W. l, Brahma Singh, P.W. 3 and the
two constables Gauri Shanker P.W. 2 and Kanauji Lal, P.W. 4 are the'
eye witnesses.

The learned Judges of the High Court after considering the evi- B
dence of the witnesses especially the eye-witnesses, the First Informa-
~ tion Report, came to the conclmion that the respondents had collected
and gone to Matadin's field with the sole object to rescue Dharampuri
and that they had not gone to that place with the intention of assault-
-~
ing much less murdering Virendra Nath. It was further found from the
recital in the F.I.R. by the High Court that the respondents in the
beginning tried simply to rescue Dharampuri from the custody and c
• -1 none of them assaulted either the constables or Virendra Nath and it
was only when Constable Gauri Shanker fired 2 or 3 shots with his gun
that he was assaulted and his gun and cartridges were snatched. The
learned Judges also observed "it is obvious that at that time when it
must have been dark (except for the light of torches which were being D
flashed and which could not have produced any steady light) the appel-
!ants (respondents in this Court) could not have seen the direction in
which the shots were fired. So they may well have thought that they
were being fired at and reasonably apprehended serious injuries to
~ themselves." On reading of the F.I.R. the learned Judges rightly
came to the conclusion that the respondents assaulted the constables E
' only when one of the constables actually fired. It was also found that
none of the respondents made any attempt on the life of Virendra
Nath till he himself intervened to help the constables. In view of these
> findings reached by the.High Court, it was found that the object of the
respondents when they came to the field of Matadin was only to rescue
) Dharampuri and it was not their object to assault or murder anyone. F
This conclusion was reached by the learned Judges even after consi-
dering in detail the evidence of constables Gauri Shanker and Kanauji
Lal. Consequently the finding of fact reached by the High Court is that the
respondents came to the place of occurrence with the sole object of
rescuing Dharampuri from the custody of Constables Gauri Shanker
and Kanau ji Lal. So far as these facts are concerned they are not much G
·--;: in dispute. The learned counsel appearing for the appellant State con-
tended that even if the arrest of Dharampuri was illegal the respon-
dents had no right of private defence under Sec. 97 to rescue Dharampuri
especially in view of Sec. 99 of the Indian Penal Code.

The learned Judges of the High Court also came to the conclu- H
958 SUPREME COURT REPORTS [ 1987) 2 s.c.R,

A sion that if arrest of Dharampuri was illegal it could not be said that
the respondents when they collected wi.th the object of rescuing him ii
could be said that they were members of an unlawful assembly or were
committing rioting when they used force.

B The High Court considered the provisions or Code of Criminal
Procedure in respect of arrest to come to a conclusion as to whether it
could be said that the arrest was lawful. For that purpose the relevant
provisions which has been conside.red is Sec. 41 of the Code of Crimi-
nal Procedure, 1973. Learned counsel for the appellant contended that
the relevant provision is Sec. 41 clause (a). The constables were !Old
by the Police Officer and on that basis it could be suggested that a
C reasonable suspicion existed that Dharampuri was concerned in some
cognizable offence or that a reasonable complaint has been made.

High Court came to the conclusion that the police officer who is
said to have told the constables has not been examined. No material
D . has been produced to indicate that there was any complaint of
Dharampuri being involved in a cognizable offence nor any. other
mateFial produced to indicate that there was material for reasonable
suspicion. High Court on the basis of the material as it was came to the
conclusion that the arrest was absolutely unjustified and not legal and
in this view of the matter it was held that the respondents had a right to
E get Dharampuri rescued from the custody. Learned counsel appearing
for the appellant State in view of the material as has. appeared in
evidence contended that even if it is held that the arrest was not legal
he emphasised that in view of Sec. 99 I.P .C. right of private defence
was not available to the respondents and it was contended that the
F judgment of the High Court could not be sustained.

The learned Judges of the High Court came to the conclusion
that as the arrest was not legal it could not be held that the respondents
were members of an unlawful assembly when the sole object of theirs
was to rescue Dharampuri who was wrongfully arrested by the const-
G ables. They also came to the conclusion that the respondents did not
use force till Constable Gauri Shankar fired not one but three shots
one after another which was sufficient in the light of the circumstances
of case for a reasonable apprehension in the minds of the respondents
that their lives may be in danger and it is in this view that the High
Court came to the conclusion that they were acting in the right of
H private defence. Sec. 97 I.P.C. reads thus:
U.P. STATE v. NIYAMAT (OZA, J.] 959

"Every person has a right, subject to the restrictions con-
A
'----1- tained in section 99, to defend-

First-His own body, and the body of any other person,
against any offence against the human body.

Secondly-The property whether movable or immovable, B
of himself or of any other person, against. any act which is
-\ an offence falling under the definition of theft, robbery,
miscl\ief or criminal trespass, or which is an attempt to
eom.mit theft, robbery, mischief or criminal trespass."
- -'lr-
The first part deals with the oody against any offence affecting the
l\11man body either on the person himself or any other person and this
c
will include an unlawful arrest also as an unlawful arrest is a offence
~
~ against human body.

Sec. 99 on which the emphasis was laid by the learned counsel,
reads: D

"There is no right of private defence against an act which
does not reasonably cause the apprehension of death or of
grievous hurt, if done, or attempted to be done, by a
''i
-
public servant acting in good faith under colour of his
office, though that act may not be strictly justifiable by Jaw. E

There is no right of private defence against an act
which does not reasonably cause the apprehension of death
_>-- or of grievous hurt, if done, or attempted to be done, by
the direction of a public servant acting in good faith under
j colour of his office, though that direction may not be F
strictly justifiable by law.

There is no right of private defence in cases in which
there is rome to have recourse to the prolection of the
public authorities.
G
The right of private defence in no case extends to the
inflicting of more harm than it is necessary to inflict for the
purpose of defence."

In fact the first sentence of this section itself makes it clear that this
section is only attracted where there is no reasonable apprehension of H
I
'
960 SUPREME COURT REPORTS [1987] 2 S.C.R.

A death or grievous hurt and the emphasis laid by the High Court in its
judgment on the fact that the respondents did not use force unless and Y
until the constable shot three rounds which apparently will cause a
reasonable apprehension of death or grievous hurt in the minds of the
respondents. Once the circumstances justified such a reasonable
apprehension the contention of the learned counsel for the appellant
B (State) that in such a situation even if the arrest was illegal the respon-
dents could have taken recourse to use lawful methods for rescuing ·
Dharampuri rather than resorting to violence. This contention of the )-
learned counsel could have some weight if the incident had not started
after t~e constable fired three rounds from his gun. Realising this "i •
difficulty an attempt was made by learned counsel for the appellant
C State to contend that this constable, as his evidence discloses, fired
shots in air just to frighten the respondents and the learned Judges of
the High Court came to the conclusion that it was night and though )-- '
torches were being flashed but there will not be consistent light and
when the constable fired not one but three shots one after another the
respondents naturally will have a reasonable apprehension of either
D death or grievous in jury. In order to contend that this finding reached
by the High Court on facts is not justified, it was contended that it was
a moonlit night, there were torches flashed but it is significant to see
the circumstances which emerged from the evidence that the const-
ables were moving with Dharampuri in custody and the deceased
whereas the respondents were moving at some distance. Even if it is
E accepted that it was a moonlit night, it could safely be inferred that the
light may not be sufficient enough so that from a distance the respon-
dents could notice the direction of the barrel of the gun when cons-
table Gauri Shanker fired the shots.

It also appears from the prosecution evidence that the torches
F were flashed when there was a melee and other witnesses reached
hearing the shots and in such a situation the conclusion reached by the
High Court that when this constable fired one after another three shots
it was sufficient to cause reasonable apprehension in the minds of the
respondents of death or grievous injury and therefore they were en-
titled to right of private defence is justified.
G
The learned Judges of the High Court also considered the other
aspects of the matter that if the respondents could not be held to be
members of an unlawful assembly as their object at best could only be
to rescue Dharampuri from unlawful custody, then even if the right of
private defence is not accepted, it is not possible on the basis of the
H prosecution evidence to find out what respondent caused what injury
U.P. STATE v. NIYAMAT [OZA, J.I 961

and it will not be possible to find them guilty for their individual acts. A

'-+ The same will be the situation even if it is held that they exceeded the
right of private defence.

Learned counsel for the appellant State took us through a discus-
sion of evidence by the Sessions Judge and also by the High Court and
B
also referred to relevant portions of the evidence of the prosecution.

,
Having gone through them, in our opinion, it could not be concluded
that the learned Judges of the High Court committed an error in com-
__ ing to the conclusion that when the respondents used force it was only
after 3 shots were fired and therefore they were acting in the right of
private defence and in this view of the matter the conclusions reached
by the High Court, in our opinion, could not be assailed. We therefore c
see no reason to entertain this appeal. It is therefore dismissed. The
acquittal recorded of all the respondents by the High Court is there-
fore maintained. SLP (Cr!.) No. 362/78 is also dismissed for the
reasons stated above.
D
P.S.S. Appeal dismissed.

>