SUKUMARANversusSTATE REP. BY THE INSPECTOR OF POLICE

660                       [2019]
               SUPREME COURT     4 S.C.R. 660
                              REPORTS                      [2019] 4 S.C.R.


A                               SUKUMARAN
                                        v.
               STATE REP. BY THE INSPECTOR OF POLICE
                         (Criminal Appeal No. 5 of 2009)
B                              MARCH 07, 2019
                     [ABHAY MANOHAR SAPRE AND
                        R. SUBHASH REDDY, JJ.]
             Penal Code, 1860: s.302 r/w ss.109 and 203 – Prosecution
      case was that appellant-A-1 was working as Forest Range Officer
C
      – On the fateful day, while he was on duty and going in his official
      jeep along with co-accused, the driver of his jeep, he noticed four
      persons (deceased driver, PW1, PW2 and one cleaner) in a lorry –
      Suspecting smuggling of sandalwood, he chased them and after
      some distance when the lorry stopped and the driver of the lorry
D     and his associates started running, he fired a gun shot from his
      DBL-gun which hit the driver causing his death – It was the case of
      prosecution that the lorry which the deceased was driving was empty,
      however, the appellant after he shot the deceased, got down from
      his jeep and loaded sandalwood weighing 276 Kgs and also kept
      one SBML gun in the lorry – Thereafter, with the help of co-accused,
E
      the appellant caught hold of PW-1 and PW-2 and brought them to
      police station and gave the false information by lodging the complaint
      that he fired the gun shot to the deceased in his right of private
      defence – Appellant along with co-accused was tried for offence
      under s.302 r/w ss.109 and 203, s.36-A and E of Tamil Nadu Forest
F     Act, 1882 and s.3 r/w s.25(1-B)(a) of Arms Act, 1959 – Appellant
      was convicted while co-accused was acquitted by trial court – High
      Court allowed the appeal in part and altered conviction of appellant
      under s.302 to s.304 Part II while acquitting him for offence under
      Arms Act and Forest Act – On appeal, held: Both the eye witnesses
      PWs 1 and 2 and also other two more witnesses, namely, PW-3 and
G
      PW-7 were declared hostile and, therefore, there was no evidence
      to prove as to how and in what manner, the incident in question
      took place – Prosecution was not able to prove the manner in which
      the incident occurred as alleged by them in their charge sheet – In
      this view of the matter, the appellant was entitled to be acquitted
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                                     660
      SUKUMARAN v. STATE REP. BY THE INSPECTOR                             661
                     OF POLICE

from the charges for want of any evidence against him – Tamil Nadu         A
Forest Act, 1882 – s.36-A and E – Arms Act, 1959 –s.3 r/w
s.25(1-B)(a).
        Penal Code, 1860: ss.96 to 106 – Right of private defence –
Appellant-A-1 was working as Forest Range Officer – On the fateful
day, while he was on duty, he noticed that four persons were going         B
in a lorry – Suspecting smuggling activity, he chased them –
Thereafter, the driver of the lorry and his associates started pelting
stones at them and shouted “fire them” – At that time, appellant
fired a gun shot which hit the driver of the lorry resulting his death
– Defence of the appellant that he fired a gun shot on the deceased
party in his right of private defence, was not accepted by High            C
Court – On appeal, held: High Court failed to appreciate that the
appellant had every reason to believe that due to suspicious
movement of the deceased party in the forest, they were trying to
smuggle the sandalwood from the forest – The deceased party was
aggressor because, they first pelted the stones and damaged the            D
appellant’s vehicle shouting “fire them” – It was the duty of the
appellant to apprehend the culprits who were involved in the activity
of smuggling sandalwood and at the same time to protect himself
and his driver in case of any eventuality arising while apprehending
the culprits – The appellant while firing the gun shot did not target
any particular person out of four as such but fired to resist their        E
aggression towards him and his driver – If the appellant had not
fired, the deceased party having said “fire them” would have either
used their gun in shooting the appellant or the driver or would
have run away from the spot to avoid their arrest – One gun was
seized from the deceased party on their arrest which was deposited         F
by the appellant along with his own gun in the police station while
registering the FIR – The appellant being a forest ranger on duty
was entitled to use his gun against the deceased party – In view of
this, firing of gun shot by the appellant towards the deceased party
was not unjustified.
                                                                           G
      Penal Code, 1860: ss.96 to 106 – Right of private defence –
Exercise of – The right does not arise if there is time to have recourse
to the protection of the public authorities, and for another, it does
not extend to the infliction of more harm than is necessary for the
purpose of defence – Another limitation is that when death is caused,
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662            SUPREME COURT REPORTS                      [2019] 4 S.C.R.


A     the person exercising the right must be under reasonable
      apprehension of death, or grievous hurt, to himself or to those whom
      he is protecting; and in the case of property, the danger to it must
      be of the kinds specified in s.103.
            Allowing the appeal, the Court
B           HELD: 1. The order of the Sessions Judge and the High
      Court show that both the eye witnesses, i.e., PW-1, PW-2 and
      also PW-3 and PW-7 were declared hostile. When both the eye
      witnesses–PWs 1 and 2 and also other two more witnesses,
      namely, PW-3 and PW-7 were declared hostile, there was no
C     evidence to prove as to how and in what manner, the incident in
      question had occurred. [Para 25] [668-E-F]
            2. The appellant took a defence that he fired a gun shot on
      the deceased party in his right of private defence. Sections 96 to
      106 of IPC deal with right of private defence of a person involved
D     in commission of offences under the IPC. Section 96 of IPC says
      that nothing is an offence, which is done in the exercise of the
      right of private defence. Section 97 of IPC provides that a right
      of private defence extends not only to the defence of one’s own
      body against any offence affecting the human body but also to
      defend the body of any other person. The right also embraces
E     the protection of property, whether one’s own or another person’s,
      against certain specified offences, namely, theft, robbery, mischief
      and criminal trespass. For one thing, the right does not arise if
      there is time to have recourse to the protection of the public
      authorities, and for another, it does not extend to the infliction of
F     more harm than is necessary for the purpose of defence. Another
      limitation is that when death is caused, the person exercising the
      right must be under reasonable apprehension of death, or grievous
      hurt, to himself or to those whom he is protecting; and in the
      case of property, the danger to it must be of the kinds specified
      in Section 103. [Paras 30, 32-33] [669-D-H]
G
            3.1 The contents of the FIR coupled with the appellant’s
      evidence (DW-1) showed that there was a variation in the
      prosecution version and the appellant’s version on the manner
      in which the incident in question occurred. However, the version
      of the appellant on the manner in which the incident occurred is
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      SUKUMARAN v. STATE REP. BY THE INSPECTOR                         663
                     OF POLICE

accepted. It was established on the basis of the factual scenario      A
on the spot that the appellant had reasonable grounds for
apprehending that either death or grievous hurt would be caused
to him or to his driver (A-2). The incident occurred in the early
morning, the appellant was patrolling in the forest in official
vehicle with his driver (A-2) since overnight. By virtue of his
                                                                       B
post, he was given Jeep and the gun for the protection of forest
area, forest produce, his own body and the body of others on
duty with him. The deceased party having seen that the appellant
was chasing their lorry made attempt to flee from the place in the
first instance but after some time stopped and got down from
their lorry and started pelting stones on the appellant’s jeep which   C
suffered damage. The deceased party not only was pelting the
stones but also shouting “fire them”. The appellant, in such
scenario, had rightly formed a reasonable apprehension that either
death or grievous hurt may cause to him or/and to his driver (A-
2). In these circumstances, it was enough for the appellant to
                                                                       D
also react in his self defence against the deceased party and fire
from his gun towards the deceased party to save him and his
driver (A-2). There was no motive attributed to the appellant
towards any member of the deceased party. Having seen the
incident in this perspective, firing the gun shot by the appellant
towards the deceased party cannot be said to be in any way             E
unjustified. In fact, the appellant while firing the gun shot did
not target any particular person out of four as such but fired to
resist their aggression towards him and his driver (A2). If the
appellant had not fired, the deceased party having said “fire them”
could either use their gun in shooting the appellant or A-2 or
                                                                       F
would have run away from the spot to avoid their arrest.
[Paras 37, 38, 40, 44] [673-B-F; 674-B-D; 675-B-D]
       3.2 The prosecution having failed to prove their case could
still prove that the appellant was liable to be convicted in the
light of defence version. The High Court, therefore, could have
gone into the question as to whether the appellant had no right of     G
private defence against the deceased party on such facts or
whether he exceeded his right. The prosecution even failed to
prove this fact while cross examining the appellant. Nothing was
solicited from the appellant in his cross-examination on these
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664            SUPREME COURT REPORTS                          [2019] 4 S.C.R.


A     two issues. It was a case where the appellant had a reasonable
      apprehension that the deceased party may cause him and A-2
      death or grievous hurt either by pelting stones or by use of gun
      shot or by physical violence jointly. In these circumstances, the
      appellant being a forest ranger on duty was entitled to use his
      gun against the deceased party. [Paras 45, 46] [675-D-G]
B
            Amjad Khan v. Haji Mohammad Khan AIR 1952 SC
            165 : [1952] SCR 567 ; Darshan Singh v. State of
            Punjab & Anr. (2010) 2 SCC 333 : [2010] 1 SCR 642
            – relied on.
C                              Case Law Reference
              [1952] SCR 567              relied on             Para 33
              [2010] 1 SCR 642            relied on             Para 34


D           CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
      No. 5 of 2009.
            From the Judgment and Order dated 12.06.2008 by the High Court
      of Judicature at Madras in Crl. A. No. 513 of 2006.
             A. Raja Rajan, Sabarish Subramanian, Y. William Vinoth Kumar,
E     R. Pandiarajan, Deepak Anand, Advs. for the Appellant.
           Balaji Srinivasan, AAG, B. Vinodh Kanna, Ms. S. Valarmathi,
      Ms. Pallavi Sengupta, M. Yogesh Kanna, Advs. for the Respondent.
            The Judgment of the Court was delivered by
F            ABHAY MANOHAR SAPRE, J. 1. This appeal is filed against
      the final judgment and order dated 12.06.2008 passed by the High Court
      of Judicature at Madras in Criminal Appeal No.513 of 2006 whereby
      the Division Bench of the High Court partly allowed the appeal filed by
      the appellant herein.
G           2. In order to appreciate the issues involved in this appeal, it is
      necessary to set out the facts infra.
            3. The appellant herein (A-1) along with co-accused-
      Chinnakolandai (A-2) were tried for the commission of the offences
      punishable under Section 302 read with Sections 109 and 203 of the
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       SUKUMARAN v. STATE REP. BY THE INSPECTOR                                665
         OF POLICE [ABHAY MANOHAR SAPRE, J.]

Indian Penal Code, 1860(hereinafter referred to as “IPC”), Section             A
36-A and E of the Tamil Nadu Forest Act, 1882 and Section 3 read with
Section 25 (1-B) (a) of the Arms Act in the Court of Additional Sessions
Judge, Dharmapuri in Session Case No.342/2004.
       4. By Judgment/order dated 17.05.2006, the Additional Sessions
Judge convicted the appellant herein(A-1) for the offences punishable          B
under Sections 302 and 203 IPC, Section 36-A and E of the Tamil Nadu
Forest Act and Section 3 read with Section 25(1-B)(a) of the Arms Act
and sentenced him to undergo life imprisonment with a fine of Rs.2000/-
and in default of payment of fine to further undergo rigorous imprisonment
for three months under Section 302 IPC, to undergo rigorous
imprisonment for two years with a fine of Rs.500/-, in default of payment      C
of fine to undergo further simple imprisonment for three months under
Section 203 IPC, to undergo rigorous imprisonment for two years with
fine of Rs.7,500/-, in default of payment of fine, to undergo further simple
imprisonment for three months under Section 36-A and E of the Tamil
Nadu Forest Act, to undergo imprisonment for two years with a fine of          D
Rs.500/- in default of payment of fine to further undergo simple
imprisonment for three months under Section 3 read with Section
25 (1-B)(a) of the Arms Act.
       5. All the awarded sentences were to run concurrently. So far as
Co-accused-Chinnakolandai (A-2) is concerned, he was acquitted from            E
all the charges.
      6. The appellant (A-1) felt aggrieved by the order of conviction
and sentence passed against him and filed criminal appeal in the High
Court of Judicature at Madras. So far as the order acquitting co-accused-
Chinnakonlandai (A-2) was concerned, the State did not file any appeal         F
against that part of the order and hence the order of acquittal of
co-accused-Chinnakolandai (A-2) became final.
       7. The High Court, by the impugned order, allowed the appeal in
part and while setting aside the conviction and sentence imposed on the
appellant under Section 302 IPC altered it to Section 304 Part-II IPC          G
and sentenced him to undergo rigorous imprisonment for five years with
a fine amount of Rs.2000/- and in default of payment of fine, to further
undergo rigorous imprisonment for three months. The appellant was,
however, acquitted from the offence punishable under Section 36-A and
E of the Tamil Nadu Forest Act and was also acquitted from the offence
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666             SUPREME COURT REPORTS                            [2019] 4 S.C.R.


A     punishable under Section 25 (1-B) (a) of the Arms Act. However, the
      High Court did not consider the case of the appellant so far as his
      conviction under Section 203 IPC is concerned. The State has not filed
      any appeal against that part of the order by which the appellant was
      acquitted from the charges as detailed above.
B           8. So, the short question, which arises for consideration in this
      appeal, is whether the High Court was justified in convicting the appellant
      under Section 304 Part-II IPC and was, therefore, justified in awarding
      rigorous imprisonment for five years.
             9. In other words, the question to be considered in this appeal is
C     whether the prosecution was able to prove beyond reasonable doubt
      that the appellant was guilty for commission of the offence punishable
      under Section 304 part II of IPC.
            10. In order to answer this question, it is necessary to take note of
      the prosecution case in brief infra.
D            11. The appellant (A-1) was working as Forest Range Officer in
      State Services. He was posted in Dharmapuri forest area in the State of
      Tamil Nadu.
             12. According to the prosecution, on 05.06.1988 at around
      6.30 a.m., the appellant while on duty was going in his official jeep bearing
E     Registration No. TNC 9206 along with co-accused(A-2)- driver of his
      Jeep to Pennagaram Main Road from Kattampatti Road. At that time,
      the appellant noticed that four persons, namely, Basha-the deceased,
      Chan Basha (PW-1), Ganesha (PW-2) and one cleaner were going in a
      lorry bearing No. ADA 4869. On seeing the lorry, the appellant chased
F     it upto some distance. However, Basha-the driver of the lorry drove it
      for some distance and then stopped, got down from the lorry and started
      running with his associates. The appellant, at that time, fired a gun shot
      from his DBL-Gun, which hit Basha s/o Ameer causing his death.
             13. On these allegations, the prosecution prayed that the appellant
      is liable to be prosecuted for an offence punishable under Section 302
G
      IPC.
            14. It is also the case of the prosecution that the lorry, which the
      deceased - Basha was driving, was empty. However, the appellant, after
      he shot Basha from his gun which hit on his back, got down from his
      jeep and then loaded 64 billets of sandal woods weighing 276 KG and
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       SUKUMARAN v. STATE REP. BY THE INSPECTOR                               667
         OF POLICE [ABHAY MANOHAR SAPRE, J.]

also kept one SBML Gun in the lorry with a view to show that the              A
deceased party was smuggling sandal woods from the forest area without
holding a valid permit/license. It is also the case of prosecution that the
appellant with the help of co-accused (A-2)-Driver then reached to
deceased party, caught hold of PW-1 and PW-2 and brought them to the
police station. Another person Jaheer, however, managed to flee from
                                                                              B
the place.
       15. It is also the case of the prosecution that the appellant
intentionally gave the false information by lodging a complaint in the
Police Station, Pennagaram on 05.06.1988 stating therein that he fired
the gun shot to Basha in his right of private defence.
                                                                              C
      16. On these allegations, the prosecution prayed that the appellant
be also prosecuted for an offence punishable under Section 203 IPC.
The investigation was accordingly carried out. The statements of the
witnesses were recorded, material items were seized and later the
appellant and co-accused(A-2) were apprehended. The charge-sheet
was accordingly filed against them and the case was committed to the          D
Court of Additional Sessions Judge.
       17. The prosecution, in support of their case, examined 16 witnesses
and filed 23 documents. 15 MOs were marked. The appellant (A-1)
appeared as DW-1 to prove his case. His statement under Section 313
of the Criminal Procedure Code was also recorded.                             E

       18. The Additional Sessions Judge convicted the appellant (A-1)
under Sections 302, 203 IPC and Section 36-A and E of Tamil Nadu
Forest Act read with Sections 3 and 25 (1-B) (a) of the Arms Act. The
appellant was accordingly awarded sentence as mentioned above. So
far as co-accused (A-2) is concerned, he was acquitted from all the           F
charges.
       19. The appellant felt aggrieved and filed appeal in the High Court
of Madras. The High Court, by impugned order, set aside the conviction
and sentence imposed on the appellant herein under Section 302 IPC
and altered it to Section 304 Part II IPC and accordingly awarded him 5       G
years’ RI. As mentioned above, the appellant was acquitted from all
other charges. However, the High Court did not consider the legality
and correctness of the conviction under Section 203 IPC, though impugned
by the appellant in his appeal.
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668             SUPREME COURT REPORTS                            [2019] 4 S.C.R.


A            20. It is against this order, the appellant (accused-A-1) has felt
      aggrieved and filed the present appeal by way of special leave in this
      Court.
             21. Heard Mr. A. Raja Rajan, learned counsel for the appellant
      (accused) and Mr. Balaji Srinivasan, learned counsel for the respondent-
B     State.
             22. Having heard the learned counsel for the parties and on perusal
      of the record of the case, we are inclined to allow the appeal, set aside
      the impugned order and acquit the appellant from all the charges for the
      reasons stated infra.
C            23. We find that the prosecution in order to prove their case against
      the appellant had examined 16 witnesses. We also find that out of 16
      witnesses, the prosecution examined 2 witnesses, namely, (PW-1-John
      Basha and PW-2 - Ganesh) as eyewitnesses to prove the incident and
      the manner in which it occurred. Indeed, the two Courts below also
D     relied on their evidence for sustaining the appellant’s conviction.
             24. It is not in dispute, as is clear from the perusal of Paras 18 and
      19 of the judgment of the Additional Sessions Judge dated 17.05.2006
      and also para 2(a) to (d) of the impugned order that both the eye witnesses,
      i.e., PW-1, PW-2 and also PW-3 and PW-7 were declared hostile.
E            25. In our considered opinion, when both the eye witnesses–PWs
      1 and 2 and also other two more witnesses, namely, PW-3 and PW-7
      were declared hostile, there was no evidence to prove as to how and in
      what manner, the incident in question had occurred. In other words,
      apart from the evidence of PW-1 and PW-2, the prosecution had not led
F     any evidence to prove the incident and the manner in which the alleged
      incident had occurred .
              26. Even on perusal of the evidence of PW-1, PW-2, PW-3 and
      PW-7 to the extent it is permissible in law because these four witnesses
      had turned hostile coupled with perusal of the evidence of remaining
      witnesses with a view to find out as to whether the prosecution was able
G
      to prove their case against the appellant beyond reasonable doubt, we
      find it difficult to hold in favour of the prosecution that the prosecution
      was successful in proving their case as was required to be proved in law
      against the accused(appellant herein).

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       SUKUMARAN v. STATE REP. BY THE INSPECTOR                                669
         OF POLICE [ABHAY MANOHAR SAPRE, J.]

       27. Indeed, perusal of the evidence of remaining witnesses, who         A
were not declared hostile, clearly shows that their evidence was not on
the question as to how and in what manner, the incident occurred. We
find their evidence to be on the issues, such as proving of seizer, post-
mortem report, ballistic report etc. etc.
       28. In the light of the foregoing discussion, we are of the view        B
that the prosecution was not able to prove the manner in which the
incident occurred as alleged by them in their charge sheet. In this view
of the matter, the appellant was entitled to be acquitted from the charges
for want of any evidence against him.
      29. Be that as it may, since the appellant, in order to prove his        C
defence, examined himself as DW-1 after seeking permission under
Section 315 of the Code of Criminal Procedure, it is necessary to examine
the question as to whether the appellant was able to prove his defence.
      30. The appellant, in substance, took a defence that he fired a gun
shot on the deceased party in his right of private defence.                    D
       31. Before we examine this question, it is apposite to take note of
the law relating to a right of private defence.
       32. Sections 96 to 106 of IPC deal with right of private defence of
a person involved in commission of offences under the IPC. Section 96
of IPC says that nothing is an offence, which is done in the exercise of       E
the right of private defence.
       33. Section 97 of IPC provides that a right of private defence
extends not only to the defence of one’s own body against any offence
affecting the human body but also to defend the body of any other person.
The right also embraces the protection of property, whether one’s own          F
or another person’s, against certain specified offences, namely, theft,
robbery, mischief and criminal trespass. The limitations on this right and
its scope are set out in the sections which follow. For one thing, the right
does not arise if there is time to have recourse to the protection of the
public authorities, and for another, it does not extend to the infliction of
                                                                               G
more harm than is necessary for the purpose of defence. Another
limitation is that when death is caused, the person exercising the right
must be under reasonable apprehension of death, or grievous hurt, to
himself or to those whom he is protecting; and in the case of property,
the danger to it must be of the kinds specified in Section 103. The scope
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670            SUPREME COURT REPORTS                          [2019] 4 S.C.R.


A     of the right is further explained in Sections 102 and 105 of the IPC.(See
      observations of Justice Vivian Bose in Amjad Khan vs. Haji
      Mohammad Khan, AIR 1952 SC 165)
            34. This Court also examined this question in the case of Darshan
      Singh vs. State of Punjab & Anr. (2010) 2 SCC 333 and laid down the
B     following 10 principles after analyzing Sections 96 to 106 IPC which
      read as under:
            “ (i) Self-preservation is the basic human instinct and is
            duly recognised by the criminal jurisprudence of all civilised
            countries. All free, democratic and civilised countries
C           recognise the right of private defence within certain
            reasonable limits.
            (ii) The right of private defence is available only to one
            who is suddenly confronted with the necessity of averting
            an impending danger and not of self-creation.
D           (iii) A mere reasonable apprehension is enough to put the
            right of self-defence into operation. In other words, it is
            not necessary that there should be an actual commission of
            the offence in order to give rise to the right of private
            defence. It is enough if the accused apprehended that such
E           an offence is contemplated and it is likely to be committed
            if the right of private defence is not exercised.
            (iv) The right of private defence commences as soon as a
            reasonable apprehension arises and it is coterminous with
            the duration of such apprehension.
F           (v) It is unrealistic to expect a person under assault to
            modulate his defence step by step with any arithmetical
            exactitude.
            (vi) In private defence the force used by the accused ought
            not to be wholly disproportionate or much greater than
G           necessary for protection of the person or property.
            (vii) It is well settled that even if the accused does not plead
            self-defence, it is open to consider such a plea if the same
            arises from the material on record.

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       SUKUMARAN v. STATE REP. BY THE INSPECTOR                                671
         OF POLICE [ABHAY MANOHAR SAPRE, J.]

      (viii) The accused need not prove the existence of the right             A
      of private defence beyond reasonable doubt.
      (ix) The Penal Code confers the right of private defence
      only when that unlawful or wrongful act is an offence.
      (x) A person who is in imminent and reasonable danger of
      losing his life or limb may in exercise of self-defence inflict          B
      any harm even extending to death on his assailant either
      when the assault is attempted or directly threatened.”
       35. In the light of the principle of law laid down by this Court in
the aforementioned two cases, we have to examine the question as to
whether the appellant (A-1) was justified in exercising his right of private   C
defence when he fired a gun shot on the deceased party.
      36. At this stage, it is apposite to reproduce the FIR (Ex-P-9),
which was lodged by the appellant immediately after the incident with
Sub-inspector, Police Station Pennagaram. It reads as under:
                                                                               D
                            “EXHIBIT P 9
      EXPRESS FIRST INFORMATION REPORT
                                 B 785612
        (FIRST INFORMATION REPORT IN RESPECT OF
         OFFENCE FOR WHICH AN ARREST COULD BE                                  E
          MADE BY THE OFFICER INCHARGE OF THE
       POLICE STATION WITH OUT THE ORDER OF THE
        COURT UNDER SECTION 184 OF THE CRIMINAL
                        PROCEDURE CODE)
      Crime No. 108/88                                                         F
      Police station: Pennagaram
      Section and Act: 302 IPC
      Circle: Pennagaram
      District Dharmapuri
                                                                               G
      I received copy of the complaint lodged by me free of cost.
      Signature/
      5.6.88


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672     SUPREME COURT REPORTS                      [2019] 4 S.C.R.


A     Submitted
      Today the 5.6.88, Sunday at about 11.00 o’clock in the
      morning, Mr. S. Sukumar, Dharmapuri forest ranger
      appeared in the police station and lodged the complaint.
      The details of the complaint is as under:
B     S. Sukumaran, Forest ranger, Dharmapuri
      To
      Sub inspector of police, Police Station,
      Pennagaram
           Application number 1/88 dt. 5.6.88, Sir, On the basis of
C     the information about the smuggling of sandal wood logs, I
      left Dharmapuri in a jeep along with my driver
      Mr. Chinnakulanthai on the evening at about 6.00 o’clock
      of 4.6.1988 in a jeep with registration number TND 2296
      and reached Pennagaram. Through out the night we
      inspected Nazanoor area. We completed the inspection at
D
      about 5.00 o’clock in the morning and left the place. Near
      Vanathipaty, that is we reached near Kattampatty road,
      Kattampatty junction road, we saw a lorry coming in the
      Kattampatty road. We stopped the lorry signaled the lorry
      to stop. Driver of the lorry turned the lorry to left. Engine
E     of the lorry stopped We started to move towards the lorry.
      Persons in the lorry got down and started attacking us with
      stones. Glass pane of the lorry was broken. Immediately,
      they shouted that “you shoot them”. It was about 6.30
      ‘o’clock in the morning. Then the deceased person has
      taken out a gun. I started early and I fired a gun shot one
F
      round in self defense. He dropped the gun and fell down.
      Thereafter, I apprehended other two persons 1. John Basha
      and 2. Ganesan. Cleaner Zaheer escaped. When we went
      to see the above mentioned driver we found him dead due
      gun shot wounds. I am now handing over the country made
G     gun which was in his possession and the gun with which I
      fired DBG 12 load (?) AB 8202321, empty cartridge and
      two other cartridges to you. I request you to take action on
      this. Sd. (S. Sukumaran), 5.6.88, Forest ranger, Darmapuri.


H
       SUKUMARAN v. STATE REP. BY THE INSPECTOR                                  673
         OF POLICE [ABHAY MANOHAR SAPRE, J.]

       On the basis of the above mentioned I registered the                      A
       complaint as crime number 18/88 of the police station under
       section 302 of the Indian Penal Code and prepared the
       express FIR and sent to the senior officer.
       Sd.
       5.6.88"                                                                   B

       37. Reading the contents of the FIR (Ex-P-9) coupled with the
appellant’s evidence (DW-1), we find that firstly, there is a variation in
the prosecution version and the appellant’s version on the manner in
which the incident in question occurred. However, having perused the
FIR (Ex.P-9) lodged by the appellant and his evidence as DW-1, we are            C
inclined to accept the version of the appellant on the manner in which
the incident occurred.
        38. In other words, having regard to the manner in which the
incident occurred, the appellant, in our view, was entitled to exercise his
right of private defence against the deceased party inasmuch as it was           D
established on the basis of the factual scenario on the spot that the
appellant had reasonable grounds for apprehending that either death or
grievous hurt would be caused to him or to his driver (A-2). It is clear
from the following facts and the reasoning detailed infra.
      39. First, when the incident occurred in the early morning at around       E
6.30 a.m., the appellant was patrolling in the forest in official vehicle
with his driver (A-2) since overnight; Second, by virtue of his post, he
was given Jeep and the gun for the protection of forest area, forest
produce, his own body and the body of others on duty with him; Third,
the deceased party having seen that the appellant was chasing their              F
lorry made attempt to flee from the place in the first instance but after
some time stopped and got down from their lorry and started pelting
stones on the appellant’s jeep which suffered damage; Fourth, the
deceased party consisted of four persons with weapon-Gun with them
whereas the appellant and his driver (A-2) were two.
                                                                                 G
       40. Fifth, there is no evidence to show as to why the deceased
party was roaming in the forest area in their lorry in such early hours.
Sixth, it is not in dispute that the forest in question is known for producing
sandal woods and sandal wood being an expensive commodity for sale
in the market, the people were indulging in its smuggling at a large scale
                                                                                 H
674             SUPREME COURT REPORTS                           [2019] 4 S.C.R.


A     in the forest area; Seventh, the appellant had noticed that the deceased
      party was trying to become aggressor in an encounter between him and
      the deceased party because the deceased party had started pelting stones
      on them so that the appellant is not able to apprehend them. Eighth, the
      deceased party not only was pelting the stones but also shouting “fire
      them”. Ninth, the appellant, in such scenario, had rightly formed a
B
      reasonable apprehension that either death or grievous hurt may cause to
      him or/and to his driver (A-2). Tenth, in these circumstances, it was
      enough for the appellant to also react in his self defence against the
      deceased party and fire from his gun towards the deceased party to
      save him and his driver (A-2); Eleventh, the appellant having seen the
C     suspicious moments of the deceased party in the forest area rightly formed
      an opinion that the deceased party was moving around in the forest to
      smuggle the sandal woods. The appellant was, therefore, entitled to chase
      the deceased party and apprehend them for being prosecuted for
      commission of offence punishable under the forest laws. Indeed, that
      was his duty; Twelfth, there was no motive attributed to the appellant
D
      towards any member of the deceased party; Thirteenth, the appellant
      and A-2 rightly caught hold of PWs 1 and 2 and brought them to the
      police station; and lastly, the appellant promptly filed a complaint(Ex.P-
      8/9) in the police station narrating therein the entire incident and the
      manner in which it occurred and also surrendered the gun recovered
E     from the deceased party and his own gun.
              41. One of the reasons which persuaded the High Court to form
      an opinion against the appellant was that the bullet fired by the appellant
      hit the deceased in his back. It is on this basis, the High Court concluded
      that there was no justification on the part of the appellant to exercise his
F     right of private defence.
             42. We do not agree. This finding of the High Court was based
      on the prosecution story which we have held that the prosecution failed
      to prove for want of evidence. In any case, in our view, the question as
      to whether the right of private defence is available and, if so, whether it
G     is rightly exercised or exceeded, the same is required to be examined
      keeping in view the entire background facts and circumstances in which
      the incident occurred resulting in firing the gun shot.
            43. The High Court, in our view, failed to appreciate that firstly,
      the appellant had every reason to believe that due to suspicious moment
H     of the deceased party in the forest, they were trying to smuggle the
       SUKUMARAN v. STATE REP. BY THE INSPECTOR                                675
         OF POLICE [ABHAY MANOHAR SAPRE, J.]

sandal wood from the forest. Secondly, the deceased party was aggressor        A
because, as held above, they first pelted the stones and damaged the
appellant’s vehicle shouting “fire them”. Thirdly, the appellant’s duty
was to apprehend the culprits who were involved in the activity of
smuggling sandalwoods and at the same time to protect himself and his
driver in case of any eventuality arising while apprehending the culprits.
                                                                               B
       44. Having seen the incident in this perspective, we are of the
opinion that firing the gun shot by the appellant towards the deceased
party cannot be said to be in any way unjustified. In fact, the appellant
while firing the gun shot did not target any particular person out of four
as such but fired to resist their aggression towards him and his driver
(A2). If the appellant had not fired, the deceased party having said “fire     C
them” could either use their gun in shooting the appellant or A-2 or
would have run away from the spot to avoid their arrest. It is not in
dispute that one gun was seized from the deceased party on their arrest
which was deposited by the appellant along with his own gun in the
police station while registering the FIR (EX.P-9).                             D
       45. In our considered opinion, the prosecution having failed to
prove their case could still prove that the appellant was liable to be
convicted in the light of defence version. The High Court, therefore,
could have gone into the question as to whether the appellant had no
right of private defence against the deceased party on such facts or           E
whether he exceeded his right. The prosecution even failed to prove this
fact while cross examining the appellant. We find that nothing could be
solicited from the appellant in his cross-examination on these two issues.
       46. In the light of foregoing discussion, we are of the considered
opinion that the case of the appellant satisfies the test laid down in the     F
case of Amjad Khan (supra) and also satisfied the test laid down in
Clauses (ii), (iii), (iv), (v) and (viii) of Darshan Singh (supra). In other
words, it was a case where the appellant had a reasonable apprehension
that the deceased party may cause him and A-2 death or grievous hurt
either by pelting stones or by use of gun shot or by physical violence
jointly. In these circumstances, the appellant being a forest ranger on        G
duty was entitled to use his gun against the deceased party.
      47. In view of the foregoing discussion, we are of the considered
opinion that the Additional Sessions Judge was not justified in convicting
the appellant for an offence of murder of Basha under Section 302 IPC.
                                                                               H
676             SUPREME COURT REPORTS                           [2019] 4 S.C.R.


A     Similarly, the High Court was also not justified in convicting the appellant
      for an offence punishable under Section 304 Part II IPC. In other words,
      in our view, the appellant was entitled for an acquittal along with A-2
      from the charges framed against him.
             48. So far as the appellant’s conviction under Section 203 IPC is
B     concerned, the High Court did not deal with this question in the impugned
      order though it was challenged by the appellant in his appeal. Having
      examined this question, we are of the view that the conviction under
      Section 203 IPC against the appellant is also not legally sustainable for
      want of any evidence adduced by the prosecution.
C             49. As a matter of fact, once it is held that the prosecution has
      failed to prove their main case, the offence under Section 203 IPC also
      must fail. It is also for the reason because we have held that the appellant
      was justified in taking a plea of self defence against the deceased party
      which he was also able to prove with the aid of evidence. In any event,
      in the absence of any evidence as to from where the appellant got 64
D     billets of sandal woods for loading in the lorry of the deceased party and
      the gun, an offence under Section 203 IPC cannot be held as made out
      against the appellant.
            50. In view of the foregoing discussion, the appeal succeeds and
      is accordingly allowed. The impugned order is set aside. As a
E     consequence, the appellant is acquitted from all the charges. His bail
      bonds are discharged and he is set free.


      Devika Gujral                                                 Appeal allowed.

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