Holding

The right of private defence of the body under Section 100(2) IPC extends to causing death, and the accused’s act is protected, rendering the conviction under Section 304 Part I IPC and Section 27 Arms Act invalid.

Summary

Wassan Singh and two co‑accused attacked a gathering at Hazara Singh's house; during the fray Singh was injured multiple times and, fearing grievous hurt, fired his gun, inadvertently killing an innocent woman, Bholan. He was convicted by the Sessions Court under Section 304 Part I IPC and under Section 27 of the Arms Act, a conviction that was upheld by the High Court. On appeal, the Supreme Court examined whether Singh's act fell within the right of private defence of the body under Section 100(2) IPC, which extends to causing death when the assailant reasonably apprehends grievous hurt. The Court held that the subjective apprehension of grievous injury justified the use of lethal force and that Section 301 IPC does not apply because the act was not culpable homicide in the first place. Consequently, the conviction under Section 304 Part I IPC and the Arms Act provision was set aside and the appeal was allowed, with Singh’s bail discharged.

Issues considered

The applicability of the right of private defence of the body under Section 100(2) IPC to the accused's lethal response.
Whether Section 301 IPC applies when death of an innocent person occurs in the exercise of private defence.
Whether the conviction under Section 304 Part I IPC is sustainable in the facts of the case.
Whether the conviction under Section 27 of the Arms Act can stand when the firearm was used in private defence.

Legislation cited

Arms Acts. 27
Indian Penal Code, 1860s. 100, s. 101, s. 301, s. 302, s. 304(Part I), s. 307, s. 324, s. 325, s. 34, s. 99

Subjects

private defenceSection 100 IPCright to cause deathculpable homicideSection 304 IPCSection 27 Arms Actsubjective testreasonable apprehensionself‑defence

Judgment

-<..

WASSAN SINGH A
v.
THE STATE OF PUNJAB

NOVEMBER 28, 1995

[M.K. MUKHERJEE AND S.B. MAJMUDAR, JJ.) B

Criminal Law :

Indian Penal Code, 1860 :
c
Section 100 secondly and 99-R.ight of private defence of body-Wizen
extends to even causing death-Accused must have a reasonable. apprehen-
sion in his mind that he will be subjected to grievous !nut-Must be judged
from the subjective point of view of the accused and cannot be subjected to
any microscopic and pedantic scrutiny.
D
Sections 301and10(}-Exercise of 1ight of private defence causing death
of an innocent person instead of the intended persorr-Held: Section 301 will
have no operation and the accused will remain protected under Section JOO.

The appellant was convicted under section 304 Part I, Indian Penal
0
Code, 1860 and sentenced to undergo rigorous imprisonment for 10 years.
E

According to the prosecution, the appellant was the partyman of C
and P, the two accused. B and H were real brothers and the deceased was
.the wife of H and J was the nephew of B and H. P was the cousin of H. B
was to celebrate Lohri festival in connection with the birth of his grand- F
child. B went to J to request him to join the celebration of Lohri festival
at his house. The next day J came to the House of B and remained there
till the evening on the occasion of the birth of his grand-child. In the
evening H, his wife and B came out of the house along with J to see the
latter off. They were standing in front of the gate of his (H's) house. At
that time electric light which was fitted at his house, was illu~inating in G
which a human being could be identified. J was going to connect his tractor

-· with his trolley. Meanwhile, P accused armed with his D.B.B.L. gun, W
appellant armed with a single barrelled gun and C accused armed with
'gandasa' came to the house of H and B and C said that they were going
to teach H and others a lesson for parking the tractor trolley in the lane. H
703
704 SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A P opened the attack by firing from his D.B.B.L. gun towards ff.-
However, the fire missed the target as he (H) had knelt down to save
himself and the fire passed over his head. Thereafter appellant fired from
his single barrelled gun and the shot hit the deceased near her pelvic
region. On receipt of this injury, she fell down on the ground. Thereafter
C dealt a blow on the head of B from its sharp side. Meanwhile P dealt
B blow with the butt of his gun on the left hand of J and another blow from
the said butt on his right ear. Then C dealt a blow on the head of B from
its reverse side. Thereupon H, B and J raised an alarm and on this, the
accused decamped with their weapons. Before that, B and H also caused
injuries on the person of appellant in their self-defence. The deceased 'B'
C was placed in a car and she died on the way to the hospital and a First
Information Report was lodged, and a post-mortem was held.

On the basis of the evidence adduced on behalf of the prosecution,
the Sessions Judge came to conclusion that the charges levelled against·
D the appellant were fully established. However, the appellant was held guilty
of an offence under Section 304 Part I, IPC. His conviction and sentence
under Section 27 of the Arms Act were also maintained.

In the appeal before this Court, on behalf of the appellant it was
contended that he had a right of private defence of body; that he had the
E right to cause fatal injury by the use of his firearm.

Allowing the appeal, this Court

HELD 1.1. It is obvious that if an accused with an intention to kill
his victim fires a shot at him which misses the target and hits any other
F innocent person fatally he would remain guilty of an offence of murder but
if the accused had no such intention and was protected by right of private
defence under the situation and circumstances in which it could extend to
even causing death of assailant as laid down by Section 100 and if in
exercise of that right of private defence the blow fatally falls on an innocent
G person the action would still remain protected under Section 100 of the
IPC. [713-D-E]

1.2. For applicability of Section 3q1, the act must amount to culpable
homicide in the first place. If the act is not culpable at all, then even if it
results into homicide of an innocent person, in view of Section 100 IPC as
~ in the present case, Section 301 will have no operation. [713-H; 714-A]
WASSAN SINGHv. STATE 705

2.1. The appellant had received as may as nine injuries out of which A
first two injuries were no a very vital part, namely, on his head and injury
No. 1 was an incised wound which was caused by a sharp-edged weapon.
Under these circumstances if the appellant fired one shot from his gun in
his self-defence it could not be said that he had exceeded the right of
private defence as the nature of assault by the complainant party which B
left him with the aforesaid injuries certainly could be said to have caused
a reasonable apprehension in his mind that grievous hurt would otherwise
be the consequence of such an assault. [711-G-H]

2.2. It is not the case of the prosecution that any of the restrictions
mentioned in Section 99 of the Indian Penal Code, 1860 can be invoked by C
the prosecution against the appellant. Once that is so, clause 'secondly' of
Section 100 of the l.P.C. would squarely get attracted. It is true that the
first injury caused on his head had fortunately not resulted into a fracture
but when it was caused with a sharp cutting instrument on the vital part
of his body, namely, right side o~ head, it cannot be gainsaid that at least D
a reasonable apprehension would arise in his mind at the spur of the
moment that if he does not retaliate by using his weapon, namely, the gun
with which he was armed he would certainly suffer at least a grievous hurt
as a consequence of the assault by the complainant party. Under these
circumstances the right of private defence of body available to the appel- E
lant would extend to even causing death. [712-F-H; 713-A-B]

2.3. While judging the nature of apprehension which an accused can
reasonable entertain in such circumstances requiring him to act on the
spur of moment when he finds himself assaulted, by number of persons,
F
it is difficult to judge the action of the accused from the cool atmosphere
of the Court room. Such situations have to be judged in the light of what
happens on the spur of the moment on spot and keeping in view the normal
course of human conduct as to how a person would react under such
circumstances in a sudden manner with an instinct of self- preservation.
Such situations have to be judged from the subjective point of view of the G
accused concerned who is confronted with such a situation on the spot and
cannot be subjected to any microscopic and pedantic scrutiny. [714-A-C]

Mohd. Ramzani v. State of Delhi, (1980) supp. SCC 215 and Dea
Narain v. The State of U.P., [1973) 1 SCC 347, referred to. H
706 SUPREME COURT REPORTS (1995] SUPP. 5 S.C.R.

A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
242of1983.

From the Judgment and Order dated 9.4.82 of the Punjab & Haryana
High Court in Crl. A. No. 637-DB of 1981.

B R.S. Sodhi and Ms. S. Janani for the Appellant.

Ranbir Y adav for R.S. Suri for the Respondents.

The Judgment of the Court was delivered by :

C S.B. MAJMUDAR, J.

Appellant, W assan Singh has brought in challenge his conviction and
sentence as imposed upon him by the High Court of Punjab & Haryana at
Chandigarh in Criminal Appeal No. 637-DB of 1981. While allowing his
appeal against conviction under Section 302 Indian Penal Code (in short
D 'IPC') the High Court has convicted him for the lesser offence under
Section 304 Part I, IPC and sentenced him to undergo rigorous imprison-
ment for 10 years. The appellant's grievance is that he is not liable to be
convicted even under the said provision.

E In order to appreciate the grievance of the appellant a few relevant
facts leading to this appeal deserve to be noted at the outset.

BACKGROUND FACTS :

The appellant who was accused No. 1 along with two other accused
p Piara Singh and Charan Singh were charged with offences under Sections
302, 307, 325, 324, 323 read with Section 34 of the IPC on the allegation
that on 11th January 1981 at about 6.00 p.m. in the area of village Nizam-
wala, in furtherance of their common intention which was to commit the
murder of one lady Smt. Bholan, the appellant did commit murder of the
G aforesaid Mst. Bholan by intentionally causing her death whereas the other
two accused committed offences under Section 302 read with Section 34
of the IPC. Accused Piara Singh was also charged with an offence under
Section 307 IPC for having fired a gun shot at one Hazara Singh with such
intention and under such circumstances that if by that act he had caused
the death of Hazara Singh he would have been guilty of murder while the
H appellant was charged with an offence under Section 307 read with Section
WASSAN SINGHv. STATE [S.B. MAJMUDAR, J.] 707

34 IPC. It was also alleged that at the same time and place in furtherance A
of their common intention accused Charan Singh voluntarily caused hurt
to Hazara Singh by means of a 'gandasa' which is an instrument of cutting,
and thereby committed an offence punishable under Section 324 IPC
whereas appellant and Piara Singh accused were alleged to have committed
offences punishable under Section 324 read with Section 34 of the IPC. B
They were similarly charged for an offence for having caused hurt to one
Bachan Singh by means of a 'gandasa', which is an instrument of cutting.
Appellant was also charged along with other co-accused for having com-
mitted an offence under Section 325 read with Section 34 of the IPC for
having voluntarily caused grievous hurt to one Jagir Singh. Appellant was
lastly charged with an offence under Section 27 of the Arms Act on the c
allegation that on the same date, time and place he had in his possession
a single barreled 12 bore gun with intent to use the same for an unlawful
purpose, that is, to commit the murder of Mst. Bholan and that he actually
used it for the above-said purpose thereby committing an offence under
Section 325 of the IPC. D
The prosecution story briefly is to the effect that accused Charan
Singh is the sister's son of Piara Singh accused and the appellant who
belongs to village Baghewala, is their partyman. That prosecution wit-
nesses, Bachan Singh and Hazara Singh, are the real brothers and Mst.
Bholan deceased was the wife of Hazara Singh and J agir Singh is the E
nephew of Bachan Singh, Piara Singh is the cousin of Hazara Singh and
Jagir Singh is the nephew of Hazara Singh. That PW Bachan Singh was to
celebrate Lohri festival in connection with the birth of his grand-child. He
went to J agir Singh at village Akim Masteke on 10th January 1981 to
request him (Jagir Singh) to join the celebration of Lohri festival at his F
house. On 11th January 1981 at about 9.00 a.m. Jagir Singh came to the
house of Bachan Singh and remained there upto 6.00 p.m. in connection
with the distribution of sweets on the occasion of the birth of his (Bachan
Singh's) grand-child. At about 6.00 p.m. Hazara Singh, his wife Mst.
Bholan, his brother Bachan Singh came out of the house along with J agir
Singh to see the latter off. They were standing in front of the gate of his G
(Hazara Singh's) house. At that time electric light which was fitted at his
house, was illuminating in which a human being could be identified. Jagir
Singh was going to connect his tractor with his trolley. Meanwhile, Piara
Singh accused armed with his D.B.B.L. gun, Wassan Singh accused armed
with a single barrelled gun and Charan Singh accused armed with 'gandasa' H
708 SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A came to the house of Hazara Singh and Bachan Singh raising 'lalkaras'.
Charan Singh accused raised a 'lalkara' that he and his companion co-
accused were going to teach Hazara Singh and others a lesson for parking
the tractor trolley in the lane. Piara Singh accused opened the attack by
firing from his D.B.B.L. gun towards Hazara Singh. However, the fire
missed the target as he (Hazara Singh) had knelt down to save himself and
B the fire passed over his head. Thereafter appellant fired from his single
barrelled gun and the shot hit Mst. Bholan deceased near her pelvic region.
On receipt of this injury, she fell down on the ground. Thereafter Charan
Singh accused dealt a 'gandasa' blow on the head of Bachan Singh from
its sharp side. Meanwhile Piara Singh accused dealt blow with the butt of
C his gun on the left hand of Jagir Singh and another blow from the said butt
on his right ear. Then Charan Singh accused dealt a 'gandasa' blow on the
head of Bachan Singh from its reverse side. Thereupon Hazara Singh,
Bachan Singh and J agir Singh raised 'raula' and on this, the accused
decamped with their weapons. Before that, Bachan Singh and Hazara
D Singh also caused injuries on the person of appellant in their self- defence.
Thereafter the PWs arranged a car in which Bholan was placed. Bachan
Singh and Hazara Singh accompanied her to Civil Hospital, Ferozepore,
at a distance of 14/15 kilometers. The car left village Nizamwala at about
6.45 p.m. but Bholan died on the way at a distance of 617 miles near village
Sodhiwala, on their way to the Hospital.
E
On receipt of telephonic message, Inspector Balvinder Singh of
Police Station Mallanwala went to the Civil Hospital, Ferozepore, and
recorded the statement of Hazara Singh, which formed the basis of the
First Information Report. The inspector held inquest and sent the dead
body of Smt. Bholan to the mortuary for autopsy. Thereafter, he went to
F
the spot, lifted blood-stained earth and recovered one empty cartridge case
from there. The accused were arrested on 17th January 1981 and their
weapons were taken into possession.

After investigation the appellant along with his co-accused were
G chargesheeted and ultimately their case was committed to the Court of
Sessions for trial. The learned Trial Judge after recording evidence and
hearing the rival versions took the view that appellant was guilty of an
offence under Section 302 of the IPC for killing Smt. Bholan and ordered
him to undergo imprisonment for life and to pay a fine of Rs. 3,000 or in
H default to further undergo rigorous imprisonment for one and a half years,
WASSAN SINGH v. STATE [S.B. MAJMUDAR, J.] 709

while Piara Singh and Charan Singh accused were sentenced under Section A
302 read with Section 34 of IPC and were directed to under go imprison-
ment for life and to pay a fine of Rs. 1,000 each and in default of payment
of fine to further undergo rigorous imprisonment for six months each. Piara
Singh accused was sentenced under Section 307 IPC and was directed to
undergo rigorous imprisonment for one and a half years and to pay a fine
B
of Rs. 300 and in default of payment of fine to further undergo rigorous
imprisonment for two months while the appellant and another accused
Charan Singh were sentenced under Section 307 read with Section 34 IPC
and were directed to undergo rigorous imprisonment for six months each
and to pay a fine of Rs. 100 each and in default of payment of fine to
further undergo rigorous imprisonment for one month each. Appellant was c
also sentenced under Sections 324 and 325 read with Section 34 for the
injuries caused to the concerned PWs as mentioned in the charge. He was
sentenced to undergo rigorous imprisonment for six months under Section
27 of the Arms Act.
D
The aforesaid decision of the Sessions Court resulted in criminal
· appeal moved by the appellant and the other two accused Piara Singh and
Charan Singh in the High Court of Punjab & Haryana at Chandigarh. The
Division Bench of the High Court after hearing the contesting parties came
to the conclusion that the co-accused Piara Singh and Charan Singh
deserved to be acquitted of the offences with which they were charged and E
the appeal qua them was fully allowed while so far as the appellant was
concerned, he was acquitted of offences under Section 302, Section 307
read with Section 34, Sections 324 and 325 read with Section 34 l.P.C.
However, he was held guilty of an offence under Section 304 Part I, IPC.
He was sentenced as aforesaid. His conviction and sentence under Section F
27 of the Arms Act were also maintained. That is how the appellant is
before us in the present appeal.

Learned advocate appearing for the appellant contended that when
the High Court came to the conclusion that the appellant had a right of
private defence of bpdy having received number of injuries in the incident, G
the High Court iri'stead of carrying this conclusion to its logical end,
wrongly assumed that the appellant had exceeded his right of private
defence of body as his reasonable apprehension could be of having caused
simple hurt at the hands of the complainant party and, therefore, he had
a right to give only grievous hurt but could not have caused any fatal injury H
710 SUPREME COURT REPORTS (1995) SUPP. 5 S.C.R.

A by the use of his firearm. It was vehemently contended that looking to the
evidence on record the aforesaid finding of the High Court is not well
sustained. Learned counsel for the respondent State of Punjab on the other
hand tried to support the reasoning and the final conclusion to which the
High Court reached. In our view the decision of the High Court to the
B effect that the appellant had exceeded the right of private defence cannot
be supported on the evidence on record. It will be profitable to extract
what the High Court has said in this connection in the penultimate
paragraph of its judgment at page 15 :

"........ Wassan Singh appellant and Dalip Singh had sustained as
c many as 12 injuries and out of them 2 injuries on the person of
Wassan Singh and one injury on the person of Dalip Singh were
on the vital parts of their bodies. In such a situation, the accused
party could legitimately harbour the apprehension that the com-
plainant party would cause them simple hurt. But Wassan Singh
appellant had over stepped the legal limits of the defence of person
D by firing a shot from his gun which hit Smt. Bholan and proved
fatal. The occurrence appears to have taken place all of a sudden
and it was not a pre-planned attack. When Wassan Singh appellant
apprehended simple hurt at the hands of the complainant party,
he had the right to give a grievous hurt but he obviously exceeded
E the right of private defence of his person and caused one fire arm
injury ~which proved fatal.

Consequently Wassan Singh is found guilty for an offence under
Section 304 Part I, Indian Penal Code......"

F Now it must be noted that according to the High Court the appellant had
a right of private defence as he had sustained number of injuries in the
incident. So far as his injuries are concerned. Dr. Jaspal Singh, PW. 1 has
described the injuries by stating as under :

"I conducted medico legal examination on the person of Wassan
G
Singh accused and found the following injuries on his person :

1. Incised wound of the size 5.5. cm x 1 cm bone deep at the
right front parietal region 9.5 cm from the right eye- brow,
obliquely placed and 8 cm from the right pinna. Blood clot
H was present. X-ray was advised.
WASSANSINGHv. STATE(S.B. MATMUD.AR,J.] 711

2. Swelling of the size 3.5. cm x 3.5 cm on the left side of the A
fore-head 1.5. cm above the left eye-brpw. X-ray was advised.

3. Reddish swelling of the size 5 cm x 3.5 cm with overlying
abrasion 2 cm x 0.5 cm at the back and upper part of left
fore-arm.
B
4. Swelling of the size 2.5 cm x 2.5 cm with overlying lacerated
wound 0.75 cm x 0.25 cm back and middle of left middle
finger of hand. X-ray was advised.

5. Swelling 1 cm x 1.5 cm at the tip of middle finger of left hand.
X-ray was advised.
c
6. Abrasion 0.5 cm x 0.5 cm on medical aspect and middle of
left index finger.

7. Reddish contusion 5.5 cm x 2 cm at the upper and lateral
D
aspect of right upper arm. X-ray was advised.

8. Reddish contusion 5 cm x 3 cm on the front and middle of
right upper arm.

9. Abrasion 3 cm x 2 cm on front of right elbow joint. E
The patient was conscious. Pulse was 72 per minute. B.P. 130/70.
Nature of the injuries. Injuries nos : 1, 2, 4, 5 and 7 were kept
under observation for X-ray. Injuries nos: 3, 6, 8 ~d 9 were
declared simple. The probable duration of the injuries was within
six hours. The weapon declared for injury No. 1 was sharp edged. F
Rest all by blunt weapon. On receiving X-ray report No. 10/60,
dated 13.1.1981, injuries nos : 1, 2, 4, 5 and 7 were declared simple."

Now it becomes at once clear that the appellant had received as many as
nine injuries out of which first two injuries were on a very vital part, namely, G
on his head and injury No. 1 was an incised wound which was caused by a
sharp-edged weapon. Under these circumstances if the appellant fired one
shot from his gun in his self-defence it could not be said that he had
exceeded the right of private defence as the nature of assault by the
complainant party which left him with the aforesaid injuries certainly could
be said to have caused a reasonable apprehension in his mind that grievous H
•.712 SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A hurt would otherwise be the consequence of such an assault. In this
connection it will be profitable to look at Section 100 of the Indian Penal
Code which reads as under :

"100. When the right of private defence of the body extends to
causing death. - The right of private defence of body extends, under
B the n~strictions mentioned in the last preceding section, to the
voluntary causing of death or of any other harm to the assailant,
if the offence which occasions the exercise of the right be of any
of the descriptions hereinafter enumerated, namely :

First. - Such an assault as may reasonably cause the apprehension
c that death will otherwise be the consequence of such assault;

Secondly. - Such an assault as may reasonably cause the apprehen-
sion that grievous hurt will otherwise be the consequence of such
assault;
D
Thirdly. - An assault with the intention of committing rape;

Fourthly. - An assault with the intention of gratifying unnatural
lust;

E Fifthly. - An assault with the intention of kidnapping or abducting;

Sixthly. - An assault with the intention of wrongfully confining a
person under circumstances which may reasonably cause him to
apprehend that he will be unable to have recourse to the public
authorities for his release."
F
It is not the case of the prosecution that any of the restrictions mentioned
in Section 99 can be invoked by the prosecution against the appellant. Once
that is so, clause 'secondly' of Section 100 would squarely get attracted. It
is difficult to appreciate the reasoning of the High Court that the
reasonable apprehension in the mind of the appellant who had received
G two injuries on his head and seven other injuries on his body would be the
apprehension that only simple hurt would be caused to him and not
grievous hurt. It is true that the first injury caused on his head had
fortunately not resulted into a fracture but when it was caused with a sharp
cutting instrument on the vital part of his body, namely, right side of head,
H it cannot be gainsaid that at least a reasonable apprehension would arise
WASSAN SINGH v. STATE [S.B. MATMUDAR, J.] 713

in his mind at the spur of the moment that if he does not retaliate by using A
his weapon, namely, the gun with which he was armed he would certainly
suffer at least a grievous hurt as a consequence of the assault by the
complainant party. Under these circumstances the right of private defence
of body available to the appellant would extend to even causing death. It
is of course true that his gun shot unfortunately hit an innocent person like B
Smt. Bholan who was present on the scene _of occurrence but as at the very
same time and place the appellant had suffered an assault at the hands of
the assailants comprising of the complainant party, right of private defence
of body which would extend to even causing death of the assailant would
arise in favour of the appellant on the facts of the present case and in
exercise of that right if death is caused not of the assailant but of any other C
person it cannot be said that the right of private defence extending up to
causing· death of the assailant would not be available to the accused qua
even an innocent party which got fatally hurt on account o~ the exercise
of such a right of private defence which enured for the appellant under
Section 100 clause secondly of the IPC. It is obvious that if an accused with D
an intention to kill his victim fires a shot at him which misses the target
and hits any other innocent person fatally he would remain guilty of an
offence of murder but if the accused had no such intention and was
protected by right of private defence under the situation and circumstances
in which it could extend to even causing death of assailant as laid down by
Section 100 and if in exercise of that right of private defence the blow E
fatally falls on an innocent person the action would still remain protected
under Section 100 of the IPC. It this connection we may refer to Section
301, IPC which reads as under:

"301. Culpable homicide by causing death of person other than F
person whose death was intended - If a person, by doing anything
wliich he intends or knows to be likely to cause death, commits
culpable homicide by causing the death of any person, whose death
'• he neither intends nor knows himself to be likely to cause, the
culpable homicide committed by the offender is of the description
of which it would have been if he had caused the death of the G
person whose death he intended or knew himself to be likely to
cause."

For applicability of that Section the act must amount to culpable homicide
in the first place. If the act is not culpable at all, then even if it results into H
714 SUPREME COURT REPORTS [1995] SUPP. 5 S.C.R.

A homicide of an innocent person, in view of .Section 100 IPC as in the
present case, Section 301 will have no operation.

While judging the nature of apprehension which an accused can
reasonably entertain in such circumstances requiring him to act on the spur
of moment when he finds himself assaulted, by number of persons, it is
B difficult to judge the action of the accused from the cool atmosphere of
the court room. Such situations have to be judged in the light of what
happens on the spur of the moment on spot and keeping in view the normal
course of human conduct as to how a person would react under such
circumstances in a sudden manner with an instinct of self-preservation.
C Such situations have to be judged from the subjective point of view of the
accused concerned who is confronted with such a situation on spot and
cannot be subjected to any microscopic and pedantic scrutiny. In this
connection it is profitable to refer to two decisions of this Court. In the
case of Mohd. Ramzani v. State of Delhi, [1980] Supp. SCC 215, a Division
D Bench of this Court speaking through Sarkaria, J. made the following
pertinent observations :

"...... the onus which rests on an accused person under section 105,
Evidence Act, to establish his plea of private defence is not as
onerous as the unshifting burden which lies on the prosecution to
E establish every ingredient of the offence with which the accused is
charged, beyond. reasonable doubt. It is further well established
that a person faced with imminent peril of life and limb of himself
or another, is not expected to weigh in 'golden scales' the precise
force needed to repel the danger. Even if he in the heat of the
moment carries his defence a little further than what would be
F necessary when calculated with precision and exactitude by a calm
and unruffled mind, the law makes due allowance for it... .... "

In the case of Deo Narain v. The State of UP., (1973) 1SCC347, this Court
was concerned with a situation where the accused had received a blow on
G head by a 'lathi' and in self-defence he had used his spear in retaliation.
While holding that the accused was entitled to the right of private defence
extending to even causing death, in such a case, he was acquitted of the
offence under Section 302 IPC. In this connection Dua, J., speaking for this
Court in paragraph 5 of the Repo!t has made these pertinent observations:

H "In our opinion, the High Court does seem to have erred in law in
WASSAN SINGHv. STATE [S.B. MATMUDAR, J.] 715

-' convicting the appellant on the ground that he had exceeded the A
right of private defence. What the High-Court really seems to have
missed is the provisions of law embodied in Section 102, I.P.C.
According to that section the right of private defence of the body
commences as soon as a reasonable apprehension of danger to the
body arises from an attempt or threat to commit the offence,
though the offence may not have been committed, and such right B
continues so long as such apprehension of danger to the body
continues. The threat, however, must reasonably give rise to the
present and imminent, and not remote or distant danger. This right
rests on the general principle that where a crime is endeavoured
to be committed by force, it is lawful to repel that force in C
self-defence. To say that the appellant could only claim the right
to use force after he had sustained a serious injury by an aggressive
wrongful assault is a complete misunderstanding of the law em-
bodied in the above section. The right of private defence is avail-
able for protection against apprehended unlawful aggression and
not for punishing the aggressor for the offence committed by him. D
It is a preventive and not punitive right. The right to punish for
the commission of offences vests in the State (which has a duty to
maintain law and order) and not in private individuals. ..................
the approach of the High Court that merely because the
complainant's party had used lathis, the appellant was not justified E
in using his spear is no less misconceived and insupportable.
During the course of a marpeet, like the present, the use of a lathi
on the head may very well give rise to a reasonable apprehension
that death or grievous hurt would result from an injury caused
thereby. It cannot be laid down as a general rule that the use of a
lathi as distinguished from the use of a spear must always be held F
to result only in milder injury. Much depends on the nature of
the lathi, the part of the body aimed at and the force used in giving
the blow. Indeed, even a spear is capable of being so used as to
cause a very minor injury. The High Court seems in this connection
to have overlooked the provisions contained in Section 100, I.P.C. G
We do not have any evidence about the size or the nature of the
lathi. The blow, it is known, was aimed at a V'Jlnerable part like
the head. A blow by a lathi on the head may prove instantaneously
fatal and cases are not unknown in which such a blow by a lathi
has actually proved instantaneously fatal. If, therefore, a blow with
a lathi is aimed at a vulnerable part like the head we do not think H
716 SUPREME COURT REPORTS [1995) SUPP. 5 S.C.R.

A it can be laid down as a sound proposition of law that in such cases
the victim is not justified in using his spear in defending himself.
In such moments of excitement or disturbed mental equilibrium it
is somewhat difficult to expect parties facing grave aggression to
cooly weigh, as if in golden scales, and calmly determine with a
composed mind as to what precise kind and severity of blow would
B be legally sufficient for effectively meeting the unlawful aggression.
No doubt, the High Court does seem to be aware of this aspect
because the other accused persons were given the benefit of this
rule. But while dealing with the appellant's case curiously enough
the High Court has denied him the right of private defence on the
sole ground that he had given a dangerous blow with considerable
c force with a spear on the chest of the deceased though he himself
had only received a superficial lathi blow on his head. This view
of the High Court is not only unrealistic and unpractical but also
contrary to law and indeed even in conflict with its own observation
that in such cases the matter cannot be weighed in scales of gold."
D
The facts of the present case are almost parallel to the facts on the
aforesaid case. Consequently it must be held that the appellant had a right
of private defence of body which extended to even causing death and in
exercise of that right if he fired one gun shot which unfortunately killed an
innocent person, that is, Smt. Bholan, it cannot be said that he was guilty
E of an offence even under Section 304 Part I of the IPC on the ground that
he had exceeded his right of private defence. Consequently the conviction
of the appellant under Section 304 Part I, IPC as rendered by the High
Court is quashed and set aside. The High Court has already acquitted the
appellant of charges under Sections 307, 324 and 325 of the IPC. So far as
F his conviction under Section 27 of the Arms act is concerned even that
would not survive as it could not be said that he had used his gun for any
unlawful purpose, that is, to commit culpable homicide of Mst. Bholan not
amounting to murder. The appeal is accordingly allowed. Accused is on
bail. His bail bonds shall stand discharged.

G v.s.s. Appeal allowed.