Introduction

• This is an important case regarding the provisions of the Right of Private defence.
  • The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. It is a preventive and not punitive right.

Facts

• There was some dispute regarding the possession of certain plots of land in the village Baruara of District Ghazipur, Uttar Pradesh.
• Various legal cases were filed by the rival parties with respect to the title and possession of the said plot of land.
• There was a clash between the appellant and complainant parties.
• In this clash the appellant inflicted a fatal spear injury on the deceased.
  • The deceased had received one lacerated wound on the right side of his skull and one incised wound on the left shoulder with a punctured wound. The last injury was responsible for his death.
• The trial court had acquitted the accused persons of the charges as it was concluded after appraising the evidence that the accused persons had right of private defence and that they were justified in exercising that right.
  • According to the trial Court the complainant's party had actually gone to the plots in question for the purpose of preventing the accused persons from cultivating and sloughing the said land.
• The State of Uttar Pradesh appealed against the acquittal of the accused persons to the High Court of Allahabad where the HC convicted the appellant of an offence under Section 304 India Penal Code, 1860 (IPC) and sentenced him to rigorous imprisonment for five years.

Issue Involved

Whether the appellant exceeded his right of private defence in using his spear against the blow given by lathi?

Observations

• The SC held that HC erred in law in convicting the appellant on the ground that he had exceeded the right of private defence.
• According to Section 102 of IPC 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 continues so long as such apprehension of danger to the body continues.
  • The threat, however, must reasonably give rise to present and imminent, and not remote or distant danger.
• This right rests on the general principle that where a crime is endeavored to be committed by force, it is lawful to repel that force in 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 embodied in the above section.
• As soon as the appellant had a reasonable apprehension of danger to his body that there was a real threat from a part of the party on the side of the Complainant to assault him so as to obtain the forcible possession of the disputed land or to obstruct their cultivation, he got the right of private defence and to use adequate force against the wrongful aggressor in exercise of that right.
• The party on the side of the complainant had purposely come to prevent or obstruct the possession of the accused persons and that this forcible obstruction and prevention was unlawful.
• The appellant could reasonably apprehend imminent and present danger to his body and to his companions.
• He was thus fully justified in using force to defend himself and also his companions against the apprehended danger, which was manifestly imminent. 
• 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 to result only in a minor 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.
• If, a blow with a lathi is aimed at a vulnerable part like the head it cannot 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 calmly weigh, that how much severity of the blow would be legally sufficient for effectively meeting the unlawful aggression.
• Hence, if the accused gave a dangerous blow with considerable force with a spear on the chest of the deceased though he himself had only received a superficial lathi blow on his head the right of private defence cannot be denied.

Conclusion

• The SC allowed the appeal as the appellant had a right to private defence to the extent of causing death as laid down under Section 100 of the IPC and acquitted the appellant.

Note: -

100. When the right of private defence of the body extends to causing death. - The right of private defence of the body extends, under the restrictions 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 that death will otherwise be the consequence of such assault;

Secondly. - Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault;

Thirdly. - An assault with the intention of committing rape;

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

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.

Seventhly. - An act of throwing or administering acid or an attempt to throw or administer acid which may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.

102. Commencement and continuance of the right of private defence of the body. - 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 it continues as long as such apprehension of danger to the body continues.

302. Punishment for murder. - Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.