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PETITIONER: AMJAD KHAN

       Vs.

RESPONDENT: THE STATE

DATE OF JUDGMENT: 20/03/1952

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN FAZAL ALI, SAIYID

CITATION:  1952 AIR  165            1952 SCR  567  CITATOR INFO :  R          1957 SC1674  (8)  F          1960 SC  67  (7)  D          1990 SC1459  (36)

ACT:   Indian penal Code (Act XLV of 1860),  ss. 97, 102 and  105 Right  of private defence--Reasonable apprehension of  death or grievous hurt.

HEADNOTE:     A communal riot broke out in a town between some  Sindhi refugees  and the local Muslims.  The trouble started  in  a locality  where most of the shopkeepers were  Sindhis.   The goods  in  the Muslim shops there were  scattered  and  some Muslims lost their lives.  Alarm spread to another  locality where the shops of appellant and his brother (both  Muslims) were situated and the people there, including the appellant, started  closing their shops. The family of the  appellant’s brother had taken shelter in the appellant’s portion of  the building through a hole in the wall between the two portions of the building in which the two shops were situated.  A mob collected there and approached the appellant’s locality  and looted his brother’s shop and began to beat the doors of his shop  with lathis.  The appellant fired two shots  from  his gun  which caused the death of one Sindhi and injured  three other  Sindhis. The question for determination  was  whether the appellant acted in his right of private defence:     Held,  that  the facts of the case afforded a  right  of private defence to the appellant under the provisions of the Indian Penal Code.  The circumstances in which he was placed were amply sufficient to give him a right of private defence of  the  body  even to the extent of causing  death  as  the appellant  had no time to have recourse to  the  authorities and   has  reasonable grounds for apprehending  that  either death or grievous hurt would be caused either to himself  or to  his  family.  These things could not be weighed  in  too fine a set of scales or "in golden scales."

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  50

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of  1951.   Appeal by SpeciaI Leave from  the  Judgment  and Order  dated the 26th September, 1950, of the High Court  of Judicature of Nagpur (Herneon Acting C.J. and Hidayat  Ullah J.) in Criminal Appeal No. 251 of 1950 arising out of  Judg- ment  dated the 2nd August, 1950, of the Court  of  Sessions Judge, Jabalpur, in Sessions Trial No. 32 of 1950. 568     S.P. Sinha and M.Y. Sharif, Nuruddin Ahmad and  (Shaukat Hussain, with them) for the appellant. Gopal Singh for the respondent.     1952. March 20. The Judgment of the court was  delivered by     BOSE J.--The main question in this case is whether there is a right of private defence.  Most of the facts are not in dispute.     A communal’ riot broke out at Katni on the 5th of March, 1950, between some Sindhi refugees resident in the town  and the  local  Muslims.  The trouble started  in  the  locality known  as  Zanda  Bazar or Zanda  Chowk.   Police  Constable Bharat  Singh, P.W. 17, who made the First  Information  Re- port,  said that most of the shopkeepers in Zanda Bazar  are Sindhis.  He stated that when he was to1d that  trouble  had broken out there he proceeded to the spot and found that the goods  in the Muslim shops in that locality were  scattered. It is also in  evidence that some Muslims lost their lives.     From this place he went on to Subash Chowk, the locality in  which the appellant’s shop is situate.  It lies  to  the West  of  Zanda Bazar. He states that when he got  there  he found  a "crowd" there but not a "mob". He admitted that  he had  said  in the First Information Report that  a  gun  was fired  a  minute after he had reached the spot and  he  said that what he had stated in the First Information Report  was true.   It is not disputed that this shot was fired  by  the appellant,  as also a second shot, and that that caused  the death  of one man (a Sindhi) and injured three others,  also Sindhis.     The map, Ex. D-4, shows that the shops of the  appellant and his brother Zahid Khan run into each other and form  two sides of a rectangle, the appellant’s house facing north and the brother’s house  facing east.  Each shop opens out on to a road. 569     It  is  proved that when the rioting broke  out  in  the Zanda Chowk the alarm spread to the appellant’s locality and the  people there, including the appellant, started  closing their shops.     The  appellant’s version is that the mob approached  his locality  and broke into the portion of the building  facing east  in which his brother’s shop is situate and looted  it. The  High Court holds that this is proved and holds  further that this preceded the firing by the appellant.     There is a hole in the wall between the two portions  of the  building in which these two shops are situate  and  the High  Court  holds that Zahid’s family got into  the  appel- lant’s  portion of the building through this hole  and  took refuge  there.   The High Court also holds that  the  appel- lant’s  mother  then told the appellant that the  crowd  had burst  into his (appellant’s) shop and was looting it.   The learned  Judges state that what he said was not  quite  true because  all that the crowd did was to beat the door of  the appellant’s  shop with lathis as they were passing  but  had not broken into the shop.  But they accept the fact that the crowd  was  beating the doors of the appellant’s  shop  with their lathis.     In  our opinion, the facts found by the High  Court  are

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sufficient  to  afford  a right of  private  defence.  Under section  97 of the indian Penal Code the right  extends  not only  to the defence of one’s own body against  any  offence affecting  the human body but also to defending the body  of any other person.  The right also embraces the protection of property,  whether  one’s own 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  more harm than is necessary for the purpose of defence.   Another limitation is  that when death is 570 caused the person exercising the right must be under reason- able 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 of the right is further explained  in  sec- tions 102 and 105 of the Indian Penal Code.     Neither the learned High  Court Judges nor the  Sessions Judge has analysed these provisions.  Both Courts appear  to be  under the impression that actual looting of  the  appel- lant’s shop was necessary before the right could arise.   In that they are wrong. Under section 102 the right of  private defence of the body commences--     "As  soon as a reasonable apprehension of the danger  to the  body  arises from an attempt or threat  to  commit  the offence  though the offence may not have been committed."     Examining  the provisions we have set out above,  it  is evident  that the appellant had no time to have recourse  to the  authorities. The mob or crowd had already  broken  into one  part  of the building and was actually beating  on  the doors of the other part.  It is also evident that the appel- lant  had  reasonable grounds for apprehending  that  either death or grievous hurt would be caused either to himself  or his  family  learned  Sessions Judge  has  eloquently  drawn attention to the lamentable  consequences of communal frenzy in  India and in Katni in particular, and he refers  to  the indiscriminate  looting  of Muslim shops in that  town.   So also the High Court holds that-   " Looking to the circumstances which had existed in  the country before and the fact that the trouble was between the refugees and the local Muslims it cannot be said that  there would be no danger to the life of the appellant or at  least of  grievous  hurt if the mob had entered his  shop  and  he prevented it.  The apprehension would undoubtedly be reason- able."     And  we know that Muslim shops had already  been  broken into and looted and Muslims killed in the 571 rioting at Zanda Chowk which preceded this, in our  opinion, the High Court was wrong in thinking that the appellant  had to  wait  until  the mob actually broke into  his  shop  and entered  it.  They have emphasised this in another  part  of their judgment also where they say that the shot was fired- " when there was no looting at the shop and thus no right of private defence."     It  was  enough that the mob had  actually  broken  into another part of the house and looted it, that the woman  and children of his family fled to the appellant for  protection in  terror  of  their lives and that the  mob  was  actually beating  at his own doors with their lathis and that  Muslim shops  had  already been looted and Muslims  killed  in  the

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adjoining  locality.   It  was impossible for  him  to  know whether his shop would or would not suffer the same fate  if he waited, and on the findings it was reasonable for him  to apprehend  death or grievous hurt to himself and his  family once they broke in, for he would then have had the right  to protest and indeed would have been bound to do what he could to protect his family.  The threat to break in was  implicit in the conduct of the mob and with it the threat to kill  or cause  grievous hurt to the inmates; indeed the  High  Court Judges  themselves hold that his own shop was menaced.   The circumstances  in which he was placed were amply  sufficient to  give him a right of private defence of the body even  to the extent of causing death. These things cannot be  weighed in too fine a set of scales or, as some learned Judges  have expressed it, in golden scales.      We  have  next to see whether the appellant  used  more force than was necessary, and here also we cannot use golden scales.  He was entitled to cause death and he did not  kill more  than  one man.  He fired only two shots  and,  as  the learned  High Court Judges observe, he obviously aimed  low. The  High Court holds the mob had moved up to  his  locality When he fired the shots, so the looting and the beating 572 on  the doors were not the isolated acts of a few  scattered individuals.   It was the mob that was doing it and  in  the High Court’s words,     "The  very  fact  that in the town of  Katni  two  shots should have struck four Sindhis and none else shows that the rival community was on the move in that area."     In  our  opinion, the appellant did not use  more  force than was necessary.  Indeed, the firing, far from acting  as a deterrent, spurred  them on and they ransacked and  looted the place.     We  have confined our attention to the right of  private defence of the person though in this case the question about the defence of property happens to be bound up with it.     The  appeal is allowed.  The convictions  and  sentences are set aside and the appellant will be released. Agent for the appellant: O.P. Verma. Agent for the respondent: P.A. Mehta.