# Dr. J.N. Mishra v. State of U.P

- **Citation:** (2024) 5 ILRA 950
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-22
- **Case number:** Criminal Appeal No. 2531 of 2013
- **Bench:** Rahul Chaturvedi, Ms. Nand Prabha Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-j-n-mishra-v-state-of-u-p-52108
- **Pages:** 16

## Headnote

A. Criminal Law-Criminal Procedure Code,
1973-Section 374(2)-Indian Penal Code,
1860-Section 302 - Arms Act,1959 -
Section 30 - challenge to -conviction-the
deceased was the son-in-law of the
appellant-tension arose between them-his
son-in-law
came
to
his
clinic
and
challenged him by putting under the threat
of tamancha and his bodyguard fired upon
him-even after having first gunshot, he
again tried to kill the appellant giving more
than reasonable apprehension to the
accused-he
might
be
killed
by
the
deceased-the appellant's own life and
future life of his daughter was at stake and
spur of moment, he has to take the call, in
this situation he has chosen to save his lifeThe court held that the power and force
used by the appellant while eliminating his
son-in-law, is not excessive or beyond the
limits and he has acted in exercising the
right of private defense.(Para 1 to 37)

The appeal is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,838 of 55,045. This is a partial read: ask again with offset=39838 for what follows._

950 INDIAN LAW REPORTS ALLAHABAD SERIES
convicting accused/appellants Lavkush and
Radhey Lal, the learned trial court has failed
to assess the evidence properly which are
available on record.

32. The formal witnesses PW 3 to
PW 6 have proved the documentary
evidence of prosecution and in their cross
examination
no
otherwise
fact
or
circumstance has been found which is
adverse to prosecution story. Hence, the
appeal is liable to be allowed partly.

33. Accordingly, the appeal is
partly allowed. The judgment of conviction
and order of sentence passed by learned trial
court in respect of both the appellants,
namely, accused/appellants - Lavkush and
Radhey Lal is set aside. They are on bail.
They need not surrender. Their sureties are
discharged.

34. So far as the appeal on behalf of
accused/appellant
Hari
Shanker
is
concerned, the same is dismissed. The
conviction and sentence order passed by the
learned trial court against the appellant -
Hari Shanker is affirmed. Appellant - Hari
Shanker is on bail. He shall surrender before
the trial court concerned immediately to
serve out the sentence. In case the appellant
Hari Shanker fails to surrender before the
trial court concerned, the trial court
concerned shall issue N.B.W. against the
appellant Hari Shanker. If appellant Hari
Shanker appears or brought before the trial
court concerned, he shall be sent to jail for
serving out the sentence as awarded by the
trial court.

35. Let a copy of this judgment
along with the trial court record be sent to
the trial court concerned for necessary
compliance.
----------
(2024) 5 ILRA 950
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.05.2024

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
THE HON'BLE MS. NAND PRABHA SHUKLA, J.

Criminal Appeal No. 2531 of 2013

Dr. J.N. Mishra ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Govind Saran Hajela

Counsel for the Respondent:
Govt. Advocate, R P Singh Parihar, Rajesh
Shankar Srivastava

A. Criminal Law-Criminal Procedure Code,
1973-Section 374(2)-Indian Penal Code,
1860-Section 302 - Arms Act,1959 -
Section 30 - challenge to -conviction-the
deceased was the son-in-law of the
appellant-tension arose between them-his
son-in-law
came
to
his
clinic
and
challenged him by putting under the threat
of tamancha and his bodyguard fired upon
him-even after having first gunshot, he
again tried to kill the appellant giving more
than reasonable apprehension to the
accused-he
might
be
killed
by
the
deceased-the appellant's own life and
future life of his daughter was at stake and
spur of moment, he has to take the call, in
this situation he has chosen to save his lifeThe court held that the power and force
used by the appellant while eliminating his
son-in-law, is not excessive or beyond the
limits and he has acted in exercising the
right of private defense.(Para 1 to 37)

The appeal is allowed. (E-6)

List of Cases cited:

1. Periyasamy Vs St. (2024) SCC Onlin SC 314
5 All. Dr. J.N. Mishra Vs. State of U.P.
951
2. Darshan Singh Vs St. of Punj. & anr.(2010) 2
SCC 333

3. James Martin Vs St. of Ker. (2004) SCC (Cri)
487

4. Ex CT. Mahadev Vs The Dir. Gen. B.S.F & ors.
(2022) LiveLaw (SC) 551

5. Dharam Vs St. of Har. (2007) 15 SCC 241

6. Jangir Singh Vs St. of Punj. CRLA No. 2499 of
2009

7. Gopal & anr. Vs St. of Raj. (2013) 2 SCC 188

(Delivered by Hon'ble Rahul Chaturvedi, J.
& Hon'ble Ms. Nand Prabha Shukla, J.)

[1] Heard Sri Govind Saran Hajela,
learned counsel for the appellant, Sri R.P.
Singh Parihar and Sri Sudhir Singh
Chauhan,
learned
counsels
for
the
complainant and Sri Satyendra Tiwari,
learned A.G.A. for the State at length and
perused the records.

[2] Paper book is ready and learned
counsels for the contesting parties are ready
to argue the case finally on the merit of the
case. We are in the receipt of citations
supplied to the Court by the respective
counsels in support of their contentions.

[3] By means of the present appeal
under section 374(2) Cr.P.C., the appellant is
assailing the legality and validity of the
judgment and order dated 07.05.2013
passed by learned Additional Sessions
Judge, Court No.2, Shahjahanpur while
deciding S.T. No.457 of 2010 arising out of
case crime no.155 of 2010, under section
302 IPC and Section 30 of the Arms Act,
police
station-Jalalabad,
DistrictShahjahanpur thereafter convicting and
sentencing the appellant under section 302
IPC with life imprisonment and fine of
Rs.50,000/-, under section 30 of the Arms
Act for six months rigorous imprisonment
and a fine of Rs.2,000/- and in default of
fine, one month additional imprisonment
was awarded to the appellant.

FACTS OF THE CASE :

[4] Before coming to the merit of
the case, it is relevant to give a bird's eye
view to the factual aspect of the issue. As
surfaced from the FIR, (I) informant is
Ashok Kumar Dubey s/o Ramswaroop, for
the incident of 02.03.2010 at 18:00 hours in
the evening, the FIR came into existence on
the same day at 23:30 hours. The distance
from the place of occurrence to the police
station is hardly three furlong (603.50
mtr.) ;(ii) the FIR was lodged against the
appellant Dr. J.N. Mishra ; Seema(wife of
the appellant), Nidhi(daughter of the
appellant and wife of the deceased) and one
unknown person ; (iii) As per the allegations
made in the FIR, informant's son Sudhanshu
(25 years) got married with daughter of the
appellant Nidhi. As per the allegation, the
appellant wanted to make Sudhanshu as his
'ghar-jamai' to look after his nursing home
but as per the social norms and traditions,
Sudhanshu declined this offer of his fatherin-law and on this score, there was deep
rooted discord and differences between
them; (iv) In order to resolve this tangle,
'panchayat' was convened on 02.03.2010
around six in the evening at the clinic of the
appellant Dr. J.N. Mishra at Jalalabad
whereby the informant, his wife Pushpa and
his son-Sudhanshu went to the clinic where
the appellant, his wife-Seema and his
daughter-Nidhi and one unknown person
were present. All of a sudden during heated
altercation, the host/accused-apellant started
hurling filthy abuses and thereafter on the
exhortation made by Nidhi, wife of the
deceased, the appellant and unknown person
952 INDIAN LAW REPORTS ALLAHABAD SERIES
pumped
fires
upon
his
son-in-law
Sudhanshu, who died on the spot. Anyhow,
the informant and his wife Pushpa could
save his life and lodged the present FIR at
11:30 p.m. after the delay of 5.30 hrs.

[5] After lodging of the FIR,
Investigating Officer of the case has taken
dead body of Sudhanshu(deceased) for the
post mortem and after having thorough
investigation into the matter, submitted the
report under section 173(2) Cr.P.C. against
the appellant Dr. J.N. Mishra alone,
dropping the name of other co-accused
persons of the FIR. The said charge sheet
was submitted under section 302 IPC and
Section 30 of the Arms Act only against
accused/appellant. Consequently, learned
Magistrate took the cognizance of the
offences and being cognizable offence,
committed to the court of sessions for trial.

[6] Learned trial Court on
26.07.2010 has framed the charges against
the appellant under section 302 IPC and
since, there is recovery of licensee rifle of
315 bore having no.93 AB 1985 and
therefore, Section 30 of the Arms Act was
added among the charges which were duly
explained to the appellant to which the
appellant denied from the charges and
insisted to be tried.

[7] The prosecution, in order to
establish the case, produced seven witnesses of
fact as well as formal witnesses, out of which
Ashok
Kumar
Dwivedi
as
PW-1,
Pushpa@Pushpalata as PW-2, Nawab as PW-3,
Dr. Suresh Kumar Vashisth as PW-4, S.I. Vinay
Pal Singh as PW-5, S.S.I. Surendra Singh as PW6, and Constable 962 C.P. Jakir Hussain as PW7 were produced. Besides above, 16 different
documents were also produced by the
prosecution during trial which were duly proved
and were exhibited during trial.
[8] Soon after the prosecution
witnesses were over, statements under
section 313 Cr.P.C. was recorded of the
accused in which he has denied every
allegations of the FIR and the story of the
prosecution and has submitted that, he has
been falsely implicated in the present case.
He further submitted that he has got no son
and the deceased-Sudhanshu, who was his
son-in-law, was insisting to transfer his
newly raised clinic in his name and when
appellant denied to do so, then in order to
eliminate the appellant, Sudhanshu pointed
his
tamancha
over
his
father-inlaw(appellant). In order to defend the
accused-appellant, the gunner of the
appellant fired upon Sudhanshu, killing his
own son-in-law. He further stated that
Sudhanshu was his son-in-law and was
unemployed. He was having all sorts of bad
habits including drinking. Taking into
account the holistic view of the matter and
strained relationship between them, accused
appellant was apprehensive about his own
safety and that is why he engaged a private
shadow-gunner
whose
name
was
Harpal@Babba. On the date of incident, it
was next day of Holi and his son-in-law
came to the clinic of the appellant and took
out his tamancha, extended threat to
eliminate the accused/appellant. Sensing
imminent danger and threat upon the life of
his master, his shadow gunner fired from his
rifle eliminating Sudhanshu. At the relevant
time, neither wife of the appellant nor his
daughter Nidhi as alleged in the FIR was
allegedly present over the place of
occurrence. Sudhanshu came to him all
alone. After the incident, police personally
informed the parent of the deceased, then
they came to Jalalabad and lodged the FIR.
It was further revealed that his shadow
gunner
Harpal@Babba
died
naturally
during trial. In order to establish the case,
5 All. Dr. J.N. Mishra Vs. State of U.P.
953
defence has also produced one Ram Nath
Pandey as DW-1.

[9] We have requested learned
counsel for the appellant to provide his
written arguments and counsel for the
appellant has provided date and events,
moot points for the determination of the
present appeal and citations on which they
want to rely upon. Learned counsel for the
appellant, during the course of arguments,
have hammered his submissions upon two
following points :-

(i) That the FIR was delayed by 5:30
hours, meaning thereby for the incident of 6
p.m. in the evening, the FIR was lodged at
11:30 p.m. where the police station is hardly
three furlong (603.50 mtr) away from the
place of occurrence and there is no
justifiable reason coming forward to explain
this inordinate delay.
(ii) The alleged killing of son-in-law
Sudhanshu was in exercise of power of right
of self-defence and the deceased was
carrying tamancha in his hand after
extending threats to the appellant, which has
created sufficient amount of apprehension in
the mind of the appellant regarding his life
and the fire was opened in exercise of power
to right of self-defence.
The question as to whether while
exercising his right of self-defence, the
accused/appellant or his shadow-gunner
have crossed his limits while exercising his
powers?

[10] Before appreciating and
analysing the judgment impugned by the
learned trial Court, it is mandatory to
overview the testimonies of the witnesses of
fact, so as to appreciate the controversy
involved in its correct perspective.

DELAYED FIR :
[11] It is admitted by PW-1 and
PW-2 in their respective testimonies, that for
the incident of 6 p.m. on 02.03.2010, the FIR
was registered at 23:30 hours where the
police station is hardly three Furlong
(603.50 mtr.) away from the place of
occurrence. Learned trial Court, while
dealing with this issue at Page-16 of the
judgment, has given undue advantage and
importance to the informant that after the
incident, he was literally frightened and
shaken that he could not lodge the FIR
within reasonable time. Though, the police
station is not very far from the place of
occurrence. But learned trial Court has given
undue weightage to the explanation given by
the informant that after the incident, instead
of rushing to either doctor or police station
after the incident, he has taken his wife
Pushpa to bus station and sent her to
Farrukhabad with the instruction to inform
his family members about alleged shootout
and only after few persons came from
Farrukhabad to Jagdishpur, then only
he/informant got the FIR lodged at 11:30
p.m. through Om Kiran, the scribe.

[12] At page-2 of the crossexamination, informant stated that he was
deeply frightened to see the murder of his
son right in front of his eyes. He stated that
in this firing transaction, he and his wife has
not obtained a single scratch over them.
After the incident, he came to his son, turned
his dead body and thereafter, taken her wife
to bus station to get her boarded in the bus
and started waiting for the persons to come
from Farrukhabad. He stated that "घटनर के बरि
र्ैंने अपनी पत्नी को फरुमखरबरि की बस र्ें बैठर दियर थर उस बस कर
नांबर र्ुझे यरि नहीं है उस यरत्र की दटकट र्ेरी पत्नी ने िी थी र्ैंने
नहीं िी थी" This seems to be most unnatural
conduct on the part of the parent, whose son
was allegedly murdered by the accusedappellant/his body guard right in front of
their eyes, as claimed in the FIR.
954 INDIAN LAW REPORTS ALLAHABAD SERIES
[13] From the aforesaid analysis, it
is clear that the present FIR was registered
after unexplained delay of 5:30 hours where
the police station is hardly three furlong
(603.50 mtr.) from the place of occurrence
as stressed by learned counsel for the
appellant. Yet another connected aspect of
the issue is that, 02.03.2010 was the next day
of Holi and it was six in the evening,
Surendra Singh, S.S.I. was S.H.O. police
station-Jalalabad on the date of incident.
However, he was put before the court as PW6 and was cross-examined, where he has
stated that "घटनर वरिर दिन होिी कर िूसरर दिन थर गश्त व्
दपकेट चि रही थी थरने से घटनर स्थि की िूरी करीब तीन फ़िरांग
की है र्ृतक सुिरांशु कर र्ोबरइि नांबर र्ैंने दिखर थर घटनर की सूचनर
र्ुझे 15 दर्नट के अांिर नहीं दर्िी थी बदल्क वरिी ने आकर िी थी
र्ेरे थरने जिरिरबरि र्ें वरयरिेस है कोतवरिी फतेहगढ़ र्ें वरयरिेस
है"

On conjoint reading of both the
statements, it is clear that it was the next day
of Holi and incident is at 6 p.m in the
evening where it is claimed that the police
party was on the picket to maintain public
peace and order. This serious incident has
taken place within a range of three furlong
(603.50 mtr.) from the place of occurrence
and the police party remain oblivious of this
serious shoot out in the evening at 6 and it is
the
informant
who
has
given
this
information after 5:30 hours, which itself
castes serious question mark upon the way
and manner this shoot out have taken place
and thereafter FIR was lodged after
inordinate delay. The conduct of the
informant, as mentioned in their crossexamination that after shoot out, he has only
turned the dead body of his son and rushed
to the bus station to sent his wife to
Farrukhabad instead of going to the doctor
or to the police station. All this aspect of the
issue are most unnatural and against normal
human behaviour.

RIGHT
OF
PRIVATE
DEFENCE :

[14] The second aspect of the issue
is as to whether this shoot out was as a result
of exercising the right of private defence by
the accused appellant and the injuries
sustained by the deceased-Sudhanshu ?
After the death of Sudhanshu, deady body
was sent by the police for autopsy. Dr.
Suresh
Kumar
Vashisth,
PW-4
who
conducted the autopsy on 03.03.2010 at 1:30
p.m. has submitted that (i) there was a gun
shot injury of 0.9 cm x 0.8 cm x embedded
under the chest below the right shoulder of
15 cm. The margins were inverted and
blackening and tattooing were present, (ii)
gun shot wound of exit of 1.5 cm x 1 cm
which corresponded to the injury no.1 from
the back side of the shoulder of 15 cm below.
Both the injuries were through and through,
(iii) wound of entry of 1 cm x 0.8 cm x inside
the stomach which is embedded inside the
right buttock. Around both the wound, there
was blackening and scotching, suggestive of
the fact that fire over the deceased was from
the close proximity, say about 2-3 meters. As
a result of second gun shot injury,
deceased's right pelvic girdle was found
fractured. The brain was paled, third rib was
fractured, both the lobs of lungs were
scattered. The heart was empty and within
plural cavity, there was two ltrs. of blood
present and the cause of injury was
excessive blood loss. The doctor also took
out one metallic bullet inside the stomach
which was sealed and handed over to the
police personally.

[15] At this juncture, learned
counsel for the appellant has submitted that
the recovery of the metallic bullet attains
significance. Since, there is no resistance of
bone inside the stomach, full metallic bullet
was recovered but when the said bullet was
5 All. Dr. J.N. Mishra Vs. State of U.P.
955
sent to the F.S.L. examination, the F.S.L.
examination report in its report dated
04.09.2010 the expert opined that the said
bullet was engraved with the sign 'E B-1'
when compared with rifle no.AB-93-1985.
It cannot be compared as peculiar feature of
the bullet recovered from inside the body
were completely missing. It is also
mentioned in the F.S.L. report that the
alleged recovered bullet 'E B-1' was in
mutilated and incomplete one. It is shocking
that the doctor has handed over the complete
bullet in a sealed cover but the Investigating
Officer of the case is sending bullet which is
incomplete and mutilated one. Thus, under
the circumstances, the expert has expressed
his inability to give any opinion with regard
to the operation by that rifle. This is classic
example which put grave question mark
about the standard of investigation and the
working of the police. This is a million
dollar question and it is the police who has
to give explanation for this deep rooted
incompetence which has given benefit to the
defence.

Exercise of right of private
defence and its applicability in the
present case

[16] Before coming to the aspect of
the issue, it is imperative that as many as
three named and one unknown person were
made accused in the present case and the
police after holding thorough investigation,
have dropped the name of two named
accused persons namely Ms. Seema and
Nidhi and one unknown person from the
charge sheet. It is admitted fact that, the
deceased Sudhanshu got married with Nidhi
and specific role has been attributed to her
i.e. of exhortation to his father/accused. The
appellant/accused has given deadly blow
upon the deceased, who was her husband.
PW-6,
Surendra
Singh,
S.H.O,
was
entrusted with the investigation, asked his
subordinate Shri Ram Lakhan Singh to
assess the authenticity of this allegation
against Nidhi Mishra as she was entrusted
with positive role. Sri Ram Lakhan Singh
went to Aligarh and after collecting
sufficient material from various quarters,
submitted that on the date and time of the
incident, she was at Aligarh preparing for
her B.A.M.S. examination from Aligarh
University. Therefore, after being satisfied,
the police has dropped the name of Nidhi
Mishra from the charge sheet. It is stated that
these non-charge sheeted named accused
persons were never tried by the prosecution
to summon them in exercise of power under
section 319 Cr.P.C.

[17] Now, coming to the real issue
which has resulted into this unfortunate
incident. The informant Ashok Kumar
Dubey has casted positive story that on the
eve of convening 'panchayat' to resolve the
deep rooted discord between his son and
appellant/accused, after the exhortation made
by Nidhi Mishra, his father/unknown person
has given fire upon his own son-in-law. This
was serious allegation given by the counter
part of the appellant upon his own samdhi and
daughter-in-law. Whereas PW-3, Nawab in his
testimony, has changed the entire texture of the
case. The interesting feature is that PW-3 has
not been declared Hostile by the Court. In his
testimony, PW-3, Nawab, in no uncertain
terms, have revealed that on 03.03.2010 right
in front of his eyes, the police has taken out
one tamancha and 2-3 live cartridges and
blood soaked earth was also taken from the
place of occurrence. PW-3 put a signature over
the recovery of 315 bore tamancha and the
cartridge by the police from the place of
occurrence.

He further stated that he and the
appellant enjoys the common wall in
956 INDIAN LAW REPORTS ALLAHABAD SERIES
between two shops. At that relevant point of
time, he came to the clinic of the appellant.
Tamancha was loaded one and at the
relevant time, neither the informant nor his
wife Smt. Pushpa was present in the clinic.
The accused appellant is having one Nursing
home. The deceased often abused his own
father-in-law on phone and was insisting to
transfer the property(nursing home) in his
name and this was the sole bone of
contention between them. As soon as he
came to the clinic, the deceased pointed out
tamancha upon his father-in-law, the
appellant. It is the body guard/gunner who
has
given
first
blow
upon
Sudhanshu(deceased) apprehending threat
to his master/appellant and the second fire
was given, when Sudhanshu again tried to
eliminate his father-in-law by fixing his
target. This testimony of Nawab assumes
extreme importance as he is independent
witness of the incident as prosecution
witnesses.
He
stated
in
his
crossexamination that :

"अमभयुक्त जगदीश नारायण ममश्रा की दूकान मेरे पड़ोस
में है |मैं घटना के समय अपनी दुकान पर था इस तमंचा में एक कारतूस
लगा हुआ था |घटना के समय मृतक के मपता अशोक कुमार व माता
श्रीमती पुष्पा दुकान पर मौजूद नहीं थे| मुमल्िम का नमसिंग होम बरेली
जलालाबाद रोड पर नया मनममटत है मृतक अमभयुक्त से फ़ोन पर गली
गलोच करता था व नमसिंग होम वाली सम्पमत व अन्य सम्पमत अपने
नाम हस्तानांतरण के मलए कहता था इसी बात का मववाद था | दूकान
पर मुमल्िम के अंगरक्षक हररपाल उफ़ट बब्बा व दो तीन लोग मौजूद
थे |अंगरक्षक ने ही मृतक सुधांशु पर फायर मकया था |दूसरा फायर
घूमकर सुधांशु ने मफर करना चाहा तो अंगरक्षक ने दूसरा फायर मफर
सुधांशु पर मकया |उस समय सीमा व मनमध दूकान पर मौजूद नहीं थे"

[18] From the place of occurrence,
the police has recovered one 315 bore
country made pistol from the right hand of
Sudhanshu(deceased)
and
two
live
cartridges. The natural query is that, if
somebody is going to have 'panchayat' to
resolve the tangle, why anybody would
carry weapon with him? Moreover, when
the son-in-law is going to meet his own
father-in-law and why the father-in-law
would kill his own son-in-law, making her
daughter widow unless and until something
very serious is expecting to occur for the life
and security of father-in-law/appellant
himself.

This issue has to be resolved from
the testimonies of the various witnesses.
There are two parallel stories (i) Father-inlaw has eliminated his own son-in-law on
the exhortation made by her own daughter
Nidhi Mishra as the deceased has declined
the offer to become ghar-jamai. (I) There is
shoot out between accused/appellant and the
deceased son-in-law as he came to meet the
accused-appellant with different design with
weapon in his possession, to eliminate his
own father-in-law for the sake of his
property. Thus, Right of Private Defence is
now claimed by the appellant-accused.

[19] Per contra, counter theory has
been narrated by the accused/appellant that
it is the son-in-law who became greedy and
asking his father-in-law to transfer his entire
property including clinic in his name which
was declined by his father-in-law. On this
score, there was a long drawn bad breath and
differences between the father-in-law and
son-in-law. Infuriated by this, son-in-law
Sudhanshu came on the fateful day with
tamancha of 315 bore and pointed on his
own father-in-law which resulted into
gunning down of his own son-in-law
Sudhanshu in exercise of power of right to
private defence by accused/appellant. The
police has recovered the said tamancha and
prepared its recovery memo. In the "Inquest
report" too, there is reference of alleged
tamancha of 315 bore and its specifications.
Thus, it cannot be said that this tamancha
was planted one. PW-3, Nawab in his
5 All. Dr. J.N. Mishra Vs. State of U.P.
957
testimony and thereafter formal witnesses
have supported this angle of the case.

[20] Learned counsel for the
appellant has strenuously argued that this
unfortunate incident has taken place in
exercise of power of right of private defence
and has pointed out following relevant
sections of IPC in connection with present
case which reads thus :-

The private defence is defined in
Section 96 of IPC which says nothing is
offence which is done in exercise of right of
private defence. Section 97 of IPC provides
that right to private defence of the body and
the property which reads thus :-

"97. Right of private defence of
the body and of property.-

Every person has a right, subject to
the restrictions contained in section 99, to
defend-(First)- His own body, and the
body of any other person, against any
offence
affecting
the
human
body;(Secondly)- The property, whether
movable or immovable, of himself or of any
other person, against any act which is an
offence falling under the definition of theft,
robbery, mischief or criminal trespass, or
which is an attempt to commit theft, robbery,
mischief or criminal trespass."
Section 100 of IPC provides that
when the right of private defence of body
extends of causing death. Section 100 of IPC
is quoted hereinbelow :-
"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:
1.
Such
an
assault
as
may
reasonably cause the apprehension that
death will otherwise be the consequence of
such assault;
2.
Such
an
assault
as
may
reasonably cause the apprehension that
grievous hurt will otherwise be the
consequence of such assault;
3. An assault with the intention of
committing rape;
4. An assault with the intention of
gratifying unnatural lust;
5. An assault with the intention of
kidnapping or abducting;
6. 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.
7.
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."

Section
102
IPC
is
quoted
hereinbelow :-

"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."

[21] In addition to this, learned
counsel for the appellant has relied upon the
judgment of Hon'ble the Apex Court in the
case of Periyasamy Vs. State reported in
(2024) SCC Online SC 314. The Hon'ble
958 INDIAN LAW REPORTS ALLAHABAD SERIES
Apex Court while dealing with the above
aspect of the issue have referred the 'Right
of Private Defence' in paragraph no.18 of
the above judgment which is quoted
hereinbelow :-

"The principle is best captured in
the following words found in Russel on
Crime, 11th Edition Vol.I
"... a man is justified in resisting by
force anyone who manifestly intends and
endeavours by violence or surprise to
commit a known felony against either his
person, habitation or property. In these
cases, he is not obliged to retreat, and may
not merely resist the attack where he stands
but may indeed pursue his adversary until
the danger is ended and if in a conflict
between them he happens to kill his attacker,
such killing is justifiable".

[22] Though, the Right of Private
Defence is nowhere defined in the IPC. It
would depend on the circumstances of each
case that such right is available or not, is
determined within the said boundaries only.
No test in abstract can be laid down for
determining whether the person legitimately
acted in private defence. The law only
provides that a person claiming such right
bears the onus to prove the legitimacy of his
action done in furtherance thereof and it is
not the Court to presume the presence of
such circumstance or the truth in such plea
being taken.

[23] In another judgment in the case
of Darshan Singh Vs. State of Punjab and
another, reported in (2010) 2 Supreme
Court Cases 333 Hon'ble the Apex Court
has mentioned the following principles
regarding Right of Private Defence :-

" 3. The following principles of
right to private defence emerge :-
(i) Self-preservation is the basic
human instinct and is duly recognized by the
criminal jurisprudence of all civilized
countries. All free, democratic and
civilized countries recognize 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 selfcreation.
(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 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 coterminus with the duration of such
apprehension.
(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
necessary for protection of the person or
property.
(vii) 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.
(viii) The accused need not prove
the existenc-e-Of the right of private defence
beyond reasonable doubt.
(ix) The IPC confers the right of
private defence only when that unlawful or
wrongful act is an offence.
5 All. Dr. J.N. Mishra Vs. State of U.P.
959
(x) A person who is in imminent and
reasonable danger of losing his life or limb
may in exercise of self defence inflict any
harm even extending to death on his
assailant either when the assault is
attempted or directly threatened."

[24] Now moot question for
determination are in two fold (I) whether
action of assault on the part of accused
appellant was in exercise of right of
private defence ? (ii) Whether he has
exceeded his limits in exercise of private
defence by giving successive fires upon
the deceased ?

[25] From the aforesaid postulates
propounded by Hon'ble Apex Court, it is
mere reasonable apprehension in the mind
of the accused is sufficient to put a 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 Right of Private Defence. It is enough
that if accused apprehends that such an
offence is contemplated and it is every likely
to be committed if Right of Private Defence
is not exercised. The Right of Private
Defence commences as soon as reasonable
apprehension arises and it is co-terminus
with the duration of such apprehension. It is
unrealistic to expect a person under the
assault to modulate his defence step by step
with arithmetical exactitude. In this regard,
there is yet another judgment relied by
learned counsel for the appellant that in the
case of James Martin Vs. State of Kerala
reported in 2004 Supreme Court Cases
(Cri) 487 , paragraph no.18 of which is
quoted hereinbelow :-

"Situations have to be judged from
the subjective point of view of the accused
concerned in the surrounding excitement
and confusion of the moment, confronted
with a situation of peril and not by any
microscopic and pedantic scrutiny. In
adjudging the question as to whether more
force than was necessary was used in the
prevailing circumstances on the spot it
would be inappropriate, as held by this
Court, to adopt tests by detached objectivity
which would be so natural in a Court room,
or that which would seem absolutely
necessary to a perfectly cool bystander. The
person facing a reasonable apprehension
of threat to himself cannot be expected to
modulate his defence step by step with any
arithmetical exactitude of only that much
which is required in the thinking of a man
in ordinary times or under normal
circumstances."

[26] In this regard, the conditions
formulated in Darshan Singh's case (supra)
is of great importance. Similarly, in the case
of James Martin (supra), it was observed
by
Hon'ble
the Apex
Court
that,
'situations have to be judged from the
subjective point of view of the accused
concerned in the surrounding, excitement
and confusion of moment confronted with
a situation of peril and not by any
microscopic and pedantic scrutiny. In
adjudging the question as to whether more
force then was necessary used in the
prevailing circumstances on the spot, it
would be inappropriate as held by the
court to adopt test by detached objectivity
which would be so natural in a court room,
or that would seem absolutely necessary to
a perfect cool bystander.

A person facing a reasonable
apprehension of threat to himself cannot be
expected to modulate his defence step by
step with any arithmetical exactitude of only
that much which is required in the thinking
of a man in ordinary times or under normal
circumstances.
960 INDIAN LAW REPORTS ALLAHABAD SERIES
[27] Learned counsel for the
appellant has drawn the attention of the
Court to the recent judgment in the case of
Ex. CT. Mahadev Vs. The Direction
General, B.S.F and ors. Reported in 2022
LiveLaw (SC) 551 , paragraph no.21 of
which is quoted hereinbelow :-

"21. To sum up, the right of private
defence is necessarily a defensive right
which
is
available
only
when
the
circumstances
so
justify
it.
The
circumstances are those that have been
elaborated in the IPC. Such a right would be
available to the accused when he or his
property is faced with a danger and there is
little scope of the State machinery coming to
his aid. At the same time, the courts must
keep in mind that the extent of the violence
used by the accused for defending himself or
his property should be in proportion to the
injury apprehended. This is not to say that a
step to step analysis of the injury that was
apprehended and the violence used is
required to be undertaken by the Court; nor
is it feasible to prescribe specific parameters
for determining whether the steps taken by
the accused to invoke private self-defence
and the extent of force used by him was
proper or not. The Court's assessment would
be
guided
by
several
circumstances
including the position on the spot at the
relevant point in time, the nature of
apprehension in the mind of the accused, the
kind of situation that the accused was
seeking to ward off, the confusion created by
the situation that had suddenly cropped up
resulting the in knee jerk reaction of the
accused, the nature of the overt acts of the
party who had threatened the accused
resulting in his resorting to immediate
defensive action, etc. The underlying factor
should be that such an act of private defence
should have been done in good faith and
without malice. "
Learned counsel for the appellant
has further drawn the attention of the Court
to the judgment of Hon'ble Apex Court in
the case of Dharam Vs. State of Haryana
reported in (2007) 15 SCC 241, paragraph
no.61 of which is quoted hereinbelow :-

"18. Thus, the basic principle
underlying the doctrine of the right of
private defence is that when an individual or
his property is faced with a danger and
immediate aid from the State machinery is
not readily available, that individual is
entitled to protect himself and his property.
That being so, the necessary corollary is that
the violence which the citizen defending
himself or his property is entitled to use must
not be unduly disproportionate to the injury
which is sought to be averted or which is
reasonably apprehended and should not
exceed its legitimate purpose. We may,
however, hasten to add that the means and
the force a threatened person adopts at the
spur of the moment to ward off the danger
and to save himself or his property cannot
be weighed in golden scales. It is neither
possible nor prudent to lay down abstract
parameters which can be applied to
determine as to whether the means and force
adopted by the threatened person was
proper or not. Answer to such a question
depends upon a host of factors like the
prevailing circumstances at the spot, his
feelings at the relevant time, the confusion
and the excitement depending on the nature
of assault on him, etc. Nonetheless, the
exercise of the right of private defence can
never be vindictive or malicious. It would be
repugnant to the very concept of private
defence."

[28] Hammering his submissions
on the above quoted observation by the
Hon'ble Apex Court, Sri Hajela, learned
counsel for the appellant underlines, that it
5 All. Dr. J.N. Mishra Vs. State of U.P.
961
is the human psyche at the spur of moment
which reacts to ward of the danger and to
save himself, which is basic human instinct.
It cannot be weighed on any golden scale or
with any mathematical precision. It differs
from person to person, situation to situation
and no steel jacket or airthematical formula
could be propounded to meet out such a
situation. At the time, the accused has to see
how his life could be saved from such a grim
situation, when his opponent has fixed his
target towards him or trying to liquidate him
from the close proximity. Anything could
happen at any time. It is neither possible or
prudent to laid down the abstract parameters
which can be applied to determine as to what
means or force could be used by person
under calamity. He could flee away from the
site or he became aggressor. Answer to such
type of question depends upon the host of
factors, like prevailing circumstance at the
spot, his feeling at relevant time, the
confusion and the excitement depending
upon the nature of assault upon him etc. If
we judge the action of appellant that, it is
clear cut case of the prosecution that
appellant has exceeded his limits while
exercising his valuable right of private
defence by giving successive fires upon the
deceased, ensuring his death. But, if we
examine the testimony of PW-3, Nawab,
who in no uncertain terms states that the
deceased even after receiving first gun shot
upon his person again aimed at the appellant
by his tamancha from a close proximity.
This scenario could be well visualized and
appreciated that the appellant in exercise of
his right of private defence commences as
soon as reasonable apprehension arises and
co-terminus
with
that
duration
that
reasonable apprehension lasts. There cannot
be steel jacket formula that while exercising
this right, only single shot is good enough.
But, fact remains that this exercise of right
of private defence can never be vindictive or
malicious, as it would be repugnant to very
concept of private defence.