# Raj Kumar & Anr v. The State

- **Citation:** (2022) 3 ILRA 168
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-28
- **Case number:** Criminal Appeal No. 1003 of 1982
- **Bench:** Ramesh Sinha, Mrs. Saroj Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-anr-v-the-state-48170
- **Pages:** 16

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) -
Indian Penal Code,1860
- Sections
302/34,
325/34-challenge
to
-
conviction-murder-no prior meeting of
mind-when
the
deceased's
side
complained about the destruction of
paddy crop by the appellant's cattle,
the appellants got enraged and went
inside their houses and came back with
their respective weapon-appellant no.2
assaulted the deceases with lathi and
gunshot injury caused by appellant no.1
who are cousins and they live in
separate houses which are adjacentnothing on record to suggest that they
planned with each other to kill the
deceased-Hence, both the appellants
would be liable for their individual actappellant no. 2 is realesed from jail uon
completion
of
sentence
awarded
whereas appellant no. 1 shall serve the
sentence of life imprisonment.(Para 1
to 31)

B. To establish a case u/s 34 of IPC
prosecution has to prove prior meeting
of minds which may be determined
from the conduct of the offenders
unfolding itself during the course of
action and the declaration made by
them just before mounting the attack
and it can also be developed at the spur
of the moment, but there must be prearrangement or premeditation concert.
(Para 24, 25)

The appeal is partly allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,975 of 54,369. This is a partial read: ask again with offset=39975 for what follows._

168 INDIAN LAW REPORTS ALLAHABAD SERIES
appearing on behalf of appellant no.1-
Puttan in the instant appeal.

61. Let a certified copy of this order
as well as lower Court record be
transmitted to the Court concerned for
necessary information and compliance
forthwith.
----------
(2022)03ILR A168
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.03.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MRS. SAROJ YADAV, J.

Criminal Appeal No. 1003 of 1982

Raj Kumar & Anr. ...Appellants
Versus
The State ...Respondent

Counsel for the Appellants:
Sri Jai Pal Singh, Amirucs Curiae for the
appellant no. 1

Counsel for the Respodent:
Sri Sheikh Wali-Uz Zaman, counsel for the
appellant no. 2

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) -
Indian Penal Code,1860
- Sections
302/34,
325/34-challenge
to
-
conviction-murder-no prior meeting of
mind-when
the
deceased's
side
complained about the destruction of
paddy crop by the appellant's cattle,
the appellants got enraged and went
inside their houses and came back with
their respective weapon-appellant no.2
assaulted the deceases with lathi and
gunshot injury caused by appellant no.1
who are cousins and they live in
separate houses which are adjacentnothing on record to suggest that they
planned with each other to kill the
deceased-Hence, both the appellants
would be liable for their individual actappellant no. 2 is realesed from jail uon
completion
of
sentence
awarded
whereas appellant no. 1 shall serve the
sentence of life imprisonment.(Para 1
to 31)

B. To establish a case u/s 34 of IPC
prosecution has to prove prior meeting
of minds which may be determined
from the conduct of the offenders
unfolding itself during the course of
action and the declaration made by
them just before mounting the attack
and it can also be developed at the spur
of the moment, but there must be prearrangement or premeditation concert.
(Para 24, 25)

The appeal is partly allowed. (E-6)

List of Cases cited:

1. Madan Mohan Pandey Vs St. of U.P. (1991)
CRI. L.J. 467 (SC)

2. Rasikhbhai Ram Singh Rana & anr Vs St. of
Guj. & Ors (1999) CRI. L.J 1975 (Guj. HC)

3. Rizan & anr. Vs St. of Chhatisgarh, thru Chief
Secretary, Govt. of Chhatisgarh, Raipur (2003)
AIR SC 976.

4. Ranjitham Vs Basavraj & ors. (2012) CRI. L.J.
2135

5. Arjun Vs St. of Mah. (2012) AIR SC 2181

6. Reena Hazarika Vs St. of Assam (2018) AIR
SC 5361

7. Jangir Singh Vs St. of Punj. (2019) (1) CCSC
185 SC

8. Bhanwar Singh Vs St. of M.P. (2008) 16 SCC
657: (2008) 3 CCSC 1394 SC

9. Jaspal Vs St. of U.P. (2020) 110 ACC 119

10. Jasdeep Singh @ Jassu Vs St. of Punj.
(2022)
Live
Law
SC
19
3 All. Raj Kumar & Anr. Vs. The State
169
(Delivered by Hon'ble Mrs. Saroj Yadav, J.)

1. This Criminal Appeal has been
filed by the appellants/convicts Raj Kumar
and Raj Kishore against the judgment and
order dated 18.12.1982 passed by Sri I.N.
Thakral VIIth Additional Sessions Judge,
Hardoi in Sessions Trial No.144 of 1982
arising out of Crime No.926 of 1981,
Police Station Kotwali, District Hardoi,
wherein the appellants were held guilty and
convicted under Section 302 read with
Section 34 of Indian Penal Code, 1860 (in
short I.P.C.) with imprisonment for life and
a fine of Rs.1,000/- (one thousand). The
appellants were also convicted under
Section 325 read with Section 34 of I.P.C.
with imprisonment of two years and a fine
of Rs.500/-(five hundred).

2. Heard Sri Jai Pal Singh, learned
Amicus Curiae for the appellant no.1- Raj
Kumar, Sri Sheikh Wali-Uz Zaman, learned
counsel for the appellant no.2-Raj Kishore
and Sri Vishwash Shukla, learned A.G.A
for the State respondent.

3. The facts necessary for disposal of
this appeal as culled out are as under:-

i. A First Information Report (in
short F.I.R.) was registered at Crime
No.926 of 1981 on the basis of written
report presented by Ramesh Chand son of
Ram Saran at Police Station Kotwali
Hardoi on 22.11.1981 at about 4:45 P.M..
In the written report it was alleged that on
22.11.1981 at about 3:00 P.M. the uncle of
the complainant went to his paddy-field
and found that the cattle of Raj Kumar
were grazing and destroying the paddycrop. His uncle after ousting the cattle from
the field went to house of Raj Kumar at
about 3:30 P.M. to make a complaint about
the same, there Raj Kumar and Raj Kishore
met and when his uncle complained about
the cattle, they said that he was accusing
them falsely. After that Raj Kumar brought
a gun and Raj Kishore a stick (lathi) from
their houses and said just wait they will tell.
Upon it his uncle raised a hue and cry,
hearing a noise the complainant, his father
Ram Saran and Nigendra Nath, Munshi,
Ram Pal and many other people reached
there. Thereafter Raj Kishore assaulted his
uncle Prabhu Dayal with stick and Raj
Kumar fired with gun on his father (the
father of the complainant) which hit him
and he died on the platform (Chabutara) in
front of the house of appellants. Upon
challenge made by all present there, both
Raj Kumar and Raj Kishore ran away
towards south.

ii. After investigation chargesheet
was submitted in the Court, the concerned
Magistrate
after
taking
cognizance
committed the case to the Sessions Court
for trial. The trial court framed charges
against accused persons on 03.09.1982
under Section 302 read with Section 34 of
I.P.C.
and
Section
323
of
I.P.C..
Subsequently the trial court amended the
charges framed under Section 323 of I.P.C.
and framed charge under Section 325 read
with Section 34 of I.P.C. on 06.12.1982.
The appellants denied the charges and
claimed to be tried.

iii. The prosecution in order to
prove its case examined nine witnesses in
all. P.W. 1 Dr. S.N. Singh, Medical Officer,
District Hospital Hardoi, P.W. 2 Ramesh
Chandra, complainant, P.W. 3 Dr. U.D.
Kapoor, District Hospital Hardoi, P.W. 4
Yashpal
Singh
Girewal,
Senior
Sub
Inspector, P.W. 5 Prabhu Dayal uncle of the
complainant and injured, P.W. 6 Head
Constable Rajendra Kumar, and P.W. 7
Constable Sunil Kumar, P.W.

8
Munshi an independent eye witness and
P.W. 9 Sri R.S. Verma, Sub Inspector. Apart
170 INDIAN LAW REPORTS ALLAHABAD SERIES
from the oral evidence the documents
Exhibit Ka-1 to Exhibit Ka-18 were proved
and exhibited. These are:-

Injury report of injured Prabhu
Dayal Exhibit Ka-1, written report Exhibit
Ka-2, postmortem report of deceased Ram
Saran Exhibit Ka-3, charge-sheet Exhibit
Ka-4, chick report Exhibit Ka-5, general
diary (G.D.) Exhibit Ka-6, inquest report
Exhibit Ka-7, Form No.379 Exhibit Ka-8,
Police Form No.13 Exhibit Ka-9, report to
C.M.O. for conducting postmortem Exhibit
Ka- 10, specimen of seal Exhibit Ka-11,
site plan of spot where incident took place
Exhibit Ka-12, site plan of the place where
fields were damaged by cattle Exhibit Ka13, memo of blood stained and plain soil
Exhibit Ka-14, search-memo of accused
Raj Kumar regarding weapon of offence,
Exhibit Ka-15, search memo of accused
Raj Kishore regarding weapon of offence
Exhibit Ka-16, report of Forensic Science
Laboratory regarding soil collected from
the spot Exhibit Ka-17 and report of
Forensic Science Laboratory regarding
blood stains found on the clothes of the
deceased Exhibit Ka-18.

iv. Thereafter the statement of the
appellants were recorded under Section 313
of the Code of Criminal Procedure (in short
Cr.P.C.), wherein they denied the incident
and stated that report has been lodged
falsely. Appellant Raj Kishore further stated
that witnesses have deposed being relatives
of the deceased and he has been implicated
in the crime due to the enmity of village
party- bandi. Appellant Raj Kumar has also
stated that Prabhu Dayal is the brother and
Ramesh Chand is the son of the deceased.
Witness Munshi is Bataidar (share-cropper
) of Prabhu Dayal and supervise all his
work. He has further stated that he and his
brother were going towards field, at the
same place his orchard is also there. He,
after looking the field went towards the
orchard and found that Prabhu Dayal was
collecting woods from his orchard, he
objected, then Prabhu Dayal abused him.
On this he assaulted Prabhu Dayal with
stick. Prabhu Dayal ran away towards his
house abusing the appellant and said that he
(Prabhu Dayal) will see him. Thereafter the
appellant went to his house. About after
one hour Ram Saran, Satish and six to
seven other persons of the village came
there.
Ram
Saran
was
armed
with
(tamancha)
country
made
pistol.
He
(appellant Raj Kumar) was collecting the
paddy which was drying in front of his
house. They (persons of complainant side)
challenged him (Raj Kumar) to kill and set
ablaze his house. Upon it he entered his
house and closed the door. He also raised
noise to save himself. Then Satish asked his
companions to enter into the house and kill
him, upon it he brought the gun of his
father from the house. Ram Saran climbed
over the wall and loaded the cartridge in
tamancha (country made pistol). His (Raj
Kumar) gun was already loaded, as soon as
Ram Saran aimed towards him he fired
upon him with the gun to save himself.
After being injured Ram Saran fell down
from the wall. On noise raised by him, Ram
Sewak, Lakhan and other people of the
village came there and challenged Ram
Saran, thereafter he (Raj Kumar) ran away
and hid in the village.

v. The trial court after hearing the
arguments of both the parties and analyzing
the evidence available on record came to
the conclusion that prosecution has proved
the motive, place of occurrence and the
commission
of
crime
by
the
accused/appellants, by the testimony of all
the three witness of facts i.e. Ramesh
Chand, the complainant, Prabhu Dayal the
injured brother of deceased and Munshi Lal
an
independent
witness.
The
First
Information Report of the case was lodged
3 All. Raj Kumar & Anr. Vs. The State
171
promptly at the police station at about 4:45
P.M.
and
investigation
also
started
immediately in the matter. The trial court
did not convince with the arguments raised
by the defence that the factum of injuries of
Prabhu Dayal was not mentioned in the
inquest report, as the witness Munshi Lal
has signed Panchnama as Panch, but he did
not tell about the fact that Raj Kishore
inflicted lathi blow on Prabhu Dayal giving
reasons that the inquest report is about the
dead body of Ram Saran, the deceased.
Trial Court has further concluded that the
evidence of three eye-witnesses of facts has
further been corroborated with medical
evidence of P.W.1 Dr. S.N. Singh who has
proved injury report of Prabhu Dayal and
has stated that he (Prabhu Dayal) received
grievous injury which could be caused on
22.11.1981 at about 3:30 PM with lathi.
P.W.3 Dr. U.D. Kapoor conducted the
postmortem on the cadaver of deceased
Ram Saran and found following antemortem injuries:-

"(i) One fire arm wound of entry
3 cm x 2 cm x chest cavity deep on right
side of front of chest at third intercostal
space just below the right border of
sternum. Margins inverted and lacerated.
No blackening no charring. This wound is
surrounded by multiple fire arm/wounds of
entry in the area of 15 cm x 8 cm from right
nipple to mid clavicular line on left side
each of the size 0.2 cm x 0.25 cm x skin to
chest cavity deep.

(ii) Lacerated wound 8 cm x 3.5.
cm on lateral side of right fore arm 3 cm
above wrist joint. Radious bone is fractured
under-neath."

On
internal
examination
the
doctor found that second, third and fourth
right ribs were broken and right side lung
badly lacerated and left lung lacerated at
some places. In his opinion the death was
caused due to shock and hemorrhage
caused by ante-mortem injuries. He has
also opined that death would have been
caused on 22.11.1981 and these injuries
were sufficient in the ordinary course of
nature to cause death. In the opinion of trial
court
the
medical
evidence
is
in
corroboration of ocular account given by
the eye-witnesses of the case. The learned
trial court did not accept the theory of
exercise of right of private defence put
forward by the appellant Raj Kumar. The
accused Raj Kumar took a defence that he
fired upon the deceased in order to save his
life, as the deceased was trying to kill him
with country made pistol. To support his
theory of private defence, accused Raj
Kumar
examined
D.W.1,
who
was
disbelieved by the trial court. The trial
court has found his conduct suspicious,
prior enmity with Prabhu Dayal was also
established and some contradictions were
also found.

vi. The trial court also concluded
that evidence on record establishes that
accused Raj Kumar entered in his own
house, closed the doors when the deceased
and his companions challenged him. He
was behind the closed doors inside the
house. According to the site plan exhibit
Ka-12, there were many rooms inside the
house, he would have entered in any of the
rooms to save his life, there was no chance
of his being shot at from the wall as is
stated by Raj Kumar. Further there was
another
main
gate
opening
towards
northern side of his house, he had full
opportunity of exit from that gate, to have
recourse of law for his safety. Section 99 of
I.P.C. provides certain circumstances in
which there is no right of private defence
and one of such provision is that there is no
right of private defence in the cases where
there is time to have recourse of the public
authorities for protection. In the given
circumstances, accused Raj Kumar had full
172 INDIAN LAW REPORTS ALLAHABAD SERIES
opportunity to save himself and to have the
recourse of law. Further there was no
eminent danger to his life or property. In
the given circumstances, he has no right of
private defence. Giving these main reasons,
the learned trial court rejected the defence
of the accused Raj Kumar i.e. right of
private defence. It has further been
observed by the trial court that as per the
version of Raj Kumar, pistol has been
shown in the hands of Ram Saran who had
fallen from the wall after being shot at
Chabutara, but there is no mention of it,
where that tamancha had gone. Suggestion
was made to P.W. 9 that pistol was lying
near the dead body, but was not shown in
the inquest report which was denied by
him. In this regard D.W. 2 says nothing
about that pistol was being seen by him at
Chabutara near the dead body, instead he
says that one Satish ran away with his
pistol in hand. This theory of two pistols
with the prosecution side is a new story
developed by Lakhan D.W.2.

vii. Analyzing and concluding
as aforesaid, the learned trial court came
to the conclusion that prosecution has
established that Raj Kishore inflicted
lathi blow on Prabhu Dayal causing him
grievous hurt and accused Raj Kumar
fired with his gun at Ram Saran killing
him at his Chabutara. Prosecution has
proved the place, date and time of
occurrence and also that the offence was
committed
by
the
accused
persons/appellants. The trial court further
concluded that Raj Kishore and Raj
Kumar have common intention to kill the
deceased so Raj Kishore was also held
guilty under Section 302 read with
Section
34
of
I.P.C.
Both
the
accused/appellants were also held guilty
under Section 325 read with section 34 of
I.P.C. for causing grievous hurt to Prabhu
Dayal and convicted accordingly.

4. Being aggrieved of this conviction
this
appeal
has
been
filed
by
the
appellants/convicts.

5. Learned Amicus Curiae appearing
for Raj Kumar argued that initially F.I.R.
was registered under Sections 307/323 of
I.P.C., but after investigation chargesheet
submitted under Section 302/323/34 IPC
against both the appellants. The charges
were framed against the appellant No.1 Raj
Kumar under Sections 302 & 323 read with
section 34 of I.P.C and later on charge
under section 323 of I.P.C. was converted
to Section 325/34 I.P.C. Against appellant
No.2-Raj Kishore also charges were framed
under Sections 302 & 323 read with section
34 of I.P.C. later on charge under Section
323/34 of I.P.C. was converted to Section
325/34 I.P.C. The conviction is against the
evidence on record and the findings of the
trial court are perverse. The witnesses are
related witnesses P.W.2 is the son of the
deceased Ram Saran and P.W. 5 Prabhu
Dayal is the real brother of the deceased.
P.W.8 Munshi Lal is the share-cropper
(Bataidar) of Prabhu Dayal. They have
deposed falsely. He further argued that in
the F.I.R. it has been alleged that cattle of
appellant Raj Kumar were grazing the
paddy crop of Pabhu Dayal, but in the
inquest report and also in statements under
Section 161 of Cr.P.C. of Smt. Raj Rani and
Ramesh Chandra, there is mention of
sugarcane
crop.
The
witnesses
have
deposed that appellant Raj Kumar fired
upon Ram Saran from a close distance of
about 2 paces/5ft., but in the post-mortem
report no blackening and charring was
found. There is no proper explanation of
injury No.2 found in the post-mortem
report on the person of deceased. In fact the
appellant Raj Kumar had acted in exercise
of right of private defence as the deceased
alongwith six to seven persons armed with
3 All. Raj Kumar & Anr. Vs. The State
173
deadly weapons, reached at the house of
appellant and appellant had eminent danger
to life and property, as they threatened to
kill the appellant Raj Kumar and also to set
ablaze his house. He further argued that
deceased aimed at appellant Raj Kumar
with a country made pistol after climbing
on the wall of the house of the appellant,
then appellant fired upon the deceased and
he died. He further argued that learned trial
court did not appreciate the evidence in
right perspective and did not accept the
theory of private defence, while there was
evidence and circumstances pointing out
sufficiently that appellant Raj Kumar acted
in exercise of right of private defence and
nothing is offence which is done in the
exercise of right of private defence. Hence
accused Raj Kumar should be acquitted.

6. Learned Amicus Curiae for the
appellant Raj Kumar relied upon the
following case laws:-

a. Madan Mohan Pandey Vs.
State of U.P. 1991 CRI. L.J. 467 (SC)

b. Rasikbhai Ram Singh Rana
and another Vs. State of Gujarat and

others 1999 CRI. L.J. 1975 (Gujarat
High Court)

c. Rizan and another Vs. States
of Chhatisgarh, through the Chief

Secretary, Govt. of Chhatisgarh,
Raipur AIR 2003 (SC) 976.

d. Ranjitham Vs. Basavaraj and
others 2012 CRI. L.J. 2135.

e.
Arjun
Vs.
State
of
Maharashtra AIR 2012 SC 2181

f. Reena Hazarika Vs. State of
Assam AIR 2018 (SC) 5361.

7. Learned counsel for the appellant
Raj
Kishore
submitted
that
he
is
challenging the judgment on one single
point i.e. his offence travels only up to the
limit of Section 325 of I.P.C. for causing
injury to Prabhu Dayal, P.W.5, he has no
concern with the death of Ram Saran. He
did not participate in the offence with prior
meeting of mind with appellant Raj Kumar.
He further submitted that as per version of
the prosecution, appellant Raj Kishore went
inside his own house and appellant Raj
Kumar went inside his own house and they
both came out afterwards with their
respective weapons in their hands and acted
accordingly, so there remains no space for
prior meeting of minds and any common
object or intention to commit murder of
deceased Ram Saran. He further submitted
that appellant is liable to the offence
committed under Section 325 of I.P.C. only.

8. Contrary to the submissions made
on behalf of appellant -Raj Kumar and
appellant Raj Kishore, learned A.G.A.
argued that the contention of the learned
Amicus Curiae for appellant Raj Kumar
alleging the right of private defence is not
worthy of credence because as per the
version of the appellant Raj Kumar and his
witness DW (2), five to six persons reached
the house of the appellant Raj Kumar to kill
him armed with deadly weapons like
country made pistol, Bhala (Spear), Lathi
(stick) etc., but no injury of any type was
sustained by either of the appellants or any
of their family members or any damage to
their property. Appellant Raj Kumar has
stated in her statement under section 313
Cr.P.C. that deceased Ram Saran climbed
on the wall of his house armed with
country made pistol and aimed towards him
with intention to kill him (Raj Kumar), so
he fired upon deceased and he fell down
from the wall and died, but no such weapon
was recovered near the body of the
deceased. There is nothing on record that
after the death of the deceased somebody
took away the weapon of the deceased.
174 INDIAN LAW REPORTS ALLAHABAD SERIES
Enmity of D.W.2 with the family of
complainant was also admitted. Learned
A.G.A. further argued that even if there
was any danger to appellant Raj Kumar to
his life and property, that danger was not
eminent and there was time to take recourse
of the public authorities. Hence the theory
put forward, of exercise of right of private
defence is not worthy of acceptance.

9. Learned A.G.A., about the
submission of the appellant Raj Kishore
argued that both the appellants are cousins
and they both came out of house with
common
object/intention
to
kill
the
deceased and to injure the persons of
complainant side. Hence the appeal should
be dismissed.

10. Considered the submissions made
by the learned counsel for both the
appellants as well as learned A.G.A., also
perused the record including the impugned
judgment and referred case laws.

11. The incident of firing upon the
deceased Ram Saran by Raj Kumar is
admitted at the date time and place,
qualified with a claim that he fired upon the
deceased Ram Saran in exercise of right of
private defence of person and property, as
the deceased alongwith other five to six
persons reached the house of Raj Kumar,
and he closed himself inside the house then
deceased Ram Saran climbed on the wall of
his house armed with country made pistol
and aimed on him with an intention to kill,
so he took out the licensed gun of his father
and as soon as Ram Saran loaded his
country made pistol and aimed at him (Raj
Kumar), he (Raj Kumar) fired upon Ram
Saran and he (Ram Saran) fell down from
the wall after getting injured and died. Now
only
question
remains
whether
the
appellant Raj Kumar acted in exercise of
right of private defence or he committed
the murder of the deceased Ram Saran, as
he went there to complain about the
destruction of paddy-field by the cattle of
Raj Kumar.

12. The contention made by the
counsel for Raj Kumar that in the inquest
report there is mention of sugarcane and
not of paddy-field, while the witnesses
have mentioned about the paddy-field,
makes no difference because inquest report
is prepared about the condition of the deadbody and to ascertain the prima facie cause
of the death. P.W.1 and P.W.2 have clearly
stated in their evidence that they told to the
Investigating Officer about the destruction
of paddy-field and not of sugarcane-field.
In the site-plan also there is no mention of
sugarcane-field
by
the
Investigating
Officer.

13. As far as right of private defence
is concerned, the law as contained in
Section 96 to 106 of I.P.C. relevant sections
are quoted herein below:-

"96. Things done in private
defence- Nothing is an offence which is
done in the exercise of the right of private
defence.

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.
3 All. Raj Kumar & Anr. Vs. The State
175

99. Act against which there is no
right of private defence:- There is no right
of private defence against an act which
does
not
reasonably
cause
the
apprehension of death or of grievous hurt,
if done, or attempted to be done, by a
public servant acting in good faith under
colour of his office, though that act, may
not be strictly justifiable by law.

There is no right of private
defence against an act which does not
reasonably cause the apprehension of death
or of grievous hurt, if done, or attempted to
be done, by the direction of a public servant
acting in good faith under colour of his
office, though that direction may not be
strictly justifiable by law.

There is no right of private
defence in cases in which there is time to
have recourse to the protection of the
public authorities.

Extent to which the right may be
exercised:--The right to Private defence in
no case extends to the inflicting of more
harm that it is necessary to inflict for the
purpose of defence.

Explanation 1: - A person is not
deprived of the right of private defence
against an act done, or attempted to be
done, by a public servant, as such, unless
he knows or has reason to believe, that the
person doing the act is such public servant.

Explanation 2: - A person is not
deprived of the right of private defence
against an act done, or attempted to be
done, by the direction of a public servant,
unless he knows, or has reason to believe,
that the person doing the act is acting by
such direction, or unless such person states
the authority under which he acts, or if he
has authority in writing, unless he produces
such authority if demanded.

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.

Section102. 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.

103. When the right of private
defence of property extends to causing
death:- The right of private defence of
property extends, under the restrictions
mentioned in Section 99, to the voluntary
causing of death or of any other harm to
the
wrong-doer,
if
the
offence,
the
committing of which, or the attempting to
176 INDIAN LAW REPORTS ALLAHABAD SERIES
commit which, occasions the exercise of the
right, be an offence of any of the
descriptions
herein
after
enumerated,
namely;

First-Robbery;

Secondly-House-breaking
by
night;

Thirdly-Mischief
by
fire
committed on any building, tent or vessel,
which building, tent or vessel is used as a
human dwelling, or as a place for the
custody of property;

Fourthly-
Theft,
mischief
or
house-trespass, under such circumstances
as may reasonably cause apprehension that
death or grievous hurt will be the
consequence, if such right of private
defence is not exercised.

105.
Commencement
and
continuance of the right of private defence
of property:- The Right of private defence
of property commences when a reasonable
apprehension of danger to the property
commences.

The right of private defence of
property against theft continues till the
offender has effected his retreat with the
property or either the assistance of the
public authorities is obtained, or the
property has been recovered.

The right of private defence of
property against robbery continues as long
as the offender causes or attempts to cause
to any person death or hurt or wrongful
restraint of as long as the fear of instant
death or of instant hurt or of instant
personal restraint continues.

The right of private defence of
property against criminal trespass or
mischief continues as long as the offender
continues in the commission of criminal
trespass or mischief.

The right of private defence of
property against house-breaking by night
continues as long as the house-trespass
which has been begun by such housebreaking continues.

14. The plain reading of section 99
quoted above shows that there is no right of
private defence against an act which does
not reasonably cause the apprehension of
death or a grievous hurt. There is also no
right of private defence in cases in which
there is time to have recourse to the
protection of the public authorities.

15. In the present matter the appellant
Raj Kumar has stated that he and his cousin
reached in their orchard then they found
that Prabhu Dayal was collecting woods
from his orchard, he objected then Prabhu
Dayal started abusing him, on it he (Raj
Kumar) assaulted Prabhu Dayal with stick,
thereafter Prabhu Dayal ran away towards
his house abusing him. Appellant also went
to his house. Thereafter deceased Ram
Saran, Satish and six to seven other persons
about after one hour reached his (Raj
Kumar's) house. Ram Saran was armed
with country made pistol. He (Raj Kumar)
was collecting the paddy which were
drying
outside
the
house. They
all
challenged him and also said that set his
house at ablaze. He entered into his house
and closed the door. He also raised noise in
order to save himself at the same time
Satish instigated Ram Saran to enter his
(Raj Kumar's) house and kill him. On it he
picked up his father's licensed gun and as
soon as Ram Saran aimed upon him with
country made pistol, he (Raj Kumar) fired
upon Ram Saran.

16. As per version of appellant Raj
Kumar the persons of complainant side
who reached there were six to seven in
number. Among them Ram Saran was
armed with country made pistol. D.W.2
who has been examined as defence witness
3 All. Raj Kumar & Anr. Vs. The State
177
to prove the theory of private defence has
stated that on the date of incident at about
04:00 - 04:30 hours Ram Saran was killed
and he witnessed the incident as he was
coming back from his shop at that time. He
was about 40 paces away from the house of
the appellant Raj Kumar, on the way he
heard a noise coming from the house of Raj
Kumar. Raj Kumar was crying for the help
and saying that they would kill him. When
he reached at the house of Raj Kumar, he
heard that Satish was asking, to enter into
the house of Raj Kumar and kill him. He
has further stated that he saw that Ram
Saran was standing on the eastern wall of
the house of Raj Kumar. Ram Saran was
standing on the Kachcha wall (made of
soil). He has further stated that Ram Saran
took aim towards eastern side, thereafter he
heard the sound of fire and saw that Ram
Saran fell down on the ground. He reached
there, then Ram Sewak asked not to go
there as Ram Saran had died. He has
further stated that he saw Satish and six to
seven other people accompanying Satish
while running. He has further stated that he
saw a country made pistol in the hands of
Satish and rest six to seven persons were
armed with Lathis (sticks) and bhalas
(spears). In his cross examination this
witness has stated that he neither saw
Prabhu Dayal nor Ramesh at the spot.
When he was asked why he did not stop
Ram Saran from firing with country made
pistol, he said he was at a great distance so
he could not say anything. Further when he
was asked in the cross examination by the
prosecution why you have not told all these
facts to the Investigating Officer or any
other person, then he could not give any
satisfactory answer. He has also stated that
the dead-body of Ram Saran remained
lying there at the platform up to the time
when police came. He further stated that he
did not know when police came there. He
came back to his house after six to seven
minutes of the incident. He has also stated
in his cross-examination that he did not tell
anybody about the incident except one
constable who came to his house to take
''Bidi'. He has also stated in the crossexamination that he did not met Raj Kumar
after the incident till date i.e. the date of
recording of evidence. He has also stated
that he did not tell about the manner of
commission of incident even to the family
members of the appellant. From the reading
of statement of this witness it appears that
he was not present at the spot and he did
not see anything because he has stated that
he saw a country made pistol in the hands
of Satish and lathis and spear in the hands
of other six to seven persons, but there is
no mention about fire arm in the hands of
Satish and lathis and Bhalas (spears) in the
hands of six to seven other persons by the
appellant Raj Kumar in his statement made
under Section 313 of Cr.P.C.

17. Further more another appellant
Raj Kishore, who is the real cousin of
appellant Raj Kumar has not stated
anything about the exercise of right of
private defence or to say he has stated
nothing about the exercise of right of
private defence by the appellant Raj
Kumar. No country made pistol was
recovered from the dead body or near the
dead body of the deceased. The appellant
did not receive any kind of injury to his
person and no damage was caused to his
property. In the site-plan Exhibit Ka-12
another
main
gate
opening
towards
northern side of the house of appellant Raj
Kumar has been shown and there were
number of rooms inside his house. The
appellant Raj Kumar had full opportunity
to escape from that gate to take recourse of
law for saving himself and his property, if
there was any danger. Without receiving
178 INDIAN LAW REPORTS ALLAHABAD SERIES
any bruise on person of himself or the near
or dear one or any damage to property he
fired upon the deceased. The evidence and
circumstances narrated and the evidence
available on record does not establish or
point out that appellant Raj Kumar acted in
exercise of right of private defence.

18. The case law Rasikbhai Ram
Singh Rana and another Vs. State of
Gujarat and others (Supra) is of no help to
the appellant Raj Kumar because in that
case accused suffered injuries, but in the
present matter there no injury has been
alleged or found on the person of the
appellant.

19. The case law Madan Mohan
Pandey Vs. State of U.P. (supra) is also of no
help to the appellant because in this matter
the Hon'ble Apex Court held that "where the
accused has not received any injuries and the
injuries received by some of defence witness
were simple, the accused must be said to have
exceeded his right of private defence when he
had fired six shots indiscriminately, killing
one and injuring six injuries on the others". In
the present matter no injury of any kind was
sustained by appellant or any other family
member or any damage caused to the
property.

20. In the case of Rizan and another
Vs. State of Chhatisgarh (supra) the
Hon'ble Apex Court has held that "it is true
that the burden of an accused person to
establish the plea of self-defence is not as
onerous as the one which lies on the
prosecution and that, while the prosecution
is required to prove its case beyond
reasonable doubt, the accused need not
establish the plea to the hilt and may
discharge his onus by establishing a mere
preponderance of probabilities either by
laying basis for that plea in the cross-
examination of the prosecution witness or
by adducing defence evidence. The accused
need not prove the existence of the right of
private defence beyond reasonable doubt. It
is enough for him to show as in a civil case
that the preponderance of probabilities is in
favour of his plea."

21. Learned Amicus Curiae for the
appellant Raj Kumar citing this case law
argued that appellant Raj Kumar has to
create a doubt and he has not to establish
the circumstances relating to right of
private defence beyond reasonable doubt.
Hence the theory of right of private defence
should be believed. The contention of
learned Amicus Curiae is not acceptable
because the appellant was not even able to
prove the circumstances leading to exercise
of right of private defence upto the level of
preponderance of probabilities in his
favour. Rest of the case laws cited for the
appellant are also not in support of the
appellant because the circumstances on the
record
does
not
establish
even
by
preponderance of probabilities that the
appellant Raj Kumar acted in exercise of
right of private defence.

22. Hon'ble the Apex Court in the
case of Jangir Singh Vs. State of Punjab
2019(1) CCSC 185 (SC) has held as
under:-

"10.
Before
proceeding
any
further, it is essential to putforth things that
are to be considered by the Courts, while
giving benefit of right to private defence to
the accused, as per Exception II to Section
300 of IPC, to determine the quantum of
this right. This Court in the case of Vidhya
Singh v. State of Madhya Pradesh,
observed that-

"7. The right of self-defence is a
very valuable right. It has a social purpose.
3 All. Raj Kumar & Anr. Vs. The State
179
That right should not be construed
narrowly."

Further, in the case of James
Martin v. State of Kerala, following
observations were made by this Court:-

"18. Situations have to be judged
from the subjective point of view of the
accused concerned (1971) 3 SCC 244 2
(2004) 2 SCC 203 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."

Similarly, in the case of Darshan
Singh v. State of Punjab, this Court went
further and gave few parameters to adjudge
the exercise of right to private defence in
following terms:-

" 56. In order to find out whether
the right of private defence is available or
not, the injuries received by the accused,
the imminence of threat to his safety, the
injuries caused by the accused and the
circumstances whether the accused had
time to have recourse to public authorities
are all relevant factors to be considered."

11. Further, it is a settled law that
the right to private defence cannot be
claimed by the accused, if disproportionate
harm has been caused, while defending
himself or any other person. However, if
the accused has not caused disproportionate
harm, then the benefit of Exception II to
Section 300 of IPC can be given to the
accused. This proposition has been well
explained in the case of Bhanwar Singh v.
State of Madhya Pradesh, (2008) 16 SCC
657 : 2008 (3) CCSC 1394 (SC), wherein
this
Court
made
the
following
observations:-

"50. The plea of private defence
has been brought up by the appellants.