# MOHINDER PAL JOLLY v. STATE OF PUNJAB

- **Citation:** [1979] 2 S.C.R. 805
- **Court:** Supreme Court of India
- **Decided:** 1978-12-14
- **Case number:** Criminal Appeal No. 118 -Of 1972
- **Bench:** N. L. Untwalia, 0. Chinnappa Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mohinder-pal-jolly-v-state-of-punjab-7639
- **Pages:** 11

## Headnote

B
Indian Penal Code, 1860 (Act 45 of 1860) Ss. 99, IOI, 103, 302, 303 and
304.
Factory owner fired from revolver on workers agitating for ·wages outside
factory-Death of a worker-Accused claiming right of private defence of property and person-Right when available-Accused if should be convicted and
sentenced under Part-II of. Section 304 and not Part-l.
There was h dispute between the appellant, a factory owner and his emC
ployees in regard to wages, during the period of their lay-off.
The prosecution alleged that on the day of th~ occurrence when the workers
gathered outside the factory and raised innocuous slogans
demanding
their
wages, the appellant came out and fired a .shot from his revolver, which hit a
worker resulting in his death.
The ::ippellant on the other hand alleged that a large number of labourers
who collected outside the factory, shouted very abusive slogans, threatening that
they would not k.ave him alive and showered brickbats at the factory premises
causing damage to the appellant's property.
Apprehending im1n1nent danger
to his life and property, his driver fired a shot from the revolver which
resulted in the death of the deceased.
The trial court, with whose findings the High Court agreed, found that the
\\'orkers might hav" hurled brickbats into the factory premises; but they did not
break the barbed wire on the boundary wall nor did they try to scale
the
boundary wall. that they did not carry any sticks, that no brickbats hurled by
the workers could enter the appellant's office and therefore his version that
some brickb:its damaged the glass on his office table was incorrect and that it
was the appellant and not his driver that fired his revolver which resulted in the
death of the Otceased. The High Court, agreeing with the trial court, held that
though the appellant had the right of private defence of property it did not go
to the extent of causing death and, therefore, he exceeded his right of private
defence. Holding that the offence fell under Exception 2 to s.
300 IPC the
High Court convicted him under s. 304, Part-I.
In appeal to this Court it was contended on behalf of the aPpeiiarit that in
the exercise of his right of private defence the appellant was entitled to and
justified in la\1.' in using force even to the extent of causing death ilthough he
never intended to kill the deceased or anyone.
On the facts and circtimstances
of the case, it did not come \Vithin clause 4thly of s. 300; or even if it fell within that provision, on the application of exception 2, he could only be convicted
under Part II of s. 304 and not under Part I.
Even if his conviction
were
maintained, imposition of ti.he would meet the ends of justice.
Dismissing the appeal in part,
HELD : The appellant could be convicted only under Part-II of s. 304 and
not Part-I. [813 CJ.
13-4~ SCl/79
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806
SUPREME COURT REPORTS
[ 1979] 2 S.C.R.
(I) The High Court was right in not finding the appellant guilty of having
committed culpable homicide amounting to murder wjthin
clauses
Firstly,
Secondly or Thirdly and finding him guilty with the aid of clau':ie 4thly \vhere
the intention to cause murder is absent but "the person committing the act
knows that it is so imminently dangerous that it must, in all probability, cause
death or such bodily injury as is likely to cause death". The clause further
aays that the person "commits such act without any excuse for incurring the
risk of causing death or 5UCh injury as aforesaid."
The appellant must have
committed the act with the knowledge that it was imminently dangerous and in
all probability must cause death or such bodily injury as was likely to cause
death.
Dehors Exception 2, he had no excuse for committing the said ai:t.
[813 D-El
In the present case the workers' demand for wages was not legal.
The
workers raised provocative
~logans and did throw brickbats damaging the
appellant's property and endangering it to further damage.
But !.hat by it~elf
could not give a

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805
MOHINDER PAL JOLLY
A
v.
STATE OF PUNJAB
December 14, 1978
[N. L. UNTWALIA AND 0. CHINNAPPA REDDY, JJ.]
B
Indian Penal Code, 1860 (Act 45 of 1860) Ss. 99, IOI, 103, 302, 303 and
304.
Factory owner fired from revolver on workers agitating for ·wages outside
factory-Death of a worker-Accused claiming right of private defence of property and person-Right when available-Accused if should be convicted and
sentenced under Part-II of. Section 304 and not Part-l.
There was h dispute between the appellant, a factory owner and his emC
ployees in regard to wages, during the period of their lay-off.
The prosecution alleged that on the day of th~ occurrence when the workers
gathered outside the factory and raised innocuous slogans
demanding
their
wages, the appellant came out and fired a .shot from his revolver, which hit a
worker resulting in his death.
The ::ippellant on the other hand alleged that a large number of labourers
who collected outside the factory, shouted very abusive slogans, threatening that
they would not k.ave him alive and showered brickbats at the factory premises
causing damage to the appellant's property.
Apprehending im1n1nent danger
to his life and property, his driver fired a shot from the revolver which
resulted in the death of the deceased.
The trial court, with whose findings the High Court agreed, found that the
\\'orkers might hav" hurled brickbats into the factory premises; but they did not
break the barbed wire on the boundary wall nor did they try to scale
the
boundary wall. that they did not carry any sticks, that no brickbats hurled by
the workers could enter the appellant's office and therefore his version that
some brickb:its damaged the glass on his office table was incorrect and that it
was the appellant and not his driver that fired his revolver which resulted in the
death of the Otceased. The High Court, agreeing with the trial court, held that
though the appellant had the right of private defence of property it did not go
to the extent of causing death and, therefore, he exceeded his right of private
defence. Holding that the offence fell under Exception 2 to s.
300 IPC the
High Court convicted him under s. 304, Part-I.
In appeal to this Court it was contended on behalf of the aPpeiiarit that in
the exercise of his right of private defence the appellant was entitled to and
justified in la\1.' in using force even to the extent of causing death ilthough he
never intended to kill the deceased or anyone.
On the facts and circtimstances
of the case, it did not come \Vithin clause 4thly of s. 300; or even if it fell within that provision, on the application of exception 2, he could only be convicted
under Part II of s. 304 and not under Part I.
Even if his conviction
were
maintained, imposition of ti.he would meet the ends of justice.
Dismissing the appeal in part,
HELD : The appellant could be convicted only under Part-II of s. 304 and
not Part-I. [813 CJ.
13-4~ SCl/79
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806
SUPREME COURT REPORTS
[ 1979] 2 S.C.R.
(I) The High Court was right in not finding the appellant guilty of having
committed culpable homicide amounting to murder wjthin
clauses
Firstly,
Secondly or Thirdly and finding him guilty with the aid of clau':ie 4thly \vhere
the intention to cause murder is absent but "the person committing the act
knows that it is so imminently dangerous that it must, in all probability, cause
death or such bodily injury as is likely to cause death". The clause further
aays that the person "commits such act without any excuse for incurring the
risk of causing death or 5UCh injury as aforesaid."
The appellant must have
committed the act with the knowledge that it was imminently dangerous and in
all probability must cause death or such bodily injury as was likely to cause
death.
Dehors Exception 2, he had no excuse for committing the said ai:t.
[813 D-El
In the present case the workers' demand for wages was not legal.
The
workers raised provocative
~logans and did throw brickbats damaging the
appellant's property and endangering it to further damage.
But !.hat by it~elf
could not give any right of private defence of person to the appellant. There
is no cvidt:nce to show that the workers had broken the barbed wire or that
iome of them tried to scale the boundary wall. It may well be that some of
them tried to raise their heads above the boundary wall.
The- appellant came
out of his office and fired the shot, ¥lhich could not be merely to scare away
the crowd of workers.
He could and did fire the shot so. that it could pass
over the boundary wall almost grazing it.
The bullet which must have paased
just over the boundary wall could and did hit the deceased killing him instantanoous!y. [812C-813C]
2. (a) In the matter of exercise of the right or private defence of property
er person the onus is on the accused to establish this right not on the basis
of the standard of proving it beyond doubt but on the theory of preponderance
of probability. He might or might not take this plea explicitly or might or
might not adduce any evidence in support of it but he can succeed in his plea
if he is able to bring out materials on the record on the basis of evidenco of the
pr06CCution witnesses or on other piec~ of evidence to show that the apparently criminal act which he committed was justified in exercise of his right
of_ private defence of person or property or both.
But the exercise of this
ri~ht i!ll subject to the limitation and exceptions provided in section 99 of the
Code.
As to when the right of private defence of the body extends to
causing death ·i, provided for in 1. 100. [813 F-814 A]
(b) The appellant had not only the right of private defence of his property but also, his body to a. limited extent within the meaning of s. 101
iubject to the 'restrictions mentioned in e. 99.
This did not extend to the
idicting of so much harm to the deceased and causinS his death, nor does
the tight of private defence of property available to an accused extend to
cau1ing death, unless it is covered by any of the clause of s. 103. [814 B]
(c) When mischief is caused to property it mu~t be shown that it was
caUJed under such circumstAncc. as may reasonably cause apprehension that
iieath or grevious hurt would be the consequence if such right of pri"Yate
defen.ce WM not exercised.
A mere claim of such apprehen!''.!ion i<; not enough.
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The court on objective tests and on (he facts and circumstances of each oo.se
must arrive at the conclusion that the situation was such as was likely to
reuonably cause such appreheDiiOll. [814 D-E]
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M. P. JOLLY v. PUNJAB (Untwalia, J.)
807
(ct) The· right of private defence of property in the appellant's case extendA
ed to causing of any harm other than death.
The app'ellant did exceed this
right of private defence and the murder which he committed was within the
meaning of clause '4thly' of s. 300 squarely and fell within Exception 2
thereof. !814 Fl
(e) The appellant exceeded the right given to him by law and caused the
death of the deceased against whom he was eXercising such right of defence.
B
He did so without premeditation and without any intention of doing more h~rm
than was necessary fbr the purpose of such defence.
He thought that by
indulging in tlm imminently dangerous act . he would be able to scare
away the labourers and stop them from continuing their unjustified agitation,
the raising of the slogans and the throwing of brickbats.
But then, although
the intention was not to kill or cause such bodily injury as was
sufficient
in the ordinary course of nature to cause death, yet he must have committed
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the act knoiving that it was so imminently dangerous that it must in all
probability cause death of the worker or workers standing on the other side
of the boundary wall. [814 G-HJ
3. If the: accused commits an act while exerc1s1ng the right of private
<lefence by which death is caused either with the intention of causing death or
'vith the intention of causing such bodily injury as is likely to cause death then
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he would be guilty under Part-I. On the other hand if before the application
-0f any of the Exception of s. 300 it is found that he was guilty of murder
\Vithin the meaning of clause "4thly" then no question of such intention arises
and only the kno\vledge is to be fastened on him that he did indulge in an act
with the knowledge that it was likely to catise death but without any intention
to cause it or without any intention to cause such bodily injucy as was likely
to cause death. In the instant case the appellant could be convicted only under
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Part-II of s. 304 and not Part-I. [815 A-CJ
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CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 118
-Of 1972.
Appeal by Special Leave from the Judgment and Order dated
24-4-1972 of the Punjab and Haryana High Court in Criminal Appeal
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No. 303 of 1969.
A. N. Mulla, Harbans Singh and Faqir Chand for the Appellant.
CHardev Singh for the Respondent.
The Judgment of Court was delivered by
UNTWALIA, J.-The appellant in this appeal by special leave was
convicted by the Additional Sessions Judge, Jullundur under section
304 Part-I, Indian Penal Code and ientenced to undergo
rigorous
imprisonment for seven years and a fine of Rs. 10,000/- in default to
two years' further rigorous imprisonment.
The fine, if recovered,
was directed to be paid to the dependants of the deceased in equal
shares.
The appellant filed a criminal appeal in the High Court of
Punjab and Haryana against his conviction and sentence. The State
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SUPREME COURT REPORTS
(1979] 2 S.C.R.
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also filed an appeal and the widow of the deceased filed a revision in
the High Court for convicting the appellant under section 302 of the
Penal Code instead of section 304 Part-I. The High Court dismissed
both the appeals as also the revision.
The appellant only has preferred this appeal in this Court.
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The appellant was running a factory at Jullundur and on account
of non-availability of raw-materials the factory remained closed for a
fortnight from the 14th to 28th September, 1967 resulting in lay-off
of the workmen.
A dispute arose between the management and the
workmen in regard to the payment of wages for the period aforesaid.
Ultimately a settlement was arrived at through the intervention of the
Labour-cum-Conciliation Officer, Jullundur and the terms
of
the
settlement were reduced to writing which was marked fa.t. D.A. in
the case. Rightly or wrongly the workers, according to the prosecution case, got the impression that they were to be paid their wages
for the period of lay-off.
They accordingly went to the appellant on
7th October, 1967 for demanding the wages.
The appellant is said
to have told them that the same would be paid on the 11th October.
On this date again they went to the factory and sent P.W. Mota Singh
to demand wages from the appellant.
He asked him to go away.
Mota Singh came out and passed on the information to the workers
present outside the factory premises, who, amongst others, included
Sant Ram, the deceased, Darshan Singh, P.W. 4 and Gurcharan Singh,
P.W. 5.
According to the prosecution case the workers then started
raising innocuous slogans demanding their wages and did nothing else.
It is said that thereupon the appellant opened the door of his office
and fired a shot from his revolver towards the workers who were raising slogans.
The shot hit on the forehead of Sant Ram who fell down
and died instantaneously at the spot. The occurrence took place at
2.00 p.m. on the 11th October, 1967. A First Information Report
was lodged at the Thana at 2.15 p.m., on the written report of Mota
Singh, P.W. 2, Shadi Lal, P.W. 13, Sub-Inspector of Police reached
the. place of occnrrence at about 2.30 p.m. and started investigation.
After submission of Charge-Sheet and commitment the appellant was
tried for having committed the offence of murder of Sant Ram punishable under section 302 of the Penal Code.
The defence set up by the appellant was that the Labour Officer
had given the decision contained in Ext. D.A: on the 28th September,
.U
1967 that no wages would be paid for the lay-off period but that the
workmen would be treated on leave and would be paid as per leave
due to each one of them.
He along with his son and driver Bansi
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M. P. JOLLY v. PUNJAB (Untwalia, J.)
809
Lal was in the office at about 1.50 p.m. on the 11th October when
eight or nine labourers of his factory and fifteen or twenty labourers
who are outsiders came to his factory.
Some of them entered his
office while others stood outside.
They demanded wages not only for
the period of lay-off but also for the period from 7th October onwards
when they had decided not to join the work until their wages were
paid. The factory gates were closed and a big crowd of labourers
c0llected outside.
They became violent. They shouted very abusive
and obnoxious slogans and were saying that they would not leave the
owner of lhe factory alive that day. They showered brick-bat's at the factory premises. His office air-conditioner was broken so was the electric
globe outside the office.
The brick-bats hit the
office
wall
and
damaged it and also damaged the table glass on the table inside the
office.
Numerous brick-bats fell both inside and outside the office.
Apprehending imminent danger to his life and in exercise of the right
<Jf private defence of property and person, Bansi Lal, the, appellant's
driver fired the shot from the revolver and not he.
The labourers
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had started breaking the barbed wire fixed on the bonndary wall of
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the factory on the other side of which they were standing.
Some of
them including Sant Ram tried to scale the boundary wall. It was in
such a situation that the bullet hit Sant Ram causing his death.
Largely, almost wholly, agreeing with the conclusions arrived at
by the Trial Court, the High Court has arrived at the following findings
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<Jf fact :-
(1) The version of the labourers that they were entitled
to their wages for the lay-off period was not
countenanced by Ext. D.A., rather,
that of
the
appellant was oorne out by it.
"The demand of the
workers made on 7th October,
1967 and
11th
October, 1967 for payment of full wages was not in
accordance with this agreement and therefore was
not legal."
(2) "That after the refusal by the accused to pay wages
to the workers for the lay-off period they raised some
slogans and might have hurled some brick-bats into
the factory premises of the accused and caused
damages as observed by Shadi Lal (P.W. 13) SubInspector, who arrived at the spot within about half
• an hour of the occurrence."
{ 3) "The workers did not break the barbed wire affixed
on the boundary wall of the factory nor they tried to
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SUPREME COURT REPORTS
(1979] 2 S.C.R.
scale the boundary wall and there is no reliable evidence on the file to show that they were armed with
any DANDAS or sticks. Their purpo'se was to hold
a demonstration against the accused when he refused
to consider their demand of wages for the lay off
period which was obviously not justified in view of
the agreement arrived on 28th September,
1968,
copy of which is Exhibit D.A."
"Provocative slogans might have also been raised by
them at that time, when the accused was sitting in the
office."
(5) "Admittedly the workers were, at that time, standing
outside the factory wall which was St feet high and
on which barbed wire is fixed.
The distance
between that outer wall and the office of the accused
was about 13 feet.
No brick-bats hurled by the
workers. could, therefore, enter the office room of the
accused.
The defence version that some brick-bats
fell inside the office of the accused and broke the
glass of his table is false and incorrect."
( 6) The mob hurled bricks-bats on the tuilding and the
globe outside his office was broken and some damage
was done to the air-conditioner and as such the mob
was guilty of mischief."
(7) "The accused on hearing slogans
of the workers
came out of his office and stood on the THARI in
front of the office and fired the shot towards
the
workers, who were raising slogans outside the factory
and as a result of that shot Sant Ram died instantaneously."
On the basis of the findings
aforesaid the High Court, in agreement with the Trial Court, came to the conclusion that the appellant
had the right of private defence of property extending to the voluntary
causing of any harm other than death to the workers but not to the
causing of death and obviously he exceeded his right of private defence
and thus this offence falls under Exception 2 of section 300 of the
Indian Penal Code.
The High Court found the appellant in the first
instance guilty of culpable homicide amounting to murder within the
meaning of clause '4thly' of section 300.
And since the appellant's
case was found to have been covered by Exception 2 he was convicted
under section 304, Part-I.
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M. P. JOLLY v. PUNJAB (Untwalia, J.)
811
Mr. A. N. Mulla appearing for Jhe appellant submitted that he was
not challenging the concurrent findings of the courts below that it was
the appellant who had fired the shot from his revolver and not bis
driver.
But then, according to his submission, he was forced to do
so apprehending imminent danger to his life or of grievous hurt to
him and the shot was fired not only to defend his property.
He was,
therefore, in exercise of that right, entitled to and justified in law in
using force even to the extent of causing the death of Sant Ram,
although he never intended to ldll any one. It was further submitted
that the workmen were the aggressors.
They had thrown brick-bats
even inside th,e office damaging the office table glass; had collected in
large numbers outside the boundary wall; had broken the barbed wire
on it and some of them were trying to scale dow.n the wall.
In such a
situation the appellant was not expected to act like a coward and run
from the place, but he had a right to defend his property and person.
In any view of the matter, counsel submitted, that the case did not come
under clause '4thly' of section 300 or even if it falls within that provision, on the application of Exception 2 he could only be convicted
under Part-II of section 304 and not Part-I.
On the facts and in the
circumstances of this case, counsel submitted, that the sentence imposed upon him is highly excessive and even if his conviction is maintained justice demands only an imposition of fine on him under section
304 Part-II.
Mr. Hardev Singh appearing for the State endeavoured to show
that the labourers were justified in demanding their wages for the layoff period; they were very few in number and even if their demand wa.s
not warranted on the terms of the settlement embodied in Ext. D.A.
they had a right to peacefully demonstrate and ventilate their grievance.
They did nothing which could give any right of private defence to the
appellant either of his property or person.
He could escape from his
office for his safety or would have taken recourse to the protection of
the public authorities.
Counsel further submitted that the appellant
was not at all justified in causing the death of Sant Ram by his revolver
and his conviction recorded under section 304 Part-I Is correct and the
sentence is not at all excessive .
After having appreciated all that was placed before us by learned
counsel for the parties and on perusal of the relevant pieces of evidence
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in the case we have come to the conclusion that none of the findings
recorded hy the Courts below is such or so erroneous that we can
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justifiably interfere with it either this way or that way.
And this,
apart from the fact, that since the State had not come to this Court
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SUPREME COURT REPORTS
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in appeal it was not open to it to argue that the appellant had no right
of private defence at all.
The argument that the appellant had time
to escape like a coward for protecting his person leaving his property
to any amount of danger of being damaged, to say the least, was an
obviously wrong argument and has been stated merely to be rejected.
Ext. D.A. clearly shows that the workmen were not entitled to
claim down right cash wages for the period of lay-off.
Their absence
was to be adjusted against their leave.
To start with, therefore, the
High Court was right in saying that their demand was not legal.
Yet
that, by itself, could not give any right of private defence · either of
property or of person to the appellant.
We have carefully gone
through the evidence of P. Ws. 2, 4 and 5 and also the evidence of
Vidya Sagar, D.W. 2 on which great reliance was placed by Mr. Mulla.
We see no ample justification for us to say that any brick-bats thrown
by the labourers had entered the office room of the appellant breaking
the glass of his office table.
But then, brick-bats were thrown; they
did hit and damage the office wall, the air-conditioner and the globe
of the electric light. It may not be possible to determine with exactitude the number of labourers present outside the boundary wall at the
time of the occurrence.
But it does appear to us that they
were
neither present in very large number of hundred or more nor the
number was as meagre as about ten as deposed to by the P.Ws.
The
factory of the appellant is situated in an industrial area. It is reasonable to think that some other workers also must have
joined their
agitational move.
Be that as it may, the number of the workers present outside the boundary wall is not of any great significant although
it has some significance.
They did throw brick-bats damaging the
appellant's property and endangering it to further damage. Hurling
of brick-bats by the labourers towards the office of the appellant must
have caused apprehension of some hurt or injnry to him but not necessarily the causing of the grievous hurt as on the facts and in the circumstances of this case it was not possible to draw an inference to that
extent.
The High Court would have been well advised to try to
record a definite finding on the question of hurling of brick-bats instead
of saying that the workers "might have hurled some brick-bats into
the factory premises of the accused."
Similarly the High Court ought
to have come to a definite conclusion as to whether the slogans raised
by the workers were merely innocuous as they claimed to be or they
were raising provocative slogans also which were not only obnoxious
but went to the length of saying that the appellant should be killed
and the factory should be burnt.
We are inclined to think that the
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M. P. JOLLY v. PUNJAB (Untwalia, J.)
813
~logans raised by the workers were more offensive and provocative
than claimed by them. But we are not prepared to accept the contention of the appellant in disagreement with the findings of the courts
below that they had broken barbed wire or that some of them tried
to scale down the boundary wall. It may well be that some of them
tried to raise their heads to mark the reaction of the appellant on the
hearing of their slogans.
The boundary wall was only St' high. The
appellant came out of his office room and stood on the THAR! which
was about 1 t' high from the ground level of the factory and fired the
shot. It is not possible to accept his contention that he did so merely
to scare away the crowd of the workers.
He could and did fire
the
shot so that it could pass over the boundary wali almost grazing it.
Sant Ram was standing at a distance of about 5' or 6' from the
boundary wall.
The bullet which must have passed jnst over
the
boundary wall could and did hit Sant Ram.
In such a situation the
High Court was right in the first instance in not finding the appellant
guilty of having committed culpable homicide amounting to murder
within clauses 'lstly, 2ndly or 3rdly' and finding him guilty with the
aid of clause '4thly', where the intention to cause murder is absent but
"the person committing the act knows that it Is so imminently dangerous
that it must,. in all probability, cause death or such bodily injury as is
likely to cause death". The clause further says that the person "commits
such act without any excuse for incurring the risk of causing death or
such injury as aforesaid." The appellant must have committed the act
with the knowledge that it was imminently dangerous and in all probability must cause death or such bodily injuries as was likely to cause
death.
Dehors Exception 2 which we shall presently refer he had no
excuse for committing the said act.
The law regarding the right of private defence of property or person
is well settled and may be briefly recapitulated here.
The onus is on
the• accused to establish this right not on the basis of the standard of
proving it beyond doubt but on the theory of pre-ponderance of probability. He might or might not take this plea explicitly or might or
might not adduc~ any evidence in support of it but he can succeed in
lais plea if he is able to bring out materials in the records of the case
on the basis of the evidence of the prosecution witnesses or on other
pieces of evidence to show that the apparently criminal act which he
committed was justified in exercise of his right of private defence of
property or person or both. But the exercise of this right is subject
to the limitations and exceptions provided in section 99 of the Penal
Code-the last one being-'The right of private defence in no case
extends to the inflicting of more harm than it is necessary to inflict for
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814
SUPREME COURT REPORTS
[ 1979] 2 S.C.R.
the purpose of defence."
As to when the right of private defence of
the body extends to causing death is provided for in section l 00.
The
appellant's case is not covered by it. In the view which we have expressed above we think that the appellant had not only the right of
private deience of his properly but also his body to a limited extent within the meaning of section 101 subject to the restrictions mentioned in
section 99.
This did not extend to the inflicting of so much harm to
Sant Ram and causing his death, nor the right of private defence of
property available to the appellant extended to causing his death as it
was not covered by any of the clauses of section 103. Mr. MuUa tried
to bring it under '4thly' which says :-
"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."
Mischief was caused to bis property but it was not caused under such
circumstances as may reasonably cause apprehension in bis mind that
death or grievous hurt would be the consequence if such right ot private
defence was not exercised.
A mere claim of such apprehension is
not enough.
The Court on objective test and on the facts and cirE
cumstances of each case must arrive at the conclusion that the situation
was such as was likely to reasonably cause such apprehension.
The
right of private defence of property also, therefore, in the appellant's
case extended to causing of any harm other than
the death.
Undoubtedly the appellant did exceed this right of private defence and
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apparently the murder which he committed within the meaning of
clause '4tbly' of section 300 squarely fell within Exception 2 thereof.
He exceeded the power given to him by law and caused the death of
Sant Ram against whom he was exercising such right of defence.
He
did so without premeditation and without any intention of doing more
horm than was necessary for the purpose of such defence. He thought
that by indulging in this in1m.inently Uangeroμs act he woultl be
able
tn scare away the labourer> and stop them from continuing their unjustified agitation, the raising of the slogans and the throwing of the
brick-bats. But then, although the intention was not to kill or cause
5uch bodily injury as was sufficient in the ordinary course of nature to
cause death, yet he must have committed the act knowing that it was
so imminently dangerous that it must in all probability cause death or
such bodily injury as was likely to cause death of the worker or worker&
standing on the other side of the boundary wall.
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M. P. JOLLY v. PUNJAB (Untwalia, J.)
815
A question now arises whether the appellant was guilty
under
Part-I of section 304 or Part-II.
If the accused commits an act while
exceeding the light of private defence by which the death fs caused either
with the' intention of causing death or with the intention of causing such
bodily injury as was likely to cause death then he would be guilty under
Part-I. On the other hand if before the application of any of the Excep·
tions of section 300 it is found that he was guilty of murder within th0
meaning of clause '4thly', then no question of such intention arises and
only the knowledge is to be fastened on him that he did indulge in
an act with the knowledge that it was likely to cause death but without
any intention to cause it or without any intention to cause such bodily
injuries as was likely to cause death.
There does not seem to be any
escape from the position, therefore, that the appellant could be convicted only under Part-II of section 304 and not Part-I.
Even so on the facts and in the circumstances of this case we do
not feel per'suaded to let off the appellant with an imposition of
fine
only.
We, however, thought that sentence of three years'
dgorous
imprisonment would meet the ends of justice in this case.
We were
informed at the Bar and an affidavit sworn by the appellant's wife was
also filed before ns to the effect that the appellant was in jail for about
nine months as an under trial prisoner and for about four months after
conviction.
Thus he has already undergone imprisonment for a period
of about a year and a month.
The occurrence took place more than a
decade
ago.
The appellant had to pass this long ordeal all these
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Considering, therefore, the totality
of the circumstances while maintaining the imposition of fine of
Rs. 10,000/- and in default two years' further imprisonment, we reduce
his substantive term of imprisonment to the period already undergone
and maintain the conviction of the appellant not under Part-I of section
304 of the Penal Code but under Part-II.
In tl1c result the appeal is dismissed but subject to the modification
,
made above in regard to the appellant's conviction and sentence .
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App•al dismissed.
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