# MUNNEYKHAN v. STATE OF MADHYA PRADESH

- **Citation:** [1971] 1 S.C.R. 943
- **Court:** Supreme Court of India
- **Decided:** 1970-08-28
- **Case number:** Criminal Appeal No. 64 of 1968
- **Bench:** V. Bhargava, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/munneykhan-v-state-of-madhya-pradesh-5300
- **Pages:** 6

## Headnote

943
Indian Penal Code (Act 45 of 1860), ss. 96 to 101-Right of prira1e
defence-Nat11re of-Availability in the case of a free fight.
The appellant was charged with the offence of murder. The trial court
observed in its judgment that it appeared that the deceased must have picked up a quarrel with the appellant's brother, that the deceased overpowered
the appellant's brother, threw him on the ground and sat on his chest giving
him fist blows, and that since the appellant could not prevent the deceased
hitting his brother by the use of his fist,
he stabbed the deceased in the
back with a knife. The trial court found the appellant guilty of murder,
and the High Court dismissed his appeal summarily, agreemg generally
with the conclusions of the trial court.
On the question of the nature of the offence,
HELD : The appellant had exceeded his r~ht of private defence and his
guilty of culpable homicide not amounting to murder punishable under
the first part of s.304, I.P.C.
(Per Bhargava, J.) On the facts stated the deceased was the aggressor
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and a right of self-defence of the body of his brother had accrued to the
·appellant. But the right is go\'erned by s. 101, l.P.C., and is subject to
the limitations that in the exercise of the right death may not be caused.
and that the force used should not exceed the minimum required to s:nc·
the person in whose defence it is used. In the present case, the use of the
knife itself was in excess of the right and it became much more excessive
when the blow was given in a vital part of the victim's body and was, in
the ordinary course of nature, likely to cause his death. [945 G-H; 946 A·D]
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(Per Dua. l.) The right of private defenoe is codified in ss. 96 '''
I 00 I.P .C. By enacting these sections the authors of the Code wanted t,,
except from the operation of its penal clauses classes of acts done in good
faith for the purpose of repelling unlawful aggression. This right is avnil·
010le against an offence and, therefore, where an act is done in exercise of
right of private defence such an act 'cannot give rise to a right of private
defence in favour of the aggressor in return. This would seem to be so even
if the person exercising the right of private defence has the better of his
aggressor provided he does not exceed ,bis right because the moment he
exceeds it he commits an offence. There is also no right of private defence
when there is time to have recourse to the protection of public authoriti"'.
This right is essentially a defensive right circumscribed by the statute, and
. should not be allowed as a pretext for vindictive, aggressive or retributive
purpose. As this right vests even in strangers for defence of body and J!fo·
perty of others against offences. the courts should be careful in seeing that
no one on the mere pretext of exercise of right of private defence take,
.\ides in a quarrel between two or more persons and inflicts injuries on one
or the other. When two parties are having a free fight without disclosin~
"' to who is the initial aggressor it would be dangerous as a general rule
944
SUPREME COURT REPORTS
[1971] ! S.C.R.
to clothe either of them or a symp~thiser with a right of private defence.
If however, one of them is shown to be
committing an offence affecting
human body then that would give rise to such right . When there is no
initial 'right of private defence there can hardly be any question of exceeding that right. [947 E-H; 948 A-BJ
Jn ~he present borderline case the fac1s ot which are peculiar, there was
no firm finding by the trial court that the deceased was guilty of unlawful
aggression or of an offence giving rise to the right of p\'ivate of defence.
In view of the summary dismissal of the appeal by the High Court in a
brief order expressing general al!feement with the conclusions of the trial
court the appellant was given the benefit of the trial court's observation
that the deceased must have picked up a quarrel with Zulfikuar. (948 B-DJ

## Text

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MUNNEYKHAN
v.
STATE OF MADHYA PRADESH
August 28, 1970
(V. BHARGAVA AND I. D. DUA, JJ.]
943
Indian Penal Code (Act 45 of 1860), ss. 96 to 101-Right of prira1e
defence-Nat11re of-Availability in the case of a free fight.
The appellant was charged with the offence of murder. The trial court
observed in its judgment that it appeared that the deceased must have picked up a quarrel with the appellant's brother, that the deceased overpowered
the appellant's brother, threw him on the ground and sat on his chest giving
him fist blows, and that since the appellant could not prevent the deceased
hitting his brother by the use of his fist,
he stabbed the deceased in the
back with a knife. The trial court found the appellant guilty of murder,
and the High Court dismissed his appeal summarily, agreemg generally
with the conclusions of the trial court.
On the question of the nature of the offence,
HELD : The appellant had exceeded his r~ht of private defence and his
guilty of culpable homicide not amounting to murder punishable under
the first part of s.304, I.P.C.
(Per Bhargava, J.) On the facts stated the deceased was the aggressor
E
and a right of self-defence of the body of his brother had accrued to the
·appellant. But the right is go\'erned by s. 101, l.P.C., and is subject to
the limitations that in the exercise of the right death may not be caused.
and that the force used should not exceed the minimum required to s:nc·
the person in whose defence it is used. In the present case, the use of the
knife itself was in excess of the right and it became much more excessive
when the blow was given in a vital part of the victim's body and was, in
the ordinary course of nature, likely to cause his death. [945 G-H; 946 A·D]
F
G
H
(Per Dua. l.) The right of private defenoe is codified in ss. 96 '''
I 00 I.P .C. By enacting these sections the authors of the Code wanted t,,
except from the operation of its penal clauses classes of acts done in good
faith for the purpose of repelling unlawful aggression. This right is avnil·
010le against an offence and, therefore, where an act is done in exercise of
right of private defence such an act 'cannot give rise to a right of private
defence in favour of the aggressor in return. This would seem to be so even
if the person exercising the right of private defence has the better of his
aggressor provided he does not exceed ,bis right because the moment he
exceeds it he commits an offence. There is also no right of private defence
when there is time to have recourse to the protection of public authoriti"'.
This right is essentially a defensive right circumscribed by the statute, and
. should not be allowed as a pretext for vindictive, aggressive or retributive
purpose. As this right vests even in strangers for defence of body and J!fo·
perty of others against offences. the courts should be careful in seeing that
no one on the mere pretext of exercise of right of private defence take,
.\ides in a quarrel between two or more persons and inflicts injuries on one
or the other. When two parties are having a free fight without disclosin~
"' to who is the initial aggressor it would be dangerous as a general rule
944
SUPREME COURT REPORTS
[1971] ! S.C.R.
to clothe either of them or a symp~thiser with a right of private defence.
If however, one of them is shown to be
committing an offence affecting
human body then that would give rise to such right . When there is no
initial 'right of private defence there can hardly be any question of exceeding that right. [947 E-H; 948 A-BJ
Jn ~he present borderline case the fac1s ot which are peculiar, there was
no firm finding by the trial court that the deceased was guilty of unlawful
aggression or of an offence giving rise to the right of p\'ivate of defence.
In view of the summary dismissal of the appeal by the High Court in a
brief order expressing general al!feement with the conclusions of the trial
court the appellant was given the benefit of the trial court's observation
that the deceased must have picked up a quarrel with Zulfikuar. (948 B-DJ
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
64 of 1968.
Appeal by special leave from the judgment and order dated
March 29, 1966 of the Madhya Pradesh High Court in Criminal
Appeal No. 104 of 1966.
U. P. Singh, for the appellant.
I. N. Shroff, for the respondent.
The fellowing Judgments were delivered by
Bhargava, J. This is an appeal by special leave by one Munney
· Khan who has been convicted for the offence of murder punishable
under section 302 of the Indian Penal Code and sentenced to
. undergo rigorous imprisonment for life. In this case, it is not
necessary to describe in detail the two versions which were put
forward by the prosecution and the defence in the Court of Sessions. It is sufficient to give the findings of fact recorded by . the
Sessions Judge, who tried the case, which have been affirmed by
the High Court of Madhya Pradesh.
In Berkhedi, the residents, in accordance with their t•sual
practice, gathered to celebrate "Durga Utsav" on
1st October,
1965 near Kabir Mandir and, in that connection, a drama of
"Amarsingh" was to be staged at about 10 or 10.30 p.m. Reotisingh deceased was one of the volunteers whq was posted on duty
in connection with the arrangements close to the sittin'l place
reserved for the ladies in order to check men from entering that
area: At about 10.30 p.m., the appellant and his brother Zulfiquar
came and wanted to pass through the ladies corner, but were prevented by Reotisingh who asked them to go via a lane. though that
was a longer route. The appellant being annoyed pushed Reoiisingh and insisted on passing through the ladies corner. There was
a short scuffle which subsided when other pers<ms intervened.
After a short while, Reotisingh went to his house in order to tak~
his meals leaving his duty in charge of Pooranlal. When ReotIsingh wa~ returning after taking his meals, he met the appellal)t
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MUNNEY KHAN v. M.P. STATE (Bhargava, /.)
945
and his brother Zulfiquar and a quarrel started. Though, according to the prosecution, the appellant and his brother had launched
the attack, tl\e finding recorded by the Sessions Judge is that it is
much more likely that it was Reotisingh who picked up a quarrel
with Zulfiquar first. He overpowered Zulfiquar and threw him on
the ground and sat on his chest giving fist blows. The appellant
Munney Khan, seeing his brother being overpowered and beaten,
came to his rescue and tried to save him by giving fist blows to
Reotisingh, When this did not succeed, he tool.. out a knife and
stabbed Reotisingh in the back.
In the meantime, other persons
arrived; and the appellant and his brother Zulfiquar ran away. It
may be mentioned at this stage that the case put forward by the
appellant was that he did not stab Reotisingli. According to him.
Chotelal witness arrived to intervene and had a knife in his hand
with which Chotelal aimed a blow at the appeilanr who dodged
it and the blow hit Reotisingh. This version of the defence was
not supported by any evidence and was disbelieved by the Sessions
Judge. The Sessions Judge recorded the finding, as stated by us
earlier, 10 the effect that Muni:tey Khan appellant gave the knife
blow at· the back of Reotisingh when he fpund that he could not
prevent Reotisingh from continuing to shower fist blows on Zulfiquar by merely fist blows to Reotisingh.
-
This version was accepted by the Sessions Judge on the basis
of the evidence of eye-witnesses, Manila!, Chotelal and ShankerE
Jal, which was corrob<)ialed by the evidence of two other witnesses
Pooranlal and Motilalr~ If was also in line with the medical evidence. This assessment of the evidence was affirmed by the High
Court. On these facts as found by the Sessions Judge and affirme.i
by the High Court, the appellant has been convicted for the offence
of murder under s. 302, I.P.C. Even· !~med counsel for the
F · appellant did not advance any arguments before us to displace
these findings of fact.
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However, the main point that was canvassed and that arises
on these facts is whether the conviction of the appellant for the
offence under s. 302, I.P.C. is justified. The findings of fact show
that the knife blow was given by the appellant to Reotisingh when
Reotisingh had picked up a quarrel with the aopellant's brother ,
Zulfiquar, had overpowered him, was sitting on his chest, was givi'lg him fist blows, and could not be prevented f.rom doing so by
the appellant by mere use of his fist.
Clearly, in ti ese circumstances, Reotisingh was the aggressor and was causing hurt to Zul-·
fiquar, the brother of the aopellant, so that a right of self-defence.
of body of his brother Zulfiquar had accrued to. the appellant.
That right, however, could not justify the act of appellant in
stabbinl! Reotisingh in his back so as to cause his death. The right
of orivate defence was a very limited one. It only excended to
946
SUPREME COURT REPORTS
( 19·1 l] 1 S.C.R.
causing hurt of any kind to Reotisingh, but it did not provide any
justification for giving a fatal blpw. Such a right of private defence
is governed by section 101, I.P.C. and is subject to two limitations.
One is that, in exercise of this right of private defence, any kind of
hurt can be caused, but not death; and the other is that the use
of force dces not exceed the minimum required to save the person
in whose defence the force is used. In these circumstances, in the
present case, when Zulfiquar was being given fist blows only, there
could be no justification at all for the appellant to stab Reotisingh
with a knife and particularly to give hirn a blow which could prove
fatal by aiming it on his back. The use of the knife itself was in
excess of the. right of private defence and it became much more
excessive when the blow with the knife was given on a vital part
of t':J.e body which, in the ordinary course of nature, was likely to
cau;e the death of Reotisingh. From the fact that the blow wa'
given in the back with a knife an inference foliows that the appellant
intended to cause death or at least intended to cause such injury
as would, in the ordinary course of nature, result in his death. In
adopting this course, the appellant would have been clearly
guilty of the offence of murder had there been no right of private
defence of Zulfiquar at all. Since such a right did exist, the <;:?se
would fall under the exception under which culpable homicide
does not amount to murder on the grovnd that the death was
caused in exercise of right of private defence, but by exceeding
that right. An offence of this nature is made punishable under the
first part of section 304, l.P.C. Consequently, the conviction of
the appellant must be under that provision and not under s. 302.
I.P.C.
As a result, the appeal is partly allowed, the conviction under
s. 302, l.P.C., is set aside, and the appellant is convicted instead
under the first part of section 304, I.P.C. In view of the change
in the offence for which the appellant is being punished, we set
aside the sentence of imprisonment for life and, instead, award
him a sentence of seven years' rigorous imprisonment.
Dua, J. l <1grcc. The trial court in the course of its judgment
.observed:
"There is nothing on record to show how the quarrel
started. It seems that when the deceased Reoti Singh
was returning from his house to the place of celebrat'c•ns he must have picked up a quarrel with Zulfikar
whom he overpowered by throwing him on the ground.
The accused Munne. seeing his brother being overpowered by the deceased must have come to his rescue
and assaulted him (deceased)."
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MUNNEY KHAN v. M.P. STATE (Dua, J.)
94;
It is true that tllis observation was made by that court while dealing.
with the question of common intention to murder alleged to have
been shared by Zulfiquar with the appellant and it is also true
that some observations in certain other parts of its judgment
suggest that there was a free fight between the deceased on one
side and the appellant and his brother on the other. Particularly
in the portion dealing with the question of the right of private
defence, the trial court held that there was a hand to hand scuflle
between Zulfiq uar and the deceased.
But in view of the fact that
the High Court summarily dismissed the appeal in a brief order
generally agreeing with the conclusions of the trial court I am inclined to give the appellant the benfit of the triul court's observation that the deceased must have picked up a quarrel with Zulfiquar. ·
We were not taken through the evidence in this Court.
I would, however, like to state very briefly my opinion on the
Jaw of private defence and I propose doing so in order to guard
against a possible erroneous impression about it arising from the
peculiar facts of this borderline case in which there is no firm
finding that the deceased was guilty of unlawful aggression or of
an offence giving rise to the right of private defence.
The right of private defence is codified in ss. 96 to 100, I.P.C.
which have all to be read together in order to have a proper grasp
of the scope and the limitations of this right. By enacting these
sections the authors of the Code wanted to except from
the operation of its penal clauses classes of act> done in goou
faith ior the purpose of repelling unlawful aggression. This right
is available against an offence and, therefore, where an act is done
in exercise of the right of private defence such act cannot give rise
to any right of private defence in favour of the aggressor in return.
This would seem to be so even if the person exercising :he right
of private defence has the better of his aggressor provi_ded of
cour'e he does not exceed his right because the moment he exceeds
it, he commits an offence. There is also no right of private defence
in cases where there is time to have recourse to the protection of
public authorites. The right of private defence is essentially a
defensive right circumscribed by the statute, available only when
the circumstances clearly justify it.
It ·should not be 11lowed to
be pleaded or availed of as a pretext for a vindictive, aggressive
or retributive purpose. According to s. 97 this right vests even
in strangers for the defence of the body and nroperty of other
persons against offences me11tioned therein. The courts have.
therefore, to be careful in·seeing that no one on the mere pretext
of"the exercise of the _right of priva:e defence takes sides in
a
quarrel between twq 6r more persons and inflicts injuries on the
one or the other. In a case when two parties are having a f\:ee
fight without disclosing as to who is the initial aggressor it may be
SUPREME COURT REPORTS
[ J 97 I] l S.C. R.
,dangerous as a general rule to clothe either of them or his sympaA
thiscr with a right of private defence. If, however, one of them
is shown to be committing an offence affecting human body then
that would of' course seem to give rise to such right. If 'there is
no initial right of private defence then there can hardly be any
.question of exceeding that right.
With these observations which
I have considered proper to make in order to guard myself against
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.any possible misunderstanding about the precise scope of the iight
·Of private defence I agree .with my learned brother.
'Y.P.S.
A ppea/ a//oll'ed i11 parl.
1<i9Sup. Cl/7!-14-9-71-GIPF.
..