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CASE NO.:

Appeal (crl.) 887 of 1997

Special Leave Petition (crl.) 47-49 of 1998

PETITIONER:

James Martin

RESPONDENT:

State of Kerala

DATE OF JUDGMENT: 16/12/2003

BENCH:

DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT:

J U D G M E N T

ARIJIT PASAYAT, J.

Self-preservation is the prime instinct of every human being. The

right of private defence is a recognized right in the criminal law.

Therefore, Section 96 of Indian Penal Code, 1860 (in short 'the IPC')

provides that nothing is an offence which is done in the exercise of the

right of private defence. The question is, as happens in many cases,

where exercise of such rights is claimed, whether the "Lakshman Rekha",

applicable to its exercise has been exceeded. Section 99 IPC delineates

the extent to which the right may be exercised.

The claim was made by the accused in the following background:

Appellant-James Martin faced trial along with his father\026Xavier

for alleged commission of offences punishable under Sections 302, 307,

326 read with Section 34 and Section 326 read with Section 114 IPC and

Sections 25(B)(1) of the of the Arms Act, 1959 (in short 'the Act') and

Sections 27 and 30 thereof. Learned Sessions Judge, N. Paravur, found

the present appellant (A-1) guilty of offences punishable under Section

304 Part I, 326 and 324 IPC, while the other accused was found guilty of

the offences punishable under Section 304 Part I read with Section 34,

302 read with Sections 24, 324 IPC. Both the accused persons were

sentenced to undergo imprisonment for 7 years and for the second

offence, 2 years RI and fine of Rs.20,000/- with default stipulation of

1 year sentence. It was directed that in case fine was realized it was

to be paid to (PW-3). Each of the accused was also to undergo sentence

RI for 1 year for the offence punishable under Section 324 IPC and to

pay a fine of Rs.5,000/- with default stipulation of 6 months sentence.

The fine, if any on realisation, was directed to be paid to PW-7 and PW-

8. The fine was directed to be paid to (PW-8). The sentences were

directed to run concurrently.

A-2 also filed a complaint against 24 persons, which was tried as

S.C. no.74 of 1991. In the said case some of the PWs and their

supporters were the accused. State had launched prosecution against 12

of the said 24 persons. The same as tried as S.C. no. 57 of 1990.

Several appeals and revisions were filed by the appellants, the

prosecution witnesses and the State. Appeal filed by the accused

persons was numbered as criminal appeal no.4 of 1994. As complaint was

lodged by the accused alleging various offences by the prosecution

witnesses, a separate case (S.C. 74 of 1991) was registered in which

there was an acquittal. Against such acquittal also appeal was filed by

A-2 which was numbered as criminal appeal no. 471 of 1994. Criminal

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appeal no. 784 of 1994 was filed by the State questioning acquittal in

S.C. 57 of 1990. Father of one of the victims filed Crl. Revision Cr.RP

820 of 1994. The propriety of conviction under Section 304 Part I

instead of Section 302 IPC was questioned by the State in Crl. Appeal

no. 312 of 1994. By a common judgment all matters were disposed of.

The matrix of the litigation related to a Bharat Bandh on

15.3.1998 sponsored by some political parties. Prosecution version as

unfolded during trial is as follows:

Most of the shops and offices were closed and vehicles were off

the road. There were isolated instances of defiance to the bundh call

and some incidents had taken place that, however, did not escalate to

uncontrolled dimensions. Cheranelloor, where the concerned incidents

took place, is a politically sensitive suburb of Kochi where accused-

appellant James and his father Xavier had their residence, besides a

bread factory and a flour mill in the same compound. It was not

anybody's case that they belonged to any political party or had

credentials, which were unwholesome. By normal reckoning, their

business activities flourished well. They owned a tempo van and other

vehicles which were parked inside the compound itself. It was, however,

said that their success in business was a matter of envy for Thomas

Francis, their neighbour, particularly who filed complaints to the local

authorities against the conduct of the mill and the factory and also

filed a writ petition to get them closed down, but without success. He

was one of the accused in S.C.No.74 of 1991 and according to the accused

appellant-James was the kingpin and that the incident was wrought by him

out of hatred and deep animosity towards James and Xavier.

The incident involved in this case took place at about 2.30 p.m.

on 15.3.1988 when five young men, the two deceased in this case, namely,

Mohan and Basheer (hereinafter referred to as 'deceased' by their

respective name), and PW-1, PW-2 and PW-4, who were activists of the

bundh, as followers of the political parties which organized that bundh

on that day, got into the flour mill of the A-2 through the unlocked

gate leading access to that mill situate in a property comprising the

residential building, a bread factory and other structures belonging to

that accused. This group of five men on passing beside the mill of A-2

while they were perambulating the streets of Cheranelloor to have a

first hand information as to the observance of the bundh on coming to

know of the operation of the flour mill by A-2 proceeded to that place

and made demands to PW-15, the employee of A-2 who was operating the

mill to close down. An altercation took place between them and on

hearing the commotion the accused, A-1 and A-2 who were inside their

residential building, situate to the west of that mill, rushed to the

place and directed the bundh activists to go out of the mill. As the

activists of the bundh persisted in their demands for closing the mill,

according to the prosecution, A-2 got out of the mill and on the

instruction given by A-2, A-1 locked the gate of the compound from

inside. Then both of them rushed back to the house with A-2 directing

A-1 to take out the gun and shoot down the bundh activists by declaring

that all of them should be finished off. On getting into the house and

after closing the outer door of that building, both the accused rushed

to the southern room of that building which faced the gate with a window

opening to that side. The 1st accused on the instigation of the 2nd

accused, his father, and having that accused beside him, fired at the

bundh activists, who by that time had approached near the locked gate,

by using an S.B.B.L. Gun through the window. The first shot fired from

the gun hit against one of the bundh activists, who had got into the

compound, namely Basheer, and he fell down beside the gate. The other

four bundh activists on requesting the 1st accused not to open fire

rushed towards Basheer and, according to the prosecution, the first

accused fired again with the gun indiscriminately causing injuries to

all of them. Even when the first shot was fired from the gun passersby

in the road situate in front of that property also sustained injuries.

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When the firing continued as stated above some of the residents of the

area who were standing beside the road also received gun shot injuries.

On hearing the gun shots people of the locality rushed to the scene of

occurrence and some of them by scaling over the locked gate broke opened

the lock and removed the injured to the road, from where they were

rushed to the hospital in a tempo van along with the other injured who

had also sustained gun shot injuries while they were standing beside the

road. One among the injured, namely, Mohanan breathed his last while he

was transported in the tempo to the hospital and another, namely,

Basheer, succumbed to his injuries after being admitted at City

Hospital, Ernakulam. All the other injured were admitted in that

hospital to provide them treatment for the injuries sustained. After the

removal of the injured to the hospital in the tempo as aforesaid a

violent mob which collected at the scene of occurrence set fire to the

residential building, flour mill, bread factory, household articles,

cycles, a tempo and scooter, parked in front of the residential building

of the accused, infuriated by the heinous act of the accused in firing

at the bundh activists and other innocent people as aforesaid. Soon

after the firing both the accused and PW-15 escaped from the scene of

occurrence and took shelter in a nearby house.

The information as to the occurrence of a skirmish and altercation

between bundh activists and the accused and of an incident involving

firing at Cheranelloor was received by the police at Kalamassery Police

Station from the Fire Station at Gandhi Nagar, Ernakulam, which was

informed of such an incident over phone by a resident living close to

the place of occurrence.

The accused on the other hand, took the stand that the firing

resulting in the death of two bundh activists and sustaining of grievous

injuries to several others occurred when their house and other

buildings, situated in a common compound bounded with well protected

boundary walls, and movable properties kept therein were set on fire by

an angry mob of bundh activists when the accused failed to heed their

unlawful demand to close down the flour mill which was operated on that

day.

The trial Court discarded the prosecution version that the

deceased and PWs who had sustained injuries had gone through the gate as

claimed. On analysing the evidence it was concluded that they had

scaled the walls. Their entry into premises of the accused was not

lawful. It was also held that PW-15 was roughed up by the bandh

activists, making him runaway. A significant conclusion was arrived at

that they were prepared and in fact used muscle power to achieve their

ends in making the bandh a success. It was categorically held that the

bandh activists on getting into the mill threatened, intimidated and

assaulted PW-15 so as to compel him to close downs the mill. He

sustained injuries, and bandh activists indulged in violence before the

firing took place at the place of occurrence. Accused asked PW-1, PW-2

and PW-4 to leave the place. It was noticed by the trial Court that the

activists were in a foul and violent mood and had beaten up one Jossy,

and this indicated their aggressive mood. They were armed with sharp

edged weapons. Finally, it was concluded that the right of private

defence was exceeded in its exercise.

On consideration of the evidence on record as noted above, the

conviction was made by the trial Court and sentence was imposed. The

trial Court came to hold that though the accused persons claimed alleged

exercise of right of private defence same was exceeded. The view was

endorsed by the High Court by the impugned judgment so far as the

present appellant is concerned. But benefit of doubt was given to A-2,

father of the present appellant.

Mr. Sushil Kumar, learned senior counsel for the appellant

submitted that the factual scenario clearly shows as to how the

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appellant was faced with the violent acts of the prosecution witnesses.

Admittedly, all of them had forcibly entered into the premises of the

appellant. PW-15 one of employees was inflicted severe injuries. In

this background, the accused acted in exercise of right of private

defence and there was no question of exceeding such right, as held by

the trial Court and the High Court.

In response, learned counsel for the State submitted that after

analyzing the factual position the trial Court and the High Court have

rightly held that the accused exceeded the right of private defence and

when two persons have lost lives, it cannot be said that the act done by

the accused was within the permissible limits. He also pressed for

accepting prayer in the connected SLPs relating to acquittal of A-2 and

conviction of the accused-appellant under Section 304 Part I.

Only question which needs to be considered, is the alleged

exercise of right of private defence. Section 96, IPC provides that

nothing is an offence which is done in the exercise of the right of

private defence. The Section does not define the expression 'right of

private defence'. It merely indicates that nothing is an offence which

is done in the exercise of such right. Whether in a particular set of

circumstances, a person legitimately acted in the exercise of the right

of private defence is a question of fact to be determined on the facts

and circumstances of each case. No test in the abstract for determining

such a question can be laid down. In determining this question of fact,

the Court must consider all the surrounding circumstances. It is not

necessary for the accused to plead in so many words that he acted in

self-defence. If the circumstances show that the right of private

defence was legitimately exercised, it is open to the Court to consider

such a plea. In a given case the Court can consider it even if the

accused has not taken it, if the same is available to be considered from

the material on record. Under Section 105 of the Indian Evidence Act,

1872 (in short 'the Evidence Act'), the burden of proof is on the

accused, who sets up the plea of self-defence, and, in the absence of

proof, it is not possible for the Court to presume the truth of the plea

of self-defence. The Court shall presume the absence of such

circumstances. It is for the accused to place necessary material on

record either by himself adducing positive evidence or by eliciting

necessary facts from the witnesses examined for the prosecution. An

accused taking the plea of the right of private defence is not

necessarily required to call evidence; he can establish his plea by

reference to circumstances transpiring from the prosecution evidence

itself. The question in such a case would be a question of assessing

the true effect of the prosecution evidence, and not a question of the

accused discharging any burden. Where the right of private defence is

pleaded, the defence must be a reasonable and probable version

satisfying the Court that the harm caused by the accused was necessary

for either warding off the attack or for forestalling the further

reasonable apprehension from the side of the accused. The burden of

establishing the plea of self-defence is on the accused and the burden

stands discharged by showing preponderance of probabilities in favour of

that plea on the basis of the material on record. (See Munshi Ram and

Ors. v. Delhi Administration (AIR 1968 SC 702), State of Gujarat v. Bai

Fatima (AIR 1975 SC 1478), State of U.P. v. Mohd. Musheer Khan (AIR 1977

SC 2226), and Mohinder Pal Jolly v. State of Punjab (AIR 1979 SC 577).

Sections 100 to 101 define the extent of the right of private defence of

body. If a person has a right of private defence of body under Section

97, that right extends under Section 100 to causing death if there is

reasonable apprehension that death or grievous hurt would be the

consequence of the assault. The oft quoted observation of this Court in

Salim Zia v. State of U.P. (AIR 1979 SC 391), runs as follows:

"It is true that the burden on an accused

person to establish the plea of self-defence is not

as onerous as the one which lies on the prosecution

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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 witnesses 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.

The number of injuries is not always a safe criterion for

determining who the aggressor was. It cannot be stated as a universal

rule that whenever the injuries are on the body of the accused persons,

a presumption must necessarily be raised that the accused persons had

caused injuries in exercise of the right of private defence. The defence

has to further establish that the injuries so caused on the accused

probabilise the version of the right of private defence. Non-

explanation of the injuries sustained by the accused at about the time

of occurrence or in the course of altercation is a very important

circumstance. But mere non-explanation of the injuries by the

prosecution may not affect the prosecution case in all cases. This

principle applies to cases where the injuries sustained by the accused

are minor and superficial or where the evidence is so clear and cogent,

so independent and disinterested, so probable, consistent and credit-

worthy, that it far outweighs the effect of the omission on the part of

the prosecution to explain the injuries. [See Lakshmi Singh v. State of

Bihar (AIR 1976 SC 2263)]. A plea of right of private defence cannot be

based on surmises and speculation. While considering whether the right

of private defence is available to an accused, it is not relevant

whether he may have a chance to inflict severe and mortal injury on the

aggressor. In order to find whether the right of private defence is

available to an accused, the entire incident must be examined with care

and viewed in its proper setting. Section 97 deals with the subject

matter of right of private defence. The plea of right comprises the body

or property (i) of the person exercising the right; or (ii) of any other

person; and the right may be exercised in the case of any offence

against the body, and in the case of offences of theft, robbery,

mischief or criminal trespass, and attempts at such offences in relation

to property. Section 99 lays down the limits of the right of private

defence. Sections 96 and 98 give a right of private defence against

certain offences and acts. The right given under Sections 96 to 98 and

100 to 106 is controlled by Section 99. To claim a right of private

defence extending to voluntary causing of death, the accused must show

that there were circumstances giving rise to reasonable grounds for

apprehending that either death or grievous hurt would be caused to him.

The burden is on the accused to show that he had a right of private

defence which extended to causing of death. Sections 100 and 101, IPC

define the limit and extent of right of private defence.

Sections 102 and 105, IPC deal with commencement and continuance

of the right of private defence of body and property respectively. The

right commences, as soon as a reasonable apprehension of danger to the

body arises from an attempt, or threat, or commit the offence, although

the offence may not have been committed but not until there is that

reasonable apprehension. The right lasts so long as the reasonable

apprehension of the danger to the body continues. In Jai Dev. v. State

of Punjab (AIR 1963 SC 612), it was observed that as soon as the cause

for reasonable apprehension disappears and the threat has either been

destroyed or has been put to route, there can be no occasion to exercise

the right of private defence.

In order to find whether right of private defence is available or

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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. Similar view was expressed by

this Court in Biran Singh v. State of Bihar (AIR 1975 SC 87). (See:

Wassan Singh v. State of Punjab (1996) 1 SCC 458, Sekar alias Raja

Sekharan v. State represented by Inspector of Police, T.N. (2002 (8) SCC

354).

As noted in Butta Singh v. The State of Punjab (AIR 1991 SC 1316),

a person who is apprehending death or bodily injury cannot weigh in

golden scales in the spur of moment and in the heat of circumstances,

the number of injuries required to disarm the assailants who were armed

with weapons. In moments of excitement and disturbed mental equilibrium

it is often difficult to expect the parties to preserve composure and

use exactly only so much force in retaliation commensurate with the

danger apprehended to him where assault is imminent by use of force, it

would be lawful to repel the force in self-defence and the right of

private-defence commences, as soon as the threat becomes so imminent.

Such situations have to be pragmatically viewed and not with high-

powered spectacles or microscopes to detect slight or even marginal

overstepping. Due weightage has to be given to, and hyper technical

approach has to be avoided in considering what happens on the spur of

the moment on the spot and keeping in view normal human reaction and

conduct, where self-preservation is the paramount consideration. But,

if the fact situation shows that in the guise of self-preservation, what

really has been done is to assault the original aggressor, even after

the cause of reasonable apprehension has disappeared, the plea of right

of private-defence can legitimately be negatived. The Court dealing

with the plea has to weigh the material to conclude whether the plea is

acceptable. It is essentially, as noted above, a finding of fact.

The right of self-defence is a very valuable right, serving a

social purpose and should not be construed narrowly. (See Vidhya Singh

v. State of M.P. (AIR 1971 SC 1857). Situations have to be judged from

the subjective point of view of the accused concerned in the surrounding

excitement and confusion of the moment, confronted with a situation of

peril and not by any microscopic and pedantic scrutiny. In adjudging the

question as to whether more force than was necessary was used in the

prevailing circumstances on the spot it would be inappropriate, as held

by this Court, to adopt tests by detached objectivity which would be so

natural in a Court room, or that which would seem absolutely necessary

to a perfectly cool bystander. The person facing a reasonable

apprehension of threat to himself cannot be expected to modulate his

defence step by step with any arithmetical exactitude of only that much

which is required in the thinking of a man in ordinary times or under

normal circumstances.

In the illuminating words of Russel (Russel on Crime, 11th Edition

Volume I at page 49):

"....a man is justified in resisting by force anyone

who manifestly intends and endeavours by violence or

surprise to commit a known felony against either his

person, habitation or property. In these cases, he is

not obliged to retreat, and may not merely resist the

attack where he stands but may indeed pursue his

adversary until the danger is ended and if in a

conflict between them he happens to kill his

attacker, such killing is justifiable."

The right of private defence is essentially a defensive right

circumscribed by the governing statute i.e. the IPC, available only when

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the circumstances clearly justify it. It should not be allowed to be

pleaded or availed as a pretext for a vindictive, aggressive or

retributive purpose of offence. It is a right of defense, not of

retribution, expected to repel unlawful aggression and not as

retaliatory measure. While providing for exercise of the right, care

has been taken in IPC not to provide and has not devised a mechanism

whereby an attack may be a pretence for killing. A right to defend does

not include a right to launch an offensive, particularly when the need

to defend no longer survived.

The background facts as noted by the trial Court and the High

Court clearly show that the threat to life and property of the accused

was not only imminent but did not cease, and it continued unabated. Not

only there were acts of vandalism, but also destruction of property. The

High Court noticed that explosive substances were used to destroy the

properties of the accused, but did not specifically answer the question

as to whether destruction was prior or subsequent to the shooting by the

accused. The High Court did not find the prosecution evidence

sufficient to decide the question. In such an event the evidence of PW-

15 who was also a victim assumes importance. The High Court without

indicating any acceptable reason held on mere assumptions that his

sympathy lies with the accused. The conclusion was unwarranted, because

the testimony was acted upon by the Courts below as a truthful version

of the incident. The trial Court found that an unruly situation

prevailed in the compound of the accused as a result of the violence

perpetrated by the bandh activists who got into the place by scaling

over the locked gate and that their entry was unlawful too, besides

intimidating and assaulting PW-15 and making him flee without shutting

down the machines. The circumstances were also found to have

necessitated a right of private defence. Even the High Court, candidly

found that tense situation was caused by the deceased and his friends,

that PW-15 suffered violence and obviously there was the threat of more

violence to the person and properties, that the events taking place

generated a sort of frenzy and excitement rendering the situation

explosive and beyond compromise. Despite all these to expect the accused

to remain calm or to observe greater restraint in the teeth of the

further facts found that the accused had only PW-15 who was already

manhandled though they were outnumbered by their opponents (the bandh

activists) and whose attitude was anything but peaceful \026 would be not

only too much to be desired but being unreasonably harsh and

uncharitable, merely carried away only by considerations of sympathy for

the lives lost, on taking a final account of what happened ultimately

after everything was over. In the circumstances, the inevitable

conclusion is that the acts done by the accused were in the reasonable

limits of exercise of his right of private defence and he was entitled

to the protection afforded in law under Section 96 IPC.

Accordingly we set aside the conviction and sentence imposed. The

appeal is allowed. The bail bonds shall stand discharged so far as the

present accused is concerned.

In view of the order passed in criminal appeal no. 887 of 1997,

and conclusions arrived at therein no further orders are necessary to be

passed in SLP (Criminal) Nos. 47-49 of 1998 filed by the State of

Kerala.

Before we part with the case it needs to be noted that in the name

of Hartal or Bandh or strike no person has any right to cause

inconvenience to any other person or to cause in any manner a threat or

apprehension of risk to life, liberty, property of any citizen or

destruction of life and property, and the least any government or public

property. It is high time that the authorities concerned take serious

note of this requirement while dealing with those who destroy public

property in the name of strike, hartal or bandh. Those who at times may

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have even genuine demands to make should not loose sight of the overall

situation eluding control and reaching unmanageable bounds endangering

life, liberty and property of citizens and public, enabling anti-social

forces to gain control resulting in all around destruction with counter

productive results at the expense of public order and public peace. No

person has any right to destroy another's property in the guise of bandh

or hartal or strike, irrespective of the proclaimed reasonableness of

the cause or the question whether there is or was any legal sanction for

the same. The case at hand is one which led to the destruction of

property and loss of lives, because of irresponsible and illegal acts of

some in the name of bandh or hartal or strike. Unless those who organize

can be confident of enforcing effective control over any possible turn

of events, they should think twice to hazard themselves into such risk

prone ventures endangering public peace and public order. The question

whether bandh or hartal or strike has any legal sanctity is of little

consequence in such matters. All the more so when the days are such

where even law-enforcing authorities/those in power also precipitate to

gain political advantage at the risk and cost of their opponents. Unless

such acts are controlled with iron hands, innocent citizens are bound to

suffer and they shall be the victims of the highhanded acts of some

fanatics with queer notions of democracy and freedom of speech or

association. That provides for no license to take law into their own

hands. Any soft or lenient approach for such offenders would be an

affront to rule of law and challenge to public order and peace.