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PETITIONER:

MOHINDER PAL JOLLY

Vs.

RESPONDENT:

STATE OF PUNJAB

DATE OF JUDGMENT14/12/1978

BENCH:

UNTWALIA, N.L.

BENCH:

UNTWALIA, N.L.

REDDY, O. CHINNAPPA (J)

CITATION:

1979 AIR 577 1979 SCR (2) 805

1979 SCC (3) 30

ACT:

Indian Penal Code, 1860 (Act 45 of 1860) Ss. 99, 101,

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-I.

HEADNOTE:

There was a dispute between the appellant, a factory

owner and his employees in regard to wages, during the

period of their lay-off.

The prosecution alleged that on the day of the

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 appellant 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 leave him alive and showered brickbats at the factory

premises causing damage to the appellant's property.

Apprehending imminent 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 workers might have 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 brickbats 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 deceased. 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.

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In appeal to this Court it was contended on behalf of

the appellant that in the exercise of his right of private

defence the appellant was entitled to and justified in law

in using force even to the extent of causing death although

he never intended to kill the deceased or anyone. On the

facts and circumstances of the case, it did not come within

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 fine

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 C].

806

(1) The High Court was right in not finding the

appellant guilty of having committed culpable homicide

amounting to murder within clauses Firstly, Secondly or

Thirdly 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 injury as

was likely to cause death. Dehors Exception 2, he had no

excuse for committing the said act. [813 D-E]

In the present case the workers' demand for wages was

not legal. The workers raised provocative slogans and did

throw brickbats damaging the appellant's property and

endangering it to further damage. But that by itself could

not give any right of private defence of person to the

appellant. There is no evidence to show that the workers had

broken the barbed wire or that some 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, which 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 passed

just over the boundary wall could and did hit the deceased

killing him instantaneously. [812C-813C]

2. (a) In the matter of exercise of the right or

private defence of property or 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 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 person or property or both. But the

exercise of this right is 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 is provided for in s. 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 subject to the

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restrictions mentioned in s. 99. This did not extend to the

inflicting of so much harm to the deceased and causing his

death, nor does the right of private defence of property

available to an accused extend to causing death, unless it

is covered by any of the clause of s. 103. [814 B]

(c) When mischief is caused to property it must be

shown that it was caused under such circumstances as may

reasonably cause apprehension that death or grievous hurt

would be the consequence if such right of private defence

was not exercised. A mere claim of such apprehension is not

enough. The court on objective tests and on the facts and

circumstances of each case must arrive at the conclusion

that the situation was such as was likely to reasonably

cause such apprehension. [814 D-E]

807

(d) The right of private defence of property in the

appellant's case extended to causing of any harm other than

death. The appellant 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 F]

(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. He did so without

premeditation and without any intention of doing more harm

than was necessary for the purpose of such defence. He

thought that by indulging in this 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 the act knowing 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-H]

3. If the accused commits an act while exercising the

right of private defence by which death is caused either

with the intention of causing death or with the intention of

causing such bodily injury as is likely to cause death then

he would be guilty under Part-I. On the other hand if before

the application of any of the Exception of s. 300 it is

found that he was guilty of murder within the 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 injury as was likely to

cause death. In the instant case the appellant could be

convicted only under Part-II of s. 304 and not Part-I.

[815A-C]

JUDGMENT:

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 No.303 of 1969.

A. N. Mulla, Harbans Singh and Faqir Chand for the

Appellant.

Hardev Singh for the Respondent.

The Judgment of Court was delivered by

UNTWALIA, J.-The appellant in this appeal by special

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leave was convicted by the Additional Sessions Judge,

Jullundur under section 304 Part-I, Indian Penal Code and

sentenced 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

808

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.

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 Ext. 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 occurrence 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, 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

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

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decided not to join the work until their wages were paid.

The factory gates were closed and a big crowd of labourers

collected outside. They became violent. They shouted very

abusive and obnoxious slogans and were saying that they

would not leave the owner of the factory alive that day.

They showered brick-bats 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 of private defence of property and

person, Bansi Lal, the appellant's driver fired the shot

from the revolver and not he. The labourers had started

breaking the barbed wire fixed on the boundary wall of 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 of 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 borne 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) Sub-

Inspector, 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

810

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 purpose 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."

(4) "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 5

1/2 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

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accused and broke the glass of his table is

false and incorrect."

(6) The mob hurled bricks-bats on the building

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.

811

Mr. A. N. Mulla appearing for the 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 his 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 kill any one. It was further submitted that the

workmen were the aggressors. They had thrown brick-bats even

inside the 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 down 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 was 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.

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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 in the case we have come to the

conclusion that none of the findings recorded by the Courts

below is such or so erroneous that we can 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

812

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 injury 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

813

slogans raised by the workers were more offensive and

provocative than claimed by them. But we are not prepared to

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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 51/2 high. The

appellant came out of his office room and stood on the THARI

which was about 1 1/2 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 wall 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 just 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 '1stly,

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 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 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

814

the purpose of defence." As to when the right of private

defence of the body extends to causing death is provided for

in section 100. 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 defence of his

properly but also his body to a limited extent with in 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. Mulla 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

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right of private defence is not exercised.

Mischief was caused to his property but it was not caused

under such circumstances as may reasonably cause

apprehension in his mind that death or grievous hurt would

be the consequence if such right of private defence was not

exercised. A mere claim of such apprehension is not enough.

The Court on objective test and on the facts and

circumstances 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

apparently the murder which he committed within the meaning

of clause '4thly' 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 harm

than was necessary for the purpose of such defence. He

thought that by indulging in this 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 the brick-bats. 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 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 workers standing on the

other side of the boundary wall.

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 right of private defence

by which the death is 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 Exceptions of section 300 it is found that he was

guilty of murder within the 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 persuaded to let off the appellant with

an imposition of fine only. We, however, thought that

sentence of three years' rigorous 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 us 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 years both

mentally and financially. 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

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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 the result the appeal is dismissed but subject to

the modification made above in regard to the appellant's

conviction and sentence.

N.V.K. Appeal dismissed.

816