http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9

PETITIONER:

WASSAN SINGH

Vs.

RESPONDENT:

THE STATE OF PUNJAB

DATE OF JUDGMENT28/11/1995

BENCH:

MAJMUDAR S.B. (J)

BENCH:

MAJMUDAR S.B. (J)

MUKHERJEE M.K. (J)

CITATION:

1996 SCC (1) 458 JT 1995 (8) 434

1995 SCALE (6)653

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

S.B. Majmudar. J.

Appellant, Wassan Singh has brought in challenge his

conviction and sentence as imposed upon him by the High

Court of Punjab & Haryana at Chandigarh in Criminal Appeal

No.637-DB of 1981. While allowing his appeal against

conviction under Section 302 Indian Penal Code (in short

`IPC') the High Court has convicted him for the lesser

offence under Section 304 Part I, IPC and sentenced him to

undergo rigorous imprisonment for 10 years. The appellant's

grievance is that he is not liable to be convicted even

under the said provision.

In order to appreciate the grievance of the appellant a

few relevant facts leading to this appeal deserve to be

noted at the outset.

BACKGROUND FACTS :

The appellant who was accused no.1 along with two other

accused Piara Singh and Charan Singh were charged with

offences under Sections 302, 307, 325, 324, 323 read with

Section 34 of the IPC on the allegation that on 11th January

1981 at about 6.00 p.m. in the area of village Nizamwala, in

furtherance of their common intention which was to commit

the murder of one lady Smt. Bholan, the appellant did commit

murder of the aforesaid Mst. Bholan by intentionally causing

her death whereas the other two accused committed offences

under Section 302 read with Section 34 of the IPC. Accused

Piara Singh was also charged with an offence under Section

307 IPC for having fired a gun shot at one Hazara Singh with

such intention and under such circumstances that if by that

act he had caused the death of Hazara Singh he would have

been guilty of murder while the appellant was charged with

an offence under Section 307 read with Section 34 IPC. It

was also alleged that at the same time and place in

furtherance of their common intention accused Charan Singh

Voluntarily caused hurt to Hazara Singh by means of a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9

`gandasa', which is an instrument of cutting, and thereby

committed an offence punishable under Section 324 IPC

whereas appellant and Piara Singh accused were alleged to

have committed offences punishable under Section 324 read

with Section 34 of the IPC. They were similarly charged for

an offence for having caused hurt to one Bachan Singh by

means of a `gandasa', which is an instrument of cutting.

Appellant was also charged along with other co-accused for

having committed an offence under Section 325 read with

Section 34 of the IPC for having voluntarily caused grievous

hurt to one Jagir Singh. Appellant was lastly charged with

an offence under Section 27 of the Arms Act on the

allegation that on the same date, time and place he had in

his possession a single barreled 12 bore gun with intent to

use the same for an unlawful purpose, that is, to commit the

murder of Mst. Bholan and that he actually used it for the

above-said purpose thereby committing an offence under

Section 325 of the IPC.

The prosecution story briefly is to the effect that

accused Charan Singh is the sister's son of Piara Singh

accused and the appellant who belongs to village Baghewala,

is their partyman. That prosecution witnesses, Bachan Singh

and Hazara Singh, are the real brothers and Mst. Bholan

deceased was the wife of Hazara Singh and Jagir Singh is the

nephew of Bachan Singh, Piara Singh is the cousin of Hazara

Singh and Jagir Singh is the nephew of Hazara Singh. That PW

Bachan Singh was to celebrate Lohri festival in connection

with the birth of his grand-child. He went to Jagir Singh at

village Akku Masteke on 10th January 1981 to request him

(Jagir Singh) to join the celebration of Lohri festival at

his house. On 11th January 1981 at about 9.00 a.m. Jagir

Singh came to the house of Bachan Singh and remained there

upto 6.00 p.m. in connection with the distribution of sweets

on the occasion of the birth of his (Bachan Singh's) grand-

child. At about 6.00 p.m. Hazara Singh, his wife Mst.

Bholan, his brother Bachan Singh came out of the house along

with Jagir Singh to see the letter off. They were standing

in front of the gate of his (Hazara Singh's) house. At that

time electric light which was fitted at his house, was

illuminating in which a human being could be identified.

Jagir Singh was going to connect his tractor with his

trolley. Meanwhile, Piara Singh accused armed with his

D.B.B.L. gun, Wassan Singh accused armed with a single

barrelled gun and Charan Singh accused armed with `grandasa'

came to the house of Hazara Singh and Bachan Singh raising

`lalkaras'. Charan Singh accused raised a `lalkara' that he

and his companion co-accused were going to teach Hazara

Singh and others a lesson for parking the tractor trolley in

the lane. Piara Singh accused opened the attack by firing

from his D.B.B.L. gun towards Hazara Singh. However, the

fire missed the target as he (Hazara Singh) had knelt down

to save himself and the fire passed over his head.

Thereafter appellant fired from his single barrelled gun and

the shot hit Mst. Bholan deceased near he pelvic region. On

receipt of this injury, she fell down on the ground.

Thereafter Charan Singh accused dealt a `gandasa' blow on

the head of Bachan Singh from its sharp side. Meanwhile

Piara Singh accused dealt blow with the butt of his gun on

the left hand of Jagir Singh and another blow from the said

butt on his right ear. Then Charan Singh accused dealt a

`gandasa' blow on the head of Bachan Singh from its reverse

side. Thereupon Hazara Singh, Bachan Singh and Jagir Singh

raised `raula' and on this, the accused decamped with their

weapons. Before that, Bachan Singh and Hazara Singh also

caused injuries on the person of appellant in their self-

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9

defence. Thereafter the PWs arranged a car in which Bholan

was placed. Bachan Singh and Hazara Singh accompanied her to

Civil Hospital, Forezepore, at a distance of 14/15

kilometers. The car left village Nizamwala at about 6.45

p.m. but Bholan died on the way at a distance of 6/7 miles

near village Sodhiwala on their way to the Hospital.

On receipt of telephonic message, Inspector Balvinder

Singh of Police Station Mallanwala went to the Civil

Hospital, Ferozepore, and recorded the statement of Hazara

Singh, which formed the basis of the First Information

Report. The inspector held inquest and sent the dead body of

Smt. Bholan to the mortuary for autopsy. Thereafter, he went

to the spot, lifted blood-stained earth and recovered one

empty catridge case from there. The accused were arrested on

17th January 1981 and their weapons were taken into

possession.

After investigation the appellant along with his co-

accused were chargesheeted and ultimately their case was

committed to the court of Sessions for trial. The learned

Trial Judge after recording evidence and hearing the rival

versions took the view that appellant was guilty of an

offence under Section 302 of the IPC for killing Smt. Bholan

and ordered him to undergo imprisonment for life and to pay

a fine of Rs.3,000/- or in default to further undergo

rigorous imprisonment for one and a half years, while Piara

Singh and Charan Singh accused were sentenced under Section

302 read with Section 34 of IPC and were directed to undergo

imprisonment for life and to pay a fine of Rs.1,000/- each

and in default of payment of fine to further undergo

rigorous imprisonment for six months each. Piara Singh

accused was sentenced under Section 307 IPC and was directed

to undergo rigorous imprisonment for one and a half years

and to pay a fine of Rs.300/- and in default of payment of

fine to further undergo rigorous imprisonment for two months

while the appellant and another accused Charan Singh were

sentenced under Section 307 read with Section 34 IPC and

were directed to undergo rigorous imprisonment for six

months each and to pay a fine of Rs.100/- each and in

default of payment of fine to further undergo rigorous

imprisonment for one month each. Appellant was also

sentenced under Sections 324 and 325 read with Section 34

for the injuries caused to the concerned PWs as mentioned in

the charge. He was sentenced to undergo rigorous

imprisonment for six months under Section 27 of the Arms

Act.

The aforesaid decision of the Sessions Court resulted

in criminal appeal moved by the appellant and the other two

accused Piara Singh and Charan Singh in the High Court of

Punjab & Haryana at Chandigarh. The Division Bench of the

High Court after hearing the contesting parties came to the

conclusion that the co-accused Piara Singh and Charan Singh

deserved to be acquitted of the offences with which they

were charged and the appeal qua them was fully allowed while

so far as the appellant was concerned, he was acquitted of

offences under Section 302, Section 307 read with Section

34, Sections 324 and 325 read with Section 34 I.P.C.

However, he was held guilty of an offence under Section 304

Part I, IPC. He was sentenced as aforesaid. His conviction

and sentence under Section 27 of the Arms Act were also

maintained. That is how the appellant is before us in the

present appeal.

Learned advocate appearing for the appellant contended

that when the High Court came to the conclusion that the

appellant had a right of private defence of body having

received number of injuries in the incident, the High Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9

instead of carrying this conclusion to its logical end,

wrongly assumed that the appellant had exceeded his right of

private defence of body as his reasonable apprehension could

be of having caused simple hurt at the hands of the

complainant party and, therefore, he had a right to give

only grievous hurt but could not have caused any fatal

injury by the use of his firearm. It was vehemently

contended that looking to the evidence on record the

aforesaid finding of the High Court is not well sustained.

Learned counsel for the respondent State of Punjab on the

other hand tried to support the reasoning and the final

conclusion to which the High Court reached. In our view the

decision of the High Court to the effect that the appellant

had exceeded the right of private defence cannot be

supported on the evidence on record. It will be profitable

to extract what the High Court has said in this connection

in the penultimate paragraph of its judgment at page 15 :

"...Wassan Singh appellant and

Dalip Singh had sustained as many as 12

injuries and out of them 2 injuries on

the person of Wassan Singh and one

injury on the person of Dalip Singh were

on the vital parts of their bodies. In

such a situation, the accused party

could legitimately harbour the

apprehension that the complainant party

would cause them simple hurt. But Wassan

Singh appellant had over stepped the

legal limits of the defence of person by

firing a shot from his gun which hit

Smt. Bholan and proved fatal. The

occurrence appears to have taken place

all of a sudden and it was not a pre-

planned attack. When Wassan Singh

appellant apprehended simple hurt at the

hands of the compainant party, he had

the right to give a grievous hurt but he

obviously exceeded the right of private

defence of his person and caused one

fire arm injury, which proved fatal.

Consequently Wassan Singh is found

guilty for an offence under section 304

Part I, Indian Penal Code..."

Now it must be noted that according to the High Court the

appellant had a right of private defence as he had sustained

number of injuries in the incident. So far as his injuries

are concerned, Dr. Jaspal Singh, PW.1 has described the

injuries by stating as under :

"I conducted medico legal

examination on the person of Wassan

Singh accused and found the following

injuries on his person:-

1. Incised wound of the size 5.5 cm x 1

cm bone deep at the right front

pariental region 9.5 cm from the right

eye-brow, obliquely placed and 8 cm from

the right pinna. Blood clot was present.

X-ray was advised.

2. Swelling of the size 3.5 cm x 3.5 cm

on the left side of the fore-head 1.5 cm

above the left eye-brow. X-ray was

advised.

3. Reddish swelling of the size 5 cm x

3.5 cm with overlying abrasion 2 cm x

0.5 cm, at the back and upper part of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9

left fore-arm.

4. Swelling of the size 2.5 cm x 2.5 cm

with overlying lacerated wound 0.75 cm x

0.25 cm back and middle of left middle

finger of hand. X-ray was advised.

5. Swelling 1 cm x 1.5 cm at the tip of

middle finger of left hand. X-ray was

advised.

6. Abrasion 0.5 cm x 0.5 cm on medical

aspect and middle of left index finger.

7. Reddish contusion 5.5 cm x 2 cm at

the upper and lateral aspect of right

upper arm. X-ray was advised.

8. Reddish contusion 5 cm x 3 cm on the

front and middle of right upper arm.

9. Abrasion 3 cm x 2 cm on front of

right elbow joint.

The patient was conscious. Pulse

was 72 per minute. B.P. 130/70. Nature

of the injuries. Injuries nos :

1,2,3,4,5 and 7 were kept under

observation for X-ray. Injuries nos:

3,6,8 and 9 were declared simple. The

probable duration of the injuries was

within six hours. The weapon declared

for injury no.1 was sharp edged. Rest

all by blunt weapon. On receiving X-ray

report No.10/60, dated 13.1.1981,

injuries nos : 1,2,4,5, and 7 were

declared simple."

Now it becomes at once clear that the appellant had

received as many as nine injuries out of which first two

injuries were on a very vital part, namely, on his head and

injury no.1 was an incised wound which was caused by a

sharp-edged weapon. Under these circumstances if the

appellant fired one shot from his gun in his self-defense it

could not be said that he had exceeded the right of private

defence as the nature of assault by the complainant party

which left him with the aforesaid injuries certainly could

be said to have caused a reasonable apprehension in his mind

that grievous hurt would otherwise be the consequence of

such an assault. In this connection it will be profitable to

look at Section 100 of the Indian Penal Code which reads as

under :

"100. When the right of private defence

of the body extends to causing death.--

The right of private defence of body

extends, under the restrictions

mentioned in the last preceding section,

to the Voluntary causing of death or of

any other harm to the assailant, if the

offence which occasions the exercise of

the right be of any of the descriptions

hereinafter enumerated, namely :-

First:- Such an assault as may

reasonably cause the apprehension that

death will otherwise be the consequence

of such assault;

Secondly:- Such an assault as may

reasonably cause the apprehension that

grievous hurt will otherwise be the

consequence of such assault;

Thirdly.- An assault with the intention

of committing rape;

Fourthly.- An assault with the intention

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9

of gratifying unnatural lust;

Fifthly.- An assault with the intention

of kidnapping or abducting;

Sixthly.- An assault with the intention

of wrongfully confining a person under

circumstances which may reasonably cause

him to apprehend that he will be unable

to have recourse to the public

authorities for his release."

It is not the case of the prosecution that any of the

restrictions mentioned in Section 99 can be invoked by the

prosecution against the appellant. Once that is so, clause

`secondly' of Section 100 would squarely get attracted. It

is difficult to appreciate the reasoning of the High Court

that the reasonable apprehension in the mind of the

appellant who had received two injuries on his head and

seven other injuries on his body would be the apprehension

that only simple hurt would be caused to him and not

grievous hurt. It is true that the first injury caused on

his head had fortunately not resulted into a fracture but

when it was caused with a sharp cutting instrument on the

vital part of his body, namely, right side of head, it

cannot be gainsaid that at least a reasonable apprehension

would arise in his mind at the spur of the moment that if he

does not retaliate by using his weapon, namely, the gun with

which he was armed he would certainly suffer at least a

grievous hurt as a consequence of the assault by the c

party. Under these circumstances the right of private

defence of body available to the appellant would extend to

even causing death. It is of course true that his, gun shot

unfortunately hit an innocent person like Smt. Bholan who

was present on the scene of occurrence but as at the very

same time and place the appellant had suffered an assault at

the hands of the assailants comprising of the complainant

party, right of private defence of body which would extend

to even causing death of the assailant would arise in favour

of the appellant on the facts of the present case and in

exercise of that right if death is caused not of the

assailant but of any other person it cannot be said that the

right of private defence extending up to causing death of

the assailant would not be available to the accused qua even

an innocent party which got fatally hurt on account of the

exercise of such a right of private defence which ensured

for the appellant under Section 100 clause secondly of the

IPC. It is obvious that if an accused with an intention to

kill his victim fires a shot at him which misses the target

and hits any other innocent person fatally he would remain

guilty of an offence of murder but if the accused had no

such intention and was protected by right of private defence

under the situation and circumstances in which it could

extend to even causing death of assailant as laid down by

Section 100 and if in exercise of that right of private

defence the blow fatally falls on an innocent person the

action would still remain protected under Section 100 of the

IPC. In this connection we may refer to Section 301, IPC

which reads as under :

"301. Culpable homicide by causing death

of person other than person whose death

was intended.- If a person, by doing

anything which he intends or knows to be

likely to cause death, commits culpable

homicide by causing the death of any

person, whose death he neither intends

nor knows himself to be likely to cause,

the culpable homicide committed by the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9

offender is of the description of which

it would have been if he had caused the

death of the person whose death he

intended or knew himself to be likely to

cause."

For applicability of that Section the act must amount to

culpable homicide in the first place. If the act is not

culpable at all, then even if it results into homicide of an

innocent person, in view of Section 100 IPC as in the

present case, Section 301 will have no operation.

While judging the nature of apprehension which an

accused can reasonably entertain in such circumstances

requiring him to act on the spur of moment when he finds

himself assaulted, by number of persons, it is difficult to

judge the action of the accused from the cool atmosphere of

the court room. Such situations have to be judged in the

`light of what happens on the spur of the moment on spot and

keeping in view the normal course of human conduct as to how

a person would react under such circumstances in a sudden

manner with an instinct of self-preservation. Such situation

have to be judged from the subjective point of view of the

accused concerned who is confronted with such a situation on

spot and cannot be subjected to any microscopic and pedantic

scrutiny. In this connection it is profitable to refer to

two decisions of this Court. In the case of Mohd. Ramzani v.

State of Delhi (1980 Supp. SCC 215), a Division Bench of

this Court speaking through Sarkaria, J. made the following

pertinent observations :

"...the onus which rests on an accused

person under Section 105, Evidence Act,

to establish his plea of private defence

is not as onerous as the unshifting

burden which lies on the prosecution to

establish every ingredient of the

offence with which the accused is

charged, beyond reasonable doubt. It is

further well established that a person

faced with imminent peril of life and

limb of himself or another, is not

expected to weigh in `golden scales' the

precise force needed to repel the

danger. Even if he in the heat of the

moment carries his defence a little

further than what would be necessary

when calculated with precision and

exactitude by a calm and unruffled mind,

the law makes due allowance for it..."

In the case of Deo Narain v. The State of U.P. (1973 (1) SCC

347), this Court was concerned with a situation where the

accused had received a blow on head by a `lathi' and in

self-defence he had used his spear in retaliation. While

holding that the accused was entitled to the right of

private defence extending to even causing death, in such a

case, he was acquitted of the offence under Section 302 IPC.

In this connection Dua, J., speaking for this Court in

paragraph 5 of the Report has made these pertinent

observations :

"In our opinion, the High Court does

seem to have erred in law in convicting

the appellant on the ground that he had

exceeded the right of private defence.

What the High Court really seems to have

missed is the provision of law embodied

in Section 102, I.P.C. According to that

section the right of private defence of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9

the body commences as soon as a

reasonable apprehension of dager to the

body arises from an attempt or threat to

commit the offence, though the offence

may not have been committed, and such

right continues so long as such

apprehension of danger to the body

continues. The threat, however, must

reasonably give rise to the present and

imminent, and not remote or distant

danger. This right rests on the general

principle that where a crime is

endeavored to be committed by force, it

is lawful to repel that force in self-

defence. To say that the appellant could

only claim the right to use force after

he had sustained a serious injury by an

aggressive wrongful assault is a

complete misunderstanding of the law

embodied in the above section. The right

of private defence is available for

protection against apprehended unlawful

aggression and not for punishing the

aggressor for the offence committed by

him. It is a preventive and not punitive

right. The right to punish for the

commission of offences vests in the

State (which has a duty to maintain law

and order) and not in private

individuals. . ............. the

approach of the High Court that merely

because the complainat's party had used

lathis, the appellant was not justified

in using his spear is no less

misconceived and insupportable, During

the course of a marpeet, like the

present, the use of a lathi on the head

may very well give rise to a reasonable

apprehensions that death or grievous

hurt would result from an injury caused

thereby. It cannot be laid down as a

general rule that the use of a lathi as

distinguished from the use of a spear

must always be held to result only in

milder injury. Much depends on the

nature of the lathi, the part of the

body aimed at and the force used in

giving the blow. Indeed, even a spear is

capable of being so used as to cause a

very minor injury. The High Court seems

in this connection to have overlooked

the provision contained in section 100,

I.P.C. We do not have any evidence about

the size or the nature of the lathi. The

blow, it is known, was aimed at a

vulnerable part like the head. A blow by

a lathi on the head may prove

instantaneously fatal and cases are not

unknown in which such a blow by a lathi

has actually proved instantaneously

fatal. If, therefore, a blow with a

lathi is aimed at a vulnerable part like

the head we do not think it can be laid

down as a sound proposition of law that

in such cases the victim is not

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9

justified in using his spear in

defending himself. In such moments of

excitement or disturbed mental

equilibrium it is somewhat difficult to

expect parties facing grave aggression

to cooly weigh, as if in golden scales,

and clamly determine with a composed

mind as to what precise kind and

severity of blow would be legally

sufficient for effectively meeting the

unlawful aggression. No doubt, the High

Court does seem to be aware of this

aspect because the other accused persons

were given the benefit of this rule. But

while dealing with the appellant's case

curiously enough the High Court has

denied him the right of private defence

on the sole ground that he had given a

dangerous blow with considerable force

with a spear on the chest of the

deceased though he himself had only

received a superficial lathi blow on his

head. This view of the High Court is not

only unrealistic and unpractical but

also contrary to law and indeed even in

conflict with its own observation that

in such case the matter cannot be

weighed in scales of gold."

The facts of the present case are almost parallel to the

facts of the aforesaid case. Consequently it must be held

that the appellant had a right of private defence of body

which extended to even causing death and in exercise of that

right if he fired one gun shot which unfortunately killed an

innocent person that is, Smt. Bholan, it cannot be said that

he was guilty of an offence even under Section 304 Part of

the IPC on the ground that he had exceeded his right of

private defence. Consequently the conviction of the

appellant under Section 304 part I, IPC as pendered by the

High Court is quashod and set aside. The High Court has

already acquitted the appellant of charges under Sections

307, 324 and 325 of the IPC. So far as his conviction under

Section 27 of the Arms Act is concerned even that would not

survive as it could not be said that he has used his gun of

any unlawful purpose, that is to commit culpable homicide of

Mst. Bholan not amounting to murder. The appeal is

accordingly allowed. Accused is no bail. His bail bound

shall stand discharged.