LexBHUPENDRASINH A. CHUDASAMA versus STATE OF GUJARAT
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A BHUPENDRASINH A. CHUDASAMA v. STATE OF GUJARAT NOVEMBER 4, 1997 B [M.K. MUKHERJEE AND K.T. THOMAS, JJ.] Penal Code 1860-Sections 302, 97 and 103- Murder- Armed Constable- Shot dead his superior-Defence that on suspicion as miscreant, C he fired in discharge of his official duties-Trial Court acquitted him giving him benefit of doubt-High Court convicted and sentenced the accused-On appeal, held not entitled to acquittal on the ground that the accused was discharging his official duties-Cannot claim right of private defence- Conviction and sentence confirmed. D The appellant was prosecuted for an offence under Section 302 Indian E Penal Code. The case of the prosecution, was that appellant, an armed Constable of Special Reserve Police shot at his immediate superior, a Head Constable, while the latter was walking around Khampla Dam Site. Some skirmishes developed and deceased had taken the appellant to task for failure in discharging his official duties. The appellant who was of a truculent temperament was looking for a suitable opportunity to retaliate. On the evening of the fateful day, he saw the deceased walking near the Dam, aimed his rifle and pumped four bullets into his vital parts which caused his end immediately. Post-mortem examination revealed that death of deceased was / due to firing of bullets from a firearm. The appellant while owning the act F of firing took the defence that he was doing patrolling duty, saw a flame near the tower and saw some body was moving. He suspected some miscreant was to commit mischief and thus fired in discharge of his duties. The Trial Court acquitted the appellant on the ground that the defence version was quite probable and appellant was entitled to benefit of doubt. On G appeal, the High Court reversed the acquittal and appellant was sentenced to imprisonment for life. Hence the present appeal. The contention of the appellant was that since he was discharging his official duties he was entitled to acquittal; and that he was also entitled to right of private defence under Section 103 of IPC. H 4 - B.A. CHUDASAMA v. STATE OF GUJARAT 5 Dismissing the appeal, this Court A HELD : l. The appellant is not entitled to acquittal on the ground that he was discharging his official duties. No person can claim immunity from culpable homicide merely on the ground that he killed another person in discharge of his official duties unless such killing would fall within the ambit of any of the exceptions enumerated in Chapter IV oflPC. The primordial B requirement of the said exception is that the act which killed the other person should have been done "with proper care and caution". The very fact that accused shot his own colleague at close range without knowing the identity of his target smacks of utter dearth of any care and caution. The appellant did not even remotely entertain the idea of putting forward a plea C that his act of killing the deceased was done by accident or misfortune, leave apart the other ingredients necessary to form the right under the said exception. 18-F-H; 9-A-BI 2.1. The appellant cannot claim the right of private defence envisaged under Section 103 of Indian Penal Code. The right of private defence would D commence when a reasonable apprehension of danger to property commences and such right can extend to killing another person even if there was only an attempt to commit any of the offences mentioned in the section. Such right would be available to a public servant if the property sought to be protected is a public property. But there is a condition for claiming such an extended E right if the property sought to be protected is a building. It should be a building used for human dwelling or for custody of property. If it is not a building of that type the person exercising right of private defence cannot go to the_ farthest extent of killing another person unless the threatened mischief has caused a reasonable apprehension that death or grievous hurt would otherwise be the consequence. In the instant case there was no plea at all that appellant had any apprehension of death or grievous hurt. Nor is there a case that the tower (which he feared to have been under threat of incineration) was either used for human dwelling or custody of property. Hence, there is no question of countenancing the extended right of private defence envisaged in Section 103. 19-E-H; 10-A-BI 2.2. Appellant put forw
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