LexKASHI RAM & OTHERS versus STATE OF RAJASTHAN
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+- [2008] 2 S.C.R. 101 KASHI RAM & OTHERS A v. STATE OF RAJASTHAN (Criminal Appeal No. 732 of 2008) JANUARY 28, 2008 8 .. [S.B. SINHA AND DALVEER BHANDARI, JJ.] Penal Code, 1860 - ss. 96 to 106 - Right of private defence - Exercise of - Accused proceeding to a definite destination with lethal weapons and thereafter, causing fatal c injuries as well as serious injuries on unarmed complainant party - Courts below holding that accused exceeded the right of private defence - Conviction of one accused uls 304 (Part II) and others uls 304 (Part II) rlw s. 149 ands 323 - On appeal held: Accused were aggressors and they attacked the complainant party when they were totally unarmed - Thus, they D did not have the right of private defence and could never claim ~ the same - Hence, order of courts· below with regard to exceeding the right of private defence not sustainable and set aside - ss. 304 (Part II), s. 149 & s 323. According to the prosecution case, on the fateful day, E the complainant party consisting of BS, PW 4- son of BS, PW1 and PW 17 were cultivating the disputed land. On learning about same, the accused persons along with .... others, armed with weapons went to the field and attacked the members of the complainant party and caused serious F injuries to BS, PW 4 and PW 1. BS succumbed to his injuries. PW 4 lodged an FIR. Accused pers9ns were J apprehended and on their disclosure statements made weapons were recovered. They were charged uls 302 r/w )..- s. 149, 148 and 323 IPC. The accused-appellants denied G all the incriminating evidence and pleaded that they were in possession of the said land and the complainant party wanted to dispossess them forcibly and in order to protect their land, they inflicted some injuries to the complainant 101 H 102 SUPREME COURT REPORTS [2008] 2 S.C.R. A party. The trial court accepted the prosecution case and held that the accused persons were guilty of exceeding their right of private defence of property It convicted accused K u/s 304 (Part II) IPC for causing fatal injuries to BS and four others u/s 304 (Part II) r/w s. 149 and also u/s B 323 IPC for inflicted serious injuries to the complainant party and sentenced all of them to 5 years rigorous .. imprisonment. The High Court upheld the order. Hence the present appeal. Appellant-accused persons contended that their acts C were fully covered by the right of self defence; and that since they were in possession of the land in dispute, no offence under section 304 (Part-II) IPC could be made out against them. D Dismissing the appeal, the Court HELD: 1.1 The right of private defence cannot be claimed when the accused are aggressors particularly when the members of the complainant party were totally unarmed. The right of private defence is purely preventive E and not punitive. Private defence can be used only to ward off unlawful force, to prevent unlawful force, to avoid unlawful detention and to escape from such detention. This right is available only to ward off the danger of being attacked; the danger must be imminent and very real and F it cannot be averted by a counter-attack. (Paras 33, 36 and 45) [117-E; 118-B; 122-A] Bishna alias Bhiswasdeb Mahato and Ors. v. State of West Bengal 2005 (12) ~CC 657 - relied on. G 1.2 The right of private defence is a .very valuable right and it has been recognized in all free, civilized and democratic societies within certain reasonable limits. (Para 39) [119-G] Gottipulla Venkatasiva Subbrayanam and Ors. v. The H State of Andhra Pradesh and Anr. 1970 (1) SC~ 235-relied on. i '+ KASHI RAM & OTHERS v. STATE OF RAJASTHAN 103 ; 2.1 In the instant case, the appellants were in A possession of the disputed land and the appellants had gone to take back possession of the said land from the members of the unarme·d complainant party. They inflicted fatal blow on BS and other serious injuries on the members of the complainant party. From perusal of the B entire evidence on record, it is abundantly clear that the accused appellants were the aggressor and they attacked the complainant party when they were totally unarmed. Even if the case of the accused appellants is accepted in toto that in order to take back the possession of the c disputed land some injuries were inflicted but the act of the appellants in causing death cannot be covered by the ambit of section 96 IPC. (Para 17, 24, 33 and 35) [111-C, D;
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