MAHABIR CHOUDHARY ETC. versus STATE OF B!HAR

Citation: [1996] SUPP. 2 S.C.R. 165 · Decided: 01-05-1996 · Supreme Court of India · Bench: M.M. PUNCHHI, K.T. THOMAS · Disposal: Appeal(s) allowed

Judgment (excerpt)

MAHABIR CHOUDHARY ETC. 
A 
v. 
STATE OF B!HAR 
MAY 1, 1996 
B 
[MADAN MOHAN PUNCHHI AND K.T. THOMAS, JJ.] 
Indian Penal Code, 186()-Sections 97, 103-Private Defence-Right 
of-Scope-Mischief-People of another village cut open a bund, blocking 
water flowing further north-Attempt of appellants to restore C 
bund-Resisted-Appellants gunning down mischief makers-Acted in excess 
of right of private defence-Conviction u/s 304 Pait I !PC. 
Thirteen persons including appellants were prosecuted for offences 
including Section 302/149 IPC. Prosecution case that the three deceased D 
cut open a bond on a water stream which blocked the water flowing further 
north which was questioned by some of the appellants but as their protes-
tations were not heeded to by the deceased when there was exchange of 
words between the two factions, all the appellants gathered up with guns, 
lathis etc., the four appellants used guns to fire at one or the other of the 
three deceased and consequently the deceased died of gun shot injuries. E 
The four appellants were convicted only of the offence u/s 304 Part I IPC 
as the trial Court held that appellants had right of private defence of 
property as deceased committed mischief by cutting open the bund to block 
the water flow but those who used firearms had exceeded their right of 
private defence. In appeal, the High Court reversing these findings, held 
that all the 13 accused bad formed themselves into an unlawful assembly 
with the common object of murdering the three deceased and that none 
F 
had the right of private defence at the relevant time; hence liable to be 
convicted u/s 302/149 IPC. It was observed that mischief was caused to the 
property but it was not caused under such circumstances as may reasonab-
G 
ly cause apprehension in the minds of the accused persons that death or 
grievous hurt will be the consequence if such right of private defence was 
not exercised and that simply because some persons came shouting from 
another village was not enough to give rise to a reasonable apprehension 
that grievous hurt would be inflicted to the accused. This appeal had been 
filed against the judgment of the High Court. 
H 
165 
166 
SUPREME COURT REPORTS [1996] SUPP. 2 S.C.R. 
A 
Allowing the appeal, this Court 
B 
c 
HELD : Section 97 Indian Penal Code recognised right of a person 
only to defend his own or another's body but to defend his own or another's 
property even against an attempt to inflict any offensive act as against the 
property. The rule of retreat which, Common Law Courts espoused is not 
relevant under the Indian Penal Code. If a man's property is in imminent 
danger of being impaired ar attacked he has the right to resort to such 
measures as would be reasonably necessary to thwart the attempt to 
protect his property. Section 103 !PC, which deals with right of private 
defence as against an act which might be mischief or theft or criminal 
trespass, conditions that there would be reasonable apprehension that 
death or grievous hurt would otherwise be the consequence. But that 
provision deals with the farthest extent of the right of private defence as 
against the above three categories of wrongs against the property. But a 
man pitted against such wrong even against attempts thereof need not wait 
D for exercising right of private defence until the apprehension of death of 
grievous hurt is burgeoned in his mind. Penal Code envisages two 
measures of right of private defence. One is the first degree which shall 
not reach upto causing of death of the wrong doer. The other is the full 
measure ~'hich may go upto causing death. Both measures are, however, 
E 
subjected to the restrictions enumerated in Section 99. Section 104 !PC 
contains the bridle that right of private defence shall not cross the limit 
of first degree as against acts which would remain as theft, mischief or 
criminal trespass. But Section 103 recognises extension of the said right 
upto the full measure, even as against the aforesaid acts but only if such 
acts or their attempts are capable of inculcating reasonable apprehension 
F 
in the mind that death or grievous hurt would be the consequence if the 
right is not exercised in such full measure. One has the first degree of right 
of private defence even if the "Tong committed or attempted to the com-
mitted against him is theft or mischief or criminal trespass simplicitor. 
This right of private defence cannot be used to kill the wrong doer un

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