MUNNEY KHAN versus STATE OF MADHYA PRADESH

Citation: [1971] 1 S.C.R. 943 · Decided: 28-08-1970 · Supreme Court of India · Bench: VISHISHTHA BHARGAVA · Disposal: Case Partly allowed

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Judgment (excerpt)

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c 
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MUNNEYKHAN 
v. 
STATE OF MADHYA PRADESH 
August 28, 1970 
(V. BHARGAVA AND I. D. DUA, JJ.] 
943 
Indian Penal Code (Act 45 of 1860), ss. 96 to 101-Right of prira1e 
defence-Nat11re of-Availability in the case of a free fight. 
The appellant was charged with the offence of murder. The trial court 
observed in its judgment that it appeared that the deceased must have pick-
ed up a quarrel with the appellant's brother, that the deceased overpowered 
the appellant's brother, threw him on the ground and sat on his chest giving 
him fist blows, and that since the appellant could not prevent the deceased 
hitting his brother by the use of his fist, 
he stabbed the deceased in the 
back with a knife. The trial court found the appellant guilty of murder, 
and the High Court dismissed his appeal summarily, agreemg generally 
with the conclusions of the trial court. 
On the question of the nature of the offence, 
HELD : The appellant had exceeded his r~ht of private defence and his 
guilty of culpable homicide not amounting to murder punishable under 
the first part of s.304, I.P.C. 
(Per Bhargava, J.) On the facts stated the deceased was the aggressor 
E 
and a right of self-defence of the body of his brother had accrued to the 
·appellant. But the right is go\'erned by s. 101, l.P.C., and is subject to 
the limitations that in the exercise of the right death may not be caused. 
and that the force used should not exceed the minimum required to s:nc· 
the person in whose defence it is used. In the present case, the use of the 
knife itself was in excess of the right and it became much more excessive 
when the blow was given in a vital part of the victim's body and was, in 
the ordinary course of nature, likely to cause his death. [945 G-H; 946 A·D] 
F 
G 
H 
(Per Dua. l.) The right of private defenoe is codified in ss. 96 ''' 
I 00 I.P .C. By enacting these sections the authors of the Code wanted t,, 
except from the operation of its penal clauses classes of acts done in good 
faith for the purpose of repelling unlawful aggression. This right is avnil· 
010le against an offence and, therefore, where an act is done in exercise of 
right of private defence such an act 'cannot give rise to a right of private 
defence in favour of the aggressor in return. This would seem to be so even 
if the person exercising the right of private defence has the better of his 
aggressor provided he does not exceed ,bis right because the moment he 
exceeds it he commits an offence. There is also no right of private defence 
when there is time to have recourse to the protection of public authoriti"'. 
This right is essentially a defensive right circumscribed by the statute, and 
. should not be allowed as a pretext for vindictive, aggressive or retributive 
purpose. As this right vests even in strangers for defence of body and J!fo· 
perty of others against offences. the courts should be careful in seeing that 
no one on the mere pretext of exercise of right of private defence take, 
.\ides in a quarrel between two or more persons and inflicts injuries on one 
or the other. When two parties are having a free fight without disclosin~ 
"' to who is the initial aggressor it would be dangerous as a general rule 
944 
SUPREME COURT REPORTS 
[1971] ! S.C.R. 
to clothe either of them or a symp~thiser with a right of private defence. 
If however, one of them is shown to be 
committing an offence affecting 
human body then that would give rise to such right . When there is no 
initial 'right of private defence there can hardly be any question of exceed-
ing that right. [947 E-H; 948 A-BJ 
Jn ~he present borderline case the fac1s ot which are peculiar, there was 
no firm finding by the trial court that the deceased was guilty of unlawful 
aggression or of an offence giving rise to the right of p\'ivate of defence. 
In view of the summary dismissal of the appeal by the High Court in a 
brief order expressing general al!feement with the conclusions of the trial 
court the appellant was given the benefit of the trial court's observation 
that the deceased must have picked up a quarrel with Zulfikuar. (948 B-DJ 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 
64 of 1968. 
Appeal by special leave from the judgment and order dated 
March 29, 1966 of the Madhya Pradesh High Court in Criminal 
Appeal No. 104 of 1966. 
U. P. Singh, for the appellant. 
I. N. Shroff, for the respondent. 
The fellowing Judgments were delivered by 
Bhargava, J. This is a

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