VISHWANATH versus THE STATE OF UTTAR PRADESH

Citation: [1960] 1 S.C.R. 646 · Decided: 03-09-1959 · Supreme Court of India · Bench: SYED JAFFER IMAM · Disposal: Appeal(s) allowed

Judgment (excerpt)

646 
SUPREME COURT REPORTS [1960(1)] 
'959 
The third contention of the learned Counsel for the 
Ramaswami 
appellants is a weak one. It is said that the official 
Ch•ttiar 
receiver does not claim under Meenakshi Achi, and, 
v. 
therefore, he cannot rely upon the execution petition 
The Official Receiver filed by her to save the bar of limitation. There is a 
Subba Rao f, 
fallacy underlying this argument.· The question for 
decision is not whether the official receiver claims 
under Meenakshi Achi, but whether the execution 
petitions filed by her were in accordance with Jaw. If 
as I held, at the time the previous execution petitions 
were filed, Meenakshi Achi had a valid title to execute 
the decree, the execution petitions filed by her would 
certainly be in accordance with law within the mean-
ing of art. 182(5) of the Indian Limitation Act. I, 
therefore, reject this contention. 
I959 
September 3 
In view of the aforesaid conclusions arrived at by 
me, the last two contentions based on payments of 
instalments do not arise for consideration. 
In the result, the appeal fails and is dismissed with 
costs. 
Appeal dismissed. 
VISH"V ANATH 
v. 
THE STATE OF UTTAR PRADESH 
(SYED JAFER IMAM and K. N. WANCHOO, JJ.) 
Criminal Trial-Right of private defence-When extends ta 
causing death-Whether mere abduction which is not punishable 
gives right of private defence to cause death of abductor-Husband 
trying to take away wife forcibly from her father:s house-Wife's 
brother stabbing husband and killing him-If protect.d by right of 
private defence-Indian Penal Code, I86o (XLV of I86o), ss. 97, 99 
and IOO, 
The relations between one G and his wife were strained and 
she went to live with her father B and her brother V, the appel-
lant. G, with three others, went to the quarter of B and he went 
inside and came out dragging his reluctant wife behind him. She 
caught hold of the door and G started pulling her. At this the 
appellant shouted to his father that G was adamant and there-
upon B replied that he should be beaten. The appellant took 
out a knife from his pocket and stabbed G once. The knife 
penetrated the heart of G and he died. B and the appellant were 
, s.c.tt. 
SUPREME COURT REPORTS 
647 
tried for the murder of G; B was acquitted and the appellant was 
convicted under s. 304 Part II Indian Penal Code and sentenced 
to three years rigorous imprisonment. The appellant contended 
that he had acted in the right of private defence of person under 
s. roo fifthly Indian Penal Code, which extended to the causing 
of death as G had assaulted his wife with the intention of abduct-
ing her. The respondent urged that s. roo fifthly applied only 
when the abduction was of such a nature as was punishable under 
the Penal Code. 
Held, that the appellant had the right of private.defence of the 
body of his sister which extended to the causing of death of G. 
The extended right under s. roo arose when there was the offence 
of-assault of one of the types mentioned in the six clauses of that 
section. It was not necessary that the intention with which the 
assault was committed must always be an offence itself. The 
word " abduction" used in the fifth clause of s. roo meant nothing 
more thari what was defined as "abduction" in s. 362, and it 
was not necessary, to get the protection of this clause, that the 
abduction must be of a type punishable under the Penal Code. 
Further, the appellant had not inflicted more harm than was 
necessary and was not guilty of any offence. 
Emperor v. Ram Saiya, I.L.R. 1948 All. 165, overruled. 
Jagat Singh v. King-Emperor, A.LR. 1923 Lah. 155, Daroga 
Lahar v. Emperor, A.LR. 1930 Pat. 347, Sakha v. The State, I.L.R 
1950 Nag. 508 and Dayaram Laxman v. State, A.I.R 1953 Madhya 
Bharat 152, referred to. 
CRIMINAL 
APPELLATE 
JURISDICTION: 
Criminal 
Appeal No. 32 of 1958. 
Appeal by special leave from the judgment and 
order dated April 25, 1957, of the Allahabad High 
Court in Criminal Appeal No. 992 of 1954:, arising out 
of the judgment and order dated January 25, 1954:, of 
the Additional Sessions Judge, Gorakhpur in Sessions 
Trial No. 71 of 1953. 
S. P. Sinha and S. D. Sekhri, for the appellant. 
G. 0. Mathiir and 0. P. Lal (for G. N. Dikshit), for 
the respondent. 
.. 
1959. September 3. 
The Judgment of the Court 
was delivered by 
I959 
Viskwanalh 
v. 
The State of 
Ulla• Pradesh 
W ANCHOO J.-This is an appeal by special leave 
Wanchoo ]. 
against the judgment of the Allahabad H

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