Penal Code, 1860: s.302 r/w ss.109 and 203 – Prosecution case was that appellant-A-1 was working as Forest Range Officer – On the fateful day, while he was on duty and going in his official jeep along with co-accused, the driver of his jeep, he noticed four persons (deceased driver, PW1, PW2 and one cleaner) in a lorry – Suspecting smuggling of sandalwood, he chased them and after some distance when the lorry stopped and the driver of the lorry and his associates started running, he fired a gun shot from his DBL-gun which hit the driver causing his death – It was the case of prosecution that the lorry which the deceased was driving was empty, however, the appellant after he shot the deceased, got down from his jeep and loaded sandalwood weighing 276 Kgs and also kept one SBML gun in the lorry – Thereafter, with the help of co-accused, the appellant caught hold of PW-1 and PW-2 and brought them to police station and gave the false information by lodging the complaint that he fired the gun shot to the deceased in his right of private defence – Appellant along with co-accused was tried for offence under s.302 r/w ss.109 and 203, s.36-A and E of Tamil Nadu Forest Act, 1882 and s.3 r/w s.25(1-B)(a) of Arms Act, 1959 – Appellant was convicted while co-accused was acquitted by trial court – High Court allowed the appeal in part and altered conviction of appellant under s.302 to s.304 Part II while acquitting him for offence under Arms Act and Forest Act – On appeal, held: Both the eye witnesses PWs 1 and 2 and also other two more witnesses, namely, PW-3 and PW-7 were declared hostile and, therefore, there was no evidence to prove as to how and in what manner, the incident in question took place – Prosecution was not able to prove the manner in which the incident occurred as alleged by them in their charge sheet – In this view of the matter, the appellant was entitled to be acquitted from the charges for want of any evidence against him – Tamil Nadu Forest Act, 1882 – s.36-A and E – Arms Act, 1959 –s.3 r/w s.25(1-B)(a).
Penal Code, 1860: ss.96 to 106 – Right of private defence – Appellant-A-1 was working as Forest Range Officer – On the fateful day, while he was on duty, he noticed that four persons were going in a lorry – Suspecting smuggling activity, he chased them – Thereafter, the driver of the lorry and his associates started pelting stones at them and shouted “fire them” – At that time, appellant fired a gun shot which hit the driver of the lorry resulting his death – Defence of the appellant that he fired a gun shot on the deceased party in his right of private defence, was not accepted by High Court – On appeal, held: High Court failed to appreciate that the appellant had every reason to believe that due to suspicious movement of the deceased party in the forest, they were trying to smuggle the sandalwood from the forest – The deceased party was aggressor because, they first pelted the stones and damaged the appellant’s vehicle shouting “fire them” – It was the duty of the appellant to apprehend the culprits who were involved in the activity of smuggling sandalwood and at the same time to protect himself and his driver in case of any eventuality arising while apprehending the culprits – The appellant while firing the gun shot did not target any particular person out of four as such but fired to resist their aggression towards him and his driver – If the appellant had not fired, the deceased party having said “fire them” would have either used their gun in shooting the appellant or the driver or would have run away from the spot to avoid their arrest – One gun was seized from the deceased party on their arrest which was deposited by the appellant along with his own gun in the police station while registering the FIR – The appellant being a forest ranger on duty was entitled to use his gun against the deceased party – In view of this, firing of gun shot by the appellant towards the deceased party was not unjustified.
Penal Code, 1860: ss.96 to 106 – Right of private defence – Exercise of – The right does not arise if there is time to have recourse to the protection of the public authorities, and for another, it does not extend to the infliction of more harm than is necessary for the purpose of defence – Another limitation is that when death is caused, the person exercising the right must be under reasonable apprehension of death, or grievous hurt, to himself or to those whom he is protecting; and in the case of property, the danger to it must be of the kinds specified in s.103.
Allowing the appeal, the Court
HELD: 1. The order of the Sessions Judge and the High Court show that both the eye witnesses, i.e., PW-1, PW-2 and also PW-3 and PW-7 were declared hostile. When both the eye witnesses–PWs 1 and 2 and also other two more witnesses, namely, PW-3 and PW-7 were declared hostile, there was no evidence to prove as to how and in what manner, the incident in question had occurred. [Para 25] [668-E-F]
2. The appellant took a defence that he fired a gun shot on the deceased party in his right of private defence. Sections 96 to
106 of IPC deal with right of private defence of a person involved in commission of offences under the IPC. Section 96 of IPC says that nothing is an offence, which is done in the exercise of the right of private defence. Section 97 of IPC provides that a right of private defence extends not only to the defence of one’s own body against any offence affecting the human body but also to defend the body of any other person. The right also embraces the protection of property, whether one’s own or another person’s, against certain specified offences, namely, theft, robbery, mischief and criminal trespass. For one thing, the right does not arise if there is time to have recourse to the protection of the public authorities, and for another, it does not extend to the infliction of more harm than is necessary for the purpose of defence. Another limitation is that when death is caused, the person exercising the right must be under reasonable apprehension of death, or grievous hurt, to himself or to those whom he is protecting; and in the case of property, the danger to it must be of the kinds specified in Section 103. [Paras 30, 32-33] [669-D-H]
3.1 The contents of the FIR coupled with the appellant’s evidence (DW-1) showed that there was a variation in the prosecution version and the appellant’s version on the manner in which the incident in question occurred. However, the version of the appellant on the manner in which the incident occurred is accepted. It was established on the basis of the factual scenario on the spot that the appellant had reasonable grounds for apprehending that either death or grievous hurt would be caused to him or to his driver (A-2). The incident occurred in the early morning, the appellant was patrolling in the forest in official vehicle with his driver (A-2) since overnight. By virtue of his post, he was given Jeep and the gun for the protection of forest area, forest produce, his own body and the body of others on duty with him. The deceased party having seen that the appellant was chasing their lorry made attempt to flee from the place in the first instance but after some time stopped and got down from their lorry and started pelting stones on the appellant’s jeep which suffered damage. The deceased party not only was pelting the stones but also shouting “fire them”. The appellant, in such scenario, had rightly formed a reasonable apprehension that either death or grievous hurt may cause to him or/and to his driver (A2). In these circumstances, it was enough for the appellant to also react in his self defence against the deceased party and fire from his gun towards the deceased party to save him and his driver (A-2). There was no motive attributed to the appellant towards any member of the deceased party. Having seen the incident in this perspective, firing the gun shot by the appellant towards the deceased party cannot be said to be in any way unjustified. In fact, the appellant while firing the gun shot did not target any particular person out of four as such but fired to resist their aggression towards him and his driver (A2). If the appellant had not fired, the deceased party having said “fire them” could either use their gun in shooting the appellant or A-2 or would have run away from the spot to avoid their arrest. [Paras 37, 38, 40, 44] [673-B-F; 674-B-D; 675-B-D]
3.2 The prosecution having failed to prove their case could still prove that the appellant was liable to be convicted in the light of defence version. The High Court, therefore, could have gone into the question as to whether the appellant had no right of private defence against the deceased party on such facts or whether he exceeded his right. The prosecution even failed to prove this fact while cross examining the appellant. Nothing was solicited from the appellant in his cross-examination on these two issues. It was a case where the appellant had a reasonable apprehension that the deceased party may cause him and A-2 death or grievous hurt either by pelting stones or by use of gun shot or by physical violence jointly. In these circumstances, the appellant being a forest ranger on duty was entitled to use his gun against the deceased party. [Paras 45, 46] [675-D-G] Amjad Khan v. Haji Mohammad Khan AIR 1952 SC
165 : [1952] SCR 567 ; Darshan Singh v. State of Punjab & Anr. (2010) 2 SCC 333 : [2010] 1 SCR 642 – relied on.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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