Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8
PETITIONER:
MOHAMMAD KHAN & ORS.
Vs.
RESPONDENT:
STATE OF MADHYA PRADESH
DATE OF JUDGMENT21/10/1971
BENCH:
ACT:
Indian Penal Code, ss. 96 to 106--Scope--Right of Private
defence--Exercise of the right when justified.
HEADNOTE:
The, inhabitants of village S who were all Muslims were
divided into two groups. The relations between them were
very much strained : so much so that one group felt
compelled to leave that village and shift to a new site for
residence where they formed a new village called NS. The
old village S was thereafter called JS. Differences between
the two groups, however, remained unresolved and the
bitterness did not abate. On the day of Id in February,
1965 residents of both the above villages went to Sanwar
Mosque for offering prayers. The people from the old
village (JS) had to pass through the new village (NS) for
going to the Mosque. After the prayers when the inhabitants
of JS were returning to their village they were confronted
by armed inhabitants of NS at the outskirts of their
village. There were attacks and counterattacks between the
rival groups belonging to the two villages resulting in
casualties and also injuries to several persons on both
sides. This occurrence gave rise to two cross-cases and
both groups were separately tried by the same Judge. The
prosecution succeeded in securing conviction of some accused
persons in both the cases. The plea of the right of private
defence raised by both sides was rejected.
On appeal in the High Court both sides repeated their plea
of self defence which was negatived.
On appeal by special leave.
HELD : (i) the people of village JS had a right to for
prayers to Sanwar Mosque on the day of Id and merely because
the only route to the Mosque passed through village NS the
inhabitants of which were inimical towards them, they could
not be deprived of the right to use that route. When in the
lawful and bonafide exercise of their right to go back from
the Mosque to their village by that route the inhabitants of
village JS were confronted by the inhabitants of village NS
who, armed with dangerous weapons, were waiting for them,
they were fully justified in using force in defending
themselves against unlawful aggression.
When enacting ss. 96 to 106, I.P.C, the legislature clearly
intended to arouse and encourage manly spirit of self-
defence amongst the citizens, when faced with grave danger.
The right of private defence is designed to serve a social
purpose and deserves to be fostered within the prescribed
limits. On the facts and circumstances of the case the
people from villages JS are held to have justifiably
exercised the right of self defence and the appeal is
allowed and the appellants (Cr. A. No. 204 of 1967)
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8
acquitted. [160 B]
(ii) As regards the other appeal (Cr. A. No. 83/68) since
the people from village NS were aggressors, they had no
right of private defence against the people from village JS
and accordingly Cr. A. No. 83/68 fails and is dismissed.
153
G. V. S. Subramanyam v. State of A.P., A.I.R. 1970 S.C.
1079, referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeals Nos. 204
of 1967 and 83 of 1968.
Appeals by special leave from the judgment and order dated
February 27, 1967 of the Madhya Pradesh High Court, Indore
Bench in Criminal Appeals Nos. 238 and 249 of 1965.
R. L. Kohli, for the appellants (in Cr. A. No. 204 of
1967).
Ganpat Rai and S. K. Sabharwal, for the appellants in Cr.
A. No. 83 of 1968).
M. N. Shroff and 1. N. Shroff , for the respondent (in both
the appeals).
The Judgment of the Court was delivered by
Dua, J. These two appeals by special leave arise out of
common judgment of the High Court of Madhya Pradesh which
disposed of two criminal appeals by two rival factions
belonging to two different villages situated at a small
distance from each other which were involved in the
occurrence in question dated February 4, 1965.
Village Siloda in Tehsil Sanwer, district Indore was inha-
bited by Muslims but it was divided into two groups, the
relations between whom were strained and differences rose to
such a pitch that one group felt compelled to leave the
village and shift to a new site for their residence. The
new village formed by this group was called Naya Siloda.
The original village Siloda was thereafter given the
name of Juna Siloda. It appears that in spite of the
departure of one group for Naya Siloda the differences
between the two groups remained unresolved and the
bitterness did not abate. The two villages virtually became
inimical to each other. The animosity between the two
villages was not confined to any specified individuals but
the entire population of each village considered itself as
the enemy of the entire population of the other.
The incident giving rise to the two cross-cases which are
the subject matter of the two appeals before us took place
on February 4, 1965 which was the day of id. Many people
had collected at Sanwer mosque to offer their prayers and
the residents of the two Silodas had also gone there in the
morning. They met at the prayer time but they apparently
remained peaceful at that auspicious moment. Some evidence
does seem to 11-L256Sup.CI/72
154
have been led suggesting that some threats were given by the
inhabitatants of Juna Siloda to the inhabitants of Naya
Siloda. According to the High Court it was not possible to
base a firm conclusion in support of this allegation. After
the prayer was over the inhabitants of Juna Siloda on their
way back to their village had to pass through Naya Siloda.
In the opinion of the High Court the residents of Juna
Siloda had gone to Sanwer in a cart with children and
weapons. The inhabitants of Naya Siloda also went there but
it was a matter of controversy whether they too had weapons
with them. After the conclusion of the prayer the Naya
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8
Siloda people with weapons in their hands were found waiting
on the route at a small distance from their village. The
inhabitants of Juna Siloda, after sending their children in
advance, back to the village, came by the same route and
were confronted by the Naya Siloda people on the outskirts
of their village. At that spot two old men out of the
inhabitants Of Juna Siloda, namely, Rasul Khan and Nazim
Khan, got down from the carts and proceeded to pacify the
inhabitants of Naya Siloda and to plead with them to live
peacefully. Without giving any definite finding as to
whether these two persons were challenged by the inhabitants
of Naya Siloda, according to the High Court, there was an
attack and a counter-attack in which fire arms were used by
the inhabitants of Naya Siloda. The inhabitants of Juna
Siloda also got down from the carts and killed Latif Khan of
the opposite faction and seriously injured several other
members of the Naya Siloda group. The inhabitants of Naya
Siloda also killed Majid and Yasin of the Juna Siloda group
and injured several others, the number of the injured on
both sides being almost equal. Amongst the injured on the
Naya Siloda side were Abdul Karim, Amir Khan, Chhote Khan
son of Ramzan, Garu Khan, Chhote Khan son of Latif, Kallu
Khan and Munshi Khan. Amongst the rival faction the persons
seriously injured were Roshan Khan, Manjoor Hussain, Abdul
Kadar, Mohammad Khan, Najini Khan, Kallu Khan and Faqru.
These injured persons were on both sides in addition to
those who had lost their lives. The persons out of the
group from June Siloda who were arrested after investigation
were charged, under s. 302, I.P.C. for the muder of Latif
Khan, and under s. 148, I.P.C. for being members of the
unlawful assembly which had the common object of committing
the murder of Latif Khan and of causing injuries to the
inhabitants of Naya Siloda. They were further charged under
s. 307, I.P.C. for attempting to commit murder of the
persons mentioned earlier to have been seriously injured.
Charges under ss. 302 and 307, I.P.C. read with s. 149,
I.P.C. were also framed in the alternative for the offences
for which charges under ss. 302 and 307, I.P.C. were framed.
155
The inhabitants of Naya Siloda who were arrested and put up
for trial were charged for the murder of Yasin Khan and
Majid Khan under S. 302, I.P.C. and also charged under S.
148, I.P.C. with the common object of murdering and causing
hurt to the people of Juna Siloda. They were also in addi-
tion charged under S. 307, I.P.C. for committing the murder
of the people mentioned earlier to have received serious
injuries. In their case too charge on identical lines under
ss. 302 and 307, I.P.C. read with s. 149, I.P.C. was framed
in the alternative for the offences which were the subject
of charge under ss. 302 and 307, I.P.C.
The two trials were held by the same Judge. In the trial of
the accused from Juna Siloda, Mohammad Khan, Roshan Khan,
Rasul Khan, Munshi Khan, Mohd. Hussain, Chhote Khan, Kallu
Khan, Shakoor, Nazim, Faqru Khan and Manjoor Hussain were
convicted under S. 302 read with s. 149, I.P.C. and sen-
tenced to rigorous imprisonment for life. The charge under
S. 148, I.P.C. was also proved and on this count they were
sentenced to rigorous imprisonment for two years. Chhote
Khan was convicted under s. 325, I.P.C. and sentenced to
three years’ rigorous imprisonment. Mohammad Hussain, Chitu
Khan, Mahrat and Mohammad Khan were also convicted under S.
323, I.P.C. and sentenced to rigorous imprisonment for six
months each. Kallu was convicted under s. 324, I.P.C. and
sentenced to rigorous imprisonment for one year. All the
sentences were to run concurrently. All the accused were
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8
acquitted of the substantive offences under ss. 302 and 307
and also under S. 307 read with s. 149, I.P.C.
In the case against the accused from Naya Siloda all of them
were convicted under s. 302 read with S. 149, I.P.C. for the
murder of Yasin Khan and Majid and sentenced to rigorous
imprisonment for life. They were further held guilty of the
offence under S. 148, I.P.C. and sentenced to rigorous
imprisonment for two years each. Kallu Khan and Abdul Karim
were also convicted under S. 326, I.P.C. and sentenced to
rigorous imprisonment for three years. Amir Khan was
convicted of an offence under S. 324, I.P.C. and sentenced
to rigorous imprisonment for one year. Chhote Khan son of
Ramjan and Gammu Khan were in addition sentenced to rigorous
imprisonment for six months each under S. 323, I.P.C. All
the sentences in their case were also to run concurrently.
The High Court first considered the case against the accused
from Juna Siloda. The only point raised on their behalf was
that they had a right of private defence and whatever
injuries were inflicted by them were in the exercise of that
right. According
156
to their case they carried the weapons because they were
always in an apprehension of assault , from the inhabitants
of Naya Siloda. It may be pointed out that the trial court
had not accepted the right of private defence pleaded by
either side and according to that court this was a case. of
free fight there being no occasion for the exercise of the
right of private defence on the part of either faction. It
was on this basis that both parties were convicted as
already stated. After considering the arguments addressed
before it the High Court considered one basic fact to be
clear that none of the witnesses had seen how the assault
had started and all that could be said was that somehow the
quarrel did start between the two factions. The fight had
taken place on the cart track and both groups which were
inimical to each other met there when they had arms with
them and they both were seen assaulting their opponents.
The High Court, after considering the evidence on the record
and the circumstances of the case, came to the conclusion
that the object of Juna Siloda people was to chastise the
Naya Siloda people and this appeared to be evident from the’
circumstance that they had sent back their children earlier
and they took the path through Naya Siloda. Since they were
aware of the inimical attitude of the people of Naya Siloda
through which village they had to pass and there was no
question of Juna Siloda people being taken unawares while
passing through Naya Siloda, according to the High Court,
there was no question of any right of private defence being
available to the people of Juna Siloda. The High Court
further observed that the right of private defence, if at
all available, must be claimable, by all members of the
group and there was no question of considering the case of
each individual accused for the purpose of determining this
right apart from the entire assembly. After so holding the
High Court considered the case of each member of the group
from Juna Siloda for determining whether he was present at
the spot as a member of the assembly. Holding them all to
be present their appeal was dismissed.
The High Court similarly dealt with the appeal presented by
Naya Siloda group. In that Court’s view the mere failure of
the accused from Juna Siloda to satisfactorily prove their
right of self-defence could not serve to clothe the accused
from Naya Siloda with such a right. The two cases having
been tried separately each case, according to the High
Court, had to be decided on the facts established on its
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8
record with the result that in the appeal of the Naya Siloda
group they had independently to prove that Juna Siloda
people were the aggressors and the Naya Siloda group were,
therefore, entitled to claim the right of private defence.
After considering the evidence in the case the High Court
came to the conclusion that the Naya Siloda
157
people had gathered under the Kabit tree on the road by
which the Juna Siloda people were returning from Sanwer to
their village after the prayers. The Naya Siloda people had
not gone to Sanwer with anus but had returned to their
village after Id prayers a little earlier and after
collecting the arms had gathered under the Kabit tree
waiting for the Juna Siloda people to come. In these
circumstances the Naya Siloda people were also held
disentitled to claim any right of private defence.
According to the High Court if Naya Siloda people had merely
assembled inside their village for self-defence apprehending
aggression on the part of Juna Siloda people then they might
have been able to put forward the plea of self-defence. But
having gone out of their village fully armed and gathered on
the road under the Kabit tree which was the only route for
the carts of Juna Siloda people when returning to their
village from the Mosque the plea of self-defence could by no
means be open to them. The Naya Siloda people, according to
the High Court, on the circumstances of the case could also
have approached the police with a complaint that they were
apprehending assault from the Juna Siloda people who were
armed with dangerous weapons and were to pass through their
village on the return journey from the Mosque. Negativing,
the claim to the right of private defence on the part of the
Naya Siloda people their appeal was also dismissed by the
High Court. In the concluding portion of its judgment the
High Court observed that the trial court had erroneously
acquitted some members of the unlawful assemblies for
offences under s. 302, I.P.C. because by virtue of s. 149,
I.P.C. they were all liable to be committed pursuant to the
common object of the assembly. But there being no appeal
against acquittal the High Court was content merely with
this observation.
In this Court Shri R. L. Kohli addressed elaborate arguments
on behalf of the appellants from Juna Siloda (Crl. A. No.
204 of 1967). According to the counsel right of private
defence had been fully established on the record so far as
his clients are concerned and the courts below have misread
the evidence while considering the plea of private defence.
Great emphasis was laid on the fact that Majid and Yasin out
of the appellants’ group had been killed and it was
thereafter that the appellants used their weapons in
exercise of their right of private defence. The counsel
drew our attention to the following passage from the
judgment of the High Court in which the right of private
defence on the part of the Naya Siloda people was negatived:
"There is also the story of Rasulkhan and
Najimkhan going to pacify them. Whether this
is true or not is not very material for this
case. They got down,
158
they got injured in the fight that took place.
Therefore there cannot be any question of
self-defence for the Naya Siloda people in
general when we find that they had gathered
under the Kabit tree on the road by which the
carts were going. These people did not go to
Sanwer with arms. They came to Naya Siloda
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8
earlier, collected the arms and waited for
Juna Siloda people to. come. Under these
circumstances Naya Siloda people cannot claim
any right of private defence though the Juna
Siloda people may or may not be having a right
of self-defence."
The counsel laid emphasis on the fact that, according to the
High Court, the Juna Siloda people had not gone to Sanwer
with arms whereas the Naya Siloda people had returned
earlier to their own village, and after collecting the arms
lay in wait for the Juna Siloda people to come: thereafter
when the two unarmed men from the, group of Juna Siloda
people got down from their cart they were injured. On this
premise, according to the counsel, the Juna Siloda people
were clearly entitled to protect themselves against the
aggressive assault by the Naya Siloda people. Shri Kohli
drew our attention to the evidence of Kallu Khan (P.W. 16)
of Naya Siloda who was himself injured during the
occurrence. According to him Latif Khan was armed with a
gun and had fired three or four shots and it was thereafter
that he was surrounded by the people from Juna Siloda and
beaten with dharia and farsi. According to counsel Latif
Khan was clearly assaulted after he had used his gun against
the inhabitants of Juna Siloda and therefore they were
entitled to plead the right of private defence. Reference
was also made to the evidence of Munshi Khan of Naya Siloda
(P.W. 18). According to him a woman handed over a gun to
Latif Khan which he used against the people of Juna Siloda.
Latif Khan, according to this witness, was surrounded when
he had exhausted his ammunition. This according to the
counsel, also supports the plea of private defence on the
part of the inhabitants of Juna Siloda. The counsel,
however, seems to us to have ignored that part of the
statement of this witness where he says that the people of
Juna Siloda were already assaulting the party of the witness
with lathis.
Shri Kohli then submitted that there is no evidence on the
record justifying the observation of the High Court that the
people of Juna Siloda had sent back their children earlier.
He added that the evidence of some other prosecution
witnesses, according to whom the Juna Siloda people had
passed through Naya Siloda on their way to the Mosque in the
morning with various dangerous weapons, is wholly incredible
and untrustworthy.
159
The learned counsel for the State conceded that in this case
there was no evidence that the children had been sent away
earlier by the people of Juna Siloda. In fact evidence to
this effect was only led in the counter-case which
admittedly could not be used in the present case. He
referred us to the judgment of the High Court where it is
stated that the Juna Siloda people knew that the only route
was through Naya Siloda and they should have, therefore,
avoided the cart track. The High Court, after so observing,
proceeded:
"It was not incumbent for them to come by
carts only. It is not that Sanwer was at a
long distance so that they could not go
without a cart. We are not considering the
case of a person ignorant of the situation.
We are considering the facts with the back-
ground of mutual hostile relationship. It was
such that the parties could not live in the
village and the authorities were forced to
find out a different place to live. It is
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8
true that there is evidence that there was a
tree over the Nala on the other route so that
carts might not go, but if one did not want to
fight which was inevitable in that route one
would have avoided going through Naya Siloda.
We are not saying that the law teaches us
cowardice but law does not encourage
bravado.
The right of self-defence only arises if the
apprehension is unexpected and one is taken
unawares. If one enters into an inevitable
danger with the fullest intimation before hand
and goes there armed to fight out, the right
cannot be claimed. Under these circumstances
we do not think that Juna Siloda people had
any right of private defence."
We find it difficult to agree with this approach of the High
Court. The people of Juna Siloda had a right to go for
prayer to Sanwer on the day of Id and merely because the
only route passed through Naya Siloda the people of which
were inimical towards them, it cannot deprive them of their
right to use that route for going to Sanwer. If while
exercising that right they were attached without
justification, the right of private defence cannot be denied
to them. And then the Juna Siloda people having gone to
Sanwer for Id prayers in their carts, they had to come back
with their carts, which they could not be expected to leave
behind, merely because there was an apprehension in their
mind that on their way back the Naya Siloda people were
likely to confront them. The only cart-route being the one
that passed through Naya Siloda they had no alternative
except to use that route. When in the lawful and bona fide
exercise of the right to go back to their village in their
carts by that route
160
they were confronted by the Naya Siloda people who were
armed with dangerous weapons and were waiting for them, they
were fully justified in using force to defend themselves
against unlawful aggression. When enacting ‘s. 96 to 106 of
Indian Penal Code, excepting from its penal provisions,
certain classes of acts, done in good faith for the purpose
of repelling unlawful aggression, the legislature clearly
intended to arouse and encourage the manly spirit of self-
defence amongst the citizens, when faced with grave danger.
The law does not require a law-abiding citizen to behave
like a coward when confronted with an imminent unlawful
aggression. As repeatedly observed by this Court there is
nothing more degrading to the human spirit than to run away
in face of danger: G. V. S. Subramanyam v. State of Andhra
Pradesh(1). The right of private defence is thus designed
to serve a social purpose and deserves to be fostered within
the prescribed limits. Not only is the approach of the High
Court erroneous in law but the High Court also wrongly held
without any evidence that the Juna Siloda people had earlier
sent back their children by another route for the purpose of
having a confrontation with the Naya Siloda people. We,
however, must not be understood to endorse the view of the
High Court that the fact of Juna Siloda people having
actually sent back their children would, if true, have
deprived them of the right of private defence while lawfully
going back to their home by the route through Naya Siloda.
However, once the above approach of the High Court is held
to be erroneous and it is also part of the Juna Siloda
people to arm themselves for confrontation, the only
permissible conclusion open on the record is that the Juna
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8
Siloda people had used force only in justifiably exercising
their right of private defence. It may be recalled that the
Naya Siloda people had returned from the prayers early and
gone out of their village after equipping themselves with
arms in order to wait for confrontating the Juna Siloda
people on their way back home from their Id prayers. It was
nobody’s case before us that if there was the right of
private defence, it was exceeded by the Juna Siloda people.
We have, therefore, no hesitation in allowing this appeal
and acquitting the appellants which we hereby do.
On the view taken by us in Crl. A. No. 204 of 1967, the
other appeal (Crl. A. 83 of 1968) presents no difficulty.
Having known the origin of the conflict about which there is
no contrary finding in Crl. A. No. 83 of 1968 it cannot but
be held that the people of Naya Siloda were the aggressors
and they had no right of private defence against the people
of Juna Siloda. Indeed, the learned counsel for the
appellant in Crl. A. No. 83
(1) A.I.R. 1970 S.C. 1079 at 1087.
161
of 1968, Shri Ganpat Rai, did not put forward any serious or
sustained argument that the appellants from Naya Siloda were
compelled to use force to defend themselves against unlawful
aggression. Naturally there was no argument in regard to
the guilt of any individual appellant nor was any argument
addressed on the question of sentence. Criminal Appeal No.
83 of 1968 must, therefore, fail and the same is hereby
dismissed.
Cr. A. No. 204 of 1967 allowed. S.N.
Cr. A. No. 83 of 1968 dismissed.
S.N.
162