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Judgment
Janarthanam, J.—Accused 1, aggrieved by his conviction and sentence in S.C. No. 140 of 1985 on the file of Court of Session,
Chengalpattu, has come forward with this appeal.
The succinct facts are:
(a) Balu (since deceased) was a resident of Thiruvotriyur. His parents are Veeraraghavan and Krishnaveni. Apart from P.W.1, he has two other
brothers, by name Purushothaman and Dhanasekaran. All the members, it is said, were residing at Door No.44-A, North Mada Street. The family
of the deceased, it is said, was engaged in milk-vending business. For that purpose, it is said, the family was having certain milching cows. The
deceased, apart from looking after the milk-vending business, was also stated to be profitably employed in Carborandum Universal Company.
P.W.2, it is said, had been looking after the cattle, besides milching milk from them. He was also stated to be in charge of the collection of the dues
from those persons to whom milk had been vended.
(b) Accused 1, it is said, had been residing in the same street, where the members of the family of the deceased live. Accused 2 to 5 were stated
to be his friends. There is also a house bearing door No. 53 in the same street. The said house originally belonged to one Vajravelu Mudaliar, who
is none-else than the brother of P.W.5. Accused 1''s father Muthu, it is said, had been residing in the said house for well over forty years. The said
Vajravelu Mudaliar was stated to have died in the year 1951. Before his death, it is said, a will had been executed by him in favour of his brother,
P.W.5, bequeathing the said house and other properties. Accused 1''s father Muthu also died some five years prior to 18-7-1984, the date of
occurrence. Even subsequent to the death of Muthu, accused 1 had been residing in the said house and also had been conducting in a portion of
the house, a factory on a small scale manufacturing soda. Another portion of the said house was also stated to have been let out to P.W.3 for the
purpose of running a tea stall. P.W.3 vacated from the said portion and had his tea shop located opposite to the said house itself. P.W.5 had taken
steps to recover possession of the said property from accused 1, in the sense of issuance of a notice. Accused 1 did not at all vacate the house in
due deference to the notice issued to him. He also defied in making payment of rent. P.W.5 consequently, it is said, sold the house on 8-11-1983
in favour of the deceased Balu, by means of a registered sale deed for a valuable consideration of Rs.40,000/-. While executing the sale deed, it is
said, P.W.5 did not hand over vacant possession of the said property to the deceased, expressing his inability to do so and the deceased alone had
to take steps for getting vacant possession. P.W.1 would however state that subsequent to the sale deed in favour of the deceased, the milching
cows belonging to the family have been tethered in the newly-acquired property by the family.
(c) On 18-7-1984 at about 1 P.M. P.W.1, P.W.2 and the deceased were available in door No. 53 doing some work connected with the tending
of the cattle. At that time, accused 1 to 5, all of a sudden, came there and accused 5 was stated to have proclaimed, ''Yeh! It was Balu! Finish him
off!"" Immediately thereafter, accused 1, with the aid of a button knife, M.O.1, which he was having in his hand, was stated to have inflicted a stab
on the left chest of the deceased. Accused 2, on his part, with the aid of a bitchuva knife, M.O.2, was stated to have inflicted a cut on the back
portion of the head, above the neck of the deceased. There was bleeding from the seat of the injurise. P.W.1 was stated to have immediately gone
to the rescue of the deceased, when the deceased was in the process of falling on the ground, after receipt of the injuries. Accused 1, at that time,
was stated to have inflicted a stab on his right flank, with M.O.1. P.W.2 was stated to have raised a hue and cry. P.W.3, on hearing the shouts,
also came to the scene and had the fortuitous opportunity of witnessing the occurrence. P.W.4, the paternal uncle of the deceased, who happened
to come that way, while returning from the temple, hearing the shouts, had been there and he was stated to have been beaten by accused 3 by
means of an iron pipe, M.O.3 on his left arm. A crowd also gathered and accused 5 was stated to have pelted stones, in an obvious bid to prevent
the surging crowd. Thereafter, all of them, it is said, ran away from the scene with the weapons of offences.
(d) One Ravi, it is said, brought a taxi and put P.W.1, the victim deceased and his mother and took them to Thiruvotriyur Police Station. P.W.9
was the then Sub-Inspector of Police in charge of the said Police Station. P.W. 1 gave Exhibit P.1 complaint to P.W.9, who, in turn, registereed
the same in Crime No. 550/84 for offences under sections 147,148, 324 and 307 IPC. Exhibit P.11 is the first information report. He sent Exhibits
P.1 and P.11 to the court, apart from sending copies of the same to the Inspector of Police. He sent P.W.1 and the victim-deceased with a memo
to Stanley Hospital, Madras for the purpose of remand through the Constable, P.W.7, PC 315. One Nainar Mohammed, then the Inspector of
Police took up further investigation of the case. P.W.9 and Nainar Mohammed immediately left to the scene of occurrence. After inspecting the
scene at about 2-10 PM, an observation mahazar, Exhibit it P.17 had been prepared. Exhibit P.18 is the rough sketch of the scene.
(e) P.W.11 was the then Assistant Surgeon and Casualty Medical Officer, Stanley Hospital, Madras. At 1-45 PM, on 18-7-1984, he examined
the victim - deceased and found him to be dead. He, however, noted the injuries found on the person of the deceased and sent the body to the
mortuary. Exhibit P.31 is the Accident Register extract. He also examined P.W.1 and treated him for the injuries. Exhibit P.32 is the Accident
Register extract. He would opine that the injuries he found on the person of P.W.1 could have been caused due to cutting with M.O.1 at the time
and manner alleged. He sent the death intimation Exhibit P.16 through the Constable P.W.7.
(f) When P.W.9 and Nainar Mohammed were available in the scene, P.W.7 handed over the death intimation, Exhibit P.16 to them and
immediately, the case had been altered into one under S. 302, IPC and express reports had been prepared and sent to the concerned officials.
Exhibit P.19 is the copy of the express FIR sent to Court. At 2-45 PM, bloodstained earth, M.O.8 and sample earth, M.O.9 had been seized
under Exhibit P.20 mahazar. At 3 PM, bricks, M.O.10 series and blackstones, M.O.11 series had been seized under Exhibit P.21 mahazar.
P.W.2, who stated to have been present in the scene had also been examined. Exhibits P.17, P.20 and P.21 have been attested by witnesses
Ramanan and Venkatesan.
(g) Both of them went to Stanley Hospital. Between 4-30 and 6-30 PM, he held inquest over the body of the deceased in the mortuary in the
presence of the panchayatdars. Exhibit P.12 is the inquest report. During inquest, P.Ws.2, 3 and 4 and some others had been examined. While
holding inquest, P.W.4 emerged there with injuries on his person. He was sent with a memo for treatment of his injuries. After the inquest was
over, the dead body of the deceased was handed over to the Constable, P.W.7, along with Exhibit P.13 requisition for the purpose of autopsy.
(h) P.W.11 at 5-20 PM examined P.W.4 and treated him for the injuries. Exhibit P.33 is the Accident Register extract. He would opine that the
injuries he found on the person of P.W.4 could have been caused by an assault with M.O.3. P.W.1 had been examined by P.W.9 and Nainar
Mohammed at 7 PM and from him bloodstained shirt, M.O.7 had been seized under Exhibit P.22 mahazar. Exhibit P.34 is the written opinion
respecting the nature of the injuries sustained by P.W.1. The accused were searched and they were not available.
(i) P.W.7, to whom the body had been handed over, could not hand over the same for the purpose of autopsy, since it was night time and he kept
the body in the mortuary that night and handed over the same the next day for the purpose of autopsy.
(j) P.W.8 was the then Professor of Forensic Medicine, Stanley Medical College, Madras. On receipt of Exhibit P.13 requisition, she commenced
autopsy over the body of the deceased at 10-45 AM on 19-7-1984. Exhibit P.15 is the post-mortem certificate. She would opine that injury No.
1 with its corresponding internal injury could have been caused due to a stab with a weapon like M.O.1 while injury No. 2 could have been
caused by a weapon like M.O.2. She would further opine that the said external injury No. 1 with its corresponding internal injury is necessarily
fatal and after sustaining this injury, the deceased would have survived for about twenty minutes. She sent the Viscera for chemicals examination
and Exhibit P.14 is the report of the chemical examiner.
(k) On 19-7-1984, the clothes, M.Os.4 to 6, found on the body of the deceased had been seized under Exhibit P.23 mahazar. Exhibits P.22 and
P.23 have been utilised by Ravi and Natarajan. Due requisitions under Exhibits P.2, P.6 and P.7 had been sent to Court for the purpose of sending
the incriminating material objects to the Chemical Examiner for the purpose of examination.
(l) On 20-7-1984 at 7 PM, accused 1 and 5 had been arrested at Kasimedu cremation ground. Accused 1 was stated to have given a voluntary
confession statement under S. 27 of the Evidence Act. Exhibits P.24 and P.25 are the admissible portions of the confession statement. The shirt
M.O.13 was stated to have been worn by accused 1 at that time and the same was stained with blood. It was seized under Exhibit P.26 mahazar.
Pursuant to the confession, knife M.O.1, iron pipe M.O.3 and reaper log M.O.12 had been recovered under Exhibit P.27 mahazar. At about 8-
30 PM, the seized properties and accused 1 and 5 were taken to the police station and on the next day, they were sent to Court for the purpose of
remand. All these mahazars were stated to have been attested by Kuttryappan and Jayaraman.
(m) Due efforts had been taken to apprehend the other accused. On 23-7-1984 at 4 AM, accused 2 had been arrested at Ernakulam Lift Gate.
On interrogation, he was stated to have given a confession statement voluntarily. Exhibits P.28 and P.29 are the admissible portions of the said
statement. Pursuant to the confession so made, M.O.2 had been seized under Exhibit P.30 mahazar attested by one Sathya Natarajan. They along
with accused 2 and the seized property returned to the police station. Accused 2 had been sent to Court for remand on the same day.
(n) On 25-7-2984 at 5-30 AM, accused 3 and 4 were arrested near Thandu Mariyappan Kovil at Tollgate and they were sent to Court for
remand on that date itself. The entire investigation had been done by Nainar Mohammed assisted by P.W.9. Before commencement of the trial, it
is said, Nainar Mohammed died and consequently, P.W.9 spoke to the aspect of the investigation done by him.
(o) P.W.6 is the Head clerk attached to the Judicial Second Class Magistrate''s Court, Thiruvotriyur. On receipt of requisition, Exhibits P.2, P.6
and P.7, the incriminating material objects had been separately packed and sent to the Chemical Examiner as per the directions of the Magistrate.
Exhibits P.3 and P.8 are the office copies of the letters. Exhibits P.4, P.9 and P.5, P.10 are the reports of the Chemical Examiner and the
Serologist.
(p) On 27-7-1984, further investigation had been taken up in this case P.W.10, the Inspector of Police attached to Thiruvotriyur Police Station.
He supervised the investigation earlier made by Nainar Mohammed. He examined P.Ws.8 and P.W.11 after completing the formalities of the
investigation, he laid the final report under S. 173(2) Crl.P.C. on 29-3-1985 before the Judicial Second Class Magistrate, Thiruvotriyur against
accused 1 to 5 for alleged offences under Ss. 147, 148, 449, 324, 307 and 302 read with Sections 149 and 34 IPC.
Learned Sessions Judge, upon committal, framed the following charges:
Firstly, under S. 147 IPC against accused 4 and 5
Secondly, under S. 148 IPC against accused 1 to 3
Thirdly, under S. 449 IPC against accused 1 to 5;
Fourthly, under S. 302 read with S. 34 IPC against accused land 2;
Fifthly, under S. 302 read with S. 149 IPC against accused 3 to 5;
Sixthly, under S. 307 IPC against accused 1;
Seventhly under S. 307 read with S. 149 IPC against accused 2 to 5; and
Eighthly, under S. 324 IPC against accused 3.
All the accused, when questioned as respects the charges framed against them, denied the same and claimed to be tried.
The prosecution, in a bid to prove the charges framed against the accused, examined P.Ws.1 to 11, filed Exhibits P.1 to P.34 and marked
M.Os.1 to 13.
The accused when examined under S. 313 Crl.P.C. as respects the incriminating circumstances appearing in evidence against them, denied the
same. Accused 1 would specifically plead that door No. 53 belonged to him absolutely and in respect of the said house, he had filed a civil suit and
obtained an order of injunction. At the time of the occurrence, he was caught hold of by the deceased and P.W.1 and two others beat him and he
wriggled out of the clutches, went straight to the police station, made a report and the police kept him in the police station for about four to five
days and subsequently sent him to the hospital for treatment of his injuries and thereafter sent him to Court for remand. They did not choose to
examine any defence witness on their side.
However, they marked Exhibits D.1 to D.6 in a bid rather to make it appear that on the date when the occurrence took place, door No. 53 was
in factual and actual possession of accused 1''s family and the aggressors were the deceased party.
Learned Sessions Judge, on perusal of the materials placed before him and after hearing the arguments of learned public prosecutor as well as
learned Counsel for the defence, found accused 1 along guilty under Ss. 302 and 324 IPC, convicted him thereunder and sentenced him to
imprisonment for life for the former offence and to rigorous imprisonment for two years for the latter offence, with a direction for the sentences to
run concurrently. He could however find the rest of the accused, namely, accused 2 to 5 not guilty of any of the offences with which they stood
charged and acquitted them thereunder. Hence the appeal by the aggrieved accused 1 alone.
Learned Counsel for the appellant-accused 1 would strenously contend that the investigation in the case is rather perfunct, lopsided and not
impartial, in the sense of not making due investigation as respects the actual or factual possession of door No. 53, North Mada Street on the date
when the occurrence took place and not even placing before Court the medical testimony as respects the injuries stated to have been sustained by
accused 1 in the occurrence; that if due and impartial investigation had been made, there was likelihood of the Investigating Agency coming to a
conclusion that the deceased - party was the aggressor and the accused party, in the circumstances of the case, could have exercised the right of
private defence of person and property, in the sense of using force required to turn away the aggressors, who tried to take possession on the day
of the occurrence; that though the defence had not taken any specific stand of the right of private defence of person or property, yet it cannot be
stated that the defence had not laid the foundation for the exercise of such right by the trend of questions hurled during the course of cross-
examination, in the facts and circumstances of the case; that the entirely of the evidence available in the case, if scanned and shifted in the broad
spectrum analysis, the right of private defence of person or property would get probabilised by the plethosa of circumstances available in this case,
inasmuch has the burden cast upon the defence under S. 105 if the Evidence Act is not so muchonerous as that cast on the prosecution, in the
sense of the defence burden getting discharged by bringing into existence on record the prepondernace of probabilities therefor and that in such
circumstances, there is no other go for this Court but come to such a conclusion by acquitting the appellant-accused 1 in respect of any offence
whatever.
Learned Additional Public Prosecutor would however strive his level best in repelling such a submission.
We may now make an endeavour in testing the veracity of the submission of either Counsel, in the facts and circumstances of the case.
There is no pale of controversy as respects door No. 53 situate in North Mada Street, Thiruvotriyur belonging absolutely to one Vajravelu
Mudaliar, who is none-else than the brother of P.W.5. Yet another factor, about which there is no dispute, is as to his having expired in the year
19S1 issueless. It is also an admitted fact that accused 1''s father Muthu had been residing in the said property for well over forty years. The said
Muthu was stated to have died some five years prior to the occurrence and thereafter, accused 1 had been in possession of the same. P.W.5,
despite best of efforts to evict him from the said premises, was not successful. P.W.5, perhaps frustrated in taking possession of the property from
accused 1, decided to dispose of the same in favour of the deceased on 8-11-1983. He, in fact, did not hand over possession on the date of
execution of the sale deed. The sordid fact is that he left it to the deceased the means known to him for taking possession of the said property. The
case of the prosecution however, as revealed by the testimony of P.W.1 is that the deceased took possession of the said property after the
execution of the sale deed in his favour and he started tethering milching cows belonging to the family in the said property. It is at this juncture, we
have to ponder over and decide on the face of the materials available on record as to whether the deceased could have taken possession of the
said property immediately after the execution of the sale deed in his favour.
It is worthwhile to note here that accused 1 gave Exhibit D.3 petition to the Inspector of Police, Thiruvotriyur Police Station on 27.1.1984 as
to the Herculean efforts made by the deceased in somehow or other dispossessing accused 1 from the said property by means, foul or otherwise.
No enquiry of any sort had been made on such a petition. It is distressing to not that this sort of a petition, which had not been given due attention
and consideration, was not even taken into consideration at the time of making an investigation in this case. The Sub-Inspector of Police, P.W.9
would pose all sorts of inocence as to the preference of Exhibit D3 petition by accused 1, in the sense of stating that he was not aware of the
preference of any such petition. He would however admit the preference of the same by accused 1 to the police station, when his attention had
been drawn to such a petition. This clearly shows the assiduous attempt made by him to suppress such material emerging to the surface. Perhaps
he could have felt that such a material is quite against the case of the prosecution.
The matter did not stop there. It is not as if the investigation agency was not aware of the existence of the civil dispute between the families of
the deceased and accused 1, as respects the said property. But none-the-less, the investigating agency did not care to bring on record those
materials. Probably, the reason is obvious. As stated earlier, if such materials were probed and brought into existence on record, they were likely
to go against the interest of the case of the prosecution. Despite secretion of such material, it is as if the investigating agency succeeded in such an
attempt. Unfortunately for them, the vigilant defence brought on record those materials in the shape of Exhibits D.1 and D.2.
Exhibit D.1 is the plaint copy in O.S. No. 18 of 1984 on the file of the Subordinate Judge, Trivellore. The suit had been filed by accused 1 and
others for the relief of declaration and injunction impleading P.W.5 and the deceased as defendants 1 and 2 by specifically contending that the said
property absolutely belonged to them and that they had been in possession and enjoyment of the property for well over certain decades and the
defendants had no manner of any right, title or interest in the said property. Exhibit D.2 is the petition and affidavit filed in I.A. No. 154 of 1984
and the orders passed thereon by the Court. From a perusal of Exhibit D.2, it is found that the suit along with the said IA had been filed and interim
orders had been obtained on 5-4-1984. The interim order of injunction granted on that date had been extended, time and again, and it had been
continued beyond 18-7-1984, the date on which the occurrence took place. What is further revealed is that the interim order had been served by
affixture on P.W.5, besides the actual service on the deceased. The deceased also had entered appearance through a Counsel of his choice.
Pertinent it is to note that subsequent to the resortment to taking of civil action and obtaining of orders of interim injunction restraining P.W.5,
the deceased and his men from disturbing his possession of the properties situate in door No. 53, North Mada Street, accused 1 had preferred a
complaint to the Sub-Inspector of Police, Thiruvotriyur on 14-5-1984 bringing to the knowledge of the police as to the factum of the initiation of
the civil action and consequent obtaining of the interim injunction, besides stating that despite such actions, the deceased and his men were bent
upon taking possession of the said property by force and therefore, he should be accorded necessary protection therefor by taking action against
them. When questions were hurled on this aspect of the matter to P.W.9, during the course of cross-examination, he would feign all sorts of
ignorance and when he was confronted with Exhibit D.5, receipt for preference of the complaint under Exhibit D.4, he had no other go except to
concede the preference of such a complaint to the police.
It is worthwhile to note that particulars of the suit number, the form before which the suit had been filed, the I.A. number and the order
obtained thereon, had been stated in the petition under Exhibit D.4. Despite all these things, the investigating agency kept their eyes closed in not
making any investigation towards that direction. This shows that the investigating agency was quite aware that if those materials were probed and
brought on record, it would be detrimental to the interest of the case they wanted to project before Court. This sort of a view entertained by them
is also discernible from the factum of showing bloodstains not inside the house in door No. 53 where the occurrence was said to have taken place;
but showing in front of the house on the road. The recovery of the bloodstains in front of the house on the road had also been shown in the
observation mahazar under Exhibit P.17. From this it is quite evident that during the enquiry stage of investigation, they could have been hovering
over the idea that if the bloodstains were recovered from inside the said house and the possession of the house was to be proved by the defence in
their favour, there was every likelihood of dismal failure of the case of the prosecution on that score alone and perhaps due to such an obsession in
their mind, they could have shown the recovery of the bloodstains in front of the house. But alas the initial effort taken in that regard could not be
pursued through and the truth somehow or other had come out, in the sense of the prosecution witnesses P.Ws.1 to 4 categorically asserting that
the occurrence took place only inside the said house. The moment the stabbing of the deceased and cutting of P.W.1 took place, it is the
consistent version of those witnesses that there was profuse bleeding. In such a situation, there could have been the presence of the bloodstains
inside the house. Admittedly, no bloodstains from inside the house had been shown to have been recovered. As we have already indicated, this is
not without a purpose.
This apart, it is the case of the defence that accused 1 was attacked by the deceased and P.W.1 and in such an attack, he sustained certain
injuries on his person and immediately thereafter he somehow or other escaped from their clutches and straight away went to the police station for
giving a report. It is his further case that he was detained there for about a few days and later only he had been sent to the hospital for treatment,
and subsequently remanded to judicial custody. The investigating agency, for obvious reasons, did not at all cite the doctor who happened to treat
the accused for the injuries stated to have been sustained by him in the occurrence, as a witness. Nor was there any step taken to explain the
injuries on his person by marking the extract of the Accident Register. Sensing the mood of the defence, the astute investigating agency namely,
P.W.9 would casually state during the course of his examination that since accused 1 was found to be having some injuries on his leg, he had
despatched him to the hospital for treatment before ever he was remanded to judicial custody. The defence, in its determined bid, to point out that
all is not well with the Investigating Agency did in fact produce the Accident Register copy issued to accused 1 and mark the same through
P.W.10 as Exhibit D.6. From Exhibit D.6, it is seen that accused 1 had been sent to the Radiological Department for taking of x-rays and x-ray in
fact had been taken and since x-ray reports were not made available, he was not in a position to offer his opinion as to the nature of the injuries
sustained by accused 1. It is not as if the duty is cast upon accused 1 to explain the injuries found on his person during the course of the
occurrence. It is on the part of the prosecution to prove clinchingly in what manner the injuries found on the person of the accused had been
caused. In the situation as is now available in the case on hand, we are of opinion that since the prosecution had taken all sorts of assiduous care in
suppressing relevant materials favourable to the defence, we are not far wrong in coming to the conclusion, by invoking the presumption u/s 114(g)
of the Evidence Act, that the medical evidence available as respects the injuries caused to accused 1 if produced, it is likely that it will be
detrimental to the interest of the prosecution and accused 1, such a situation, could have sustained a grievous injury 16. The details as contained in
Exhibits D.1 to D.6 had been put to the prosecution witnesses in some form or other by hurling all questions put during the course of their cross-
examination by the defence and in that process, they were successful in bringing to the surface that the genesis, origin and nature of the occurrence
could not have happened in the manner as projected by the prosecution; but could have happened in a different way, in the sense of the deceased,
P.W.1 and their men having taken the law into their own hands to wrest possession from accused 1 and in such a process, the occurrence could
have happened. If the deceased, P.W.1 and their men were the aggressors in wresting possession from accused 1, besides putting him in the
imminence of threat of danger to his life or otherwise to causing some grievous hurt, it does not mean that accused 1 and his men had to rush to the
authorities for seeking redress and it is very well within their right of private defence of person and property to resort to inflict violence directed
towards the aggressors-the deceased party and they cannot be expected to weigh the precise force needed to repel the danger.
We may usefully refer to certain precedents emerging from the apex Court of this country, as respects the exercise of right of private defence
of person and/or property and burden of proof therefor. In the case in Munshi Ram v. Delhi Administration AIR 1968 Supreme Court 702, while
dealing with the discharge of the burden cast on the accused, the apex Court expressed in paragraph 5 thus:
It is true that the appellants in their statement u/s 342, Cr.P.C. had not taken the plea of private defence, but necessary basis for that pica had been
laid in the cross-examination of the prosecution witnesses as well as by adducing defence evidence. It is well settled that even if an accused does
not plead self-defence, it is open to the court to consider such a plea if the same arises from the material on record - see In Re: Jogali Bhaigo
Naiks and Another, . The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of
probabilities in favour of that plea on the basis of the material on record.
In Mohd. Ramzani Vs. State of Delhi, , Their Lorships of the Supreme Court fn paragraph 19 (at page 1345) said thus:
It is trite that the onus which rests on an accused person u/s 10S, Evidence Act, to establish his plea of private defence is not as onerous as the
unshifting burden which lies on the prosecution to establish every ingredient of the offence with which the accused is charged beyond reasonable
doubt. It is further well established that a person faced with imminent peril of life and limb of himself or another, is not expected to weigh in ''golden
scales'' the precise force needed to repel the danger. Even if he at the heat of the moment carries his defence a little further then what would be
necessary ""when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it.
While dealing with the question as to when the exercise of the right of private defence of person and property can go to the extent of causing
death, in Puran Singh v. State of Punjab 1975 Crl.L.J. 1479 , the Supreme Court said in paragraphs 17 and 18 thus:
It is true that the right of private defence of person or property is to be exercised under the following limitations:
i) that if there is sufficient time for recourse to the public authorities the right is not available;
ii) that more harm than necessary should not be caused;
iii) that there must be a reasonable apprehension of death or of grievous hurt to the person or damage to the property concerned....
It is not the law that a person when called upon to face an assault must run away to the police station and not protect himself or when his property
has been the subject-matter of trespass and mischief he should allow the aggressor to take possession of the property while he should run to the
public authorities. Where there is an element of invasion or aggression on the property by a person who has no right to possession, then there is
obviously no room to have recourse to the public authorities and the accused has the undoubted right to resist the attack and use even force if
necessary. The right of private defence of property or person, where there is real apprehension that the aggressor might cause death or grievous
hurt to the victim, could extend to the causing of death also, and it is not necessary that death or grievous hurt should actually be caused before the
right could be exercised. A mere reasonable apprehension is enough to put the right of private defence into operation. We are fortified in this view
by the decision of this Court in Jai Dev Vs. The State of Punjab, where this Court observed as follows:
This, however, does not mean that a person suddenly called upon to face an assault must run away and thus protect himself. He is entitled to resist
the attack and defend himself. The same is the position if he has to ""meet an attack on his property"". In other words, where an individual citizen or
his property is faced with a danger and immediate aid from the State machinery is not readily available, the individual citizen is entitled to protect
himself and his property....
There can be no doubt that in judging the conduct of a person who proves that he had a right of private defence, allowance as necessarily to be
made for his feelings at the relevant time. He is faced with an assault which causes a reasonable apprehension of death or grievous hurt and that
inevitably creates in his mind some excitement and confusion. At such a moment, the uppermost feeling in his mind would be to ward off the danger
and to save himself or his property, and so, he would naturally be anxious to strike a decisive blow in exercise of his right.
The decisions, as referred to above, we are of the view, are on all fours applicable to the case on hand.
For the reasons as above, we are of the view that the act of the appellant-accused 1 in causing injuries on the person of the deceased as well
as P.W.1 cannot be stated to be one not done, in the exercise of right of private defence of person and property, in the facts and circumstances of
the case. In this view of the matter, the conviction and sentence on the appellant-accused 1, as had been done by the Court below for various
offences, are not sustainable.
In the result, the appeal allowed; the conviction and sentence imposed by the Court below on the appellant-accused 1 for various offences are
set aside and he is acquitted. The bail bond, if any, executed by him shall stand cancelled.