Mahabir Choudhary v. State of Bihar [1996 SC]

Thirteen persons were arraigned in the trial court to face charges for offences including Section 302 read with Section 149 of IPC, out of which the Sessions Court convicted only four of them under Section 304 Part I of IPC. Others were acquitted. The convicted persons were sentenced to rigorous imprisonment for 5 years each. They filed an appeal before the Patna High Court. The State of Bihar filed another appeal challenging acquittal of 9 accused as well as the order exonerating the convicted persons of the offence under Section 302 IPC. At the appellate stage there was reversal of fortune for all the arraigned persons as the High Court found all of them guilty under Section 302 read with Section 149 IPC.

The incident which led to the prosecution of all the 13 appellants happened during the morning hours on 15-10-1974, in which three persons died. All the deceased hailed from a village called Malpura which is situated a little north of Kusi village. A water stream starting from another village situated south of Kusi village flowed northwards reaching up to Kusi. Appellants are inhabitants of Kusivillage. As there was acute drought condition, people of Malpura were in need of water.

Prosecution case, in short, is thus: The three deceased visited Kusi village on the eve of the occurrence and cut open a bund which blocked the water flowing further north. This act of the deceased was questioned by some of the appellants, but their protestations were not heeded to by the deceased. On the morning of 15-10-1974, situation further deteriorated with exchange of words between the two factions when those hailing from Malpura forcefully resisted the attempt of the appellants to restore the bund. All the appellants gathered up with guns, lathis, etc. The four appellants who were convicted by the trial court used guns to fire down one or the other of the three deceased and consequently the deceased died of gunshot injuries. The remaining persons who came from Malpura village retreated and fled from the scene.

The learned Sessions Judge found that the prosecution succeeded in establishing that the four convicted persons fired guns at the deceased. However, the learned Sessions Judge took the view that the appellants had right of private defence of property as the deceased committed mischief by cutting open the bund to block the water flow. But the trial court further found that the four convicted persons who used firearms had exceeded their right of private defence and hence they were convicted only of the offence under Section 304 Part I.

The High Court, in reversal of the above findings, concluded that all the 13 accused had formed themselves into an unlawful assembly with the common object of murdering the three deceased and that none had the right of private defence at the relevant time.

We have no reason to disturb the finding that four appellants had used guns and shot down the three deceased. So the only question for our consideration is whether the High Court was justified in denying initial right of private defence to these appellants.

The learned Judges of the High Court have observed:

Even if mischief had been committed by Malpura people the same was continuing for three days preceding the occurrence, and hence there was no occasion for them to take the law into their own hands for attacking Malpura people. The High Court further pointed out from the evidence that a cut portion of the bund was filled up by Kusi people and there was some altercation and exchange of abusive words, and when Malpura people came shouting, some of them carrying lathis, the four accused took out their guns which they had concealed in the paddy field and started firing indiscriminately.

The High Court then proceeded to observe thus:

In such a situation it is difficult to accept that the accused persons were protected by the right of private defence of person and property. So far as property is concerned mischief was caused to the property but it was not caused under such circumstances as may reasonably cause apprehension in the minds of the accused persons that death or grievous hurt will be the consequence if such right of private defence was not exercised.

The High Court further observed that simply because some persons came shouting from Village Malpura was not enough to give rise to a reasonable apprehension that grievous hurt would be inflicted on the accused.

Supreme Court on the law of private defence of property

Section 97 IPC recognises the right of a person not only to defend his own or another’s body but to defend his own or another’s property even against an attempt to inflict any offensive act as against the property. It is now well settled that the rule of retreat which common law courts espoused is not relevant under the Indian Penal Code. If a man’s property is in imminent danger of being impaired or attacked he has the right to resort to such measures as would be reasonably necessary to thwart the attempt to protect his property. In India there is no rule which expects a man to run away when confronted with a situation where he can exercise his right of private defence.

No doubt Section 103 IPC, which deals with right of private defence as against an act which might be mischief or theft or criminal trespass, conditions that there should be reasonable apprehension that death or grievous hurt would otherwise be the consequence. But, that provision deals with the farthest extent of the right of private defence as against the above three categories of wrongs against the property. But a man pitted against such wrongs or even against attempts thereof need not wait for exercising his right of private defence until the apprehension of death or grievous hurt is burgeoned in his mind.

The Penal Code envisages two measures of right of private defence. One is the first degree which shall not reach up to causing of death of the wrongdoer. The other is the full measure which may go up to causing death. Both measures are, however, subjected to the restrictions enumerated in Section 99. Section 104 IPC contains the bridle that right of private defence shall not cross the limit of first degree as against acts which would remain as theft, mischief or criminal trespass. But Section 103 recognises extension of the said right up to the full measure, even as against the aforesaid acts but only if such acts or their attempts are capable of inculcating reasonable apprehension in the mind that death or grievous hurt would be the consequence if the right is not exercised in such full measure.

The emerging position is, you have the first degree of right of private defence even if the wrong committed or attempted to be committed against you is theft or mischief or criminal trespass simpliciter. This right of private defence cannot be used to kill the wrongdoer unless you have reasonable cause to fear that otherwise death or grievous hurt might ensue in which case you have the full measure of right of private defence.

Application of this law on the facts of this case

When the acts of Malpura people amounted to mischief, the appellants had a right of private defence to thwart the same. In the course of exercise of such right the appellants who gunned down the mischief-makers have obviously acted far in excess of the right of private defence. Nonetheless the first degree of right of private defence cannot be denied to them.


We are, therefore, of the view that the High Court was in error in holding that the appellants had no right of private defence at any stage. The trial court was correct in its approach regarding that aspect of the matter. We, therefore, allow these appeals. The conviction and sentence passed by the Sessions Court will stand.