VISHWANATH Vs. STATE OF UTTAR PRADESH

JUDGEMENT

(1.) This is an appeal by special leave against the judgment of the Allahabad High Court in a criminal matter. The facts of the case, as found by the High Court, are no longer in dispute and the question that is raised in this appeal is whether the appellant had exceeded the right of private defence of person. The relevant facts for our purposes are these, Gopal deceased was married to the sister of the appellant. The appellant and his father Badri were living in a railway quarter at Gorakhpur. Gopal's sister was married to one Banarsi, who was also living in another railway quarter nearby. Gopal had been living for some time with his father-in-law. They did not, however, pull on well together and Gopal shifted to the house of Banarsi. Badri persuaded Gopal to come back to his house but the relations remained strained and eventually Gopal shifted again to the quarter of Banarsi about 15 days before the present occurrence which took place on 11-6-1953, at about 10 p.m. Gopal's wife had continued to live with her father as she was unwilling to go with Gopal. Her father Badri and her brother Vishwanath appellant sided with her and refused to let her go with Gopal. Gopal also suspected that she had been carrying on with one Moti who used to visit Badri's quarter. Consequently, Gopal was keen to take away his wife, the more so as he had got a job in the lace department some months before and wanted to lead an independent life. On June 11, there was some quarrel between the appellant and Gopal about the girl; but nothing untoward happened then and the appellant went back to his quarter and Gopal went away to Banarsi's quarter. Gopal asked Banarsi's sons to help him in bringing back his wife. Banarsi also arrived and then all four of them went to Badri's quarter to bring back the girl. On reaching the place, Banarsi and his two sons stood outside while Gopal went in. In the meantime, Badri came out and was asked by Banarsi to let the girl go with her husband. Badri was not agreeable to it and asked Banarsi not to interfere in other people's affairs. While Badri and Banarsi were talking, Gopal came out of the quarter dragging his reluctant wife behind him. The girl caught hold of the door as she was being taken out and a tug-of- war followed between her and Gopal. The appellant was also there and shouted to his father that Gopal was adamant. Badri thereupon replied that if Gopal was adamant, he should be beaten (to maro). On this the appellant took out a knife from his pocket and stabbed Gopal once. The knife penetrated into the heart and Gopal fell down senseless. Steps were taken to revive Gopal but without success. Thereupon Gopal was taken to the hospital by Badri and the appellant and Banarsi and his sons and some others but Gopal died by the time they reached the hospital.

(2.) On these facts the Sessions Judge was of opinion that Badri who had merely asked the appellate to beat Gopal could not have realised that the appellant would take out a knife from his pocket and stab Gopal. Badri was, therefore, acquitted of abetment. The Sessions Judge was further of opinion that the appellant had the right of private defence of person and that this right extended even to the causing of death as it arose on account of an assault on his sister which was with intent to abduct her. He was further of opinion that more harm than the circumstances of the case required was not caused; and therefore the appellant was also acquitted.

(3.) The State then appealed to the High Court against the acquittal of both accused. The High Court upheld the acquittal of Badri. The acquittal of the appellant was set aside on the ground that the case was not covered by the fifth clause of S. 100 and that the right of private defence of person in this case did not extent to the voluntary causing of death of the assailant and therefore it was exceeded. The High Court relied on an earlier decision of its own in Emperor vs. Ram Saiya, ILR (1948) All 165. The appellant was therefore convicted under S. 304, Part II, of the Penal Code and sentenced to three years' rigorous imprisonment. He applied for a certificate to enable him to appeal to this Court but this was refused. Thereupon, he applied to this Court for special leave which was granted; and that is how the matter has come up before us.