DHOORA Vs. STATE

JUDGEMENT

(1.) THIS in an appeal by Dhoora, Bhera, Thakra and Adu against their conviction and sentence under secs. 304 read with secs. 34 of the Indian Penal Code and secs. 447 of the Indian Penal Code by the learned Additional Sessions Judge, Jalore. Appellant No. 1 i. e. Dhoora has been found guilty under sec. 304 of the Indian Penal Code and sentenced to rigorous imprisonment for seven years and a fine of Rs. 500/ -. He has been further sentenced to three months' rigorous imprisonment under sec. 447 of the Indian Penal Code. The remaining appellants have been sentenced to four years rigorous imprisonment and a fine of Rs. 100/- each under sec. 304 read with sec. 34 of the Indian Penal Code and to further rigorous imprisonment for three months each under sec. 447 of the Indian Penal Code.

(2.) THE incident out of which this case arose took place in the morning of 31st December, 1960 at Kabuli-ki-Dhani village Gundao Tehsil Sanchore. Two reports were made about this incident one by Harji on 1st January, 1961 at Police Station Sanchore and the other on the same day at 10 a. m. by Shri Anandsingh, Station House Officer. THE police submitted two separate challans on these reports. THE challan in the present case was submitted on the investigation made on the report of Harji. In the report lodged by Harji the case disclosed was that the present appellants along with three other persons namely Surjan son of Kana, Lala son of Phaglu and Dhola son of Phaglu armed with Dharias and lathis with the common object of beating Haru reached his house in the morning of 31st December, 1960 and told him that they would beat him as he had been helping Jai Kishen's party and thereafter, Dhoora appellant dealt a blow with a Dharia on the head of Haru and the remaining persons also gave him kicks. It was also stated that these persons also caused injuries to Naringa, Jodha and Mangla.

(3.) THE right of private defence is however, subject to the provisions contained in sec. 99 of the Indian Penal Code which lays down that - "there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities" In cases where there is no urgency and the danger is not imminent and effective help can be secured by having recourse to the protection of the public authorities, there is no right of private defence. Where however, there is a sudden attack upon a person it is not expected that he should submit to aggression but he can retaliate and use reasonable force to avert the danger. In the present case it is urged by the learned Assistant Government Advocate that as one Sub-Inspector of Police and two camel sawars were present on the scene of occurrence and thus the protection of public authorities was available, the appellants had no right of private defence. THE question is whether mere physical presence of the public authorities at the place of occurrence in all cases would deprive a person of his right of private defence. THE principle underlying the restriction on right of private defence is that people should not take the law in their own hands if they can have recourse to public authorities for the adequate protection of their person and property because it is the primary function of the State to protect the people from unlawful aggression. But where the public authorities on account of their incompetence, imbecility or any other such cause are unable to avert the danger to the person and property of an individual, his right of private defence is not lost. It cannot, therefore, be laid down as a general rule that a person is deprived of his right of private defence simply because the public authorities are available at the scene of occurrence. It is therefore, to be seen in the present case whether there was any actual threat or not to the person of Surjan when Dhoora and his companions reached the place of occurrence. If the threat was still there and the appellants could reasonably apprehend that grievous injury was likely to be caused to Surjan then they were justified in protecting his person from further injuries by using force to the extent of causing death. But if there was no danger to the person of Surjan and his assailants had run away from that place or effective protection could be had from the public authorities, present there, in that case the appellants would not have any right of private defence. THE evidence has therefore to be examined in the light of above considerations.