MOHD KHALID v STATE OF WEST BENGAL [2002] 3 LRI 823 CRIMINAL APPEAL NOS 1114, 1120, 1121, 1158

AND 1298 OF 2001 AND 299 AND 494 OF 2002 SUPREME COURT OF INDIA (CRIMINAL APPELLATE JURISDICTION) DECIDED-DATE-1: 3 SEPTEMBER 2002 BN KIRPAL CJI, KG BALAKRISHNAN AND ARIJIT PASAYAT JJ
The accused persons conspired to manufacture and explode bombs to strike terror and to adversely affect communal harmony amongst the Hindu and the Muslim communities. Pursuant to the criminal conspiracy, they exploded a bomb in a crowded area resulting in the death of several people and destruction of property. The designated court found the accused guilty of offences punishable under the Indian Penal Code 1860 (the IPC'), the Explosives Substances Act 1908 and the TADA Act. However, they were found not guilty of offences under ss 302 and 436 read with s 34 IPC. The accused persons challenged the legality of their conviction and the state appealed questioning the propriety of their acquittal in respect of the offences under ss 302/34 and 436/34 IPC. They claimed that they were preparing to protect themselves in the exercise of their right of private defence as they apprehended an attack by the Hindus. Therefore, they were not the aggressors and their preparations to protect their rights and properties in the event of an attack was not to spread terror or to cause any unlawful act but was intended to be used as a defence. Held: dismissed their appeal. The court referred to Yogendra Morarji v State of Gujarat (1980) 2 SCC 218 and held that Right of private defence never commences before a reasonable apprehension arises in the mind of the accused. Here there was no evidence that there was any indication about attack on the Muslims and, therefore, the question of any reasonable apprehension does not arise. Argument There was no indication of attack by Malang on Gala. Hence, there was no reasonable apprehension of death on Galas part. Gala merely perceived a human presence at the foot of his bed. He did not see that human whom he perceived was going to bring an imminent danger to his life. Gala did not see Malang was carrying a knife or weapon or going to attack him. From the circumstance, it is logic to assume that at the time of attacking by Gala, the room was dark. Gala was only able to see a vague shadow of a human. Gala at that time could not have seen or perceived that Malang was going to kill him because Gala could not have seen whether Malang was carrying an offensive weapon. Therefore, Gala at that time was not certain that whether he was going to be killed. Hence, it is unreasonable for him to believe that his life was in peril. Malang was only present at the foot of Galas bed, there was still a large distance between them. If Malang was going to kill Gala, Malang would have been nearer to Gala probably besides Galas bed in order to hurt his vital. Since, there was a large distance between Malang and Gala, it is unreasonable for Gala to apprehend that his life was in peril.