DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY

LUCKNOW

2014-2015

SEMESTER III

CRIMINAL LAW – I
PROJECT

CASE COMMENT: STATE OF RAJASTHAN v. MANOJ

KUMAR with STATE OF RAJASTHAN v. RAJ KUMAR

Submitted by:- Submitted to:-

Garima Parakh Dr. K A Pandey
Roll no. 57 Asst. Professor
B.A.LLB(Hon) Dr. RMLNLU
 ACKNOWLEDGEMENT

I would like to extend my sincere thanks to

My teacher and my mentor Dr. K A Pandey for giving me this

wonderful opportunity to work on this project and for his able guidance
and advice,

Vice Chancellor, Dr. Gurdeep Singh Sir and Dean (Academics),

Professor C.M. Jariwala for their encouragement and Enthusiasm;

My seniors for sharing their valuable tips;

And my classmates for their constant support.

 INTRODUCTION

NAME OF THE CASE: State of Rajasthan v. Manoj Kumar with State of Rajasthan v. Raj
Kumar
BENCH STRENGTH: K. S. P Radhakrishnan and Dipak Mishra JJ.
CITATION: (2014) 5 SCC 744

In exercise of right of private defence, the act committed constitutes an offence but it is justified
as it was committed to prevent unlawful use of force or to prevent certain other circumstances.
Defending oneself and one’s property against any harm is a natural instinct possessed by every
human being as well as lower animals. However, this right has been qualified with certain
conditions. In order to determine whether the right of private defence exists or not the entire
incident must be evaluated and examined with care and viewed in its proper setting. 1 The
following factors are crucial in determining existence of the said right –
1. Injury received by the accused
2. Imminence of threat to safety of the accused
3. Injury caused by the accused
4. Sufficiency of time for recourse to public authorities
The injury or threat of injury to the accused must be immediate and such that recourse to public
authorities is rendered impossible due to the paucity of time and imminent nature of the threat. In
the present case the decision of the Supreme Court in Munshi Ram v State of Madhya Pradesh2
has been cited time and again. The Court, in this case, observed that the law does not require a
person whose property has been forcibly occupied to run to the public authorities to seek
assistance. Right to private defence has a social purpose and must be liberally construed. Such a
right is a deterrent and restraining influence on bad characters and encourages the free spirit of a
citizen in defending his right over his property. The present case further highlights the fact that
though right of private defence exists, it is not absolute and degree of force used to repel or drive
away the threat should be proportional to the threat. The force used need not be precisely
calculated to be exactly proportionate to the threat, but one does not possess a free hand to use
whatever degree of force one pleases to mitigate the threat. The law does make allowances for
usage of marginally disproportionate force in the face of imminent threat with due consideration

1
Ratanlal and Dhirajlal, The Indian Penal Code (Lexis Nexis Butterworths Wadhwa 2008).
2
AIR 1968 SC 702.
to the state of mind at that time. Another important aspect that has been touched upon is the
nature of the burden of the defence. The defence need prove mere preponderance of probability
and even if the plea of private defence has not been taken by the defendant the fact that it is
implicit in the circumstances is enough for the defence to be valid. All these aspects as well as
other minor ones have been discussed in detail in the following pages.

STATEMENT OF FACTS

1. The deceased, Anirudh Mishra, along with his brothers Mahesh Kumar Saini (PW 3) and
Basant Mishra (PW 4), had gone to a plot purchased by their brother in order to take
possession and commence construction work on the plot.
2. They did so due to the apprehension of the accused brothers Hemanth Kumar (H),
Rajkumar (R) and Manoj Kumar (M), taking possession of the said vacant plot.
3. The accused first abused the deceased and his brothers and later Rajkumar opened fire on
them which resulted in the deceased sustaining a gunshot injury to which he later
succumbed.
4. H and R were arrested while M was declared to be absconding. Therefore a separate
charge sheet was filed for M when he was caught. The accused were tried under S. 302
read with S. 34 of IPC.
5. The Trial Judge found them guilty on both counts and convicted them. The High Court
accepted their plea of private defence and acquitted Hemanth Kumar and Manoj Kumar
but convicted Rajkumar under S. 304 of IPC since he had exceeded the right of private
defence. The prosecution appealed to the Supreme Court.

ISSUES INVOLVED

1. Whether the High Court was justified in accepting the contention of the right of private
defence.
2. Whether Rajkumar exceeded the right to private defence
3. Whether the conclusion of the High Court that S. 34 IPC could not be attracted regard
being had to the facts is correct
 4. Whether the right to private defence can be considered by the court when plea of the
same has not been taken by the accused

LAW ON THE POINT AND ITS LOCATION

Sections 97-100 and 34, 300, 302 and 304 of the Indian Penal Code, 1860 have been relied upon
to give this judgment, along with Sections 25 and 27 of the Arms Act, 1959. Sections 97-100
deal with the general exception of private defence while sections 300, 302 and 304 deal with
murder.

Section 97 of the Indian Penal Code, 1860 states –

“97. Right of private defence of the body and of property – Every person has a right, subject to
the restrictions contained in Section 99, to defend-
First-His own body, and the body of any other person, against any offence affecting the human
body;
Secondly-The property, whether movable or immovable, of himself or of any other person,
against any act which is an offence falling under the definition of theft, robbery, mischief or
criminal trespass, or which is an attempt to commit theft, robbery, mischief for criminal
trespass.”

Section 99 of the Indian Penal Code, 1860 states –

“99. Acts against which there is no right of private defence – There is no right of private
defence against an act which does not reasonable cause the apprehension of death or of grievous
hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of
his office, though that act, may not be strictly justifiable by law.
There is no right of private defence against an act which does not reasonable cause the
apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a
public servant acting in good faith under colour of his office, though that direction may not be
strictly justifiable by law.
There is no right of private defence in cases in which there is time to have recourse to the
protection of the public authorities.
Extent to which the right may be exercised:--The right to private defence in no case extends to
the inflicting of more harm that it is necessary to inflict for the purpose of defence.

Explanation 1: - A person is not deprived of the right of private defence against an act done, or
attempted to be done, by a public servant, as such, unless he knows or has reason to believe, that
the person doing the act is such public servant.
Explanation 2: - A person is not deprived of the right of private defence against an act done, or
attempted to be done, by the direction of a public servant, unless he knows, or has reason to
believe, that the person doing the act is acting by such direction, or unless such person states the
authority under which he acts, or if he has authority in writing, unless he produces such
authority, if demanded.”

Section 100 of the Indian Penal Code, 1860 states –

“100. When the right of private defence of the body extends to causing death – The right of
private defence of the body extends, under the restrictions mentioned in the last preceding
section, to the voluntary causing of death or of any other harm to the assailant, if the offence
which occasions the exercise of the right be of any of the descriptions hereinafter enumerated,
namely :--
First-Such an assault as may reasonably cause the apprehension that death will otherwise be the
consequence of such assault;
Secondly-Such an assault as may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such assault;
Thirdly-An assault with the intention of committing rape;
Fourthly-An assault with the intention of gratifying unnatural lust;
Fifthly-An assault with the intention of kidnapping or abducting;
Sixthly-An assault with the intention of wrongfully confining a person, under circumstances
which may reasonably cause him to apprehend that he will be unable to have recourse to the
public authorities for his release.”
Section 300 of the Indian Penal Code, 1860 states –

“300. Murder – Except in the cases hereinafter excepted, culpable homicide is murder, if the act
by which the death is caused is done with the intention of causing death, or-
Secondly.-
If it is done with the intention of causing such bodily injury as the offender knows to be likely to
cause the death of the person to whom the harm is caused, or-
Thirdly.-
If it is done with the intention of causing bodily injury to any person and the bodily injury
intended to be inflicted is sufficient in the ordinary course of nature to cause death, or-
Fourthly.-
If the person committing the act knows that it is so imminently dangerous that it must, in all
probability, cause death or such bodily injury as is likely to cause death, and commits such act
without any excuse for incurring the risk of causing death or such injury as aforesaid.”

Section 304 of the Indian Penal Code, 1860 states –

“304. Punishment for culpable homicide not amounting to murder – Whoever commits
culpable homicide not amounting to murder shall be punished with imprisonment for life, or
imprisonment of either description for a term which may extend to ten years, and shall also be
liable to fine, if the act by which the death is caused is done with the intention of causing death,
or of causing such bodily injury as is likely to cause death,
Or with imprisonment of either description for a term which may extend to ten years, or with
fine, or with both, if the act is done with the knowledge that it is likely to cause death ,but without
any intention to cause death, or to cause such bodily injury as is likely to cause death.”

Section 34 of the Indian Penal Code, 1860 states –

“34. Acts done by several persons in furtherance of common intention – When a criminal act is
done by several persons in furtherance of the common intention of all, each of such persons is
liable for that act in the same manner as if it were done by him alone.”
Section 27 of the Arms Act, 1959 states –

“27. Punishment for using arms, etc.- (1) Whoever uses any arms or ammunition in
contravention of section 5 shall be punishable with imprisonment for a term which shall not be
less than three years but which may extend to seven years and shall also be liable to fine.
(2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7
shall be punishable with imprisonment for a term which shall not be less than seven years but
which may extend to imprisonment for life and shall also be liable to fine.
(3) Whoever uses any prohibited arms or prohibited ammunition or does any act in
contravention of section 7 and such use or act results in the death of any other person, shall be
punishable with death.

HOLDING OF THE COURT

There was no minority judgment on this point and both the judges gave a unanimous judgment.
In the case of Bhanwar Singh v State of Madhya Pradesh3 it was held that for a plea of private
defence to succeed in totality, it must be proved that there existed a right of private defence in
favour of the accused, and that this right extended to causing death; and if the court were to
reject the said plea, there are two possible ways this may be done i.e. it may be held on one hand
that it may be held that there was a right to private defence of the body, however, more harm
than necessary was caused or, alternatively this right did not extend to causing death and in this
case it would result in the application of exception 2 of S. 300 IPC.

There is material on record that there were altercations between the accused and the deceased on
the one hand and the others and there was threat that the informant and others would take over
possession. The High Court has found that there was a threat to the property of Rajkumar and he
had made an effort to drive away the informant and others. Though the prosecution has come out
with the version that the accused persons were trying to take over possession, yet on scrutiny of
evidence it becomes quite vivid that they were in a hurry to raise construction at the site and
accordingly, were taking steps. In this context, the act of the accused is to be adjudged. It has to
be appreciated regard being had to the surrounding circumstances and not by way of microscopic

3
(2008) 16 SCC 657.
pedantic scrutiny4. Although it is clear that R had fired the bullet which resulted in the gunshot
injury, it was not with the intention of causing death of the deceased. No evidence has been
brought forth by the prosecution regarding any malice intention that R had against the deceased.
If it would have been done no right of private defence would have existed. Therefore, the High
Court has rightly held by accepting the submission that Rajkumar exceeded the right of private
defence and convicted him under S. 304 Part I of IPC.

In the case at hand, the plea of right of private defence arises on the basis of materials on record.
As far as onus is concerned, we find that there is ocular and documentary evidence to sustain the
concept of preponderance of probabilities. It cannot be said that there is no material on record or
scanty material to discard the plea. Thus the submissions of the prosecution are unacceptable and
therefore rejected.

On the question whether there was a common intention to exceed the right of private defence, the
case of State of Bihar v Nathu Pandey5 is of importance here. It was opined that though it is
accepted that some of the accused had exceeded the right of private defence, when it is not
possible to say all the accused had a common object to commit murder and only those who
exceeded the right of private defence would be held responsible for the murders. The same
principle can be applied to the present case since the facts of the two cases are similar and the
question involved is the same too. Therefore, in such a case, the guilt of each of the accused, who
had exceeded the right of private defence had to dealt with separately. The matter would have
been totally different had the right of private defence not existed at all or the accused persons had
done any overt act. Thus the constructive liability as envisaged under S. 34 is not attracted. In
our aforesaid analysis, we do not perceive any merit in these appeals, and accordingly, they are
dismissed.

RATIO

When the right of private defence has been exceeded only by one of the accused and common
intention cannot be attributed to the rest, the guilt of each of the accused has to be judged
separately.

4
Vidhya Singh v State of Madhya Pradesh (1971) 3 SCC 244.
5
(1969) 2 SCC 207.
 CASE ANALYSIS

Contention on Right to Private Defence

The evidence of existence of a dispute between Parasram Lisadiya and Phool Chand Lisadiya,
which was adjudicated by way of a permanent injunction in favour of Parasram Lisadiya with
regard to the said vacant plot, has also been taken into consideration. Parasram sold the land to
Ramesh Mishra, brother of the deceased, which also did not resolve the dispute. The victim party
went to take possession of the land and begin construction work on the apprehension that
possession would be taken by the accused. The intention of the accused was merely to protect
their right to property and there was no intention to injure anyone. There were altercations
between the two parties when abuses were exchanged and there was threat to the right of the
accused over the property, in protection of which a shot was fired. The intention was clearly not
to cause death of the deceased and the prosecution has not discharged its burden of proof by
failing to prove existence of any malice or vindictiveness on part of R. Thus the right of private
defence exists. This has been established by referring to the following facts –

1. There was a dispute regarding ownership and possession of the plot.

2. The materials for construction had been gathered only a few days before the incident.
3. The Municipal Council had granted permission only four days prior to the incident.
4. The victim party was apprehensive about losing possession.
5. An affirmative plea with regard to possession had been taken by the accused.
6. Rajkumar had fired the shot with the intention of defending the property and driving
away the trespassers.

These facts persuaded the High Court to accept the plea of private defence even though it was
not specifically plead before the court. In the case of Munshi Ram v Delhi Administration6 it was
held that –

“Even if the accused does not take the plea of private defence, it is open to the court to consider
such a plea if the same arises from the material on record and burden to establish such a plea is
on the accused and that burden can be discharged by showing preponderance of probabilities in
favour of that plea basis the material on record.”

6
AIR 1968 SC 702.
The burden to prove existence of a right of private defence lies on the defendant and he must either
adduce positive evidence, or place material on record by himself or by eliciting necessary facts
from witnesses.7 However, the burden on the defence is not equal to that on the prosecution.
Proving mere preponderance of probability is sufficient for the defence while the prosecution must
prove its case beyond reasonable doubt. This is because of the principle in criminal law to presume
innocence until proven guilty. In the case of Salim Zia v State of Uttar Pradesh8 it was observed by
the Supreme Court –

“It is true that the burden on the accused to establish the plea of self defence is not as onerous as
the one lying on the prosecution and that while the prosecution is required to prove its case
beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his
onus by establishing a mere preponderance of probabilities, either by laying basis for that plea in
the cross-examination of defence witnesses or by adducing defence evidence.”

Contention on accused exceeding right of private defence

In the face of imminent peril, the accused is not expected to weigh on ‘golden scales’ the precise
degree of force to be used in exercising the right to private defence. The law makes allowances
for those who get slightly carried away in exercising their right of private defence. 9 In the present
case, the accused in question (Rajkumar) fired the shot in order to protect his right over the
property and had no intention of killing the deceased. He did get carried away in the heat of the
moment which resulted in him using excess force to drive away the trespassers. However, the
prosecution failed to establish beyond reasonable doubt the vindictiveness and malice R held
against the deceased and therefore R must be convicted as such. The situation has to be judged
with regard to all the facts and circumstances, which brings us to this conclusion.

Contention of right to private defence being considered when plea for the same is not taken

The evidence on record is proof of the fact that the accused were involved in defending their
right of possession over the property during which one of them fired a gunshot which resulted in
injury to the deceased and finally death. The argument of the prosecution that the plea of private
defence was invalid since it was not taken by the accused is incorrect, since the material on

7
Munshi Ram v Delhi Administration AIR 1968 SC 702.
8
(1979) 2 SCC 648.
9
Mohd Ramzani 1980 SCC (Cri) 907.
record is clear proof of the nature of the acts of both the parties and it is evident prima facie that
the accused were exercising their right of private defence against the victim party. It is therefore
unacceptable to argue that there is insufficient material to conclude that the accused were
exercising their right of private defence. In the case of Vidhya Singh v State of Madhya
Pradesh10 the Court observed that the actions of the accused must be judged with regard to the
surrounding circumstances and not by way of microscopic pedantic scrutiny.

Contention of application of S. 34 IPC in the present case

S. 34 of IPC deals with cases where there is a common intention among the accused to commit a
particular act. In the present case, there existed a common intention among the accused to protect
their right of possession over the property which resulted in an altercation between the two
parties. In the middle of that altercation, R fired a bullet which caused the death of the deceased.
There was no common intention among them to fire the bullet and no intent to kill at all. The
material on record is evidence of the imminent threat posed to the right of possession over the
property and the action of the accused in defending it. In the case of State of Bihar v Nathu
Pandey11 some of the accused exceeded the right of private defence. The High Court opined that
when it is not possible to say that all the accused persons had the common object to commit
murder, only those who exceeded the right to private defence would be held liable. The same
decision was referred to in Joginder Ahir v State of Bihar12 and the High Court convicted the
appellant-accused under S. 304 Part II of IPC. In the aforementioned case the question was with
regard to S. 34 of IPC, and the Court held as follows –

“We are unable to concur with the High Court that any such view could be attributed to the
appellants on the facts and in the circumstances of the case. They certainly had the common
intention of defending the invasion of right to property. While doing so if one or two of them took
it into his or their heads to inflict more bodily harm than was necessary, the others could not be
attributed the common intention of inflicting the injuries which resulted in the death of the
deceased. Section 34 can only be applied when a criminal act is done by several persons in
furtherance of the common intention of all. No overt acts had been proved or established on part
of the appellants which showed that they shared the intention of the person or persons who
inflicted the injury or injuries which led to the death of the deceased. They cannot therefore be

10
(1971) 3 SCC 244.
11
(1969) 2 SCC 207.
12
(1971) 3 SCC 449.
held guilty of an offence under S. 304 Part II read with S. 34. ” Therefore, since the rest of the
accused did not share the common intention of R in firing the shot, they cannot be held liable for
his acts. R will be held liable separate from the rest of the accused because though his intention
was to protect and defend the possession over the property, it does not justify his use of excess
force in doing so.

CRTICAL ANALYSIS

The judgment of the present case is well-reasoned and each issue has been appropriately
addressed. The point of law in this case has not been differentiated from its preceding cases and
is in concurrence with it. The difference lies in the clarity of the facts. There exists no dispute
with regard to the facts and only the application of the law is moot. It is well settled from the
facts that the plot in question was disputed before its sale to Mr. Ramesh Mishra and even a
permanent injunction could not resolve the dispute. Both the parties were claiming possession
over the plot and there clearly existed a certain measure of animosity between them. In fact, the
facts clearly prove that Ramesh Mishra had acquired full legal right over the plot vide a
registered sale deed. In the light of these facts and circumstances, the prosecution has failed to
adequately discharge its burden of proving the crucial point that all the accused had common
intention in using excessive and unreasonable force against the victim party and can therefore be
convicted under S.34 of IPC as well. Therefore, the judgment of the High Court was upheld on
all counts and that of the Trial Court was overturned.
 CONCLUSION

Right to private defence is integral for the protection of life, limb and property. Although this is
the prerogative of the State, even the most resourceful State cannot deploy policemen for the
protection of every individual. Even the most capable and resourceful State cannot intervene in
every circumstance when intervention is required and absence of the right of private defence
would endanger the security and safety of the people. This is the logic behind existence of the
right of private defence. In the instant case, the conditions imposed in taking such a plea have
been discussed with the main contention being whether the right to private defence exists and
whether it has been exceeded through a common intention among the accused. The Supreme
Court has concurred with the judgment of the High Court in holding that the plea of private
defence is valid and maintainable by virtue of the facts of the case which clearly signify that act
done by the accused party was in the course of protection of their right to possession over the
said property. However, since the force used by one of the accused was excessive, he will have
to incur liability to that extent. Further, the use of excessive force cannot be attributed to the
other accused by way of common intention since, though there existed a common intention to
safeguard the possession of the property, the others did not share in the use of disproportionate
force for the same purpose. Therefore, only he will be held liable for his actions. The prosecution
failed to establish existence of a common intention among the accused to use disproportionate
force despite evidence of a long standing dispute between the victim party and the original
owners. The judgment given in this case is well-reasoned as well as brief. The brevity has not
adversely affected the quality of the judgment which is commendable. This judgment follows the
principles laid down by its predecessors.