Vishwanath vs The State Of Uttar Pradesh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 32 of 1958

Decision Date: 03/09/1959

Coram: K.N. Wanchoo, Syed Jaffer Imam

In the matter titled Vishwanath versus The State of Uttar Pradesh, decided on 3 September 1959 by the Supreme Court of India, the judgment was authored by Justice K N Wanchoo, with Justices Syed Jaffer Imam and K N Wanchoo forming the bench. The petition was filed by Vishwanath and the respondent was the State of Uttar Pradesh. The decision is reported in 1960 AIR 67 and 1960 SCR (1) 646. The case concerned the criminal trial provision dealing with the right of private defence, specifically whether that right extends to causing the death of an abductor when the alleged abduction is not itself punishable. The factual scenario involved a husband, designated as G, attempting to forcibly remove his wife from her father’s residence; the wife’s brother, identified as the appellant, stabbed and killed G. The legal issue examined the applicability of Sections 97, 99, and 100 of the Indian Penal Code, 1860 (XLV of 1860), in this context.

The factual matrix revealed that the marital relationship between G and his wife was strained, prompting the wife to reside with her father B and brother V, the appellant. G, accompanied by three other persons, entered B’s quarters, seized his wife, and attempted to drag her away despite her resistance. While the wife clutched the door, G continued to pull her, prompting the appellant to shout to his father that G was being obstinate; B responded that G should be beaten. The appellant then produced a knife, thrust it into G’s chest, and caused G’s death. Both B and the appellant were tried for G’s murder; B was acquitted, whereas the appellant was convicted under Section 304 Part II of the Indian Penal Code and sentenced to three years of rigorous imprisonment. The appellant argued that his act fell within the right of private defence of person under the fifth clause of Section 100, asserting that G’s assault on his sister with the intent to abduct her justified lethal force. The State contended that the fifth clause of Section 100 applies only when the abduction itself constitutes a punishable offence under the Penal Code. The Court held that the appellant was entitled to the right of private defence of his sister’s person, a right that extends to causing the death of G. The Court clarified that the extended protection under Section 100 arises whenever an assault described in any of the six clauses of that section occurs, and it is not necessary that the assailant’s intention always constitute a punishable offence. The term “abduction” in the fifth clause of Section 100 was interpreted to mean the definition provided in Section 362, and the protection does not require the abduction to be of a type punishable under the Penal Code. Moreover, the Court found that the appellant did not inflict more harm than was necessary and therefore could not be held guilty of any offence. The judgment overruled the precedent set in Emperor v. Ram Saiya, I L R 1948 All 165, and cited earlier authorities including Jagat Singh v. King‑Emperor, A I R 1923 Lah 155, Daroga Lohar v. Emperor, A I R 1930 Pat 347, and Sakha.

The Court noted that the authorities cited by the appellant included The State, I.L.R. 1950 Nag. 508 and Dayaram Laxman v. State, A.I.R. 1953 Madhya Bharat 52. The appeal was a criminal one, identified as Criminal Appeal No. 32 of 1958, and was taken by special leave from the judgment and order dated April 25, 1957 of the Allahabad High Court in Criminal Appeal No. 992 of 1954. That High Court judgment itself arose from the judgment and order dated January 25, 1954 of the Additional Sessions Judge, Gorakhpur, in Sessions Trial No. 71 of 1953. Counsel S. P. Sinha and S. D. Sekhri represented the appellant, while G. C. Mathur and C. P. Lal, on behalf of G. N. Dikshit, appeared for the respondent. The judgment was delivered on September 3, 1959, by Justice Wanchoo.

Justice Wanchoo explained that this proceeding was an appeal by special leave against the Allahabad High Court’s decision in a criminal matter. The factual findings recorded by the High Court were no longer contested. Consequently, the sole issue before this Court was whether the appellant had transgressed the limits of the right of private defence of the person. To set the context, the Court recounted the relevant facts. The deceased, Gopal, had been married to the appellant’s sister. The appellant and his father, Badri, resided in a railway quarter at Gorakhpur. Gopal’s sister was married to Banarsi, who occupied another railway quarter nearby. Initially, Gopal lived with his father‑in‑law, but the relationship deteriorated, prompting Gopal to move to Banarsi’s house. Badri attempted to persuade Gopal to return, yet the uneasy relationship persisted, and about fifteen days before the incident, Gopal shifted back to Banarsi’s quarter. On June 11, 1953, at approximately ten o’clock at night, the incident occurred.

The Court further detailed that Gopal’s wife continued to reside with her father because she was reluctant to accompany Gopal. Both Badri and the appellant, identified as Vishwanath, supported the wife’s decision and refused to allow her to leave with Gopal. Gopal also harboured suspicions that his wife was involved with a man named Moti, who frequently visited Badri’s quarter. Motivated by these suspicions and having recently secured employment in a local department, Gopal was eager to retrieve his wife and establish an independent household. On the evening of June 11, a quarrel erupted between the appellant and Gopal concerning the wife, but no violence resulted; subsequently, the appellant returned to his own quarter while Gopal proceeded to Banarsi’s quarter.

Subsequently, Gopal requested Banarsi’s sons to assist him in bringing his wife back. Banarsi arrived, and the four men—Gopal, Banarsi, and Banarsi’s two sons—proceeded to Badri’s quarter with the intention of taking the woman. Upon arrival, Banarsi and his sons waited outside while Gopal entered the house. While Gopal was inside, Badri emerged and Banarsi asked him to permit the woman to leave with her husband. Badri declined the request and admonished Banarsi not to interfere in the affairs of others. As Badri and Banarsi continued their discussion, Gopal emerged from the quarter.

In the incident the appellant dragged his unwilling wife away, while the girl grasped the door as she was being taken out, resulting in a struggle between her and Gopal. The appellant was present and shouted to his father that Gopal was being obstinate. Badri responded that if Gopal persisted, he should be beaten. Following this instruction, the appellant produced a knife from his pocket and thrust it into Gopal, striking his heart. Gopal collapsed unconscious, and despite attempts to revive him, he did not recover. The group, including Badri, the appellant, Banarsi, Banarsi’s sons and several others, carried Gopal to the hospital, but he died before they arrived. The Sessions Judge held that Badri, who had only suggested that Gopal be beaten, could not have foreseen that the appellant would produce a knife and stab Gopal, and therefore Badri was acquitted of abetment. The Judge also concluded that the appellant was entitled to private defence of person, a right that, in his view, extended to causing death because the assault on his sister was intended to abduct her. The Judge further found that the appellant did not inflict more harm than was necessary under the circumstances, leading to the appellant’s acquittal as well. The State appealed this judgment to the High Court, challenging the acquittals of both accused. The High Court affirmed Badri’s acquittal but reversed the appellant’s acquittal, holding that the case did not fall within the fifth clause of section 100 and that the right of private defence of person did not permit the appellant to voluntarily cause death to his aggressor. Relying on its earlier decision in Emperor v. Ram Saiya, the High Court convicted the appellant under section 304 of the Penal Code, Part 11, and sentenced him to three years of rigorous imprisonment. The appellant sought a certificate to appeal to this Court, which was denied, after which he applied for special leave, which was granted, bringing the matter before the Supreme Court. The principal issue for consideration is whether the High Court’s reliance on the Ram Saiya decision is correct. The judgment notes that four other High Courts have taken a view different from that in Ram Saiya, namely in the cases of Jagat Singh v. King Emperor, Daroga Lokar v. Emperor, Lohar v. The State and Dayaram Laxman v. State, although the present judgment does not discuss those decisions further. The view expressed in Ram Saiya is that the term “abducting” in the fifth clause of section 100 refers only to conduct amounting to an offence under the Penal Code, not to the mere act of abduction defined in section 362, and therefore does not give rise to a right of private defence extending to causing death.

In this case the Court examined the scope of section 100 of the Penal Code and clarified that the term “abducting” occurring in that provision referred only to conduct that constituted an offence under the Code, not merely to the act of abduction described in section 362. The Court observed that a pure, simple abduction was not an offence, and consequently it could not give rise to any right of private defence. The extended right of private defence created by section 100 therefore arose only when the offence that occasioned the defence belonged to one of the descriptions enumerated in that section. The Court then set out the framework of private‑defence provisions: section 97 authorised private defence of a person against any offence affecting the human body; section 99 limited the exercise of that defence to the amount of force necessary to repel the attack and prohibited the infliction of greater harm than required. Section 100, the provision under consideration, was quoted in full: “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; (1) I.L.R. 1948 All. 165. (3) A.I.R. 1930 Pat. 347 (2). (2) A.I.R. 1923 Lab. 155 (1). (4) I.L.R. 1950 Nag 508. (5) A.I.R. 1953 Madhya Bharat 182. 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.” The Court emphasized that the right of private defence of a person arose only when there was an offence affecting the human body. Such offences were located in Chapter XVI of the Penal Code, sections 299 to 377, and included the use of criminal force and assault. Although abduction was also placed in Chapter XVI and defined in section 362 as the act of compelling a person by force or inducing him by deceit to go from any place, the Court noted that abduction by itself was not punishable. Punishment attached only when the abduction was carried out with a specific unlawful intent: if the intention was to murder or place the abducted person in danger of murder, section 364 applied; if the intention was to cause secret and wrongful confinement, section 365 applied; and if the abducted person was a woman and the intention was to compel her to marry against her will or to force or seduce her to illicit intercourse, section 366 applied. Thus, the Court concluded that the fifth clause of section 100 could be invoked only when the abduction was accompanied by an intent that made it an offence under the relevant sections of the Penal Code.

The provision applies when a person is taken against her will and may be forced or seduced into illicit intercourse, or when such a likelihood exists, as stipulated in section 366. If the purpose of the abduction is to cause grievous hurt, to expose the abducted person to the danger of grievous hurt, to impose slavery, or to satisfy the unnatural lust of any person, the offence falls under section 367. When the abducted individual is a child younger than ten years and the intention is to dishonestly appropriate any movable property from the child, the relevant provision is section 369. It has been argued that the fifth clause of section 100 cannot be invoked unless an offence under one of these sections is likely to be committed. However, a plain reading of that clause shows no justification for interpreting the term “abducting” to mean anything more than the definition of “abduction” provided in section 362.

The right of private defence of person arises only when an offence against the human body has been committed. Section 100 extends the right of private defence of person to situations where the offence that triggers the right matches any of the descriptions enumerated in the section. Each of the six clauses of section 100 refers to an assault, and assault constitutes an offence against the human body according to section 352. Consequently, before the extended right under section 100 can arise, there must first be an assault, and that assault must correspond to one of the six types listed in the clauses of the section.

The judgment in Ram Saiya’s case appears to overlook the fact that every clause enumerated in section 100 involves an offence against the human body, namely assault. Therefore, the right of private defence arises in response to that assault, and section 100 provides that if the assault is of an aggravated nature as described in the clause, the right of private defence may extend to causing death. The use of terms such as “grievous hurt,” “rape,” “kidnapping,” or “wrongfully confining” in some clauses does not require that the intention behind the assault itself constitute a separate offence. In other clauses, the words indicating intention do not correspond to any offence under the Penal Code. For instance, the first clause requires that the assault be such that it may reasonably cause apprehension of death, yet death is not defined as an offence anywhere in the Penal Code. Accordingly, when the word “abducting” appears in the fifth clause, the term itself need not be an offence for the clause to be invoked on behalf of a

The Court observed that the fifth clause of section one hundred is triggered whenever an individual is subjected to an assault that qualifies as an offence against the human body and that assault is carried out with the specific intention of abducting the victim; when both of these elements are present, the clause is deemed to apply. It further clarified that the legal definition of “abduction” consists of two distinct categories: first, abduction in which a person is compelled by force to move from any place, and second, abduction in which a person is induced by deceitful means to move from any place. The Court stressed that the fifth clause contemplates only the former category, namely, abduction effected by force, and that the right of private defence arising from such a forced assault extends even to the point of causing the death of the assailant. In the Court’s view, it would be unreasonable to require a person who is being forcibly abducted to pause and analyse whether the abducting party harbours any additional intention enumerated in other sections of the Penal Code before taking defensive action, even if that action results in the death of the abductor. The Court noted that the framers of the Code were aware that abduction in itself does not constitute an offence unless it is coupled with a further criminal purpose, yet the wording of the fifth clause employs the term “abducting” without attaching any qualification that would limit it to the type of abduction described in sections three hundred and sixty‑four onward. Consequently, the Court rejected the interpretation advanced in Ram Saiya’s case and held that the plain meaning of the fifth clause must be given its full effect. Applying this principle to the facts of the present case, the Court held that when the appellant’s sister was being forcibly abducted—despite the abducting party being her husband—an assault was being committed against her, and the appellant thereby acquired the right of private defence of his sister’s person against an assault intended to abduct her by force, a right that includes the power to cause the abductor’s death. The Court then turned to the question of whether the appellant’s conduct fell within the limits prescribed by section ninety‑nine. It rejected the submission that the right of private defence never permits the infliction of greater harm than is necessary, and that the appellant had exceeded that limit. In the Court’s opinion, the appellant delivered only a single blow with a knife that he happened to have in his pocket; the blow unfortunately struck the heart, resulting in Gopal’s death. However, the Court observed that the single strike with an ordinary knife, had it landed slightly differently, would not have been fatal, and therefore the appellant did not exceed the lawful degree of force required for self‑defence.

In the judgment, the Court rejected the allegation that the appellant had inflicted more injury than was necessary for the purpose of defence. The Court referred to the earlier decision in Amjad Khan v. The State (1) and quoted the passage that “these things cannot be weighed in too fine a set of scales or in golden scale,” thereby emphasizing that the propriety of the force used cannot be measured with overly precise or exacting standards. On that basis, the Court held that the appellant was entitled to rely upon the right of private defence of the person provided in the fifth clause of section 100. It further concluded that the appellant’s conduct fell within the scope of that right and that he had not caused any injury beyond what was required to repel the alleged assault. Consequently, the Court set aside the conviction, acquitted the appellant of the charge and ordered that the appeal be allowed. Appeal allowed.