MOHINDER PAL JOLLY v. STATE OF PUNJAB
Citation: [1979] 2 S.C.R. 805; 1978 INSC 261
Court: Supreme Court of India
Bench: N.L. UNTWALIA , O. CHINNAPPA REDDY
Judgment date:
Case summary
1978 INSC 261. Supreme Court of India judgment dated 1978-12-14. MOHINDER PAL JOLLY v. STATE OF PUNJAB. Read the judgment and case details on LawSphereX.
Judgment text
, I • + \ • 805 MOHINDER PAL JOLLY A v. STATE OF PUNJAB December 14, 1978 [N. L. UNTWALIA AND 0. CHINNAPPA REDDY, JJ. ] B Indian Penal Code, 1860 (Act 45 of 1860) Ss. 99, IOI, 103, 302, 303 and 304. Factory owner fired from revolver on workers agitating for ·wages outside factory-Death of a worker-Accused claiming right of private defence of pro- perty and person-Right when available-Accused if should be convicted and sentenced under Part-II of. Section 304 and not Part-l. There was h dispute between the appellant, a factory owner and his em- C ployees in regard to wages, during the period of their lay-off. The prosecution alleged that on the day of th~ occurrence when the workers gathered outside the factory and raised innocuous slogans demanding their wages, the appellant came out and fired a . shot from his revolver, which hit a worker resulting in his death.
The ::ippellant on the other hand alleged that a large number of labourers who collected outside the factory, shouted very abusive slogans, threatening that they would not k. ave him alive and showered brickbats at the factory premises causing damage to the appellant's property. Apprehending im1n1nent danger to his life and property, his driver fired a shot from the revolver which resulted in the death of the deceased. The trial court, with whose findings the High Court agreed, found that the \\'orkers might hav" hurled brickbats into the factory premises; but they did not break the barbed wire on the boundary wall nor did they try to scale the boundary wall. that they did not carry any sticks, that no brickbats hurled by the workers could enter the appellant's office and therefore his version that some brickb:its damaged the glass on his office table was incorrect and that it was the appellant and not his driver that fired his revolver which resulted in the death of the Otceased.
The High Court, agreeing with the trial court, held that though the appellant had the right of private defence of property it did not go to the extent of causing death and, therefore, he exceeded his right of private defence. Holding that the offence fell under Exception 2 to s. 300 IPC the High Court convicted him under s. 304, Part-I. In appeal to this Court it was contended on behalf of the aPpeiiarit that in the exercise of his right of private defence the appellant was entitled to and justified in la\1. ' in using force even to the extent of causing death ilthough he never intended to kill the deceased or anyone. On the facts and circtimstances of the case, it did not come \Vithin clause 4thly of s. 300; or even if it fell with- in that provision, on the application of exception 2, he could only be convicted under Part II of s. 304 and not under Part I. Even if his conviction were maintained, imposition of ti. he would meet the ends of justice.
Dismissing the appeal in part, HELD : The appellant could be convicted only under Part-II of s. 304 and not Part-I. [813 CJ. 13-4~ SCl/79 I> E F G H A B c D E F G 806 SUPREME COURT REPORTS [ 1979] 2 S. C. R. (I) The High Court was right in not finding the appellant guilty of having committed culpable homicide amounting to murder wjthin clauses Firstly, Secondly or Thirdly and finding him guilty with the aid of clau':ie 4thly \vhere the intention to cause murder is absent but "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". The clause further aays that the person "commits such act without any excuse for incurring the risk of causing death or 5UCh injury as aforesaid. " The appellant must have committed the act with the knowledge that it was imminently dangerous and in all probability must cause death or such bodily injury as was likely to cause death.
Dehors Exception 2, he had no excuse for committing the said ai:t. [813 D-El In the present case the workers' demand for wages was not legal. The workers raised provocative ~logans and did throw brickbats damaging the appellant's property and endangering it to further damage. But !. hat by it~elf could not give any right of private defence of person to the appellant. There is no cvidt:nce to show that the workers had broken the barbed wire or that iome of them tried to scale the boundary wall. It may well be that some of them tried to raise their heads above the boundary wall. The- appellant came out of his office and fired the shot, ¥lhich could not be merely to scare away the crowd of workers. He could and did fire the shot so. that it could pass over the boundary wall almost grazing it. The bullet which must have paased just over the boundary wall could and did hit the deceased killing him instant- anoous! y. [812C-813C] 2.
(a) In the matter of exercise of the right or private defence of property er person the onus is on the accused to establish this right not on the basis of the standard of proving it beyond doubt but on the theory of preponderance of probability. He might or might not take this plea explicitly or might or might not adduce any evidence in support of it but he can succeed in his plea if he is able to bring out materials on the record on the basis of evidenco of the pr06CCution witnesses or on other piec~ of evidence to show that the appa- rently criminal act which he committed was justified in exercise of his right of_ private defence of person or property or both. But the exercise of this ri~ht i! ll subject to the limitation and exceptions provided in section 99 of the Code. As to when the right of private defence of the body extends to causing death ·i, provided for in 1. 100.
[813 F-814 A] (b) The appellant had not only the right of private defence of his pro- perty but also, his body to a. limited extent within the meaning of s. 101 iubject to the 'restrictions mentioned in e. 99. This did not extend to the idicting of so much harm to the deceased and causinS his death, nor does the tight of private defence of property available to an accused extend to cau1ing death, unless it is covered by any of the clause of s. 103. [814 B] (c) When mischief is caused to property it mu~t be shown that it was caUJed under such circumstAncc. as may reasonably cause apprehension that iieath or grevious hurt would be the consequence if such right of pri"Yate defen. ce WM not exercised. A mere claim of such apprehen! ''.! ion i and stop them from continuing their un- justified agitation, the raising of the slogans and the throwing of the brick-bats.
But then, although the intention was not to kill or cause 5uch bodily injury as was sufficient in the ordinary course of nature to cause death, yet he must have committed the act knowing that it was so imminently dangerous that it must in all probability cause death or such bodily injury as was likely to cause death of the worker or worker& standing on the other side of the boundary wall. I \ • • • J ;. • • M. P. JOLLY v. PUNJAB (Untwalia, J. ) 815 A question now arises whether the appellant was guilty under Part-I of section 304 or Part-II. If the accused commits an act while exceeding the light of private defence by which the death fs caused either with the' intention of causing death or with the intention of causing such bodily injury as was likely to cause death then he would be guilty under Part-I.
On the other hand if before the application of any of the Excep· tions of section 300 it is found that he was guilty of murder within th0 meaning of clause '4thly', then no question of such intention arises and only the knowledge is to be fastened on him that he did indulge in an act with the knowledge that it was likely to cause death but without any intention to cause it or without any intention to cause such bodily injuries as was likely to cause death. There does not seem to be any escape from the position, therefore, that the appellant could be convic- ted only under Part-II of section 304 and not Part-I. Even so on the facts and in the circumstances of this case we do not feel per'suaded to let off the appellant with an imposition of fine only. We, however, thought that sentence of three years' dgorous imprisonment would meet the ends of justice in this case.
We were informed at the Bar and an affidavit sworn by the appellant's wife was also filed before ns to the effect that the appellant was in jail for about nine months as an under trial prisoner and for about four months after conviction. Thus he has already undergone imprisonment for a period of about a year and a month. The occurrence took place more than a decade ago. The appellant had to pass this long ordeal all these \ ~ years both mentally and financially. Considering, therefore, the totality of the circumstances while maintaining the imposition of fine of Rs. 10,000/- and in default two years' further imprisonment, we reduce his substantive term of imprisonment to the period already undergone and maintain the conviction of the appellant not under Part-I of section 304 of the Penal Code but under Part-II. In tl1c result the appeal is dismissed but subject to the modification , made above in regard to the appellant's conviction and sentence . • N. V. K. App•al dismissed. • ..
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