RIGHT TO PRIVATE DEFENCE

CASE- MAHAVIR CHOUDHARY VS STATE OF BIHAR; 1996 SCC 107

The right of private defence is a high-priced gift granted to the citizens to protect themselves
by effective self-resistance against unlawful aggression. It is the primary duty of the state to
protect the life and property of the subjects. But no state, no matter how large its resources
can, can afford to depute a policeman to watch the steps of every rogue in the country.

FACTS- A water stream flowed northwards reaching up to village X. Accused appellants are
inhabitants of village X. All the deceased hailed from a village Y which is situated a little
north of village X. As there was acute drought condition, people of village Y needed water.
The three deceased visited village X on the eve of the occurrence and cut open a bund that
blocked the water flowing further north. This act of the deceased persons was questioned by
some of the accused persons, but their protestation was not headed to by the deceased. One
morning situation further deteriorated with an exchange of words between the two parties
when those hailing’s from village Y forcefully resisted the attempt of the accused-appellants
to restore the bond. All the appellants gathered up with guns, lathis, etc. The 4 appellants
used guns to fire down one or the other of the three deceased and consequently the disease
died of gunshot injuries. The remaining persons who came from the village Y retreated and
fled from the scene. The trial court found the four persons with firearms had exceeded their
right of private defence and convicted them under section 304 Part 1 of the Indian Penal
Code. However, in the High Court’s decision, there was a reversal of fortune for all the
arraigned persons as all of them were found guilty under section 302 read with section 149 of
the Indian Penal Code.

ISSUE- Whether the High Court was right in denying the initial right of private defence to
these accused-appellants?
LAWS RELATED-

1. Section 103- Deals with the right of private defence as against an act which might be
mischief or theft or criminal trespass, conditions that there should be reasonable apprehension
that death or grievous hurt would otherwise be the consequence.

ARGUMENTS-

ACCUSED-

 The deceased committed mischief by cutting open the bund to block the water flow.
 If a man's property is in imminent danger of being impaired or attacked, he has the
right to resort to such measures as would be reasonably necessary to thwart the attempt
to protect his property.

COMPLAINANT-

 The four persons who used firearms had exceeded their right to private defence.
 There was no reasonable apprehension that death or grievous hurt would otherwise be
the consequence of the act of the deceased.

CONCLUSION-

 When the acts of people of village Y amounted to mischief, the accused-appellants

had a right of private defence to thwart the same. In the course of the exercise of such
right the appellants who gunned down the mischief-makers have acted far in access of
the right of private defence.
 Nonetheless the first degree of the right of private defence cannot be denied to them.
The High Court was in error in holding that the balance had no right of private
defence at any stage.
 The trial court was correct in its approach regarding that aspect of the matter. Thus,
the conviction and sentence passed by the Sessions Court will stand.
SEE MORE-

 State of UP vs Ram Swarup

 Kishan vs the State of MP