MANU/SC/0343/2019

Equivalent Citation: AIR2019SC 1389, 2019 (108) AC C 22, 2019 (1) ALT (C rl.) 293 (A.P.), 2019(2)BomC R(C ri)83, 128(2019)C LT52,
2019C riLJ2242, 2019(2)JC C 1405, 2020-1-LW(C rl)597, 2019(2)MLJ(C rl)90, 2019(2)N.C .C .162, 2019(2)RC R(C riminal)325, 2019(4)SC ALE490,
(2019)15SC C 117, 2019 (6) SC J 55

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 5 of 2009
Decided On: 07.03.2019
Appellants: Sukumaran
Vs.
Respondent: State
Hon'ble Judges/Coram:
Abhay Manohar Sapre and R. Subhash Reddy, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: A. Raja Rajan, Sabarish Subramanian, Y. William
Vinoth Kumar, R. Pandiarajan and Deepak Anand, Advs.
For Respondents/Defendant: Balaji Srinivasan, AAG, B. Vinodh Kanna, S. Valarmathi,
Pallavi Sengupta and M. Yogesh Kanna, Advs.
Case Category:
CRIMINAL MATTERS - CRIMINAL MATTERS IN WHICH SENTENCE AWARDED IS UPTO
FIVE YEARS
Case Note:
Criminal - Conviction - Right of private defence - Sections 96, 97, 302, 109,
203 and 304 part II of Indian Penal Code, 1860 (IPC), Sections 36-A and E
of Tamil Nadu Forest Act, 1882, Sections 3 and 25 (1-B) (a) of Arms Act,
1959 and Section 315 of Code of Criminal Procedure, 1973 (CrPC) - Present
appeal was filed against final judgment passed by High Court whereby
Division Bench of High Court partly allowed appeal filed by Appellant herein
- Whether prosecution was able to prove beyond reasonable doubt that,
Appellant was guilty for commission of offence punishable under Section
304 part II of IPC - Whether right of private defence was available and, if
so, whether it was rightly exercised or exceeded. Facts: Appellant (A-1)
along with co-accused- (A-2) were tried for commission of offences
punishable under Section 302 read with Sections 109 and 203 of IPC,
Section 36-A and E of Act, 1882 and Section 3 read with Section 25 (1-B)
(a) of Arms Act in Court of Additional Sessions Judge. By Judgment/order,
Additional Sessions Judge convicted Appellant herein (A-1) for offences
punishable under Sections 302 and 203 of IPC, Section 36-A and E of Act
and Section 3 read with Section 25(1-B)(a) of Arms Act and sentenced him
to undergo life imprisonment with a fine of Rs. 2000. All awarded
sentences were to run concurrently. So far as Co-accused- (A-2) was
concerned, he was acquitted from all the charges. Appellant (A-1) filed
criminal appeal in High Court. High Court, by impugned order, allowed
appeal in part and while setting aside conviction and sentence imposed on
Appellant under Section 302 of IPC altered it to Section 304 Part-II of IPC

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 and sentenced him to undergo rigorous imprisonment for five years with a
fine amount of Rs. 2000 and in default of payment of fine, to further
undergo rigorous imprisonment for three months. Appellant was, however,
acquitted from offence punishable under Section 36-A and E of Act and was
also acquitted from the offence punishable under Section 25 (1-B) (a) of
Arms Act. However, High Court did not consider case of Appellant so far as
his conviction under Section 203 of IPC concerned. Held, while allowing the
appeal 1. Prosecution was not able to prove manner in which incident
occurred as alleged by them in their charge sheet. In this view of matter,
Appellant was entitled to be acquitted from charges for want of any
evidence against him. [28] 2. Appellant, in order to prove his defence,
examined himself as DW-1 after seeking permission under Section 315 of
CrPC, it was necessary to examine question as to whether Appellant was
able to prove his defence. [29] 3. Appellant, in substance, took a defence
that, he fired a gun shot on deceased party in his right of private defence.
[30] 4. Section 96 of IPC provided that, nothing was an offence, which was
done in exercise of right of private defence. [32] 5. Section 97 of IPC
provided that, a right of private defence extended not only to defence of
one's own body against any offence affecting human body but also to
defend body of any other person. Right also embraced protection of
property, whether one's own or another person's, against certain specified
offences, namely, theft, robbery, mischief and criminal trespass. Limitations
on this right and its scope were set out in Sections which follow. For one
thing, right did not arose, if there was time to have recourse to protection
of public authorities, and for another, it did not extend to infliction of more
harm than was necessary for purpose of defence. Another limitation was
that when death was caused, person exercising right must be under
reasonable apprehension of death, or grievous hurt, to himself or to those
whom he was protecting; and in case of property, danger to it must be of
kinds specified in Section 103. [33] 6. There was a variation in prosecution
version and Appellant's version on manner in which incident in question
occurred. However, having perused FIR lodged by Appellant and his
evidence as DW-1, version of Appellant on manner in which incident
occurred was accepted. [37] 7. In view of manner in which incident
occurred, Appellant, was entitled to exercise his right of private defence
against deceased party as it was established on basis of factual scenario on
spot that, Appellant had reasonable grounds for apprehending that either
death or grievous hurt would be caused to him or to his driver (A-2). [38] 8.
High Court failed to appreciate that firstly, Appellant had every reason to
believe that due to suspicious moment of deceased party in the forest, they
were trying to smuggle sandal wood from the forest. Secondly, deceased
party was aggressor because, they first pelted stones and damaged
Appellant's vehicle shouting "fire them". Thirdly, Appellant's duty was to
apprehend culprits who were involved in activity of smuggling sandalwoods
and at same time to protect himself and his driver in case of any
eventuality arising while apprehending culprits. [43] 9. Firing gun shot by
Appellant towards deceased party could not be said to be in any way
unjustified. In fact, Appellant while firing gun shot did not target any
particular person out of four as such but fired to resist their aggression
towards him and his driver. If Appellant had not fired, deceased party
having said "fire them" could either use their gun in shooting Appellant or
A-2 or would have run away from spot to avoid their arrest. It was not in

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 dispute that, one gun was seized from deceased party on their arrest which
was deposited by Appellant along with his own gun in police station while
registering FIR. [44] 10. Prosecution having failed to prove their case could
still prove that, Appellant was liable to be convicted in light of defence
version. High Court, therefore, could have gone into question as to whether
Appellant had no right of private defence against the deceased party on
such facts or whether he exceeded his right. Prosecution even failed to
prove this fact while cross examining Appellant. [45] 11. Case of Appellant
satisfied test laid down in case of Amjad Khan and also satisfied test laid
down in Clauses (ii), (iii), (iv), (v) and (viii) of Darshan Singh. It was a case
where Appellant had a reasonable apprehension that, deceased party might
cause him and A-2 death or grievous hurt either by pelting stones or by use
of gun shot or by physical violence jointly. In these circumstances,
Appellant being a forest ranger on duty was entitled to use his gun against
deceased party. [46] 12. Additional Sessions Judge was not justified in
convicting Appellant for an offence of murder of Basha under Section 302 of
IPC. Similarly, High Court was also not justified in convicting Appellant for
an offence punishable under Section 304 Part II of IPC. Appellant was
entitled for an acquittal along with A-2 from charges framed against him.
[4 7 ] 13. So far as Appellant's conviction under Section 203 of IPC was
concerned, High Court did not deal with this question in impugned order
though it was challenged by Appellant in his appeal. Conviction under
Section 203 of IPC against Appellant was also not legally sustainable for
want of any evidence adduced by prosecution. [48] 14. Once it was held
that, prosecution had failed to prove their main case, offence under Section
203 of IPC also must fail. Appellant was justified in taking a plea of self
defence against deceased party which he was also able to prove with aid of
evidence. In any event, in absence of any evidence as to from where
Appellant got 64 billets of sandal woods for loading in lorry of deceased
party and gun, an offence under Section 203 of IPC could not be held as
made out against the Appellant. [49] 14. Impugned order was set aside.
Appeal allowed. [50]
JUDGMENT
Abhay Manohar Sapre, J.
1. This appeal is filed against the final judgment and order dated 12.06.2008 passed
by the High Court of Judicature at Madras in Criminal Appeal No. 513 of 2006
whereby the Division Bench of the High Court partly allowed the appeal filed by the
Appellant herein.
2. In order to appreciate the issues involved in this appeal, it is necessary to set out
the facts infra.
3. The Appellant herein (A-1) along with co-accused-Chinnakolandai (A-2) were tried
for the commission of the offences punishable Under Section 302 read with Sections
109 and 203 of the Indian Penal Code, 1860 (hereinafter referred to as "IPC"),
Section 36-A and E of the Tamil Nadu Forest Act, 1882 and Section 3 read with
Section 25 (1-B) (a) of the Arms Act in the Court of Additional Sessions Judge,
Dharmapuri in Session Case No. 342/2004.
4. By Judgment/order dated 17.05.2006, the Additional Sessions Judge convicted the

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 Appellant herein (A-1) for the offences punishable Under Sections 302 and 203
Indian Penal Code, Section 36-A and E of the Tamil Nadu Forest Act and Section 3
read with Section 25(1-B)(a) of the Arms Act and sentenced him to undergo life
imprisonment with a fine of Rs. 2000/- and in default of payment of fine to further
undergo rigorous imprisonment for three months Under Section 302 Indian Penal
Code, to undergo rigorous imprisonment for two years with a fine of Rs. 500/-, in
default of payment of fine to undergo further simple imprisonment for three months
Under Section 203 Indian Penal Code, to undergo rigorous imprisonment for two
years with fine of Rs. 7,500/-, in default of payment of fine, to undergo further
simple imprisonment for three months Under Section 36-A and E of the Tamil Nadu
Forest Act, to undergo imprisonment for two years with a fine of Rs. 500/- in default
of payment of fine to further undergo simple imprisonment for three months Under
Section 3 read with Section 25 (1-B)(a) of the Arms Act.
5 . All the awarded sentences were to run concurrently. So far as Co-accused-
Chinnakolandai (A-2) is concerned, he was acquitted from all the charges.
6. The Appellant (A-1) felt aggrieved by the order of conviction and sentence passed
against him and filed criminal appeal in the High Court of Judicature at Madras. So
far as the order acquitting co-accused-Chinnakonlandai (A-2) was concerned, the
State did not file any appeal against that part of the order and hence the order of
acquittal of co-accused-Chinnakolandai (A-2) became final.
7 . The High Court, by the impugned order, allowed the appeal in part and while
setting aside the conviction and sentence imposed on the Appellant Under Section
302 Indian Penal Code altered it to Section 304 Part-II Indian Penal Code and
sentenced him to undergo rigorous imprisonment for five years with a fine amount of
R s . 2000/- and in default of payment of fine, to further undergo rigorous
imprisonment for three months. The Appellant was, however, acquitted from the
offence punishable Under Section 36-A and E of the Tamil Nadu Forest Act and was
also acquitted from the offence punishable Under Section 25 (1-B) (a) of the Arms
Act. However, the High Court did not consider the case of the Appellant so far as his
conviction Under Section 203 Indian Penal Code is concerned. The State has not filed
any appeal against that part of the order by which the Appellant was acquitted from
the charges as detailed above.
8 . So, the short question, which arises for consideration in this appeal, is whether
the High Court was justified in convicting the Appellant Under Section 304 Part-II
Indian Penal Code and was, therefore, justified in awarding rigorous imprisonment
for five years.
9 . In other words, the question to be considered in this appeal is whether the
prosecution was able to prove beyond reasonable doubt that the Appellant was guilty
for commission of the offence punishable Under Section 304 part II of Indian Penal
Code.
10. In order to answer this question, it is necessary to take note of the prosecution
case in brief infra.
11. The Appellant (A-1) was working as Forest Range Officer in State Services. He
was posted in Dharmapuri forest area in the State of Tamil Nadu.
12. According to the prosecution, on 05.06.1988 at around 6.30 a.m., the Appellant
while on duty was going in his official jeep bearing Registration No. TNC 9206 along

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 with co-accused (A-2)- driver of his Jeep to Pennagaram Main Road from Kattampatti
Road. At that time, the Appellant noticed that four persons, namely, Basha-the
deceased, Chan Basha (PW-1), Ganesha (PW-2) and one cleaner were going in a lorry
bearing No. ADA 4869. On seeing the lorry, the Appellant chased it upto some
distance. However, Basha-the driver of the lorry drove it for some distance and then
stopped, got down from the lorry and started running with his associates. The
Appellant, at that time, fired a gun shot from his DBL-Gun, which hit Basha s/o
Ameer causing his death.
13. On these allegations, the prosecution prayed that the Appellant is liable to be
prosecuted for an offence punishable Under Section 302 Indian Penal Code.
14. It is also the case of the prosecution that the lorry, which the deceased-Basha
was driving, was empty. However, the Appellant, after he shot Basha from his gun
which hit on his back, got down from his jeep and then loaded 64 billets of sandal
woods weighing 276 KG and also kept one SBML Gun in the lorry with a view to
show that the deceased party was smuggling sandal woods from the forest area
without holding a valid permit/license. It is also the case of prosecution that the
Appellant with the help of co-accused (A-2)-Driver then reached to deceased party,
caught hold of PW-1 and PW-2 and brought them to the police station. Another
person Jaheer, however, managed to flee from the place.
15. It is also the case of the prosecution that the Appellant intentionally gave the
false information by lodging a complaint in the Police Station, Pennagaram on
05.06.1988 stating therein that he fired the gun shot to Basha in his right of private
defence.
1 6 . On these allegations, the prosecution prayed that the Appellant be also
prosecuted for an offence punishable Under Section 203 Indian Penal Code. The
investigation was accordingly carried out. The statements of the witnesses were
recorded, material items were seized and later the Appellant and co-accused (A-2)
were apprehended. The charge-sheet was accordingly filed against them and the case
was committed to the Court of Additional Sessions Judge.
17. The prosecution, in support of their case, examined 16 witnesses and filed 23
documents. 15 MOs were marked. The Appellant (A-1) appeared as DW-1 to prove
his case. His statement Under Section 313 of the Code of Criminal Procedure was also
recorded.
18. The Additional Sessions Judge convicted the Appellant (A-1) Under Sections 302,
203 Indian Penal Code and Section 36-A and E of Tamil Nadu Forest Act read with
Sections 3 and 25 (1-B) (a) of the Arms Act. The Appellant was accordingly awarded
sentence as mentioned above. So far as co-accused (A-2) is concerned, he was
acquitted from all the charges.
19. The Appellant felt aggrieved and filed appeal in the High Court of Madras. The
High Court, by impugned order, set aside the conviction and sentence imposed on the
Appellant herein Under Section 302 Indian Penal Code and altered it to Section 304
Part II Indian Penal Code and accordingly awarded him 5 years' RI. As mentioned
above, the Appellant was acquitted from all other charges. However, the High Court
did not consider the legality and correctness of the conviction Under Section 203
Indian Penal Code, though impugned by the Appellant in his appeal.
20. It is against this order, the Appellant (Accused-A-1) has felt aggrieved and filed

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 the present appeal by way of special leave in this Court.
21. Heard Mr. A. Raja Rajan, learned Counsel for the Appellant (Accused) and Mr.
Balaji Srinivasan, learned Counsel for the Respondent-State.
22. Having heard the learned Counsel for the parties and on perusal of the record of
the case, we are inclined to allow the appeal, set aside the impugned order and
acquit the Appellant from all the charges for the reasons stated infra.
23. We find that the prosecution in order to prove their case against the Appellant
had examined 16 witnesses. We also find that out of 16 witnesses, the prosecution
examined 2 witnesses, namely, (PW-1-John Basha and PW-2 - Ganesh) as
eyewitnesses to prove the incident and the manner in which it occurred. Indeed, the
two Courts below also relied on their evidence for sustaining the Appellant's
conviction.
2 4 . It is not in dispute, as is clear from the perusal of Paras 18 and 19 of the
judgment of the Additional Sessions Judge dated 17.05.2006 and also para 2(a) to
(d) of the impugned order that both the eye witnesses, i.e., PW-1, PW-2 and also
PW-3 and PW-7 were declared hostile.
25. In our considered opinion, when both the eye witnesses-PWs 1 and 2 and also
other two more witnesses, namely, PW-3 and PW-7 were declared hostile, there was
no evidence to prove as to how and in what manner, the incident in question had
occurred. In other words, apart from the evidence of PW-1 and PW-2, the prosecution
had not led any evidence to prove the incident and the manner in which the alleged
incident had occurred.
26. Even on perusal of the evidence of PW-1, PW-2, PW-3 and PW-7 to the extent it
is permissible in law because these four witnesses had turned hostile coupled with
perusal of the evidence of remaining witnesses with a view to find out as to whether
the prosecution was able to prove their case against the Appellant beyond reasonable
doubt, we find it difficult to hold in favour of the prosecution that the prosecution
was successful in proving their case as was required to be proved in law against the
Accused (Appellant herein).
27. Indeed, perusal of the evidence of remaining witnesses, who were not declared
hostile, clearly shows that their evidence was not on the question as to how and in
what manner, the incident occurred. We find their evidence to be on the issues, such
as proving of seizer, post-mortem report, ballistic report etc. etc.
28. In the light of the foregoing discussion, we are of the view that the prosecution
was not able to prove the manner in which the incident occurred as alleged by them
in their charge sheet. In this view of the matter, the Appellant was entitled to be
acquitted from the charges for want of any evidence against him.
29. Be that as it may, since the Appellant, in order to prove his defence, examined
himself as DW-1 after seeking permission Under Section 315 of the Code of Criminal
Procedure, it is necessary to examine the question as to whether the Appellant was
able to prove his defence.
3 0 . The Appellant, in substance, took a defence that he fired a gun shot on the
deceased party in his right of private defence.

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 31. Before we examine this question, it is apposite to take note of the law relating to
a right of private defence.
32. Sections 96 to 106 of Indian Penal Code deal with right of private defence of a
person involved in commission of offences under the Indian Penal Code. Section 96
of Indian Penal Code says that nothing is an offence, which is done in the exercise of
the right of private defence.
33. Section 97 of Indian Penal Code provides that a right of private defence extends
not only to the defence of one's own body against any offence affecting the human
body but also to defend the body of any other person. The right also embraces the
protection of property, whether one's own or another person's, against certain
specified offences, namely, theft, robbery, mischief and criminal trespass. The
limitations on this right and its scope are set out in the Sections which follow. For
one thing, the right does not arise if there is time to have recourse to the protection
of the public authorities, and for another, it does not extend to the infliction of more
harm than is necessary for the purpose of defence. Another limitation is that when
death is caused, the person exercising the right must be under reasonable
apprehension of death, or grievous hurt, to himself or to those whom he is
protecting; and in the case of property, the danger to it must be of the kinds
specified in Section 103. The scope of the right is further explained in Sections 102
and 105 of the Indian Penal Code. (See observations of Justice Vivian Bose in Amjad
Khan v. Haji Mohammad Khan AIR 1952 SC 165)
34. This Court also examined this question in the case of Darshan Singh v. State
of Punjab and Anr. MANU/SC/0044/2010 : (2010) 2 SCC 333 and laid down the
following 10 principles after analyzing Sections 96 to 106 Indian Penal Code which
read as under:
(i) Self-preservation is the basic human instinct and is duly
recognised by the criminal jurisprudence of all civilised countries. All
free, democratic and civilised countries recognise the right of private
defence within certain reasonable limits.
(ii) The right of private defence is available only to one who is
suddenly confronted with the necessity of averting an impending
danger and not of self-creation.
(iii) A mere reasonable apprehension is enough to put the right of
self-defence into operation. In other words, it is not necessary that
there should be an actual commission of the offence in order to give
rise to the right of private defence. It is enough if the Accused
apprehended that such an offence is contemplated and it is likely to
be committed if the right of private defence is not exercised.
(iv) The right of private defence commences as soon as a reasonable
apprehension arises and it is coterminous with the duration of such
apprehension.
(v) It is unrealistic to expect a person under assault to modulate his
defence step by step with any arithmetical exactitude.
(vi) In private defence the force used by the Accused ought not to
be wholly disproportionate or much greater than necessary for

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 protection of the person or property.
(vii) It is well settled that even if the Accused does not plead self-
defence, it is open to consider such a plea if the same arises from
the material on record.
(viii) The Accused need not prove the existence of the right of
private defence beyond reasonable doubt.
(ix) The Penal Code confers the right of private defence only when
that unlawful or wrongful act is an offence.
(x) A person who is in imminent and reasonable danger of losing his
life or limb may in exercise of self-defence inflict any harm even
extending to death on his assailant either when the assault is
attempted or directly threatened.
35. In the light of the principle of law laid down by this Court in the aforementioned
two cases, we have to examine the question as to whether the Appellant (A-1) was
justified in exercising his right of private defence when he fired a gun shot on the
deceased party.
36. At this stage, it is apposite to reproduce the FIR (Ex-P-9), which was lodged by
the Appellant immediately after the incident with Sub-inspector, Police Station
Pennagaram. It reads as under:
EXHIBIT P 9
EXPRESS FIRST INFORMATION REPORT
B 785612
(FIRST INFORMATION REPORT IN RESPECT
OF OFFENCE FOR WHICH AN ARREST
COULD BE MADE BY THE OFFICER
INCHARGE OF THE POLICE STATION WITH
OUT THE ORDER OF THE COURT UNDER
SECTION 184 OF THE CRIMINAL
PROCEDURE CODE)
Crime No. 108/88
Police station: Pennagaram
Section and Act: 302 Indian Penal Code
Circle: Pennagaram
District Dharmapuri
I received copy of the complaint lodged by me free of cost.
Signature/
5.6.88
Submitted
Today the 5.6.88, Sunday at about 11.00 o'clock in the morning, Mr.
S. Sukumar, Dharmapuri forest ranger appeared in the police station
and lodged the complaint. The details of the complaint is as under:
S. Sukumaran, Forest ranger, Dharmapuri

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 To
Sub inspector of police, Police Station, Pennagaram
Application number 1/88 dt. 5.6.88, Sir, On the basis of the
information about the smuggling of sandal wood logs, I left
Dharmapuri in a jeep along with my driver Mr. Chinnakulanthai on
the evening at about 6.00 o'clock of 4.6.1988 in a jeep with
registration number TND 2296 and reached Pennagaram.
Throughout the night we inspected Nazanoor area. We completed
the inspection at about 5.00 o'clock in the morning and left the
place. Near Vanathipaty, that is we reached near Kattampatty road,
Kattampatty junction road, we saw a lorry coming in the
Kattampatty road. We stopped the lorry signaled the lorry to stop.
Driver of the lorry turned the lorry to left. Engine of the lorry
stopped We started to move towards the lorry. Persons in the lorry
got down and started attacking us with stones. Glass pane of the
lorry was broken. Immediately, they shouted that "you shoot them".
It was about 6.30 'o'clock in the morning. Then the deceased person
has taken out a gun. I started early and I fired a gun shot one round
in self defense. He dropped the gun and fell down. Thereafter, I
apprehended other two persons 1. John Basha and 2. Ganesan.
Cleaner Zaheer escaped. When we went to see the above mentioned
driver we found him dead due gun shot wounds. I am now handing
over the country made gun which was in his possession and the gun
with which I fired DBG 12 load (?) AB 8202321, empty cartridge and
two other cartridges to you. I request you to take action on this. Sd.
(S. Sukumaran), 5.6.88, Forest ranger, Darmapuri.
On the basis of the above mentioned I registered the complaint as
crime number 18/88 of the police station Under Section 302 of the
Indian Penal Code and prepared the express FIR and sent to the
senior officer.
Sd.
5.6.88
37. Reading the contents of the FIR (Ex-P-9) coupled with the Appellant's evidence
(DW-1), we find that firstly, there is a variation in the prosecution version and the
Appellant's version on the manner in which the incident in question occurred.
However, having perused the FIR (Ex. P-9) lodged by the Appellant and his evidence
as DW-1, we are inclined to accept the version of the Appellant on the manner in
which the incident occurred.
38. In other words, having regard to the manner in which the incident occurred, the
Appellant, in our view, was entitled to exercise his right of private defence against
the deceased party inasmuch as it was established on the basis of the factual scenario
on the spot that the Appellant had reasonable grounds for apprehending that either
death or grievous hurt would be caused to him or to his driver (A-2). It is clear from
the following facts and the reasoning detailed infra.
39. First, when the incident occurred in the early morning at around 6.30 a.m., the
Appellant was patrolling in the forest in official vehicle with his driver (A-2) since
overnight; Second, by virtue of his post, he was given Jeep and the gun for the

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 protection of forest area, forest produce, his own body and the body of others on
duty with him; Third, the deceased party having seen that the Appellant was chasing
their lorry made attempt to flee from the place in the first instance but after some
time stopped and got down from their lorry and started pelting stones on the
Appellant's jeep which suffered damage; Fourth, the deceased party consisted of four
persons with weapon-Gun with them whereas the Appellant and his driver (A-2) were
two.
40. Fifth, there is no evidence to show as to why the deceased party was roaming in
the forest area in their lorry in such early hours. Sixth, it is not in dispute that the
forest in question is known for producing sandal woods and sandal wood being an
expensive commodity for sale in the market, the people were indulging in its
smuggling at a large scale in the forest area; Seventh, the Appellant had noticed that
the deceased party was trying to become aggressor in an encounter between him and
the deceased party because the deceased party had started pelting stones on them so
that the Appellant is not able to apprehend them. Eighth, the deceased party not only
was pelting the stones but also shouting "fire them". Ninth, the Appellant, in such
scenario, had rightly formed a reasonable apprehension that either death or grievous
hurt may cause to him or/and to his driver (A-2). Tenth, in these circumstances, it
was enough for the Appellant to also react in his self defence against the deceased
party and fire from his gun towards the deceased party to save him and his driver (A-
2); Eleventh, the Appellant having seen the suspicious moments of the deceased
party in the forest area rightly formed an opinion that the deceased party was moving
around in the forest to smuggle the sandal woods. The Appellant was, therefore,
entitled to chase the deceased party and apprehend them for being prosecuted for
commission of offence punishable under the forest laws. Indeed, that was his duty;
Twelfth, there was no motive attributed to the Appellant towards any member of the
deceased party; Thirteenth, the Appellant and A-2 rightly caught hold of PWs 1 and 2
and brought them to the police station; and lastly, the Appellant promptly filed a
complaint (Ex. P-8/9) in the police station narrating therein the entire incident and
the manner in which it occurred and also surrendered the gun recovered from the
deceased party and his own gun.
41. One of the reasons which persuaded the High Court to form an opinion against
the Appellant was that the bullet fired by the Appellant hit the deceased in his back.
It is on this basis, the High Court concluded that there was no justification on the
part of the Appellant to exercise his right of private defence.
42. We do not agree. This finding of the High Court was based on the prosecution
story which we have held that the prosecution failed to prove for want of evidence. In
any case, in our view, the question as to whether the right of private defence is
available and, if so, whether it is rightly exercised or exceeded, the same is required
to be examined keeping in view the entire background facts and circumstances in
which the incident occurred resulting in firing the gun shot.
43. The High Court, in our view, failed to appreciate that firstly, the Appellant had
every reason to believe that due to suspicious moment of the deceased party in the
forest, they were trying to smuggle the sandal wood from the forest. Secondly, the
deceased party was aggressor because, as held above, they first pelted the stones
and damaged the Appellant's vehicle shouting "fire them". Thirdly, the Appellant's
duty was to apprehend the culprits who were involved in the activity of smuggling
sandalwoods and at the same time to protect himself and his driver in case of any
eventuality arising while apprehending the culprits.

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 44. Having seen the incident in this perspective, we are of the opinion that firing the
gun shot by the Appellant towards the deceased party cannot be said to be in any
way unjustified. In fact, the Appellant while firing the gun shot did not target any
particular person out of four as such but fired to resist their aggression towards him
and his driver (A2). If the Appellant had not fired, the deceased party having said
"fire them" could either use their gun in shooting the Appellant or A-2 or would have
run away from the spot to avoid their arrest. It is not in dispute that one gun was
seized from the deceased party on their arrest which was deposited by the Appellant
along with his own gun in the police station while registering the FIR (EX. P-9).
45. In our considered opinion, the prosecution having failed to prove their case could
still prove that the Appellant was liable to be convicted in the light of defence
version. The High Court, therefore, could have gone into the question as to whether
the Appellant had no right of private defence against the deceased party on such facts
or whether he exceeded his right. The prosecution even failed to prove this fact while
cross examining the Appellant. We find that nothing could be solicited from the
Appellant in his cross-examination on these two issues.
46. In the light of foregoing discussion, we are of the considered opinion that the
case of the Appellant satisfies the test laid down in the case of Amjad Khan (supra)
and also satisfied the test laid down in Clauses (ii), (iii), (iv), (v) and (viii) of
Darshan Singh (supra). In other words, it was a case where the Appellant had a
reasonable apprehension that the deceased party may cause him and A-2 death or
grievous hurt either by pelting stones or by use of gun shot or by physical violence
jointly. In these circumstances, the Appellant being a forest ranger on duty was
entitled to use his gun against the deceased party.
47. In view of the foregoing discussion, we are of the considered opinion that the
Additional Sessions Judge was not justified in convicting the Appellant for an offence
of murder of Basha Under Section 302 Indian Penal Code. Similarly, the High Court
was also not justified in convicting the Appellant for an offence punishable Under
Section 304 Part II Indian Penal Code. In other words, in our view, the Appellant was
entitled for an acquittal along with A-2 from the charges framed against him.
4 8 . So far as the Appellant's conviction Under Section 203 Indian Penal Code is
concerned, the High Court did not deal with this question in the impugned order
though it was challenged by the Appellant in his appeal. Having examined this
question, we are of the view that the conviction Under Section 203 Indian Penal Code
against the Appellant is also not legally sustainable for want of any evidence adduced
by the prosecution.
49. As a matter of fact, once it is held that the prosecution has failed to prove their
main case, the offence Under Section 203 Indian Penal Code also must fail. It is also
for the reason because we have held that the Appellant was justified in taking a plea
of self defence against the deceased party which he was also able to prove with the
aid of evidence. In any event, in the absence of any evidence as to from where the
Appellant got 64 billets of sandal woods for loading in the lorry of the deceased party
and the gun, an offence Under Section 203 Indian Penal Code cannot be held as made
out against the Appellant.
5 0 . In view of the foregoing discussion, the appeal succeeds and is accordingly
allowed. The impugned order is set aside. As a consequence, the Appellant is
acquitted from all the charges. His bail bonds are discharged and he is set free.

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