ION Criminal Appeal No 32 of 1958
Appeal by special leave from the judgment and order dated April 25 1957 of the Allahabad High Court in Criminal Appeal No 992 of 1954 arising out of the judgment and order dated January 25 1954 of the Additional Sessions Judge Gorakhpur in Sessions Trial No 71 of 1953
section P Sinha and section D Sekhri for the appellant
G C Mathur and C P Lal for G N Dikshit for the respondent
September 3
The Judgment of the Court was delivered by WANCHOO J
This is an appeal by special leave against the judgment of the Allahabad High Court in a criminal matter
The facts of the case as found by the High Court are no longer in dispute and the 648 question that is raised in this appeal is whether the appellant had exceeded the right of private defence of person
The relevant facts for our purposes are these
Gopal deceased was married to the sister of the appellant
The appellant and his father Badri were living in a railway quarter at Gorakhpur
Gopal s sister was married to one Banarsi who was also living in another railway quarter nearby
Gopal had been living for some time with his father in law
They did not however pull on well together and Gopal shifted to the house of Banarsi
Badri persuaded Gopal to come back to his house but the relations remained strained and eventually Gopal shifted again to the quarter of Banarsi about 15 days before the present occurrence which took place on June 11 1953 at about 10 pm Gopal s wife had continued to live with her father as she was unwilling to go with Gopal
Her father Badri and her brother Vishwanath appellant sided with her and refused to let her go with Gopal
Gopal also suspected that she had been carrying on with one Moti who used to visit Badri s quarter
Consequently Gopal was keen to take away his wife the more so as he had got a job in the local department some months before and wanted to lead an independent life
On June 11 there was some quarrel between the appellant and Gopal about the girl but nothing untoward happened then and the appellant went back to his quarter and Gopal went away to Bansari s quarter
Gopal asked Banarsi s sons to help him in bringing back his wife
Banarsi also arrived and then all four of them went to Badri s quarter to bring back the girl
On reaching the place Banarsi and his two sons stood outside while Gopal went in
In the meantime Badri came out and was asked by Banarsi to let the girl go with her husband
Badri was not agreeable to it and asked Banarsi not to interfere in other people s affairs
While Badri and Banarsi were talking Gopal came out of the quarter dragging his reluctant wife behind him
The girl caught hold of the door as she was being taken out and a tug of war followed between her and Gopal
The appellant was also there and shouted to his father 649 that Gopal was adamant
Badri thereupon replied that if Gopal was adamant he should be beaten tomaro
On this the appellant took out a knife from his pocket and stabbed Gopal once
The knife penetrated into the heart and Gopal fell down senseless
Steps were taken to revive Gopal but without success
Thereupon Gopal was taken to the hospital by Badri and the appellant and Banarsi and his sons and some others but Gopal died by the time they reached the hospital
On these facts the Sessions Judge was of opinion that Badri who had merely asked the appellant to beat Gopal could not have realised that the appellant would take out a knife from his pocket and stab Gopal
Badri was therefore acquitted of abetment
The Sessions Judge was further of opinion that the appellant had the right of private defence of person and that this right extended even to the causing of death as it arose on account of an assault on his sister which was with intent to abduct her
He was further of opinion that more harm than the circumstances of the case required was not caused and therefore the appellant was also acquitted
The State then appealed to the High Court against the acquittal of both accused
The High Court upheld the acquittal of Badri
The acquittal of the appellant was set aside on the ground that the case was not covered by the fifth clause of section 100 and the right of private defence of person in this case did not extend to the voluntary causing of death to the assailant and therefore it was exceeded
The High Court relied on an earlier decision of its own in Emperor vs Ram Saiya 1
The appellant was therefore convicted under section 304 Part 11 of the Penal code and sentenced to three years  rigorous imprisonment
He applied for a certificate to enable him to appeal to this Court but this was refused
Thereupon he applied to this Court for special leave which was granted and that is how the matter has come up before us
The main question therefore that falls for consideration in this appeal is whether the decision in Ram 1 ILR 1948 All
650 Saiya s case 1 is correct
It appears that four other high Courts have taken a view which is different on that taken in Ram Saiya s case 1  namely Jagat singh vs King Emperor 2 Daroga Lokar vs Emperor Lohar vs The State 4 and Dayaram Laxman vs State here is however no discussion of the point in these our cases and we need not refer to them further
the view taken in Ram Saiya s case 1 is that the lord  abducting  used in the fifth clause of section 100 of the Penal Code refers to such abducting as is an offence under that Code and not merely to the act of abduction as defined in section 362 thereof
Mere abduction is not an offence and therefore cannot give rise of any right of private defence and the extended right of private defence given by section 100 only arises if the offence which occasions the exercise of the right is of the Of the kinds mentioned in section 100
Section 97 gives the right of private defence of person against any offence affecting the human body
Section 99 lays down that the right of private defence a no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence
Section 100 with which we are concerned is in these terms  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 ILR 1948 All
3 AI R 1930 Pat
347 2
2 AIR 1923 Lab
155 1
4 1 5 A 1
R 1953 Madhya Bharat 182
651 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 right of private defence of person only arises if there is an offence affecting the human body
Offences affecting the human body are to be found in Ch
XVI from section 299 to section 377 of the Penal Code and include offences in the nature of use of criminal force and assault
Abduction is also in Ch
XVI and is defined in section 362
Abduction takes place whenever a person by force compels or by any deceitful means induces another person to go from any place
But abduction pure and simple is not an offence under the Penal Code
Only abduction with certain intent is punishable as an offence
If the intention is that the person abducted may be murdered or so disposed of as to be put in danger of being murdered section 364 applies
If the intention is to cause secret and wrongful confinement section 365 applies
If the abducted person is a woman and the intention is that she may be compelled or is likely to be compelled to marry any person against her will or may be forced or seduced to illicit intercourse or is likely to be so forced or seduced section 366 applies
If the intention is to cause grievous hurt or so dispose of the person abducted as to put him in danger of being subjected to grievous hurt or slavery or the unnatural lust of any person section 367 applies
If the abducted person is a child under the age of ten and the intention is to take dishonestly any movable property from its person section 369 applies
It is said that unless an offence under one of these sections is likely to be committed the fifth clause of section 100 can have no application
On a plain reading however of that clause there does not seem to be any reason for holding that the word  abducting  used there means anything more than what is defined as  abduction  in section 362
652 It is true that the right of private defence of person arises only if an offence against the human body is committed
Section 100 gives an extended right of private defence of person in cases where
the offence which occasions the exercise of the right is of any of the descriptions enumerated therein
Each of the six clauses of section 100 talks of an assault and assault is an offence against the human body see section 352
So before the extended right under section 100 arises there has to be the offence of assault and this assault has to be of one of the six types mentioned in the six clauses of the section
The view in Ram Saiya s case 1 seems to overlook that in each of the six clauses enumerated in section 100 there is an offence against the human body namely assault
So the right of private defence arises against that offence and what section 100 lays down is that if the assault is of an aggravated nature as enumerat ed in that section the right of private defence extends even to the causing of death
The fact that when describing the nature of the assault some of the clauses in section 100 use words which are themselves offences as for example  grievous hurt   rape   kidnapping   wrongfully confining  does not mean that the intention with which the assault is committed must always be an offence in itself
In some other clauses the words used to indicate the intention do not themselves amount to an offence under the Penal Code
For example the first clause says that the assault must be such as may reasonably cause the apprehension of death
Now death is not an offence anywhere in the Penal Code
Therefore when the word  abducting  is used in the fifth clause that word by itself reed not be an offence in order that clause may be taken advantage of by or on behalf of a person who is assaulted with intent to abduct
All that the clause requires is that there should be an assault which is an offence against the human body and that assault should be with the intention of abducting and whenever these elements are present the clause will be applicable
Further the definition of  abduction  is in two parts namely i abduction where a person is compelled 1 ILR 1948 All
653 by force to go from any place and ii abduction where a person is induced by any deceitful means to go from any place
Now the fifth clause of section 100 contemplates only that kind of abduction in which force is used and where the assault is with the intention of abducting the right of private defence that arises by reason of such assault extends even up to the causing of death
It would in our opinion be not right to expect from a person who is being abducted by force to pause and consider whether the abductor has further intention as provided in one of the sections of the Penal Code quoted above before he takes steps to defend himself even to the extent of causing death of the person abducting
The framers of the Code knew that abduction by itself was not an offence unless there was some further intention coupled with it
Even so in the fifth clause of section 100 the word  abducting  has been used without any further qualification to the effect that the abducting must be of the kind mentioned in section 364 onwards
We are therefore of opinion that the view taken in Ram Saiya s case 1 is not correct and the fifth clause must be given full effect according to its plain meaning
Therefore when the appellant s sister was being abducted even though by her husband and there was an assault on her and she was being compelled by force to go away from her father s place the appellant would have the right of private defence of the body of his sister against an assault with the intention of abducting her by force and that right would extend to the causing of death
The next question is whether the appellant was within the restrictions prescribed by section 99
It was urged that the right of private defence never extends to the inflicting of more harm than what is necessary for the purpose of defending and that in this case the appellant inflicted more harm than was necessary
We are of opinion that this is not so
The appellant gave only one blow with a knife which he happened to have in his pocket
It is unfortunate that the blow landed right into the heart and therefore Gopal died
But considering that the appellant had given 1 ILR 1948 All
83 654 only one below with an ordinary knife which if it had been a little this way or that could not have been fatal it cannot be said that he inflicted more harm than was necessary for the purpose of defence
As has been pointed out in Amjad Khan vs The State 1  these things cannot be weighed in too fine a set of scales or in golden scale 
We therefore allow the appeal and hold that the appellant had the right of private defence of person under the fifth clause of section 100 and did not cause more harm than was necessary and acquit him
Appeal allowed


Summary:
The appellant company incorporated in India entered into a contract on June 18 1945 for the supply of five hundred bales of jute with the respondent company which was incorporated in England and which had its registered office in London
The contract inter alia provided that in the event of default of tender or delivery the seller shall pay to the buyer as and for liquidated damages 10s
per ton plus the excess if any of the market value over the contract price the market value being that of jute contracted for on the day following the date of default
There was a provision for arbitration under which any claim or dispute whatever arising out of or in relation to this contract or its construction or fulfilment shall be referred to arbitration in London in accordance with the bye laws of the London jute Association
Disputes having arisen regarding the performance of the contract the respondent referred the matter to the arbitration of the London jute Association who appointed two of its members as the arbitrators
The appellant did not reply to the notice given by the arbitrators but filed an application on 570 August 10 1949 under section 33 Of the  in the Calcutta High Court praying inter alia a for a declaration that the arbitration agreement was void on the ground of uncertainty and b for a declaration that there was in fact and in law no contract between the parties on account of mutual mistake of the parties
Notice was given by the appellant to the respondent and the London jute Association that further steps in the arbitration proceedings should not be taken pending disposal of the application under section 33 Of the 
The arbitrators however proceeded with the arbitration and gave their award on October 17 1949
On November 26 195i an application was filed by the respondent in the Calcutta High Court under section 5 of the  praying that judgment be pronounced in accordance with the award
The appellant contended that the award was invalid on the grounds inter alia i that the award was bad under section 35 of the  as it was made after the receipt of the notice of filing of the petition dated August 10 1940 under section 33 of the  by the respondent and the arbitrators and during the pendency of the said application and 2 that the liquidated damages provided under the award included not only the difference between the contract price and the market price on the date of default but also a further sum of 10s
per ton that the extra amount was against the provisions Of sections 73 and 74 of the  and that therefore the award was bad on the face of it and could not be enforced in view of the provisions Of section 7e of the  which lays down that an award cannot be enforced in India if it is contrary to the Law of India
Held i that the subject matter of the legal proceedings under section 33 Of the  which relates to the existence and validity of the arbitration agreement are not matters within the competence of the arbitrators and do not therefore cover any part of the subject matter of the reference
Consequently section 35 of the is inapplicable
2 The award does not violate the provisions of sections 73 and 74 Of the  as the arbitrators have only awarded the maximum amount named in the contract