Criminal Appeal No 50 of 1951
Appeal by SpeciaI Leave from the Judgment and Order dated the 26th September 1950 of the High Court of Judicature of Nagpur Herneon Acting CJ and Hidayat Ullah J in Criminal Appeal No 251 of 1950 arising out of Judg ment dated the 2nd August 1950 of the Court of Sessions Judge Jabalpur in Sessions Trial No 32 of 1950
568 SP Sinha and MY Sharif Nuruddin Ahmad and Shaukat Hussain with them for the appellant
Gopal Singh for the respondent
March 20
The Judgment of the court was delivered by BOSE J
The main question in this case is whether there is a right of private defence
Most of the facts are not in dispute
A communal  riot broke out at Katni on the 5th of March 1950 between some Sindhi refugees resident in the town and the local Muslims
The trouble started in the locality known as Zanda Bazar or Zanda Chowk
Police Constable Bharat Singh PW 17 who made the First Information Re port said that most of the shopkeepers in Zanda Bazar are Sindhis
He stated that when he was to1d that trouble had broken out there he proceeded to the spot and found that the goods in the Muslim shops in that locality were scattered
It is also in evidence that some Muslims lost their lives
From this place he went on to Subash Chowk the locality in which the appellant s shop is situate
It lies to the West of Zanda Bazar
He states that when he got there he found a crowd there but not a mob
He admitted that he had said in the First Information Report that a gun was fired a minute after he had reached the spot and he said that what he had stated in the First Information Report was true
It is not disputed that this shot was fired by the appellant as also a second shot and that that caused the death of one man a Sindhi and injured three others also Sindhis
The map exhibit D 4 shows that the shops of the appellant and his brother Zahid Khan run into each other and form two sides of a rectangle the appellant s house facing north and the brother s house facing east
Each shop opens out on to a road
569 It is proved that when the rioting broke out in the Zanda Chowk the alarm spread to the appellant s locality and the people there including the appellant started closing their shops
The appellant s version is that the mob approached his locality and broke into the portion of the building facing east in which his brother s shop is situate and looted it
The High Court holds that this is proved and holds further that this preceded the firing by the appellant
There is a hole in the wall between the two portions of the building in which these two shops are situate and the High Court holds that Zahid s family got into the appel lant s portion of the building through this hole and took refuge there
The High Court also holds that the appel lant s mother then told the appellant that the crowd had burst into his appellant s shop and was looting it
The learned Judges state that what he said was not quite true because all that the crowd did was to beat the door of the appellant s shop with lathis as they were passing but had not broken into the shop
But they accept the fact that the crowd was beating the doors of the appellant s shop with their lathis
In our opinion the facts found by the High Court are sufficient to afford a right of private defence
Under section 97 of the indian Penal Code the right extends not only to the defence of one s own body against any offence affecting the human body but also to defending 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 570 caused the person exercising the right must be under reason able 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 sec tions 102 and 105 of the Indian Penal Code
Neither the learned High Court Judges nor the Sessions Judge has analysed these provisions
Both Courts appear to be under the impression that actual looting of the appel lant s shop was necessary before the right could arise
In that they are wrong
Under section 102 the right of private defence of the body commences As soon as a reasonable apprehension of the danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed
 Examining the provisions we have set out above it is evident that the appellant had no time to have recourse to the authorities
The mob or crowd had already broken into one part of the building and was actually beating on the doors of the other part
It is also evident that the appel lant had reasonable grounds for apprehending that either death or grievous hurt would be caused either to himself or his family learned Sessions Judge has eloquently drawn attention to the lamentable consequences of communal frenzy in India and in Katni in particular and he refers to the indiscriminate looting of Muslim shops in that town
So also the High Court holds that  Looking to the circumstances which had existed in the country before and the fact that the trouble was between the refugees and the local Muslims it cannot be said that there would be no danger to the life of the appellant or at least of grievous hurt if the mob had entered his shop and he prevented it
The apprehension would undoubtedly be reason able
 And we know that Muslim shops had already been broken into and looted and Muslims killed in the 571 rioting at Zanda Chowk which preceded this in our opinion the High Court was wrong in thinking that the appellant had to wait until the mob actually broke into his shop and entered it
They have emphasised this in another part of their judgment also where they say that the shot was fired  when there was no looting at the shop and thus no right of private defence
 It was enough that the mob had actually broken into another part of the house and looted it that the woman and children of his family fled to the appellant for protection in terror of their lives and that the mob was actually beating at his own doors with their lathis and that Muslim shops had already been looted and Muslims killed in the adjoining locality
It was impossible for him to know whether his shop would or would not suffer the same fate if he waited and on the findings it was reasonable for him to apprehend death or grievous hurt to himself and his family once they broke in for he would then have had the right to protest and indeed would have been bound to do what he could to protect his family
The threat to break in was implicit in the conduct of the mob and with it the threat to kill or cause grievous hurt to the inmates indeed the High Court Judges themselves hold that his own shop was menaced
The circumstances in which he was placed were amply sufficient to give him a right of private defence of the body even to the extent of causing death
These things cannot be weighed in too fine a set of scales or as some learned Judges have expressed it in golden scales
We have next to see whether the appellant used more force than was necessary and here also we cannot use golden scales
He was entitled to cause death and he did not kill more than one man
He fired only two shots and as the learned High Court Judges observe he obviously aimed low
The High Court holds the mob had moved up to his locality When he fired the shots so the looting and the beating 572 on the doors were not the isolated acts of a few scattered individuals
It was the mob that was doing it and in the High Court s words The very fact that in the town of Katni two shots should have struck four Sindhis and none else shows that the rival community was on the move in that area
 In our opinion the appellant did not use more force than was necessary
Indeed the firing far from acting as a deterrent spurred them on and they ransacked and looted the place
We have confined our attention to the right of private defence of the person though in this case the question about the defence of property happens to be bound up with it
The appeal is allowed
The convictions and sentences are set aside and the appellant will be released


Summary:
The appellants were the trustees of a charity fund known as The Charity Fund founded by Sir Sassoon David Baronet of Bombay 
Clause 13 Of the deed of trust after declaring that the trustees should apply the net income for all or any of the following purposes namely a the relief and benefit of the poor and indigent members of Jewish or any other community of Bombay or other parts of India or of the world either by making payments to them in cash or providing them with food and 924 clothes andor lodging or residential quarters or in giving education including scholarships to or setting them up in life or in such other manner as to the said Trustees may seem proper or b the institution maintenance and support of hospitals and schools colleges or other educational institutions or c the relief of any distress caused by the elements of nature such as famine pestilence fire tempest flood earthquake or any other such calamity or d the care and protection of animals useful to mankind or e the advancement of religion or f other purposes beneficial to the community not falling under any of the foregoing purposes I added by way of provisos i that in applying the net income for the purposes mentioned in sub cl
a the trustees must give preference to the poor and indigent relations or members of the family of Sir Sassoon David including distant and collateral relatives 2 that for the said purpose the trustees must apply not less than half of the income for the benefit of the members of the Jewish community of Bombay only including the said relatives of Sir Sassoon David and Jewish objects
The question for determination was whether the income from the trust fund was exempt from taxation under section 43i Of the Indian Income tax Act
The High Court came to the conclusion that the trust fund could nut be said to be held wholly or partly for religious or charitable purposes involving an element of public utility and answered the question in the negative
Held that there could be no doubt that each one of the pri mary purposes mentioned in the deed of trust including the one mentioned in sub cl
a properly construed involved an element of public utility and thus they constituted a valid charitable trust
Although it was open to the trustees to spend the entire income for the purpose mentioned in sub cl
a that could not detract from the validity of the trust since the relations or family members of the founder did not come in directly under any of the other purposes and could do so only under sub cl
a as preferential beneficiaries to be selected from out of the class of primary beneficiaries prescribed by it in terms of the provisos
The test of the validity of such a public charitable deed of trust should be whether or not at the primary stage of eligibility it could be said to possess that character
In re Koettgan s Will Trusts  applied
Trustees of Gordhandas Govindram Family Charitable Trust vs Commissioner of Income tax Central Bombay 195221 ITR231 distinguished and held inapplicable
The circumstance that in selecting the actual beneficiaries 925 from the primary class of beneficiaries under sub cl
a the trustees had to give preference under the provisos to the relations or members of the family of Sir Sassoon David could not therefore affect the public charitable trust constituted under sub cl
a and the income from the trust properties was entitled to exemption under section 43i Of the Indian Income tax Act