Randhir singh v. State — 1958 DIGILAW 12 (MP)

JUDGMENT Khan J. 1. On 1-7-56 at about noon, Kamarji and Ganesh Ram were constructing a Bagar (putting up a fence on a land which was jointly owned and used by Kamarji and his family on one hand and Roopsingh and his family on the other. Roopsingh objected and a quarrel ensued. Roopsingh was a man of 65 years and walked with the aid of a stick. Narain Singh (brother of Kamarji) pushed Roopsingh, who fell on the ground. Seeing his father being pushed like this, accused Randhir Singh (the son of Roopsingh) got hold of a stick with which the fence was being raised (known as "Oab") and tried to hit Narainsingh, who pushed his father, on the shoulders, but the weapon descended upon the pericranium. Narainsingh on receiving this blow fell in a pit. He never recovered consciousness and died on his way to the hospital. It is also alleged that Kamarji and Ganeshram received contused wounds; at the hands of Roopsingh (father of the accused). Oodhamsingh (brother of the accused) and one Kishensingh (grandson of Roopsingh); All the four persons were challaned under Section 302 Indian Penal Code read with Section 34 I.P C. On trial, Roopsingh, Oodhamsingh and Kishen Singh were acquitted. Only Randhir Singh has been convicted under Section 325 I.P.C. and sentenced to 4 years' rigorous imprisonment. 2. The accused denies having given any blow to Narain Singh. But there is over-whelming evidence of the fact that the accused was there and that when his father (Roopsingh) was given a push and thrown down on the ground, accused Randhir Singh gave a blow to Narainsingh which proved fatal. 3. The learned counsel for the appellant contended that having regard to the facts of the case, the accused acted in the exercise of the right of self-defense. 4. It must be stated at the outset that the accused has not pleaded any right of self-defense. What we have therefore got to see is whether in view of the circumstances of this case, it can be said that an injury which he inflicted, was in the exercise of right of self-defense. 5. Section 97 of the Indian Penal Code lays down that every person has a right, subject to the restrictions contained in Section 99, to defend his own body or the body of another or property under certain circumstances. 5. Section 97 of the Indian Penal Code lays down that every person has a right, subject to the restrictions contained in Section 99, to defend his own body or the body of another or property under certain circumstances. Section 100 of the Indian Penal Code gives the circumstances in which the right of private defense of the body can be exercised to the extent of causing death. 6. Dealing first with the right of private defense of the body, I find, that for the purpose of this case according to Section 100 I.P C. if an assault reasonably causes an apprehension that death will ensue or that grievous hurt will be caused, then one can act in the exercise of the right of self-defense. In the instant case, the father of the accused was pushed and he fell on the ground. There is nothing on the record to show that in these circumstances, there was any reasonable cause for the apprehension that as a result of this action either death would follow or grievous hurt would be caused to the father. In these circumstances, there was no occasion for the exercise of any right of self-defense of the body. 7. The law regarding the exercise of the right of private defense of the property is contained in Section 103 of the Indian Penal Code the learned counsel for the appellant contends that according to 4th clause of Section 103, the accused was justified in hitting the deceased in the protection of joint property. 8. Clause IV of Section 103 runs thus :- Theft, mischief or house trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence if such right of private defense is not exercised. Now the facts of this case reveal that there was a quarrel about a piece of land which is admittedly owned jointly by the complainants and the accused. Furthermore it is also apparent from the record that a fence was being raised near the house. The raising of a fence can neither be a theft nor mischief nor house trespass, It being so, the accused was not justified in giving a blow to Narain Singh in defense of his property. Furthermore it is also apparent from the record that a fence was being raised near the house. The raising of a fence can neither be a theft nor mischief nor house trespass, It being so, the accused was not justified in giving a blow to Narain Singh in defense of his property. The learned Sessions Judge in a most slip-shod manner, without referring to the circumstances under which the accused would be deemed to have exercised the right of private defense, has observed that the accused has exercised the right of private defense. If the plea of self-defense is taken, the duty of the Court is to show in its judgment, the circumstance in which the right is said to have been exercised. Merely saying that the accused has exceeded the right of self-defense without showing the circumstances in which he acted, is not proper. 9. The learned counsel for the appellant has referred me to four cases. These are: - 1. A.I.R. 1949. All. 254. 2. A.I.R. 1952 S.C. 165; 3. 1954 Cri LJ 353. 4. A.I.R. 1934 All. 829 I shall consider these cases in the order in which they have been given above. 10. The facts of the Allahabad case are that the accused, who are father and son, were neighbors of the deceased. There was a long standing dispute as to the ownership of the cattle trough between the parties. On the day of occurrence there was a quarrel over this trough, which resulted in a fight. The deceased was the first person to strike a Lathi-blow on the head of the first accused. The second accused who rushed to protect his father also received Lathi blows. The accused thereupon gave Lathi blows to the deceased causing 5 injuries, as a result of which he died. The defense was that a sudden quarrel arose between the accused and the deceased and the deceased was the aggressor and gave him a Lathi blow first, with the result that he fell down and became unconscious. In the instant case the accused denies his presence altogether and does not set out the circumstances in which he may be deemed to have exercised the right of self-defense. In the instant case the accused denies his presence altogether and does not set out the circumstances in which he may be deemed to have exercised the right of self-defense. Besides that in the Allahabad case a blow was given on the head, which could have caused apprehension in the mind of the accused that grievous hurt if not death, would be caused The facts of the Allahabad case do not help the appellant. 11. The facts given in A.I R 1952 S.C 165 show that in a communal riot, one party began to loot the other party. It was in these circumstances that their Lordships of the Supreme Court held that the accused had no time to have recourse to the authorities. It was observed that the circumstances in which the accused was placed were amply sufficient to give him a right of private defense of the body even to the extent of causing death. In the present case there are no such circumstances and so this case is also besides the point, 12. From the perusal of the Assam case (reported in 1954 Cri. L J 353), it appears that the aggressor had struck the accused twice with a bamboo stick. In these circumstances the accused had reasonable apprehension of sustaining grievous hurt to himself. This case too does not help the accused. 13. In A.I R. 1934 All. 829, it is said that it is not the intention of Section 97 and Section 99 Indian Penal Code to compel a person having the right of private defense of property to acquiesce in criminal trespass and not exercise his right of private defense at all. The facts of the Allahabad case and the facts of the present case are vastly different and they do not also help the appellant. 14. After carefully considering the argument that has been advanced on behalf of the appellant and also considering the facts of the case, I am afraid I can not hold that there was any occasion for the accused to act in the exercise of self-defense either of his property or the person of his father. 15. 14. After carefully considering the argument that has been advanced on behalf of the appellant and also considering the facts of the case, I am afraid I can not hold that there was any occasion for the accused to act in the exercise of self-defense either of his property or the person of his father. 15. Although I do not accept the contention of the learned counsel for the appellant that the accused acted in self-defense, yet I am of the opinion that the peculiar circumstances of this case are such that the accused could be said to have caused grievous hurt on a grave and sudden provocation and that the offence of the appellant falls under Section 325 of the Indian Penal Code. 16. There is no doubt that the accused caused grievous hurt but the circumstances under which this hurt was caused are that his aged father (who was about 65 years old) was pushed away so forcibly that the father fell on the ground. Seeing this, it seems that the accused lost control of himself and taking help of 'Oab' (an instrument with which the complainants were constructing the fence and which was lying at the place of occurrence), he hit the person who gave the push to his father. Kamarji P.W 1, says that the accused wanted to hit on the shoulders of Narain Singh, the deceased, but because Narainsingh had bent himself a little, the blow fell on the head, Ganeshram P.W 3 has also deposed to the same effect. There is no evidence of any premeditated fight and the whole thing was sudden. 17. In result the appeal is partly allowed and setting aside the conviction and sentence under Section 325 I.P.C., I convict the accused under Section 335 Indian Penal Code and sentence him to two years' rigorous imprisonment. The judgment of the trial Court shall stand amended to this extent. Appeal allowed.