ALLAPPA NINGAPPA MUGALKHOD v. STATE OF MYSORE — 1972 DIGILAW 24 (KAR)

( 1 ) THIS revision petition is preferred by four persons namely Allalappa ningappa Mugalkhod (A1), Ninrappa Allalappa Mugalkhod (A2) Mallappa basappa Hippargi (A3) and Balasab Dastagirsab Yadwad (A4), who have been convicted by the Principal Munsiff and JMFC. , Jamkhandi under S. 325 read with S. 34 IPC for causing grievous hurt to Irayya rachayya Navalgi and further convicted A3 Mallappa Basappa Hippargi for an offence under S. 325 IPC. for causing grievous hurt to Mallawa rachayya Navalagi and sentenced to various terms of imprisonment. The said convictions and sentences have been confirmed by the Sessions Judge, bijapur. ( 2 ) THE prosecution case was that the accused persons trespassed into r. S. Nos. 239/1 and 240/1a of Chimmad village belonging to one Gurupadappa gunaki, which were being cultivated for number of years by Irayya rachayya Navalagi as a tenant, and assaulted PWs. l to 4 causing them injuries. ( 3 ) SO far as the case of the prosecution that the accused persons committed criminal trespass on the lands in question, the prosecution, as held by the learned Magistrate, have not proved that the lands in question were in possession of PW. 1 on 31-8-1969. the date on which the incident took place. The lands in question belonged to one Gurupadappa Gunaki. The case of the prosecution was that PW. 1 was the tenant of Gurupadappa gunaki for a number of years and on the date of the incident also he was his tenant. On this profit the prosecution have failed to prove that PW. 1 was a tenant of Gurupadappa Gunaki at anv time, more so on the date of the incident. During the course of his evidence, PW. 1 has admitted that the names of Accused 1 and one Mahadevappa Hatti had been entered in the revenue records in respect of these two R. S. Numbers and in respect of the entry of the names of Accused 1 and Mahadevappa Hatti he had filed an appeal. It is also in evidence that Gurupadappa Gunaki had filed a suit against PW. 1 and had obtained an order of temporary injunction in respect of these two R. S. numbers. The prosecution has no doubt tried to make out that, by the time the incident took place the order of temporary injunction had been vacated. Except the oral statements of pw. 1 and had obtained an order of temporary injunction in respect of these two R. S. numbers. The prosecution has no doubt tried to make out that, by the time the incident took place the order of temporary injunction had been vacated. Except the oral statements of pw. 1 and some of the witnesses to this effect, no satisfactory material was plated to show that the order of temporary injunction had been vacated and that PW. 1 was in possession or. the date in question. On the other hand, the accused have placed incontrovertible evidence through documents to show that A1 and one Mahadevappa Hatti were in possession of the two lands in question. ( 4 ) THE case of the accused was that Al and Mahadevappa Hatti had purchased the lands from Gurupadappa Gunaki and they were in possession of the same. The learned Magistrate on this point has held as follows:"in the case on hand, no steps are taken to collect the several records and copies of the proceedings between the complainant and the owner of the land when admittedly there has been litigation in. the Civil Courts as well as "revenue Courts between them in respect of the lands in question It is, therefore, not possible for the Court to accept the oral evidence of PWs. 1 to 4 and 6 and 7 when they state that the complainant has been cultivating the suit land as tenant since 8 years or that he was in possession of the said lands on the date of occurrence. Unless the lawful possession of the lands by the complainant is proved the accused cannot be held to have committed an offence of Criminal trespass even if they have entered on said lands and particularly when accused No. 1's name is said to have been entered in the R of R of the lands in question, as is admitted by the complainant himself. The other accused are close relatives and servant of accused No. 1, who have simply followed accused 1. I am, therefore, not convinced of the prosecution evidence for proof of the lawful possession of the lands in question by the complainant on the date of occurrence. Hence, I hold that the prosecution have failed to prove the offences tinder S. 447 of the IPC. against accused Nos. I am, therefore, not convinced of the prosecution evidence for proof of the lawful possession of the lands in question by the complainant on the date of occurrence. Hence, I hold that the prosecution have failed to prove the offences tinder S. 447 of the IPC. against accused Nos. 1 to 4 and accordingly I find them not guilty of the said offence. "the appellate Court, while considering the case of the accused, did not address itself whether the accused had committed criminal trespass, but it could be gathered from the judgment that the learned Sessions Judge was also of the view that the prosecution have failed to prove the offence of criminal trespass. In that view the only question that he addressed himself was whether the accused persons caused grievous hurt to pws. 1 to 4. ( 5 ) THE oral evidence of PWs. 1 to 4 goes to show that the accused persons assaulted PW 1 causing him erievous injury and accused 3 assaulted pw. 2 causing him also grievous injury. ( 6 ) ON behalf of the accused Mr. Shamanna, their learned Counsel, urged that the prosecution evidence itself proves that Al was in possession and enjoyment of the lands in question and that being so, on the date in question he was in lawful possession. He urged that PWs. 1 to 4, on the proved facts, committed criminal trespass on the lands and if that be so. Al and his people who were living with him were justified in maintaining the possession of the lands in question and when PW. 1 and his men attempted to disposses Accused 1. Accused 1 and his men had no option but to assault PWs. 1 to 4 in exercise of their right of private defence of their property. Mr. Nagappa appearing for the State, however, contended that the accused persons have not pleaded the right of private defence to their property and therefore, they cannot avail such a defence on the facts of this case. It is no doubt true that the accused have not pleaded specifically that in exercise of their right of private defence of their property they assaulted one or the other prosecution witness. Their case was one of total denial. ( 7 ) THE right of self defence need not be specifically pleaded by the accused. It is no doubt true that the accused have not pleaded specifically that in exercise of their right of private defence of their property they assaulted one or the other prosecution witness. Their case was one of total denial. ( 7 ) THE right of self defence need not be specifically pleaded by the accused. A person taking the plea of private defence is also not required to call evidence on his side, but he can establish that plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence and not a question of the accused discharging any burden. On the facts of this case, there is no doubt that on the relevant date and even before A-1 was in possession and enjoyment of the lands in question. The story of the prosecution that PW. 1, along with his men, was in possession and enjoyment of the lands for a number of years and on the date of the incident also be was in possession as a tenant has been negatived by the evidence, placed on record. It is an undisputed fact that on the relevant date in question, as observed by the learned Magistrate, pw. 1 was not in possession of the lands in question. It follows therefore, that on the relevant date A-l was in possession of the lands in question. If that is so, if PW. 1 and his supporters went to the land, they must have gone to dispossess A-1 and his men from lawful possession, in which case PW. 1 and his men committed criminal trespass. ( 8 ) AGAINST criminal trespass the person in possession of the property has the right of private defence of property so long as the trespass continues and this right extends to causing to the trespassers anv harm other than death subject to the restrictions mentioned in S. 99 IPC. namely, that no more harm should be inflicted than is necessary for the purpose of defence and that there is no time to have recourse to the protection of the authorities. namely, that no more harm should be inflicted than is necessary for the purpose of defence and that there is no time to have recourse to the protection of the authorities. If, in the exercise of this right, such resistance is offered by the trespassers that a reasonable apprehension is caused to the owners that death or grievous hurt would be the result, the right of private defence of person then arises and extends to-the causing of death. ( 9 ) PWS. 1 to 4 trespassed into the lands in question obviously with a view to take forcible possession of the same. Although the evidence of pw. 1 and his men is to the effect that PW. 1 was living in a shed that was in one of the lands in question, from the material available in this case, it if clear that PW. 1 could not have been living in that shed. The evidence of PW. 1 and other witnesses further shows that on the date in question cattle of PW. 1 had been tethered in one of the lands. This must have been done on the date in question PW. 1 and other witnesses must have gone to the land in question on that day obviously with the intention of taking forcible possession of the lands in question. From the fact that the cattle of PW. 1 had been tethered and a cart belonging to PW. 1 had bpen taken to the land in question, it is clear that PW. 1 and his men intendrd to dispossess A-1 and his people from the lands, if need be forcibly. At any rate, their act would have raised a reasonable apprehension in the minds of A-1 and his men that grievous hurt was likely to be caused to them. In such a situation A-1 and his men were entitled to defend their possession by using force against PW. 1 and his men. In Horman v. Rex, (1949) 50 Cr. L. J. 868 it has been pointed out that:" Where a trespasser enters upon the land of another, the person, in whom the right of possession is vested, while the trespasser is in the process of acquiring pcsscssion, may turn the trespasser out of the land by force and if in doing so, he inflicts such injuries on the trespasser as are warranted by the situation, he commits no offence. His action would be covered by the principle of self-defence embodied in Ss. 96 to 105, Penal Code. If. on the other hand, the trespasser had already accomplished or completed his possession and the person with the right of possession has acquiesced in this accomplishment, it is not open to the ijr. ter to avail himself of the doctrine of self-defence and by inflicting injuries on the trespasser to re-acquire possession of his land. " ( 10 ) IN the present case it cannot be said that PW. 1 had already accomplished or completed his possession by dispossessing A-1. As I have already observed, A1 was in possession of the lands in question. In these circumstances, if A-1 and his men inflicted injuries upon PWs. 1 to 4 with a view to safeguard the possession of the lands they would not be committing any offence. They were justified in using force against PWs. 1 to 4, because the manner in which PWs. 1 to 4 tried to take forcible possession of the lands must have given reasonable apprehension in the minds of Al and his people that grievous hurt would be caused to them. A-1 and his men were justified in inflicting injuries. I do not think that the accused persons had used more force than was necessary on the facts of this case. ( 11 ) MR. Nagappa, however, contended that PWs. l to 4 had not taken any weapons with them. According to him, the evidence in this case goes to show that PW. 1 or his men did not attempt to take forcible possession of the lands in auestion and that being the case, the accused persons did not get the right to private defence as they could have taken the help of the Police to remove PW. 1 and his men from the land. When the property of a person is threatened it would be wrong to hold that that person should resort to public authority. He would be right in taking such action to throw out the trespasser from the lands as are necessary in the circumstances of the case and in doing so, if he uses force, he would be rotected under Sec. 97 of the IPC. He would be right in taking such action to throw out the trespasser from the lands as are necessary in the circumstances of the case and in doing so, if he uses force, he would be rotected under Sec. 97 of the IPC. On the facts of this case, although the accused persons have not taken the right of private defence, the prosecution case itself establishes that in fact the right of private defence had accrued to them and they must have acted in exercise of that right and while doing so if they had caused injuries to PWs. 1 to 4 thev cannot be convicted for having caused grievons hurt to anv of the prosecution witnesses. Tn this view, the Courts below were wrong in convicting the accused persons. ( 12 ) FOR the reasons stated above, I set aside the convictions and sentences passed against the accused and acquit them. This Revision petition is allowed. --- *** --- .