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2010 DIGILAW 262 (CHH)

Manraj v. State of M. P. (now C. G. )

2010-11-09

SUNIL KUMAR SINHA

body2010
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 23.11.92 passed in Sessions Trial No. 207/87 by the Additional Sessions Judge, Baikunthpur. 2. By the impugned judgment, the Appellant has been convicted Under Sections 325 & 323 IPC and sentenced to undergo R.I. for 3 years and fine of Rs. 1,500/-, in default S.I. for 4 months, and R.I. for 6 months respectively. 3. The facts, briefly stated, are as under: Appellant- Manraj and his 3 sons were prosecuted Under Sections 302 & 323 IPC. It was alleged that on 17.11.86, they committed murder of deceased-Sunder Sai and they also caused simple injury to his wife- Hirondiya Bai. Appellant-Manraj and deceased- Sunder Sai were real brothers. They had ancestral property in village Morma and Chhindia. Deceased- Sunder Sai was residing in village Morma and the accused persons were residing in village Chhindia. There was a partition in their ancestral property and the disputed land (hahra) fell into the share of Appellant- Manraj. Admittedly, Appellant- Manraj was in cultivating possession of the disputed land since many years. In the year 1986, Manraj had sown paddy crop on the disputed land. The prosecution came with the case that, in fact, the paddy crop was sown by deceased-Sunder Sai. On 17.11.86 at about 11.00 a.m. when the deceased, his wife- Hirondiya Bai and their son-in-law -Somar Sai were harvesting and taking the paddy crop of the said land, the accused persons came there and they assaulted Sunder Sai by lathi on his head. They also caused some injury to Hirondiya Bai. Sunder Sai received an injury on his head. He was admitted in the hospital, where he died on 21.11.86. In post-mortem examination, it was found that he sustained a fracture of 3 inch x 2/2 inch on the middle of the scalp. One line of it has extended to frontal region and one line has extended upto left temporal region and an other line has extended upto right temporal region of the skull. Margins were congested. Blood clots were found in skull. Initially the offence was registered under Section 307/34 IPC, but later on, it was converted Under Section 302 IPC. The learned Sessions Judge, on a close scrutiny of evidence led before it, acquitted 3 accused persons (sons of Appellant- Manraj) of the charges framed against them. Margins were congested. Blood clots were found in skull. Initially the offence was registered under Section 307/34 IPC, but later on, it was converted Under Section 302 IPC. The learned Sessions Judge, on a close scrutiny of evidence led before it, acquitted 3 accused persons (sons of Appellant- Manraj) of the charges framed against them. The Sessions Judge held that it was not proved that the above 3 accused persons also participated in assault. The Sessions Judge also recorded finding that, in fact, the disputed land was in actual physical possession of the accused party and they had sown paddy crop on the said land. On the date of incident, the accused persons were harvesting their paddy crop, the deceased came there and he tried to take the paddy crop harvested by the accused persons, on which, the incident took place and the deceased was given single blow by the Appellant. The Appellant took the plea of right of private defence of the property. The said plea was rejected by the Sessions Court on the ground . that the land in question was recorded in joint possession of both the brothers (Appellant and deceased) in Revenue Record, therefore, even if the accused persons had sown the crop on the said land, they would not get a right of private defence of the property on that account. 4. Mr. Manoj Mishra, learned Counsel appearing on behalf of the Appellant, argued that the learned Sessions Judge erred in law in rejecting the plea of right of private defence of property. When it was held that the accused party had cultivated the land and paddy crops were grown by them, there was no reason to reject the plea of right of private defence merely on the ground that the Revenue Record stands on the joint names of the Appellant and the deceased. 5. On the other hand, Mr. V.V.S. Murthy, learned Dy. Advocate General appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. 6. I have heard the learned Counsel for the parties at length and have also perused the records of the sessions case. 7. Section 97 of the IPC deals with the provisions relating to right of private defence of the body and of property. 6. I have heard the learned Counsel for the parties at length and have also perused the records of the sessions case. 7. Section 97 of the IPC deals with the provisions relating to right of private defence of the body and of property. It provides that every persons has a right, subject to the restrictions contained in Section 99, to defend his own body, and the body of any other person, against any offence affecting the human body; and the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. 8. In Darshan Singh v. State of Punjab and Anr. 2010 Cri.L.J. 1393, the Supreme Court held that the court dealing with the plea of right of private defence has to weigh the. material to conclude whether the plea is acceptable. The Supreme Court said that it is essentially a finding of fact. The Supreme Court enumerated the following principles relating to the right of private defence: (i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize 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 comterminus 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 protection of the person or property. (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 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 Indian 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. 9. In Puran Singh and Ors. v. The State of Punjab 1975 Cri.L.J. 1479, the Supreme Court held that the nature of possession which may entitle a trespasser to exercise the right of private defence of property and person should contain the following attributes: (i) the trespasser must be in actual physical possession of the property over a sufficiently long period; (ii) the possession must be to the knowledge either express or implied of the owner or without any attempt at concealment and which contains an element of animus possidendi. The nature of possession of the trespasser would however be a matter to be decided on facts and circumstances of each case; (iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner; and (iv) one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession, in which case the trespasser will have a right of private defence and the true owner will have no right of private defence. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession, in which case the trespasser will have a right of private defence and the true owner will have no right of private defence. The Supreme Court further held that the expression 'settled possession' has been used in Munshi Ram and Ors. v. Delhi Administration AIR 1968 SC 702, to mean such clear and effective possession of a person, even if he is a trespasser, who gets the right under the criminal law to defend his property against attack even by the true owner. It was held that the right of private defence of person or property is to be exercised under the following limitations: (i) that if there is sufficient time for recourse to the public authorities the right is not available; (ii) that more harm than necessary should not be caused; (iii) that there must be a reasonable apprehension of death or of grievous hurt to the person or damage to the property concerned. It was held that it is not the law that a person when called upon to face an assault must run away to the police station and not protect himself or when his property has been the subject-matter of trespass and mischief he should allow the aggressor to take possession of the property while he should run to the Public authorities. Where there is an element of invasion or aggression on the property by a person who has no right to possession, then there is obviously no room to have recourse to the public authorities and the accused has the undoubted right to resist the attack and use even force if necessary. The question whether a person having a right of private defence has used more force than is necessary would depend on the facts and circumstances of a particular case. 10. In case on hand, the learned Sessions Judge, on due appreciation of evidence of prosecution witness, recorded a positive finding vide Para-39 of the judgment that bahra land, which was in dispute, was in possession of the accused persons and the accused persons had cultivated paddy crop on the said land. 10. In case on hand, the learned Sessions Judge, on due appreciation of evidence of prosecution witness, recorded a positive finding vide Para-39 of the judgment that bahra land, which was in dispute, was in possession of the accused persons and the accused persons had cultivated paddy crop on the said land. The Sessions Judge further recorded the finding that the accused persons were harvesting the paddy crop sown by them but the deceased forcibly wanted to take the paddy crop harvested by the accused persons. It is in these circumstances, the Appellant gave single blow on the head of the deceased due to which he received injury and he died on the 5th day during the course of his treatment. 11. The plea of right of private defence was taken by the Appellant in his 313 Code of Criminal Procedure statement also. Even after admitting the exclusive physical possession of the accused persons on the disputed land and after holding that the accused persons had grown paddy crop on the said land and that the deceased wanted to take that crop forcibly, the Sessions Judge rejected the plea of right of private defence only on the ground that the land in question was recorded in joint possession of both the brothers (Appellant and deceased) in Revenue Record, therefore, right of private defence of property was not available to the Appellant. I am unable to accept the said finding recorded by the learned Sessions Judge in view of the principles laid down in Puran Singh2 (supra). What is important for exercising of right of private defence of property in such matter, is the actual physical possession over the property which is said to be settled possession in terms of dictum of the Supreme Court in Munshi Ram3 (supra) which clearly lays down that the possession should be clear and effective possession of a person, even if he is a trespasser because he gets the right under the criminal law to defend his property against attack even by the true owner. Here the possession of accused persons appears to be since long back and in the relevant year they had grown the paddy crop on the land. Here the possession of accused persons appears to be since long back and in the relevant year they had grown the paddy crop on the land. Therefore, even if the land was recorded in the joint names of the 2 brothers in the Revenue Record, the Appellant, who was in exclusive possession of the land, had a right of private defence of his property and the Sessions Judge clearly fell into error by holding that the Appellant was having no such right and the act of the Appellant was directly punishable under the penal provisions. 12. Now the question arises about the force used by the Appellant for protecting his property? The force used by the accused in such matter ought not to be wholly disproportionate or much greater than necessary for protection of the property. In the present case, when the deceased wanted to forcibly carry the harvested crop of the Appellant, the Appellant gave single blow to the deceased by baihenga (stick of bamboo for carrying paddy on shoulder) brought for carrying the paddy crop. Admittedly the Appellant gave single blow only to the deceased. Had the Appellant repeated the blow, then his case would have fallen into exceeding. In case of using the single blow in the said circumstances would not bring the case of the Appellant in exceeding exercise of right of private defence of his property. 13. In Jai Dev v. The State of Punjab AIR 1963 SC 612, also referred in the judgment of Puran Singh, while adverting to the question as to whether the force used should not be more than what is necessary, the Supreme Court observed: But in dealing with the question as to whether more force is used than is necessary or than was justified by the prevailing circumstances, it would be inappropriate to adopt tests of detached objectivity which would be so natural in a court room, for instance, long after the incident has taken place. That is why in some judicial decisions it has been observed that the means which a threatened person adopts of the force which he uses should not be weighed in golden scales. 14. That is why in some judicial decisions it has been observed that the means which a threatened person adopts of the force which he uses should not be weighed in golden scales. 14. On the above principles, if the single blow was used by the Appellant and it was not repeated, I am satisfied that it was not a case of use of wholly disproportionate or much greater force, thereby exceeding exercise of right of private defence by the Appellant in the prevailing facts and circumstances of the case. 15. So far as injury caused by the Appellant to Hirondiya Bai is concerned, the evidence in that behalf is not clear. In view of the exaggeration made by Hirondiya Bai and further in view of the fact that her evidence was not held reliable for involvement of the 3 other accused persons, it was not established beyond all reasonable doubt that the Appellant inflicted any blow to Hirondiya Bai, who simply was complaining pain on right back portion of knee and the right arm and there was a contusion on her right thigh. 16. For the foregoing reasons, the conviction and sentences awarded to the Appellant cannot be sustained. 17. In the result, the appeal is allowed. The conviction and sentences awarded to the Appellant Under Sections 325 & 323 IPC are set-aside. The Appellant is acquitted of the charges framed against him. It is stated that the Appellant, who has already undergone for more than 3 months, is now on bail. His bail bonds are cancelled and surety stands discharged.