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Madhya Pradesh High Court · body

2010 DIGILAW 52 (MP)

Malu S/o Hemta Bhilala v. State Of M. P.

2010-01-13

S.L.KOCHAR

body2010
JUDGMENT : The appellant has preferred this appeal under section 374, Criminal Procedure Code against his conviction under section 304 (Part-II) of the Indian Penal Code and sentence of R.I. for five years, passed by the learned Second Addl. Sessions Judge Alirajpur to the Court of Sessions Judge, Jhabua in Sessions Trial No. 407/95 by judgment dated 27-3-1996. 2. According to the prosecution case on 24-5-1995 in the evening at 5.00 PM., deceased Juwan Singh directed his widowed sister-in-law (Bhabhi) to oust her son-in-law, the appellant who was kept as Ghar Jamai. He also told her that he would not allow the appellant to cultivate the land. Sister-in-law Gendi did not agree to this, because there was no male member in her family to cultivate the land and to feed them. Deceased Juwan Singh abused his sister-in-law and niece as well as the appellant and driven them out of the house, but on the same day in the night at 8.00 PM all of them returned back to their house whereupon again Juwan Singh started abusing them and asked his sister-in-law to turn out the appellant. At that juncture, the appellant came out of the house with an axe and while abusing caused axe blows to Juwan Singh resulting into his death. Incident was witnessed by Mehribai, Dhundaribai, Kunwar Singh and Ver Singh and Ver Singh. First Information Report at the Police Station was lodged by Bahadar (PW-2) and police registered the crime against the appellant for having committed an offence punishable under section 302 of the Indian Penal Code. Police reached on the spot and prepared spot map and after completing the inquest inquiry sent the dead body for post-mortem examination which was performed by PW1 Dr. B. S. Bariya who also issued the post-mortem report Ex.P/2. Appellant was arrested and at his instance, axe was seized by the police. On completion of investigation, charge-sheet was filed against the appellant for commission of offence punishable under section 302 of the Indian Penal Code. 3. Appellant denied the charges and examined his mother-in-law Gendibai in his defence to establish his case of right of private defence of his person and property. Learned trial Court, after examining the prosecution and the defence witnesses and hearing both the parties, convicted and sentenced him as mentioned herein-above. 4. 3. Appellant denied the charges and examined his mother-in-law Gendibai in his defence to establish his case of right of private defence of his person and property. Learned trial Court, after examining the prosecution and the defence witnesses and hearing both the parties, convicted and sentenced him as mentioned herein-above. 4. We have heard learned counsel for the parties and on perusal of the record, this Court is of the view that the appellant deserves to get benefit of exception of right of private defence of his person and property. 5. In the opinion of Dr. Bariya, injury No. 1 was sufficient in the ordinary course of nature to cause death whereas injury No. 2 was dangerous and other injuries were simple in nature. Out of five injuries, two were simple abrasions which could be caused by fall on the ground. 6. PW-2 Bahadur has admitted in para 6 of his deposition that if on the date of incident, deceased would have not gone to the house of appellant, he would have not died. He has also specifically admitted that the deceased had jumped inside the house of the appellant after breaking the tiles of the roof and he was also uttering that either he would survive or the appellant and the deceased was also making war-cry (Kurrati). PW-3 Mehribai has deposed that Juwan Singh had picked up quarrel and was saying that he was the owner of the land and he himself would cultivate it. She has also stated in para 4 of her statement that Juwan Singh having sword in his hand jumped from the roof inside the house while making war-cry and was saying that either he would kill the appellant or would finish himself. 7. PW-4 Dhundaribai has also stated the same thing in para 6 of her statement and these witnesses were not declared hostile by prosecution. In view of this evidence, it is crystal clear that the deceased was keeping grudge against the appellant who was residing with his mother-in-law who was a widow and on the date of incident, in the noon appellant had driven out his sister-in-law, the appellant and the children of his sister-in-law who had returned back in the house in the night. Thereafter, the deceased climbed over the roof and after removing the tiles, jumped inside the house having sword in his hand. Thereafter, the deceased climbed over the roof and after removing the tiles, jumped inside the house having sword in his hand. At that juncture, he was also making war-cry and challenging the appellant. Under all these circumstances, the appellant used force and caused injuries by axe. It cannot be said that the appellant exceeded his right of private defence of his person and property. The deceased had committed lurking house trespass or house breaking for committing murder of the appellant. Under that circumstance, appellant had every right to use force till ousting of the deceased from inside the house and if for doing so he caused two-three blows, the same would not fall within the purview of the provisions of Exception (2) of section 300 of the Indian Penal Code, exceeding right of private defence of person and property. 8. It is well settled legal position that right of private defence of person and property cannot be measured in golden scale. When the appellant was having serious threat of his life, at that moment, he cannot be expected to use calculative force and in the given circumstances, his act would be fully covered under section 100 (firstly) read with section 103 (secondly) and (fourthly) of the Indian Penal Code which read as under :- "Section 100. When right of private defence of the body extends to causing death. - 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 reasonable 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 shall otherwise be the consequence of such assault. Thirdly - .. .. .. Fourthly - .. .. .. Fifthly - .. .. .. Sixthly - .. .. .. 103. When the right of private defence of property extends to causing death. Secondly - Such an assault as may reasonably cause the apprehension that grievous hurt shall otherwise be the consequence of such assault. Thirdly - .. .. .. Fourthly - .. .. .. Fifthly - .. .. .. Sixthly - .. .. .. 103. When the right of private defence of property extends to causing death. - The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrongdoer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions herein-after enumerated, namely. - First - .. .. .. Secondly - House-breaking by night Thirdly - .. .. .. Fourthly - Theft, mischief, or house-trespass, under such circumstances as may reasonable cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised." 9. It is evident from the statements of the aforesaid prosecution witnesses, who were not declared hostile by the prosecution that the deceased committed house breaking by night and caused damage to the roof tiles committed mischief and jumped inside the house armed with sword which was sufficient for having reasonable apprehension by the appellant for his death or grievous hurt at the instance of the deceased. 10. In the result, this appeal is allowed. Conviction and sentence as passed by the trial Court against the appellants are hereby set aside. The appellant is on bail, his bail and surety bounds shall stand discharged. Office is directed to send a copy of this judgment of the trial Court along with its record for compliance.