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2011 DIGILAW 774 (BOM)

Sachin s/o. Gajanan Raut v. State of Maharashtra

2011-07-05

M.L.TAHALIYANI, V.K.TAHILRAMANI

body2011
JUDGMENT M. L. TAHALIYANI, J. :- Appellant Sachin Gajajan Raut was original accused No.1 in Sessions Trial No.29 of 2004, decided by Additional Sessions Judge, Khamgaon on 10th April, 2008. The appellant along with his father Gajanan Raut was tried for the offences punishable under Sections 302 read with 34, 307 read with 34, 323 read with 34 and 506-II read with 34 of the Indian Penal Code. At the end of trial accused No.2 Gajanan was acquitted of all the charges framed against him. The appellant, however, was convicted of the offence punishable under Section 302 of the Indian Penal Code for having committed murder of Manohar Shivaji Mirge (hereinafter referred to as 'deceased') and was sentenced to suffer imprisonment for life and to pay a fine of RS. Five Hundred, in default to suffer rigorous imprisonment for three months. The appellant was acquitted of the other charges i.e. charges . under Section 307, 323 and 506-II of the Indian Penal Code. In the present appeal the appellant has challenged his above stated conviction for the offence punishable under Section 302 of the Indian Penal Code. 2. The alleged incident had occurred due to the dispute in respect of possession of the land belonging to one Chandrabhagabai. The land, in respect of which there was a dispute, was in possession of accused No.2 Gajanan. At this juncture it may be stated here that Master Pravin younger son of accused No.2 Gajanan was adopted by Chandrabhagabai. It is because of this reason, it appears, that the land in question was in possession of accused No.2 Gajanan and his sons accused No.1 Sachin and juvenile in conflict with law Master Pravin. The land in possession of accused No.2, appellant and the juvenile Pravin was purchased by deceased Manohar Mirge from Chandrabhagabai. The physical possession, however, had not been transferred. Therefore, there was a dispute. in respect of the said land. 3. On the date of incident i.e. 28th August, 2004 at about 9.00 a.m. the deceased, his wife Sunanda Mirge and his nephew Suresh Mirge had gone to the said land. Appellant, accused No.2 and the juvenile in conflict with law Pravin (hereinafter referred to as 'Pravin') were in adjoining portion of the land. There were some agricultural workers also who were working in the field of the appellant. Appellant, accused No.2 and the juvenile in conflict with law Pravin (hereinafter referred to as 'Pravin') were in adjoining portion of the land. There were some agricultural workers also who were working in the field of the appellant. It is alleged that as soon as the deceased and his wife along with their nephew Suresh entered the said field purchased by them from Chandrabhagabai, the appellant rushed towards them holding an axe in his hand. He was followed by accused No.2 Gajanan and Pravin. The workers working in the field of the appellant also reached there. It is further alleged that the appellant directed the deceased and his wife Sunanda (hereinafter referred to as 'the complainant') to remove themselves from the land. The complainant in return said that the appellant should mind his own business and should not interfere with the work of the complainant and the deceased. It is, at this point of time, it is alleged, that the appellant had inflicted a blow on the head of the complainant• by means of the said axe. The complainant fell down as she had sustained a bleeding injury on her head. The deceased tried to intervene and stopped the appellant and his workers but he was also assaulted by the appellant by means of axe. The appellant had allegedly inflicted axe blow on head of the deceased. The deceased immediately became unconscious and had fallen down. When Suresh, nephew of the deceased, tried to intervene he was also threatened by the appellant. The complainant has alleged in her first information report that accused No.2 Gajanan twisted her hand and Pravin had inflicted stick blow on her leg. Suresh had immediately rushed to vil1age Matargaon where the deceased, appellant and their families had been staying. In the meantime one unknown person had come to the rescue of the complainant and had taken her to Matargaon on a bicycle. She was taken to 1alamb Police Station. Her statement was recorded at the Police Station. On the basis of her statement First Information Report No.53/2004 was registered by police on 28th August, 2004 at about 10.00 a.m. against the appellant, his father Gajanan who was accused No.2 and juvenile Pravin under Sections 307,504,506 read with Section 34 of the Indian Penal Code. 4. It is stated that the nephew of the deceased and the complainant had informed the relatives of the deceased. 4. It is stated that the nephew of the deceased and the complainant had informed the relatives of the deceased. Hence, ambulance was sent to the spot and the deceased was brought to the Hospital at Khamgaon. He was declared dead before admission. 5. Police, on recording of First Information Report, had rushed to the place of the incident. Panchnama of the place of incident situated at Matargaon-Machhindrakhed road was drawn in presence of panchas. Blood stained earth was collected from the spot in presence of the panchas under the panchnama. The Police Officer also rushed to Khamgaon Hospital on getting information that the deceased had been admitted there. He drew inquest panchnama in presence of panchas. The dead body was sent for post mortem examination. Section 302 of Indian Penal Code was added to the First Information Report and further investigation continued. 6. During the course of further investigation, statements of various witnesses were recorded. The Medical Officer, who had examined the dead body, had found following injuries on the dead body of the deceased: 1. Incised wound over left parietal temporal region of diameter 7 cm x 4 cm x bone deep brain x brain deep. Margins were clear, II. Compound fracture of left parietal bone, haematoma which was brownish black in colour over parietal region was found on opening head portion, iii. Scul1 examination showed that there was fracture of left parietal bone of dimension 6 x 4 cm. Sub-dural and epidural hemotoma was found on examination of the brain and there was injury to parietal lob of brain of dimension 5 x 4 x 1 cm. 7. According to the Medical Officer Dr. Nilesh Tapre, all the injuries were ante-mortem. In his opinion, the deceased had died due to above stated injuries. He had also examined the axe seized by the police and had opined that the injuries could be caused by the said axe. 8. According to the prosecution case, the axe was recovered from the bushes near Babul tree situated near the spot of the incident in presence of the Police Officers and panchas on the basis of the statement made by the appellant. The clothes of the appel1ant, which he was wearing at the time of the incident, were seized during the course of investigation. The clothes of the appel1ant, which he was wearing at the time of the incident, were seized during the course of investigation. After completion of the investigation chargesheet was filed against the appellant and his father in the Court of Judicial Magistrate First Class. The case 'was committed to the Court of Session by the learned Magistrate. When the case came up for hearing before the learned Additional Sessions Judge, a charge under Section 302, 307, 323 and 506-II read with Section 34 of the Indian Penal Code was framed against the appellant and his father vide Exh.13. The same was explained to both the accused. They pleaded not guilty to all the charges. The defence of the appellant was that he had acted in private defence which had resulted in an injury to the deceased and in the result he had died. Accused No.2 had pleaded alibi and had stated before the learned trial Judge that he had been falsely implicated. 9. The prosecution had examined 14 witnesses in support of its case. During the course of the statements of the appellant and accused No.2 under Section 313 of the Code ofCrimina1 Procedure, the appel1ant had stated before the learned trial Judge that he and his family were in possession of the disputed land and Moog (lentil) crop was ready in his field. It was further stated by him that the deceased and his wife complainant and their other relatives, including Suresh Mirge and Annapurnabai, had committed trespass in the field and started uprooting the crop. The appellant tried to convince them but they did not listen. The complainant started abusing the appellant. Despite that the appellant tried to tell the complainant that she should not behave unreasonably. In the meantime the complainant and Annapumabai caught hold of both the legs of the appellant and they started assaulting him. It was further stated that the deceased had thrown axe towards his nephew Suresh and asked Suresh to assault the appellant by means of the said axe. It was the case of the appellant that while Suresh was attempting to assault the appellant and while the appellant was warding off the blows the deceased had sustained axe blow due to the alleged assault on the part of Suresh. It was also case of the appellant that he himself had called ambulance in which the deceased was taken to hospital. It was also case of the appellant that he himself had called ambulance in which the deceased was taken to hospital. As such, in brief, it was the case of the appellant that he had not committed any offence as alleged and that on the contrary he had taken care to see that the deceased reaches the hospital after he was injured so that he could be saved. 10. As far as accused No.2 is concerned, he had filed his written statement after recording of his statement under Section 313 of Cr.P.c. It was his case that he was not present in the field at the time of the incident and that he had gone to house of his sister as aunty of hi 5 brother-in-law had died. As such it was the case of accused No.2 that he was at the house of his brother-in-law. He came to know about the incident after his arrival at his residence. Accused No.2 had examined one defence witness i.e. D.W. No.1 to establish his alibi. 11. After hearing both sides the learned trial Judge accepted the plea of accused No.2 that he was not present at the spot and that he had gone to attend funeral of aunty of D.W. No.1 Ananta Alshi. Accused No.2 was accordingly acquitted of all the charges. The learned trial Judge, however, rejected the plea of the appellant that he had acted in private defence. 12. The learned Advocate Mr. Shashank Manohar is heard on behalf of the appellant and learned Additional Public Prosecutor Mrs. lachak is heard on behalf of the respondent/ State. 13. During the course of arguments, Mr. Shashank Manohar has submitted that the incident involving dispute between the deceased and his relatives and the appellant and his workers is not denied. It was submitted that it was the defence of the appellant since beginning that he had acted in self defence. It was submitted by the learned Advocate that it is abundantly clear from the evidence that the appellant and his family members were in possession of the disputed land and Moog crop was ready on the land. The evidence, it is stated, shows that the complainant and her husband deceased and their nephew Suresh had committed trespass in the land in possession of the appellant and had uprooted the ready Moog crop thereby causing loss to the appellant. The evidence, it is stated, shows that the complainant and her husband deceased and their nephew Suresh had committed trespass in the land in possession of the appellant and had uprooted the ready Moog crop thereby causing loss to the appellant. The deceased complainant and their nephew Suresh had committed offence of criminal trespass and mischief. It was submitted that if at all it is accepted that the injury was inflicted by the appellant there is ample evidence on record to show that the appellant had acted in defence of his property. 14. The learned Advocate Mr. Manohar has submitted that at the most what can be concluded is that the appellant had exceeded his right of private defence to defend his property. In brief, it is submitted that the established facts do not prove that the appellant had committed offence of murder. The submission of Mr. Manohar is that the appellant at the most can be said to have committed an offence of culpable homicide not amounting to murder punishable under Section 304-1 of the Indian Penal Code. 15. This being the defence of the appellant and the arguments on behalf of the appellant, area of examination of evidence is limited to the extent of eyewitnesses. This Court is of the view that in view of the clear statement made on behalf of the appellant, it is not necessary to examine the evidence of witnesses like panch witnesses who had been present at the time of alleged recovery of weapon and clothes. It is also not necessary to go into details of evidence of panch witnesses who were present at the time of inquest panchnama. At the same time, since cause of death is not disputed, it is not necessary to go into the details of evidence of Medical Officer who had examined dead body of Manohar Mirge. It, therefore, follows that the evidence with respect to transportation of articles to the Forensic Science Laboratory and the report of Forensic Science Laboratory are not necessary to be examined. 16. In view of the defence taken by the appellant and the arguments advanced before us, the evidence of P.W.8 Sunanda, who is complainant and wife of deceased Manohar, and P.W.10 Suresh, who was present on the spot, needs to be examined thoroughly. 16. In view of the defence taken by the appellant and the arguments advanced before us, the evidence of P.W.8 Sunanda, who is complainant and wife of deceased Manohar, and P.W.10 Suresh, who was present on the spot, needs to be examined thoroughly. At the same time, it is also necessary to take note of the fact that few of the witnesses who were admittedly present on the spot are not examined by the prosecution. P.W. 14 is Police Officer who has investigated this case. He, in his evidence, has stated that investigation reveal that apart from P.W. 8 and 10, Bhagwant Khanderao, Annapurna Khanderao, Madhukar Akhare, Ashok Wanare and Mahadeo Wankhade were also eyewitnesses. None of these witnesses have been examined by the prosecution for which no reasonable exp1anation was given to the learned trial Court. It is also to be noted that though the investigating officer has stated that the disputed land was in possession of the complainant and her deceased husband a day prior to the date of the incident, the complainant herself, in her evidence, has stated that the disputed land was in possession of the appellant and his family members. She has also stated that there was a dispute in respect of the possession of the land. The relevant portion of evidence of P.W. 8 is paragraph 2 of her evidence in which she has stated that the said land was in actual physical possession of accused No.2 Gajanan. This land was purchased by Mirge family one month prior to the date of the incident. P.W. 8 has also stated in her evidence that she had purchased the land from Smt. Chandrabhagabai on two occasions. One part was purchased prior to the incident and second part was purchased after the incident. The field, where the incident took place, was admittedly purchased by P. W. 8 after the incident. P.w. 8 has admitted that the disputed land was purchased by her after the incident. P.W. 10 in his cross-examination has admitted that there was a dispute between the deceased and accused No.2 over possession of the said field. P.w. 10 has also admitted that they had gone to take possession of the field. It is further admitted by him that as soon as they reached the field P.w. 8 asked P.w. 10 to start uprooting Moog plants. P.w. 10 has also admitted that they had gone to take possession of the field. It is further admitted by him that as soon as they reached the field P.w. 8 asked P.w. 10 to start uprooting Moog plants. It has thus come on record in so many words that the appellant and his family members were in possession of the disputed land and that the deceased, his wife and Suresh had gone there to take forcible possession of the land and they had started uprooting the Moog plants. The Investigating Officer has not collected any evidence as to who was the owner of the crop. However, from the material on record it is abundantly clear that the appellant and his family members were owners of the crop. 17. Since the appellant claims right of private defence, it becomes abundantly clear that the appellant admits having inflicted injury on the deceased. It was, therefore, necessary for the trial Court to examine the evidence from that point of view. The learned trial Court should have taken note of the fact that ambulance had come on the spot to take the deceased to the hospital and that the appellant claims that the ambulance was called by him. The Investigating Officer, in his evidence, has clearly admitted that he did not make any investigation as to who had called the ambulance. He had not recorded statement of driver of the ambulance. It was suggested to him that the ambulance was cal1ed by the appel1ant and therefore, the Investigating Officer had intentionally avoided to investigate that part and bring it on record that it was the appellant who had cal1ed the ambulance. This suggestion assumes importance because it was alleged by the learned Advocate Mr. Shashank Manohar that the Investigating officer, through out the investigation, has acted in partisan manner and has supported the case of the complainant and her family members. In this regard this Court has also taken note of the findings given by the trial Court with regard to the other offences al1egedly committed by the appel1ant and the accused No.2. We have gone through the judgment of the trial Court and we find that the trial Court has disbelieved the evidence of P.W.8 and 10 in that regard. In this regard this Court has also taken note of the findings given by the trial Court with regard to the other offences al1egedly committed by the appel1ant and the accused No.2. We have gone through the judgment of the trial Court and we find that the trial Court has disbelieved the evidence of P.W.8 and 10 in that regard. The trial Court has specifically stated that P. W. 8 and 10 have suppressed material facts and therefore, their evidence with regard to the assault on P.w. 8 complainant could not be disbelieved. However, we do not find it necessary to examine whether with this kind of finding with regard to the evidence of P. W. 8 and 10 on the point of one incident, rest of the evidence also could have been rejected. The reason simply is that, it was not argued before us that the evidence of P.W. Nos. 8 and 10 should have been rejected in toto in view of the serious infirmities found in their. evidence with regard to the incident of assault on P.w. 8 which had occurred simultaneously with the incident of assault on the deceased. In view of this, we have to examine whether the right of private defence was available to the appellant and if yes had he exceeded the sale. While examining these two issues we can lot lose sight of the fact that some of the matenal eyewitnesses have not been examined and evidence of P.W. Nos. 8 and 10 have been partly rejected by the learned trial Court. 18. The issue before us today is whether the right of private defence i.e. to defend the property was available to the appellant and whether while exercising that right he had exceeded the same. To examine this issue, in first place, it is necessary to see whether the appellant and his family members were in possession of the disputed land and whether the Moog crop on the land belonged to the appellant and his family. It is also necessary for us to examine whether uprooting of Moog crop by P. W. 10 Suresh at the instance of P. W. 8 and refusal on the part of P. W. 8 to stop uprooting gave right to the appellant to defend his property in the manner he has defended. It is also necessary for us to examine whether uprooting of Moog crop by P. W. 10 Suresh at the instance of P. W. 8 and refusal on the part of P. W. 8 to stop uprooting gave right to the appellant to defend his property in the manner he has defended. In this regard, at the outset, we are of the view that there is ample evidence on record including admission on the part of P. W. 8 that disputed land was in possession of the appellant and his family members. As far as Moog crop is concerned, the appellant claimed to be the owner of Moog crop. P.W. 8 and 10 have not claimed ownership of Moog crop. The Investigating Officer has not investigating this part of the case independently and impartially and therefore, he had not investigated as to who had cultivated the Moog crop. He did not make any investigation in this regard. He, however, was very emphatic in his statement in cross-examination that the deceased and his family members were in possession of the disputed field on 28th August, 2004. It is noted that the incident itself had occurred on 28th August, 2004. The Investigating Officer has not investigated as to since when the deceased and his family members were in possession of the disputed land. He, however, has admitted that the appellant and his family members had possession over the disputed field prior to the date of incident. Reading of evidence in this regard as a whole of all the concerned witnesses gives a clear impression that the appellant and his family members were in possession of the disputed field. A suit was filed against Chandrabhagabai by accused No.2 Gajanan on behalf of Pravin. P. W. 8 has given admission that the disputed field was purchased by P.w.8 and her husband after the incident. There could not have been any other strong evidence to establish that the appellant and his family members were in possession of the disputed field on the date of the incident. P. W: 10 had admitted that they had gone to take possession of the disputed field on the date of incident. It, therefore, follows unmistakably that the Moog crop belonged to the appellant and his family members, as such the appellant had right to defend his property from any aggressor or distructor of the property. 19. P. W: 10 had admitted that they had gone to take possession of the disputed field on the date of incident. It, therefore, follows unmistakably that the Moog crop belonged to the appellant and his family members, as such the appellant had right to defend his property from any aggressor or distructor of the property. 19. Moot question which arises for determination is as to what extent this right was available to the appellant. Section 97 of Indian Penal Code gives a general right of defence against ones own body and the body of anybody else and against any offence affecting the human body. It also gives general right to defend the property whether movableor immovable belonging to the defendant or any other person against any act which is 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. Section 103 of Indian Penal Code explains as to when the right of private defence of property extends to causing death. Section 103 runs as under: "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 wrong-doer, 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 hereinafter enumerated, namely: First: Robbery ; Secondly. - House-breaking by night; Thirdly – Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property; Fourthly - 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 defence is not exercised. Fifthly - Mischief by fire or any explosive substance committed on any property used or intended to be used for the purpose of Government or any local authority, statutory body or company owned or contro11ed by Government or railway or on any vehicle used or adapted to be used, for the carriage of passengers for hire or reward. Fifthly - Mischief by fire or any explosive substance committed on any property used or intended to be used for the purpose of Government or any local authority, statutory body or company owned or contro11ed by Government or railway or on any vehicle used or adapted to be used, for the carriage of passengers for hire or reward. " Right available under Section 103 is restricted by the restrictions mentioned in Section 99 of the Indian Penal Code. Section 99 runs as under: "99. Acts against which there is no right of private defence - There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law. There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in good faith under colour c.f his office, though that direction may not be strictly justifiable by law. 'There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Extent to which the right may be exercised.- The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence." To examine whether the appellant had a right of private defence to the extent of causing death of the deceased or otherwise, it is also necessary to go through Section 104 of the Indian Penal Code, which runs as under: "104. When such right extends to causing any harm other than death. - If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of any harm other than death." 20. It is thus, clear from the provisions of Section I 04 that if the offence which has occasioned right of private defence in favour of the accused is theft, mischief or criminal trespass or not of the nature enumerated in Section 103 of the Indian Penal Code, the right of private defence extends only to cause ham1 other than death. It is abundantly clear that the offence which was being committed by the opposite party did not fall under any of the categories mentioned in Section 103 of the Indian Penal Code i.e. robbery, house breaking by night, mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as human dwelling, or as a place for custody of the property and theft, mischief or house trespass under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, ifsuch right of private defence is not exercised. 21. From the discussion of facts it is clear that offences of mischief and trespass were allegedly being committed by deceased, complainant and others. But the said offence of mischief was not sufficient enough to cause reasonable apprehension that death of the appellant or grievous hurt to the appellant or any of his companions would have been caused. Therefore, we are of the view that the appellant had no right of private defence to cause death of the deceased in the circumstances of the case. 22. It is stated in the earlier paragraphs of this judgment that the complainant, deceased and Suresh had indulged in offences of mischief and trespass. Suresh was uprooting Moog crop. It is also stated by us that the property was in possession of the appellant. We have also concluded that the circumstances clearly indicate that the Moog crop was belonging to the appellant. In the circumstances the offences allegedly committed by the complainant, deceased and Suresh would fall under the definitions mischief and criminal trespass. 23. It is, therefore, clear that the appellant had a right of private defence available under Section 104 of the Indian Penal Code and not under Section 103 of the Indian Penal Code. In addition to this, the offence was not premeditated, axe is usual instrument carried by the farmers or agricultural workers in the field. 23. It is, therefore, clear that the appellant had a right of private defence available under Section 104 of the Indian Penal Code and not under Section 103 of the Indian Penal Code. In addition to this, the offence was not premeditated, axe is usual instrument carried by the farmers or agricultural workers in the field. It cannot be said that the axe was carried by the appellant with an intention to cause death of the deceased. From the conduct of the appellant it can be said that he had exercised right of private defence in good faith to defend his property. We have also taken note of the fact that the totality of the circumstances clearly indicate that ambulance was called by the appellant. It, therefore, clearly shows that the appellant had no intention to cause death of the deceased. However, since the weapon used by the appellant was axe, it can be said that the appellant had intention to cause injury by means of axe. An injury had been caused to the deceased by the appellant. The injury caused by the appellant is found to be sufficient to cause death in ordinary course of the nature. In view of the observations of the Hon'ble Supreme Court in the matter of Virsa Singh Vs. State of Punjab, reported at 1958 CRI. L.J. 818: (2007 ALL SCR (O.C C.) 33], it is not necessary to be stated here that the knowledge of the appellant whether the injury could cause death in ordinary course of nature was irrelevant. 24. In brief, the prosecution had established that the appellant had caused injury to the deceased by means of an axe with an intention to cause the said injury. The said injury was found to be sufficient to cause death in ordinary course of nature. The case of the appellant, therefore, falls under clause thirdly of the Indian Penal Code. At the same time, case of the appellant also falls under exception 2 of Section 300 of the Indian Penal Code. The appellant had exercised right of private defence in good faith to defend his property. The offence was committed without premeditation and without any intention to cause more harm than it was necessary for the purpose of defence of the property. It is unfortunate that it has caused more harm than the intended harm. The appellant had exercised right of private defence in good faith to defend his property. The offence was committed without premeditation and without any intention to cause more harm than it was necessary for the purpose of defence of the property. It is unfortunate that it has caused more harm than the intended harm. Bonafides of the appel1ant could be seen from the fact that the appellant him self had called ambulance. As such, it can safely be said that: (1) there was no premeditation; (2) there was no intention to cause more harm than it was necessary for the purpose of defence of property ; (3) right of private defence was exercised in good faith to defend the property. (4) the appellant had exceeded the right of private defence. 25. Since the right of private defence was available to the appellant under Section 104 and not under Section 103 of the Indian Penal Code, the appel1ant had exceeded his right of private defence. In a case arising out of similar set of facts the Hon 'ble Supreme Court in the matter of Nathan Vs. State of Madras, reported at AIR 1973 SC 665 has said at paragraphs 6 and 7 as under: "6. Once it is held that the possession of the land was not with P. W. 3 and that the objection raised by the accused party to harvesting of the crop by P.w. 3 and his men, was genuine the whole occurrence takes on a different aspect. It does not appear that the harvesting party was armed with any deadly weapons and there could not have been any fear of death or grievous hurt on the part of the appellant and his party. Under Section 104, Indian Penal Code their right therefore, was limited to the causing of any harm other than death. It should, therefore, be held that the accused, though they were exercising the right of private defence of property had exceeded that right. Under Section 104, Indian Penal Code their right therefore, was limited to the causing of any harm other than death. It should, therefore, be held that the accused, though they were exercising the right of private defence of property had exceeded that right. The case would, therefore, fall under Exception 2 to Section 300, Indian Penal Code and the offence committed by the appellant should be held to amount to culpable homicide not amounting to murder, as it was committed in good faith of the right of private defence of property butit exceeded the power given to him by law and caused the death of the person against whom he was exercising such right of defence. 7. The appeal is, therefore, partly allowed and the sentence of death passed on the appellant is modified to one of life imprisonment." We have also taken note of the observations of the Hon'ble Supreme Court in the matter of Deo Narain Vs. State of V.P., reported at 1973 CRI.L.J. 677 also. The Hon 'ble Supreme Court in paragraph 5 has observed as under: "5. In our opinion, the High Court does seem to have erred in law in convicting the appellant on the ground that he had exceeded the right of private defence. What the High Court really seems to have missed is the provision of law embodied in Section 102, Indian Penal Code. According to that section the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed, and such right continues so long as such apprehension of danger to the body continues. The threat, however, must reasonably give rise to the present and imminent, and not remote or distant danger. This right rests on the general principle that where a crime is endeavoured to be committed by force, it is lawful to repel that force in self-defence. To say that the appellant could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in the above section. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. It is a preventive and not punitive right. The right to punish for the commission of offences vests in the State (which has a duty to maintain law and order) and not in private individuals. If after sustaining a serious injury there is no apprehension of further danger to the body then obviously the right of private defence would not be available. In our view, therefore, as soon as the appellant reasonably apprehended danger to his body even from a real threat on the part of the party of the complainant to assault him for the purpose of forcibly taking possession of the plots is dispute of or obstructing their cultivation, he got the right of private defence and to use adequate force against the wrongful aggressor in exercise of that right. There can be little doubt that on the conclusions of the two courts below that the party of the complainant had deliberately come to forcibly prevent or obstruct the possession of the accused persons and that this forcible obstruction and prevention was unlawful the appellant could reasonably apprehend imminent and present danger to his body and to his companions. The complainants were clearly determined to use maximum force to achieve their end. He was thus fully justified in using force to defend himself and if necessary also his companions against the apprehended danger which was manifestly imminent. Again, the approach of the High Court that merely because the complainant's party had used lat his, the appellant was not justified in using his spear is no less misconceived and insupportable. During the course of a marpeet, like the present, the use of a lathi on the head may very well give rise to a reasonable apprehension that death or grievous hurt would result from an injury caused thereby. It cannot be laid down as a general rule that the use of a lathi as distinguished from the use of a spear must always be held to result only in milder injury. Much depends on the nature of the lathi, the part of the body aimed at and the force used in giving the blow. Indeed, even a spear is capable of being so used as to cause a very minor injury. Much depends on the nature of the lathi, the part of the body aimed at and the force used in giving the blow. Indeed, even a spear is capable of being so used as to cause a very minor injury. The High Court seems in this connection to have overlooked the provision contained to section 100, I. P.C. We do not have any evidence about the size or the nature of the lathi. The blow, it is known, was aimed at a vulnerable part like the head. A blow by a lathi on the head may prove instantaneously fatal and cases are not unknown in which such a blow by a lathi has actually proved instantaneously fatal. If, therefore, a blow with a lathi is aimed at a vulnerable part like the head we do not think it can be laid down as a sound proposition of law that in such cases the victim is not justified in using his spear in defending himself. In such moments of excitement or disturbed mental equilibrium it is somewhat difficult to expect parties facing grave aggression to coolly weigh. as if in golden scales. and calmly determine with a composed mind as to what precise kind and severity of blow would be legally sufficient for effectively meeting the unlawful aggression. No doubt, the High Court does seem to be aware of this aspect because the other accused persons were given the benefit of this rule. But while dealing with the appellant's case curiously enough 'the High Court has denied him the right of private defence on the sole ground that he had given a dangerous blow with considerable force with a spear on the chest of the deceased though he himself had only received a superficial lathi blow on his head. This view of the High Court is not only unrealistic and unpractical but also contrary to law and indeed even in conflict with its own observation that in such cases the matter cannot be weighed in scales of gold." (Emphasis ours) 26. From what has been said by the Hon'ble Supreme Court it can be gathered that the right of private defence commences as soon as there is apprehension. It is of preventive nature and not of punitive nature. Person who is under apprehension is not supposed to wait till he is injured. From what has been said by the Hon'ble Supreme Court it can be gathered that the right of private defence commences as soon as there is apprehension. It is of preventive nature and not of punitive nature. Person who is under apprehension is not supposed to wait till he is injured. As a preventive measure, the right of private defence is available to the person who is under threat. Duty of the Court is to examine whether the right of private defence was available to the accused and to what extent right was available. Once the Court come to the conclusion that the right was available to the accused and other requirements of Exception 2 of Section 300 of the Indian Penal Code are also fulfilled, the accused gets benefit of the said exception and his case will fall under Section 304-1 of the Indian Penal Code. 27. The Hon'ble Supreme Court in a recent judgment reported in the matter of Ranveer Singh Vs. State of M.P., reported at 2009 CRI. L.J. 1534 while dealing with the issue of right of private defence has said that it is question of fact to be determined on t 1e facts and circumstances of each case. The Hon'ble Supreme Court at paragraph No.7 of the said judgment has said: ".., Whether in a particular set of circumstances, a person legitimately acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider al the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such a plea. ..." 28. In the present case, after having considered all the facts and the circumstances in which the deceased had died and after having gone through the above cited judgments of the Hon'ble Supreme Court, we have come to the conclusion that the right of private defence was available to the appellant under Section 104 and not under Section 103 of the Indian Penal Code. He, therefore, could not have caused death of the deceased in exercise of right of private defence. He has definitely exceeded his right. However, after careful consideration of all the circumstances and the conduct of the appellant, we have come to the conclusion that his case falls under exception 2 of Section 300 of the Indian Penal Code. 29. As such, we are of the view that the finding given by the learned trial Court that right of private defence was not at all available to the appellant is erroneous. In our view, right of private defence was available to the appellant for the reasons stated herein above and he has exceeded the same. Since the appellant has exceeded his right of private defence and his case, as stated earlier, falls under Exception 2 of Section 300 of the Indian Penal Code, we hold him guilty for the offence punishable under Section 304-1 of the Indian Penal Code. 30. The judgment and order of the learned trial Court to that extent will have to be modified. We have given our anxious consideration to the facts of the case and the circumstances in which the offence has been committed. It is stated at more than one places in the text of the judgment that the appellant had acted in good faith to defend his property. The only circumstance adverse to the appellant is that he had exceeded his right of private defence. At the same time we have also taken note of the fact that the opponents were aggressor and they did not pay any heed though they were advised to be away from the field in possession of the appellant. The appellant had been in peaceful physical possession of the land in question where trespass and mischief was being committed by the opponents including complainant-Sunanda and the deceased. 31. In the circumstances, we are of the view that the punishment of seven years will serve the ends of justice. Hence, we modify the judgment and order of the trial Court as under: The appeal is partly allowed. The appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code. He is convicted of the offence punishable under Section 304-T of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for seven years and to pay a fine of RS. The appellant is acquitted of the offence punishable under Section 302 of the Indian Penal Code. He is convicted of the offence punishable under Section 304-T of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for seven years and to pay a fine of RS. Five Hundred in default to suffer simple imprisonment for three months. The appel1ant had been in custody from the date of his arrest i.e. 28th August, 2004 till he was released on bail by this Court i.e. 13th August, 2010. The period already undergone by the appellant be set-off against the punishment imposed by this Court. The appeal, accordingly, stands disposed of. Ordered accordingly.