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2022 DIGILAW 1132 (MP)

Kailashchandra Gavli v. State of Madhya Pradesh

2022-09-13

SATYENDRA KUMAR SINGH, SUBODH ABHYANKAR

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JUDGMENT Subodh Abhyankar, J. - This criminal appeal has been filed under Section 374(2) of Cr.P.C. against the judgement dated 09.02.2012, passed in Sessions Trial No.215/2009 by Additional Sessions Judge, Agar, District Shajapur (MP) whereby finding the appellant guilty, the learned Judge of the trial Court has convicted him under Section 302 of IPC and sentenced to undergo rigorous imprisonment for life with fine of Rs.5,000/- and in default of payment of fine further undergo three months simple imprisonment. 2. In brief, the facts giving rise to the present appeal are that on 10.06.2009 at around 11 O' clock in the morning the incident took place at Master Colony, Agar in front of Sodan Singh's house wherein the deceased Suresh was murdered by assault on his head by spade (Fawda). In the incident one Kuldeep was also assaulted, hence, initially the FIR under Section 307, 294, 323, 506/34 of IPC has been registered, however, after the death of Suresh, Section 302 was also added. The case of the prosecution is that earlier, deceased Suresh had sold a plot to Sodan Singh, but later on Sodan Singh came to know that the plot is disputed, hence, Suresh told him that he would get the boundary wall constructed on the said plot and on the date of incident i.e. on 10.06.2009, when the boundary wall was being constructed, the appellant approached the spot and objected to the construction of the boundary wall, when this was intimated to the deceased Suresh, he reached on the spot along with his son Kuldeep, which led to scuffle between the parties in which appellant Kailash assaulted the deceased with a spade (Fawda) on his head and other two persons were also assaulted Suresh and Kuldeep. Suresh was taken to the Agar Hospital and the matter was reported to the police. Subsequently, Suresh was taken to Dewas, where he died while being treated. After the charge-sheet was filed, the learned Judge of the trial Court recorded the evidence and convicted the appellant under Section 302 of IPC while other co- accused persons, namely, Amit and Rakesh were acquitted. Hence this appeal. 3. Subsequently, Suresh was taken to Dewas, where he died while being treated. After the charge-sheet was filed, the learned Judge of the trial Court recorded the evidence and convicted the appellant under Section 302 of IPC while other co- accused persons, namely, Amit and Rakesh were acquitted. Hence this appeal. 3. Shri Girish Desai, learned counsel appearing for the appellant has submitted that the appellant has been falsely implicated in the case and even otherwise it is not a case falling under Section 302 IPC as it is a case of property dispute as the appellant happens to be the real brother of the deceased Suresh who had sold the family property to Sodan Singh without their being any partition and thus, at the most the case would fall under the exception of right of private defence of property extending to causing death. It is also submitted that the appellant has also suffered injuries on his head and there is no explanation about the same in the charge-sheet. 4. Counsel has also drawn the attention of this Court to the defence witnesses. DW-1 Dr. R. L. Malvi had examined the appellant on 16.06.2009 at Primary Health Centre, Agar and had found four injuries on different parts of his body including his head. He had also examined appellant's son Amit on that day and had found a blunt head injury. The other accused Amit had also suffered injury on his cheek. He had also examined appellant's other son Rakesh and had found abrasions on his body. The injuries were around 5 to 7 days old. DW-2 Harishchandra has proved the complaint Ex.D/6 lodged by appellant's son Rakesh wherein it was stated that Suresh (deceased) had sold the land more than his share. 5. DW-3 is the appellant Kailash himself, who is a retired Road Transport employee. According to him the land was purchased by him, his brother Ashok, his father Nathulal, Yashoda Bai and Kusum jointly and his father died in the year 2003. who had 1/5th share in the property and, hence, after the death of his father, his 1/5th share was mutated in the names of he himself, his two brothers Ashok, Suresh (deceased), his sister Pushpa and his mother Yashoda Bai. who had 1/5th share in the property and, hence, after the death of his father, his 1/5th share was mutated in the names of he himself, his two brothers Ashok, Suresh (deceased), his sister Pushpa and his mother Yashoda Bai. Deceased Suresh had 15 aare land in his favour, however, he had sold around 75 to 80 aare land on his own and thereafter construction of boundary wall was started on the said plot, but when he went there and objected to it, the mason (mistri) called the deceased Suresh and thus, Suresh and his son Kuldeep came on a motorcycle with a bat and started assaulting him and in this scuffle, Suresh fell on a spade (Fawda) which hit him on his head and his(appellant's) son Amit took Suresh to the Hospital. Appellant Kailash has also proved various reports/complaints lodged by him before the various authorities to demonstrate that there was property dispute going on between the parties. 6. DW-4 Jaswant Singh Rawat is the Sub Registrar, who had proved the sale deed executed by Suresh to other persons. Thus, counsel has submitted that the appellant has been falsely implicated in the case despite the fact that the deceased himself was responsible for the dispute between the parties and in any case, the case does not fall under Section 302 of IPC and at the most a case under Section 304 Part II of IPC would be made out and as the appellant is in jail since more than 10 years, his sentence deserves to be modified to the extent he has already undergone. 7. Counsel for the respondent/State, on the other hand, has opposed the prayer. 8. Heard counsel for the parties and perused the record. 9. So far as the right of private defence of property extending to cause death is concerned, the Supreme Court, in the case of Subramani v. State of T.N., (2002) 7 SCC 210 : 2002 SCC (Cri) 1659, at page 218 has held as under:- '18. We observe that the State has not preferred any appeal against the acquittal of the appellants of the charge under Sections 302 and 302/34 IPC. The High Court on a finding that the appellants had exceeded their right of private defence of property, convicted and sentenced them under Section 304 Part I read with Section 34 IPC. We observe that the State has not preferred any appeal against the acquittal of the appellants of the charge under Sections 302 and 302/34 IPC. The High Court on a finding that the appellants had exceeded their right of private defence of property, convicted and sentenced them under Section 304 Part I read with Section 34 IPC. Counsel for the appellants rightly submitted that the conviction of the appellants, in the facts of this case, under Section 304 Part I read with Section 34 IPC is clearly illegal. The High Court having found that the appellants acted in exercise of their right of private defence, the conviction of all the appellants with the aid of Section 34 was unwarranted. In our view the submission has force and must be accepted. 19. It is well settled that once it is held that the accused had the right of private defence and reasonably apprehended that death or grievous bodily hurt would be the consequence if the right of private defence was not exercised, the right of private defence of property extended under Section 103 IPC to voluntarily causing the death of the aggressor subject to restrictions mentioned in Section 99 IPC. In this case, if the appellants acted in exercise of their right of private defence of property, it cannot be said that they committed a criminal act in furtherance of a common intention, because Section 96 IPC makes it abundantly clear that nothing is an offence which is done in the exercise of the right of private defence. They did not intend to commit any criminal act or to do anything which may be described as unlawful. Their object was not to kill the deceased but to protect their property. It may be, that in a given case it may be found on the basis of material on record that some of them may have exceeded their right of private defence and for that they may be individually held responsible. But it cannot be said that the murder was committed pursuant to a common intention to commit such crime. In somewhat similar circumstances in State of Bihar v. Nathu Pandey this Court considered the question as to whether the accused could be convicted under Section 302 read with either Section 149 or Section 34 IPC. It observed: (SCC p. 210, para 8) '8. In somewhat similar circumstances in State of Bihar v. Nathu Pandey this Court considered the question as to whether the accused could be convicted under Section 302 read with either Section 149 or Section 34 IPC. It observed: (SCC p. 210, para 8) '8. In order to attract the provisions of Section 149 the prosecution must establish that there was an unlawful assembly and that the crime was committed in prosecution of the common object of the assembly. Under the fourth clause of Section 141 as assembly of five or more persons is an unlawful assembly if the common object of its members is to enforce any right or supposed right by means of criminal force or show of criminal force to any person. Section 141 must be read with Sections 96 to 106 dealing with the right of private defence. Under Section 96 nothing is an offence which is done in the exercise of the right of private defence. The assertion of a right of private defence within the limits prescribed by law cannot fall within the expression 'to enforce any right or supposed right' in the fourth clause of Section 141.' 20. It, therefore, follows that the intention of the appellants was not to cause the death of Jayavelu but they had acted in exercise of their right of private defence. While acting in exercise of the right of private defence, the appellants cannot be said to be motivated by a common intention to commit a criminal act. Common intention has relevance only to the offence and not to the right of private defence. 21. The question still arises whether the appellants can be convicted for having exceeded their right of private defence. In the instant case we are inclined to hold that the appellants had initially acted in exercise of their right of private defence of property, and later in exercise of the right of private defence of person. It has been found that three of the appellants were also injured in the same incident. Two of the appellants, namely, Appellants 2 and 3 had injuries on their head, a vital part of the body. Luckily the injuries did not prove to be fatal because if inflicted with more force, it may have resulted in the fracture of the skull and proved fatal. Two of the appellants, namely, Appellants 2 and 3 had injuries on their head, a vital part of the body. Luckily the injuries did not prove to be fatal because if inflicted with more force, it may have resulted in the fracture of the skull and proved fatal. What is, however, apparent is the fact that the assault on them was not directed on non-vital parts of the body, but directed on a vital part of the body such as the head. In these circumstances, it is reasonable to infer that the appellants entertained a reasonable apprehension that death or grievous injury may be the consequence of such assault. Their right of private defence, therefore, extended to the voluntarily causing of the death of the assailants. 22. While it is true that in exercise of the right of private defence only such force may be used as may be necessary, but it is equally well settled that at a time when a person is faced with imminent peril of life and limb of himself or other, he is not expected to weigh in golden scales the precise force needed to repel the danger. Even if he, in the heat of the moment, carries his defence a little further than what would be necessary when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it. (See Mohd. Ramzani v. State of Delhi.) 25. In the instant case the facts found by the High Court are that the appellants were in possession of the plot in question for over 50 years. On the previous evening the prosecution party had attempted to dispossess the appellants but on the protest of the appellants they gave up their plan and retreated. On the following morning, they again attempted to take possession of the land by ploughing the same and exercising right of ownership. It was at this stage that the appellants appeared on the scene and protested, which ultimately resulted in an assault on them by the members of the prosecution party. In these facts, having regard to the principle aforesaid, it cannot be contended that the members of the prosecution party were in possession of the land in question or that the appellants had no right to evict the trespassers and to assert their right to possess the land. In these facts, having regard to the principle aforesaid, it cannot be contended that the members of the prosecution party were in possession of the land in question or that the appellants had no right to evict the trespassers and to assert their right to possess the land. Certainly the prosecution party was not in 'settled possession'. 26. Mr Balakrishnan then submitted that it is not clear as to who started the assault. The prosecution chose to suppress the genesis and the origin of the occurrence and presented a distorted version before the court. The prosecution feigned ignorance about the injuries suffered by the appellants. It is well settled that the onus which rests on the accused person under Section 105 of the Evidence Act to establish his plea of private defence is not as onerous as the unshifting burden which lies on the prosecution to establish every ingredient of the offence with which the accused is charged, beyond reasonable doubt. In the instant case, though the appellants had suffered injuries on vital parts of the body, even though simple, the prosecution failed to give any explanation for such injuries. We are not persuaded to accept the submission of learned counsel for the State that the injuries being simple, the prosecution was not obliged to give any explanation for the same. Having regard to the facts of the case the omission on the part of the prosecution to explain the injuries on the person of the accused may give rise to the inference that the prosecution is guilty of suppressing the genesis and the origin of the occurrence and had thus not presented the true version. It may well be that the prosecution witnesses were lying on a material point and, therefore, render themselves unreliable, or it may be that the defence version explaining the injuries on the person of the accused is probably the true version of the occurrence which certainly throws a serious doubt on the prosecution case. It may well be that the prosecution witnesses were lying on a material point and, therefore, render themselves unreliable, or it may be that the defence version explaining the injuries on the person of the accused is probably the true version of the occurrence which certainly throws a serious doubt on the prosecution case. In these circumstances and having regard to the findings recorded by the High Court, we are satisfied that the appellants were fully justified in defending their possession as well as their person, having regard to the fact that they were assaulted by the members of the prosecution party who were the aggressors and who had trespassed upon the land which had been in continuous possession of the appellants for over 50 years. They had not exceeded their right of private defence of property and person because the facts and circumstances justify their entertaining a reasonable apprehension that grievous hurt may be caused to them, if not death, by the assailants. 27. It was then submitted by Mr Balakrishnan that the appellants could have taken recourse to move the authorities, in the facts and circumstances of the case. His submission is that they did not at all have the right of private defence. This submission must be rejected in view of the clear finding recorded by the High Court that the appellants had acted in exercise of their right of private defence, but exceeded that right. Unfortunately the High Court did not consider which of the appellants, if any, exceeded the right of private defence. Moreover the right of private defence must be liberally construed. It was observed in Munshi Ram v. Delhi Admn.: 'Law does not require a person whose property is forcibly tried to be occupied by trespassers to run away and seek the protection of the authorities. The right of private defence serves a social purpose and that right should be liberally construed. Such a right not only will be a restraining influence on bad characters but it will encourage the right spirit in a free citizen. There is nothing more degrading to the human spirit than to run away in the face of peril.' (emphasis supplied) 10. Such a right not only will be a restraining influence on bad characters but it will encourage the right spirit in a free citizen. There is nothing more degrading to the human spirit than to run away in the face of peril.' (emphasis supplied) 10. Weighing the evidence adduced by the prosecution on record on the touchstone of the aforementioned dictum of the Supreme Court, it is found that a family dispute in respect of the property was going on between the parties as both the appellant Kailashchandra Gavli and the deceased Suresh Gavli were real brothers, being the sons of Nathulal Gavli. It has also come on record as the evidence led by the appellant that his brother Suresh, the deceased had sold in excess of the land which actually fell into his share and regarding this the appellant had also filed various complaints, including a police complaint but no action was taken by any of the authorities. Copies of the sale deeds executed by Suresh (deceased) have also been placed on record as Ex.D/35, D/37C, and other documents relating to Register of registration of property, as also the revenue order dated 21.08.2009 proved as Ex.D/32 clearly holding that the deceased Suresh S/o Nathulal Gavli has sold excess land more than what fell into his share as was given 0.013 aare land, whereas he has sold more land than 0.013 aare. It is also held in this order that each legal heir of Nathulal Gavli is entitled to 1/5th share of his property. Vide Ex.D/29 the appellant has also made an application to Tehsildar Agar, District Shajapur regarding fraudulent transfer of property by deceased Suresh to other persons. A complaint was also made to the Collector Shajapur, Member of Parliament Shajapur, I.G. Bhopal, SDO Agar Badod, SDO Agar, Police Agar and T.I. Agar, but it appears that all these complaints did not result in any action/criminal proceedings against the deceased Suresh and he persisted in his efforts. 11. In the Dehati Nalshi Ex.P/18, which has been lodged by PW- 10 Kuldeep S/o Suresh (deceased), he has clearly stated that the appellant and both his sons reached on the spot when the construction work of boundary wall of a plot was going. 11. In the Dehati Nalshi Ex.P/18, which has been lodged by PW- 10 Kuldeep S/o Suresh (deceased), he has clearly stated that the appellant and both his sons reached on the spot when the construction work of boundary wall of a plot was going. The plot was sold by deceased Suresh to one Sodan Singh and when the presence of appellant was informed by the mason to his father, then he and his father reached on the spot at around 11 O' clock in the morning where a scuffle took place between them and the Kailash who was holding a spade, assaulted the deceased on his head, whereas his sons were also assaulted with sticks. The date of incident is said to be 10.06.2009, whereas the deceased had died on 17.06.2009 while being treated at Dewas, Hospital. The presence of the appellant on the spot is an admitted fact and in fact Shri Girish Desai, counsel appearing for the appellant has fairly submitted that at the most it would be a case falling under Section 304 Part II of IPC as right of private defence of property falling under exception II of Section 300 of IPC. 12. Counsel has also submitted that it was the deceased who had fraudulently sold the land in excess of his share to other persons thereby depriving the appellant of his rightful ownership of the land. It was the appellant, who was constructing the wall on the land sold by him to ensure that the possession of the land is given to the purchaser and thus it cannot be said that the provocation was sought voluntarily as an excuse for killing the deceased. So far as the Exception 2 of Section 300 of IPC is concerned, the same reads as under:- 'Exception 2.-Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. ' 13. ' 13. It is also apparent that the appellant had not gone to the scene of incident armed with any deadly weapon, which may suggest his intention was only to protect his property and not to commit the offence and as it is nobody's case that the appellant had gone to the construction site with a spade in his hand and it has also been suggested to PW-10 Kuldeep the son of the deceased Suresh that as the construction work was already going on the implements of construction, namely, spade, pick-axe (gaiti) etc. were already lying on the spot. In such facts and circumstances of the case, considering the fact that the deceased had died after around 6 days of the incident and the fact that in the postmortem report PW-18 Dr. Atul Kumar, who has proved the postmortem report Ex.P/28 has also admitted that he has not mentioned as to which injury suffered by the deceased was lacerated or whether the injury was simple in nature, although there is no doubt that the death was on account of the head injury. Apart from that, there is no explanation provided by the prosecution regarding the head injury suffered by the appellant and proved by Dw/1 Dr. R. L. Malvi. 14. In the aforementioned facts and circumstances of the case, it cannot be said to be a case falling under Section 302 of IPC and can be considered to be a case falling under the exception II of Section 300 of IPC. 15. In view of the same, the appeal stands partly allowed and the conviction of the appellant is modified from s.302 of IPC to s.304 part II of IPC and as the appellant has already undergone more than 10 years of sentence, his sentence is reduced to the sentence already undergone by him. He be released immediately, if not required in any other case.