Criminal Appeal (SJ) No.678 OF 2009 --------- Against the judgment and order of conviction and sentence dated 18.8.2009 passed by Shri Rabindra Mani Tripathi, Additional Sessions Judge – III, Bagaha, District – West Champaran in S.T. No. 209 of 1995. ----------- 1. Ram Chandra Ram, son of Fouzdar Ram, 2. Bhim Ram, son of late Guddi Ram, both residents of village – Goriyapatti, P.S. – Bagaha, District – West Champaran ………….. Appellants Versus The State of Bihar …….. …. Respondent ------- For the Appellants : Sarvashri Baxi S.R.P. Sinha, Sr. Advocate Vijay Kumar Singh No. I, Advocate For the State : Shri Ajay Mishra, A.P.P. --------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA --------- Dharnidhar Jha, J. Three accused persons including the two appellants and acquitted accused Arjun Ram were charged under sections 307/34 and 323 IPC by the learned 3rd Additional Sessions Judge, Bagaha in trial of S.T. No. 209 of 1995. By judgment dated 15.8.2009, the two appellants were found guilty of committing offence only under section 323 IPC while they were acquitted of the charge under section 307/34 IPC. The charges against accused Arjun Ram was held not established and he was acquitted of all the charges. As regards the sentence, the two appellants were directed to undergo simple imprisonment for six months each on account of their conviction under section 323 IPC. The 2 above judgment and order of conviction is being impugned by the two appellants before this Court. 2. There does not appear any dispute, as may appear from the findings recorded by the learned trial judge in paragraph 7, that the land upon which the informant was raising a tati (fencing), had been adjudicated to be of the accused persons and was in their possession as decreed by a competent Civil Court. The decree had been confirmed by the appellate court also. 3. It is alleged that while the informant was raising the tati (fencing) over the land, the accused persons went to create obstruction so as to not allowing the fencing of the land, which, according to them, was theirs, which was objected to by the informant upon which, all the accused persons assaulted the informant with lathi. It was specifically alleged that appellant Ram Chandra Ram dealt a lathi blow on the head of the informant in order to kill him and a lacerated injury was caused to him. Appellant Bhim Ram also assaulted the informant with lathi on his leg, back and hands. Somari Devi, the wife of Balkhandi Ram, Balkhandi Ram himself and Sumitra Devi, wife of the informant, besides Champa Devi came to save the informant and then Somari Devi was assaulted by accused Arjun Ram with his farsa on her head while Balkhandi Ram was assaulted on his leg and hand. Appellant Ram Chandra Ram dealt a lathi blow on Sumitra Devi and Champa Devi was assaulted by appellant Bhim Ram. 3 4. The fardbeyan of P.W. 3 Lalji Ram was recorded in Bagaha Sadar hospital and on that basis, FIR of the case was drawn up and the investigation was carried out. After close of the investigation, three accused persons were sent up for trial, which ultimately ended in the impugned judgment. 5. As may appear from the impugned judgment itself, the doctor who had examined the injured, had not been produced nor was the injury certificate brought on record. The Investigating Officer of the case also did not turn up for his evidence. The witnesses who were examined, have supported the allegations that the appellants had assaulted the informant with Farsa and lathi respectively but on account of non-examination of the doctor and production of injury certificate, the learned trial judge held that the charges under section 307 IPC could not be sustained. He also went on to consider the oral evidence available to him and held that it could be a case under section 325 IPC and on that aspect of the matter he was recording a finding that there could not be conviction of any of the accused for committing that offence also in absence of the medical evidence. He was accepting the oral evidence of the witnesses that the accused persons assaulted the informant and other witnesses with lathi and, as such, this could be a case which was established under section 323 IPC. 6. The solitary contention which was raised before this Court was that the learned trial court was himself recording a finding that the land, upon which the informant party was creating a fence, had been 4 adjudicated and found in possession of the appellants. As such, the appellants were within their right of private defence to repel the act of trespass, which was being committed by the informant and others while attempting to fence the land so as to encroaching upon it. It was contended that there is no medical evidence to indicate that there was any serious injury which could have negated the exercise of right of private defence against the act of trespass which was being committed by the informant and, as such, this Court should examine the whole effect of the evidence and the findings of the trial court from that angle. 7. Section 97 IPC reads as under: “97. Right of private defence of the body and of property.---Every person has a right, subject to the restrictions contained in section 99, to defend ---- First.--- His own body, and the body of any other person, against any offence affecting the human body; Secondly.--- 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. As may appear from the consideration of the above provision, the act of criminal trespass or an attempted act to commit criminal trespass could give rise to the exercise of right of private defence to one’s property. The only restriction, which has been imposed by law on exercise of such right of private defence is contained in section 99 IPC and that provision points out that there could not be any right of private defence against an act which does not 5 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. 9. It further lays down that the right of private defence against the act which does not reasonably cause grievous hurt is if done or is attempted to be done by the direction of a public servant acting in good faith under colour of his office, then that direction, by law, may also be accepted out of the purview of exercise of such right in the light of section 97 IPC. Besides, if the person aggrieved has a time to take recourse to law, then also he cannot justify his act of exercising right of private defence. Besides the above, section 99 IPC puts down certain restrictions upon exercise of such right and if one peruses that part of section 99, the plea of exercise of right of private defence to property could be raised only when it is shown that the exercise of such right has not been exceeded, specially, if it relates to causing death of the other party. 10. Here, in the present case, the learned trial judge has recorded in paragraph 7 of his judgment that by a decree of competent Civil Court, the land was adjudicated to be that of the appellants. The decree in the original suit was confirmed in appeal and it was found that the appellants were in possession of the suit property. If this could be so as has been found by the learned trial judge, then the appellants shall be justified in exercising their right of private defence against any 6 act or attempted act of criminal trespass against their property. It is admitted case that the informant was raising a tati so as to fencing the land which was found belonging to the appellants. The act of criminal trespass which was being committed by the informant had reasonably given cause for exercising the right of private defence of property so as to dispelling the trespass which was committed by the informant and his men. There was no medical evidence coming during the trial on account of non-examination of the doctor as also on account of non- production of injury certificate. The I.O. has also not been examined. In that light, it could not be said with certainty as to what was the injury. This was the finding of the learned trial judge also that he was not finding himself competent to hold that it could be a case under section 307 or 325 IPC. Learned trial judge was simply finding it a case under section 323 IPC. 11. The extent of exercise of right of private defence against the trespasser when the offence of criminal trespass is being committed in respect of one’s property is available to such a person till he dispels such trespass. There does not appear any acceptable evidence on record indicating that any further assault than was necessary was administered to the informant and others so as to repelling them from committing the trespass over the appellants’ property. In that view, it could be very difficult to say that it could be an offence which was committed by the appellants when they were assaulting the informant and others to cause simple hurt so as to exercising their right of private defence of 7 expelling the trespassers from their property. This aspect of the case appears lost sight of by the learned trial judge. 12. It might be submitted that the plea was not specifically raised by the appellants. The law is well settled that there is no need to raise such a plea of right of private defence by the accused. If it appears from the trend of cross-examination or from the evidence of witnesses that such a right could have been exercised by the accused, then the same plea could be agitated at any stage of the proceeding, even at the appellate stage or the court may also act upon it. That being the position of law, I find that in view of the exercise of right of private defence, the judgment of conviction could not be sustained as it was simply improper to hold the appellants guilty of committing offence under section 323 IPC. 12. In the result, the appeal succeeds and the same is allowed. Conviction of the two appellants with consequent sentence passed upon each of them is set aside. They shall be discharged from the liability of their bail bonds. (Dharnidhar Jha, J.) Patna High Court, The 12th May, 2011 NAFR/Anil/