CRIMINAL APPEAL( DB) No.163 OF 1988 ------- Against the judgment and order of conviction and sentence dated 9th February, 1988 passed by the court of learned 4th Additional Sessions Judge, Purnea in Sessions Trial No. 155 of 1981. --------- 1. Mataku Tuddu, 2. Chaturi Tuddu alias Chatur Tuddu, both sons of Cikil Tuddu, resident of village – Alinagar, P.S. – Khazanchi Hat at present P.S. Krityanand Nagar, District – Purnea ………… Appellant Versus The State of Bihar …………. Respondent -------- For the Appellants : Shri Neeraj Kumar @ Sanidh, Advocate, (Amicus Curiae) For the State : Sushri Shashibala Verma, APP --------- P R E S E N T THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA THE HON'BLE SHRI JUSTICE AKHILESH CHANDRA ------------ Dharnidhar Jha & Akhilesh Chandra, JJ. The two appellants along with accused Chhotaka Tuddu were put on trial by the learned 4th Additional Sessions Judge, Purnea by framing charge under sections 302 and 379 of the Indian Penal Code in Sessions Trial No. 155 of 1981. By the judgment dated 9th February, 1988, the two appellants were found guilty of committing offence under sections 302/34 of the IPC and sentenced to suffer rigorous imprisonment for life while being acquitted of the charge under section 379 of the IPC. The appellants have brought this appeal to question the above judgment. It may be noted that the third accused, namely, Chhotaka Tuddu was acquitted by the same judgment. 2 2. The prosecution case, in nutshell, was that the deceased Bitia Hembram, who was the sister of the informant Gera Hembram, had migrated to village Madheli, P.S. – Falka from village Alinagar and it appears that her land came in possession of one Bhoju Manjhi who was residing there after constructing a house. The land was earlier in possession of the husband of Bitia Hembram and as such, she wanted that she should re-construct a house over the same land after migrating back to her original place of residence at village Madheli. 3. The other development in respect of that land was that one Matku Tuddu had sold that land to one Lakhan Tuddu who had raised a Palani over it. 4. The informant alleged that he along with Bitia Hembram, Jethu Hembram ( P.W. 5) and Dagru Hembram (P.W. 6) came to village Madheli and raised some objection, upon which the two appellants along with others assaulted the deceased with stems of Arhar plant. The informant, his brother Jethu Hembram, P.W. 5 and his son Dagru Hembram, P.W. 6 were also assaulted by the accused persons. Bitia Hembram fell down injured. The accused persons poured water on her and took away Rs.600/- from her possession. Bitia became unconscious and died subsequently. 5. The informant alleged that he and his companions were kept captive by the accused persons and, as such, he could not come on 15.2.1974 to lodge the report. While lodging the report, the informant produced the stick also by which he and others were assaulted. It was stated that the land pertained to two plots no. 885 and 886 and the 3 deceased was getting rent receipt in respect of that, but the accused persons were holding threats to her for which she had lodged an informatory petition in court. The informant stated that the dead body of the deceased was lying at village Satkuduria. It appears that on the statement of Gera Hembram, FIR, Ext. 1 was drawn up and investigation was proceeded with. After completing investigation the accused persons were sent up for trial. 6. The defence of the appellants and other accused persons was that no occurrence in the manner as alleged had taken place and they had falsely been implicated. 7. In support of the charges, eleven witnesses were examined, out of whom P.W. 5 Jethu Hembram, P.W. 6 Dagru Hembram and P.W. 10 Munshi Kisku supported the prosecution story by giving eye witness account of the occurrence. Out of remaining witnesses, P.Ws. 2, 3, 7 and 9 were tendered for cross examination whereas P.W. 4 Dhena Basuki was declared hostile. P.Ws. 1 and 11 were witnesses of formal character who exhibited FIR and inquest report. P.W. 8 Dr. Ajay Kumar De held postmortem examination on the dead body and prepared the report in that behalf. He also examined P.W. 5 Jethu Hembram, P.W. 6 Dagru Hembram and issued injury certificates, Exts. 3 and 3/1. On consideration of the evidence, the learned trial judge recorded the finding of guilt and passed the sentence. 8. We have heard Shri Neeraj Kumar alias Sanidh, learned amicus curiae on behalf of the appellants who has contended that admitted position was that the land, in spite of belonging to the deceased Bitia 4 Hembram, was not in her possession as the same had been handed over by her husband to one Bhoju Manjhi who had sold the same to one Lakhan Tuddu. It is further admitted that Lakhan Tuddu had raised a Palani over the land and was residing there. It was contended that the witnesses have stated that as soon as they reached village Ali Nagar, they started dismantling the Palani and that invited the ire of the accused persons who assaulted them. It was contended that the deceased and her companions like the informant and other witnesses were trespassers who were attempting to unsettle the possession of Lakhan Tuddu and as such, the accused persons were within their rights of private defence to use force against the deceased and her companions to repel the trespass. It was contended that the appellants have not committed any offence. In support of the contention, learned counsel has placed reliance on AIR 1977 Supreme Court 619 Ram Rattan and ors. Vs. State of Uttar Pradesh. 9. The learned Additional Public Prosecutor appearing on behalf of the state has conceded on the admitted facts, that possession over the dispute plot of land was long abandoned by the husband of the deceased and some other persons had settled down in possession of the disputed property and on the day of the occurrence some house or a structure like that appeared standing over it which was attempted to be dismantled by the deceased and her companions. It was further contended by the learned Additional Public Prosecutor that accused persons might be within their rights to use force to expel the trespassers from the property 5 in question but they were not entitled under law to cause death of Bitia Hembram and, as such, the offence appears established. 10. The evidence of Dr. Ajay Kumar De, P.W. 8 indicates that the deceased had the following injuries: “(i) Cut with lacerated margin 2” x ½” x bone deep on the vortex; (ii) Bruise on the back of chest 2” x 1” (iii) Bruise on right side of chest 2” x 1.” 11. On dissection, the doctor found fracture of the frontal bone with menenges lacerated and ecchymoses present there on the frontal and parietal lobes of brain. Death appeared on account of haemorrhage and shock caused on account of injury no. 1 which was sufficient in the ordinary course of nature to cause death. 12. Besides the above, the doctor found the following injuries on the informant Geda Hembram who has not been examined in this case. “(i) Swelling 2” x 2” on the left side of chest; (ii) Swelling 2” x 1” on the left side of scalp; (iii) Swelling 3” x 2” on the dorsum of left hand; (iv) Bruise 1” x 1” on the left leg; (v) Swelling 2” x 1” on the left thigh; and (vi) Abraison 1” x 3” on the back of left shoulder” 13. P.W. 8 also examined P.W. 5 Jethu Hembram and P.W. 6 Dagru Hembram and found three swellings on the person of P.W. 5 while two swellings, three abrasions and bruises of different dimensions were found on the person of Jethu Hembram. Thus, it is clearly indicated that the deceased was killed on account of the assault wielded upon her and 6 further the witnesses P.Ws. 5 and 6 along with the informant were also assaulted and injured. 14. Witnesses have stated that as soon as they reached at the place of occurrence they started dismantling the structure which was already existing at the place of occurrence and the accused persons opened assault upon them. It is also stated by the witnesses that the deceased Bitia Hembram was residing at village Madheli and her husband had abandoned the possession of disputed property in favour of third person. Bitia Hembram had come to village Ali Nagar to re-assume her possession over the property after one year of the death of her husband. This appears admitted that in between, some other persons had taken possession of the property. 15. The concept of settled possession in criminal law was considered by the Supreme Court in the decision cited before us and referred to above. The relevant part of the observations of the Supreme Court appears at pages 622 and 623 of the report and we are tempted to quote the whole of the observations including the observation of the court made in Puran Singh Vs. State of Punjab (1975) Supp. SCR 299 = (AIR 1975 SC 1674). “It is well settled that a true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing, and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to 7 the remedies available under the law. In view of the clear finding of the High Court that the complainant Ram Khelawan even after encroachment had established his possession over the land in dispute for two to three weeks before the occurrence for the purpose of criminal law, the complainant must be treated to be in actual physical possession of the land so as to have a right of private defence to defend his possession even against the true owner. While it may not be possible to lay down a rule of universal application as to when the possession of a trespasser becomes complete and accomplished yet, as this Court has indicated recently, one of the tests is to find out who had grown the crop on the land in dispute. In Puran Singh v. State of Punjab (1975) Supp SCR 299 = (AIR 1975 SC 1674) this matter was comprehensively considered and one of us (Fazal Ali, J.) who spoke for the Court observed as follows: “We, however, think that this is not what this Court meant in defining the nature of the settled possession. It is indeed difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into a settled possession. But what this Court really meant was that the possession of a trespasser must be effective, undisturbed and to the knowledge of the owner or without any attempt at concealment. For instance a stray or a casual act of possession would not amount to settled possession. There is no special charm or magic in the word „settled possession‟ nor is it a ritualistic formula which can be confined in a strait-jacket but it has been used 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 ……….. Thus in our opinion the nature of possession in such cases 8 which may entitle a trespasser to exercise the right of private defence of property and person should contain the following attributes: (i) that the trespasser must be in actual physical possession of property over a sufficiently long period; (ii) that the possession must be to knowledge either express or implied of the owner or without any attempt at concealment and which contains an element or 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) that 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.” 16. Thus, what appears is that the concept of „settled possession‟ in criminal law is quite different and even if one initially trespassed over a property and lived there in the knowledge of the real owner, his possession could be said to be settled and if the real owner would wanted to resume his possession over the property, then he shall have to take recourse to law. The real owner cannot resume the possession over such property as was done in the present case by taking men with him and indulging into acts of trespass or acts which could be an offence. The 9 person may be the real owner but when he is attempting to take back possession without taking recourse to law, he becomes a trespasser and then his acts would not be defended under criminal law and the initial trespasser who had settled down in the possession of the property could exercise his rights of private defence in the light of the provision of section 97 of the IPC, which runs as follows: “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, where 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.” 17. A bare perusal of the above provision of the Penal Code may indicate that it is not only the real person who is in possession of the property who could exercise the right of private defence of property against the acts of mischief or criminal trespass, but any person can exercise that right to defend the property from being trespassed even by real owner of the property. 18. On the facts of the present case not only the deceased and her men had trespassed over the property but they had also started committing 10 acts of mischief because, admittedly, as per the evidence of the witnesses, they had started cutting some thin ropes so as to dismantling the structure. This could be an act which could be brought within the definition of offence of mischief which may justify acting in exercise of the rights of their private defence of property against offence both of trespass and mischief which was being committed by the witnesses. . But the difficulty is that restrictions are there in exercise of such right and those restrictions are contained in section 99 of the IPC. “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 of his office, though that direction may not be strictly justifiable by law. There is no right of private defence in case in which there is time to have recourse to the protection of the public authorities. Extent to which the right my 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.” 19. As may appear from the provision of section 99 of the IPC, a person could use force to repel the trespass in exercise of right of private defence, which right shall be available to a person as soon as the act of trespass or mischief has started. Such a right to defend the property from 11 offence of mischief or criminal trespass could be available to him so long as the trespasser remains over the property. As soon as the trespasser is expelled from the property, the right is brought to an end. Here, in the present case, facts do not indicate that as soon as the assault was opened on the deceased or her companions, they still continued with the act of mischief or remained over the property with a determination as not to leave the property. Besides, the evidence of P.W. 8 Dr. Ajay Kumar De indicates that the blow on the head of the deceased was extremely heavy as it had caused the fracture of temporal bone. Not only that, one of the injured P.W. 5 has as many as six injuries. The second injured had three and the 4th injured had six injuries. The amount of assault administered to the deceased and to the injured appeared quite sufficient to give an inkling that the exercise of right of private defence was in excess of the limit as laid down by section 99 of the IPC. But, the difficulty which we face in the present case is that there is a general allegation against all the accused persons that they assaulted the deceased and the injured persons. No specific allegation has been made against any of the accused persons, least to talk of the two appellants to indicate that a particular accused had assaulted either the deceased or any of the injured. In this view of the matter, we find that the conviction of the appellant under sections 302/34 of the IPC was not proper. They could have been convicted under sections 325/34 of the IPC. 20. We, accordingly, convert the conviction of the two appellants from section 302/34 IPC to section 325/34 IPC. We find from the record that the appellants were remanded by the C.J.M., Purnea on 19.2.1976 and 12 they were released from custody on 16.1.1977, i.e., they remained in custody for about eleven months. After being convicted, the appellants were taken into custody on 9.2.1988 and were released by the orders of this court in the present appeal on 12.4.1988. Thus, the appellants remained in prison after conviction for about two months. Therefore, the total period of incarceration of the appellants could come to over a year. 21. Considering the general nature of evidence and indefinite story of assault, we feel that a sentence of the period already undergone may be the sufficient sentence. We, accordingly, inflict the above sentence of the period already undergone on each of the two appellants by setting aside the sentence of RI for life along with the conviction of the appellants under sections 302/34 of IPC. 22. The appeal is dismissed with the above modification in conviction and sentence. (Dharnidhar Jha, J.) (Akhilesh Chandra, J.) Patna High Court, The 8th April, 2010, A.F.R./Anil/