5-//-/& HIGH COURT OF CHHATTISGARH. BILASPUR 'N' (Sinale Bench: Hon'ble Shri Sunil Kumar Sinha. Jl CriminalADpeal No. 1231 of 1992 Manraj Vs. TheStateofM.P (Now State of Chhattisgarh) JUDGMENT Post for Judgment : ^/11/2010 Sunil KumarSinha c^ HIGH COURT OFCHHATTISGARH.BILASPUR (Sinale Bench: Hon'ble Shri Sunil Kumar Sinha. J) € (t APPELLANT RESPONDENT Criminal Appeal No. 1231 of 1992 Manraj son of Jugul Rajwar, aged 50 years, Resident of Viltage: Chhindia at present R/o Morma, P.S. Patna, District Surguja, M.P. (Now State of Chhattisgarh) Versus The State of M.P. (Now State of Chhattisgarh) (ADpeal under Section 374 (2) ofThe Code of Criminal Procedure. 1973) Appearance: Mr. Manoj Mishra, Advocate for the appellant. Mr. V.V.S. Murthy, Dy. Advocate General with Mr. Rajendra Tripathi, Panel Lawyer for the State. JUDGMENT (3.11.2010) Sunil Kumar Sinha. J. (1) This appeal is directed against thejudgmentdated 23.11.92 passed in Sessions Trial No. 207/87 by the Additional Sessions Judge, Baikunthpur. (2) By the impugned jydgment, the appellant has been convicted u/ss 325 & 323 IPC and sentenced to undergo R.l. for 3 years and fine of Rs.1,500/-, in default S.l. for4 months; and R.l. for 6 months •espectively. CriminalADpealNo. 123 lof 1992 6". u^ (3) The facts, briefly stated,are as under:- Appellant- Manraj and his 3 sons were prosecuted u/ss 302 & 323 IPC. It was alleged that on 17.11.86, they committed murder of deceased- Sunder Sai and they ^lso caused simple injury to his wife- Hirondiya Bai. Appellant- Manraj and deceased- Sunder Sai werereal brothers. They had ancestral property in village Morma and Chhindia. Deceased- Sunder Sai was residing in village Morma andthe accused persons were residing in village Chhindia. There was a partition in their ancestral property and the disputed land (£>a/?ra) fell intothe share of appellant- Manraj. Admittedly, appellant- Manraj was in cultivating possession of the disputed land since many years. In the year 1986, Manraj had sown paddy crop on the disputed land. The prosecution came with the case that, in fact, the paddy crop was sown by deceased- Sunder Sai. On 17.11.86 at about 11.00 a.m. when the deceased, his wife- Hirondiya Bai and their son-in-law - Somar Sai were harvesting and taking the paddy crop of the said land, the accused persons came there and they assaulted Sunder Sai by lathion his head. They also caused some injury to Hirondiya Bai. SunderSai received an injury on his head. He was admitted in the hospital, where he died on 21.11.86, In post-mortem examination, it was found that he sustained a fracture of 3 inch x 2 Vz inch on the middleof the scalp. One line of it has extended to frontal region and one tine has extended upto left temporal region and an other line has extended upto right temporal region of the skull. Margins were congested. Blood clotswere found inskull. Initiallythe offence was registered under Section 307/34 IPC, but later on, it was converted u/s 302 IPC. The learned Sessions Judge, on a close scrutiny of evidence led before it, acquitted 3 accused persons (sons of ^ 't'/ c Criminal Appeal No. 1231 of 1992 appellant- Manraj)of thecharges framedagainst them. The Sessions Judge held that it was not proved that the above 3 accused persons also participated in assault. The Sessions Judge also recorded finding that, in fact, the disputed land was in actual physicalpossession of the accused party and they had sown paddy crop on the said land. On the date of incident, the accused persons were harvesting their paddy crop, the deceased came there and he tried to take the paddy crop harvested by the accused persons, on which, the incident took place and the deceased was given single blow by the appellant. The appellant took the plea ofright of private defence of the property. The said plea was rejected by the Sessions Court on the ground that the land in question was recorded in jointpossession of both the brothers (appellant and deceased) in Revenue Record, therefore, even if the accused persons had sown the crop on the said land, they would not get a right of private defence of the property on that account. (4) Mr. Manoj Mishra, learned counsel appearing on behalfofthe appellant, argued that the learned Sessions Judge erred in law in rejecting the plea of right of private defence of property. When it was held that the accusedparty had cultivated the land and paddy crops were grown by them, there was no reason to reject the plea of right of private defence merely on the ground ttiat the Revenue Record stands on thejoint names ofthe appellantand the deceased. (5) On the other hand, Mr. V.V.S. Murthy, learned Dy. Adovate Generalappearingon behalf ofthe State, opposed these arguments and suppprted the judgment passed by the Sessions Court. '^ Criminal AppealNo. 1231 of 1992 ($) (6) I have heard the learned counsel for the parties at length and have also perused the recordsofthe sessions case. (7) Section 97 of the IPC deals with the provisions relating to right of private defence of the body and of property. It provides that every persons has a right, subject to the restrictions contained in section 99, to defend his own body, and the body of any other person, against any offence affecting the human body; and 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. 1 (8) In Darshan Sinah -Vs- State of Puniab & Anr.. 2010 CRI.L.J 1393, the Supreme Court held that the court dealing with the plea of right of private defence has to weigh the material to conclude whether the plea is acceptable. The Supreme Courtsaid that it is essentially a finding of fact. The Supreme Court enumerated the following principles relating to the right of private defence:- (i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic andcivilized countries recognize the right of private defence within certain reasonable limits. (ii) The right of private defenceis availableonly to one who is suddenly confronted with the necessity of averting an impending danger and not ofself-creation. (iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is Criminal Aroeal No. 1231 of1992 '^ ^' not necessary that there should be an actual commissionof the offence in order to give rise to the right of private defence.It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the rightof private defence is notexercised. (iv) The right of private defence commences as soon as a reasonable apprehension arises and it is comterminus with the duration of such apprehension. (v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude. (vi) In private defence the force used by the accused ought not to be wholly disproportionate pr much greater than necessary for protection ofthe personor property. (vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record. (viii) The accused need not prove the existence of the rightof private defence beyondreasonable doubt. (ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful actis an offence. (x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened. ^ (9) In Puran Sinsihand others -Vs- The State of Puniab. 1975 CRI.L.J. 1479, the Supreme Court held that the nature of possession which may entitle a trespasser to exercise the right of private defence of property and person should contain the following attributes: (i) \. } the trespasser must be in actual physical possession of the property over a sufficiently long period; the possession must beto the knowledge either express or implied of the owner or without any attempt at ^' 1. Criminal ADDealNo. 1231 of 1992 concealment and which contains an elementof animus possidendi. The nature of possession of the trespasser would however be amatter to be decided on facts anct circumstances ofeach 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) one of the usyal tests to determine the quality of settled polssession, 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 grownby the trespasser and take forcible possession, in whichcase the trespasser will have a right of private defence and the true owner will have no rightof private defence. ^ The Supreme Court further held that the expression 'settled possession' has been used in Munshi Ram and others—Vs-Delhi Administration. AIR 1968 SC 702, to mean such clear and effective possession of aperson, 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. It was held that the right of private defence of person or property is to be exercised under the following limitations:- (i) that if there is sufficient time for recourse to the public authorities the right is not available; (ii) that more harm than necessary should not be caused; (iii) that there must be a reasonable apprehension of death or of grievous hurt to the person or damage to the property concerned. It was held that itis not the law that a person when called upon to face an assault must run away to the police stationandnotprotect \ himself or when his property has been the subject-matter of x c ¥• 'l Criminal Appeal No. 1231 of 1992 trespass and mischief he should allowthe aggressorto take possession ofthe property while he should run to the Public authorities. Where there isan element of invasion or aggression on the property by a person who has no right topossession, then there is obviously no room to have recourse to thepublic authorities and the accused has the undoubted right to resist the attack and use even force if necessary. The question whether a person having a right of private defence has used more force than is necessary would depend on the facts and circumstances of a particular case. I ^' -6".\ (10) In case on hand.the learned Sessions Judge, on due appreciation of evidenceof prosecution witness, recorded a positive finding vide Para-39 of the judgmentthat bahra land, which was in dispute, was in possession of the accused persons and the accused persons had cultivated paddy cropon the said land. The Sessions Judge further recorded the finding that the accused persons were harvesting the paddy crop sown by them but the deceased forcibly wanted to take the paddy crop harvested by the accused persons. It is in these circumstances, the appellant gave single blow on the head of the deceased due to which he received injury and he died on the 5th day during the course of his treatment. (11) The plea of right of private defence was taken by the appellant in his 313 Cr.P.C. statement also. Even after admitting the exclusive ^hysical possession of the accused persons on the disputed land ) ^ Criminal Aweal No. 1231 of 1992 c ^- "^ and after holding that the accused persons had grown paddy crop on the said land and that the deceased wanted to take that crop forcibly, the Sessions Judge rejected the plea of right of private defenceonly on the ground that theland in question was recorded in joint possession of both the brothers (appellant and deceased) in Revenue Record, therefore, right of private defenceof property was not available to the appellant. 1 am unable to accept the said find recorded by thelearned Sessions Judge in view of the principles laicj down in Puran Singh (supra). What is important for exercising of right of private defence of property in such matter, is the actual physical possession over the property which is said to be settled possession in terms of dictum of the Supreme Court in Munshi Ram (supra) which clearly lays down that the possession should be clear and effective possession of a person, even if he is a trespasser because he gets the right under the criminal law to defend his property against attack even by the true owner. Here the possession rf of accused persons appears to be since long back and in the relevant year they had grown the paddy crop on the land. Therefore, even if the land was recorded in the joint names of the 2 brothers in the Revenue Record, the appellant, who was in exclusive possession of the land, had a right of private defence of his property and the Sessions Judge clearly fell into error by holding that the appellant was having no such right and the act of the appellant was directly punishable under the penal provisions. ) yi^t^ ^ •/€-'.L.1 1 y';^i^p^^8 'i y/ "y^ ^- c, ^ 9 Criminal Appeal No. 1231 of1992 (12) Now the question arises about the force used by the appellant for protecting his property ? The force used by theaccused in such matter ought not to be wholly disproportionate or much greater than necessary for protection of the property. In the present case, when the deceased wanted to forcibly carry the harvested crop of the appellant, the appellant gave single blowto the deceased by baihenga (stick of bamboo for carryingpaddy on shoulder) brought for carrying the paddy crop. Admittedly the appellant gave single blow only to the deceased. Had the appellant repeated the blow, then his case would have fallen into exceeding. In case of using the single blow in the said circumstances would not bring the case of the appellant inexceeding exercise of right of private defence of his property. (13) In Jai Dev-Vs- TheStateofPuniab. AIR 1963 SC 612, also referred in the judgment of Pi/ra/? S//?g/?, while adverting to the question as to whether the force used should not be more than what is necessary, the Supreme Court observed:- "Butin dealing with the question as to whether more force is used than is necessary or than was justified by the prevailing circumstances, it would be inappropriate to adopt tests of detached objectivity which would be so natural in a court room, for instance, long after the incident has taken place. That is why in some judicial decisions it has been observed that the means which a threatened personadopts of the force which he uses should not be weighed in golden scales." (14) Onthe above principles, if the single blow was used by the appellant and it was not repeated, I am satisfied that it was not a V. ^ ^ 10 Criminal ADpealNo. 1231 of 1992 M case of use ofwholly disproportionateor much greater force, theirby exceeding exercise of right of private defence by the appellant in the prevailing facts and circumstances ofthecase. (15) So far as injury caused by the appellant to Hirondiya Bai is concerned, the evidence in that behalf is not clear. In view of the exaggeration made by Hirondiya Bai and further in view of the fact that her evidence was not held reliable for involvement of the 3 other accused persons, it was not established beyond all reasonable doubt that the appellant inflicted any blow to Hirondiya Bai, who simply was complaining pain on right back portion of knee and the right arm and there was a contusion on her right thigh. (16) For the foregoing reasons, the conviction and sentences awarded to the appellant cannot be sustained. (17) In the result, the appeal is allowed. Theconviction and sentences awarded to the appellant u/ss 325 & 323 IPC are set- aside. The appellant is acquitted ofthe charges framed against him. It is stated that the appellant, who has already undergone for more than 3 months, is now on bail. His bail bonds are cancelled and surety stands discharged. Sd/- S""" Kumar Sinha Judge vatti