CRIMINAL APPEAL No.426 OF 2003 ******** Against the Judgment and order of conviction and sentence dated 25th August, 2003/ 27th August, 2003 passed by Shri Paras Nath Sinha, Presiding Officer, Additional Court (Fast Track) Munger. ----------- RAGHUNANDAN MANDAL ……………….Appellant Versus STATE OF BIHAR ………………Respondent ----------- For the Appellant : Sarvsri Kanhaiya Prasad Singh, Senior Advocate Arun and Atal Bihari, Advocates For the Respondent: Shri Ashwani Kumar Sinha, APP ----------- P R E S E N T THE HON'BLE SHRI JUSTICE C.M.PRASAD THE HON'BLE SHRI JUSTICE DHARNIDHAR JHA ----------- C.M. Prasad & Dharnidhar Jha, JJ. The solitary appellant in this appeal has been found guilty of committing offence under section 302 of the Indian Penal Code and directed to undergo rigorous imprisonment for life as also to pay a fine of rupees two thousand only, else, to suffer simple imprisonment for a further period of six months. The appellant questions his conviction and sentence by preferring the present appeal. 2. The accused persons were put on trial for the charges under sections 147, 148, 302/149 of the Indian Penal Code. There were individual charges also. Appellant Raghunandan Mandal was charged under section 302 of the Indian Penal Code whereas 2 acquitted accused Ramautar Mandal stood charged under section 307 of the Indian Penal Code. Besides, other acquitted accused persons Om Prakash Mandal and Ramautar Mandal had jointly been charged by the trial court for committing offence under section 323 of the Indian Penal Code. 3. The charges related to an occurrence dated 31st July, 1992 and on appreciation of the evidence of as many as nine prosecution witnesses and one court witness, the court found the complicity of other accused persons doubtful on various reasons, like, some of the witnesses not appearing to the trial court fit to rely upon or if their evidence appeared reliable, the same was not corroborated by the medical evidence and it was leaving quite some room for doubting the veracity of the prosecution claim. As such, ten of them were acquitted leaving the appellant alone to be held guilty of the offence as indicated above. 4. The prosecution story emanates from Ext. 8, the Fardbeyan of P.W. 7, Ram Prasad Mandal, who happens to be the elder brother of the deceased Gobardhan Pandit. He stated that he was transplanting paddy seedlings in his field and others of his family, like, Ram Bilas Pandit (P.W.4), Bhabhi Jhouri Devi (P.W. 5) and daughter in law Gita Devi (not examined) were working with him in the same field, when all the eleven accused persons, named in the first information report, carrying weapons as indicated therein, came onto the field and as soon as they arrived, this appellant Raghunandan Mandal wielded a blow with Khanti (sharp solid iron rod with sharp and 3 wide one end usually used for digging out earth). The deceased Gobardhan Pandit, on receipt of the blow, fled away, but the appellant gave another blow on the back of head of the deceased. The deceased fell down whereupon Anil Mandal, Shyam Mandal, Lalindra Mandal and Ram Prasad Mandal are said to have dealt blows with their respective weapons, like, lathi, bhala, farsa and khanti to the deceased. The informant and his bhabhi, P.W. 5, ran towards the deceased, whereon P.W. 5 was given blow with lathi by accused Om Prakash Mandal on her head on account of which a bleeding injury was caused to her. Accused Ramautar Mandal is said to have given a khanti blow to the informant also on his head causing bleeding injuries to him. Besides, the other accused persons were alleged also to have assaulted the informant so much so as to be assumed killed. It was stated by the informant that on halla, Bhum Mandal (examined as P.W.1 Bhuneshwar Mandal), Shivanandan Pandit (P.W. 3) and Jharkhandi Pandit (P.W. 2) along with others arrived at the scene of occurrence to see it. It was stated that his brother died at the spot who was brought to the police station by the informant and others where Ext. 8 was recorded. 4. On the basis of Ext. 8, the police drew up the first information report (Ext. 7) and took up the investigation. The investigating officer has not been examined so as to tell us as to what steps or acts he took or performed during the course of investigation, but we could safely assume that he had prepared the inquest report (Ext. 9) and sent the dead body to the doctor for 4 holding postmortem examination and, accordingly, C.W. 1 Dr. Harinarain Mandal held the postmortem examination to write down his report, Ext. 10, which indicated that there were following ante mortem injuries on the dead body –(i) lacerated wound of size 2” x 1 ½” x skull deep in the middle of scalp; (ii) lacerated wound of size 1 ½” x 1” x skull deep on right occipital region; (iii) abrasion of size 1” with swelling 2” x 1 ½” above left wrist with achymosis at that particular site. C.W. 1 was of the opinion that death was on account of shock and heamorrhage caused by the above noted injury which had resulted from some hard and blunt substance. In his report on dissection part of the examination, C.W. 1 stated that under injury nos. 1 and 2 he found fracture of left parietal bone posteriorly and a depressed fracture in the middle of the occipital bone near its junction with parietal bone. Death, in the opinion of C.W. 1, had occurred within twenty four hours of holding the postmortem examination. 5. Undoubtedly, the accused persons were found by the police to have participated in the occurrence, one way or the other and, as such, they were sent up for trial, which ultimately resulted in the judgment presently under appeal. 6. The defence of the appellant and other accused persons was that the disputed land on which the occurrence took place, was belonging to one Dhaneshwar Pandit who was one of the deceased brother of informant and father of P.W. 4 and who had mortgaged the property to one Chhedi Mandal by creating a bond of 5 usufructuary mortgage with certain other clauses also as back as on 12.6.1956. The appellant and other accused persons further pleaded that they were in possession since after obtaining the land after execution of the deed and were enjoying usufructs thereof. The appellant pleaded that the informant and his family members unnecessarily intermeddled with their possession which gave rise to many proceedings, also under sections 144 and 145 of the Code of Criminal Procedure, and for bringing the law and order situation under control, under section 107 of the Code of Criminal Procedure and some of them were still going on. The defence also pleaded that there had been litigation in respect of the disputed question of possession between the parties in respect of same land and criminal cases also ended into acquittal of the accused persons and there was no redemption of possession in respect of the property in favour of the informant. It was stated by defence that on the day of occurrence, they again attempted to forcibly take possession of the property and the occurrence took place and they have committed no offence inasmuch as they could be within their right of private defence to protect their possession. 7. The court below does not appear going deeper into the question whether the appellant had the right of private defence to be exercised on the day of the occurrence and whether they had done it or, if they had done it, whether they had exceeded it or not. 8. During the course of present hearing, we, while being taken through the evidence by the learned senior counsel for the appellant, 6 were mainly addressed on this issue. It was contended that the admitted position remains that the mortgagee came in possession over the property just after execution of Ext. A and remained in continuous possession, which fact appears admitted directly or indirectly by the witnesses. In that event, it was contended, that it could be a question calling for the decision of this court as to who could be the aggressor. It was contended that the informant and his other family members were aggressors who were unnecessarily meddling with the possession and had, admittedly, trespassed over it so as to divest the appellant and other accused persons of the possession of the property which was a long settled possession. It was contended that the appellants and other accused persons were very much within their rights to repel the trespass to protect the property from being trespassed and, as such, any act done towards the repulsion of such trespass would not be said to be an offence. 9. The learned A.P.P. has also addressed us on the same issue but with some modification that it could be a case of exceeding the right of private defence. 10. We have confined our judgment to the above issue because the evidence adduced by the prosecution as regards the story of assault by the accused persons other than the present appellant, has been considered by the court below and either the court below has rejected the evidence of some of the witnesses or has accepted the part of it and even in case of the evidence being accepted, it has contrasted the same with the opinion of the doctor so as to give the 7 benefit of doubt to ten accused persons except the appellant. As such, we have confined our appreciation of evidence of the witnesses, as is available to us, on the part as attributed to the present appellant. 11. The prosecution story, from the very beginning is that when all the accused persons had come, that the first blow was wielded by the appellant, Raghunandan Mandal with khanti on the head of the deceased. The deceased turned around to run away or, in fact, was running away when the second blow was wielded by the appellant on the back of his head. The two injuries, which have been discussed by us in some earlier part of this judgment, support the manner of occurrence. There was an injury found by C.W. 1 in the middle of the skull whereas the other was found on the occipital region. It hardly requires to be mentioned that occipital part of the head is the back of it. There was a blow on that part and that blow was not less decisive as regards the cause of death. The blow had caused a fracture of the whole of the skull right from occipital up to its junction with parietal bone, thus, indicating that the whole top of the skull bone had been smashed by the two blows. Consistency is there in the evidence of all the witnesses on the manner of assault and the fact that the deceased had either run away or was attempting to run away when the second blow, as massive as indicated by injury no. 2, was inflicted upon him by the appellant. 11. The right of private defence to the property is available to a person to repel the trespass when he is faced with that situation. It is 8 too well known to be stated that the right could be exercised only to the extent and for the period so long as the trespasser remains over the property and it starts from the time the trespasser attempts to trespass over it. As soon as the trespass is over or is about to end, exercise of right of private defence also comes to an end. 12. We are not in the least doubt on account of the evidence of P.W. 4 in paragraphs 4, 11, 12, 13 and 16 that after the execution of the mortgage deed (Ext. A), the possession over the property was handed over to the accused persons. This is also evidently clear that the accused persons remained in continuous possession. The witness P.W. 4, who happens to be the son of the mortgagor, has admitted that neither his father nor he himself or any one from his family, had taken recourse to section 12 of the Bihar Money Lenders Act, 1974 or to rules 9 or 10 of Bihar Money Lenders Rules for redeeming the possession in their favour. We have also considered the recital of Ext. A and those recitals also indicate that the accused persons were handed over the possession of the property and they were continuing with it. Other witnesses like P.W. 5 in paragraph 9 and P.W. 7 in paragraph 6 of their deposition, have also admitted the possession of the accused persons over the property. Thus, we do not have any hesitation in coming to a conclusion that there was no reason for the prosecution party to come over the land and to exercise their acts of possession by way of transplanting paddy seedlings. They had clearly trespassed over the land inviting the exercise of right of private defence by the 9 accused persons. The informant and his family members clearly appear the aggressors. 13. However, as has been discussed by us, the exercise of the right of private defence, to us, appears quite in excess of the permissible limits. The first blow could be justified because that could have been felt necessary under the circumstances indicated above by the appellant to be given because he had to repel the trespass which had occurred in respect of the property in his or in possession of other family members. This is also clear that the accused persons are of the family of Chhedi Mandal, the mortgagee, but since he had dealt the blow and the deceased had turned around either to run away, or as is indicated by some of the witnesses, that he had run away, then, giving the other blow on the back of the head could never be justified. It was in excess of the required force used. 14. This brings us to consider as to how could we categorize the act of giving the second blow by the appellant upon the deceased. We fall back upon the relevant provision of section 300 of the Indian Penal Code, specially, its Exception (2) which reads as under: “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.” 10 14. As may be found from the above provision, if the exercise of right of private defence is made in good faith and even if it exceeds the power given to him by law, the person exercising it may not be committing culpable homicide amounting to murder if it was done without premeditation and without any intention of doing more harm than was necessary for the purpose. We have sufficient factual data available on record to note that it was exercised in good faith, firstly, because the accused persons were very much in possession of the property, secondly, there was a litigation going on about the disputed question of possession as admitted by the witnesses, thirdly, because it was not a specific act by a single person that trespass had been committed. The whole lot of the prosecution witnesses appear coming to the field, if we may say so, with full determination to oust the accused persons out of their settled possession of the property which, they had no business to do under law and, lastly, it could not be said that the accused persons were only armed. Indications are also there that there was a counter version also and some injuries had also been inflicted upon the accused persons. The very strong circumstance, which appears in favour of the accused persons, is that the prosecution party, i.e., the informant and his family members were simply unsettling the presumption of law, i.e., they were acting against the presumption of law that once usufructuary mortgage had been executed, the delivery of possession had been given to the mortgagee and he was continuing in possession till it was legally redeemed. If these 11 circumstances could be available to a court, we believe, there could be hardly any hesitation in us that the exercise was in good faith, may be was a bit in excess. We could say that it is a case fully covered by Exception 2 of Section 300 of the Indian Penal Code. 15. Accordingly, on the strength of the evidence and discussion which we have just made if facts and law, we find that the conviction of the appellant was not justified under section 302 of the Indian Penal Code and the court below ought to have held him guilty under section 304 of the Indian Penal Code, which conviction, we alter to by setting aside the conviction recorded against the appellant by the trial court. 16. This brings us to consider as to what could be the sentence which may be passed upon the appellant. We have just indicated the circumstances in favour of the appellant. We do not want to repeat the same as to under what circumstances his exercise of the right of private defence could be said to be exercised in good faith without the intention of doing more than necessary. We believe that they were fully within their rights and they had their own sound reasons to act in good faith to exercise the right. Besides, we have just held that the prosecution party appears to us aggressors as they attempted to unsettle a legally settled possession. 16. In that view, we are of the opinion that a sentence of the period already undergone by the appellant would serve the ends of justice, which is, on today, is of six years and eight months. We 12 direct that the appellant be released if he has served out that sentence and if he is not wanted in any other case. 17. The appeal is dismissed with the above modification in conviction and sentence. ( C. M. Prasad, J. ) ( Dharnidhar Jha, J. ) Patna High Court, The 4th December, 2009 NAFR/Anil/