1. This is a revision application filed by original accused Nos. 1, 3 and 4, from the order of the Sessions Judge at Ahmednagar in appeal upholding the conviction of the said accused by the Judicial Magistrate, First Class, Shrirampur, on 13th July 1967. The original 2nd accused was acquitted by the said Judicial Magistrate, On appeal to the Court of Session, the Sessions Judge, whilst up-holding the conviction of accused Nos. 1, 3 and 4, reduced the sentences of imprisonment Passed against them to the period already undergone by them, maintaining the fine which was imposed by the trial Magistrate. It may, however, be mentioned that, on appeal, the Sessions Judge altered the conviction of accused No. l to Section 324 read with Section 109, 1. P. C. from Section 324 read with Section 34, under which the trial Magistrate had found him guilty. As far as accused Nos. 3 and 4 are concerned, he, however, upheld their conviction under Section 324, 1. P. C.
2. The facts of the case are that one Nabisaheb Nizamsaheb was one of the co-owners of a plot of land bearing Survey No. 96/2 situated in the village of Ekalahari, and accused No. l claimed to be in possession of the said Survey Number as a tenant under a registered Lease Deed dated 1st February 1958. Nabisaheb and his co-owners had filed a civil suit in the Court of the Civil Judge at Shrirampur for a declaration that the said Lease Deed was not binding upon them, and for an injunction restraining the 1st accused from entering upon the said land on 3rd September 1966. An application for an interlocutory inunction made on behalf of the plaintiffs in that suit was dismissed some time before the incident with which we are concerned in the present case. The suit, however, is still pending. The evidence shows that, even though the said suit is still pending, Nabisaheb has made attempts on three or four occasions to assert the right which he claims to the land comprised in the said Survey No. 96/2, on each of which he was obstructed by the 1st accused who claimed to be a tenant thereof, as already stated above. The actual incident which has given rise to the present proceedings occurred early in the morning of 1st October L966, when Nabisaheb made one more attempt to assert his right to the said land and to carry out sowing operations thereon. For that purpose, he went to the said land accompanied by witnesses Sitaram and Harishchandra, but on this occasion, unlike on the previous occasions when he had made similar attempts, the incident did not pass off as peacefully as before. The evidence of the main prosecution witnesses, namely, Nabisaheb, Sitaram and Harishehandra, shows that accused No. 1, accompanied by three other persons, resisted the attempt of Nabisaheb and his associates, that accused No.1 had a stick in his hand, accused No. 2 who was acquitted by the trial Magistrate had nothing in his hand, and that accused No. 3 had an axe while accused No.4 bad a pen-knife in his hand. In the scuffle that ensued, Nabisaheb fell down and received several injuries on his person, including injuries with the axe and the pen-knife. The four accused were thereupon charged for offences under Sections 323 and 324 read with Section 34, I. P. C., and were convicted and sentenced by the trial Magistrate as already stated earlier in this judgment. The convictions and sentence are confirmed by the Sessions Judge in appeal, subject to certain modifications which have also been set out above.
3. Two questions are raised by Mr. Sabnis on behalf of accused Nos. 1, 3 and 4, and they are (1) that the incident itself is not proved to have occurred and alternatively (2) that, if it is held that such an incident did occur, the evidence led by the prosecution itself shows that accused Nos. 1, 3 and 4 acted well within the right of private defence, and they, therefore, committed no offence, by reason of the provisions of Section 96, I. P. C.
4. There is no substance in the first point raised by Mr. Sabnis which was founded on the single fact that Nabisaheb has somehow stated in his evidence that the incident in question occurred on Survey No. 195/1 which, Mr. Sabnis states, is another Survey Number belonging to him situate quite far away from Survey No. 96/2 on which the incident is alleged to have occurred. This point has been considered by both the lower Courts which have arrived at concurrent findings to the effect that Nabisaheb has merely made a mistake in regard to the number whilst giving his evidence on the point. There is no reason for me, sitting in revision, to disturb that concurrent finding of fact arrived at by the lower Courts, and this contention of Mr. Sabris must, therefore, be rejected.
5. The second contention of Mr. Sabnis, however, requires careful consideration. That contention is that the evidence on record shows that accused No. l was the tenant of Survey No. 96/2, and was in possession of the said Survey Number on the material date viz., the 1st of October 1966, that Nabisaheb and his associates wrongfully attempted to interfere with that possession of the 1st accused, and thereby committed the offences of mischief and criminal trespass which the 1st accused was entitled to resist in exercise of his right of private defence under Section 97(2) of the Indian Penal Code, and, if in resisting the same, Nabisaheb has received injuries, the accused persons have not committed any offence, in view of the provisions of Section 96 of the Indian Penal Code.
6. It is contended by Mr. Bhonsle on behalf of the State that it is not open to accused Nos. 1, 3 and 4 to take up the plea of the right of private defence which is a plea wholly inconsistent with the plea taken up by them in their respeective statements that no such incident as is alleged to have occurred on the 1st of October 1966 had occurred at all. The plea that is to be found in the statements is one of total denial, and the interesting question that arises is whether, when accused persons take up such a plea of total denial, they could be permitted to raise an alternative plea of the right of private defence, as Mr. Sabnis has urged before me in the present case. This question has been the subject of three judicial decisions. Mr. Sabnis has relied upon the decision of the Patna High Court in the case of Janki Mahto v. Emperor, AIR 1933 Pat 568 at p. 570 in support of his contention that an alternative and inconsistent plea of that nature can be raised by an accused person. The accused in that case was convicted under Section 326 of the Indian Penal Code, and sentenced to two years' rigorous imprisonment. He appealed from that conviction and sentence, and the facts of the case as set out in the judgment of the High Court were somewhat similar in regard to the point which I am now considering. There was some dispute about the rights in respect of a certain land between the two factions, and a serious fight took place in which one of them was killed, and another one received grievous injuries and five others were also injured. The trial Judge virtually accepted the defence case, and although he held that both parties were armed and ready to fight, he also found that the accused were entitled in exercise of the right of private defence of person and property, even to cause grievous injuries to the other party who were the aggressors. The trial Judge, however denied the right of private defence to the appellant on the ground that it was not specifically pleaded by him, his main defence being that he had not taken any part in the occurrence, and had been falsely implicated because of the previous litigation between the parties. A Division Bench of the High Court held that the trial Judge had taken a mistaken view of the law, that the right of private defence can be pleaded even alternatively with the plea of alibi, and that right should not be denied to an accused person merely because he does not specifically plead it, provided that the circumstances found by the Court are such as clearly entitle him to the exercise of that right. They, therefore, allowed the appeal and set aside the conviction of the appellant as well as the sentence passed upon him, and directed that he be acquitted. In the case of Emperor v. Shaik Hasan Abdul Karim : AIR1944Bom274 a Full Bench of this Court has taken a similar view in a matter which went up before them on a certificate of the Advocate General under clause 26 of the Letters Patent. One of the points urged before the Full Bench was that the trial Judge had in his summing-up to the Jury, failed to refer to exception 4 to Section 300 of the Indian Penal Code which refers to death caused in the heat of a sudden fight without premeditation. The accused in that case did not plead that exception, or any other exception, and N. J. Wadia, J. observed in his judgment (at pp. 571-572 of Bom LR)=(at p. 277 of AIR) as follows:
'Under Section 105 of the Indian Evidence Act, when a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception is upon him and the Court shall presume the absence of such circumstances. This section does not relieve a Judge even in cases where the accused has not pleaded that his case comes within any particular exception, from pointing out to the jury such facts in the evidence as might justify the jury in taking the view that the accused's case was covered by one or other exception. It is admitted that this exception was not pleaded by the accused in the statements made by them. It was not even referred to by the two counsel who appeared for the accused at the trial in their arguments, and although these facts would not absolve a Judge from the duty of drawing the attention of the jury to circumstances in the evidence which might make the exception applicable to the facts of the particular case, they thay legitimately be taken into consideration in dealing with the point now raised before us, that the learned Judite was wrong in not drawing the attention of the jury to exception 4.'
N. J. Wadia, J. then proceeded to consider the question further, and came to the conclusion that a Judge was, however, not bound in his charge to the jury to explain exceptions which in his opinion were not applicable and for which there was no foundation whatever laid in the cross-examination, and on the facts of that case came to the conclusion that, under the circumstances of that case, there was no misdirection on that point in the learned trial Judge's summing-up to the jury. The position in the case of 46 Born LR 566 = AIR 1944 Born 274 was therefore, worse from the point of view of the accused than the position in the present case, in so far as, not only was the exception not pleaded in the statements of the accused persons, but even their counsel also had not referred to it in the course of their arguments. In the present case, on the other hand, though the accused have pleaded a defence of total denial in their respective statements, this point has been raised by the advocates for the accused at all stages of the trial. The decision of the Calcutta High Court in the case of Yusuf Sk v. The State, : AIR1954Cal258 was also referred to in the course of the arguments, but I do not think it necessary to deal with the same. I agree with the view expressed by the Patna High Court in Janki Mahto's case. : AIR1933Pat568 and by the Full Bench of our High Court in the case of : AIR1944Bom274 and in fact. I am bound by the latter of those decisions. I, therefore, hold that though the accused in the present case have in their respective statements taken up a plea of total denial of the offence, it is open to the learned advocate for the accused to raise an alternative plea of the right of private defence, if he is able to prove the same on the strength of the prosecution evidence itself.
7. The trial Magistrate has, no doubt come to the conclusion that the evidence before him shows that the 1st accused was cultivating the whole of the said Survey Number as a tenant, and was in possession of the same at the material time. The learned Sessions Judge in appeal has, however, come to a slightly different conclusion. Whilst he has not come to a contrary conclusion he has observed, 'It is not very clear from the evidence as to who was in actual possession of the land at the time of the occurrence'. He has not proceeded to examine that question any further because, in his opinion, the Court was not concerned with that fact. In the view that I take of this matter also, it is not necessary for me to decide whether the tenancy claimed by the 1st accused has been established by the material on record, or whether it has been proved that he was in actual possession of the land at the time of the occurrence in this case.
8. Section 96 of the Indian Penal Code lays down that nothing is an offence which is done in the exercise of the right of private defence, and Section 97 proceeds to divide the right of private defence into two parts, the first part dealing with the right of private defence of person, and the second part dealing with the right of private defence of property. We are concerned with the second part of the provisions of Section 97. The material portion of Section 97 enacts that every person has a right, subject to certain restrictions contained in Section 99 of that Code, to defend the property, moveable or immoveable, 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. In order to entitle the accused persons before me to the exercise of the right of private defence of property, it is, therefore, necessary for them to establish that Nabisaheb entered the land in question on the morning of the 1st of October 1966 with the intention of committing the offence of mischief or crirninal trespass or with the intention of attempting to commit those offences. If Nabisaheb came upon the said land in bona fide assertion of the right which he claimed to the same, however ill-founded that right may be, it cannot be said that his dominant intention in making the entry was to commit, or attempt to commit, the offence of mischief or of criminal trespass. The offence of mischief is defined in S. 425 of the I. P. C. That section defines the offence of mischief as the causing of destruction of property, or any change in or in the situation of property which destroys or diminishes its value, or affects it injuriously, and which is caused with intent to cause wrongful loss or wrongful damage to the public or to any person. The mere fact that any loss or damage may be caused to property would not constitute mischief, unless the intention of the alleged offender was to cause wrongful loss or wrongful damage to the person concerned. It is the duty of the criminal Court in such a case to determine what was the Intention of the alleged offender, and if it comes to the conclusion that the accused was attempting to assert a bona fide claim of his right, then he cannot be found guilty of the criminal offence of mischief as defined in S. 425 of the Indian Penal Code. The offence of criminal trespass is defined in S. 441 of the same Code. That section enacts that whoever enters into or upon property in th possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property, or having lawfully entered into or upon such property, unlawfully remains there with that intent, is said to commit 'criminal trespass'. Here also, the position is therefore the same. If an alleged offender is attempting to assert a bona fide claim of his right, however ill-founded in law that claim may be, he does not commit the offence of criminal trespass by entering upon the property or land in question. To establish criminal trespass, the prosecution must prove that the real or dominant intention was to commit an offence, or to intimidate, insult or annoy the occupant of the property. Turning to the facts of the present case in the light of this position, in my opinion, it is quite clear that Nabisaheb had effected entry into Survey No. 96/2 on the day in question in the bona fide assertion of his claim as a co-owner of that property. It is not as if his real or dominant intent in making that entry was to commit an offence or to Intimidate, insult or annoy the 1st accused and his claim of right was a mere cloak to cover the real intent, or constituted no more than a subsidiary intent. His primary intention in the present case was to assert the right which he has all along been claiming to the said land, and that conclusion of mine receives support from the fact that he had actually filed a civil suit to establish that right which was then pending in a Court of law. The assertion of the right was not, therefore, in the nature of an afterthought or a cloak but was something which he had always been canvassing, and, in those circumstances his act of entry upon Survey No. 96/2 cannot constitute either the offence of mischief or the offence of criminal trespass. If that be the position by reason of Nabisaheb effecting that entry, the 1st accused does not get the right of private defence under the second part of Section 97 of the Indian Penal Code. Under that section, the right of private defence of property arises only against an act which falls under the definition of one of the four offences specified there-in, namely, theft, robbery, mischief or criminal trespass, or an attempt to commit any of those offences. We are not concerned with the first two of those four offences. For reasons already stated by me, the act of Nabisaheb in effecting entry upon the land in question does not amount to the offence of mischief or criminal trespass. In that view of the matter, accused Nos. 1, 3 and 4 had no right of private defence as against Nabisaheb and his associates. The plea of private defence of property must, therefore, fail on the facts of the present case.
9. In that view of the matter, this revision application must be dismissed, and the order of the Sessions Judge confirmed.
10. Mr. Sabnis has pleaded fot setting aside of the sentence of fine which is the only sentence that now survives, in view of the fact that the learned Sessions Judge has reduced the sentence of imprisonment on each of the accused person to that already undergone by them at the date of his order. I see no reason to interfere in the matter of sentence after accused Nos. 1, 3 and 4 have already had the benefit of reduction in their substantive terms of imprisonment by the order of the Sessions Judge.
11. Though I have rejected the plea of private defence made by Mr. Sabnis on behalf of accused Nos. 1, 3 and 4, I must express my strong disapproval of the repeated attempts on the part of Nabisaheb to effect entry upon the land in question which is already the subject matter of a civil litigation between the parties and which has given rise to the ugly incident in this case. I do not think that the future repetition of such acts by Nabisaheb could any longer be said to be an attempt at bona fide assertion of his rights, and I do hope that both sides will refrain from tailing the law into their own hands.
12. Revision dismissed.