S.W. Puranik, J.
1. The appellant stands convicted for the offence punishable under section 307 Indian Penal Code and sentenced to suffer R.I. for 4 years by the judgment and order passed by the Additional Sessions Judge, Akola in Sessions Case No. 67/78 decided on 18-9-1979.
2. The allegation of the prosecution was that on 28-6-1978 at village Warud the appellant had stabbed one Pralhad Govinda Chavan with a knife in order to cause his death.
3. The relevant facts of the prosecution case may be narrated briefly in order to understand the circumstances under which the impugned incident took place.
4. One Chimanaji Sambhaji Gawande had owned agricultural land and house at village Warud. His first wife Walambi died without any issue. He then married Ambabai from whom he had two daughters. He then re-married one Parvata who was already having six sons living from her first husband. The present appellant Ramchandra is the son of Parvata from her first husband. After Parvata's marriage with Chimanaji she came to reside with him at his house at Warud. She also brought four sons from her first marriage along with her to stay at Warud. They are Ramchandra, Motiram, Kashiram and Krishna. When Parvata came to reside with Chimanaji with her four sons, the other wife Ambabai started living at Falegaon where also Chimanaji had another house.
5. Domestic quarrels ensued between Parvata and Chimanaji at Warud because she had brought with her, her sons of first marriage. Finally because of these quarrels, Chimanaji decided to go and reside with his daughter at Falegaon. He asked Parvata to accompany him, but she refused. Thus he left the house at Warud in possession of Parvata and her sons.
6. After staying away at Falegaon for a period of about 2 years, in these circumstances, Chimanaji decided to bring his household utensils and other articles from the house at Warud to Falegaon since he suspected that Parvata and her sons from former marriage were selling the tin sheets over the roof and other articles. Chimanaji, therefore, hired two bullock carts belonging to Mahadeo and Datta and also requested his son-in-law Maruti, Maruti's brother Narayan and another relative Pralhad to accompany him to Warud along with some labourers. He reached his house at Warud on 28-6-1978 at about 11.30 a.m. At that time his wife Parvata and one son Kashiram were present in the house. Chimanaji informed her his intention to take her to Falegaon, but she refused. Chimanaji then insisted that he will take away the tin sheets from the roof and utensils to Falegaon. Parvata objected and sent her son Kashiram to call for Ramchandra the present appellant. In the mean time Chimanaji climbed upon the tin shed and started removing tin sheets. The appellant reached the place at about the same time. Parvata also went away to report the matter to the police. Appellant objected to Chimanaji from removing the articles and utensils and also abused him. Chimanaji told him that he was carrying his own articles. The appellant took out one stick which was available at Chapri and dealt a stick blow on the waist of Chimanaji. Pralhad who was standing near Ramchandra also questioned him for giving abuses to Chimanaji and on this the appellant Ramchandra took out a knife from his pocket and stabbed Pralhad with his knife in the abdomen. The appellant then ran away with his knife. Pralhad was injured and his intestines came out. He was then carried to Mangrulpir dispensary. It appears that a report of Parvata and Ramchandra was already received by the P.S.I. Mangrulpir. The P.S.I. immediately went to the dispensary with the staff and recorded the statement of Pralhad the injured. The P.S.I. by name Shri Katke, therefore, registered an offence against the appellant and conducted the investigation. The injured Pralhad was later removed to the Akola General Hospital for operation.
7. After the completion of the investigation the appellant was charge-sheeted for the offence under section 307 of Indian Penal Code. The case was committed to the Court of Sessions. The appellant denied the commission of the offence and pleaded not guilty. The relationship between the appellant and the said Chimanaji is admitted by the accused. In his defence the accused also pleaded that he had a share in the said house property. He also contended that the tins and other articles belong to him; that Chimanaji and others were forcibly removing the tins and other articles and were committing dacoity and for which he had reported the matter to the Police Station. He further submitted that Chimanaji and others have been arrested and are being prosecuted for the said offence of dacoity. As regards the injury sustained by Pralhad, the defence of the accused is that he may have received the same due to fall of the tin sheet on the body of Pralhad.
8. The learned Sessions Judge after recording the evidence tendered by the prosecution and after examining the appellant under section 313 Criminal Procedure Code came to the conclusion that the prosecution has proved the case beyond all reasonable doubt against the appellant and convicted him for the offence as already stated above.
9. Shri P.V. Hardas the learned Counsel for the appellant contended that no offence has been brought home much less the one under section 307 against the appellant. His contention was that the trial Court has also committed an irregularity in the sense that the Investigating Officer ought to have filed both these charge-sheets and the counter cases together and they should have been heard and tried together by the same Judge. He submitted that the report of the dacoity lodged by the appellant was prior in point of time and for which Chimanaji and his colleagues including Pralhad were charge-sheeted. Since on the subsequent report, the Investigating Officer has charge-sheeted the appellant in respect of the same incident, the trial Court ought to have heard and decided both the cases together. Even otherwise, according to him, the appellant had every right of defence of his own person and property. Thus, his alternative contention was that even if accepting that the appellant had injured Pralhad at the material time; he was within his rights to defend his property. He also elaborated by stating that from the prosecution evidence itself it can be seen that the appellant was all alone at the material time and Chimanaji along with Pralhad and 6 other persons were forcibly removing the tins. In that event of the matter, the appellant would be justified in causing the injury for the protection of his property. The appellant, therefore, claims to be acquitted.
10. Shri M.A. Garud, the learned Asstt. Government Pleader and Public Prosecutor supported the impugned judgment. It was his contention that the appellant had no right in the property and further Chimanaji and his colleagues had every right to remove the tin sheets and articles from his own house. He submitted in reply to the alternative contention of the appellant that if at all Ramchandra the appellant had any right of defence of his person or property he has clearly exceeded the same by causing serious harm and injury to Pralhad which was much in excess of the required realisation. The Public Prosecutor, therefore, supported the conviction and claimed dismissal of the appeal.
11. The material witnesses examined by the prosecution in this case are Chimanaji (P.W. 1), Pralhad (P.W. 2) the injured and Narayan (P.W. 3).
12. In his examination in Chief Chimanaji (P.W. 1) narrates the relationship between himself, Parvata and appellant etc. He admits that Parvata after her marriage with him came to reside at his house at Warud. She also called her four sons by former marriage to come and stay in his house at Warud and that because of this he used to have constant quarrels with Parvata. He, therefore, decided to go to Falegaon and reside with his daughter. He also states that after staying at Falegaon for about 2 years, he decided to go to Warud and bring the tin sheets and other articles from the house at Warud to Falegaon. He reached Warud at about 11.30 a.m. on the day of the incident accompanied by Mahadeo, Datta, Narayan, Pralhad and other labourers. His wife Parvata and her son Kashiram were present then. He asked Parvata to go with him to Falegaon, but see refused. Parvata sent away her son Kashiram to call for Ramchandra. He then started removing the tin sheets. Just then Ramchandra came and started abusing him. In the wordy dual Ramchandra took out a stick from Chapri and dealt a stick blow on the waist of Chimanaji. Pralhad went near Ramchandra and questioned him for giving abuses to Chimanaji. On this Ramchandra took out a knife from his pocket and stabbed Pralhad.
13. In his cross-examination he admits that Parvata was staying at Warud while he was staying at Falegaon since two years prior to the incident. The contradiction has been brought out on record from his police statement at portion marked 'A'. In his police statement he had stated that when he expressed his intention and started removing the tin sheets, Parvata and her son had objected to the same. He denies the knowledge that Parvata and her son had lodged a report to the Police Station that he and his colleagues had committed thief. It has also come on record in his cross-examination that at the material time he was accompanied by six persons including labourers. In para 10 of his cross-examination he admits that accused dealt knife blow on Pralhad after he removed the tins and had placed them on the bullock cart. There are several contradictions brought out on record in his cross-examination to show that he was not adhering to the original version narrated to the police. However, he also admits that before he had reached the Police Station, the appellant Ramchandra was already there and finally he admits that in respect of the same incident, he and his colleagues were arrested by the same Police Station and are being prosecuted for the offence of dacoity committed in the said house. The suggestion that Pralhad may have injured by falling tin shed on his stomach was denied by this witness.
14. The next material witness is Pralhad (P.W. 2) the injured. He is also the complainant who lodged the first information report (Ex. 14). His version in the first information report is that he along with Chimanaji and 5 or 6 labourers had gone to bring the house-hold things of Chimanaji to Warud. That Chimanaji had gone over the roof to bring down the things and he was standing aside and that at that time Ramchandra dealt him a blow with knife on the stomach. In his examination in chief he clearly admits that Chimanaji's wife Parvata and son Kashiram were present at the material time and Kashiram went away to call Ramchandra. Chimanaji told Parvata to go with him to Falegaon, but she refused. Chimanaji then began removing the household articles from the house and then climbed the roof of the house. He also started removing the tins when Parvata ran away from the spot. Ramchandra then come there. He called upon Chimanaji to get down. He abused Chimanaji. He gave a stick blow to Chimanaji. It is at this point of time when Ramchandra asked him as to who he was to talk in the middle and so saying Ramchandra took out a knife and gave a blow on the stomach of the witness. In his cross-examination, he has tried to suppress some material facts. He denied that there were labourers with them at the material time. But the contradiction is borne out from his first information report (Ex. 14) itself wherein he had stated that he had gone with Chimanaji and 5, 6 labourers to bring the goods to Warud. In terms he admits that Parvata and her son were present when the tins were removed and they told Chimanaji not to remove them. He also admits that Parvata refused to go with Chimanaji and/or allowed the tins to be removed and then she ran away. Kashiram also left the place. Lastly, he admits that Ramchandra also told Chimanaji not to take away tins and it is only when this witness Pralhad intervened that Ramchandra assaulted him and gave one knife blow. The witness also admits that he is an accused in the case for forcibly removing articles from the said house in respect of the very incident and that the case is committed to Sessions.
15. Narayan is the last witness (P.W. 3). In his examination-in-chief itself while narrating the incident he states that Parvata told Chimanaji that she would see as to how he carries the articles away. He also admits that Parvata as well as Kashiram had left the place to call Ramchandra. Ramchandra gave abuses to Chimanaji and all the others who were forcibly removing the articles. The main instance, however, can be reproduced in his own words :
'Chimanaji climbed down the roof. Chimanaji told Ramchandra that he would carry his articles from the house. Ramchandra took a stick and dealt a blow on the waist of Chimanji. Pralhad went near Ramchandra and asked him as to why he had beaten Chimanaji. Pralhad told Ramchandra to do everything in legal manner. Ramchandra took out a knife and pierced it into stomach of Pralhad and after taking it out ran away with.'
In his cross-examination he states as follows :---
'The dispute started after the first tin was removed. The dispute started between Ramchandra and Chimanaji. Pralhad was standing to one side and did not intervene. Ramchandra told Chimanaji that he would not allow the tins to be removed. Chimanaji said that he would carry away the tins. Parvatabai was not present at that spot that time. Accused Ramchandra was alone there that time. We 7 persons were standing near the house of when the tin was removed.
This witness was contradicted with portion marked '3' from his police statement wherein he had stated that Parvata prevented Chimanaji from removing the articles. Several other minor contradictions regarding the sequence of things have been brought on record. Lastly, he admits that in respect of this very incident, a case is going on against himself, Chimanaji and others before the Court.'
16. As regards the injury caused on the person of Pralhad, there is not dispute. It is to be noted that even though the defence of the accused was that the said injury may have been sustained by Pralhad because of fall of a tin sheet, no such suggestion or quarry has been put to the Medical Officer Dr. Vasant (P.W. 4). The Medical Officer (P.W. 4) has described the injury sustained by Pralhad on his stomach. It is an incised injury obliquely placed on the left side of the stomach. It's margins are regular and sharp and the size of the wound was 1' x 1/4' x 3/4. The Doctor suspected injury to the small intestine and internal organ. He also opined that such an injury can be caused by knife. As regards the injury, he says that the injury was sufficient in the ordinary course of nature to cause death. In his cross-examination another material fact has come on record. He admits that the present appellant Ramchandra was also examined by him during the day. He was shown the original certificate issued by this doctor in respect of examination of Ramchandra from the Sessions Case No. 18/79. The said certificate shows that Ramchandra had sustained one contusion on upper part of his back. It is pertinent to note that in his cross-examination in para 6 only the manner in which the knife would have caused such an injury were put to the doctor. No suggestion that such an injury can be caused by a fall of tin sheet from the roof was given to this witness.
17. The rest of the witness are not material for purpose of this case. They only relate to the spot panchanama, discovery memorandum and seizure of the knife an the seizure of the cloth of the injured.
18. Thus, on the detailed analysis and substance of evidence as narrated above, the learned Sessions Judge had come to the conclusion that Ramchandra had intentionally caused the injury on the stomach of complainant Pralhad with knowledge that such injury was likely to cause the death. He, therefore, convicted accused Ramchandra under section 307 of the Indian Penal Code. On hearing both the Counsel for both sides, I am of the opinion that the findings arrived at by the learned Sessions Judge in holding the appellant guilty under section 307 Indian Penal Code is not sustainable. The same is erroneous for the following reasons.
19. It is an admitted position that Ramchandra was the son of Parvata from her first husband. That after Parvata's marriage with Chimanaji, she was residing with him at his house at Warud in her own right. It was within the knowledge of Chimanaji that Parvata and her sons from her first marriage were residing with her. It is Chimanaji who alone shifted to Falegaon and was residing away from her at Falegaon for a period of two years prior to the date of incident. Thus, the possession over the house at Warud by Parvata and her sons cannot be termed as illegal. Even assuming the same to be in their right as licensees of Chimanaji, the licence has not been revoked and Chimanaji had no right to take forcible possession of the said property without recourse to the procedure prescribed by law. It is in these circumstances that the evidence in respect of the incident in question will have to be viewed.
20. It is also an admitted position from the three eye-witnesses examined in this case and discussed above that at the material time Parvata protested against the forcible removal of tin sheets and house-hold articles that Ramchandra also protested against the same; that Parvata and Kashiram had left the spot and Ramchandra alone was protesting against the forcible removal of the articles of he was then in legal possession of the same.
21. It is also an admitted position that at the material time Ramchandra was alone while the persons removing the tin sheets and articles forcible against the protests were six in number.
22. It also transpires from the prosecution case itself that the incident has happened within a very short span of few minutes and it is while he was abusing Chimanaji and had given him a stick blow from a stick which was available nearby that Pralhad the injured had intervened in the quarrel and it was suddenly at that time that Ramchandra assaulted upon the person of Pralhad and had given him only one single blow of knife on the stomach.
23. From these material facts which have come in the prosecution evidence, it is clear that Ramchandra did not have the intention to cause death of Pralhad. He had no animosity with Pralhad. He was protesting against the removal of articles which were legally in his possession and that, therefore, he had every right to protect his property.
24. Nothing is an offence which is down in exercise of a right of private defence, and the right of private defence are of two categories, (i) for the right of protection of ones person; and (ii) for the right of protection of ones property. The said right of defence of property exists to the protection of ones own property or of any other person against any act which is an offence falling within the definitions of theft, robbery, mischief or criminal trespass or attempt to commit theft, robbery, mischief or criminal trespass. No doubt these rights have certain limitations as set out in section 99 of the Indian Penal Code, however, under section 103 of the Indian Penal Code, the right of private defence or property extends to the voluntarily causing of death to any other person if the offence the committing of which or the attempt to commit which occasions the exercise of such right and falls within the categories of robbery or house breaking or mischief or trespass. In the instant case, from the facts and circumstances on record and which emerged from the prosecution case itself, it is clear that the appellant had every right to defend his property against the act of robbery which was actually being committed in his presence and to which he had objected. One single blow of knife given by the appellant, therefore, cannot be said to be in excess of the exercise of his right of private defence of property. No offence much less the one under section 307 of the Indian Penal Code can be said to have been brought home to the accused. It is all the more so from the fact that Ramchandra had also reported the act of robbery by the prosecution witnesses and the Police Station Officer, Mangrulpir has not only registered the said offence but after due investigation he thought there was sufficient material to prosecute Chimanaji, Pralhad and others for the offence of robbery and have, therefore, charge-sheeted them accordingly. It would have been fair and proper for the trial Court to have tired these two counter cases simultaneously or one after the other. That has not been done. In any case, it is more than clear that in the facts and circumstances of the present case, the appellant was within his right to defend his property and that from the narration of the incident by the prosecution, it is clear that he has not exceeded the said right.
25. In the matter of Ram Ratan and others v. State of Uttar Pradesh, A.I.R. 1967 S.C. 619 their Lordships of Supreme Court have observed that it is a peculiar feature of our criminal law that where a trespasser has been in the wrongful possession of the land which is for common enjoyment of other villagers, the members of the village or the real owners are not entitled in law to throw him out but to take recourse to the legal remedies available for any member of the community, for the possession of the trespassers he is normally visited with the owners penalty of law.
The 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 circumstance the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law. While it may not be possible to lay down a rule of universal application as to when the possession of a trespasser become complete and accomplished, yet, one of the tests is to find out who had grown the crop on the land in dispute.
26. In the instant case as already stated above, even if assuming that Ramchandra was living in the house of Chimanaji at Warud against the wish of Chimanaji the true owner, yet he was living there for the period of two years in the minimum to the knowledge of Chimanaji. Thus even if Ramchandra was held to be a trespasser of the said house, Chimanaji the true owner, did not have a right to forcibly throw him out and take the property from the possession of Ramchandra. Chimanaji had only one remedy and that was to approach the Civil Court for necessary relief. In the circumstances of the case, therefore, in my opinion, Ramchandra had every right to defend his property against the wrongful action of Chimanaji and was, therefore, within his right to have caused such injury as has been described. The reasoning of the learned Sessions Judge is thus erroneous and the appeal deserves to be allowed. Hence the following order.
27. Criminal Appeal No. 295/1979 is allowed. The conviction and sentence imposed upon the appellant under section 307 Indian Penal Code are quashed and set aside. The appellant be set at liberty forthwith unless otherwise required in any other case. His bail bonds shall stand discharged.