C. Honniah, J.
1. The appellants have been convicted by the Second Additional Sessions Judge, Bijapur of committing the offence under Section 304, Part II, read with Section 34 I.P.C. and sentenced to undergo rigorous imprisonment for a period of 18 months.
2. The facts alleged by the prosecution are these; Irappayya Jambagi was the owner of Section No. 186/1+2A of Satihal village in Bijapur District, called 'Hallad Hola'. Out of this survey number, he sold 14 acres to Rajesaheb Kannoli (A-l) under the sale deed Ex. 88, dated 5.6.1959. Even though the recitals in the sale deed were to the effect that possession was delivered to the vendee, the vendor continued to remain in possession of the property sold and was cultivating the same giving 1/4th share of the produce thereof to the vendee. A-1 attempted to take possession of the property he purchased, but Irappayya resisted the same. In this behalf there were disputes between them.
Two criminal eases had been filed against them for various offences including trespass and assault and those cases came to be compromised. Through the intervention of the elders of the village including Siddangouda Patil (P.W. 23) the parties came to an agreement whereby on Irappayya repaying Rupees-4000/- to A-1, the latter was to recover the land to the former. Some time after this agreement, Irappayya sold the remaining 16 acres in that survey number to one Vittappa for Rs. 5500. Out of this sum, Irappayya is stated to have paid Rs. 3000/- to A-1. Some time after this, he approached A-1 and requested him to recovery the land on payment of the balance of Rs. 1000/-. At that stage, it is the case for the prosecution that A-1 resoled from the agreement. Therefore, Irappayya filed a suit in this behalf in O.S. No. 63/63 in the Court of the Civil Judge, Junior Division, Bagewadi to enforce specific performance of the agreement. He contended therein that he was a tenant of the land and A-1 was causing obstruction. He prayed for a declaration that he was a tenant and to restrain A-1 from interfering with his possession. Thereafter, Irappayya raised cotton crops in the land.
3. On 1.3.1964 at about 12 noon, Irappayya took his son Basalingayya (P.W. 2) to the land stating that the children of A-1 were plucking cotton that had been raised by him in the land On the way, they requested Basappa Bawoor (P.W. 9), Basappa Hagattagi (P.W. 10) and Malkappa (P.W. 11) to accompany them to the land in order to advice the children of A-1. On reaching the land, these persons noticed five children of A-1 plucking cotton, among whom two were grown-up daughters of A-1, Irappayya and others snatched away the cotton that had been plucked by the children and appear to have given them beating also. The children therefore left the field weeping towards the land called 'Achari field', where A-1 and the other accused were engaged in agricultural operations. Even after the children left the field, Irappayya and his companions remained in the land.
Half-an-hour thereafter, the accused came, there in a bullock cart from their land where they were working. It is the case of the prosecution that they came there armed with deadly weapons like axes, swords and clubs. Seeing the accused, Irappayva raised alarm and hearing his cries, Isarappa (P.W. 12), Thotappa (P.W. 13), Gurlingappa (P.W. 14). Siddappa Naraboli (P.W. 16) and Siddappa Mayagol (one of the deceased) came to the spot. Among them, Siddappa Mayagol was armed with a deadly weapon. A fight ensued between them, in the course of which Irappayya and Siddappa Mayagol were seriously injured and shortly thereafter died. P.W. 2 Basalingayya also received injuries and he being afraid, ran to the village to intimate the matter to the Patel. Accused 5 and 6 were also seriously injured. They were removed by the other accused persons to Bagewadi dispensary, as their condition was serious, where their dying declarations were recorded.
Basalingayya informed his mother as to what happened in the land. She went to the house of the police Patel Bapugouda (P.W. 19) to inform the matter, but she was told that the Patel had gone to his land. In the meanwhile, Basalingayya informed Bhasya, Walikar of the village about the incident. Bhasya contacted the Patel in the latter's field and informed him what he learnt from Basalingayya. The Patel went to the spot with some others and found the dead bodies of Irappayya and Siddappa Mayagol. He kept watch over the dead bodies and then went to Bagewadi Police station with Basalingayya to inform the Police. At Bagewadi Police Station, Basalingayya gave his complaint Ex. 7 to the Sub Inspector of Police (P.W. 30) at about 8.30 p.m.
Even before this, accused 1, 2, 5 and 6' went to the Police Station at 6 p.m. and accused 6 gave information regarding the incident as per Ex. 72, on the strength of which crime No. 13/64 was registered for offences under Sections 147, 148, 324 and 326 read with Section 149 I.P.C. against the party of Irappayya. On the complaint of Basalingayya, Crime No. 14/64 was registered for offences under Sections 147, 148, 302 and 324, read with Section 149, I.P.G. As the condition of accused Nos. 5 and 6 was serious, they were sent to the Civil Hospital, Bijapur, for treatment. The next morning, the P.S.I. went to Setihal and held inquest proceedings over the two dead bodies. By about 1 p.m. Shri Kulkarni, C.P.I., (P.W. 31)' took over the investigation. After completing; the investigation, he placed charge-sheet against the accused for offences under Sections 148,. 302 read With Section 149 or read with Ss 34 and 324 read with Section 149, I.P.C. alleging that they being members of an unlawful assembly, committed the said offences using force and violence in the prosecution of the common, object of that assembly and causing grievous1 hurt to someone or the other of the party of the complainant in furtherance of that common object.
4. The defence of the accused was that A-1 was in possession of 'Hallad Hola' after he purchased 14 acres from Irappayya. Disputes arose between them in connection with this land and in this behalf there were criminal cases. On account of this there was ill-will between them. A-1 had raised cotton crop, which was ripe about the time of the date of the incident. Two or three days preceding the incident, the children of A-1 plucked cotton and on the date of the incident also they went to the field for the same purpose. While they were plucking cotton, Irappayya, Siddappa Mayagol and P.Ws. 2 and 9 to 15 went to the land to threaten the girls and snatched away the cotton, which they had plucked and pushed out the girls from the field. One of the daughters of A-1, viz. Jashirabi left the field weeping and apprised the accused who were engaged in harvesting jawar as to what happened in 'Hallad Hola' They found marks of violence on the face of Janirabi.
Thereupon, they came near 'Hallad Hola' and found Irappayya and his companions looting cotton crop and Irappayya and Siddappa Mayagol being armed with axe and sickle and others with clubs and axes. They questioned them as to why they beat the children and why they had come to the land and removed the cotton crop forcibly, whereupon Irappayya said that he would not stop at the mere looting, but he would hit out. So saying, they attacked them. Then they began to defend themselves and a fight ensued between them. A-2, A-3, A-5 and A-6 fell down injured and so they were removed to Bagewadi Police station, among whom the condition of A-5 and A-6 was serious.
5. The prosecution mainly relied upon the evidence of P.Ws. 2 and 9 to 15 to prove their case as to what took place in the land. They also relied upon the evidence of Siddagouda Patil (P.W. 23), Chairman of the Village Panchayat and Sangappa (P.W. 21), Talati of the village.
6. There cannot be any dispute that Irappayya and Siddappa Mayagol were brutally done to death on the afternoon of 1.3.1964. The medical evidence in this case proves that there were many injuries on the dead bodies of these two persons and that on account of these injuries the two persons died instantaneously. The accused admit having taken part in the fight. Even the prosecution case is that the fight between the two parties ensued in the 'Hallad Hola' after the party of the complainants snatched away the cotton that had been plucked by the children of A-1 and were sent away from there. The prosecution case is that Irappayya was in possession of the land as the children of A-1 had gone there to pluck cotton without any right, they had to send them away after snatching the cotton and it is thereafter, the accused came there and attacked them all of a sudden and caused the death of Irappayya and Siddappa Mayagol.
7. It becomes, therefore, necessary to examine the rival contentions of the parties as to who was in possession of the land and who had raised the cotton crop. Irappayya sold 14 acres in 'Hallad Hola' to A-1 in 1959 under Ex. 88. The recitals therein show that the transaction was an out-and-out sale and on the date of the sale deed, possession was handed over to A-1. Till 1962, there appears to be no trouble between the parties and A-1 continued to be in possession. For the first time in 1962, Irappayya seems to have thought of getting back the land from A-1. He gave a Wardi to P. W. 21, the Talati of the village to enter his name in the Pahni register as the person cultivating the land sold to A-1. On the basis of that Wardi, P.W. 21 made a pencil entry. This was disputed by A-1.
The Tahsildar of Bagewadi, after making an enquiry, ordered the deletion of the name of Irappayya. P. W. 23 has stated in his evidence that since the date of the purchase, A-1 was in possession of the land. That is also the evidence of the Talati. Therefore, it is clear that A-1 was in possession of the land in question. The finding of the learned Sessions Judge, which is based on facts proved on this point, is as follows:
I feel satisfied that the possession of the land was with accused No. 1 all along. As I have already stated, accused No. 1 is not shown to have been a money lender. Accused No. 1 admittedly is a cultivator und tiller of the soil and there is no reason as to why after an outlay of Rs. 4000 he should proceed to allow the land to continue with Irappayya Jambagi and he himself accept a fourth of the produce as a return for the outlay. I do not, therefore, believe the theory canvassed by the prosecution that the land Hallad Hola had been in possession of Irappayya Jambagi. I accept the case of Accused No. 1 in this behalf and hold that he had been in possession of the Hallad Hola and therefore, it was he who had raised the cotton crop in 1963-64.
8. Since 1962 Irappayya was making attempts to take possession of the land forcibly, which was being resisted by the accused. As there were criminal cases between them, the elders of the village advised A-1 to recovery the land to Irappayya on taking Rs. 4000, for which it appears, A-1 agreed. Thereafter it appears, A-1 resiled from the agreement and therefore Irappayya filed a suit for specific performance of the agreement and for an injunction that A-1 should be restrained from interfering with his possession. In that suit he had asked for a temporary injunction, but the Court refused to grant it. Having failed in this suit, Irappayya appears to have decided to take the land forcibly from A-1.
9. There is satisfactory evidence in this case to show that three days preceding the date of the incident, the accused were engaged in plucking cotton crop, which was ready for harvest. On the date of the incident, children of A-1, among whom two were grown up daughters, had gone to the land to pluck cotton as usual. While they were so engaged, Irappayya and P.Ws. 2 and 9 to 15 went there, Irappayya himself armed with a battle axe, and Siddappa Mayagol with a sickle. The prosecution case is that others were not armed with weapons. But there is indication in this case to snow that they were also armed with clubs. The story of the prosecution that Irappayya left the house along with his son to the field and on the way he picked up the others is an after thought. P.W. 2 in his complaint to the Police on that evening has categorically stated that he, his father and P.Ws. 9 to 14 along with Siddappa Mayagol went to Hallad Hola. It is clear from the evidence and other circumstances proved in this case that the party of the deceased had gone to the land on that day to take possession of it by force and violence. The view of the learned Sessions Judge on this point which is correct is thus:
Considering, therefore the fact that Irappayya having failed to obtain an interim injunction in his suit for injunction and declaration, his going to the land on that fateful day must have been planned for the purpose of establishing his possession of the land. In these circumstances, I am of the opinion that Irappayya Jambagi, Siddappa Mayagol and P.Ws. 2, 9, 10, 11, 12 and 15 had all gone to the land together with the object of remaining on the Hallad Hola by use of force, if necessary.
10. It is sought to be made out by the prosecution that P.Ws. 9 to 12 and 15 and Siddappa Mayagol were disinterested persons and they went to the land at the request of Irappayya in order to advise the children of A-1. P.W. 9's uncle's leg was cut off. In that connection A-1's father was one of the accused persons and was convicted. From his own admission in cross-examination, it could be seen that he was involved in a number of criminal cases and mostly he was moving with bad characters. P.W. 10 was a coolly working under the deceased and he was a witness on his behalf in the Civil suit against A-1. He also was one of the accused persons along with P.W. 9 in connection with the looting of the crop of one Sangappa. P.W. 12 was also a witness in a suit against A-1. In that suit he had sworn to an affidavit in support of Irappayya. P.W. 13 is another coolly against whom A-1 had given a complaint as he interfered with the possession of the land his father had sold to A-5. In that connection he had been arrested by the Police. The evidence in this case shows that all these witnesses, in some way or the other, were hostile to A-1 and his brothers and they had a common cause against him along with Irappayya.
11. After going to the field, these persons abused the children of A-1 snatched away the cotton that had been plucked and in addition Irappayya beat one of the daughters of A-1. The children of A-1 being afraid, left the field weeping towards 'Achari field', which is about half a mile from Hallad Hola. The case of the accused is that they were harvesting Jowar crop in their land from morning and at about 1 P.M. the children of A-1 went there weeping and informed them that Irappayya and his men took away the cotton and assaulted one of them and drove them away. From the prosecution story itself it could be gathered that what the accused have stated, in all probability, is true.
Shortly thereafter, the accused persons came to Hallad Hola and saw Irappayya and his party men armed with weapons and looting the cotton crop. Therefore, they had every right to defend their property. When Irappayya and his party men attacked the accused persons, they also became entitled to defend their person. The story of the prosecution that they were not armed, and went there to question Irappayya cannot be believed. As a matter of fact, the finding of the learned Sessions-Judge, which is based on proper appreciation of evidence and circumstances, is that the accused went there carrying weapons and as soon as they went there, a fight broke out between the parties. He has also observed that the party of Irappayya consisted of Siddappa Mayagol, who was a strong man and who, according to the admission on behalf of the prosecution, was powerful enough to meet four persons. In these circumstances, the accused persons had no other alternative but to defend themselves and also defend their property. The learned Sessions Judge has held that Irappayya and his group were clearly the aggressors and that the accused acted obviously in exercise of the right of private defence of the property. The learned Sessions Judge, was, however, of the view that there was no right of private defence of person available to the accused. According to him, they have not explained how Irappayya and Siddappa Mayagol were murdered.
Further, according to him, the injuries found on Irappayya and Siddappa Mayagol were more in number and serious in nature as compared to the injuries found on some of the accused persons and therefore he was of the view that the accused had only the right of private defence of their property and not beyond. Therefore, he holds that the accused have exceeded their right of private defence. The learned Sessions Judge was clearly wrong on this view. From the evidence it would be seen that the party of the accused had become aware that the complainant's party wanted to take forcible possession of the land, and that, in order to protect their property and also from the aggression of the complainant, they went there and, in all probability, interfered with the complainant's party and this evidently resulted in a fight between the parties and the consequence was that Irappayya and Siddappa Mayagol died at the spot, while two men on the side of the accuse were injured. It seems to me that if the party of the accused were rightfully in possession of the property on the date of the incident and had raised crop, taking into consideration the manner in which the complainant's party behaved before the accused came there, the accused found it necessary to protect their property and also defend themselves from the aggression on the part of the complainant's party and they were justified in taking such actions as they thought were required under the circumstances.
12. It is contended on behalf of the State that the accused had previous intimation of their adversary's intention and if so they were bound to have obtained the assistance of the Police or the Police Patil before proceeding to their land with a view to resist the obstructions of the complainant's party. If they failed to obtain such assistance, they took the risk of the consequences, and are criminally responsible for the injuries inflicted by them, though in consequence of the aggression on the part of the complainant's party. The question, then, is whether there was time for the accused to have recourse to the protection of the public authorities. If there was, then, under the third clause of Section 99 of the Indian Penal Code, there was no right of private defence. This clause must be read with the first clause of Section 105. The right of private defence of property commences when a reasonable apprehension of danger to the property commences. Before such apprehension commences, the owner of the property is not called upon to apply for protection to the public authorities. The apprehension which justifies a recourse to the authorities ought generally to be based on some information of a definite kind, as to the time and place. of the danger actually threatened.
In the present case, the accused received information from the children of A-1 that the complainant's party not only robbed off cotton from them, but also assaulted them. In such circumstances, the accused were not bound to go to the public authorities. When the accused received a definite information of the actual presence of the complainants on their land, looting the crop, they were entitled to go at once to protect their property. If there had been delay on the part of the accused in reaching the field by resorting to public authorities, the very mischief threatened to their property would have been completed. I am of opinion, therefore, that the accused had a right of private defence of their property and after they went there, they also got the right of private defence of their person.
13. The question, therefore, now is whether the accused exceeded their right of private defence. In finding the facts to which the provisions of law about private defence are to be applied, I lean to the statements of the accused, because they are to be believed, as the material witnesses on behalf of the prosecution, who speak about the incident, have not told the truth. The evidence on behalf of the prosecution is doubtless tinged with animus; but I do not think it proved that the accused on entering the field, made any show of arms or of force to overcome the resistance. Their story that the complainants replied to their lawful remonstrance by unlawfully assaulting them with dangerous weapons, is under all the circumstances more probable than that the complainant's party after entering into the land, submitted without resistance to a very severe thrashing and infliction of fatal injury on Irappayya and Sid' dappa Mayagol and did not even give the accused any beating.
14. In Makhdoom Singh v. Emperor AIR 1945 Oudh 296, the facts were these : B and his father had for a long time been in lawful possession of the plot in dispute as tenants. They had sowed, reaped and stored the crop. S by means of a forgery was entered as being in possession of the disputed plot in the patwari's papers. S thereupon went to the plot with a gang of men to take forcible possession of the crop. B was on his guard and had collected a number of men and when S and his party came to take the crop away by force B and his party resisted as a result of which a marpit ensued in which S's gang was defeated and one of them was killed. Each party consisted of more than five persons.
It was held that B had an incontrovertible right to maintain possession lawfully achieved and resist the theft of the crop and the other side by using force attempted to commit robbery; once an attempt was made by the other side to carry away the crop of B and force was used by the party of S to overcome the legitimate resistance of B and his party, the right of private defence of the body arose in favour of B and his party; as accused B and his party had established that they acted in the exercise of the right of private defence the burden of proving that they exceeded that right lay upon the prosecution; as one of B's party had actually received a grievous hurt and others had received several injuries it could not be said that in subsequently causing the death of one of S's party B and his party exceeded the right of private defence of body.
15. If the fact be that the party o the complainant were the aggressors, as found by the Court below which in my opinion, is correct, the party of accused was entitled in the exercises of their right of private defence of property to use such force or violence as was necessary to prevent the aggression and in the circumstances of the case it does not appear that they used more violence than was necessary on the occasion. The party of the complainant were first in the land armed with deadly weapons and in the company of persons who were hostile to the accused. According to the statement of the accused, which there seems to be no reason to disbelieve, they were attacked as soon as they went near the land, on being told by A-1's children that complainant's party drove them away beating, after taking away cotton, when the accused went there and remonstrated with the complainant's party but without effect.
Thereafter, a fight took place. In such circumstances, there is no rule of law or of prudence, which lays down how the accused should exercise the right of private defence. The accused must have apprehended that the other party had come with the intention of looting the crop raised by the accused by committing robbery and also for the purpose of dispossessing them. They must also have had a reasonable apprehension that unless they acted in exercise of their right of private defence, the members of the other party would cause death or grievous hurt to one or more of them. In such circumstances, the accused could not be expected to weigh their blows in golden scales.
Under Section 100 IPC if the accused claiming the right of private defence has to face assailants who can be reasonably apprehended to cause grievous hurt to him, it would be open to him to defend himself by causing the death of the assailant. In Jai Dev v. State of Punjab : 3SCR489 it was pointed out that where an individual citizen or his property is faced with a danger and immediate aid from the State Machinery is not readily available, the individual citizen is entitled to protect himself and his property. That being so, it is a necessary corollary to the doctrine of private defence that the violence which the citizen defending himself or his property is entitled to use, must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. The exercise of the right of private defence must never be vindictive or malicious.
16. Their Lordships of the Supreme Court further observed as follows:
In judging the conduct of a person who proves that he had a right of private defence, allowance has necessarily to be made for his feelings at the relevant time. He is faced with an assault which causes a reasonable apprehension of death or grievous hurt and that inevitably creates in his mind some excitement and confusion. At such a moment, the uppermost feeling in his mind would be to ward off the danger and to save himself or his property, and so, he would naturally be anxious to strike a decisive blow in exercise of his right. It is no doubt true that in striking a decisive blow, he must not use more force than appears to be reasonably necessary. But in 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. The means which a threatened person adopts or the force which he uses should not be weighed in golden scales. To begin with, the person exercising a aright of private defence must consider whether the threat to his person or his property is real and immediate. If he reaches the conclusion reasonably that the threat is immediate and real, he is entitled to exercise his right. In the exercise of his right, he must use force necessary for the purpose and he must stop using the force as soon as the threat has disappeared. So long as the threat lasts and the right of private defence can be legitimately exercised, it would not be fair to require that 'he should modulate his defence step by step, according to the attack, before there is reason to believe the attack is over.' The law of private defence does not require that the person assaulted or facing an apprehension of an assault must run away for safety. As soon as the cause for the reasonable apprehension has disappeared and the threat has either been destroyed or has been put to rout, there can be no occasion to exercise the right of private defence. If the danger is continuing, the right is there; if the danger or the apprehension about it has ceased to exist, there is no longer the right of private defence.
17. In the light of this legal position, if we examine the facts of this case, the only possible view that could be taken is that the accused faced with the danger of their cotton crop being robbed off an complainant's party taking possession of their land forcibly. They also apprehended the danger to their lives at the hands of the complainant's party. In such circumstances, the accused could be said to have had the right of private defence and in causing the death of Irappayya and Siddappa Mayagol it could not be said that they had exceeded their right of private defence.
18. In the result, therefore, I set aside the conviction and sentence passed against the accused and acquit them. The appeal is allowed.