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In Re: Gangavaram Sankaraiah - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1970CriLJ1029
AppellantIn Re: Gangavaram Sankaraiah
Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter......chinnappa reddy, j.1. the two appeals arise out of the same case and may be disposed of by a common judgment. ten persons were tried by the learned sessions judge of nellore for alleged offences under sections 147, 148, 302 read with 34, 302 read with 149 etc., penal code. a-1 to a-8 and a-10 were acquitted of all charges while the ninth accused was convicted of an offence under section 304, penal code but acquitted of other charges. the 9th accused who was sentenced to 7 years rigorous imprisonment for the offence under section 301 is the appellant in criminal appeal no. 455 of 1967 while all ten accused are respondents in criminal appeal no. 676 of 1967, which is an appeal filed by the state against the several acquittals recorded by the learned sessions judge on various charges.2. the.....
Judgment:

Chinnappa Reddy, J.

1. The two appeals arise out of the same case and may be disposed of by a common judgment. Ten persons were tried by the learned Sessions Judge of Nellore for alleged offences under Sections 147, 148, 302 read with 34, 302 read with 149 etc., Penal Code. A-1 to A-8 and A-10 were acquitted of all charges while the ninth accused was convicted of an offence under Section 304, Penal Code but acquitted of other charges. The 9th accused who was sentenced to 7 years rigorous imprisonment for the offence under Section 301 is the appellant in Criminal Appeal No. 455 of 1967 while all ten accused are respondents in Criminal Appeal No. 676 of 1967, which is an appeal filed by the State against the several acquittals recorded by the learned Sessions Judge on various charges.

2. The facts of the case are briefly as follows:

P. W. 6, Sakamuri Chinnamma is the widow of Venkatasubbaiah, brother of the 1st accused. Soon after her husband's death about ten years prior to the occurrence Chinnamma went to live with her parents in Cuddapah District leasing out her properties in her husband's village to the 1st accused. As she was experiencing considerable difficulty in realising from the 1st accused the maktha due to her she returned to her husband's village about one and a half years prior to the occurrence. She lived for a short time in the house of the 1st accused, but later lived separately by herself. There were disputes between P. W. 6 and A-1 regarding possession of the lands belonging to P. W. 6. In particular there was a dispute in respect of 1 1/2 acres of garden land. P. W. 6 complained to A-6 and A-7, elders of the village, that A-1 was giving her trouble with regard to possession of 1 1/2 acres of garden land, She was asked by them to pay a sum of Rs. 39 to A-1 as compensation for the cultivation operations done by him and take possession of the land. Thereafter P. W. 6 leased the garden land to the deceased, Chandra Chinna Venkatasubbiah, who sowed horsegram in the land. Nonetheless A-1 and A-2 ploughed away the land ignoring the lease in favour of deceased. The deceased, thereupon, gave up the lease presumably because he did not want any trouble from A-1 and A-2. P. W. 6 herself cultivated the land and about a week prior to the occurrence she and the wife of A-1 exchanged words when she found A-1's wife in the garden land removing grass. A-1's wife went home and returned with A-1 and A-2 and they beat P. W. 6. P. W. 6 preferred a complaint to the First Class Magistrate at Atmakur against A-1 and A-2 and the wife of A-1, and on 30-11-66 the learned Magistrate recorded her sworn statement in connection with her complaint.

3. P. W, 6 is admittedly entitled to a half share in a pasture land known as Sakamurivari Beedu in which the 1st accused owns the other half share. According to P. W. 6 and other prosecution witnesses the Beedu was partitioned even during the lifetime of the husband of P. W. 6 and the southern half share of the extent of 4 1/2 acres fell to the share of P. W. 6's husband. It is the case of the prosecution that there is a row of babul and other trees demarcating the shares of P. W. 6 and A-1, while the case of the accused is that the beedu was never partitioned by metes and bounds. While it is the case of the prosecution that on 19-11-66 P. W. 6 leased the pasturage rights in her share of the Beedu to the deceased Chandra Chinna Venkatasubbiah for a sum of Rs. 40, it is the case of the 1st accused that he has been the lessee of P. W. 6's undivided half share in the pasture land for several years paying an annual rent of Rs. 20. On the morning of 1-12-1966 at about 10 A.M. the deceased and his younger brother Chandriah, P. W. 2, took their five bulls to the Sakamuri vari Beedu for grazing. At about 12 noon the ten accused came to the Beedu, A-2 being armed with an axe, A-1 and A-6 to A-10 with spears and A3 to A-5 with sticks. It may be mentioned here that A-2 is the undivided son of A-1, while the rest of the accused are also closely related to him. As soon as they arrived in the field they began to drive away the bulls from the field and the deceased protested claiming that he had purchased the pasture and that he was therefore entitled to graze his bulls in the field. Thereupon it is alleged that A-6 exhorted the others to stab him. A-9 speared the deceased in the chest, while A-8 and A-1 respectively speared him on the right thigh and hand, A-6 and A-7 also beat the deceased with sticks. P. W. 2 who was at a short distance rushed towards the accused waving a stick which he had with him and hurling stones against them. He was also attacked, various overt acts being attributed to A-1, A.4, A-7 and A-10. P. W. 1, another brother of the deceased who had seen the accused going towards the field armed with deadly weapons and who followed them apprehending injury to his brother also witnessed the attack and rushed forward to save his brothers waving a stick which he had in his hands when he was also attacked by accused 2, 3, 4 and 5. P. Ws, 1 and 2 claim that as a result of their attacking the accused with sticks to rescue their brother, accused 1 to 5 received some injuries, Kaluva Penchalaiah P. W. 3, a Madiga who was grazing his sheep near the Beedu, Mallineni Kondaiah, P. W. 4, a brother-in-law of the deceased who happened to pass along the Beedu and Kante Subbaramaiah, P. W. 5 who also happen, ed to be passing along the Beedu in search of a lost buffalo also claim to have witnessed the occurrence. It is stated that after P. Ws. 2 and 1 fell down the accused ran away from the scene, A-9 throwing his spear at the scene itself. After the accused left, P. W. 1 went near his brother Venkatasubbiah and found him dead. Chandriah, P. W. 2 was conscious then, but soon thereafter he also lost consciousness. The village Munsif of Gowravaram, P. W. 10 heard from his Thalayari that accused 1 to 5 on one hand and the deceased, P. Ws. 1, 2 and 5 on the other had beaten each other at Sakamurivari Beedu and that one person had died and others had received injuries. He went to the Beedu and found Chinna Venkatasubbaiah dead and P. W. 2 lying unconscious. He asked P. W. 1 who was also injured and who was weeping near his brothers to give a report, but P. W. 1 refused to do so saying that they would not give a report, then, but would give it later after consideration. In an adjoining field the Village Munsif found accused 1 to 5 lying injured and of them A-2 was unconscious. He asked A-1 to give a report, but he also refused to give a report saying that he would do so later and not then. The Village Munsif prepared his report Ex. P8 and despatched it to the police station at Dharmarao Cherruyupalli where it was received next morning at 6 A. M. Meanwhile P. W. 1 arranged to take his brother Chandriah who was unconscious to the hospital at Atmakur eighteen miles from Gowravaram. They reached the hospital at about 10 P. M. The Medical Officer, P. W. 13 treated both of them and sent intimation of accidents to the Sub-Inspector of Police of Atmakur Police Station. On receiving the intimation of accidents P. W. 16 the Sub-Inspector of Atmakur proceeded to the hospital and recorded Exs. P3 and P4 from P. Ws. 1 ' and 2 respectively. He forwarded Exs. P3 and P4 to the Sub-Inspector of Dharmarao Cheruvapalli as Gowravaram is within the jurisdiction of that police station. The Sub-Inspector of Dharmarao Cheruvupalli received Exs. P3 and P4 while he was on his way to Gowravaram having in the meanwhile received Ex. P8 from the Village Munsif. P. W. 19 proceeded to the village, held the inquest at which he examined P. Ws. 3, 4, 5, 6, 9 and 10 and sent the corpse to the Medical Officer at Atmakur for postmortem. He found accused 1 to 5 in their houses with injuries and arranged to send them to the hospital for treatment of their injuries. After completing the investigation a chargesheet was filed against the ten accused. Accused 6 to 10 surrendered before Court on 9-1-1967.

4. It may be mentioned at this juncture that apart from the disputes relating to possession of the lands of P. W. 6, the prosecution has also led evidence to show that there were disputes between the Kammas of the village led by A 6 and A-7 and the Harijans of the village regarding certain foreshore lands and that in that dispute the Balijas of the village led by P. W. 9 and few Kammas like the deceased and his brothers were supporting the Harijans. It is said that on this account also the accused bore a grudge against the deceased and his brothers.

5. A-6 to A-10 denied the offences altogether and A-6 and A-7 who put forward pleas of alibi examined DWs. 1 and 2 in support of their pleas. A-1 to A 5 pleaded, when questioned under Section 342, Criminal P. C. that on the day of incident they were grazing their bulls in the Sakamurivari Beedu and that the deceased and P. Ws. 1 and 2 came there driving their bulls and attacked them. At that time P. W. 1 was armed with a spear and the rest with sticks. When they were thus attacked by deceased and P. Ws. 1 and 2 they also beat but they did not know who were injured.

6. The learned Sessions Judge found that the Sakamurivari Beedu was never partitioned by metes and bounds and that the alleged lease of her half share of the beedu by P. W. 6 in favour of the deceased was not true. The learned Sessions Judge also found that the 1st accused was in possession of the beedu right up to the date of incident. These findings have not been assailed before us by the learned Public Prosecutor, Dealing with the actual occurrence the learned Sessions Judge unhesitatingly rejected tie evidence of P. W. 4. He however accepted as truthful the evidence of P. Ws. 1 and 2 the two injured brothers of the deceased and the evidence of P. Ws. 3 and 5 who according to the learned Sessions Judge are independent witnesses. We do not share the learned Judge's view that P. Ws. 4 and 5 are independent witnesses but we are, nonetheless, satisfied that they have given a substantially true account of the broad features of the incident. The learned Sessions Judge's finding regarding the occurrence and the reasons for his finding are stated by him in para 25 of his judgment which is as follows:

The deceased received seven incised injuries which could have been caused only by a sharp instrument like a spear. P. W. 1 received two contusions and two lacerated wounds. P. W. 2 received two incised wounds and only one contusion. So far as the accused are concerned, the 1st accused received one lacerated wound and four contusions, The 2nd accused received one lacerated wound and three contusions, The 3rd accused received two lacerated wounds and three contusions. The 4th accused received only one contusion. The 5th accused received one lacerated wound and an abrasion. The relative postmortem certificate and the wound certificates are Exhibits P-16, P. 14, P. 15 and P-17 to P. 21. From the nature of the injuries received by the deceased and P. W.-2 it is clear that they were inflicted by the accused who must have gone there with the sole purpose of attacking them. The carrying of sharp instruments, would disclose a sense of preparedness on their part, So far as the injuries received by accused 1 to 5 are concerned, they could have been caused by sticks or by hurling of stones. Both P. Ws. 1 and 2 have stated that when the accused have attacked the deceased, they tried to interfere and began to hurl stones against the accused to scare them away and they have also hurled sticks. While P. Ws. 1, 2, 3 and 5 have explained the injuries which have been inflicted OH accused 1 to 5, the accused have not explained the incised wound which they have inflicted on the deceased and P. W. 2. If really accused 1 to 5 were grazing the cattle and they were attacked later by P. Ws. 1, 2 and the deceased, the incised wounds would not have been there for the deceased and P. W. 2. The very fact that sharp instruments are used by the accused would disclose that at the time they went to Sakamurivari Beedu, they fully knew that P. Ws. 1, 2 and the deceased were already grazing the cattle in the Sakamurivari Beedu. Further P. Ws. 1, 2 and the deceased would not have gone later especially if they know about the presence of A-l to A-5 in the pasture, The number of the accused party is larger and the probability is they went there later. I, therefore, have no hesitation in holding that on 1-12-1966 P, W. 2 and the deceased were grazing the cattle in the pasture land and they were attacked by the accused resulting in the death of the deceased and when P. W. 2 and later P. W. 1 intervened, they were over-powered by the accused and whatever injuries accused 1 to 5 have received, have been received by them at the hands of P. Ws. 1 and 2.

Sri Ramachandra Reddy, learned Counsel for the accused does not challenge the correctness of this finding but he would amend the finding by stating that P. W. 1 was also with the deceased and P. W. 2 from the beginniag. On a perusal of the evidence we are satisfied that P. W. 1 was not there from the beginning but came to the scene apprehending injury to his brothers when he saw the accused party going out fully armed.

7. The learned Sessions Judge has found that A-9 was responsible for the injury on the chest which according to the doctor who conducted the autopsy is the fatal injury. All the witnesses are unanimous that A-9 was responsible for the injury and it has not been suggested to the witnesses that they had any special reason for attributing the fatal injury to A-9. The attack on the deceased started with the spear-thrust by A-9 and it is not possible for the witnesses to have made any mistake about the identity of A-9 and the injury caused by him. We therefore accept the finding of the learned Sessions Judge that A-9 was responsible for the injury on the chest of the deceased. We are not however prepared to accept the evidence of the witnesses when they give details of the rest of the attack on the deceased and on P. Ws. 1 and 2, and meticulously ascribe every injury to a particular accused. It is possible that the witnesses did notice some of the injuries being inflicted by the particular accused mentioned by them but it is difficult to accept their evidence when they attempt to account for every injury. When the accused party entered the field and proceeded to attack the deceased, A-9 delivering the first blow, P. Ws. 1 and 2 must have rushed to the rescue of their brother and there must have been quite a melee. It must be remembered that A-1 to A-5 between them received as many as 16 injuries. We do not think that it is safe to accept the evidence of the witnesses regarding the individual acts attributed to the various accused. In that view we do not also think that it is safe to accept without anything more the evidence of the witnesses regarding the presence and participation of the several accused. We have already found that A-9 was responsible for the injury on the chest of deceased. A-1 to A-5 admit their presence in the beedu at the time of occurrence and in fact they were found lying injured in the neighbouring field by P. W. 10, the Village Munsif, soon after the occurrence, We feel that the evidence of the prosecution witnesses regarding the presence and participation of A-1 to A-5 and A-9 may safely be accepted but not so with regard to A-6, A-7, A.8 and A-10. We have also no doubt that the exhortation attributed to A-6 is not true and that he is given that part because he is a prominent member of the group to which the accused be-long.

8. Our conclusions on the incidents of L12-1966 are as follows:

The deceased and P. W. 2 took their bulls to the pasture land, Sakamurivari Beedu, for grazing for the first time that day. Till that day the beedu was in the possession of A-1. Learning that the deceased and P. W. 2 were grazing their bulls in the beedu A-1 to A5, A-9 and possibly some others armed themselves with spears, sticks and other weapons and proceeded to the field with the object of attacking and injuring the deceased and P. W. 2 and removing them and their bulls from the beedu by the use of force. As soon as .they reached the field they drove away the bulls and when the deceased protested saying that he had a right to graze the bulls in the field they attacked him, A-9 delivering the first thrust with his spear. When P. Ws. 1 and 2 rushed to 'protect the deceased brandishing sticks and using them they attacked them also and there was a melee.

9. On these conclusions, the question is whether A-1 to A-5 and A-9 have committed any offences. On substantially the same conclusions the learned Sessions Judge held that all the accused except A-9 were protected by the right of private defence of property but A-9 alone had exceeded the right of private defence and was guilty under Section 304. In our view in considering the question whether any of these accused have committed any offences the following facts have also to be borne in mind:

10. The Sakamurivari Beedu is a mere pasture land on which no crops are grown. The value of the pasture may be judged from the fact that the pasturage rights for a whole year are worth according to the accused Rs. 20 and according to P. W. 6 Rs. 40. Even it the deceased and P. W. 2 had been allowed to graze their bulls the whole of 1-2 1966. injury caused to the property would have been trivial. The trespass itself would have come to an end in the evening in the usual course. The accused could well have gone to the Village Munsiff, P. W. 10, who is related to both parties. If for any reason that was not thought desirable the accused could have gone to the Police Station at Dharmarao Cheruvapalli or to the Inspector of Police at Atmakur and sought the protection of these public authorities. It is in evidence that both places are conveniently approachable by bus. Instead of doing that, the accused preferred to march into the Beedu in numbers far superior to the pitiful two or even three members of the prosecution party and in arms far outmatching the goad-sticks (sticks used to drive bulls) which the members of the prosecution party had with them.

11. Sri Ramchandra Reddy, learned Counsel for the accused argues that the accused are fully protected by Section 96 of the Penal Code as they were acting in exercise of the right of private defence of property. Relying on a sentence in a judgment of the Supreme Court that 'there is nothing more degrading to the human spirit than to run away in the face of peril' he poses to us the question whether the accused were expected to be mean spirited and flee like cowards when the prosecution party started grazing their bulls in the fields in the possession of the accused, I, for my part, am able to see neither courage nor spirit in an armed group of persons going out to attack a smaller and ill armed group for the alleged purpose of defending property, the invasion of their property extending to no more than taking a few head of cattle for pasture. In our opinion, however, considerations of courage and cowardice or spirit and the lack of it are entirely misplaced in considering the question whether a person can be said to have acted in exercise of the right of private defence of property, Indeed, who can say that a person who, when beaten on one cheek turns the other is less courageous than the person who unsheaths his sword immediately? Who can say that a person who with great self-restraint refuses to resort to violence in the most critical of situations is mean-spirited? It certainly requires moral courage and self-discipline to resist the temptation of circumstances and emotion, and refuse to resort to violence. Did not Jesus Christ say 2000 years ago 'Blessed are the meek, for they shall inherit the earth.' Did not Gandhiji repeat this ever and ever? Let us not therefore confuse ready resort to violence with any uplifting of the human spirit even as it cannot necessarily be identified with an animal spirit. There are other ways of looking at the problem than merely in terms of physical courage and 'manly spirit.' Self-restraint, discipline and moral courage are as important, if not more important. We have digressed, but only to answer the rhetorical question posed to us by the learned Counsel.

12. The most ancient functions of the State and its laws have been the preservation of the public peace and public order and the substitution of private justice by public justice. In other words, the responsibility for the preservation of the public peace and order, including the protection of its citizens and their properties and the prevention of cirme is that of the State. Conversely no one is entitled to take the law into his own hands, This is of the very essence of the scheme of things in a well ordered civilised society. But public justice may not always be prompt. Its intervention may come too late and meanwhile great and irreparable injury may be done. A crime may be committed which could well have been prevented by prompt private intervention. It is to meet such situations that an exception has been engrafted in Section 96 and the subsequent provisions of the Penal Code to the general rule that no one shall take the law into his own hands. The right of private defence given under Sections 96 and 97 is, however, circumscribed by the several conditions mentioned in the subsequent sections. One of the conditions mentioned in Section 99 is:

There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.

This is no less than an affirmation of the general rule that no one shall take the law into his own hands. It is with this condition that we are primarily concerned in this case. Another condition mentioned in Section 99 is:

The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

Sections 97 and 105 in so far as they are relevant are as follows:

97. Every person has a right, subject to the restrictions contained in Section 99, to defend-

First. * *

Secondly-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.'

'105. Commencement and continuance of the right of private defence of property-

The right of private defence of property commences when a reasonable apprehension of danger to the property commences.

* * * *The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of criminal trespass or mischief.

13. Sri Ramchandra Reddy, learned Counsel urges that the prosecution party having committed criminal trespass, were continuing to do so and therefore the accused had every right to use reasonable force to remove them from the land. He urges that where criminal trespass has already been committed and is continuing, the question of seeking the protection of the public authorities does not arise. The acceptance of such an argument would be subsersive of the whole scheme of Sections 97, 99 and 105 of the Penal Code. The rule which insists that the protection of the public authorities, should first be sought if possible, is a rule conceived in the public interest and with the object of eliminating private justice and unnecessary violence. The rule is applicable whether the criminal trespass has already been committed and is continuing or is only anticipated. The right given under Section 97 is expressly made subject to the provisions of Section 99. The provision in Section 99 which states that there shall be no right of private defence in cases in which there is time to have recourse to the protection of the public authorities really means that there is no right of private defence unless the circumstances are such and the situation is so urgent that there is no time to have recourse to the protection of the public authorities. The urgency of the situation must naturally depend upon several factors. It must depend on the nature of the property which is invaded ; it must depend on the use to which the property is being put at the time of invasion ; it must depend on the manner of the invasion ; it must also depend on the injury to be averted. If the privacy of the home of an individual is invaded, he may probably be justified in straightway using reasonable force to remove the invader, of course, after first warning him to remove himself. If a body of persons invade a field in somebody else's possession for the purpose of cutting away or destroying the crop on the field, the person in possession may be justified in using reasonable force to remove the invaders. On the other hand if some trespassers occupy a vacant field and no immediate harm is going to be caused to the land, the owner of the land will not be justified in straightway taking the law into his hands without seeking recourse to the protection of the public authorities. The test is what would the ordinary, reasonable and prudent man who is responsible and accountable for his actions do in the circumstances. Would he think that the threat to his property is so immediate as to warrant his not seeking the help of the authorities but to help himself? Their Lordships of the Supreme Court of India have stressed this aspect of the matter in Jai Dev v. State of Punjab : [1963]3SCR489 where Gajendragadkar J. (as he then was) has observed as follows:

To begin with, the person exercising a right of private defence must therefore 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.

14. In Prem v. Rex ILR (1950) All 167 the facts were that one party was found sowing a field in the possession of another party who had already sown that field. The question arose whether the other party could assault the first party in the exercise of the right of private defence of property. Raghubar Dayal and Agarwala JJ. observed:

The mere fact that Ram Baran and party entered the field, which was in the possession of Sarju, and sowed it would not suffice to give a right of private defence of property to Sarju. Firstly, it is debatable whether such conduct of Ram Baran and his party would amount to criminal trespass on an inference that their intention must have been to annoy Sarju. Even if such an intention be imputed to them and their act could amount to the commission of criminal trespass, the right of private defence of property against criminal trespass which would arise in favour of Sarju will be taken away on account of the provisions of Section 99 of the Indian' Penal Code. It says that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Ram Baran and party were not doing any acutal damage to the crop raised by Sarju on the field. In fact, what they were doing could have been beneficial to the crop. Sarju stood nothing to lose if he would have taken legal steps to restrain Ram Baran and others from interfering with his possession of that field. The criminal trespass of the kind would have, in the nature of things, come to an end at the close of the day. When no actual damage was being done to any property of Sarju he really had nothing to Erotect. The conduct of Ram Baran could have affected Sarju adversely by affording an instance of Ram Baran's assertion of his right and of exercising that right in any future litigation between Sarju and Ram Baran. This may not be to the benefit of Sarju, but is not such harm or damage which had to be protected by Sarju at the time. Further it appears from the evidence that the accused appellants did not ask Ram Baran to go away from the field, the first usual step to be taken against a trespasser. They questioned Ram Baran about the reason for his going to the field and on his intimating his reason they, at the suggestion of Hattu, fell upon him with lathis. Their conduct was not, therefore, to protect their possession against the criminal trespass of Ram Baran, but appears to be in order to teach Ram Baran a lesson on account of his audacity to act against the thekadar's interests. We are, therefore, of opinion that there was no right of private defence of property against criminal trespass in the accused appellants and that they cannot be said to have been acting in the exercise of that right when they beat Ham Baran.

In Narayan Raut v. Emperor AIR 1948 Pat 294 the facts were that Narayan was in possession of certain land which was not under any crop. Bujhawan and his party went to the land for the purpose of ploughing the land and thus dispossessing Narayan. Narayan attacked and killed Bujhawan. Agarwala C. J., and Rama-swami J. observed:

The land was not under crop at the time of the occurrence. All that the prosecution party were doing was to plough the land, They were not doing any immediate harm. There was, therefore, ample time for Narayan to have recourse to the public authorities for the protection of his rights. In this case, as so often happens in cases of this nature, the fact that the right of private defence does not arise when there is time to have recourse to the public authorities, has been overlooked. Even in this Court the learned Advocate referred us to Section 97, Penal Code, and argued that as the act of the prosecution party amounted to criminal trespass, the defence were protected by that section. The section, however, expressly states' that it is subject to Section 99 which explicitly provides that there is no right to private defence when there is time to have recourse to the public authorities.

These two cases are clear authorities for the position that the mere fact that the opposite party has trespassed into the field of a person does not straightway clothe that person with the right to act in alleged exercise of right of private defence, when there is time to have recourse to the protection of the public authorities, and no immediate injury is going to be suffered in consequence in the meanwhile, We are in respectful agreement with the observations of the learned Judges above extracted by us. These observations have also been accepted by another Division Bench of this High Court as laying down the correct principles. (Vide Manohar Pershad and Narasimham JJ., in Criminal Appeal No. 341 of 1962 (Andh. Pra.)).

15. Sri Ramachandra Reddy relies upon a judgment of the Supreme Court in Murishi Ram v. Delhi Administration AIR 1968 SC 702. The facts of the case are as follows:

16. One Jamuna, a former tenant of certain Muslim landlords who migrated to Pakistan, was in possession of a certain field for over 30 years prior to the date of occurrence. P. W. 17 in the case purchased the property at a public auction held by the Government under the Displaced Persons Act, 1934. Delivery of the property was alleged to have been given to P. W. 17 on 22-6-1962 by the managing officer. Jamuna was not aware either of the purchase by P. W. 17 or of the delivery alleged to have been given on 22-6-1962 and he continued to be in possession right upto the time of incident. It was also found as a matter of law, that the managing officer was incompetent to give delivery of possession of the field, It was further found that corp grown by Jamuna was there in a portion of the field. While so, on 1-7-1962, P.W. 17 and several persons went to the field with a tractor to level the land. All that time P. W. 17's father was even armed with a pistol. At that stage the relations of Jamuna went to the field and asked the complainant's party to clear out of the field. When they refused to do so, they pushed them and thereafter used minimum force to throw them out of the field. On these facts their Lordships of the Supreme Court found as a fact that Jamuna's relations had no time to have recourse to the protection of public authorities. This case cannot be of any assistance to the accused in the present case because there, the crop raised by Jamuna was about to be destroyed and the land itself was about to be levelled up by a tractor. Their Lordships, it is true, observed:

Law does not require a person whose property is forcibly tried to be occupied by trespassers to run away and seek the protection of the authorities. The right of private defence serves a social purpose and that right should be liberally construed. Such a right not only will be a restraining influence on bad characters but it will encourage the right spirit in a free citizen. There is nothing more degrading to the human spirit than to run away in the face of peril.

From these observations it is difficult to conclude that their Lordships intended to lay down the wide proposition for which Mr. Ramachandra Reddy is contending. These observations must naturally be read in the context of the facts of that case. It will be useful to recall here the following observations of Lord Halsbury in Queen v. Leathen (5) 1901 AC 495 at p. 506.

. . . there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it.

17. In the present case the criminal trespass was by two individuals with their five bulls. The trespass was for the purpose of grazing the bulls. As already observed by us the trespass would have, in the ordinary course, come to an end by the evening. The injury to the property which might be caused by allowing the bulls to graze in the meanwhile would have been negligible. In those circumstances we cannot but hold that there was ample time to seek protection of the public authorities. We therefore hold that the accused are not entitled to justify their acts by claiming to have acted in exercise of the right of private defence of property. The banding together of not less than six persons armed with deadly weapons was wholly unnecessary if the object of the accused was merely to defend their property against the trespass by the deceased and P. W. 2. It was an exercise in the might of superior force rather than an exercise of the right of private defence. We have no doubt that accused 1 to 5, 9 and some others formed themselves into an unlawful assembly with the common object of teaching a lesson to the deceased and P. W. 2 and causing injuries to them. However, having regard to the fact that apart from the injury caused by A-9 all the injuries caused to deceased and P Ws. 1 and 2 are not of serious nature, we are of the view that the common object of the unlawful assembly was not to cause death or even grievous hurt, but only to cause hurt. A-1 to A-5 and A-9 are, therefore, guilty of the offence of rioting.

18. In view of our finding that none of the accused is entitled to claim the protection of the right of private defence, the finding of the learned Sessions Judge that the act of A.9 came within the second exception to Section 300 must also be set aside. The question then is what is the offence committed by A-9? It is true that the injury caused by him is sufficient in the ordinary course of nature to cause death. While we are satisfied that A-9 intended to cause an injury likely to cause death, we are not satisfied that he intended to cause the particular injury. On exploration of the external injury caused by A-9, it was found to extend medially and upwards, entering the pericardium. It is very likely that the upward course of the injury and the entry into the pericardium was the result of some sudden movement on the part of the deceased, making the weapon move upwards instead of horizontally or downwards. It is not without hesitation that we are arriving at this conclusion, but we cannot alter the conviction of A-9 to one under Section 302 unless we are able to find with certainty that he intended to cause the particular injury. In the circumstances we confirm the conviction of A-9 under Section 304.

19. In the result accused 1, 2 and 9 are convicted under Section 148, Penal Code and each of them is sentenced to pay a fine of Rs. 600 each, in default to undergo rigorous imprisonment for a period of nine months. Accused 3, 4 and 5 are convicted under Section 147, Penal Code and each of them is sentenced to pay a fine of Rs. 500 in default to undergo rigorous imprisonment for a period of six months. Accused 1, 2, 3, 4 and 5 will also execute bonds in a sum of Rs. 2,000 each with one surety each for a like sum to keep the peace for a period of one year under Section 106, Criminal P. C. They will appear before the learned First Class Magistrate of Atmakur within four weeks from today and execute the bonds. The conviction of A-9 under Section 304 is confirmed as also the sentence awarded to him for that offence. Accused 1 to 5 are also convicted under Section 324 read with Section 149 in respect of the injuries caused to the deceased and to P. Ws. 1 and 2. A-9 is further convicted under Section 324 read with Section 149 in respect of the injuries caused to P. Ws. 1 and 2. No separate sentences are awarded to any of the accused for the offences under Section 324 read with Section 149, Penal Code. Cri. Appeal No. 455 of 1967 is accordingly dismissed and Criminal Appeal No. 676 of 1967 is allowed in the manner indicated.


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