D.N. Roy, J.
1. Sidhnath Rai alias Sidhi Rai, Raghupat Rai, Ram Jatan Rai and Belal were charged under sections 302 and 323, I. P. C. read with Section 34, I. P. C. for the murder of Hail Ji arid for causing simple hurt to Vishwanath Rai in furtherance of the common intention of all on the 21st of October, 1954, at about 8 a.m. in village Bhataura, within police circle Gahmar in district Ghazipur.
They were acquitted of the offence under Section 302. Only Sidhnath Rai was convicted under Section 304 Part I and sentenced to eight years' rigorous imprisonment. All the four were convicted under Section 323, I. P. C. read with Section 34, I. P. C, for causing simple hurt to Vishwanath Rai and Hari Ji and each sentenced to six months' rigorous imprisonment.
Sidhnath has preferred Appeal No. 1363 of 1955; and the other three have preferred Appeal No. 1160 of 1955 as against their conviction and sentences. The State has preferred Appeal No. 1736 of 1955 against the acquittal of these four persons under Section 302/34, I. P. C. All these appeals have been heard together and we propose disposing of them by a common judgment.
2. Raghupat Rai appellant is the son of Sidhnath Rai alias Sidhi Rai appellant. Ram Jataiv Rai is a nephew of Sidhnath Rai; and so was Hari Ji the deceased. Belal appellant has been their servant.
3. That an incident took place on the morning of the 21st of October, 1954, in mauza Bhataura in which these four persons had participated' and in which Vishwanath Rai and Hari Ji had been assaulted, as a result of which the former received simple injury and Hari Ji received simple and grievous injuries as a result of which Hari Ji died, is not now disputed. The two broad questions which we have got to consider are : (1) Were Sidh Nath Rai, Raghupat Rai, Ram Jatan Rai and Belal protected under the plea of the right of self-defence and did they not exceed that right?
2. If not, whether all or any of them committed an offence punishable under Section 302, I. P. C. read with Section 34, I. P. C. or whether Sidhnath Rai alone committed an offence punishable under Section 304 Part I, I. P. G.
4. We have from the side of the prosecution the evidence of Vishwanath Rai P.W. 1, Ram Daras Rai P.W. 2, Hari Shankar P.W. 3, Brij Raj Rai P.W. 6, Sheo Shankar P.W. 8, Dukhant P.W- 9 and Vindhyachal Chowkidar P.W. 10, who claimed to be eye-witnesses of the occurrence. And we have from the other side the evidence of Ban-wari D.W. 5 who claims himself to be another eye-witness to the occurrence.
From the evidence of these witnesses it was proved beyond doubt that the relations between Vishwanath Rai P.W. 1 and his son Hari Ji deceased on the one hand and Sidhnath Rai, Ram Jatan and Raghupat accused on the other had been very strained for quite a long time arising out of property dispute. These two groups had separate residence, separate cultivation and separate proper-ties of their own. Vishwanath Rai had certain bullocks at has Chhowni in village Bhataura.
It was said that they included two of the 'bullocks of Sidhrmth Rai which he had taken away several days before the present occurrence by use of force. Three days before the present occurrence Sidhnath Rai took away those two bullocks to his own place without let or hindrance by Vishwanath Rai. The reason why no resistance was offered by Vishwanath Rai at that time was that Vishwanath Rai was all alone at that time.
On the day of the occurrence these two bullocks were over the field of Sidhnath Rai and they were actually engaged in tilling the soil under ploughs worked by Ram Jatan and Raghupat accused. Vishwanath and Hari Ji started from their Chhowni armed with lathis, determined to unyoke the bullocks from the plough of Sidhnath and determined also to take them away after offering fight.
Vishwanath and Hari ji challenged Sidhnnth and Belal to come and prevent them from taking away the bullocks if they had the courage to do so. When this challenge was given, Sidhnath and Belal ran from (heir house, the former armed with a spear and the latter with a lathi. Ram Ratan and Raghupat ran from their field armed with lathis to prevent the party of Vishwanath from trespassing over their land and from unyoking the bullocks and forcibly carrying them away.
The two parties met at a short distance from the field where a fight took place. According to the defence the attack was initially launched by Vishwanath and Hari Ji who hit Raghupat with lathis. According to the prosecution, the attack was initiated by the accused persons. The Sessions Judge, however, found that there was nothing on the record to show as to which party gave the first How.
In coming to that finding the Sessions Judge obviously overlooked the statement of Raghupat accused made before the Committing Magistrate who had clearly asserted that the attack was 1 unched by Vishwanath and Hari Ji. The statement of Raghupat on that point was consistent with probabilities and it found support from the evidence of Banwari D.W. 5.
5. The story set out in evidence on behalf of the prosecution had been that the moment the accused persons reached there, they attacked Vishwanath and Hari Ji and that Vishwanath and Hari Ji then warded off the attack in self-defence. This story was not stated in the first information report made by Vindhyachal Chowkidar P.W. 10 who, as we have already said, claimed to be an eye-witness of the occurrence. Vindhyachal contended in evidence that it was mentioned by him in the first information report. The first information report was, however, conspicuous by its absence. Vindhyachal could not give any explanation for the absence of it from the first information report. The facts and circumstances of the case and the evidence on the record therefore favoured the view that Vishvanath and Hari Ji were the aggressors and the attack was initially opened by them with lathis.
6. Raghupat accused received lathi hits over his head and other parts of the body as proved by medical evidence. Hari Ji received four injuries and died as a result of shock and haemorrhage due to the punctured wound on the neck caused by the spear of Sidhnath appellant. Vishwanath Rai received two simple injuries caused by lathi. An effort was made on behalf of the prosecution to prove that the accused persons were unhurt. But that effort proved unsuccessful. The medical evidence in respect of Raghupat has just been stated by us.
Ram Daras Rai P.W. 2 and Brij Raj Rai P.W. 6 both stated before the investigating officer, vide Exs. D-2 and D-6 respectively, that the accused persons also received injuries. Brij Raj Rai in his statement before the investigating officer had lent support to the defence case, namely, that in 1954 Vishwanath Rai had taken away the bullocks of Sidhnath Rai accused and the latter in turn took them away from the former. Both these witness, however, denied, having made the statements before the investigating officer. The investigating officer proved the two statements. We do not see any reason why the investigating officer should be credited with falsehood on this point.
7. We are of the opinion that the prosecution witnesses have not told the truth regarding the origin of the trouble and the party which played as the aggressor. We are further of the opinion that two of the accused persons falsely denied their presence at the occurrence. We are convinced that all of them took part in the fight. We are further convinced that the bullocks which had been taken away three days before the occurrence by Sidhnath Rai accused from Vishwanath Rai belonged to Sidhnath Rai. They had been wrongfully taken away and retained by Vishwanath Rai on a previous occasion. Vishwanath Rai did not resist the retaking.
On the day of the occurrence these two bullocks were on the field of Sidhnath Hai engaged in agricultural operations. Vishwanath Rai P.W. 1. and Hari Har Prasad alias Hari Ji deceased started from their chhaoni armed with lathi determined to unyoke the bullocks from the plough and to take them away after offering fight. They challenged Sidhnath Rai and Belal accused to come and prevent them from doing so if they had the guts.
Sidhnath and Belal ran from their house armed with spear and lathi respectively. Raghupat Rai accused the son of Sidhnath Rai and Ram Jatan Rai accused who were at the place ran from the field armed with lathis in order to prevent the aggression and to prevent the party of Vishwanath Rai from trespassing over the land and taking away the bullocks. The two parties met at a short distance from the field where the fight took place.
8. The attack was initially launched by Vishwanath Rai and Hari Ji. At first Raghupat accused was hit with their lathis. He was also hit over the head, an assault as may reasonably have caused the apprehension that grievous hurt will otherwise be the consequence of such assault. Lathis spear were then used from both sides resulting in injuries to both. The spear injury by Sidhnath Rai to Hari Ji ultimately proved fatal.
In circumstances such as these the accused's party had the right of self-defence both of person and property; and in our opinion that right had not been exceeded. When the complainant's party proceeded to the field of Sidhnath Kai accused to retake the bullocks there was no existing danger to that property qua the complainant's party; and even if the complainant had a title to the property, his remedy was to seek possession from a Court of law and not to enforce it by force himself.
If the complainant was previously in peaceful possession but the other side had dispossessed him and the complainant had acquiesced in the dispossession for some time, then again the complainant must have recourse to law and not to enforce his right to take back possession by his own force. If the accused had already been in possession of his property, ho was entitled to defend such property from the expected aggression from the other side.
The apprehension of danger having actually commenced and there having been no time to have recourse to public authorities before actual injury was caused to the property, the accused were entitled to defend the property. The accused persons entered into the fight not with the pretext or trying their strength. They were drawn into the fight because of the aggression from the complainant. The accused's determination to fight was bona fide in (he desire to protect their own property; and that would be a case where the right of self-defence cannot be said to have been excluded.
In this connection it would be important to note whether one is fighting for maintaining one's possession or maintaining one's enjoyment of a right which has been enjoyed for some time previously, or one tries to obtain possession of property which he thinks belongs to him or to enforce a right which he thinks belongs to him or to enforce a right which may be his but which he had not enjoyed before. In the latter class of cases there is no right of self-defence. In the former class of cases there is.
9. When a person takes away the property of another by trespassing over his land, find such an act amounts to an offence of theft and criminal trespass, the person in whom the right of possession is vested may, while the trespass and the act of theft are in progress, turn the trespasser out of the land by force and may also resist the act of the taking away of his property; and if in so doing he inflicts such injuries on the trespasser or on the thief as are warranted by the situation, he commits no offence and his action will be covered by the principle of self-defence embodied in Sections 95 to 105 of the Indian Penal Code.
If, on the other hand, the trespasser or the thief had already accomplished his act and the person with the right has acquiesced in the accomplishment, it is not open to the latter to avail himself of the doctrine of self-defence by inflicting injuries on the trespasser or the thief to acquire possession of his property. In such a case if the person with the right be an aggressor, there is no doubt that the other has a right of self-defence. Recapture of the stolen or plundered property while it is in the course of being carried away is authorised in view of Section 105, for the taking and retaking is one transaction.
But when the offence has been committed and the property removed, a recapture after an interval of time by the owner or by other persons on his behalf however justifiable cannot be deemed an exercise of the right of defence of property. The recovery which Section 105 of the Indian Penal Code contemplates seems to be a recovery either immediate or made before the offender has reached his final retreat, as where stolen cattle are tracked until ultimately overtaken in their retreat and recaptured.
In this connection we are in full agreement with the view expresssd by a Division Bench of the Lahore High Court in Mir Dad v. Emperor, AIR 1926 Lah 74, which has been followed by the Nagpur High Court in Punjabrao v. Emperor AIR 1945 Nag 269 and where a decision of the Additional Judicial Commissioner of the Central Provinces in Jarha Chamar v. Surit Ram, 7 Cri LJ 49 (Nag) had been doubted.
10. In the present case the action of the complainant's party cannot upon any view be defended. Where A and B have a dispute respecting cattle in the possession of B, and A in the exercise of some right or supposed right threatens to take away the cattle by force and he sets out assisted by another to execute forcibly this purpose, and B knowing of this assisted by his own men goes in defence of his property, if any violence ensures under these circumstances from A or his party, the other is entitled to resist and to defend his person and property; but the right in no case shall extend to the inflicting of more harm than is necessary.
Under Section 103 of the Indian Penal Code the right of private defence of property extends under the restrictions mentioned in Section 99 to the voluntary causing of death or of any other harm to the wrong-doer if the offence, the committing of which or the attempting to commit which, occasions the exercise of the right, be an offence of robbery or of theft under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence if such right o private defence is not exercised.
11. We have given our reasons for coming to the view that the complainant's party played as the aggressors and that the accused had the right of self-defence and that they did not exceed that rigM, We have also stated that the Sessions Judge's estimate of the evidence was wrong when he held that there was nothing to show as to which party gave the first blow.
Even if for the sake of argument it be said that the Sessions Judge's view on this point should be endorsed, the case in our opinion would come within the ambit of the dictum laid down in the Full Bench decision of this Court in Parbhoo v. Emperor : AIR1941All402 where it was held that in a case in which any general exception in the Penal Code is pleaded by the accused person and evidence is adduced to support such a plea, but such evidence fails to satisfy the Court affirmatively of the existence of circumstances bringing the case within the general exception pleaded, the accused person is entitled to be acquitted if upon a consideration of the evidence as a whole a reasonable doubt is created in the mind of the Court whether the accused person is or is not entitled to the benefit of the said exception.
12. Having regard to the circumstances of the case and the evidence on the record consisting of the medical evidence and the evidence of the prosecution witnesses stated above and further to the evidence of Banwari D.W. 5 and to the statement of the accused, our answer to both the questions stated above are in favour of the accused. In our opinion the accused were protected under the general exception of the right of self-defence and they did not exceed that right.
Consequently none of them can be held guilty under Section 302 or Section 304 or Section 323 with the aid of Section 34, I.P.C. Consequently we dismiss the State appeal No. 1736 of 1955 and we allow the other two apneals Nos. 1160 of 1955 and 1363 of 1955. We set 'aside the conviction and sentence of Sidhnath Rai under Section 304 Part I and Section 323, I.P.C. and also the convictionand sentences of Raghunat Rai, Ram Jatan Rai andBelal under Section 323, I.P.C. They are on bail. Theyneed not surrender and their bail bonds are discharged.