R.N. Misra, J.
1. This appeal has been filed by the State of Orissa under Section 417(1), Criminal P. C. against the judgment of acquittal of the respondents who were charged of offences punishable under Sections 302/34 and 324 of the Indian Penal Code passed by the learned Additional Sessions Judge, Baripada.
2. Rathia and Dukhu (respondent No. 2) were close relations, Dukhu being Rathia's father's brother's son. Rathia's widow, Gurubari (P. W. 10) sold about 3 mans of land for the consideration of Rupees 800/- to Rabi, the respondent No. 1, on 14-10-1960, by a registered sale deed (Ext. B). The prosecution alleged that no consideration had been paid for the sale and on 9-11-1962, P. W. 10 cancelled that deed of sale. Although the Investigating Officer (P. W. 21) is said to have seized this deed of cancellation, it has not been produced. Gurubari claimed to have remained in possession throughout and under a sale deed dated 1-6-1967, the deceased Kunar Majhi claimed to have purchased 15 gunths out of the same land for a consideration of Rs. 300/-. This sale deed has also not been produced.
On 3-6-1967, at about 6.30 a.m. when Kunar and his son, Sahadeb (P. W. 16) came upon the property for cultivation and manuring, resistance was offered by Dukhu and Rabi (respondents). The prosecution alleged that the two respondents assaulted both the deceased and his son (P. W. 16). The injuries sustained by the deceased proved fatal and be succumbed to them at the hospital
F. I. R. (Ext. 14) was lodged at 11.15 a. m. on the same day by P. W. 16. P. W. 21, the Investigating Officer, arrived at the spot at 5.40 a.m. on 4-6-1967. At 8.40 a.m. Dukhu was arrested and by mid-day Rabi was taken into custody. Ultimately the respondents were committed to the Court of Session to stand their trial for the offences of murder and assault.
3. The defence of the respondents was that the land was in then- possession from the time of purchase (Ext. B), and they were cultivating the same. On the date of occurrence the deceased and his son along with some others tried to forcibly trespass and possess the land. The respondent No. 1 who was a teacher of the Kusumi U. P. School in the neighbourhood was not at the spot and was present at the school which was having morning sitting when the occurrence took place. The deceased and his son forcibly entered upon the property and wanted the respondent No. 2 to withdraw from the land. Dukhu offered resistance and was beaten up and when P. W. 16 was trying to give further blows to him, his lathi blow accidentally fell on the head of the deceased. Dukhu alleged that he had become unconscious as a result of being beaten up and later, when he gained senses, he returned to his village. The respondent No. 1 thus raised the plea of alibi and the respondent No. 2 the plea of right of private defence.
4. 21 Witnesses were examined for the prosecution of whom P. Ws. 2, 5, 6. 7, 8, 9 and 10 came to speak about possession of Gurubari and the deceased, and P. Ws. 11, 12, 13, 14, 15 and 16 were said to be the eye-witnesses to the occurrence. On an analysis of the evidence the learned Sessions Judge came to hold:-
(1) The plea of alibi raised by the respondent No. 1 has not been established;
(2) The disputed property was in possession of Dukhu and his son from the time of Ext. B and neither P. W. 10 nor the deceased was in possession of the same at any time thereafter. On the date of occurrence, for the first time, the deceased and P. W. 16 were attempting to have possession of the property;
(3) The respondents had right of private defence of property and they were entitled to keep away the deceased and his people who were interfering with their possession;
(4) The accused persons had not exceeded their right of private defence of properly inasmuch as the prosecution failed to establish that the accused persons caused the death of the deceased Kunar Majhi by assaulting him. Taking into consideration the injuries found on P. W. 16 the accused persons cannot be said to have exceeded their right of private defence;
(5) Dukhu had injuries on his person and the prosecution had failed to explain the existence of such injuries which must have been caused in the scuffle said to have taken place at the time and place of occurrence which formed the basis of the Sessions trial. On these findings he acquitted the respondents.
5. When this appeal came up for hearing before a Division Bench of this Court, on behalf of the appellant it was contended that the learned Sessions Judge went wrong in accepting the plea of right of private defence of property. The land in question was admittedly without any crop at the time of occurrence and the respondents could, have taken recourse to protection of the public authorities. The learned trial Judge had omitted to consider the provision contained in Section 99, I. P. C, which inter alia provides-
There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
The learned Counsel for the appellant contended that the decisions of this Court on the aforesaid point had not been uniform and it was necessary that the matter should be examined by a Full Bench and the position of law clearly laid down. This appeal was, therefore, directed to be placed before a Full Bench.
6. Mr. Jagadeb Ray for the respondents did not rightly ask us to accept the plea of alibi of the respondent No. 1. There was also no dispute raised before us that Dukhu had been injured in course of the scuffle as found by the learned Sessions Judge. The following points arise for consideration on the basis of arguments advanced by the learned Counsel for the parties:-
(1) Who was in possession of the property on the date of occurrence - the respondents or the deceased and/or his vendor?
(2) Are the respondents the assailants of the deceased and P. W. 16?
(3) Are the respondents entitled to right of private defence of property?
(4) Have they exceeded such right of private defence?
7. We shall first deal with the question of possession of the property. That P. W. 10 sold two Mans, twenty gunths and odd land under a registered sale deed dated 14-10-1960 for a consideration of Rs. 800/-to the respondent No. 1 is no more in dispute. Relying on the evidence of D. W. 2 and the sale deed (Ext. B), the learned Sessions Judge has come to the conclusion that the consideration had been paid in full and Gurubari had put the accused persons in possession of the property. The evidence on record shows that Gurubari was a helpless relation and had actually come to live with Dukhu. The respondents were looking after Gurubari and her properties.
Though the deed of cancellation has not been produced, and its non-production has also not been explained, it is claimed that on 9-11-1962, the sale dead was cancelled by P. W. 10. Some witnesses have been examined who claim to have remained in possession as annual tenants on thika basis after 1962. The actual time of cultivation by such witnesses is not definite. Dukhu in his examination under Section 342, Criminal P. C. has stated that by the time of Thika cultivation, the land had not been sold under Ext. B. If consideration money had been paid, it does not also stand to reason that the accused persons would have quietly gone away from the property leaving it with Gurubari.
The sale in favour of the deceased of 15 gunths of land out of what had been sold under Ext. B is said to be dated 1-6-1967. The sale deed has also not been produced. Gurubari did not have possession after Ext. B. Therefore, she was not in a position to deliver possession to the deceased on 1-6-1967. The respondents were, therefore, in possession and only 2 days after the alleged purchase the deceased and his son were attempting to come upon the property on the date of occurrence for the first time to take possession thereof. The conclusion of the learned Sessions Judge on this score is not assailable.
8. The next question for consideration is whether the respondents were the assailants of the deceased and P. W. 16. According to the prosecution the deceased and his son (P. W. 16) went to the place of occurrence along with their farm servant (P. W. 14) and 2 others for ploughing and sowing paddy. At that point of time respondent Dukhu came with an axe and a spade and his son, the other respondent Rabindra came with an axe. The respondents asked the deceased and P. W. 16 to unyoke the plough. When the deceased insisted to plough the disputed land saying that it was his property, a tussle ensued between the deceased and respondent Dukhu. The deceased and P. W. 16 were assaulted. P. Ws. 11, 12, 13, 14, 15 who are eye witnesses to the occurrence according to the prosecution, have clearly stated at the trial that it is respondent Rabi who gave the axe blows on the head and ear of the deceased.
It is also the evidence of these witnesses that Dukhu had assaulted the deceased and both the respondents had assaulted P. W. 16. All these witnesses before the police during investigation had stated that the fatal blow on the deceased had been dealt by respondent Dukhu and both the respondents had assaulted P. W. 16. That also was the ease disclosed in the First Information Report (Ext. 14). The learned Additional Sessions Judge has, therefore, rightly come to the conclusion that there is a gulf of difference between the case made out in the First Information Report and the testimony of the eye witnesses in Court. It is on this account that he found it difficult to place any reliance on the testimony of the eye witnesses at least so far as the part alleged to have been played by respondent Rabi in assaulting the deceased.
A curious feature in this case is that While the witnesses had consistently stated before the police that it was Dukhu who had given the fatal blow on the deceased and the First Information Report also supported such a case, the prosecution witnesses in their evidence in examination-in-chief stated to the contrary. The Investigating Officer was further examined by us in this appeal, for rea-tons which we shall mention later on. He has stated that during trial he had a fracture of his leg and as such he was not in a position to attend to the trial. The role played by the Public Prosecutor in this case seems somewhat strange.
In view of the material discrepancy in the evidence of the eye witnesses as referred to above, we agree with the learned trial Judge that it is difficult to hold that respondent Rabindra was the author of the fatal blows on the deceased. So far as the charge of murder is concerned, it must be held to have been not established. We agree with that finding of the learned Additional Session Judge.
On the evidence on record there is, however, no doubt that the deceased as also P. W. 16 had been assaulted by the respondents. The evidence is consistent regarding both these respondents assaulting the deceased and his son. The oral evidence of eye Witnesses is supported by the doctor (P. W. 17) that the injuries sustained by the deceased and P. W. 16 were by sharp cutting and blunt weapons.
Mr. Jagadeb Ray contended that no part of the prosecution case should be accepted in view of the discrepancy between the First Information Report (Ext. 14), the statement of witnesses during investigation and the evidence at the trial. The First Information Report is not a piece of substantive evidence. It can be used for contradiction under Section 145 or for corroboration under Section 157 of the Evidence Act of the maker thereof. (See D. R. Bhagare v. State of Maharashtra : 1973CriLJ680 and Nanhku Singh v. State of Bihar : 1972CriLJ1204 .
Mr. Jagadeb Ray's further contention it that the statements recorded during investigation are so different from the evidence at the trial that we must discard the evidence at the trial as a whole on the footing that the witnesses are not at all reliable. We are not prepared to adopt such a course because so far as the story of assault is concerned, the evidence at the trial is not inconsistent with the statements recorded under Section 161, Criminal P. C. If the plea of right of private defence which has been raised on the side of the accused persons is not substantiated, the respondents are bound to be convicted under Section 324 of the Indian Penal Code and suitably punished for the said offence.
9. The next question for determination is as to whether the respondents had any right of private defence of property. Sections 96 to 106 of Chapter IV of the Indian Penal Code deal with the right of private defence. In this case we are concerned with the right of private defence of property and, therefore, the material Sections of Chapter IV are Sections 96, 97, 99, 103, 104 and 105. For convenience we extract the relevant portions thereof:-
96. Nothing is an offence which is done in the exercise of the right of private defence.
97. Every person has a right, subject to the restrictions contained in Section 99, to defend-
First- His own body, and the body of any other person, against any offence affecting the human body:
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.
The relevant restrictions in Section 99 of the Indian Penal Code are these:-
* * * *There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
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.
* * * *103. 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 wrongdoer, if the offence, the committing of which or the attempt to commit which, occasions the exercise of the right, an offence of any of the descriptions hereinafter enumerated namely,-
Secondly.- House-breaking by night;
Thirdly - Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property
Fourthly. - Theft, mischief or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.
104. If the offence, the committing of Which, or the attempting to commit which occasions the exercise of the right of private defence, be theft, or mischief, or criminal trespass, not of any of the descriptions enumerated in the last preceding section, that right does not extend to the voluntary causing of death, but does extend, subject to the restrictions mentioned in Section 99, to the voluntary causing to the wrong-doer of any harm other than death.
105. The right of private defence of property against theft continues till the offender has effected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered.
The right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint as long as the fear of instant death or of instant hurt or of instant personal restraint continues.
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.
The right of private defence of property against house-breaking by night continues as long as the house-trespass which has been begun by such house-breaking continues.
10. We are to examine the scope and ambit of the restriction dealing with recourse to the protection of the public authorities undet Section 99 of the Penal Code.
The framers of the Indian Penal Code justified the provisions of Sections 96 to 106 of the Code by saying:
It may be thought that we have allowed too great a latitude to the exercise of the right; and we are ourselves of opinion that if we had been framing laws for bold and high spirited people accustomed to take the law into their own hands and to go beyond the line of moderation in repelling injury, it would have been fit to provide additional restrictions. In this country the danger is on the other side; the people are too little disposed to help themselves; the patience with which they submit to the gradual depredations of the gang robbers and to trespass and mischief committed in the most outrageous manner by bands of ruffians is one of the most remarkable, and at the same time one of the most discouraging symptoms which the state of society in India presents to us. Under these circumstances, we are desirous rather to rouse and encourage a manly spirit among the people than to multiply the restrictions on the exercise of right of self-defence. We are of opinion that all the evil which is likely to arise from the abuse of that right is far less serious than the evil which would arise for the execution of one person overstepping what might appear to the Courts to be the exact lines of moderation in resisting a body of dacoits.
What was stated by the framers of the Code more or less applies with equal force with reference to the state of affairs prevailing today.
11. In a primitive society, the individual had the right as also the duty to protect his person and property. In a civilised society, however, the State has taken over that responsibility and simultaneously a duty has been cast on every other member of the society to respect the person and property of the other. The right of self-defence as defined by law must be fostered in the citizen of every free country and it is perfectly deal that if a man or his property is attacked, he need not run away and he would be justified in the eye of law if he held his ground and delivered a counter attack to his assailants subject to the other limitations provided in the law for the exercise of that right.
That the right of private defence serves a social purpose has been indicated by their Lordships of the Supreme Court AIR 1968 SC 702 : (1968 Cri LJ 806), (Munshi Ram V. Delhi Administration) and that right should be liberally construed. Such a right not only would be a restraining influence on bad characters, but it would encourage the right spirit of every citizen. There is nothing more degrading to the human spirit than to run away in the face of peril.
While on the one hand the existence of such right of every individual is recognised as of necessity, unless, restrictions are imposed, law and order in society are bound to be affected. A Division Bench of the Calcutta High Court in Kabiruddin v. Emperor, (1908) ILR 35 Cal 368 : (7 Cri LJ 256) observed :-
The right of self-help, when it cause or is likely to cause damage to the person or property of another person, must be restricted and recourse to public authorities must be insisted on. If a person prefers to use force hi order to protect his property when he could, for the protection of such property, easily have recourse to the public authorities, his use of force is made punishable by the Indian Penal Code.... To hold otherwise would be to encourage and put a premium on offences of rioting which are so frequent hi this part of India.' Section 99 of the Code provides some of these restrictions and the provisions have already been extracted. While recognising the right of private defence, the scheme in the Code has naturally provided for restrictions in the exercise of such right hi the interest of society. The right of private defence of body and property has, therefore, to be exercised in seek a manner that the individual need of aid (-preservation on one side and the broad interest of society on the other may be harmonised. Attempt has been made hi these provisions contained in the Code to strike that balance.
12. In this case the availability of the right of private defence to the respondents is disputed by learned Government Advocate on the ground that they had ample time to ask for protection of the public authorities and, therefore, should not have taken the law hi their own hands. We shall now proceed to examine some of the decisions cited before us in this connection.
In AIR 1949 All 89 : (50 Cri LJ 114). (Tillu Ahir v. Rex) the accused had been dis-poss8ssed from the field and the complainant had come to have settled possession. He had sown the crop. The accused came upon the property and started reploughing the field. The complainant protested whereupon the accused assaulted him. The plea of right of private defence raised in answer to the charge was negatived. It was found, that it was not a case where the accused Was acting to protect his possession. There was time to approach the public authorities for protection and one was not entitled to re-enter the property of which he has been dispossessed some time back by use of force.
In the case of Paras Ram v. Rex AIR 1949 All 274 : (50 Cri LJ 445) a learned Single Judge made a thorough analysis of the provisions of Section 97, Indian Penal Code and indicated propositions with regard to the right of private defence of property after examining many reported decisions. Some of the propositions which are material for-the present purpose are these:
(a) The accused may have lost possession but if immediately on coming to know of the other side having entered on his land or taken possession of his property he rushes to oust the trespasser, he is entitled to oust him by force. He is not bound to have recourse to lengthy process of a trial in a Civil Court. But this rule cannot be applied to a case in which the trespasser has already peacefully established himself in the enjoyment of the property for some time.
(b) If, however, there is no question of permanent deprivation of one's possession over property and the question is of infringement of enjoyment of a mere right over property, then in that case, unless the injury to be caused by the obstruction of the enjoyment to one's right is expected to be enhanced if recourse is had to public authorities for protection, one is bound to take such recourse.
(c) If the information of the expected aggression is of a definite kind it would be proper for the party in possession to inform the public authorities and seek their help but one is not bound to seek such help unless an apprehension of danger to such property has actually commenced.
(d) If the apprehension of danger has actually commenced and if one can have recourse to the public authorities before an actual injury is caused to the property or right, he must do so or else he will lose his right of private defence. This contingency usually arises when one has got definite information about the other side proceeding towards the land in dispute and the public authorities are within such a reach that one could inform them before actual damage to the property is done, for example, when the Police Station falls on the way to the land in dispute and the accused can inform them while proceeding towards it for its protection.
In the case of Horam v. Rex AIR 1949 All 564 : (50 Cri LJ 868) a Division Bench of that Court laid down that where a trespasser enters upon the land of another the person in whom the right of possession is vested, while the trespasser is in the process of acquiring possession, may turn the trespasser out of the land by force and if in doing so he inflicts such injuries on the trespasser as are warranted by the situation, he commits no offence. If on the other hand, the trespasser had already accomplished or completed his possession and the person with the right of possession, has acquiesced in this accomplishment, it is not open to the latter to avail himself of the doctrine of self-defence and by inflicting injuries on the trespasser to re-acquire possession of his land. The test laid down in this case was expressly approved by their Lordships of the Supreme Court in the case of AIR 1968 SC 702 : (1968 Cri LJ 806).
In Prem v. Rex, ILR 1950 All 167 a Division Bench of that Court was examining the claim of right of private defence with reference to the provisions of Section 99 of the Code. B, the owner of a plot of land left the village. S. the thikadar on behalf of the landlord of the village, asked R to cultivate the plot of land on the understanding that if B ever returned he would get back his land. R sowed sawan crop. S. got the field reploughed and on the very next day had sown maize crop. About 10 days after, R went to the field and began to hoe it. On the date of occurrence S's people came and assaulted R. The Court held:-
The mere fact that Ram Baran and party entered the field, which was in the possession of Sarju, and hoed 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 actual 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 protect.
In Bhartu v. State : AIR1954All35 the trespasser was found to have cultivated a portion of the field having got into possession for some time. The person entitled to possession was found to have no right to take the law into his own hands and beat the trespasser in order to dispossess him from the field. The trespasser was found to have right of self-defence and not the rightful owner.
In Ambika Singh v. State : AIR1961All38 the prosecution claimed that the land was in cultivating possession of A, who had been a sub-tenant for nearly 15 years. G, wanted to oust him and recover possession. A, had sown crops in the field, but as the crop appeared to be failing, he decided to replough the land. While he was engaged in uprooting the old crop, the accused persons came armed and mercilessly assaulted A and the members of his party. The Court observed:-
In our view a person does not lose his right to regain his property from a trespasser merely because, before taking any action, he informed the guardians of law and order of what was taking place under their regime. On the contrary, he does the right thing as a good citizen if before proceeding to help himself he brings the situation to the notice of those who have a primary responsibility to prevent and punish acts of criminal trespass against property. The law permits citizens to defend their property but does not insist, as a condition of the exercise of this right that it should be exercised behind the back of the authorities.
In the case of Queen Empress v. Narsang Patha Bhai, ILR 14 Bom 441, the accused No, 1 was found to have received information, one evening, that the complainant intended to go on his land on the following day and uproot the juvarie seed sown in it At about 3 O' clock next morning he was informed that the complainant had entered on his land and was ploughing up the seed. Thereupon he at once proceeded to the spot, followed by the other accused, and remonstrated with the complainant. The complainant and his people without paying any attention to his remonstrances, commenced an attack on the accused. In the fight which ensued, both sides received serious injuries and the leader of the complainant's party was killed.
The accused took the plea of right of private defence of property. It was held that the accused were not bound to act on the information received on the previous evening and seek the protection of the public authorities as they had no reason to apprehend a night attack on their property. The contention raised on behalf of the appellants that the information received by the accused on the previous evening was of a vague description and did not cart a duty on the accused to approach the police was upheld.
In the case of Chandulla v. Emperor AIR 1914 Cal 623 (2) : (15 Cri LJ 209) the accused were in peaceful possession of certain land. The complainant's party began to erect some house in the land stealthily in the darkness of the night. At day-break the accused on coming to know what was happening came to the place fully armed in order to drive off the trespassers. The result was that there was a free fight between the parties in which both sides were wounded. It was held that as the accused were in actual physical possession of the property in question, as they took the earliest opportunity to exercise the right of private defence, as they had no time to have recourse to public authorities and the injuries inflicted by them were within the limits allowed by the right of private defence, they were, therefore, not guilty of rioting.
In the case of In re Mooka Nadar AIR 1943 Mad 590 : (44 Cri LJ 783), Horwill, J., was dealing with a case of the charge of rioting. It was stated that a person does not lose possession of a field by going home to have a meal or to sleep. If somebody enters on his land during his absence and he does not acquiesce in the trespass, he would still retain possession of the land and as the possessor of the land he would be entitled to defend that possession. If he brings friends with him and with force of arms resists those who are trespassing on the land, who are also armed, he and his friends would not be guilty of forming themselves into an unlawful assembly; for those who defend their possession are not members of an unlawful assembly.
If a person acquiresces in his dispossesion and subsequently under a claim of title comes again to dispossess his opponents, then he and his friends would be members of an unlawful assembly and guilty of rioting. The aforesaid principle has been expressly approved in Munshi Ram's case (AIR 1968 SC 702) : (1968 Cri LJ 806). The test indicated above has a bearing on the point, inasmuch as it indicates that there can be resistance under the plea of exercise of right of private defence of property to the act of trespassing by the person in possession.
In Dorik Gope v. Emperor AIR 1946 Pat 251, examining the right of private defence in the background of the provision of Section 99 of the Indian Penal Code, Ray, J., as his Lordship then was, stated:-
In this view, therefore, we have to see in this particular case (1) whether Durga Jha had actual possession of the property; (2) whether that possession required to be protected by force; (3) whether he had time enough to have recourse to the protection of public authorities within the meaning of Section 99, Penal Code; and (4) whether the right of using that force extended to the extent of voluntarily causing death....
Coming to deal with the 3rd Paragraph of Section 99 of the Indian Penal Code, the learned Judge stated-
Keeping in view the decisions referred to above holding that a party is under no obligation to retire from his field on the appearance of a mob collected by his opponents on the scene and intent upon using violence, I would hold that Section 99, Penal Code, is no bar to the appellant Dorik getting benefit of the right of private defence of property, he having come to the scene of the occurrence to defend the actual possession of Durga Jha. Here I am taking the view that the protection of public authorities means such protection as can preserve status quo. His right of private defence of person, according to (1926) ILR 5 Pat 520 would be nonexistent for the simple reason that he came with a mob for a pre-meditated fight and in such circumstances if he is first attacked, he would have no plea of self-help available to him.
The same question was again examined by another Division Bench of the Patna High Court in the case of Narayan Raut v. Emperor AIR 1948 Pat 294 : (49 Cri LJ 406). As the facts show one N, was in possession of certain land which was not under any crop. B and his party went to the land for the purpose of ploughing the land and thus dispossessing N. N, struck B and killed him. It was held that the land was not under any crop at the time of occurrence, All that B and his party were doing was to plough the land. They were not doing any immediate harm. There was, therefore, ample time to have recourse to the public authorities for the protection of his rights. Hence N was not protected by any right of private defence of property.
In the case of Hazara Singh v. The State a person was found to have trespassed upon some property which he had cultivated and sown and had remained in possession for about a couple of months. A person claiming to be the owner wanted to drive away the trespasser by use of force. The Court found that the owner had acquiesced to be trespasser's possession and had enough time to take recourse to the protection of public authorities. As instead of having such protection he had gone to the field and tried to enter forcibly upon the property, he had made himself liable for committing criminal trespass and mischief and could not have any right of private defence of property.
A Division Bench of the Punjab High Court in the case of Hot Ram Lallu Singh v. State laid down that the law of private defence does not require that a person suddenly called upon to face an assault must run away and thus protect himself. 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. They were further of the view that it was wrong to hold that the occupiers of the land on which criminal trespass and mischief are committed in their presence by constructing a permanent water course on their land without their consent were not entitled to right of private defence because they were bound to resort to public authorities.
13. In this Court, the question has been examined hi several cases. For convenience, however, we propose to refer to three representative decisions.
In the case of Kelu Sahu v. The State, (1963) 29 Cut LT page 245, the scope of the 3rd para of Section 99 of the Code came up for consideration. Delivering the judgment of the Court, Misra, J., (his Lordship the Chief Justice) stated:-
On the finding that the deceased was in cultivating possession of the disputed land till the date of occurrence and had already sown Bangi variety of paddy 4 to 5 days before the occurrence which were likely to germinate soon, the question arises whether the deceased had the right of private defence of property. Under Section 99, IPC there is time to have recourse to protection of public authorities. Admittedly the police station is 7 miles off from the place of occurrence. The accused was still in the process of ploughing the disputed land while the deceased arrived on the spot to dissuade him from doing the unlawful act of trespass and mischief. If the land was lying fallow, an argument might be advanced with some force that no immediate injury could be caused to the property and protection of public authorities should have been resorted to. The crucial test in a case of this nature is whether the harm committed by the offender is immediate or not. The concept will vary according to the facts and circumstances of each case and no hard and fast rule can be laid down to determine the character of the harm.... We are satisfied that the harm was immediate in this case. If the deceased would not have attempted to avert it, the accused would have been in a position to destroy the seeds sown by the deceased. We would accordingly hold that there was no time to take recourse to protection of public authorities. AIR 1948 Pat 294 : (49 Cri LJ 406) cited by the appellant is distinguishable as there was no crop on the land and there was no apprehension of immediate harm. Immediate danger to the property which, if not immediately protected, would be caused by the time protection of public authorities is obtained....
In the ease of State of Orissa v. Chakradhar Behera : AIR1964Ori262 the same question was again examined. Counsel in support of the defence as far as relevant raised the following contentions :
(1) Protection of public authorities to prevent removal of paddy means such protection as can preserve status quo.
(2) On getting information that his lands would be attacked, accused No. 2 went to the spot with his men to verify the correctness of the information and he had no reasonable apprehension of danger to his property until he reached the spot.
(3) The police station at Ghanteswar had no jurisdiction over the lands at Narendrapur. The Ghanteswar Police could not have rendered any assistance to prevent the offence committed by Balaram's party.
(4) The Officer-in-charge of Bansara Police Station was inimical towards the accused and no assistance could have been expected from the Officer-in-charge even if accused No. 2 would have approached the police.
The Court held that on reading the 3rd Clause of Section 99 with the first clause of Section 105 of the Code, it is clear that the right of private defence of property commences not when the actual danger to the property commences, but when there is reasonable apprehension of danger. This is based on sound principle as the apprehension of danger is to be followed by an approach to the public authorities for protection and if the person can have recourse to the public authorities before an actual injury is caused to the property or right, he must do so, or else he will lose his right of private defence. This contingency usually arises when one has got definite information about the other side proceeding towards the land and the public authorities are within such a reach that one could inform them before the actual damage to the property is caused. The Court also found that protection of public authorities referred to in Section 99, IPC must mean such protection as can preserve the status quo.
Next comes the case of Padia Patra v. State : AIR1966Ori199 . The Court held, in this case the accused were not in possession of the Dhipa Kiari, and, therefore, they had no right of private defence of property. That apart the land itself was lying fallow and there was no apprehension of any danger to the property, if the accused had taken recourse to the protection of the public authorities without taking the law into their own hands. The Division Bench quoted with approval the dictum laid down by their Lordships in the case of (1963) 29 Cut LT 245.
14. We shall now deal with some of the decisions of their Lordships of the Supreme Court. In the case of Jai Dev v. State of Punjab : 3SCR489 it was stated:-..In a well ordered civilised society it is generally assumed that the State would take care of the persons and properties of individual citizens and that normally it is the function of the State to afford protection to such persons and their properties. This, however, does not mean that a person suddenly called upon to face an assault must run away and thus protect himself. He is entitled to resist the attack and defend himself. The same is the position if he has to meet an attack on his property. In other words, 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....
In Parbhati v. The- State of Punjab, 1968 SCD 293, the Court negatived the plea of right of private defence by saying:-.Section 99 of the Indian Penal Code, inter alia, specifically provides 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'. It has been found that the fence was put up three or four days before the day of occurrence. There was no immediate emergency which called for the removal of the fence by the appellants. It is true that going to a Civil Court or a criminal Court would take time, but even so the law enjoins that if there is time to have recourse to public authorities, then those public authorities must be approached first. It seems that the appellants knew that the fence had been put up and they wanted to establish their right of way by force. This cannot be permitted.
In the case of AIR 1968 SC 702 : (1968 Cri LI 806) the property in dispute was an evacuee property. One Jamuna was in possession as a tenant. At a public auction the property was sold by the authorities under the Evacuee Property Act to the prosecution party. It was stated that the delivery of possession was effected during the absence of Jamuna to the purchaser. The purchaser was negotiating with Jamuna to obtain actual possession. On the date of occurrence the purchaser came along with a tractor to plough the land by entering upon it. Upon resistance there was a fight. The question of right of private defence arose for decision in this background. The Court found that Jamuna was in possession. It held:-
It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law he is entitled to defend his possession even against the rightful owner. But stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than necessary. Such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost. The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time to remove the obstruction even by using necessary force.
Dealing with the plea of recourse to the protection of the public authorities, their Lordships stated-
It was urged on behalf of the prosecution that even assuming that Jamuna was in possession of the field in view of the delivery that had taken place on June 22, 1962, he and his relations had enough time to have recourse to the protection of the public authorities and therefore the appellants could not claim the right of private defence. The case of Jamuna and the appellants was that they were unaware of the alleged delivery on June 22, 1962. Admittedly neither Jamuna nor any of the appellants were present at the time of that delivery. Nor is there any evidence on record to show that they were aware of the same. Further, as seen earlier the conversation that P. Ws. 17 and 19 had with Jamuna on the day prior to the occurrence proceeded on the basis that Jamuna was still in possession of the field. Under these circumstances when the complainant party invaded the field on July, 1, 1962 Jamuna's relations must have been naturally taken by surprise. 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....
Their Lordships quoted with approval the observations made in the case of : 3SCR489 and expressly approved the dicta laid down in AIR 1949 All 564 : (50 Cri LJ 868); JLR 1955 Hyd 406, (Sangappa v. State) and AIR 1943 Mad 590 : (44 Cri LJ 783) to have properly indicated the ratio of private defence.
In the case of S. C. Karsan y. State of Gujarat, 1970 SCC (Cri) 59, the majority judgment indicated:-
On the facts of this case also we cannot possibly hold that the accused No. 1 had a right of private defence of property Assuming that the right of way is 'property' and assuming again that accused No. 1 had a right of way, he was not entitled to enforce his way with arms because there was ample opportunity to have recourse to law to enforce his alleged right. It has not been shown that there was any extreme urgency for him to have gone to his field on that day. The matter was being discussed by the Panchayat and if the Panchayat had decided against accused No. 1 he could have taken the matter to Court....
15. With reference to the several cases referred by us above, the law on the point can be summarised thus:
(1) In a civilised society the defence of person and property of every member thereof is the responsibility of the State. Consequently there is a duty cast on every person faced with apprehension of imminent danger of his person or property to seek aid of the machinery provided by the State but if immediately such aid is not available, he has the right of private defence.
(2) Whether or not a case is one in which recourse should be had to the public authorities depends upon the nature of information regarding the threat of imminent danger. The right of private defence of property commences when a reasonable apprehension of danger to the property commences and the duty to apply for protection to public authorities commences when some information of definite kind as to the time and place of danger is actually received. Thus in most of the cases the time lag between receipt of definite information and the commencement of apprehension of actual danger would be one of the determinative features.
(3) After the actual danger has commenced, there is ordinarily no question of applying for protection of the public authorities.
(4) The law does not require a person in possession of the property to run away or retire in the face of attack on it, to ask for protection of public authorities. If a reasonable apprehension of imminent danger to the property has commenced, the exercise of right of private defence is available. At such point of time no duty is cast on the accused to run for protection of public authorities.
(5) A person in possession when attacked by trespassers is entitled to maintain his possession and drive away the aggressors by use of force without applying for protection of public authorities. Where the person in physical possession has been dispossessed by the trespasser, he is even entitled in exercise of the right of private defence to drive away the intruder provided there has been no acquiescence to such dispossession and the trespasser has not obtained settled possession over the property. Here also there is no duty to run for protection and thereby allow the trespasser to have settled possession over the property.
(6) Where the accused is in physical possession of the property but at the moment of attack he is not present at the spot, on coming to know that the trespasser is getting into possession of the same or attempting to do so, is entitled to come to the spot with necessary force to repel the entry and turn away the aggressor.
(7) Where there is imminent danger to the property and the person in possession apprehends substantial injury thereto, he is entitled to raise his own arms in defence and retaliate to keep away the attack without applying for state aid.
(8) When no serious loss to the property is threatened and there is no urgency for driving away the trespasser, recourse to state aid must be taken even if the trespasser has just entered the land. This should be the rule where at the time of trespass, the person in settled possession is not upon the field. Where such person is present on the property at the time trespass is attempted, he would ordinarily have the right of private defence as soon as his possession over the property is actually threatened, no matter whether there is standing crop on the land or sub-stantial injury is apprehended or not. An exception to the requirement of seeking state aid may also be made in a case where taking advantage of the temporary absence from the field of the person in settled possession, the trespasser attempts to get into possession.
Where A is in settled possession and B trespasses and withdraws from the property trespassed, A, can re-enter the property and maintain his possession by use of force if B attempts to get into the property again.
(9) The bare fact that a police station It not far off from the scene of occurrence is not by itself sufficient to deprive a person of his right of private defence. The question in all cases is whether if the police intervention could have been timely and effective. The effectiveness of the police help depends not only on the nearness of the police station but also on the possibility of giving timely information to the police and obtaining timely assistance from the police.
(10) In dealing with cases of this type, a distinction must always be borne in mind between enforcing a right and maintaining the right. Where the owner not in possession tries to enter upon the property by show of force, the person in possession though not the owner is entitled to resist and also claim right of private defence of property.
(11) Mere preparation to meet an apprehended attack does not militate against the right of private defence if there is no time to have recourse to public authorities.
16. The facts of each case would determine as to whether in a given case the right of private defence was available to be exercised without invoking the state aid and it would be hazardous to attempt to state them with any definiteness. We have indicated certain guide-lines which can be kept in view and depending upon the facts of the case applied thereto. In view of the rules we have indicated above, the statement of the law in some of the decisions of this Court on the point would require suitable modification depending upon the facts found therein.
17. Referring to the facts of this case, as we have already found, the respondents were in possession and for the first time that morning, the deceased and his son along with some of their field servants were attempting to get into the possession of the property. It is true, the land was fallow. The deceased and his people were attempting to cultivate it. The deceased was in the process of securing ''possession. Immediate opportunity was availed by the respondents to resist the attempt of the deceased. There had been actual danger to the property by the time the respondents came to know about it. In the circumstances there was no duty cast on the respondents to retire from the field and to seek the protection of the public authorities thereby allowing the deceased and his son to perfect their possession. The respondents were thus entitled to right of private defence of property.
18. The next point for consideration is as to whether the respondents have exceeded their right of private defence. We have already found that the respondents were in possession of the property and armed with a sale deed a couple of days before the occurrence, the deceased and his men were trying to establish their possession over the disputed property. It is at that point that the dispute started on obstruction being offered by the respondents. The respondents were entitled to keep away the trespassers and offer so much of resistance accompanied by force as was necessary to repel the intruders.
One of the limits upon the exercise of right of private defence as indicated in Section 99 of the Code is that the right does not extend to the inflicting of more harm than is necessary to inflict for the purpose of defence and as indicated in Section 104 of the Code, the right extends, subject to the restrictions mentioned in Section 99, to the Voluntary causing to the wrongdoer of any harm other than death unless it is a case of the type stated therein which would justify the causing of death. It has been found that the deceased, his son and his labourers were armed, when there was resistance from the respondents, there was show of force from their side.
The respondents were, therefore, entitled to maintain their possession by keeping away the trespassers and inflict such attack as has been done in this case. We have already found that the case of commission of murder has not been established by the prosecution and on the evidence if right of private defence was not established, a case of hurt by dangerous weapon punishable under Section 324 of the Indian Penal Code would have been made out. Infliction of such injuries in the facts of this case in exercise of right of private defence of property was justified and the contention of learned Government Advocate that the respondents had exceeded their right of private defence must be rejected. We accordingly hold, in agreement with the learned Additional Sessions Judge, that the prosecution has failed to establish that the respondents had exceeded their right of private defence.
19. Our findings in this case, therefore are:-
(i) the respondents were in possession of the disputed property and on the date of occurrence, the deceased, his son and his men were attempting to get into possession of it;
(ii) the accused (respondents) had the right of private defence and they had no time to approach the public authorities for protection;
(iii) the prosecution has failed to establish that the respondents had committed the murder of the deceased Kuanr Majhi;
(iv) in exercise of their right of private defence the accused persons were entitled to inflict injuries by dangerous weapons on the* deceased and P. W. 16.
On these findings it follows that the respondents are not guilty of any offence. Their acquittal, therefore, has to be sustained and the appeal must fail.
20. In course of the hearing of the appeal, Mr. Jagadeb Ray for the respondents has contended that the entire prosecution case should be discarded as concocted in view of the discrepancy between the statements recorded under Section 161 of the Code of Criminal Procedure and the evidence led before the Court. In answer to it, learned Government Advocate took the stand that the evidence at the trial should be preferred and it is quite possible that the statements recorded during investigation may not have been properly recorded. As we have already indicated, the case of the prosecution as stated in the First Information Report and by the witnesses examined under Section 161 of the Code of Criminal Procedure was materially different from what the prosecution witnesses in their examination-in-chief in Court stated.
As learned Counsel for the parties were not in a position to offer any explanation for such a situation and in view of the contention of learned Government Advocate regarding the recording of statements under Section 161 of the Code of Criminal Procedure, we decided to examine the Investigating Officer for satisfying ourselves as to whether there had been a proper investigation. Accordingly P. W. 21, the Investigating Officer, Was further examined in this Court. He stated that investigation in the case began on 4th of June, 1967, and it was over by the 17th of July, 1967, when he obtained orders for submitting the charge-sheet. Investigation was supervised by the Sub-divisional Police Officer, who in this case was one Sri V. Appa Rao, T. P.S.
According to the Investigating Officer he had recorded the statements as required under the law as and when witnesses were being examined by him. In view of his statement that he was forwarding the copies of the case diary soon after the examination of the witnesses, but in view of the fact that the copies lent to the Sub-divisional Police Officer and the Superintendent of Police bore receipt stamps of later dates - in one case about seven weeks after and in the other more than six weeks-there was scope for doubt as to whether the case diary had been properly written and can be taken to be authentic.
We had called for the Despatch the Receipt Registers from the various Police Offices, but it was found out that those documents had been destroyed. The relevant rule authorises destruction of such records after a period of 3 years and, therefore, objection could not be taken to the destruction of the records at this point of time. The Supervising Officer who is now the Superintendent of Police, Cuttack, was also examined by us. He stated that he had supervised the investigation on the 4th June itself and he produced before us his own supervision note. In view of this statement by the Supervising Officer which we are not in a position to discard, we cannot hold that the case diary had not been recorded in time. It, however, transpires that the rules prescribed in the matter have been followed.
Rule 164 of the Orissa Police Manual Volume-I, deals with case diaries. Sub-rule (a) provides that the Investigating Officer shall keep a record of the proceedings of the investigation in a diary in the prescribed form. The main heads of information received from witnesses are required to be recorded personally in narrative form together with the names of the witnesses examined. Mention has to be made of all steps taken by the Investigating Officer and every incident of the investigation which may have a bearing on the result. Under Sub-rule (b) the diary has to be written up as the enquiry progresses and as soon as practicable after each step of the investigation.
The hour of each entry and name of the place at which it is written are required to be noted in it. It is further provided that it is permissible to keep in a note book to be maintained by every Investigating Officer in the prescribed form a brief note of the investigation as it progresses and with the help thereof to compile the case diaries subsequently in the evening of the day in which the investigation is made or in the following morning if the investigation continues late into the night.
Under Sub-rule (c) a note shall be made at the end of each day's diary at the place from, the hour at, and the means by which it is despatched,. According to the requirements of Clause (f) a carbon copy of the diary relating to each day's investigation along with a copy of any statement that may have been recorded under Section 161, Criminal Procedure Code has to be despatched to the Circle Inspector or the Sub-Divisional Police Officer the following day and in special report cases (a murder case is one of that type) another copy has to go to the Superintendent of Police. The detailed provisions made in the aforesaid rule are obviously for ensuring the sanctity of the case diary .It has to be written out contemporaneously' with' the' progress of the investigation. Copies thereof have to be forwarded to the higher Police authorities on the following day.
In this case from the evidence recorded by us from the Investigating Officer and the Supervising Officer, we are satisfied that these rules have not been strictly followed. Even if we are not in a position to hold that the case diary had not been subsequently written out at a stretch, the copies of the case diary had not been forwarded in compliance with the requirements of Rule 164 (f). There is no explanation as to why the date seals on the copies of the case diary put m the offices of the Supervising Officer and the Superintendent of Police bear dates beyond six or seven weeks of the investigation.
Police Order 106 issued for the guidance of the Police Officers by the Inspector General of Police of Orissa which was referred to by the Supervising Officer has tried to emphasize upon the importance of the matter. It is stated in the said Order:-
A number of important murder cases have recently ended in acquittal because it came to the notice of the trying Court that -
(i) the diaries had been submitted with much delay by the Investigating Officer, and
(ii) the statement of witnesses had been recorded first in private note books and the case diaries written up after some time on the basis of the notes.
Both the High Court and Sessions Courts have strongly deprecated such practice. It is, therefore, necessary to insist on strict compliance with the provisions of Police Manual Rule 164 (b) and Section 172, Criminal Procedure Code and ensure that they are followed to the letter, and that case diaries are written from day to day and despatched with the utmost promptitude. Failure to do so without very strong and justifiable reasons should meet with severe disciplinary action.
In order to check the various malpractices connected with this most important Police document the following procedure is laid down to be observed strictly in all districts :-
(i) The despatch of all case diaries mint be entered in the Despatch Register as well as the Station Diary. All case diaries must be sent in sealed covers. Every Investigating Officer should get a personal seal made with his initials....
(ii) If a Sub-Inspector is in the muffassil he must route his case diaries through the Police Station. He should send the case diaries from the muffassil in a sealed cover with the address, and crime and diary numbers noted on the cover. The Station writer will put a despatch number and date on the envelope and note the crime and diary numbers in the Despatch Register and in the Station Diary without examining the contents after satisfying himself that seals are intact.
(iii) Envelopes containing case diaries art to be opened personally by the Inspector, S. D. P. Os. and Superintendent of Police and not by writers or any other subordinate Official. These case diaries must be kept under lock and key by the superior Officer. In this connection Police Manual Rule 1010 (c) is also relevant.
(iv) A determined effort must be made to stamp out the widespread practice of antedating case diaries, of due to pre-occupation, the Investigating Officer is not able to write the case diary on any particular day, he should note the fact and give reason for the 'delay?' Honesty in 'these' matters' would be far more effective in making the Courts believe the Police version of incidents than the attempt to present a false picture of punctuality by falsification of records.
The anxiety indicated in the aforesaid Police Order seems to have remained a dead letter and the instructions contained do not seem to have borne fruit. The machinery to ensure due performance has not been effective. Therefore, there have been many instances where on account of such defects of the Investigating Officer, the prosecution has failed.
The investigating Police are primarily the guardians of liberty of innocent persons and a heavy responsibility devolves on them of seeing that innocent persons are not charged on irresponsible and false implication. It is of utmost importance that people entrusted with investigation must be scrupulously honest and efficient; otherwise, cases both of innocent persons being wrongfully convicted and of really guilty persons being let off are likely to occur. It is the duty of the Police in making an investigation to discover the truth and not simply to obtain evidence for the purpose of securing a conviction. The power conferred must be used with caution. The Police in conducting the investigation must act in such a way as to inspire full confidence in everybody concerned
Investigation must always be free from objectionable features or infirmities which may lead to the grievance of the accused that investigation is carried on unfairly or with any ulterior motive. The Investigating Officer must be made to realise the amount of social confidence reposed in him. The statement recorded under Section 161, Criminal Procedure Code, is not signed by the maker. Law authorises the Investigating Officer to record a gist of the statements and yet permits such statements to be used for the purpose of contradiction. Unless the recording of the statement is done in accordance with law in an honest manner, the entire edifice of investigation would lose its value and the social purpose behind the machinery will be frustrated.
In the case of R. P. Kapur v. State of Punjab : 1960CriLJ1239 their Lordships stated:-..It is of utmost importance that investigation into criminal offences must always be free from any objectionable features or infirmities which may legitimately lead to the grievance of the accused that the work of investigation it carried on unfairly or with any ulterior motive....
There are instances of unusual delay in submission of the report under Section 173, Criminal Procedure Code and it if mainly on account of the fact that the caw diary it not recorded in time. In the present times there seems to be room for greater anxiety on the line indicated in the Police Order referred to above. It is necessary that those in charge of investigation must be made to realise their duty and greater scrutiny and vigil must be exercised so that there may not be any room for infirmities to creep in.
G.K. Misra, C.J.
21. I agree.
B.K. Patra, J.
22. I agree.