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V.C. Cheriyan and ors. Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1982CriLJ2071
AppellantV.C. Cheriyan and ors.
RespondentState of Kerala
Cases ReferredRam Rattan v. State of Uttar Pradesh
Excerpt:
- - 7 is a member of the church committee as well as the road-committee examined to prove that the new road laid on 12-7-1979 was being used by the public for passage. stones were freely pelted at the accused injuring also accused 2, 4 and 8. the accused somehow made good their escape. 14 the injury can be inflicted with a weapon like m. 14 this injury can be caused by stabbing with a weapon like m. 14 the injury can be caused by stabbing with a weapon like m. 10. on a careful perusal of the evidence discussed above, we find that the lower court is perfectly right in holding that the accused 1 to 3 respectively caused the death of joseph, thomas and raghu by inflicting injuries noted in exts. in a situation like this it is not possible for an average person whose mental excitement can.....p.c. balakrishna menon, j.1. this appeal is by the accused l to 3 in sessions case no. 1 of 1980 on the file of the court of session, kottayam division, against their conviction and sentence under section 302. i.p.c. to undergo imprisonment for life. there were seven accused in the case. accused 4 to 7 were acquitted by the lower court on the finding that the offences charged against them are not established by the evidence in the case.2. all the seven accused persons were charged under sections 143, 147,148,149, 302 and 324 of the i.p.c. accused 1 to 3 were also acquitted of the offences under sections 143, 147, 148, 149 and 324, i.p.c. their conviction and sentence were only under section 302 i.p.c.3. the prosecution case is that the accused committed the offences charged against them.....
Judgment:

P.C. Balakrishna Menon, J.

1. This appeal is by the accused l to 3 in Sessions Case No. 1 of 1980 on the file of the Court of Session, Kottayam Division, against their conviction and sentence under Section 302. I.P.C. to undergo imprisonment for life. There were seven accused in the case. Accused 4 to 7 were acquitted by the lower court on the finding that the offences charged against them are not established by the evidence in the case.

2. All the seven accused persons were charged under Sections 143, 147,148,149, 302 and 324 of the I.P.C. Accused 1 to 3 were also acquitted of the offences under Sections 143, 147, 148, 149 and 324, I.P.C. Their conviction and sentence were only under Section 302 I.P.C.

3. The prosecution case is that the accused committed the offences charged against them a't 2.45 P. m. on 4-9-1979 at the junction of the Enthayar-Poonjar Road and 'he Eanthumthadam-Idamala Road newly constructed by the people of the locality within the area of jurisdicion of the Erattupetta Police Station. The new road is laid across the land belonging to the C. S. I. Church marked as No. 6 in Ext. p. 19 plan of the scene of occurrence prepared by the Village Officer. P. W. 12. The place of occurrence is marked as No. 1. No. 7 is a bungalow belonging to the Church. No. 8 marked in the plan is a shed housing the machinery for manufacturing rubber sheets. This shed also belongs to the Church, No. 9 in the plan is a U.P. School belonging to the Church. No. 11 is a shop-building belonging also to the Church. It is clear from the plan Ext. P. 19 that the new road is laid across the land in the ownership and possession of the C. S. I. Church and it reaches the Eantheyar-Poonjar Road which is said to be a public road in the locality. The first accused is the Pastor of the c. S. I. Church. Accused 2 to 4 are the children of the fifth accused. The fourth accused is the trustee of the Church. The new road was laid on 12-7-1979 across the land belonging to the Church by P. Ws. 1 to 3,5, 6 and several others including the deceased Joseph, Thomas, and Reghu. The road was laid without the permission of the Church and its officebearers. Some of the yielding trees in the land were also destroyed in the process of laying the road. The first accused in his capacity as the Pastor of the Church had initiated criminal proceedings against the persons responsible for the construction of the road. On the strength of his complaint, the Erattupetta Police had registered a case on 14-7-1979 and a charge-sheet Ext. D 4 was laid against seven persons for offences under Sections 143, 149, 427 and 447 of the I.P.C. before the Judicial Ist Class Magistrate's Court, Palai on 30-7-1979. The formal inauguration of the road was fixed to be held on 4-9-1979 at a time when the criminal case was pending against those who were responsible for laying the road across the property of the Church without its consent. Ext. P2 dated 1-9-1979 is a bit notice alleged to have been distributed in the locality informing the public that the road will be formally inaugu-. rated on 4-9-1979. P. Ws. 1 to 3. 5 and 6 and several other persons including Joseph, Thomas and Raghu had assembled at the site of the road junction at about 2.45 p. m. on 4-9-1979. It was then noticed that that stumps of areca trees and stones were placed at the road-junction to prevent access to the new road from the Eanthayar-Poonjar Road. A loud-speaker in a jeep announced that the road is being inaugurated. P. W. 1 removed the areca stumps and the others assembled started removing the stones placed across the new road at the road-junction. While the obstruction was being removed the accused persons attacked P. Ws. 1 to 3, 5 and 6 and also Joseph. Thomas and Raghu. The first accused stabbed Joseph on the left side of the chest with M.O. 1 knife, the second accused stabbed Thomas at his chest with M.O. 2 knife and the third accused stabbed Raghu at his chest with M.O. 3 knife. The fourth accused stabbed P. W. 2 with M.O. 4 knife. The fifth accused threw stones at the head of one George (not examined in this case) and the sixth accused threw stones at the left hand of P. W. 5. The seventh accused threw stones at Joseph, Thomas and Raghu. The injured were taken in two jeeps to the Medical College Hospital, Kottayam. P. W. 8 the Tutor in Forensic Medicine on examination found Joseph, Thomas and Raghu dead, and he gave intimation of death of these persons to the police Station. Exts. P4 to P6 are the intimation slips despatched by P. W. 8. P. W. 9 the Asst. Professor of Surgery, Medical College Hospital examined P. Ws. 2, 3. 6 and George who were injured in the incident. He issued Exts. P-7, P-8, P-9 and P-10 wound certificates relating to the injuries found on P. Ws. 2, 3, George and P. W. 6. All these persons were admitted as inpatients in the hospital. P. W. 13 the Sub-Inspector of Police Erattupetta Police Station on information about the incident proceeded to the Medical College Hospital. As the injured were not in a position to speak, he recorded Ext P-1 first information statement of P. W. 1 who was also there in the hospital. The accused had also sustained injuries in the incident. They were admitted in the Taluk Headquarters Hospital at Palai. P. W. 13 went to that hospital and recorded the statement of the first accused produced in the case as Ext. P-21. He registered crime No. 164 of 1979 on the strength of Ext. P-1 statement of P. W. 1. He also registered Crime No. 165 of 1979 on the basis of Ext. P-21 statement of the first accused. Exls. P-20 and P-22 are the first information reports in the respective cases. The investigation was conducted by p. W. 15 the Circle Inspector of Police Crime Detachment, Kottayam. He held inquest on the dead bodies of the deceased Thomas, Joseph and Raghu, on 5-9-1979. Exts. P-26, P-27 and P-28 are the respective inquest reports prepared by P. W. 15. P. W. 14 the Tutor in Forensic Medicine, Medical College, Kottayam conducted autopsy and issued Exts. P-23 to P-25 post-mortem certificates relating to Joseph, Thomas, and Raghu. The post-mortem certificates show the ante mortem injuries found on the dead bodies of the deceased. P. W. 15 prepared Ext. P-29 scene mahazar and recovered M.O. 4 knife from the place of occurrence. He arrested accused 1, 2, 4 and 5 on 17-9-1979. Accused 6 and 7 were arrested the next day. The third accused was arrested on 26-9-1979. The prosecution alleges that he produced the weapons M. Os. 1 to 3 taken into custody by P. W. 15 under Ext. P-34 mahazar. The investigation of Crime No. 165/1979 was also conducted by P. W. 15. He filed final reports charge-sheeting the accused in both the cases,

4. In this appeal we are concerned only with the question as to whether the conviction and sentence of the accused l to 3 under Section 302 I.P.C. are sustainable in law and on the facts proved in the case. As earlier stated the lower court itself has acquitted the accused 1 to 3 of all other charges.

5. The prosecution has examined 15 witnesses and has marked Exts. P-1 to P-34 to prove its case. M, Os. 1 to 12 are the material objects produced by the prosecution, p. Ws, 1 to 6 are said to be eye-witnesses to the incident. P. W. 7 is a member of the Church Committee as well as the road-committee examined to prove that the new road laid on 12-7-1979 was being used by the public for passage. P. W. 8 is the Tutor in Medicine Medical College, Kottayam who on examination of Joseph, Thomas and Raghu found them dead and despatched Exts. P-4 to P-6 intimation to the Police Station. P. W. 9 is an Assistant professor of Surgery of the Medical College, Kottayam who admitted P. Ws. 2, 3 and 6 and George as in-patients in the hospital and issued the wound certificates Exts P-7 to P-10 relating to the injuries found on them. P. W. 10 is the Assistant Surgeon of the Taluk Headquarter Hospiter, Palai. He admitted accused 1, 2. 4 and 6 in the hospital and issued the respective wound certificates Exls. P-17, P-16, P-15 and P-14 in respect of the injuries found on them. P. W. 11 is a clerk in the Court of the Judicial 1st Class Magistrate, Palai who despatched some of the material objects for chemical examination. P. W. 12 is the Village Officer who prepared Ext. P-19 plan of the scene of occurrence. P. W. 13 is the Sub-Inspec-tor of Police Erattupelta Police Station who recorded Ext. P-1 first information statement of P. W. 1 and Ext. P-21 statement of the first accused and prepared Exts. P-20 and P-22 first information reports on the basis of the statements recorded by him. P. W. 14 is a Tutor in Forensic Medicine in the Medical College, Kottayam, who conducted autopsy on the dead bodies of Joseph, Thomas and Raghu and issued the postmortem certificates, Exts. P-23 to P-25. P. W. 15 is the Circle Inspector of Police, Crime Detachment Kottayam who investigated the case.

6. After the close of the trial when questioned under Section 313 of the Cr. P.C. the accused stated that the road was laid without the consent of the Church, across the Church-property and a criminal case is pending against those who laid the road. A fencing was put up to prevent further trespass. On 4-9-1979 several people gathered to remove the fence. When the 1st accused objected to its removal, P. W. 1 and others pelted stones hitting him at his face and back, and while he was running away, the assailants chased him and hit him with stones. When he cried aloud several people came running to the place of incident and there was a commotion. Stones were freely pelted at the accused injuring also accused 2, 4 and 8. The accused somehow made good their escape. Accused 1, 2, 4 and 6 were admitted as inpatients in the Taluk Headquarters Hospital, palai on account of the injuries sustained by them.

7. That the three persons Joseph, Thomas and Reghu died as a result of the stab injuries sustained by them admits of no doubt. The post-mortem certificates Exts. P-23, P-24, and P-25 issued by P. W. 14 who conducted autopsy on their bodies show the ante mortem injuries sustained by them. P. W. 14 has given evidence in support of Exts. P23 to P25. Ext. P23 shows that on the body of Thomas, there was an incised penetrating wound 1.6 c. m. horizontally placed on the left side of the chest, the inner end being 4 cm. left of mid-line and 4.5 cm below the left nipple. On dissection it was found that the wound had entered the left chest cavity through the fifth inter coastal space and punctured the left lower chamber of the heart. The wound was directed backwards, downwards and to the left and had a minimum depth of 4 cms. According to p. W. 14 the injury can be inflicted with a weapon like M.O. 2. Ext. P24 shows an incised penetrating wound 1.6 cm. obliquely placed on the left side of the chest, of Joseph, the inner upper and being 0.5 cm. to the left of mid-line and 5 cms. below the level of left nipple. On dissection the wound was found having entered the left chest cavity through the left fourth inter-coastal space and penetrated into the right lower chamber of the heart. The wound was directed backwards and upwards to the right for a minimum length of 3 cms. According to P. W. 14 this injury can be caused by stabbing with a weapon like M.O. I. Ext. p-25 shows that Raghu had an incised penetrating wound 2.1 cm. long horizontally placed on the left side of the chest the inner end being 4.5 cm. left of mid-line and 5 cm. below the level of the left nipple and it was found that the wound had penetrated through the fifth left inter-coastal space and right chamber of the heart. The wound was directed downwards, forwards, for a minimum depth of 5 cms. According to P. W. 14 the injury can be caused by stabbing with a weapon like M.O. 3. There was only one injury each on the deceased Joseph, Thomas, and Raghu and according to P. W. 14 these injuries are sufficient in the ordinary course of nature to cause death.

8. P. Ws, 1 to 6 are eye-witnesses to the incident. P. Ws. 1 to 3, 5 and 6 had participated in removing the obstruction caused to the road laid across the church property. They were also confronted by the accused persons and had sustained injuries in the incident. Exts. P7, P8 and P10 are the wound certificates issued by P. W. 9, the Assistant Professor of Surgery, Medical College, Kottayam in respect of the injuries sustained by P. Ws. 2, 3 and 6. There is also the independent evidence of P. W. 4 Annamma who is residing near the scene of the incident, she has deposed that at about 3 p, m. on 4-9-1979 she had gone out of her house to cut grass for her cow. She saw deceased Joseph, Thomas and Raghu in company of P. Ws. 1, 2,3, 5, 6 and others on one side of the road and the accused persons on the other side. Since there was some commotion P. W. 4 stepped into the nearby house of Kuttyanikkal Chacko to see what was happening. She heard an announcement through a loudspeaker that the road is being inaugurated. She saw P. W. 1 and others removing the obstruction placed at the road. Shortly afterwards the first accused shouted in protest against the removal of the obstruction and approaching the scene of incident stabbed Joseph at his chest. She has also seen the second accused stabbing Thomas and the third accused stabbing Raghu. The three injured persons fell on the ground. There was pelting of stones by the rival parties against each other. One of the stones pelted reached the place where she was standing whereupon she Sot into a room inside the house. She had also seen the injured being removed in a jeep. Nothing has been brought out in her cross-examination to discredit her testimony. The evidence of P. Ws. 1 to 3, 5 and 6 is also consistent with the version of the incident deposed to by P. W. 4. P. W. 2 in his deposition admits that himself and his son P. W. 3 pelted stones on the opposite party, p. Ws. 3 and 6 also admit the pelting of stones by their party immediately after accused 1 to 3 stabbed Joseph, Thomas and Raghu. According to P. Ws. 1 to 6 the pelting of stones was after the stabbing incident. The evidence of P. Ws. 1 to 6 is accepted by the lower court to find the accused 1 to 3 guilty of the offence under Section 302 I.P.C. for the murder of Joseph, Thomas and Raghu respeectively.

9. The court below has also found that there is no material to hold that the murder of the deceased was in contemplation of the accused when they gathered at the scene of occurrence. There is no proof of a common object to commit the offence and the accused are found not guilty of the offence under Section 149, I.P.C.

10. On a careful perusal of the evidence discussed above, we find that the lower court is perfectly right in holding that the accused 1 to 3 respectively caused the death of Joseph, Thomas and Raghu by inflicting injuries noted in Exts. P23, to P25. The finding that there was no common object to commit any offence is also fully justified on the evidence in the case.

11. The learned Counsel for the appellants submits that the accused are fully protected by the provisions of Section 97 of the I.P.C. as according to him, the act of accused l to 3 in inflicting stabbing injuries on the deceased persons was in exercise of their right of private defence of their own body and the property of the church of which the first accused is the Pastor and the fourth accused is the Trustee. Under Section 97 of the I.P.C. every person has a right subject to the restrictions contained in Section 99 to defend his own body and the body of any other person against any offence affecting the human body and also the property whether movable or immovable of himself or of any other person against any act which falls under the definition of theft, robbery, mischief or criminal trespass or which is an attempt to commit any of these offences. Paragraph 3 of Section 99 enacts 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 is also provided in Section 99 that 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. Under Section 100 the right of private defence of the body extends subject to the restrictions in Section 99 to the voluntary causing of death or any harm to the assailant if the offence which occasions the exercise of the right be of any of the descriptions enumerated therein including assault as may reasonably cause the apprehension of death or of grievous hurt, In cases where the offence is not of any of the descriptions enumerated in Section 100 the right of private defence of the body under Section 101 extends subject to the restrictions under Section 99 to the voluntary causing of any harm other than death. Under Section 102 the right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed; and it continues as long as such apprehension of danger to the body continues. Section 103 enumerates the offences against which the right of private defence of property extends, subject to the restrictions in Section 99 to the voluntary causing of death or any other harm to the wrong-doer. As per Section 104 I.P.C. if the offences, the committing of which or the attempting to commit which, occasions the right of private defence, be theft, mischief or criminal trespass, not of any of the descriptions enumerated in Section 103, the right of private defence to property does not extend to the voluntary causing of death but extends subject to the restrictions in Section 99 to the voluntary causing to the wrong-doer of any harm other than death. Under Section 105 I.P.C. the right of private defence of property commences when a reasonable apprehension of danger to the property commences and continues until such time as is mentioned in the Section. The right of private defence of property against criminal trespass or mischief continues as long as the offender continues in the commission of the offence,

12. In Venkata Siva Subbrayanam v. State of Andhra Pradesh : 1970CriLJ1004 the dispute between two rival parties related to a low lying area referred to as the 'Kunta' vested in the Government, serving as an irrigation tank fed by rain water. The persons referred to in the judgment as occupiers had been cultivating portions of the Kunta. There were disputes between the parties and both parties had filed civil suits and obtained orders of injunction from the civil court. The occupiers had obtained an order of injunction restraining accused 1 to 4 from interfering with their possession and the orders secured by the accused restrained the occupiers from cutting any breaches in the bund they had put up. A new bund was put up by the accused, which prevented rain-water collected from flowing out. There was an attempt to forcefully remove the bund by the party of the occupiers. Some of the occupiers went towards the bund and started removing a portion of the same. The accused parly resisted and beat some of the occupiers. The occupiers snatched the stick fro.n some of the accused persons and retaliated causing injuries to some of them. At this point of time accused No. 10 who was standing near the place of incident threatened to shoot at the occupiers' party wielding a gun in his hands. Two among the occupiers' party went towards accused No. 10 challenging him to shoot if he dared. The 10th accused thereupon stepped forward and fired at deceased No. 1 from a distance of about 10 yards. He fell down dead on the spot. A pellet grazed the nose of P. W. 1 who was a couple of yards behind the deceased and he too fell down. Accused 2 hit P. W. 1 at the back as a result of which he fell down unconscious. The 10(h accused fired a second shot as a result of which deceased No. 2 also fell down dead. A third shot, was fired killing deceased No. 3. Several of the occupiers' parly received pellet injuries in the course of the firing.

13. In considering the question of private defence to person and property, the Supreme Court stated in paragraph 17 of its judgment as follows:

17...The right of private defence of persons and property is recognized in all free, civilised, democratic societies within certain reasonable limits. Those limits are dictated by two considerations : (1) that the same right is claimed by all other members of the society and (2) that it is the State which generally undertakes the responsibility for the maintenance of law and order. The citizens, as a general rule, are neither expected to run away for safety when faced with grave and imminent danger to their person or property as a result of unlawful aggression, nor are they expected, by use of force, to right the wrongs done to them or to punish the wrongdoer for commission of offences. The right of private defence serves a social purpose and as observed by this Court more than once there is nothing more degrading to the human spirit than to run away in face of peril; (Munshi Ram v. Delhi Administration, Criminal Appeal No. 124 of 1965, p/-27-11-1967: reported in AIR 1968 SC 702) and Krishna v. State of Rajasthan, Criminal Appeal No. 23 of 1960, dt. 30-10-1962 (SC). But this right is basically preventive and not punitive. It is in this background that the provisions of Sections 96 - 106. Indian Penal Code which deal with the right of private defence have to be construed.

On the facts of the case, the Supreme Court found that the occupiers and their supporters had gone to the spot, in large numbers fully determined to remove the bund by use of force and this attempt was spoiled by the accused persons with show of force. The party of the occupiers mercilessly beat up some of the accused persons who were advanced in age. The Supreme Court held this conduct on the part of the occupiers and their supporters was sufficient on the facts of the case to give rise to a reasonable apprehension in the mind of accused No. 10 that the victims of the assault would have been killed had he not exercised the right of private defence, and the use of the gun by the accused against the members of the opposite faction was justified. The Supreme Court stated at page 1088 (of AIR): (at p. 1013 of Cri LJ) as follows:

In a situation like this it is not possible for an average person whose mental excitement can be better imagined than described, to weigh the position in golden scales and it was, in our opinion, well-nigh impossible for the person placed in the position of accused No. 10 to take a calm and objective view expected in the detached atmosphere of a Court and calculate with arithmetical precision as to how much force would effectively serve the purpose of self-defence and when to stop. It appears that the persons against whom the gun was used were the real aggressors from whom accused No. 10 agitated in mind as he must be at that time, apprehended grave danger to the lives of the other accused persons and ultimately to himself. We are, therefore, satisfied that accused No. 10 was fully justified in using his sun in exercise of the right of private defence against the party of the prosecution witnesses who had come to the post in support of the occupiers to use force in removing the bund and who actually did use it and mercilessly beat up the accused persons and that accused No. 10 did not exceed this right. In the decision in Deo Narain v. State of U.P. : 1973CriLJ677 the Supreme Court at page 475 (of AIR) : (at p. 679 of Cri LJ) stated thus:

5...The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. It is a preventive and not punitive right. The right to punish for the commission of offence vests in the State (which has a duty to maintain law and order) and not in private individuals. If after sustaining a serious injury there is no apprehension of further danger to the body then obviously the right of private defence would not be available. In our view, therefore, as soon as the appellant reasonablv apprehended danger to his body even from a real threat on the part of the party of the complainant to assault him for the purpose of forcibly taking possession of the plots in dispute or of obstructing their cultivation, he got the right of private defence and to use adequate force against the wrongful aggressor in exercise of that right. In the decision in Puran Singh v. State of Punjab : AIR1975SC1674 the following passage has been quoted from the decision in AIR 1968 SC 702 : 1968 Cri LJ 806. (At p. 1485 of Cri LJ).

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 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 possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than necessary. Such en try 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. Explaining the expression 'settled possession' occurring in the passage quoted above, the Supreme Court observed at p. 1681 (of AIR) : (At p. 1486 of Cri LJ) thus:

11...It is indeed difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into a settled possession. But what this Court really meant was that the possession of a trespasser must be effective, undisturbed and to the knowledge of the owner or without any attempt at concealment. For instance a stray or a casual act of possession would not amount to settled possession. There is no special charm or magic in the words 'settled possession' nor is it a ritualistic formula, which can be confined in a strait jacket but it has been used to mean such clear and effective possession of a person, even if he is a trespasser, who gets the right under the criminal law to defend his property against attack even by the true owner.The following passage from the decision in Jai Dev v. The State of Punjab : [1963]3SCR489 is quoted at p. 1683 : (of AIR) : (At p. 1488 of Cri LJ).

18...

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...

There can be no doubt that in judging the conduct of a person who proves that he had a right of private defence, allowance has necessarily to be made for his feelings at the relevant time. He is faced with an assault which causes a reasonable apprehension of death or grievous hurt and that inevitably creates in his mind some excitement and confusion. At such a moment, the uppermost feeling in his mind would be to ward off the danger and to save himself or his property and so, he would naturally be anxious to strike a decisive blow in exercise of his right.

The question as to whether the accused had used more force than necessary would depend on the facts and circumstances of each case. The Supreme Court stated at page 1685 (of AIR) : (At p. 1490 of Cri LJ):

As held by us this was a case where the appellants were fully entitled to the exercise of the right of self defence of their property and person both because their persons had been attacked and their property had been trespassed upon and damaged. It is manifest that after the two persons on the side of the accused received gun-shot injuries as found by the High Court and by us, the accused party would have undoubtedly a reasonable apprehension that either death or grievous hurt could be caused to the appellants or one of them. This being the position they were fully justified in causing the death of the deceased person in the exercise of their right of private defence of person. Such an apprehension could not be said to be hypersensitive or based on no ground and it will be idle to contend that the accused should have waited until one of their party members would have died or received serious injuries before acting on the spur of moment, nor can one expect a person who is attacked by an aggressor to modulate his blows in accordance with the injuries he receives. In these circumstances, therefore, it cannot be said that the accused had in any event exceeded their right of private defence.

14. In the decision in Ram Rattan v. State of Uttar Pradesh : 1977CriLJ433 it is stated thus at page 622 (of AIR) : (At p. 436 of Cri LJ):

It is well settled that a true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing, and has not accomplished his possession but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law'. There is no dispute that P. Ws. 1 to 3, 5 and 6 and the deceased Joseph, Thomas and Raghu along with several others had laid the road across the property belonging to the church of which the first accused is the Pastor. Merely because an act of trespass had been done, it is not possible to hold that the trespass had been completed and those responsible for laying the road obtained possession of the land. The land continues to be in the possession of the church. Against the act of trespass, committed on the land, the first accused had initiated criminal proceedings as per Ext. D4 charge-sheet produced in the case, and a criminal case was pending before the Judicial 1st Class Magistrate's Court, Palai. It was in exercise of the right of ownership and possession of the property that the accused persons had closed down the passage to the road by putting up a barricade of stones and stumps. Since the church has possession of the property the accused persons on behalf of the church are entitled to obstruct any trespass on the church property. There is nothing on record to show that the bit notice Ext. P2 dated 1-9-1979 was circulated in the locality sufficiently early for the accused to have recourse to public authorities. There is also nothing on record to show that the bit notices relating to the proposed inauguration of the road on 4-9-1979 were brought to the notice of the accused. The accused had the right to defend the property against trespass or mischief, A large number of people including the deceased and P. Ws. 1 to 3, 5 and 6 had assembled at the road injunction and the incident, according to the evidence discussed above happened at a time when the barricade put across the road in the church property was being removed by those assembled at the place of incident. The pelting of stones took place according to the evidence in the case after the accused 1 to 3 stabbed Joseph, Thomas and Raghu. The deceased persons as well as others in their group were unarmed. Nevertheless they were committing trespass and mischief by removing the barricade put across the road.

15. No offence of the nature mentioned in Section 103 had been committed or attempted to be committed by the deceased or the members of their party. The right of private defence of property cannot therefore extend to the causing of death, Such right would extend only to what is provided for in Section 104 'to the voluntary causing to the wrongdoer of any harm other than death'. This is therefore a case where accused 1 to 3 have clearly exceeded their right of private defence. The present case falls under Exeption II to Section 300 I.P.C. It cannot be said that the accused caused the death of the deceased with any intention of doing more harm than is necessary for the purpose of defence of the church property. There is also nothing on record to draw an inference that the accused acted with premeditation. The incident happened when the accused were confronted with a situation where large number of persons including the deceased were found committing trespass and mischief in the property belonging to the church. However, from the nature of the injury inflicted, the accused should be presumed to know that their act of stabbing is likely to cause the death of the victims, even though they had no intention of causing death or of such bodily injury as is likely to cause death. We hold that the accused 1 to 3 are guilty of the offence punishable under Part II of Section 304 I.P.C.

We allow the appeal in part setting aside the conviction and sentence of accused 1 to 3 under Section 302 I.P.C. and convict them under Part II of Section 304 I.P.C. We sentence accused 1 to 3 to undergo rigorous imprisonment for 7 years.


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