(1) This revision is against the order of the Sessions Judge, Central Saurashtra Division, confirming in appeal the applicant's conviction under '8. 324, I. P C. and sentence of three months' rigorous imprisonment.
(2) The facts as found by the Sessions Judge are as follows:
The applicant was in possession of a certain field as a mortgagee in possession from the complainant Jlwa and his brother Nathu. Disputes had arisen between the parties about possession and cross-complaints had been filed by the parties which has however ended In acquittal. An application Under Section 4, Mamlatdars Courts Ordinance was made by Nathu to the Mamlatdar for a declaration that he was in possession of the field and the Mamlatdar had held in that application that the possession must be considered to be that of the applicant and referred him to a civil Court.
On 20-7-52 the applicant and some others went to the field and started sowing operations. The complainant Jiwa, his brother Nathu, Jiwa's wife Kunver and one Chana, their distant relative, went to the field and tried to stop the applicant from sowing the field. Chana lived in another village but he happened to be on a visit to them on that day. After their arrival in the field a quarrel ensued and Kunver seized the reins of the applicant's bullocks. The applicant thereupon snatched a spade from some one near by and caused injuries to Kunver. Chana, according to prosecution, had by that time gone near the applicant and his party and it has been held by the learned Sessions Judge that the applicant gave three blows on the head of Chana with the blunt part of its iron head.
The learned Magistrate convicted the applicant of the offence Under Section 324, IPC in respect of the hurt caused to Chana and sentenced him to three months' rigorous Imprisonment. In respect of the hurt caused to Kunver he convicted the applicant Under Section 323, IPC and sentenced him to pay a fine of Rs. 25/-. In appeal the learned Sessions Judge held that as regards Kunver the applicant was acting in the exercise of his right of private defence of property and acquitted him in respect of the hurt caused to her. As regards the injuries caused to Chana, he took the view that as no injuries were caused to the applicant or his men, Chana as well as Jiwa and Nathu could not be said to have tried to recover possession of the field from him by force, which could justify him using force against Chana. He would have been justified, if Chana had refused to go away after beine; asked by the applicant to leave the field. The learned Sessions Judge further held that in causing three Injuries on the head to Chana, the applicant exceeded his right of private defence. In the result he confirmed the applicant's conviction and sentence to respect of the injuries caused to Chana.
(3) The learned Sessions Judge, while holding that the complainant and his party had gone there to prevent sowing operations, made a distinction between the cases of Kunver and Chana on the ground that Kunver used force while Chana did not. and therefore in the case of Chana the applicant could not claim his right of private defence of property.
We are unable to understand how the distinction can be made. The learned Sessions Judge's finding about possession by the applicant is veity clear. After the Mamlatdar's order the complainant and his party had no excuse to disturb the applicant's possession and their entry into the field could not be said to be in the bona fide exercise of their right of property. They had entered the field with the intention of preventing the applicant from carrying out his lawful operations and therefore every one of them was clearly guilty of criminal trespass. So long as that trespass continued the applicant had a perfect right to eject every one of them irrespective of whether force was used by any of them. His right was not subject to the condition that he should first request them to leave the field. Any such request would have been useless in view of what Kunver did and in view of the fact that the complainants were not satisfied with the Mamlatdar's ruling and took the law in their own hands.
It appears to us therefore that even though Chana and other male members of the party did not use actual force against the applicant, his right to eject them by force was in no way affected thereby and he could use force against every one of them to the same extent as against Kunver. They had committed a criminal trespass and that trespass was continuing so long as they remained on land and his right to eject them by force continued so long as they remained on the field. We therefore hold that the applicant had the right to use force against Chana in the exercise of his right of private defence.
(4) The learned Sessions Judge's finding that the applicant had exceeded his right in causing three injuries to Chana on the head also cannot be sustained. The applicant was faced with a party of four persons determined to prevent him from carrying on sowing operations. Some quarrel appears to have preceded the attack by the applicant and Kunver had actually seized the reins of the bullocks. Under the circumstances, the applicant could not be expected to weigh nicely the amount of force, which he would be entitled to use against them, and it cannot be said that the injuries, which were caused to Chana, were in excess of the needs of the occasion.
The learned Advocate General argued that the applicant exceeded his right in selecting a heavy weapon like a spade for the purpose of the attack and in giving three successive blows to Chana on a vital part of the body. We do not think that the choice of the weapon was deliberate on the part of the applicant. The spade happened to be at hand and the applicant made use of it. Similarly there is no reason to suppose that he deliberately selected the head for the attack. If his intention was to wreak vengence or to cause more harm than was necessary, he could easily have used the edge of the spade and could have continued to give many more blows.
We do not think that the distinction between j the cases of Kunver and Chana on the ground that Kunver had used force while Chana did not is well founded. The injuries to both of them had been caused in the course of the same trespass committed with the same common object, and considering the number of trespassers and the fact that only simple hurt was caused to Kunver and Chana, it cannot be said that the applicant had exceeded his right of private defence.
(5) In the result we hold that the applicant is entitled to an acquital. The learned Sessions judge's order is therefore set aside and the applicant is ordered to be acquitted.