(1) This appeal arises out of a fight which took place between the appellants and others on the one hand and Kana Bhima and others on the other over a certain vada in the course of which the appellants received several injuries, Kana lost his life, Kana's son Parbat's head was fracturec1 and Kana's brother Same his daughter Raliat and his other son Jiva received simple hurts.
(2) The three appellants are brothers. The vada in question was purchased by appellant 1 from the Girasdar joint owners of the village and the appellant was put in possession of the vada on 1-4-51. In March 1952 he fenced ifc off by a hedge. In the meantime one of the shareholders purported to sell the Vada to Kana. Kana attempted to obtain possession of the Vada and there was an exchange of notices with his vendor but ultimately in July 1952 he was asked by his vendor to take back the consideration paid by him as he could not sell the Vada without the concurrence of his co-sharers.
It is not in dispute that Kana never obtained possession under the sale and the possession continued with appellant 1. On 12-9-52 Kana, Same Parbat, Jiva and one Popat went to the Vada in the afternoon and removed the hedge, which was put up by the appellants, and put up a new hedge. The wooden sanotha or the fork, with which this operation was carried out, was left in the Vada. At night Same went to the Vada and slept there. He had admittedly a spear with him. Sama's servant Jhina joined him a little later with an axe but he ran away shortly after the incident started and does not come into the picture at all.
Thereafter according to the prosecution at about 9 p. m. the appellants went to the Vada. Appellant 1 carried a Kharapia, appellant 2 an axe and appellant 3 a wooden sanotha. On reaching the Vada appellant 3 began to remove the hedge, which Kana had put up earlier in the day, with his sanotha. This led to an exchange of words between him and Same and as Same was trying to get up from the cot, the appellant dealt two blows to him on the head with his sanotha.
Appellants 1 and 2 dealt blows to him on the head with the Kharapia and the flat end of the axe. It is alleged that while they were beating Same they were crying Ekkjks ekjks also raised cries for help. Upon hearing these cries Kana, who lived near-by, rushed to the scene. In the meantime others had also collected there. Kana was set upon and received severe injuries, which resulted in his death. Parbat came next and he also received several Injuries, one of which resulted In his skull being fractured. Raliat and Jiva, who came on the scene in succession also received simple hurts.
By this time others had. come on the scene and on their intervention the fight ended. Kana and others were taken home, where Kana died within a short time. On these facts the appellants and 6 others were committed by the First Class Magistrate to the Additional Sessions Judge's Court on a charge Under Sections 302, 326, 324 read with Section 34, IPC The charge was however amended, in the Sessions Court by dropping Section 34 and adding Sections 148 and 149, I. F. C.
(3) The appellants admitted having gone to the Vada. Their case was that they were in possession of the Vada and on hearing of this act of dispossession after their return home in the evening appellants 1 and 3 proceeded to the Vada with a view to administer rebuke to Kana. Appellant 2 joined them later. When they reached the Vada Same dealt a blow to appellant 3 with a spear, which struck his head. Kana next arrived and he struck appellant 3 with his axe. Appellant 1 then snatched away the spear and the axe from Same and Kana. Parbat, who came next, joined in the attack on them. They did not admit having attacked Kana and his party. With the defence of the rest of the accused this appeal has no concern.
(4) The learned Sessions Judge held that the Vada was indisputably in possession of the appellants, until Kana removed the hedge that afternoon and assumed possession. He further held that the appellants went out with the common intention of re-taking possession by force if necessary but their common intention did not extend to causing the death of Kana or grievous hurt to Parbat.
He found that appellant 1 was armed with a Kharapia and was concerned in the attack on Kana which resulted in his death and held him guilty of culpable homicide not amounting to murder. He therefore convicted him Under Section 304(2), I, P. C., and sentenced him to seven years' rigorous imprisonment. He also held that appellant 1 was guilty of causing simple hurts to Same and Raliat and convicted him Under Section 323, I.P.C., and sentenced him to three months' rigorous imprisonment.
As regards the two other appellants he held them guilty of causing grievous hurt to Parbat and simple hurts to Same Raliat and Jiva and convicted them Under Sections 325 and 323, IPC and sentenced them to two years' rigorous imprisonment and three months' rigorous imprisonment respectively in respect of these offences. The sentences were ordered to run concurrently.
(5) Kana had five fractures on the skull. His lip was cut and he had several contused and incised wounds and ecchymosis. Same had two Incised wounds and ecchymosis. Jiva had six contusions, two incised wounds, swellings and ecchymosis, Parbat had a small fracture on the skull, one incised wound and three contusions and ecchymosis. All the three appellants had also several incised wounds and contusions. It is interesting to note that while each party accuses the other of attacking him, they are careful not to mention the part played by them in the scuffle. There is however no doubt that after the appellants reached the Vada there was a free light between the appellants and Same in which Kana and others joined afterwards.
(6) The learned Advocate for the appellants contended that the charge was defective inasmuch as it did not set out the common object of the unlawful assembly of which the accused were alleged to be members and he also contended that the findings of the learned Judge were not warranted by evidence. However it is not necessary to enter into detailed discussion of these points for we are satisfied that the appellants are otherwise entitled to an acquittal.
(7) We shall first deal with appellant l's liability for Kana's death. The appellant has been held guilty because although it is not proved that the blow or blows which caused Kana's death were dealt by him, he has been convicted on the ground that all witnesses say that he was concerned in the attack on Kana along with others, who, by the way, have been acquitted. He gave a definite finding that the appellants did not have the common intention to cause Kana's death. The judgment is clear that he did not share that intention with any other accused persons. Therefore he can be convicted of the offence of culpable homicide, if it is shown that he was res-ponsible for any blow, which caused the death of the deceased.
As the prosecution has not shown this, appellant 1 is entitled to an acquittal on the charge of culpable homicide not amounting to murder and he could be made only liable for causing simple or grievous hurt to Kana, unless he can successfully plead exception under the Penal Code. Therefore the only charges that survive for consideration against appellant 1 are the charges of causing hurt to Same and Raliat and also of causing hurt to Kana. Appellants 2 and 3 are held to have caused grievous hurt to Parbat and simple hurts to Same Raliat and J.iva.
(8) The appellants pleaded right of private defence of property. This plea was rejected by the learned Judge on the ground that Kana and his party having already succeeded in obtaining possession the appellants' duty was to approach the public authorities and therefore they could not plead the right of private defence. But it must be remembered that Kana and his party were undoubtedly guilty of criminal trespass accompanied by mischief by taking possession of the Vada and removing the appellants' hedge. The appellants never acquiesced in the trespass and oh hearing this they immediately proceeded to the Vada to take back possession and this plea has to be considered in the light of this background.
(9) It will be convenient at this stage to trace the origin and progress of the fight. According to Same the appellants started the fight by dealing blows to him. Appellants 1 and 3-, however, state that the fight was started by Same by dealing blows with his spear to appellant 3, these blows striking his head. The learned Judge did not accept defence version on the ground that the medical evidence did not support it. Appellant 3 was examined on the next day by Dr. Krlshnalal Sunderlal, Ex. 84, and he deposes that out of five Injuries appellant 3 had three incised wounds.
The certificate given by the Dr., Ex. 95, shows that appellant 3 had two pointed wounds on the left parietal bone the points proceeding from the ear to the forehead. The wounds were separated by a flap of skin and appeared to be one continuous wound. Same had admitted that he had a spear with him at the time. These injuries therefore support the defence version. It is Sama's case that the appellants started by removing the hedge. This was the first move in the incident.
The next move lay with Same and we do not accept his word that he merely contented himself with protesting against the removal of the hedge. He must have tried to back up his protest with force and consequently it is safe to hold that the fight was started by him by striking appellant 3 with a spear. Kana arrived next on the scene. Although Same Parbat, Raliat and Jiva all maintain in the Sessions Court that he had rushed empty-handed to the scene of the offence, they had stated before the Police and in the Committing Magistrate's Court that he had gone there with an axe.
These statements cannot be regarded as evidence that Kana went with an axe but there is independent evidence to show that Kana had an axe which he used on appellant 3. The third injury on appellant 3's head is a triangular incised wound near the two injuries noted above, a flap intervening between the two sides of the wound. According to the Dr. this injury could be caused by a sharp-edged weapon. The prosecution witnesses have no explanation to offer for this injury and we accept the defence version that a blow with an axe was given by Kana to appellant 3.
Parbat came next and admits that on seeing that his father was attacked, he dealt a blow With his Kharapia to appellant 2. Though Raliat and Jiva do not say that they took part in beating the appellants, they have received injuries and therefore they must have taken part in the scuffle. They were not only criminal trespassers initially but by striking the appellants they became the aggressors. It is not necessary to dwell upon the severity of the attack on the appellants, whose only fault was that they went to the Vada and tried to remove the hedge, which was unlawfully put up by Kana and his associates.
(10) As observed in the case of - 'Browne v. Dawson', (1840) 12 Ad and B 624 (A):
A mere trespasser cannot, by the very act of trespass, immediately and without acquiescence, give himself what the law understood by possession against the person whom he ejects and drive him to produce his title.
This quotation has been taken from - 'Chandulla Sheikh v. Emperor' AIR 1914 Cal 623 (2) (B) in which the facts were that the accused were in peaceful occupation of certain land. The complainant party began to erect some huts on the land stealthily in the darkness of night. At daybreak 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 on. these facts 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 the public authorities and as the injuries inflicted by them were within the limits allowed to the right of private defence, they were not guilty of rioting.
(11) In the present case it cannot be said that the appellants had no right to go back to the Vada and remove the hedge which was unlawfully placed there. They were attacked by the, trespassers and it cannot for a moment be argued that they had time to approach the public authorities in view of the events that followed. Kana and others could not convert their criminal trespass into 'possession' so as to drive the appellants to prove their title and the appellants were entitled to use force to ward off the attack which was delivered on them by Same and later by Kana and others who came to the rescue and suffered in consequence. Therefore we do not agree with the learned Judge that they should have approached the authorities against their-forcible dispossession and should not have gone to the Vada to take back possession with the use-of reasonable force.
(12) The next question is whether in inflicting the injuries on Kana, Parbat, Same Raliat and: Jiwa the appellants caused more harm than was-necessary. The progress of the fight, which has been traced above, leaves no doubt that the force-they used was not in excess of the needs of the occasion. Kana was not killed by appellants 2f and 3 and appellant. 1 has been exonerated fron liability for his death. Short of causing death, they were undoubtedly entitled to use force in driving away the criminal trespassers and considering the nature of the attack on them by Same and Kana and others, and the weapons-used by them, the force they used was not at all excessive.
(13) In the result the appeal must be allowed. The appellants' convictions and sentences are set aside and they are ordered to be acquitted.
(14) I agree.