1. In this case the Sessions Judge has acquitted all the fourteen accused of rioting and of grievous hurt, but has convicted accused Nos. 1 and 2 of culpable homicide not amounting to murder on the ground that they exceeded the right of private defence. The case arose out of a dispute as to certain land which was claimed by prosecution witness No. 1 as guardian of a minor, one Nyagaya, and by the 1st accused under a sale-deed executed in his favour by the minor's mother in 1908. In proceedings under Section 145, Criminal Procedure Code, some ten months before these occurrences, the 1st accused was found to be in undisputed possession, and the order passed under Section 145, Criminal Procedure Code, was cancelled. He had also been successful in the Civil Court on a claim put in by the 1st prosecution witness who was referred to a civil suit. His right to possession has been recognised by the Sessions Judge and may be accepted for the purposes of the case. The reliable evidence as to what led up to this affray is meagre, but it is quite clear from the evidence of prosecution witness No. 1 and prosecution witness No. 8 and from the occurrence itself that the 1st accused, anticipating that prosecution witness No. 1 and his adherents intended to obstruct him in cultivating the lands, collected a body of fourteen men, some of them at any rate armed with deadly weapons, and went on to the land prepared to give his opponents a warm reception. The accused have been acquitted of rioting, but it seems to me open to question whether in taking the law into their own hands in this manner instead of applying to the authorities and going armed with deadly weapons to the scene of dispute they did not constitute an unlawful assembly with the common object of enforcing a right or supposed right by means or show of criminal force, in which case the right of private defence would not avail, Kabiruddin v. Emperor 35 C. 368 : 12 C.W.N. 384 : 7 Cri.L.J. 359 : 7 Cri.L.J. 256 : 3 M.L.T. 385. However this may be, it appears to me that people who go armed in this manner and then when their opponents appear stab two of them to death and inflict on 7 others the injuries shown in Exhibits F to F6 should be required to discharge the onus which the law throws on them of showing that they acted in self-defence and inflicted no more injuries than were necessary for this purpose. The Sessions Judge has found that accused Nos. 1 and 2, who are shown to have killed the two deceased, exceeded that right and on a careful examination of the evidence I agree with his conclusion. He has, however, in my opinion, gone wrong in basing his finding to some extent on the fact that the accused were exercising the right of private defence of property which under the terms of the Code does not extend to the infliction of death, unless, of course, his view was that the other side did not use force to the accused and I do not gather this. When persons engaged in the exercise of the right of private defence of property are resisted and themselves attacked, the right of private defence of the body at once arises. As observed in Mayne's Criminal Law, paragraph 233, citing 1 Rolle's Abridgment Trespass, Gr. 8, 'if the trespasser resists, and in so doing assaults the party in possession, that party may repel the assault, and for that purpose may use any force which he would be justified in using in defence of his person.'
2. Even so under Section 99, Sub-section 4, 'The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purposes of defence' and the Sessions Judge has found here that there was no real necessity to cause death as the obstructions could have been removed by causing mere hurt as in the case of prosecution witnesses Nos. 1 to 7. In the circumstances of the present case, I think this observation is well founded as the accused were greatly superior in numbers and weapons to the assailants. In this connection I may say that I cannot accept the finding of the Sessions Judge that the prosecution party went on to the scene armed with spears and battle-axes. No such suggestion was made to the prosecution witnesses in cross-examination. The only suggestion was the one made to prosecution witness No. 5 that the deceased Narasimhulu had a Mallabarai (goading stick with a pin attached to it). The witness denied this but it was admitted in cross examination by prosecution witness No. 12. Defence witness No. 1, the son of the 9th accused, no doubt, said that the other side had spears, and that prosecution witness No. 3 struck the 1st accused on the head with a battle-axe : but according to the wound certificate, Exhibit XL the hurt which was simple might have been caused by a stick. Defence witness No. 2, who lives in the house of the father of the 2nd accused, said that prosecution witness No. 1 and two deceased had spears and prosecution witness No. 5 had a battle-axe, and that it was prosecution witness No. 5 and not prosecution witness No. 3 who struck the 1st accused on the head with a battle-axe. Defence witness No. 3 says the other side were armed with pikes, battle-axes and sticks, but he also appears to be a relation of the accused, and all this evidence, in my opinion, is unworthy of credit as it is not borne out by the wound certificates of the accused. Exhibit XI series, and was not suggested to the prosecution witnesses in cross-examination. I cannot help thinking that a good deal of light is thrown on the case by the evidence of prosecution witness No. 1 that he did not know the accused had gone armed to the field, and that at first when he got there the arms were hidden behind a bush. If he had known of these arms he would have stayed away or gone in greater force fully armed and the result would have been very different. How exactly the accused came by the slight injuries afterwards found on them is not proved, but in the circumstances I do not consider they rendered it necessary for the purposes of defence to kill the two deceased. The statement of the Sessions Judge in paragraph 5 that these were men, according to the evidence of prosecution witnesses Nos. 1 to 3, who took the leading part in offering obstruction to the 1st accused's party is hot borne out by the evidence of these witnesses. On the other hand, the fact that one of them was the son of their hated enemy, the village Munsif, rather suggests that the two accused were not sorry to take this opportunity of avenging themselves on their enemies. I would distinguish the case of Fateh Singh v. Emperor 20 Ind Cas. 140 : 41 C. 48 : 14 Cri.L.J. 380. on the ground that the circumstances were not the same and that the injuries inflicted stopped short of death.
3. I agree with the result arrived at by the Sessions Judge and would dismiss the appeal and confirm the conviction and sentence.
Sadasiva Aiyar, J.
4. Fourteen persons were charged with rioting, murder, grievous hurt and hurt with dangerous weapons before the Sessions Court of Kurnool. Twelve were acquitted of all the offences and the first two accused alone were convicted of culpable homicide not amounting to murder and sentenced to three years' rigorous imprisonment each. These two accused have filed this appeal. I shall state the findings of the learned Sessions Judge and other relevant facts as much as possible in his own words.
(a) The prosecution witnesses Nos. 1 to 7 and Ors. went in a body to criminally trespass upon the land' which was peaceably in the actual and lawful possession of the 1st accused on the 30th of July 1913. The prosecution party went in order to prevent its cultivation by the 1st accused, the person lawfully entitled to cultivate it.' Some of the prosecution party (including the prosecution 1st witness who was armed with a spear) were armed with spears, battle-axes and sticks (vide the evidence of defence witnesses Nos. 1 to 3). The 1st accused and his party, who had gone first to the land in order to plough it and who were also armed (some with spears) in order to prevent the apprehended criminal trespass of the prosecution side, were entitled to protect their land' against this criminal trespass on the part of prosecution witness No. 1 and his party of armed men. The 1st accused's party was entitled to turn out the intruders by force.' The hurt caused to the intruders for the purpose of turning them out was inevitable, because they went armed and unlawfully inflicted injuries upon the 1st accused's party. Such of the accused as caused injuries to prosecution witnesses Nos. 1 to 7 in the course of repelling their unlawful aggression are protected under Section 104, Indian Penal Code, by the right of private defence of property'.
(b) As regards the accused Nos. 1 and 2, they clearly exceeded their right of private defence in stabbing and killing Pedda Nagayya and Narasimhudu.' Their right of private defence of property against criminal trespass and obstruction did not authorise their causing death (vide Section 104, Indian Penal Code.') There was really no necessity to cause death as the obstructors could have been removed by causing mere hurt as in the case of prosecution witnesses Nos. 1 to 7.' There is no proof that those two deceased men attacked the 1st and 2nd accused or threatened to do any bodily injury to them.
(c) The injuries inflicted upon the accused's party by the intruders and aggressors of the prosecution party are described in the certificates, Exhibit XI, series given by the Medical Officer to the accused Nos. 1, 2, 4, 5 and 8. Four of these five accused had simple injuries caused by stick. One of them had a simple injury on his left thigh caused by stick. One of them had a simple injury on his left thigh caused by some sharp object. Another of them had simple fracture of the shaft of the left radius.
5. The learned Sessions Judge disbelieved the prosecution story that the prosecution party went unarmed and that they merely remonstrated and mediated with the accused party. The learned Sessions Judge does not state whether the two deceased persons were speared by the 1st and 2nd accused respectively after the fight began and after five of the accused party were injured or whether the stabbing took place at the very beginning as soon as the two deceased persons unyoked the bulls from the ploughs which were ploughing the 1st accused's land. That there was a free fight' between the two sides is found by the learned Sessions Judge. The evidence of the prosecution 1st witness seems to indicate that it was only after the fight began that the deceased persons were speared, and this is also corroborated by the evidence of the prosecution 2nd witness and the evidence of the defence witnesses. I further think that the probabilities are that immediately after the fatal injuries were caused in the course of the fight, the prosecution party must have fled and that the other injuries both to the members of the prosecution party and those of the accused's party had, therefore, been probably caused in the preliminary stages of the fight.
6. In a similar recent case reported as Fateh Singh v. Emperor 20 Ind Cas. 140 : 41 C. 48 : 14 Cri.L.J. 380. (where, however, only grievous hurt was caused to the prosecution side) it was held that the accused ought to be acquitted of both rioting and grievous hurt. I am inclined to hold that the learned Sessions Judge put the matter a little too favourably for the prosecution when he expected accused Nos. 1 and 2 to prove that the deceased two men just before they were speared threatened to do bodily injury' to the accused Nos. 1 and 2 specifically. In the first place, the accused Nos. 1 and 2 had a right to defend the persons of the other members also of their party. I think also that though the accused had primarily a right of private defence as regards their property, it is difficult to distinguish between the right of private defence of the property and the right of private defence of the person in such cases where the prosecution party comes upon the land not only to deprive the accused's party of their property but also to violently attack the persons of the members of the accused's party if the accused's party tried to defend their possession of the property by force.
7. The defence witnesses Nos. 1 to 3 stated that the prosecution party came with the war cries of 'Kobali and 'Konu' and even if we take it that the prosecution party were not armed with spears but only with sticks capable of causing grievous hurt (as is proved by a member of the 1st accused's party having been hurt grievously in the course of the fight), I think that Section 100, Clause (2), justifies the accused's party in even causing the death of the members of their opponents' party till the latter party gives up the fight, as the right of private defence of person arises in such cases almost simultaneously with the right of private defence of property. If the accused's party knew that the prosecution party would come only unarmed though with an illegal intention to trespass by mere show of force or by the use of only such a force which was incapable of causing grievous hurt, if the accused's party, knowing this definitely, yet went to the fields armed with deadly weapons in order to deliberately cause death to some of the prosecution party when they committed the illegal trespass the accused cannot plead the larger right of self-defence extending to the point of causing death. But as I am not satisfied that such a state of facts is proved or made probable by the evidence in this case, I would set aside the convictions of and sentences passed on the accused Nos. 1 and 2 and discharge them from prison.
8. As my learned brother differs, the case will be referred to a third Judge.
9. This appeal coming on for hearing under the provisions of Section 429 of the Criminal Procedure Code on Friday the 17th day of April 1914, and having stood over for consideration till this day, the Court deliver- , ed the following
10. The appellants in this case were convicted by the Sessions Judge of Kurnool of an offence under Section 304, Indian Penal Code (culpable homicide not amounting to, murder). In consequence of a difference of opinion between the learned Judges who heard the appeal, the case has been referred to me under Section 429, Criminal Procedure Code.
11. I see no reason to doubt that it was the appellants who inflicted the fatal injuries on the deceased persons Narasimhudu and Pedda Nagayya. I am also satisfied that the party to which appellants belonged were in possession of the disputed land : and that the affray originated from the prosecution party trespassing upon it and obstructing appellants' party from ploughing it. Under these circumstances appellants' party seem to be clearly entitled to the right of private defence conferred by Section 97, Indian Penal Code, the right to defend their land against the criminal trespass of the prosecution party, and to defend their bodies against any violence used by the prosecution party to overcome their (appellants') defence. The learned Public Prosecutor quotes Clause 3 of Section 99 : but I do not think the evidence in this case would justify the finding that there was time to have recourse to the public authorities.
12. It only remains to decide whether the appellants in killing the two deceased exceeded the right of private defence. Section 103 Indian Penal Code, has ho application to the present case, and the right of private defence of the body only extends to the causing bf death When exercised against such an assault as may reasonably cause the apprehension that death or grievous hurt will otherwise be the result, (Section 100). It is subject to the further important limitation that it in ho case extends to inflicting more harm than it is necessary to inflict for the purpose of defence (Section 99).
13. Whether these conditions were complied with must be decided with reference to the facts of the case. It seems clear that the appellants party was the more numerous of the two : and I see no reason to distrust the evidence which shows that they arrived on the ground armed with spears, battle-axes and ringed sticks, which were concealed behind a bush till the arrival of the prosecution party. The Sessions Judge believes from the evidence of defence witnesses Nos. 1 to 3 that some of the prosecution party also came armed with spears and battle-axes as well as sticks. I agree with Wallis, J., in regarding this evidence as absolutely untrustworthy. If the prosecution party were armed with such weapons one would naturally expect them to be used : and a reference to the medical evidence regarding the injuries found on various accused persons (Exhibit XI series) seems to show that no such weapons were used on them. There is a very trifling simple 'wound' described as incised, 1/8 inch deep, on the thigh of the 8th accused which doubtless might have been caused by a spear, but which by no means implies the use of such an implement. It might be caused by a poke with a sharp or jagged stick, or in many other ways. The other injuries include a simple fracture of 9th accused's left arm and a number of petty contusions. These justify the inference that the prosecution party Used sticks, and that one of the sticks at least was capable of Breaking a bone. It may be remarked that the injuries caused by Sticks on the various members of the prosecution party were much more severe, and must indicate the use either of heavier sticks, or more violence--probably the former.
14. All that can be said from the evidence as regards the weapons of the prosecution party is that they must have included sticks of moderate size and weight} sufficient when Used in favourable circumstances to cause fracture of a bone which legally amounts to grievous hurt.
15. These facts might possibly be held to satisfy the requirements of Section 100 : if appellants' party had made no attempt to resist force by force, they may have reasonably apprehended that they might suffer grievous hurt.
16. But was it necessary to indict death on the two deceased in order to defend themselves against this risk? Appellants party was hot only the more numerous but much the better armed. I agree with Wallis, J., that though the prosecution party the original aggressors were taken by surprise by the reception appellants party had prepared for them, the evidence leaves no doubt that the appellants Used their spears hot merely to disable their opponents, but to inflict as much injury as possible. The wound which killed Narasimhudu pierced right through the middle of the chest bone into the heart. Nagaya's death blow was down the collar bone into the lung. No other wounds were noted on the deceased such as to indicate that these deadly wounds were inflicted as the culmination of a long struggles or after appellants had vainly tried to disable their opponents by milder means. One can only infer that each Went for his man with the definite intention of taking his life-, and I find it impassible to hold that such violence was necessary, or justifiable in law. It seems clear that at no stage of the struggle Could the prosecution party have had the upper hand, so as to call for heroic measures.
17. I consider that the conviction must be Confirmed I have considered the question of sentence. No doubt great allowance must be made for the excitement of men engaged in a struggle of this nature and the resentment caused by the other side's aggression. On the other hand, it seems to me that appellants' party went to the field expecting, if not hoping, to be attacked, and prepared to take advantage of the chance td inflict the maximum injury they could on their adversaries. The prosecution party were the aggressors : but they fell into a trap laid for them by the other side. I think the sentences are not excessive.
18. In my opinion the appeal should be dismissed.