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CASE NO.:

Appeal (crl.) 1225 of 2001

PETITIONER:

SUBRAMANI AND ORS.

Vs.

RESPONDENT:

STATE OF TAMIL NADU

DATE OF JUDGMENT: 28/08/2002

BENCH:

N. SANTOSH HEGDE & B.P. SINGH.

JUDGMENT:

B.P. Singh, J.

This appeal by special leave is directed against the judgment

and order of the High Court of Judicature at Madras dated

17.04.2001 in Criminal Appeal No. 602 of 1992. There are four

appellants in this appeal. Appellant No.1, Subramani is the father

of the remaining appellants namely, Venkatesan (appellant No.2),

Ganesan (appellant No.3) and Govindaraj (appellant No.4). They

have impugned the judgment and order of the High Court whereby

while setting aside their conviction under Sections 302 and 302/34

I.P.C., the High Court found them guilty of having exceeded their

right of self-defence and found them guilty of the offence

punishable under Section 304 Part I read with Section 34 I.P.C.

The High Court also found the appellants guilty variously of the

offences under Section 324 and Section 326 I.P.C. However, the

High Court acquitted them of the charge under Section 447 I.P.C.

on a finding that the land in question was in their cultivating

possession as tenants and therefore in the facts and circumstances

of the case they could not be held guilty of the offence of criminal

trespass. Apart from the appellants herein, two others namely

accused Nos.5 and 6 were put up for trial before the Court of

Sessions in Sessions Case No. 46 of 1992 charged variously of

offences under Sections 302, 302/34, 324, 326 I.P.C. read with

Section 149 I.P.C. as also under Sections 147, 148 and 447 I.P.C.

The learned Sessions Judge, however, acquitted accused Nos. 5

and 6 finding no evidence against them, but found the appellants

herein guilty and sentenced them to various terms of imprisonment

under different Sections of the I.P.C. Appellants No.1 and 2 were

convicted by the Trial Court for the offence under Section 302

I.P.C. and appellants No.3 and 4 for the offence under Sections

302/34 I.P.C., and sentenced to suffer imprisonment for life. All

the appellants were also found guilty of the offence under Section

447 I.P.C. for which they were sentenced to three months rigorous

imprisonment. Appellants 1 and 3 were found guilty of the

offences under Sections 324 and 326 I.P.C and sentenced to

rigorous imprisonment for 2 years and 5 years respectively under

the aforesaid sections. Appellants No.2 and 4 were found guilty of

the offence under Section 324 I.P.C. and sentenced to two years

rigorous imprisonment.

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The occurrence giving rise to this appeal is alleged to have

taken place on 20th April, 1991. The case of the prosecution is

that the deceased Jayavelu purchased 1.83 acres of land in Survey

No.56/1 in Renukapuram from Murugesa Mudaliar and Savithri.

However, appellant No.1 herein who was the cultivating tenant of

the aforesaid land was obstructing delivery of possession of the

land to the deceased who had purchased this land. Panchayat had

been convened which had decided that half of the land should be

retained by the deceased purchaser and the other half should be

given to appellant No.1 who should pay the price thereof within

three months. Appellant No.1 did not pay the price of half portion

of the land, and continued in possession of the entire plot. On the

evening of 19th April, 1991, the deceased attempted to plough the

said plot which was in possession of appellant No.1, but the

appellant No.1 protested, which compelled the deceased to stop

ploughing that land. After this incident the deceased went away.

However, at about 6.00 a.m. on 20th April, 1991, the deceased

along with PWs. 1, 2, 3 and Sikamani again went to plough the

land and commenced agricultural operations. PWs 2 and 3 were

the daughters of the deceased while Sikamani (not examined) was

his son. PW 1 is the husband of PW 2. When Sikamani was

ploughing the land, PW 1 stood on the ridge and PWs 2 and 3 were

manuring the land. On coming to know of this the appellants and

accused 5 and 6 (since acquitted), came and protested against the

ploughing of the land which was in possession of the appellants.

The prosecution allegation is that appellants No.1 to 4 had carried

spade, crowbar, knife etc. while accused 5 and 6 came unarmed.

Appellant No.1 prevented the deceased from ploughing the land

even though the deceased offered to pay the price of the land. The

case of the prosecution is that thereafter appellant Nos.1 to 4

assaulted the deceased with their weapons while accused 5 and 6

gave him blows with their fists. When PWs 1, 2, 3 and Sikamani

intervened to save the deceased they were also assaulted.

Sikamani was assaulted by appellant No.1 and accused Nos. 5 and

6. PW 2 was similarly assaulted by appellant Nos.1, 3 and 4 while

appellants No.5 and 6 gave her fist blows. PW 3 was assaulted by

appellants 1, 2 and 3 while PW 1 was assaulted by all the

appellants and accused 5 and 6 since acquitted. As a result of the

assault PWs 1, 2, 3 as well as Jayavelu (deceased) suffered

bleeding injuries and fell down. PW 6, daughter of the deceased,

who was a little away from the place of occurrence saw the

accused running away with their respective weapons, and also saw

the injured lying in the field with bleeding injuries. She, with the

help of PW 4 and one other person, removed the injured to the

Government hospital at Vellore.

The injured were examined at the Government hospital,

Vellore by the Medical Officer, PW-12. He examined the

deceased at about 9.15 a.m. and his report is Ex.P 13. PWs 1, 2

and 3 were also examined by him and their injury reports are Exs.

P 22, P 17 and P 19 respectively. It is not disputed that Jayavelu

died shortly after his admission. Upon his death, death intimation

Ex. P 15 was sent to the police out-post and Sub-Inspector, PW 17

was accordingly informed who came to the hospital and recorded

the statement of PW 1 (Ex.P 1), on the basis of which a formal FIR

was drawn up as Ex.P 2 registering Crime No. 76/91.

It also appears that PW 17, the Sub-Inspector found accused

No.2 in the same hospital, undergoing treatment. Appellant No.2

also got his complaint recorded by PW 17 and the same was

registered as Crime No.77/91 for offences punishable under

Sections 147 and 323 I.P.C.. PW 18, the Inspector of Police took

up the investigation of the case and prepared the inquest report.

The doctor, PW 13 performed the post mortem examination on the

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dead body of Jayavelu and the post mortem report is marked as Ex.

P 24.

On 21.4.1991 at about 3.00 a.m. appellants No.3 and 4 and

accused No. 5 and 6 (since acquitted) were arrested and it is stated

that recoveries were made on the basis of the voluntary statements

made by appellant No.3 and appellant No.4. It is the case of the

prosecution that appellant No.1 on 25.4.1991 at about 10.00 a.m.

made an extra judicial confession before PW 9, (Ex. P 11) and later

at about 12 noon PW 9 produced him before the police. It is also

not disputed that accused No.2 was sent on judicial remand from

the hospital itself where he was being treated.

In the course of the investigation the objects recovered on

the basis of the statements made by the accused as well as the

prosecution witnesses were sent for chemical examination. It

appears that the objects recovered at the instance of PW 1 and

Sikamani were stained with human blood of "O" group. Similarly,

the objects recovered at the instance of PW 3 had human blood of

"B" group and those recovered at the instance of PW 2 had human

blood of "O" group.

At the trial, appellant No.1 in his examination under Section

313 Cr.P.C. stated that the land in dispute had been in occupation

and enjoyment of his family for the last 50 years. On coming to

know that the deceased had purchased the land in question he had

filed a Civil Suit being OS No.968/84 before the Court of Munsif

at Vellore against deceased. An order of injunction was obtained,

protecting his possession. So far as the Panchayat is concerned the

case of appellant No.1 was that Jayavelu did not execute the sale

deed even though the appellant No.1 had procured non-judicial

stamp papers etc. However, Jayavelu (deceased) attempted to

cause damage not only to the lands but also the remaining crops.

Upon protest by him Jayavelu (deceased) assaulted appellants

No.2 to 4. Similar is the stand of appellants No.2 to 4.

The prosecution examined several witnesses to prove its

case and the trial court accepting the evidence of PWs 1, 2 and 3

found the appellants guilty of having caused the death of Jayavelu

and having assaulted prosecution witnesses 1, 2 and 3.

Accordingly, it convicted and sentenced them to various terms of

imprisonment as earlier noticed.

It was urged before the High Court, as it has been urged

before us, that it was the prosecution party which was the

aggressor and which sought to dispossess the appellants of the

lands of which they were in possession as cultivating tenants for

over 50 years. On the previous evening the prosecution party had

attempted to dispossess them, but on their protest they went away.

On the day of the incident they again attempted to dispossess the

appellants by ploughing the land in question upon which the

appellants protested. This provoked the prosecution party to

assault the appellants to whom injuries were caused on vital parts

of their body. Apprehending danger to their life the appellants

defended themselves with whatever they had in their hands in

exercise of their right of private defence of person and property.

There was no question of criminal trespass, since the land in

question was in possession of the appellants and in fact it was the

prosecution party which had trespassed upon their land. Moreover,

the prosecution was guilty of suppressing material facts of the

case. It has failed to explain the injuries suffered by three of the

appellants on vital parts of their body, and sought to give an

impression to the Court that only the appellants had assaulted

them, and that they had not caused injuries to anyone. In fact the

manner of occurrence disclosed by the prosecution was a distorted

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version calculated to support the fake case of the prosecution. It

was therefore submitted that the appellants are entitled to acquittal.

The High Court at the threshold noticed the fact that

Sikamani who is said to be an eye witness and was also injured in

the incident, was not examined as a witness. The High Court,

therefore, set aside the conviction of the appellants No.1 and 4

under Section 324 I.P.C. so for as it related to the assault by them

on Sikamani.

The High Court noticed that PWs 1 and 2 had one grievous

injury each but the injury suffered by PW 3 was only a simple

injury. However, it was convinced that the appellants had caused

injuries to PW 1 to 3 who had deposed consistently on this aspect

of the prosecution case. It therefore sustained their convictions

and sentences under Sections 324 and 326 I.P.C.

The High court, however, found that the charge under

Section 447 I.P.C namely, criminal trespass, had not been proved.

On the contrary, the High Court found that the appellants were in

cultivating possession of land as tenants for a long period. There

was also a civil litigation between the parties and the appellants

had in their favour an order of injunction. The documents

produced by the appellants established beyond doubt that till the

year 1985 they were certainly in possession of the land in question

as cultivating tenants. In view of these findings, the High Court

acquitted the appellants of the charge under Section 447 I.P.C.

since the prosecution failed to establish that Jayavelu (deceased)

was in possession of any part of the land purchased by him.

Regarding the charge under Section 302 and 302/34 I.P.C,

the High Court held that appellant No.1 was in possession of the

entire extent of land purchased by Jayavelu from Murugesa

Mudaliar and Savithri. On the day prior to the date of occurrence

the deceased had attempted to plough the land in question which

was successfully prevented by the appellants. The decision of the

Panchayat was not acted upon by appellant No.1 and the evidence

on record disclosed that both parties blamed each other for not

executing the sale deed. There was no evidence to show that the

land measuring 1.83 acres was ever divided by metes and bounds

and any portion allotted to the deceased. The appellants were

therefore in possession of the entire plot of land measuring 1.83

acres. After retreating on the first day on protest being raised by

the appellants, the deceased again attempted to take possession on

the morning of 20th April, 1991. He went to the land in question

along with PWs 1 to 3 and started agricultural operations. The

appellants protested against the ploughing of their land by the

members of the prosecution party. It was in this background that

the occurrence took place in which members of both prosecution

and the defence party, were injured.

On a consideration of the evidence on record the High Court

has recorded a categorical finding that the accused were trying to

defend possession of their property when the occurrence took

place. It also found that the appellants No.2 to 4 sustained injuries

as was evident from the injury reports prepared by PW 12.

Appellant No.3 had suffered a lacerated injury on the right parietal

region and a contusion on his left leg. Similarly, appellant No.2

had suffered a lacerated injury on the left frontal region. Appellant

No.4 had suffered an injury on his right rib back.

The High Court also found that the prosecution had failed to

explain the injuries found on appellants No.2 and 4. Not only this

the Sub-Inspector , PW 17, who registered the complaint made by

appellant No.2 on the same day on which the complaint of PW 1

was registered, did not even get the complaint marked as an

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Exhibit before the Court of Sessions. The High Court adversely

commented on the fairness of the investigation done by PW 18. It

observed that he would have done better by placing the entire

records relating to the investigation before the Court. The High

Court, therefore, observed that the investigating agency was guilty

of withholding material records which if placed before the Court

may tilt the scale in favour of the accused, and therefore an adverse

inference could be drawn against the State for withholding material

records.

It is not necessary for us to say anything further on this

aspect of the matter. The fact remains that appellant No.2 was

being treated in the Government hospital at Vellore at the same

time when the injured prosecution witnesses were admitted in the

hospital. PW 17 recorded the statement of PW 1 and thereafter

recorded the statement of appellant No.2. These facts leave no

room for doubt that the members of the prosecution as well as the

defence party were injured in the course of the same incident.

However, the prosecution witnesses denied any knowledge about

the circumstances in which appellants No.2 to 4 sustained injuries.

The case made out by the prosecution witnesses is that the

appellants assaulted them and there is not even a whisper as to

whether they had acted in retaliation. On these facts, the High

Court held that the requirements of Exceptions 2 and 4 were

established. The High Court then concluded that though the

appellants are entitled to the benefit of Exception 2, but the

materials available on record made it clear that they acted in excess

of their right of self-defence. Therefore, their acts fell within the

parameters of Section 304 I.P.C.

Accordingly, the High Court set aside the conviction of the

appellants herein under Section 302 and 302/34 I.P.C. but instead

found them guilty of the offence punishable under Section 304 Part

1 read with Section 34 I.P.C. The High Court took the view that

on the material placed on record it was apparent that a common

intention arose at the spur of the moment among the four

appellants and in furtherance of that common intention, the

deceased and the witnesses came to be attacked. Considering the

fact that appellant No.1 was 70 years old in the year 1992, the

High Court sentenced him to undergo rigorous imprisonment for

three years under Section 304 Part 1 read with Section 34 I.P.C.

and further sentenced him to pay a fine of Rs.25,000/- and in

default to undergo 9 months rigorous imprisonment. Appellants 2

to 4 were also convicted for the offence under Section 304 Part 1

read with 34 I.P.C. and sentenced to undergo 7 years rigorous

imprisonment. It upheld the conviction recorded by the trial court

under Sections 324 and 326 I.P.C. but reduced the sentence to two

years rigorous imprisonment wherever the sentence was in excess

of two years. The sentences were directed to run concurrently.

We observe that the State has not preferred any appeal

against the acquittal of the appellants of the charge under Sections

302 and 302/34 IPC. The High Court on a finding that the

appellants had exceeded their right of private defence of property,

convicted and sentenced them under Section 304 Part I read with

Section 34 IPC. Counsel for the appellants rightly submitted that

the conviction of the appellants, in the facts of this case, under

Section 304 Part I read with Section 34 IPC is clearly illegal. The

High Court having found that the appellants acted in exercise of

their right of private defence, the conviction of all the appellants

with the aid of Section 34 was unwarranted. In our view the

submission has force and must be accepted.

It is well settled that once it is held that the accused had the

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right of private defence and reasonably apprehended that death or

grievous bodily hurt would be the consequence if the right of

private defence was not exercised, the right of private defence of

property extended under Section 103 IPC to voluntarily causing

the death of the aggressor subject to restrictions mentioned in

Section 99 IPC. In this case, if the appellants acted in exercise of

their right of private defence of property, it cannot be said that they

committed a criminal act in furtherance of a common intention,

because Section 96 IPC makes it abundantly clear that nothing is

an offence which is done in the exercise of the right of private

defence. They did not intend to commit any criminal act or to do

anything which may be described as unlawful. Their object was

not to kill the deceased but to protect their property. It may be,

that in a given case it may be found on the basis of material on

record that some of them may have exceeded their right of private

defence and for that they may be individually held responsible.

But it cannot be said that the murder was committed pursuant to a

common intention to commit such crime. In some what similar

circumstances in State of Bihar vs. Mathu Pandey and others :

SCR 1970 (1) 358 this Court considered the question as to whether

the accused could be convicted under Section 302 read with either

Section 149 or Section 34 IPC. It observed :-

"In order to attract the provisions of Section

149 the prosecution must establish that there was

an unlawful assembly and that the crime was

committed in prosecution of the common object of

the assembly. Under the fourth clause of Section

141 an assembly of five or more persons is an

unlawful assembly if the common object of its

members is to enforce any right or supposed right

by means of criminal force or show of criminal

force to any person. Section 141 must be read

with Sections 96 to 106 dealing with the right of

private defence. Under Section 96 nothing is an

offence which is done in the exercise of the right

of private defence. The assertion of a right of

private defence within the limits prescribed by law

cannot fall within the expression "to enforce any

right or supposed right" in the fourth clause of

Section 141."

It, therefore, follows that intention of the appellants was not

to cause the death of Jayavelu but they had acted in exercise of

their right of private defence. While acting in exercise of right of

private defence, the appellants cannot be said to be motivated

by a common intention to commit a criminal act. Common

intention has relevance only to the offence and not to the right of

private defence.

The question still arises whether the appellants can be

convicted for having exceeded their right of private defence. In the

instant case we are inclined to hold that the appellants had initially

acted in exercise of their right of private defence of property, and

later in exercise of right of private defence of person. It has been

found that three of the appellants were also injured in the same

incident. Two of the appellants, namely appellants 2 and 3 had

injuries on their head, a vital part of the body. Luckily the injuries

did not prove to be fatal because if inflicted with more force, it

may have resulted in the fracture of the skull and proved fatal.

What is, however, apparent is the fact that the assault on them was

not directed on non vital parts of the body, but directed on a vital

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part of the body such as the head. In these circumstances it is

reasonable to infer that the appellants entertained a reasonable

apprehension that death or grievous injury may be the consequence

of such assault. Their right of private defence, therefore, extended

to the voluntarily causing of the death of the assailants.

While it is true that in exercise of the right of private

defence only such force may be used as may be necessary, but it is

equally well settled that at a time when a person is faced with

imminent peril of life and limb of himself or other, he is not

expected to weigh in golden scales the precise force needed to

repel the danger. Even if he, in the heat of the moment, carries his

defence a little further than what would be necessary when

calculated with precision and exactitude by a calm and unruflled

mind, the law makes due allowance for it. (See Mohd. Ramzani

vs. State of Delhi : 1980 Suppl. SCC 215).

Mr. Balakrishnan, Senior Advocate appearing for the State,

sought to support the conviction of the appellants contending that

the members of the prosecution party had already trespassed on the

plot of land in question and, therefore, trespass was complete. The

appellants, therefore, could not be said to be in possession of the

plot in question. Having regard to the facts of this case the

submission must be rejected. It was held in Munshi Ram and

others vs. Delhi Administration : AIR 1968 SC 702 thus :

" 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."

The same principle was reiterated in Puran Singh and others

vs. The State of Punjab : (1975) 4 SCC 518.

In the instant case the facts found by the High Court are that

the appellants were in possession of the plot in question for over 50

years. On the previous evening the prosecution party had

attempted to dispossess the appellants but on the protest of the

appellants they gave up their plan and retreated. On the following

morning they again attempted to take possession of the land by

plouging the same and exercising right of ownership. It was at this

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stage that the appellants appeared on the scene and protested,

which ultimately resulted in an assault on them by the members of

the prosecution party. In these facts, having regard to the principle

aforesaid, it cannot be contended that the members of the

prosecution party were in possession of the land in question or that

the appellants had no right to evict the trespassers and to assert

their right to possess the land. Certainly the prosecution party was

not in "settled possession".

Mr. Balakrishnan then submitted that it is not clear as to

who started the assault. The prosecution chose to suppress the

genesis and the origin of the occurrence and presented a distorted

version before the court. The prosecution feigned ignorance about

the injuries suffered by the appellants. It is well settled that the

onus which rests on the accused person under Section 105

Evidence Act to establish his plea of private defence is not as

onerous as the unshifting burden which lies on the prosecution to

establish every ingredient of the offence with which the accused is

charged, beyond reasonable doubt. In the instant case though the

appellants had suffered injuries on vital parts of the body, even

though simple, the prosecution failed to give any explanation for

such injuries. We are not persuaded to accept the submission of

learned counsel for the State that the injuries being simple, the

prosecution was not obliged to give any explanation for the same.

Having regard to the facts of the case the omission on the part of

the prosecution to explain the injuries on the person of the accused

may give rise to the inference that the prosecution is guilty of

suppressing the genesis and the origin of the occurrence and had

thus not presented the true version. It may well be that the

prosecution witnesses were lying on a material point and,

therefore, render themselves unreliable, or it may be that the

defence version explaining the injuries on the person of the

accused is probably the true version of the occurrence which

certainly throw a serious doubt on the prosecution case. In these

circumstances and having regard to the findings recorded by the

High Court we are satisfied that the appellants were fully justified

in defending their possession as well as their person, having regard

to the fact that they were assaulted by the members of the

prosecution party who were the aggressors and who had trespassed

upon the land which had been in continuous possession of the

appellants for over 50 years. They had not exceeded their right of

private defence of property and person because the facts and

circumstances justify their entertaining a reasonable apprehension

that grievous hurt may be caused to them, if not death, by the

assailants.

It was then submitted by Mr. Balakrishnan that the

appellants could have taken recourse to move the authorities, in the

facts and circumstances of the case. His submission is that they

did not at all have the right of private defence. This submission

must be rejected in view of the clear finding recorded by the High

Court that the appellants had acted in exercise of their right of

private defence, but exceeded that right. Unfortunately the High

Court did not consider which of the appellants, if any, exceeded

the right of private defence. Moreover the right of private defence

must be liberally construed. It was observed in Munshi Ram vs.

Delhi Administration (supra) :

".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.

The right of private defence serves a social

purpose and that right should be liberally

construed. Such a right not only will be a

restraining influence on bad characters but it will

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encourage the right spirit in a free citizen. There is

nothing more degrading to the human spirit than to

run away in the face of peril."

We have earlier held that their conviction with the aid of

Section 34 IPC is not warranted in law. In the absence of any

finding by the High Court as to which of the appellants had

exceeded his right of private defence, the benefit must go to all.

Once it is held that the appellants did not exceed their right

of private defence, it must logically follow that they cannot be

convicted of the lesser offences under Sections 324 and 326 IPC,

because in the same transaction and in exercise of their right of

private defence they had caused injuries to some of the prosecution

witnesses.

In the result this appeal is allowed and the appellants are

acquitted of all the charges levelled against them. The appellants

shall be released forthwith unless required in any other matter.