Puran Singh & Ors Vs. State of
Punjab [1975] INSC 107 (25 April 1975)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
UNTWALIA, N.L.
CITATION: 1975 AIR 1674 1975 SCR 299 1975 SCC
(4) 518
CITATOR INFO:
R 1976 SC2263 (11) F 1977 SC 619 (4) E 1990
SC1459 (36)
ACT:
Penal Code-S. 99 to 102-Private defence when
can be exercised-"Settled possession" meaning of.
HEADNOTE:
All the appellants were convicted by the
Sessions Judge under s. 302 read with s. 149 I.P.C. and s. 326 read with 149
I.P.C. and sentenced to life imprisonment. The High Court affirmed the
conviction and sentence.
In a dispute over land between the party of
the appellants and the complainant, the appellants alleged that they had
redeemed the mortgage in respect of the land and thereafter the mortgagee had
himself delivered possession of the land and that they had grown wheat crop in
it. The complainant, to whom the mortgagee sold his mortgage rights, tried to
take its possession forcibly. It was alleged that on the day of the occurrence
the complainant and his party, armed with deadly weapons, entered the disputed
land and tried to destroy the wheat crop. In the scuffle that ensued two
persons of the complainant's party died and some persons on both sides were
injured. On the question of possession of the land the High Court gave a
finding in favour of the appellants but on its own interpretation of the
decision of this Court in Munshi Ram and Others v. Delhi Administration held
that the appellants who were not in settled possession of the land, were rank
trespassers and secondly that, instead of indulging in a free fight with the
opposite party, the appellants could have taken recourse to the public
authorities, Since the appellants had exceeded the limitations provided in s.
99 to 102 I.P.C. they could not claim any right of private defence.
Allowing the appeal,
HELD : (1) It is difficult to lay down any
hard and fast rule as to when the possession of a trespasser can mature into
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. 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 nature of possession in such cases which may entitle a
trespasser to exercise the right of private defence of property and person
should contain the following attributes : (1) that the trespasser must be in
actual physical possession of the property over a sufficiently long period;
(ii) that the possession must be within the knowledge either express or
implied, of the owner or- without any attempt at concealment and which contains
an element of animus possendie. The nature of possession of the trespasser
would however be a matter to be decided on facts and circumstances of each case
(iii) the process of dispossession of the true owner by the trespasser must be
complete and final and must be acquiesced in by the true owner; (iv) that one
of the usual tests to determine the quality of settled possession, in the case
of culturable land, would be whether or not the trespasser, after having taken
possession, had grown any crop. If the crop had been grown by the trespasser.
then even the true owner has no right to destroy the crop grown by the
trespasser and take forcible possession. In such a case the trespasser will
have 300 a right of private defence and the true owner will have no right of
private defence. [307E-H, 308A-D] it is manifest that the finding of the High
Court on the facts of the present case that the appellants were not in settled
possession of the land is legally erroneous and cannot be allowed to stand. The
ratio of the judgment of this Court in Munshi Ram's case his not been correctly
applied by the High Court. [310-C-D] Munshi Ram and others v. Delhi
Administration, [1968] 2 S.C.R. 455 explained and followed.
Horam and others v. Rex, A.I.R. 1949 All.
564, 567 Sangappa and others v. State, I.L. R. [1955] Hyd. 406, In re : Mooka
Nadar, and others A.I.R. [1943] Mad. 590, Hazara Singh and others v. The State,
A.I.R. 1959 Punjab 570.Bhartu v.
State. A.I.R. 1954 All. 35=(1954) Cr. I.J. 54
Phula Singh v. Emperor A.I.R. 1927 Lah. 705=28 Crl. L.J. 848, referred to.
(2)The appellants were protected by the right
of private defence of their property and person and the prosecution case
against the appellants, which has not been proved beyond reasonable doubt must
fail. It is not the law that a person when called upon to face in assault must
run away to the police station and not protect himself or when his property has
been the subject matter of trespass and mischief he should allow the aggressor
to take possession of the property while he should run to the public
authorities.
Where there is an attribute of invasion or
aggression on the property by a person who has no right to possession then
there is obviously no room to have recourse to the public authorities and the
accused has an undoubted right to resist the attack and use even force if
necessary. The right of private defence of property or person, where there is
real apprehension that the aggressor might cause death or grievous hurt to the
victim, could extend to the causing of death also and it is not necessary that
death or grievous hurt should actually be caused before the right could be
exercised. A mere reasonable apprehension is enough to put the right of private
defence into operation.
[311-B-D] Jai Dev, v. The State of Punjab
[1963] 3 S.C.R. 489 and Amjad Khan v. The State, [1952] S.C.R. 567, followed.
In the present case it could not be said that
the appellants had exceeded the right of private defence. The appellants were
undoubtedly in possession of the laid and had grown wheat crop and the
prosecution party had tried to destroy the wheat crop. The appellants were entitled
to resist the invasion of their right by the prosecution party. Again it cannot
be said that the apPellants had in any event exceeded their right of private
defence. As the prosecution bad deliberately suppressed the very material part
of the origin of the occurrence it is not known how the occurrence started.
Secondly when two persons on the side of the accused were injured by gun fire
it was not possible for them to weigh their blows in golden scales in order to
assault the prosecution party. After two members of their party had received gunshot
injuries the appellants would have undoubtedly it reasonable, apprehension that
either death or grievous hurt could be caused to the members of their party or
one of them. This being the position they were fully justified in causing the
death of the deceased Persons in 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 content that the appellants could have waited
until one of their party members would have die or received serious injuries
before acting on the spur of moment, nor could one expect a person who is
attacked by an aggressor to modulate his blows in accordance with the injuries
he received.
[312E-H, 313G-H, 314ABC] State of Gujarat V.
Sai Fatima & Anr. [1975] 3 S.C.R. 993, followed.
301
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 266 of 1971.
Appeal by special leave from the judgment and
order dated the 10th February, 1971 of the Punjab and Haryana High Court in
Criminal Appeal No. 1034 of 1969.
R. K. Garg, S. C. Agarwala and V. J. Francis,
for the appellants.
O. P. Sharma and M. S. Dhillon, for
respondent, The Judgment of the Court was delivered by FAZAL ALI, J.-The
appellants Puran Singh, Piara Singh, Bakshish Singh, Bohar Singh and Balkar
Singh have been convicted under S. 302/149 I.P.C. and sentenced to life
imprisonment and a fine of Rs. 200 each and in default six months rigorous
imprisonment and under ss. 326/149 I.P.C. to one year rigorous imprisonment and
under s. 148 I.P.C. to one year simple imprisonment. The learned Sessions Judge
who tried the present case has also convicted one Pargat Singh the brother of
Baksbish Singh and son of Charan Singh but this ,accused has been acquitted by
the High Court of Punjab and Haryana hereinafter referred to as 'the High
Court'. The High Court, has, however, affirmed the conviction and sentences of
the five appellants and dismissed the appeal filed by the appellants before
it-hence this appeal to this Court by special leave.
It is not necessary for us to detail the
facts of this case, because the decision of the matter lies within a very
narrow compass. Mr. R. K. Garg appearing for the appellants has raised a few
questions of law and according to his submissions the appeal should succeed on
the question of law on the basis of the findings given by the High Court. The
unfortunate incident in the present case which led to the loss of two valuable
lives appears to be the result of chronic land dispute between the parties and
a competitive race for taking possession of the land by the prosecution or the
accused. The story opens with a usufructuary mortgage which was executed by
Hari Singh the original owner in respect of 29 Kanals 14 Murlas of land in
favour of the appellants Puran Singh and Piara Singh and one Nishan Singh for a
sum of Rs. 3000/-. Soon thereafter the mortgagees sold their montage rights to
Makhan Singh father of Dilbagh Singh of the prosecution party. On July 28, 1966
the appellants Puran Singh and Piara Singh and one Smt. Chandra daughter of the
appellant Bakshish Singh purchased the equity of redemption in the said land
from Hari Singh for a sum of Rs. 20,000 and undertook to liquidate the mortgage
debt. According to the defence the mortgage debt was actually discharged on May
30, 1967 and a few months later mutation was sanctioned in favour of the
accused on July 13, 1967. Having, however, failed to take possession of the
mortgage property after having redeemed the mortgage, the purchasers of the
equity of redemption, namely, the party of the appellants filed a suit for
possession against Dilbagh Singh in the Court of the Subordinate Judge,
Hoshiarpur on October 4, 1967. One of the dates fixed in this suit was October
27, 1968 when, according to the prosecution, Puran Singh, Piara Singh, 302
Bakshish Singh, Pargat Singh and Chandra Singh entered the land in dispute and
demolished the kothas of the complainant. A complaint was filed by Dilbagh
Singh on October 30, 1968 against the accused and Ajmer Singh Sub- Inspector of
Police alleging that the accused had entered the land and demolished the kothas
belonging to the comp- lainant with the active aid of the police. In this com-
plaint although the complainant did not admit in so many words that the accused
had taken forcible posses-,ion of the land and demolished the kothas, yet from
the facts and circumstances proved in this case there was no doubt that it was
a fact that the complainant in spite of his best attempts was dispossessed by
the party of the accused.
While the complaint was being enquired into,
the suit filed by Puran Singh and others was dismissed on November 21, 1968 on
the ground that the suit was not maintainable and the plaint was returned to
the plaintiffs for presentation to the proper authorities, namely, Revenue
Courts. Emboldened by this success in a civil suit, it appears that the
complainant Dilbagh Singh along with Sohan Singh Bachan Singh, Sulakhan Singh,
Baj Singh and others went to the field in question and started ploughing it and
sowing Sarson. We might mention here that the definite case of the accused has
been that after taking possession of the land in question from the complainant
the appellants bad grown wheat in the land and on the date of occurrence the
complainant party tried to destroy the crop which led to mutual fight between
the accused and the complainant party resulting in the death of the two
deceased persons of the prosecution party and according to the defence injuries
on Mohan Singh and Bohar Singh who were on the side of the accused.
According to the prosecution while the
prosecution party was busy ploughing the land and sowing Sarson crop in the
field all the appellants variously armed with gun, barchhas, kirpans, gandasis
and axes entered upon the land and Pargat Singh fired his gun as a result of
which Dilbagh Singh and Bachan Singh fled away leaving the two deceased persons
and Sohan Singh behind. Thereafter the accused Puran Singh and Piara Singh
surrounded Sulakhan Singh and inflicted various injuries. on his body with
kirpans, while Bakshish Singh gave spear blows in the thigh and abdomen of
Sulakhan Singh The appellants Balkar Singh, Puran Singh and Piara Singh
inflicted with their respective weapons blows on Baj Singh, Soban Singh P. W. 9
who tried to rescue his brother was also assaulted by Balkar Singh, Bohar Singh
and Bakshish Singh.
Puran Singh and Piara Singh are also alleged
to have assaulted Sohan Singh with their weapons. The victims then fell down on
the ground and then the accused made good their escape. The three injured
persons were removed to the civil hospital at Hoshiarpur but Sulakhan Singh
succumbed to his injuries on the way while Baj Singh and Sohan Singh were
admitted in the hospital. The F.I.R. was lodged on November 27, 1968 by Baj
Singh one of the injured persons on the basis of which the present case started
and after usual investigation a charge-sheet was submitted against the accused
which resulted in their ultimate conviction and sentences as mentioned above.
303 The defence of the appellants was that
they had redeemed the mortgage debt and thereafter the mortgagee had himself
delivered possession of the land to the appellants some time in 1968, and since
then the appellants were in peaceful possession of the land and had grown wheat
crop therein.
Dilbagh Singh being dissatisfied with his
having to part with the possession of the property filed a false complaint
against the appellants and thereafter tried to take forcible possession of the
land from the appellants with the show of force. According to the defence, the
prosecution party was also armed with gun, axe, kirpans and other deadly
weapons and the accused tried to resist their being dispossessed and assaulted
the prosecution party purely in the exercise of their right of private defence
of person and property.
According to the &fence two persons on
their side were injured one of them Mohan Singh had received gun-shot injury,
whereas Bohar Singh had also received gun-shot injuries. The High Court after
discussing the evidence appear to have given a finding in favour of the accused
so far as the question of possession of the land is concerned, but in view of
the decision of this Court in Munshi Ram and Others v. Delhi Administration,(1)
on its own interpreta- tion, held that as the appellants were not in settled
possession of the land and were rank trespassers they could not have any right
of private defence.
Appearing for the appellants Mr. Garg
submitted that the High Court had,taken an erroneous view of the law and had
misinterpreted the judgment of this Court in Munshi Ram's case (supra). Before,
however, coming to the judgment we would like to extract the findings of fact
arrived at by the High Court on the question of possession which forms the
basis of the right of private defence claimed by the accused. In this
connection the High Court found as follows:
"Certain admissions wrong out from the
prosecution witness in cross-examination, however, do show that about one month
or so prior to the occurrence, the vendee-appellants had somehow entered upon
the disputed land and taken its physical possession, and had possibly sown
wheat crop in it......................
After some prevarication, witness admitted
that on the day of occurrence Dilbagh Singh had told him that they should go
and plough the field and take its possession. Witness thereupon took the
kulhari from the house of Dilbagh Singh and proceeded to the place of
occurrence with the deceased persons. Sohan Singh does not say a word that they
had sowed or were sowing wheat crop at the time of occurrence in this field. He
stated that at about 5 P.M. they were busy sowing sarson in the
field...............
Dilbagh Singh, P.W. 12, in examination-in-
chief stated that about one month before the occurrence, all the accused,
excepting Bohar Singh and Balkar Singh, had demolished his kothas in the
disputed field with the help of the Police...
(1) [1968] 2 SCR 455.
304 Though in this complaint it is not
specifically alleged that Puran Singh, Piara Singh etc., had taken forcible
possession of the land, yet the same read with the admission made by P. W.
Sohan Singh already referred to above, shows that Dilbagh Singh had been ousted
from possession of the land on the 27th October, 1968, and thereafter the
appellants continued in its actual possession till the occurrence took
place................... In Rabi 1968, as has been deposed to by Patwari Behari
Lal, P.W.
14, wheat crop was standing in the disputed
khasra 17/9 when he inspected the harvest at the spot in April 7, 1969.
In the visual site-plan, Exhibit PZ, which,
according to A.S.I. Kartar Singh, was prepared by him on November 27, 1968, it
is mentioned that the field was under wheat cultivation.
It is unfortunate that no quest-on was put to
the A.S.I. in cross-examination to show as to what was the size of the wheat
crop.
...................................................
If at the time of occurrence, sprouted wheat
crop was in the field and if, as has been deposed to by P.W. Sohan Singh, the
complainant party had gone there armed to take back the possession from the
accused party, this wheat crop might have been sown by the vendee-appellants
some days prior to the occurrence. Though the facts elicited in the
cross-examination of the prosecution witnesses or otherwise brought on record
fall short of positive proof of this wheat crop having been sown by Piara Singh
and Puran Singh appellants, yet the possibility of that being a fact cannot be
ruled out.
Thus, even if the view most favourable to the
accused, of the evidence on record is taken, then also the possession of the
appellants, which commenced about one month prior to the occurrence, was little
better than that of a trespasser. It is now settled law that even a person
rightfully entitled to immediate actual possession has no right to oust a
trespasser by force if that trespasser is in settled possession of the land.
Such a trespasser in established possession is entitled-unless he is rejected
in due course of law-to defend his possession even against the rightful tenure-
bolder or owner. This is what was laid down by their Lordships of the Supreme
Court in Munshi Ram v. Delhi Administration A.I.R. 1968 S.C. 702." From
these findings of the High Court, which are based on the admissions of some of
the prosecution witnesses and are corroborated by the circumstances proved by
the prosecution, it is quite clear that the party of the appellants had
undoubtedly taken possession of the land in dispute to the knowledge of the
complainant Dilbagh Singh at least a month before the occurrence and had sown
wheat crop on the land in question. In fact this finding is based on very
cogent 305 material because it would appear that P.W. Sohan Singh one of the
eye witness clearly stated in his evidence that about a month before the
occurrence Puran Singh and Piara Singh took possession of the land with the
help of the police.
This witness further admitted as follows :
"Dilbagh Singh did tell me that we
should go and plough the field and take its possession.
I had taken the Kulhari from the house of
Dilbagh Singh in the field." He further admitted in his evidence that
after the kothas were demolished, Dilbagh Singh used to live in the village.
This also corroborates the fact that the
complainant's party was dispossessed on October 27, 1968, when the accused bad
taken forcible possession of the land and since then the complainant Dilbagh
Singh had started living with Sohan Singh in the village.
Similarly another eye witness P. W. 10 Jagtar
Singh admitted that lie did state to the police that the appellant Puran Singh
had taken forcible possession of the land about one month earlier.
P.W. 12 Dilbagh Singh, the complainant
himself deposed that he had stated before the police that they had sown Sarson
as well as wheat in the field and when he was confronted with his previous
statement before the police where he had mentioned the fact that he and his
companions had ploughed the field and were preparing the furrows or sowing
Sarson.
The witness further admitted in his evidence
that most of the crop was, however, wheat.
P.W. 14 Behari Lal, Patwari, has stated that
he effected the Girdawri on April 7, 1969 and found wheat crop standing in
Khasra No. 16/2 and 16/9 which was shown to be in possession of Puran Singh.
The evidence of this witness fully corroborates the evidence of the prosecution
witnesses that the accused party had dispossessed the complainant from the land
in dispute as far back as October 27, 1968 which led to the filing of the
complaint by Dilbagh Singh and thereafter it was the accused party and not the
prosecution party which had sown wheat crop on the land.
Finally, even in the F.I.R. it appears that
the informant had admitted in categorical terms that the accused Piara Singh
and Puran Singh had taken forcible possession of the land. This statement runs
thus :
"Dilbagh Singh had been in possession of
this land, but some days after the Dewali, Piara Singh and Puran Singh took
forcible possession of this land. Now, some days ago, both the above mentioned
cases were decided in favour of Dilbagh Singh. So, yesterday the 26th November,
1968 at about 4 P.M., Dilbagh Singh along with his brother Gurbachan Singh
having taken myself (Baj Singh) and both of my brothers Sulakhan Singh and
Soban Singh with him, ploughed this land." 306 On a consideration of the
admissions of the prosecution witnesses and the findings arrived at by the High
Court, the following propositions of fact emerge:
(1)That although the accused had purchased
the equity of redemption, yet there is no reliable evidence to show that they
had paid off the mortgage debt and taken possession from the mortgagee in spite
of the fact that mutation was sanctioned in favour of the appellants in 1967.
The High Court has rightly pointed out that if the appellants party had taken
possession as far back as in 1967 there would be no occasion for them to file a
civil suit for possession on October 4, 1967 against the mortgagee, Dilbagh
Singh and others;
(2)That on October 27, 1968 the appellants
undoubtedly entered the field and took forcible possession of the land from the
complainants who were unable to resist the entry of the accused as a result of
which Dilbagh Singh filed a complaint on October 30, 1968. It is not necessary
for us to say anything regarding the allegation about demo- lishing of the
Kothas;
(3)The complainant knew fully well that he
had been dispossessed by the appellants at least a month before the occurrence
and that the appellants bad sown wheat crop and in spite of his knowledge he
deliberately went there with the avowed object of taking forcible possession
from the appellants;
(4)That on the date of occurrence the
prosecution party undoubtedly went to the field armed with the gun and axe. It
would appear from the injuries on Bohar Singh and Mohan Singh on the side of
the accused that the present occurrence took place as a result of mutual fight
over the land; and (5)that although the defence has proved beyond reasonable
doubt that both Mohan Singh and Bohar Singh bad received injuries on their
person, the prosecution has given no explanation for the same.
The question that' arises for consideration
is whether in view of these findings of fact it can be said that the accusedhad
no right of private defence or that the prosecution party in entering upon the
land was protected by the right of private defence of property.
This brings us to the consideration of the
decision of this Court--Munshi Ram and Others v. Delhi Administration(1) on
which great reliance has been placed by the High Court, where this Court
observed as follows:
"It is true that no one including the
true owner has a right to dispossess the trespasser by force if the trespasser
(1)[1968] 2 S.C.R. 455.
307 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." In this case there was a concurrent finding of fact that
Jamuna was in effective possession of the field on the date of occurrence and
the prosecution had alleged that P.Ws 17 and I had taken possession of the
property but the finding of the Court was that P.Ws 17 and 19 had not been put
in possession by virtue of the delivery of possession given by the Court. It
was against this context that the observations referred to above were made.
This Court clearly pointed out that where a trespasser was in settled
possession of the land he is not entitled to be evicted except in due course of
law and be is further entitled to resist or defend his possession even against
the rightful owner who tries to dispossess him. The only condition laid down by
this Court was that the possession of the trespasser must be settled
possession. The Court explained that the settled possession must be extended
over a sufficiently long period and acquiesced in by the true owner. This
particular expression has persuaded the High Court to hold that since the possession
of the appellants party in this case was only a month old, it cannot be deemed
to be a settled possession. We, however, think that this is not what this Court
meant in defining the nature of the settled possession. 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 word '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 &fend his property
against attack even by the true owner. Similarly an occupation of the property
by a person as an agent or a servant at the instance of the owner will not
amount to actual physical possession. Thus in our opinion the nature of
possession in such cases which may entitle a trespasser 308 to exercise the
right of private defence of property and person should contain the following
attributes:
(i)that the trespasser must be in actual
physical possession of property over a sufficiently long period;
(ii)that the possession must be to the
knowledge either express or implied of the owner or without any attempt at
concealment and which contains an element of animus prossendie. The nature of
possession of the trespasser would however be a matter to be decided on facts
and circumstances of each case ;
(iii)the process of dispossession of the true
owner by the trespasser must be complete and final and must be acquiesced in by
the true owner; and' (iv)that one of the usual tests to determine the quality
of settled possession, in the case of culturable land, would be whether or not
the trespasser, after having taken possession, had grown any crop. If the crop
had been grown by the trespasser, then even the true owner has no right to
destroy the crop grown by the trespasser and take forcible possession, in which
case the trespasser will have a right of private defence and the true owner
will have no right of private defence.
These principles logically flow from a long
catena of cases decided by this Court as well as other High Courts some of
which have been referred to in the judgment of this Court in Munshi Ram's case
(supra).
In the case of Horam and others v. Rex(1)
which was relied upon by this Court in Munshi Ram's case (supra) a Division
Bench of the Allahabad High Court observed as follows:
"Where a trespasser enters upon the land
of another, the person in whom the right of possession is vested, while the
trespasser is in the process of acquiring possession, may turn the trespasser
out of the land by force and if in doing so he inflicts such injuries on the
trespasser as are warranted by the situation, he commits no offence. His action
would be covered by the principle of self- defence embodied in Ss. 96 to 105,
Penal Code.
If, on the other hand, the trespasser had
already accomplished or completed his pos- session and the person with the
right of possession has acquiesced in this accomplishment, it is not open to
the latter to avail himself of the doctrine of self- defence and by inflicting
injuries on the trespasser to reacquire possession of his land." It may be
noted that in this case the accused had remained in possession for ten days and
had shown the field and this was held to be sufficient possession to enable the
trespasser to resist the entry of the true owner, In fact this case appears to
be on all fours with (1)A.I. R. 1949 All. 564,567.
309 the facts of the present case where also
the appellants party after having taken possession of the land in dispute a
month before the occurrence had grown wheat crop on it and the complainant
party tried to re-enter the land and destroy the crop grown by the accused.
Another decision to which reference has been
made by this Court in Munshi Ram's case (supra) is Sangappa and other v.
State(1), where a Division Bench of the
Hyderabad High Court observed as follows:
"If somebody enters on his land during
his absence and he does not acquiesce in the.
trespass, he would still retain possession of
the land and as the possessor of the land, he is entitled to that
possession....................................
If a person acquiesces in his dispossession
and subsequently under claim of title comes again to dispossess his opponents
then he and his friends 'would be members of unlawful as- sembly." This
case also fully covers the facts of the present case which falls under the
second category laid down by the Court.
A similar view was taken in re. Mooka Nadar
and others where Horwill, J., observed as follows :
"It seems to be true that the party of
P.W.2 were on the field first on the morning on which this offence happened;
but that does not necessarily mean that they were then in possession of the
field. A person does not lose possession of the field by going home to have a
meal, or to sleep. If somebody enters on his land during his absence and he
does not acquiesce in the trespass, he would still retain possession of the
land; and as the possessor of the land he is entitled to defend that
possession............... If a person acquiesces in his dispossession and
subsequently under claim of title comes again to dispossess his opponents, then
he and his friends would be members of an unlawful assembly and guilty of
rioting." These were the cases referred to in the judgment of this Court
in Munshi Ram's case (supra) and it would appear from all these cases that the
case of the appellants is fully covered by these decisions. Apart from that in
the case of Hazara Singh and others v. The State(3) it was held that the
accused was protected by the right of private defence having cultivated and
sown Bajra in the field. In this connection, Chopra, J., observed as follows:
"When once Resham Singh had taken
possession of, cultivated and sown bajra in the field and had remained (1)
I.L.R. ((1955) 14yd. 406.
(2) A.I.R.943) Mad. 590.
(3) A.I.R. (1959) Punjab 570.
310 in possession of it for a couple of
months, Hazara Singh even though he was the owner was not entitled to take the
law into his own hands and use force in ousting the trespasser.
He had ample time to have recourse to the
protection of public authorities. He was himself liable for committing criminal
trespass and mischief by taking forcible possession of the land and uprooting
the crop and would. not therefore be entitled to the right of private defence
of property." The learned Judge relied on two judgments one of the
Allahabad High Court in Bhariu v. State(1) and the other of Lahore High Court
in Phula Singh v. Emperor(2).
In view of these decisions it is, therefore,
manifest that the finding of the High Court on the facts of the present case
that the appellants were not in settled possession of the land is legally
erroneous and cannot be allowed to stand. The ratio of the judgment of this
Court in Munshi Ram's case (supra) has not been correctly applied by the High
Court.
The second point that falls for determination
is as to what is the extent of right of private defence which the accused can
claim in this case? In this connection, the High Court has given a finding that
since the prosecution party had entered the land in possession of the accused
and were trying to plough it, the appellants should have taken recourse to the
public authorities instead of indulging in free fight with the prosecution. In
other words, the High Court found that the right of private defence available
to the accused was under the limitations provided for in Ss. 99 to 102 of the Indian
Penal Code and these limitations apply to the facts of the present case, and
the accused cannot claim any right of private defence. With respect we find
ourselves unable to agree with this somewhat broad statement of the law. It is
true that the right of private defence of person or property is to be exercised
tinder the following limitations:
(i)that if there is sufficient time for
recourse to the public authorities the right is not available;
(ii)that more harm than necessary should not
be caused;
(iii)that there must be a reasonable
apprehension of death or of grievous hurt to the person or damage to the
property concerned.
The first limitation obviously does not apply
to this case.
In the first place the accused after having
dispossessed the complainant to his knowledge were in conscious and peaceful
possession of the land and bad grown wheat crop therein.
The complainant had already filed a complaint
and thereafter it was not open to the (1) A.I.R. 1954 All. 35=1954 Cr. L.J. 54.
(2) A.I.R. 1927 Lah. 705=28 Cr. L.J. 848.
311 complainant to take the law in his own
hands and to try to disposses the accused by show of force. That the
complainant had entered the land in question along with other persons variously
armed with gandasis and a gun cannot be disputed, because this is the finding
of the Court which is supported by the injuries on the person of Mohan Singh
and Bohar Singh for which the prosecution has given no explanation whatsoever.
It is not the law that a person when called upon to face an assaultmust run
away to the police station and not protect himself or when his property has
been the subject-matter of trespass and mischief he should allow the aggressor
to take possession of the property while he should run to the public
authorities.
Where there is an attribute of invasion or
aggression on the property by a person who has no right to possession, then
there is obviously no room to have recourse to the public authorities and the
accused has the undoubted right to resist the attack and use even force if
necessary. The right of private defence of property or person, where there is
real apprehension that the aggressor might cause death or grievous hurt to the
victim, could extend to the causing of death also, and it is not necessary that
death or grievous hurt should actually be caused before the right could be
exercised. A mere reasonable apprehension is enough to put the right of private
defence into operation. We are fortified in this view by the decision of this
Court in Jai Dev v. The State of Punjab(1) where this Court observed as
follows:
"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." In this
very case, while adverting to the question as to whether the force used should
not be more than what is necessary, the Court observed:
"But in dealing with the question as to
whether more force is used than is necessary or than was justified by the (1)
[1963] 3 S.C.R. 489.
10 SC/75 21 312 prevailing circumstances, it
would be inappropriate to adopt tests of detached objectivity which would be so
natural in a court room, for instance, long after the incident has taken place.
That is why in some judicial decisions it has been observed that the means
which a threatened person adopts of the force which he uses should not be
weighed in golden scales." To the same effect is the decision of this
Court in Amjad Khan v. The State(1) where it was observed :
"It was impossible for him to know
whether his shop would or would not suffer the same fate if he waited, and on
the findings it was reasonable for him to apprehend death or grievous hurt to
himself and his family once they broke in, for he would then have had the right
to protest and indeed would have been bound to do what he could to protect his
family. The threat to break in was implicit in the conduct of the mob and with
it the threat to kill or cause grievous hurt to the inmates;..................
The circumstances in which be was placed were amply sufficient to give him a
right of private defence of the body even to the extent of causing death.
These things cannot be weighed in too fine a
set of scales or, as some learned Judges have expressed it, in golden
scales." Thus the question whether the appellants used more force than was
necessary would determine on the facts and circumstances of this case. We are
satisfied that in the present case it cannot be said that the appellants,
although two persons have lost their lives, had exceeded the right of their
private defence. To begin with the appellants were undoubtedly in possession of
the land and had grown wheat crop and that the prosecution party had tried to
destroy the wheat crop. The appellants were, therefore, entitled to resist the
invasion to their right by the prosecution party.
The High Court has also found that the
probabilities are that the prosecution party were also armed with gun and
Gandasis. Mohan Singh one of the persons on the side of the accused had
received a gun-shot injury which has been proved by the Injury Report (Ext..
P.D.) which shows that Mohan Singh received as many as four injuries one of
them under the right eye. Similarly the accused Behar Singh who was examined by
P.W. 5 Dr. Pritpal Singh, had two injuries which according to the Doctor were
gun-shot injuries having been caused by a gun. This Doctor also says that after
examining the injuries of Mohan Singh he was of the opinion that they were also
gun-shot injuries. The Sub-Inspector of Police also found pellets at the place
of occurrence which confirms the fact that the complainant must have fired from
his gun.
The High Court has also pointed out that the
complainant Dilbagh Singh was prosecuted for having been in possession of an
unlicensed gun and has since been absconding. These facts, therefore, clearly
establish that the prosecution party was undoubtedly armed with lethal weapons
and that a gun was also (1) [1952] S.C.R. 567.
313 fired. The High Court has also found that
the prosecution partly was the aggressor in the sense that they were bent upon
destroying the crop of the appellants and taking back possession of the land
forcibly. This is also supported by the fact that the injuries on the person of
the accused have not been explained by the prosecution and in fact Mohan Singh
was deliberately kept back from being made an accused so that the prosecution
may be absolved from the duty to explain the injuries on him.
In State of Gujarat v. Sai Fatima &
Anr.(1) one of us (Untwalia, J.,) speaking for the Court, observed as follows:
"In a situation like this when the
prosecution fails to explain the injuries on the person of an accused,
depending on the facts of each case, any of the three results may follows:
(1) That the accused bad inflicted the
injuries on the members of the prosecution party in exercise-of the right of
self defence.
(2) It makes the prosecution version of the occurrence
doubtful and the charge against the accused cannot be held to have been proved
beyond reasonable doubt.
(3) It does not affect the prosecution case
at all." The facts of the present case clearly fall within the four
corners of either of the first two principles laid down by this judgment. In
the instant case, either the accused were fully justified in causing the death
of the deceased and were protected by the right of private defence or that if
the prosecution does not explain the injuries on the person of the deceased the
entire prosecution case is doubtful and the genesis of the occurrence is
shrouded in deep mystery, which is sufficient to demolish the entire
prosecution case.
It was, however, contended by counsel
appearing for the State that on the allegations made by the prosecution the
accused bad mercilessly assaulted the prosecution party including the Sulakhan
Singh and Baj Singh and, therefore, even if they bad the right of private
defence they bad exceeded the same. We are, however, unable to accept this
contention. In the first place as the prosecution has deliberately suppressed
the very material part of the origin of occurrence, we do not know as to how
the occurrence started. Secondly when two persons on the side of the accused were
injured by gun-fire it was not possible for the appellants to weigh their blows
in golden scales in order to assault the prosecution party. 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 (1) [1975] 3 S.C.R. 993.
314 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. grievous hurt
could be caused to the appellants or one of them. This being the position they
were fully justified in causing the death. the deceased persons 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 accused should have waited until one of their party members would have
died or received serious injuries before acting on the spurt of moment, nor can
one expect a person who is attacked by an aggressor to modulate his blows in
accordance with the injuries the receives. In these circumstances, therefore,
it cannot be said that the accused had in any event exceeded their right of
private defence. If the prosecution did not come out with the true version the
nature and _origin of the occurrence, they cannot blame the Court if the entire
version presented by them is rejected, as held in the recent judgment of this
Court in State of Gujarat v. Sai Fatima & Anr.(1) For these reason
therefore we are clearly of the opinion that the accused are protected by the
right of private defence of their property and person and the prosecution case
against the appellants must fail. In any event, the prosecution case has not
been proved beyond reasonable doubt.
The appeal is, therefore, allowed, the
conviction of and the sentences passed on the appellants are set aside and the
appellants are directed to be set at liberty forthwith.
P.B.R. Appeal allowed..
(1) [1975] 3 S.C.R. 993.
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