Maguni Charan Pradhan Vs. State of Orissa [1991] INSC 90 (4 April 1991)
Ahmadi, A.M. (J) Ahmadi, A.M. (J) Ramaswami, V.
(J) Ii Ramaswamy, K.
CITATION: 1991 SCR (2) 191 1991 SCC (3) 352 JT
1991 (2) 568 1991 SCALE (1)719
ACT:
Penal Code, 1860-Sections 97, 103, 105-Right of
private defence of property-Trespass of land-Exercise of right to owner against
trespasser-Scope of.
Panel Code, 1860-Section 302-Murder-Conviction
under- Plea of right of private defence of property-Causing death by giving
blows on head of the unarmed trespasser in sitting position-Amounts to abuse of
right of private defence and commission of murder.
HEAD NOTE:
The appellant was in possession of the field
under a sale deed executed by his mother in his favour till the day prior to the
incident. When he went to the field, he saw the deceased and his companions ploughing
the field. He asked them to unyoke the bullocks. On refusal he assaulted the
unarmed deceased with a stick on the head while he was sitting on the ridge,
which resulted in his death.
The Trial Court acquitted the appellant giving
him the benefit of the right of private defence to person and property. The
High Court in appeal, reversed the finding of the Trial court holding that he
had no such right and convicted the appellant under Section 302 and sentenced
him to rigorous imprisonment for life.
Dismissing the appellants' appeal, this Court, HEAD
: 1. A rightful owner in peaceful possession of his land is entitled to defend
his property against any person or persons who threaten to dispossess him. The
law does not except any cowardice on his part when there is real and imminent
danger to his property from outside sources.
Thus a rightful owner is entitled to throw out,
by using such force as would in the circumstances of the case appear to be
reasonably necessary, any person who tries to invade his right to peaceful
possession of his property. But if the trespasser has settled in the possession
of the property, the course which the rightful person must adopt is to recover
possession in accordance with law and not by force.
In such a case the trespasser would be entitled
to defend his possession even against a rightful owner if the latter tries to
evict him by use of force. [196B-C] 192
2. The appellant had a right to confront the
prosecution party which was guilty of criminal trespass and could have used
reasonable force to clear the encroachment, but he could not use it as a
pretext or excuse to settle the old dispute regarding the title to the land. He
clearly abused the right and in the guise of protecting his property he
attacked an unarmed person who was sitting at distance by inflicting heavy
blows on the vital part of his body, namely, the skull, causing multiple
fractures. The deceased had not offered any resistance, he was unarmed and was
in sitting posture when the blows were hit giving him no chance even to run
away. The appellant abused the right arising out of the trespass to kill the
deceased. This was a case of intentional murder and not something done in the
exercise of right to protect the property. [197B-D]
3. In the instant case, the appellant inflicted
more than one blow on the deceased on seeing him on his land.
There was no grave or sudden provocation as
urged by counsel for the appellant. The medical evidence clearly shows that the
blows were vicious and on the head resulting in the fractures of the parietal
bone. In such circumstances, the case cannot fall either under Section 304 Part
I or part II, IPC. The appellant will surrender to his bail and serve out the
remaining part of his sentence. [197E-G]
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No.814 of 1979.
From the Judgment and Order dated 28.6.79 of the
Orissa High Court in Government Appeal No. 26 of 1976 Amlan Ghosh for the
Appellant.
R.K.Mehta for the Respondent.
The Judgment of the Court was delivered by
AHMADI, J. The appellant was tried for the murder of Bhikari Pradhan. The Trial
Court acquitted him giving him the benefit of the right of private defence to
person and property. The High Court in appeal reversed the Trial Court holding
that he had no such right. The High Court, therefore, convicted him under
Section 302 and directed him to suffer rigorous imprisonment for life. It is
against the said order of conviction and sentience that the present appeal is
preferred.
193 The Trial Court on an appreciation of PWs 1,
5 to 7 concluded as under :
``Thus the truth seems to be that when Bhikari Pradhan
and PWs 1 and 5 to 7 criminally trespassed into the disputed land ad Bhikari Pradhan
took the dominant role in taking his two pairs of bullocks and 2 hired
laborers, PWs 5 and 7 and ploughing the disputed land, the accused party went
there to plough the same and when the accused objected Bhikari Pradhan raised
an axe at the accused who whirled the stick which struck on the head of Bhikari
Paradhan who injured and fell down on the ground and was subsequently taken to Harichandanpur
hospital where he was found dead.'' Proceeding further, the Trial Court after
discussing the case law on the point, held:
``In the present case, the deceased party
committed criminal trespass on the disputed land.
When the accused objected the forcible ploughing
of the disputed land by the deceased party, Bhikari Pradhan chased the accused
by holding an axe. In such circumstances I think the accused had reasonable
apprehension of death or grievous hurt to him, and the accused whirled the
stick which struck on the head of Bhikari Pradhan. In such circumstances it is
not only clear that the accused had no intention to cause the death of Bhikari Pradhan,
but his acts are protected by exercise of right of private defence of property
and person and did not exceed the right of private defence of property or
person. Thus the accused is protected by Section 100 and 104, IPC.'' The High
Court on a reappreciation of the prosecution and the defence evidence held:
``Considering the evidence of this witness along
with the sale deed Ext.B. we concur in the finding of the Trial Judge that the
respondent was in possession of the land by virtue of his purchase.'' and then
proceeded to add in para 9 as under :
194 ``The respondent was in possession of the
land till the date of occurrence. The prosecution party entered into the land
and forcibly ploughed the same. The respondent asked the prosecution party to
unyoke their bullocks, but they did not agree.
Such conduct would amount to criminal
trespass......'' On the question of right of private defence, the High Court
approached the question thus:
``But even if such an intention is imputed to
them the right of private defence of property against criminal trespass which
would arise in favour of the respondent will be taken away on account of the
provisions of Section 99, IPC. It says that there is no right of private defence
in cases in which there is time to have recourse to the protection of the
public authorities. Since there was no crop on the land the respondent stood nothing
to lose if he would have taken legal steps to restrain the prosecution party
from interfering with his possession. Moreover, when no actual damage was being
done to the property, he really had nothing to protect. We are, therefore, of
the opinion that there was no right of private defence of property and the
respondent cannot be said to have acted in the exercise of that right when he
assaulted the deceased.'' The High Court disagreed with the Trial Court that
the deceased had threatened to hit the appellant with an axe and, therefore,
the appellant had hit him with his stick.
Thus both the courts below have recorded a
concurrent finding of fact that the title to the field vested in the appellant
and the deceased and his companions had committed trespass by entering into and
illegally ploughing the same.
The appellant went to the field and on seeing
the deceased and his companions ploughing the field asked them to unyoke the
bullocks and on the deceased refusing assaulted him with a stick causing two
external injuries, namely (i) echymosis over the right side of face covering an
area of 3" x 2" and (ii) lacerated would 4" x 0.5" over the
right parietal bone in vertical direction. On internal examination a fracture
of the right pariental bone, a fracture starting from the middle of the pariental
bone and extending upto the right ear and concussion of the brain substance
were noticed. He opined that both the injuries were possible by two 195
separate strokes. He further opined that external injury No.2 could be caused
by 1 to 3 heavy strokes on the same part. On the basis of this evidence the
High Court came to the conclusion that the appellant was guilty of murder.
There is no doubt that the deceased died a
homicidal death. The concurrent findings of fact reveal that the appellant was
in possession of the field under a sale deed executed by his mother in his favour
till the day prior to the incident. Even so, the High Court held that he had no
right to assault and kill the deceased. That is because the law does not permit
a person, even if there is trespass upon his land to take the law in his own
hands to secure back the possession. In the instant case, when the appellant
went to his field he found the deceased and his companions in possession of the
field and tilling the land. Although the title of the field vested in him and
he was in actual possession, his remedy was not to assaulty the deceased but to
seek protection of the public authorities to evict him.
The High Court, therefore, came to the
conclusion that the appellant had no right to self defence.
The law relating to the right of private defence
is encapsuled in Sections 96 to 106, IPC. According to Section 96 nothing is an
offence which is done in the exercise of the right of private defence. Section
97 provides that every person has a right, subject to the restrictions
contained in Section 99, to defend (i) his own body, and the body of any other
person against any offence affecting the human body and (ii) the property,
whether movable or immovable, of himself or of any other person, against any
act which is an offence falling within the definition of theft, robbery,
mischief or criminal trespass. Section 99 is in two parts:
the first enumerates acts against which there is
no right of private defence and the second indicates the extent to which such
right may be exercised. The third clause falling within the first part says
there is no right of private defence in cases in which there is time to have
recourse to the protection of the public authorities. The second part says that
the right of private defence in no case extends to the inflicting of more harm
than it is necessary to inflict for the purpose of defence. Section 100 to 102
deal with the right of private defence of the body with which we are not
concerned. Section 103 provides that the right of private defence of property
extends to the voluntary causing of death or any other harm to the wrong-doer,
if the offence which occasions the exercise of the right, be an offence of
robbery, house-breaking at night, mischief by fire, theft, mischief or house
trespass. Section 104 indicates when such right extends to causing any harm
other than death. Then comes section 105 which states that the right of 196
private defence to property commences when a reasonable apprehension of danger
to the property commences and continues, in the case of criminal trespass, as
long as the offender continues in the commission thereof. These provisions
clearly show that a rightful owner in peaceful possession of his land is
entitled to defend his property against any person or persons who threaten to
dispossess him. The law does not except any cowardice on his part when there is
real and imminent danger to his property from outside source. Thus a rightful
owner is entitled to throw out, by using such force as would in the
circumstances of the case appear to be reasonably necessary, any person who
tries to invade his right to peaceful possession of his property. But if the
trespasser has settled in the possession of the property, the recourse which
the rightful person must adopt is to recover possession in accordance with law
and not by force. In such a case the trespasser would be entitled to defend his
possession even against a rightful owner if the latter tries to evict him by
use of force. But no hard and fast rule can be laid down in this behalf because
much would depend on the facts of each case.
The facts of this case reveal that the disputed
land belonged to Saibani, the appellant's mother who had sold it to the
appellant under a deed of conveyance. PW 1 happens to be her co-wife's daughter
son while the deceased was PW 1's maternal uncle. There was some dispute
between the appellant and PW 1 regarding this parcel of land. On the execution
of the sale deed dated 9th June, 1972 in favour of the appellant the title to
the land passed to the appellant and as found by both courts he was in actual
possession of the land till the day previous to the incident. The incident
occurred on 1st
June, 1974
on which day PW1 entered into the field and stared to till it with the help of
PWs5 to 7. This act of criminal trespass was at the behest of the deceased.
On that afternoon the deceased sat on the ridge
of Mohan Mahanta at a distance of about 30 cubits. At that time the appellant
arrived at the scene with his servants DW 1-Madhu and Budhu (not examined) with
plough and bullocks to till the land. On seeing PW 1 and his companions till in
the land, he asked him to unyoke the bullocks but the prosecution party refused
whereupon the appellant went to where the deceased was sitting on the ridge and
dealt him heavy blows with his stick which proved fatal. Since the defence
version that the deceased had gone after the appellant with an axe is
disbelieved, and in our view rightly, it follows that the appellant went and
attacked the deceased who was unarmed and was still in sitting posture and gave
two or three blows with his stick on the head of the 197 deceased. Can the
benefit of the right of private defence to available to the assailant in such
circumstances? Can it be said that the appellant was justified in using force?
True it is, PW 1 and his companions had invaded the field of the appellant
which was lying vacant and had started to till it.
Even so, was the appellant justified in
straightway approaching the deceased, who was sitting on the ridge, and
assaulting him on the prosecution party refusing to unyoke the bullocks? The
appellant had a right to confront the prosecution party which was guilty of
criminal trespass and could have used reasonable force to clear the
encroachment, but he could not use it as a pretext or excuse to settle the old
dispute regarding the title to the land. He clearly abused the right and in the
guise of protecting his property he attacked an unarmed person who was sitting
at a distance by inflicting heavy blows on the vital part of body, namely, the
skull causing multiple fractures. The deceased had not offered any resistance,
he was unarmed and was in sitting posture when the blows were hit giving him no
chance even to run away. It, therefore, seems crystal clear that the appellant
abused the right arising out of the trespass to kill the deceased. In these
special circumstances we feel this was a case of intentional murder and not
something done in the exercise of right to protect the property. The High Court
rightly points out that the land was lying fallow and there was no such urgency
to take the law in his own hand.
We concur with the High Court that this is a
case of murder simpliciter.
Counsel for the appellant submitted that the
conviction should be altered to one under Section 304 Part II, IPC.
This is a case in which the appellant inflicted
more than one blow on the deceased on seeing him on his land. There was no
grave or sudden provocation as urged by counsel for the appellant. The medical
evidence clearly shows that the blows were vicious and on the head resulting in
the fractures of the parietal bone. In the circumstances, we do not think that
this is a case falling either under Section 304 Part I or Part II, IPC.
We, therefore, do not see any merit in this
appeal and dismiss the same. The appellant will surrender to his bail and serve
out the remaining part of his sentence.
V.P.R. Appeal dismissed.
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