Palaniswamy and 3 others vs State

Swamidurai, J.—The accused 1 to 4 in S.C. No. 136 of 1985 on the file of the learned Additional Sessions Judge, Coimbatore are the Appellants. There were seven accused in this case originally and the accused 5 to 7 were acquitted by the trial court of all the charges. Twelve charges were framed against all the seven accused. The first charge against accused 1 and 3 is under S. 148, I.P.C. The second charge against accused 2,4,5,6 and 7 is under S. 147 , I.P.C. The third charge against the first accused is u/s 324,I.P.C. The fourth charge against the second accused is under S. 323, I.P.C. The fifth charge against the third accused is u/s 326, I.P.C. The sixth charge against accused 1,2,4,5, 6 and 7 is under S. 149, I.P.C. The seventh charge against the first accused is u/s 324, I.P.C. The eighth charge against the fourth accused is u/s 325, I.P.C. The 11th charge against accused 1,2,3,5,6 and 7 is u/s 149 read with 325, I.P.C. The tenth charge against the third accused is u/s 324, I.P.C. The eleventh charge against accused 1,2 and 3 is u/s 302 read with 34, I.P.C. The twelfth charge against accused 4,5, 6 and 7 is u/s 149 read with 302, I.P.C.

The first accused was found guilty u/s 304/Part II read with 34, I.P.C. and u/s 324, I.P.C.(2 counts), convicted and sentenced u/s 304, I.P.C. Part II read with 34, I.P.C. to undergo rigorous imprisonment for seven years and u/s 324 I.P.C. (2 counts), the first accused was convicted and sentenced to undergo rigorous imprisonment for one year. The second accused was found guilty u/s 302 (Part II) read with 34, I.P.C. and u/s 323, I.P.C. and he was convicted and sentenced u/s 302 (Part II) read with 34, I.P.C. to undergo rigorous imprisonment for seven years and u/s 323 I.P.C. he was convicted and sentenced to undergo rigorous imprisonment for three months. The third accused was found guilty u/s 304 (Part (II)) read with 34 I.P.C., u/s 326, I.P.C. and u/s 324, I.P.C. and he was convicted and sentenced u/s 304 (Part II) read with 34, I.P.C. to undergo rigorous imprisonment for seven years, u/s 326 I.P.C. to undergo rigorous imprisonment for three months and to pay a fine of Rs. 300/- in default to undergo rigorous imprisonment for five months and u/s 324 I.P.C. he was convicted and sentenced to undergo rigorous imprisonment for one year. The fourth accused was found guilty u/s 325, I.P.C. convicted and sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 200/- in default to undergo rigorous imprisonment for four months. The sentences against the abovesaid accused were directed to run concurrently.

The prosecution has examined P. Ws.1 to 14 and marked Exs.P1 to P32 and M. Os.1 to 15. The accused have not examined any defence witness. P.W.1 Saminathan had purchased 1.91 acres of land from Lakshmi ammal wife of the third accused for Rs. 10,000/- under Ex.P1 sale deed on 1.3.1984. for the purpose of trade in stones. He along with his brother Kanakaraj P.W.2, his father Muthusami P.W.3 accountant Selvaraj and six other workers went in a lorry on 15.3.84 at about 8:30 a.m. for removing the mud from the land purchased by P.W.1 They removed one lorry load of earth from that place and again the lorry was taken to the abovesaid land At that time, all the seven accused who had assembled there, prevented them from removing the earth. P.W.1 told the first accused that he had purchased the land for value from Lakshmi ammal and the first accused told him that Lakshmi ammal had asked him to look after the land and that P.W.1 should bring Lakshmiammal. The persons who were present at that time also told the same thing to P.W.1. P.W.1 and Manivasagam therefore went to Vadakkupalayam to bring Lakshmiammal. P.W.1 his men were standing near a tree and the accused and their men told them that if they would stand near that land, their legs and hands would be broken.

P.W.1 left that place saying that he would go to the police station. Lakshmiammal was not there and therefore, P.W.1 had returned. On the way to Police Station, P.W.1 met one Govindasami who informed P.W.1 that this matter could be solved by a Panchayat and that P.W.1 need not go to the police station. Therefore P.W.1 returned to his house. Again on the suggestion of Chinnasami, a Maistry, P.W.1 and his uncle P.W.3 Krishnasami went in a motor cycle to Periakadu at about 3:30 p.m. and P.W.1 went near the place where his men were waiting. At that time the first accused told " " and so saying the first accused cut P.W.1 on his left hand and head with an aruval. The second accused beat P.W.1 with the stick, When P.W.3 Krishnasami questioned them he was cut by the third accused on his hand and leg indiscriminately and when Selvaraj attempted to prevent them, accused 1 and 3 cut Selvaraj with an aruval on his head. Second accused beat Selvaraj with sticks and P.W.2 was cut by third accused with an aruval and P.W.4 was beaten by accused 2 and 4 with a stick. He was also cut by the accused with an aruval. P.W.1 snatched away the aruval from the first accused and threw it away and the aruval fell on the head of the fifth accused. P.W.2 snatched the stick from the 4th accused and beat on the head of the first accused. Then all the accused ran away from that place. P.W.3 fell on the ground without injuries. This occurrence was witnessed by the men in the lorry brought by P.W.1 for removing the earth and P.W.6 Selvaraj also witnessed the occurrence. Then the injured persons were taken away in the lorry to the hospital and P.W.6 drove the motor cycle of P.W.5 and P.W.1 was asked to sit on the rear seat and they went to Tiruppur North Police Station. P.W.1 gave a statement before the police and the station writer P.W.12 recorded it and got the signature of P.W.1. P.W.12 registered a case in Cr. No. 145/84 under Ss. 147, 148, 341, 323 and 324, I.P.C. Then P.W.1 was sent by the police to the hospital for treatment. P.W.12 sent express reports and F.I.R. to the Judicial Magistrate and to his higher authorities. Ex.P2 is the F.I.R. Then the police received amemo about 10.00 p.m. from Tiruppur Government Hospital and P.W.12 went to the hospital and found the first accused being admitted as an in-patient in the said hospital and the first accused gave a statement which was recorded and after returning from the hospital. P.W.12 registered a case in Cr. No. 146/84 under Ss. 147, 148, 323 and 324, I.P.C. and sent express reports to the higher authorities. Ex.P19 is the F.I.R. relating to Cr. No. 146/84.

P.W.7 Dr. Banumathi examined P. Ws.1 to 4 and the deceased Selvaraj in the hospital for the injuries, sustained by them. P.W.7 issued wound certificate Ex.P4 for P.W.3. Ex.P5 is the wound certificate for P.W.4. Ex.P6 is the wound certificate for P.W.2 Ex.P7 is the wound certificate for P.W.1. Ex.P8 is the wound certificate for the fifth accused and Ex.P9 is copy of the accident register relating to the seventh accused. Dr. Vivekanandan, P.W.9 examined the first accused on the same date and found six injuries on him and issued wound certificate Ex.P12.

P.W.14 Inspector of Police, Tiruppur Circle took up further investigation in both the crime numbers 145/84 and 146/84, went to the hospital at Tiruppur on 13.3.1984 and examined P. Ws.1, 2, 4 and others and recorded their statements. P.W.14 seized M. Os.1 from P.W.IM. Os.2 to 4 from P.W.3 M. Os.7 and 8 from Selvaraj and M. Os.5 and 6 from P.W.4 under mahazars Exs.P22 to P25. Then P.W.14 seized the bloodstained dhoti M.O.9 from the first accused under Ex.P26. Since P.W.3 and Selvaraj were in unconscious state, P.W.14 could not examine and obtain any statement from them. P.W.14 went to the place of occurrence at 7.30 a.m. on 16.3.1984 and prepared an observation mahazar Ex.P27 and a rough sketch Ex.P28. Then he seized two spade handles, two spades, two bins and a crowbar and also bloodstained earth M. Os.10 to 15 under a mahazar Ex.P29. He examined P. Ws.5 and 6 and other witnesses. P.W.14 arrested the accused 3,4 and 7 at about 2.00 a.m. on 17.3.84 at Tiruppur. P.W.14 recovered M. Os.16 and 17 bloodstained clothes under a mahazar Ex.P30 from the 7th accused. Then he sent the accused for remand. He received a memo on 18.3.84 at 7.30 a.m. to the effect that Selvaraj expired and P.W.13 Head Constable altered the offence to one u/s 302 I.P.C. in Cr. No. 145/84 and sent F.I.R. Ex.P21 to the Judicial Magistrate and to the higher authorities P.W.14 went to the Government Hospital and held inquest under Ex.P31. Then he made arrangement for taking the body to the hospital for post mortem and P.W.10 Police Constable took the body to the hospital for postmortem. Ex.P11 is the postmortem certificate. P.W.8 Dr. Vadivelu conducted autopsy over the dead body of Selvaraj and he was of the opinion that the accused would appear to have died of head injuries. P.W.14 arrested the first accused at Tiruppur Government hospital at 7:45 p.m. on 2.3.1984 and he examined P.W.3 in the hospital on 27.3.84. The second accused surrendered before the Judicial Magistrate on 28.3.1984 to the court of Judicial Magistrate, Tiruppur for sending them to Chemical Analyst for examination. Then he received Exs.P15 and P16 reports from the Chemical Examiner and Serologist. The 5th accused was released on anticipatory bail on 28.4.84 and P.W.14 arrested the 6th accused on 4.6.84 near Tiruppur Venkateswara Kalyana Mandapam. P.W.14 examined P.W.7 in the hospital on 28.6.84 and got wound certificate. Then after completing investigation, he referred the case in Cr. No. 146/84 as mistake of fact and filed the charge sheet against the accused in Cr. No. 145/84 under Ss. 147, 148, 341, 323, 324, 325, 326 and 302 read with 34 and 149, I.P.C. on 23.9.84.

When the accused were questioned u/s 313,Cr.P.C. with regard to the incriminating circumstances appearing against them from the evidence of prosecution witnesses, they denied the occurrence and pleaded not guilty. The accused in general have stated that P.W.1 and his party had attacked the accused and the accused also in turn retaliated by attacking them.

Learned Sessions Judge found the accused 1 to 4 guilty of the offences as aforementioned, convicted and sentenced them and acquitted the accused 5 to 7 of all the charges. The accused 1 to 4 have filed this appeal challenging the legality of the judgment of the lower court.

In the grounds of appeal it is mentioned that the lower court, having acquitted the accused 5 to 7 disbelieving the case of prosecution, should have acquitted the accused 1 to 4 also. The lower court having accepted the defence version as more probable than that of the prosecution, ought to have acquitted the Appellants also. The lower court failed to see that P.W.1 has not produced any document to show that he is having any right over the disputed land and further P.W.1 went to the disputed land for the first time to remove the earth which was objected to by the accused and thereafter, the prosecution party indulged in violence as stated by the accused and the court below ought to have held that the accused acted in exercise of their right of self defence of property and person. In the grounds of appeal, it is also stated that P.W.1 has stated that all the seven accused were present at the scene whereas the other witnesses nave stated that only accused 1 to 4 were present at the scene and the lower court should have disbelieved the evidence of prosecution witnesses and acquitted the accused Appellants herein.

Learned Counsel for the Appellants contended that the first accused gave a report to the police and a case was registered in Cr. No. 145/84. But the police had referred the same as mistake of fact. It is seen from the evidence of prosecution witnesses that the first accused also sustained injuries and that the doctor has examined him and issued wound certificate. On the side of the accused, three of them had been cut and it cannot be denied that the prosecution witnesses P. Ws.1 to 4 had caused injuries to three of the accused. Learned Counsel for the Appellants contended that this is a case where the accused had exercised their right of private defence when their right in the property had been interfered with by P.W.1 and his party men without any proof of title. Even P.W.1 did not show the alleged sale deed obtained by him from the previous owner Lakshmiammal to the first accused when the latter questioned him about his title. It is true that Selvaraj died due to injuries sustained by him in the scuffle two days after the occurrence in the hospital. Ex.P12 is the accident register issued to the first accused by P.W.9 the medical officer who examined him. The first accused sustained two cut injuries on his head and about five teeth were also found shakey after this occurrence. It is true that both sides had sustained injuries due to the attack between them. It was also pointed out by the learned Counsel for the Appellants that there is discrepancy with regard to the place of occurrence. According to him, in Ex.P1 the place of occurrence is stated to be somewhere on the way to Periakadu opposite to Otha Puliamarathottam. But as per the evidence of prosecution witnesses, the place of occurrence is stated to be Periakadu near Otha Puliamara Thottam. The accused 1 and 3 admitted that they prevented earth being removed by the prosecution witness and the concurrence had taken place due to that dispute when P.W.1 and his party men attempted to remove the earth.

The only question to be considered in this case is whether the accused are entitled to the right of private defence. The first accused sustained injuries. The accused 5 and 7 also sustained injuries. The first accused in his report had stated that P.W.1 and his party men had attacked him, his brother and others. There is no evidence that the accused 5 to 7 has attacked any of the prosecution witnesses the accused 5 and 7 had sustained injuries. The lower court even though there is material available in support of the contention of the learned Counsel for the Appellant that the accused are entitled to right of private defence when their right to property is sought to be interfered with illegally by P.W.1 without trace to any process of law, has not accepted the same.

The right of private defence is dealt with under Ss.96 to 106, I.P.C,. Section 96, I.P.C. reads that nothing is an offence which is done in the exercise of right of private defence. Section 97, I.P.C. deals with right of private defence of the body and the property. Section 100, I.P.C. deals with right of private defence when the private defence of the body extends to causing death. Section 101, I.P.C. deals with right of private defence when such right extends to causing any harm other than death and Section 102, I.P.C. deals with commencement had continuance of right of private defence of the body.

Learned Public Prosecutor contended that the accused have exceeded the right of private defence and caused injuries to P. Ws.1 to 3 and also caused the death of Selvaraj. Section 97, I.P.C. reads as follows:

Every person has a right, subject to the restrictions contained in Section 99, to defend.

First: -His own body, and the body of any other person, against any offence affecting the human body;

Secondly: The property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery mischief, or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

S. 99, I.P.C. reads as follows:

There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by a public servant acting in good faith under colour of his office, though that act may not be strictly justifiable by law.

There is no right of private defence against an act which does not reasonably cause the apprehension of death or of grievous hurt, if done, or attempted to be done by the direction of a public servant acting in good faith under colour of his office though that direction may not be strictly justifiable by law.

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 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.

Explanation 1: A person is not deprived of the right of private defence against an act done, or attempted to be done by a public servant, as such, unless he knows or has reason to believe, that the person doing the act is such public servant.

Explanation 2: A person is not deprived of the right of private defence against an act done, or attempted to be done by the direction of a public servant, unless he knows, or has reason to believe that the person doing the act is acting by such direction, or unless such person states the authority under which he acts, or if he has authority in writing, unless he produces such authority, if demanded.

Admittedly, the first accused was in possession of the disputed property on the date when P.W.1 went with his men to remove the earth on the basis of a sale deed obtained by him from the previous owner Lakshmiammal and that too without showing the copy of the sale deed to the first accused.

The point for consideration is whether the first accused has exercised the right of private defence in respect of the property in his possession or whether he has exceeded his right of private defence. Admittedly, it is P.W.1 who went to the disputed property along with his men for removing the earth when the first accused was in possession of the same. Therefore, it can safely be stated that it is P.W.1 who went there and provoked the first accused by removing the earth and attempted to remove more earth further. It is true, the accused 1,5, to 7 also sustained injuries and the first accused also sustained cut injuries on his hand, a vital part of the body. Learned Counsel for the Appellants also submitted that Section 100 I.P.C. also comes to his rescue when the right of private defence of the body extends to causing of death. Section 100, I.P.C. reads as follows:

The right of private defence of the body extends under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:

First: Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault:

Secondly: Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of any such assault;

Thirdly: An assault with the intention of committing rape.

Fourthly: An assault with the intention of gratifying unnatural last

Fifthly: A assault with the intention of kidnapping or abducting

Sixthly: An assault with the intention of wrongfully confining a person, under circumstances which may reasonably cause him apprehend that he will be unable to have recourse to the public authorities for his release.

In the decision Jai Dev Vs. The State of Punjab, the Supreme Court has observed as follows:

There can be no doubt that in judging the conduct of a person who proves that he had a right of private defence, allowance must necessarily 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. It is no doubt true that in striking a decisive blow he must not use more force than appears to be reasonably necessary. But in dealing with the question as to whether more force is used that is necessary or was justified by the 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 or the force which he uses should not be weighed in golden scales. To begin with, the person exercising a right of private defence must consider whether the threat to his person or his properly is real and immediate. If he reaches the conclusion reasonably that the threat is immediate and real, he is entitled to exercise his right. In the exercise of his right, he must use force necessary for the purpose and he must stop using the force as soon as the threat has disappeared. So long as the threat lasts and the right of private defence can be legitimately exercised, it would not be fair to require, as Wayne has observed, that he should modulate his defence step by step, according to the attack, before there is reason to believe the attack is over. The law of private defence does not require that the person assaulted or facing apprehension of an assault must run away for safety. It entitles him to defend himself and the law gives him the right to secure his victory over his assailant by using the necessary force. This necessarily postulates that as soon as the cause for reasonable apprehension has disappeared and the threat has either been destroyed or has been put to rout, there can be no occasion to exercise the right of private defence. If the danger is continuing the right is there; if the danger or the apprehension about it has ceased to exist, there is no longer the right of private defence.

This judgment has been followed by this Court subsequently. Therefore, it is true that P.W.1 and his men came there for removing the earth without his sale deed and it is the first accused who resisted the same and in the course of the dispute a quarrel had arisen and both parties indulged in beating with each other and the accused 1 and 5 had sustained head injury and it cannot be said that the accused had exceeded their right of private defence especially when their property was sought to be interfered with by P.W.1 and his son. As pointed out by the Supreme Court in the abovesaid judgment, ''the means which a threatened person adopts or the force which he uses should not be weighed in golden scales''. In the circumstance, the right of private defence is made available to the accused and their action in defending their threat to property comes under the abovesaid provisions of Indian Penal Code for which I hold that the Appellants have not committed any offence.

In the circumstances, the conviction and sentence as against the accused Appellants cannot be upheld and the accused Appellants herein are entitled to right of private defence and their action cannot be said to be an offence under any of the provisions of Indian Penal Code. The conviction and sentences against the Appellants are set aside and the accused/Appellants are acquitted and the appeal is allowed. The fine amount it paid, is directed to be returned to the Appellants.