Public Prosecutor vs Chenchuvela Acharl and Others

K.N. Mudallar, J.—The State files this appeal against the order of the learned Assistant Sessions Judge III, Chingleput acquitting accused 1,

2 and 4, the Respondents herein, for an offence u/s 326, I.P.C.

Briefly, the substance of the presecution case is that P.W. 1 and others went to the field known as Thachamanyam at about 6 O''clock in the

morning of 27th July 1966 with ten ploughs. The prosecution party tied the ploughs. They were ploughing. There is the darkhast land cultivated by

accused 2 by the side of Thachamanyam or Kamralamanyam. At about 8 O''clock accused, 1, 2 and 4 and eight ethers came armed.P.Ws. 2 and

3 corroborate the evidence of P.W. 1. P.W. 4 says in his evidence that 15 persons belonging to the prosecution party were in the Thachamanyam

and that they were chased and beaten by the accused party. In his cross-examination he claims that he used to plough the Thachamanyam.

Strangely enough he does not remember who harvested the oarpentry land last year Masl. He does not even remember who enjoyed the crop last

year Masl. He does not even know who harvested the crop after the quarrel. P.W. 6 also speaks about their cultivating in Kamsalamanyan on the

date of occurrence at 6 O''clock. The eleven accused came armed. P.W. 6 says that they got afraid and stepped the ploughs. P.W. 6 speaks

about the further attack by the accused party of eleven against the fifteen of the prosecution party. P.W. 9 admits that P.W. 5 was gathering grass.

P.W. 9 stopped ploughing. According to this witness, accused 1 cut P.W. 5 on the right shoulder with a patta kaife. It emerges from the evidence

on record that P.Ws. 3, 5, 1 and 4 sustained grievous injuries. The so-called independent evidence is given by P.Ws. 19, 23, 25 and 26 broadly

speaking.

The pleas of accused 1, 2 and 4 is one of denial, In an elaborate discussion of the entire evidence on record the learned Assistant Sessions

Judge III of Chingleput in paragraph 43 gives a finding that accused 1 was in possession of Thachamanyam on the date of the occurrence and was

cultivating the same. In paragraph 45 the learned Judge further observes that accused 1 along with accused 2 to 11 came and attacked P.Ws. 1 to

15, who were ploughing, sowing and gathering grass in Thachamanyam, which was in the posses of accused 2. He farther gives a finding that

P.Ws. 1 to 15 had deliberately and as a result of pre-arrangement trespassed into Thachamanyam and were ploughing, sowing and gathering grass

at the Instance of metti ryots in the village and that accused 1, who was in possession of Thachamanyam, along with accused 2 to 11 attacked

them. He farther finds: ""This, they were entitled to do in the exercise of their right to private defence of property."" The occurrence took place in

Pondavakkam village where there is no police station and there was no time for the accused to have recourse to the public authority. He further

finds that accused 1 to 11 had attacked P.Ws. 1 to 15 and earned injuries to them in the exercise of their tight of private defence of property, that

they were not members of an unlawful assembly, nor have they committed rioting. The learned Judge further found that accused 1, 2 and 4 have

exceeded their right of private defence in causing grievous injuries to P.W. 5, P.W. 3, P.W. 1 and P.W. 4 respectively and that accused 1, 2 and 4

were guilty u/s 326, I.P.C. The other accused were acquitted of all the charges.

In their appeal against their conviction u/s 326, I.P.C., accused, 1, 2 and 4 contended for the benefit of their sight of private defence, and the

learned Judge was perfectly justified in accepting the plea of right of private defence availing accused 1, 2 and 4. The learned Judge held (1) that

Ex. P-31, the first information report In this case was not a reliable document, (2) that there was a false endorsement purporting to be that of the

village munsif to the effect that after the receipt of the complaint from P.W. 18 he visited the scene and found the injuries on the prosecution party;

(3) that the plea that the injured persona of the prosecution party were lying unconscious at the time of the visit of the Inspector was unbelievable,

and (4) that the manner in which the evert acts were attributed to each of the eleven accused vis-a-vis the fifteen injured in minute details and

chronological order was itself suggestive of the fact that it could not have been made to the village munsif at the time when it was said to have been

made. The learned Judge disbelieved the evidence of P.W. 18 and ultimately found that Ex. P-31 was of no value.

I am of the view that Ex. P-31 is the very basis of the prosecution case, and, if that document becomes vitiated and therefore unreliable, the

prosecution case ought to fall in toto.

The learned Judge was through the evidence of P.Ws. 19 to 23, 25 and 26 and ultimately found that the prosecution party were actuated with

animosity against accused 1 apparently in connection with Thachamanyam land and, therefore, it was difficult to believe which one of the accused

had caused injuries to which of the witnesses, He further found that there was no definiteness of about accused 1 having inflicted the injuries on

P.W. 5, likewise accused 2 on P.W. 3 and accused 4 on P.Ws. 1 and 4. The learned Judge further disbelieved the evidence of P.Ws. 1 to 24 and

also the endorsement made in Ex. P-31 and also the evidence of the Inspector. The learned Judge was of the view that the state of evidence on

this record was so unsatisfactory that it was not possible to attribute any overt act to accused 1, 2 and 4.

On this ground alone the learned Judge was justified in passing his order of acquittal. But the learned Judge further proceeds and considers

whether the accused were protected by the right of private defence end ultimately holds that the right of private defence availing accused 1, 2 and

4 has not been exceeded.

The learned Public Prosecutor argued before me that in view of the statement of accused 1 that Reddis in the village had tom-tommed that day

that they would go and plough the land and that in view of his knowledge he ought to have resorted to the public authorities for any relief against

the prosecution party. I am afraid this argument lacks substance. Accused 1 might know the projected move of the prosecution party to plough

Thachamanyam land but the move might not fructify at all. The finding of both the Courts below is that accused 1 was in possession; of the land in

question and he had every right to defend his property against the criminal trespass or mischief in his land.

The next argument advanced by the learned Public Prosecutor is that, when the eleven accused entered Thachamanyam land, soma of the

prosecution witnesses were chased and injured after giving up ploughing. But it is not the argument of the learned Public Prosecutor that any of the

prosecution witnesses were outside the bounds of Thachamanyam land and that they were injured by the accused outside the boundaries of

Thachamanyam land. The accused-Respondents had every right to inflict that amount of (sic) and throw them or expel them out of their land.

The learned Public Prosecutor relied on certain authorities in Gurdetta Mal v. State of Utter Pradesh (1965) 2 S.C.J. 550 and Hariram

Mahatha v. Emperor AIR 1942 Pat 96. There decisions were considered by the learned Judge and found to be totally inapplicable to the facts of

this case. These two decisions relied on by the learned Public Prosecutor are really net helpful. I bold that accused 1, 2 and 4 Respondents herein

were entitled to exercise their right of private defence and that they did not exceed their right of private defence of property in view of the

principles enunciated by the Supreme Court in Gottipulla Venkatasiva Subbrayanam and Others Vs. The State of Andhra Pradesh and Another, .

Their Lordships of the Supreme Court observed as follows:

The right of private defence of person and property is recognised in all free, civilised, democratic societies within certain reasonable limits. Those

limits are dictated by two considerations: (1) that the same right is claimed by all other members of the society, and (2) that it is the State which

generally undertakes the responsibility for the maintenance of law and order. The citizens, as a general rule, are neither expected to ran away for

safety when faced with grave and imminent danger to their person or property as a result of unlawful aggression, nor are they expected by use of

force, to right the wrongs done to them or to punish the wrong doer for commission of offences. The right of private defence serves a social

purpose and as observed by this Court more than once there is nothing more degrading to the human spirit than to run away in face of peril:

Munshi Ram v. Delhi Administration Crl. App. No. 124 of 1965 decided on 27th November, 1967, Mahna v. State of Rajanathan AIR 1942 Pat.

96 decided on 30th October, 1962. But this right is basically preventive and not punitive. It is in this background that the provisions of Sections 96

to 106 I.P.C. which deal with the right of private defence have to be construed. According to Section 96 nothing is an offence which is done in the

exercise of the right of private defence, and u/s 97 subject to the restrictions contained in Section 99 every person has a right to defend: (1)

5) Crl. App. No. 23 of 1960.

his own body and the body of any other person against any offence affecting the human body, and (2) the property whether moveable 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

tresspass or which is an attempt to commit these offences. The right of private defence, according to Section 99, does not extend to an act which

does not reasonably cause the apprehension of death or of a grievous hurt, if done or attempted to be done by a public servant acting in good faith,

etc., and there is also no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Nor

does it extend to the inflicting of more harm than is necessary to inflict for the purpose of defence. Section 100 lays down the circumstances in

which the right of private defence of the body extends to the voluntary causing of death, or of any other harm to the assailants. They are: (1) if the

assault which occasions the exercise of the right reasonably causes the apprehension that death or grievous hurt would otherwise be the

consequence thereof and (2) if such assault is inspired by an intention to commit rape or to gratify unnatural last or to kidnap or abduct or to

wrongfully confine a person under circumstances which may reasonably cause apprehension that the victim would be unable to have recourse to

public authorities for his release. In case of less serious offences this right extends to causing any harm ether than death. The right of private

defence to the body commences as soon as reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence

though the offence may not have been committed and it continues as long as the apprehension of danger to the body continues. The right of private

defence of property u/s 103 extends, subject to Section 99, to the voluntary ex-using of death or of any other harm to the wrongdoer if the offence

which occasions the exercise of the right is robbery, housebreaking by night, mischief by fire on any building, etc., or if such offence is, theft,

mischief or house trespass in such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if the

right of private defence is not exercised. This right commences when reasonable apprehension of danger to the property commences and its

duration, as prescribed in Section 105, in case of defence against criminal trespass or mischief, continues as long as the offender continues in the

commission of such offence.

Section 106 extends the right of private defence against deadly assault even when there is risk of harm to innocent persons... The fact that the plea

ef self-defence was not raised by accused No. 10 and that he had on the contrary pleaded alibi does not, in our view, preclude the Court from

giving to him the benefit of the right of private defence, if, on proper appraisal of the evidence and other relevant material on the record, the Court

concludes that the circumstances in which he found him-self at the relevant time gave him the right to use his gun in exercise of this right. When

there is evidence proving that a person accused of killing or injuring another acted in the exercise of the right of private defense the Court would

not be justified in ignoring that evidence and convicting the accused merely because the latter has set up a defence of alibi and set fourth a plea

different from the right of private defence.

I find the rights of private defence of property under Sections 103 and 105 avail the accused Respondents (accused, 1, 2 and 4). This appeal

is totally devoid of any semblance of merit and is dismissed. The order of acquittal of accused 1, 2, and 4 is confirmed.

For the foregoing reasons I find so merits in Crl. Revn. Cases Nos. 881 of 1967 and 930 of 1968. Both these petitions also fail and are

dismissed.