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PETITIONER: HUKUM SINGH AND OTHERS

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 28/03/1961

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR SUBBARAO, K.

CITATION:  1961 AIR 1541            1962 SCR  (1) 601  CITATOR INFO :  R          1977 SC1756  (11)

ACT: Criminal  Trial-Criminal Trespass-Right of  private  defence property-Degree   of-Trespasser,  if  must  abide   by   the directions the aggrieved party-Common object-Conclusion  of- Indian Penal Code (Act 45 of 1860), s. 149.

HEADNOTE: The appellants one of whom was armed with hatchet and others with  lathis, on being prevented by one ’H’ and his  suppor- ters  through  whose  field they  were  committing  criminal trespass  with the common object to reach a  public  passage with two loaded carts, are alleged to have attacked ’H’  and his supporters, as 76 602 a  result of which ’H’ died.  The defence was that  on  ’H’s protest the appellants asked to be excused and pleaded to be allowed to cross the remaining small portion of the field to reach  the public passage, whereupon they were attacked  and in  self defence they attacked back.  The  appellants’  case was that H’s right   of private defence of the property  had ceased  for the reasons that the criminal trespass was  over on the appellants having indicated their intention to do so, and  they were no more an unlawful assembly as their  common object  had ceased and thereafter all were  not  responsible for acts of another. Held,  that when a criminal trespass had been  committed  it did not come to an end on the trespasser’s expressing regret and  then pleading to be allowed to proceed further  with  a view  to end such a trespass.  The aggrieved party  had  the right  to prevent the trespasser from continuing  to  commit such further criminal trespass, and his directions had to be abided by the trespasser, whatever be the degree of patience required;   the  trespasser  had  no  right  to  insist   on proceeding  further  even  if not allowed  to  move  in  any direction in order to leave the field. Held,  further, that when several persons were  with  lathis and  one of them was armed with hatchet and were  agreed  to use  these  weapons  in  case  they  were  thwarted  in  the achievement of their object, it would be concluded that they

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were prepared to use violence in prosecution of their common object  and that they knew that in the prosecution  of  such common  object  it  was likely that some  one  might  be  so injured as to die as a result of those injuries.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 165  of 1960. Appeal  by special leave from the judgment and  order  dated December  19, 1958, of the Allahabad High Court in  Criminal Appeal No. 1010 of 1956. Jai  Gopal  Sethi,  C. L. Sareen and R. L.  Kohli,  for  the appellants. O. C. Mathur and C. P. Lal, for the respondent. 1961.  March 28.  The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.-This appeal, by special leave, is by four persons against the order of the High Court of Judicature at Allahabad  dismissing  their  appeal  and  confirming  their conviction  for several offences including one under S.  302 read with s. 149, I.P.C., by the Sessions Judge, Saharanpur. 603 These  appellants,  along  with three  other  persons,  were alleged  to  have  forcibly  taken  two  carts  loaded  with sugarcane from the field-of Suraj Bhan through the field  of Harphool,  in  transporting the sugarcane  from  the  field, about  a  furlong  and a half away, to  the  public  passage running by the side of Harphool’s field, and to have  beaten Harphool  and  others on Harphool’s protesting  against  the conduct of the appellants’ party at the damage caused to his wheat  and gram crop.  Ram Chandar, one of  the  appellants, was armed with a hatchet (kulhari) and the others were armed with  lathis.   Harphool  and others who came  to  his  help struck the appellants’ party also in self-defence.  Harphool died as a result of the injuries received in this incident. The  appellants  admitted  their taking  the  carts  through Harphool’s field and alleged that at Harphool’s protest they asked to be excused, promised not to take the carts  through the fields in future and pleaded for the carts being allowed to cross the very small portion of the field which  remained to  be  covered  before reaching the  public  passage.   The accused  state  that in spite of all this  meek  conduct  on their  part, Harphool and his companions attacked  them  and that  then  they also struck Harphool and  others  in  self- defence. Both  the learned Sessions Judge and the learned  Judges  of the  High Court arrived at concurrent findings of  fact  an& held  that  (i) there was no passage through  or  along  the boundary of Harphool’s field; (ii) when the carts were  near the  passage and Harphool protested, the  appellants’  party began  the  attack; and (iii) the appellants’ party  had  no right  of  private  defence  of person  but  had  formed  an unlawful  assembly  with  the common  object  of  committing criminal  trespass over Harphool’s field and using force  to the extent of causing death, if necessary, in case they were prevented  from taking the carts through the  fields.   They accordingly   convicted  the  appellants  of   the   various offences. Mr.  Sethi, learned counsel for the appellants,  has  raised four contentions: (i) Any right of private 604 defence  of property which Harphool had against the  offence of criminal trespass committed by the appellants’ party, had ceased  when  the  criminal trespass was over  or  when  the

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trespassers indicated their intention to cease the  criminal trespass; (ii) If one of the rioters causes injury for which the other rioters are to be liable under s. 149, I.P.C., the injury  must have been caused in prosecution of  the  common object; (iii) An assembly ceases to be an unlawful  assembly after  the  completion of its common object  and  only  that member  of  the unlawful assembly would be  liable  for  any criminal act committed later, who has actually committed it; and  (iv) The learned Judges of the High  Court  misdirected themselves  in  raising certain inferences  from  the  facts found. It  is clear, from the first three contentions raised,  that they  are  all based on the supposition  that  the  criminal trespass which the appellants’ party was committing had come to an end when Harphool is said to have prevented them  from committing  criminal trespass and that it was  Harphool  who began the attack.  There is no such finding recorded by  the High Court.  The two carts had not left Harphool’s field and reached the public passage.  They were inside the field when the  incident  took place.  They were near the  boundary  of Harphool’s  field.  They must, in, the  circumstances,  have been several yards inside the field.  Criminal trespass  had not therefore come to an end and therefore Harphool had  the right  to prevent the appellants’ party from  continuing  to commit  criminal trespass for whatever short  distance  they had  still to cover before reaching the public pathway.   It is  true  that the appellants’ party had to get out  of  the field  and  that  this  they could  not  have  done  without committing  further  criminal  trespass.  But  it  does  not follow that this difficult position in which the party found itself  gave  them any right for insisting  that  they  must continue  the criminal trespass.  They had to abide  by  the directions  of Harphool, whatever be the degree of  patience required  in  case  they were not allowed  to  move  in  any direction  in  order to leave the field.   If  Harphool  had started the attack in the 605 circumstances alleged by the appellants, there may have been some  scope for saying that he acted unreasonably in  taking recourse to force in preference to taking recourse to public authorities or to such action which a less obstinate  person would have taken and had therefore lost any right of private defence   of  property  against  the  offence  of   criminal trespass.   We  are  therefore of  opinion  that  the  three propositions of law which, as abstract propositions of  law, are sound to some extent, do not arise in the present case. The fourth contention is really directed against the view of the  High  Court that the common object of  the  appellants’ party was to force their way through the fields of  Harphool and  to  use  force  to the  extent  of  causing  death,  if necessary,  and  that the death of Harphool  was  caused  in prosecution of that common object.  We do not agree with the contention.  It is clear from the site plan, and has been so held  by the Courts below, that the appellants’ party  could have  taken their carts to the same public passage by  going northwards from Suraj Bhan’s sugarcane field.  In so  doing, they  would have had to cover a shorter distance up  to  the public pathway and would have had the necessity to  trespass through  one field only, and that too, of one of  their  own community Sandal Rajput.  The other fields lying on the  way were  of Suraj Bhan himself.  Their choosing a longer  route which  made  them  take their carts through  the  fields  of several  Sainis including Harphool, could not be  justified. It  must  have been obvious to them that in  so  doing  they would  cause  damage to the crops growing in the  number  of

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fields  through which they would have to pass.  Such  damage must  give rise to protests by the persons to whom  loss  is caused.  -It could be expected that some such persons  might object  to the passing of the carts and that unless they  be prepared to cover back the distance to their own field, they would  have to insist on proceeding through  the  objector’s field.   Such instances must lead to a clash and to the  use of  violence.  The objector is not expected to  be  prepared for  such a conduct of the appellants’ party  and  therefore for using force. 606 The  appellants’ party consisted of a number of persons  one of  whom  was  armed with a hatchet.  It  is  therefore  not unreasonable  to  conclude that the  appellants’  party  was prepared  to use force against such an objector  to  achieve their object of taking the carts to the public pathway by  a short-cut.   The northern route, previously  mentioned,  was certainly  shorter  to reach the public  passage,  but  that route,  along with the longer portion of the public  passage to  be  covered  before reaching the  spot  near  which  the incident  took  place, was longer than  the  westerly  route through  the field which the party had taken.  When  several persons are armed with lathis and one of them is armed  with a  hatchet and are agreed to use these weapons in case  they are thwarted in the achievement of their object, it is by no means  incorrect to conclude that they were prepared to  use violence in prosecution of their common object and that they knew  that in the prosecution of such common object  it  was likely that some one may be so injured as to die as a result of those injuries.  Harphool did receive seven injuries  one of which was an incised wound, bone deep, on the right  side of the head.  Another injury consisted of a contused  wound, bone  deep,  on the left side of the  head.   Harphool  died within  twenty-four  hours of his receiving  injuries.   The death was due to shock and hemorrhage caused by the injuries of the skull bone and brain on account of the wounds on  the head.   The  offence  made out on account of  the  death  of Harphool caused by the concerted acts of the members of  the appellants’ party has been rightly held to be the offence of murder. In  view of what we have stated we do not see any  force  in this appeal.  It is accordingly dismissed. Appeal dismissed. 607