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PETITIONER: MAGUNI CHARAN PRADHAN

       Vs.

RESPONDENT: STATE OF ORISSA

DATE OF JUDGMENT04/04/1991

BENCH: AHMADI, A.M. (J) BENCH: 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.

HEADNOTE:      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

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    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]

JUDGMENT:      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,

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         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

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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

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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.

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    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.                                                        198