Cases referred:
State of Andhra Pradesh v. Thadi Narayana, AIR 1962 SC 240.
Lakhan Mahto & Others v. State Of Bihar, AIR 1966 SC. 1742.
Jai Dev v. State Of Punjab, AIR 1963 SC 612.
State of U.P. v. Ram Swarup and an other AIR 1974 SC 1570.
Brown v. United States, (1921) 256 US 335.
Victor alias Kalloo v. State of Madhya Pradesh, 1966 MPLJ 877.
Baljit Singh and another v. State of U.P., AIR 1976 SC. 2273.
State of Bihar v. Nathu Pandya and another, AIR 1970 SC. 27.
Lalji and others v. The State of U.P., AIR 1973 SC. 2505.
State of M.P. v. Shankar and four others 1976 Cr. L.R. (Notes) 66 (M.P.).
Ranjit Singh and another v. The State, AIR 1957 Pb. 306.
Mukhtiar Singh and another v. State of Punjab, 1975 Cr. L.J 132.
JUDGMENT
B.C. Verma, J. - By this appeal is questioned the acquittal of the respondents under section 302, read with section 34, Indian Penal Code, fur causing the murder of one Kamal Singh. For the same incident, however" the respondents accused have been convicted under section 323, Indian Penal Code and have been sentenced to six months rigorous imprisonment and some fine. They have chosen not to challenge this conviction.
2. For the purpose of this appeal at this stage, it can be assumed that respondents were the holders and in cultivating possession of a filed in village Piplia Dhaker, police Station Umraoganj, District Raisen, where the incident took place on 23-11-1980. It is also on more in dispute that in the said incident Kamal Singh died. It also now needs no discussion to say that on the date of incident Kamal Singh had entered into that field against the wishes of the respondents and inspite of their protest. Even earlier Kamal Singh attempted to take his tractor and other agricultural implements across that field through a cart-track. It appears that because of this dispute, the relations between the parties were strained. The deceased insisted upon going through that field had almost adopted an obstinate attitude in that behalf. On the date of incident i.e. on 23-11-1980, at about 6.00 P.M. he again entered into that field after crossing the mend. On this he was assaulted by hard and blunt weapons. He fell down on the spot and ultimately died. Report of the incident was made at the police station at 7.30 P.M. by his brother Harayan Singh (P.W. 2). It is Ex. P-3. After due investigation, the challan was put up against the three respondents (respondent Rewarm being the father of the remaining two, namely Dulichand and Awadh Narayan). The plea of Rewarm and Dulichand was one of alibi. Respondent Awash Narayan's plea was that it while he was ercting a bagar (hedge) on the mend of his field, Kamal Singh came armed with a farsa and tried to break the bagar and assaulted Awadh Narayan, Awash Narayan's brother Bhagwan Singh came with a stick in his hand and then both of them beat Kamal Singh in right of private defence. At the trial, Kamal Singh (P.W. 1) did not support the prosecution but Narayan Singh (P.W. 2) and Ramswaroop (P.W. 3) stood firm and supported the case of the prosecution. The defence examined one Amarsingh as D.W. 1. The lower Court rejected the plea of alibi of Rewaram and Dulichand and held that all the three respondents were present on the spot at the time of the incident. It also held that all the three persons beat the deceased in their right of private defence of property. The right of private defence of person was denied. It has, however, been found that the respondents exceeded their right of private defence and since it was not certain as to who caused the particular injuries out of the many injuries including fractures found on the person of the deceased, it held each of them guilty under section 323, Indian Penal Code. The respondents rest content with this conviction and the state only appeals.
3. Autopsy was held over the dead body of Kamalsingh by Dr. Deshmukh (P.W. 4). The post mortem report is Ex. P-5. The record also contains diagrams showing the places where the deceased had sustained injuries. The evidence of Dr. R. Deshmukh (P.W. 4) shows that the deceased had sustained as many as 21 external injuries and there were as many as 36 internal injuries. The injuries show that Kamal Singh's skull was completely snashed and the brain was macerated. The injuries also indicate that most of them were on the right side of the body. Dr. Deshmukh has deposed that as a result of the head injuries the underlying bones were fractured into multiple pieces and some pierced in to the cranial cacity tearing the duram-embrance and the brain. The right occipital and parietal regions were depressed involving an area of 12 x 12 cm. and the brain was macerated. The prosecution has examined Narayan Sirgh (P.W. 2) and Ramswaroop (P.W. 3) as eye-witnesses, Ramswaroop (P.W. 3) deposed that the first assault on Kamal Singh was by Rewraam. On receiving a lathi blow from Rewaram, Kamal Singh fell down, where after the other two viz., Dulichand and Awadhnarayan, joined Rewaram and all the three mercilessly beat him and Kamal Singh died.
4. Before considering the respective contentions raised in the appeal by the learned counsel for the parties, we may state that as respondents have not chosen to challenge their conviction, the scope of appeal becomes rather restricted. It will not be permissible for us now to look into other aspects of the matter which arose for consideration before the lower court at the time of trial. In State of Andhra Pradesh v. Thadi Narayan1 it was pointed out that where several offences are charged against an accused person the trial is no doubt one but where the accused person is acquitted of offences and convicted of others, the character of appellate proceedings and their scope and extent is necessarily determined by the nature of the appeal preferred before the appellate Court. This principle was applied by the Supreme Court in a subsequent case in Lakhan Mahto & Others v. State Of Bihar2 and it was observed that if an order of conviction is challenged by the convicted person but the order of acquittal' is not challenged by the State then it is only the order of conviction that falls to be considered by the appellate Court and not the order of acquittal. It would, therefore, follow that in a case where an accused is charged with several offences and convicted only for few, but does not chose to appeal and the State appeals against the acquittal on other charges, it will not be open in the appeal so preferred by the State against the acquittal to consider the property of conviction on other charges. Therefore, in the present case it has to be taken as finally decided that all the respondents were present on the spot, they participated in the incident and caused injuries to Kamalsingh. The limited scope of this appeal is to see whether the offence committed by the respondents would be murder punishable under section 302, I.P.C.
5. In view of the medical evidence in the case, it was argued on behalf of the appellant that the right of private defence of property which accrued in favour of the respondents on Kamalsingh's committing trespass into that field, came to an end when Kamal Singh fell on the ground completely in-capacitated. The continued beating thereafter could not be protected under that right and' the respondents would, therefore, be held guilty of the offence of murder also. As against this, the respondents argument was that the right of private defence of property continued so long as the trespass committed by Kamal Singh continued and since Kamal Singh did not withdraw himself from the field, their right of private defence of property never came to an end. It was, however, conceded that since death was caused the respondents can be held guilty only of exceeding that right. Kamalsingh died as a result of injuries sustained by him at the hands of the respondents. He undoubtedly committed trespass into their field. To begin with, therefore, the respondents did have right of private defence of property. Whether this right of any point of time came to an end, or whether it was only exceeded is the question which falls for our consideration.
6. Right to defend property against mischief or criminal trespass is provided in Section 97, Indian Penal Code (hereinafter referred to as the Code), subject to the restriction contained in Section 99 of the Code. According to Section 97, 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. In terms of section 103 of the code, the right of private defence of property extends, subject to the restriction mentioned in Section 99 of the Code of the voluntary causing of death or of any other harm to the wrong doer in case of theft, mischief or house-trespass under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence if such right of private defence is not exercised. Where, however, the offence is theft, mischief or criminal trespass, nor enumerated in section 103 of the code and which occasion the exercise of right of private defence, of property, the right does not extend to voluntary causing of death but only extends to voluntary causing to .the wrong doer of many harm other than death. (See Section 104 of die Code). Section 105 of the Code then deals with the commencement and continuance of the right of private defence of property. It lays down that the right of private defence of property commences when a reasonable apprehension of danger to property commences and such right against criminal trespass of mischief continues as long as the offender continues in the commission of the criminal trespass Or mischief. Criminal trespass, according to section 441 of the code is committed when a person enters into or upon the property in possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property. The aforesaid provisions show that upon a criminal trespass being committed upon some body's property the holder of that property has a right to defend his property against the trespass and in so doing, has a right to caused to the trespasser any harm other than death, if the trespass is not of the kind falling under "clause fourthly to section 103 of the code." Such a, right accrues at the initial entry and continues only so long as the trespass so commenced continues. The right will thus come to an end when the trespass ends. In Jai Dev v. State Of Punjab3 dealing with the right of private defence, it was held that in view of the purpose underlying the section of the doctrine of private defence, the citizen defending himself or his property, is not entitled to use violence unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. It was further observed that in exercise of such right, the person must use force necessary for the purpose and he must stop using the force as soon as the threat disappears. Discussing the nature of this right Gajendragadkar J. (as he then was) who delivered the judgment of the Court observed in para 13 thus :
"It entitles him to defend himself and 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 the 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."
Again in State of U.P. v. Ram Swarup and another4, it was emphasised that the right of private defence in no case extends to the inflicting of more harm than it is necessary. The Court further held that the right of defence ends with the necessity for it.
7. The evidence in the present case discloses that undoubtedly the deceased Kamalsingh insisted upon carrying his cart through the respondents field. On the fateful day when he had crossed the mend of the field and had gone only about five paces ahead (See para 8 of the deposition of P. W. 7 Virendra Kumar), the respondents opened the assault on him. From the panchayatnama (Ex. P-2) it would appear that no arm or farsha was seized from the spot. That would indicate that the deceased was unarmed. From the evidence of P.W. 7 Virendra Kumar Jain and the spotmap (Ex. P-4) it will also appear that no damage to the crop was caused. The injuries on deceased Kamal Singh show that beating to him continued for a sufficiently long time and his head was completely macerated. The diagram appended to the post mortem report (Ex. P-5) and the evidence of Dr. R. D. Deshmukh (P-4) would indicate that the injuries were inflicted only on one side of the body. It appears that the bearing continued even after Kamal Singh fell down on the ground. No doubt Kamal Singh (deceased) committed trespass into the field of the respondents, but then this act of the deceased only permitted, the respondents to use such force as was sufficient to avert that danger to the property. After Kamal Singh fell on the ground injured and was unable to move, he was thus incapable of committing any more trespass. Any, further act of beating or of causing death cannot then be protected under the colour of the right of private defence. In a given case it may not be possible to decipher as to which particular blow disabled such a trespasser and in the words of Holmes J. in Brown v. United States5
"...if the last shot was intentional, and may seem to have been unnecessary when considered in cold blood, the defendant would not necessarily lose his immunity if it followed close upon the others, while the heat of the conflict was on, and if the defendant believed that he was fighting for his' life."
The aforesaid passage, quoted in the judgment in a Full Bench decision of this Court in Victor alias Kalloo v. State of Madhya Pradesh6 has been strongly relied upon by the learned counsel for the respondents to support the contention that the right of private defence continued but never came to all end, although might have been exceeded. We are of the opinion that where a trespasser, as a consequence of the blows dealt on him, falls flat on the ground severely injured and unable thereafter to either cause any harm or even to remove himself from that property, it cannot be said that further blows on him would be justified on the ground that the heat of the conflict was on and in behalf that the defendant was fighting for his life or to save property.
8. The facts narrated by us above do show that after Kamal Singh, fell down injured he made no attempt to get up. The injuries on him show that the assault continued on him even thereafter. He could not thereafter move about of his own. The subsequent beating by them which resulted in death of Kamal Singh cannot be said to be in the right of private defence of property and cannot be excused. In our opinion, the respondents failed to justify the extent of harm they did to Kamal Singh under the colour of right of private defence of property which undoubtedly accrued to them when Kamal Singh committed trespass into their field. They exceeded that right.
9. Shri Datt, learned counsel for the respondents relied upon the decision in Baljit Singh and another v. State of Uttar Pradesh.7 In that case the accused-party was held to be in actual possession of the land and the complainant-party in its attempt to dispossess the accused trespassed on the land armed with lath is. The party of the accused in order to defend their property and person, assaulted the complainant-party including the deceased who received as many as 72 injuries, resulting in his death. Right of private defence of property and person was granted to the accused. However, from the number of injuries on the deceased, it was held that the right was exceeded and the case was held to fall within exception (2) to Section 300 I.P.C. The conviction was altered to Section 304, Part 1 read with Section 34, I.P.C. from that of Section 302 read with S. 34 I.P.C. It may be appreciated that in Baljit Sinah's case (supra) there were more than one person committing trespass. - They were armed with lathis and caused injuries to the accused-party also. There is nothing on record to show that the complainant-party was completely disabled and disarmed. Precisely for this reason, there is no finding if the right of private defence of person or property, at any time, came to an end before one of them died.
10. Shri Datt, learned counsel also referred to a few more decisions of the Supreme Court in Stare of Bihar v.Nathu Pandey and others8 and Lalji and others v. The State of U.P.9 These authorities lay down the rule of constructive liability when the right of private defence is exceeded and more harm than necessary is caused by a group of persons., and it is not ascertainable as to who actually exceeded that right in causing the injuries. These authorities do not indicate the circumstances under which the right to private defence of property or person would come to an end where it was no one exceeded.
11. In Nathu Pandey's case (supra) the finding of the High Court which was maintained by the Supreme Court was that theft of mahua fruits was committed by the party of the deceased, (who came duly armed with deadly weapons) under such circumstances as might reasonably cause apprehension that death or grievous hurt would be the consequence if the right of private defence was not exercised. Killing was therefore held justified, and the assembly whose common object was to defend property by use of force within limits prescribed by law could not be designated as unlawful assembly. In the other decision i.e. Lalji v. State of U.P. (supra) there was a fight between two groups. Persons on each side sustained injuries and one Pancham died as a consequence of a spear blow in the abdomen. Accused Lalji was found responsible for this blow. Further finding was that no party attacked the members of the opposite party at the commencement of the occurrence. At that stage there was only remonstrance and counter remonstrance. Some one then started the fight, but who began could not be ascertained. There was no pre-meditation and the occurrence was a sudden affair. Each of the convicted accused was, therefore, held liable for his own act, the assembly being not unlawful; Lalji who gave the fatal blow was held liable under section 304 Part I, I.P.C. and the remaining under Section 323, I.P.C.
12. Shri Datta also placed reliance on the decision of this Court in State of M.P. v. Shanker and four others.10 There the deceased was found to nave trespassed over the field of the accused and starting ploughing it. Servants were engaged by the deceased to plough the field and he watched the operations sitting on the embankment of the field. He was asked to stop the ploughing and withdraw from the field. He declined and did not submit to the threats. In these circumstances, right of private defence of property was conceded to the accused who were five in number. The counsel for the accused there conceded before Court that in continuing the assault even after the deceased fell down on the ground, the right was exceeded. Further in last but the paragraph of the report, it is observed:
"As for the respondents continued with the assault even after the deceased had fallen down to the ground, the right of private defence had come to an end and they had no right to continue with the assault on the deceased any further...”
In the ultimate analysis the accused were convicted only under Section 323, I.P.C. as the right of private defence was held have been exceeded.
13. Shri Rajendra Singh who addressed the Court on behalf of the applicant in Criminal Revision No. 381 of 1981, referred us the two decisions of the Punjab High Court in Ranjit Singh and another v. The State11 and Mukhtiar Singh and another v. State of Punjab12 and submitted that as soon as the wrong doer is rendered helpless and thus completely incapacitated to continue the wrong, right to defend comes to an end and any further act of violence would be punishable as an independent act completely divorced of the right to defend and not doer in exercise of the right to defend. Both these two cases deal with right of private defence of person. In Ranjeet Singh's case (supra) the deceased came to attack duly armed but was soon disarmed by one of the accused. The two accused then became armed while the deceased was rendered completely helpless. He turned on to escape but was chased and was beaten to death by the appellants. It was held that although the deceased started the attack, he was soon disarmed armed and the gandasi which he held was picked up by the accused Ranjeet Singh and after both the accused became armed, there could possibly be no right of private defence particularly when the deceased had started running away from the place. Similarly, in Mukhtiar Singh's case (supra) it was held that if a person is about to be hit by another by lathi or gandara there can said to have reasonable apprehension of danger to his body and as such he is entitled to beat back his assailant by administering blows to him and thereby disables him in exercise of right of private defence of body. But, as soon as he disables his adversary by infliction of blow or blows on his head and throws his adversary down on the ground, and there is nothing to show that the fallen adversary could stand up or make any attempt to do so, the apprehension disappears and the right of private defence of body comes to an end.
The gist, of these decisions thus clearly is that as soon as apprehension of danger to the body ceases as a consequence of the adversary becoming disable or helpless, the right of private defence comes to an end. The facts of both the cases disclose that either because the arms were seized or because of administering blows, the assailant was rendered helpless and disable, the apprehension of danger to the body came to an end. It was for this reason that the Court held that the right of private defence of person came to an end simultaneously with the disappearance of any apprehension of danger to the body. In our opinion, these cases are distinguishable from the facts of the present case where the assault is sought to be justified on the ground of right of private defence of property against a trespasser who does not with draw himself from the property, nor does he make any attempt to do so.
14. For what we have stated above, our conclusion is that as the deceased committed e trespass on the land of the accused-respondent s they had a right of private defence of property. That right continued so long as that criminal d trespass continued. In causing the death of Kamal Singh, the respondents however, exceeded that right. The evidence discloses (see statements of P.W. 2 Narain Singh and P.W. 3 Ram swaroop) that combined assault was made on the deceased Kamal Singh inflicting multiple injuries on him. All the three accused-respondents were already on the spot duly armed with lathi and ballam. The deceased was assaulted as sooner he entered into the field. The respondents must, therefore he deemed to have a common intention to assault the deceased by causing such bodily injuries which were likely to result in death. This common intention apparently developed on the spot, while the assault continued. In view of the dictum of the Supreme court in Baljit Singh's case (supra) (Para 19) the respondents, in the circumstances of the present case, must be convicted under section 304, Part I, I.P.C. read with Section 34, I.P.C.
15. For the aforesaid reasons, we allow the State appeal and alter the conviction of the respondents from Section 323, I.P.C. to that under section 304 Part I, I.P.C. read with Section 34, I.P.C. and sentence each of the respondents to seven years rigorous imprisonment thereunder.
Conviction altered