Order
1. The respondents, who are father and son, were convicted by the trial court for offences under Sections 326, 324 read with Section 34 IPC. Their conviction was maintained in appeal by the Court of Session. The High Court, however, in revision, upset the convictions primarily on the ground that a right of private defence of property arose in favour of the respondents in justification of the crime. The State of Karnataka challenging the same is before us in appeal.
2. There were two persons who were subjected to assault in the incident. One was Marigowda PW 3, who on examination by Dr S.D Eswara PW 7, was found to be having two injuries. Injury 2, undeniably, was simple in nature though caused with a sharp-edged instrument. Injury 1, however, was described as an incised clear-cut gaping wound measuring three inches in length, muscle deep one inch wide, situated obliquely from above downwards right to left, three inches above the right wrist joint in the front. Under that wound tender muscle nerve had been cut clearly. The doctor opined that the said injury was grievous in nature as the tender muscle nerve had been cut. It is this injury which attracted conviction under Section 326 IPC. It appears that the courts below did not go into the question of nature of the injury. We have grasped its description carefully. In our view, the injury does not fall within the ambit of Section 320 IPC to be called a grievous one. It has to be termed as a simple injury like the other one. Thus, we have on the person of Marigowda, two simple injuries and on Vishakantegowda, PW 1, the other injured person, two simple injuries found on examination by Dr H.K Basavaraju PW 8. The conviction of the respondent would thus, if at all, have to be under Sections 324/34 IPC alone.
3. Amongst the two accused respondents, the father is the full brother of the two victims. Statedly, there was some dispute between the parties over the partition of their joint lands. The survey number in which the occurrence took place was alleged to be ‘joint’ by the complainant side, but, as alleged by the defence, to have fallen to the share of the respondents by means of a private partition. The High Court took the view that since the respondents had alleged a private partition and the prosecution had not been able to dislodge that claim, it must be assumed that the respondents were in possession of the survey number in which the occurrence took place, where the injured PWs were grazing their cattle, which was objected to by the respondents, followed by the assault. In the absence of any clear-cut evidence led by the defence about the actual partition of the land, mere suggestion would not give them the right of private defence of property. Significantly, private defence of person has not been pleaded. It is nobody's case that the said field had any crops standing thereon. The simple act of grazing cattle would not, by itself, give to the respondents the right to private defence of property. Thus, when the occurrence is not denied, they must bear the brunt of causing simple hurts to the PWs.
4. Accordingly, their acquittal under Sections 324/34 IPC is set aside. They are convicted of the said offence and punished, at this distance of time, to imprisonment of the period already undergone plus payment of fine of Rs 1000 each, in default of payment of which they shall further undergo two months' RI.
5. The appeal is partially allowed with the afore-result.