Somasundaram, J. -
(1.) KANAKARAJ , the Appellant herein, stands convicted and sentenced by the learned Sessions Judge, Chingleput, to suffer R.I. for four years under Section 304 Part I, I.P.C. With four others, since acquitted, the Appellant stood indicted under Section 304 I.P.C. in the following circumstances. The Appellant is the brother's son of Jagannathan, the deceased in this case. Between these two persons, there were disputes about a vacant site which is situate at Madurevoyal. Some days prior to 30th June, 1968, the first accused had put up a hut in this site. He lived there with his concubine, the fifth accused. The Appellant began to cut the trees in this land, On 30th June, 1968, a Sunday, with P.Ws. 1, 3 and 6, Jagannathan went to the site at 8 -45 a.m. The first accused Was standing in his house, which adjoins this site. Jagannathan told him that they were going to measure the land and asked him to inform this to the Appellant. The first accused warned him that if he did it, there would be trouble. The Appellant who was observing this conversation from a spot about 40 feet away, rushed to the spoti jagannathan and P.W. 1 began to measure the site. The time then was 9 -15 a.m. The first accused caught held of his hands and asked him to stop further measurements. This Appellant stabbed him in the left side of the abdomen with a knife. P.W. 1 came and caught him. Accused 3 and 4 came to the place with iron pipes. The third accused hit P.W. 1. with a pipe and released this Appellant from the clutches. The Appellant then took to his heels. The fourth accused then beat P.W. 3 and Jagannathan with an Iron pipe. P.W. 12 came and wrested the pipe from the third accused. The fifth accused cane with water mixed with chilly powder and sprinkled the same ever the party. Jagannathan was transported in a jeep which came along that road, to the General Hospital. On the way, at the Maduravoyal police station, P.W. 1 stopped the jeep and gave the report Ex. B. 1 to the Sub -Inspector P.W. 15, Dr. Thyagarajan (P.W. 4) attached to the General Hospital, examined Jagannathan and found on him an incised wound, 1" below the left upper and over the left costal border. He admitted him in the Hospital. The injured died at 1 -15 p.m. on 1st July, 1968. P.W. 17, the Inspector, took up further investigation. The Appellant was not available for arrest -On 1st July, 1968, the third accused had appeared in the station and given the complaint Ex. P, 11. He had injuries his person. Dr. Gopalakrishnan, (P.W. 2). who did the autopsy, observed that the incised wound in the abdomen had penetrated the abdominal cavity, the lobe of the liber, the stomach and large intestines. He opined that death was dee to general peritonitis resulting from complication from the stab jury to the stomach and large intestine. He further stated that this injury was sufficient in the ordinary course of nature to cause death. The Appellant was put up for trial along with the other four persons. When questioned in court, he stated that the site was in his exclusive possession and enjoyment, that the deceased came with a party to take forcible possession, that the first accused warned him not to do it, that despite this warning, he commenced measurement, that when he (Appellant) obstructed, P.W. 3 attempted to stab him and that the stab thus aimed slipped and hit the deceased in the abdomen. The learned Sessions Judge arrived at the conclusion that this Appellant had a right of private defence to protect his property, but convicted him under Section 304 Part I, I.P.C. observing that he had exceeded his right. He has acquitted the other four persons who were also charged. The Appellant challenges this conviction and contends that the learned Sessions Judge should have acquitted him holding that he had a clear right of private defence in the matter.
(2.) THE fact that there was some disturbance in the land at Maduravoyal at about 9.30 or 10 a.m. on 30th June, 1968, does not admit of any doubt. The further fact that Jagannathan sustained a stab injury on that day, in that place, at that hour, is also clear. The prosecution case is that when Jagannathan and his sons began to measure the land, the first accused held him and the second accused came and stabbed him. P.Ws. 1, 3, 6 and 7 to 11 have deposed to this. The Appellant's version is that P.W. 3 came to stab him and that this aim slipped on Jagannathan and wounded him, There is more of ingenuity than of any substance in this defence. The medical evidence shows that this wound in the abdomen was 20 cms. in length and it had cut the costal arch end penetrated into the abdominal cavity, lobe of the liver and large intestines. Certainly such an injury could net have been caused by an accidental slip of the knife. The eye witnesses examined in the case have unilaterally sworn that it was this Appellant who caused this injury and there is no reason to disbelieve them. The next question for consideration is as to whether in the circumstances adverted to by the prosecution; the Appellant had any right of private defence to defend either his persons or his property. The learned Sessions Judge in paragraph 16 of his judgment observes that It is only 'by straining the facts' it can be said that there was some scope for the accused to lay that he could have inflicted the stab in the exercise of that right of private defence. Section 97 I.P.C. provides that every person bag a right subject to the restrictions contained in Section 99 to defend, first his own body and the body of any ether person against any offence affecting the human body, and secondly the property, whether moveable or immovable, of himself or of any other persons against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. Section 99 states that there is no right of private defence against any act which does not reasonably cause an apprehension of death or of grievous hurt, if done or attempted to be done by a public servant acting in good faith. There is also no right in cases in which there is time to have recourse to protection to public authorities and in no case it extends to inflicting more harm than it is necessary to inflict for the purpose of defence. This right extends to the causing of death in cases of robbery, house -breaking by night, mischief by fire to any building, etc., theft or house trespass, under such circumstances as may reasonably cause an apprehension that death or grievous hurt will be the consequence if such right of private defence is not exercised. There is no evidence that the members of the prosecution party were armed with any weapon, so as to cause any reasonable apprehension in the mind of the Appellant and his men, either of death or grievous hurt. There is also no evidence en the side of the Appellant to show that he was in actual possession of this site. On the day in question, Jagannathan and his sons had gone to this place only to put up a shed after measuring the site. The time then was 8 -45 a.m. The Maduravoyal police station is nearby. On the way, Jagannathan had told the first accused that they were going to measure the land. The latter replied that if he did it, there would be unnecessary trouble. This Appellant was standing at some distance, hearing this conversation. When Jagannathan commenced the measurements, the first accused came and caught his band. This Appellant rushed to the spot straightaway and stabbed Jagannathan in the abdomen. There was no justification whatsoever for his inflicting such a stab, when nothing in fact had happened, on a person who was unarmed. Jagan -nathan's son P.W. 1 had sworn that the Appellant has put up a shed not on the site, but in a place just opposite to the hut of the first accused, which adjoins this land. He has denied the suggestion that they were there to take forcible possession.
(3.) THUS , the Appellant has not shown that he was in exclusive possession of this site, by evidence, either oral or documentary. What all Jagannathan had done was this: He had gone to the land with his sens and commenced measuring it with a tape. There is absolutely no justification whatsoever for this Appellant to rash towards him and stab him in the abdomen. The rule as regards the criminal trespass is that a person in actual peaceful possession of a land, cannot be dispossessed by mere use of force, and he has a right to maintain possession by the use of necessary force if any one attempts to assail it; but it does not justify more. In the case reported in Narayana Rowth, In re,, 27 Pat. 35:, 49 Cri.L.I. 406, A was in possession of a certain land and this land was not under any crop. B and his party went there to dispossess A by ploughing it. It was held that mere ploughing did not produce any immediate harm, there was ample time to have recourses the public authorities for the protection of his rights, that A was not entitled to exercise the right of private defence and that his striking and killing B amounted to murder. The Appellant in this case also had no right of private defence either of the person or of the property, as found by the learned Sessions judge. When that is the case, no question of exceeding that right arises as held by him. Clearly the offence is one of murder. But, the State has not chosen to challenge the finding of the learned Sessions Judge.;