- (1.) 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 S. 302 and directed him to suffer rigorous imprisonment for life. It is against the said order of conviction and sentence that the present appeal is preferred.
(2.) The trial court on an appreciation of PWs 1, 5 to 7 concluded as under: "Thus the truth seems to be that when a Bhikari Pradhan and PWs 1 and 5 to 7 criminally trespassed into the disputed land and Bhikari Pradhan took the dominant role in taking his two pairs of bullocks and two hired labourers, 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 Pradhan who was 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 to the forcible ploughing of the disputed land by the deceased party, 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 S. 100 and 104, IPC. "
(3.) 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 Ex. 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 : "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 S. 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.;