Decided on July 30,2002

STATE OF BIHAR Respondents

Cited Judgements :-



- (1.)There are five appellants in this appeal and all of them have been convicted under section 302 read with section 149 of the indian Penal Code and sentenced to undergo rigorous imprisonment for life by the learned additional sessions judge, III, deoghar, Bihar. The High Court, in appeal, came to a definite finding that the prosecution has proved that the appellants participated in the crime in the manner as alleged by the prosecution and their action is not protected by the right of private defence of the person or property and as such, their appeal was dismissed resulting in the filing of the special leave petition and the subsequent grant of leave by this Court.
(2.)The principal contention as urged by the learned counsel in support of the appeal, however, has been that the sentence under section 302 ought to be converted to section 304 part II IPC by reason of the factum of availability of the plea of right of private defence. It has been rather strenuously contended that since the prosecution party was the aggressor on the land belonging to the accused persons and there being a right to protect the property, the doctrine of private defence ought to be made applicable in terms of the provisions of section 97 of the Indian Penal Code. This contention, however, though raised before the High Court but the latter, however, negatived the plea on the ground that section 97 is subject to the provisions of section 99 wherein certain restrictions have been imposed. It has further been contended that since it is a matter of degree only and in the event there might be some excess in the matter of exercise of such right of private defence, the same should prompt the court to convert the offence from one under section 302 to section 304 part II.
(3.)In the present case the evidence on record depicts that the land was in possession of the accused and the prosecution party had gone to the land and ploughed the same for some time and, it is on that, the accused persons arrived on the scene and assaulted the former resulting in three deaths. We are not inclined to go into the injuries suffered to since there has been no dispute as regards these injuries and factum of death and the only plea taken before this Court is that of private defence. It is now well settled 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. Admittedly, in the factual context the land was vacant and if the prosecution party had gone there to plough the land then that would not entitle the owners of the land, being the accused persons herein, to take recourse to brutally assault them resulting in the death of three persons as noticed hereinbefore. Strong reliance was placed on the decision of this Court in Munshi ram and Others v. Delhi Administration 1998 (2) SCR 455 wherein this Court placing reliance upon an earlier judgment in Jai Dev v. State of Punjab, 1963 (3) SCR 489 came to a conclusion on the basis of the fact situation of the matter under consideration in Jai Dev (supra) it cannot be said that the appellants had exceeded the right of private defence. This Court, however, observed, it is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law, he is entitled to defend his possession even against the rightful owner. The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. In jai Dev v. State of Punjab, this Court observed that in a well-ordered civilised society it is generally assumed that the state would take care of the persons and properties of individual citizens and that normally it is the function of the state to afford protection to such persons and their properties. This, however, does not mean that a person suddenly called upon to face an assault must run away and not protect himself. He is entitled to resist the attack and defend himself. The same is the position if he has to meet an attack on his property. In other words, where an individual citizen or his property is faced with the danger that immediate aid from the state machinery is not readily available, the individual citizen is entitled to protect himself and his property. This illustration of law as in Jai Dev (supra) stands out to be the well settled principle for almost four decades ago and there is no contra note sounded till date. The factual matrix of the matter under consideration, however, is not the same as in the judgment. The aggressors had started ploughing the field and the appellants had time to go and report the matter to the appropriate agencies provided under the law but instead of doing so they took the law in their own hands and started brutally assaulting the other party on the land - this is not permissible in a civilised society in the 21st century. Rule of law ought to be the guiding factor. The law is crystal clear on this score and reference may be made to section 97 read with section 99 and section 105 of the Indian penal Code. The High Court considering the aforesaid view in a very detailed judgment came to the conclusion that the appellants had no right of private defence and as such question of exercise of such a right or in excess of such a right does not arise warranting the interference of this Court in converting the conviction under section 302 to section 304 part II. We do record our concurrence with the finding and observations of the High Court and as such this appeal fails and is dismissed.

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