- (1.) B. K. Sharma, J. This is an appeal against judgment and order dated 12-9-19fcc passed by Shri M. P. Singh, the then Additional Sessions Judge Goprakhpur in Session Trial No. 396 of 1978, State v. Jokhan Chaudhari and five others, whereby he convicted Jokhan Chaudhari, Ram Beer and' Ram Snehi, accused for the offences under Section 148, 304, Part II 324/149, 323/149, IPC and convicted the remaining accused, Ram Raj, Parashuram and Bhagwatt Chaudhari for the offences under Section 147 304 Part 11,324/149 and 323/149, IPC and sentenced Jokhan Choudhari and Ram Beer, accused to undergo for RI for a term of one year for the offence under Sec. 148, IPC, RI for a term of three years for the offence under Section 304 Part 11, IPC, RI for a term of two years for the offence under Section 324/149, IPC and RI for a term of six months for the offence under Section 323/149, IPC and sentenced the accused Ram Raj and Bhagwati Chaudhari to undergo RI for a term of six months for the offence under Section 147, IPC, RI for three years for the offence under Section 304, Part II, IPC, RI for a term of 2 years for the offence under Section 324/149, IPC and RI for a term of six months for the offence under Section 323/149, IPC and further directed that accused, Ram Snehi and Parashuram to be released on proba tion on entering into a personal bond for Rs. 1000 and two sureties each of like amount to maintain peace be and to be good in behaviour for a period of two years and ro appear and receive sentence, when called upon during the aforesaid period.
(2.) I have heard the counsel for the accused/appellant and the learned A. G. A. In this case the broad established facts are that an occurrence took place on 7-7-1978 at about 8. 00a. m. in village Judiyan P. S. Shahjanwa, District Gorakhpur at the place where the field of com plainant, his brother Mahanand (deceased), father Lalsa, paternal uncles Raja Ram, Ram Pyare and Sudama and that of Jokhan Chaudhary accused/appellant were situated, in which Jokhan Chaudhary accused/appellant inflicted blow with spear on the body of Mahanaad deceased) causing a punctured wound 1/2 cm. X 1/4 cm. X the cavity deep which caused cut fracture of the III Rib of left side and also caused through and through wound In the left lung. Rambeer Chaudhary, accused/appellant inflicted injury with Bhala and Parsu Ram and Bhtgwati accused/appellants inflicted injury with lathi to Faujdar informant, Ram Sanehi accused-appellant inflicted injury with lathi on the body of Ram Pyarey and Parsu Ram and Ram Raj accused-appellant Inflicted injury with lathi on the body of Ram Surat. The injuries of Faujdar, Ram Pyarey and Ram Surat injured were all simple in nature as revealed by their injury reports recorded by the medical officer which were on record. The accused/appellants Ram Sanehi, Jokhan Chaudhary, Parashu Ram and Ram Raj had also received injuries in the transaction. Their injuries are recorded in the G. D. entry about their arrival at the Police Station (Exb. ka 12 ). In fact, a cross case has been lodged at the Police Station by Jokhan Chau dhary, accused-appellant though a final report was submitted therein. It it claimed by the defence that Ram Raj, accused/appellant had even suffered a fracture and one Ram Pyarey also suffered simple injuries from the defence side in the same occurrence though there is no material on record in regard to his injuries. The Sessions Judge believed the prosecu tion evidence and found on a consideration of the same that Faujdar PW 1, Ambika Prasad, PW 2 Kedar PW 3, Dulare PW 4 were working in the cultivatory plot when Jokhan and other accused/appellants reached at the place of incident where Ram Pyarey was straightening the common maind of his chak and the chak of Jokhan Chaudhary, that Jokhan Chaudhary asked Ram Pyare not to do and thereafter Jokhan Chaudhary, accused/appellant instigated other accused/appellants to kill Ram Pyarey. He further found that there was no allegation that the accused persons had any intention to kill the deceased and that from the injury sustained by Ram Pyarey injured, it appears that the accused/appellants had no inten tion to kill him as on the prosecution evidence, the accused persons went away as soon as Mahanand deceased fell down due to blow of spear and that while Ram Pyarey was straightening the mend, PW 1 Faazdar and others were armed with lathi and when the accused/appellants saw them at their field, they went to the place of incident with the object of preventing 'him if necessary to prevent Ram Pyarey from doing so with application of some force, that Jokhan Chaudhary, accused/appellant pursuaded Ram Pyarey not to straighten the mend but on the asking of the accused persons when Ram Pyarey refused to stop from doing so, a free fight ensued between the parties and this fight sloped as soon as Mahanand received spear blow on his chest and fell down. With the above findings and obser vations, he handed down the conviction and sentence. The main argument of the learned counsel for the accused/appel lants was that on the prosecution case as given the FIR and as disclosed in their evidence at the trial, by the informant injured Faujdar PW 1 and by others as well, it is clear that a case of the right of private defence of pro perty was made out. In the FIR, it has been narrated that 8 days before the said occurrence, Jokhan Chaudhary accused/appellant has demolished the mend of the chak of the complainant party and that in respect of if the informant's maternal uncle Ram Pyarey had shown to the villagers that Jokhan Chandhary, accused/appellant has encroached his land in the width of 1 cubit and the same FIR further stated that on the date of present occurrence in the morning, Ram Pyarey was straightening mend and the corner of the chak, "aaj Subah Prarthi Key Chacha Earn Pyarey Apney Chak Ka Kona Mend Ke Sidh Men Kar Rche they. " After it there was a narration of the accused/appellants coming there armed with lathi and Bhala and preventing Ram Pyarey from demolishing the corner of the chak and that whereupon, an altercation ensued and then Jokhan Chaudhary accused-appellant exhorted his companions and then accused party started assaulting them. At the trial the informant Faujdar repeated the same story about the present occurrence stating that Ram Pyarey was straighten ing his mend and the accused-appellants came there and started stopping Ram Pyarey from doing 'gorayee' and when he did not stop, Jokhan Chaudhary exhorted his companions and then they assaulted. In the same examination-in-chief, he stated that 8 days before the occurrence, Jokhan Chaudhary accused-appellant has demolished the mend of Ram Pyarey whose complaint had been made by Ram Pyarey in the village. It was elicited fiom him in his cross-examination that no FIR had been lodged from the side of Ram Pyarey about the demolition of Mend by Jokhan Chaudhary accused-appellant 8 days earlier nor any complaint has been lodged from his side to the Superintendent of Police etc. He admitted that Jokhan accused-appellant has lodged a FIR against him and his house holders about the demolition of Mend on 30-6-1978. In other words, the grievance of Jokhan Chaudhary, accused-appellant was that his Mend has been demolished and thereby his land has been encroached and not vice versa. However, on the prosecution evidence itself it comes out that the encroachment over the land of Ram Pyarey had been made by Jokhan Chaudhary, accused-appellant 8 days prior to the occurrence and on the date of the occurrence i. e. 8 days after the encroachment had already been made and instead of taking recourse to remedy according to law Ram Pyarey and, his men (the complainant party) came to the spot and Ram Pyarey started the restoration of his Mead i. e. to say tried to take back the possession over the encroached land. Therefore, under these circum stances the right of private defence of property did accrue to the accused-party and therefore it cannot be said that any unlawful assembly has been formed by them or that they had committed any offence under Sec tions 147, 148, 304, Part II, 324/149 and 323/149, IPC by any of the accused-appellants namely, Ram Raj Chaudhary, Rambeer, Bhagwati Chaudhary Ram Snehi and Parashu Ram. The injuries inflicted by them being only simple in nature and none of them can be said to have executed the right of private defence. It is also to be kept in mind that where any one acts in exercise of the right of private defence of property (or person) of himself or of any other person, the act of each person exercising that right would be considered separately. In other words, it will be seen in each indivi dual case whether he has exceeded the right of private defence aforesaid or not a id he cannot be made constructively liable for any acts done by any other person which may amount to exceeding the right of private defence whether of person or property. None of them taken individually can be said to have exceeded the right of private defence of property. So far as Jokhan Chaudhary accused-appellant No. I is concerned, the offence under Section 148, IPC would be negatived and Section 149, IPC may not be pressed into service for convicting even him in view of what we nave observed above. However, taking the prosecution evidence and the circumstances from any angle, it is obvious that in any event he has exceeded the right of private defence of property in causing the death of deceased Mahanand.
(3.) SECTION 97, IPC enacts the right of private defence of property against any act which amounts to mischief or criminal tress pass or an attempt to do so. Under SECTION 99, IPC, the right of private defence in no case extends to the inflicting or more harm than it is necessary to inflict for the purpose of defence. Under SECTION 103, IPC, the right of private defence of property extends to the vouluntary causing the death or of any other harm to the wrong-doer in case the offence which occasions the exercise of the right be an offence of any of the descriptions hereinafter enumerated namely: Secondly-House breaking by night. Thirdly-Mischief by fire. . . . . . . . . . . . Fourthly-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. None of the ingredients of Section 103, IPC are oven remotely attracted in the present case. So here the case 'squarely' falls under excep tion 2 of Section 300, IPC which relates to exceeding the right of private defence of property in good faith without pre-meditation and without any intention to do more harm then it is necessary for the purpose of such defence. This action will be an offence punishable under Sec. 304, Part II, IPC. Since it was a case of exercise of right of private defence the accused- appellant Jokhan Chaudhary will not be made constructively liable for the offence of inflicting injuries on the injured persons by others by their weapons.;