- (1.) THIS is an appeal by Mod Singh against his conviction under sec. 304 I. P. C. by Sessions Judge of Bhilwara.
(2.) THE case relates to an incident which took place on the 1st of October 1947, on the border of village Jeewakhera and village Chandgarh. THE prosecution story is that there is some pasture land (Beer) on this border. THE accused is the jagirdar of village Chandgarh, while one Meghsingh of Balias is the jagirdar of Jeewakhera. Some dispute is said to have been going on between these two jagirdars about this pasture land. THE jagirdar of Jeewakhera claims the land to be his. Consequently on the 1st Oct. , 1947, 40 or 50 persons of Jeewakhera, who are apparently tenants of the jagirdar of that village went with their cattle which numbered some hundreds, to this pasture land in the morning at about 19 A. M. Information of this raid on the pasture land reached the accused. He is said to have come to the spot accompanied by 30 or 40 men of Chandgarh. It may be mentioned the villagers of Jeewakhera who had invaded this pasture land with their numerous cattle, were armed with lathis. THE accused arrived on the scene accompanied by his villagers numbering 20 or 40. Some of his villagers were also armed with lathis, and the accused himself is said to have been armed with a gun. He asked the villagers of Jeewakhera to desist from doing mischief to the pasture land (Beer) as he claimed that it was his. Jeewakhera people did not listen to him, and he, thereupon, ordered his followers to round up the cattle and drive them to Chandgarh, presumably intending to take them to the cattle pound in due course. On this Jeewakhera people started resisting the rounding up of the cattle. THEre is some difference in the story given by Dhanna P. W. I. in the Sessions Court in this connection, and the story which was given by him on an earlier occasion. In the Sessions Court, this time, he said that most of the villagers of Jeewakhera had gone away, (though he could not explain why it was so) and that only 5 or 7 persons had remained and persisted in stopping the rounding up of the cattle. One of these persons was Deva, and he told the accused that the cattle were in their own land, meaning thereby the land of the jagirdar of Jeewakhera, and that the accused had no business to take them away. It is said that on this the accused fired at Deva who fell down seriously injured. THEreafter the accused went away with the cattle, while Jeewakhera people took away Deva to their village and reported the matter to Meghsingh jagirdar. Meghsingh then had a report written out, which was sent to the Thana Bigorh, which is at a distance of about 11 miles from where the incident took place. The accused admitted that an incident took place on that morning at this Beer; but he claimed that the Beer belonged to him and he had been looking after it, and that Jeewakhera people came in a body with the deliberate intention of doing mischief to the grass, which he had preserved, in order to enforce the right of the jagirdar of Jeewakhera, even though that jagirdar had lost in the litigation with respect to this Beer long before. The jagirdar, Meghsingh, was also said to have come at the head of these people in order to take forcible possession of the pasture land. When the accused heard all this, he went to the spot accompanied by 8 or 10 persons, some of whom were jagirdar of neighbouring villages. He had taken these jagirdars in order that they might intercede, and explain matters to jagirdar Meghsingh. On reaching the spot, they found about 100 or 150 persons of Jeewakhera and about 400 or 500 heads of cattle. At their head was Meghsingh jagirdar riding on a horse and armed with a gun. The companions of Modsingh interceded Megh Singh who, however, refused to agree and insisted that his men would take possession of the land by having it grazed by their cattle. Thereupon, Mod Singh asked his friends, whose number is sold to be 8 or 10,. to round up the cattle, and when his friends began to do so, the people of Jeewakhera attacked them. At the same time Deva told jagirdar Meghsingh that the cattle were being taken away and that he should do something. Thereupon, Meghsingh fired at Modsingh who saved himself by hiding behind a buffalo, but the shot hit Deva and caused him injuries which resulted in his death. Thereafter Maghsingh went away with the party of Jeewakhera, and Modsingh was able to return to his village with the cattle which had been rounded up. The Sessions Judge accepted the case of the accused to a great extent; but he did not believe that part of the story which said that it was Meghsingh who had fired a shot at Modsingh and by accident Deva was injured. He was of the view that it was Modsingh who had fired the shot and caused injuries to Deva. He further took the view that Modsingh had the right of private defence of property, and that sec. 104 of the Indian Penal Code applied to this case, but that Modsingh had exceeded that right. Therefore, he convicted Modsingh under sec. 304 and sentenced him to eight years' rigorous imprisonment. We have been taken through the evidence in this case, and are satisfied that in the main the story given by Dhanna P. W. 1 with certain corrections in the light of what he had said previously is correct. We cannot believe that the accused when he came to know from his Shehna that 100 to 150 people of Jeewakhera headed by Meghsingh had come to the Beer with about 500 cattle in order to cause damage to it would go there with only 8 or 10 persons also unarmed. The facts, which we find clearly proved on the record from the statement of Dhanna in the Sessions Court and from what he had stated previously and which he changed later, are these. It is admitted by Dhanna that for the last 10 or 15 years the pasture land or Beer has been in the possession of the accused, and he had excluded Jeewakhera people and the jagirdar of Jeewakhera from the land. Dhanna also admitted in his earlier statement that the accused had won the litigation in that connection, though he did not admit it in the Sessions Court this time. It has also been admitted by Dhanna that Jeewakhera people deliberately decided on the morning of the 1st October 1947, to take forcible possession of this Beer which had been preserved by the accused and or which a Shehna was appointed by him after the rains in July. Therefore, 40 or 50 people of Jeewakhera, who are said to be a representative gathering containing one person from each household, went to this Beer with all the cattle of the village with the intention of getting the land forcibly grazed and thus doing damage to the grass which had been preserved for the last two months by the accused. These prase were armed with lathis and it is obvious that they had made up their mind to use force in case there was any protest. It is also clearly proved that the Shehna, who was looking after the land protested, but was naturally overawed and immediately left for Chandigarh to inform Modsingh. Dhanna's evidence further is that Modsingh came there armed with a gun with a following of 30 or 40 persons of Chandgarh. This appears to us to be very natural because, when Modsingh was informed that a mob of 50 or 60 persons armed with lathis had come to do damage to his peer, he was bound to bring his followers with him and come with the gun which he possessed. Immediately, on his arrival, Modsingh protested against this invasion of his rights. The people of Jeewakhera, however, insisted on grazing their cattle in that land. It seems to us that Meghsingh jagirdar was not present on the spot; but there can be very little doubt that he was behind the people of Jeewakhera, for we find that he was waiting in village Jeewakhera some distance away. When the Jeewakhera people did not desist from their action, the accused asked his followers to run up the cattle and take them to the village from where, we presume, they were to be taken to the cattle pound. When the followers for the accused began to do this. , they were resisted and Jeewakhera people attacked those who were taking away the cattle. Though Dhanna does not say so in his present statement in the Session Court what happened was this. This is clear from the fact that Dhanna, in his earlier statement, had said that there was Marpeet between some Jeewakhera people and some Chandgarh people. This is also clear from the fact that the first report mentions that there was an attack with lathis though,, of course, it is made out in the first report that the aggressors were Chandgarh people. We are, however, satisfied that as these 50 or 60 people of Jeewakhera bad gone deliberately to take possession of this land by force, and as lathis were in their possession, the attack must have come from their side when they found that the accused was having their cattle driven away with the help of 30 or 40 persons many of whom were also armed with lathis and whom he had brought from his village. That there was a lathi fight is also proved from the fact that seven persons on the side of the accused had lathi injuries while at least one person namely Nanda had lathi injuries on the side of Jeewakhera people. Further, though in the Sessions Court this time Dhanna wanted to make out that others had gone away before the gun was fired, and only 5 or 7 Jeewakhera people remained, yet in his earlier statement he had admitted that all the persons of both the sides were present when the gun was fired and that it was only after the gun had been fired that Jeewakhera people ran away. This seems to us to be right because it is reasonable that Jeewakhera people would not run away having come there to assert by force what they thought was their right, unless some drastic action was taken by the accused. It seems therefore that when the fight started and Jeewakhera people started beating the helpers of the accused, he fired a shot towards the Jeewakhera people. We believe that this was done to scare them away, and one of them namely Deva got injured. It has been suggested on behalf of the prosecution that accused deliberately fired at Deva simply because Deva had insisted on grazing the cattle there. It is true that the version given by Dhanna in his statement in the Sessions Court this time is that immediately after these words of Deva, the accused shot at him; but we find that actually it was not so. Deva was only one of the many persons who had resisted the rounding up of the cattle, and he may have said on behalf of all that the cattle would graze there as the land was that of their jagirdar; but the accused had no particular enmity with Dava, and we do not think that he shot Deva then and there. Dhanna had said earlier that the Jeewakhera people ran away immediately after the shot was fired. He had also said that there had been a fight, though this time he tried to avoid mentioning the fight. It seems, therefore, that after this exchange of words about the rounding up of the cattle Jeewakhera people attacked the helpers of the accused with lathis and caused them injuries. Some of these persons also used lathis, and we find that at least one person was injured on the side of Jeewakhera people. It was after this lathi fight that the accused must have fired the shot in order to scare away Jeewakhera people. These then are, in our opinion, the facts. The question arises whether on these facts the accused had a right of private defence of person or property, and if so, whether he exceeded both. So far as private defence of property is concerned, we are of opinion that the Sessions Judge is right in his view that the accused had right of private defence of property. After the admission of Dhanna P. W. I, that the accused had been in possession of this land for the last 10 or 15 years and after his statement earlier that the accused had own in the litigation with respect to this land, and that the Jeewakhera people went deliberately that day to take forcible possession of the land by having it grazed by their cattle, it is clear that the accused had the right of private defence of property inasmuch as the grass, which had been kept for two months, and which had grown high, was being damaged. Jeewakhera people formed an unlawful assembly and were guilty of offences under secs. 143, 426 and 447 I. P. C. The accused, therefore, had the right of private defence of property under sec. 97 of the Indian Penal Code, and its extent would certainly be as given in sec. 104 of the Indian Penal Code. It was urged that even if the accused had the right of private defence of property, those whom he took with him did not have that right. We cannot accept this contention for a person is entitled to take help from others in such cases. It is enough to refer to the words of sec. 97 in this connection which provide that every person has a right to defend the property, whether movable or immovable, of himself or of another person. Therefore the accused had the right to defend his own property, while his helpers had the right to defend the accused's property. In exercise of that right of private defence of property, the helpers started rounding up the cattle in order to take them to the cattle pound. They were at this stage attacked by Jeewakhera people with lathis and injuries were caused to about half a dozen of them. We are of opinion that at this stage the right of private defence of person also accrued to the accused and his helpers when Jeewakhera people started attacking them with lathis. The learned Sessions Judge has not considered this aspect of the matter at all. If the accused had only the right of private defence of property, the question might have arisen whether he had exceeded that right or not. But when to that right is added the further right of private defence of persons, we are of opinion that there can be no question of exceeding the right of private defence of person in this case. Section 97 of the Indian Penal Code says that every person has a right to defend his own body and the body of another person against any offence affecting the human body. Even though, therefore, the accused may not have been attacked by those who were plying lathis, though the evidence is that a stone was thrown at him and it injured his hand, he was certainly entitled to defend the body of his helpers who had come to aid him to maintain his right of private defence of property. The question then is as to the limits up to which he could go. We think that the second clause of sec. 100 ¦ of the Indian Penal-Code covers this case. That clause provides that the right of private defence of person extends to the voluntary causing of death or of any other harm to the assailant if the, offence, which occasions the exercise of the right, be such an assault as may reasonably cause the apprehension that grievous hurt would otherwise be the consequence of such assault. In the present case, the right of private defence of person arose because of the attack by Jeewakhera people with lathis on the helpers of the accused. We feel that an attack by lathis must in every case lead to a reasonable apprehension that grievous hurt might be caused if steps are not taken to defend the person attacked. The accused has not set up the right of private defence in so many words. He obviously could not do so because the case put forward by him was that he had not fired the shot and that it was Meghsingh who had done so. But the case of private defence of property as well as person is, in our opinion, established from the evidence of the prosecution itself, and particularly the statement of Dhanna P. W. 1 including what he had said on earlier occasions. It has been urged that it has not been proved that Deva deceased was one of the persons who actually started beating Chandgarh people. This may not have been proved, but Deva was a member of the unlawful assembly which had come armed with the deliberate intention of taking possession of this land by force. He still remained a member of this assembly and was all along protesting that the land was their and they would remain there. It is also obvious that members of this assembly must have decided from the very beginning that they would use force if anybody resisted them in their illegal purpose. That is the reason why they had all gone armed with lathis. Therefore, if some members of this assembly started beating Chandgarh people, the right of private defence of person arose against all the members of the assembly for they were all guilty of causing hurt read with sec. 149 I. P. C. If under these circumstances, the accused thought that he might avoid further blood-shed and a serious lathi fight by firing a shot and thus save his friends who had come to help him in exercise of his right of private defence of property, it cannot be said the he thought wrongly, particularly when we see that the result of one shot was that the fight immediately stopped, all the Jeewakhera people ran away, and the accused was able to round up the cattle which were damaging his pasture land. We may point out that if in this lathi fight, which undoubtedly took place, some one on the side of the Jeewakhera people had been killed by a lathi blow, there would undoubtedly be the right of private defence of person on the said of Chandgarh people. If makes no difference in the circumstances if the accused fired just one shot in order to defend his friends who had been attacked with lathis. It was urged finally that the accused had time to take recourse to the authorities, and therefore, he should not have gone to the spot at all to defend his property which was in danger of being wasted by the invaders. The Sessions Judge has held, and we think rightly so, that there was no time within which the accused could take recourse to the authorities. The Thana is 11 miles away and help could not have come within less than four hours. The information supplied to the accused was that about 100 to 150 people accompanied by 400 to 500 cattle were in his pasture land determined to have the grass grazed. If he had gone to the Thana and even if he could procure assistance very promptly, it would have taken him at least four hours and by that time all the grass which he had preserved for two months would have been destroyed. Under these circumstances, there was no time to take recourse to the authorities for the protection of his pasture land. Of course, when his followers were being beaten with lathis, there was no time for him at all to do anything except to put some terror into the hearts of Jeewakhera people and thus scare them away. If he decided to do so by firing one shot, we think under the circumstances he was justified. We have already pointed out that the results also justified his firing one shot because the lathis fight, which might otherwise have become serious, stopped at once and Jeewakhera people ran away, and probably more deaths, which might have occurred, were avoided. Under these circumstances; we are of opinion that the accused had the right of private defence of person and property, and that right was not exceeded in this case. We, therefore, allow the appeal, set aside the order of the court below and acquit the appellant. . ;