Madhya Pradesh High Court
Latel S/O Sanchi Satnami And Ors. vs State Of M.P. on 15 April, 1998
Equivalent citations: 1999(1)MPLJ690
Author: A.K. Mathur
Bench: A.K. Mathur
JUDGMENT S.K. Kulshrestha, J.
1. The above 12 appellants have preferred this appeal against the judgment dated 23-4-1992 of the learned IIIrd Additional Sessions Judge, Bilaspur, in Sessions Trial No. 39 of 1988, by which the appellants Latel, Chandrabhan and Bhajan have been convicted for the murder of Sahdev Tiwari under Section 302 of the Indian Penal Code, accused Latel and Bhajan have also been convicted for the murder of Ashok Kumar, an offence under Section 302, Indian Penal Code, and each has been sentenced to life imprisonment and other accused have been convicted for the said two offences of murder with the aid of Section 149 and each has been sentenced to undergo imprisonment for life. Accused Bhajan and Chandrabhan have also been convicted for offence under Section 307 for causing injuries to Vijay Kumar and each has been sentenced to undergo R.I. for 5 years, while other accused have been convicted of the said offence with the aid of Section 149 and each has been sentenced to R. I. for 5 years.
2. It has not been disputed that an agricultural land bearing survey No. 435/1 area 1.71 acre was the subject matter of dispute between accused Latel and deceased Sahdev Tiwari. It is also not disputed that accused Latel had initiated proceedings in the Court of Sub Divisional Officer, Mungeli, under the provision of M.P. Samaj Ke Kamjor Vargon Ke Krishi-Bhumi Dharakon Ka Udhar Dene Walon Ke Bhumi Handapane Sambandhi Kuchakron Se Paritran Tatha Mukti Adhiniyam, 1976 and the application was allowed by the S.D.O. vide order dated 2-4-1985. It is also not disputed that on 5-7-1987, the date of the incident, deceased Sahdev, his son Ashok, his son Vijay Tiwari (P.W. 10). Jeetram, Manharan, Rajaram and the labourers had gone with a plough to this land for sowing. The case of the prosecution, in brief, is that the deceased Sahdev had purchased the said land Khasra No. 435/1 from accused Latel and one Puniram on 25-4-1962 for a consideration of Rs. 1,750/- and had obtained its possession and there was a dispute between deceased Sahdev and accused Latel with regard to the said land. Accused Latel had filed an application before the Sub Divisional Officer, Mungeli, in the year 1982 under the provision of said Act, and the S.D.O. by his order dated 2-4-1985 had allowed the said application against which deceased had preferred an appeal before the Additional Collector, from Bilaspur. The Additional Collector had allowed the said appeal by his order dated 30-6- 1986 and had remanded the matter to Sub Divisional Officer for his decision in accordance with law. In view of the dispute between the parties and the apprehension of the breach of peace, proceedings were also initiated under Section 107 read with Section 116 (3) of the Criminal Procedure Code before the Sub Divisional Magistrate, Mungeli. However, upon remand of the said case by the Additional Collector, the Sub Divisional Officer, Mungeli by his order dated 6-4-1987 held that it was not proved by accused Latel that it was a transaction of loan and further that accused Latel was a marginal farmer and, accordingly, holding that deceased Sahdev had purchased the said land from accused Latel on 25-4-1962, the application of accused Latel was rejected. It was also alleged that deceased Sahdev had, on 14-6-1987, sought police protection apprehending danger from accused Latel and had also sent an application Ex.P/28 in this behalf to the Collector and the Superintendent of Police.
3. The case of the prosecution is that on 5-7-1987, the deceased Sahdev along with his sons deceased Ashok and P.W. 10 Vijay Kumar, his agricultural labourers and companions of his son Ashok Tiwari had gone to the disputed land for sowing. No sooner they started to plough their land, all the accused came there armed with deadly weapons and accused Latel, Chandrabhan and Bhajan then surrounded them and exhorted all accused persons to kill them. All the accused then conjointly assaulted the complainant party, accused Chandrabhan and accused Bhajan, each assaulted P.W. 10 Vijay Kumar with 'Tabbal' and his brother Ashok was assaulted by accused Latel and Bhajan, each by means of 'Tabbal'. As a result of the said murderous assault, Ashok and Vijay fell down on the ground and became unconscious. On regaining consciousness, P.W. 10 Vijay Kumar witnessed that accused Bhajan, Latel, Chandrabhan and Bundaru were assaulting his brother Ashok with 'Tabbal' (a sharp weapon) and 'lathi' (stick). The companions of deceased Ashok implored the accused not to beat them but the accused persons persisted. However, on finding an opportunity, P.W.10 Vijay Kumar and his father deceased Sahdev ran from the place to save their lives.
4. The prosecution story further alleges that accused Latel, Chandrabhan and Bhajan, each with a 'Tabbal' in his hand, and the other accused chased Vijay Kumar and his father and one dark complexioned person threw a 'Tabbal' at them. P.W. 2 Lalakram and other persons in the neighbouring field asked the accused persons not to beat them but the accused still followed them, stating that they would kill Sahdev. In order to save himself, P.W. 10 Vijay Kumar turned towards his house and on way, met Chedilal Sharma and along with him, he went to the police station, Mungeli, where he lodged report Ex.P/27, which was recorded by the S.H.O. P.W.21 C.K. Tripathi. At the time this report was lodged, P.W. 10 Vijay Kumar had no knowledge whether his father Sahdev was dead or alive. The police registered the case as Crime No. 138/87 under Sections 147, 148 and 307 of the Indian Penal Code. The police immediately rushed to the village and learned from Kotwarin Rambai (D.W. 1) that Ashok and Sahdev had been murdered and, accordingly, a village unnatural death information Ex.P/35 was recorded. Accused Latel, also lodged a report at police station, Mungali on that very day, stating that he was in possession of the agricultural field since long and had sown his crop about 8 days prior to the incident but deceased Sahdev and Ashok along with Vijay and servants had come to the field and had belaboured them. This report was recorded in the general diary at Sr. No. 170 (Ex. P/36).
5. On 5-7-1987, the S.H.O. sent Vijay Kumar after recording his report for medical examination and on reaching village, Kheda, he held inquest on the dead body of Sahdev lying in 'Sajnakhar' and Ashok Tiwari, lying in 'Bakakhar', in the presence of the witnesses. The blood stained and plain earth samples were seized and the articles lying near the dead body of Ashok namely a 'Lathi', a 'Kalari' and a 'Tangia' were seized under memo Ex.P/50, a bag of manure, a bamboo basket and a bamboo stick were seized under memo Ex. P/l and accused Latel, Sanat, Chandrabhan and Bhajan were sent for medical examination. In further sequel of investigation, the clothes and the weapons of offence, as discovered at the instance of the accused persons, were seized by the police.
6. Dr. N. S. Chandel (P.W. 20) was posted as Assistant Surgeon in the primary health Centre, Mungeli, and on 5-7-1987 at 6.30 constable Budwa Prasad had brought the dead body of Sahdev along with requisition Ex. P/4 for his post mortem examination. He performed autopsy on the body of Sahdev on 6-7-1987 at 8.45 a.m. and found the following external injuries :-
"(1) 2 I.W. over head on the right parietal region and Lf. parietal region of the size 6 x 1 x 1.5 cm. and 3 x l x.5 cm.
(2) Complete amputation of index finger of Lf. hand at the proximal phalynx with 1 cm. stump remaining.
(3) Middle finger of the Lf. hand cut at the proximal phalynx and the bone was also cut and the finger was attached by a small piece of skin. Cut ends were smooth.
(4) Rt. leg was roughly completely amputed from 11 cm. above medial malleolus and was suspended only by small skin part. Circumference of the wound was 26 cm.
(5) 2. I. W. present over Rt. lower leg 3 cm. above injury No. 4 of the size 6 x 2 x 2 cm. and 10 x 2x 2 cm. Both injuries were on medial aspect of leg.
The Doctor gave his report Ex. P/41 and as per the opinion of the Doctor, the death was homicidal in nature due to haemorrhage and shock and had taken place within 24 hours of his examination.
7. P.W. 20 Dr. Chandel also performed autopsy on the body of Ashok and found the following external injuries :-
"(1) 2 I.W. over head with underlying bone cut and the brain matter severely injured of the size 17 cm. x 2 cm. and 15 cm x 2 cm.
(2) Linear scratch over back of chest on Lf. side reaching upto Rt. side of the size 19 cm.
(3) Bruise over front of neck region of crecoid cartilage extending towards Rt. side 9 x 4 cm.
As per the opinion of the Doctor, the death of Ashok was due to injury to brain and was homicidal in nature, caused within 24 hours of his examination. The Doctor gave his report Ex. P/43.
8. P.W. 20 had also examined the injuries of P.W. 10 Vijay Kumar. He had found the following injuries on him :-
(1) I.W. over Lf. shoulder (detroid region) 9 x 4 x 4 cm.
(2) I.W. over Rt. forearm flexer side 4 x 1 x 1 cm.
(3) L.W. over Rt. forearm medial side 4 x2 x 2 cm.
(4) Abrasion near lateral contours of Rt. eye 2 x 2 cm.
(5) Blackening of upper and lower eye lid of Lf. eye. While injury Nos. 1 & 2 had been caused by hard and sharp object, injury Nos. 3 & 5 had been caused by hard and blunt object and injury 4, by hard and rough object. The injuries were of the duration of less than 6 hours. The Doctor advised X-Ray for injury No. 1 to ascertain its nature.
9. Dr. Chandel (P.W. 20) had also examined the injuries of Latel and had found on him a punctured wound over left forearm 5 cm below elbow joint of the size .5 x .5 x 1 cm. and a contusion over left upper arm 8 x 6 cm and given his report Ex. P/44. The accused Sanat Kumar was also examined by him on that day and a contusion was noticed on his deltoid region of the size 3 x 1 cm, in addition to a contusion over forearm and minor injuries on fingers. The Doctor had given his report Ex.P/45. On examination of Chandrabhan, a lacerated wound 2 x 1 x 1 cm over skin of lower leg and a contusion over Rt. wrist was found and report Ex.P/46 was given. On examination of accused Bhajan, a contusion 10 x 15 cm on the forearm, another contusion on the left forearm, blackening of the nail of Lf. little finger and a contusion on the lateral aspect of left thigh 6 x 1.5 cm. were noticed and report Ex.P/47 was given by Dr. Chandel (P.W. 20).
10. P.W. 10 Vijay Kumar was examined by Dr. Girish Pandey (P.W. 18) at the District Hospital, Bilaspur, and was admitted to the Surgical Ward. He had sustained fracture of the collar-bone which had to be surgically treated. He was discharged from the hospital on 20-8-1987. On examination, Dr. C.S. Sharma (P.W.7) had also found a fracture of scapular bone of Vijay Kumar. Accused Sanat was also examined and the X-Ray Ex. P/14 indicated that he had sustained a fracture in the lower end of ulna.
11. In further investigation, the weapons were sent to Dr. Chandel, for his opinion, who by his report Ex. P/49 confirmed that the injuries found on deceased Sahdev and deceased Ashok could be caused by such weapons. The seized articles were then forwarded to the Forensic Science Laboratory for examination.
12. Since accused Kalam and Govind were not known to Vijay Kumar, a test identification was conducted on 23-9-1987 by P.W. 16 D. L. Patre, Executive Magistrate, in which P.W. 10 Vijay Kumar had correctly identified the said two accused of which memo Ex. P/29 was prepared. The Patwari Tulsidhar (P.W. 19) prepared spot Map Ex.P/39. The report of Forensic Science Laboratory Ex. P/54 was received according to which 'lathi', 'Tabbal', and 'Gamcha' seized from near the dead body of Ashok, the clothes of deceased Sahdev and Ashok and the baniyan seized from accused Latel had stains of human blood. After completion of investigation, the police filed chargesheet against the accused and, accordingly, the case was committed to the Court of Sessions.
13. All the accused denied the charges framed against them. The accused also examined D.W. 1 Rambai and D.W. 2 Sukaloo. The learned Additional Sessions Judge, on trial, found the accused guilty and convicted the appellants of the offences as stated above.
14. We have heard the learned counsel for the parties and perused the record.
15. It has not been disputed before us that both Sahdev and his son Ashok met a homicidal death. The Inquest memoranda prepared by the police, the statements of the eye-witnesses examined and the medical evidence also clearly establish that death of Sahdev and Ashok, both, was on account of injuries caused to them and was, therefore, homicidal.
16. Learned counsel for the appellants submits that it emerges from the prosecution evidence itself that although the land in question was said to have been sold by accused Latel to deceased Sahdev and there was a litigation between the parties till the date of the alleged offence, the accused Latel and the other accused who are members of his family or close relations, continued to be in possession of the land with the result, deceased Sahdev along with others had gone to the field to forcibly dispossess the accused persons who had already sown the crop which had sprouted. According to the learned counsel, the act of the complainant party in going to the field in a very large number to plough the field constituted trespass in the land with a view to forcibly oust the accused from possession without taking recourse to law for obtaining the same. Under these circumstances the learned counsel has urged that the accused had not only a right to defend their property in which they were entitled to use force to repel the aggression of the complainant party, but they had also a right to private defence of their body as the accused had also sustained injuries, including grievous hurt that was caused to accused Sanat s/o Budaru as evident from the testimony of P.W. 7 Dr. C. S. Sharma and his report Ex. P/l4.
17. Learned counsel for the appellants has, therefore, argued that the accused could not be convicted of the offences as their act was in the exercise of their right of private defence of property and body, both. Learned counsel for the respondent/State has, however, supported the conviction of the accused on the ground that the land had been purchased by deceased Sahdev way back in the year 1962 and although the accused Latel had initiated proceedings under the State Act, to avoid the transaction on the ground that it was a transaction of loan, his application was eventually dismissed by Sub Divisional Officer and, therefore, the accused could not claim either the right of defence of property or of person.
18. From the record, it is evident that the land Survey No. 435/1 had been sold way back in the year 1962 to the deceased Sahdev and prior to the date of the incident, there were proceedings between the deceased and the accused in which upon remand of the case by the Additional Collector, the Sub Divisional Officer had rejected the application of accused Latel, by rejecting the contention that the transaction was that of a loan. This by itself, however, did not imply that deceased Sahdev was in possession of the said land. Since the basic dispute which gave rise to the incident in question pertains to the possession of the land, the first and foremost question that arises in the present case, is as to which of the two parties was in possession of the land Survey No. 435/1.
19. We are constrained to observe that even though the possession of the land in question was pivotal to the incident in question and it was necessary for the Investigating Officer to collect material evidence in this behalf, the investigation of the case falls far short of the investigation that was expected. It is clear that the police took no steps to collect documentary evidence to indicate as to which of the two parties was in actual physical possession of the land Survey No. 435/1 and rested content with the oral testimony of the witnesses in this behalf. When the evidence of the prosecution is examined, we find that the prosecution has failed to establish that at any point of time deceased Sahdev had been put in possession of the land in question, either at the time of the alleged purchase in the year 1962, or during the proceedings before the Sub Divisional Officer. The evidence of P.W. 10 Vijay Kumar does refer to the possession having been taken by his father and he has denied that after the S.D.O. had decided the case in favour of Latel and before its remand by the Additional Collector, accused Latel had obtained possession, yet merely on account of the oral evidence in the case where documentary proof from the Revenue Record could have been obtained, it is difficult to hold that deceased Sahdev had obtained possession of the disputed land. When the testimony of P.W. 10 Vijay Kumar is examined in conjunction with the testimony of P.W. 4 Prem Singh, it becomes clear that deceased Sahdev could not have been in the possession of the said land. P.W. 4 Prem Singh has stated that apart from agriculture, he was engaged in the adult education programme in which deceased Ashok Tiwari, son of deceased Sahdev, was posted as an observer. He has testified that on the date in question, he had gone with Ashok Tiwari to his village and deceased Sahdev had asked him and the other adult education instructors to accompany them to the field stating that one " Satnami" was having a dispute and that he had telephoned the S.P. and informed the police station and there was no cause for fear. He had, therefore, agreed to go with them to the field. From the evidence of P.W. 4 Prem Singh, it is clear that the dispute still persisted between Sahdev and the accused persons otherwise, there was no reason why the deceased would collect people for going to the field and refer to the information having been sent to the S.P. and the concerned police station. The absence of proof of possession by reference to the revenue record, therefore, acquires greater significance in the context of the present case and leads one to an irresistible conclusion that deceased Sahdev was not in possession of the disputed land on the date of the incident. It appears that the evidence was deliberately kept back, to support the prosecution story that deceased was in possession of the land and had gone for sowing when he was assaulted by the accused persons. The accused have examined 'Kotwarin' of the village, D.W. 1 Rambai, who has categorically asserted that she had all through seen accused Latel cultivating the said land and in the year in which Sahdev had died, accused Latel was the one who was cultivating it and the crop had grown upto 6 inch height. Even in the cross-examination of this witness, the prosecution made no attempt to place any document on record to demolish her statement. She has a field adjoining the disputed land and, therefore, had the opportunity to notice as to who was in possession of the land and cultivating it. D.W. 2 Sukalu has also deposed to the possession of accused Latel on the land in question and has further stated that he never saw Sahdev ever ploughing the said field. The evidence of defence witnesses is also entitled to the same treatment as that of the prosecution witnesses and the prosecution has miserably failed to place any cogent material to indicate possession of the deceased on the land in question on the date of the incident. Once it is held that deceased Sahdev was not in possession, naturally there could be none else in the possession of the land except the accused Latel from whom deceased Sahdev claimed to have purchased it.
20. The next question that arises for our consideration is that even if it is held that accused was in possession, can it be said that the accused had a right of private defence concerning the said property and even if so, whether it had been exercised within the bounds of law. The evidence of the prosecution refers to the first incident in which deceased Ashok and P.W. 10 Vijay Kumar had received the injuries followed by another incident in which, it is alleged that Sahdev was chased by some of the accused and was thereafter, found dead in a different field, namely "Sajnakhar".
21. The eye witness account of the incident has been projected by the prosecution through the testimony of P.W. 2 Lalakram, owner of the neighbouring field, P.W. 3 Ramcharan, a servant of the deceased Sahdev, P.W. 4 Premsingh who had come to the field with deceased Ashok Tiwari and P.W. 10 Vijay Kumar, son of deceased Sahdev who had received injuries in the very incident.
22. P.W. 10 Vijay Kumar has deposed that on the fateful day at about seven in the morning, he along with his elder brother Ashok Kumar Tiwari, his father Sahdev, his servant Ramcharan and 5-6 instructors of Adult Education had gone to the field Khasra 435/1 known as "Brindawan Ket" for sowing operation. According to him, they had taken two ploughs and the seeds with them. While Ramcharan Kewat with one plough and the Adult Education Instructor with the other plough were ploughing the field and his father had asked his brother Ashok to bring the seeds from their other field, from the western side, accused Latel, Bhajan, Chandrabhan, Sanad, Bundaru, Gorsi, Latel's wife Gudgibai, Bhajan's wife Samatbai, Sanad's wife, Budaru's wife and accused Kalam came there. The wives of accused Govind, Kalam and Sanad were a little behind them. Accused Latel, Sanmal, Chandrabhan and Bhajan, each had a 'farsa', while others were armed with 'lathies'. Accused Latel, Bhajan and Chandrabhan then shouted that they be surrounded and cut to pieces. Thereupon Chandrabhan and Latel asked them as to why they were ploughing the field and accused Chandrabhan gave a blow with 'Tabbal which landed on his left shoulder and he fell down. He has further deposed that as he fell down, accused Bhajan gave a blow with Tabbal causing injury on his right hand. His brother Ashok Tiwari and his companion instructors rushed to the place and asked the accused persons not to beat him but he was surrounded by the accused and Bhajan struck his brother on his head with a 'Tabbal' and his brother fell down. Thereafter, accused Latel also assaulted him with a 'Tabbal' and all the other accused then surrounded him and started beating him. The instructors present on the spot implored them not to beat and finding an opportunity to escape, he along with his father ran from the place. He has further deposed that as he and his father were running, Govind had thrown a 'Tabbal' which had struck him on his right elbow and the other accused were also hurling their weapons from behind and his father was struck by one on his head. Thereafter, they went to the field of Kuttu and then to the field of Lalka, where they were given water by Lalka.
According to him, as they were trying to run away, Lalka had told them that there was no point in their running away as Lalka and others were there to save them. He then told accused Latel that nothing further should be done but Latel told Lalka that he should keep quiet and that they would chop them into pieces. Thereafter, according to P.W. 10 Vijay Kumar, the accused persons chased his father towards "Batgaon" and he (Vijay Kumar) changed his course towards village, Kheda. He has stated that while he was running towards his village, he had a desire to save his father and had also noticed accused Gorsi throwing a 'Danda' at him but on account of fear, he continued running towards his village. He has confirmed having made report Ex.P/27 at the police station and that thereafter, he was sent to the hospital for treatment and was hospitalised for a long time.
23. P.W. 3 Ramcharan was the servant of deceased Sahdev. He had been engaged by Sahdev as a labourer. He has deposed that on the date of the incident, six guests had come to the house of the deceased and they had all gone to the field where accused had come with arms and assaulted them. He has more or less given the statement in line with the statement of P.W. 10 Vijay Kumar. He has admitted that he has been a witness against accused Latel in cases between deceased Sahdev and accused Latel and was also a witness in the cases which were pending between the two families. P.W. 4 Premsingh was one of the instructors who had come to the house of the deceased as Ashok Tiwari was an organiser in the Adult Education. He has stated that they had all gone to Bilaspur, for collecting material for adult education but since the officer was not available, they had come back with deceased Ashok Tiwari to his village Kheda and spent the night in his house. In the morning, Ashok Kumar's father had asked them to accompany them as they were having a dispute with one 'Satnami' but assuring them, at the same time, that there was no cause for any fear as he had already informed the S.P. and the police station. P.W. 4 Premsingh has further deposed that when they were ploughing the field, the accused persons came there with their arms and accused Latel told them that he had no quarrel with him and that he should run away, further stating that the "Brahmin" (meaning deceased Sahdev) had made him spend a lot of money on litigation. This witness has further testified that accused Chandrabhan then assaulted Vijay Kumar and thereafter, when Ashok Kumar wheeled a 'lathi' to save his brother, Bhajan struck him with a 'farsa' on his head and he fell down, accused Latel then struck another blow on his head. Just then Vijay Kumar with his father Sahdev ran from there and the accused chased them, some of them also threw their weapons using them as projectiles, at them. He could not see what transpired thereafter.
24. From the evidence of the above three eye-witnesses, it is clear that the first incident took place in the disputed field in which P.W. 10 Vijay Kumar and deceased Ashok Kumar had received injuries but deceased Sahdev had more or less escaped unscathed. The fact that deceased Sahdev was able to run along with a young person, his son Vijay Kumar, itself signifies that deceased Sahdev must not have received any significant injury in the assault that took place in the disputed field. Under these circumstances, it is apparent from the prosecution evidence that injuries were caused to deceased Ashok Tiwari and P.W. 10 Vijay Kumar on the field in question as a result whereof Ashok Kumar Tiwari had succumbed to the injuries, while Vijay Kumar had to suffer a long hospitalisation. We have already observed above that at the time of the incident, accused Latel was in possession of the field notwithstanding the transaction with deceased Sahdev which took place in 1962. In any case, in absence of any cogent material on record, it was not possible to hold that deceased Sahdev ever came to be in possession of the disputed field, thus, leading to the only logical inference that the accused was in its possession. It has also come on record, indeed admitted by the prosecution witnesses, that sowing had already been completed in the field in question and the crop had sprouted and had grown to a height of about 4 to 6 inches. It is not the case of the prosecution that the said crop had been sown by the complainant. Under these circumstances, the accused were not only in actual physical possession of the land but had also sown the crop in the said land and, therefore, they had a right to defend their property from any mischief or trespass. The injuries caused to Ashok Tiwari and Vijay Kumar were, thus, in the exercise of their right of private defence of property but what is to be seen is whether the said right extended to causing of the death of the wrong doer. We may also hasten to add that we are not the least impressed by the suggestion of the appellants that there also accrued a right in their favour to defend their body as we find that firstly, the complainant and his companions had not gone to the field carrying any arm except the normal agricultural implements and secondly, the 'lathi' had been wielded by them only as a measure to escape the further onslaught from the accused persons.
25. The law grants to every person a right to defend, subject to certain restrictions, the property, whether movable or immovable, of himself or any other person, against any act which is an offence falling under the definition of theft, rebbery, mischief or criminal trespass or an attempt to commit the above-said offences. Section 99 of the Indian Penal Code, however lays down the extent to which the right may be exercised and provides that in no case the right extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. The right of private defence of property extends even to the causing of the death of the wrong-doer in case the offence committed by him is robbery, house-breaking by night, mischief by fire committed on any building, tent or vessel used as a human dwelling or as a place for the custody of property or 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 is not exercised. Section 103 of the Indian Penal Code providing for the extent of right to the causing of the death in private defence of property reads as under :-
"Section 103 : When the right of private defence of property extends to causing death- The right of private defence of property extends, under the restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occassions the exercise of the right, be an offence of any of the description hereinafter enumerated, namely :-
Firstly - Robbery;
Secondly - House-breaking by night;
Thirdly - Mischief by fire committed on any building, tent or
vessel, which building, tent or vessel is used as a
human dwelling, or as a place for the custody of
property;
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."
26. In the present case, none of the ingredients which grants right to the extent of causing death of the wrong-doer, was present as the offence committed by the complainant and his companions was at the most of the description of a criminal trespass and not an offence as enumerated in Section 103 or its attempt. The extent of the right is one thing but merely because the right extends to causing of the death, it does not imply that death can be caused in all cases even if any of the ingredients is present as enumerated in Section 103 of the Indian Penal Code occasioning the right of private defence as the right itself is subject to the restrictions contained in Section 99 of the Indian Penal Code and more harm than it is necessary cannot be caused. While it is true that the Courts have consistently taken the view that the extent of force can not be weighed in golden scales and one has to ensure complete victory to repel any possibility of continuance or repetition of the threat but, in the present case, it is clear that when the accused intercepted the threat of the complainant party on the field in question, there is no evidence of persistence of the complainant party in ploughing the field and the invasion was not of any description of offence as contained in Section 103 of the Indian Penal Code and, therefore, the accused did not have any right to cause death of any member of the complainant party. Therefore, while causing injuries to Vijay Kumar (P.W. 10), the accused have not committed any offence as they were quite within their right, the accused responsible for causing injuries to deceased Ashok which resulted in his death have clearly exceeded the said right.
27. The Trial Court has found accused Latel and accused Bhajan as having caused injuries to Ashok Kumar Tiwari which resulted in his death. The finding is supported by the evidence of P.W. 10 as he has clearly stated that accused Bhajan had caused an injury by 'Tabbal' and his brother had fallen down on the ground while accused Latel assaulted him with a 'Tabbal' after he had fallen down. P.W. 20 Dr. Chandel has deposed that the death of Ashok Tiwari was on account of the two head injuries which had also resulted in the fracture of parietal and occipital bone. The injuries were sufficient in the ordinary course of nature to cause death. Exception 2 to Section 300 provides that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes death. In the present case, the death of Ashok Tiwari was caused without any premeditation and in the exercise of the right of private defence of property, though exceeding the power granted by law. Under these circumstances, accused Latel and Bhajan cannot be held guilty for offence punishable under Section 302 of the Indian Penal Code but only under Section 304A of the Indian Penal Code. Since death of Ashok Kumar Tiwari was caused in exceeding the right of private defence, the other accused cannot be held liable with the aid of Section 149. The accused cannot be held liable under Section 307 or Section 307/149 Indian Penal Code for causing injuries to Vijay Kumar, as Vijay Kumar had received injuries in the disputed land in which the accused were entitled to use a reasonable force to protect their possession. The accused persons cannot, therefore, be held liable under Section 307 or Section 307 read with Section 149 of the Indian Penal Code.
28. This takes us to the next question about the liability of the accused with regard to the murder of Sahdev. From the testimony of P.W. 10 Vijay Kumar, it is clear that Sahdev escaped unscathed in the first incident in the disputed land Survey No. 435/1 and had run away from there to take shelter in the house of P.W. 2 Lalakram, P.W. 10 has deposed that while he along with his father was running away, accused Govind had whacked a 'Tabbal' which perhaps had caused injuries in the head of his father and thereafter, through the field of Kuttu, they had reached the field of Lalka. He has further deposed that the accused then followed them with the result, he turned into the direction of his village and his father continued running in the direction of Batgaon with the accused following him. P.W. 4 Premsingh has merely stated that when Vijay Kumar and deceased Sahdev ran from the field to save themselves, four men and two women from amongst the accused, chased them. P.W. 3 Ramcharan did not witness this later part of the incident and, therefore, on the point of causing the death of Sahdev, the material evidence is that of P.W. 2 Lalakram. Lalakram has deposed that Sahdev and Vijay came running to his field and they were being followed by accused Latel, Bhajan, Chandrabhan, Gorasi and two women accused. Sahdev had water in his field and when the accused arrived, he asked them not to beat them and seeing the accused, both Sahdev and Vijay ran towards Batgaon. According to him, accused Gorasi had a 'Danda' which he threw at Sahdev.
29. The learned trial court has found Latel, Chandrabhan and Bhajan guilty for offence punishable under Section 302 of the Indian Penal Code concerning the homicidal death of Sahdev Tiwari. In the evidence of P.W. 10, it is stated that Latel had come to the field of P.W. 2 Lalakram and had threatened to cut his father into pieces. The evidence of P.W. 2 though refers to Latel, Chandrabhan, Bhajan and Gorasi as also the wife of Latel and wife of Bhajan as the persons who had come to the field, when this evidence is examined in conjunction with the evidence of P.W. 10, only the name of Latel figures as one of the persons who had come to the field. Deceased Sahdev could not have earlier received any major injury, is apparent from the fact that he was, despite his age, able to run for his life. The medical evidence indicates that the injury No. 4 received by him had caused almost complete amputation of his leg and, therefore, this injury was caused to him only after he had been chased and overpowered. The evidence of Patwari P.W. 19 Tulsidar shows that the dead body of Sahdev was found at place marked as No. 14 in the spot map Ex. P/39 prepared by him, in Survey No. 403/3. The fact that the accused chased him after he had already run away from the disputed field to a considerable distance and he was caused serious injuries which resulted in his death, and were sufficient in the ordinary course to cause his death, indicates that the accused responsible for causing the injuries had intentionally committed death of Sahdev. However, while evidence against Latel having chased the accused is consistent and immediately thereafter, the deceased Sahdev was found in injured condition, the evidence against Chandrabhan and Bhajan being not consistent, they are entitled to the benefit of doubt insofar as the murder of deceased Sahdev is concerned. Accordingly, while accused Latel has rightly been convicted under Section 302 of the Indian Penal Code for the murder of Sahdev Tiwari, the conviction of accused Chandrabhan and Bhajan under Section 302, Indian Penal Code for the said murder and of the other accused under Section 302 read with Section 149 of the Indian Penal Code can not be sustained.
30. In the result, this appeal is partly allowed. The accused Latel s/o Sanchi and Bhajan s/o Latel are convicted under Section 304A of the Indian Penal Code for causing death of Ashok Tiwari and each of them is sentenced to undergo R.I. for 10 years. Accused Latel is also found guilty for offence punishable under Section 302 of the Indian Penal Code, for the murder of Sahdev Tiwari and the sentence of imprisonment for life awarded to him by the trial Court on that count is maintained. These accused are acquitted of the other charges against them. The accused other than accused Latel and Bhajan are acquitted of all the charges and the sentences passed against them are set aside.
31. Accused Latel and Bhajan are already undergoing sentence in jail. Accused Chandrabhan, Samal, Bundaru, Gorasi and Kalam are in jail. They shall be released forthwith if not required in connection with any other case.