Rajasthan High Court - Jodhpur
Prem Singh vs State on 11 November, 2022
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S. B. Criminal Appeal No. 240/1990 Prem Singh son of Sujan Singh, by caste Rajput, R/o Bankil, District Pali (At present in Central Jail at Jodhpur)
----Appellant Versus State of Rajasthan
----Respondent For Appellant(s) : Mrs. Sapna Vaishnav, Amicus Curiae For Respondent(s) : Mr. S.K. Bhati, Public Prosecutor JUSTICE DINESH MEHTA Judgment Reportable 11/11/2022
1. The present criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") has been filed against the judgment and sentence dated 31.07.1990 passed by Additional Sessions Judge, Bali (hereinafter referred to as "the trial Court") in Sessions Case No. 18/1988.
2. The facts as stated in the F.I.R. are that at 9 am on 26.03.1988, one Chunaram @ Chuniya (hereinafter referred to as "the complainant") and some of his family members went to the field co-farmed by them and the appellant, and the women accompanying Chuniya started to clean the harvest of mustard seeds (Raida), to which the appellant objected. The appellant threatened the complainant and his accompaniers of dire consequences and left the field.
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3. The appellant, along with other co-accused viz., Mang Singh, Kundan Singh, Bheek Singh, Hukam Singh and Footar Mal, returned with lathis and iron pipes and engaged in a violent scuffle with the complainant and others namely Jana, Kanaram, and Dharmaram.
4. A report in the Roznamcha (Ex. P-5) was recorded at the instance of the complainant at 12:15 pm on the same day noticing that the appellant and other co-accused persons assailed him and his accompaniers with the intent of killing them. On the basis of such report, a case under sections 307, 147, 148, 149, 447 and 323 of the Indian Penal Code (hereinafter referred to as "IPC") came to be registered against the accused persons.
5. During the investigation, medical examination of the injuries of Chunaram, Dharmaram, Kanaram and Jana was got conducted by the police. As fate would have it, Jana succumbed to his injuries and passed away, whereafter, a postmortem report was obtained in relation to Jana and section 302 of IPC was accordingly added to the case.
6. On 06.05.1989, the trial court framed following charges against the accused persons under sections 447, 148, 302, 323/149, 325 of IPC as the accused persons had pleaded "not guilty" and claimed a trial :-
"(i) You committed unauthorized criminal encroachment in the possession of Chuniya Kumhar resident of Banwli at 9 am on 26-3-
1988 and thus, you committed an offence punishable under section 447 of the Indian Penal Code.
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(3 of 20) [CRLA-240/1990] (ii) You, in consultation with your other five
co- accused on the said date, at the said time and at the said place, formed an unlawful assembly, armed with deadly weapons, for the fulfillment of the common objective and thus you have committed the offence of section 148 of the Indian Penal Code.
(iii) With the intention of killing injured Jana on the said date, the said time and the said place, you hit him with an iron pipe and injured him in the head due to which he died and by beating him up with an ordinary blunt object intentionally, you have committed an offence punishable under 302 Indian Penal Code.
(iv) You were a member of the unlawful assembly at the said time and place on the said day, in the fulfillment of the common objective of the unlawful assembly, Hakji, Footarmal, Kundan Singh, Mang Singh and Bhik Singh beat up Dharma and Kana with blunt weapons due to which Dharma got simple injuries while Kana got simple & grievous injuries. Being a member of the unlawful assembly, you are also responsible for the act of your co-accused under section 149 of the Indian Penal Code and thus you have committed the offence under sections 325 and 323 read with section 149 of the Indian Penal Code.
(v) On the said day, at the said time and place, you were a member of the unlawful assembly, in the fulfillment of the common objective of the assembly, you assisted accused Bhik Singh, Mang Singh, in causing simple injuries on the body of Chuniya with blunt weapon. You, being a member of the (Downloaded on 11/11/2022 at 08:55:22 PM) (4 of 20) [CRLA-240/1990] unlawful assembly, are responsible for the act of your co-accused and thus you have committed an offence under section 323 read with section 149 of the Indian Penal Code"
7. During the trial, the prosecution produced a total of 48 witnesses, including the complainant Chuniya (PW-1); eye- witnesses Badi (PW-3), Kakku (PW-5), Teeja (PW-6); wife of the deceased, Moti (PW-17), and Dr. N K Sharma (PW-23) who conducted the medical examination of the injured Chunaram, Dharmaram, Kanaram and Janaram.
8. The appellant's statement under Sec 313 of the Code was recorded by the trial Court, in which he stated that the complainant, along with other persons came to the field which was jointly cultivated by him and Footar Mal. According to the appellant, the complainant party came with lathis to forcefully snatch the mustard seeds (Raida) harvest and in order to drive them out, he picked up an iron pipe lying nearby and swung it around for self-defence, which might have hit the deceased.
9. The appellant also stated that in the meantime, Maang Singh and Bheek Singh came from nearby fields to his rescue too. Other accused persons denied the facts as portrayed by the prosecution.
10. The prosecution produced 48 witnesses (P.W. 1 to P.W. 48) while 5 witnesses were produced by the appellant in defence. On behalf of the complainant, one Dhirendra Kumar (C.W. 1) appeared in the witness box. The trial court examined in detail the testimony of all those witnesses and found that the complainant party, including the deceased and other injured persons, was the aggressor having gone to the field of the (Downloaded on 11/11/2022 at 08:55:22 PM) (5 of 20) [CRLA-240/1990] appellant to take their share of the mustard harvest. The trial court, though, found that the injury inflicted by the appellant and other persons was covered by the right of private defence exercised in order to protect the crop, however, held the appellant-accused (Prem Singh) to be guilty of offence under Section 304 Part-II instead of Section 302 of the IPC and sentenced him to undergo imprisonment for 5 years apart from a fine of Rs. 10,000/- per viam judgment dated 31.07.1990, which is subject matter of the present appeal.
11. While holding that the appellant had the right to private defence, the trial court has recorded a finding that the appellant has exceeded his right to private defence and has used more force than what was required or expected of a person of normal prudence and thus, convicted him under Part-II of Section 304 of IPC.
12. Though, not relevant for the present purpose, suffice it to notice that other accused have not been found part of unlawful assembly and guilty of causing Jana's death. Co-accused Mang Singh and Bheek Singh have been found guilty of the offence under Section 323 of the IPC for hitting Kana and Chuniya with lathi.
13. It is also noteworthy that the appellant (Prem Singh) has not been found guilty of trespass punishable under Sections 447, 148, 323/149, 325/149 & 302 of the Indian Penal Code.
14. In wake of the evidence on record that the deceased and other members of the complainant party have rather approached the field of the appellant, assertion of the complainant party that Prem Singh and other co-accused have approached their field with (Downloaded on 11/11/2022 at 08:55:22 PM) (6 of 20) [CRLA-240/1990] the intention to commit murder/inflict fatal injuries, has been found to be false.
15. Having abreast the Court about requisite facts, learned counsel for the appellant, Ms. Sapna Vaishnav, firstly, drew the Court's attention towards Ex. P-5 and argued that in the Roznamacha report, there is not even a whisper about the fact that it was the appellant-accused Prem Singh who hit the deceased Jana with a pipe on his head, hence, the trial Court has erroneously convicted the appellant by relying on a story that the police may have cooked up later in time.
16. Secondly, it was flagged by the learned counsel for the appellant that Ex. P-43 (recovery memo) indicates that a 7 and a half feet-long iron pipe, allegedly the weapon used to cause injury to the deceased, has been recovered by the police based on the information provided by Prem Singh, however, no blood stains were found on the iron pipe so recovered. Learned counsel, thus, argued that the trial Court has wrongly concluded the iron pipe to be the weapon used for inflicting fatal injuries upon the deceased Jana.
17. Learned counsel for the appellant submitted that it is clearly discernible from the statement of Phool Singh (PW-30), that accused - Prem Singh was attacked by Jana, Dharma, Kana, Chuniya, etc., without any provocation when they came to his farm with lathis and other weapons to forcibly take away his harvest of mustard seeds and in retaliation thereof, the appellant Prem Singh in order to save himself and his property, had flung the lathi or pipe. She argued that appellant's action was thus well (Downloaded on 11/11/2022 at 08:55:22 PM) (7 of 20) [CRLA-240/1990] within his right to private defence given the finding that the complainant party was the aggressor.
18. Learned counsel elaborated her argument that it was in the course of exercising his right to private defence to safeguard his property and person at the hands of the complainant party, the appellant picked up the iron pipe and swung it. If such pipe incidentally hit Jana on his head and he died as a result, it was not a premeditated act and the same cannot be held to be use of excessive or disproportionate force.
19. She further submitted that causing harm to the aggressor, even to the extent of causing death is justifiable as per the provisions of section 103 of the IPC, as the appellant was faced with danger to his property and thus, the trial Court has wrongly held that the appellant committed an act in excess of his right of private defence.
20. Learned counsel for the appellant finally argued that as many as 10 witnesses from the prosecution side namely, PW-2 Mohan; PW-11 Bheekha; PW-12 Rawat Singh; PW-14 Nenu Khan; PW- 16 Dhanna; PW-19 Moolchand; PW- 20 Bhura Ram; PW-25 Ganeshpuri; PW-35 Khushtala Singh; PW-38 Jalam Singh, turned hostile and denied the prosecution's version of facts, therefore, the trial Court ought to have given the benefit of doubt to the accused-appellant.
21. Learned Public Prosecutor, Mr. S K Bhati, on the other hand argued that the mere fact that blood stains were not present on the iron pipe at the time of recovery is not sufficient to deny that the recovered iron pipe was not the weapon that was used to inflict injuries upon Jana, when the iron pipe was recovered on the (Downloaded on 11/11/2022 at 08:55:22 PM) (8 of 20) [CRLA-240/1990] basis of the information provided by the appellant Prem Singh himself, as is evident from Ex.P-43. He further submitted that the likelihood of the accused having washed the iron pipe before hiding it cannot be ruled out. Hence, mere absence of blood stains on the pipe hardly belies the prosecution story.
22. Learned Public Prosecutor also argued that the right to private defence is only available to the extent of averting risk to one's person or property and such right ceases to exist as soon as the imminent threat or the criminal act ceases to operate. He submitted that looking to the multiple injuries sustained by the complainant party, it is very evident that accused persons continued to assault them long after the threat of being harmed (if any) had subsided. Thus, he submitted, that the trial Court has committed no error of law in holding that the appellant exceeded his right to private defence, particularly when neither any FIR was lodged by the accused party nor was there any proof of their injuries.
23. Furthermore, learned Public Prosecutor submitted that simply because 10 witnesses out of 48 witnesses have turned hostile, it cannot be said that the prosecution has not proven Prem Singh's guilt beyond reasonable doubt. It has been clearly established by the statements of Chuniya (PW-1), Badi (PW-3), Kakku (PW-5), Teeja (PW-6), Moti (PW-17) and Dr. N.K. Sharma (PW-23), that Prem Singh hit Jana on his head with an iron pipe / lathi as an inevitable result of which, Jana died.
24. Heard learned counsel for the parties and perused the material available on record.
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25. Adverting to the first argument of the appellant, the fact that the entry in the Roznamcha does not explicitly state that the appellant inflicted an injury on Jana's head, cannot be said to be a reason to conclude that Jana did not suffer any injury and thus, cannot be a proof of the appellant's innocence. In his statement, the complainant Chuniya clearly deposed that he witnessed that the appellant came with a pipe and hit the deceased Jana. Further, Chuniya himself was hit on the forehead with a lathi by accused Mang Singh and on his shoulder by the accused Bheek Singh.
26. In such a situation, it cannot be expected of the complainant to clearly state as to who hit whom and where exactly was the injury caused by each of the blows of the accused persons in the Roznamcha report. This Court is of the opinion that the trial Court has committed no error of law as the fact remains that the complainant's description of the injuries is essentially consistent with the allegations levelled in the Roznamacha entry. That apart, when the report was given immediately by an injured person, he would normally be concerned with his own injury and an injured person cannot be expected to give minute detail(s) about all the persons and their corresponding offenders.
27. So far as the second argument of the appellant that no blood stains have been found on the iron pipe is concerned, this Court is of the firm view that absence of blood stains is of little significance given the fact that the iron pipe has been recovered at the behest of the appellant and all the witnesses have in unison deposed that appellant used pipe to inflict injury on Jana's head. Hence, it was proved beyond a pale of doubt that the recovered pipe was used to inflict fatal injury upon the deceased Jana. (Downloaded on 11/11/2022 at 08:55:22 PM)
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28. Thirdly, the mere fact that 10 witnesses have turned hostile from the prosecution's side is not enough to doubt the credibility of the prosecution's side of story. Out of 48 witnesses produced by the prosecution, everyone except those 10 hostile witnesses has supported the complainant's version.
29. Badi (PW-3), an eye witness has clearly stated that Prem Singh came with a pipe and hit Jana with the pipe in his head.
Similarly, Kakku (PW-5), another eye witness has also stated that while Jana was smoking beedi, Prem Singh, who had an iron pipe in his hand, came and hit Jana with the pipe on his head. Furthermore, Teeja (PW-6), another accompanier of the complainant deposed along the same lines and further stated that as a result of the injury to his head, Jana fell on the ground.
30. On a perusal of the record, this Court finds that the eye- witnesses viz., Heeri (PW-7), Shanti (PW-8), Pada (PW-15), Moti (PW-17, wife of the deceased), Faudi (PW-18), Devi (PW-26), Galba (PW-27) and Lachhi (PW-28) consistently, repeatedly and unequivocally reiterate and confirm the same version of events.
31. Injury report of Jana (Ex. P-27) and the statement of the medical examiner, Dr. N K Sharma (PW-23) reveal that Jana suffered the following six injuries:
1. Horizontal lascerated wound of 6.2 X 0.5 cm X bone deep with abrasion on the margins on right frontal region;
2. Depressed upper half of left side of chest with paradoxical respiration;
3. Haematoma with blackening of both lids of right eye with haematoma of right forehead region;
4. Incised wound of 2.0 X 0.1 X 0.1 cm on the upper part of pinna of left ear;
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5. Lascerated wound of 2.8 X 0.3 X 0.2 cm on the back of middle of left ear;
6. Spindle-shaped incised wound of 2.3 X 0.3 cm X muscles deep on the left postauricular region.
32. The injuries sustained on the forehead by the deceased Jana were blunt injuries, which can very well be caused by the effect of forceful blow of a lathi or an iron pipe and can cause death of a person in the ordinary course of nature. Thus, a clear nexus can be established between the injuries inflicted by the appellant and the death of Jana.
33. In the opinion of this court, the arguments advanced by the appellant are not sufficient to negate his guilt, let alone beyond a reasonable doubt.
34. Finally, this Court adverts to the appellant's argument regarding justifiable exercise of the right of private defence. The extent of right of private defence has been clearly encapsulated under section 99 of the IPC, the relevant part whereof reads as under:
"Sec 99. ........
Extent to which the right may be exercised.
--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."
35. Hon'ble the Apex Court has elaborated on the extent of the right of private defence in the case of Dharam and Others vs. State of Haryana reported in (2007) 15 SCC 241, as follows:
"To put it pithily, the right of private defence is a defensive right. It is neither a right of aggression nor of reprisal. There is no right of private defence where there is no apprehension of danger. The right of private defence is available only to one who is suddenly confronted with the necessity of (Downloaded on 11/11/2022 at 08:55:22 PM) (12 of 20) [CRLA-240/1990] averting an impending danger not of self creation. Necessity must be present, real or apparent (See: Laxman Sahu v. State of Orissa: 1988CriLJ188). Thus, the basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the state machinery is not readily available, that individual is entitled to protect himself and his property. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. We may, however, hasten to add that the means and the force a threatened person adopts at the spur of the moment to ward off the danger and to save himself or his property cannot be weighed in golden scales. It is neither possible nor prudent to lay down abstract parameters which can be applied to determine as to whether the means and force adopted by the threatened person was proper or not. Answer to such a question depends upon host of factors like the prevailing circumstances at the spot, his feelings at the relevant time; the confusion and the excitement depending on the nature of assault on him etc. Nonetheless, the exercise of the right of private defence can never be vindictive or malicious. It would be repugnant to the very concept of private defence." (emphasis supplied)
36. Suffice it to say that it is an established principle of law that the right of private defence only extends to the level of averting risk to one's body or property and cannot traverse into the area of causing harm to the assailants. The moment, real or apparent danger to life, limb or property abates, is the demarcating and determinative point when an act, which is otherwise criminal, transcends into arena of offence from that of "defence". (Downloaded on 11/11/2022 at 08:55:22 PM)
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37. The right of private defence of property to the extent of causing death of the aggressor is envisaged under section 103 of the IPC. The provision is reproduced hereunder:
"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, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:--
First.--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."
38. A perusal of the above provision clearly establishes that the right to private defence of property to the extent of causing death exists only in case of four enumerated contingencies - robbery; house-breaking by night; mischief by fire; theft, mischief or house-trespass that causes apprehension of death or grievous hurt.
39. The succeeding provision, section 104 lays down that in case of theft, mischief or criminal trespass of a different nature, the extent of right of private defence is only upto causing any other harm but the death of the aggressor.
40. The set of facts alleged and proved, do not relate to house- breaking by night; mischief by fire; or theft, mischief or house- (Downloaded on 11/11/2022 at 08:55:22 PM)
(14 of 20) [CRLA-240/1990] trespass. Hence, protective umbrella of section 103 was not
available to the appellant. The accused could have been said to have a legitimate right to cause death of Jana only if the complainant party, which has been held to be the aggressor, committed or attempted to commit the offence of robbery against them.
41. Robbery, as per Sec 390 of IPC, is defined as follows:
"390. Robbery.--In all robbery there is either theft or extortion.
When theft is robbery.--...
When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted."
42. Robbery can be committed in case of two offences. Adverting to the first one, i.e., theft, an essential ingredient of the offence of theft is intending to dishonestly take a property out of a person's possession. As per the statements of the prosecution witnesses, particularly PW 33 - Kana, there was a long-standing dispute between the accused party and the complainant party regarding the rights over the mustard harvest and the complainants had even sought interference from police officials in this regard. On the day of the incident, the complainants gathered and went to the field in order to claim/fetch the harvest, which they believed to be rightfully theirs, maybe by way of questionable means. Therefore, their action cannot fall under the purview of theft. (Downloaded on 11/11/2022 at 08:55:22 PM)
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43. The second contingency under robbery is that of extortion. On the basis of evidence adduced and led, Prem Singh cannot be said to have been put under fear of instant death, hurt or wrongful restrain by the complainants. As per the statement of the appellant under section 313 of the Code, the rival parties first engaged in a verbal altercation and then, he went away from the field and came back later and picked a pipe in his defence and swung it around. The immediacy of the situation and overall facts do not constitute the offence of robbery so far as role of the complainant party is concerned.
44. Viewed from any angle, the actions of the deceased Jana and his party found as the aggressors do not fall under the list of offences encapsulated under section 103 of IPC. Hence, the appellant cannot justify the homicide in the name of private defence or in other words his right to private defence did not extend to causing death.
45. There is yet another reason for the above conclusion. The incident took place in the field of Deva Ravana Rajput and the possession of the appellant, along with Footar Mal, over the said land/field at the time of the incident was settled. Even if it is believed that the complainant party came armed with lathis to forcibly take away their share of mustard seeds harvest from appellant's farm, may be with an intent to commit an offence, it may be said that the complainants were likely to have committed criminal trespass at best. The right of private defence of property in the case of criminal trespass extends to the limit of causing any other harm but causing death, as given under section 104 of the IPC.
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46. The above view is fortified by judgments of Hon'ble the Supreme Court so also supported by the view of the Chhattisgarh High Court in cases consisting of similar facts, which are discussed below:
47. In the case of Latel vs. State of Chhattisgarh reported in (2001) 9 SCC 135, a conflict arose between rival parties on account of ploughing a field and the appellant assaulted that complainant party with "tabbal" and lathi, and continued to administer blows even after the complainants fell to the ground. The Apex Court discussed the legitimacy of the appellant's actions thus:
"We will now take up the incident that took place in the disputed field. The High Court in regard to this incident, having come to the conclusion that the possession of the disputed field was with the Appellant, held that the Appellant had a right to private defence to the extent of protecting the property of which he was in possession but after examining the evidence available on record, it came to the conclusion that so far as the Appellant and Bhajan son of Latel are concerned, they have exceeded this right and are liable to be punished under Section 304, Part I, I.P.C., for having committed the murder of Ashok Tiwari. Here, we are in unison with the finding of the High Court. From the evidence of the witnesses which have been discussed by the High Court in regard to this incident, it is clear that the Appellant and Bhajan had attacked on Ashok Tiwari even after he had fallen down on the ground with 'tabbal'. Dr. Chandel, P.W. 20, who gave evidence as a prosecution witness has stated that the death of Ashok Tiwari was the consequence of two head injuries which had also resulted in fracture of parietal and occipital bones and these injuries were sufficient in the ordinary course of nature to cause death and from the evidence of the prosecution, the High Court rightly came to the conclusion that these 2 injuries were caused by (Downloaded on 11/11/2022 at 08:55:22 PM) (17 of 20) [CRLA-240/1990] the Appellant and Bhajan by exceeding their right of private defence."
48. The interplay between section 103 and 104 of the IPC as regards the extent of harm that may be inflicted upon the aggressor in private defence was discussed by the Chhattisgarh High Court in the judgment dated 21.09.2011 rendered in the case of Mangaldas and Ors. vs. State of M.P. (Criminal Appeal No. 337 of 1995), as follows:
"In the present case, there is sufficient evidence to hold that the disputed field was in possession of the appellants since fast (sic.) 10-15 years. It was in cultivating possession of them. The appellants were claiming since long that the disputed field was their property and they will not allow the deceased to interfere with their possession. All these are admissions in the evidence of Jhulbai (PW-4). Jhulbai (PW-4) also admitted that a case was pending between the appellants and her husband relating to the said field. She also admitted that, earlier, her husband was prosecuted in a criminal case of crop-cutting relating to the disputed filed. The case of the prosecution is that on the date of incident, the deceased started ploughing the field by buffaloes-plough. When the appellants came to know about it, they went to the field and asked the deceased not to plough the field and thereafter they untied the buffaloes from the plough After this, the deceased again brought the buffaloes to the field and tried to tie them with the plough and also tried to plough the field. It is on this event, the appellants assaulted the deceased by lathi & chatwar which is normally carried by villagers. The appellants were in settled possession of the disputed field, and on the (Downloaded on 11/11/2022 at 08:55:22 PM) (18 of 20) [CRLA-240/1990] evidence on record, it is clear that they assaulted the deceased in right of private defence of their property. The question is whether the appellants were having right of private defence of property to the extent of causing death or their right was restricted to cause other harm than the death? We can find the answer to this question in Sections 103 & 104 IPC. The right of private defence of the property extends to causing death in the circumstances which are mentioned in Section 103 IPC which does not include the "criminal trespass"
which in fact, the deceased has committed in the present case. Therefore, the right accrued in favour of the appellants could not extend to causing the death. In fact, the right accrued in favour of the appellants would extend to causing any harm other than death which is clear from Section 104 IPC which includes an instance of "criminal trespass"
which the deceased did in this matter. Therefore, the appellants certainly exceeded their right by causing death of the deceased."
49. In view of this Court, the trial Court has rightly held that the disproportionate use of force by Prem Singh in hitting the deceased Jana with an iron pipe, that too on his head - a vital organ of the body, cannot be said to be a justifiable exercise of the right of private defence as the appellant was not under immediate apprehension of death by any stretch of imagination - the evidence on record does not suggest so.
50. As an upshot of the discussion foregoing, this Court does not find any error in the conclusion drawn by the trial Court. As a matter of fact, the conviction could or should have been under Section 304 Part I of the IPC, but as the State has not filed any (Downloaded on 11/11/2022 at 08:55:22 PM) (19 of 20) [CRLA-240/1990] appeal and the appeal in hands is pending for last 30 years, this Court does not deem it appropriate to alter the conviction and punishment.
51. The appeal is, therefore, dismissed and the order of the trial Court dated 31.07.1990 is affirmed in relation to the conviction of the appellant for the offence under section 304 part II of IPC.
52. In order to oppose appellant's prayer to reduce the sentence to the sentence already undergone, learned Public Prosecutor drew the Court's attention towards the record of the criminal cases lodged against the appellant by producing factual report dated 09.07.2022. He informed that during the period interregnum, the appellant has been held guilty of committing murder and is serving life imprisonment that has been awarded by Additional District Judge, Sumerpur per viam order dated 20.02.2020 in case number 173/12.06.2014 for the offences under sections 147, 148, 149 and 302 of the IPC.
53. This Court is, therefore, not inclined to grant any indulgence to the appellant. The sentence of 5 years of rigorous imprisonment and fine of ₹10,000/-, and one year rigorous imprisonment in case of default of payment of fine, awarded by the trial Court is, thus, upheld.
54. The appellant Prem Singh be made to undergo the remainder of his sentence in case number 18/1988. As he is already serving life sentence, the period of his remaining sentence qua this case shall commence from the date of this order and would continue hand in hand with his sentence awarded by order dated 20.02.2020 in Case No. 173/2014, as per the mandate of Section 427(2) of the Code.
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55. The present criminal appeal stands disposed accordingly.
56. Record of the trial court be sent back forthwith, if not required in any other case.
(DINESH MEHTA),J Inder/-
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