IMPORTANT POINT
The evidence does not prove it a case of exceeding right of private defence but it is a case of not exceeding private defence and the appellants are entitled to acquittal from all the charges.

Headnote:Indian Penal Code, 1860-Sections 302/302/34 and Sections 304 Part I/34-Offences under-Appellants in cultivating possession of land-Prosecution party purchasing it and interfering with possession by ploughing it-Resisted by appellants-Caused death of one and injuries to others of the prosecution party-Appellants also suffering vital injuries not explained by prosecution-Trial Court convicting under Sections 302, 302/34-High Court reducing to Sections 304 Part I r/w 34 on ground that appellants exceeded their right of private defence-Whether use of Section 34 IPC correct? (No)-Is it a case of exceeding private defence or not exceeding private defence? (The later)-Result-Acquittal-Appeal allowed-Cases referred-(IPC 1860-Sections 99 to 103).
       Held : The High Court on a finding that the appellants had exceeded their right of private defence of property, convicted and sentenced them under Section 304 Part I read with Section 34 IPC. Counsel for the appellants rightly submitted that the conviction of the appellants, in the facts of this case, under Section 304 Part I read with Section 34 IPC is clearly illegal. The High Court having found that the appellants acted in exercise of their right of private defence, the conviction of all the appellants with the aid of Section 34 was unwarranted. In our view the submission has force and must be accepted. It is well settled that once it is held that the accused had the right of private defence and reasonably apprehended that death or grievous bodily hurt would be the consequence if the right of private defence was not exercised, the right of private defence of property extended under Section 103 IPC to voluntarily causing the death of the aggressor subject to restrictions mentioned in Section 99 IPC. In this case, if the appellants acted in exercise of their right of private defence of property, it cannot be said that they committed a criminal act in furtherance of a common intention, because Section 96 IPC makes it abundantly clear that nothing is an offence which is done in the exercise of the right of private defence. They did not intend to commit any criminal act or to do anything which may be described as unlawful. Their object was not to kill the deceased but to protect their property. It may be, that in a given case it may be found on the basis of material on record that some of them may have exceeded their right of private defence and for that they may be individually held responsible. But it cannot he said that the murder was committed pursuant to a common intention to commit such crime. (Paras 18 and 19)
        It therefore, follows that intention of the appellants was not to cause the death of Jayavelu but they had acted in exercise of their right of private defence. While acting in exercise of right of private defence, the appellants cannot be said to be motivated by a common intention to commit a criminal act. Common intention has relevance only to the offence and not to the right of private defence. The question still arises whether the appellants can be convicted for having exceeded their right of private defence. In the instant case we are inclined to hold that the appellants had initially acted in exercise of their right of private defence of property, and later in exercise of right of private defence of person. It has been found that three of the appellants were also injured in the same incident. Two of the appellants, namely- appellants 2 and 3 had injuries on their head, a vital part of the body. Luckily the injuries did not prove to be fatal because if inflicted with more force, it may have resulted in the fracture of the skull and proved fatal. What is, however, apparent is the fact that the assault on them was not directed on non vital parts of the body, but directed on a vital part of the body such as the head. In these circumstances it is reasonable to infer that the appellants entertained a reasonable apprehension that death or grievous injury may be the consequence of such assault. Their right of private defence, therefore, extended to the voluntarily causing of the death of the assailants. (Paras 20 and 21)
       Held finally : In these circumstances and having regard to the findings recorded by the High Court we are satisfied that the appellants were fully justified in defending their possession as well as their person, having regard to the fact that they were assaulted by the members of the prosecution party who were the aggressors and who had trespassed upon the land which had been in continuous possession of the appellants for over 50 years. They had not exceeded their right of private defence of property and person because the facts and circumstances justify their entertaining a reasonable apprehension that grievous hurt may be caused to them, if not death, by the assailants. (Para 26)
       Held consequently : Once it is held that the appellants did not exceed their right of private defence, it must logically follow that they cannot be convicted of the lesser offences under Sections 324 and 326 IPC, because in the same transaction and in exercise of their right of private defence they had caused injuries to some of the prosecution witnesses. In the result this appeal is allowed and the appellants are acquitted of all the charges levelled against them. The appellants shall be released forthwith unless required in any other matter. (Paras 29 and 30)

JUDGMENT

B.P. Singh, J.-This appeal by special leave is directed against the judgment and order of the High Court of Judicature at Madras dated 17.04.2001 in Criminal Appeal No. 602 of 1992. There are four appellants in this appeal. Appellant No.1, Subramani is the father of the remaining appellants namely, Venkatesan (appellant No.2), Ganesan (appellant No.3) and Govindaraj (appellant No .4). They have impugned the judgment and order of the High Court whereby while setting aside their conviction under Sections 302 and 302/34 I.P.C., the High Court found them guilty of having exceeded their right of self-defence and found them guilty of the offence punishable under Section 304 Part I read with Section 34 I.P.C. The High Court also found the appellants guilty variously of the offences under Section 324 and Section 326 I.P.C. However, the High Court acquitted them of the charge under Section 447 I.P.C. on a finding that the land in question was in their cultivating possession as tenants and therefore in the facts and circumstances of the case they could not be held guilty of the offence of criminal trespass. Apart from the appellants herein, two others namely accused Nos. 5 and 6 were put up for trial before the Court of Sessions in Sessions Case No. 46 of 1992 charged variously of offences under Sections 302, 302/34, 324, 326 I.P.C. read with Section 149 I.P.C. as also under Sections 147, 148 and 447 I.P.C. The learned Sessions Judge, however, acquitted accused Nos. 5 and 6 finding no evidence against them, but found the appellants herein guilty and sentenced them to various terms of imprisonment under different Sections of the I.P.C. Appellants No.1 and 2 were convicted by the Trial Court for the offence under Section 302 I.P.C. and appellants No. 3 and 4 for the offence under Sections 302/34 I.P.C., and sentenced to suffer imprisonment for life. All the appellants were also found guilty of the offence under Section 447 I.P.C. for which they were sentenced to three months rigorous imprisonment. Appellants 1 and 3 were found guilty of the offences under Sections 324 and 326 I.P.C. and sentenced to rigorous imprisonment for 2 years and 5 years respectively under the aforesaid sections. Appellants No. 2 and 4 were found guilty of the offence under Section 324 I.P.C. and sentenced to two years rigorous imprisonment.

2. The occurrence giving rise to this appeal is alleged to have taken place on 20th April, 1991. The case of the prosecution is that the deceased Jayavelu purchased 1.83 acres of land in Survey No. 56/1 in Renukapuram from Murugesa Mudaliar and Savithri. However, appellant No. 1 herein who was the cultivating tenant of the aforesaid land was obstructing delivery of possession of the land to the deceased who had purchased this land. Panchayat had been convened which had decided that half of the land should be retained by the deceased purchaser and the other half should be given to appellant No. 1 who should pay the price thereof within three months. Appellant No. 1 did not pay the price of half portion of the land, and continued in possession of the entire plot. On the evening of 19th April, 1991, the deceased attempted to plough the said plot which was in possession of appellant No.1, but the appellant No.1 protested, which compelled the deceased to stop ploughing that land. After this incident the deceased went away. However, at about 6.00 a.m. on 20th April, 1991, the deceased along with PWs. 1, 2, 3 and Sikamani again went to plough the land and commenced agricultural operations. PWs 2 and 3 were the daughters of the deceased while Sikamani (not examined) was his son. PW 1 is the husband of PW 2. When Sikamani was ploughing the land, PW 1 stood on the ridge and PWs 2 and 3 were manuring the land. On coming to know of this the appellants and accused 5 and 6 (since acquitted), came and protested against the ploughing of the land which was in possession of the appellants. The prosecution allegation is that appellan

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2002 Supreme(SC) 858

IMPORTANT POINTThe evidence does not prove it a case of exceeding right of private defence but it is a case of not exceeding private defence and the appellants are entitled to acquittal from all the charges.

Cases Referred (3)

IMPORTANT POINT
The evidence does not prove it a case of exceeding right of private defence but it is a case of not exceeding private defence and the appellants are entitled to acquittal from all the charges.