A person has a right of private defence to protect their property from trespassers, but they may not use more force than is necessary.

Judgement

HEGDE, J. :-Two questions that arise for decision in this appeal by special leave are (1) whether the appellants have established satisfactorily the right of private defence pleaded by them and (2) if they had that right, have they exceeded the same?

2. The prosecution case is as follows: Field No. 1129/477 measuring five bighas and thirteen biswas situated in Kilokri was an evacuee property and as such was under the management of the managing officer That property was acquired by the Central Government under the Displaced Persons Act, 1954. (But for the sake of convenience we shall refer to that property hereinafter as evacuee property). The same was sold by public auction on January 2, 196l and purchased by PW 17 Ashwani Kumar Dutt for a sum of Rs. 7600. Provisional delivery of that property was given to the vendee on October 10, 1961. The sale certificate was issued on February 8, 1962. The actual delivery was given on June 22, 1962 as per the warrant issued by PW 5, Khushi Ram, the managing officer. The said delivery was effected by PW 10 Sham Das Kanungo. On July 1, l962 when PW 17 and his father PW 19, R. P Dutt went to the field with PW 16, Gopal Das, PW 15 Nand Lal and one B. N Acharya with a tractor to level the land, the appellants came armed with spears and lathis, attacked the complainant s party and caused injuries to PWs 17 and 19 and the tractor driver, B. N. Acharya.

3. Though the appellants in their statement under Section 342 Cr. P. C. denied having been present at the scene of occurrence or having caused injuries to any one, the plea taken on their behalf at all stages was one of private defence. Their case is that their relation Jamuna (DW 3) was the tenant in the land for over thirty years. His tenancy was never terminated. He had raised crops in the field in question. There was no delivery on June 22, 1962. If there was any delivery as alleged by the prosecution, the same was without the authority of lay and as such was of no effect. Hence, Jamuna continued to be in possession of the property even on July 1, 1962. On the day prior to the occurrence. PWs 17 and l9 tried to intimidate Jamuna to come to terms with them and to peacefully deliver possession of the property to them. But he put off the question of compromise by pleading that he was going out of station and the question of compromise could be considered after his return. With a view to forcibly assert their right to the property the complainant party came to the field in a body on July 1, 1962 with a tractor. At that time PW 19 was armed with an unlicenced pistol. It is at this stage that the appellants who are near relations of Jamuna went to the field and asked the complainant party to clear out of the field. When they refused to do so, they pushed them and thereafter used minimum force to throw them out of the field. On the basis of the above facts it was urged on behalf of the appellants that they were not guilty of any offence.

4. The courts below have accepted the prosecution version both as regards possession as well as to the manner in which the incident took place. The appellants have been convicted under Sections 447, 324 read with 149 and 148 I. P C. We have now to see whether on the basis of the undisputed facts as well as the facts found by the High Court, the defence can be said to have made out the plea of defence of property advanced on their behalf.

5. It is true that the appellants in their statement under Section 342, Cr. P C had not taken the plea of private defence, but necessary basis for that plea had been laid in the cross-examination of the prosecution; witnesses as well as by adducing defence evidence. It is well settled that even if an accused does not plead self-defence, it is open to the court to consider such a plea if the same arises from the material on record -see In re, Jogali Bhaigo Naiks, AIR 1927 Mad 97. The burden of establishing that plea is on the accused and that burden can be discharged by showing pr