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IN THE HIGH COURT OF BOMBAY
(J. R. Vimadalal J.)
RAMCHANDRA GOVIND TAKE and others (Accused) - Petitioners
Versus
STATE OF MAHARASHTRA - Opposite party
Advocate appeared
For petitioners (accused) Nos. 1, 3 and 4 - A.G. Sabnis and R.W. Adik
For State- R.S. Bhonsle, Hon. Assistant to Govt. Pleader
CRIMINAL REVISION - RIGHT OF PRIVATE DEFENCE - PLEA OF TOTAL DENIAL - ALTERNATIVE PLEA OF RIGHT OF PRIVATE DEFENCE - RIGHT OF PRIVATE DEFENCE OF PROPERTY - INTENTION TO COMMIT MISCHIEF OR CRIMINAL TRESPASS - BONA FIDE ASSERTION OF RIGHT - SECTION 96, 97, 425, 441, INDIAN PENAL CODE.
Fact of the Case:
Accused Nos. 1, 3, and 4 were convicted of causing injuries to Nabisaheb and his associates on October 1, 1966, while they were attempting to assert their right to a piece of land (Survey No. 96/2) in the village of Ekalahari. The accused claimed to be in possession of the land as a tenant under a registered lease deed, while Nabisaheb and his co-owners had filed a civil suit challenging the validity of the lease deed. The incident occurred when Nabisaheb and his associates tried to carry out sowing operations on the land, and the accused resisted their attempt, resulting in a scuffle and injuries to Nabisaheb.
Finding of the Court:
The court found that the accused had failed to establish their plea of private defence of property under section 97 of the Indian Penal Code. The court held that Nabisaheb's entry onto the land was in bona fide assertion of his claim as a co-owner, and not with the intention to commit mischief or criminal trespass. Therefore, the accused did not have the right to use force to resist Nabisaheb's entry.
Issues: 1. Whether the accused could raise an alternative plea of the right of private defence despite taking up a plea of total denial in their statements. 2. Whether Nabisaheb's entry onto the land constituted mischief or criminal trespass, entitling the accused to exercise the right of private defence of property.
Ratio Decidendi: 1. The court held that an accused person can raise an alternative plea of the right of private defence, even if they have pleaded a defence of total denial in their statements. This is because the right of private defence is a fundamental right guaranteed under section 96 of the Indian Penal Code, and an accused person should not be denied this right merely because they have taken up a different plea. 2. The court held that Nabisaheb's entry onto the land did not constitute mischief or criminal trespass. The court reasoned that Nabisaheb's dominant intention was to assert his bona fide claim to the land, and not to cause wrongful loss or damage to the accused. Therefore, the accused did not have the right to use force to resist Nabisaheb's entry.
Final Decision: The court dismissed the revision application filed by the accused and confirmed the order of the Sessions Judge. The court also expressed its disapproval of Nabisaheb's repeated attempts to effect entry upon the land, which was the subject matter of a civil litigation, and urged both parties to refrain from taking the law into their own hands.
2. The facts of the case are that one Nabisaheb Nizamsabeb was one of the co-owners of a plot of land bearing Survey No. 96/2 situated in the village of Ekalahari, and accused No.1 claimed to be in possession of the said Survey Number as a tenant under a registered lease deed dated February 1, 1958. Nabisaheb and his co-owners had filed a civil suit in the Court of the Civil Judge at Shrirampur for a declaration that the said lease deed was not binding upon them, and for an injunction restraining accused No. 1 from entering upon the said land an September 3, 1966. An application for an interlocutory injunction made on behalf of the plaintiffs in that suit was dismissed some time before the incident with which we are concerned in the present case. The suit, however, is still pending. The evidence shows that, even though the said suit is still pending, Nabisaheb has made attempts on three or four occasions to assert the right which he claims to the land comprised in the said Survey No. 96/2, on each of which he was obstructed by accused No.1 who claimed to be a tenant thereof, as already stated above. The actual incident which has given rise to the present proceedings occurred early in the morning of October 1, 1966, when Nabisaheb made one more attempt to assert his right to the said land and to carry out sowing operations thereon. For that purpose, he went to the said land accompanied by witnesses Sitaram and Harishchandra, but on this occasion, unlike on the previous occasions when he had made similar attempts, the incident did not pass off as peacefully as before. The evidence of the main prosecution witnesses, namely, Nabisaheb, Sitaram and Harischandra, shows that accused No.1, accompanied by three other persons, resisted the attempt of Nabisaheb and his associates, that accused No.1 had a stick in his hand, accused No.2 who was acquitted by the trial Magistrate had nothing in his hand, and that accused No.3 had an axe while accused No.4 had a pen-knife in his hand. In the scuffle that ensued, Nabisaheb fell down and received several injuries on his person, including injuries with the axe and the penknife. The four accused were thereupon charged for offences under sections 323 and 324 read with section 34, Indian Penal Code, and were convicted and sentenced by the trial Magistrate as already stated earlier in this judgment. The convictions and sentences were confirmed by the sessions Judge in the appeal, subject to certain modifications which have also been set out above.
3. Two questions are raised by Mr. Sabnis on behalf of accused Nos. 1, 3 and 4, and they are: (1) that the incident itself is not proved to have occurred, and alternatively (2) that, if it is held that such an incident did occur, the evidence led by the prosecution itself shows that accused Nos. 1, 3 and 4 acted well within the right of private defence, and they, therefore committed no offence, by reason of the provisions of section 96, Indian Penal Code.
4. There is no substance in the
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