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HIGH COURT OF ALLAHABAD
R.R.K.Trivedi, M.C.Jain
BHAGONA
Versus
STATE OF U P
Decided On : 15 October 1999
Criminal Appeal No. 3821 of 1980
CRIMINAL LAW - RIGHT OF PRIVATE DEFENCE - SECTION 97, 100, 103, 300, 304, INDIAN PENAL CODE - RIGHT OF PRIVATE DEFENCE OF PROPERTY - EXTENT AND LIMITATIONS - EXCESSIVE FORCE - CAUSING DEATH - LIABILITY OF ACCUSED.
Fact of the Case:
A dispute arose between the complainant and the accused over the construction of a door-frame on a wall. The accused claimed that the complainant and his supporters were displacing the bricks of their wall and throwing them, while the complainant alleged that the accused attacked them with axes and lathis. As a result, several injuries were sustained by both parties, and one person from the complainant's side died due to a head injury.
Finding of the Court:
The court found that the accused had the right of private defence of property to resist the complainant's interference with their wall. However, the court held that the accused exceeded the right of private defence by causing the death of the deceased. The court also found that the other accused were not vicariously liable for the death of the deceased.
Issues: 1. Whether the accused had the right of private defence of property to resist the complainant's interference with their wall? 2. Whether the accused exceeded the right of private defence by causing the death of the deceased? 3. Whether the other accused were vicariously liable for the death of the deceased?
Ratio Decidendi: 1. The court held that every person has a right to defend their body and property against any offence affecting human body, including the right of private defence of property. However, this right is subject to certain conditions and restrictions. 2. The court found that the accused had the right of private defence of property to resist the complainant's interference with their wall. However, the court held that the accused exceeded the right of private defence by causing the death of the deceased. The court noted that the accused struck a forceful axe blow on the head of the deceased, which was a vital part, and that there was no justification for such a heavy and fatal blow. 3. The court held that the other accused were not vicariously liable for the death of the deceased. The court found that it was Bhagone who, in his individual capacity, caused the death of the deceased.
Final Decision: The court partly allowed the appeal. The convictions and sentences of the accused Ratan, Gaya Din, Kishore, Pooran, Ram Dayal, and Chandra Bhan under various sections of the Indian Penal Code were set aside. The conviction and sentence of the accused Bhagone under Section 304, Part II, Indian Penal Code, was modified to seven years rigorous imprisonment.
There are seven ap pellants, namely, Bhagone, Ratan Singh, Gaya Din, Kishore Singh, Pooran, Ram Dayal and Chandrabhan. They have preferred this appeal against the judgment and order dated 6th December, 1980, passed by Sri S. P. Lai, the then III Additional Ses sions Judge, Jalaun at Orai in Sessions Trial No. 60 of 1979. All of them have been con victed under Section 147,1. P. C. , 148,1. P. C. , 3071. P. C. read with Section 149,1. P. C. and 3021. P. C. read with Section 149,i. P. C. and sentenced to undergo one years rigorous imprisonment, two years rigorous im prisonment, ten years rigorous imprison ment and life imprisonment for the aforesaid offences respectively.
2. The incident occurred on 25-2-1978 at about 8 a. m. in village Amita, Police Station Ail. District Jalaua. The report was made by Khachere PW 1 the same day at about 10. 30 a. m. The distance of the Police
Station from the place of occurrence was five kilometers. The prosecution case was that the informant resided in village Amita and on the fateful day at about 8 a. m. he was preparing fodder for his cattle outside his house. The appel lants Bhagone, Ram Dayal Gaya Din, Ratan Singh, Kishore Pooran and Chandra Bhan came over there armed with axes and lathis and questioned him as to why he had fixed a door-frame in the new wall Bhagone cried aloud hurling abuses that his door frame be displaced and thrown away. Ratan struck an axe blow on his neck. He raised shouts which attracted Dhan Singh, Ganga Prasad, Ram Charan and Shyam Lal. They intervened, Bhagone struck, an axe blow on the head of Dhan Singh as a result of which he sustained serious injuries. The remaining accused (Appellants) caused injuries to Ganga also with axe and Dandas. They also dis placed and threw away his door frame and other materials. It was mentioned in the First Information Report that persons on his side also threw tiles in self defence, which might have hurt someone.
3. Dhan Singh was first examined in District Hospital Orai on 25th February, 1978 at 12. 30 p. m. As per injury report Ex. Ka-11 he had sustained an incised wound 11 cm x 2 cm x brain deep on left parietal region. Brain matter was coming out of cranium mixed with blood. He was unconscious. Dhan Singh was taken to Lucknow and admitted to King Georges Medical College, Lucknow on 28-2-1978 on reference by the Superintendent, Civil Hospital, and Orai. He died on 2-3-1978 at 8 a. m. Post-mortem over his dead body was conducted by Dr. R. B. Misra, P. W. 5 on 2-3-1978 at 4. 00 p. m. The following two ante- mortem injuries were found on his person:
(1) Lacerated wound 3. 5 cm x 1 cm x bone deep on right side of head 6 cm above right eye brow, 10cm above right ear.
(2) Incised wound curved 8 cm x 3 cm on bone deep 7cm above left ear 11 cm above left eye brow 2. 5 cm left and behind injury No. 1.
4. The death had occurred due to coma as a result of the head injury. Conse quent upon his death, the case was con verted under Section 302,1. P. C. Injuries of two other persons, namely, Khachere PW 1 and Ganga PW 2 were also medically examined in District Hospital Orai on 25-2-1978 at 12. 40 p. m. and 12. 35 p. m. respec tively. Khachere PW 1 had sustained a lacerated wound 3 cm x 1-1/3 cm x scalp deep on left parietal region and another lacerated wound 3 cm x 1/4 cm x muscle deep on inner surface of upper part of the left leg. He had also sustained five other injuries in the form of contusions on dif ferent parts of his body. One of them was designated to be grievous which was a con tusion 6 cm x 3 cm on front of left shoulder with fracture of left clavicle. Ganga P W 2 had sustained a lacerated wound 4 cm x 1/3 cm x scalp deep on left parietal region another lacerated wound 3 cm x 1/3 cm x scalp deep on right parietal region, one contusion and one abrasion. All his in juries were simple and caused by blunt object.
5. It appears that a cross First Infor mation Report Ex. Kha 5 was lodged by Bhagone accused on 25-2- 1978 i
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