Guman Mal Lodha, J.
1. Bhagsingh has filed this appeal against the judgment of Additional Sessions Judge, Udaipur dated 10-7-1978 by which he has been convicted for offence under Section 304, Part-II, IPC and sentenced to four years' R.I. with a fine of Rs. 1000/-.
2. On 29-9-1977 at about 6-7 a.m. one Kishore went to graze his oxen in the fields. When the oxen had grazed for some time, the accused who were nine in number reached the field with lathis in their hands and asked Kishore why oxen were being grazed there. Kishore asserted that the field was purchased by him.
3. This led to beating of Kishore with lathis by accused. Kishore then went to his village and came back to field with his brothers Deva and Uda. Deva and Uda reiterated that the field belonged to them. The accused then attacked Deva and Uda. Kishore raised an alarm. Deva succumbed to injuries as Deva and Uda both were injured.
4. After usual investigation, challan was filed and the accused, 12 in number were charged for the offences under Sections 302, 307, 147, 149, 447 IPC. The trial Court acquitted all except the appellant.
5. Mr. N.N. Mathur appearing for the appellant has not challenged the dispute and the fact that the injuries were caused on account of which Deva died. He has, however, argued the case on a high pedestal that the trial Court itself has decided in favour of the acceused regarding possession of the field being that of the accused, but had committed an error in holding that the accused exceeded right of private defence. According to Mr. Mathur the additional circumstance that Bhagsingh received a grievous injury on a vital part of the body has been ignored by the trial Court on unsustainable grounds.
6. Mr. Mathur, therefore, argued that the accused had right of private defence of person and property both and it was against settled principles of law to expect that the accused would weigh every blow which he would give in exercising such a right in golden scales.
7. Mr. M.C. Bhati, learned Public Prosecutor has vehemently opposed the appeal. According to him the trial Court was justified in holding that the accused exceeded right of private defence and convicting the accused under Section 304 Part II 1PC.
8. In order to appreciate the controversy on the point of right of private defence only, as the other points are not in dispute either way, I would first like to extract from the judgment of trial Court, the relevant finding regarding possession contained in part 23 which reads as under:
Regarding the right of private defence of property, accused Bagh Singh is on a stronger ground. Prosecution evidence itself bears it out that the possession upon the field in dispute was with the accused persons. They were in peaceful possession for the last 40 years. Under these circumstances they had a settled possession over the field and under law they were justified in resisting any attempt to forcefully oust them from the field. The prosecution witnesses themselves admitted that they had entered upon the field. Since possession was with accused persons the unwarranted entry upon the land by complainant party tantamounts to criminal trespass. The accused persons were within their rights to oust the intruders from the field. The fact of trespass comitted by Kishore, Uda and Deva is proved from the statements of prosecution witnesses. Under Section 104 IPC the accused had every right to bring to an end to the mischief or criminal trespass committed by complainant party. But the impugned act of criminal trespass or so called mischief did not fall under any of the categories appended with Section 103, IPC. The complainant party did not commit any theft, mischief or house trespass under such circumstances as might reasonably cause apprehension in the minds of accused persons that death or grievous hurt would be the consequence. It is not established on record that any of the complainant was in a bellicose mood. The accused have failed to probabilise that the complainant party was bent upon using force. There was no apprehension of any grievous injury much less of death at the hands of the complainant party. As such the accused persons had under law, a right to cause any harm other than death to the complainant party. In the present case one of the persons of the complainant party namely Deva has died. There is no doubt that his death was the direct result of the blow given on his forehead by accused Bagh Singh. The act of Bagh Singh in causing blow on the forehead of Deva resulted in his death. Thus, accused Bagh Singh for exceeded the right of private defence of property available to him.
9. It is significant here that first the trial court came to the conclusion that Kishore, Deva and Uda committed trespass upon the field of the accused on which the accused were in possession for more than 40 years. Thereafter, the trial court took somersault in holding that though it was a criminal trespass, it was not a trespass which will fall under any category of Section 103, IPC as the complainant party did not commit any mischief or theft.
10. It is to be noticed in this case that the appellant received a grievous hurt on his forehead, and this particular injury on his forehead is not in dispute as per Ex. D 5A.
11. The trial court while dealing with the right of private defence of the body, discussed Ex. D 5A and the statement of Dr. Chiranjiv Lal. The duration of the injury received by Bagh Singh is within two days and the doctor in his statement stated, it could have been three days. On this comparision the trial court stated that the evidence regarding duration is shaky.
12. The trial court further held that the story of Bhag Singh that he alone was there is not believable looking to the number and nature of injuries received by the complainant side. It disbelieved Bagh Singh's defence on the ground that he should have gone to doctor straight away and should have lodged First Information Report.
13. I am unable to reject the plea of Bhag Singh. It is in medical evidence that Bhag Singh received grievous hurt on his forehead. It is also in medical evidence that this injury was caused within 2-3 days. The statement read as a whole only shows that the duration was within two days or about two days even if the doctor says within three days. It would not in any manner affect this case. For one, if the injury had been caused earlier to the incident, then the prosecution witnesses should have stated that they saw the appellant with an injury on the forehead when he was on the spot before the incident started. Obviously this has not been stated by any of the witnesses.
14. Moreover, no explanation what so ever has been given about the injury of Bhag Singh. Bhig Singh was arrested and, therefore, he should not have lodged First Information Report himself being injured and under arrest. The trial court was not justified in rejecting his version simply on the ground that he did not lodge the First Information Report.
15. In my opinion, it was the duty of the prosecution to explain the injury of the appellant because it was a grievous injury on the forehead.
16. Mr. Mathur is justified in submitting that this Court in Mana and Ors. v. State of Rajasthan 1978 WLN 101 laid down the principles regarding right of private defence of person and property and those principles were based either on the earlier judgment of the Hon'ble Supreme Court or the text of the 'Dharmashtra'. Mr. Mathur relied upon the following paragraph from the judgment:
The instinct of self preservation which causes so many creatures to fight back savagely when harmed or frightened was protected in the ancient laws of all the countries. Russel in his treatise on Crimes Volume (12th Edition published in 1964) says as follows--.it is to the instinct of self-preservation, which causes so many creatures to fight back savagely when harmed or frightened that some of the peculiarities on ancient Criminal Law are thought to be due.The later concept cccording to Russel was that merely to bring about a prohibited harm should not involve a man any liability to punishment unless in addition he could be regarded as morally blame worthy and this concept was enshrined in the well-known maxim 'Actus not facit reum nisi mens sit rea'. Thus, under the common law, in order to punish a man of a crime two requirements were envisaged namely, that there must be both a physical element and a mental element in every crime. This has been popularly termed as 'mens rea' in our Indian law and there are crimes where it cannot be insisted upon ever, the right of self-preservation is the basic nucleus from which the right of private defence of property and person has been enacted in the IPC under Section 96 to 106, Chapter 4 of the IPC.
It would be interesting to know the state of ancient laws in one country. 'Vyavahara Mayukha' describes first who can be called 'Atatayin' i.e. with a felonious intent. Vashistha says that an incendiary, a poisoner, one armed with a weapon one who robs another of his wealth, one who snatches another's field and wife, these six are 'Atatyins'.
Manu says 'One may certainly kill without hesitation a man who comes upon him as an Atatayin whether he be a teacher or a child or an old man or a learned Brahmana'.
Katyayana says 'One may go on to kill another who approaches as an Atatayin (i.e. with a felonious intent) even if he be one who has throughly mastered the Vedas; thereby he does not incur the sin of Brahamana murder.
The ancient Shastras have given great importance to the right of private defence and made it a religious duty of a person to kill a person who is an 'Atatayin' if he comes raising his weapon and if one fails to kill him, he would become guilty as a murder'. In the Mitakshra, Galava says. 'He who kills even a learned Brahamana who approaches as an Atatayin raising his weapon to strike does not become the murderer of a learned Brahamana. He would be so if he did not kill him'.
Brahaspati says 'He who kills a Brahamana felon versed in the Vedas and born of a good family does not commit a Brahamana murder; he would be guilty of Brahamana murder if he did not kill him'.
The conclusion of Smrati Candrika is that even a Brahamana felon coming to kill a man is by all means to be slain (3)
P.V. Kane in his treatise on the history of Dharmshashtra Volume III, Government Oriented Series Class-B. No. 16, deals with the important question of private defence of person and property as it was recognised by the Dharmashastra works. He also terms the invader as Atatayin (a desparate man) who is an incendiary or a poisoner or is armed with a weapon or is a robber carrying away another's wife or snatching by force a field.
According to Katyayana, 'No blame attaches to a man who kills wicked men that are about to kill another. 'Sanskrit text of it is as follows.
(Text recited)
The distinction of Brahamana and non-Brahamana so much insisted upon by Manu, Vashistha, etc. in that age of Indian laws, has disappeared. The 'Varna' theory is now a matter of history only. We are now as per the Indian Constitution and laws of the land, living in a caste-less society except recognising linguistic or religious minorities, or some reservations for the age old down trodden and less privileged classes of the society. Therefore, what Manu or Brahaspati, Katyayana laid down, is to be viewed in its application to all citizens now. Even before coming into force of the Indian Constitution, Indian Penal Code introduced by the Britishers made no distinction of caste, creed and therefore our reference to 'Dharamshastra' made above has been made only with the precise limited object of showing that the right or private defence of person and property was not only recognised but put at a very high pedestal in the ancient Indian jurisprudence also. They should not be read construed for any other purpose.
The above short survey of the old ancient Indians Laws which were known as 'Bharamshastras' and ''Smratees' would show that the English people, while enacting the provisions of right of private defence of person and property under the exceptions of Indian Penal Code (Sections 96 to 106) have virtually adopted or re-accepted the laws which were prevalent here. It goes without saying that the English law and the Roman Law on the subject of the private defence is in no way different from the Indian Law as mentioned above;
Of course, the Mitakshara according to Galava puts the right of private defence to such a high pedestal that if a person fails to defend from an 'Atatayin' who comes to strike raising his weapon, he would become guilty of murder.
Thus the right of private defence has withstood all tests and trials in all laws and has been recognised as such since centuries back. That being so, the Indian Penal Code's recognition of it is only a recognition of the natural rights or inherent rights which a human being possesses by his birth for living in the society. It is in this back ground that we have to appreciate the right of private defence of person and property exercised by the tillers of the suit in a desert area like Rajasthan where the only source of bread and butter to him and his family is the agricultural field. Even the ancient Dharamshastras provided this right to defend the field from 'Atatayin' a felon or an invader and what the accused Mana, Ramkaran, Mst. Bhurati and Mst. Panchuri did in defending themselves and their property is squarely covered by the present Section 100 so far as the death is concerned and Section 104, IPC so far as the injuries caused to the complainant party is concerned.
Mr. Mathur Public Prosecutor finding himself in difficulty on the point of getting the judgment of the learned Judge sustained on the question of actual possession, lastly submitted thai in any case, the accused exceeded the light of private defence. According to him, the injuries caused to the complainant party are much more in number and also severe in comparison to the accused party. If the question of right of private defence to person was required to be decided on the counting of number of injuries, we would have accepted the contention of Mr. Mathur, as undoubtedly he is correct in counting the numbers and there is no arithmetical mistake in it. But are we here to solve 'mathematical equations' or screen 'Statistical data' to find out 'correlation analysis'. 'Consistency analysis', or 'ratio analysis'? Surely we have to judge the human psychology as it is expected to be when placed in the situation of either 'strike or vanish', 'do or die' and not to solve the mathematical problems. Human problems can never be equated with those of Aljebra or Statistics
We have to put ourselves in the position of a tiller who with great expectations has prepared the soil for cultivation and then cultivated it being sure that he has got the title and possession of the property and he would reap the fruits of his labour. What would be the reaction when suddenly he finds that some person comes and tries to take possession of that cultivated ploughed field and thereby not only wants to deprive him of the land but also of the cultivation which had earlier taken place?
It is true that sitting here in the court room and while making a fine distinction between the extent of the right of private defence of person and property available to a party, we may, by analysing the niceties of provisions of Sections 100, 102, 103 and 104 of the Indian Penal Code, enter into a 'mental gymnasium' regarding the quantum of the force which should have been used. But can the tiller of the soil defending his source of livelihood and the ploughing and cultivation which he has done and which is likely to give him, hardly 'two square meals' a day with difficulty; weigh each blow which they would give to defend that property and person; in golden scales. Is he not entitled to protect himself and his property?
In order to judge the conduct of the present appellants in defending their field and person from the deceased Balu, Dhanna and others of the complainant party, we cannot do better than to take guidance from the important principles laid down by Hon'ble Justice Gajendra Gadkar (as he then was) in the leading case Jaidev v. State of Punjab wherein it was observed as follows:
In judging the conduct of a person who proves that he had a right of private defence, allowance has necessarily to be made for his feelings at the relevant time. He is faced with an assault which causes reasonable apprehension of death or grievous hurt and that inevitably creates in his mind some excitement and confusion. At such a moment, the upper most feeling in his mind would be to ward off the danger and to save himself and his property, and so, he would necessarily be anxious to strike a decisive blow in exercise of his right. It is no doubt true that in striking a decisive blow, he must not use more force than appears to be reasonably necessary. But in dealing with the question as to whether more force is used than is necessary or than was justified by the prevailing circumstances, it would be inappropriate to adopt tests of detached objectivity which would be so natural in a court room for instance long after the incident has taken place. The means which a threatened person adopts or the force which he uses should not be weighed in golden scales. To begin with, the person exercising a right of private defence must consider whether the threat to his person or his property is real and immediate. If he reaches the conclusion reasonably that the threat is immediate and real, he is entitled to exercise his right, In the exercise of his right, he must use force till the threat has disappeared. So long as the threat lasts and the right of private defence can be legitimately exercised it would not be fair to require that 'he should modulate his defence step by step, according to the attack, before there is reason to believe that the attack is over.Mr. Mathur, Public Prosecutor wants us to consider the question that more force was used than was necessary by adopting test of detached objectivity which would be so natural in a Court room for instance long after the incident has taken place. But that would be as Justice Fazal Ali has put in the above case (4)' expecting from the threatened person to use the force after weighing it in golden scales. Again that would be expecting from the accused that they should modulate their defence step by step according to the attack before there is reason to believe that the attack is over. This expectation is neither fair nor feasible.
In the ordinary course of human conduct the accused's upper most instinct when they are threatened with extinction of their person and property would be to ward off the threat by whatever methods and means they can adopt without permitting the opportunity to the complainant party to succeed in their objective.
17. Mr. Mathur has also placed reliance upon the judgment of the apex Court reported in Lakshmi Singh and Ors. v. State of Bihar : 1976CriLJ1736 and has relied upon the following head note:
(A) Penal Code (1860). Section 300--Murder case--Nonexplanation of injuries sustained by accused-Inferences to be drawn Criminal Application Nos. 479 and 483 of 1968. Dated 30-4-1971 (Pat.) Reversed (Evidence Act (1872). Sections 114 and (3).
In a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences;
(1) that the prosecution has suppressed the genensis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case : 1968CriLJ1479 and : AIR1975SC1674 Relied on.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of iaterested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.
There may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries AIR 1965 SC 1478 Relied on.
Held, on facts and circumstances that the High Court was in error in brushing aside the serious infirmity in the prosecution case regarding non-explanation of injuries sustained by the accused on unconvincing premises.
The question whether the Investigating Officer was informed about the injuries was wholly irrelevant to the issue, particularly when the very Doctor who examined one of the deceased and the prosecution witnesses was the person who examined the accused also.
In view of the inherent improbabilities the serious omission and infirmities, the interested or inimical nature of the evidence and other circumstances, it was clear that the prosecution had miserably failed to prove the case against the appellants beyond reasonable doubt. Cr. App. Nos. 479 and 483 of 1968 D/- 30-4-1971 (Pat). Reversed.
18. In my considered opinion, the trial court had committed a serious error in rejecting the plea of private defence of person because appellant's injury has not been explained and the medical evidence consecutively says that it was within same duration of the incident. The mere fact that there were some more accused persons on the scene and accused appellant has tried to make out a case that he alone was there cannot be sufficient to discard the defence version.
19. The crux of the matter is that the appellant received a grievous injury on the forehead during the incident which has not been explained. This was in the field which was in their possession for 40 years and the complainant party came with oxen which was sought to be forcibly taken in the field of the accused for grazing and when the accused resisted the incident took place.
20. In my opinion, the principle laid down in the above two decisions in Man's case (supra) and Lakshmi Singh's case (supra) fully and completely applies the present case. The accused is an agriculturist. For him, the agriculture field was his livelihood gor giving bread to him and his family. Grazing of crop in his field by the oxen forcibly by the complainant party was bound to be resisted and if in that resistence the complainant party caused a grievous injury to the accused, the accused was within his right to defend himself and his property and for that purpose to inflict injury on the complainant party to such an extent that may cause death.
21. It is well known established principle of law that it is not possible at that time for the accused to weigh every blow which he would inflict in exercising such a right in a golden scales before inflicting it. I am, therefore, convinced that the finding of the trial court that the accused exceeded right of private defence is not tenable. In my opinion that the appellant was within his right of private defence of the body or person to cause death having received grievous injury himself and his property having been trespassed and the compliainant party insisting on the grazing of the oxen in his field. In view of the above it is not necessary to discuss the entire evidence. The entire argument of Mr. Mathur is based on a factual rinding of the trial court. Taking the full to be correct except the finding about receiving of the grievous hurt by the accused in incident for which a contrary finding has been giver by the trial court, with which I am not inclined to agree,
22. Since the appellant was within his right, he cannot be convicted under Section 304 Part 11 also
23. Consequently the appeal succeeds, the conviction of the accusedappellant under Section 304 part II I.P is set aside. He is acquitted of all charges. He is on bail, and need not surrender to his bail bonds.