Semantic Analysis by spaCy
Dhanna Lai and anr. Vs. State of Rajasthan
Decided On : Feb-07-1989
Court : Rajasthan
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Criminal Appeal No. 485 of 1987', 'appellant' => 'Dhanna Lai and anr.', 'authreffered' => '', 'casename' => 'Dhanna Lai and anr. Vs. State of Rajasthan', 'casenote' => 'Penal Coda - Trespass--Dispute over possession--Appellants sowing field--Complainant party entered field--Held, visit was not innocent.;The dispute over possession had commenced since long and the appellants never yielded to surrender the possession. The proper course for the purchaser was, therefore, to pursue legal remedies for recovery of possession. Instead of pursuing the legal remedy, the members of the complainant party assembled together and collected some more persons and thereafter went in a move to the field in dispute where the appellants were sowing the seeds. In these circumstances; it can be easily inferred that the visit of the members of the complainant party was not innocent.;(b) Penal Code - Section 302 and 304--Death after 7 days in hospital--Single blow resulted in death-Blows not repeated--No intention to cause death--Knowledge can be attributed to accused-Held, offence falls Under Section 304.;The incident is alleged to have taken place on 19-7-1985. Umrao Khan died in the hospital nearly after 7 days on 26-7-1985. Accused Dhanna Lal inflicted only one blow. There was no repetition of blows on his part. The single blow unfortunately resulted in death of the victim. Looking to the long lapse of 7 days in between the infliction of the injuries and the death resulting from it, it cannot be precisely said that the injury sustained by the deceased victim was sufficient in the ordinary course of nature to cause death. There was no intention on the part of accused Dhanna Lal to cause the death of the victim. The trouble was invited by the deceased victim and the members of his family when they visited the field in dispute. In these circumstance, only knowledge can be attributed to the appellant Dhanna Lal that he did an act which is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. In that event, the offence will again fall Under Section 304. IPC.;Appeal Partly Allowed. - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ] Determination as to Juvenile - Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force - Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007 - As such, Accused has to be treated as Juvenile under the said Act. - The trial court convicted the three accused Harak Chand, Nathu Lal and Ratan Lal Under Section 324 IPC and let them off on the Probation of good conduct. Looking to the long lapse of 7 days in between the infliction of the injuries and the death resulting from it, it cannot be precisely said that the injury sustained by the deceased victim was sufficient in the ordinary course of nature to cause death. 1,000/-.in default of the payment of fine to further undergo six month's like imprisonment.', 'caseanalysis' => null, 'casesref' => 'State of Bihar v. Nathu and Ors.;', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Rajasthan', 'court_type' => 'HC', 'decidedon' => '1989-02-07', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' D.L. Mehta and; S.S. Byas, JJ.', 'judgement' => '<p style="text-align: justify;">S.S. Byas, J.</p><p style="text-align: justify;">1. Accused Dhanna Lal and Babu Lal have been convicted Under Section 302, IPC and each has been sentenced to imprisonment for life with a fine of Rs. 1,000/-, in default of the payment of fine to further under go six months' simple imprisonment by the learned Sessions Judge, Jhalawar by his judgment dated November 23, 1987. The accused have come up in appeal and challenge their conviction.</p><p style="text-align: justify;">2. Stated in short, the prosecution case is that DW 1 Smt. Bhanwari Bai was a Khatedar tenant of some fields situate in village Kollu Khedi PS Jhawar, District Jhalawar. She sold her Khatedari in some of these fields to PW 1 Ismail Khan and his deceased brother Umrao Khan along with two or three persons on 6-7-1985 by executing the registered sale-deed Ex.P 28 in their favour. Possession of the fields were handed over to them by Smt. Bhanwari Bai on the same day. At about 3.00 or 4.00 p.m on 19-7-1985 PW 1 Ismail went to these fields and found the appellants Dhanna Lal and Babu Lai ploughing a portion of 13 Biswas. Many other persons viz. Harak Chand, Nathu Lal, Ratan Lal, Maugilal Bhanwarlal, another Ratanlal Nannu Lal. Gangaram and Mathura Ram were also there. They all had deadly arms with them. The two appellants had Swords. Seeing them there, Ismail Khan went to the village and collected some persons. He told them that the accused party was illegally sowing the seeds in the portion of 13 Biswas. These persons along with Sarpanch Ismail PW 5 came to the place where the appellants were sowing the seeds. The Sarpanch told the appellants and their companions that the fields had purchased by Ismail Khan PW 1. This annoyed and irked the appellants. Appellant Babu Lal shouted that none should be spared. Thereupon appellant Dhanna Lal struck a blow of his sword on the head of Umrao Khan Accused Babu Lal also struck one blow with his sword on the mouth of Umrao Khan. Umrao Khan fell down. There was profuse bleeding from his wounds and the clothes he was wearing got smeared, with it. Ismail Khan (PW 1), Mosam Khan and Isan Khan tried to save Umrao Khan. The appellants and their companions did not spare even these three persons and belaboured them. Thereafter the appellants and their companions named above retreated and went towards the village. Umrao Khan became unconscious on the spot He was taken in a bullock cart to Police Station Jhawar where PW 1 Ismail Khan lodged verbal report Ex.P 1 of the incident. The Police registered a case Under Sections 307, 148 etc. of the Penal Code and proceeded with investigation. The condition of Umrao Khan was rapidly deteriorating and he was taken to the Government Hospital, Jhalawar for treatment. His condition did not improve and he was taken to the General Hospital, Kota where he was admitted for treatment. Despite medical help Umrao Khan did not survive and breathe his last on 26-7-1985. The Police added Section 302 IPC during investigation. The Investigating Officer visited the site and prepared the site plan. The inquest report of the victim's dead body was prepared. The post mortem examination over the victim's dead body was conducted on 26-7-1985 by Medical Jurist Dr. Vijay (PW 16). The Doctor noticed the following ante-mortem injuries on the victim's dead body:</p><p style="text-align: justify;">External: 1. Wound 6' long vertically oblique on right fronto parietal temporal region of scalp.</p><p style="text-align: justify;">2. Wound 2-1/2' long oblique just below lower lip.</p><p style="text-align: justify;">Internal: Fracture of right fronto temporal parietal bone of scull.</p><p style="text-align: justify;">3. In the opinion of Dr. Vijay, the cause of death was due to come as a result of head injury. The post mortem examination report issued by him is Ex. P 30. The injuries Ismail Khan, Isan Khan and Mosam Khan were examined on 19-7-1985 by PW 4 Dr. Jogendra Pal Singh, the then Medical Officer Incharge, Government Dispensary, Jhawar. Simple injuries were found on their persons. The injury reports are Ex.P-5, Ex, P-6. Doctor Jogendra Pal Singh also recorded the statement Ex. P-8 of Umrao Khan on 19-7-1985 when he was taken to him. The appellants and their associates, were rounded up. The blood stained clothes etc. were sent for chemical examination to Rajasthan State Forensic Science Laboratory, Jaipur. The report received from there is Ex. P-31 Human blood was found on them. On the completion of the investigation, the Police presented a crime report against as maay as 11 accused person viz. Harak Chand, Nathu Lal, Ratan Lal, Mangi Lal Bhanwar Lal, another Ratan Lal, Nannu Lal Ganga Ram, Mathura Lal and the two appellants Dhanna Lal and Babu Lal in the court of the Judicial Magistrate, who in his turn committed the case for trial to the court of Sessions. The learned Sessions Judge framed charged Under Sections 302, 302/149, 148, 324 and 324/149 IPC against all of them, to which they pleaded not guilty and faced the trial. The defence taken was that the field in depute Where the incident allege to have taken party came their possession and cultivation since long. The members of the complaint party come there on the day of incident to unlawfully and forcibly dispossess them. They denied that they used violence against any member of the complainant party. In support of its case, the prosecution examined 16 witnesses and filed some documents. In defence, the accused examined one witness Bhanwari Bai (DW 1). On the conclusion of trial, the learned Sessions Judge held that the field in which the, incident took place was in possession and cultivation, of the appellants. But there was no occassion to exercise the right of private defence of property. The learned Sessions Judge further held that there was no incriminating material against the six accused persons Mangi Lal Bhanwar Lal, Ratan Lal, Nannu Lal, Ganga Ram and Mathura Lal. They were accordingly acquitted of the offence they were charged with. The trial court convicted the three accused Harak Chand, Nathu Lal and Ratan Lal Under Section 324 IPC and let them off on the Probation of good conduct. They were also acquitted of the offence Under Section 302 or 302/149 IPC. The Sessions Judge held the charge Under Section 302 IPC duly brought home to the appellants Dhanna Lai and Babu Lal. They were consequently convicted and sentenced as mentioned at the very outset. Aggrieved against their conviction, Dhanna Lal and Babu Lal have taken this joint appeal</p><p style="text-align: justify;">4. We have heard Mr. A.K. Gupta-learned Counsel for the appellants and the learned Public Prosecutor, Mr. O.P. Sharma. We have also gone through the case filed carefully.</p><p style="text-align: justify;">5. In impeaching the conviction, Mr. Gupta contended that the field in which the incident is alleged to have taken places was in possession of the appellants as per finding of the court below. The deceased Umrao Khan was struck only two blows, ons on the head and the other on the lip. The injury on the lip was neither fatal nor dangerous. It was a simple injury. The author of the head injury which resulted in death is accused Dhanna Lal. The injury on the lip was caused by appellant Babu Lal. The members of the complainat party, including the deceased had come to the place of incident for unlawfully and forcibly dispossessing the appellants. The appellants had, therefore, a right of private defence of property. The right of private defence was undisputedly available to the appellants. But it was wrongly denied to them by the court below. It was also argued that the incident took place on 19-7-1985 and Umrao Khan died on 26-7-1985. There was no intention to cause his death. The long interval of 7 or 8 days in the infliction of injury and the death indicates that the head injury of the victim was not sufficient in the ordinary course of nature to cause death. The offence, therefore, even if the right of private defence is denied to the appellants does not travel beyond Section 304 IPC. In reply, the learned Public Prosecutor strived hard and made all efforts to support the conviction to the appellants.</p><p style="text-align: justify;">6. Since Mr. Gupta did not challenge the finding of the court below that accused Dhanna Lal strcuk the below with the sword on the head of the deceased victim and there by caused his death and the other appellant Babu Lai struck a blow on the lip of the deceased victim. We need not touch the evidence of the eye witnessess on the question of the infliction of blows. We will examine the contentions of Mr. Gupta accepting the finding of the court below on the question of the Infliction to the deceased victim by the appellants.</p><p style="text-align: justify;">7. The site plan of the place of incident is Ex. P-26. The incident is alleged to have taken place at the place shown by mark 'A' in Ex. P-26. This field shown by mark 'A' has been described to be in possession of the acquitted accused Mathura Lal. The acquittal accused Mathura Lal is the father of the appellant Dhanna Lal. Thus the incident had taken place in the field of the appellant Dhanna Lal.</p><p style="text-align: justify;">8. On page 19 of the judgment, the Sessions Judge has discussed the question of possession at length and recorded the finding that this field shown by mark 'A' in Ex. P-26 was in possession of the appellants. This finding on the question has not been and perhaps could not be challenged by the learned Public Prosecutor. The appellants were thus in possession of the field in dispute where the incident had taken place.</p><p style="text-align: justify;">9. The pertinent question which arises for our consideration is whether the appellants had a right of the private defence of property. Section 96 IPC speaks that nothing is an offence which is done in the exercise of the private defence. Section 97 IPC further carries this right and lays down that every citizen has a right to defend his property against criminal trespass or an attempt to commit criminal trespass. Section 99 IPC lays down the restrictions and defines the parameters within which the right of private defence is to be exercised. One of these restrictions is that the right of private defence should not extend to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 103 IPC speaks as to when the right of private defence of property extends to causing death. Section 104 IPC lays down the parameters where such a right extends to causing any harm other than death. Section 103 IPC permits the causing of death where the offence to be or likely to be committed is one of those mentioned in clauses first to fourthly. Section 104 IPC permits the causing of any harm other than death where the offence to be or likely to be committed against the property is of criminal trespass. The offence of criminal trespass has not been included in clause first to fourthly of S. 103 IPC. The offence of criminal trespass finds place in S. 104 of the Penal Code Therefore the appellants could not exercise the right of private defence of property to the extent of causing death. Of course, they were entitled to defend their possession. In defending their possession, they could cause any harm short of death.</p><p style="text-align: justify;">10. Accused Babu Lai according to all the eye witnesses of the incident inflicted injuries of sword on the lip of the deceased victim Umarao Khan. This injury as per medical evidence was simple. Accused Babu Lal had the right of defend possession. Causing of a simple injury by him in defending his possession cannot be taken to mean that he caused more harm than necessary. Only one blow was inflicted by him. There is no repetition of blows on his part. He has been convicted Under Section 302 IPC. His conviction is thus wholly wrong and unsustainable.</p><p style="text-align: justify;">11. The learned Public Prosecutor contended that accused Babu Lal be convicted Under Section 302 with the aid of Section 34 IPC. We are unable to subscribe the view propounded before us by the learned Public Prosecutor. If the accused assembled to protect their possession over the property, it cannot be said that they had assembled to commit any offence defending the possession over property is not an offence as such S. 34 IPC can have no applicability. We are fortified in our view by the observations made in State of Bihar v. Nathu and Ors. : 1970CriLJ5 . The contention of the learned Public Prosecutor thus fails.</p><p style="text-align: justify;">12. Coming to the case against the appellant Dhanna Lal, he is the author of the head injury which resulted in the victim's death. He caused only one injury to the deceased victim which unfortunately caused his death after 7 or 8 days. As dicussed above, the law did not permit him to cause death in an attempt to defend his possession over the field in dispute. In causing the death, he has exceeded the right of private defence. His case, therefore, falls within the exception of 2 of Section 300 IPC. He should have been, therefore, convicted under the first part of Section 304 IPC his conviction Under Section 302 IPC is not justified.</p><p style="text-align: justify;">13. It was contended by the learned Public Prosecutor that every trespass is not covered by Section 304 IPC. Here is a case where the members of the complainant party along with other persons went to the place where the appellants were ploughing the field to prevail over them to leave the possession as the filed had been purchased by PW. 1 Ismail Khan and the deceased Umrao Khan. The appellants, therefore, had no occassion to use force or violence. We do not feel persuaded by the submission of the learned Public Prosecutor. The dispute ovet possession had commenced since long and the appellants never yielded to surrender the possession. The proper course for the purchaser was, therefore, to pursue legal remedies for recovery of possession. Instead of oursuing the legal remedy, the members of the complainant party assembled together and collected some more persons and thereafter went in a more to the field in dispute where the appellants were sowing the seeds, In these circumstances, it can be easily inferred that the visit of the members of the complainant party was not innocent. It is not a case of simple civil trespass. We are, therefore, unable to accept the contention of the learned Public Prosecutor.</p><p style="text-align: justify;">14. There is yet another aspect of the matter. The incident is alleged to have taken place on 19-7-1985. Umrao Khan died in the hospital nearly after 7 days on 26-7-1985. Accused Dhanna Lal inflicted only one blow. There was no repetition of blows on his part. The single blow unfortunately resulted in death of the victim. Looking to the long lapse of 7 days in between the infliction of the injuries and the death resulting from it, it cannot be precisely said that the injury sustained by the deceased victim was sufficient in the ordinary course of nature to cause death. There was no intention on the part of accused Dhanna Lal to cause the death of the victim. The trouble was invited by the deceased victim and the members of his family when they visited the field in dispute. In these circumstances, only knowledge can be attributed to the appellant Dhanna Lal that be did an act which is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. In that event, the offence will again fall Under Section 304 IPC.</p><p style="text-align: justify;">15. In the result,</p><p style="text-align: justify;">(1) The appeal of accused Babu Lal is allowed. His conviction Under Section 302 IPC and the sentence awarded to him are set aside. He is acquitted of the said offence. He is in jail and shall be forthwith set at liberty if not wanted in any other case, and</p><p style="text-align: justify;">(2) The appeal of accused Babu Lal is partly allowed. His conviction and sentence Under Section 302. IPC ate set aside and in lieu thereof he is convicted Under Section 304 IPC arid re sentenced to five year's rigorous imprisoment with a fine of Rs. 1,000/-. in default of the payment of fine to further undergo six month's like imprisonment.</p><p style="text-align: justify;">16. The apeal is accordingly disposed of,<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '1990(1)WLN489', 'ratiodecidendi' => '', 'respondent' => 'State of Rajasthan', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '759974' ) ) $title_for_layout = 'Dhanna Lai and anr. Vs. State of Rajasthan Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'the Penal Code', (int) 1 => 'Section 304 IPC', (int) 2 => 'Section 96', (int) 3 => 'Section 97', (int) 4 => 'Section 99', (int) 5 => 'Section 103', (int) 6 => 'Section 34 IPC', (int) 7 => 'Section 304', (int) 8 => 'Section 302 IPC', (int) 9 => 'Section 304 IPC', (int) 10 => 'Section 302 IPC', (int) 11 => 'Section 302', (int) 12 => 'Section 304' ), 'PERSON' => array( (int) 0 => 'S.S. 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Nathu and Ors', (int) 32 => 'Public Prosecutor', (int) 33 => 'Public Prosecutor', (int) 34 => 'Public Prosecutor', (int) 35 => 'IPC', (int) 36 => 'IPC' ), 'CARDINAL' => array( (int) 0 => '1,000/-', (int) 1 => 'two or three', (int) 2 => '6', (int) 3 => 'about 3.00', (int) 4 => '4.00', (int) 5 => '13', (int) 6 => 'two', (int) 7 => '13', (int) 8 => 'one', (int) 9 => 'three', (int) 10 => '307', (int) 11 => '148', (int) 12 => '26', (int) 13 => '26', (int) 14 => '1', (int) 15 => '30', (int) 16 => '11', (int) 17 => 'two', (int) 18 => '302', (int) 19 => '148', (int) 20 => '324', (int) 21 => '324/149', (int) 22 => '16', (int) 23 => 'six', (int) 24 => 'three', (int) 25 => 'only two', (int) 26 => '26', (int) 27 => '19', (int) 28 => 'One', (int) 29 => 'Only one', (int) 30 => 'only one', (int) 31 => '2', (int) 32 => '26', (int) 33 => 'only one', (int) 34 => '1,000/-' ), 'DATE' => array( (int) 0 => 'six months'', (int) 1 => 'November 23, 1987', (int) 2 => '1985', (int) 3 => 'the same day', (int) 4 => '19-7-1985', (int) 5 => 'PW 5', (int) 6 => 'PW 1', (int) 7 => '1985', (int) 8 => '1985', (int) 9 => 'PW 16', (int) 10 => '19-7-1985', (int) 11 => '19-7-1985', (int) 12 => '302/149', (int) 13 => 'the day', (int) 14 => '19-7-1985', (int) 15 => '7 or 8 days', (int) 16 => '1970CriLJ5', (int) 17 => '7 or 8 days', (int) 18 => '19-7-1985', (int) 19 => '7 days', (int) 20 => '7 days', (int) 21 => 'five year's', (int) 22 => 'six month's' ), 'GPE' => array( (int) 0 => 'District Jhalawar', (int) 1 => 'Harak Chand', (int) 2 => 'Jhalawar', (int) 3 => 'Jhawar', (int) 4 => 'Jaipur', (int) 5 => 'Harak Chand', (int) 6 => 'Harak Chand', (int) 7 => 'PW' ), 'EVENT' => array( (int) 0 => 'PW 1 Ismail Khan' ), 'PRODUCT' => array( (int) 0 => 'Swords', (int) 1 => 'P-31' ), 'ORDINAL' => array( (int) 0 => 'first', (int) 1 => 'first', (int) 2 => 'first' ) ) $desc = array( 'Judgement' => array( 'id' => '759974', 'acts' => '', 'appealno' => 'D.B. Criminal Appeal No. 485 of 1987', 'appellant' => 'Dhanna Lai and anr.', 'authreffered' => '', 'casename' => 'Dhanna Lai and anr. Vs. State of Rajasthan', 'casenote' => 'Penal Coda - Trespass--Dispute over possession--Appellants sowing field--Complainant party entered field--Held, visit was not innocent.;The dispute over possession had commenced since long and the appellants never yielded to surrender the possession. The proper course for the purchaser was, therefore, to pursue legal remedies for recovery of possession. Instead of pursuing the legal remedy, the members of the complainant party assembled together and collected some more persons and thereafter went in a move to the field in dispute where the appellants were sowing the seeds. In these circumstances; it can be easily inferred that the visit of the members of the complainant party was not innocent.;(b) Penal Code - Section 302 and 304--Death after 7 days in hospital--Single blow resulted in death-Blows not repeated--No intention to cause death--Knowledge can be attributed to accused-Held, offence falls Under Section 304.;The incident is alleged to have taken place on 19-7-1985. Umrao Khan died in the hospital nearly after 7 days on 26-7-1985. Accused Dhanna Lal inflicted only one blow. There was no repetition of blows on his part. The single blow unfortunately resulted in death of the victim. Looking to the long lapse of 7 days in between the infliction of the injuries and the death resulting from it, it cannot be precisely said that the injury sustained by the deceased victim was sufficient in the ordinary course of nature to cause death. There was no intention on the part of accused Dhanna Lal to cause the death of the victim. The trouble was invited by the deceased victim and the members of his family when they visited the field in dispute. In these circumstance, only knowledge can be attributed to the appellant Dhanna Lal that he did an act which is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. In that event, the offence will again fall Under Section 304. IPC.;Appeal Partly Allowed. - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ] Determination as to Juvenile - Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force - Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007 - As such, Accused has to be treated as Juvenile under the said Act. - The trial court convicted the three accused Harak Chand, Nathu Lal and Ratan Lal Under Section 324 IPC and let them off on the Probation of good conduct. Looking to the long lapse of 7 days in between the infliction of the injuries and the death resulting from it, it cannot be precisely said that the injury sustained by the deceased victim was sufficient in the ordinary course of nature to cause death. 1,000/-.in default of the payment of fine to further undergo six month's like imprisonment.', 'caseanalysis' => null, 'casesref' => 'State of Bihar v. Nathu and Ors.;', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Rajasthan', 'court_type' => 'HC', 'decidedon' => '1989-02-07', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' D.L. Mehta and; S.S. Byas, JJ.', 'judgement' => '<p style="text-align: justify;">S.S. Byas, J.</p><p style="text-align: justify;">1. Accused Dhanna Lal and Babu Lal have been convicted Under Section 302, IPC and each has been sentenced to imprisonment for life with a fine of Rs. 1,000/-, in default of the payment of fine to further under go six months' simple imprisonment by the learned Sessions Judge, Jhalawar by his judgment dated November 23, 1987. The accused have come up in appeal and challenge their conviction.</p><p style="text-align: justify;">2. Stated in short, the prosecution case is that DW 1 Smt. Bhanwari Bai was a Khatedar tenant of some fields situate in village Kollu Khedi PS Jhawar, District Jhalawar. She sold her Khatedari in some of these fields to PW 1 Ismail Khan and his deceased brother Umrao Khan along with two or three persons on 6-7-1985 by executing the registered sale-deed Ex.P 28 in their favour. Possession of the fields were handed over to them by Smt. Bhanwari Bai on the same day. At about 3.00 or 4.00 p.m on 19-7-1985 PW 1 Ismail went to these fields and found the appellants Dhanna Lal and Babu Lai ploughing a portion of 13 Biswas. Many other persons viz. Harak Chand, Nathu Lal, Ratan Lal, Maugilal Bhanwarlal, another Ratanlal Nannu Lal. Gangaram and Mathura Ram were also there. They all had deadly arms with them. The two appellants had Swords. Seeing them there, Ismail Khan went to the village and collected some persons. He told them that the accused party was illegally sowing the seeds in the portion of 13 Biswas. These persons along with Sarpanch Ismail PW 5 came to the place where the appellants were sowing the seeds. The Sarpanch told the appellants and their companions that the fields had purchased by Ismail Khan PW 1. This annoyed and irked the appellants. Appellant Babu Lal shouted that none should be spared. Thereupon appellant Dhanna Lal struck a blow of his sword on the head of Umrao Khan Accused Babu Lal also struck one blow with his sword on the mouth of Umrao Khan. Umrao Khan fell down. There was profuse bleeding from his wounds and the clothes he was wearing got smeared, with it. Ismail Khan (PW 1), Mosam Khan and Isan Khan tried to save Umrao Khan. The appellants and their companions did not spare even these three persons and belaboured them. Thereafter the appellants and their companions named above retreated and went towards the village. Umrao Khan became unconscious on the spot He was taken in a bullock cart to Police Station Jhawar where PW 1 Ismail Khan lodged verbal report Ex.P 1 of the incident. The Police registered a case Under Sections 307, 148 etc. of the Penal Code and proceeded with investigation. The condition of Umrao Khan was rapidly deteriorating and he was taken to the Government Hospital, Jhalawar for treatment. His condition did not improve and he was taken to the General Hospital, Kota where he was admitted for treatment. Despite medical help Umrao Khan did not survive and breathe his last on 26-7-1985. The Police added Section 302 IPC during investigation. The Investigating Officer visited the site and prepared the site plan. The inquest report of the victim's dead body was prepared. The post mortem examination over the victim's dead body was conducted on 26-7-1985 by Medical Jurist Dr. Vijay (PW 16). The Doctor noticed the following ante-mortem injuries on the victim's dead body:</p><p style="text-align: justify;">External: 1. Wound 6' long vertically oblique on right fronto parietal temporal region of scalp.</p><p style="text-align: justify;">2. Wound 2-1/2' long oblique just below lower lip.</p><p style="text-align: justify;">Internal: Fracture of right fronto temporal parietal bone of scull.</p><p style="text-align: justify;">3. In the opinion of Dr. Vijay, the cause of death was due to come as a result of head injury. The post mortem examination report issued by him is Ex. P 30. The injuries Ismail Khan, Isan Khan and Mosam Khan were examined on 19-7-1985 by PW 4 Dr. Jogendra Pal Singh, the then Medical Officer Incharge, Government Dispensary, Jhawar. Simple injuries were found on their persons. The injury reports are Ex.P-5, Ex, P-6. Doctor Jogendra Pal Singh also recorded the statement Ex. P-8 of Umrao Khan on 19-7-1985 when he was taken to him. The appellants and their associates, were rounded up. The blood stained clothes etc. were sent for chemical examination to Rajasthan State Forensic Science Laboratory, Jaipur. The report received from there is Ex. P-31 Human blood was found on them. On the completion of the investigation, the Police presented a crime report against as maay as 11 accused person viz. Harak Chand, Nathu Lal, Ratan Lal, Mangi Lal Bhanwar Lal, another Ratan Lal, Nannu Lal Ganga Ram, Mathura Lal and the two appellants Dhanna Lal and Babu Lal in the court of the Judicial Magistrate, who in his turn committed the case for trial to the court of Sessions. The learned Sessions Judge framed charged Under Sections 302, 302/149, 148, 324 and 324/149 IPC against all of them, to which they pleaded not guilty and faced the trial. The defence taken was that the field in depute Where the incident allege to have taken party came their possession and cultivation since long. The members of the complaint party come there on the day of incident to unlawfully and forcibly dispossess them. They denied that they used violence against any member of the complainant party. In support of its case, the prosecution examined 16 witnesses and filed some documents. In defence, the accused examined one witness Bhanwari Bai (DW 1). On the conclusion of trial, the learned Sessions Judge held that the field in which the, incident took place was in possession and cultivation, of the appellants. But there was no occassion to exercise the right of private defence of property. The learned Sessions Judge further held that there was no incriminating material against the six accused persons Mangi Lal Bhanwar Lal, Ratan Lal, Nannu Lal, Ganga Ram and Mathura Lal. They were accordingly acquitted of the offence they were charged with. The trial court convicted the three accused Harak Chand, Nathu Lal and Ratan Lal Under Section 324 IPC and let them off on the Probation of good conduct. They were also acquitted of the offence Under Section 302 or 302/149 IPC. The Sessions Judge held the charge Under Section 302 IPC duly brought home to the appellants Dhanna Lai and Babu Lal. They were consequently convicted and sentenced as mentioned at the very outset. Aggrieved against their conviction, Dhanna Lal and Babu Lal have taken this joint appeal</p><p style="text-align: justify;">4. We have heard Mr. A.K. Gupta-learned Counsel for the appellants and the learned Public Prosecutor, Mr. O.P. Sharma. We have also gone through the case filed carefully.</p><p style="text-align: justify;">5. In impeaching the conviction, Mr. Gupta contended that the field in which the incident is alleged to have taken places was in possession of the appellants as per finding of the court below. The deceased Umrao Khan was struck only two blows, ons on the head and the other on the lip. The injury on the lip was neither fatal nor dangerous. It was a simple injury. The author of the head injury which resulted in death is accused Dhanna Lal. The injury on the lip was caused by appellant Babu Lal. The members of the complainat party, including the deceased had come to the place of incident for unlawfully and forcibly dispossessing the appellants. The appellants had, therefore, a right of private defence of property. The right of private defence was undisputedly available to the appellants. But it was wrongly denied to them by the court below. It was also argued that the incident took place on 19-7-1985 and Umrao Khan died on 26-7-1985. There was no intention to cause his death. The long interval of 7 or 8 days in the infliction of injury and the death indicates that the head injury of the victim was not sufficient in the ordinary course of nature to cause death. The offence, therefore, even if the right of private defence is denied to the appellants does not travel beyond Section 304 IPC. In reply, the learned Public Prosecutor strived hard and made all efforts to support the conviction to the appellants.</p><p style="text-align: justify;">6. Since Mr. Gupta did not challenge the finding of the court below that accused Dhanna Lal strcuk the below with the sword on the head of the deceased victim and there by caused his death and the other appellant Babu Lai struck a blow on the lip of the deceased victim. We need not touch the evidence of the eye witnessess on the question of the infliction of blows. We will examine the contentions of Mr. Gupta accepting the finding of the court below on the question of the Infliction to the deceased victim by the appellants.</p><p style="text-align: justify;">7. The site plan of the place of incident is Ex. P-26. The incident is alleged to have taken place at the place shown by mark 'A' in Ex. P-26. This field shown by mark 'A' has been described to be in possession of the acquitted accused Mathura Lal. The acquittal accused Mathura Lal is the father of the appellant Dhanna Lal. Thus the incident had taken place in the field of the appellant Dhanna Lal.</p><p style="text-align: justify;">8. On page 19 of the judgment, the Sessions Judge has discussed the question of possession at length and recorded the finding that this field shown by mark 'A' in Ex. P-26 was in possession of the appellants. This finding on the question has not been and perhaps could not be challenged by the learned Public Prosecutor. The appellants were thus in possession of the field in dispute where the incident had taken place.</p><p style="text-align: justify;">9. The pertinent question which arises for our consideration is whether the appellants had a right of the private defence of property. Section 96 IPC speaks that nothing is an offence which is done in the exercise of the private defence. Section 97 IPC further carries this right and lays down that every citizen has a right to defend his property against criminal trespass or an attempt to commit criminal trespass. Section 99 IPC lays down the restrictions and defines the parameters within which the right of private defence is to be exercised. One of these restrictions is that the right of private defence should not extend to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 103 IPC speaks as to when the right of private defence of property extends to causing death. Section 104 IPC lays down the parameters where such a right extends to causing any harm other than death. Section 103 IPC permits the causing of death where the offence to be or likely to be committed is one of those mentioned in clauses first to fourthly. Section 104 IPC permits the causing of any harm other than death where the offence to be or likely to be committed against the property is of criminal trespass. The offence of criminal trespass has not been included in clause first to fourthly of S. 103 IPC. The offence of criminal trespass finds place in S. 104 of the Penal Code Therefore the appellants could not exercise the right of private defence of property to the extent of causing death. Of course, they were entitled to defend their possession. In defending their possession, they could cause any harm short of death.</p><p style="text-align: justify;">10. Accused Babu Lai according to all the eye witnesses of the incident inflicted injuries of sword on the lip of the deceased victim Umarao Khan. This injury as per medical evidence was simple. Accused Babu Lal had the right of defend possession. Causing of a simple injury by him in defending his possession cannot be taken to mean that he caused more harm than necessary. Only one blow was inflicted by him. There is no repetition of blows on his part. He has been convicted Under Section 302 IPC. His conviction is thus wholly wrong and unsustainable.</p><p style="text-align: justify;">11. The learned Public Prosecutor contended that accused Babu Lal be convicted Under Section 302 with the aid of Section 34 IPC. We are unable to subscribe the view propounded before us by the learned Public Prosecutor. If the accused assembled to protect their possession over the property, it cannot be said that they had assembled to commit any offence defending the possession over property is not an offence as such S. 34 IPC can have no applicability. We are fortified in our view by the observations made in State of Bihar v. Nathu and Ors. : 1970CriLJ5 . The contention of the learned Public Prosecutor thus fails.</p><p style="text-align: justify;">12. Coming to the case against the appellant Dhanna Lal, he is the author of the head injury which resulted in the victim's death. He caused only one injury to the deceased victim which unfortunately caused his death after 7 or 8 days. As dicussed above, the law did not permit him to cause death in an attempt to defend his possession over the field in dispute. In causing the death, he has exceeded the right of private defence. His case, therefore, falls within the exception of 2 of Section 300 IPC. He should have been, therefore, convicted under the first part of Section 304 IPC his conviction Under Section 302 IPC is not justified.</p><p style="text-align: justify;">13. It was contended by the learned Public Prosecutor that every trespass is not covered by Section 304 IPC. Here is a case where the members of the complainant party along with other persons went to the place where the appellants were ploughing the field to prevail over them to leave the possession as the filed had been purchased by PW. 1 Ismail Khan and the deceased Umrao Khan. The appellants, therefore, had no occassion to use force or violence. We do not feel persuaded by the submission of the learned Public Prosecutor. The dispute ovet possession had commenced since long and the appellants never yielded to surrender the possession. The proper course for the purchaser was, therefore, to pursue legal remedies for recovery of possession. Instead of oursuing the legal remedy, the members of the complainant party assembled together and collected some more persons and thereafter went in a more to the field in dispute where the appellants were sowing the seeds, In these circumstances, it can be easily inferred that the visit of the members of the complainant party was not innocent. It is not a case of simple civil trespass. We are, therefore, unable to accept the contention of the learned Public Prosecutor.</p><p style="text-align: justify;">14. There is yet another aspect of the matter. The incident is alleged to have taken place on 19-7-1985. Umrao Khan died in the hospital nearly after 7 days on 26-7-1985. Accused Dhanna Lal inflicted only one blow. There was no repetition of blows on his part. The single blow unfortunately resulted in death of the victim. Looking to the long lapse of 7 days in between the infliction of the injuries and the death resulting from it, it cannot be precisely said that the injury sustained by the deceased victim was sufficient in the ordinary course of nature to cause death. There was no intention on the part of accused Dhanna Lal to cause the death of the victim. The trouble was invited by the deceased victim and the members of his family when they visited the field in dispute. In these circumstances, only knowledge can be attributed to the appellant Dhanna Lal that be did an act which is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. In that event, the offence will again fall Under Section 304 IPC.</p><p style="text-align: justify;">15. In the result,</p><p style="text-align: justify;">(1) The appeal of accused Babu Lal is allowed. His conviction Under Section 302 IPC and the sentence awarded to him are set aside. He is acquitted of the said offence. He is in jail and shall be forthwith set at liberty if not wanted in any other case, and</p><p style="text-align: justify;">(2) The appeal of accused Babu Lal is partly allowed. His conviction and sentence Under Section 302. IPC ate set aside and in lieu thereof he is convicted Under Section 304 IPC arid re sentenced to five year's rigorous imprisoment with a fine of Rs. 1,000/-. in default of the payment of fine to further undergo six month's like imprisonment.</p><p style="text-align: justify;">16. 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Sharma', (int) 62 => 'Gupta', (int) 63 => 'Umrao Khan', (int) 64 => 'Dhanna Lal', (int) 65 => 'Babu Lal', (int) 66 => 'Umrao Khan', (int) 67 => 'Gupta', (int) 68 => 'Dhanna Lal', (int) 69 => 'Babu Lai', (int) 70 => 'Gupta', (int) 71 => 'Mathura Lal', (int) 72 => 'Mathura Lal', (int) 73 => 'Dhanna Lal', (int) 74 => 'Dhanna Lal.8', (int) 75 => 'Babu Lai', (int) 76 => 'Umarao Khan', (int) 77 => 'Babu Lal', (int) 78 => 'Babu Lal', (int) 79 => 'Dhanna Lal', (int) 80 => 'Ismail Khan', (int) 81 => 'Umrao Khan', (int) 82 => 'Umrao Khan', (int) 83 => 'Dhanna Lal', (int) 84 => 'Dhanna Lal', (int) 85 => 'Dhanna Lal', (int) 86 => 'Babu Lal', (int) 87 => 'Babu Lal', (int) 88 => 'imprisonment.16' ), 'NORP' => array( (int) 0 => 'J.1', (int) 1 => 'Khatedar' ), 'ORG' => array( (int) 0 => 'IPC', (int) 1 => 'Kollu Khedi PS Jhawar', (int) 2 => 'Khatedari', (int) 3 => 'Smt', (int) 4 => 'Maugilal Bhanwarlal', (int) 5 => 'Biswas', (int) 6 => 'the Government Hospital', (int) 7 => 'the General Hospital', (int) 8 => 'Medical Jurist Dr. Vijay', (int) 9 => 'PW 4', (int) 10 => 'Medical Officer Incharge, Government Dispensary', (int) 11 => 'Rajasthan State Forensic Science Laboratory', (int) 12 => 'the Judicial Magistrate', (int) 13 => 'Public Prosecutor', (int) 14 => 'the complainat party', (int) 15 => 'Public Prosecutor', (int) 16 => 'Infliction', (int) 17 => 'Public Prosecutor', (int) 18 => 'IPC', (int) 19 => 'IPC', (int) 20 => 'IPC', (int) 21 => 'IPC', (int) 22 => 'Section 104 IPC', (int) 23 => 'IPC', (int) 24 => 'Section 104 IPC', (int) 25 => 'S. 103 IPC', (int) 26 => 'S. 104', (int) 27 => 'Public Prosecutor', (int) 28 => 'Public Prosecutor', (int) 29 => 'S. 34', (int) 30 => 'IPC', (int) 31 => 'State of Bihar v. Nathu and Ors', (int) 32 => 'Public Prosecutor', (int) 33 => 'Public Prosecutor', (int) 34 => 'Public Prosecutor', (int) 35 => 'IPC', (int) 36 => 'IPC' ), 'CARDINAL' => array( (int) 0 => '1,000/-', (int) 1 => 'two or three', (int) 2 => '6', (int) 3 => 'about 3.00', (int) 4 => '4.00', (int) 5 => '13', (int) 6 => 'two', (int) 7 => '13', (int) 8 => 'one', (int) 9 => 'three', (int) 10 => '307', (int) 11 => '148', (int) 12 => '26', (int) 13 => '26', (int) 14 => '1', (int) 15 => '30', (int) 16 => '11', (int) 17 => 'two', (int) 18 => '302', (int) 19 => '148', (int) 20 => '324', (int) 21 => '324/149', (int) 22 => '16', (int) 23 => 'six', (int) 24 => 'three', (int) 25 => 'only two', (int) 26 => '26', (int) 27 => '19', (int) 28 => 'One', (int) 29 => 'Only one', (int) 30 => 'only one', (int) 31 => '2', (int) 32 => '26', (int) 33 => 'only one', (int) 34 => '1,000/-' ), 'DATE' => array( (int) 0 => 'six months'', (int) 1 => 'November 23, 1987', (int) 2 => '1985', (int) 3 => 'the same day', (int) 4 => '19-7-1985', (int) 5 => 'PW 5', (int) 6 => 'PW 1', (int) 7 => '1985', (int) 8 => '1985', (int) 9 => 'PW 16', (int) 10 => '19-7-1985', (int) 11 => '19-7-1985', (int) 12 => '302/149', (int) 13 => 'the day', (int) 14 => '19-7-1985', (int) 15 => '7 or 8 days', (int) 16 => '1970CriLJ5', (int) 17 => '7 or 8 days', (int) 18 => '19-7-1985', (int) 19 => '7 days', (int) 20 => '7 days', (int) 21 => 'five year's', (int) 22 => 'six month's' ), 'GPE' => array( (int) 0 => 'District Jhalawar', (int) 1 => 'Harak Chand', (int) 2 => 'Jhalawar', (int) 3 => 'Jhawar', (int) 4 => 'Jaipur', (int) 5 => 'Harak Chand', (int) 6 => 'Harak Chand', (int) 7 => 'PW' ), 'EVENT' => array( (int) 0 => 'PW 1 Ismail Khan' ), 'PRODUCT' => array( (int) 0 => 'Swords', (int) 1 => 'P-31' ), 'ORDINAL' => array( (int) 0 => 'first', (int) 1 => 'first', (int) 2 => 'first' ) ), 'desc' => array( 'Judgement' => array( 'id' => '759974', 'acts' => '', 'appealno' => 'D.B. Criminal Appeal No. 485 of 1987', 'appellant' => 'Dhanna Lai and anr.', 'authreffered' => '', 'casename' => 'Dhanna Lai and anr. Vs. State of Rajasthan', 'casenote' => 'Penal Coda - Trespass--Dispute over possession--Appellants sowing field--Complainant party entered field--Held, visit was not innocent.;The dispute over possession had commenced since long and the appellants never yielded to surrender the possession. The proper course for the purchaser was, therefore, to pursue legal remedies for recovery of possession. Instead of pursuing the legal remedy, the members of the complainant party assembled together and collected some more persons and thereafter went in a move to the field in dispute where the appellants were sowing the seeds. In these circumstances; it can be easily inferred that the visit of the members of the complainant party was not innocent.;(b) Penal Code - Section 302 and 304--Death after 7 days in hospital--Single blow resulted in death-Blows not repeated--No intention to cause death--Knowledge can be attributed to accused-Held, offence falls Under Section 304.;The incident is alleged to have taken place on 19-7-1985. Umrao Khan died in the hospital nearly after 7 days on 26-7-1985. Accused Dhanna Lal inflicted only one blow. There was no repetition of blows on his part. The single blow unfortunately resulted in death of the victim. Looking to the long lapse of 7 days in between the infliction of the injuries and the death resulting from it, it cannot be precisely said that the injury sustained by the deceased victim was sufficient in the ordinary course of nature to cause death. There was no intention on the part of accused Dhanna Lal to cause the death of the victim. The trouble was invited by the deceased victim and the members of his family when they visited the field in dispute. In these circumstance, only knowledge can be attributed to the appellant Dhanna Lal that he did an act which is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. In that event, the offence will again fall Under Section 304. IPC.;Appeal Partly Allowed. - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ] Determination as to Juvenile - Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force - Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007 - As such, Accused has to be treated as Juvenile under the said Act. - The trial court convicted the three accused Harak Chand, Nathu Lal and Ratan Lal Under Section 324 IPC and let them off on the Probation of good conduct. Looking to the long lapse of 7 days in between the infliction of the injuries and the death resulting from it, it cannot be precisely said that the injury sustained by the deceased victim was sufficient in the ordinary course of nature to cause death. 1,000/-.in default of the payment of fine to further undergo six month's like imprisonment.', 'caseanalysis' => null, 'casesref' => 'State of Bihar v. Nathu and Ors.;', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Rajasthan', 'court_type' => 'HC', 'decidedon' => '1989-02-07', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' D.L. Mehta and; S.S. Byas, JJ.', 'judgement' => '<p style="text-align: justify;">S.S. Byas, J.</p><p style="text-align: justify;">1. Accused Dhanna Lal and Babu Lal have been convicted Under Section 302, IPC and each has been sentenced to imprisonment for life with a fine of Rs. 1,000/-, in default of the payment of fine to further under go six months' simple imprisonment by the learned Sessions Judge, Jhalawar by his judgment dated November 23, 1987. The accused have come up in appeal and challenge their conviction.</p><p style="text-align: justify;">2. Stated in short, the prosecution case is that DW 1 Smt. Bhanwari Bai was a Khatedar tenant of some fields situate in village Kollu Khedi PS Jhawar, District Jhalawar. She sold her Khatedari in some of these fields to PW 1 Ismail Khan and his deceased brother Umrao Khan along with two or three persons on 6-7-1985 by executing the registered sale-deed Ex.P 28 in their favour. Possession of the fields were handed over to them by Smt. Bhanwari Bai on the same day. At about 3.00 or 4.00 p.m on 19-7-1985 PW 1 Ismail went to these fields and found the appellants Dhanna Lal and Babu Lai ploughing a portion of 13 Biswas. Many other persons viz. Harak Chand, Nathu Lal, Ratan Lal, Maugilal Bhanwarlal, another Ratanlal Nannu Lal. Gangaram and Mathura Ram were also there. They all had deadly arms with them. The two appellants had Swords. Seeing them there, Ismail Khan went to the village and collected some persons. He told them that the accused party was illegally sowing the seeds in the portion of 13 Biswas. These persons along with Sarpanch Ismail PW 5 came to the place where the appellants were sowing the seeds. The Sarpanch told the appellants and their companions that the fields had purchased by Ismail Khan PW 1. This annoyed and irked the appellants. Appellant Babu Lal shouted that none should be spared. Thereupon appellant Dhanna Lal struck a blow of his sword on the head of Umrao Khan Accused Babu Lal also struck one blow with his sword on the mouth of Umrao Khan. Umrao Khan fell down. There was profuse bleeding from his wounds and the clothes he was wearing got smeared, with it. Ismail Khan (PW 1), Mosam Khan and Isan Khan tried to save Umrao Khan. The appellants and their companions did not spare even these three persons and belaboured them. Thereafter the appellants and their companions named above retreated and went towards the village. Umrao Khan became unconscious on the spot He was taken in a bullock cart to Police Station Jhawar where PW 1 Ismail Khan lodged verbal report Ex.P 1 of the incident. The Police registered a case Under Sections 307, 148 etc. of the Penal Code and proceeded with investigation. The condition of Umrao Khan was rapidly deteriorating and he was taken to the Government Hospital, Jhalawar for treatment. His condition did not improve and he was taken to the General Hospital, Kota where he was admitted for treatment. Despite medical help Umrao Khan did not survive and breathe his last on 26-7-1985. The Police added Section 302 IPC during investigation. The Investigating Officer visited the site and prepared the site plan. The inquest report of the victim's dead body was prepared. The post mortem examination over the victim's dead body was conducted on 26-7-1985 by Medical Jurist Dr. Vijay (PW 16). The Doctor noticed the following ante-mortem injuries on the victim's dead body:</p><p style="text-align: justify;">External: 1. Wound 6' long vertically oblique on right fronto parietal temporal region of scalp.</p><p style="text-align: justify;">2. Wound 2-1/2' long oblique just below lower lip.</p><p style="text-align: justify;">Internal: Fracture of right fronto temporal parietal bone of scull.</p><p style="text-align: justify;">3. In the opinion of Dr. Vijay, the cause of death was due to come as a result of head injury. The post mortem examination report issued by him is Ex. P 30. The injuries Ismail Khan, Isan Khan and Mosam Khan were examined on 19-7-1985 by PW 4 Dr. Jogendra Pal Singh, the then Medical Officer Incharge, Government Dispensary, Jhawar. Simple injuries were found on their persons. The injury reports are Ex.P-5, Ex, P-6. Doctor Jogendra Pal Singh also recorded the statement Ex. P-8 of Umrao Khan on 19-7-1985 when he was taken to him. The appellants and their associates, were rounded up. The blood stained clothes etc. were sent for chemical examination to Rajasthan State Forensic Science Laboratory, Jaipur. The report received from there is Ex. P-31 Human blood was found on them. On the completion of the investigation, the Police presented a crime report against as maay as 11 accused person viz. Harak Chand, Nathu Lal, Ratan Lal, Mangi Lal Bhanwar Lal, another Ratan Lal, Nannu Lal Ganga Ram, Mathura Lal and the two appellants Dhanna Lal and Babu Lal in the court of the Judicial Magistrate, who in his turn committed the case for trial to the court of Sessions. The learned Sessions Judge framed charged Under Sections 302, 302/149, 148, 324 and 324/149 IPC against all of them, to which they pleaded not guilty and faced the trial. The defence taken was that the field in depute Where the incident allege to have taken party came their possession and cultivation since long. The members of the complaint party come there on the day of incident to unlawfully and forcibly dispossess them. They denied that they used violence against any member of the complainant party. In support of its case, the prosecution examined 16 witnesses and filed some documents. In defence, the accused examined one witness Bhanwari Bai (DW 1). On the conclusion of trial, the learned Sessions Judge held that the field in which the, incident took place was in possession and cultivation, of the appellants. But there was no occassion to exercise the right of private defence of property. The learned Sessions Judge further held that there was no incriminating material against the six accused persons Mangi Lal Bhanwar Lal, Ratan Lal, Nannu Lal, Ganga Ram and Mathura Lal. They were accordingly acquitted of the offence they were charged with. The trial court convicted the three accused Harak Chand, Nathu Lal and Ratan Lal Under Section 324 IPC and let them off on the Probation of good conduct. They were also acquitted of the offence Under Section 302 or 302/149 IPC. The Sessions Judge held the charge Under Section 302 IPC duly brought home to the appellants Dhanna Lai and Babu Lal. They were consequently convicted and sentenced as mentioned at the very outset. Aggrieved against their conviction, Dhanna Lal and Babu Lal have taken this joint appeal</p><p style="text-align: justify;">4. We have heard Mr. A.K. Gupta-learned Counsel for the appellants and the learned Public Prosecutor, Mr. O.P. Sharma. We have also gone through the case filed carefully.</p><p style="text-align: justify;">5. In impeaching the conviction, Mr. Gupta contended that the field in which the incident is alleged to have taken places was in possession of the appellants as per finding of the court below. The deceased Umrao Khan was struck only two blows, ons on the head and the other on the lip. The injury on the lip was neither fatal nor dangerous. It was a simple injury. The author of the head injury which resulted in death is accused Dhanna Lal. The injury on the lip was caused by appellant Babu Lal. The members of the complainat party, including the deceased had come to the place of incident for unlawfully and forcibly dispossessing the appellants. The appellants had, therefore, a right of private defence of property. The right of private defence was undisputedly available to the appellants. But it was wrongly denied to them by the court below. It was also argued that the incident took place on 19-7-1985 and Umrao Khan died on 26-7-1985. There was no intention to cause his death. The long interval of 7 or 8 days in the infliction of injury and the death indicates that the head injury of the victim was not sufficient in the ordinary course of nature to cause death. The offence, therefore, even if the right of private defence is denied to the appellants does not travel beyond Section 304 IPC. In reply, the learned Public Prosecutor strived hard and made all efforts to support the conviction to the appellants.</p><p style="text-align: justify;">6. Since Mr. Gupta did not challenge the finding of the court below that accused Dhanna Lal strcuk the below with the sword on the head of the deceased victim and there by caused his death and the other appellant Babu Lai struck a blow on the lip of the deceased victim. We need not touch the evidence of the eye witnessess on the question of the infliction of blows. We will examine the contentions of Mr. Gupta accepting the finding of the court below on the question of the Infliction to the deceased victim by the appellants.</p><p style="text-align: justify;">7. The site plan of the place of incident is Ex. P-26. The incident is alleged to have taken place at the place shown by mark 'A' in Ex. P-26. This field shown by mark 'A' has been described to be in possession of the acquitted accused Mathura Lal. The acquittal accused Mathura Lal is the father of the appellant Dhanna Lal. Thus the incident had taken place in the field of the appellant Dhanna Lal.</p><p style="text-align: justify;">8. On page 19 of the judgment, the Sessions Judge has discussed the question of possession at length and recorded the finding that this field shown by mark 'A' in Ex. P-26 was in possession of the appellants. This finding on the question has not been and perhaps could not be challenged by the learned Public Prosecutor. The appellants were thus in possession of the field in dispute where the incident had taken place.</p><p style="text-align: justify;">9. The pertinent question which arises for our consideration is whether the appellants had a right of the private defence of property. Section 96 IPC speaks that nothing is an offence which is done in the exercise of the private defence. Section 97 IPC further carries this right and lays down that every citizen has a right to defend his property against criminal trespass or an attempt to commit criminal trespass. Section 99 IPC lays down the restrictions and defines the parameters within which the right of private defence is to be exercised. One of these restrictions is that the right of private defence should not extend to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 103 IPC speaks as to when the right of private defence of property extends to causing death. Section 104 IPC lays down the parameters where such a right extends to causing any harm other than death. Section 103 IPC permits the causing of death where the offence to be or likely to be committed is one of those mentioned in clauses first to fourthly. Section 104 IPC permits the causing of any harm other than death where the offence to be or likely to be committed against the property is of criminal trespass. The offence of criminal trespass has not been included in clause first to fourthly of S. 103 IPC. The offence of criminal trespass finds place in S. 104 of the Penal Code Therefore the appellants could not exercise the right of private defence of property to the extent of causing death. Of course, they were entitled to defend their possession. In defending their possession, they could cause any harm short of death.</p><p style="text-align: justify;">10. Accused Babu Lai according to all the eye witnesses of the incident inflicted injuries of sword on the lip of the deceased victim Umarao Khan. This injury as per medical evidence was simple. Accused Babu Lal had the right of defend possession. Causing of a simple injury by him in defending his possession cannot be taken to mean that he caused more harm than necessary. Only one blow was inflicted by him. There is no repetition of blows on his part. He has been convicted Under Section 302 IPC. His conviction is thus wholly wrong and unsustainable.</p><p style="text-align: justify;">11. The learned Public Prosecutor contended that accused Babu Lal be convicted Under Section 302 with the aid of Section 34 IPC. We are unable to subscribe the view propounded before us by the learned Public Prosecutor. If the accused assembled to protect their possession over the property, it cannot be said that they had assembled to commit any offence defending the possession over property is not an offence as such S. 34 IPC can have no applicability. We are fortified in our view by the observations made in State of Bihar v. Nathu and Ors. : 1970CriLJ5 . The contention of the learned Public Prosecutor thus fails.</p><p style="text-align: justify;">12. Coming to the case against the appellant Dhanna Lal, he is the author of the head injury which resulted in the victim's death. He caused only one injury to the deceased victim which unfortunately caused his death after 7 or 8 days. As dicussed above, the law did not permit him to cause death in an attempt to defend his possession over the field in dispute. In causing the death, he has exceeded the right of private defence. His case, therefore, falls within the exception of 2 of Section 300 IPC. He should have been, therefore, convicted under the first part of Section 304 IPC his conviction Under Section 302 IPC is not justified.</p><p style="text-align: justify;">13. It was contended by the learned Public Prosecutor that every trespass is not covered by Section 304 IPC. Here is a case where the members of the complainant party along with other persons went to the place where the appellants were ploughing the field to prevail over them to leave the possession as the filed had been purchased by PW. 1 Ismail Khan and the deceased Umrao Khan. The appellants, therefore, had no occassion to use force or violence. We do not feel persuaded by the submission of the learned Public Prosecutor. The dispute ovet possession had commenced since long and the appellants never yielded to surrender the possession. The proper course for the purchaser was, therefore, to pursue legal remedies for recovery of possession. Instead of oursuing the legal remedy, the members of the complainant party assembled together and collected some more persons and thereafter went in a more to the field in dispute where the appellants were sowing the seeds, In these circumstances, it can be easily inferred that the visit of the members of the complainant party was not innocent. It is not a case of simple civil trespass. We are, therefore, unable to accept the contention of the learned Public Prosecutor.</p><p style="text-align: justify;">14. There is yet another aspect of the matter. The incident is alleged to have taken place on 19-7-1985. Umrao Khan died in the hospital nearly after 7 days on 26-7-1985. Accused Dhanna Lal inflicted only one blow. There was no repetition of blows on his part. The single blow unfortunately resulted in death of the victim. Looking to the long lapse of 7 days in between the infliction of the injuries and the death resulting from it, it cannot be precisely said that the injury sustained by the deceased victim was sufficient in the ordinary course of nature to cause death. There was no intention on the part of accused Dhanna Lal to cause the death of the victim. The trouble was invited by the deceased victim and the members of his family when they visited the field in dispute. In these circumstances, only knowledge can be attributed to the appellant Dhanna Lal that be did an act which is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. In that event, the offence will again fall Under Section 304 IPC.</p><p style="text-align: justify;">15. In the result,</p><p style="text-align: justify;">(1) The appeal of accused Babu Lal is allowed. His conviction Under Section 302 IPC and the sentence awarded to him are set aside. He is acquitted of the said offence. He is in jail and shall be forthwith set at liberty if not wanted in any other case, and</p><p style="text-align: justify;">(2) The appeal of accused Babu Lal is partly allowed. His conviction and sentence Under Section 302. IPC ate set aside and in lieu thereof he is convicted Under Section 304 IPC arid re sentenced to five year's rigorous imprisoment with a fine of Rs. 1,000/-. in default of the payment of fine to further undergo six month's like imprisonment.</p><p style="text-align: justify;">16. The apeal is accordingly disposed of,<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '1990(1)WLN489', 'ratiodecidendi' => '', 'respondent' => 'State of Rajasthan', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ), 'args' => array( (int) 0 => '759974' ) ) $title_for_layout = 'Dhanna Lai and anr. Vs. State of Rajasthan Semantic Analysis' $shops = array( 'LAW' => array( (int) 0 => 'the Penal Code', (int) 1 => 'Section 304 IPC', (int) 2 => 'Section 96', (int) 3 => 'Section 97', (int) 4 => 'Section 99', (int) 5 => 'Section 103', (int) 6 => 'Section 34 IPC', (int) 7 => 'Section 304', (int) 8 => 'Section 302 IPC', (int) 9 => 'Section 304 IPC', (int) 10 => 'Section 302 IPC', (int) 11 => 'Section 302', (int) 12 => 'Section 304' ), 'PERSON' => array( (int) 0 => 'S.S. Byas', (int) 1 => 'Dhanna Lal', (int) 2 => 'Babu Lal', (int) 3 => 'Jhalawar', (int) 4 => 'Bhanwari Bai', (int) 5 => 'Umrao Khan', (int) 6 => 'Bhanwari Bai', (int) 7 => 'Dhanna Lal', (int) 8 => 'Babu Lai', (int) 9 => 'Nathu Lal', (int) 10 => 'Ratan Lal', (int) 11 => 'Mathura Ram', (int) 12 => 'Ismail Khan', (int) 13 => 'Sarpanch Ismail', (int) 14 => 'Sarpanch', (int) 15 => 'Ismail Khan PW 1', (int) 16 => 'Babu Lal', (int) 17 => 'Dhanna Lal', (int) 18 => 'Umrao Khan', (int) 19 => 'Babu Lal', (int) 20 => 'Umrao Khan', (int) 21 => 'Umrao Khan', (int) 22 => 'Ismail Khan', (int) 23 => 'Mosam Khan', (int) 24 => 'Isan Khan', (int) 25 => 'Umrao Khan', (int) 26 => 'Umrao Khan', (int) 27 => 'Ismail Khan', (int) 28 => 'Umrao Khan', (int) 29 => 'Kota', (int) 30 => 'Umrao Khan', (int) 31 => 'Wound 2-1/2'', (int) 32 => 'Vijay', (int) 33 => 'Ismail Khan', (int) 34 => 'Isan Khan', (int) 35 => 'Mosam Khan', (int) 36 => 'Jogendra Pal Singh', (int) 37 => 'P-5', (int) 38 => 'Jogendra Pal Singh', (int) 39 => 'Umrao Khan', (int) 40 => 'Nathu Lal', (int) 41 => 'Ratan Lal', (int) 42 => 'Mangi Lal Bhanwar Lal', (int) 43 => 'Lal', (int) 44 => 'Lal Ganga Ram', (int) 45 => 'Mathura Lal', (int) 46 => 'Dhanna Lal', (int) 47 => 'Babu Lal', (int) 48 => 'Bhanwari Bai', (int) 49 => 'Mangi Lal Bhanwar Lal', (int) 50 => 'Ratan Lal', (int) 51 => 'Nannu Lal', (int) 52 => 'Ganga Ram', (int) 53 => 'Mathura Lal', (int) 54 => 'Nathu Lal', (int) 55 => 'Ratan Lal', (int) 56 => 'Dhanna Lai', (int) 57 => 'Babu Lal', (int) 58 => 'Dhanna Lal', (int) 59 => 'Babu Lal', (int) 60 => 'A.K. Gupta', (int) 61 => 'O.P. Sharma', (int) 62 => 'Gupta', (int) 63 => 'Umrao Khan', (int) 64 => 'Dhanna Lal', (int) 65 => 'Babu Lal', (int) 66 => 'Umrao Khan', (int) 67 => 'Gupta', (int) 68 => 'Dhanna Lal', (int) 69 => 'Babu Lai', (int) 70 => 'Gupta', (int) 71 => 'Mathura Lal', (int) 72 => 'Mathura Lal', (int) 73 => 'Dhanna Lal', (int) 74 => 'Dhanna Lal.8', (int) 75 => 'Babu Lai', (int) 76 => 'Umarao Khan', (int) 77 => 'Babu Lal', (int) 78 => 'Babu Lal', (int) 79 => 'Dhanna Lal', (int) 80 => 'Ismail Khan', (int) 81 => 'Umrao Khan', (int) 82 => 'Umrao Khan', (int) 83 => 'Dhanna Lal', (int) 84 => 'Dhanna Lal', (int) 85 => 'Dhanna Lal', (int) 86 => 'Babu Lal', (int) 87 => 'Babu Lal', (int) 88 => 'imprisonment.16' ), 'NORP' => array( (int) 0 => 'J.1', (int) 1 => 'Khatedar' ), 'ORG' => array( (int) 0 => 'IPC', (int) 1 => 'Kollu Khedi PS Jhawar', (int) 2 => 'Khatedari', (int) 3 => 'Smt', (int) 4 => 'Maugilal Bhanwarlal', (int) 5 => 'Biswas', (int) 6 => 'the Government Hospital', (int) 7 => 'the General Hospital', (int) 8 => 'Medical Jurist Dr. Vijay', (int) 9 => 'PW 4', (int) 10 => 'Medical Officer Incharge, Government Dispensary', (int) 11 => 'Rajasthan State Forensic Science Laboratory', (int) 12 => 'the Judicial Magistrate', (int) 13 => 'Public Prosecutor', (int) 14 => 'the complainat party', (int) 15 => 'Public Prosecutor', (int) 16 => 'Infliction', (int) 17 => 'Public Prosecutor', (int) 18 => 'IPC', (int) 19 => 'IPC', (int) 20 => 'IPC', (int) 21 => 'IPC', (int) 22 => 'Section 104 IPC', (int) 23 => 'IPC', (int) 24 => 'Section 104 IPC', (int) 25 => 'S. 103 IPC', (int) 26 => 'S. 104', (int) 27 => 'Public Prosecutor', (int) 28 => 'Public Prosecutor', (int) 29 => 'S. 34', (int) 30 => 'IPC', (int) 31 => 'State of Bihar v. Nathu and Ors', (int) 32 => 'Public Prosecutor', (int) 33 => 'Public Prosecutor', (int) 34 => 'Public Prosecutor', (int) 35 => 'IPC', (int) 36 => 'IPC' ), 'CARDINAL' => array( (int) 0 => '1,000/-', (int) 1 => 'two or three', (int) 2 => '6', (int) 3 => 'about 3.00', (int) 4 => '4.00', (int) 5 => '13', (int) 6 => 'two', (int) 7 => '13', (int) 8 => 'one', (int) 9 => 'three', (int) 10 => '307', (int) 11 => '148', (int) 12 => '26', (int) 13 => '26', (int) 14 => '1', (int) 15 => '30', (int) 16 => '11', (int) 17 => 'two', (int) 18 => '302', (int) 19 => '148', (int) 20 => '324', (int) 21 => '324/149', (int) 22 => '16', (int) 23 => 'six', (int) 24 => 'three', (int) 25 => 'only two', (int) 26 => '26', (int) 27 => '19', (int) 28 => 'One', (int) 29 => 'Only one', (int) 30 => 'only one', (int) 31 => '2', (int) 32 => '26', (int) 33 => 'only one', (int) 34 => '1,000/-' ), 'DATE' => array( (int) 0 => 'six months'', (int) 1 => 'November 23, 1987', (int) 2 => '1985', (int) 3 => 'the same day', (int) 4 => '19-7-1985', (int) 5 => 'PW 5', (int) 6 => 'PW 1', (int) 7 => '1985', (int) 8 => '1985', (int) 9 => 'PW 16', (int) 10 => '19-7-1985', (int) 11 => '19-7-1985', (int) 12 => '302/149', (int) 13 => 'the day', (int) 14 => '19-7-1985', (int) 15 => '7 or 8 days', (int) 16 => '1970CriLJ5', (int) 17 => '7 or 8 days', (int) 18 => '19-7-1985', (int) 19 => '7 days', (int) 20 => '7 days', (int) 21 => 'five year's', (int) 22 => 'six month's' ), 'GPE' => array( (int) 0 => 'District Jhalawar', (int) 1 => 'Harak Chand', (int) 2 => 'Jhalawar', (int) 3 => 'Jhawar', (int) 4 => 'Jaipur', (int) 5 => 'Harak Chand', (int) 6 => 'Harak Chand', (int) 7 => 'PW' ), 'EVENT' => array( (int) 0 => 'PW 1 Ismail Khan' ), 'PRODUCT' => array( (int) 0 => 'Swords', (int) 1 => 'P-31' ), 'ORDINAL' => array( (int) 0 => 'first', (int) 1 => 'first', (int) 2 => 'first' ) ) $desc = array( 'Judgement' => array( 'id' => '759974', 'acts' => '', 'appealno' => 'D.B. Criminal Appeal No. 485 of 1987', 'appellant' => 'Dhanna Lai and anr.', 'authreffered' => '', 'casename' => 'Dhanna Lai and anr. Vs. State of Rajasthan', 'casenote' => 'Penal Coda - Trespass--Dispute over possession--Appellants sowing field--Complainant party entered field--Held, visit was not innocent.;The dispute over possession had commenced since long and the appellants never yielded to surrender the possession. The proper course for the purchaser was, therefore, to pursue legal remedies for recovery of possession. Instead of pursuing the legal remedy, the members of the complainant party assembled together and collected some more persons and thereafter went in a move to the field in dispute where the appellants were sowing the seeds. In these circumstances; it can be easily inferred that the visit of the members of the complainant party was not innocent.;(b) Penal Code - Section 302 and 304--Death after 7 days in hospital--Single blow resulted in death-Blows not repeated--No intention to cause death--Knowledge can be attributed to accused-Held, offence falls Under Section 304.;The incident is alleged to have taken place on 19-7-1985. Umrao Khan died in the hospital nearly after 7 days on 26-7-1985. Accused Dhanna Lal inflicted only one blow. There was no repetition of blows on his part. The single blow unfortunately resulted in death of the victim. Looking to the long lapse of 7 days in between the infliction of the injuries and the death resulting from it, it cannot be precisely said that the injury sustained by the deceased victim was sufficient in the ordinary course of nature to cause death. There was no intention on the part of accused Dhanna Lal to cause the death of the victim. The trouble was invited by the deceased victim and the members of his family when they visited the field in dispute. In these circumstance, only knowledge can be attributed to the appellant Dhanna Lal that he did an act which is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. In that event, the offence will again fall Under Section 304. IPC.;Appeal Partly Allowed. - Section 2(k), 2(1), 7 & 40 & Juvenile Justice (Care and Protection of Children) Rules, 2007, Rule 12 & 98 & Juvenile Justice Act, 1986, Section 2(h): [Altamas Kabir & Cyriac Joseph, JJ] Determination as to Juvenile - Appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - Appellant was arrested on 30.11.1998 when the 1986 Act was in force and under Clause (h) of Section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - It is with the enactment of the Juvenile Justice Act, 2000, that in Section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - Appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the Juvenile Justice Act, 2000, came into force - Juvenile Act, of 2000 has been given retrospective effect by Rule 12 of Juvenile Justice Rule, 2007 - As such, Accused has to be treated as Juvenile under the said Act. - The trial court convicted the three accused Harak Chand, Nathu Lal and Ratan Lal Under Section 324 IPC and let them off on the Probation of good conduct. Looking to the long lapse of 7 days in between the infliction of the injuries and the death resulting from it, it cannot be precisely said that the injury sustained by the deceased victim was sufficient in the ordinary course of nature to cause death. 1,000/-.in default of the payment of fine to further undergo six month's like imprisonment.', 'caseanalysis' => null, 'casesref' => 'State of Bihar v. Nathu and Ors.;', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Rajasthan', 'court_type' => 'HC', 'decidedon' => '1989-02-07', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => ' D.L. Mehta and; S.S. Byas, JJ.', 'judgement' => '<p style="text-align: justify;">S.S. Byas, J.</p><p style="text-align: justify;">1. Accused Dhanna Lal and Babu Lal have been convicted Under Section 302, IPC and each has been sentenced to imprisonment for life with a fine of Rs. 1,000/-, in default of the payment of fine to further under go six months' simple imprisonment by the learned Sessions Judge, Jhalawar by his judgment dated November 23, 1987. The accused have come up in appeal and challenge their conviction.</p><p style="text-align: justify;">2. Stated in short, the prosecution case is that DW 1 Smt. Bhanwari Bai was a Khatedar tenant of some fields situate in village Kollu Khedi PS Jhawar, District Jhalawar. She sold her Khatedari in some of these fields to PW 1 Ismail Khan and his deceased brother Umrao Khan along with two or three persons on 6-7-1985 by executing the registered sale-deed Ex.P 28 in their favour. Possession of the fields were handed over to them by Smt. Bhanwari Bai on the same day. At about 3.00 or 4.00 p.m on 19-7-1985 PW 1 Ismail went to these fields and found the appellants Dhanna Lal and Babu Lai ploughing a portion of 13 Biswas. Many other persons viz. Harak Chand, Nathu Lal, Ratan Lal, Maugilal Bhanwarlal, another Ratanlal Nannu Lal. Gangaram and Mathura Ram were also there. They all had deadly arms with them. The two appellants had Swords. Seeing them there, Ismail Khan went to the village and collected some persons. He told them that the accused party was illegally sowing the seeds in the portion of 13 Biswas. These persons along with Sarpanch Ismail PW 5 came to the place where the appellants were sowing the seeds. The Sarpanch told the appellants and their companions that the fields had purchased by Ismail Khan PW 1. This annoyed and irked the appellants. Appellant Babu Lal shouted that none should be spared. Thereupon appellant Dhanna Lal struck a blow of his sword on the head of Umrao Khan Accused Babu Lal also struck one blow with his sword on the mouth of Umrao Khan. Umrao Khan fell down. There was profuse bleeding from his wounds and the clothes he was wearing got smeared, with it. Ismail Khan (PW 1), Mosam Khan and Isan Khan tried to save Umrao Khan. The appellants and their companions did not spare even these three persons and belaboured them. Thereafter the appellants and their companions named above retreated and went towards the village. Umrao Khan became unconscious on the spot He was taken in a bullock cart to Police Station Jhawar where PW 1 Ismail Khan lodged verbal report Ex.P 1 of the incident. The Police registered a case Under Sections 307, 148 etc. of the Penal Code and proceeded with investigation. The condition of Umrao Khan was rapidly deteriorating and he was taken to the Government Hospital, Jhalawar for treatment. His condition did not improve and he was taken to the General Hospital, Kota where he was admitted for treatment. Despite medical help Umrao Khan did not survive and breathe his last on 26-7-1985. The Police added Section 302 IPC during investigation. The Investigating Officer visited the site and prepared the site plan. The inquest report of the victim's dead body was prepared. The post mortem examination over the victim's dead body was conducted on 26-7-1985 by Medical Jurist Dr. Vijay (PW 16). The Doctor noticed the following ante-mortem injuries on the victim's dead body:</p><p style="text-align: justify;">External: 1. Wound 6' long vertically oblique on right fronto parietal temporal region of scalp.</p><p style="text-align: justify;">2. Wound 2-1/2' long oblique just below lower lip.</p><p style="text-align: justify;">Internal: Fracture of right fronto temporal parietal bone of scull.</p><p style="text-align: justify;">3. In the opinion of Dr. Vijay, the cause of death was due to come as a result of head injury. The post mortem examination report issued by him is Ex. P 30. The injuries Ismail Khan, Isan Khan and Mosam Khan were examined on 19-7-1985 by PW 4 Dr. Jogendra Pal Singh, the then Medical Officer Incharge, Government Dispensary, Jhawar. Simple injuries were found on their persons. The injury reports are Ex.P-5, Ex, P-6. Doctor Jogendra Pal Singh also recorded the statement Ex. P-8 of Umrao Khan on 19-7-1985 when he was taken to him. The appellants and their associates, were rounded up. The blood stained clothes etc. were sent for chemical examination to Rajasthan State Forensic Science Laboratory, Jaipur. The report received from there is Ex. P-31 Human blood was found on them. On the completion of the investigation, the Police presented a crime report against as maay as 11 accused person viz. Harak Chand, Nathu Lal, Ratan Lal, Mangi Lal Bhanwar Lal, another Ratan Lal, Nannu Lal Ganga Ram, Mathura Lal and the two appellants Dhanna Lal and Babu Lal in the court of the Judicial Magistrate, who in his turn committed the case for trial to the court of Sessions. The learned Sessions Judge framed charged Under Sections 302, 302/149, 148, 324 and 324/149 IPC against all of them, to which they pleaded not guilty and faced the trial. The defence taken was that the field in depute Where the incident allege to have taken party came their possession and cultivation since long. The members of the complaint party come there on the day of incident to unlawfully and forcibly dispossess them. They denied that they used violence against any member of the complainant party. In support of its case, the prosecution examined 16 witnesses and filed some documents. In defence, the accused examined one witness Bhanwari Bai (DW 1). On the conclusion of trial, the learned Sessions Judge held that the field in which the, incident took place was in possession and cultivation, of the appellants. But there was no occassion to exercise the right of private defence of property. The learned Sessions Judge further held that there was no incriminating material against the six accused persons Mangi Lal Bhanwar Lal, Ratan Lal, Nannu Lal, Ganga Ram and Mathura Lal. They were accordingly acquitted of the offence they were charged with. The trial court convicted the three accused Harak Chand, Nathu Lal and Ratan Lal Under Section 324 IPC and let them off on the Probation of good conduct. They were also acquitted of the offence Under Section 302 or 302/149 IPC. The Sessions Judge held the charge Under Section 302 IPC duly brought home to the appellants Dhanna Lai and Babu Lal. They were consequently convicted and sentenced as mentioned at the very outset. Aggrieved against their conviction, Dhanna Lal and Babu Lal have taken this joint appeal</p><p style="text-align: justify;">4. We have heard Mr. A.K. Gupta-learned Counsel for the appellants and the learned Public Prosecutor, Mr. O.P. Sharma. We have also gone through the case filed carefully.</p><p style="text-align: justify;">5. In impeaching the conviction, Mr. Gupta contended that the field in which the incident is alleged to have taken places was in possession of the appellants as per finding of the court below. The deceased Umrao Khan was struck only two blows, ons on the head and the other on the lip. The injury on the lip was neither fatal nor dangerous. It was a simple injury. The author of the head injury which resulted in death is accused Dhanna Lal. The injury on the lip was caused by appellant Babu Lal. The members of the complainat party, including the deceased had come to the place of incident for unlawfully and forcibly dispossessing the appellants. The appellants had, therefore, a right of private defence of property. The right of private defence was undisputedly available to the appellants. But it was wrongly denied to them by the court below. It was also argued that the incident took place on 19-7-1985 and Umrao Khan died on 26-7-1985. There was no intention to cause his death. The long interval of 7 or 8 days in the infliction of injury and the death indicates that the head injury of the victim was not sufficient in the ordinary course of nature to cause death. The offence, therefore, even if the right of private defence is denied to the appellants does not travel beyond Section 304 IPC. In reply, the learned Public Prosecutor strived hard and made all efforts to support the conviction to the appellants.</p><p style="text-align: justify;">6. Since Mr. Gupta did not challenge the finding of the court below that accused Dhanna Lal strcuk the below with the sword on the head of the deceased victim and there by caused his death and the other appellant Babu Lai struck a blow on the lip of the deceased victim. We need not touch the evidence of the eye witnessess on the question of the infliction of blows. We will examine the contentions of Mr. Gupta accepting the finding of the court below on the question of the Infliction to the deceased victim by the appellants.</p><p style="text-align: justify;">7. The site plan of the place of incident is Ex. P-26. The incident is alleged to have taken place at the place shown by mark 'A' in Ex. P-26. This field shown by mark 'A' has been described to be in possession of the acquitted accused Mathura Lal. The acquittal accused Mathura Lal is the father of the appellant Dhanna Lal. Thus the incident had taken place in the field of the appellant Dhanna Lal.</p><p style="text-align: justify;">8. On page 19 of the judgment, the Sessions Judge has discussed the question of possession at length and recorded the finding that this field shown by mark 'A' in Ex. P-26 was in possession of the appellants. This finding on the question has not been and perhaps could not be challenged by the learned Public Prosecutor. The appellants were thus in possession of the field in dispute where the incident had taken place.</p><p style="text-align: justify;">9. The pertinent question which arises for our consideration is whether the appellants had a right of the private defence of property. Section 96 IPC speaks that nothing is an offence which is done in the exercise of the private defence. Section 97 IPC further carries this right and lays down that every citizen has a right to defend his property against criminal trespass or an attempt to commit criminal trespass. Section 99 IPC lays down the restrictions and defines the parameters within which the right of private defence is to be exercised. One of these restrictions is that the right of private defence should not extend to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 103 IPC speaks as to when the right of private defence of property extends to causing death. Section 104 IPC lays down the parameters where such a right extends to causing any harm other than death. Section 103 IPC permits the causing of death where the offence to be or likely to be committed is one of those mentioned in clauses first to fourthly. Section 104 IPC permits the causing of any harm other than death where the offence to be or likely to be committed against the property is of criminal trespass. The offence of criminal trespass has not been included in clause first to fourthly of S. 103 IPC. The offence of criminal trespass finds place in S. 104 of the Penal Code Therefore the appellants could not exercise the right of private defence of property to the extent of causing death. Of course, they were entitled to defend their possession. In defending their possession, they could cause any harm short of death.</p><p style="text-align: justify;">10. Accused Babu Lai according to all the eye witnesses of the incident inflicted injuries of sword on the lip of the deceased victim Umarao Khan. This injury as per medical evidence was simple. Accused Babu Lal had the right of defend possession. Causing of a simple injury by him in defending his possession cannot be taken to mean that he caused more harm than necessary. Only one blow was inflicted by him. There is no repetition of blows on his part. He has been convicted Under Section 302 IPC. His conviction is thus wholly wrong and unsustainable.</p><p style="text-align: justify;">11. The learned Public Prosecutor contended that accused Babu Lal be convicted Under Section 302 with the aid of Section 34 IPC. We are unable to subscribe the view propounded before us by the learned Public Prosecutor. If the accused assembled to protect their possession over the property, it cannot be said that they had assembled to commit any offence defending the possession over property is not an offence as such S. 34 IPC can have no applicability. We are fortified in our view by the observations made in State of Bihar v. Nathu and Ors. : 1970CriLJ5 . The contention of the learned Public Prosecutor thus fails.</p><p style="text-align: justify;">12. Coming to the case against the appellant Dhanna Lal, he is the author of the head injury which resulted in the victim's death. He caused only one injury to the deceased victim which unfortunately caused his death after 7 or 8 days. As dicussed above, the law did not permit him to cause death in an attempt to defend his possession over the field in dispute. In causing the death, he has exceeded the right of private defence. His case, therefore, falls within the exception of 2 of Section 300 IPC. He should have been, therefore, convicted under the first part of Section 304 IPC his conviction Under Section 302 IPC is not justified.</p><p style="text-align: justify;">13. It was contended by the learned Public Prosecutor that every trespass is not covered by Section 304 IPC. Here is a case where the members of the complainant party along with other persons went to the place where the appellants were ploughing the field to prevail over them to leave the possession as the filed had been purchased by PW. 1 Ismail Khan and the deceased Umrao Khan. The appellants, therefore, had no occassion to use force or violence. We do not feel persuaded by the submission of the learned Public Prosecutor. The dispute ovet possession had commenced since long and the appellants never yielded to surrender the possession. The proper course for the purchaser was, therefore, to pursue legal remedies for recovery of possession. Instead of oursuing the legal remedy, the members of the complainant party assembled together and collected some more persons and thereafter went in a more to the field in dispute where the appellants were sowing the seeds, In these circumstances, it can be easily inferred that the visit of the members of the complainant party was not innocent. It is not a case of simple civil trespass. We are, therefore, unable to accept the contention of the learned Public Prosecutor.</p><p style="text-align: justify;">14. There is yet another aspect of the matter. The incident is alleged to have taken place on 19-7-1985. Umrao Khan died in the hospital nearly after 7 days on 26-7-1985. Accused Dhanna Lal inflicted only one blow. There was no repetition of blows on his part. The single blow unfortunately resulted in death of the victim. Looking to the long lapse of 7 days in between the infliction of the injuries and the death resulting from it, it cannot be precisely said that the injury sustained by the deceased victim was sufficient in the ordinary course of nature to cause death. There was no intention on the part of accused Dhanna Lal to cause the death of the victim. The trouble was invited by the deceased victim and the members of his family when they visited the field in dispute. In these circumstances, only knowledge can be attributed to the appellant Dhanna Lal that be did an act which is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause death. In that event, the offence will again fall Under Section 304 IPC.</p><p style="text-align: justify;">15. In the result,</p><p style="text-align: justify;">(1) The appeal of accused Babu Lal is allowed. His conviction Under Section 302 IPC and the sentence awarded to him are set aside. He is acquitted of the said offence. He is in jail and shall be forthwith set at liberty if not wanted in any other case, and</p><p style="text-align: justify;">(2) The appeal of accused Babu Lal is partly allowed. His conviction and sentence Under Section 302. IPC ate set aside and in lieu thereof he is convicted Under Section 304 IPC arid re sentenced to five year's rigorous imprisoment with a fine of Rs. 1,000/-. in default of the payment of fine to further undergo six month's like imprisonment.</p><p style="text-align: justify;">16. The apeal is accordingly disposed of,<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '1990(1)WLN489', 'ratiodecidendi' => '', 'respondent' => 'State of Rajasthan', 'sub' => 'Criminal', 'link' => null, 'circuit' => null ) ) $args = array( (int) 0 => '759974' ) $pattern = '/\(((0[1-9]|[12][0-9]|3[01])[.](0[1-9]|1[012])[.](17|18|19|20)[0-9]{2}).*\)/' $shops2 = nullinclude - APP/View/Case/meta.ctp, line 39 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
LAW: the Penal Code, Section 304 IPC, Section 96, Section 97, Section 99, Section 103, Section 34 IPC, Section 304, Section 302 IPC, Section 304 IPC, Section 302 IPC, Section 302, Section 304
PERSON: S.S. Byas, Dhanna Lal, Babu Lal, Jhalawar, Bhanwari Bai, Umrao Khan, Bhanwari Bai, Dhanna Lal, Babu Lai, Nathu Lal, Ratan Lal, Mathura Ram, Ismail Khan, Sarpanch Ismail, Sarpanch, Ismail Khan PW 1, Babu Lal, Dhanna Lal, Umrao Khan, Babu Lal, Umrao Khan, Umrao Khan, Ismail Khan, Mosam Khan, Isan Khan, Umrao Khan, Umrao Khan, Ismail Khan, Umrao Khan, Kota, Umrao Khan, Wound 2-1/2', Vijay, Ismail Khan, Isan Khan, Mosam Khan, Jogendra Pal Singh, P-5, Jogendra Pal Singh, Umrao Khan, Nathu Lal, Ratan Lal, Mangi Lal Bhanwar Lal, Lal, Lal Ganga Ram, Mathura Lal, Dhanna Lal, Babu Lal, Bhanwari Bai, Mangi Lal Bhanwar Lal, Ratan Lal, Nannu Lal, Ganga Ram, Mathura Lal, Nathu Lal, Ratan Lal, Dhanna Lai, Babu Lal, Dhanna Lal, Babu Lal, A.K. Gupta, O.P. Sharma, Gupta, Umrao Khan, Dhanna Lal, Babu Lal, Umrao Khan, Gupta, Dhanna Lal, Babu Lai, Gupta, Mathura Lal, Mathura Lal, Dhanna Lal, Dhanna Lal.8, Babu Lai, Umarao Khan, Babu Lal, Babu Lal, Dhanna Lal, Ismail Khan, Umrao Khan, Umrao Khan, Dhanna Lal, Dhanna Lal, Dhanna Lal, Babu Lal, Babu Lal, imprisonment.16
NORP: J.1, Khatedar
ORG: IPC, Kollu Khedi PS Jhawar, Khatedari, Smt, Maugilal Bhanwarlal, Biswas, the Government Hospital, the General Hospital, Medical Jurist Dr. Vijay, PW 4, Medical Officer Incharge, Government Dispensary, Rajasthan State Forensic Science Laboratory, the Judicial Magistrate, Public Prosecutor, the complainat party, Public Prosecutor, Infliction, Public Prosecutor, IPC, IPC, IPC, IPC, Section 104 IPC, IPC, Section 104 IPC, S. 103 IPC, S. 104, Public Prosecutor, Public Prosecutor, S. 34, IPC, State of Bihar v. Nathu and Ors, Public Prosecutor, Public Prosecutor, Public Prosecutor, IPC, IPC
CARDINAL: 1,000/-, two or three, 6, about 3.00, 4.00, 13, two, 13, one, three, 307, 148, 26, 26, 1, 30, 11, two, 302, 148, 324, 324/149, 16, six, three, only two, 26, 19, One, Only one, only one, 2, 26, only one, 1,000/-
DATE: six months', November 23, 1987, 1985, the same day, 19-7-1985, PW 5, PW 1, 1985, 1985, PW 16, 19-7-1985, 19-7-1985, 302/149, the day, 19-7-1985, 7 or 8 days, 1970CriLJ5, 7 or 8 days, 19-7-1985, 7 days, 7 days, five year's, six month's
GPE: District Jhalawar, Harak Chand, Jhalawar, Jhawar, Jaipur, Harak Chand, Harak Chand, PW
EVENT: PW 1 Ismail Khan
PRODUCT: Swords, P-31
ORDINAL: first, first, first