Kanbl Nagji Kala and Others vs The State

Baxi, J.—The fact which give rise to attest appeals are briefly as under:

According to prosecution four boys named Balu Petha, Vija Jagu, Jema Raja and Masri Raja aged respectively 20, 9, and 19 took their cattle In that early dawn of 13-12-53 from their village Nandar-kha to a certain rivulet on the boundary of the village. They had between them about 30 head of cattle. They kindled fire and sat down to warm themselves leaving the cattle to graze about.

The cattle staved into the field of Appellant father Kala of Thntvala, which is near the boundary of Nandarkha. The boys noticed it some time later and went after them to turn them back. On stung untie me lieu the three Appellants and their servant Raghay Parshottam, accused No, 4, in the trial Court, rushed at them and assaulted the boys. Appeuants 1 and 3 were, it is alleged armed with an axe and Appellant 2 had a dharia.

Appellant 1 struck Balu two heavy bows on his face and head with his axe. Appellant 3 struck Jema with his axe and Appellants 1 and 2 struck Masvi with their weapons. The fourth boy Vija ran away. Balu had two incised wounds one on his forehead 5"X|" extending from the forehead along the right side of the nose down to the lip fractur-to of the bone below it and cutting the lip. The other wound was an incised wound 2"Xl/8" on the scalp. He had also three contusions on his right arm and leg.

Masri had an incised wound below his left eye and an incised wound on the lilt elbow and an in-closed wound on the leg. Jema had a contusion on his left shoulder. Balu''s injuries were serious, while the injuries on Masri and Jema were simple hurts. As regards Raghav no share in the assault was at first attributed to him nor was it alleged that he carried any weapon. This is clear from the first information reports, Exs. 3 and 31, the allegation against him being that he was standing at some distance; but during the trial it was alleged by Masri that he beat Jema with a Sanotha. On these facts the Appellants were charged under Sections 307 and 324, read with Section 34, I. P. C.

The Appellants'' defence was that- Appellant 1 and Raghav were sleeping in the field. Seeing that about 50 animals had trespassed into it, the Appellant sent Raghav to Untvala to call his brOrs. , Appellants 2 and 3 with a view to assist them in taking the cattle to the pound, as they thought '' that they would not be able to drive so many animals without assistance. After the arrival of the brOrs. they started to drive the cattle, but after they had gone about 15 to 20 paces, four or five persons, whom they could not identify-on account of darkness, came running and one of them dealt blow to Appellant 2 with a stick.

The Appellants and his servant got afraid and ran away. Next day, i.e., on 14rl2-53, Appellant 1 lodged a complaint with the police for trespass and "hurt UV which he mentioned one Manu Sadul and ''two other persons of Nandarkha. This complaint "Mat Ex. 86 and Ex. 56-A; Appellant 2 had a lacerate wound- i"xl/6" below the right eyebrow.

As the trespass was admitted by the prosecution and the injuries to the boys proved beyond doubt by medical and other evidence, the learned Additional Sessions Judge addressed himself to the questions whether the injuries were caused by all or any of the accused and, if so, whether they were caused in furtherance of a common intention to commit murder or cause injuries to the boys. He held that the prosecution had not proved any common intention and that Appellant 1 had caused grievous hurt to Balu with his axe and a simple hurt to Jema. He held that Appellant 2 had caused simple hurt to Masri with a Dharia and had also beaten the other boys and Appellant 3 had caused simple hurts to Jema and Masri with n Khaaipai. He held that the annuitants had assaulted the bees in the heat and excitement of the moment at them nether to the field and consequently in Appellant 2 was struck by any one and held that the boys could not have obstructed them from taking the cattle to the pound and Dnepr the circumstances to occasion had arisen for the alleged exsreise of the right of private defence.

In the result he acquitted all the Appellants of the charge under Sections 34 and 307 I. P. C, but convicted Appellant 1 under Sections 324 and 326 I.P.C. Appellant 2 u/s 324, I. P. C. and Appellant 3 u/s 323 I. P. C. He sentenced Appellant to one year''s rigorous imprisonment in respect of the offence u/s 326, I. P.C., and to six months'' rigorous Imprisonment in respect to Oriento under, Section 324, I.P.C. order, amt the sentences should run concurrency. He entranced Appellant 2 to six months'' rigorous imprisonment and Appellant 3 to three month�s rigorous imprisonment. He acquitted Raghav of all charges.

The Appellants had preferred an appeal to this Court against their conviction and sentence, while the State has preferred an appeal against the acquittal of the Appellants and Raghav in respect of the charges under Sections 34 and 307, I. P. C.

We shall first take up for consideration the appeal by the Appellants. The main facts are at now disputed before us and it is conceded that the Appellants assaulted the boy''s and caused them injuries a alleged. In fact the prosecution evidence on this point is conclusive against them. The four boys, who are eye-witnesses, have given a detailed account of the incident and they have been believed by the .learned Additional Sessions Judge. They are corroborated by the witness Bapubhai, Ex. 21, who met the boys Masri and Jema, while they were returning home alter the attack, carrying Baloo on a buffalo as he was too hurt to walk.

The first information reports Exs. 3 and 31 given by the respective brOrs. of Balu and Masri which were separately recorded by the Police Patel at their respective houses and which relate the Incident in substantially the same terms except as; regards the details of the injuries also corroborate them. The boys are further corroborated by Ehim Jhina, Ex., 2, Anr. servant of the Appellants, who states that he was also at the field when the cattle trespassed and he was sent by Appellant l -to call his brOrs. along with Raghav. He actually returned with them, but he did not go to the Appellants'' field and dropped but on the way.

Bhirn says that Appellant 3 picked up a Kham-pall from Shamji''s (Ex. 23) wadl and he is corroborated on this point by Shamjl. The circumstantial evidence in the shape of the injuries to the boys and stains of human blood on Appellant l''s garments also corroborates them. The panchnama of the scene of the offence which was made on the 14th Ex. 35, proves that the heap of the fodder was disturbed. This panchnama was made at 1 p.m.

Another panchnama of the same place was made by the police at 1-30 p. m., during the investigation of Appellant l''s complaint, Ex. 66. That panchnama is at Ex. 57 and proves not only that the stack was disturbed but it was littered with clung. It is not necessary to examine this and other, evidence about the assault on the boys in any in was of the fact that the assault is coifed behalf of in Appellant;

Therefore the crucial question for deists is whether the Appellants had acted in the excess deice. It must

Appellant 3 was at home, and Appellant 2 was at the noose of Hari Duda, kx. 27, pieparing sweet, meat;, there and consictcradle time inquest have elapsed between Appellant 1 sending Ragha to the village and his return to the field With the other opponents. During ail this time it is not possible that Appellant 1 made no attempt by shouts or other means to prevent the cattie from trespassing into the lacier. The buys must have heard the commotion caused by the acute and thus known, that they were straying into the Appellants'' field and causing damage.

The truth of the matter appears to be that the boys did not care what the cattle were doing until they came to know probably by hearing their Exhorts that Appellant 1 had received reinforcements, ''A he boys must then have gone to the field to take the cattie Dack. Similarly the defence of the Appellants that they had rounded up the cattie and started to take them to the pound and had actually proceeded 15 to 20 paces when Appellant 2 was hit by a stick cannot be believed, because of the stains of blood, which were noticed within 4 cubits of the heap, knowing that the scoria must have taken place very near the heap.

Nevertheless, the cattle were admittedly trespassing into the. Appellants'' field and easing damage and they ha a an undoubted right of ''taking measures to protect their ladder and this right extended, u/s 104, I. P. C, to causing injuries to the boys short of death: But this right is subject to the restrictions contained in Section 99. The material para of that section enacts that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. The harm which the Appellants caused was the assault op the boys.

If it is shown that an occasion for the assault had arisen, the Court would not be Justified in nicely balancing the amount of force necessary to repel the trespass and mischief. The Appellants cannot justly be expected to measure out the attack proportionate to the needs of the occasion and even if they used more force than was strictly necessary, they would be entitled to claim the benefit of the exception.

At the same time if the circumstances of the case show that the occasion to use force had not arisen at all, the use of any force was unjustified, and the assault on the boys would lose its Justification and the plea of the right of private defence cannot avail the Appellants. This would be so even If tin boys intentionally allowed the cattle to trespass into their eel and cause damage, and even if they entered the held, though these circumstances might well go a long way towards extenuating the offence.

In the present case the Appellants obviously ltiteiiuou in the last instance to drive the cattle to the pound. If, as the Appellants allege, they were obstructed in this and Appellant 2 was attacked, they Out have been Justified in repelling the attack by force. But as we have pointed the their mary that they were'' attacked alter they had herded off the cattle and driven'' them for a few paces is disproved by the evidence of blood-stains near the stack.

It is not their case that Appellant 2 was attacked near the stack. Therefore on their own showing none of them was attacked at the place where they assaulted the boys and consequently they had no right to use force against them. Moreover the learned Additional Sessions Judge had seen the boys as full as the Appellants. He found great disparity in User respective ages and physique. According to him the Appellants are stalwart young men of 26 to 30 while the three of the boys were of tender age, Masri and Vija being only 10 and 9 resin reactively.

Bam is no doubt 20, but he appeared to the Additional Sessions Judge to be of small stature. is therefore not possible that they would attempt to obstruct the Appellants and his servant from taking away the cattle particularly as the three; appellants were armed with dangerous weapons and was standing by. We can quite conceive that the boys must have joined with the Appellants in an exchange of some verbal abuses, but they could not possibly have committed any overt act, which called for the use of any force.

Appellant 2 had no doubt a lacerated wound below rues right eye brow but it was too insignificant in size to have bean, caused by a stick blow and whatever caused it, it could not have been caused by any of the boys, The Appellants had therefore no justification for beating the boys and the plea of self-defense was very properly rejected by the learned Judge below.

The only plea which might possibly avail the Appellants would be that they lost control by grave and sudden provocation offered by the boys in allowing the cattie to stray into their held, but it is not necessary to consider this piea in view of the fact that we propose to reduce the sentences of Appellants 2 and 3.

As regards Appellant 1, the sentence in respect of the grievous hurt caused to Balu is we4 within-the limits prescribed by Section 335, I. P. C, and he Is not likely to receive any benefit by our altering his conviction. The Appellants'' convictions must, therefore, be confirmed;

We had issued a notice for the enhancement of sentence to Appellant 1 in view of the severe injuries on Balu, But after going through the evidence we are satisfied that this is not a case for enhancement.

We shall now turn to the appeal by the State/ The learned Government Pleader argued that the, circumstances proved that all the accused had the common intention of mercilessly beating the boys and therefore Section 34 should have been applied to their case.

Now before the accused can be convicted u/s 34, it is necessary to prove that there was a previous concert or meeting of minds. There need rot be a long interval of time between the formation of the common intention and the intended act but the preconcert or the meeting of minds should be distinct from the act itself. See Pandurang, Tukia and Bhillia Vs. The State of Hyderabad, ) and Rishldeo v. State of Uttar Pradesh, AIR 1866 SC 331 ( (S) v. 42)) (B).

In this case there was no Question of the accused having formed any common intention until Appellants 2 and 3 arrived on the -cone. After their arrival there was hardly any time to lormulate any common plan for the Appellant''s first concern on their arrival would be to stop the damage which the cattle were doing and drive them away from the.

But, before this could be accomplished the boys came on the scene and the Appellants, right leveling indignant with them, fed upon them with a view to chastise them. But they did so without any community of design. Bach Appellant was acting, on his own impulse. Therefore it is not possible to] accept the Government Pleader''s contention that Section 34 applied to the circuiustances of this case.

As regards the Appellants'' acquittal of the charge u/s 307, I. P. C we agree with the learned Additional Sessions Judge that the mensrea, which is essential to the offence of murder, was absent in this case. The Appellants had no time to think of anything else except chastising the buoys.

They used the weapons that happened to be with ''them. The weapons were ordinary agriculture pelmets and did not necessarily indicate berate intention to cause death or fatal injuries to the boys.

In beating Balu therefore Appellant 1, against him alone the charge can be sustained, could not be said to have attempted to commit murder. The Appellants'' acquittal under Sections 31 and 307 must there-lore is confirmed. The appeal against the acquittal of is equally without any substance. The U Kt information, lexis 3 and 31, show Unit the boys the fumeless did not accuse Raghav of having taken part in the assault nor did they allege that he was armed with any weapon.

During the tram, Masrl alone implicated him underrated that he had beaten Jenia with a Sanotha, But Jerna does not say so. Even the Police Sub-Inspector treated him as a witness during the early stages of the investigation and it was only on 1542 1853 i.e., 2 days after the occurrence that on Information received from Raghav''s cousin Dahya that the Sub-Inspector treated him as an accused person.

In these circumstances it is not possible to except the prosecution''s subsequent version that Joined the Appellants in the Msault with a flanotha. The learned Advocate for the Appellants argued that the Sub-Inspector of Police had deliberately charge-sheeted Raghav with a view to payment him from being examined as an eye-witness curing the trial. We do not; think that this charge cm be sustained. Prom Dahya the Sub-Inspector loran the Raghav had gone to his was next morning and had made a statement to him (Dahya).

According to Dahya Raglrav curled a broken Sanothiv which Dahya identified as the muddamal Sanotha. This Sanotha is broken and the pieces of a Sanotha found on the scene of the offence which Raghav is alleged to have carried. Under the circumstances the Police Sub-Inspector acted properly in treating Raghav as, the accused.

In the result the Appellants'' convictions are confirmed. Appellant I has caused very serious Injuries to Balu the learned Additional Sessions Judge has taken account of the extenuating circumstances in passing the sentence and we do not think that the sentence is at all excessive. We therefore confirm his sentence.

As regards Appellants 2 and 3 we think that their sentences are excessive. They caused comparatively minor injuries to the boys in circumstances-of grave provocation and the end of justice will be satisfied by reducing the sentence of Appellant 3 to one month''s rigorous imprisonment and the sentence of Appellant 3 to three imprisonment and their sentences are reduced accordingly.

Shah, C.J.

I agree.