Parkash Chand vs The State of H.P.

Bhawani Singh, J.—By this petition, Petitioner, Shri Parkash Chand, assails the judgment of Additional Sessions Judge, Mandi, in Criminal Appeal No. 18 of 1986 decided on 13-2-1987 whereby the judgment of Judicial Magistrate, 1st Class, Sarkaghat, dated 30-10-1986, convicting the Appellant u/s 326 of the Indian Penal Code and sentencing him to undergo simple imprisonment for one year and to pay a fine of Rs. 2000/- and m default of the payment of fine, to undergo further simple imprisonment for three months, has been affirmed.

The facts, in brief, are that land known as, Kathyar village Banji was owned by Smt. Wajiru, but the accused had been claiming his possession over it as a tenant-at-will since the time of his father Shri Roshan Lal. There had been litigation between the parties regarding this land and the complainant, Shankar had been prosecuting the same on behalf of Smt. "Wajiru as her Mukhtiar-K Iias''''. Ultimately, the matter Was compromised on 13-84985 in the court of District Judge, Mandi, .when Smt. Wajiru is stated to have admitted Roshan Lal, father of the accused, to be in possession of the land in question.

On 3-10-1985, the complainant along with his wife, Smt. Sandhya, and his brother-in-law, Shri Kartar Chand, went to the land in the afternoon at about 2.30 or 3 PM and started ploughing it. At this stage, the accused armed with an axe in one hand and a bottle of acid in the other hand, accompanied by his wife Smt. Shakuntala, armed with a danda, came there and asked the complainant party to desist from ploughing the fields as it was in their possession. The complainant party refused to stop ploughing the field whereupon the accused threw the bottle of acid on Kartar Chand and thus inflicted burn injuries on his person. The accused brought Anr. bottle of acid from his nearby house and threw it on Smt. Sandhya causing burn injuries on face, breast and other parts of her body. They raised alarm which attracted Lohka Ram, Sohnu, Madan and Ruliya. Shankar, his wife Sandhya and brother-in-law came to police Station, Sarkaghat, and lodged the report and got both Sandhya and Kartar Chand Medically examined. The medico-legal certificate (Ex. P.W. 5/A) by Dr. Suresh Sharma (P.W. 5) about Sandhya Devi is as under:

Blackish discoloration over the face and neck over half of the forehead. Cheeks, nose, mouth and right side of neck bear the burns caused by some acid. There is slight charring of hair and eyebrows and a line of demarcation between the healthy skin, eye-both contested, but pupils and cornea are normal, pupils reacting to light. Multiple small spots of burns are on the chest and breast present.

A case under Sections 326/34 of the Indian Penal Code was registered and ultimately the trial ended in the aforesaid conviction of the accused. However, his wife Smt. Shakuntala, was acquitted as no offence against her was made out.

Shri J.K. Verma, vice Shri M.G. Chitkara, learned Counsel appearing for the accused, contends that the accused was justified in defending his property-the land.'' It is further asserted that there was imminent danger of the accused being dispossessed by the complainants and but for his exercising his right of private defense, his client would have been dispossessed by the aggressors, the complainants. It is admitted that the acid was thrown by the accused but it is asserted that the same was done in order to push back the complainants and save the property from dispossession and the right of private defense was not, at all, exceeded. I proceed to examine these submissions by reference to, the evidence on record and the principles of law applicable to the facts and circumstances of this case.

The right of private defense is codified in Sections 96 - 100 of the Indian Penal Code. Whether the same is applicable or not, the Court has to examine the fact-situation of the case and the evidence on record. Cases falling under this principle are not easy. It is essentially a defensive right circumscribed by the statute available only when, the circumstances clearly justify it. It .cannot be exercised for vindication of revenge, say, for retribution purposes. It is available not only relating to body but also qua property. The present case of the prosecution lies in a narrow compass. It is to be examined whether such a right, as asserted by Shri J.K. Verrna on behalf of his client, is available to the accused. It is clearly in evidence that the accused was in possession of the property in question. The first crop had been. Cut by him now, it was the question of ploughing the land for Anr. crop. At this stage, the complainant appeared, on the scene and tried to take possession of the land by ploughing it. They are resisted by the accused and his wife. So, a party established to be in possession of the land, is entitled to. The right of private defense of property against, an aggressor. This right was available to the accused and the contention of Shri M.S. Guleria, learned Assistant Advocate General that the land was vacant and ploughing the same by the complainants did not constitute threat of dispossession, has no substance. Simply because the land was vacant after the first crop had been cut, that does not mean anyone can trespass into that and take possession of it against the rightful owner. Such a plea cannot be understood and, if permitted, may lead to a very strange situation as;. for example, the owner of a house having gone away after leaving his house vacant,, is occupied by Anr. a trespasser in his absence and in case this argument of Shri M.S. Guleria, learned Assistant Advocate General,, is accepted . and applied in this case, rightful owners will-never leave the possession of their properties lest in their absence the premises may be occupied , by any trespasser.

As a matter of fact, the only question relevant in this case is to determine whether the accused was justified in exercising his right of private defense of property to the extent of throwing. Acid at the complainants and whether he had exceeded the fight of private defense by causing grievous. Injuries to Smt. Sandhya. In my opinion, the accused has not exceeded his right of private defense by causing injuries by throwing acid on Smt. Saridhya. It is the case of the prosecution that the accused was carrying an axe in one hand and a bottle of acid in the other hand at the time of the incident but he has only used the acid instead of the axe. Secondly, he threw the acid at Kartar Chand and when the complainants did not desist from ploughing the field, the accused brought Anr. bottle which he threw on Sandhya. Facts, therefore, disclose persistence on the part of the complainants to take possession of the property of the accused and he had every justification to protect his possession.

The argument of Shri M.S. Guleria that instead of reporting to this act, the accused should have taken recourse to the protection of the public authorities is equally untenable. It is in evidence that the complainants came on the land and started ploughing the same. The act of mischief, thus, had begun and apprehension of danger to the property was there and the right of private defense had, in these circumstances, come into existence. In such a situation, to expect that the accused should have left his property there and himself gone to the public authorities to seek protection is not the legal position. The law, on this aspect, has been settled by the apex court in Jai Dev Vs. The State of Punjab, wherein the Court said as under:

In appreciating the validity of the Appellant''s argument it would be necessary to recall the basic assumptions, underlying the law of self-defense. In a. well-ordered civilized, society it is generally assumed that the State would take care of the persons and properties of individual citizens and that normally it is the function of State to afford protection to such persons and their properties. This, however, does not mean that a person suddenly called upon to face an assault must run away and thus protect himself. He is entitled to resist the attack and defend himself. The same is the position if he has to meet an attack on his property. In other words, where an individual citizen or his pr6perty is faced with a danger and immediate aid from the State machinery is not readily available; the individual citizen is entitled to protect himself and his property. That being so, it is a necessary corollary to the doctrine of private defense that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. The exercise of the right of private defense must never be indicative or malicious.

The extent of the injury cannot below consider being grievous looking to the evidence of Dr. Suresh Sharma (P.W. 5). Besides, it is in evidence that after the incident, Smt. Saadhya, Shankar and Kartar Chand went to the police station to lodge the report. Has these injuries been serious enough to call them as grievous, it was enough that any of them or any other person could have gone to lodge the report.

The reasoning, of the appellate courts below are thoroughly conjectural, inapt and against legal principles involved in the present case.

The result, therefore, is that there is merit in this revision the same is allowed. The conviction of the Appellant is set-aside. He is acquitted of the charge. Bail bond and surety bond any, executed by him at any stage of this case, are hereby cancelled.