VADILAL POCHABHAI THAKKAR Vs. STATE OF GUJARAT

JUDGEMENT

(1.) We will first take up the question whether the accused were entitled to the exercise of right of defence of property as contended by the learned Counsel Mr. D. V Patel for the appellants. We may mention at the outset that no such contention was raised before the trial Court. The accused have also not come out with a say that they acted in exercise of the right of defence of property. But it is a settled position of law that even if the accused have not comeforth with a say that they were acting in exercise of the right of defence of person or property that question can be considered by the Court provided that could be borne out from the material on record. It may however be mentioned here that no suggestion was made to any of the witnesses during their cross-examination from which it could even of remotely inferred that the accused were acting ill exercise of the right of defence of property. In other words no basis has been laid in the cross-examination of any of the witnesses which would show that the accused were acting in exercise of the right of defence of property. In the present case there is nothing on record to show that after going to the scene of his incident the accused asked the Bharwads to go out of the field along with their cattle and the Bharwads resisted and refused to go out. The prosecution evidence shows that soon after going to the scene of this incident the accused began to assault the deceased as well as the injured. The question is whether the accused can say that they were entitled to go and attack the Bharwads who were grazing cattle and then claim that they were exercising the right of defence of property. Having given our anxious though to this question we are not inclined to accept the submission of Mr. Patel that the accused were entitled to claim the right of defence of property. The question of their exceeding the right therefore does not arise for consideration.

(2.) Before going to the discussion of the decisions cited at the Bar we would like to refer to the relevant provisions of the Indian Penal Code with regard to the fight of private defence of body and property. The relevant portion of Sec. 99 I P.C. reads as follows:

(3.) We will like to refer to some of the decisions which were cited at the bar. The first decision is of the Supreme Court reported in Munshi Ram & Ors. v. Delhi Administration AIR 1968 SC 702. It appears that the plea of private defence was not taken in the statement under Sec. 342 Cri. Pro. Code. The necessary basis for that plea was laid in cross-examination of the prosecution witnesses as well as by adducing defence evidence and therefore the Supreme Court held that the Court can consider such a plea and that the burden of establishing that plea is on the accused and that can be discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record. In the present case no such basis was land at any stage of the trial as stated by us a little earlier. It appears from the facts of that case that one J was in possession as a tenant of the land in dispute which was an evacuee property and the land was sold in public auction to the complainant and sale certificate was issued and delivery was allegedly given thereafter in pursuance of the warrant issued by the managing officer but J was neither present at that time nor was aware of it and the complainant-party went there with deadly weapons and tractor to the field and accused Js relations asked them to clear cut of the field but they refused to do so and tried to push them and attacked them and in that incident some persons received simple injuries. The Supreme Court held that the accused had right of private defence and did not exceed that right and the alleged actual delivery was unauthorised. The Supreme Court held that the complainant party was guilty of criminal trespass and had constituted an unlawful assembly. It was contended before the Supreme Court that J had enough time to have recourse to the protection of the public authorities and therefore the accused-appellants could not claim right of private defence. The Supreme Court negatived that contention on the facts of that case. The Supreme Court observed in this regard as follows: Law does not require a person whose property is forcibly tried to be occupied by trespassers to run away and seek the protection of the authorities. The right of private defence serves a social purpose and that right should be liberally construed. Such a right not only be a restraining influence on the bad characters but it will encourage the right spirit in a free citizen. There is nothing more degrading to the human spirit than to run away in the face of peril. In the case before the Supreme Court it appears that when relations of J went to the field and asked the persons who were cultivating the field to go out they were attacked and it was in that context that the Supreme Court held that the accused had a right of private defence and they had acted in exercise of that right. In the present case it appears that the persons who went to the field started assaulting the Bharwads without even asking them to leave the field with their cattle This decision of the Supreme Court is therefore not of any assistance to the accused-appellants in the present case so far as this aspect is concerned.