RADHEY SHYAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Under his judgment dated March 14, 1983 the learned Addl. Sessions Judge No- 1 Bharatpur maintained the conviction against the accused petitioner under Sec. 325 Penal Code as well as the sentence of 6 months' simple imprisonment and a fine of Rs-50.00 or in default of payment of fine to further suffer simple imprisonment for 15 days. He further affirmed the conviction against the accused petitioner under Sec. 323 Penal Code and sentence of four months I imprisonment.

(2.) It is contended by the learned counsel for the petitioner that the learned appellate court in para 9 of its judgment held that the accused petitioner had a right of private defence of property, but held that he exceeded it. He contended that this conclusion of the learned Addl. Sessions Judge is not correct. A look at para 9 of the judgment of the learned appellate court will show that the learned court has observed that the trial court has recorded a finding that the accused petitioner was in possession of Khasra No. 133 where the occurrence took place. The appellate court therefore held that the accused petitioner had a right of private defence of property, but then observed that it is to be seen whether the accused petitioner exceeded his right of private defence, There was one more person Hari who was tried alongwith the petitioner and the learned appellate court observed that so far as Hari is concerned he has a right of private defence because he had only caused simple injuries to Ramswaroop, but so far as the accused petitioner is concerned, the accused petitioner caused grievous injuries and therefore, he exceeded the right of private defence. The above approach of the appellate court is not in accordance with law. A look at Sec. 96 of the Indian Penal Code will show that nothing is an offence which is done in exercise of the right of private defence. Subject to the restrictions contained in Sec. 99 onwards of the Indian Penal Code every person has a right to defend the property moveable or immovable of himself or of any person against any act which is an offence falling under the definition theft, robbery, mischief or criminal trespass or which is an attempt to commit theft, robbery mischief or criminal trespass. No doubt a right of private defence in no case will exceed to the inflection of any injury than is necessary for the purpose of defence. Under Sec. 104 Penal Code if the offence, the committing of which or the attempting to commit which occasions the exercise of the right of private defence be theft, mischief or criminal trespass not of any of the descriptions enumerated in the last proceeding section, that right does not extend to the voluntary causing of death, but does extend subject to the restrictions mentioned in Sec. 99 to the voluntary causing to the wrong-doer of any harm other than the death. In the instant case, the petitioner is said to have caused grievous injury. It is well known that while exercising right of private defence the accused is not expected to weigh in golden scales the force used by him

(3.) Consequently, the revision petition is allowed and the judgments of both the lower courts convicting and sentencing the accused petitioner under Sec. 325 and 323 Penal Code are set aside. He is acquitted of the charge levelled against him. He is on bail. He need not surrender to his bail bonds which shall stand discharged.