'Exercised Right Of Self Defence To Protect Property': Karnataka High Court Acquits Three Men Convicted For Injuring Cousins With Sickle

Observing that it is open for a court to consider the right of self defence if it arises from the material on record, the Karnataka High Court recently acquitted three men, who had attacked and injured their cousins during a property-related quarrel in 2008.

A single bench of Justice S. Rachaiah said Section 96 of the IPC provides that nothing is an offence which is done in exercise of the right of private defence.

"It is settled principle of law that, even if the accused does not plead self defence, it is open to the Court to consider such a plea if the same arises from the material on record."

The court allowed the appeal filed by convict Nagesh and others and set aside the conviction order dated 22.07.2010 passed by the trial court. The accused were convicted for offences under Sections 326, 324, 506 of the Indian Penal Code.

The bench said the trial and appellate courts failed to consider the right of private defence.

"The Trial Court ought to have looked at some independent corroboration where the witnesses are related and interested. Due weightage has to be given to the facts and circumstances and hyper technical approach has to be avoided in considering what happens on the spur of moment on the spot and keeping in view the normal human reaction and the conduct, where self preservation is the paramount consideration," said the court.

Case Details

In the case dating back to August 2008, the accused, who are children of one Thimmegowda, had allegedly assaulted his brother's family with a sickle and caused grievous injuries to them when they were ploughing a piece of land. There was a civil litigation between Thimmegowda and others with respect to the land in question. The accused were booked by the police under Sections 447, 326, 324, 506 read with 34 of IPC and later convicted in 2010. The Sessions Court dismissed their appeal in 2013.

Arguments of the convicts

Senior Advocate Hasmath Pasha, appearing for the convicts, contended that disputed land belongs to Thimmegowda, and his children are owners of the property by virtue of the judgment and decree passed in 2006. The complainants had illegally entered into the land and started cultivating it, the court was told.

"The Accused in order to protect the property asked them to refrain from illegal cultivation, then the altercation followed. The accused are not the aggressors, therefore, their right to defence should have been protected by the Trial Court," submitted Pasha.

The court was also told that the accused had gone to the land unarmed and the tool which was used by the accused had been brought by the complainants to cultivate the land.

"No independent witnesses have been examined regarding alleged overt-act of the accused. In fact, the accused have not assaulted the injured, it was only verbal exchanges between the accused and the injured," it was argued.

The State counsel, on the other hand, argued that the accused have used lethal weapons like sickle and caused grievous injuries to the complainants. It was also submitted that the accused had entered the land illegally and assaulted the injured.

Findings

The bench noted that Thimmegowda's brother, who is the father and grandfather of the injured persons, had lodged the complaint stating that the accused are aggressors and trespassers and that they assaulted and caused simple and grievous injuries to his family members.

However, the bench added, the trial court has acquitted the accused for offences under Section 447 read with 34 of IPC holding that they are not trespassers.

"If the accused No.1 to 3 are not the trespassers, the cause for the quarrel may not arise. It is an admitted fact that the land where the alleged incident had taken place is in dispute. It is further admitted that the father of accused No. 1 to 3 had won the case in R.A No. 51/2006. By virtue of the said judgment and decree, the accused Nos.1 to 3 are the owners of the said land. However, the evidence of P.W1 discloses that he and children were ploughing the land on the date of alleged incident," said the court.

Referring to section 96 of IPC, the court said the provision does not define the expression 'right of private defence'.

"It merely indicates that nothing is an offence which is done in exercise of such right. The bench said "It is true that the burden is on the accused to establish the plea of self defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reasonable doubt, the accused need not establish the plea to the guilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross-examination of the prosecution witnesses or by adducing defence evidence."

Then it referred to Section 97 of IPC which deals with the subject matter of the right of private defence.

"The right may be exercised in the case of offence against the body, and in the case of offence of theft, robbery, mischief or criminal trespass and attempts at such offences in relation to property. The said right of private defence lays down the limits. Sometimes even it can extend upto causing voluntary causing of death. However, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him."

Observing that the injured persons were ploughing the disputed land which belongs to accused persons, the court said the accused have proved that they exercised right of self defence.

It further said that all witnesses have not disposed that the accused had gone to the land with deadly weapons in their hand. "They went to the spot unarmed and tried to protect the land. The Trial Court ought to have looked at some independent corroboration where the witnesses are related and interested," said the court.

Holding the accused entitled to benefit of Section 97 IPC, the court said these points have not been considered by the Trial Court as well as the Appellate Court while appreciating the evidence on record.

"Therefore, the judgment of conviction and order of sentence and also the order of confirmation of judgment of conviction passed by the Appellate Court are erroneous and are liable to be set aside," it added, while setting aside the judgment of conviction and order of sentence.

Case Title: NAGESH & Others v. STATE OF KARNATAKA