Holding

The right of private defence does not extend to causing death in a simple land‑trespass case, and the accused’s pre‑meditated, armed assault precludes the invocation of Exception 2 to Section 300 IPC, warranting conviction for murder under Sections 302 and 149 IPC.

Summary

The State of Rajasthan appealed the Rajasthan High Court’s judgment that acquitted five accused of murder (Sec. 302 IPC) on the ground of private defence and convicted them only under lesser offences. The incident involved a dispute over agricultural land where the accused were found ploughing the complainant’s field; when the complainant Shiv Ram questioned them, he was shot and his nephew was beaten. The Supreme Court held that the complainant’s party was in possession of the land and the accused entered as armed trespassers with pre‑meditation to kill, thus the right of private defence could not be invoked. It clarified that under Sec. 103 IPC the right of private defence extends to causing death only in cases of house‑breaking by night, not ordinary trespass, and that Exception 2 to Sec. 300 IPC does not apply where the accused act with pre‑meditation and excessive force. Consequently, the Court set aside the High Court’s judgment, restored the trial court’s convictions for murder and related offences, and ordered life imprisonment for the accused. The appeal was allowed.

Issues considered

The applicability of the right of private defence under Sections 97 and 103 IPC to the facts of the case
Whether Exception 2 to Section 300 IPC can be invoked when the accused acted with pre‑meditation and excessive force
Whether the complainant’s party committed criminal trespass under Section 441 IPC, thereby justifying private defence
The correct conviction for the accused – murder (Sec. 302 IPC) with common intention under Sec. 149 IPC versus lesser offences

Legislation cited

Arms Act, 1959
Code of Criminal Procedure, 1973s. 315
Indian Evidence Act, 1872s. 27
Indian Penal Code, 1860s. 103, s. 104, s. 148, s. 149, s. 300, s. 302, s. 307, s. 323, s. 441, s. 447, s. 97, s. 99

Subjects

private defenceright of private defencemurderculpable homicidecriminal trespassland disputepremeditationself-defenceexception 2 to section 300Indian Penal Codecriminal appeal

Judgment

ST ATE OF RAJASTHAN A
v.
RAM BHAROSI AND ORS.

AUGUST 12, 1998

[M.K. MUKHERJEE AND D.P. WADHWA, JJ.] B

Criminal Law:

Penal Code, 1860: Sections 97, 99, 103, 441 and 300 Exception 2.
c
Private defence-Right of-Extending to cause death-Availability a/-
Dispute related to ownership and possession of agricultural land-Accused
fully armed with firearms and lathis whereas complainants (deceased and his
nephew) unarmed-Accused found ploughing complainant's land and when
deceased questioned them he was fired upon and his nephew given lathi
blows-Held: Even assuming that the accused were in possession of the land, D
the complainants cannot have committed trespass under S.441-0therwise
also right of private defence can extend to causing death only in case of
house-breaking by night-Accused being fully armed with premeditation to
cause death they had the intention of doing more harm than was necessary
for the purpose ofprivate defence-Hence, Exception 2 to S. 300 not attracted. E

The respondents-accused were convicted by the Trial Court under
Section 302/149 of the Penal Code, 1860 and sentenced to undergo rigorous
imprisonment for life. However, the High Court acquitted the accused of the
offence under Section 302 IPC and convicted them under Sections 307 and
323 IPC on the ground that the accused acted under the right of private F
defence.

According to the prosecution the dispute related to ownership and
possession of a piece of agricultural land. On the day of the incident the
accused persons were found ploughing the complainant's land. When the
deceased questioned the accused as to why they were ploughing the land G
belonging to their family he was fired upon and his nephew was given lathi
lows. The deceased and his nephew were unarmed.

Allowing the appeal, this Court

\ D : I. The High Court was not right in overturning the finding of H
\ 1129
1130 SUPREME COURT REPORTS [1998] 3 S.C.R.

A the trial court without proper consideration of evidence on record that it was
the complainant party which was in possession of the land on the date of the
incident and that the accused trespassed into that land fully armed with
firearms and lathis with the object of killing any one who would obstruct
them in their design of taking possession of the land. In such circumstances
B the defence put forward by the accused that they were acting under the right
of self defence cannot be accepted. (1135-C-D)

2. Thought there would be right of private defence Section 97 of the
Penal Code, 1860 when offence of criminal trespass or attempting criminal
trespass is committed, under Section 103 IPC it is only in the case of house
C trespass that right of private defence can extend to causing death. That is
not the case here. On the assumption that it was the accused party which
was in possession of the land the complainant party could be said to have
committed or attempted to have committed offence of criminal trespass under
Section 441 IPC. There is nothing to show that the deceased and his nephew
entered upon the land in question with the intent to commit an offence or to
D intimidate, insult or annoy the accused party. [1136-E-F; 1137-A)

3. Exception 2 to Section 300 IPC would also not apply as from the
findings on record it was not a case where the accused were exercising right
of private defence without premeditation, and without any intention of doing
more harm than was necessary for the purpose of self-defence. The accused
E were there fully armed with premeditation to cause death and it could not be
side that they did not have the intention of doing more harm than was
necessary for the purpose of private defence. Clearly use of deadly force was
not justified merely to expel the deceased and his nephew, the alleged
trespassers. It was nowhere the case of the defence that there was no other
F way of getting them out of the land. The occasion certainly did not warrant
any action of self-defence. (1137-D-E)

Rajinder v. State of Haryana, [1995) 5 SCC 187, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
G 2087 of I 996 Etc.

From the Judgment and Order dated 1.5.96 of the Rajasthan High Court
in D.B. Cr!. A. No. 295of1994.

Aruneshwar Gupta and Ms. Reena Bagga for the Appellants.

H Ashok K. Mahajan for the Respondents.
'
STATE OF RAJASTHAN v. RAM BHAROSI [D.P. WADHWA, J.) 1131

The Judgment of the Court was delivered by A
D.P.WADHWA J. We condone delay in SLP (Crl.) No. 2625of1998 and
grant leave to appeal.

We heard both the appeals together.
B
State of Rajasthan is aggrieved by the judgment dated May 1, 1996 of
the Division Bench of the Rajasthan High Court (Jaipur Bench) for two
reasons: (1) acquitting Natthi, Karan Singh and Ram Bharosi of offences
under Sections 302/149, 149 and 447 Indian Penal Code (IPC for short) though
maintaining their conviction for offence under Section 323 IPC but reducing
their sentence to the rigorous imprisonment already undergone by them; and C
(2) acquitting Makhan and Gokula of charges under Sections 302, 148, 447 and
323 IPC and instead convicting each of them for offence under Section 307
IPC and sentencing them to undergo rigorous imprisonment for seven years
and to a fine of Rs.2000 and in default to undergo further rigorous imprisonment
for six months. Gokula and Makhan have appealed against the same very D
judgment against their conviction and sentence.

Additional Sessions Judge, Bayana (Bharatpur), who tried eight persons,
by judgment dated June 18, 1994 convicted Makhan and Gokula under Section
302 !PC and Natthi, Karan Singh and Ram Bharosi under Sections 302/149 !PC
and sentenced all five of them to undergo rigorous imprisonment for life and E
fine of Rs. 500 each and in default of payment of fine to undergo further
rigorous imprisonment for six months. All the five accused were also convicted
for offences under Sections 148, 447 and 323 IPC and each of them separately
sentenced to undergo rigorous imprisonment respectively for one year, six
months and six months. Three remaining accused, namely, Meera, Phoolan
Dei and Somoti were acquitted. It was against their conviction and sentence F
that the five accused filed appeals in the High Court which by impugned
judgment reversed the convictions and sentences passed by the learned
Additional Sessions Judge and as aforementioned. We may also note that the
police had also submitted chalans for offences under Sections 3/25 Arms Act,
1959. At the end of the trial, however, it was found that no charge had been G
framed against accused under these offences and consequently there could
not be any conviction against any of the accused.

The incident out of which these proceedings arose occurred on August
6, 1992 around 3.00 p.m. The dispute related to the ownership and possession
of a piece of agricultural land situated in village Milsuma, falling under the H
1132 SUPREME COURT REPORTS [1998] 3 S.C.R.

A jurisdiction of Roopwas Police Station. Deceased Shiv Ram along with his
nephew Vijay Kumar alias Neta had gone towards the land on a tractor. He
found that all the eight accused were ploughing their (Shiv Ram's family)
millet crops which they had sown a month or so earlier. When deceased Shiv
Ram questioned the accused as to why they were ploughing the field belonging
to their family he was fired upon, given lathi blows and stones were hurled
B at him. On August 8, 1992 at about 4.25 p.m. Shiv Ram died in the hospital
on account of injuries suffered by him. Vijay Kumar in the process also
suffered minor injuries. First Information Report of the incident was lodged
by Narender Singh, brother of deceased Shiv Ram on August 7, 1992 at 7.00 .,. .:
p.m. His explanation for delay in recording FIR has been accepted by both
C the Sessions Court and the High Court. It was that he had gone to Bharatpur
and returned to his village during the night of August 617, 1992 at 2.00 a.m.
when he was told about the incident and the fact that Shiv Ram, who had
suffered injuries, was taken to hospital at Bharatpur. Narender Singh rushed
to Bharatpur where condition of Shiv Ram was serious and on the advice of
the doctors Shiv Ram was taken to the hospital in Agra where he succumbed
D to his injuries. Narender Singh in his report recorded as under :-
"My father has five Bighas of (agriculture) Patia Chock land at
Milsuma under his possession and Khatedari in which we sowed
millet and yesterday i.e. on 6.8.1992 at 2.00-3.00 P.M. my younger •
brother Shivram and my son Ajay Kumar alias Neta hereinafter
E referred to as Vijay Kumar alias Neta went to see the fields where
Natthi, Gokula, Karan Singh, Ram Bharosi, sons ofTunda Makhan S/
o Natthi, by caste Gaderia Rio Nagla Heas Mauza Milsama,
accompanied by a girl and two women were found spoiling our field
in which we had sown millet. When Shivram admonished them, Makhan
and Gokula started to shower bullets, in the result of which Shivram
F got hurt in various places. As his condition was serious, he was
referred to Agra hospital from Bharatpur. He is still in serious •
condition. The women pelted stones and the rest of the people gave
blows lathies. When I reached the village at 2 O'clock in the night,
I came to know about this incident. On hue and cry being raised,
G Murari alias Gharua, Ram Sharan S/o Munshi Thakuar of Milsama
came there who saw the whole incident. Ajay Kumar has also got
injured."

On the basis of the report so lodged by Narender Singh, a case was firstly
registered against the accused for offimce under Section 307 !PC and other
H sections and after Shiv Ram expired Section 302 !PC was added in the case.
STATE OF RAJASTHAN v. RAM BHAROSI [D.P. WADHWA. J J 1133

Accused were arrested on various dates and recoveries effected. After the A
completion of the investigation 'challan' was filed against the accused in the
court and they were put on trial. Apart from the testimony of doctors,
investigating officers, 'halka' patwari there were three eye witnesses, namely,
Murari, Ram Sharan and Vijay Kumar whose statements were recorded. Ram
Bharosi accused appeared in his defence under Section 315 of the Criminal B
Procedure Code. Accused Gokula, Ram Bharosi, Natthi and Karan Singh are
brothers while accused Makhan is son of Natthi. Their defence was that they
were in possession and cultivation of the land and complainant partly wanted
to usurp their land and fabricated a false case against them. Ram Bharosi in
his statement before the court said that the land was entered in the name of
his father in the revenue record and after his death it was mutated in the C
names of his sons Natthi, Gokula, Karan Singh and Ram Bharosi. The mutation
itself was attested by Kishan Singh Sarpanch, father of the deceased Shiv
Ram. Ram Bharosi said that Kishan Singh had obtained a decree by playing
fraud upon court of the Assistant Collector, Bayana in January 1987 which
decree was challenged in a civil suit filed in the Court of Munsif, Bayana by
Ram Bharosi and his brothers. Ram Bharosi produced a certified copy of the D
plaint in that suit wherein allegations were made that Kishan Singh in collusion
with the process server obtained a forged report of service of summons and
obtained ex-parte decree. After Ram Bharosi and his brothers came to know.
of the ex-parte decree they instituted a civil suit against Kishan Singh in
July, 1987 wherein the court ordered maintenance of status quo. That order E
was still subsisting on the date of the incident. The order of mutation in the
names of Ram Bharosi and his brothers was also filed which is dated February
23, 1975, which showed that the land was in possession of these persons. On
this basis High Court concluded that Kishan Singh being Sarpanch took undue
advantage of his position and was successful in making changes in revenue
record and getting mutation of land in his name on account of the ex-parte F
decree which was under challenge and there was an order of maintenance of
status quo. According to the High Court it were the accused who were in
possession of the land and were ploughing the same on the date of occurrence
and that the complainant party was the aggressor. High Court said the trial
court erred in holding that it was the complainant party which was in G
possession. Judgement of the High Court does not at all refer to the evidence
produced by the prosecution on the basis of which the complainant patty
claimed ownership and possession. It would, therefore, appear that the
appreciation of the evidence on the question of the possession was one
sided. High Court was not examining the conduct of Kishan Singh. Admittedly
on the basis of the ex-parte decree mutation of the land was entered in the H
1134 SUPREME COURT REPORTS [1998] 3 S.C.R.

A name of Kishan Singh. Revenue records of Jamabandi and Khasra Girdavari
showed that it was Kishan Singh who was in possession of the land and was
cultivating the same. High Court has not referred to the finding of the trial
court that one month before the date of the incident the complainant party
had sown millet on the land which was growing at the time the accused were
ploughing the field. On one hand there were documents from the revenue
B records of the village filed by the prosecution which showed possession of
the complainant party on the date of the incident and there was other set of
revenue record filed by the accused which showed that as far back in 1975
it were the accused who were in possession of the land. We have not
understood the logic of the High Court judgment in not considering the
C evidence filed by the prosecution as to the possession of the land by the
complainant party. On the basis of the finding that it was the complainant
party which was the aggressor High Court said that the accused could not be
held guilty for committing offences under Sections 148, 149 and 447 !PC
and that neither they were sharing common intention nor were they mP,mbers
of unlawful assembly at the relevant time and, therefore, each of the accused
D could be held responsible for his individual act. High Court said that there
were no reliable evidence on record which proved whether the fatal injury
on the neck of the deceased Shiv Ram was caused by Makhan or Gokula and
that in the absence of the evidence to establish that their common intention
.was to cause death it would appear that they had common intention of causing
E injuries which could be dangerous to life and each of them would be guilty
of the offence under Section 307 !PC. Then the High Court examined the
charge under Section 323 !PC against accused Natthi, Karan Singh and Ram
Bharosi. It examined the statements of the eye witnesses Murari, Vijay and
Ram Sharan and concluded that there was no reason to disbelieve these
witnesses that Natthi, Karan Singh and Ram Bharosi did cause simple injuries
F on the person of deceased Shiv Ram and Vijay Singh. High Court did accept
the version of the eye witnesses and the occurrence as it took place. To that
extent the prosecution's case was accepted. Finally the High Court said: "the
upshot of the above discussion is that appellant Makhan and Gokula are
guilty of committing offence under section 307 !PC and the appellants Natthi,
c
G Karan Singh and Ram Bharosi are guilty of committing offence under section
323 IPC"

To us the whole discussion in the judgment of the High Court appears
to be rather inexplicable.

H About the incident as it happened and as was projected by the
,}
STATE OF RAJASTHAN v. RAM BHAROSI [D.P. WADHWA, J.] 1135

prosecution have been accepted by both the Trial Court and the High Court. A
Deceased Shiv Ram suffered gun shot injuries in his face at the hands of
Makhan and Gokula. It were these gun shot injuries to which Shiv Ram
succumbed and sufficient in the ordinary course of nature to cause death.
Vijay Kumar also suffered simple injuries from blunt weapon. So did Shiv Ram
also suffer both simple and grievous injuries caused by lathi blows given by B
Natthi, Karan Singh and Ram Bharosi and allegedly by pelting of stones. As
noted above, recoveries of fire arms and lathis were effected on the basis of
statements recorded under Section 27 of the Evidence Act. According to the
report of the Forensic Science Laboratory (FSL) firing was made from a fire
arm so recovered though it was not possible to determine the time of firing.

In our view High Court was not right in over-turning the finding of the
c
trial court without proper consideration of evidence on record that it was the
complainant party which was in possession of the land on the date of the
incident and that the accused trespassed into that land fully armed with fire
arms and lathis with the object of killing any one who would obstruct them
in their design of taking possession of the land. In such circumstances the D
defence put forward by the accused that they were acting under the right of
self defence cannot be accepted. The accused party was full armed. When
Shiv Ram and Vijay Kumar went to the land, they were unarmed. They found
the accused were already ploughing the land. When Shiv Ram questioned
them as to what they were doing he was fired upon by Makhan and Gokula E
and other accused showered lathi blows on him and on Vijay Kumar.

On the plea of right of private defence advanced by the accused we may
refer to the provisions of Sections 97 and 103 !PC. Section 97 deals with right
of private defence of the body and of property and Section I 03 prescribes
when the right of private defence of property extends to causing death. These F
two sections are as under :-

J "97. Right of private defence of the body and of property.- Every
person has a right, subject to the restrictions contained in Section 99,
to defend-
G
First - His own body, and the body of any other person, against
any offence affecting the human body;

Secondly - The property, whether movable or immovable, of himself
or of any other person, against any act which is an offence falling
under the definition of theft, robbery mischief or criminal trespass, or H
I 136 SUPREME COURT REPORTS [1998] 3 S.C.R.

A which is an attempt to commit theft, robbery, mischief or criminal
trespass."

"103.- When the right of private defence of property extends to
causing death.- The right of private defence of property extends,
under the restrictions mentioned in Section 99, to the voluntary causing
B of death or of any other harm to the wrong-doer, if the offence, the
committing of which, or the attempting to commit which, occasions
the exercise of the right, be an offence of any of the descriptions
hereinafter enumerated, namely:-

First.- Robbery;
c
Secondly.- House-breaking by night;

Thirdly.- Mischief by fire committed on any building, tent or
vessel, which building, tent or vessel is used as a human dwelling, or
as a place for the custody of property;
D
Fourthly.- Theft,_ mischief or house-trespass, under such
circumstances as may reasonably cause apprehension that death or
grievous hurt will be the consequence, if such right of private defence
is not exercised."

E Though there would be right of private defence under Section 97 !PC
when offence of criminal trespass or attempting criminal trespass is committed,
under Section 103 !PC it is only in the case of house trespass that right of
private defence can extend to causing death. That is not he case here. On the
assumption that it was the accused party which was in possession of the land
the complainant party could not have said to have committed or attempted
F to have committed offence of criminal trespass. Both Shiv Ram and Vijay
Kumar were unarmed. High Court has not reached any finding on the (
assumption, which we are drawing, if the complainant party could be said to \
have committed or even attempted to have committed criminal trespass. Section
441 IPC defines criminal trespass and is as under:-
G "441. Criminal trespass.- Whoever enters into or upon property in the
possession of another with intent to commit an offence or to intimidate,
insu It or annoy any person in possession of such property, or having
lawfully entered into or upon such property, unlawfully remains there
with intent thereby to intimidate, insult or annoy any such person, or
H with intent to commit an offence, is said to commit "criminal trespass".
STA TE OF RAJASTHAN v. RAM BHAROSJ [D.P. WADHW A. J.] J 137

There is nothing to show that Shiv Ram and Vijay Kumar entered upon A
the -land in question with the intent to commit an offence or to intimidate,
insult or annoy the accused party.

It was then submitted before us that in any case it could a case of
culpable homicide and not murder falling under Section 300 !PC. Explanation
(2) of Section 300 is as under:- B

- ...
"Explanation 2.- Culpable homicide is not murder ifthe offender, in the
exercise in good faith of the right of private defence of person or
property, exceeds the power given to him by law and causes the death
of the person against whom he is exercising such right of defence
without premeditation, and without any intention of doing more harm
c
than is necessary for the purpose of such defence."

In our opinion this would not apply as form the findings on record it
is clear that it was not a case where the accused were exercising right of
' private defence without premeditation, and without any intention of doing
D
more harm than was necessary for the purpose of self-defence. The accused
were there fully armed with premeditation to cause death and it could not be
... said that they did not have the intention of doing more harm than was
necessary for the purpose of private defence. Clearly use of deadly force was
not justified merely to expel Shiv Ram and Vijay Kumar, alleged trespassers.
It was nowhere the case of the defence that there was no other way of getting E
them out of the land. The occasion certainly did not warrant any action of
self-defence.

In the case of Rajinder v. State ofHaryana, [1995] 5 SCC 187 where one

.. ...
of us (Mukherjee, J.) was a party this Court was considering the issue ofright
of private defence available to accused under the provisions of the Indian F
Penal Code. The Court said that the fascicle of Sections 96 to 106 IPC codify
the entire law relating to right of private defence of person and property
including the extent of and the limitation to exercise of such right. In that case
after examining the record the Court was of the view that the only legitimate
and reasonable inference that can be drawn is that the accused party had G
gone to the disputed land with a determination to cultivate it and, for that
purpose, fully prepared to thwart any attempt made by complainant party to
disturb such cultivation and meet any eventuality. After referring to the
provisions of various Sections aforementioned, this Court observed as under:-

"It is evident from the above provision that unauthorised entry H
1138 SUPREME COURT REPORTS [1998] 3 S.C.R.

A into or upon property in the possession of another or unlawfully
remaining there after lawful entry can answer the definition of criminal
trespass it, and only if, such entry or unlawful remaining is with the
intent to commit an offence or to intimidate, insult or annoy the
person in possession of the property. In other words, unless any of
the intentions referred in Section 441 is proved no offence of criminal
B
trespass can be said to have been committed. Needless to say, such
an intention has to be gathered from the facts and circumstances of
a given case. Judged in the light of the above principles it cannot be ~
said that the complainant party committed the offence of "criminal
trespass" for they had unauthorisedly entered into the disputed land,
c which was in possession of the accused party, only to persuade the
latter to withdraw thereupon and not with any intention to commit any
offence or to insult, intimidate or annoy them. Indeed there is not an
iota of material on record to infer any such intention. That necessarily
means that the accused party had no right of private defence to
D property entitling them to launch the murderous attack. On the contrary,
such murderous attack not only gave the complainant party the right
to strike back in self-defence but disentitled the accused to even claim
the right to private defence of person.

We hasten to add, that even if we had found that the complainant
E party had criminally trespassed into the land entitling the accused
party to exercise their right of private defence we would not have
been justified in disturbing the convictions under Section 302 read
with Section 149 IPC, for Section 104 IPC expressly provides that right
of private defence against "criminal trespass" does not extend to the
F voluntary causing of death and Exception 2 to Section 300 !PC has
no manner of application here as the attack by the accused party was
premeditated and with an intention of doing more harm than was
necessary for the purpose of private defence, which is evident from '
the injuries sustained by the three deceased, both regarding severity
and number as compared to those received by the four accused
G
persons. However, in that case we might have persuaded ourselves
to set aside the convictions for the minor offences only, but then that
would have been, needless to say, a poor solace to the appellants."

State of law is explicit. In this view of the matter the High Court was
H not right in its conclusion. The judgment ~f the High Court cannot be
STATE OF RAJASTHAN v. RAM BHAROSI [D.P. WADHWA, J.) 1139

sustained either in law or on the facts of the case. We, therefore, allow the A
Criminal Appeal filed by the State, set aside the judgment of the High Court
and restore that of the trail court. The result is that Makhan and Gokula are
convicted under Section 302 !PC and each of them sentenced to undergo
imprisonment for life and a fine of Rs.500 and in default of payment of fine
to undergo further rigorous imprisonment for six months. Natthi, Karan Singh B
and Ram Bharosi are convicted for offence under Sections 302/149 !PC and
are sentenced to imprisonment for life and a fine of Rs.500 each and in default
of payment of fine .to undergo further rigorous imprisonment for six months.
All the accused respondents, namely, Gokula, Makhan, Natthi, Karan Singh
and Ram Bharosi are further convicted for offences under Sections 148, 447
and 323 !PC and sentenced to undergo rigorous imprisonment for one year, C
six months and six months respectively. The substantive sentences shall run
concurrently. Bail bonds of Makhan and Gokula are cancelled. They shall be
taken into custody forthwith. All the five accused-respondents shall undergo ·
their respective sentences. The appeal, filed by Makhan and Gokula is
dismissed.
D
V.S.S. Appeal allowed.