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Right of self or private defence extends to protection of property

Cause Title : Nagesh vs State Of Karnataka, Criminal Revision Petition No.580/2013, Karnataka High Court

Date of Judgment/Order : 29th Day Of October, 2022

Corum : S. Rachaiah, J.

Citied: 

Background

The appellants were accused before the trial court as well as the appellate court. Both courts have found them guilty of having accused severe injury to several people who were ploughing on a disputed field using the ploughing equipment being used by the injured. However, the trial court had also noted that by virtue of a court order, the father of the accused who is also the uncle/granduncle of the injured, was the owner of the field and therefore the accused were not trespassers.

Judgment

The High court observed that both courts have failed to appreciate the evidence and the relevant law. Once it is agreed that the accused are not trespassers, rather the injured were cultivating on land which did not belong to them, Section 96 and 97 of the Indian Penal Code comes into play.

The Trial Court and the Appellate Court have failed to consider 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. 

Section 96 of IPC which provides that nothing is an offence which is done in exercise of right of private defence. The Section 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. 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.

Section 97 which deals with subject matter of right of private defence. The plea of right comprises the body or property of the person exercising the right; or of any other person; and 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 raise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him.

In this matter, the father of the accused persons, is the owner of the land where the alleged incident had taken place and it is also admitted that, the injured were ploughing the disputed land which belongs to accused persons. The accused persons had not gone to the disputed land with deadly weapons in their hand. They went to the spot unarmed and tried to protect the land. Therefore, as per the High Court, the accused have proved that, in order to protect the land they exercised right of self defence.



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