LexMAGUNI CHARAN PRADHAN versus STATE OF ORISSA
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MAGUNI CHARAN PRADHAN
v.
STATE OF ORISSA
APRIL 4, 1991
[A.M. AHMADI, V. RAMASWAMIANDK. RAMASWAMY,JJ.]
Penal Code, 1860-Sections 97, 103, 105-'Right of private
defence of property-Trespass of land-Exercise of right by owner
against trespasser-Scope of.
·
Penal Code, 1860-Section 302-Murder-Conviction under-.
A
B
Plea of right of private defence of property-Causing death by giving
blows on head of the unarmed trespasser in sitting position-Amounts ·· C
to abuse of right of private defence and commission of murder.
The appellant was in possession of the field under a sale deed
executed by his mother in his favour till the day prior to the incident.
When he went to the field, he saw the deceased and his companions
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ploughing the field. He asked them to unyoke the bullocks. On refusal
he assaulted the unarmed deceased with a stick on the head while he was
sitting on the ridge, which resulted in his death.
The Trial Court acquitted the appellant giving him the benefit of
the right of private defence to person and property. The High Court in
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appeal, reversed the finding of the Trial Court holding that he had no
such right and convicted the appellant under Section 302 and sentenced
him to rigorous imprisonment for life.
Dismissing the appellants' appeal, this Court,
HELD: I. A rightful owner in peaceful possession of his land is
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entitled to defend his property against any person or persons who
threaten to disposses him. The law does not expect any cowardice on his
part when there is real and imminent danger to his property from
outside sources. Thus a rightful owner is entitled to throw out, by using
such force as would in the circumstances of the case appear to be
reasonably necessary, any person who tries to invade his right to peace-
G
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ful possession of his property. But if the trespasser has settled in the
possession of the property, the course which the rightful person must
01dopt is to recover possession in accordance with law and not by force.
In such a case the trespasser would be entitled to defend bis possession
even against a rightful owner if the latter tries to evict him by use of
force. [ 196B-C]
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191
192
SUPREME COURT REPORTS
I 1991] 2 S.C.R.
A
2. The appellant had a right to confront the prosecution party
which was guilty of criminal trespass and could have used reasonable
force to clear the encroachment, but he could not use it as a pretext or
excuse to settle the old dispute regarding the title to the land. He clearly
abused the right and in the guise of protecting his property he attacked
B an unarmed person who was sitting at distance by inflicting heavy blows
on the vital part of his body, namely, the skull, causing multiple
~ fractures. The deceased had not offered any resistance, he was unarmed
and was in sitting posture when the blows were hit giving him no
chance even to run away. The appellant abused the right arising out
of the trespass to kill the deceased. This was a case of intentional
murder and not something done in the exercise of right to protect the
C
property. I 197B-D]
3. In the instant case, the appellant inflicted more than one blow
on the deceased on seeing him on his land. There was no grave or
sudden provocation as urged hy counsel for the appellant. The medical
D
evidence clearly shows that the blows were vicious and on the head
resulting in the fractures of the parietal hone. In such circumstances,
the case cannot fall either under Section 304 Part Ior part II, IPC. The
appellant will surrender to his bail and serve out the remaining part of
his sentence. I 197E-G]
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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 814 of 1979.
From the Judgment and Order dated 28.6.79 of the Orissa High
Court in Government Appeal No. 26 of 1976
Amlan Ghosh for the Appellant.
R.K. Mehta for the Respondent.
The Judgment of the Court was delivered by
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AHMADI, J. The appellant was tried for the murder of Bhikari
·Pradhan. The Trial Court acquitted him giving him the benefit of the
right of private defence to person and property. The High Court in
appeal reversed the Trial Court holding that he had no such right. The
High Court, therefore, convicted him under Section 302 and directed
him to suffer rigorous imprisonment for life. It is against the said order
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of conviction and sentence that the present appeal is preferred.
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M.C. PRADHAN v. STATE OF ORISSA [AHMADI, J.J
193
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