G.L. Chopra, J.
1. The four appellants arc convicted under Sections 325, 324 and 323, read with Section 34, Indian Penal Code, and sentenced to various terms of rigorcfus imprisonment by the Additional Sesnsjons Judge, Hosbiarpur. This is an appeal preferred by them.
2. Hazara Singh appellant is the brother of Joginder Singh the injured. Resbam Singh, another injured complainant is the son of Joginder Singh. The other three appellants are brothers, they are collaterals of Hazara Singh. It appears that somewhere in the year 1947 Hazara Singh appellant who is issueless made a gift of his property in favour of Resham Singh. Soon after, he repudiated the gift and the mutation in respect of it was rejected on 80-4-1950. Resham Singh and his father Jogindar Singh claimed that, in spite of the gift having been repudiated and mutation refused, they continued in possession of the land including Khasra No. 470 to which the present dispute relates.
The prosecution case is that the complainants had sown bajra crop in field No, 470 in Kharif 1957 and that in the early morning of 11-9-1957, the four appellants started ploughing the land and uprooting the crop. This gave rise to a fight between the parties which resulted in injuries to Jogindar Singh and Resham Singh on the one side and Hazara Singh and Ujagar Singh appellants on the other. Number of injuries were caused to each of them. The parties approached the police and lodged their respective reports. The one from the side of the complainants was lodged at 7-40 A.M. and the other a little later on 11-9-1957. Both the parties were sent up for trial under Section 307, Indian Penal Code. While the accused in the cross-case were acquitted, the present resulted in their conviction as stated already.
3. The fight between the parties and the result thereof stand admitted; each of them claimed the right of private defence of property as well as person. The learned trial Judge was of opinion that the entire land, ever since the gift till Kharif 1957, was in possession of Hazara Singh appellant, only a couple of months prior to the occurrence Resham Singh had sown barja crop in field No. 470. and that the appellants had no right to uproot the crop and plough the field as they did on 11-9-1957. It was consequently held :
'In this state of affairs, even if Resham Singh P.W. on seeing the accused ploughing the land went away to his house and picked up a dang and brought his father Jogindar Singh, armed with atakwa and stopped the accused from further ploughing the land and caused injuries to them to turn them out, he was fully justified to do that according to law.'
4. On behalf of the appellants, it is submitted that the prosecution failed to establish that it was Resham Singh complainant who had sown the bajra crop in field No. 470 or that he was in actual possession of the field in September 1957, and therefore, the complainant-party ought to be regarded as the aggressor. It is further contended that even if that were so, the possession of Resham Singh of the particular field was that of a trespasser which could not inure against the true owner, the latter had the right to oust him even by using the necessary force. As regards possession prior to Kharif 1957, there can be no doubt.
Exhibit D H is a copy of the mutation entry, which was refused on 30-4-1950. Exhibits PS, DK and DJ copies of the Khasra Girdwaries. reveal that the entire land of Hazara Singh, including field No, 170. was in his possession from 1954 to Rabi 1957. Resham Singh admits that he did not ever pay the land revenue. Girdawari for Kharif 1957 with respect to field No. 470 had not vet been entered, it was entered by the Patwari in the name of Resham Singh on 26-10-1957, a month and a half after the incident. The entry was subsequently corrected as directed by the Revenue authorities and made in the name of Bhagat Singh appellant as tenant of Hazara Singh.
The Revenue records thus do not support the complainant's assertion that he had cultivated field No. 470 and sown bajra crop in Kharif 1957. For this part of their case, the prosecution relies on the oral evidence of the two complainants, Mst. Banti. mother of Resham Singh, and Chanan Singh, and the circumstances of the case. Harnam Singh, one of the alleged eye-witnesses, also supported them on the point. According to the complainants, Resham Singh was all along in joint possession of the entire land of Hazara Singh ever since the gift in his favour. This, as already noticed, is belied bv the Revenue records and also by Jaswant Singh (P.W.).
5. The fact that Bajra crop was standing in the field and that the same was being uprooted by the appellants was admitted by Hazara Singh appellant in his statement under Section 342, Criminal Procedure Code. He, however, claimed that the crop was sown by him and they were uprooting the crops because it was Kharaba. This part of his statement is not corroborated by any evidence on the record. On the other hand, it stands contradicted by the report he lodged with the police soon after the incident on 11-9-1957. There, he stated that Resham Singh had taken forcible possession of the land and sown bajra therein some two months earlier and they wanted to oust him because the land was, a month thereafter, leased out to Bhagat Singh appellant.
The appellants would not have destroyed the crop if that was sown by Hazara Singh and the latter would not have leased out the land to Bhagat Singh after he had himself cultivated it. There is yet another circumstance which supports the prosecution version that the crop belonged to Resham Singh. It appears that at the sowing time of Kharif 1957 Resham Singh took possession of field No. 470 and this gave rise to a dispute between the parties. Resham Singh and his father Jopindar Singh on the one side and Hazara Singh on the other were sent up by the police for being bound down under Section 107, Criminal Procedure Code. The cross-cases were pending at the time of the present incident and were fixed for hearing on 12-9-1957.
If the crop belonged to Hazara Singh and he himself wanted to uproot it he would not have apprehended any trouble and would not have gone to the field for the purpose on 11-9-1957, heavily armed and accompanied by the other appellants, as admitted by him. For all these reasons, I am in agreement with the learned trial Judge that the land was in possession of Resham Singh on 11:9-1957, and that the crop standing therein belonged to him. It is also clear that the land was taken possession of by Resham Singh somewhere in the month of July 1957 when he cultivated it and sowed bajra crop in it.
6. It has then to be seen whether the appellants were justified in forcibly ousting Resham Singh, even though he was a trespasser, and destroying his crop in September, 1957, and whether, if in so doing resistance was offered they were entitled to the right of private defence of property or person. In my view the answer to the question ought to be in the negative. When once Resham Singh had taken possession of, cultivated and sown bajra in the field and had remained in possession of it for a couple of months, Hazara Singh even though he was the owner was not entitled to take the law into his own hands and use force in ousting the trespasser. He had had ample time to have recourse to the protection of public authorities. He was himself liable for committing criminal trespass and mischief by taking forcible possession of the land and uprooting the crop and would not therefore be entitled to the right of private defence of property.
7. Right of private defence docs not exist in cases in which there is time to have recourse to the protection of public authorities and therefore a person, when dispossessed of land, can claim no right of defence of property as against the com-plainant assuming him to be a trespasser who had just entered the land--Phula Singh v. Emperor, AIR 1927 Lah 705. In Bhartu v. State, AIR 1954-All 35, it was held that even if a person is a trespasser and has wrongfully cultivated a certain portion of a field of which he was bound in law to deliver possession to another person, the latter person had no right to take law into his own hands and beat the former in order to dispossess him from the field and that if the latter person is an aggressor, there is no doubt that the former, per-(sic) though a trespasser, has a right, of self-defence. Hazara Singh and his party would not be entitled to the right of personal defence if they used force in order to meet the resistance offered to their own unlawful acts.
8. I do not see force in Mr. Sibal's contention that it were the complainants who wanted and attempted to oust the appellants from the land possession of which was taken by them in the morning that day. It was soon after the appellants had entered upon the land and started uprooting the crops that the complainants arrived and asked the appellants to quit and stop doing any more mischief. In the case of the complainants it cannot be said that there .was time to have recourse to the protection of the public authorities. Their crop was being uprooted and this they had the right to prevent.
9. In view of the equally serious injuries received by the appellants, I think they deserve some leniency in the matter of sentence. The sentence under Section 325/34. Indian Penal Code, is reduced to six months and those under Sections 324 and 323, read with Section 34, Indian Penal Code, to three months' rigorous imprisonment in case of each of the appellants. The sentences shall run concurrently, The appellants shall surrender to their bail bonds to undergo the remaining sentence.