A.N. Grover, J.
1. This is an appeal by special leave from a judgment of the Allahabad High Court. Originally 13 persons were tried under Sections 302, 324 and 323 read with Section 149 of the Indian Penal Code. Some of them were further charged under Section 148 and some under Section 147, Indian Penal Code. Seven were acquitted by the learned Sessions Judge. Six of them, namely, the present appellants were convicted under Section 304, Part I read with Section 149, Indian Penal Code and each was sentenced to five years' rigorous imprisonment. Braham Singh, Randhir and Tri were also convicted under Section 148, Indian Penal Code, each having been sentenced to one years rigorous imprisonment. The remaining three, Mohinder, Khilari and Rajpal were convicted under Section 147 for which a sentence of one year's rigorous imprisonment, was imposed. The sentences were ordered to run concurrently. Two against the acquittal of 7 persons and the other, by the six appellants. Both the appeals were dismissed by the High Court.
2. According to the High Court plot No. 854 which formed part of Chak No. 12 in village Kishanpur in Meerut district had a long and chequered history. There had been a good deal of litigation in respect of it extending over two decades. It is unnecessary to give the details but it would appear that Narain Singh had been in continuous possession of that plot since the year 1934 but the rightful holders of title, according to the decision of the courts, were the family of Atal Singh, Atal Singh executed a saledecd in 1954 in favour of the appellants Braham Singh and Tri Pal in respect of some properties including the aforesaid plot and it were the appellants who were in possession of the said plot at the time of the incident which took place on April 3, 1965 at about 7 a.m. Narain Singh's nephew Ishar Singh sustained a large number of injuries and died later on. Narain Singh's son Jaipal P.W. 1 and brother Ram Saroop P.W. 2 also sustained injuries. Out of the appellants Braham Singh had five injuries two of which had been caused by some sharp-edged weapon.
3. The case of the prosecution was that Narain Singh and his two sons Jaipal and Narendra, his brother Ram Swarup and his nephew Ishwar Singh were cutting wheat crop from plot No. 854 on the material date when 13 accused accompaneied by numerous other persons came to the spot. Out of them Randhir Singh was armed with a Tabal. Others had Balams and Lathis with the exception of two who did not have any weapons. They shouted that Narain Singh and others be killed. Narain Singh immediately left the place and sent a telegram to the Senior Superintendent of police, Meerut reporting the trouble. It was alleged that Manphool and Sukhpal instigated other persons to attack Ishwar Singh. Randhir gave the first blow with his Tabal to Ishwar Singh who was then belaboured by other ten persons who were armed with various weapons mentioned before. Ram Swarup was assaulted by Yashpal, Khilari, Mahendra and Rajpal, while Jaipal was assaulted by Khilari, Mahendra and Rajpal. Ten of the accused persons denied their presence at the spot. The other three, namely, Braham Singh s/o Manphool, Tri Pal and Manphool admitted their presence and toop up the position that Braham Singh was in possession of the plot and the wheat crop had been sown by him. When he and his brother were cutting the wheat crop along with some labourers Narain Singh and others came there and attacked them causing injuries with Balams and lathis. On seeing this the father who was working in an adjoining field rushed and gave a 'palkati' blow over the head of Ishwar Singh. Tri Pal also wielded a lathi in self-defence. After the palkati blow had been given to Ishwar Singh there was an exchange of blows.
4. The Sessions Judge was of the view that since Braham Singh and the members of his family were in possession of plot No. 854 they had acted in exercise of right of defence of property. Consequently he acquitted those persons who had caused minor injuries to Jaipal and Ram Swarup but he held that the right of private defence had been exceeded in respect of Ishwar Singh who had been inflected such injuries that he ultimately died. The High Court found that even after possession had been taken of the plot by Braham Singh, Narain Singh was still creating trouble and was not allowing him to remain in peaceful possession and that Narain Singh made a bid to take possession by cutting wheat crop on the morning of April 3, 1965 when the incident took place. Looking at the nature and number of injuries it was held that the right of private defence of property had been exceeded by the appellants. This is what the High Court observed towards the conclusion of its judgment:
From the nature of the injuries received by Braham Singh it would appear that all of them were of a minor nature. That being so, the accused would have been justified in causing only such injuries to the other side as were sufficient to drive them away from their field. The learned Sessions Judge, therefore, rightly acquitted those accused who had caused injuries to Ram Swarup and Jaipal. But so far as the injuries of Ishwar Singh which ultimatcd in his death were concerned, the learned Sessions Judge came to the conclusion that those accused who had caused the injuries to Ishwar Singh had exceeded in the exercise of right of private defence of property.
It seems to us that the approach of the courts below has not been on right lines. It hat been abundantly proved and so found that the possession of the plot was with Braham Singh appellant and that he had sown wheat crop there. Narain Singh who was a retired police constable had fought a long drawn battle in the courts and before the Consolidation authorities over the title and possession of the plot. He had never reconciled himself to the decisions given by the courts and the Consolidation authorities and had been making constant attempts to take forcible possession of the plot. Even according to the case of the prosecution there were at least five persons in the party of Narain Singh when the incident took place. These persons were armed with lathal weapons inasmuch as Braham Singh also received injuries with a sharap edged as also with blunt weapons. The evidence of the prosecution witnesses was highly interested and was of partial nature. It had necessarily to be carefully scrutinised. The circumstances do not conclusively show that the appellants and their companions who were stated to be in large number came and attacked Narain Singh and his party when the later were cutting the wheat crop from the plot or were trying to take forcible possession of it. If that had been the case Narain Singh would never have been allowed to go and sent a telegram to the authorities concerned. Bham Singh have evidence on oath as D.W. 1. After mentioning the long standing dispute and the civil and criminal litigation had been going on between him and Narain Singh he stated that on March 31, 1965 his brother Tri Pal had gone to cut the wheat crop. Narain Singh and others came: there armed with Balems and Bhalas. The police then started proceedings under Sections 107 and 117 Criminal Procedure Code. On April 3, 1965 when he and brother Tripal and labourers were cutting the. crop from that plot Natain Singh and his companions came armed with Ballams, lathis etc. They were using abusive language and were threatening to inflict harm. Ishwar Singh struck him with a Bhala upon which his father, who was in the adjoining field, came running and gave a blow on the head of Ishwar Singh. Thereupon lathis were plied in self defence. It is significant that the prosecution witnesses had completely suppressed the mention of any injuries to Braham Singh appellant. The probabilities are more in favour of Narain Singh and his party being either in forcible and unlawful possession of the plot or going to take its forcible possession. In that situation the appellants were entitled to exercise the right of defence of person and property. The injuries inflicted on Ishwar Singh though large in number consisted of numerous abrasions two lacerations and two incised, wounds According to the doctor death was due to hemorrhage by incised wounds on the body. In an incident of the nature which took place it is not always easy to weigh in scales, as it were, how much harm or damage should be inflicted. In the absence of any explanation the part of the prosecution as to how the injuries came to be sustained by Braham Singh it would be legitimate to conclude not only from his statement but also from all the other circumstances of the case that the party of the complainant was determined to take forcible possession of the plot and cut the wheat crop and was prepared to inflict bodily injuries on those who belonged to the party of the appellants and actually indicted injuries on Braham Singh. It could not be said that there was time for the appellants to have recourse to the protection of public authorities within the meaning of Section 99 of the Indian Penal Code. The appellants inflicted injuries on Ishwar Singh in exercise of right of private defence of person and property. Their conviction could not, therefore, be sustained.
The appeal is allowed and the conviction is set aside.