Fazal Ali, J.
1. This appeal by special leave is directed against the judgment of the High Court of Rajasthan dated April 25, 1972. By virtue of the judgment under appeal, the convictions of the 18 appellants were upheld with certain modification which may be catalogued as follows :
Name of appellants Conviction under Term of
1. Hathi Singh } 325/149 IPC Two years' R.I.
2. Gangaram } and a fine of Rs. 200,
3. Qasimkhan } in default, further
4. Noranga } R.I. for 2 months.
5. Mubarakhan } 147 IPC 2 years' R.I.
6. Hanuman }
7. Sadulla } 425 IPC 2 years' R.I.
8. Kesar Singh }
9. Kesharkhan }
10. Bagaram }
11. Lal Singh }
12. Nabbukhan }
13. Ramuram }
14. Narain }
s/o Ganesh }
15. Bhura }
16. Chhotu and }
17. Narain }
s/o Arjun }
18. Kokura 325/149 IPC Two years' R.I. and a
fine of Rs. 200, in
default further R.I.
for two months.
427 IPC 2 years' R.I.
447 IPC 3 months' R.I.
435 IPC 2 years' R.I.
Kesar Singh }
Kesharkhan } 323 IPC 3 years' R.I.
Ramuram and }
Hathi Singh 323 IPC 2 years' R.I.
Narain s/o 325 IPC 2 years' R.I.
2. The occurrence took place at about 6 p.m. on December 15, 1968 at village Kalyanapura when the complainant and his party went to the plot situated at Khasra No. 558 and 559 and after constructing water channel from the well which is situated in Khasra No. 559, they also enclosed the entire plot by thorny bushes so as to close any possible access to the well. At this stage the appellants variously armed arrived at the scene of the occurrence and in the course of altercation are alleged to have assaulted Sugna, Ballu, Narain, Choona, Hanuman, Rekha and Roopa. Out of these persons, Roopa died as a result of the injuries received and PW 16 Narain and PW 18 Chimnaram received grievous injuries in the nature of fracture of the hand and fracture of the finger respectively. FIR was lodged at 1 a.m. at police station Fatehpur. After usual investigation, a chargesheet was submitted against the appellants who were tried and convicted by the Sessions Judge, Sikar as mentioned in the judgment. The High Court in appeal acquitted some of the accused and modified the conviction of others and has maintained the conviction and sentences of the appellants as described above. The facts of the case have been detailed in the judgment of the courts below and it is not necessary for us to repeat the same all over again.
3. Appearing for the appellants. Mr. Jain has raised a short point before us and has attacked the findings arrived at by the High Court in respect of the charges under Sections 149 and 147 and 447 of the IPC and has contended that these charges must necessarily fail because the appellants were not inspired by any unlawful object but were seeking to assert their legal customary right which they undoubtedly possessed. It is also contended that the appellants had undergone substantial part of the sentence of imprisonment and hence their sentences may be reduced. We are of the opinion that the contention raised by learned for the appellants is well-founded and must prevail. The High Court while considering the evidence led by the prosecution came to the following findings :
(1) The accused had the right to take water from the well for themselves and for their cattle. The village cattle also used to sit on the land in case there was no crop on it. The villagers also repaired the well in the year 1962. This well is the only well which provides drinking water to the villagers.
(2) On the date of the incident during daytime, that is sometime before the actual incident took place, the complainant-party had prepared water channels for irrigating the crop and had put thorn-fencing on the land surrounding the well closing all pathways leading to the well.
(3) On the date of the incident, they had prepared water channels to irrigate the crop. The only right which the appellants had was to draw water from the well for drinking purposes. It is true that the complainant-party on the date of the incident closed access to the well by putting thorn-fencing on the land surrounding the well and thereby obstructed the right of the appellants to draw water from the well.
4. From the these findings, therefore, it is manifest that the appellants had the undoubted customary right of drawing water from the well and also to give water to the cattle by taking them to the plot. In these circumstances, therefore, the prosecution party had no right at all to enclose the entire land by thorny bushes and close the access to the well so as to infringes the customary right of the appellants. This being the position, when the appellants went variously armed, they did not commit any offence of criminal trespass because they had only asserted their legal right to draw water from the well which has been the subject-matter of the offence of mischief committed by the prosecution-party who had enclosed the entire field and closed access to the well as found by the High Court itself.
5. The charges under Sections 147 and 149 proceeded on the basis that the appellants had committed trespass in pursuance of that assault. In view of what has been observed, there is no question of committing trespass because the appellants were acting under bona fide claim of right. The charge which was a composite one fails, as a result of this finding given by us. Moreover, as the main object of the appellant was to demolish the obstruction caused by the complainant on the pathway leading to the well, they cannot be said to be inspired by any unlawful object. If, however, in achieving this object some of the accused assaulted the members of the prosecution party they would be guilty of the individual overt acts committed by them including those of Sections 323, 325 and 435. Even so far as charges under Section 435 are concerned, it is proved only in respect of utensils and agricultural implements said to have been burnt by Kakura and cannot apply so far as the thorny bushes burnt by the accused are concerned because, in such a case they had not set fire to the bushes to cause wrongful loss to the complainant but in order to remove an impediment which infringed their legal right and which could only be done by burning them out. In this view of the matter, we are of the opinion that the convictions as also the sentences passed against the appellants concerned under Sections 147, 325/149 and 147 and 435/149 fail. As regards the individual offences, there is no doubt that the appellants concerned were rightly convicted of these offences. This was not seriously disputed by counsel for the appellants who has pressed the appeal so far as the individual convictions are concerned only on the question of sentence. It appears that the appellants namely Noranga, Hanuman, Kesar Singh, Kesharkhan Nabbukhan, Ramuram and Chhotu were convicted under Section 323 and sentenced to three months' R.I. and Hathi Singh was convicted under Section 323 and sentenced to two months' R.I. and Bhuraram and Narain s/o Arjun were convicted under Section 325 IPC and were sentenced to two years' R.I. Nobody has been convicted by the trial Court for having caused individual assault on the deceased Roopa.
6. So far as Narain PW 16 is concerned, he was assaulted by Narain s/o Arjun and the injury is fracture of the hand. PW 18 Chimnaram was assaulted by Bhura and received fracture of the finger. These were the only individual assaults proved against the aforesaid appellants. Learned Counsel for the appellants has filed before us a consolidated chart of the period of imprisonment which has been undergone by the various appellants. Miss Rao appearing for the State conceded that the statements made in the chart is correct. It appears that so far as other appellants viz. Ramuram and Bhura are concerned, they have already undergone the sentences imposed against all of them, and their sentences are therefore reduced to the period already undergone. So far as Narain son of Arjun is concerned, he has undergone one year and eight months and this sentence in our opinion is sufficient to meet the ends of justice. We will, therefore, reduce the sentence of Narain under Section 325 from two years to the period already undergone. Similarly, Bhura has served about six and half months and we think it is not necessary to send Bhura back to the jail. In the circumstances his sentence is reduced to the period already undergone. They were on bail and will now be discharged from their bail bonds. All the charges under Section 147 and 149 have failed. The appeal of Gangaram, Qasimkhan Mubarakkhan, Sadullah, Bagaram, Lal Singh, Nabbukhan and Narain s/o Ganesh is allowed and they are acquitted of the charges framed against them. The appeal of the remaining appellants is dismissed with the modification indicated above.
7. Kakura is said to have burnt the bushes as also the other articles like agricultural implements and utensils. The charge under Section 435 will not apply to him so far as the burning of bushes is concerned. So far as the burning of agricultural implements and utensils is concerned, he must be held guilty under Section 435. He has also done about seven months and that is sufficient to meet the ends of justice. We would, therefore, reduce his sentence to the period already undergone. Subject to this modification, the appeal of Kakura is disposed of.