N.M. Miabhoy, J.
1. This is an appeal by the State against four respondents. These respondents were prosecuted for an offence under Section 447, Indian Penal Code. The learned Judicial Magistrate. First Class. Devgad-Baria, District Panch-Mahals, before whom these respondents were prosecuted, convicted respondent No. 1 Bharatsing Odharsing, (hereafter called the 'respondent' simpliciter), for the offence under Section 447, Indian Penal Code, and acquitted the rest of that offence. The present appeal has been directed against the other three respondents against the order of acquittal in respect of this offence under Section 447, Indian Penal Code. However, the learned Government Pleader, very fairly conceded that he could not press the appeal against these respondents Nos. 2, 3 and 4 and consequently it is not necessary to discuss the case against these three respondents. Respondent Bharatsing was also charged for the offence under Section 326, Indian Penal Code, on the allegation that, whilst committing criminal trespass on 27th June 1958 at about 11-00 A.M. in the village Paroli in survey number 100, he had voluntarily caused grievous hurt to the complainant Vaja Ratna with a 'Dharia'. The learned Magistrate came to the conclusion that respondent had caused grievous hurt to complainant Vaja Rama, but he acquitted him of the offence under Section 326, Indian Penal Code, on a finding that the respondent Bharatsing had a right of private defence and that he had caused grievous hurt in the exercise of that right. The State has challenged this part of the acquittal order against respondent Bharatsing. Having regard to the concession made by the learned Government Pleader regarding the cast against respondents Nos. 2, 3 and 4, the only question which survives for consideration in the present appeal is, whether the learned Magistrate was right in holding that respondent Bharatsing had the right of private defence when he caused grivevous hurt to complainant Vaja Ratna. Mr. Barot, the Learned Counsel for the respondent Bharatsing, however challenges the finding of the learned Magistrate regarding the possession of the field in question and the allegation of Criminal trespass. The learned Government Pleader contended that respondent Bharatsing had no right to challenge this finding, because respondent had not preferred an appeal against the conviction recorded by the learned Magistrate and the order of conviction under Section 447, Indian Penal Code, had become final. In our judgment the mere fact that the order of conviction under Section 447 Indian Penal Code had become final as against respondent Bharatsing does not preclude him from putting forward a case which would be inconsistent with the finding which ultimately led to the conviction under Section 447 Indian Penal Code In challenging these findings respondent does not challenge the conviction under Section 447 Indian Penal Code. The conviction under that section would remain intact but in so far as the State now presses the case against respondent under Section 326 Indian Penal Code it is open to the respondent to show that in fact he was in possession of the field in question and that when he caused grievous hurt he had the right of private defence. Under the circumstances we have come to the conclusion that the findings of the learned Magistrate relating to possession of the survey number and criminal trespass do require to be considered in the present appeal.
2. It is common ground that survey number 100 belongs to one Sada and that till 1956-57 complainant Vaja Ratna was a protected tenant thereof and was in possession of the same. It is also common ground that on 5-10-1956 Sada gave a notice to the complainant Vaja Ratna by which she purported to terminate the permanent tenancy and called upon the complainant Vaja Ratna to deliver possession of the same on or before 31-3-1957. There is a controversy between the prosecution and the defence as to whether in response to this notice complainant Vaja Ratna did or did not deliver possession to Bai Sada The prosecution case is that possession was not delivered inspite of the notice. According to the defence possession was delivered to Bai Sada a few days before the Akhatrij of 1957 and that after that delivery Sada gave the land for cultivation to the respondent Bharatsing. The learned Magistrate has accepted the prosecution version and rejected the defence version. We are in agreement with this finding of the learned Magistrate. Several witnesses depose that complainant Vaja continued to be in possession of the field even in the year 1957-58 and that it was he who had sown millet and groundnut in the monsoon of 1958. Besides the complainant the persons who depose about this possession are (1) Girdhar Khatu (2) Navalsing Anopsing (3) Shana Bapu (4) Hema Koya and (5) Vala Jetha. It may not be quite safe to rely upon the evidence of the first four witnesses on the question of possession. The first two witnesses also pose as eye-witnesses in the case. According to the defence version these two persons had also participated in certain crimes which took place on that day against respondent Bharatsing and his wife Umed. The other two witnesses Shana Bapu and Hema Koya undoubtedly are contiguous neighbours of the aforesaid field but their cross-examination discloses that each of these two persons has or had some dispute with the respondent Bharatsing. However the evidence given by Vala Jetha does not suffer from any of these infirmities. There is no doubt whatsoever that he is also one of the neighbours of the aforesaid field. He states definitely that complainant Vaja Ratna was in possession all along including the disputed year 195758 and that in the monsoon of 1958 it was complainant Vaja Ratna who had sown millet and groundnut in the field. The latter part of his evidence is corroborated by the observations made by the panchas at the time when they inspected the scene of offence. The evidence led by the defence to prove that possession was delivered over to the complainant Vaja does not impress us. That evidence consists of the testimony of witnesses Gulabsing Odharsing and Bhavansing Jhinabava. Bhavnasings evidence is that when possession was demanded by Sada from the complainant Vaja Ratna the latter collected panchas at this i.e. the witness Gulabsings house and in the presence of those panchas consisting of about 15 persons a writing was executed by Vaja surrendering possession and which document was written by Devising Jhinabava and was kept in the custody of one Balwantsing Kabhai. He further deposes that after the surrender by complainant Vaja the land was given for cultivation by Sada to the respondent Bharatsing. The witness Bhavansing states that he was one of the panchas who had gathered at the house of Gulabsing and that at that time complainant Vaja surrendered the possession in his favour. But we find a contradiction between these two witnesses on an important point. According to Bhavansing the surrender was oral according to Gulabsing the surrender was evidenced by a document. The original document has not been called for nor does any explanation appear on the record which would justify the non-production of the document. The writer Devising has not been examined; nor has the owner Sada been examined. The defence however very strongly relies upon the entry in the combined Register which shows that in the year 1957-58 respondent Bharatsing had sown groundnut and Tuver crops in the field bearing survey number 100. The contention is that this entry is presumptive evidence of the possession of respondent Bharatsing. We cannot agree. Under Section 135-J of the Bombay Land Revenue Code it is the entry in the Record of Right which has a presumptive value and not the entry in the Tenancy Register. The extract which has been produced by the defence is an extract from the combined Register which consists both of the Record of Right and the Tenancy Register. In the Record of Right the name of Vaja Ratna still appears as the protected tenant. It is this entry which got a presumptive value. It is extremely improbable that the name of Vaja Ratna would still continue to be shown as protected tenant if he had surrendered the field in question by executing a document. The Tenancy Register is maintained with a view to show as to who had cultivated a land in a particular year and the Pahanipatrak would show the same fact. It is true that the fact that respondent Bharatsing has been shown to be the cultivator of the crops in the year 1957-58 may have some value but it cannot have a presumptive value such as the entry that Vaja Ratna was the protected tenant will have. In view of the testimony of the independent person Vala Jetha and the probabilities of the case we are not prepared to place any reliance upon the aforesaid entry in the Tenancy Register or the Pahanipatrak. The Police Patel of the village was present at the time when this entry was made but no attempt was made by the defence to prove as to under what circumstances that entry had come to be made and whether complainant Vaja who is an illiterate person had any notice about that entry having been made. Having regard to the fact that Vaja Was a protected tenant that he had been cultivating the land and the improbability of his having surrendered possession on account of a simple notice having been given by Sada it is impossible to place any reliance upon the extract from the Tenancy Register or the Pahanipatrak. In our opinion having regard to the aforesaid facts threw would be a presumption about the continuity of possession by the complainant Vaja Ratna. In any case the fact that Vaja had shown millet and groundnut over the whole field is a good piece of evidence to show that he was in possession of the field in question in 1958. There is absolutely no documentary evidence to show that Sada had ever given the land to the respondent Bharatsing for cultivation. The oral evidence on this point consists of the interested testimony of respondents brother Gulabsing only. Having regard to all these facts we have come to the conclusion that the learned Magistrate was right in holding that complainant Vaja was in possession of the aforesaid field.
3. It is common ground that on 27-6-1958 respondent Bharatsing and three others had gone to the field and had engaged themselves in sowing operations. The prosecution evidence shows that they had re-ploughed some portions of the field in which millet and groundnut seeds had already been sown by Vaja. The respondent Bharatsing does not dispute that he had ploughed the field before the arrival of Vaja and he had sown groundnut seeds in a part of the field. The prosecution case is that at about this lime complainant Vaja alone came to the field and when Vaja remonstrated with the respondent Bharatsing the latter attacked Vaja with a Dharia and caused him two injuries; one of which was a grievous hurt. This version is denied by the defence Accordingly to the defence at about 11-00 or 12-00 noon Vaja Ratna and witnesses Navalsing Anopsing Girdhar Khatu and three others cams to the field armed with Dharias and stick and assaulted respondents Bharatsing all of a sudden and caused him injuries on his head leg and back and respondent Bharatsing fell down unconscious that respondents wife Umed intervened and witness Girdhar gave one blow of her left hand and caused her a severe injury.
4. Both the sides were examined by Doctor on 27-6-1958 and the Doctors evidence shows that complainant Raja had two injuries on his person. The first was an oblique incised wound on left forearm just above the wrist on the volar and the radial aspects measuring 2/14 x 1.1/2 cutting the muscles and the left radius through and through. There was a compound fracture of the left radius as a result of this injury. The evidence shows that the wrist had been completely cut off except that the hand had remained joined with the arm by a thin narrow skin. The second injury was an L shaped superficial incised wound on the eminence of right hand measuring 1/3 & x 1/2 x skill deep. The respondent Bharatsing had three incised wounds. One on the forehead on outer third of left eye-brow measuring 1 x 1/2 x deep with black ecchymosis on left upper and lower eye-lids and the other two in the partieto occipital region both of them being bone deep one above the right ear and the other above the left ear In addition Bharatsing had one abrasion on the back of the right hand one contusion on the left leg and a vertical wheel mark in the middle of the left side back lined had one oblique wheel mark on the outer side of the left arm measuring 2 x 3/4 In addition to this the witness Girdhar Khatu had also an oblique incised wound on the outer side of the right leg in the middle) measuring 3 1/2 x 1/5 x skin deep.
5. On the date of the offence after Vaja Ratna had received the aforesaid injuries he was carried by Girdhar Khatu and Navalsing Anopsing first to the Police-Patel and thence to the Police Station and it was from there that Vaja was first taken to the dispensary and ultimately removed to the Hospital at Godhra. Vaja filed a First Information before the Police in which the version which he gave was somewhat different as to the number of persons who took part in the incident. But the role which was attributed by complainant Vaja in that complaint to respondent Bharatsing was the same as that which Vaja attributed to him in the trial Court.
It appears that at about 3-00 P.M. respondent Bharatsing appeared before the Police Patel and he was also sent to the Police Station with a report and he filed also a counter-complaint against complainant Vaja and five other persons in which he alleged that the injuries on his person and on the person of his wife Umed were caused by complainant Vaja and those five persons who included the witnesses Girdhar and Navalsing.
The prosecution relies upon the testimony of complainant Vaja Ratna and witnesses Girdhar and Navalsing in support of its case. The defence has not led any evidence in support of the establishment of its own version.
6. The evidence of complainant Vaja is that he went to the field at about 8-00 or 9-00 A.M. and when he found Bharatsing ploughing over his seeds he asked respondent Bharatsing as to why he was damaging his crops; that thereupon Bharatsing abused-him brought a Dharia which was Lying at the border of the field and aimed a Dharia blow which fell on his left hand. He states that he had a goading stick in his hand which he held up to receive the blows and therefore the goading stick was split up into two and then respondent Bharatsing gave another blow with the same Dharia which cut off his hand. In the cross-examination he deposes that he gave one blow with the portion of the goading stick which had remained in his hand on the forehead of respondent Bharatsing. There is no doubt that this evidence is not sincere honest and convincing in so far as it states the circumstances under which the attack on Vaja took place. Witness Vaja disclaims any knowledge as to how Bharatsing received injuries on his person. It is difficult to believe that Vaja will be in a position to give a stick blow after he had received such a severe injury on his left hand. Moreover there was no corresponding injury with a stick on the forehead of respondent Bharatsing. The witness Girdhar Khatu and witness Navalsing Anopsing both have fields near the scene of offence. Both state that they were in their fields at the time when the offence took place. Girdhar Khatu who claims to have come into the field deposes that the assault on Vaja was made after he had come into the field. But he has been contradicted by his Police statement which the witness admitted to be true wherein he had stated that he had seen the Dharia blow being given whilst he was running from his own field to the field of Vaja Ratna. The witness explains the injury on his own person by slating that he had received that injury in an act of snatching away the Dharia from the hands of the respondent Bharatsing after he had caused the serious injury on complainant Vaja. The witness is not so uninformative about the injuries on the person of respondent Bharatsing as the complainant Vaja is. He states that respondent Bharatsing may have received injuries whilst he and Vaja Rama were fighting. However he denies that Umed had received an injury and had fractured her hand. But the evidence of Navalsing is on the whole more informative about the circumstances in which the injuries were received on both the sides than the evidence of the other two witnesses. According to him when he was working in his field he saw respondent Bharatsing and Vaja fighting with each other that then he saw respondent Bharatsing giving a Dharia blow to complainant Vaja whilst he was in his own field. He states that thereupon he ran to the scene of offence and he and Girdhar snatched away the Dharia from the hand of the respondent Bharatsing. He admits that the respondent Bharatsing had injuries on his head and the eye but he states that he could not say how Bharatsing got the injuries. Probably according to him the injuries were received whilst respondent Bharatsing and Vajesing were fighting with each other before the blow on the hand of Vajesing was received. As against this testimony the statement given by the respondent Bharatsing is not impressive at all. In that statement no explanation is given regarding the injury on complainant Vaja. On the whole the evidence given by Navalsing substantially represents the truth in the matter and that evidence shows that probably after Vajesing came on the field there was a fight between him and respondent Bharatsing in the course of which Bharatsing received injuries and subsequently respondent Bharatsing gave a blow which caused grievous hurt on the hand of the complainant Vajesing. In our judgment therefore the learned Magistrate was right in holding that it was the respondent Bharatsing who had caused the grievous hurt with a Dharia on the hand of the complainant Vajesing. We also agree with the learned Magistrate that respondent Bharatsing had committed the offence of criminal trespass. We cannot agree with the subornation of Mr. Barot that respondent Bharatsing had no intention of causing mischief to the seeds sown by complainant Vaja and that Bharatsing had entered the field only with the intention of asserting his possession of the field. Having regard to the facts that the respondent Bharatsing was never in possession of the field and that he knew that complainant Vaja had sown millet and groundnut Bharatsing must necessarily know that his act of ploughing over the sown seeds must destroy them and he must be presumed to intend the natural consequence of his act. The act of respondent Bharatsing in remaining there with plough with his servants and his insistence to plough the field must necessarily cause annoyance to Vaja and Bharatsing must be presumed to intend to cause annoyance to Vaja.
7. On the above findings the main question which requires to be considered is whether the respondent Bharatsing had the right of private defence when he inflicted the injury on Vaja. In arriving at his conclusion the learned Magistrate appears to have ignored completely the law relating to private defence He has not considered this aspect of the case at all. In our judgment by not doing so the learned Magistrate has fallen into an error of law. Ordinarily an error of law constitutes a substantial and compelling reason for interfering with an order of acquittal.
8. As respondent Bharatsing committed criminal trespass complainant Vaja had the right under Section 97 Indian Penal Code subject to the limitations mentioned in Section 99 Indian Penal Code of protecting his field from the act of criminal trespass That right extended upto causing grievous hurt if necessity arose for the purpose. If Vaja did not exceed that right then under Section 96. Indian Penal Code Vajas act of causing hurt or grievous hurt to Bharatsing would not be an offence at all. Such an act of Vaja would be a lawful act and there cannot be a right of private defence against a lawful act. All the injuries on the person of Bharatsing were simple injuries. It is true that three of these injuries were caused by means of a Dharia. However there is nothing on the record to suggest that at the time when Dharia was being wielded against him a reasonable apprehension was caused in the mind of respondent Bharatsing that complainant Vaja intended to exceed the right of private defence given to him by law. So long as Vaja was causing or intended to cause simple or even grievous hurt to Bharatsing within the limits presented by the law of private defence Vaja was doing something which he was entitled to do under the law. Therefore there cannot be any doubt that respondent Bharatsing would not have any right of private defence against such an act of Vaja. Mr. Barot submitted that this view of the law was not the correct view. We cannot agree with this submission. Whether a person has a right of private defence or not has got to be answered with reference to the provisions contained in Section 97 of the Indian Penal Code and that section in so far as it deals with the right of private defence of person clearly states that every person has a right subject to the Restrictions contained in Section 99 to defend his body against an offence. This section which contains the law relating to private defence clearly states in terms that right is given to protect ones body against an offence only. Therefore if Vaja did an act which he was justified in doing by virtue of the provisions contained in Sections 97 and 104 of the Indian Penal Code the respondent Bharatsing would have no right of private defence even if the act of Vaja caused him an injury. So long as the criminal trespass continued and so long as Vaja did not cause reasonable apprehension in the mind of Bharatsing that he intended to exceed the right of private defence Bharatsing has no right to cause any injury whatsoever to the complainant Vaja. Therefore we have no doubt that the learned Magistrate was wrong in taking the view that respondent Bharatsing had the right of private defence and had not committed the offence under Section 326 of the Indian Penal Code.
9. As we have already said the injury on Vaja had resulted in fracture of the radius bone and was caused with a Dharia. Therefore the offence clearly falls under Section 326 of the Indian Penal Code. Under the circumstances in our opinion the respondent Bharatsing was clearly guilty of the offence under Section 326 Indian Penal Code.
Mr. Barot relied very strongly upon the case reported in Bhartu and Ors. v State: 1954 Criminal Law Journal 54. He contended that in this case it was decided under similar circumstances that the accused had a right of private defence and no offence was committed. We have looked into the fact of this case. We do not think that the facts of the case justify the submission made by Mr. Barot. From the last but one paragraph of the judgment it is quite clear that in that case the complainant Yadram though he was entitled under an appellate decree to receive possession of the northern part of a field had not still received possession thereof and possession was with the accused Bhartu and others. In that case the complainant Yadram came upon that part of the field with the express intention of forcibly dispossessing the accused Bhartu and others of the plot in dispute and in which plot Bhartu and others had cultivated sugarcane crop and in order to achieve this object the complainant Yadram had called his relations from a neighbouring village. Under these circumstances it is quite clear that the accused Bhartu and others were not criminal trespassers but were only civil trespassers. Therefore in that case complainant Yadram was not defending his field against criminal trespass but he intended to take possession thereof from a civil trespasser and with that end in view he took the law into his own hands and illegally assaulted Bhartu and others. Therefore the facts of this case are distinguishable from the facts of the present case.
10. The order of acquittal is due to the fact that the learned Magistrate has not correctly applied the law applicable to the facts of the present case and that in our judgment would constitute a substantial and compelling reason for interfering with the order of acquittal passed by the learned Magistrate.
11. As regards the sentence the offence is now nearly two years old. There is no doubt that the injury on Vaja was a serious one inasmuch as his hand was practically cut off; but at the same time we must also take into account that the offence is now pretty old and respondent Bharatsing had also some injuries on his person and his wife Umed had also received a fractured injury. In our judgment the ends of justice will be served by sentencing the respondent Bharatsing to suffer rigorous imprisonment for two years.
12. For the aforesaid reasons we allow the Appeal set aside the order of acquittal in respect of respondent Bharatsing for the offence under Section 326 Indian Penal Code and convict the respondent Bharatsing of the offence under Section 325 Indian Penal Code and sentence him to suffer rigorous imprisonment for two years. Appeal as against respondents Nos. 2 3 and 4 is dismissed.