V.P. Tyagi, J.
1. This appeal of Shivnarain Singh and Lal Khan is directed against the judgment dated 27th of June, 1970, of the Additional Sessions Judge, Sirohi, convicting both the appellants Under Sections 447 and 323 Indian Penal Code.
2. The incident in this case had taken place on 23rd of October, 1966 at the well Serawa situated in the boundaries of village Akdara. There is long drawn dispute between the parties about the ownership of this well and the land attached to the well bearing Khasra Nos. 20, 21, 22 and 23. The Jagirdars of the village claimed that the aforesaid land belonged to them whereas the cultivators asserted their right as Khatedara in the land denying any share to the Jagirdars. It is since 1948 that the dispute between the parties started but ultimately on 31st of January, 1966 the Settlement Officer declared 2/6th share in favour of the Jagirdars. Appellant Shivnarain Singh represents his wife Mst. Suakanwar in whose favour 1/3rd share, in the disputed land was transfered by her father. It is alleged that on 23rd of October, 1966, Shiv Narain Singh in the company of Lal Khan and Wali Mohammed went to exercise the right of possession of 1/3rd share in the land belonging to his wife and it was in these circumstances that fight started between the party of Shivnarain Singh and the complainant party. It may be mentioned here that during this incident Wali Mohammed lost his life. Cross cases started, but the complainant party was acquitted of the charge of murder of Wali Mohammed while the appellants were convicted for offences Under Sections 323 and 447 of the Indian Penal Code. Shivnarain Singh was fined Rs. 500/- for an offence Under Section 447 and Rs. 200/- Under Section 323 Indian Penal Code whereas Lalkhan was fined Rs. 100/- each Under Sections 447 and 323.
3. learned Counsel appearing on behalf of the appellants urged with all vehemence at his command that under the circumstances of this case conviction Under Section 447 Indian Penal Code cannot be sustained as the claim in the land of Shivnarain Singh's wife was determined by a competent authority & it was in the exercise of her right to hold the land that Shivnarain Singh had gone to the land in dispute in the company of Lalkhan and his brother who lost his life during the incident. The statement of P.W. 4 Khangar has been referred in this connection and the learned Counsel drew my attention to a document filed by the prosecution itself which is Ex. P. 6. This is the plaint filed by the complainant party including Khangar (P.W. 4) in the court of the Sub-Divisional Officer, Bali Under Sections 88 and 188 of the Rajasthan Tenancy Act claiming that the lands in dispute be declared as belonging to the complainant party. In this plaint, the history of the litigation between the parties has been given and it has been mentioned in para No. 4 that a judgment in favour of the opposite party was pronounced on 31st of January, 1966, by the Settlement Officer. It may be mentioned that Shivnarain Singh was defendant No. 4 in the said plaint. It is said that an ad-interim injunction was issued against the defendants in that suit not to take the possession of the disputed land, but it is no where established by the prosecution that the said injunction was served on Shivnarain Singh. In the absence of any notice of the interim order issued by the court, Shivnarain Singh could claim his right to bold the possession of the disputed land under the judgment of the Settlement Officer dated 31st of January, 1966, which admittedly declared the right of the Jagirdars to hold 2/6th share in the entire land in dispute. In these circumstances, it cannot justifiably be alleged by the prosecution that Shivnarain Singh went to the well with a criminal intention to take possession of the land. The ostensible right of Shivnarain Singh is very clear from the allegations made in the plaint Ex. P 6 and, therefore, the conviction of Shivnarain Singh Under Section 447 Indian Penal Code cannot be sustained. Lalkhan was the person who bad accmpanied Shivnarain Singh to assist him to take the possession of the disputed land which was declared to be his share by a competent authority and therefore, no criminal intention can be attributed to Lalkhan also. In such circumstances, the conviction of Shivnarain Singh and Lalkhan Under Section 447 Indian Penal Code is set aside and the sentence of fine passed against each of them is quashed.
4. As regards the conviction of the accused-appellants Under Section 323 Indian Penal Code, it is urged by learned Counsel for the appellants that they inflicted injuries on the members of the opposite side in the exercise of the right of private defence but this right is not borne out from the record. It is true that one of the members of Shivnarain Singh's party lost his life during this incident but the members of the complainant party, who were prosecuted for the murder of Wali Mohammed have been acquitted by a competent court and, therefore, it is difficult for this Court now at this stage to accept the contention of learned Counsel for the appellants that the appellants used force in the exercise of their right of private defence. An aggressor cannot claim any right of private defence and, therefore, I find it difficult to accept this contention of learned Counsel for the appellants.
5. Finally, it was urged on behalf of the appellants that instead of imposing a sentence of fine, they may be given the benefit of Section 3 read with Section 4 of the Probation of Offenders Act. learned Counsel appearing on behalf of the State has no objection if the appellants are released on probation. Shivnarain Singh is an employee of the Panchayat Samiti and he apprehends that he is likely to lose his job if the sentence of fine is maintained.
6. Looking to the circumstances of this case, I am of opinion that it will be in the interest of justice if the sentence of fine is set aside and the appellants are released on probation.
7. It is, therefore, ordered that if Shivnarainsingh & Lalkhan furnish a bond for Rs. 2,000/- each for keeping the peace and be of good behaviour for a period of one year, the sentence of fine imposed against them for the offence Under Section 323 Indian Penal Code shall stand set aside. Fine, it paid, shall be refunded to them. If the appellants have deposited the amount of fine imposed on them Under Section 447 Indian Penal Code it shall be refunded to them.
8. The appeal is accordingly disposed of.