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Laxmi NaraIn @ Latoor Vs. the State of Raj. and Ladu - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Case NumberD.B. Criminal Appeal No. 1643 of 2002
Judge
Reported inRLW2005(3)Raj1678; 2005(3)WLC780
ActsRajasthan Land Revenue Act, 1956; Indian Penal Code (IPC) - Sections 147, 148, 149, 302, 323, 325, 326, 427 and 447; Code of Criminal Procedure (CrPC) - Sections 313
AppellantLaxmi NaraIn @ Latoor
RespondentThe State of Raj. and Ladu
Appellant Advocate Biri Singh,; Kamlendra Sihag,; M.C. Jain and;
Respondent Advocate B.N. Sandu, Public Prosecutor
DispositionAppeal allowed
Cases ReferredKashiram and Ors. v. State of
Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect -.....v.k. bali, j.1. in an occurrence that took place on 29.9.1993 at village delawas, whereas one person from the side of the complainant party namely motiram lost his life, 20 others were injured. in the same very occurrence, ten persons from the side of the appellants were injured. the only but significant question that arises for adjudication in the present case is as to whether the appellants caused death of one and injured 20 others in exercise of their right of private defence of person and property or that they constituted unlawful assembly and attacked the complainant party, thus committing various offences for which they were tried and held guilty.2. prosecution put 40 persons on trial out of whom whereas laxmi narayan @ latoor has been held guilty for an offence under section 302.....
Judgment:

V.K. Bali, J.

1. In an occurrence that took place on 29.9.1993 at village Delawas, whereas one person from the side of the complainant party namely Motiram lost his life, 20 others were injured. In the same very occurrence, ten persons from the side of the appellants were injured. The only but significant question that arises for adjudication in the present case is as to whether the appellants caused death of one and injured 20 others in exercise of their right of private defence of person and property or that they constituted unlawful assembly and attacked the complainant party, thus committing various offences for which they were tried and held guilty.

2. Prosecution put 40 persons on trial out of whom whereas Laxmi Narayan @ Latoor has been held guilty for an offence Under Section 302 IPC and sentenced to life, Ram Swaroop, Narsiram, Gyarsa, Ganga Ram and Punia @ Puniram have been held guilty for offence Under Section 302 read with Section 149 IPC and sentenced likewise. All the appellants have also been held guilty and sentenced for various offences as fully detailed below.

Accused Laxmi Narain @ Latoor and Ladu RamUnder Section 302 IPC Imprisonment for life and a fine of Rs. 3,000/-,in default of payment of fine, further RI for 2 months to eachof them.Laxmi Narain @ Latoor, Ladu Ram, Ram Swaroop, NarsiRam, Gyarsa, Gangaram and Punya @ Puniram.Under Section 147 IPC One year RIUnder Section 148 IPC One year RIUnder Section 447 IPC 3 months' RIUnder Section 427 IPC 6 months' RIUnder Section 323 IPC 6 months' RIUnder Section 325 IPC One year's RI and a fine of Rs. 500/- in default ofpayment of fine, one month's RI.Under Section 326 IPC 2 years' RI and a fine of Rs. 1000/-, in default ofpayment of fine, further RI for one month.

3. Whereas Laxmi Narayan and Ladu have challenged the order of conviction and sentence passed against them by the learned Additional Sessions Judge, Dausa dated 9.12.2002 by filing D.B. Criminal Appeal No. 1643/2002, other appellants Ram Swaroop, Narsi Ram, Gyarsa, Gangaram and Punya @ Puniram have challenged the same very order of conviction and sentence by filing D.B. Criminal Appeal No. 1673/2002.

4. Appellants and their co-accused came up with the counter version asserting that they were owner and in possession of the land where the occurrence had taken place and the complainant party had tried to oust them. The complainant party was tried in separate trial and all the accused arrayed in that case have been acquitted resulting into filing of Criminal Revision No. 305/2003. By this common order, we propose to dispose of two criminal appeals and the criminal revision mentioned above.

5. The occurrence leading to the death of one and injuries to 20 as mentioned above took place on 29.9.1993 at 11 a.m. FIR (Ex.P.1) with regard to the incident was lodged by Pooran (PW-1) on the same day at 1 p.m. Learned counsel appearing for the parties are ad idem that special report with regard to the incident was not sent to the concerned Magistrate at all. In the occurrence aforesaid, whereas Moti Ram lost his life, Kailash, Ramesh, Ram Kishan, Rama, Rukmani, Ramjilal, Gabdu @ Ramavatar, Kalu, Ramjilal, Genda, Manbhari, Devaram, Soni, Manni, Ram Bhajan, Ram Karan and Smt. Bhooli Devi received injuries. From the side of accused, Laxmi Narayan @ Ladu, Lala, Gangaram, Harphool, Puriram, Gyarsa, Revad and Narsi were injured.

6. The FIR lodged by Pooran, when translated into English, reads as follows:

'Respectfully it is submitted that, we were working in our agricultural fields. Suddenly, 200 persons of Singpura, Abhaneri, Todarwas and Pipaliya came there, out of which Chhitar, Ghasi, Bhagwana, Laxminarain, Sanwal Ram, Kishore, Kori Lal, Rooplya, Parsa, Dola, Panchya, Kalu, Sitaram, Moolya, Hari, Gopal, Kalu, Laduram, Narsinga, Partyo, Nathu, Ramratan, Revad, Mangya, Badri, Gopal, Chhitar, Chhaijyo, Lacchyo, Ganga Ram, Janyo, Laxmi Narain, Lala, Babu, Bhagwana, Chhotu etc., were belonging to Singpura; Mahadeva, Bhagwana, Kishan, Janyo, Ram Karan, Mangla, Pappu were belonging to Todarwas and Revad who came there with his Tractor and driver Ramswaroop were belonging to Pipaliya. One tractor was brought from Maheshpura. Four tractors of Chhitar, Kalu, Rooplya and Sitar-am were brought from Singpura. Ten persons were belonging to Abhaneri, names of these persons so also names of other persons I do not know. All these persons came there in tractors and they started to plough our crops. Then our persons Motiram, Ramdev, Ramesh, Kishan Lal and Govinda went there to make them understand then they started beating them. When they were beating with Lathi, Gandasa, Kharwadia, we apprehending the quarrel ran away from there, then they started beating us. Ladies were also beaten and they drove the tractors towards us to kill us. Then to mediate, Prabhata, Ramchandra Gurjar, Narain, Harsai etc. came there and mediated with great difficulty. If these persons had not been there then our so many persons would have been crushed and killed by tractors. These persons had assaulted us to take away our life. I had brought the injured persons to Hospital. The report is being submitted, the action be taken.'

7. The prosecution in its endeavour to bring home the offences against the appellants and the co-accused who have since been acquitted, examined Dr. B.L. Bhatia (PW-25) who conducted post mortem of the dead body of Motiram. The doctor found the following injuries on the dead body of Moti Ram:

'1. One lacerated wound 5x1 1/2 cm Scalp bone deep covered with thick dark blood.

2. Stitched wound 1 1/4 cm long, on forehead above left eye due to which left eye was found bluish.

3. Stitched wound 1 1/2 cm long.

4. Contusion 1 3/4 x 1/2 cm. on right eye, lower and exterior part.'

8. In the opinion of the doctor, all the injuries sustained by Motiram were caused by blunt weapon within six hours before death and were there at the time of examination. Death in the opinion of the doctor was result of coma due to extradural haemorrhage caused by head injury which was sufficient to cause death in the ordinary course of nature.

9. Dr. B.M. Sharma, who was examined as PW-21, stated that on 29.9.1993 he had medico legally examined Ramjilal (PW-7) and found following five injuries on his person:

'1. Swelling 3 x 1/5 cm on the back part of head, pink red coloured.

2. Bruise 4 x 1.5 cm. on middle part of left arm anteriorly, pink-red coloured.

3. Bruise 13 x 2 cm on right side of back.

4. Bruise 8x2 cm pink-red coloured on left side of chest.

5. Bruise 3x1 cm on back part of right shoulder'.

In the opinion of the doctor, all the injuries were simple and caused by blunt weapon within duration of 24 hours.

10. On the same day, the doctor medico-legally examined Kalu Ram (PW-9) and found following one injury on his person:

'1. Abrasion 2.5 x 3/4 cm on left side of chest posteriorly on back.'

The injury was simple and caused by blunt weapon within duration of 24 hours.

11. On the same day, he also examined Ramdev son of Sukhram and found following three injuries on his person:

'1. Bruise 9x2 cm on left side of back, pink-red coloured.

2. Swelling 7 x 6 cm on back side of left hand.

3. Swelling 8x4 cm on back side of left forearm.'

All the three injuries were caused by blunt weapon within duration of 24 hours.

12. Doctor also examined on the same day Genda (PW-11) and found the following three injuries on his person:

'Bruise 8x2 cm on left side of back.

2. Bruise 5 x 2.5 cm on left side of back below Injury No. 1.

3. Swelling 5x3 cm on left side of back at shoulder bone.'

All the injuries were caused by blunt weapon. The doctor advised x-ray for injuries No. 1 and 2. Injury No. 3 was simple. The injuries were caused within duration of 24 hours.

13. The doctor, on the same day, had examined Rukmani (PW-6) and found the following two injuries on her person:

'1. Lacerated wound 6 x 3/4 cm. fresh blood clot was present on scalp, pareital region.

2. Complaint of pain on right arm, shoulder and waist.'

Injury No. 1 was caused by blunt weapon for which doctor also advised x-ray. Duration of injury was fresh.

14. Doctor also examined Ramkaran (PW-27) and found following two injuries on his person:

'1. Lacerated wound 2.5 x 1/4 cm left fronto-parietal region of scalp in middle. Fresh blood clot was present.

2. Complaint of pain on left elbow.'

Injury No. 1 was simple and was caused by blunt weapon, duration of which was fresh.

15. He also examined Ramesh (PW-3) and found the following two injuries on his person:

'1. Lacerated wound 8 x 1.5 cm on right parieto-temporal region of scalp above right ear posteriorly, fresh blood clot was present.

2. Abrasion 2x1 cm on left forearm, anteriorly, '

Both the injuries were caused by blunt weapon. Doctor advised x-ray for injury No. 1 whereas injury No. 2 was simple in nature. Duration of injuries was fresh.

16. Doctor also examined Smt. Soni (PW-22) and found the following four injuries on her person:

'1. Lacerated wound 4.25 x 1/2 cm on left parietal region of scalp posteriorly, fresh blood clot present.

2. Incised wound 2.25 x 3/4 cm on tip of right index finger posteriorly, fresh blood clot present.

3. Lacerated wound 1.5 x 1/2 cm on upper part of right elbow interiorly.

4. Swelling 4 x 2.5 cm, red pink coloured, on upper part of left forearm posteriorly.'

Injuries No. 1, 3 and 4 were caused by blunt weapon whereas Injury No. 2 was caused by sharp weapon, Doctor advised x-ray for injuries No. 1 and 2. Injuries No. 3 and 4 were declared to be simple and duration of injuries was fresh.

17. On the same day, the doctor also examined Smt. Rama (PW-5) and found following five injuries on her person:

'1. Lacerated wound 5 x 3/4 cm. on left parietal region of scalp, fresh blood present.

2. Lacerated wound 5 x 1/2 cm, on right parietal region of scalp.

3. Lacerated wound 1.5 x 3/4 cm on the tip of right middle finger.

4. Bruise 3x1 cm on left side of waist, pink red coloured.

5. Swelling 4 x 2.5 cm back side of left shoulder pink red coloured'.

All the injuries were caused by blunt weapon and the doctor advised x-ray for Injuries No. 1, 2, 3 and 5 whereas injury No. 4 was opined to be simple. Duration of injuries was fresh.

18. He also examined Motiram (deceased) and found the following eight injuries on his person:

'1. Lacerated wound 4 x 1/2 cm on left parietal region of scalp, anteriorly, blood was coming.

2. Lacerated wound 2.5 x 1/2 cm on left parietal region of scalp, interior side of the injury No. 1.

3. Lacerated wound 2.25 x 1/2 cm on right frontal region of scalp.

4. Depressed deformity, 7x3 cm on right frontal and parietal region of scalp.

5. Swelling and deformity on left parietal and temporal region, 7 x 3 cm.

6. Swelling 9 x 6 cm on right parietal region of scalp.

7. Swelling on upper eye brow of left eye, the eye was not opening.

8. Blood was coming from mouth.'

The injuries were caused by blunt weapon. Doctor advised x-ray for all the injuries. Duration of injuries was fresh. All the injuries were on the head and therefore, there was possibility of his death due to these injuries.

19. On the same very day, Dhapa @ Pooni Devi (PW-29) was examined by the doctor who found following two injuries on her person:

'1. Bruise 2 x 14 cm on lower part of right forearm red pink coloured.

2. Complaint of pain on right hip bone.'

20. Injury No. 1 was simple and caused by blunt weapon. Duration of the injuries was within 24 hours.

21. Doctor also examined Ramavatar @ Gabdu (PW-8) and found following two injuries on his person:

'1. Lacerated wound 1/2 x 1/2 cm on upper part of left forearm posteriorly, fresh blood clot present.

2. Lacerated wound 3 x 1/2 cm on parietal region of scalp posteriorly, fresh blood clot present.'

Both the injuries were simple in nature and were caused by blunt weapon within duration of 24 hours.

22. Doctor also examined Rambhajan (PW-26) and found following injuries on his person:

'1. Bruise 5 x 1.5 cm on left hip.

2. Bruise 6 x 1.5 cm on left forearm, pink red coloured.'

Both the injuries were caused by blunt weapon and were simple in nature and had been caused within a duration of 24 hours.

23. Doctor also examined Smt. Sangari (PW-20) and found following three injuries on her person:-

'1. Bruise 2.5 x 1 cm on right shoulder, pink-red coloured.

2. Complaint of pain in waist.

3. Swelling on right upper arm, pink-red coloured.

The injuries were simple in nature and were caused by blunt weapon within a period of 24 hours.

24. Doctor also examined Smt. Bhooli (PW-30) and found following injuries on her person:

'1. Swelling 9 x 6 cm on back side of right hand, red-pink coloured.

2. Swelling 3 x 2 cm on right parietal region of scalp.

3. Complaint of pain on back side of neck and throat.'

Injuries No. 1 and 2 were caused by blunt weapon. Doctor advised x-ray for Injury No. 1. Injury No. 2 was simple and caused within duration of 24 hours.

25. Doctor also examined Ramjilal (PW-10) and found following four injuries on his person:

'1. Swelling 9 x 6 cm behind the left elbow, pink-red coloured with abrasion 1 x 1/2 cm.

2. Bruise 9 x 2 cm on back of chest left side, pink-red coloured.

3. Abrasion 3 x 1/2 cm on lower part of back of chest, left side.

4. Lacerated wound 3 x 1/2 cm on middle part of left leg, fresh blood clot present.'

Doctor advised x-ray for injury No. 1. Injuries No. 2, 3 and 4 were declared to be simple. The duration was within 24 hours.

26. Doctor also examined Smt. Mangli and found following two injuries on her person:

'1. Swelling 7 x 5 cm bone, deformity on back side of left elbow and on near upper arm, red-pink coloured.

2. Complaint of pain in waist.'

Injury No. 1 was caused by blunt weapon and was grievous but final opinion could be given only after receipt of x-ray report. Duration of injury was 24 hours.

27. On the same day, the same very doctor examined Smt. Manni (PW-23) and found the following two injuries on her person:

'1. Swelling 4 x 3 cm on right parietal and occipital region of scalp, red pink coloured.

2. Swelling 6 x 5 cm on back side of right shoulder and left collar bone pink red coloured, abrasion 1 x 1/2 cm on swelling.'

Both the injuries were caused by blunt weapon. Injury No. 1 was simple in nature. For injury No. 2 the doctor advised x-ray. Duration was within 24 hours.

28. Doctor also examined Ram Kishan (PW-4) and found the following five injuries on his person:

'1. Lacerated wound 1.5 x 1/2 cm on left parietal region of scalp.

2. Bruise 6 x 1.5 cm on right side of chest and back red pink coloured.

3. Swelling 6 x 5 cm on left side of back on loin.

4. Bruise 4 x 1 cm on lower part and back side of right leg.

5. Abrasion 2.5 x 1.5 cm on back side of left shoulder:

29. All the injuries were simple in nature and were caused by blunt weapon within 24 hours.

30. On the same day, doctor examined Kailash (PW-2) and found the following four injuries on his person:

'1. Lacerated wound 5 x 1 cm, on parietal region of scalp, back side.

2. Bruise 10 x 1 cm on left side of throat and on jaw, pink red coloured.

3. Bruise 4 x 1.25 cm on left side of throat below the injury No. 2.

4. Bruise 7 x 1.5 cm on left thigh, in middle part.'

All the injuries were caused by blunt weapon. Doctor advised x-ray for Injury No. 1 whereas remaining injuries were simple. Duration of injuries was fresh.

31. From the description of injuries sustained by 20 persons from the side of the complainant and as per the submissions made by the learned counsel for the parties, it appears that whereas Smt. Rama suffered one grievous injury, one grievous injury was suffered by Ramjilal also Smt. Soni also suffered one grievous injury whereas Smt. Manni also suffered one grievous injury. Ramdev, who was not examined as prosecution witness, also suffered two grievous injuries whereas Mangli also received one grievous injury. One grievous injury was also received by Smt. Booli devi whereas all injuries on the person of prosecution witnesses and Ramdev who was not examined were simple in nature. Most of the injuries caused to the prosecution witnesses and Ramdev, it again appears, were caused by blunt weapon.

32. On 29.9.1993 itself, on the police request, the same very doctor examined accused Ladu son of Ramdev and found the following four injuries on his person:

'1. Incised wound 2 x 1/4 cm, soft tissue deep, fresh blood clot on right clavicle region.

2. Incised wound 1.25 x 0.25 cm soft tissue deep on right clavicle region interior side of injury No. 1, fresh blood clot.

3. Abrasion 2 x 1.4 cm on interior side of injury No. 2.

4. Swelling 4 x 2.5 cm on right parieto temporal region.'

Injuries No. 1 and 2 in the opinion of the doctor were caused by sharp edged weapon whereas the remaining injuries were caused by blunt weapon. Doctor advised x-ray for Injury Nos. 1, 2 and 4. Injury No. 4 was declared to be simple.

33. On the same day, doctor examined Lala son of Hanuta and found the following six injuries on his person:

'1. Lacerated wound 1 x 1.4 cm on occipital region on scalp.

2. Lacerated wound 1 x 1.4 cm above right ear of scalp.

3. Abrasion 1 x 1.4 cm on right knee.

4. Abrasion 1.5 x 1.4 cm upper part of right leg.

5. Abrasion 1 1/4 x 1/4 cm on right leg in middle part.

6. Abrasion 2 x 1.5 cm on left middle finger.'

All the injuries were found to be simple and were caused by blunt weapon.

34. The doctor also examined Laxmi Narain son of Hanuta and found the following five injuries on his person:

'1. Lacerated wound 4 x 3/4 cm on the tip of right little finger. Some part of finger was separated, fresh blood present.

2. Bruise 3 x 1 cm on upper part of right forearm anteriorly, red pink coloured.

3. Abrasion 3 x 1/2 cm on right shoulder anteriorly.

4. Abrasion 1 x 1/2 cm above the right shoulder.

5. Complaint of pain on left shoulder.'

All the injuries were caused by blunt weapon. Doctor however advised x-ray for Injury No. 1 whereas other injuries were declared to be simple caused within duration of 24 hours.

35. He also examined Gangaram and founds the following four injuries on his person:

'1. Abrasion 1 x 1/4 cm on left index finger in middle part.

2. Swelling 4 x 2.5 cm on back side of left hand in middle part, pink red coloured.

3. Abrasion 1 x 1/2 cm on forearm of left hand in middle part posteriorly.

4. Complaint of pain in thigh and knee of left foot.'

All the injuries were simple and had been caused by blunt weapon within duration of 24 hours.

36. The doctor also examined Harphool and found the following three injuries on his person:

'1. Swelling 4 x 3 cm on upper part of right forearm, antero posteriorly, red pink coloured.

2. Bruise 4 x 1 cm on right upper arm, antero posteriorly, lower part.

3. Abrasion 1.5 x 1/2 cm on right shoulder. Complaint of acute pain on shoulder.'

Injuries No. 1 and 2 were simple in nature whereas x-ray was advised for Injury No. 3. All the injuries were caused by blunt weapon within duration of 24 hours.

37. He also examined Pooni Ram and found the following injury on his person:

'1. Swelling on left leg in the middle part antero posteriorly, red pink coloured.' The injury was caused by blunt weapon. Doctor advised x-ray for the injury. The duration was within 24 hours.

38. Doctor also examined Laxmi Narain son of Jhuntharam and found following one injury on his person:

'1. Bruise 3.5 x 1.5 cm upper part of right shoulder, red pink coloured.'

The injury was caused by blunt weapon. Doctor advised x-ray for the injury. Duration of injury was within 24 hours.

39. Doctor also examined Gyarsa and found the following injury on his person:

'1. Lacerated wound 2.25 x 1/2 cm on left parietal region of scalp posteriorly.'

The injury was simple in nature and was caused by blunt weapon within a period of 24 hours.

Doctor also examined Revad and found the following injury on his person:

'1. Complaint of pain, in right shoulder and left side of back.'

40. Doctor also examined Narsi and found the following injury on his person:

'1. Lacerated wound 2.5 x 1/2 cm on right parietal region of scalp.'

The injury was simple in nature and was caused by blunt weapon within duration of 24 hours.

41. In his cross-examination, adverted to him by the learned Public Prosecutor with regard to the injuries sustained by the accused party, the Doctor stated that the injuries mentioned by him in injury report Ex.D.13A could be caused by a person himself having strong will power and injuries mentioned in Ex.P.12A could not be sustained due to falling down on hard surface. Injury No. 1 could possibly be sustained due to colliding forcefully with sharp edged broken piece of glass placed vertically. Injury No. 2 could also possibly be caused by falling down forcefully on or colliding with sharp edged glass placed vertically. Injuries No. 3 and 4 could possibly be caused by falling down from different angles. Injury No. 1 mentioned in Ex.D-14A could be self caused but other injuries could not be self suffered. Injury No. 2 could not be sustained due to falling down. Injuries No. 1, 2 and 3 of Ex.D. 15 could be sustained due to falling down on hard surface. Injuries No. 1 and 3 mentioned in Ex.D. 16 could be sustained due to colliding forcefully with hard surface but injury No. 2 could not be so caused. Injury No. 1 of Ex.D. 17 could not be sustained due to falling down as no marks of abrasion are present. Injuries mentioned in Ex.D. 18 to 21 could be self suffered. Injuries mentioned in Ex.D. 19 and Ex.D.21 could be possible due to falling down forcefully on hard surface.

42. Learned counsel appearing for the parties on the basis of medical evidence submit that Ladu had one grievous injury caused by blunt weapon. Most of the injuries suffered by the accused party were by blunt weapon even though some of injuries sustained by them were on vital parts of the body.

43. Pooran Mal, the first informant, who was examined as PW-1 stated that on 29.9.2003 at about 11-12 in the morning, he, Moti, Ramdev, Govinda, Badri, Ramlal, Ladu, Mst. Soni and Manni were working in their common land known as Beedwali. Five tractors came from the side of Seengpura in which Ghasi, Latoor, Roopliya, Kalu, Chhitar and Ramswaroop were sitting. Besides them, 100-125 more persons came on foot in their fields of Beedwali. In half of their fields, there was crop of groundnut whereas in the remaining half, there was crop of Tarameera which they had sown 15-20 days ago. The persons named above, after arriving at the scene stated that they will uproot our crops, otherwise we should do it ourselves. They requested these persons not to do so, by folding hands but they did not care and Ghasi gave blow with Gandasi to Moti which hit him on his head. Latoor gave a blow with Gandasi to Moti on his head. When Moti became unconscious and fell down, Ladu gave him a lathi blow. Roopliya, Kalya, Chhitar and others also started beating. His mother Soni was given lathi blow by Babulal on the head. Bhagwana gave lathi blow to his grand mother Manni. They made an attempt to over run Ramdev by tractor but he got entangled with the tyre. The tractor was being driven by Kishore. When Ramdev had fallen down, Gyarsa, and Revad gave him beating. Bhagwana, Sanvalya, Pappu, Manglya and Ramkaran also gave beating to Ramesh, Kajod, Singari, Rama, Ramotar @ Pappu. He further stated that he had made the report about this incident to the police, which on arrival at the spot had made site plan (Ex.P.2). They had also taken into possession the blood stained earth and broken pieces of bangles. In his cross-examination, he stated that their land known as Beedwali was about 60-62 Bighas out of which in 35 Bighas the crop was standing whereas the remaining land was lying vacant. It was also stated by him that ever since he became the age of discretion, they were in possession of the land. They had papers with them with regard to the possession of the land but he had not seen the papers with regard to the same in the file today. They had not produced those documents as the same were in possession of their father. He was not knowing Khasra No. of the land of Beedwali. The original documents with regard to the land, he stated, were with them and copies thereof were given to the police. He denied for want of knowledge if the land of Beedwali was allotted to Chhitar, Noda and Buddha in 1978 which Buddha might have sold to Laxminarain, Bhagwan Sahai and others for a sum of Rs. 71,000/- on 10.11.1990. He also denied for want of knowledge that out of the land of Beedwali, Chhitar and Noda had sold some land by virtue of registered sale deed. He also denied for want of knowledge if the land in dispute was first mutated in the name of Chhitar, Noda and Buddha and thereafter, in the name of accused. He denied the suggestion given to him that earlier Nanda, Chhitar and others were cultivating the land in dispute and after they sold it, accused are in possession of the same. He stated that they had not given any beatings to the accused. They had not seen any injury on the person of accused party. He also stated that the fight had taken place in the fields of Ramnath which was in Beedwali fields. He, however, denied for want of knowledge as to how much land was in occupation of Ramnath. He also denied for the same reason the area of his own fields as also the area of fields of Ladu and Govinda. He denied the suggestion that before the occurrence, accused party had sown the crop of ground nut and Tarameera or that when the accused came to sow the vacant land, fight had taken place.

44. Kailash who was examined as PW-2, after making deposition in tune with the prosecution case stated in the cross-examination that 13 persons have their land in the fields known as Beedwali. Their fields are separate but he would not know Khasra Nos. of the same. The ownership of this land, he stated, was in their name but the fight had taken place in the field of Ramnath which was measuring 45 Bighas. He also denied the suggestion that the land was owned and possessed by the accused party.

45. Ramesh, Ramkishan, Rama and Rukmani PW-3 to 6 respectively deposed likewise. Rukmani (PW-6), however, in cross-examination stated that the fight had taken place in the vacant land which adjoins the land which is known as Beedwali land. She would not know as to how much the vacant land measured. She further stated that the cultivation was that of the accused party and they were saying that the land belongs to them and they will sow it whereas we were saying that the land was ours and we will sow it.

46. Ramjilal (PW-7) stated in his cross-examination that accused Revad and others, deceased Moti Ram, he and his brothers had share in the land. He also admitted that there was fight between both the parties and whereas the accused party was saying that they will sow the land, he was saying that he will sow the land. They had sown 40-45 Bighas of land whereas rest was lying vacant.

47. PW-8 Gabdu @ Ramavatar stated in his cross-examination that he would not remember the Khasra No. of the land of Beedwali. He admitted that they had not purchased the land of Beedwali nor the same was allotted to them. It was unallotted land. Kalu examined as PW-9 supported the prosecution version but denied similar suggestions given to him as were given to other witnesses. Ramjilal (PW-10) stated in his cross-examination that they were not paying rent of the land in dispute. Genda (PW-11) deposed likewise. Kajod, who was examined as PW-12, stated in his cross- examination that there were 13 fields in Beedwali land and the fight had taken place in the land of Ramnath which was in Beedwali land. Manbhari, who was examined as PW-13, without specifying the part played by various accused, gave almost similar version of the incident. Hazari, who was examined as PW- 14, deposed with regard to the recovery of lathis from various accused by the police. Kishanlal (PW-15), Harsahai (PW-16) and Ranjeet (PW-17) are witnesses with regard to the recovery of blood stained clothes, simple and blood stained earth and lathis. Ramnath, who was examined as PW-18 deposed that the police after inspection of the spot had made the site plan (Ex.P.2) in his presence. In cross-examination, he stated that what was jotted down in the site plan he would not know as he was illiterate and he would also not know the Khasra No. of the land. What was written in Ex.P.3, Ex.P.4 and Ex.P.5 he would not know. The police had read out the same to him which he would not now remember. He further stated that the police had told him the place where Moti had died and where blood was lying. He had admitted that Ranjeet was his real brother and he knew Chhitar, Nonda and Buddha. He denied for want of knowledge whether the land had been allotted to Chhitar and that Chhitar had sold the land in dispute. He also denied the suggestion that the land where the occurrence took place belonged to the accused party and that they had sown the crop of Tarameera.

48. Devaram, Sub Inspector, Police Station Dausa, who was examined as PW-19, stated that on 29.9.1993, site plan (Ex.P.2) was prepared at the spot. He also stated that simple and blood stained earth was lifted which was taken into possession vide memo Ex.P.3 and Ex.P.4. He also deposed with regard to the other steps which were taken while investigating the case. In his cross-examination, he stated that site plan (Ex.P.2) was not prepared by him. He further stated that he would not know the khasra number of the land shown at mark ABCD in the site plan (Ex.P.2). He, however, stated that he was told khasra numbers of the land regarding which he was given khasra girdawari of Samwat Year 2048 to 2051, which is Ex.D.8. He also stated that Ex.D.9 trace map was given to him by the Patwari, Patwari had also given him copy of Khatauni (Ex.D.10). He denied for want of knowledge if in the revenue record some persons were allotted land or not. He further stated that but for Ex.D.8 to Ex.D.10 he had not taken into possession any other document like Jamabandi of the land in dispute. He admitted that he had not recorded the statements of the co-sharers of the land as it was not necessary to record their statements. He further stated that he had made no investigation as to whether the land had been sold by way of registered sale deed. He was, however, told by the Patwari that the accused were not the co-sharers in the land in dispute. He admitted that he had not recorded statement of the Patwari and had also made no note with regard to the enquiries made by him from the Patwari. He denied the suggestion that two years prior to the date of occurrence, the accused party was cultivating land. He, however, stated that he had made enquiries from the accused party who had told him orally that the land belonged to them. He also stated that at the time of inspection of land in dispute, it was revealed that the accused had uprooted the crop. He also stated that the fight had taken place at the time when accused after ploughing the crop were going and were stopped by the complainant party by telling that their crop should not be uprooted. He admitted that the accused were medically examined and they had lodged cross FIR with regard to the same incident.

49. Singari, who was examined as PW-20, without specifying the role of various accused, gave general description of the incident. Soni examined as PW-22 supported the prosecution case. She, however, stated in her cross-examination that before the day of occurrence accused Revad and others were also cultivating Beedwali land but they had not purchased the land from anywhere. The same belonged to them (complainant party) and they were cultivating the land at the spot. Manni who was examined as PW-23 supported the prosecution version but stated that Ladu had not given any injury to anyone, on the other hand, after putting lathi in his arm-pit, had folded hands. Ram Bhajan, who was examined as PW-26 supported the prosecution version. He, however, stated in the cross-examination that the land where they had sown Tarameera crop and where the fight had taken place, he would not be able to tell Khasra Nos. of the same but they had produced Jamabandi and Khasra Girdawari of the same before the police. Ramkaran (PW-27) and Smt. Bhooli (PW-30) respectively also generally support the prosecution case. They were subjected to similar cross-examination as other injured eye witnesses.

50. There is no need to make a mention of the deposition made by various police officers/officials who had taken various steps in investigating the case as nothing based upon their evidence has been urged before us.

51. The prosecution in its endeavour to show that the land subject matter of dispute where the accused party had caused one death and injuries to several persons, was possessed by the complainant party, proved on records Ex.P.79, Ex.P.80 and Ex.P.81, Ex.P.79 is order dated 12.4.2001 passed by the Board of Revenue. This litigation was between Lallu Ram and Badri from the side of complainant and Laxmi Narayan, Buddha and Bhagwan Sahai on the side of the accused. Bhagwan Sahai, it may be stated, has been acquitted. The facts of the case mentioned above reveal that Lallu Ram and Badri had filed a revision under the provisions of Rajasthan Land Revenue Act, 1956 against the decision of the Additional Commissioner, Jaipur Division dated 15.11.1995 (Ex.D.47). It is stated in the order while giving brief facts that Buddha was supposedly allotted certain parcel of land and mutation of the land had also been attested. Later, he sold this land to Laxmi Narayan. Appeal was filed against the order of mutation before the Collector who had remanded the case but the Additional Commissioner had set aside the order of Collector and in these circumstances, the petitioner had filed the revision. It was argued on behalf of the petitioners that they were in possession of the land which was supposedly allotted to Buddha in 1978 but they had no proof regarding allotment. Lateron, Laxmi Narayan bought this land. There was no allotment done to Buddha as was clear from the record which came from the office when he applied for the details of the allotted land. Counsel for the non petitioners, on the other hand, argued that the land was allotted to Buddha in 1978, mutation was entered from Gair Khatedar to Khatedar and later on land was sold in 1990 to Laxmi Narayan and mutation was also entered in his name and therefore, there was no merit in the revision. On the basis of contentions of the learned counsel appearing for the parties as noted above. The Board of Revenue ordered as follows:

'The main principle is that we have to see here is that proof of the pudding is in its eating and therefore, if the land was allotted to Buddha then they should show us the allotment order or any other details regarding the allotment done to Buddha in 1978. In the absence of any proof regarding allotment to Buddha I find that the order of Collector was perfectly in order. He had just set aside the mutation and remanded the case for a fresh decision after giving opportunity to all the parties. Therefore, I feel the Additional Commissioner severely erred in setting aside order of Collector, Dausa. He should have seen whether there is some adequate proof regarding allotment to Buddha. In the remand order, if there is any proof allotment to Buddha, then that should be submitted when taking fresh decision. The decision taken to cancel the order of the Collector, Dausa was not proper. And therefore, I set aside the order of Additional Commissioner, Jaipur dated 9.3.1993 and consequently, both the revision are accepted.'

52. Ex.P.80 is order dated 30.5.2000. This pertains to litigation between Ramkishan, Ram Swaroop sons of Genda and Ramjilal on the one side, and Bhagwan Sahai and Chhitar, allottee of the land, on the other side: The order has been passed by the District Collector, Dausa. It appears that appeal was filed by Ram Swaroop and others against the order of Allotment Committee had allotted land to Chhitar pertaining to Khasra No. 24 of area 8 Bighas 14 Biswas. It is mentioned in the order that the respondent was summoned through notice but despite service, he did not appear and therefore, ex parte proceedings were initiated against him. It was argued on behalf of the appellant that the land measuring 8 Bighas 14 Biswas in Khasra No. 24 was allotted to respondent No. 1 vide orders dated 9.8.1978 by not properly following the procedure of allotment. After giving as to what proper proceedings were not carried out, it is also mentioned that the respondent had not been given possession of the land whereas the land was in possession of the appellants. It was also stated on behalf of the appellants that the land was not vacant and on verification of the same, allotment was found to be illegal. It was also stated that the allottee was not land-less and therefore, the allotment should be cancelled. It appears that the allotment made to Chhitar vide order dated 9.8.1978 was set aside and the Allotment Committee was directed to make allotment according to rules.

53. Ex.P.81 is order dated 31.8.2000 passed by the Collector, Dausa. This litigation is between Lallu Ram and Badri on the one side and Buddha on the other side. It was a application filed by Lallu Ram and Badri against order dated 9.8.1978 passed by the SDO, Dausa who vide orders dated 9.8.1978 had allotted 7 Bighas of land to Buddha in Village Chak Harpatti, Gram Panchayat Delawas. It was urged on behalf of the petitioners that Buddha was illegally allotted 7 Bighas of land as the same was against the Allotment Rules. The Allotment Committee had also violated rules while making allotment. It was also urged that the allottee was not in possession of the land and even after allotment, the conditions of allotment were not fulfilled. The respondent Buddha, it is mentioned in the order, appeared and prayed that the allotment be cancelled and the compromise that had been arrived at should be accepted, and further that he was not in possession of the allotted land and further that even before allotment, Lallu Ram and Badri sons of Govinda were in possession. Learned counsel for the allottee also urged that the compromise should be accepted and that the allottee was not in possession of the land nor he wanted to keep the allotted land and therefore, allotment should be cancelled. The Collector, on the basis of submissions made before him, mentioned that in view of the admission made by the allottee that he was not in possession of the land, there was no need to find out if the allotment was made according to the rules or not while cancelling the allotment. Despite admission of the respondent that petitioners in the case were in possession, the learned Collector, however held that the compromise made between the parties alone was not sufficient to prove that the petitioners were in possession and therefore, simply on account of compromise arrived at between the parties, it would not be proved that the petitioners were in possession. Therefore, if the petitioners may be in possession and have some right then the petitioners should produce those documents before the concerned officer but the petitioners could not be given any relief on the basis of the compromise. The petition was accepted and the allotment made on 9.8.1978 was cancelled.

54. Learned counsel defending the appellants states that when examined Under Section 313 Cr.P.C. whereas the accused who were injured admitted their presence but pleaded that they were in possession of the land subject matter of dispute and the complainant party had endeavoured to forcefully evict them and in the process caused them injuries, it is only in exercise of their right of private defence of person and property that they had caused injuries to the complainant party. Other accused, he states, had denied their presence at the scene of occurrence.

55. Appellants led evidence in defence and reference in this connection, may be made to Ex.D.45, which is registered sale deed dated 5.10.1990, vide which Chhitar son of Chhotu had sold the land to Chhitar and Sanwalram sons of Jhuntha Ram for consideration of Rs. 83,500/-. The land is described to be entered in Khasra No. 116/1 and it was 2.96 Hectares.

56. Defence has also produced on record Ex.D.46 which is registered sale deed vide which Buddha sold land to Laxmi Narayan and Bhagwan Sahai accused on 8.7.1978, the land as per the sale deed dated 7.11.1990 is entered in Khasra No. 116/4 and is of an area of 1.75 Hectares. The land was sold for a sum of Rs. 71,000/-.

57. Chhitar son of Chhotu was stated to have been allotted land on 9.9.1978 measuring 8 Bighas 14 Biswas whereas Buddha was stated to have been allotted land measuring 7 Bighas on the same day.

58. Defence has produced mutations Ex.D.53 and Ex.D.54 which show that vide sale deed Buddha had sold land to Laxmi Narayan and Bhagwan Sahai sons of Jhuntha Ram. This mutation was entered by Patwari and was sanctioned by first Kanoongo and then by the Tehsildar on 15.7.1991. Mutation Ex.D.54 shows that by sale deed, Chhitar son of Chhotu had sold the land to Chhitar and Sanwalram sons of Jhuntha Ram. This mutation was also entered into by the concerned Patwari and had been sanctioned by the Tehsildar. Defence has also produced on records, Khasra Girdawari Ex.D.48, Ex.D.52, Ex.D.60 and Ex.D.61 for the period 1991-1994. As per Khasra Girdawari Ex.D.48, the land entered in Khasra No. 116/1 is recorded to be in possession of Chhitar and Sanwalram sons of Jhuntha Ram. As per Ex.D.52, land in Khasra No. 116/1 is entered in possession of Chhitar and Sanwalram sons of Jhuntha Ram. As per Ex.D.60, the land entered in Khasra No. 116/4 is shown to be in possession of Laxminarayan and Bhagwan Sahai sons of Jhuntha whereas as per Ex.D.61, the land entered in Khasra No. 116/1 is shown in possession of Chhitar and Sanwalram sons of Jhuntharam. Defence has also produced on records, Jamabandi Ex.D.58 and Ex.D.59 vide which the land entered in Khasra No. 116/1 is shown to be owned and possessed by Chhitar and Sanwalram sons of Jhuntha Ram, for the Samwat Year 2056 equivalent to English calendar 2000. As per Ex.D.59 land entered in Khasra No. 116/4 is shown to be owned and possessed by Laxmi Narayan and Bhagwan Sahai sons of Jhuntha Lal. Ex.D.59 is of Samwat Year 2056 equivalent to English calendar 2000.

59. On the basis of evidence as detailed above, the learned counsel appearing for the appellants, Mr. Biri Singh, vehemently contends that the land where the occurrence took place was owned and possessed by the accused party and the complainant party was endeavouring to take possession and it was while they were attempting to forcibly evict the appellants by even causing injuries to them, that the appellants who were present at the spot and who too were injured, caused injuries to the complainant party in exercise of their right of private defence of person and property.

60. Learned Public Prosecutor, however, on the other hand argued with equal vehemence that the land was in possession of the complainant party and the appellants trespassed, uprooted the crops of the complainant party and caused death of Moti Ram as also caused number of injuries to as many as 20 persons. He contends that the appellants have rightly been held guilty and convicted by the Trial Judge and the order of conviction and sentence needs no interference by this Court.

61. Learned Public Prosecutor contends, in the alternative, that if the fight had not taken place in the land known as Beedwali but in the fields of Ramnath, then in that case, it will be a case of free fight and therefore, the appellants cannot escape at least the liability of individual acts committed by them.

62. We have heard learned counsel for the parties and with their assistance examined records of the case. As mentioned in opening part of this judgment, the crucial question that needs determination in the present case is as to who out of two i.e., the complainant or the accused party was in possession of the land.

63. There is no reference or Khasra number of the land where the occurrence had taken place, in so far as the FIR is concerned. All that is mentioned is that the appellants with others came and started to plough/uproot their crops. There is no reference also as to how and in what manner the land belonged to the complainant party. There is no reference either as to when the complainant party came into possession of the land and since when it was cultivating the same. There was also no reference as to what crop had been sown by the complainant party and since when. In the deposition made by the witnesses, however, it has been the case of the complainant party that the incident had taken place in Beedwali land. Pooran Mal, the first informant, stated that in the morning at about 11-12 on 29.9.1993, he along with others was working in their common land known as Beedwali. He also stated that in half of their fields, there was crop of ground-nut whereas in the remaining land, there was crop of Tarameera which they had sown 15-20 days ago. The land known as Beedwali was also 60-62 Bighas out of which in 35 Bighas the crop was standing whereas the remaining land was lying vacant. He also stated that ever since he became the age of discretion, they were in possession of the land. With regard to the documents of ownership and possession, he however stated that he had not seen the same on that day as the same were in possession of their father. He would not know the Khasra No. of the land of Beedwali. The original documents, he stated, were with them and copies thereof were given to the police. He denied for want of knowledge that Beedwali land was allotted to Chhitar, Nonda and Buddha in 1978. Buddha might have sold it to Laxminarain and Bhagwan Sahai and others for a sum of Rs. 71,000/- on 10.11.1990. He also denied for want of knowledge that out of the land of Beedwali, Chhitar and Nonda had sold some land by virtue of registered sale deeds. He also denied for want of knowledge if the land in dispute was first mutated in the name of Chhitar, Nonda and Buddha and thereafter, in the name of accused. He denied the suggestion that earlier Nonda, Chhitar and others were cultivating the land in dispute and after they sold it, accused were in possession of the same. In cross-examination, he added another dimension to the case when he stated that the occurrence had taken place in the field of Ramnath which was in Beedwali fields. Kailash who was examined as PW-2, in his cross-examination stated that 13 persons had their land in the fields known as Beedwali. He would not know the Khasra Nos. of the field in their occupation. It is interesting to note that he too stated that the fight had taken place in the field of Ramnath which was measuring 45 Bighas. The ownership of the land where the fight had taken place thus, according to him, was in the name of Ramnath. Rukmani (PW-6) in her cross examination stated that the fight had taken place in the vacant land which adjoins the land which is known as Beedwali land. She admitted that the cultivation was that of accused party and they were saying that the land belongs to them and they will sow it whereas the complainant party was saying that the land belonged to them and they will sow it. Ramjilal examined as PW-7 added yet another facet to the case when he stated in his cross- examination that accused Revad and others, deceased Moti, he and others had share in the land. He admitted that there was fight between both the parties and whereas the accused party was saying that they will sow the land, he was saying that he will sow the land. Gubdu @ Ramavatar examined as PW-8 would not remember Khasra Nos. of the land of Beedwali but he admitted that they had not purchased the land of Beedwali nor the same was allotted to them. It was an unallotted land. Ramjilal examined as PW-10 stated in his cross-examination that they were not paying rent of the land in dispute. Kajod examined as PW-12 stated in his cross examination that there were 13 fields in Beedwali and fight had taken place in the land of Ramnath which was in Beedwali fields.

64. The evidence with regard to the venue of occurrence is discrepant even though a finding has to be returned that by and large, it is the case of the complainant party that occurrence had taken place in the land known as Beedwali. This observation made by the Court is supported from the fact that whatever documentary evidence was led by the prosecution, it pertained to the land entered in Khasra No. 116/1 and No. 116/4 which was subject matter of allotment to Buddha, who later sold it to accused Laxmi Narain, Bhagwan Sahai. Reference at this stage may be made to Ex.P.79, Ex.P.80 and Ex.P.81. Vide order dated 12.4.2001 (Ex.P.79) the Board of Revenue while setting aside the order of the Additional Commissioner, restored the order of Collector. The details of this litigation have already been given while making mention of the prosecution evidence. Suffice is to say at this stage that the prosecution led documentary evidence with regard to the exact description of land and therefore, even though oral evidence with regard to the venue of occurrence may be somewhat discrepant, it has to be held that the occurrence had taken place in some part of the land comprised in Khasra No. 116/1 or No. 116/4. Who was the owner and in possession and the effect of documents Ex.P.79, Ex.P.80 and Ex.P.81 would be discussed later. Ex.P.80 and Ex.P.81 once again pin point the land subject matter of dispute where the occurrence had taken place and on the basis of these documents as well, it shall have to be said that as per the prosecution version the occurrence had taken place in some part of the land comprised in Khasra No. 116/1 or No. 116/4.

65. In so far as the appellants are concerned, it has been their consistent case right from inception that they were the owners and in possession of the land entered in Khasra No. 116/1 and No. 116/4 by virtue of allotment of land first made to Buddha and thereafter sale of land by way of registered sale deeds to them by the allottees named above.

66. Once it is sure on preponderance of evidence that the occurrence had taken place in some part of the land entered in Khasra No. 116/1 or No. 116/4, known as Beedwali, time is now ripe to evaluate evidence so as to give a finding on the basis of material on record as to who was in possession thereof. The prosecution, it is significant to mention, did not choose to bring on record any revenue records, be it Jamabandis, Khasra Girdawaris, Khatauni or any other relevant document. In so far as oral evidence is concerned, the same as detailed above is quite discrepant. The first informant Pooran would have no documents showing ownership of the land and would still assert that the same were handed over to the police. The police surely has not placed any document of title of the land on record but for orders passed by the revenue officers Ex.P.79, 80 and 81. Even though most of the witnesses stated that the complainant party was in possession of the land, some of the witnesses admitted possession of the accused. In matters like the one in hand, ownership and possession cannot be held on the basis of oral evidence. It becomes thus necessary to evaluate documentary evidence brought on records by both the sides. In so far as prosecution is concerned, as mentioned above, three documents Ex.P.79, Ex.P.80 and Ex.P.81 have been brought on records of the case. Ex.P.79 as mentioned above is an order passed by the Board of Revenue. This litigation was between Lallu and Badri from the side of complainant and Laxmi Narain, Buddha, Bhagwan Sahai on the side of the accused. Lallu and Badri had filed revision against the orders passed by the Additional Commissioner dated 15.11.95. The dispute was with regard to the mutation of the land. The original authority, it appears, had sanctioned mutation in favour of the vendees from the allottees. The order aforesaid it further appears was challenged by the complainant party before the learned Collector who remanded the case to the original authority for determining the matter afresh. Aggrieved, the accused party, filed a revision before the Additional Commissioner, Jaipur which was allowed. It is against this order that the matter was carried before the Board of Revenue. It was urged there on behalf of the complainant party that they were in possession of the land which was allotted to Buddha in 1978 but Buddha had no proof of allotment. He sold the land to Laxminarain but once there was no allotment made in the name of Buddha, there could not be a proper sale in favour of Laxminarain. On behalf of the accused it was, however, urged that the land was allotted to Buddha in 1978 mutation whereof was entered and lateron mutation was also entered from Gair Khatedar to Khatedar and the land was then sold in 1990 to Laxminarain and mutation was also entered in his name. The learned Board of Revenue observed that it had first to be seen whether there was some adequate proof regarding allotment of land to Buddha. The learned Additional Commissioner was not justified in passing the order in favour of the allottees or their vendees and that the order of Collector was correct who while remanding the case had ordered taking of fresh decision. It was also observed that the learned Additional Commissioner should have seen whether there was some adequate proof of allotment of land to Buddha. The litigation aforesaid was with regard to proper allotment to the vendors of Laxminarain upon which, of course, the validity of the sale deed in favour of Laxminarain would depend. There is absolutely no clue from the order Ex.P.79 passed by the Board of Revenue as to who was in possession of the land. No evidence has been brought on record to show as to what happened pursuant to the order of remand passed by the Collector which was affirmed by the Board of Revenue while passing order Ex.P.79. Be that as it may, the litigation culminating into order Ex.P.79 was with regard to the ownership of land. Whereas the complainant party was asserting that no proper allotment had been made to the allottees, the accused party was urging to the contrary. There is no finding at all as to who was in possession of the land. This document, in considered view of this Court, cannot point towards possession of the complainant party on the land subject matter of litigation.

67. The other document Ex.P.80, as mentioned above, was dated 30.5.2000. The litigation was between Ramkishan, Ram Swaroop and Ramjilal on one side and Bhagwan Sahai and Chhitar allottees of land on the other side. The appellants or the co-accused were not a party to this litigation. Ram Swaroop and others had filed appeal against the order of allotment committee dated 9.8.78 vide which the allotment committee had allotted land to Chhitar. Even though by the time order Ex.P.80 came to be passed the land had been sold to the accused party, they were not arrayed as party respondents. The allottee, after receiving money/sale consideration had lost all interests in the land. He was summoned but did not appear. Ex parte proceedings were thus initiated against him. Number of grounds seeking setting aside of allotment were pressed into service. One of the grounds was also that the allottees were not in possession and the allotment was indeed cancelled but the allotment committee was directed to make allotment according to the rules. This document, in considered view of this Court, cannot be relied upon to determine possession of any of the parties for variety of reasons. It was not an inter se litigation between the complainant and the accused party. The allottee, after having sold the land would invince no interest and that is what precisely happened as he chose not even to appear despite service. In absence of any defence projected, naturally, whatever was to be urged on behalf of the complainant party had to be accepted. Such a document, in considered view of this Court, cannot be of any value to the prosecution in establishing possession of the complainant party. That apart, -the order does not depict the complainant party to be in possession even though such was an assertion made before the concerned court. The order dated 31.8.2000 Ex.P.81 is as good or bad as the order Ex.P.80. This pertains to litigation between Lallu Lal and Badri on one side and Buddha on the other side. Buddha was allottee of another piece of land in Khasra No. 116/4. Whereas the allottee of the land subject matter of order Ex.P.80 chose not to appear, Buddha in the matter aforesaid did appear but chose to give his consent to whatever was being urged by the complainant party. He himself prayed for setting aside of the allotment in view of the compromise that had been arrived between him and the complainant party. He went to the extent of admitting that he was not in possession of the allotted land and further that even before allotment, Lallu Lal and Badri were in possession. The counsel appearing on his behalf urged that the compromise should be accepted and that the allottee was not in possession of the land nor he wanted to keep the allotted land and therefore, the allotment should be cancelled. By the time Ex.P.81 came into being, the allottee had lost all interests as far before that he had washed off his hands by selling the same to the accused party. Order Ex.P.81 is a consent order and consent for passing order was given by a person who had no interest in the land. For parity of reasons given while discussing order Ex.P.80 it has to be held that even this document would not show that the complainant party was in possession. It, however, requires to be added that even though the allottee stated that the complainant party was in possessions, the Collector while however, dealing with the matter, did not accept it and rather ordered that simply on account of compromise arrived at between the parties, it would not be proved that the petitioner was in possession. He, however, ordered that if the petitioners may be in possession and have some right, even then, they should produce those documents before the concerned officer but they could not be given any relief on the basis of the compromise. Despite, therefore, that the allottee had conceded that the complainant party was in possession, the Collector did not accept the same and chose rightly that if they be in possession they should give proof of the same before the concerned authority. No reliance can at all be placed upon Ex.P.81 and in any case, on the basis of same, it cannot be held that the complainant party was in possession.

68. The appellants, while projecting their defence, asserted that the land had been allotted to Chhitar son of Chhotu and Buddha on 9.9.1978. Whereas Chhitar was allotted land measuring 8 Bighas 14 Biswas, Buddha was allotted land measuring 7 Bighas. Available on records are Ex.D.45 and Ex.D.46, vide which Chhitar son of Chhotu sold land to Chhitar and Sanwal-ram sons of Jhuntha Ram for consideration of Rs. 81,500/-. The other piece of land sold vide Ex.D.46 was from Buddha. He sold it Laxminarain and Bhagwan Sahai vide sale deed dated 7.11.1990. It was sold for a consideration of Rs. 71,000/-. The defence has also produced Ex.D.53 and Ex.D.54 which would show that on the basis of sale deeds referred to above, mutations were sanctioned in favour of the vendors named above. The mutation was entered by Patwari and authenticated by Kanoongo and then sanctioned by the Tehsildar. Details of these mutations have already been given. The defence also brought on records Khasra Girdawaris Ex.D.48, Ex.D.52, Ex.D.60 and Ex.D.61 for the period 1991-1994. As per these Khasra Girdawaris, the land entered in Khasra No. 116/1 and No. 116/4 is recorded in the name of vendees from the allottees named above. Details of these mutations have also already been given above. Jamabandi Ex.P.58 and Ex.P.59 pertaining to the land entered in Khasra No. 116/1 and No. 116/4 again show the accused to be in possession. Details of these Jamabandis have already been given above.

69. Beside documentary evidence, details whereof have been given, finding with regard to the possession could also be based upon depositions, if any, to be made by the concerned revenue officers and in particular Patwari as also the Investigating Officer. It is significant to note that Devaram, S.I. Police Station Dausa who was examined as PW-19 even though deposed that the site plan Ex.P.2 was prepared at the spot on 29.9.1993, in his cross-examination stated that the same was not prepared by him and he would not know Khasra Nos. of the land shown at mark ABCD in the site plan Ex.P.2. The mark ABCD is the spot where as per Ex.P.2 site plan the occurrence had taken place. This witness, however, stated that he was told Khasra Nos. of the land regarding which Khasra Girdawari of Samwat 2048 to 2051 Ex.D.87 was given to him. He also admitted that the trace map Ex.D.9 was also given to him by the Patwari. Patwari had also given copies of Khatauni Ex.D.10. Even though, therefore, all these documents were handed over to him by the Patwari, he did not choose to place the same on records and the defence had to bring those documents on records. Surely, those documents were not placed on records by the prosecution as the same would have negated the case of the complainant party with regard to their possession. This witness further admitted that he had not taken into possession Jamabandi of the land in dispute. Right from the beginning the Investigating Officer knew that both the parties were asserting their possession, and yet the Investigating Officer chose not to obtain Jamabandis of the land which would have gone a long way to prove possession of either of the parties. This was done for obvious reason that if these documents were taken in possession, the theory propounded by the complainant party that they were in possession would have exploded. This witness even did not record statement of co-sharers of the land as he thought it was not necessary to do so. He made no investigation as to whether the land had been sold by way of registered sale deeds. He admitted that he had not recorded the statement of Patwari and also had made no note with regard to the enquiries made by him from the Patwari. Patwari was not even cited as prosecution witness. It is a case of totally tainted and one sided investigation with oblique motive to eschew and scuttle evidence that may advance case of the accused and prop up the prosecution version. Non examination of Patwari in a case of this kind, non recording the statement of the co-sharers of the land, non-collection of relevant revenue documents and not producing whatever revenue documents might have been taken into possession would go a long way to show that the complainant party was not, in any case, in possession of the land. This Court would refrain from giving any finding with regard to the owner-ship of the land as it is not necessary to do so for the purpose of deciding this matter. It is too well settled that even a trespasser can resist forcible dispossession and if in the process, he might oust one who may endeavour to evict him, he would surely have right of private defence of person and property. It is also well settled that reasonable apprehension of being caused a simple hurt would give right to a person to cause grievous hurt in exercise of his right of private defence of person and reasonable apprehension of being caused a grievous hurt would clothe a person with the right to cause death. It is again too well settled that right of private defence of property and person cannot be measured in golden scales or in other words, it cannot be modulated step by step. It is also too well settled that burden of proving that the alleged offence falls to the exception of exercise of right of private defence lies on the accused but the said burden can be discharged on the basis of preponderence of probabilities and the accused has to only satisfy the standard of a prudent man. It is once again too well settled that where the accused had pleaded right of private defence and might have sustained injuries in the same incident in which members of the prosecution party have sustained injuries and if there is no explanation for their injuries given by the prosecution, the Court cannot lightly ignore such a plea.

70. While applying the law as so well established for which there is no need even to refer to any judicial precedents, it can well be said in the present case that ten of the members of the accused party sustained multiple injuries in the same incident in which one person from the side of the complainant died whereas 20 others received injuries. At least, one of the accused also sustained grievous injury. Neither in the FIR nor in the depositions made by the eye witnesses before the Court, injuries on the person of the accused have been explained. But for one or two witnesses, other witnesses have denied receipt of injury by the accused party. There is no mention of injuries received by the accused party in the FIR as well. The prosecution has brought no adequate evidence which may prove that the complainant party was in possession of the land. The ocular evidence led by prosecution as fully detailed above, is discrepant; so much so one witness even admitted that the accused party was in possession of the land. In so far as documentary evidence is concerned, once again the prosecution failed to bring on record the relevant evidence and in particular, Jamabandis and Khasra Girdawaris which would have gone a long way in proving possession. The relevant witnesses who could depose with regard to the party in possession of the land, like Patwari, were not examined. The Investigating Officer chose to collect only that evidence which might favour the complainant party. Despite availability of revenue record, he chose not to collect it and whatever evidence he collected in that behalf, was not produced in the court. So far as Ex.P.79, Ex.P.80 and Ex.P.81 the only documents on the basis of which an endeavour has been made to show that the complainant party was in possession are concerned, these documents have been discussed threadbare in the earlier part of the judgment and a finding has since already been recorded that the said documents did not show that the complainant party was in possession. The appellants, on the other hand, have led sufficient evidence to show that they were in possession of the land where the occurrence had taken place. In any case, the defence has placed such material on record that on the basis of the same a finding can well be recorded that on preponderence of probabilities, the plea taken by the accused appellants appears to be plausible. If that be so, the plea of right of private defence of property and person has to be accepted and the appellants have to be given benefit of doubt. Reference in this connection be made to a judgment of the Supreme Court in Kashiram and Ors. v. State of MP (2002) 1 SCC 71.

71. In the facts and circumstances of the case, this Court is of the firm view that the appellants caused death of one Motiram and injuries to 20 others in exercise of their right of private defence of person and property. They not only had a reasonable apprehension of being caused grievous hurt but one of them was actually caused grievous hurt. The right of private defence of person and property exercised by them cannot be said to have been exceeded as well. They would thus be entitled to acquittal by giving them benefit of doubt.

72. Consequently, both the appeals bearing No. 1643/2002 and No. 1673/2002 are accepted. Order of conviction and sentence recorded against the appellants by the learned Additional Sessions Judge dated 9.12.2002 is set aside. The appellants be released forthwith if not required in any other case.

73. The complainant party was also put to trial on the basis of a cross case lodged by the accused party. The trial conducted against the complainant party resulted into acquittal against which Criminal Revision No. 305/2003 has been filed. Learned counsel appearing for the parties are ad idem that evidence of one case cannot be read into another. Learned counsel defending the appellants states that he shall not be able to seek conviction of the respondents in criminal revision on the basis of evidence led in that case. Criminal Revision No. 305/2003 is also dismissed.


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