Mahendra Bhushan, J.
1. This is a State appeal Under Section 417, Cr PC (1898) against the judgment of the learned Additional Sessions Judge, Jhalawar acquitting all the four accused-respondents of the charges under Section 302/34 and 307/14, IPC.
2. When the appeal was pending in this Court, the two accused-respondents, Dar mal and Kedarlal (2 & 3) expired An application was filed by the learned Advocate for the accused-respondents on 29-12-79, informing this Court about the sad demise of these accused-respondents. As it is an appeal against an acquittal under Section 417, Cr CP 1898, it finally abates under Section 431, Cr P.C. (1898), which corresponds to Section 394(1), Cr C.P. (1973, so far as the accused Danmal and Kedarlal are concerned. We shall, therefore, confine ourselves to the State Appeal so far as the other accused-respondents Chandalal and Bhawani Shankar (1 and 4) are concerned.
3. For the disposal of this State appeal, some facts have to be stated which are as follows. There is a field Almashoer 'Jogmandi-wala Khet' situated in village Manohar Thana' District Jhalawar on the banks of river 'Kali Khad' measuring about 20 Bighas Litigation was pending for the last about 10-12 years in between ore Gopal Singh (one of the deceased persons) and accused Kedarlal relating to that field. A Civil Suit No. 41/71 was filed by Gopal Singh (deceased) against Kedarlal in the year 1971 in the Court of SDO Aklera and that court issued an exparte interim injunction order on 18-8-71 restraining accused Kedarlal from interfering with the possession of deceased Gopal singh on the field. But, the exparte and interim injunction was vacated by the court of SDO, Aklera on 21-6-72, and the suit remained pending.
4 On June 25, 1972, in the early hours of the morning Gopalsingh (deceased) along with his son Bahadursingh (also deceased), Mohan Nai, a labourer and others went to the field in dispute and maize was swon and they returned to their houses At about 10 A.M Bahadursingh (deceased) was returning from the market, and he informed Madansingh (FW 13) that he had seen the accused persons armed with 'Pharsis' and 'Kulharis' going towards the disputed field. Bahadursingh also informed the said Madansingh that he will go towards the field to see as to for what purpose the accused persons had gone there. Madansingh restrained him from going to the field, but Bahadursingh could not resist himself and went towards the disputed field. He was accompanied by Raghubirsingh (PW 12). Others, namely, Gopal Singh (deceased; Ratansingh (PW 11), Bhagwan Singh (PW 9) and Madan Singh (PW 13) also followed them. No sooner, Bahadur Singh reached near the disputed field, all the four accused respondents attacked Bahadursingh with their respective weapons Danmal, Bhawani Shankar & Kedarlal were having 'Pharsis' and Chandlal accused was armed with a '(sic)'. The accused persons also gave beating to Raghubirsingh, Gopalsingh, Ratansingh and Bhagwansingh by their respective weapons, Madansingh (PW 13), who witnessed the occurrence from a distance and did not go nearby the accused persons, as they had threatened him, went to P S. Manohar Thana and lodged the FIR (Ex P 1) at 11 A.M. A case was registered against the four accused and Head Constable Zahir Khan (PW 14) reached the spot He saw that Bahadursingh was lying dead and Gopalsingh, Raghubirsingh and Ratansingh were lying injured. He made arrangements for sending the injured persons to the hospital and prepared the inquest report (Ex P 3) and other memos at the spot. Gopalsingh also died as a result of the injuries on the same evening in the hospital and his inquest report (Ex P 6) was also prepared. In the evening of 26-6-72, Madansingh (PW 15) took the investigation, arrested the accused persons and on their information, 'Kulhari' and 'Pharsis' were recovered.
5. Dr. Mohammed Umar Ansari, conducted the post-mortem examination on the dead bodies of Bahadursingh & Gopalsingh and also examined the injuries of Raghubir Singh, Ratansingh and Bhagwansingh, was examined in the committing court, and his statement recorded in the committing court, was admitted into evidence in the sessions trial under Section 509, Cr PC (1898), and was marked Ex P 35. Dr. Ansari on conducting the postmortem examination found as follows:
1. Incised wound on the left ear to bulk on the lower part 1/2' X 1/4' X 1/8'.
2. Incised wound on the left anterior superior Iliac Spine horizontally 1' X 1/4' X 1/8'.
3. Incised wound on the right leg anteriorly 2' X 1/4' X 1/8', about 8' below the right patella.
Internal Examination Head and Neck:
1. One incised wound on the head 2' X 1/2' X 1/2' below the occipital protuberance.
2. One incised wound 2' X 1/2' X 1/2' obliquely on the head about 2' above the occipital protuberance.
3. Membrance of brain were swollen and brain was hyperdemic. There were multiple fractures of the occipital bone in the middle.
6. In the opinion of the doctor, the cause of death was head injuries, which were sufficient in the ordinary course of nature to cause death. The injuries were received within 6 to 12 hours prior to post-mortem examination.
1. One contusion on the lateral aspect of left hand 2' X 1' just near the elbow joint vertically.
2. One contusion on the posterior aspect of upper arm of left hand 2' X 1/2' vertically in the middle of upper arm. There was a fracture of left Humerous in the middle.
1. One incised wound 4' X 1/2' X 1' on the head over the left parietal bone obliquely near the parietal protuberance.
2. One incised wound vertically 2' X 1/2' X 1' on the right parietal bone near the protuberance.
3. One incised wound vertically 2' X 1/2' X 1/2' on the head 1' above the occipital protuberance.
7. There were multiple fractures of the right and left parietal bone. Membrance was swollen.
8. In the opinion of the Doctor, death was due to come as a result of head injuries, and all the three head injuries were sufficient in the ordinary course of nature to cause death.
9. On 25.6.72, on examining the injuries of Bhagwan Singh, Raghu and Ratan Singh, the Doctor found as follows:
One incised wound 3' X 1/4' X 1/8' on the head obliquely curved 1st, away of the left parietal protuberance. The injury was- caused by sharp weapon within duration of 6 to 10 hours.
1. One incised wound 2' X 1/4' X 1/8' on left index finger vertically interiorly on the lateral said.
2. One incised would 3' X 1' X 1/8' on the right thigh about 2' away the anterior superior Iliac Spine Obliquely.
3. One incised wound 2' X 1' X 1/4' on the head in the middle between the parietal protuberance vertically.
4. One contusion 3' X 1' on the posterior aspect of right fore-arm on the radial side in the lower half.
5. One bruise 14' X 1' on the back obliquely starting from the upper part of the right shoulder to the anterior superior Iliac Spine.
10. Injuries 1 to 3 were caused by sharp weapon and were simple. Injuries 4 and 5 were caused by blunt object and were simple.
1. Incised wound 3' X 1/4' X 1/8' on the head vertically near the left parietal protuberance.
2. Incised wound 2' X 1/4' X 1/8' on the head vertically in between the partietal protuberance.
3. Incised wound 5' X 1' X 1/2' on the head 1' above the occipital proiuberance.
4. Incised wound 1' X 1/4' X 1/8' on the head vertically on the right parietal protuberance.
5. Incised wound 1 1/2' X 1/4' X 1/2' on the head vertically 1' above the right parietal protuberance.
11. All the injuries were simple and were caused by sharp object within duration of 6 to 10 hours.
12. The trial court framed charges under Section 302/34 and 307/34, IPC against the accused-respondents. They did not plead guilty to the charges and claimed to be tried.
13. On behalf of the prosecution, 15 witnesses were examined and 39 documents were exhibited. The accused person were examined under Section 342, Cr PC (1898), They have denied the prosecution allegations The accused Kedarlal came out with a plea that he had won the land litigation from the High Court and he was in possession of the land in dispute on the day of occurrence. Danmal came out with a place that under the orders of the High Court, possession of the land in dispute was delivered to them about a year ago, and, therefore, Gopalsingh and his sons were inimical towards them. On the date of occurrence, they had gone on the field in dispute, and Gopal singh and Ratansingh armed with 'Pharsis', Bhagwansingh with a sward and Raghubirsingh and Bahadursingh armed with lathis committed criminal trespass in their field. Bahadursingh gave a lathiblow to Bhavani Singh. He entreated them not to beat. Bahadursingh further gave a lathi blow to him. All the five encircled them and attacked. They (Danmal and others) had also lathis and tried to save themselves. A lathi also came into their hands and some body might have received injuries with it. In short, the plea of the accused persons is of light of private defence of person and property. The accused persons did not examine any witness in defence, but placed reliance on Ex D.3, certified copy of the order of S.D O., Aklera dated 21.6.72 vacating the injunction order issued earlier in favour of Gopalsingh (deceased).
14. The first question, which needs answer, is as to who was in possession of 'Jogmandi wala Khet' on 25.6.72, When the occurrence took place ?
15 The learned trial court has concluded that on that day, it were the accused persons who were in possession of the field in dispute. Deceased Gopalsingh had, no doubt, filed a suit against Kedarlal in the court of SDO if Aklera and an expanse injunction order was issued in his favour on August 18, 1971 restraining him from interfering with his possession. Ex D 2 is the certified copy of that order, but this injunction order was vacated on 25-6-72, as is apparent from Ex D 3, certified copy of the order of SDO Aklera. It appears further from a perusal of Ex D 2 that Gopalsingh claimed himself to be the adopted son of Gulab Bai, who had transferred the land in dispute to some body else without his concurrence and knowledge and, therefore, he filed a suit for injunction and obtained exparte injunction order. But. Ex D 3 makes it clear that the exparte injunction order had been secured by concealing facts and taking into consideration the fact that possession had been delivered to Kedarlal under the orders of this Court in some case, the exparte injunction order was vacated All that has been mentioned in the FIR (Ex. P. 1) is that litigation was pending relating to this land in between Kedarlal and Gopal singh, but it is not mentioned that Gopilsingh was in possession of the disputed land. Ratan singh (PW 11) has, no doubt, stated that they were in possession of the field in dispute since 1971 but in view the order Ex D. 3. Under which the exparte order was vacated on 21-6-72, i.e., about four days prior to the occurrence, statement of Ratansingh cannot be relied upon No documentary evidence has been produced on behalf of the prosecution, which can go to show that on 25-6 72, it were Gopal singh and others who were in possession of the land in dispute. It appears that under the garb of exparte injunction order, Gopalsingh wanted to create an impression that he was in possession of the land in dispute, and on the date of occurrence, i.e., 25-6-72, in the early hours he and ethers had gone on the land in dispute and had sown maize, but they had no right to do so. If the injunction order had been vacated on 21-6-72, it cannot be said that under bonafide claim of right Gopalsingh and others went to the field in dispute. Under these circumstances, the learned trial court rightly concluded that the prosecution has failed to prove that Gopalsingh and others were in possession of the land in dispute on 25-6-72 when the occurrence took place.
16. It may be stated here that it is not disputed by both the parties that the occurrence took place on the field in dispute. On behalf of the prosecution, besides the injured person who have been produced as eye witnesses to the occurrence two more witnesses Raghunath (PW 8) and Kan Singh (PW 10) were produced as the alleged eye witnesses But, the learned trial court has concluded that these witnesses did dot actually witness the occurrence, and, therefore, they cannot be relied upon The reasons for this conclusion are contained in para 15 of the judgment of the trial court. The names of these two witnesses are not mentioned in the FIR Ex D 1), which was lodged immediately after the occurrence, & instead the names of Onkar Phooli and Jagannath are mentioned as eye witnesses. Therefore, the learned trial court rightly disbelieved the statements of these witnesses.
17. But, even if the statements of these two witnesses are excluded, still there remains the evidence of PW9 Bhagwansingh, PW 11 Ratansingh, PW 12 Raghubirsingh, all the three injured persons, and PW 13 Madansingh. We have already mentioned the injuries of these three injured persons above. Bhagwansingh (PW 9) received one incised wound, Raghubirsingh (PW 12) received as many as 5 injuries, out of which three were incised wounds, and Ratansingh (PW 11) received as many as 5 injuries, all incised wounds The presence of injuries, which in the opinion of the doctor Mohammed Umar, contained in his statement Ex. P 35, were of about 6 to 10 hours duration, leads assurance to the presence of the witnesses at the time of occurrence. Raghubirsingh (PW 12) has stated that he and Bahadursingh were armed with lathis. He also states that in self defence he and Bahadursingh had used lathis All these witnesses have stated that three accused Chandalal, Danmal and Bhawani Shankar caused injuries with their respective weapons to Bahadur singh, Gopalsingh and others. None has stated that accused Kedarlal inflicted injuries on anybody. These three accused-respondents were armed with sharp weapons, Bhawani Shankar and Danmal with 'Pharsis' and Chandalal with a 'Kulhari'. They caused injuries with their respective weapons to deceased Gopal Singh and deceased Bahadursingh, and to three above named injured persons.
18. The learned Additional Sessions Judge has concluded that the statements of the prosecution witnesses that they went one by one to the field cannot be relied upon, more so, when they followed each other and reached the place of occurrence almost simultaneously. To us also, it appears that Gopalsingh and others went to the field in dispute and had sown maize in the early hours of the morning. The accused party having come to know of it reached the field in dispute and there the occurrence took place. We are, therefore, of the opinion that it can be said that deceased Gopal Singh and Bahadursingh received injuries at the bands of the accused, and three injured persons also received injuries, as described above. We may like to observe here that Dr. Umar in his statement (Ex. P.35) has given the external and infernal injuries of Gopal Singh and Bahadur Singh separately, but if the statement of Dr. Umar along with the post mortem report is locked into, it will be clear that the three injuries of Bahadursingh and two injuries of Gopal singh which have been described as internal injuries, are a' a matter of fact external injuries. It is really strange that neither the Public Prosecutor nor the Court made any attempt to recall the doctor Mr. Umar to get a clarification. But, a look at his statement (Ex P.35) will show that two injuries described under the heading 'Internal Injuries, head and neck, and thereafter it has been mentioned that there more multiple fractures of occipital bone in the middle. It has been clearly mentioned that both the injuries were on the head. Not only this, before describing the internal injuries of Gopalsingh in additional remarks, it has been clearly mentioned that there was bleeding present from the incised wound of she head. Therefore, we are of the opinion that the two injuries of Bahadursingh and 3 injuries of Gopalsingh, described as internal injuries, are factually external injuries. We are, therefore, of the opinion that deceased Bahadursingh received 5 external injuries by sharp weapon, including the two on the head, and Gopal Singh received 5 injuries including the three on the head There were multiple fractures of the right and left parietal bones in the case of Gopalsingh and multiple fractures of the occipital bone in the case of Bahadursingh. It can, therefore, be said that Gopalsingh and Bahadursingh died as a result of injuries received at the hands of the accused. The accused persons were in possession of the field and, therefore, they had a right subject to the restrictions contained in Section 99 to defend their property against the act of Gopalsingh and others, which was an offence of criminal trespass.
19. The case of accused persons is that Gopalsingh and others came together, they were armed with sharp and blunt weapons and they caused injuries to Kedarlal. The accused persons, therefore, caused injuries in self-defence. Two of the accused persons have also received injuries. Bhawani Shanker and Danmal accused received the following injuries as contained in Ex. P.21 and P. 22.
1. Ecchymosis 2' X 1/2' vertabral on the back over left side. Simple and caused by blunt weapon.
2. Ecchymosis 1 1/2' X 1/4' transverse over the left scapular region. Simple and caused by blunt weapon.
3. Ecchymosis 4' X 1/2' over the deltoid region of left arm. Simple and caused by blunt weapon.
4. Ecchymosis 1 1/4' X 1/2' over the left shoulder. Simple and caused by blunt weapon.
Danmal accused had only one linear abrasion 2 1/4' in length on the outer side of right elbow with pus in the middle. The injury was simple and caused by blunt weapon.
20. The question, therefore, is as to whether the accused persons had exceeded the right of private defence of property and person We have already said above that the injunction order land been vacated on 21-1-1972, and the occurrence took place on 25-6-1972, and further that no crops were standing of the accused-respondents on that day on the land in dispute, and Gopal Singh and others had sown Maize crop in the early hours of the morning. Under Section 99 IPC, which contains limitations to the exercise of right of private defence of person or property. The right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. The right of private defence of property extends to causing any harm other than death, if the offence, the committing of which or the attempting to commit which occasions the exercise of right of private defence is criminal trespass. Therefore, the right of private defence of property in this case did not extend to the causing of death. Even otherwise, the force used is much disproportionate to what the occasion demanded.
21. The learned Additional Sessions Judge has extended the right of private defence of person to accused person, and he had observed that the complainant party was aggressor and it is not possible to believe that both the parties went unarmed. Ore of the considerations, why the right of private defence is given is that the injuries of accused Bhawani Shanker and Danmal were got examined only on 29-6-72, and it was done intentionally, as the S.H.O. wanted the injuries to heel up. The S.H O. (PW 5) has clearly stated that the doctor was not available earlier and, therefore, the injuries of accused persons were get examined on 29.6.72. If the arrest memos of these accused persons (Ex P 30) of Bhawani Shanker, and (Ex P 31) of Danmal are looked into, it will be clear that there is a mention in Ex. P 30 that there was an injury 6' long and 4' wide on the left shoulder and there was a swelling on the left elbow, and an injury on the back, left side. In Ex P. 31, there is a clear mention that there was an injury on the left elbow. It can, therefore, be said that even at the time of arrest the number of injuries was the same, which was found by Dr. Umar on Bhawani Shanker and Danmal. The injuries of these two accused persons were minor. No doubt, even an assault as may reasonably cause the apprehension that death or grievous hurt will otherwise be the consequence of such assault, gives a right of private defence of body, which extends to causing of death as well But, we have already given the number of injuries to two deceased persons Gopalsingh and Bahadursingh, and three injured persons, Bhagwansingh (PW 9). Ratansingh (PW 11) and Raghubirsingh (PW 12). We are, therefore, of the opinion that the accused persons exceeded the right of private defence of their person. Their injuries are of minor nature and the force used by them is much disproportionate than the occasion demanded, and they caused much more harm than was necessary for the purpose of defence. We may refer here to Baljitsingh and Anr. v. State of U P. : 1976CriLJ1745 . In that case, the secured party was proved to be in actual possession of the disputed land after its purchase and were sought to be dispossessed by the complainant party, which trespassed en the land armed with lathis. Placed in this situation, the accused party tried to defend their person as well as property, and in doing so some of them also received injuries at the hands of the complainant party. It was held that the accused persons exceeded the right of private defence and they were convicted Under Section 304 I read with Section 34 IPC The learned Advocate for the accused has sought to distinguish this authority on the ground that in that case the deceased received as many as 7 injuries resulting in his death and, therefore, it may be said that the accused persons formed a common intention at the spur of the moment, and the beating was administered in furtherance of the common intention of the accused persons. According to the learned Advocate, in the instant case, when the accused persons were exercising their right of private defence of property and person, unless their evidence as to who from amongst the accused persons is the author of the fatal injury, none of them can be convicted vicarously by pressing into service Section 34, IPC. In support of this submission, the learned Advocate has placed reliance on State of Bihar v. Nathu Pandey and Ors. : 1970CriLJ5 , Gottipulla Venkatasiva Subbrayanam and Ors. v. The State of Andhra Pradesh : 1970CriLJ1004 , Holim Miyan and Ors. v. The State of Bihar : 1971CriLJ1299 , Jogindro Ahir and Ors. v. The State of Bihar : 1971CriLJ1285 and Hathi Singh and Ors. v. State of Rajasthan (1970) 4 SC 340 . But to our mind, none of these authorities applijs to the fact of the instant case. We are of the opinion that even if in a case the accused persons are in possession of the land & the complainant party commits trespass with the common intention inflict injuries or to cause death, can be formed hastily and at the spur of the moment. It will depend on the conduct of the accused persons at the time of occurrence, nature and number of injuries inflicted by them and the weapons used, nature of the assault and other factors. We can do no better in to refer to Baljitsingh's case In the instant case, there is the evidence on record that the accused respondents Danmal & Kedarlal (both deceased) and Chandalal and Bhawani Shanker were armed with sharp edged weapons and used injuries described above with sharp edged weapons to the deceased & injured persons. It can, therefore, be said that the common intention of the accused persons developed at the spur of the moment hastily to cause death of Gopalsingh and Bahadursingh, and the beating was administered to them and others in furtherance of the common intention of the accused persons. Therefore, the accused persons are liable to be convicted by virtue of Section 304/34 IPC.
22 It is urged by the learned Counsel for the accused respondents that it is an appeal against acquittal and if two views are possible of the evidence on record, this court is slow to interfere with them. We are conscious that we are dealing with an appeal against acquittal. But, the learned Additional Sessions Judge has not discussed as to whether the accused persons exceeded their right of private defence or not. After going through the judgment, we are of the opinion that the conclusions arrived at in acquiring the accused persons are not reasonably possible.
23. We, therefore, accept the appeal, set aside the acquittal of accused persons Chandalal and Bhawani Shanker, and hereby convict accused Chandalal and Bhawani Shanker Under Section 304 Part I read with Section 34, IPC for the murder of Bahadursingh and Gopalsingh and sentence each of the accused respondents to undergo seven years rigorous imprisonment and to pay a fine of Rs. 100/-, or in default to further undergo three months R.I. The accused persons are on bail. The trial court shall take them in custody to undergo 'he sentence awarded or any remaining part thereof.