G.K. Sharma, J.
1. The State of Rajasthan has preferred this appeal against the judgment dated 20th December, 1974; passed by the Sessions Judge, Alwar, by which, the respondent accused persons have been acquitted ; of the offences under Sections 147, 148, 302, 325 & 149, IPC.
2. According to the prosecution, a report was lodged on 7th October, 1973, by one Mamchand, at about 12.30 P.M. at Police Station-Kot-kasim, District-Alwar, to the effect that in village-Hazipur, fields I bearing Khasra Nos. 203 and 208 were owned by real brothers Govinda and Mohan. Both the brothers had equal shares in those lands. One of the brothers, Govinda was fraudulently induced to transfer the land in favour of one of the accused, namely, Kishanlai and possession was also purported to have been given to purchaser. A sale deed was also executed with regard to this property. It is alleged that the lands of both these khasras were in their possession a id they were cultivating it, Under the colour of this purchase, all the accused persons, namely, Bhoopsingh, Kiihinlal, Ramnaraio, Rajaram, Ramswaroop, Sulan, Hanaram and SheoUl reached the said fields on the morning of 7th October 1973 and stated plough mg the same. At this, Mohan, who is the real brother of Govinda, went to them and told that they could not plough the land of his share. At this, the accused persons wanted to beat him (Mohan). So, he ran away and came to Mamchand, his nephew. Mohan asked Mamchand to accompany him to the fields, to get the actual partition effecicu as regaids his share in the said lands. At this, Mamchand and one Prabhu came to the fields along with Mohan to effect the actual partition. vVhen they reached there, the accused persons attacked them with lathis and Farsis. Mohan ran away from there. Mst. Manohawti sister of Mamchand; Mst. Santra wife of Mamchand; and Isbwar son of Mamchand's sister reached there and tried to rescue Mamchand and Prabhu The accused persons gave beating to these persons also, as a result of which, they sustained injuries. On hearing the cry, Hansram, Sriram and Prabhati also reached the scene of occurrence and intervened. Mamchand and Prabhu had sustained injuries. On this report, a case under Sections 147, 148 and 447, IPC, was registered against the accused persons, Mamchand, Mst. Santra and Mst. Manbhawti were got medically examined. Prabhu later on died in the General Hospital, Alwar, on account of the injuries received by him. The police then investigated into the matter.
3. The report lodged by Mamchand is Ex. P.1. After registering the case, Vimaldas, head-constable inspected the site and prepared a site plan Ex P.2 9th October, 973. From the soot, he seized and sealed bloodstained as well as plain earth vide memo Ex. P.15. From there, he also seized some pieces of broken 'Churians' (bangles) and a Mala, vide memo Ex P.16 - Kahshanker head-constable prepared the Panchnama of the dead body of Prabhu which is Ex. P. 3. He then sent a letter Ex. P 16 to the medic 1 officer for conducting the postmortem examination on the dead body of Prabhu Ex. P.17 is the letter which was deposed to the SHO, Police Station - Kotwali by the head-constable after preparing the Ranch-nana of the dead body of Prabhu. Mst. Santradevi was medically examined. Her injury report is Ex. P.9 Ex. P.19 is the X-Ray report of Mst. Sartradevi. The injury report of Mamchand is Ex. P. 7 and his X-P-y report is Ex. P. 23. The injury report of Mst. Manbhaoti is Ex. P.10: and her X-Ray report is Ex P.21, The injury report of Ishwar is Ex. P.8 ' The post-mortem report of the dead body of Prabhu is Ex P.11. The circle-officer on 12th October 1973 sent a letter to the medical jurist, Alwar, for some clarification about the injuries of Prabhu deceased and the weapor used by the accused persons. This letter is Ex. P.12. and on the back of this letter dated 13th October. 1973, the medical jurist has claiifkcl the position; and the endorsement A to Bon the back of this Jetti is made by the doctor Prahlad Swaroop himself. Ex. p.13 is the information sen to the SHO, Police Station-Kotwali, Alwar, about the death of Prabhu, son of Govinda. Accused Ramswaroop, Ramnarain, Rail am, Bhoopsingh and Hanaram were arrested vide arrest memo Ex. P.10 to Ex P.34. Accused Kishanlal and Sheolal were arrested vide arrest-memo Ex P.40 and Ex. P.41. Accused ramnarain, while in custody gave information for recovery of one lathi. This information is ex. P.25 On the basis of his information and at his instance, the lathi was recovered vide memo Ex. P.38. Accused Bhoopsingh, Hanaram and On the basis of this information and at their instance, the lathis were recovered vide memo Ex. P.39, 37 and 44. Accused Rajaram and Kishanlal also gave information for recovery of the Farsis, which are ex. P.28 and Ex. P.43 On the basis of this information and at their instance, the Farsis were recovered vide memo Ex. P.35 and Ex. P.45 respectively. Accused also gave information for recovery of a Jally vide memo ex. P.29. On the basis of this information and at his instance, the Jelly was recovered vide memo Ex. P.34. After usual investigation, the police submittedc a challan agaist the accused per on in the court of Munisf Magistrate. Kishangarh Bass, who commuted the accused persons for trial to the court of Sessions Judge, Alwar. The learned Sessions Judge framed the charges against the accused persons as under:
Name of accused - Charges under SectionsSheolal - 148, 302 or 302/149, 325 or325/149, IPC.Sultan - 148, 302 or 302/149, 325 or325/149, IPC.Ramswaroop - 148, 302 or 302/149, 325 or325/149, IPC.Bhoopsingh - 148, 302 or 302/149, 325 or325/149, IPC.Rajaram - 148, 302 or 302/149, 325 or325/149, IPC.Hansaram & Sheonarain - 148, 302 or 302/149, 325 or325/149, IPC.Kishanlal - 148, 302 or 302/149, 325 or325/149, IPC.Ramnarain - 148, 302 or 302/149, 325 or325/149, IPC.
All the accused persons pleaded not guilty and claimed trial.
4. To prove its case, the prosecution examined 17 witnesses. The accused persons in their defence, also examined 7 witnesses.
5. The contention of the accuse persons was that both the fields bearing khasra Nos. 203 and 208 had been agreed to be sold by Govinda to Bhoopsingh and Rajaram sons of Ramswaroop for a sum of Rs. 14,000/- under an agreement to sell dated 15th May, 1973. On this agreement to sell, Mamchand also put his thumb impression. The possession of the lands was handed over to them. At the of the registration, it was brought to their Knowledge that Govinda had one brother also, who never lived in the village and used to wander here and three. It was said that he was a mad man, So instead of getting the whole land of those khasras, registered, half of the land which was on the southern side, was got registered on 1st September, 1973. It was further alleged that from the date of agreement to sell, they were cultivating the southern half of khasra No. 208 and that, on the date of the alleged incident, Kishanlal, Bhoopsingh and Rajaram were ploughing this sough this southern portion of field of khasra No. 208; and that the other accused petitions were not present there.
6. After considering the entire prosecution evidence and hearing both the sides, the learned Sessions judge held that the accused persons bad right of private defence of their persons and property. It was also held that the complainant party was aggressive. While agreeing with the accused persons on the point of right of private defence of their persons and property, the learned Sessions Judge did not find them guilty of the offences levelled against them, and therefore, he acquitted all the accused persons. Against this judgment of acquittal, the State of Rajasthan has preferred this appeal.
7. The contention of the learned Public Prosecutor is that the revenue and the other records produced by the prosecution proves that the fields of ktursa Nos. 203 and 208 were in the joint-tenancy of Guvinda and Mohan, and therefore. be getting the sale-deed executed by Govinda only, they had no right of cultivation and that, the sale-deed Ex D1, cannot be used against Mohan It was also argued that the complainant party had gone to the said fields with a rope for the purpose of partition and that, they had no ulterior motive to attack the accused party. So, the accused had no right of private defence of their property against the complainant party. It was also argued that the intention of the accused persons was to forcibly occupy the and and they had gone there to the fields after making preparation for commission of offence. It was then argued by the learned Public Prosecutor that the learned Sessions Judge has erred in disbelieving the statements of the prosecution witnesses.
8. In reply to the above arguments of the learned Public Prosecutor, the learned Counsel for the accused persons argued that Govinda was cultivating the lands of khas'a Nos. 203 and 208 and he had entered into the agreement to sell these lands and some amount had already been paid on him and possession was hamded over to the accused persons. At the time of registration, it came to their knowledge that Mohan also bad share in those lands. So, the registration of the sale-deed was executed only with regard to half of the land of these khasra numbers on the southern side. As the possession was with them, they had a right to cultivate the said land. He argued that the complainant-party was the aggressors and they tried to unlawfully dispossess the accused persons from the said land, and that, as such, they had right of private defence of their person and property, and the learned Sessions Judge his correctly held so.
9. There is no dispute with regard to this fact that Prabhu, son of Govinda received injuries and was admitted to the hospital, where he died. According to the doctor's statement and the post-mortem report Ex P. 11, Prabhu died due to head-injury, fractures of skull and compression of brain, which were ante-mortem in nature. According to the doctor, the injuries were sufficient in the ordinary course of nature to cause the death. As such, it is not disputed that the death of Prabhu was homicidal in nature. The learned Sessions Judge also, after discussing the evidence, held as such We have also independently perused the statements of the eye-witnesses, the statement of the doctor' and the post-mortem n port; and we also hold that the death of frabhu was homicidal in nature.
10. It is also not disputed that Mamchand; Ishshwar; Mst. Sandtradevi; and Mst. Mabhaoti of the complainant party also received injuries. It is also on the record that accused Ramswaroop, Rajaram and Bhoopsingh also received injuries. It is also not disputed by the learned public prosecutor that the accused persons also were injured int eh alleged incident. There is nothing on the record which explains how the accused persons had any right of private defence of their person and peoperty. In this respect, we have perused the entire record; the statement of the prosecution witnesses as well as the defence witnesses; and also the documents held by the accused persons.
11. The contention of accused persons is that there were two fields bearing khasra Nos. 203 and 208 in village-Hazipur, and out of these fields, fields measuring 9 bighas and 15 biswas had been agreed to be sold by Govinda to Bhoopsingh and Rajaram, sons of ramswaroop for a sum of Rs. 14,000/-, and an agreement to sell was written on 15th Mays, 1973 by Swami Girdharlal petition-writer and it bears the thumb-impression of Girdharlal and signatures of two witnesses Mansa and Thawaria. Mam chand, son of Govinda also had put his thumb impression on this agreement to sell. According to this document, which has been produced be the defence, the entire land under these two khasra Nos. 203 and 208 had been agreed to be sold. Govinda had received a sum of Rs. 7200/- from the time of registration of the sale-deed which was to be done within three month. It is clear from this document that the purchasers had been put under actual physical possession, and thereafter, the purchasers were to cultivate a the said land. On the day when the limitation period of three months was the expire, i.e. on 14th August, 1973, the parties tried to execute and get registered the sale-deed. But, on account of srike by the government servants the deed could not be written. However, a further sum of Rs. 2869/- was paid by the purchasers and received by the seller Govinda and an endorsement to this effect was made on the back of the agreement to sell which was duly attested be two witnesses. After this, the purchasers came to know that the land was being owned by Govinda and his brother Mohan Jointly. Therefore, the final sale-deed which was excited on 1st September, 1973 purported to transfer only half share of each of the two khasra number, i.e. the southern half of both the numbers. This sale-deed was made on the name of case. This sale-deed also contains a clear recital that the purchaser had been put in physical possession of the vacant land through ploughing it. The seller in clear terms parted with all his rights of ownership and possession, and the purchaser was scribed as authorized to use the purchased land in any manner he liked. It was further written therein that in case any claim was made by anybody in respect of this land, the seller would meet the challenge and in the event of the purchased land passing out of the possession of the purchaser the purchased would be reimbursed to the full extent by the seller. This sale-deed after due exccution, was presented for refistration, before the sub Registrar; and was registrered according to law. This contention of the accused persons has been denied by Govinda and his son Man chand. They have even denied to have received any sale-proceeds from the purchasers. They have also denied that they had parted with the possession of the protions of these two fields. But in view of the document which is a registered sale-deed, the contention and plea taken by the sellers namely, Govinda and his son, Mamehdnd, is totally false. Govinda PW 9 has stated that he had not sold the field to any body. He has also denied to have executed the sale-deed. He has stated that agreement to sell was no doubt, executed, but he has denied to have received any am out from the purchasers Thus, looking to the document, which has been produced by the accused persons, and which is a registered-sale-deed, the statement of Govinda PW 9 appears to be completely a false statement Mamchand PW 1 who is the son of Govinda, in his statement, has admitted that a sale deed was executed, but, according to him, it was executed by Prabhu deceased. So, Mamchand has half-heartedly admitted this fact that same was executed. Bur, from a perusal of his statement, we come to the conclusion that he is an unreliable man and is a liar witness. He has denied that his father Govinda had agreed to sell this land for a sum of Rs. 14,000/-. He has also admitted that agreement to sell En. D.1 was executed and it bears his signature. Thus, he has also stated that no money was given to them as sale-proceeds of these khasra numbers. He has also denied that sale deed was registered for half portion of the khisra Nos. 203 and 208, by his father. The learned Sessions Judge has also disbelieved these two witnesses namely, Govinda and Mamcharid. he have also, after perusal of the statements of these two witnesses, are of the same opinion that both these witnesses are liars, and they have not come to the court with clean intention. There is n thing on the record to show that these khasra numbers 20 3 and 208 were in the names of Govinda and Mohan. The revenue record shows that the land is under the name of Govinda. It is also in the cross examination of Govinda PW. 9 that prior to this incident, he had got this land mortgaged with Shambhudayal Bhargava of Kotkasim, and that, he himself got it released from the said moitgaee. He has also admitted to have produced an agreement to sell, and has also stated that he had mentioned his father's name as Totaram instead of tetram at the time of writing this agreement to sell. It shows that Govinda is a most unreliable person and from the very beginning, his intention was not clear The 'Jamabandi' was in his name He also used to pay land revenue for the entire land. He had got the land mortgaged also in the past, and also got it redeemed. All this shows that Mohan had nothing to do with the land in question Even, apirt from all these facts, and even after executing the agreement to sell for the land, the sale-deed was executed for only half portion of the lands of khasra Nos 203 and 208, i.e. on the southern side Thus, it is cleat by proved and there is no manner of doubt on this point that the southern part i.e. half of khasra Nos. 203 and 208 was sold by Govinda to accused Kishanlal, through a registered sale-deed; and from the date of agreement to sale, the land was put in possession of the purchaser Thus, it is clear that the accused persons were in pos ession of this land on the date of the alleged incident and also prior to this. Even if it is presumed that lands under khasra numbers 203 and 208 were in joint ownership of Govinda and Mohan, Govinda has sold only half of these lands, and for that half share only, he got the sale-deed registered. This half portion of the laud was in possession of the accused persons, and on the date of the incident, they had gone to cultivate the half portion of the lands only. So, we do not understand as to what objection the complainant party could have raised about this half poition of lands. It was rightly sold to Kishanlal, and they were in their right to go and cultivate this land. If there was any grievance, to Mohan about the sale of this half portion of the lands by Govinda, then the only remedy was that he could go to civil court and get the sale-deed cancelled. Mohan, Mamchand and the others had no right to go to the field and interfere in the rightful possession of the accused persons. They had no right to ask them not to cultivate the said land and take the law in their own bands. Had they had any grievance about the partition, then they could go to the civil court and get the sale-deed ineffective or cancelled. They had no right to go to the field with a rope and check the accused persons from exercising their rightful possession and forcibly put partition in the land between Govinda and Mohan. So, on the day of the alleged incident, Mohan, Mamchand and the other persons who had gone to the field where the accused persons were rightfully cultivating the land which was sold to them by Govinda, were the aggressors. They had gone there to take possession of the said land forcibly. Thus, it is clear that the accused persoos who were lawful owners and who were in possession of the portion of the had in a lawful manner, had right to save their property. They had full right of private defence of their property.
12. The learned Sessions Judge held that the complainant-party had formed an unlawful assembly. Their object was to take the land forcibly back from the possession of the accused persons. We also agree with this finding of the learned Sessions Judge. As is clear from the evidence both oral and documentary, the land in question save sold to the accused persons by Govinda through a registered sale-deed, and the accused persons were in possession of that land, and their possession was lawful possession. The complainant party had no possession over this portion of the land. The accused persons were normally carrying agriculture on it in a peaceful manner, which was validly sold to them for consideration. So, there was no object, nor could it be imagined that the accused persons would for any object form an unlawful assembly, rather it was the complainant and his party who came there and tried to tike forcible possession of the said land. So they formed an unlawful assembly.
13. It is not denied that there was a fight in the field, and that, in that fight, the complainant party as well as the accused party received injuries. Prabhu died on account of injuries. Similarly, three of the accused party also received injuries. As we have mentioned above, the complainant-party was the aggressor. They had no right to go to the field and interfere in the rightful possession of the accused-party, who had been cultivating the southern portion of khasra No. 208 only. According to the site-plan also, the actual fight took place on the southern-western corner at khashra No. 208. It shows that the complainant and his party had entered into the southern portion of Khashra No. 208, where they were confronted with the accused persons. The fact that the accused persons had received injuries, one of them being grievous, also shows that the comphinant party was also armed with lathis, at least. The accused persons were also beaten, and grievous injuries were caused. So, they had reasonable apprehension in that condition of an invasion of their rightful right to cultivate the southern portion of khasra No. 208. They were also in real danger of being beaten and receiving injuries at the hands of the complainant party. Inspire of the fact that the land was sold to Kishaola accused, Mamchand, Govinda and the others ware adamant in not allowing the accused persons in ploughing the portion already sold to them. Once the land was sold to them and sale proceeds were received by Govinda, they had no right to disallow the accused persons to plough the said field. Thus, we are of the opinion that on the basis of the evidence available on the record that the accused persons were within their legitimate right to enter the fit is carry normal agriculture on the southern portion of khasri No. 208. they were obstructed by the complainant and his party, and were threatened with physical violence, which was most unreasonable and improper attitude on the part of the complainant party. The complainant-party had actually initiated the fight. They were the aggressors. The learned Sessions Judge has correctly held that the complainant party was the aggressor in this case.
14. The right of private defence of person and property has been well-settled by Hon'ble the Supreme Court. In Jaidev v. The State of Punjab : 3SCR489 , it has been observed as under:
If the person claiming the right of private defence has to face assailants who can be reasonably apprehended to cause grievous hurt to him, it would be open to him to defend himself by causing the death of the assailant.
As the injuries of the accused persons have not been explained by the prosecution, a doubt is crept in on the correctness of the story of the on prosecution It has been established and proved that three of the accused persons had received injuries at the hands of the complainant party, one of them being grievous in nature. It was the duty of the prosecution to have explained these injuries of the accused persons, which they have failed to co.
15. In Laxmisingh and Ors. v. State of Bihar (1977) CAR (SC) 28, it has been observed as under:
It is well settled that fouler the crime, higher the proof, and hence, in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence.
In that case, it has been further held as under:
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in propability with that of the prosecution one,
16. In State of Gujarat v. Bai Fatima and Anr. Cr. Appeal No. 67 of 1971 decided on March 19,1975 Hon'ble Untwalia, J. speaking for the court, observed as under:
In a situation like this, when the prosecution fails to explain the injuries en the person of an accused, depending on the facts of each case, any of the three results may follow:
(1) That the accused had inflicted the injuries on the members of & the prosecution party in exercise of the right of self-defence.
(2) It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt.
(2) It does not affect the prosecution case at all..In that instant case, either the accused were fully justified in causing the death of the accused and were protected by the right of private defence or it if the prosecution does not explain the injuries on the person of the deceased, the entire prosecution case is doubtful and the genesis of the occurrence is I shrouded in deep mystery which is sufficient to demolish the entire prosecution case.
In the present case also, we feel that the accused persons were justified in causing injuries of Prabhu and the others, as a result of which Prabhu died, and they were protected by the right of private defence as the prosecution has failed to explain the injuries on the persons of the accused party. The f entire prosecution case is shrouded in deep mystery which is sufficient to demolish the entire prosecution case.
17. We have held above that the half portion of Khasra Nos. 203 and 208 were lawfully sold to Kishanlal by Govinda, and he was put in lawful possession Thus, the accused persons were in rightful possession and they Were ploughing the land in their right. The complainant and his party went there and did not allow them to plough the said land which they were entitled as of their right; and in that process, if they resisted the complainant party, they were doing so as of their right of private defence of their property. The injuries of the accused persons show that the complainant party was not prepared to withdraw resistance and they wanted to take possession by heating the accused party. The accused-party being injured, could reasonably apprehend that they would be killed or receive grievous hurt. They had right of private defence of their person and property under Section 100, IPC. Therefore, if the accused-party had inflicted a number of injuries on the persons of the complainant-party, including Prabhu, who died as a result thereof, they were within their right of self defence. In our opinion they cannot be held guilty of murder or of causing injuries to Prabhu and his associates.
18. In Mana v. The State of Rajasthan 1978 RLW 245, the right of private defence has been discussed at length by Justice Lodha. Therein, t it has been observed:
It is true that sitting here in the court-room and while making a fine distinction between the extent of the right of private defence of person and property available to party. we may, by analyzing the niceties of provisions of Section 100, 102, 103 and 104 of the Indian Penal Code, enter into a 'mental gymnasium' regarding the quantum of the force which should have been used, But, can the tiller of the soil defending his only source of liveli-hood and the ploughing and cultivation which he has done and which is likely to give him, hardly two square meal', a day with difficulty; weigh each blow they would give to defer d that property and person; in golden scales Is he not entitled to protect himself and his property
In that case, Justice Lodha referred to the guidelines laid down by Justice Gajendragadker (as he then was) in Jaidev v. The State of Punjab (supra), wherein, it has been observed as under:
In judging the conduct of a person who proves that Lehad a right of private defence allowances has necessarily to be made for his feelings at the relevant time. He is faced with an assault which causes a reasonable apprehension of death or grievous hurt and that inevitably creates in his mind some excitement and confusion. At such a moment, the upper most feeling in his mind would be to ward off the danger and to save himself and his property, and so, he would necessarily be anxious to strike a decisive blow in exercise of his right. Is is no doubt true that in striking a decisive blow, he inmtnotuse more force than appears to be reasonably necessary. But, in dealing with the question as to whether more force is used than is necessary or than was justified by the prevailing circumstances, it would be inappropriate to adopt tests of detached objectivity which would be so natural in a court-room for instance long after the incident has taken place. The means which a threatened person adopts or the force which he uses should not be weighed in golden scales To begin with, the person exercising a right of private defence must consider whether the threat to his person or his property is real and immediate. If he reaches the conclusion reasonably that the threat is immediate and real, he is entitled to exercise his right. In the exercise of his right, he must use force necessary for the purpose and he must stop using the force as soon as the threat has disappeared. So long as the threat lasts and the right of private defence can be legitimately exercised, it would not be fair to require that he should modulate his defence step by step, according to the attack, before there is reason to believe the attack is over.
19. Thus, when the accused persons are threatened with extinction of their person and property, their most instinct would be toward off the threat by whatever methods and means they can adopt without permitting the opportunity to the complainant party to succeed in their objective. In this case, the accused persons having their right of private defence of person and property, took action and in that process, the complainant party was beaten. So, from a perusal of the entire record and considering all the aspects of this case, we are of the opinion that the accused persons in this case, had the right of private defence of their person and property. They even did not exceed with this right. The accused persons had the right to protect themselves and their property. Had the complainant-party felt that the land had been wrongly sold or had been purchased by Kishanlal accused by decietful meats, they should have gone to a civil court for proper remedy. There was no justification in taking the law in their own hands and in trying to forcibly dispossess the accused persons from the said land, also beat the accused persons We are, therefore, in perfect agreement with the finding of the learned Sessions Judge.
20. As a result of the above discussion, we are of the above discussion, we are of the opinion that there is no forece in this state-appeal, and it is hereby dismissed. The order of acquittal passed by the learned Session Judge, is, therefore, maintained and confirmed. The accuse-respondents are on bail. They need not surrender to their bail bonds, which are hereby discharged.