R. Sachar, J.
1. This is an appeal against the conviction and sentence of the appellants by the Additional District and Sessions Judge, Dholpur by his judgment dated 4-8-71. The learned court has convicted the appellants Lohrey, Pati Ram, Chhotey and Diwansingh for committing the offence under Section 302 read with Section 34 and 147 IPC. for having caused the death of one Ochhey and has sentenced them to imprisonment for life on the first count and to a period of 6 months rigorous imprisonment on the latter count. The sentences are to run concurrently.
2. Appellant Babu has been convicted under Sections 326 and 148 I.P.C. for having given grievous injury to Jaswant and sentenced to imprisonment for 5 years on the first count and 1 year on the second count.
3. The appellants Pooran, Sarnam and Pehalwan have been convicted under Section 326 read with Sections 34 and 147 I.P.C. for having caused grievous hurt to Jaswant and sentenced to 3 years rigorous imprisonment on the first count and 6 months on the second count.
4. The appellants Harbilas and Kaptan were convicted under Section 147 but instead of sentencing them they were given the benefit of Section 4 of the Probation of Offenders Act.
5. All the appellants along with Arjun and Uttam had been charged under Sections 304, 34, 326, 323, 149 and 148 I.P.C. Arjun and Uttam however have been acquitted by the learned trial court.
6. The prosecution version as given in the first information report lodged by P.W. 1 Mohan Singh was that on 6-7-70 Jaswant and Thakur Prasad were sloughing the land which they had brought under cultivation from Banjar and all the appellants including Arjun and Uttam came there armed with lathis, Phrases and swords with the intention to be at item and no sooner had the reached there a blow was given on the head of Jaswant by Babu by sword which however hit him on the shoulder. Pooran, Pehalwan, Sarnam and Arjun are also said to have beaten Jaswant. On this Thakur Prasad and Ochhey came to save Jaswant when the accused said Ochhey was the enemy and they would kill him and similarly the other accused with their respective weapons swords, Phrases and lathis started beating him. As a result of the injuries Ochhey died.
7. The post mortem report revealed that the death of Ochhey was due to the injuries caused on his head. The doctor found 5 injuries of which injury No. 1 was on the left temporal region and injury No. 4 was 2' x 2' echymosis on the right side of the head. P.W. 2 Dr. Dalipsingh a so deposed to having examined Jaswant P.W. 3 and found 4 injuries on his body, one being grievous on the left shoulder which had cut the muscle and bone. Injuries on Thakur Prasad P.W. 12 were found simple. Two of the accused namely, Harbilas and Pati Ram were also examined on the same day and 4 injuries were found on Pati Ram while an inflammation 3' x 2' on the back on the left of the middle on Harbilas.
8. All the accused except Harbils and Pati Ram denied their presence and pleaded that they were wrongly implicated. Harbilas however, stated that jaswant, Thakur Prasad and Ochhey came with bullocks and ploughs on the field, which the accused claimed to have brought under cultivation and when he entreated them not to plough they instead started giving a beating to him. In the meanwhile Pati Ram accused came on the, spot arid. fried to save him but was also given beating by the deceased as well as. P.W. 3 Jaswant and P.W. 12 Thakur Prasad. Any dispute with Ochhey was denied and it was also denied that the land was brought under cultivation by Jaswant or Thakur Prasad.
9. The trial court came to the conclusion that the evidence of the prosecution witnesses leads to the irresistible conclusion that the land on which Jaswant and Thakur Prasad and the deceased had gone to plough on the day of occurrence was not their land, but was the field of Harbilas accused appellant. It also held the field on which the occurrence took place was not in possession of Jaswant or Thakur Prasad but had been developed and was in possession of the accused Harbilas for more than 5 or 6 years prior to the occurrence. The trial court also held that as the land was not in possession of Jaswant or Thakur Prasad it was wrong on their part to have gone to that land with a plough and bullocks and attempt to plough it.
10. The next crucial point that had to be determined was as to how the incident had occurred. The accused had taken the stand that Harbias Was cultivating the land when the complainant Jaswant and Thakur Prasad came there, started beating him and Pati Ram accused came to his rescue and was also given beating and they also in then self defence gave beating to the complainant's party. In the first information report however the story brought out by PW 1 Mohan Singh was that the field had been brought under cultivation by Jas wane, Thakur Prasad and they had gone with their ploughs and bullocks along with Ochhey and thereupon all the 12 accused had come to the spot and when they started giving beating to Jaswant, Ochhey and Thakur Prasad tried to save him and thereupon accused fell upon Ochhey by saying that he should be killed In the evidence in court however a completely different version was put forward by the prosecution witnesses which was to the effect that Jaswant and Thakur Prasad had gone to the field for ploughing, they had thereafter called Ochhey for a smoke and they were smoking peacefully in the field when the accused came there shouting that they will beat Ochhey. On this Ochhey is said to have started running away but was pursued by the appellants who gave him various blows killing him in the process. The trial court noted that there was thus a serous discrepancy and contradiction between the version given in the first information report from that given by the witnessee in court but some how brushed aside by saying that it was immaterial whether Ochhey was cultivating the field with Jaswant and Thakur Prasaad or whether came later on and halted there to smoke a pipe. We find this conclusion unacceptable. It is very much material as to how precisely the events happened. In the first information report it is suggested that Jaswant, Thakur Prasad and Ochhey were cultivation the land and beating to Ocheey was given by the accused in the process of apparently trying to turn out the complainant party. In the evidence in court completely under standable and different approach on the part of th eaccused is being put forward by stating that they on seeing Ochhey said that they wanted to beat him and kill him. Obviously this turn about is being brought forward with a view to pin point an intention to kill Ochhey by the appellants and to cloud and bye pass the question of possession of the land where the incident took place. In view of the finding by the trial court itself that the incident took place on the and which was under the cultivating possession of Harbilas of the last 5 or 6 years it is apparent that Jaswant, Thakur Prasad and Ochhey had no justification in law to go to the land on the date of the incident and seek to plough it. Section 97 gives a right to defend his own body, and the body of any other person against any offence affecting the human body or the property whether movable or immovable against any offence which is an offence falling under the definition of criminal trespass or an attempt to commit criminal trespass. In view of the finding of the trial court that the land on which Jaswant. Thakur Prasad and Ochhey had come to plough the land belonged to accused Harbilas it is apparent that this action of theirs amounted to criminal trespass and the accused would be entitled to invoke Section 97 to their aid. The trial court in denying the right of private defence of property to the appellants referred to para 3 of Section 99 which provides that there is no right of private defence in cases where there it time to have recourse to public authorities and as he was inclined to take the view that Jaswant and others were ploughing the land and had half ploughed the land on the morning of the occurrence, it held the appellants were not entitled to invoke the right of private defence of property. We do not think that that is a correct statement of law, considering the finding of the trial court that the possession of the land was with the appellant Harbilas for the last 5 or 6 years. The law does not require that if on the morning of the occurrence a criminal trespass has been committed by the complainant the accused should instead of trying to exercise their right of private defence of property given to them by Section 97 proceed to enter into a time consuming litigation either civil or criminal. If the right of private defence of property is to be so restricted it would be impossible to exercise the same with regard to the agricultural land which obviously cannot bf kept within lock and key all the time. No doubt if there is a dispute about the possession of the land and it is rather uncertain, it is expected that party would have recourse to law and not take the law in its hands or resort to strong arm tactics. But on the peculiar facts of this case where possession has been found with appellant Harbilas far the last 5 or 6 years it was nothing but high handed action and criminal trespass on the part of Jaswant and others to seek to plough the land. To allow the right of private defence of property to be corroded by such an attitude goes counter to the very scheme of the statute No doubt it is true that the right of private defence does not extend to inflicting more harm than it is absolutely necessary to inflict for the purposes of defence. It should also be remembered that in case the tight of private defence has been exceeded it is only that accused who has exceeded that right can be held guilty and not the other accused. Once the right of private defence has been held to be established and the only criticism is that it has been exceeded then each individual accused can only be liable for the specific act and the applicability of Sections 34 and 149 cannot be invoked by the prosecution vide A.I.R. 1970 SC 27.
11. In order to deny the right of private defence to the accused the trial court has commented that as Ochhey was chased from the point marked C on Ex. P 4 upto the point marked D and mercilessly beaten on the head this shows that the intention was not to exercise right of private defence but to kill the victims. It is surprising that the trial court having itself noticed that the version given in the trial court was substantially different from that in the first information report has yet chosen to give this reason to deny the appellants the tight of private defence. In the first information report the version given is that as soon as the appellant came to the field Jaswant was given a blow by Babu, and other accused also gave blows and thereupon Thakur Prasad and Ochhey came forward to rescue Jaswant when Ochhey was given a blow by Lohney and also by Kaptan, Uttam, Harbilas and Pati Ram by saying that he is the enemy. It will be noticed that according to the first information report the blows to Ochhey were given right there and then in the field at the same time when blows were said to have been given to Jaswant. The version which was introduced later oil in the evidence at the trial court of Ochhey having been called for a smoke and sitting quietly in the field smoking and the appellants having come to the field shouting that they wanted to beat and finish Ochhey and then pursuing Ochhey who had started running away is completely at variance from the version given in the first information report. This improved and-'changed version has obviously been given with an eye to deny the appellants the right of private defence if it was proved that the land did not belong to the complainants party. In view of the fact that the story of the running away of Ochhey and being chased by the appellants is not given in the first information report we are not inclined to accept this version given subsequently by the witnesses. This reason for denying the right of private defence given by the trial court has no basis and must be overruled.
12. In order to support the prosecution case it examined P.W. 1 Mohan Singh who lodged the first information report, P.W. 3 Jaswant, P.W. 8 Chinta and P.W. 12 Thakur Prasad as the main eye witnesses. P.W. 5 Khubchand, P.W.7 Jeeva Ram and P.W. 9 Suwalal were also said to be the eye witnesses of the occurrence but they turned hostile and the trial court has not relied on their evidence.
13. With regard to P.W. 1 the trial court has opined that it creates a serious doubt about his very presence during the course of affray and leads to the conclusion that he was not at all present when the blows were exchanged and during the scuffle. The trial court has also found that he was not a dependable witness. Therefore the evidence of P.W. 1 Mohan Singh gives no assistance to the prosecution.
14. So far as P.W. 8 Chinta is concerned the is the real brother of Ochhey the trial court on going through his statement has given a finding that he is not a trust worthy witness. His name is not mentioned in the first information report. This witness also therefore cannot help the prosecution.
15. About the next witness P.W. 12 Thakur Prasad the trial court came to the conclusion that though he was present on the scene of occurrence but as he has stated that he could not give the details of beating he can be of no assistance in attributing any particular blow alleged to have been given by the accused.
16. In the first information report all the present appellants including Arjun and Uttam have been named though in the evidence before the trial court the names of Arjun and Uttam are not mentioned and P.W. 3 Jaswant who is said to be the best witness by the trial court did not mention them in the examination in chief. The trial court though noting that P.W. 1 Mohan Singh hid named Arjun and Uttam even in the court was not inclined to accept his statement and found that both of them were therefore entitled to? acquittal and ordered accordingly.
17. With regard to the injury caused to Ochhe the medical evidence is that all these injuries were caused by blunt object. In the first information; report it was recorded that injuries were given by Pharsas, swords and lathis blow by Uttam but as no sharp edged injury was found on the deceased, the trial court actually came to the conclusion that the version of Pharsa blows having been given was not acceptable. In holding Lohrey, Pati Ram, Chhotey and Diwansingh guilty for having beaten Ochhey the trial court has relied solely on the testimony of P.W. 3 Jaswant. It may however be noted that in the police statement Jaswant has apart from naming these 4 accused also named Uttam (since acquitted) and Harbilas one of the present appellants. Jaswant had also in his evidence in court mentioned the name of Kaptan who is alleged to have given a lathi blow to Ochhey while he had fallen--down. The trial court however gave the benefit of doubt to Kaptan because his name had not been mentioned earlier in the police statement. He however found that Lohrey, Chhotey, Pati Ram and Diwansingh had given beating to Ochhey as a result of which Ochhey died soon after the occurrence. In the police statement Ex. D/3 with which Jaswant was confronted he had stated that Lohrey and Pati Ram had beaten Ochhey with Pharsas from the proper side but it had hit from the reverse side. Jaswant states now that Chhotey had given a lathi blow on the head if Ochhey. In his police, statement Ex. D/3 he had however stated that Chhotey had hit with lathi on the buttock after Ochhey had fallen down. Similarly the part ascribed to Diwansingh in the police statement was that he had given a blow with lathi on the right foot. It is clear thus that so far as Diwansingh and Chhote are concerned in the earlier statement to the police he had nol named them as the cries who had given the head injury to Ochhey. In the first information report both Lohrey and Pati Ram are ascribed to have given Pharsa blows 10 Ochhey, Harbilas also is said to have attacked with Pharsa and lathi blow is also attributed to Uttam. The trial court h?s not accepted that Pharsa blows were given because the medical evidence did not support this He also acquitted Uttam oecause according to him his name is not mentioned by the other witnesses. It should also be seen that Lohrey has no injury on his person and this is certainly one of the relevant circumstances to be taken into account to come to a finding whether he was present on the spot or not. It should also be noticed that the trial court found that the prosecution in order to prove an intention to murder Ochhey gave a distorted version of animus and tried to conceal tie state of the case namely, flaring up of the whole occurrence upon the complainant party ploughing the land previously held and cultivated by accused Harbilas. No animus had been alleged between Ochhey and the appellants in the police statements. The trial court has itself found that the correct position was that when the complainant party went to the field in question this gave a serious cause for grievance to Harbilas and he must have come there with support to teach a lesson to the wrong doers for ploughing the land. It is immediately apparent that from these circumstances that it is impossible to impute any common intention to murder Ochhey. The whole thing was a sudden affair. We have already held that the appellants had a right of private defence of property. As such Lohry and Harbilas and other accused thus had a right to turn out the complainant Jaswant and party from the land on which they had trespassed. It is also apparent that some of the accused also got injuries as is clear from the injuries on the person of Harbilas and Patiram. These injuries have remained unexplained and the witnesses are completely silent on this aspect and this also causes a serious infirmity in the prosecution story. We have already pointed out while dealing with the evidence of Jaswant that Diwansingh and Chhote appellants are not mentioned in his police statement as having given any blow on the head of the deceased and it is therefore unsafe to hold positively that they gave any head blow to the deceased. Similarly, Lohrey is not injured and his presence on the place of occurrence seems doubtful. Though Pati Ram is injured and may have been on the spot, it cannot be said beyond reasonable doubt that it was his individual blow on the head which caused the death of Ochhey. There were atleast 3 injuries on the head of the deceased and according to the doctor the death was caused due to the injuries on head of the deceased. But he does not say that each individual injury was sufficient in the ordinary nature to cause death. It is not possible to attribute any particular injury to Pati Ram even if it be held that he was involved in beating Ochhey nor can it be said that it was blow by him which caused the death of Ochhey. That apart we have already found that in the first information report even the acquitted accused Uttam was attributed a lathi blow to Ochhey and many of the other accused have been attributed Pharsa blows Ochhey. In these circumstances it is not safe to hold that the particular blows even if given by Pati Ram was the cause of death of Ochhey.
18. It seems to us also quite importable that each of the accused should step forward to give one blow each in a very orderly manner as is deposed by' the PWs. In a fight such kind of orderly conduct is hardly acceptable. It should also be remembered that the complainant party had not only committed criminal trespass on Harbillas's land but were determined to resist eviction, rather were prepared to assert their claim with violence as is clear from the injuries suffered by the accused Pati Ram and Harbilas. In such circumstances the accused were entitled to cause injuries exercise of their right of self defence It may be that one of the accused exceeded his right of private defence. If so, only he alone, can be guilty of that fatal blow, and as it is not known which accused exceeded the right of private defence, if at all, it is not possible to pin point any of the accused for the death of Ochhey. The trial court has applied Section 34 IPC against all the four accused. In view of our finding that right of private defence was available to the appellants applicability of Section 34 must be ruled out. We would therefore set aside the conviction of Lohrey, Pati Ram Chhotey and Diwansingh under Section 302 read with Section 34 IPC.
19. The next batch of the accused who have been sentenced under Section 326 read with Section 34 IPC are Pooran, Babu, Pehalwan and Sarnam. PW 3 Jaswant had assigned six injuries on his body, but according to the medical report only 4 injuries are to be found. The trial court found that this witness had attributed injuries on his head to Pehalwan and Sarnam contrary to what he had stated earlier in the police statement. In the first information report there is no mention of any specific part with regard to injuries on him by Pehalwan, Pooran and Sarnam. In the first information report the blows to Jaswant aie attributed to Babu with sword, Pooran with sword, Pehalwan and Sarnam with Pharsas and Arjun, with lathi. Thus no part of the body was specifically mentioned on which blows were given. In this police statement he had specified the blows given by each accused and had also mentioned that Arjun and Kaptan had given the lathi blows on his back. No such injury however is found him and the trial court has found that this part of the statement of PW 3 cannot be believed. This clearly made the implication of Pehalwan, Pooran and Sarnam doubtful. But the trial court however curiously simply because there were injuries on other part of body of PW 3 came to the conclusion that Babu had caused grievous hurt by sharp edged weapon and further a common indention must be attributed to Pooran, Pehalwan and, Sarnam that, grievous hurt will be caused by Babu. This inference is completely unacceptable because in the process of fight no such common intention could be attributed to the other accused that any particular blow will be given because no prior concert Has been proved. The whole thing was really one transaction in which the complainant party which had trespassed on the land was sought to be removed by the accused party. Babu is not injured and simply on the statement of jaswant PW 3 that he gave the sword blow to him it will not be safe to find him guilty of having caused grievous hurt. This is apart from the fact that even if he had caused the grievous hurt he would not be guilty because we have already held that all the accused who participated would be entitled to benefit of light of private defence. The conviction of Baba Sarnam, Pooran and Pehalwan under Section 326 read with 34 IPC is also unsustainable & is set aside.
20. The trial court has also found all the appellants guilty of rioting and convicted them under Section 147 IPC except Babu whom he convicted under Section 148 IPC, because he was said to be armed with a sword. The trial court, it should be noted has found that Section 149 was not applicable. In arriving at the finding that the accused are guilty of rioting the court seems to have completely ignored its earlier finding that the land on which the incident took place was in the possession of the accused and that Jaswant, Thakur Prasad and Ochhey had trespassed on the land. In view of the fact that the trespass was by the complainant party and in view of our finding that the accused had the right of private defence of property the question of forming an unlawful assembly for the purpose of committing an offence hardly arises. In that view the conviction of the accused under Section 147 and 148 IPC cannot be sustained and is set aside.
21. As a result of the above the charges against the accused fail and their conviction and sentence passed by the trial court is set aside. Excepting Harbilas and Kaptan had already been released on probation on entering a bond as ordered by the trial court the other appellants are on bail. As the conviction of the accused have been set aside, they need not surrender to their bail and the bail bonds are therefore directed to be cancelled. The bonds by Harbilas and Kaptan who have been released on probation are also directed to be cancelled.