Milap Chand Jain, J.
1. The appellant Laxman Singh, his brother Ram Singh and his mother Mst. Rampyari were tried for the offence under Sections 447, 307, 380/451 read with Sections 34 and 109, IPC by the learned Sessions Judge, Merta, who by judgment dated September 3, 1974 convicted the appellant Laxman Singh of the offence under Section 302, IPC and sentenced him to undergo rigorous imprisonment for life and to a fine of Rs. 1000/-, in default of payment of fine to further undergo six months rigorous imprisonment. He was also convicted of the offence under Section 307, IPC and was sentenced to undergo five years rigorous imprisonment and to pay a fine of Rs. 100/. in default of payment of fine to undergo further rigorous imprisonment for one month. He was also convicted of the offence under Section 447, IPC and was sentenced to undergo one month's simple imprisonment. All the sub-stantive sentences were ordered to run concurrently. He was acquitted of the offences under Sections 451 and 380, IPC.
2. The other two accused persons were convicted of the offence under Section 447, IPC and were sentenced to one month's simple imprisonment. Both of them were acquitted of all other charges.
3. The prosecution case, in brief, is that 20 bighas land of Khasra No. 16 situated in village Parevadi, was in the Khatedari of Shivbux(deceased) and was in his cultivatory possession. There was a dhani' in the northern portion of the field and Shivbux was residing in that Dhani along with his sons Bhagirath and Amra (both deceased), another son PW 5 Ganesh, his wife Lachhuds (PW4), daughter in-laws Smt. Dhannudi PW 2 w/o Bhagirath and Shivkuri PW 3 wife of Amra. It is alleged that on the morning of 4-7-1973 at about 8.30 a.m. Shivbux, Bhagirath and Amra went from their Dhani to their field, Bhagirat and Amra each took one plough with them and started ploughing the field. Shivbux was engaged himself in removing the weeds, Smt. Dhannudi Smt. Shivkuri, Smt. Lachudi & Ganesh remained at the Dhani. Smt. Dhannudi and Smt. Shivkuri were busy in grinding the corn, Smt. Lachudi was churning the curd and Ganesh was taking his break-fast. After sometime they heard hue and cry coming from the field. When they came out they saw the accused Rampyari and Ramsingh engaged in a heated conversation with Amra and Bhagirath. The accused Ramsingh was armed with a Farsi and Mst. Rampyari was armed with a Gandasi. Ramsingh had come with one camel plough. Rampyari and Ramsingh alias Rameshwar were insisting for ploughing the land and were preventing Bhagirath and Amra from ploughing the land. When this wordy wrangles and altercation was going on the accused Laxman Singh came there armed with a single barrel, 12 bore gun from towards the northern eastern corner of the field. On arrival of the accused Laxmansingh, Rampyari and Rameshwar exhorted 'MARO'. Therefore, Laxmansingh fired one gun shot a Bhagirath. He also fired second shot at Bhagirath and thereafter, two shots, each on Shivbux and Amra. Two shots were fired by Laxmansingh at Ganesh PW5 which hit him. Thereafter PW 5 Ganesh ran away. On being hit, Amra first ran towards the 'Jao' of Munna Ram. The accused Laxmansingh however, chased him and fired a second shot at him whereby, Amra fell down in the field of Munnaram. It is further alleged that the accused then went to the Dhani and rebuked the ladies and asked them to run away else he will kill them. The ladies left their house. They saw the dead-bodies of Shivbux, Bhagirath and also of Amra. Then they visited the Dhani of Chandraram (PW 1). PW 1 Chandra Ram went to Police Station, Chitawa and lodged the report (Ex.P 4) at 4.40 p.m. in which he stated that on hearing the gun shots, he went up stairs and saw the aforesaid ladies and Ganesh coming crying and they informed that Shivbux, Bhagirath were killed and Amra was fired at by Laxman Singh while he was running, whereby Amra fell down. The ladies also informed him that that Laxman Singh had gunned down Shivbux, Bhagirath and Amra and also fired shots at Ganesh. PW1 Chandraram also stated that before the shots were fired, Ramsingh and Rampyari had come to the field to plough, which was resisted by Shiv Bux, Amra and Bagirath. Thereupon Laxmansingh fired and killed Shivbux. Bhagirath and Amra, had fired at Ganesh. Some dispute regarding the field was going on between Laxmansingh and Shivbux. PW 13 Dungarmal SHO registered the case under Sections 302, 307, and 447 read with 34, IPC. At about 6.20 p.m. he reached at the spot, which was at a distance of 8 miles. He recorded the statements of Smt. Shivkuri (PW 3) and Smt. Dhannudi (PW 2). Thereafter, he visited the Dhani of Shivbux. He found the accused Laxmansingh standing inside the 'Bar' to the dhani having 12 bore gun and cartidges. The accused Laxmansingh was arrested and the gun along with the bondolier containing the cartridge was seized. A cartridge was found in the chamber of the gun (Ex. 34). the gun was packed and sealed. At the time of his arrest, abrasions were found on his buttock and calf. Thereafter, he conducted the spot investigation. He prepared the site-plan Ex.P/11 and site-inspection note Ex.P/10. Two empties were found on the spot near the dead-bodies of Shivbux and Bhagirath. One empty was got recovered by the accused from the Zoopa of Shivbux. Three more cartridges were got recovered by the accused from the field of Shivbux, after digging the pit. Autopsies on the dead-bodies were got conducted. The injured Ganesh was also medically examined. The recoveries were also affected after post-mortem examination. Ramsingh and Rampyari were also got medically examined after their arrest. After completion of the investigation, charge-sheet was presented against the accused-persons in the court of Munsif Magistrate, Nawa, who committed the case to the court of Sessions Judge, Merta for trial. The learned Sessions Judge tried all the three accused-persons The accused-persons were charged with various offences to which they pleaded not guilty and claimed to be tried.
4. At the trial, the prosecution examined PW 1 Chandraram, PW 2 Smt. Dhannudi, PW 3 Smt. Shivkuri, PW4 Smt. Lachhudi, PW 5 Ganesh, PW 6 Shrikishan (Patwari), PW 7 Gangaram (Motbir), PW 8 Bhagirathram (Motbir), PW 9 Laxmanram (Motbir), PW 10 Jaikishan Constable, PW 11 Girish Ranjan Prasad, PW 12 Sheoram (eye-witness), PW 13 Dungarmal, SHO, PW 14 Harisingh, PW 15 Alamkhan (Constable), PW 16 Dr. Shailja Ratan Shukla (who conducted the autopsies), and PW 17 Dr. Bhagwati Prasad Jangid (Medical Jurist, S.K. Hospital, Sikar).
5. The statement of the accused Laxmansingh was recorded in which he stated that there is no field of Shivbux on the out-skirts of village Parevadi nor there is any Dhani of him. He used to reside at Magrasi 2 miles away from the village Parevedi. He further stated that on the date of occurrence, his brother Ramsingh and his mother Rampyari had gone to plough the field. Ramsingh ploughed about 13 Umars, thereafter he went for carrying tea. Shivbux had come along with 20 persons and they opened an attack on Ram Singh with guns, farsis and lathis. His brother was hit with a shot, whereby his brother ran from there. He was felled down at a distance of 10 yds. then his mother fell on Ramsingh in order to save him. His mother was assaulted. Thereupon, he ran and came near to them, then will folded hands be implored them to go away despite that, they opened an attack on him. He sustained three farsi blows and three lathi blows. At that time, he fired the shots. He did not fire at Bhagirath. Shivbux and his companions fired the shots. It may be that Bhagirath was killed by those shots. He denied to have fired at Shivbux, Bhagirath, Amra and Ganesh. He was arrested while he was lying in the field. He admitted that the gun belongs to him and was in working condition but the empties presented in the court, were not fired by him.
6. In defence, the accused-persons examined DW 1 Dr. Sharad Chandra, who conducted the post-mortem examination of Ramsingh and Rampyari, DW 2 Dr. Prabhusingh Deora (who examined the accused Laxmansingh), DW 3 Daula and DW 4 Amarsingh.
7. The learned Sessions Judge after hearing the arguments convicted and sentenced the accused-persons as aforesaid. Dis-satisfied with the convictions and sentences, the accused Laxmansingh has filed this appeal and no appeal has been filed by Ramsingh, and Rampyari for the offence under Section 447, IPC.
8. The learned Sessions Judge recorded the following findings:
(1) It was the accused Laxmansingh, who fired the gun shots at Shivbux, Bhagirath, Amra and Ganesh. The finding was recorded on the basis of the statements of DW 2 Smt. Dhannudi, PW 3 Smt. Shivkuri, PW4 Smt. Lachhudi, PW 5 Ganesh and PW 12 Sheoram corroborated the testimony of PW 1 Chandraram and the medical evidence of PW 15 Dr. Shailja Ratan Shukla and PW 17 Dr. Bhagwati Prasad Jangid;
(2) He did not believe the prosecution case that Ramsingh and Rampyari were armed with weapons and that they at all exhorted the accused Laxmansingh to fire shot at Bhagirath and others. This finding was recorded in view of the police statements of Smt. Dhannudi Ex.D 2. Smt. Shivkuri Ex. D/3, Smt. Lacchudi Ex. D/4 and also the previous statement of PW 5 Ganesh. In their police statements, there were omissions regarding both the accused-persons being armed with the weapons and also with regard of making any exhortation by them. PW 12 Sheoram's statement regarding both the accused-persons being armed, was not believed and he did not make any statement regarding any exhortation by the two accused-persons;
(3) He found that the prosecution has fully proved beyond any shadow of doubt that on 4-7-1973 Shivbux deceased and the members of his family were in actual cultivation of the field and they used to reside in the Dhani. This finding was reached on the basis of the testimony of PW 2 Smt. Dhannudi, PW 3 Smt. Shivkuri, PW 4 Smt. Lachhudi and PW 5 Ganesh supported by PW 1 Chandraram, PW 6 Shrikishan. Reliance was also placed on the revenue records of Jamavandi Ex.P/5 and entry of mutation register Ex. P/6. He also took into consideration the mutation entry Ex.D/6 and Girdhawari slip prior to SY 2026 and the statement of DW 3 Daula and DW 4 Amarsingh;
(4) The learned Sessions Judge, then considered as to how and in what manner the incident took place. He found that there were 15 injuries of the person of Ramsingh, and 9 blunt and sharp injuries were found on the person of Rampyari. He observed that the circumstances go to show that the injuries on the person must have been inflicted by Shivbux, Bhagirath and Amra, when the accused Rampyari and Ram Singh had gone to the field to plough the same and at this juncture, the accused Laxmansingh must have fired the shots at Shivbux, Bhagirath and Amra. He found Ramsingh and Rampyari committed a criminal trespass and the deceased Shivbux, Bhagirath and Amra were justified in beating them with a view to eject them from the field. In these circumstances, the accused Laxmansingh had no right of private defence of person of Ramsingh and Rampyari nor did he have any right of private defence of property. The version of the accused Laxmansingh was not believed. Firing of the gun at Ramsingh was not supported by medical evidence. Three Farsi blows and three lathi blows on Laxman Singh, was also supported by DW 2 Dr. P.S. Deora, who found only one old lacerated wound and one minor abrasion on the person.
9. It was not proved that the accused Laxmansingh committed theft in respect of any articles in the dhani.
10. The conviction of the accused Laxmansingh, Ramsingh and Rampyari were recorded on the basis of the above findings. Dis-satisfied with the same, this appeal has been filed by accused Laxmansingh.
11. We have heard Mr. M.R. Bhansali, learned Counsel for the accused-appellant and Dr. S.S. Bhandawat, learned Public Prosecutor for the State.
12. Before dealing with the contentions advanced before us, it would be proper to note the injuries which have been found on the person of the deceased as well as on the person of Ganesh, Ramsingh, Rampyari and Laxmansingh. PW 16 Shailja Ratan Shukla found the following external wound on the dead-body of Amraram:
(1) There was an oval lacerated wound 6 c.m.x3 cm.on the right side chest in infra-clavicular region; 9 cm. above the right nipple and & 8 cm.away from lateral border. The wound had penetrated right lung completely. The skin surrounding the wound was blackened. I took out a cotton plug and 12 pellets from the wound;
(2) Multiple wounds over right mammary region, apigastrium right arm on anterior side and on right infra-axillary region, these wounds looked like pellet wound;
(4) Multiple pellet injury wound over right side of abdomen with blackening of the skin over them;
(4) Multiple pellet wounds over back from shoulder to lumber region; multiple pellet wounds on left arm extending from shoulder to elbow;
(5) There was superficial peeling of skin on left arm, chest and abdomen;
13. He observed numerous holes made by pellets over the shirt on the body of the deceased. On dissection, he found as under:
On opening the thorax, I found subcutaneous haemorrhage on the region of walls; ribs and cartilage;
The plurae was punctured at the point of pellet injuries. There was loss of lung tissue in the upper zone of the right lung corresponding to the outer wound on the right side of the chest. The right lung was found pierced at many places by pellets. The fully lung was also found pierced at many places by pellets. In all the seven pellets were taken out from these injuries. Large vessels i.e. right axillary vessels were found torn, Larynx, trachea, pericardium and heart were found healthy and intact;
In the region of abdomen there were many pellets wounds on the walls; peritoneum had been pierced by some pellets at places. Liver, spleen and kidneys were found pierced by pellets at number of places.
14. In his opinion, the deceased died of haemorrhage from lung, liver, spleen and kidney due to injuries by gun shot. He was of the opinion that because of the blackening around the wounds, the fire-arm must have been discharged from a place close to the body. The injuries on the back reveal that they must have been fired a from distance of about 12 feet. In his opinion, injury No. 1 individually and all the injuries collectively were sufficient in the ordinary course of nature to cause death.
15. He found the following external injuries on the person of Bhagirath:
(1) An oval wound 8 cm. x 3 cm. lacerated, direction towards right shoulder extending upto right side of chest on infra-clavicular region. There was blackening of skin around the wound and there were pellet wounds around the area. The wound had penetrated deep upto the lung. There was a fracture of 2nd rib at the site of the wound and pieces of cartridge walls were found embodied in the wound, which were taken out by me;
(2) Multiple pellet wounds at right deltoid region of right arm and at right shoulder;
(3) One lacerated wound 1 cm. x 1/4 cm. on left infra-gluteal region. This was also a pellet wound;
On opening the dead-body, he found as under:
The thorax fracture of 2nd rib was found; right pleurae was found rubtured at the site of the wound. There was laceration of lung tissue at the site of the wound and one pellet was taken out of the lung tissue;
In his opinion, the deceased died of severe haemorrhage from right lung and axillary vessels caused by gun shot injury No. 1. It was sufficient in the ordinary course of nature to cause death.
16. On the person of Shivbux, he found the following injuries:
Pellet wound on left side of chest on the mammary region, on left fore-arm, from elbow to wrist and palm on posterior aspect. There were pellet wounds on left side of abdomen above umbilicus region. These were five in number. On the right side of abdomen were four pellet wounds;.
17. On opening the dead-body, he found as under:
Walls of thorax region had been pierced by pellets on mammary region. Pericardium had been piecered at four places by pellets. Left atrium and left ventricle of the heart were pierced by pellets at four sides. Right ventricle was found pierced at the one place, both the chambers of the heart were found empty. There was large quantity of blood the thorasic cavity. Two pellets were found embodied in the heart. The walls of the abdomen had been pierced by the pellets. So also peritoneum was found pierced by pellets at three places. Stomach was also found pierced at two places.
18. In his opinion, the cause of death was severe haemorrhage of heart due to piercing of heart by gun shot. Two pellets taken out from the heart. In his opinion, injury No. 1 was sufficient in the ordinary course of nature to cause death. There were no exit wounds of gun shots in the case of the three deceased-persons.
19. DW 1 Dr. Sharad Chandra found the following injuries on the person of Ram Singh when he examined him on 5-7-1973:
(1) Lacerated wound 3/4' x 1/2' x 0.1' oval in shape on the lateral aspect of the left eye;
(2) Incised wound 1-1/2' x 0.1' x 1/2' obliquely placed on the anterior aspect of left shoulder region;
(3) Incised wound 1-1-2' x 0.2' x 1/2' bone deep obliquely placed over the right parietal;
(4) Abrasion 1/4' x obliquely placed on the lateral aspect of left shoulder region;
(5) Multiple abrasions in an area of 1-1/2' x 1' on anterior aspect of right shoulder region;
(6) Sub-conjectial haemorrahage left eye flame shaped;
(7) Contusion 1' in diameter on the eye-lid and below eye of left side on the face;
(8) Contusion 1' in diameter right half of the upper one third of the chest wall 1-1/2' above the right nipple;
(9) Abrasion 5' long longitudinal placed on the right half of the upper two third of chest wall on the anterior aspect;
(10) Abrasion 4' x obliquely placed on the right side of middle one third of lateral aspect of chest wall;
(11) Abrasion 1' long obliquely placed on the postero medial aspect of lower one third of left forearm:
(12) Incised wound 2' x 1' x 1' obliquely placed on the postero-lateral aspect of lower one fourth right thing;
(13) Lacerated wound 1' x 1' x 0.1' anterior aspect of lower one third of right kg;
(14) Incised wound 3/4' x 0.2' x 0.1' on the antero-lateral aspect of upper one third of leg;
(15) Incised wound 1/2' x 0,1' x 0.1' on anterior aspect of middle one third of left leg;
All the injuries were simple. Injury Nos. 2, 3, 12, 14 and 15 were caused by sharp weapon and rest of them were caused by blunt weapon.
20. He found the following injuries on the person of Smt. Rampyari:
(1) Incised wound 3' x 1.2' x 3/4 on the inner area of right hand palm ending upto web space between thumb and index finger;
(2) Lacerated wound 2-1/2' x 1' x 0.1' on the inner aspect of left hand palm;
(3) Dislocation of M.P. joint of left thumb with head of mata carpel lying exposed in the wound mentioned at No. 2;
(4) Lacerated wound 0.2' x 0.1' transversely placed on the left half of the fore-head;
(5) Abrasion 1/2' x 0.2' on the anterior aspect of middle one third of right leg;
(6) Abrasion 1-1/2' x 0.2' postero-lateral aspect of Sower one third of left leg;
(7) Multiple abrasions in an area of 1-1/2' diameter on antero-medial aspect of left knee;
(8) Abrasion 1' long on the left half of back below lower angle of scapula;
(9) Multiple abrasions in an area of 1' diameter on an anterior aspect of lower one third of left arm;
Injury No. 3 was grievous and the rest of the injuries were simple. Injury No. 1 was caused by sharp and rest were caused by blunt weapon.
21. Dr. Prabhu Singh Daora found the following injuries on the person of Laxman Singh on examination on 6-7-1973:
(1) Lacerated wound 1' x 1/2' x 1/4' on right calf region. It was oblique in direction, and was foul smelling. Wound was old of about 48 hours duration and simple in nature and caused by blunt object;
(2) Abrasion 6' x 1/2' on the right gluteal region. It was transverse in direction and at the mid of the hip bone. Duration of the wound was about 48 hours.
22. As regards the injured Ganesh Ram, it may be mentioned that his injury report has not been produced in proof. However, the prosecution has examined Dr. Bhagwati Prasad Jangid (PW 17), who had the occasion to read the X-ray plates Ex. P/26, Ex. P/27, Ex. P/28 and Ex. P/29, Ex. P/26 reveals multiple round multi-sized radio opaque shadows in the middle third part of the right fore-arm. Ex. P. 27 reveals multiple round and multi-sized radio opaque shadow in the upper arm. Ex. P 28 reveals multiple round multi-sized radio opaque shadow in the left forearm. The X-ray plate Ex. P. 29 was of the chest and revealed 18 round radio opaque shadows in the left side of the chest and upper abdomen and one round radio opaque shadow of right side of upper part of the abdomen. All the shadows resembled pellet shadows. He prepared the X-ray report, which is Ex. P. 30.
23. It is patent on perusal of the post-mortem reports that all the three deceased had no external injuries on their persons caused by sharp weapons, so it can be taken that Ramsingh with farsi and Smt. Rampyari with gandasi, caused no injuries with the weapons which are alleged to be with them. The absence of the sharp weapon injuries on the three person of the deceased is suggestive that they were not the aggressors. On the contrary, there are blunt and sharp weapon injuries on the person of Ram Singh and Smt. Rampyari and one of the blunt weapon injuries on the person of Smt. Rampyari was grievous. The presence of the injuries on the person of Ram Singh and Ram Pyari clearly go to point out that they have been given beating by the deceased person or persons. The site-inspection memo Ex. P. 10 records that a 'Bas' lathi was lying near the dead-body of Shivbux and a farsi was lying near the dead-body of Bhagirath, and at some distance from there towards the West, a broken 'Jelly' and 'gandasi' were lying. The presence of the weapons at the spot indicates that the deceased-persons must be having these weapons with them and they remained at the spot as they were killed at the spot. The dead body of Amra was lying in Munnaram's 'Jao' but he may have left his weapon while running from the spot near the dead body of the other deceased persons. In view of the aforesaid circumstance, the learned Sessions Judge, in our opinion, was right in dis-believing the prosecution case that Ram Singh and Rampyari were armed with weapons and they exhorted Laxman Singh, who fired at the deceased and the injured Ganesh Ram.
24. The question arises whether the deceased person or persons were justified in inflicting blows on Ram Singh and Rampyari with sharp and blunt weapons and even in causing the grievous hurt to Kampyari. There was dislocation of M.P. joint of left thumb of Rampyari. For determination of this question, it is to be seen as to who was in possession of the land in question. It is an important question to be examined in this case. The prosecution case is that the land in question was in the Khatedari of Shivbux and was in his cultivatory possession and he was residing along with the other members of his family in the Dhani situated in the field. There is oral evidence consisting of PW 1 Chandra Ram, PW 2 Smt. Dhannudi, PW 3 Shivkuri, PW 4 Smt. Lachhudi, PW 5 Ganesh Ram, PW 6 Shri Kishan and PW 12 Sheoram. Apart from the members of the family of the deceased, there is oral evidence as well as of PW 1 Chandra Ram, PW 6 Shri Kishan and PW 12 Sheo Ram. From their evidence, it is amply borne out that the land was in possession of Shiv Bux and there exists a Dhani in which Shivbux was residing with their family. PW 6 Shri Kishan is the Patwari, Halka Sabalpur. He has stated that khasra No. 16 is comprised of 42 bighas, 8 biswas land. Out of which, 22 Bighas, 8 Biswas land are recorded in the name of Amar Singh s/o Bahadur Singh and rest of the land is recorded in the khatedari of Shivbux s/o Sujja and Shivbux used to pay the 'lagan' of 20 bighas. He proved the Khatoni Ex. P 5 and the mutation entry Ex. P 6. He has seated that he had visited the field in connection with 'Jinswari'. There was a Dhani of Shivbux in the field in which he was living.
25. Mr. M.R. Bhansali, learned Counsel for the appellant pointed out that the witness stated that he does not know whose cultivation is there in the field. It may be mentioned that the witness stated about the Jinswari and not about the Girdhawari and has proved that the land was recorded in the name of Shivbux (deceased). Mr. M.R. Bhansali, also pointed out that the accused persons have also produced some Revenue Record and have examined two witnesses in defence, viz., PW 3 Daula and DW 4 Amar Singh. 22 Bighas, 8 Biswas land is in the name of Amar Singh. He has stated that 20 Bighas land used to be cultivated by Laxman Singh right from the very beginning and Shivbux never cultivated the same. Laxman Singh used to reside in the Dhani and Shivbux never lived in it. Bahadur Singh s/o Bachan Singh is his father and Laxman Singh's father Dungar Singh and his father Bahadur Singh were the brothers. The accused person produced certified copy of the Jamabandi from S.Y. 2026 to 2027 (Ex. 5/1), which shows that the whole of Khasra No. 16 was recorded in the name of Bahadur Singh s/o Bachan Singh. But Ex. D 5/2 shows that by mutation No. 67 dated 23-12-1969, 20 Bighas of Khasra No. 15 were mutated in the name of Shivbux. Ex. D 6 is the mutation in the name of Amar Singh s/o Bahadur Singh, which was recorded on 12-2-1968 on account of death of Bahadur Singh, Girdhawari slips Ex. D 7 of S.Y. 2011, Ex. D 8 of S.Y. 2012 and Ex. D 9 of S.Y. 2013 are in the name of Rameshwar Singh, Ram Singh s/o Dungar Singh. A suggestion was made on behalf of the accused persons in the cross-examination of PW 5 Ganesh Ram that the land was mortgaged by Dungar Singh and Laxman Singh with Shivbux and thereafter, it was redeemed for which Ganesh deposed that it was not so told by his father. On the other hand, he has deposed that Laxman Singh and Dungar Singh had never cultivated the field and his father used to say that this land was purchased by him from Dungar Singh 20-25 years ago. The prosecution evidence further is that Laxman Singh had cut the 'Bajra Sitis' and removed long for which he was prosecuted. The S.H.O. Dungar Mal stated in the cross-examination that two challans were presented against Laxman Singh for committing trespass, in which, Laxman Singh was acquitted. PW 2 Dhannudi stated that in the theft case, Laxman Singh was acquitted. With regard to the criminal case, the version of the other witnesses is divergent. Smt. Lachhudi stated that the accused was convicted by Nawa Court and she does not know what happened in appeal Ex. P 5 and Ex. P 6 are the most material documents establishing the title and the possession complainant party over land in question. The Khatedari rights were conferred under Section 19 of the Rajasthan Tenancy Act and the land was mutated in the name of Shivbux as far back as 20-3-1969 as is evident from Ex. 6, and his name was recorded in the record of rights, i.e., in the Khatoni Ex. P 5 from S.Y. 2027 to 2030. There is no record in the name of Laxman Singh after S.Y. 2013, in which, year the girdhawari stands in the name of Rameshwar Singh. On weighing the oral and documentary evidence on record, in our opinion, it is amply proved that the title of the land vested in Shivbux and that it was in his cultivatory possession and it was he who was residing in the Dhani situated over the land. In face of the prosecution evidence; oral and documentary, reliance cannot be placed on the oral evidence of DW 3 Daula and DW 4 Amar Singh. DW 4 appears to be highly interested witness being the relative of the accused Laxman Singh. The oral evidence led by the prosecution inspires confidence if read along with the documentary evidence consisting of Ex. P 5 and Ex. P6. Thus, we agree with the finding of the learned trial judge regarding possession of the complainant party over the land in question.
26. Having found the complainant party in possession of the land, a question arises as to whether it can be said that Ram Singh and Rampyari committed a criminal trespass when they went to the field with a camel plough for ploughing the land. It cannot be disputed nor it is in dispute that Ram Singh and Rampyari went to the field with a plough for the purpose of ploughing the land. Mr. M.R. Bhansali, learned Counsel for the appellant submitted that the accused persons have wrongly been convicted of the offence under Section 447, IPC, in as much as, that Ram Singh and Rampyari went to plough the land in the bonafide exercise of their right over the land. There was no intention on their part either to commit any offence or to intimidate, insult or annoy Shivbux and his family. There was no such dominant intention. From the facts and circumstances of the case it cannot be found that the motive, aim or object of Ram Singh and Rampyari was to commit any offence or to intimidate, insult or annoy the occupants of the land. Mr. Bhansali, learned Counsel for the appellant pointed out that in the First Information Report as well as in the evidence of the prosecution witnesses, it has come that dispute over the land was going on and when there was dispute, Ram Singh and Rampyari could go over the land in a bonafide manner to exercise their rights. Mr. Bhansali pointed out that Shivkuri has stated that Rameshwar Singh and Rampyari had not ploughed the field and both of them were asked by her father-in-law and Jeth not to plough the land. It would appear that the object of Rameshwar Singh alias Ram Singh and Rampyari was to plough the land and it is with this object that they went to the field with camel plough for ploughing the land, which the deceased persons had resisted. In the back ground and in the circumstances, in which, Rameshwar Singh and Rampyari went to the field in question. Can it be said that they had no requisite intention so as to constitute an offence of criminal trespass What amounts to criminal trespass, has been laid down in Smt. Mathri & Ors v. State of Punjab : 5SCR916 . Their Lordships of the Supreme Court, after dealing with the decisions of Bombay, Calcutta, Madras and Allahabad High Courts summed up the law as under:
The correct position in law may, in our opinion, be stated thus : In order to establish that the entry on the property was with the intent to annoy, intimidate or insult, it is necessary for the Court to be satisfied that causing such annoyance, intimidation or insult was the aim of the entry; that is not sufficient for that purpose to show merely that the natural consequence of the entry was likely to be annoyance, intimidation or insult, and that this likely consequence was known to the persons entering; that in deciding whether the aim of the entry was the causing of such annoyance, intimidation or insult, the Court has to consider all the relevant circumstances including the presence of knowledge that is natural consequence would be such annoyance, intimidation or insult and including also the probability of something else than the causing of such intimidation, insult or annoyance, being the dominant intention which prompted the entry.
27. It would appear from the above observations that the aim of the entry should be annoyance, intimidation or insult and it is not sufficient for that purpose to show merely that the natural consequence of the entry is likely to be annoyance, intimidation or insult and that this likely consequence was known to the persons entering. For determination of the question of aim, motive or objective, all the relevant circumstances including the presence of knowledge that its natural consequence would be such annoyance, intimidation or insult and including also the probability of something else than the causing of such intimidation, insult or annoyance have to be taken into consideration. On the facts of that case, it was found that the criminal trespass was not committed or apprehended from the acts of Ramsingh and Ors. who entered into the property.
28. Mr. Bhansali, learned Counsel for the appellant, after citing Smt. Mathri's case (supra) referred to another decision of the Supreme Court in Rash Behari Chatterjee v. Fagu Shaw and Ors. : 1970CriLJ4 . Their Lordships of the Supreme Court after extracting the above passage from Smt. Mathri's case (supra) considered the facts of that case and observed that there cannot be any doubt that the intention of the respondent was to annoy the appellant, who was in possession of the case land. In that case, litigation relating to the title suit started in the year 1951 and it was on February 3, 1963 that the appellant was able to obtain possession. It is only after two weeks after that day that the respondents chose to trespass and start construction. Their Lordships of the Supreme Court observed that they cannot find any other dominant intention which prompted the trespass. The order of acquittal recorded in revision, was set aside.
29. Mr. Bhansali, learned Counsel for the appellant tried to emphasise that there could not be any such dominant intention on the part of Rameshwar Singh and Smt. Rampyari. When they were acquitted of the offence of theft, they could legitimately and bonafide believe that they can exercise their right over the land, so, it should be taken that there was no criminal Intent on their part while entering into the land. We are unable to agree with the submission of Mr. Bhansali. When there had been earlier criminal litigation and when the Revenue Record is in favour of the complainant party and when the day of occurrence was the day of first ploughing the land, and when the members of the complainant party were actually ploughing the land the requisite intention on the part of Rameshwar Singh and Smt. Rampyari is manifest. The dominant intention, which prompted the trespassers appears to be to cause annoyance to the occupants of the land. In the totality of the circumstances of the case, including possession and residence over the land and the previous litigation, the conclusion, in our opinion, is irresistible that both the accused-persons entered the field with the intention to annoy Shiv Bux Bhagirath and Amra, who were in possession of the land and were ploughing the same. We, therefore, hold that criminal trespass was committed by Rameshwar Singh and Smt. Rampyari.
30. Mr. Bhansali also referred a decision of the Supreme Court in Smt. Kanwal Sood v. Nawal Kishore and Anr. : 1983CriLJ173 . In that case, it was observed that 'in order to satisfy the conditions of Section 441, it must be established that the widow entered in possession over the premises with intent to commit an offence. A bare perusal of the complaint makes it abundantly clear that there is absolutely no allegation about the intention of the widow to commit any offence or to intimidate, insult or annoy any person. The appellant widow may be fondly thinking that she had a right to occupy the premises even after the death of 'S'. If a suit for eviction is filed in the Civil Court she might be in a position to vindicate her right and justify her possession. This is essentially a civil matter, which could be properly adjudicated upon by a competent Civil Court. To initiate criminal proceedings in the circumstances appears to be only an abuse of the process of the Court'. In that case, one 'S' gifted his property to a trust with condition that he would stay in the house till his death and the trust can take over the possession after that. During his life time, he invited his brother's wife, who was a widow to stay in the house with him. After the death of 'S' the widow continued to stay and she was served with a notice to quit. On failure a complaint under Section 448 was filed and the Magistrate convicted the widow to pay fine of Rs. 100/-. He further directed the widow to vacate the premises within two months. On facts, the case is distinguishable.
31. Having found that Rameshwarsingh and Smt. Rampyari committed a criminal trespass, the members of the complainant party in defence of their property had a right to cause hurts to the trespassers. The prosecution witnesses are absolutely silent about the role, which the members of the complainant party played at the time of occurrence. None of the prosecution witnesses has said that Rameshwarsingh and Smt. Rampyari were assaulted by the three deceased and by Ganesh, the presence of the injuries on the person of Rameshwarsingh and Smt. Rampyari clearly pointed out that they have been assaulted by sharp and blunt weapons and sharp and blunt weapons were found on the spot. None of the weapons can be assigned to Rameshwarsingh and Smt. Rampyari, in view of the earlier version of the prosecution witnesses, so it can be taken that the members of the complainant party were armed with weapons and they had used their weapons in giving beating to Rameshwar Singh and Smt. Rampyari. Under Section 104 of the IPC in case of offence of criminal trespass, the right of private defence does not extend to the voluntary causing of death but does extend subject to the restrictions mentioned in Section 99 to the voluntary causing to the wrong doer of any harm other than death. Under Section 105, the right of private defence of property against criminal trespass. Continues as long as the offender continues in commission of criminal trespass. Under Section 103, the right of private defence of property extends under the restrictions mentioned in Section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence committing of which occasions the exercise of the right be an offence of any of the description mentioned in that section. It may be mentioned that the offence in the nature of the criminal trespass, does not find place in Section 103, so in case of criminal trespass, the right of private defence of property does not extend to the voluntary causing of death or of any other harm to the wrong-doer, Mr. Bhansali learned Counsel for the appellant submitted that the injuries caused were disproportionate and it should be taken that the members of the complainant party exceeded their right by causing more harm than was necessary. The right can be exercised under Section 103 as well as under Section 104 subject to the restrictions mentioned in Section 99 and Section 99 clearly provides that 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. It is true that there were 15 injuries on the person of Rameshwarsingh and 9 injuries on the person of Smt. Rampyari. But from the evidence, it is clear that the trespasser has not retreated the wrong of the wrong-doers in the nature of criminal trespass continued and so long as it continued, the right of private defence of property, continued to be exercised by the members of the complainant party and the restriction provided in Section 99 in such a situation, will not be attracted. The members of the complainant party were within their right even to cause grievous hurt.
32. We may refer here to a decision cited by Mr. Bhansali in Hukam Singh and Ors. v. State of Uttar Pradesh : 1SCR601 . In that case, the appellants forcibly took two carts loaded with sugar-cane through the field in which, there were standing crops. The appellants were prevented by Harphool and a contention was advanced that the criminal trespass had come to an end when Harphool committing of trespass. It was observed that the two carts hand not left Harphool's field and reached the public passage and they entered the field when the incident took place. Therefore, the criminal trespass had not come to an end, and therefore, Harphool had the right to prevent the apppellants party from continuing to commit criminal trespass for whatever short distance they had still to cover before reaching the public pathway. It was further observed:
It is true that the appellants party had to get out of the field and that this they could not have done without committing further criminal trespass. But it does not follow that this difficult position in which the party found itself gave them any right for insisting that they must continue the criminal trespass. They had to abide by the directions of Harphool, what ever be the degree of patience required in case they were not allowed to move in any direction in order to leave the field.
Mr. Bhansali tried to take some support from the following observations:
If Harphool had started the attack in the circumstances alleged by the appellants, there may have been some scope for saying that he acted unreasonably in taking recourse to force in preference to taking recourse to public authorities or to such action, which a less obstinate person would have taken and had therefore lost any right of private defence of property against the offence of criminal trespass.
33. In this connection, suffice it to say that their Lordships of the Supreme Court proceeded to consider the question in the light of the finding recorded by the High Court and so, the question of exercise of right of private defence of the property and its extent did not arise for consideration. In that case one of the member of the appellants' party was armed with a hatched and on facts, it was observed that it is, therefore, not unreasonable to conclude that the appellant's party was prepared to use force against such object to achieve their object of taking the carts to the public path-way by a short-cut. The members of the complainant party caused as many as seven injuries resulting into the death of Harphool and the appellants' party was held guilty of offence under Section 302, read with Section 149, IPC.
34. In Janki Pasban and Ors. v. Emperor AIR 1943 Pat. 6, the petitioners were convicted for the offences under Sections 323 and 324 read with Section 114, IPC. Originally, they were convicted of the offences under Sections 147 and 148, IPC but their convictions were set aside by the Additional Sessions Judge, upon his finding that the assembly of which the accused were found to be members was not unlawful as they were entitled to defend the property, which was in their possession and resist the complaint who wanted to get possession on the strength of a 'farzi-deed'. Man Mohan, J. speaking for the court observed that the petitioners were justified in resisting the aggression of the first informant and they had a light to remove the first informant from their field provided they did not exceed the right of private defence of property. It was further observed that having regard to the nature of the injuries, it cannot be said that they exceeded the right of private defence of property, which was undoubtedly with them. In that case, simple injuries were caused.
35. In Ram Krishna Singh and Ors. v. King Emperor AIR 1922 Pat. 197, it was observed that a rightful owner is entitled to physically turn out a trespasser but is not entitled to use more force than is reasonable to defend his possession from a trespasser.
36. In Inder Singh and Anr. v. Emperor AIR 1938 Lah. 60, one of the accused was convicted under Section 302 and the other under Sections 323 and 324 IPC. A plea was urged on their behalf that since they were attacked while they were in peaceful possession of the land, they had a right of self defence. This plea was rejected in the following words:
The learned Counsel for the appellants contended that as the appellants were entitled to joint possession of the land in any case and had succeeded in obtaining peaceful possession, they had aright of private defence but this contention cannot be upheld in the circumstances of the case. The appellants had been in possession only for a couple of hours or so and the possession had never been acquiesced in by Arjan Singh and others. The possession was therefore, nothing better than mere trespass and could not give them any right of private defence. Arjan Singh and his companions had, on the other hand, a right to maintain their possession and to eject 'the appellants. If the appellants were beaten, it must have been because they refused to vacate the land. According to the provisions of Section 104 IPC. Arjan Singh and others had a right to inflict any necessary injury, short of death, in the exercise of their right of private defence.... The appellants on the other hand committed a double wrong, firstly, by trying to take unlawful possession of the land and secondly by resisting Arjan Singh and others when they tried to eject them from the land.
37. As already considered above, from the facts, which have come on record, it transpires that a criminal trespass on the part of Rameshwarsingh and Smt. Rampyari had not come to an end. As the trespass continued, the members of the complainant party were within their right to defend their property by causing not only simple but also grievous hurts and in the present case, it cannot be said that the members of the complainant party caused more harm than was necessary. The members of the complainant party had a right to turn out the trespassers and till they vacate the land, cause harm to them by inflicting blows on them and it cannot be said that the members of the complainant party in any case exceeded their right or caused more harm than was necessary for the purpose of defending their possession over the land.
38. Mr. Bhansali, learned Counsel for the appellant submitted that in the present case, the prosecution has failed to explain the injuries on the person of Rameshwar Singh, Smt. Rampyari and Laxman Singh. They have not only given any explanation, on the contrary, the prosecution witnesses made a clear statement that they did not see any injuries on their person. It is clear that the prosecution has deliberately suppressed the origin and genesis of the case and the prosecution has not come out with the true version of the occurrence. Mr. Bhansali submitted that when the accused Laxman Singh saw his brother and mother being beaten severely by Shivbux, Bhagirath, Amra and Ganesh, the accused Laxman Singh was within his right to fire shots at them. He had a reasonable apprehension that his brother and mother will be done to death. In such a situation, the accused Laxmansingh cannot be held guilty for the offences with which he was charged. Mr. Bhansali, referred to a decision in Lakshmisingh and Ors. v. State of Bihar : 1976CriLJ1736 . Their Lordships observed in the case as under:
In a murder case, non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable;
(3) That in case there is difference version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
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 probability with that of the prosecution one.
Where all the witnesses enter into a conspiracy to implicate five innocent persons in a murder case, then the back-bone of the prosecution is broken, and it would be difficult for the court to rely on such evidence to convict a single accused, particularly when the prosecution does not give any explanation for the grievous and other serious injuries on the person of one of the accused. It is a case where it is not possible to disengage the truth from falsehood, to sift the grain from the chaff. The truth and falsehood are so in-extricable mixed together that it is difficult to separate them. Indeed, if one tries to do so, it will amount to reconstructing a new case for the prosecution, which can not be done in a criminal case.'
39. Another case cited by Shri Bhansali. is Mathai Mathews v. The State of Maharashtra 1967 U.J. (S.C.) 466. In that case, it was observed that:
The prosecution evidence has not explained the injuries on the person of the accused. Neither the prosecution nor the defence came out with the true version. The trial court's conclusion that the witnesses are not reliable is not an unreasonable one. The probabilites of the case indicate that PW 2 and 3 had gathered together on that evening their friends PW 4, 5, 9, 10 and the deceased with a view to challenge Accused No. 2 and his friends and the incident took place because of the aggressive posture put forward by them. It is likely that when the appellant accused No. 2 came to the scene, the appellant was beaten by an iron-rod by the deceased and at that stage the appellant stabbed him on his chest. It is equally likely that the other persons were injured at the time when they were assaulting the appellant. If that was the real situation, which we think likely, then the appellant was well within his right in inflicting the injuries found on the deceased and PW 4 and 5. As it is not possible to place any reliance on the testimony of the eye-witnesses circumstances most favourable to the accused must be accepted. Under the circumstances the conclusion of the trial judge that on the basis of the evidence on record, it is unsafe to convict the appellant cannot be said to be an unreasonable conclusion. In a case of this nature, it is difficult to sift false-hood from truth and, therefore, quite naturally the courts have to give the benefit of doubt to the accused. Only one knife blow was given to the deceased. If as mentioned earlier, the deceased was the aggressor and that he had assaulted the appellant with an iron-rod then the appellant could have had a reasonable apprehension that there was danger to his life. Under these circumstances, he had a right to defend himself against persons, who assaulted him. It is true that no plea of self defence was taken but the facts disclosed clearly go to support such a plea. We have to take note of them.
40. Reference was also made by Mr. Bhansali to the decision of the Allahabad High Court in Ram Lakhan and Ors. v. State 1972 Cr. LJ 1007, in which, the proposition propounded by the Supreme Court in Lakshmisingh's case (supra) have been reiterated and followed.
41. The question arises whether the accused Laxmansingh can be said to have any right to defend his brother and mother by gunning down Shivbux, Bhagirath and Amra and by causing gun shot injuries on the person of Ganesh. It is true that the prosecution has not come out with a true case and the part played by the members of the complainant party has been deliberately concealed and suppressed, but on that basis, it cannot be said that the accused Laxmansingh in the circumstances, could have acted in the exercise of his right to defend his brother and mother. What ever the members of the complainant party were doing, they were doing in the exercise of their legal right to defend their property and when they were so acting, that will not give rise to the accused Laxmansingh any right of defence of person of his brother and mother. Instead of gunning down and firing shots at the complainant party, he should have asked his brother and mother to retreat and come out of the field. He had no right to fire shots at them killing three and causing injuries on the fourth. It appears that the accused Laxman Singh resorted to fire two rounds on each of the victim resulting into the death of three and serious injury to the fourth. He did not refrain himself at any stage. That clearly shows that he indulged in a murder spree and resorted to firing madly. Shivbux, and Bhagirath were gunned down on the spot whereas firing was even resorted against Amra and Ganesh, when they were fleeing from the spot. Amra had gun-shot wounds on his back. It appears that he was chased and thereafter, a shot was fired at him in the back, whereby, he fell down in Munnaram's 'Jao'. In his statement Ganesh deposed that after the fall of Shiv bux. and Bhagirath, Amra fled from the spot and was chased by Laxmansingh. Laxmansingh fired first shot at him, which hit his right hand and thereafter he fled away from there. Laxmansingh fired a second shot at him. which hit him on his left hand and by his side. Laxmansingh fired a second shot at Amra when he was climbing the boundary of their field. The other witnesses viz. PW 2 Smt. Dhannudi, PW 3Smt. Shivkuri and PW 4 Smt. Lachhudi have also deposed that the accused Laxman Singh chased Amra while he was running towards Munnaram's 'Jao' and a shot was fired by him on his back. Mr. Bhansali, submitted that PW 1 Chandraram has not adhered to the version given by him in respect of Amra in the First Information Report. In the report, his version was that the three ladies and Ganesh came running to his Dhani and divulged that their men have been killed by the accused Laxman Singh. He then observed that Amra was running ahead in his 'Jao' and Laxmansingh fired a shot at Amra from behind whereby Amra fell down. In his statement, PW 1 Chandraram stated that he saw Amra lying on the way in his 'Jao'. The ladies informed him that Amra had been killed in his 'Jao'. On the basis of changed version of PW 1 Chandraram, it cannot be found that Laxmansingh did not chase Amra. From the medical evidence, also, it appears that multiple pellet wounds over the back of Amra had no blackening. Although, on the front side wounds he had blackening, which shows that front side wounds were sustained in close range firing whereas it is not so in case of wound over the back. They appear to have been sustained by range firing. Thus, it would appear that the accused Laxmansingh continued to fire shots intentionally to cause death of Amra, while he was fleeing.
42. Thus considering the facts and circumstances of the case, it cannot be said that the accused Laxmansingh had any right of self-defence of the person of his brother and mother. On the contrary, the accused intentionally fired shots at the deceased-persons causing their death and he also made an attempt on the life of Ganesh by firing shots at him. In our opinion, the appellant Laxmansingh has been rightly convicted of the offences under Section 302, 307 and 447, IPC as the offences are amply brought home to him. There is absolutely no force in this appeal so, it is hereby dismissed The appellant Laxmansingh shall immediately surrender and the learned Sessions Judge, Merta is also directed to effect the arrest of the appellant to serve out the sentences.