H.S. Thakur, J.
1. The State has filed this appeal against the judgment and order dated August 11,1978, of the learned Sessions Judge, Mandi, Kullu & Lahaul-Spiti districts at Mandi, whereby the accused/respondents were acquitted by giving them the benefit of doubt.
2. Necessary facts to decide this appeal may be stated. The respondent Govind Ram was Charged under Sections 302, 147/149, 148/149 and 149 I.P.C. whereas the respondents Balku, Chuharu, Smt. Purnu and Gawainu were charged under Sections 147/149, 148/149 and 324 I.P.C. The prosecution case is that on June, 5, 1974 at village Rao within Police Station, Balh, all the respondents with an intention to commit .offences and to intimidate the complainant's party, formed an unlawful assembly and, armed with axes, 'drants' sickles and 'dandas' forcibly entered into the fields belonging to Bhagirath and Mania sons of Gayahru. Govind Ram respondent had an axe, Balku accused a 'drant' while accused Chuharu had also an axe. Smt. Purnu and Gawainu were armed with sickles and 'dandas' respectively. On their reaching the land in dispute, which was being cultivated by the complainant party, the respondents asked them not to plough the same as the said land was in their possession. The members of the complainant-party persisted in their right to plough the land on the ground that they had purchased the same from Shri Prakram Singh etc. the original owners, about some months back. Smt. Purnu accused cut off the yokes' strings on the bullocks. This led to a scuffle between the parties. It is alleged that Govind Ram respondent gave two axe blows on the head of Mai deceased on which Mai collapsed on the ground. It is also alleged that after this, Govind Ram respondent attempted to give an axe blow to Bhagirath (PW) but he saved himself while catching hold of the axe and with the help of Sant Ram (PW) snatched the axe from Govind Ram. Gawainu respondent is stated to have given 'danda' blows to the complainant-party and in that process injuries were received by many members of the complainant-party. At the same time, Balku respondent wanted to give a 'drant' blow to Chugha but he is stated to have saved himself by snatching the 'drant' from Balku respondent. Chuharu respondent is stated to have attacked Chugha (PW) with an axe but Chugha saved himself by leaning down and the blow of Chuharu struck Balku. Smt. Purnu is alleged to have thrown stones at the members of the complainant-party. It is alleged that when the respondents saw that Mai was dying, they ran away leaving behind their weapons of offence. All the respondents are stated to have suffered injuries during the scuffle.
3. The prosecution case is that some of the members of the complainant-party were having 'Pranths' (small round wooden sticks) for goading three pairs of bullocks that were brought in 'Rihali' to plough the disputed fields and in self defence they inflicted injuries on the persons of the respondents with those sticks. It is also the prosecution case that out of the four fields, the respondents had cultivated maize crop in two fields about 10/12 days prior to the occurrence and that on the date of occurrence, the maize had sprouted and it was 3'/4' in height. It is also in the prosecution evidence that when Chuharu respondent had cultivated the land, Bhagirath and Gayahru (P.Ws) approached the Panchayat Pradhan, Shri Puran Chand, and complained to him about the illegal possession of Chuharu respondent on the land in dispute. The Pradhan is stated to have advised them not to take law into their hands but to have resort to legal remedy.
4. The prosecution case also is that the respondents were involved in the scuffle with a view to maintain their illegal possession on the land in dispute, whereas the defence version is that they were in possession of the land since long and had sown maize crop in the entire disputed land consisting of four fields and that the maize crop had sufficiently grown and was about 9' 710' in height on the date of occurrence. The version of the respondents is that they were in settled possession of the disputed land and the complainant-party consisting of 10/12 members, formed an unlawful assembly in order to overawe them and to forcibly dispossess them from the land, entered the land in dispute and started ploughing it in spite of the fact that the maize crop of the respondents was growing thereon. According to them, the complainant-party was armed with deadly weapons like axes, 'drants', 'drantis' and 'dandas' while the respondents were doing weeding work in the fields and were not armed with the weapons as alleged by the prosecution. The plea of the respondents is that when the complainant-party attempted to destroy their crop, they were prevented from doing so but the complainant-party instead of withdrawing from the land attacked the respondents with various weapons causing multiple injuries to them. The injuries are stated to have been caused with sharp-edged weapons like axes, 'drams', 'drantis' and with 'lathis'. It is also contended by the respondents that the deceased Mai was not killed by any blows given by Govind Ram but actually the deceased attempted to strike Smt. Purnu with a 'drant' which hit her small finger. Seeing his mother in peril, the respondent Govind Ram is stated to have rushed to save her by catching hold of Mai deceased. On this, Mai-deceased is stated to have grappled with Govind Ram and while they were grappling, Sunku (PW) is stated to have aimed an axe blow on the head of Govind Ram from one side but Govind Ram by moving his head to one side saved himself and the axe blow hit Mai on his head from a side and by that single axe blow, the deceased Mai fell on the ground. On this, the members of the complainant-party are stated to have become desperate and badly mauled the members of the respondent-party and inflicted various injuries on them and that in that melee some members of the complainant-party also received injuries.
5. The prosecution examined as many as 25 witnesses to support its case. The respondents also produced two witnesses in their defence.
6. As pointed out earlier above, the learned Sessions Judge after hearing the counsel for the parties and considering the evidence on record has acquitted the respondents by giving them the benefit of doubt.
7. Shri M. R. Chaudhary, learned Assistant Advocate General, has contended that there is sufficient evidence on record to show that Shri Gayahru had been cultivating the land in dispute and ultimately the same was sold by the previous owners by a registered sale deed on April 26,1974 to his sons. A certified copy of the said deed is Ex. P.W.18/B. On this account, it is asserted that the complainant-party has been in the physical possession of the land in dispute. According to Mr. Chaudhary, the respondent-party had illegally trespassed into the land and had forcibly cultivated maize crop therein. According to him, such an act on the par t of the respondent-party amounted to an offence, as they had taken law into their own hands. It is stressed that such a wrongful act on their part could not give them any right in the land in dispute.
8. On the contrary, it is contended by Shri Bhagat Ram Sharma, learned Counsel for the respondents, that the respondents were in fact in possession of the land and the acts of the complainant-party amounted to aggression. It is emphasised by him 'that even according to the prosecution, the respondent-party had sown maize crop in the land in dispute about 10/12 days prior to the occurrence and the said crop after sprouting was 3' to 4' in height. It is contended by the learned Counsel that in fact the height of the maize crop was more than that. It is further emphasised by him that even if the maize crop sown by the respondents had grown to a height of 3' to 4', it amounted to their settled possession of the land in dispute and the only alternative under such a situation left to the complainant-party was to seek remedy in, a competent court of law. It is argued that in the aforesaid established facts and circumstances, the complainant-party can apparently be termed as aggressor. It is also pointed out that the respondent-party while doing weeding work, in the fields had a legal right to defend their property.
9. The undisputed facts that are established from the evidence on record are that:
(i) The respondent party had sown maize crop in the land in dispute 10/12 days prior to the occurrence; and
(ii) The maize crop had grown to the minimum height of 3' to 4'.
10. The question now arises whether the respondent-party can be termed as 'aggressor' or not Mr. Sharma in order to substantiate his contention has referred to a decision in Puran Singh v. State of Punjab : AIR1975SC1674 . In this judgment, the observations of the Supreme Court in Munshi Ram v. Delhi Administration AIR 1968 SC 702 : 1968 Cri LJ 806 have been extracted. The same may be reproduced for a ready reference:
It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law, he is entitled to defend his possession even against the rightful owner. But stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the. true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than necessary. Such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost. The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time, to remove the obstruction even by using necessary force.
11. In para 11 of the judgment in Puran Singh's case (supra), the Supreme Court observed as under:
11. In this case there was a concurrent finding of fact that Jamuna was in effective possession of the field on the date of occurrence and the prosecution had alleged that P.Ws.17 and 19 had taken possession of the property but the finding of the Court was that P.Ws.17 and 19 had hot been put in possession by virtue of the delivery of possession given by the Court. It was against this context that the observations referred to above were made. This Court clearly pointed out that where a trespasser was in settled possession of the land he is not entitled to be evicted except in due course of law and he is further entitled to resist or defend his possession even against the rightful owner who tries to dispossess him. The only condition, laid down by this Court was that the possession of the trespasser must be settled possession. The Court explained that the settled possession must be extended over a sufficiently long period and acquiesced in by the true owner. This particular expression has persuaded the High Court to hold that since the possession of the appellants party in this case was only a month old, it cannot be deemed to be a settled possession. We, however, think that this is not what this Court meant in defining the nature of the settled possession. It is indeed difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into a settled possession. But what this Court really meant was that the possession of a trespasser must be effective, undisturbed and to the knowledge of the owner or without any attempt, at concealment. For instance a stray or a casual act of possession would not amount to settled possession. There is no special charm or magic in the words 'settled possession' nor is it a ritualistic formula which can be confined in a strait-jacket but it has been used to mean such clear and effective possession of a person, even if he is a trespasser, who gets the right under the criminal law to defend his property against attack even by the true owner. Similarly an occupation of the property by a person as an agent or a servant at the instance of the owner will not amount to actual physical possession. Thus in our opinion the nature of possession in such cases which may entitle a trespasser to exercise the right of private defence of property and person should contain the following attributes:
(i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;
(ii) that the possession must be to the knowledge either express or implied of the owner or without any attempt at concealment and which contains an element of animus possidendi. The nature of possession of the trespasser would however be a matter to be decided on facts and circumstances of each case;
(iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner; and
(iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession, in which case the trespasser will have a right of private defence and the true owner will have no right of private defence. The principles logically flow from a long catena of cases decided by this Court as well as the other High Courts some of which have been referred to in the judgment of this Court in Munshi Ram's case AIR 1968 SC 702 : 1968 Cri LJ 806 (supra).
12. In the light of the observations of the Supreme Court in the aforesaid decision, it has to be concluded that the respondent-party was in settled possession of the land in dispute on the day of occurrence. As such, the logical result is that the respondent-party had a right to exercise their right of defence to property. This view is further corroborated by the observations made by the Supreme Court in Ram Rattan v. State of U.P. : 1977CriLJ433 . In the opening part of the judgment, their Lordships of the Supreme Court observed as under:
It is a peculiar feature of our criminal law that where a trespasser has succeeded in taking recent wrongful possession of the property vested in the public for common enjoyment, the members of the village or the real owner is not entitled in law to throw out the trespasser but have to take recourse to the legal remedies available, and if any member of the public tries to secure public property from the possession of the trespasser he is normally visited with the onerous penalty of law. This is what appears to have happened in this appeal by special leave in which the appellants appear to have got themselves involved in an armed conflict with the prosecution party resulting in the death of the deceased, injuries to some of the prosecution witnesses and injuries to three of the accused themselves.
13. Whatever may be our own view in the facts and circumstances referred to above, we are bound by the observations of the Supreme Court. As such, we have no other alternative but to hold that the complainant-party was the aggressor party and the respondent-party had a legitimate right to exercise their right of defence to the property that was in their settled possession,
14. It is contended by Mr. Chaudhary that even assuming that the respondent-party had settled possession in the land in dispute, they had exceeded their right of defence. As observed earlier above, the respondent-party had sown maize crop in the land in dispute and in one of the fields the same was destroyed due to ploughing and also a small shed constructed thereon was also destroyed.
15. The learned Sessions Judge during the course of his judgment has observed as under:
The defence counsel has further argued that the prosecution evidence to the effect that accused Govind Ram was responsible for the death of Mai deceased by giving axe blow on his head, is highly doubtful. The prosecution witnesses state that two axe blows were given on the head of Mai by Govind Ram from the front side while the accused maintain that when Mai had attacked Smt. Purnu, accused, with a 'drat' resulting in an incised wound in one of the fingers of her hand, Govind Ram accused intercepted with a view to save his mother and there was scuffle between Govind Ram accused and Mai deceased. On seeing this, Sunku PW wanted to strike accused Govind Ram with an axe, but Govind Ram smartly escaped and the axe blow struck the head of Mal from a side resulting in his collapse on the ground. This version is supported by P.W.I Dr. B. S. Vakil who has categorically stated that he found only one injury on the head of the deceased and that injury could have only been caused by one blow. In view of this the medical evidence has contradicted the eye-witness account of the prosecution and, as such, the eye-witnesses cannot be believed.
16. We have gone through the entire evidence on the record but we are inclined to endorse the view taken by the learned trial court. We are at the same time unable to persuade ourselves to take a contrary reasonable view. At any rate, a reasonable doubt has arisen in our mind whether the deceased Mai was given axe blow by Govind Ram respondent or the axe blow intended by Sunku (PW) to be given to Govind Ram respondent, struck the deceased. As such, benefit of doubt has to be given to Govind Ram respondent.
17. So far as the injuries suffered by the other members of the complainant-party and the respondent-party are concerned, they appear to be the result of scuffle between them. At any rate, the respondent-party, as observed earlier above, while exercising their right of defence to the property were entitled to resist the attempt of the complainant-party to retain their settled possession in the land in dispute. Under the circumstances, it cannot be said that the respondent-party had exceeded their right of defence. It is, however, frankly conceded by the learned Counsel for the respondents that sometime after the occurrence the complainant-party has taken the possession of the land in dispute and the sons of Gayahru, in whose favour the sale had been made by the owners, by executing a registered sale deed, are now in settled possession of the said land.
18. The inevitable conclusion that follows from the above discussion is that the learned Sessions Judge was right in acquitting the respondents by giving them the benefit of doubt.
19. The result of the above discussion is that the. appeal is dismissed.