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PETITIONER: STATE OF RAJASTHAN ETC., GOKULA AND ANOTHER

       Vs.

RESPONDENT: RAM BHAROSI & ORS., STATE OF RAJASTHAN

DATE OF JUDGMENT:       12/08/1998

BENCH: M.K. MUKHERJEE, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:                        THE 12TH DAY OF AUGUST, 1998 present:               Hon’ble Mr. Justice M.K.Mukherjee               Hon’ble Mr. Justice D.P. Wadhwa Aruneshwar  Gupta   and  Ms.  Reena  Bagga,  Advs.  for  the appellants Ashok K.Mahajan, Adv. for the Respondents                       J U D G M E N T The following Judgment of the Court was delivered:                             WITH          CRIMINAL MISCELLANEOUS PETITION NO. 440/98                              IN               CRIMINAL APPEAL NO. 808 PF 1998           ----------------------------------------         (Arising out of SLP (CRL.) No. 2625 of 1998) D.P.Wadhwa J.      We condone  delay in  SLP (Crl.)  No.-----of  1998  and grant leave to appeal.      We heard both the appeals together.      State of  Rajasthan is  aggrieved by the judgment dated May 1,  1996 of  the Division  Bench of  the Rajasthan  High Court (Jaipur Bench) for two reasons: (1) acquitting Natthi, Karan Singh  and  Ram  Bharosi  of  offences  under  Section 302/149, 149  and 447  Indian Penal  Code  (IPC  for  short) though  maintaining   their  conviction  for  offence  under Section 323  IPC but reducing their sentence to the rigorous imprisonment already  under gone by them; and (2) acquitting Makhan and  Gokula of  charges under  Sections 302, 148, 447 and 323  IPC and instead convicting each of them for offence under  Section  307  IPC  and  sentencing  them  to  undergo rigorous imprisonment  for seven  years and  to  a  fine  of Rs.2000/-  and   in  default  to  undergo  further  rigorous imprisonment for six months. Gokula and Makhan have appealed against the  same very judgment against their conviction and sentence.      Additional  Sessions  Judge,  Bayana  (Bharatpur),  who tried  eight  persons,  by  judgment  dated  June  18,  1994 convicted makhan  and  Gokula  under  Section  302  IPC  and Natthi, Karan  Singh and  Ram Bharosi under Sections 302/149 IPC and  sentenced all  five of  them  to  undergo  rigorous

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imprisonment for  life and  fine of  Rs.500/-  each  and  in default of  payment of  fine  to  undergo  further  rigorous imprisonment for  six months. All the five accused were also convicted for  offences under  Sections 148, 447 and 323 IPC and each  of them  separately sentenced  to undergo rigorous imprisonment respectively  for one  year, six months and six months. Three  remaining accused, namely, Meera, Phoolan Dei and Somoti  were acquitted.  It was against their conviction and sentence that the five accused filed appeals in the High Court which  by impugned  judgment reversed  the convictions and sentences  passed by  the  learned  Additional  Sessions Judge and  as aforementioned.  We may  also  note  that  the police  had   also  submitted  chalans  for  offences  under Sections 3/25  Arms Act,  1959. At  the end  of  the  trial, however, it was found that no charge had been framed against accused under  these offences  and consequently  there could not be any conviction against any of the accused.      The incident  out  of  which  these  proceedings  arose occurred on  August 6,  1992 around  3.00 p.m.  The  dispute related to  the ownership  and  possession  of  a  piece  of agricultural land situated in village Milsuma, falling under the jurisdiction  of Roopwas  Police Station.  Deceased Shiv Ram along  with his  nephew Vijay  Kumar alias Neta had gone towards the  land on  a tractor. He found that all the eight accused were  ploughing their  (Shiv  Ram’s  family)  millet crops which  they had  sown a  month  or  so  earlier.  When deceased Shiv Ram questioned the accused as to why they were ploughing the  filed belonging  to their family he was fired upon, given  lathi blows  and stones  were hurled at him. On August 8,  1992 at  about 4.25  p.m. Shiv  Ram died  in  the hospital on  account of injuries suffered by hi. Vijay Kumar in  the   process  also   suffered  minor   injuries.  First Information Report  of the  incident was  lodged by Narender Singh, brother  of deceased  Shiv Ram  on August  7, 1992 at 7.00 p.m.  His explanation  for delay  in recording  FIR has been accepted by both the Sessions Court and the High Court. It was  that he  had gone  to Bharatpur  and returned to his village during  the night  of August  6/7, 1992 at 2.00 a.m. when he  was told  about the incident and the fact that Shiv Ram, who  had suffered  injuries, was  taken to  hospital at Bharatpur.  Narender   Singh  rushed   to  Bharatpur   where condition of  Shiv Ram  was serious and on the advice of the doctors Shiv  Ram was taken to the hospital in Agra where be succumbed to  his injuries.  Narender Singh  in  his  report recorded as under :-      "My  father   has  five  Bighas  of      (agriculture) Patia  Chock land  at      Milsuma under  his  possession  and      Khatedari in  which we sowed millet      and yesterday  i.e. on  6.8.1992 at      2.00-3.00 P.M.  my younger  brother      Shivram and my son Ajay Kumar alias      Neta  hereinafter  referred  to  as      Vijay Kumar  alias Neta went to see      the fields  where  Natthi,  Gokula,      Karan Singh,  Ram Bharosi,  sons of      Tunda Makhan  S/o Natthi,  by caste      Gaderia  R/o   Nagla   Heas   Mauza      Milsama, accompanied  by a girl and      two women  were found  spoiling our      field in  which we had sown millet.      Who Shivram admonished them, Makhan      and  Gokula   started   to   shower      bullets, in  the  result  of  which      Shivram got hurt in various places.

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    As his  condition was  serious,  he      was referred  to Agra hospital from      Bharatpur. He  is still  in serious      condition. The  women pelted stones      and the  rest of  the  people  gave      blown lathies.  When I  reached the      village at  2 O’clock in the night,      I came to know about this incident.      On hue and cry being raised, Murari      alias Gharua, Ram Sharan S/o Munshi      Thakuar of  Milsama came  there who      saw the  whole incident. Ajay Kumar      has also got injured."      On the basis of the report so lodged by Narender Singh, a case  was  firstly  registered  against  the  accused  for offence under  Section 307  IPC and other sections and after Shiv Ram  expired Section  302 IPC  was added  in the  case. Accused  were  arrested  on  various  dates  and  recoveries effected.  After   the  completion   of  the   investigation ’challan’ was  filed against  the accused  in the  court and they were put on trial. Apart from the testimony of doctors, investigating officers, ’halka’ patwari there were three eye witnesses, namely.  Murari, Ram Sharan and Vijay Kumar whose statements were  recorded. Ram  Bharosi accused  appeared in his defence  under Section  315 of  the  Criminal  Procedure Code. Accused  Gokula, Ram  Bharosi, Natthi  and Karan Singh are brothers  while accused  Makhan is  son of Natthi. Their defence was  that they were in possession and cultivation of the land  and complainant  partly wanted to usurp their land and fabricated a false case against them. Ram Bharosi in his statement before the court said that the land was entered in the name  of his  father in the revenue record and after his death it  was mutated  in the  names  of  his  sons  Natthi, Gokula, Karan Singh and Ram Bharosi. The mutation itself was attested by  Kishan Singh  Sarpanch, father  of the deceased Shiv Ram.  Ram Bharosi said that Kishan Singh had obtained a decree  by   playing  fraud  upon  court  of  the  Assistant Collector,  Bayana   in  January   1987  which   decree  was challenged in  a civil  suit filed  in the  Court of Munsif, Bayana by Ram Bharosi and his brothers. Ram Bharosi produced a  certified  copy  of  the  plaint  in  that  suit  wherein allegations were  made that  Kishan Singh  in collusion with the process  server obtained  a forged  report of service of summons and  obtained ex-parte decree. After Ram Bharosi and his brothers  came to  know  of  the  ex-parte  decree  they instituted a  civil suit  against Kishan Singh in July, 1987 wherein the  court ordered  maintenance of  status quo. That order was  still subsisting on the date of the incident. The order of  mutation in  the names  of  Ram  Bharosi  and  his brothers was  also filed  which is  dated February 23, 1975, which showed  that the  land  was  in  possession  of  these persons. On  this basis  High Court  concluded  that  Kishan Singh being  Sarpanch took  undue advantage  of his position and was  successful in  making changes in revenue record and getting mutation  of land  in his name on account of the ex- parte decree  which was  under challenge  and there  was  an order of  maintenance of  status quo.  According to the High Court it were the accused who were in possession of the land and were  ploughing the  same on  the date of occurrence and that the  complainant party  was the  aggressor. High  Court said the  trial court  erred in  holding  that  it  was  the complainant party which was in possession.  Judgement of the High Court does not at all refer to the evidence produced by the prosecution  on the basis of which the complainant patty claimed  ownership  and  possession.  It  would,  therefore,

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appear that the appreciation of the evidence on the question of  the  possession  was  one  sided.  High  Court  was  not examining the  conduct of  Kishan Singh.  Admittedly on  the basis of  the ex-parte  decree  mutation  of  the  land  was entered in  the name  of Kishan  Singh. Revenue  records  of Jamabandi and  Khasra Girdavari  showed that  it was  Kishan Singh who  was in possession of the land and was cultivating the same.  High Court has not referred to the finding of the trial court  that one  month before the date of the incident the complainant  party had sown millet on the land which was growing at the time the accused were ploughing the field. On one hand  there were  documents from  the revenue records of the village filed by the prosecution which showed possession of the  complainant party  on the  date of  the incident and there was  other set  of revenue record filed by the accused which showed  that as  far back  in 1975 it were the accused who were  in possession  of the land. We have not understood the logic  of the High Court judgment in not considering the evidence filed  by the  prosecution as  to the possession of the land  by the  complainant party.  On the  basis  of  the finding that  it was  the complainant  party which  was  the aggressor High Court said that the accused could not be held quilty for  committing offences  under Section  148, 149 and 447 IPC  and that neither they were sharing common intention nor were  they members  of unlawful assembly at the relevant time and,  therefore, each  of the  accused  could  be  held responsible for  his individual  act. High  Court said  that there were  no reliable  evidence  on  record  which  proved whether the  fatal injury  on the  neck of the deceased Shiv Ram was  caused by  Makhan or Gokula and that in the absence of the evidence to establish that their common intention was to  cause  death  it  would  appear  that  they  had  common intention of  causing injuries  which could  be dangerous to life and  each of  them would be quilty of the offence under Section 307  IPC. Then  the High  Court examined  the charge under Section  323 IPC  against accused  Natthi, Karan Singh and Ram  Bharosi. It  examined the  statements  of  the  eye witnesses Murari,  Vijay and  Ram Sharan  and concluded that there was  no reason  to  disbelieve  these  witnesses  that Natthi,  Karan  Singh  and  Ram  Bharosi  did  cause  simple injuries on the person of deceased Shiv Ram and Vijay Singh. High Court  did accept  the version of the eye witnesses and the  occurrence  as  it  took  place.  To  that  extent  the prosecutions’s case  was accepted.  Finally the  High  Court said: "the  upshot of the above discussion is that appellant Makhan and  Gokula are  guilty of  committing offence  under section 307  IPC and  the appellants Natthi, Karan Singh and Ram Bharosi  are guilty  of committing offence under section 323 IPC"      To us  the whole discussion in the judgment of the High Court appears to be rather inexplicable.      About the  incident as it happened and as was projected by the  prosecution have  been accepted  by both  the  trial court and  the High  Court. Deceased  Shiv Ram  suffered gun shot injuries in his face at the hands of Makhan and Gokula. It were  these gun shot injuries to which Shiv Ram succumbed and sufficient  in the  ordinary course  of nature  to cause death. Vijay  Kumar also suffered simple injuries from blunt weapon. So did Shiv Ram also suffer both simple and grievous injuries caused  by lathi blows given by Natthi, Karan Singh and Ram Bharosi and allegedly by pelting of stones. As noted above, recoveries  of fire  arms and lathis were effected on the basis  of statements  recorded under  Section 27  of the Evidence Act.  According  to  the  report  of  the  Forensic Science Laboratory  (FSL) firing was made from a fire arm so

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recovered though  it was  not possible to determine the time of firing.      In our  view High  Court was  not right in over-turning the finding  of the trial court without proper consideration of evidence  on record  that it  was the  complainant  party which was  in possession  of the  land on  the date  of  the incident and  that the  accused trespassed  into  that  land fully armed  with fire  arms and  lathis with  the object of killing any  one who  would obstruct them in their design of taking possession  of the  land. In  such circumstances  the defence put  forward by  the accused  that they  were acting under the  right of  self defence  cannot be  accepted.  The accused party  was full armed. When Shiv Ram and Vijay Kumar went to  the land, they were unarmed. They found the accused were already  ploughing the  land. When  Shiv Ram questioned them as  to what they were doing he was fired upon by Makhan and Gokula and other accused showered lathi blows on him and on Vijay Kumar.      On the plea of right of private defence advanced by the accused we may refer to the provisions of Section 97 and 103 IPC. Section  97 deals  with right of private defence of the body and  of property  and Section  103 prescribes  when the right of  private defence  of property  extends  to  causing death. These two section are as under :-      "97. Right  of private  defence  of      the body  and of  property.-  Every      person has  a right, subject to the      restrictions contained  in  Section      99, to defend-           First -  His own body, and the      body of  any other  person, against      any  offence  affecting  the  human      body;           Secondly   -   The   property,      whether movable  or  immovable,  of      himself  or  of  any  other  person      against any act which is an offence      falling  under  the  definition  of      theft, robbery mischief or criminal      trespass, or which is an attempt to      commit theft,  robbery, mischief or      criminal trespass."      "103.- When  the right  of  private      defence  of   property  extends  to      causing  death.-   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, the  committing of      which, or  the attempting to commit      which, occasions  the  exercise  of      the right, be an offence of any the      descriptions            hereinafter      enumerated, namely:-           First.- Robbery;           Secondly.-  House-breaking  by      night;           Thirdly.-  Mischief   by  fire      committed on  any building, tent or      vessel,  which  building,  tent  or      vessel is used as a human dwelling,      or as  a place  for the  custody of      property;

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         Fourthly.- Theft,  mischief or      house-trespass,     under      such      circumstances  as   may  reasonable      cause apprehension  that  death  or      grievous   hurt    will   be    the      consequence,  if   such  right   of      private defence is not exercised."      Though there  would be  right of  private defence under Section  97   IPC  when  offence  of  criminal  trespass  or attempting criminal trespass is committed, under Section 103 IPC it  is only  in the case of house trespass that right of private defence  can extend to causing death. That is not he case here.  On the  assumption that it was the accused party which was  in possession of the land the accused party which was in  possession of  the land  the complainant party could not have  said  to  have  committed  or  attempted  to  have committed offence  of criminal  trespass. Both  Shiv Ram and Vijay Kumar  were unarmed.  High Court  has not  reached any finding on  the assumption,  which we  are drawing,  if  the complainant party  could be  said to  have committed or even attempted to  have committed  criminal trespass. Section 441 IPC defines criminal trespass and is as under:-      "441. Criminal  trespass.-  Whoever      enters into or upon property in the      possession of  another with  intent      to  commit   an   offence   or   to      intimidate,  insult  or  annoy  any      person  in   possession   of   such      property,           or  having   lawfully  entered      into   or   upon   such   property,      unlawfully   remains   there   with      intent   thereby   to   intimidate,      insult or annoy any such person, or      with intent to commit an offence,           is said  to  commit  "criminal      trespass"."      There is  nothing to show that Shiv Ram and Vijay Kumar entered upon  the land in question with the intent to commit an offence  or to  intimidate, insult  or annoy  the accused party.      It was  then submitted  before us  that in  nay case in could a  case of  culpable homicide  and not  murder falling under Section  300 IPC. Explanation (2) of Section 300 is as under:-      "Explanation 2.-  Culpable homicide      is not  murder if  the offender, in      the exercise  in good, faith of the      right of  private defence of person      or  property,   exceeds  the  power      given to  him by law and causes the      death of the person against whom he      is exercising such right of defence      without premeditation,  and without      any intention  of doing  more  harm      than is  necessary for  the purpose      of such defence."      In our  opinion  this  would  not  apply  as  form  the findings on  record it is clear that it was not a case where the accuses were exercising right of private defence without premeditation, and  without any intention of doing more harm than was  necessary for  the purpose  of  self-defence.  The accused were  there fully  armed with premeditation to cause death and  it could  not be  said that they did not have the intention of  doing more  harm than  was necessary  for  the

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purpose of  private defence. Clearly use of deadly force was not justified  merely to  expel Shiv  Ram and  Vijay  Kumar, alleged trespassers.  It was nowhere the case of the defence that there was no other way of getting them out of the land. The occasion  certainly did  not warrant any action of self- defence.      In the case of Rajinder v. State of Haryana (1995 5 SCC 187) where  one of  us (Mukherjee,J.) was a party this Court was considering  the  issue  of  right  of  private  defence available to  accused under  the provisions  of  the  Indian Penal Code.  The court said that the fascicle of Sections 96 to 106  IPC codify  the entire  law  relating  to  right  of private defence  of person and property including the extent of and  the limitation  to exercise  of such  right. In that case after  examining the  record that Court was of the view that the  only legitimate and reasonable  inference that can the only  legitimate and  reasonable inference  that can  be drawn is  that the  accused party  had gone  to the disputed land with  a determination  to cultivate  it and,  for  that purpose, fully  prepared  to  thwart  any  attempt  made  by complainant party  to disturb  such cultivation and meet any eventuality. After  referring to  the provisions  of various Sections aforementioned, this Court  observed as under :-      "It  is   evident  from  the  above      provision that  unauthorised  entry      into  or   upon  property   in  the      possession of another or unlawfully      remaining there  after lawful entry      can  answer   the   definition   of      criminal trespass  it, and only if,      such   entry    can   answer    the      definition of criminal trespass if,      and only it, such entry or unlawful      remaining is  with  the  intent  to      commit an offence or to intimidate,      insult  or   annoy  the  person  in      possession  of   the  property.  In      other  words,  unless  any  of  the      intentions referred  in Section 441      is proved  no offence  of  criminal      trespass can  be said  to have been      committed. Needless to say, such an      intention has  to be  gathered from      the facts  and circumstances  of  a      given case.  Judged in the light of      the above  principles it  cannot be      said  that  the  complainant  party      committed the  offence of "criminal      trespass"     for      they     had      unauthorisedly  entered   into  the      disputed   land,   which   was   in      possession of  the  accused  party,      only  to  persuade  the  latter  to      party, only  to persuade the latter      to withdraw  thereupon and not with      any intention to commit any offence      or to  insult, intimidate  or annoy      them. Indeed  there is  not an iota      of material  on record to infer any      such  intention.  That  necessarily      means that the accused party had no      right   of   private   defence   to      property entitling  them to  launch      the  murderous   attack.   On   the      contrary, such murderous attack not

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    only gave  contrary, such murderous      attack   not    only    gave    the      complainant  party   the  right  to      strike  back  in  self-defence  but      disentitled  the  accused  to  even      claim the  right to private defence      of person.      We hasten  to add,  that even if we      had  found   that  the  complainant      party  had   criminally  trespassed      into the land entitling the accused      party to  exercise their  right, of      private defence  we would  not have      been justified  in  disturbing  the      convictions under  Section 302 read      with Section  149 IPC,  for Section      104  IPC  expressly  provides  that      right of  private  defence  against      "criminal trespass" does not extend      to the  voluntary causing  of death      and Exception  2 to Section 300 IPC      has no  manner of  application here      as the  attack by the accused party      was  premeditated   and   with   an      intention of  doing more  harm than      was necessary  for the  purpose  of      private defence,  which is  evident      from the  injuries sustained by the      three  deceased,   both   regarding      severity and  number as compared to      those received  by the four accused      persons. However,  in that  case we      might have  persuaded ourselves  to      set aside  the convictions  for the      minor offences  only, but then that      would have been, needless to say, a      poor solace to the appellants."      State of  law is  explicit. In  this view of the matter the High Court was not right in its conclusion. The judgment of the  High Court  cannot be  sustained either in law or on the facts  of the  case. We,  therefore, allow  the Criminal Appeal filed  by the  State, set  aside the  judgment of the High Court  and restore  that of the trail court. The result is that  Makhan and  Gokula are  convicted under Section 302 IPC and  each of  them sentenced to undergo imprisonment for life and  a fine  of Rs.500/-  and in  default of payment of fine  to  undergo  further  rigorous  imprisonment  for  six months. Natthi,  Karan Singh  and Ram  Bharosi are convicted for offence  under Section  302/149 IPC and are sentenced to imprisonment for  life and  a  fine  Rs.500/-  each  and  in default of  payment of  fine  to  undergo  further  rigorous imprisonment for  six months.  All the  accuses respondents, namely, Gokula,  Makhan, Natthi, Karan Singh and Ram Bharosi are further  convicted for  offences under Sections 148, 447 and 323  IPC and  sentenced to undergo rigorous imprisonment for one  year, six  months and  six months respectively. The substantive sentences  shall run concurrently. Bail bonds of Makhan and  Gokula are  cancelled. They  shall be taken into custody forthwith.  All the  five accused-respondents  shall undergo their  respective sentences.  The appeal,  filed  by Makhan and Gokula is dismissed.