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PETITIONER: VISHAL SINGH & ANR.

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH.

DATE OF JUDGMENT:       24/10/1997

BENCH: M.M. PUNCHHI, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                THE 24TH DAY OF OCTOBER, 1997 Present:               Hon’ble Mr. Justice M.M.Punchhi               Hon’ble Mr. Justice M. Srinivasan Rajender Singh, Sr. Adv., Chander Bhan, Any Mohla and Ranjit Kumar, Advs. with him for the appellant in Crl.A.No. 777/94 Dinesh  Kr.Garg,   Adv.   (NP),   for   the   appellant   in Crl.A.No.778/94 Gulab Gupta,  Sr.Adv., (Sakesh  Kumar)  Adv.  for  Uma  Nath Singh, Adv. with him for the Respondent                       J U D G M E N T      The following Judgment of the Court was delivered: Hon’ble Srinivasan, J.      The appellants  in these  two appeals were accused 1, 2 and 3 before the Court of Sessions Judge, Tikamgarh,, Madhya Pradesh in  Sessions Case  No. 39/01.  There were 22 accused apart from  4 persons who had absconded. Some were convicted by the  Sessions Judge vide his judgment dated 1.10.1993. On appeals,  the   High  Court  confirmed  the  conviction  and sentence of  these three  appellants with  some modification and acquitted the rest.      On 25.6.1990  the accused the 4 absconding persons were said to  be cultivating  a land  known as  ‘Kothotiya  Har’. Tough pattas  had been  issued in  favour  of  some  of  the accused and  the land  was registered  in their  name, there were disputes relating to the same which were pending before the Revenue  Authorities. The  rival claimants claimed to be in possession  of the  land and  were protesting against the claim of  the accused  and resisting  of the attempts of the accused to  plough the  land.  On  the  aforesaid  date  the occurrence took  place between  the two  groups resulting in the death  of 4  persons  of  the  complainants  group.  The appellants and  the other accused were charged with offences under Section  147, 148,  302/149 and  307/149 I.P.C. Two of them  were  also  charged  for  having  hatched  a  criminal conspiracy for  committing the  offences. The Sessions Judge acquitted 9  accused including  those charged  with criminal conspiracy and convicted the remaining 13 and sentenced them to various terms of imprisonment including sentence of death awarded against the appellants in Criminal Appeal No. 777 of

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1994. The High Court acquitted 10 more persons and confirmed the conviction  and sentence of three of them. So far as the appellants in  Criminal Appeal No. 777 of 1994 are concerned the High  Court converted  the sentence  of  death  to  life imprisonment and also set aside the conviction under Section 147 I.P.C.      In these appeals learned counsel for the appellants has reiterated the  contentions put  forward before  the  courts below. According to learned counsel the appellants were only exercising the  right of  self defence  and the facts of the case as  established would  show that it was the other party who fired  in the  first instance  and  the  appellants  had necessarily to  defend themselves  by using  weapons. It  is contended that  both courts having found against the case of the  prosecution   that  there  was  a  conspiracy  for  the commission of  offence on  the previous  night, and the case that there  was an  attempt to  compromise the  land dispute between the  parties ought to have upheld the defence of the appellants. According to learned counsel the following facts are relevant and should be given due weight.      1.   The  land  had  been  registered  in  the  revenue           records in  the names  of the appellants and there           is a  presumption of  possession being  with them.           Consequently the courts ought to have proceeded on           the  footing   that  the   other  party   was  the           aggression and  made attempt  to  trespass  o  the           land.      2.   There is  ample evidence  to show that the members           of the  other party  had lethal  weapons including           fire arms  when they  attempted to trespass on the           land.      3.   There were empty cartridges near the bodies of the           deceased which  prove that  the deceased had first           used fire  arms. Learned counsel concluded that if           at all,  the appellants could only be said to have           exceeded the right of self-defence.      We  are   unable  to   accept  any   of  the  aforesaid contentions. No  doubt the  entry in  the revenue record was made in  favour of  the appellants and their men but such an entry could  only give  rise to  a  rebuttable  presumption. Admittedly, the  proceedings were  pending and  the  parties were challenging  the correctness  of entries in the revenue records. On  the basis  of the  evidence on record, the High Court has  come to  the conclusion  that the  appellants and their men  could not be said to have been in possession. The High Court has observed that the statutory presumption under Section 117  of the  Madhya Pradesh  Land Revenue Code, 1939 was rebutted by the evidence of Pw 23 and others who claimed that the  disputed land  was in  their possession. We do not find any  error in  the appreciation of the evidence made by the High  Court. Leaned counsel for the respondent, State of Madhya Pradesh  has drawn  our  attention  to  the  relevant records and submitted that the entries in the records do not substantiate the case of the appellants as the name of other persons were  also mentioned therein as in possession. It is unnecessary for  us to consider that aspect of the matter in these proceedings.  It is  sufficient to  point out that the conclusion of  the High  Court on the question of possession does not suffer from any error.      Even assuming  for the  sake of  argument  that  actual possession was with the appellants that would not enable the appellants to  contend that they could use fire arms or such other weapons  which could cause death to other persons even if such  other persons  were about  to trespass on the land. The High  Court has  found that  there was  no  evidence  on

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record to provide that the deceased and the members of their party were  armed with  guns and  such other  weapons. It is also found that there is no evidence an record to prove that the deceased had fired in the first instance. As regards the contention that  the empty  cartridges were  found near  the dead bodies,  the High  Court has  discussed the  matter  at length and  come to  the conclusion that there were no empty cartridges but  there were  only plastic  tiklis.  The  most important aspect  of the  matter that has been taken note of by the High Court is that none of the members of the accused party sustained  any injury  whatsoever. The entire evidence has been considered by the High Court and we do not find any justification to differ from its view.      Learned counsel  for the  appellants laid  considerable stress on  the statement  of Pw 6. In the deposition of Pw 6 it has  been recorded that "Muratsingh, Chandrabhan Vagairah ne 2-2,  3-3 fire  kiye." Learned counsel has contended that the said  statement proves  clearly that it was the party of the deceased  who used  the fire  arms in the first instance and the appellants had the necessity of determine themselves by using  their weapons.   The High Court has discussed this aspect of the matter and found that there is some mistake in the recording  of the  evidence which  was  obvious  in  the context. Learned  counsel vehemently  argued that  once  the evidence was  read out  to the  witness and  signed  by  the Sessions judge  it was  not open  to the  court to  read  it differently. On  a perusal  of the  entire deposition of the witness, it  is clear  that there  was some  mistake in  the recording of  the particular sentence. As pointed out by the High Court,  it was  not the suggestion of the appellants to any of the witness that the deceased had fire-arms the them. We do  not find any justification to differ from the view of the High  Court as  it has been arrived at after taking into consideration the entire evidence on  record.      In the  result we  are unable to agree with the learned counsel for  the appellants  that they were exercising their of self-defence.  we  have  no  hesitation  to  confirm  the judgment of  the High  Court and the sentence awarded by the High Court. Both the appeals fail and are dismissed.