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PETITIONER: RAJINDER & ORS.

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT12/07/1995

BENCH: MUKHERJEE M.K. (J) BENCH: MUKHERJEE M.K. (J) ANAND, A.S. (J)

CITATION:  1995 SCC  (5) 187        JT 1995 (5)   272  1995 SCALE  (4)379

ACT:

HEADNOTE:

JUDGMENT:           THE 12TH DAY OF JULY 1995 Present:-           Hon’ble Dr.Justice A.S Anand           Hon’ble Mr.Justice M.K.Mukherjee Mr.R.K .Jain, Sr.Adv. and mr.Ravinder Bana, Adv. with him for the Appellants. Mr.D.B. Vohra, Mr. K.C.Bajaj,Ms. Indu malhotra, Advs. for the respondent. Mr.R.L.Kohli,Sr.Adv.Mrs.Rani Chhabra, Adv. with him for the complainant.                J U D G M E N T The following Judgement of the court was delivered:           IN THE SUPREME COURT OF INDIA           CRIMINAL APPELLATE JURISDICTION           CRIMINAL APPEAL NO.125 OF 1968 Rajinder & Ors.                         .....appellants           Versus State of Haryana                        .....Respondent                     J U D G M E N T M.K. MUKHERJEE. J.      The eighteen  appellants herein  along with  ten others were indicated  for an  incident that took place on november 17 1985  in village  Lawa Khurd within the Police station of Bahadurgarh in  which three  persons were killed and several injured. Against one of them a charge under Section 6 of the Terrorist and  Distrubtive Activities (Prevention) Act, 1985 (Act for  short) read  with sections  25 and  27 of the Arms Act, 1959 was also framed and therefore they were tried by a Designated Court  constituted under Section 9 of the Act. on conclusion of the trial, the Court, while recording an order of acquittal  against ten  co-accused in  respect of all the charges levelled  against  them,  convicted  the  appellants under    Sections     148,    302/149     (three    counts), 326/149.325/149,324/149 and 323/149 of the Indian Penal code (I.P.C.for short).  Besides,  two  of  the  appellants  were

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convicted under  Section  307  I.P.C.(two  counts)  and  the remaining sixteen  were convicted for the same offences with the aid  of  Section  149  I.P.C.  for  the  convictions  so recorded the appellants were sentenced to different terms of imprisonment, including  life. The above order of conviction and sentence  is under  challenge in this appeal filed under Section 16 of the Act.      The prosecution  case as  disclosed by the evidence led at the  trial is  as under; One Prem Raj was the owner of 19 killas of  land in  village Lawa khurd. He died in May, 1982 leaving behind a will whereby he had bequeathed that land to his only  son Shri  Krishan. Consequent  upon Shri Krishan’s death in  April, 1983  his wife Sm.Krishna (PW17) became the owner thereof.  While in  possession of the land she entered into an  agreement with  mange Ram (PW19) on November 4,1985 for its  sale for  a total  consideration  of  Rs.2,00,000/- and,on receipt  of a  sum of  Rs.50,000/- out  of  the  said amount at  the time  of execution  of the deed of agreement, handed  over  the  possession  to  Mange  Ram.  On  november 12,1985, the  appellant Rajinder  singh, claiming himself to be one  of the  owners of the said land (hereinafter refered to as  disputed land’),  as an  heir of  Prem  Raj,  and  in possession thereof,  lodged  a  complaint  with  the  police alleging  that   Mange  Ram   and  his  men  had  criminally trespassed therein  and cestroyed  the crops  he  had  grown thereon.  On   that  report   Bahadurgarh   Police   Station registered a  case being  No. 532  dated 12.11.1985  against Mange Ram  and others  put  it  ultimately  ended  in  their discharge  as   the  police  found,  on  investigation,  the accusation to be false.      The prosecution version of the incident that took place on  November  17,1985  is  that  at  or  about  10  A.M.when Sm.Krishan (P.W.13),  niece of  Mange Ram.  Her  father  Ran Singh (deceased),her  uncles Rattan  Singh  (deceased),  and Dhan Singh,  her cousin  Satabir (deceased),  her sister Ms. Kamlesh (P.W.14).  her brother Balbir Singh (P.W.15) and her sister  -   in  Law  Sm.Rajo  (P.W.16)  and  Sm.Ramesh  were cultivating their  ancestral land, which is at a distance of one Killa  from the disputed land, Malak ram and Ved Prakash (two of  the appellants) came there (the disputed land) with two camel-  ploughs. A  few  minutes  thereafter  the  other accused persons  came there  in three tempos and one tractor armed with  various weapons.  Reaching there  they asked Ved Prakash and  Malak Ram  as  to  why  they  had  not  started ploughing.  On   being  so   encouraged  when  they  started ploughing the disputed land, Sm.Krishna along with her eight companions went there and implored the accused not to plough as that  land had  been purchased and ploughed by them. then Ram Karan  (since acouitted) instigated the other accused to kill them.  Immediately thereupon, the appellants Bhup Singh and Ishwar.  Who were two of the tempo drivers started their tempos and  dashed against   Rattan Singh, Ran Singh, Satbir Sing and  Sm. Kamlesh  as a  result of which they fell down. Then the  other accused  persons started  hitting them  with jailis, lathis,  balams and  pharsas as  a result  of  which Rattan Singh,  Ram Singh  and satbir Singh fell down dead at the spot  while others  sustained injuries  - some  of  them grievous. All  the appellants  then left  the place  leaving behind two tempos and the camel ploughs.      Sm. Krishna who had also sustained some injuries at the hands of the miscreants rushed to her house and narrated the incident to Mange Ram. Both of them then left for the Police Station to  lodge an  information about  the incident,  when they arrived  at the  local bus stand for that purpose, they met Police  Inspector Rattan  singh (PW22),  who along  with

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other police  personal was coming to their village in a jeep for investigating into the case lodged on the information of appellant Ranjinder  Singh on  12.11.1985.P.W22 recorded the statement of  Sm.Krishna at the bus stand and sent it to the police  station   through  Constable   Rambhagat,  who   was accompanying him,  for  registration  of  a  case.  he  then proceeded to  the disputed  land along  with Sm.Krishna  and Mange Ram to take up investigation of the case. Reaching the spot he  recorded the  supplementary statement of Sm.Krishna and sent  her for  medical examination. He held inquest into the death  of Ran  singh and  Rattan singh while  S.I. Phool Singh (Pw  21), who  was accompanying him, held inquest into the death  of Satbir  Singh. Some  blood stained  earth from five different  spots were seized by him and two tempos, two camels, two  ploughs and  some pieces  of bricks  were taken possession of.  After preparing  a site plan and despatching the dead  bodies for post-mortem examination, P.W.22 went to Medical college  hospital, Rohtak  where injured Dhan Singh, Sm.Ramesh,  Balbir,   Sm.  Kamlesh   and  Sm.Rajo   had  got themselves admitted  on their  own for  treatment. There  he recorded the statement of all the injured except Dhan Singh, as according  to the doctor he was not recorded by P.W.22 on the following  day. The  accused were  arrested  on  diverse dates and  various weapons  were recovered  from them. Those weapons along  with the  blood stained  earth earlier seized were sent to Forensic Science laboratory(F.S.L) for chemical examination.  After   receipt   of   reports   of   chemical examination and  post-mortem examination and oncompletion of investigation P.W.22  submitted  charge  sheet  against  the accused.      The  appellants  pleaded  not  guilty  to  the  charges levelled against  them. Their  version, as given out by them in their statements recorded under  Section 313 of the Code of Criminal Procedure and by Attar Singh  (DW15), who  claimed to  be an eye witness, was that they  were cul;tivating  the disputed land for a number of years.  Having learnt a few days before the incident that Mange Ram  was planning  to destroy their crops, two of them personally asked  him not to do so. As, Mange Ram refused to oblige and  threatened to  cause harm  to them,  they lodged complaints against Mange Ram on 6.11.1985 and 11.11.1985 but no action  was  taken  by  the  police  thereon.  Encouraged thereby,in the  night of  November 11/12,1985, Mange Ram and his men  uprooted the  crops they  had sown  on the disputed land a  month earlier. For this mischief they again lodged a complaint against Mange Ramand his men and some of them were arrested. As regards the incident on november 17, 1985 their version was  that at  or about 6 A.M. seven of them- who are all appellants  before us_  went to  the disputed  land with camel ploughs  and a  tempo carrying  fertiliser and  seeds. While they  were ploughing  the land, seven persons, namely, Ran Singh, Rattan Singh, Dhan Singh, satbir, Sm.Kamlesh, sm. Rajo and  Sm. Ramesh  came there  carrying lathis and jails. Ran Singh, father of Sm. Krishna (PW13), trespassed into the disputed land  and shouted  that they  should be  killed and forcible possession of the land taken. Then satbir shattered the wind  screen of  their   tempo with a jaili while others caused hurt  to some  of them.  Finding no other alternative they exercised  their right  of private  defence of property and person  as a  result of  which all the seven persons who had  trespassed  into  the  land  were  injured.  The  other appellants however  denied their  presence at  the spot  and contended  that   they  had  been  falsely  implicated.  The appellant, Ishwar  put forward  a plea of a alibi contending that he  was a conductor of Haryana Roadways and at the time

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of the alleged incident he was on duty in a bus  plying from Delhi to Katra.      In support  of their  respective cases  the prosecution examined twenty two witnesses and the defence sixteen.      On  consideration   of  the  evidence,  both  oral  and documentary, the trial court held, firstly, that the accused were in  settled possession  of the  disputed land  and  not Sm.Krishana (PW  17) widow of Shri Krishan and, consequently the question  of her  delivering possession  of that land to Mange Ram  after the execution of the agreement for sale old not arise. As regards the sequence of  events on the fateful morning  the  trial  court  observed  that  the  prosecution version  that  on  seeing  the  accused  entering  into  the disputed land for ploughing, the complainant party came from their ancestral land and with folded hands requested them to withdraw  therefrom  was  patently  false.  With  the  above observation, the Court drew the following conclusion:- <SLS>      "What appears  is that in the morning of      17.11.1985.   the    complainant   party      trespassed into  this land, and when the      accused party  came to  know about, they      immediately  mounted   a   full-strength      assault on  them to throw them out. I am      aware that  this is  not the  version of      either party.  I am  also aware  of  the      dictum that court is not to evolve third      story. But  I am  also conscious that it      is one  of the bounden and sacred duties      of the  Court  to  sift  the  truth,  to      separate the  grain from  the chaff. And      after giving  a serious  thought to  the      matter on  record and  the circumstances      emerging therefrom,  I have  come to the      conclusion recorded above". <SLE>      The trial  court next  posed the question as to whether the complainant  party’s illegal and unauthorised entry into the land  entitled the  accused to  cause harm to them - and particularly to  the extent  they had  caused - and answered the same with the following words: <SLS>       "Here,  the first thing is the injuries      sustained by  theaccused. they have just      been reproduced  above in  paragraph No.      24. They are eight in number and all are      superficial. As  against this, the total      number  of   injuries   found   on   the      complainant party is sixty - five. It is      true that comparative number of injuries      is not  the sole decisive factor, but it      is one  of the  guiding factors  for the      court to  determine the  extent of right      of self-defence.  Another important fact      is  the  parts  of  body  involved.  The      injuries on  the deceased  were on vital      parts and  it has not been disputed that      they were  sufficient to cause immediate      death.  Indeed,   this  could   not   be      disputed, because the deeths occurred at      the spot  itself. Thus  it is clear that      the accused  have  committed  much  more      harm then was necessary." <SLE>      In recording  the above  finding the  trial Court  took

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into consideration  the fact  that no  explanation was forth coming either from the accused or from D.W.15, as to how the three victims  met with  their death. In negativing the plea of right  of the  private defence  of  property  and  person raised by the accused the Court lastly observed: <SLS>      "Furthermore, since the accused were not      present   in   the   fields   when   the      complainant’s party  entered  there,  as      held  by   me,  above,   there  was   no      immediate  danger   to   their   person.      Therefore, no  right of  private defence      of person  accrued to them. In any case,      there was no danger of death or grievous      hurt and,  therefore, they  had no right      to cause the harm which they have caused      to the complainant party. As regards the      right of  private defence  of  property,      the  only   offence  committed   by  the      complainant  party,   was   that   under      Section 447  of the  Indian Penal  Code,      and that  would not  give the  accused a      right of  self-defence to  the extent of      causing grevious hurt to death.      Thus the action of the accused party was      neither within the scope of  section 100      of the  Indian penal Code nor within the      purview of Section 103.      Above all,  the accused had time to have      recourse to  the  protection  of  public      authorities as well. Therefore, no right      of  private   defence  accrued   to  the      accused at  all even on the holding that      they were  in settled possession and the      complainant party had committed trespass      on the morning of 17.11.1985." <SLE>      In assailing  the judgement the learned counsel for the appellants  first  submitted  that  having  disbelieved  the prosecution case  as to  the manner  in which  the onslaught originated, the  trial Court was not justified in basing the conviction  on  a  case  made  out  by  itself.It  was  next contended  that  the  trial  Court  having  disbelieved  the evidence  of   the  four   eye-witnesses  examined   by  the prosecution as  against ten of the accused ought not to have relied  upon   the  self   same  evidence   to  convict  the appellants. It  was then contended that having regard to the findings recorded  by the trial Court that the accused party were in  settled possesion of the disputed land and that the complainant party  had criminally trespassed thereon and the uncontroverted evidence  on record  that four of the accused sustained injuries in the incident, the trial Court ought to have held,  in view  of section 96 of the Indian Penal Code, that no  offence was  committed by the accused as they acted in bonafide  exercise of  their right  of private defence of property and  person. The  learned counsel  lastly submitted that even if the entire case of the prosecution was believed the conviction  under section 302 read with 149 I.P.C. could not be  sustained and  it was  liable to  be altered  to one under Section  304 (Part  1) I.P.C  as the facts of the case were squarely covered by exception 2 to section 300 IPC.      In  repudiating  the  above  contentions,  the  learned counsel appearing  on behalf  of the respondent- state urged that the findings of the trial Court, that the accused party were in settled possession of the disputed land and that the

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complainant party  had criminally  trespassed therein before the former’s  arrival, were,  in view  of  the  evidence  on record, patently  wrong. He  however, urged  that the  other findings recorded by the trial Court were fully porne out by the evidence  on record.  As regards  the contention  of the appellants that  they were antitled to an order of acquittal in view  of acquittal  of ten  others the Counsel urged that the principle  "Falsus in  uno, Falsus  in omnibus"  was not available in  criminal trial.  Besides,  he  submitted,  the reasons which weighed with the trial court for the acquittal of the  ten others  were not available to the appellants. He lastly urged  that  considering  the  manner  in  which  the assault took place and the nature and number of injuries the accused inflicted  on the  deceased and other members of the complainant party  Exception 2  to Section 300 of the Indian Penal Code had no manner of application.      Having carefully  considered and  assessed the evidence on record,  so far  as they relate to the appellants, we are unable to accept any of the contentions raised  on their  behalf even  proceeding on the assumption that  the finding  of the  trial Court  that  the accused were  in settled  possession of the disputed land is unassailable. Prosecution  led evidence  through  Sm.Krishna (P.W.13)   Sm.Kamlesh    (P.W.14),   Balbir   (P.W.15)   and Sm.Rajo(P.W.16) that in the morning of November 17,1985,when they along  with their  other  family  members  namely,  Ran Singh, Dhan singh, Satbir Singh, Balbir singh and Sm. Ramesh were cultivating  their ancestral  land, which separated the disputed land  by a killa, accused Ved Prakash and Malak Ram came there  with two camel ploughs. A few minutes thereafter the other accused came there in three tempos and one tractor armed with  various weapons  including pharsas,  ballams and lathis and  asked Ved  Prakash and  Malak Ram as to why they had not  started ploughing  the disputed land. At that stage all the  members  of  the  complainant  party  went  to  the disputed land and requested the accused with folded hands to withdraw from  that land  as they had purchased the same and also ploughed  it. According  to the  above four  witnesses. Immediately thereupon on the instigation of Ram Karan (since acquitted) Bhup  and Ishwar (two of the appellants) put into motion the  two tempos,  of which  they were the drivers and dashed against some of them felling them down. Then Bhup and Ishwar  stopped  their  tempos.  The  accused  persons  then started beating  the members  of the  complainant party with the various  weapons they were carrying as a result of which Ram Singh,  Rattan Singh  and Satbir Singh fell down dead on the spot,  Dhan Singh,  Sm. Rajo  and Sm.  Kamlesh sustained grievous injuries  including fractures  and the  other three sustained minor  injuries. Then  the accused persons left in one tempo and a tractor.      The accused  in their  turn led evidence through D.W.15 Attar Singh to prove that in the morning when he had gone to plough his  land, adjacent  to the  disputed land,  he found Nafe, Phool  Chand, Bhup,  Nathu, Mahinder, Surte and Ramesh (all appellants  before us)  ploughing  the  disputed  land. Sometimes thereafter  he saw  Ran Singh,  Rattan singh, Dhan Singh, Satbir Singh, Sm. Kamlesh, daughter of Dhan singh and Sm. Ramesh  and Sm. Rajo, two daughters-in-law of Dhan Singh (seven members  of  the  complainant  party)  coming  there. According to him while the male members were carrying jailis the ladies  were carrying  lathis. He  next stated  that Ran Singh raised  lalkara and  then starting  beating  Mahinder, Ramesh and  Bhup causing injuries on them. Besides, nafe was also beaten  up but  the witness could not say who beat him. Then Rajinder  and others  picked up  jailis and  lathis  in

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their defence  causing injuries to the above mentioned seven members of the complainant party.      As noticed earlier the trial Court disbelieved both the versions relating  to the  genesis of the assault and gave a version of its own which has already been reproduced. We are in complete  agreement with  the  learned  counsel  for  the appellants that  the trial Court was not justified in making out a  case of  its own,  disbelieving  and  discarding  the respective cases  made out  by the parties; but then, having given our  anxious consideration  to the evidence adduced by the parties  regarding the  origin of  the incident  of that fateful day,  we are  of the  opinion that  the trial  Court ought to  have accepted  the prosecution  version. The trial Court held  that keeping  in view  the incidents  that  took place earlier  on November  12 and November 14, 1985 and the fact that  a large number of miscreants came in three tempos and one  tractor armed  with deadly  weapons for a murderous assault it would be an insult to common sense to believe the prosecution story  that the  nine members of the complainant party went  there with  folded hands  to  persuade  them  to withdraw. In  the context  of the  evidence on record we are constrained to  say that  the above remark made by the trial Court  is  not  only  uncalled  for  and  unsustainable  but unfortunate. Admittedly  only a  few days back - on November 12, 1985 to be precise - the appellant Rajinder had lodged a complaint against  some members  of  the  complainant  party including  Mange   Ram  for  committing  trespass  into  and damaging crops  of  the  disputed  land  and  in  connection therewith some  of them were arrested. Again on November 14, 1985 Sm  Rajo (P.W.16)  had lodged an F.I.R. against some of the accused  persons alleging  commision of  offences  under Section 452 and 323 IPC. The motive for the assault as given therein was  that the  complainant party  had  ploughed  the disputed land.  In the  context of  these facts,  which  the trial Court  also  noticed,  it  was  not  likely  that  the complainant party  would venture  to forcibly  cultivate the disputed  land   immediately  thereafter  and  face  another prosecution. Judged  in that  light their  assertion that at the material time they were cultivating their ancestral land does not seem to be improbable more so, when the accused did not even  suggest, much  less prove,  that they  had no such land near the disputed land.      Besides, the  evidence of  P.Ws. 13,14,15  and 16 as to the manner in which the trouble started and the assault took place is  not only  cogent and  consistent but  also  stands corroporated by  other materials on the record, which may be summarised as under:- i) The  accused admitted  the presence  of seven  out of the nine members  of the complanant party (except P.Ws. 13 & 15) at the  time of  the incident  and of their having sustained injuries. ii) Dr.  S.K. Bhutani  (P.W.2) examined P.W.13 on 17.11.1985 at 1.45  p.m. and found three injuries on her person; one of which, he  opined, could  be caused  by a pointed weapon and other two by blunt weapon. iii) On  the same  afternoon  (17.11.1985)  Dr.  J.S.  Lamba (P.W.4)  examined   Dhan  Singh,  Sm.  Ramesh,  Sm.  Kamlesh (P.W.14) Sm.  Rajo (P.W.16)  and Balbir  (P.W.15) and  found lacerated injuries  on their  persons. On  X’ray examination Dhan Singh was found to have sustained compound fractures of both bones  of  right  forearm  and  of  right  humerus  and fracture of  left radius;  Sm. Kamlesh sustained fracture of shaft of right femur and Sm. Rajo sustained fracture of left parietal bone.  According to  Dr. Lamba injury No. 8 of Dhan Singh -  deformity of  right upper  limb with  angulation  -

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could be  caused by  being hit  by a tempo and also by being run over by it. iv)  Dr.  K.K.  Chawla  (P.W.1)  who  held  the  post-mortem examinations on  the  three  deceased  on  18.11.1985  found fifteen injuries  on Satbir,  fourteen of which were incised and/or penetrating  woulds on  the upper  part of  the body, that is  chest, neck  and head;  twenty five injuries on Ran Singh of which eight were abrasions, two lacerations and the rest either  incised or  penetrating  wounds  and  seventeen injuries  on   Rattan  Singh,   most  of  them  incised  and penetrating wounds.  In the  opinion of  Dr. K.K. Chawla the incised  wounds  could  be  caused  by  pharsa  and  incised penetrating wounds by ballams. He further opined that injury No.17 on  the person  of Ran  Singh could  be caused if some projective portion  of the tempo hit the victim on the thigh and injury  No. 16 on the person of Ran Singh and injury No. 14 on  the person of Rattan Singh could be caused if a tempo ran over the victims. v) P.W.22,  the  Investigating  Officer  testified  that  on reaching the  spot he found two tempos and two camel ploughs and  that   later  on   Rajinder  (the  appellant)  produced documents of those two tempos. vi) The  evidence of  P.W.22 also  proves that P.W.13 lodged her complaint  with him  with utmost dispatch, in as much as it was  made before  him at 12.15 P.M; and that the same was forwarded to  and received  by local  Magistrate on the self same day at 3.45 p.m. and vii) The  F.I.R. contains the sub stratum of the prosecution case as detailed by P.W.13 at the trial.      Pitted  against   the  evidence   of  the   prosecution witnesses as  discussed above is the evidence of Attar Singh (D.W.15) who  gave the  defence version of the incident, and Dr. Ravi  Kanta (D.W.1)  who examined  the appellants  nafe, Ramesh, Mahinder  and Bhup Singh and found injuries on their persons. Though  14 other  witnesses were  also examined  on behalf of  the  defence  their  evidence,  however,  is  not relevant for  our persent purposes. On a careful analysis of the evidence  of D.W.15,  which we have detailed earlier, in the light of other evidence on record we are unable to place any reliance  thereupon. According to D.W.15 when he saw the accused working  in the  disputed land  there was  only  one tempo standing  by their side, but then, as noticed earlier, the evidence  of P.W.22  clearly proves  that there were two tempos  at  the  spot  and  that  Rajinder  (the  appellant) produced documents of those two tempos. Such presence of two tempos not only discredits D.W.15 but also makes the version of the  appellants that  they  came  with  one  tempo  which carried fertilisers  untrustworthy. D.W.15  next stated that the male  members of  the complainant  party  were  carrying jailis and  the ladies  lathis and that Ran Singh had caused hurt to  Mahinder, Ramesh  and Bhup.  If this  part  of  his evidence is  to be  believed Ran  Singh must  have assaulted them with  jaili, which  admittedly is  a sharp  weapon, but Dr.Ravi Kanta  (D.W.1) opined that all the injuries he found on their  persons were  caused by blunt weapons. Then again, according to D.W.15, after the above named four persons were injured the accused persons present there took up the jailis and lathis  and beat  the seven  members of  the complainant party present  there to  defend themselves,  but as  noticed earlier, Dr.  Chawla (P.W.1)  testified  that  most  of  the injuries found  on the  persons of  the  deceased  could  be caused by  ballams, pharsas  and spears.  While being cross- examined he  asserted that some of the injuries could not be caused by  jaili or  by lathi  and they  could be  caused on being run  over by  tempo. The other reason which prompts us

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to discard  the evidence  of D.W.15  is that he did not give any explanation whatsoever as to how Ran Singh, Rattan Singh and Satbir  Singh met  with their death at the spot. Indeed, according to him nobody had died on the field even though he claimed to  have left  the field  after the  fight was over. According to  this witness  only Ran  Singh was lying on the ground while  others  were  standing.  We  are  in  complete agreement with  the trial  Court that  having regard  to the nature and  number of injuries sustained by Rattan Singh and Satbir it was absurd to claim that he found them standing.      Coming now  to the  evidence of  D.W.1, we find that he examined the  appellants Nafe  Singh and Ramesh in the night of 17.11.1985  at 11.30  p.m. He  found two lacerated wounds and one  diffused swelling  on the  person of Nafe Singh and two lacerated  wounds on  the person of Ramesh. His evidence further discloses  that on  21.11.1985 he examined appellant Rajinder Singh  and Bhup Singh and found one liner lacerated wound on  the person of the former and one linear injury and a scab  on the  person of  Bhup Singh. He testified that the injuries seen by him on the above two persons were four days old. In  cross- examination D.W.1 admitted that the injuries found by  him on  the persons  of the  above four  could  be sustained by  fall. He further opined that injuries found by him  on   Mahinder  and   Bhup  Singh  could  be  caused  in agricultural pursuits like striking with plough.      From the  above  discussion  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  Mange Ram  and his men to disturb such cultivation and  meet any eventuality. As they were about to cultivate  the   land  the   complainant  party   which  was cultivating their  ancestral land  nearby,  went  there  and entreated them  to vacate  the land claiming to be its owner and in  possession. Immediately  thereupon the accused party launched  a   murderous  attack  on  the  complainant  party resulting in  death of three, grievous injuries to three and simple injuries  to other  three. In  course of  that attack four members  of the accused party received some injuries at the hands of one or other of the accused party received some injuries at  the hands  of one  or other  of the complainant party (as testified by P.W.14).      Having drawn  the  above  inferences  we  have  now  to ascertain whether  the unauthorised entry of the complainant party in  the disputed  land, which  according to  the trial Court was in settled possession of the accused party legally entitled the  latter to  exercise  their  right  of  private defence and,  if  so,  to  what  extent.  The  fascicule  of Sections 96  to 106 I.P.C. 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. Section 96 provides that nothing is an offence which is done in the  exercise of the right of private defence and Section 97 which defines the area of such exercise reads as under: <SLS>      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      moveable or immoveable, of himself or of      any other  other person. against any act      which is  an offence  falling under  the

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    definition of  theft. robbery,  mischief      or criminal  trespass, or  which  is  an      attempt  to   commit   theft,   robbery,      mischief or criminal trespass.                          (emphasis supplied) <SLE>      On a  plain reading of the above section it is patently clear that  the right  of private  defence, be  it to defend person or  property, is available against an offence. To put it conversely,  there is no right of private defence against any act which is not an offence. In the facts of the instant case the  accused party  was entitled, in view of Section 97 and, of  course, subject to the limitation of Section 99, to exercise their  right of private defence of property only if the unauthorised  entry of  the  complainant  party  in  the disputed land  amounted to  "criminal trespass",  as defined under Section 441 I.P.C. The said Section reads as follows: <SLS>      "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".      It  is   evident  from   the   above   provision   that unauthorised entry  into or  upon property in the possession of another  or uniawfully remaining there after lawful entry can answer  the definition of criminal trespass if, and only if, such  entry or  unlawful remaining is with the intent to commit an  offence or  to intimidate  insult  or  annoy  the person in  possesion 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  anintention  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 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 only gave  the complainant party the right to strike back in self defence  but disentitled  the accused to even claim the right of private defence of person.      We hasten  to add,  that even  if we had found that the complainant party  had criminally  tresoassed 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   I.P.C.,  for  Section  104  I.P.C.  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  I.P.C. has  no  manner  of application here  as the  attack by  the accused  party  was premeditated and  with an  intention of doing more harm than

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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   purselves  to  set  aside  the convictions for the minor offences only: out then that would have been, needless to say, a poor solace to the appellants.      As regards  the contention  raised  on  behalf  of  the appellants that having acouitted some of the accused persons disbelieving the  evidence of  the prosecution witnesses the trial Court  ought not  to have  relied  upon  the  same  to convict them,  we can  only say that the learned counsel for the State  was fully  justified in contending that the maxim ’Falsus in  uno,  Falsus  in  omnibus’  does  not  apply  to criminal trials and it is the duty of the Court to disengage the truth from falsehood instead of taking an easy course of rejecting the  evidence in its entirety solely on the ground that the  same is  not acceptable  in respect of some of the accused. On  perusal of  the impugned judgtment we find that the trial Court took great pains to consider and discuss the case of  the individual accused including the pleas of alide raised on  behalf of  appellant ishwar  and others  and on a threadbare discussion  thereof found  that the participation of the  appellants before  us in  the incident  stood proved beyond all  reasonable doubt,  while  acquitting  others  on grounds which  were available to them only. Having carefully considered the evidence against each of the appellants we do not find  any reason  to take  a different view from the one taken by  the trial  Court so  far  as  the  appellants  are concerned except  appellant Jai  Narain as  we feel that the trial Court  having acquitted those whose names old not find place in  the F.I.R.  ought to  have recorded  an  order  of acquittal in  his favour  also  as  he  stood  on  the  same footing.      In the  result  we  dismiss  this  appeal  of  all  the appellants except  appellant Jai  Narain,  whose  appeal  we allow. Since all the appellants are on bail, Jai Narain will stand discharged  from his  bail bond  while others will now surrender to  their bail  bonds to  serve out  the sentences imposed upon them by the trial Court.