REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 581 OF 2007

RAM PAT & ORS.     … APPELLANTS

Versus

STATE OF HARYANA            … RESPONDENT

J U D G M E N T

S.B. Sinha, J.

1 Appellants,  four  in  number,  are  before  us  aggrieved  by  and  

dissatisfied  with  the  judgment  and  order  dated  14.2.2007  passed  by  a  

Division Bench of the High Court of Punjab & Haryana at Chandigarh in  

Criminal  Appeal  No.298-DBA of  1997,  in  terms  whereof  a  judgment  of  

acquittal recorded by learned Sessions Judge, Narnaul in case No.27 of 1993  

was set aside.

2. We  may,  at  the  outset,  notice  that  eight  persons  were  arrayed  as  

accused in the aforementioned case.  The High Court, however, did not grant  

special leave in respect of accused Nos.6 to 8.  Accused No.1 died during the  

pendency of the trial.  Accused Nos.2 to 5 only are, therefore, before us.

3. The prosecution case is as under:

Daya Ram and Ram Pat, along with Rajinder, Surinder and Mukesh  

alias Manoj had purchased 1/36th share of the right of the owners in the land  

measuring  264 kanals,  12  marlas  comprised of  Khewat  No.10,  Khatauni  

No.69 mustkil and Killa No.24/27 and 1/48th share of 37 kanals 8 marlas of  

land by reason of a deed of sale dated 7.5.1993.  They are said to have  

purchased 1/18th undivided share in the land measuring 264 kanals 12 marlas  

and 1/24th share of land measuring 2 kanals 5 marlas totaling 14 kanals 14  

marlas of land by reason of a deed of sale dated 24.5.1993.  Allegedly, they  

sowed some Bajra crop therein.

Occurrence  is  said  to  have  taken  place  on  the  land  comprised  of  

Khasra No.24/8/1 situated at village Nawadi.   Harda Ram (the deceased)  

claimed himself to be the co-owner and in possession of the said land for a  

long time.   He claimed right  thereon on the basis  of  khasra girdawaries.  

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Appellants, as noticed hereinbefore, claimed to be in possession thereover in  

terms  of  the  aforementioned  deed of  sale  dated  7.5.1993 and 24.5.1993.  

According to the prosecution, however, the deceased was in possession of  

the land and after the execution of the said deeds of sale, it was the accused  

persons who had tried to enter into the suit land and plough it.

The  prosecution  case,  as  disclosed  in  the  FIR  lodged  by  P.W.8  -  

Rajbir, was that he was ploughing his agricultural land with his tractor on or  

about 14.7.1993.  His father Harda Ram (“the deceased” for short) was also  

standing in the field.  Sheo Ram, Daya Ram, Bajrang and Raja Ram armed  

with lathies and Ram Pat and Balwant armed with Jellies came at the spot.  

The  entire  occurrence  as  would  appear  from  the  depositions  of  the  

prosecution witnesses before the court lasted for hardly two to two and half  

minutes.   

Ram Pat is said to have given a jelli blow on the head of the deceased;  

Sheo Ram inflicted a lathi blow above his eyes; Balwant Singh gave jelli  

blow on the back of his neck (Gudhi); Daya Ram inflicted a lathi blow on  

his back and Bajrang also inflicted a lathi blow on his person.   

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In the FIR, Rajbir further stated that in the meanwhile his uncle Lal  

Singh, his aunt Dhankauri wife of Lal Singh and his sister Mamli, who were  

fetching water from a water tap situated nearby, had arrived at the scene of  

occurrence.  Basanti  and  Santosh  armed  with  lathis  came  there.  Whereas  

Basanti dealt a lathi blow on the head of Mamli, Santosh gave a lathi blow  

on  the  person  of  Dhankauri.  P.W.  8  further  stated  that  Raja  Ram  also  

inflicted a lathi blow on the person of Lal Singh.  The occurrence is said to  

have been witnessed by Ami Lal son of Sohan and Ram Avtar son of Bhuru  

Ram, who intervened and rescued them from the clutches of the accused and  

thereafter  the  accused persons  left  the  spot  with  their  weapons.   P.W.  8  

further alleged that after getting the injured admitted in the Primary Health  

Centre, Ateli, he proceeded towards the Police Station for lodging the FIR.  

His statement was recorded at 1.50 p.m.

The deceased was, however, taken to Civil Hospital, Narnaul.  Head  

Constable Kailash Chand (P.W. 13) came to learn thereabout on reaching  

Primary  Health  Centre,  Ateli.   He  recorded  the  statement  of  Dhankauri,  

Mamli and Lal Singh.  He thereafter came to Civil Hospital, Narnaul with a  

view to examine the deceased but it was found that he was not in a position  

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to make a statement.  The doctor had also reported that the injuries suffered  

by  the  deceased  were  dangerous  to  life  and  as  such  the  offence  was  

converted to one under Section 307 IPC.   

4. Before the learned Sessions Judge, 14 witnesses were examined on  

behalf  of  the  prosecution.  Some of  the  witnesses  although named in  the  

charge-sheet were not examined by the public prosecutor on the premise that  

it was not necessary to examine them.  They are Dr. Vijay Singh Yadav, Dr.  

Vinay Chaudhary, Dr. O.P. Saroha, Sheo Ram, Babu Lal, Raghbir, Mamli,  

Dhankauri  and  Ram  Avtar.   Lal  Singh  and  Suraj  Bhan  were  also  not  

examined on the ground of having been won over by the accused.

5. The prosecution in support of its case mainly relied upon the evidence  

of Rajbir (P.W.8), Lal Singh (P.W.12). We would refer to their evidence a  

little later.  

6. We  may,  however,  notice  that  in  the  aforementioned  incidence,  

Mamli, Dhankauri, wife of Lal Singh, as also Lal Singh were injured. They  

were  examined  by  Dr.  S.C.  Goel  (P.W.5).   Mamli  was  examined  

immediately after the said occurrence and two injuries were found on her  

person, namely:

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“1. There was a lacerated fresh bleeding would  present on parietal prominence, size 5.5 cms  x bone deep.  X-ray was advised.  There was  swelling of 2 cms diameter around it.

2. On the back of the chest, there was a reddish  contusion  of  11  cms  x  1/1/2  cms.  Tenderness  was  present.   X-ray  was  advised.”

Dhankauri, wife of Lal Singh was found to have suffered four injuries.  

He was examined at about 1.40 p.m.  The injuries suffered by her are as  

under:

“1. Two cms. long lacerated wound on the left  fore-arm  of  the  size,  in  the  bangles  area,  Fresh bleeding was present.

2. On the top of the scalp a lacerated wound 4  cms  x  1  cm,  transverse,  skin  deep  with  swelling of 1 cm in diameter around it was  present.  It was freshly bleeding and it was  advised x-ray.

3. There was a skin colour swelling on the left  side of the fore-head size 4 x 3 cms.  Tender  was hard and there was 1 cm long reddish  abrasion  on  it  was  present.   X-ray  was  advised.  

4. The left shoulder blade was swollen, tender  little reddish on the back on the upper part  of the chest.  The movement of the shoulder  was painful.  Advised X-ray.

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Lal Singh was examined at about 1.55 p.m. He is said to have suffered  

the following injuries:

“1. Below right parietal prominence, there was a  lacerated freshly bleeding wound of 4 x ½  cm  bone  deep  with  swelling  of  1  cm.  diameter around it.  X-ray was advised.  

2. In front of left parietal prominence, freshly  bleeding lacerated wound of 4 x ½ cm was  present.  It was bone deep with the swelling  of 1 // 1/2 of diameter around it.  X-ray was  advised.  

3. There was a reddish abrasion of 2 cms on  the  top  of  right  shoulder.   Tender.  Movement of shoulder was painful.  It was  kept under observation.  

4. Two penetrated wounds of ½ cm x ½ cm on  the right leg, inner side.  ½ cms apart from  each other.  It was 1 //1/2 cm. deep.  Freshly  bleeding.   It  was  kept  under  observation.  Margins were lacerated.

The doctor opined that the injuries suffered by Mamli, Dhankauri and  

Lal  Singh  were  inflicted  by  a  blunt  weapon  and  were  caused  within  a  

duration of 24 hours of examination.

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Two of  the  accused,  namely,  Raja  Ram and Sheo Ram were  also  

found to have suffered injuries.  They were also examined by Dr. S.C. Goel  

(P.W.5).   

The injuries suffered by Sheo Ram are as under:

“1. A lacerated wound of 3 cms present on top  and middle of fore-head, upper end on the  scalp  ¼ cm wide.   It  was  bone  deep  and  freshly bleeding was present on cleaning and  swelling of 1 cm diameter around it.  X-ray  was advised.  

2. Reddish  abrasion  of  15  x  1  cms  on  right  fore-arm,  outside,  down  to  wrist.   Tender  have  black  loose  clot.   Fresh  bleeding  on  cleaning  was  present.   Movement  was  painful.  X-ray was advised.  

3. On top and back of right shoulder, multiple  reddish  contusions  were  present,  involved  shoulder  blade  and  back  of  chest.  Painful  tender and the movement was restricted.  X- ray was advised.

4. Reddish abrasion of 2 x 1 cms. on the back  of  left  shoulder.   Painful  and  movements  were within limits.

5. Lacerated  freshly  bleeding  wound  was  present on the back of left fore-arm.  7 cms.  below the elbow joint/ Size 2//1/2 x ½ cm  skin deep.

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6. On all  over  the  back chest  of  the left  and  right, multiple cylindrical reddish contusions  were present.  X-ray was advised.

7. The patient had complaint of pain all  over  the body.

The injuries suffered by Raja Ram are as under:

“1. Reddish contusion of 5 x 1 cms on the back  of  right  fore-arm,  middle,  tender,  movements were normal.   

2. Reddish contusion of 7 x 1 cms on the top of  left  shoulder,  tender,  movements  were  painful.

3. On  the  top  of  right  shoulder  and  deltoid  muscle,  reddish  contusion  11  x  2  cms.  tender, movements were painful. X-ray was  advised.  

4. On the  right  shoulder  blade,  three  reddish  irregular contusions in an area of 8 x 8 cms  was present.

5. On the back of  right  index finger,  reddish  abrasion of 1 x ½ cms was present.  Fresh  bleeding  was  present  on  cleaning.   It  was  painful.

6. The left wrist joint on the back was swollen.  Skin colour and it was painful.  Defuse was  more  on  the  side  of  thumb.   Movements  were painful.

7. On the left  parietal  prominence,  there  was  reverse L shape wound of 3 x 1 cms and ½  

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cm.  It was full of burnt cloth.  On cleaning,  fresh bleeding occurred.  Bone deep, tender  and swelling of 1 diameter around it.  X-ray  was advised.  

It  is,  however, of some significance to notice that according to Dr.  

Goel, injuries Nos.2 to 6 on the person of Sheo Ram and injuries Nos. 1 to 6  

on the person of Raja Ram could be caused by a fall on a hard surface.

It may further be placed on record that Sheo Ram and Raja Ram were  

not admitted in the Hospital.  There was no X-ray facility in the Primary  

Health Centre, Ateli.  

It,  however,  stands  admitted  that  X-ray of  the  aforementioned  two  

accused were not taken subsequently.  No complaint was made; no further  

medical complication was found and no further treatment was found to be  

necessary.   

Harda Ram, the deceased, was examined by Dr. A.K. Chhakkar (P.W.  

10)  at  about  1.40 p.m.  at  Civil  Hospital,  Narnaul.   He is  found to  have  

suffered the following injuries.

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“1. A reddish contusion 6 cms. x 6 cms. on left  side parietal temporal region.  Swelling was  present.  It was kept under observation and  advised X-ray.

2. A reddish contusion 3 x 3 cms in size on the  right  side  of  temporal  parietal  region.  Swelling was present.  X-ray was advised.

3. A reddish contusion 3 x 1 cm. on the lateral  aspect of left wrist. Swelling was present.  

4. Bleeding from teeth was present.  Referred  Dental surgeon.”  

7. Harda Ram died on the same day.  A post-mortem examination was  

conducted  by a  panel  of  doctors  at  10.30 a.m.  on 15.7.1993.  The report  

shows the presence of following ante-mortem injuries on his person:

“1. There was swelling of 10 cms. x 3 cms on  the left side of tempo parietal region.  There  was scalp haemotoma  size 11 cms x 8 cms  on the left side front parieto temporal region,  reddish in colour.  On dissection, there was  fracture  of  left  frontal  bone  and  parietal  bone.  Extra dural haemotoma and sub-dural  haemotoma, thickness 1 cm was present on  the parieto temporal region.

2. There was a reddish black contusion around  right eye.  On dissection, there was fracture  of right side frontal bone.  

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3. Bleeding  (haemotoma)  was  present  in  the  socket  of  right  side,  upper  medial  and  incisor  teeth.   Surrounding  teeth  were  unhealthy,  Dental  carries  was  present.  There were in all 6 teeth in upper jaw and 7  teeth  in the  lower jaw.   No corresponding  injury over lip was present.

4. Reddish abraded contusion 3 x 1 cm. on the  posterior surface of the left arm middle 1/3rd  was present.”

8. The learned trial judge recorded a judgment of acquittal as noticed by  

the High Court on the following grounds:

“1. The accused having purchased the land and  received the possession of the land from the  vendors,  were  in  possession  of  the  same  since  16  days  prior  to  the  occurrence,  whereas the complainant party had no right  to destroy the Bajra crop as sown by them  on  28.6.1993.   Consequently,  when  asked  complainant  party  inflicted  injuries  upon  them, therefore, they in exercise of right of  private defence of the person and property  has been fully protected under the law and  inflicted injuries to the complainant party.  

2. The presence of Rajbir (PW8) at the time of  occurrence is doubtful.

3. The  accused  party  also  suffered  injuries  which  were  not  explained  by  the  prosecution,  therefore,  they  would  be  

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deemed to  have  suppressed  the  genesis  of  occurrence.  

4. The FIR is anti dated and anti timed”

9. The  High  Court,  however,  by  reason  of  the  impugned  judgment  

reversed the said judgment of the trial court, holding:

“From the consistent and trustworthy testimony of  Rajbir (PW8), Amar Singh (PW9) and Lal Singh  (PW12)  it  is  amply  established  that  all  the  five  accused,  armed  with  jallies  and  lathies,  while  entering  into  the  land  of  the  complainant  challenged  Harda  Ram (deceased)  not  to  plough  the land and they in furtherance of their common  intention  inflicted numerous injuries  to him as a  result  of  which  he  died.   They  not  only  caused  injuries  to  the  deceased  but  also  to  other  three  persons  Mamli,  Dhankauri  and  Lal  Singh.   The  accused party has also not  denied having caused  injuries  to  them  but  they  have  taken  a  specific  defence that the injuries were caused by Sheo Ram  and Raja Ram only that too in their self-defence.  But the factum of with regard to the presence of  the present respondents has been duly taken note  of by us and the plea of right of private defence  has been turned down in the preceding paras.  It  would not be inappropriate to observe that the trial  Court while acquitting the accused on the basis of  some inadmissible evidence and also overlooking  the facts as discussed in the preceding paras, fell in  error and formed a view which was not practically  

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reasonable  in  the  facts  and circumstances  of  the  case.  Consequently, interference in the impugned  judgment has become inevitable.  

As  an  upshot  of  the  above  discussions,  necessary conclusion which can be drawn is that  the  prosecution  has  been  successful  in  leading  sufficient  evidence  against  the  accused  to  prove  the fact that they in furtherance of their common  object inflicted injuries to Harda Ram which were  found  sufficient  to  cause  death  in  the  ordinary  course of nature.  Since Dr. Dinesh Poddar (PW11)  opined  that  cause  of  death  was  coma,  due  to  compression  of  brain  as  a  result  of  head  injury  which is attributed to Ram Pat accused, therefore,  he  is  convicted  under  Section  302  IPC  and  the  remaining accused namely Sheo Ram, Daya Ram,  Balwant and Bajrang are convicted under Section  302/149  IPC.   Consequently,  they  are  also  convicted under Sections 447/148/506 IPC.  

Now  coming  to  the  sentence,  since  the  minimum sentence  is  being  awarded  against  the  accused, therefore, we do not feel the necessity to  hear them on quantum of sentence.  Consequently,  accused  –  respondent  Ram  Pat  is  sentenced  to  undergo imprisonment for life and to pay fine of  Rs.500/-. In default of payment of fine to further  undergo  rigorous  imprisonment  for  one  month  under  Section  302 IPC.   The  remaining accused  are also awarded the same sentence under Sections  302/149 IPC, as has been awarded to the accused  Ram Pat under Section 302 IPC.

Since  the  accused  have  already  been  sentenced for graver offence, therefore, we do not  

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feel necessity to sentence them under Sections 148,  447 and 506 IPC separately.”

Appellants are, thus, before us.

10. Mr. Sushil Kumar, learned Senior Counsel appearing on behalf of the  

appellants would submit

i. Learned  trial  judge  having  assigned  sufficient  and  cogent  

reasons in support of his findings and its view being a plausible  

one, the High Court should not have interfered therewith.  

ii. “Settled  possession”  on the  part  of  the  accused having  been  

found as of fact by the learned trial judge inter alia on the basis  

of the admission made by the first informant himself in Exhibits  

DN  &  DQ,  the  High  Court  was  not  correct  in  interfering  

therewith.

iii. Exercise of right of private defence on the part of the injured  

accused persons, namely, Sheo Ram and Raja Ram having been  

accepted and the High Court itself having not granted special  

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leave to appeal so far as they are concerned, it must be held to  

have committed a manifest error insofar it failed to extend the  

said benefit to the appellants also.

iv. In any event, the prosecution having not explained the injuries  

sustained by two of the accused and the FIR having been anti-

dated and anti-timed, no interference with the judgment of the  

trial court was warranted at the hands of the High Court.  

11. Mr. T.V. George, learned counsel appearing on behalf of the State, on  

the other hand, would support the impugned judgment.  

12. The accused admittedly did not purchase any specific portion of the  

property.  They purchased undivided share.  By reason thereof, in law, they  

did not acquire any right to obtain possession of the lands.  Harda Ram and  

his family being the co-sharers did not give any consent for hading over their  

possession  in  their  favour.   In  law,  therefore,  the  accused  persons  being  

purchasers of an undivided share merely acquired a right to sue for partition.

In  M.V.S.  Manikayala  Rao  vs.  M.  Narasimhaswami  & Ors.  [(AIR  

1966 SC 470], this Court held:

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“Now,  it  is  well  settled  that  the  purchaser  of  a  coparcener’s  undivided  interest  in  joint  family  property is  not entitled to possession of what he  has purchased.  His only right is to sue for partition  of the property and ask for allotment to him of that  which on partition might  be found to  fall  to the  share  of  the  coparcener  whose  share  he  had  purchased.”

{See also Hardeo Rai vs. Sakuntala Devi & Ors. [(2008) 7 SCC 46]}  

Recently  in  Peethani  Suryanarayana  &  Anr.  vs.  Repaka  Venkata  

Ramana Kishore & Ors. [2009 (2) SCALE 461], this Court held:

“It is also not in dispute that the appellants, being  purchasers  of  undivided  share  in  a  joint  family  property, are not entitled to possession of the land  that they have purchased. They have in law merely  acquired a right to sue for partition”

The two deeds of sale were executed in their favour on 7.5.1993 and  

24.5.1993.  The learned trial  judge,  in our opinion, was wholly incorrect  

keeping in view the aforementioned legal position that having regard to the  

stipulations contained in the said deeds of sale, possession of the vended  

properties had been handed over;  the vendees would be deemed to be in  

possession.  That is not the law.  Handing over of possession is a physical  

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act.  Nothing has been brought on record to establish that in fact physical  

possession had been handed over by all the co-sharers.   

12. It  is  true  that  some overt  acts  were  committed  by  the  accused  on  

28.6.1993.  It now, however, stands admitted that questioning the validity or  

otherwise of the aforementioned deeds of sale dated 7.5.1993 and 24.5.1993,  

father of the deceased Harda Ram filed a suit and an ad interim order of  

injunction  was  passed  in  their  favour.   Exhibit  DN  whereupon  strong  

reliance has been placed is a complaint before the court of City Magistrate,  

Narnaul  being  under  Sections  107  and  151  of  the  Code  of  Criminal  

Procedure (for short, “the Code”).  The translated version thereof reads as  

under:

“It is submitted that the under mentioned persons  cultivated our field after trespassing: Sheo Ram s/o  Sh. Ganpat, Daya Ram s/o Sheo Ram, Ram Pat s/o  Sheo Ram, Surendra s/o Tarachand, Ami Lal s/o  Ganpat, Raja Ram s/o Ami Lal, Jagdish s/o Ami  Lal, Narendra s/o Raja Ram, Bajrang s/o Jaisukh,  Lala  Ram s/o Ganpat,  Balwant  s/o Kabul  Singh,  Omvir  s/o  Kabul  Singh,  Rajender  s/o  Ramswaroop, al r/o Gandala and relatives of Sheo  Ram.  These persons cultivated the land before we  reach there in which our date was fixed on 28.6.93  before the City Magistrate,  Narnaul.  The tractor  was belonged to Rajender r/o Gandala.  The said  

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land/field is situated near the school and (DHANI)  at Nawabi.  When we reached at the village then  Amar  Singh  s/o  Sohan  Lal  told  us  that  those  persons  were  holding  Axes  and  sticks  (Lathis).  After hearing it we reached at Ateli.  Neither they  have any Registry nor any mutation in their names.  And from whom registry has been done have been  injuncted.

We have revenue entries (GIRDAWARI) in  our name for last 32 years.    

xxx xxx xxx

These  persons  are  going  against  the  law.  They have not their names in the Revenue papers  (JAMANBANDI).   The  action  be  taken  against  them and they should cultivate the land only after  partition.  Whether the residents of Gandala will be  able  to  give  the  possession  forcibly  to  them?  Which is not in the possession of the person who  has to give the possession.  And one appeal dated  15.2.93  is  pending  against  them in  the  court  of  Narnaul  and  a  stay  order  dated  14.6.93  is  also  against them.  They are working against the law.  They  must  be  restricted.  Neither  they  have  any  order of PATWARI and TEHSILDAR nor they are  owner  of  any  number.   They  have  1/12  share.  They should get it after partition and cultivate that  portion which they are to be entitled for.  There is  not any mutation in their names.  

These  persons  should  be  restricted.   They  are going against the law.”

19

P.W. 8 was not confronted with the purported admission by him.  He  

could have explained the same.  In any event, admission on his part was not  

such which was admissible against him proprio vigore.

Mr. Sushil Kumar has drawn our attention to a decision of this Court  

in  Bharat Singh & Anr.  vs.  Bhagirathi [(1966) 1 SCR 606], wherein this  

Court held:

“Admissions have to be clear if they are to be used  against  the  person making  them. Admissions  are  substantive evidence by themselves, in view of ss.  17 and 21 of the Indian Evidence Act, though they  are not conclusive proof of the matters admitted.  We are of opinion that the admissions duly proved  are admissible evidence irrespective of whether the  party making them appeared in the witness box or  not  and  whether  that  party  when  appearing  as  witness  was  confronted  with  those  statements  in  case  it  made  a  statement  contrary  to  those  admissions.”

That was, however, a decision which was rendered in a civil matter.  

Admission made by one of the parties thereto was clear and unequivocal.   

We may, however, notice that in certain situations even an admission  

can be explained.

20

In  a  case  of  this  nature,  therefore,  the  statement  made  in  the  

aforementioned documents or before the Deputy Superintendent of Police  

cannot be said to be an admission that they had been totally dispossessed  

which would be admissible against P.W.8 proprio vigore.

Another purported admission made by P.W. 8 was said to have been  

made  in  Exhibit  DQ.  The  said  document  disclosed  that  the  Subordinate  

Judge  First  Class,  Narnaul  had  confirmed  the  order  of  injunction  dated  

14.6.1993 by an order dated 9.12.1994 whereagainst an appeal was preferred  

by  Daya  Ram  and  Ram  Pat  in  the  Court  of  Additional  District  Judge,  

Narnaul.  The parties admittedly had also been litigating before the Revenue  

Authorities in regard to their respective claims in the matter of getting their  

respective names mutated in the revenue records.

The entries in the revenue records stood in the name of the deceased  

and his family.   

13. Mr.  Sushil  Kumar  made  two  inconsistent  submissions  before  us;  

firstly, relying on or on the basis of the decision of the Privy Council in  

(Thakur) Nirman Singh & Ors. vs. Thakur Lal Rudra Partab Narain Singh &  

Ors. [1926 Privy Council 100], it was urged that the entry in the revenue  

21

records do not prove possession;, on the other hand, our attention was drawn  

to the order passed by the Financial Commissioner dated 25.2.2002 in terms  

whereof the order of the appellate authority whereupon reliance has been  

placed by the High Court to contend that the order passed by the revenue  

authorities  mutating  the  names  of  the  accused  had  been  set  aside.   The  

Financial Commissioner, even if the subsequent event is to be taken note of,  

in his order held that actual possession cannot form the basis of mutation of  

the name of a person claiming to be in possession in the revenue records.   

14. We would, therefore, proceed on the basis that the entries made in the  

revenue records were not decisive for proving actual possession.   

For the purpose of appreciation of evidence on possession, however,  

the  legal  position  should  have  been considered.   Appellants  herein  were  

purchasers.  We have noticed hereinbefore that they did not obtain any right  

to possess the land having not purchased any definite portion of the land;  

they merely purchased undivided share.  Thus, even their vendor could not  

have put  them in possession.   Even otherwise,  it  has not been denied or  

disputed  that  the  deceased  and  his  family  were  in  possession  prior  to  

28.6.1993.  

22

If that be so, having regard to the provisions contained in Section 110  

of  the  Indian  Evidence  Act,  1872,  a  presumption  would  arise  that  the  

deceased and the members of his family continued to be in possession.   

The sole question, therefore, which arose for consideration before the  

learned  trial  judge  and  consequently  before  the  High  Court  was  as  to  

whether the purported overt  acts committed by the accused on 28.6.1993  

would amount to ‘settled possession’ so as to enable them to exercise their  

right of private defence in respect of the property.  Strong reliance has been  

placed before the learned trial judge as also before us on Puran Singh & Ors.  

vs. The State of Punjab [(1975) 4 SCC 518] wherein  Fazal Ali, J. speaking  

for the Bench considered the earlier decision of this Court in Munshi Ram  

vs. Delhi Administration [(1968) 2 SCR 455], to hold:

“…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,  

23

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 word '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  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  prossendie.  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  

24

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.

These principles logically flow from a long catena  of  cases  decided  by  this  Court  as  well  as  other  High Courts some of which have been referred to  in  the  judgment  of  this  Court  in  Munshi  Ram's  case (supra).”

xxx xxx xxx

“18. The second point that falls for determination  is  as  to  what  is  the  extent  of  right  of  private  defence which the accused can claim in this case?  In  this  connection,  the  High  Court  has  given  a  finding that since the prosecution party had entered  the  land  in.  possession  of  the  accused  and were  trying  to  plough  it,  the  appellants  should  have  taken recourse to the public-authorities instead of  indulging  in  free  fight  with  the  prosecution.  In  other words, the High Court found that the right of  private defence available to the accused was under  the limitations provided for in Sections 99 to 102  of  the  Indian  Penal  Code  and  these  limitations  apply  to  the  facts  of  the  present  case,  and  the  accused cannot claim any right of private defence.  With  respect  we  find  ourselves  unable  to  agree  with this somewhat broad statement of the law. It  is true that the right of private defence of person or  property  is  to  be  exercised  under  the  following  limitations:

25

(i) that if there is sufficient time for recourse to  the public authorities the right is not available;  

(ii) that more harm than necessary should not be  caused;  

(iii) that there must be a reasonable apprehension  of  death  or  of  grievous  hurt  to  the  person  or  damage to the property concerned.”

(See also Rame Gowda (Dead) by L.Rs. vs. M. Varadappa Naidu (Dead) by  

L.Rs. & Anr. [(2004) 1 SCC 769]

The four attributes of settled possession referred to in  Puran Singh  

(supra), in our opinion, ought to be read conjunctively and not disjunctively.

15. We may also add that  the question must be considered keeping in  

view the facts and circumstances of each case.  The parties were on litigating  

terms.  The  first  informant  and  his  family  were  attending  the  court  in  

connection with litigations concerning the very self same land. The accused  

persons came stealthily with a tractor and cultivated it.  The High Court, in  

our  opinion,  for  good reasons  opined  that  they  had  not  sown any  Bajra  

which was the specific defence taken by the accused.  Ram Avatar, Halka  

Patwari  (PW7),  who  was  an  independent  witness,  in  his  evidence,  

categorically stated that he could not say as to whether any crop was sown.  

26

He,  however,  opined  that  had  the  crop  been  sown 16  days  prior  to  the  

occurrence, then the same would have grown to the extent of 6 inch to 1 feet.  

Such  a  solitary  overt  act  which  had  not  been  repeated  on  days  

subsequent  to  14.6.1993 in  respect  whereof  even some litigations  started  

and, thus, the same cannot give rise to an inference that the accused were in  

settled possession of the land and other attributes in regard thereto have been  

satisfied so as to enable them to claim a right of private defence in respect of  

the property.   

In view of the decision in  Puran Singh (supra),  the trespassers  not  

only must be put in actual physical possession of the property but also must  

continue to be in possession.  Acquiescence to act of purported possession  

by the accused on the part of the complainant would arise only if an attempt  

is made to take possession in their presence.  On the date of occurrence, PW  

8 started cultivating.  It has been amply proved that the scuffle lasted for  

only two minutes to two and half minutes. PW8 – Rajbir was not armed with  

any weapon, so was not Harda Ram (the deceased).  It was Lal Singh alone  

who had in his hand a small twig (Kamari).  According to him, the same is  

used to drive camels.  Kamari was said to be used by Lal Singh in his sole  

27

defence as a result whereof Sheo Ram and Raja Ram were injured.  We have  

noticed hereinbefore that the injuries on the person of the said two accused  

were simple in nature.  It is true that the fact that two of the accused persons  

had suffered injuries had not been disclosed in the FIR or in their statement  

before  the  Investigating  Officer,  but  the  same,  in  our  opinion,  was  not  

necessary inasmuch as they got themselves medically examined by Dr. Goel  

almost  at  the  same  time  when  the  other  prosecution  witnesses  got  

themselves examined.  By that time they had already been arrested.  It was  

the  police  authorities  who  had  submitted  an  application  along  with  the  

injuries chart. They had been brought by Constable Satbir Singh.  Thus, the  

fact that two of them had suffered injuries in the same incident was known  

to the Investigating Officer.    

It has furthermore well settled that whereas grievous injuries suffered  

by  the  accused  are  required  to  be  explained  by  the  prosecution,  simple  

injuries need not necessarily be.  Non explanation of simple injuries of the  

nature suffered by the accused would not be fatal.

In  Hari  vs.  State of Maharashtra [2009 (4) SCALE 103], this Court  

held:

28

“30.  On  the  other  question,  namely,  non- explanation  of  injury  on  the  accused  persons,  learned  Counsel  for  the  appellant  has  cited  a  decision  in  Lakshmi  Singh  and  Ors. v.  State  of  Bihar  (1976)  4  SCC 394.  In  the  said  case,  this  Court  while  laying  down  the  principle  that  the  prosecution has a duty to explain the injuries on  the person of an accused held that non-explanation  assumes  considerable  importance  where  the  evidence consists  of  interested witnesses and the  defence  gives  a  version  which  competes  in  probability with that of the prosecution case.

31. But  while  laying  down  the  aforesaid  principle, learned Judges in paragraph 12 held that  there are cases where the non-explanation of  the  injuries  by  the  prosecution  may  not  affect  the  prosecution  case.  This  would  "apply  to  cases  where  the  injuries  sustained  by  the  accused  are  minor and superficial or where the evidence is so  clear and cogent, so independent and disinterested,  so probable, consistent and creditworthy, that it far  outweighs the effect of the omission on the part of  the prosecution to explain the injuries." Therefore,  no  general  principles  have  been  laid  down  that  non-explanation of injury on accused person shall  in all cases vitiate the prosecution case. It depends  on the facts and the case in hand falls within the  exception mentioned in paragraph 12 in  Lakshmi  Singh (supra).”

16. The nature of injuries suffered by the deceased and the prosecution  

witnesses have been noticed by us.  They had been caused by lathis and/or  

29

jallies.  Accused, therefore, were fully armed with when they came to the  

place of occurrence.  They not only assaulted the deceased indiscriminately,  

but the prosecution witnesses were also not spared.  The learned trial judge  

laid emphasis on the fact that the injuries on the person of Sheo Ram and  

Raja Ram had not been explained.  We may notice that Lal singh in his  

examination-in-chief itself disclosed as under:

“I  had a  Kamari  with  which I  used to  drive the  camel.  I had inflicted an injury with Kamari blow  to Raja Ram hitting over his head.  One Kamari  blow had been given by me to Sheo Ram.  Two- four Kamari blows had been blown by me in the  air and the same might have hit the accused party.

Mr. Sushil Kumar, however, drew our attention to his denial to the  

suggestion made to the said witness, which is in the following terms:

“It is further incorrect to suggest that Harda Ram  and I had caused injuries to Raja Ram and Sheo  Ram.”

From  the  question  put  to  the  said  witness,  it  is  evident  that  two  

questions were clubbed together which should not have been permitted by  

the learned trial judge.  The fate of the said statements must, therefore, be  

30

considered having regard to the nature of the suggestion put to him.  It is  

also worthwhile to notice that Rajbir (P.W.8) also accepted that Lal Singh  

had caused injuries to Sheo Ram and Raja Ram in his self defence.  Lal  

Singh’s presence at the spot, therefore, cannot be denied or disputed.  The  

fact that some incident had taken place also could not be denied or disputed.  

17. It  has been contended that  the FIR was anti  dated and anti  timed.  

Such a contention was raised inter alia on the premise that the first informant  

got his father admitted in the General Hospital, Narnaul at about 1.35 p.m.  

whereas the FIR was lodged at about 1.50 p.m. at Ateli having regard to the  

fact that one has to take at least half an hour to reach Ateli from the General  

Hospital, Narnaul in his own conveyance and also having regard to the fact  

that Head Constable Kailash Chand (P.W. 13) reached the hospital at about  

5.00 p.m.

The  High  Court,  on  the  other  hand,  opined  that  by  the  time  the  

examination of the deceased had ended which may be at about 2.30 p.m.; the  

first informant (P.W. 8) must have reached the hospital as, according to the  

High Court, it takes about 15-20 minutes to cover the distance from Ateli to  

Narnaul.   

31

The said contention cannot be sustained having regard to the fact that  

by 1.30 p.m. or 1.40 p.m. even accused persons were arrested; they had been  

produced before Dr. Goel and they had been examined; even P.W.12 and  

other witnesses were also examined.   

The  FIR  might  have  been  recorded  at  a  later  stage.   But  the  

information about the occurrence must have been given by P.W. 8. to the  

office in-charge of Ateli Police Station prior thereto.  Even a copy of the FIR  

was received by the Magistrate concerned at about 10.30 p.m. on the same  

day. Furthermore, the Investigating Officers were not cross examined on that  

point.  In any event, it is wholly unlikely that the FIR was anti-timed and  

anti-dated.  Even assuming that the same was anti-timed or anti-dated, the  

fact  that an incident had occurred was not disputed.  At least two of the  

accused  persons  accepted  their  presence.   The  defence  story  is  that  two  

accused  persons  had  sustained  injuries  at  the  hands  of  the  prosecution  

witness Lal Singh (P.W.12).   

If occurrence of the incident stands admitted, in our opinion, even if  

some delay has been caused in writing of the FIR, the same would not render  

the entire prosecution case suspicious.   

32

18. This brings us to the question as to whether a case for exercise of right  

of self defence has been made out.

We have noticed hereinbefore that the appellants cannot be said to  

have been in ‘settled possession’ of the land in question.  Furthermore, they  

came wholly armed, whereas except Lal Singh who was having a small twig  

(Kamari), deceased party were not armed with any weapon.  It was not a  

dangerous  weapon.  No grievous  injuries  could  have  been caused  by use  

thereof and in fact no grievous injuries have been suffered by the accused  

Sheo Ram and Raja Ram.

Appellants herein did not raise any plea of self defence. According to  

them, they were not present at the spot at all.  Learned Senior Counsel would  

contend  that  Accused  No.1  and  Accused  No.  6  raised  the  plea  of  self  

defence.   The learned trial  judge although accepted the said plea but  the  

same was accepted not with particular reference to the said accused.  All the  

accused persons  did  not  raise  the  defence  of  exercise  of  right  to  private  

defence. In regard to claim of right of self defence, the matter may have to  

be considered from somewhat a different angle. Accused Nos. 6, 7 and 8  

33

were attributed with assault of Lal Singh and two ladies, namely, Mamli and  

Dhankauri.   

19. The second part of the story was not relied upon.  Any overt act on  

their part, thus, having regard to the fact that the deceased – Harda Ram –  

had already been assaulted, there was no evidence against Raja Ram as also  

accused Nos. 7 and 8 that they had participated in assaulting the deceased.  

The right of private defence can be exercised provided any occasion  

arises therefor.  The learned trial judge wrongly held so, on the premise that  

the appellants were in settled possession of the property.  If they were not,  

they had no right of private defence to defend the possession of the property.  

They were, thus, the aggressors being fully armed.

We are not unmindful of the fact that right of private defence need not  

be specifically  raised.   {See  Bishna Alias  Bhiswadeb Mahato  & ors.  vs.  

State of W.B. [(2005) 12 SCC 657]}.  

We  may  notice  that  in  Surendra  &  Anr.  v.  State  of  Maharashtra  

[(2006) 11 SCC 434], this Court held:

34

“26. We are not unmindful of the fact that in all  circumstances injuries on the person of the accused  need  not  be  explained  but  a  different  standard  would be applied in a case where a specific plea of  right of private defence has been raised.  It may be  true  that  in  the  event  prosecution  discharges  its  primary burden of proof, the onus would shift on  the accused but the same would not mean that the  burden  can  be  discharged  only  by  examining  defence witnesses.   27. The  learned  courts  below  committed  a  manifest error of law in opining that the Appellants  had not discharged the initial burden which is cast  on them.  Even such a plea need not be specifically  raised.  The Courts may only see as to whether the  plea of exercise of private defence was probable in  the facts and circumstances of the case.  32. In  regard  to  the  duty  of  the  prosecution to explain the injuries on the part of  the accused, this Court observed:

‘78. Section  105  of  the  Evidence  Act casts the burden of proof on the  accused who sets up the plea of self- defence and in the absence of proof, it  may not be possible for the court  to  presume the correctness or otherwise  of the said plea. No positive evidence  although is required to be adduced by  the accused; it is possible for him to  prove  the  said  fact  by  eliciting  the  necessary  materials  from  the  witnesses  examined  by  the  prosecution. He can establish his plea  also from the attending circumstances,  as  may  transpire  from  the  evidence  led by the prosecution itself.

35

79. In a large number of cases, this  Court,  however,  has  laid  down  the  law that a person who is apprehending  death or bodily injury cannot weigh in  golden  scales  on  the  spur  of  the  moment  and  in  the  heat  of  circumstances, the number of injuries  required to disarm the assailants who  were  armed  with  weapons.  In  moments of excitement and disturbed  equilibrium  it  is  often  difficult  to  expect  the  parties  to  preserve  composure  and  use  exactly  only  so  much  force  in  retaliation  commensurate  with  the  danger  apprehended to him where assault  is  imminent  by  use  of  force.  All  circumstances  are  required  to  be  viewed  with  pragmatism  and  any  hypertechnical  approach  should  be  avoided. 80. To put it simply, if a defence is  made out, the accused is entitled to be  acquitted  and  if  not  he  will  be  convicted  of  murder.  But  in  case  of  use  of  excessive  force,  he would be  convicted under Section 304 IPC.”

In Satya Narain Yadav v. Gajanand & Anr. [2008 (10) SCALE 728],  

this Court held:

“14. As  noted  in  Butta  Singh  v.  The  State  of  Punjab  (AIR  1991  SC  1316),  a  person  who  is  apprehending death or bodily injury cannot weigh  in golden scales in the spur of moment and in the  heat  of  circumstances,  the  number  of  injuries  

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required to disarm the assailants who were armed  with  weapons.   In  moments  of  excitement  and  disturbed mental equilibrium it is often difficult to  expect the parties to preserve composure and use  exactly  only  so  much  force  in  retaliation  commensurate with the danger apprehended to him  where assault is imminent by use of force, it would  be lawful to repel the force in self-defence and the  right of private defence commences, as soon as the  threat becomes so imminent.  Such situations have  to  be  pragmatically  viewed  and  not  with  high- powered spectacles or microscopes to detect slight  or even marginal overstepping.  Due weightage has  to be given to, and hyper technical approach has to  be  avoided  in  considering  what  happens  on  the  spur  of  the  moment  on  the  spot  and  keeping  in  view normal human reaction and conduct,  where  self-preservation  is  the  paramount  consideration.  But, if the fact situation shows that in the guise of  self-preservation, what really has been done is to  assault the original aggressor, even after the cause  of  reasonable  apprehension  has  disappeared,  the  plea of right of private-defence can legitimately be  negatived.  The Court dealing with the plea has to  weigh the material to conclude whether the plea is  acceptable.   It  is  essentially,  as  noted  above,  a  finding of fact.”

(See  also  Ravishwar  Manjhi  &  Ors.  vs.  State  of  Jharkhand [2008  (16)  

SCALE 45)

In Bhanwar Singh & Ors. vs. State of M.P. [2008 (7) scale 633], this  

Court held:

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“51. To put it pithily, the right of private defence is  a defence right. It is neither a right of aggression or  of  reprisal.  There  is  no  right  of  private  defence  where  there  is  no  apprehension  of  danger.  The  right  of  private  defence is  available  only  to  one  who is suddenly confronted with the necessity of  averting an impending danger not of self creation.  Necessity must be present, real or apparent.

52. The basic principle underlying the doctrine of  the  right  of  private  defence  is  that  when  an  individual or his property is faced with a danger  and immediate aid from the state machinery is not  readily  available,  that  individual  is  entitled  to  protect himself and his property. That being so, the  necessary corollary is that the violence which the  citizen defending himself or his property is entitled  to use must not be unduly disproportionate to the  injury which is sought to be averted or which is  reasonably apprehended and should not exceed its  legitimate  purpose.  We may,  however,  hasten  to  add  that  the  means  and  the  force  a  threatened  person adopts at the spur of the moment to ward  off the danger and to save himself or his property  cannot be weighed in golden scales.  It  is neither  possible  nor  prudent  to  lay  down  abstract  parameters which can be applied to determine as to  whether  the  means  and  force  adopted  by  the  threatened  person  was  proper  or  not.  Answer  to  such a question depends upon host of factors like  the  prevailing  circumstances  at  the  spot,  his  feelings at the relevant time; the confusion and the  excitement depending on the nature of assault on  him etc. Nonetheless, the exercise of the right of  private  defence  can  never  be  vindictive  or  malicious.  It  would  be  repugnant  to  the  very  concept of private defence.”

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It was furthermore observed that it is not in all situations that such a  

right  can  be  claimed  only  because  some  of  the  accused  persons  have  

suffered injuries even if they are simple.   

20. We have been taken through the depositions of P.W. 8 and P.W. 12.  

P.W.12’s presence stands admitted. P.W.8’s presence has been doubted by  

the learned Sessions Judge only on the ground that he got his father admitted  

at 2.30 p.m. The presence of P.W. 8 – Rajbir, in our opinion, could not have  

been doubted on such slender evidence.  He was driving the tractor. Accused  

persons  came  prepared  to  assault  the  deceased.   By  the  time  the  first  

informant could come and intervene, the entire incident must have occurred  

as it is stated that the same took place only for two to two and half minutes.  

No suggestion had been given to any of the prosecution witnesses by the  

defence that no tractor was found at the place or it was the deceased who  

himself was driving the tractor.  P.W. 8 in his evidence categorically stated  

that he left  the tractor at  that  place.   Furthermore,  his evidence,  taking a  

holistic view of the matter, in our opinion, appears to be trustworthy.  He  

vividly described the entire incident.  He was cross examined on all material  

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points.   He  had  also  explained  as  to  why  he  did  not  suffer  any  injury  

categorically stating and that too in cross-examination that by the time he  

reached all the accused had started running with their weapons towards their  

respective houses.  

21. There cannot be any doubt or dispute whatsoever that if two views are  

possible,  the  Appellate  Court  should  not  interfere  with  a  judgment  of  

acquittal, but this has many exceptions.   

In  State of Punjab  vs.  Gurnam Kaur & Ors. [2009 (4) SCALE 343]  

this Court held:

“18. The  jurisdiction  of  this  court  to  interfere  with a judgment of acquittal is limited.  When two  views are possible, a judgment of acquittal should  not be interfered with.”

In U.O.I.  vs. Bal Mukund & Ors. [2009 (4) SCALE 606], this Court  

held:

“41. Furthermore,  we  are  dealing  with  a  judgment of acquittal.  The High Court, for good  and sufficient  reasons,  had arrived at findings of  fact  both  with  regard  to  voluntariness  of  the  purported confessions made by the respondents as  

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also  compliance  of  the  mandatory  statutory  provisions  vis-à-vis  directions  issued  by  the  Central Government in making search, seizure as  also taking of samples for the purpose of chemical  examination having been doubted, we do not see  any reason why we should take a contrary view as  it is well-known that the appellate court would not  interfere with a judgment of acquittal only because  another view is possible.  On the other hand, if two  views are possible,  it  is  trite,  the appellate  court  shall not interfere.”

It is one of those cases, where two views were not possible.

22. For the aforementioned reasons, the appeal is dismissed.  Appellants  

are on bail.  Their bail bonds shall stand cancelled.  Accused persons are  

directed to surrender forthwith to serve out the remaining sentence.

.……………………………….J. [S.B. Sinha]

...…………………………..…J. [Dr. Mukundakam Sharma]

New Delhi; May 12, 2009

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