A.F.R.

Judgment Reserved On: 31.08.2021

Judgment Delivered On: 29.10.2021

Court No. - 48

Case :- CRIMINAL APPEAL No. - 530 of 1982

Appellant :- Mahabir And Others

Respondent :- State Of U.P

Counsel for Appellant :- C.S. Saran,Amar Saran,Devendra

Swaroop,Sikandar B. Kochar

Counsel for Respondent :- D.G.A.,A.G.A.

Hon'ble Anjani Kumar Mishra,J.

Hon'ble Syed Aftab Husain Rizvi,J.

(Delivered by Hon'ble Syed Aftab Husain Rizvi,J.)

1.Heard Sri Sikandar B. Kochar, learned counsel for the appellants and

Sri Ajeet Ray, learned A.G.A. for the State.

2.This criminal appeal has been filed against the judgment and order

dated 27.02.1982 passed by IV Additional Session Judge, Muzaffarnagar in

S.T. No 259 of 1981, convicting and sentencing the appellant Mahabir,

Krishan Pal, Daulat, Topi, Ghasita, and Dharma to 2 years rigorous

imprisonment under Section 148 and life imprisonment under Section 302

I.P.C. read with Section 149 I.P.C. Both the sentences shall run concurrently.

3.In brief, the prosecution case is that on 10.03.1980 at about 10:15 a.m.

a Case Crime No.70 under Section 148, 149, and 302 I.P.C. was registered

at Police Station- Bhopa, District- Muzaffarnagar on an application of Ram

Gopal dated 10.03.1980. It was alleged in the application that to construct

the houses for weaker sections a unanimous resolution was passed by the

Gram sabha Wazirabad, for which a meeting was held a month earlier and

plots were already allotted, 32 beneficiaries were selected for the

construction of houses and Jagmohan was also included in it and his house

was also to be constructed. Jagmohan has laid the foundation of his house, a

day before. On 10.03.1980 at about 09 a.m. Jagmohan was raising

construction on the foundation. Co- villagers, Mahabir holding a Lathi,

Krishan Pal holding a Ballam, Daulat holding a Tabbal, Topi holding a

Ballam, Ghasita holding an axe, and Dharma holding a Bhala in their hands

came abusing and started dismantling the foundation. In the meantime, the

brother of the complainant Harnam also reached the spot. Harnam and

Jagmohan both forbade the accused from abusing and dismantling the

foundation. Accused suddenly pounced upon Harnam and started to beat

him with the weapons in their hands. Devi Sahai, Rehala Das, and Tilak

Ram tried to save Harnam but the accused continued to beat him due to

which Harnam suffered serious injuries on his head, mouth, forehead, neck,

chest, and abdomen. Jagmohan and Harnam also wielded lathi in defence.

Harnam became unconscious and fell down due to injuries suffered by him

and died on the spot. As his body was warm he was taken to Government

hospital Morna in a horse carriage but the doctor was not present there then

he was carried to Bhopa hospital where the doctor declared him dead. The

incident was narrated by Jagmohan to the complainant and he has come to

lodge the report leaving the dead body of Harnam in the horse carriage at

Bhopa hospital and Jagmohan is beside the dead body.

The investigation commenced and the Investigating Officer on the

same day recorded the statement of the complainant and came to Bhopa

hospital, appointed S.I. Shyam Dhan Gupta for inquest who conducted the

inquest proceedings and sent the body for post-mortem examination.

Investigating Officer recorded the statements of other witnesses, arrested the

accused, and sent them to the police station. Thereafter he searched the

houses of the accused and recovered a blood-stained lathi from the house of

accused Mahabir and a blood-stained Tabbal from the house of the accused

Daulat, sealed it, and prepared its memo. Investigating Officer also visited

the place of occurrence and prepared the site plan and collected blood-

stained soil and plain soil and sent the articles for chemical examination.

Thereafter on different dates recorded the statements of other witnesses and

after completion of investigation submitted the charge sheet against all the

six accused persons named in the F.I.R. under Section 147, 148, and 302

I.P.C.

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4.The learned Trial Court framed charges against the accused Mahabir,

Krishan Pal, Daulat, Topi, Ghasita, and Dharma under Sections 148, 302

read with Section 149 I.P.C. Accused pleaded not guilty and claimed for

trial. The prosecution produced eight witnesses who have proved 15 papers

as Ex.Ka-1 to 15 and 4 material exhibits. The statements of the accused were

recorded under Section 313 Cr.P.C. in which they have denied the

incriminating evidence. Accused Dharma has said that he was not present on

the spot. Accused Ghasita, Topi, and Krishan Pal have said that Ram Gopal,

Jagmohan, Rati Ram, and Tilak Ram were forcibly trying to take possession

of the land of Hargyan and when it was objected, they assaulted them and

Hargyan with lathi and Tabal. The accused also wielded lathi in defence.

Accused Mahabir has stated that he was not present on the spot. He went to

the police station to lodge a report with Krishan Pal and others, but were

detained there. Two defence witnesses Dr. S.R. Rayal DW-1 and Dr. D.C.

Mubar DW-2 have been examined. The learned Trial Court by the impugned

judgment has held all the accused guilty for charges under Section 148, 302

read with Section 149 I.P.C.

5.Learned counsel for the appellants contended that Ram Gopal the

brother of complainant and deceased was Pradhan of Goan Sabha Wazirabad

and he illegally allotted a plot to his brother Jagmohan. This allotment was

cancelled but Jagmohan and his brothers were trying to forcibly take

possession of the disputed land and raised construction on it, when objected

by the accused and Hargyan they assaulted them with lathi and tabbal

causing grievous injuries. The accused also defended themselves and in

exercise of such right injuries were caused to Harnam causing his death. The

act of the accused are covered by the right of private defence of person. The

complainant party has no right of private defence of property as they have no

right or title on the disputed land. The learned trail Court has failed to

appreciate the evidence in its right perspective and findings recorded by it

are erroneous and bad in law. Learned counsel for the appellants further

contended that accused Dharma, Daulat and Mahabir were not present at the

time of occurrence and they have been falsely implicated. They have gone to

police station with injured accused Krishna Pal, Topi and Ghasita and other

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injured Hargyan to lodge the report but they were detained at the police

station. The report was not lodged and after registration of the F.I.R. of the

complainant the report of the accused was lodged. The accused persons are

liable to be acquitted.

6.Learned A.G.A. contended that the disputed land was allotted to

Jagmohan in 1972 and he has taken possession of it and constructed a hut on

it. Jagmohan was in possession of the disputed land and one day before the

incident he has laid the foundation of his house. At that time no objection

was raised by the accused. At the time of incident when Jagmohan with

Manson and labourers was at the site to construct the walls on the

foundation, the accused persons in pre-planned manner armed with deadly

weapons came on the spot and started to dismantle the foundation and

assaulted Harnam and Jagmohan. Harnam suffered serious injuries in this

assault and died on the spot. The accused persons have no right of private

defence and they are aggressors. The learned trial Court has fully discussed

and appreciated the entire evidence on record and findings recorded by it is

proper and there is no illegality or perversity in it. The appeal is liable to be

dismissed.

7.Post-mortem of Harnam (deceased) was conducted on 11.03.1980 at

12:30 p.m. by Dr. Pramod Kumar. According to the post-mortem report

Ex.Ka-12 age of the deceased was 32 years, average built body, rigor mortis

was present in both upper and lower extremities, eyes closed, mouth half-

open.

Following antemortem injuries were found on the body of the

deceased:-

1. Lacerated wound 1 ½” x ¾” x bone deep on left eye brow.

2. Lacerated wound ½” x ¼” x muscle deep on left eye outer angle.

3. Incised wound 2 ½” x ½” x bone deep present on left side head, 2½

above the left ear, direction anterio posterior, underlying bone was

fractured. Margins contused.

4. Incised wound 1 ½” x ½” x bone deep present on left of head mid line

anteroposteriorly placed, margins contused.

5. Incised wound ½” x 1/4” x scalp deep present on left side head at hair

line anteroposteriorly placed, 3” above the left eye brow.

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6. Incised wound 1/2” x ¼” x scalp deep present on left side head, ½”

below and parallel to injury no. (5)

7. Lacerated wound ½” x ¼ x muscle deep on left side back of about 1”

left to the mid line at the level of the inferior angle of the scapula.

8. Abrasion 5” x 1 ½” on back of right side chest just below the inferior

angle of the scapula (Rt)

9. Punctured wound ½” x ¼” x chest cavity deep present on the left

front of the chest at Costo sternum junction of 5th rib, junction is cut-

The injury direction directly backward.

10. Punctured wound ½” x ¼” x chest cavity deep present on the left

front of chest just below the middle of left clavicle, direction- directly

backward.

11. Lacerated wound ½” x ¼ ” x muscle deep on front of left abdomen

3½ away at 1’ O clock position to umbilicus, direction Horizontal.

12. Lacerated wound ½” x ¼” x bone deep on the outer aspect of left

forearm ½ above left wrist, direction horizontal.

13. Lacerated wound 1” x ¼” on front of Right leg-(bone deep), 3”

below Right knee.

In the internal examination, the left parietal bone was fractured under

injury no.3, a small external haematoma on the left side of the cerebrum.

Left Pleura contains 6 oz blood, left lung was punctured under injury no.10.

The pericardium was punctured and 2 oz blood was there. The left ventricle

of the heart was punctured under injury no.9 and the heart was empty. In the

stomach semi-digested food, large Intestine faecal matter and gases were

present. The small intestine was empty. Gall Bladder was half full and the

bladder was full.

The cause of death was shock and haemorrhage due to ante-mortem

injuries and the duration was about one day.

Dr. Pramod Kumar in his statement has stated that the death may have

occurred on 10.03.1980 at 09 a.m. and all the injuries were sufficient in the

ordinary course of nature to cause death. Lacerated wounds were possible

from lathi while incised wounds were possible from Tabbal and axe. Injuries

no. 9 and 10 were possible from Ballam and abrasions were possible from

fiction or from fall on the ground. Witness has also confirmed that injuries

no. 3 and 4 may be caused by Tabbal Ex.-2/1.

8.Prosecution to prove its case has produced 8 witnesses, out of which 3

are public witnesses. Ram Gopal is the informant but he is not an

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eyewitness. The Incident was narrated to him by his brother Jagmohan and

on this, he wrote the application and lodged the report. The witness in his

examination-in-chief has said that he is Pradhan of Wazirabad since 1972.

He has made allotment of Gram Samaj land and has also allotted one plot

measuring 154 square-yards to his brother Jagmohan in the village Abadi.

Jagmohan has deposited Rs.50/- for its value and a receipt dated 30.12.1972

was issued to him under his signature. The witness has proved this receipt as

Ex.Ka-1. Witness has further stated that after this allotment Jagmohan was in

possession of this plot and he constructed a hut on the said plot. In 1980

under the Government Scheme, the houses for weaker sections were to be

constructed on such plots, and an amount of Rs.1,570/- was fixed for each

house. One month before the incident, a meeting of Goan Sabha was held in

which B.D.O., A.D.O. (A.G.), Gram Sevak, Secretary and he himself were

present and it was decided to construct houses for 32 families whose income

were less than Rs.2,000/- per annum. The resolution was written in the

register. He has filed the original register and proved it as Ex.Ka-2. Witness

has further stated that the khasra number of Jagmohan’s plot is 541 and the

total area is 3 bigha, 1 biswa, 5 biswansi and in Khatauni it is entered as

Harijan Abadi. Narrating the other allegations of the F.I.R. witness has

proved the F.I.R. as Ex.Ka3. Witness has further stated that Sub-Inspector

came into the village on the day of the incident and in his presence, the

houses of Mahabir and Daulat were searched. One lathi with blood stains

was recovered from the house of the Mahabir and one Tabbal with blood

stains was recovered from the house of Daulat. Sub-Inspector prepared its

memo exhibits Ka 4 and 5. Witness has proved its signature on it and pieces

of lathi and tabbal as exhibits 1/1 to 1/4 and 2/1 to 2/3.

9.Jagmohan is the eyewitness. In his examination-in-chief the witness

has stated that Harnam was his real brother. 8 years earlier a plot of 154

square yards (14 yards in length and 11 yards in width) was allotted to him

by the Gram Samaj in village Wazirabad. He has taken possession of the

land after 10-15 days of the allotment and constructed a hut on it. The wall

of the hut was of bricks with a thatched roof. A meeting of B.D.O., A.D.O.

(A.G.), Gram Sevak, and others was held in which it was decided that an

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amount of Rs.1,500/- will be given to each of 30-32 families for construction

of the houses. His name was also included in the list of beneficiaries. A day

before the incident he laid the foundation and wanted to construct one room

and verandah on it. On the day of the incident at 9 a.m., he with Devi Sahai

Mason, Rulha, and Tilak Ram was on the site to erect walls. Suddenly

Mahabir, Daulat, Krishan Pal, Topi, Ghasita, and Dharma came there.

Mahabir was holding a Lathi, Krishan Pal holding a Ballam, Daulat holding

a Tabbal, Topi holding a Ballam, Ghasita holding an axe, and Dharma

holding a Bhala in their hands. They started abusing and said that they will

not permit the construction of the house there and started to dismantle the

foundation. In the meantime, Harnam also came there. He was holding a

lathi. Harnam asked them why they are dismantling the foundation. Accused

said that he will be taught a lesson and killed. All the accused with the

weapons in their hands started to assault Harnam. He and Harnam wielded

lathi in their defence. He did not suffer any injury. Harnam suffered several

injuries. Receiving injuries and moving back Harnam fell down on the way

in the north of well. Devi Sahai, Daulat Ram, Rulha also saw the incident.

He went to his brother Ram Gopal and narrated the incident, then he and

Ram Gopal came on the spot. As the body of Harnam was warm but he was

not talking, they carried him to Morna hospital in a horse carriage where the

doctor was not present, then he was carried to Bhopa hospital where the

doctor examined him on the horse carriage itself and declared him dead.

From there Ram Gopal went to lodge the report.

10.Devi Sahai P.W-3 is also an eyewitness. In his examination-in-chief,

the witness has said that he has gone on the plot of Jagmohan in village

Wazirabad for mason work with Rehla Das and Tilak Ram the two labourers.

This plot is near the houses of the accused and there is one public well in the

north of this plot. On 09.03.1980 he has laid one feet high foundation

beneath the ground. On the next day at about 8:30 a.m. they reached at the

site. Jagmohan was also there. The foundation was constructed by

Jagmohan. The incident is of 10.03.1980. The construction work was about

to start. Mahabir holding a Lathi, Krishan Pal holding a Ballam, Daulat

holding a Tabbal, Topi holding a Ballam, Ghasita holding an axe, and

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Dharma holding a Bhala in their hands came and prevented Jagmohan from

construction work. Jagmohan said he will certainly construct his house, then

the accused started abusing. In the meantime, Harnam holding a lathi came

there and he also abused and said that they will construct the house. The

accused started to assault. Before the arrival of Harnam accused have

dismantled the foundation. Harnam and Jagmohan beat the accused with

lathi. Jagmohan did not suffer any injury. Harnam died on the spot due to

injuries. Harnam when assaulted fell moved back down on the way near the

well where blood oozed out and spilled on the ground.

11.B.M. Mishra, S.O. PW-8 is the Investigating Officer. In his

examination-in-chief, he has stated that on 10.03.1980 he started the

investigation of this case, recorded the statements of the complainant and

constable Prakash Chandra. He reached Bhopa hospital and directed S.I.

Shyam Dhan Gupta to conduct inquest proceedings. He visited the place of

occurrence and raided the houses of the accused and arrested them and sent

them to the police station through S.I. Surendra Singh. Then he recovered a

blood-stained lathi from the house of Mahabir and a blood-stained tabal

from the house of Daulat and prepared its memo. He visited the place of

occurrence and prepared the site plan and collected blood-stained and plain

soil from the place of occurrence in two separate containers and prepared its

memo and sealed it. Recorded the statement of other witnesses, and sent the

materials for chemical examination and after completion of investigation

submitted the charge sheet. The witness has proved all the papers as Ex.Ka-

4, Ka-5, and Ex.Ka-13 to Ka-15 and material exhibits 1/1 to ¼, 2/1 to , and

⅔, and

3 and 4.

12.Remaining witnesses are formal in nature. Constable Dharmvir PW-4

has carried the dead body for post-mortem after the inquest proceedings and

has proved the same from his statement. Constable Prakash Chandra PW-5 is

the Chik and G.D. writer and he has proved both the documents as Ex. Ka- 6

and 7. He has also proved the G.D. entry of arrest of accused as Ex.Ka-8.

S.I. Shyam Dhan Gupta PW-6 has conducted the inquest proceeding and

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prepared related papers. Witness has proved the inquest report and related

papers as Ex.Ka-9 to Ex.Ka-11.

13.The prosecution version is that at the time of the incident Jagmohan,

the brother of complainant Ram Gopal and deceased Harnam was on the site

for the construction of his house. The foundation was laid one day before.

The accused persons armed with sharp-edged weapons and lathi came there

and started abusing and dismantling the foundation. In the meantime,

Harnam, the brother of Jagmohan holding a lathi came there. Harnam and

Jagmohan both prevented the accused from dismantling the foundation.

Suddenly the accused with weapons in their hands attacked and severely

beat Harnam who after receiving serious injuries fell down on the way in the

north of the well and died. It is also the prosecution version that Jagmohan

and Harnam wielded lathi in defence causing injuries to accused Topi,

Krishan Pal, and Ghasita. From the material on record it also appears that

there is a cross-version and according to defence Ram Gopal, Jagmohan,

Harnam, Rati Ram and Tilak Ram wanted to forcibly occupy the land of

Hargyan and when it was objected, they assaulted Topi, Ghasita, Krishan Pal

and Hargyan with lathi and tabal. The aforesaid accused wielded lathi and

Ballam in self-defence. Mahabir, Daulat, and Dharma were not present on

the spot. The injured accused and Mahabir and Hargyan went to the police

station to lodge a report but they all were detained and their report was not

registered at that time and after lodging the F.I.R. of the complainant ante-

time, the report of the accused was lodged.

14.From the accused side, two witnesses have been examined. Dr. R.S.

Ruyal DW-1 has examined the injuries of Hargyan, Topi, Krishan Pal, and

Ghasita and according to the medical examination report of Hargyan

Ex.Kha-2 his medical examination was conducted on 10.03.1980 at 2 p.m.

and he was brought by Constable Rohtash Singh, police out post-Morna,

Police Station- Bhopa, District- Muzaffarnagar. Following injuries were

found on his body:-

1. Abrasion (unscabbed) 2 cm x 1 cm on the back of the left wrist.

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2. Lacerated wound 2 cm x 0.5 cm x skin deep on back and root of left

middle finger, obliquely placed. Bleeding on touch.

3. Abrasion (unscabbed) 0.5 cm x 0.5 cm on back and root of the left

index finger.

4. Abrasion(unscabbed) 0.5 cm x 0.5 cm on back and root of the left ring

finger.

5. Tender swelling 7 cm x 6 cm on top of the left shoulder (outer half of

left collar bone).

All injuries were simple in nature except injury no. (5) which was kept

under observation and advised X-Ray in both views.

Object-Blunt, except injury no.1, 3, and 4 which were caused by friction

against a rough surface. The duration was fresh.

Accused Topi was medically examined on 10.03.1980 at 02:30 p.m. and

according to his medical examination report Ex.Kha-3, the following

injuries, were found on his body:-

1. Lacerated wound 2.5 cm x 0.5 cm x skin deep on the left eyebrow,

obliquely placed. Bleeding on touch.

2. Abraded contusion (Unscabbed and red) 4cm x 2 cm in front of chest

Rt. Side at 4’O clock position, 8 cm from Rt. Nipple.

3. Abraded contusion (unscabbed and red) 5cm x 1cm on outer left

forearm just above the left wrist, with swelling 6 cm x 4 cm around it.

4. Abrasion (Unscabbed) 5 cm x 2 cm on the back of the left forearm, 2

cm above injury no.3.

5. Three abrasions (unscabbed) 5cm x 0.5 cm: 5cm x 0.5 cm and 1 cm x

1cm respectively on middle joints and outer surface of Rt. Index finger,

middle finger, and right little finger.

All injuries were simple in nature except injury no.3 which was kept

under observation and advised X-ray in both views.

All injuries were caused by blunt objects except injuries no.4 and 5

which were caused by friction against a rough surface.

All injuries were fresh in duration.

Accused Krishan Pal was medically examined on 10.03.1980 at 3 p.m. and

according to his medical examination report Ex.Kha-4, the following

injuries, were found on his body:-

1. Lacerated wound 4 cm x 0.5 cm on left side top of the head, 13 cm

above left ear, obliquely placed. Bleeding on touch.

2. Abrasion (Unscabbed) 3 cm x 2 cm on front and outer of the left

knee, 3 cm from left tibial tuberosity.

Complaint of pain Rt. Knee and back but no visible injury was there.

Nature-Simple.

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Object- Injury No.1 caused by a blunt object and No.2 by friction

against a rough surface.

Duration-Fresh.

Accused Ghasita was medically examined on 10.03.1980 at 3:30 p.m. and

according to his medical examination report Ex.Kha-5, the following

injuries, were found on his body:-

1. Incised wound 3cm x 0.5 cm x bone deep on Rt. Side forehead, 5 cm

above Rt. Eyebrow, obliquely placed. Margins of the wound were clean-

cut and no tailing was there. Bleeding on touch.

2. Lacerated wound 3cm x 1m x scalp deep on Rt. side head, 7cm above

the right ear. Bleeding on touch.

3. Incised wound 3cm x 1cm x bone deep on outer par of left elbow joint,

transversely placed. Inj. back to front direction. Margins of the wound

were clean-cut and the wound was continual with 3 cm x 11 near

abrasion at its anterior part. Bleeding on touch.

4. Abraded contusion (unscabbed and red) 9 cm x 3 cm on the back and

middle 1/3rd of Rt.forearm, obliquely placed, 13 cm x 8 cm swelling

around it.

Complaint of pain left shoulder left forearm and left leg but no visible

injury was there.

All injuries were simple in nature except injury no.4 which was kept

under observation and advised X-Ray in both views.

Injuries No.1 and 3 were caused by a sharp-edged weapon and No.2 and

4 by a blunt object.

All injuries were fresh in duration.

Dr. R.S. Rayal DW-1 has proved the aforesaid medical examination

report as Ex. Kha- 2 to Ex. Kha- 5.

Dr. D.K. Mubar DW-2 in his examination-in-chief has stated that on

17.03.1980 the X-Ray of the left shoulder of Hargyan was conducted under

his supervision and a fracture of the collar bone was detected. The witness

has proved the X-Ray report as Ex.Kha-6 and X-Ray plate.

15.So, the date and time and place of occurrence are admitted. What is to

be judged is that who are aggressors and whether accused Dharma, Daulat,

and Mahabir were involved in the incident or not and the presence of

Hargyan at the time of occurrence.

16.It is cardinal principle of law that in criminal cases primarily it is the

duty of the prosecution to prove its case beyond reasonable doubt. The

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burden is on the prosecution alone but when there are two versions of the

parties about the same occurrence the Court cannot loose the sight of either

of them and has to consider both the versions in order to come to a

conclusion as who was the aggressor and what was the real genesis of

occurrence. The accused are not required to prove their case to the hilt like

the prosecution, but it is to be seen if the defence version is probable.

17.Admittedly, Ram Gopal, the brother of Jagmohan and Harnam

(deceased) was Pradhan of Goan Sabha Wazirabad. In his cross-

examination, Ram Gopal PW-1 has said that he remained suspended in 1976

for three months in relation to the allotment of land made by him in 1972.

He has further admitted that a case was also filed to cancel the allotments

made by him and allotments made by him were cancelled by the S.D.M. An

appeal was filed before the Collector and the Collector cancelled some of the

allotments. He has further said that in the order of Collector it was not made

clear that which of the allotments were cancelled and which were not. He

has given an evasive reply in this respect but has not specifically denied that

allotment of Jagmohan was not cancelled by the Collector. So from the

statement of Ram Gopal PW-1 the then Pradhan of Goan Sabha Wazirabad,

it is clear that allotment made in favour of the Jagmohan was cancelled and

there was no valid allotment in favour of Jagmohan of the disputed land so

Jagmohan has no right in respect of the disputed land. Further prosecution

has also filed a receipt of allotment dated 30.12.1972 Ex. Ka-1. In this

receipt, the particulars of the land allotted to Jagmohan is described as 11x14

yards, 154 sq. yards of land from Khasra number 541, boundaries of which

are East- Ram Ratan, West- public way, North- well of Harijans, and south-

Rasta. The boundaries as mentioned in this receipt do not match with the

boundaries of the disputed plot as shown in the site plan Ex. Ka-13. In the

site plan Ex. Ka-13 in the west vacant land of Plot No. 542 and in the South

Plot No. 543 having a wheat crop are shown and there is no Rasta either in

the west or in the south as mentioned in the receipt Ex. Ka-1. Further, the

public way (Khadanja) is situated in the west of vacant Plot No. 542 in the

site plan exhibit Ka-13. So the description of the boundaries as mentioned in

the receipt Ex. Ka-1 does not tally with the spot position and it is clear that

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the land allotted vide receipt Ka-3 is not the disputed land and its location is

different. Jagmohan PW-1 in his cross-examination could not tell the Khasra

numbers of the lands allotted by him. He has also said that he does not

remember whether any map was prepared by the Lekhpal. Plots were not

marked on any paper. He has also said that some area of this plot was

allotted earlier and the remaining area was allotted to Jagmohan and others.

He has further said that he has pointed to the I.O., the land where Jagmohan

has laid the foundation. Adjacent to it in the west there is Khasra No. 542

and rasta is in the west of Khasra No. 542 and in the South adjacent to it

there was a wheat field at the time of occurrence. The oral statement of

Jagmohan PW-1 also does not confirm the description of boundaries as

mentioned in the receipt of allotment Ex.Ka-1. The learned trial court has

not considered the fact that allotment made in favour of Jagmohan was

cancelled and there was no valid allotment of the disputed land in favour of

Jagmohan. The learned trial court has also failed to appreciate that the

description of the land allotted as mentioned in the receipt exhibit Ka-1 does

not match with the disputed land. The learned trial court has misread the

evidence regarding the boundaries and has failed to properly appreciate it.

The learned trial court has presumed the possession of the complainant party

on the disputed land on the grounds that after allotment Jagmohan has

constructed a hut on it and further that Jagmohan has laid the foundation on

the disputed land one day before the incident and since Jagmohan was in

possession of this land the accused had no right to disturb his possession or

to use force against him. These observations of the learned trial court are

not justified. Jagmohan PW-2 in his cross-examination has said that 4-5 days

before the incident he has removed the hut and has thrown the bamboo and

straws in the ditches but no sign or remains of any hut has been found on the

spot by the investigating officer. The disputed land is in form of an open

land and is situated near the houses of the accused persons. Since there was

no valid allotment in favour of Jagmohan, they have no right or title on

disputed property. It appears that the complainant party was trying to

forcibly occupy the disputed land and raised construction on it. So their

position was that of a trespasser. No settled possession can be presumed in

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favour of the complainant party just because foundation was laid one day

before the incident. So from material on record, the defence version that the

complainant party was forcibly trying to occupy the land got established and

in such a situation the right of private defence of property will not be

available to the complainant party. The learned trial Court has erred in

holdings that complainant party has right of private defence of property.

18.From the evidence on record, it also stands proved that it was

complainant party who first started the assault. Devi Sahai PW-3 the

independent witness in his cross-examination has said that labourers have

prepared the gara when accused persons came there and prevented

Jagmohan from the construction work. Jagmohan said that he will construct

his house then both the parties started abusing each other. Meanwhile,

Harnam holding a lathi came there and abused and said that he will certainly

construct the house. The witness has further said that before arrival of

Harnam the accused started to remove the bricks then Jagmohan and

Harnam assaulted the accused with lathi. The witness on another place has

also said that Jagmohan has also abused the accused and when the parties

were abusing each other then Harnam said that he is ready with a lathi and at

the time Jagmohan has also picked up a lathi. The witness has also said that

when accused were removing the bricks then Jagmohan and Harnam started

to assault the accused with lathi. As soon as the accused started to remove

the bricks Jagmohan and Harnam started to assault the accused. The

withness has further said that Jagmohan and Harnam have assaulted the

accused for 15 minutes while they remain indulged in removing the bricks of

the foundation. When all the bricks were taken out from the foundation then

accused started to assault. From the above statement of the witness, it is

clear that both the parties were abusing each other and when accused

persons prevented the complainant party from construction work and started

to remove the bricks of the foundation complainant party started the assault.

So the genesis of the occurrence is that the complainant party with Devi

Sahai Mason and two laboures came on the spot to raise construction on the

disputed land. The accused came there and objected. Both the parties

indulged in abusing each other. Accused in order to prevent the complainant

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party from raising construction started to remove the bricks from the

foundation then complainant party started to assault them. From the

evidence on record, it is also established that from the accused side Topi,

Krishna Pal, and Ghasita have suffered visible injuries. Accused Topi has

one lacerated wound on the head, one contusion on the chest, two contusions

on the four arms, and three abrasions on the fingers while accused Krishna

Pal has suffered one lacerated wound on the head and one abrasion on the

left knee and accused Ghasita has suffered one incised wound on the

forehead above right eyebrow, one incised wound on the left elbow joint and

one lacerated wound on the head and one contusion on the right forearm.

The injuries no. 1 and 3 of the accused Ghasita are incised wounds and

according to the opinion of the doctor, these injuries have been caused by

sharp-edged weapons.

19.The defence version is that the complainant party tried to forcibly

occupy the land of Hargyan when objected assaulted Hargyan, Krishna Pal,

Topi and Ghasita with lathi and tabal.This defence version also gets support

from the medical evidence on the record. Besides the three accused persons,

Hargyan also has visible injuries. According to his medical examination

report Ex.Kha-2 five visible injuries one abrasion on the left wrist, one

lacerated wound on the middle finger, two abrasions on the fingers and

tender swelling on top of the left shoulder were found on the body of

Hargyan and in the opinion of the doctor the duration of injuries was fresh.

Injury no. 5 was kept under observation and X-Ray was advised. According

to the X-Ray report Ex. Kha-6 fracture of clavicle bone was detected. It is

also pertinent to mention that Hargyan was taken for medical examination

by the police constable Rohtas Singh along with the other injured accused

persons and it is mentioned in the G.D. No. 28, of 10.03.1980 at 13.00 p.m.

He was medically examined along with injured accused persons by the same

doctor at 2 P.M. and his injuries have been found fresh in duration which

corresponds to the time of occurrence. So from the medical evidence on

record, it stands proved that Hargyan has suffered injuries at the time of

occurrence. The prosecution has failed to give any explanation of the

injuries of Hargyan. The prosecution witnesses have simply denied the

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presence of Hargyan on the spot but the medical evidence supports the

defence version that Hargyan was very much present on the spot and

suffered injuries in this incident.

The learned trial Court has held that Hargyan was not a participant in

this marpit. The learned trial Court has observed that “Although the accused

are not required to prove their own case to the hilt in the present case the

absence of F.I.R. lodged by the accused and absence of Hargyan from

witness-box clearly show that accused have not come with clean hands and

they do not wanted to assert and bring true facts before the Court. It cannot

be said that the report of the complainant was written ante time because

there is no evidence that accused reached the police station before 1.30 p.m..

If Hargyan had received injuries in this occurrence he could state this fact

before the Investigating Officer when the accused persons were arrested.

I’m not supported by any circumstances or evidence on the file to say that

there was any other motive for the prosecution not to name Hargyan

amongst the accused. The only inference which can be drawn is that

Hargyan was not a participant in this marpit. The defence has not shown any

reason as to why Hargyan himself did not come in the witness box.” The

aforesaid observations of the learned trial Court are against evidence on

record and unsustainable. The defence version is that after the incident the

injured accused along with Krishna Pal and Hargyan have gone to police

station to lodge the report but there report was not registered and they were

detained at the police station. This defence version also stands proved from

the circumstantial evidence on record. According to the prosecution, on

search of the houses of the accused a blood-stained lathi from the house of

accused Mahabir and a blood-stained tabbal from the house of the accused

Daulat were recovered by the Investigating Officer B.M. Mishra S.O..

During this search none of the accused were present. The Investigating

Officer has searched the houses in their absence while it is also the

prosecution version that Investigating Officer B.M. Mishra S.O. after

instructing S.I. Shyam Dhan to conduct inquest proceedings and recording

statement of Jagmohan came back to police out post Morna and from there

proceeded to place of occurrence. Investigating Officer in his statement has

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said that thereafter he conducted a raid on the houses of the accused persons

and arrested all the six accused from their houses and sent them to police

station through S.I. Surendra Singh. Witness has further said that thereafter

he made a search of the houses of the accused persons. It was unnatural on

the part of the Investigating Officer not to search the houses of accused at

the time of their arrest in their presence. The natural conduct should be that

if the accused were arrested from their houses, search should have been

made at that very moment but contrary to it the search has been made in

absence of the accused persons. This conduct of the Investigating Officer is

highly unnatural and improbable and clearly indicates that accused were not

arrested from their houses as stated by him. Further the occurrence has taken

place at 9 a.m. while the entry of accused at police station has been

registered in the G.D. at 13.00 p.m. after four hours of the incident. One

person has lost his life in the incident and the accused persons were

conscious of the aforesaid fact. They were also injured in the incident. So it

is highly improbable that in injured condition they should have remained in

their houses waiting for the police to arrive and arrest them. The G.D. entry

also discloses the presence of Hargyan at the police station. Hargyan was

neither named in the F.I.R. nor was an accused in the case. Why he reached

the police station has not been made clear by the prosecution. The above

circumstances clearly establishes that the accused after the incident went to

the police station with Hargyan in injured condition to lodge the report but

they were detained at the police station and after lodging of the F.I.R. of the

complainant their presence at police station was shown in the G.D. at serial

no. 28 dated 10.03.1980 at 13.00 p.m.. In the aforesaid circumstance there is

a probability that F.I.R. of this case may be ante timed. The learned trial

Court has lost the sight of the circumstantial evidence and its findings in this

regard are against the evidence on record and perverse.

20.From the evidence on record it is proved that accused Topi, Krishna

Pal and Ghasita have suffered injuries. Accused Ghasita has also suffered

injuries of sharp-edged weapon. Hargyan has also suffered injuries in this

incident and one of his injuries is grievous in nature. So from the evidence

on record it is proved that it was the complainant party who started the

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assault. They used lathi and tabbal in the assault causing injuries on three

accused persons and Hargyan. Some of the injuries are on the vital part of

the body and one of the injuries of Hargyan is grievous in nature.

21.Section 100 of I.P.C. provides for the right of private defence of the

body and is as follows:-

“100. When the right of private defence of the body extends to causing

death.—The right of private defence of the body extends, under the

restrictions mentioned in the last preceding section, to the voluntary

causing of death or of any other harm to the assailant, if the offence

which occasions the exercise of the right be of any of the descriptions

hereinafter enumerated, namely:—

(First)— Such an assault as may reasonably cause the apprehension that

death will otherwise be the consequence of such assault;

(Secondly)- Such an assault as may reasonably cause the apprehension

that grievous hurt will otherwise be the consequence of such assault;”

In Satya Narain vs State Of Rajasthan (1997) 11 SCC 83, it has been

held that “having received injuries on their heads on account of the assault

made by the deceased, the accused persons were well within their right to

cause such injuries which were likely to cause the death of the deceased.

In Jai Dev vs The State Of Punjab AIR 1963 SC 612, the Hon’ble

Apex Court has observed thus”

“There can be no doubt that in judging the conduct of a person who

proves that he had a right of private defence, allowance has necessarily to

be made for his feelings at the relevant time. He is faced with an assault

which causes a reasonable apprehension of death or grievous hurt and

that inevitably creates in his mind some excitement and confusion. At such

a moment, the uppermost feeling in his mind would be to ward off the

danger and to save himself or his property, and so, he would naturally be

anxious to strike a decisive blow in exercise of his right. It is no doubt true

that in striking a decisive blow, he must not use more force than appears

to be reasonably necessary. But in dealing with the question as to whether

more force is used than is necessary or than was justified by the prevailing

circumstances, it would be inappropriate to adopt tests of detached

objectivity which would be so natural in a court room, for instance, long

after the incident has taken place. That is why in some judicial decisions it

has been observed that the means which a threatened person adopts of the

force which be uses should not be weighed in golden scales. To begin with,

the person exercising a right of private defence must consider whether the

threat to his person or his property is real and immediate. If he reaches

the conclusion reasonably that the threat is immediate and real, he is

entitled to exercise his right………………….. The law of private defence

does not require that the person assaulted or facing an apprehension of an

assault must run away for safety. It entitles him to defend himself and law

gives him the right to secure his victory over his assailant by using the

necessary force. ”

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22.Applying the aforesaid law and legal preposition on the facts of the

present case, it is quite clear that complainant party was forcibly trying to

occupy the disputed land and when objected they started to assault,

Complainant party and in that assault apart from lathi, sharp-edged weapon

was also used causing injuries on three accused persons namely Krishna Pal,

Ghasita and Topia and a non accused Hargyan. In this assault accused have

suffered some injuries on the vital part of their body and Hargyan has

suffered a grievous injury. So accused were within their right of private

defence of person and injuries inflicted on Harnam is in the exercise of their

right of private defence. In the circumstance of the case it is also clear that

there was apprehension that the death otherwise will be a consequence of

such assault and grievous injury was inflicted on one of the person from the

accused side, so Section 100 of I.P.C. is fully applicable on the facts of the

present case and the right of private defence of person extends to causing

death.

23.The observation of the learned trial Court that the accused have not

come with clean hand and they do not want to assert and bring the true facts

before the Court are also not just and proper. From the material on record, it

appears that it is the prosecution which has not come with clean hands and

has not put the correct facts before the Court. The prosecution has denied the

presence of Hargyan at the time of occurrence which stands proved from the

evidence on record. The prosecution has also failed to explain the incised

wound caused on the body of accused Ghasita as prosecution has put the

case that at the time of occurrence Harnam was holding a lathi and

Jagmohan picked a lathi from nearby during the course of incident. While

from the evidence on record it is proved that sharp-edged weapon was also

used from the accused side. The manner of arrest as shown by the

prosecution also stands belied from the material on record and it is also

proved that accused were not arrested from their houses as alleged by the

prosecution and there is probability that F.I.R. is ante timed.

24.From the above discussions, it is clear that learned trial Court has

failed to properly appreciate the evidence on record and findings recorded by

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it that the complainant party has the right of private defence of property and

accused have no right of private defence of person is against the evidence on

record and perverse, erroneous and not sustainable in the law. The learned

trial Court has committed error in holding accused guilty for charges under

Section 148 and 302 read with Section 149 I.P.C.. From the evidence on

record it is clear that prosecution has failed to prove its case and accused are

entitled for acquittal. The criminal appeal is liable to be allowed.

25.The criminal appeal is allowed.

26.The appellants no.3 to 6- Daulat, Topi, Ghasita and Dharma have died

during the pendency of the appeal and appeal on their behalf has abated.

The appellant nos. 1 & 2- Mahabir, Krishna Pal are alive. They are on

bail. They are acquitted from the charges under Section 148 and 302 read

with Section 149 I.P.C.. Their bail bonds and sureties bonds stand cancelled.

They need not surrender.

27.Lower court record along with copy of the judgment be transmitted

immediately to the trial Court.

Order Date :- 29.10.2021

Krishna*

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