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PETITIONER:

RAJINDER & ORS.

Vs.

RESPONDENT:

STATE OF HARYANA

DATE OF JUDGMENT12/07/1995

BENCH:

MUKHERJEE M.K. (J)

BENCH:

MUKHERJEE M.K. (J)

ANAND, A.S. (J)

CITATION:

1995 SCC (5) 187 JT 1995 (5) 272

1995 SCALE (4)379

ACT:

HEADNOTE:

JUDGMENT:

THE 12TH DAY OF JULY 1995

Present:-

Hon'ble Dr.Justice A.S Anand

Hon'ble Mr.Justice M.K.Mukherjee

Mr.R.K .Jain, Sr.Adv. and mr.Ravinder Bana, Adv. with him

for the Appellants.

Mr.D.B. Vohra, Mr. K.C.Bajaj,Ms. Indu malhotra, Advs. for

the respondent.

Mr.R.L.Kohli,Sr.Adv.Mrs.Rani Chhabra, Adv. with him for the

complainant.

J U D G M E N T

The following Judgement of the court was delivered:

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.125 OF 1968

Rajinder & Ors. .....appellants

Versus

State of Haryana .....Respondent

J U D G M E N T

M.K. MUKHERJEE. J.

The eighteen appellants herein along with ten others

were indicated for an incident that took place on november

17 1985 in village Lawa Khurd within the Police station of

Bahadurgarh in which three persons were killed and several

injured. Against one of them a charge under Section 6 of the

Terrorist and Distrubtive Activities (Prevention) Act, 1985

(Act for short) read with sections 25 and 27 of the Arms

Act, 1959 was also framed and therefore they were tried by a

Designated Court constituted under Section 9 of the Act. on

conclusion of the trial, the Court, while recording an order

of acquittal against ten co-accused in respect of all the

charges levelled against them, convicted the appellants

under Sections 148, 302/149 (three counts),

326/149.325/149,324/149 and 323/149 of the Indian Penal code

(I.P.C.for short). Besides, two of the appellants were

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convicted under Section 307 I.P.C.(two counts) and the

remaining sixteen were convicted for the same offences with

the aid of Section 149 I.P.C. for the convictions so

recorded the appellants were sentenced to different terms of

imprisonment, including life. The above order of conviction

and sentence is under challenge in this appeal filed under

Section 16 of the Act.

The prosecution case as disclosed by the evidence led

at the trial is as under; One Prem Raj was the owner of 19

killas of land in village Lawa khurd. He died in May, 1982

leaving behind a will whereby he had bequeathed that land to

his only son Shri Krishan. Consequent upon Shri Krishan's

death in April, 1983 his wife Sm.Krishna (PW17) became the

owner thereof. While in possession of the land she entered

into an agreement with mange Ram (PW19) on November 4,1985

for its sale for a total consideration of Rs.2,00,000/-

and,on receipt of a sum of Rs.50,000/- out of the said

amount at the time of execution of the deed of agreement,

handed over the possession to Mange Ram. On november

12,1985, the appellant Rajinder singh, claiming himself to

be one of the owners of the said land (hereinafter refered

to as disputed land'), as an heir of Prem Raj, and in

possession thereof, lodged a complaint with the police

alleging that Mange Ram and his men had criminally

trespassed therein and cestroyed the crops he had grown

thereon. On that report Bahadurgarh Police Station

registered a case being No. 532 dated 12.11.1985 against

Mange Ram and others put it ultimately ended in their

discharge as the police found, on investigation, the

accusation to be false.

The prosecution version of the incident that took place

on November 17,1985 is that at or about 10 A.M.when

Sm.Krishan (P.W.13), niece of Mange Ram. Her father Ran

Singh (deceased),her uncles Rattan Singh (deceased), and

Dhan Singh, her cousin Satabir (deceased), her sister Ms.

Kamlesh (P.W.14). her brother Balbir Singh (P.W.15) and her

sister - in Law Sm.Rajo (P.W.16) and Sm.Ramesh were

cultivating their ancestral land, which is at a distance of

one Killa from the disputed land, Malak ram and Ved Prakash

(two of the appellants) came there (the disputed land) with

two camel- ploughs. A few minutes thereafter the other

accused persons came there in three tempos and one tractor

armed with various weapons. Reaching there they asked Ved

Prakash and Malak Ram as to why they had not started

ploughing. On being so encouraged when they started

ploughing the disputed land, Sm.Krishna along with her eight

companions went there and implored the accused not to plough

as that land had been purchased and ploughed by them. then

Ram Karan (since acouitted) instigated the other accused to

kill them. Immediately thereupon, the appellants Bhup Singh

and Ishwar. Who were two of the tempo drivers started their

tempos and dashed against Rattan Singh, Ran Singh, Satbir

Sing and Sm. Kamlesh as a result of which they fell down.

Then the other accused persons started hitting them with

jailis, lathis, balams and pharsas as a result of which

Rattan Singh, Ram Singh and satbir Singh fell down dead at

the spot while others sustained injuries - some of them

grievous. All the appellants then left the place leaving

behind two tempos and the camel ploughs.

Sm. Krishna who had also sustained some injuries at the

hands of the miscreants rushed to her house and narrated the

incident to Mange Ram. Both of them then left for the Police

Station to lodge an information about the incident, when

they arrived at the local bus stand for that purpose, they

met Police Inspector Rattan singh (PW22), who along with

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other police personal was coming to their village in a jeep

for investigating into the case lodged on the information of

appellant Ranjinder Singh on 12.11.1985.P.W22 recorded the

statement of Sm.Krishna at the bus stand and sent it to the

police station through Constable Rambhagat, who was

accompanying him, for registration of a case. he then

proceeded to the disputed land along with Sm.Krishna and

Mange Ram to take up investigation of the case. Reaching the

spot he recorded the supplementary statement of Sm.Krishna

and sent her for medical examination. He held inquest into

the death of Ran singh and Rattan singh while S.I. Phool

Singh (Pw 21), who was accompanying him, held inquest into

the death of Satbir Singh. Some blood stained earth from

five different spots were seized by him and two tempos, two

camels, two ploughs and some pieces of bricks were taken

possession of. After preparing a site plan and despatching

the dead bodies for post-mortem examination, P.W.22 went to

Medical college hospital, Rohtak where injured Dhan Singh,

Sm.Ramesh, Balbir, Sm. Kamlesh and Sm.Rajo had got

themselves admitted on their own for treatment. There he

recorded the statement of all the injured except Dhan Singh,

as according to the doctor he was not recorded by P.W.22 on

the following day. The accused were arrested on diverse

dates and various weapons were recovered from them. Those

weapons along with the blood stained earth earlier seized

were sent to Forensic Science laboratory(F.S.L) for chemical

examination. After receipt of reports of chemical

examination and post-mortem examination and oncompletion of

investigation P.W.22 submitted charge sheet against the

accused.

The appellants pleaded not guilty to the charges

levelled against them. Their version, as given out by them

in their statements recorded under

Section 313 of the Code of Criminal Procedure and by

Attar Singh (DW15), who claimed to be an eye witness, was

that they were cul;tivating the disputed land for a number

of years. Having learnt a few days before the incident that

Mange Ram was planning to destroy their crops, two of them

personally asked him not to do so. As, Mange Ram refused to

oblige and threatened to cause harm to them, they lodged

complaints against Mange Ram on 6.11.1985 and 11.11.1985 but

no action was taken by the police thereon. Encouraged

thereby,in the night of November 11/12,1985, Mange Ram and

his men uprooted the crops they had sown on the disputed

land a month earlier. For this mischief they again lodged a

complaint against Mange Ramand his men and some of them were

arrested. As regards the incident on november 17, 1985 their

version was that at or about 6 A.M. seven of them- who are

all appellants before us_ went to the disputed land with

camel ploughs and a tempo carrying fertiliser and seeds.

While they were ploughing the land, seven persons, namely,

Ran Singh, Rattan Singh, Dhan Singh, satbir, Sm.Kamlesh, sm.

Rajo and Sm. Ramesh came there carrying lathis and jails.

Ran Singh, father of Sm. Krishna (PW13), trespassed into the

disputed land and shouted that they should be killed and

forcible possession of the land taken. Then satbir shattered

the wind screen of their tempo with a jaili while others

caused hurt to some of them. Finding no other alternative

they exercised their right of private defence of property

and person as a result of which all the seven persons who

had trespassed into the land were injured. The other

appellants however denied their presence at the spot and

contended that they had been falsely implicated. The

appellant, Ishwar put forward a plea of a alibi contending

that he was a conductor of Haryana Roadways and at the time

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of the alleged incident he was on duty in a bus plying from

Delhi to Katra.

In support of their respective cases the prosecution

examined twenty two witnesses and the defence sixteen.

On consideration of the evidence, both oral and

documentary, the trial court held, firstly, that the accused

were in settled possession of the disputed land and not

Sm.Krishana (PW 17) widow of Shri Krishan and, consequently

the question of her delivering possession of that land to

Mange Ram after the execution of the agreement for sale old

not arise. As regards the sequence of events on the fateful

morning the trial court observed that the prosecution

version that on seeing the accused entering into the

disputed land for ploughing, the complainant party came from

their ancestral land and with folded hands requested them to

withdraw therefrom was patently false. With the above

observation, the Court drew the following conclusion:-

<SLS>

"What appears is that in the morning of

17.11.1985. the complainant party

trespassed into this land, and when the

accused party came to know about, they

immediately mounted a full-strength

assault on them to throw them out. I am

aware that this is not the version of

either party. I am also aware of the

dictum that court is not to evolve third

story. But I am also conscious that it

is one of the bounden and sacred duties

of the Court to sift the truth, to

separate the grain from the chaff. And

after giving a serious thought to the

matter on record and the circumstances

emerging therefrom, I have come to the

conclusion recorded above".

<SLE>

The trial court next posed the question as to whether

the complainant party's illegal and unauthorised entry into

the land entitled the accused to cause harm to them - and

particularly to the extent they had caused - and answered

the same with the following words:

<SLS>

"Here, the first thing is the injuries

sustained by theaccused. they have just

been reproduced above in paragraph No.

24. They are eight in number and all are

superficial. As against this, the total

number of injuries found on the

complainant party is sixty - five. It is

true that comparative number of injuries

is not the sole decisive factor, but it

is one of the guiding factors for the

court to determine the extent of right

of self-defence. Another important fact

is the parts of body involved. The

injuries on the deceased were on vital

parts and it has not been disputed that

they were sufficient to cause immediate

death. Indeed, this could not be

disputed, because the deeths occurred at

the spot itself. Thus it is clear that

the accused have committed much more

harm then was necessary."

<SLE>

In recording the above finding the trial Court took

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into consideration the fact that no explanation was forth

coming either from the accused or from D.W.15, as to how the

three victims met with their death. In negativing the plea

of right of the private defence of property and person

raised by the accused the Court lastly observed:

<SLS>

"Furthermore, since the accused were not

present in the fields when the

complainant's party entered there, as

held by me, above, there was no

immediate danger to their person.

Therefore, no right of private defence

of person accrued to them. In any case,

there was no danger of death or grievous

hurt and, therefore, they had no right

to cause the harm which they have caused

to the complainant party. As regards the

right of private defence of property,

the only offence committed by the

complainant party, was that under

Section 447 of the Indian Penal Code,

and that would not give the accused a

right of self-defence to the extent of

causing grevious hurt to death.

Thus the action of the accused party was

neither within the scope of section 100

of the Indian penal Code nor within the

purview of Section 103.

Above all, the accused had time to have

recourse to the protection of public

authorities as well. Therefore, no right

of private defence accrued to the

accused at all even on the holding that

they were in settled possession and the

complainant party had committed trespass

on the morning of 17.11.1985."

<SLE>

In assailing the judgement the learned counsel for the

appellants first submitted that having disbelieved the

prosecution case as to the manner in which the onslaught

originated, the trial Court was not justified in basing the

conviction on a case made out by itself.It was next

contended that the trial Court having disbelieved the

evidence of the four eye-witnesses examined by the

prosecution as against ten of the accused ought not to have

relied upon the self same evidence to convict the

appellants. It was then contended that having regard to the

findings recorded by the trial Court that the accused party

were in settled possesion of the disputed land and that the

complainant party had criminally trespassed thereon and the

uncontroverted evidence on record that four of the accused

sustained injuries in the incident, the trial Court ought to

have held, in view of section 96 of the Indian Penal Code,

that no offence was committed by the accused as they acted

in bonafide exercise of their right of private defence of

property and person. The learned counsel lastly submitted

that even if the entire case of the prosecution was believed

the conviction under section 302 read with 149 I.P.C. could

not be sustained and it was liable to be altered to one

under Section 304 (Part 1) I.P.C as the facts of the case

were squarely covered by exception 2 to section 300 IPC.

In repudiating the above contentions, the learned

counsel appearing on behalf of the respondent- state urged

that the findings of the trial Court, that the accused party

were in settled possession of the disputed land and that the

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complainant party had criminally trespassed therein before

the former's arrival, were, in view of the evidence on

record, patently wrong. He however, urged that the other

findings recorded by the trial Court were fully porne out by

the evidence on record. As regards the contention of the

appellants that they were antitled to an order of acquittal

in view of acquittal of ten others the Counsel urged that

the principle "Falsus in uno, Falsus in omnibus" was not

available in criminal trial. Besides, he submitted, the

reasons which weighed with the trial court for the acquittal

of the ten others were not available to the appellants. He

lastly urged that considering the manner in which the

assault took place and the nature and number of injuries the

accused inflicted on the deceased and other members of the

complainant party Exception 2 to Section 300 of the Indian

Penal Code had no manner of application.

Having carefully considered and assessed the evidence

on record, so far as they relate to the appellants, we are

unable to accept any of the

contentions raised on their behalf even proceeding on the

assumption that the finding of the trial Court that the

accused were in settled possession of the disputed land is

unassailable. Prosecution led evidence through Sm.Krishna

(P.W.13) Sm.Kamlesh (P.W.14), Balbir (P.W.15) and

Sm.Rajo(P.W.16) that in the morning of November 17,1985,when

they along with their other family members namely, Ran

Singh, Dhan singh, Satbir Singh, Balbir singh and Sm. Ramesh

were cultivating their ancestral land, which separated the

disputed land by a killa, accused Ved Prakash and Malak Ram

came there with two camel ploughs. A few minutes thereafter

the other accused came there in three tempos and one tractor

armed with various weapons including pharsas, ballams and

lathis and asked Ved Prakash and Malak Ram as to why they

had not started ploughing the disputed land. At that stage

all the members of the complainant party went to the

disputed land and requested the accused with folded hands to

withdraw from that land as they had purchased the same and

also ploughed it. According to the above four witnesses.

Immediately thereupon on the instigation of Ram Karan (since

acquitted) Bhup and Ishwar (two of the appellants) put into

motion the two tempos, of which they were the drivers and

dashed against some of them felling them down. Then Bhup and

Ishwar stopped their tempos. The accused persons then

started beating the members of the complainant party with

the various weapons they were carrying as a result of which

Ram Singh, Rattan Singh and Satbir Singh fell down dead on

the spot, Dhan Singh, Sm. Rajo and Sm. Kamlesh sustained

grievous injuries including fractures and the other three

sustained minor injuries. Then the accused persons left in

one tempo and a tractor.

The accused in their turn led evidence through D.W.15

Attar Singh to prove that in the morning when he had gone to

plough his land, adjacent to the disputed land, he found

Nafe, Phool Chand, Bhup, Nathu, Mahinder, Surte and Ramesh

(all appellants before us) ploughing the disputed land.

Sometimes thereafter he saw Ran Singh, Rattan singh, Dhan

Singh, Satbir Singh, Sm. Kamlesh, daughter of Dhan singh and

Sm. Ramesh and Sm. Rajo, two daughters-in-law of Dhan Singh

(seven members of the complainant party) coming there.

According to him while the male members were carrying jailis

the ladies were carrying lathis. He next stated that Ran

Singh raised lalkara and then starting beating Mahinder,

Ramesh and Bhup causing injuries on them. Besides, nafe was

also beaten up but the witness could not say who beat him.

Then Rajinder and others picked up jailis and lathis in

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their defence causing injuries to the above mentioned seven

members of the complainant party.

As noticed earlier the trial Court disbelieved both the

versions relating to the genesis of the assault and gave a

version of its own which has already been reproduced. We are

in complete agreement with the learned counsel for the

appellants that the trial Court was not justified in making

out a case of its own, disbelieving and discarding the

respective cases made out by the parties; but then, having

given our anxious consideration to the evidence adduced by

the parties regarding the origin of the incident of that

fateful day, we are of the opinion that the trial Court

ought to have accepted the prosecution version. The trial

Court held that keeping in view the incidents that took

place earlier on November 12 and November 14, 1985 and the

fact that a large number of miscreants came in three tempos

and one tractor armed with deadly weapons for a murderous

assault it would be an insult to common sense to believe the

prosecution story that the nine members of the complainant

party went there with folded hands to persuade them to

withdraw. In the context of the evidence on record we are

constrained to say that the above remark made by the trial

Court is not only uncalled for and unsustainable but

unfortunate. Admittedly only a few days back - on November

12, 1985 to be precise - the appellant Rajinder had lodged a

complaint against some members of the complainant party

including Mange Ram for committing trespass into and

damaging crops of the disputed land and in connection

therewith some of them were arrested. Again on November 14,

1985 Sm Rajo (P.W.16) had lodged an F.I.R. against some of

the accused persons alleging commision of offences under

Section 452 and 323 IPC. The motive for the assault as given

therein was that the complainant party had ploughed the

disputed land. In the context of these facts, which the

trial Court also noticed, it was not likely that the

complainant party would venture to forcibly cultivate the

disputed land immediately thereafter and face another

prosecution. Judged in that light their assertion that at

the material time they were cultivating their ancestral land

does not seem to be improbable more so, when the accused did

not even suggest, much less prove, that they had no such

land near the disputed land.

Besides, the evidence of P.Ws. 13,14,15 and 16 as to

the manner in which the trouble started and the assault took

place is not only cogent and consistent but also stands

corroporated by other materials on the record, which may be

summarised as under:-

i) The accused admitted the presence of seven out of the

nine members of the complanant party (except P.Ws. 13 & 15)

at the time of the incident and of their having sustained

injuries.

ii) Dr. S.K. Bhutani (P.W.2) examined P.W.13 on 17.11.1985

at 1.45 p.m. and found three injuries on her person; one of

which, he opined, could be caused by a pointed weapon and

other two by blunt weapon.

iii) On the same afternoon (17.11.1985) Dr. J.S. Lamba

(P.W.4) examined Dhan Singh, Sm. Ramesh, Sm. Kamlesh

(P.W.14) Sm. Rajo (P.W.16) and Balbir (P.W.15) and found

lacerated injuries on their persons. On X'ray examination

Dhan Singh was found to have sustained compound fractures of

both bones of right forearm and of right humerus and

fracture of left radius; Sm. Kamlesh sustained fracture of

shaft of right femur and Sm. Rajo sustained fracture of left

parietal bone. According to Dr. Lamba injury No. 8 of Dhan

Singh - deformity of right upper limb with angulation -

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could be caused by being hit by a tempo and also by being

run over by it.

iv) Dr. K.K. Chawla (P.W.1) who held the post-mortem

examinations on the three deceased on 18.11.1985 found

fifteen injuries on Satbir, fourteen of which were incised

and/or penetrating woulds on the upper part of the body,

that is chest, neck and head; twenty five injuries on Ran

Singh of which eight were abrasions, two lacerations and the

rest either incised or penetrating wounds and seventeen

injuries on Rattan Singh, most of them incised and

penetrating wounds. In the opinion of Dr. K.K. Chawla the

incised wounds could be caused by pharsa and incised

penetrating wounds by ballams. He further opined that injury

No.17 on the person of Ran Singh could be caused if some

projective portion of the tempo hit the victim on the thigh

and injury No. 16 on the person of Ran Singh and injury No.

14 on the person of Rattan Singh could be caused if a tempo

ran over the victims.

v) P.W.22, the Investigating Officer testified that on

reaching the spot he found two tempos and two camel ploughs

and that later on Rajinder (the appellant) produced

documents of those two tempos.

vi) The evidence of P.W.22 also proves that P.W.13 lodged

her complaint with him with utmost dispatch, in as much as

it was made before him at 12.15 P.M; and that the same was

forwarded to and received by local Magistrate on the self

same day at 3.45 p.m. and

vii) The F.I.R. contains the sub stratum of the prosecution

case as detailed by P.W.13 at the trial.

Pitted against the evidence of the prosecution

witnesses as discussed above is the evidence of Attar Singh

(D.W.15) who gave the defence version of the incident, and

Dr. Ravi Kanta (D.W.1) who examined the appellants nafe,

Ramesh, Mahinder and Bhup Singh and found injuries on their

persons. Though 14 other witnesses were also examined on

behalf of the defence their evidence, however, is not

relevant for our persent purposes. On a careful analysis of

the evidence of D.W.15, which we have detailed earlier, in

the light of other evidence on record we are unable to place

any reliance thereupon. According to D.W.15 when he saw the

accused working in the disputed land there was only one

tempo standing by their side, but then, as noticed earlier,

the evidence of P.W.22 clearly proves that there were two

tempos at the spot and that Rajinder (the appellant)

produced documents of those two tempos. Such presence of two

tempos not only discredits D.W.15 but also makes the version

of the appellants that they came with one tempo which

carried fertilisers untrustworthy. D.W.15 next stated that

the male members of the complainant party were carrying

jailis and the ladies lathis and that Ran Singh had caused

hurt to Mahinder, Ramesh and Bhup. If this part of his

evidence is to be believed Ran Singh must have assaulted

them with jaili, which admittedly is a sharp weapon, but

Dr.Ravi Kanta (D.W.1) opined that all the injuries he found

on their persons were caused by blunt weapons. Then again,

according to D.W.15, after the above named four persons were

injured the accused persons present there took up the jailis

and lathis and beat the seven members of the complainant

party present there to defend themselves, but as noticed

earlier, Dr. Chawla (P.W.1) testified that most of the

injuries found on the persons of the deceased could be

caused by ballams, pharsas and spears. While being cross-

examined he asserted that some of the injuries could not be

caused by jaili or by lathi and they could be caused on

being run over by tempo. The other reason which prompts us

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to discard the evidence of D.W.15 is that he did not give

any explanation whatsoever as to how Ran Singh, Rattan Singh

and Satbir Singh met with their death at the spot. Indeed,

according to him nobody had died on the field even though he

claimed to have left the field after the fight was over.

According to this witness only Ran Singh was lying on the

ground while others were standing. We are in complete

agreement with the trial Court that having regard to the

nature and number of injuries sustained by Rattan Singh and

Satbir it was absurd to claim that he found them standing.

Coming now to the evidence of D.W.1, we find that he

examined the appellants Nafe Singh and Ramesh in the night

of 17.11.1985 at 11.30 p.m. He found two lacerated wounds

and one diffused swelling on the person of Nafe Singh and

two lacerated wounds on the person of Ramesh. His evidence

further discloses that on 21.11.1985 he examined appellant

Rajinder Singh and Bhup Singh and found one liner lacerated

wound on the person of the former and one linear injury and

a scab on the person of Bhup Singh. He testified that the

injuries seen by him on the above two persons were four days

old. In cross- examination D.W.1 admitted that the injuries

found by him on the persons of the above four could be

sustained by fall. He further opined that injuries found by

him on Mahinder and Bhup Singh could be caused in

agricultural pursuits like striking with plough.

From the above discussion the only legitimate and

reasonable inference that can be drawn is that the accused

party had gone to the disputed land with a determination to

cultivate it and, for that purpose, fully prepared to thwart

any attempt made by Mange Ram and his men to disturb such

cultivation and meet any eventuality. As they were about to

cultivate the land the complainant party which was

cultivating their ancestral land nearby, went there and

entreated them to vacate the land claiming to be its owner

and in possession. Immediately thereupon the accused party

launched a murderous attack on the complainant party

resulting in death of three, grievous injuries to three and

simple injuries to other three. In course of that attack

four members of the accused party received some injuries at

the hands of one or other of the accused party received some

injuries at the hands of one or other of the complainant

party (as testified by P.W.14).

Having drawn the above inferences we have now to

ascertain whether the unauthorised entry of the complainant

party in the disputed land, which according to the trial

Court was in settled possession of the accused party legally

entitled the latter to exercise their right of private

defence and, if so, to what extent. The fascicule of

Sections 96 to 106 I.P.C. codify the entire law relating to

right of private defence of person and property including

the extent of and the limitation to exercise of such right.

Section 96 provides that nothing is an offence which is done

in the exercise of the right of private defence and Section

97 which defines the area of such exercise reads as under:

<SLS>

Every person has a right, subject to the

restrictions contained in section 99, to

defend-

First. - His own body, and the body of

any other person against any offence

affecting the human body:

Secondly, - The property, whether

moveable or immoveable, of himself or of

any other other person. against any act

which is an offence falling under the

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definition of theft. robbery, mischief

or criminal trespass, or which is an

attempt to commit theft, robbery,

mischief or criminal trespass.

(emphasis supplied)

<SLE>

On a plain reading of the above section it is patently

clear that the right of private defence, be it to defend

person or property, is available against an offence. To put

it conversely, there is no right of private defence against

any act which is not an offence. In the facts of the instant

case the accused party was entitled, in view of Section 97

and, of course, subject to the limitation of Section 99, to

exercise their right of private defence of property only if

the unauthorised entry of the complainant party in the

disputed land amounted to "criminal trespass", as defined

under Section 441 I.P.C. The said Section reads as follows:

<SLS>

"Whoever enters into or upon property in

the possession of another with intent to

commit an offence or to intimidate.

insult or annoy any person in possession

of such property.

Or having lawfully entered into or upon

such property, unlawfully remains there

with intent thereby to intimidate,

insult or annoy any such person, or with

intent to commit an offence,

is said to commit "criminal trespass".

It is evident from the above provision that

unauthorised entry into or upon property in the possession

of another or uniawfully remaining there after lawful entry

can answer the definition of criminal trespass if, and only

if, such entry or unlawful remaining is with the intent to

commit an offence or to intimidate insult or annoy the

person in possesion of the property. In other words, unless

any of the intentions referred in Section 441 is proved no

offence of criminal trespass can be said to have been

committed. Needless to say, such anintention has to be

gathered from the facts and circumstances of a given case.

Judged in the light of the above principles it cannot be

said that the complainant party committed the offence of

"criminal trespass" for they had unauthorisedly entered into

the disputed land, which was in possession of the accused

party, only to persuade the latter to withdraw thereupon and

not with any intention to commit any offence or to insult,

intimidate or annoy them. Indeed there is not an iota of

material on record to infer any such intention. That

necessarily means that the accused party had no right of

private defence to property entitling them to launch the

murderous attack. On the contrary, such murderous attack not

only gave the complainant party the right to strike back in

self defence but disentitled the accused to even claim the

right of private defence of person.

We hasten to add, that even if we had found that the

complainant party had criminally tresoassed into the land

entitling the accused party to exercise their right of

private defence we would not have been justified in

disturbing the convictions under Section 302 read with

Section 149 I.P.C., for Section 104 I.P.C. expressly

provides that right of private defence against "criminal

trespass" does not extend to the voluntary causing of death

and Exception 2 to Section 300 I.P.C. has no manner of

application here as the attack by the accused party was

premeditated and with an intention of doing more harm than

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was necessary for the purpose of private defence. Which is

evident from the injuries sustained by the three deceased,

both regarding severity and number as compared to those

received by the four accused persons. However, in that case

we might have persuaded purselves to set aside the

convictions for the minor offences only: out then that would

have been, needless to say, a poor solace to the appellants.

As regards the contention raised on behalf of the

appellants that having acouitted some of the accused persons

disbelieving the evidence of the prosecution witnesses the

trial Court ought not to have relied upon the same to

convict them, we can only say that the learned counsel for

the State was fully justified in contending that the maxim

'Falsus in uno, Falsus in omnibus' does not apply to

criminal trials and it is the duty of the Court to disengage

the truth from falsehood instead of taking an easy course of

rejecting the evidence in its entirety solely on the ground

that the same is not acceptable in respect of some of the

accused. On perusal of the impugned judgtment we find that

the trial Court took great pains to consider and discuss the

case of the individual accused including the pleas of alide

raised on behalf of appellant ishwar and others and on a

threadbare discussion thereof found that the participation

of the appellants before us in the incident stood proved

beyond all reasonable doubt, while acquitting others on

grounds which were available to them only. Having carefully

considered the evidence against each of the appellants we do

not find any reason to take a different view from the one

taken by the trial Court so far as the appellants are

concerned except appellant Jai Narain as we feel that the

trial Court having acquitted those whose names old not find

place in the F.I.R. ought to have recorded an order of

acquittal in his favour also as he stood on the same

footing.

In the result we dismiss this appeal of all the

appellants except appellant Jai Narain, whose appeal we

allow. Since all the appellants are on bail, Jai Narain will

stand discharged from his bail bond while others will now

surrender to their bail bonds to serve out the sentences

imposed upon them by the trial Court.