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PETITIONER:

STATE OF RAJASTHAN ETC., GOKULA AND ANOTHER

Vs.

RESPONDENT:

RAM BHAROSI & ORS., STATE OF RAJASTHAN

DATE OF JUDGMENT: 12/08/1998

BENCH:

M.K. MUKHERJEE, D.P. WADHWA

ACT:

HEADNOTE:

JUDGMENT:

THE 12TH DAY OF AUGUST, 1998

present:

Hon'ble Mr. Justice M.K.Mukherjee

Hon'ble Mr. Justice D.P. Wadhwa

Aruneshwar Gupta and Ms. Reena Bagga, Advs. for the

appellants

Ashok K.Mahajan, Adv. for the Respondents

J U D G M E N T

The following Judgment of the Court was delivered:

WITH

CRIMINAL MISCELLANEOUS PETITION NO. 440/98

IN

CRIMINAL APPEAL NO. 808 PF 1998

----------------------------------------

(Arising out of SLP (CRL.) No. 2625 of 1998)

D.P.Wadhwa J.

We condone delay in SLP (Crl.) No.-----of 1998 and

grant leave to appeal.

We heard both the appeals together.

State of Rajasthan is aggrieved by the judgment dated

May 1, 1996 of the Division Bench of the Rajasthan High

Court (Jaipur Bench) for two reasons: (1) acquitting Natthi,

Karan Singh and Ram Bharosi of offences under Section

302/149, 149 and 447 Indian Penal Code (IPC for short)

though maintaining their conviction for offence under

Section 323 IPC but reducing their sentence to the rigorous

imprisonment already under gone by them; and (2) acquitting

Makhan and Gokula of charges under Sections 302, 148, 447

and 323 IPC and instead convicting each of them for offence

under Section 307 IPC and sentencing them to undergo

rigorous imprisonment for seven years and to a fine of

Rs.2000/- and in default to undergo further rigorous

imprisonment for six months. Gokula and Makhan have appealed

against the same very judgment against their conviction and

sentence.

Additional Sessions Judge, Bayana (Bharatpur), who

tried eight persons, by judgment dated June 18, 1994

convicted makhan and Gokula under Section 302 IPC and

Natthi, Karan Singh and Ram Bharosi under Sections 302/149

IPC and sentenced all five of them to undergo rigorous

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imprisonment for life and fine of Rs.500/- each and in

default of payment of fine to undergo further rigorous

imprisonment for six months. All the five accused were also

convicted for offences under Sections 148, 447 and 323 IPC

and each of them separately sentenced to undergo rigorous

imprisonment respectively for one year, six months and six

months. Three remaining accused, namely, Meera, Phoolan Dei

and Somoti were acquitted. It was against their conviction

and sentence that the five accused filed appeals in the High

Court which by impugned judgment reversed the convictions

and sentences passed by the learned Additional Sessions

Judge and as aforementioned. We may also note that the

police had also submitted chalans for offences under

Sections 3/25 Arms Act, 1959. At the end of the trial,

however, it was found that no charge had been framed against

accused under these offences and consequently there could

not be any conviction against any of the accused.

The incident out of which these proceedings arose

occurred on August 6, 1992 around 3.00 p.m. The dispute

related to the ownership and possession of a piece of

agricultural land situated in village Milsuma, falling under

the jurisdiction of Roopwas Police Station. Deceased Shiv

Ram along with his nephew Vijay Kumar alias Neta had gone

towards the land on a tractor. He found that all the eight

accused were ploughing their (Shiv Ram's family) millet

crops which they had sown a month or so earlier. When

deceased Shiv Ram questioned the accused as to why they were

ploughing the filed belonging to their family he was fired

upon, given lathi blows and stones were hurled at him. On

August 8, 1992 at about 4.25 p.m. Shiv Ram died in the

hospital on account of injuries suffered by hi. Vijay Kumar

in the process also suffered minor injuries. First

Information Report of the incident was lodged by Narender

Singh, brother of deceased Shiv Ram on August 7, 1992 at

7.00 p.m. His explanation for delay in recording FIR has

been accepted by both the Sessions Court and the High Court.

It was that he had gone to Bharatpur and returned to his

village during the night of August 6/7, 1992 at 2.00 a.m.

when he was told about the incident and the fact that Shiv

Ram, who had suffered injuries, was taken to hospital at

Bharatpur. Narender Singh rushed to Bharatpur where

condition of Shiv Ram was serious and on the advice of the

doctors Shiv Ram was taken to the hospital in Agra where be

succumbed to his injuries. Narender Singh in his report

recorded as under :-

"My father has five Bighas of

(agriculture) Patia Chock land at

Milsuma under his possession and

Khatedari in which we sowed millet

and yesterday i.e. on 6.8.1992 at

2.00-3.00 P.M. my younger brother

Shivram and my son Ajay Kumar alias

Neta hereinafter referred to as

Vijay Kumar alias Neta went to see

the fields where Natthi, Gokula,

Karan Singh, Ram Bharosi, sons of

Tunda Makhan S/o Natthi, by caste

Gaderia R/o Nagla Heas Mauza

Milsama, accompanied by a girl and

two women were found spoiling our

field in which we had sown millet.

Who Shivram admonished them, Makhan

and Gokula started to shower

bullets, in the result of which

Shivram got hurt in various places.

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As his condition was serious, he

was referred to Agra hospital from

Bharatpur. He is still in serious

condition. The women pelted stones

and the rest of the people gave

blown lathies. When I reached the

village at 2 O'clock in the night,

I came to know about this incident.

On hue and cry being raised, Murari

alias Gharua, Ram Sharan S/o Munshi

Thakuar of Milsama came there who

saw the whole incident. Ajay Kumar

has also got injured."

On the basis of the report so lodged by Narender Singh,

a case was firstly registered against the accused for

offence under Section 307 IPC and other sections and after

Shiv Ram expired Section 302 IPC was added in the case.

Accused were arrested on various dates and recoveries

effected. After the completion of the investigation

'challan' was filed against the accused in the court and

they were put on trial. Apart from the testimony of doctors,

investigating officers, 'halka' patwari there were three eye

witnesses, namely. Murari, Ram Sharan and Vijay Kumar whose

statements were recorded. Ram Bharosi accused appeared in

his defence under Section 315 of the Criminal Procedure

Code. Accused Gokula, Ram Bharosi, Natthi and Karan Singh

are brothers while accused Makhan is son of Natthi. Their

defence was that they were in possession and cultivation of

the land and complainant partly wanted to usurp their land

and fabricated a false case against them. Ram Bharosi in his

statement before the court said that the land was entered in

the name of his father in the revenue record and after his

death it was mutated in the names of his sons Natthi,

Gokula, Karan Singh and Ram Bharosi. The mutation itself was

attested by Kishan Singh Sarpanch, father of the deceased

Shiv Ram. Ram Bharosi said that Kishan Singh had obtained a

decree by playing fraud upon court of the Assistant

Collector, Bayana in January 1987 which decree was

challenged in a civil suit filed in the Court of Munsif,

Bayana by Ram Bharosi and his brothers. Ram Bharosi produced

a certified copy of the plaint in that suit wherein

allegations were made that Kishan Singh in collusion with

the process server obtained a forged report of service of

summons and obtained ex-parte decree. After Ram Bharosi and

his brothers came to know of the ex-parte decree they

instituted a civil suit against Kishan Singh in July, 1987

wherein the court ordered maintenance of status quo. That

order was still subsisting on the date of the incident. The

order of mutation in the names of Ram Bharosi and his

brothers was also filed which is dated February 23, 1975,

which showed that the land was in possession of these

persons. On this basis High Court concluded that Kishan

Singh being Sarpanch took undue advantage of his position

and was successful in making changes in revenue record and

getting mutation of land in his name on account of the ex-

parte decree which was under challenge and there was an

order of maintenance of status quo. According to the High

Court it were the accused who were in possession of the land

and were ploughing the same on the date of occurrence and

that the complainant party was the aggressor. High Court

said the trial court erred in holding that it was the

complainant party which was in possession. Judgement of the

High Court does not at all refer to the evidence produced by

the prosecution on the basis of which the complainant patty

claimed ownership and possession. It would, therefore,

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appear that the appreciation of the evidence on the question

of the possession was one sided. High Court was not

examining the conduct of Kishan Singh. Admittedly on the

basis of the ex-parte decree mutation of the land was

entered in the name of Kishan Singh. Revenue records of

Jamabandi and Khasra Girdavari showed that it was Kishan

Singh who was in possession of the land and was cultivating

the same. High Court has not referred to the finding of the

trial court that one month before the date of the incident

the complainant party had sown millet on the land which was

growing at the time the accused were ploughing the field. On

one hand there were documents from the revenue records of

the village filed by the prosecution which showed possession

of the complainant party on the date of the incident and

there was other set of revenue record filed by the accused

which showed that as far back in 1975 it were the accused

who were in possession of the land. We have not understood

the logic of the High Court judgment in not considering the

evidence filed by the prosecution as to the possession of

the land by the complainant party. On the basis of the

finding that it was the complainant party which was the

aggressor High Court said that the accused could not be held

quilty for committing offences under Section 148, 149 and

447 IPC and that neither they were sharing common intention

nor were they members of unlawful assembly at the relevant

time and, therefore, each of the accused could be held

responsible for his individual act. High Court said that

there were no reliable evidence on record which proved

whether the fatal injury on the neck of the deceased Shiv

Ram was caused by Makhan or Gokula and that in the absence

of the evidence to establish that their common intention was

to cause death it would appear that they had common

intention of causing injuries which could be dangerous to

life and each of them would be quilty of the offence under

Section 307 IPC. Then the High Court examined the charge

under Section 323 IPC against accused Natthi, Karan Singh

and Ram Bharosi. It examined the statements of the eye

witnesses Murari, Vijay and Ram Sharan and concluded that

there was no reason to disbelieve these witnesses that

Natthi, Karan Singh and Ram Bharosi did cause simple

injuries on the person of deceased Shiv Ram and Vijay Singh.

High Court did accept the version of the eye witnesses and

the occurrence as it took place. To that extent the

prosecutions's case was accepted. Finally the High Court

said: "the upshot of the above discussion is that appellant

Makhan and Gokula are guilty of committing offence under

section 307 IPC and the appellants Natthi, Karan Singh and

Ram Bharosi are guilty of committing offence under section

323 IPC"

To us the whole discussion in the judgment of the High

Court appears to be rather inexplicable.

About the incident as it happened and as was projected

by the prosecution have been accepted by both the trial

court and the High Court. Deceased Shiv Ram suffered gun

shot injuries in his face at the hands of Makhan and Gokula.

It were these gun shot injuries to which Shiv Ram succumbed

and sufficient in the ordinary course of nature to cause

death. Vijay Kumar also suffered simple injuries from blunt

weapon. So did Shiv Ram also suffer both simple and grievous

injuries caused by lathi blows given by Natthi, Karan Singh

and Ram Bharosi and allegedly by pelting of stones. As noted

above, recoveries of fire arms and lathis were effected on

the basis of statements recorded under Section 27 of the

Evidence Act. According to the report of the Forensic

Science Laboratory (FSL) firing was made from a fire arm so

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recovered though it was not possible to determine the time

of firing.

In our view High Court was not right in over-turning

the finding of the trial court without proper consideration

of evidence on record that it was the complainant party

which was in possession of the land on the date of the

incident and that the accused trespassed into that land

fully armed with fire arms and lathis with the object of

killing any one who would obstruct them in their design of

taking possession of the land. In such circumstances the

defence put forward by the accused that they were acting

under the right of self defence cannot be accepted. The

accused party was full armed. When Shiv Ram and Vijay Kumar

went to the land, they were unarmed. They found the accused

were already ploughing the land. When Shiv Ram questioned

them as to what they were doing he was fired upon by Makhan

and Gokula and other accused showered lathi blows on him and

on Vijay Kumar.

On the plea of right of private defence advanced by the

accused we may refer to the provisions of Section 97 and 103

IPC. Section 97 deals with right of private defence of the

body and of property and Section 103 prescribes when the

right of private defence of property extends to causing

death. These two section are as under :-

"97. Right of private defence of

the body and of property.- 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 movable or immovable, of

himself or of any other person

against any act which is an offence

falling under the definition of

theft, robbery mischief or criminal

trespass, or which is an attempt to

commit theft, robbery, mischief or

criminal trespass."

"103.- When the right of private

defence of property extends to

causing death.- The right of

private defence of property

extends, under the restrictions

mentioned in Section 99, to the

voluntary causing of death or of

any other harm to the wrong-doer,

if the offence, the committing of

which, or the attempting to commit

which, occasions the exercise of

the right, be an offence of any the

descriptions hereinafter

enumerated, namely:-

First.- Robbery;

Secondly.- House-breaking by

night;

Thirdly.- Mischief by fire

committed on any building, tent or

vessel, which building, tent or

vessel is used as a human dwelling,

or as a place for the custody of

property;

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Fourthly.- Theft, mischief or

house-trespass, under such

circumstances as may reasonable

cause apprehension that death or

grievous hurt will be the

consequence, if such right of

private defence is not exercised."

Though there would be right of private defence under

Section 97 IPC when offence of criminal trespass or

attempting criminal trespass is committed, under Section 103

IPC it is only in the case of house trespass that right of

private defence can extend to causing death. That is not he

case here. On the assumption that it was the accused party

which was in possession of the land the accused party which

was in possession of the land the complainant party could

not have said to have committed or attempted to have

committed offence of criminal trespass. Both Shiv Ram and

Vijay Kumar were unarmed. High Court has not reached any

finding on the assumption, which we are drawing, if the

complainant party could be said to have committed or even

attempted to have committed criminal trespass. Section 441

IPC defines criminal trespass and is as under:-

"441. Criminal trespass.- 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"."

There is nothing to show that Shiv Ram and Vijay Kumar

entered upon the land in question with the intent to commit

an offence or to intimidate, insult or annoy the accused

party.

It was then submitted before us that in nay case in

could a case of culpable homicide and not murder falling

under Section 300 IPC. Explanation (2) of Section 300 is as

under:-

"Explanation 2.- Culpable homicide

is not murder if the offender, in

the exercise in good, faith of the

right of private defence of person

or property, exceeds the power

given to him by law and causes the

death of the person against whom he

is exercising such right of defence

without premeditation, and without

any intention of doing more harm

than is necessary for the purpose

of such defence."

In our opinion this would not apply as form the

findings on record it is clear that it was not a case where

the accuses were exercising right of private defence without

premeditation, and without any intention of doing more harm

than was necessary for the purpose of self-defence. The

accused were there fully armed with premeditation to cause

death and it could not be said that they did not have the

intention of doing more harm than was necessary for the

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purpose of private defence. Clearly use of deadly force was

not justified merely to expel Shiv Ram and Vijay Kumar,

alleged trespassers. It was nowhere the case of the defence

that there was no other way of getting them out of the land.

The occasion certainly did not warrant any action of self-

defence.

In the case of Rajinder v. State of Haryana (1995 5 SCC

187) where one of us (Mukherjee,J.) was a party this Court

was considering the issue of right of private defence

available to accused under the provisions of the Indian

Penal Code. The court said that the fascicle of Sections 96

to 106 IPC 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. In that

case after examining the record that Court was of the view

that the only legitimate and reasonable inference that can

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

complainant party to disturb such cultivation and meet any

eventuality. After referring to the provisions of various

Sections aforementioned, this Court observed as under :-

"It is evident from the above

provision that unauthorised entry

into or upon property in the

possession of another or unlawfully

remaining there after lawful entry

can answer the definition of

criminal trespass it, and only if,

such entry can answer the

definition of criminal trespass if,

and only it, such entry or unlawful

remaining is with the intent to

commit an offence or to intimidate,

insult or annoy the person in

possession 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 an

intention 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

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

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only gave 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 to private defence

of person.

We hasten to add, that even if we

had found that the complainant

party had criminally trespassed

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 IPC, for Section

104 IPC 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 IPC

has no manner of application here

as the attack by the accused party

was premeditated and with an

intention of doing more harm than

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 ourselves to

set aside the convictions for the

minor offences only, but then that

would have been, needless to say, a

poor solace to the appellants."

State of law is explicit. In this view of the matter

the High Court was not right in its conclusion. The judgment

of the High Court cannot be sustained either in law or on

the facts of the case. We, therefore, allow the Criminal

Appeal filed by the State, set aside the judgment of the

High Court and restore that of the trail court. The result

is that Makhan and Gokula are convicted under Section 302

IPC and each of them sentenced to undergo imprisonment for

life and a fine of Rs.500/- and in default of payment of

fine to undergo further rigorous imprisonment for six

months. Natthi, Karan Singh and Ram Bharosi are convicted

for offence under Section 302/149 IPC and are sentenced to

imprisonment for life and a fine Rs.500/- each and in

default of payment of fine to undergo further rigorous

imprisonment for six months. All the accuses respondents,

namely, Gokula, Makhan, Natthi, Karan Singh and Ram Bharosi

are further convicted for offences under Sections 148, 447

and 323 IPC and sentenced to undergo rigorous imprisonment

for one year, six months and six months respectively. The

substantive sentences shall run concurrently. Bail bonds of

Makhan and Gokula are cancelled. They shall be taken into

custody forthwith. All the five accused-respondents shall

undergo their respective sentences. The appeal, filed by

Makhan and Gokula is dismissed.