Rajasthan High Court - Jaipur
Kanaram And 8 Ors. vs State Of Rajasthan on 12 December, 1986
Equivalent citations: 1987(1)WLN225
JUDGMENT Farooq Hasan, J.
1. Kanaram, Hanuman, Bhanwar alias Bhura, Jeewan, Gopiram, Ratna Ram, Chhitar, Phula and Mohan, all the appellants in this appeal are aggrieved against the judgment dated 23rd April. 1983, passed by the Sessions Judge, Sikar, whereby they have been convicted and sentenced as under:
Kanaram, Hanuman, Bhanwar Under Section 147, I.P.C. 1 year's RI;
alias Bhura, Gopiram, Ratna
Ram & Mohan
Jeewan, Chhitar & Phula Under Section 148, I.P.C. 1 year's RI;
All the appellants named Under Section 302/149 I.P.C. Life imprisonment with
above fine of Rs. 1,000/- in
default, 6 month's RI;
Under Section 325/149, I.P.C. 3 year's RI with fine of
Rs. 500/- in default, 3
month's RI;
Under Section 323, I.P.C. 6 month's RI.
2. Briefly stated facts of the case are that, on the report of one, Prabhudayal s/o Ramuram which, was lodged on July 19, 1982, at the police station Dantaramgarh (District Sikar, Rajasthan), at about 3 p.m., a case No. 51/82 was registered and the investigation commenced. According to the said report (Ex.P 23), half of the agricultural land bearing khasra No. 1109 situated in the village Nayabas was in possession of the informant Prabhudayal and his brother; and the said land was being cultivated not only by the information but also by his predecessors. It was alleged in the report (Ex.P 23) inter alia that, on July 19, 1982 the informant along with his mother went to the aforesaid field in order to plough it and when he started ploughing it the accused appellants along with certain other persons came on the field and obstructed him; that, the appellants accused and other persons were armed with lathies, Farsi, and axes that, Gopiram (accused) initially obstructed the informant but on his insistence to plough the field, other accused persons also rushed in the field and started beating him (Prabhudayal); that, Smt. Dhapu mother of Prabhudayal was also beaten by the accused appellants; Smt. Dhapu raised hue and cry upon which, the neighbours and persons passing nearby on the way came to their rescue Kajju s/o Mangu, Budha s/o Dhanna, Jeewan s/o Khinva, Dula s/o Lala, Budha s/o Rugnath, Sukha s/o Dalu and Laxman s/o Bheru are alleged to be the persons who had reached at the place of occurrence on hearing the noise and they tried to intervene. The accused persons did not stop beating and also gave beating to the interveners. It is further alleged that the accused appellants Chhitar, Jeewan and Phula gave Farsi blow on the persons of Kajju and Budha, as a result of which, Kajju died instantaneously at the spot and Budha who also sustained injuries, died in the hospital. It is also alleged in the report that prior to this occurrence, the accused-appellants obstructed the informant and his brother from ploughing the field and tried to disturb peaceful possession of the informant and his brother, and for this action of the accused-appellants the informant Prabhudayal and his brother Heera filed a suit for permanent injunction against them where in they (accused) were restrained from interfering in the peaceful possession of the informant and his brother and notice to the accused-appellants to show cause as to why the said injunction may not be made absolute, were issued.
3. After usual investigation, during which certified copies of Khasra Girdawari were submitted for the period from Samvat Year 2013 onwards by the informant to the Investigating Officer a challan was filed against the accused-appellants along with other persons who have subsequently been acquitted by the trial court.
4. The learned Sessions Judge, after holding a regular trial against the accused persons held the appellants guilty of forming an unlawful assembly with common object of causing injuries to Gopi, Dhapu and Prabhudayal so also to cause death of Kajju and Bhudha. The accused-appellants were also held guilty for rioting and they have been convicted under Sections 147 & 148 I.P.C. as aforesaid. In all 13 witnesses were produced by the prosecution in support of the charge framed against the appellants and other accused-persons by the learned Sessions Judge. 55 documents were got exhibited by the prosecution before the trial court. On the basis of the allegations made against the accused persons by the prosecution, the statements of the accused persons were recorded where in all of them denied all the charges levelled against them by the prosecution. Jeewan (appellant) asserted that whole of the land bearing khasra No. 1109 is in their possession, and Prabhudayal (informant) accompanied with Kajju along with others duly armed with deadly weapons went on the aforesaid field in order to dispossess them; that, during that time, the complainant party inflicted injuries on the persons of accused Ratna, Gopi and Bhanwar and others and that, he (Jeewan) along with other accused persons were ploughing their field on the date and at the time of the occurrence. Other accused-appellants in their statement recorded under Section 313 Cr.P.C. averred that they support the statement of the appellant Jeewan. In defence, the appellants got, in all 26 documents exhibited.
5. We have heard Shri Biri Singh on behalf the accused appellants Shri Rizwan Ali learned Public Prosecutor and Shri D.C. Sharma on behalf of the complainant.
6. At the very outset of his arguments, Shri Biri Singh, learned Counsel for the appellants, argued that the land in dispute was never cultivated by the complainant party, none of the prosecution witnesses have stated about actual physical possession of the disputed land on the day of occurrence and prior to if, and that the complainant party was aggressor and they were the persons to start with beating to the appellants with an intention to dispossess the appellants from their peaceful possession over the disputed land. Then, Shri Singh urged that the injuries sustained by the accused has not been explained by the prosecution witnesses and as such, the prosecution story becomes doubtful, the benefit of which should be given to the appellants.
7. Shri Singh further submitted that the prosecution witnesses have made a lot of improvement in their statements before the trial court as would be evident from a reading of their statements given before the police According to Shri Singh, it was alleged in their police statement that Gopiram (appellant) was adopted by Ramuram father of the informant-Prabhudayal because at that time Prabhu Dayal (informant) and his brother-Heera were not born; and that the property of Ramuram was partitioned among them and one third share of the property left by Ramuram came to the share of Gopiram (adopted son of Ramuram) Shri Singh further submitted that at the investigation stage, it was also the case of the prosecution that Prabhudayal and other companions of the prosecution witnesses as well as deceased Kajju & Bhudha were also armed with weapons, like Farsis.
8. Shri Singh then also argued that looking to the facts mentioned by the prosecution witnesses at the stage of investigation, it is abundantly clear that the complainant party called the prosecution witnesses and the deceased, Kajju & Bhudha, in order to get their help to eject the appellants from their field; and in this view of the matter, it is abundantly clear that the complainant party was aggressor and the accused party was having a right of private defence of person and property, both. Shri Singh then asserted that the accused-appellants are entitled to the acquittal. Shri Singh at the end of his arguments argued that the statements of the prosecution witnesses are not believable due to the reason that they have given conflicting version and they have disowned their own version given before the police.
9. Shri D.G. Sharma learned Counsel for the complainant and Shri R. Ali learned Public Prosecutor on the other hand submitted that it has been fully established that half of the disputed land was in peaceful possession of the complainant party and their predecessors, for which he drew our attention to the certified copies of Khasra Girdawari of Samvat Year 2013, onwards. It has been further submitted that merely because the land in dispute is recorded in the Khatedari of Baluram, it does not mean that the land in dispute was not in possession of the complainant party, and in the instant case, the real point to be decided by this Court is as to who were in possession of the land in dispute on the date of occurrence and prior to it.
10. It has been further contended by the prosecution side that the injuries sustained by the accused persons have been fully explained and in the FIR (Ex.P. 23), itself, it has been stated that Gopi, Bhanwar, Hanuman Jeevan, and Ratna (accused-appellants) also sustained injuries. Learned Public Prosecutor then contended that the appellants were restrained not to interfere in peaceful possession of the complainant party, Prabhudayal & Heera over the disputed field by the order of the competent court which has been marked as Ex.P. 25.
11. Lastly, the learned Public Prosecutor submitted that the accused appellant have been rightly convicted and sentenced by the learned Sessions Judge who has given a reasoned and comprehensive decision after discussion and appreciation of the evidence at length.
12. We have given our thoughtful consideration to the rival contentions of the learned Counsel for the parties and have perused the entire record of the case.
13. In the present case, in all eight eye witnesses have been produced by the prosecution, viz., firstly, Lichhman (PW 1) stated that Prabhu (PW 8) and Smt. Dhapu (PW 9) came to his residence and told that accused appellant Kana and Hanuman are not allowing them to plough the field in dispute. Prabhu further suggested that the accused persons should be asked to allow Prabhu to plough the field, upon this, the witness (PW 1) replied that he will talk with the accused persons. The witness (PW 1) further stated that he saw the accused persons along with other persons, (who have been acquitted by the trial court) were going towards their field; Kana was having a Lathi. Jeevan Chhitar & Phula were armed with Farsies, and Mohan with an axe(Kulhari) and that the aforesaid persons went to their field, after half an hour Mangu & Jeeva came to the field of the witness Prabhu and his mother came to them and requested to talk with the accused not to have any quarrel with Prabhu and Dhapu because, Prabhu and Dhapu were apprehending quarrel on the field in case Prabhu & Dhapu ploughed the field. The witness (PW 1) further stated that he along with Jeeva, Mangu & Girdhari went to the field of Budha, and at that time, Prabhu & Dhapu came to the disputed field with plough; when Prabhu started ploughing the field, the accused appellant-Gopi restrained Prabhu and inflicted blow on the leg of Prabhu; after that, all the accused persons came to the field and started beating to Prabhu & his mother; and that Budha, Jeevan and Kajju also reached the place of occurrence from its western side and intervened to save Prabhu & Dhapu, Jeevan s/o Kheenva was having Lathi in his hands. This witness (PW 1) further stated that the accused persons killed Kajju on the spot, and Budha after sustaining injuries was breathing, The witness (PW 1) in his cross-examination stated that he did not know the names of the recorded tenant of the disputed field, Gopi-accused was not adopted by Ramu father of Prabhu, Gopi neither resides in the house of Ramu nor ever cultivated the field of Ramu. The witness (PW 1) admitted that the accused are inimical to the witness, and further admitted the quarrel with the accused appellants and that a cross case about the instant incident is pending against him. The witness further deposed that cross case has been instituted on the report of the accused-appellant Jeevan against him. The witness (PW 1) disowned various portions of the police statement specially that the deceased Kajju & Budha went on the spot duly armed with Farsi. The witness in cross examination further stated that he did not know as to which of the accused inflicted blows on which of the persons. The witness admitted that the accused-appellant katna, Chhitar & Phula so also Gopi sustained injuries in the instant incident and explained that the prosecution witnesses, Jeevan & Prabhu were also having Lathies in their hands and they tried to defect themselves, and in that process, possibly the aforesaid accused appellants sustained injuries.
14. Dula (PW 2) has also given similar statement as was given by Lichhman (PW 1). The witness (PW 2) in his cross-examination admitted enmity with the accused appellants and have stated that half of the disputed land/field was being cultivated by Prabhu and his predecessor since long time. The witness also disowned various parts of his police statement. The witness (PW 2) denied that some of the accused sustained injuries in the incident. The witness (P W 2) admitted that in a cross case instituted on the report of the accused pending, he is also an accused.
15. Girdhari (PW 3) has corroborated the version deposed by Lichhman (PW 1) & Dula (PW 2), but, in his statement, Girdhari (PW 3) has given omnibus Statement with regard to the injuries on the person of the complainant party including the deceased Budha & Kajju. In cross-examination the witness (PW 3) has shown his ignorance about the fact of adoption of the accused-Gopi by Ramu father of Prabhu (informant). The witness (PW 3) has admitted in his cross-examination that litigation is pending in between him and accused-Hanuman for the last 20 years and further admitted that a cross case is pending against him and he has further stated that Prabhu and his predecessor are cultivating the land in dispute for the last so many years. The witness (PW 3) has disowned his various portions of his statement (Ex.P 5.) The witness (PW 3) then stated that he ran away from the place of occurrence just after the deceased Budha & Kajju fell on the ground upon their sustaining injuries.
16. Jeevan (PW 4) s/o Daluram has been produced to prove the possession of the complainant on the disputed field. The witness (PW 4) has stated that Prabhu and his father were cultivating t|e disputed field for years, together, and the western side of the field is being cultivated by the accused-appellant. This witness (PW 4) has also disowned various portions of his police statement.
17. Jeevan (PW 7) s/o Khinva and Jeevan (PW 12) s/o Budha, both have corroborated the version deposed by the aforesaid eye witnesses. The witness (PW 7) deposed to have sustained injuries in this incident, and further deposed that he left the place of occurrence after sustaining the injuries at the hands of the accused persons. The witness (PW 7) has nowhere stated that he had inflicted any blow on the person of the accused-appellants. The witness (PW 7) admitted enmity and pendency of the litigation with the accused, so also a cross case against him. The witness (PW 7) has also disowned portion of his police statement (Ex.D. 7). In cross-examination, he (PW 7) has stated that he did not see any injury on the person of the accused at the place of occurrence and then further stated that he saw the injury on the person of the accused in the hospital.
18. Prabhuram (PW 8) is the informant. He has stated that his mother informed him on 19-7-82 at about 8 a.m. that Hanuman, Kana and others have gone to the disputed field duly armed with Farsies and Lathies in order to beat him (PW 8) in case he goes to the field. The witness (PW 8) then stated that his mother went in the village to inform the villagers so that they (villagers) may go to the field and ask the accused not to have any quarrel; that, his mother returned back at about 11 a.m., then he (PW 8) and his mother Dhapu (PW 9) went to the field for ploughing the same, and started ploughing the field; that, all the accused appellants along with other persons came from their fields to the place of occurrence and they were armed with weapons. The witness (PW 8) then stated that Gopi inflicted blow on his left leg at that time, and Budha & Jeevan told the accused that they should not restrain Prabhuram from ploughing the field. Kajju, Budha & Jeevan tried to intervene in the beating but, all the accused started beating him. The witness further stated that he (PW 8) and Jeevan were having lathis in their hands and both of them came out of the scene of the actual occurrence after saving themselves. All the accused inflicted blows on the person of Budha and Kajju who died on the spot and Budha was breathing on account of sustaining the injuries. According to this witness (PW 8), Lichhman Girdhari, Jeeva, Sukha and Budha s/o Rugnath were witnessing the occurrence at that time. The witness (PW 8) further stated that a revenue suit was filed by him where in temporary injunction against the accused was issued, a copy of which is Ex.P. 25. The witness (PW 8) stated to have filed copy of Khasra Girdawari marked as Ex P. 27, and further stated that on the day of the occurrence, his brother Heera after apprehending breach of peace has gone to the police station to seek security. In cross-examination, the witness (PW 8) stated that the land in dispute is in the khatedari of Balu who is father of the appellant Jeevan, Bhanwar, Gopi, Hanuman and Kana. After the death of Balu, the land in dispute was recorded in Khatedari of his widow Smt. Dhapu and this was done without the knowledge of the witness, stated the witness (PW 8). The witness (PW 8) also disowned the various parts of his police statement (Ex D 8). He further stated that the accused persons did not allow him to cultivate the field in dispute on 17-8-82 and because of this reason, be filed a revenue suit; and that the deceased Kajju and Budha were not having any weapons in their hands at the time of the occurrence but, in the police statement, the witness has stated that the deceased Kajju & Budha were warmed with weapons. This part of his police statement was also disowned by the witness. The witness further stated that it is just possible that the accused also sustained injuries at their hand in the process of defending themselves.
19. From the statement of the witness (PW 8) it is clear that he (PW 8) has not categorically admitted the injuries sustained by some of the accused persons. The witness denied this suggestion that he along with other eye witness and the deceased Budha & Kajju went on the disputed field in order to dispossess the accused. The witness has disowned some parts of the report (Ex.P 23) lodged by him at the police station.
20. Smt. Dhapu (PW 9) mother of the informant Prabhuram (PW 8) has also corroborated the version given by Prabhuram (PW 8). The witness (PW 9) has stated that she sustained injuries. But, it has not been stated by her as to who amongst the accused has inflicted the injuries. She (PW 9) denied this suggestion that accused Gopi was taken in adoption by her husband in Smt. 1998. The witness in her police statement has admitted that Gopi accused who was taken in adoption by her husband but this part of her police statement was disowned by her. In her police statement, the witness (PW 9) has stated that Gopi (accused) was adopted by her husband and Gopi was living in the house of her husband and the land of her husband was partitioned amongst her real son Prabhu. Heera, and adopted son Gopi who obtained his share in the land occupied by her husband. But, these facts are denied by the witness (PW 9) in her cross-examination; and it was admitted during cross-examination that only 20 bighas of the disputed field is in their possession. She stated that they had not gone to the field to plough the same because, they were knowing that the accused are making preparation to fight with them. The witness has disowned various portions of her police statement (Ex.D. 11). She has stated that at the time of the incident, her son Prabhu and Jeevan were having lathis in their hands but, she admitted that in her police statement this fact has not been mentioned. She has further stated that the deceased Budha and Kajju were not having weapons but in her police statement she has stated that the deceased Budha and Kajju were having Farsi at the time of incident. She has stated that Prabhu and Jeevan inflicted 2-3 blows on the person of the accused in the process of defending themselves. She has been confronted with her police statement (Ex D. 11) where in this fact has not been mentioned, and the witness admitted that at the time when her statement was being recorded by the police she did not disclose that the accused also sustained injuries at the hands of Prabhu and Jeevan.
21. Begaram PW 5 is a constable who took 11 sealed packets to the Chemical laboratory for examination Dr. B.K. Soni PW 6 is Radiologist who has stated that in the X-ray plate Ex. P 19 he found fracture on the left forearm of Jeevan s/o Khinva and he prepared a report Ex. P. 21 Dr. L.M. Mishra PW 10 conducted post mortem of the deceased Budha and prepared post mortem report Ex. P. 22 Dr. S.L. Gupta PW 11 conducted post mortem of the deceased Kajju and prepared report Ex. P. 28. He has also prepared medico-legal report of Prabhu, Dhapu, Jeevan s/o Khinva. Dr. Gupta PW 11 has also examined Hanumanram accused, Gopiram accused, Bhauwarlal accused, and Ratnaram accused, and prepared their medico-legal reports Ex. D. 12 to Ex. D 16.
22. Suratsingh PW 13 Investigating Officer has proved various memos and stated that after completion of the investigation of the case," he submitted challan against the accused appellants as well as other persons who have been acquitted by the learned trial court. The witness PW 13 has also proved that site plan Ex. D, 18 prepared in case No. 52/82 registered at the police station on the report by the accused Jeevan s/o Baluram. The witness PW 13 has also admitted that he has filed a charge sheet Ex. D 17 against Prabhu, Jeevan s/o Khinva, Bhagirath, Girdhari, Chhitar Lichhman and Dula.
23. In view of the prosecution evidence and the defence version, as discussed above, it is amply proved that the occurrence took place on 19-7-1982 on the agricultural field bearing Khasra No. 1109 measuring 62 bighas and 19 biswas situated in village Nayabas and that in the said incident Budha s/o Dhanna sustained injuries and died in the hospital, autopsy was conducted by Dr. L.M. Misra PW 10 on 20-7-1982 who found 9 external injuries and two internal injuries on the person of the deceased Budhia Dr. Mishra PW 10 opined that Budha died due to the injuries sustained on the skull bone, fracture and due to the shock on account of laceration on brain. Dr. B.L. Gupta PW 11 conducted post mortem examination on the person of deceased Kajjuram s/o Manguram and found 13 external injuries and when the skull was opened under swelling i.e. injury No. 6, he found number of fractures in the parietal bone, and further found that the durameter was also torn and blood clots were present. In his opinion, the deceased (Kajju) died due to the haemorrhage from multiple injuries and compression of the brain on account of comminuted fracture and haemotorma due the scalp injuries which cumulatively resulted in shock and death. According to Dr. Gupta PW 11, injury No. 6 individually as well as all the injuries together were sufficient in the ordinary course of nature to cause the death of Kajju. Dr. Gupta PW 11 further opined that all the injuries were found of ante mortem in nature, and injuries Nos. 2,3, & 4 were caused by sharp edged weapons likewise by gandasi and Farsi. Looking to the statements of Dr. Mishra PW 10 and Dr. Gupta PW 11, it is abundantly clear that Budha and Kajju's death was homicidal.
24. In view of these circumstances, it is now to be seen as to who can be held responsible for the homicidal death of Budha and Kajju which, we would discuss in later part of our judgment.
25. In the present case, both the parties sustained injuries and the accused appellants have claimed that the entire field bearing khasra No. 1109 was in the khatedari and possession of Balu (since died) 8 years back on the other hand, it is the case of the prosecution that half of the land was in the old possession of Ramu father of the informant Prabhu PW 8 and his brother Heera.
26. Looking to the rival contentions of the parties, the first point which arises for consideration in this appeal is whether the land in dispute was in exclusive possession of the deceased Balu and the accused-appellants Jeeva, Bhanwar, Gopiram, Hanuman and Kana s/o of Balu, or half of the land in dispute is in possession of the informant Prabhu PW 8 and his brother Heera.
27. Apart from the oral evidence which has come on record with regard to the possession of the disputed field, we have perused the documentary evidence on record in order to decide the question of possession over the disputed land field. Khasra Girdawari Ex. P 27 pertaining to Samvat Year 2013 onwards, has been produced by the prosecution. On a bare look at the said Khasra Girdwari Ex. P. 27 it would transpire that the land in dispute bearing khasra No. 1109 was in the joint possession of Balu and Ramuram, and both these two persons were cultivating their respective half of the share in the disputed field. Jamabandi Ex. P. 26 of Smt. Years 2018-2021 transpires that the deceased Ramuram father of the informant Prabhu PW 8 has been shown as the sub-tenant of half of the disputed land. The copies of Khasra Girdawari & Jamabandi have also been produced on behalf of the accused persons for the years. When as per the Revenue Rules, actual possession was not to be recorded by the Patwari. Therefore from the copy of Khasra Girdawari field by the accused persons, no inference of possession can be drawn for any of the parties. Admittedly, the land in dispute was recorded in Khatedari of Balu father of the accused Jeevan and others, and after his death the same was recorded in the name of Smt. Dhapu widow of Balu. But, in a criminal case, actual physical possession is be seen. So, in the instant case, as per the entries in Khasra Girdawari and Jamabandi copies of which are on record, we are of the opinion that half of the land in dispute was in continuance possession of Ramu father of the informant-Prabhu. Looking to the regular entries of Khasra Girduwari upto the year when the actual physical possession was to be recorded by the Patwari, we are of the opinion that Ramu was also in possession of half of the land in dispute during the subsequent year because a subsequent change can be inferred only when the change is supported by Ghatna Bahi or the change is recorded by the orders of competent court. Moreover after S.Y. 2019 the Patwaris were directed not to record the name of any shikrai. In these circumstances, the defence version is not correct to this extent that whole of the land was in physical possession of the accused or their father Balu. So, this can safely be held that claim of the accused appellants on whole of the disputed field is false.
28. During the course of investigation, it has been stated by Smt. Dhapu (PW 9) mother of Prabhu (PW 8) (informant) that only 20 bighas of land bearing khasra No. 1109 is in their possession and about 10 bighas of land from their share has been given to the accused Gopiram. This portion of prosecution version given before the police has been disowned by these witnesses (PW 8 & PW 9) before the trial court. They have categorically asserted that Gopiram was not given any land from their shares in the disputed land. But, for the sake of arguments, if police statements of Prabhu (PW 8) and Smt. Dhapu (PW 9) are admitted to be correct still the defence version is not believable because the accused persons are claiming whole of the land in dispute to be in their possession and it is not their case that the dispute was with regard to that half of the land in dispute which was in their possession or 10 bighas of the land which they got in partition from amongst the sons of Ramu.
29. In view of the aforesaid circumstances, we are of the opinion that the private defence of property as is claimed by the learned Counsel for the appellant was not available to the present appellants, because it has no where been stated by the prosecution witnesses that the complainant party was trying to dispossess the accused appellants from that part of the land which was in the peaceful possession of the accused, and the accused also did not allege at any stage of the trial that there was dispute in between the parties with regard to the western half of the land bearing khasra No. 1109. We do not agree with the contentions of the learned Counsel for the appellants that looking to the averments made in the plaint which was filed in the Revenue Court, the complainant party was not in possession of half of the land bearing Khasra No. 1109 in eastern side because, in the plaint as well as in the report (Ex.P 23) Prabhu (PW 8) have repeatedly stated that the accused persons are not allowing them to cultivate the field in dispute. We are of the opinion that by the aforesaid averments from the side of the complainant party, it can never be inferred that the complainant party was out of possession. While stating that the accused persons are threatening to interfere in cultivation and possession of the complainant party, simultaneously it was also stated that they are in peaceful possession over half portion of the land bearing Khasra No. 1109 in the eastern side.
30. In Ram Rattan and Ors. v. State of Uttar Pradesh it has been observed that a true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing, and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances, the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law. We are of the opinion that facts of the case (supra) are quite different from one in hand before us. In Ramrattan's case (supra), the accused persons trespassed over the path/way which was ear-marked. Their Lordships of the Supreme Court observed that as the trespasser has accomplished the possession, the complainant party was not authorised to dispossess by force. In the instant case, as we have already observed above that the complainant party was never dispossessed from half portion of Khasra No. 1109 in the eastern side and they were in continuance peaceful possession over that part of the land.
31. Similarly, another authority Hiralli and Ors. v. State of Rajasthan 1980 (5) Raj. Cr. P.C. 348 does not help the accused appellants because in this case also, the disputed field was found in possession of the accused persons, and that the complainant party tried to dispossess the accused party by force and in that process, altercation took place, as such both the sides sustained injuries and one of the person from the complainant side succumbed to the injuries.
32. It has been contended by the learned Counsel for the appellant that in the present incident, the accused appellants, namely, Hanuman sustained 3 injuries, Jeevan received 2 injuries, Gopiram sustained 3 injuries, Bhanwar received 3 injuries and Ratnaram sustained 4 injuries. Learned Counsel further submitted that the aforesaid injuries on the persons of the accused cannot be said to be self-inflicted.
33. After perusal of the injury reports of the accused (Ex.D. 12 to D. 16 and X-ray reports Ex.D. 19, D. 22 and D. 26), we find that Hanuman Ram (accused) received 3 injuries out of which one was grievous; Gopiram sustained 4 injuries, one of which was grievous and there was a fracture of the iliac bone of left side Jeevan s/o Balu received two injuries one of which was grievous and there was fracture of radius and ulna bones at their mid shaft. We further find that these injuries have been caused on the various parts of the body life skull, leg, scalp. The doctor has opined that these injuries can be caused by blunt and sharp edged weapon as is mentioned in the respective medico-legal reports of the injured. It appears that Dr. B.L. Gupta (PW 11) was not put any question by the prosecution either in re-examination or by request for recalling him to suggest that these injuries can be inflicted/caused by a fall or can be self inflicted. On the basis of the injuries on the persons of the aforesaid accused, a cross case has been instituted against the complainant party as is admitted by the eye witnesses and Suratsingh (PW 13) investigating Officer in their statements before the trial court. Some of the prosecution witnesses have admitted in their statements before the trial court that some accused received injuries in the present altercation in which the complainant also sustained injuries and Kajju & Budha lost their lives.
34. It is settled principles of law that in a murder case if the injuries on the person of the accused sustained at the time of the occurrence or in the course of altercation are not explained then non-explanation of the injuries sustained by the accused shall put premium to the accused.
35. In Lakshmi Singh v. State of Bihar , their Lordships of the Supreme Court have kid down the following principles in the cases where the injuries on the persons of the accused sustained at the time of occurrence remained unexplained; and the Court can draw the following inferences:
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable (3) that in case there is defence version of which explains the injuries on the person the accused it is rendered probable so as to throw doubt on the prosecution case.
36. It was further observed that the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one; and further that, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case; and this principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.
37. As we have already discussed that it is case of the prosecution that the injured accused received injuries at the hands of Prabhu (PW 8) and Jeevan (PW 7) but both these two witnesses nowhere stated that they inflicted any blow on the person of injured accused They simply stated that they left the place of occurrence after defending themselves. They have never stated that they caused any blow or used any lathi resulting in injuries to some of the accused in the altercation. It is thus clear that the prosecution has not come with positive case. We, therefore, find that the explanation which ought to have been given by the prosecution has not been satisfactorily made, and the so-called explanation cannot be termed as an explanation as is required by the proposition laid down in Lakshmi Singh v. State of Bihar (supra). We have already discussed that the case of the parties is on different footing. The complainant states that the accused persons wanted to dispossess them whereas, the accused appellants contended that the complainant party wanted to dispossess them. The question now arises for consideration is whether in the circumstances in which the injuries on the persons of the accused have not been properly explained by the prosecution, what would be the result as a legal and logical corollary to it.
38. As we have extracted above the proposition of law laid down by the Supreme Court in Lakshmi Singh v. State of Bihar (supra), there was a question which arises for consideration that in case there is a defence version which explains the injuries on the person of the accused and if it is found that their version is probable, then in that situation the prosecution case becomes doubtful. This principle has been followed by the Supreme Court in view of the decisions in Nohar Rai v. State of Bihar and in Puran Singh v. State of Punjab AIR 1975 SC 1974.
39. In the instant case, as per the report lodged, the eye witnesses came either from the nearby field or while passing through nearby thorough fare but this version has been changed by the informant before the trial Court and it has been stated by Prabhuram (PW 8) and Smt. Dhapu (PW 9) that they apprehended an altercation on the disputed field so, other eye witnesses were informed about the same, and they were asked to persuade the accused persons not to have any quarrel with the complainant party. Prabhuram (PW 8) stated that it was his mother Smt. Dhapu who went to them where as Smt. Dhapu (PW 9) stated that she along with her son Prabhu went to the eye witness. Looking to the aforesaid version of the prosecution it appears that the complainant party had also assembled there on the disputed field. If, at all, the prosecution version, that the accused persons were determined to dispossess the complainant, assumes to be correct then there was no difficulty for the accused persons to have achieved their object before the complainant party reached on the field in dispute because it was the version of the eye witnesses before the trial court that the accused persons have reached on the disputed field in advance. It has been further stated by the eye witnesses that at that time when the complainant party reached:on the field in dispute, the accused persons were found working in the field in dispute which is admitted to have been occupied by the accused. It was the case of the prosecution before the trial court that the accused came on the place of occurrence after Prabhuram (PW 8) reached there. So, this prosecution version that the accused persons were determined to dispossess the complainant party does not appear to be correct.
40. Similarly, this prosecution version that the complainant party did not inflict any blow on the person of the injured persons of the accused side does not appear to be correct because, looking to the entire narration of facts by the witnesses in their statements, it can be inferred that the complainant party went at the place of occurrence duly armed. In the police statement which has been disowned by the eye witnesses before the trial court, it has been stated that the deceased viz. Budha & Kajju, were having Farsis in their hands; and so also, Jeevan (PW 7) and Prabhu (PW 8) before the trial court admitted that they were also having lathies in their hands. It is thus clear that the complainant party also went armed at the place of occurrence and they were also in a mood to fight. Looking to the aforesaid statement of the prosecution witnesses, we are of the opinion that the genesis of the offence as alleged by the prosecution appears to be false and altercation took place because of certain other reasons which are not on record.
41. In the light of the above facts and circumstances of the case, we have now to examine as to what offence has been committed by the accused appellants. The occurrence took place on that portion of the disputed field which has been held to be in the possession of the complainant party, as above. It has not been explained by the accused appellants as to why and in what circumstance, they reached at the place of occurrence or what was the necessity before the accused-appellants to have gone to that place. But, in view of the aforesaid circumstances, what we find is that the accused appellants were also beaten by the complainant party. The injuries which have been caused to the injured accused are both, simple and grievous in nature, and as such, this circumstance is sufficient to make it probable to hold that the accused appellants also inflicted injuries on the persons of the complainant party in order to protect themselves.
42. In view of the above, the principles enunciated in Yogendra Morarji v. State of Gujarat are to be followed in the present case. In that case, it was observed as under:
The principles governing the burden of proof where the accused sets up a plea of private defence, are as follows: Section 105, Evidence Act enacts an exception to the general rule where by in a criminal trial the burden of proving every thing necessary to establish the charge against the accused beyond reasonable doubt, rests on the prosecution. According, to the section, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Penal Code; or within any special exception or proviso contained in any other part of the Code or in any other Law, shall be on the accused person, and the Court shall presume the absence of such circumstances. But this section does not neutralise or shift the general burden that lies on the prosecution to prove beyond reasonable doubt all the ingredients of the offence which the accused stand charged. Therefore, where the charge about the accused is one of culpable homicide, the prosecution must prove beyond all manner of reasonable doubt that the accused caused the death with the requisite knowledge or intention described in Section 299 of the Penal Code. It is only after the prosecution so discharges its initial traditional burden establishing the complicity of the accused, that the question whether or not the accused had acted in the exercise of his right of private defence, arises. Under Section 105, read with the definition of "shall presume" in Section 5, Evidence Act, the Court shall regard the absence of circumstances on the basis of which the benefit of an Exception (such as the one on which right of private defence is claimed) as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that they did exist. The accused has to rebut the presumption envisaged in the last limb of Section 105, by bringing on record evidential material before the Court sufficient for a prudent man to believe that the existence of such circumstances improbable. In other words, even under Section 105, the standard of proof required to establish those circumstances is that of a prudent man as laid down in Section 3, Evidence Act. But within that standard there are degrees of probability, and that is why under Section 105, the nature of burden on an accused person claiming the benefit of an Exception, is not as onerous as the general burden of proving the charge beyond reasonable doubt cast on the prosecution. The accused may discharge his burden by establishing a mere balance of probabilities in his favour with regard to the said circumstances.
The material before the Court to establish such a preponderance of probability in favour of the defence plea may consist of oral or documentary evidence, submissions appearing in evidence led by the prosecution or elicited from prosecution witnesses in cross-examination presumptions, and the statement of accused recorded under Section 313, of the Criminal PC, 1973.
Not with standing the failure of the accused to establish positively the existence of circumstances which would bring his case within an Exception, the circumstances proved by him may raise a reasonable doubt with regard to one or more of the necessary ingredients of the offence itself with which the accused stands charged. Thus, there may be cases where despite the failure of the accused to discharge his burden under Section 105 the material brought on the record may, in the totality of the facts and circumstances of the cases be enough to induce in the mind of the Court a reasonable doubt with regard to the mens rea requisite for an offence under Section 299 of the Code.
43. Looking to the facts and circumstances of the present case, as narrated and discussed above, we are of the opinion that case of the present accused-appellants is covered by exception 2 of Section 300 of the Penal Code because, the accused appellants while exercising private defence of their person exceeded their right of defence available to them without premeditation and without any intention to commit murder. Hence, the accused appellants are held guilty for the offence under Section 304 Part 2, I.P.C.
44. In the result, this appeal is partly allowed; the conviction under Section 302 I.P.C. of the accused appellants is set aside so also their sentence under Section 302 I.P.C. is also set aside but, they are convicted under Section 304 Part 2, I.P.C., and sentenced to 5 year's rigorous imprisonment. In other respect, their conviction and sentence under Sections 147, 148, 325/149 and 323, I.P.C., are maintained. The sentences are ordered to run concurrently. The accused-appellants shall be entitled to the benefit of Section 428, Cr. P.C. and their period of detention shall be set off against the term of imprisonment awarded and confirmed by this Court, as above. To the above extent, the impugned judgment of the trial court is modified.