Rajasthan High Court - Jaipur
Himmat Dan & Ors. vs State Of Rajasthan on 2 June, 2000
Author: N.N. Mathur
Bench: N.N. Mathur
ORDER Mathur, J.
(1). Both the appeals have been directed against the judgment dated 19th December, 1981, passed by the learned Sessions Judge, Jodhpur, in Sessions Case No. 147/1980. In D.B. Criminal Appeal No. 659/1981, appellants Himmat Dan, Shiv Dan and Man Dan and in Appeal No. 1/1982, Pratap Dan, Har Dan and Bakhtavar Dan have been convicted of the offence u/s 302/149 IPC and sentenced to imprisonment for life and to pay a fine of Rs. 100/- each and in default of payment, to further undergo one month's rigorous imprisonment. All the accused persons have also been convicted of offence u/ss 148, 447 and 307/149 IPC and they have been sentenced to one year's rigorous imprisonment, six months' simple imprisonment and four years' rigorous imprisonment respectively. Appellant Pratap Das has also been convicted of offence u/s 324 IPC and appellants Bakhtavar Dan, Har Dan, Himmat Dan, Shiv Dan and Man Dan of offence u/s 324/149 IPC and each of them has been sentenced to six months' rigorous imprisonment. All the appellants have also been convicted of the offence u/s 323 IPC and sentenced to six month's simple imprisonment. All the sentences have been ordered to run concurrently.
(2). The prosecution case as disclosed during the trial is that P.W.1 Ghewar Ram Megwal is a resident of village Birai, Tehsil Shergarh, District Jodhpur. On the outskirt of village Birai, there is a well known as Alakhsagar in the agricultural land bearing Khasra No. 409, belonging to him. There is also a land of his ownership and possession in Khasra Nos. 410, 689 and 408. The agricultural land in Khasra No. 408 was given in share to his brother Manak Ram. Rest of the land i.e. 17 bighas and 5 biswas of land in Khasra No. 410, 16 and half bighas of land in Khasra No. 689 and 12 bighas of land in Khasra No. 409 are in cultivatory possession of P.W. 1 Ghewar Ram for last more than 40 years. In between Nos. 410 and 689, there is a public way going from village Birai to Utambar. In two bighas of land in Khasra No. 410, Ghewar Ram had sown the crop of chillies in the year 1980 and in Khasra No. 689, the crop of 'Bajari' was sown. On 16.8.1980, P.W. 1 Ghewar Ram alongwith his son P.W. 2 Balu Ram and his wife P.W. 3 Smt. Jatna were working in the field of chillies. Ghewar Ram's another son Bhera Ram (deceased) and his wife P.W.5 Mst. Noji and daughter-in-law P.W. 6 Mst. Chandani were in 'Jhupa' (Hut) constructed on the agricultural land bearing Khasra No. 410. Ghewar Ram's daughter P.W. 4 Miss Mangi was grazing cattle in the nearby area. It is alleged that at 9-10 A.M., all the eight accused persons viz; (1) Pratap Dan (2) Sohan Dan, (3) Bakhtavar Dan, (4) Khet Dan, (5) Hardan, (6) Himmat Dan, (7) Shiv Dan and (8) Man Dan alongwith some labourers arrived on the land bearing Khasra No. 689. They started plucking the 'sittiya' of Bajra crop. As the accused persons were in large number, Ghewar Ram could not dare to object plucking of Bajari 'Sittiya'. They continued to pluck the Bajari 'sittiya.' for an hour. Thereafter, they entered in the field of chillies where Ghewar Ram was working with other members of the family. Accused Pratap Dan and Sohan Dan were armed with 'Kulharis'. Rest of the accused were armed with lathis. Pratap Dan and Sohan Dan inflicted injuries on the head of Ghewar Ram by 'Kulhari'. On account of the injuries, he fell down. Thereafter, all the accused persons assaulted him. Bhera Ram, the elder son of Ghewar Ram came out of the 'Jhupa' to rescue his father. He was also assaulted by The accused persons. Bhera Ram also fell down on the ground. The wife of Ghewar Ram P.W. 3 Mst. Jatni came to rescue her husband but she was also assaulted. The same treatment was given to the son of Ghewar Ram i.e. P.W. 2 Balu Ram and P.W. 4 Mst. Mangi, daughter of Ghewar Ram, Bhera Ram's wife P.W. 6 Mst. Chandani with her one year baby escaped from the Dhani. It is further alleged that the accused persons lifted all the injured persons namely Bhera Ram, Balu Ram, Ghewar Ram and Smt. Jatna from the Bajari field and put them beneath the Khejri tree on the way between Khasra Nos. 410 and 689. They were further assaulted by kulharis and lathis. Bhera Ram succumbed to the injuries on the spot. Ghewar Ram, Balu am and Smt. Jatna remained lying injured beneath the Khejri tree. The information of the incident was lodged by P.W. 7 Jagmal Dan, a school teacher, vide Ex. P.6 at Police Station, Balesar, on 17.8.80 at 1 A.M. On the basis of this information, police registered a case for the offence u/s 302 IPC and proceeded with investigation. After usual investigation, police submitted a chargesheet against eight accused persons for the offences u/ss 302, 307, 324, 325, 149, 447, 148 IPC.
(3). The accused persons pleaded not guilty to the charges levelled against them and claimed trial. The prosecution in support of the case examined 14 witnesses and produced number of documents. In their statements under Section 313 Cr.P.C. all the accused persons denied the correctness of the prosecution evidence appearing against them. The appellant Pratap Dan stated that the witnesses have given false statements as they belonged to one family. He also stated that the land bearing Khasra Nos. 689 and 410 was of their cultivatory possession since time immemorial for more than 50 years. A wrong entry was made in the revenue record on account of the mistake of the officials of The Settlement Department, whereby the land was entered in the name of Kana Ram (Father of P.W.1 Ghewar Ram) instead of their names. In the year 1960, Kana Ram filed a suit in The court of Assistant Collector, Jodhpur for the purpose of taking illegal benefit. He also stated that on the death of Kana Ram, Ghewar Ram was substituted as Legal Representative. In the said suit, Kana Ram and Ghewar Ram both conceded his possession on the subject land. He contested the suit upto the Revenue Board. The appeal was filed on account of the death of Kana Ram, which was dismissed on account of the fault of the advocate. However, the decree was not executed and the possession was not taken from him. Thus, he has been in continuous possession over the subject land. He further stated that in The preceding year in the month of 'ashadh' on rains, he had sown the crop of Bajari in the said land. Thereafter, for guarding the crop, he had constructed a small 'Jhupa' of 4 x 4 on the land. He had placed one water earthen pot and one iron tumbler. The crop of Bajari was cultivated by them. On 16.9.80, he alongwith 20 persons went to the field at about 9 A.M. for harvesting the crop of Bajari. At about 12 noon, Ghewar Ram arrived armed with a Kulhari. He was accompanied by Bhera Ram, armed with a Kulhari and Balu Ram armed with a lathi. Mst. Jatni was also carrying a lathi in her hand. Ghewar Ram asked them to leave the field, otherwise they will be killed. They did not leave the field and, as such, Ghewar Ram, struck a Kulhari blow on his head. However, he was saved because of turban on the head. Bhera Ram attacked on Man Dan by Kulhari but he was saved. Thereafter, Bhera Ram attacked on Sohan Dan by Kulhari causing severe injuries on the left hand. There was profuse bleeding. Balu Ram and Jatna also assaulted Them. Hearing his cries, Man Dan, Himmat Dan, Har Dan, Shiv Dan, Bagtavar Dan and Khet Dan rushed to the spot to rescue Them. He also stated that if the said persons had not come, he alongwith Sohan Dan would have been killed and they would have forcibly taken possession over the subject land. He also stated that four or five days back, they had sown chillies in Khasra No. 410. He also produced the judgment in settlement in their favour. He also produced the copy of the objection filed before the Settlement Department. All the other accused persons adopted the statement of Pratap Dan except Man Dan. He stated that they were in continuous possession of Khasra Nos. 410 and 689. The crop of Bajari was sown by them. The crop was cultivated and guarded by them. He also stated that when they went for harvesting the Bajari crop, Ghewar Ram and Bhera Ram armed with Kulharis and Balu Ram and Mst. Jatni armed with lathis abruptly attacked on them. Ghewar Ram asked them to leave the field immediately, otherwise they will be killed. They did not leave the field. Bhera Ram attacked on him by a Kulhari but he could save himself. He also attacked on Sohan Dan and chopped off his hand. Ghewar Ram attacked on Pratap Dan causing injuries on his hand. Balu Ram assaulted them by lathis. He also stated that they are in continuous possession over the land in dispute. They also stated that Bajari crop was sown by them. Accused Sohan Dan stated that Bhera Ram inflicted three injuries on his left hand on account of which his hand became disabled. Rest of the statement of Pratap Dan was adopted by him. The defence examined 6 witnesses in support of their version. On consideration of evidence on record, the trial court accepted the prosecution version as regards the possession as well as the manner in which the incident took place. The plea of self defence was rejected by the trial Court. The trial court convicted and sentenced all the accused persons as mentioned above except Sohan Dan and Khet Dan. Both the accused persons have been acquitted by the judgment under appeal.
(4). Assailing the judgment, it is contended by Mr. Doongar Singh, learned counsel for the appellants that the trial court has committed error in holding that the complainant party was in possession over the land in dispute i.e. Khasra No. 410 and 689. It is submitted that even from the prosecution evidence, it is established that the accused persons were in possession over the land in dispute and the mis-chief was committed by the complainant party to dispossess them. It is also submitted that even if the accused persons were trespassers on the land, they could be dispossessed only in accordance with law and they had a right to cause injuries to the complainant party in exercise of their right of private defence. It is also submitted that there is nothing to show that as to who had caused the fatal injury to the deceased Bhera Ram. Injuries on the persons of the accused appellants have not been explained by the prosecution. Mr. M.L. Garg, learned counsel appearing for the accused Pratap and others has also raised identical contentions.
(5). On the other hand, learned Public Prosecutor assisted by Mr. Mahesh Bora, learned counsel for the complainant, has supported the judgment of the trial court.
Mr. Mahesh Bora, learned counsel appearing for the complainant has submitted that there is an overwhelming evidence to show that the complainant party was in possession over the land in dispute. It is submitted that the large number of injuries on the body of deceased Bhera Ram and other witnesses speaks in volume, the cruel manner in which they were assaulted. It is submitted that it is beyond comprehension that Ghewar Ram with his two sons and wife could think of dispossessing twenty well built male persons armed with deadly weapons. It is submitted that the plea of right of private defence is nothing but an after thought. It is also submitted that it is a glaring case of highhandedness of the accused persons and atrocities on the persons of depressed class of the Society.
(6). We have considered the rival contentions. We have also scanned the evidence on record. P.W. 14 Dr. N.S. Kothari has stated that on 18.9.1980, he conducted the post mortem of the dead body of deceased Bhera Ram and found the following injuries:
"1. Ill define swelling on the left temple region of face and left ear pinna with haematoma;
2. Bruise - 6.0 cm x 2.0 cm on the upper 1/3 left arm oblique with Abrasion - 3.0 cm x 2.0 cm on the lateral aspect;
3. Bruise - 8.5cm x 1.5cm on the middle 1/3 left arm oblique laterally with Abrasion - 3.5 cm x 1.0 cm;
4. Abrasion - 4.00 cm x 1.0 cm lower l/3rd left arm laterally;
5. Bruise 6.0 cm x 2.0 cm on the middle 1/3 rd left arm dorso laterally;
6. Bruise 8.0 cm x 5.0 cm on the middle 1/3 right arm antero laterally with fracture of shaft right humerous;
7. Ill define swelling right hand with fracture of 2nd meta carpal bone with haematoma;
8. Bruise - 10.0cm x 4.0 cm on the left scapular region oblique;
9. Bruise - 7.0 cm x 1.0 cm on the right scapular region;
10. Bruise - 14.0 cm x 3.0 cm on the left lower chest and left hypochon-drium upto post axillary line with fracture of 10th rib left side in mid axillary line. On opening the abdomen-there is laceration (rupture) of spleen 5.0cm x 1.0cm x 1.0cm on the antero lateral aspect and peritonear cavity is full of partially clotted blood about 1200 to 1500 ml.
11. Bruise 8.5cm x 2.5cm on the back of lower chest in middle in transverse direction;
12. Bruise 13.0cm x 3.0cm on the lumber region oblique;
13. Bruise 20.0cm x 16.0cm on the right gluteal region with haematoma;.
14. Bruise 18.0cm x 16.0cm on the left gluteal region with haematoma;
15. Bruise 13.0cmx 1.0 cm lower 1/3rd left thigh anteriorly in oblique direction;
16. Bruise 10.5cm x 1.5 cm on the middle 1/3rd left thigh laterally;
17. Abrasion 5.0 cm x 0.5 cm on the upper 1/3rd left leg anteriorly;
18. Ill define swelling calf region left leg;
19. Ill define swelling left ankle region with fracture of left medial malleolus;
20. Ill define swelling right ankle laterally with abrasion 2.5cm x 1.0 cm."
He has proved the post mortem report Ex.P.56. In his opinion, the cause of death was shock and haemorrhage due to rupture of spleen and multiple injuries. He also admitted that the injuries could have been cuased by lathi or the opposite side of the Kulhari. Thus, it stands proved that Bhera Ram died of homicidal death.
(7). P.W. 13 Dr. Narendra Gehlot has stated that on 17.9.80, he examined P.W. 1 Ghewar Ram and found the following injuries on his person:
"1. Lacerated wound 3cm x .5cm x .5cm deep oblique on Rt. side of scalp, about 7cm above to Rt. eye brow;
2. Incised wound 7cm x 1cm x 1 cm deep on Rt. parietal region about 8cm above to Rt. ear, oblique in nature from parietal Rt. side to central part of scalp;
3. Incised wound 4.5cm x 1cm x 1cm deep horizontal in nature from Lt. side to central side of occpit, on the occipital region;
4. Incised wound 2.5cm x .5cm x .5cm deep on occipital region, Horizontal in nature about 2cm. posterior to injury No.3;
5. Lacerated wound 1.5 cm x 1cm x .3cm on Lat. side of Rt. eye;
6. Lacerated wound 1cm x .5cm x .5cm deep on Extensor Surface of Rt. arm in Lower 1/3 part;
7. Abrasions 1 x 1cm on Rt. Index finger .5 x 1cm on Rt. middle finger (Rt. Hand)
8. Swelling 8cm x 6cm on dorsal side of Rt. palm;
9. Swelling 6cm x 5cm on Extensor side of Left arm in mid part;
10. Swelling 8.5 cm x 8cm on Left arm just below to left elbow;
11. Contusion 9cm x 2cm oblique on Lt. side of Back;
12. Contusion 7cm x 1cm Horizontal on It. side of back in lower part;
13. Contusion 10cm x 7cm on left scapular region;
14. Multiple contusions 20cm x 18cm on Right gluteal region;
15. Multiple contusions 20.5cm x 16cm on left gluteal region."
He has proved the injury report Ex. P.52. He also stated that injuries No. 2, 3 and 4 were caused by sharp edged weapon and rest of the injuries were caused by blunt object. He referred injuries No. 8, 9, 10 and 11 for radiological examination. He found rest of the injuries simple in nature. After seeing the x-ray plate, Ex. P. 16, he opined that injuries No. 8, 9, 10 and 11 were grievous in nature. He also stated that on the same day, he examined P.W.2 Balu Ram, aged 16 years. He noticed the following injuries on his person:
"1. Incised wound 5cm x 1cm x .5cm deep on central part of scalp about 5.5cm above to glabella running antero posteriorly;
2. Contusion 10cm x 8cm on Lt. upper arm on the deltoid region;
3. Contusion 12cm x 10cm on left shoulder region (scapular);
4. Contusion 10cm x 8cm on Rt. scapular region;
5. Contusion 6cm x 2cm oblique, on left side of Back;
6. Contusion 5cm x 5cm on Extensor side of left arm in mid part;
7. Contusion 5cm x 3cm on Rt. arm on Extensor side in lower 1/3 part;
8. Contusion 9cm x 2cm on left gluteal region;
9. Contusion 11cm x 2.5cm oblique, on lateral side of left thigh, on upper part;
10. Contusion 7cm x 1cm oblique, on Lat. side of left thigh in mid part;
11. Lacerated wound 2cm x .5cm x .2cm vertical in mid part of left leg on Ant. side;
12. Contusion 5 x 4cm on left leg in mid part 3cm above to injury No. 11;
13. Lacerated wound 1cm x .5cm x .2cm deep vertical on Rt. leg in mid part;
14. Lacerated wound 1 x .5cm x .3cm deep on Rt. leg in mid part vertical;
15. Contusion 5 x 4cm on Rt. gluteal region;
16. Pt. complained of pain in Rt. knee joint, but no injury is seen."
He has proved injury report Ex. P.53. He found injury No. 1 simple in nature caused by sharp edged weapon.
(8). He further stated that on the same day, he examined P.W. 5 Mst. Jatna and found the following injuries:
"1. Lacerated wound 6cm x 1cm x .2cm deep oblique, on left parietal region about 8cm above to left ear;
2. Contusion 9cm x 4cm oblique on Lat. side of Left upper arm;
3. Contusion 4cm x 2cm oblique on Lat. side of left upper arm;
4. Contusion 9 x 2cm oblique on Rt. gluteal region;
5. Multiple contusions 20cm x 14cm on left gluteal region;
6. Contusion 9cm x 5cm on Lateral side of left thigh in upper 1/3 part;
7. Contusion 3cm x 3cm on Rt. thigh, on upper part & on lateral side;
8. Abrasion 3cm long on Rt. Arm."
He has proved the injury report Ex. P. 54. All the injuries were simple in nature caused by blunt object.
(9). On the same day, he also examined P.W. 4 Kumari Mangi and found the following injuries;
"Contusion 4cm x 3cm on Lat. side of Right upper arm."
He has proved the injury report Ex. P. 55.
(10). P.W. 14 Dr. N.S. Kothari in The cross examination admitted that he had examined accused Sohan Dan on 19.9.80 and prepared injury report Ex.D.17. He noticed the following injuries on his person;
" 1. Incised wound 8.0cm x 1.5cm x bone deep on the dorsum of Right hand extending from 2nd metacarpal region (base) upto base of index finger;
2. Incised wound 10.0 cm x 1.5cm x bone deep in transverse direction extending from base of index finger dorsally upto base of right little finger;
3. Incised wound 3.0cm x 0.5cm x skin deep oblique on the right wrist joint dorso laterally."
Out of three injuries, injury No. 3 was simple in nature caused by sharp edged weapon. On radiological examination, injuries No. 1 and 2 were found to be grievous in nature caused by sharp edged weapon. He also admitted that after having sustained the said injures, it was not possible for the injured to use any weapon. He further stated that injured would become disabled to cause any injury from that hand. He further admitted that on the same day, he had examined accused Pratap Dan and prepared the injury report Ex. D. 18. He noticed the following injuries on his person;
"1. Incised wound 1.5cm x 0.2cm x scalp deep on the left parietal region of The scalp oblique;
2. Lacerated wound 2.0cm x 1.0cm x skin deep middle 1/3rd left forearm dorsally;
3. Lacerated wound 2.0 cm x 0.5cm x skin deep on The lower 1/3 of led forearm dorsally;
4. C/o pain left hand but there is no evidence of injury."
Injury No.1 was simple in nature caused by sharp edged weapon. Injuries No.2 and 3 were simple in nature caused by blunt object. With respect to injuries No.4 and 5, he stated that the injured was complaining pain but there was no visible injury.
(11). It emerges from The medical evidence that the victim party, in total, sustained 58 injuries, out of which 8 are grievous in nature. The injuries have been caused by sharp and blunt edged weapons. The accused party had sustained, in total, 8 injuries, out of which two injuries are grievous in nature. The injuries are on fingers. Two injuries are not visible but the doctor has mentioned on the basis of complaint of pain made by accused Pratap Dan.
(12). The crucial question which arises for consideration is as to who was in possession of the disputed field on the dale of occurrence i.e. 16.8.80 and who were the aggressors.
(13). As regards the possession, the dispute is with respect to land in Khasra Nos. 410 ad 689. P.W. 12 Mangilal, Patwari of the Village Birai, has produced relevant revenue record pertaining to Khasra Nos. 409, 410 and 689 before the trial court. As per the revenue record, land in Khasra Nos. 410 and 689 stands in the name of Ghewar Ram and Manak Ram, both sons of Kana Ram Meghwal. He pointed out relevant entry in Ex. P. 9. He also produced the Jamabandi of the land of the Samvat 2035 to 2038, which shows that the land in Khasra Nos. 409, 410, 689 and 408 stands in the name of P.W. 1 Ghewar Ram and Manak Ram, both sons of Kana Ram. He showed the relevant entry in Ex. P. 51. In the cross examination, he admitted that Patta may be in the name of one but may have been actually cultivated by some other person. The entries in the Girdawri are made on the basis of the Patta and not on the basis of the actual cultivatory possession. He also admitted in the cross examination that there was crop of Bajari in Khasra Nos. 410 and 689. He had seen the family members of Pratap Dan guarding the Bajari crop.
(14). P.W. 1 Ghewar Ram stated that the land in Khasra Nos. 410, 689 and 408 belongs to him. He alongwith his brother Manak Ram inherited the land from their father Kana Ram. Both the brothers have divided the land by compromise. He also stated that he has been in cultivatory possession of the land as in two bighas of Khasra No. 410, he had sown chillies in the month of Ashadh of the year 1980. He also stated that at the same time, he had sown Bajari in rest of the land of Khasra Nos. 410 and 689. He also stated that a hut was also constructed on Khasra No. 410. With regard to court litigation, he stated that between him and accused Pratap Dan, there was a revenue Suit with respect to land in Khasra Nos. 410 and 689. The dispute concluded by a decision of the Revenue Board in his favour. He produced the judgment of the Revenue Board as Ex.P.3. In the cross examination, he admitted that in the year 1960, his father Kana Ram had filed a revenue suit pertaining to Khasra Nos. 410 and 689 against Pratap Dan and his family members. The said suit was decided in his favour by the Assistant Collector, Jodhpur. The appeal was filed against the said judgment by accused Pratap Dan and others before the Revenue Appellate Authority. After having failed before the Revenue Appellate Authority, the accused persons approached to the Revenue Board. The Revenue Board also dismissed the second appeal in the year 1977. He also admitted that the crop sown by him was destroyed by accused Pratap Dan and others. He also admitted that 20 to 25 days prior to the date of incident, at the instance of accused Pratap Dan and others, a proceeding under Section 107 Cr. PC was initiated against him and his son Balu Ram. In the said case, he was asked to execute a bond to maintain peace. He was confronted with his earlier statement Ex.P.2 before the Revenue Court in which he had stated that he was dispossessed from the land two years prior to the incident. He was also confronted with the averments made in the plaint Ex.P.3, wherein it was stated that they were dispossessed from the land in dispute two years prior to the date of filing of the suit.
(15). P.W. 2 Balu Ram has stated almost in the line of P.W. 1 Ghewar Ram with respect to the possession over the land in dispute. In the cross examination, he also admitted with respect to initiation of proceedings under Section 107 Cr. PC at the instance of accused Pratap Dan. He also admitted in the cross examination that after conclusion of the proceedings in the Revenue Court, The possession of the land was not delivered to his father by the Govt. officials. He stated that they were already in the possession.
(16). P.W.3 Mst. Jatna admitted in the cross examination that there was a revenue suit with respect to the subject land between his father-in-law Kanaji and the accused persons. The litigation continued for about 20 years. She also stated that they asked Pratap Dan to vacate their possession from the land in dispute but they did not do so. She further stated that Pratap Dan told them that he would kill them but would not leave the possession.
(17). P.W.7 Jagmal Dan, a school teacher in the village, who had lodged the FIR of the incident, stated that on the subject land, Pratap Dan had sown the crop of Bajari. In the cross examination, he stated that his field is near to the disputed fields. He admitted that he has seen possession of the accused Pratap Dan and others on the land bearing Khasra Nos. 689 and 410. He also stated that a hut was constructed on the said land by Pratap Dan.
(18). P.W.8 Deva Ram has stated that he had seen the possession of Ghewar Ram on the disputed land. He also stated that he had not seen the accused persons on the land belonging to Ghewar Ram. In the cross examination, he admitted that he had not seen any Govt. official delivering the possession of the land in dispute to P.W. 1 Ghewar Ram. He also admitted in the cross examination that in the preceding year, Ghewar Ram had sown Bajari, which was destroyed by Pratap Dan etc. He also stated that the land, Ghewar Ram had sown, was re-sown by Pratap Dan, Man Dan etc. On further cross examination, he pleaded ignorance if there was possession of Pratap Dan etc. on the land bearing Khasra Nos. 689 and 410.
(19). D.W. 1 Roop Dan, a resident of village Birai, has stated that he used to pass through the way in between the land bearing Khasra Nos. 689 and 410 for going to his field. He stated that he has always seen accused Pratap Dan and others cultivating on the said land. He also stated that in the preceding year, the accused persons had sown the crop of Bajari in the disputed land. He also stated that a hut was constructed on the disputed land by the accused persons. In The cross examination, he admitted that a year back, he had seen Ghewar Ram sowing chillies in the pan of the subject land. He has also seen Ghewar Ram sowing Bajari. He denied The suggestion that he has given false evidence as the accused persons belonged to his community. D.W. 2 Rani Dan has given the statement almost in the line of D.W. 1 Roop Dan.
(20). Thus, from the evidence, it is evident that the title of the land is in favour of the complainant party. The revenue suit has concluded in their favour. However, the crucial question is as to who was in actual possession of the land in dispute at the time of The incident. There is a clear averment in the suit filed before the Revenue Court in the year 1960 that father of P.W. 1 Ghewar Ram namely Kana Ram was dispossessed by the accused persons two years prior to the filing of the suit. P.W.1 Ghewar Ram has also stated before The Revenue Court that they were dispossessed from the land in dispute two years prior to the date of filing of the suit. It is of-course true that The revenue litigation has concluded in the year 1977 in favour of the complainant party but there is no evidence to show that in execution of the decree the possession was delivered to the complainant party. It has been admitted by the prosecution witnesses that they have not seen any Govt. official delivering possession of the land in dispute to P.W.1 Ghewar Ram. Thus, it can be said that the accused persons trespassed over the disputed land two years prior to the date of filing of The suit i.e. 1960 and they have continued in possession as a trespasser. P.W. 12 Mangilal has stated that though the land is entered in the Jamabandi and revenue record in the name of complainant party but he had seen the accused persons cultivating the subject land. There is no reason to disbelieve the statement of P.W. 12 Mangilal, who is a Patwari of the area. P.W. 7 Jagmal Dan is also an independent witness. He has also stated that he had seen The accused persons cultivating the subject land. He also stated that he had seen Pratap sowing Bajari crop in the preceding year. He also stated that a hut was constructed by Pratap on the subject land. P.W. 8 Deva Ram has admitted in the cross examination that he had seen Ghewar Ram sowing 'Gwar' in the field, which was later-on destroyed by Pratap Dan. He also stated that the land was re-sown by Pratap Dan. P.W. 2 Balu Ram has admitted that no Government official came to deliver possession. P.W. 3 Mst. Jatni has admitted that she asked Pratap Dan to vacate the possession on which Pratap Dan told her that he will kill them, but he will not leave the possession. This clearly shows that accused party has continued in possession as trespasser, even after the revenue proceeding being decided in favour of the victim party.
(21). A formidable question to be answered by the prosecution is as to when P.W. 1 Ghewar Ram re-entered over the land before or after the revenue litigation was concluded in the year 1977. We are unable to agree with the reasoning given by the learned trial court that the accused persons might have voluntarily surrendered possession after having failed in the revenue suit and relieved the complainant party from taking proceedings by way of execution. If the things were so simple, the unfortunate incident would not have taken place. We are also unable to agree with the finding of the trial court that what existed in the year 1960, cannot be held to be in existence in the year 1980 when the incident took place. When a state of things is established to be existing, ordinarily there is a presumption of continuance of such state of things. The fact having been established that the possession of the subject land was with Pratap Dan and it was not disturbed even after revenue suit being decided against him, the only inference can be that the things, shown to have existed, continued to exist. It appears that the complainant party, instead of taking the lengthy process of execution, indulged in taking possession directly. This is evident from the initiation of proceedings against P.W. 1 Ghewar Ram and P.W. 2 Balu Ram under Section 107 of the Code of Criminal Procedure al the instance of accused Pratap Dan and others, which is admitted by both the prosecution witnesses. They have admitted that bonds were executed for maintaining peace by them, in proceeding u/s 107 Cr. PC. It appears that sometime before the incident, The complainant party entered on The subject land and took over the possession of the property. The accused persons having come to know of this fact, went to the disputed land to remove them. The next question which arises for consideration is who was the aggressor. To answer this, we will require to look into the evidence of the eye witnesses again from this aspect.
(22). P.W.1 Ghewar Ram has stated that on 19.9.80 at about 10 AM, he alongwith his wife P.W. 3 Mst. Jatna and his son P.W. 2 Balu Ram were working in the field, in which chillies were sown. In The hut in Khasra No.410, his mother P.W. 5 Mst. Noji, his deceased son Bhera Ram and P.W. 6 Mst. Chandni, widow of Bhera Ram, with a child of one year were there. At about 11 AM, all the eight accused persons alongwith four ladies arrived in Khasra No. 689 in which they had sown the crop of Bajari. They started plucking the 'sittia' of the Bajari crop. Accused Pratap Dan and Sohan Dan were armed with Kulharis, whereas other accused persons were armed with lathis. Lady accused persons were carrying 'Daatli' in their hands. After some time, they came to the field, where they were working. Accused Pratap Dan struck a kulhari blow on his head. Sohan Dan also struck a kulhari blow on his head. Pratap Dan again tried to give kulhari blow on his head but it fell on the head of Sohan Dan. Other accused persons assaulted him by lathis. At that time, his son Bhera Ram came out of the hut. As soon as he came out of the hut, accused Pratap Dan from the opposite side of the Kulhari gave a blow on his head. Thereafter, accused Haru Dan, Shiv Dan, Bakhtavar Dan and Khet Dan assaulted Bhera Ram on account of which he sustained severe injuries. Accused persons again returned to assault him. On intervention, Mst. Jatna was also assaulted. He also stated that accused Sohan Dan struck a lathi blow to his wife Mst. Jatna.
(23). P.W. 2 Balu Ram has given statement almost in line of his father P.W. 1 Ghewar Ram. So as P.W. 3 Mst. Jatna. As far as P.W. 4 Mangi, P.W. 5 Mst. Moji and P.W. 6 Mst. Chandni are concerned, they have been disbelieved by the trial court. We have read the statements of these three witnesses. As far as P.W. 4 Mangi is concerned, she is 12 to 13 years of age and she was grazing cattle in another field. As such, she could not have witnessed the incident. P.W. 5 Mst. Moji is an old lady of 70 years. In the cross examination, she has admitted that her visibility is very poor and she could not see the accused persons. P.W. 6 Mst. Chandni has stated that hearing cries of her father-in-law P.W. 1 Ghewar Ram, out of fear, she ran away from The place of the incident. Thus, in our opinion, The trial court has rightly rejected the testimony of these three witnesses. They are not the eye witnesses of the incident. The statement of injured P.W. 1 Ghewar Ram and P.W. 3 Mst. Jatna are corroborated by the medical evidence. The statement of P.W. 2 Balu Ram also supports the statements of P.W. 1 Ghewar Ram and P.W. 3 Mst. Jatna. The defence version that they had gone to the disputed field for harvesting 'Bajra' and Ghewar Ram, Bheru Singh etc. abruptly attacked on them and asked them to leave the field, on face, appears to be false, as it is difficult to comprehend that Ghewar Ram with his two sons and three ladies with a baby of one year, could think to dispossess twenty well built persons armed with weapons. Accused persons have received only eight injuries, against 58 injuries sustained by the victim party. The statement of the three eye witnesses P.W. 1 Ghewar Ram, P.W. 2 Balu Ram and P.W. 3 Mst. Jatna is so probable, consistent and creditworthy that it outweighs the effect of the omission on the part of the prosecution to explain the injuries. Thus, it is proved that the accused persons assaulted the complainant party in the manner alleged by the prosecution. For these reasons, accused persons had no right of private defence of persons. On the question of right of private defence of property, in view of our finding that victim party instead of taking possession by way of execution, has disturbed the possession of the accused party, though that of a trespasser and such played mischief. In these circumstances, accused persons were entitled to use reasonable force to protect the property in their possession. However, looking to the large number of injuries on P.W. 1. Ghewar Ram and deceased Bhera Ram, we are of the view that the accused persons exceeded the right of private defence, therefore, they have committed offence punishable u/s 304 part II IPC instead of 302 IPC. We are fortified in our view by the decision of the Apex Court in Rajendra Mehta vs. State of Bihar (1).
(24). In view of the aforesaid discussion, the conviction of appellants for the offences u/ss. 148, 447 and 307 IPC and the sentence awarded on that court is also upheld. The conviction of appellant Pratap Dan for the offences u/ss 323 and 324 IPC and of the appellants Bakhtavar Dan, Har Dan, Himmat Dan, Shiv Dan and Man Dan for the offences u/ss. 323 and 324/149 and the sentence awarded on that court does not call for any interference.
(25). Turning to the question of sentence, it is submitted that the appellants have remained in jail for more than one year. Considering the fact that incident is of the year 1980 and the fact that appellants were in long possession of the subject land, no useful purpose is going to be solved to send them to jail after 18 years to undergo sentence for few more years. The ends of justice would be met if they are awarded the sentence for the period already undergone.
(26). We have also heard learned counsel for the appellants Mr. Doongar Singh and Mr. ML. Garg and Mr. Mahesh Bora, learned counsel for the complainant, on the question of payment of compensation to the person, who have suffered on account of murder of Bhera Ram. Both the learned counsel for the appellants have agreed under the instructions of their clients to pay a reasonable compensation.
(27). Section 357 of the Code of Criminal Procedure empowers the court to award compensation to the victim for the loss suffered. By the Amendment, a provision has been made for payment of compensation irrespective of the fact whether the offence is punishable with fine and actually, the fine has been imposed. By the Rajasthan Amendment Act 3 of 1993, the payment of separate compensation from the accused to the victim belonging to the Scheduled Caste or Scheduled Tribe is mandatory. Sub Section (3) of Section 357 as amended by the Rajasthan Amendment Act 3 of 1993 and Sub Section (4) read as follows:
"(3) When a Court imposes a sentence, of which fine does not form a part, the Court may, and where the person against whom an offence is committed belongs to a Scheduled Caste or a Scheduled Tribe but the accused person does not so belong, the Court shall, when passing judgment, order the accused person to pay, by way of compensation, such amount as may be specified in the order to the person who has suffered any loss or injury by reason of the act for which the accused person has been so sentenced.
(4) An order under this section may also be made by an Appellate Court or by the High Court or Court of Session when exercising its power of revision."
(28). Thus, in case of a victim of Scheduled Caste or a Scheduled Tribe, the payment of separate compensation to the victim, where the accused person does not belong to a Scheduled Caste or Scheduled Tribe, is mandatory. The compensation is to be awarded with due regard to the nature of injury, the manner of inflicting the same, the capacity of The accused to pay and other relevant factors. It is desirable that a notice is also given to the complainant, who is to be awarded compensation under the provisions of Section 357 Cr. P.C. However, an order of awarding compensation shall not be vitiated simply because the notice has not been given to The complainant. This court has adopted a practice of obtaining the report from the concerned Police Station with respect to The financial conditions of the accused persons as well as of the complainant party and their social status etc. In The instant case, the S.H.O., Police Station, Balesar, has submitted a report dt. 27.5.2000, stating that the disputed land is in possession of P.W. 1 Ghewar Ram. The widow of The deceased after the incident has contacted another marriage. Deceased Bhera Ram's son has grown up and he is now around 20 years old. The financial condition of the accused party is average. Deceased Bhera Ram's son Jetha Ram lost his father in The unfortunate incident while he was only one year. On account of death of his father, mother also abandoned him. Thus, Jetha Ram has been deprived of his father and mother at a very early age. Thus, Jetha Ram has suffered most by reason of the act of the appellants for which we have held them guilty and sentenced. Thus, we consider it to be a fit case to direct the accused appellants to pay compensation to Jetha Ram, which we quantify as Rs. 75,000/-. Keeping in view all facts and circumstances of the case, keeping in view act of both the parties, financial condition of the accused persons and the complainant party, we consider it appropriate to direct the appellants to pay a sum of Rs. 75,000/-in lump sum as compensation to Jetha Ram. On 29.5.2000, a statement was made by both the learned counsel for the appellants that a Bank Draft of Rs. 75,000/- in the name of Jetha Ram s/o Bhera Ram, payable on behalf of the appellants shall be kept ready. It has been produced today. Two Bank Drafts are produced today. Two Bank Drafts are produced today.
(29). In view of the aforesaid, both the appeals are partly allowed as follows:
i. The conviction of the appellants for The offence u/s. 302/149 is converted into the offence under sec. 304 Part II IPC and they are awarded the sentence for the period already undergone;
ii. The conviction and sentence awarded to the appellants for the offences u/ss. 148, 447, 307/149, 324/149, 323 and 324 IPC is maintained and the sentence is reduced to the period already undergone;
iii. The appellants are directed to pay compensation in accordance with the provisions of Section 357 (3) and (4) of The Code of Criminal Procedure to the tune of Rs. 75,000/-, payable to son of deceased Bhera Ram, namely Jetha Ram. The appellants have produced two Demand Drafts of the State Bank of India dated 29.5.2000, one for Rs. 25,150/- bearing D.D. No. OL/168083 -- 000002000 and second for Rs. 49850/- bearing D.D. No. OL/168084- 000002000, which have been handed-over in the Court to Jetha Ram son of Bhera Ram, identified by Mr. Rajesh Vyas, Advocate.
iv. The bail bonds furnished by each of the appellants stand discharged.