Rajasthan High Court - Jaipur
Poorana Ram And Ors. vs State Of Rajasthan on 9 December, 1986
Equivalent citations: 1987WLN(UC)46
JUDGMENT S.S Byas, J.
1. The appeal is directed against the judgment of the learded Additional Sessions Judge, Nohar dated September 1, 1981, by which the three appellants Poorana Ram. Begha Ram and Dula Ram were convicted under Section 302/34, IPC and each was sentenced to imprisonment for life along with a fine of Rs. 1000/-, in default of the payment of fine to further undergo six month's simple imprisonment. Accused Begha Ram was also convicted under Section 323, IPC but instead of being sentenced to any punishment, he was let off on six months, probation of good conduct.
2. Succinctly stated, the prosecution case is that PW 1 Bagiya and PW 2 Mukangir are the brothers of the deceased-victim Phoolgir. They have three more brothers by name Malgir, Heeragir and Arjungir. Malgir was allotted agricultural land in Rohi (Jungle) of their village Bannasar P.S. Pallu district Sri Ganganagar. This land of allotment has been shown by marks 1 and 4 in site plan Ex. P 3. They had sown Gawar crop in the portion shown by mark 1 in the month of July, 1980. At about 7.00 a.m. on August 7, 1980, PW 2 Mukangir and Phoolgir went to the aforesaid field with two camel ploughs to sow Gawar in the portion shown by mark '4' in the site plan. They had taken one camel calf with them. At about 9.00 a.m. when they were ploughing the portion '4', the camel-calf stranded in the portion shown by mark '1' in site plan Ex. P 3. Mukangir (PW 2) went in the portion '1' to bring back the calf-camel. The three appellants accompanied with the two women (one being the wife of appellants Dullaram and the other being the wife of appellant Begaram) came to him. Begaram and Dullaram had Kasiyas, Pooranaram had an axe, the wife of Begaram had a Jayee and the wife of Dullaram had a lathi. Accused Dullaram and Begaram struck blow to Mukangir with their Kasiyas. Mukangir raised alarm and his brother Phoolgir came to his rescue. Phoolgir asked the appellants as to why they were beating Mukangir. Thereupon the appellants left Mukangir and diverted their assault on Phoolgir. They landed blows to him with axe and Kasiyas. Phoolgir fell down in the field. He was also landed blows by the two ladies. Mukangir (PW 2) escaped and mounting on a car went to his brother Baggir (PW 1) whom he found out-side the house of Ratiram Jat. Mukangir narrated the incident to Baggir and other persons who were sitting there. Baggir took PW 3 Ramchandra and some other persons and went to the spot. The party also took a camel-cart with them. They found Phoolgir lying unconscious with wounds bleeding. He was put in the camel-cart. While the party was taking Phoolgir to their village in the camel-cart, Phoolgir breathed his last in the way. Baggir went to Police Station, Pallu and lodged a report of the incident at about 1.30 p.m. on the same day. The police registered a case and proceeded with investigation. The Station House Officer Mohansingh PW 9 arrived at the place where the dead body of Phoolgir was lying. He prepared the inquest report and Panchnama of the victim's dead body. From there, he went to the site. He inspected the site and prepared the site plan and site inspection memo. He also seized blood-stained soil from there. The medico-legal autopsy of the victim's dead body was conducted by PW 6 Dr. Mrs. Sushila Chaudhary on the spot. The doctor noticed the following ante-mortem injuries on the victim's dead body:
External (1) Incised wound 3" x 1/2" x 1" on scalp 1-1/2" above right mastoid process;
(2) Incised wound 2-1/2" x 1/2" x 1" on scalp 2" above right mastoid process;
(3) Incised wound 3-1/2" x 1/2" x 1" on scalp 2-1/2" above right mastiod process;
(4) Incised wound 2-1/2" x 1/2" x 1" on scalp 4" above right mastoid process;
(5) Incised wound 2" x 1/2" x 1-1/2" on scalp 5" above and posterior to right mastoid process; (6) Incised wound 3-1/2" x 3" x 1/2" x 1/4" on scalp 1" above injury No. 5;
(7) Incised wound 2-1/2" x 1/2" x 1/2" on scalp 1" posterior to injury No. 2;
(8) Incised wound 1" x 1/2" x 1/2" on scalp 4" above left mastoid process;
(9) Incised wound 2-1/2" x 1" x 1-1/2" on back of left shoulder joint;
(10) Incised wound 2" x 1" x 1/2" on back of left shoulder joint 1/2" medial to injury No. 9; (11) Incised wound 1" x 1/2" x 1/8" on right hand 2" above right wrist joint anteriorly; (12) Abrasion 2" x 1/2" on left elbow joint.
Internal Fractures of right frontal, parietal and occipital bones.
3. In the opinion of the doctor, the cause of death was shock caused by head injuries leading to brain damage. All the injuries except injury No. 12 were opined to have been caused by sharp-edged weapons. The post-mortem examination report prepared by the doctor is Ex. P 11. The injuries of PW 2 Mukangir were examined by Dr. (Mrs.) Sushila Chaudhary. One incised wound and one lacerated wound were found on his body as mentioned in the injury report Ex. P 12 The culprits were arrested and in consequence of the information furnished by accused Dullaram, Begaram and Poorna Ram, two Kasiyas and one axe were recovered. In consequence of the information furnished by accused Mst. Lichma, one lathi was recovered. At the time of the arrest of accused Dullaram, some injuries were found on his person. His injuries were got examined by a doctor. On the completion of the investigation, the police presented a challan against the appellants and the two ladies Mst. Prema and Mst. Lichma in the Court of the Judicial Magistrate, Nohar, who, in his turn, committed the case for trial to the Court of Sessions. The learned Additional Sessions Judge filmed charges under Sections 148, 302, 302/149, 323 and 323/149, IPC against all of them, to which they pleaded not guilty and claimed to be tried. In support of its case, the prosecution examined ten witnesses and filed "some documents. In defence, the accused examined one witness DW 1 Abdul Wahiz Patwari. The defence taken by the accused was that the portion shown by mark '1' in site plan Ex. P 3 was in their long, continuous and peaceful possession since 1967. They had sown the Gawar crop in it 3 on the day of the incident, the crop had grown-up to 12" in height. Except accused Dullaram, all of them denied their presence on the scene of the occurrence. They denied that they inflicted injuries to the deceased or his brother Mukangir. Accused Dullaram admitted his presence on the scene of the occurrence. In his statement recorded under Section 312, Cr. PC. he stated that the deceased and Mukangir came to forcibly up-root the crop standing in the portion shown by mark '1' in site plan Ex. P 3. They further wanted to unlawfully cultivate and sow the Gawar crop in it. They landed blow to him. In order to save himself from being beaten, he struck blows with his Kasiya to the deceased and Mukangir. On the conclusion of trial, the learned Sessions Judge recorded his findings as under:
(1) the prosecution had failed to prove that the disputed portion shown by mark '1' in site plan Ex. P 3, in which the incident had taken place, was in possession of the complainant party; (2) the two ladies (accused) were not present on the scene of the occurrence and took no part in the commission of the crime; and (3) the deceased Phoolgir was struck blows by the three appellants with axe and Kasiyas. They thereby caused his death. The assault on Phoolgir was joint and concerted with common intention to kill him.
4. As a result, the two lady accused were acquitted of the offence they were charged with. The appellants were also acquitted of the offence under Section 148, IPC. Accused Begaram was held individually liable for causing injuries to Mukangir. The appellants were held guilty under Section 302/34, IPC. They were consequently convicted and sentenced as mentioned at the wry out-set. Aggrieved against their conviction, they have taken this appeal. Accused Poorana Ram passed away during the pendency of the appeal. As such, the appeal, so far he is concerned, stands abated.
5. We have heard Mr. M.M. Singhvi learned counsel for the appellent and the learned Public Prosecutor Mr. Niyazuddin Khan. We have also gone through the case file carefully.
6. Mr. Singhvi learned counsel for the appellants did not challenge the opinion of Dr. (Mrs.) Sushila Chaudhary PW 6 about the cause of death of Phoolgir. The doctor has stated that the injuries found on the victim's dead body were sufficient in the ordinary course of nature to cause his death. We have gone through the testimony of Dr. (Mrs.) Sushila Chaudhary and find no reasons to distrust what she testified. The death of Phoolgir was, thus, homicidal in nature.
7. In assailing the conviction, the contention raised by Mr. Singhvi is that the disputed portion of the field shown by mark '1' was not in possession of the complainant party even according to the finding of the Sessions Judge. The appellants were, therefore, acquitted of the offence under Section 148, IPC. This portion was in long, continuous and peaceful possession of the appellants since 1967 when this portion was allotted to them. They had sown and raised the Gawar crop in this portion which was nearly 12" in height on the day of the incident. The deceased and PW 2 Mukangir had come to this portion with camel ploughs to up-root the standing crop and sow another crop. When they were asked not to do so by accused Dullaram, they landed blows to him. It was only thereafter that the appellants landed blows to the deceased and Mukangir. They had every right to do so in order to save their property, over which the deceased and Mukangir wanted to make their unlawful possession. The appellants were, therefore, justified in using the violence. Despite all these facts, the learned Sessions Judge declined to extend the right of private defence of property to the appellants. It was further argued shat the deceased and his brothers were quarrel-some persons who used to pick up quarrel with them of and on. Accused Poornaram filed a revenue suit in the Court of the Assistant Collector, Nohar in respect of this disputed portion & had obtained a temporary injunction against the complainant party long back on July 17, 1978. This temporary injunction was later on confirmed on January 21, 1980. It was in force on the day of the incident. The members of the complainant party even disregarded this temporary injunction. A complaint under Sections 447 & 427, IPC, was lodged against them by accused Begaram in July, 1980. The members of the complainant party were so aggressive that the police had to arrest them under Section 151, Cr. PC on August 1, 1980. The police had submitted a report under Section 107 Cr. PC against them in the Court of Executive Magistrate. It was argued that all these facts clearly reveal that complainant party was the aggressor as they wanted to take forcible possession over the disputed land.
8. Combating these contentions, it was argued by the learned Public Prosecutor that the deceased and PW 2 Mukangir went in the disputed portion to bring back their camel-calf. It was peaceful act on their part and the appellants had no occasion to use violence against them. No right of private defence of person or property was, therefore, available to the appellants. We have taken the respective submissions into consideration.
9. In order to dispose of the contentions raised before us, the following facts-in-issue arise for deliberation and decision:
(1) Whether the disputed portion shown by mark '1' in site plan Ex. P 3 was in possession of the appellants on the day of the incident? (2) Whether the deceased and PW 2 Mukangir went in this disputed portion with aggressive design to up-root the standing crop and to make forcible possession over it? and (3) Whether a right of private defence and property was available to the appellants and they were, therefore, justified in using the violence against Phoolgir so as to cause his death?
10. We may add here that the incident had admittedly taken place in the disputed portion shown by mark '1' in site plan Ex. P 3. There is, therefore, no need to discuss the evidence on this point.
11. The trial Court has recorded the finding that the portion shown by mark '1' in Ex. P 3 was in possession of the appellants on the day of the incident, but their possession was not the settled possession. As such, no right of defence of property was available to them. The finding is erroneous and contrary to the over-whelming documentry evidence adduced by the appellants.
12. According to the complainant party, Khasra No. 561, 126 of which the portion shown by mark '1' in site plan Ex. P 3 forms a part, was allotted to Malgir brother of the deceased and PW 2 Mukangir. Malgir has not been examined as a witness by the prosecution. He was the best witness to show whether any allotment was made in his favour and he continued to be in possession of the land at all the relevant times. No allotment order has been produced by the prosecution. The only documents produced by the prosecution are Ex P 34 and Ex. P 35. Ex. P 34 is the certified copy of Jamabandi and Ex. P 35 is the certified copy of Khasra Girdawari. No doubt, in these two documents, Malgir has been shown as the Khatedar tenant of Khasra No. 591/126. Ex. P 34 is of Samvat Year 2034 whereas Ex. P 35 is of Samvat Year 2035. Appellant Poorna Ram instituted a suit against Malgir for declaration and perpetual prohibitory injunction in respect of Asraji Khasra No. 591/126 comprising an area of 12 Bighas i.e. in respect of the portion shown by mark '1' in Ex. P 3. This suit was instituted on August 16, 1978. He applied for temporary injunction and the Assistant Collector issued temporary injunction on July 17, 1978 against Malgir restraining him from committing trespass in the aforesaid land. This temporary injunction was confirmed on January 21, 1980. The appellants have filed the certified copies of the plaint, order of temporary injunction and the order of the confirmation of the temporary injunction. These are public documents and no extingic evidence is required for their proof. They are self-proved documents. The Ghatna Bahi Ex. D 5 dated August 8. 1978 shows that the Patwari found the appellants in possession of the disputed portion of 12 Bighas shown by mark '1' in Ex. P 3. Thus, Malgir was restrained from committing trespass in the disputed land, which was in possession of the appellants. The Patwari recorded the possession of the appellants over the disputed portion of the land long back on August 8, 1978. These documents were not given due consideration by the trial Court.
13. Malgir and his; brothers including the deceased and PW 2 Mukangir continued to harass the appellants and made attempts from time to time to make unlawful possession over this disputed land. Appellant Bega Ram submitted an application under Section 107, Cr. PC before the S.H.O. Police Station, Pallu. The police, after making an investigation, arrested Malgir and other brothers of: the deceased and PW 2 Mukangir on July 31, 1980. Lateron, the police submitted a report against them before the S.D.M,, Nohar for initiation of proceedings under Section 107, Cr. PC. The learned S.D.M. (Executive), Nohar, by his order dated August; 1, 1980, issued notice to the members of the complainant party to show cause as to why they should be required to execute bonds to keep peace and not to comit trespass over the land in dispute. The appellants have filed the certified copies of the report of the police, order of the learned, Sub-Divisional Magistrate and arrested memos of the complainant party. These are again public documents and no extrinsic evidence is required for their proof. These documents show that the members of the complainant party were bent upon in taking unlawful possession over the land in dispute on July 31, 1980, i.e., a week before this incident. Appellant Bega Ram also lodged a complainant against Malgir and his brothers in the Court of Munsif and Judicial Magistrate on August 13, 1979 for offences under Sections 447 & 427, IPC. He also lodged a report at Police Station, Pallu on July 31, 1980. It was stated therein that the deceased Phoolgir and PW 2 Mukangir and their brothers committed trespass in the disputed portion of the land and tried to up-root the standing crop therein. The police registered a case under Sections 447 & 147, IPC. The appellants have filed the certified copies of the complaint and the First Information Report.
14. There is, thus, over-whelming evidence from the side of the accused persons that they were in possession of the land in dispute since long and their possession was peaceful and continuous Nothing more is required to establish the settled possession. The appellants had judicial orders in their favour in which their possession was accepted over the disputed portion of the land. Their's was the settled possession over the disputed land. The learned Sessions Judge failed to take the effect of these documents into consideration. It can be unhesitatingly said that the land, in which the incident took place, was in possession of the appellants since long and their possession was continuous and peaceful.
15. The prosecution case is that the deceased and PW 2 Mukangir were sowing the crop in the portion shown by mark '4' in Ex. P 3. They had two camel ploughs and one camel-calf with them. The camel-calf stranded in the portion shown by mark '1' in Ex. P. 3. When they went to bring back the camel-calf, they were assulted and belaboured by the appellants. The only witness speaking about the incident is PW 2 Mukangir. Accused Dulla Ram had also sustained injuries, vide injury report Ex. D 3 proved by Dr. (Mst.) Sushila Chaudhary (PW 6). Mukangir has not explained how accused Dulla Ram sustained these injuries. Apart from that, the story stated by him that he and the deceased went to bring back stranded camel-calf, does not stand to logic and reason. The story stated by him is not probable. If the deceased and PW 2 Mukangir went unarmed to bring back their camel-calf, there was no occasion for the appellants to take up arms and use violence against them. The prosecution story is to be judged in the context of the circumstances preceding the incident. On July 31, 1980, i.e., a week before, the members of the complainant party had tried to commit breach of peace and in wanted to take unlawful possession over the disputed portion '1' in Ex. P 3. The police had to arrest them under Section 151, Cr. PC in order to prevent the commission of the crimes. That shows that the deceased and his brothers were turbulent and trouble-shooters. Perceived with this back ground of the taking place of the incident on that day what appears to be that the deceased and the PW 2 Mukangir went to up-root the standing crop of the accused persons in portion shows by mark '1' infix. P 3. They were naturally resisted by the appellants from damaging and up-rooting their crop. This resulted in the use of violence. It is, thus the deceased and PW 2 Mukangir who are primarily responsible for inviting the trouble. Had they not gone in the disputed portion shown by mark '1' in Ex. P 3, the incident would not have taken place.
16. The pertinent question which, therefore, arises for decision is whether in these circumstances a right of private defence of property was available to the appellants and they were justified in using violence against the deceased Poolgir so as to cause his death? Now, a right of private defence: whether of person or property as two facts, viz., (1) it may constitute a complete defence under Section 96; and (2) it may reduce the gravity of the offence under Exception (2) of section 300, IPC. In order to constitute complete defence, it must be shown that the violence was used within the restriction and paramaters contained in Sections 97 to 106 of the Penal Code. Section 103, IPC permits the causing of death to defend the property if the offence enumerated therein is being committed or attempted to be committed. Trespass to land is not one of such offences enumerated in Section 103 IPC. Section 104, IPC permits to cause any harm other than death in defending the property if criminal trespass is to be committed or attempted to be committed. In the instant case, the appellants were no doubt entitled to defend their possession over the land shown by mark '1' in Ex. P 3 and they were, therefore, entitled to use reasonable force against the deceased and Mukangir PW 2. The appellants inflicted as many as eleven injuries with sharp weapons. Some of the injuries were on vital parts of the deceased. The appellants, thus, exceeded their right of private defence. Their case is therefore, not governed by Section 302, IPC but falls within Exception (2) to Section 300, IPC. The offence made out would, therefore, be punishable under the First Part of Section 304, IPC. Baljitsingh and Ors. v. State of Uttar Pradesh furnishes a complete analogy, in which the facts involved were almost similar to that of the case in our hand.
17. In the result, the appeal of accused Begaram and Dullaram is partly allowed. Their conviction under Section 302/34, IPC is altered to that under the First Part of Section 304, read with Section 34, IPC and each of them is sentenced to seven years' rigorous imprisonment. The conviction of accused Begaram under Section 323, IPC is set aside. The appeal shall accordingly stand disposed of.