Rajasthan High Court - Jaipur
Siv Narain And Ors. vs State Of Rajasthan on 15 January, 1986
Equivalent citations: 1986(2)WLN536
JUDGMENT Farooq Hasan, J.
1. The Addl. Sessions Judge, Baran in Sessions Case No. 64/74 convicted the accused-appellants under Section 326, 326/34 324 and 324/34, IPC and sentenced them to various terms of imprisonment as mentioned in his judgment. Aggrieved by this order of conviction the present appellants have filed this appeal.
2. The brief facts giving rise to this appeal are that there was a dispute between the complainant party on the one hand and the accused party on the other in respect of possession of the field bearing Khasra numbers 1471 and 1474 situated in village Patunda. The above fields are known by the name of Hirapuri. Attached to this land in the northern side there is a small piece of another land which is known as Kankar. A part of this Kankar land is said to have been in possession of the complainant party. On 3-7-1973 the complainant party sent three Halies in the morning to plough the above land known as Hirapuri. The accused persons did not allow the Halies to plough the land. The Halies returned back and informed the complainant party about the refusal by the accused persons in ploughing the fields. In the same after-noon the complainant party consisting of three brothers, Shantilal, Sankal Chand and Bansilal went to the above field along with the above three Halies, namely Mathuralal, Ganeshram and Chotulal. It is alleged .that the accused persons also arrived at the field duly armed with guns and Kutiyas. When the complainant party wanted to plough the disputed land, it is alleged that the accused persons started assaulting the complainant party. The accused Pushpa Dayal alias Ramdayal is alleged to have aimed the gun at PW 1 Shantiilal and pressed strigger but the gun did not come of on account of lack of ignition, because the gun was a muzzle loading gun. It has been further alleged that the accused persons caused injuries to Shantilal, Sankalchand and Bansilal by Kutiyas. The injuries received by Sankalchand were found to be caused by sharp edged weapon and one of the injuries was grievous in nature being fracture of the skull bone on right side of frontal and parietal bones. The injuries received by other two brothers were found to be simple in nature caused by both sharp and blunt weapons.
3, On receiving the said report, investigation was completed and the accused persons were challaned for the commission of offences under Sections 326, 324, 307 read with Section 34, IPC. Accused Ramdayal has been charged for the attempt to commit murder of Shantilal by aiming the gun at him, while accused Shivnarain has been charged for causing injuries to Bansilal by sharp edged weapon and accused Ramchandra has been charged for causing grievous injury to Sankal Chand by sharp edged weapon. The accused persons have also been charged under Section 326, 324 and 307, IPC with the aid of Section 34, IPC.
4. The accused appellants denied the charges and claimed trial. 16 witnesses in all have been produced from the side of the prosecution Statements of the accused persons under Section 313, Cr.PC were recorded, who denied the allegations levelled against them, and it was stated by them that the field in dispute was in their possession and the complainant party wanted to dispossess them and in doing so the complainant party gave beating to the accused persons. The accused persons also sustained injuries. It has been further stated by the accused persons that a revenue suit was filed by the complainant party, wherein their request for temporary injunction was rejected, and it was observed by the revenue court that the land in dispute is in possession of the accused party. It has been further stated by the accused persons that in the light of the aforesaid circumstances a right of private defence of property and person had accrued to them.
5. The learned Additional Sessions Judge, Baran after considering arguments of both the parties found the accused, appellants guilty under various sections of the Indian Penal Code and sentenced them as stated above.
6. I have heard arguments and perused the record.
7. Looking to the facts and circumstances of this case, it is clear that the incident occurred due to the dispute of agricultural land. It is also apparent on the face of record that both the accused and the complainant party sustained injuries. It is also an admitted position that the injuries were sustained by Sankal Chand and one of the injuries was grievous in nature caused by sharp edged weapon. On the other hand, accused Ramchandra also sustained injuries one of which was grievous in nature and that was on his head. Therefore, it has become more important to note as to which of the two parties was in possession of the disputed land on the day of occurrence. If this point is not decided in favour of the complainant party, then what will be its effect on the prosecution story is to be seen by this court. After a long discussion on this point and considering the evidence of both the parties on the question of possession the learned Additional Sessions Judge came to the conclusion that no doubt the evidence produced in support of the complainant party that they have some time in the past been in actual possession of the disputed land, but still more evidence was required in respect of their claim of possession at the time when the present incident took place. The learned Addl. Sessions Judge further concluded that the dispute had arisen between the parties about the possession of land which forced the complainant party to go to the revenue court against the accused persons. It has also been admitted by the learned Additional Sessions Judge that the Revenue Court did not admit the case of the complainant party and refused to issue interim injunction against the accused persons. The learned Additional Sessions Judge was wrong in holding that the refusal of interim injunction does not mean that the complainant party was not in possession of the disputed /and, because while deciding an application for temporary injunction in a suit the revenue courts also have to see the prima facie case of the person filing the suit. While considering the prima facie case of the parties, the Court has to consider the possession and in deciding the application of temporary injunction actual physical possession is to be seen by the revenue courts and on the basis of that possession the case is to be decided in favour of either party. In the instant case before me, it has not been disputed that the application for issue of temporary injunction filed by the complainant party was dismissed by the revenue court vide its order (Ex. D 12), wherein it has been observed that the accused persons were in possession of the disputed field and so the temporary injunction issued in favour of the complainant party was not confirmed and their application for issue of temporary injunction was rejected. An appeal against this order (Ex. D 12) of the Assistant Collector, Baran was filed by the Revenue Appellate Authority who in that appeal ordered that status quo be maintained. By this order, it cannot be inferred that the Revenue Appellate Authority did examine the point of possession while issuing the order of status quo. From this order of status quo, it will be observed that the intention of the Revenue Appellate Authority in passing the order of status quo was that the possession of the person shall remain in tact. The observation of the Assistant Collector with regard to the possession shall continue to be followed until the finding is set aside by any superior court. In the instant case, the learned Additional Sessions Judge in unambiguous terms held that the complainant party failed to give any direct evidence in respect of their claim for possession on the disputed land on the day of incident and it was observed: "It was necessary for the purpose to prove their settled ^possession with the aid of relevant evidence about such possession at the time of alleged incident. In the absence from both the sides in this regard the only situation which emerges is that both the parties had been claiming possession over the disputed land and a hot controveersy had arisen on account of such rival claims. On the evidence which has been put on the record of this case, it is difficult to form an opinion about physical possession over the land with any firmness in favour of either of the parties. Looking to the said observations, it is clear that the learned Addl. Sessions Judge was in doubt about the possession of the complainant party on the disputed field on the day of incident. I am of the opinion that the learned Additional Sessions Judge completely ignored the observations made by the Assistant Collector, Baran while rejecting the application of temporary injunction of the complainant party. As stated earlier, these observations of the Assistant Collector are binding on a criminal court till that order in which these observations were made is not set aside by a competent court. I am also of the opinion that the order of status quo passed by the Revenue Appellate Authority did not at all affect the observations made by the Assistant Collector in the order (Ex. D 12). Therefore, the learned Additional Sessions Judge committed an error in holding that the balance of evidence tilts in favour of the complainant party and not the accused persons. In these circumstances, when it is observed that the accused persons were in possession of the disputed land on the day of incident, they definitely had a right to protect their possession and it can be concluded that a right to defend the property had accrued to the accused persons.
8. The learned Additional Sessions Judge has observed that the incident had arisen out of the desire of the both the parties to establish their respective claims of possession. The accused persons bad a point in their favour from the order of the Assistant Collector, Baran. The complainant party wanted to assert actual physical possession on the land under the strength of the order of Revenue Appellate Authority (Ex. P 22). This attempt on the part of the rival parties for actual possession has resulted into the presented incident. It is thus, clear that the learned Additional Sessions Judge was not certain about the actual possession of the complainant party on the disputed land and merely on surmises and presumptions he has observed that the balance of evidence on record tilts in favour of the complainant party regarding the possession over the disputed land. The learned Additional Sessions Judge accepted the version of the prosecution in this regard that it were the accused persons who were the first to assault the complainant party. It is an admitted fact that the complainant party first sent their Halies PW 9 Ganesh Ram, PW 10 Mathura and PW 11 Chotu Lal to plough the disputed land. The accused persons prevented them from doing so in consequence of which the three labourers returned to the complainant party and narrated what had been said to them by the accused persons. On this the three complainant brothers accompanied the Halies to the disputed field where the accused persons were present, who did not allow them to plough the land. From this evidence it is clear that the accused party was there on the disputed field when the Halies of the complainant party and subsequently the Halies and the complainant brothers went to the disputed field to plough the same. This much is also clear that the complainant brothers knew in advance that the accused persons had restrained their Halies in ploughing the disputed field and their Halies had come back. Therefore, it is also doubtful as to whether the complainant party was justified in going to the disputed field in order to plough the same. From this action of the complainant brothers, it can be inferred that the complainant brothers were in a mood of fight, otherwise they could have avoided the same and could have approached the authorities for making complainant against the accused persons for their wrongful act, but instead of doing so the complainant party took the risk of fight. This shows the adamancy of the complainant party. Therefore, the learned Additional Sessions Judge was wrong in holding that the presence of the complainant party on the disputed lands was legal and justified.
9. One more aspect which makes the prosecution story doubtful is that the prosecution witnesses did not tell the whole truth. PW 9 Ganesh Ram and PW 10 Mathura have clearly stated that the complainant brothers had sent them in the morning to plough the disputed field known as Hirapuri. ! hey have admitted that the land known as Hirapuri is clearly distinct at the site from the adjacent field known as Kankar. PW 10 Mathura has stated in unambiguous terms that the incident had taken place in the field known as Hirapuri. In the FIR (Ex. P 13) also the incident is shown to have taken place at the field known as Hirapuri. This report was lodged by PW 1 Shanti Lal. According to the FIR, and the statements of PW 9 Ganesh Ram and PW 10 Mathura, it is clear that the incident took place on the field known as Hirapuri, but the three complainant brothers, PW 1 Shanti Lai, PW 7 Bansi Lal and PW 8 Sankal Chand attempted to give a little different turn to the story by stating that they had sent their labourers to plough the field known as Kankar and not the field known as Hirapuri. They also went to the extent to state that the incident had taken place in the field known as Kankar and not the field known as Hirapuri. In cross-examination, PW 7 Bansi Lal had to admit that the accused persons had prevented them from plouging the field about which litigation was pending between them. It is thus clear that PW 1 Shanti Lai, PW 7 Bansi Lal and PW 8 Sankal Chand tried to change the place of occurrence in their statements before the Court, and this was due to the fact that witnesses were conscious that they will not be in a position to prove possession over the field known as Hirapuri, which is shown as the place of occurrence in the FIR, and their statements recorded during the course of investigation. There was no dispute in between the parties over the field known as Kankar and that was the reason that PW 1 Shanti Lai, PW 7 Bansi Lal and PW 8 Sankalchand tried to prove that the occurrence took place in the field known as Kankar. This shows the weakness of the complainant version. The police statements have been disowned by the witnesses before the trial court. It is just possible that by this change the complainant brothers wanted to give an impression to the court that because of the resistence of the accused persons they left the idea of cultivating the field known as Hirapuri, and they went to plough the field known as Kankar. This version of PW 1 Sbantilal, PW 7 Bansilal and PW 8 Sankalchand has been disbelieved by the learned Addl. Sessions Judge, but he still concluded that the fight took place in the field known as Hirapuri, and the act of the accused was wrongful in resisting the complainant party. I fail to understand that at the trial when the prosecution version was that the occurrence took place at the field known as Kankar, then how and why the occurrence can be said to have taken place at the field known as Hirapuri. Because of this contradiction the version of the accused persons becomes more probable, because they have specifically alleged and mentioned that the occurrence took place at the field known as Hirapuri about which litigation is pending in the revenue courts. It has been alleged by the accused persons that their presence at the disputed field was peaceful, as is clear from the circumstances that in the morning they did not assault the labourers of the complainant party. The accused persons were not intending from the very start to make any fight or any assault, because they did not even abuse the labourers sent by the complainant brothers. It is an admitted fact that the accused persons also sustained injuries which are proved by the existence of injury reports Ex. DA, Ex D 5 and Ex D 6, and because of these injuries an inference can be drawn that the complainant party went on the field after making preparations for the fight, otherwise there was no occasion for the accused persons to have sustained injuries on their person, if the complainant party would have gone unarmed.
10. The learned and Addl. Sessions Judge admitted that PW l Shanti Lai, PW 7 Bansilal PW 8 Sankalchand were not all the time very peacful and restraint in their action. The very fact that they also caused injuries to the accused persons, which are proved by Medical Officer Dr. Gupta suggests that the complainant brothers had also used force against the accused persons. This use of force was not minor in nature in as much as accused Ramchandra received a grievous injury. The prosecution witnesses failed to explain the injuries sustained by the accused persons which shows that they were attempting to withhold the whole truth specially the aggressive part played by them. Looking to the injuries on the person of the accused persons and the injuries sustained by PW I Shantilal, PW 7 Bansilal and PW 8 Sankalchand it is not clear that which party initiated the assault, and because of this uncertainty it cannot be held that it was the accused party which initiated the assault on the complainant party. The learned Addl. Sessions Judge was wrong in holding that the accused party initiated the assault. On the other hand, he concluded that PW 1 Shantilal, PW 7 Bansilal & PW 8 Sankalchand had caused injuries to the accused persons in exercise of their right of private defence or not is a question not required to be considered and determined in this case. He simply observed that the probabilities were not in favour of the accused persons and they were not justified causing injuries to the complainant party in the exercise of their right of private defence.
11. Looking to the entire evidence of the prosecution, it appears that the prosecution witnesses have given a false version on various points. The prosecution witnesses have further been found untruthful when they say that accused Pushpa Dayal had pressed the trigger of a gun aimed of PW l Shantilal. The prosecution witnesses further failed to explain the injuries sustained by the accused persons. Looking to the injuries sustained by the accused persons, there was a reasonable apprehension in the mind of the accused persons that they will be seriously assaulted by the complainant party, and because of his there was a possibility to defend the person and property of the accused.
12. From the above discussion, I am of the opinion that right of private defence of property and person had accrued to the accused persons and they cannot be held responsible for the injuries sustained by the complainant party. Injuries sustained by both the parties are to a large extent similar in nature, and as such it cannot be said that the accused persons had exceeded their right of private defence.
13. In the result, I accept the appeal and set aside the order of conviction and sentence passed by the learned Additional Sessions Judge, Baran. The accused-appellants, Shiv Narain, Pushpa Dayal alias Ram Dayal and Ram Chandra, are acquitted of all the charges levelled against them. They are on bail and need not surrender. Their bail bonds are cancelled.