Rajasthan High Court - Jaipur
Himmata And Ors. vs State Of Rajasthan on 15 September, 1987
Equivalent citations: 1987WLN(UC)523
JUDGMENT Shyam Sunder Byas, J.
1. Since all these three appeals are directed against one and the same judgment of the learned Additional Sessions Judge, Jalore dated January 15, 1977, they were heard together and are disposed of by a common judgment. By the judgment aforesaid, the four appellants were convicted and sentenced as under:
S.No. Name of Accused Offence Under Section Sentence awarded (1) Himmata Ram 302, IPC Imprisonment for Life; 325/34, IPC Rigorous imprisonment for two years with a fine of Rs. 300; 323/34, IPC Rigorous imprisonment for one year; (2) Each of accused: (a) Smt. Jhumki 302/34, IPC Imprisonment for life; (b) Smt. Sharki (c) Deyram Das 325/34, IPC Rigorous imprisonment for two years with a fine of Rs. 300/-; 323/34, IPC Rigorous imprisonment for one year. 2. The sentences were directed to run concurrently.
3. Put briefly, the prosecution case is that Aaraji Khasra No. 157, known as Dhoom Badiya comprising an area approximately of forty Bighas, is situate in Mauja Saleri, Patwar Circle Bankli, Tehsil Aahore, District Jalore. It was in possession of the appellants since long before the incident. The deceased Durg Das owned half share in this field. But he was not allowed to cultivate it by the appellants. Durg Das approached the Patwari Mohan Das (PW 5) for help and requested him that he should use his good office to prevail over the appellants to allow him to cultivate his portion of the field At about 10.00 a.m. on August 23, 1976, Durg Das, his son Gopal Das (Prosecution Witness 2) and the Patwari Mohan Das (Prosecution Witness 5) went to the aforesaid field. They found the appellants working there. The Patwari asked the accused Himmatram as to why he was not allowing Durg Das to cultivate his portion of the field. When the Patwari started taking the measurements of the field, the appellants made an assault on Durg das and his son Gopal Das. The appellants were armed with lathies and they started striking blows to Durg Das and his son Gopal Das some how or other slipped away. As a result of beating, Durg das sustained multiple injuries and passed away instantaneously on the spot. Gopal Das reached Police Station, Jalore at about 8.00 p.m. on the same day and verbally lodged report Ex. D 1. Since the incident had taken place in the territorial jurisdiction of Police Station, Nosra Ex. D 1 was sent there with a special messenger. The police, Nosra registered a case and proceeded with the investigation. When the fact of Durg Das succumbing to the injuries came to the knowledge of the Station House Officer, P.S., Nosra, Section 302, IPC was added. The SHO Mehboob Khan arrived on the spot, inspected the site and prepared the inquest of the victim's dead body. The post-mortem examination of the dead body of Durgdas was conducted on August 25, 1976 by PW 1 Dr. Verma the then Medical Officer Incharge, Primary Health Centre, Aahore. The doctor noticed the following ante mortem injuries over the victim's dead body:
External (1) Lacerated wound 2" X 1/2" X bone deep over the anterior part of right Parietal area; (2) Lacerated wound 2" X 1" X bone deep over the posterior aspect of upper third of left fore-arm; (3) Lacerated wound 2" X 2" X bone deep, over the medical aspect of lower third of right fore-arm.
Internal (1)Depressed fracture 2" X 1" over the anterior part of right parietal bone depressed about 3/4";
(2) Fracture of lower third of right ulna.
4. In the opinion of Dr. Verma, the cause of death of Durg Das was coma due to depressed fracture of skull. The post-mortem examination report prepared by him is Ex. P 1. The injuries of Gopal Das were also examined on August 23, 1976 by PW 3, B.L. Rai, the then Medical Jurist General Hospital, Jalore. One lacerated wound and five contusions were found on his body. All these injuries except that on the left fore-arm were simple caused by blunt weapon. The X-ray examination revealed fracture of shaft of left ulna. The injury report prepared by the doctor is Ex. P 2. The appellants were arrested and some lathis were recovered in consequence of the informations furnished by them. The blood-stained clothes of the deceased were also seized and sealed. After when the investigation was over, the police presented a crime report against the appellants in the Court of the Judicial Magistrate, Jalore, who, in his turn, committed the case for trial to the Court of Sessions. The learned Sessions Judge framed charges under Sections 302, 302/34, 325, 325/34 and 323, IPC against all of them, to which they pleaded not guilty and faced the trial. The defence taken by the appellants was that the field, in which the incident had taken place, was in their continuous and peaceful possession since long and they were in possession of the field on the day of the incident. The deceased wanted to dispossess them and to take forcible possession over the field with the help of Patwari Mohan Das PW 5. Neither the Patwari nor Durg Das had any right to go to their (appellant's) field and to dispossess them. They were, therefore, entitled to use violence against the deceased and his son in order to turn out them from the field. They did not inflict more harm than necessary for the purpose of defence. In support of its case, the prosecution examined eight witnesses and filed some documents. In defence, no evidence was adduced. On the conclusion of the trial, the learned Sessions Judge held the charges duly established against the appellants. The learned Sessions Judge, no doubt, held that the field, in which the incident had taken place, was in possession of the appellants. But he refused to accept the appellant's plea of the right of private defence. The appellants were consequently convicted and sentenced, as mentioned at the very out-set. Aggrieved against their conviction, the appellants have taken these appeals.
5. We have heard Mr. M.M. Singhvi, learned Counsel for the appellants and the learned Public Prosecutor Mr. R.K. Soni. We have also gone through the case file carefully.
6. It was not disputed by Mr. Singhvi that the death of Durg Das was not homicidal. He, however, invited our attention to the statement of PW 1 Dr. Verma who, in his own examination-in-chief, stated that he was unable to express any opinion whether the injuries found over the victim's dead body could cause death or not.
7. In impeaching the conviction, it was contended by Mr. Singhvi that there is over-whelming material on record to show that Aaraji Khasra No. 157, in which the incident had taken place, was in possession of the appellants since along and even on the date of the incident, they were in possession of it. When the site was inspected by the police, Gwar and Bajri crops were found standing in it. The learned Sessions Judge has also recorded the finding that the field in dispute, in which the incident had taken place, was in the possession of the appellants on all relevant times including the day of incident. It was argued that since the appellants were in possession of the field in dispute and the deceased and his son along with the Patwari came to dispossess them unlawfully, they were entitled to use force against the deceased and his son. Defending one's own property is no crime and as such Section 34, IPC was wrongly brought into play by the trial Court. It was also argued that only three injuries were inflicted to the deceased and one of them was found fatal. It is not known as to who was the auther of this fatal injury. Since Section 34, IPC is not applicable and it is not known as to who of the appellants was the author of the fatal injury to the deceased, none of them can be convicted under Section 34, IPC. Reliance in support of the contention was placed on State of Bihar v. Nathu and Ors. AIR 1970 SC 47) and M.P. Jolly v. State of Punjab AIR 1979 SC 377).
8. Countering these contentions, it was argued by the learned Public Prosecutor that the deceased and his son had taken the Patwari to the field in dispute so that the matter may be amicably settled. The finding of the trial court that the appellants were in possession of the field in dispute was also not correct. The learned Public Prosecutor strived his best to support the judgment of the trial Court. We have taken the respective submissions into consideration.
9. Admittedly, the incident had taken on account of the dispute of possession over Aaraji Khasra No. 157. The appellants had taken the specific plea of exercising the right of private defence of property. It was contended by them through-out that the field in dispute, in which the incident had taken place, was in their continuous and peaceful possession since long and it was they who had cultivated it in July, 1976. The Bajri and Gwar crops, standing in the field, were sown by them.
10. Now, in cases of fight for possession, the test of criminality is: was the accused in possession or not at the time when the alleged offence was committed ? In case of private defence of property, the question as to who was in actual possession is of paramount importance. A person in possession can maintain his possession and resist by force any attack made on it. Criminal trespass is one of the offences specified, against which there is a right of private defence available to an accused under clause 2ndly of Section 97, IPC.
11. In the instant case, there is over-whelming material on record to show that it was the accused party which was in actual physical possession of the field (Aaraji Khasra No. 157). The appellants had sown Bajri and Gwar crops, which were found standing in the field when the site was inspected by the Investigating Officer. PW 2 Gopal Das, who is the son of the deceased-victim, stated in his examination-in-chief itself that he and his father had gone to the field in dispute to take possession. Of course, he added that it was in pursuance to the order of the Tehsildar. The order of the Tehsildar has not been filed by the prosecution. Thus, even according to PW 2 Gopal Das, it was the accused-party who was in possession of the field in dispute when the incident had taken place. The deceased Durg Das was not in possession of this field. PW 4 Heera also stated in his examination-in-chief itself that the appellants were in possession of the field in dispute and they were cultivating it. In his cross-examination he admitted that he had never seen the deceased Durg Das and his son Gopal Das cultivating this field at any time. PW 5 Mohan Das, who was Patwari, admitted in his cross-examination that he had never seen the deceased Durg Das and his son Gopal Das cultivating this field. He also admitted that the field never remained in the possession of Durg Das and Gopal Das. He further admitted that they were the appellants who had sown the Bajri and Gwar crops in the field in 1976 the year of the incident. He again admitted that the deceased Durg Das and his son Gopal Das did not and do not live in village Salri in the Mauja of which is situate Aaraji Khasra No. 157. PW 6 Mool Singh, who is the Sarpanch, admitted in his cross-examination. "..." That is to say, Durgdas and his son Gopaldas (PW 2) never cultivated this field, were never in possession of it and it was the appellants-party who was in continuous and peaceful possession of it.
12. On review of the material on record, we agree with the finding of the court below that the deceased and his son were never in possession of this field. The field, in which the incident had taken place, was in continuous and peaceful possession of the appellants.
13. Since the field, in which the incident had taken place, was in possession of the appellants and the deceased Durg Das and his son Gopal Das (PW 2) went there to take possession over it, the appellants had every right to use force to turn away the deceased and his son from the field. Every person is entitled to defend his property against criminal trespass by another and he can use force and violence in defending his property. Section 97, IPC grants him this right. The appellants were, therefore, entitled to use force and violence against the deceased Durg Das and his son Gopal Das (PW 2).
96 IPC declares that an act done in the exercise of the right of private defence - person or property - is not an offence. Section 97, IPC gives the right of private defence against certain specified offence including criminal trespass. Section 97 lays down that every person has a right subject to the restrictions contained in Section 99, IPC. Thus, Sections 97 and 99, IPC are to be read together. The fourth paragraph of Section 99, IPC lays down that the right of private defence whether of person or property - in no case, extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. In a case where more harm than it is necessary is inflicted, the accused exceeds the right given to him by the law. In such a case if the death is caused of the trespasser, the assailant cannot be convicted under Section 302 but only under Section 304, IPC. Exception (2) of Section 300, IPC lays down this principle. Section 104, IPC permits the assailant to the voluntarily causing of any harm other than death if the case is not covered by Section 103, IPC. Thus, injuries - simple or grievous, can be caused to a criminal trespasser by the assailant to defend his possession over the property.
15. It was argued by Mr. Singhvi that PW 2 Gopal Das sustained some injuries - one of which was the fractures of left ulna. PW 2 Gopal Das was a trespasser who along with his father Durg Das went to the field in dispute to forcibly dispossess the appellants. The appellants were, therefore, within the right and within the permitted restrictions to inflict injuries to Gopal Das - simple or grievous - to defend their possession over the field in dispute. The contention of Mr. Singhvi has considerable force. PW 2 Gopal Das went with his father Durg Das to the field in dispute to take possession over it with help of the Patwari. The Patwari was not authorised to render any help by dispossessing the appellants and delivering the possession to the deceased and Gopal Das (PW 2), The appellants, therefore, acted within the permitted parameters in causing injuries to Gopal Das PW 2. The harm caused by them was not more than necessary for the purpose of defence of the property. The convictions of the appellants under Sections 323 and 325 simpliciter or with the aid of Section 34, IPC are, therefore, erroneous and cannot be maintained.
16. So far causing the death of Durg Das is concerned, it was argued by Mr. Singhvi that the author of the fatal blow, which resulted in his death, cannot be ascertained from the evidence of the ocular witnesses. Since the appellants were defending their possession over the field in dispute, Section 34, IPC cannot be invoked to convict them under Section 302, IPC. In such a case, where Section 34, IPC is not applicable, the prosecution must prove as to which of the assailants caused the death. If that cannot be ascertained, none can be convicted under Section 302, with the aid of Section 34, IPC. Reliance in support of the contention was placed on State of Bihar v. Nathu Pandey (supra). The contention of the learned Public Prosecutor is that the court below was justified in applying Section 34 for convicting the appellants under Section 302, IPC.
17. Section 34, IPC speaks of a criminal offence done by several persons in furtherance of the common intention. Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence-person or property. Defending one's property is no offence under any law. As such, Section 34, IPC is inapplicable to the accused persons, who are lawfully engaged in exercising their right of private defence of their property. The conviction of the appellants under Section 302 read with Section 34, IPC is therefore, erroneous and unsustainable. However, if any of the accused persons exceeds the right of private defence and causes death, he alone can be said to have exceeded the right of private defence. In such a case, the identity of that person among the assailants must be ascertained and pointed-out by the prosecution. If the identity of that person cannot be ascertained, none can be convicted under Section 302, IPC. This was the principle laid down in the case of State of Bihar v. Nathu Pandey (supra).
18. Here in the instant case, it cannot be ascertained as to who caused the fatal blow to the deceased Durg Das. According to Dr. Verma PW 1, injury No. 1 could cause the death, though he was not sure and positive on his opinion. The deceased was inflicted three injuries in all one on the head, the other on the left-arm and the third on the right fore-arm. Injuries No. 2 and 3 on the left and right fore-arms could not cause death. It was, therefore, incumbent on the prosecution to show that injury No. 1 was caused by accused Himmta Ram, who has been convicted under Section 302, IPC.
19. Unfortunately, the evidence of the ocular witnesses is imperfect and laconic. PW 2 Gopal Das, who is the son of the deceased-victim Durg Das and who was also injured in this incident, did not state that it was accused Himmta Ram who had inflicted injury on the head of his father Durg Das. PW 4 Heera simply stated that the appellants gave beatings to Durg Das. PW 5 Mohan Das Patwari, of course, stated that was it accused Himmta Ram who struck a blow of Lathi on the head of Durg Das. Unfortunately, in the memorandum Ex. P 8, which he wrote down on the very day of the incident in his Ghanta Bahi (Daily Record of Incident) he did not mention that it was accused Himmta Ram who had inflicted a blow of Lathi on the head of Durg Das. His memory was fresh when he recorded Ex. P 8 in his Daily Book. The omission of this essential fact in Ex. P 8 shows that what he stated in the Court long after the incident cannot be accepted as true. In view of this conflicting evidence of the eye-witnesses, we are unable to maintain the finding of the Court below that it was accused Himmta Ram who had struck a blow of Lathi on the head of deceased Durg Das, From the evidence of the three ocular witnesses, viz., PW 2 Gopal Das PW 4 Heera and PW 5 Mohan Das Patwari, it cannot be said with certainty that it was accused Himmta Ram who had inflicted the injury on the head of the deceased Durg Das. The conviction of accused Himmta Ram under Section 302, IPC is, therefore, not justified. We have also held above that Section 34, IPC is not applicable. As such, the appellants cannot be convicted under Section 302 read with Section 34, IPC.
20. In the result, the appeals are allowed. The convictions of accused Himmta Ram under Sections 302, 325/34 and 323/34 and the convictions of the remaining three accused Smt. Jhumki, Smt. Sharki and Deyram Das under Sections 302/34, 325/34 and 323/34, IPC and the sentences passed thereunder, are set-aside. They are acquitted of the said offences. They are already on bail and need not surrender. Their bail bonds shall stand cancelled.
21. The appeals shall stand accordingly disposed of.