Raghubar & Others vs State Of U.P. on 27 May, 2014

[Cites 26, Cited by 1]

Allahabad High Court

Raghubar & Others vs State Of U.P. on 27 May, 2014

(Delivered by Hon'ble V.K. Shukla,J.) Present criminal appeal is directed against the judgement and order dated 26th July, 1995 passed by learned 9th A.D.J. Meerut Shri Chintamani Dungarkoti in ST No.668 of 1986 State vs. Raghubar and others thereby convicting and sentencing the applicants, U/s 302/149 I.P.C. to undergo life imprisonment with fine of Rs.2000.00, each and in case of default in depositing the fine to undergo 6 months R.I., under Section 323/149 of I.P.C. to undergo one year R.I. with fine of Rs.1000.00 each and in case of default to undergo 6 months R.I. under section 147 I.P.C. to undergo 1 year R.I. with fine of Rs.1000.00 each and in case of default to undergo 6 months R.I. and U/s 148 I.P.C. to undergo 1 year R.I. with fine of Rs. 1000.00 each and in case of default to undergo 6 months R.I. Brief background of the case is that Balveer Singh s/o Mangat R/o Baghu Police Station Baghpat, District Meerut, on 20th July 1984 at 2:05 pm, has proceeded to lodge First Information Report against Munshi, Raghubar, Premi, Mahendra, Krishna Pal, Rishpal and Teji all resident of village Baghu, P.S. Baghpat, District Meerut mentioning therein that he has a chak situated at the southern road side that leads to Baghpat and of the the said land in question fictitious sale deed in question has been got executed and based on the said sale deed in question, an attempt is being made to take illegal possession of the said property in question that is continuously in their possession and is being irrigated by them. It was also mentioned that about two years back they had disturbed their crops and even this year on 13th July, 1984 unlawful assembly was formed and they tried to take possession and then police had prevented them and on 20 July, 1984 at about 10 a.m. when his uncle Ram Singh and Duli Chand were ploughing the said field and his mother phoolmati and his sister Rampali had came to the field with the food while he was settling the ridges alongwith Mahendra, then at the said point of time, Munshi armed with ballam, Raghubar armed with lathi, Premi armed with balkati and Mahendra, Krishnapal, Rishipal and Teji armed with lathi and ballam came and after abusing his uncle, started beating him and when the informant and Mahendra rushed to save him, then Ram Singh took away the ballam of Munshi and Duli Chand took away the lathi of Raghubar and saved themselves and various persons after hearing the noise came on the scene, then thereafter all these persons escaped from the spot and his uncle Duli Chand was lying dead and his uncle Ram Singh, mother and sister were in precarious condition and with great difficulty he has proceeded to lodge First Information Report.

After the First Information Report has been lodged, the injured were taken to hospital and at hospital phoolmati and Ram Singh were examined and following injuries were found on their body Examination of Phool Wati Examined Phool Wati aged about 55 yrs w/o Maugat? R/o Baghu P.S Baghpat (Meerut) B/B C.P. No. 76 Khem Singh P/S Baghpat (Meerut) and .......... the following at 8.30 PM dated 20.7.84 M.I. Mole on lt. Cheek 1-1/4 cm below mid of lt. Eye INJ-

1. Semicircular lacerated wound 3 ½ x cm x ½ cm x skin deep on outer side Lt. Fore arm 5 cm above Lt. Wrist clotted blood in and around the wound present.

2. Lacerated wound 2cm x ½ cm x skin deep on outer side Lt. elbow joint. Clotted blood in and around the wound present.

3. Contusion 10 cm x 8 cm on upper and ........... Rt. upper arm 9 cm above Rt. elbow joint red in colour.

4. Contusion 14 cm x 2 cm on lower part of back and upper part of Rt. hip oblique, crossing mid line. Oblique.

5. Contusion 13 cm x 6 cm on lt. Thigh upper and outer 24 cm above Lt. Knee joint red in colour. C/o pain on ........ of chest but no ..... mark of Inj. Seen.

6. Lacerated wound 1 ½ cm x ½ cm x skin deep on back of Rt. hand .................... 2 cm below Rt. wrist joint.

All INJ caused by blunt weapon and simple.

Duration about ½ day old.

Sd/ illegible 					          Sd/ illegible 
 
   20.7.84						 20.7.84
 
 MEDICAL OFFICER 			                MEDICAL OFFICER 
 
P.H.C. BAGHPAT MEERUT			P.H.C. BAGHPAT MEERUT
 

 

 
Attested.
 
R.T.I.
 
Phootwati 
 

 

 
Examination of Ram Singh

Examined Ram Singh aged about 85 yrs S/o Hardeva (Paper torn) Baghu P.S. Baghpat (Meerut) B/B C.P. No. 76 Khem Singh P/S Baghpat (Meerut) and found? the following at 8.05 PM dated 20.7.84 M.I. Mole mid and medial Lt. Chest 8 cm medial to Lt. Nipple.

INJ-

1. Contusion 12 cm x 8 cm on Rt. upper arm mid & outer 9 cm below tip of Rt. shoulder .... Tr. Swelling around the Rt. upper ...... mid red in colour. There is fracture of Rt. Humerus Bone.

2. Six contusion in area of 22 cm x 22 cm on both side back 10 cm below 7th cirvical vertebra in different direction. Crossing mid line size from 9 cm x 2 cm to 14cm x 2 cm red in colour.

3. Contusion 9 cm 2 cm on Lt. Side back lower part .... abrasion its mid. Longitudinal in direction. 4 cm below INJ No. 2.

4. Contusion 3 cm x 2 cm on lower outer Lt. Chest ..... Tr. Swelling and it 16 cm below Inj. Angle of Lt. Scapula red in colour.

5. Tr. swelling 4 cm x 1 cm on Lt. Hand back along...... meta corpal bone.

All INJ. Caused by blunt weapon and and kept under observation. Ad. x ray Rt. upper Arm. X-ray chest and x ray lt. hand ref. To Distt. Hospital Meerut for admission and treatment.

Duration about ½ day old.

Sd/ illegible 					        Sd/ illegible 
 
   20.7.84						20.7.84
 
 MEDICAL OFFICER 				    MEDICAL OFFICER 
 
P.H.C. BAGHPAT MEERUT			P.H.C. BAGHPAT MEERUT
 

 
Attested.
 
L.T.I. of 
 
Ram Singh

On the same day Munshi and Raghubar were also examined and their examination report is as follows:

Examination of Munshi Examined Munshi aged about 66 yrs S/o Pirthi R/o Baghu P.S. Baghpat (Meerut) B/B C.P. No. 1200 Jai Chand P.S. Baghpat (Meerut) and found? the following at 1.45 PM dated 20.7.84 M.II. M.I. Mole Lt. chest lower 6 cm below lt. Nipple.

INJ-

1. Lacerated wound 3 ½ cm x ½ cm x scalp deep on lt. Side skull. Back 12 cm back of lt. Ear oblique fresh bleeding present.

2. Lacerated wound 2 cm x ½ cm x scalp deep on mid of skull 9 cm above ......... of nose. Oblique fresh bleeding present.

3. Incised wound 1 ½ cm x ½ cm x muscle deep on back of upper lt. Fore arm 2 cm below lt. Elbow oblique. Margins are clean cut. ............. in shape fresh bleeding present.

4. Tr. swelling 5 cm x 2 ½ cm on base of back of lt. Index & mid finger.

INJ. No 1 & 2 caused by blunt weapon kept under observation. Ad. X ray skull Inj. No. 3 is simple caused by sharp edged weapon.

Inj. No. 4 caused by blunt weapon Ad. X ray lt. Hand. Kept under observation.

Duration fresh Inj.

Sd/ illegible 					       Sd/ illegible 
 
   20.7.84					          20.7.84
 
 MEDICAL OFFICER 				MEDICAL OFFICER 
 
P.H.C. BAGHPAT MEERUT		        P.H.C. BAGHPAT MEERUT
 

 

 
Attested.
 
L.T.I. of 
 
Munshi
 

 
Ext. Kha-4

Munshi aged about 66 yrs S/o Pirthi R/o Baghu P.S. Baghpat (Meerut) B/B C.P. No. 1200 Jai chand P.S. Baghpat. A case of medicolegal INJ whose M.I. And LTI are given below. Ref. To Radiological Dept. P.L. Sharma Hospital Meerut for

1. X Ray skull

2. X Ray Lt. Hand M.I. Mole Lt. Chest lower 6 cm below lt. Nipple.

Sd/ illegible 					       Sd/ illegible 
 
   20.7.84					          20.7.84
 
 MEDICAL OFFICER 				MEDICAL OFFICER 
 
P.H.C. BAGHPAT MEERUT		       P.H.C. BAGHPAT MEERUT
 

 

 
L.T.I. of 
 
Munshi attested
 

 
						Photo copy attested
 
						      Sd/ illegible 
 
						         25.8.92
 
Ext. Kha-5
 

 

 

 

 
Examination of Raghubar

Examined Raghubar aged about 55 yrs S/o Sohan R/o Baghu P.S. Baghpat (Meerut) B/B C.P. No. 1200 Jai Chand P.S. Baghpat (Meerut) and found? the following at 2.00 PM dated 20.7.84 M.I. Mole lt. Abd. 2 cm outer to umblicus.

INJ-

1. Lacerated wound 2.5 cm x ½ cm x scalp deep on rt. side skull front 6 cm above mid of rt eye brow. Oblique fresh bleeding present.

2. Contusion 5 cm x 2 cm on lt. Abd. ........ just over Iliac crest. Red in colour oblique.

3. Contusion 3 cm x 1.5 cm on base of rt. thumb and wrist joint on palmer surface oblique red in colour.

INJ No. 1, 2 3 caused by blunt weapon and simple except INJ No. 1 .......... X Ray skull advised.

Duration fresh Inj.

Sd/ illegible 					     Sd/ illegible 
 
   20.7.84					        20.7.84
 
MEDICAL OFFICER 				MEDICAL OFFICER 
 
P.H.C. BAGHPAT MEERUT		         P.H.C. BAGHPAT MEERUT
 

 

 
L.T.I. of 
 
Raghubar Attested.
 
						Photo copy attested
 
						      Sd/ illegible 
 
						         25.8.92
 

 
Ext. Kha-6

Raghubar aged about 55 yrs S/o Sohan R/o Baghu P.S. Baghpat (Meerut) B/B C.P. No. 1200 Jai chand P.S. Baghpat (Meerut). Whose M.I. and LTI are given below. A case of medicolegal INJ ref. to Radiologist P.L. Sharma Hospital Meerut for

1. X Ray skull M.I. Mole Lt. Abdomen 2 cm outer to umbilicus Sd/ illegible Sd/ illegible 20.7.84 20.7.84 L.T.I. of Raghubar attested Photo copy attested Sd/ illegible 25.8.92 Ext. Kha-7 Inquest was conducted at 3:15 pm by SI Keshav Deo and body thereafter was send for autopsy.

Autopsy was conducted on the body of deceased by Dr. D.D. Tyagi and he recorded following injuries on the body of deceased POST MORTEM EXAMINATION REPORT ¼'ko foPNsnu fjiksVZ½ (Paper torn) dated 21.7.84 on the body of (Paper torn) P.S. Baghpat (Meerut) sent by S.. P.S. Baghpat (Paper torn) No. 91/84 Place: Baghpat Date: 21.7.84 Time: at 11.30 AM Body Identified by Police Constable/Chaukidar:

			C.P. No. ...64 Ashok Kumar              P/S Baghpat
 
			C.P. No. 137 Om Prakash	                Meerut
 

 
Probable Age 60 years.
 
Probable time since death- 	about one day old
 
			Ka. External Examination
 
1. Condition of body as regards:

Muscularity, ------ Stoutness, Emaciation, Rigor mortis and decomposition:

Average muscular rigor mortis present on both upper and lower ext. decomposition started in lower part of Abd.

2. Marks of identification specially in the case of unknown person:

3. Body/Eyes:

4. Stage of natural orifices, ears, nostrils, mouth, anus, urethra and vagina:

Bleeding from nose present NAD

5. Injuries: Nature and position and measurements including incised wounds:

Noted.

6. Bones and Joints There is dislocation of .... radius at elbow joint ..... of bridge of nose.

7. Organs of generation NAD

8. Addl. Remarks: NIL ANTE MORTEM INJURIES ¼e`R;q ds iwoZ dh pksVsa½s

1. Lacerated wound (P.T.)( x1/2 cm x bone deep on Bridge of nose (P.T.) below mid eye brow.

1. Abrasion 2 cm x ½ cm on part of rt. fore arm 10 cm below rt. elbow.

2. Incised wound 3 cm x 1 cm x bone deep on lt. Fore arm mid and (P.T.) longitudinal in direction 9 cm below lt. elbow there is fracture of lt. ulna bone.

3. Incised wound 1.5 cm x ½ cm bone deep on ........ and upper Rt. leg 6 cm below right knee. Longitudinal in shape .............. down word.

4. Contusion 6 cm x 3 cm on rt. back of chest upper oblique, 15 cm below 7th cervical vertebra.

5. Contusion 20 cm x 5 cm on back of rt. side chest 6 cm below INJ N0. 5. oblique.

6. Contusion 15 cm x 8 cm on back of lt. Abdomen 16 cm below Int. angle of Lt. Scapula oblique.

7. Contusion 12 cm x 3 cm on upper and outer Rt. thigh 22 cm above Rt. knee oblique.

8. Contusion 2 cm x 1 cm on back of Rt. forearm upper 4 cm below Rt. albow.

Sd/- Illegible.

Kha- Internal Examination 1- Head and Neck: Described 1- Bones of Scalp and skull: NAD.

2-	Membranes				NAD.
 
3-	Brain					Pale NAD.	
 
4-	Base of skull				NAD
 
5-	Vertebrae				NAD
 
6-	Spinal Cord				Not exposed
 
7-	Addl. Remark				Nil.
 

 
				  2- Thorax					
 
a.	Walls, ribs & cartilage:			Multiple fracture in 5th,6th 7th 							Ribs of Rt. side ..... and outer 							side
 
b.	Pleura:					Blood present in Rt. side 						pleural 	cavity.		
 
c.	Larynx, Trachea and Bronchi:		NAD	
 
d.	Right lung:				   Pale NAD
 
e.	Left lung:					
 
f.	Pericardium:				NAD
 
g.	Heart with wt.:				Pale, empty,  NAD Wt. 200gm.
 
h.	Large vessels:				Empty
 
i.	Addl. Remark				Nil.	
 

 
				3- Abdomen
 
1-	Walls					NAD.
 
2-	Peritoneum				NAD.
 
3-	Cavity					NAD.
 
4-	Buccal cavity, teeth,			NAD. Teeth 2/1.
 
	tongue and pharynx		
 
	
 
5-	Oesophagus				NAD
 
6-	Stomach and its contents	   	NAD empty.
 
7-	Small Intestine and its contents		NAD contain gases.
 
8-	Large Intestine and its contents		NAD contain faecul matter.
 
9-	Liver with wt. & Gall Bladder:	Pale	NAD wt. 1100 gm GB- empty.
 
10-	Pancreas				NAD.
 
11-	Spleen with weight			Pale NAD. wt.160 gm.
 
12-	Kidneys with weight 			Pale NAD. wt.170 gm.
 
13-	Bladder					Half filled.
 
14-	Organs of Generation			NAD
 

 
	Gha. Opinion as to cause and manner of death:	Death is due to shock & 								haemorrhage due to A.M. 								injuries. 
 

 
Place:	Baghpat.		Date: 21.07.84.
 
Sd/- Illegible.
 
21.7.84
 
Dr. D.D. Tyagi
 

 
ENCL:	Enclosure 7 Seven (paper torn)
 
						          Medical Officer 
 
						    P.H.C. Baghpat, Meerut
 
							   (Seal)
 
Other Notes:
 
(paper torn) 
 
(2) one Baniyan and (paper torn) pair of shoe has (paper torn)		
 
								   
 
Ext. Ka-9
 
	28.7.87

During the course of investigation, Investigating Officer Sri Hari Raj Singh Tyagi has proceeded to record statement of Balvir, Mahendra etc. and also made spot inspection and prepared spot inspection report with the footnote. The Investigating Officer also obtained injury reports and on 22nd July, 1984 accused Munshi was arrested and on 27th July, 1984 documents were obtained by him in respect of the property in question and on 28th July, 1984 postmortem report has been procured and the statement of Kumari Rampali and Smt. phoolmati and Khiladi Singh, Lekhpal was recorded. On 14th August, 1984 statement of Ram Singh was recorded and on the same day, chargesheet in question was got filed. The case being triable by Court of Sessions has been accordingly committed to the Court of Sessions.

After the chargesheet in question has been filed, charges were framed on 14th February, 1989, the same are as follows:

I, R.V. Singh, Special Judge, Meerut, do hereby charge you Raghubar, Mahendra, Krishan Pal and Rishi Pal as follows:-

That you, on 20.7.1984 at about 10 A.M. in the jungle of village Baghu, P.S. Baghpat, District Meerut, formed an unlawful assembly with a common object to kill Duli Chand and caused injuries to Ram Singh, Smt. Phool Mati and Rampali and in prosecution of the common object of aforesaid unlawful assembly, used force and thereby committed an offence punishable U/s 147 I.P.C. and within the cognizance of the court of Sessions.

Secondly, that you, on the aforesaid date, time and place, in prosecution of the common object of aforesaid unlawful assembly, knowingly and intentionally, committed murder of Duli Chand and thereby committed an offence punishable U/s 302 read with 149 I.P.C. and within the cognizance of the court of Sessions.

Thirdly, that you on the aforesaid date, time and place, in prosecution of the common object of aforesaid unlawful assembly, voluntarily caused simply hurt to Ram Singh, Smt. Phool Mati and Rampali with lathis and you thereby committed an offence punishable U/s 323 read with section 149 I.P.C. and within the cognizance of the court of Sessions.

And I hereby direct that you be tried by this court on the aforesaid charge."

And I, R.V. Singh, Special Judge, Meerut, do hereby charge you Premi and Teji as follows:-

That you, on 20.7.1984 at about 10 A.M. in the jungle of village Baghu, P.S. Baghpat, District Meerut, formed an unlawful assembly with a common object to kill Duli Chand and cause injuries to Ram Singh, Smt. Phool Mati and Rampali and in prosecution of the said common object used force and at that time you were armed with deadly weapons i.e. Balkati and Ballam and you thereby committed an offence punishable U/s 148 I.P.C. and within the cognizance of the court of Sessions.

Secondly, that you, on the aforesaid date, time and place, in prosecution of the common object of aforesaid unlawful assembly, knowingly and intentionally, committed murder of Duli Chand and you thereby committed an offence punishable U/s 302 read with 149 I.P.C. and within the cognizance of the court of Sessions.

Thirdly, that you on the aforesaid date, time and place, your companion, in prosecution of the common object of the unlawful assembly, voluntarily caused simply hurt to Ram Singh, Smt. Phool Mati and Rampali with lathis and you were member of the unlawful assembly and you thereby committed an offence punishable U/s 323 read with section 149 I.P.C.

And I hereby direct that you be tried by this court on the aforesaid charge."

After the charges in question have been framed, the accused appellants requested for being tried.

To support the case of prosecution, Balvir Singh, the informant appeared as PW1; Ram Singh appeared as PW2; Mahendra Singh appeared as PW3; Smt. Rampali appeared as PW4. After said witnesses of fact have been examined, then PW5 Khiladi Singh was examined, who was the lekhpal and who proceeded to substantiate the fact that based on order of Naib Tehsildar, Harpauli dated 23rd March, 1985, he has proceeded to make relevant entries in the khatauni; S.I. Keshav Dev appeared as PW6, who has proceeded to hold the inquest proceedings and who has also proceeded to prepare the police papers, challan lash, chitthi etc; PW7 Jagmal Singh is the scribe of the First Information Report and the same has been written in his writing on the asking of the complainant; PW8, Dr. D.D. Tyagi, who has proceeded to note the injuries of Ram Singh and Smt. phoolmati, and also proceeded to conduct postmortem report on the body of Duli Chand; PW9 is Constable Dharamveer Singh who has proceeded to mention that he was posted at police station Baghpat and he has made chik no.116 and has proceeded to prove that Balvir Singh has come to lodge the First Information Report; PW10 is S.I. Hariraj Singh Tyagi, who has proceeded to conclude the investigation and submitted chargesheet; PW11 Ct. Om Prakash Sharma is body carrier and Shri Rajendra Prakash Saxena appeared as PW12, who was the Naib Tehsildar.

After the said statement in question has been recorded, statement of accused-appellants under section 313 Cr.P.C. has been got recorded and therein as far as accused Raghubar is concerned while answering question No.21, he has proceeded to mention that there has been sale deed in their favour and mutation was also in their name and litigation has been on going wherein he has succeeded and he has further proceeded to mention that on the day of incident, he as well as Munshi had been ploughing their field and Duli Chand etc. came and prevented them from ploughing the field and on prevention being made, they indulged in marpit with Munshi and then he and Munshi tried to save himself and he has lodged First Information Report and thereafter, in order to implicate the appellants, Balvir and others have killed their own father who was 80 years of age and it was also mentioned that he and Munshi have been medically examined and their case has also been registered.

Mahendra Singh, one of the accused has also in his reply of question No.21 has proceeded to mention that his reply is same as the reply of his father Raghubar Singh is. After statement u/s 313 Cr.P.C. has been recorded, then DW1 Prakash Chand, Pharmacist has appeared alongwith medico-legal register wherein injuries of Munshi and Raghubar have been noted. Dr. D.D. Tyagi has examined Munshi and Raghubar on the relevant date has appeared as DW2. DW3 is advocate's clerk, who has proceeded to mention that cross F.I.R. was lodged.

On the basis of evidence that has come on record, the Trial Court has concluded that in the present case benefit of right of self defence of person and property is not available and the said right has been exceeded in the facts of the case and accordingly, conviction order has been passed followed by sentence and same has impelled the appellants to be before this Court.

Shri V.P. Srivastava, Senior Advocate submitted that the facts of the case would reflect that bonafidly accused-appellants have exercised their right of private defence of person and property and there has been no aggression on their part as only required injuries have been caused for fulfillment of the aforementioned right and in view of this, the Trial Court has erred in law in recording conviction ignoring the most relevant fact that from the side of accused-appellants injuries have been received by Munshi as well as Raghubar and the seat of their injury clearly reflects that there was a rightful occasion for them to have exercised and invoked the right of private defence of person and property and as far as injured phoolmati and Ram Singh are concerned, on their bodies only required injuries have been caused and even on the body of deceased Duli Chand, the injuries are on the non-vital part of the body and as such, the circumstances are speaking for itself and accordingly, in the facts of the case, the Trial Court's judgment be set aside and accused-appellants be declared by the Court to be not guilty.

The request that has been made from the side of the accused-appellants has been resisted by learned A.G.A. Smt. Raj Laxmi Sinha by submitting that in the present case, looking to the complete picture that has been painted by the accused-appellants themselves same clearly reflects that the accused-appellants were the aggressors and as far as injuries of accused-appellants are concerned, same has been appropriately explained by the defence and there is overwhelming evidence on record which clearly reflects that right of private defence of person and property was not available in the facts of the case and accordingly, rightful conviction has been recorded.

Smt. Raj Laxmi Sinha, learned A.G.A. has also been joined by Shri Rahul Mishra holding brief of Shri Apul Mishra, Advocate representing the complainant by contending that here the circumstances are speaking for itself that the accused-appellants were the aggressors and in the present case from the side of accused-appellants qua the other side of story, First Information Report has been lodged being case crime No.116-A and therein the theory set up by them has been found to be untruthful and accordingly, final report has been submitted and said matter has been permitted to attain finality. Here the totality of the circumstances would clearly reflect that accused-appellants were not at all in possession of the property in question and in a deliberate and willful manner with full intention to take possession, the accused-appellants formed unlawful assembly and have participated in commission of offence and here the accused persons have failed to discharge their burden that in exercise of right of private defence of person and property, such an act has been committed by them and accordingly, in the facts of the case, the right that has been claimed by them that is the right of private defence of person and property, same is neither applicable nor attracted in the facts of case, accordingly rightfully recorded conviction be affirmed After respective arguments have been advanced, the situation that is so emerging in the present case is that as far as date, time and place of incident is concerned, same stands fixed as none of the parties are disputing this fact that at the said point of time and at the said place, incident in question has not taken place. The accused-appellants are submitting that in the present case as far as they are concerned, they have merely proceeded to exercise their right of private defence of person and property, as in their favour there has been a registered sale deed and they were in actual physical cultivatory possession of the property in question and in view of this, they had every right to exercise right of private defence of property and once they have been attacked and assaulted then they have every right to exercise right of private defence of person and here exactly same has been done. The claim that has been set up by the accused-appellants, has been resisted from the side of State as well as by the complainant by submitting that in the present case the so called registered sale deed is nothing but a sham transaction as by getting an imposter before the Sub-Registrar, on 3rd August 1981 in respect of plot no.993 and others and without making any payment worth name, sale deed in question has been got executed and based on same ex-parte mutation has been got done on 26th August 1981 and against the same objection have been filed and then the said objections have been allowed on 23rd March, 1983 and the fact of the matter is that it was the complainants' side who has been in physical cultivatory possession of the same and in view of this, in the facts of the case right of private defence of person and property was not at all applicable or attracted and even accepting this fact for the sake of argument that same is in their possession even then there has been over-stepping of the aforementioned right in question.

In the case in hand appellants have claimed right of private defence of the body and property both, and accordingly we proceed to consider the relevant provisions dealing with the right of private defence of the body and property, and the backdrop in which such provisions have been introduced:

The right of private defence is a very valuable right and it has been recognised in all free, civilised and democratic societies within certain reasonable limits.

Russel on Crimes (11th Edition) page 491 states as follows:

"A man is justified in resisting by force any one who manifestly intends and endeavours by violence or surprise to commit a known felony against his person, habitation or property. In these cases he is not obliged to retreat and not merely to resist the attack where he stands but may indeed pursue his adversary until the danger is ended. If and in a conflict between them he happens to kill his attacker such killing is justifiable."

Blackstone also observed as follows:

"The party assaulted must, therefore, flee as far as he conveniently can either by reason of some wall, ditch, or some other impediment; or as far as the fierceness of the assault will permit him; for it may be so fierce as not to yield a step, without manifest danger of his life, or enormous bodily harm; and then in his defence he may kill his assailant instantaneously. And this is the doctrine of universal justice, as well as of the municipal law."

The law does not require a citizen, however, law abiding he may be, to behave like a rank coward when confronted with imminent and unlawful aggression. There is nothing more degrading to the human spirit than to run away in the face of danger.

No doubt, it is the primary duty of the State to protect the life and property of its subjects, but no State, how large its resources, can afford to depute a policemen to dog the steps of every rogue in the country. Consequently a pro tanto right has been conferred by the State on its subjects to take law in his own hand and provide for his own safety.

The right of private defence serves a social purpose. There is nothing more degrading to the human spirit than to run away in the face of peril. The law contemplates that every citizen will hold his ground manfully against aggression. No man is expected, when he is attacked by criminals or whose property is forcibly tried to be taken away, to flee away, to seek the protection of State authorities or to exhaust all other steps before exercising his right of private defence. The right of private defence serves a social purpose and that right has to be liberally construed. Situations have to be judged from the subjective point of view of the accused concerned, the surrounding excitement and confusion of the moment, confronted with a situation of peril and not by any microscopic and pedantic scrutiny.

Relevant provisions of right of private defence has been codified in Section 96 to 106 and all these sections read together gives a proper grasp of the scope and limitations of that right.

Section 96 declares that "nothing is an offence which is done in the exercise of the right of private defence". Section 97 states that every person has right of defence of person as well as of property. Section 98 recognises the right of private defence against an act of persons of unsound mind. Section 99 enumerates circumstances in which the right of private defence is not available. Section 100 describes the situations in which the right of private defence of body extends to causing of death, whereas section 101 limits the extent of the said right to causing any harm other than death. Section 103 and 104 deal with respectively the cases in which the right of private defence of property extends to causing death and to causing any harm other than death. Sections 102 and 105 define and demarcate the commencement and continuation of the right of private defence of body and property, respectively. Section 106 finally extends the right of private defence against a deadly assault at the risk of causing harm to an innocent person.

The section in itself does not define the expression 'right of private defence' and it merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence, is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. However, in determining this question of fact, the court will have to consider all the surrounding circumstances from the subjective point of view based on proper appraisal of evidence and other relevant material available on record, to come to conclusion that the accused persons in the circumstances in which they found themselves at the relevant time gave them the right to exercise their right of private defence. In order to find out whether right to private defence is available to an accused, the entire incident has to be examined with care and viewed in its proper setting.

Our court, in the case of Paras Ram vs. State AIR 1949 Allahabad has considered variety of situations relating to defence of property where right of private defence of property is available and where it is not available in following terms:

"(i) there can be no danger to property if the accused is not in possession. If he has merely a bare title to the property, his remedy is to seek possession from a Court of law and not to enforce it by force himself;

(ii) if the accused was previously in peaceful possession but the other side has dispossessed him and the accused has acquiesced in the dispossession for sometime, then again he must have recourse to law and not enforce his right to take back possession by his own force;

(iii) the accused may have lost possession but if immediately on coming to know of the other side having entered on his land or taken possession of his property he rushes to oust the trespasser, he is entitled to oust him by force. He is not bound to have recourse to a lengthy process of a trial in a civil Court. But this rule cannot be applied to a case in which the trespasser has already peacefully established himself in the enjoyment of the property for some time;

(iv) if, however, there is no question of permanent deprivation of one's possession over property and the question is of infringement of enjoyment of a mere right over property, then in that case, unless the injury to be caused by the obstruction of the enjoyment to one's right is expected to be enhanced if recourse is had to public authorities for protection, one is bound to take Such recourse.

(v) In every case, however, if one is already in possession of one's property or in enjoyment of a right, one is entitled to reach the spot earlier than the other party with arms and reinforcements and to wait in readiness to defend such property or right from the expected aggression from the other side;

(vi) if the information of the expected aggression is of a definite kind it would be proper for the party in possession to inform the public authorities and seek their help but one is not bound to seek such help unless an apprehension of danger to such property has actually commenced;

(vii) if the apprehension of danger has actually commenced and if one can have recourse to the public authorities before an actual injury is caused to the property or right, he must do so, or else he will lose his right of private defence. This contingency usually arises when one has no definite information about the other side proceeding towards the land in dispute and the public authorities are within such a reach that one could inform them before the actual damage to the property is done, e. g., when the police station falls on the way to the land in dispute and the accused can inform them while proceeding towards it for its protection;

(viii) when a fight takes place not because property or person has to be protected but because parties want to measure their strength, and protection of property is merely a pretext, no question of self-defence arises, but this finding can be arrived at only when the possibility of either party fighting for the protection of his property has been excluded;

(ix) when the determination to fight is bona fide in the desire to protect one's property, that would not be a case in which it can be said that the right of self-defence is excluded. In this connection it would be important to note whether one is fighting for maintaining one's possession or maintaining one's enjoyment of a right which has been enjoyed for some time previously, or one tries to obtain possession of a property which he thinks belongs to him, or to enforce a right which may be his but which he had never enjoyed before. In the latter class of cases there is no right of self-defence. In the former class of cases there is;

(x) again, where a fight takes place in an open field, not on or near the property to be protected but far away from it, this fight cannot be said to be one for the protection of that property and there will be no right of self-defence in such cases;

(xi) again, where one party challenges the other party for a fight then also the right of private defence is excluded, even though the fight be near or on the property. One is, however, entitled to say to the aggressor, 'if you attack you will be met by force,' but it would be challenging another to fight if one were to abuse him and say 'come on, try your strength if you like'; and

(xii) where there is a dispute over ownership or possession of property and parties quarrel, and there is an exchange of abuses, but the party out of possession has neither attempted nor threatened to take possession immediately, nor attempted nor threatened to cause injury to the party in possession, the party in possession has no right to strike first, and if he does so, he gives the other party the right to strike back in self-defence."

The Apex Court in the case of Gotipulla Venkata Siva Subbrayanam & ors. vs. State of Andra Pradesh 1970 AIR(SC)1079 has taken the view that the right of private defence serves a social purpose and the human spirit than to run away in face of peril and same is basically preventive and not punitive and the provisions of Section 96 to 106, I.P.C. which deal with the right of private defence has to be construed and accordingly this aspect of the matter has been dealt with as follows:

"The right of private defence of person and property is recognised in all free, civilized, democratic societies within certain reasonable limits. Those limits are dictated by two considerations : (1) that the same right is claimed by all other members of the society and (2) that it is the State which generally undertakes the responsibility for the maintenance of law and order. The citizens, as a general rule, are neither expected to run away for safety when faced with grave and imminent danger to their person or property as a result of unlawful aggression, nor are they expected, by use of force, to right the wrongs done to them or to punish the wrongdoer for commission of offences. The right of private defence serves a social purpose and as observed by this Court more than once there is nothing more degrading to the human spirit than to run away in face of peril; (Munshi Ram v. Delhi Administration(1) and Kishna v. State of Rajasthan(2). But this right is basically preventive and not punitive. It is in this background that the provisions of ss. 96 to 106, I.P.C. which deal with the right of private defence have to be construed. According to S. 96 nothing is an offence which is done in the exercise of the right of private defence and under s. 97 subject to the restrictions contained in s. 99 every person has a right to, defend : (1) his own body and the body of any other person against any offence affecting the human body and (2) the property whether movable or immovable of himself or of any other person against any act which is an offence failing under the definition of theft, robbery, mischief or criminal trespass or which is an attempt to commit these offences. The right of private defence, according to section 99, does not extend to an act which does, not reasonably cause the apprehension of death or of a grievous hurt if done or attempted to be done by a public servant acting in good faith etc., and there is also no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Nor does it extend to the inflicting of more harm than is necessary to inflict for the purpose of defence. Section 100 lays down the circumstances in which the right of private defence of the body extends to the voluntary causing of death or of any other harm to the assailants. They are: (1) if the assault which occasions the exercise of the right reasonably causes the apprehension that death or grievous hurt would otherwise be the consequence thereof and (2) if such assault is inspired by an intention to commit rape or to gratify unnatural lust or to kidnap or abduct or to wrongfully confine a person under circumstances which may reasonably cause apprehension that the victim would be unable to have recourse to public authorities for his release. In case of less serious offences this right extends to causing any harm other than death. The right of private defence to the body commences as soon as reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed and it continues as long as the apprehension of danger to the body continues. The right of private defence of property under s. 103 extends, subject to s. 99, to the voluntary causing of death or of any other harm to the wrongdoer if the offence which occasions the exercise of the right is robbery, house-breaking by night, mischief by fire on any building etc., or if such offence is, theft, mis- (1) Crl. A. No.. 124 of 1965 decided on 27.11.1967. (2) Crl. A. No. 23 of 1960 decided on 30.10.1962. L7Sup.CI(NP)/70-13 chief or house trespass in such circumstances as may reasonably cause apprehension that death, or grievous hurt will be the consequence, if the right of private defence is not exercised. This right commences when. reasonable apprehension of danger to the property commences and its duration, as prescribed in S. 105, in case of defence against criminal trespass or mischief, continues as long as the offender continues in the commission of such offence. Section 106 extends the right of private defence against deadly assault even when there is risk of harm to innocent persons."

A Full Bench of Orissa High Court, in the case of State vs. Rabindra Nath Dala 1973 Cr.LJ 1686 (Orissa) (Full Bench) has also summarized the legal position with respect to defence of property in following terms:

(i) in a civilised society the defence of person and property of every member thereof is the responsibility of the State. Consequently, there is a duty cast on every person faced with apprehension of imminent danger of his person or property to seek the aid of the machinery provided by the State but if immediately such aid is not available, he has the right of private defence;

(ii) whether or not a case is one in which recourse should be had to the public authorities depends upon the nature of information regarding the threat of imminent danger. The right of private defence of property commences when a reasonable apprehension of danger to the property commences and the duty to apply for protection to public authorities commences when some information of definite kind as to the time and place of danger is actually received. Thus, in most of the cases the time lag between receipt of definite information and the commencement of apprehension of actual danger would be one of the determinative features;

(iii) after the actual danger has commenced, there is ordinarily no question of applying for protection of the public authorities;

(iv) the law does not require a person in possession of the property to run away or retire in the face of attack on it, to ask for protection of public authorities. If a reasonable apprehension of imminent danger to the property has commenced, the exercise of right of private defence is available. At such point of time no duty is cast on the accused to run for protection of public authorities;

(v) a person in possession when attacked by trespasser is entitled to maintain his possession and drive away the aggressors by use of force without applying for protection of public authorities. Where the person in physical possession has been dispossessed by the trespasser, he is even entitled in exercise of the right of private defence to drive away the intruder, provided there has been no acquiescence to such dispossession and the trespasser has not obtained settled possession over the property. Here also there is no duty to run for protection and thereby allow the trespasser to have settled possession over the property;

(vi) where the accused is in physical possession of the property but at the moment of attack he is not present at the spot, on coming to know that the trespasser is getting into possession of the same or attempting to do so, is entitled to come to the spot with necessary force to repel the entry and turn away the aggressor;

(vii) where there is imminent danger to the property and the person in possession apprehends substantial injury thereto, he is entitled to raise his own arms in defence and retaliate to keep away the attack without applying for State aid;

(viii) when no serious loss to the property is threatened and there is no urgency for driving away the trespasser, recourse to State aid must be taken even if the trespasser has just entered the land. This should be the rule where at the time of trespass, the person in settled possession is not upon the field. Where such person is present on the property at the time trespass is attempted, he would ordinarily have the right of private defence as soon as his possession over the property is actually threatened, no matter whether there is standing crop on the land or substantial injury is apprehended or not. An exception to the requirement of seeking State aid may also be made in a case where taking advantage of the temporary absence from the field of the person in settled possession, the trespasser attempts to get into possession;

Where A is in settled possession and B trespasses and withdraws from the property trespassed, A, can re-enter the property and maintain his possession by use of force if B attempts to get into the property again.

(ix) the bare fact that a police station is not far off from the scene of occurrence is not by itself sufficient to deprive a person of his right of private defence. The question in all cases is whether if the police intervention could have been timely and effective. The effectiveness of the police help depends not only on the nearness of the police station but also on the possibility of giving timely information to the police and obtaining timely assistance from the police;

(x) in dealing with cases of this type, a distinction must always be borne in mind between enforcing a right and maintaining the right. Where the owner, not in possession, tries to enter upon the property by show of force, the person in possession, though not the owner, is entitled to resist and also claim right of private defence of property; and

(xi) mere preparation to meet an apprehended attack does not militate against the right of private defence if there is no time to have recourse to public authorities."

The Apex Court in the case of Mahabir Choudhary vs. State of Bihar AIR 1996 Cr.LJ 2860 held that if a man's property is in imminent danger of being attacked or impaired he has the right to resort to such measure as would be reasonably necessary to thwart the attempt to protect his property as follows:

"9. Section 97 IPC recognises right of a person not only to defend his own or another's body but to defend his own or another's property even against an attempt to inflict any offensive act as against the property. It is now well-settled that the rule of retreat Which Common Law Courts espoused is not relevant under the Indian Penal Code. If a man's property is in imminent danger of being impaired or attacked he has the right to resort to such measures as would be reasonably necessary to thwart the attempt to protect his properly. In Jai Dev v. State of Punjab,(1963) 1 Crl. L.J. 495: AIR 1963 SC 612, this Court has observed that in India there is no rule which expects a man to run away when confronted with a situation where he. can exercise his right of private defence.

10. No doubt Section 103I.PC, which deals with right of private defence as against an act which might be mischief or theft or criminal trespass, conditions that there should be reasonable apprehension that death or grievous hurt would otherwise be the consequence. But that provision deals with the farthest extent of the right of private defence as against the above three categories of wrong against the property. But a man pitted against such wrongs or even against attempts thereof need not wait for exercising right of private defence until the apprehension of death of grievous hurt is burgeoned in his mind Penal Code envisages two measures of right private defence. One is the first degree which shall not reach upto causing of death of the wrong doer. The other is the full measure which may go upto causing death. Both measures are, however, subjected to the restrictions enumerated in Section 99. Section 104 IPC contains the bridle that right of private defence shall not cross the limit of first degree as against acts which would remain as theft mischief or criminal trespass. But Section 103 recognises extension of the said right upto the full measure, even as against the aforesaid acts but only if such acts or their attempts are capable of inculcating reasonable apprehension in the mind that death or grievous hurt would be the consequence if the right is not exercised in such full measure.

11. The emerging position is, you have the first degree of right of private defence even if the wrong committed or attempted to be committed against you is theft or mischief or criminal trespass simplicitor. This right of private defence cannot be used to kill the wrong doer unless you have reasonable cause to fear that Otherwise death or grievous hurt might ensue in which case you have the full measure of right of private defence.

12. When the acts of Malpura People amounted to mischief, appellants had aright of private defence the thwart to same. In the course of exercise of such right appellants who gunned down the mischief-makers have obviously acted far in excess of the right of private defence. Nonetheless the first degree of right of private defence cannot be denied to them.

13. We are, therefore, of the view that the High Court was in error in holding that appellants had no right of private defence at any stage. Trial Court was correct in its approach regarding that aspect of the matter. we therefore, allow these appeals and set aside the Judgment of the High Court. The conviction and sentence passed by the Session Court will stand."

Abovementioned Full Bench judgment of Orissa High Court, has been approved by Apex Court in the case of Darshan Singh vs. State of Punjab 2010(2) SCC wherein Apex Court has held as follows:

"29. The Indian Penal Code defines homicide in self-defence as a form of substantive right, and therefore, save and except the restrictions imposed on the right of the Code itself, it seems that the special rule of English Law as to the duty of retreating will have no application to this country where there is a real need for defending oneself against deadly assaults.

30. The right to protect one's own person and property against the unlawful aggressions of others is a right inherent in man. The duty of protecting the person and property of others is a duty which man owes to society of which he is a member and the preservation of which is both his interest and duty. It is, indeed, a duty which flows from human sympathy. As Bentham said:

"It is a noble movement of the heart, that indignation which kindles at the sight of the feeble injured by the strong. It is noble movement which makes us forget our danger at the first cry of distress..... It concerns the public safety that every honest man should consider himself as the natural protector of every other."

But such protection must not be extended beyond the necessities of the case, otherwise it will encourage a spirit or lawlessness and disorder. The right has, therefore, been restricted to offences against the human body and those relating to aggression on property.

31. When there is real apprehension that the aggressor might cause death or grievous hurt, in that event the right of private defence of the defender could even extend to causing of death. A mere reasonable apprehension is enough to put the right of self-defence into operation, but it is also settled position of law that a right of self-defence is only right to defend oneself and not to retaliate. It is not a right to take revenge.

32. Right of private defence of person and property is recognized in all free, civilsed, democratic societies within certain reasonable limits. Those limits are dictated by two considerations :

(1) that the same right is claimed by all other members of the society and (2) that it is the State which generally undertakes the responsibility for the maintenance of law and order.

The citizens, as a general rule, are neither expected to run away for safety when faced with grave and imminent danger to their person or property as a result of unlawful aggression, nor are they expected, by use of force, to right the wrong done to them or to punish the wrong doer of commission of offences.

34. The basic principle underlying the doctrine of the right of private defence is that when an individual or his property is faced with a danger and immediate aid from the State machinery is not readily available, that individual is entitled to protect himself and his property. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger not of self creation. That being so, the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose.

58. The following principles emerge on scrutiny of the following judgments:

(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.

(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.

(iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.

(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co- terminus with the duration of such apprehension.

(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.

(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.

(vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.

(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.

(ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.

(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.

On these parameters, the fact of the present case are being examined as to whether the appellants of the present case have rightfully proceeded to exercise the right of private defence of person and property. In this direction we have proceeded to examine the statement of PW1, who has very clearly proceeded to mention that on the fateful day at about 6 am in the morning he was at the field and alongwith him Mahendra, Duli Chand and Ram Singh were there and it was also mentioned that phoolmati and Rampali had come alongwith Roti and at about 10 am, Raghubar, Mahendra, Krishna Pal, Rishipal, Munshi, Premi came armed with lathi, ballam and balkati and at the point of time when they have reached on the spot it was asked by them as to why they were ploughing their field and this was retorted back by saying that this was their field and they are ploughing their own field and the moment Ram Singh and Duli Chand said that they were ploughing their own field, the accused-appellants started assaulting them. Duli Chand and Ram Singh were beaten and so were beaten phoolmati and Rampali and Duli Chand to save himself took away the lathi of Raghubar and Ram Singh to save himself took away the ballam of Munshi and Munshi and Raghubar also received injuries and Duli Chand died on the spot and injuries have been received by Ram Singh, phoolmati and Rampali.

PW2 Ram Singh has also come with the statement to the effect that he was at his field and they were ploughing their field and it was also mentioned by them that the accused-appellants in their favour have got a fictitious sale deed for which proceedings have been on-going in Court and on the fateful day at 10 am when phoolmati and Rampali had came to the field with food then at the said point of time Raghubar, Munshi, Premi, Krishnapal, Mahendra, Rishipal came on the field. Munshi was armed with Ballam, Premi was armed with Balkati and others armed with lathi and except for Munshi, all the accused persons are present in the Court and the accused-appellants said as to why they were ploughing their field and then it was retorted that it was their field and then the accused persons stated fighting and accused persons started assaulting Duli Chand, phoolmati, Rampali and to him also with lathi, ballam and balkati and he took away the ballam of Munshi and Duli Chand took away the lathi of Raghubar and tried to save themselves wherein these two accused persons got injured and then large scale assault was made by them and Duli Chand received serious injuries and he died on the spot.

PW3 Mahendra Singh has also made statement to the same effect that on the fateful day they were ploughing their field and Rampali and phoolmati had came on the spot at 10 am alongwith Roti and at the said point of time when ploughing was going on, then Raghubar, Krishnapal, Munshi, Mahendra, Premi came on the field, Munshi was armed with ballam; Mahendra, Krishnapal, Rishipal, Raghubar all were armed with lathi; and Premi was armed with balkati, all the accused persons fought with Duli Chand and Ram Singh and as far as he is concerned, he fled away from the spot and Duli Chand died in the said incident and Rampali, Ram Singh and phoolmati received injuries.

PW4 Rampali also made statement to the same effect as has been stated by Mahendra Singh that she had gone to the field alongwith food in question and at the said point of time when Duli Chand and Ram Singh were ploughing the field, then all the accused persons came on the spot and they started assaulting them wherein Duli Chand died and others namely herself, Ram Singh and phoolmati received injuries and story has also been narrated that from Raghubar, lathi was taken and from Munshi, ballam was taken and attempt was made to save themselves.

The story of the prosecution has been very-very consistent that sale deed is a sham transaction and they continued to be in possession and out of the said story it is being sought to be canvassed that PW1 and PW2 have clearly proceeded to mention that the accused persons,the moment they came on the spot they opened their mouth by submitting that it is their field and why they were ploughing the same and then it was said from the side of the deceased that it was their field and then the altercation started. Based on this statement that has been so made and based on sale deed in question, it is being contended that in the facts of the case, once there was a valid title in their favour, then they have every right to exercise the right of private defence of person and property and accordingly, they have rightly exercised the same.

It is true in the present case that there is a registered sale deed in favour of the accused-appellants and specially in respect of plot no.993 wherein incident in question has taken place. Serious issue from the side of complainant has been raised that by getting an impostor before the Registrar a forged sale deed has been got executed. This much is also accepted position that on the day of incident i.e. 20th July, 1984, prior to it i.e. on 26th August, 1981 the mutation has been done in favour of accused-appellant Mahendra Singh and thereafter from the side of complainant, objections have been filed and the said objections have been allowed on 23rd March, 1983. Nothing has been brought on record that in between 23rd March, 1983 and 20th July, 1984 there has been any order passed by any authority or the Court in favour of the accused persons and thus this much is clearly reflected that on 20th July, 1984 the date of incident, there has been a sale deed dated 3rd August, 1981 in favour of accused-appellant namely Mahendra but qua the said sale deed in question there has been a serious dispute on-going in between parties. The accused persons have been terming the sale deed to be a genuine one, whereas the complainant party has been terming the sale deed to be sham and ingenuine one and the fact of the matter is that mutation had been got done on 26th August, 1981 based on sale deed and same has been rescinded on 23rd March, 1983 and no further order has been passed till the date of incident. Once such was the factual situation that there has been a serious dispute going interse parties and the complainant has been very-very vehement that there has been no sale deed executed and mutation order has been in his favour on the date of incident, then in this background the fact has to be seen as to whether the right of private defence of property was available in favour of appellants or not.

Genuinity and ingenuinity of sale deed has to be decided by Civil Court and once its genuinity was being seriously disputed by the complainant at all available forum and there has been an adverse order of mutation passed on 23rd August, 1981 and Balbir requested for recalling of the said order and said order was recalled on 23rd March, 1983 and said order remained intact till the date of incident and it is true that in the sale deed in question, the factum of handing over of possession has been mentioned, but as to whether actually on the spot accused-appellants have been in possession is essentially remains a question of fact. De-jure possession can be presumed but de-facto possession is essentially matter of evidence and on limited evidence as is available on record the said issue has to be answered.

Trial Court's conclusion is that informant side was in possession over the disputed plot.

PW4 Rampali has stated on internal page 3 of her statement that "Jis khet mein hal chal raha tha, usme macca ke fasal thi 2 balista fasal thi. Jutai mein fasal ukhadne lagi thi, jisme........ usme mecca nahi thi."

PW10 Sri Hari Raj Singh Tyagi also in his statement has mentioned that in the case diary in inspection note, maize crop being there has been noted.

Both the sides were claiming that they were ploughing the field in question. In the statement under section 313 Cr.P.C. made by Raghubar and Mahendra, they have given picture that they were ploughing the field on the said date, then interference was made by Duli Chand and others wherein injuries have been received by Munshi and Raghubar and they have proceeded to lodge First Information Report and in between the complainant and others have killed Duli Chand who was an old man and they have been illegally framed. The story as has been narrated by the accused Mahendra and Raghubar is unacceptable as the said story is not supported by the evidence available on record and no explanation has been given by them of the injuries received by Ram Singh, phoolmati and Rampali. Prosecution story as has come forward with its strength and weaknesses, inspires the Court that the incident in question has taken place in the manner it has been narrated and the counter version set up by accused parties is not at all truthful one, but the law on the subject is clear that even if accused does not plead self defence, it is open to consider such a plea if the same arises from the material on record. The burden of establishing such plea is on the accused and said burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of material available on record.

During the course of argument, learned counsel for the appellants has submitted that if there was maize crop in the field, then there was no reason to plough it by the informant side. Referring this statement, it has been argued that maize crop belonged to accused side, and it was being destroyed by the informants' side illegally. When the accused appellants objected to the same, the informant side caused injuries. Therefore, a right of private defence of the property and person both arises and thus the appellants in their right of self defence of property and person have caused injuries, proportionate to the danger.

Regarding ploughing of the field, there are two versions. Informant's plea was that they were ploughing the field. Accused plea was that they were ploughing the field. Informant side has explained that there was maize crop which was not of good quality, therefore, it was being destroyed by them. It was the month of July. If the statement made by PW4 Rampali is taken into consideration that maize crop standing in the disputed field was of two balista, defence have not explained if there was maize crop standing in the disputed field then why they were ploughing the field. Informant side has explained the reason for ploughing the field In view of this, looking into all attending circumstances that there was maize crop standing and as it was improper crop it was being destroyed by informants' side by ploughing the field, whereas no explanation has been furnished from the appellants' side as to why they were ploughing when maize crop was standing and coupled with the factum that on the date of incident order dated 23rd March, 1983 had been holding the field, and same was indicative of the fact that claim of ownership was being resisted by complainants, tooth and nail, any subsequent orders passed after the date of incident in no way would improve the case of appellants of them being in possession, thus this Court is of the opinion that complainant's side has been in possession of the plot No.993 and had been cultivating the same.

Here the totality of circumstances are pointing out that the appellants based on sale deed in question had strong thought process that the property belongs to them and they have every right of possession and enjoyment of the same and with this objective in mind have gone on the spot to prevent the complainant and his family members from ploughing the field. As already mentioned above, appellants were not in possession and had never enjoyed the property in the past. In such a situation where possession has not been there and property has not been enjoyed in the past, then right of self defence is not available as per the contingency enumerated in clause (ix) of the judgment of this Court in the case of Paras Ram vs. State AIR 1949 Allahabad (Supra). Accordingly, in the facts of the case to conclude that they could have exercised the right of private defence of property, cannot be accepted and the facts are also speaking for itself inasmuch as, as far as complainant side is concerned, it is clearly reflected that they were totally unarmed on the fateful day and they have been carrying their day to day activity in normal course of business and had been ploughing the field since morning and that was the reason that female inmates were there on the spot with the food and they have also suffered injuries from the hands of accused-appellants.

The accused person's side has to be accepted as aggressor in the facts of the case, looking to their number when they had arrived on the crime scene and the weapon with which they were armed. This much is clearly reflected that they were six in number and out of them Raghubar, Rishipal, Mahendra, Krishnapal were armed with lathi, Premi was armed with balkati, Munshi was armed with ballam and thus all the accused persons were armed with lethal weapons and this fact clearly reflects that on 20th July, 1984 by forming an unlawful assembly, they came on the spot to prevent the complainant side from ploughing the field in question and in the said direction they have proceeded to cause injuries in question and even female inmates have not at all been spared.

Record in question reflects that as far as the prosecution is concerned, the prosecution has been very-very specific in explaining the injuries that has been caused on the body of Munshi and Raghubar as it has been precisely mentioned that at the point of time when injuries were being caused then at the said point of time ballam was taken from the hand of Munshi and lathi was taken from the hand of Raghubar and they have been injured in self defence. Once attack has been launched by accused-appellants, and Duli Chand and Ram Singh had received bodily injury, then both these persons had every right to protect themselves. A person who is unlawfully attacked has every right to counter attack and attack upon his assailant and cause such injury as may be necessary to ward off apprehended danger or threat. The injuries suffered by Munshi and Raghubar has been appropriately explained in the facts of case.

This Court also proceeds to examine the seat of injuries of Ram Singh and the injuries on his body shows that injury no.1 is on the upper side of the arm, injury no.2 is on the waist area, injury no.3 is also on the waist area, injury no.4 is on the chest and injury no.5 is on the left hand. Contusions in question have swelling and covers a large area of the body part where injuries have been caused. Phoolmati has got injuries on the forearm and on the left side as well as on the upper arm, left hip, thigh and as far as Duli Chand is concerned he has also received injuries on his nose, right forearm, left forearm, right foot beneath right knee, left side of waist on the back side, left thigh upper and outer side, right forearm and behind it, fracture of nose, joints moved and his 5,6 & 7 ribs have been fractured and blood has been found in the cavity. Accordingly, Phoolmati had 6 injuries, Ram Singh had 5 injuries and Duli Chand had 9 injuries. This Court has also perused the injury report of Munshi examined by Dr. D.D. Tyagi and therein the injuries of Munshi reflects that injury no.1 and 2 are on the vital part of the body and injury no.3 is on the left arm and on the index finger. Raghubar has also got injuries wherein injury no.1 is on hip.

Here this much is reflected in the facts of the case that accused-appellants have gone on the spot after forming an unlawful assembly under the belief that there is a sale deed in their favour and the complainant have no right to cultivate and plough the field in question and initial altercation has taken place in between the two persons and thereafter fight has erupted in between the parties wherein injuries have been received. The opposite parties have been unarmed but it appears that when the marpit in question has been ongoing ballam and lathi has been taken away and injuries have been caused to Munshi and Raghubar. This much has also come on record from the statement of the witnesses that after Duli Chand and Ram Singh had been assaulted, then thereafter Raghubar and Munshi have been assaulted in self defence and then Duli Chand and others have been assaulted. In the present case this much is reflected that all the accused persons have gone on the spot armed with lethal weapons with the belief that complainant's have no right whatsoever in the land in question as they have executed the sale deed whereas it was resisted by the opposite parties and this much is clear that in the present case injuries are there from both side but as far as injuries of Munshi and Raghubar are concerned, they have been explained that in self defence it has been caused, and as far as accused-appellants are concerned, the attack that has been launched by them is merciless, looking into the dimension of injuries caused on the body of deceased and injured persons and even if they have been labouring under the impression of right of self defence, the injuries that have been caused are wholly disproportionate than necessary for protection of person and property.

In the facts of the case, it is conclusive that the accused persons armed with lethal weapon have gone on the spot to prevent the opposite party from ploughing the field and therein marpit has taken place where two persons from the side of accused have also received injuries and from the side of complainant Duli Chand has died and others have received injuries and this much has also come on record that after Munshi and Raghubar have received injuries then Duli Chand has been mercilessly attacked, accordingly, prosecution has succeeded to bring home the charges but in the facts of the case, looking into the background of the case that right of private defence of person and property has been claimed, and the right of private defence was not available to the accused being the aggressor, possibility of appellants committing crime without any intention to cause death cannot be ruled out. Apex Court, in the case of Bishna vs. State of Bengal 2005 (12) SCC 657, wherein it was established that complainant party was in possession of the land in question, as also cultivated the paddy and grew paddy, thereupon the question of appellants exercising the right of private defence did not arise and such a right could be claimed by complainant, and accused were aggressors when they had come to field to harvest paddy through hired labourers as they were armed fully and when they were asked not to harvest paddy, they chased and assaulted the witnesses. In this situation right of private defence was not extended and as apparently there had been no intention to kill hence conviction was recorded under Section 304 Part I. Here also the intention to kill does not appear from the facts and circumstances and possibility of appellants committing the crime without any intention to cause death cannot be ruled out, but the seat of injuries, number of injuries does reflect that the appellants had the knowledge that it is likely to cause death and accordingly, the conviction in the present case is altered from section 302/149 I.P.C. to Section 304 part II alongwith Section 149 I.P.C. and sentence of 8 years of R.I. is awarded alongwith fine of Rs.2000/- each and in case of default in depositing the fine to undergo 6 months further R.I. Remaining conviction and sentence is affirmed. The accused appellants, who are alive, namely Raghubar s/o Sohan, Mahendra s/o Raghubar, Krishna Pal s/o Raghubar, Rishipal s/o Raghubar and Premi s/o Chandra be taken into custody to serve out the remaining sentence.

Appeal is party allowed.

(Om Prakash VII, J.)       (V.K. Shukla,J.)
 
Order Date :- 27th of May, 2014
 
A. Pandey

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Allahabad High Court