Full Judgment
S.K. Pande, J.
1. JMFC, Sehore vide judgment dated 20-10-93 in Cr. Case No. 552/91 convicted the applicant/accused persons under Sections 325/34, IPC and sentenced to undergo R.I. for a period of one year and to pay fine of Rs. 300/-in default to suffer S.I. for a period of one month in Criminal Appeal No. 123/93 arising out of the said judgment, ASJ, Sehore vide judgment dated 26-5-94 maintaining the conviction directed the applicant/accused persons to undergo R.I. for a period of six months and also to pay fine of Rs. 300/-, in default to suffer S.I. for a period of one month under Section 325/34, IPC.
2. This revision under Section 397 of Cr.PC is directed against the aforesaid judgment dated 26-5-94 passed by ASJ, Sehore.
3. Facts in brief are on 23-3-91, Dev Karan was assaulted by the applicants/accused Devi Singh and Dev Singh on the disputed land at Village Shahpura, Police Station Ichhawar, District Sehore. Applicants/accused Dev Singh and Devi Singh were armed with Farsi and Vallam. They inflicted injures to the complainant Dev Karan who was taken to the Police Station by Udai Singh. Report (Ex. P-1) was lodged and Dev Karan was sent for the medical examination. As per Medical Report (Ex. P-10) lacerated wounds alongwith fractures of bones on both the hands were found. Accordingly, the applicants/accused persons were charge sheeted under Section 325/34, IPC relying upon the statement of Dev Karan (P.W. 2), the MFC recorded finding that Dev Karan (P.W. 2) was beaten by the applicants/accused persons with farsi and vallam. Accordingly, they were convicted under Section 325/34, IPC. In Criminal Appeal No. 123/93, the aforesaid finding was maintained however, the applicants/accused were sentenced to undergo R.I. for a period of six months and to pay fine of Rs. 300/- in default to suffer S.I. for a period of one month. It is argued in this revision petition that the Courts below have over looked the facts that Dev Karan (P.W. 2) unlawfully entered in the field in possession of the applicants/accused persons and tried to remove the crops. Accordingly, right of private defence was available to the accused/applicants persons and that the accused/applicant Devi Singh had not inflicted any injury to the complainant Dev Karan.
4. Dr. G.C. Joshi (P.W. 10) on examining Dev Karan found lacerated wounds on his body. No injury by sharp edged weapon has been inflicted to him. Dr. A Bose (P.W. 12) states that on both the hands the bones were fractured. In the injuries were grievous in nature as per report (Ex. P-10), therefore, it has been proved that Dev Karan sustained the aforesaid lacerated wounds as well as fractures on his hands. Dev Karan (P.W. 2) has stated that Dev Singh was having an iron rod in his hands and has inflicted injuries on his head. Thereafter, he became unconscious. Udai Singh (P.W. 1) has stated that the incident was not witnessed by him as he arrived at the spot subsequently and taken Dev Singh to the Police Station. Dev Karan (P.W. 2) has not stated that applicant/accused Devi Singh also inflicted injuries to him by means of Farsi and that as per the statement of Dr. G.C. Joshi (P.W. 10), Dr. A. Bose (P.W. 12), there was no injury to Dev Karan which could have been inflicted by sharp cutting weapon. Therefore, it is clear that no injury to the injured Dev Karan was inflicted by Devi Singh, Dev Singh alone has beaten him by iron rod.
5. Dev Karan (P.W. 2) in cross-examination in Para 5 has stated that crop was sown by applicants/accused persons in the disputed field. Applicants/accused persons asked him not to remove crops. Dev Karan (P.W. 2) has stated that he was in the field where the applicants/accused have sown crops. This is also stated by Jeevan Singh (P.W. 5) in his cross-examination. Accordingly, it is evident that on the disputed land the crop was sown by the applicants/accused persons and Dev Karan (P.W. 2) was trying to remove the crop.
6. In the circumstances the applicants/accused persons had right of private defence. In this context the judgment reported in AIR 1999 SC 1083 has been cited. It is stated that under Section 104, IPC, plea of private defence of property in causing the grievous hurt to Dev Karan was available to the accused/applicants persons. Applicants/accused are entitled to protection of right of private defence of property under Section 104, IPC. Ignoring the facts aforesaid emerging from the statements of Dev Karan (P.W. 2), Jeevan Singh (P.W. 5) recording of conviction under Section 325/34, IPC cannot be said to be proper.
7. Consequently, revision is allowed. Accused/applicants are acquitted of the charge under Section 325/34, IPC and the sentences awarded by ASJ in Criminal Appeal No. 123/93 are set aside. Bail bonds are cancelled.