Full Judgment
Fakhruddin, J.
1. Appellants have preferred this appeal aggrieved by the judgment of conviction of sentence dated 14-10-1989 delivered by Additional Sessions Judge, Shahdol in Sessions Trial No. 20 of 1989 (State of M.P. v. Govind Singh and others) whereby appellants 1, 3, 4 and 5 have been convicted under Section 304 Part-I read with Section 34, Indian Penal Code and sentenced to seven years rigorous imprisonment and fine of Rs. 200.00 each and appellant No. 2 Nevariya son of Phadali (now dead) has been convicted under Section 304 Part-I read with Section 34, IPC and sentenced to three years' rigorous imprisonment and fine of Rs. 200.00.
2. Briefly stated the prosecution story is that land bearing khasra No. 257 is near Jeelan Nala at village Chhapani. It was sold in public auction by Shahdol Co-operative Society as the loan was not re-paid by Bhagloo, to Prem Singh Dixit, who purchased it in the name of Rajesh Singh Dixit. Patta was issued in favour of Rajesh Singh Dixit. The prosecution alleges that Prem Singh Dixit had leased out the land to deceased Govind Singh son of Pancham Singh. It is further alleged that the said Prem Singh Dixit had sold the land secretly to accused Govind Singh who purchased it in the name of his son Jai Singh (appellant No. 4) in whose name patta had also been issued.
Deceased Govind Singh had filed a suit against accused Jai Singh, his vendor Rajesh Singh and original patta holder Bhagloo (P.W. 12 in the Court of Civil Judge Class II, Rajendragram and the same was registered as C.S. No. 9-A of 1987. One party or the other used to sow the crops on the land.
3. Admittedly, the land in question originally belonged to Bhagloo (P.W. 12). The learned Trial Judge has mentioned this fact in Paragraph 2 of the judgment. According to the prosecution story, it is alleged that on 18-11-1988 at about 11 a.m., Ram Singh (P.W. 1), his father Govind Singh (deceased), mother Dhaniyabai (P.W. 9) and wife Smt. Doopa alias Kariyain (P.W. 4) were cutting the crop in the field 'Kachhar Khet'. At that time, accused persons came there armed with lathis and knife and started quarrelling, threatening to life, pelted stones and gave lathi blows. It is alleged that accused Govind Singh son of Nevariya took out a knife from pocket and inflicted on the head of deceased Govind Singh. Ram Singh (P.W. 1), Bhola Prasad (P.W. 3) and Dhaniyabai (P.W, 9) went to the Police Station and lodged a report of the incident (Exh. P-1) which was registered as Crime No. 61 of 1988 for offences punishable under Sections 147, 148, 294, 323, 302 read with Section 149, IPC. Injured were sent for medical examination. The dead body of Govind Singh was sent for post mortem. After usual investigation, chalfan was filed in Court.
4. The defence of the accused was that they were bona fide purchasers for value of Rs. 10,000.00 through registered sale-deed of the land in dispute,they were in possession of the land and had sown crops. They further contended that the complainant party was aggressor and wanted to unsettle possession. When the accused party which had sown the crop came to cut it, it was told by them to the complainant party that they should not interfere since the case had been filed and let the same be decided but the request of accused yielded no result and the complainant party started quarrelling with accused persons who acted in right of private defence of person and property.
5. The prosecution examined as many as 13 witnesses, namely : P.W. 1 Ram Singh, P.W. 2 Mangal, P.W. 3 Bhola Prasad, P.W. 4 Doopa alias Kariain, P.W. 5 Gokul, P.W. 6 Chhotelal, P.W. 7 Daduram Dwivedi, P.W. 8 Dr. A.K. Verma, P.W. 9 Dhaniyabai, P.W. 10 Moti Singh, P.W. 11 Dhanna Lal, P.W.12 Bhagloo and P.W. 13 Jayant Singh (S.O.). Learned counsel for the appellants submitted that Jai Singh was the purchaser of the land in question. He was in possession of the land. It was the complainant party which was aggressor. Learned counsel relied upon the evidence of P.W. 7 Daduram Dwivedi (Patwari) who has stated that patta of the land was in favour of Jai Singh who was in possession thereof. It was contended that the complainant party started quarrelling and hence the accused persons acted in exercise of their right of private defence of person and property. In support of his contention, learned counsel further relied on the finding recorded by the learned Trial Judge in Paragraphs 36 and 37 to the effect that though the accused had right of private defence but they exceeded in exercise of the same. Learned counsel for appellants contended that it was accused party which was in possession of the land. He read out the evidence of P.W. 7 Daduram Dwivedi, Patwari (Paragraph 2) whose evidence was recorded on 12-5-1989. P.W. 7 Daduram Dwivedi has deposed that he was having knowledge that for the last over two years, Jai Singh in whose favour patta existed and who was in possession of the land, was sowing and reaping crops over the land in question. The said witness has also stated in his deposition that accused Govind Singh is resident of Chhapani and deceased Govind Singh was resident of village Jeelan and the land khasra No. 257 situates between the two villages distance of which is about 3-4 furlongs. Learned counsel contended that if the appellant Jai Singh was in settled possession, as stated above, he had a right to protect his possession. The words 'settled possession' mean clear and effective possession of a person and even if he is a trespasser, he is entitled to defend his property and such a right is available even against the true owner. In support of the contention, learned counsel placed reliance on decision of Supreme Court reported in AIR 1968 SC 702. It was further contended that since the right of private defence of person and properly was available to the accused, therefore question of applicability of Section 149, IPC does not arise. Learned counsel contended that where individual act could not be attributed to any particular individual who had exceeded the right of private defence, the other persons would not be liable to be punished with the aid of Section 149 or Section 34, IPC. Reliancehas been placed on Joginder Ahir and others v. State of Bihar (AIR 1971 SC 1834) where the Supreme Court has observed in Paragraph 4 as under :--
'They certainly had the common intention of defending the invasion of the right of property. While doing so if one or two out of them took it into his or their heads to inflict more bodily harm than was necessary, the others can not be attributed the common intention of inflicting the injuries which resulted in the death of the deceased. Section 34 can only be applied when a criminal act is done by several persons in furtherance of the common intention of all. No overt acts had been proved or established on the part of the appellants which showed that they shared the intention of the person or persons who inflicted the injury or injuries on the head of the deceased which led to his death. They can not, therefore, possibly be held guilty of an offence under Section 304 Part-II read with Section 34 of the Indian Penal Code.'
Learned counsel contended that a person in possession of property has a right to protect the possession as well as the property and where there is actual invasion of his rights and an attempt on his person by others, he can defend himself and his property by force and to collect such members and such arms, as required. Learned counsel further contended that the case is squarely covered by the decision of this Court in the case of Krishan Kumar and others v. State of M.P., 2001(1) M.P.H.T. 45 (DB) = 2000(1) JLJ 336.
Shri Joshi, learned counsel for the State, on the other hand, supported the judgment of the learned Trial Judge.
6. From the prosecution evidence (Exh. P-1 FIR) itself, it is clear that it was accused Govind Singh who gave fatal blow by knife which resulted in the death of deceased. Exh. P-7 medical report goes to show that it was this injury which resulted into the death of deceased. On the basis of material on record, if the prosecution case is accepted as it is, it would be appellant No. 1 Govind Singh who is responsible for causing death of the deceased. So far as other accused are concerned, they can not be held liable for commission of offence under Section 304, Part-I. The appellant No. 2 Nevariya (now dead) who was released on bail on 8-12-1989 had remained in jail for about one year, so also the appellant No. 4 Jai Singh. Other accused persons were not granted bail. They have already undergone the sentence. Be that as it may, so far as the merits of the case are concerned, it is the appellant No. 1 Govind Singh who is found guilty of offence under Section 304, Part-I, IPC. So far as appellant Nos. 3 to 5 are concerned, the learned Trial Court has recorded the finding that they had also exceeded right of private defence as they had also given beating to the complainant party. Section 97 of the Indian Penal Code envisages right of private defence of body and of property subject to the restriction enunciated in Section 99 of the IPC. From the evidence on record, it can not be inferred that the said appellants exceeded the right of private defence as the injuries caused by them to the complainant party are not of grievousnature. Hon'ble Supreme Court in the case reported in AIR 1968 SC 702 has held that since the right of private defence of person and property was available to the accused, question of applicability of Section 149 or Section 34 does not arise. It was further held that where individual act could not be attributed to any particular individual who had exceeded the right of private defence, the other person would not be liable to be punished with the aid of Section 149 or Section 34, IPC. The appellants 3 to 5 are therefore not guilty of the offence of which they are convicted and are entitled for acquittal.
7. Consequently, the appeal is partly allowed in view of discussion aforementioned. Appellant No. 1 Govind Singh is convicted under Section 304 Part-I, IPC instead of Section 304 Part-I read with Section 34, IPC. He has already undergone the sentence of imprisonment awarded. Appellant Nevariya has died, therefore, appeal in respect of him abates. So far as accused Naval Singh, Jai Singh and Hari Singh are concerned, they are acquitted of the offence under Section 304 Part-I, IPC. Their bail bonds and surety bonds are discharged.
Copy of this judgment be forwarded to the Chief Judicial Magistrate, Shahdol.
8. Criminal Appeal partly allowed.