Judgment:
D.P.S. Chauhan, J.
1. The appeal is at the behest of Deepa alias Deepchand and Bego Bai alias Faggo Bai, who were convicted in S.T. No. 18/87, vide judgment and order dated 12-2-88, whereby appellant No. 1 Deepa alias Deepchand was convicted for commission of the offence punishable under Section 302, of the IPC, and was sentenced to imprisonment for life, whereas appellant No. 2 Bego Bai alias Faggo Bai was convicted under Section 302 with the aid of Section 34, of the IPC, and was sentenced to imprisonment for life.
2. The brief facts of the case are that there was dispute between the accused persons and Basodi in relation to the land comprising in Khasra No. 21/3, measuring 8.607 Hectare situated in village Kachhari, P.S. Keolari, Tensil and District Seoni. Basodi Lal claims to have received this land from the maternal grand-mother late Batto Bai, whereas on the basis of sale deed (Ex.D/5) Jeevanlal, the father of Deepa alias Deepchand and his mother Bego Bai wanted to have possession over this land. On 18 9-86, in the morning accused Deepa alias Deepchand and his mother Bego Bai reached the field which is called Talab Bali Jheel. On getting information about it from Sunita Bai (PW/10), deceased Jarnbati accompanied with her daughter Sona Bai (PW/8) went to the field for stopping the accused persons from cultivating the land and sowing the seeds. Jambati Bai on reaching the field stopped Deepa alias Deepchand from ploughing and sowing the field wherein an altercation took place between Jambati Bai and the accused persons. Bego Bai caught hold of the hands of deceased Jarnbati Bai and accused Deepa alias Deepchand stabbed her twice on the chest, as a result of which she died at the spot. Sona Bai (PW/8) gave the information of the incident to her father Shekhan Lai (PW/7), who was working in another field. Shekhanlal came to the spot and found his wife Jambati Bai dead. Shekhanlal (PW/7), husband of deceased! Jambati Bai, lodged First Information Report (Ex.P/13) at Police Station, Keolari giving rise to the registration of an offence under Section 302, of the IPC.
3. Dr. D. K. Shrivastava (PW/15), vide Post-Mortem report (Ex. P/11-A), opined that the cause of death of Jambati Bai was shock due to excessive haemorrhage, as a result of injury to vital organ (heart) of the body.
4. The prosecution examined as many as 18 witnesses. Out of which Sona Bai (PW/8) and Vimalvali Bai (PW/9) are the eye-witnesses of the incident. The defence was that of denial and in the alternative of right of private defence of property, ,
5. Heard the counsel for the appellant and the counsel for the State. The learned counsel for the appellants made two submissions :-
(i) That, so far as appellant No. 2 Bego Bai alias Faggo Bai is concerned, the prosecution has failed to establish her guilt beyond reasonable doubt and the material on record creates a doubt about her complicity in the crime and she de serves to be acquitted.
(ii) That, so far as appellant No. 1 Deepa alias Deepchand is concerned, has case is on a little different footing. Even if his guilt and complicity in the crime is established, at the most he can be held guilty under Section 304-I of the IPC.
6. So far as the first submission is concerned, the evidence of the eye-witnesses was read before the Court. Vimalvati (PW/9), in her statement under Section 164 of the Cr.P.C. (Ex.D/3), has not attributed the role of catching hold of the hands of deceased Jambati Bai by Bego Bai, though, this fact finds place in the F.I.R. (Ex.P/ 13). The question for consideration is regarding the involvement of Bego Bai in the manner allege d by the prosecution. At the first place the manner in which appellant Bego Bai is alleged to have caught hold of the hands of the deceased from front, during the period appellant Deepa alias Deepchand dealt knife blows on her chest, sounds not only unnatural but improbable also. Secondly, even appellant Bego Bai would have run the risk of sustaining injuries at the hands of her soil, appellant Deepa alias Deepchand. It can well be a case of over implication, as appellant Bego Bai happens to be the mother of main accused Deepa alias Deepchand. The above circumstances create a doubt regarding the participation of Smt. Bego Bai in the crime and as such she deserves to be given the benefit of doubt.
7. In respect to appellant No. 1 Deepa alias Deepchand, the learned counsel for the appellants submitted that in alternative the right of private defence of the property was taken before the trial Court, but the trial Court has erroneously discarded the same by holding that he could not prove the fact that he was in possession of the land over which the incident took place. The learned State counsel submitted that the submission has no foundation in view of the statement of Makhanlal (PW/2), as in para 1 of the examination-in-chief, he clearly stated that since last 10-12 years, Basodi is continuing in the possession and in view of this statement it was for the accused persons to have established their possession. The learned counsel for the appellants submitted that the fact was that Basodi was taken in adoption by his maternal grand-mother Batto Bai, and Batto Bai during her lifetime sold the land, over which the incident took place, in favour of appellant's father Jeevanlal through a registered sale deed (Ex.D/5), which contains the following recital :-
^^fcdh ds fnukad ls mijksDr [kjhnnkjdh fch dh xbZ lEifRr gLrkarfjr djds muds dCtk n[ky djk fn, gS A**
This document was executed by Batto Bai, who at that time was the owner of the property and Basodi had no right so far as property was concerned. The transfer of the land was by the right owner in favour of Jeevanlal. There is no material on record to establish that during the lifetime of Batto Bai the possession was with Basodi. The learned counsel invited the attention of the Court to the cross-examination of Makhkhan (PW/2), as contained in para 10, where he has admitted that even after taking Basodi in adoption by Batto Bai, Basodi was not cultivating this land and the cultivation was done by Jeevanlal. The prosecution did not clarify this statement from the witness. The trial Court though has considered the matter but has omitted ,to take into consideration the sale deed (Ex.D/5) and also the quoted recital. The learned counsel also submitted that there is on record the khasra entry relating to the year 1964-65 and 1965-66 wherein the name of Jeevanlal is recorded in the main column as well as column of possession. The learned counsel for the State raised objection to this document that this document was not certified by competent authority. As on the basis of the said, the mutation was effected, the mutation should have been done by the competent authority and should have been ordered by the competent authority, the Tehsildar. The Patwari only carries out the order of the competent authority and issue the extract of khasra and khatoni.
8. It is not necessary in the present case to dilate on the question of proper or improper maintenance of this document (Ex.D/4), as the matter is on the sale deed (Ex.D/5), which establishes the transfer of the possession in favour of the appellant's father and in such situation the burden was not on the accused persons to establish that their possession remained undisturbed subsequently, but such burden was on the prosecution to establish that such possession was disturbed subsequently and as a result of which Basodi came into possession.
9. In view of this, we hold that since the possession of the appellant's father was not disturbed and as such at the relevant time the appellant was in the possession of the land over which the incident took place.
10. In view of this we are of the opinion that right of private defence of property was available to appellant Deepa alias Deepchand, as the deceased was a trespasser. Now the question is whether this right of private defence was rightly exercised within the ambit of requirement of the circumstances so to determine the liability of the, appellant. It is not disputed that the complainant party was unarmed. The origin of the incident was that an altercation took place over the tilling and sowing in the field. Two injuries were caused by Deepa alias Deepchand in the chest of the deceased and that too in quick succession. The above circumstances clearly establish that appellant No. 1 Deepa alias Deepchand exceeded the right of private defence and as such he cannot be exonerated altogether. Since appellant Deepa alias Deepchand has exceeded the right of private defence, he is liable to be convicted. Therefore, his liability under Section 302 of the IPC, cannot be sustained. Instead, he is liable to be convicted under Section 304-I of the IPC. It may be noted that the learned counsel for the appellants placed reliance on the decision of Supreme Court AIR 1979 SC 44 : 1979 Cri LJ 28 [Ghanshyam Das v. State (Delhi Administration)]. It is not necessary to dilate in detail on this case as the case supported the case of appellant No. 1.
11. In view of above, we hold appellant No. 1 Deepa alias Deepchand guilty under Section 304-I of the IPC. Since the appellant has already undergone sentence of imprisonment of little more than 5 years and looking to the fact that he was aged about 22 years at the time of incident and the fact of long lapse of period of 11 years, sentence of 5 years' rigorous imprisonment coupled with sentence of fine of Rs. 10007- (Rupees One Thousand only) would be the sufficient punishment and would meet the ends of justice.
12. Accordingly, the appeal is partly allowed. The conviction and sentence imposed by the trial Court on appellant No. 2 Bego Bai alias Faggo Bai are set aside. She is acquitted of the charge under Sections 302 read with 34 of the IPC. The conviction of appellant No. 1 Deepa alias Deepchand under Section 302 of the IPC, is set aside but he is convicted for the offence punishable under Section 304-I of the IPC, and is sentenced to 5 years' rigorous imprisonment with fine of Rs. 1,000/-. Appellant No. 1 Deepa alias Deepchand is required to deposit the fine within a period of 3 months in the trial Court. In default of payment of fine, he will undergo rigorous imprisonment for a period of one year. Both appellants are on bail. Appellant No. 2 Bego Bai alias Faggo Bai need not to surrender as she has been completely exonerated from the charge. Her bail bonds shall stand discharged. Appellant No. 1 Deepa alias Deepchand, who is also on bail and has already undergone the sentence of 5 years as imposed by this Court, now need not to surrender and his bail bonds shall stand discharged on his depositing the amount of fine of Rs. 1,000/- as imposed on him.