Judgment:
Vinod Shanker Dave, J.
1. This appeal arises out of a judgment passed by Sessions Judge, Pratabgarh on July 31, 1978, whereby he convicted and sentenced the accused-appellants as under:
Accused-appellant Amar Singh for offences under Section 324, 323 and IPC and sentenced him to rigorous imprisonment for three months and to a fine of Rs. 200/- for offence under Section 324 IPC and rigorous imprisonment for one month for offence under Section 323 IPC and to a fine of Rs. 200/- for offence under Section 341 IPC.
Accused-appellant Chhatar Singh for offences under Sections 325 & 341 IPC and sentenced him to rigorous imprisonment for four months for offence under Section 325 and to a fine of Rs. 200/- for offence under Section 341 IPC and in default of payment of fine to further undergo rigorous imprisonment for one month.
The accused-appellant Bahadur Singh for offence under Section 325 and 341 IPC are the accused appellant Vishnusingh for offence under Section 323 and 341 IPC. Both these appellants have been given protection under Section 4/6 of the Probation of Offenders Act.
2. The case started on a First Information Report lodged by one Gunvant at police station Dhamohar District Chittor wherein it was stated by him that in the morning he along with his brothers Balwant & Ganpat had gone for harvesting the Urd crop from (heir field named as Jambu-wala. They harvested it and at about 3.30 in the noon his father Praduman Kumar came with a tractor. The way to their field is through a Sheda(way) passing through the field of one Chhattar Singh. Chhatar Singh and Amar Singh who were present there told Pradumankumar that they should not pass theit tractor through that way. They also started abusing his father whereupon his father came on the field. At about 6.30, in the evening they were going back to their houses. He, his brother Balvant, Jasvant driver & Gordhan were on field. Makhan Singh was on a horse back and his father was driving tractor. He was following them. They reached near the tractor, Chhatar Singh, Amar Singh, Bahadur Singh, Vishnu Singh Doodia came out of their field and way-layed the tractor. These people were armed with lathies except Amar Singh who was armed with a sickle. Thereafter his father was manhandled, injuries were caused by various weapons as a result of which injuries were sustained by his father. When they tried to intervene they too were not spared. On receipt of this report a case was registered for offence under Sections 341, 347, 149 and 323 IPC and investigation started. This report is Ex. P. 5.and was lodged at 9.00 pm on September 28, 1975, i.e. day of occurrence. On the same day earlier to it Ex. D. 4 report was lodged by Amar Singh accused-appellant wherein Praduman, Gunvant and Balvant were mentioned as the accused who tried to trespass through their land where there was standing crop of Urd & when they were stopped they made an attempt on on them resulting in injuries. On receipt of this report a case under Sections 323, 324 and 34 IPC was registered against the complainant party in this case. Investigation was also carried out in this case where ultimately a final report was given by the Investigating Officer. Case against the present accused was challaned after investigation in the court of Judicial Magistrate Pratab-garh who committed six accused, namely, Amar Singh, Nathulal,Vishnu Singh, Chhatar Singh, Bahadur Singh and Doodia to the court of Sessions for trial for offence under Sections 147, 307, 325, 324, 341, 323 and 149 IPC.
3. The prosecution examined 12 witnesses in support of its case. The accused came with the plea of exercise of right of private defence & examined 3 witnesses in their defence. The learned Sessions Judge accepting the prosecution case held that the accused-appellants wrongfully obstructed the right of way of the complainant party and further caused injuries to them and consequently convicted and sentenced them as indicated above. It is against this conviction and sentence that the present appeal has been preferred.
4. I need neither discuss the evidence in details nor mention the various contradictions in the statements of the witnesses because I am disposing of this appeal on a very short ground on admitted facts and in the background the law of right of private defence of person and property as has been laid down by their Lordships of the Supreme Court reported in Gettipuila Venknta Sive Subbrayausm & Ors. v. The State of Andhra Pradesh and Anr. : 1970CriLJ1004 wherein it has been held as under:
that this conduct on the part of the occupiers and their supporters was sufficient to give rise to a reasonable apprehension in the mind of one of the accused persons that the victims of the assault would have been killed had he not exercised the right of private defence. The use of the gun by the accused against the members of the opposite faction was thus justified. In a situation like this it was not possible for an average person whose mental exitement could be better imagined than described to weigh the position in golden scales. The accused did not exceed his right of private defence. The fact that the plea of self defence was not raised by the accused and that he had on the contrary pleaded alibi did not preclude the court from giving to him the benefit of the right of private defence; if on proper appraisal of the evidence and other relevant material on the record the court concluded that the circumstances in which he found himself at the relevant time gave him the right to use his gun in exercise of this right. The analogy of estoppel or of the technical rules of civil pleadings is, in such cases inappropriate and the courts are expected to administer the law of private defence in a practical way with reasonable liberality so as to effectuate its underlying object, bearing in mind that the essential basic character of this right is preventive and not retributive.
5. The whole controversy in the instant case is about khasra Nos. 542 and 543. According to the prosecution case khasra Nos. 542 and 543 is Sheda (way) through which the complainant party had a right for going to their field khasra No. 541. According to defence it was a Banjar land of which they had taken possession of and they had been sowing their crop for last few years. According to them even on the date of occurrence there was a standing crop in khasra No. 543 and the complainant party wanted to create a way by damaging the crop, as such they had a right to stop the complainant party from opening a new way by damaging their crop. The crucial evidence is that of Patwari PW 12, Kishan Lal, who has proved Ex. P 17 and Ex. P 18 khasra girdawari and the trace-map of the village and he has stated that khasra Nos, 542 and 543 are without any name and is, therefore, government land. According to his statement on this land there is a Sheda on which no body can prevent others from going. He has stated that on khasra No. 543, Rod Mal, Nathu Lal and Narbhai Singh had wrongful possession from whom the accused persons are said to have taken some wrongful possession. In cross examination this Patwari has admitted that no crop has been sown in khasra Nos. 542 and 543. Then he admits on further cross-examination that on khasra No. 543 in the earlier year Jawar was gown and harvested by accused persons and in the latter year there was a crop of Urd. He also admitted that khasra No. 543 has been included by the accused wrongfully in khasra Nos. 529, 539 and 549. He also alleged to have issued Ex. D. 7 and D. 8 and D. 9 to the accused which are again khasra girdawari and trace-map. Ex. P 17 does not tally with Ex. D. 8 in respect of description and in respect of crop therein. Thus, PW 12 Kishan Lal Patwari has not come with a straight case and has been responsible for creating confusion before this court. In fact it appears to me that he is responsible for issuing wrong copies to the parties. It is difficult to reconcile the two. Ex. P 17 which has been produced with the challan by the Investigating Officer does not show the gram, jawar and Urd in khasra No. 543. He, in fact, it appears, even with held the proper information from the court in not even mentioning khasra No. 543 in this copy. But one thing is certain that he had to admit that no right of way has been shown in either khasra No. 542 or 543 and as such there is no authentic and positive evidence on record to suggest that the complainant party had a right of way to khasra Nos. 542 and 543. This becomes further more doubtful from the cross examination of the prosecution witnesses. PW 2 Praduman Kumar has stated that on this Sheda there are Babool trees which are scattered and the land is uneven and there are big pits. He however, admits that in record this land is not entered as a way. He also admits that on the day of occurrence it was for the first time that he was taking tractor through that Sheda. He also admits that before the accused took the law in their hands, they warned them not to pass through that land and it is after that the beating part started. Gordhan Lal PW 4 has stated that he had gone 2-3 times earlier with that tractor through this land and states that is a Gadar through which the tractor had been taken. He also states that there are big pits on this Sheda. PW 5 Gunvant has stated that there is no Gadar of tractor or bullock cart on this way. He says that only once, it may be, he had passed through this way and also admits that the accused before started beating told them not to pass through that way. He admits that the incident took place because his father insisted on taking the tractor through that place. He has given an evasive answer that there is an alternative way in this field. He says that he does not know if there is any way through this field on the Eastern side. Makhan Singh PW 7 has also stated that the accused had categorically stated that they do not pass through this land because this is not the way. He has admitted that there was a standing crop on this land where from right of way was being insisted. He has stated that Chhatar Singh has sown the seeds and the crop was standings on this way. He also admits that Chhatar Singh has categorically stated that they should not pass through the crop. Ganpat Lal PW 8 has stated that there is no Gadar through this Sheda & that if they want to go their field they had necessarily to pass through the field of Chhatar Singh. The Investigating Officer has on the the contrary stated that there are no pits on this Sheda and it is uneven land. In one breath he has stated that there is no other way to go to the field of the complainant than this one and when cross-examined he stated that he did not enquire from the witnesses or the neighbours if there is any other way or that there is way on the Eastern side. Patwari's statement I have already discussed above. From all these statements coupled with the documentary evidence, I have no doubt in my mind that the crop was standing in khasra No. 543 which has been termed by the complainant as part of the Sheda. I am also convinced that there is no Gadar as admitted by the Investigating Officer and other witnesses and, therefore, chances that the complainant insisted on opening a new way which was a shortcut, cannot be ruled out. It is also clear from the evidence on record that the accused persons did not take the law in their own hands instead they had requested the complainant party not to pass through the way, thus, insisted for protecting their crop which was standing, but when the complainant forcibly entered their tractor into the crop they took up the arms which too were the necessary implements used by the agriculturists on the field. The very injury by the sickle shows that the accused had not gone to bring the deadly weapons elsewhere and have used the one which was required for harvesting the crop as it was harvesting season. According to the complainant's story itself the accused sowed their own crop which was sought to be damaged by tractor. In these circumstances, there may be truth in the prosecution story but it may not be wholly true and there is a room to doubt that the prosecution has not come up with a true story. In khasra No. 543 there was a standing crop of the accused and if it was being damaged in my considered opinion there was no occasion for accused to have run for taking recourse to law and had a right to prevent the complainant party from damaging the field. Accused themselves have sustained injuries in this incident. This all lead to an irresistible conclusion that the accused were entitled to exercise their right of private defence in respect of their person and property both and the case is squarely covered by the one quoted above.
6. The result is that I accept this appeal, set aside the judgment of the learned Session Judge dated July dated July 31 conviction and sentence and acquit the accused-appellants of all the offences. They are on bail and need not surrender to their bail bonds. Fine, if any paid, shall be refunded to them.