JUDGMENT
J.R. Chopra, J.
1. This revision petition arises out of the appellate order passed by the learned Sessions Judge, Churu in Criminal Appeal No. 19 of 1982, decided on 18 8-1986 whereby the learned Sessions Judge has acquitted the accused-petitioners Kamlesh, Sitaram, Akhlesh and Banshidhar of the offences under Sections 147, 148, 447 and 325/149 IPC and the accused-petitioner Falgun of the offences under Sections 148, 447, 147, IPC. How ever, he has convicted the accused-petitioners Kamleh, Sitaram, Akhlesh and Banshidhar of the offence under Section 323, IPC and the accused-petitioner Falgun of the offence under Section 325, IPC and has ordered to release them on probation under Section 4(1) of the Probation-of Offenders Act provided each of them furnishes a surety bond in the sum of Rs. 2500/-that they shall maintain peace and be of good behaviour for a period of one year. He has further ordered that each of the accused-petitioners shall pay Rs. 100/- as compensation to the injured-persons and shall further deposit Rs. 400/- each as costs of the litigation in the Court.
2. The facts necessary to be noticed for the disposal of this revision petition briefly stated are: that Khasra No. 540 and 541 are situated in the town of Churu on its eastern side. It is alleged that Jaisaram and Malaram Raigors are cultivating this land since S.Y. 2011. It is further alleged that this land belonged to one Pooranmal Vyas. The petitioners are the relations of Shri Pooranmal Vyas and they got this land recorded in their favour in the revenue records and on the basis of that, they were trying to dispossess Jaisaram and Malaram from these two fields. It is alleged that on 22-7-1973 Jaisaram and Malaram cultivated this field and when on 23-7-1973 they went to cultivate this field, the accused-petitioners Falgun, Kamlesh, Sitaram, Akhlesh and Banshidhar came there, gave beating to Jaisaram and Malaram’s wives and turned them out of the field. These two ladies went to their home and complained that they are not being allowed to cleanse the field and the accused petitioner have forcibly turned them out of the field. A complaint was filed in the court of the learned Sub-Divisional Magistrate, Churu in which a temporary injunction was granted on 14-8-1973. It is further alleged that on 19-8-1973, Jaisaram, Malaram and their wives went to the field and when they tried to start weeding operation, the accused-petitioners gave beating to them and turned them out of the field and it was on account of this that this report was lodged on that very day in the noon.
3. On the basis of this report, the FIR (Ex. P 1) was recorded. Site was inspected and site plan and site inspection memo were prepared. The injuries of the complainants were got medically examined. Jaisaram received as many as three injuries, which are all simple in nature and by blunt weapon. Mst. Mali wife of Jaisaram received one simple injury caused by blunt weapon. Mst. Dhani wife of Malaram received three simple injuries caused by a blunt weapon. Malaram received in all 6 injuries which are by blunt weapon. Out of these six injuries, one injury is alleged to be grievous in nature because it has caused a fracture of his right ulna bone.
4. After usual investigation, the case against the accused-petitioners was challaned in the court of learned Chief Judicial Magistrate, Churu. The learned CJM convicted the accused-petitioners Kamlesh, Sitaram, Falgun, Akhlesh and Banshidhar of the offences Under Sections 147, 148, 323, 447 and 325/149 IPC and sentenced them to different sentences. On appeal, their conviction and sentence under Sections 147, 148, and 147 IPC were set aside and the accused-petitioners were convicted and sentenced as aforesaid. Hence this revision.
5. I have heard Mr. M.D. Purohit, the learned Counsel appearing for the accused-petitioners and Mrs. Chandralekha, the learned Public Prosecutor for the State and have carefully gone through the record of the case.
6. Mr. M.D. Purohit, the learned Counsel appearing for the accused-petitioners has submitted that the accused-petitioners could not have been held guilty of the aforesaid offences because they had a right to evict the treaspassers from there field and in doing so, they could cause simple and grevious injuries and that exercise of the right cannot be said to be excessive in the facts and circumstances of this case. He has submitted that it has been admitted by the complainant themselves that the disputed field belongs to Pooranmal and it has been recorded in the Khatedari of the accused-Pooranmal in S.Y. 2011 and since then, they are cultivating this field. They have stated that they were paying ‘Hasal’ to Shri Pooranmal but they have not produced any receipt about it. PW 2 jaisaram has categorically admitted in his cross-examination that Khatedari of this field stands in the name of accused-petitioner Falgun but he has submitted that it has been got recorded of Jaisa Ram has stated that on the first occasion, when they went to cleanse the field, they were turned out of the field by the accused-persons. The accused petitioners gave beating to her and her sister-in-law (Devrani). She has submitted that on that day, they did not cultivate the field. They only wanted to cleanse the field PW 5 Mst. Dhanni has stated that on that day as soon as they entered the field, they were turned out. Thereafter, they went to that day field only after about 15-20 days, Mst. Dhanni has stated that on the first occasion, the accused-persons turned them out of the field and asserted their right of possession on that field. She has further stated that on the second occasion, when they went for weeding operations, the field was already cultivated, which clearly shows that the field was cultivated by the accused-petitioners. It was the accused-petitioners who have shown their crop and when the complainant party entered into that field for weeding operations knowingfully well that they have not cultivated the field as the field was cultivated by the accused-persons and it was in their possession, the accused-petitioners were within their right to infict the injuries to the complainant party in order to stop their entry in their field. PW 2 Jaisaram has admitted that it is possible that before they entered the field, the accused-persons might be sitting there. PW 5 Mst. Dhanni has stated that when they went for weeding operations, the field was already cultivated and it was the first occasion when they went to start weeding operations in that field which clear means that the complainant party has not cultivated this field. PW 7 Bhinwaram has admitted that in the field Bajra and Moth crop was standing and when the complainant party entered the field, the accused persons told them to go out of the field which belongs to them. He has further stated out the complainant party from the field. Bhinwaram has further stated that in that area, the field is cultivated only once and that cultivation was done by the accused-persons. It is, therefore, clear from the evidence of the prosecution itself that the complainant party was turned out of the field before about one month of the occurrence and when the complainant party again went to that field, it has already been sown by the accused-petitioners and they were protecting their own crop. When the complainant party entered into that field for weeding operations though the field was in peaceful possession of the accused-petitioners and they have cultivated it and as such the accused petitioners had a right to inflict simple or grievous injuries to the trespassers in exercise of their right of private defence of property In this case, three of the injured persons have received simple injuries and only Malaram has received 5 simple and one grievous injuries and that in the facts and circumstances of this case, cannot be said to be excessive.
7. Kamlesh Joshi, the learned Public Prosecutor appearing for the State could not oppose these submissions which are based on evidence. The learned Sessions Judge has not taken into consideration their admissions which the prosecution witnesses have made in their statements before the learned trial court. When it is admitted case of the prosecution that Falgun etc. are the Khatedars of this land, and it has further been admitted by the prosecution witnesses viz., Mst. Mali, Dhanni, and Bhinwaram that this field was cultivated by the accused-petitioners after turning the complainant party out of the field, the complainant party’s entry in the field amounts to a criminal trespass and the accused petitioners had a right to turn them out of the field by use of force. I, therefore, feel that in the facts and circumstances of this case, the learned lower court should not have maintained the conviction of accused-petitioners Kamlesh, Sitaram, Akhlesh and Banshidhar under Section 323, IPC and of the accused-petitioner Falgun under Section 325 IPC.
8. In the result, I accepted this revision petition, set aside the judgment of the learned Sessions Judge, Churu dated 18-8-1986 as also the judgment of the learned Chief Judicial Magistrate, Churu dated 3-2-1982 and acquit the accused-petitioners of the offences with which they were charged in this case. The accused-petitioners are on bail. They need not surrender to their bail bonds.
9. Let the record of this case be sent to the learned lower court forthwith.
