JUDGMENT
M.R. Calla, J.
1. This Criminal Appeal Under Section 374(2) Cr. P.C. is directed against the conviction and sentence awarded to the seven accused-appellants by the learned Additional Sessions Judge, Deeg in Sessions case No. 7/92 (43/91, 37/84) passed on 27th August, 1992. The accused-appellants have been convicted and sentenced as under:
(i)Accused appellant Hari Singh was convicted and sentenced for offence Under Section 302 IPC to life Imprisonment, fine of Rs. 5000/- and in default of payment of fine he shall have further to undergo for 6 months S.I. For offence Under Section 148 IPC to 6 months R.I. fine of Rs. 500/- and in default of payment of fine 1 month S.I. For offence Under Section 447 IPC to 3 months R.I. fine of Rs. 500/- and in default of payment of fine 1 month S.I. For offence Under Section 324/149 IPC to 6 months RI, fine of Rs. 1000/- and in default of payment of fine 2 months S.I. For offence Under Section 323/149 IPC to 1 month R.I. For offence Under Section 325/149 IPC to 6 months R.I. fine of Rs. 2000/- and in default of payment of fine 4 months S.I. and for offence Under Section 3/25 Arms Act to 6 months R.I. fine of Rs. 500/- and in default of payment of fine he shall have further to undergo 1 month S.I.
(ii) Accused-appellants Bachchu &| Mangal were convicted and sentenced for offence Under Section 302/149 IPC to L.I. fine of Rs. 5000/- and in default of payment fine 6 months S.I. For offence Under Section 148 IPC to 6 months R.I. fine of Rs. 500/- and in default of payment of fine 1 month S.I. For offence Under Section 447 IPC to 3 months R.I. fine of Rs. 500/-and in default of payment of fine 1 month S.I. For offence Under Section 324/149 IPC to 6 months R.I. fine of Rs. 1000/- and in default of payment of fine 2 months S.I. each. For offence Under Section 325/149 IPC to 1-1/2 years R.I. fine of Rs. 2000/- and in default of payment of fine 4 months S.I. and for offence Under Section 323/149 IPC to 1 month R.I. each.
(iii) Accused-appellant Leela was convicted and sentenced for offence Under Section 302/149 IPC to L.I. fine of Rs. 5000/- and in default of payment of fine he shall have further to undergo 6 months S.I. For offence Under Section 148 IPC to 6 months R.I. fine of Rs. 500/- and in default of payment of fine 1 month S.I. For offence Under Section 447 IPC to 3 months R.I. fine of Rs. 500/- and in default of payment of fine 1 month S.I. For offence Under Section 324 IPC to 6 months R.I. fine of Rs. 1000/- and in default of payment of fine 2 months S.I. For offence Under Section 325/149 IPC to 6 months R.I. fine of Rs. 2000/- and in default of payment of fine 4 months S.I. and for offence Under Section 323/149 IPC to one month R.I.
(iv) Accused appellant Man Singh was convicted and sentenced for offence Under Section 302/149 IPC to LI fine of Rs. 5000/- and in default of payment of fine 6 months S.I. For offence Under Section 148 IPC to 6 months R.I. fine of Rs. 500/- and in default of payment of fine one month S.I. For offence Under Section 447 IPC to 3 months R.I. fine of Rs. 500/- and in default of payment of fine one month S.I. For offence Under Section 323/149 IPC to 1 month R.I. For offence Under Section 324 IPC to 6 month R.I. fine of Rs. 1000/-and in default of payment of fine 2 months S.I. and for offence Under Section 325/149 IPC to 1-1/2 yrs. R.I. fine of Rs. 2000/- and in default of payment of fine 4 months S.I.
(v) Accused-applicant/appellant Srichand was convicted and sentenced for offence Under Section 302/149 IPC to L.I. fine of Rs. 5000/- and in default of payment of fine 6 months S.I. For offence Under Section 148 IPC to 6 months R.I. fine of Rs. 500/- and in default of payment of fine 1 months S.I. For offence Under Section 447 IPC to 3 months R.I. fine of Rs. 500/- and in default of payment of fine one month S.I. For offence Under Section 324/149 IPC to 6 months R.I. fine of Rs. 1000/- and in default of payment of fine 2 months S.I. For offence Under Section 325/149 IPC to 1-1/2 years R.I. fine of Rs. 2000/- and in default of payment of fine 4 months S.I. and for offence Under Section 323 IPC to one month R.I.
(vi) Accused-appellant Harli was convicted for offence Under Section 302/149 IPC to L.I. fine of Rs. 5000/- and in default of payment of fine 6 months S.I. For offence Under Section 148 IPC to 6 months R.I. fine of Rs. 500/- and in default of payment of fine 1 month S.I. For offence Under Section 447 IPC to 3 months R.I. fine of Rs. 500/- and in default of payment of fine one month S.I. For offence Under Section 323/149 IPC to one month R.I. For offence Under Section 324/149 IPC to 6 months R.I. fine of Rs. 1000/- and in default of payment of fine 3 months S.I. and for offence Under Section 325/149 IPC to 1-1/2 years R.I. fine of Rs. 2000/- and in default of payment of fine 4 months S.I.
2. With regard to an incident of 4.7.84, which is said to have occured between 6 to 7.00 p.m. in village Bhooraka at Police Station Nagar, one Hari Singh S/o Mangli Gujar informant lodged a written report on 5.7.84 at 6.30 a.m. and this report was received in the court at 9.30 a.m. on 6.7.84. As per the F.I.R. Ex. P-10, there was a litigation going on between the complainant-party and the accused-party for last one year. On 4.7.84, The Tehsildar had come to visit the spot and after the Tehsildar had gone back, after visiting the spot, the appellant Hari Singh started telling in the village that Tehsildar would write in favour of the accused-party on the question of possession, and if the complainant-party i.e. Gujars would say any thing more they will be killed and further that the preparation had been made to kill the Gujars. It is further stated in the FIR that the land about which the dispute is going on is in the Khatedari of complainant-party measuring about 3/4 bigha, which is in possession of the complainant-party, but Mangal had taken the bullocks on the spot and had started ploughing the field and when Hari Singh’s brother tried to stop him and told that the land actually belongs to them and therefore it should not be ploughed by the accused-party, Mangal said that we will do so forcibly. On this juncture Hari Singh Meena, Man Singh, Bachchu, Leela Meena and Shri Chand, Harli Gujar of Bhooraka who were already prepared came armed with lathi, Farsi, Ballam and Katta. Hari Singh Meena was armed with Katta, Man Singh with Farsi, Leela with Ballam and rest of the persons were armed with lathis. At the moment they arrived at, Hari Singh Meena said that kill these Gujars today and all of them came upon both the brothers i.e. Hari Singh Gujar and Girraj. Hari Singh Gujar Says that he ran away and sought for the help and having heard his alrm Kalyan, Nihal Singh, Sheoram, Harbhan abd Hari Ram Brahmin came to their help. Hari Singh Meena said that run away otherwise all of them will be killed. Hari Singh Meena opened fire on Kalyan by Katta which hit in his abdomen. Kalyan became unconscious and fell down. Lathi blows were also given to Kalyan while he was lying down. Nihal Singh and Girraj were also given blows on their body by Farsi, Ballam & Lathi and while intervening Sheoram Harbhan and Hariram etc, also sustained injuries. Nihal Singh & Girraj also became unconscious as a result of injuries and they all were taken to hospital in Matador where Kalyan dies as they reached Alwar. The condition of Nihal Singh & Girraj was also serious and he had come to report the matter from Alwar and it was at the instance of Ram Singh Meena that they had come to beat them and Kalyan was killed. Ram Singh was also telling in the village that the disputed land was to be entered in their favour through Tehsildar, the land belongs to them and if Gujars come, they will be killed. On the basis of this report the case was registered under Section 302, 307, 147, 148 & 149 IPC and after the investigation the challan was filed. Learned Additional Sessions Judge Deeg framed charges against each of the accused-appellant for the respective offences. They all denied the charges and claimed to be tried. The prosecution examined 17 witnesses and the statements of accused-appellants were recorded Under Section 313 Cr. P.C. Four witnesses including two doctors were examined in defence. 43 documents have been exhibited in evidence of prosecution and documents Ex.D-1/A to D/27 were produced in defence. It appears from the original record that after marking the documents Ex.D-1/A to Ex.D-18, further documents in defence which should have been marked as Ex. D-19 to Ex.D-27 have been again marked Ex.D-9 to Ex.D-17 and therefore in the paper-books which have been filed the documents beyond Ex-D-18 have have shown as Ex-D-19 to Ex.D-27, this mention is being made by us to avoid any confusion on this count and we have also taken further care to mention the dates on which such documents were exhibited while referring to them in the later part of the judgment. Learned Additional Sessions Judge Deeg after trial has convicted and sentenced seven accused- appellants vide judgment dated 27.8.92 as above, rendered in Sessions case No. 7/92 (43/91, 37/84). Against this judgment and order of conviction and sentence the present appeal has been preferred.
3. Mr. Biri Singh appearing for the accused-appellant submitted that it was the case in which the appellants had exercised their right of private defence but the learned Addl. Sessions Judge has wrongly held that right of private defence was not available to them and the same has resulted in their conviction. Mr. Packer Farooque learned Public Prosecutor, supported the view taken by the learned Addl. Sessions Judge and submitted that the right of private defence was not available to the accused-appellant and the learned Addl. Sessions Judge has rightly held against the accused-appellant and they have rightly been convicted.
4. The question as to whether the right of private defence could be available to the accused-appellant and whether it could be so exercised in the facts and circumstances of the case it will be necessary for us to refer to certain facts, as under:
1. The dispute is about a portion of the land in khasra No. 117. Khasra No. 117 belongs to the accused-party and khasra No. 120 belongs to the complainant-party.
2. The disputed portion of the land has been lately marked purporting to be khasra No. 117/148 which the complainant party claims that it belongs to them, while the accused-party’s case is that in fact there is no such khasra No. 117/148 at the site and it was only in the mutation papers that the khasra No. 117/148 was got planted by the complainant party measuring about 3/4 bigha and otherwise this land of so called khasra No. 117/148 is a part and parcel of khasra No. 117 and it belongs to accused- party. Thus both the parties are claiming the right and possession over this part of the land of so called khasra No. 117/148.
3. It is also not in dispute that the litigation about this peace of land was going on between the parties for last one year and the document Ex. A-10 dt. 18.1.86 (referred in paper-book as Ex.D-20) is the injunction order dt. 28.10.83 passed by the court of ACM Bharatpur in the suit which has been filed by the accused- party against complainant-party. This injunction order is reproduced as under:
28.10.83
izkFkhZx.k odhy mi- 1 mUgksaus ;g izkFkZuk i= vUrxZr /kkjk 212 vkj- Vh- ,DV is’k fd;k geus cgl odhy izkFkhZ dk rjQ ls lquh rFkk izLrqr djnk nLrkostkr dk voyksdu fd;kA ok ,rokj c;ku gYQh ,oa izLrqr djnk nLrkostkr ds vk/kkj ij izkbek Qslh dsl cSysUl dUlhuks;sUl oknh&izkFkhZ ds gd esa d;kl gksrk gSA vr% vLFkkbZ fu”ks/kkKk bl vez dh tkjh dh tkos fd [k- ua- 117@1&9] 117@148@0&14] okds xzke Hkwjkdk rg- uxj esa izfrFkhZx.k dks ikcUn fd;k tkos fd [k- ua- 117@1&9 esa etkger enk[kyr o 117@148 dks jge oDr eqRrfdy u djsA izfroknhx.k dks tks Hkh mt gksA og mi- vnkyr gksdj fnukad 11-11-83 dks is’k gksosA izfr lc jft- uxj Hksth tkosA
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5. This injunction order had been passed in the revenue suit filed by the accused-party and the plaint is available on record as Ex.D-9 dt. 18.1.86 (referred in the paper-book as Ex.D-19) and in this suit filed on 28.10.83 the accused-party had come with the case that in fact khasra No. 117/148 was not in existance on the spot and the complainant party had got it entered in their name at the time of settlement in collusion with the employees of settlement department, and otherwise they have no title and yet they say that they were in possession over the land of khasra No. 117/148. Similarly the reference may also be made to Ex.P-7 which is an injunction order passed by the Revenue Court against accused-persons on 11.11.83, in the suit which has been filed by the complaint-party and this injunction order is reproduced as under:
11.11.83
vkt ;g izk- i= /kkjk 212 vkj- Vh- ,DV is’k fd;k x;k gSA izk- i= ntZ jftLVj fd;k tkosA geus cgl odhy izkFkhZ i{k rjQk ls lquh i=oyh esa izLrqr nLrkostkr dk voyksdu fd;kA ok ,rokj djus c;ku gYQh o nLrkosrh lk{; ds vuqlkj izkbek Qslh dsl o cSysUl vkQ dUohuh;sUl oknh ds gd esa Qk;y ekeyk gksrk gSA izkbek Qslh izekbt dh oknh uk gh Bgjrk gSA vr% vLFkkbZ fu”ks/kkKk fo:) izfroknhx.k bu vkbnk dks tkjh dh tkrh gS fd os vius vius rd dk [k- ua- 117@148 okds xzke Hkwjkdk rg- uxj esa dCts lcwr oknh esa etkger o enkoyr u djsA izfroknhx.k dks bl vLFkkbZ fu”ks/kkKk ds fo:) tks Hkh mt gks og mifLFkr vnkyr gksdj fnukad 9-12-83 dks is’k gksosA
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6. A document Ex.D/11 dt. 18.1.86 (referred in the paper- book as Ex.D-21) Istgasa (complaint) dt. 9.2.84 is also there on record which was filed by Sh. Ram Singh, brother of one of the accused-appellant Mangal and this complaint was registered at No. 57/84 Under Section. 107/116 Cr. P.C. Document Ex.D-14 dt. 18.1.86 (referred in the paper-book as Ex.D-24) shows that two suits said to have been filed by the accused-party and the complainant-party were consolidated on 15.6.84, thereafter on 23.6.84 vide Ex.D/13 dt. 18.1.86 (referred in paper-book as Ex.D-23) after hearing arguments on application of temporary injunction the court ordered that Tehsildar of village Nagar may ascertain as to whether any khasra No. 117/148 is in existance or not any may sent the report. In pursuance of this order dated 23.6.84, the Tehsildar Nagar who has been examined In this case as PW.6 went along with the Patwari PW.5 and he made the report Ex.P-6 and has mentioned therein that in map khasra No. 117/148 was there, but on spot there is no such filed. The report made by the Tehsildar Nagar on the basis of said inspection dt. 4.7.84, is as under:
mijksDr izlax esa ikyu esa fnukad 4-7-84 dks ekSdk ns[kk x;k gSA [k- u- 117@148 Hkjkdk uD’ks esa vyx [ksr cuk gqvk gSA ysfdu ekSds ij vyx [ksr ugha cuk gqvk gSA
7. Ex.D/12 dt. 18.1.86 (referred in paper-book as Ex.D-22) is the site-map which shows khasra No. 117/148 with dotted lines between khasra Nos. 117 and 120. We called upon both the sides to give the actual measurements of whole khasra Nos. 117 and 120, but it is submitted before us that actual measurements have not come on record.
8. We have gone through the statements of eye-witnesses that is PW.8 Giraj, PW.9 Sheoram, PW.10 Harbhan Singh, PW.12 Hari Singh, PW.13 Hail Ram and PW.14 Nihal Singh and have also perused the post-mortem report of deceased Kalyan Ex.P-17. We have also gone through the injury reports of PW.10 Harbhan, Ex.P-12, PW.14 Nihal Singh Ex.P-15, PW.8 Giraj Ex.P-16, PW.13 Hari Ram Ex.P-13 and PW.9 Sheo Ram Singh Ex.P-11. Under Section 27 of the India Evidence Act the recovery of a lathi has been made from Srichand vide Ex.P-37, is the spear has been recovered from Leela vide Ex.P-38, the lathi has been recovered from Harli vide Ex.P-39, the lathi has been recovered from Bachhu vide Ex.P-40 and the Katta has been recovered from Hari Singh Meena vide Ex.P-41. We have also gone through the statements of PW.8 Giraj. From the evidence available on record it is clear that there was a serious dispute about the land pertaining to khasra No. 117/148 and both the parties obtained injunction orders in the respective revenue suits filed by them. The statements of PW.5 and 6 Patwari and the concerned Tehsildar show that there was no demarcating line between khasra Nos. 117 and 120 for khasra No. 117/148. In cross- examination they have clearly stated that on spot they did not see the khasra No. 117/148 in existance. PW.5 Budhi Lal, Patwari also stated that he doesn’t know that what was the number of khasra No. 117/148 prior to the settlement, khasra No. 117 is in khatedari of Mangal and it is in his possession and during his service period he didn’t see on spot any khasra No. such as 117/148. PW.8 Giraj has stated that accused-party and complainant party were all trying to plough the land of khasra No. 117/148 and the complainant party lastly ploughed the land before a period of one year from the date of incident. He has stated as under:
iqjkus fjdkMZ ij Hkh ikSu ch?kk [ksr cuk gqvk gS o u;s fjdkMZ ij Hkh cuk gqvk gS exj Mhy dh tcjnLrh ls tksr ysrs gSaA eqyfteku us 5&6 eghus igys ikSu ch?kk okys [ksr dh Mksy tcjnLrh tksr Mkyh FkhA vkSj tksr dj vius [ksr esa feyk ysrs FksA ge Mksy cuk nsrs gS vkSj ;g tksr nsrs gSaaA ekjihV ls ,d lky igys ikSu ch?kk [ksr dh Mksy rksM+ dj vius [ksr esa eqyfteku us vk[kjh ckj feyk yh FkhA*
9. This witness has also stated that he did not make any report of this act of the accused-party anywhere. He also stated that the deceased Kalyan had nothing to do with the land in dispute and there was no relation with Kalyan. He has also stated that the accused-party had no enmity with Kalyan. This witness has also stated that accused-appellant Hari Singh Meena had shown Katta to him, thereupon he sought for help when the other accused-appellants came. Hari Singh Meena had fired by Katta and as a result of which Kalyan received injury in his abdomen. In this case Harbhan Singh PW.10, Nihal Singh PW.14, Giraj PW.8, Hari Ram PW.13, and Sheoram Singh PW.9 have also received injuries as per injury reports Ex.P-12, Ex.P-15, Ex.P-16, Ex.P-13 and Ex.P-11 respectively. The evidence of the eye-witness to which reference has already been made hereinabove as also the statements of PW.5 and PW.6 and another witness show that there was litigation between the parties and there appears to be a clear dispute about the land with reference khasra No. 117/148. From the statement of PW.8 it is clear that the caused-party had demolished the demarcating dol’, lastly one year prior to the date of incident and therefore, it appeals that the alleged incident took place after the departure of PW.5 and PW.6 from the spot, and it appears to us that the accused-appellants may have acted to retain the possession of disputed land with them and thus it appeals that most probably the accused-appellants had exercised the right of private defence. The learned Additional Sessions Judge Deeg in her judgment came to the conclusion that the right of private defence was not available to the accused appellants, but in view of the material available on record, we are of the opinion that the accused-appellant may have acted in pursuance of their right of private defence. They could not have had the intention to kill Kalyan with whom, as per PW.8 there was no enmity and Kalyan had come at the time of incident only by chance on call for help to rescue the members of the complainant party, who were already present on the spot. The fact also can not be lost sight of that in the first instance the Katta was shown to Hari Singh Gujar. In this view of the matter the intention to kill Kalyan with any pre-determindtion by the accused-appellants is wanting, and whereas, the accused- appellants may have acted in pursuance of the right of private defence, we disagree with the finding of learned Additional Sessions Judge that the right of private defence was not available to them and on the basis of the evidence and material available on record the possibility cannot be ruled out that the accused-appellant have acted in pursuance of such right. We are also satisfied that the accused-appellants have not exceeded their right of private defence.
10. Consequently, the accused-appellants are entitled to the benefit of doubt and thus this appeal, on behalf of the seven accused-appellants, succeeds. The judgment and order of conviction and sentence, passed by the learned Additional Sessions Judge Deeg in Sessions case No. 7/92 (43/91 37/84) dated 27th August, 1992 is hereby quashed and set aside and all the seven accused-appellants are acquitted of all the offences for which they have been convicted and sentenced. The accused-appellant Hari Singh son of Jeevna Meena is, said to be lodged in Central Jail, Jaipur. He shall be released forthwith, if not required in any other case. The rest of the accused- appellants Bachchu S/o Ramsingh Meena, Mangal S/o Jeevna Meena, Leela S/o Kajoda Meena, Man Singh S/o Hari Singh Meena, Srichand S/o Kundan Gujar and Harli S/o Kundan Gujar are on bail, they need not surrender to their bail bonds. Thus, the appeal is allowed, record to be sent back.