Rajesh Balia, J.
1. This is an appeal by the State against the judgment of learned Addl. Sessions Judge, Churu dated 20th December, 1975 in Sessions Case No. 20 of 1975 whereby the acused respondents Munga Ram alias Adram, Dalvir Singh, Ranvir Singh, Dhoop Singh, Mst. Chandrawati and Mst. Shanti were acquitted of the offences under Sections 148, 447, 302/149, 307/149 and 324 I.P.C. with which they were charged-with.
2. The prosecution case is that disputed field Khasra No. 127 measuring 17 bighas and 4 biswas is situated in Piru Ki Dhani of village Lutana Sadasukh Tehsil Rajgrah Distt. Churu. According to prosecution, the disputed field belongs to complainant party Kishan Gopal, deceased, and his sons Amilal, Banwari & Shivdan and his other brothers. Accused Dhoop Singh, Ranvir Singh and Dalvir Singh are three real brothers and cousins of the complainant party. Accused Mst. Chandrawati is the wife of accused Ranvir Singh and Mst Shanti is the wife of accused Dhoop Singh and accused Munga Ram is the father of accused Mst. Shanti and Mst. Chandrawati who are real sisters. The occurrence took place on 21.6.1975 at about 6 A.M. According to prosecution, complainant party has cultivated the field of Khasra No. 127 some days before the date of occurrence. At about 5.30 A.M. on 21.6.75, Kishan Gopal, deceased, when he returned from call of nature to his home, informed his sons Shivdan Singh, Ramchander and Banwrilal that accused persons are overturning their fields and he alongwith Shivdan Singh Went to the field. On reaching the field, Kishan Gopal, deceased, and Shivdan Singh saw the six accused persons in the field. There, Dhoop Singh and Ranvir Singh caused injuries on the head of Kishangopal and he fell down and when Shivdan Singh intervened, he was also beaten by the six accused persons. In the meanwhile Amilal, another son of Kishan Gopal, also reached the scene of the occurrence and he was also beaten by Mst. Shanti. All the three injured were taken to hospital at about 7.30 A.M. and attended-to by Doctor S.N. Vyas. As a result of injuries, received during the incident, Kishangopal later on died at the hospital.
3. A case was registered against the accused persons and after usual investigation, challan was filed in the Court of learned C.J.M., Churu and the accused were committed to Sessions for trial.
4. The learned Sessions Judge, Churu found that the deceased Kishangopal and Shivdan received injuries at the hands of accused persons and that all the six accused persons did take part in the occurrence. The learned Sessions Judge also found that it is proved beyond doubt that it was Mst. Shanti who had caused injuries to Amilal. However, the learned Sessions Judge found that it was the accused-party who was in possession of the disputed field on the day of the incident and has gone to the field to plough the same and, therefore, it cannot be said that it formed an unlawful assembly. The Sessions Court also found that accused Dhoop Singh received following five injuries in the same occurrence which the prosecution has not explained:
1. Bruise 4″ x 1″ back right side;
2. Bruise 3″ x 1″ below and lateral to injury No. 1;
3. Bruise 1 1/2″ x 1″ below and lateral to injury No. l;
4. Cut wound 1″ x 1/6″ x 1/6″ scalp right parietal bone;
5. Cut wound 1″ x 1/6″ x 1/6″ scalp left parietal bone.
5. In view of the aforesaid findings, the learned Sessions Judge came to the conclusion that accused persons inflicted injuries to Kishangopal, Shivdan and Amilal in exercise of their right of private defence of their person and property and, therefore, they were not guilty of the offences, charged with. Hence this appeal by the State.
6. Learned Public Prosecutor has contended that firstly, it is not proved on record that accused party was in possession of the field on the fateful day but infact complainant party was in possession of the field and, therefore, no right of private defence existed in favour of the accused persons, merely because in the early morning of date of incident, the accused persons have entered the field and committed trespass. Alternatively, it has been argued that at any rate, the accused persons have acted in excess of their right of private defence in causing death of Kishangopal.
7. Having heard learned Counsel for the parties and perused the record, we are of the opinion that both the contentions, raise by the learned Public Prosecutor appearing for the State, do not merit acceptance. There has been voliminous documentary evidence on record in the form of entries in the revenue records in support of the fact that accused persons are holders of 13 bighas and 11 biswas of land in Khasra No. 127 and it is in that land that the alleged incident has taken place. The whole Khasra No. 127 is 17 bighas 4 biswas. Out of this, in 3 bighas and 13 biswas, there are Well, Kund etc. which is not cultivable and which fell to the share of the complainant party and remaining 13 bighas and 11 biswas which is worth cultivation fell to the share of the accused-party. The fact that complainant party had only 3 bighas and 13 biswas of land in Khasra No. 127 is admitted by PW 4 Amilal, apart from the fact that the division of ownership of the said Khasra in aforesaid ratio is amply proved on material in the form of revenue record available on the file, in the form of copies of mutation Ex.D.6 and Ex.D.7, Khasra Girdawari Ex.D.8 and Jamabandi Ex.D.9. Infact, it was even conceded by the learned Public Prosecutor in the trial that so far as the disputed land measuring 13 bighas and 11 biswas in concerned the revenue record is in favour of the accused parsons. It may also be noticed that even the prosecution case does not claim that complainant party was owning the land in dispute or was cultivating the land in its own right. The prosecution case is that the complainant was sowing the farm with the consent of he accused party. Obviously, if the complainant party was sowing the farm with the consent of the accused, party, there could have been no cause of action between the two. It also does not stand to reason that when parties had already divided their respective shares and were in possession of the respective shares, where did the occasion arise for ploughing the field of the accused persons by the complainant party with their consent. We, therefore, are of the opinion that the learned Sessions Judge, Churu has rightly appreciated the evidence and arrived at the finding that the accused party was in possession of the disputed field where the occurrence has taken place and they had a right of private defence to guard their possession against the complainant.
8. The next question which arises for consideration is whether the accused persons have exceeded the right of private defence in causing death of Kishangopal. It is evident even from the case of the prosecution that on the fateful morning, the accused persons were already in the field and were ploughing the same and they had in their possession agricultural implements like ‘jedi’, ‘ Rampari’ etc. It was Kishangopal with his sons who had reached to scene of the occurrence armed with “pharsi’ and ‘lathies’. The injuries found on the person of accused Dhoop Singh include amongst other injuries two cut wounds of one inch deep on both sides of parietal bone and the same have been caused by ‘pharsi’ which was in the hand of kishangopal. Clearly, complainant party was the aggressor and the bodily injuries, received by accused Dhoop Singh may reasonably cause apprehension in the mind of Dhoop Singh that grievous hurt may be the consequence of assault, given by Kishangopal and he in the defence of his body, if causes death of the assailant, it cannot be said that he has exceeded the right of private defence, The gravity of apprehension caused in the mind of person who is receiving assault as to the nature of danger stering at him, cannot be weighed in golden scales. It has to be viewed from the point of view of the state of mind of the person concerned and the surrounding circumstances in which the person is receiving the assault so long as the apprehension to life property or of grievous hurt persists the right of private defence remains in operation and the person exercising such right is entitled to stay and overcome the threat. In the present case, it is apparent, that the complainant party had come armed with “pharsi’ and ‘lathies’, while the accused persons were ploughing their field with agricultural implements. While deceased Kishangopal used pharni’ in inflicting blows on the head of accused Dhoop Singh, the accused party had used no other weapon than the agricultural implements which were with them for the purpose of sowing the field. They did not have any other weapon in their possession so as to warrant inference that they had a pre-determined mind to assault the complainant party. Therefore, it cannot be said that the accused persons have acted unreasonably and have exceeded the right of private defence in causing injuries to the complainant party who was aggressor, Reliance in this connection was placed by the learned Public Prosecutor on 1987 Cr.L.R. Raj. 647 in support of their case that the accused have exceeded the right of private defence and they ought to have been convicted under, Section 304 IPC. The facts of the case are clearly distinguishable and have no application to the facts of the present case. That was a case in which the accused persons were the aggressor party and they were claiming right of their private defence to evict the trespassers who had entered the field, It was not a case where the accused persons were in actual physical possession of the field and the complainant party has come as an aggressor to dispossess them from the field. It was not a case where any of the accused party had received injuries in the same incident as in the present case. The principle laid down in Kami v. State of Raj. 1958 Rajasthan P.52 is more apt to be applied to the present case to invoke right of private defence in favour of the accused persons.
9. We, therefore, find no force in this appeal and the same is hereby dismissed. The bail bonds of the accused-respondents be discharged.