Criminal Appeal No 282 of 1971
Appeal by Special Leave from the Judgment and Order dated 12 4 1971 of the Allahabad High Court in Criminal Appeal No 190968
SK Mehta for the appellants
DP Uniyal and OP Rana for the respondent 233 RL Kohli for the Intervener
The Judgment of the Court was delivered by FAZAL ALI J
It is a peculiar feature of our criminal law that where a trespasser has succeeded in taking recent wrongful possession of the property vested in the public for common enjoyment the members of the village or the real owner are not entitled in law to throw out the trespasser but have to take recourse to the legal remedies available and if any member of the public tries to secure public property from the possession of the trespasser he is normal ly visited with the onerous penalty of law
This is what appears to have happened in this appeal by special leave in which the appellants appear to have got themselves involved in an armed conflict with the prosecution party resulting in the death of the deceased injuries to some of the prosecu tion witnesses and injuries to three of the accused them selves
The prosecution case in short is that on July 18 1966 at about 7 30 to 8 00 in the morning when Ram Khelawan and his companions were removing weeds from the paddy crop sown by them in the field which included a portion of the Chak Road which had recently been encroached by the complainants  party and amalgamated with their fields Ram Ratan and Ram Samujh armed with lathis and Din Bandhu and Ram Sajiwan carrying a ballam and Biroo respectively entered the field of Ram Khelawan with their bullocks and insited on passing through the field along with their bullocks which according to them was a public road
The complainants protested against the highhanded action of the party of the accused on which Ram Ratan exhorted his companions to assault the deceased Murli as a consequence of which Ram Sajiwan as saulted Murli in the abdomen with his Biroo as a result of which MurIi sustained serious injuries and fell down in the field and ultimately succumbed to the injuries
The other members of the complainants  party namely Ram Khela wan Manohar Sarabjit Mewa Lal and Satrohan were also assaulted by Ram Ratan and his party
Soon after the occurrence Rameshwar Pathak a police officer who happened to be present at the spot recorded the statement of PW 1 Ram Khelawan which was treated as the FIR and after conducting the usual investigation submitted a chargesheet against all the accused persons who were put on trial before the Sessions Judge Barabanki
The Learned Sessions Judge acquitted the accused Din Bandhu and convicted the appellant Ram Sajiwan under section 302 IPC Ram Ratan and Ram Samujh were convicted under sections 32634 IPC and sentenced to eight years  rigorous imprisonment
Three appellants Ram Ratan Ram Sajiwan and Ram Samujh were further convicted under section 447 IPC to three months  rigorous imprisonment and under sections 32434 IPC to two years rigorous imprison ment under each of the two counts
and under sections 32334 IPC to six months  rigorous imprisonment and ordered that all the sentences shall run concurrently
The accused persons filed an appeal before the High Court of Allahabad which was also dismissed and thereafter they obtained spe cial leave of this Court and hence this appeal before us
234 The defence of the accused was that shortly before the occurrence proceedings for consolidation of holdings had taken place in the village as a result of which the Revenue authorities provided a Chak Road which passed through plot Nos 853 854 864 823 and 887
This Chak Road was meant to boa public road to enable the
residents of the village to pass through this road with their cattle
This road happened to be adjacent to the field of Ram Khelawan PW 1 and he took undue advantage of the proximity of the road and encroached upon the same and amalgamated it with his cultiv able field
The accused persons wanted t0 assert their lawful right over the Chak Road and it was the prosecution party which was the aggressor and started assaulting the accused as a result of which three persons on the side of the accused received serious injuries
The accused there fore assaulted the deceased in self defence
Even other wise the accused pleaded innocence
Both the courts below have come to a concurrent finding of fact that the occurrence took place as alleged by the prosecution and that the accused persons were the aggressors and had opened the assault on the deceased
The Trial Court has also the High Court have concurrently found on a full and complete appreciation of the evidence that although the place of occurrence was a part of the Chak Road yet the complainant Ram Khelawan had encroached on the same and some time before the occurrence had brought the land under culti vation over which he had grown paddy crop
The evidence of the Sub Inspector who visited the spot clearly shows that he found paddy crop grown at the height of 4 or 6 digits
The learned counsel for the appellants has not been able to show that the concurrent finding of fact arrived at by the Ses sions Judge and the High Court on this point is in any way not borne out by the evidence
The learned counsel for the appellants submitted two points before us
In the first place he submitted that the finding of the High Court impliedly shows that the accused were trying to assert their lawful right over the Chak Road which was wrongfully occupied by the complainant and was in possession of the villagers
The accused therefore had every right to throw out the complainants  party who were trespassers by force
The accused were therefore acting in the exercise of their right of private defence of person and property and were
justified in causing the death of the deceased particularly in view of the serious injuries received by three of the party of the accused
Reliance was placed particularly on the Injury Reports of Ram Samujh Harnam and Ram Ratan
It appears that Ram Samujh received two injuries one being a lacerated wound 3 cm X 34 cm X 1 cm deep on the posterior part of head and a contusion on the right side of the head while Harnam had four contusions and Ram Ratan had two
lacerated wounds in the region of the ear one punctured wound in the left forearm and one contusion
It was submitted that in view of the serious injuries some of which were inflicted by sharp cutting weapons it would not be said that the appellants had exceeded their right of private defence
The argument is no doubt attractive but on closer scrutiny we find that it is not tenable
In view of the clear finding of the High Court and the Sessions Judge that the land in dispute was in the settled possession of the complainant Ram Khelawan 235 who rightly or wrongly encroached upon the road and convert ed it into his cultivable land the accused had no right to throw the complainant by force
In fact the Sessions Judge found thus There is also no doubt that from the evidence on record adduced by the prosecution and the defence it appears that the Chak Road if any was existing was encroached upon by Ram Khelawan and his family members
So far as the question whether the Chak Road was encroached upon there was hardly any discrepancy between the statements of the prosecution witnesses and the defence
It has been admitted by Ram Khelawan PW 1 that before the occurrence Ram Rattan and several other villagers whose Chaks are situated in the east of Ram Khelawan Chak used to say that he had encroached upon the Chak Road and that in the absence of that Chak Road from where they should take their bullocks to their Chaks
  From these admissions also it is amply proved that in fact there was a Chak Road but it was later encroached upon by the complainant Ram Khelawan
 The High Court also found It is thus clear that assuming that the consolidation authorities had formed a Chak Road adjoining the Chak of Ram KheIawan it had been taken possession of by Ram Khelawan included in his Chak ploughed by him and paddy crop had been sown therein
It is thus obvi ous that Ram Khelawan had established his possession over the land where the incident took place and had been in peaceful possession thereof for 2 to 3 weeks at least before the occurrence took place
 It is well settled that a true owner has every right to dispossess or throw out a trespasser while the trespasser is in the act or process of trespassing and has not accom plished his possession but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner
In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law
In view of the clear finding of the High Court that the complainant Ram Khelawan even after encroachment had established his possession over the land in dispute for two to three weeks before the occur rence for the purpose of criminal law the complainant must be treated to be in actual physical possession of the land so as to have a right of private defence to defend his possession even against the true owner
While it may not be possible to lay down a rule of universal application as to when the possession of a trespasser becomes complete and accomplished yet as this Court has indicated recently one of the tests is to find out who had grown the crop on the land in dispute
In Puran Singh  Others vs State 236 of Punjab1 this matter was comprehensively considered and on of us Fazal Ali J who spoke for the Court observed as follows We however think that this is not what this Court meant in defining the nature of the settled possession
It is indeed difficult to lay down any hard and fast rule as to
when the possession of a trespasser can mature into a settled possession
But what this Court really meant was that the posses sion of a trespasser must be effective undis turbed and to the knowledge of the owner or without any attempt at concealment
For instance a stray or a casual act of possession would not amount to settled possession
There is no special charm or magic in the word settled possession  nor is it a ritualistic formula which can be confined in a strait jacket but it has been used to mean such clear and effective possession of a person even if he is a trespasser who gets the right under the criminal law to defend his property against attack even by the true owner   
Thus in our opinion the nature of possession in such cases which may entitle a trespasser to exercise the right of private defence of property and person should contain the following attributes i that the trespasser must be in actual physical possession of property over a sufficiently long period ii that the possession must be to the knowledge either express or implied of the owner or without any attempt at concealment and which contains an element of animus pros sendie
The nature of possession of the tres passer would however be a matter to be decided on facts and circumstances of each case iii the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced in by the true owner and iv that one of the usual tests to determine the quality of settled possessions in the case of culturable land would be whether or not the trespasser after having taken possession had grown any crop
If the crop had been grown by the trespasser then even the true Owner has no right to destroy the crop grown by the trespasser and take forcible possession in which case the tres passer will have a right of private defence and the true owner will have no right of private defence
 In this case there is a clear finding of the High Court and the Sessions Judge that the complainant Ram Khelawan had encroached upon the land in dispute had converted it into culturable field and had grown paddy crop which the com plainants  party was trying to weed out on the day when the occurrence took place
In these circumstances therefore the complainant was undoubtedly in posses 1 1975 Supp
SCR 299
237 sion of the land and the appellants had no right to commit trespass on the land and engage the complainants in a seri ous fight
As the complainant Ram Khelawan was in peaceful possession of the land to the knowledge of the appellants he was in law entitled to defend his possession
The com plainant therefore was fully justified in protesting to the accused when they tried to pass through his field and caused damage to the paddy crop by forcibly taking the bullocks through the field
In these circumstances the appellants who were undoubtedly the aggressors and had opened the
assault could not claim any right of private defence either of person or property
For these reasons therefore we agree with the finding of the High Court that the accused are not entitled to claim the right of private defence nor can it be said that in causing the murderous assault on the deceased they had merely exercised their right of private defence of property
It is true that the appellants were trying to exercise their lawful right over a portion of the land which had been left apart as a public road for the use of villagers by the Revenue authorities but as a complaint had already been filed before the Pan chayat the appellant should have allowed the law to take its course instead of taking the law in their own hands by making an armed trespass into the property
However there can be no doubt that there was no common intention on the part of all the accused to cause the death of the deceased Murli or to cause grievous injuries to him which was an individual act of the appellant Ram Sajiwan
The other appellants Ram Rattan and Ram Samujh therefore cannot be convicted under sections 32534 IPC Another point canvassed before us by counsel for the appellant was that although three persons on the side of the accused had sustained serious injuries the prosecution has not given any explanation which shows that the origin of the prosecution is shrouded in mystery
This contention is also without any substance
The evidence of the eye witnesses examined by the prosecution clearly shows that some of them were also armed with lathis and sharp cutting weapons and they have also stated that they wielded their weapons when the accused attached the complainants  party and that this was done in selfdefence
In view of the injuries on the person of the deceased and the prosecution witnesses name ly Manohar Sarabjit Mewa Lal Satrohan and Ram Khelawan there can be No doubt that there was a mutual fight
Thus in the instant case the prosecution has given sufficient explanation for the injuries sustained by the accused per sons and the prosecution case cannot be thrown out on this ground
Lastly it was submitted that so far as Ram Sajiwan was concerned the evidence given by the eye witnesses regarding the manner of the assault is inconsistent with the medical evidence
In this connection reliance was placed by counsel for the appellants on the evidence of the Doctor which is to the effect that the injury on the deceased Mufti was undoubtedly caused by a Biroo but it could have been caused only if the Biroo after being struck in the abdomen was rotated
Much capital has been made out of this admission made by the Doctorbut on a close scrutiny we find that this circumstance is not sufficient 238 to put the prosecution out of court
There is clear and consistent evidence of the eye witnesses that the deceased had been assaulted in the abdomen and this fact has been accepted by the two courts concurrently that the deceased Murli was assaulted by Ram Sajiwan with a Biroo
The medi cal evidence clearly shows that the deceased had an injury in the abdomen which could be caused by a Biroo
The exact manner in which the Biroo was pierced in the abdomen of the deceased could not have been observed by the witnesses particularly in view of the mutual fight
Since the injury could be caused if the Biroo was rotated after being pierced it must be presumed in the circumstances that the assailant must have rotated the Biroo after having pierced it in the abdomen of the deceased otherwise the injuries could not have been caused to the deceased
In these cir cumstances therefore we are not able to agree with counsel for the appellants that the assault on the deceased by Ram Sajiwan is in any way inconsistent with the medical evi dence
For these reasons therefore we find ourselves in agreement with the High Court that the prosecution has proved its case against this accused beyond reasonable doubt
The injuries caused by the other appellants on the person of Manohar Sarabjit Mewa Lal Satrohan and Ram Khelawan have been proved by the eye witness whose evidence has been accepted by the High Court as also the Sessions Judge
We see no reason to interfere with the assessment of the evidence by the two Courts
The only point that remains for consideration is as to the exact offence committed by the appellants
In the first place once it is held that the appellants had no right of private defence of person of property appellant Ram Sajiwan cannot escape conviction under section 302 IPC simpliciter because the injury caused by him to the deceased was suffi cient to cause the death of the deceased
The appellant Ram Sajiwan was rightly convicted under section 302 IPC and as the minimum sentence is life imprisonment we cannot do anything about the sentence either
We would like to observe howev er that the facts of the case do raise some amount of sympathy for the accused Ram Sajiwan who was really trying to assert his lawful right against the complainant who was a trespasser
The appellant was fighting for a just and righteous cause though not in a strictly lawful manner
If the appellant had succeeded he would have been able to secure the right over the Chak Road which was left by the Revenue authorities for the benefit of the villagers
These considerations therefore may weigh with the Government for considering the question of remitting a portion of the sentence imposed on the appellant Ram Sajiwan and the learned counsel appearing for the State has assured us that these considerations would be conveyed to the Government
So far as the other appellants are concerned as the object of the appellants was merely to assert a supposed or bona fide claim of right it cannot be said that they had any common intention to cause grievous hurt
In these circumstances therefore the charge under sections 32634 IPC must necessarily fall
The conviction under section 447 IPC as also that under sections 32434 and 32334 IPC cannot be interfered with in view of the evidence of assault made by the appellants on the 239 witnesses Ram Khelawan Manohar Sarabjit Mewa Lal Satro han with their respective weapons
Having regard to the fact that the appellants made a concerted attack either with a Biroo or lathis respectively on the aforesaid prosecution witnesses they had undoubtedly a common intention to cause simple hurt to these witnesses
For these reasons therefore we would affirm the con victions and sentences passed on the appellant Ram Sajiwan but allow the appeal of the other appellants viz Ram Rattan and Ram Samujh to this extent that their convictions and sentences under sections 32634 IPC are set aside but their convictions and sentences under sections 32434 32334 and 447 IPC will stand
If the appellants have already served out their sentences they may be released
M R Appeal dismissed


Summary:
The complainant Ram Khelawan had illegally encroached upon a portion of a public road and grown a paddy crop on it
A complaint against him was pending before the Panchay at
He was in peaceful possession of the land to the knowl edge of the appellants who nevertheless went armed and tried to exercise their right over the public road by passing through the field with their cattle and thereby damaging the crop
The complainants protested and a fight ensued as a result of which one of the complainants  party died and injuries were received by both sides
The appellants plead ed the right of private defence of property and person which they had exceeded but were concurrently found guilty by both the Trial Court and the High Court
Dismissing the appeal the Court HELD 1 A true owner has every right to dispossess or throw out a trespasser while he is in the act or process of trespassing but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner
In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies under the law
235 F G 236 A Puran Singh  Ors
vs State of Punjab 1975 Supp
SCR 299 applied
The Court further observed It is a peculiar feature of our criminal law that where a trespasser has succeeded in taking recent wrongful possession of the property vested in the public for common enjoyment the members of the village or the real owner are not entitled in law to throw out the trespasser but have to take recourse to the legal remedies available and if any member of the public tries to secure public property from the possession of the trespasser he is normally visited with the onerous penalty of law
233 A B 2 The complainant Ram Khelawan was in peaceful posses sion of the land to the knowledge of the appellants and he was in law entitled to defend his possession
The appel lants who were the aggressors and had opened the assault could not claim any right of private defence either of person or property
237 A B