IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No.271 of 2000 Reserved on:August 23, 2007 Decided on: September 13,2007. State of H.P. …Appellant. VERSUS Tarsem Lal & Ors. ….Respondents. Coram The Hon’ble Mr.Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellant: Mr.M.L.Chauhan, Addl.A.G. For the respondents: Mr.Rakesh Jaswal, Advocate. Kuldip Singh, Judge The respondents were accused in Criminal case No.112/2 of 1995 and they were prosecuted under Sections 147, 148, 149, 323, 324, 325 I.P.C. in the Court of learned Sub Divisional Judicial Magistrate, Nalagarh, District Solan and were acquitted on 10.12.1999. The State has filed the appeal against the acquittal of the respondents. 2. The facts, in brief, are that Gohri and Sharwani (PW-6) were having some land in village Goghar Wal. A dispsute of this land was decided in favour of Gohri and Sharwani and against respondents Dev Raj, Hem Raj and Pyara Singh, not a party in the case. The possession of the land was delivered to the complainant Whether the reporters of the local papers maybe allowed to see the judgment? …2… party on 29.4.1995 and 5.5.1995 by Kanungo – Patwari. On 5.7.1995 at about 6.30 P.M. or 7 P.M. the complainant party had thrown chary seeds on this land and were to plough the land with a tractor when Tarsem, Dev Raj, Dharmender, Jaswinder, Kala, Huma and another son of Hem Raj, Rodu, Sita, Pushpa, Seema, Santosh and Jassa came armed with sticks and axe. They started giving beatings with sticks and axe to complainant party. The accused Sudesh was having an axe and he attacked Gurmukh Singh (PW-3) with it. Tarsem caught Gurmukh Singh and Dev Raj hit him with the stick. Arjun Singh (PW-4) was also beaten by accused. Sharwani was beaten by accused Sita and rest of the accused persons gave beatings to other persons. 3. The victims were brought to the hospital. The police was intimated on which PW-10 Uggar Singh went to hospital and recorded the statement Ext.PW-2/A of Baldev Singh and thereupon F.I.R. Ext.PW-9/B was registered. Dr.A.K.Tiwari (PW-1) on the application Ext.PA conducted medical examination of Sharwani and found simple injuries on her person. On another application Ext.PB, he conducted medical examination of Gurmukh Singh and found simple and grievous injuries on his person. On application Ext.PC, Dr.A.K.Tiwari (PW-1) conducted medical examination of Baldev Singh and found simple and grievous injuries on his person and issued Medico Legal Certificate Ext.PW-1/B. On application Ext.PJ, PW-1 gave his opinion Ext.PW-1/C that injuries were on vital part of Baldev Singh and could have resulted in the death. On application Ext.PD medical …3… examination of Arjun Singh was conducted by PW-1 and found simple injuries on the person of Arjun Singh and issued Medico Legal Certificate Ext.PW-1/D. Axe Ext.P-1 and sticks Ext.P-2 to Ext.P-4 were recovered and the Doctor gave the opinion that injuries could be caused by axe Ext.P-1 and sticks Ext.P-2 to Ext.P-4. 4. The investigation was conducted by PW-10 Uggar Singh who went to the spot and prepared site plan Ext.PW-10/A and Ext.PW-10/B. Accused Sudesh Kumar on the basis of his disclosure statement Ext.PW-5/A got recovered axe which was seized vide seizure memo Ext.PW-5/B. The sticks were produced by Bhupinder Singh which were seized vide seizure memo Ext.PW-5/C. The accused were charged under Sections 147, 148, 323, 324, 325 read with Section 149 I.P.C. The prosecution examined 10 witnesses. The statements of accused persons were recorded under Section 313 Cr.P.C. They have stated that they were in possession of land belonging to Sharwani and Gohri for the last 40 years. Tarsem and Sudesh were working in the fields. The complainant party tried to get possession and gave beatings. They had sown chary and maize. Partition application is pending and the land is still joint. In defence Dr.A.K.Tiwari was examined and order sheet of partition case Ext.D-2 to Ext.D-5 were placed on record. The learned Sub Divisional Judicial Magistrate acquitted the accused, hence, the State is in appeal. 5. I have heard the learned Additional Advocate General for the appellant / State and learned counsel for the respondents and gone through the record. …4… 6. The learned Additional Advocate General has submitted that prosecution has proved the case. The complainant party was in possession of the land. The accused persons were aggressors and tried to dispossess the complainant party and gave beatings to them. The complainant party has suffered injuries. The Court below has not properly appreciated the evidence on record and has erred in acquitting the accused. The learned counsel for the respondents has supported the impugned judgment. 7. It has come on record that at least at one point accused party was in possession of the land but according to the prosecution the complainant party was given possession of this land by Kanungo and Patwari in partition proceedings on 29.4.1995 and 5.5.1995. From this stand of the prosecution, one fact is established that accused party was in possession of the land, therefore, it was for the prosecution to prove that the accused was dispossessed from the land and complainant party was put in possession on 29.4.1995 and 5.5.1995. The best evidence was to prove possession of complainant party on the land by proving the warrant of possession delivering possession of the land to the complainant party but prosecution has not proved delivery of possession to complainant party through warrant of possession. The Sub Divisional Judicial Magistrate after appreciation of the evidence has rightly come to the conclusion that prosecution has failed to prove that complainant party was in possession of the land on the date of occurrence. …5… 8. The defence of the accused party which emerges from the evidence is that they defended their possession on the land when complainant party trespassed on the land and attacked the accused party. The accused party had no common object to commit an offence for which they were prosecuted. The right of private defence by the accused party on the land is not part of common object for committing offence. In State of Bihar Vs. Nathu Pandey and Others [AIR 1970 SC 27], the Hon’ble Supreme Court in Paras- 8 and 9, has held as follows:- “In order to attract the provisions of Section 149 the prosecution must establish that there was an unlawful assembly and that the crime was committed in prosecution of the common object of the assembly. Under the fourth clause of Section 141 an assembly of five or more persons is an unlawful assembly if the common object of its members is to enforce any right or supposed right by means of criminal force or show of criminal force to any person. Section 141 must be read with Sections 96 to 106 dealing with the right of private defence. Under Section 96 nothing is an offence which is done in the exercise of right of private defence…. …. …..The object of the respondent’s party was to prevent the commission of theft of the mahua fruits in exercise of their right of private defence of property. This object was not unlawful. Nor is it possible to say that their common object was to kill Ramdhari and Ramswarup. Those who killed them exceeded the right of private defence and may be …6… individually held responsible for the murders. But the murders were not committed in prosecution of the common object of the assembly or were not such as the members of the assembly knew to be likely to be committed in prosecution of the common object. The accused respondents cannot be made constructively responsible for the murders under Section 302 read with Section 149.” 9. There are material contradictions in the prosecution story in the manner the accused partly inflicted injuries on the complainant party. PW 2 Baldev Singh has stated that accused party pounced upon his son Arjun Singh and started beating him and when they tried to rescue him then accused party gave them beatings with Dandas. The accused persons inflicted lathies and axe blows with force. PW 3 Gurmukh Singh has stated that all accused ran after Arjun Singh and gave him beatings with kick and fist blows. Accused Sudesh attacked him with an axe. According to him, there were in all 13 persons, who attacked the complainant party, but ten persons were prosecuted. Arjun Singh was given beatings for 15 minutes. They left Arjun Singh and gave beatings to him. He became unconscious. Then they gave beatings to Baldev. PW 4 Arjun Singh has stated that when he fell down he became unconscious and he does not know who gave beatings. PW 5 Natha Singh was declared hostile. PW 6 Sharwani has stated that when they were sowing land, accused party came there. Sudesh gave an axe blow on the head of her husband Gurmukh Singh and second blow on his leg. They were given beatings by all accused. PW 1 Dr. A.K.Tiwari, who was examined in …7… defence as DW 1 also has proved MLC Ex. D-1 of Tarsem Lal showing injuries on the person of Tarsem Lal. The prosecution has not explained how and in what manner accused Tarsem Lal has suffered injuries on his person. 10. The accused party was defending their possession. Section 104 IPC authorizes causing of harm other than death while exercising right of private defence, in case of offence of theft, mischief or criminal trespass subject to restrictions mentioned in Section 99. In the present case, the accused party was in possession of the land in dispute and they were protecting their possession when the complainant party trespassed on the said land. In Puran Singh and others vs. The State of Punjab [ (1975) 4 SCC 518 ], the Hon’ble Apex Court in para 19, has held as follows:- “…. It is not the law that a person when called upon to face an assault must run away to the police station and not protect himself or when his property has been the subject-matter of trespass and mischief he should allow the aggressor to take possession of the property while he should run to the public authorities. Where there is an element of invasion or aggression on the property by a person who has no right to possession, then there is obviously no room to have recourse to the public authorities and the accused has the undoubted right to resist the attack and use even force if necessary. The right of private defence of property of person, where there is real apprehension that the aggressor might cause death or grievous hurt to the victim, could extend to the causing of death also, and it is not necessary that death or grievous hurt should actually be caused before the right …8… could be exercised. A mere reasonable apprehension is enough to put the right of private defence into operation…..” 11. In Jai Bhagwan and others vs. State of Haryana [1999 (3) SCC 102 ], the Hon’ble Apex Court in paras-5 and 6, has held as follows:- “ Section 104 IPC will apply if the wrongdoer commits or attempts to commit any of the following offences: (1) theft, (2) mischief or trespass not of the description which is covered under Section 103, subject of course to restrictions mentioned in Section 99 IPC; and in such a case, the right of private defence or property would extend only to causing harm other than death to him. From the facts, it is clear that the action of the deceased and his sons coming to the land in possession of the accused group was to irrigate the land which, on the facts of this case, could only amount to criminal trespass within the meaning of Section 441 IPC. The right of the accused- appellants, therefore, extended only to causing of harm other than death.” 12. It has come on record that accused Sudesh, who allegedly caused injuries by means of axe has died and some of the accused had used Dandas for protecting their possession in exercise of their right of private defence. It is settled proposition that right of private defence is not to be weighed in golden scales. In Mohd. Ramzani vs. State of Delhi [AIR 1980 SC 1341 ], the Hon’ble Apex Court in para-19 has held as follows:- …9… “…… It is further well established that a person faced with imminent peril of life and limb of himself or another, is not expected to weigh in `golden scales’ the precise force needed to repel the danger. Even if he at the heat of the moment carries his defence a little further then what would be necessary when calculated with precision and exactitude by a calm and unruffled mind, the law makes due allowance for it……” 13. The prosecution has failed to prove that complainant party was in possession of the land in dispute. The version of the accused that they defended their possession when complainant party trespassed on their land is probable. The learned Sub Divisional Judicial Magistrate has rightly appreciated the material on record and acquitted the accused. No case is made out for interference. 14. The result of the above discussion, the appeal is dismissed. September 13,2007. ( Kuldip Singh ), (soni/hem) Judge.