1 Criminal Appeal No.341/1998 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.341 OF 1998 1. Uttam Laxuman Ghodake, Age 35 years, 2. Raghunath Laxuman Ghodake, Age 37 years, Both R/o Gulhalli, Tq. Tuljapur, District Osmanabad. ... APPELLANTS VERSUS The State of Maharashtra through the complainant Shrimant Khanda Ghodake, R/o Gulhalli, Tq. Tuljapur, by Police Station, Naldurg, Tq. Tuljapur, District Osmanabad. ... RESPONDENT ..... Mrs. S.G. Chincholkar, Advocate with Mr. Vinesh Solshe, Advocate for the appellants Mr. V.H. Dighe, A.P.P. for the respondent ..... CORAM : K.U. CHANDIWAL, J. DATE : 14th January, 2011. ORAL JUDGMENT : 1. The appellants faced prosecution for an offence under Sections 147, 148, 149, 307 of the Indian Penal Code, vide Crime No.70/1995 of Naldurg Police Station, for an incident dated 13.4.1995. The learned Sessions Judge, in Sessions Case No. 2 Criminal Appeal No.341/1998 16/1996, found, no offence referred above could have been committed by the accused. However, the accused Nos.1 and 2 (appellants) were convicted for the offence punishable under Section 324 read with Section 34 of the Indian Penal Code and directed them to undergo R.I. for six months and to pay fine of Rs.500/- each, in default to suffer S.I. for one month. Set off was also provided in terms of Section 428 of the Criminal Procedure Code. The appellants question legality of the said conviction. 2. The principal contention from the learned counsel is, it was in prosecution of right of self defence vested in the appellants, to protect their agricultural properties for which there was a injunction flowing in favour of the appellants in Second Appeal No. 477/1993, by virtue of orders dated 25.7.1994 passed by the High Court. The agricultural activities undertaken by the appellants were obstructed to interfered with, with oblique motive by the complainant and other members and hence, the unfortunate event has flicked. 3. Medical Officer Dr. J.B. Wadne (P.W.2) informs that the nature of injuries was simple, could not be attributable to user of axe, few of the injuries could be occasioned due to fall. 4. The events dated 13.4.1995 are accounted by Nagnath, Tukaram and Anjanabai. Perusal of injury certificates produced by P.W.2 (Exhibits 36, 37 and 38), endorse to the nature of injuries 3 Criminal Appeal No.341/1998 suffered by the victim. The narration of P.W.5 Anjanabai, P.W.6 Nagnath, P.W.7 Tukaram taken in condensed form, illustrate that it was appellant Nos.1 and 2 who were armed with axe, assaulted brutally, resulting in them suffering bleeding injuries. The recovery of axe, user thereof could not be established as P.W.9 and P.W.10 did not co-ordinate the prosecution being declared as hostile. Even medical evidence refutes. 5. Principle on private defence is well illustrated and explained by Apex Court, as could be seen in Puran Singh Vs. State of Punjab (AIR 1975 SC 1674), State of Bihar Vs. Mathu Pandey (AIR 1970 SC 27), Pohap Singh Vs. State of Haryana and others (AIR 1998 SC 1554) and Tanaji Govind Misal Vs. State of Maharashtra etc. etc. (AIR 1998 SC 174). 6. The narration of accounts from the witnesses and statements of accused under Section 313 of the Criminal Procedure Code taken together, would illustrate that on the fateful day, it was a unpremeditated free fight between the two groups. The appellants herein desired to protect their possession as they were equipped with an injunction clamped by this Court in the Second Appeal referred above. The agricultural activities of tilling/ harrowing was prevented by the injured and consequently, the affairs have taken place. 4 Criminal Appeal No.341/1998 7. The learned counsel for the accused/ appellants submits, in the matter of right of private defence and exercise thereof, no contingency of intending to commit a criminal act would be projected as the principle object of such person (appellants herein) could be to protect the property. She informs, and rightly, there cannot be a conviction with the aid of Section 34 of the Indian Penal Code. The judgment in the matter of Swubramani and others Vs. State of Tamil Nadu (AIR 2002 SC 2980) clarifies this position. The evidence and its evaluation would not lead to infer that in order to settle scores in the on-going litigations of 30 to 40 years, the appellants desired to eliminate the complainant or to injured. The force was applied by the injured and in the retaliation, the appellants were required to protect their possession. It was not a voluntary act causing hurt to the witnesses but it was under a force of the situation which made the accused/ appellants to user of force. 8. In the set of situation in which the appellants were put, the reasonable force that was expected was indeed applied. Anjanabai was also possessing a stick at the material time. The accused were asking Nagnath and Tukaram to leave the field. On the other hand, the complainant and the injured claimed contrary to record and Court order, that they were insisting the appellants to leave the field. The narration of the injured would not be in tune with 5 Criminal Appeal No.341/1998 the record as they were facing a injunction not to interfere in the possession of the appellant by virtue of the Second Appeal. The events lasted for a hour, witnessed by hundred persons or so. It is well settled that the person in possession is entitled to use a force as a defence as against criminal trespass in the field and in such exercise, they were entitled under the law to cause hurt, short of death. Since the appellants sought to maintain and retain their possession, it could not be said that their user of force on the date of incident was attracting penal provisions. It is curious, on the fateful day, the appellants had brought two harrows to the land for cultivation, which was objected by the injured and other members. There is no evidence to illustrate that the appellants possessed an instrument for stabbing or cutting or use a weapon of offence, whereby there could be a fatal injury to human body. 9. In the result, the conviction recorded by the learned Judge, in the set of facts, warrants interference. Consequently, it is set aside. The accused/ appellants are acquitted of the charge. P.R. bonds discharged. Fine, if paid, be refunded to them. K.U. CHANDIWAL JUDGE