1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 612 of 2001. Decided on: September 4, 2008. ____________________________________________________________ State of H.P. ……..Appellant. Versus Devi Singh others. …..Respondents. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the appellant : Mr. J.S. Guleria, Law Officer. For the respondents : Mr. Romesh Verma, Advocate. ____________________________________________________________ SURINDER SINGH,J (oral): The State has challenged the acquittal of the respondents, passed in Criminal case No.86/2 of 1998, whereby the learned trial court has acquitted the respondents, for the offences punishable under Sections 325, 323 read with Section 34 of the Indian Penal Code. I have heard the learned counsel for the parties and have carefully examined the evidence on record. In nut-shell, the case of the prosecution has been that on 27.1.1998, complainant Nirmala Devi (PW1) was removing the grass around 8.30 a.m., which was allegedly stacked by respondent Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 No.1. over the land in his possession, regarding which civil dispute was pending and a Stay was issued against the complainant party. When she could only remove 2/3 bundles of grass, the respondents allegedly came to the spot and started giving beatings to the complainant. With the result, she sustained injuries on her arm and back side of the body. The matter was reported to the police and FIR was lodged. The complainant was medically examined. Her injury on the chest was X-rayed. The Doctor opined that there was fracture of 9th and 10th ribs of the right side chest and issued MLC Ex.P2. In the opinion of the Doctor, the injury so sustained was grievous in nature. The police proceeded to the spot, prepared site plan and also took photographs of the spot. The statements of the witnesses were also recorded and the challan after its completion was presented in the court for trial of the respondents under the aforesaid sections. The respondents pleaded not guilty to the charges and claimed trial. To prove its case, the prosecution examined its witnesses and the respondents were also examined under Section 313 Cr.P.C. Their case was denial simplicitor and no defence was led. 3 At the end of the trial, the respondents were acquitted, on the ground that the right of private defence was available to the respondents as the complainant was removing the grass stacked by the respondent from the land, which was in their possession, thus her act fell within the mischief of theft and criminal trespass and the right of private defence was available to the respondents. The State in its appeal, contended that the approach of the learned trial court was incorrect and the conclusion of right of private defence was totally misplaced, therefore, the acquittal of the respondents for the offence aforesaid was wrong and unjust. Shri J.S. Guleria, learned Law Officer for the State has vehemently argued that the respondents did not take specific defence of right of private defence nor they alleged in their statement recorded under Section 313 Cr.P.C. The learned trial court assumed the fact of private defence without raising the specific defence which could not have been looked into, therefore, there are grounds to convert the acquittal into conviction. Shri Romesh Verma, learned counsel for the respondents while supporting the judgment of 4 acquittal forcefully argued that even if the specific defence of right of the private defence is not taken, but otherwise if it is made out from the evidence on record, the court can rely upon it and there is no illegality therein. I have considered the rival contentions of the parties and reappraised the evidence on record. Legally, the right of private defence need not be specifically pleaded. A person taking the plea of right of private defence is also not required to call evidence on his side, but he can establish that plea by reference to the circumstances transpiring from the prosecution evidence itself. To find out whether right of private defence is available, the entire prosecution evidence needs to be examined with care and in its proper settings, where the accused was in possession of the disputed piece of land, the complainant committed trespass and accused was being dispossessed. The accused has a right of private defence against the trespasser for maintaining his possession. In the instant case, the complainant herself states that the grass on the land was stacked by the accused-respondent Devi Singh over the piece of land which was under litigation, the 5 stay was issued against the complainant party. Removing of the grass without the consent of the respondent itself constitutes the offence of theft and also a criminal trespass. Thus, the case of the respondents falls under Section 97 of the Penal Code and Section 96 thereof declare that the act done in exercise of private defence is not an offence and it falls within the prescribed limits of Section 99 of the Penal Code as the complainant is alleged to have been beaten by dandas and also given the fist blows, while protecting the property by the respondents. As such, the conclusions arrived at by the learned trial court cannot be held to be perverse. Thus, the impugned order requires no interference, hence the appeal is dismissed. The respondents are discharged of their bail bonds entered upon by them during the proceedings of the case. Send down the records. (Surinder Singh), Judge. September 4, 2008. (Pds)