IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Criminal Appeal No.442 of 1996. Date of decision: 30.3.2010 State of H.P ..Appellant Versus Rai Singh & ors. ..Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. The Hon’ble Mr.Justice Sanjay Karol, J. Whether approved for reporting ? For the appellant: Shri Vivek Singh Thakur, Addl. Advocate General with Sh.Rajesh Mandhotra, Dy.A.G. For the respondent: None. _____________________________________________________ Deepak Gupta, J, (Oral). This appeal by the State is directed against the judgment dated 6.1.1996 passed by the learned Additional Sessions Judge (I), Kangra at Dharamshala in Sessions case No.11-P/1994 whereby he acquitted the accused of having committed offences punishable under Sections 302, 323, 324 and 34 of the Indian Penal Code. 2 The brief facts of the case are that the complainant party consisting of deceased Ravi Pal, his wife Asha Rani, Jagannath, Saneh Lata and Shubhkaran and the accused persons Rai Singh, Kulwant Singh and Sita Devi, mother of both the accused, owned joint agricultural land in Tika Kothi, Mouza Khaira falling within the jurisdiction of Police Station, Palampur. Partition proceedings took place and an order of partition was passed on 23.7.1993 whereby certain lands were allotted to the complainant party and some lands were allotted to the accused persons. According to the evidence on record and as admitted by Jagan Nath, PW/5, pursuant to the order of partition, the accused party was put in possession of the land falling to their share, in terms of the stay order dated 28.10.1993. They started ploughing the said land and sowed wheat in the field which fell to their share. This is the clear statement of one of the complainants himself. The complainant party filed an appeal Ext.PW-14/E against the order of the Assistant Collector !st Grade, Palampur in the Court of the Collector, Palampur on 11.11.1993 and the matter was 3 ordered to be listed for consideration on 16.11.1993. Alongwith this appeal, stay application Ext.PW14/D was also filed and on this application, stay order was passed on 16.11.1993. It is not disputed that on 26.11.1993, a day before the alleged day of occurrence, the complainant party had gone with a tractor to till the fields which had fallen to the share of the accused but were prevented by the accused from doing so. Now, we come to the contentious and disputed facts. According to the prosecution, on 27.11.1993, PW/3 Asha Rani alongwith her husband, deceased Ravi Pal, PW/4 Saneh Lata, PW/5 Jagan Nath and Shubhkaran (not examined) had gone to the fields at village Upper Khaira for sowing wheat and started ploughing the field with the help of an ox. The accused persons were doing similar work in their own fields. According to the prosecution, the accused persons came to the fields which belonged to PW/3 and started beating them. The two accused Kulwant Singh and Rai Singh were having ‘Bhutan” (a wooden hammer used for breaking the earth) in their hands. The accused Rai Singh 4 gave a blow of the ‘Bhutan’ from behind on the head of the deceased Ravi Pal who fell down on the ground. Saneh Lata and Asha Rani went to rescue Ravi Pal but the accused Kulwant gave beatings to Saneh Lata who also sustained injuries on her head and became unconscious. The accused persons also inflicted injuries on the hand of Asha Rani and the accused Rai Singh gave beatings to Jagan Nath. Thereafter, PW/5 Jagan Nath took deceased Ravi Pal and Saneh Lata, PW/4 to the road side. All the injured persons were taken to the Sub Divisional Hospital, Palampur. On the complaint of Asha Rani, an entry was made in the daily dairy Ext.PW7/A. Ravi Pal was referred to PGI, Chandigarh by the doctors of the Sub Divisional Hospital, Palampur but expired before he could reach the PGI. The dead body of Ravi Pal was brought back to Palampur and thereafter, on the report of Asha Rani Ext.PW18/A, an FIR Ext.PW18/C was recorded. The injured were got medically examined and the MLCs Exts.PW1/A to PW1/E were issued. Thereafter, the investigation was carried out. 5 It is not necessary to give all the detailed facts since the accused do not dispute the factum of a fight having taken place between them and also do not dispute that Rai Singh gave a blow of ‘Bhutan’ to the deceased. Their case is that they were exercising their right of private defence. The learned Trial Court, after trial, accepted the version of the respondents-accused and came to the conclusion that the accused were entitled to be acquitted since they were acting in their right of private defence while giving blows to the deceased and other members of the complainant party. No independent witness has supported the prosecution case. Only one independent witness PW/6 Labha Singh has been examined. His statement is that he saw the occurrence but he does not know how the fight started. In fact, he could not even identify any of the accused persons. According to him, he witnessed the occurrence from a distance of 200 yards and his eye sight was weak. He could not clearly see what had happened. He could not even say how many males and how many females were present at the spot when the fight took 6 place. He was also unaware of the fact whether the possession of the land falling to the share of the accused had been delivered to them. The prosecution examined Asha Rani, Saneh Lata and Jagan Nath. Their version is that the accused persons were the aggressors and attacked them. However, all these witnesses have not disputed the fact and in fact, Jagan Nath has categorically admitted the fact that the accused persons had already been put in possession of the land falling to their share, prior to the occurrence. As noted above, the accused persons had been put in possession of their share of the land on 28.10.1993. The stay order was obtained by the complainant party on 16.11.1993. Thereafter, the complainant party tried to reclaim the possession of the land. It appears that some compromise Ext.PW20/B took place between the parties on 21.11.1993. Despite this compromise, the complainant party again tried to take possession of the land. All the three prosecution witnesses admitted that on 26.11.1993 they had gone with a tractor and had tried to till the fields which were the bone of 7 contention between the parties but the accused persons objected to the same. On the next day, they again went to the spot. From the material on record, it is more than apparent that the accused were already ploughing the field which was the disputed area. They had been put in possession of the said field pursuant to a partition order and through the agency of a judicial authority. The stay order was passed after the partition order which was challenged in the appeal and had already been executed. By means of this stay order, the parties could not be reverted to the position of status quo ante. Once the complainant party knew that the accused were in possession of the land and they had compromised the matter on 20.11.1993 and had been repelled by the accused on 26.11.1993, they had no business of trying to take the law in their hands on the next day. If they had any complaint, they should have approached the Court of the Collector. The learned Court below has held and rightly so that it was the complainant party who appears to have tried to re-take the possession of the land in the belief that 8 after the passing of the stay order, they were entitled to the possession of the disputed land. Even as per the averments made by the prosecution, it is not as if the accused persons had come armed for a fight. The ‘Bhutans’ used as weapons in this case are instruments of agriculture which are required at the time of ploughing. When a field is ploughed, there are large chunks of earth which are broken by this wooden hammer. It appears that the complainant tried to take the possession of the fields and this attempt was resisted by the accused. During this resistance, a fight took place and in this free fight, a blow of the ‘Bhutan’ was given by the accused to the deceased Ravi Pal. The fact that there was a free fight between the parties is apparent from the testimony of DW/2 Dr.Ms.Uttra Kashyap who has examined Rai Singh, Kulwant Singh, accused and found four injuries on the person of Rai Singh and three injuries on the person of Kulwant Singh. She also examined Sita Devi and found one bruise on her person. Sita Devi was also complaining of pain on various parts of the body. These injuries have not been explained by the prosecution. Saneh Lata and 9 Jagan Nath, PW/4 and PW/5, gave no reason for these injuries. PW/3 admitted the fact that one injury was found on the person of Rai Singh but could not give any reason as to how this person had received this injury. The prosecution has failed to give any plausible explanation for the injuries on the person of the accused. When a person exercises his or her right to private defence, he in the heat of moment cannot judge his reaction in golden scales. True it is that right of private defence should not be exceeded but each case has to be decided on its own merits. In the fight which ensues, a person cannot take a long drawn conscious decision as to what is exact right of private defence available to him and how far he can go and what is the limit. This has to be judged from the evidence on record. In our considered opinion, it was the complainant party who may have trespassed on the land which was being occupied by the accused under the orders of the Collector. The complainants were not happy with the court order and have said so in their testimony. Their action was resisted by the accused persons and in the 10 fight that ensued, one of the accused persons picked up the instrument ‘Bhutan’ which he was having and gave a blow of it on the deceased. It cannot be said that this person exceeded his right of private defence. There is only one blow which has caused the death and the learned Trial Court was right in holding that the accused was justified in giving this blow in his private defence. In view of the above discussion, we find no merit in the appeal which is accordingly rejected. Bail bonds, if any, furnished by the accused are ordered to be discharged. ( Deepak Gupta ) Judge 30th March, 2010 (Sanjay Karol) (m) Judge