IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.A.169 of 2001. Judgment reserved on: 9.9.2008 Dated of Decision: 03.10.2008. Rajinder Kumar ….. Appellant. Versus State of Himachal Pradesh. …. Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? Yes. For the Appellant : Mr. M.S. Chandel, Advocate with Mr. Rakesh Jaswal, Advocate. For the Respondent : Mr. J.S. Guleria, Law Officer. SURINDER SINGH, J. The appellant has challenged his conviction under Section 307 of the Indian Pena Code, in Sessions trial No.05 of 1998, decided on 22.3.2001, by the learned Sessions Judge, whereby he has been sentenced to undergo the rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/-, in default of payment of fine to further undergo simple imprisonment for a period of six months. PROSECUTION CASE. The background facts as projected by the prosecution in nut shell are as follows: An incident took place on 11.7.1996 at about 7 a.m. when PW1 Inder Dass injured was on his way to collect the fuel wood from the Whether reporters of the Local Papers are allowed to see the judgment? Yes. - 2 - nearby forest from his house in village Karrali. It is alleged that the passage to the forest passes through the orchard of the appellant when Inder Dass was going through the said passage, the appellant picked up an altercation with him. He snatched his axe and went to his house, which was located in his orchard itself. Inder Dass followed him to take his axe back, but the appellant took his licenced SBBL loaded gun (Ex.P1) and aimed a shot from a distance of 10 feet on Inder Dass, on sustaining injuries on his legs, he fell down. DW1 Seema Devi, PW2 Surjo Devi and her husband Jhanku Ram, the parents of the victim witnessed the said incident. They went to their son, rescued him and took him to their house. Smt. Surjo Devi went to the Pradhan to inform about the incident, but he was not available. Thereafter she went to Shri K.N. Sharma, Up-Pradhan of their Panchayat. He advised her to report the matter to the police immediately. The father of the victim Shri Jhanku Ram lodged the FIR Ex.PW7/A at about 9.10 p.m. in Police station Kumarsain. Police visited the spot, prepared the site plan Ex.PW7/B and took into possession the Gun Ex.P1 alongwith empty cartridge Ex.P2 from Smt. Sundru Devi mother of the appellant, on 12.7.96 vide recovery memo Ex.PW5/A. The police took into possession the pallets Ex.P4 from the site where Shri Inder Dass had sustained the injuries. The trouser Ex.P3 of the victim was also taken into possession. Inder Dass was medically examined by PW3 Dr. Vinod Mehta. Finding the serious injuries on the victim he referred him to IGMC Shimla where he was operated and treated by PW14 Dr.S.R Thakur. He removed pellets from his injured leg. Inder Dass remained hospitalized and he was discharged from the hospital on 9th August, - 3 - 1996. On the conclusion of the investigation, a case under section 307 of the Indian Penal Code and Section 27 of the Arms Act, 1959 stood established. The appellant was arrested on 27.7.1996, but later released on bail on 14.8.1996. The challan was prepared and presented in the court for trial of the appellant. FINDINGS OF THE LD.TRIAL COURT. Finding a prima-facie case under the aforesaid sections the appellant was charge-sheeted. He pleaded not guilty and claimed trial. To prove its case, the prosecution examined the witnesses and the respondent was also examined under Section 313 of Cr.P.C. He denied having committing the offences aforesaid. The defence raised was that PW1 Inder Dass had threatened to cut and fell his apple trees with the axe and the appellant had pleaded not to do so, but his request turned deaf-ears. Thus, he was compelled to use his fire-arm to scare him away and the pellets might have hit his left leg. The appellant also led the defence evidence and examined DW1 Smt. Seema Devi wife of Hira Nand Patwari. After examining the witnesses on record, the learned trial court was not convinced by the defence taken by the appellant, consequently held the appellant guilty for the offence under Section 307 of the Indian Penal Code and sentenced him as aforesaid, however, he was acquitted of the offence under the Arms Act. CONTENTION IN THE APPEAL. The appellant felt dissatisfied by the impugned judgment of conviction and sentence, as such assailed it in the instant appeal, inter-alia on the grounds that the maker of the FIR Shri Jhanku Ram was not examined and no reliance can be placed on the prosecution witnesses because of the material contradictions appearing in their - 4 - statements. The statement of Inder Dass is not free from doubt, therefore, implicit reliance cannot be placed on his testimony and further that the inference and conclusions drawn from the facts and evidence are not legal and valid. It is argued by Mr. M.S. Chandel, Advocate duly assisted by Mr. Rakesh Jaswal, Advocate that the learned trial court did not properly appreciate the plea of self defence raised by the appellant and according to him it has come in evidence of the prosecution that PW1 Inder Dass had tried to cut some of the apple trees from the orchard of the appellant, when he was resisted by the appellant, a scuffle also took place and despite that Inder Dass was went upon to cause damage to the apple trees with his axe and it was only thereafter when the appellant did not desist from his illegal activities, in order to scare him away, the appellant fired at, from his licenced gun on the lower portion of his body without any intention to kill him. Thus, the appellant acted within his right provided under the law and this plea stands probablised, but the learned trial Court did not appreciate this fact in any manner, therefore, the impugned judgment of conviction and sentence deserves to be set-aside. Contra Sh.J.S. Guleria, learned Law Officer has forcefully argued that Sh.Inder Dass did not enter into the orchard of the appellant but he was going to the jungle nearby through the passage in the orchard of the appellant and the appellant without any rhyme and reason opened the fire on the appellant with intention to kill him but the pellets hit on the lower portion of the body causing the grievous injury. The exception as pleaded by the appellant is not made out from the record. Further according to him the attempt to cause murder or death is not available to a person committing a - 5 - criminal tress pass in respect of an open/agricultural land; therefore, he was rightly convicted and sentenced by the learned trial court. FINDINGS OF THIS COURT. I have given my thoughtful consideration to the rival contentions of the parties and have carefully scanned and re-appraised the evidence on record. The brief account of the evidence of the parties led before the learned trial court is as under: Regarding the incident PW1 Inder Dass deposed that on 11.7.966 at about 7 a.m. he was carrying an axe for extraction of the fuel wood and left to the forest. When he was passing through the path in the orchard of the appellant, he dropped his axe on one side with a view to pass urine. The appellant was working in his orchard abutting the said path. The appellant picked up his axe when he (PW1) requested to return his axe, the appellant proceeded towards his house and he was asked to follow him in case he wanted back his axe. The appellant asked his younger brother to fetch his licenced gun and the appellant fired a shot from his gun. The pellets hit his ankle joint and fell down. Smt. Seema Devi (DW1) wife of Patwari, residing in the house of the appellant is alleged to have seen the alleged occurrence from her premises as it was clearly visible from there. He also stated that his parents also witnessed the incident from their house. They came to rescue him and took him to their residence. He further stated that his father was allotted nautor land near the orchard of the appellant, which was encroached upon by the appellant. In his cross-examination, he stated that the appellant had filed a civil suit relating to the encroachment of said Nautor land, which was decided in favour of his parents, but they did not take the - 6 - possession of the Nautor land through the process of the court. He has admitted that the appellant has his orchard near his house. According to him, the age of the orchard was 15 to 20 years on the day of incident and the apple plants are thickly planted in the orchard but he denied that the place of incident was not visible from his house. He denied the case of the appellant that he had tried to cut one of the apple plant, which was also shown to the police. He further denied that the appellant had fired a shot with a view to terrorize him to prevent him from cutting the apple plant of the appellant. He also denied that appellant had no intention to cause his murder. He stated that the appellant had aimed a shot on his chest, but he had jumped, thus the pellets hit his leg near the ankle joint and this fact was told by him to the police. When the witness was confronted with his statement, recorded under Section 161 Cr.P.C., this fact did not find mentioned therein. Thus it was an improved version during the trial of the case. PW2 Smt. Surjo Devi, the mother of the PW1 aforesaid stated that Inder Dass was carrying an axe and was going to fetch the fuel wood from the nearby forest. The appellant took away his axe when he requested to return it, the appellant took it alongwith him to his house. Her son followed the appellant, but the appellant fired a gun shot. She alongwith her husband rushed to the spot to save him and took the victim to their house and informed to the Up–Pradhan regarding the occurrence. He also visited the site and advised to lodge the report to the police. Further according to him the wife of the Patwari (DW1) residing in the tenanted premises of the appellant had also witnessed the incident. - 7 - In cross-examination, she has admitted the existence of a dispute regarding the possession of the land falling between their house and the appellant. According to her they (the complainant party) did not take the possession of the land through the process of the court. She stated that the appellant fired a gun shot after the complainant party won the civil case. She has admitted that the height of the plants in the orchard where the incident took place was about 25 feet. According to her she had planted these apple trees in the land of the appellant. She has denied that on the day of occurrence her son Inder Dass had tried to cut the apple plants with his axe. She further denied that the village path did not abut the orchard of the appellant. She stated that the appellant had fired a shot at his son in his house and then again stated that he fired at him outside the house. PW3 is Dr. Vinod Mehta, Medical Officer PHC Kumarsain. On 12.7.1996, at about 11.45 p.m. in response to the request of the police, he medically examined Inder Dass. On examination he found the following injuries:- 1. Multiple oval shaped wounds, irregular in size present on the left knee joint. Crust was present over the wound. Movement at the joint were impaired and painful, soiling was present. The patient was advised X-ray. Blackening and other features could not be made out as the wound manipulated earlier. Dressing was done at PHC Kotighat. 2. Oval shaped wound 1” x 1/2” on medial side of right leg 8” above the medial mellious. Dried scab was present over the wound. Movements of the joint was normal. Wound had been dressed with manipulation by earlier dressing. The injured was referred to the IGMC for X-ray and expert surgical management and according to the doctor as per letter - 8 - No.MED. Artho 1996/332 dated 12.8.96 submitted by PW11 Dr. Bhanu Awasthi, Registrar, IGMC, the patient had compound communited fracture on patella left side with fracture medial conidial tibia left which was also compound and communited alongwith multiple pallets above the left knee joint. Injury No.1 was opined to be grievous and injury No.2 was simple. Probable duration of both the injuries was within 36 to 48 hours prior to the medical examination. The said injuries were by the fire arm. Doctor issued Medical Legal Report Ex.PW3/A and proved the treatment summary Ex.PW3/C, which was also put to Dr. Bhanu Awasthi (PW11). PW13 Dr. Jogeshwar Ram has stated that the injuries stood already dressed earlier and he had opened the dressing for the purpose of examination. He has denied that both these injuries could be caused by a single shot. PW13 Dr. Jogeshwar Ram has proved the prescription chit Ex.PW13/A. He had also dressed his wounds. PW14 is Dr. S.R. Thakur. He operated upon the wound of PW1 in the IGMC hospital, where the victim remained hospitalized w.e.f. 13.7.97 to 9.8.96. PW4 Dr. S.K. Jain, Assistant Director, Ballistics, CFL Chandigarh had examined the fired arm Ex.P1 and on examination he came to the conclusion that the crime cartridge C/1 was fired through the gun Ex.P1 because of its individual characteristic marks. He proved his opinion Ex.Pw4/A. In cross-examination, he stated that he did not give his opinion with respect to pallets as not asked for. PW5 Shri K.N. Sharma, Up-Pradhan of Panchayat Kotighat has stated that he joined the investigation of this case on 12.7.96. Smt. Sundru Devi mother of the appellant had produced the gun Ex.P1 alongwith the cartridge Ex.P2 and licence of the gun to the - 9 - police, which were taken into possession by police vide memo Ex.PW5/A. Trousers of Inder Dass was also taken into possession vide memo Ex.PW1/A. In cross-examination, he has admitted that the; police took into possession the axe from the near the site of the crime which was lying there in the orchard and further admitted that Sundru Devi mother of the appellant had pointed to the police the cut marks applied by the victim to the apple plants. Even he had also seen it on the spot. On this statement, the learned Prosecutor sought the re-examination of this witness as having introduced a new story. The permission was granted and then he deposed that he made the statement with respect to the cut marks for the first time in the court, as no one had asked about it earlier. He further stated that on 11.7.96, he had visited the house of PW1 Inder Dass. He admitted that at the site near the path Jhainku Ram had been granted Nautor 5 bigha 6 biswas, however, he did not know whether its possession was taken by the complainant. In the cross-examination by the accused he admitted that Sundru Devi informed the police in his presence that Inder Dass had applied cut marks to the apple plants and stated that the orchard of the appellant is separate from the Nautor land of Jhainku Ram and also stated that there is common boundary of the orchard in question with that of the Nautor land of Jhanku. He further stated that he did not inform the police with respect to cut marks on the apple trees because Smt. Sundru Devi had already pointed out it to the police. PW7 Inspector Virender Singh is Investigating Officer. In cross- examination, he has stated that he did not take into possession, the revenue record of the orchard in question and he did not show in site - 10 - plan Ex.PW7/B the point from where the appellant had fired the gun shot but according to him it was near to his house. He further stated that the place of alleged occurrence could be peeped, from the house of Jhainku Ram, through the orchard. He deposed that there is a forest on both side of house of Inder Dass and the appellant, however, he did not try to ascertain as to which forest Inder Dass was going. According to him the path shown in Ex.PW7/B ends at the new house of appellant but stated it also goes beyond that. He denied that Smt. Sundru Devi in the presence of K.N. Sharma and Bishan Dass had shown the cut marks on the apple plants applied by Inder Dass PW1. He also denied that he took the axe from the site of crime. Neither Jhainku Ram the maker of the FIR was examined during the trial nor there is any memo of recovery of axe. The appellant was called upon to enter into his defence. He examined DW1 Smt. Seema wife of Hira Nand Patwari, who was a prosecution witness, but given up by the learned Public Prosecutor vide his statement dated 17.4.2000. She deposed that on the day of alleged incident Inder Dass had tried to cut the apple plant. The appellant asked him not to cut the trees, but he struck one /two blows with axe on the apple plants of the appellant. Thereafter the appellant and Inder Dass grappled with each other. Inder Dass was having an axe and the appellant took possession of gun and fired a shot with a view to save himself in defence. In cross-examination she has stated that the parents of the injured had also seen the occurrence as they happened to be near to the seen of occurrence. No doubt the appellant did not set up the plea of private defence to the property justifying him to open fire at the appellant in his statement under Section 313 Cr.P.C., but he has laid down the - 11 - necessary foundation in the cross-examination of the prosecution witnesses and tried to establish it by examining the defence witness. Though the burden of establishing the plea right of private defence is upon the accused but that can be discharged by showing preponderance of probabilities in favour of that plea on the basis of material on record. The learned trial court has accepted the prosecution version as to the manner in which the incident took place and held that if PW1 had applied one or two cut on the apple plants of the appellant, that would not cause any right on him to use the fire arm. I have examined the entire evidence. Now on the basis of the undisputed facts as well as facts borne out from the record whether the appellant can be said to have made out the plea of defence of property advanced on its behalf. The first question that arises, as to who was in possession of the orchard in question on the date of alleged occurrence. The case of the prosecution as put forth is that the path led through the orchard of the appellant, it nowhere says that the said orchard belong to complainant party however Surju Devi PW2 has tried to establish that the apple plants were planted by her and Nautor land was allotted to them which was besides the orchard of the appellant but neither the revenue papers, the patta of allotment or any khasra girdwari have been put forth to substantiate the claim. Even she stated that the apple trees between her house and that of the appellant were planted by her. The civil suit filed by the appellant with respect to khasra No.102 for injunction was dismissed whereby he claimed the possession thereof, but it has not come anywhere on record whether this land fell between the house of the complainant and the appellant - 12 - where the alleged incident had taken place. Even according to Surju Devi she did not acquire the possession of the land through the process of the court. Even the prosecution is silent about this. There is no evidence about the lawful delivery of land in question in favour of the complainant thus it is obvious that the orchard in question was in the effective possession of the appellant on the day of the alleged occurrence. The complainant had tried to make out a boundary dispute to which they had also failed to establish. From the proved facts on record it is manifest that PW1 Inder Dass had gone to orchard of the appellant alongwith his axe to assert his possession. PW1 has stated that the appellant told his younger brother to bring the gun, this fact is not substantiated by any other witness. The path as shown in the site plan Ex.PW7/B leads upto the house of appellant. There is no reason why PW1 Inder Dass should have gone to the orchard of appellant. Even according to PW5 K.N. Sharma, the axe was recovered by the police from the site of occurrence, which falsify the story of taking the axe by the appellant alongwith him. Therefore, he is clearly guilty of criminal trespass. Further there were cut marks on 2/3 apple trees as is evident from the prosecution evidence on record, which corroborates and probablise the case of defence. The law relating to the property is set out in section 97 of the Indian Penal Code, which says that every person has a right, subject to restriction contained in Section 99, to defend firstly, his own body and the body of any other person, against any offence effecting human body. Secondly, the property whether moveable or immoveable for himself or for an any other person against any act, which is an offence falling under the definition of theft, robbery, - 13 - mischief or criminal trespass, or which is attempt to commit theft, robbery, mischief or criminal tress pass. Section 99 of the Indian Penal Code lays down that there is no right of private defence in cases in which there is time to have recourse to the protection of public authority. It further lays down that the right of private defence in no case extends to inflicting more harm than it is necessary to inflict for the purpose of defence. The learned Law Officer has urged on behalf of the state that even assuming the appellant was in possession of the orchard, but he has enough time to the protection of public authorities if PW1 had caused the damage to his property, therefore plea of defence of property as alleged is not attracted. In fact the law does not require a person whose property is forcibly tried to be occupied or being damaged to run away, seeking the protection of the authorities. The right of private defence serves a social purpose and that right should be liberally construed as held by the apex Court in Munshi Ram and other v. Delhi Administration [AIR 1968 702] that such a right not only will be restraining influence on bad character but would encourage the right spirit in free citizen. There is nothing more degrading to the human spirit to run away in the face of peril. The appellant is entitled to resist in the facts and circumstances of the case when there is attack on his property. In other words, wherein an individual citizen or his property is faced with danger and immediate aid from the state machinery is not readily available, the individual citizen has a right to protect his property, that being so, it is necessary corollary to the doctrine of private defence that the violence, the citizen defending himself or to his property must not be unduly disproportionate to the injury which is to be averted or which is -