RAJINDER AND ORS.

STATE OF HARYANA

JULY 12, 1995

[DR. A.S. ANAND AND M.K. MUKHERJEE, JJ.] B

Indian Penal Code :

Ss. 148,302/149, 307/149, 325/149. 324/149, 323/149 and s.300-Exception 2--Accused charged of various offences beside one of them addi Honally C charged under s.6 of Te!Torist and Dis1uptive Activities (Prevention) Act, 1985-Dispute regarding ownership of agricultural land giving rise to incident in which 3 persons complainant party died as a result of injuries caused by accused party and some others got grievous injwies-Accused pleading right of private defence of property and person-Held, complainant party did not D commit offence of 'criminal trespass' for they unauthorisedly entered into land in dispute only to pwuade accused party to withdraw therefrom and not with any intelllion to commit any offence-Accused party had no right of private defence to property entitling them to launch murderous attack-Exception 2 to s.300 not applicable as attack by accused party was premeditated with an intention of doing more ham1 than was necessary for purpose of private E defence.

Ss.96 and 104, 1ight of private defence-Held not available against an act which is not an offence-Right of private defence against "criminal trespass" does not extend to voluntarily causing of death.

S.444-'Criminal trespass'-Held, no offence of 'criminal trespass' can be said to have been committed unless any of illlention refe1Ted to in the section is proved.

Legal Maxims : Maxim 'falsus in uno, falsus in omnibus'-Not ap- G plicable in crimin.al trial.

TI1e eighteen appellants alongwith ten others were, in connection with an incident, charged with various offences under the Penal Code. One

of them was also charged under s.6 of Terrorist and. Disruptive Activities (Prevention) Act, 1985. The cause giving rise to the incident was a dispute H 863

A between the complainant party and the accused party with regard to possession of some agricultural land which according to the prosecution case, belonged to the father-in-law of PW 17. He died leaving behind a will whereby he had bequeathed the land in dispute to his only son and and after latter's death his wife, PW 17, came in possession of the land in

B dispute. Later, she handed over the possession of the said land to PW 19 under an agreement to sell.

As regards the incident, the prosecution case was that on 17.11.1985 at about 10 A.M. when brothers and other family members of PW 19 were working in their land nearby the and in dispute, two of the appellants came C there with two camel ploughs; thereafter, the other accused, armed with weapons, reached there in three tempos and a tractor and started ploughing the land in dispute. When PW 17 alongwith the family members of PW 19 resisted, two of the accused-appellants started two tempos and dashed agaist Dl, D2, D3 and DW 14 as a resnlt of which they fell down; then other D accused started beating them with jailis, lathis, ballams and pharsas which resulted in the death of Dl, D2 and D3 and grievous injuries to others. All the appellants then fled away leaving two tempos two camel ploughs there.

PW 13 rushed to her house and narated the incident to PW 19 and both of them then left for the police station. On the way they met Police Inspector PW 22 who was coming to the village in connection with a case E lodged by one of the accused earlier. He recorded the statement of PW 13 and sent it to police station for registration of the case. On reaching the place of occurrence he sent the bodies of Dl, D2, and D3 for autopsy and completed other formalities. The investigation culminated in trial of the accused before the Designated Court.

F The defence case, as given out by the accused in their statements under s.313 of the Code of Criminal Procedure and DW 15, was that they were cultivating the land in dispute for a long time; when they came to know that PW 19 was planning to disturb their possession, they lodged complaints on 6.11.1985 and 11.11.1985; in the night between 11/12-11-1985, G when PW 19 and his men damaged their crops on the land in dispute, they lodged another cmplaint where upon some of the men. of PW 19 were arrested. As regards the incident of 17 .11.1985, the defence case was that seven of the accused-appellants went to the land in dispute with camel ploughs with a tempo carrying fertilizers and seeds; while they were H ploughing the land the complainant party came there carrying lathies and

RAIINDERv. STATEOFHARYANA 865

jailis; PW 13 trespassed into the land and on her instigation, others A attacked the accused party; the latter exercised their right of private defence of their person and property and in the process seven members of the. complainant party were injured.

The trial court held that the accused were in settled possession of B the land in dispute. As regards the sequence of event leading to the incident, the court did not believe the prosecution version and held that the complainant party trespassed into the land the accused party mounted a full strength assault on them. With regard to right of private defence, the Court held that since the accused were not present in the field when the complainants reached there, there was no immediate danger to their C person and, therefore, no right of private defence of person accrued to them. So far as right of private defence of property was concerned, the trial court held that the action of accused party was neither covered under s. 100 nor under s. 103 !PC, and as such no right of private defence accrued to the accused at all. The trial court convicted the appellants under ss.148, D 302/149, 307/149, 325/149, 324/149 and 323/149 !PC, besides convicting two of the appellants under s.307 IPC, and sentenced them to different terms of imprisonment including imprisonment for life. The other 10 accused were acquitted of all the charges. Aggrieved, the appellants filed the appeal.

E It was contended for the appellants that having disbelieved the prosecution case as to the manner in which the onslaught originated, the trial court was not justified in basing the conviction on a case made by itself; that the trial court having disbelieved the evidence of four eyewitnesses examined by the prosecution as against ten of the accused, ought F not have relief upon the self same evidence to convict the appellants; that the trial court having recorded a finding that the accused party was in settled possession of the land in dispute and the complainant party had trespassed thereon, erred in recording conviction, since in view of s.96 I.P.C. no offence was committed by the accused as they acted in bona fide exercise of their right of private defence of their property and person; that G even believing the prosecution case, the appellants were liable to be convicted under s.304(Part-1) !PC, as the facts of the case were squarely covered by Exception 2 to Section 300 !PC.

Dismissing the appeal of the appellants except one, this Court H

HELD : 1. The trial Court was not justified in making out a case of its own disbelieving and discarding the respective cases made out by the parties. In view of the evidence adduced by the parties regarding the origin of the incident that took plae on the fateful day, the trial court ought to hal'e accepted the prosecution version. Complaints bad been lodged by both sides against each other alleging trespass on land in dispute. Admittedly only a few days back one of the appellants had lodged a complaint against some members of the complainant party including PW 19 for committing tresspass into and damaging crops on the land in dispute and in connection therewith some were arrested. [n the context of these facts, which the trial court also noticed, it was not likely that the complainant party would C venture to forcibly cultivate the land in dispute immediately thereafter and face another prosecution. Judged in that light, their assertion that at the material time the complainant party was cultivating their ancestral land does not seem to be improbable, more so, when the accused did not even suggest, much less prove, that they had no such land near the land in dispute. [876-B-G] D

1.2. Besides, the evidence of PWs 13 to 16 as to the manner in which the trouble started and the assault took place is not only cogent and consistent but also stands corroborated by other materials on record, namely, the admitted presence of the members of the complainant party at E the place of occurrence their having sustained injuries and medical evidence corroborating the same; the autopsy of three deceased; evidence of the investigating officer (PW 22) testifying the presence of two tempos and two camel ploughs belonging to accused party at the place of occurrence and manner in which the FIR was registered; and the FIR containing the sob stratum of the prosecution case as detailed by PW 13 at the trial.

F Pitted against the evidence of the prosecution witnesses is the evidence of DW 15, which, keeping in view the injuries received by the members of the complaint's side and other circumstances, cannot be relied npon. Further, DW 1, the doctor who examined the four accused, opined that the injuries found on their persons could be sustained by fall or in agricultural pursuits G like striking with plough. [876-H, 877-A, H, 878-A-C]

2.1. The right of private defence, be it to defend person or property, is available against an offence. Conversely, there is no right of private defence against any act which is not an offence. [880-D]

H 2.2. From the oral evidence and other material on record, the only

RAJINDER v. STATEOFHARYANA 867

legitimate and reasonable inference that can be drawri is that the accused A party had gone to the land in dispnte with a determination to cnltivate it and for that pnrpose, fully prepared to thwart any attempt made by PW 19 and his men to disturb such cultivation and meet any eventuality. As they about to cultivate the land, the complainant party, which was cultivating their land nearby, went there and entreated the accused party to vacate the said land claiming themselves to be owners and in possession of the land in dispute. Immediately thereupon the accused party launched a murderous attack on the complainant party resulting in death of three, grievous injuries to three and simple injuries to other three. In the course of that attack four members of the accused party received some injuries at the hands of

one of or other of the complainant_ party, as testified by PW 14. [879-E-F) C

23. According to provisions of s.441 IPC, 'criminal tresspass' into or upon a property is said to be made out if, and only if, entry into or unlawful remaining over the property is with the intent to commit an offence or to intimidate, insult or annoy the person in possession of the property. Unless D any of the intentions referred in s.441 is proved, no offence of criminal tresspass can be said to have been committed. Such an intention bas to be gathered from the facts and circumstances of a given case. (880-H, 881-A)

2.4. As held by the trial court, the land in dispute was in settled possession of the accused pariy. However, in view of the principle nnderly- E ing s.441 IPC it cannot be said that the complainant par!Y committed the offence of"criminal tresspass" for they had unauthorisedly entered into the land in dispute, which was in possession of the accused pariy, only to pursuade the latter to withdraw therefrom and not with any intention to commit any offence or to insult, intimidate or annoy them. There is not an F iota of material on record to infer any such intention. Thns the accused par!Y had no right of private defence to proper!Y entitling them to launch the murderous attack. On the contrary, such murderous attack not only gave the complainant pariy the right to strike back in self defence but disentitle the accused to even claim the right of private defence of person.

[881-C) G

2.5. Even otherwise, section 104 IPC expressly provides that right of private defence against "criminal trespass" does not extend to the voluntary causing of death; and Exception 2 to s300 IPC wonld not apply in the instant case as the attack by the accused party was premeditated and with an intention of doing more harm than was necessary for the purpose of H

A private defence, which is evident from the injuries sustained by the deceased, both regarding severity and number as compared to those received by the four accused persons and in that case conviction for minor offences only would have been set aside. [881-E-F]

3. The maxim 'Falsus in uno, Falsus in omnibns' does not apply to criminal trial and it is the duty of the court to disengage the truth from falsehood instead of taking an easy course of rejecting the evidence in its entirety solely on the ground that the same is not acceptable in respect of some of the accused. [881-H, 882-A]

4. The trial court took great pains to consider and discuss the case of the individual accused including the pleas of alibi raised on behalf of one of the appellants and others, and on a threadbare discussion thereof found that the participation of the appellants in the incident stood proved beyond all reasonable doubt, while acquitting others on grounds which were available to them only. Considering the evidence against each of the D appellant, there is no reason to take a different view from the one taken by the trial court so far as appellants are concerned, except appellant JN, since the trial conrt having acquitted those whose names did not finding place in the FIR, ought to have recorded and order of acquittal in his favour also as he stood on the same footing. Appeal of appellant JN is E allowed and he is acquitted of the charges. [882-B-C]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 125 of 1988.

From the Judgment and Order dated 25/30.1.88 of the Designated F Court, Rohtak in Sessions Trial No. 104 of 1986.

R.K. Jain and Ravinder Bana for the Appellants.

D.B. Vohra, K.C. Bajaj and Ms. Indu Malhotra for the Respondent.

G R.L. Kohli and Mrs. Rani Chhabra for the Complainant.

The Judgment of the Court was delivered by

M.K. MUKHERJEE, J. The eighteen appellants herein along with ten others were indicated for an incident that took place on November 17, H 1985 in village Lawa Khurd within the Police Station of Bahadurgarh in

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RAJINDER v. STATE OFHARYANA[MK MUKHERJEE.J.] 869

which three persons were killed and several injured. Against one of them A a charge under Section 6 of the Terrorist and Disrupted Activities (Prevention) Act, 1985 ('Act' for short) read with Sections 25 and 27 of the Arms, Act, 1959 was also framed and therefore they were tried by a Designated Court constituted under Section 9 of the Act On conclusion of the trial, the Court, while recording an order acquittal against ten co-accused in B respect of all the charges levelled against them, convicted the appellants under Sections 148, 302/149 (three counts), 326/149.325/149, 324/149 and 323/149 of the Indian Penal Code (LP.C. for short). Besides, two of the appellants were convicted under Section 307 LP.C. (two counts) and the remaining sixteen were convicted for the same offences with the aid of section 149 LP.C. For the convictions so recorded the appellants were c sentenced to different terms of imprisonment, including life. The above order of conviction and sentence is under challenge in this appeal filed under Section 16 of the Act

The prosecution case as disclosed by the evidence led at the trial is D as under: One Prem Raj was the owner of 19 killas of land in village Lawa Khurd. He died in May, 1982 leaving behind a will whereby he had bequeathed that land to bis only son Shri Krishan. Consequent upon Shri Krishan's death in April, 1983 his wife Sm. Krishna (PW-17) became the owner thereof. Wbile in possession of the land she entered into an agreemen! with Mange Ram (PW 19) on November 4, 1985 for its sale for a E total consideration of Rs. 2,00,000 and, on receipt of a sum of Rs. 50,000 out of the said amount at the time of execution of the deed of agreement, handed over the possession to Mange Ram. On November 12, 1985, the appellant Rajinder Singh, claiming himself to be one of the owners of tlie said land (hereinafter referred to as the 'disputed land'), as an heir of Prem F Raj, and in possession thereof, lodged a complaint with the police alleging that Mange Ram and his men had criminally trespassed therein and destroyed the drops he had grown thereon. On that report Bahadurgarh Police Station registered a case being No. 532 dated 12.11.1985 against Mange Ram and others but it ultimately ended in their discharge as the

. .,, police found, on investigation, the accusation to be false .

The prosecution version of the incident that took place on November 17, 1985 is that at or about 10 AM. When Sm. Krishna (P.W. 13), niece of Mange Ram, her father Ram Singh (deceased), her uncles Rattan Singh

(deceased) and Ohan Singh, her cousin Satbir (deceased), her sister Ms. H

A Kamlesh (P.W. 14), her brother Balbir Singh (P.W. 15) and her sister-inlaw Sm. Rajo (P.W. 16) and Sm. Ramesh were cultivating their ancestral land, which is at a distance of one ki/la from the disputed land. Malak Ram and Ved Prakash (two of the appellants) came there (the disputed land) with two camel-ploughs. A few minutes thereafter the other accused per-

B sons came there in three tempos and one tractor armed with various weapons. Reaching there they asked Ved Prakash and Malak Ram as to why they had not started ploughing. On being so encouraged when they , started ploughing the disputed land, Sm. Krishna along with her eight companions went there and implored the accused not to plough as they had been purchased and ploughed by them. Then Ram Karan (since c acquitted) instigated the other accused not to kill them. Immediately thereupon, the appellants Bhup Singh and Ishwar, who were two of the tempo drivers started their tempos and dashed against Rattan Singh, Ran Singh, Satbir Singh and Sm. Kamlesh as a result of which they fell down.

Then the other accused persons started nitting them with jailis, lathis,

D balams and pharsas as a result of which Rattan Singh, Ram Singh and

Satbir Singh fell down dead at the spot while others sustained injuries - some of them grievous. All the appellants then left the place leave behind two tempos and the camel ploughs.

Sm. Krishna who had also sustained some injuries at the hands of the miscreants rushed to her house and narrated the incident to Mange Ram.

Both of them then left for the Police Station to lodge an information about the incident. When they arrived at the local bus stand for that purpose, ._ they met Police Inspector Rattan Singh (PW 22), who along with other police personnel was coming to their village in a jeep for investigating into F the case lodged on the information of appellant Rajinder Singh on 12.11.1985. P.W. 22 recorded the statement of Sm. Krishna at the bus stand and sent it to the Police S.tation through Constable Rambhagat, who was accompanying him, for registration of a case. He then proceeded to the disputed land along with Sm. Krishna and Mange Ram to take up inves-

G tigation of the case. Reaching the spot he recorded the supplementary statement of Sm. Krishna and sent her for medical examination. He held inquest into the death of Ran Singh and Rattan Singh while S.I. Phool Singh (PW.21) who was accompanying, held inquest into the death of Satbir Singh. Some blood stained earth from five different spots were seized by him and two tempos, two camels, two ploughs and some pieces H of bricks were taken possession of. After preparing a site plan and

RAJ!NDER v. STATEOFHARYANA[M.K. MUKHERJEE,!.] 871

despatching the dead bodies for post-mortem examination, PW. 22 went A to Medical College Hospital, Rohtak where injured Ohan Singh, Sm.

Ramesh, Balbir, Sm. Kamlesh and Sm. Rajo had got themselves admitted on their own for treatment. There he recorded the statement of all the injured except Dhan Singh, as according to the doctor he was not fit to make a statement. His statement was recorded by P.W. 22 on the following day. The accused were arrested on diverse dates and various weapons were recovered from them. Those weapons along with the blood stained earth earlier seized were sent to Forensic Science Laboratory (F.S.L.) for chemical examination. After receipt of reports of chemical examination and post-mortem examination and on completion of investigation P.W. 22 submitted charge sheet against the accused.

The appellants pleaded not guilty to the charges levelled against them. Their version, as given out by them in their statements recorded under Section 313 of the Code of Criminal Procedure and by Attar Singh (OW 15), who claimed to be an eye witness, was that they were cultivating D the disputed land for a number of years. Having learnt a few days before the incident that Mange Ram was planning to destroy their crops, two of them personally asked him not to do so. As, Mange Ram refused to oblige and threatened to cause harm t~ them, lodged complaints against Mange Ram on 6.11.1985 and 11.11.1985 but. no action was taken by the Police E thereon. Encouraged thereby, in the night of November.11/12, 1985, Mange Ram and his men uprooted the crops tney had sown on the disputed land

a month earlier. For this mischief they again lodged a complaint against Mange Ram and his men and some of them were arrested. As regards the incident on November 17, 1985 their version was that at or about 6 AM. seven of them - wno are all appellants before uswent to the disputed land with camel ploughs and a tempo carrying fertiliser and seeds. While they were ploughing the land, seven persons, namely Ran Singh, Rattan Singh, Ohan Singh, Satbir, Sm. Kamlesh, Sm. Rajo and Sm. Ramesh came there carrying lathis and jailis. Ran Singh, father of Sm. Krishna (PW 13), trespassed into the di>puted land and shouted that they should be killed G and forcible possession of the land taken. Then Satbir shattered the wind screen of their tempo with a jailis while others caused hurt to some of them.

Finding no other alternative they exercised their right of private defence of property and person as a result of which all the seven persons who had trespassed into the land were injured. The other appellants however denied H

A their presence at the spot and contended that they had been falsely implicated. The appellant, Ishwar put forward a plea of a alibi contending that he was a conductor of Haryana Roadways and at the time of the alleged incident he was on duty in a bus plying from Delhi to Katra.

B In support of their respective cases the prosecution examined twenty two witnesses and the defence sixteen.

On consideration of the evidence, both oral and documentary, the trial court held, firstly, that the accused were in settled possession of the disputed land not Sm. Krishna (PW 17), widow of Shri Krishna and, C consequently the question of her delivering possession of that land to Mange Ram after the execution of the agreement for sale did not arise. As regards the sequence of events on the fateful morning the trial court observed that the prosecution version that on seeing the accused entering into the disputed land for ploughing, the complainant party came from their ancestral land and with folded hands requested them to withdraw D therefrom was patently false. with the above observation, the Court drew the following conclusion :

"What appears is that in the morning of 17.1.1985, the complainant party trespassed into this land, and when the accused party came to know about, they immediately mounted a fullstrength assault on them to throw them out. I am aware that this is not the version of either party. I am also aware of the dictum that Court is not to evolve third story. But I am also conscious that it is one of the bounden and sacred duties of the Court to sift truth, to separate the grain from the chaff. And after giving a serious through to the matter on record and the circumstances emerging therefrom, I have come to the conclusion recorded above."

The trial Court next posed the question as to whether the complainant party's illegal and unauthorised entry into the land entitled to G accused to cause harm to them - and particularly to the extent they had caused - and answered the same with the following words:

"Here, the first thing is the injuries sustained by the accused. they have just been reproduced above in paragraph No. 24. They are only eight in number and all are superficial. As against this, the H total number of injuries found on the complainant party is sixty-

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RATINDER v. STATE OF HARY ANA [M.K. MUKHERJEE, I.] 873

five. It is true that comparative number ofnjuries is not the sole A

~ .. decisive factor, but it is one of the guiding factors for the court to determine the extent of right of self-defence. Another important fact is the parts of body involved. The injuries on the deceased were on vital parts and it has not been disputed that they were sufficient to cause immediate death. Indeed, this could not be B disputed, because the deaths occurred at the spot itself. Thus is clear that the accused have committed much more harm then was necessary."

In recording the above fmding the trial Court took into consideration the fact that no explanation was forth coming either from the accused or c from D.W. 15, as to how the three victims met with their death. In negativing the plea of right of the private defence of property and person raised by the accused the Court lastly observed :

• "Furthermore, since the accused were not present in the field when D - the complainant's party entered there, as held by me, above, there was no immediate danger to their person. Therefore, no right of private defence of person accrued to them. In any case, there was no danger of death or grievous hurt and, therefore, they had no right to cause the harm which they have caused to the complainant party.

• As regards the right of private defence of property, the only offence committed by the complainant party, was that under Section 447 of the Indian Penal Code, and that would not given the accused a right of self-defence to the extent of causing grevious F hurt to death.

Thus the action of the accused party was neither within the scope of section 100 of the Indian Penal Code nor within the purview of Section 103.

G ~

Above all, the accused had time to have recourse to the protection of public authorities as well. Therefore, no right of private defence accrued to the accused at all even on the holding that they were in settled possession and the complainant party had committed trespass on the morning of 17.11.1985." H

A In assailing the judgment the learned counsel for the appellants first submitted that having disbelieved the prosecution case as to the manner in which the onslaught originated, the trial Court was not justified in basing the conviction on a case made out by itself. It was next contended that the trial Court having disbelieved the evidence of the four eye-witnesses ex- B amined by the prosecution as against ten of the accused ought not to have relied upon the self same evidence to convict the appellant. It was then contended that having regard to the findings recorded by the trial Court that the accused party were in settled possession of the disputed land and that the complainant party had criminally trespassed thereon and the uncontroverted evidence on record that four of the accused sustained C injuries in the incident, the trial Court ought to have held, in view of Section

96 of the Indian Penal Code, that no offence was committed by the accused as they acted in bonafide exercise of their right of private defence of property and person. The learned counsel lastly submitted that even if the entire case of the prosecution was believed the conviction under Section 302 read with 149 I.P.C. could not be sustained and it was liable to be D altered to one under Section 304 (Part I) I.P.C. as the facts of the case were squarely covered by exception 2 to Section 300 !PC.

In repudiating the above contentions, the learned counsel appearing on behalf of the respondent-State urged that the findings of the trial Court, E that the accused party were in settled possession of the disputed land and that the complainant party had criminally trespassed therein before the farmer's arrival, were in view of the evidence on record, patently wrong.

He, however, urged that the other findings recorded by the trial Court were fully borne out by the evidence on record. As regards the contention of the F appellants that they were entitled to an order of acquittal in view of acquittal of ten others the Counsel urged that the principle "Falsus in uno, Falsus in omnibus" was not available in criminal trial. Besides, he submitted, the reasons which weighed with he trial Court for the acquittal of the ten others were not available to the appellants. He lastly urged that considering the manner in which the assault took place and the nature and G number of injuries the accused inflicted on the deceased and other members of the complainant party Exception 2 to Section 300 of the Indian Penal Code had no manner of application.

Having carefully considered and assessed the evidence on record, so H far as they relate to the appellants, we are unable to accept any of the

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RAJINDER v. STATE OF HARYANA [M.K. MUKHERJEE, J.] 875

contentions raised on their behalf even proceeding on the assumption that A the finding of the trial Court that the accused were in settled possession of the disputed land is unassailable. Prosecution led evidence through Sm.

Krishna (P.W. 13), Sm. Kamlesh (P.W. 14), Balbir (P.W. 15) and Sm. Rajo (P.W. 16) that in the morning of November 17, 1985, when they along with their other family members namely, Ran Singh, Ohan Singh Satbir Singh, B Balbir Singh and Sm. Ramesh were cultivating their ancestral land, which separated the disputed land by a killa, accused Ved Prakash and Malak Ram came there with two camel ploughs. A few minutes thereafter the order accused came there in three tempos and one tractor armed with various weapons including pharsas, ballams and lathis and asked Ved Prakash and Malak Ram as to why they had not started ploughing the c disputed land. At that stage all the members of the complainant party went to the disputed land and requested the accused with folded hands to - withdraw from that land as they had purchased the same and also ploughed it. According to the above four witnesses, immediately thereupon on the

> instigation of Ram Karan (since acquitted) Bhup and lshwar (two of the D --

appellants) put into motion the two tempos, of which they were the drivers and dashed against some of them felling them down. Then Bhup and Ishwar stopped their tempo•. The accused persons then started beating the members of the complainant party with the various weapons they were carrying as a result of which Ran Singh, Rattan Singh and Satbir Singh fell down dead on the spot, Ohan Singh, Sm. Raja and Sm. Kamlesh sustained E grievous injuries including fractures and the other three sustained minor injuries. Then the accused persons left in one tempo and a tractor.

The accused in their turn led evidence through O.W. 15 Attar Singh to prove that in the morning when he had gone to plough his land, adjacent F to the disputed land, he found Nafe, Phool Chand, Bhup, Nathu, Mahinder, Surte and Romesh (all appellants before us) ploughing the disputed land. Sometimes thereafter he saw Ran Singh, Rattan Singh, Ohan Singh, Satbir Singh, Sm. Kamlesh, daughter of Ohan Singh and Sm. Ramesh and Sm.

Rajo, two daughter-in-law of Ohan Singh (seven members of the com- G plainant party) coming there. According to him while the male member were carrying jailis the ladies were carrying lathis. His next stated that Ran Singh raised lalkara and then starting beating Mahinder, Ramesh and Bhup causing injuries on them. Besides, Nafe was also beaten up but the witness could not say who beat him. Then Rajinder and others picked up jailis and lathis in their defence causing injuries to the above mentioned seven H

A members of the complainant party.

As noticed earlier the trial Court disbelieved both the versions relating to the genesis of the assault and gave a version of its own which has already been reproduced. We are in complete agreement with the learned counsel for the appe .. dnts that the trial Court was not justified in making out a case of its own, disbelieving and discarding the respective cases made out by the parties; but then, having given our anxious consideration to the evidence adduced by the parties regarding the origin of the incident of that fateful day, we are of the opinion that the trial Court ought to have accepted the prosecution version. The trial Court held that keeping in view the incidents that took place earlier on November 12 and November 14, 1985 and the fact that a large number of miscreants came in three tempos and one tractor armed with deadly weapons for a murderous assault it would be an insult to common sense to believe the prosecution story that the nine members of the complainant party went D there with folded hands to persuade them to withdraw. In the context of the evidence on record we are constrained to say that the above remark made by the trial Court is not only uncalled for and unsustainable but unfortunate. Admittedly only a few days backon November 12, 1985 to be precise - appellant Rajinder had lodged a complaint against some members of the complainant party including Mange Ram for committing E trespass into and damaging crops of the disputed land and in connection therewith some of them were arrested. Against on November 14, 1985 Sm.

Rajo (P.W. 16) had lodged an F.l.R. against some of the accused persons alleging commission of offences under Section 452 and 323 !PC. The motive for the assault as given therein was that the complainant party had F ploughed the disputed land. In the context of these facts, which the trial Court also noticed, it was not likely that the complainant party would venture to forcibly cultivate the disputed land immediately thereafter and face another prosecution. Judge in that light their assertion that at the material time they were cultivating their ancestral land does not seem to be improbable more so, when the accused did not even suggest, much less G prove, that they had no such land near the disputed land.

Besides, the evidence of P.Ws. 13, 14, 15 and 16 as to the manner in which the trouble started and the assault took plaee is not only cogent and consistent but also stands corroporated by other materials on the record, H which may be summarised as under :

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RA.IINDER v. STATE OF HARYANA [M.K. MUKHERJEE, J 877

(i) The accused admitted the presence of seven out of the nine A members of the complainant party (except P.Ws. 13 & 15) at the time of the incident and of their having sustained injuries.

(ii) Dr. S.K. Bhutani (P.W 2) examined P.W. 13 on 17.11.1985 at 1.45 p.m. and found three injuries on her person; one of which, he opined, could B be caused by a pointed weapon and other two by blunt weapon.

(iii) On the same afternoon (17.11.1985) Dr. J.S. Lamba (P.W. 4) examined Ohan Singh, Sm. Ramesh, Sm. Kamlesh (P.W. 14) Sm. Raja (P.W. 16) and Balbir (P.W. 15) and found lacerated injuries on their persons. On 'X'ray examination Ohan Singh was found to have sustained c compound fractures of both bones or right forearm and of right humerus and fracture of left radius: Sm. Kamlesh sustained fracture of shaft of right femur and Sm. Raja sustained fracture of left parietal bone. According to Dr. Lamba injury No. 8 of Ohan Singh - deformity of right upper limb with angulation - could be caused by being hit by a tempo and also by being run D over by it.

(iv) Dr. K.K. Chawla (P.W.1) who held the post-mortem examinalions on the three deceased on 18.11.1985 found fifteen injuries on Satbir, fourteen of which were incised and/or penetrating wounds on the upper part of the body, that is chest, neck and head; twenty five injuries on Ran E Singh of which eight were abrasions, two lacerations and the rest either incised or penetrating wounds and seventeen injuries on Rattan Singh, most of them incised and penetrating wounds. In the opinion of Dr. K.K.

Chawla the incised wounds could be caused by Pharsas and incised penetrating wounds by ballams. He further opined that injury No. 17 on F the person of Ran Singh could be caused if some projective portion of the tempo hit the victim on the thigh and injury No. 16 on the person of Ran Singh and injury No. 14 on the person of Rattan Singh could be caused if a tempo ran over the victims. :.

(v) P.W. 22, the Investigating Officer testified that on reaching the G spot he found two tempos and two camel ploughs and that later on Rajinder (the appellant) produced documents of those two tempos.

(vi) The evidence of P.W. 22 also proves that P.W. 13 lodged her complaint with him with utmost dispatch, in as much as it was made before him at 12.15 p.m.; and that the same was forwarded to and received by H

A local Magistrate on the self same day at 3.45 p.m. and

(vii) The F.I.R. contains the sub stratum of the prosecution case as detailed by P.W. 13 at the trial.

Pitted against the evidence of the prosecution witnesses as discussed above is the evidence of Attar Singh (P.W. 15) who gave the defence version of the incident, and Dr. Ravi Kanta (D.W.1) who examined the appellants Nafe, Ramesh Mahinder and Bhup Singh and found injuries on their persons. Though 14 other witnesses were also examined on behalf of the defence their evidence, however, is not relevant for our present pur- C poses. On a careful analysis of the evidence of D.W. 15, which we have detailed earlier, in the light of other evidence on record we are unable to place any reliance thereupon. According to D.W. 15 when he saw the accused working in the disputed land there was only one tempo standing by their side, but then, as noticed earlier, the evidence of P.W. 22 clearly D proves that there were two tempos at the spot and that Rajinder (the appellant) produced documents of those two tempos. Such presence of two tempos not only discredits D.W. 15 but also make the version of the appellants that they came with one tempo which carried fertilisers untrustworthy. D.W. 15 next stated that the male members of the complainant

party were carrying jailis and the ladies lathies and that Ran Singh had caused hurt to Mahinder, Ramesh and Bhup. If this part his evidence is to be believed Ran Singh must have assaulted them. with jailis, which admittedly is a sharp weapon, but Dr. Ravi Kanta (D.W.l) opined that all the injuries he found on their persons caused by blunt weapons. Then again, according to D.W. 15, after the above named four persons were injured the accused persons present there took up the jailis and lathies and beat the seven members of the complainant party present there to defend themselves, but as noticed earlier, Dr. Chawla (P.W.l) testified that most of the injuries found on the persons of the deceased could be caused by ballams, pharsas and spears. While being cross-examined he asserted that some of the injuries could not be caused by jailis or by lathi and they could G be caused on being run over by tempo. The other reason which prompts us to discard the evidence of D.W. 15 is that he did not give any explanation whatsoever as to how Ran Singh, Rattan Singh and Satbir Singh met with their death at the spot. Indeed, according to him nobody had died on the field even though he claimed to have left the field after the fight was over.

H According to this witness only Ran Singh was lying on the ground while

RAJINDER v. STATEOFHARYANA[M.K. MUKHERJEE, J.] 879

others were standing. We are in complete agreement with the trial Court A that having regard to the nature and number of injuries sustained by Rattan Singh and Satbir it was absurd to claim that he found them standing.

Coming now to the evidence of D.W. 1 we find that he examined the appellants Nafe Singh and Ramesh in the night of 17.11.1985 at 11.30 p.m. B He found two lacerated wounds and one diffused swelling on the person of Nafe Singh and two lacerated wounds on the person of Ramesh. His evidence further discloses that on 21.11.1985 he examined appellant Rajinder Singh and Bhup Singh and found one linear lacerated wound on the person of the former and one linear injury and a scab on the person of Bhup Singh. He testified that the injuries seen by him on the above two C persons were four days old. In cross-examination D.W. 1 admitted that the injuries found by him on the persons of the above four could be sustained by fall. He further opined that injuries found by him on Mahinder and Bhup Singh could be caused in agricult\Jral pursuits like striking with plough.

From the above discussion the only legitimate and reasonable inference that can be drawn is that the accused party had gone to the disputed land with a determination to cultivate it and, for that purpose, fully prepared to thwart any attempt by Mange Ram and his men to disturb such cultivation and meet any eventuality. As they were about cultivate the E land the complainant party which was cultivating their ancestral land nearby, went there and entreated them to vacate the land claiming to be its owner and in possession. Immediately thereupon the accused party launched a murderous attack on the complainant party resulting in death of three, grievous injuries to three and simple injuries to other three. In F course of that attack four members of the accused party received some injuries at the hands of one or other of the complainant party (as testified by P.W.14).

Having drawn the above inferences we have now to ascertain whether the unauthorised entry of the complainant party in the disputed land, which G according to the trial Court was in settled possession of the accused party legally entitled the latter to exercise their right of private defence and, if so, to what extent. The fascicule of Sections 96 to 106 I.P.C. codify the entire law relating to right of private defence of person and property including the extent of and the limitation to exercise of such right. Section. H

A 96 provides that nothing is an offence which is done in the exercise of the right of private defence and Section 97 which defines the area of such exercise reads as under:

"Every person has a right, subject to the restrictions contained in

B section 99, to defend -

First. - His own body, and the body of any other person against any offence affecting the human body:

Secondly. - The property, whether moveable or immoveable, of c himself or of any other person. Against any act which is Im offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass.

(emphasis supplied) D On .a plain reading of the above section it is patently clear that the right of private defence, be it to defend person or property, is available against an offence. To put it conversely, there is no right of private defence against any act which is not an offence. In the facts of the instant case the accused party was entitled, in view of Section 97 and, of course, subject to E the limitation Section 99, to exercise their right of private defence of property only if the unauthorised entry of the complainant party in the disputed land amounted to "criminal trespass" as defined under section 441 I.P.C. The said Section read as follows :

F "However enters into or upon property in the possession of another with intent to commit an offence or to intimidate. Insult or annoy any person in possession of such property.

or having lawfully entered into or upon such property unlawfully remains there with intent thereby to intimidate, insult or annoy G any such person, or with intent to commit an offence.

is said to commit "criminal trespass 11 •

It is evide.nt from the above provision that unauthorised entry into or upon property in the possession of another or unlawfully remaining there H after lawful entry can answer the definition of criminal trespass if, and only

. -

RAJINDER v. STATE OF HAR Y ANA [M.K. MUKHERJEE. J. J 881

if, such entry or unlawful remaining i~ with the intent to comn1it an offence or to intimidate insult or annoy the person in possession of the property.

In other words, unkss any of the intentions referred in Section 441 is proved no offence of criminal trespass can be said to have been committed.

Needless to say, such an intention has to be gathered from the facts and circumstances of a given case. Judged in the light of the above principles it cannot be said that the complainant party conlll1itted the offence of "criminal trespass" for they had unauthorisedly entered into the disputed land, which was in possession of the accused party, only to persuade the latter to withdraw thereupon and not with any intention to commit any offence or to insult, intimidate or annoy them. Indeed there is not an idea of material on record to infer any such intention. That .necessarily means that the accused party had not right of private defence to property entitling them lo launch the murderous attack. On the contrary, such murderous attack not only gave the complainant party the right to strike back in self defence but disentitled the accused to even claim the right of private defence of person.

We hasten to add, that even if we had found that the complainant party had criminally trespassed into the land entitling the accused party to exercise their right of private defence we would not have heen justified in disturbing the convictions under Section 302 read with Section 149 LP.C.,

for Section 104 I.P.C. expressly provides that right of private defence E against 11criminal trespass 1 ' does not extend to the voluntary causing of death and Exception 2 to Section 300, I.P.C. has no manner of application here • as the attack by the accused party was premeditated and with an intention of doing more harm then was necessary for the purpose of private defence, which is evident from the injuries sustained by the three deceased, hath F regarding severity and number as compared to those receive by the four accused persons. However, in that case we might have persuaded ourselves to set aside the convictions for the minor offence only; but then that would have been, needless to say, a poor solace to the appellants.

As regards the contention raised on behalf of the appellants that having acquitted some of the accused persons disbelieving the evidence of the prosecution witnesses the trial Court ought not to have relied upon the same to convict them, we can only say that the learned counsel for the State

was fully justified in contending that the maxim 'Falsus in uno, Falsus in omnibus' does not apply to criminal trials and it is the duty of the Court H

A to disengage the truth from falsehood instead of taking an easy course of rejecting the evidence in its entirety solely on the ground that the same is not deceptable in respect of some of the accused. On perusal of the impugned judgment we find that the trial Court took great pains to consider and discuss the case of the individual accused including the please

of alibi raised on behalf of appellant lshwar and others and on a threadbare discussion thereof found that the participation of the appellants before us in the incident stood proved beyond all reasonable doubt, while acquitting others on grounds which were available to them only. Having carefully considered the evidence against each of the appellants we do not find any reason to take a different view from the one taken by the trial Court so far as the appellants are considered except appellate .Tai Narain as we feel that the trial Cc 1rt having acquitted those whose names did not find place in the F.l.R. ought to have recorded an order of acquittal in his favour also as he stood on the same footing.

In the result we dismiss this appeal of all the appellants except D appellant Jai Narain, whose appeal we allow. Since all the appellants are on bail, Jai Narain will stand discharged from his bail bond while others \Vill no surrender to their bail bonds to serve out the sentences imposed upon them by the trial Court.

R.P.

Appeal -dismissed.