Ram Pat & Ors. Vs.
State of Harayana [2009] INSC 1041 (12 May 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 581 OF 2007 RAM
PAT & ORS. ... APPELLANTS Versus
S.B. Sinha, J.
1.
1
Appellants, four in number, are before us aggrieved by and dissatisfied with
the judgment and order dated 14.2.2007 passed by a Division Bench of the High
Court of Punjab & Haryana at Chandigarh in Criminal Appeal No.298-DBA of
1997, in terms whereof a judgment of acquittal recorded by learned Sessions
Judge, Narnaul in case No.27 of 1993 was set aside.
2.
We
may, at the outset, notice that eight persons were arrayed as accused in the
aforementioned case. The High Court, however, did not grant special leave in
respect of accused Nos.6 to 8. Accused No.1 died during the pendency of the
trial. Accused Nos.2 to 5 only are, therefore, before us.
3.
The
prosecution case is as under:
Daya Ram and Ram Pat,
along with Rajinder, Surinder and Mukesh alias Manoj had purchased 1/36th share
of the right of the owners in the land measuring 264 kanals, 12 marlas
comprised of Khewat No.10, Khatauni No.69 mustkil and Killa No.24/27 and 1/48th
share of 37 kanals 8 marlas of land by reason of a deed of sale dated 7.5.1993.
They are said to have purchased 1/18th undivided share in the land measuring
264 kanals 12 marlas and 1/24th share of land measuring 2 kanals 5 marlas
totaling 14 kanals 14 marlas of land by reason of a deed of sale dated
24.5.1993. Allegedly, they sowed some Bajra crop therein.
Occurrence is said to
have taken place on the land comprised of Khasra No.24/8/1 situated at village
Nawadi. Harda Ram (the deceased) claimed himself to be the co-owner and in
possession of the said land for a long time. He claimed right thereon on the
basis of khasra girdawaries.
3 Appellants, as
noticed hereinbefore, claimed to be in possession thereover in terms of the
aforementioned deed of sale dated 7.5.1993 and 24.5.1993.
According to the
prosecution, however, the deceased was in possession of the land and after the
execution of the said deeds of sale, it was the accused persons who had tried
to enter into the suit land and plough it.
The prosecution case,
as disclosed in the FIR lodged by P.W.8 - Rajbir, was that he was ploughing his
agricultural land with his tractor on or about 14.7.1993. His father Harda Ram
("the deceased" for short) was also standing in the field. Sheo Ram,
Daya Ram, Bajrang and Raja Ram armed with lathies and Ram Pat and Balwant armed
with Jellies came at the spot.
The entire occurrence
as would appear from the depositions of the prosecution witnesses before the
court lasted for hardly two to two and half minutes.
Ram Pat is said to
have given a jelli blow on the head of the deceased;
Sheo Ram inflicted a
lathi blow above his eyes; Balwant Singh gave jelli blow on the back of his
neck (Gudhi); Daya Ram inflicted a lathi blow on his back and Bajrang also
inflicted a lathi blow on his person.
4 In the FIR, Rajbir
further stated that in the meanwhile his uncle Lal Singh, his aunt Dhankauri
wife of Lal Singh and his sister Mamli, who were fetching water from a water
tap situated nearby, had arrived at the scene of occurrence. Basanti and
Santosh armed with lathis came there. Whereas Basanti dealt a lathi blow on the
head of Mamli, Santosh gave a lathi blow on the person of Dhankauri. P.W. 8
further stated that Raja Ram also inflicted a lathi blow on the person of Lal
Singh. The occurrence is said to have been witnessed by Ami Lal son of Sohan
and Ram Avtar son of Bhuru Ram, who intervened and rescued them from the
clutches of the accused and thereafter the accused persons left the spot with
their weapons. P.W. 8 further alleged that after getting the injured admitted
in the Primary Health Centre, Ateli, he proceeded towards the Police Station
for lodging the FIR.
His statement was
recorded at 1.50 p.m.
The deceased was,
however, taken to Civil Hospital, Narnaul. Head Constable Kailash Chand (P.W.
13) came to learn thereabout on reaching Primary Health Centre, Ateli. He
recorded the statement of Dhankauri, Mamli and Lal Singh. He thereafter came to
Civil Hospital, Narnaul with a view to examine the deceased but it was found
that he was not in a position 5 to make a statement. The doctor had also reported
that the injuries suffered by the deceased were dangerous to life and as such
the offence was converted to one under Section 307 IPC.
4.
Before
the learned Sessions Judge, 14 witnesses were examined on behalf of the
prosecution. Some of the witnesses although named in the charge-sheet were not
examined by the public prosecutor on the premise that it was not necessary to
examine them. They are Dr. Vijay Singh Yadav, Dr. Vinay Chaudhary, Dr. O.P.
Saroha, Sheo Ram, Babu Lal, Raghbir, Mamli, Dhankauri and Ram Avtar. Lal Singh
and Suraj Bhan were also not examined on the ground of having been won over by
the accused.
5.
The
prosecution in support of its case mainly relied upon the evidence of Rajbir
(P.W.8), Lal Singh (P.W.12). We would refer to their evidence a little later.
6.
We
may, however, notice that in the aforementioned incidence, Mamli, Dhankauri,
wife of Lal Singh, as also Lal Singh were injured. They were examined by Dr.
S.C. Goel (P.W.5). Mamli was examined immediately after the said occurrence and
two injuries were found on her person, namely:
6 "1. There was
a lacerated fresh bleeding would present on parietal prominence, size 5.5 cms x
bone deep. X-ray was advised. There was swelling of 2 cms diameter around it.
2. On the back of the
chest, there was a reddish contusion of 11 cms x 1/1/2 cms.
Tenderness was
present. X-ray was advised."
Dhankauri, wife of
Lal Singh was found to have suffered four injuries.
He was examined at
about 1.40 p.m. The injuries suffered by her are as under:
"1. Two cms.
long lacerated wound on the left fore-arm of the size, in the bangles area,
Fresh bleeding was present.
2. On the top of the
scalp a lacerated wound 4 cms x 1 cm, transverse, skin deep with swelling of 1
cm in diameter around it was present. It was freshly bleeding and it was
advised x-ray.
3. There was a skin
colour swelling on the left side of the fore-head size 4 x 3 cms. Tender was
hard and there was 1 cm long reddish abrasion on it was present. X-ray was
advised.
4. The left shoulder
blade was swollen, tender little reddish on the back on the upper part of the
chest. The movement of the shoulder was painful. Advised X-ray.
7 Lal Singh was
examined at about 1.55 p.m. He is said to have suffered the following injuries:
"1. Below right
parietal prominence, there was a lacerated freshly bleeding wound of 4 x = cm
bone deep with swelling of 1 cm.
diameter around it.
X-ray was advised.
2. In front of left
parietal prominence, freshly bleeding lacerated wound of 4 x = cm was present.
It was bone deep with the swelling of 1 // 1/2 of diameter around it. X-ray was
advised.
3. There was a
reddish abrasion of 2 cms on the top of right shoulder. Tender.
Movement of shoulder
was painful. It was kept under observation.
4. Two penetrated
wounds of = cm x = cm on the right leg, inner side. = cms apart from each
other. It was 1 //1/2 cm. deep. Freshly bleeding. It was kept under
observation.
Margins were
lacerated.
The doctor opined
that the injuries suffered by Mamli, Dhankauri and Lal Singh were inflicted by
a blunt weapon and were caused within a duration of 24 hours of examination.
8 Two of the
accused, namely, Raja Ram and Sheo Ram were also found to have suffered
injuries. They were also examined by Dr. S.C. Goel (P.W.5).
The injuries suffered
by Sheo Ram are as under:
"1. A lacerated
wound of 3 cms present on top and middle of fore-head, upper end on the scalp
< cm wide. It was bone deep and freshly bleeding was present on cleaning and
swelling of 1 cm diameter around it. X-ray was advised.
2. Reddish abrasion
of 15 x 1 cms on right fore-arm, outside, down to wrist. Tender have black
loose clot. Fresh bleeding on cleaning was present. Movement was painful. X-ray
was advised.
3. On top and back of
right shoulder, multiple reddish contusions were present, involved shoulder
blade and back of chest. Painful tender and the movement was restricted. X- ray
was advised.
4. Reddish abrasion
of 2 x 1 cms. on the back of left shoulder. Painful and movements were within
limits.
5. Lacerated freshly
bleeding wound was present on the back of left fore-arm. 7 cms.
below the elbow
joint/ Size 2//1/2 x = cm skin deep.
6. On all over the
back chest of the left and right, multiple cylindrical reddish contusions were
present. X-ray was advised.
7.
The
patient had complaint of pain all over the body.
The injuries suffered
by Raja Ram are as under:
"1. Reddish
contusion of 5 x 1 cms on the back of right fore-arm, middle, tender, movements
were normal.
2. Reddish contusion
of 7 x 1 cms on the top of left shoulder, tender, movements were painful.
3. On the top of
right shoulder and deltoid muscle, reddish contusion 11 x 2 cms.
tender, movements
were painful. X-ray was advised.
4. On the right
shoulder blade, three reddish irregular contusions in an area of 8 x 8 cms was
present.
5. On the back of
right index finger, reddish abrasion of 1 x = cms was present. Fresh bleeding
was present on cleaning. It was painful.
6. The left wrist
joint on the back was swollen.
Skin colour and it
was painful. Defuse was more on the side of thumb. Movements were painful.
7. On the left
parietal prominence, there was reverse L shape wound of 3 x 1 cms and = 10 cm.
It was full of burnt cloth. On cleaning, fresh bleeding occurred. Bone deep,
tender and swelling of 1 diameter around it. X-ray was advised.
It is, however, of
some significance to notice that according to Dr. Goel, injuries Nos.2 to 6 on
the person of Sheo Ram and injuries Nos. 1 to 6 on the person of Raja Ram could
be caused by a fall on a hard surface.
It may further be
placed on record that Sheo Ram and Raja Ram were not admitted in the Hospital.
There was no X-ray facility in the Primary Health Centre, Ateli.
It, however, stands
admitted that X-ray of the aforementioned two accused were not taken
subsequently. No complaint was made; no further medical complication was found
and no further treatment was found to be necessary.
Harda Ram, the
deceased, was examined by Dr. A.K. Chhakkar (P.W. 10) at about 1.40 p.m. at
Civil Hospital, Narnaul. He is found to have suffered the following injuries.
11 "1. A
reddish contusion 6 cms. x 6 cms. on left side parietal temporal region.
Swelling was present. It was kept under observation and advised X-ray.
2. A reddish
contusion 3 x 3 cms in size on the right side of temporal parietal region.
Swelling was present.
X-ray was advised.
3. A reddish
contusion 3 x 1 cm. on the lateral aspect of left wrist. Swelling was present.
4. Bleeding from
teeth was present. Referred Dental surgeon."
7. Harda Ram died on
the same day. A post-mortem examination was conducted by a panel of doctors at
10.30 a.m. on 15.7.1993. The report shows the presence of following ante-mortem
injuries on his person:
"1. There was
swelling of 10 cms. x 3 cms on the left side of tempo parietal region. There
was scalp haemotoma size 11 cms x 8 cms on the left side front parieto temporal
region, reddish in colour. On dissection, there was fracture of left frontal
bone and parietal bone. Extra dural haemotoma and sub-dural haemotoma,
thickness 1 cm was present on the parieto temporal region.
2. There was a
reddish black contusion around right eye. On dissection, there was fracture of
right side frontal bone.
3. Bleeding
(haemotoma) was present in the socket of right side, upper medial and incisor
teeth. Surrounding teeth were unhealthy, Dental carries was present.
There were in all 6
teeth in upper jaw and 7 teeth in the lower jaw. No corresponding injury over
lip was present.
4. Reddish abraded
contusion 3 x 1 cm. on the posterior surface of the left arm middle 1/3rd was
present."
8. The learned trial
judge recorded a judgment of acquittal as noticed by the High Court on the
following grounds:
"1. The accused
having purchased the land and received the possession of the land from the
vendors, were in possession of the same since 16 days prior to the occurrence,
whereas the complainant party had no right to destroy the Bajra crop as sown by
them on 28.6.1993. Consequently, when asked complainant party inflicted
injuries upon them, therefore, they in exercise of right of private defence of
the person and property has been fully protected under the law and inflicted
injuries to the complainant party.
2. The presence of
Rajbir (PW8) at the time of occurrence is doubtful.
3. The accused party
also suffered injuries which were not explained by the prosecution, therefore,
they would be deemed to have suppressed the genesis of occurrence.
4. The FIR is anti
dated and anti timed"
9. The High Court,
however, by reason of the impugned judgment reversed the said judgment of the
trial court, holding:
"From the
consistent and trustworthy testimony of Rajbir (PW8), Amar Singh (PW9) and Lal
Singh (PW12) it is amply established that all the five accused, armed with
jallies and lathies, while entering into the land of the complainant challenged
Harda Ram (deceased) not to plough the land and they in furtherance of their
common intention inflicted numerous injuries to him as a result of which he
died. They not only caused injuries to the deceased but also to other three
persons Mamli, Dhankauri and Lal Singh. The accused party has also not denied
having caused injuries to them but they have taken a specific defence that the
injuries were caused by Sheo Ram and Raja Ram only that too in their
self-defence.
But the factum of
with regard to the presence of the present respondents has been duly taken note
of by us and the plea of right of private defence has been turned down in the
preceding paras. It would not be inappropriate to observe that the trial Court
while acquitting the accused on the basis of some inadmissible evidence and
also overlooking the facts as discussed in the preceding paras, fell in error
and formed a view which was not practically reasonable in the facts and
circumstances of the case. Consequently, interference in the impugned judgment
has become inevitable.
As an upshot of the
above discussions, necessary conclusion which can be drawn is that the
prosecution has been successful in leading sufficient evidence against the
accused to prove the fact that they in furtherance of their common object
inflicted injuries to Harda Ram which were found sufficient to cause death in
the ordinary course of nature. Since Dr. Dinesh Poddar (PW11) opined that cause
of death was coma, due to compression of brain as a result of head injury which
is attributed to Ram Pat accused, therefore, he is convicted under Section 302
IPC and the remaining accused namely Sheo Ram, Daya Ram, Balwant and Bajrang
are convicted under Section 302/149 IPC. Consequently, they are also convicted
under Sections 447/148/506 IPC.
Now coming to the
sentence, since the minimum sentence is being awarded against the accused,
therefore, we do not feel the necessity to hear them on quantum of sentence.
Consequently, accused - respondent Ram Pat is sentenced to undergo imprisonment
for life and to pay fine of Rs.500/-. In default of payment of fine to further
undergo rigorous imprisonment for one month under Section 302 IPC. The
remaining accused is also awarded the same sentence under Sections 302/149 IPC,
as has been awarded to the accused Ram Pat under Section 302 IPC.
Since the accused
have already been sentenced for graver offence, therefore, we do not 15 feel
necessity to sentence them under Sections 148, 447 and 506 IPC
separately."
Appellants are, thus,
before us.
10. Mr. Sushil Kumar,
learned Senior Counsel appearing on behalf of the appellants would submit i.
Learned trial judge having assigned sufficient and cogent reasons in support of
his findings and its view being a plausible one, the High Court should not have
interfered therewith.
ii. "Settled
possession" on the part of the accused having been found as of fact by the
learned trial judge inter alia on the basis of the admission made by the first
informant himself in Exhibits DN & DQ, the High Court was not correct in
interfering therewith.
iii. Exercise of
right of private defence on the part of the injured accused persons, namely,
Sheo Ram and Raja Ram having been accepted and the High Court itself having not
granted special 16 leave to appeal so far as they are concerned, it must be
held to have committed a manifest error insofar it failed to extend the said
benefit to the appellants also.
iv. In any event, the
prosecution having not explained the injuries sustained by two of the accused
and the FIR having been anti- dated and anti-timed, no interference with the
judgment of the trial court was warranted at the hands of the High Court.
11. Mr. T.V. George,
learned counsel appearing on behalf of the State, on the other hand, would
support the impugned judgment.
12. The accused
admittedly did not purchase any specific portion of the property. They
purchased undivided share. By reason thereof, in law, they did not acquire any
right to obtain possession of the lands. Harda Ram and his family being the
co-sharers did not give any consent for hading over their possession in their
favour. In law, therefore, the accused persons being purchasers of an undivided
share merely acquired a right to sue for partition.
In M.V.S. Manikayala
Rao vs. M. Narasimhaswami & Ors. [(AIR 1966 SC 470], this Court held:
17 "Now, it is
well settled that the purchaser of a coparcener's undivided interest in joint
family property is not entitled to possession of what he has purchased. His
only right is to sue for partition of the property and ask for allotment to him
of that which on partition might be found to fall to the share of the
coparcener whose share he had purchased."
{See also Hardeo Rai
vs. Sakuntala Devi & Ors. [(2008) 7 SCC 46]} Recently in Peethani
Suryanarayana & Anr. vs. Repaka Venkata Ramana Kishore & Ors. [2009 (2)
SCALE 461], this Court held:
"It is also not
in dispute that the appellants, being purchasers of undivided share in a joint
family property, are not entitled to possession of the land that they have
purchased. They have in law merely acquired a right to sue for partition"
The two deeds of sale
were executed in their favour on 7.5.1993 and 24.5.1993. The learned trial
judge, in our opinion, was wholly incorrect keeping in view the aforementioned
legal position that having regard to the stipulations contained in the said
deeds of sale, possession of the vended properties had been handed over; the
vendees would be deemed to be in possession. That is not the law. Handing over
of possession is a physical act. Nothing has been brought on record to
establish that in fact physical possession had been handed over by all the co-sharers.
12. It is true that
some overt acts were committed by the accused on 28.6.1993. It now, however,
stands admitted that questioning the validity or otherwise of the
aforementioned deeds of sale dated 7.5.1993 and 24.5.1993, father of the
deceased Harda Ram filed a suit and an ad interim order of injunction was
passed in their favour. Exhibit DN whereupon strong reliance has been placed is
a complaint before the court of City Magistrate, Narnaul being under Sections
107 and 151 of the Code of Criminal Procedure (for short, "the
Code"). The translated version thereof reads as under:
"It is submitted
that the under mentioned persons cultivated our field after trespassing: Sheo
Ram s/o Sh. Ganpat, Daya Ram s/o Sheo Ram, Ram Pat s/o Sheo Ram, Surendra s/o
Tarachand, Ami Lal s/o Ganpat, Raja Ram s/o Ami Lal, Jagdish s/o Ami Lal,
Narendra s/o Raja Ram, Bajrang s/o Jaisukh, Lala Ram s/o Ganpat, Balwant s/o
Kabul Singh, Omvir s/o Kabul Singh, Rajender s/o Ramswaroop, al r/o Gandala and
relatives of Sheo Ram. These persons cultivated the land before we reach there
in which our date was fixed on 28.6.93 before the City Magistrate, Narnaul. The
tractor was belonged to Rajender r/o Gandala. The said land/field is situated
near the school and (DHANI) at Nawabi. When we reached at the village then Amar
Singh s/o Sohan Lal told us that those persons were holding Axes and sticks
(Lathis).
After hearing it we
reached at Ateli. Neither have they had any Registry nor any mutation in their
names.
And from whom
registry has been done have been injuncted.
We have revenue
entries (GIRDAWARI) in our name for last 32 years.
xxx xxx xxx These
persons are going against the law.
They have not their
names in the Revenue papers (JAMANBANDI). The action be taken against them and
they should cultivate the land only after partition. Whether the residents of
Gandala will be able to give the possession forcibly to them? Which is not in the
possession of the person who has to give the possession. And one appeal dated
15.2.93 is pending against them in the court of Narnaul and a stay order dated
14.6.93 is also against them. They are working against the law.
They must be
restricted. Neither they have any order of PATWARI and TEHSILDAR nor they are
owner of any number. They have 1/12 share.
They should get it
after partition and cultivate that portion which they are to be entitled for.
There is not any mutation in their names.
These persons should
be restricted. They are going against the law."
20 P.W. 8 was not
confronted with the purported admission by him. He could have explained the
same. In any event, admission on his part was not such which was admissible
against him proprio vigore.
Mr. Sushil Kumar has
drawn our attention to a decision of this Court in Bharat Singh & Anr. vs.
Bhagirathi [(1966) 1 SCR 606], wherein this Court held:
"Admissions have
to be clear if they are to be used against the person making them. Admissions
are substantive evidence by themselves, in view of ss. 17 and 21 of the Indian
Evidence Act, though they are not conclusive proof of the matters admitted.
We are of opinion
that the admissions duly proved are admissible evidence irrespective of whether
the party making them appeared in the witness box or not and whether that party
when appearing as witness was confronted with those statements in case it made
a statement contrary to those admissions."
That was, however, a
decision which was rendered in a civil matter.
Admission made by one
of the parties thereto was clear and unequivocal.
We may, however,
notice that in certain situations even an admission can be explained.
21 In a case of this
nature, therefore, the statement made in the aforementioned documents or before
the Deputy Superintendent of Police cannot be said to be an admission that they
had been totally dispossessed which would be admissible against P.W.8 proprio
vigore.
Another purported
admission made by P.W. 8 was said to have been made in Exhibit DQ. The said
document disclosed that the Subordinate Judge First Class, Narnaul had
confirmed the order of injunction dated 14.6.1993 by an order dated 9.12.1994
whereagainst an appeal was preferred by Daya Ram and Ram Pat in the Court of
Additional District Judge, Narnaul. The parties admittedly had also been
litigating before the Revenue Authorities in regard to their respective claims
in the matter of getting their respective names mutated in the revenue records.
The entries in the
revenue records stood in the name of the deceased and his family.
13. Mr. Sushil Kumar
made two inconsistent submissions before us;
firstly, relying on
or on the basis of the decision of the Privy Council in (Thakur) Nirman Singh
& Ors. vs. Thakur Lal Rudra Partab Narain Singh & Ors. [1926 Privy
Council 100], it was urged that the entry in the revenue 22 records do not
prove possession;, on the other hand, our attention was drawn to the order
passed by the Financial Commissioner dated 25.2.2002 in terms whereof the order
of the appellate authority whereupon reliance has been placed by the High Court
to contend that the order passed by the revenue authorities mutating the names
of the accused had been set aside. The Financial Commissioner, even if the
subsequent event is to be taken note of, in his order held that actual
possession cannot form the basis of mutation of the name of a person claiming
to be in possession in the revenue records.
14. We would,
therefore, proceed on the basis that the entries made in the revenue records
were not decisive for proving actual possession.
For the purpose of
appreciation of evidence on possession, however, the legal position should have
been considered. Appellants herein were purchasers. We have noticed
hereinbefore that they did not obtain any right to possess the land having not
purchased any definite portion of the land;
they merely purchased
undivided share. Thus, even their vendor could not have put them in possession.
Even otherwise, it has not been denied or disputed that the deceased and his
family were in possession prior to 28.6.1993.
23 If that be so,
having regard to the provisions contained in Section 110 of the Indian Evidence
Act, 1872, a presumption would arise that the deceased and the members of his
family continued to be in possession.
The sole question,
therefore, which arose for consideration before the learned trial judge and
consequently before the High Court was as to whether the purported overt acts
committed by the accused on 28.6.1993 would amount to `settled possession' so
as to enable them to exercise their right of private defence in respect of the
property. Strong reliance has been placed before the learned trial judge as
also before us on Puran Singh & Ors. vs. The State of Punjab [(1975) 4 SCC
518] wherein Fazal Ali, J. speaking for the Bench considered the earlier
decision of this Court in Munshi Ram vs. Delhi Administration [(1968) 2 SCR
455], to hold:
"...This
particular expression has persuaded the High Court to hold that since the
possession of the appellants party in this case was only a month old, it cannot
be deemed to be a settled possession. We, however, think that this is not what
this Court meant in defining the nature of the settled possession. It is indeed
difficult to lay down any hard and fast rule as to when the possession of a
trespasser can mature into a settled possession. But what this Court really
meant was that the possession of a trespasser must be effective, undisturbed
and to the knowledge of the owner or without any attempt at concealment. For
instance a stray or a casual act of possession would not amount to settled
possession. There is no special charm or magic in the word 'settled possession'
nor is it a ritualistic formula which can be confined in a strait jacket but it
has been used to mean such clear and effective possession of a person, even if
he is a trespasser, who gets the right under the criminal law to defend his
property against attack even by the true owner. Similarly an occupation of the
property by a person as an agent or a servant at the instance of the owner will
not amount to actual physical possession. Thus in our opinion the nature of
possession in such cases which may entitle a trespasser to exercise the right
of private defence of property and person should contain the following
attributes:
(i) that the
trespasser must be in actual physical possession of property over a
sufficiently long period;
(ii) that the
possession must be to the knowledge either express or implied of the owner or
without any attempt at concealment and which contains an element of animus
prossendie. The nature of possession of the trespasser would however be a
matter to be decided on facts and circumstances of each case;
(iii) the process of
dispossession of the true owner by the trespasser must be complete and final
and must be acquiesced in by the true owner; and (iv) that one of the usual
tests to determine the quality of settled possession, in the case of culturable
land, would be whether or not the trespasser, after having taken possession,
had grown any crop. If the crop had been grown by the trespasser, then even the
true owner has no right to destroy the crop grown by the trespasser and take
forcible possession, in which case the trespasser will have a right of private
defence and the true owner will have no right of private defence.
These principles
logically flow from a long catena of cases decided by this Court as well as
other High Courts some of which have been referred to in the judgment of this
Court in Munshi Ram's case (supra)."
xxx xxx xxx "18.
The second point that falls for determination is as to what is the extent of
right of private defence which the accused can claim in this case? In this
connection, the High Court has given a finding that since the prosecution party
had entered the land in. possession of the accused and were trying to plough
it, the appellants should have taken recourse to the public-authorities instead
of indulging in free fight with the prosecution. In other words, the High Court
found that the right of private defence available to the accused was under the
limitations provided for in Sections 99 to 102 of the Indian Penal Code and
these limitations apply to the facts of the present case, and the accused
cannot claim any right of private defence.
With respect we find
ourselves unable to agree with this somewhat broad statement of the law. It is
true that the right of private defence of person or property is to be exercised
under the following limitations:
26 (i) that if there
is sufficient time for recourse to the public authorities the right is not available;
(ii) that more harm
than necessary should not be caused;
(iii) that there must
be a reasonable apprehension of death or of grievous hurt to the person or
damage to the property concerned."
(See also Rame Gowda
(Dead) by L.Rs. vs. M. Varadappa Naidu (Dead) by L.Rs. & Anr. [(2004) 1 SCC
769] The four attributes of settled possession referred to in Puran Singh
(supra), in our opinion, ought to be read conjunctively and not disjunctively.
15. We may also add
that the question must be considered keeping in view the facts and
circumstances of each case. The parties were on litigating terms. The first
informant and his family were attending the court in connection with
litigations concerning the very self same land. The accused persons came
stealthily with a tractor and cultivated it. The High Court, in our opinion,
for good reasons opined that they had not sown any Bajra which was the specific
defence taken by the accused. Ram Avatar, Halka Patwari (PW7), who was an
independent witness, in his evidence, categorically stated that he could not
say as to whether any crop was sown.
27 He, however,
opined that had the crop been sown 16 days prior to the occurrence, then the
same would have grown to the extent of 6 inch to 1 feet.
Such a solitary overt
act which had not been repeated on days subsequent to 14.6.1993 in respect
whereof even some litigations started and, thus, the same cannot give rise to
an inference that the accused were in settled possession of the land and other
attributes in regard thereto have been satisfied so as to enable them to claim
a right of private defence in respect of the property.
In view of the
decision in Puran Singh (supra), the trespassers not only must be put in actual
physical possession of the property but also must continue to be in possession.
Acquiescence to act of purported possession by the accused on the part of the
complainant would arise only if an attempt is made to take possession in their
presence. On the date of occurrence, PW 8 started cultivating. It has been
amply proved that the scuffle lasted for only two minutes to two and half
minutes. PW8 - Rajbir was not armed with any weapon, so was not Harda Ram (the
deceased). It was Lal Singh alone who had in his hand a small twig (Kamari).
According to him, the same is used to drive camels. Kamari was said to be used
by Lal Singh in his sole defence as a result whereof Sheo Ram and Raja Ram were
injured. We have noticed hereinbefore that the injuries on the person of the
said two accused were simple in nature. It is true that the fact that two of
the accused persons had suffered injuries had not been disclosed in the FIR or
in their statement before the Investigating Officer, but the same, in our
opinion, was not necessary inasmuch as they got themselves medically examined
by Dr. Goel almost at the same time when the other prosecution witnesses got
themselves examined. By that time they had already been arrested. It was the
police authorities who had submitted an application along with the injuries
chart. They had been brought by Constable Satbir Singh. Thus, the fact that two
of them had suffered injuries in the same incident was known to the
Investigating Officer.
It has furthermore
well settled that whereas grievous injuries suffered by the accused are required
to be explained by the prosecution, simple injuries need not necessarily be.
Non explanation of simple injuries of the nature suffered by the accused would
not be fatal.
In Hari vs. State of
Maharashtra [2009 (4) SCALE 103], this Court held:
"30. On the
other question, namely, non- explanation of injury on the accused persons,
learned Counsel for the appellant has cited a decision in Lakshmi Singh and
Ors. v. State of Bihar (1976) 4 SCC 394. In the said case, this Court while
laying down the principle that the prosecution has a duty to explain the
injuries on the person of an accused held that non-explanation assumes
considerable importance where the evidence consists of interested witnesses and
the defence gives a version which competes in probability with that of the
prosecution case.
31. But while laying
down the aforesaid principle, learned Judges in paragraph 12 held that there
are cases where the non-explanation of the injuries by the prosecution may not
affect the prosecution case. This would "apply to cases where the injuries
sustained by the accused are minor and superficial or where the evidence is so
clear and cogent, so independent and disinterested, so probable, consistent and
creditworthy, that it far outweighs the effect of the omission on the part of
the prosecution to explain the injuries." Therefore, no general principles
have been laid down that non-explanation of injury on accused person shall in
all cases vitiate the prosecution case. It depends on the facts and the case in
hand falls within the exception mentioned in paragraph 12 in Lakshmi Singh
(supra)."
16. The nature of
injuries suffered by the deceased and the prosecution witnesses have been
noticed by us. They had been caused by lathis and/or jallies. Accused, therefore,
were fully armed with when they came to the place of occurrence. They not only
assaulted the deceased indiscriminately, but the prosecution witnesses were
also not spared. The learned trial judge laid emphasis on the fact that the
injuries on the person of Sheo Ram and Raja Ram had not been explained. We may
notice that Lal singh in his examination-in-chief itself disclosed as under:
"I had a Kamari
with which I used to drive the camel. I had inflicted an injury with Kamari
blow to Raja Ram hitting over his head. One Kamari blow had been given by me to
Sheo Ram. Two- four Kamari blows had been blown by me in the air and the same
might have hit the accused party.
Mr. Sushil Kumar,
however, drew our attention to his denial to the suggestion made to the said
witness, which is in the following terms:
"It is further
incorrect to suggest that Harda Ram and I had caused injuries to Raja Ram and
Sheo Ram."
From the question put
to the said witness, it is evident that two questions were clubbed together
which should not have been permitted by the learned trial judge. The fate of
the said statements must, therefore, be considered having regard to the nature
of the suggestion put to him. It is also worthwhile to notice that Rajbir
(P.W.8) also accepted that Lal Singh had caused injuries to Sheo Ram and Raja
Ram in his self defence. Lal Singh's presence at the spot, therefore, cannot be
denied or disputed. The fact that some incident had taken place also could not
be denied or disputed.
17. It has been
contended that the FIR was anti dated and anti timed.
Such a contention was
raised inter alia on the premise that the first informant got his father
admitted in the General Hospital, Narnaul at about 1.35 p.m.
whereas the FIR was
lodged at about 1.50 p.m. at Ateli having regard to the fact that one has to
take at least half an hour to reach Ateli from the General Hospital, Narnaul in
his own conveyance and also having regard to the fact that Head Constable
Kailash Chand (P.W. 13) reached the hospital at about 5.00 p.m.
The High Court, on
the other hand, opined that by the time the examination of the deceased had
ended which may be at about 2.30 p.m.; the first informant (P.W. 8) must have
reached the hospital as, according to the High Court, it takes about 15-20 minutes
to cover the distance from Ateli to Narnaul.
32 The said
contention cannot be sustained having regard to the fact that by 1.30 p.m. or
1.40 p.m. even accused persons were arrested; they had been produced before Dr.
Goel and they had been examined; even P.W.12 and other witnesses were also
examined.
The FIR might have
been recorded at a later stage. But the information about the occurrence must
have been given by P.W. 8. to the office in-charge of Ateli Police Station
prior thereto. Even a copy of the FIR was received by the Magistrate concerned
at about 10.30 p.m. on the same day. Furthermore, the Investigating Officers
were not cross examined on that point. In any event, it is wholly unlikely that
the FIR was anti-timed and anti-dated. Even assuming that the same was
anti-timed or anti-dated, the fact that an incident had occurred was not
disputed. At least two of the accused persons accepted their presence. The
defence story is that two accused persons had sustained injuries at the hands
of the prosecution witness Lal Singh (P.W.12).
If occurrence of the
incident stands admitted, in our opinion, even if some delay has been caused in
writing of the FIR, the same would not render the entire prosecution case
suspicious.
18. This brings us to
the question as to whether a case for exercise of right of self defence has
been made out.
We have noticed
hereinbefore that the appellants cannot be said to have been in `settled
possession' of the land in question. Furthermore, they came wholly armed,
whereas except Lal Singh who was having a small twig (Kamari), deceased party
were not armed with any weapon. It was not a dangerous weapon. No grievous
injuries could have been caused by use thereof and in fact no grievous injuries
have been suffered by the accused Sheo Ram and Raja Ram.
Appellants herein did
not raise any plea of self defence. According to them, they were not present at
the spot at all. Learned Senior Counsel would contend that Accused No.1 and
Accused No. 6 raised the plea of self defence. The learned trial judge although
accepted the said plea but the same was accepted not with particular reference
to the said accused. All the accused persons did not raise the defence of
exercise of right to private defence. In regard to claim of right of self
defence, the matter may have to be considered from somewhat a different angle.
Accused Nos. 6, 7 and 8 were attributed with assault of Lal Singh and two
ladies, namely, Mamli and Dhankauri.
19. The second part
of the story was not relied upon. Any overt act on their part, thus, having
regard to the fact that the deceased - Harda Ram - had already been assaulted,
there was no evidence against Raja Ram as also accused Nos. 7 and 8 that they
had participated in assaulting the deceased.
The right of private
defence can be exercised provided any occasion arises therefor. The learned
trial judge wrongly held so, on the premise that the appellants were in settled
possession of the property. If they were not, they had no right of private
defence to defend the possession of the property.
They were, thus, the
aggressors being fully armed.
We are not unmindful
of the fact that right of private defence need not be specifically raised. {See
Bishna Alias Bhiswadeb Mahato & ors. vs. State of W.B. [(2005) 12 SCC
657]}.
We may notice that in
Surendra & Anr. v. State of Maharashtra [(2006) 11 SCC 434], this Court
held:
"26. We are not
unmindful of the fact that in all circumstances injuries on the person of the
accused need not be explained but a different standard would be applied in a
case where a specific plea of right of private defence has been raised. It may
be true that in the event prosecution discharges its primary burden of proof,
the onus would shift on the accused but the same would not mean that the burden
can be discharged only by examining defence witnesses.
27. The learned
courts below committed a manifest error of law in opining that the Appellants
had not discharged the initial burden which is cast on them. Even such a plea
need not be specifically raised. The Courts may only see as to whether the plea
of exercise of private defence was probable in the facts and circumstances of
the case.
32. In regard to the
duty of the prosecution to explain the injuries on the part of the accused,
this Court observed:
`78. Section 105 of
the Evidence Act casts the burden of proof on the accused who sets up the plea
of self- defence and in the absence of proof, it may not be possible for the
court to presume the correctness or otherwise of the said plea. No positive
evidence although is required to be adduced by the accused; it is possible for
him to prove the said fact by eliciting the necessary materials from the
witnesses examined by the prosecution. He can establish his plea also from the
attending circumstances, as may transpire from the evidence led by the
prosecution itself.
79. In a large number
of cases, this Court, however, has laid down the law that a person who is
apprehending death or bodily injury cannot weigh in golden scales on the spur
of the moment and in the heat of circumstances, the number of injuries required
to disarm the assailants who were armed with weapons. In moments of excitement
and disturbed equilibrium it is often difficult to expect the parties to
preserve composure and use exactly only so much force in retaliation
commensurate with the danger apprehended to him where assault is imminent by
use of force. All circumstances are required to be viewed with pragmatism and
any hypertechnical approach should be avoided.
80. To put it simply,
if a defence is made out, the accused is entitled to be acquitted and if not he
will be convicted of murder. But in case of use of excessive force, he would be
convicted under Section 304 IPC."
In Satya Narain Yadav
v. Gajanand & Anr. [2008 (10) SCALE 728], this Court held:
"14. As noted in
Butta Singh v. The State of Punjab (AIR 1991 SC 1316), a person who is
apprehending death or bodily injury cannot weigh in golden scales in the spur
of moment and in the heat of circumstances, the number of injuries required to
disarm the assailants who were armed with weapons. In moments of excitement and
disturbed mental equilibrium it is often difficult to expect the parties to
preserve composure and use exactly only so much force in retaliation
commensurate with the danger apprehended to him where assault is imminent by
use of force, it would be lawful to repel the force in self-defence and the
right of private defence commences, as soon as the threat becomes so imminent. Such
situations have to be pragmatically viewed and not with high- powered
spectacles or microscopes to detect slight or even marginal overstepping. Due
weightage has to be given to, and hyper technical approach has to be avoided in
considering what happens on the spur of the moment on the spot and keeping in
view normal human reaction and conduct, where self-preservation is the
paramount consideration.
But, if the fact
situation shows that in the guise of self-preservation, what really has been
done is to assault the original aggressor, even after the cause of reasonable
apprehension has disappeared, the plea of right of private-defence can
legitimately be negatived. The Court dealing with the plea has to weigh the
material to conclude whether the plea is acceptable. It is essentially, as
noted above, a finding of fact."
(See also Ravishwar
Manjhi & Ors. vs. State of Jharkhand [2008 (16) SCALE 45) In Bhanwar Singh
& Ors. vs. State of M.P. [2008 (7) scale 633], this Court held:
38 "51. To put
it pithily, the right of private defence is a defence right. It is neither a
right of aggression or of reprisal. There is no right of private defence where
there is no apprehension of danger. The right of private defence is available
only to one who is suddenly confronted with the necessity of averting an
impending danger not of self creation.
Necessity must be
present, real or apparent.
52. The basic
principle underlying the doctrine of the right of private defence is that when
an individual or his property is faced with a danger and immediate aid from the
state machinery is not readily available, that individual is entitled to
protect himself and his property. That being so, the necessary corollary is
that the violence which the citizen defending himself or his property is
entitled to use must not be unduly disproportionate to the injury which is
sought to be averted or which is reasonably apprehended and should not exceed
its legitimate purpose. We may, however, hasten to add that the means and the
force a threatened person adopts at the spur of the moment to ward off the
danger and to save himself or his property cannot be weighed in golden scales.
It is neither possible nor prudent to lay down abstract parameters which can be
applied to determine as to whether the means and force adopted by the
threatened person was proper or not. Answer to such a question depends upon
host of factors like the prevailing circumstances at the spot, his feelings at
the relevant time; the confusion and the excitement depending on the nature of
assault on him etc. Nonetheless, the exercise of the right of private defence
can never be vindictive or malicious. It would be repugnant to the very concept
of private defence."
39 It was
furthermore observed that it is not in all situations that such a right can be
claimed only because some of the accused persons have suffered injuries even if
they are simple.
20. We have been
taken through the depositions of P.W. 8 and P.W. 12.
P.W.12's presence
stands admitted. P.W.8's presence has been doubted by the learned Sessions
Judge only on the ground that he got his father admitted at 2.30 p.m. The
presence of P.W. 8 - Rajbir, in our opinion, could not have been doubted on
such slender evidence. He was driving the tractor. Accused persons came prepared
to assault the deceased. By the time the first informant could come and
intervene, the entire incident must have occurred as it is stated that the same
took place only for two to two and half minutes.
No suggestion had
been given to any of the prosecution witnesses by the defence that no tractor
was found at the place or it was the deceased who himself was driving the
tractor. P.W. 8 in his evidence categorically stated that he left the tractor
at that place. Furthermore, his evidence, taking a holistic view of the matter,
in our opinion, appears to be trustworthy. He vividly described the entire
incident. He was cross examined on all material points. He had also explained
as to why he did not suffer any injury categorically stating and that too in cross-examination
that by the time he reached all the accused had started running with their
weapons towards their respective houses.
21. There cannot be
any doubt or dispute whatsoever that if two views are possible, the Appellate
Court should not interfere with a judgment of acquittal, but this has many
exceptions.
In State of Punjab
vs. Gurnam Kaur & Ors. [2009 (4) SCALE 343] this Court held:
"18. The
jurisdiction of this court to interfere with a judgment of acquittal is
limited. When two views are possible, a judgment of acquittal should not be
interfered with."
In U.O.I. vs. Bal
Mukund & Ors. [2009 (4) SCALE 606], this Court held:
"41. Furthermore,
we are dealing with a judgment of acquittal. The High Court, for good and
sufficient reasons, had arrived at findings of fact both with regard to
voluntariness of the purported confessions made by the respondents as 41 also
compliance of the mandatory statutory provisions vis-`-vis directions issued by
the Central Government in making search, seizure as also taking of samples for
the purpose of chemical examination having been doubted, we do not see any
reason why we should take a contrary view as it is well-known that the
appellate court would not interfere with a judgment of acquittal only because
another view is possible. On the other hand, if two views are possible, it is
trite, the appellate court shall not interfere."
It is one of those
cases, where two views were not possible.
22. For the
aforementioned reasons, the appeal is dismissed. Appellants are on bail. Their
bail bonds shall stand cancelled. Accused persons are directed to surrender
forthwith to serve out the remaining sentence.
......................................J.
[S.B. Sinha]
......................................J.
[Dr. Mukundakam Sharma]
New
Delhi;
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