A.S. Tripathi, J.@mdashThe Appellants, namely Jagannath, Sant Ram, Kedar, Somaru, Aliyar, Dalsingar, Kalloo, Buruk, Bangur, Hiramaal Lochan, Jhagaru and Mangru, have preferred this appeal against the judgment and order dated 28-10-1978 passed by Sri S.L. Tripathi, the then Special Addl. Sessions Judge, Mirzapur, convicting the Appellants to undergo imprisonment for life u/s 302/149 IPC. Appellants jagannath, Sant Ram, Kedar. Soman, Aliyar and Dalsingar have also been convicted u/s 148 IPC and sentenced to undergo two year''s rigorous imprisonment. Further the Appellants, Kalloo, Buruk, Bangur, Hiramanl, Lochan, Jhagaru and Mangru have been convicted u/s 147 IPC and sentenced to undergo one year rigorous imprisonment. All the 13 Appellants have also been convicted and sentenced to undergo two years rigorous imprisonment under Sections 324/149 and 325/149 IPC and respectively and one year rigorous imprisonment u/s 323/149 IPC. All the sentences Were directed to run concurrently.
2. The prosecution case as disclosed in the first information report, Ex. Ka 2, was that one Ram Naresh was lessee of plot No. 1972 area 10 Bighas, Anirudh was lessee of the same plot for another minjumla area of 10 Bighas and Punal was lessee of the same, plot No. 1972 and another plot no 1973 in respect of minjumla area of 5 Bighas each situate in village Jungle Mohal by virtue of lease taken from Gram Pradhan, Kashinath Singh. It is alleged that all the three lessees were relations of Sankatha Singh (deceased). Sankatha Singh was alleged to be in possession of 30 Bighas land on behalf of those lessees. He used to cultivate the said land on their behalf, According to the prosecution case there was a ''Marai (thatch) belonging to Sankatha Singh on that land.
3. On 26-6-1974 at about 4 P.M. in village Barahi of jangal Mohal Khoria police station Ahraura District Mirzapur, where the aforesaid land was situate, deceased, Sankatha Singh took alongwith him PW 2 Ram Ashrey, PW 4 Mohan, PW 5 Asharfi, PW 6 Adanand and one Sohan and Kamta with a view to give them the said land on Batai (sub-lease). Kalloo PW 1, Ghanshyam and Sadanand had also accompanied them. They all reached that land at about 3 P.M. They were sitting in the Marai and were talking about distribution of the land on Batai. At about 4 P.M. all the Appellants arrived at the scene. It is alleged that Appellants. Jagannath, Sant Ram and Kedar were armed with spear. Appellants, Somaru, Aliyar and Dalsingar were armed with Gandasa and rest of the Appellants were armed with lathis. It is alleged that on the instigation and exhortation of Jagannath all the Appellants started assaulting Sankatha Singh and his companions with their respective weapons. As a result of this attack. It is alleged that Sankatha died on the spot and Ram Ashrey PW 2, Mohan PW 4, Sohan, Asharfi PW 5, and Adanand PW 6 received injuries.
4. FIR of the incident was lodged on 27-6-74 at 3 A.M. at police station Ahraura by PW 1 Kalloo.
5. The Injured persons were taken to Chunar dispensary where they were medically examined by Dr. R.C. Katiyar, PW 14 between 5.45 P.M. to 7.30 P.M. on the next day i.e. 27-6-1974.
Following injuries were found on the person of Sohan:
1. Contusion of the outer side of the left elbow joint and left fore-arm 17 cm � 8 cm.
2. Contusion 10 cm � 2 cm on the left side back.
3. Contusion 10 cm � 2 cm left side back.
4. Contusion 4 cm � 4 cm with abrasion 2 cm � 2 cm on the back.
5. Contusion 13 cm � 2 cm on the right side back.
6. Contusion 12 cm � 2 cm on the right side back
7. Contusion 20 cm � 2 cm on left side back.
8. Contusion 5 cm � 5 cm on the left shoulder joint.
9. Contusion 8 cm � 2 cm on the left leg.
Following injuries were found on the person of Mohan:
1. Lacerated wound 4 cm � 1/2 cm � scalp deep on the head.
2. Lacerated wound 6 cm � 1/2 cm � scalp deep on the right side head.
3. Lacerated wound 4 cm � 1 cm � scalp on the left side head.
4. Contusion 2 1/2 cm � 2 1/2 cm with abrasion 1 1/2 cm � 1 1/2 cm on the left leg.
5. Abrasion 1/4 cm � 1/4 cm on the left leg.
6. Abrasion 1/4 cm � 1/4 cm on the left leg.
Following Injuries were found on the person of PW 5, Asharfi:
1. Lacerated wound 4 cm � 1/4 cm � scalp deep on the left side wrist.
2. Lacerated wound 3 cm � 1/4 cm � scalp deep on the head.
3. Lacerated wound 3 cm � 1/4 cm � scalp deep on the left side head.
4. Lacerated wound 3 cm � 1/2 cm � scalp deep on the left side head.
5. Lacerated wound 1/2 cm � 1/2 cm � bone deep on the right side head.
6. Incised wound 3 cm � 1/4 cm � scalp deep on the right side head.
7. Contusion 10 cm � 2 cm on the right arm.
8. Contusion 8 cm � 2 cm on the right arm.
9. Punctured wound 1/3 cm � 1/3 cm � 1 cm on the right wrist joint.
10. Lacerated wound 2 cm � 1/4 cm � muscle deep between the right index and middle finger.
11. Abrasion 1 cm � 1 cm on the left wrist joint.
12. Linear abrasion 4 cm long on the right shoulder joint.
13. Contusion 10 cm � 2m on the left thigh.
Following injuries were found on the person of Adanand, PW 6:
1. Lacerated wound 2 cm � 1/4 cm � muscle deep on the right side face.
2. Punctured wound 1/4 cm � 1/4 cm � 1/2 cm on the left side face.
3. Contusion 15 cm � 2 cm on the left side back.
4. Contusion 12 cm � 2 cm on the left side back.
5. Contusion 5 cm � 2 1/2 cm with abrasion 2 cm � 1 cm on the left shoulder Joint.
6. Contusion 13 cm � 2 cm on the left arm.
7. Contusion 10 cm � 2 cm on the right elbow Joint.
8. Contusion 7 cm � 2 cm on the right side back.
9. Traumatic swelling 12 cm � 8 cm on the left ankle joint.
10. Traumatic swelling 8 cm � 6 cm on the right ankle Joint.
11. Traumatic swelling 6 cm � 6 cm on the left ankle joint.
Following injuries were found on the person of Sam Ashrey, PW 2:
1. Lacerated wound 7 cm � 1/2 cm � scalp deep on the head.
2. Lacerated wound 5 cm � 1/2 cm � scalp deep on the left side head.
3. Lacerated wound 4 cm � 1/2 cm � scalp deep on the right side head.
4. Lacerated wound 2 cm � 1/2 cm � muscle deep on the right side head.
5. Lacerated wound 1 1/2 cm � 1 1/2 cm � scalp deep on the left side head.
6. Incised wound. 1 cm � 1/10 cm � cartilage on the right ear.
7. Contusion 2 cm � 2 cm on lower lid of the left eye.
8. Incised wound 2 1/2 cm � 1/2 cm � muscle deep on the right arm.
9. Lacerated wound 2 cm � 2 cm � bone deep on the right leg.
10. Traumatic swelling 5 cm � 5 cm on the left ankle Joint.
11. Contusion 2 cm � 2 cm on the right shoulder Joint.
12. Contusion 11 cm � 2 1/2 cm on the back.
X-Ray of Asharfi, PW 5, was done on 5-7-74 by Sri S.R. Bhattacharya, Medical Officer, District Hospital Mirzapur. His radius and ulna were found fractured, as such injuries BOS 7 and 8 were found grievious.
The postmortem examination of the dead body of Sankatha Singh was done by the same Doctor, i.e. Dr. R.C. Katiyar, PW 14 on 28-6-1974 at 10 A.M. and following ante-mortem injuries were found on his person:
1. Punctured wound 1/2 cm � 1/2 cm � bone deep on the left side head.
2. Incised wound 2 cm � 1/2 cm � boos deep on the left side head.
3. Incised wound 4 cm � 1/2 cm � bone deep on the left side head.
4. Lacerated wound 6 cm � 1 cm � brain cavity deep on the top of the head. The brain material was coming out of that injury.
5. Contusion 6 cm � 2 cm. an the left chest.
6. Punctured wound 1 cm � 1 cm � thoracic cavity deep on the left chest.
7. Contusion 8 cm � 2 1/2 cm on the right side abdomen.
8. Contusion 4 cm � 2 cm on the left side abdomen.
9. Contusion 6 cm � 2 1/2 cm on the back.
10. Contusion 20 cm � 2 1/2 cm on the left thigh.
11. Lacerated wound 15 cm � 2 cm � bone deep on the right leg.
The tibia and fabula bones underneath were fractured into multiple pieces.
On internal examination the scalp bone below injury Nos. 2 to 4 was found fractured in multiple pieces. The brain material was found coming out of these injuries. Pericardium below injury No. 6 was punctured 1/2 cm � 1/2 cm through and through. The heart underneath was punctured 1/2 cm � 1/2 cm � cavity deep. The, left chamber of heart was empty its right chamber was partially full. There was 2 1/2 pound clotted and unclothed blood in thoracic cavity. The abdominal wall below injury No. 1 was congested to the extent of 8 cm � 2 1/2 cm. There was 8 cm � 2 1/2 cm congestion of peritoneum below those walls. There was two pound clotted and unclothed blood in the abdominal cavity. There was laceration 5 cm � 2 cm � 2 cm on the outer part of the liver.
6. The postmortem report, Ex. Ka 21, reveals that the death of Sankatha took place due to shock and haemorrhage as a result of ante-mortem injuries No. 2, 3, 4, 6, 7 and 11.
7. Investigation was taken up by PW 13 Ram Gulam Sharma. He reached the spot 27-6-74 at 4 A.M. He prepared the inquest report of the dead body of Sankatha Singh, deceased. He took in possession blood stained clothes of Sankatha Singh. He also took in possession blood stained and plain earth and kept them in separate sealed containers. He also inspected the spot and prepared the site-plan.
8. Thereafter the investigation was taken up by PW 12 Sri Gorakh Nath Singh Sub-Inspector. He recorded the statement of accused and submitted chargesheet.
9. The prosecution in support of its case examined sixteen witnesses. PW 1 Kalloo Singh, PW 2 Ram Ashrey, PW 3 Sant, Narain, PW 4 Mohan, PW 5 Asharfi and PW 6 Adanand are witnesses of fact and they have supported the prosecution story.
10. PW 7 Khwaja Wahajuddin is formal witness, who had collected some articles and deposited the same in Sadar Malkhana, PW 8 Girja Shanker Singh, Constable, had taken the dead body of Sankatha Singh in sealed condition to mortuary. PW 8 Dr. S.R. Bhaitacharya had taken X-ray of the injuries of Asharfi. PW 10 Josheph Mathew is the Clerk In the office of Chief Medical Officer, Mirzapur. He had deposited four bundles of articles in office of the Chief Medical Officer, kept the same In wooden box and had put medico legal seal thereon and the same were sent to Chemical Examiner for report.
11. PW 11 Constable Ram Shiromani Dubey had also taken three bundles in sealed condition and deposited the same in Malkhana of the police station. PW 12 Gorekhnath Singh, Sub-Inspector, had conducted part of the investigation of the case and had submitted charge-sheet. PW 13 Sri Ram Gulam Sharma Sub-Inspector, had conducted the earlier part of the investigation and gave all the details of the same. PW 14 Dr. R.C. Katiyar had examined the injured persons and prepared injury reports and has also proved the same during evidence He also conducted the postmortem examination of the dead body of Sankatha Singh and proved the post-mortem report, Ex Ka-21. PW 15 Sarju Rai, Constable, had taken four bundles of sealed articles and deposited the same In the office of Chief Medical Officer, Mirzapur, PW 16 Ram Darash Singh, Constable, had prepared chik FIR and made entries in the general diary.
12. The Appellants have denied the prosecution case and have pleaded not guilty. All the accused-Appellants are residents of village Ban Imaliya polios station Ahraura district Mirzapur. Twelve Appellants belong to same caste of Gareria (shephard) end only the Appellant, Butuk, was Harijan by caste. He is said to be the ploughman of the Appellant, Jagannath.
13. The Appellants had alleged that they were in possession of 30 bighas land and they had constructed their Maral etc. on that land. The Appellants had sown crops of Sawan on that land. Deceased, Sankatha Singh and his companions came on that land and took forcible possession of that land. They had also taken bullocks and yokes alongwith them. They started cultivating and ploughing the land. They damaged the Maral of the Appellant, Jagannath. The Appellants resisted this high handedness of Sankatha Singh and thereupon Sankatha Singh abused them and his companions wielded lathis causing injuries to the Appellants, Jagannath, Kedar Somaru. Aliyar and one Birbal, brother of Kedar the Appellants used their lathis etc, in self defence. It is further alleged that Dal Singar, Buruk, Lochan, Magaru were not present on the spot.
14. The Appellants, jagannath and Birbal were medically examined by Dr. D.D. Tripathi DW 1, the Medical Officer of District Hospital. Mirzapur on 1-7-1974 at 7 AM and 7.20 A.M respectively.
Following injuries were found on the person of Jagnnath vide injury report Ex. Kha 1:
1. Contusion 7.5 cm � 2 cm on the outer aspect middle of the right arm.
2. Contusion 6 cm � 2 cm on the top of the left shoulder.
3. Abrasion 4 cm � 4 cm on the left scapula.
4. Contusion 8 cm � 2.5 cm on the right shuttle region transversely.
5. Contusion in the swelling 6 cm � 4 cm on the outer aspect upper part right leg.
6. Traumatic swelling outer aspect left ankle 5 err � 5 cm.
Following injuries were found on the person of Birbal:
1. Contusion 7 cm � 2 cm on the top of the right shoulder.
2. Abrasion 4 cm � 4 cm on the left arm at its middle and outer aspect.
3. Contusion with swelling 5 cm � 4 cm an the dorsum, middle of the left fore-arm.
4. Contusion 7 cm � 4 cm obliquely on the back of the left lower chest.
5. Contusion 6 cm � 2 cm on the front middle of the right thigh.
6. Traunatic swelling with abrasion 8 cm � 4 cm on the front, upper part of right leg.
7. Contusion 4 cm � 2 cm on the front of the left ankle joint.
15. All the injuries were found simple Duration was found to be 4-5 days.
16. The Appellant, jagannath, claims to have sent information of the incident to the Station Officer, Ahraura Superintendent of Police and District Magistrate, Mirzapur on 27-6-1974 under certificate of posting, Ex. Kha 4 and kha 5 respectively Exs. Kha 6 and Kha 7 pertained to copy of the information sent to the District Magistrater and Suprintenedent of Police respectively. They bear the signature of appllent, Jagannath. In support of defence and also to prove the said documents DW 2 Sankatha Prasad, was examined. He was Clerk of Sri Virendra Kumar Sri vastava Advocate.
17. The learned Addl. Sessions Judge after assessing the evidence on record adduced by the side of prosecution and also the evidence adduced by the defence came to the conclusion that the oharges against the Appellants were proved and they were accordingly convicted and sentenced, as mentioned above. Against the said judgment of the Addl. Sessions jugde the present appeal has been preferred by the Appellants.
18. We have heard learned Counsel for the parties at length and perused the record of the case.
19. In this incident Sankatha Singh died on the spot. PW 4 Mohan, PW 5 Asharfi and PW 6 Adanand as well as PW 2 Ram Ashrey and one Sohan had received injuries.
20. The injuries on the defence side were not admitted by the prosecution. It was specificaily denied that any body was injured on the side of the accused.
21. The place where the incident took place is a large piece of land near Jungle. The entire area known as jungle mohal is in about 14 square miles. It contains a number of jungles The place where the incident took place is known as Jungle Khoria. It has come in evidence that Abadi of jungle mohal was known as ''Barahi'' and was situate at five miles from the scene of occurrence The dispute was regarding possession of entire land of 30 Bighas situate in that village. The incident is not disputed and the same is also established from the medical evidence it is also not disputed that in this incident Sankatna Singh had lost his life and five other persons were injured on the prosecution side. The Appellants had taken the plea of self defence of property and person.
22. The said 30 bighas of land lies partly in plot No. 1972 and partly in plot No. 1973. This forms a compact area. The disputed land is bounded by a hillock on the northern and southern side. It has also come in evidence that Sankatha Singh deceased was resident of village Bhendi. He had some cultivation in village Bhendi and Khamawa Jamati, These villages were at a considerable distance from the place of occurrence. Bhendi was at a distance of ten miles and Khamawa Jemsti was four miles from the place of occurrence. It has further come in evidence that Ram Naresh, Anirudh and Funai were residents of village Keshopur, Sheopur and Majhara respectively. They are situate at a distance of 14 miles from the scene of occurrence.
23. PW 1, Kalloo Singh is the resident of village Bhendi and PW 2 Ram Ashrey is the resident of village Khamawa Jamati. Witness Mohan is the resident of village Pauni and PW 5 Asharfi is the resident of village Sonbaras. The witness, Adanand, who is the brother of Asharfi, is also the resident of same village, Sonbarsa These villages are situate at a distance of about ten miles from the spot.
24. Kamta is the brother of Mohan. PW 4 and Sohan The presence of Kamta on the spot is not challenged by the defence. PW 1 Kalloo and PW 3 Sant Narain were not injured in the incident but their presence is not challenged PW 1 Kalloo Singh was related to Sankatha Singh, deceased. The eye witnesses claim to have known the Appellants from before, who used to graze their cattle in that land The Appellants belong to-village Ban Imeliya and all of them were known to the witnesses since long.
25. The first question arises regarding title and possession over the disputed lard on which the incident was alleged to have taken place. We propose to examine this point on which documentary and oral evidence have been adduced by both the parties.
26. Ex. Kha 30, Kha 31 and Kha 32 are the extracts Iqrarnama Register of Jungle Mohal for the year 1965 These documents show that the lease was granted to Ram Naresh, Funai and Anirudh in respect of the disputed land by one Kashi Nath Singh, Pradhan. They had entered in possession over their respective portions of the land in the year 1381 Fasli to 1383 Fasli vide Exa. Ka 33, Ka 34 to Ka 36, Ex. Ka 37 is the order dated 30-1-1975 which shows that mutation order was passed on 26-9-1972 in favour of Funai against which the Appellant, Jagannath. had filed a revision application which was rejected on 19-10-4973.
27. The Appellant, Jagannath, had obtained a decree u/s 229-B of the U.P. Zamindari & Land Reforme Act in respect of plot No. 1973 area tea Bighas from the court of Judicial Officer on 4 3-1974 vide Ex. Kha 13 and Kha 17 and decree Ex. Kha 14. Ex. Kha 15 is the inspection note dated 27-1-1974 recorded by the same court. It shows that the Appellants had a Maral inside the disputed land of ten Bighas. Ex Kha 28 is the extract of Khataunl for the years 1381 Fasll to 1383 Fasll, which shows that mutation was made in favour of the Appellants in respect of the said land. Exs. Kha 42, Kha 35, Kha 31, Kha 38 are the extracts of Khataunl for the years 1358 Fasll, 1374 Fasll, 1378 Fasll and 1386 respectively. In Ex Kha 42 the number of the land was given as 1973/2. in Ex. Kha 38 it was described as plot No. 1973/4. in Exs Kha 35 and Kha 31 it has been described as plot No. 1973/3. Further the Appellants had obtained a decree, Ex Kha 45 on 4-3-1974 for plot No. 1978 minjumla area 15 bighas It has also been proved on record that in respect of plot No. 1972/2 area 7 bighas, the Appellant, Kedar, and his brother Birbal, had also obtained a decree an 24-2-1970 against the Gaon Sabha who Judgment is Ex. Kha 26 They were recorded in possession over plot No. 1972/1 area 7 1/2 bighas in 1376 Fasli vide Khasra, Ex Kha 33. They were alone entered in possession in the year 1378 Fasli for five bighas of land on the same plot vide Ex Kha 30 and Ex Kha 32. Further in Khasra of 1381 Fasli to 1383 Fasli it was directed that their names be entered against plot No. 1972 minjumla 5 bighas each after striking out the name of Funai vide Ex Kha 41. Six bighas of land of plot No. 1973/1 was recorded in the same of somaru, Appellant, vide Ex. Kha 30 and Kha 37 Khasra for the year 1378 and 1380 Fasli respectively. It is further evidenced from the record that 10 bighas of plot No. 1973/3 was recorded in the name of Aliyar, Appellant, vide Khasra, Ex Kha 36 and 34. It is further noteworty that in Khasra of 1373 Fasli Ex. Kha 35 an area of 14 bighas of that plot was entered in the name of Aliyar, Appellant. Further in Khasra of 1378 Fasli 10 bighas of land of plot no 1973/2 recorded in the name of Aliyar and his brother, Kalloo. Appellant vide Ex. Kha 30. Five bighas land of the same plot was entered in the name of Aliyar in Khatauni, Ex. Kha 42 for the year 1381 to 1383 Fasli.
28. These documents clearly show that the Appellants were recorded in possession over the land of 10 bighas of plot No. 1973 and 7 bighas of plot No. 1972. This area was disputed on which the incident had taken place.
29. The documentary evidence adduced by the prosecution was net sufficient to disclose the title and possession of Sankatha Singh over the disputed land. On the other hand the Appellants have riled overwhelming documentary evidence to establish their possession over 17 bighas of land of plots Nos. 1972 and 1973, which was disputed and on which the incident had taken place.
30. However, in the oral evidence prosecution has examined PW 1, Kalloo Singh alone. He was a relation of the deceased, Sankatha Singh PW 1 Kalloo Singh stated that some time Sankatha Singh used to cultivate the land in dispute and some time he used to cultivate the same through Bataidars. No Bataldar was produced to support the contention on this point. Further Ram Naresh, Anirudh and Funai in whose favour Patta is alleged to have been granted also did not come to support on this point.
31. On the other hand PW 6, Adanand, has admitted that the Appellants, who are Garerias, claimed this land to be their own
32. Further PW 1 Kalloo, has admitted that in mutation case Ram Naresh, Birbal filed objections that 10 bighas of land of plot No. 1973 belongs to him. The Appellant, Kedar, had filed objection in that case also. In mutation case of Funai the Appellant, Jagannath had filed objection that 10 bighas of plot No. 1973 belonged to him. The Appellants were claiming 30 bighas of land of plots Nos. 1972 and 1973.
33. After examining the documentary and oral evidence we have found that the Appellants were in actual possession over the disputed land on which they had built a Maral which was established by documentary evidence on record
34. Now the question arises as to whether the Appellants bad a right to inflict injuries upon the witnesses and to cause death of Sankatha Singh in self defence of property and person.
35. PW 1 Kalloo and PW 2 Ram Ashrey have stated that the accused-apnallaat, Jugannath thrust his spear inside the chest of Sankatha Singh who died on the spot and the Appellant, Somaru had given Gandasa blow en his head. However, this specific statements were not given la their statements u/s 161 Code of Criminal Procedure during investigation. Also this specific allegation against Jagannath and Somaru, Appellants, was not given in the first information report. Further, the eye witnesses also had not spoken that those two Appellants had actually given spear and Gandasa blows respectivcly which caused the death of Sankatha Singh.
36. Exs. Kha 6 and Kha 7, copies of the applications sent to District Magistrate and Station Officer reveal that presence of Appellants, Jagannath, Kedar, Somaru and Aliyar was admitted. Besides that the presence of Bribal was also admitted. However, the presence of rest of the Appellants was not admitted but the same is proved by the proseontion evidence. The prosecution witnesses are consistent en the point that all the Appellants had participated in this occurrence.
37. The first information report was lodged eleven hours after the incident. The distance of the police station was tea miles from the place of occurrence, but the delay has been explained by the fact that all the way it was jungle and it took a lot of time to travel through that jungle. After the Incident the family members of Sankatha Singh were brought en the spot and only then the people present there could go to lodge the first Information report.
38. It is further noteworthy that the Appellants had taken the plea that they were also Injured in this incident. They could not ledge the first Information report at the police station en account of the fear of Sankatha Singh and his men. They had seat application through pestal certificates, Ex Kha 3 and Kha 5. Copies of the application sent are Ex. Kha 6 and Kha 7. They have proved sending of this application by examining DW 2 Sankatha Prasad The fact established en record was that the Appellants tried to send application through certificate of posting to the District Magistrate and Superintendent of Police, Mirzapur. They did not go to police station to ledge the report. They also did not get themselves medically examined same day by any doctor. In the way there was pispen--saries at Chunar and Ahrsura They only got themselves medically examined after five days of the occurrence at Mirzapur by Dr. D.D. Tripathi who found some minor injuries on their persons. Ali the injuries on the person of Jagannath and Birbal were examined five days after the incident on 3-7-1974. The delay of being examined medically by the Appellants was not explained. All the injuries were simple. Dr. D.D Tripathi admitted that the said Injuries on the defence side could be self inflicted It Is also noteworthy that there was a vast disproportion between the injuries on the prosecution side and the injuries alleged to have been caused on the defence side.
39. In the applications, Ex. Kha 6 and Kha 7 it was mentioned that the Appellants, Kedar and Somaru and Aliyar were also injured but they were not medically examined.
40. Those injuries were not caused by any deadly weapon and were simple and could be self inflicted In view of the fact that these injuries could be self inflicted and that they were medicaly examined after five days, clearly shows that they were manufactured afterwards just to create a point of self defence as such we find that no case for self defence of person is made out by the Appellants in this case. On the other hand the evidence adduced by the prosecution was consistent and clear that all the accused-Appellants suddenly arrived at the scene of occurrence and started assaulting Sankatha Singh and his companions who were having talks and conversations to distribute the land in dispute on Batai Nothing has been suggested that Sankatha Singh and his men ever attacked the Appellants and assaulted them in this way the Appellants were not apprehending any grievious hurt from the side of prosecution it has also not come in evidence that Sankatha Singh and his men were armed with any deadly weapon at that time As such there could not be any apprehension for the Appellants from the side of Sankatha Singh and his men to cause grievious hurt.
41. Now remains the plea of the Appellants regarding the right of private defence of property. It is proved on record, as discussed above, that the Appellants were recorded in possession over the disputed land for a number of years and they had their Maral over the disputed land. This fact is established by the over whelming documentary evidence on record. As such we find that the Appellants certainly had a right of private defence of property.
42. Now we have to ascertain as to what extent they could cause injuries to other side in self defence of property.
43. According to the prosecution witnesses no body was armed on the side of prosecution. However, it was admitted by PW 4, Mohan, that in jungle nearby tigers, bears and jungle pigs were Inhabiting in and out side the jungle Even if this fact was there, It could not be said by any evidence or circumstances that the prosecusion side was fully armed with weapons like lathis, spears etc Further, there is nothing to suggest that the prosecution side had attacked the Appellants. PW 6 Adanand has admitted that he had an umbrella at that time and bad placed it inside the Maral. The Appellants have taken a plea that prosecution side started ploughing the disputed land with the help of ploughs. It was mentioned in the applications, Ex Kha 6 and Kha 7 that Sankatha Singh and his companions came inside the Maral wish a view to take forcible possession over the disputed land. But it was not mentioned In the said application that they started ploughing and cultivating the land. The Investigating Officer did not find any sign of cultivation or ploughing on the spot.
44. PW 2 Ram Ashrey, however, stated that Shyam Lal, the ploughman of Sankatha Singh had come on the spot at 5 p.m alongwith certain persons including the wife of Sankatha Singh and other collaterals for village Khamava Jamati and Bhendi. This fact established that the ploughman of Sankatha Singh, however, was not present at the time of occurrence. He had come only after the occurrence enquiring for the whereabouts of Sankatha Singh.
45. PW 5 Asharfi stated that on his way to hospital he went on foot upto the river and thereafter on the tractor of Sankatha Singh. This also indicates that the tractor of Sankatha Singh was not brought on the spot. It was taken from across the river near his village Khamava Jamati It is noteworthy that the persons who had gone alongwith Sankatha Singh to take the land on Batai were residents of different villages situate at a considerable distance. The area of Jungle Mohal was a large area. The village Abadi of Barahi itself was situated at 5 miles from the place of occurrence, PW 3 Sant Narain is the resident of village Jungle Mohal and bis village was situate ten miles from the place of occurrence. All these persons belong to different villages and were very much connected with Sankatha Singh and as such it could be said that they had gone alongwith Sankatha Singh to take possession over the land. They would have gone with a view to have some land on Batal to be given by Sankatha Singh.
46. It has also come in the statement of PW 2 Ram Ashrey and PW 13 Ram Ghulam Sharma, the Investigating Officer, that southern and western portion of Marai was damaged. But it was tried to be explained that the damage took place when the Appellants started attacking and the prosecution side, took shelter in Marai and in that melle some part of Marai was damaged. The allegation of the Appellants that entire Marai was damaged by Sankatha Singh and his men, however, did not find support from the evidence on record. Also this fact was not mentioned in the application, Ex Kha 6 and Kha 7 that damage done to Marai by Sankatha Singh and his men. The only alteration was that Sankatha Singh and his men came on the spot with Funal, Anirudh and other outsiders with a view to distribute the land on Batal and to take forcible possession There is nothing on record to show that Funai, Anirudh were also present.
47. It has come in evidence that about ten persons were alongwith Sankatha Singh, deceased, Sankatha Singh was mercilessly beaten which resulted in his death and five persons were injured. The injuries on the side of defence were simple and could have been self inflicted as admitted by the Doctor.
48. What has come in evidence was that the disptued land was in possession of the Appellants. They had a Maral on that land. Sankatha Singh alongwith his men went to that Mara! and was talking to the persons to whom the land was to be distributed on Batai. Sankatha Singh and his men had not started ploughing or cultivating the land. They had not done any overt act to take forcible possession over the same. They were simply sitting and talking about the distribution of land on Batai and when they started damaging the Marai, the Appellants attacked.
49. Thus la view of what has been discussed above, It is manifest that the disputed land was in possession of the Appellants. Sankatha Singh and his men had gone there with a view to distribute the land on Batai. Sankatha Singh had lost his claim in revenue courts and the Appellants were recorded over this land in revenue papers. When Sankatha Singh and his men went on the spot and took their seats In the Marai and started talking about distribution of the land on Batai, then the Appellants came on the scene and found prosecution side sitting and talking for distribution of the land, attacked them. In this process Sankatha Singh was killed and five persons were injured on the prosecution side. The question arises as to whether the Appellants had right of private defence of property to the extent of causing death of Sankatha Singh and also causing a number of injuries to five other persons. We have already discussed earlier and found that the Appellants were recorded in possession over the disputed land. Sankatha Singh had lost his claim in revenue courts. In this view of the matter we are of definite opinion that the Appellants certainly had a right of private defence of property at the time of occurrence. The question remains as to whether they had right of defence of property and caused the death of Sankatha Singh inflicting a number of injuries to five other persons or they had exceeded the right of private defence of property in the circumstances of the case.
50. We have already held earlier that the Appellants were in possession of the disputed land. They were recorded in revenue papers. They have also won the case in revenue courts. They have also obtained decree in their favour although exparte. The Appellants have claimed that they had constructed their Marai on the disputed land and Sankatha Singh alongwith his companions came to demolish the Marai, The trial court has erred in holding that Marai belonged to Sankatha Singh. When the Appellants were in possession of the land as established on the record by documentary evidence, there was no occasion for Sankatha Singh to raise Marai on that land and put in possession of that Marai. This finding of the court below is against the record. The prosecution witnesses on this point could not be relied upon, that Marai belonged to Sankatha Singh In this way we find that since the Appellants were in possession of the land having a Marai over the same were entitled to defence of property.
51. From the evidence on record we find that Sankatha Singh and his men while entering upon the deputed land trying to distribute the land on Batal to others and in that process damaging a part of Marai were committing criminal trespass on that land, as defined u/s 441 IPC.
52. We have already held that the Appellants were entitled to use force in right of private defense of their property as provided u/s 97 (Part-II) of the Indian Penal Code.
53. We further find that although the Appellants bad a right to voluntarily causing injuries to the prosecution side to defend their property against a criminal trespass, yet they had cot right to voluntarily cause death of Sankatha Singh.
54. it has come in evidence that Sankatha Singh was mercilessly beaten A large number of injuries were inflicted on his person. He was inflicted with punctured wound & incised wound. A spear was thrust in his chest. Although there Is no positive evidence for specifying as to who Inserted spear in his chest or caused incised wound and which Injury was inflicted by which Appellant, yet it is clearly established that the Appellants bad inflicted a number of injuries including two punctured wounds and three incised wounds A spear was inserted in his chest. Five other persons also received injuries in this process. In this way we find that the Appellants had used excess force for defending their property.
55. We earlier found that the Appellant�s side had adduced some evidence to show that they had also received some injuries by lathis. But we have held earlier that Injuries upon the person of the Appellants were examined after five days of the occurrence and the doctor has admitted that they could be self inflicted In this way the injuries on ''the side of Appellants were discarded by the trial court on those grounds. We, however agree with the findings of the trial court on this point that injuries on the side of Appellants were simple and minor in nature. They could be self inflicted and as admitted by the doctor it creates doubt that the Appellants did not get their injuries examined for five days. Any way the fact remains that Sankatha Singh and his men had committed criminal trespass upon the land being in possession of the Appellants and while they started damaging the Marai then the Appellants appeared on the scene and used force in defence of their property. We have already held earlier that force used by the Appellants was excessive.
56. In the circumstances of the case we find that the Appellants had no right to defend their property against criminal trespass to the extent of voluntarily causing the death of Sankatha Singh However, It could extend, subject to the restriction as mentioned in Section 99 of the Indian Penal Code, to cause injuries only.
57. Section 104 of the Indian Penal Code defines this right, which is quoted below:
104--When such right extends to causing any harm other than death:--If the offence, the committing of which, or the attempting to commit which occasions the exercise of the right of private defence be theft, mischief, or criminal trespass, not of any of the descriptions enumerated In the last preceding section that right does, not extend to the voluntary causing of death but does extend, subject to the restrictions mentioned in Section 99 to the voluntary causing to the wrong-doer of any harm other than death.
58. We visualise the situation in which the incident in question had taken place. The disputed land was a tract, out of which the Appellants claimed to be in possession of certain ureas roughly about 20 Bighas they established their Marai on the same. They were cultivating this land for quite some time. They were also recorded in revenue papers, they has obtained decree although exparte on this very land. On the date of occurrence the Appellants were certainly in possession and his fact is established on record. Sankatha Singh, deceased, alongwith his men came on the spot to distribute the lard on Batai taking possession by force in this process they were distributing and bifurcating the disputed land in different parts and allotted to different persons who were Present on the spot. The moment in this process they started damaging the Maral the Appellants who belong to nearby village appeared on the scene of occurience and in this heat of passion they used their weapons driving out Sankatha Singh and his men, Sankatha Singh received injuries and died on the, spot. The other Injured persons managed to escape. After the incident the Appellants also ran away seeing Sankatha Singh dead.
59. The situation, as it was, we find that the Appellant had inflicted Injuries in right of private defence of their property but they had exceeded in using force beyond proportion. We also find that force was used without premeditation. In the circumstances of the case the Appellants also do not appear to have any intention before hand to cause the death of Sankatha Singh or to do more harm than what was necessary in the circumstance. Sankatha Singh had assembled there with nine-ten more persons. Naturally they must have come with some arms like Stick lathis to take possession over the land and also demolish the Marai In this process after seeing their criminal treaspass the Appellants had appeared and used their weapons like spear, Gandasa and lathis. It was a case of exceeding the right of private defence of property beyond proportion. Therefore, we are of definite opinion that it was not a case of murder but it was a case of culpabla homicide not amounting to murder as defined in Exception. 2 of Section 300 of the Indian Penal Code.
60. Thus, we find that the Appellants were guilty for committing culpable homicide not amounting to murder of Sankatha Singh by clusing such bodily injuries as were likely to cause death In this way, the Appellants are guilty u/s 304 Part (1) of the Indian Penal Code.
61. The charge u/s 302 IPC is, however, not proved.
62. We also find that when Appellants appeared on the scene to defend their property, they were within their rights and as such there could be no unlawful assembly till they started exceeding the right of private defence The moment they started exceeding the right of private defence in causing death of Sankatha Singh and Inflicting a number of injuries upon other persons, their assembly became unlawful. As such in our opinion the charges under Sections 147, 148 IPC were clearly made out The trial court has rightly convicted them under the aforesaid Sections 147 and 148 IPC as mentioned above. We do not find any ground to interfere with the judgment of the trial court on there points.
63. The trial court has only erred In rejecting the plea of the Appellants for their right of private defence of property, although they had exceeded the same and as such were guilty u/s 304 (Part I) of the Indian Penal Code road with Section 149 IPC.
64. From the facts established on record and circumstances of the case and in view of the fact that the Appellants had a right of defence of property, the injuries caused to other persons could be justified under the provisions of Section 104 IPC. As we have already held that Sankatha Singh and his men had come on the disputed land which was in possession of the Appellants and starred damaging Marai an 1 were taking steps to distribute the land on Batai amongst his own men who were present on the spot, causing of Injuries to other persons by the Appellants is protected under the provisions of Section 104 IPC As such we find that no offence under Sections 323/140, 324/149 and 325/149 IPC is made out against the Appellants and they are accordingly acquitted of those charges.
65. However, the assembly became unlawful the moment the Appellants exceeded the right of private defence by causing the death of Sankatha Singh by inflicting certain injuries and inserting spear in his chest and giving Gandasa blows and as such the offences under Sections 147 and 148 IPC are proved and the trial court has rightly convicted them under those sections.
66. We accordingly allow the appeal In part. We acquit the Appellants u/s 302 read with Section 149 IPC and instead we convict all the Appellants u/s 304 (Part Is IPC and sentence each of them to undergo rigorous imprisonment for seven years, which will meet the ends of Justice.
67. The conviction and sentence recorded by the trial court against the Appellants, Jagannath, Sant Ram, Kedar, Somaru Aliyar and Dalsingar u/s 148 IPC sentencing to undergo two years rigorous imprisonment and convicting Appellants, Kalloo Buruk, Bangur, Hiramani, Lochan, Jhagroo and Mangroo u/s 147 IPC and sentencing them to under-go one year rigorous imprisonment arc maintained.
68. The aforesaid sentences shall run concurrently.
69. The Appellants are on ball Their bail bands and surety bonds are discharged. They shall be taken into custody to serve out the sentences awarded to them as above.
