Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 581 OF 2007
RAM PAT & ORS. … APPELLANTS
Versus
STATE OF HARYANA … RESPONDENT
J U D G M E N T
S.B. Sinha, J.
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
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
th
alias Manoj had purchased 1/36 share of the right of the owners in the land
measuring 264 kanals, 12 marlas comprised of Khewat No.10, Khatauni
th
No.69 mustkil and Killa No.24/27 and 1/48 share of 37 kanals 8 marlas of
land by reason of a deed of sale dated 7.5.1993. They are said to have
th
purchased 1/18 undivided share in the land measuring 264 kanals 12 marlas
th
and 1/24 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 ½
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 ½ 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 ½ cm x ½ cm on
the right leg, inner side. ½ 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 ¼ 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 ½ cm
skin deep.
9
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 ½ 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 ½
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.
12
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
rd
posterior surface of the left arm middle 1/3
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
13
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
14
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
are 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
18
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
19
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 they
have 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,
24
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
25
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
28
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:
29
“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
30
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
31
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.
33
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
34
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:
35
“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.
36
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
37
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
40
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-à-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;
May 12, 2009