Important Point
High Court was not right in overturning finding of trial Court that complainant party was in possession of land and had sown millet crop on the date of incident and accused party trespassed into that land fully armed with a determination to cultivate it and for that purpose thwart any attempt made by complainant party to disturb such cultivation.

Headnote:Indian Penal Code, 1860-Sections 302, 302/149, 148, 448 and 323-Offences under-Eight persons tried-Trial Court convicted five-High Court reversed and modified the convictions applying right of private defence on criminal trespass-(IPC Sections 441 r/w 97, 103)-Whether correct? (No)-High Court reversed and order of trial Court restored.
       Held : According to the High Court it were the accused who were in possession of the land and were ploughing the same on the date of occurrence and that the complainant party was the aggressor. High Court said the trial Court erred in holding that it was the complainant party which was in possession. Judgment of the High Court does not at all refer to the evidence produced by the prosecution on the basis of which the complainant party claimed ownership and possession. It would, therefore, appear that the appreciation of the evidence on the question of the possession was one sided. High Court was not examining the conduct of Kishan Singh. Admittedly on the basis of the ex-parte decree mutation of the land was entered in the name of Kishan Singh. Revenue records of Jamabandi and Khasra Girdavari showed that it was Kishan Singh who was in possession of the land and was cultivating the same. High Court has not referred to the finding of the trial Court that one month before the date of the incident the complainant party had sown millet on the land which was growing at the time the accused were ploughing the field. On one hand there were documents from the revenue records of the village filed by the prosecution which showed possession of the complainant party on the date of the incident and there was other set of revenue record filed by the accused which showed that as far back in 1975 it were the accused who were in possession of the land. We have not understand the logic of the High Court judgment in not considering the evidence filed by the prosecution as to the possession of the land by the complainant party. (Para 5)
       In our view High Court was not right in over-turning the finding of the trial Court without proper consideration of evidence on record that it was the complainant party which was in possession of the land on the date of the incident and that the accused trespassed into that land fully armed with fire arms and lathis with the object of killing any one who would obstruct them in their design of taking possession of the land. In such circumstances the defence put forward by the accused that they were acting under the right of self defence cannot be accepted. The accused party was fully armed. When Shiv Ram and Vijay Kumar went to the land, they were unarmed. They found the accused were already ploughing the land. When Shiv Ram questioned them as to what they were doing he was fired upon by Makhan and Gokula and other accused showered lathi blows on him and that on Vijay Kumar. (Para 8)
       Though there would be right of private defence under Section 97 IPC when offence of criminal trespass or attempting criminal trespass is committed, under Section 103 IPC it is only in the case of house trespass that right of private defence can extend to causing death. That is not the case here. On the assumption that it was the accused party which was in possession of the land the complainant party could not have said to have committed or attempted to have committed offence of criminal trespass. Both Shiv Ram and Vijay Kumar were unarmed. High Court has not reached any finding on the assumption, which were are drawing, if the complainant party could be said to have committed or even attempted to have committed criminal trespass. (Para 10)
       There is nothing to show that Shiv Ram and Vijay Kumar entered upon the land in question with the intent to commit an offence or to intimidate insult or annoy the accused party. (Para 11)
       State of Law is explicit. In this view of the matter the High Court was not right in its conclusion. The judgment of the High Court cannot be sustained either in law or on the facts of the case. We, therefore, allow the Criminal Appeal filed by the State, set aside the judgment of the High Court and restore that of the trial Court. The result is that Makhan and Gokula are convicted under Section 302 IPC and each of them sentenced to undergo imprisonment for life and a fine of Rs. 500/- and in default of payment of fine to undergo further rigorous imprisonment for six months. Natthi, Karan Singh and Ram Bharosi are convicted for offence under Sections 302/149 IPC and are sentenced to imprisonment for life and a fine of Rs. 500/- each and in default of payment of fine to undergo further rigorous imprisonment for six months. All the accused respondents, namely, Gokula, Makhan, Natthi, Karan Singh and Ram Bharosi are further convicted for offences under Sections 148, 447 and 323 IPC and sentenced to undergo rigorous imprisonment for one year, six months and six months respectively. The substantive sentences shall run concurrently. Bail bonds of Makhan and Gokula are cancelled. They shall be taken into custody forthwith. All the five accused-respondents shall undergo their respective sentences. The appeal, filed by Makhan and Gokula is dismissed. (Para 15)
       (ii) Indian Penal Code, 1860-Sections 300 Expl. 2 and 302-Culpable homicide not amounting to murder and murder-Plea that instant case was culpable homicide and not murder-Whether acceptable? (No).
       Held : It was then submitted before us that in any case it could a case of culpable homicide and not murder falling under Section 300 IPC. Explanation (2) of Section 300 is as under :-
       “Explanation 2.-Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.”
       In our opinion this would not apply as from the findings on record it is clear that it was not a case where the accused were exercising right of private defence without premeditation, and without any intention of doing more harm than was necessary for the purpose of self-defence. The accused were there fully armed with premeditation to cause death and it could not be said that they did not have the intention of doing more harm than was necessary for the purpose of private defence. Clearly use of deadly force was not justified merely to expel Shiv Ram and Vijay Kumar, alleged trespassers. It was nowhere the case of the defence that there was no other way of getting them out of the land. The occasion certainly did not warrant any action of self-defence. (Paras 12 & 13)

Judgment

D.P. Wadhwa, J.-We condone delay in SLP (Crl.) No. 2625 of 1998 and grant leave to appeal.

2. We heard both the appeals together.

3. State of Rajasthan is aggrieved by the judgment dated May 1, 1996 of the Division Bench of the Rajasthan High Court (Jaipur Bench) for two reasons : (1) acquitting Natthi, Karan Singh and Ram Bharosi of offences under Sections 302/149, 149 and 447 Indian Penal Code (IPC for short) though maintaining their conviction for offence under Section 323 IPC but reducing their sentence to the rigorous imprisonment already undergone by them; and (2) acquitting Makhan and Gokula of charges under Sections 302, 148, 447 and 323 IPC and instead convicting each of them for offence under Section 307 IPC and sentencing them to undergo rigorous imprisonment for seven years and to a fine of Rs. 2000/- and in default to undergo further rigorous imprisonment for six months. Gokula and Makhan have appealed against the same very judgment against their conviction and sentence.

4. Additional Sessions Judge, Bayana (Bharatpur), who tried eight persons, by judgment dated June 18, 1994 convicted Makhan and Gokula under Section 302 IPC and Natthi, Karan Singh and Ram Bharosi under Sections 302/149 IPC and sentenced all five of them to undergo rigorous imprisonment for life and fine of Rs. 500/- each and in default of payment of fine to undergo further rigorous imprisonment for six months. All the five accused were also convicted for offences under Sections 148, 447 and 323 IPC and each of them separately sentenced to undergo rigorous imprisonment respectively for one year, six months and six months. Three remaining accused, namely, Meera, Phoolan Dei and Somoti were acquitted. It was against their conviction and sentence that the five accused filed appeals in the High Court which by impugned judgment reversed the convictions and sentences passed by the learned Additional Sessions Judge and as aforementioned. We may also note that the police had also submitted chalans for offences under Sections 3/25 Arms Act, 1959. At the end of the trial, however, it was found that no charge had been framed against accused under these offences and consequently there could not be any conviction against any of the accused.

5. The incident out of which these proceedings arose occurred on August 6, 1992 around 3.00 p.m. The dispute related to the ownership and possession of a piece of agricultural land situated in village Milsuma, falling under the jurisdiction of Roopwas Police Station. Deceased Shiv Ram along with his nephew Vijay Kumar alias Neta had gone towards the land on a tractor. He found that all the eight accused were ploughing their (Shiv Ram’s family) millet crops which they had sown a month or so earlier. When deceased Shiv Ram questioned the accused as to why they were ploughing the field belonging to their family he was fired upon, given lathi blows and stones were hurled at him. On August 8, 1992 at about 4.25 p.m. Shiv Ram died in the hospital on account of injuries suffered by him. Vijay Kumar in the process also suffered minor injuries. First Information Report of the incident was lodged by Narender Singh, brother of deceased Shiv Ram on August 7, 1992 at 7.00 p.m. His explanation for delay in recording FIR has been accepted by both the Sessions Court and the High Court. It was that he had gone to Bharatpur and returned to his village during the night of August 6/7, 1992 at 2.00 a.m. when he was told about the incident and the fact that Shiv Ram, who had suffered injuries, was taken to hospital at Bharatpur. Narender Singh rushed to Bharatpur where condition of Shiv Ram was serious and on the advice of the doctors Shiv Ram was taken to the hospital in Agra where be succumbed to his injuries. Narender Singh in his report recorded as under :-

“My father has five Bighas of (agriculture) Patia Chock land at Milsuma under his possession and Khatedari in which we sowed millet and yesterday i.e. on 6.8.1992 at 2.00-3.00 P

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1998 Supreme(SC) 795

Cases Referred (1)