1995 Supreme(SC) 719

SUPREME COURT OF INDIA
BEFORE DR A.S. ANAND AND M.K. MUKHERJEE, JJ.
RAJINDER AND OTHERS
Versus
STATE OF HARYANA
Criminal Appeal No. 125 of 1988{From the Judgment and Order dated 25/30-1-1988 of the Designated Court, Rohtak in Sessions Trial No. 104 of 1986}
Decided on 12-7-1995
Advocates appeared:
R.K. Jain, Senior Advocate (Ravinder Bana, Advocate, with him) for the Appellants;
D.B. Vohra, K.C. Bajaj and Ms Indu Malhotra, Advocates, for the Respondent.
R.L. Kohli, Senior Advocate (Ms Rani Chhabra, Advocate, with him) for the Complainant.

Headnote:(i) Indian Penal Code, 1860 - Sections 148, 302/149, 326/149, 325/149, 324/149 and 3231 149 - Convictions under - Appeal - Unauthorised entry of complainant party on disputed land - Accused in settled possession of land - No offence of criminal trespass made out - Murderous assault -Whether unauthorised entry of complainant party in disputed land legally entitled accused party to exercise their right of private defence to cause murderous attack? - (No) (Indian Penal Code, 1860 - Ss. 96 to 106 & 441)

       Held, that the right of private defence, be it to defend person or property, is available against an offence. To put it conversely, there is no right of private defence any act which is not an offence. In the facts of the instant case the accused party was entitled, in view of Section 97 and, of course, subject to the limitation of Section 99, to exercise their right of private defence of property 001 y if the unauthorised entry of the complainant party in the disputed land amounted to "criminal trespass", as defined under Section 441 I.P.C. (Para 20)

       Further held, that unauthorised entry into upto property in the possession of another or unlawfully remaining there after lawful entry can answer the definition of criminal trespass, if, and only if, such entry or unlawful remaining is with the intent to commit an offence or to intimidate insult or annoy the person in possession of the property. In other words, unless any of the intentions referred in Section 441 is proved no offence of criminal trespass can be said to have been committed. Needless to say, such an intention has to be gathered from the facts and circumstances of a given case. Judged in the light of the above principles it cannot be said that the complainant party committed the offence of "criminal trespass" for they had unauthorisedly entered into the disputed land, which was in possession of the accused party, only to persuade the latter to withdraw thereupon and not with any intention to commit any offence or to insult, intimidate or annoy them. Indeed there is not an iota of material on record to infer any such intention. That necessarily means that the accused party had no right of private defence to property entitling them to launch the murderous attack. On the contrary, such murderous attack not only gave the complainant party the right to strike back in self defence but disentitled the accused to even claim the right of private defence of person. (para 21)

       Consequently held:, that even if we had found that the complainant party had criminally trespassed into the panel entitling the accused party to exercise their right of private defence we would not have been justified in disturbing the convictions under Section 302 read with section 149 I.P.C., fix Section 104 I.P.C. expressly provides that right of private defence against "criminal trespass" docs not ex tend to the voluntary causing of death and Exception 2 to Section 300 I.P.C. has no manner of application here as the attack by the accused party was premeditated and with an intention of doing more harm than was necessary for the purpose of private defence, which is evident from the injuries sustained by the three deceased, both regarding severity and number as compared to those received by the four accused persons. However, in that case we might have persuade ourselves to set aside the convictions for the minor offences only. (Para 22)

       (ii) Indian Penal Code, 1860 - Sections 148, 302/149 - Unlawful assembly - Murderous Assault - Trial Court disbelieved both versions relating to genesis of assault - Court giving version or its own - Whether court was justified in making nut a case or its own? (No) Held, The trial Court disbelieved both the versions relating to the genesis of the assault and gave a version of its own which has already been reproduced. We arc in complete agreement with the learned counsel for the appellants that the trial Court was not justified in making out a case of its own, disbelieving and discarding the respective cases made out by the parties; but then, having given our anxious consideration to the evidence adduced by the parties regarding the origin of the incident of that fateful day, we arc of the opinion that the trial Court ought to have accepted the prosecution version. The trial Court held that keeping in view the incidents that took place earlier on November 12 and November 14, 1985 and the fact that a large number of miscreants came in three tempos and one tractor armed with deadly weapons for a murderous assault it would be an insult to common sense to believe the prosecution story that the nine members of the complainant party went there with folded hands to persuade them, to withdraw. In the context of the evidence on record we are constrained to say that the above remark made by the trial Court is not only uncalled for and unsustainable but unfortunate. (Para 14)

       (iii) Criminal Jurisprudence - Maxim falsus in uno, falsus in omnibus - Whether applicable to criminal trials? - (No)

       Held, that the maxim Falsus in uno, falsus in omnibus does not apply to criminal trials and it is the duty of the Court to disengage the truth from falsehood instead of taking an easy course of rejecting, the evidence in its entirety solely on the ground that the same is not acceptable in respect of some of the accused. On perusal of the impugned judgment we find that the trial Court took great pains to consider and discuss the case of the individual accused including the pleas of alibi; raised on behalf of appellants Ishwar anti others and on a threadbare discussion thereof found that the participation of the appellants before us in the incident stood proved beyond all reasonable doubt, while acquitting others on grounds which were available to them only. (para 23)