D.S.Tewatia, J. - (1.) EIGHT persons, namely, Sardul Singh, his three sons Joginder Singh, Kulwant Singh and Jaswant Singh, Kasturi Lal and his brother Jaswant Lai; Balwant Singh and Jagir Singh were brought to trial for offences under Section 307 read with Section 149, Section 325 read with Section 149, Sections 148 and 447 Indian Penal Code; Two of them, i.e., Balwant Singh and Jagir Singh were acquitted while rest of them were convicted under Section 307/149 of the Indian Penal Code for the injuries caused to Niranjan Singh P.W. and sentenced to three years rigorous imprisonment each; they were further convicted for an offence under, Section 307/149 of the Indian Penal Code for the injuries caused to Ganga Singh and each of them was sentenced to three years rigorous imprisonment; they were also convicted of an offence under Section 307/149 of the Indian Penal Code for the injuries caused to Sarwan Singh and each of them was sentenced 'to three years' rigorous imprisonment they were convicted for the same charge for the injuries caused to Naginder Singh, P.W., and each of them was, sentenced to three years' rigorous imprisonment. All these accused were also convicted of an offence under Section 148 of the Indian Penal Code and each of them was sentenced to. one year's rigorous imprisonment. They were further convicted of an offence under Section 447 of the Indian Penal Code and each of them was sentenced to two months rigorous imprisonment. All these sentences were, however, directed to run concurrently. These accused were acquitted of the charge framed against them under Section 325/149 of the Indian Penal -Code.
(2.) THE convicted ones came up in appeal to this Court through Criminal Appeal No. 208 of 1971. Their appeal, in the first instance, came up for hearing before Gujral, J. before whom the principal argument advanced on their behalf was that they could be held liable for the offences with which they had been charged and convicted only if they were to be labelled as the aggressors which, in turn, would depend on the finding as to whether the land regarding the possession whereof the parties came in violent contact with each other, was, on the date of occurrence, in the' possession of the Appellants or the complainant party and that they (Appellants) having been already declared by the Executive Magistrate during the course of proceedings under Section 145 of the Code of Criminal Procedure at their instance, to be in actual possession of the land in dispute with effect from 18th April, 1968, by his order dated 27th July, 1968, and the said order having been upheld by the High Court on 28th August, 1969, and also by the Supreme Court on 30th September, 1969, the question as to which party was in possession on the date of occurrence could not be gone into in the present criminal proceedings - -there being no evidence, on the record, of the fact of the complainant party having regained possession of the same from the Appellants in due course of law. His attention was invited by the Appellants to a decision of the Patna High Court reported in Ambika Thakur and Ors. v. Emperor : A.I.R. 1939 Pat 611 in support of the submission abovesaid, while the State, for their contrary submissions, drew support from a decision of the Calcutta High Court reported in Rakhal Dolui and Anr. v. Makham Lal Ghose : A.I.R. 1927 Cal 701. Due to the conflicting views expressed by the two High Courts and there being no decision of this Court on the point, the matter was considered by Gujral, J. to be deserving of a consideration by a larger Bench. He, thus, referred this case by his order dated 23rd December, 1971, for decision by a larger Bench and it is how that this appeal has been placed before us. In order to appreciate the contention advanced on behalf of the Appellants, it is but necessary to notice only a few relevant facts.
(3.) A piece of land measuring 522 kanals and 16 marlas situated in the area of village Kaneja was being owned by an absentee landlord named Bhim Sen son of Bodh Raj. The land was being managed on his behalf by His attorney Shri Chaman Lal Chopra. This land was being cultivated by Niranjan Singh, Ganga Singh, P.Ws. and other tenants since the year 1964. On 25th March, 1968, Kasturi Lal, Jaswant Lal and Jaswant Singh, accused, along with Satish Kumar son of Harkishan Lal and Gurbachan Kaur wife of Sardul Singh accused purchased the above said land from Shri Chaman Lal Chopra, the attorney of Shri Bhim Sen. On 18th April, 1968, the vendees initiated proceedings under Section 145 of the Code of Criminal Procedure against the complainant party claiming that they had purchased the said land on 25th March, 1968, of which mutation was sanctioned by Tehsildar on 1st April, 1968 and of which they were given possession by Niranjan Singh and other tenants on 9th April, 1968 after having received a sum of Rs. 20,000 as compensation from them. The Executive Magistrate, on 27th July, 1968, found the Appellants to be in possession on the date of the filing of the application under Section 145 of the Code of Criminal Procedure, i.e., 18th April, 1968, and the operative part of his order is in the following terms: From the above discussion, I arrive at the conclusion that party No. 3 and 4 Kasturi Lal, Satish Kumar, Jaswant Lal, Jaswant Singh, Gurbachan Kaur and Satwant Kaur, were in actual possession of the land in dispute and the crops standing therein on the date of issue of the preliminary order by this Court; i.e., on 18th April, 1968. Under Section 145(6), Code of Criminal Procedure, I declare the said persons to be in actual physical possession of the land in dispute and to be entitled to the possession thereof until evicted therefrom in due course of law (sic) and forbid all disturbance of possession until such eviction. The attachment of the standing crops made vide order of this Court dated 20th April, 1968 is hereby released in favour of Party No. 3 and 4 (Kasturi Lal, Satish Kumar, Jaswant Lal, Jaswant Singh, Gurbachan Kaur and Satwant Kaur above mentioned). Order be issued accordingly to the Tehsildar, Ludhiana, who is the official receiver. This order was affirmed by the High Court on 28th August, 1969 and by the Supreme Court on 30th September, 1969. The complainant had, in the meantime filed a suit in the civil Court seeking a declaration to the effect that the order of the Executive Magistrate dated 27th July, 1968, declaring the vendees -Appellants to be' in possession of the land purchased by them from Bhim Sen Was wrong and that they, in their capacity as tenants, continued to be in possession thereof till the filing of the said suit. They secured an injunction against the Appellants from the said Court on 30th April, 1968, which was vacated by the District Judge on 22nd June, 1968, in appeal. A civil revision in the High Court against the said order of the District Judge was finally dismissed by the High Court' on 13th November, 1968, and it was thereafter on 24th November, 1968, that the parties came in violent conflict with each other regarding the possession of the land in question in which . occurrence Niranjan Singh and his five other companions sustained firearm and blunt weapon injuries. It is unnecessary to go into the facts of the occurrence as the occurrence has been admitted by the Appellants who have pleaded that they were in possession of the land and they caused injuries to the complainant party in the exercise of right of defence of property when the said party sought to take forcible possession of the land in question.;