SHIV KUMAR SHARMA,J. - (1.) THIS is an unfortunate case in which two persons from the complainant side and one from the accused side appear to have lost their lives over a land dispute. The prime questions that have come up for our consideration in the instant appeals are as to in what manner a person, who faces imminent peril of life and limb of himself or another should act ? Is he expected to weigh in golden scales 'the precise force' needed to repel the danger ?
(2.) ALL the thirteen appellants were indicted before the learned Additional Sessions Judge Khetri (Distt. Jhunjhunu) in sessions case No. 32/1994 for having committed murder of Gheesa, and Rohtas. They were found guilty, convicted and sentenced as under - 1. Leelaram @ Sukhvir Under Section 302 IPC Imprisonment for life and fine of Rs. 1000/-, in default to further suffer three months RI. Under Section 3/25, Arms Act. Six months RI and fine of Rs. 500/- in default to further suffer 2 months. R.I. 2. Rameshwar Dayal U/s. 323 IPC Four months RI and fine of Rs. 300/- in default to suffer one month SI. 3. Gokal 4. Inderraj 5. Chhotelal 6. Hariram 7. Ramjilal 8. Satyaveer 9. Bhagwanaram 10. Rajveer 11. Bhagat Singh 12. Rohtas 13. Fakirchand Sentences awarded to appellant Leela Ram were directed to run concurrently. Against this judgment of conviction, that the appellants have preferred the instant appeals. Brief resume of the prosecution case is this. A written report Ex.P.10 was submitted to the Police Station Khetri by Guljari (PW.17) with the averments that on August 4, 1992 around 5.00 a.m. Rameshwar s/o Pal Singh, Birbal s/o Pal Singh, Rajveer s/o Rameshwar, Satyaveer s/o Rameshwar, Inderraj s/o Birbal, Leela Ram @ Sukhveer s/o Rameshwar, Gokal, Fakir Chand, Ramjilal, Chhote Lal, Rohitash, Hari Ram, Bharat Singh and Bhagwana went in truck No. RNE 8005, alongwith a Tractor No. HRM 460 to the land bearing Khasra No. 407 situated in village Dudva and started cultivating the land. When Bhata Ram (PW.13) asked them to obey the stay order of the court and stop cultivation, Birbal made an assault at him. In the meanwhile some persons armed with lathis and pharsis got down from the truck and some while standing on the truck, started pelting stones at the complainant party that also used sticks in defence. Leelaram was armed with 12 Bore gun. On being exhorted by Rameshwar, Leelaram opened fire resulting in death of Gheesharam. Rajveer, who was sitting on the driver seat of the truck, made an attempt to crush the complainant party under the wheels of the truck but instead he crushed his own uncle Birbal who died at the spot. When the complainant party ran towards the village Leelaram again opened fire that hit Rohtas who died instantly. Members of complainant party viz. Leela, Prahlad, Jagdish and many others sustained injuries in the incident. The Police Station Khetri registered a case under Sections 147, 148, 149 and 302 IPC and investigation commenced. Statements of witnesses were recorded under Section 161 Cr.P.C. The autopsy on the dead bodies were conducted. The accused were arrested. The gun used in the incident was seized at the instance of accused Rameshwar. On conclusion of investigation the charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge, Khetri. Charges under sections 148, 149, 302, 324, 323 IPC and 3/25 of the Arms Act were framed. The accused denied the charges and claimed trial. The prosecution examined as many as 27 witnesses in support of its case and exhibited 61 documents. In the statements recorded under Section 313 Cr.P.C. the accused claimed innocence. Four witnesses were examined in defence by the accused and as many as 41 documents were exhibited. The learned trial court on hearing the final submissions convicted and sentenced the appellants as indicated hereinabove.
(3.) MR . Jagdeep Dhankar, learned Senior Advocate assailing the findings of the learned trial Judge, canvassed that the situation bearing on the land in question has not been properly appreciated in the impugned judgment. The possession of the accused party over the land was lawful and settled. It is revealed from Girdawaris Ex.D-15, Ex.D.17 and Ex.D.18 that the land in dispute was under cultivation of appellant Rameshwar. There was no injunction against accused Rameshwar in respect of the aforementioned land from any court. In such a situation the appellant had settled a right over the land and no offence could be made out against them if they act to protect their right. The other party if aggrieved by the action of the appellants ought to have taken recourse to the assistance from authorities in terms of Section 99 Cr.P.C. rather than to take law in their own hands. The court below has not appreciated the injuries sustained by Birbal. The prosecution has failed to explain the injuries by Birbal and the story of prosecution has become doubtful. The prosecution version as regards the death of Birbal on account of crushed by truck tyres, is further falsified by site plan Ex.P.15. It will be seen from the site plan Ex.P.15 that near the dead body of Birbal there were no signs of movement of a truck. Analysis of the injuries of deceased Birbal would lead to the conclusion that Birbal suffered injuries not from the truck tyre as asserted by the prosecution, but on account of belabouring at the hands of complainant party as held out by the defence. Birbal suffered injuries at the hands of complainant party and only thereafter firing took place and the accused party was fully justified in acting in defence of its person and property. The court below has also not properly appreciated the contention of defence that the injuries sustained by Gheesa and Rohtas did not indicate any intention to kill. Both of them suffered fire arm injuries on non- vital parts. As the appellants acted in their right of private defence they could not have been convicted.;