GUMAN MAL LODHA, J. - (1.) THESE two matters arise from the same judgment. One is leave to appeal by the State of Rajasthan and other one is revision petition by the complainant, but in both of them, the acquittal of the accused persons -respondents has been challenged. It is not necessary to mention, in details, the facts of the case because, it is admitted that the dispute relates to an agricultural land and both the parties sustained injuries. It is also common ground that main bone of the dispute was regarding possession of the agricultural dispute was regarding possession of the agricultural land. Jodharam claimed the adoption to Gangaram s/o Lachhi and the deceased who was a supporter of Lachhi is said to be hired labour called for cultivation.
(2.) THE trial court, after a detailed discussion of the entire evidence produced in the case, in para 24 and 25, summed up that from the evidence of the Sarpanch and the Patwari coupled with mutation order, it is proved on record that the disputed land was in possession of Jodharam accused -party. Regarding the judgment of the S. D. O. on which reliance is placed by Shri G. C. Chatterjee the learned Public Prosecutor and Shri A. K. Gupta, the learned counsel for the complainant -petitioner, it is common ground that on the relevant date, there was a stay order of the Revenue Board. Naturally, the Revenue Board being highest in the hierarchy of the revenue authorities, the judgment of the S. D. O. in favour of the complainant can be of no value or credence in order to ascertain possession on that particular date. Having heard the learned counsel for the parties, we are of the opinion that in the present case, primarily the factum of possesion of Jodharam accused party has been found to be established by the trial court on very good cogent grounds and credible oral and documentary evidence. We have not been able to find out any serious infirmity in this finding. In our view, once the stay order of the Revenue Board was there and the incident is alleged to have been taken place after about 3 weeks of that stay order, it was the duty of the complainant -party to move the Revenue Board for vacation of the stay order or for the clarification or modification of the stay order, as the case may be. Having not done so, and once the stay order was in existence, the accused party of Jodharam was within their legal rights to resist any effort of the complainant to dispossess them or cultivate the land of Gangaram. We are not here to determine, whether the adoption of Jodharam was valid or not or even whether it is proved as it is required to be proved in civil case or not. We are impressed by the statement of Sarpanch who has appeared as defence witness that after mutation order he went on the field and divided the land between Jodharam and Lachhi on the spot, by motes and bounds.
(3.) IT has been held in Mana vs. State of Rajasthan (1) that the right of the private defence and property has been respected during all ages under all laws including ancient law of India. So much so that according to our ancient text of Vyavshara Mayukhs of Neelkantha and Manu's dictum was that one may certainly kill without hesitation a man who comes upon him as an Atatayin whether he be a teacher or a child or an old man or a learned Brahamana. Katyayana says, "one may go on to kill another who approaches as an Atatayin (i. e. with a felonious intent) even if he be one who was thoroughly mastered the Vadas. , thereby he does not incur the sin of Brahamana murder. " The ancient shastras have given great importance to the right of private defence and made it a religious duty of a person to kill a person who is an "atatayin if he comes raising his weapon and if one fails to kill him, he would become guilty as a murderer". In the Mitakashra Galver says, "he who kills a learned Brahaman who approaches as an Atatayin raising his weapon to strike does not become the murderer of a learned Brahmana. He would be so, if he did not kill him. " ;