SHARMA, J - (1.) THIS is an appeal filed by Karnail Singh against the judgment of the learned Additional Sessions Judge, Hanumangarh, dated 5th March, 1976, by which the appellant was convicted under section 307, I. P. C. and Sec 27 of the Arms Act and sentenced to undergo rigorous imprisonment for 3| years and to pay a fine of Rs. 500/ , in default of payment of fine to further suffer rigorous imprisonment for six months on the first count and on the second to undergo rigorous imprisonment for six months and to pay a fine of Rs 100/-, in default of payment of fine to further suffer rigorous imprisonment for one month. Both the substantive sentences of imprisonment were, however, ordered to run concurrently.
(2.) THE incident that led to the prosecution of the appellant may be briefly described as follow: On 14th December, 1974, Mangal Singh's wife Inder Kaur purchased agricultural land measuring 8 Bighas in all situated in Chak No. MKS 20 of village Manaksar, Tehsil Sangaria, District Sri Ganganagar, for a sum of Rs. 16000/-, from Jagir Singh son of Asha by caste Aral vide registered sale-deed of the same date and got possession over it. After the land was purchased, Inder Kaur's husband Mangal Singh and his son Jeet Singh started cultivating it. On 26th February, 1975, at about 8 or 9 a. m. Jeet Singh accompanied by his younger brother Balbir and Sardara Teli went to his land for digging a water-channel. Sardara Teli was employed by Jeet Singh to dig the water-channel. While he was digging it, Karnail Singh appellant came out of his field and asked Jeet Singh and his companions to go out of the land. Karnail Singh had a double-barrel gun with him at that time. He began to hurl abuses upon Jeet Singh and his brother Balbir. Jeet Singh asked him not to utter abuses. THEreupon, Karnail Singh fired a shot from his gun, the ballets of which hit Jeet Singh on his chest. As a result of the shot, Jeet Singh fell down and became unconscious THE appellant ran away from there. Balbir and Sardara lifted-up Jeet Singh and took him to Sangaria Hospital in a tractor. When they were taking the injured to the hospital, they met Mangal Singh in the way. Mangal Singh also accompanied them to the hospital. At Sangaria Hospital Jeet Singh was medically examined as to his injuries. THEreafter, he was removed to Hospital at Ganganagar, where his injuries were X rayed and found grievous. A report of this incident was lodgeo by Sardara with the police at police station, Sangaria, the very day in the noon. THE police registered a criminal case under sections 307, I. P. C. and 27 of the Arms Act against the appellant on the basis of the verbal report filed by Sardara and made the usual investigation. Rameshwar Lal, A. S. I. reached the place of occurrence, inspected the site, prepared a site-plan and an inspection memo, At the time of the site-inspection, he noticed one missed cartridge of 12 bore gun and some wads lying at the spot. He took the cartridge and the wads into his possession vide memo of recoveries Exs. P. 4 and P. 5 respectively. THEn he arrested Karnail Singh and seized one licensed double barrel 12 bore gun from his possession vide memo of seizure Ex. P. The A. S. I. took the bloodstained shirt of Jeet Singh also into his possession and collected documentary evidence relating to possession of the family of the injured over the land in question. On completion of investigation, Rameshwar Lal, A. S. I. submitted a charge-sheet against the appellant in the court of the Munsiff-cum Judicial Magistrate, Hanu-mangarh, under section 307, I. P. C. and S. 27 of the Arms Act. The learned Magistrate perused the relevant papers and, upon finding a prima facie case exclusively triable by the court of Sessions, committed the appellant to the court of the Sessions Judge, Sri Ganganagar, for trial. The Sessions Judge, however, transferred this case to the court of the Additional Sessions Judge, Hanumangarh, for trial according to law. 3. The learned Additional Sessions Judge tried the appellant for the aforesaid offences and found him guilty thereof. He, therefore, convicted and sentenced the appellant under section 307, I. P. C. and S. 27 of the Arms Act in the manner stated above. Aggrieved by his conviction and sentences, the appellant has preferred this appeal. I have carefully gone through the record and heard Mr. Bhim Raj Purohit for appellant and Dr. S. S. Bhandawat, Public Prosecutor, for the State. The first contention raised by Mr. Bhim Raj Purohit on behalf of the appellant is based on alibi. The appellant set-up a plea of ignorance of the whole matter on the ground that he was present at a place far off from the scene of crime at the time when it was alleged to have been committed. According to the appellant's plea, the fact of his presence elsewhere was wholly inconsistent with his presence at the spot and, therefore, with his complicity in the crime. The burden of proof lay upon the appellant to establish his plea. The appellant examined Sri Baghrwat Singh, Advocate, D. W. 1 and produced certified copies of some documents, i. e. his application under section 107, Cr. P. C. Vakalatnama and order-sheet dated 26-2-1975, marked Exs. D. 2, D. 3 and D. 4 to show that he could not have committed the act imputed to him as he had been at a place far off from the place of the incident at the moment of the crime. The trial court appraised the evidence led by the appellant in support of his plea of absence and attached no value to it for the simple reason that it could not establish that the appellant was at Hanumangarh at the moment of the crime and that he remained there for such a period of time as must have excluded the probability of his presence at the place of the crime when it was committed. Mr. Bhim Raj Purohit, learned counsel for the appellant, strenuosuly urged before me that the trial court committed an error in discarding the evidence of Bagrawat Singh, D. W. 1 as untrust worthy, especially when it was supported by documentary evidence, the genuineness of which was beyond doubt. He further argued that the trial court wrongly held that the appellant failed to prove that he was far away from the place of occurrence at the moment of the crime. According to him, the appellant was not bound to prove his plea of alibi beyond reasonable doubt. It was sufficient for him to raise a reasonable doubt of his presence at the scene of the crime at the time when it was committed. It was further urged by Mr. Bhim Raj that the evidence of Bagrawat Singh was entitled to great weight as he stated, in clear and definite terms, that the appellant was present in his office on 26-2-75 at 9 or 9 30 a. m. for getting an application (Ex. D 2) drafted and that he remained with him up to 10-30 a. m. in the court. I have considered the above contentions and have perused the state-ment of Shri Bagrawatg Singh, D. W. 1 along with the documents marked Exs. D. 2, D 3 and D. 4. Shri Bagrawat Singh merely stated in his deposition at the trial that on 26-2-1975 Karnail Singh appellant had come to his office or 9 or 9-30 a. m He professed to have drafted an application under S. 107, Cr. P. C. at the instance of the appellant. According to him, the application was got typed by the appellant in the court-premises by a petition writer the very day at 10. 30 a. m. After the application was typed, Shri Bagrawat Singh presented it in the court of the Sub Divisional Magistrate, Hanumangarh, along with his Vakalatnama at 12 in the noon or 1 p. m. on 26-2-1975. From the evidence of Shri Bagrawat Singh, it is not established that the appellant remained with him after 10. 30 a. m. Shri Bagrawat Singh did not state in his deposition that the appellant was present in the court of the Sub Divisional Magistrate, Hanumangarh, when he had presented the application under S. 107, Cr. P. C. along with his Vakalatnama. It is evident from his statement that village Manaksar, where the occurrence took place, lies at a distance of 4 or 5 miles from Hanumangarh and is connected with tarred-road. Shri Bagrawat Singh further admitted in his cross-examination that buses were available after every 15 or 20 minutes for going to Manaksar from Hanumangarh. The certified copy of the order-sheet Ex. D. 4 further reveals that the presence of the appellant in the court was not recorded by the Sub Divisional Magistrate, Hanumangarh, at the time when the application under S. 107. Cr. P. C. was presented before him along with the affidavits. On the other hand, it discloses that Arjun Singh had presented the application under S. 107, Cr. P. C. before the Sub Divisional Magistrate, Hanumangarh, on 26-2-1975. In order to establish the plea of alibi, the appellant must have led evidence to show that he was so far off at the moment of crime from the place, where the offence was committed, that he could not have comi-tted the imputed act. In the instant case, the occurrence took place at 11 am. on 26-2-1975. The proof adduced by the appellant in support of his plea of alibi did not cover and account for the whole of the time of the occurrence in question or at least for so much of it as to exclude the probability of his being present at the scene of the crime when it was committed. The place, i. e. , the court of the Sub Divisional Magistrate, Hanumangarh, where he is alleged to have been present at the moment of the crime, was not far off from the scene of the crime. The appellant could reach the place of occurrence at 11 a. m. after getting his application under sec. 107 Cr. P. C. typed by a petition-writer at 10 30 a. m. by boarding a bus at Hanumangarh. Consequently I do not feel persuaded to held that the trial court committed an error in rejecting the plea of alibi set-up in this case by the appellant. The next contention put forward by Mr. Bhim Raj Purohit is that even if it is taken to be proved that the appellant was present at the scene of the crime at the time of its commission and committed the act imputed to him, he could not be held guilty for the offence punishable under Sec 307 I. P. C. because the injured and his companions had trespassed upon the appellant's land and dug a water-channel therein immediately before the occurrence. According to the learned counsel, the injured and his associates were aggressors and the appellant was entitled to use necessary force in defending his possession. In support of his above contention, Mr. Bhim Raj Purohit relied on an authority of the Supreme Court Munshi Ram vs. Delhi Administration (1 ). Dr. S. S. Bhandawat, Public Prosecutor for the State, on the other hand argued that the appellant could not take the law into his own hands and make an attempt to dispossess Jeet Singh by force as the injured had been in possession of the land in question prior to the occurrence for a period within which the appellant, if felt aggrieved, could seek redress from the authorities concerned. According to him, the appellant was not in possession of the land in question at the time of the occurrence and so there was no question of exercise of the right of private defence of the property on his part. I have given my anxious consideration to the rival contentions. The pertinent question that arises for determination, in a case where there is fight for the possession of the property, is whether the accused was in possession or not at the time of commission of the alleged offence. Before dealing with this question, I may observe that there is ample reliable evidence of Jeet Singh, Sardara and Balbir from the side of the prosecution supported by the medical evidence to prove beyond reasonable doubt that the appellant committed the crime of attempt to murder by firing a shot from his double barrel gun at Jeet Singh while the latter was getting a water-channel dug in the land in question by his servant Sardara. The appellant denied having committed the crime. As indicated above, he set-up a plea of alibi, which was rightly rejected by the trial court. It is, however, open for the appellant to plead that he was present else-where at the time of occurrence and did not commit the act alleged against him but that if it is taken to be proved that he committed the offence, he acted in his right of private defence of property. If there is sufficient material on the record to show that the appellant acted in his right of private defence of property, he cannot be deprived of the benefit of the plea of self defence even though he tried to set-up the plea of absence in vain and pleaded the right of private defence of the property in the alternative Hence, it is the duty of this Court to sift and assess the evidence with care and caution with a view to finding out the circumstances under which the appellant fired a shot from his double-barrel gun at Jeet Singh. From the record it is evident that the prosecution tried to prove the possession of Mangal Singh and his two sons, namely, Jeet Singh, injured, and Balbir over the land in question by oral as well as documentary evidence. The oral evidence adduced by the prosecution in proof of possession is of Jeet Singh, Balbir, Mangal Singh and Madan Lal, Patwari. The documentary evidence led in this behalf is demand notices of dues of the Irrigation Department Ex. P. 5, P. 7 and receipt Ex. P. 8, and the extract of the Khasra Girdawari of Samvat year 20 28-31 Ex. P. 10. The oral evidence of Mangal Singh and his two sons Jeet Singh, P. W. 1 and Balbir Singh, PW. 3 is that the land comprised in old chak No. 20 MKS (now new chak No. 18 KMS) was in their possession at the time of occurrence, as it had been purchased by Mangal Singh's wife from Jagir Singh for a sum of Rs. 16000/-, vide registered sale-deed dated 14-12 1974. Mangal Singh, P. W. 5, further stated that his name was duly entered in the revenue record, i. e. Khasra Girdawari of Samvat year 2031 in the column of cultivators. His evidence finds support from the testimony of Madan Lal, Patwari, of that area. Madan Lal Patwari, PW 10, slated in his deposition that the land in question was in possession of Mangal Singh on 26-2-75 and that Mangal Singh had cultivated barley and Guar in it. He has proved a copy of the extract of the Khasra Girdawari Ex. P. 10 to show that the name of Mangal Singh was mentioned in the column of cultivators in Rabi of Samvat year 2031. I have carefully scrutinised the evidence led by the prosecution with regard to possession of Mangal Singh over the land in question and found it untrust-worthy for the following reasons (1) It is evident from the copy of the registered sale-deed Ex. D. 1 that the land in controversy was purchased by Mangal Singh's wife Inder Kaur from Jagir Singh for a sum of Rs. 16,000/-, on 14-12-1974; (2) Jagir Singh was not examined by the prosecution to show that the possession of the land was handed over by him to Inder Kaur or her husband, Mangal Singh, after the execution of the sale-deed. It will not be out of place to mention that Inder Kaur also has not appeared in the witness box from the side of the prosecution to show that she had got the possession of the land from Jagir Singh vendor in pursuance of the registered sale deed dated 14-12-1974. It is expressly written in the sale-deed Ex. D. 1 that the vendee would be entitled to get her name entered as owner and possessor of the land in the revenue record even in the absence of the vendor; (3) There is nothing on the record to show that a mutation order was passed by the concerned revenue authorities in favour of Inder Kaur or her husband Mangal Singh after the sale of the land; (4) Madanlal, Patwari, merely stated in his cross-examination that in Samvat year 2031 the name of Mangal Singh was entered in Khasra Girdawari as cultivator of the land in question, but his above statement is not entitled to any weight in the absence of any entry in the Ghatna Bahi relating to the change of name of the cultivator. Madan Lal, Patwari, did not say in his deposition that he had entered the name of Mangal Singh in Khasra Girdawari of Rabi 2031 under orders of the Tehsildar or the Sub-Divisional Officer or of any other superior authority; (5) Under rule 50 of the Rajasthan Land Revenue (Land Rrecords) Rules, 1957, hereinafter referred to as the Land Records Rules, the patwari was required to keep two diaries (i) Diary of events and (ii) Diary of progress of work. The Diary of events, known as 'ghatna Bahi' in vernacular, is the register in which the following occurrences, besides others, which have no relevance in this case, must be noted on the date on which they came to the notice of the Patwari along with the manner in which they came to his knowledge: (i) all mortgages, sales or other transfers and leases; (ii) all changes done by the Patwari in the recorded entries at the time or after the Girdawari in cultivating occupancies and rents. Hence clause (iv) of rule 51 of the Land Record Rules requires that whenever a change has to be made in the recorded entries relating to possession of Khatedar tenants, the Patwari should make entry in the diary of events and if any such change necessitates a change in the Jama Bandi, the Patwari shall have to enter a mutation to give proper recognition to the change. Likewise sub-rule (1) of rule 74 makes it clear that column No. 6 of the Girdawari is provided for recording the name of the person who is actually the tenant of the land. It is the duty of the Patwari to find out who has cultivated a particular field and from whom he is holding, i. e. whether from the State or from the land holder. He is bound to enter the name of the existing tenant and has no authority to create a tenant or tenants of his own choice. In the instant case Madan lal, Patwari, has made a sudden charge in respect of possession of land in question in favour of Mangal Singh in Khasra Girdawari of Rabi of Samvat-year 2031 without making an entry relating to such change in the diary of events provided to be kept by him under rule 50. Unless any sudden change such as the present one is supported by the diary of events or by a mutation order, the evidence of the Patwari about Mangal Singh's possession cannot safely be held to be reliable, especially when the appellant has produced evidence which shows that the land in question had been in his continuous possession and the entries made by the Patwari in Khasra Girdawari of Rabi of Samvat-year 2031 relating to possession of Mangal Singh were wrong and false. The evidence produced by the appellant with regard to his possession over the land in question is documentary. The first document is a certified copy of the order of temporary injunction (Ex. D. 4) issued by the Sub-Divisional Officer. Hanumangarh, on 14-12-1974 in a suit filed by Ranjeet Singh father of the appellant, against Mangal Singh and others. By this order the Sub-Divisional Officer restrained Jagir Singh from alienating the land in question to Mangal Singh and further prohibited Mangal Singh from causing any interference with the possession of the plaintiff over the land in question. It appears, that despite this prohibitory order, Mangal Singh got a sale-deed executed in favour of his wife in respect of the land in question from Jagir Singh the very day, i. e. 14-12-1974 The temporary injunction was issued on the basis of prima-facie possession of appellant's father Ranjeet Singh over the land in question. There-after, Mangal Singh some how or the other got his name entered in the Khasra Girdawari of Rabi of Samvat year 2031 by Madan Lal, Patwari. When Karnail Singh appellant came to know about the false entry, he presented an application for correction of the entries before the Sub-Divisional Officer, Hanumangarh. The Sub Divisional Officer beard the parties, perused the revenue record and passed a detailed order on 15-9 1975 in favour of the appellant. The operative portion of the order of the Sub Divisional Officer, Hanumangarh, dated 15-9-75 incorporated in Ex. D. 6 is quoted below in extenso to show that the entries made by the Patwari in favour of Mangal Singh regarding his possession over the land in question in the Khasra Girdawari of the year 1974-75 (Rabi) were cancelled, as they were Wrongly made, and the appellant was held to have been in the cultivatory possession of the land during the aforesaid period: *** Mangal Singh, however, stated in his deposition that he had preferred an appeal against the order of the Sub-Divisional Officer dated 15-9-1975 and obtained a stay order but he did not produce any such order. On the basis of the above documentary evidence produced by the appellant, it may be safely held that Mangal Singh and his wife did not obtained possession of the land from Jagir Singh in pursuance of the registered sale-deed dated 14-12-1974. If they had acquired possession thereof by virtue of the sale deed, they would have taken steps to get a metation sanctioned in their favour by the revenue authorities and the Patwari would not have made a sudden change in respect of their possession without recording such a change in the diary of events provided to be kept by I am under rule 50 of the Land Records Rules. Apart from this, the prosecution did not examine any witness in whose presence possession of the land in question had been delivered by Jagir Singh vendor to Mangal Singh or his wife in pursuance of the registered sale-deed dated 14-12-1974. As stated earlier, even Jagir Singh vendor was not produced to show that he had handed over the possession of the land in question to Mangal Singh or his wife after execution of the sale-deed. Hence, it is clear that Mangal Singh and his sons were not in actual and effective possession of the land in question on the date of* occurrence. In this view of the matter, Jeet Singh and his brother Balbis were trespassers at the time of occurrence on the land in question which was in possession of the appellant. The appellant, therefore, had a right of private defence of property against criminal trespass committed by Jeet Singh and his brother Balbir Singh on his land. It transpires from the prosecution evidence itself that before the shot from the double barrel gun was fired at Jeet Singh, the appellant asked Jeet Singh and his brother to go out of the land bat they asserted their right to hold the land in question and refused to go out. Thus, the trespass committed by Jeet Singh and his brother on the land had not come to an end and the appellant had a right to prevent them from continuing to commit criminal trespass. The injured accompanied by his brother and his servant wrongfully entered upon the land in possession of the appellant and directed his servant Sardara to dig a water Channel in the land. The prosecution evidence itself shows that Sardara was digging water-Channel in the land when the appellant had come out of the land and protested against the criminal trespass committed upon his land by Jeet Singh and his brother. Hence, I have no hesitation in holding that during the continuance of the act of criminal trespass, the appellant had a right to turn the trespassers out of the land by force and, in doing so, to cause them any harm other than death.
(3.) NOW it has to be seen whether there was sufficient time for the appellant to have recourse to the protection of the public authorities and whether the appellant, while exercising the right of private defence of property, had inflicated more harm than was necessary for the purpose of his self-defence. The prosecution evidence itself reveals that Jeet Singh had entered the land along with his brother and the employee and was getting water channel dug therein by his servant Sardara. The injured and his party had entered the land, which was in possession of the appellant, with the avowed object of taking the land into their actual possession after dispossessing the appellant. The appellant, who was in possession of the land, was entitled to resist by force the trespass made on his property. There was no time left for him to have recourse to the public authorities for protection. If the appellant had taken recourse to the public authorities for protection, the avowed object of Jeet Singh and his companions would have been fulfilled. It is not the intention of law that a person who is being deprived of his property, of which he is in possession, should tacitly submit to the deprivation without exercising his right of private defence. As regards the extent to which the right of private defence of property could be exercised by the appellant in the circumstances of the case, it maybe observed that he had not exceeded such right. He fired a single shot from his double-barrel gun at Jeet Singh from a distance of 45 fc. When Jeet Singh fell down, as a result of the injury caused by some beliefs discharged from the gun, the appellant did not fire any other shot at Jeet Singh or at his associates. On the basis of the facts proved in this case, I have no hesitation in holding that the appellant did not exceed his right of private defence of property. As regards the appellant's conviction, under Sec. 27 of the Arms Act, it may be observed that it is not made out against the appellant, because I have already held above that the appellant used his gun in exercise of his right of private defence of property. Sec. 27 of the Arms Act contemplates possession of arms or ammunition "with intent to use the same for any unlawful purpose or to enable any other person to use the same for any unlawful purpose. " In the absence of any proof regarding intention of the appellant to use the gun for any unlawful purpose, his conviction and sentence under Sec. 27 of the Arms Act cannot be allowed to stand. The result of the above discussion is that I accept the appeal filed by Karnail Singh, set aside his convictions and sentences under sec. 307, Cr. P. C. and 27 of the Arms Act and acquit of him both the aforesaid offences The appellant is in jail. He shall be released forthwith, if not required in connection with some other offence. The gun and the licence may be returned to him in accordance with law after the period of appeal. . ;