- (1.) THIS is an appeal by Kundan, Nandi, Chhitar, Sardar and Ghinsada against the judgment of the learned Additional Sessions Judge, Gangapur, dated the 31st of August, 1957. The learned Judge has convicted Kundan and Nandi under Sec. 30', IPC. read with sec. 34, IPC. and sentenced them to eighteen months' rigorous imprisonment and a fine of Rs. 100/- each, Chhitar, Sardar, Ghinsada have been convicted under sec. 323, IPC. and sentenced to three months' rigorous imprisonment and a fine of Rs 25/- each.
(2.) ACCORDING to the prosecution, there is a piece of land separated by a path from the house of Kundan accused in the village of Pahari within the Police Station Mahuwa of District Sawai Madhopur. This land had been in possession of Ruggi for quite a number of years and he had a platform of his thereon. Two years before the date of occurrence, which is the 18th of August, 1956 the said platform had ceased to exist Four or five days before the date of occurrence, Kundan had begun to tie his cattle upon this piece of land and Ruggi had been protesting against the action of Kundan. On the date of occurrence at about 7. 00 A. M. , Ruggi again went to the spot and said that he should not tie his cattle on that land. Kundan replied that he would continue to tether his cattle there and saying this, he, along with Karan, Nandi and Chhaju, who were sitting at Kundan's house at that time, went to that piece of land, armed with lathis and dealt lathi blows to Ruggi injuring him on the head and one of his arms As a result of the injuries, Ruggi fell down. His brother Kamal seeing this, came to the sopt to help Ruggi, whereupon Kundan called other person and Jagan, Chhitar, Sardar, Ghasida, Gaddal, Phirangi, Dharma, Surgyan, Papiya and Bodan came to the spot, armed with lathis and began to give beating to Kamal and also to Ghisa Ramjilal and Malkhan, who had been attracted to the scene to save Kamal and Ruggi. Thereafter, all the accused retreated from the spot. Ruggi was taken in a bullock cart along with Kamal to the Police Station Mahuwa where the first information report was lodged by Ramjilal. All the fourteen accused were named in that first information report. Ruggi died the same evening. Before he had died, his medical examination as well as that of Kamal, Ramjilal, Malkhan and Ghisa had been made by the Medical Officer Shri Bal Raj of the Mahuwa Dispensary, After his death, pos|t mortem examination of the body of Ruggi, hereinafter to be referred to as the deceased, was made by Dr. Bal Raj on the 19th of August, 1956. Ail the accused were arrested and it was found no medical examination that Kundan and Nandi had also one injury each. After the completion of the investigation, the Police challanged all the fourteen accused under Secs. 148 and 302/34, 325 and 325, I. P. C. , in the Court of the Munsiff Magistrate, Hindaun, who committed Kundan, Karan, Nandi and Chhajju to take their trial under sec. 304, Part One, IPC and the remaining ten accused to take their trial under secs. 147 and 325 read with 149, IPC. in the court of the learned Additional Sessions Judge, Gangapur. In the court of the Additional Sessions Judge, on the motion of the Public Prosecutor, charge sheet was amended and the four accused Kundan, Nandi, Karan and Chhajoo were charged under sec. 304, Part One, I. P. C. read with sec. 34, I. P. C. The prosecution produced Ghisa (PW.), Ramjilal (PW. 2) Malkhan (PW. 3), Nawal (PW. 4), Gir Raj (PW. 5) and Kamal (PW. 6) as eye-witnesses of the occurrence, One Moharpal Patel (PW. 7) was produced to prove possession of Ruggi over the plot in dispute and the investigation officer Shri Sumer Nath was examined as PW. 8. The court examined Dr. Bal Raj as its own witness and he is C. W. 1. All, excepting Kundan and Nanda, pleaded their absence from the place of occurrence at the time of the occurrence. Kundan said that the land in dispute had been in his possession for a long time and that on the date of occurrence in the morning when he was untying his cattle on the disputed land, Ghisa, Malkhan, Ramjilal, Ramal and the deceased went there and asked Kundan why he had tied his cattle on that plot. There upon Kundan made entreaties and in the meanwhile Ghisa gave a lathi blow on his hand and Nandi who had come from his house with his cattle and the party of the deceased began to fight with each other with lathis. Nandi said that he was passing by the land in dispute at the time of the occurrence and found that Malkhan Ghisa, Ramjilal, Kamal and the deceased were abusing Kundan. Ghisa gave a lathi blow to Kundan. Then, Nandi and Kundan on one side and the five persons of the party of the deceased on the other began to fight with each other. He expressed his ignorance as to who caused injuries to the deceased and his party. Learned Additional Sessions Judge was not satisfied beyond doubt about the participation of Karan and Chhajju in the beating given to the deceased. He, however, came to the conclusion that Kundan and Nanda had given beating to the deceased and caused him injuries although he was not in a position to say as to which of these two accused was responsible for the head injury which according to the medical opinion, resulted in his death. He found that both the accused assaulted the deceased in furtherance of their common intention to beat him. He was unable to come to a finding that the act of the two accused amounted to an offence under sec. 304, I. P. C. but held them guilty of an offence under sec. 3 5 IPC read with sec. 34, I. P. C. He held Sardar, Chhitar and Ghinsada guilty of an offence under Sec. 323, I. P. C. for causing simple hurt to Kamal and sentenced them to three months' rigorous imprisonment and a fine of Rs. 25/- each. He held that no offence under sec. 147, I. P. C. was made out against any of the accused. With the exception of the above accused all other accused were acquitted of all the charges. The five convicted accused have come in appeal to this Court. I have heard Shri P. N. Datta on behalf of the appellants and Shri C. B. Bhargava on behalf of the State. It has been argued by Mr. Dutta that the evidence for the prosecution has not been believed in major part by the learned Additional Sessions Judge himself. The evidence of all the eye-witnesses was that the four accused Kundan, Nandi, Karan and Chhajju had given beating to the deceased but it was not believed by the learned Additional Sessions Judge that Karan and Chajjoo took any part in the beating of the deceased. Learned Additional Sessions Judge has not been able to find as to which of the accused Kundan and Nandi, caused the grievous injury to the head of the deceased. None of them could, therefore be convicted under sec. 325 IPC. and at the most they could be convicted under sec. 323, IPC. even if it be believed that they had given any beating to the deceased. It was argued that from the prosecution evidence itself, it was established that at least four or five days before the date of occurrence, Kundan had begun to tether his cattle on the land in dispute and so he bad been in possession of the land in dispute at least for four or five days before the occurrence. The party of the accused had no right to take forcible possession from Kundan and what they ought to have done, if they had any genuine grievance, was to take appropriate steps in competent courts for the dispossession of Kundan. It was argued that it is fully established that Kundan and Nandi had one injury each and it has not been explained by the prosecution how these injuries were received. The accused Kundan and Nandi had said that there was a mutual fight between the party of the deceased on one side Kundan & Nandi on the other and the defence has been able to explain the injuries on both the parties but the prosecution party has deliberately suppressed the fact of beating given to Nandi and Kundan by the party of the deceased and this goes to show that the prosecution party was conscious of the fact that injuries to the party of Ruggi were caused by the party of the accused in exercise of the right of private defence of property as well as of person. Consequently, it was argued that none of the accused had committed any offence. As regards Ghinsada, Chhitar and Sardar, it was argued that the learned and Chhajjoo have been given the benefit of doubt because they did not admit their presence on the spot. The prosecution evidence has shown without doubt and it has been admitted by Kundan and Nandi that they were undoubtedly present on the spot. Learned Additional Sessions Judge was therefore not unjustified in convicting these two accused, although he had to give the benefit of doubt to the other two accused. It was argued that simply because the prosecution has not been able to explain certain injuries on the party of the prosecution, the whole testimony of the prosecution cannot be discarded. Reliance has been placed on the ruling of their Lordships of the Supreme Court in the case of Jumman vs. The State of Punjab (l ). Reliance was also placed upon a ruling of Patna High Court in the case of Emperor vs. Bandhu Singh (2) and Muhammad Khan vs. The Crown (3), in order to show that a casual act of possession would not have the effect of interrupting the possession of the rightful owner and that the rightful owner may reenter and reinstate himself provided he does not use more force than is necessary and that such entry will be viewed only as a resistance to interruption at possession which had never been lost. So far as Sardar, Ghinsada and Chhitar are concerned, it was argued that there was reason to disbelieve the evidence of Malkhan and Ghisa that they had caused injuries to Kamal and they were therefore rightly convicted by the learned Additional Sessions Judge under sec. 323, I. P. C. In reply Mr. Dutta on behalf of the appellants relied upon a ruling of this Court in the case of Achar Singh vs. The State (4), in order to show that if the statement of a witness is found to be untrue in material particulars and is not a mere embroidery, it should not be acted upon for conviction of the accused. I have considered the arguments of both the learned counsel. I may take up first the case of Kundan and Nandi appellants. They have been convicted under sec. 325 read with sec 34, I. P. C. for the grievous injury on the head of the deceased. All the six eye-witnesses produced by the prosecution have unanimously said that these two accused had attacked the deceased with lathis. According to medical evidence, two injuries by blunt weapon were found on the body of the deceased at the time of his medical examination. One was a grievous injury on the head and the other was a simple injury on the left arm. The evidence of the prosecution witnesses, finds support from medical evidence that two persons might well have given beating to the deceased. It has been argued by Shri Dutt that the prosecution evidence unanimously implicates all the four accused persons, namely Kundan, Nandi, Chhajjoo and Karan. The learned Additional Sessions Judge had no yardstick to find that the injuries were caused by these two persons when he did not believe the evidence so far as Karan and Chhajjoo are concerned. It is true that the prosecution witnesses have made a certain exaggeration inasmuch as they have said that all the four accused gave beating on the head of the deceased. This is against the medical evidence which shows that only one injury was found on the head of deceased. That is why the learned Addl. Sessions Judge could not hold beyond doubt that Karan and Chhajjoo also assaulted the deceased. So far as Nandi and Kundan are concerned, their presence on the spot and participation in the mar peet is not only proved by the prosecution evidence but support is coming forward to it by the statements of these two accused themselves, who said that they were present on the spot and there was a fight between them and the party of the deceased. The learned Additional Sessions Judge's conclusion, therefore, that at least the two accused dealt lathi blows to Ruggi cannot be said to be unjustified. Support is coming forward to the evidence of the eyewitnesses from the medical evidence as well as the statements of the accused. I am, therefore, perfectly satisfied on the evidence on the record in this case that at least Kundan and Nandi gave beating to the deceased. The only question is as to which of the two accused can be said to have caused the grievous injury on the head. It is true that there is no definite evidence for the prosecution to show as to which of the two accused caused the head injuries, and if the provisions of sec. 34 of the Indian Penal Code cannot be attracted to the facts of the present case none of these two accused can be convicted under sec. 325, I. P. C. but they could be convicted only under sec. 323, I. P. C. If the contention of the learned counsel for the appellants that if they gave beating at all, they did so in the exercise of the right of private defence of person as well as property is not accepted. In order to find out if the provisions of sec. 34 can be attracted to the facts of the present case. I would first like to examine whether it is made out by the prosecution that the deceased Ruggi had been in possession of the land in dispute for a number of years before the date of occurrence. In this respect, I have no hesitation in accepting the testimony of the six eye witnesses Ghisa, Kama), Ramji Lal, Malkhan, Nawal and Gir Raj, especially when it is corroborated by the evidence of a respectable and independent witness Mothar Pal Patel. Learned counsel for the appellants has not been able to show why the evidence of Moharpal should not be believed. He simply says that no writing has been produced about the panchayat having given possession of the land in dispute to Ruggi. It is true that no documentary evidence has been produced but it is not very surprising that village people might decide questions between certain parties without giving any written decision, and they might simply make the parties to the dispute agree orally among themselves. The oral evidence of an independent witness in a matter like this cannot be brushed aside unless there are strong reasons for doing so. I, therefore, fully agree with the learned Additional Sessions Judge that from the evidence of the prosecution it has been made out without doubt that the land in dispute had been in possession of the deceased several years before the date of the occurrence and had been in his possession since then. It is true that the prosecution evidence shows that five or six days before the occurrence, Kundan had begun to tether his cattle over this land but the very evidence shows that the deceased had been protesting since the very beginning and he continued his protests right up to the date of the occurrence. In the first place, a stray act of tying cattle cannot be said to have given legal possession to a person, who ties his cattle upon the land in possession of another. When there is an open piece of land, the person in possession does not very much mind that his neighbour has tied his cattle on the land in his possession or has used that land for sleeping purposes in the night or has held feasts etc. over it. These are such acts of stray possession that the person in rightful possession would not take any serious notice of. Then there is the evidence in this case that the deceased never acquiesced in the action of Kundan in tethering his cattle over this land and since the very beginning he had been raising protests. The possession of Kundan, therefore, never became peace ful or settled possession and I do not think that in order to defend such stray posses sion of his. Kundan was entitled to use force with the person in rightful possession. I am supported in this view by a ruling of Lahore High Court in the case of Muhammad Khan vs. The Crown (3 ). It was held in that case that though nobody has a right to dispossess by force a trespasser, who is in settled possession of land and such trespasser is entitled to defend by force his possession even against the rightful owner unless he is evicted in due course of law, he is not entitled to rely on a stray act or even intermittent acts of trespass as giving him a right to possession as against the true owner. The accused had in that case uprooted the crops sown by the real owner and subsequently reaped a portion of it. It was held that this act did not amount to his taking possession of the land against the person in possession. Even supposing that the stray acts of the tethering of cattle of Kundan might be taken to be as those of possession, the right to defend one's property arises only in the circumstances given in sec. 97, clause (2) of the Indian Penal Code. Such a right comes into being to defend the property against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass. In this case, the deceased had simply gone to the land and had protested against the action of Kundan. This act of his came neither within the definition of theft, nor of robbery nor of mischief, nor off criminal trespass. If I simply go upon the land of another and protest against his possession, it does not amount to an offence of criminal trespass. The offence of criminal trespass is committed when one enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property. There is nothing to suggest that the deceased had gone to the land in dispute at the time of the occurrence to commit an offence or to intimidate, insult or annoy any person in possession of the property in dispute. If the simple act of going upon the land in possession of another and raising a protest against his possession be taken to be an offence of criminal trespass, then there would be little difference between civil trespass and criminal trespass. I do not think that in this case, Kundan or Nandi had any right to use any force to the deceased and belabour him. Neither Kundan nor Nandi in the circumstances of this case can be exonerated from their act of beating by virtue of the right of private defence of property. 12. As regards the private defence of person, there is nothing in the evidence to show that any of the prosecution party had done any act which must hav caused reaso-nable apprehension of hurt or grievous hurt to Kundan's party. Excepting the statements of the accused, there is no evidence on the record to show that any of the prosecution party had any the feeblest weapon with them. According to the prosecution evidence the deceased had gone empty-handed simply to raise protests. It cannot be inferred simply because one injury each was found on Kundan and Nandi at the time of the medical examination that those injuries were caused by any of the prosecution party. The accused have failed to elicit anything in the cross-examination of the prosecution witnesses or to prove by their own evidence that there was any apprehension of hurt or grievous hurt form the side of the prosecution party. I do not think that Nandi and Kundan would have escaped with only one injury each if the party of the prosecution were also armed with weapons. If there were only two accused as has been said by the accused and there were a large number of persons in the prosecution party, all armed, numerous injuries would have been expected on the person of these two accused, and as many as five persons of the prosecution party would not have sustained injuries. This clearly shows that it was the party of the accused which was armed and the story about the prosecution party being armed with lathis is not true. According to medical evidence, the two injuries sustained by Kundan and Nandi could be received by a fall also. It may be that after having given beating to the party of Ruggi these two accused might have slipped down and received these injuries by a fall of which the prosecution witnesses had no knowledge. Even supposing that the prosecution witnesses knew how the injuries were received by Kundan and Nandi their testimony cannot altogether be discarded simply because they have not explained the injuries on Kundan and Nandi. It may be that sometimes prosecution witnesses go a little further in their favour than they ought to have gone and try to exonerate themselves but their whole testimony cannot be thrown out simply because they have been responsible for a little embroidery to a story. The entire evidence has to be read with great care and as held in a case of this Court often cited, 'falsehood should be sifted from truth, chaff separated from grain and court should try to come to the truth on a careful and judicial consideration of the evidence. This view was taken in the case of Dhanna vs. The State (5) by a Division Bench of this Court. This view has been reinforced by a decision of another Division Bench of this Court in Achhar Singh vs. The State (4 ). It has been observed that - "in the case of a witness, whose statement has not been found to be wholly true that part, which is not supported by other evidence, should be rejected while the part which is corroborated by other reliable evidence need not be thrown out. " It has been stressed that - "the duty of the court is to sift the evidence and find out the truth and not to throw out the testimony simply because a witness is found to be speaking untruth in one or more particulars. Finally it has been observed that - "no hard and fast rules for guidance in the believing or disbelieving testimony of a witness can be laid down and it would always depend on facts and circumstances of each case for the court to rely upon or reject the evidence of a certain witness or witnesses. " In a recent case of Jumman vs. The State of Punjab (1), their Lordships had a case before them in which the injuries received by the accused were not explained by the prosecution Their Lordships did not throw the evidence for the prosecution on this ground and observed that the suppression of the injuries on the accused could not make the evidence of the prosecution totally unbelievable. I am, therefore, convinced that the lower court was not unjustified in accepting the prosecution evidence so far as the beating given to the deceased is concerned in the circumstances of this case. I agree with the lower court that the provisions of sec. 34 of the Indian Penal Code will apply to the facts of the present case. Both the accused came armed with weapons on the spot on the protest having been raised by the deceased and fell upon him and caused him injuries. They were sitting at the same place before the occurrence, and there was sufficient opportunity to them of prior consultation. Certain principles have been laid down by the Division Bench of this Court in the case of the State vs. Fazal (6 ). In that case, there was no direct evidence to show that the accused had come after consultation among themselves. Nothing was said by the two accused when they went into the house of deceased or after they had come out from which it might have been inferred that they were acting with common intention. The evidence was that they had hit the dog of the injured and driven it away. Then they both went together into the house injured and came out shortly afterwards armed with a spear. It was held that they had an opportunity of arriving at a pre-concert when they where inside the house of Imamuddin and a presumption could, therefore, be raised that what they did later after coming out of the house, was in pursuance of their common intention unless this inference were destroyed by any conduct on their part. In this case, the fact that both the accused were at the bungalow of Kundan before the occurrence took place and that both of them came to the spot on the protest having been raised by the deceased and as soon as they came there,they gave him beating with lathis, decisively points to the common intention of the two accused. It does not, therefore, matter whether one or the other of them caused a grievous injury and the other only a simple injury. Both of them could be convicted under sec. 325 read with sec. 34 I. P. C. of causing grievous injury to Ruggi. I have no reason to go against the finding of the learned trial court that both these accused were guilty of an offence under sec. 325 read with sec. 34 I. P. C. Coming to the case of Chhitar, Sardar & Ghansida, I am not able to support the judgment of the lower court. They have not been convicted by virtue of sec. 149 I. P. C. or sec. 34 I. P. C. and have been convicted under sec. 323 I. P. C. for their individual acts. They are held to have caused simple injuries to Kamal, who has not been able to show that it is these three accused, who caused him any injury. Simply Malkhan and Ghisa to whom no injury was caused by these accused have stated that the accused caused injuries to Kamal but their evidence is shaken by the medical evidence which shows that only one injury was found on the body of Kamal at the time of the medical examination. This injury could be attributed only to one of the accused and I am not at all able to find out from the evidence as to which of these three accused caused that injury to Kamal. Under the circumstances of the case, the conviction of these three accused under sec. 323 I. P. C. cannot be maintained: . Lastly, coming to the sentence on Kundan and Nandi, I may say that the lower court has erred on the side of leniency. They have been given only 18 months' rigorous imprisonment and a fine of Rs. 100/ - which cannot in any way be said to be excessive. The appeal so far as Kundan and Nandi are concerned, is dismissed. They are on bail and shall at once surrender to it to serve the un-expired portion of their sentences. The appeal so far as Chhitar, Sardar and Ghansida are concerned, is allowed. Their convictions and sentences are set aside and they are acquitted. Under the circumstances, they need not surrender to bail. . Fines, if paid, shall be refunded to them, . ;