- (1.) THIS is an appeal against the judgment of the learned Additional Session Judge, Merta, dated 24 1-76 by which accused appellants Mana, Ramkaran, Mst. Bhurati and Mst, Panchuri have been convicted and sentenced as follows, **** TABLE **** 1. Mst. Bhurati) u/s) 302/149
(2.) MST. Panchuri Mana Ramkaran ) I. P. C. 325/149 I. P. c 148 I. P. C 447 I. P. C 323/149 I. P. C ) 302/!49 ) I. P. C ) 325/149 I. P. C. 323 I. P. C. 323/149 I. P. C 447 I. P. C 147 I. P. c Imprisonment for life and a fine of Rs. 50/- 1 year rigorous imprisonment and a fine of Rs. 25/- 6 months R. I. 1 months R. I. 3 months R. I. Imprisonment for life and a fine of Rs. 50/- 1 year R. I. and a fine of Rs. 25/- 3 months R. I. 3 months R. I. 1 month R I. 4 months R. I. 2. According to the prosecution, a report was lodged by Lachman on 26. 5. 74 at 4 50 pm. at police station Thanwala. It was alleged that an agricultural field known as Pilwawala situated in the 'rohi' of village Alniawas was being ploughed by Lachman, his father Dhanna, his brothers Tiloka and Bali and employee Panchu on the morning of 26th May, 1974. As soon as they started Ploughing the field which was found to have already been ploughed during the night, Kana, Ramkaran, Hira, Nanu, Rajuri, Bhurati and Panchuri came there armed with 'lathis' and 'kassis'. Ramkarn asked Lichman and his father Dhanna to stop ploughing the field and on the complainant continuing to plough the field, Ramkaran gave a lathi on the back of Balu MST. Panchuri, MST. Bhurati and MST. Rajuri inflicted Kassi blows on the head of Balu as a result of which, Balu fell down Lichman sustained simple injuries and Tiloka was also beaten along with Dhanna by Ramkaran and Herka. Deena, who tried to intervene, was also beaten. Balu succumbed to his injuries. The police registered a case under Sections 302, 307, 147, 148, 149, 447 and 323 IPC. After investigation, challan was presented against all the accused in the court of Additional Munsif and Judicial Magistrate, Merta for the commission of the above mentioned offences. Nanu died during the committal proceedings and the other eight persons were committed to the court of Sections Judge, Merta. The eight accused faced trial on the various charges mentioned above, pleaded not guilty. Rajori, Durga and Harkha pleaded alibi. A few of other accused pleaded right of private defence and specifically alleged that the complainant party was aggressor. The learned Additional Sessions Judge acquitted four accused persons namely; Rajori, Durga, Harkha and Srikishna holding that the presence of these four accused persons at the place of occurrence and at the time of occurrence was not established beyond reasonable doubt. He held that the other accused persons Ramkaren, Mana, Bhurati and Panchuri and their companion Nanu were aware of the fact that in the ordinary course, the complainant party would be coming to plough this field a day after it bad rained. Inspite of the above fact the accused went to the field armed with lathis and kassis, their common object being to prohibit the complainant party from ploughing the field and to inflict injuries on them. He was of the opinion that the right of private of person or properly, if available, was only available to the complainant party and not to the accused party and these accused persons were trespassers. He came to the conclusion that two of them, namely, Mst. Bhurati and Mst. Panchuri inflicted grievous injuries by sharp edged Kassi on the head of deceased Balu which resulted in his death on the spot. The Judge ignored the important feature of the case that the complaint party did not explain the injuries caused to the accused persons during the alleged occurrence and brushed it aside saying that the court had to disengage the truth from falsehood and therefore the evidence cannot be discarded on the ground that the prosecution had failed to explain the injuries caused to the four accused during this occurrence.
(3.) AGGRIEVED from the above judgement of the learned Judge, the four appellants have mainly pressed this appeal on the short point that even if the occurrence as alleged is assumed to be true, then also the accused are entitled to acquittal on the ground that they did so in exercise of the right of private defence of person as well as property. Having heard the arguments of Mrs Rnue Chatterjee on behalf of the accused and Mr. A. K. Mathur Public Prosecutor, we find that the appeal must succeed on this short but the surest ground that all the four accused are entitled to the benefit of the right of private defence embodied in Sections 100 to 103 of the Indian Penal Code. The first and foremost point which the prosecution was required to prove in this case and which it miserably failed to prove, if we may say so, is the possession of the complainant party of the field in dispute on the fateful day of the occurrence. Whereas the prosecution has failed to produce any documentary evidence to prove that the land in dispute belongs to the complainant party and that it was being cultivated by them, the accused party have produced clinching documentary evidence consisting of Jamabandi Khewat Khatuni of village Alniawas Ex D 6, revenue receipts Ex. D 7 and Ex. D 8, copy of Girdawari Ex. D 18 and copy of the plaint filed by Ramkaran in the court of Assistant Collector, Merta Ex. D 19 These documents prove that the field in dispute was not only under the Khatedari of the accused party but it was in their cultivatory possession also, since last many years. ;