Arjun Singh and Another vs State of H.P.

Bhawani Singh, J.—This appeal arises out of the judgment of Sessions Judge, Kangra, dated 14-5-1984 in Sessions Case No. 4 of 1983. By this judgment, the learned Sessions Judge, has convicted the Appellants for offences under Sections 302/307/324 of the Indian Penal Code; Section 25 of the Indian Arms Act and u/s 302 of the Indian Penal Code sentenced them to imprisonment for life and to a fine of Rs. 5000/- each and fine, on recovery, has been directed to be paid to the dependants of Amar Jit and Sukh Ram in equal shares. They have been sentenced to five years rigorous imprisonment for offence u/s 307 of the Indian Penal Code and to three years rigorous imprisonment for offence u/s 324 of the Indian Penal Code and 6 months under Arms Act. Appellant, Arjun Singh, has also been sentenced for a period of six months u/s 25 of the Indian Arms Act. Accused Savitri Devi alias Nirmala Devi, Malka Devi, Zulmi Devi and Bachitar Singh have been acquitted of the offences. The State has not filed any appeal against these acquittals.

The prosecution case, in brief, is that the complainant party belongs to Chambi Tunder, Mauja Jaisinghpur and the accused to village Dunpura of the same Tehsil. A dispute about the cutting of the grass is continuing between the parties for the last many years. The accused claim that they are in possession of the land in dispute since 1977 and had been cutting grass on this area, and the area in dispute falls within Tikka Mungal. In nutshell, it can be said that the tiff between the parties is regarding the land falling on the boundary of Tikka-Mungal and Benchambi falling in Khasra Nos. 5, 7 and 8 in the ownership of the Government of Himachal Pradesh and the villagers have Bartender rights.

It is further alleged that on 24-9-1982, Appellant Arjun Singh along with Hardaman Singh, Malika Devi, Zulmi Devi and Savitri Devi came to Benchambi at about 10 a.m. after they had formed an unlawful assembly. At this time, Appellant Arjun Singh was carrying a single barrel breech loading gun whereas Appellant Hardaman Singh had a sword. Smt. Malika Devi had a Gandasha while other two ladies were carrying lathes.

Shri Rasil Singh, Hoshiar Singh, Jhonfi Ram, Durga Dass, Paras Ram, Pingla Devi, Laxmi Chand, Om Parkash, BimlaDevi, Kaushalya Devi, Sukh Ram and Amarjeet Singh were cutting grass at that time in Benchambi forest. Appellant Hardaman Singh raised a lalkar that the villagers of Benchambi will be thought a lesson for cutting the grass. Immediately, afterwards the Appellant Arjun Singh opened fire with the gun and with this fire Sukh Ram fell dead. The second fire hit Amarjeet Singh and the third caused injuries to Rasil Singh, Hoshiar Singh and Jhonfi Ram. Appellant Arjun Singh, when attempted to fire the fourth time, Durga Chand caught hold of the gun and at that time Appellant Hardaman Singh gave a sword blow on the arm of Shirt Durga Chand who sustained grievous injuries. Smt. Malika Devi, Zulmi Devi and Savitri Devi shouted to finish the complainant party.

This incident was reported to the police, Police Station Lambagaon, by Paras Ram (P. W. 7), one of the members of the complainant party, on 24-9-1982 at 12.45 p. m. In the First Information Report (Ex. P.N.), it is stated that the complainant party, in habitants of village Chambi, had rights of Bartender in this land. They graze their cattle and cut grass from this land since long. From the year 1977, Shri Bachitar Singh, Hardaman Singh and Arjun Singh, residents of Don Ropa had been trying to take a portion of this hamlet land into their possession upon which revenue and forest Departments had demarcated this land several times but without carrying for this demarcation, Arjun Singh etc. had been trying to take possession of this land. The residents of Tika Chambi (complainant-party) continued grazing their cattle and cutting grass on this land as usual. Hardaman Singh etc. had been claiming the ownership of this land and had applied for the correction of the revenue entries before the Settlement Officer, Dharamshala. The Settlement Officer, Dharamshala, had directed the Forest Department that tills the decision; nobody may be allowed to interfere in this land in any manner. As a result of this order, nobody had cut grass and grazed their cattle. On 18-9-1982, Hardaman Singh etc. had started cutting grass on this land.

After having come to know about this, Hardaman Singh along with Amarjeet Singh and the villagers, namely, Durga Chand, Sukh Ram, Hoshiar Singh, Jhonfi Ram, Rasil Singh, Ravinder Kumar, Om Parkash, Bhagwan Dass, Madho Devi, Parvati Devi, Kaushalya Devi, Parkasha Devi had gone to this place to cut grass and started doing so. At about 10 A.m. Haradaman Singh armed with Sword, Arjun Singh armed with a breech loading gun, Zulmi Devi and Savitri Devi, armed with sticks, and Malka Devi armed with Gandasa, came to the spot and on reaching there, Hardman Singh retorted sarcastically that he would teach them a lesson for cutting grass and after saying so Arjun Singh started firing on them. After he had fired thrice and was ready to fire further, Durga Chand caught hold of his gun whereupon Hardaman Singh started giving blows to him with his sword. With the gun shots, Hoshiar Singh, Rasil Singh, Jhonfi Ram, Amarjeet Singh sustained injuries and Sukh Ram succumbed to the same on the spot. Durga Chand also got injuries as a result of sword blows by Hardaman Singh. The accused ran away with their weapons from the spot.

The police commenced investigation, got the injured medically examined, prepared inquest reports with respect to the death of Sukh Ram and Amarjeet Singh (Ex. PK and PJ); recovered the gun, sword, bandolier gun license, Gandasa lathes, blood stained earth, stone, clothes etc.

The version of the accused, as seen from the trend of the cross examination and their explanation u/s 313 of the Code of Criminal Procedure, is that the land in question alls in Tikka Mungal and not in Tikka Chambi. This land, they assert, is in their possession since 1977 and they are cutting grass out of it since then and they have raised this question with the Government at the appropriate level and some relief has already been allowed to them vide order dated 3-9-1982. However, the matter is still being pursued further and on 24-9-1982 at about 7.30 a.m. when the Appellants had gone to cut the grass on this land, situate above the Dhank (Mark-X) they heard the voice of 2/3 persons from the ridge side shouting that the accused should be finished and not allowed to go on that day. It was noticed that many persons were carrying lathis, bhalas and dramatis, while coming from Benchambi side at the ridge. They started advancing towards them while holding out threats. Their intention to kill them was apparent, by their Lalkaras: "Aaj Tumhe Ghas Katne Ka Maza Chakha Dete Hain Aur Into Mar KarDhankSe Niche Phenk Dete Hai. Mar Do, Mar Do" Appellant Arjun Singh states that he got perplexed and picked up his gun. He warned the villagers not to advance towards them. However, they threatened to finish them and were throwing stones. Since there was no place to retreat on account of the Dhank behind them, he fired two shots in the air to scare them away but since they continued to attack them, he fired the third shot. Meanwhile, Durga Chand attacked his brother Hardaman Singh with darat who had only a darati with him. In order to save him, he fired Anr. shot. Appellant Hardaman Singh also states that Durga Chand attacked him with his darat and when he found that he was not to be spared, he hit Durga Chand with his darati. It is necessary to examine the virsion given by the prosecution witnesses.

Dr. D.S. Chandel (P.W. 1) is the Medical Officer, In charge, Primary Health Centre, Lambagaon. He examined Jhonfi Ram, Rasil Singh and Hoshiar Singh. Number of gunshot injuries was noticed on their person. However, they were opined to be simple in nature. They appear to have been caused by pellets from a long distance.

Dr. Suresh Rana (P.W. 3) examined Durga Chand and found three injuries on his left hand and right arm. According to him, injury No. 2 on his person was grievous as the same had resulted in contraction of right hand rendering a permanent disability. He opined that the injury could be caused by the sword (Ex. P. 9).

Dr. S.C. Kapila (P.W. 6), Medical Officer, Civil Hospital, Palampur, conducted the postmortem examination of Amarjeet Singh on 25-9-1982 at 1 p.m. According to him, the death was caused due to the injuries to heart, lung (left), and liver leading to hemorrhage, shock and death. These injuries were sufficient in the ordinary course of nature to cause death. On the same day, at about 2.30 p.m. he conducted the postmortem of Sukh Ram, as well. He found neither blackening nor tattooing of the skin around the limbs. In his opinion, the cause of death was injuries to lung (left) and heart leading to hemorrhage, shock and death. The same were sufficient in the ordinary course of nature to cause death. Ex. PL is the postmortem report and Ex. PM is the inquest report. The distance of the person who fired the gun shot and Amarjeet Singh and Sukh Ram was almost equal. It may be 5 to 7 feet.

Paras Ram (P. W. 7) is one of the complainants and an eye witness to the occurrence. He states that he had gone to Benchambi forest, owned by the Government, for cutting grass. The villagers of Chambi are cutting grass from this forest besides grazing their cattle since 1977. He further states that Bachitar Singh and Her Daman Singh started asserting their right to a piece of said land. They tried to take into possession the said piece of land and the Forest Department and the Revenue Department demarcated the land. The accused did not pay any heed to such demarcation and every rainy season they used to extend their possession by stopping them to cut the grass. The accused has also fenced that piece of land but they continued to cut the grass. The accused also asserted that they were owners of this land. The accused had applied for the correction of revenue entries before the Settlement Officer who had directed the Forest Department that, nobody should be allowed to cut the grass from the disputed land and the villagers of Chambi as well as the accused had stopped cutting grass or grazing their cattle.

On 18-9-1982, accused Hardaman Singh and Ors. started cutting grass from the disputed land. Three days thereafter on 22 or 23rd September, 1982, he alongwith Amarjeet Singh, Sukh Ram, Rasil Singh, Jhonfi Ram, Hoshiar Singh, Om Parkash, Bhagwan Singh and with women folk had gone there for cutting grass. They cut and removed the grass on that day and on the subsequent day also. On 24-9-1982, all of them had gone at about 9.30 a.m. to cut grass accompanied by Parvati Devi, Kaushalya Devi and Madho Devi. The Appellant, Arjun Singh, with gun, and Hardaman Singh, with a sword, came there, with Malka Devi with a Gandasa, Zulmi Devi and Savitri Devi with lath is. Hardaman Singh raised a lalkara that they would teach a lesson for cutting the grass and immediately opened fire. The first shot was fired at Sukh Ram who fell dead. The second shot hit his son Amarjeet Singh, who also fell down. The third shot hit Rasil Singh, Hoshiar Singh and Jhonfi Ram. They were seriously injured. Appellant Arjun Singh was caught by Durga Chand at a time when he was preparing to fire the fourth Shot. On this, Hardaman Singh struck him with sword 3/4 times. Durga Chand also fell down and the accused went away from the spot.

In his cross-examination he states that he did not tell the police that the dispute took place on the boundary of Tikka Mungal and Benchambi. Portion A to A in the inquest report Ex. PK has wrongly been recorded by the police. He admits that the application referred by the accused before the Settlement Officer pertains to the disputed land and he did not know as to whether the Settlement Officer had decided the case in favor of the Appellants. He further admits that the accused were asserting their right over the land which is above the dhank and right up to the ridge and according to the accused, beyond the ridge, village Benchambi starts. He further states that he did not know that the Settlement Officer had declared this part of the land from dhank to ridge with Tikka Mungal. He further states that Durga Chand has his motor workshop in Delhi. He came to the village 3/4 days prior to the occurrence. His son Amar Jeet Singh used to accompany a truck to Bombay Hoshiar Singh is employed in a Hospital at Delhi. He states that they were carrying dramatis only and not bhalds and the accused were at a higher altitude at the time of firing at them. The accused had crossed Chad Sukahar as their houses fall on the other side of the khad and are visible from the disputed land. He further states that after the second fire, they started running towards the boundary pillars which were at a higher altitude. However, he continued seeing the third shot aimed at Rasil Singh, Jhonfi Ram and Hoshiar Singh and sword blows given to Durga Chand. Finally, he says that he had gone to the spot with the police after 2/3 days of the occurrence.

Durga Chand (P. W. 8) is Anr. eye witness. He states that he works as a Mechanic at Delhi. On 24-9-1982, he had gone to cut the grass from the land on which his ancestors used to cut grass and graze cattle. There he had gone all alone at about 10 a. m. and all of a sudden Hardaman Singh shouted from the top side of the hill that he will finish them all and teach them a lesson for cutting the grass. He was accompanied by Arjun Singh and number of ladies. He supports Paras Ram (P.W. 7) as to the manner of firing and injuries to the victims. He states that he did not know as to how the accused had reached at the top of the hill. He, however, expressed his ignorance as to the passage through Sukahar Khad. He denies the suggestion that they had come to the spot after holding a meeting and carrying arms with a view to forcibly disposes the Appellants. The distance between them and the accused was 8 to 10 feet. He denies the suggestion that Hardaman Singh gave darati blow and not darat blow with a view to save himself from the darati blow of Durga Chand.

Hoshiar Singh (P. W. 9) is also an eye witness. He had also gone with Ors. to the place of occurrence, to cut grass. He also asserts the right of his villagers to cut the grass and graze cattle on this area although he admits that other villagers were also cutting grass. He also supports (P.W''s 7 and 8) in his statement. He states that he did not know how the accused reached the ridge. There is no direct path from the khad to the ridge. However, he states that after the occurrence he had seen the path constructed by the accused which connects the ridge from the khad. It takes about 25 to 30 minutes to reach the ridge from the khad from this direct path. He denies the suggestion that they had reached the spot at a time when Hardaman Singh and Arjun Singh were already cutting the grass near the dhank and the accused were attacked by them with darats and bhalas after openly asserting that they would kill the Appellants and throw them down the dhank.

Shri Jhonfi Ram (P.W. 10) is also an eye witness. He supports other eye witnesses as to the manner of assault by the Appellant. As to the path, he also states that the same must have been constructed by the Appellants prior to the incident. He admits that after the restraint order, the accused party started cutting grass from 18th September, 1982 and they also started Putting grass from 21st September, 1982 although he had not disclosed to the police that they were cutting the grass prior to 24th September, 1982. He states that the distance between Amarjeet Singh and Sukh Ram and Arjun Singh was 8 meters. He denies the suggestion that they had gone to the spot with a view to take forcible possession of the land where on the Appellants were already cutting grass at that time. He also denies the suggestion that they were carrying darats and bhalas etc.

Shri Ram Rath (P.W. 13) states about the recoveries of gun, sword, bandolier with live cartridges, gun license, three empty cartridges of 12 bore and two other live cartridges. He further states that he had seen the path from the khad to the ridge for the first time on the date of the occurrence. It takes 20 to 25 minutes from the khad to reach the ridge. He had been going to the place but through a different path. He further states that about two months back, the police had gone to the spot where it was demonstrated to the witnesses as to how the incident took place and the place where Sukh Ram was killed, was also pointed out by the police.

Rup Lal (P.W. 17) states that since 1977 Chambi people had dispute with the accused party who claim that they are owners of Benchambi whereas his villagers claim it to be a hamlet.

Brahmi Devi (P.W. 20) is also an eye witness. She had also gone to cut the grass in Mungal forest along with Ors. . She had been declared hostile by the prosecution. She states that the Appellants Arjun Singh and Hardaman Singh were carrying gun and sword and they had threatened them with dire consequences and meanwhile their ladies intervened and asked them to go and not to interfere with the ladies. Bachitar Singh was not with them. This witness has not supported the prosecution version of the case.

Pingla Devi (P.W. 21), an eye witness, also states that the ladies with Arjun Singh and Hardaman Singh were not carrying any weapon. She is of no assistance to the prosecution.

Shri Rasil Singh (P.W. 28) had also gone to cut grass along with Ors. and supports other witnesses as to the manner of incident.

Shri Lakshmi Chand (P.W. 29) is a registered Dental Surgeon. He has his clinic at Jaisinghpur. He alleges that he had also gone to cut the grass along with Ors. on this day. He states that as soon as the Appellant, Arjun Singh, started firing, he concealed himself behind the bushes and saw the entire occurrence from there and left the place when the Appellants were still there.

Om Parkash(P.W. 30) is also an eye witness and sup ports other witnesses of the prosecution. He states that the deceased, Sukh Ram, was his paternal uncle.

Bimla Devi (P.W. 31) has been declared hostile when she stated that she did not see the person at whom Appellant Arjun Singh had fired. She admits that there is litigation between the Appellants and the people of Benchambi for the land where the occurrence took place.

Kaushalya Devi (P.W. 32) has also been declared hostile when she says that she was cutting grass along with Sarla and they did not see any other person and as soon as the firing started, she ran away from the place She denies having any knowledge whether Parkashoo, Bimla and Madho Devi had gone to cut grass on that day at that time and that Paras Ram, Durga Chand, Amarjeet Singh, Hoshiar Singh, Rasil Singh and v. Jhonfi Ram had gone for cutting the grass. She further states that she did not know who else was cutting grass besides her and her husband at a short distance. She is the wife of deceased Sukh Ram. She states that she did not see him receiving the injuries nor she knew whether the gun was fired from the ridge,

Sansar Chand (P.W. 38) is the Patwari. He states that Benchambi had been transferred from his circle Tika Mungal with effect from 20-4-1982 and that the land pertaining to Benchambi forest has been recorded as Khasra No. 5/4. According to the revenue record, Khasra Nos. 5, 7 and 8 are owned by the Himachal Pradesh Government and are in possession of the Forest Department. Copy of the Misal Haquiat is (Ex. PAC). The bartandaran have a right over this land. He had prepared the site plan (Ex. PAD), with marginal notes thereon, on the basis of the scale under the instructions of the Sub-Inspector. On 25-9-1982, demarcation of Benchambi and Mongal was effected by the Naib-Tehsildar and Kanungo and he was associated in the said demarcation. The spot where the occurrence took place, for which he was asked to prepare a site plan by the police, is within Benchambi. The boundary of Mongal is about 60 meters from that spot.

In cross-examination, he states that he was charge-sheeted for the misconduct for having demanded money from one Bhagwan Dass, who had sent it by money order. He remained under suspension for 10-15 days in view of that complaint. Tika Mongal is in different Patwar Circle. When demarcation was effected by the Naib-Tehsildar on 25-9-1982, Patwari of Tika Mongal was not present- However; the revenue record of Tika Mongal was furnished. There is no mention of demarcation in his rojnamcha. On 8-9-1982, accused Bachitar Singh had brought order of Settlement Officer whereby the land pertaining to Khasra Nos. 5/1, 5/2, 5/3, 7/1, 7/2 and 8/1 of Tika Chambi was transferred to Tika Mongal. As far as the land pertaining to Khasra Nos. 5/1, 5/2,5/3, and 7/1 is concerned, the same is Kharetar. The land in respect of Khasra No. 5/4 is forest. However on physical verification, he had found bushes and grass in Khasra No. 5/4. From the order of the Settlement Officer he could infer that there was dispute between the villagers of Benchambi and Tika Mongal. No record of measurements was prepared or retained showing the permanent points from where the, demarcation was affected. It is riot correct that the land between the dhank and the ridge which is Kharetar is part of Khasra Nos. 5/1,5/2 and 5/3.

Shri Krishan Lal (P.W. 39) was the Station House Officer, Police Station, Lambagaon. He states that he-recorded the statements of Paras Ram (P.W. 7) u/s 154 of the Code of Criminal Procedure (Ex. PN) at 12.45 P.M. on 24-9-1982. A u/s 302 of the Indian Penal Code was registered and the investigation was started. He prepared injury statements of the injured, namely, Hoshiar Singh (Ex. PC/1), Durga Chand (Ex. PD), Jhonfi Ram (Ex. PA/1) and Rasil Singh (Ex PB/1). He prepared inquest report (Ex. PK) regarding Amarje Singh, witnessed by Paras Ram and Roshan Lal and the djadrody was then sent for postmortem examination through constable Dewan Chand. Before sending the dead body for postmortem examination, photographs Ex. P-58 to (Ex. P-60) were taken. Thereafter, he proceeded to the spot of occurrence, where the dead body of Sukh Ram was lying. Inquest Report (Ex. PM) was prepared and photographs were also taken which are (Ex. P-61 to Ex. P-63) and arrested accused Hardaman Singh, Arjun Singh and Bachitar Singh on 25-9-1982. After arrests, accused Hardaman Singh made a disclosure statement u/s 27 of the Evidence Act and as a consequence thereof sword (Ex. P.9) was recovered. Sketch of the sword was prepared which is Ex. P-S/l and it was taken into possession vide memo. Ex. PS/2. The same was packed and sealed. Similarly, gun (Ex. P-35) and Bandolier was recovered through disclosure statement (Ex. DT) of Arjun Singh. The same was also packed and sealed vide recovery memo. Ex. PT/2. The Bandolier (Ex. P. 50) and live cartridge (Ex. P. 51) were also recovered. Zulmi Devi, accused, had handed over gun license of Bachitar Singh (Ex. P. 52) and the same was taken into possession vide memo (Ex. PU.) He had prepared rough site plan of the spot which is Ex. PAE with marginal notes thereon. Stone (Ex. P.56), bloodstained earth(Ex.P-57) were taken into possession vide memo. Ex. PW and memo. Ex. PX. They were packed and sealed. From the spot three empty cartridges (Ex. P-53 to Ex. P-55) and also two live cartridges were also taken into possession vide memo. Ex. PV. They were also packed and sealed separately. Grass (Ex. P. 72) was also taken into possession vide memo. PAF- Shrimati Malkan Devi, Zulmi Devi, Nirmala alias Savitri were arrested on 26-8-1982 and on 28-8-1982, Zulmi Devi had made disclosure statement (Ex. PAD) u/s 27 of the Evidence Act that she had concealed one lathe and in pursuance of this statement and in the presence of Pramodh, Siridhar, lathe (Ex. P-38) was taken into possession vide memo. Ex. PAH. It was packed and sealed. Similarly, lathi (Ex. P-37) was recovered at the instance ofNirmala through her statement (Ex. PA J). The same was also packed and sealed. Gandasa (Ex. P-36) was also recovered from Malka Devi through her statement (Ex. PAL). The same was packed and sealed vide memo. Ex. RAM. Number of articles, like clothes of Hoshiar Singh, Jhonfi Ram, were taken into possession and packed and sealed separately. Similarly, on 29-8-1982, similar procedure was followed relating to the clothes of Rasil Singh. The gun as well as the live and empty cartridges were sent to the Ballistic Expert, Chandigarh, who reported (vide report Ex. PAQ) that these were fired through gun Ex. P-35, and the blood stained articles to the Chemical Examiner, Patiala, and that report is Ex. PAP. After the investigation of this case, the challan was filed.

The Investigating Officer further states that across the had there is agriculture land of the Appellants and then there is dhank and then the place of occurrence (Mark ''X'' clarifies the position). The distance between the top of the dhank and the ridge is about 80 to 85 meters. Point B in the site plan (Ex. PAE) is about 50 meters from the top and of the dhank. The top of the dhank is shown as. The distance between point B and the ridge has not been measured but according to the rough estimate, the distance may be 30 to 40 meters and the distance between point A to the ridge is 24 meters. The distance between point A to point B is 20 meters. The distance between B to Y is 22 meters. At point ''A'', the dead body of Sukh Ram was found. At point ''B'', empty cartridges were found. The blood stained earth was found near point B. Point-T is the place where Hoshiar Singh, Rasil Singh and Jhonfi Ram were standing. The accused were stated to be standing at point ''B''.

A copy of the First Information Report was sent to the local Magistrate through constable Hardyal Singh and the same was received by the court on 25-9-1982. There was no time to send the First Information Report on 24-9-1982. The first information report was handed over to constable Hardyal Singh who may have proceeded on foot as no bus was available from Jaisingpur on 24-9-1982. He admits that the First Information Report for an offence u/s 302 of the Indian Penal Code is to be dispatched immediately to the local Magistrate and states that he had sent the same in time and there was no question of making entry on the outer cover of the same explaining the delay. He denies the suggestion that the First Information Report was manufactured by him and Jagjit Kumar Dy. S.P. in the early hours of 25th September, 1982. He further states that the demarcation of the land was effected on 25-9-1982 by the Naib-Tehsildar in the presence of the Patwari. He did not see Patwari of Mongal at that time. As he did not have any experience of revenue demarcation, therefore, he could not say in what manner the same was done and from where it was started. He further states that large quantity of grass which was already cut, was found lying at the spot but he did not take the same into possession except four bundles by way of sample.

This is the evidence led by the prosecution in this case. Now, the question is whether the prosecution has been able to prove the case against the accused.

The prosecution did not succeed in its efforts to prove the case against Bachitar Singh and the ladies. There is no evidence as to their participation and the learned Sessions Judge has rightly acquitted them of the charge. The State has also not come up in appeal against these acquittals. Their acquittals indicate that the version of the complainant-party as to their participation was thoroughly wrong and baseless. They were included simply to create commotion and to cause them harassment. The result is the prosecution story not only slides into the field of inexactness but also creates doubt as to the genesis of the crime.

Now, after the exclusion of Bachitar Singh and the ladies, only the Appellants are left in the field as against the complainants who are more than 15 in number.

There is no convincing evidence to show that the complainant-party was at the place of the occurrence first in point of time. On the other hand, there is evidence to show that the accused were and could be at the place of occurrence first in point of time. It is in evidence that the accused had started cutting the grass with effect from 18th of September, 1982 and the complainants had come to know of this fact. Instead of approaching the authorities against the action of the accused for which they had enough time, they allege that they also came to cut the grass on 24-9-1982. Their combination and number indicates that their sole object was to throw out and finish the accused -party for having cut the grass from this land. It is in evidence that there is a passage from the village of the Appellants to the place of occurrence through the had and it takes about 25 minutes for the Appellants to reach the place of occurrence. The assertion of the prosecution that they came to the place of occurrence from the side of the ridge is absolutely unbelievable. The prime object of the Appellants was to cut the grass as they had been doing so since 18th September, 1982. In case they had apprehended any danger from the side of the complainants, they would have certainly taken many more men from their village along with them. Therefore, knowledge as to the cutting of grass and the presence of the Appellants at the place is attributable only to the complainants, that is why they came in numbers with obvious reasons in their minds after making preparations therefore although they may not have apprehended that the Appellants would be there with a gun. On this aspect, the conclusion, therefore, is that the Appellants are in possession of the land in question. They had started cutting the grass on this land from 18th September, 1982. There is a long pending dispute as to the enjoyment of rights over this land between the Appellants and the complainants. The matter is pending with the department concerned although some relief gone in favour of the Appellants. However, there is no evidence to indicate that the authorities, after visiting the spot, specifically kept aside this area from the areas which were ordered to be included in favour of the villagers of Tika Mungal. It is in evidence that despite past demarcations and the order against the cutting of grass in the area by the parties, the accused still continued to cut the grass during every rainy season by asserting their right to do the same. The accused were at the spot first in point of time and the complainants came later to throw them out of this land.

The firing of the gun by Arjun Singh is an admitted fact. The difference is only of number of shots fired towards the complainants. The use of sword, gandasa and lathes is disputed. In my opinion, rightly so, as Hardaman Singh appears to have only darati like Durga Chand. Moreover, acquittals of ladies from whom recoveries of gandasa and lathes were made, makes all the recoveries highly doubtful and so also the use of sword and its recovery from Hardaman Singh. It can be said that he used sickle to cause injuries to Durga Chand. Use of sickle by him is otherwise possible as he had gone to the place to cut grass. The Appellants assert that the situation was such that they had no option but to fire as the complainants were bent upon killing them, throwing them through the dhank and taking possession of the property over which they had rights since 1977. On the other hand, the complainants say that they were in possession of the area and were cutting the grass. The Appellants came from the ridge side and started firing at them and killed Sukh Ram and Amarjeet Singh in addition to causing serious injuries to four other persons. The act of the accused, they allege, was intentional, pre-meditated and, therefore, strictly punishable u/s 302 of the Indian Penal Code. Let this aspect be examined.

Shri M.G. Chitkara, learned Counsel for the Appellants, has very strenuously contended that no offence has been committed by the Appellants in the light of the facts and circumstances of this case. Elaborating his submissions, Shri M.G, Chitkara, submits that the prosecution has failed to disclose the real genesis of the offence. With zeal to involve the Appellants in this case, the Police has concocted this false story. The basic case of the prosecution, he urges, has failed on account of the acquittal of Bachitar Singh and the ladies. This fact proves that the prosecution wanted to involve them in this case baselessly and simply to turn a simple case into a serious one by indicating the participation of a larger number of persons as compared to the complainants. The story of the prosecution, it is further contended, has lost its credibility as to the cause of incident, the manner in which the same took place as well as the responsibility for the same. The Appellants had every right in the circumstances of this case, to defend their body and property from the imminent assault by the complainants, armed with sickles, and the apprehension in their minds was apparent, genuine and obvious. Had they not retaliated in the manner and to the extent, they would have been killed and dispossessed from the property in question. Put in these circumstances, the only thing which the Appellants could do was to fire with the weapon they had and the number of shots had to be increased in view of the conduct of the complainants in sticking to the ground despite one or two firings. Use of sickle, instead of sword, is admitted.

These submissions of Shri M.G. Chitkara have same force in view of the detailed discussion as to the facts and circumstances already discussed hereinabove and it can, therefore, be said that the Appellants had some justification to act in the manner they did to protect their body as well as the property from the complainants who were many in number as compared to the Appellants. Besides, it appears that the complainants had prior determination to resort to such an action. Many of the complainants, it appears, had dome to the village for this purpose alone although they were working at different places. It is also noticeable that many of them are not expected to cut grass, still they are alleged to have come there with sickles for cutting grass. These facts go to show that the only object of the complainants was to hit the Appellants. In the fact situation of this case, it cannot be said that the act of the Appellants was thoroughly blameworthy and, therefore, punishable u/s 302 of the Indian Penal Code.

In view of the respective contentions of the parties, serious question that now arises is as to what is the nature of the offence that has been committed by the accused in these circumstances? The accused have been proved to be in possession of the land and were sought to be dispossessed by the complainant-party. The accused, therefore, would undoubtedly have a reasonable apprehension of hurt being caused to them and were, therefore, entitled to defend their person and property in the exercise of their right of private defense. The conduct of the complainant-party, therefore, does not appear to be thoroughly blameless. They appear to have determined to throw away the accused from the land in question without having recourse to other mode of redressed of their long pending dispute. Further, the contention of Shri M.G. Chitkara, learned Counsel appearing in defense of the accused that no offence has been committed by his clients in the circumstances of this case, has a force but not full force. The accused have inflicted large number of injuries not only on the person of Sukh Ram and Amarjeet Singh (deceased) but also to Durga Chand, Rasil Singh, Hoshiar Singh and Jhonfi Ram. Injuries on all, except Durga Chand, have been caused by gun loaded and reloaded a number of times. Therefore, there is no doubt that they have exceeded their rights of private defense and their case, although completely out of Section 302 of the Indian Penal Code, falls within Exception-II to Section 302 of the Indian Penal Code and the accused are, in these circumstances therefore, liable to be convicted u/s 304, Part-I, of the Indian Penal Code.

For these reasons, therefore, this appeal is allowed to the extent that the conviction and sentence passed by the trial court u/s 302 of the Indian Penal Code is hereby set-aside and the same is altered to that u/s 304, Part-I of the Indian Penal Code and the accused are sentenced to eight years rigorous imprisonment. All other punishments are maintained and the jail sentences to run concurrently. The accused are also entitled to the benefit of Section 428 of the Code of Criminal Procedure.