Mangi Lal and Others vs State of Rajasthan

Inder Sen Israni, JJ.—This is D.B. Criminal appeal against the judgment of conviction and sentence dated 5-8-1985 passed by the learned Sessions Judge, Tonk convicting and sentencing the accused appellants as under:

MANGI LAL u/s 302/34 I.P.C. Life Imprisonment and a fine of Rs. 200/-, in default of payment of fine, to further undergo''s 2 months Rigorous Imprisonment; u/s 323/34 I.P.C. One year''s RI; u/s 325/34 I.P.C. Five years rigorous imprisonment and fine of Rs. 100/- in default, one month''s rigorous imprisonment; RA 1SAL: u/s 302/34 I.P.C. Life imprisonment and a fine of Rs. 200/- and in default two months RI; u/s 325 I.P.C. Five years rigorous imprisonment and fine of Rs. 100/-, in default, one month rigorous imprisonment; DURGA: u/s 302/34 Life Imprisonment and a fine of Rs. 200/- in default two months rigorous imprisonment; u/s 325 I.P.C. Five years rigorous imprisonment and a fine of Rs. 100/- in default one month RI; MEVA: u/s 302 I.P.C. Life Imprisonment and a fine of Rs. 200/-, in default of payment of fine, two months rigorous imprisonment; u/s 325 I.P.C. Five years rigorous imprisonment and fine of Rs. 100/- in default, one months rigorous imprisonment; u/s 303 I.P.C. One year Rigorous Imprisonment. 2. Briefly the facts of the case are that there is a field bearing Khasra Nos. 236 and 237 in village Sirohi. The complainant party and the accused party are near relatives. Accused appellant Mangilal and Govinda are real brothers and deceased Rampal is son of Govinda. Both the parties claim their rights over the disputed land mentioned above. On 23-6-1983, at about 9.00 a.m, according to the FIR the complainant party was cultivating the disputed land and the accused appellants and two other persons came there with lathis in their hands. They told that they will not allow them to cultivate the disputed field. The accused persons then started giving beating to Rampal, Arjun, Ramchandra and Mooliya. Smt. Dhani w/o Arjun, Sarwani and Nolai, who were coming towards the field tried to intervene, but were also beaten by the accused appellants by lathis. The complainant Kedar Prasad also went there to intervene in the matter. The accused persons after causing injuries went away from the spot and that time many other persons also reached there. Rampal was taken to the hospital, who succumbed to his injuries on the way. The other injured persons went to the hospital at Nivai and a written report (Ex.P 1) was submitted at Police Station, Nivai, on the basis of which FIR (Ex.P 2) was registered under Sections 147, 148, 149, 302, 307, 447 and 323 I.P.C.

It may be mentioned that the members of the accused party also received injuries and all the 4 accused appellants received 32 injuries on their persons. Out of these injuries, 19 were on the head by sharp and blunt edged weapons. There was fracture of parietal bone of accused appellant Meva, which was grevious. Accused appellant Durga also received grevious injuries on his person and a cross FIR was also lodged by the accused party against the complainant party regarding the same occurrence.

After investigation, the police filed a challan against the accused persons. The Magistrate committed the case to Sessions. The evidence of both the parties was recorded by the trial court and thereafter the accused were examined u/s 313 Cr.P.C. After completion of trial and hearing both the sides, the accused appellants were convicted and sentenced as indicated above.

The main contention of Mr. A.K. Gupta learned Counsel for the appellants is that the accused appellants were in possession of the disputed field and while they were cultivating the land, the complainant party came armed with lathis etc. and wanted to take over forcible possession from the accused appellant. He, therefore, does not deny the occurrence, but claims the right of private defence as the complainant party came fully prepared and armed to assault and beat the accused appellants and take forcible possession of the disputed land.

It has been pointed out that in the charge sheet filed by the prosecution it has been clearly mentioned that during investigation by the police, it was revealed that accused Mangi Lal and others left village Sirohi several years ago and settled in village Bambori. The brother of Mangi Lal was father of deceased Rampal. After his death. Rampal was cultivating the lands of both brothers (Govinda and Mangilal) and Khatedari therefore, remained in the name of Rampal. On enquiry from neighbours, it further revealed that few years back Mangi Lal and others came back to village Sirohi and on their demand, some fields were given by Rampal to them These fields given to Mangi Lal and others also included the disputed fields bearing Khasra Nos. 236 and 237. However, dishonesty came in the mind of Rampal and about one year earlier, he took over possession of the land forcibly and cultivated it. The khatedari rights continued to be in the name of Rampal. It was further revealed on enquiry that at the time of occurrence, the accused persons were cultivating the disputed fields. When the complainant party came to stop them from doing so, the quarrel took place. These facts are contrary to the facts mentioned in the FIR as in the FIR the accused persons were shown to be aggressors. A cross-case bearing No. 84/83 under Sections 147, 148, 149, 325, 324 and 323 I.P.C. has also been registered against the complainant party. The learned Counsel, therefore, contends that the prosecution instead of proving the facts revealed on enquiry, changed the whole version and produced the witnesses who deposed that the accused persons were aggressors and the possession of the disputed fields was with the complainant party, who were cultivating the field at the time of occurrence. It is, therefore, contended that the prosecution has not only improved their case, but have, in fact, totally changed the same. It is pointed out that in fact at the time of occurrence the crop of sugar cane had been cultivated by the accused appellants, which shows that they continued to be in possession since the possession of the disputed field was given to them by deceased Rampal about 5 years back. He has pointed out that PW 1 Kedar, lodged the FIR, has stated in his statement recorded in Court that at the time of occurrence no crop of sugar-cane was in the field. PW 2 Ram Chandra S/o Govinda, PW 3 Arjun S/o Govinda. PW 4 Mooliya S/o Govinda PW 5 Ramraj, PW 9 Ram Kishore and PW 10 Noli have stated that the possession of the disputed land was with deceased Rampal and there was no cultivation of sugar cane in the field. It has been pointed out that PW 2 Ram Chandra, PW 3 Arjun, PW 9 Ram Kishore and PW 10 Noli are the eyewitnesses, but in their statements u/s 161 Cr. P.C. they have given different version of the story, which is same as has been revealed in the charge sheet on enquiry to the prosecution. PW 2 Ram Chandra in his statement (Ex. D 3) has stated that he saw Mangilal and his sons including Durga, Meva and Gudla etc. in the disputed field and Durga was ploughing the land-Thereupon they asked these persons to stop ploughing the field as the land belonged to deceased Rampal. Similarly, PW 3 Arjun was confronted with his statement u/s 161 Cr. P.C. (Ex. D 4), in which he has stated that in ''Chopara-wala-khet'' (disputed land) when they reached at the spot, Mangilal, his sons Durga, Meva, Raisal and his wife Gadul were there and Durga was ploughing the field, whereupon they challenged them why they were cultivating the land. In cross-examination in court when questioned that they had caused injuries to Meva and other accused persons, he denied the same and stated that he did not see any injury on the person of accused and they might have received the injuries among themselves. PW 4 Mooliya was also confronted with his statement u/s 161 Cr. P.C. (Ex. D 5) in which he has stated the same as stated by PW 3 Arjun. PW 5 Ramraj, who is said to be owning a field near the disputed field has also stated that in Chopara-wala-khet (disputed land) at about 9.00 a.m. Mangi Lal and his sons Durga, Mewa and Mst. Gadul etc. were present and were ploughing the land. Where upon, the complainant party viz. Rampal, Arjun, Ram Chandra etc. ''came with ploughs and asked them why they are cultivating the land of deceased Rampal. PW 6 Radha Kishan, who is also a person who owns a field in neighbor-hood of the disputed land, was confronted with his statement u/s 161 Cr.P.C. (Ex D 7), in which he has stated that accused Mangilal and others used to cultivate this land before last year. PW 10 Mst. Noli d/o Arjun was also confronted with her statement recorded u/s 161 Cr. P.C. (Ex.D 8), in which she has stated that Mangilal, Mewa, Raishal, Durga and Mst. Gadul were ploughing their land.

Thus, it is clear that in the earlier version given by these witnesses before they were examined in the court they have admitted that the accused persons were already ploughing the land when the complainant party reached there and challenged them why they were cultivating the land belonging to Rampal, whereupon the fighting took place. This is absolutely contrary to the version given by these witnesses when they were examined in the court. It is also pertinent to note that none of the witnesses have explained the injuries caused on the person of accused party, some of whom have received grevious injuries. It has been stated by them that these injuries, if any, might have been caused to them amongst themselves. It may also be pointed out that the witnesses of the complainant party have stated that no crop of sugar cane was standing in the disputed land, where as PW 16 Karan Singh, Investigating Officer has stated in his statement that he cannot say who cultivated the crop of sugar cane in the disputed field. Some of the witness''s of the complainant party have also stated that they had not cultivated the sugar cane in the disputed field. PW 5 Ramraj has also admitted in Ex. D 6 that crop of sugar cane was cultivated since last 2 years in the disputed field. He also admits to have litigation with the accused persons. PW 9 Ram Kishore Patwari has also stated that the crop of sugar cane and ''Rijka'' was cultivated in the disputed land, but he does not know who cultivated the same. He has also admitted that the disputed land belongs to both the parties. He further states that he does not know how the disputed land was in the name of deceased Rampal alone. PW 11 Dhani w/o Arjun was also confronted with her statement u/s 161 Cr.P.C. (Ex.D 11) in which she has stated that when she went at the disputed field on the day of occurrence she found that the accused persons were ploughing the field and her husband and others of the complainant party were stopping them from doing so. She also admitted that (here was sugar cane crop in the disputed land at the time of occurrence. She has clearly stated that deceased Rampal stopped Mangilal from ploughing the land. PW 15 Sarwan in his statement u/s 161 Cr. P.C. (Ex. D 12) has also stated that in the disputed land the crop of sugar cane was there and the accused persons were ploughing the field, whereupon the complainant party asked them not to do so.

Ex. D 1 is the site map, which even though prepared by the prosecution, was not exhibited by it, but was exhibited by the accused persons in defence. The description of Ex. D 1 shows that a portion of the land was recently ploughed and sugar cane had been cut and collected and was lying in the field. The accused persons from the beginning have been claiming that they had cultivated the sugar cane in the field where as the prosecution witness have either denied the very existence of crop of sugar cane on the field or have stated that it is not known to them who had cultivated the sugar cane crop. Ex. D 13-A is the injury report of Mangilal, who received 7 injuries Ox. D 14 is the injury report of Raisal of the accused party who deceived 12 injuries. Ex. D 15 is the injury report of accused appellant Durga, who received 2 injuries, out of which one was fracture of left ulna. Ex D 17 is the injury report of appellant Mewa, who received 10 injuries. Ex. D 13 is the X-ray report of appellant Mewa which shows that there was fracture of parietal bone. These reports clearly show that the prosecution has absolutely failed to explain these injuries received by the members of accused party.

Now coming to the defence version, accused appellant Mangilal in his statement u/s 313 Cr.P.C. has stated that the disputed land was in their possession and they had cultivated ''Rijka'' and wheat. Sugar cane had also been cultivated by them. On the day of occurrence. Durga was ploughing the field. 11 persons of the complainant party came and started beating, on which Durga shouted. Thereupon, he went towards that side and asked them why they were beating his son, Mewa, Raisal and Sukhdeva also came there, Mewa was beaten and thrown on the ground, who became unconscious. Raisal was also beaten and thrown on the ground. He was beaten by Arjun. He was sitting on the ''Medh'' and did not beat any person. He has further stated that he is a blind person and cannot see. He is 80 years old. Appellant Mewa in his statement u/s 313 Cr.P.C. has stated that he was medically examined and had received fracture on his head, which was caused to him by the complainant party. All the accused persons have given the same version as given by accused appellant Mangilal.

DW 1 Ram Narain, DW 2 Harphool and DW Sukhdeo have also stated that the disputed land was in possession of the accused party. who had cultivated the same and sugar cane crop was also cultivated by them. DW 5 in Dr. Gopal Singh Rajawat, who has proved the various injuries of the accused persons, mentioned above.

It has been Pointed out that Ex. D. 13 shows that the land was mortgaged Mangilal, even though payment of the mortgage amount for getting it released was made by Rampal. The possession of accused party over the disputed land at the time of occurrence is fully proved from the statements of the complainant party as stated by them in their statements u/s 161 Cr. P.C. They have subsequently changed the version to suit it at the time when they were examined in the court.

PW 2 in his statement has clearly stated that the whole land belonged to Bhura who is his grand-father and father of Mangilal and has clearly stated that the whole land belonging to his grand-father Bhura is in khatedari of deceased Rampal and no partition has yet taken place The trial court has also given remarks for PW 1 Kedar and PW 3 Arjun that the witnesses are speaking continuously without waiting for the questions to be put to them, which shows that they remember their statements completely This indicates that the witnesses were completely tutored to give a particular version of the whole incident as thought suitable by the prosecution The cross case filed by the accused persons is also pending and Ex P 9 is the charge sheet under Sections 147, 148, 149, 324, 323 and 325 I.P.C. against the members of the complainant party and Ex. 10 is the FIR of the incident filed by the accused party It will be seen that appellant Mewa has 3 injuries on his parietal region where as deceased Rampal had only one grievous injury on account of which his death took place.

This clearly shows that there was grave danger of assault to the accused persons while they were cultivating the disputed field which originally belonged to Bhura, ancestor of both the parties and the accused persons had clear right of private defence.

Our attention has been drawn to the case of Puran Singh and Others Vs. The State of Punjab, , in which their Lordships of the Supreme Court dealt with the question of possession of even a trespasser It was observed that "usual test to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser after having taken possession, had grown any crop If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop crown by the trespasser and take forcible possession, in which case the trespasser will have no right of private defence". In the instant case, it is evident from the evidence on record that the crop of sugar cane was grown by the accused Party.

It may be pointed out that in the case of Jai Dev Vs. The State of Punjab, it was held by the Apex Court that a mere reasonable apprehension is enough to put a right of private defence into operation and it is not necessary that death or grievous hurt should actually be caused before the right could be exercised.

In the case of Lakshmi Singh and Others Vs. State of Bihar, , their Lordships of the Supreme Court held that in a murder case, non explanation of injuries sustained by the accused at about the time of occurrence or in the course of altercation are very important circumstance from which the court can draw the following 3 inferences:

(i) that the prosecution has suppressed the genesis origin of the occurrence and has thus not presented the true Version;

(ii) that the witnesses who have denied the presence of the injuries on the person of accused are lying on a most material point and, therefore, their evidence is not reliable:

(iii) that in case there is a defence version, which explains the injuries on the person of accused it is rendered probable so as to throw doubt on the prosecution case. Mohar Rai and Bharath Rai Vs. The State of Bihar, was also relied on while drawing the above conclusions.

In the case of Ramhet v. State of Rajasthan 1978 RCC 255, it was held by this court that when occular statement of the witness stands contradicted by the medical evidence and the contradictions appear in the statements of the witness, recorded in the court with their police statements as well as probability of the case, it would not be safe to convict the accused person on such evidence and the accused is entitled to the benefit of doubt

Learned Counsel appearing for the complainant party has drawn our attention to the case of Onkarnath Singh and Others Vs. The State of U.P., , where in it was held by their Lordships of the Supreme Court that the entire prosecution case cannot be thrown over board simply because the prosecution witnesses do not explain the injuries on the person of accused. Such non-explanation however is a factor which is to be taken into account in judging the veracity of the prosecution witnesses and this court will scrutinise their evidence with care.

In the case of Vidhya Singh Vs. State of Madhya Pradesh, it was held by their Lordships that on the facts and circumstances of the case, she accused had right of private defence, but he exceeded that right and was liable to be convicted u/s 304(1) and not u/s 302 I.P.C.

These authorities are of no help to the prosecution in the facts circumstances and evidence on record in the presence case.

In the case of Nandsingh and Ors. v. State of Raj. 1985 RCC 160, it was observed by this court that when in the challan that the Investigating Officer has mentioned that during investigation it was revealed the deceased Fateh Lal had gone to Bheru Lakhera''s field with intention to take possession over the field and that the accused persons acted in the right of private defence to their persons and property, it shows that during investigation the Investigating Officer also felt that the accused persons acted in the right of private defence to their person and property. In the present case the Investigating Officer has clearly mentioned in the charge sheet that the accused persons were ploughing the field when the complainant party went there to disposses them. We are, therefore, of the considered opinion that the accused appellants had clear right of private defence and the same has not been exceeded and they deserve to be acquitted.

In the result, the appeal is accepted. The conviction and sentence passed by the learned Sessions Judge against the appellants is set aside and they are acquitted of all the charges levelled against them. The appellant Meva is in jail and he shall be set free forthwith, if not required in any other case. The rest need not surrender to their bail bonds.