State of M.P. vs Hari Singh and others

R.P. Gupta, J.

These three appeals arise from one judgment dated 29th December 1996 passed by the Additional Sessions Judge, Khurai, district Sagar in Sessions Trial No. 113/83 whereby all the 17 accused persons except Hari Singh and Roopsingh were acquitted of the charges under Sections 148, 149, 302, 307 and 324 while Hurisingh and Roop Singh were convicted for the offence u/s 304 Part-I of Indian Penal Code and they were sentenced to 4 years R.I., each and a fine of Rs. 1000/- each. In default of payment of fine they were ordered to undergo further R.I. for one year. Even these two accused were acquitted of the charges u/ss 148. 149, 302 307 and 324 I.P.C.

All the accused were tried for the charge of forming an unlawful assembly on 11.10.81, the common object of which was to murder Bhagwan Singh, the deceased and his other family members and further charge of rioting by attacking on Bhagwan Singh and others armed with deadly weapons in pursuance of this common object of causing the death of Bhagwan Singh and attempting to murder Bharat Singh. Thus the charges were for the offences under sections 145, 148, 302/149, 307/149 and 324/149 IPC. Bhagwan Singh had died due to the injuries caused by the accused persons in prosecution of their common object, but Bharat Singh was same how saved by the medical treatment although his injuries were sufficient to cause death and injuries with the sharp edged weapons were caused to Sher Singh, Bhadur Singh, Karan Singh and Mullu Singh. The incident occurred in the two fields bearing Khasra No. 71/1 and 71/2. In this trial, only Harisingh and Roopsingh were found guilty for offence u/s 304 IPC. Ail others were acquitted of the charges on the ground that they had exercised the right of private defence of property and person within permissible limits. Harisingh and Roopsingh were found to have exceeded the right of private defence in causing the death of Bhagwan Singh.

Criminal Appeal No. 11/87 is by convicted accused Harisingh and Roopsingh while Cr. A. No. 329/87 is by State against Harisingh and Roopsingh u/s 377 Cr.P.C. against the alleged inadequate sentence awarded to them which was R.I. for 4 years and line of Rs. 1000/- each and in default of fine, further R.I. for one year each. The State pleads for enhancement of sentence upto life imprisonment. Criminal Appeal No. 1306/87 is also by State against all the 17 accused including Harisingh and Roop Singh against the judgment of acquittal on charge of murder while forming riotous unlawful assembly armed with deadly weapons, the common object of which was to cause death of Bhagwan Singh and his family members.

A number of persons of both the sides suffered a number of injuries by sharp edged weapons in the incident out of which this trial arose. The complainants of the present case were also tried for causing injuries to some of the accused persons. However, the evidence of that charge and its result do not form part of the present record and have not been referred to.

The following genelogy will indicate the relationship between some of the parties and will further help in understanding the genesis of the incident:

Parmanand owned substantial agricultural lands in village Bahphali, Patti Khurai. He sold a part of his land to Roop Singh, Sher Singh and Mulayam Singh and some land still remained with Parmanand. Field No. 71/2 was owned and possessed by Roop Singh etc. due to transfer by Parmanand to them. Field No. 71/1 belonged to and was in possession of Parmanand till his death. In this field the incident took place. After the death of Pramanand, Gorelal claimed to have succeeded to the land owned and possessed by Parmanand i.e., Field No. 71/1. However, Roop Singh. Harisingh, Mulayam Singh, Summer Singh claimed to be the owners in possession of the entire land left by Parmanand and claimed to have continued in possession since the life time of Parmanand and even after his death in March 1981. Parmanand was residing with Harisingh and his sons during his life time and the land was being cultivated by them.

On the date of the incident, Bhagwan Singh and his brothers and his son Moorat Singh were carrying on the agricultural operations in field No. 71/1, left by Parmanand with the help of Oxen and Plough. This process is called ''Bakharni'', in the local dialect. They had been carrying on this Bakharni operations atleast since two days before the incident, preparing the land for sowing rabi crops. There were litigations also between the two parties about this land. Proceedings u/s 145 Cr.P.C. were initiated against both the parties by Police. Roop Singh etc. filed a civil suit in respect of the lands in dispute and a temporary injunction was sought in that suit against Gorelal & others. Injunction applied for was declined by the Court on 6.10.81. On the date of incident i.e., 11.10.81 as the deceased Bhagwan Singh and his brothers were carrying on their agricultural operations of ''Bakharni'' and were resting during the midday meals break, the respondents/accused persons reached there with a Tractor to carry out the Bakharni operations themselves. Roop Singh, Summer Singh, & Mulayam Singh came there with a Tractor. They had some armed with deadly weapons like Pharsa. Katarna, Ballam and Lathi. The other respondents, fully armed were hiding in a nearby Nala, when Roopsingh started tilling the field with Tractor. Bhagwan Singh and his brothers objected saying that they have obtained an interim injunction and so they (Roopsingh etc.,) should not till the land and should not disturb the possession of Bhagwan Singh etc., Hari Singh Roop Singh etc., insisted on their right to cultivate. After initial exchange of words between Bhargwan Singh on the one hand and Roop Singh etc., on the other, all the other accused persons, armed with their respective weapons come there from a nearby Nala. Harisingh and Roop Singh gave Pharsa Blows on the head of Bhagwan Singh and a blow on his shoulder was also given. He fell down then brothers of Bhagwan Singh and his son with their wapons rushed to save Bhagwan Singh as a result of which there was fierce battle between them. The accused persons caused grievous and dangerous injuries to Bharat Singh on the head and other parts of the body. He had one incised wound on his head and two others in his hand, one injury was caused to Moorat Singh, 3 to Bahadur Singh, 2 to Karan Singh and 4 to Sher Singh. On the side of accused/respondents 8 injuries were caused to Suhag Rani wife of Hari Singh, 5 injuries to Roop Singh on the arms and a leg. 4 injuries to Hari Singh himself, 2 injuries to Anand, 3 injuries to Lajras, 2 injuries to Prem Singh, 5 injuries to Jannon @ Johnson and one injury to Mulayam Singh. Injuries found on the body of the deceased Bhagwan Singh were as under:-

(i) One incised wound 2 cm x 1/2 cm. x scalp deep on the left side of forhead placed horizontally, 5.5 cm away from the left ridge of eye brow.

(ii) One incised wound semi-circular over left side of scalp stretching from above 5 cm. and away from left car pinna running convex and coming to an end in the centre of scalp about 8 cm above ivasion whole length of the wound was 24 cm x 3 cm in its middle x 12 cm to the end of perenial cavity extension wherefrom the brain matter was coming out and rest of the length of it was scalp deep at its ends near the invasion, it had horizontal extension which was 5 cm x 1 cm x scalp deep.

(iii) One incised would 1/2 cm x 1/2 cm x skin deep on the left shoulder 1/4 cm below acrumise process. Left temporal bone had been fractured corresponding to injury No. 2. There had been bleeding from brain. Undigested food was found in the stomach. Death had been caused due to bleeding and injury on the brain.

First information report in writing was lodged by Premsingh at 4.33 P.M. on 11.10.81 i.e. day of incident at P.S. Khurai. The prosecution examined 24 witnesses of whom medical evidence consists of P.W. 1 Dr. A.K. Verma. P.W. 2 Dr. A.N. Tripathi and P.W. 23 Dr. M.M. Modi who examined the injured persons and the deceased P.W. 5 Sher Singh. P.W. 7 Moorat Singh, P.W. 9 Bharat Singh, P.W. 11 Bahadur Singh, P.W. 14 Prem Singh & P.W. 16 Karan Singh arc eye-witnesses who are brothers and sons of the deceased, P.W. 18 Nigam Sunil. P.W. 11 Khushal & P.W. 20 Premlal are also eye witnesses of the incident, but they are not related to either side. P.W. 4 Naveen @ Nabbu P.W. 6 Munnalal. P.W. 8 Kartar Singh, P.W. 7 Moorat Singh P.W. 12 Babulal, P.W. 15 Ma/boot Singh and P.W. 17 Bhoopat Singh and witnesses of the seizure of various articles by the Police from some accused or the other co-accused. P.W. 13 V.N. Prasad, D.S.P. P.W. 21, B.K. Dwivedi P.W. 22 Head Constable B.P. Shukla are formal witnesses who took certain steps for investigation. P.W. 15 is the Investigating Officer.

The learned trial Court found on appraisal of evidence that Bhagwansingh, Sher Singh etc. were taking their meals in the field after carrying out the ''Bakharni'' operations. At that time Roopsingh etc., came there with tractor and started carrying out their own ''Bakharni'' on the field. Bhagwansingh approached them and asked them not to carry out their Bakharni. At that moment, Roop Singh and Harisingh gave Pharsa blows on the head of Bhagwan Singh who was unarmed. All other accused persons came running fully armed from a Nala where they were hidding. Seeing this, the other brothers of Bhagwan Singh and his son came running with arms in defence of Bhagwan Singh and started attacking Roop Singh etc. Then both the sides fought a pitched battle resulting in respective injuries to them. On discussion of evidence regarding possession of disputed field, the trial Court found that the possession of Roopsingh etc., was contained on both the fields i.e., Field Nos. 71/1 and 71/2 since before the death of Parmanand who was owner in possession. The two fields were adjacent and there was no demarcation line. After Roop Singh failed in obtaining interim injunction from civil court against Gorelal and others on 6th Oct. 1981, Bhagwansing, Bharat Singh etc., started carrying out ''Bakharni'' operation in Field No. 71/1. Accused persons Harisingh, Roopsingh etc., came and objected to it. The trial Court observed that from the existence of injuries on the members of both the parties, it was apparent that both sides suffered injuries in one incident and so it was result of mutual fight between the two parties. The trial Court further observed that the fight had occurred on field No. 71/1 which was the disputed number although it had been described as fight on Khasra No. 71/2. The trial Court was of the view that since there was no dispute about Kh. No. 71/2, that could not be cither the cause of fight or the place of light. Of course, the two Nos. 71/1 and 71/2 were adjacent to each other without any demarcation between them. The court further observed that Kh. No. 71/2 was undisputedly in possession of Roop Singh etc. while there was no evidence or other proof that Kh. No. 71/1 was in possession of Gorelal and sons and that in fact the copy of Kh. No. Ex. P. 14 suggested that alter death of Parmanand on 23rd June 1981 the name of Roop Singh etc. was mutated in place of Parmanand in respect of Kh. No. 71/1. Apart from this, Parmanand was residing with Roop Singh & Harisingh accused, and those accused were tilling the land of Parmanand. The crop of Raby was also harvested by Harisingh with Roop Singh. So Hari Singh & Roop Singh were in possession of this land definitely till April 1981. This was varied by mutation of that land in the name of Roop Singh and Hari Singh in June 1981. So their possession continued. However, both sides were claiming ownership of the land of Kh. No. 71/1. May be Roop Singh''s deed of adoption had not been executed as valid. But he was claiming his rights on the basis of mutation also. The trial Court observed that he could not enter into the adjudication of the question as to who was the legal heir to Parmanand, but he found that both the parties were competing with each other to establish their ownership over the lands left by Parmanand. This resulted in proceeding u/s 145 Cr. P. C. between them about the land and civil suit by Roop Singh, Harisingh against Gorelal & his sons etc., and Bhagwan Singh. The petition of interim injunction moved by Harisingh & Roop Singh etc., in the civil suit had been dismissed on 6th Oct. 81 by the civil Court and on 11.10.81 this quarrel took place. A day before this incident, P.W. 24 A.S. Tomar, A.S.I., at P.S. Khurai alongwith D.S.P. Shri Malhotra and area Inspector Shri Badholia alongwith constables had gone to village Bhagthari and contacted both these parties and advised them not to take the law in their own hands and that they should follow peaceful legal procedures and both the sides assured them that they had adopted legal procedures in Courts. The trial Court was of the view that there was nothing on record to suggest that Gorelal and his sons had obtained a settled possession over the disputed land before the date of this incident and if after the quarrel or after the dispute, the names of Gorelal and his sons were entered in the records of this land, it could not prove that they became owners of this land. The trial Court observed that even if the sons of Gorelal were doing their ''Bakharni'' operation in this land for the last 2-3 days at the time of fight, yet the Bakharni operation for 2-3 days would not establish settled possession of those people as it was not with the consent of the opposite party who were in possession.

The trial Court has observed that since Roop Singh etc., were in possession of the land and Slier Singh etc., wanted to take possession of the land, Roopsingh etc., started asserting their right and in doing so they could use only necessary force and not excessive force. The Court found that when Bhagwan Singh was hit by Harassing and Roopsingh by pharsa, none of the accused had been attacked by Bhagwan Singh. Slier Singh etc., at all. They were in fact standing 10-15 paces away. So the accused could not apprehend attack or injuries to be caused to them. So by that time, Harisingh and Roopsingh had no right to attack Bhagwansingh in self-defence. They had right to defend the trespass by Bhagwan Singh etc., so they could use only that much force which could be sufficient to compel Bhagwansingh to stop his activity. They had no right to cause death of Bhagwan Singh to stop his activity. They had no right to cause death of Bhagwan Singh. Thus Roop Singh and Hari Singh exceeded their right of private defence of property, as Bhagwan Singh was unarmed and could give no apprehension of causing injury to any of the accused. It was further found by the Court that after Bhagwan Singh''s injuries when attacked by Slier Singh etc., the accused had exercised the right of self-defence of person and property. Whatever injuries they caused to Bharat Singh and Sher Singh etc., were in their right of self-defence of their person as well as of property. So they could not be held liable for the injury. The court found that the accused persons had gone to the field although armed with deadly weapons with the object of protecting their fields from trespass by the opposite party and they knew that the opposite party was armed. So their reaching the field armed with deadly weapons could not be called as formation of unlawful assembly, nor their attack after they were attacked from the opposite side in exercise of their right of self-defence was an unlawful assembly or a riot.

With these findings, the trial Court concluded that the accused Harisingh and Roopsingh who were appellants in Cr. A. No. 11/87 and the respondents in Cr. A. No. 329/87 and respondents 1 & 4 in Cr. A. No. 1306/87, were guilty of an offence u/s 304 Part-1 IPC and they were sentenced accordingly. All other accused respondents were acquitted of all the charges.

The contentions of the Govt. counsel in two appeals filed by the State are that the complainants were in possession of the filed, in exercise of bona fide claim over it as heirs of Parmanand, the accused party had failed to obtain temporary injunction against them from to a civil Court. The possession of the complainant party Gorelal etc. had come into effect since the month of ''Chaitra'' when the crops which were sown and harvested by Prmanand deceased, were removed by the respondents Roop Singh etc., and that the Bakharni operation was being continued by the complainant party, atleast since a few days before the incident. So, they were in possession in exercise of bona fide claim and they were carrying on their operations in a bona fide manner. The respondents Roop Singh, Hari Singh etc., had come armed with deadly weapons bringing with them a large contingent of armed helpers to assault the complainant party. From the very start, their intention was to assault and to regain possession by use of force. They had not taken the course of seeking help from the public authorities such as police and they had failed in obtaining interim injunction against complainants in the Civil Court. So, when Bhagwan Singh asked them not to plough the land with their Tractor as he had already tilled their land and had a right to do so, Roop Singh etc. had no right to throw him away by force of arms. Since they attacked Bhagwan Singh with lethal weapons like Pharsas, they became aggressors. Bhagwan Singh''s brothers were justified in trying to protect his person and themselves. Thus Roopsingh etc., who had kept their armed men concealed in a Nala and called those armed men by signaling to them and then starting the attack, formed an unlawful assembly and all injuries caused by any member of that assembly would attract vicarious liability of all these rioting members. On this premises, it is argued by the State counsel that all the respondents are liable to conviction for the offence punishable u/ss 147, 148. 302/149, 307/149 and 325 read with section 149 IPC.

It is further argued in appeal No. 329/87 (State v. Harisingh & another) that Harisingh and Roopsingh who were convicted u/s 304 (Part-I) IPC have been awarded inadequate punishment as they first attacked on Bhagwan Singh who was unarmed and which resulted in his death the same day, was totally unjustified. It could attract punishment of life imprisonment. So the punishment to them should have been for life and at any rate not less than 10 years with fine.

As against this, the contention of learned counsel for all the respondents is that even conviction of Harisingh and Roop Singh is unjustified and that the acquittal of other accused is fully justified. It is argued that the complainants Bhagwan Singh etc had no right to go to the field to do ''Bhakarni'' operations, that if by civil court''s temporary injunction had not been granted to Harisingh, Roopsingh etc., it would not justify taking possession over the land by the complainant party, that admittedly Parmanand was in possession of the land and had sown crops. These crops had been harvested by Hari Singh, Roop Singh etc., after his death and Harisingh, Roop Singh continued in possession after death of Parmanand who was in fact residing with them. The land stood in their names in the revenue records, that Harisingh was natural son of Parmanand and the disputes of title if any were, subject matter of civil litigation and the allegation of deprivation of title by adoption has not been established and that prosecution itself is wrong in describing Roop Singh accused, as adopted son of Parmanand, although Roop Singh is natural son of Harisingh. It is argued that the trial Court has held that Harisingh etc., were in possession of the land at the relevant time and so Bhagwan Singh etc., were mere trespassers whose possession was not settled nor acquiesced into and when Roop Singh etc., found them interfering with their land, they had a right to remove them. It is argued that for using force for removal, such force could not be weighed in minute scales and no excess force could not he said to be used when even the complainant party was armed with deadly weapons and these accused respondents had full apprehension of being assaulted, resulting in grievous hurt to those persons, so they were justified in using all possible force at their command. It is argued that the trial Court has erred in holding that there was excess in use of force for self defence of property against Bhagwan Singh at the hands of Hari Singh and Roop Singh.

We have been taken through the evidence of the trial Court and the evidence of witnesses as well as the various documents on record including the medical reports. The accused Harisingh and Roop Singh in their statements u/s 313 Cr.P.C., had urged that they were in possession of lands from the beginning. The land was recorded in the name of Roop Singh at the time of incident. The incident occurred towards west of Peeple tree, that Bhagwan Singh and his brothers wanted to take possession of their land forcibly and to become owners thereof and the litigation is continued between the parties about this. They said at the time of incident. Bhagwan Singh and his men attempted to take possession over their (accused''s) land and they (accused) warned them not to do so. At this, Bhagwan Singh and his brothers attacked the wife of Harisingh and others with dangerous weapons and caused injuries dangerous to life. On the date of incident, these accused were doing Bakharni in their land No. 71/2 and the complainants tried to take possession over the land owned by Harisingh etc. The land belongs to Roop Singh, Summer Singh, Mulayam Singh from the very beginning and they arc in undisputed possession of the same. They also stated that Bhagwan Singh had initially initiated the attack with his Pharsa. Summer Singh said that he was not present at the time of this incident at that place. Some of the accused/respondents had claimed to the agricultural labourers of Roop Singh etc., and others claimed to be more interveners to separate the parties and falsely implicated out of revelry or to pre-empt evidence. However, accused describes Bhagwan Singh etc. (the complainant party) as aggressors against Roop Singh etc. They had not examined any defence witness.

The trial Court has found that Kh. No. 71/1 was the disputed land between the parties and that the dispute must have taken place on that land as there was no express boundary between Kh. No. 71/1 and Kh. No. 71/2, although 71/2 was never disputed and was owned and possessed by Roopsingh etc. This Kh. No. 71/2 had been transferred by Parmanand during his life time to Roop Singh etc. P.W. 3 is Ramkisan (Patwari of village) Bagthari, at the relevant time. He prepared site plan of the site of incident on 05.02.1981 as Ex. P. 12. According to him, the exact site of incident appeared to be 71/2 which was recorded in the name of Roop Singh. Summer Singh, Mulayam Singh etc. Copy of this Khasra is Ex. P. 14. Khasra No. 71. It is adjacent and still recorded in the name of Parmanand with no partition line between the two Khasra numbers. The land of Khasra No. 71/2 is in possession of Mulayam Singh etc., ab-initio while the dispute was about the land of kh. No. 71/1 between the parties. He states that the disputed site was about 2 or 2 � ''Jarrib'' from Kh. No. 71/1. Patwari has shown the spot of incident at the instance of prosecution witnesses, Sunil Nigam, Kushal s/o Gorelal. It appears that the investigating officer had not prepared any site plan on inspection of site showing any blood or mark of struggle present at the spot.

Learned counsel for appellants Hari Singh, Roop Singh and others has argued that Roop Singh. Hari Singh were in possession of their property. Bhagwan Singh etc., alongwith armed persons came there to disturb the possession while Roop Singh etc., had been doing ''Bakharni'' operation with the help of Tractor. Suhagrani came there with food for Hari Singh and Roop Singh. Mulayam Singh etc. At this, the complainant party Bhagwan Singh, Sher Singh etc., rushed into the field armed with weapons like Pharsas, Ballams and started attacking Hari Singh and his party. Bhagwan Singh wielded a Pharsa blow which hit the Tractor. At this, Jhonson @ Janson, Anand & Suleman who were grazing cattle nearby came and intervened. A report Ex. D. 17 was lodged on behalf of Hari Singh, Mulayam Singh etc., about the injuries caused to them by Bhagwan Singh and his companion on the date of incident itself and Sher Singh and others have been prosecuted on charges of Sec. 307 IPC etc. Suhagrani and Roop Singh had suffered grievous hurts and the number of injuries on their side was much more than the number of injuries on the party of Bhagwan Singh.

Learned counsel for appellants had urged that the story narrated in Ex. D. 17 should be taken as giving the genesis of the tight although no witness in defence had been produced. It is urged to be more probable version of the incident because Roop Singh. Hari Singh etc., have established their actual possession on the land which was the cause of this affray. Thus, the argument is that if it is probable that Bhagwan Singh and his companions armed with weapons started the attack, the right of private defence of property and persons arose in favour of Roop Singh, Hari Singh and others. An imminent apprehension of either grievous hurt or death would arise in the minds of these people justifiably. Actually, grievous hurt was caused and a number of injuries caused to a number of persons. So the accused party of the present case namely Harisingh, Roopsingh etc. were entitled to act in self defence and they had a right to even cause death within the scope of Section 100 firstly and secondly of IPC.

The following salient features emerge from the evidence of witnesses and the various documents on record. We have scrutinized the evidence, oral as well as documentary. Apart from, injuries of Bhagwan Singh, the following injuries had been noticed on the side of complainant party and accused party by Dr. A.N. Tripathi (P. W. 2) on 11.10.1981 when he examined these injuries at Govt. Hospital, Khurai from ft p.m. onwards.

Complainant side:

Meorat Singh

(i) One incised wound 7 cm x 3 cm with felcal tendon out on the right wrist 3" above the wrist joint caused by a sharp edged weapon. There was loss of sensation from the middle finger to the wrist joint. The injury was grievous in nature and caused within 12 hours.

Bharat Singh, s/o Gorelal

(i) An incised wound 13 cm x 4 cm on the left parietal temporal region with brain matter coming out. The injury was caused by sharp edged weapon.

(ii) Contusion X cm x 4 cm on the middle of right arm caused by blunt weapon.

(iii) Contusion 4 cm x 3 cm on the left elbow outer side caused by blunt weapon.

On the side of patient. X-rays of these injuries had been taken. Dr. A.K. Verma (P. W. 1) revealed a fracture of the head from the X-ray of this injured.

Bahadur Singh s/o Gorelal aged about 38 years.

(i) Lacerated wound 4 1/2 cm x 5 cm x scalp deep on the left pariatal area above the eye-brow.

(ii) Lacerated wound 2 1/2 cm x 5 cms, 1.25 cms below injury no. 1.

(iii) Skin abrasion 1/4 cm x 1/4 cm on the left fore-arm below the elbow.

All the injuries were caused by blunt weapon within 12 hours.

Karan Singh s/o Gorelal aged 22 years.

(i) Incised wound 6 cms x 2 cms into muscle deep on the left arm, 10 cms above elbow joint.

(ii) Incised wound 3 cms x 1 cm x bone deep of the left occipital area. Both injuries had been caused by sharp edged weapon and were 6-12 hours old.

Sher Singh s/o Gorelal

(i) One interacted wound 2 cm x 1 cm x sub-outaneous deep on the left thumb joint dorsal aspect caused by blunt weapon.

(ii) Lacerated wound 4 cm x 5 cm x subcutaneous deep on the middle of the skill,

(iii) Lacerated wound 3 cm x 5 on parellel to injury No. 2.

(iv) Lineal abrasion 9 cm long and 2nd abrasion 13 cm. lying on the right scapular region on the back side. All these injuries caused by blunt weapon.

The post mortem examination of Bhagwan Singh, the deceased, was conducted by this Doctor Tripathi on 12.10.81 at 10.10. a.m. He had noticed rigor mortis. The injuries which were noticed have already been detailed in this judgment. The doctor found that skull bone had been fractured and left temporal bone was also fractured resulting from injury No. 2. There was bleeding inside the brain and the brain membrane was pale. There was undigested food 10 c.c. found in the stomach. The injury were antemortem and caused within 24 hours and death had occurred 12-24 hours before autopsy. The cause of death was due to bleeding resulting from head injury. The doctor opined that the injury on the person of Moorat Singh could be caused by lathi (article D & E) and by Pharsa (article F & G). These Pharsa and Lathi could cause injuries to Bhagwan Singh also. Similar injuries were found on the body of Bahadur Singh, Sher Singh which could be caused by Lathis and injuries on the person of Karan Singh could be caused by a Pharsa. The doctor opined that death of Bhagwan could have been caused within 4-6 hours after taking food.

In cross examination, this Doctor detailed the injuries of accused party as follows:-

(a) Suhag Rani, wife of Harisingh, examined on 11th Oct. 81.

(i) Incised wound 7 cm x 1/2 cm x bone deep oblique on left pariatal temporal region.

(ii) Incised wound 4 cm x 1/2 cm x bone deep near injury No. 1.

(iii) Lineal scratohes on the middle of the back 10 cm x 1/2 cm x skin deep placed horizontally,

(iv) Incised wound on the left arm middle 1/3rd, 3cm x 1/4 cm x 1/4 cm.

(v) Incised wound 3 cm x 1/4 cm skin deep on the right arm upper portion back and outer area.

(vi) Contusion 1 cm x 1/2 cm on the chest.

(vii) Contusion 1/2 cm x 1/2 cm near the left finger.

(viii) Contusion 2 cm/1/4 cm on the joint of right thumb.

The injuries were 4-6 hours old at the time of examination. Injury Nos. 1 to 4 & 5 were caused by sharp edged weapon and others by blunt weapons. The report was produced as Ex. D. 1-A. The injuries could have caused death because there was apprehension that there might be injury on the brain. However, the patient had survived.

(B) Roop Singh s/o Parmanand

(i) Incised wound 4 cms x 1 1/4 cms x 2 cms on the right arm front portion on the back side of the elbow.

(ii) Contusion 2 cm x 1/4 cm on the left arm upper portion.

(iii) Contusion 1/2 cm x 1/4 cm on the left shoulder.

(iv) Scratch 1/2 cm x 1/4 cm on skin deep on the right little finger.

(v) contusion 3 cm x 1/2 cm on the left ankle joint.

Injury No. 1 had been caused by some sharp edged weapon and the others by blunt weapons. All these injuries were simple in nature, but the opinion about injury No. 1 was postponed till X-ray.

(C) Hari Singh s/o Mardan.

(i) Incised wound 5 cm x 1/2 cm x bone deep occipital temporal region back side.

(ii) Contusion 1 1/2 cm x 1/2 cm on the left fore-arm.

(iii) Scratch 1/4 cm x 1/4 on the left elbow.

(iv) Contusion 1/2 cm x 1/4 cm on the left elbow, above 1/3.

The injuries had been caused within 4-6 hours of examination. Injury No. 1 was caused by sharp edged weapon. Others by blunt weapon.

(D) Anand s/o Nathania

(i) Incised wound 4 cm x 1/2 cm x 2cm on the left shoulder.

(ii) Incised wound 4 cm x 1/2 cm bone deep on right frontal region. Both injuries were caused by sharp edged weapon and X-ray was advised about them.

(G) Lajras s/o Nathania

(i) Lacerated wound 6 cm x 1cm x bone deep obliquely placed on the skull caused by some hard blunt weapon.

(ii) Contusion on the right shoulder back side 3 1/2 cm x 1/2 cm.

(iii) Contusion 5 cm x 3cm on the back side of left palm.

All these injuries were caused by hard and blunt weapon. X-ray was advised about injuries 1 & 3. Injury No. 1 was simple in nature.

(F) Sadak s/o Benjir

(i) Contusion 6cm x 4cm on the middle of right arm.

(ii) Contusion 2 cm x 1/2 cm on the back side of scapular region. Injuries were opined to be only within 6-12 hours caused by hard and blunt weapons.

(G) Prem Singh s/o Anamol Lal, aged 29 years.

(i) Lacerated wound 4 cm x 1/2 cm in the middle of skull.

(ii) Contusion 1/2 cm x 1/2 cm on the left side of Chest.

Injuries were opined to be only within 6-12 hours caused by hard and blunt weapons.

(H) Jhonson & Janson s/o Valiur, aged 45 years.

(i) Lineal abrasion 8cm x skin deep on the front side of abdomen.

(ii) Abrasion 1/4 cm x 1/4 cm on the right nipple.

(iii) Contusion 3cm x 1/2 cm on the left fore arm on the upper 1/3.

(iv) Contusion 2 cm x 1/2 cm on the right arm near elbow.

(v) Contusion 1/4 cm x 1/4 cm on the front temporal region. The injuries were opined to be caused within 4-6 hours by blunt weapon. These were all simple in nature.

(I) Mulayam Singh, S/O Hari Singh, 17 years.

(i) Scratch 1/4 cm x 1/4 cm on the right leg. It was simple in nature, opined to be caused within 24 hours.

The doctor found a fracture on the right lateral epicondyle of Roop Singh on examination of his X-ray. This was an arm injury,

These injuries on both the parties suggest that atleast some of the people of both sides had sharp edged weapons as well as blunt weapons. The injuries on the persons of accused are simple in nature that the injuries on the side of complainant. The injuries on the person of a lady on the side of accused persons were numerous. A number of persons had become injured on both sides. Another feature is that the land of Kh. No. 71/1 on which or near which this incident occurred had been in possession of Roop Singh and Hari Singh etc., after death of Parmanand. Nothing special had been disclosed as to why and when the possession could pass on to the complainant side except that they were claiming right of ownership of it by succession to Parmanand.

The only factor which intervened between the last harvesting of crop by Roop Singh Harisingh etc. and the tight, was that a few days before the fight, the plea for interim injunction against complainant side had been dismissed by civil Court. That order has not been produced to show that the complainant side was prima facie found to be in possession. The entries in revenue record pertaining to the year 1980-81 about Kh. No. 71/1 show ''Roop Singh, adopted son of Parmanand'' as ''Bhoomi Swami''. There is a note in this revenue record that Roop Singh was in possession and he harvested the crop. This entry is dated 23rd June 1981. In Kh. No. 71/2, Roop Singh, Summer Singh, Mulayam Singh, Bir Singh, sons of Hari Singh and Suhag Rani are recorded as ''Bhoomi Swamis''. After harvesting of the Rabi crops, a sowing for next crop was to take place during the period when this light took place. There was no intervening sowing of crops.

As a consequence of dismissal of the injunction plea of Roop Singh, Hari Singh, the complainant side had started ''Bakharni'' operations in the land in dispute since 2-3 days prior to the day of incident. The part of the evidence of prosecution witness appears believable. The accused persons reached there with a Tractor to prevent the complainant side from carrying on ''Bakharni'' and to do their own ''Bakharni''. They had come well prepared with lethal arms like Phrasas, Ballams and lathis. The complainant side too were quite in number and had arms with them including lethal arms.

It is believable that while Bhagwan Singh and his party were restintg to have their mid-day meals after morning time Bakharni, the accused party had reached there and Roop Singh & Hari Singh started ploughing of the field by means of a Tractor, thus, un-doing the ''Bakharni'' carried out by Bhagwan Singh etc. Bhagwan Singh unarmed approached them no to do so and asserted that he would not allow them to undo his Bakharni and to carry out their own Bakharni. At this, Roop Singh & Hari Singh gave Pharsa blows and lathi blows on the head of Bhagwan Singh. The injuries resulted from these blows were the cause of his death. He had fallen down. The companions of Bhagwn Singh then rushed towards Roop Singh and Hari Singh to save Bhagwan Singh and from the opposite side the party members of Roop Singh & Hari Singh came armed with their own weapons and the two sides attacked each other resulting in various injuries which the medical experts had noticed.

The trial Court found similar facts established on record and further found that the fact of first causing such fatal injuries by the accused persons to Bhagwan Singh amounted to exceeding their right of private defence. The trial Court found that the accused Roop Singh and Hari Singh had a right to expel Bhagwan Singh and his companions from the field but they could use only necessary force and causing of death was not justified, under the circumstances. So the trial Court found the offence punishable u/s 304 (Part-I) IPC. The subsequent fight has been found by the trial Court to be in exercise of right of private defence by the companions of Hari Singh and Roop Singh and so far those injuries caused to Bharat Singh, Sher Singh, it was found that the accused had acted in exercise of right of private defence of the person of Hari Singh and Roop Singh and so no offence was committed.

The question in these appeals is whether by doing ''Bakharni'' for 2-4 days prior to the incident in the disputed land, Bhagwan Singh etc., sons of Gorelal could be called in possession of the land. The dismissal of injunction plea raised in a civil Court by Roop Singh, Hari Singh against Bhagwan Singh etc., has not been found to have given any right to Bhagwan Singh etc. The copy of that order has not been proved on record. We do not know what was the exact nature of injunction prayed for and whether it was in respect of possession. In the absence of copy of that order, no firm finding can be given about it. Prayer of interim injunction can be dismissed by a civil Court for a variety of reasons even without holding if one or the other party was in possession, prima facie. So the prosecution has not established the possession of the complainant side. The continuity of the possession of Hari Singh & Roop Singh accused has to be presumed for the purpose of the present case. In these circumstances, the accused persons were justified in approaching the field and start their land tilling operations. The mere fact that for the last 2-3 days, the complainant side Bhagwan Singh etc., might have done ''Bakharni'' operations without knowledge of the opposite side could not be sufficient to hold that they entered into settled possession of the field or the land or that they were in possession on the day of incident. In fact, Hari Singh. Roop Singh etc., had a right to get them out and prevent them from carrying out ''Bakharni'' operations. A person in possession has a right to protect his possession. If another person has entered the land behind the back of the person in possession, the latter has right to throw out the intruder. In doing so, however, the force used has to be limited to the extend prescribed u/s 103 of I.P.C. In case of trespass on immovable property, the right will be only to use such force as is sufficient to exclude the intruder.

It appears to us that the trial Court has rightly held that Bhagwan Singh was unarmed when he approached Hari Singh & Roop Singh to protest against their ploughing of a field with Tractor and thus disturbing his ''Bakharni''. Roop Singh & Hari Singh struck him with Pharsas on his head. This could not be called a justified exercise of right of defence of property. It is not in evidence that other companions of Bhagwan Singh duly armed had approached Hari Singh & Roop Singh alongwith Bhagwan Singh or had threatened Roop Singh and Hari Singh before they struck. The statement or Bharat Singh (P. W. 9) described that Summer Singh was driving the tractor on which Hari Singh, Roop Singh mother of Roop Singh, Mulayam Singh were sitting. They were all armed with Pharsas. Summer Singh continued sitting on the Tractor while others came down. Summer Singh started ploughing with Tractor. Bhagwan Singh asked Hari Singh why he was doing Bakharni. Pushkar Choubey came there and threatened Hari Singh to shoot him. Then at the signal of Ram Gulam, about 14 persons came from their concealed place. They were the accused persons. They were armed and started hitting Bhagwan Singh. The first attack was made by Hari Singh with Pharsa on the head of Bhagwan Singh and then by Roop Singh with a Pharsa. Lajaras also gave a Phara blow on Bhagwan Singh and similarly Mathura. Bhagwan Singh fell down. The witness says that he proceeded to protect his brother Bhagwan Singh. Then accused persons started beating him and others. The evidence of Bahadur Singh (P. W. 11) Moorat Singh (P. W. 7) is on similar lines. Karan Singh (P. W. 16, Nigam Sunil (PW. 18), Kushal (P. W. 19), Premlal (P. W. 20) is also in the same echo. Thus what appears clear from the evidence is that the accused party came there duly prepared for an affray armed with lethal weapons. Bhagwan Singh protested to Hari Singh & Roop Singh orally. By that time there could be no apprehension to the accused persons that any of their member would be hit with lethal weapon or a grievous hurt would be caused to them. There was no justification, therefore, to straight away open the attack with Pharsas on Bhagwan Singh. The trial Court, thus, appears right in holding that there was excess in exercise of right of private defence by attacking Bhagwan Singh in this manner. He could be driven out or could be obstructed from doing Bakharni operations and if he or his party became the first aggressor, then, the right of the accused to use deadly weapons would also arise, but not before. So these two accused Hari Singh & Roop Singh certainly have exceeded their right of defence of private proper. The probability of existence of their right to protect property has been established.

The mere fact that Bhagwan Singh considered that he had bona fide claim of right over the properly, did not entitle him to enter the land without proper legal recourse. The mere fact that injunction plead of the opposite party failed, did not entitle him to enter possession which was continuing with the opposite party. The fact that the plea of Roop Singh and Hari Singh had failed in the civil Court for temporary injunction does not mean that possession of opposite party had been declared or that if Bhagwan Singh started entry into the field, Hari Singh & Roop Singh were bound to do nothing about it or not to protect their possession. As already observed, the nature of plea before the civil Court and the nature of injunction sought is not known. It has not been established by producing copy of the order.

As regards the subsequent event of fight after attack was made on Bhagwan Singh, the State case is that Bhagwan Singh''s supporters wanted to protect him and were acting in defence of Bhagwan Singh while Roop Singh and others had no right of self defence once they became the aggressors.

A right of private defence of person of property is to be considered on facts of the each case. Exceeding the right of private defence ordinarily will not give right of counter defence to the opposite party. That party is the wrong doer from the start. So it can not open attack, even if the first attack by the protecting party is an excess of exercise of right of private defence.

Thus, in the facts and circumstances of the case, once we hold that it was not the case of free fight between the two sides, the act of Roop Singh and his party would be called in defence of their property at the initial stage and in defence of their person also after Bhagwan Singh fell. So their criminal responsibility would not arise in respect of subsequent attack that is attack after Bhagwan Singh was given injuries.

Thus, the trial Court, in our opinion, has reached a proper conclusion that Hari Singh and Roop Singh are guilty of offence punishable u/s 304 (Part-I) IPC. Others had not caused injuries to Bhagwan Singh and their criminal liability does not arise about injuries to others than Bhagwan Singh. Thus the appeal Nos. 1306/87 by State against all the 17 accused as also Cr. A. No. 11/87 by Hari Singh and Roop Singh against State must fail.

Now comes the question of sentence of Hari Singh & Roop Singh, conviction is u/s 304 (Part-I) IPC. The State has appealed for enhancement of sentence of R.I. for 4 years awarded by trial Court in Cr. A. No. 329/87. The sentence u/s 304 (Part-I) IPC can be life imprisonment and fine or it may be imprisonment upto 10 years and fine. The case falls u/s 304 when it is not covered by Sec. 302 IPC because right of private defence has been exceeded. So special leniency cannot be shown because right or private defence has been exceeded. The trial Court was wrong in being lenient to these accused persons on this count. No other reasoning has been given to award such a low sentence. We are of the opinion that sentence of imprisonment for 10 years to each of the accused Hari Singh and Roop Singh should be awarded alongwith fine of Rs. 5000/- each. We accept this appeal No. 329/87 by State and enhance the sentence of imprisonment of Hari Singh & Roop Singh respondents to R.I. for 10 years each and fine of Rs. 5000/- each and in default of fine further R.I. for one year each. The three appeals are accordingly disposed of.