JUDGMENT 1. - This is an appeal against the judgment of the learned Additional Sessions Judge. Merta, dated 24.1.76 by which accused appellants Mana, Ramkaran, Mst. Bhurati and Mst. Panchuri have been convicted and sentenced as follows:- 1 Mst. Bhurati u/s 302/149 Imprisonment for life and a fine of Rs. 50/- 2 Mst. Panchuri IPC 322/149 IPC 1 year rigorous imprisonment and a fine of Rs. 25/-. 148 IPC 6 months RI. 447 IPC 1 months RI. 323/149 IPC 3 months RI. 3 Mana 302/149 IPC Imprisonment for life and a fine of Rs. 50/- 4 Ramakaran 325/149 IPC 1 year RI and fine of Rs. 25/- 323 IPC 3 months R.I. 323/149 IPC 3 months R.I. 447 IPC 4 months R.I. 147 IPC 4 months R.I. 2. According to the prosecution, a report was lodged by Lichman on 56.5.74 at 4.50 p m. at police station Thanwala. It was alleged that an agricultural field known as Pilwawala situated in the 'Rohi' of village Alniawas was being ploughed by Lich Man, his father Marina, his brothers Tiloka and Bali and employee Panchu on the morning of 26th May, 1974. As soon as they started ploughing the field which was found to have already been ploughed during the night; Kana, Ramkaran, Hira, Nanu, Rajuri, Bhurati and Panchuri came there armed with `Lathis' and `Kassis'. Ramkaran asked Lichman and his father Dhanna to stop ploughing the field and on the complainants continue to plough the field, Ramkaran gave a lathi blow on the back of Balu. Mst. Panchuri, Mst. Bhurati and Mst. Rajuri inflicted Kassi blows on the head of Balu as a result of which, Balu fell down. Lichman sustained simple injuries and Tiloka was also beaten along with Dhanna by Ramkaran and Harka. Deena, who tried to intervene, was also beaten. Balu succumbed to his injuries. 3. The police registered a case under Sections 302, 307, 147, 148, 149, 447 and 323 IPC. After investigation, challan was presented against all the accused in the court of Additional Munsif and Judicial Magistrate, Mehta for the commission of the above mentioned offences. Nanu died during the committal proceeding and the other eight persons were committed to the court of Sessions Judge, Merta. The eight accused faced trial on the various charges mentioned above, pleaded not guilty. Rajori, Durga and Harkha pleaded alibi. Nanu died during the committal proceeding and the other eight persons were committed to the court of Sessions Judge, Merta. The eight accused faced trial on the various charges mentioned above, pleaded not guilty. Rajori, Durga and Harkha pleaded alibi. A few of other accused pleaded right of private defence and specifically alleged that the complainant party was aggressor. 4. The learned Additinal Sessions Judge acquitted four accused persons namely: Rajori, Durga, Harkha and Srikishan holding that the presence of these for accused persons at the place of occurrence and at the time of occurrence was not established beyond reasonable doubt. He held that the other accused persons Ramakaran Mana, Bhurati and Panchuri and complainant party would be coming to plough this field a day after it had rained. 5. Inspite of the above fact, the accused went to the field armed with lathis and kassis, their common object being to prohibit the complainant party from ploughing the field and to inflict injuries on them. He was of the opinion that the right of private defence of person or property, if available, was only available to the complainant party & not to the accused party & these accused persons were trespassers. He came to the conclusion that two of them, namely, 1st. Bhurati and Mst. Panchuri inflicted grievous injuries by sharp edged Kassi on the head of deceased Balu which resulted in his death on the spot. 6. The Judge ignored the important feature of the case that the complainant party did not explain the injuries caused to the accused persons during the alleged occurrence & brushed it aside saying that the court had to disengage the truth from falsehood & therefore the evidence cannot be discarded on the ground that the prosecution had failed to explain the injuries caused to the four accused during this occurrence. 7. Aggrieved from the above judgment of the learned judge, the four appellants have mainly pressed this appeal on the shirt point that even if the occurrence as alleged is assumed to be true, then also the accused are entitled to acquittal on the ground that they did so in exercise of the right of private defence of person as well as property. 8. Having heard the arguments of Mrs. Renu Chatterjee on behalf of the accused and Mr. 8. Having heard the arguments of Mrs. Renu Chatterjee on behalf of the accused and Mr. A.K. Mathur Public Prosecutor, we find that the appeal must succeed on this short but the surest ground that all the four accused are entitled to the benefit of the right of private defence embodied in Section 00 to 103 of the Indian Penal Code. The first and foremost point which the prosecution was required to prove in this case and which it miserably failed to prove, if we may say so, is the possession of the complainant party of the field in dispute on the fateful day of the occurrence. 9. Whereas the prosecution has failed to produce any documentary evidence to prove that the land in dispute belongs to the complainant party and that it was being cultivated by them, the accused party have produced clinching documentary evidence consisting of Jamabandi Khewat of village Alnia was Ex. D. 6, revenue receipts Ex. D. 18, copy of Girdawari Ex. D. 18 and copy of the plaint filed by Ramkaran in the court of Assistant Collector, Merta Ex. D. 19. These documents prove that the field in dispute was not only under the Khattedari of the accused party but it was in their cultivatory possession also, since last many years. 10. All the important prosecution witnesses PW. 1 Lichman, PW 2 Tiloka and PW. 4 Dhanna have made admissions in their cross-examinations proving the defence theory that the disputed field was in cultivatory possession of the accused party. To start with, the prosecution witnesses could not give and failed to state the origin, the basis or foundation of their claim of possession of the disputed field. 11. Admittedly the disputed portion of the field in dispute originally was of Madho Jat and the accused party happens to be near relatives of Madho Jat. Accused Ramkaran is son of Mana Jat who was brother of Madho Jat Ex.D 7 revenue receipt describes Ramkaran as adopted son of Madhojat and shows that revenue and the mutation fees of Rs. 13/- was paid for Khasra No. 499 on 3.12.71 by him. Ex. D. 8 also describes Ramkaran adopted son of Madho as the Khatedar tenant of this land and the rent for the Samvat year 2029 and 2030 having been paid on 1.12.73 by Mana, father of Ramkaran accused. Ex. 13/- was paid for Khasra No. 499 on 3.12.71 by him. Ex. D. 8 also describes Ramkaran adopted son of Madho as the Khatedar tenant of this land and the rent for the Samvat year 2029 and 2030 having been paid on 1.12.73 by Mana, father of Ramkaran accused. Ex. D 6 is the Jamabandi Khewat Khatuni of this land and the entry in column No. 5, where the name of the cultivator of tenant is supposed to be mentioned, contain, the name of Madho son of Gena Jat of village Kalvi as Khadedar. Ex D. 18 is Khasra Girdawari of this field from Samvat year 2010 to 2020. In it, Madho son of Gena Jat has been shown as one of the Khatedars who have cultivated this land throughout. 12. Ex. D. 19 is the copy of the plaint filed by Ramkaran son of Madho jat against the complainant party considering of Dhanna Ram, Balu, Lichman, Tiloka, Nanu etc. for injunction under Section 188 of the Rajasthan Tenancy Act in the court of the Assistant Collector, Merta. Accused Ramkaran who is plaintiff' in this case had inter alia alleged in this plaint that in the village Alnia was agricultural land 171/2 bighas of Khasra No. 1364 having a total of 220 bighas is in his Khatedari & cultivatory possession. The plaintiff Ramkaran and his deceased father have been in cultivatory possession of this land and are the Khatedars since the beginning. That the Girdawari record of this land is in favour of the plaintiff and he has been paying the revenue rents. He is producing Girdawari Khewat Khatauni and revenue receipts to prove the above averments. 13. According to this plaint, the plaintiff's grievance was that the complainant party, who are defendants in that case, formed an unlawful assembly with the unlawful intention of grabbing this land and they came near the field on 10.8.72 when the plaintiff was cultivating this field and with the unlawful object of obstructing the plaintiff from cultivating the field, they tried to enter into the field and obstruct the plaintiff. However on account of intervention by the other people they went back. However on account of intervention by the other people they went back. Again on 25.2.73, they threatened the plaintiff of blood-shed and as they were proceeding in their nefarious deign to grab this field, is was expedient in the interest of justice that permanent injunction should be issued restraining them from interfering in the cultivatory possession of the plaintiff' on this land. This suit was presented on 28.3.78 by the plaintiff accused Ramkaran and is prior in time to the date of occurrence which is 26.5.74. 14. We are of the opinion that the above documentary evidence showing the cultivatory possession of accused Ramkaran and his party is corroborated by the admissions of the prosecution witnesses also. PW. 1 Lichman who made a tall claim in examination-in-chief that he had been cultivating this field from his childhood and paying the lard revenue failed to produce any document in support of it. In cross-examination, he admitted that in the field of Pinwawala, there are 7 co-sharers, one of them being Madho jat. He stated that the accused Maria is the brother of Madho jat and Ramkaran is son of Mana. The filing of the suit by Ramkaran against him in the court of Assistant Collector which is still pending was also admitted and on application of Ramkaran, according to this witness, this field has been attached after this occurrence by the SDM under Section 145 Cr.PC proceedings. He further admitted that it rained prior to the day of occurrence and the field had already been ploughed when they reached there. He suspected that it would have been ploughed by accused Ramkaran and others. He also admits that up to 2 or 3 months time prior to the date of occurrence, they had not visited this disputed field and he does not know whether accused Ramkaran and the women members of the family had cleared the weeds from the disputed field four or five days prior to this occurrence. 15. He also admits that up to 2 or 3 months time prior to the date of occurrence, they had not visited this disputed field and he does not know whether accused Ramkaran and the women members of the family had cleared the weeds from the disputed field four or five days prior to this occurrence. 15. The case of the defence it further strengthened by admission of PW 2 Tilok when he stated that they had not gone to the field up 2 or 3 months prior to this occurrence and they had not cleared this field of the weeds an HINDI MATTER If any lurking doubt suspicions remained about the defence version in relation to the cultivatory possession of the accused parts they were removed by PW 4 Dhanna. Dhanna admitted that the land of Shri Madho had been mutated in the name of Shri Ramkaran accused. He also admitted that the field of Pilwawala was partitioned three years back & Ramkaran filed revenue shit in the court of S.D.M. prior to this occurrence. He candidly conceded that the land the share of Shri Madho & the name of Shri Madho is there in tie Girdawari & Khatauni he did not object to it. He has taken the wind out of the sails" by admitting that they had gone on this field on Jeth Sud 5 only & they had not gone there earlier to that day & they found that the field had been ploughed, the suspicion being that accused Mana and others had ploughed it. 16. The above admissions of the prosecution witnesses prove that the defence case that on 26.4.74, the field of Pilwawala Khasra No 1364, 16 bighas was in actual cultivatory possession of accused Ramkaran, Mana and his patty. It is further proved that at the time when the complainant party went to plough this field, it had already been ploughed by the accused party. 17. In fact, learned Judge himself has given positive finding in this respect, as would be evident from the following portions of his judgment. "The fact that one Shri Madho Jat real brother of accused Shri Mana was also one of the co-sharers in this field comprised in K. No 1364 situated in the rohi of village Alniavawas is proved on record from the copy of the Khatoni Ex D6 which is of the year S. 2028-31. "The fact that one Shri Madho Jat real brother of accused Shri Mana was also one of the co-sharers in this field comprised in K. No 1364 situated in the rohi of village Alniavawas is proved on record from the copy of the Khatoni Ex D6 which is of the year S. 2028-31. In it the name of shri Madho Jat has been shown as co-khatedar with other persons of this Kh. No. 1364. This fact is also admitted by PW. 8 Shri Gopal who is another co-sharer in this land. Even PW Shri Dhanna has to admit indirectly that Madho Jat was co-sharer in this land as he has stated that mutation of the land which has fallen into the share of Shri Madho Jat was sanctioned in favour of accused Shri Ram karan. It is also admitted fact that the partition of this lard took place about 4 years back amongst its co-sharers. In the copy of the Khatoni Ex. D6 the date of partition is given as 38.71 and it is alt o stated in it that Sri Madho Jat was given 171/2 bighas and I biswa of this land. It also mentioned in Ex D6 that the mutation of the land which had fallen to the share of Shri Madho Jat was sanctioned in favour of accused Mr. Ramkaran on 5.10.71. This fact is also admitted even by P.W Mr. Dhanna & PW Shri Gopal in their statements P.W. Shri Dhanna has also given the adjoining field of the field which had fallen to the share of Madho Jat. According to him in the cast of that field there are fields of Bholu & Onkar, in the west there are fields of Shri Shankar & Magns Jat & in the north the field is of Magna Kumar. PW 1 Mr. Magna & Mr. Sarkar Jat were adjoining to the disputed field in the west. PW 8 Mr. Gopal has stated that towards the east of the disputed field, the field is of Mr. Bholu. Thus it can he safely said from the above evidence that disputed field had fallen into the share of Shri Madho jat. In the partition which took place on 3.8.71 & latter on mutation of it was also sanctioned in favour of accused Mr. Ramkaran on 5.10.71." .... Bholu. Thus it can he safely said from the above evidence that disputed field had fallen into the share of Shri Madho jat. In the partition which took place on 3.8.71 & latter on mutation of it was also sanctioned in favour of accused Mr. Ramkaran on 5.10.71." .... "Thus accused Shri Ramkarn happened to acquire right in this disputed field only on 5.10.71 " The documentary evidence referred to above aid the admissions of the prosecution witnesses, the only rational and logical conclusion which could have been arrived at would have been that the accused persons were in the actual cultivatory possession of the held in dispute, on the day of occurrence. Therefore, the finding of the Judge that the land was in possession of the complainant party was in our opinion, wrong he was wrong in placing reliance upon the oral testimony of PW 7 Nannu, PW 8 Gopal and PW Demi, all of whom are caste brothers of the complainant party and also related to Shri Dhanna. 18. It is true that the relationship in itself is not enough to discard their testimony. But when the important checks to decide the value of their testimony are available in the form of documentary evidence, it was the duty of the learned judge to have closely applied there, instead of placing blind reliance on their oral testimony, by counting heads only, more so, when the witnesses are relatives. 19. Mahavirsingh Patwari who appeared as PW. 13 is the author of map Ex P. 26 prepared for the purpose of police investigation. Ex. P 26 is the map- cum-site plan which was got prepared by the SHO police after the registration of the present case. The heading of this site-plan shows that the patwari was required to show how the entire field has been divided and partitioned. It was, an HINDI MATTER It is curious that when the revenue record did not slow the name of the complainant party as already mentioned above and it showed the name of Madho Jat & which was later on mutated in favour of Ramkaran accused how could the patwari, while preparing the map disregard it? The obvious inference is that in the wake of the murder of Balu, the S.H.O. wanted the occurrence Spot to be marked with reference to the Khasra Nos. The obvious inference is that in the wake of the murder of Balu, the S.H.O. wanted the occurrence Spot to be marked with reference to the Khasra Nos. and under the supervision of the SHO, it was prepared with the designed motive of proving complainant party's title and possession over the disputed land. 20. It is the admitted case of the prosecution that in the night prior to to the day of occurrence, the disputed field was cultivated by the accused party. It is also admitted by the prosecution witnesses that they went only in the morning of the fateful day when the occurrence took place. The complainants Dhanna PW 4, Lichman PW 1 and Tilok PW 2, on a searching Cross-examination conceded to this position and disowned their possession and cultivation in that particular season at least. How can the patwari improve that position ? Would it not be becoming "more pious than the Pope himself". The reliance placed by the learned judge therefore, on testimony of PW 13 Patwari Mahavirsingh appears to be untenable. 21. An inference has been drawn by the learned judge that after the filing of the plaint, the accused party must have tried to obtain an injunction order and as that is not forthcoming on the record, it shows that no injunction was granted and therefore the accused party was not in possession of this field in the year 1972, though they had started paying the land revenue of this field as is evident from the receipt of Ex. D. 7 and Ex. D. 8. The learned Judge did not stop here and further drew an inference that the fact that the injunction was not obtained proves that the complainant party consisting of Dhanna and his sons continued to be in possession of it even after the partition dated 3.8.71 when this field full the to the share of Madho and they continued to cultivate it as before. 22. We are not prepared to draw such an inference from the fact that an injunction was not obtained and produced in the record of this case. The fact that injunction was not obtained earlier cannot lead to the reference that any advertising was given by the court by implication & that too regarding the possession. 22. We are not prepared to draw such an inference from the fact that an injunction was not obtained and produced in the record of this case. The fact that injunction was not obtained earlier cannot lead to the reference that any advertising was given by the court by implication & that too regarding the possession. There is nothing on the record to show that any application was moved earlier and pressed and injunction was refused by any speaking order. In our opinion, absence of an injunction cannot be a premise on which a criminal court can draw an inference that a particular party was in possession the date of occurrence. 23. It is not without significance in this case that the prosecution has, in order to prove their possession procured Ex. P 8. the genuineness of which has been doubted by the trial court. The fact that prosecution chooses to produce tainted and fabricated documentary evidence like Ex P 8 is a circumstance against the prosecution. 24. The revenue laws of the Rajasthan State contemplate a series of documents to evidence the title and possession of the cultivator on agricultural field in the form of jamabandi Khewati, Khatauni, Girdawari, revenue receipts, mutation orders, mutation, entries. The prosecution, faced with the difficulty that these documents consisting of the reliable trustworthy Governments records are in favour of the accused party, resorted to the production of Ex. P8, a fabricated document. 25. During the course of arguments, we repeatedly enquired from Mr. Mathur as to what was the source or basis on which the complainant party got into possession of the disputed field. As is well known, the possession can be either obtained on the basis of obtaining of title which can be either by sale or gift or will ; or it can be by obtaining it unlawfully & then claiming adverse possession. The third method is permissive possession. 26. A detailed study of the oral and documentary evidence produced in this case shows that the complainant party has not been able to trace back the origin of either possession Mr. Mathur candidly conceded that it was not possible to trace back the origin of possession but he argued that it is immaterial so long as it is premed that he complainant party was in possession at the time the incident took place. Mathur candidly conceded that it was not possible to trace back the origin of possession but he argued that it is immaterial so long as it is premed that he complainant party was in possession at the time the incident took place. We are in agreement with him on the principle but the significant feature of this case is that it is admitted position in this case that during the night prior to the morning when this incident took place, the disputed field was cultivated by the accused party and earlier to it, they did preparation of the soil in it which is called 'shoot' in local dialect of Marwari language. Coupled wall this is the admission of the prosecution witnesses that they did not go in this field in that season at least earlier to the time when the occurrence took place. It clearly establishes that the possession of the disputed field was of the accused party. The complainant party was not having a semblance of possession not only on the fateful morning of 16.4.74 when this incident took place but even earlier to it, in any case, at least for a few month. 27. It is also established law that 'possession fellows title' in case of open field unless the contrary is proved. The title though in material in a criminal case, was also prima facie in favour of the accused party. 28. We therefore hold that accused party was in cultivatory physical and actual possession of the disputed field on 26.4.74. 29. The complainant party wanted to oust the accused party from the field in dispute and they came to the field with this intention only. They wanted to take possession of the field by using force and taking the law in their own hands. 30. Before we proceed to closely examine the crucial question whether, the accused had right of private defence of person and property in this case, it would be useful to have a brief summary of the various injuries caused to the complainant party as well as the accused. According to PW 10 Dr. Pratapsingh deceased Balu had three incised wounds and two bruises. On opening of his skull it was found that he had three fractures in the skull corresponding to the incited wounds which caused coma and death. According to PW 10 Dr. Pratapsingh deceased Balu had three incised wounds and two bruises. On opening of his skull it was found that he had three fractures in the skull corresponding to the incited wounds which caused coma and death. PW Lichman had one lacerated wound PW Tilok had been examined by PW 16 Dr. S. R. Mittal who found that there were four lacerated wounds, one abrasion one bruise and swelling at two places on his person. The same doctor examined PW Dhanna and found that he received one lacerated wound and further there was swelling. He complained of pain in inter-scapular region though no external injury was visible on that place. There was also bruise on the lower lip opposite to the teeth No. 1, 2 and 3 which were also lost recently. PW Panchu had one lacerated wound. 31. The same doctor examined the injuries of the accused party and found that there were two lacerated wounds on the hand of accused Ramkaran and he also complained of pain on inter scapular region. Accused Mana also suffered one lacerated wound in addition to abrasion and swelling at one place. Dr. Tulchha Ram PW 6 also examined the injuries of accused Ram Karan, Panchu, Srikishan, Durga and Mana. According to him, he found injuries on the person of Ramkaran, Panchu, Mana and Srikishan. 32. The above brief survey of the injuries sustained by both the parties reveal that though the complainant party suffered major injuries, the fact that accused party suffered Lacerated wounds cannot be brushed aside merely on the hypothetical submission of the Government Advocate that they all might have been caused due to fall during the incident. 33. The prosecution witnesses were asked to explain the injuries caused on the person of the accused but they disowned the injuries and failed to give any satisfactory explanation regarding them. A few of the prosecution witnesses even went to the extent of saying that the accused themselves caused injuries to their person by striking between themselves, a proposition which is difficult to be appreciated in the cage of lacerated wounds at least. We are in agreement with the submission of Mrs. Chatterjee learned ,counsel for the accused that it was the duty of the prosecution to explain these injuries of the accused, and they have failed to do so. 34. We are in agreement with the submission of Mrs. Chatterjee learned ,counsel for the accused that it was the duty of the prosecution to explain these injuries of the accused, and they have failed to do so. 34. Hon'ble Fazl Ali J. in the case of Laxmi Singh and others v. State of Bihar, 1977 CAR 28 (SC)Part I sitting with Hon'ble Justice P.N Bhagwati in the Supreme Court, observed that in a murder case the non-explanation of the injuries sustained by the accused, at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw the following inferences:- 1. That the prosecution has suppressed the genesis and the origin of the occurrence and thus not presented the true version. 2. That the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable; and 3. That in a case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution to explain the injuries or the person of the accused assumes much greater importance where the evidence consists of interested criminal witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In the instant case, when we have held that injuries were caused to at least four accused two of whom sustained lacerated wounds and further when the defence has come out with a positive case of the private defence of person and property, the omission on the part of the prosecution to explain the injuries makes defence case probable. The prosecution evidence regarding the incident, consists mostly of the witnesses who constitute the family of Lichman, Lichman, Tilok, Dhanna and deceased Balti all constitute one family, and Panchu was their employee. In such a case, the absence of explanation of the injuries of the accused assumes still greater importance. 35. The prosecution evidence regarding the incident, consists mostly of the witnesses who constitute the family of Lichman, Lichman, Tilok, Dhanna and deceased Balti all constitute one family, and Panchu was their employee. In such a case, the absence of explanation of the injuries of the accused assumes still greater importance. 35. In the State of Gujarat v. Bai Fatma and another, Criminal Appeal No 67 of 1971 decided on March 19, 1975 , Untwalia J. speaking for the court observed that in such a case, one of the results which can follow may be that the accused had inflicted the injuries on the members of he complainant party in exercise of the right of self defence. The second proposition which may be possible in such a case is that it makes the prosecution version of the occurrence doubtful and the charge against, the accused cannot be held to have been proved beyond reasonable doubt. 36. The facts of the present case clearly fall within the four corners of the first proposition laid down by Untwalia J. In the instant case, the accused were fully justified in causing the death of the deceased & were protected by the right of private defence of person, as they were themselves under apprehension of death or grievous hurt. 37. Mr. Mathur Public Prosecutor relied upon the third principle laid down in this case, that in a given case, the non explanation nay not effect the prosecution case at all. We are conscious of that proposition also that there may be cases where the non-explanation may not in itself affect the prosecution case. But as held in Laxmi Singh's case, this principle is obviously applied to cases where the injuries sustained by the accused are minor or superficial or where the evidence is so clear or cogent, so independent, probable, consistent and credit worthy than it far outways the effect of omission on the part of the prosecution to explain the injuries. We feel, that the present case is certainly not one of those cases where the injuries caused to the four accused can be brushed aside. The learned judge committed serious error in ignoring this serious infirmity in the present case on premises which are unconvincing and untenable both in fact and in law. 38. We feel, that the present case is certainly not one of those cases where the injuries caused to the four accused can be brushed aside. The learned judge committed serious error in ignoring this serious infirmity in the present case on premises which are unconvincing and untenable both in fact and in law. 38. The important question which now remains to be finally decided is whether the accused where are certainly responsible for causing the death of Balu & injurier to other complainants, can claim the right of private defence of person or property in this case. We are firmly of the opinion that in the instant case, as the accused party consisting of Mana, Ramkaran and others was in the actual possession of this field in dispute and had already prepared the land by doing `hood' and then ploughed it in the night earlier to the morning when the occurrence took place, they were within their right to defend any attempt by the complainant party to oust them physically and take possession of this field. 39. The exact sequence of events is little obscure in this case because the prosecution witnesses have given different version as to how the incident took place. However, they are all almost unanimous on the point during cross examination that as soon as the complainant party started re-ploughing the land, the accused party attacked them. 40. This field is situated in a small village Alniawas near village Kalvi in district Nagaur in Rajasthan. It is well known that this area is a one crop area and due to that, farmer's only source of livelihood is the crop which they cultivate in the months of April to August. The entire economy of the farmers being dependent upon the cultivation of the agricultural land in time, the ploughing of the field at the crucial time when rain comes is a matter of great importance on which the economic existence of the family depends. 41. It appears that the land in question being only 16 or 17 bighas, it was very small area and the accused party was not prepared to take any risk of starvation by giving it up or omitting to cultivate it. 41. It appears that the land in question being only 16 or 17 bighas, it was very small area and the accused party was not prepared to take any risk of starvation by giving it up or omitting to cultivate it. In this background, the accused party having done 'Shood' as per the admission of the prosecution witnesses they would not allow the complainant parts to replough the land which they had ploughed earlier in the night. This is the normal instinct of every tiller of the soil and a farmer or cultivator usually stakes his life for retaining possession of the agricultural land. In this view of the matter, if Ramkaran, Mana and others inflicted injuries on the person of the complainant party namely Balu and others, when they forcible tried to replough the land it would be certainly a right to which they are entitled as of right in defence of their property u/s 104 IPC. Of course they could not cause death on that score because S 103 Indian Penal Code cannot be invoked in this case. 42. But the fact that injuries were caused to the accused party shows that the complainant party was not prepared to withdraw on resistance being put by the accused party but insisted on taking possession by beating the accused party. The accused on being injured, got reasonable apprehension that they would be killed or receive grievous hurt. That precisely gave them the right of private defence of person under Section 100, IPC. Therefore, if the accused party had inflicted a number of it injuries on the person of the complainant party, resulting in the death of Balu, they were within their right of self defence and cannot he held guilty of either murder or of grievous hurt or of causing hurt, as per exception contained in Section 100 IPC. 43. The instinct of self preservation which causes so many creatures to fight back savagely when harmed or frightened was protected in the ancient laws of all the countries. Russel in his treatise en Crimes Volume (12th Edition published in 164) says as follows:- "...... 43. The instinct of self preservation which causes so many creatures to fight back savagely when harmed or frightened was protected in the ancient laws of all the countries. Russel in his treatise en Crimes Volume (12th Edition published in 164) says as follows:- "...... it is to the instinct of self-preservation, which causes so many creatures to fight back savagely when harmed or frightened that some of the peculiarities on ancient criminal law are thought to be due." The later concept according to Russel was that merely to bring about a prohibited harm should not involve a man any liability to punishment unless in addition he could be regarded as morally blame worthy and this concept was enshrined in the well-known maxim "Actus non facit reum nisi mens sit rea". Thus, under the common law, in order to punish a man of a crime, two requirements were envisaged namely, that there must be both a physical element & a mental element in every crime. This has been popularly termed as "mensrea" in our Indian law & there are crimes where it cannot be insisted upon. ever, the right of self-preservation is the basic nucleus from which the right of private defence of property and person has been enacted in the Indian Penal Code under Sections 96 to 106, Chapter 4 of the IPC. 44. It would be interesting to know the state of ancient laws in our country. "Vyavahara Mayukha" describes first who can be called 'Atatayin' i.e., with a felonious intent. Vashistha says that an incendiary, a poisoner, one armed with a weapon one who robs another of his Health, one who snatches another's field and wife, these six are "Atatayins". 45. Manu says "One may certainly kill without hesitation a man who comes upon him as an Atatayin whether he be a teacher or a child or an old man or a learned Brahmana". 46. Katyayana says "One may go on to kill another who approaches as an Atatayin (i.e. with a felonious intent) even if he be one who has throughly mastered the Vedas; thereby he does not incur the sin of Brahamana murder. 47. 46. Katyayana says "One may go on to kill another who approaches as an Atatayin (i.e. with a felonious intent) even if he be one who has throughly mastered the Vedas; thereby he does not incur the sin of Brahamana murder. 47. The ancient Shastras have given great importance to the right of private defence and made it a religious duty of a person to kill a person who is an "Atatayin" if he comes raising hie weapon aid if one fails to kill him, he would become guilty as a murderer" In the Mitakshara, Galava says 'He who kills even a learned Brahmana who approaches as an Atatayin raising his weapon to strike does not become the murderer of a learned Brahmana. He would be so if he did not kill him." 48. Brahaspati says "He who kills a Brahmana felon versed in the Vedas and born of a good family does not commit a Brahmana murder; he would be guilty of Brahmana murder if he did not kill him". 49. The conclusion of Smrati Jandrika is that even a Brahmana felon coming to kill a man is by all means to be slain (3). 50. P.V. Kane in his treatise on the history of Dharamshashtra Volume III, Government Oriented Series Class B, No 16, deals with the important question of private defence of person and property as it was recognised by the Dharamshastra works. He also terms the invader as Atatay in (a desparate man) who is an incendiary or a poisoner or is armed with a weapon or is a robber carrying away another's wife or snatching by force a field. 51. According to Katyayana, "No blame attaches to a man who kills wicked men that are about to kill another". Sanskrit text of it is as follows. (Text recited) 52. The distinction of Brahmana and non-Brahmana so much insisted upon by Manu, Vashistha, etc. in that age of Indian laws, has disappeared. The 'Varna' theory is now a matter of history only. We are now as per the Indian Constitution and laws of the land, living in a caste-less society except recognising linguistic or religious minorities, or some reservations for the age-old down trodden and less privileged classes of the society. Therefore, what Manu or Brahaspati Katyayana laid down, is to be viewed in its application to all citizens now. We are now as per the Indian Constitution and laws of the land, living in a caste-less society except recognising linguistic or religious minorities, or some reservations for the age-old down trodden and less privileged classes of the society. Therefore, what Manu or Brahaspati Katyayana laid down, is to be viewed in its application to all citizens now. Even before coating into force of the Indian Constitution, Indian Penal Code introduced by the Britishers made no distinction of caste, creed and therefore our references to "Dharamshastra" made above have been made only with the precise limited object of showing that the right of private defence of person and property was not only recognised but put at a very high pedastal in the ancient Indian jutis-prudence also. They should not be read construed for any other purpose. 53. The above short survey of the old ancient Indian Laws witch were known as "Bharamshastras" and ' Smratees" would show that the English people, while enacting the provisions of right of private defence of person & property under the exceptions of Indian Penal Code (Section 96 to 106) have virtually adopted or re-accepted the Laws which were prevalent here. It goes without saying that the English law and the Roman law on the subject of the private defence is in no way different from the Indian law as mentioned above. 54. Of course, the Mitakshara according to Galava puts the right of private defence to such a high pedastal that if a person fails to defend from an "Atatayin" who comes to strike raising his weapon, he would become guilty of murder. 55. Thus the right of private defence has with stood all tests and trials in all laws and have been recognised as such since centuries back. That being so, the Indian Penal Code's recognition of it is only a recognition of the natural rights or inherent rights which a human being possesses by his birth for living in the society. It is in this back ground that we have to appreciate the right of private defence of person and property exercised by the tillers of the soil in a desert area like Rajasthan where the only source of bread and butter to him and his family is the agricultural field. It is in this back ground that we have to appreciate the right of private defence of person and property exercised by the tillers of the soil in a desert area like Rajasthan where the only source of bread and butter to him and his family is the agricultural field. Even the ancient Dharamshastras provided this right to defend the field from "At tayin", a felon or an invader and what the accused Mana, Ramkaran, Mst. Bhurati and Mst. Panchuri did in defending themselves and their property is squarely covered by the present section 00 so far as the death is concerned and section 104 Indian Penal Code so far as the injuries caused to the complainant party is concerned. 56. Mr Mathur Public Prosecutor finding himself in difficulty on the point of getting the judgment of the learned judge sustained or the question of actual possession, lastly submitted list in any case, the accused exceeded the right of private defence According to him, the injuries caused to the complainant party are much more in number and also severe in comparison to the accused party. It the question of right of private defence to person was required to be decided on the counting of number of injuries, we would have accepted the contention of Mr. Mathur, as undoubtedly he is correct in counting the numbers and there is no arithmetical mistake in it. But are we here to solve "mathematical equations" or screen "statistical data" to find out "correlation analysis", "consistency analysis, or "ratio analysis'? Surely we have to judge the human psychology as it is expected to be when placed in the situation of either 'strike or vanish', 'do or die' and not to solve the mathematical problems. Human problems can never be equated with those of Algebra or statistics. 57. We have to put ourselves in the position of a tiller who with great expectations has prepared the soil for cultivation and then cultivated it being sure that he his got the title and possession of the property and he would reap the fruits of his labour. What could be the reaction when suddenly he finds that some person comes & tries to take possession of that cultivated ploughed field and thereby not only wants to deprive hire of the land but also of the cultivation which had earlier taken place ? 58. What could be the reaction when suddenly he finds that some person comes & tries to take possession of that cultivated ploughed field and thereby not only wants to deprive hire of the land but also of the cultivation which had earlier taken place ? 58. It is true that sitting here in the court room and while making a fine distinction between the extent of the right of private defence of person and property available to a party; We may, by analysing the niceties of provisions of sections 100, 102 and 103, 104 of the Indian Penal Code, enter into a "mental gymnasium" regarding the quantum of the free which should have been used. But can the tiller of the soil defending his only source of livelihood end the ploughing and cultivation which he has done and which is likely to give him hardly "two square meals" a day with difficulty weigh each blow which they would give to defend that property and person; in goldon scales. Is he not entitled to protect himself and his property ? 59. In order to judge the conduct of the present appellants in defending their field and person fit m the deceased Balu, Dhanna and others of the complainant party, we cannot do better than to take guidance from the important principles laid down by Hon'ble Justice Gajendragadkar (as he then was) in the leading case Jaidev v. State of Punjab wherein it was observed as follows, "In judging the conduct of a person who proves that he had a right of private defence, allowance has necessarily to be made for his feelings at the relevant time. He is faced with an assault which cause a reasonable apprehension of death or grievous hurt and that inevitably creates in his mind some excitement and confusion. At such a moment, the upper most felling in his mind would be to ward off the danger & to save himself and his property, and so he would necessarily be anxious to strike a decisive blow in exercise of his right. It is no court true that in striking a decisive blow, he must not use more force than appears to be reasonably necessary. It is no court true that in striking a decisive blow, he must not use more force than appears to be reasonably necessary. But in dealing with the question as to whether more force is used than is necessary or than was justified by the prevailing circumstance, it would be inappropriate to adopt tests of detached objectively which would be so natural in a court room for instance a long after the incident has taken place. The mean which a threatened person adopts or the force which he uses should not it be weighed in golden scales. To begin with, the person exercising a right of private defence must consider whether the threat to his person or his property is real and immediate. If he reaches the conclusion reasonably that the threat is immediate and real, he is entitled to exercise his right. In the exercise of this right, he must use force as soon as the threat has disappeared. So long as the threat lasts and the right of private defence can be legitimately exercised, it would not be fair to require that "he should modulate his defence step by step, according to the attack, before there is reason to believe the attack is over." Mr. Mathur, Public Prosecutor wants us to consider the question as to more force was used than was necessary by adopting test of detached objectivity which would be so natural in a court room for instance long after the incident has taken place. But that would be as justice Fazal All has put in the above case (4) expecting from the threatened prison to se the force after weighing it in golden scales Again that would be expecting from the accused chat they should modulate their defence step by step according to the attack before there is reason to believe that the attack is over. This expectation is neither fair nor feasible. 60. In the ordinary course of human conduct the accused's upper most instinct when they are threatened with extinction of their person and property mould be to ward off the threat by whatever methods and means they can (Sic) ad vt without permitting the opportunity to the complainant party to succeed in their objective. 61. 60. In the ordinary course of human conduct the accused's upper most instinct when they are threatened with extinction of their person and property mould be to ward off the threat by whatever methods and means they can (Sic) ad vt without permitting the opportunity to the complainant party to succeed in their objective. 61. The leaned Judge in this case has held that instead of the accused having the right of private defence of property and person, it was the complainant party which exercised the right of private defence of property and person in this case Obviously this finding is vitiated because we have earlier held that the premises on which this finding is bated was that the field in question was in actual possession of the complainant party at the time the incident took place. Since this finding cannot be sustained, the case of the prosecution stands" knocked out". 62. In view of the above conclusions to which we have carefully arrived after perusing the entire record. We are of the opinion that the accused party consisting of Ramkaran, Mana and others did not exceed the right of private defence of person. 63. It may be that the incident goes unpunished but that is the precise effect of the exceptions laid down from Section 7 to Section 104 of the Indian Penal Code. It is equally important that the possession of land and person of the accused is protected from all invasions and aggression. The complainant party according to us could have, if all they thought that they had any right, gone to a court of law. If they were of the opinion that the ploughing of the field and also preparation of the suit earlier to it by the accused parts was an act of trespass, they should have gone to the police station and filed a criminal case. It cannot provide justification to them to take the law in their own hands and try to forcibly dispossess the accused partly and beat them. 64. We may, however, add that our findings and observations regarding possession and title of disputed field, would in no way affect the decision in respect of the dispute about this property; in the litigation which is pending between the parties in the revenue suit or other litigation. 65. 64. We may, however, add that our findings and observations regarding possession and title of disputed field, would in no way affect the decision in respect of the dispute about this property; in the litigation which is pending between the parties in the revenue suit or other litigation. 65. We, therefore, accept this appeal, set aside the convictions of all the appellants under Section 302 read with 149, 325, 325/149, 323/149, 323, 148, 147 and 447 of the Indian Penal Code and acquit them of all the charges. All the four accused are in jail and they will be released forthwith if not required in any other case.Appeal accepted. *******