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2012 DIGILAW 247 (CHH)

GAIND SINGH v. STATE OF C. G.

2012-09-25

T.P.SHARMA

body2012
ORDER 1. By this revision, the applicant has challenged legality & propriety of the judgment dated 26.4.2002 passed by the Additional Sessions Judge, Bemetara, in Criminal Appeal No.Il/98, affirming the judgment of conviction & order of sentence dated 2.12.1997 passed by the Judicial Magistrate First Class, Bemetara, in Criminal Case No.24/89, whereby and whereunder the Judicial Magistrate First Class after holding the applicant and other deceased accused persons guilty for commission of criminal trespass, causing grievous injuries to Mekdu convicted applicant Sita Ram under Section 447/34 and 325/34 of the IPC and sentenced to undergo fine of Rs.500/- and R.I. for six months and fine of Rs.200/-, in default of payment of fine to further undergo R.I. for one month for each default. 2. During pendency of the revision, applicant No.1 Gaind Singh and applicant No.3 Jaipali died and revision filed against them is abated. 3. I have heard teamed counsel for the parties, perused the judgment impugned, judgment of the trial Court and records of the Courts below. 4. At the outset, learned counsel for applicant No.2 submits that there was serious land dispute between the present applicant along with his family members, they were in possession over the property, they have shown the crop and at the time of harvesting the crop, the complainant party went to field for harvesting and dispute took place, thereafter with a view to save the property the applicant and other persons have used criminal force in exercise of their private defence of person and property. The present applicant has not exceeded right of private defence of person and property, the present applicant has not caused any injury to Mekdu or any person in sharing common intention and persons caused injuries to the complainant party are personally responsible for their act attributed. Learned counsel further submits that evidence of alleged complainant/injured Mekdu (PW-7) does not inspire confidence and trustworthy, his evidence is full of omission, contradiction and exaggeration. As per his evidence, even he does not know that who are owners of the fields and fields are recorded in whose names. Sale deed of most of the property has been executed in the name of wife of deceased accused Gaind Singh and mother of the present applicant, therefore, the present applicant was authorized to cultivate the field, to harvest the crop and to save the property, even by using force required. Sale deed of most of the property has been executed in the name of wife of deceased accused Gaind Singh and mother of the present applicant, therefore, the present applicant was authorized to cultivate the field, to harvest the crop and to save the property, even by using force required. Learned counsel also submits that by convicting and sentencing the applicant both the Courts below have committed illegality. 5. On the other hand, learned Government Advocate for the State opposes the revision and submits that the Courts below have rightly convicted and sentenced the applicant as aforementioned. 6. As per evidence of patwari Komal Prasad Sharma (PW-1), dispute is related to khasra No.146 situate at Gadwa, Police Station-Khamriya. Grievous injury to Medku (PW-7) is not in dispute and has been proved by the evidence of Dr. G.N. Tiwari (PW-8), which reveals the fracture of 5th metacarpal of right palm. As per evidence of Medku (PW-7), the applicant along with eighty persons has caused injuries to him when he was present in the field. They also assaulted to Gangadhar and other persons. In para 2 of his evidence he has deposed that he does not know who has lodged the report. In para 4 of his cross-examination he has admitted that the land has been transferred by Gofe to mother of the present applicant and wife of deceased applicant Gaind Singh. He has further deposed that he was not in a position to say that who are owner of the field. As per his evidence, eleven acres of the land has been transferred by Gofe to wife of deceased accused Gaind Singh i.e. mother of the present applicant and as per F.I.R. Ex.P/7 eleven acres of the land is in question in the present case. His detail cross-examination reveals that virtually he was not having personal knowledge about the ownership of the field where incident took pace. His brother Gangadhar (PW-4), another injured witness, has deposed that he does not know who has caused injury to Mekdu. In his cross-examination he has admitted the serious dispute relating to field/land. He is son of Devsingh. His detail cross-examination reveals that virtually he was not having personal knowledge about the ownership of the field where incident took pace. His brother Gangadhar (PW-4), another injured witness, has deposed that he does not know who has caused injury to Mekdu. In his cross-examination he has admitted the serious dispute relating to field/land. He is son of Devsingh. His uncle Gofe has transferred the land to wife of Gaind Singh, In para 2 of cross-examination he has very specifically and clearly admitted that on the basis of aforesaid document the applicant and deceased accused persons are not permitting them for cultivation of the land and for harvesting of the crop. 7. Evidences of Mekdu (PW-7) and Gangadhar (PW-4) clearly reveal that there was serious dispute about the ownership and possession of the alleged eleven acres of the land, which has been transferred by Gofe in the name of mother of the present applicant and applicant and others have debarred them from cultivating the field and harvesting the crop. Therefore, by entering in the field occupied by the applicant/accused persons, specially Mekdu has exceeded his right, although the prosecution has not proved the fact that who has caused injury to Mekdu, but even otherwise, it is presumed that the present applicant has caused grievous injury to Mekdu resulting into fracture of 5th metacarpal of right palm, it should not be inferred that the applicant has voluntarily caused grievous injuries to Mekdu. Right of private defence was available to the person who was in possession of the field and the aforesaid injury reveals that he has not exceeded right of private defence of person and property. The applicant/accused is not required to prove/establish his right of private defence by adducing evidence. It can be inferred on the basis of evidence of the prosecution and other circumstances. Both the Courts below were under obligation to consider the aforesaid fact, specially the fact that when the complainant was not in possession of the field and accused persons have legally/illegally prevented them for cultivation and harvesting, then there was no propriety for entering in the field, which was in occupation of the accused persons, may be illegally but not considering the aforesaid fact they have committed illegality. 8. Consequently, the revision deserves to be allowed and is hereby allowed. 8. Consequently, the revision deserves to be allowed and is hereby allowed. Conviction and sentence of applicant Sita Ram under Section 447/34 and 325/34 are hereby set aside. He be set at liberty at once. Fine, if paid, shall be refunded to him. Revision Allowed.