Ram Kumar vs State of Haryana

Jawahar Lal Gupta, J. (Oral)

We have two appeal viz. Criminal Appeal No. 365DB of 1993 (Ram Kumar and others v. State of Haryana) and Criminal Appeal No. 103DBA of 1994 (Om Parkash S/o Mauji Ram v. Ram Chander and others. A few facts relevant for the decision of these two cases may be briefly noticed.

Prithi Singh and Chandgi Ram were brothers. Prithi Singh had a son by the name of Lattu. He in turn had four sons including Mahabir (PW5), Ram Chander (PW6) and Baljit (PW7). They are the complaint party in Criminal Appeal No. 365DB of 1993 and the accused respondents in the second case. On the other hand Chandgi Ram has two sons Mauji Ram and Paras Ram. Mauji Ram has three sons viz. Ram Kumar, Om Parkash and Bale Ram. Bale Ram has a son by the name of Bijender. The three sons of Mauji Ram (Ram Kumar etc.) are the appellants in Criminal Appeal No. 365DB of 1993. Bijender son of Bale Ram was also involved in the case. He was, however, tried by the Juvenile Court and was acquitted. Paras Ram has a son by the name of Ram Phal. Detailed reference to Ram Phal shall be made at the appropriate stage.

The dispute has its genesis in to 15 kanals and 4 marlas of land bearing Killa Nos. 1 and 2 in Rectangle No. 134. This land is situated in village Sundana, Tehsil and District Rohtak.

It is alleged that on July 16, 1989, Mahabir (PW5), Baljit (PW7) and Ram Chander (PW6) alongwith their father Lattu were present in their field when the three appellants viz. Ram Kumar, Om Parkash and Bale Ram alongwith Bijender attempted to forcibly cultivate the land in dispute. Lattu and his sons objected. The accusedappellants assaulted Lattu etc. and caused injuries. Mahabir and Baljit who were armed with lathis tried to defend themselves and caused injuries to the three appellants. Ultimately, the four injured persons viz. Lattu and his three sons were taken to the Community Health Centre, Kalanaur. The Doctor Incharge informed the police. A.S.I. Partap Singh alongwith other police officials went to the Health Centre. He recorded the statement of the complainantMahabir. This statements is Ex.PM. On the basis of this statement, Daily Diary Report No. 19 was recorded at Police Station Kalanaur. On July 17, 1989, Lattu who had been referred to the Medical College and Hospital, Rohtak, died. Thereupon, F.I.R. Ex.PM was recorded at 10.30 p.m. by A.S.I. Partap Singh.

S.I. Raj Kumar (PW8) had reached the Hospital at Rohtak. He conducted the inquest proceedings, requested the Medical Officer and arranged for the postmortem examination of the deceased. The clothes of the deceased were for chemical examination. The police after investigation concluded that the three appellants Ram Kumar, Om Parkash and Bale Ram alongwith Bijender were guilty. The challan was presented to the court. After recording the evidence, the trial Court found that Lattu and his sons were in possession of the land. The prosecution had successfully proved that the accused were the aggressors. Thus, they were convicted of the offence punishable under Section 302 I.P.C. Om Parkesh was convicted under Section 302 I.P.C. read with Section 34. All the three were also convicted for the offences punishable under Sections 325 and 323 read with Section 34 I.P.C. Sentence of imprisonment and fine in accordance with law was awarded to all of them.

The order of conviction has been challenged by the persons viz. Ram Kumar etc. through Criminal Appeal No. 365DB of 1993.

Om Parkash had filed a complaint alleging that Ram Chander, Baljit, Debi Ram, Mahabir, sons of Lattu, Ajit and Satish sons of Ram Chander were guilty of offences punishable under Sections 323, 325, 447, read with Sections 148 and 149 I.P.C. So far as Satish is concerned, his case was sent to the Juvenile Court. Against the remaining five, the complaint was tried by the Court. Vide judgment dated October 11, 1993, it was held that the complainant was the aggressor. The accused were within their rights of private defence of persons and property when they inflicted injuries on the complainant party. They were, thus, acquitted. Aggrieved by the judgment, the complainant sought leave to appeal. The prayer having been allowed, we have Criminal Appeal No. 103DBA of 1994.

Counsel for the parties have been heard.

The short question that arises for consideration in these cases is Which party was in actual physical possession of the land in dispute ? An answer to this question would help in determining as to who was the aggressor.

Mr. T.P.S. Mann, counsel for the appellants has contended that even though the land initially belonged to Lattu (since deceased), it has come in the possession of the appellants through the process of law. Since they were in actual physical possession, they were entitled to defend their persons and property when they were attacked by Lattu and his sons. He has contended that in fact, the deceased and his sons had attacked the appellants and given them a reasonable apprehension of a threat to their life. The appellants had merely acted in defence of their persons and property. Is it so ?

Firstly, the factual position regarding the land may be noticed. It is clearly established on the record that Smt. Lado had filed an application before Assistant Collector, Ist Grade, Rohtak for the recovery of Rs. 3217.30 against Lattu and others. On December 9, 1980, the claim as made by Smt. Lado was accepted by the authority. A decree was passed in her favour. She had initiated execution proceedings. The land comprised in Killa Nos. 1 and 2 in Rectangle No. 134 which was in the ownership of Lattu was attached. On December 15, 1981, the land was auctioned. Ram Phal son of Paras Ram, a cousin of the present appellants, was the highest bidder for an amount of Rs. 6100/. His bid was accepted. On May 10, 1982, the sale was confirmed. On April 28, 1983, the sale certificate Ex.DP was issued in favour of Ram Phal. Thereafter, a warrant of possession was issued by the S.D.O. (C) Rohtak. On May 8, 1983, actual physical possession of 5 kanals 8 marlas in Killa No. 1 and 1 kanal in Killa No. 2 was given to Ram Phal. The Roznamcha report recorded in this behalf is Ex.DA on the record. Symbolic possession in respect of the remaining land was also given. Still further, compensation for the standing crop was assessed at Rs. 165/. On October 30, 1987, the actual physical possession of land measuring 1 kanal 16 marlas in Kill No. 1 and 7 kanals from Kill No. 2 was given to Ramphal. Ex.DB is the report. Not only this. On December 30, 1988, mutation No. 2921 was sanctioned in favour of Ram Phal. It is Ex.DD on the file. Thus, the documentary evidence on record indicates that the land in dispute was the subject matter of execution proceedings and that its possession was delivered to the auction purchaserRam Phal. By October 30, 1987, actual physical possession of the entire land was delivered to him. On December 30, 1988, the name of Ram Phal was recorded as the owner of the land.

On August 26, 1988, the three appellantsRam Kumar etc. had filed civil suits for a declaration that they are owners of land comprised in Killa Nos. 1 and 2 in Rectangle No. 134. This claim was made against Ram Phal the auction purchaser. The defendantRam Phal appeared and admitted the claim. On September 21, 1988, the court recorded the judgment and decreed the suit. The decree and judgment are on record as Exs.DQ and DR respectively. Thereafter, on December 30, 1998 itself, another mutation was entered viz. Mutation No. 2922 in favour of the appellants. This mutation is Ex.DC on the record.

By an application for additional evidence, the appellants have also sought to bring on record the fact that in August, 1989, the complainant party viz. Ram Chander and others had filed a suit for a declaration that they were owners in possession of the land in dispute. They had also sought permanent injunction. However, vide judgment dated March 4, 1994, the suit was dismissed by the trial Court. It was found that the present appellants were owners in possession. Undaunted, they had filed an appeal which was dismissed. The second appeals viz. R.S.A. Nos. 2142 and 2143 of 1994 filed by the complainant party were also dismissed. Applications (Crl. Misc. Nos. 4619 of 1994 and 16115 of 1995) for additional evidence were allowed by a Division Bench of this court on October 8, 1996. Thus, even the decree of the civil court is a part of the record which clearly establishes that the appellants were the owners in possession and that the complainant party had no right in the property at the relevant time.

In view of the overwhelming documentary evidence on the record, it appears to be clearly established that the appellants were owners in possession. Resultantly, the finding recorded by the trial Court that the complainant party was in possession of the land cannot be sustained.

Still the question that survives is Was the possession of the appellants threatened ? Did they have any reason to apprehend a danger to their person and property so as to entitle them to cause injuries to the aforesaid party ?

The medical evidence on record shows that Ram Kumar, Om Parkash and Bale Ram had suffered a total of 20 injuries. Ram Kumar alone had 11 injuries out of which 5 were on the head. Even Om Parkash and Bale Ram had suffered 2 and 3 injuries respectively on the head. Thus, out of a total of 20 injuries, 10 were inflicted on the head of the three appellants. This factual position is borne out from the testimony of PW2 Dr. Narender Kumar who had conducted the medicolegal examination of the injured persons. In this situation, it can be reasonably inferred that the three appellants had a good cause to apprehend a danger to their person. That being so, the story as sought to be made by the complainant party that in fact, the appellants were the aggressors and that they had caused injuries in selfdefence cannot be accepted. On the contrary, it appears to be clearly established that the appellants were the owners in possession. Their rights in the property and the safety of the person were threatened. They had acted in selfdefence. They had caused injuries to Lattu and his sons in order to defend themselves. Since they had received as many as 10 injuries on a vital part of the body, it cannot be said that they had exceeded the right of selfdefence.

It has been pointed out by Mr. Amol Rattan, learned counsel for the State that the complainant party had as many as 21 injuries. In case of Lattu, 7 injuries had been caused out of which the one on the head was not only grievous but had also proved fatal. Still further, Mahabir (PW5) had a fracture of the 5th metacarpal bone of the left hand. Relying upon the report of Dr. S. Narang (PW1), who had conducted the Xray examination of Lattu, it has been pointed out that there was a fracture of the front to parietal region. Similarly, reference has also been made to the statement of Dr. Ishwar Singh (PW9) to point out that during postmortem, 6 injuries were found on the person of the deceasedLattu. Counsel has also referred to the statements of Dr. S.C. Sharma (PW3) to point out that according to the Xray examination conducted on July 26, 1989 and the report Ex.PK, there was a fracture of the 5th metacarpal bone of the left hand of Mahabir (PW5).

It is undoubtedly so. It is correct that even Ram Chander (PW6) had suffered six injuries and Baljit (PW7) had five injuries. Yet, it is not difficult to imagine the actual occurrence. It appears that Lattu and his sons had gone to the field to take possession. They caused injuries to the appellants who did not suffer silently but reacted with equal force. As a result, both suffered almost equal number of injuries in what can be easily described as an effort to defend the possession. In the ultimate analysis, the injury on the person of Lattu was inevitably fatal. But being the aggressors, they have to blame themselves and not the appellants.

Counsel for the State has referred to the oral testimony of Mahabir (PW5), Ram Chander (PW6) and Baljit (PW7) to contend that the complainant party was in actual physical possession. He has also referred to the evidence of Nehri Girdawaris Exs. PFF and PFF to contend that the complainant party was in possession.

We have examined the oral testimony. Two things stand out. Firstly, the sequence of events as noticed above indicates that proceedings had been initiated against Lattu some time prior to December 9, 1980. A suit for recovery had been filed. These proceedings had culminated in a decree against him. In execution of the decree, the actual physical possession had been taken away from him on October 30, 1987. In view of this factual position borne out from the documentary evidence, the oral testimony of the three interested persons cannot be believed. Still further, the matter has not ended with the year 1987. The parties had a second round of litigation before the civil Court. The proceedings were initiated by the complainants themselves when Ram Chander etc. had filed a civil suit for a declaration that they were owners in possession. They had also claimed the relief of injunction. This claim was negatived by the Court. The civil court had found that the present appellants were the owners in possession. This finding was affirmed upto this court. It has become final between the parties. A finding of fact, regarding actual physical possession of the land in dispute has been recorded. The oral testimony produced during these proceedings has also been considered. This court cannot now proceed to review the findings recorded by the civil court. Thus, the contention based on oral evidence that the complainants were in possession, cannot be sustained.

As for the Nehri Girdawaris, copies of which have been produced on record as Exhibits PFF and PGG, it may only be observed that the sequence of events on record indicates that despite having been deprived of the possession in the year 1987, Ram Chander etc. were preparing ground for establishing their title and rights in the property. With that end in view, they had presumably deposited some money so as to create evidence of actual possession. This fact is corroborated by their actually filing a suit in August, 1989. Otherwise, there appears to be no basis for their paying any revenue when they had been actually deprived of the possession of a part of the land on May 8, 1983 and thereafter of the whole land in October, 1987.

No other point has been raised.

In view of the above, the finding recorded by the trial Court in its judgment out of which Criminal Appeal No. 365DB of 1993 arises cannot be sustained. Resultantly, the appeal is accepted. The conviction and sentence of the appellantsRam Kumar, Om Parkash and Bale Ram are set aside. They are acquitted and are ordered to be released forthwith.

This brings us to the consideration of the order by which the complaint filed by Om Parkash (PW7 in Crl. Appeal No. 103DBA of 1994) has been rejected. It has been contended by Mr. Mann, counsel for the appellant that the finding of the trial Court that the appellant was not owner in possession or that he was the aggressor cannot be sustained. Counsel has referred to the oral and documentary evidence produced on the file to show that the injuries had been caused by the respondents and that the appellant had merely exercised his right of defence.

We have examined the evidence at length. We find that the appellant was owner in possession alongwith his brothers. The respondentaccused were the aggressors. They had caused injuries. In fact 50% of the injuries were on the vital part of the body. Still further, the testimony of Dr. R.K. Airon who appeared as PW3 in the complainant case, shows that he had conducted the radiological examination on the person of Ram Kumar (PW8) and found a fracture of the 9th and 11th ribs of the left side. The report Ex.PD was duly proved on the record. The respondentaccused are, thus, guilty of causing grievous hurt and simple injuries to the complainant party. They have to be inevitably convicted of offences punishable under Sections 323 and 325 read with Sections 148 and 149, 447 I.P.C. We order accordingly.

We have heard counsel on the question of sentence. It has been pointed out that they are first offenders. The occurrence had taken place as far back as in July, 1989. More than 10 years have elapsed. They should not be sent to jail at this stage. The counsel prays that benefit of probation may be given. Counsel for the complainant does not oppose this prayer.

We are satisfied that in the circumstances of the case, it would be proper and in the interest of justice to give the benefit of probation to the accused party. We order accordingly. The respondents shall furnish a bond for good behaviour for a period of one year within one month to the satisfaction of the Chief Judicial Magistrate, Rohtak.

Both the appeals are, accordingly, disposed of.

Appeals dismissed.