Supreme Court of India
RAM PAT & ORS.versusSTATE OF HARYANA
- Citation
- 2009 INSC 791
- Decided
- 12 May 2009
- Disposal
- Dismissed
- Bench
- S B SINHA
Holding
The appellants were not in settled possession of the land and therefore could not claim the right of private defence; their conviction under the IPC stands.
Summary
The appellants purchased an undivided share of a joint family land but did not acquire any specific portion or possession. On the day of the incident the co‑owner Harda Ram and his son were ploughing the field when the appellants, armed with lathis and jallies, entered the land and inflicted fatal injuries on Harda Ram and injuries on several others. The trial court acquitted the appellants, but the High Court convicted them under Sections 302, 149, 447, 148 and 506 IPC, holding that they were in settled possession and could claim private defence. The Supreme Court held that purchase of an undivided share confers only a right to sue for partition, not possession, and that the appellants were not in settled possession; consequently they could not invoke private defence and were the aggressors. The Court also found the evidence of possession, the injuries to the accused and the FIR delay insufficient to overturn the prosecution's case. The appeal was dismissed, leaving the conviction intact.
Issues considered
- The legal effect of purchasing an undivided share of joint family property on the right to possession.
- Whether the appellants were in "settled possession" of the land sufficient to claim private defence.
- Whether the right of private defence under Sections 99‑102 IPC can be invoked by the accused in the facts of the case.
- Whether the delay in lodging the FIR and the unexplained simple injuries to the accused affect the prosecution's case.
Legislation cited
- Code of Criminal Procedure, 1973s. 107, s. 151
- Indian Evidence Act, 1872s. 105, s. 110, s. 17, s. 21
- Indian Penal Code, 1860s. 100, s. 101, s. 102, s. 148, s. 149, s. 302, s. 307, s. 447, s. 506, s. 99
Subjects
private defencesettled possessionundivided sharejoint family propertymurder convictionland disputeself‑defenceIndian Penal CodeevidenceFIR delay
Judgment
(2009] 8 S.C.R. 1115
RAM PAT &·ORS. A
v.
STATE OF HARYANA
(Criminal Appeal No. 581 of 2007)
MAY 12, 2009
B
[S.B. SINHA AND DR. MUKUNDAKAM SHARMA, JJ.]
Penal Code, 1860 - ss.302, 3021149 and 44711481506
- Purchase of undivided share in properly by appellants - Co-
owner's son ploughing the said land - Appellants anned with C
weapons entering the suit land and causing fatal injuries to
co-owner and injuries to others - Appellants pleading a
contrary case - Acquittal by trial court, however, conviction by
High Court - Interference with - Held: Not called for - Right
of private defence can be exercised provided any occasion D
. arises therefor - Appellants were not in settled possession of
the property, thus, had no right of private defence to defend
the possession of the property- They were aggressors being
fully anned - Occurrence of the incident stands admitted -
Evidence of co-owner's son trustworthy - Non explanation of E
simple injuries sustained by two accused as also delay in
lodging FIR not fatal - More so, complainants were not anned,
except one who had a small twig.
According to the prosecution case, DR, RP along
with others purchased undivided share of the owners of F
the property. HR was the co-owner of the land. After
execution of sale deeds, accused tried to enter into the
suit land and plough it. On the fateful day when R-son of
HR was ploughing his agricultural land with the tractor
and HR was also present, accused-SR, DR, B, RR, RP
and BL armed with lathis and jallies caused fatal injuries
· to HR. LS, DK and M who came at the scence of
· occurrence were also injured. Accused SR and RR were
also injured. Trial court acquitted the accused. In appeal,
1115 H
1116 SUPREME COURT REPORTS [2009] 8 S.C.R.
A High Court convicted accused RP u/s 302 and remaining
accused u/s 302/149 and also u/s. 447/148/506 IPC and
sentenced them accordingly. Hence the present appeal.
Dismissing the appeal, the Court
B HELD: 1.1. The accused admittedly did not purchase
any specific portion of the property. They purchased
undivided share. By reason thereof, in law, they did not
acquire any right to obtain possession of the lands. HR-
deceased and his family being the co-sharers did not give
c any consent for handing over their possession in their
favour. Therefore, the accused persons being purchasers
of an undivided share merely acquired a right to sue for
partition. Two sale deeds were executed in favour of
accused. Trial judge was wholly incorrect in holding that
D having regard to the stipulations contained in the deeds,
possession of the vended properties had been handed
over; the vendees would be deemed to be in possession.
That is not the law. Handing over of possession is a
physical act. Nothing has been brought on record to
E establish that in fact physical possession had been
handed over by all the co-sharers. [Para 12) [1134-A-C,
G-H; 1135-A-B]
M. V.S. Manikaya/a Rao vs. M. Narasimhaswami and
Ors. AIR 1966 SC 470; Hardeo Rai vs. Sakuntala Devi and
F Ors. 2008 (7) SCC 46; Peethani Suryanarayana and Anr. vs.
Repaka Venkata Ramana Kishore and Ors. 2009 (2) SCALE
461, referred to.
1.2. PW 8-R was not confronted with the purported
c;3 admission by him. He could have explained the same. In
any event, admission on his part was not such which was ~
admissible against him proprio vigore. In a case of this
nature, the statement made in the mentioned documents
or before the DSP cannot be said to be an admission that
H they had been totally dispossessed which would be
RAM PAT & ORS. v. STATE OF HARYANA 1117
- + admissible against PW 8 proprio vigore. Another
purported admission by PW 8 disclosed that the
subordinate judge had confirmed the order of injunction
whereagainst appeal was preferred by DR and RP.
Parties admittedly had also been litigating before the
A
Revenue Authorities in regard to their respective claims B
in the matter of getting their respective names mutated
in the revenue records. The entries in the revenue
records stood in the name of the deceased and his family.
[Para 12] [1136-E-F; 1137-C-F]
Bharat Singh and Anr. vs. Bhagirathi (1966) 1 SCR 606;
c
(Thakur) Nirman Singh and Ors. vs. Thakur Lal Rudra Partab
..,... . Narain Singh and Ors. 1926 Privy Council 100, referred to .
1.3. It is proceeded on the basis that the entries made
in the revenue records were not decisive for proving D
actual possession. Appellants were purchasers. They did
not obtain any right to possess the land having not
purchased any definite portion of the land; they merely
purchased undivided share. Thus, even their vendor
could not have put them in possession. Even otherwise, E
it has not been denied or disputed that the deceased and
his family were in possession prior to 28.6.1993. If that be
- so, having regard to the provisions contained ins. 110
of the Evidence Act, 1872, a presumption would arise that
the deceased and the members of his famHy continued
to be in possession. [Paras 14] [1138-C-F]
F
1.4. The four attributes of settled possession referred
to in Puran Singh's case eught to be read conjunctively
and not disjunctively. The question must be considered
-- keeping in view the facts and circumstances of each G
case. The parties were on litigating terms. The first
informant and his family were attending the court in
connection with litigations concerning the very self same
land. The accused persons came stealthily with a tractor
and cultivated it. The High Court for good reasons opined H
1118 SUPREME COURT REPORTS [2009] 8 S.C.R.
A that they had not sown any Bajra which was the specific
defence taken by the accused. RA, HP-PW7, who were
independent witnesses, categorically stated that they
could not say as to whether any crop was sown. He,
however, opined that had the crop been sown 16 days
~
-
/
8 prior to the occurrence, then the same would have grown
to the extent of 6 inch to 1 feet. Such a solitary overt act
which had not been repeated on days subsequent to
14.6.1993 in respect whereof even some litigations started
and, thus, the same cannot give rise to an inference that
c the accused were in settled possession of the land and
other attributes in regard thereto have been satisfied so
--
as to enable them to claim a right of private defence in
respect of the property. [Para 14 and 15] [1141-D-H; 1142-
A]
D 1.5. The trespassers not only must be put in actual
physical possession of the property but also must
continue to be in possession. Acquiescence to act of
purported possession by the accused on the part of the
complainant would arise only if an attempt is made to take
E possession in their presence. On the date of occurrence,
PW 8 started cultivating. It has been amply proved that
the scuffle lasted for only two minutes to two and half
minutes. PW8 was not armed with any weapon, so was
not HR. It was LS alone who had a small twig (Kamari) in
F his hand. According to him, the same is used to drive
camels. Kamari was said to be used by LS in his sole
-
defence as a result whereof SR and RR were injured.
[Para 15] [1142-A-D]
Puran Singh and Ors. vs. The State of Punjab (1975) 4
-
G
SCC 518 and Rame Gowda (Dead) by L.Rs. vs. M.
Varadappa Naidu (Dead) by L.Rs. and Anr. (2004) 1 SCC ~
769, relied on.
Munshi Ram vs. Delhi Administration (1968) 2 SCR 455,
H referred to.
RAM PAT & ORS. v. STATE OF HARYANA 1119 /
~ 1.6. The injuries on the person of accused-SR and A
--" RR were simple in nature. It is true that the fact that two
of the accused persons had suffered injuries had not
been disclosed in the FIR or in their statement before the
Investigating Officer, but the same was not necessary as
they got themselves medically examined by the doctor B
almost at the same time when the other prosecution
witnesses got themselves examined. By that time they
had already been arrested. It was the police authorities
who had submitted an application along with the injuries
chart. They had been brought by constable SS. Thus, the c
fact that two of them had suffered injuries in the same
- incident was known to the 10. Whereas grievous injuries
suffered by the accused are required to be explained by
the prosecution, simple injuries need not necessarily be.
Non-explanation of simple injuries of the nature suffered
D
by the accused would not be fatal. [Para 15] [1142-D-H]
Hari vs. State of Maharashtra 2009 (4) SCALE 103,
referred to.
1.7. The nature of injuries suffered by the deceased E
and the prosecution witnesses have been noticed. They
- had been caused by lathis and/or jallies. Therefore,
-- accused were fully armed with when they came to the
place of occurrence. They not only assaulted the
deceased indiscriminately, but the prosecution witnesses
were also not spared. [Para 16] (1143-F-G]
F
1.8. From the question put to LS-witness, it is evident
that two questions were clubbed together which should
not have been permitted by the trial judge. The fate of the
said statements must, therefore, be considered having G
#
,
regard to the nature of the suggestion put to him. It is also
worthwhile to notice that P.W.8 also accepted that LS had
caused injuries to SR and RR in his self defence. LS's
\ presence at the spot, therefore, cannot be denied or
H
1120 SUPREME COURT REPORTS [2009) 8 S.C.R.
A disputed. The fact that some incident had taken place also i
could not be denied or disputed. [Para 16] (1144-C-E] ,,
'
1.9. FIR might have been recorded at a later stage.
But the information about the occurrence must have
betm given by PW 8 to the office in-charge of Ateli Police
B
Station prior thereto. Even a copy of the FIR was received
by th~ Magistrate at about 10.30 p.m. on the same day.
The Investigating Officers were not cross examined on
that point. In any event, it is wholly unlikely that the FIR
was anti-timed and anti-dated. Even assuming that the
c same was anti-timed or anti-dated, the fact that an incident
had oc:curred was not disputed. At least two of the
accused persons accepted their presence. The defence
story is that two accused persons had sustained injuries
.... /
at the hands of LS-PW 12. If occurrence of the incident
D stands admitted, even if some delay has been caused in
writing of the FIR, the same would not render the entire
prosecution case suspicious. [Para 17] (1145-8-F]
1.10. Appellants cannot be said to have been in
E 'settled possession' of the land in question. Furthermore,
they came wholly armed, whereas except LS who was
having a small twig (Kamari), deceased party were not
F
armed with any weapon. It was not a dangerous weapon.
No grievous injuries could have been caused by use
thereof and in fact no grievous injuries have been
-
suffered by the accused SR and RR. Appellants did not
raise any plea of self defence. According to them, they
were not present at the spot at all. It was submitted that
accused no.1 and accused no. 6 raised the plea of self
defence. Trial judge although accepted the said plea but
G
the same was accepted not with particular reference to ~
....
the said accused. All the accused persons did not raise
the defence of exercise of right to private defence. In
regard to claim of right of self defence, the matter may
have to be considered from somewhat a different angle.
H
RAM PAT & ORS. v. STATE OF HARYANA 1121
Accused nos. 6, 7 and 8 were attributed with assault of A
I-
LS and two ladies. [Para 18) (1145-F-H; 1146-A-C]
'-
1.11. Any overt act on their part, thus, having regard
to the fact that the HR had already been assaulted, there
was no evidence against RR as also accused nos. 7 and B
8 that they had participated in assaulting the deceased.
The right of private defence can be exercised provided
any occasion arises therefor. The trial judge wrongly held
so, on the premise that the appellants were in settled
possession of the property. If they were-not, they had no
right of private defence to defend the possession of the
c
property. Thus, they were the aggressors being fully
armed. Right of private defence need not be specifically
raised. [Para 19) (1146-C-F]
1.12. PW 12's presence stands admitted. P.W.8's D
presence has been doubted by the Sessions Judge only
on the ground that he got his father admitted at 2.30 p.m.
The presence of PW 8 could not have been doubted on
such slender evidence. He was driving the tractor.
Accused persons came prepared to assault the E
deceased. By the time the first informant could come and
intervene, the entire incident must have occurred as it is
• stated that the same took place only for two to two and
-- half minutes. No suggestion had been given to any of the
prosecution witnesses by the defence that no tractor was
found at the place or it was the deceased who himself
F
was driving the tractor. PW 8 categorically stated that he
left the tractor at that place. His evidence, taking a holistic
view of the matter, appears to be trustworthy. He vividly
described the entire incident. He was cross examined on G
all material points. He also explained that by the time he
I reached all the accused had started running with their
weapons towards their respective houses, and as such
he did not suffer any injury. [Para 20] [1150-C-H]
H
1122 SUPREME COURT REPORTS [2009] 8 S.C.R.
A Bishna Alias Bhiswadeb Mahato and Ors. vs. State of
WB. (2005) 12 SCC 657, Relied on. i
,,_
Surendra and Anr. v. State of Maharashtra (2006) 11
SCC 434; Satya Narain Yadav v. Gajanand and Anr. 2008
(10) SCALE 728; Ravishwar Bishna Alias Bhiswadeb Mahato
B
and Ors. vs. State of Manjhi and Ors. vs. State of Jharkhand
2008 (16) SCALE 45 and Bhanwar Singh and Ors. vs. State
of M.P. 2008 (7) SCALE 633, referred to.
1.13. There cannot be any doubt or dispute
c whatsoever that if two views are possible, the appellate
Court should not interfere with a. judgment of acquittal,
but this has many exceptions. [Para 21) [1150-G-H; 1151-
A]
D State of Punjab vs. Gurnam Kaur and Ors. 2009 (4)
SCALE 343; U.O./. vs. Bal Mukund and Ors. 2009 (4) SCALE
606, referred to.
Casw Law Reference:
E AIR 1966 SC 470 Referred to. Para 12
2008 (7) sec 46 Referred to. Para 12
2009 (2) SCALE 461 Referred to. Para 12
(1966) 1 SCR 606 Referred to. Para 12 ~
F
1926 Privy Council 100 Referred to. Para 13
(1975) 4 sec 518 Relied on. Para 14
(1968) 2 SCR 455 Referred to. Para 14
G (2004) 1 sec 769 Relied on. Para 14
2009 (4) SCALE 103 Referred to. Para 15 +
(2005) 12 sec 657 Relied on. Para 19
H
RAM PAT & ORS. v. STATE OF HARYANA 1123
(2006) 11 sec 434 Referred to. Para 19 A
r
2008 (10) SCALE 728 Referred to. Para 19
2008 (16) SCALE 45 Referred to. Para 19
2008 (7) SCALE 633 Referred to. Para 19
B
2009 (4) SCALE 343 Referred to. Para 21
2009 (4) SCALE 606 Referred to. Para 21
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 581 of 2007. c
From the Judgment & Order dated 14.02.2007 of the High
/ Court of Punjab & Haryana at Chandigarh in Criminal Appeal
No. 298-DBA/1997.
D
Sushil Kumar, R. K. Kapoor and Harish Chandra Pant (Anis
Ahmed Khan) for the Appellant.
T.V. George for the Respondent.
The Judgment of the Court was delivered by E
S.B. SINHA, J. 1. Appellants, four in number, are before
us aggrieved by and dissatisfied with the judgment and order
dated 14.2.2007 passed by a Division Bench of the High Court
..... of Punjab & Haryana at Chandigarh in Criminal Appeal No.298-
DBA of 1997, in terms whereof a judgment of acquittal recorded F
by learned Sessions Judge, Narnaul in case No.27 of 1993
was set aside.
2. We may, at the outset, notice that eight persons were
arrayed as accused in the aforementioned case. The High G
-· ~
Court, however, did not grant special leave in respect of
accused Nos.6 to 8. Accused No.1 died during the pendency
of the trial. Accused Nos.2 to 5 only are, therefore, before us.
3. The prosecution case is as under:
H
1124 SUPREME COURT REPORTS [2009] 8 S.C.R.
A Daya Ram and Ram Pat, along with Rajinder, Surinder
and Mukesh alias Manoj had purchased 1/36th share of the ~
right of the owners in the land measuring 264 kanals, 12 marlas ..-
comprised of Khewat No.10, Khatauni No.69 mustkil and Ki Ila
No.24/27 and 1/48th share of 37 kanals 8 marlas of land by
B reason of a deed of sale dated 7.5.1993. They are said to have
purchased 1/18th undivided share in the land measuring 264
kanals 12 marlas and 1/24th share of land measuring 2 kanals
5 marlas totaling 14 kanals 14 marlas of land by reason of a
deed of sale dated 24.5.1993. Allegedly, they sowed some
c Bajra crop therein.
Occurrence is said to have taken place on the land
comprised of Khasra No.24/8/1 situated at village Nawadi.
Harda Ram (the deceased) claimed himself to be the co-owner <
and in possession of the said land for a long time. He claimed
D right thereon on the basis of khasra girdawaries. Appellants,
as noticed hereinbefore, claimed to be in possession thereover
in terms of the aforementioned deed of sale dated 7.5.1993
and 24.5.1993. According to the prosecution, however, the
deceased was in possession of the land and after the execution
E of the said deeds of sale, it was the accused persons who had
tried to enter into the suit land and plough it.
The prosecution case, as disclosed in the FIR lodged by
P.W.8 - Rajbir" was that he was ploughing his agricultural land
~
F with his tractor on or about 14.7.1993. His father Harda Ram
("the deceased" for short) was also standing in the field. Sheo
Ram, Daya Ram, Bajrang and Raja Ram armed with lathies
and Ram Pat and Balwant armed with Jellies came at the spot.
The entire occurrence as would appear from the depositions
of the prosecution witnesses before the court lasted for hardly
G
two to two and half minutes.
t .,,
Ram Pat is said to have given a jelli blow on the head of
the deceased; Sheo Ram inflicted a lathi blow above his eyes;
Balwant Singh gave jelli blow on the back of his neck (Gudhi);
H
RAM PAT & ORS. v. STATE OF HARYANA 1125
[S.B. SINHA, J.]
Daya Ram inflicted a lathi blow on his back and Bajrang also A
r inflicted a lathi blow on his person.
In the FIR, Rajbir further stated that in the meanwhile his
uncle Lal Singh, his aunt Dhankauri wife of Lal Singh and his
sister Mamli, who were fetching water from a water tap situated
B
nearby, had arrived at the scene of occurrence. Basanti and
Santosh armed with lath is came there. Whereas Basanti dealt
a lathi blow on the head of Mamli, Santosh gave a lathi blow
on the person of Dhankauri. P.W. 8 further stated that Raja
Ram also inflicted a lathi blow on the person of Lal Singh. The
occurrence is said to have been witnessed by Ami Lal son of c
Sohan and Ram Avtar son of Bhuru Ram, who intervened and
rescued them from the clutches of the accused and thereafter
the accused persons left the spot with their weapons. P.W. 8
further alleged that after getting the injured admitted in the
Primary Health Centre, Ateli, he proceeded towards the Police D
Station for lodging the FIR. His statement was recorded at 1.50
p.m.
The deceased was, however, taken to Civil Hospital,
Narnaul. Head Constable Kailash Chand (P.W. 13) came to E
learn thereabout on reaching Primary Health Centre, Ateli. He
recorded the statement of Dhankauri, Mamli and Lal Singh. He
thereafter came to Civil Hospital, Narnaul with a view to
examine the deceased but it was found that he was not in a
position to mak.e a statement. The doctor had also reported that F
the injuries suffered by the deceased were dangerous to life
and as such the offence was converted to one under Section
307 IPC.
4. Before the learned Sessions Judge, 14 witnesses were
examined on behalf of the prosecution. Some of the witnesses G.
although named in the charge-sheet were not examined by the
public prosecutor on the premise that it was not necessary to
examine them. They are Dr. Vijay Singh Yadav, Dr. Vinay
Chaudhary, Dr. O.P. Saroha, Sheo Ram, Babu Lal, Raghbir,
Mamli, Dhankauri and Ram Avtar. Lal Singh and Suraj Bhan H
1126 SUPREME COURT REPORTS [2009] 8 S.C.R.
A were also not examined on the ground of having been won over
by the accused. i
5. The prosecution in support of its case mainly relied upon
the evidence of Rajbir (P.W.8), Lal Singh (P.W.12). We would
refer to their evidence a little later.
B
6. We may, however, notice that in the aforementioned
incidence, Mamli, Dhankauri, wife of Lal Singh, as also Lal
Singh were injured. They were examined by Dr. S.C. Goel
(P.W.5). Mamli was examined immediately after the said
C occurrence and two injuries were found on her person, namfiiy:
"1. There was a lacerated fresh bleeding would present
on parietal prominence, size 5.5 ems x bone deep.
X-ray was advised. There was swelling of 2 ems
diameter around it.
D
2. On the back of the chest, there was a reddish
contusion of 11 ems x 1/1/2 ems. Tenderness was
present. X-ray was advised."
E Dhankauri, wife of Lal Singh was found to have suffered
four injuries. He was examined at about 1.40 p.m. The injuries
suffered by her are as under:
"1. Two ems. long lacerated wound on the left fore-arm
of the size, in the bangles area, Fresh bleeding was
F present.
2. On the top of the scalp a lacerated wound 4 ems x
1 cm, transverse, skin deep with swelling of 1 cm
in diameter around it was present. It was freshly
G bleeding and it was advised x-ray.
3. There was a skin colour swelling on the left side of
the fore-head size 4 x 3 ems. Tender was hard and
there was 1 cm long reddish abrasion on it was
present. X-ray was advised.
H
RAM PAT & ORS. v. STATE OF HARYANA 1127
[S.B. SINHA, J.]
4. The left shoulder blade was swollen, tender little A
reddish on the back on the upper part of the chest.
The movement of the shoulder was painful. Advised
X-ray.
Lal Singh was examined at about 1.55 p.m. He is said to
B
have suffered the following injuries:
"1. Below right parietal prominence, there was a
lacerated freshly bleeding wound of 4 x Yz cm bone
-t
deep with swelling of 1 cm. diameter around it. X-
ray was advised. c
2. In front of left parietal prominence, freshly bleeding
lacerated wound of 4 x Yz cm was present. It was
bone deep with the swelling of 1 II 1/2 of diameter
around it. X-ray was advised.
D
3. There was a reddish abrasion of 2 ems on the top .
of right shoulder. Tender. Movement ofshoulder was
painful. It was kept under observation.
4. Two penetrated wounds of Yz cm x Yz cm on the right. E
leg, inner side. Yz ems apart from each other. It was
1 1/1/2 cm. deep. Freshly bleeding. It was kept
.. under observaUon. Margins were lacerated .
The doctor opined that the !njuries suffered by Mamli,
Dhankauri and Lal Singh were inflicted by a blunt weapon and F
were caused within a duration of 24 hours of examination.
Two of the accused, namely, Raja Ram and Sheo Ram
were also found to have suffered injuries. They were also
examined by Dr. S.C. Goel (P.W.5). G
i The injuries suffered by Sheo Ram are as under:
"1. A lacerated wound of 3 ems present on top and '
middle of fore-head, upper end on the scalp Y<i cm
H
1128 SUPREME COURT REPORTS [2009] 8 S.C.R.
A wide. It was bone deep and freshly bleeding was
·present on cleaning and swelling of 1 cm diameter i
around it. X-ray was advised.
2. Reddish abrasion of 15 x 1 ems on right fore-arm,
outside, down to wrist. Tender have black loose clot.
B Fresh bleeding on cleaning was present. Movement
was painful. X-ray was advised.
3. On top and back of right shoulder, multiple reddish
contusions were present, involved shoulder blade
c and back of chest. Painful tender and the movement
was restricted. X-ray was advised.
D
4. Reddish abrasion of 2 x 1 ems. on the back of left
shoulder. Painful and movements were within limits. -
5. Lacerated freshly bleeding wound was present on
the back of left fore-arm. 7 ems. below the elbow
joinU Size 2//1/2 x % cm skin deep.
6. On all over the back chest of the left and right,
E multiple cyiindrical reddish contusions i,,vere present.
X-ray was advised.
7. The patient had complaint of pain all over the body.
The injuries suffered by Raja Ram are as under:
F
"1. Reddish contusion of 5 x 1 ems on the back of right
fore-arm, middle, tender, movements were normal.
2. Reddish contusion of 7 x 1 ems on the top of left
shoulder, tender, movements were painful.
G
3. On the top of right shoulder and deltoid muscle,
reddish contusion 11 x 2 ems. tender, movements
were painful. X-ray was advised.
H 4. On the right shoulder blade, three reddish irregular
RAM PAT & ORS. v. STATE OF HARYANA 1129
[S.B. SINHA, J.]
r contusions in an area of 8 x 8 ems was present. A
5. On the back of right index finger, reddish abrasion
of 1 x Yi ems was present. Fresh bleeding was
present on cleaning. It was painful.
6. The left wrist joint on the back was swollen. Skin B
colour and it was painfuL Defuse was more on the
side of thumb. Movements were painful.
7. On the left parietal prominence, there was reverse
L shape wound of 3 x 1 ems and Yi cm. It was full c
of burnt cloth. On cleaning, fresh bleeding occurred.
Bone deep, tender and swelling of 1 diameter
around it. X-ray was advised.
It is, however, of some significance to notice that according
D
to Dr. Goel, injuries Nos.2 to 6 on the person of Sheo Ram and
injuries Nos. 1 to 6 on the person of Raja Ram could be caused
by a fall on a hard surface.
It may further be placed on record that Sheo Ram and
Raja Ram were not admitted in the Hospital. There was no X- E
ray facility in the Primary Health Centre, Ateli.
.•
It, however, stands admitted that X-ray of the
· aforementioned two accused were not taken subsequently. No
complaint was made; no further medical complication was F
found and no further treatment was found to be necessary.
Harda Ram, the deceased, was examined by Dr. A.K.
Chhakkar (P.W. 10) at about 1.40 p.m. at Civil Hospital,
Narnaull He is found to have suffered the following injuries.
G
~
"1. A reddish contusion 6 ems. x 6 ems. on left side
parietal temporal region. Swelling was present. It
was kept under observation and advised X-ray.
2. A reddish contusion 3 x 3 ems in size on the right
H
1130 SUPREME COURT REPORTS (2009) 8 S.C.R.
·~
A side of temporal parietal region. Swelling was
present. X-ray was advised.
3. A reddish contusion 3 x 1 cm. on the lateral aspect
of left wrist. Swelling was present.
B 4. Bleeding from teeth was present. Referred Dental
surgeon."
"
7. Harda Ram died on the same day. A post-mortem
examination was conducted by a panel of doctors at 10.30 a.m.
c on 15.7.1993. The report shows the presence of following ante-
mortem injuries on his person:
"1. There was swelling of 10 ems. x 3 ems on the left
side of tempo parietal region. There was scalp
haemotoma size 11 ems x 8 ems on the left side
D front parieto temporal region, reddish in colour. On
dissection, there was fracture of left frontal bone and
parietal bone. Extra dural haemotoma and sub-
dural haemotoma, thickness 1 cm was present on
the parieto temporal region.
E
2. There was a reddish black contusion around right
eye. On dissection, there was fracture of right side
frontal bone.
3. Bleeding (haemotoma) was present in the socket
F
of right side, upper medial and incisor teeth.
Surrounding teeth were unhealthy, Dental carries
was present. There were in all 6 teeth in upper jaw
and 7 teeth in the lower jaw. No corresponding injury
over lip was present.
G
~
4. Reddish abraded.contusion 3 x 1 cm. on the
posterior surface of the left arm middle 1/3rd was
present."
H 8. The learned trial judge recorded a judgment of acquittal
RAM PAT & ORS. v. STATE OF HARYANA
[S.B. SINHA, J.]
1131
-
as noticed by the High Court on the following grounds: A
"1. The accused having purchased the land and
received the possession of the land from the
vendors, were in possession of the same since 16
days prior to the occurrence, whereas the
B
complainant party had no right to destroy the Bajra
crop as sown by them on 28.6.1993. Consequently,
when asked complainant party inflicted injuries
upon them, therefore, they in exercise of right of
private defence of the person and property has
been fully protected under the law and inflicted c
injuries to the complainant party.
2. The presence of Rajbir (PW8) at the time of
occurrence is doubtful.
D
3. The accused party also suffered injuries which were
not explained by the prosecution, therefore, they
would be deemed to have suppressed the genesis
of occurrence.
4. The FIR is anti dated and anti timed" E
" 9. The High Court, however, by reason of the impugned
judgment reversed the said judgment of the trial court, holding:
"From the consistent and trustworthy testimony of Rajbir
F
(PW8), Amar Singh (PW9) and Lal Singh (PW12) it is
amply established that all the five accused, armed with
jallies and lathies, while entering into the land of the
complainant challenged Harda Ram (deceased) not to
plough the land and they in furtherance of their common
intention inflicted numerous injuries to him as a result of G
which he died. They not only caused injuries to the
deceased but also to other three persons Mamli,
Dhankauri and Lal Singh. The accused party has also not
denied having caused injuries to them but they have taken
a specific defence that the injuries were caused by Sheo H
1132 SUPREME COURT REPORTS [2009] 8 S.C.R.
A Ram and Raja Ram only that too in their self-defence. But
the factum of with regard to the presence of the present
respondents has been duly taken note of by us and the
plea of right of private defence has been turned down in
the preceding paras. It would not be inappropriate to
B obseNe that the trial Court while acquitting the accused
on the basis of some inadmissible evidence and also
overlooking the facts as discussed in the preceding paras,
fell in error and formed a view which was not practically
reasonable in the facts and circumstances of the case.
Consequently, interference in the impugned judgment has
c become inevitable.
As an upshot of the above discussions, necessary
. conclusion which can be drawn is that the prosecution has
been successful in leading sufficient evidence against the
D accused to prove the fact that they in furtherance of their
common object inflicted injuries to Harda Ram .which were
found sufficient to cause death in the ordinary course of
nature. Since Dr. Dinesh Poddar (PW11) opined that
cause of death was coma, due to compression of brain
E as a result of head injury which is attributed to Ram Pat
accused, therefore, he is convicted under Section 302 IPC
and the remaining accused namely Sheo Ram, Daya
Ram, Balwant and Bajrang are convicted under Section
302/149 IPC. Consequently, they are also convicted under
F Sections 447/148/506 IPC.
Now coming to the sentence, since the minimum
sentence is being awarded against the accused, therefore,
we do not feel the necessity to hear them on quantum of
G
sentence. Consequently, accused - respondent Ram Pat
is sentenced to undergo imprisonment for life and to pay
fine of Rs.500/-. In default of payment of fine to further
...
undergo rigorous imprisonment for one month under
Section 302 IPC. The remaining accused are also
awarded the same sentence under Sections 302/149 IPC,
H
RAM PAT & ORS. v. STATE OF HARYANA 1133
[S.B. SINHA, J.]
- ~
as has been awarded to the accused Ram Pat under
Section 302 IPC.
Since the accused have already been sentenced for
A
graver offence, therefore, we do not feel necessity to
sentence them under Sections 148, 447 and 506 IPC B
separately."
Appellants are, thus, before us.
10. Mr. Sushil Kumar, learned Senior Counsel appearing
on behalf of the appellants would submit c
...... i. Learned trial judge having assigned sufficient and
cogent reasons in support of his findings and its
view being a plausible one, the High Court should
not have interfered therewith.
D
ii. "Settled possession" on the part of the accused
having been found as of fact by the learned trial
judge inter alia on the basis of the admission made
by the first informant himself in Exhibits ON & DQ,
the High Court was not correct in interfering E
therewith .
.,.
... iii. Exercise of right of private defence on the part of
the injured accused persons, namely, Sheo Ram
and Raja Ram having been accepted and the High F
Court itself having not granted special leave to
appeal so far as they are concerned, it must be held
to have committed a manifest error insofar it failed
to extend the said benefit to the appellants also.
_, i
iv. In any event, the prosecution having not explained G
the injuries sustained by two of the accused and the
FIR having been anti-dated and anti-timed, no
interference with the judgment of the trial court was
warranted at the hands of the High Court.
H
1134 SUPREME COURT REPORTS [2009] 8 S.C.R.
A 11. Mr. TV. George, learned counsel appearing on behalf
of the State, on the other hand, would support the impugned
judgment.
12. The accused admittedly did not purchase any specific
8 ponion of the property. They purchased undivided share. By
reason thereof, in law, they did not acquire any right to obtain
possession of the lands. Harda Ram and his family being the
co-sharers did not give any consent for hading over their
possession in their favour. In law, therefore, the accused
C persons being purchasers of an undivided share merely
acquired a right to sue for partition.
In M. V.S. Manikaya/a Rao vs. M. Narasimhaswami & Ors.
[(AIR 1966 SC 470], this Court held:
D "Now, it is well settled that the purchaser of a coparcener's
undivided interest in joint family property is not entitled to
possession of what he has purchased. His only right is to
sue for partition of the property and ask for allotment to him
of that which on partition might be found to fall to the share
of the coparcener whose share he had purchased."
E
{See also Hardeo Rai vs. Sakuntala Devi & Ors. [(2008)
1 sec 46]}
Recently in Peethani Suryanarayana & Anr. vs. Repaka
F Venkata Ramana Kishore & Ors. [2009 (2) SCALE 461], this
Court held:
"It is also not in dispute that the appellants, being
purchasers of undivided share in a joint family property, are
not entitled to possession of the land that they have
G purchased. They have in law merely acquired a right to sue
for partition"
The two deeds of sale were executed in their favour on
7.5.1993 and 24.5.1993. The learned trial judge, in our opinion,
H was wholly incorrect keeping in view the aforementioned legal
RAM PAT & ORS. v. STATE OF HARYANA 1135
[S.B. SINHA, J.]
t position that having regard to the stipulations contained in the A
-::.
said deeds of sale, possession of the vended properties had
been handed over; the vendees would be deemed to be in
possession. That is not the law. Handing over of possession
is a physical act. Nothing has been brought on record to
establish that in fact physical possession had been handed B
over by all the co-sharers.
12. It is true that some overt acts were committed by the
accused on 28.6.1993. It now, however, stands admitted that
questioning the validity or otherwise of the aforementioned
deeds of sale dated 7.5.1993 and 24.5.1993, father of the c
deceased Harda Ram filed a suit and an ad interim order of
injunction was passed in their favour. Exhibit DN whereupon
strong reliance has been placed is a complaint before the court
of City Magistrate, Narnaul being under Sections 107 and 151
of the Code of Criminal Procedure (for short, '1he Code"). The D
translated version thereof reads as under:
"It is submitted that the under mentioned persons cultivated
our field after trespassing: Sheo Ram s/o Sh. Ganpat, Daya
Ram s/o Sheo Ram, Ram Pat s/o Sheo Ram, Surendra E
s/o Tarachand, Ami Lal s/o Ganpat, Raja Ram s/o Ami Lal,
,. Jagdish s/o Ami Lal, Narendra s/o Raja Ram, Bajrang s/
o Jaisukh, Lala Ram s/o Ganpat, Balwant s/o Kabul Singh,
Omvir s/o Kapul Singh, Rajender s/o Ramswaroop, al r/o
Gandala and relatives of Sheo Ram. These persons F
cultivated the land before we reach there in which our date
was fixed on 28.6.93 before the City Magistrate, Narnaul.
The tractor was belonged to Rajender r/o Gandala. The
said land/field is situated near the school and (DHANI) at
Nawabi. When we reached at the village then Amar Singh
,,, s/o Sohan Lal told us that those persons were holding Axes
G
and sticks (Lathis). After hearing it we reached at Ateli.
Neither they have any Registry nor any mutation in their
names. And from whom registry has been done have been
injuncted.
H
1136 SUPREME COURT REPORTS [2009] 8 S.C.R.
A We have revenue entries (GIRDAWARI) in our name 1
for last 32 years. c
xxx xxx xxx
These persons are going against the law. They have
B not their names in the Revenue papers (JAMANBANDI).
The action be taken against them and they should cultivate
the land only after partition. Whether the residents of
Gandala will be able to give the possession forcibly to
them? Which is not in the possession of the person who
c has to give the possession. And one appeal dated 15.2.93
is pending against them in the court of Narnaul and a stay
order dated 14.6.93 is also against them. They are working
against the law. They must be restricted. Neither they have
any order of PATWARI and TEHSILDAR nor they are
D owner of any number. They have 1/12 share. They should
get it after partition and cultivate that portion which they are
to" be entitled for. There is not any mutation in their names.
These persons should be restricted. They are going
against the law."
E
P.W. 8 was not confronted with the purported admission
by him. He could have explained the same. In any event, .,
admission on his part was not such which was admissible
against him proprio vigore.
F
Mr. Sushi! Kumar has drawn our attention to a decision of
this Court in Bharat Singh & Anr. vs. Bhagirathi [(1966) 1 SCR
606], wherein this Court held:
"Admissions have to be clear if they are to be used against
G the person making them. Admissions are substantive
evidence by themselves, in view of ss. 17 and 21 of the
.....
Indian Evidence Act, though they are not conclusive proof
of the matters admitted. We are of opinion that the
admissions duly proved are admissible evidence
H
RAM PAT & ORS. v. STATE OF HARYANA 1137
[S.B. SINHA, J.]
irrespective of whether the party making them appeared A
... ~
in the witness box or not and whether that party when
appearing as witness was confronted with those
statements in case it made a statement contrary to those
admissions."
B
That was, however, a decision which was rendered in a
civil matter. Admission made by one of the parties thereto was
• clear and unequivocal.
We may, however, notice that in certain situations even an
admission can be explained. c
In a case of this nature, therefore, the statement made in
the aforementioned documents or before the Deputy
Superintendent of Police cannot be said to be an admission
that they had been totally dispossessed which would be D
admissible against P.W.8 proprio vigore.
Another purported admission made by P.W. 8 was said
to have been made in Exhibit DQ. The said document
disclosed that the Subordinate Judge First Class, Narnaul had
confirmed the order of injunction dated 14.6.1993 by an order E
-I dated 9.12.1994 whereagainst an appeal was preferred by
Daya Ram and Ram Pat in the Court of Additional District
;.
Judge, Narnaul. The parties admittedly had also been litigating
- before the Revenue Authorities in regard to their respective
F
claims in the matter of getting their respective names mutated
in the revenue records.
The entries in the revenue records stood in the name of
the deceased and his family.
G
13. Mr. Sushil Kumar made two inconsistent submissions
before us; firstly, relying on or on the basis of the decision of
·"
the Privy Council in (Thakur) Nirman Singh & Ors. vs. Thakur
Lal Rudra Partab Narain Singh & Ors. (1926 Privy Council
100], it was urged that the entry in the revenue records do not
H
1138 SUPREME COURT REPORTS [2009] 8 S.C.R.
A prove possession;, on the other hand, our attention was drawn
to the order passed by the Financial Commissioner dated i
25.2.2002 in terms whereof the order of the appellate authority c'
whereupon reliance has been placed by the High Court to
contend that the order passed by the revenue authorities
8 mutating the names of the accused had been set aside. The
Financial Commissioner, even if the subsequent event is to be
taken note of, in his order held that actual.possession cannot
form the basis of mutation of the name of a person claiming to
be in possession in the revenue records.
c 14. We would, therefore, proceed on the basis that the
entries made in the revenue records were not decisive for
proving actual possession.
For the purpose of appreciation of evidence on
D possession, however, the legal position should have been
considered. Appellants herein were purchasers. We have
noticed hereinbefore that they did not obtain any right to
possess the land having not purchased any definite portion of
the land; they merely purchased undivided share. Thus, even
E their vendor could not have put them in possession. Even
otherwise, it has not been denied or disputed that the deceased
and his family were in possession prior to 28.6.1993.
ol
If that be so, having regard to the provisions contained in
Section 110 of the Indian Evidence Act, 1872, a presumption
F would arise that the deceased and the members of his family
continued to be in possession.
The sole question, therefore, which arose for consideration
before the learned trial judge and consequently before the High
G Court was as to whether the purported overt acts committed
by the accused on 28.6.1993 would amount to 'settled
possession' so as to enable them to exercise their right of '
private defence in respecfof the property. Strong reliance has
been placed before the learned trial judge as also before us
H on Puran Singh & Ors. vs. The State of Punjab [(1975) 4 SCC
RAM PAT & ORS. v. STATE OF HARYANA 1139
[S.B. SINHA, J.)
518) wherein Fazal Ali, J. speaking for the Bench considered A
~ the earlier decision of this Court in Munshi Ram vs. Delhi
-.. Administration ((1968) 2 SCR 455), to hold:
" .. ,This particular expression has persuaded the High
Court to hold that since the possession of the appellants B
party in this case was only a month old, it cannot be
deemed to be a settled possession. We, however, think
that this is not what this Court meant in defining the nature
of the settled possession. It is indeed difficult to lay down
any hard and fast rule as to when the possession of a
trespasser can mature into a settled possession, But what C
this Court really meant was that the possession of a
trespasser must be effective, undisturbed and to the
knowledge of the owner or without any attempt at
concealment. For instance a stray or a casual act of
possession would not amount to settled possession. There D
is no special charm or magic in the word 'settled
possession' nor is it a ritualistic formula which can be
confined in a strait jacket but it has 'been used to mean
such clear and effective possession of a person, even if
he is a trespasser, who gets the right under the criminal E
law to defend his property against attack even by the true
owner. Similarly an occupation of.the property by a person
as an agent or a servant atthe instance of the owner will
not amount to actual physical possession. Thus in our
opinion the nature of possession in such cases which may F
entitle a trespasser to exercise the right of private defence
of property and person should contain the following
attributes:
(i) that the trespasser must be in actual physical
possession of property over a sufficiently long period; G
...
; (ii) that the possession must be to the knowledge either
express or implied of the owner or without any attempt at
concealment and which contains an element of animus
..
prossendie. The nature of possession of the trespasser H
_f
1140 SUPREME COURT REPORTS [2009] 8 S.C.R.
A would however be a matter to be decided on facts and
circumstances of each case;
(iii) the process of dispossession of the true owner by the
trespasser must be complete and final and must be
acquiesced in by the true owner; and
B
(iv) that one of the usual tests to determine the quality of
settled possession, in the case of culturable land, would
be whether or not the trespasser, after having taken
possession, had grown any crop. If the crop had been
c grown by the trespasser, then even the true owner has no
right to destroy the crop grown by the trespasser and take
forcible possession, in which case the trespasser will have
a right of private defence and the true owner will have no
right of private defence.
D
These principles logically flow from a long catena of cases
decided by this Court as well as other High Courts some
of which have been referred to in the judgment of this Court
in Munshi Ram's case (supra)."
E )()()( )()()( )()()(
"18. The second point that falls for determination is as to
what is the extent of right of private defence which the
accused can claim in this case? In this connection, the
F High Court has given a finding that since the prosecution
party had entered the land in. possession of the accused
and were trying to plough it, the appellants should have
taken recourse to the public-authorities instead of indulging
in free fight with the prosecution. In other words, the High
Court found that the right of private defence available to
G
the accused was under the limitations provided for in
Sections 99 to 102 of the Indian Penal Code and these
limitations apply to the facts of the present case, and the
accused cannot claim any right of private defence. With
respect we find ourselves unable to agree with this
H
1142 SUPREME COURT REPORTS (2009) 8 S.C.R.
A land and other attributes in regard thereto have been satisfied
so as to enable them to claim a right of private defence in
respect of the property.
In view of the decision in Puran Singh (supra), the
trespassers not only must be put in actual physical possession
8
of the property but also must continue to be in possession.
Acquiescence to act of purported possession by the accused
on the part of the complainant would arise only if an attempt is
made to take possession in their presence. On the date of
C occurrence, PW 8 started cultivating. It has been amply proved
that the scuffle lasted for only two minutes to two and half
minutes. PW8 - Rajbir was not armed with any weapon, so was
not Harda Ram (the deceased). It was Lal Singh alone who had
in his hand a small twig (Kamari). According to him, the same
is used to drive camels. Kamari was said to be used by Lal
D Singh in his sole defence as a result whereof Sheo Ram and
Raja Ram were injured. We have noticed hereinbefore that the
injuries on the person of the said two accused were simple in
nature. It is true that the fact that two of the accused persons
had suffered injuries had not been disclosed in the FIR or in
E their statement before the Investigating Officer, but the same,
in our opinion, was not necessary inasmuch as they got
themselves medically examined by Dr. Goel almost at the same
time when the other prosecution witnesses got themselves
examined. By that time they had already been arrested. It was
F the police authorities who had submitted an application along
with the injuries chart. They had been brought by Constable
Satbir Singh. Thus, the fact that two of them had suffered injuries
in the same incident was known to the Investigating Officer.
G It has furthermore well settled that whereas grievous injuries
suffered by the accused are required to be explained by the
prosecution, simple injuries need not necessarily be. Non
explanation of simple injuries of the nature suffered by the
accused would not be fatal.
H
RAM PAT & ORS. v. STATE OF HARYANA 1143
[S.8. SINHA, J.]
In Harl vs. State of Maharashtra [2009 (4) SCALE 103], A
t this Court held:
"30. On the other question, namely, non-explanation of
injury on the accused persons, learned Counsel for the
appellant has cited a decision in Lakshmi Singh and Ors.
B
v. State of Bihar (1976) 4 sec 394. In the said case, this
Court while laying down the principle that the prosecution
has a duty to explain the injuries on the person of an
accused held that non-explanation assumes considerable
importance where the evidence consists of interested
witnesses and the defence gives a version which
c
competes in probability with that of the prosecution case.
31. But while laying down the aforesaid principle, learned
Judges in paragraph 12 held that there are cases where
the non-explanation of the injuries by the prosecution may D
not affect the prosecution case. This would "apply to cases
where the injuries sustained by the accused are minor and
superficial or where the evidence is so clear and cogent,
so ihdependent and disinterested, so probable, consistent
and creditworthy, that it far outweighs the effect of the E
omission on the part of the prosecution to explain the
injuries." Therefore, no general principles have been laid
down that non-explanation of injury on accused person shall
in all cases vitiate the prosecution case. It depends on the
facts and the case in hand falls within the exception F
mentioned in paragraph 12 in Lakshmi Singh (supra)."
16. The nature of injuries suffered by the deceased and
the prosecution witnesses have been noticed by us. They had
been caused by lathis and/or jallies. Accused, therefore, were
fully armed with when they came to the place of occurrence. G
They not only assaulted the deceased indiscriminately, but the
,
j
prosecution witnesses were also not spared. The learned trial
judge laid emphasis on the fact that the injuries on the person
of Sheo Ram and Raja Ram had not been explained. We may
notice that Lal singh in his examination-in-chief itself disclosed H
•
1144 SUPREME COURT REPORTS [2009] 8 S.C.R.
A as under:
"I had a Kamari with which I used to drive the camel. I had
inflicted an injury with Kamari blow to Raja Ram hitting over
his head. One Kamari blow had been given by me to Sheo
Ram. Two-four Kamari blows had been blown by me in the
B
air and the same might have hit the accused party.
Mr. Sushi! Kumar, however, drew our attention to his denial
to the suggestion made to the said witness, which is in the
following terms:
c
"It is further incorrect to suggest that Harda Ram and I had
caused injuries to Raja Ram and Sheo Ram."
From the question put to the said witness, it is evident that
two questions were clubbed together which should not have
D been permitted by the learned trial judge. The fate of the said
statements must, therefore, be considered having regard to the
nature of the suggestion put to him. It is also worthwhile to notice
that Rajbir (P.W.8) also accepted that Lal Singh had caused
injuries to Sheo Ram and Raja Ram in his self defence. Lal
E Singh's presence at the spot, therefore, cannot be denied or
disputed. The fact that some incident had taken place also could
not be denied or disputed.
17. It has been contended that the FIR was anti dated and
F anti timed. Such a contention was raised inter alia on the
premise that the first informant got his father admitted in the
General Hospital, Narnaul at about 1.35 p.m. whereas the FIR
was lodged at about 1.50 p.m. at Ateli having regard to the fact
that one has to take at least half an hour to reach Ateli from
G the General Hospital, Narnaul in his own conveyance and also
having regard to the fact that Head Constable Kailash Chand
(P.W. 13) reached the hospital at about 5.00 p.m.
The High Court, on the other hand, opined that by the time
the examination of the deceased had ended which may be at
H
- RAM PAT & ORS. v. STATE OF HARYANA
[S.B. SINHA, J.]
1145
about 2.30 p.m.; the first informant (P.W. 8) must have reached A
the hospital as, according to the High Court, it takes about 15-
20 minutes to cover the distance from Ateli to Narnaul.
The said contention cannot be sustained having regard to
the fact that by 1.30 p.m. or 1.40 p.m. even accused persons B
were arrested; they had been produced before Dr. Goel and
/"'\, they had been examined; even P.W.12 and other witnesses
i were also examined.
(
I
The FIR might have been recorded at a later stage. But
the information about the occurrence must have been given by c
P.W. 8. to the office in-charge of Ateli Police Station prior
thereto. Even a copy of the FIR was received by the Magistrate
concerned at about 10.30 p.m. on the same day. Furthermore,
the Investigating Officers were not cross examined on that point.
In any event, it is wholly unlikely that the FIR was anti-timed and D
anti-dated. Even assuming that the same was anti-timed or anti-
dated, the fact that an incident had occurred was not disputed.
At least two of the accused persons accepted their presence.
The defence story is that two accused persons had sustained
injuries at the hands of the prosecution witness Lal Singh E
(P.W.12).
If occurrence of the incident stands admitted, in our opinion,
even if some delay has been caused in writing of the FIR, the
same would not render the entire prosecution case suspicious.
F
18. This brings us to the question as to whether a case
for exercise of right of self defence has been made out.
We have noticed hereinbefore that the appellants cannot
be said to have been in 'settled possession' of the land in G
{
question. Furthermore, they came wholly armed, whereas
except Lal Singh who was having a small twig (Kamari),
deceased party were not armed with any weapon. It was not a
dangerous weapon. No grievous injuries could have been
caused by use thereof and in fact no grievous injuries have been H
1146 SUPREME COURT REPORTS [2009] 8 S.C.R. -
A suffered by the accused Sheo Ram and Raja Ram. t
Appellants herein did not raise any plea of self defence.
According to them, they were not present at the spot at all.
Learned Senior Counsel would contend that Accused No.1 and
Accused No. 6 raised the plea of self defence. The learned trial
B
judge although accepted the said plea but the same was ,.._..__
accepted not with particular reference to the said accused. All
the accused persons did not raise the defence of exercise of t
right to private defence. In regard to claim of right of self
c adefence, the matter may have to be considered from somewhat
different angle. Accused Nos. 6, 7 and 8 were attributed with
assault of Lal Singh and two ladies, namely, Mamli and
Dhankauri.
19. The second part of the story was not relied upon. Any
D overt act on their part, thus, having regard to the fact that the
deceased - Harda Ram - had already been assaulted, there
was no evidence against Raja Ram as also accused Nos. 7
and 8 that they had participated in assaulting the deceased.
The right of private defence can be exercised provided any
E
occasion arises therefor. The learned trial judge wrongly held
so, on the premise that the appellants were in settled
possession of the property. If they were not, they had no right
of private defence to defend the possession of the property.
They were, thus, the aggressors being fully armed.
F
We are not unmindful of the fact that right of private
defence need not be specifically raised. {See Bishna Alias
Bhiswadeb Mahato & Ors. vs. State of WB. [(2005) 12 SCC
657]}..
G
We may notice that in Surendra & Anr. v. State of
Maharashtra [(2006) 11 SCC 434], this Court held:
"26. We are not unmindful of the fact that in all
circumstances injuries on the person of the accused need
H
.
RAM PAT & ORS. v. STATE OF HARYANA 1.147
[S.S. SINHA, J.]
t not be explained but a different standard would be applied A
• in a case where a specific plea of right of private defence
has been raised. It may be true that in the event prosecution
discharges its primary burden of proof, the onus would shift
on the accused but the same would not mean that the
burden can be discharged only by examining defence B
witnesses .
...
.. 27. The learned courts below committed a manifest error
:" of law in opining that the Appellants had not discharged
the initial burden which is cast on them. Even such a plea
need not be specifically raised. The Courts may only see c
as to whether the plea of exercise of private defence was
probable in the facts and circumstances of the case.
32. In regard to the duty of the prosecution to explain the
injuries on the part of the accused, this Court observed: D
'78. Section 105 of the Evidence Act casts the
burden of proof on the accused who sets up the
plea of self-defence and in the absence of proof, it
may not be possible for the court to presume the
E
correctness or otherwise of the said plea. No
positive evidence although is required to be
adduced by the accused; it is possible for him to
prove the said fact· by eliciting the necessary
materials from the witnesses examined by the
prosecution. He can establish his plea also from the F
attending circumstances, as may transpire from the
evidence led by the prosecution itself.
79. In a large number of cases, this Court, however,
has laid down· the law that a person who is G
{ apprehending death or bodily injury cannot weigh
in golden scales on the spur of the moment and in
the heat of circumstances, the number of injuries
required to disarm the assailants who were armed
with weapons. In moments of excitement and H
1148 SUPREME COURT REPORTS [2009] 8 S.C.R.
A disturbed equilibrium it is often difficult to expect the
parties to preserve composure and use exactly only
so much force in retaliation commensurate with the
danger apprehended to him where assault is
imminent by use of force. All circumstances are
B required to be viewed with pragmatism and any
hypertechnical approach should be avoided.
80. To put it simply, if a defence is made out, the
accused is entitled to be acquitted and if not he will
be convicted of murder. But in case of use of
c excessive force, he would be convicted under
Section 304 IPC."
In Satya Narain Yadav v. Gajanand & Anr. [2008 (10)
SCALE 728], this Court held:
D
"14. As noted in Butta Singh v. The State of Punjab (AIR
1991 SC 1316), a person who is apprehending death or
bodily injury cannot weigh in golden scales in the spur of
moment and in the heat of circumstances, the number of
injuries required to disarm the assailants who were armed
E
with weapons. In moments of excitement and disturbed
mental equilibrium it is often difficult to expect the parties
to preserve composure and use exactly only so much force
in retaliation commensurate with the danger apprehended
to him where assault is imminent by use of force, it would
F be lawful to repel the force in self-defence and the right of
private defence commences, as soon as the threat
becomes so imminent. Such situations have to be
pragmatically viewed and not with high-powered
spectacles or microscopes to detect slight or even
G marginal overstepping. Due weightage has to be given to,
and hyper technical approach has to be avoided in
considering what happens on the spur of the moment on
the spot and keeping in view normal human reaction and
conduct, where self-preservation is the paramount
H consideration. But, if the fact situation shows that in the
RAM PAT & ORS. v. STATE OF HARYANA 1149
[S.B. SINHA, J.]
guise of self-preservation, what really has been done is to A
assault the original aggressor, even after the cause of
reasonable apprehension has disappeared, the plea of
right of private-defence can legitimately be negatived. The
Court dealing with the plea has to weigh the material to
conclude whether the plea is acceptable. It is essentially, B
as noted above, a finding of fact."
Ir
(See also Ravishwar Manjhi & Ors. vs. State of Jharkhand
[2008 (16) SCALE 45)
In Bhanwar Singh & Ors. vs. State of MP. [2008 (7) scale c
633], this Court held:
"51. To put it pithily, the right of private defence is a
defence right. It is neither a right of aggression or of
) reprisal. There is no right of private defence where there D
is no apprehension of d21ger. The right of private defence
is available only to one who is suddenly confronted with
the necessity of averting an impending danger not of self
creation. Necessity must be present, real or apparent.
52. The basic principle underlying the doctrine of the right E
of private defence is that when an individual or his property
is faced with a danger and imme'diate aid from the state
machinery is not readily available, that individual is entitled
to protect himself and his property. That being so, the
necessary corollary is that the violence which the citizen F
defending himself or his property is entitled to use must
not be unduly disproportionate to the injury which is sought
to be averted or which is reasonably apprehended and
should not exceed its legitimate purpose. We may,
however, hasten to add that the means and the force a G
threatened person adopts at the spur of the moment to
ward off the danger and to save himself or his property
cannot be weighed in golden scales. It is neither possible
nor prudent to lay down abstract parameters which can be
applied to determine as to whether the means and force H
1150 SUPREME COURT REPORTS [20091 8 S.C.R.
A adopted by the threatened person was proper or not. t
Answer to such a question depends upon host of factors
like the prevailing circumstances at the spot, his feelings ...
,-.
at the relevant time; the confusion and the excitement
depending on the nature of assault on him etc.
B Nonetheless, the exercise of the right of private defence
can never be vindictive or malicious. It would be repugnant
to the very concept of private defence."
It was furthermore observed that it is not in all situations
that such a right can be claimed only because some of the
c accused persons have suffered injuries even if they are simple.
I
20. We have been taken through the depositions of P.W. ~
8 and P.W. 12. P.W.12's presence stands admitted. P.W.8's
presence has been doubted by the learned Sessions Judge
D only on the ground that he got his father admitted at 2.30 p.m.
The presence of P.W. 8- RaJbir, in our opinion, could not have
been doubted on such slender evidence. He was driving the
tractor. Accused persons came prepared to assault the
decea..sed. By the time the first informant could come and
E intervene, the entire incident must have occurred as it is stated
that the same took place only for two to two and half minutes.
No suggestion had been given to any of the prosecution
witnesses by the defence that no tractor was found at the place
......
or it was the deceased who himself was driving the tractor. P.W.
8 in his evidence categorically stated that he left the tractor at
F
that place. Furthermore, his evidence, taking a holistic view of
the matter, in our opinion, appears to be trustworthy. He vividly
described the entire incident. He was cross examined on all
material points. He had also explained as to why he did not
suffer any injury categorically stating and that too in cross-
,_
G examination that by the time he reached all the accused had
started running with their weapons towards their respective
~ .....
houses.
21. There cannot be any doubt or dispute whatsoever that
H if two views are possible, the Appellate Court should not
RAM PAT & ORS. v. STATE OF HARYANA 1151
[S.B. SINHA, J.]
-f. interfere with a judgment of acquittal, but this has many A
·exceptions.
In State of Punjab vs. Gurnam Kaur & Ors. [2009 (4)
SCALE 343] this Court held:
"18; The jurisdiction of this court to interfere with a judgment B
of acquittal is limited. When two views are possible, a
t judgment of acquittal should not be interfered with."
In U.O./. vs. Bal Mukund & Ors. [2009 (4) SCALE 606],
this Court held: c
"41. Furthermore, we are dealing with a judgment of
acquittal. The High Court, for good and sufficient reasons,
- had arrived at findings of fact both with regard to
voluntariness of the purported confessions made by the
respondents as also "ompliance of the mandatory statutory D
provisions vis-a-vis directions issued by the Central
Government in making search, seizure as also taking of
samples for the purpose of chemical examination having
been doubted, we do not see any reason why we should
take a contr;:.uy view as it is well-known that the appellate E
court would not interfere with a judgment of acquittal only
because another view is possible. On the other hand, if two
views are possible, it is trite, the appellate court shall not
interfere."
F
It is one of those cases, where two views were not
possible.
22. For the aforementioned reasons, the appeal is
dismissed. Appellants are on bail. Their bail bonds shall stand
~
cancelled. Accused persons are directed to surrender forthwith G
to serve out the remaining sentence.
N.J. Appeal dismissed.
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