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TMI Blog1995 (7) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... 149.325/149,324/149 and 323/149 of the Indian Penal code (I.P.C.for short). Besides, two of the appellants were convicted under Section 307 I.P.C.(two counts) and the remaining sixteen were convicted for the same offences with the aid of Section 149 I.P.C. for the convictions so recorded the appellants were sentenced to different terms of imprisonment, including life. The above order of conviction and sentence is under challenge in this appeal filed under Section 16 of the Act. The prosecution case as disclosed by the evidence led at the trial is as under; One Prem Raj was the owner of 19 killas of land in village Lawa khurd. He died in May, 1982 leaving behind a will whereby he had bequeathed that land to his only son Shri Krishan. Consequent upon Shri Krishan's death in April, 1983 his wife Sm.Krishna (PW17) became the owner thereof. While in possession of the land she entered into an agreement with mange Ram (PW19) on November 4,1985 for its sale for a total consideration of ₹ 2,00,000/- and,on receipt of a sum of ₹ 50,000/- out of the said amount at the time of execution of the deed of agreement, handed over the possession to Mange Ram. On november 12,1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... left for the Police Station to lodge an information about the incident, when they arrived at the local bus stand for that purpose, they met Police Inspector Rattan singh (PW22), who along with other police personal was coming to their village in a jeep for investigating into the case lodged on the information of appellant Ranjinder Singh on 12.11.1985.P.W22 recorded the statement of Sm.Krishna at the bus stand and sent it to the police station through Constable Rambhagat, who was accompanying him, for registration of a case. he then proceeded to the disputed land along with Sm.Krishna and Mange Ram to take up investigation of the case. Reaching the spot he recorded the supplementary statement of Sm.Krishna and sent her for medical examination. He held inquest into the death of Ran singh and Rattan singh while S.I. Phool Singh (Pw 21), who was accompanying him, held inquest into the death of Satbir Singh. Some blood stained earth from five different spots were seized by him and two tempos, two camels, two ploughs and some pieces of bricks were taken possession of. After preparing a site plan and despatching the dead bodies for post-mortem examination, P.W.22 went to Medical college ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons who had trespassed into the land were injured. The other appellants however denied their presence at the spot and contended that they had been falsely implicated. The appellant, Ishwar put forward a plea of a alibi contending that he was a conductor of Haryana Roadways and at the time of the alleged incident he was on duty in a bus plying from Delhi to Katra. In support of their respective cases the prosecution examined twenty two witnesses and the defence sixteen. On consideration of the evidence, both oral and documentary, the trial court held, firstly, that the accused were in settled possession of the disputed land and not Sm.Krishana (PW 17) widow of Shri Krishan and, consequently the question of her delivering possession of that land to Mange Ram after the execution of the agreement for sale old not arise. As regards the sequence of events on the fateful morning the trial court observed that the prosecution version that on seeing the accused entering into the disputed land for ploughing, the complainant party came from their ancestral land and with folded hands requested them to withdraw therefrom was patently false. With the above observation, the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere was no danger of death or grievous hurt and, therefore, they had no right to cause the harm which they have caused to the complainant party. As regards the right of private defence of property, the only offence committed by the complainant party, was that under Section 447 of the Indian Penal Code, and that would not give the accused a right of self-defence to the extent of causing grevious hurt to death. Thus the action of the accused party was neither within the scope of section 100 of the Indian penal Code nor within the purview of Section 103. Above all, the accused had time to have recourse to the protection of public authorities as well. Therefore, no right of private defence accrued to the accused at all even on the holding that they were in settled possession and the complainant party had committed trespass on the morning of 17.11.1985. In assailing the judgement the learned counsel for the appellants first submitted that having disbelieved the prosecution case as to the manner in which the onslaught originated, the trial Court was not justified in basing the conviction on a case made out by itself.It was next contended that the trial Court h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir behalf even proceeding on the assumption that the finding of the trial Court that the accused were in settled possession of the disputed land is unassailable. Prosecution led evidence through Sm.Krishna (P.W.13) Sm.Kamlesh (P.W.14), Balbir (P.W.15) and Sm.Rajo(P.W.16) that in the morning of November 17,1985,when they along with their other family members namely, Ran Singh, Dhan singh, Satbir Singh, Balbir singh and Sm. Ramesh were cultivating their ancestral land, which separated the disputed land by a killa, accused Ved Prakash and Malak Ram came there with two camel ploughs. A few minutes thereafter the other accused came there in three tempos and one tractor armed with various weapons including pharsas, ballams and lathis and asked Ved Prakash and Malak Ram as to why they had not started ploughing the disputed land. At that stage all the members of the complainant party went to the disputed land and requested the accused with folded hands to withdraw from that land as they had purchased the same and also ploughed it. According to the above four witnesses. Immediately thereupon on the instigation of Ram Karan (since acquitted) Bhup and Ishwar (two of the appellants) put into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assault it would be an insult to common sense to believe the prosecution story that the nine members of the complainant party went there with folded hands to persuade them to withdraw. In the context of the evidence on record we are constrained to say that the above remark made by the trial Court is not only uncalled for and unsustainable but unfortunate. Admittedly only a few days back - on November 12, 1985 to be precise - the appellant Rajinder had lodged a complaint against some members of the complainant party including Mange Ram for committing trespass into and damaging crops of the disputed land and in connection therewith some of them were arrested. Again on November 14, 1985 Sm Rajo (P.W.16) had lodged an F.I.R. against some of the accused persons alleging commision of offences under Section 452 and 323 IPC. The motive for the assault as given therein was that the complainant party had ploughed the disputed land. In the context of these facts, which the trial Court also noticed, it was not likely that the complainant party would venture to forcibly cultivate the disputed land immediately thereafter and face another prosecution. Judged in that light their assertion that at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpo ran over the victims. v) P.W.22, the Investigating Officer testified that on reaching the spot he found two tempos and two camel ploughs and that later on Rajinder (the appellant) produced documents of those two tempos. vi) The evidence of P.W.22 also proves that P.W.13 lodged her complaint with him with utmost dispatch, in as much as it was made before him at 12.15 P.M; and that the same was forwarded to and received by local Magistrate on the self same day at 3.45 p.m. and vii) The F.I.R. contains the sub stratum of the prosecution case as detailed by P.W.13 at the trial. Pitted against the evidence of the prosecution witnesses as discussed above is the evidence of Attar Singh (D.W.15) who gave the defence version of the incident, and Dr. Ravi Kanta (D.W.1) who examined the appellants nafe, Ramesh, Mahinder and Bhup Singh and found injuries on their persons. Though 14 other witnesses were also examined on behalf of the defence their evidence, however, is not relevant for our persent purposes. On a careful analysis of the evidence of D.W.15, which we have detailed earlier, in the light of other evidence on record we are unable to place any r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on 21.11.1985 he examined appellant Rajinder Singh and Bhup Singh and found one liner lacerated wound on the person of the former and one linear injury and a scab on the person of Bhup Singh. He testified that the injuries seen by him on the above two persons were four days old. In cross- examination D.W.1 admitted that the injuries found by him on the persons of the above four could be sustained by fall. He further opined that injuries found by him on Mahinder and Bhup Singh could be caused in agricultural pursuits like striking with plough. From the above discussion the only legitimate and reasonable inference that can be drawn is that the accused party had gone to the disputed land with a determination to cultivate it and, for that purpose, fully prepared to thwart any attempt made by Mange Ram and his men to disturb such cultivation and meet any eventuality. As they were about to cultivate the land the complainant party which was cultivating their ancestral land nearby, went there and entreated them to vacate the land claiming to be its owner and in possession. Immediately thereupon the accused party launched a murderous attack on the complainant party resulting in d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit criminal trespass . It is evident from the above provision that unauthorised entry into or upon property in the possession of another or uniawfully remaining there after lawful entry can answer the definition of criminal trespass if, and only if, such entry or unlawful remaining is with the intent to commit an offence or to intimidate insult or annoy the person in possesion of the property. In other words, unless any of the intentions referred in Section 441 is proved no offence of criminal trespass can be said to have been committed. Needless to say, such anintention has to be gathered from the facts and circumstances of a given case. Judged in the light of the above principles it cannot be said that the complainant party committed the offence of criminal trespass for they had unauthorisedly entered into the disputed land, which was in possession of the accused party, only to persuade the latter to withdraw thereupon and not with any intention to commit any of ..... 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