TMI Blog1976 (11) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... and injuries to three of the accused themselves. The prosecution case in short is that on July 18, 1966, at about 7-30 to 8-00 in the morning when Ram Khelawan and his companions were removing weeds from the paddy crop sown by them in the field which included a portion of the Chak Road which had recently been encroached by the complainants' party and amalgamated with their fields, Ram Ratan and Ram Samujh armed with lathis and Din Bandhu and Ram Sajiwan carrying a ballam and Biroo respectively entered the field of Ram Khelawan with their bullocks and insited on passing through the field along with their bullocks, which according to them was a public road. The complainants protested against the highhanded action of the party of the accused on which Ram Ratan exhorted his companions to assault the deceased Murli as a consequence of which Ram Sajiwan assaulted Murli in the abdomen with his Biroo as a result of which MurIi sustained serious injuries and fell down in the field and ultimately succumbed to the injuries. The other members of the complainants' party, namely, Ram Khelawan Manohar Sarabjit, Mewa Lal and Satrohan were also assaulted by Ram Ratan and his party. Soon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ete appreciation of the evidence., that although the place of occurrence was a part of the Chak Road, yet the complainant Ram Khelawan had encroached on the same and some time before the occurrence had brought the land under cultivation over which he had grown paddy crop. The evidence of the Sub-Inspector who visited the spot clearly shows that he found paddy crop grown at the height of 4 or 6 digits. The learned counsel for the appellants has not been able to show that the concurrent finding of fact arrived at by the Sessions Judge and the High Court on this point is in any way not borne out by the evidence. The learned counsel for the appellants submitted two points before us. In the first place, he submitted that the finding of the High Court impliedly shows that the accused were trying to, assert their lawful right over the Chak Road which was wrongfully occupied by the complainant and was in possession of the villagers. The accused, therefore, had every right to throw out the complainants' party who were trespassers by force. The accused were, therefore, acting in the exercise of their right of private defence of person and property and were. justified in causing the death ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion over the land where the incident took place and had been in peaceful possession thereof for 2 to 3 weeks at least before the occurrence took place. It is well settled that a true owner has every right to dispossess or throw out a trespasser, while the trespasser is in the act or process of trespassing and has not accomplished his possession, but this right is not available to the true owner if the trespasser has been successful in accomplishing his possession to the knowledge of the true owner. In such circumstances the law requires that the true owner should dispossess the trespasser by taking recourse to the remedies available under the law. In view of the clear finding of the High Court that the complainant Ram Khelawan even after encroachment had established his possession over the land in dispute for two to three weeks before the occurrence, for the purpose of criminal law, the complainant must be treated to be in actual physical possession of the land so as to have a right of private defence to defend his possession even against the true-owner. While it may not be possible to lay down a rule of universal application as to when the possession of a trespasser becomes co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of private defence and the true owner will have no right of private defence. In this case there is a clear finding of the High Court and the Sessions Judge that the complainant Ram Khelawan had encroached upon the land in dispute, had converted it into culturable field and had grown paddy crop which the complainants' party was trying to weed out on the day when the occurrence took place. In these circumstances, therefore, the complainant was undoubtedly in possession of the land and the appellants had no right to commit trespass on the land and engage the complainants in a serious fight. As the complainant Ram Khelawan was in peaceful possession of the land to the knowledge of the appellants, he was in law entitled to defend his possession. The complainant, therefore, was fully justified in protesting to the accused when they tried to pass through his field and caused damage to the paddy crop by forcibly taking the bullocks through the field. In these circumstances the appellants who were undoubtedly the aggressors and had opened the. assault could not claim any right of private defence either of person or property. For these reasons, therefore, we agree with the finding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aused only if the Biroo after being struck in the abdomen was rotated. Much capital has been made out of this admission made by the Doctor,but on a close scrutiny we find that this circumstance is not sufficient to put the prosecution out of court. There is clear and consistent evidence of the eye witnesses that the deceased had been assaulted in the abdomen and this fact has been accepted by the two courts concurrently that the deceased Murli was assaulted by Ram Sajiwan with a Biroo. The medical evidence clearly shows that the deceased had an injury in the abdomen which could be caused by a Biroo. The exact manner in which the Biroo was pierced in the abdomen of the deceased could not have been observed by the witnesses, particularly in view of the mutual fight. Since the injury could be caused if the Biroo was rotated after being pierced, it must be presumed in the circumstances that the assailant must have rotated the Biroo after having pierced it in the abdomen of the deceased, otherwise the injuries could not have been caused to the deceased. In these circumstances, therefore, we are not able to agree with counsel for the appellants that the assault on the deceased by Ram Saj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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