Holding

The Supreme Court held that the complainants' entry did not amount to criminal trespass, so the accused had no right of private defence, and the convictions under the charged IPC sections stand.

Summary

The case arose from a dispute over agricultural land in Haryana where three members of the complainant party were killed and others injured when the accused entered the land with ploughs and weapons. The accused claimed they acted in private defence of their property and person. The Supreme Court examined whether the complainants' unauthorized entry amounted to criminal trespass under s.441 IPC, and whether the accused could invoke the right of private defence under s.96‑104 IPC. It held that the entry was not criminal trespass as there was no intent to commit an offence, and therefore the right of private defence did not arise; moreover, s.104 IPC bars causing death in private defence against criminal trespass, and Exception 2 to s.300 IPC was inapplicable. Consequently, the convictions under sections 148, 302/149, 307/149, 325/149, 324/149 and 323/149 IPC were upheld, and the appeal was dismissed, except that appellant Jai Narain was acquitted.

Issues considered

The accused's claim of right of private defence of property and person
Whether the complainants' unauthorized entry constituted criminal trespass under s.441 IPC
Applicability of s.104 IPC which limits private defence against criminal trespass
Whether Exception 2 to s.300 IPC applies to the facts
Whether the trial court could base its conviction on a factual version of its own contrary to the parties' evidence
Whether the maxim 'Falsus in uno, falsus in omnibus' applies in criminal trials
Whether convictions under s.302/149 should be altered to s.304(1) IPC

Legislation cited

Arms Act, 1959s. 25, s. 27
Indian Penal Code, 1860s. 100, s. 103, s. 104, s. 148, s. 149, s. 300, s. 302, s. 307, s. 323, s. 324, s. 325, s. 441, s. 447, s. 96, s. 97, s. 99
Terrorist and Disruptive Activities (Prevention) Act, 1985s. 6

Subjects

private defencecriminal trespassIPC sections 148 302 307 325 324 323land disputemurderexception to murderFalsus in uno falsus in omnibusappealconviction

Judgment

RAJINDER AND ORS. A
v.
STATE OF HARYANA

JULY 12, 1995

[DR. A.S. ANAND AND M.K. MUKHERJEE, JJ.]
B

Indian Penal Code :

Ss. 148,302/149, 307/149, 325/149. 324/149, 323/149 and s.300-Excep-
tion 2--Accused charged of various offences beside one of them addi Honally C
charged under s.6 of Te!Torist and Dis1uptive Activities (Prevention) Act,
1985-Dispute regarding ownership of agricultural land giving rise to incident
in which 3 persons complainant party died as a result of injuries caused by
accused party and some others got grievous injwies-Accused pleading right
of private defence of property and person-Held, complainant party did not D
commit offence of 'criminal trespass' for they unauthorisedly entered into land
in dispute only to pw~uade accused party to withdraw therefrom and not with
any intelllion to commit any offence-Accused party had no right of private
defence to property entitling them to launch murderous attack-Exception 2
to s.300 not applicable as attack by accused party was premeditated with an
intention of doing more ham1 than was necessary for purpose of private E
defence.

Ss.96 and 104, 1ight of private defence-Held not available against an
act which is not an offence-Right of private defence against "criminal
trespass" does not extend to voluntarily causing of death.
F
S.444-'Criminal trespass'-Held, no offence of 'criminal trespass' can
be said to have been committed unless any of illlention refe1Ted to in the
section is proved.

Legal Maxims : Maxim 'falsus in uno, falsus in omnibus'-Not ap- G
plicable in crimin.al trial.

TI1e eighteen appellants alongwith ten others were, in connection
with an incident, charged with various offences under the Penal Code. One
of them was also charged under s.6 of Terrorist and. Disruptive Activities
(Prevention) Act, 1985. The cause giving rise to the incident was a dispute H
863
864 SUPREME COURT REPORTS (1995] SUPP. l S.C.R.

A between the complainant party and the accused party with regard to
possession of some agricultural land which according to the prosecution
case, belonged to the father-in-law of PW 17. He died leaving behind a will
whereby he had bequeathed the land in dispute to his only son and and
after latter's death his wife, PW 17, came in possession of the land in
dispute. Later, she handed over the possession of the said land to PW 19
B
under an agreement to sell.

As regards the incident, the prosecution case was that on 17.11.1985
at about 10 A.M. when brothers and other family members of PW 19 were
working in their land nearby the and in dispute, two of the appellants came
C there with two camel ploughs; thereafter, the other accused, armed with
weapons, reached there in three tempos and a tractor and started plough-
ing the land in dispute. When PW 17 alongwith the family members of PW
19 resisted, two of the accused-appellants started two tempos and dashed
agaist Dl, D2, D3 and DW 14 as a resnlt of which they fell down; then other
D accused started beating them with jailis, lathis, ballams and pharsas which
resulted in the death of Dl, D2 and D3 and grievous injuries to others. All
the appellants then fled away leaving two tempos two camel ploughs there.
..
PW 13 rushed to her house and narated the incident to PW 19 and both
of them then left for the police station. On the way they met Police
Inspector PW 22 who was coming to the village in connection with a case
E lodged by one of the accused earlier. He recorded the statement of PW 13
and sent it to police station for registration of the case. On reaching the
place of occurrence he sent the bodies of Dl, D2, and D3 for autopsy and
completed other formalities. The investigation culminated in trial of the
accused before the Designated Court.
F
The defence case, as given out by the accused in their statements
under s.313 of the Code of Criminal Procedure and DW 15, was that they
were cultivating the land in dispute for a long time; when they came to
know that PW 19 was planning to disturb their possession, they lodged
complaints on 6.11.1985 and 11.11.1985; in the night between 11/12-11-1985,
G when PW 19 and his men damaged their crops on the land in dispute, they
lodged another c~mplaint where upon some of the men. of PW 19 were
arrested. As regards the incident of 17 .11.1985, the defence case was that
seven of the accused-appellants went to the land in dispute with camel
ploughs with a tempo carrying fertilizers and seeds; while they were
H ploughing the land the complainant party came there carrying lathies and
RAIINDERv. STATEOFHARYANA 865

jailis; PW 13 trespassed into the land and on her instigation, others A
attacked the accused party; the latter exercised their right of private
defence of their person and property and in the process seven members of
the. complainant party were injured.

The trial court held that the accused were in settled possession of B
the land in dispute. As regards the sequence of event leading to the
incident, the court did not believe the prosecution version and held that
the complainant party trespassed into the land the accused party mounted
a full strength assault on them. With regard to right of private defence,
the Court held that since the accused were not present in the field when
the complainants reached there, there was no immediate danger to their C
person and, therefore, no right of private defence of person accrued to
them. So far as right of private defence of property was concerned, the trial
court held that the action of accused party was neither covered under s.
100 nor under s. 103 !PC, and as such no right of private defence accrued
to the accused at all. The trial court convicted the appellants under ss.148, D
302/149, 307/149, 325/149, 324/149 and 323/149 !PC, besides convicting two
of the appellants under s.307 IPC, and sentenced them to different terms
of imprisonment including imprisonment for life. The other 10 accused
were acquitted of all the charges. Aggrieved, the appellants filed the appeal.

E
It was contended for the appellants 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 by
itself; that the trial court having disbelieved the evidence of four eye-
witnesses examined by the prosecution as against ten of the accused, ought F
not have relief upon the self same evidence to convict the appellants; that
the trial court having recorded a finding that the accused party was in
settled possession of the land in dispute and the complainant party had
trespassed thereon, erred in recording conviction, since in view of s.96
I.P.C. no offence was committed by the accused as they acted in bona fide
exercise of their right of private defence of their property and person; that G
even believing the prosecution case, the appellants were liable to be con-
victed under s.304(Part-1) !PC, as the facts of the case were squarely
covered by Exception 2 to Section 300 !PC.

Dismissing the appeal of the appellants except one, this Court H
866 SUPREME COURT REPORTS (1995] SUPP.1 S.C.R.

A HELD : 1. The trial Court was not justified in making out a case of
its own disbelieving and discarding the respective cases made out by the
parties. In view of the evidence adduced by the parties regarding the origin
of the incident that took pla~e on the fateful day, the trial court ought to
hal'e accepted the prosecution version. Complaints bad been lodged by both
sides against each other alleging trespass on land in dispute. Admittedly
B only a few days back one of the appellants had lodged a complaint against

--
some members of the complainant party including PW 19 for committing
tresspass into and damaging crops on the land in dispute and in connection
therewith some were arrested. [n the context of these facts, which the trial
court also noticed, it was not likely that the complainant party would
C venture to forcibly cultivate the land in dispute immediately thereafter and
face another prosecution. Judged in that light, their assertion that at the
material time the complainant party was cultivating their ancestral land
does not seem to be improbable, more so, when the accused did not even
suggest, much less prove, that they had no such land near the land in
dispute. [876-B-G]
D
1.2. Besides, the evidence of PWs 13 to 16 as to the manner in which
the trouble started and the assault took place is not only cogent and
consistent but also stands corroborated by other materials on record,
namely, the admitted presence of the members of the complainant party at
E the place of occurrence their having sustained injuries and medical
evidence corroborating the same; the autopsy of three deceased; evidence
of the investigating officer (PW 22) testifying the presence of two tempos
and two camel ploughs belonging to accused party at the place of occur-
rence and manner in which the FIR was registered; and the FIR containing
the sob stratum of the prosecution case as detailed by PW 13 at the trial.
F Pitted against the evidence of the prosecution witnesses is the evidence of
DW 15, which, keeping in view the injuries received by the members of the
complaint's side and other circumstances, cannot be relied npon. Further,
DW 1, the doctor who examined the four accused, opined that the injuries
found on their persons could be sustained by fall or in agricultural pursuits
G like striking with plough. [876-H, 877-A, H, 878-A-C]

2.1. The right of private defence, be it to defend person or property,
is available against an offence. Conversely, there is no right of private
defence against any act which is not an offence. [880-D]

H 2.2. From the oral evidence and other material on record, the only
RAJINDER v. STATEOFHARYANA 867

legitimate and reasonable inference that can be drawri is that the accused A
party had gone to the land in dispnte with a determination to cnltivate it and
for that pnrpose, fully prepared to thwart any attempt made by PW 19 and
his men to disturb such cultivation and meet any eventuality. As they about
to cultivate the land, the complainant party, which was cultivating their
land nearby, went there and entreated the accused party to vacate the said
B
land claiming themselves to be owners and in possession of the land in
dispute. Immediately thereupon the accused party launched a murderous
attack on the complainant party resulting in death of three, grievous in-
juries to three and simple injuries to other three. In the course of that attack
four members of the accused party received some injuries at the hands of
one of or other of the complainant_ party, as testified by PW 14. [879-E-F) C

23. According to provisions of s.441 IPC, 'criminal tresspass' into or
upon a property is said to be made out if, and only if, entry into or unlawful
remaining over the property is with the intent to commit an offence or to
intimidate, insult or annoy the person in possession of the property. Unless D
any of the intentions referred in s.441 is proved, no offence of criminal
tresspass can be said to have been committed. Such an intention bas to be
gathered from the facts and circumstances of a given case. (880-H, 881-A)

2.4. As held by the trial court, the land in dispute was in settled
possession of the accused pariy. However, in view of the principle nnderly- E
ing s.441 IPC it cannot be said that the complainant par!Y committed the
offence of"criminal tresspass" for they had unauthorisedly entered into the
land in dispute, which was in possession of the accused pariy, only to
• pursuade the latter to withdraw therefrom and not with any intention to
commit any offence or to insult, intimidate or annoy them. There is not an
iota of material on record to infer any such intention. Thns the accused F
par!Y had no right of private defence to proper!Y entitling them to launch
the murderous attack. On the contrary, such murderous attack not only
gave the complainant pariy the right to strike back in self defence but
disentitle the accused to even claim the right of private defence of person.
[881-C) G
2.5. Even otherwise, section 104 IPC expressly provides that right of
private defence against "criminal trespass" does not extend to the volun-
tary causing of death; and Exception 2 to s300 IPC wonld not apply in the
instant case as the attack by the accused party was premeditated and with
an intention of doing more harm than was necessary for the purpose of H
868 SUPREME COURT REPORTS (1995] SUPP. l S.C.R.

A private defence, which is evident from the injuries sustained by the
deceased, both regarding severity and number as compared to those
received by the four accused persons and in that case conviction for minor
offences only would have been set aside. [881-E-F]

3. The maxim 'Falsus in uno, Falsus in omnibns' does not apply to
B criminal trial and it is the duty of the court to disengage the truth from
falsehood instead of taking an easy course of rejecting the evidence in its
entirety solely on the ground that the same is not acceptable in respect of
some of the accused. [881-H, 882-A]

C 4. The trial court took great pains to consider and discuss the case
of the individual accused including the pleas of alibi raised on behalf of
one of the appellants and others, and on a threadbare discussion thereof
found that the participation of the appellants in the incident stood proved
beyond all reasonable doubt, while acquitting others on grounds which
were available to them only. Considering the evidence against each of the
D appellant, there is no reason to take a different view from the one taken
by the trial court so far as appellants are concerned, except appellant JN,
since the trial conrt having acquitted those whose names did not finding
place in the FIR, ought to have recorded and order of acquittal in his
favour also as he stood on the same footing. Appeal of appellant JN is
E allowed and he is acquitted of the charges. [882-B-C]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
125 of 1988.

From the Judgment and Order dated 25/30.1.88 of the Designated
.
F Court, Rohtak in Sessions Trial No. 104 of 1986.

R.K. Jain and Ravinder Bana for the Appellants.

D.B. Vohra, K.C. Bajaj and Ms. Indu Malhotra for the Respondent.

G R.L. Kohli and Mrs. Rani Chhabra for the Complainant.

The Judgment of the Court was delivered by

M.K. MUKHERJEE, J. The eighteen appellants herein along with
ten others were indicated for an incident that took place on November 17,
H 1985 in village Lawa Khurd within the Police Station of Bahadurgarh in
.•
• RAJINDER v. STATE OFHARYANA[MK MUKHERJEE.J.] 869

which three persons were killed and several injured. Against one of them A
a charge under Section 6 of the Terrorist and Disrupted Activities (Preven-
tion) Act, 1985 ('Act' for short) read with Sections 25 and 27 of the Arms,
Act, 1959 was also framed and therefore they were tried by a Designated
Court constituted under Section 9 of the Act On conclusion of the trial,
the Court, while recording an order acquittal against ten co-accused in
B
respect of all the charges levelled against them, convicted the appellants
under Sections 148, 302/149 (three counts), 326/149.325/149, 324/149 and
323/149 of the Indian Penal Code (LP.C. for short). Besides, two of the
appellants were convicted under Section 307 LP.C. (two counts) and the
remaining sixteen were convicted for the same offences with the aid of
section 149 LP.C. For the convictions so recorded the appellants were c
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
D
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 bis only son Shri Krishan. Consequent upon Shri
Krishan's death in April, 1983 his wife Sm. Krishna (PW-17) became the
owner thereof. Wbile in possession of the land she entered into an agree-
men! with Mange Ram (PW 19) on November 4, 1985 for its sale for a E
total consideration of Rs. 2,00,000 and, on receipt of a sum of Rs. 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, 1985, the
appellant Rajinder Singh, claiming himself to be one of the owners of tlie
said land (hereinafter referred to as the 'disputed land'), as an heir of Prem F
Raj, and in possession thereof, lodged a complaint with the police alleging
that Mange Ram and his men had criminally trespassed therein and
destroyed the drops he had grown thereon. On that report Bahadurgarh
Police Station registered a case being No. 532 dated 12.11.1985 against
Mange Ram and others but it ultimately ended in their discharge as the
.,,
. police found, on investigation, the accusation to be false . G

The prosecution version of the incident that took place on November
17, 1985 is that at or about 10 AM. When Sm. Krishna (P.W. 13), niece
of Mange Ram, her father Ram Singh (deceased), her uncles Rattan· Singh
(deceased) and Ohan Singh, her cousin Satbir (deceased), her sister Ms. H
870 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R. .. •
A Kamlesh (P.W. 14), her brother Balbir Singh (P.W. 15) and her sister-in-
law Sm. Rajo (P.W. 16) and Sm. Ramesh were cultivating their ancestral
land, which is at a distance of one ki/la from the disputed land. Malak Ram
and Ved Prakash (two of the appellants) came there (the disputed land)
with two camel-ploughs. A few minutes thereafter the other accused per-
sons came there in three tempos and one tractor armed with various
B
weapons. Reaching there they asked Ved Prakash and Malak Ram as to
why they had not started ploughing. On being so encouraged when they ,
started ploughing the disputed land, Sm. Krishna along with her eight
companions went there and implored the accused not to plough as they
had been purchased and ploughed by them. Then Ram Karan (since
c acquitted) instigated the other accused not to kill them. Immediately
thereupon, the appellants Bhup Singh and Ishwar, who were two of the
tempo drivers started their tempos and dashed against Rattan Singh, Ran
Singh, Satbir Singh and Sm. Kamlesh as a result of which they fell down.
Then the other accused persons started nitting them with jailis, lathis,
balams and pharsas as a result of which Rattan Singh, Ram Singh and
D
Satbir Singh fell down dead at the spot while others sustained injuries -
some of them grievous. All the appellants then left the place leave behind
two tempos and the camel ploughs.

Sm. Krishna who had also sustained some injuries at the hands of the
E miscreants rushed to her house and narrated the incident to Mange Ram.
Both of them then 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 (PW 22), who along with other
police personnel was coming to their village in a jeep for investigating into
F the case lodged on the information of appellant Rajinder Singh on
12.11.1985. P.W. 22 recorded the statement of Sm. Krishna at the bus stand
and sent it to the Police S.tation 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 inves-
tigation of the case. Reaching the spot he recorded the supplementary
G 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, 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
H of bricks were taken possession of. After preparing a site plan and
RAJ!NDER v. STATEOFHARYANA[M.K. MUKHERJEE,!.] 871

despatching the dead bodies for post-mortem examination, PW. 22 went A
to Medical College Hospital, Rohtak where injured Ohan Singh, Sm.
Ramesh, Balbir, Sm. Kamlesh and Sm. Rajo had got themselves admitted
on their own for treatment. There he recorded the statement of all the
injured except Dhan Singh, as according to the doctor he was not fit to
make a statement. His statement was recorded by P.W. 22 on the following
B
day. The accused were arrested on diverse dates and various weapons were
recovered from them. Those weapons along with the blood stained earth
earlier seized were sent to Forensic Science Laboratory (F.S.L.) for chemi-
cal examination. After receipt of reports of chemical examination and
post-mortem examination and on completion of investigation P.W. 22
submitted charge sheet against the accused. c
The appellants pleaded not guilty to the charges levelled against
them. Their version, as given out by them in their statements recorded
under Section 313 of the Code of Criminal Procedure and by Attar Singh
(OW 15), who claimed to be an eye witness, was that they were cultivating D
the disputed land for a number of years. Having learnt a few days before
the incident that Mange Ram was planning to destroy their crops, two of
them personally asked him not to do so. As, Mange Ram refused to oblige
and threatened to cause harm t~ them, lodged complaints against Mange
Ram on 6.11.1985 and 11.11.1985 but. no action was taken by the Police E
thereon. Encouraged thereby, in the night of November.11/12, 1985, Mange
Ram and his men uprooted the crops tney had sown on the disputed land
a month earlier. For this mischief they again lodged a complaint against
Mange Ram and his men and some of them were arrested. As regards the
incident on November 17, 1985 their version was that at or about 6 AM.
seven of them - wno are all appellants before us- went to the disputed
F
land with camel ploughs and a tempo carrying fertiliser and seeds. While
they were ploughing the land, seven persons, namely Ran Singh, Rattan
Singh, Ohan Singh, Satbir, Sm. Kamlesh, Sm. Rajo and Sm. Ramesh came
there carrying lathis and jailis. Ran Singh, father of Sm. Krishna (PW 13),
trespassed into the di>puted land and shouted that they should be killed G
and forcible possession of the land taken. Then Satbir shattered the wind
screen of their tempo with a jailis while others caused hurt to some of them.
Finding no other alternative they exercised their right of private defence
of property and person as a result of which all the seven persons who had
trespassed into the land were injured. The other appellants however denied H
872 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A 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
B 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 not Sm. Krishna (PW 17), widow of Shri Krishna and,
C consequently the question of her delivering possession of that land to
Mange Ram after the execution of the agreement for sale did 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
D therefrom was patently false. with the above observation, the Court drew
the following conclusion :

"What appears is that in the morning of 17.1.1985, the complainant
party trespassed into this land, and when the accused party came
to know about, they immediately mounted a full- strength assault
E
on them to throw them out. I am aware that this is not the version
of either party. I am also aware of the dictum that Court is not to
evolve third story. But I am also conscious that it is one of the
bounden and sacred duties of the Court to sift truth, to separate
the grain from the chaff. And after giving a serious through to the
F matter on record and the circumstances emerging therefrom, I
have come to the conclusion recorded above."

The trial Court next posed the question as to whether the com-
plainant party's illegal and unauthorised entry into the land entitled to
G accused to cause harm to them - and particularly to the extent they had
caused - and answered the same with the following words:

"Here, the first thing is the injuries sustained by the accused. they
have just been reproduced above in paragraph No. 24. They are
only eight in number and all are superficial. As against this, the
H total number of injuries found on the complainant party is sixty-
.......
,, RATINDER v. STATE OF HARYANA [M.K. MUKHERJEE, I.] 873

five. It is true that comparative number of~njuries is not the sole A
~ .. decisive factor, but it is one of the guiding factors for the court to
determine the extent of right of self-defence. Another important ·
fact is the parts of body involved. The injuries on the deceased
were on vital parts and it has not been disputed that they were
sufficient to cause immediate death. Indeed, this could not be
B
disputed, because the deaths occurred at the spot itself. Thus is
clear that the accused have committed much more harm then was
necessary."

In recording the above fmding the trial Court took into consideration
the fact that no explanation was forth coming either from the accused or c
from D.W. 15, as to how the three victims met with their death. In
negativing the plea of right of the private defence of property and person
raised by the accused the Court lastly observed :

- • "Furthermore, since the accused were not present in the field when
the complainant's party entered there, as held by me, above, there
was no immediate danger to their person. Therefore, no right of
private defence of person accrued to them. In any case, there was
no danger of death or grievous hurt and, therefore, they had no
D

right to cause the harm which they have caused to the complainant
party. E

• As regards the right of private defence of property, the only
offence committed by the complainant party, was that under Sec-
tion 447 of the Indian Penal Code, and that would not given the
accused a right of self-defence to the extent of causing grevious F
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.
~ G
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." H
874 SUPREME COURT REPORTS [1995) SUPP. 1 S.C.R.

A In assailing the judgment 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 having disbelieved the evidence of the four eye-witnesses ex-
B amined by the prosecution as against ten of the accused ought not to have
relied upon the self same evidence to convict the appellant. It was then
contended that having regard to the findings recorded by the trial Court
that the accused party were in settled possession of the disputed land and
that the complainant party had criminally trespassed thereon and the
uncontroverted evidence on record that four of the accused sustained
C injuries in the incident, the trial Court ought to have held, in view of Section
96 of the Indian Penal Code, that no offence was committed by the accused
as they acted in bonafide exercise of their right of private defence of
property and person. The learned counsel lastly submitted that even if the
entire case of the prosecution was believed the conviction under Section

-
302 read with 149 I.P.C. could not be sustained and it was liable to be
D
altered to one under Section 304 (Part I) I.P.C. as the facts of the case
were squarely covered by exception 2 to Section 300 !PC.

In repudiating the above contentions, the learned counsel appearing
on behalf of the respondent-State urged that the findings of the trial Court,
E that the accused party were in settled possession of the disputed land and
that the complainant party had criminally trespassed therein before the
farmer's arrival, were in view of the evidence on record, patently wrong. ...
He, however, urged that the other findings recorded by the trial Court were
fully borne out by the evidence on record. As regards the contention of the
F appellants that they were entitled to an order of acquittal in view of
acquittal of ten others the Counsel urged that the principle "Falsus in uno,
Falsus in omnibus" was not available in criminal trial. Besides, he sub-
mitted, the reasons which weighed with he trial Court for the acquittal of
the ten others were not available to the appellants. He lastly urged that
considering the manner in which the assault took place and the nature and
G number of injuries the accused inflicted on the deceased and other mem-
bers of the complainant party Exception 2 to Section 300 of the Indian
Penal Code had no manner of application.

Having carefully considered and assessed the evidence on record, so
H far as they relate to the appellants, we are unable to accept any of the
~-... RAJINDER v. STATE OF HARYANA [M.K. MUKHERJEE,J.] 875

contentions raised on their behalf even proceeding on the assumption that A
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, Ohan Singh Satbir Singh,
B
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
order 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 c
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 lshwar (two of the
D
-- appellants) put into motion the two tempos, of which they were the drivers
and dashed against some of them felling them down. Then Bhup and
Ishwar stopped their tempo•. The accused persons then started beating the
members of the complainant party with the various weapons they were
carrying as a result of which Ran Singh, Rattan Singh and Satbir Singh fell
down dead on the spot, Ohan Singh, Sm. Raja and Sm. Kamlesh sustained E
grievous injuries including fractures and the other three sustained minor
injuries. Then the accused persons left in one tempo and a tractor.

The accused in their turn led evidence through O.W. 15 Attar Singh
to prove that in the morning when he had gone to plough his land, adjacent F
to the disputed land, he found Nafe, Phool Chand, Bhup, Nathu, Mahinder,
Surte and Romesh (all appellants before us) ploughing the disputed land.
·Sometimes thereafter he saw Ran Singh, Rattan Singh, Ohan Singh, Satbir
Singh, Sm. Kamlesh, daughter of Ohan Singh and Sm. Ramesh and Sm.
Rajo, two daughter-in-law of Ohan Singh (seven members of the com-
~
plainant party) coming there. According to him while the male member G
were carrying jailis the ladies were carrying lathis. His next stated that Ran
Singh raised lalkara and then starting beating Mahinder, Ramesh and Bhup
causing injuries on them. Besides, Nafe was also beaten up but the witness
could not say who beat him. Then Rajinder and others picked up jailis and
lathis in their defence causing injuries to the above mentioned seven H
876 SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.

A members of the complainant party.

As noticed earlier the trial Court disbelieved both the versions
relating to the genesis of the assault and gave a version of its own which
has already been reproduced. We are in complete agreement with the
learned counsel for the appe..dnts that the trial Court was not justified in
B making out a case of its own, disbelieving and discarding the respective
cases made out by the parties; but then, having given our anxious con- <
sideration to the evidence adduced by the parties regarding the origin of
the incident of that fateful day, we are of the opinion that the trial Court
ought to have accepted the prosecution version. The trial Court held that
c keeping in view the incidents that took place earlier on November 12 and
November 14, 1985 and the fact that a large number of miscreants came

-
in three tempos and one tractor armed with deadly weapons for a mur-
derous assault it would be an insult to common sense to believe the
prosecution story that the nine members of the complainant party went
D 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 - appellant Rajinder had lodged a complaint against some
members of the complainant party including Mange Ram for committing
E trespass into and damaging crops of the disputed land and in connection
therewith some of them were arrested. Against on November 14, 1985 Sm.
Rajo (P.W. 16) had lodged an F.l.R. against some of the accused persons ...
alleging commission of offences under Section 452 and 323 !PC. The
motive for the assault as given therein was that the complainant party had
F 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. Judge in that light their assertion that at the
material time they were cultivating their ancestral land does not seem to
be improbable more so, when the accused did not even suggest, much less
G prove, that they had no such land near the disputed land.

Besides, the evidence of P.Ws. 13, 14, 15 and 16 as to the manner in
which the trouble started and the assault took plaee is not only cogent and
consistent but also stands corroporated by other materials on the record,
H which may be summarised as under :
RA.IINDER v. STATE OF HARYANA [M.K. MUKHERJEE, J 877

(i) The accused admitted the presence of seven out of the nine A
members of the complainant party (except P.Ws. 13 & 15) at the time of
the incident and of their having sustained injuries.

(ii) Dr. S.K. Bhutani (P.W 2) examined P.W. 13 on 17.11.1985 at 1.45
p.m. and found three injuries on her person; one of which, he opined, could
be caused by a pointed weapon and other two by blunt weapon. B

., (iii) On the same afternoon (17.11.1985) Dr. J.S. Lamba (P.W. 4)
examined Ohan Singh, Sm. Ramesh, Sm. Kamlesh (P.W. 14) Sm. Raja
(P.W. 16) and Balbir (P.W. 15) and found lacerated injuries on their
persons. On 'X'ray examination Ohan Singh was found to have sustained c
compound fractures of both bones or right forearm and of right humerus
and fracture of left radius: Sm. Kamlesh sustained fracture of shaft of right
femur and Sm. Raja sustained fracture of left parietal bone. According to
/
Dr. Lamba injury No. 8 of Ohan Singh - deformity of right upper limb with
angulation - could be caused by being hit by a tempo and also by being run
over by it. D
•
' (iv) Dr. K.K. Chawla (P.W.1) who held the post-mortem examina-
lions on the three deceased on 18.11.1985 found fifteen injuries on Satbir,
fourteen of which were incised and/or penetrating wounds on the upper
part of the body, that is chest, neck and head; twenty five injuries on Ran E
Singh of which eight were abrasions, two lacerations and the rest either
incised or penetrating wounds and seventeen injuries on Rattan Singh,
most of them incised and penetrating wounds. In the opinion of Dr. K.K.
Chawla the incised wounds could be caused by Pharsas and incised
penetrating wounds by ballams. He further opined that injury No. 17 on
the person of Ran Singh could be caused if some projective portion of the F
tempo hit the victim on the thigh and injury No. 16 on the person of Ran
Singh and injury No. 14 on the person of Rattan Singh could be caused if
a tempo ran over the victims. :.

(v) P.W. 22, the Investigating Officer testified that on reaching the
G
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 H
878 SUPREME COURT REPORTS [1995] SUPP. I S.C.R.

A 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
B
above is the evidence of Attar Singh (P.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 present pur-
C poses. 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 reliance thereupon. According to D.W. 15 when he saw the
accused working in the disputed land there was only one tempo standing
by their side, but then, as noticed earlier, the evidence of P.W. 22 clearly
D proves that there were two tempos at the spot and that Rajinder (the
appellant) produced documents of those two tempos. Such presence of two
tempos not only discredits D.W. 15 but also make the version of the
•
appellants that they came with one tempo which carried fertilisers un-
trustworthy. D.W. 15 next stated that the male members of the complainant
party were carrying jailis and the ladies lathies and that Ran Singh had
E caused hurt to Mahinder, Ramesh and Bhup. If this part his evidence is to
be believed Ran Singh must have assaulted them. with jailis, which admit-
tedly is a sharp weapon, but Dr. Ravi Kanta (D.W.l) opined that all the
injuries he found on their persons caused by blunt weapons. Then again,
according to D.W. 15, after the above named four persons were injured
F the accused persons present there took up the jailis and lathies and beat
the seven members of the complainant party present there to defend
themselves, but as noticed earlier, Dr. Chawla (P.W.l) testified that most
of the injuries found on the persons of the deceased could be caused by
ballams, pharsas and spears. While being cross-examined he asserted that
some of the injuries could not be caused by jailis or by lathi and they could
G be caused on being run over by tempo. The other reason which prompts
us to discard the evidence of D.W. 15 is that he did not give any explanation ..
whatsoever as to how Ran Singh, Rattan Singh and Satbir Singh met with
their death at the spot. Indeed, according to him nobody had died on the
field even though he claimed to have left the field after the fight was over.
H According to this witness only Ran Singh was lying on the ground while
RAJINDER v. STATEOFHARYANA[M.K. MUKHERJEE,J.] 879

others were standing. We are in complete agreement with the trial Court A
that having regard to the nature and number of injuries sustained by Rattan
•.
Singh and Satbir it was absurd to claim that he found them standing.

Coming now to the evidence of D.W. 1 we find that he examined the
appellants Nafe Singh and Ramesh in the night of 17.11.1985 at 11.30 p.m. B
He found two lacerated wounds and one diffused swelling on the person
of Nafe Singh and two lacerated wounds on the person of Ramesh. His
evidence further discloses that on 21.11.1985 he examined appellant
Rajinder Singh and Bhup Singh and found one linear 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 C
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 agricult\Jral pursuits like striking with
plough.
D
From the above discussion the only legitimate and reasonable in-
ference 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 by Mange Ram and his men to disturb
such cultivation and meet any eventuality. As they were about cultivate the E
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 death
of three, grievous injuries to three and simple injuries to other three. In F
course of that attack four members of the accused party received some
injuries at the hands of one or other of the complainant party (as testified
by P.W.14).

Having drawn the above inferences we have now to ascertain whether
the unauthorised entry of the complainant party in the disputed land, which G
according to the trial Court was in settled possession of the accused party
legally entitled the latter to exercise their right of private defence and, if
so, to what extent. The fascicule of Sections 96 to 106 I.P.C. codify the
entire law relating to right of private defence of person and property
including the extent of and the limitation to exercise of such right. Section·. H
880 SUPREME COURT REPORTS (1995] SUPP.1 S.C.R.

A 96 provides that nothing is an offence which is done in the exercise of the
right of private defence and Section 97 which defines the area of such
exercise reads as under:

"Every person has a right, subject to the restrictions contained in
section 99, to defend -
B
First. - His own body, and the body of any other person against
any offence affecting the human body:
,-
Secondly. - The property, whether moveable or immoveable, of
himself or of any other person. Against any act which is Im offence
c falling under the definition of theft, robbery, mischief or criminal
trespass, or which is an attempt to commit theft, robbery, mischief
or criminal trespass.

(emphasis supplied) .-
D
On .a plain reading of the above section it is patently clear that the
right of private defence, be it to defend person or property, is available
.
against an offence. To put it conversely, there is no right of private defence
against any act which is not an offence. In the facts of the instant case the
accused party was entitled, in view of Section 97 and, of course, subject to
E the limitation Section 99, to exercise their right of private defence of
property only if the unauthorised entry of the complainant party in the
disputed land amounted to "criminal trespass" as defined under section 441
I.P.C. The said Section read as follows :
'·
"However enters into or upon property in the possession of another
F with intent to commit an offence or to intimidate. Insult or annoy
any person in possession of such property.

or having lawfully entered into or upon such property unlaw-
fully remains there with intent thereby to intimidate, insult or annoy
G any such person, or with intent to commit an offence.

is said to commit "criminal trespass11 • ~

It is evide.nt from the above provision that unauthorised entry into or
upon property in the possession of another or unlawfully remaining there
H after lawful entry can answer the definition of criminal trespass if, and only
RAJINDER v. STATE OF HAR YANA [M.K. MUKHERJEE. J. J 881

if, such entry or unlawful remaining i~ with the intent to comn1it an offence A
or to intimidate insult or annoy the person in possession of the property.
In other words, unkss 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 an intention has to be gathered from the facts and
circumstances of a given case. Judged in the light of the above principles
B
it cannot be said that the complainant party conlll1itted 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
offence or to insult, intimidate or annoy them. Indeed there is not an idea
of material on record to infer any such intention. That .necessarily means c
that the accused party had not right of private defence to property entitling
them lo launch the murderous attack. On the contrary, such murderous
attack not only gave the complainant party the right to strike back in self
defence but disentitled the accused to even claim the right of private
defence of person.
D
We hasten to add, that even if we had found that the complainant
party had criminally trespassed into the land entitling the accused party to
exercise their right of private defence we would not have heen justified in
disturbing the convictions under Section 302 read with Section 149 LP.C.,
for Section 104 I.P.C. expressly provides that right of private defence E
11 1
against criminal trespass does not extend to the voluntary causing of death
'

and Exception 2 to Section 300, I.P.C. has no manner of application here
• as the attack by the accused party was premeditated and with an intention
of ·doing more harm then was necessary for the purpose of private defence,
which is evident from the injuries sustained by the three deceased, hath F
regarding severity and number as compared to those receive by the four
accused persons. However, in that case we might have persuaded oursel-
ves to set aside the convictions for the minor offence only; but then that
would have been, needless to say, a poor solace to the appellants.

As regards the contention raised on behalf of the appellants that G
having acquitted some of the accused persons disbelieving the evidence of
the prosecution witnesses the trial Court ought not to have relied upon the
same to convict them, we can only say that the learned counsel for the State
was fully justified in contending that the maxim 'Falsus in uno, Falsus in
omnibus' does not apply to criminal trials and it is the duty of the Court H
882 SUPREME COURT REPORTS j1995J SUPP. 1 S.C.R.

A to disengage the truth from falsehood instead of taking an easy course of
rejecting the evidence in its entirety solely on the ground that the same is
not deceptable in respect of some of the accused. On perusal of the
impugned judgment we find that the trial Court took great pains to
consider and discuss the case of the individual accused including the please
of alibi raised on behalf of appellant lshwar and others and on a threadbare
B
discussion thereof found that the participation of the appellants before us
in the incident stood proved beyond all reasonable doubt, while acquitting
others on grounds which were available to them only. Having carefully
considered the evidence against each of the appellants we do not find any
reason to take a different view from the one taken by the trial Court so far
c as the appellants are considered except appellate .Tai Narain as we feel that
the trial Cc 1rt having acquitted those whose names did not find place in
the F.l.R. ought to have recorded an order of acquittal in his favour also
as he stood on the same footing.

In the result we dismiss this appeal of all the appellants except
D appellant Jai Narain, whose appeal we allow. Since all the appellants are
on bail, Jai Narain will stand discharged from his bail bond while others
\Vill no surrender to their bail bonds to serve out the sentences imposed
upon them by the trial Court.

R.P. Appeal -dismissed.