# Mahabir & Ors. (In Jail) v. State of U.P

- **Citation:** (2021) 11 ILRA 515
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-29
- **Case number:** Criminal Appeal No. 530 of 1982
- **Bench:** Anjani Kumar Mishra, Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahabir-ors-in-jail-v-state-of-u-p-46597
- **Pages:** 15

## Headnote

(A) Criminal Law - The Indian Penal Code, 1860
- Section 148 - Appeal against conviction -
rioting ,armed with deadly weapon , Section
149 - Every member of unlawful assembly
guilty of offence committed in prosecution of
common object , Section 302 - Murder ,
Section 100 - When the right of private defence
of the body extends to causing death - cardinal
principle of law - in criminal cases primarily it
is the duty of the prosecution to prove its case
beyond reasonable doubt - burden on the
prosecution alone but when there are two
versions of the parties about the same
occurrence the Court cannot loose the sight of
either of them and has to consider both the
versions in order to come to a conclusion as
who was the aggressor and what was the real
genesis of occurrence - accused not required
to prove their case to the hilt like the
prosecution, but it is to be seen if the defence
version is probable.(Para - 16)

(B) Criminal Law - law of private defence - It
does not require that the person assaulted or
facing an apprehension of an assault must run
away for safety - It entitles him to defend
himself and law gives him the right to secure
his victory over his assailant by using the
necessary force. (Para - 21)

Complainant party forcibly trying to occupy disputed
land - objection - started to assault - apart from lathi,
sharp-edged weapon was also used - accused
suffered some injuries on vital part of body - injuries
grievous in nature - accused within their right of
private defence of person - extends to causing death
- Trial Court held - complainant party has the right of
private defence of property and accused have no right
of private defence of person. (Para - 22)

HELD:-Section 100 of I.P.C. is fully applicable on the
facts of the present case and right of private defence
of person extends to causing death. Trial Court failed
to properly appreciate the evidence on record and
findings recorded by it that the complainant party has
the right of private defence of property and accused
have no right of private defence of person is against
the evidence on record and perverse, erroneous and
not sustainable in the law. Trial Court committed error
in holding accused guilty for charges under Section
148 and 302 read with Section 149 I.P.C..
Prosecution failed to prove its case and accused are
entitled for acquittal. (Para - 24)

Criminal Appeal allowed. (E-7)

List of Cases cited:-

## Text

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11 All. Mahabir & Ors. Vs. State of U.P.
515

(a) contusion on back at level of T-6 to
T-12 about 15 cm x 9 cm.

(b) contusion on the right-side of back
at level of T-10 to T-2 about 5 cm x 4 cm.

(c) abrasion on post aspect of right
thigh near right knee joint about 2 cm x 1 cm.

25. In the internal-examination on the body
of the deceased, the spinal cord and ribs were
found fractured. Right lung and liver also found
injured. The doctor opined that deceased died
due to excess bleeding from antemortem
injuries. Therefore, it is established that
deceased died due to excess bleeding of internal
injuries sustained by her. Having analyzed the
antemortem injuries, we have reached to the
conclusion that appellant used the spade to
attack the deceased from reverse-side because
deceased sustained two injuries of contusion.
There is no injury of incised wound. Hence,
spade was used from reverse side, which shows
that appellant was not having any intention to
kill the deceased, but certainly he had
knowledge that his act was likely to cause death.

26. O n overall scrutiny of the facts and
circumstances of the case coupled with the
opinion of the medical officer and considering
the principle laid down by the Hon'ble Apex
Court in the case of Tuka Ram and others vs.
State of Maharashtra [(2011) 4 SCC 250] and
in the case of BN Kavadakar and another vs.
State of Karnataka [1994 Supp (1) 304], we are
of the considered opinion that the offence would
be punishable under Section 304 (Part-I) IPC.

27. From the upshot of the aforesaid
discussion, it appears that the death caused by
the accused was not intended and the injuries
were though sufficient in the ordinary course of
nature to have caused death, the accused had no
intention to cause death, therefore, the instant
case false under the Exceptions 1 and 4 to
Section 300 IPC.

28. In the light of the foregoing
discussions, the appeal is liable to be allowed in
part. Appellant is held guilty for commission of
the offence under Section 304 (Part-I) IPC
instead of offence under Section 302 IPC along
with other offences punishable under Sections
323 and 324 IPC.

29. Hence, the conviction and sentence
awarded to the appellant for the offence under
Section 302 IPC is converted into the offence
under Section 304 (Part-I) IPC and appellant is
sentenced under Section 304 (Part-I) IPC for 14
years rigorous imprisonment and fine of
Rs.5,000/-. The appellant shall undergo further
simple imprisonment for one year in case of
default of fine. Sentence awarded under Sections
323 & 324 IPC shall remain intact. All the
Sentences shall run concurrently.

30. Accordingly, the appeal is partly
allowed, as modified above.
----------

(2021)11ILR A515
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.10.2021

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 530 of 1982

Mahabir & Ors. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri C.S. Saran, Sri Amar Saran, Sri Devendra
Swaroop, Sri Sikandar B. Kochar
516 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondent:
A.G.A.

(A) Criminal Law - The Indian Penal Code, 1860
- Section 148 - Appeal against conviction -
rioting ,armed with deadly weapon , Section
149 - Every member of unlawful assembly
guilty of offence committed in prosecution of
common object , Section 302 - Murder ,
Section 100 - When the right of private defence
of the body extends to causing death - cardinal
principle of law - in criminal cases primarily it
is the duty of the prosecution to prove its case
beyond reasonable doubt - burden on the
prosecution alone but when there are two
versions of the parties about the same
occurrence the Court cannot loose the sight of
either of them and has to consider both the
versions in order to come to a conclusion as
who was the aggressor and what was the real
genesis of occurrence - accused not required
to prove their case to the hilt like the
prosecution, but it is to be seen if the defence
version is probable.(Para - 16)

(B) Criminal Law - law of private defence - It
does not require that the person assaulted or
facing an apprehension of an assault must run
away for safety - It entitles him to defend
himself and law gives him the right to secure
his victory over his assailant by using the
necessary force. (Para - 21)

Complainant party forcibly trying to occupy disputed
land - objection - started to assault - apart from lathi,
sharp-edged weapon was also used - accused
suffered some injuries on vital part of body - injuries
grievous in nature - accused within their right of
private defence of person - extends to causing death
- Trial Court held - complainant party has the right of
private defence of property and accused have no right
of private defence of person. (Para - 22)

HELD:-Section 100 of I.P.C. is fully applicable on the
facts of the present case and right of private defence
of person extends to causing death. Trial Court failed
to properly appreciate the evidence on record and
findings recorded by it that the complainant party has
the right of private defence of property and accused
have no right of private defence of person is against
the evidence on record and perverse, erroneous and
not sustainable in the law. Trial Court committed error
in holding accused guilty for charges under Section
148 and 302 read with Section 149 I.P.C..
Prosecution failed to prove its case and accused are
entitled for acquittal. (Para - 24)

Criminal Appeal allowed. (E-7)

List of Cases cited:-

1. Satya Narain Vs St. Of Raj., (1997) 11 SCC 83

2. Jai Dev Vs The St. Of Punj., AIR 1963 SC 612

(Delivered by Hon'ble Syed Aftab Husain Rizvi, J.)

1. Heard Sri Sikandar B. Kochar, learned
counsel for the appellants and Sri Ajeet Ray,
learned A.G.A. for the State.

2. This criminal appeal has been filed
against the judgment and order dated 27.02.1982
passed by IV Additional Session Judge,
Muzaffarnagar in S.T. No 259 of 1981,
convicting
and
sentencing
the
appellant
Mahabir, Krishan Pal, Daulat, Topi, Ghasita, and
Dharma to 2 years rigorous imprisonment under
Section 148 and life imprisonment under Section
302 I.P.C. read with Section 149 I.P.C. Both the
sentences

3. In brief, the prosecution case is that on
10.03.1980 at about 10:15 a.m. a Case Crime
No.70 under Section 148, 149, and 302 I.P.C.
was registered at Police Station- Bhopa, District-
Muzaffarnagar on an application of Ram Gopal
dated 10.03.1980. It was alleged in the
application that to construct the houses for
weaker sections a unanimous resolution was
passed by the Gram sabha Wazirabad, for which
a meeting was held a month earlier and plots
were already allotted, 32 beneficiaries were
selected for the construction of houses and
Jagmohan was also included in it and his house
was also to be constructed. Jagmohan has laid
the foundation of his house, a day before. On
10.03.1980 at about 09 a.m. Jagmohan was
raising construction on the foundation. Co-
11 All. Mahabir & Ors. Vs. State of U.P.
517
villagers, Mahabir holding a Lathi, Krishan Pal
holding a Ballam, Daulat holding a Tabbal, Topi
holding a Ballam, Ghasita holding an axe, and
Dharma holding a Bhala in their hands came
abusing and started dismantling the foundation.
In the meantime, the brother of the complainant
Harnam also reached the spot. Harnam and
Jagmohan both forbade the accused from
abusing
and
dismantling
the
foundation.
Accused suddenly pounced upon Harnam and
started to beat him with the weapons in their
hands. Devi Sahai, Rehala Das, and Tilak Ram
tried to save Harnam but the accused continued
to beat him due to which Harnam suffered
serious injuries on his head, mouth, forehead,
neck, chest, and abdomen. Jagmohan and
Harnam also wielded lathi in defence. Harnam
became unconscious and fell down due to
injuries suffered by him and died on the spot. As
his body was warm he was taken to Government
hospital Morna in a horse carriage but the doctor
was not present there then he was carried to
Bhopa hospital where the doctor declared him
dead. The incident was narrated by Jagmohan to
the complainant and he has come to lodge the
report leaving the dead body of Harnam in the
horse carriage at Bhopa hospital and Jagmohan
is beside the dead body.

The investigation commenced and the
Investigating Officer on the same day recorded
the statement of the complainant and came to
Bhopa hospital, appointed S.I. Shyam Dhan
Gupta for inquest who conducted the inquest
proceedings and sent the body for post-mortem
examination. Investigating Officer recorded the
statements of other witnesses, arrested the
accused, and sent them to the police station.
Thereafter he searched the houses of the accused
and recovered a blood-stained lathi from the
house of accused Mahabir and a blood-stained
Tabbal from the house of the accused Daulat,
sealed it, and prepared its memo. Investigating
Officer also visited the place of occurrence and
prepared the site plan and collected bloodstained soil and plain soil and sent the articles
for
chemical
examination.
Thereafter
on
different dates recorded the statements of other
witnesses and after completion of investigation
submitted the charge sheet against all the six
accused persons named in the F.I.R. under
Section 147, 148, and 302 I.P.C.

4. The learned Trial Court framed charges
against the accused Mahabir, Krishan Pal,
Daulat, Topi, Ghasita, and Dharma under
Sections 148, 302 read with Section 149 I.P.C.
Accused pleaded not guilty and claimed for trial.
The prosecution produced eight witnesses who
have proved 15 papers as Ex.Ka-1 to 15 and 4
material exhibits. The statements of the accused
were recorded under Section 313 Cr.P.C. in
which they have denied the incriminating
evidence. Accused Dharma has said that he was
not present on the spot. Accused Ghasita, Topi,
and Krishan Pal have said that Ram Gopal,
Jagmohan, Rati Ram, and Tilak Ram were
forcibly trying to take possession of the land of
Hargyan and when it was objected, they
assaulted them and Hargyan with lathi and
Tabal. The accused also wielded lathi in
defence. Accused Mahabir has stated that he was
not present on the spot. He went to the police
station to lodge a report with Krishan Pal and
others, but were detained there. Two defence
witnesses Dr. S.R. Rayal DW-1 and Dr. D.C.
Mubar DW-2 have been examined. The learned
Trial Court by the impugned judgment has held
all the accused guilty for charges under Section
148, 302 read with Section 149 I.P.C.

5. Learned counsel for the appellants
contended that Ram Gopal the brother of
complainant and deceased was Pradhan of Goan
Sabha Wazirabad and he illegally allotted a plot
to his brother Jagmohan. This allotment was
cancelled but Jagmohan and his brothers were
trying to forcibly take possession of the disputed
land and raised construction on it, when objected
by the accused and Hargyan they assaulted them
518 INDIAN LAW REPORTS ALLAHABAD SERIES
with lathi and tabbal causing grievous injuries.
The accused also defended themselves and in
exercise of such right injuries were caused to
Harnam causing his death. The act of the
accused are covered by the right of private
defence of person. The complainant party has no
right of private defence of property as they have
no right or title on the disputed land. The learned
trail Court has failed to appreciate the evidence
in its right perspective and findings recorded by
it are erroneous and bad in law. Learned counsel
for the appellants further contended that accused
Dharma, Daulat and Mahabir were not present at
the time of occurrence and they have been
falsely implicated. They have gone to police
station with injured accused Krishna Pal, Topi
and Ghasita and other injured Hargyan to lodge
the report but they were detained at the police
station. The report was not lodged and after
registration of the F.I.R. of the complainant the
report of the accused was lodged. The accused
persons are liable to be acquitted.

6. Learned A.G.A. contended that the
disputed land was allotted to Jagmohan in 1972
and he has taken possession of it and constructed
a hut on it. Jagmohan was in possession of the
disputed land and one day before the incident he
has laid the foundation of his house. At that time
no objection was raised by the accused. At the
time of incident when Jagmohan with Manson
and labourers was at the site to construct the
walls on the foundation, the accused persons in
pre-planned manner armed with deadly weapons
came on the spot and started to dismantle the
foundation
and
assaulted
Harnam
and
Jagmohan. Harnam suffered serious injuries in
this assault and died on the spot. The accused
persons have no right of private defence and
they are aggressors. The learned trial Court has
fully discussed and appreciated the entire
evidence on record and findings recorded by it is
proper and there is no illegality or perversity in
it. The appeal is liable to be dismissed.

7. Post-mortem of Harnam (deceased) was
conducted on 11.03.1980 at 12:30 p.m. by Dr.
Pramod Kumar. According to the post-mortem
report Ex.Ka-12 age of the deceased was 32
years, average built body, rigor mortis was
present in both upper and lower extremities,
eyes closed, mouth half-open.

Following antemortem injuries were
found on the body of the deceased:-

1. Lacerated wound 1 1⁄2" x 3⁄4" x bone
deep on left eye brow.

2. Lacerated wound 1⁄2" x 1⁄4" x muscle
deep on left eye outer angle.

3. Incised wound 2 1⁄2" x 1⁄2" x bone
deep present on left side head, 21⁄2 above the left
ear, direction anterio posterior, underlying bone
was fractured. Margins contused.

4. Incised wound 1 1⁄2" x 1⁄2" x bone
deep present on left of head mid line
anteroposteriorly
placed,
margins
contused.

5. Incised wound 1⁄2" x 1/4" x scalp
deep present on left side head at hair line
anteroposteriorly placed, 3" above the left eye
brow.

6. Incised wound 1/2" x 1⁄4" x scalp
deep present on left side head, 1⁄2" below and
parallel to injury no. (5)

7. Lacerated wound 1⁄2" x 1⁄4 x muscle
deep on left side back of about 1" left to the mid
line at the level of the inferior angle of the
scapula.

8. Abrasion 5" x 1 1⁄2" on back of right
side chest just below the inferior angle of the
scapula (Rt)
11 All. Mahabir & Ors. Vs. State of U.P.
519

9. Punctured wound 1⁄2" x 1⁄4" x chest
cavity deep present on the left front of the chest
at Costo sternum junction of 5th rib, junction is
cut-The injury direction directly backward.

10. Punctured wound 1⁄2" x 1⁄4" x chest
cavity deep present on the left front of chest just
below the middle of left clavicle, direction-
directly backward.

11. Lacerated wound 1⁄2" x 1⁄4 " x
muscle deep on front of left abdomen 31⁄2 away
at 1' O clock position to umbilicus, direction
Horizontal.

12. Lacerated wound 1⁄2" x 1⁄4" x bone
deep on the outer aspect of left forearm 1⁄2 above
left wrist, direction horizontal.

13. Lacerated wound 1" x 1⁄4" on front
of Right leg-(bone deep), 3" below Right knee.

In the internal examination, the left parietal
bone was fractured under injury no.3, a small
external haematoma on the left side of the
cerebrum. Left Pleura contains 6 oz blood, left
lung was punctured under injury no.10. The
pericardium was punctured and 2 oz blood was
there. The left ventricle of the heart was
punctured under injury no.9 and the heart was
empty. In the stomach semi-digested food, large
Intestine faecal matter and gases were present.
The small intestine was empty. Gall Bladder was
half full and the bladder was full.

The cause of death was shock and
haemorrhage due to ante-mortem injuries and
the duration was about one day.

Dr. Pramod Kumar in his statement
has stated that the death may have occurred on
10.03.1980 at 09 a.m. and all the injuries were
sufficient in the ordinary course of nature to
cause death. Lacerated wounds were possible
from lathi while incised wounds were possible
from Tabbal and axe. Injuries no. 9 and 10 were
possible from Ballam and abrasions were
possible from fiction or from fall on the ground.
Witness has also confirmed that injuries no. 3
and 4 may be caused by Tabbal Ex.-2/1.

8. Prosecution to prove its case has
produced 8 witnesses, out of which 3 are public
witnesses. Ram Gopal is the informant but he is
not an eyewitness. The Incident was narrated to
him by his brother Jagmohan and on this, he
wrote the application and lodged the report. The
witness in his examination-in-chief has said that
he is Pradhan of Wazirabad since 1972. He has
made allotment of Gram Samaj land and has
also allotted one plot measuring 154 squareyards to his brother Jagmohan in the village
Abadi. Jagmohan has deposited Rs.50/- for its
value and a receipt dated 30.12.1972 was issued
to him under his signature. The witness has
proved this receipt as Ex.Ka-1. Witness has
further stated that after this allotment Jagmohan
was in possession of this plot and he constructed
a hut on the said plot. In 1980 under the
Government Scheme, the houses for weaker
sections were to be constructed on such plots,
and an amount of Rs.1,570/- was fixed for each
house. One month before the incident, a meeting
of Goan Sabha was held in which B.D.O.,
A.D.O. (A.G.), Gram Sevak, Secretary and he
himself were present and it was decided to
construct houses for 32 families whose income
were less than Rs.2,000/- per annum. The
resolution was written in the register. He has
filed the original register and proved it as Ex.Ka2. Witness has further stated that the khasra
number of Jagmohan's plot is 541 and the total
area is 3 bigha, 1 biswa, 5 biswansi and in
Khatauni it is entered as Harijan Abadi.
Narrating the other allegations of the F.I.R.
witness has proved the F.I.R. as Ex.Ka3.
Witness has further stated that Sub-Inspector
came into the village on the day of the incident
and in his presence, the houses of Mahabir and
Daulat were searched. One lathi with blood
stains was recovered from the house of the
520 INDIAN LAW REPORTS ALLAHABAD SERIES
Mahabir and one Tabbal with blood stains was
recovered from the house of Daulat. SubInspector prepared its memo exhibits Ka 4 and
5. Witness has proved its signature on it and
pieces of lathi and tabbal as exhibits 1/1 to 1/4
and 2/1 to 2/3.

9. Jagmohan is the eyewitness. In his
examination-in-chief the witness has stated that
Harnam was his real brother. 8 years earlier a
plot of 154 square yards (14 yards in length and
11 yards in width) was allotted to him by the
Gram Samaj in village Wazirabad. He has taken
possession of the land after 10-15 days of the
allotment and constructed a hut on it. The wall
of the hut was of bricks with a thatched roof. A
meeting of B.D.O., A.D.O. (A.G.), Gram Sevak,
and others was held in which it was decided that
an amount of Rs.1,500/- will be given to each of
30-32 families for construction of the houses.
His name was also included in the list of
beneficiaries. A day before the incident he laid
the foundation and wanted to construct one room
and verandah on it. On the day of the incident at
9 a.m., he with Devi Sahai Mason, Rulha, and
Tilak Ram was on the site to erect walls.
Suddenly Mahabir, Daulat, Krishan Pal, Topi,
Ghasita, and Dharma came there. Mahabir was
holding a Lathi, Krishan Pal holding a Ballam,
Daulat holding a Tabbal, Topi holding a Ballam,
Ghasita holding an axe, and Dharma holding a
Bhala in their hands. They started abusing and
said that they will not permit the construction of
the house there and started to dismantle the
foundation. In the meantime, Harnam also came
there. He was holding a lathi. Harnam asked
them why they are dismantling the foundation.
Accused said that he will be taught a lesson and
killed. All the accused with the weapons in their
hands started to assault Harnam. He and Harnam
wielded lathi in their defence. He did not suffer
any injury. Harnam suffered several injuries.
Receiving injuries and moving back Harnam fell
down on the way in the north of well. Devi
Sahai, Daulat Ram, Rulha also saw the incident.
He went to his brother Ram Gopal and narrated
the incident, then he and Ram Gopal came on
the spot. As the body of Harnam was warm but
he was not talking, they carried him to Morna
hospital in a horse carriage where the doctor was
not present, then he was carried to Bhopa
hospital where the doctor examined him on the
horse carriage itself and declared him dead.
From there Ram Gopal went to lodge the report.

10. Devi Sahai P.W-3 is also an
eyewitness. In his examination-in-chief, the
witness has said that he has gone on the plot of
Jagmohan in village Wazirabad for mason work
with Rehla Das and Tilak Ram the two
labourers. This plot is near the houses of the
accused and there is one public well in the north
of this plot. On 09.03.1980 he has laid one feet
high foundation beneath the ground. On the next
day at about 8:30 a.m. they reached at the site.
Jagmohan was also there. The foundation was
constructed by Jagmohan. The incident is of
10.03.1980. The construction work was about to
start. Mahabir holding a Lathi, Krishan Pal
holding a Ballam, Daulat holding a Tabbal, Topi
holding a Ballam, Ghasita holding an axe, and
Dharma holding a Bhala in their hands came and
prevented Jagmohan from construction work.
Jagmohan said he will certainly construct his
house, then the accused started abusing. In the
meantime, Harnam holding a lathi came there
and he also abused and said that they will
construct the house. The accused started to
assault. Before the arrival of Harnam accused
have dismantled the foundation. Harnam and
Jagmohan beat the accused with lathi. Jagmohan
did not suffer any injury. Harnam died on the
spot due to injuries. Harnam when assaulted fell
moved back down on the way near the well
where blood oozed out and spilled on the
ground.

11. B.M. Mishra, S.O. PW-8 is the
Investigating Officer. In his examination-inchief, he has stated that on 10.03.1980 he started
11 All. Mahabir & Ors. Vs. State of U.P.
521
the investigation of this case, recorded the
statements of the complainant and constable
Prakash Chandra. He reached Bhopa hospital
and directed S.I. Shyam Dhan Gupta to conduct
inquest proceedings. He visited the place of
occurrence and raided the houses of the accused
and arrested them and sent them to the police
station through S.I. Surendra Singh. Then he
recovered a blood-stained lathi from the house
of Mahabir and a blood-stained tabal from the
house of Daulat and prepared its memo. He
visited the place of occurrence and prepared the
site plan and collected blood-stained and plain
soil from the place of occurrence in two separate
containers and prepared its memo and sealed it.
Recorded the statement of other witnesses, and
sent the materials for chemical examination and
after completion of investigation submitted the
charge sheet. The witness has proved all the
papers as Ex.Ka-4, Ka-5, and Ex.Ka-13 to Ka-15
and material exhibits 1/1 to 1⁄4, 2/1 to 2⁄3, and 3
and 4.

12. Remaining witnesses are formal in
nature. Constable Dharmvir PW-4 has carried
the dead body for post-mortem after the inquest
proceedings and has proved the same from his
statement. Constable Prakash Chandra PW-5 is
the Chik and G.D. writer and he has proved both
the documents as Ex. Ka- 6 and 7. He has also
proved the G.D. entry of arrest of accused as
Ex.Ka-8. S.I. Shyam Dhan Gupta PW-6 has
conducted the inquest proceeding and prepared
related papers. Witness has proved the inquest
report and related papers as Ex.Ka-9 to Ex.Ka11.

13. The prosecution version is that at the
time of the incident Jagmohan, the brother of
complainant Ram Gopal and deceased Harnam
was on the site for the construction of his house.
The foundation was laid one day before. The
accused
persons
armed
with
sharp-edged
weapons and lathi came there and started
abusing and dismantling the foundation. In the
meantime, Harnam, the brother of Jagmohan
holding a lathi came there. Harnam and
Jagmohan both prevented the accused from
dismantling the foundation. Suddenly the
accused with weapons in their hands attacked
and severely beat Harnam who after receiving
serious injuries fell down on the way in the north
of the well and died. It is also the prosecution
version that Jagmohan and Harnam wielded lathi
in defence causing injuries to accused Topi,
Krishan Pal, and Ghasita. From the material on
record it also appears that there is a crossversion and according to defence Ram Gopal,
Jagmohan, Harnam, Rati Ram and Tilak Ram
wanted to forcibly occupy the land of Hargyan
and when it was objected, they assaulted Topi,
Ghasita, Krishan Pal and Hargyan with lathi and
tabal. The aforesaid accused wielded lathi and
Ballam in self-defence. Mahabir, Daulat, and
Dharma were not present on the spot. The
injured accused and Mahabir and Hargyan went
to the police station to lodge a report but they all
were detained and their report was not registered
at that time and after lodging the F.I.R. of the
complainant ante-time, the report of the accused
was lodged.

14. From the accused side, two witnesses
have been examined. Dr. R.S. Ruyal DW-1 has
examined the injuries of Hargyan, Topi, Krishan
Pal, and Ghasita and according to the medical
examination report of Hargyan Ex.Kha-2 his
medical
examination
was
conducted
on
10.03.1980 at 2 p.m. and he was brought by
Constable Rohtash Singh, police out postMorna,
Police
Station-
Bhopa,
District-
Muzaffarnagar. Following injuries were found
on his body:-

1. Abrasion (unscabbed) 2 cm x 1 cm
on the back of the left wrist.

2. Lacerated wound 2 cm x 0.5 cm x
skin deep on back and root of left middle finger,
obliquely placed. Bleeding on touch.
522 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Abrasion (unscabbed) 0.5 cm x 0.5
cm on back and root of the left index finger.

4. Abrasion(unscabbed) 0.5 cm x 0.5
cm on back and root of the left ring finger.

5. Tender swelling 7 cm x 6 cm on top
of the left shoulder (outer half of left collar
bone).

All injuries were simple in nature
except injury no. (5) which was kept under
observation and advised X-Ray in both views.

Object-Blunt, except injury no.1, 3,
and 4 which were caused by friction against a
rough surface. The duration was fresh.

Accused
Topi
was
medically
examined on 10.03.1980 at 02:30 p.m. and
according to his medical examination report
Ex.Kha-3, the following injuries, were found on
his body:-

1. Lacerated wound 2.5 cm x 0.5 cm x
skin deep on the left eyebrow, obliquely placed.
Bleeding on touch.

2. Abraded contusion (Unscabbed and
red) 4cm x 2 cm in front of chest Rt. Side at 4'O
clock position, 8 cm from Rt. Nipple.

3. Abraded contusion (unscabbed and
red) 5cm x 1cm on outer left forearm just above
the left wrist, with swelling 6 cm x 4 cm around
it.

4. Abrasion (Unscabbed) 5 cm x 2 cm
on the back of the left forearm, 2 cm above
injury no.3.

5. Three abrasions (unscabbed) 5cm x
0.5 cm: 5cm x 0.5 cm and 1 cm x 1cm
respectively on middle joints and outer surface
of Rt. Index finger, middle finger, and right little
finger.

All injuries were simple in nature
except injury no.3 which was kept under
observation and advised X-ray in both views.

All injuries were caused by blunt
objects except injuries no.4 and 5 which were
caused by friction against a rough surface.

All injuries were fresh in duration.

Accused Krishan Pal was medically
examined on 10.03.1980 at 3 p.m. and according
to his medical examination report Ex.Kha-4, the
following injuries, were found on his body:-

1. Lacerated wound 4 cm x 0.5 cm on
left side top of the head, 13 cm above left ear,
obliquely placed. Bleeding on touch.

2. Abrasion (Unscabbed) 3 cm x 2 cm on
front and outer of the left knee, 3 cm from left tibial
tuberosity.

Complaint of pain Rt. Knee and back but
no visible injury was there.

Nature-Simple.

Object- Injury No.1 caused by a blunt
object and No.2 by friction against a rough surface.

Duration-Fresh.

Accused
Ghasita
was
medically
examined on 10.03.1980 at 3:30 p.m. and
according to his medical examination report
Ex.Kha-5, the following injuries, were found on
his body:-

1. Incised wound 3cm x 0.5 cm x bone
deep on Rt. Side forehead, 5 cm above Rt.
Eyebrow, obliquely placed. Margins of the
11 All. Mahabir & Ors. Vs. State of U.P.
523
wound were clean-cut and no tailing was there.
Bleeding on touch.

2. Lacerated wound 3cm x 1m x scalp
deep on Rt. side head, 7cm above the right ear.
Bleeding on touch.

3. Incised wound 3cm x 1cm x bone
deep on outer par of left elbow joint,
transversely placed. Inj. back to front direction.
Margins of the wound were clean-cut and the
wound was continual with 3 cm x 11 near
abrasion at its anterior part. Bleeding on touch.

4. Abraded contusion (unscabbed and
red) 9 cm x 3 cm on the back and middle 1/3rd
of Rt.forearm, obliquely placed, 13 cm x 8 cm
swelling around it.

Complaint of pain left shoulder left
forearm and left leg but no visible injury was
there.

All injuries were simple in nature
except injury no.4 which was kept under
observation and advised X-Ray in both
views.

Injuries No.1 and 3 were caused by a
sharp-edged weapon and No.2 and 4 by a blunt
object.

All injuries were fresh in duration.

Dr. R.S. Rayal DW-1 has proved the
aforesaid medical examination report as Ex.
Kha- 2 to Ex. Kha- 5.

Dr.
D.K.
Mubar
DW-2
in
his
examination-in-chief
has
stated
that
on
17.03.1980 the X-Ray of the left shoulder of
Hargyan was conducted under his supervision
and a fracture of the collar bone was detected.
The witness has proved the X-Ray report as
Ex.Kha-6 and X-Ray plate.

15. So, the date and time and place of
occurrence are admitted. What is to be judged is
that who are aggressors and whether accused
Dharma, Daulat, and Mahabir were involved in
the incident or not and the presence of Hargyan
at the time of occurrence.

16. It is cardinal principle of law that in
criminal cases primarily it is the duty of the
prosecution to prove its case beyond reasonable
doubt. The burden is on the prosecution alone
but when there are two versions of the parties
about the same occurrence the Court cannot
loose the sight of either of them and has to
consider both the versions in order to come to a
conclusion as who was the aggressor and what
was the real genesis of occurrence. The accused
are not required to prove their case to the hilt
like the prosecution, but it is to be seen if the
defence version is probable.

17. Admittedly, Ram Gopal, the brother of
Jagmohan and Harnam (deceased) was Pradhan
of Goan Sabha Wazirabad. In his crossexamination, Ram Gopal PW-1 has said that he
remained suspended in 1976 for three months in
relation to the allotment of land made by him in
1972. He has further admitted that a case was
also filed to cancel the allotments made by him
and allotments made by him were cancelled by
the S.D.M. An appeal was filed before the
Collector and the Collector cancelled some of
the allotments. He has further said that in the
order of Collector it was not made clear that
which of the allotments were cancelled and
which were not. He has given an evasive reply
in this respect but has not specifically denied
that allotment of Jagmohan was not cancelled by
the Collector. So from the statement of Ram
Gopal PW-1 the then Pradhan of Goan Sabha
Wazirabad, it is clear that allotment made in
favour of the Jagmohan was cancelled and there
was no valid allotment in favour of Jagmohan of
the disputed land so Jagmohan has no right in
respect of the disputed land. Further prosecution
524 INDIAN LAW REPORTS ALLAHABAD SERIES
has also filed a receipt of allotment dated
30.12.1972 Ex. Ka-1. In this receipt, the
particulars of the land allotted to Jagmohan is
described as 11x14 yards, 154 sq. yards of land
from Khasra number 541, boundaries of which
are East- Ram Ratan, West- public way, North-
well of Harijans, and south- Rasta. The
boundaries as mentioned in this receipt do not
match with the boundaries of the disputed plot
as shown in the site plan Ex. Ka-13. In the site
plan Ex. Ka-13 in the west vacant land of Plot
No. 542 and in the South Plot No. 543 having a
wheat crop are shown and there is no Rasta
either in the west or in the south as mentioned in
the receipt Ex. Ka-1. Further, the public way
(Khadanja) is situated in the west of vacant Plot
No. 542 in the site plan exhibit Ka-13. So the
description of the boundaries as mentioned in
the receipt Ex. Ka-1 does not tally with the spot
position and it is clear that the land allotted vide
receipt Ka-3 is not the disputed land and its
location is different. Jagmohan PW-1 in his
cross-examination could not tell the Khasra
numbers of the lands allotted by him. He has
also said that he does not remember whether any
map was prepared by the Lekhpal. Plots were
not marked on any paper. He has also said that
some area of this plot was allotted earlier and the
remaining area was allotted to Jagmohan and
others. He has further said that he has pointed to
the I.O., the land where Jagmohan has laid the
foundation. Adjacent to it in the west there is
Khasra No. 542 and rasta is in the west of
Khasra No. 542 and in the South adjacent to it
there was a wheat field at the time of
occurrence. The oral statement of Jagmohan
PW-1 also does not confirm the description of
boundaries as mentioned in the receipt of
allotment Ex.Ka-1. The learned trial court has
not considered the fact that allotment made in
favour of Jagmohan was cancelled and there was
no valid allotment of the disputed land in favour
of Jagmohan. The learned trial court has also
failed to appreciate that the description of the
land allotted as mentioned in the receipt exhibit
Ka-1 does not match with the disputed land. The
learned trial court has misread the evidence
regarding the boundaries and has failed to
properly appreciate it. The learned trial court has
presumed the possession of the complainant
party on the disputed land on the grounds that
after allotment Jagmohan has constructed a hut
on it and further that Jagmohan has laid the
foundation on the disputed land one day before
the incident and since Jagmohan was in
possession of this land the accused had no right
to disturb his possession or to use force against
him. These observations of the learned trial
court are not justified. Jagmohan PW-2 in his
cross-examination has said that 4-5 days before
the incident he has removed the hut and has
thrown the bamboo and straws in the ditches but
no sign or remains of any hut has been found on
the spot by the investigating officer. The
disputed land is in form of an open land and is
situated near the houses of the accused persons.
Since there was no valid allotment in favour of
Jagmohan, they have no right or title on disputed
property. It appears that the complainant party
was trying to forcibly occupy the disputed land
and raised construction on it. So their position
was that of a trespasser. No settled possession
can be presumed in favour of the complainant
party just because foundation was laid one day
before the incident. So from material on record,
the defence version that the complainant party
was forcibly trying to occupy the land got
established and in such a situation the right of
private defence of property will not be available
to the complainant party. The learned trial Court
has erred in holdings that complainant party has
right of private defence of property.

18. From the evidence on record, it also
stands proved that it was complainant party who
first started the assault. Devi Sahai PW-3 the
independent witness in his cross-examination
has said that labourers have prepared the gara
when accused persons came there and prevented
Jagmohan
from
the
construction
work.
11 All. Mahabir & Ors. Vs. State of U.P.
525
Jagmohan said that he will construct his house
then both the parties started abusing each other.
Meanwhile, Harnam holding a lathi came there
and abused and said that he will certainly
construct the house. The witness has further said
that before arrival of Harnam the accused started
to remove the bricks then Jagmohan and Harnam
assaulted the accused with lathi. The witness on
another place has also said that Jagmohan has
also abused the accused and when the parties
were abusing each other then Harnam said that
he is ready with a lathi and at the time Jagmohan
has also picked up a lathi. The witness has also
said that when accused were removing the bricks
then Jagmohan and Harnam started to assault the
accused with lathi. As soon as the accused
started to remove the bricks Jagmohan and
Harnam started to assault the accused. The
withness has further said that Jagmohan and
Harnam have assaulted the accused for 15
minutes while they remain indulged in removing
the bricks of the foundation. When all the bricks
were taken out from the foundation then accused
started to assault. From the above statement of
the witness, it is clear that both the parties were
abusing each other and when accused persons
prevented
the
complainant
party
from
construction work and started to remove the
bricks of the foundation complainant party
started the assault. So the genesis of the
occurrence is that the complainant party with
Devi Sahai Mason and two laboures came on the
spot to raise construction on the disputed land.
The accused came there and objected. Both the
parties indulged in abusing each other. Accused
in order to prevent the complainant party from
raising construction started to remove the bricks
from the foundation then complainant party
started to assault them. From the evidence on
record, it is also established that from the
accused side Topi, Krishna Pal, and Ghasita
have suffered visible injuries. Accused Topi has
one lacerated wound on the head, one contusion
on the chest, two contusions on the four arms,
and three abrasions on the fingers while accused
Krishna Pal has suffered one lacerated wound on
the head and one abrasion on the left knee and
accused Ghasita has suffered one incised wound
on the forehead above right eyebrow, one
incised wound on the left elbow joint and one
lacerated wound on the head and one contusion
on the right forearm. The injuries no. 1 and 3 of
the accused Ghasita are incised wounds and
according to the opinion of the doctor, these
injuries have been caused by sharp-edged
weapons.

19. The defence version is that the
complainant party tried to forcibly occupy the
land of Hargyan when objected assaulted
Hargyan, Krishna Pal, Topi and Ghasita with
lathi and tabal. This defence version also gets
support from the medical evidence on the
record. Besides the three accused persons,
Hargyan also has visible injuries. According to
his medical examination report Ex.Kha-2 five
visible injuries one abrasion on the left wrist,
one lacerated wound on the middle finger, two
abrasions on the fingers and tender swelling on
top of the left shoulder were found on the body
of Hargyan and in the opinion of the doctor the
duration of injuries was fresh. Injury no. 5 was
kept under observation and X-Ray was advised.
According to the X-Ray report Ex. Kha-6
fracture of clavicle bone was detected. It is also
pertinent to mention that Hargyan was taken for
medical examination by the police constable
Rohtas Singh along with the other injured
accused persons and it is mentioned in the G.D.
No. 28, of 10.03.1980 at 13.00 p.m. He was
medically examined along with injured accused
persons by the same doctor at 2 P.M. and his
injuries have been found fresh in duration which
corresponds to the time of occurrence.