1. On 6-4-1974 at about 8.30 a.m., a grave rioting took place near a field situated in village Bhuma within the limits of Miranpur Distt. Police Station during the course of which, one Raja Ram died and some others received injuries on the prosecution side and two persons died on the side of the accused and some others also received injuries. A report was given to the police and five accused were tried, by the trial Court for offences punishable under Sections 147, 148, 302 read with 149 and 307 read with 149 Indian Penal Code. The trial Court convicted four of them, original accused Nos. 1 to 4 and acquitted Santar Pal, the 5th accused. The four convicted accused preferred an appeal to the High Court but the same was dismissed. Hence, the present appeal.
2. The prosecution case is as follows :
Kabool Singh, Bhagel, Shittal and Smt. Vidyawati were co-tenure holders of a piece of land in that village. The share of Vidyawati was to the extent of 1/4th. She was married in a village situated in the district of Meerut. She instituted a suit for partition. The other co-sharers accepted that she had 1/4th share. A preliminary decree was passed on 19-12-72. On the basis of that decree, Vidyawati transferred her 1/4th share in favour of Govind (A-2), Dharampal (A-l) and Sarni - sons of Ami Chand on 14-6-73. Thereupon the transferees, namely, the accused and their associates moved an application in the partition suit for being substituted as legal representatives of Vidyawati. They also prayed that a final decree may be passed. While the matter was still pending before the Revenue Court, Sarni s/o Ami Chand made an application to the Supdt. of Police praying that the recorded co-sharers of the holding were not permitting them to enjoy their own 1/4th share and they were intending to resort to violence. On the basis of that petition, proceedings under Sections 107 and 117, Cr. P.C were sought to be initiated against the prosecution party. While so, the present incident took place. According to the prosecution, the deceased in this case, PW-1 and the rest were preparing to cut crops and the accused armed with lathis and guns went there to stop them; that resulted in a clash resulting in the death of Raja Ram and four other persons receiving injuries, out of which two are examined as eye-witnesses. On the side of the accused Sarni and his father Ami Chand received gun shot injuries and died and four others received injuries. It appears both cases were investigated. We are concerned with the Sessions Trial No. 398-A of 1974 in which the present appellants were tried for offences as mentioned above.
3. The Doctor, who conducted the post mortem on the dead body of Raja Ram, found three gun-shot wounds and some incised wounds. On internal examination, he found lungs and pericardium are lacerated and some ribs were fractured and he opined that the death was due to those fatal injuries. The Doctor also examined the injured per sons Bhagel, Kabool, Bhundia and Madan. The Doctor also conducted the post-mortem on the dead bodies of Sarni and his father, Ami Chand belonging to the accused party and the Doctor found number of gun-shot injuries and incised wounds on their bodies. The Doctor also examined Govind (A-2) and others who received injuries.
4. The accused pleaded not guilty and stated that the deceased party was the aggress sor and they opened fire and caused the death of Sarni and his father Ami Chand and also caused injuries to the accused.
5. Both the Courts have held that the prosecution party being the co-sharers, had' the right to harvest etc. and at that stage the accused had no right since the final decree was not yet passed. In that view of the matter, the Courts held that the accused party was the aggressor and accordingly convicted them. The trial Court, however, acquitted Santar Pal (A-5) giving him the benefit of doubt. The High Court confirmed the findings of the trial Court.
6. Shri U. R. Lalit, learned senior counsel for the appellants submits that the accused also had right to the land by virtue of the transfer of the piece of land effected by Vidyawati and, therefore, their mere going to the field by itself did not give any right to the prosecution party to attack them and kill two persons and cause injuries to their party. The High Court having considered this aspect observed that though it is true that the damage done to the lives on the side of the accused, is greater but in view of the fact that they went to the field armed with weapons to which land they had no right and it would show that they were the aggressors and consequently they must be held guilty.
7. In a case of this nature, the question of right of private defence assumes importance. While it is the case of the prosecution that the accused party started attacking first, the case of the accused is that they just went to the field to see that the crops are not harvested and the prosecution party in an aggressive manner attacked them. One important circumstance is that the accused went to the field armed with weapons. There is every possibility of the prosecution party entertaining a reasonable apprehension that in such a situation the accused party was likely to attack them, so they had right to defend their party and persons but having regard to the fact that the accused party suffered greater casualties, the Court has to see whether the accused to that extent at one stage while defending them selves could attack the prosecution party. In such a situation a clear case of common object to cause the death of deceased who belonged to the prosecution party is not made out. It cannot be ruled out that they might have done so in the act of protecting themselves since the prosecution party while exercising their right were causing greater damage than what was necessary. In such a situation we think it is difficult to hold that the accused party was liable under Section 302 read with Section 149, I.P.C. It is highly doubtful that all the ingredients of such an offence are made out since their acts of protecting themselves to that extent would make it one amounting to culpable homicide. For these reasons, we think the offence committed by the accused would be one punishable under Section 304, Part I, I.P.C. Accordingly, we set aside the conviction of the appellants under Section 302 read with Section 149, I.P.C. and the sentence of imprisonment for life awarded there under. Instead we convict the appellants under Section 304, Part-I, I.P.C. But having regard to the circumstances that two persons died on their side and several people received injuries, we award a sentence of five years. The accused are also convicted under Section 307 read with Section 149, I.P.C. The conviction is confirmed but the sentence is reduced to three years. Their conviction under Section 148, I.P.C. and the sentence of two years' rigorous imprisonment are, however, confirmed. All the sentences shall run concurrently. The accused, who are on bail, shall surrender and serve out the sentence.
8. The appeal is disposed of accordingly.