PETITIONER:
RAM RATTAN AND ORS.
Vs.
RESPONDENT:
STATE OF UTTAR PRADESH
DATE OF JUDGMENT26/11/1976
BENCH:
FAZALALI, SYED MURTAZA
BHAGWATI, P.N.
KRISHNAIYER, V.R.
CITATION:
1977 AIR 619 1977 SCR (2) 232
1977 SCC (1) 188
ACT
Indian Penal Code, S. 441, on accomplishment of posses-
sion of property by trespasser, whether trite owner entitled
to disposses him and plead right to private defence.
HEADNOTE
The complainant Ram Khelawan had illegally encroached
upon a portion of a public road and grown a paddy crop on
it. A complaint against him was pending before the Panchay-
at. He was in peaceful possession of the land to the knowl-
edge of the appellants who nevertheless went armed and tried
to exercise their right over the public road, by passing
through the field with their cattle and thereby damaging the
crop. The complainants protested and a fight ensued, as a
result of which, one of the complainants’ party died and
injuries were received by both sides. The appellants plead-
ed the right of private defence of property and person,
which they had exceeded, but were concurrently found guilty
by both, the Trial Court and the High Court.
Dismissing the appeal the Court,
HELD: (1) A true owner has every right to dispossess or
throw out a trespasser while he is in the act or process of
trespassing but this right is not available to the true
owner if the trespasser has been successful in accomplishing
his possession to the knowledge of the true owner. In such
circumstances the law requires that the true owner should
dispossess the trespasser by taking recourse to the remedies
under, the law. [235 F-G, 236 A]
Puran Singh & Ors. v. State of Punjab [1975] Supp. S.C.R.
299, applied.
The Court further observed:
It is a peculiar feature of our criminal law that where
a trespasser has succeeded in taking recent wrongful
possession of the property vested in the public for common
enjoyment, the members of the village or the real owner are
not entitled in law to throw out the trespasser but have to
take recourse to the legal remedies available, and if any
member of the public tries to secure public property from
the possession of the trespasser he is normally visited
with the onerous penalty of law. [233 A-B]
(2) The complainant Ram Khelawan was in peaceful posses-
sion of the land to the knowledge of the appellants and he
was in law entitled to defend his possession. The appel-
lants who were the aggressors and had opened the assault,
could not claim any right of private defence either of
person or property. [237 A-B]
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 282
of 1971.
(Appeal by Special Leave from the Judgment and Order
dated 12-4-1971 of the Allahabad High Court in Criminal
Appeal No.. 1909/68).
S.K. Mehta, for the appellants.
D.P. Uniyal and O.P. Rana, for the respondent,
233
R.L. Kohli, for the Intervener.
The Judgment of the Court was delivered by
FAZAL ALI, J. It is a peculiar feature of our criminal
law that where a trespasser has succeeded in taking recent
wrongful possession of the property vested in the public for
common enjoyment, the members of the village or the real
owner are not entitled in law to throw out the trespasser
but have to take recourse to the legal remedies available,
and if any member of the public tries to secure public
property from the possession of the trespasser he is normal-
ly visited with the onerous penalty of law. This is what
appears to have happened in this appeal by special leave in
which the appellants appear to have got themselves involved
in an armed conflict with the prosecution party resulting in
the death of the deceased, injuries to some of the prosecu-
tion witnesses and injuries to three of the accused them-
selves.
The prosecution case in short is that on July 18, 1966,
at about 7-30 to 8-00 in the morning when Ram Khelawan and
his companions were removing weeds from the paddy crop sown
by them in the field which included a portion of the Chak
Road which had recently been encroached by the complainants’
party and amalgamated with their fields, Ram Ratan and Ram
Samujh armed with lathis and Din Bandhu and Ram Sajiwan
carrying a ballam and Biroo respectively entered the field
of Ram Khelawan with their bullocks and insited on passing
through the field along with their bullocks, which according
to them was a public road. The complainants protested
against the highhanded action of the party of the accused on
which Ram Ratan exhorted his companions to assault the
deceased Murli as a consequence of which Ram Sajiwan as-
saulted Murli in the abdomen with his Biroo as a result of
which MurIi sustained serious injuries and fell down in
the field and ultimately succumbed to the injuries. The
other members of the complainants’ party, namely, Ram Khela-
wan Manohar Sarabjit, Mewa Lal and Satrohan were also
assaulted by Ram Ratan and his party. Soon after the
occurrence Rameshwar Pathak, a police officer, who happened
to be present at the spot recorded the statement of P.W. 1
Ram Khelawan which was treated as the F.I.R. and after
conducting the usual investigation submitted a chargesheet
against all the accused persons who were put on trial before
the Sessions Judge, Barabanki. The Learned Sessions Judge
acquitted the accused Din Bandhu and convicted the appellant
Ram Sajiwan under s. 302 I.P.C. Ram Ratan and Ram Samujh
were convicted under ss. 326/34 I.P.C. and sentenced to
eight years’ rigorous imprisonment. Three appellants Ram
Ratan, Ram Sajiwan and Ram Samujh were further convicted
under s. 447 I.P.C. to three months’ rigorous imprisonment
and under ss. 324/34 I.P.C. to two years ’rigorous imprison-
ment under each of the two counts. and under ss. 323/34
I.P.C. to six months’ rigorous imprisonment and ordered that
all the sentences shall run concurrently. The accused
persons filed an appeal before the High Court of Allahabad
which was also dismissed and thereafter they obtained spe-
cial leave of this Court and hence this appeal before us.
234
The defence of the accused was that shortly before the
occurrence proceedings for consolidation of holdings had
taken place in the village as a result of which the Revenue
authorities provided a Chak Road which passed through plot
Nos. 853, 854, 864, 823 and 887. This Chak Road was meant
to boa public road to enable the. residents of the village
to pass through this road with their cattle. This road
happened to be adjacent to the field of Ram Khelawan P.W. 1
and he took undue advantage of the proximity of the road and
encroached upon the same and amalgamated it with his cultiv-
able field. The accused persons wanted t0 assert their
lawful right over the Chak Road and it was the prosecution
party which was the aggressor and started assaulting the
accused as a result of which three persons on the side of
the accused received serious injuries. The accused, there-
fore, assaulted the deceased in self-defence. Even other-
wise, the accused pleaded innocence.
Both the courts below have come to a concurrent finding
of fact that the occurrence took place as alleged by the
prosecution and that the accused persons were the aggressors
and had opened the assault on the deceased. The Trial Court
has also the High Court have concurrently found, on a full
and complete appreciation of the evidence., that although
the place of occurrence was a part of the Chak Road, yet the
complainant Ram Khelawan had encroached on the same and some
time before the occurrence had brought the land under culti-
vation over which he had grown paddy crop. The evidence of
the Sub-Inspector who visited the spot clearly shows that he
found paddy crop grown at the height of 4 or 6 digits. The
learned counsel for the appellants has not been able to show
that the concurrent finding of fact arrived at by the Ses-
sions Judge and the High Court on this point is in any way
not borne out by the evidence. The learned counsel for the
appellants submitted two points before us. In the first
place, he submitted that the finding of the High Court
impliedly shows that the accused were trying to, assert
their lawful right over the Chak Road which was wrongfully
occupied by the complainant and was in possession of the
villagers. The accused, therefore, had every right to throw
out the complainants’ party who were trespassers by force.
The accused were, therefore, acting in the exercise of their
right of private defence of person and property and were.
justified in causing the death of the deceased, particularly
in view of the serious injuries received by three of the
party of the accused. Reliance was placed, particularly on
the Injury Reports of Ram Samujh, Harnam and Ram Ratan. It
appears that Ram Samujh received two injuries one being a
lacerated wound 3 cm X 3/4 cm X 1 cm deep on the posterior
part of head and a contusion on the right side of the head,
while Harnam had four contusions and Ram Ratan had two.
lacerated wounds in the region of the ear, one punctured
wound in the left forearm and one contusion. It was
submitted that in view of the serious injuries, some of
which were inflicted by sharp-cutting weapons, it would
not be said that the appellants had exceeded their right of
private defence. The argument is no doubt attractive, but
on closer scrutiny we find that it is not tenable. In view
of the clear finding of the High Court and the Sessions
Judge that the land in dispute was in the settled possession
of the complainant Ram Khelawan
235
who rightly or wrongly encroached upon the road and convert-
ed it into his cultivable land the accused had no right to
throw the complainant by force. In fact the Sessions Judge
found thus:
"There is also no doubt that from the
evidence on record adduced by the prosecution
and the defence, it appears that the Chak
Road, if any was existing, was encroached upon
by Ram Khelawan and his family
members. .......... So far as the question
whether the Chak Road was encroached upon,
there was hardly any discrepancy between the
statements of the prosecution witnesses and
the defence. It has been admitted by Ram
Khelawan P.W. 1 that before the occurrence Ram
Rattan and several other villagers whose
Chaks are situated in the east of Ram Khelawan
Chak used to say that he had encroached upon
the Chak Road, and that in the absence of that
Chak Road, from where they should take their
bullocks to their Chaks.
...........From these admissions
also it is amply proved that in fact there was
a Chak Road but it was later encroached upon
by the complainant Ram Khelawan."
The High Court also found:
"It is thus clear that assuming that the
consolidation authorities had formed a Chak
Road adjoining the Chak of Ram KheIawan, it
had been taken possession of by Ram Khelawan
included in his Chak ploughed by him and paddy
crop had been sown therein. It is thus obvi-
ous that Ram Khelawan had established his
possession over the land where the incident
took place and had been in peaceful possession
thereof for 2 to 3 weeks at least before the
occurrence took place."
It is well settled that a true owner has every right to
dispossess or throw out a trespasser, while the trespasser
is in the act or process of trespassing and has not accom-
plished his possession, but this right is not available to
the true owner if the trespasser has been successful in
accomplishing his possession to the knowledge of the true
owner. In such circumstances the law requires that the true
owner should dispossess the trespasser by taking recourse to
the remedies available under the law. In view of the clear
finding of the High Court that the complainant Ram Khelawan
even after encroachment had established his possession over
the land in dispute for two to three weeks before the occur-
rence, for the purpose of criminal law, the complainant must
be treated to be in actual physical possession of the land
so as to have a right of private defence to defend his
possession even against the true-owner. While it may not be
possible to lay down a rule of universal application as to
when the possession of a trespasser becomes complete and
accomplished, yet, as this Court has indicated recently, one
of the tests is to find out who had grown the crop on the
land in dispute. In Puran Singh & Others v. State
236
of Punjab(1), this matter was comprehensively considered and
on of us (Fazal Ali, J.) who spoke for the Court observed as
follows:
"We, however, think that this is not
what this Court meant in defining the nature
of the settled possession. It is indeed
difficult to lay down any hard and fast rule
as to. when the possession of a trespasser can
mature into a settled possession. But what
this Court really meant was that the posses-
sion of a trespasser must be effective, undis-
turbed and to the knowledge of the owner or
without any attempt at concealment. For
instance a stray or a casual act of possession
would not amount to settled possession. There
is no special charm or magic in the word
’settled possession’ nor is it a ritualistic
formula which can be confined in a strait
jacket but it has been used to mean such clear
and effective possession of a person, even if
he is a trespasser, who gets the right under
the criminal law to defend his property
against attack even by the true
owner ................ Thus in our opinion
the nature of possession in such cases which
may entitle a trespasser to exercise the right
of private defence of property and person
should contain the following attributes:
(i) that the trespasser must be in
actual physical possession of property over a
sufficiently long period;
(ii) that the possession must be to the
knowledge either express or implied of the
owner or without any attempt at concealment
and which contains an element of animus pros-
sendie. The nature of possession of the tres-
passer would however be a matter to be decided
on facts and circumstances of each case;
(iii) the process of dispossession of
the true owner by the trespasser must be
complete and final and must be acquiesced in
by the true owner; and
(iv) that one of the usual tests to
determine the quality of settled possessions,
in the case of culturable land, would be
whether or not the trespasser, after having
taken possession, had grown any crop. If the
crop had been grown by the trespasser, then
even the true Owner has no right to destroy
the crop grown by the trespasser and take
forcible possession, in which case the tres-
passer will have a right of private defence
and the true owner will have no right of
private defence."
In this case there is a clear finding of the High Court
and the Sessions Judge that the complainant Ram Khelawan had
encroached upon the land in dispute, had converted it into
culturable field and had grown paddy crop which the com-
plainants’ party was trying to weed out on the day when the
occurrence took place. In these circumstances, therefore,
the complainant was undoubtedly in posses-
(1) [1975] Supp. S.C.R. 299.
237
sion of the land and the appellants had no right to commit
trespass on the land and engage the complainants in a seri-
ous fight. As the complainant Ram Khelawan was in peaceful
possession of the land to the knowledge of the appellants,
he was in law entitled to defend his possession. The com-
plainant, therefore, was fully justified in protesting to
the accused when they tried to pass through his field and
caused damage to the paddy crop by forcibly taking the
bullocks through the field. In these circumstances the
appellants who were undoubtedly the aggressors and had
opened the. assault could not claim any right of private
defence either of person or property. For these reasons,
therefore, we agree with the finding of the High Court that
the accused are not entitled to claim the right of private
defence, nor can it be said that in causing the murderous
assault on the deceased they had merely exercised their
right of private defence of property. It is true that the
appellants were trying to exercise their lawful right over a
portion of the land which had been left apart as a public
road for the use of villagers by the Revenue authorities,
but as a complaint had already been filed before the Pan-
chayat the appellant should have allowed the law to take its
course instead of taking the law in their own hands by
making an armed trespass into the property. However, there
can be no doubt that there was no common intention on the
part of all the accused to cause the death of the deceased
Murli or to cause grievous injuries to him which was an
individual act of the appellant Ram Sajiwan. The other
appellants Ram Rattan and Ram Samujh, therefore, cannot be
convicted under ss. 325/34 I.P.C.
Another point canvassed before us by counsel for the
appellant was that although three persons on the side of the
accused had sustained serious injuries, the prosecution has
not given any explanation which shows that the origin of the
prosecution is shrouded in mystery. This contention is also
without any substance. The evidence of the eye witnesses
examined by the prosecution clearly shows that some of them
were also armed with lathis and sharp-cutting weapons, and
they have also stated that they wielded their weapons when
the accused attached the complainants’ party and that this
was done in selfdefence. In view of the injuries on the
person of the deceased and the prosecution witnesses, name-
ly, Manohar, Sarabjit, Mewa Lal, Satrohan and Ram Khelawan,
there can be no. doubt that there was a mutual fight. Thus
in the instant case, the prosecution has given sufficient
explanation for the injuries sustained by the accused per-
sons and the prosecution case cannot be thrown out on this
ground.
Lastly it was submitted that so far as Ram Sajiwan was
concerned the evidence given by the eye witnesses regarding
the manner of the assault is inconsistent with the medical
evidence. In this connection reliance was placed by counsel
for the: appellants on the evidence of the Doctor which is
to the effect that the injury on the deceased Mufti was
undoubtedly caused by a Biroo but it could have been caused
only if the Biroo after being struck in the abdomen was
rotated. Much capital has been made out of this admission
made by the Doctor,but on a close scrutiny we find that this
circumstance is not sufficient
238
to put the prosecution out of court. There is clear and
consistent evidence of the eye witnesses that the deceased
had been assaulted in the abdomen and this fact has been
accepted by the two courts concurrently that the deceased
Murli was assaulted by Ram Sajiwan with a Biroo. The medi-
cal evidence clearly shows that the deceased had an injury
in the abdomen which could be caused by a Biroo. The exact
manner in which the Biroo was pierced in the abdomen of the
deceased could not have been observed by the witnesses,
particularly in view of the mutual fight. Since the injury
could be caused if the Biroo was rotated after being
pierced, it must be presumed in the circumstances that the
assailant must have rotated the Biroo after having pierced
it in the abdomen of the deceased, otherwise the injuries
could not have been caused to the deceased. In these cir-
cumstances, therefore, we are not able to agree with counsel
for the appellants that the assault on the deceased by Ram
Sajiwan is in any way inconsistent with the medical evi-
dence. For these reasons, therefore, we find ourselves in
agreement with the High Court that the prosecution has
proved its case against this accused beyond reasonable
doubt.
The injuries caused by the other appellants on the
person of Manohar, Sarabjit, Mewa Lal, Satrohan and Ram
Khelawan have been proved by the eye witness whose evidence
has been accepted by the High Court as also the Sessions
Judge.. We see no reason to interfere with the assessment of
the evidence by the two Courts.
The only point that remains for consideration is as to
the exact offence committed by the appellants. In the first
place, once it is held that the appellants had no right of
private defence of person of property, appellant Ram Sajiwan
cannot escape conviction under s. 302 I.P.C. simpliciter,
because the injury caused by him to the deceased was suffi-
cient to cause the death of the deceased. The appellant Ram
Sajiwan was rightly convicted under s. 302 I.P.C. and as the
minimum sentence is life imprisonment we cannot do anything
about the sentence either. We would like to observe, howev-
er, that the facts, of the case do raise some amount of
sympathy for the accused Ram Sajiwan who was really trying
to assert his lawful right against the complainant who was a
trespasser. The appellant was fighting for a just and
righteous cause though not in a strictly lawful manner. If
the appellant had succeeded he would have been able to
secure the right over the Chak Road which was left by the
Revenue authorities for the benefit of the villagers. These
considerations, therefore, may weigh with the Government for
considering the question of remitting a portion of the
sentence imposed on the appellant Ram Sajiwan and the
learned counsel appearing for the State has assured us that
these considerations would be conveyed to the Government.
So far as the other appellants are concerned, as the
object of the appellants was merely to assert a supposed or
bona fide claim of right, it cannot be said that they had
any common intention to cause-grievous hurt.
In these circumstances, therefore, the charge under ss.
326/34 I.P.C. must necessarily fall. The conviction under
s. 447 I.P.C. as also that under ss. 324/34 and 323/34
I.P.C. cannot be interfered with in view of the evidence of
assault made by the appellants on the
239
witnesses Ram Khelawan, Manohar, Sarabjit, Mewa Lal, Satro-
han with their respective weapons. Having regard to the
fact that the appellants made a concerted attack either with
a Biroo or lathis respectively on the aforesaid prosecution
witnesses they had undoubtedly a common intention to cause
simple hurt to these witnesses.
For these reasons, therefore, we would affirm the con-
victions and sentences passed on the appellant Ram Sajiwan
but allow the appeal of the other appellants viz. Ram Rattan
and Ram Samujh to this extent that their convictions and
sentences under ss. 326/34 I.P.C. are set aside, but their
convictions and sentences under ss. 324/34, 323/34 and 447
I.P.C. will stand. If the appellants have already served out
their sentences they may be released.
M..R. Appeal dismissed.
240