State Of Madhya Pradesh v. Shaligram And Others

This is an appeal from the acquittal of the 15 respon­dents (Shaligram, Shankerlal, v. Badrinarayan, Ramnarayan, Jagannath, Parasram, Lakhan, Ramkaran, Asgar, Devisingh, Han, Babulal, Dashrath, Govind and Hardeen) who were tried under sections 302/149 for having caused the death of Rambharos and also under sections 352/149 and 323/149 of the Penal Code for having caused injuries to Onkarsingh, Baiji, Kodu, Kunnu and Ramgopal and also under section 447 of the Penal Code for committing trespass and further under section 148 of the Penal Code for rioting while armed with deadly weapons.

2. The bone of contention was a field situated in village Manakpur. Mishrilal (P. W. 9), the erstwhile Malguzar, had sold the field in dispute to Hannu, father of Onkarsingh (P. W. 1). After Hannu's death, Onkarsingh and his mother paid land revenue. According to the prosecution, Onkarsingh stayed with his maternal uncle in another village as he was a minor. His mother entrusted the land to Parasram accused to look after the cultivation. About three years prior to the occurrence, Onkarsingh returned to village Manakpur and he demanded possession of the field from Parasram but he did not comply with his request. Onkarsingh then, of his own accord, took posse­ssion of the field. On July 20, 1966 Parasram and Babulal, filed an application (Ex. P. 32) in the Revenue Court, under section 250 of the M. P. Land Revenue Code, 1959, for their reinstatement into possession. On December 1, 1966, that application was dismissed in default.

3. On May 24, 1967, according to the prosecution, Parasram along with the another 14 respondents went to the field and challenged Onkarsingh who was there along with his men doing preliminary agricultural operations. Parasram questioned Onkarsingh why he was doing those operations. At Parasram's instance, Onkarsingh and his men were assaulted with lathia, Babulal, one of the men who had been brought by Parasram, had an axe, while all others had lathis. Asgar accused dealt a blow with his lathi on the head of Onkarsingh. Devisingh then dealt 4 or 5 blows with his lathi to Onkarsingh. Hari also dealt a lathi blow to Onkarsingh on his hand. Govind struck a lathi blow to Baiji. Parasram dealt lathi blows to Onkarsingh and Ramgopal. Dashrath dealt a lathi blow to Ramgopal.

4. Onkarsingh and Ramgopal are brothers. Their third brother Rambharos had also gone to the field. Parasram dealt a blow to Rambharos. He tried to run away from the scene but Parasram chased him. According to the prosecution, Parasram fell down while chasing Rambharos. Then Govind accused overtook Rambharos and caught hold of him. On this, Babulal dealt a blow with his axe which fell on the left side of the neck of Rambharos causing an incised wound 2” X ½ ” X ½ ” below the left mandible. Babulal dealt another below which fell on the right hand of Rambharos. While Rambharos was being removed to the hospital, he died.

5. Onkarsingh (P. W. 1) sustained 6 injuries with a fracture of the right ulna. Kodu got 4 lacerated wounds. Ramgopal had 4 lacerated wounds and a contusion, with a fracture of the skull bone. Baiji bad 2 lacerated wounds and an abrasion.

6. Of the 15 respondents, 6 admitted that they went to the field and were present at the time of the assault. The other 9 denied to have had any­thing to do with the quarrel. For instance, Jagannath pleaded that he was a by-stander. It is not necessary to state the defence of each one of them in detail.

7. The defence of Parasram and his other five associates (Asgar, Hari, Dashrath, Babulal and Govind) was that Parasram had been in continuous possession and it was Onkarsingh and his party who came to the field on the date of the occurrence to take possession by use of force. It was Onkarsingh's axe which fell on Rambharos causing him the fatal injuries. They said that they themselves were beaten by Onkarsingh's party.

8. The conclusions which the learned Additional Sessions Judge, Hoshangabad, who tried the accused, arrived at, may be summed up thus :--

(i) Rambharos died a homicidal death, but “the defence story may be probable.”

(ii) The accused party could not be considered as aggressor. “Hence if the accused caused hurt to Rambharos deceased, Ramgopal (P. W. 6) and Onkar (P. W. 1), then it must have been done in self-defence.”

(iii) Asgar dealt lathi blows to Onkarsingh. “It was probably in self-defence.”

(iv) The ownership of the field vested in Onkarsingh and others who were so recorded in the revenue papers.

(v) From the year 1952 onwards, the possession was of Parasram and his brothers along with Onkarsingh and others. The latest Khasra for the years 1963 to 1967 “show the same joint possession of Parasram and his bro­thers and Onkar and his brothers”. (Paragraph 7)

(vi) “From the evidence on record, it becomes very clear that the field in question was not in possession of Onkar and his brothers, but was in continuous possession of Parasram and his brothers. It is further proved that Onkarsingh used to cultivate the land when Parasram was not on the field. The disputes about the possession were going on amongst Parasram and Onkarsingh,”

(vi) “On the date of the eincident, Onkarsingh and his brothers were not in possession of the field and, in fact, accused Parasram and his brothers were in possession. Onkarsingh was trying to take possession forcibly or was trying to create evidence of his possession by entering the field during the absence of accused Parasram.” In the result, he acquitted all the accused.

9. Shri Tamaskar, learned Deputy Government Advocate, contended that the learned trial Judge was in error in not believing the prosecution case in respect of the actual fight and that the judgment contains certain mis-state­ments of facts in paragraphs 20 and 24. It was not Jagannath's defence that Rambharos sat on the chest of Parasram who had fallen down in the scuffle nor was it Parasram's story that Rambharos sat on his chest.

10. According to the evidence of Dr. Purohit (P. W. 14), who did the post-mortem examination, deceased Rambharos had a number of injuries. Inter alia, his left external carotid artery and adjacent vessels were injured. The injuries were sufficient in the ordinary course of nature to cause the death.

11. We have been taken through the entire evidence. The prosecution evidence is consistent, credible and convicing to establish that it was Babulal who struck Rambharos with an axe causing the fatal injury below the left mandible. We believe Onkarsingh (P. W. 1), Baiji (P. W. 2), Kodulal (P. W. 3), Premsingh (P. W. 4), Kunnu (P. W. 5) and Ramgopal (P. W. 6) on this point.

12. Learned trial Judge thought the defence story to be probable. We cannot accept that finding. According to Asgar, Rambharos sat on Parasram's chest and pressed his neck. When Asgar intervened, Onkarsingh aimed a blow at Asgar with his axe. Asgar then dealt a blow with his lathi to Onkarsingh. Rambharos fell down. His neck was bleeding. But that is not the statement of Parasram himself. In his written statement dated August 17, 1967, Parasram stated that he was assaulted by Onkarsingh's party. Thinking that he would be killed, he shouted and tried to run away and defended himself. In that melee, Onkarsingh and his companions fought among themselves and some of them got injured. In this statement, he says that he lodged a report to the police. That report is Ex. P.24 dated May 24, 1967. Neither in this written statement nor in that report, did Parasram say that Rambharos sat on his chest. In his statement, under section 342 of the Code of Criminal Procedure, in the court of sessions, Parasram stated that some one of Onkarsingh's party hit him with a stone. He fell down. Onkar­singh aimed a blow at him, but he pulled Rambharos in between, with the result that the axe fell on the neck of Rambharos. Onkarsingh then aimed a second blow which fell on the hand of Rambharos. He further stated that if Rambharos had not been in between the two, he (Parasram) would have been killed. Even in this statement, he did not state that Rambharos sat on his chest. The learned Deputy Government Advocate is right in his criticism that there is a mis-statement of fact in paragraph 24 of the trial Court's judgment.

13. The defence story is neither consistent nor credible.

14. Let it be mentioned here that no cross-examination was directed to these prosecution witnesses with respect to the injuries sustained by Rambharos. The learned counsel for the respondents, with their usual fair­ness, did not challenge the assault on Rambharos. Shri Bhargava, learned counsel for the respondents, (except respondents No. 4, 5 and 10) frankly conceded that this was never the subject matter of dispute even in the trial Court. The crucial points in the case, which were canvassed before us, were that of possession and the extent of right of private defence, to which we shall presently advert.

15. We believe the evidence of Onkarsingh, Baiji, Kodu, Premsingh, Kunnu and Ramgopal with regard to the injuries sustained by Rambharos and the manner in which they were caused.

16. Having carefully and minutely gone through the entire evidence, we find that:

(i) Parasram instigated his associates to open the assault. He himself was armed with a lathi. He rushed at Rambharos, grappled with him and also assaulted him and Onkarsingh (vide the depositions of P. W. 1 Onkar­singh, P. W. 2 Baiji, P. W. 3 Kodulal, P. W, 4 Premsingh, P. W. 5 Kunnu and Ramgopal P. W. 6);

(ii) Babulal was armed with an axe. He attacked Onkarsingh and Rambharos (Per P. W. 1 to P. W. 6)

(iii) Asgar attacked Onkarsingh with his lathi (Per P. Ws. 1, 2, 3, and 5)

(iv) Hari attacked Onkarsingh with his lathi (Per P. W. 1 and 5)

(v) Dashrath attacked Ramgopal and Rambharos (Per P. W. 1, 3 and 6)

(vi) Govind assaulted Baiji and also rushed at Rambharos and caught hold of him while he was running away. He grappled with him. (Per P.Ws. 1 to P. W. 6)

17. We believe the evidence of Onkarsingh, Baiji, Kodu, Premsingh, Kunnu and Ramgopal. We have not the slighest doubt that injuries sustained by Rambharos, Onkarsingh, Baiji and Ramgopal were caused by Parasram, Asgar, Hari, Dashrath, Babulal and Govind. These six accused admitted their presence at the scene of occurrence. The plea of these six accused is that they acted in exercise of the right of private defence of Parasram's property.

18. The law of private defence is founded on two cardinal principles :-

(1) Everyone has the right to defend one's own body and property, as also another's body and property. The law does not require him to be cowardly.

(2) This right cannot be used as a pretence for justifying aggression, i. e., for causing harm to another person, nor for inflicting more harm than is necessary to inflict for the purpose of defence.

Law allows resort to repel force vim vi repelleres licet, for warding off an injury but not for taking revenge: Sed ad propulsandam injuriam non ad sumendan vindictum. The right of private defence is not available to one who resorts to retaliation for any past injury, but to one who is suddenly confronted with the immediate necessity of averting impending danger not of his creation. In a word, the right is essentially of defence, not of retribution.

19. As regards possession, Onkarsingh (P. W. 1) clearly states that the disputed field of Manakpur belongs to him and his two brothers (Ratngopal and deceased Rambharos) that he and his brothers were in cultivating posse­ssion for three years; and that they lived in village Baijanpur which adjoins Manakpur. He further states categorically that in the preceding month of Shrawan (July-August 1966) Parasram had started proceedings against him in Tahsil Court at Seoni. At that time the field was in possession. He had reaped the crop of that year. He further states that in the year of occurrence too, he remained in possession. He had started agricultural operations four days prior to the date of the incident. He and 6 others had been busy in the operations from the morning to midday. After taking the lunch resumed the work. After about an hour and a half, Parasram's party consisting of 15 persons came. He could recognise 13 of them, but did not know the remaining two. Parasram abused him and asked him why he was carrying on the operations in his field. Parasram then asked his men to assault him. Thereupon, he and others were beaten.

20. Ramgopal (P. W. 6) supports Onkarsingh. He states that he and his brothers had been in possession for three years; and that for 2 years prece­ding the occurrence, they had personally cultivated the field and took the crops. On the morning of the day of occurrence, he along with Baiji, Kodu, Premsingh, Chhotelal, Kunnu and one more went to the field and did preliminary agricultural operations.

21. The evidence of Onkarsingh and Ramgopal is strongly fortified by the application dated July 5, 1966 (Ex. P. 32) filed by accused Parasram and his brothers Babulal and Chandersingh against Rambharos, Onkar, Gopal and their mother Smt. Godawari in the Court of the Tahsildar, Seoni-Malwa (Revenue case No. 4-A of l970 of 1965-66) under section 250 of the Land Revenue Code, 1959. They prayed for restoration of possession alleging that the non-applicants (Rambharos and 3 others) had wrongfully taken possession. In that application, they also stated that the land had been purchased by their father Rewaram. Birji was a cousin sister of Rewaram who lived with him. Birji had a son Hannu who died 25 years earlier. Onkarsingh Ram­bharos and Ramgopal are the sons of Hannu. It was then alleged that the non-applicants had no title to the land but somehow their names had been entered in the revenue papers although they resided elsewhere for about 25 years. They further asserted that even if they had any right on account of their names having been entered as Bhumiswami, they were entitled to only half of the field, but it was unlawful of them to cultivate the entire field and that it was also unlawful of the non-applicants to have dispossessed the applicants in respect of their half (Paragraph 7). They thus prayed for their possession to be restored to them. (Underlined here in Italics)

22. The application bears the signature of Parasram, Govind and Babulal accused.

23. The language of that application dated July 5, 1966 filed on July 20, 1966 leaves no manner of doubt that Parasram and Govind admitted as back as on July 5,1966 that they had been dispossessed and that possession had been taken by Onkarsingh, his two brothers and his mother, and, further that they were cultivating the entire field. That being so, and in the absence of any evidence to show that thereafter Parasram or Govind was put back in possession, or they took possession from Onkarsingh and his brothers, the conclusion is inescapable that Onkarsingh and his brothers continued in actual possession of the field upto the date of the occurrence from July 5, 1966 and even 6 months earlier as stated in paragraph 7 of that application. It follows that on the date of the occurrence, (May 24, 1967) when Parasram went to the field with 14 men, he wanted to take possession of the field by criminal force and to oust Onkarsingh and his brothers by criminal force. They, therefore, constituted an unlawful assembly within the meaning of sec­tion 141 of the Penal Code and when they used force or violence, they commit­ted the offence of rioting as defined in section 146 of the Penal Code. It cannot be said that they were “defending” their possession.

24. It is not necessary to enter into the question of title for the purposes of the present case. The law is well settled on the points. A person entitled to the land but not in possession of it has no right to dispossess even a tres­passer by force, if the trespasser is in settled possession of the land. In such a case unless he is evicted in due course of law, he (the trespasser) is entitled to defend his possession even against the rightful owner. See Munshiram and others v. Delhi Administration; AIR 1968 SC 702 (705). Even assuming that Onkarsingh and his brothers had a defective title or no title at all, yet, since they had been in possession for some time, they had the right to defend their possession even against the rightful owner, and the accused party had no right to use criminal force with the common object of taking back the possession or ousting Onkar­singh and his men. This was not a case where Onkarsingh and his brothers were in the process of taking possession of the field. Their possession had extended over a sufficiently long period, at least more than one year. The accused thus had no right of private defence. It was open to them to take recourse to due process of law.

25. The learned counsel for the respondents relied on the evidence of Shri Tandon (P. W. 23), who was the counsel for Parasram and his brothers in the abovesaid revenue proceeding under section 250 of the M. P. Land Revenue Code, and contended that Shri Tandon amended paragraph 7 of the said application (Exh. P-32) without obtaining instructions from his clients (Paras­ram and others). It appears from the order-sheet (Exh. P-33) of that revenue case that the application under section 250 of the Land Revenue Code was filed on July 20, 1966, and September 2, 1966 was fixed for consideration. On the last mentioned date, the Naib Tahsildar ordered the case to be filed holding that no prima facie case was made out. Later on, the following order was made:

“Shri Tandon pleader appears. He states that dispossession took place prior to 6 months' which he forgot to write in his application. He is allowed to correct the application.”

The Court then fixed September 30, 1966, as the next date of hearing, direct­ing notices to be issued to the non-applicants. Paragraph 7 of that application was then amended by Shri Tandon, so as to introduce an averment that the applicants (Parasram and others) had been dispossessed about six months before the application. Shri Tandon states that this amendment he made without calling Parasram and others. But, in the same breath, he states that he had made this amendment on the basis of the instructions he had already received from them. Therefore, it cannot be said that the amendment was made on mere imagination of Shri Tandon. He further reiterated that the statement in paragraph 7 of Ex. P-32 about dispossession was written on the basis of what Parasram and others had told him. The learned Additional Sessions Judge, in paragraph 12 of his judgment, says: “Mr. Tandon made the amendment during the absence of Parasram and others that the non-applicants (Onkar and others) had possession for 6 months prior to the application”. But the learned trial Judge overlooked the other part of Shri Tandon's deposit­ion to which we have just now referred. In fact Shri Tandon's deposition only adds support to the admission contained in Ex P 32.

26. The learned trial Judge further observed that the application Ex. P-32 did not help the prosecution because it was dismissed for default and there was no decision on the point as to who was in possession on the date of the occurrence. It is true that there was no decision by the Court, nor could there be any, because what was to be decided in that case was whether the applicants (Parasram and others) were entitled to restoration of their posses­sion of which they had been deprived by the. non-applicants There ran be no doubt that the application, Ex. P-32, contained a clear statement that Onkar-singh and his brothers were in possession of the field on the date of the applic­ation (July 5 or 20, 1966) and also for 6 months prior to it. The very fact that an application was made under section 250 of the Land Revenue Code is evidence of the applicants having been already dispossessed. That section reads thus:

“(1) If a Bhumiswami is dispossessed of the land otherwise than in due course of law or if any person unauthorisedly continues in possession of any land of the Bhumiswami to the use of which such person has ceased to be entitled under any provisions of this Code, the Bhumiswami or his successor-in-interest may apply to the Tahsildar for a restoration of the possession within two years from the date of dispossession or from the date on which the possession of such person becomes unauthorised, as the case may be.” (Italicised by us.)

It is noteworthy that the application Ex. P-32, bears the signatures of Paras­ram, Govind and Babulal. Now, Parasram filed a written statement in the Court of Session on August 17, 1967, but it contains no explanation about the application Ex. P-32. It may also be remembered that Parasram was a Patel.

27. A great deal of stress was laid by the learned counsel for the respondents on paragraphs 17 and 18 of the deposition of Onkarsingh in the Court of Session. There he states that after the death of his father 25 years earlier, he resided with his maternal uncle. But it was not that Parasram was in possession throughout that period for four or five years the land was with one Tika, for two years with Nathhoo, and then with Parasram He states that he lived with his maternal uncle for 8 or 10 years. After his return from his maternal uncle's house, he demanded possession from Parasram, but Paras­ram did not quit. This gave rise to the dispute. Then he says to reproduce his own words as rendered into English:--

“We were demanding possession He was not giving it. Then we entered into the field (thinking that) the land is ours. If he does not give us possession we will cultivate it of our own accord. That is the basis of the dispute. Rambharos has been killed and I have been injured.”

The learned counsel for the respondents reads the statement which we have given in inverted commas to mean that what Onkarsingh narrated was about the happening of the date of the occurrence. We cannot accept it. We are clearly of the opinion that this statement has to be read along with the sentences which follow in the same context in paragraphs 19 and 20 of his deposition, where he goes on to say :

“Prior to the occurrence, I had made a report to the police station against Paras­ram.”

Further he states:

“The police people told me to cultivate the land. I, therefore, cultivated it. As they permitted us, we cultivated the land. Even if the police had asked us not to do so, we would have cultivated the land.” (Italicised by us.)

This is not all. He further states in paragraph 20 thus :

“Last year I had sown Tuar (pulse) Prior to it, I had sown wheat and Tuar.”

Therefore, it is abundantly clear that the statement of Onkarsingh that he took possession of the land of his own accord does not refer to the date of the occur­rence but refers to at least two years prior to it. And, this is consistent with the contents of the aforesaid application, (Ex. P-32) made by Parasram and his brothers on July 20, 1966 with which we have dealt above.

28. The learned counsel for the respondents further relied on the state­ment of Patwari Moolchand (P. W. 21) who made an entry in the Panchsala Khasra for the years 1963-64 to 1966-67 (Exh D-6) in column 18, that Paras­ram was long in possession. Column 18 is for 'amendments'. Moolchand states that he visited the field on January 13, 1967. Crop was standing. Onkar told him that he had sown the crop, but Parasram Patel told him that he was in possession. Because of his dispute, he (Patwari) did not record who was in possession or whose crop it was. In cross-examination, when he was asked about the said entry in the Khasra Panchsala, he stated that he made that entry on the instructions of the Revenue Inspector, who visited the field on February 25, 1967. On being further asked, he stated that he could not say whether in the year 1966-67, Parasram had sown any crop. Then he turned round and stated that Parasram had sown the crop. In our opinion, it cannot be inferred from the Patwari's statement that Parasram was in possession of the field on the date of the occurrence. On the contrary, it is clear from his state­ment that on January 13, 1967, Onkarsingh had claimed the standing crop to be his as sown by him. This is wholly consistent with Onkarsingh's evidence and also the application (Ex. P-32) made by Parasram and his brothers in the Revenue Court on July 20, 1966. The Patwari does not say that on January 13, 1967, Parasram claimed the crop to be his or to have been sown by him; he merely asserted his possession. The Revenue Inspector was not produced as a witness. The entry made by the Patwari in column 18 of the said Panchsala Khasra does not mention any date, nor does it mention under whose orders or instructions he made that entry. That column is meant for 'amendments'. Another Pauchsaia Khasra for the years 1947-48 to 1951-52 was produced by the defence. It is Ex. D-7. The names of the occupants entered in that earlier Khasra are Rova (father of Parasram), Rambharos, Gulab and Onkar (minor sons of Hannu) and Smt. Godawari (wife of Hannu). This Khasra does not help the accused. On the other hand, if at all, it supports Onkar-singh's evidence regarding his title. But in the present case, we are not con­cerned with title.

29. No other evidence was relied on before us by the learned counsel for the respondents to show that possession of the field was with Parasram on the date of the occurrence.

30. As a result of the above discussion, we hold that Onkarsingh and his brothers were in actual possession of the disputed field on the date of the occur­rence and had been so since at least July 5, 1966, and even 6 months earlier. It, therefore, follows that Parasram and his party had no right to take the law in their own hands to enter into the field by using force. (Section 141, Penal Code.) Onkarsingh and his brothers had the right to maintain their possession and, if necessary, to use force. Paragraph 3 of section 99, Indian Penal Code reads thus:

“There is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.”

31. The findings reached by the learned Additional Sessions Judge regarding possession and self-defence are unreasonable and unwarranted. They are in utter disregard of significant farts and circumstances well established in the case. He attached very little importance to such a strong piece of evidence as the application (Ex. P-32) filed in the Revenue Court by Parasram and his brothers, which contained unequivocal admission about the possession of Onkarsingh and his two brothers along with their mother. He did not read the whole statement of Shri Tandon (P. W. 23). It appears that he mainly relied on the evidence of Moolchand Patwari (P. W. 21) and concluded from it that Parasram was in possession of the field on the date of the occurrence. But the statement of Moolchand does not prove the actual possession of Paras­ram. As we have already pointed out, he says that he merely acted on what the Revenue Inspector told him to do, but the entry in Ex. D-6 relied on by the respondents makes no mention of any order of the Revenue Inspector or of any other authority. The findings regarding possession and right of self-defence reached by the learned Additional Sessions Judge are wholly erroneous and must be set aside.

32. There is one more aspect of this case. There is clear and cogent evidence that it was while Rambharos was trying to run away from the scene of the occurrence that accused Parasram chased him and then accused Govind overtook him and prevented him from running away and that it was at this stage that Babulal assaulted him with his axe, causing the fatal injury. By no stretch of argument can it be said that Babulal or any other accused had any right of private defence against Rambharos who was running away from the scene of the occurrence. (Section 105, Penal Code). The assault on him was wholly unjustified.

33. It now remains to be considered what offence these six accused committed. Babulal is clearly liable for having caused the death of Ram­bharos. It may not be safe to hold that he intended to cause his death within the meaning of section 300 of the Penal Code. But undoubtedly, he dealt a blow with an axe, which is a deadly weapon, on a vital part of the body (head region). It must, therefore, be held that he knew that the injury he was going to inflict was likely to cause the death within the meaning of section 299 of the Penal Code Babulal, respondent is, therefore, guilty of the offence punishable under section 304, para 2 of the Penal Code. In our opinion, a sentence of 5 years rigorous imprisonment would be appropriate.

34. From what we have said, the guilt of Parasram, Asgar, Hari, Dashrath, Govmd and Babulal under section 148 of the Penal Code for noting with deadly weapon; under section 325 read with section 149 of the Penal Code for voluntarily causing grievous hurt to Onkarsingh, Ramgopal; and under sec­tion 323/149 of the Penal. Code voluntarily causing hurt to Baiji and Kodu has been fully established. We are of the opinion that sentences of 6 months rigorous imprisonment, 2 years and 1 year rigorous imprisonment respectively, would be appropriate.

35. We however do not find sufficient material to hold that these 6 accused-respondents had common object to cause the death of Rambharos or knew that the death was likely to be caused. From the facts and circum­stances, it is established that their common object was to forcibly oust Onkar-singh and his men and to forcibly take possession of the held. Babulal is personally liable for his individual act. We reject the contention of the learn­ed counsel for the appellant that these six accused respondents are also con­structively liable for Babulal's act and should be convicted under section 302 or 304 read with section 149 of the Penal Code.

36 We are not satisfied about the complicity of nine respondents: (1) Shaligram, (2) Shankarlal, (3) Badrinarayan, (4) Ramnaravan, (5) Jagan­nath, (6) Lakhan, (7) Ramkaran, (8) Devisingh and (9) Hardeen. No reliable evidence could be pointed out to us by the learned Deputy Government Advocate to show any overt act on their part or that they had any common object with the remaining six accused respondents. However, learned Deputy Government Advocate tried to pursuade us about the complicity of Jagannath, Lakhan and Devisingh respondent. But, so far as Jaganuath and Lakhan are concerned, we find no reliable evidence of any overt act. No doubt, Onkar-singh (P. W.1) stated that it was Devisingh who dealt 3 or 4 blows with his stick on him, but, since other prosecution witnesses do not ascribe any overt act to Devisingh, we would give him the benefit of doubt The order of acquittal of these 9 respondents (Shaligram, Shankarlal, Badrinarayan, Ramnarayan, Jagannath, Lakhan, Ramkaran, Devisingh and Hardeen) must be maintained.

37. While deciding this appeal, we have had before us the guiding rules laid down by their Lordships in M. G. Agarwal v. State of Maharashtra; AIR 1963 SC 200 Laxman Kalu Nikalje v. State Of Maharashtra.; AIR 1968 SC 1390 Mathai Mathews v. The State of Maha­rashtra; Criminal Appeat No. 18 of 1967 decided on 23.7.1969=1969 SCN 454 and K. N. Virji v. State of Gujrat; AIR 1970 SC 219.

38. In the result, (1) The appeal is dismissed as against Shaligram, Shankarlal, Badrinarayan. Ramnarayan, Jagannath, Lakhan, Ramkaran Devi­singh and Hardeen respondents. Their acquittal is maintained. Their bail bonds are discharged. (2) The appeal is allowed and the order of acquittal of Parasram, Asgar, Hari, Babulal, Dashrath and Govind respondents is set aside. All these six accused-respondents are convicted under sections 148, 325/149 and 323 /149 of the Indian Penal Code and each one of them is sentenced to 6 months, 2 years and 1 year rigorous imprisonment respectively. Further, Babulal accused respondent is also convicted under section 304, para 2 of the Penal Code and is sentenced to 5 years rigorous imprisonment. All sentences shall run concurrently.

Acquittal of accused maintained; others convicted.