STATE OF GUJARAT Vs. BHARATSING ODHARSING

JUDGEMENT

(1.) This is an appeal by the State against four respondents. These respondents were prosecuted for an offence under section 447 Indian Penal Code. The learned Judicial Magistrate First Class Devgadhbaria District Panchmahals before whom these respondents were prosecuted convicted respondent No. 1 Bharatsing Odharsing (hereafter called the respondent simpliciter) for the offence under section 447 Indian Penal Code and acquitted the rest of that offence. The present appeal has been directed against the other three respondents against the order of acquittal in respect of this offence under section 447 Indian Penal Code. However the learned Government Pleader very fairly conceded that he could not press the appeal against these respondents Nos. 2 3 and 4 and consequently it is not necessary to discuss the case against these three respondents. Respondent Bharatsing was also charged for the offence under section 326 Indian Penal Code of the allegation that whilst committing criminal trespass on 27/06/1958 at about 11-00 A. M. in the village Paroli in survey number 100 he had voluntarily caused grievous hurt to the complainant Vaja Ratna with a Dharia. The learned Magistrate come to the conclusion that respondent had caused grievous hurt to complainant Vaja Ratna but he acquitted him of the offence under section 326 Indian Penal Code on a finding that the respondent Bharatsing had a right of private defence and that he had caused grievous hurt in the exercise of that right. The State has challenged this part of the acquittal order against respondent Bhartsing. Having regard to the concession made by the learned Government Pleader regarding the case against respondents Nos. 2 3 and 4 the only question which survives for consideration in the present appeal is whether the learned Magistrate was right in holding that respondent Bharatsing had the right of private defence when he caused grievous hurt to complainant Vaja Ratna. Mr. Barot the learned Counsel for the respondent Bharatsing however challenges the finding of the learned Magistrate regarding the possession of the field fin question and the allegation of Criminal trespass. The learned Government Pleader contended that respondent Bharatsing had no right to challenge this finding because respondent had not preferred an appeal against the conviction recorded by the learned Magistrate and the order of conviction under section 447 Indian Penal Code had become final. In our judgment the mere fact that the order of conviction under section 447 Indian Penal Code had become final as against respondent Bharatsing does not preclude him from putting forward a case which would be inconsistent with the finding which ultimately led to the conviction under section 447 Indian Penal Code. In challenging these findings respondent does not challenge the conviction under section 447 Indian Penal Code. The conviction under that section would remain intact but in so far as the State now presses the case against respondent under section 326 Indian Penal Code it is open to the respondent to show that in fact he was in possession of the field in question and that when he caused grievous hurt he had the right of private defence. Under the circumstances we have come to the conclusion that the findings of the learned Magistrate relating to possession of the survey number and criminal trespass do require to be considered in the present appeal.

(2.) It is common ground that survey number 100 belongs to one Sada and that till 1956-57 complainant Vaja Ratna was a protected tenant thereof and was in possession of the same. It is also common ground that on 5-10-1956 Sada gave a notice to the complainant Vaja Ratna by which she purported to terminate the permanent tenancy and called upon the complainant Vaja Ratna to deliver possession of the same on or before 31-3-1957. There is a controversy between the prosecution and the defence as to whether in response to this notice complainant Vaja Ratna did or did not deliver possession to Bai Sada The prosecution case is that possession was not delivered inspite of the notice. According to the defence possession was delivered to Bai Sada a few days before the Akhatrij of 1957 and that after that delivery Sada gave the land for cultivation to the respondent Bharatsing. The learned Magistrate has accepted the prosecution version and rejected the defence version. We are in agreement with this finding of the learned Magistrate. Several witnesses depose that complainant Vaja continued to be in possession of the field even in the year 1957-58 and that it was he who had sown millet and groundnut in the monsoon of 1958. Besides the complainant the persons who depose about this possession are (1) Girdhar Khatu (2) Navalsing Anopsing (3) Shana Bapu (4) Hema Koya and (5) Vala Jetha. It may not be quite safe to rely upon the evidence of the first four witnesses on the question of possession. The first two witnesses also pose as eye-witnesses in the case. According to the defence version these two persons had also participated in certain crimes which took place on that day against respondent Bharatsing and his wife Umed. The other two witnesses Shana Bapu and Hema Koya undoubtedly are contiguous neighbours of the aforesaid field but their cross-examination discloses that each of these two persons has or had some dispute with the respondent Bharatsing. However the evidence given by Vala Jetha does not suffer from any of these infirmities. There is no doubt whatsoever that he is also one of the neighbours of the aforesaid field. He states definitely that complainant Vaja Ratna was in possession all along including the disputed year 195758 and that in the monsoon of 1958 it was complainant Vaja Ratna who had sown millet and groundnut in the field. The latter part of his evidence is corroborated by the observations made by the panchas at the time when they inspected the scene of offence. The evidence led by the defence to prove that possession was delivered over to the complainant Vaja does not impress us. That evidence consists of the testimony of witnesses Gulabsing Odharsing and Bhavansing Jhinabava. Bhavnasings evidence is that when possession was demanded by Sada from the complainant Vaja Ratna the latter collected panchas at this i. e. the witness Gulabsings house and in the presence of those panchas consisting of about 15 persons a writing was executed by Vaja surrendering possession and which document was written by Devising Jhinabava and was kept in the custody of one Balwantsing Kabhai. He further deposes that after the surrender by complainant Vaja the land was given for cultivation by Sada to the respondent Bharatsing. The witness Bhavansing states that he was one of the panchas who had gathered at the house of Gulabsing and that at that time complainant Vaja surrendered the possession in his favour. But we find a contradiction between these two witnesses on an important point. According to Bhavansing the surrender was oral according to Gulabsing the surrender was evidenced by a document. The original document has not been called for nor does any explanation appear on the record which would justify the non-production of the document. The writer Devising has not been examined; nor has the owner Sada been examined. The defence however very strongly relies upon the entry in the combined Register which shows that in the year 1957-58 respondent Bharatsing had sown groundnut and Tuver crops in the field bearing survey number 100. The contention is that this entry is presumptive evidence of the possession of respondent Bharatsing. We cannot agree. Under section 135-J of the Bombay Land Revenue Code it is the entry in the Record of Right which has a presumptive value and not the entry in the Tenancy Register. The extract which has been produced by the defence is an extract from the combined Register which consists both of the Record of Right and the Tenancy Register. In the Record of Right the name of Vaja Ratna still appears as the protected tenant. It is this entry which got a presumptive value. It is extremely improbable that the name of Vaja Ratna would still continue to be shown as protected tenant if he had surrendered the field in question by executing a document. The Tenancy Register is maintained with a view to show as to who had cultivated a land in a particular year and the Pahanipatrak would show the same fact. It is true that the fact that respondent Bharatsing has been shown to be the cultivator of the crops in the year 1957-58 may have some value but it cannot have a presumptive value such as the entry that Vaja Ratna was the protected tenant will have. In view of the testimony of the independent person Vala Jetha and the probabilities of the case we are not prepared to place any reliance upon the aforesaid entry in the Tenancy Register or the Pahanipatrak. The Police Patel of the village was present at the time when this entry was made but no attempt was made by the defence to prove as to under what circumstances that entry had come to be made and whether complainant Vaja who is an illiterate person had any notice about that entry having been made. Having regard to the fact that Vaja Was a protected tenant that he had been cultivating the land and the improbability of his having surrendered possession on account of a simple notice having been given by Sada it is impossible to place any reliance upon the extract from the Tenancy Register or the Pahanipatrak. In our opinion having regard to the aforesaid facts threw would be a presumption about the continuity of possession by the complainant Vaja Ratna. In any case the fact that Vaja had shown millet and groundnut over the whole field is a good piece of evidence to show that he was in possession of the field in question in 1958. There is absolutely no documentary evidence to show that Sada had ever given the land to the respondent Bharatsing for cultivation. The oral evidence on this point consists of the interested testimony of respondents brother Gulabsing only. Having regard to all these facts we have come to the conclusion that the learned Magistrate was right in holding that complainant Vaja was in possession of the aforesaid field.

(3.) It is common ground that on 27-6-1958 respondent Bharatsing and three others had gone to the field and had engaged themselves in sowing operations. The prosecution evidence shows that they had re-ploughed some portions of the field in which millet and groundnut seeds had already been sown by Vaja. The respondent Bharatsing does not dispute that he had ploughed the field before the arrival of Vaja and he had sown groundnut seeds in a part of the field. The prosecution case is that at about this lime complainant Vaja alone came to the field and when Vaja remonstrated with the respondent Bharatsing the latter attacked Vaja with a Dharia and caused him two injuries; one of which was a grievous hurt. This version is denied by the defence Accordingly to the defence at about 11-00 or 12-00 noon Vaja Ratna and witnesses Navalsing Anopsing Girdhar Khatu and three others cams to the field armed with Dharias and stick and assaulted respondents Bharatsing all of a sudden a.1d caused him injuries on his head leg and back and respondent Bharatsing fell down unconscious that respondents wife Umed intervened and witness Girdhar gave one blow of her left hand and caused her a severe injury.