RAMACHANDRA GOVIND TAKE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is a revision application filed by original accused Nos. 1, 3 and 4, from the order of the Sessions Judge at Ahmednagar in appeal upholding the conviction of the said accused by the Judicial Magistrate, First Class, Shrirampur, on 13th July 1967. The original 2nd accused was acquitted by the said Judicial Magistrate, On appeal to the Court of Session, the Sessions Judge, whilst up-holding the conviction of accused Nos. 1, 3 and 4, reduced the sentences of imprisonment Passed against them to the period already undergone by them, maintaining the fine which was imposed by the trial Magistrate. It may, however, be mentioned that, on appeal, the Sessions Judge altered the conviction of accused No. 1 to Section 324 read with Section 109, I. P. C. from Section 324 read with Section 34, under which the trial Magistrate had found him guilty. As far as accused Nos. 3 and 4 are concerned, he, however, upheld their conviction under Section 324, 1. P. C.

(2.) THE facts of the case are that one Nabisaheb Nizamsaheb was one of the co-owners of a plot of land bearing Survey No. 96/2 situated in the village of Ekalahari, and accused No. l claimed to be in possession of the said Survey Number as a tenant under a registered Lease Deed dated 1st February 1958. Nabisaheb and his co-owners had filed a civil suit in the Court of the Civil Judge at Shrirampur for a declaration that the said Lease Deed was not binding upon them, and for an injunction restraining the 1st accused from entering upon the said land on 3rd September 1966. An application for an interlocutory in~unction made on behalf of the plaintiffs in that suit was dismissed some time before the incident with which we are concerned in the present case. The suit, however, is still pending. The evidence shows that, even though the said suit is still pending, Nabisaheb has made attempts on three or four occasions to assert the right which he claims to the land comprised in the said Survey No. 96/2, on each of which he was obstructed by the 1st accused who claimed to be a tenant thereof, as already stated above. The actual incident which has given rise to the present proceedings occurred early in the morning of 1st October L966, when Nabisaheb made one more attempt to assert his right to the said land and to carry out sowing operations thereon. For that purpose, he went to the said land accompanied by witnesses Sitaram and Harishchandra, but on this occasion, unlike on the previous occasions when he had made similar attempts, the incident did not pass off as peacefully as before. The evidence of the main prosecution witnesses, namely, Nabisaheb, Sitaram and Harishehandra, shows that accused No. 1, accompanied by three other persons, resisted the attempt of Nabisaheb and his associates, that accused No. 1 had a stick in his hand, accused No. 2 who was acquitted by the trial Magistrate had nothing in his hand, and that accused No. 3 had an axe while accused No. 4 bad a pen-knife in his hand. In the scuffle that ensued, Nabisaheb fell down and received several injuries on his person, including injuries with the axe and the pen-knife. The four accused were thereupon charged for offences under Sections 323 and 324 read with Section 34, I. P. C. , and were convicted and sentenced by the trial Magistrate as already stated earlier in this judgment. The convictions and sentence are confirmed by the Sessions Judge in appeal, subject to certain modifications which have also been set out above.

(3.) TWO questions are raised by Mr. Sabnis on behalf of accused Nos. 1, 3 and 4, and they are (1) that the incident itself is not proved to have occurred and alternatively (2) that, if it is held that such an incident did occur, the evidence led by the prosecution itself shows that accused Nos. 1, 3 and 4 acted well within the right of private defence, and they, therefore, committed no offence, by reason of the provisions of Section 96, I. P. C.