Gujarat High Court
Kasturji Modaji Mali vs The State Of Gujarat on 4 September, 2025
Author: Gita Gopi
Bench: Gita Gopi
NEUTRAL CITATION
R/CR.A/363/2007 ORDER DATED: 04/09/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 363 of 2007
With
R/CRIMINAL APPEAL NO. 238 of 2007
==========================================================
KASTURJI MODAJI MALI & ORS.
Versus
THE STATE OF GUJARAT
==========================================================
Appearance:
ADVOCATE NOTICE SERVED for the Appellant(s) No. 2,3,5,6
MS ARCHANA R ACHARYA(2475) for the Appellant(s) No. 1,4
MR ABHIJIT RATHOD for MR MEHUL H RATHOD(701) for the
Opponent(s)/Respondent(s) No. 1
PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE GITA GOPI
Date : 04/09/2025
COMMON ORAL ORDER
1. Criminal Appeal no.363 of 2007 is represented by Ms. Archana Acharya, learned advocate for the respective appellants and Criminal Appeal no.238 of 2007 is represented by Mr. Abhijit Rathod, learned advocate for Mr. Mehul Rathod, learned advocate for the respective appellants.
2. Both the learned advocates have submitted that the dispute between the parties was with regard to survey no.262 of Village Damasim, Taluka and Page 1 of 12 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Sep 08 2025 Downloaded on : Tue Sep 09 01:05:40 IST 2025 NEUTRAL CITATION R/CR.A/363/2007 ORDER DATED: 04/09/2025 undefined District Banaskantha. Learned advocate has submitted that the civil proceedings were initiated and submitted that the accused of Criminal Appeal no.363 of 2007, being the owners of the land, were doing agricultural work and the accused of Criminal Appeal no.238 of 2007 entered the land and in such defence to protect the land, owner of survey no.262 defended themselves in the property against the accused and the accused of Criminal Appeal no.238 of 2007 had used weapons to defend themselves and during the course of the scuffle, Dinesh Mali, Kasturji Mali, Ashuram Prajapati had sustained grievous injuries. Both the learned advocates referred to Sessions Case no.55 of 2004, where the accused, who are nine in number, were charged under Sections 147, 148, 149, 323, 324, 326, 504, 506(2) and 427 of IPC. After the trial, the learned Trial Court acquitted all the accused under Sections 504, 506(2) read with Section 149 IPC and convicted all the accused Page 2 of 12 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Sep 08 2025 Downloaded on : Tue Sep 09 01:05:40 IST 2025 NEUTRAL CITATION R/CR.A/363/2007 ORDER DATED: 04/09/2025 undefined under Sections 147, 148, 323, 324, 325, 427 read with Section 149 IPC by order dated 19.1.2007.
3. Sessions Case no.26 of 2004 was tried against six accused under Sections 147, 148, 149, 307, 323, 324, 326, 504 IPC. The learned Additional Sessions Judge, 2nd Fast Track Court, Deesa on the very same day i.e. on 19.1.2007, acquitted the accused under Sections 307, 504 read with Section 149 IPC, while convicted the accused under Sections 147, 148, 323, 324, 326 read with Section 149 IPC.
4. Accused no.1 of Sessions Case no.55 of 2004 who is the appellant no.1 in Criminal Appeal no.238 of 2007 since deceased, the son Ashokji has filed affidavit along with the copy of the death certificate of Mafaji Dhanaji Mali, which shows the date of death as 25.12.2018. In view of the death and affidavit which is attached along with the copy of the death certificate and when the other side does not dispute the death, name of Page 3 of 12 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Sep 08 2025 Downloaded on : Tue Sep 09 01:05:40 IST 2025 NEUTRAL CITATION R/CR.A/363/2007 ORDER DATED: 04/09/2025 undefined the appellant no.1 - Mafaji Dhanaji Mali in Criminal Appeal no.238 of 2007 is ordered to be deleted as abated.
5. The affidavits are produced by both the sides, which are of Ashokji Mali, Narsinhji Mali, Ishwarji Mali, Sonaji Mali, Kailashkumar Mali, Prabhuji Mali, Ishwarji Mali and Pratapji Mali in Criminal Appeal no.363 of 2007.
6. In Criminal Appeal no.238 of 2007, Modaji Chelaji Tank, Kasturji Modaji Tank, Rajubhai Modaji Tank, Dineshbhai Modaji Tank, Aasuram Tank and Mohanji Modaji Tank have filed the affidavits. All the accused of both the matters are present before this Court and have affirmed the contents of the affidavit and that they have stated that the affidavits have been executed on their free will without any pressure. Since the issue was regarding the ownership right of the land property, both the parties as complainant in inter-se matter have stated that they have Page 4 of 12 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Sep 08 2025 Downloaded on : Tue Sep 09 01:05:40 IST 2025 NEUTRAL CITATION R/CR.A/363/2007 ORDER DATED: 04/09/2025 undefined settled all their issues with regard to agricultural land and now they have no grievance and the civil disputes are over, there is no dissatisfaction or any agony in the family, all the matters have been amicably settled and since both the sides have large family, they now want peace in the Village and are repenting the criminal action.
7. Mr. Rohankumar H. Raval, learned APP has submitted that the incident is of 13.11.2003 and the sentence is dated 19.1.2007 and therefore, Mr. Raval, learned APP submitted that the parties would have the right to compound the offence only to those which were relevant under Section 320 of the Code of Criminal Procedure, 1973 prevalent on the date of the offence as well as on the date of the judgment. However, Mr. Raval, learned APP has submitted that Section 326 is not compoundable and hence, no concession can be given to the parties and the Page 5 of 12 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Sep 08 2025 Downloaded on : Tue Sep 09 01:05:40 IST 2025 NEUTRAL CITATION R/CR.A/363/2007 ORDER DATED: 04/09/2025 undefined judgment of the Trial Court on that count should prevail.
8. Countering the arguments, learned advocate Ms. Archana Acharya has submitted that the issue was with regard to self-defence to protect the property and Section 104 IPC and referring to the judgment of Jai Bhagwan & Ors. v. State of Haryana, AIR 1999 SC 1083, submitted that at the relevant point of time, plea of private defence was taken and the learned Trial Court Judge has also considered plea of right of private defence. However, since the matter at that time was pending civil dispute between the parties, the same was not settled and hence, the ownership and possession of the property was questioned. Ms. Acharya submitted that now it has become an admitted position that survey no.262 is of the accused who have been sentenced under Section 326 IPC and the right now becomes established that they were the owners of the Page 6 of 12 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Sep 08 2025 Downloaded on : Tue Sep 09 01:05:40 IST 2025 NEUTRAL CITATION R/CR.A/363/2007 ORDER DATED: 04/09/2025 undefined property and place of offence was survey no.262, where the quarrel was about misconception of the owner of survey no.265 that the accused had entered their land. However, place of offence was survey no.262 and hence, the accused would have all the right to defend the property. Mr. Rathod has submitted that on 13.11.2003, it was alleged that the complainant and Narsinhbhai and the complainant's father - Mafaji Dhanaji and all the accused as referred in the Sessions Case no.55 of 2004 were on their survey no.265 and were collecting Gavar crop. Mr. Rathod has submitted that as per the case, it appears to be a boundary dispute, where both the parties are having common ancestors and the property was not partitioned by metes and bounds and therefore, the dispute arose on that day.
9. Advocate Ms. Archana Acharya has submitted that the civil proceedings have now finalized that the place of incident was survey no.262 and Page 7 of 12 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Sep 08 2025 Downloaded on : Tue Sep 09 01:05:40 IST 2025 NEUTRAL CITATION R/CR.A/363/2007 ORDER DATED: 04/09/2025 undefined hence, in accordance to Section 104 IPC, the right of private defence would extend in case the criminal trespass, which would permit the accused to cause injury subject to restrictions mentioned in Section 99. Hence, the injury as noted as grievous was permissible limit, which the law granted to the accused.
10. The punishable section in Sessions Case no.55 of 2004 is compoundable as was noted under the schedule under Section 320 Cr.P.C., which was prior to 31.12.2009 being compoundable section, where under Section 323, no permission of the Court is required while for Sections 324 and 325, it could be compoundable with the permission of the Court and hence, considering the settlement and the dispute being civil in nature, the Court permits the parties to compound the offence as were punishable on 19.1.2007 by the learned Additional Sessions Judge in Sessions Case no.55 of 2004. Hence, the Page 8 of 12 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Sep 08 2025 Downloaded on : Tue Sep 09 01:05:40 IST 2025 NEUTRAL CITATION R/CR.A/363/2007 ORDER DATED: 04/09/2025 undefined judgment of conviction and order of sentence dated 19.1.2007 passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Deesa in Sessions Case no.55 of 2004 is hereby set aside as compounded. The accused are acquitted of all the charges in view of compounding provision.
11. In Sessions Case no.26 of 2004, Section 323 is compoundable by the injured parties themselves. While Section 324 becomes compoundable with permission of the Court. However, the only section, which remains against the accused of Sessions Case no.26 of 2004 is Section 326, which is non-compoundable offence.
12. In view of the settlement between the parties and when survey no.262 has been decided and the ownership of the accused of Sessions Case no.26 of 2004, the right to protect the property would become applicable as referred in the case of Jai Bhagwan (supra) by learned advocate Ms. Acharya, wherein the Hon'ble Supreme Court has noted in Page 9 of 12 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Sep 08 2025 Downloaded on : Tue Sep 09 01:05:40 IST 2025 NEUTRAL CITATION R/CR.A/363/2007 ORDER DATED: 04/09/2025 undefined Paragraph 12 as under:-
"12. So far as A-2 is concerned, he has been convicted by the High Court under Section 326 IPC. Since he is one of the co-owners and possessor of the land and the offence committed by him is causing grievous hurt by dangerous weapon he is protected as he did so in exercise of right of private defence of property under Section 104 IPC, so he cannot be found guilty of offence under Section 326 IPC. A-2 is, therefore, acquitted and is directed to be set free forthwith unless he is required to be incarcerated in any other case."
13. Section 104 IPC permits the owner of the property to defend the property and while exercising the right of private defence against the persons who commit theft, mischief or criminal trespass, then subject to restriction mentioned in Section 99 IPC, the accused would be entitled to defend the property. As referred to in the case of Jai Bhagwan (supra), the Hon'ble Supreme Court has accepted the plea of private defence of the property, where the Page 10 of 12 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Sep 08 2025 Downloaded on : Tue Sep 09 01:05:40 IST 2025 NEUTRAL CITATION R/CR.A/363/2007 ORDER DATED: 04/09/2025 undefined evidence shows that the accused caused grievous hurt by dangerous weapons. The Hon'ble Supreme Court, observing the entitlement to protection of right of private defence of property under Section 104, set aside the conviction of the accused under Section 326 IPC in view of the provision of Section 104 and the observation of the Hon'ble Supreme Court in the case of Jai Bhagwan (supra) in appreciation of the evidence and when survey no.262 was decided by the Civil Court and on the revenue record to be of the ownership of the accused, their right to defend the property would get extended and the injury as caused could be considered as in private defence and hence, the case has been proved for the acquittal under Section 326 IPC.
14. In view of the above, the conviction under Sections 323 and 324 IPC Sessions Case no.26 of 2004 is set aside on the basis of the settlement as the parties have compounded the offence while Page 11 of 12 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Sep 08 2025 Downloaded on : Tue Sep 09 01:05:40 IST 2025 NEUTRAL CITATION R/CR.A/363/2007 ORDER DATED: 04/09/2025 undefined conviction under Section 326 of IPC is set aside on the merits of the matter Considering that the accused had caused injury in self-defence in private defence to protect the property.
15. In view of the above, the judgment of conviction and order of sentence dated 19.1.2007 passed by the learned Additional Sessions Judge, 2nd Fast Track Court, Deesa in Sessions Case no.26 of 2004 is set aside. The accused are acquitted of the charges.
16. Accordingly, Criminal Appeals no.238 of 2007 and 363 of 2007 are allowed in the above terms. Registry is directed send the record and proceedings back to the concerned Trial Court in both the matters.
(GITA GOPI,J) Maulik Page 12 of 12 Uploaded by MAULIK R. PANDYA(HC00205) on Mon Sep 08 2025 Downloaded on : Tue Sep 09 01:05:40 IST 2025