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
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
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
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
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
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
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
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
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
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
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
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
