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1999 Supreme(Pat) 139
PATNA HIGH COURT
Narayan Roy, J.
Vijay Kumar
Versus
State Of Bihar
Criminal Appeal No. 377 of 1998 ;
Decided On : FEBRUARY 23, 1999
The right of private defence is a preventive and protective right and it is not necessary that the parties exercising their right of private defence as envisaged under Sec. 97 of the Indian Penal Code must sustain injuries.
Headnote:
CRIMINAL LAW - RIGHT OF PRIVATE DEFENCE - EXCEEDING THE RIGHT - CONVICTION UNDER SECTIONS 307 AND 326 OF THE INDIAN PENAL CODE - ALTERATION OF CONVICTION TO SECTIONS 325 AND 324 OF THE INDIAN PENAL CODE - SENTENCE REDUCED TO PERIOD ALREADY SUFFERED WITH FINE.
Fact of the Case:
The appellants were convicted under Sections 307 and 326 of the Indian Penal Code for causing grievous injuries to the prosecution witnesses during a land dispute. The appellants claimed that they acted in the exercise of their right of private defence as the prosecution witnesses were the aggressors.
Finding of the Court:
The court found that the appellants were in peaceful possession of the land in question and that the prosecution witnesses were the aggressors. However, the court also found that the appellants had exceeded their right of private defence by causing grievous injuries to the prosecution witnesses.
Issues: 1. Whether the appellants were justified in exercising their right of private defence. 2. Whether the appellants exceeded their right of private defence. 3. Whether the conviction of the appellants under Sections 307 and 326 of the Indian Penal Code was sustainable in law.
Ratio Decidendi: 1. The right of private defence is a preventive and protective right and it is not necessary that the parties exercising their right of private defence as envisaged under Sec. 97 of the Indian Penal Code must sustain injuries. 2. The appellants exceeded their right of private defence by causing grievous injuries to the prosecution witnesses. 3. The conviction of the appellants under Sections 307 and 326 of the Indian Penal Code was not sustainable in law as the injuries caused to the prosecution witnesses were not grievous.
Final Decision: The conviction of the appellants under Sections 307 and 326 of the Indian Penal Code was set aside and they were convicted under Sections 325 and 324 of the Indian Penal Code, respectively. The sentence passed against the appellants was reduced to the period already suffered by them in addition to payment of a fine of Rs. 1000 each.
Narayan Roy, J.
1. I have heard Counsel for the parties and also counsel for the State.
2. Appellant Nos. 1 and 3, namely, Vijay Kumar and Ajay Kumar have been convicted under Sec. 307 of the Indian Penal Code and Sec. 27 of the Arms Act and they have been sentenced to undergo rigorous imprisonment for seven years and two years, respectively, whereas appellant No. 2 Sanjay Kumar has been convicted under Sec. 326 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three years.
3. The prosecution case, according to the fardbeyan of one Fekan Sharma, is as follows; On 20.6.1982 at about 8 A.M. one Gamalal Sharma with pipe gun in his hand, Vijay Kumar Sharma with licensed gun. Ajay Kumar Sharma with pipe gun and Sanjay Kumar Sharma with sword came to the field of Awadh Bihari Singh; Bhikhari Singh and Lalbabu Singh in village Sarasai and uprooted the Marai (hut) and demolished it. Therefore, they were getting the field ploughed by one Bankey Paswan. At 9.30 A.M., the brother of Fekan Sharma, Arun Kumar Singh, Sunil Kumar Singh, Lalbabu Singh and his cousin (Fekans cousin) Bhulari Singh alias Harendra Singh, Ramnandan Singh, Binod Singh, Chitranjan Sharma came there and asked Gama Lai Sharma and others not to plough the land. Then, Gamalal Sharma fired thrice from pipe gun which hit Bhulan Singh as a result of which he fell down and on getting up he wanted to flee, but once again he stumbled, fell down and collapsed in the field of Jogi Barai. Vijoy Kumar Sharma fired at Lalbabu Singh with his gun. Ajay Kumar Sharma fired at Ramnand Singh. Sanjay Kumar Sharma hit Chltranjan Sharma with sword. The above occurrence was witnessed by one Surendra Singh, Dharmnath Sharma Sarpanoh, Gajendra Jha, Mukhiya, Tuna Singh, Jagarnath Singh, Ramchandra Sharma, Muneshwar Singh, Satyendra Sharma, Ashok Sharma, Dilip Sharma and others. Assailants fled away on motor cycles which they had kept hidden in a nearby orchard. Ramnandan Singh, Lalbabu Singh and Chitranjan Sharma were taken to Hajipur, Sadar Hospital for treatment. Fekan Sharma gave the aforesaid Jardbeyan before the police officer at the place of occurrence itself while he was watching the deceased Bhulan, his brother.
4. So far as the defence case is concerned, the accused persons denied the charges and through suggestions to the prosecution witnesses as also through some papers filed on their behalf took up the defence that the prosecution party itself on the alleged date came to the field bearing C.S. Plot No. 912 corresponding to R.S. Plot No. 1124 which was in the possession of deceased Gamalal Sharma and demolished the hut on the land and on protest from the owner (Gamalal Sharma) assaulted Gamalal Sharma and his sons for which a case was filed and is pending in the Court of Shri B. Pathak, Judicial Magistrate, 1st class. Hazipur.
5. The prosecution in all examined 16 witnesses and also led documentary evidence. At the same time, the accused persons have also led oral as well as documentary evidence. While leading documentary evidence, the parties have tried to prove their defective right over the land in question appertaining to C.S. Plot No. 912 corresponding to R.S. Plot No. 1124 over which the alleged occurrence had taken place. Out of the prosecution witnesses, P.W. 16 Gopalji Singh is a formal witness who had produced the cartridges in the Court; P.W. 15 Vinod Kumar Singh has been tendered; P.W. 14 S.Z. Fahman is another formal witness who has examined D.D.B.L. gun which is alleged to have been used by the appellants; P.W, 13 Vimal Kumar Verma is the Investigating Officer of the case; P.W. 12 is Dr. Rajeshwar Nath Upadhayay who had examined the injured Lalbabu Singh, Ramnandan Singh and Chitrajan Sharma; P.W. 1 Ram Gopal Munaka is another doctor who has held autopsy over the dead body of Bhulan Singh; P.W. 10 Fekan Sharma is the informant of the case; P.W. 9 Chitranjan Sharma is one of the injured; P.W. 8 Satyendra Kumar Singh is the eye-witnesses
