State of M. P. vs Jagannath Lahar - 2003 Supreme(MP) 616

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2003 Supreme(MP) 616

2004(1) JLJ 217
Shantanu Kemkar, J.
State of M.P. v. Jagannath Lahar and another
Cri. Appeal No. 356 of 1990; against the judgment of acquittal
passed by Sessions Judge, Sidhi, in Criminal Appeal No. 42 of 1988,
reversing the judgment of Judicial Magistrate Class II, Sidhi, passed in Cri. Case No. 79 of 1988; Decided on 5.5.2003.

Advocates:
Sanjay Seth for State-appellant; Subodh Gautam for respondents.

Headnote:(1) Criminal P.C., 1973 -- S. 378(1) -- appeal against acquittal -- appellate Court wrongly extending benefit of right of private defence -- acquittal liable to set aside.
       (2) Penal Code, 1860 -- Ss. 325 and 102 -- accused inflicting lathi blow and thereby causing fracture in hand -- complainants not having any weapon nor trying to give any beating to accused -- accused not entitled to any benefit of right of private defence.
       On 8.9.1983 at about 10 a.m., the ox of Jagannath (Accused 1) was tied in his field by a long rope so it reached the fields of Chindlal and started eating the crop. Butni (PW 3), daughter of Manbahore, requested Accused 1 to remove his ox from their field which he refused. Butni informed this to her grandfather Chindlal. Chindlal went to the spot and while he was removing the ox, Accused 1 came, uplifted and threw down Chindlal, sat on his chest and started beating. On listening the cry of Chindlal, his son Manbahore reached the spot and when he was lifting his father from the ground, Sushila (Accused 2), wife of Jagannath, came with lathi and inflicted lathi blow on Manbahore, as a result, Manbahore sustairied grievous hurt on his right hand. [Para 2
       Held : There is concurrent finding of both the Courts below that accused 2 inflicted lathi blow to Manbahore causing grevious hurt. Question which needs to be decided is, whether accused 2 was exercising her right of private defence, thus her act was justified or not? Fr0m the evidence on record, it is proved that Chindlal was being beaten by accused 1 and to save Chindlal, Manbahore reached the spot. Chindlal and Manbahore were not armed with lathi or any weapon, accused 1 was beating Chindlal by sitting on his chest; there was no apprehension of danger to the body to accused 2 or accused 1. Manbahore was in the process of uplifting his father Chindlal, in spite of this accused 2 inflicted lathi blow on Manbahore, causing grievous hurt resulting in fracture on his right hand. On the basis of evidence on record, such act by accused 2, cannot be said to be an act done while exercising her right of private defence. The appellate Court has committed gross illegality in extending to her benefit of right of private defence without any basis for the same. The evidence on record clearly establishes the guilt of accused 2 for convicting her for committing offence under section 325 of the Indian Penal Code and as a result she is convicted for• committing offence under section 325 of Indian Penal Code. [Para 11
       (3) Probation of Offenders Act, 1958 -- S. 5 -- offence under S. 325, IPC -- 20 years elapsed -- accused attained age of 60 years and she is a lady -- benefit extended subject to payment of Rs. 5,000/- as compensation to victim. [Para 12
       ¼1½ naM izfØ;k lafgrk] 1973 && /kkjk 378¼1½ && nks"keqfDr ds fo#) vihy && vihy U;k;ky; }kjk izkbosV izfrj{kk ds vf/kdkj dk Qk;nk xyr fn;k x;k && nks"kflf) vikLr fd, tkus ;ksX; gSA
       ¼2½ naM lafgrk] 1860 && /kkjk 325 rFkk 102 && vfHk;qDr us ykBh ls izgkj dj gkFk esa vfLFkHkax dkfjr fd;k && ifjoknhx.k ds ikl gfFk;kj ugha] u mUgksaus vfHk;qDr dks ihVus dk iz;Ru fd;k && vfHk;qDr izkbosV izfrj{kk ds vf/kdkj ds Qk;ns dk gdnkj ughaA
       8-9-1983 dks iwokZàu yxHkx 10-00 cts txékFk ¼vfHk;qDr 1½ dk cSy vius [ksr esa yach jLlh ls bl izdkj cSa/kk Fkk fd og fpanyky ds [ksr rd igq¡p x;k vkSj Qly [kkus yxkA eucgksj dh iq=h ¼v lk 3½ us vfHk;qDr 1 ls vuqjks/k fd;k fd og viuk cSy muds [ksr ls gVk ys ijarq mlus bUdkj dj fn;kA cqVuh us bldh tkudkjh vius firkeg fpanyky dks nhA fapanyky LFky ij igq¡pk vkSj og cSy fudky jgk Fkk fd vfHk;qDr 1 igq¡p x;k vkSj mlus fpanyky dks mBk dj iVd fn;k] mldh Nkrh ij cSB x;k vkSj ml ihVuk vkjaHk dj fn;kA fpanyky dh phRdkj lqu dkj mldk iq= eucgksj LFky ij igq¡p x;k vkSj tc og vius firk dks Hkwfe ij ls mBk jgk Fkk rc txékFk dh iRuh lq‘khyk ¼vfHk;qDr 2½ ykBh ls ys dj igq¡ph vkSj mlus ykBh ls eucgksj ij okj fd;k ftlds ifj.kkeLo:i eucgksj ds nk,¡ gkFk esa xaHkhj pksV igq¡phA ¿ iSjk 2À
       vfHkfu/kkZfjr % fupys nksuksa U;k;ky;ksa dk le:i fu"d"kZ gS fd vfHk;qDr 2 us eucgksj ij ykBh ls okj dj ds xaHkhj pksV dkfjr dhA fofu‘p;kFkZ iz‘u ;g gS fd D;k vfHk;qDr 2 izkbosV izfrj{kk ds vius vf/kdkj dk iz;ksx dj jgh Fkh ftlds dkj.k mldk d`R; U;k;ksfpr Fkk] ;k ugha \ vfHkys[kxr lk{; ls lkfcr gS fd fpanyky vfHk;qDr 1 ls fiV jgk Fkk vkSj fapnyky dks cpkus ds fy, eucgksj LFky ij igq¡pkA fpanyky vkSj eucgksj ykBh ;k fdlh vU; gfFk;kj ls l‘kL= ugha Fks] vfHk;qDr Ø- 1 fpanyky dh Nkrh ij cSB dj mls ihV jgk Fkk] vfHk;qDr 1 ;k vfHk;qDr 2 ds ‘kjhj d ckjs esa fdlh [krjs dh vk‘kadk ugha FkhA eucgksj vius firk fpanyky dks mBkus esa yxk Fkk fQj Hkh vfHk;qDr 2 us xaHkhj {kfr dkfjr djrs gq, eucgksj ij ykBh ls okj fd;k ftlds ifj.kkeLo:i mlds nk,¡ gkFk esa vfLFkHkax gks x;kA vfHkys[kxr lk{; ds vk/kkj ij vfHk;qDr 2 dk ,slk d`R; mldh viuh izkbosV izfrj{kk ds vf/kdkj ds iz;ksx esa fd;k x;k d`R; ugha dgk tk ldrkA vihy U;k;ky; us mls izkbosV izfrj{kk ds vf/kdkj dk fujk/kkj Qk;nk ns dj Hkkjh voS/krk dh gSA vfHkys[kxr lk{; ls Hkkjrh; naM lafgrk dh /kkjk 325 ds v/khu vijk/k djus ds fy, vfHk;qDr 2 dks fl)nks"k Bgjkus ds fy, mldk nks"k Li"Vr% LFkkfir gks tkrk gSA ifj.kkeLo:i mls Hkkjrh; naM lafgrk dh /kkjk 325 ds v/khu vijk/k djus ds fy, fl)nks"k Bgjk;k tkrk gSA ¿ iSjk 11À
       ¼3½ vijk/kh ifjoh{kk vf/kfu;e] 1958 && /kkjk 5 && naM lafgrk dh /kkjk 325 ds v/khu vijk/k && 20 o"kZ O;rhr && vfHk;qDr dh vk;q 60 o"kZ gks xbZ rFkk og efgyk && vkgr dks izfrdj ds :i esa #- 5]000@& ds lank; ds v/;/khu Qk;nk fn;k x;kA ¿ iSjk 12À

JUDGMENT

1. This appeal under section 378(1) of the Code of Criminal Procedure arises out of the judgment dated 25.9.1989 passed in Criminal Appeal No. 42/88 by Sessions Court, Sidhi, whereby the Sessions Court has allowed the appeal of accused respondents and set aside the judgment dated 28.9.1988 passed by Judicial Magistrate Class-II, Sidhi in Criminal Case No. 79/88 by which the respondents were convicted for offence under section 325/34 of the Indian Penal Code and sentenced for three months rigorous imprisonment and fine of Rs. 300/- each, in default of deposit of fine further three months simple imprisonment.

2. The prosecution case, in brief, may be mentioned :

On 8.9.1983 at about 10 a.m., the ox of Jagannath (Accused 1) was tied in his field by a long rope so it reached the fields of Chindlal and started eating the crop. Butni (PW 3), daughter of Manbahore, requested Accused 1 to remove his ox from their field which he refused. Butni informed this to her father Chindlal. Chindlal went to the spot and while he was removing the ox, Accused 1 came, uplifted and threw down Chindlal, sat on his chest and started beating. On listening the cry of Chindlal, his son Manbahore reached the spot and when he was lifting his father from the ground, Sushila (Accused 2), wife of Jagannath, came with lathi and inflicted lathi blow on Manbahore, as a result, Manbahore sustained grievous hurt on his right hand.

3. The trial Court framed the charges. The accused abjured their guilt.

4. The prosecution examined as many as seven witnesses out of which Hiralal (PW 4) and Rajendra Gupta (PW 5) turned hostile. The trial Court after considering the statement of Chindlal (PW 1), Manbahore (PW 2), Butni (PW 3), Mahesh Prasad (PW 6) and Dr. V.N. Padore (PW 7) held that the complainant Manbahore received grievous injury in his right hand, resulted in fracture. The trial Court held that from the statement of Butni (PW 3) that accused 1 inflicted one lathi blow to Manbahore, and from the statement of Chindlal (PW 1), Manbahore (PW 2) and Mahesh Prasad (PW 6) the trial Court held that Manbahore was inflicted one blow of lathi by accused 2. The trial Court found both the accused guilty of offences under section 325/34 of the Indian Penal Code and sentenced as above.

5. In appeal, the Sessions Court held that there is no dispute to the fact that because of quarrel between both the parties Manbahore sustained fracture on his hand. However, after reassessing the evidence, the appellate Court held that there is no evidence to the fact that accused 1 inflicted any injury to complainant Manbahore and also no evidence that there was any common intention of accused persons to cause injury to Manbahore. The Sessions Court acquitted accused 1 from the charge of committing offence under section 325/34 of the Indian Penal Code. As regards accused 2, the appellate Court on the basis of evidence found that though she inflicted lathi blow on Manbahore but she was entitled to do so, as she was exercising her right of private defence and therefore, allowed the appeal and acquitted her too.

6. The appellant State being aggrieved by this judgment of acquittal passed by the Sessions Court, Sidhi, reversing the judgment of conviction passed by trial Court has' preferred this appeal under section 378(1) of the Code of Criminal Procedure.

7. Heard Shri Sanjay Seth, learned State Counsel, and Shri Subodh Gautam, learned counsel for the respondents and perused the record.

8. The contention of Shri Sanjay Seth, learned counsel for State is that the trial Court after appreciating the evidence rightly convicted both the accused and the judgment of acquittal in appeal by the Sessions Court is illega1. Right of private defence was not available to accused. 2. On the other hand Shri Subodh Gautam, learned counsel for the respondents supported the judgment of Sessions Court.

9. On close scruitny of the evidence, I find that the order of the appellate Court acquitting accused 1, is free from

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