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2003 DIGILAW 655 (MP)

State of M. P. v. Jagannath Lahar

2003-05-05

SHANTANU KEMKAR

body2003
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. 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 any fault and is based on correct appreciation of evidence because there is no evidence that accused 1 inflicted any injury to Manbahore. Chindlal (PW 1) in his examination-in-chief has specifically stated that Sushila (accused 2) brought lathi from her house and she inflicted lathi blow to Manbahore and not Jagannath (accused 1). Manbahore (PW 2) injured witness has also named Sushila for inflicting lathi blow to him. Chindlal (PW 1) in his examination-in-chief has specifically stated that Sushila (accused 2) brought lathi from her house and she inflicted lathi blow to Manbahore and not Jagannath (accused 1). Manbahore (PW 2) injured witness has also named Sushila for inflicting lathi blow to him. For convicting accused 1 the statement of Butni (PW 3) has not been appreciated by the trial Court in its correct perspective, because Butni has not stated that accused 1 inflicted lathi blow on Manbahore, but stated that wife of Jagannath inflicted lathi blow on her father on his right hand resulted in fracture of the hand. Thus the trial Court's judgment convicting accused 1 is based on mis-appreciation of evidence and has rightly been set aside in appeal by Sessions Court. In view of this the judgment of appellate Court with regard to acquittal of accused 1 appears to be just and proper and needs no interference. 10. The trial Court as well as appellate Court held that accused 2 inflicted lathi blow to Manbahore resulting ingrevious hurt. Appellate Court acquitted accused 2 on the ground that she had done so, for saving her husband accused 1, from Manbahore who reached the spot to save his father Chindlal from the fight which was going on between accused 1 and Chindlal, and for this she exercised right of private defence under section 102 of Indian Penal Code, and her act is covered under .general exceptions. 11. Thus, 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? From 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, inspite of this accused 2 inflicted lathi blow on Manbahore, causing grievous hurt resulting in fracture on his right hand. Manbahore was in the process of uplifting his father Chindlal, inspite 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. 12. So far as the question of sentence is concerned, the learned counsel for the accused 2 urged that accused 2 is a lady and now her age is about 60 years, there is nothing on record to show that she is a habitual offender, incident took place on a spur of moment and in such circumstances no useful purpose would be served in sending her in jail after a lapse of 20 years, and prayed for grant of probation. Considering the grounds urged with regard to sentence, in my opinion, accused 2 is entitled to be released on probation instead of being sending her to jail. She be released on probation on good conduct for a period of one year from today on furnishing a personal bond in the sum of Rs. 5,000/- to the satisfaction of the Judicial Magistrate Class II, Sidhi. During this period if any offence is committed by her she will be called upon to receive the sentence already awarded by the trial Court. Under section 5 of the Probation of Offenders Act, 1958 I direct that the accused 2 shall pay a sum of Rs. 5,000/- as compensation to complainant Manbahore within a period of three months from today. The said amount of Rs. 5,000/- shall be deposited by the accused 2 in the Court of Judicial Magistrate Class II, Sidhi which shall be paid to the complainant Manbahore. In the result, the appeal is partly allowed.