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2013 DIGILAW 1194 (PAT)

Nawal Kishore Sharma v. State of Bihar

2013-09-27

HEMANT KUMAR SRIVASTAVA

body2013
Hemant Kumar Srivastava, J. – The appellant No. 1 namely, Nawal Kishore Sharma has already died as per report of Senior Superintendent of Police, Muzaffarpur and therefore, the appeal in respect of petitioner No. 1 namely, Nawal Kishore Sharma is abated. 2. The rest two appellants have challenged the judgment of conviction and order of sentence dated 21-06-2001 passed by learned Additional District & Sessions Judge-Ist, Sitamarhi in Sessions Trial No. 141 of 1987/04 of 2000 by which and whereunder, he convicted the rest two appellants for the offence punishable under Section-307 read with Section-34 of the IPC and sentenced them under the aforesaid section to undergo Rigorous Imprisonment for a period of 7 years and also imposed a fine of Rs 2,000/- each and in default of payment of fine, the appellants were directed to undergo rigorous imprisonment for a period of six months. 3. The prosecution case, in brief, is that P.W. 5 Harshvardhan Sharma gave his fardbeyan to officer-in-charge of Runni Saidpur police station on 26-12-1985 to this effect that on the above-said date, when he was getting his field ploughed by his ploughmen, the appellants, being armed with Lathi and gun, came there and the appellant, Nawal Kishore Sharma (since deceased) asked to stop ploughing the land and threatened to shoot but when he as well as his ploughmen made protest, the appellant, Lalit Kumar Sharma assaulted him by means of Lathi and Nawal Kishore Sharma aimed his gun on him with a view to shoot him. He hid himself in a ditch but Nawal Kishore Sharma chased him. He found a piece of bamboo and hit on the gun of Nawal Kishore Sharma, as a result of which, the aforesaid gun got fired and the supporter of the gun was separated and fell down on the earth and in the aforesaid process, Nawal Kishore Sharma received injury. Having got the injury, Nawal Kishore Sharma started fleeing from there and after that, he picked up the supporter of the gun. He also picked up slippers of the appellants and accused, Nawal Kishore Sharma (since deceased). After the aforesaid occurrence, he went to the police station and gave his fardbeyan and also handed over supporter of the gun and clothes. He also stated in his fardbeyan that the appellants assaulted him with Lathi, as a result of which, he sustained injury on his head. After the aforesaid occurrence, he went to the police station and gave his fardbeyan and also handed over supporter of the gun and clothes. He also stated in his fardbeyan that the appellants assaulted him with Lathi, as a result of which, he sustained injury on his head. The reason behind the alleged occurrence as disclosed by the informant is said to be land dispute. 4. On the basis of statement of P.W. 5, Runni Saidpur P.S. case No. 242 of 1985 u/S 307, 323/34 of the IPC and 27 of the Arms Act was registered against the appellants and Nawal Kishore Sharma. 5. The case was investigated by the I.O. and after completion of the investigation, the I.O. submitted charge sheet against the appellants as well as Nawal Kishore Sharma (since deceased) for the offence punishable under Sections-307/34, 323/ 34 of the IPC and 27 of the Arms Act. The cognizance of the offence was taken and the case was committed to the court of sessions, in usual way. 6. The appellants as well as Nawal Kishore Sharma were put on trial. Appellants including Nawal Kishore Sharma (since deceased) were charged for the offence punishable under Sections-307/34 of the IPC whereas; Nawal Kishore Sharma (since deceased) was separately charged for the offence punishable u/S 27 of the Arms Act. The appellants including Nawal Kishore Sharma (since deceased) denied the charges and claimed to be tried. 7. In course of trial, altogether 11 prosecution witnesses were examined and documentary evidence was also got exhibited. The statement of appellants including Nawal Kishore Sharma (since deceased) were recorded u/S 313 of the Cr.P.C. in which, they reiterated their innocence. 8. The appellants including Nawal Kishore Sharma (since deceased) got examined three defence witnesses and also produced documentary evidence. 9. In course of trial, altogether 11 prosecution witnesses were examined and documentary evidence was also got exhibited. The statement of appellants including Nawal Kishore Sharma (since deceased) were recorded u/S 313 of the Cr.P.C. in which, they reiterated their innocence. 8. The appellants including Nawal Kishore Sharma (since deceased) got examined three defence witnesses and also produced documentary evidence. 9. It would appear from perusal of statements of appellants including Nawal Kishore Sharma (since deceased) as well as documentary evidence, available on the record that the defence of appellants including Nawal Kishore Sharma (since deceased) was total denial of the prosecution story and it was specific stand of appellants including Nawal Kishore Sharma (since deceased) that the prosecution party forcibly wanted to plough the ancestral land, which had not been partitioned and when appellants including Nawal Kishore Sharma (since deceased) went to forbade the prosecution party, the prosecution party brutally assaulted them, for which, Nawal Kishore Sharma (since deceased) lodged Runni Saidpur P.S. Case No. 243 of 1985 for the offences punishable under Sections-324, 323, 341/34 of the IPC against P.W. 5 & others. 10. The learned trial court, having considered the materials available on the record, came to conclusion that both parties went on the land without having the matter was decided and both the parties exceeded their rights and unnecessarily assaulted each others when the matter was pending for disposal before the Chakbandi court and furthermore, the learned trial court also came to conclusion that appellants along with Nawal Kishore Sharma (since deceased) having common intention attempted to commit murder of P.W. 5. 11. Learned Counsel appearing for appellants assailed the impugned judgment of conviction and order of sentence arguing that the learned trial court held that there was bona fide land dispute between the parties and both the parties assaulted each others but in spite of that, learned trial court convicted the appellants for the offence punishable under Sections-307/34 of the IPC. It is further contended by learned counsel for the appellants that the land, in question, had not been partitioned between the parties and in spite of that, P.W. 5 along with his associates went to plough the aforesaid land and when the appellants forbade them to do so, the prosecution party assaulted the appellants including Nawal Kishore Sharma (since deceased). It is further contended by learned counsel for the appellants that the land, in question, had not been partitioned between the parties and in spite of that, P.W. 5 along with his associates went to plough the aforesaid land and when the appellants forbade them to do so, the prosecution party assaulted the appellants including Nawal Kishore Sharma (since deceased). Therefore, the appellants including Nawal Kishore Sharma (since deceased) had legal right to defend themselves as well as their property and, so even if, P.W. 5 and others sustained injury, then also, the act of the appellants including Nawal Kishore Sharma (since deceased) would come under the right of their private defence and the appellants could not have been convicted for the offence punishable under Section-307 read with Section-34 of the IPC. In support of his contention, he referred a decision reported in 1975 Cr.L.J. 968 in which, it has been held that the right of private defence of property presupposes that the person, exercising the right or the person on whose behalf the right is exercised, in possession of the property, which has to be defended. It is further contended by him that it is not necessary to take specific plea of right of private defence in course of trial and being the question of fact, the court has to consider all surrounding circumstances for determining the right of private defence and question of exercising or overstepping of right, will be decided by the court as court has to consider the situation which the accused has faced pragmatically and technical approach has to be viewed. In support of the above-said contention, learned counsel for appellants relied upon a decision reported in AIR 2008 (SC) 3284 . Another decision cited on behalf of the appellants is AIR 1968 (SC) 702 in which, accused was in possession of the disputed land as tenant. Complainant, purchased the aforesaid land in public auction and according to him, he got the possession of the aforesaid land but the aforesaid possession was said to be delivered in absence of accused and, thereafter, complainant’s party armed with deadly weapons and tractor, went to the field and the accused-party asked them to clear out of the field and on the refusal, an altercation took place in which, some persons sustained injury. The Apex court of this country came to the conclusion that the accused persons had right to private defence and did not exceed that right. Another decision cited on behalf of the appellants is 1960 PLJR 526 in which, it has been held by this court that right of private defence is open not only to the person whose land or person is attacked by any aggression but is open to anyone against the attack on the land or person at even someone else. Two other decisions were also cited on behalf of the appellants on the similar point and, therefore, it is needless to refer the aforesaid decisions. 12. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and order of sentence arguing that almost all the prosecution witnesses stated that Nawal Kishore Sharma (since deceased) along with appellants being armed with gun and Lathi, went over the disputed land and aimed to shoot the P.W. 5 but luckily P.W. 5 escaped unhurt and after that the appellants assaulted P.W. 5 and others by means of lathi and the aforesaid fact is corroborated by the injuries found on P.W. 5 and therefore, the learned trial court rightly convicted and sentenced the appellants in the manner as stated above. 13. P.W. 2, Ram Prasad Sahani, P.W. 3 Kailash Rai, P.W. 6 Gaurishankar Sahani claimed themselves to be eye witnesses of the alleged occurrence whereas; P.W. 4 and P.W. 5 are said to be injured of this case. P.W. 8 Rakesh Kumar Sinha is a doctor who stated that on 26-12-1985, he examined P.W. 4 Rramashish Rai and found two simple injuries caused by lathi on his person and similarly, on the same day, he examined P.W. 5 and found three simple injuries caused by hard and blunt substances on the person of P.W. 5. 14. P.W. 9 is investigating officer. He stated that having registered the case, he proceeded to inspect the place of occurrence and found mark of trampling on the place of occurrence. He stated that he did not find any empty cartridge on the place of occurrence. He also admitted that in course of investigation, when he went to S.K. Medical College and Hospital, Muzaffarpur, he found Nawal Kishore Sharma (since deceased) admitted in the aforesaid hospital. He stated that he did not find any empty cartridge on the place of occurrence. He also admitted that in course of investigation, when he went to S.K. Medical College and Hospital, Muzaffarpur, he found Nawal Kishore Sharma (since deceased) admitted in the aforesaid hospital. This witness also admitted that counter case bearing Runni Saidpur P.S. Case No. 243 of 1985 was registered and he inspected the aforesaid case also. P.W. 5, P.W. 10 and P.W. 11 are formal witnesses whereas; P.W. 7 has been tendered by the prosecution. 15. On perusal of the evidence available on the record, it is clear that the alleged occurrence took place over Plot No. 4303 appertaining to Khata No. 906, area 1 acre 35 decimals situated at village-Gaunsnagar P.S. Saidpur, District-Sitamarhi. Admittedly, the aforesaid land was ancestral land of P.W. 5 and appellants. P.W. 5 has admitted at paragraph-21 of his deposition that litigation was going on between the parties in Consolidation Court in respect of Plot No. 4303. The P.W. 5 claimed that the aforesaid land had already been partitioned in the year, 1960 whereas; the stand of the appellants was that the aforesaid land had not been partitioned at the time of alleged occurrence. It is admitted position that P.W. 5 and appellants were co-sharers in the aforesaid land. Therefore, it is established from the aforesaid fact that both the parties were claiming their right, title and possession exclusively over the above-said disputed land. 16. The prosecution case is that P.W. 5 along with his associates went to plough the aforesaid land. The appellants along with Nawal Kishore Sharma (since deceased) came there and assaulted them whereas; the case of the appellants is that P.W. 5 forcibly wanted to plough the aforesaid land and when appellants as well as Nawal Kishore Sharma (since deceased) went to forbade him to do so, the P.W. 5 and his associates assaulted them. 17. The defence witness No. 2 Dr. Arun Kumar Chakravorthy stated that on 26-12-1985, he examined Nawal Kishore Sharma (since deceased) and found altogether 10 injuries on his person and this witness found one injury grievous on the left middle finger of Nawal Kishore Sharma (since deceased). Some injuries of Nawal Kishore Sharma (since deceased) were found on the head as well as different parts of his body. The aforesaid injuries were apparently visible at the time of alleged occurrence. Some injuries of Nawal Kishore Sharma (since deceased) were found on the head as well as different parts of his body. The aforesaid injuries were apparently visible at the time of alleged occurrence. P.W. 5 has stated that Nawal Kishore Sharma (since deceased) sustained injury only on his finger and he has not stated about the other injuries, found on the person of Nawal Kishore Sharma (since deceased). This witness stated at paragraph-40 of his cross-examination that he had not seen any injury on the person of appellants including Nawal Kishore Sharma (since deceased) but as I have already stated that some injuries of Nawal Kishore Sharma (since deceased) were clear and visible at the time of alleged occurrence and, therefore, it is clear that prosecution has not come before the court with real state of affairs and, therefore, in my view, it is difficult to believe the story as propounded by the prosecution. 18. As I have already stated that both the parties were claiming their right, title and possession over Plot No. 4303 and admittedly, the litigation between the parties in respect of the aforesaid plot was pending before the Consolidation Court, therefore, it is established that the alleged occurrence took place in bona fide land dispute and the learned trial court also found that both partied had gone on the disputed land without final decision on the matter. Therefore, in my view, the learned trial court committed error in convicting and sentencing the appellants passing impugned judgment of conviction and order of sentence and, furthermore, I am of the opinion that appellants are entitled to get the benefits of doubts. 19. On the basis of aforesaid discussions, this Cr. Appeal is allowed and the impugned judgment of conviction and order of sentence dated 21-06-2001 is hereby set aside. Accordingly, appellants are acquitted of the charges giving benefit of doubt. 20. The appellants are on bai l. They are discharged from the liabilities of their respective bail bonds.