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2013 DIGILAW 1460 (MP)

Kanhaiyalal v. State of Madhya Pradesh

2013-11-27

A.K.SHRIVASTAVA, VIMLA JAIN

body2013
JUDGMENT A.K. Shrivastava, J. Feeling aggrieved by the judgment of conviction and order of sentence dated 30.07.2003 passed by learned Additional Sessions Judge, Lakhnadon, District Seoni in Sessions Trial No.77/2002 convicting the appellant under Section 302 IPC and thereby sentencing him to suffer life imprisonment and fine with default stipulations as mentioned in the impugned judgment, the appellant/accused has knocked the doors of this Court by preferring this appeal under Section 374(2) of the Code of Criminal Procedure, 1973 2. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this appeal since they are mentioned in paras 3 to 5 of the impugned judgment by the learned Trial Court. However, for ready reference, it would be condign to mention here on the point of some land dispute, all of a sudden the incident occurred in which the appellant uplifted the stone boulders and dealt three blows upon the deceased resulting into his death. The dead body was sent to Autopsy Surgeon who opined that on account of the injuries sustained by the deceased, he had died. 3. After the investigation was over a charge-sheet was submitted in the Committal Court which committed the case to the Court of Session where the appellant was tried. The learned Trial Judge on the basis of the allegations made in the charge-sheet framed charge punishable under Section 302 IPC against the appellant which he denied and requested for the trial. In order to bring home the charge, the prosecution examined as many as 11 witnesses and also placed Ex. P/1 to P/23, the documents on record. The defence of the appellant is that indeed there was a demarcation proceeding commenced in which it was found that the deceased has encroached upon certain piece of agricultural land of the appellant. Thereafter, the demarcation took place and the excess land which was being possessed by the deceased, its possession was returned back to the appellant. However, on the date of incident the deceased came along with his Oxen to plough and was trying to cultivate the land which was already demarcated and whose possession was already given to the appellant and when the appellant tried to intervene and resisted from taking possession, the deceased did not agree and forcibly started cultivating the land. However, on the date of incident the deceased came along with his Oxen to plough and was trying to cultivate the land which was already demarcated and whose possession was already given to the appellant and when the appellant tried to intervene and resisted from taking possession, the deceased did not agree and forcibly started cultivating the land. It is also the defence of the appellant that thereafter the deceased who came with bullocks, but they became violent as a result of which they ran over the deceased as a result of which he sustained injuries. In support of his defence, he examined Vishawanath (DW-1) and also examined himself as DW-2. 4. The learned Trial Judge on the basis of the evidence of the prosecution vis-a-vis evidence of the defence found that the case of the prosecution has been proved while the probable defence taken by the appellant/accused is not proved as a result of which convicted the appellant under Section 302 IPC and passed the sentence which we have mentioned hereinabove. 5. In this manner, this appeal has been filed by the appellant assailing the judgment of conviction and order of sentence. 6. The sole contention which has been raised by Shri Patel, learned counsel for the appellant/accused is that looking to the testimony of the eye-witness Sukarti Bai (PW-1) who is wife of the deceased as well as the evidence of Patwari Kapoor Singh (PW-9) it has been emphatically proved that there was a land dispute between the deceased and the appellant and the allegation was that deceased has encroached upon certain part of the agricultural land and the demarcation was also made in which it was held by the Revenue Court that the deceased has encroached upon land of the appellant and also directed to deliver the possession of the encroached area to the appellant but the deceased was illegally taking possession by cultivating the land and in these facts and circumstances, if the appellant has dealt blows of stone boulders to the deceased, his act was in exercise of right to save his property and, therefore, this appeal be allowed. 7. 7. On the other hand, Shri Mishra, learned public prosecutor argued in support of the impugned judgment and submitted that learned Trial Judge has assigned cogent reasons disbelieving the evidence of the appellant and by holding that prosecution has successfully proved its case beyond reasonable doubt and, therefore, this appeal be dismissed. 8. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed in part. 9. We have gone through the testimony of sole eye witness Sukarti Bai (PW-1) who is also the wife of the deceased and who has categorically stated in examination-in-chief that when her husband (the deceased) was cultivating the agricultural land, at that juncture appellant uplifted the stone boulders and gave three blows of it to the deceased. However, in para 9 of her cross-examination the factum of execution of demarcation which took place has been admitted by her and further she has admitted that excess land was of the appellant and the deceased was trying to cultivate the said land and, therefore, the incident had occurred. At this juncture, it would be condign to go through the statement of Patwari Kapoor Singh (PW-9) who has categorically admitted in para 5 that at the time of demarcation he was present in which it was found that the deceased has encroached upon certain piece of agricultural land of the appellant and the deceased was claiming it to be his own. Specifically he has deposed that land survey No. 208/1 was found to be of appellant while survey No. 189 belongs to the deceased and both the lands are adjoining to each other upon which a maidh (mound) was made where the incident had taken place. Since specifically the defence has been taken by the appellant and that too has been admitted by the wife of the deceased which has also been corroborated by the evidence of Patwari Kapoor Singh (PW-9), we find that the defence which has been taken by the appellant is probable and based upon preponderance. 10. Since specifically the defence has been taken by the appellant and that too has been admitted by the wife of the deceased which has also been corroborated by the evidence of Patwari Kapoor Singh (PW-9), we find that the defence which has been taken by the appellant is probable and based upon preponderance. 10. It is well settled in law that if the defence is found to be probable and is based upon preponderance then due weightage should be given to it by the Court and the standard of proof of the probable defence should not be compared with that of prosecution where the prosecution is obliged to prove its case beyond the reasonable doubt. By keeping this well settled principle in our mind, we find that the defence which has been taken by the appellant has been proved from the evidence of the prosecution witnesses Sukarti Bai (PW-1) and Patwari Kapoor Singh (PW-9). Not only this, the same defence has been set up by the appellant in his statement recorded under Section 313 Cr.P.C. in which he has specifically narrated the aforesaid defence. However, in the later part of 313 Cr.P.C. statement, he has stated to the Court that when the deceased was running away from the place of occurrence, all of a sudden his Oxen became violent and ran towards him as a result of which he fell down and sustained injuries resulting into his death. According to us, the later part of the defence is not found to be probable because the Autopsy Surgeon Dr. Vinod Kumar Pillai (PW-7) and Dr. N.K. Sehlam (PW-8) have opined that the injuries sustained by the deceased may come if the stone boulder is thrown upon him and it will never come if the Oxen would run over the deceased. Hence, according to us, later part of the defence is not found to be probable. 11. That apart, the appellant himself was examined as DW-2 in the Trial Court and has set forth the same defence that during the demarcation the agricultural land was found to be in excess to the deceased and after demarcation the possession of that land was also given to him but forcibly the deceased came and was trying to take the possession by cultivating the land. The same set of facts has also been deposed by Vishwanath (DW-1) who was also present at that juncture. The same set of facts has also been deposed by Vishwanath (DW-1) who was also present at that juncture. Hence, according to us, the probable defence which is based on preponderance has been successfully proved by the defence. According to us, the witnesses examined by the accused/appellant, their testimony should not be lightly brushed aside and thrown like a waste paper in the dust bin, but, their evidence is to be scrutinized with great care and caution. According to us, the testimony of the defence witnesses stands at par with that of prosecution and there is no law as such that prosecution witnesses are always true and the defence witnesses are always lier. 12. However, by paying heed to the entire gamut of the matter, we find that appellant by uplifting stone boulders dealt three blows of it to the deceased, has exercised right of his private defence to save his property (agricultural land which was found in his possession) but he exceeded his right by giving repeated blows of stone boulders and, therefore, he has committed the offence under Section 304 Part I, IPC. His conviction under Section 302 is altered to Section 304 Part I, IPC and he is directed to suffer 10 years RI which he had already suffered. 13. Resultantly, this appeal succeeds and is hereby allowed in part. The impugned judgment of conviction is altered from Section 302 to 304 Part I, IPC. The appellant is hereby directed to suffer jail sentence of 10 years RI which he had already suffered. Let the appellant be released forthwith, if he is not required in any other case. Appeal partly allowed.