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2013 DIGILAW 362 (PAT)

Nirmal Paswan v. State of Bihar

2013-03-15

HEMANT KUMAR SRIVASTAVA

body2013
JUDGMENT Hemant Kumar Srivastava, J. This criminal appeal has been preferred against the judgment of conviction and sentence order dated 11.09.2001 passed by Vth Additional Sessions Judge, Bhojpur at Ara in Sessions Trial No. 214 of 1996 by which and whereunder he convicted the appellant No.2, namely, Munna Paswan and appellant No.7, namely, Uday Narayan Paswan for the offences punishable under Sections 148 and 324 of the Indian Penal Code and sentenced the appellant No.2, namely, Munna Paswan to undergo rigorous imprisonment for two years for each of the offences punishable under Sections 148 and 324 of the Indian Penal Code whereas appellant No.7, namely, Uday Narayan Paswan was sentenced to undergo rigorous imprisonment for three years for the offence punishable under Section 324 of the Indian Penal Code and to undergo rigorous imprisonment for two years for the offence punishable under Section 148 of the Indian Penal Code. Similarly, rest appellants were convicted for the offences punishable under Sections 147 and 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year for each of the offences punishable under Sections 147 and 323 of the Indian Penal Code. However, learned Vth Additional Sessions Judge directed that all the sentences would run concurrently. 2. In brief, the prosecution case is that PW 5, namely, Vishwanath Paswan gave his fardbeyan to officer in charge of Shahapur Police Station on 19.01.1995 at 12:00 noon to this effect that on the same day, appellants, namely, Awadh Bihari Paswan, Uday Narayan Paswan, Vidyapati Paswan and Gauri Shankar Paswan were cutting his tree upon which he forbade them to do so but appellant. Uday Narayan Paswan started abusing and threatening him. He again forbade them to do so but the above stated persons became infurious and in the meantime appellants. Vidyapati Paswan, Nirmal Paswan, Phulan Paswan and Nand Kumar Paswan also reached there. The appellant Munna Paswan was armed with bhala whereas rest appellants were carrying lathi in their hands. Appellant Uday Narayan ordered the others to assault and also hurled tangi on him as a result of which he sustained injury on his head. Appellant Munna Paswan hurled bhala blow to his wife as a result of which she sustained injury on her leg. All the above stated appellants started raining lathi as a result of which he as well as his sons sustained injuries. Appellant Munna Paswan hurled bhala blow to his wife as a result of which she sustained injury on her leg. All the above stated appellants started raining lathi as a result of which he as well as his sons sustained injuries. After the aforesaid occurrence all the injured were taken to hospital for treatment. 3. On the basis of aforesaid fardbeyan Shahapur P.S. Case No. 11 of 1995 under Section 307 and other minor sections of the Indian Penal Code was registered and accordingly formal first information report was drawn up against the appellants. The matter was investigated and after completion of investigation. Charge-sheet was submitted against the appellants. The cognizance of the offence was taken and the case was committed to the Court of Sessions in usual way. All the appellants were put on trial and charges were framed against them for the offences punishable under Section 307 read with Section 149 of the Indian Penal Code and furthermore except appellants. Uday Narayan Paswan and Munna Paswan rest appellants were further charged for the offences punishable under Sections 323 and 147 of the Indian Penal Code whereas appellants. Uday Narayan Paswan and Munna Paswan were charged for the offences punishable under Sections 324 and 148 of the Indian Penal Code. The charges were read over and explained to the appellants to which they pleaded not guilty. 4. In course of trial altogether seven witnesses were examined on behalf of the prosecution and some documents were also got exhibited. The statements of appellants were recorded under Section 313 of the Cr PC in which they reiterated their innocence. 5. One defence witness was examined and the said witness proved rent receipts as Exhibit-A series. Besides it the defence also got exhibited some documents. 6. The learned trial Court having analyzed the evidences available on the record passed the impugned judgment of conviction and sentence order in the manner as stated above. 7. Learned counsel appearing for the appellants challenged the impugned judgment of conviction and sentence order arguing that learned trial Court committed error in convicting and sentencing the appellants. 6. The learned trial Court having analyzed the evidences available on the record passed the impugned judgment of conviction and sentence order in the manner as stated above. 7. Learned counsel appearing for the appellants challenged the impugned judgment of conviction and sentence order arguing that learned trial Court committed error in convicting and sentencing the appellants. He further submitted that according to prosecution case, the alleged occurrence took place when appellants were cutting tree standing on the plot No. 536 and furthermore, according to prosecution case itself, PW 5 as well as other injured of this case went on plot No. 536 to prevent the appellants from cutting the tree from the aforesaid plot. He further submitted that as a matter of fact. the appellants were in possession of the "aforesaid plot No. 536 from before the alleged occurrence and even if the prosecution story, as propounded by the prosecution "witnesses, assumed to be true, then also, the appellants had every right to protect their property because it was the prosecution party who committed criminal trespass and obstructed the appellants from cutting the tree from the above stated plot No. 536. He further submitted that Exhibit-C, the certified copy of order-sheets passed in miscellaneous Case No. 5/1994-1995, proves this fact that appellants were in possession of plot No. 536 since long. He further submitted that as a matter of fact no occurrence, as alleged by the prosecution witnesses, did ever take place and it was prosecution party who tried to prevent the appellants from cutting the tree and after that an altercation took place. So, even if the prosecution party sustained injuries in the aforesaid altercation, the appellants are entitled "to get the benefit of private defence. In support of his contention, he referred a decision reported in (1999) 3 SCC 102 in which the Apex Court of this country granted benefit of Section 104 of the Indian Penal Code to the accused when it was found that accused assaulted' the injured in exercise of right of private defence of his property. 8. In support of his contention, he referred a decision reported in (1999) 3 SCC 102 in which the Apex Court of this country granted benefit of Section 104 of the Indian Penal Code to the accused when it was found that accused assaulted' the injured in exercise of right of private defence of his property. 8. On the other hand learned Public Prosecutor supported the impugned judgment of conviction and sentence order submitting that prosecution witnesses No. 1 to 5 supported the prosecution case and all the aforesaid prosecution witnesses are injured of this case and apart from this, PW 6 has proved injuries found on the person of aforesaid prosecution witnesses and, therefore prosecution succeeded to prove its case beyond all shadow of reasonable doubts. 9. PW 1 Indradeo Paswan, PW 2 Ramnath Paswan and PW 3 Bir Bahadur Paswan are full brothers and sons of PW 5 whereas PW 4, Ramni Devi is wife of PW 5 who happens to be informant of this case. All the aforesaid PW 1 to PW 5 are said to be injured of this case and the above stated prosecution witnesses, specifically stated that when appellants, Awadh Bihari Paswan, Uday Narayan Paswan. Vidyapati Paswan and Gauri Shankar Paswan were cutting tree from the plot No. 536, the PW 5 and others went there and forbade the appellants to do so but the appellants assaulted them with different weapons causing injury to them. The above stated prosecution witnesses have admitted that ANJAR tree was standing on plot No. 536 area 10 kattha. Furthermore, almost all the prosecution witnesses admitted this fact that appellants were claiming that the aforesaid tree was standing on their land. The attention of PW 1, PW 2, PW 3 and PW 5 was drawn by the defence towards this fact that the land on which the above stated tree was standing, was measured by amin on the basis of petition given by PW 5. The attention of PW 1, PW 2, PW 3 and PW 5 was drawn by the defence towards this fact that the land on which the above stated tree was standing, was measured by amin on the basis of petition given by PW 5. Although, almost all the' above stated prosecution witnesses denied the aforesaid fact but Exhibit-C, the certified copy of order-sheets of Miscellaneous Case No. 5/1994-1995, reveals that PW 5 had given a petition before the District Magistrate for getting plot No. 536 area 10 kattha measured and on the basis of aforesaid petition, the circle officer and other officials enquired the matter and found that the PW 5 was not in possession of the aforesaid land rather appellants, Awadh Bihari Paswan and his family members were found in possession of the aforesaid land. The above stated Exhibit-C clearly indicates this fact that at the time of passing order dated 26.07.1994 in Miscellaneous Case No. 05/1994-1995, the appellant, Awadh Bihari Paswan and others were in possession of the disputed land and there is nothing on the record to show this fact that the appellant, Awadh Bihari Paswan and others were ever dispossessed from the aforesaid land after passing order dated 26.07.1994 in Miscellaneous Case No. 05/1994-1995. Moreover, it is admitted case of the prosecution that both parties were claiming their ownership in respect of the disputed plot No. 536 and when the appellants were cutting tree from the disputed plot No. 536, the informant (PW 5) and others went there to prevent them from cutting tree from the aforesaid plot and in the aforesaid circumstance altercation took place and PW 5 as well as other injured sustained injury. So even if the aforesaid fact assumed to be true then also the appellants had every right to protect their possession in respect of the disputed plot and if in protecting their possession on disputed plot they assaulted PW 5 and other injured, then also, the appellants are protected under Section 104 of the Indian Penal Code which gives right to a person to cause harm if a wrong doer commits or attempts to commit theft mischief or criminal trespass and, therefore learned counsel for the appellants rightly submitted that the appellants could not have been convicted for the above stated offences and the learned trial Court ought to have given benefit of right of private defence to them. 10. 10. PW 6 stated that on 19.01.1995 he examined injured persons of this case and found injuries on their person. The aforesaid witness proved injury reports as Exhibit-2 series. PW 6 further stated that all the injured had sustained simple injury except injured. Vishwanath Paswan (PW 5) who sustained three injuries and out of them opinion regarding one injury was kept reserved till receipt of X-ray report but admittedly, no X-ray report was produced before the trial Court and, therefore it is explicit clear that all the injured had received simple injury. Since all the injured including PW 5 sustained simple injury, so it cannot be said that the appellants exceeded in exercising their right of private defence. 11. Although, it appears from the impugned judgment that right of private defence was not claimed by the appellants in course of trial and their defence was total denial of prosecution story but it is settled principle of law that right of private defence can be raised even at the appellate stage. Furthermore, it is settled principle of law that right of private defence must be proved by the defence but in the instant case. prosecution witnesses themselves admitted this fact that the alleged occurrence took place on account of cutting of tree which was standing on plot No. 536 and Exhibit-C suggests that appellants were in possession of the aforesaid disputed plot No. 536 at the time of alleged occurrence and furthermore. the evidences of the prosecution witnesses suggest that prosecution party committed criminal trespass and obstructed the appellants from cutting tree from the aforesaid disputed plot and therefore it is apparent from the aforesaid materials that there is overwhelming material on the record to infer this fact that appellants assaulted the informant and other injured persons in exercise of their right of private defence to protect their property. 12. On the basis of aforesaid discussions I am of the opinion that the learned trial Court has committed error in convicting and sentencing the appellants and in my view the impugned judgment of conviction and sentence order cannot sustain in the eye of law. 13. Thus, this criminal appeal is allowed and impugned judgment of conviction and sentence order dated 11.09.2001 passed in Sessions Trial No. 214 of 1996 are, hereby set aside. The appellants are on bail. They are discharged from the liabilities of their respective bail bonds. Appeal allowed.