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2014 DIGILAW 649 (PAT)

State of Bihar v. Birja Sharma

2014-06-16

ANJANA PRAKASH, DHARNIDHAR JHA

body2014
JUDGMENT : DHARNIDHAR JHA, J.:–The present Govt. Appeal is directed against the judgment of acquittal dated 20.12.1990 passed by the learned 2nd Additional Sessions Judge, Aurangabad in Sessions Trial No.50 of 1979/17 of 1989 by which the learned trial Judge acquitted the two respondents of charge under Section 307/34 IPC. As regards respondent Birja Sharma, he was also acquitted of the charge under Section 27 of the Arms Act. 2. Some of the facts which could be gathered from the impugned judgment and the lower courts records are that it was not disputed that the informant and his witnesses were harvesting Khesari crop from plot no.1111 of 1126 situated at village-Balhama within Daudnagar police station in the District of Aurangabad. It was also not disputed that the respondents had come to the field to protest the uprooting of the ripe Khesari crop and that the informant and his men rebuffed the respondents causing them, specially, respondent Birja Sharma, to retreat to his house. 3. The allegation is that respondents Birja Sharma and Sarjug Rajwar appeared again armed respectively with a gun and lathi and accused Birja Sharma started firing shot indiscriminately causing pellet injury to the informant. On the basis the report lodged by the informant, examined in the court below as P.W.3, the FIR, was drawn up and after investigation the two respondents were sent up for trial which ultimately ended into their acquittal. 4. The defence of the respondents was that the field was in possession of respondent Birja Sharma and that the informant and his men were aggressors who had come over the land to uproot the ripe Khesarai and in order to repel the aggression acted in self defence. 5. As may appear from the records, the prosecution examined ten witnesses, out of whom, P.W.3 was the injured–informant, P.W.10 Saudagar Singh was witness who tendered in evidence the formal FIR as also the two seizure memos (Ext-4 series) and the case diary. The investigating officer of the case was not examined and as such, we do not have any evidence as to what was the objective finding as regards the place of occurrence. The investigating officer of the case was not examined and as such, we do not have any evidence as to what was the objective finding as regards the place of occurrence. However, the informant (P.W.3) appears supported by his son P.Ws.1 and 2 and some other persons, like, P.W.4 who claimed his presence on or around the place of occurrence on account of remaining present in his own field while cutting fodder for his animals. 6. The learned trial Judge after considering the evidence and making meticulous analysis of the same arrived at the conclusion that the prosecution had failed in establishing that the crop had enraged been raised by the informant. The court below, on the contrary, held that the evidence suggested that the crop had been raised by the accused and that the informant and his witnesses were aggressors and in order to repelling the aggressions the respondents had acted in self defence of their right to property. 7. After having heard both the sides and after having scanned the materials available to us, we want to record that there is no need to discuss the evidence as the prosecution had miserably failed in establishing that the plot in question, i.e., plot no.1126 which description came in the evidence of witnesses, like, P.Ws.1,2 and 3 was in possession of the accused persons. It appears that the accused persons were in possession of the plot in question from 7-8 years prior to the occurrence. The evidence undisputedly indicated that it were the informant and his men who were harvesting the ripe Khesari crop of the field of respondent no.1 Birja Sharma who come to resist the act, but rebuffed he soon reappeared with his gun to fire shots. Undisputedly, respondents had received injuries as appears discussed by the learned trial Judge in his judgment. But, the injuries were very superficial in nature which were present at the outer side of his right arm just below the shoulder and the other on the front and right side of the abdomen. The doctor had opined that the injuries were simple in nature. The learned trial Judge has held that the respondents especially respondent no.1 Birja Sharma has acted in exercise of right of private defence of the property. 8. The doctor had opined that the injuries were simple in nature. The learned trial Judge has held that the respondents especially respondent no.1 Birja Sharma has acted in exercise of right of private defence of the property. 8. The learned Additional Public Prosecutor has attempted to satisfy us that the fight was between two brothers and neigbhour Birja Sharma used a weapon as dangerous as gun as is evident from the evidence, and as such, the acquittal of the respondents for the offences under Section 307/34 IPC as also 27 of the Arms Act was completely perverse. 9. We want to recall some of the position of law as regards the exercise of right of private defence. In a criminal case entitlement to a person to the property is never germane. It is only his possession even if illegal which is a matter to be considered and as has been noted by this Court as also by the Apex Court other ‘settled possession’ in criminal law is completely different from what generally is perceived in civil law perspective. Here the prosecution evidence indicated that respondent no.1 was in possession and he had grown Khesari crop. The evidence also indicated that the informant and his men were the aggressors and that they had come over the land and were uprooting the crop raised by respondent no.1 who was rebuffed when he protested to the act of aggression by the informant. As may appear from the relevant provision like Section 96 to 100, the trespassers could be ejected by the person who is in rightful possession of the property by use of minimum force required under law. We have already referred to the medical evidence which was discussed by the learned trial Judge in paragraph-9 of the judgment and we have also noted that the injuries were superficial and simple. It is true that gun was fired. But we hold a view that the nature of the weapon which is used by a person in order to defend himself or to defend his properties in exercise of right of private defence is not the material if it is found reasonably that the accused persons had acted in exercise of their right of private defence. But we hold a view that the nature of the weapon which is used by a person in order to defend himself or to defend his properties in exercise of right of private defence is not the material if it is found reasonably that the accused persons had acted in exercise of their right of private defence. We find from the evidence that the act of the accused persons in firing shot or shots could not be said to have acceded under the facts and circumstances of the case. 10. Having said so we find that the judgment does not suffer from any perversity and, as such, the acquittal of the respondents does not require any interference by this Court. The appeal appears meritless and the same is dismissed. 11. This judgment could be delivered only with the assistance of Sri Manish Kumar No.13, an Advocate of this Court. We direct that he be paid one fee of hearing by the High Court Legal Services Committee and for that purpose, let the copy of the first and last pages of the present judgment be made over to him.