Judgment:
N.K. Mody, J.
1. Being aggrieved by the judgment dated 17-10-2002 passed by ASJ, Barwah, District West Nimar in S.T. No. 411/2001, whereby the appellants were convicted for the offence punishable under Sections 307/34 and 324/34 of IPC by sentencing them to undergo five years imprisonment with fine of Rs. 5,000/- each and one year imprisonment with fine of Rs. 2,000/- each respectively, the present appeal has been filed.
2. In short the case of prosecution was that on 6-9-2001 complainant/Bhairam alongwith his brother Shriram and their wives Shantibai and Narmadibai were pouring water in their field, at that time at about 1.00 p.m. appellant/Hariram was fixing the motor from the river. It was alleged that complainant/Bhairam asked the appellant/Hariram not to fit the motor, upon which appellant/Hariram abused the complainant in a filthily language and also assaulted by Gupti (a sharp edged weapon). Further case of the prosecution was that at that time appellant No. 2/Bhaiyalal came on spot armed with Darata and assaulted the complainant/Bhairam with the result complainant/Bhairam sustained injuries in his partial region. Further case of the prosecution was that Shantibai wife of the complainant and Shriram along with his wife/Narmadibai came to the rescue of the complainant/Bhairam but they were also assaulted. It was alleged that upon the complaint after investigation charge-sheet was filed. After framing of charges and recording of evidence, appellants were convicted as stated above, against which the present appeal has been filed.
3. Learned Counsel for the appellants submits that appellants were convicted illegally while appellants have not committed any offence. It is submitted that the learned Court below committed error in not properly appreciating the evidence which resulted incorrect judgment and is liable to be set aside in this appeal. It is submitted that the learned Court below committed error in not considering material omissions and contradictions appearing in the testimony of the prosecution witnesses. Learned Counsel further submits that the appellants also sustained injuries and upon the complaint of appellants case was registered against the complainant/Bhairam and Shriram for the offence punishable under Sections 294, 324/34, IPC at Crime No. 357/01 and was committed to the Court of Sessions upon which case was registered as S.T. No. 115/2002. It is submitted that complaint of the appellants is prior in time as it was registered at Crime No. 357/2001, while complaint against the appellants was registered at Crime No. 358/01. It is submitted that since complainant party was aggressor and there was free fighting in which appellants also sustained injuries, therefore, appellants cannot be punished as appellants caused injuries in self defence. For this contention learned Counsel placed reliance on a decision in the matter of Deo Narain v. State of U.P. : AIR 1973 SC 473, wherein Hon'ble Apex Court held that right of private defence rests on the general principle that where a crime is endeavoured to be committed by force, it is lawful to repel that force in self-defence. To say that a person could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in Section 102. The right of private defence is available for protection against apprehended unlawful aggression and not for punishing the aggressor for the offence committed by him. If after sustaining a serious injury there is no apprehension of further danger to the body then obviously the right of private defence would not be available. Therefore, as soon as a reasonable apprehension of danger arises, the right of private defence can be exercised. Again, the nature of apprehension depends upon the use of the weapon as also the manner in which the weapon is used. Merely because the complainant's party had used lathis, it cannot be said that the accused was not justified in using his spear, particularly, when a blow with a lathi was aimed at a vulnerable part like the head. Further reliance is placed on a decision in the matter of Lakshmi Singh v. State of Bihar : AIR 1976 SC 2263, wherein Hon'ble Apex Court held that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
(1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one.
There may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweights the effect of the omission on the part of the prosecution to explain the injuries.
4. Reliance is also placed on a decision in the matter of Puran Singh v. State of Punjab : AIR 1975 SC 1674, wherein Hon'ble Apex Court observed that the right of private defence of person or property is to be exercised under the following limitations:
(i) that if there is sufficient time for recourse to the public authorities the right is not available;
(ii) that more harm than necessary should not be caused;
(iii) that there must be a reasonable apprehension of death or of grievous hurt to the person or damage to the property concerned.
It is not the law that a person when called upon to face an assault must run away to the police station and not protect himself or when his property has been the subject matter of trespass and mischief he should allow the aggressor to take possession of the property while he should run to the public authorities. Where there is an element of invasion or aggression on the property by a person who has no right to possession, then there is obviously no room to have recourse to the public authorities and the accused has the undoubted right to resist the attack and use even force if necessary. The right of private defence of property or person, where there is real apprehension that the aggressor might cause death or grievous hurt to the victim, could extend to the causing of death also, and it is not necessary that death or grievous hurt should actually be caused before the right could be exercised. A mere reasonable apprehension is enough to put the right of private defence into operation.
5. Lastly reliance is placed on a decision in the matter Jasbir Singh v. State of Punjab AIR 1993 SC 968, wherein quarrel over taking water from tubewell for irrigation, deceased picking up quarrel with accused by preventing him from taking water. Accused firing shot in exercise of right of private defence killing deceased, Hon'ble Apex Court held that conviction altered from Section 302 of the IPC to Section 304 of the IPC. In view of the aforesaid position of law and the facts and circumstances of the case, learned Counsel submits that the appeal filed by the appellants deserves to be allowed and the judgment of conviction deserves to be set aside.
6. In alternative learned Counsel for the appellants submit that appellants were in jail during trial w.e.f. 18-9-2001 to 28-9-2001 and again in jail after conviction from 17-10-2002 to 29-10-2002 when the jail sentence was suspended by this Court. It is submitted that appellants were in jail for a total period of 22 days. It is submitted that looking to the nature of offence and the fact that appellants have already served substantive part of jail sentence, the same may be reduced to the period already undergone and the amount of line may reasonably be enhanced.
7. Learned Counsel for respondent/State submits that after due appreciation of evidence, learned Court below has found the offence proved against the appellants, which requires no interference. It is submitted that the appeal filed by the appellants be dismissed.
8. From perusal of the record, it is evident that to prove the offence prosecution filed the documents (Exh. P-1 to Exh. P-35) and has also examined Bhairam (P.W. 1), who was injured, Shriram (P.W. 2), Dr. K.K. Shrivastava (P.W. 3), Revaram (P.W. 4), Basant Kumar Verma (P.W. 5), Dr. Pramod Kumar (P.W. 6), Kanhaiya (P.W. 7), Dr. B.R. Bansal (P.W. 8), Shantabai (P.W. 9), Narmadabai (P.W. 10), Dr. Vijay Upadhyay (P.W. 11), Yashpal Singh Thakur (P.W. 12), Madanlal (P.W. 13), Kailashsingh (P.W. 14) and Dr. Ganesh Kumar (P.W. 15).
9. This Court has to examine whether the appellants were rightly convicted for an offence punishable under Sections 307, 307/34, 324, 324/34 of IPC or the appellants are entitled for acquittal on account of self defence.
10. Bhairam (P.W. 1) is one of the injured who has stated that on the date of incident at about 3.00 p.m. he was going to his field, his brother Shriram and his wife Narmadabai and also Shantibai wife of Bhairam deponent were already on the field. He has further stated that for the purpose of pouring the water in the field there is a motor fitted on the bank of the river. It is further stated that he was inserting the wires to operate the motor for which he was refused, upon which appellants abused and appellant No. 1 Hariram assaulted by a Gupti (a sharp edged weapon) on his abdomen and Bhaiyalal assaulted by Darata.
11. The statement of Bhairam (P.W. 1) has further corroborated by the statement of Shriram (P.W. 2), Shantabai (P.W. 9) and Narmadabai (P.W. 10). All the four persons are injured. Medical report of the complainant Bhairam is Exh. P-32, wherein it is stated that wound of the patient was grievous in nature and dangerous to life. This report has been given by Dr. Ganesh. Exh. P-2 is the medical report of Shriram, according to which Shriram sustained four injuries and he was referred for admission. Exh. P-3 is the medical report of Shantabai who happens to be wife of Bhairam complainant, who sustained two injuries. Exh. P-4 is the medical report of Narmadabai. In the statement of Dr. K.K. Shrivastava, who was examined as P.W. 3 who has examined Shriram, it has been stated that Shriram sustained five injuries, out of which two injuries were sustained by him in the elbow of both the hands, while one injury was in parietal reason, which was having a depth to the bone. Apart from this injured Shriram also sustained one injury on the left side of chest and it was step wound. He has also stated that some of the injuries were caused by sharp edged weapon. Dr. Pramod Kumar who was examined as P.W. 6 has stated that the injuries were caused by hard weapon. The intestine of the stomach of the patient came out and he was operated. He has further stated that the intestine were having cut from three places. It was further stated that the pulse rate of the complainant Bhairam was 66 and the injuries were grievous in nature.
12. To prove that the injuries were caused to the complainant and the members of his family because they assaulted the complainant and the complainant party was aggressor suggestion given to all the witnesses of complainant party. Apart from this in cross-examination it has also come that upon the complaint lodged by the appellants the complainant party were also prosecuted. To prove the injuries sustained by the appellants, appellants have produced the medical report of appellant No. 1 Hariram and appellant No. 2 Bhaiyalal s/o Gendalal, which are marked as Exhs. D-4 and D-5. These documents have been proved by the appellants by cross-examining Dr. K.K. Shrivastava (P.W. 3), who has stated that Hariram sustained injuries on his head which was simple in nature. It was also stated that he has also examined Bhaiyalal who sustained three injuries, out of which two injuries were on the wrist of both the hands, which was contusions and third injury was on head which was also contusion. He has further stated that the injuries sustained by Bhaiyalal appellant No. 2 was simple in nature.
13. In the cross-examination of all the relevant witnesses, who were present on spot, it has come that the dispute was relating to the irrigation of field, as the appellants were trying to install the motor in the river which was obstructed by the complainant. Undoubtedly for the purpose of irrigation of field the water was to be taken from the river, which was the public properly and was neither belonging to the complainant nor to the appellants. Even if it is assumed that the appellant party was restrained to use the water from the river and also some injuries were caused to the appellant party, then too, the appellants were free to approach the Public Authorities and also could use the force to defend themselves, but appellants were having no authority to cause grievous injuries to the complainant party.
14. In view of this, this Court is of the view that the learned Court below has rightly held that no right to defence was available to the appellants. After taking into consideration all the evidence on record and keeping in view the injuries sustained by the complainant party, this Court is of the view that no illegality has been committed by the learned Trial Court in convicting the appellants under Section 307, 307/34, 324, 324/34 of IPC.
15. So far as sentence is concerned, keeping in view the injuries sustained by the complainant party and the circumstance in which the offence took place, this Court is of the view that the jail sentence for a period of three years shall suffice the purpose. In view of this, appeal filed by the appellants is allowed in part. While maintaining the conviction the jail sentence is reduced to three years instead of five years.
With the aforesaid observations, appeal stands disposed of.
C.C. as per rules.