Jharkhand High Court
Lakshman Thakur vs The State Of Jharkhand on 7 August, 2023
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (SJ) No. 670 of 2004
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(Against the judgment of conviction and order of sentence, both dated
26.03.2004 passed by learned Additional Sessions Judge, (F.T.C No. 4),
Palamau.
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1. Lakshman Thakur
2. Naresh Thakur @ Ram Naresh Thakur
3. Deena Nath Thakur
4. Akhilesh Thakur
5. Pappu Thakur @ Uma Shankar Thakur
6. Unkar Thakur @ Om Prakash Thakur
7. Bhola Thakur
8. Santosh Thakur ....Appellants
-Versus-
The State of Jharkhand ....Respondent
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Appellants : M/s. Sarju Prasad, Anup Kumar, Advocates
For the Respondent : Mrs. Nehala Sharmin, A.P.P
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18/07.08.2023 Heard learned counsel for the parties.
2. This appeal is directed against the judgment of conviction and
order of sentence, both dated 26.03.2004, passed by learned Additional
Sessions Judge, (F.T.C No. 4), Palamau, whereby the appellants were
convicted for the offence punishable under Sections 148,308/149 and
325/149 I.P.C and sentenced to undergo R.I. for 3 years under Sections
308/149 I.P.C. No separate sentence has been awarded under Section
148,325/149 I.P.C
3. The prosecution case in brief is that on 23.07.2001, the informant
got information that the accused persons were ploughing his land. On
this information, the informant along with his family members reached
there and saw the accused persons, armed with Garasa and Lathi were
ploughing the field. On protest by the informant and his family members
from ploughing the field, the accused-appellants assaulted the informant
and his family members by means of Lathi and Garasa, causing injuries.
On hue and cry, several members of village reached there and brought
the injured persons to the police station.
4. Learned counsel for the appellants submits that the prosecution
has not come out with a true version and the occurrence took place in a
different manner. He further submits that no specific allegation has been
alleged against the accused persons that who assaulted whom by what
means. He further submits that when the informant came to the police
station in the case and when the Investigating Officer recorded his
Fardbeyan, why he has not drawn F.I.R. This shows the malice intention
of the prosecution party.
He further submits that there are several contradictions and
inconsistencies in the statement of the prosecution witnesses. The Doctor
(P.W.7) submitted the injury report which did not support the version of
the prosecution witnesses. As a matter of fact, the informant and his
person by making unlawful assembly armed with deadly weapon came at
the place of occurrence with a common intention for forceful
dispossession of the accused persons from the place of occurrence i.e.,
land and the informant and his person were the aggressor.
After the aforesaid arguments, learned counsel further raised a
legal issue on the question of private defence in this peculiar facts and
circumstances of the case.
5. Ms. Nehala Sharmin, learned A.P.P. for the State opposed the
prayer for acquittal and submits that no error has been committed by
learned trial court.
6. Having heard learned counsel for the parties and after going
through the documents available on L.C.R, it appears that during
pendency of this appeal the original appellant no. 7- Bhola Thakur died
and this appeal stood dismissed vide order dated 19.12.2018 on I.A No.
10958 of 2018, which was filed by the appellant.
Now coming on to the surviving appellants, it appears that the
informant received information that the accused persons were ploughing
the land; thus, he along with his family members went there and tried to
stop them. The case of the prosecution is that the accused persons, armed
with Garasa and Lathi, attacked them and the villagers and other family
member came and brought the informant to the police. However, no
medical proof of hurt or injury as stated by Prosecution witnesses is
corroborated by cogent evidence.
7. It further transpires that the prosecution has lost the title suit.
Although, the land was disputed land; the appellants were in possession
of the land and the said possession was given by the Court. The
prosecution witnesses themselves gave contradictory statements. The
record suggests that the informant and his person came at the place of
occurrence for forceful dispossession of the accused persons from the
place of occurrence i.e., land and the informant and his person were the
aggressor.
As a matter of fact, in the impugned judgment itself at Page-10
the learned trial court observed that in view of deposition of prosecution
witnesses there are contradictions in their statements that who assaulted
whom by what means. It has also been observed by learned trial court
that medical evidence has not supported the statement of prosecution
witnesses and admittedly the accused persons were ploughing their field
and the prosecution witnesses went at the place of occurrence and there
was a fight.
8. Further, the Investigating Officer in this case has not been
examined. There are no independent witnesses, even the villagers, who
came to save them were not examined. The Doctor (P.W.7), who
examined both the parties had opined that except the injury of P.W.1 all
the injuries of other injured were simple in nature.
From the record, it also transpires that in a counter case, which
has been filed by the appellants herein against the informant side,
wherein the informant side were convicted and they came before this
Court and filed Criminal Appeal (SJ) No. 678 of 2004, which was
allowed by this Court giving benefit of doubt to the appellants therein
(informant of this side). This Court in the said Criminal Appeal has
categorically held that the Investigating Officer has not been examined in
this case, has caused serious prejudice to the appellants, as they could
not draw attention of the Court by cross-examining the Investigating
Officer with regard to the manner of occurrence and regarding aggressor
of the incident and finally this Court granted relief to the appellants
therein, who are the prosecution side in the instant case for the same
cause of action. As such, on the very same cause of action in the counter
case the analogy taken by Coordinate Bench of this Court is being
accepted by me and for the said reason itself, the impugned judgment
requires interference.
9. Even otherwise, looking to the entire facts and circumstances of
the case the ground of private defence taken by learned counsel for the
appellants also finds substances; inasmuch as, the Hon'ble Apex Court in
the case of Darshan Singh vs. State of Punjab & another reported in
(2010) 2 SCC 333 has held as under:
"58. The following principles emerge on scrutiny of the following
judgments:
(i) Self-preservation is the basic human instinct and is duly
recognised by the criminal jurisprudence of all civilised countries.
All free, democratic and civilised countries recognise the right of
private defence within certain reasonable limits.
(ii) The right of private defence is available only to one who
is suddenly confronted with the necessity of averting an
impending danger and not of self-creation.
(iii) A mere reasonable apprehension is enough to put the
right of self-defence into operation. In other words, it is not
necessary that there should be an actual commission of the
offence in order to give rise to the right of private defence. It
is enough if the accused apprehended that such an offence is
contemplated and it is likely to be committed if the right of
private defence is not exercised.
(iv) The right of private defence commences as soon as a
reasonable apprehension arises and it is coterminous with the
duration of such apprehension.
(v) It is unrealistic to expect a person under assault to
modulate his defence step by step with any arithmetical
exactitude.
(vi) In private defence the force used by the accused ought
not to be wholly disproportionate or much greater than
necessary for protection of the person or property.
(vii) It is well settled that even if the accused does not plead
self-defence, it is open to consider such a plea if the same
arises from the material on record.
(viii) The accused need not prove the existence of the right of
private defence beyond reasonable doubt.
(ix) The Penal Code confers the right of private defence only
when that unlawful or wrongful act is an offence.
(x) A person who is in imminent and reasonable danger of
losing his life or limb may in exercise of self-defence inflict
any harm even extending to death on his assailant either
when the assault is attempted or directly threatened."
In the instant case also the fact shows that the appellants
were ploughing the field and the informant party came there. Since the
manner of occurrence has not been substantiated in absence of
examination of Investigating Officer, it cannot be said that who were
the aggressor, but right of private defence is always available subject
to the limitation as given in the aforesaid judgment.
10. Having regard to the aforesaid discussions, the impugned
judgment passed by the learned trial court requires interference.
Accordingly, the judgment of conviction and order of sentence, both
dated 26.03.2004 passed by learned Additional Sessions Judge, (F.T.C
No. 4), Palamau, is hereby, quashed and set aside. Consequently, the
instant appeal stands allowed.
11. The surviving appellants shall be discharged from the
liability of their bail bonds.
12. Let a copy of this order be communicated to the trial Court
and the LCR be sent to the court concerned forthwith.
(Deepak Roshan, J.)
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