Jharkhand High Court
Anil Kumar Sah @ Anil Kumar Sao vs State Of Jharkhand on 29 March, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Acquittal Appeal No. 64 of 2018
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Anil Kumar Sah @ Anil Kumar Sao, aged about 40 years S/o Jai Prakash
Sao, R/o Village-Harkhudih, P.O-Chhotki Kharagdiha+.P.S-Bengabad,
District- Giridih ..... Appellant
Versus
1. State of Jharkhand
2. Baijnath Sao, aged about 48 years, S/o Late Kesho Sao
3. Raju Sao, aged about 33 years, S/o Late Kesho Sao
4. Bhagirath Sao, aged about 50 years, S/o Late Kesho Sao
5. Chintaman Sao, aged about 40 years, S/o Late Kesho Sao
6. Basanti Devi, aged about 42 years, W/o Baijnath Sao
7. Lilawati Devi, aged about 35 years, W/o Bhagirath Sao
8. Sarita Devi, aged about 30 years, W/o Chintaman Sao
9. Bebi Devi, aged about 35 years, W/o Raju Sao
All R/o Village-Harkhudih, P.O - Chhotki Kharagdiha, P.S-Bengabad,
District-Giridih ...... Respondents
PRESENT
HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
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For the Appellant : Mr. Arwind Kumar, Advocate
For the State : Mr. Jitendra Pandey, APP
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ORDER
29th March 2023
Per, Shree Chandrashekhar,J.
This acquittal appeal has been filed to challenge the judgment
of acquittal of Bhagirath Sao, Chintaman Sao, Basanti Devi, Lilawati Devi,
Sarita Devi and Bebi Devi in Sessions Trial No. 462 of 2009 and acquittal
of Baijnath Sao and Raju Sao in Sessions Trial No.99 of 2011, both passed
by the District & Additional Sessions Judge-IV, Giridih on 23rd June 2018.
2. We have reservations on entertaining the present acquittal
appeal in which two separate judgments passed in two sessions trials have
been challenged by the informant. However, having regard to the order
dated 31st July 2019 by which notices have been issued to the private
respondent nos.2 to 9, and on insistence of Mr. Arwind Kumar, the learned
counsel for the appellant that the evidences tendered by the prosecution
2 Acquittal Appeal No. 64 of 2018
witnesses in both the sessions trials are identical and on the same lines, we
have proceeded to hear this acquittal appeal on merits.
3. The only plea raised on behalf of the informant is that on the
ground that there was a land dispute between the parties the respondent
nos.2 to 9 (hereinafter referred as the respondents) could not have been
acquitted of the charge of forming an unlawful assembly in furtherance of
common object of which murderous attacks were made on Anil Kumar Sao
and other prosecution witnesses. Mr. Arwind Kumar, the learned counsel for
the appellant would submit that the respondents who are the aggressors
cannot claim the right of private defence to escape criminal liability.
4. The case of the prosecution is that on 9th July 2009 Baijnath
Sao, Raju Sao, Bhagirath Sao, Chintaman Sao, Basanti Devi, Lilawati Devi,
Sarita Devi and Bebi Devi all armed with deadly weapons assaulted Anil
Kumar Sao, Jai Prakash Sah, Santosh Sah and Savitri Devi in prosecution of
common object of unlawful assembly and caused grievous hurt to Anil
Kumar Sao and Jai Prakash Sah and have attempted to cause their death.
5. Anil Kumar Sao is the informant of this case who gave a
written report to the officer-in-charge of Bengabad PS on 9 th July 2009
making specific allegations against Bhagirath Sao, Chintaman Sao, Baijnath
Sao, Raju Sao and their wives who arrived at Plot No.942 within Khata
No.17 of Mauza-Harkhudih and started ploughing the said field.
Whereupon, Anil Kumar Sao alongwith his father, brother and mother went
there and objected to the accused persons ploughing their field. According to
the informant, Chintaman Sao gave axe blows on the head of Santosh Sao;
Bhagirath Sao also intended to gave iron rod blow on the head of Jai
Prakash Sao whereupon he fell on the ground and thereafter the respondents
started hitting him which caused fracture in his leg and hand. The informant
has further stated that Raju Sao assaulted him and Baijnath Sao gave farsa
blow on the head of his mother.
6. The allegations against the wives of the aforementioned
accused persons is that they started pelting bricks and stones and caused
injuries to the informant and his other family members.
7. On the basis of the written report of Anil Kumar Sao, Bengabad
PS Case No.104 of 2009 was drawn against the accused persons under
3 Acquittal Appeal No. 64 of 2018
sections 147, 148, 149, 323, 324, 337, 325 and 307 of the Indian Penal
Code.
8. Initially a charge-sheet was laid against six persons on
8th September 2009 and Sessions Trial No.462 of 2009 was registered. Later
on, supplementary charge-sheet no.39 of 2010 was laid against Raju Sao and
Baijnath Sao who have faced the trial in Sessions Trial No.99 of 2011.
9. In both the sessions trials, similar charges under sections 147,
148, 307/149, 325/149, 323/149 and 337/149 of the Indian Penal Code were
framed against the accused persons.
10. In both the sessions trials, the prosecution has examined
9 witnesses out of whom Dr. Amresh Kumar and Dr. Sashi Bhusan
Choudhary are the medical persons who have proved injury reports and
supplementary injury reports.
11. The defence set up by the respondents is of exercise of the right
of self defence of their person and property. The respondents put forth a
claim that the disputed property was in their possession and to establish this
claim the testimonies of Santosh Kumar Sao and Anil Sao in Sessions Trial
No.462 of 2009 were laid also in evidence in Sessions Trial No.99 of 2011.
12. The trial Court has held as under:
"30. Defence has suggested to prosecution witnesses that
informant party have assaulted to the accused persons and caused
serious injuries on their persons. I find that although the
prosecution witnesses have denied injury to the accused persons
but they have admitted counter case by accused persons for the
occurrence of the same day. I further find that PW 3 in para 3 of
his evidence has admitted that he had seen to accused Baijnath
Sao in the hospital. However, he also denied seeing injury on the
body of Baijnath Sao but defence has brought deposition of Dr.
Amresh Kumar, Medical Officer of PHC, Bengabad Ext. C) which
goes to show that on 09.07.2009, accused Chintaman Sao and
Baijnath Sao were examined at about 8.45 and 9.30 A.M and
three injuries (one lacerated wound on the front side of head, one
swelling on left wrist and one swelling in the right arm) was found
to Baijnath Sao and three injuries (one swelling on left elbow
joint side, one bruise on upper part of right thigh and one
abrasion on lower part of right side of back) was found to
Chintaman Sao. On perusal of injury reports and Ext C, I find that
all injured were brought hospital almost at the same time (in
between 8.45 to 9.55) and they were examined in the same
hospital by the same doctor. This circumstance suggests that
informant party have tried to conceal injuries sustained to
accused party in the occurrence, but medical evidences proves
injuries on the body of Baijnath Sao and Chintaman Sao also on
the day of occurrence. Therefore, injuries on the body of two
accused persons as well as counter FIR against informant party
4 Acquittal Appeal No. 64 of 2018
by accused Chintaman Sao are also established and proved in this
case.
31. Thus, on the basis of and oral testimonies of
prosecution witnesses as well as evidence of DW1, circumstances
of the case and medical evidences, it is proved that both parties
have participated in the occurrence and has received injuries by
the hands of another and hence, occurrence of assault between
the parties on the same day, time and place is established and
proved beyond all the reasonable doubts."
13. Chapter-IV of the Indian Penal Code provides general
exceptions to the offences under the Code. Section 96 provides that nothing
is an offence which is done in the exercise of the right of private defence.
Section 97 explains the right of private defence of the body and of property
by laying down the extent to which such a right can be exercised by a
person. This further provides that there shall be no right of private defence
against the acts which are provided under section 99. What is the most
material provision for consideration of the case set up by the rival parties is
sections 101 and 102 of the Indian Penal Code.
14. Sections 96, 97, 99 and 101 of the Indian Penal Code are
extracted below:
"96. Things done in private defence.--Nothing is an offence
which is done in the exercise of the right of private defence.
97. Right of private defence of the body and of property.--Every
person has a right, subject to the restrictions contained in section
99, to defend--
First.--His own body, and the body of any other person,
against any offence affecting the human body;
Secondly.--The property, whether movable or immovable,
of himself or of any other person, against any act which is an
offence falling under the defintion of theft, robbery, mischief or
criminal trespass, or which is an attempt to commit theft, robbery,
mischief or criminal trespass.
99. Acts against which there is no right of private defence.--
There is no right of private defence against an act which does not
reasonably cause the apprehension of death or of grievous hurt, if
done, or attempted to be done, by a public servant acting in good
faith under colour of his office, though that act, may not be
strictly justifiable by law.
There is no right of private defence against an act which
does not reasonably cause the apprehension of death or of
grievous hurt, if done, or attempted to be done, by the direction of
a public servant acting in good faith under colour of his office,
though that direction may not be strictly justifiable by law.
There is no right of private defence in cases in which there
is time to have recourse to protection of the public authorities.
Extent to which the right may be exercised.--The right of
private defence in no case extends to the inflicting of more harm
than it is necessary to inflict for the purpose of defence.
Explanation 1.--A person is not deprived of the right of private
5 Acquittal Appeal No. 64 of 2018
defence against an act done, or attempted to be done, by a public
servant, as such, unless he knows or has reason to believe, that
the person doing the act is such public servant. Explanation 2.--A
person is not deprived of the right of private defence against an
act done, or attempted to be done, by the direction of a public
servant, unless he knows, or has reason to believe, that the person
doing the act is acting by such direction, or unless such person
states the authority under which he acts, or if he has authority in
writing, unless he produces such authority, if demanded.
101. When such right extends to causing any harm other than
death.--If the offence be not of any of the descriptions enumerated
in the last preceding section, the right of private defence of the
body does not extend to the voluntary causing of death to the
assailant, but does extend, under the restrictions mentioned in
section 99, to the voluntary causing to the assailant of any harm
other than death."
15. Under section 101, the right to private defence of the body
extends to the voluntary causing to the assailant any harm other than death,
except the descriptions enumerated in section 99. In "Karnail Singh v. State
of Punjab" 1994 SCC (Cri) 273 the Hon'ble Supreme Court has observed
that when a right of private defence is pleaded the limitations contained in
sections 99 and 100 of the Indian Penal Code have to be kept in view.
16. There is a reference of a counter case in respect of which
the trial Judge has recorded a finding that the prosecution party has
admitted institution of counter case by the accused persons into the incident
of 9th July 2009. On behalf of the respondents, Dr. Amresh Kumar was
examined as DW1 in Sessions Trial No.99 of 2011 to prove the injury
reports of Baijnath Sao and Chintaman Sao who according to the
respondents have suffered injuries in the same occurrence. The testimony of
Dr. Sashi Bhusan Choudhary who was examined as PW9 in Sessions Trial
No.462 of 2009 has also been brought on record of Sessions Trial No.99 of
2011. Dr. Amresh Kumar who tendered evidence as PW8 in Sessions Trial
No.99 of 2011 has admitted in his cross-examination that he medically
examined Baijnath Sao and Chintaman Sao on the same day and has issued
injury reports. Now this is a matter of record that Baijnath Sao who is the
respondent no.2 and Chintaman Sao who is the respondent no.5 in the
present acquittal appeal have suffered injuries in the same occurrence while
four members of the prosecution party have also suffered injuries. This is
also a matter of record that in Sessions Trial No.462 of 2009 Santosh Kumar
Sao has admitted that both parties are agnates and have half shares in the
disputed property.
6 Acquittal Appeal No. 64 of 2018
17. As DW1, Dr. Amresh Kumar has tendered evidence in Sessions
Trial No.99 of 2011 that on examination of Baijnath Sao he found the
following injuries on his person:
"(i) Lacerated wound found on the front side of head size 1" x
1/4" x 1/6" scalp deep blood clotted.
(ii) Painful swelling of left wrist as a whole size 4" x 4".
(iii) Mild swelling of right arm and above the wrist 1" x 2½"."
18. According to this witness, Baijnath Sao was referred for X-ray
of skull "AP and lateral view" and X-ray of left wrist "AP and lateral view"
to Sadar Hospital, Giridih. He has deposed in the Court that all injuries
found on the person of Baijnath Sao were caused within 12 hours by hard
and blunt substance - injury no.3 was simple in nature.
19. As DW1, the doctor has further deposed in the Court that he
found the following injuries on the person of Chintaman Sao who was
examined by him on police requisition:
"(i) Painful swelling on left elbow joint size 5" x 5''.
(ii) Bruise on upper part of right thigh size 6" x 4½" brown black
in colour.
(iii) Abrasion on lower part of right side of back 11"x1/6" x 1/8"
brown in color."
20. According to this witness, for X-ray of left elbow "AP and
lateral view" Chintaman Sao was referred to Sadar Hospital, Giridih. He has
deposed in the Court that injury nos. (ii) and (iii) were simple in nature and
all injuries were caused by hard and blunt objects.
21. This is the prosecution evidence that Bhagirath Sao and
Chintaman Sao were ploughing the field which was objected to by Anil
Kumar Sao and his father Jai Prakash Sao. But this is not the evidence of the
prosecution witnesses that Bhagirath Sao and Chintaman Sao were carrying
arms when they had gone to plough the field. The prosecution story is that
when Anil Kumar Sao and his father objected to ploughing of the field then
Baijnath Sao, Raju Sao, Bhagirath Sao and Chintaman Sao started marpit
and the female folks of their family also started pelting bricks and stones.
According to the prosecution, one of the injuries caused to Anil Kumar Sao
was grievous in nature. However, the trial Judge has held that the
prosecution has failed to establish that Anil Kumar Sao suffered grievous
injury.
22. In Sessions Trial No.462 of 2009, the trial Court has discussed
7 Acquittal Appeal No. 64 of 2018
the prosecution evidence in the following manner:
"33. So far the charges against accused persons are
concerned, I find that prosecution witnesses have deposed that
accused Bhagirath Sao has intended blow in the head of Jai
Prakash Sao who fell down and then accused persons have given
rod blow in his right leg and other parts of body. Prosecution
witness have deposed that accused Bhagirath Sao with intention
to commit murder of Jai Prakash Sao has intended to give iron
rod blow in his head who fell down on the ground and then
accused persons have brutally assaulted him. On perusal of injury
reports I find no injury to Jai Prakash Sao on his head or on any
vital part of his body. Had accused intention to caused death of
Jai Prakash Sao, they certainly give blows in his vital parts like
head etc. especially when he was fell down on the ground and was
not in position to run. These circumstances clearly suggest that
accused persons have no intention to commit murder of Jai
Prakash Sao. I further find no injury on the vital part of the body
of Anil Kumar Sao also and only swelling and bruise on his knee
and elbow were found. I find that lacerated wound on the right
side of head of Santosh Kumar and left side of head of Savitri
Devi but there is no repetition of blows in the vital part of body of
these persons also. Thus, I find that evidences are not sufficient to
prove charges U/S 307 of the IPC against the accused persons. I
further find that use of deadly weapons is not proved in this case
and hence, charges U/S 326 or 324 of the I.P.C cannot be
established against accused persons. Since, accused persons were
ploughing field and it was the informant party, who had gone to
object them. Therefore, circumstances of the case, can not suggest
that accused persons have formed unlawful assembly with
intention to commit assault to the informant party. Therefore,
charges U/S 147, 148 and 149 also cannot be proved against
accused persons in this case.
34. So far the charges u/s 325 of the I.P.C is
concerned, fracture in the right ankle with dislocation was found
to Jai Prakash Sao but no corresponding superficial injury is
mentioned in the injury report. PW 7 has found only swelling near
right ankle. PW9 has found dislocation also in the ankle and all
prosecution witnesses has admitted that Jai Prakash Sao was fell
down in the ground during the occurrence. Under these
circumstances, when no superficial corresponding injury was
found in the ankle of Jai Prakash Sao and only swelling with
dislocation was found, then there may be possibility of fracture in
the ankle due to felling on the grounds and not by assault of
accused persons and hence there is bonafide doubt in favour of
accused persons for the charges u/s 325 of the I.P.C. under the
facts and circumstances of the present case.
.........................................................................................................
.........................................................................................................
35. ........................... Thus, I find that PW4, 5 and 6 all
have stated that accused Chintaman Sao and Baijnath Sao were
ploughing the field. I further find that these two accused persons
Baijanath and Chintaman have received injuries in the
occurrence from the accused side. I find that informant party had
gone to object to accused persons in ploughing fields. Injuries to
only accused persons, who were ploughing field may suggest that
informant party have assaulted to those persons who were
ploughing field and upon that accused party have assaulted to the
informant party and caused hurt on their person. ..................."
8 Acquittal Appeal No. 64 of 2018
23. Having regard to the long standing land dispute, the manner of
occurrence and weapon used by members of both the sides, it is not difficult
to form an opinion that in a free-fight which ensued after Anil Kumar Sao
and his father objected to ploughing of field by Bhagirath Sao and
Chintaman Sao four persons on the prosecution side and two of the accused
persons have suffered injuries.
24. A case on the point is "Kashi Rai v. State of Bihar" 1994 Supp
(1) SCC 551 wherein the Hon'ble Supreme Court has held as under:
"6. ... But taking into consideration all the facts and surrounding
circumstances of the case to us it looks as though it was a free
fight where both the parties collected into groups with the
determination to fight. In such a situation as to who started the
fight is not very material.
7. In such a situation though it can be held that there was an
unlawful assembly to the extent of committing rioting but the
common object of every member of the unlawful assembly cannot
be said to commit murder. In a case of free fight of such nature,
the assailants should be liable for their individual acts and it may
be unsafe to convict all of them by applying Section 149 for the
offence of murder. ..."
25. In "State of Haryana v. Chandvir" (1996) 8 SCC 678 also the
Hon'ble Supreme Court has held that in case of free-fight, the provisions
under section 149 of the Indian Penal Code cannot be applied to fasten
criminal liability on all the accused who even though were part of the
assembly.
26. From the materials on record, we find that the respondents have
demonstrated through the prosecution evidence that injuries to Jai Prakash
Sao, Anil Kumar Sao, Santosh Kumar Sao and Savitri Devi were caused in
exercise of right of private defence of their person. In "Wassan Singh v.
State of Punjab" (1996) 1 SCC 458 the Hon'ble Supreme Court has
observed that the reasonable apprehension of the accused that grievous hurt
will be caused to him must be judged from the subjective point of view of
the accused and cannot be subjected to microscopic and pendantic scrutiny.
This is also well-settled a proposition in law that even though a right to
private defence has not been specifically pleaded by the accused, if
existence of such a right appears from the materials on record, the Courts
are bound to extend such benefit to the accused. This is an admitted fact in
the present case that Baijnath Sao has suffered one lacerated wound over
front side of his head in the same occurrence. Section 102 of the Indian
9 Acquittal Appeal No. 64 of 2018
Penal Code provides that the right of private defence of the body
commences as soon as a reasonable apprehension of danger to the body
arises from an attempt or threat to commit the offence though the offence
may not have been committed; and it continues as long as such
apprehension of danger to the body continues. Therefore, the law permits
the person who apprehends danger to the body or who has suffered assault
to ward off attack and to cause such injury to the assaulter which is
necessary in self-defence. Now in a situation like this if few injuries were
caused to the members of the prosecution party, that shall not attract any
criminal liability to the respondents.
27. After having thus examined the materials on record, we find no
infirmity in the judgments rendered in Sessions Trial No. 462 of 2009 and
Sessions Trial No.99 of 2011 and, accordingly, Acquittal Appeal No. 64 of
2018 is dismissed.
28. Let a copy of the judgment be transmitted to the Court
concerned through 'FAX'.
(Shree Chandrashekhar, J.)
(Ratnaker Bhengra, J.)
Jharkhand High Court, Ranchi
Dated: 29th March, 2023
R.K.-N.A.F.R
