Pramod Tiwari vs The State Of Madhya Pradesh
2023 Latest Caselaw 18348 MP

                                  1
 IN     THE      HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                          BEFORE
           HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                  ON THE 2 nd OF NOVEMBER, 2023
                 CRIMINAL REVISION No. 3680 of 2023

BETWEEN:-
PRAMOD TIWARI S/O SHRI GIRISH TIWARI, AGED
ABOUT 47 YEARS, OCCUPATION: AGRICULTURIST, R/O
VILLAGE OF JHARI P.S. HANUMANA DISTRICT REWA
(MADHYA PRADESH)

                                                               .....APPLICANT
(BY SHRI SUKHNANDAN PANDEY - ADVOCATE)

AND
THE STATE OF MADHYA PRADESH THROUGH P.S.
HANUMANA DISTRICT REWA (MADHYA PRADESH)

                                                            .....RESPONDENT
(BY SMT. VINEETA SHARMA - PANEL LAWYER)

      Heard on        : 26.10.2023
      Pronounced on: 02.11.2023

      This revision having been heard and reserved for orders, coming on for

pronouncement this day, the court passed the following:
                                   ORDER

This criminal revision has been filed to challenge the judgment passed by Second Additional Sessions Judge, Mauganj, district Rewa, on 8.8.2023 in Criminal Appeal No.21/2022 whereby the judgment of Judicial Magistrate First Class, Hanumana, district Rewa, passed on 30.3.2022 in RCT No.57/2022 was upheld on the point of conviction as well as sentence and the appeal was dismissed. In the light of these judgments, the applicant stands convicted for

the offence of Section 325 IPC and is sentenced to 1 year rigorous imprisonment along with fine of Rs.1,000/- with a clause to undergo additional rigorous imprisonment of 1 month, in case of non-payment of fine.

2. Brief facts of the prosecution case are that complainant Prahlad Mani Tiwari was in his field and his cattle were grazing on the mud-bound of that field; at around 4:00 p.m. on 7.9.1999 applicant Pramod Kumar Tiwari came there, along with another person and asked the complainant why he allowed his cattle to graze the crop of applicant; soon thereafter Girish Prasad Tiwari, the father of applicant, came there along with Mordhwaj Tiwari and Basant Kumhar and he too made similar allegations against the complainant; while they were

talking applicant Pramod Kumar started giving blows with his lathi to the complainant; Mordhwaj intervened but applicant did not stop; father of applicant was making exhortations; he was also giving abuses to the complainant; once leaving the place, applicant Pramod came back after sometime and again assaulted the complainant with lathi and some other weapon; the incident was witnessed by Pawan and Basant. The matter was reported to police on the same night and later a crime was registered in Police Station, Hanumana, district Rewa, at Crime No.90/99. After investigation, the charge sheet was filed and the trial court convicted and sentenced the applicant under Section 325 IPC. The father of applicant died during trial, therefore, proceedings against him were dropped. The appeal filed by applicant has been dismissed by the impugned judgment.

3. The grounds raised in this revision are that the judgment of conviction and sentence passed by the courts below is bad in law and procedure and contrary to the evidence available on record. The fact of old enmity was admitted by Prahlad Mani Tiwari. The complainant and the alleged eyewitnesses

Pawan and Basant were not examined by the prosecution, therefore conviction based on the testimony of Prahlad Mani Tiwari deserves to be set aside. The complainant failed to specify which of the two assailants caused him injury. There was a dispute between the parties about land and it was admitted by complainant that his cattle were grazing on the mud-bound of the lands belonging to the two parties. Only interested witnesses were examined to prove the prosecution story and conviction based on such testimony deserves to be interfered with. It is, therefore, prayed that the applicant be acquitted after allowing the revision petition.

4. State has opposed this criminal revision on the ground that there is no illegality or perversity in the impugned judgment, hence no interference is warranted.

5. Both the parties have been heard, records of both the courts below and the judgments have been perused.

6. To prove its case, prosecution has relied upon the testimony of five witnesses; of them Prahlad Tiwari (P.W.1) is the complainant and Basant Lal Prajapati (P.W.2) as well as Mordhwaj Tiwari (P.W.3) are the eyewitnesses; Basant has failed to corroborate the prosecution story during court testimony and he was not even declared hostile. Mordhwaj has claimed that he saw applicant Pramod Kumar and his father Girish assaulting complainant Prahlad

Mani with lathi and on account of this assault, Prahlad Mani sustained injuries in his hand. This testimony was recorded in the year 2006 and he has admitted in his cross-examination that he was having a dispute with the father of present applicant. The details of that dispute although are not available in his testimony but this admission on his part makes it clear that he has hostility with the

applicant on account of his personal interest, thus he cannot be categorized as an independent witness.

7. Now remains the sole testimony of Prahlad Tiwari (P.W.1) to prove the prosecution case. In his court testimony, complainant Prahlad Tiwari has changed the prosecution version by making omissions regarding the fact that he was asked by applicant and his father not to destroy their crop by grazing his cattle in their site of property. Here, the complainant has given a narrative that he was attacked by applicant and his father with lathi without any prior conversion between the two parties and after this assault, they drove away the cattle of complainant. According to this witness, he went unconscious after this assault and upon gaining consciousness, he came to his house from where he was taken by his father and brother to the police station to lodge the FIR, Ex.P-1. Thus, the fact of applicant returning to the place of incident and then again assaulting the complainant have also not been omitted in the court testimony of complainant. Thus, some of the important facts mentioned in FIR, marked as Ex.P-1, have not found any corroboration even in the court testimony of complainant.

8. The fact which has not been challenged in this case is that the cattle of complainant Prahlad Mani Tiwari were grazing on the mud-bound, which was separating the agriculture fields of the applicant and the complainant. It has been admitted by complainant Prahlad Tiwari (P.W.1) that he was having property dispute with the applicant from before this incident. FIR makes it specifically clear that applicant and his father objected to the act of grazing the cattle on the mud-bound but complainant refused to concede to their objection and continued with the complained act of grazing the cattle after claiming that the property belonged to him.

9. The spot map prepared by the Investigation Officer is marked as Ex.P- 2 and the place of incident i.e. the mud-bound area is shown as jointly owned by the two parties. Thus, from the prosecution case itself it is proved that the complainant was allowing his cattle to graze on a part of land which was jointly owned by him and the applicant's side and despite the objection of applicant and his father, the complainant did not yield to it and continued with his act by claiming that the property was solely owned by him. The FIR reveals that applicant was asking the complainant to stop his cattle to graze the crop grown by the applicant's side and as the complainant did not heed to this advise, the dispute converted into an assault in which complainant sustained injuries.

10. It is notable that despite making reference in FIR, Ex.P-1, to the conversation that was held between the applicant's side and the complainant, the court testimony of complainant Prahlad Tiwari (P.W.1) is completely silent about this conversation. The object of remaining silent appears to be that the complainant, acting more wisely, now found it suitable not to make any disclosure of this conversation which would have gone to show that he was damaging the crop of applicant's side by grazing his cattle thereon.

11. Section 96 of IPC provides that nothing is an offence which is done in exercise of the right of private defence and conjoint reading of Section 104 IPC makes it clear that the right of private defence of property extends to causing any harm other than death if this right is used for averting the commission of offence of theft, mischief or criminal trespass. Here, the act of complainant itself speaks that he was allowing his cattle to graze on the land which was jointly owned by the applicant's side and there is an admission on the part of complainant that there was a crop standing on the applicant's side of

field. It has also been admitted in FIR that the applicant had objected to the act of complainant by claiming that it was damaging his crop. Thus, the criminal act of causing injuries or grievous injury to the complainant in the exercise of right of private defence of property deserves protection under conjoint application of Sections 96 and 104 IPC, particularly in the light of the fact that first an oral objection was made by the applicant's side asking the complainant not to graze his cattle on the jointly owned land, and only after noticing his stubborn attitude and not heeding to the objection of applicant's side, there was a fallout of assault.

12. On the basis of above discussions of facts and evidence and also considering the law applicable here, this court is of the opinion that no criminal act was committed by the applicant in causing hurt or grievous hurt to the complainant Prahlad Mani. Accordingly, the applicant is acquitted of the offence of Section 325 IPC and this criminal revision is allowed.

13. The bail-bonds of applicant are discharged. The fine amount, if any,

deposited by him shall be refunded to him.

14. A copy of this order be send along with the records of the courts below for information and necessary compliance.

(ANURADHA SHUKLA) JUDGE ps

Digitally signed by PRASHANT SHRIVASTAVA Date: 2023.11.03 15:21:27 +05'30' Adobe Reader version: 11.0.8