Madhya Pradesh High Court
Brijlal Kushwaha vs The State Of M.P. on 7 August, 2024
Author: Anuradha Shukla
Bench: Anuradha Shukla
1 CRA-2226-1998
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 7 th OF AUGUST, 2024
CRIMINAL APPEAL No. 2226 of 1998
BRIJLAL KUSHWAHA
Versus
THE STATE OF M.P.
Appearance:
Ms. Pushpanjali Dwivedi - Advocate as amicus curiae for the appellant.
Shri S. K. Rai - Government Advocate for the State.
Reserved on : 31.07.2024
Pronounced on: 07.08.2024
JUDGMENT
This criminal appeal has been preferred to challenge the judgment delivered on
3.9.1998 by Sessions Judge, Chhatarpur, in Sessions Trial No.260/1995 whereby
the appellant (hereinafter referred to as "accused") was held guilty of the offence
of Section 307 IPC and sentenced to five years rigorous imprisonment and fine of
Rs.1,000/- with a clause to further undergo six months additional rigorous
imprisonment in case of non-payment of fine.
2. Brief facts necessary for the decision of this criminal appeal may be summed
up, as on 17.8.1995 at around 6:00 p.m. accused was digging a pit to make
passage to the flowing water on which complainant Harprasad objected to
claiming that it would damage the wall of his adjoining house; a dispute arose
between the two; Gyasi, father of accused, asked the accused to give a blow to the
complainant with a spade, who accordingly gave a blow with the spade on the
head and other parts of the body by accused; the complainant screamed upon
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which his brother Lalaram arrived and rescued him; the FIR was registered and
the complainant was medically examined; he sustained total ten injuries in the
incident and the injury caused on parietal region was found to be dangerous to
life. After investigation, the charge-sheet was filed against accused and his father
Gyasi. They both faced the trial and by impugned judgment the accused was
convicted and sentenced as aforesaid while his father Gyasi was acquitted.
3. The grounds raised in this criminal appeal are that the judgment delivered by
the court below is contrary to law and against the facts as the evidence available
on record was not properly considered; there were material contradictions in the
testimony of complainant and there was no corroboration from any independent
witness. It was, therefore, prayed that the appeal should be allowed and the
accused should be acquitted.
4 . State has opposed the appeal claiming that the impugned judgment shows
reasoned assessment of evidence, therefore no interference is warranted.
5. Both the parties have been heard and the record of the trial court has been
perused.
6. The prosecution has examined total eight witnesses in this case and they are -
injured Harprasad (P.W.2), his brother Lalaram (P.W.3), Dr. J. P. Tiwari (P.W.7),
who prepared the MLC report, the surgical expert Dr. K. K. Chaturvedi (P.W.4),
witnesses to seizure-memo and arrest proceedings, namely Surendra (P.W.1) and
Lakhanlal (P.W.6), and finally the Investigating Officers, namely Satyaram Singh
(P.W.5) and S. P. Shukla (P.W.8). The defence has examined accused Brijlal and
Chhakaiyan as defence witnesses. The documentary evidence of Exs.P-1 to P-17
and D-1 to D-2 have also been placed on record.
7 . The statements of accused Brijlal given as defence witness no.1 reveal that
there was an admission by him about the incident though the narrated facts are
3 CRA-2226-1998
slightly different from the prosecution story. On the basis of this admission, it is
established that the accused was making passage for rainy water and the victim
Harprasad was objecting to it. The narrative of prosecution is that the accused then
attacked the victim with a spade while, according to accused, he was attacked first
b y b o t h Harprasad and his brother Lalaram and in this scuffle Harprasad
sustained injuries from a blow of spade which was given by Lalaram and not by
the accused. Further, according to him, injury was caused to him also though
admittedly there was no cross-FIR in the case.
8. This court has to examine to what extent the defence of accused has been
admitted by the prosecution in the case. According to accused Brijlal, to avoid
damage to the walls of the house on account of rainy water, his father Gyasi had
placed a wooden log on the road so that the soil may not erode with the rainy
water. He has further claimed that this wooden log was removed by victim
Harprasad and, therefore, a pit was formed on that place. He has stated that on
finding a pit there, he again placed the wooden log which made victim Harprasad
furious and a dispute started between them. Though these facts have been denied
by Lalaram (P.W.3), the brother of victim, but Harprasad (P.W.2), who is the sole
victim in this case, has admitted these facts to some extent.
9. According to Harprasad (P.W.2), Gyasi had placed a wooden log to avoid the
soil erosion so that the rainy water may flow above it without carrying the soil
away. It has also been admitted by Harprasad that the house of accused was on a
height and, therefore, soil erosion was severe near his house. Though he has
denied that the wooden log was removed by him but there is an admission in his
cross-examination that accused was resetting the wooden log on the same place. If
he were not responsible for removing the wooden log, then it is not clear why he
was so much objecting on its resetting. This conduct of victim Harprasad gives
4 CRA-2226-1998
support to the defence of accused that the wooden log, placed by his father to
prevent soil erosion from his house/land, was removed by victim Harprasad and
when accused Brijlal was refixing it, victim Harprasad took objection to it.
10. Lalaram (P.W.3), the brother of victim, has given a totally different narrative
to this incident. According to him, accused Brijlal was digging a ditch to give
passage to the rainy water and this ditch was just adjoining the wall of his house.
Further, this ditch was 4 to 5 hands deep. He has claimed that on account of this
ditch the water had logged into his house but no such statements were given by
this witness to the police during his case diary statement, marked as Ex.D-2, nor
the spot-map, marked as Ex.P-7, reveals the existence of such a deep ditch
adjoining the house of victim. It is also relevant to refer to the statement of victim
Brijlal (P.W.2) himself, wherein he has specifically revealed that no ditch was
digged by accused Brijlal and only a water-log was placed by him to channelise
the water flow and prevent the soil erosion. Thus, the statements of Lalaram
(P.W.3) are in material contradiction with the statements of victim Harprasad
(P.W.2). Incidentally, there is no other eyewitness to the incident.
11. Accused Brijlal has claimed that he was attacked first by the complainant side
and, during the scuffle, victim sustained injuries accidentally from the blow given
by his brother. Although this fact has not been corroborated by any witness nor
any cross-FIR was lodged in the case but the admission made by victim Harprasad
in para 7 of his cross-examination reveals that there was a scuffle for a duration of
almost five minutes before he sustained the injury. Thus, it was not a case where
the accused suddenly attacked the victim with the spade but the admission made
by victim himself suggests that both of them were trying to overpower each other
and then the injuries were caused to the victim.
5 CRA-2226-1998
12. From the foregoing analysis it is evidently clear that the water-log, which was
placed by the father of accused to prevent soil erosion from his house, was
removed by victim Harprasad and when accused tried to fix that water-log again,
he was obstructed and objected to by the victim resulting in a physical scuffle
between the two and then alone the victim sustained injuries in the incident. Thus,
it is a case where the victim was obstructing the accused in beneficial enjoyment
of his property and was also guilty of removing the water-log which was installed
by the father of accused to prevent soil erosion from his land/house.
13. Section 96 of IPC says that nothing is an offence which is done in the exercise
of the right of private defence and Section 97 of IPC further makes it clear that
every person has a right, subject to the restrictions contained in Section 99 of IPC,
to defend the property of himself against an act falling under the definition of
theft, robbery, mischief or criminal trespass. Here, the act of victim Harprasad
removing the wooden log planted by the father of accused to prevent soil erosion
comes within the category of mischief. Section 104 of IPC further makes it clear
that if the offence, the committing of which occasions the exercise of the right of
private defence, be theft, mischief or criminal trespass, that right extends, subject
to the restrictions mentioned in Section 99 of IPC, to the voluntary causing to the
wrongdoer of any harm other than death. The exceptions given in Section 99 of
IPC are not applicable here.
14. On the basis of foregoing discussion, it is established that the act of causing
injuries to victim Harprasad fall within the category of exercise of the right of
private defence of the property and was duly covered within the parameters of
Section 104 of IPC. Therefore, applying the right of private defence in this case,
the act of accused cannot be categorised as an offence.
15. On the basis of discussion made so far, the accused is acquitted of the charge
6 CRA-2226-1998
of Section 307 of IPC. He is on bail. His bail-bonds stand discharged.
16. The fine amount, if any, deposited by the accused be refunded to him.
17. A copy of this judgment along with its record be send to the trial court for
information and necessary compliance.
(ANURADHA SHUKLA)
JUDGE
ps
Date: 2024.08.08 11:26:14 +05'30'
