State of M.P. vs Ghasita and Another

S.S. Dwivedi, J.

The appellant-state has preferred this appeal u/s 378 (1) of Cr.P.C 1973, feeling aggrieved by the impugned judgment of acquittal dated 30.09.1992 passed by Fourth ASJ Chhatarpur in ST no. 6 of 1991 whereby, acquitting respondents-accused from the charge u/s 302 in alternative 302 read with section 34,325,323 in alternative 325 read with section 34 and 323 read with section 34 of IPC.

Briefly stated, the facts of the case are that in village Atokoha, there is agricultural land in the name of Baba wale khet and for this agricultural land, deceased Phitua and respondents accused were having certain civil dispute. It is alleged that on the date of incident, i.e. on 04.11.1990 deceased Phitua and other witnesses namely Pyaribai, Ratiram, Natthu and Munni went to the aforesaid disputed land and tried to plough the land concerned. At that time, respondent-accused Ghasita and Jagat came there armed with lathi and objected ploughing of the aforesaid field as they were in possession of the aforesaid land. When deceased Phitua and other witnesses refused to go out from the field, at that time, quarrel took place. It is alleged that deceased Phitua and other witnesses had caused injuries to Ghasita and Jagat, the respondents and in reply, both the respondents also caused injuries to deceased Phitua and others. In this quarrel, both the parties admittedly sustained injuries. Due to the injury sustained on the head, deceased Phitua died. FIR was lodged at police station Laundi distt. Chhatarpur on which basis, police registered this case u/s 302/34 of IPC. Police reached on the spot, prepared inquest panchnama of the dead body of the deceased Phitua and issued memo for Postmortem examination of the dead body. The medical officer Civil Hospital Laundi Dr. D.D. Chaursia performed Postmortem of the dead body of deceased Phitua and found various antemortem injuries and on internal examination, found fracture of frontal bone and opined that the deceased died due to hemorrhage which is the result of the injuries sustained on the head by the deceased and which is the ultimate result of his death and proved the report Ex.P/16. He also examined other injured witnesses namely Pyari Bai wife of Phitua who sustained 8 injuries for which proved report Ex.P/12, also examined second injured Natthu S/o Phitua and found five injuries for which report Ex.P.14 has been proved, similarly, also examined injured Ratiram S/o Phitua and found three injuries on his body for which proved report Ex.P/15. All the injuries sustained by the injured were caused by some hard and blunt object.

Similarly, the accused Ghasita has also lodged FIR of the incident, wherein, the police also sent him for medical examination. The same doctor DD Chaursia (PW8) examined respondent accused Ghasita S/o Harprasad and found 8 injuries out of which, one was on the left parietal region for which, proved report Ex.D/6. Thereafter, he also examined second respondent -accused Jagat S/o Ghasita and found six injuries out of which, four injuries are on the left and right parietal region on the head, for which, he also proved report Ex.D/7.

During investigation, injured complainant Pyari Bai was sent to distt. Hospital Chhatarpur for X-ray examination; Dr. N.K. Khare took her X-Ray and found fracture in the left fibula and left radius and ulna bone for which, proved the report Ex.P/21. He also took X-ray of third injured Ratiram S/o Ghasita and found facture of ulna bone of the left hand for which, proved the report Ex.P/27. Same doctor had also took X-ray of the head of respondent-accused Ghasita S/o Harprasad and also found fracture on the occipital bone for which, proved the report Ex.P/25.

During investigation, investigating officer has prepared spot map. recorded statement of witnesses, arrested respondents-accused and after investigation, charge sheet has been filed.

The respondent-accused abjured the guilt and their defence is of private defence of property and stated that on the alleged disputed land, respondents are in possession. The complainant party deceased Phitua and other witnesses were trying for forcible dispossession of the respondents-accused and at that time, this quarrel took place wherein, persons from both the parties sustained various injuries and thus, the respondents have been wrongly charge sheeted by the police. The respondents had also examined two defence witnesses namely Kalicharan (DW1) and Kishori (DW2)

Learned trial court vide impugned judgment dated 30.09.1992, after due appreciation of entire evidence on record came to the conclusion that if at all any injuries were caused by the respondents to the deceased Phitua and others then they were having the right of private defence of property and therefore, the respondents cannot be held guilty for the offence punishable u/s 302/34, 325/34 and 323/34 of IPC and acquitted both the respondents - accused. Feeling aggrieved by the aforesaid judgment of acquittal, the appellant-state has preferred this appeal.

Having heard Govt. Advocate Shri S.K. Rai for the state and learned Shri DC Jain counsel for the respondents and perused the record.

Learned Govt. advocate for the state has submitted that the approach and appreciation of prosecution evidence by the trial court is erroneous. The prosecution has fully proved the fact that the respondents-accused had caused grievous injuries to deceased Phiuta which resulted his ultimate death on spot itself. The complainant party has right, title and interest on the concerned agricultural land and the respondents had wrongly obstructed the act of ploughing of the complainant party on the aforesaid land and also voluntarily caused injury to the complainant party and in view of that, the charge U/s 302,325 and 323 of IPC is apparently proved by the prosecution and learned trial court has therefore, wrongly acquitted the respondents-accused from the aforesaid charges. Hence, prayed for setting-aside the impugned judgment of acquittal passed by the trial court and also prayed for just and suitable sentences to the respondents for the aforesaid offence.

Learned counsel appearing on behalf of the respondents supported the impugned judgment and submitted that it is fully proved on the basis of the evidence that the respondents-accused Ghasita is in possession of the disputed land on which, the complainant-deceased Phitua and other witnesses were trying to forcible dispossession of the respondents-accused and during that attempt, this quarrel took place and the persons from both the parties sustained injuries. The respondent-accused Ghasita has also sustained injuries on his left parietal bone wherein, fracture has been proved and similarly, Phitua has also sustained grievous injury on his head which ultimately resulted in to his death in the incident and if it is proved on record that the respondents-accused Ghasita was in peaceful possession of the land then, he was having right of defence of his property and therefore, in exercise of this right of provate defence if at all any injury has been caused by any of the respondents, then, the respondents cannot be held guilty for causing any injury to the complainant party and in view of that, learned trial court has rightly acquitted the respondents-accused. The approach of the trial court is completely based on the proper appreciation of evidence and no perversity or illegality is apparent on which basis, the judgment of acquittal can be interfered with by this court, hence, prayed for dismissal of the appeal.

To bring home the charge as levelled against respondents, the prosecution had examined witness Natthu (PW1). Injured eye witness who stated that when his father deceased Phitua was trying to plough the land, at that time both the accused came there armed with lathi and started objecting the aforesaid act of ploughing of the field and then started beating Phitua and others. In the cross-examination, it is this witness Natthu (PW 1) admitted the fact that on this land, a litigation is pending before the competent court in between his father deceased Phiuta and respondent-accused Ghasita. In cross-examination para 5, this witness also denied the fact that half of the disputed land was in the name of accused Jagat as Har Prasad had executed a will in favour of respondent Jagat. He also denied the fact narrated in the FIR Ex.D/1 that half of the land had already been ploughed by the respondent-accused. He also denied about the injuries sustained to the respondent-accused Ghasita in the same incident and tried to conceal the fact of injuries sustained to respondent-accused in the same incident and did not give any explanation for the aforesaid injuries sustained to the respondents. Similarly, second witness Ratiram (PW 2) also stated that when his father Phitua was trying to plough the field, at that time, both the respondents i.e. Ghasita and Jagat came there and obstructed the act of ploughing of the field and thereafter, started beating them. He also denied about the fact that the injuries also sustained to the respondents in the same incident. Munni Bai (PW4) had only stated that in this incident, Phitua sustained injuries and he died on the spot.

Most important witness of this incident is Suresh Chand Patwari (PW 5) who proved revenue record of the disputed land and he clearly stated that the concerning land was mutated in the name of respondent accused Jagat S/o Ghasita in the year 1990 itself by the order of Tehsildar concerned and in cross-examination, he clearly proved that on the disputed land, half portion was in possession of deceased Phitua and more than half portion was in possession of respondent-accused Ghasita which is clearly entered in the revenue records also. In view of the aforesaid evidence of Suresh Chand Patwari (PW 5) the defence story appears to be probable that on the disputed land which was in peaceful possession of respondent-accused Ghasita when complainant party tried to forcibly plough the land, at that time, this quarrel took place wherein, both the parties sustained injuries and if the respondents had objected about their forcible dispossession from the land in dispute, then certainly, they have the right of private defence of property as rightly held by the trial court concerned.

Pyari Bai (PW 6) is also an eye witness who stated that both the respondents had caused injury to her husband Phitua deceased and also to her.

Dr. DD Chaursia (PW8) proved the injuries sustained to Pyari Bai wife of Phitua as per report Ex.P/12, Natthu as per report Ex.P/14, Ratiram S/o Phitua as per report Ex.P/15 and also proved Postmortem report of deceased Phiuta S/o Harprasad which is Ex.P/16. As stated herein above, concerning Doctor DD Chaursia also proved injury sustained to respondent-accused Ghasita S/o Binda as per report Ex.D/6 and Jagat S/o Ghasita ?s per report Ex.D/7.

Witness Sunderlal (PW 9) also conceded the fact that on the disputed land, half portion was in possession of deceased Phitua and half portion was in possession of respondent-accused Ghasita and this incident took place which deceased Phitua and complainant party were trying to plough the land which was in possession of accused-Ghasita due to which, this quarrel took place. Witness Iddu (PW 10) and Ranpat (PW11) only proved that they saw injured persons but they had not proved as to why this quarrel took place. Therefore, their statement is of having no material value.

On perusal of the totality of the aforesaid evidence adduced by the prosecution, it is apparent that the dispute arose when the complainant deceased Phitua and other injured witnesses were trying to plough the field belonging to respondent-accused Ghasita at that time, respondents-accused Ghasita and Jagat took objection and then this quarrel started immediately wherein, both the parties sustained injuries and on the basis of aforesaid evidence, it is apparent that the respondents-accused were having right of private defence of property for alleged forcibly act of ploughing by the complainant party and under that right, if they caused any injury to deceased Phitua and others, then this cannot be held that they willfully or voluntarily caused death of Phitua and also caused injuries to others. Thus, the approach of the trial court of giving them the benefit of right of private defence of property does not appear to be illegal or perverse and therefore, looking to the aforesaid facts of the case, the judgment appears to be just and proper.

17 The Apex Court in Vijaybhai Bhanabhai Patel Vs. Navnitbhai Nathubhai Patel and others AIR 2004 SC 4607 has laid down that "normally, the High court would be slow in reversing finding of acquittal recorded by the trial court unless the finding appears to be perverse or erroneous on appreciation of evidence". Similar view has also been taken by the Apex Court in Umrao Vs. State of Haryana and Others, , wherein also, the apex Court has held that "if the approach of the trial court appears to be just and proper and no perversity is apparent, then normally the judgment of acquittal should not be interfered with".

Learned Govt. Advocate for the state placed reliance on the decision of apex Court in State of Madhya Pradesh Vs. Ramesh, wherein, the apex Court has held that "if the accused party sustained minor injury in such case, non-explanation of the injury sustained to the accused party is not fatal for the prosecution and therefore on the basis of such type of injury, the accused party cannot claim right of private defence". In the present case, from the facts discussed herein above, it is apparent that accused Ghasita and Jagat both sustained head injuries and Ghasita also sustained fracture of the occipital bone also and this incident took place when the complainant party was trying to plough the field which was in possession of respondent-accused and on the aforesaid basis, the trial court came to the conclusion that the injuries were caused while exercising the right of private defence of property of the respondent-accused and in view of that, the facts of the aforesaid case law are not applicable to the factual matrix of the present case.

In view of the aforesaid discussion, in our considered opinion, the trial court has rightly come to the conclusion that the respondents-accused have not caused injuries voluntarily to the deceased Phitua and others and thus, rightly acquitted respondents from the charge u/s 302/34, 325 and 323 read with section 34 of IPC and the aforesaid finding of acquittal is not perverse or illegal which can be interfered with in this appeal.

Resultantly, the appeal preferred by the appellant-state being devoid of any substance is dismissed.