Jharkhand High Court
Siyaram Mirdha vs Dhananjay Kunwar on 3 April, 2023
Bench: Shree Chandrashekhar, Ratnaker Bhengra
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Criminal Appellate Jurisdiction)
Acquittal Appeal No.5 of 2018
1. Siyaram Mirdha, son of Khudu Mirdha, resident of village-Sarwa, P.O-
Panchayat Ghatghamariya, PS- Mahagama, District:- Godda.
2. Jalar Mirdha, son of Mohar Lal Mirdha, resident of village-Sarwa, P.O-
Panchayat Ghatghamariya, PS- Mahagama, District:- Godda
3. Badamiya Devi, wife of Pyari Mohan, resident of village-Sarwa, P.O-
Panchayat Ghatghamariya, PS- Mahagama, District:- Godda
...... Appellants
Versus
1. Dhananjay Kunwar, son of late Badri Kunwar, resident of village-Sarwa,
P.O. & PS-Mahagama, District-Godda.
2. Nirmal Kunwar, son of Jitu Kunwar, resident of village- Sarwa, P.O &
PS-Mahagama, District-Godda.
3. Ghutlu Kunwar, son of Sri Lobin Kunwar, resident of village-Sarwa, P.O
& PS-Mahagama, District-Godda
4. Premlal Kunwar, son of late Jaggo Kunwar, resident of village-Sarwa,
P.O. & PS-Mahagama, District-Godda
5. Bhola Kunwar, son of Sri Dhanajay Kunwar, resident of village-Sarwa,
P.O & P.S-Mahagama, District-Godda.
6.Video Kunwar, son of late Walis Kunwar, resident of village-Sarwa, P.O &
PS-Mahagama, District-Godda.
7. Lobin Kunwar, son of late Walis Kunwar, resident of village-Sarwa, P.O
& PS-Mahagama, District-Godda.
8. Premlal Mirdha, son of late Sahdeo Mirdha, resident of village-Sarwa,
P.O & PS-Mahagama, District-Godda.
9. Manju Kunwar, son of late Badri Kunwar, resident of village-Sarwa, P.O
& PS-Mahagama, District-Godda.
10. Anit Kunwar, son of late Walis Kunwar, resident of village-Sarwa, P.O &
PS-Mahagama, District-Godda.
11. Chandan Kunwar, son of Sri Dhananjay Kunwar, resident of village-
Sarwa, P.O & PS-Mahagama, District-Godda.
12. Fullkumari Devi, wife of Premlal Mirdha, resident of village-Sarwa, P.O
& PS-Mahagama, District-Godda
13. Shanti Devi, wife of Anit Kunwar, resident of village- Sarwa, P.O & PS-
Mahagama, District-Godda.
14.Surji Devi, wife of Dhananjay Kunwar, resident of
village-Sarwa, P.O & PS-Mahagama, District-Godda.
15. Sudmiya Devi, wife of Video Kunwar, resident of village- Sarwa, P.O &
PS-Mahagama, District-Godda. ...... Respondents
16. State of Jharkhand ...... Proforma Respondent
2 Acq. Appeal No.5 of 2018
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
HON'BLE MR. JUSTICE RATNAKER BHENGRA
For the Appellants : Miss Amrita Sinha, Advocate
For the Respondents : Mr. Manoj Kumar Sah, Advocate
For the State of Jharkhand : Mr. Saket Kumar, APP
--------------
ORDER
rd 3 April 2023 Per, Shree Chandrashekhar, J.
Siyaram Mirdha who is cousin brother of Mohar Lal Mirdha is aggrieved of the judgment of acquittal dated 26th November 2016 passed in Sessions Trial Case No.138 of 2011. On the basis of written complaint of Mohar Lal Mirdha given to the Officer-in-Charge of Mahagama PS, a First Information Report was lodged against Dhananjay Kunwar, Nirmal Kunwar, Ghutlu Kunwar, Premlal Kunwar, Bhola Kunwar, Video Kunwar, Lobin Kunwar, Premlal Mirdha, Manju Kunwar, Anit Kunwar, Chandan Kunwar, Fullkumari Devi, Shanti Devi, Surji Devi and Sudmiya Devi.
2. According to the prosecution, the aforementioned accused persons who are made respondents in the present acquittal appeal formed an unlawful assembly and attempted to murder at least four of the prosecution witnesses. After the investigation, a charge-sheet was laid in the Court under sections 147, 148, 149, 341, 323, 324 and 307 r/w section 34 of the Indian Penal Code and the respondents have faced the trial on the charge under sections 148, 341/149 and 307/149 r/w section 34 of the Indian Penal Code.
3. During the trial the prosecution has examined 9 witnesses out of whom PW1, PW2, PW3 and PW5 are the injured witnesses.
4. Miss Amrita Sinha, the learned counsel for the appellants has contended that once the prosecution story of PW1, PW2, PW3 and PW5 having received injuries at the hands of the accused persons has been found true merely on some doubt about the manner of occurrence a judgment of acquittal could not have been rendered.
5. The learned counsel for the appellants would submit that evidence of the injured witness takes higher evidentiary value and on some minor discrepancy in the prosecution case the trial Court is not justified in recording acquittal of the respondents.
6. The learned counsel for the appellants has referred to a recent 3 Acq. Appeal No.5 of 2018 judgment dated 29th March 2023 of the Hon'ble Supreme Court passed in Criminal Appeal No. 1910 of 2010 titled "Balu Sudam Khalde and another v. The State of Maharashtra". In paragraph no.26 of the judgment, the Hon'ble Supreme Court has held as under:
"26. When the evidence of an injured eye-witness is to be appreciated, the undernoted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded."
7. Mr. Manoj Kumar Sah, the learned counsel for the respondents has referred to the cross-case being Mahagama PS Case No.14 of 2010 filed by Dhananjay Kunwar who was the accused no.1 in Sessions Trial Case No.138 of 2011 and the charge-sheet filed therein to submit that in a scuffle which ensued on a quarrel between both sides the accused persons in exercise of the right of private defence has caused injuries to some of the prosecution witnesses.
8. 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.
9. Sections 96, 97, 99 and 101 of the Indian Penal Code are extracted below:
96. Things done in private defence.--Nothing is an offence 4 Acq. Appeal No.5 of 2018 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 definition 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 the 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 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."
10. 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.
11. In Mahagama PS Case No.14 of 2010 which was lodged on 12th February 2010, Dhananjay Kunwar has made a specific allegation of assault 5 Acq. Appeal No.5 of 2018 upon his family members by Mohar Lal Mirdha.
12. There is a specific allegation against the said person trying to outraged modesty of the female folks of his family. Furthermore, the learned trial Judge has recorded a finding that PW4 has admitted in the Court that the informant party came to the house of the respondents and asked them to vacate the house. PW8 has also made a similar allegation against the informant party. This is also the prosecution evidence through PW1 and PW5 who came in the Court to depose that the respondents have constructed a house over their land about 25 years back. The learned trial Judge has recorded a finding that the informant party could not file any document regarding title and possession over the property in dispute.
13. In the aforesaid situation, the respondents were justified in warding off the attack by the informant party. In "Wassan Singh v. State of Punjab" (1996) 1 SCC 458 the Hon'ble Supreme Court has held that while examining a case set-up by the accused persons, the Court should not scrutinize the evidences in a microscopic and pedantic manner. It is well- settled that once it is found that the accused has a right of private defence and there was a reasonable apprehension of danger to the body arising from an attempt or threat to commit the offence, the injury caused to the assaulter shall not attract criminal liability.
14. In "Kashmiri Lal v. State of Punjab"(1996) 10 SCC 471 the Hon'ble Supreme Court has observed as under :
"17. ... A person who is unlawfully attacked has every right to counteract and attack upon his assailant and cause such injury as may be necessary to ward off the apprehended danger or threat."
15. While so, we do not find any ground to interfere in this matter and, accordingly, Acquittal Appeal No.5 of 2018 is dismissed.
16. Let the lower Court records be transmitted to the Court concerned, forthwith.
17. Let a copy of the Judgment be transmitted to the Court concerned.
(Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) High Court of Jharkhand, Ranchi Dated: 3rd April 2023 Sudhir/NAFR