The High Court
Case Details
1 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr. Appeal (SJ) No. 364 of 2005 (Against the judgment of conviction and order of sentence dated 09.03.2005 passed by the learned 3rd Additional Sessions Judge, (FTC), Jamtara, in Sessions Case No. 84 of 2002/40 of 2004. --------- 1.Degan Pandit. 2.Dhaneshwar Pandit. Versus ..… Appellants The State of Jharkhand ...... --------- Respondent
Legal Reasoning
CORAM: HON’BLE MR. JUSTICE DEEPAK ROSHAN --------- For the Appellants : Mr. Gaurav Priyadarshi, Adv. : Mr. S.K.Srivastava, APP --------- For the State 05/Dated: 30th August, 2023 Heard learned counsel for the parties. 2. This appeal is directed against the judgment of conviction and order of sentence dated 09.03.2005 passed by the learned 3rd Additional Sessions Judge, (FTC), Jamtara, in Sessions Case No. 84 of 2002/40 of 2004, whereby the appellant no.2 was convicted under section 325 IPC and appellant No.1 was convicted under section 323 IPC and sentenced them to undergo R.I. for 3 years and a fine of Rs. 500/- to appellant no.2 for offence under section 325 IPC and R.I. for 6 months and fine of Rs. 500/- to Degan Pandit for offence under section 323 IPC and in default of payment of fine both are directed to undergo S.I. for 3 months. 3. The prosecution case in short is based upon the written report submitted by Nirmal Pandit before the Officer- In-Charge, Narayanpur Police Station on 07.12.2001 alleging therein that at around 5:00 pm while the informant went to cut the Bamboo along with his son, Paresh Pandit and after cutting a bamboo while they were returning, at that time Co- villagers namely Basudeo Pandit, Lobin Pandit, Sohan Pandit, Degan Pandit, Dhaneshwar Pandit and Nakul Rai started abusing the informant on the plea that why they have cut the bamboo tree and thereafter they assaulted the informant with lathi on his hand and also assaulted the son of the informant, Paresh Pandit through farsa on his head causing injury. 2 4. Learned counsel for the appellant made following submissions: (i) The Investigating Officer of the case has not been examined in this case and because of non-examination of the Investigating Officer, the appellants are seriously prejudice as they could not draw contradiction regarding the place of occurrence, manner of occurrence and nature of assault. (ii)The right of private defence of property commences when a reasonable apprehension of danger to the property commences. He further submits that the right to private defence of property against theft continues till the offender has affected his retreat with the property or either the assistance of the public authorities is obtained, or the property has been recovered. (iii) There is a case and counter case between the parties. The Appellants registered one F.I.R. Narayanpur being P.S. 90/2001 corresponding to Sessions Trial No. 90/02-41/04 against the Informant and others wherein the Prosecution fails to establish the offences beyond reasonable doubt. (iv) It is a settled proposition of law that Law does not require a person whose property is forcibly tried to be occupied by trespassers to run away and seek the protection of the authorities. The right of private defence serves a social purpose and that right should be liberally construed. Such a right not only will be a restraining influence on bad characters but it will encourage the right spirit in a free citizen. There is nothing more degrading to the human spirit than to run away in the face of peril. In this regard, reference may be made to the judgment of Hon’ble Apex Court in the case of Subramani and Others versus State of T.N. reported in (2002) 7 SCC 210, paragraph 27. (v) In view of the settled proposition of law the impugned order dated 09.03.2005 passed by learned 3rd Additional Sessions Judge, Jamtara may be set-aside. 5. Learned APP opposed the prayer for acquittal and 3 submits that the learned trial court has not committed any error in convicting the appellant. However, he fairly submits that as per record, there is no any criminal antecedent of the appellant. 6. Having heard learned counsel for the parties and after going through the documents available on LCR, it appears that admittedly there is a case and counter case between the parties. The appellants have registered F.I.R being Narayanapur P.S. Case No. 90 of 2001 corresponding to S.T.No. 90/2002-41/2004 against the informant, however in that case the prosecution fails to establish the offences beyond reasonable doubt. It is also admitted that I.O. has not been examined in this case which has caused prejudice to the appellant, inasmuch as, it could not be proved that who were the aggressor. The argument of learned counsel for the appellants that since the informant side tried to take away the bamboos which were standing on the land of the appellants so in order to save those bamboos by the informant as private defence the occurrence took place, as such there were no intention but as a right of private defence every citizen as right to protect his life and property. This argument does not impress this court, in view of the fact that the criminal case which was lodged by the appellants against the informant; the prosecution failed to establish the offence beyond the reasonable doubt. However, it is correct that the right of private defence continues till there is apprehension of damages to the property. Looking to the overall facts and circumstances of the case interest of justice would be sufficed; without interfering with the judgment of conviction the sentence ought to be modified for the period already undergone. 7. As a result, the sentence as ordered by the learned trial court is hereby modified to the extent that the appellants are 4 sentenced for the period already undergone. 8. With the aforesaid observations, directions and modification in sentence only, the instant criminal appeal
Decision
stands disposed of. 9. Let a copy of this order be communicated to the trial court, Secretary, D.L.S.A., Jamtara and also to the appellants through officer in charge of the concerned police station. 10. The lower court record be sent to the court concerned forthwith. Amardeep/ (Deepak Roshan, J.)