1 THE HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR Criminal Appeal No. 297 of 2002 Parties Name [PRECEDENT] Constituted Hon'ble Shri Justice [ENTITY] & Hon'ble Smt. Justice [ENTITY] Judgment delivered by Hon'ble Shri Justice [ENTITY] Whether approved for Yes/No reporting Name of counsels for parties For appellant/State: Shri [ENTITY], Government Advocate. For respondents: Smt. [ENTITY],
Amicus Curiae.
Law laid down Significant paragraph numbers (J U D G M E N T) Pronounced on : 07.03.2018
1. The State has filed this appeal against the judgment of acquittal dated 16.05.2000 passed in S.T. No. 185/92. The respondents were prosecuted for commission of offence punishable under [SECTION], [SECTION] and [SECTION] of [ACT]. The trial Court acquitted the respondents from the offences.
2. The trial Court observed in para 27 of the judgment that a counter case was also registered against the complainant party. The incident had happened near the house of one of the accused namely [ENTITY]. The prosecution did not explain injuries suffered by some of the accused persons. There is a possibility
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that the complainant party was aggressor and the respondents inflicted injuries to the complainant party in their right to private defence.
3. It is a fact that from the complainant party [ENTITY], [ENTITY], [ENTITY] and [ENTITY] received injuries. The allegations against the respondents are that they had inflicted injuries at the injured persons by hard and blunt objects as well as sharp edged weapons.
4. Dr. [ENTITY] (PW-10) deposed that I had examined injured [ENTITY] and noticed that there was a sharp cut injury on right hand's index finger of the injured. There were other injuries on his person.
5. From the evidence of other witnesses, this fact has been proved that the accused persons had caused injuries to the persons of complainant party. A counter case was also registered against the complainant party on the report lodged by [ENTITY]. In the aforesaid report, [ENTITY] alleged that at around 12:30, when his family members were preparing meal, [ENTITY], [ENTITY], [ENTITY], [ENTITY] and [ENTITY] came there. They were armed with [ENTITY] and [ENTITY] and thereafter they abused him and inflicted injuries at his son namely [ENTITY] and [ENTITY]. On the said report, a case was registered. This fact has been proved from the evidence of DW-2 [ENTITY]. DW-1 [ENTITY]
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deposed that I witnessed the incident and both the parties had beaten each other and both the parties had received injuries. As per the spot map (Ex.P-8), the place where the incident had happened is near the house of respondent-[ENTITY].
6. The Apex Court in the case of [PRECEDENT] has held as under in regard to right to private defence:-
20. With regard to the evidence that the appellant was being assaulted and in fact attempted to be strangulated, it needs to be considered whether the appellant shot the deceased in the exercise of his right of private defence. Such a right is clearly available when there is a reasonable apprehension of receiving the injury.
21. The right of private defence is contemplated by [SECTION] of [ACT] which reads as follows:-
"[SECTION]. Right of private defence of the body and of property. Every person has a right, subject to the restrictions contained in [SECTION], 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."
22. In [PRECEDENT], this court laid down the following principles which emerged upon the careful consideration and scrutiny of a number of judgments as follows:-
"58. The following principles emerge on scrutiny of the following judgments:
(i) Self-preservation is the basic human instinct and is duly recognised by the criminal
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jurisprudence of all civilised countries. All free, democratic and civilised countries recognise the right of private defence within certain reasonable limits.
(ii) The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.
(iii) A mere reasonable apprehension is enough to put the right of self- defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence.
It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.
(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is coterminous with the duration of such apprehension.
(v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.
(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.
(vii) It is well settled that even if the accused does not plead self- defence, it is open to consider such a plea if the same arises from the material on record.
(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.
(ix) The [ACT] confers the right of private defence only when that unlawful or wrongful act is an offence.
(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self-defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened."
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7. The Apex Court further in the case of [PRECEDENT] in regard to non-explanation of injuries suffered by the complainant parties has held as under:-
"7. The High Court has also noted that both the sides had taken a plea that the land in question where the occurrence had taken place is in their possession. One of the injured [ENTITY]-PW6 also deposed, as noted by the High Court, that the parties were having dispute with the accused over land. The High Court has also noted the Judgment of this Court in the case of [PRECEDENT] which was relied upon by the counsel for the accused persons in support of private defence and for acquittal on the ground of non-explanation of death and injuries on the side of the accused. The High Court drew correct inferences from the aforesaid judgment but proceeded to convict the appellants on the misconceived ground that since both the parties had withheld the origin and genesis of the occurrence and since it cannot be determined as to which party was the aggressor, the case had to be decided against the accused persons treating it as a case of free fight between the parties.
8. The aforesaid view of the High Court is devoid of legal merits. Once the Court came to a finding that the prosecution has suppressed the genesis and origin of the occurrence and also failed to explain the injuries on the person of the accused including death of father of the appellants, the only possible and probable course left open was to grant benefit of doubt to the appellants. The appellants can legitimately claim right to use force once they saw their parents being assaulted and when actually it has been shown that due to such assault and injury their father subsequently died. In the given facts, adverse inference must be drawn against the prosecution for not offering any explanation much less a plausible one. Drawing of such adverse inference is given a go-bye in the case of free fight mainly because the occurrence in that case may take place at different spots and in such a manner that a witness may not reasonably be expected to see and therefore explain the injuries sustained by the
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defence party. This is not the factual situation in the present case."
8. The Apex Court has further held in the case of [PRECEDENT] in regard to principle of law if the appeal is against acquittal:
In [PRECEDENT], this Court noted the principles which are required to be followed by the appellate court in case of appeal against order of acquittal and in paragraph (12) held as under:-
"12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [PRECEDENT], [ENTITY] (1973) 2 SCC 424, [PRECEDENT], [PRECEDENT], [PRECEDENT], [ENTITY] (1979) 1 SCC 355, [PRECEDENT], [PRECEDENT], [PRECEDENT], [ENTITY] (1998) 5 SCC 412, [ENTITY] (2002) 4 SCC 85, [ENTITY] (2002) 6 SCC 470, [PRECEDENT], [ENTITY] (2005) 9 SCC 291, [PRECEDENT] and [ENTITY] (2007) 4 SCC 415.
It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:
(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;
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(iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and
(iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court."
9. From the above quoted judgments of the Hon'ble Apex Court, principle of law is that the accused need not prove the existence of right of private defence beyond reasonable doubt and a person who is imminent has reasonable danger of losing his life or limb may in exercise of self defence inflict any harm and non-explanation of injury suffered by the complainant party is fatal to the case of prosecution. The Apex Court has further held that the Appellate Court be slow in disturbing findings of facts recorded by the trial Court. If the conclusion of the trial Court is palpably wrong or based on erroneous view of the law, then the High Court can interfere. In the present case, the incident had happened in front of the house of accused [ENTITY].
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The complainants themselves admitted that they had gone to the house of [ENTITY] to complain that why he had prevented them from taking out the sand from a particular place. This fact has been negativated by the trial Court by observing that a quarrel had taken place and as per the evidence, the complainant party was also having arms.
10. Looking to the evidence on record and principle of law laid down by Hon'ble Apex Court, in our opinion, the conclusion reached by the trial Court could not said to be palpably wrong or based on erroneous view of the law. Consequently, we do not find any merit in this appeal. It is hereby dismissed.
([ENTITY]) (Smt. [ENTITY]) Judge Judge Amjad