JOKHAN CHOUDHARI Vs. STATE

JUDGEMENT

(1.) B. K. Sharma, J. This is an appeal against judgment and order dated 12-9-19fcc passed by Shri M. P. Singh, the then Additional Sessions Judge Goprakhpur in Session Trial No. 396 of 1978, State v. Jokhan Chaudhari and five others, whereby he convicted Jokhan Chaudhari, Ram Beer and' Ram Snehi, accused for the offences under Section 148, 304, Part II 324/149, 323/149, IPC and convicted the remaining accused, Ram Raj, Parashuram and Bhagwatt Chaudhari for the offences under Section 147 304 Part 11,324/149 and 323/149, IPC and sentenced Jokhan Choudhari and Ram Beer, accused to undergo for RI for a term of one year for the offence under Sec. 148, IPC, RI for a term of three years for the offence under Section 304 Part 11, IPC, RI for a term of two years for the offence under Section 324/149, IPC and RI for a term of six months for the offence under Section 323/149, IPC and sentenced the accused Ram Raj and Bhagwati Chaudhari to undergo RI for a term of six months for the offence under Section 147, IPC, RI for three years for the offence under Section 304, Part II, IPC, RI for a term of 2 years for the offence under Section 324/149, IPC and RI for a term of six months for the offence under Section 323/149, IPC and further directed that accused, Ram Snehi and Parashuram to be released on proba tion on entering into a personal bond for Rs. 1000 and two sureties each of like amount to maintain peace be and to be good in behaviour for a period of two years and ro appear and receive sentence, when called upon during the aforesaid period.

(2.) I have heard the counsel for the accused/appellant and the learned A. G. A. In this case the broad established facts are that an occurrence took place on 7-7-1978 at about 8. 00a. m. in village Judiyan P. S. Shahjanwa, District Gorakhpur at the place where the field of com plainant, his brother Mahanand (deceased), father Lalsa, paternal uncles Raja Ram, Ram Pyare and Sudama and that of Jokhan Chaudhary accused/appellant were situated, in which Jokhan Chaudhary accused/appellant inflicted blow with spear on the body of Mahanaad deceased) causing a punctured wound 1/2 cm. X 1/4 cm. X the cavity deep which caused cut fracture of the III Rib of left side and also caused through and through wound In the left lung. Rambeer Chaudhary, accused/appellant inflicted injury with Bhala and Parsu Ram and Bhtgwati accused/appellants inflicted injury with lathi to Faujdar informant, Ram Sanehi accused-appellant inflicted injury with lathi on the body of Ram Pyarey and Parsu Ram and Ram Raj accused-appellant Inflicted injury with lathi on the body of Ram Surat. The injuries of Faujdar, Ram Pyarey and Ram Surat injured were all simple in nature as revealed by their injury reports recorded by the medical officer which were on record. The accused/appellants Ram Sanehi, Jokhan Chaudhary, Parashu Ram and Ram Raj had also received injuries in the transaction. Their injuries are recorded in the G. D. entry about their arrival at the Police Station (Exb. ka 12 ). In fact, a cross case has been lodged at the Police Station by Jokhan Chau dhary, accused-appellant though a final report was submitted therein. It it claimed by the defence that Ram Raj, accused/appellant had even suffered a fracture and one Ram Pyarey also suffered simple injuries from the defence side in the same occurrence though there is no material on record in regard to his injuries. The Sessions Judge believed the prosecu tion evidence and found on a consideration of the same that Faujdar PW 1, Ambika Prasad, PW 2 Kedar PW 3, Dulare PW 4 were working in the cultivatory plot when Jokhan and other accused/appellants reached at the place of incident where Ram Pyarey was straightening the common maind of his chak and the chak of Jokhan Chaudhary, that Jokhan Chaudhary asked Ram Pyare not to do and thereafter Jokhan Chaudhary, accused/appellant instigated other accused/appellants to kill Ram Pyarey. He further found that there was no allegation that the accused persons had any intention to kill the deceased and that from the injury sustained by Ram Pyarey injured, it appears that the accused/appellants had no inten tion to kill him as on the prosecution evidence, the accused persons went away as soon as Mahanand deceased fell down due to blow of spear and that while Ram Pyarey was straightening the mend, PW 1 Faazdar and others were armed with lathi and when the accused/appellants saw them at their field, they went to the place of incident with the object of preventing 'him if necessary to prevent Ram Pyarey from doing so with application of some force, that Jokhan Chaudhary, accused/appellant pursuaded Ram Pyarey not to straighten the mend but on the asking of the accused persons when Ram Pyarey refused to stop from doing so, a free fight ensued between the parties and this fight sloped as soon as Mahanand received spear blow on his chest and fell down. With the above findings and obser vations, he handed down the conviction and sentence.

(3.) SECTION 97, IPC enacts the right of private defence of property against any act which amounts to mischief or criminal tress pass or an attempt to do so. Under SECTION 99, IPC, the right of private defence in no case extends to the inflicting or more harm than it is necessary to inflict for the purpose of defence. Under SECTION 103, IPC, the right of private defence of property extends to the vouluntary causing the death or of any other harm to the wrong-doer in case the offence which occasions the exercise of the right be an offence of any of the descriptions hereinafter enumerated namely: Secondly-House breaking by night. Thirdly-Mischief by fire. . . . . . . . . . . . Fourthly-Theft, mischief or house-trespass under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised.