Patna High Court
Thakur Mahto And Ors. vs The State Of Bihar on 1 September, 1971
Equivalent citations: 1972CRILJ835
JUDGMENT S. Wasiuddin, J.
1. There are fourteen appellants in this appeal and in Sessions Trial No. 41 of 1967 all these appellants have been convicted under different sections of the Indian Penal Code.
Shankru Mahto. appellant No. 8 has been convicted under Section 302, Indian Penal Code and sentenced to undergo rigorous imprisonment for life. He has been also convicted under Section 324. Indian Penal Code and sentenced to undergo rigorous imprisonment for two years. He has been further convicted under Section 148, Indian Penal Code, but no separate sentence has been passed against him under this section.
Appellants Nos. 1 and 10, viz.. Thakur Mahto and Mahadeo Mahto have been convicted under Section 326/149, Indian Penal Code and sentenced to undergo rigorous imprisonment for six years. There has been a further conviction against them under Section 148. Indian Penal Code, but no separate sentence has been passed under this count.
Appellants 2 to 6, 9, 11. 12 and 14 have also been convicted under Sections 326/149. 323/149 and 147. Indian Penal Code and sentenced to undergo rigorous imprisonment for six years under Section 326/149 but no separate sentences have been passed under Sections 323/149 and 147. Indian Penal Code.
Appellants 7 and 13, viz., Charku Mahto and Meghu Mahto have been convicted under Sections 326/149, 323 and 147, Indian Penal Code and sentenced to undergo rigorous imprisonment for six years under Section 326/149. but no separate sentences have been passed under Sections 323 and 147. Indian Penal Code.
The sentences passed against appellant Shankru Mahto have been ordered to run concurrently.
2. The case of the prosecution briefly stated is as follows : The occurrence took place in the mornins at about 6 A. M. On 13-8-1966 in village Kanchanpur within Govindpur police station in the district of Dhanbad. There is a plot of land viz.. plot No. 1175 measuring 1.73 acres appertaining to khata No. 63 and situated in the aforesaid mauza. There was a proceeding in respect of this land under Section 145 of the Code of Criminal Procedure and the prosecution party of this case had been declared to be in possession in respect of this land by order of the Magistrate dated 17-1-1966. Gulu Mahto (P. W. 11) along with his sons Ram Charan Mahto (P. W. 3), Girish Mahto (P. W. 5). Sheo Charan Mahto (P. W. 6). Teklal Mahto (P. W. 15) and grandson Nandlal Mahto (P. W. 4) and his nephews Doman Mahto (P. W. .1) and Hari Ram Mahto (P. W. 2). according to the prosecution, had gone to this aforesaid plot in the morning to plough the same. It is said that the accused persons, who are appellants in this appeal variously armed with tangilathi, bows and arrows and thus forming an unlawful assembly arrived at that place. Thakur Mahto, appellant No. 1 and Charku Mahto, appellant No. 7 enquired from the prosecution Party as to why they were ploughing this land and asked the prosecution party to remove the ploughs otherwise they would be killed. It is said that they also began to assault during the course of which Gulu (P. W. 11), Girish (P. W. 5) and Izarat the deceased sustained injuries. Shankru Mahto, appellant No. 8 who is said to have been armed with a tangi assaulted Izarat on the head and the latter died on the spot. Gulu and Girish were also rendered unconscious by the injuries. Doman Mahto (P. W. 1) after thus occurrence went to the police station and lodged a first information report which is Ext. 3 in this case. The officer in charge of the police station Rudra Mohan Sinha, who is P. W. 16, after having recorded the first information report instituted a case and then he came to the place of occurrence. He left the police station at about 10 A. M. and reached the place of occurrence at about 12 noon. He found plot No. 1175 full of mud and water and the dead body of Izarat lying on the western Aal of the plot. He also found Gulu (P. W. 11) and Girish (P. W. 5) lavinp there in injured condition. The police officer held inquest over the dead body of Izarat and then escorted by a constable, he sent the dead body for post mortem examination to Dhanbad. He also prepared the injury reports of Girish and Gulu and also seized articles found there such as blood-stained earth etc. and proceeded with the investigation. After the completion of the investigation he submitted charge-sheet in the case.
3. The learned Sub-divisional Magistrate took cognizance and transferred the case to the committing Magistrate who after holding an inquiry before commitment found a prima facie case made out against the accused persons that is all the fourteen appellants and committed them for trial to the Court of Session.
4. The defence of all the appellants was that they were all innocent and had been falsely implicated in the case and as regards plot No. 1175 it was pleaded on their behalf that this plot was not in possession of the prosecution party but rather it had been and was in possession of the appellants at the time of the occurrence. It was urged that they had been falsely implicated on account of enmity. It also appears that alternatively the defence also pleaded that the prosecution has not given the correct place as the place of occurrence because the occurrence did not take place on plot No. 1175. but rather it took place on plot No. 1113 which is adjacent west of plot No. 1175. Plot No. 1113 belongs to the appellants and they had grown paddy seedlings on the same. According to the defence version Gulu Mahto (P. W. 11) Izarat (deceased). Girish (P. W. 5) and Doman (P. W. 1) had all come armed on the date of occurrence on plot No. 1113 and began to uproot the paddy seedling. Charku Mahto. appellant No. 7 protested and then according to the defence Izarat (deceased) struck Charku with a lathi on his right hand and Charku fell down. There was thus a plea of right of private defence also.
5. The learned Sessions Judge believed the prosecution version and he found all these appellants guilty of the different offences and has convicted them all and imposed the sentences, as indicated in the earlier part of the judgment. He was of opinion that by virtue of the decision in the proceeding under Section 145 of the Code of Criminal Procedure plot No. 1175 belonged to the prosecution party and they were in possession of the same and as such the appellants had no right to interfere with their possession. The learned Sessions Judge was also of opinion that as far as the death of Izarat is concerned, this had been caused by Shankru. appellant No. 8 who had given the fatal blow with a tangi on the head, but as regards the other appellants he was of the view that they were not guilty of the offence under Section 302/149. because there was no common object to commit murder, but were guilty under Section 326/ 149, Indian Penal Code.
6. At the time of the hearing of this appeal the learned Counsel appearing for the appellants submitted that the learned Sessions Judge has not properly appreciated the evidence on record and the materials which emanated from the evidence with regard to the possession of plot No. 1175 particularly in light of the evidence of the Amin, who was examined as P. W. 7. It has been urged that the ingredients as required for conviction under Sections 302. 326/ 149, 147 and 148. Indian Penal Code had not been proved. The learned Sessions Judge should not have given credence to the testimony of the witnesses examined on behalf of the prosecution because all the witnesses were related with each other and rather they belong to one and the same family. The learned Sessions Judge also should have held that the occurrence took place in the manner as alleged on behalf of the defence that is to say, that it was with regard to the uprooting of the paddy seedlings and this fact finds support and corroboration from what the investigating officer found on the spot and also from this fact that Chakru. appellant No. 7 had also received injury. With regard to Shankru appellant No. 8 it had been pleaded that the evidence on record does not prove that he was the person who inflicted the fatal injury or the injury on the head of Izarat (deceased).
7. The first question which arises for consideration, is whether there was an occurrence on the date in question and as far as the occurrence itself is concerned, there is the evidence of a number of witnesses examined on behalf of the prosecution. These are P. Ws. 1 to 6, 10 and 11. Out of these witnesses Gulu Mahto (P. W. 11) and Girish Mahto (P. W. 5) had received injuries on their person and so it can be said that they are really competent witnesses as they must have been present at the time of the occurrence. True, it is, that all these witnesses are related with each other and this also cannot be disputed that they all belong to one and the same family. The testimony of these witnesses cannot be discarded only on the ground that they were related with each other or that they were interested witnesses. Their evidence has to be scrutinized and weighed with caution in the light of the other evidence and the circumstances of the case. The evidence of these witnesses with regard to the occurrence finds support from the injuries found on the person of the two witnesses mentioned above and then also from the medical evidence regarding the ante-mortem injuries found on Izarat. who died at the soot, I may refer here first of all to the evidence of Dr. C. N. Prasad (P. W. 12), who held post-mortem examination on the dead body of Izarat. This examination was held by him on 14-8-1966 at 4.30 P. M. He found the following ante-mortem injuries on his person;
(1) One incised wound 3" x 1/2" x scalp deep at the left side of the scalp 3" above and 2" back of the left ear.
(2) One punctured wound 1/2" x 1/4" x 1/2" at the back of the right forearm near its middle.
(3) One diffused swelling of the right thigh.
The doctor was of opinion that the injury No. 1 could be caused by a tangi and No. 2 by an arrow and No. 3 by hard and blunt substance, such as lathi. It may be mentioned here that there was the positive case of the prosecution that the appellants were also armed with arrows. This fact also finds support and corroboration from the evidence of the investigating Officer, who is P. W. 16 because he on inspection of the place found also arrows there. The doctor was also of opinion that the death was due to the brain injury meaning there by injury No. 1 which was sufficient to cause death in ordinary course of nature.
8. I will now turn to the evidence of Dr. A. Z. Mallick. who is P. W. 13, He examined the injuries on Gulu Mahto (P. W. 11) on 14-8-1966 at about 11 A. M. and found the following iniuries on him:
(1) Lacerated wound 11/2" x 1/2" bone deep on the back of the right side of head.
(2) Scratch 1/2" X 1/2" on the back of the left wrist.
(3) Scratch with bruise 2" X 1/2" on the joint of the middle left thigh.
(4) Bruise 4" x 1" on the right shoulder.
The doctor was of opinion that all these injuries were simple in nature and injury No. (1) could be caused by the butt of a tangi and others could be caused by lathi.
9. With regard to the iniuries found on the person of Girish (P. W. 5), who is the son of Gulu Mahto, the doctor found the following iniuries:
(1) Lacerated wound 2 1/2" x 1/2" x bone deep on the right side of head.
(2) Swelling 5" X 4" on the right palm and wrist with punctured wound 1/4" x 1/6" x 1/2" on the back of the right palm. It was incised.
(3) Diffused swelling with tenderness 5" x 3" on the back of upper third of right arm with punctured incised wound 1/2' x 1/4" x 1/2".
(4) Diffused swelling 2 " x 1" on the left foot.
He was of opinion that all the injuries were simple in nature and injury Nos. (1) and (4) could be caused by blunt substance and Nos. (2) and (3) by sharp pointed weapon and No. (1) could be caused by blunt portion of bhala. As regards injury No. (2) he stated that it could not be caused by a tangi.
9A. The medical evidence therefore, supports the testimony of the witnesses that there was an occurrence in which the persons, mentioned above. were injured and Izarat on account of the injuries so sustained by him died. The investigating officer also found that plot No. 1175 had been ploughed and there was mud and water in it. The dead body of Izarat was also smeared with mud. It may also be mentioned here again that according to the defence version Charku appellant No. 7 had been assaulted and it was rather that assault on him was first by the prosecution party. It appears that there was no medical evidence brought on record to prove that there was any injury on Charku. The learned Sessions Judge has also referred to this aspect of the matter in his judgment. It further appears that appellant Charku surrendered before the Magistrate on 18-8-1966, vide order-sheet of the Magistrate's Court. There was a prayer for bail on his behalf and it was said that he had got fracture in his hand. The learned Sub-divisional Magistrate directed the jail doctor to examine him immediately and send the report soon to the court. He further ordered that the petition would be heard on 19-8-1966. It also appears that the report of the jail doctor was not received and the evidence of the investigating officer (P. W. 16) shows that he had sent a requisition to the jail doctor with regard to the fracture and the direction of the Sub-divisional Magistrate. The police officer also stated that he requested the, jail doctor to examine him and send his report. He has proved also the reply which he received. The requisition (Ext. A) and the reply on the same (Ext. Aa) show that when the jail doctor was requested by the Officer in charge to send the injury report, then he replied that neither any requisition was received by him nor any complaint from the accused was received by him. In such circumstance, there was no dependable evidence on record to show that appellant Charku Mahto did receive any injury and if so what was the nature of the injury.
10. Now besides the evidence which as adduced on behalf of the prosecution with regard to the occurrence it may also be mentioned here that the fact that there was an occurrence on that day has not been disputed and rather it appears that from the defence and particularly the statement of Kheman Mahto, appellant No. 9 in his examination under Section 342 of the Code of Criminal Procedure that an occurrence did take place and he has stated that the prosecution party (giving the names of the persons) came to their land and began to unroot the seedlings and that Charku asked them not to do so and on this Izarat assaulted on his right hand and Charku Rot an injury and he fell down unconscious. He has used the words "Hath Tut Gava" meaning obviously that there was a fracture on account of this blow. In view of these facts there can be no doubt that there was an occurrence, but the question arises whether the occurrence was in the manner as alleged on behalf of the prosecution and naturally in this connection the configuration, the physical features existing on the spot and factual possession of plot No. 1175 arise for consideration. While stating the case of the parties I have already referred to this aspect of the matter that there was a proceeding in respect of plot No. 1175. It will be necessary to appreciate the point which arises for consideration if I give here in some detail about the background of the dispute in respect of plot No. 1175. This plot admittedly appertains to khata No. 63 and it measures 1.73 acres. Admittedly this was the subject-matter of a proceeding, viz. case No. M. P. 630 of 1964 Santori Mahato and others versus Charku Mahto and others. Santori Mahato is the father of Doman Mahto (P. W. 1) and Charku is appellant No. 7. The proceeding, therefore, was undoubtedly inter partes. It appears from the final order passed in that proceeding which is Ext. 7 that the dispute was in respect of plot No. 1175 measuring 1.73 acres, but the order of the learned Magistrate does not show that any boundary or specification of this land was given. It may be also mentioned here that this is not disputed that no further description of the land was given beyond mentioning the area and the plot number and the khata number, that is to say no boundary was given. It has. therefore, been urged on behalf of the appellants that the description as given in the proceeding was vague and indefinite as the land could not be exactly located and demarcated on the spot.
11. Now turning to this aspect of the matter as to what was the case of the respective parties in the proceeding under Section 145 of the Code of Criminal Procedure, it appears that Santiru Mahto, that is, the prosecution party claimed the land by virtue of inheritance and survivorship from the recorded tenant. Charku, appellant No. 7. on the other hand, claimed that the land was Patit (not culturable?) and that about 30 to 35 years ago before the drawing up of the proceeding the ancestors of the appellants had reclaimed the disputed land by cutting the earth. It was also said that they had prepared seven paddy khets, and had amalgamated portions of the said plot with their other recorded paddy lands situated to the north. They claimed to have been coming in possession of the disputed land by growing paddy and there was a denial of the possession of the prosecution party. It may be mentioned here that the prosecution party figured as first party in the aforesaid proceeding and the appellants were the second party. The learned Magistrate did not record any finding one way or the other whether the lands were amalgamated on the spot or not and he in view of the entry in the survey record of rights and also in view of the fact that no rent receipt had been filed by the second party, was of opinion that the first party was in possession and. therefore, declared the possession of the first party. This final order was passed on 17-1-1966 and the present occurrence took place on 13-8-1966, that is, about seven months thereafter. It may also be mentioned here that admittedly neither party preferred any revision against this nor filed any suit in the Civil Court. It has. therefore, been urged on behalf of the prosecution that the final order passed in the proceeding under Section 145 of the Code of Criminal Procedure was binding and conclusive between the parties and that the appellants cannot now assert that they were in possession and that any interference on their behalf in possession of the same would be something unlawful and such an assembly with such common object would be unlawful assembly as contemplated by the Indian Penal Code. It has been urged, on the other hand, on behalf of the appellants that in the first place the order was vague and indefinite and, therefore, such an order was without jurisdiction and secondly that the evidence adduced in the case specially the evidence of P. W. 7, the Amin examined on behalf of the prosecution clearly shows that the configuration and the physical features factually existing on the soot not only mutilate against the assertion of the prosecution party but rather show that factually the prosecution party never came in possession of the entire land of plot No. 1173.
12. I will now, therefore, discuss the evidence of P. W. 7 along with the evidence of the investigating officer. The evidence of these two witnesses has to be read also alone with the map which has been prepared by the Amin, The Amin (P. W. 7) stated that he is an Amin and that on 14-8-1966 he went to the place of occurrence, but it became night, so again went to that place on 15-8-1966. He measured the land and prepared a map. This map is Ext. 2 in this case. Now it further appears from the evidence of this witness read alone with the survey map that the ridges showing the survey boundaries do not exist on the spot. The Amin. therefore, in his map has given two kinds of lines, one is the black line and the other is the red line. The black lines indicate the boundary according to the survey map. but as those lines are not actually existing on the spot and the position is otherwise, so he has indicated by red lines the existing ridges on the spot. I may mention here that the may prepared by this Amin shows that according to the survey map plot No. 1175 has a very peculiar shape. This fact is also not disputed by the other side. Plot No. 1175 according to the survey map as shown with black lines in the map prepared by the Amin shows that this plot has an irregular and peculiar shape. Plot No. 1112 is contiguous north to plot No. 1175, Plot No. 1113 is contiguous west of plot No. 1175 and plot No. 1111 is contiguous south of plot No. 1175. It may also be mentioned here that this position is not disputed that plots Nos. 1113, 1112 and 1111 admittedly belong to the appellants. If the ridges according to the survey map existed on the spot, then there would have been no difficulty in locating and demarcating plot No. 1175, but as those ridges do not exist on the spot, so the position has become very difficult. It is not a case where the ridges according to the survey map are not in existence at any particular place, but it is a case where there are other ridges existing on the spot shown by red lines and when these ridges are taken into consideration, then it clearly appears that there are amalgamations of portions of this plot on the spot with the other lands of the appellants. The Amin located a portion measuring 29 decimals as the place of occurrence and he marked this with letter 'Gha'. The Amin was really not competent to state that this was actually the place of occurrence because he Was not an eve witness of the occurrence, but it appears that he visited the place alone with the investigating officer (P. W. 16), and this portion marked as 'gha' has been stated by him as part of plot Nos. 1112 and 1175. This witness clearly stated that the boundary line according to the survey is not on the spot. He has further stated that the plots have been on the spot amalgamated with each other and as stated above he has shown the existing ridges with red lines. In his cross-examination he had to admit that there is no ridge existing on the spot lying in between plot Nos. 1112 and 1175. There is also a place where the paddy seedling is said to have been uprooted. The investigating officer also found paddy seedlings uprooted and then I may again refer to the defence version which was to the effect that the prosecution party had unrooted these paddy seedlings and this witness stated that this place from Where the paddy seed-ling Was found to have been uprooted is in plot No. 1113. I may also refer here in this connection to the evidence of the investigating officer who is P. W. 16 and he stated that he did not find some paddy seedlings Uprooted from plot No. 1113. This also supports the statement of the Amin (P. W. 7). The investigating officer also at the time of his inspection found that there are as many as nine kiaries in plot No. 1175. It may be also mentioned here that in the proceeding under Section 145 of the Code of Criminal Procedure the appellants pleaded amalgamation and had also submitted that there were seven kiaries on the spot.
13. Now While discussing this aspect of the matter. I may also refer to the finding of the learned Sessions Judge in his judgment. He after a discussion of the evidence of the Amin and the physical features of the land also observed as follows:
It will appear therefore that there is no intervening boundaries between plot No. 1112 which belongs to the accused and 1175 which belongs to the prosecution party.
The learned Sessions Judge, however, was of opinion that as far as the question of possession is concerned, there was on one hand the final order in the proceeding under Section 145 of the Code of Criminal Procedure which was in favour of the prosecution party and then there was the evidence of the witnesses examined, on behalf of the prosecution, who have stated that the prosecution party was in possession of plot No. 1175 whereas on the other hand there were only suggestions to the witnesses and statement in the examination under Section 342 of the Code of Criminal Procedure asserting possession over the same of the appellants and thus there was no positive evidence on behalf of the defence on this point. The learned Sessions Judge also took into consideration this aspect of the matter that plot No. 1111 is contiguous south of plot No. 1175. but the ridges existing on the spot do not show amalgamation with plot No. 1111 and since plot No. 1111 also belongs to the appellants, so if their case of amalgamation was correct then there would have been an amalgamation with plot No. 1111 also. The learned Sessions Judge was of opinion that the fact of amalgamation as deposed to by the Amin is not pointer of accused's possession. He. therefore held that the prosecution party was in possession of entire plot No. 1175. In my opinion, certain facts and circumstances prominently emerged from the evidence on record which need consideration and these rather outweigh the circumstances mentioned by the learned Sessions Judge. The facts which I have stated above would clearly show that there was an amalgamation on the spot. This amalgamation has been pleaded in the proceeding under Section 145 of the Code of Criminal Procedure, but no finding one way or the other has been given by the learned Magistrate. A question does arise for consideration as to when this amalgamation was made and is there any probability that this amalgamation may have been made after the final order in the proceeding under Section 145 of the Code of Criminal Procedure. Now as far as this aspect of the matter is concerned, there can be no doubt that the physical features existed on the day of the occurrence from what has been deposed by the Amin as well as the investigating officer, who are P. Ws. 7 and 16 respectively. The evidence of P. W. 16 shows that he found as many as nine kiaries in plot No. 1175. By kiaries obviously he means sub-plots. These sub-plots were amalgamated for portions of plot No. 1175 with some other lands which belong to the appellants. If the prosecution party was in possession of the entire plot No. 1175, then this would not have been the position, as it was found on the day of occurrence. It also appears from the evidence of P. W. 1 that he was present on the spot when the investigating officer visited and inspected the land. They inspection of investigating officer along with the Amin who prepare the map to which I have referred about. It may be said that these chan(sic) have been brought about after the occurrence so as to prop up the defence version, but if that be so then it would be expected that there would have been some evidence led on behalf of the prosecution to the effect that such alterations had been brought about, but rather the evidence shows that no challenge was made to the evidence and the map submitted by the Amin and rather he has been examined as a witness for the prosecution itself. There was no challenge to this effect that what has been reported to by the Amin did not show the actual state of affairs existing at that time. I may in this connection also refer to the evidence of' P. W. 1. who was the first informant himself and he stated in paragraph 13 of his deposition that he did not know that the accused persons had amalgamated plot Nos. 1112 and 1175 and had made them into one field and that plot No. 1175 was the only subject-matter of dispute of the proceeding under Section 145 of the Code of Criminal Procedure. A reasonable inference can also be drawn from this aspect of the matter that had the appellants brought about such changes and I would say material alterations in the physical features on the spot after the decision in the proceeding under Section 14,5 then it would have been expected that there would have been some trouble at that time and there must have been some complaints by the prosecution party, but there was no such complaint and there was no prayer ever made for action under Section 107 of the Code of Criminal Procedure or any other section against the appellants. In my opinion, this anomalous or I may say the difficult situation which has arisen is on account of the fact that the description of the land which had been given in the proceeding under Section 145 of the Code of Criminal Procedure was not the full and complete description and was necessary in the facts and the circumstances of the case. The lands in dispute which are the subject-matter of a proceeding under Section 145 of the Code of Criminal Procedure must be well ascertained by specification of boundaries and by giving plot number and khata number. There may be a case in which boundary may not be of very great importance and it may suffice to five only plot number and the khata number, but this would be in case where there has been no amalgamation on the spot and the boundaries and the ridges as existing in the survey map existed there. In such a case there may not be difficulty in locating and demarcating the subiect-matter of the dispute without the boundaries. It is very difficult to say as to what should be the description of a particular piece of land in a proceeding under Section 145 of the Code of Criminal Procedure so that it must be well ascertained and identified because this will depend on the facts and the circumstances of each case, but there can be no dispute on this point that the subject-matter of a proceeding under Section 145 of the Code of Criminal Procedure should be ascertained definitely and described clearly in the preliminary order,
14. During the course of the hearing attention was also invited to the preliminary order drawn up in the proceeding under Section 145 of the Code of Criminal Procedure and there also no boundary has been given but only the plot number and the khata number have been mentioned. If there is an omission to give clear specification of the subiect-matter of dispute then, in my opinion, it is a serious defect, if the parties were not at variance or in controversy about the exact identity and the extent of the land on the spot then this may not matter but there was a serious controversy between the Parties as to what was the extent of the land, then certainly a complete description was necessary. There can be no doubt in this respect that a final order in a proceeding under Section 145 of the Code of Criminal Procedure is conclusive order between the parties and it is intended to be effective until the party in whose favour the order is made is evicted in due course of law, that is to say, until a decision of a competent Civil Court. But to make an order conclusive and binding it is necessary, as I have already pointed above, that the order should be of such a nature that it should be well ascertained without reference to any other document. The preliminary order as well as the final order must show the exact location and the extent of the land which is the subject-matter of dispute. After a decision in a proceeding under Section 145 of the Code of Criminal Procedure the party aggrieved can so to the Civil Court and. therefore, an order under Section 145 of the Code of Criminal Procedure when it is finally passed no further step has to be taken so as to appoint any survey knowing pleader or Amin to go and exactly demarcate on the spot and to give delivery of possession of the same as can be done in Civil Court. The order, therefore, in this view of the matter, has to be very definite and precise so that the parties may not be left in doubt as to what was really the extent of the subiect-matter of dispute. The Magistrate in a proceeding under Section 145 of the Code of Criminal Procedure has also to decide not the right to possession or the rights of the parties, but only as to who was in actual possession and. therefore determination of the question as to what was the extent of possession is a very essential ingredient when passing final order in a proceeding under Section 145 of the Code of Criminal Procedure.
15. The learned Counsel appearing for the State has mainly relied on this fact that there was an end of the matter and it cannot be further agitated after the final order in the proceeding under Section 145 of the Code of Criminal Procedure specially when the appellants neither preferred any revision nor they filed any suit. It has been urged on the other hand by the learned Counsel for the appellants that the order passed by the learned Magistrate was without jurisdiction and for this reliance has been placed on some decisions, such as. in the case of Khartar Sao v. Pradip Singh where it was held that the subject matter of dispute must be ascertained definitely and described clearly in the preliminary order and that absence of clear specification of the subject of dispute is a vital defect and the final order passed in the proceeding can have no meaning, unless it is known for certain as to what is the subject of dispute in respect of which the final order has been passed. Reference has also been made to a decision of a Division Bench of this Court in the case of Chulai Mahto v. Babu Surendra Nath Chatteriee AIR 1922 Pat 224 and particularly to certain observations of their Lordships at page 226 of the report. It was contended before their Lordships that the lands could not be identified and as such the Deputy Magistrate could not award them possession of lands which did not exist. Their Lordships were of opinion that this is not a question of jurisdiction, and apart from this the petitioners throughout asserted that the lands mentioned in the proceedings could be identified, and they cannot now be allowed to assert the contrary; and that "they choose to wait and take the chance of judgment in their favour and cannot now be heard to complain of excess of jurisdiction". In that case it appears from the observations of their Lordships that there was no controversy on the point that the land was not identifiable; whereas in this present case on account of the amalgamation which was pleaded and has been shown by evidence in this case, it happen urged that the land could (sic) enticed. These two decisions, and there (sic) a number of decisions in this conned (sic) but all these, relate to a stage (sic) an application in revision under Sections 435 and 439 of the Code of Criminal Procedure was filed against the final order in the proceeding under Section 145. The learned Counsel for both the parties were not able to find any decision of this Court or any other Court directly on the point as to what would be the legal position in a situation like the present one viz. : where the final order cannot be said to be definite and clear with respect to the land in dispute and where in a criminal case the circumstances and the evidence show that although declaration was made in respect of the entire plot but factually speaking the party never came in possession of the entire plot. The physical features read alone with the circumstances which I have discussed above, not only clearly mutilate the assertion of possession but rather in my opinion show on the other hand that the prosecution party did not come in possession of the entire plot No. 1175. There can be one view of the matter that as found by the learned Magistrate the prosecution party was in possession of the entire plot and after declaration remained in possession of the entire plot No. 1175. Now if that had been so then the physical features as are existing would not have been existing and specially when there is no challenge that there had been a subsequent alteration or change in the physical features. It is possible that the final order may have been effective in this respect that only so much of plot No. 1175 which had not been amalgamated was in possession of the prosecution party and the prosecution party continued to be in possession of the same. If that be so. then the final order was effective only to that extent. In my opinion, though it cannot be laid down as a general rule, that in a situation like this when the final order creates such a situation complication and (sic) can be said not to be in respect of a land which could be clearly and definitely ascertained on account of the omission to give clear specifications then such a final order has to be treated as one without jurisdiction.
16. It appears that the defence also raised a plea to the effect that the prosecution party wanted to uproot seedlings of plot No. 1113 which admittedly belonged to the appellants. There was also amalgamation of some portions of plot No. 1175. as already mentioned above. So a very important question also arises for consideration as (sic) what was the place of occurrence his (sic) be no doubt that Izarat was lured in the occurrence and he aided between the matter was reported to the police station then in the first information report it was stated that the dead body was lying in the khet. The police officer had deputed a constable immediately thereafter and when the police officer visited then it appears from his evidence (vide P. W. 16) that he found the dead body of Izarat on the south west Aal of plot No. 1175. Now with reference to the map prepared by the Amin. this would be letter Ka and this plot according to the survey boundary is in north of plot No. 1175, but there is also a ridge on the spot which forms a block in 1175 and this is towards plot No. 1113. It also appears, from the evidence of the investigating officer that he found uprooted seedlings from plot No. 1113. Further it also appears that the place where indication has been given by letter 'gha' is a Piece of land measuring 29 decimals and it is part of plot Nos. 1175 and 1112. It also appears from the evidence of the investigating officer that he did not find any blood on the place indicated by letter 'Gha'. Now if the prosecution party went to uproot the seedlings and were uprooting the seedlings of plot No. 1113 then there can be no doubt that the appellants had the right of defence of property. Now if the interference was as alleged on behalf of the prosecution they were ploughing plot No. 1175 and the appellants interfered and there was the occurrence then in that view of the matter also if that portion was in possession of the appellants and the final order, as mentioned above, was without jurisdiction then certainly the appellants had also the right of defence of property in respect of the same. In a criminal case where right of private defence is pleaded by the accused persons then it is not necessary that they must prove beyond reasonable doubt the existence of the circumstances on which the right if founded. It would be sufficient in the case if the accused persons from the evidence on record merely make out a prima facie case and if from the evidence it appears probable that the defence version is true and they are entitled to a decision in their favour though they have not proved the truth of their version beyond reasonable doubt. It is also not necessary in such a case for the accused persons to lead evidence about the right of self defence and of property if the evidence on record and the circumstances themselves show or prove that. Reference in this connection may be also made to a Division Bench decision of our Court in the case of Narayan Raut v. Emperor AIR 1948 Pat 294.
17. The appellants in this case have been convicted under Sections 147, 148, 326/149 and 323/149 of the Indian Penal Code. I may also refer here in this connection to the charges which were framed in this case and the charges relating to the common object were:
.... were members of an unlawful assembly and did, in prosecution of the common object of such assembly, namely in assaulting Gulu Mahton. Girish Mahton and Izarat Mian and in ousting them from their lawful possession of land committed the offence...
There were, therefore, according to the charges two common objects one of these is for assaulting and as far as the common object of assaulting is concerned, it appears that this common object was not the direct common object and assault seems to have been the subsidiary act. Now the second common object is said to be ousting from their lawful possession. In the first place I may point out that in view of the evidence and the circumstances discussed above, it could not be a case of ousting from possession, but rather the acts committed by the appellants would be the acts in maintaining their possession. But certainly a question arises for consideration whether it was for the maintenance of their lawful possession. The question whether it was lawful possession or not, the matter has to be viewed in the light of the facts, as stated above as to what would be the effect of the final order in a proceeding under Section 145 of the Code of Criminal Procedure in such circumstances of the case. Section 141 of the Indian Penal Code lays down as to what would be an unlawful assembly as contemplated by the Code and we are concerned here with the fourth clause of this section which runs thus:
By means of criminal case or show of criminal force to any person to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way or of the use of water or other incorporeal right of which he is in possession or enjoyment or to enforce any right or supposed right...
As I have already held above that the portion although it may be a portion of plot No. 1175 vet factually it was in possession of the appellants, so it will not be covered by the fourth clause of Section 141 of the Indian Penal Code. The clause as stated above mentions "to take or obtain possession of any property" and, therefore, it does not make any mention of "maintaining possession or resisting an attempt to take possession." It will, therefore, not apply to an accused who is defending his possession in any property and the right of private defence as contemplated by the Code is not taken away if there is any action on the part of the accused persons in maintaining their, possession and defending their property. In this view of the, matter, the appellants cannot be held guilty either under Sections 147, 148 of any Section viz.. 323. 326 read with Section 149 of the Indian Penal Code.
18. The question in such a case has to be seen whether the accused persons exceeded the right of private defence. Now as far as the individual acts are concerned, two of the persons viz., Gulu and Girish received injuries and I have already mentioned about the injuries and the nature of injuries in the earlier part of my judgment vide page 8 of the judgment and the opinion of the doctor clearly shows that all these were simple injuries. In my opinion the appellants cannot be said to have exceeded the right of private defence in causing simple injuries, but the position of course is different with regard to the injuries caused on Izarat. The positive evidence on behalf of the prosecution is that there was a tangi injury on the head of Izarat and this was caused by Shankru Mahto, who is appellant No. 8.
19. As regards the injuries on Izarat, it has been contended on behalf of the appellants that the injuries found on him by the doctor do not fit in with the evidence led in the case. In the first information report it has been mentioned that Izarat was first assaulted by Charku with lathi and then with stone by Meghu and Izarat fell down and then all the fourteen began to assault him with their respective weapons and Shankru assaulted him with tangi. The evidence of the doctor (P. W. 121 to which I have also referred at page 7 of this judgment, clearly shows that he found only three injuries. True it is that if all the persons had assaulted then it would have been expected that there would have been some more injuries on the. person of Izarat. but this may either by embellishment or it may be that the witnesses were under the impression that all of them had assaulted him but that apart there was one injury which has been found and which is definitely by tangi and the doctor has been also of opinion that injury No. 1 which was an incised wound on the left side of the scalp would be caused by a tangi. The doctor was also of opinion that the death was due to brain injury viz.. injury No. 1 which was sufficient to cause death in ordinary course of nature. There was consistent evidence of the eve witnesses of the occurrence which they stated that this tangi blow was given by Shankru, appellant No. 8. But it has been submitted that these witnesses when examined before the police did not state that the blow had been given on the head. There was no doubt an omission about the part of the body on which this injury was inflicted, but the consistent evidence throughout is that tangi below was given by Shankru and out of the three injuries found on Izarat only one injury was by tangi which was fatal. In my opinion the fact that there was no mention about the Dart of the body on which this tangi blow was given was only an omission and not a contradiction, and I rely for this view of mine on a decision of the Supreme Court in the case of Tahsildar Singh v. State of U.P. . In my opinion, the prosecution was also to prove that this tangi blow was given by Shankru. appellant No. 8 and it was a fatal blow.
20. The conviction of appellant Shanktu has been under Section 302 of the Indian Penal Code, but in a case where right of private defence is pleaded and proved, but that right has been exceeded then the conviction can be under Section 304 and not under Section 302 of the Indian Penal Code. Section 300 lays down as to what are the cases in which a culpable homicide is murder, but several exceptions have been given and in a case covered by any of those exceptions the culpable homicide would not amount to murder. Exception 2 lays down that-
Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation and without any intention of doing more harm than is necessary for the purpose of such defence.
In view of the facts stated above clearly this would be a case which would be covered by exception 2 and. therefore. Shankru, appellant No. 8 is guilty not under Section 302. but under Section 304 of the Indian Penal Code. The injury inflicted by him was by a weapon such as a tangi and it was on the vital part of the body, such as, the head. The injury so caused and reported by the doctor was sufficient in the ordinary course of nature to cause death, and. therefore, Shankru is guilty under Part I of Section 304 of the Indian Penal Code.
21. In the result, therefore, the convictions of all these appellants and, sentences imposed upon them under Sections 147, 148, 323, 324, 323/149 and 326/ 149 of the Indian Penal Code are hereby set aside and all of them are acquitted of those charges. But appellant no. 8, Sankru Mahto is found guilty under Part I of Section 304 of the Indian Penal Code and with regard to the sentence having regard to all the facts and the circumstances of the case, I think the sentence of six years' rigorous imprisonment would meet the ends of justice and he (Shankru) is accordingly convicted and sentenced to undergo rigorous imprisonment for six years under Part I of Section 304 of the Indian Penal Code.
22. Accordingly, the appeal of all the appellants is allowed except of appellant No. 8, Shankru Mahto which is dismissed but with the modification in the conviction and sentence as indicated above. The appellants who have been acquitted and who are also on bail are discharged from the liability of their bail bonds.
P.K. Banerji, J.
23. I agree.