Patna High Court
Kameshwar Pd. Mishra & Ors vs State Of Bihar on 26 August, 2014
Author: Navaniti Prasad Singh
Bench: Navaniti Prasad Singh, Jitendra Mohan Sharma
Criminal Appeal (DB) No 89 of 1991
Against the judgment and order dated 26.02.1991 passed by Shri Sardar Bhagat
Singh, Additional Sessions Judge I, Darbhanga in Sessions Trial No 100 of 1981/
45 of 1987.
1 Kameshwar Mishra, son of late Buchhi Misra
2 Raj @ Rajendra Mishra, son of late Buchhi Misra
3 Indra Kant Mishra @ Kant Mishra, on of late Buchhi Mishra
4 Prabodh Mishra, son of late Buchhi Misra
5 Jawahar Mishra, son of Indra Kant Misra
6 Bhagwan Mishra, son of Rajendra Misra
7 Phul Kant Mishra, son of Rajendra Misra
8 Katori Mishra @ Babu Saheb Mishra, son of Rajendra Mishra
9 Kusho Mishra @ Kusheshwar Mishra, son of late Sukhdeo Misra
10 Gajendra Mishra, son of Kusheshwar Misra
11 Ambodh Mishra, son of Kusheshwar Misra
12 Mahendra Mishra, son of Kusheshwar Misra, residents of Village - Korthu,
Police Station - Ghanshyampur, District - Darbhanga
.... .... Appellant/s
Versus
State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : M/s Bidhanesh Mishra, Rajendra Kumar Jha &
Tanya Mishra, Advocates
For the S t a t e : Mr Ajay Mishra, APP
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CORAM: HON'BLE MR JUSTICE NAVANITI PRASAD SINGH
And
HON'BLE MR JUSTICE JITENDRA MOHAN SHARMA
ORAL JUDGMENT
(Per: HON'BLE MR JUSTICE NAVANITI PRASAD SINGH) This is an appeal by the twelve appellants under Section 374 of the Code of Criminal Procedure (Cr P C) against the judgment of conviction and sentence as passed against them by the Additional Sessions Judge I, Darbhanga in Sessions Trial No 100 of 1981/45 of 1987 being judgment and order dated 26th February, Patna High Court CR. APP (DB) No.89 of 1991 dt.26-08-2014 2 1991. All the twelve appellants have been sentenced to imprisonment for life. All twelve appellants have been found guilty under Section 302 read with Section 149 of Indian Penal Code (IPC). Appellant No 11 Ambodh Mishra has further been found guilty for offence under Section 307 of IPC and sentenced to 10 years rigorous imprisonment. Appellant No 1 Kameshwar Mishra is further found guilty under Section 109 read with Sections 302/307/149 of IPC for which he has been further sentenced to 10 years rigorous imprisonment. All the appellants except appellant No 8 Katori Mishra @ Babu Saheb Mishra have been further found guilty under Section 148 of IPC and sentenced to two years rigorous imprisonment. Accused appellant No 8 Katori Mishra @ Babu Saheb Mishra has been found guilty under Section 147 of IPC and sentenced to one year additional rigorous imprisonment for that offence. All the sentences are to run concurrently in respect of all the appellants.
When this appeal was taken up, it was pointed out that appellant No 9 Kusho Mishra @ Kusheshwar Mishra, appellant No 10 Gajendra Mishra and appellant No 12 Mahendra Mishra have since died. We have no reason to disbelieve the statement inasmuch as appellant No 9 would be now about 104 years old. Appellant No 10 would be about 76 years old. Appellant No 12 would also be Patna High Court CR. APP (DB) No.89 of 1991 dt.26-08-2014 3 above 50 years of age and is the son of appellant No 9. The appeal in relation to these three appellants, thus, stands abated.
Shri Bidhanesh Mishra, learned counsel appearing in support of the appeal also points out that so far as appellant No 5 Jawahar Mishra and appellant No 6 Bhagwan Mishra are concerned, both were minors at the time when offence is said to have been committed on 06.09.1980. Our attention has been drawn to order dated 10.05.1991 passed in this appeal whereby appellant No 6 Bhagwan Mishra and appellant No 5 Jawahar Mishra were granted bail considering this aspect of the matter. We would have ordinarily referred the matter of these two appellants to the Juvenile Justice Board, Darbhanga for consideration of their age in view of Section 20 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as the Act) but we do not propose to detain the whole appeal for that matter for the reasons that Section 20 of the said Act provides that in case of any pending proceeding, pending on the day when that Act came into force that is with effect from 01.04.2001, those proceedings would continue as if this Act had not come into force. The only benefit which a juvenile in conflict with law would get is that instead of being sentenced, his matter is to be referred to the Juvenile Justice Board for necessary orders in respect of sentence, that could be passed in respect of the juvenile. Patna High Court CR. APP (DB) No.89 of 1991 dt.26-08-2014 4 We are of the considered opinion that Juvenile Justice Act, 1985 has no application to the present case inasmuch as under that Act, a juvenile meant a person upto the age of 16 years. Both these appellants, as per their age assessed by the Court when their statements were recorded under Section 313, Cr P C would 17 years and about 18 years respectively. Therefore, the 1985 Act has no application. We have proceeded with the hearing because if the appellants are to be acquitted then there is no point delaying the matter. If, apart from others, these two appellants are to be convicted then having passed the order of conviction, we would only delay the matter of passing sentence if they are found to be minors or juvenile under the 2000 Act then no sentence can be passed sentencing them to prison. By now, they would be about 50 years of age and surely the Juvenile Justice Board is not expected to deal with them. In that event, even though they would be convicted, they would not be sentenced in any manner but the determination of age on the date of occurrence would be a matter which could be dealt with by the Juvenile Justice Board, Darbhanga in accordance with the Act and the Rules framed thereunder. That eventuality will only come if we find either of them guilty of any offence. We now proceed to deal with this appeal on merit.
The prosecution case is based upon Fardbayan of Patna High Court CR. APP (DB) No.89 of 1991 dt.26-08-2014 5 Sheela Kant Jha (PW 15) as recorded on 06.09.1980 at about 8.40 pm in the State Dispensary at Bahera Primary Health Centre by Shri S P Singh, ASI of Bahera Police Station, District - Darbhanga. In the Fardbayan, as recorded, it is alleged that on 06.09.1980 at about 2.30 pm when the informant Sheela Kant Jha (PW 15) and his brother Puni Kant Jha, the deceased were grazing their cattle, they saw Rajeshwari Devi (PW 11) running being chased by the 12 appellants who were variously armed with lathi, bhala, farsa and shouting Maro - Maro (kill-kill). The informant and his brother then came to the rescue of Rajeshwari Devi (PW 11). All the appellants then surrounded them. Sheela Kant Jha then asked appellant No 1 Kameshwar Mishra as to why they are tormenting this lady. She should be left upon which appellant No 1 ordered the rest to kill these two whereupon all the appellants attacked the informant and his brother. Both of them fell down being variously injured. The motive attributed is that Rajeshwari Devi (PW 11) is a childless widow and allegedly appellant No 1 Kameshwar Mishra having set up imposter lady, got certain land belonging to Rajeshwari Devi (PW
11) transferred to himself and when Rajeshwari Devi (PW 11) was harvesting from those lands, she was sought to be killed. Upon this statement, as made in injured state, the case was registered. On the next day that is 07.09.1980, Puni Kant Jha, the brother of the Patna High Court CR. APP (DB) No.89 of 1991 dt.26-08-2014 6 informant died in course of treatment. Police took up investigation and submitted chargesheet against the appellants. Charges under various heads having been framed and the appellants having pleaded not guilty, the trial started. In the trial, prosecution examined as many as 22 witnesses. Defence also examined 10 witnesses. The trial Court, after perusing the evidence, held the appellants guilty and, hence, the appeal.
So far as the prosecution witnesses are concerned, one witness that is PW 14 Gumani Mushhar, who was a labourer and was tendered has been declared hostile because in his cross-examination upon being tendered, he has not supported the prosecution case. Out of the rest, PW 2 Ram Naresh Choudhary, PW 3 Ram Naresh Tiwary, PW 9 Harish Chandra Jha, PW 12 again the same Harish Chandra Jha, PW 19 Ram Udar Jha and PW 20 Gauri Shankar Jha are formal witnesses. They have only proved the Fardbayan, the registered FIR, rent receipts of the land which was allegedly being harvested by Rajeshwari Devi (PW 11). PWs 1, 4, 5, 6, 7, 8, 10, 13 are eye witnesses to the occurrence. PW 11 is Rajeshwari Devi herself. PW 13 is Rajni Kant Jha on whose land, this incident took place. PW 15 Sheela Kant Jha is the informant and the brother of the deceased. PW 16 is Ramchandra Jha who is the Investigating Officer. PW 17 is Dr Surendra Nath Singh who was the first doctor Patna High Court CR. APP (DB) No.89 of 1991 dt.26-08-2014 7 who was responsible for drawing up the injury report of the informant and his injured brother. PW 18 is Dr V C S Verma who is the doctor at Darbhanga Medical College & Hospital (DMCH) and who conducted the post mortem examination.
We would first like to point out that so far as injuries on the informant PW 15 Sheela Kant Jha is concerned and the ante mortem injuries, as found on Puni Kant Jha, the deceased, as proved, have not been challenged. They may be noticed at the very outset. So far as the injuries on Puni Kant Jha are concerned, he had a skull injury fracturing his frontal bone which was the cause of death. Thereafter, there were multiple bruises with abrasions, several punctured wounds in all about six in number. As per the opinion of the doctor, injury No 1 was grievous and some of the other injuries were dangerous to life being piercing wounds at the lungs. They were caused by sharp pointed weapon which could be bhala and some by sharp cutting weapon which could be farsa. Thus, the deceased had about 8 injuries on various parts of his body from head to toe. So far as the injuries on the person of the informant PW 15 is concerned that is proved by PW 17 Dr Surendra Nath Singh. He was medically examined on the same day that is 06.09.1980. He had three injuries (i) an incised wound on the skull in the middle which was simple in nature caused by heavy sharp weapon which could be Patna High Court CR. APP (DB) No.89 of 1991 dt.26-08-2014 8 Garasa, (ii) incised penetrated wound deep over middle of left shoulder which was simple in nature caused by bhala and (iii) incised penetrated wound deep over middle of left leg simple in nature again caused by bhala. Thus, when we see the injuries on the two persons that is PW 15 and his deceased brother, two things are clear. Both have multiple injuries and caused by different weapons implying number of people involved in causing those injuries.
Now we come to the evidence of the witnesses. The eye witnesses, as noted above, in their deposition in the Court apart from identifying the appellants who were present, have been consistent in their evidence. All of them which include some of the labourers, who were working for Rajeshwari Devi (PW 11), are consistent in deposing that Rajeshwari Devi (PW 11) was chased by about 10 to 15 persons including the appellants who were all variously armed with lathi, bhala and farsa. Informant (PW 15) and his brother were grazing their cattle on the land of Rajni Kant Jha (PW 13). They came to the rescue of this lady and questioned appellant No 1 Kameshwar Mishra who was leading the mob as to why they want to kill her. Upon this, appellant No 1 Kameshwar Mishra, as per consistent evidence, told the mob that these two brothers are saving Rajeshwari Devi (PW 11) and, as such, they should be killed. It is upon this order of appellant No 1 Kameshwar Patna High Court CR. APP (DB) No.89 of 1991 dt.26-08-2014 9 Mishra that all the appellants started assaulting first Puni Kant Jha being hit first on the head with the farsa blow given by Prabodh Mishra (appellant No 4) followed by another farsa blow by Ambodh Mishra (appellant No 11) who fell to the ground when he is attacked by spear and beaten by lathi. There are minor variations amongst the prosecution witnesses as to exactly who hit whom and where, but the consistency is that all the appellants used whatever arms they had. In such a situation, it cannot be expected that any or all the witnesses would give graphic details as if they were recording the whole event meticulously. There is only one difference when we come to the injuries caused on the informant Sheela Kant Jha (PW 15). He and some of the witnesses have deposed, not all of them that when Sheela Kant Jha (PW 15) tried to run, appellant No 1 Kameshwar Mishra threw the spear which was in his hand which injured him on his ankle and he fell down. Witnesses are consistent that even appellant No 1 Kameshwar Mishra was armed with spear. One of the witnesses, namely, PW 4 Mahendra Jha does not specifically state that appellant No 1 Kameshwar Mishra ordered for killing of the two brothers Sheela Kant Jha (PW 15) and Puni Kant Jha, the deceased. Learned counsel for the appellants submits that this makes the prosecution version inconsistent. We are unable to accept this. Inconsistency in a story or in a consequence means where two things Patna High Court CR. APP (DB) No.89 of 1991 dt.26-08-2014 10 cannot stand together on the same platform. When, in a short time, 12 persons attacked two persons and they are mercilessly beaten, it is difficult for any witness to specifically, individually identify all actions. Witnesses are not watching the event being invited to it like a cinema which would remain in memory but they have become witnesses to an event which all of a sudden happens in their presence. The perception and memory differs. There is a general consistency as witnesses have clearly, without conflict, named which of the appellants was carrying spear, which of the appellants was carrying farsa and appellant No 8 Katori Mishra was only holding a lathi but none of the witnesses have stated that he even used it. Upon perusing the evidence of the prosecution witnesses, who are eye witnesses, we are of the view that there is a general, reliable consistency amongst them as to the manner of occurrence and the assault including the fatal assault which evidence remains unshaken.
We then may discuss the evidence of four persons from the prosecution. One is Rajni Kant Jha (PW 13). He is the person on whose land this incident took place. He has fully supported the prosecution version having seen the same as well. He has been cross-examined at length but, in our view, his evidence has remained unshaken. We then have Rajeshwari Devi (PW 11), the lady in trouble. She states that her husband having died and she Patna High Court CR. APP (DB) No.89 of 1991 dt.26-08-2014 11 being childless, she had inherited lots of agricultural properties. Appellant No 1 Kameshwar Mishra wanted to usurp her property. He had set up an imposter and got transferred her lands to himself and then started litigations to take possession thereof. Litigations like civil suit, Sections 144, 145, Cr P C proceedings were pending. It is in that connection when she had gone to harvest her paddy with her labourers and was carrying the same that appellant No 1 Kameshwar Mishra led the mob of 12 persons, variously armed, chasing her to kill her. She was rescued by PW 15 Sheela Kant Jha and his brother Puni Kant Jha, the deceased who were grazing their cattle. When the two men objected, they were beaten up and later Puni Kant Jha died. She has specifically stated that it was appellant No 1 Kameshwar Mishra who ordered that the two men should be killed upon which they were assaulted. She managed to escape. We then have PW 15 Sheela Kant Jha himself who again duly supports the whole sequence of events and remained unshaken.
We then have the defence version. From the suggestions given to the prosecution witnesses, the only thing that the defence suggests is that the dispute essentially is with regard to possession of lands purchased by appellant No 1 Kameshwar Mishra. The dispute is with regard to the title to those lands. The suggestions are given that in fact Rajeshwari Devi (PW 11) has four sisters-in- Patna High Court CR. APP (DB) No.89 of 1991 dt.26-08-2014 12 laws who also had interest in the property of their father who happens to be father-in-law of PW 11 Rajeshwari Devi. Those four were from the second marriage of the father-in-law. They had sold some lands to appellant No 1 Kameshwar Mishra but it was PW 11 Rajeshwari Devi who was not letting appellant No 1 Kameshwar Mishra take possession and, hence, the suits and proceeding under Section 145, Cr P C but how did PW 15 Sheela Kant Jha received injuries and how did Puni Kant Jha, the deceased received fatal injuries are not at all sought to be explained. What is then suggested is that there is a counter version of the incident by the defence which offers the true story. Let us now examine that. It is stated that appellant No 7 Phul Kant Mishra had filed a complaint before the Chief Judicial Magistrate, Darbhanga which was referred for investigation under Section 156 (3), Cr P C. In that case, the two brothers that is PW 15 Sheela Kant Jha, Puni Kant Jha, the deceased and several of the prosecution witnesses were made accused. The defence version, as given in the complaint, was that the land was in possession of appellant No 1 Kameshwar Mishra but was wrongly being harvested by PW 15 Sheela Kant Jha and the deceased Puni Kant Jha being representatives of PW 11 Rajeshwari Devi. This led to an altercation between appellant No 1 Kameshwar Mishra and others (the defence) on one side and PW 15 Sheela Kant Jha, the Patna High Court CR. APP (DB) No.89 of 1991 dt.26-08-2014 13 deceased Puni Kant Jha and others (the prosecution) on the other side. To buttress their complaint, two injury reports in respect of two persons of defence, Exhibits J and J/1 have been produced. They have been sought to be proved by Dr Girija Nandan Lal (DW 8) showing that he examined Phul Kant Mishra (DW 9) and appellant No 6 Bhagwan Mishra on 07.09.1980. DW 9 Phul Kant Mishra, the complainant had a fractured hand which was plastered by the doctor. There is not a whisper about any injury on PW 15 Sheela Kant Jha or the deceased Puni Kant Jha. Shri Ajay Mishra, learned APP points out that the defence version is a story later built up after it was known that Puni Kant Jha had died. He points out that the incident took place on 06.09.1980 in the afternoon and the Fardbayan of PW 15 Sheela Kant Jha recorded on the same day and the case was, accordingly, registered. The next day that is on 07.09.1980, Puni Kant Jha died. It is on 08.09.1980 that the complaint is filed with an injury report dated 07.09.1980. The injury report is given by DW 8 Dr Girija Nandan Lal who, at that time, was not a Government doctor. Learned APP impeaches the injury report that is Exhibits J and J/1 by pointing out to the evidence of the said doctor that though he was a retired Civil Surgeon and the injury reports prepared by him suggested and opined that they were injuries caused by spear and farsa still he did not take steps to inform the police. He admits that Patna High Court CR. APP (DB) No.89 of 1991 dt.26-08-2014 14 for the two defence witnesses who got the injury report prepared on the next day of occurrence, to come to his clinic, they would have to cross two Police Stations and the DMCH itself. He admits that he retired as Professor of Pathology from DMCH in 1979 itself. A suggestion is also given to him that he is being proceeded by Court in other matter for having issued forged medical certificate which, of course, he denies but he does not deny that he is noticed by other Courts. This question is also put to the complainant who is DW 9 Phul Kant Mishra and is injured who confirms that he crossed the Police Stations and the DMCH still he visited the doctor on the next day and filed the complaint yet thereafter. Learned APP submits that the complaint is belated and an afterthought. Here, Shri Mishra, learned counsel for the appellants points out as from the evidence of DW 9 itself, 06.09.1980 is a Saturday. The defence persons injured are examined by doctor on Sunday and, accordingly, on Monday, the complaint is filed. The delay is, thus, explained in a way. Further, the manner in which the injury report is manufactured by the defence, no information is given to the police by the doctor or by the defence. Even in the complaint filed by the defence, there is no averment as to how PW 15 Sheela Kant Jha and the deceased Puni Kant Jha got injuries and how Puni Kant Jha died because by the time complaint was drafted and filed, Puni Kant Jha was already Patna High Court CR. APP (DB) No.89 of 1991 dt.26-08-2014 15 dead raises serious doubts about the correctness of the defence complaint and its bona fide. However, merely because the defence is unable to prove its defence is no ground for upholding conviction because it is well settled that prosecution must prove its case on its own evidence beyond reasonable doubt.
The basic charge which would bind all the appellants is under Sections 302/149 of IPC. So far as the question that this mob of 12 persons, led by appellant No 1 Kameshwar Mishra, was an unlawful assembly, cannot be disputed. They were all armed by various weapons, may be bhala, farsa and lathi. They were all chasing the lady Rajeshwari Devi (PW 11). She was rescued by Sheela Kant Jha and Puni Kant Jha. They having stood between Rajeshwari Devi (PW 11) and the mob, appellant No 1 Kameshwar Mishra ordered the two of them to be killed. Upon this, the two were assaulted leading to various injuries including about seven injuries on the person of the deceased Puni Kant Jha including breaking of skull. He was pierced with spear at different places and died in about 24 hours in the Hospital in course of treatment. In our view, it is clear case of conviction under Section 149 of IPC and as Puni Kant Jha had been assaulted with intention to kill and upon orders to kill and he died as a consequence of the injuries received, an offence under Section 302, IPC had been committed. Thus, in our view, there is no Patna High Court CR. APP (DB) No.89 of 1991 dt.26-08-2014 16 escape from conviction of all the appellants irrespective the individual part played by them of being held guilty under Sections 302/149 of IPC. They would equally be guilty of an offence under Sections 307/149 of IPC.
However, on behalf of appellants, Shri Mishra submits that it is not a case covered by Section 149 of IPC. According to him, a conviction, with the aid of Section 149 IPC, can be made only if all the accused persons knew that an offence is likely to be committed and knowing that they joined the unlawful assembly. In our view, the submission in law is not correct and has no application in the facts of this case. The reliance placed on the judgment of the Apex Court in the case of Roy Fernandes -Versus- State of Goa and Others since reported in (2012) 3 Supreme Court Cases 221 is not correct. On facts, the case is distinguishable. There the Apex Court found that three persons had come upon a call to stop the deceased from erecting the fence. There had been a longstanding dispute with regard to erecting of fence. In course of argument, one of the three persons took out a knife and stabbed the deceased in the thigh which cut one of his arteries and which led to profuse bleeding resulting into his death before he could be taken to Hospital. All the three were convicted under Sections 302/149, IPC whereas the person who stabbed was separately convicted under Section 302, IPC Patna High Court CR. APP (DB) No.89 of 1991 dt.26-08-2014 17 as well. The High Court upheld the convictions. The matter came before the Supreme Court. The person who was charged under Section 302 of IPC, his conviction under Section 302 of IPC was upheld. The appeal was by the other two persons who were not found guilty under Section 302 of IPC simpliciter. The Court held that there was nothing on the record to show that either these two persons knew that the third was likely to stab to death the deceased nor they were armed in such way to suggest that they had intentions to harm the deceased in any manner. Thus, the Apex Court held that Section 149 of IPC could not be applied. We have examined Section 149 of IPC which is quoted hereunder :
"149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.- If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."
It is in two parts. The first predicates that whenever an offence is committed in pursuance to common object, all persons of the unlawful assembly would be guilty of that offence. This part predicates an offence in furtherance of a common object which may be committed by any person of the unlawful assembly and makes all Patna High Court CR. APP (DB) No.89 of 1991 dt.26-08-2014 18 members vicariously liable. The other part is where people know that an offence is likely to be committed by an unlawful assembly and they joined the unlawful assembly then again all of them, irrespective of the act done, becomes liable by the offence so committed by another. This is the law consistently held by the Court in relation to liability which is vicarious in terms of Section 149 of IPC.
To the facts of the present case as we have found that the prosecution evidence is consistent that the 12 appellants, variously armed, came chasing the lady shouting Maro - Maro. It was clearly an unlawful assembly pursuing the lady Rajeshwari Devi (PW 11). When the two brothers came to her rescue then the malice towards the lady got transferred to these two gentlemen who then were physically assaulted by the mob upon orders of killing them by appellant No 1 Kameshwar Mishra. Therefore, if we see the sequence of events, there is no manner of doubt that they all had formed an unlawful assembly variously armed to kill or at least bodily harm the lady. The two brothers came in way. Upon orders of appellant No 1 Kameshwar Mishra to kill, all of them assaulted the two brothers. What it would be, if not, in pursuance to the common object virtually all of them have taken part in the assault? It matters little as to who struck whom? In such a situation, even if Patna High Court CR. APP (DB) No.89 of 1991 dt.26-08-2014 19 person like appellant No 8 Katori Mishra @ Babu Saheb Mishra who was merely present in the mob and had come running with the mob taking lathi but did not use it even he becomes liable under Sections 302/149 of IPC. The offence committed, in pursuance to the common object, is writ large.
In fairness to Shri Mishra, learned counsel for the appellants we must notice another limb of his defence argument. He submits that the appellants have exercised their right of private defence. They may have exceeded the same for which, if at all, they can be convicted under Section-304 Part-I IPC and for that he relies upon two recent judgments, being in the case of State of Rajasthan Vs. Manoj Kumar since reported in 2014 CRI. L. J. 2420 and a judgment dated 25.07.2014 passed by this Court in Criminal Appeal (DB) No.188 of 1991 with an analogous appeal in the case of Sheikh Sarfuddin Vs. the State of Bihar. We are not impressed.
From the events noted above, it is evident that it is not the appellants who were on the land and their possession was threatened by P.W.11-Rajeshwari Devi. They thus had no right of private defence. The prosecution case established, as found by us, is that Rajeshwari Devi was chased by the mob led by appellant no.1. The mob was variously armed. They were shouting Maro-Maro (kill-kill). She was given protection by the informant and his Patna High Court CR. APP (DB) No.89 of 1991 dt.26-08-2014 20 brother. Both of them were variously assaulted. Puni Kant Jha, the deceased, had a broken skull and in all 8 injuries were found, several being piercing bhala injuries, all over his body. In such a situation, can it be said that the appellants were exercising right of private defence against an unarmed lady or unarmed brothers. The intention to kill is writ large even before the altercation started. The two judgments have no application to the present case and it cannot be that the appellants could be considered for conviction under Section- 304 Part-I IPC instead of Section-302 IPC.
Another argument made is that defence through DW 10 proved various relationships as between Rajeshwari Devi, Shashi Kant Jha, Puni Kant Jha and some other witnesses. It is then stated that they are all interested witnesses and as such their testimony should not be relied upon. We may point out firstly that merely because a witness is interested witness, in some manner, that does not mean that his testimony has to be discarded totally. At best, it has to be viewed with caution. The manner in which the entire incident took place including the manner in which injuries were sustained on the prosecution side and not even attempted to be explained by the defence makes us to believe that even though the parties may be distantly related, that is no ground to discard their evidence from otherwise unshaken testimony in the Court. There are Patna High Court CR. APP (DB) No.89 of 1991 dt.26-08-2014 21 independent witnesses to support the prosecution case and to corroborate the evidence of the so called interested witnesses. We see no reason to discard the prosecution evidence as unreliable or untrustworthy in the circumstances aforesaid.
Thus, we have no option but to uphold the conviction of all the appellants. The appeals against the judgment of conviction and sentence of the appellants are dismissed with the exception of appellants nos.5 and 6 in respect of the sentence alone.
So far as appellants No 5 and 6 are concerned, for the reasons given in the very beginning of the judgment, their convictions are upheld but so far as sentencing is concerned, as plea of minority has been raised which is prima facie correct, we have no option but to refer their cases to the Juvenile Justice Board, Darbhanga which would decide the issue of minority of these two appellants as on the date of occurrence in accordance with the provisions of the Act and the Rules framed thereunder and send its view and opinion to this Court within a period of six months from today. These appellants would be liable to cooperate in the matter of enquiry. Upon receipt of the report, this case would be listed in respect of these two appellants only for further orders as to sentence in terms of 2000 Act or otherwise.
The result is that the appeals of appellant nos.9, 10 Patna High Court CR. APP (DB) No.89 of 1991 dt.26-08-2014 22 and 12 abates. Appeals of appellant nos.1, 2, 3, 4, 7, 8 and 11 are dismissed. They must surrender in the trial court to serve their sentence. While conviction of appellant nos.5 and 6 are upheld, their sentencing would depend upon the report/order of the Juvenile Justice Board, Darbhanga.
(Navaniti Prasad Singh, J) (Jitendra Mohan Sharma, J) Patna High Court, The 26th of August, 2014, AFR, M E Haque/-
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