Patna High Court
Satya Narain Bhagat And Anr. vs State Of Bihar on 18 September, 1991
Equivalent citations: 1992(40)BLJR673, 1992CRILJ2156
Author: Nunumani Prasad Singh
Bench: Nunumani Prasad Singh
JUDGMENT Nunumani Prasad Singh, J.
1. Both the appellants have been convicted Under Section 302 of the I.P.C. for committing murder of Sheo Pujan Bhagat and have been sentenced to imprisonment for life.
2. The Prosecution case, as set out in the first information report, Ext. 2, is that on 18-3-1975 the informant Janki Bhagat, P.W. 9 learnt that the appellants alongwith other accused 15-20 unknown persons, armed with various weapons were harvesting Rahar Crop from his field, bearing plot No. 1331 of village Nautan. The informant, alongwith Brij Bihari Prasad, P.W. 1 Rama Pandey, P.W. 3 Raghunath Rai P.W. 5, Parsuram Pandey P.W. 6 and some other villagers went there and protested whereupon appellant Satya Narain Bhagat, who was armed with a Bhala and Jai Prakash Bhagat with a Farsa, chased them, along with other accused through the field of Sheo Pujan Bhagat, since deceased. The deceased who was upfooting line seed plants from his field, situated adjacent north of the informant's field, along with his brother Sheojee Bhagat, P.W. 2 protested and told them not to trample his crop upon which appellant Satya Narain Bhagat gave two Bhala blows to the deceased causing incised wound on the left side of his chest and on his left arm. The deceased fell down in the field, then appellant Jai Prakash Bhagat, gave him a farsa blow causing one incised wound on the right side of his face near the ear. On alarm, raised by the informant the appellants fled away, along with their associates and accused persons. Sheo Pujan Bhagat was brought near 'Seesam' tree, situated near the place of occurrence and from there he was removed to Nautan Health Centre for treatment where he was declared dead. Mahal Chaukidar, Ran Mangal Chaudhary, P.W. 7 and Dafadar Quitubuddin were called and they brought the dead body of the deceased to Mairwa P. S. The informant Janki Bhagat, P.W. 9 lodged first information report, Ext. 2 at the police station which was recorded by the sub-Inspector, Damodar Prasad Singh. P.W. 12 at 7-15 p.m. and he took up investigation of the case.
3. After the charge-sheet and cognizance, the case was committed to the court of session for trial.
4. The accused in defence, denied the prosecution case as alleged in the FIR. Their further defence, was that this case was instituted by the informant Janki Bhagat, P.W. 9 as a counter blast to Mairwa P.S. case No. 9/75, which was earlier instituted by the appellant Jai Prakash Bhagat relating to the same occurrence, stating that they were in possession of plot No. 1881 as Bataidar under Bhahma Singh, a rightfull owner of the land. On the alleged date and time of occurrence, while his mother Sugiya Devi was cutting grass in the field, about 50 persons came there shouting slogan and started harvesting the crop from the field. When appellant Jai Prakash along with others went there and protested Raghunath Ram, P.W. 5, Janki Bhagat P.W. 9 Brij Bihari Prasad P.W.1, Ganesh Dhobi P.W. 4 and deceased Sheo Pujan Bhagat and Ors. assaulted them with their respective weapons. On hulla prosecution party members fled away. He, his mother Sugia and appellant Satya Narain Bhagat were removed to the Hospital, where his fardbeyan Ext. 1 was recorded and FIR. Ext. H was drawn up. After charge-sheet and cognizance, the case was committed to the court of session for trial.
5. The defence, also examined five D. Ws. out of them D.W. 1, Dr. M.N. Singh had examined Sugia and the two appellants at Mairwa Hospital and had referred them to Siwan Hospital for treatment where they were treated by D.W. 3 Dr. S. B. Singh, D.W. 4 Brahma Singh claims to have purchased plot No. 1331 and let out the same on Batai to the appellants. D.W. 2 and 5 are formal witnesses. They have proved some documents.
6. Out of 12 witnesses examined by the prosecution P.W. 10 Janardhan Prasad, P.W. 11 Amarnath Prasad are formal witnesses. They have proved sale deeds (Exts. 3 and 3/1) which stands in the name of informant Janki Bhagat, in respect of plot No. 1331, P.W. 6 Parsuram Pandey, has been declared hostile. P.W. 7 Raj Mangal Chaudhary, Chaukidar, has been tendered. P.W. 8 Dr. Lakhi Chandra Prasad, has held the autopsy on the dead body of the deceased and has proved the post mortem examination report, Ext. 2, P.W. 12 Damodar Prasad Singh is the Investigating Officer of this case. P.W. 1 Brij Bihari Prasad, P.W. 2 Shivjee Bhagat, P.W 3 Rama Pandey, P.W. 4 Ganesh Dhobi, P.W. 5 Raghunath Rai, P.W. 6 Parsuram Pandey and P.W. 9 Janki Bhagat the informant, are eye witnesses to the occurrence.
7. The genesis of occurrence, is a dispute with regard to title and possession of plot No. 1331. The informant Janki Bhagat, P.W. 9 has claimed that Kapildeo son of Bhirgun Bhagat had inherited considerable property from his cognates Mostt. Tetri, widow of Lachhan Koeri and a nephew of his maternal grand father Kunj Bihari had surrendered her interest in the property in favour of Kapildeo through a deed of surrender. Beside, this he also had inherited property of his maternal grand father. After the death of Mostt. Tetri, appellant Satya Narain Bhagat, brought Title suit No. 112 of 49 in the court of Sub Judge, IInd Court, Chapra against Kapildeo, for declaration of his title, recovery of possession of the suit property as well as for cancellation of the deed of surrender, executed by Mostt. Tetri in favour of Kapildeo. Kapildeo lost the suit in the lower court. Thereafter, he preferred an appeal before the High Court being F.A. No. 75/51. During the pendency of the appeal, Kapildeo died. The appeal was ultimately compromised by Bhirgun on 4-4-1958.
8. All amongst other property plot No. 1331 was divided half and half vide Compromise petition, Exts. 7 and 19 Kathas, towards the north was allotted to Bhirgun and remaining 19 kathas towards the south was allotted to the appellant Satya Narain Bhagat in the compromise. Out of 19 kathas, 9 kathas was sold to him by Bhirgun in the year 1973 by means of two registered sale deeds Exts. 8 and 8/1 and remaining 10 kathas was sold to Sati Sonar. After the purchase he came in possession of the land and had grown Rahar crop in the half portion towards the west and on the remaining half portion he had grown wheat. The informant further claimed that Kapildeo died issueless, and Laxminia was not his daughter.
9. Whereas, the defence was that Kapildeo had predeceased his father Bhirgun Bhagat. He died leaving behind a daughter Laxminia who inherited his property as his heir and successor. Laxminia sold plot No. 1331 to Brahma Singh in 1969 by means of registered sale deed, Ext. G and since then Brahma Singh is exercising his acts of possession over the land as an owner. The name of Brahma Singh was mutated in the Revenue Register and Anchal Adhikari and he obtained rent receipt, Ext. F. Subsequently, Brahma Singh let out this land on Batai to the appellant Satya Narain Bhagat and he had grown Rahar crop thereon.
10. The defence, is supported by Ladabi deed dated 21-11-1973, Ext. E executed by Bhirgun Bhagat in favour of Brahma Singh in respect of some other lands. There is clear recital in the deed that Kapildeo inherited considerable property from his cognates and he died leaving behind a daughter Laxminia. According to Section 8 of Hindu Succession Act, 1956 the property of a male intestate devolves firstly upon the son, daughter and other heirs specified in Class I of the schedule. Father, comes in Class II of the schedule. The heirs in Class I, take simultaneously to the exclusion of all other heirs and on failure of any such heirs specified in Class I, the property devolves upon the enumerated heirs specified in Class II.
11. Laxminia, accordingly inherited the property of her father Kapildeo being Class I heir. Bhirgun Bhagat being Class II heir of the deceased had no right of inheritance in the property of deceased Kapildeo. It is well settled that no one can convey better title than what he has. Brahma Singh who is a transferee from Laxminia appears to have better title over the lands, transferred to him by Laxminia.
12. As regards, the possession is concerned, it appears that two of the prosecution witnesses have clearly admitted, the possession of the appellant Satya Narayan Bhagat, P.W. 6 Parsuram Pandey has admitted that appellant Satya Narain Bhagat had grown the Rahar crop, P.W. 7 Raj Mangal Chaudhary village Chowkidar has admitted in his cross-examination that the P.O. land was in possession of appellant Satya Narain Bhagat. The Investigating officer D. P. Singh, P.W. 12 has stated that after the investigation he came to the conclusion that the appellant Satya Narain Bhagat was in possession of the P.O. land. The informant Janki Bhagat, P.W. 9 in his evidence has admitted that earlier also, he had instituted a case of theft of wheat from plot No. 1331 against appellant Satya Narain Bhagat. The informant Janki Bhagat has further admitted in para 10 of his evidence that plot No. 1331 stands mutated in the name of Brahma Singh. The rent receipt, Ext. F granted to Brahma Singh also confirms it. The preponderance of probability regarding the possession of plot No. 1331 is thus is in favour of appellant Satya Narain Bhagat.
13. As regards the prosecution case that deceased Sheo Pujan Bhagat owned and possessed land in the northern boundary of plot No. 1331 is concerned, the same is not supported by the documents filed by the prosecution. In the sale deed of the informant Janki Bhagat, Exts. 3 and 3/1 and the compromise petition dated 4-4-1958 filed before the High Court in F.A. No. 75/51, name of one Jugeshwar Kalwar is mentioned, in the northern boundary of plot No. 1331. In sale deed of Brahma Singh, Ext. G, name of Jugeshwar Kalwar, is also mentioned in the northern boundary of plot No. 1331. All these documents clearly establish that land to the north of plot No. 1331 belonged to Jugeshwar Kalwar and not to the deceased Sheo Pujan Bhagat.
14. The evidence of Sheojee Bhagat, P. W. 2 that he was uprooting the Sarso plants along with his brother is not consistent with the prosecution case. In FIR it is, simply mentioned that Sheojee Bhagat and Sheo Pujan Bhagat and one Surajdeo Bhagat were present in their respective fields.
15. The evidence of P.W. 2 Sheojee Bhagat reveals that informant Janki Bhagat, P.W. 9 had given him 3 dhoors of land for opening of a shop. Surajdeo Bhagat who is said to be present near the P.O. land at the time of alleged occurrence has not been examined by the prosecution nor any explanation has been offered for his non-examination. The Investigating Officer, P.W. 12 did not find any objective evidence about the uprooting of Sarso plants. Any bundle of uprooted Sarso plants was not found there. The testimony of P.W. 2 Sheojee Bhagat that he was uprooting Sarso plants near the P.O. along with the deceased Sheo Pujan Bhagat at the time of occurrence is thus not reliable.
16. As regards, the evidence of P.W. 1 Brij Bihari Prasad, P.W. 2 Sheojee Bhagat, P.W. 3 Rama Pandey, P.W. 4 Ganesh Dhobi and P.W. 5 Raghunath are concerned, they are interested and partisan witnesses. They are members of a group. P.W. 1 Brij Bihari Prasad has admitted in his evidence that he and Raghunath, P.W. 5 are members of C.P.I. The Investigating officer, D. P. Singh, P.W. 12 in para 21 of his evidence has stated that he knew P. Ws. Brij Bihari Prasad, Rama Pandey, Ganesh Dhobi and Raghunath Rai from before. They are members of C.P.I. The evidence of P.W. 12 is also corroborated from Ext. J. certified copy of deposition of P.W. 1 Brij Bihari Prasad in Trial No. 778/83 wherein while deposing against the appellant Satya Narain Bhagat, he has stated that he is active member of the C.P.I. He is professional witness and Pairvikar of his party comrades. The certified copy of deposition of P.W. 1 Ext. J/H in T.S. No. 173/74 reveals that P.W. 1 had also deposed against the appellant Satya Narain Bhagat. Ext. J/B is another certified copy of deposition of P.W. 1. This would show that P.W. 1 had also deposed against the appellant Satya Narain Bhagat in case No. 456/74. He has admitted therein that P.W. 3 Rama Pandey and P.W. 5 Raghunath are his associates and party members. Certified copy of deposition of P.W. 4 Ganesh Dhobi in T.R. No. 1477/76, Ext. J/A indicates that he had earlier also deposed, against the appellant Satya Narain Bhagat in a case of theft instituted against him by the informant Janki Bhagat. Ext. J/G certified copy of deposition of P.W. 3 Rama Pandey shows that he also had earlier deposed against the appellant in T.S. No. 173/83. The certified copy of the deposition of the informant, Janki Bhagat, P.W. 9 in Trial No. 1477/76, Ext. J/E would show that he had earlier also instituted a case of theft of wheat against the appellant Satya Narain Bhagat from plot No. 1331. He has, however, admitted in his evidence, in the present case that appellant Satya Narain Bhagat was acquitted in that case by the Appellate court.
17. The Supreme Court in the case of Bir Singh v. State of U.P. , has held that where all the eye witnesses examined by the prosecution had serious animus against the accused and were interested in implicating the accused and neither independent witness was examined nor any reasonable explanation was given by the prosecution, the court would be justified in drawing adverse inference against the prosecution. In this case it is obvious from the certified copy of the depositions of P.Ws. in the previous cases that the P.Ws. 1, 3, 4 and 5 have formed an unholy alliance against the appellants. They are interested and partisan witnesses. The evidence of these P.Ws. are not corroborated by any independent and reliable witness. They are also accused in a case earlier instituted by the appellant Jai Prakash Bhagat. The credibility of these P.Ws. cannot be relied upon.
18. So far the occurrence is concerned, there is no dispute, rather it is admitted, as case and counter case has been instituted by both the parties relating to the same occurrence. The dispute is, however, with regard to the manner and place of occurrence.
19. The case of the prosecution, is that the dispute originated on account of forcibly cutting Rahar crop from plot No. 1331 but the murder took place in the field of Sheo Pujan Bhagat situated on the northern boundary of plot No. 1331. It is alleged that the deceased fell down in the wheat field after sustaining the injuries, then he was brought near the Sheesham tree. The P.Ws. have stated that copious blood had oozed out from his injuries in the wheat field and near the Sheesham tree. But there is no seizure of blood stained earth either from the wheat field or near the Sheesham tree by the Investigating officer, P.W. 12 nor there is any explanation for that. In the case of Laxmi Singh v. State of Bihar it has been observed that in almost all criminal cases, the blood stained earth found from the place of occurrence is invariably sent to the Chemical examiner and his report along with the earth is produced in the court. If this procedure is departed from for reasons best known to the prosecution it indicates that the defence version may be true. In the present case the omission on the part of the I.O. P.W. 12 to seize blood stained earth from the place of occurrence casts a serious doubt on the place of occurrence of this case.
20. It was contended by Shri Prakash Narayan Pandey, learned Sr. Counsel for the appellants that the prosecution has not come with the true version of the nature and origin of occurrence. The prosecution has suppressed the injury sustained by the accused. There is no mention of any injury of the accused person in the FIR (Ext. 2). The P.Ws. have also denied the presence of injuries on the accused persons. The Investigating officer, P.W. 12 D. P. Singh on the other hand has stated that on 18-3-1975 on the receipt of the O.D. slip from the Mairwa State Dispensary he went there and found injuries on the accused persons. He recorded the fardbeyan Ex. 1 of the injured Jai Prakash Bhagat, appellant and sent the injured to Mairwa Hospital for their treatment. D.W. 1 Dr. M. N. Singh has deposed that on 18-3-1975, while he was posted as Medical officer at Mairwa State Dispensary he received three requisitions from Mairwa P.S. and examined Sugia Devi at 3.55 p.m. on the same date and found the following injuries :--
(i) Lacerated wound 1/2" x 1/6" x 1/6" over upper part of sculp
(ii) Punctured wound 1/2" x 1/4" x 3/4" over Supra external region of front of neck with air coming and with very experation and crepitons all over chest and face and both eye leads with eyes swollen.
The injury No. 1 was simple and caused by hard and blunt substance such as Lathi. Injury No. 2 was grievious in nature caused by sharp pointed weapon such as Bhala. This injury was dangerous to life. The age of injury was about six hours.
21. On the same date at about 3-50 p.m. he examined appellant Satya Narain Bhagat and found the following injuries :
(i) Punctured wound 2/3" x 1/6" x 3/4" over upper part of front of middle portion of chest.
(ii) Swelling 3" x 2" over back of medial half of left hand.
(iii) Swelling 5" x 3" over back of left fore arm.
(iv) Swelling 3" x 2" over back of right upper arm.
The injuries were simple in nature. The injury No. 1 was caused by sharp pointed weapon such as Bhala and rest was caused by blunt substance. The age of injuries was within six hours.
22. On the same date at about 3-45 p.m. he examined appellant Jai Prakash Bhagat and found following injuries :--
(i) Incised wound 2 2/1" x 1/6" x 1/4" over upper part of right side of sculp.
(ii) Punctured wound 1/2" x 1/6" x 1/4" over lateral aspect of upper part of left forearm.
(iii) Punctured wound 1/2" x 1/6" x 1/2" over lateral aspect Of upper part of left thigh.
(iv) Punctured wound 1/3" x 1/6" x 1/3" over back of upper part of left fore arm.
(v) Lacerated wound 1/2" x 1/6" x 1/6" over antromedial aspect of tip of right middle finger.
All injuries were simple in nature. Injuries 1 to 4 were caused by sharp pointed weapon such as Bhala. Injury No. 5 was caused by hard and blunt substance such as lathi. The age of injuries was within six hours. He proved the injuries slip marked as Ext. B to B/2.
23. D.W. 3 Dr. S. B. Singh has deposed that on 18-3-1975 he was posted at Sadar Hospital, Siwan as a Civil Assistant Surgeon. On that date he admitted injured namely Mostt. Sugia and Jai Prakash Bhagat as an indoor patient in the Hospital on being referred to by Medical Officer, Mairwa. The condition of Sugia was critical. The injured were treated by Dr. Laxmi Chand Prasad. He proved his writings on the Bed head ticket and writings of Dr. Lakhichand Prasad (Ext. D and D/A).
24. The prosecution, has not offered any explanation how and in what circumstances injuries were inflicted on the person of the accused. Whereas the defence is that the prosecution party members came at the P.O. variously armed with weapon and started cutting the Rahar crop. When appellant Jai Prakash Bhagat protested, the prosecution party members attacked and assaulted the appellants and Mostt. Sugia and that led to a clash between them. In the case of Laxmi Singh (Supra) the Supreme Court in para 11 has held that, the omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance when the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with the prosecution case. There may be cases where the non examination of the injuries by the prosecution may not affect the prosecution case. This principle would apply to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of omission on the part of the prosecution to explain the injuries.
25. In the case of Mohan Rai v. State of Bihar it has been observed that non-explanation of injury sustained by the accused at about the time of occurrence or in the case of altercation is a very important circumstance from which the court can draw the following inferences :--
(1) that the prosecution had suppressed the genesis and the origin of the occurrence and has not presented the true version.
(2) that the witnesses who had denied the presence of injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable.
(3) that in case there is a defence version which explains the injury on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
26. Again, the Supreme Court in the case of Puran Singh v. State of Punjab has observed that, if the prosecution did not come out with a true version of the nature and origin of the occurrence. They cannot blame the court if the entire version presented by them is rejected. It was further observed, in para 19 that in the instant case, either the accused were fully justified in causing the death of the deceased and were protected by the right of private defence or that if the prosecution does not explain the injuries on the person of the deceased the entire prosecution is doubtful and the genesis of occurrence is shrouded in deep mystery which is sufficient to demolish the entire prosecution case.
27. Shri Lala Kailash Bihari, learned State counsel has, however, contended that it is not obligatory on the prosecution to explain the injuries of the accused suffered in the same transaction. Reliance was also placed in the case of Hare Krishna Singh v. State of Bihar . In this case the Supreme Court has observed that (at page 930; (of Cri LJ)) :--
We are of the view that the question as to the obligation of the prosecution to explain the injuries sustained by the accused in the same transaction may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. The burden of proving the guilt of the accused is undoubtedly on the prosecution. The accused is not bound to say anything in defence. The prosecution has to prove the guilt of the accused beyond all reasonable doubts. If the witnesses examined on behalf of the prosecution are believed by the court in proof of the guilt beyond all reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise.
28. Here in the present case, the prosecution has not come with a definite case. The prosecution case is that the dispute originated in the Rahar field whereas the occurrence took place in the wheat field of Sheo Pujan Bhagat. The Investigating officer, P.W. 12 did not find any objective evidence as to the occurrence in the wheat field. The P.Ws. examined on the material points are inimically disposed to the appellants. They are accused in earlier case instituted by appellant Jai Prakash Bhagat against the same occurrence. Their evidence is not supported by any reliable and independent witness. The prosecution case is, therefore, fit to be rejected.
29. As regards, the conviction of the appellant Jai Prakash Bhagat Under Section 302 of the Indian Penal Code is concerned, Shri Lala Kailash Bihari Prasad contended that the appellant Jai Prakash Bhagat can be convicted, with the aid of Section 34 of the Indian Penal Code. Reliance was placed in the case of Laxman Singh V. State . In this case, it has been held that where there is charge Under Sections 302/149, IPC and the charge Under Section 149 disappears because of the acquittal of some of the accused, a conviction Under Section 302 of the IPC with Section 34 of the IPC is good enough, though there is no separate charge Under Sections 302/34 of the IPC. provided on the facts of the case the accused could have been charged Under Section 302/34 of the IPC.
30. In this case Jai Prakash Bhagat was charged Under Sections 302/149 of the IPC. The charge Under Section 149 of the IPC failed because of the acquittal of the other accused. He has, however, been convicted Under Section 302 of the IPC simpliciter. The conviction of appellant Jai Prakash Bhagat simpliciter Under Section 302 of the IPC is not legal. His conviction with the aid of Section 34 of the IPC also cannot be maintained for want of any reliable evidence.
31. As regards, the self defence is concerned, the Supreme Court, in the case of Vijoy Singh v. State of UP. has held that the general burden of establishing the guilt of accused is always on the prosecution and it never shifts. Even in respect of the cases covered Under Section 105 of the Evidence Act, the prosecution is not absolved of its duty of discharging the burden. The accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and circumstances obtaining in the case. He may adduce the evidence in support of his plea indirectly or rely on the prosecution case itself or he can indirectly introduce such circumstances by way of cross-examination and also rely on probabilities and the other circumstances. Then the initial presumption against the accused regarding the non-existence of the circumstances in favour of his plea gets displaced if a reasonable doubt arises the benefit of it should go to the accused. If there are absolutely no circumstances at all in favour of the. existence of such an exception then the rest of the enquiry does not arise in spite of a mere plea being raised. But if the accused succeeds in creating a reasonable doubt or shows preponderance of probability in favour of his plea the obligation on his part Under Section 105 gets discharged and he would be entitled to an acquittal. In this case the witnesses examined by the prosecution on the material points have serious animus against the appellants as is evident from the discussion made in the preceding paragraphs. No independent and reliable witness has been examined by the prosecution in support of its case. The prosecution has thus failed to prove its case beyond all reasonable doubt. The preponderance of the probability is also in favour of defence. The appellants are, therefore, entitled to be acquitted.
32. In the present case the prosecution has not been able to establish that the occurrence took place in the field of Sheo Pujan Bhagat. The prosecution has also not been able to prove the possession of the informant Janki Bhagat, P.W.9 on plot No. 1331. The prosecution has not offered any explanation as to how and in what circumstances injuries were inflicted on the accused in the same transaction. The witnesses examined by the prosecution on the material points are inimical to the accused. No independent and reliable witness has come to support the prosecution case. All these circumstances, clearly indicate that the prosecution has not come out with the true version of the origin of the prosecution case. The preponderance of the probability is in favour of the defence. The burden of proof of self defence is thus discharged and the appellants are entitled to be acquitted.
33. For the reasons mentioned aforesaid, the conviction and sentence of the appellants cannot be sustained. Accordingly, their conviction is set aside and in the result this appeal is allowed. The appellants are exhonerated from the liability of their bail bonds.
Bimalendu Narain Sinha, J.
34. I agree.