Calcutta High Court
Budheswar Mahato And Ors. vs The State Of West Bengal And Ors. on 29 January, 1991
Equivalent citations: (1991)1CALLT228(HC)
Author: Monoj Kumar Mukherjee
Bench: Monoj Kumar Mukherjee
JUDGMENT Monoj Kumar Mukherjee, J.
1. The eleven appellants were placed on trial before the learned Assistant Sessions Judge, Purulia to answer common charges under Sections 148 and 447 of the Indian Penal Code. Against ten of them (except Budheswar), a separate charge under Section 149 read with Section 304 (Part-I) of the Indian Penal Code was framed while against Budheswar a charge under Section 304 (Part-I) of the Indian Penal Code was framed. Besides, a charge under Section 325 of the Indian Penal Code was framed against the appellant, Sarat Mahato. On conclusion of the trial, the learned Judge recorded an order of conviction and sentence against all the appellants in respect of the charges respectively framed against them and aggrieved thereby, they filed the instant appeal.
2. Bereft of details, the case of the prosecution is as under. At all material times, the appellants and the deceased Panchami and her family members were residents of village Sindurpur under the police station of Man- bazar in the district of Purulia. On August 10, 1985, the appellants went to cultivate a land known as "Rakhergora" in their village, which was in possession of Atul Mahato, husband of Panchami, and his brother. When they were about to cultivate, Atul Mahato, the deceased Panchami and other members of their family went there and asked them to leave. The appellants refused to accede to the demand and beat them with tangi, tabla and lathi, which they were carrying. As a result, Atul, Panchami, their son Balaram and Atul's younger brother, Panchanan sustained injuries. Panchami died the same night in the Hospital where she was admitted. Immediately after the occurrence, Behula, wife of Balaram, went to the police station and lodged an information about the incident. On that information, a case was registered against the appellants, which ended in a charge-sheet and subsequent commitment to the Court of Sessions.
3. The appellants pleaded not guilty to the charges levelled against them and contended that the land in question, which they went to cultivate belonged to them and was in their possession. They further contended that it was the complainant's party, which assaulted some of the members of the family.
4. In support of its case, prosecution examined 11 witnesses of whom Behula Mahatani (P.W. 1), Brihaspati Mahato (P.W. 2), Balaram Mahato (P.W. 3), Panchanan Mahato (P.W. 5) and Atul Mahato (P.W. 6) figured as eye-witnessess ; but no witness was examined on behalf of the defence. Before we proceed to consider and discuss the evidence of the presecution, we may point out that the conviction of the appellants under Section 148 of the Indian Penal Code and of the ten appellants (except Budheswar) under Section 149/304 of the Indian Penal Code must fail simply on the ground that charges framed against them in respect of the above two offences are defective. It is rather unfortunate that the learned trial Judge did not care to incorporate in the charges what was/were the common objects for which they were being tried for the above offences. It is trite law that an assembly of five or more persons is unlawful only when those persons share any of the common objects mentioned in Section 141 of the Indian Penal Code. In the instant case, we do not find reference to any of the common objects enumerated in Section 141 of the Indian Penal Code in the two charges. In fact, in the charge under Section 148 of the Indian Penal Code, it is stated that "in prosecution of the common object of the assembly viz. in order to commit the offence of rioting." The learned Judge will be well-advised to note that rioting is not a common object but an offence as defined under Section 146 and punishable under Section 147 or 148 of the Indian Penal Code, as the case may be.
5. It was, however, contended on behalf of the respondent-State that such defects in the charges would not vitiate the trial in absence of anything to indicate that the appellants were prejudiced thereby. We are unable to accept the above contention having regard to the fact that in the instant case the prosecution might have charged the appellants with one or more of the common objects enumerated in Section 141 of the Indian Penal Code and that was made evidently clear by framing of separate charges under sections , 447, 325 and 304 (Part-I) of the Indian Penal Code. It is not known therefore what common object or objects the prosecution intended to attribute to the accused persons while framing the charge under Section 148 against them. This aspect of the matter assumes further importance as the charge under Section 447 of the Indian Penal Code must fail for reasons to be recorded hereinafter. If, therefore, the prosecution intended to arraign the appellants for sharing the common object of criminal trespass, the charges under Section 148 of the Indian Penal Code would have failed. It must be held therefore, that the appellants have been prejudiced due to improper framing of charges.
6. Coming now to the charge under Section 447 of the Indian Penal Code, we find that the prosecution has itself admitted that the land in question was the joint property of Atul and his family members and some of the appellants. P.W. 3 has categorically stated in his examination-in-Chief itself that there was some dispute regarding the land in question for which an Amin was engaged to demarcate the same. His further evidence is that after demarcation, it was found that the appellants were to get 0.05 acres out of the land but they did not agree to surrender the said land to the appellants. While on this point, we may also refer to the evidence of Pranab Banerjee (P.W. 4), a member of the Panchayat Samity, who tried to effect a compromise in the dispute and for that purpose engaged an Amin. He stated that it was ultimately found that Atul was possessing some excess land for which a decision was taken that he should relinquish his right in respect of the excess land in favour of other co-sharers, namely, the appellants -and that both the parties agreed to the same. His further evidence is that it was decided that both the parties would cultivate the land as per allotment made. It is of course true that P.W. 4 was declared hostile by the prosecution but then as we find his evidence stands corroborated by that of P.W. 2, we find no reason to disbelieve him more particularly when nothing has been elicited in cross-examination to indicate that he was inimically disposed towards the prosecution. If, in the context of the above facts, the accused persons had gone to the land, it cannot be said that they had committed criminal trespass in respect thereof.
7. For the foregoing discussion, the conviction of the appellants in respect of the charges under Section 148 and 447 of the Indian Penal Code cannot be sustained. As the conviction under Section 148 fails, the convic- tion under Section 149 read with Section 304 (Part-I) of the Indian Penal Code of the appellants (except Budheswar) cannot also be sustained. We, therefore, record an order of acquittal in respect of the above charges.
8. That brings us to the question whether the orders of conviction and sentence passed against the appellant, Budheswar under Section 304 (PartI) of the Indian Penal Code for causing the death of Panchami and against appellant, Sarat under Section 325 of the Indian Penal Code for causing grievous hurt to Atul Mahato can be sustained or not. It is in evidence that when the appellants were cultivating the land, Panchami along with other family members resisted the appellants. In view of our earlier finding that the appellants had a right to go to land and cultivate the same, it must be said that they had a right of private defence. But then in our considered view, the appellant, Budheswar exceeded his right of private defence, as he gave a severe blow on the head of Panchami with a table which resulted in her ultimate death, when she was about to unyoke the plough. In that view of the matter, we alter his conviction from one Part-I to Part-II of Section 304 Part-II of the Indian Penal Code. For the self-same reason, we allter the conviction of Sarat to one under Section 323 of the Indian Penal Code.
9. That brings us to the question of sentence. For his conviction under Section 304 (Part-I) of the Indian Penal Code, the appellant, Budheswar has been sentenced to suffer rigorous imprisonment for 10 years and to pay a fine of Rs. 2,000/-. Since we have altered the conviction of the appel lant to one under Section 304 (Part-II) of the Indian Penal Code and since we find that he is in jail for the last 2i years, we reduce the sentence of im prisonment to the period already undergone and of fine to Rs. 1,000/-. In default of payment of fine, he shall suffer rigorous imprisonment for three months. From the record, we find that during investigation, the other ap pellant, Sarat was in custody for more than two months. While altering his conviction under Section 323 of the Indian Penal Code, we reduce his sen tence to the period already undergone. The entire fine, if realised, should be paid to Atul Mahato (P.W. 6), the husband of the deseased.
10. The appeal is thus disposed of. Those appellants, who are in bail, are discharged from their respective bailbonds.
Haridas Das, J.
11. I agree