Calcutta High Court (Appellete Side)
Rupchand Mahato & Ors vs The State Of West Bengal on 22 August, 2008
Author: Girish Chandra Gupta
Bench: Girish Chandra Gupta
IN THE HIGH COURT AT CALCUTTA
Criminal Appellate Jurisdiction
Present:
The Hon'ble Justice Girish Chandra Gupta
And
The Hon'ble Justice Partha Sakha Dutta
C. R. A. 84 of 1996
Rupchand Mahato & Ors.
versus
The State of West Bengal
For Appellant: Mr. Dipak Kumar Sengupta
Mr. H. Dey
Mr. N. Dey
Mr. S. Dey
For Respondent: Mr. Y.J. Dastoor
Mrs. Rupa Bandyopadhyay Heard on : 29th July, 2008 Judgment on : 22nd August 2008 GIRISH CHANDRA GUPTA:
This appeal is directed against a judgment dated 19th March 1996 passed by the learned Sessions Judge, Purulia, in Sessions Trial No.2 of 1993 arising out of Sessions Case No.74 of 1989 convicting the appellants Rupchand Mahato, Gauranga Mahato and Jitu Mahato and acquitting Shrimati Lalita Mahato for the charges punishable under sections 302 read with 34 IPC. The accused Rupchand and Gangadhar were also convicted under section 307 read with section 34 IPC. By an order dated 22nd March 1996 the learned Sessions Judge sentenced all the three accused to life imprisonment for life as also to pay a fine of Rs.1000/- each under section 302 read with section 34 IPC, in default to undergo further rigorous imprisonment for a period of three months. The convicts Gangadhar and Rupchand were also sentenced to imprisonment for life for the offence punishable under section 307 read with section 34 IPC as also to pay a fine of Rs.1000/- each, in default to undergo further rigorous imprisonment for three months. Both the sentences were directed to run concurrently.
Briefly stated the facts and circumstances of the case are as follows:-
On 27 August 1987 in the morning at about 7'O clock Kista Rajwar and his son Bhiguram Rajwar went to their field. They excavated a nala (outlet) to bail out the excess water. When the excavation of the nala was almost complete and they were preparing to go back the accused Jitu, his wife Lalita and their sons Rupchand and Gauranga, three of them armed with tangee (sharp cutting weapon), appeared on the scene and protested against the excavation of the outlet. After an initial altercation Jitu, Rupchand and Gangaram inflicted fatal injuries on the head of Kisto, as a result thereof he died on the spot. The Autopsy Surgeon found the following injuries on the body of the deceased Kisto and deposed that anyone of the aforesaid injuries was in the ordinary course of nature sufficient to cause death.
"1. One sharp cutting injury, 3"X2"X brain deep over the volt of the skull. Membrane and brain matter injured.
2. One sharp cut injury, 6"X2"X brain deep, over left tempero parietal region membrane and brain matter injured.
3. One sharp cut injury obliquely placed over right side of anterior aspect of upper part of neck, 3"X2"X bone deep. Carotid sheath with its contents cut, trachea cut and 3rd cervical vertebra cut."
Bhriguram, son of Kisto, was also severely wounded. The villagers shifted him to Kotshila Public Health Center where he was examined by Dr. Subhendu Roy who found as many as 8 injuries which are as follows:-
"1. One lacerated injury, 5"X3", one inch above left ankle-skin subcutaneous fact fassa muscles and both tibia and fibula are severed causing compound communuted fracture. Magins are sharp. Fresh bleeding present from lateral side upto skin over the medial size.
2. One lacerated injury, 1"X ½" X ¼th, one and half inches above mallatolar process of right tibia. Only skin is cut.
3. Lacerated injury, 1½" X ½" X ¼", two inches below head of right fibula. Skin and subcutaneous tissue cut.
4. Lacerated injury, 1" X ½" X ½" over left phenar eminance, skin, subcutaneous-
tissues and muscles are cut.
5. Lacerated injury 1½" X ½" X ¼", one inch above left elbow over the lateral aspect of left arm, skin, subcutaneous tissue are cut.
6. Lacerated injury of 2" X 1" X ½" over middle of right shoulder, skin, subcutaneous tissues and muscles are cut.
7. Lacerated injury, 1" X ¼" X ¼", half inch above right wrist, only skin over extensar aspect of right forearm cut.
8. Lacerated injury, 1½" X ½" X ½" one inch below of inferior angle of right scapula. Skin and subcutaneous tissues are cut."
According to Dr. Roy all the injuries were inflicted by sharp cutting weapon like tangee and were grievous in nature. Bhriguram was immediately sent to Purulia SD Hospital where he was examined by Dr. Dilip Sen (P.W.7). Opinion of the P.W.7 as regards the injuries inflicted upon Bhriguram is as follows:-
"From these injuries I have the impression that those were the result of some violent attack on the person of the victim. Such injuries might be caused by sharp cutting weapons like Tabla, tangies etc."
It appears from the evidence of the P.W.7 that after the victim Bhriguram was treated in the Purulia Sadar Hospital for a week he was referred to Bankura Medical College for better treatment.
The accused Lalita also received a cut injury above her left eyebrow which according to P.W.6, Dr. Roy, was a simple injury. The accused Rupchand received a lacerated injury above the right-elbow over the anterior aspect which according to Dr. Roy (P.W.6) was grievous in nature. Rupchand was also referred to Purulia Sadar Hospital. He was treated there as an indoor patient and was discharged on 18th September 1987.
P.W.10, Sub-Inspector Subhajit Chowdhury got a telephonic message from the Station Master, Jhalda Railway Station, intimating a clash and nothing more. Based on that information he went to the P.O.; saw the dead body, cordoned off the place of occurrence; headed to the Kotshila Public Heath Center and interrogated Bhriguram Rajwar who had already been hospitalized. He recorded the statement and on that basis a formal FIR was drawn and Jhalda P.S. Case No.4 dated 27th August 1987 was started under sections 302,307, 326 read with section 34 IPC. P.W.10 thereafter went to the Purulia Sadar Hospital and recorded the statement of Rupchand and on that basis drew up a formal FIR and started Jhalda P.S. Case No. 5 dated 27th August 1987 under section 326 read with section 34 IPC. The case and the counter-case were both tried. We are told that the counter-case arising out of Jhalda P.S. Case No.5 dated 27th August 1987 resulted in acquittal and the case arising out of the Jhalda P.S. Case No.4 dt. 27th August 1987 culminated in conviction as indicted hereinabove.
Mr. Sengupta, learned Senior Advocate, assisted by Mr. Dey, learned Senior Advocate, appearing for the appellants advanced the following submissions:-
a) Place of occurrence has not been identified by the prosecution. This submission, in our view, is not factually correct. It would appear from the evidence of the P.W.2 Hemola Rajwar "that the incident took place on the danga land which was by the side of our khet (paddy field)". From the sketch map which is Ext.3, it appears that the place of occurrence is plot no. 849 which is a barren land. Danga land deposed to by the P.W.2, in fact, means barren land.
b) Second submission advanced by Mr. Sengupta was that the nala/outlet was excavated in the land belonging to the accused persons. He in support of his submission relied on the evidence of the P.W.4 who deposed "I know that the paddy field was in possession of Jitu Mahato". This submission, in our view, is also factually incorrect. The sketch map, Ext.3, the correctness whereof was not challenged, goes to show that the nala was excavated in the paddy field belonging to the deceased Kista. The defence may be interested in claiming title over the field possessed by the deceased. But that would not alter the fact that the nala was excavated in the field possessed by the deceased which had already been sown and plants were there for the safety of which the nala was excavated in order to bail out the excess water.
c) The third submission advanced by Mr. Sengupta was that Kailash Rajwar had telephonically given the message as regards the clash as would appear from the evidence of the P.W.10 but he was thereafter not contacted and therefore there is no knowing as to the contents of that information which according to the P.W.10 was recorded into a GD Entry but that GD Entry was not produced.
The contents of the GD Entry obviously were based on the basis of the information. What the information was we already know from the evidence of the P.W.10. It was a message as regards a clash. It is this message on the basis of which the P.W.10, Sub-Inspector of Police, had set out from the police station to work out the information. P.W.10 was not called upon to produce the GD Entry. We therefore are not prepared to attach any importance to the absence of this GD Entry.
d) The fourth submission advanced by Mr. Sengupta was that the accused persons in exercise of their right of private defence inflicted the injuries and for that they were not liable. He proceeded on the basis that the nala had been excavated in the paddy field belonging to the accused persons which we already have indicated is factually incorrect.
Mr. Sengupta relied on a judgment in the case of Ananta Deb Singha Mahapatra & Ors. Vs. State of West Bengal reported in AIR 2007 SC 2524 for the proposition that it is not necessary for the accused to take the plea expressly that he had acted in self-defence. He relied on paragraph 10 of the judgment wherein the following view had been expressed:-
"Section 96, IPC provides that nothing is an offence which is done in the exercise of the right of private defence. The section does not define the expression 'right of private defence'. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances. It is not necessary for the accused to plead in so many words that he acted in self-defence. If the circumstances show that the right of private defence was legitimately exercised it is open to the Court to consider such a plea. In a given case the Court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under section 105 of the Indian Evidence Act, 1872, the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not required to call evidence; he can establish his plea by reference to circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence, and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self- defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. (see Munshi Ram and Ors. v. Delhi Administration, AIR 1968 SC 702; State of Gujarat v. Bai Fatima, AIR 1975 SC 1478; State of U.P. vs. Mohd. Musheer Khan, AIR 1977 SC 2226 and Mohinder Pal Jolly v. State of Punjab, AIR 1979 SC 577) Sections 100 to 101 define the extent of the right of private defence of body. If a person has a right of private defence of body under section 97, that right extends under section 100 to causing death if there is reasonable apprehension that death or grievous hurt would be the consequence of the assault. The oft quoted observation of this Court in Salim Zia v. State of U.P. ( AIR 1979 Sc 391) turns as follows:-
" It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that, while the prosecution is required to prove its case beyond reaosnable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis for that plea in the cross examination of the prosecution witnesses or by adducing defence evidence."
Mr. Sengupta may be correct that the plea of self-defence need not be taken expressly provided the "circumstances show that the right of private defence was legitimately exercised". The accused is also bound to discharge "the burden of showing preponderance of probability in view of that plea on the basis of materials on record". The circumstances in this case go to show that the accused was seeking to enforce their supposed right in the concerned land which was in the possession of the deceased and they were really the aggressors.
P.W.1 Bhriguram in the present case was, during his cross-examination, suggested as follows:-
"Not a fact that on that day I along with my father was armed with tangi, spade and Gainti and came to the field of the accused persons. Not a fact that we were damaging the standing paddy crops on the land of the accused persons by cutting a nala, or that the accused persons then protested or that my father Kista at that time assaulted lalita with Gainti or that as a result, she fell down or that at that time Rupchand went to save lalita and then I hit him with tangi.
Not a fact that I and my father attempted at assaulting them further or that at that time they saved themselves.
Not a fact that myself and my father are the aggressors in this case."
We already have indicated while answering the second submission of Mr. Sengupta that the nala was excavated in the paddy field belonging to the victim and not in the paddy field belonging to the accused persons which we need not reiterate. Therefore the question of the victims damaging the paddy crops on the land of the accused persons by digging a nala could not have arisen. From the sketch map being Ext.3 it would appear that the paddy field of the accused persons and that of the victims are contiguously located. The accused Jitu Mahato during his examination under section 313 CrPC in answer to question no.2 has admitted as follows:-
"Yes, my land was situated at a place higher in level than the land of Krista or that is still so."
It is, therefore, incorrect to allege that the standing crop of the accused persons was damaged or sought to be damaged by excavating the nala. Once it is shown that there was no attempt to damage the growing paddy of the accused, the case suggested to the P.W.1 loses all its force. There is no other basis indicated by Mr. Sengupta which may be pressed into service to arrive at a finding that the landed property or the crop of the accused persons was endangered by the victim and that to save the same the accused persons resorted to assault discussed above.
From the trend of cross-examination it appears that there is some dispute between the parties as regards the title and possession of some of the plots of the land. P.W.1 during his cross-examination admitted as follows:-
"I do not know if the accused Jitu purchase any land from the Chodhuries. I can not say if my father sold 98 decimals of land out of plot numbers 1410 and 848 to Jitu and his sons. It is not a fact that my father filed any application before the J.L.R.O. for taking return of any land which he had sold away previously to others. Not a fact that my father made any application before the Panchayat for getting return of any land which he had sold to the accused persons as alleged.
It is a fact that I have filed case under section 144 Cr.P.C. against the accused persons over the plot nos.849 and 858 of mouza Newahatu. That proceeding has been converted into one under section 145 CrPC. And is still pending. I cannot remember if prior to filing this case I filed another case under section 144 CrPC over the same lands."
We are inclined to think that the accused persons in order to enforce their supposed right with respect to the paddy filed in which the nala was excavated or was being excavated appeared at the scene armed with lethal weapons and attacked the victims when they found that the nala had already been excavated. P.W.1 in his cross- examination had admitted "On that day we excavated that nala and the length of such excavation would be about 10 cubits."
We are unable to accept the submission of Mr. Sengupta that the field in which the nala was excavated was in the possession of the accused persons. If this filed were in the possession of the accused persons and if they had sown crops in that field it is unlikely that the victims would be concerned to bail out the excess water. The fact that the victims were concerned to save the crop from excess water and they excavated the nala goes to show that they were in possession of the field and they had sown the crop may be to the displeasure of the accused persons. Therefore the conclusion is that the accused persons were the aggressors. They found an excuse to break in upon the victims because the nala had been excavated on a piece of land which the accused persons supposed to be theirs which was, in fact, in the possession of the victims. Therefore the right of private defence was simply not there.
Mr. Sengupta realizing his difficulty submitted that in a case of murder the prosecution is obliged to explain the injury sustained by the accused. In support of his submission he relied on a Division Bench Judgment of the Bombay High Court in the case of DI Sinha vs. State of Maharashtra reported in 2002 Cri. LJ 1026 wherein the DB took the view that the accused persons were possibly assaulted first and in exercise of private defence they may have retaliated. The DB, as a matter of fact, relied on a judgment of the Apex Court in the case of Laxmi Singh & Ors. Vs. State of Bihar reported in AIR 1976 SC 2263 wherein the following view was taken:-
"It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
1. that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version;
2. that the witnesses who have denied the presence of the injuries on the persons 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 injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. The omission on the part of the prosecution, to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one."
Mr. Sengupta also relied on a judgment in the case of Balwant Singh reported in 2006(1) SC (Cri) 108 for the same proposition.
It is not a fact that the injury suffered by the Rupchand and Lalita were not explained altogether. P.W.1 deposed "this much I know that Rupchand sustained some injuries during the occurrence of that day". He also admitted that a criminal case had been filed against him by the accused Rupchand and that he was on bail. P.W.2, widow of the deceased Kisto, who is also an eyewitness deposed that the injuries suffered by Lalita was a self-inflicted injury. Non-explanation of injury on the person of the accused is not always fatal. Reference in this regard may be made to judgment in the case of State of Gujarat vs. BaiFathima reported in AIR 1975 SC 1478.
We already have indicated our reasons why the plea of self-defence advanced on behalf of the appellants cannot be accepted. We already have held that the accused were the aggressors. They reached the place of occurrence armed with sharp cutting weapons like tangee. We are supported in our view by the fact that the P.W.6 Dr. Roy, attached to Kotshila Public Health Center, deposed that the injuries found on the person of the victim Bhriguram appear to have been inflicted by sharp cutting weapon like tangee whereas the injury appearing on the person of Lalita and Rupchand appear to have been inflicted by sharp cutting weapon. Injury suffered by Rupchand, according to P.W.7 Dr. Dilip Sen attached to Purulia SD Hospital was simple in nature. We are inclined to think that the victims who had gone to the field for the purpose of excavating a nala had only spades with them. When they were attacked by the accused persons they may have tried to save themselves with the spades they had in their possession and that explains the reason why the injuries inflicted upon the P.W.1 and his father Kista who died on the spot and the injuries found on the body of the victim Bhriguram were grievous in nature. These injuries mostly on the limbs of the victim Bhriguram go to show that they were suffered during defence. We are thus not impressed by the submission of Mr. Sengupta.
The fifth submission made by Mr. Sengupta was that the examination under section 313 CrPC was concluded on 1st October 993 whereas the judgment was delivered on 19th March 1996. He submitted that the object of the examination under section 313 was diluted by this inordinate delay in the delivery of judgment which, as a matter of fact, was delivered not by the learned Judge who had examined the accused persons under section 313 but by his successors. This submission is equally without any force. The accused persons during their examination under section 313 stated that they wanted to adduce evidence. The records reveal that innumerable adjournments were taken by the defence for the purpose of bringing their witnesses. On one occasion they prayed for issuing summons. Summons were issued, the witness appeared but he was not ultimately examined. Some documents were tendered without objection. Mr. Sengupta did not even touch any of those documents tendered on behalf of the defence. The learned Trial Judge, we have satisfied ourselves, delivered the judgment soon after conclusion of the argument.
Lastly it was submitted by Mr. Sengupta that both the parties in this case suffered injuries. There was, as a matter of fact, a free fight according to him, which resulted in the unfortunate death of Kista and injury upon the P.W.1. Even this submission, in our view, is not correct. No injury was suffered by the accused Jitu and his son Gangadhar. It is also not correct to say that there was a free fight. As a matter of fact the accused persons broke in upon the unarmed victims and indiscriminately assaulted them with deadly weapon as a result whereof Kisto died on the spot and the P.W.1 suffered as many as 8 injuries which could have been fatal according to Dr. Sen. As regards the injury no.5 his evidence is as follows:-
"Because the injury no.5 is a compound fracture, it can be said to be fatal by itself"
The learned Trial Judge has already exonerated the accused Lalita although there is evidence to show that she had actively instigated her husband to kill Kisto by giving her husband a tangee which was duly used and Kisto was put to death. There is no scope to interfere with the judgment and the order under challenge.
In the result the appeal fails. The appellants are directed to surrender to the bail and to serve out the rest of their sentences. Notice in that regard is also through the learned Counsel appearing for the appellants.
Lower Court Records with a copy of this judgment be sent down to the learned Trial Court forthwith for information and necessary action.
Urgent xerox certified copy of the judgment, be delivered to the learned Advocate for the parties, if applied for, upon compliance of all formalities.
(GIRISH CHANDRA GUPTA J.)
I agree. (PARTHA SAKHA DUTTA J.)