Patna High Court
Meghnath Mahto And Anr. vs State Of Bihar on 23 February, 1999
Equivalent citations: 2000(1)BLJR765
Author: G.S. Chaube
Bench: G.S. Chaube, A.K. Prasad
JUDGMENT G.S. Chaube, J.
1. On 13-7-81 at 7.30 p.m., Abhiram Mahto (P.W. 9) of village Lakerbad within Saraikella P. S. in the district of West Singhbhum lodged a First Information Report with Saraikella police in the Sub-divisional Hospital at Saraikella that on that day at about 10.30 a.m. when he was ploughing his land appertaining to plot No. 108 measuring about two bighas situated at Kopatdanri joined by his brother Khudiram Mahto (P.W. 1) and two others named Kanga Mahto (deceased) and Nirmal Mahto (P.W. 8), 6 persons named Meghnath Mahto, Pati Mahto, Bishu Mahto, Balram Mahato, Dukhni Mahatain and Fuchu Majhi arrived their variously armed. Meghnath Mahato and Pati Mahato were wielding tangis (axe); Bishu Mahto and Balram Mahato lathis; Fuchu Majhi bow and arrows and Dukhni Mahatain Kulhari. They asked him and his companions not to plough the land. They declined to oblige. Therefore, Meghnath Mahato struck him (informant) with tangi on his head and he fell down. Pati Mahato gave tangi blow to deceased Kanga Mahto who fell down and thereafter, Dukhni Mahtain struck him with Kulhari she was carrying. Nirmal Mahato was also assaulted by Balram Mahto and Bishu Mahto by means of lathis. Thereafter, all the accused-persons started showering their respective weapons indiscriminately. Kalipado Mahato (P.W. 12) arrived to their rescue and was struck with lathi by Balram Mahto. In the meantime, some co-villagers including Lakhan Mahto (P.W. 7) and Ranjit Mahto also arrived their from the village. Lakhan Mahto was struck by means of Pasha (rear part) of Kulhari. When other co-villagers assembled there, the assailants fled from the field. The injured were taken to Saraikella Sub-divisional hospital where they were examined and treated by Dr. T.N. Ganju (P.W. 11). Later on, Kanga Mahato succumbed to the injuries sustained by him.
2. On such facts, all the six accused-persons were challaned by Saraikella police and they were put on trial. Charges under Sections 302/149, 307/149, 324/149, 323/149, 148 and 447 of the Indian Penal Code (hereinafter to be referred to as I.P.C.) were framed against all the accused-persons. They denied the charges and pleaded false implication.
3. The defence of the accused-persons is that the land of plot No. 108 (hereinafter to be referred to as the disputed land) was in their possession and they had grown paddy thereon some time back. On the previous evening, an agnate of the parties named Nalin Mahto had died at village Bijay and they had gone there to participate in his cremation. Taking advantage of their absence from the village, the informant party, namely, the informant, P.Ws. Kalipado Mahto, Lakhan Mahto, and deceased Ranga Mahto went to the disputed land and started ploughing the same with the help of some ploughmen. At about 10 30 p.m. when Meghnath Mahto noticed his paddy being ploughed, he went there and protested. On his protest deceased Ranga Mahto, P.W. 9 and P.W. 12 dealt. Tangi blows on him; whereas P.W. 7 struck him with stick. On his alarm, his brothers Bishu Mahto and Pati Mahto arrived there and rescue him. He was taken to Sub-divisional hospital at Saraikella where he lodged a First Information Report regarding the occurrence on the same day at 3.30 p.m., that is, prior to the lodging of information with the police by the first informant of the present case, namely, P.W. 9.
4. In course of trial of the accused-persons, the prosecution examined 15 witnesses and brought on record a number of documents including survey map and record of rights prepared during the cadastral survey and recent revisional survey. They also brought on record a registered sale-deed dated 3-3-78 (Ext. 3) purporting to have been executed by one Premi Mahatain (also named as Premi Mahatain) widow of one Manu Mahto in favour of the informant and his brother Khudiram Mahto (P.W. 1) respecting the total area of plot No. 108 and some other lands. In their evidence, prosecution witnesses stated that the land had been purchased by the informant and his brother and they had grown the paddy which was being ploughed by them. The defence also examined four witnesses and brought on record the F.I.R. of the counter-case instituted on the statement of Meghnath Mahto in support of their version of the occurrence.
5. On such evidence, the 2nd Addl. Sessions Judge of Chaibassa (Singhbhum) has held that the accused-persons were the aggressors inasmuch as the informant had purchased the disputed land on the basis of a registered-deed of transfer, the validity of which had not been challenged in a competent Court and were ploughing that land for the purpose of 'karhan' (act of ploughing field with standing paddy seedlings for weeding). The Addl. Sessions Judge has also come to the conclusion that since, admittedly, the paddy field was being ploughed for the purposes of Karhan, it was not likely to damage the crop; rather it was going to improve the crop prospect. Therefore, the accused-persons had no right to inflict injuries on the persons of so many injured resulting in death of one of them in exercise of their right of private defence of property. However, on evidence, Additional Sessions Judge has held that the prosecution failed to prove the presence of accused Bishu Mahato, Balaram Mahato, Fuchu Majhi and Dukhni Mahatain and that they inflicted injuries on the persons of the injured as alleged. Therefore, the Additional Sessions Judge has acquitted accused Bishu Mahato, Balaram Mahato, Dukhni Mahatain and Fuchu Manjhi of the charges framed against them. However, accused Meghnath Mahato and Pati Mahato have been found guilty of committing murder of deceased Ranga Mahato in furtherance of their common intention and criminal trespass. Therefore, they have been convicted under Sections 302 read with Section 34 and Section 447, I.P.C. Besides, accused Meghnath Mahato has been found guilty of attempting to commit murder of the first informant and convicted under Section 307, I.P.C. Accused Pati Mahato has also been found guilty for voluntarily causing hurt to Kalipado Mahato and Nirmal Mahato by means of tangi and accordingly convicted under Section 324, I.P.C, Both of them have, however, been acquitted of the charges under Sections 148 and 323 / 149, I.P.C. The trial Court has sentenced both Meghnath and Pati to undergo imprisonment for life besides a fine of Rs. 1,000/- each and in default S.I. for six months for the offence under Section 302 read with Section 34, I.P.C. Meghnath Mahato has also been sentenced to undergo imprisonment for life under Section 307, I.P.C. and Pati Mahato has been sentenced to undergo rigorous imprisonment for one year under Section 324, I.P.C. No separate sentence has been awarded to them for offence under Section 447, I.P.C. Their sentences are directed to run concurrently. The judgment was delivered on 2-6-89 in Sessions Trial No. 172 of 1983. Against their conviction and sentences, Meghnath Mahato and Pati Mahato have preferred this appeal. Meghnath Mahato is appellant. No. 1 (A-l) and Pati Mahato is appellant No. 2 (A-2).
6. Mr. N.N. Mahto, learned Counsel for the appellants has contended that from the evidence of the prosecution witnesses, it is not fully established that the informant party was in possession of the disputed land and had, in fact, grown the paddy crop which was being ploughed by them when the occurrence took place. He has further contended that the prosecution has failed to explain the injuries found on the person of A-1 and the learned trial Court has failed to appreciate this aspect of the case and altogether ignored the legal consequence of non-explanation of his injuries by the prosecution. All the witnesses examined in support of the prosecution case are either parties or interested and not independent witness, even though admittedly present at the time of the occurrence, have been examined. To crown all, the prosecution has failed to examine the Investigating Officer and this has materially prejudiced the accused in their defence, inasmuch as attention of witnesses of the prosecution to their statements made under Section 161 of the Code of Criminal Procedure was drawn and they could not be confronted with those statements which were in support of the defence version of the occurrence, it is contended.
7. On the other hand, Mrs. Sheela Prasad, learned A.P.P. has submitted that even though the prosecution has failed to prove the possession of the informant party over the disputed land, the defence equally having failed to prove that the accused-persons were in possession of that land and had grown the paddy crop, they could not be clothed with right of private defence when the informant party was ploughing the land which they had purchased from the rightful owner thereof. She has further contended that even if the prosecution has failed to explain the injuries found on the person of A-l, in view of strong, cogent and convincing evidence to prove the charges against the appellants, such omission on the part of the prosecution is of little consequence. In support of her contention, she has placed reliance on the decision of the apex Court in Patwari Devi v. State of Haryana .
8. Therefore, the points for consideration in the present appeal are whether the disputed land was in cultivating possession of the informant and his brother and they had grown the paddy crop thereon or it was in possession of the accused-persons and they had grown the said crop; secondly, whether the appellants were clothed with the right of private defence of property as well as of person; and, if so, to what extent.
9. Before proceeding to consider the evidence adduced on behalf of the parties, it is necessary to mention the relationship inter se of the accused-persons on the one hand and the informant party on the other. The following pedigree shall be useful in this regard:
Thakur Mahto
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| | | | | |
Birbal Manu Madhu Nunu Kisto Rajendra
Mahto Mahto Mahto Mahto Mahto Mahto
| = Premi/Pemi | = Shradha | |
| Mahatain | Mahatain | |
| x | x | |
| | | |
----------------------- | ------------ |
| | | | | | |
Nalin Sures Mahendra | Lakhan Ranjit |
Mahto Mahto Mahto | Mahto Mahto |
| (P.W. 7) (P.W. 10) |
| |
--------------------------------------- ------------
| | | | | | |
Jhari Hari Kanhai Kartik Balram Abhiram Khudiram
Mahto Mahto Mahto Mahto Mahto Mahto Mahto
| (P.W. 3) (accused) (P.W. 9) (P.W. 1)
| \ \ (informant)
| \ \
------------------ \ \
| | \ \
Yudhishtir Kalipadho \ \
Mahto Mahto \ \
(P.W. 12) \ \
\ \
--------------------------------- \
| | | | \
Nirmal Khageshwar Ranga Jitendra \
Mahto (P.W. 2) Mahto Mahto \
(P.W. 8) (deceased) \
---------------------------
| | |
Meghanath Bishu Pati
Mahto Mahto Mahto
A-1 (accused) = Dukhani
Mahtain
10. From the evidence oral as well as documentary, particularly the Khatians (Exts. 4 series) it will appear that one Thakur Mahto had six sons Birbal Mahto, Manu Mahto, Madhu Mahto, Nunu Mahto, Kisto Mahto and Rajendra Mahto. Birbal Mahto had three sons including Nalin Mahto. Manu Mahto died issuless leaving behind his widow Pemi Mahtain who died sometime in 1980. Madhu Mahto had five sons named Jhari Mahto, Hari Mahto, Kanhai Mahto, Kartik Mahto and Balram Mahto. P.W. 12 Kalipado Mahto is one of the two sons of Jhari Mahto. Kanhai Mahto is P.W. 3. He had four sons-Nirmal Mahto (P.W. 8), Khageshwar Mahto (P.W. 2), Ranga Mahto (deceased) and Jitendra Mahto. Balram Mahto was one of the accused-persons. A-l and A-2, besides accused Bishu Mahto, are Ms sons. Accused Dukhni Mahtain is the wife of A-2. Like Manu Mahto, Nunu Mahto also died issueless leaving behind his widow Shradha Mahtain who is also reported to be dead issueless. Kisto Mahto has two sons (Lakhan Mahto (P.W. 7), and Ranjit Mahto (P.W. 10) who has been described in the deposition as Lalit Patar but has signed thereon as Ranjit Mahto. Rajendra Mahto has also two sons who are Abhiram Mahto, the ifnromant (P.W. 9) and Khudiram Mahto (P.W. 1). The 6 accused Fuchu Majhi is a stranger to the family and a labourer of the appellants. Likewise, other prosecution witnesses are either the doctor who examined the injured (P.W. 11), the deed writer (P.W. 5) and an Amin (P.W. 13) who had, in course of the trial, allegedly measured the disputed land on the request of the first informant. Other witnesses are formal in nature and have proved documents including rent receipts (Exts. 9 series). Of the three witnesses examined by the defence, two appear to be related to the appellants and the remaining one D.W. 1 is formal in nature and appears to have examined as a prosecution witness also (P.W. 14).
11. The prosecution case is that the disputed land earlier belonged to Manu Mahto and was recorded in his exclusive possession in course of the cadestral survey settlement in Khata No. 24 as per Ext. 4/1. After his death, his widow Pemi Mahtain came in possession and he sold the same to P.W. 1 and P.W. 9 on the basis of a registered sale-deed dated 3-3-78 (Ext. 3). Thereafter, the vendees came in possession. They had grown the crop and were engaged in 'Karhan' with the help of the deceased and P.W. 8, when the appellants and other accused-persons arrived there armed with tangis, kulhari, lathis and bow & arrows and inflicted injuries on the persons of the deceased as well as P.W. 7, P.W. 8, P.W. 9 and P.W. 12. On the other hand, the defence version is that even though at the time of cadastral survey settlement separate Khatians had been prepared in the names of the sons and descendants of the common ancestor Thakur Mahto, the family was still joint and joint family properties unpartitioned. Therefore, in course of the revisional survey settlement operation joint khatian was prepared in, the names of surviving sons of Thakur Mahto and the descendants of those already dead including Pemi Mahatain and Shradha Mahatain (As per Exts. 4/3 to 4/11). At a later stage, those lands were amicably partitioned among the male descendants of Thakur Mahto and the disputed land was in cultivating possession of the branch of the appellants. They had grown the crop of paddy at the relevant time and the informant party went to plough the same surreptitiously in assertion of their title on the basis of Ext. 3 which the informant and his brother had got executed by impersonating some woman as Pemi Mahtain before the registering authority.
12. P.W. 1 Khudiram Mahto is one of the vendees from Pemi Mahtain. He has stated that he and his brother (P.W. 9) had purchased the disputed land from Pemi Mahtain and had grown the paddy thereon. They were doing 'karhan' work by ploughing it when the occurrence took place. According to him, that land had fallen to the share of Manu Mahto in course of partition among the brothers and after purchasing the same from his widow, they were coming in possession since March 1978. In course of his cross-examination, he has stated that after the death of her husband Pemi Mahtain was keeping only two/three bighas out of her husband's 14/15 bighas lands in her khas cultivating possession and the remaining of her lands she used to get cultivated by others. According to him, those lands were either fallow or gora. When further pursued in cross-examination, the witness stated that Pemi Mahtain used to get her lands cultivated by engaging servants (Munis) named Reghtu Mahto and Hari Mohan Mahto for a period of 4 years only. He could not say who were cultivating those lands thereafter. He further stated that he himself cultivated the lands of Pemi Mahtain on batai for 5-7- years, but failed to say during which years. According to him, only 2 bighas land of Pemi Mahtain used to be cultivated by her Munis; but could not say in what manner she was getting her other lands cultivated. He denied that the lands of the branch of Manu Mahto were being cultivated by her agnates/co-sharers by dividing among themselves and the disputed land was coming in cultivating possession of Balaram Mahto, the father of the appellants, since last settlement. Even though he claims to have purchased the disputed land on the basis of the registered sale-deed, no attempt was made to get the names of the vendees mutated.
13. P.W. 9 is the brother of P.W. 1 and first informant. He has made the same statements while in the witness box. However, from his evidence it appears that even though he got a sale-deed executed purportedly by the widow of Manu Mahto, he concealed this tact to the branch of the appellants even though he states that, he disclosed it to other co-sharers. According to him, Pemi Mahtain was in cultivating possession of 20 bighas land out of which he purchased 6 bighas for a paltry sum of Rs. 6,000/- only including two bighas disputed land. On the same day, P.W. 12 had also purchased 2 1/2 bighas land from the same Pemi Mahtain. He has said that the remaining 2 1/2 bighas had already been purchased by P.W. 12 from her in 1974, a fact which is not disputed. He has said that the remaining 9 bighas are Gora lands situated at three different places in the chunk of three bighas, each. He himself cultivated half of a chunk of four bighas. He says that, he is still cultivating that part of the land because he was cultivating the same even earlier. According to him, of the remaining five bighas half is fallow and the remaining half is being cultivated by Balram Mahto, Kanhai Mahto, Kalipado Mahto, Kartik Mahto and Yudhisthir Mahto, They were so cultivating even when Pemi Mahatain was alive. This witness admits that there had been no partition or division of the lands of the branch of Manu Mahato after her death. When further pursued in cross-examination, the witness has stated that he purchased on the basis of the same document half area of plot No. 88 which is adjacent to plot No. 108 and the remaining area thereof was in possession of other co-sharers during the life time of Pemi Mahtain. He has stated that he purchased the entire area of plot No. 108 and parts of some other plots because the other parts of those plots were being cultivated by other co-sharers from before. Even after purchasing pans of other plots like plot No. 88, he did not care to get the purchased portion measured and carved out from the chunk. The witness has also stated that he was himself cultivating the disputed plot on behalf of Pemi Mahtain. for three years prior to her death. Earlier, her brother and nephew used to cultivate for her. None of them has been examined by the prosecution to prove that actually the disputed plot was in cultivating possession of Pemi Mahtain before it was sold in 1978. The witness has further stated that our. of the remaining 9 bighas land of the branch of Manu Mahto, he himself cultivates 7-8 kathas, one bighas is cultivated by P.W. 10; and 5-6 kathas by Mahendra Mahto. According to him, Pemi Mahtain herself distributed her lands among her agnates, that is, the descendants of the other brothers of her late husband. She had also, likewise, divided part of 4-5 bighas land among the branches of Madhu Mahto, Krishto Mahto, Birbal Mahto and Rajendra Mahto equally. He says that she had so divided all her lands except those she was herself cultivating.
14. P.W. 12 Kalipado Mahto has also stated that the informant had purchased the disputed land from Pemi Mahtain on 3-3-78 and thereafter he came in possession and had grown paddy crop respecting which 'Karhan' was being done at the time of the occurrence. As indicated earlier, on the same day, he had also purchased 2.4 acres land from the same vendor. He admits that no mutation was attempted by him respecting the land so purchased. He admits that all the lands of the family which were recorded jointly in the last survey settlement, were not yet partitioned correctly, meaning thereby that even though those lands are divided among the co-sharers, there has been no division according to their respective shares. According to him, Pemi Mahtain was cultivating about 20-25 bighas land left by her husband by hired labour and had distributed part of her lands among the agnates.
15. P.W. 2 Khageswar Mahto, one of the brothers of the deceased, has also stated that the disputed land was in possession of the informant and he had grown the paddy thereon. His attention was drawn to her previous statement made to the Investigating Officer that both the parties were claiming that land, he denied having made any such statement and the I.O. not having been examined, he could not be confronted. P.W. 7 Lakhan Mahto has also stated that the paddy was grown on the disputed land by informant Abhiram Mahto. Earlier, that land was in cultivating possession of Pemi Mahtain who sold the same to the informant and his brother about 5 years back and since then the purchaser was in possession thereof. He has stated that common ancestor Thakur Mahto had about 200 bighas land which devolved upon his sons. However, he failed to state whether or not there had ever been partition, among the sons of Thakur Mahto. He admitted that those lands were joint during last settlement and have not been partitioned as yet. Even though he stated that the disputed land was earlier in possession of Pemi Mahtain and after transfer it came in possession of the first informant, in course of cross-Examination he stated that so long as Pemi Mahtain was alive that land was in her own cultivating possession; meaning thereby that on the basis of Ext. 3 the informant and his brother did not come in possession of the disputed land. It may be mentioned that the alleged transfer was made in March, 1978 and Pemi Mahtain died a month or two before the occurrence which took place in the middle of July 1980. Therefore, at least, the statement of P.W. 7 rules out possession of the informant over the disputed land on the basis of the sale-deed dated 3-3-78. It appears that this witness had stated to the I.O. that the disputed land was in possession of Balram Mahto, the father of the appellants and because of attempt on the part of the first informant to take forcible possession of the same, the occurrence had taken place. Naturally, he denied having made such a statement to the I.O. However, another injured Nirmal Mahto appears to be a bit more can did when he admitted in course of cross-examination that he had stated to the I.O. that the disputed land belonged to Balram Mahto. However, at the same time he also asserted having stated that disputed land was in possession of Abhiram Mahto as earlier stated by him in course of his examination-in-chief. This witness has also stated that Pemi Mahtain was cultivating the disputed land during her life time and that dispute arose only after her death. In other words, so long as the purported vendor of the first informant was alive she was in cultivating possession of the disputed land ruling out possession of the informant and his brother. According to him, the agnates of Pemi Mahtain used to cultivate her land as and when she made a request by hiring their plough.
16. Thus, from the evidence of the prosecution witnesses, it emerges that during her life time, Pemi Mahtain, the widow of Manu Mahto, was not in cultivating possession of, at least, all the lands of the share of her husband. Most of those lands were being cultivated by other agnates including the appellants and their father Balram Mahto. Of course, the witnesses have tried to canvass that the agnates were so cultivating only lands distributed among them by Pemi Mahtain herself and not on amicable division of the joint family lands, particularly of the share of Manu Mahto among the co-sharers. Some of the witnesses have also admitted that so long as Pemi Mahtain, the alleged vendor of the first informant, was alive, the informant did not come in possession. Even though I do not intend to say anything on the question whether the sale-deed dated 3-3-78 executed in favour of the informant and his brother is genuine or not, this much can be said that this document was not acted upon. Admittedly, D.W. 2 Lakhikant Mahto holds land in the vicinity of the disputed land and he has stated that the disputed land was in cultivating possession of Balaram Mahto and his sons. So has stated Raj Mahto of the same village. Their statements in support of the possession of Balaram Mahto and his sons over the disputed land supports the statements of P.Ws. 7 and 8, one of whom admits having stated at the earliest in cause of investigation that disputed land was in possession of Balaram Mahto. In this connection, it may be mentioned that in the First Information Report, there was no mention that actually 'karhan', i.e. ploughing of standing paddy for the purpose of weeding, etc., was being done by the informant and his other associates including the deceased. What was stated therein was that they were ploughing the disputed land. Therefore, from the direct evidence of D.W. 2 and D.W. 3, and the circumstances which have been gathered from the statements of the prosecution witnesses, it can be safely concluded that the disputed land was in possession of Balaram Mahto and his sons and they had grown the paddy, and taking advantage of the absence of the members of the family of Balaram Mahto as they had gone to another village to attend cremation of their agnate Nalin Mahto, the informant and his associates went to the disputed land and started ploughing the same in sheer assertion of their right. It will not be out of place to mention here that after purchasing some lands from Pemi Mahtain, both the informant and P.W. 12 have transferred portions thereof to other prosecution witnesses including P.W. 3, P.W. 7, P.W. 8 and P.W. 10. It has come in evidence that during the life time of the widow of Nunu Mahto some of her lands were being cultivated by deceased Ranga Mahto. However, that land was purchased by the branch of the appellants in the name of the wife of appellant No. 2 by paying hesty consideration of Rs. 30,000/-, Probably, this prompted the informant and his brother to bring into existence a transfer deed respecting the land in-cultivating possession of the branch of the appellants to teach them a lesson which led to the occurrence resulting in the death of one person and injuries to, at least, five including appellant No. 1.
17. This takes to the injuries found on the person of appellant No. 1, and likely consequence of failure on the part of the prosecution to explain them. P.W. 11 Dr. T.N. Ganju who had examined the deceased and the injured witnesses at the Sub-divisional Hospital of Saraikella in the evening of 13-7-81, had also examined at the same hospital appellant No. 1 at 2. p.m. and had found the following injuries on his person:
(i) Incised wound 1" x 1/2" on the left side of the forehead with fracture of temporal bone;
(ii) Incised wound 1" x 1/2" on the right side of the forehead with fracture of frontal bone;
(iii) Swelling on both hands near the wrist;
(iv) Complaint of pain all over body without any sign of external injury.
According to the doctor, injuries Nos. (i) and (ii) were grievous in nature and might have been caused by a sharp-cutting weapon like tangi; while injury No. 3 was simple and caused by hard and blunt substance. He had issued a certificate in respect of the injuries found on the person of A-1 and that certificate has been marked Ext. A. The document discloses that those injuries had been caused within 24 hours prior to the examination of the injured, even though he has failed to state in course of his evidence regarding their age. Incidentally, similar omission has been made by the doctor (P.W. 11) respecting injuries, he had found on the persons of the deceased and other injured persons like P.W. 7, P.W. 8, P.W. 9 and P.W. 12. Therefore, there can be no denying the fact that A-l had sustained some injuries on his person; two of which were incised and grievous in nature and one was a swelling and simple, besides complain of pain all over the body. It has been admitted by the prosecution witnesses that A-l had been seen at Saraikella Sub-divisional Hospital, if not on the day of the occurrence, on the next day. However, no witness including the injured has stated that he had seen A-l injured in course of the occurrence. They have chosen to deny that he had been injured at all. Indeed, an attempt has been made by some witnesses that when appellant No. 1 went to assault the deceased, the latter caught hold of his tangi and when A-1 tried to snatch the tangi, he had sustained injuries on his person. This is, at least, what P.W. 1 stated in course of his examination-in-chief However, when the witness was put to cross-examination on this point, he categorically denied that he had seen any injury on the person of A-1. In other words, the witness did not stick to his earlier stand that A-1 had, in fact, sustained injuries as was found by P.W. 11 which were caused to him in course of scuffle between him and the decreased for having complete control over the weapon of assault wielded by A-1. The story that when the deceased fell down, A-1 went to assault him and in course of the assault the deceased caught hold of his tangi and there was scuffle between the two, does not inspire credence. It has been stated by the prosecution witnesses that such event took place when the deceased had fallen on being hit by A-2 with tangi on his head. The witnesses have also stated that when he fell down, the wife of A-2 who was carrying a kulhari had also struck him with that weapon on his shoulder. It was, thereafter that A-l allegedly went to assault the deceased. The injuries allegedly inflicted on the person of the deceased by A-2 and his wife were of such nature that it was not expected of the deceased to resist the blow aimed by A-1. as suggested by the witnesses. Moreover, in that situation, the deceased was expected to catch hold of the front portion of the stick with which the blade of tangi was fixed and if A-l tried to snatch the same from the clutch of the deceased, it was not possible that the former could have sustained cut injuries on his head, that too, causing fracture of skull-bones. To crown all, as will appear from the evidence of the prosecution witnesses, to be discussed hereinafter, the very story of A-1 assaulting the deceased by means of tangi which he was carrying, is an innovation and development in course of trial. From the trend of cross-examination drawing attention of the prosecution witnesses to their statements made under Section 161 of the Code of Criminal Procedure respecting the Act of A-1 assaulting the deceased, is indicative of this conclusion that even in the earliest version contained in the First Information Report (Ext. 1) there is no whisper that A-1 had even tried to touch the body of the deceased in course of the occurrence.
18. This being the position that the prosecution witnesses have failed to state how A-l could have sustained injuries found on his person, learned Counsel for the appellants has contended that such non-explanation leads to the only conclusion that what the defence has stated in respect of the occurrence that had taken place on the disputed land in the morning on 13-7-81, is true. In support of this contention, the learned Counsel has placed reliance on the decision of the apex Court in Laxmi Singh and Ors. v. State of Bihar and Ors. . In that case the apex Court has held that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in course of altercation is a very important circumstance from which the Court can draw the following inferences: (i) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (ii) that the witnesses who have denied the presence of the injuries on the person of the accused are-lying on a most material point and therefore, their evidence is unreliable; (iii) 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. It has been further held in that case that 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. Noticing an earlier decision of the same Court in State of Gujarat v. Bai Fatima , the apex Court has further observed that there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case. This principle would obviously 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 credit-worthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.
19. On the other hand, learned Counsel for the State has contended that non-explanation by the prosecution witnesses of the injuries found on the person of A-l is of little consequence in view of the fact that the prosecution has been able to establish its case cogently and convincingly. Reliance has been placed on yet another decision of the apex Court in Harekrishna Singh and Ors. v. State of Bihar . In that case, the apex Court has taken a view that it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of the guilt of the accused beyond reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any. reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused.
20. It appears that noticing two apparently conflicting decisions of the apex Court, respecting consequence of non-explanation of injuries found on the person of the accused, a two-Judge Bench of the apex Court hearing Criminal Appeal Nos. 1608 to 1609 of 1995 referred the matter to a three-Judge Bench which held in Ramsundar Yadav and Ors. v. State of Bihar , as follows:
It has now been brought to our notice that earlier a three-Judge Bench of this Court had considered the above questions in Bhaba Nanda Sarma v. State of Assam , and held that the prosecution is not obliged to explain the injuries on the person of the accused in all cases and in all circumstances and, according to the learned Judges, it is not the law. The same question again came up for consideration before another three-Judge Bench of this Court in Vijayee Singh v. State of U.P. , wherein it has been held as under: (See p, 202 para 10).
'In Mohar Rai case , it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true: Likewise in Lakshmi Singh case , also it is observed that any non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. But, such a non-explanation may assume 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. But, where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries are not explained by the prosecution cannot be itself be a sole basis to reject such evidence, and consequently the whole case.
21. Therefore, it is by now a settled law that prosecution is not invariably obligated to explain the injuries found on the person of the accused, specially when the evidence relied upon in proving the guilt of the accused is cogent, convincing and a creditworthy. However, if the witnesses are not creditworthy being interested, partisan and inimical and there is also a defence version competing in probability with the prosecution version and the prosecution witnesses failed to explain the injuries found on the person of the accused, the Court may wall infer from such non-explanation of the injuries on the accused, that the prosecution witnesses are not speaking the whole truth; rather are suppressing material facts and that the prosecution version being more probable, is true.
22. In the instant case, the prosecution has alleged that at the time of the occurrence, the deceased and some of the injured were ploughing the paddy field of the first informant for the purpose of 'Karhan' of the standing crop and they were assaulted by the appellant and four other accused-persons including a female. On the other hand, the defence version is that the land on which the deceased and other injured including the first informant were ploughing, was actually in cultivating possession of the family of the appellants and they had grown the crop of paddy thereon. Taking advantage of the absence of the male members of their family, the informant and his associates went to plough that land in assertion of their claim of title and possession based on document purported to have been executed some three years back by an impostor. When A-2 went to protest, he was assaulted. On consideration of the evidence on the record, I have come to the conclusion that the prosecution has failed to establish that the crop ill-question had been grown by the informant and his brother. On the other hand, there is indication that the said land was in cultivation possession of the family of the appellants and they had grown paddy crop thereon. When A-1 or for that matter all the accused-persons went there to protest, the occurrence took place. The witnesses examined on behalf of the prosecution are all interested and (sic) in the sense that they appear to have formed a group. The evidence of the prosecution witnesses discloses that even though P.Ws. 1 and 9 on the one hand and P.W. 12 on the other purchased some lands from the widow of Manu Mahto in March. 1978, at a later stage, they sold portions thereof to others, more particularly, the witnesses who were participating in ploughing the disputed land and/or got injured in course of the occurrence that followed. Even though, according to the prosecution, witnesses themselves there were independent witnesses present when the occurrence took place, none has been brought to the witness box in support of the prosecution story. Therefore, I am of the view that in the present case, failure on the part of the prosecution witnesses to explain the injuries on the person of A-1 leads to the only inference that, in all probability, what the defence had stated is true.
23. The question that now arises is whether the appellants had any right to inflict injuries on the persons who had gone to plough the crop which had been grown by them (appellants) so much so that one of the injured died after a few days in course of treatment.
24. Section 97 of the Indian Penal Code clothes a person with right of private defence of body and property, whether movable or immovable, of himself or of any other person against any act which is an offence .affecting human body or an offence falling under the definitions of theft, robbery, mischief or criminal trespass. According to Section 100, the right of private defence of the body extends to the causing of death or of any other harm to the assailant, if the offence which occasions the exercise of that right, inter alia, is art assault of the nature which reasonably causes an apprehension that death or grievous hurt will otherwise be the consequence thereof. If the offence giving rise to the right of private defence of person is not of the nature stated in Section 100, then such right extends to voluntarily causing to the assailant any harm other than death. The right commences as soon as a reasonable apprehension of danger to the body arises and it continues as long as such apprehension of danger to the body continues (Section 102).
25. The right of private defence of property to the extent of causing death, according to Section 103, is available in cases of robbery, house-breaking by night, mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling or as a place for the custody of property; and theft, mischief or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised. According to Section 104, right of private defence of property extends to the voluntarily causing to the wrong-doer of any harm other than death, if the offence which occasions the exercise of such right is theft, mischief or criminal trespass not of the description enumerated in Section 103.
26. Obviously, in the present case, when the informant-party went to plough the field on which the family of the appellants had already grown paddy crop, it did not occasion exercise of the right of private defence as mentioned in Section 103, that is, to the extent of causing death because such an act did not amount to robbery, house-breaking by night, or mischief by fire to a dwelling house, etc. Certainly, the act of the informant, party did not amount to theft or house-trespass. Eventhough such act amounted to mischief, it was of not such a nature as to reasonably cause apprehension in the mind of the appellant and other accused-persons that death or grievous hurt will be the consequence. In view of the evidence of the prosecution witnesses that by ploughing the field, the informant and his companions were simply doing the work of 'karhan' and this is what A-1 stated in course of his examination under Section 313 of the Code of Criminal Procedure, the learned trial Court has held that such act of the informant-party was not likely to cause any damage to the standing crop and, therefore, no offence of mischief was committed.
27. From the tenor of evidence led by the parties, I find that the intention of the informant-party was not to cause damage to the standing crop by ploughing the same as it appears to be a practice of the farmers ploughing paddy fields in rainy seasons for improvement of the crop and such practice is locally known as 'karhan' (weeding). But, the learned trial Court failed to notice the provision of Section 104 of I.P.C, which clothes a person with right of private defence of property to the extent of causing any harm other than death to the wrong-doer if his act amounted, inter alia, to criminal trespass. Section 441, I.P.C. defines criminal trespass. According to this definition, whoever enters into or upon property in the possession of another with intent to commit an offence or to intimidate, insult or annoy any person in possession of such property or having lawfully entered into or upon such property, unlawfully remains there with intent thereby to intimidate, insult or annoy any such person, or with intent to commit an offence, is said to commit 'criminal tresspass'. From evidence, I have found that the disputed land was in cultivating possession of the family of the appellants and, as a matter of fact, they had grown paddy crop thereon some time back. The informant-party went to plough that land in sheer assertion of their claim of title and possession based on a document of ante-date. Certainly, their such act was intended to annoy the persons who had already grown the crop thereon. Even if it is held that in view of the fact that they had gone there to plough the land surreptitiously and, therefore, their such act did not constitute an offence of 'criminal trespass' and was merely a 'civil trespass', the moment A-1 or for that matter the accused-persons went there and protested and were greeted with assault on A-1, the act of the informant-party became 'criminal tresspass'. Therefore, the appellants had a right to defend their property against 'criminal trespass' committed by the informant-party by inflicting injuries on the trespassers. The assault on A-1 at the hands of the informant-party resulting in two grievous injuries to him on his head by means of a tangi, certainly, occasioned the exercise of right of private defence of his person. Weapons used and the injuries caused thereby were sufficient to give rise to apprehension that if the right of private defence of his person was not exercised, death or, at least, grievous hurt would be the likely result of such assault by the informant party. Therefore, in exercise of such right, the appellants and other accused-persons were within their right in inflicting injuries on the persons of the injured and the deceased.
28. Therefore, in the circumstance of the present case, the accused-persons including the appellants were clothed with right of private defence of their property to the extent mentioned in Section 104, I.P.C. when their field with standing crop was being ploughed by the informant-party. That right extended to the causing of any harm other than death. However, the moment there was a protest, the wrong-doers took unto themselves to assault A-1 by means of tangi and lathi. Evidence of P. W. 11 shows that he sustained two injuries on his head which were grievous in nature. Therefore, such act of assault on the part of the informant-party gave rise to a reasonable apprehension that if not death, grievous hurt would be the consequence of such assault. In such a situation, the appellants got the right of private defence of the person of A-l to the extent of causing death of his assailant or assailants. Therefore, the act of the appellants in inflicting injuries on the person of the deceased and other injured was well protected by Section 97 read with Section 100, I.P.C.
29. The injuries found on the persons of the deceased and other injured, particularly, the informant (P.W. 9), disclose that the appellants did not even exceed their right of private defence. According to the medical evidence, five injuries including a bruise had been found on the person of P.W. 9; remaining 4 were cut injuries on head, right hand, buttock and leg. Three of them were grievous in nature and rests simple. The deceased had also sustained as many as 6 injuries, according to P.W. 11. They were cut injuries on his head, right shoulder, right leg, back, cheek and left shoulder. According to the prosecution witnesses, P.W. 9 had been assaulted by A-1 and A-1 alone; while the deceased had been inflicted injuries not by A-2 alone, but even by A-1 and the wife of A-2. According to P.W. 9, when A-2 gave tangi blows on the head of the deceased, and he fell down, Dukhni Devi struck him with kulhari and A-1 with tangi. From the evidence of P.W. 9 it does not appear that A-2 had caused more than one injury on head. However, P.W. 7 has stated that even after the deceased fell down, A-2 continued assaulting him by means of tangi. On his part, P.W. 8 has stated that after the deceased fell down on being given tangi blow by A-2, his wife Dukhni Devi also struck him with kulhari and A-1 by means of tangi. So has said P.W. 12.
30. The post-mortem report (Ext-13) discloses that the doctor had found two surgical wounds on the scalp of the deceased; one in the centre of the scalp; and second in the left side of the temporal region. The latter wound was probably caused by the surgeons for removing blood clots. Besides, those two surgical wounds on the head, the doctor had also found an incised wound on the right side of the scapula at its lower angle. There was also an incised wound on the left side of face below the eye. Of course, there were scattered bruises on the lower part of both the legs of the deceased. The death had occurred due to coma caused by brain haemorrhage, probably as a result of the head injury. However, the shock resulting from the rupture of lungs corresponding to the incised wounds on the right scapula region was also a contributory factor.
Therefore, in the circumstance of the case, the act of A-2 in inflicting injury on the head of the deceased is protected by Section 100, I.P.C. Indeed, when one is required to inflict injury on an assailant in exercise of right of private defence of property, or person in cases covered by Sections 100, 101, 103 and 104, his not expected to measure the force with any golden scale.
31. In the result, I have no hesitation in coming to the conclusion that the facts and circumstances of the case did not warrant conviction of the appellants on any of the charges for which they have been erroneously held guilty by the trial Court. Therefore, the appeal succeeds and the same is allowed. The conviction and sentences of both the appellants are hereby set aside and they are acquitted. Fine, if already realized, shall be returned to the appellants. The appellants are discharged from the liability of their respective bail-bonds.
A.K. Prasad, J.
32. I agree.