Patna High Court
Bhupat Kumhar And Ors. vs The State Of Bihar on 13 August, 1974
Equivalent citations: 1975CRILJ1405
JUDGMENT Muneshwari Sahay, J.
1. All the twelve appellants have been convicted under Section 302 read with Section 149 of the Indian Penal Code and have been sentenced to undergo rigorous imprisonment for life. They have further been convicted under Section 325 read with Section 149 of the Indian Penal Code, but no separate sentence has been passed against them under the section. Three of the appellants, namely, appellants Sanat Mahton, Budhan Kumhar and Babulal Kumhar have been further convicted under Section 148 of the Indian Penal Code whereas the remaining appellants have been convicted under Section 147 of the Indian Penal Code. No separate sentence, however, has been passed against the appellants under these sections.
2. The appellants are all residents of village Jogia Tola within Jainagar Pohce station of Hazaribagh district. Most of the appellants are related to one another. Appellants 3 and 6 are brothers and appellants 4 and 5 are their sons respectively. Appellant No. 1 is the nephew of appellant No. 6 and appellants Nos. 11 and 12 are his cousins. Appellant No. 2 is the son of appellant No. 12 and appellant No. 8 is the son of appellant No. 11. Appellants 7, 9 and 10 do not seem to be related to these appellants.
3. The occurrence had taken place on account of a dispute over a land measuring about 1 acre and which was locally known as 'Ambadohar'. It appertained to survey plot No. 15/54. The prosecution alleged that deceased Sona Mahton had reclaimed this land and thereafter had taken settlement of the same from the landlord twenty years ago. Sona Mahto, therefore, claimed to be in possession of this land ever since he had reclaimed it On the date of the occurrence, i.e. the 31st of August 1965, in the morning Sona Mahton and his three sons (P.Ws. 2, 3 and 4) were repairing one of the ridges of this field which had teen breached by flow of water. While they were engaged in repairing the ridge, all the appellants went there armed variously with lathis, bhalas and tangi. Appellants Nos. 9 and 11 had bhalas with them, appellant No. 8 had a tangi and the rest had lathis. Appellant No. 9 asked Sona Mahton as to why he was repairing the ridge. Sona Mahton replied that the field belonged to him, and, therefore, he was repairing the ridge which had been breached. Appellant No. 9 thereupon ordered to attack Sona Mahton and all the appellants started assaulting Sona Mahton and his three sons. Appellants Nos. 8 to 12 attacked and assaulted Sona Mahton, appellants Nos. 2, 5 and 7 assaulted P.W. 2, appellants Nos. 3 and 4 assaulted P.W. 3 and appellants Nos. 1 and 6 assaulted P.W. 4. The appellants fled away after the assault. P.W. 1 Lati Mahto who has his field adjacent north of the land in question came to the place of occurrence when the appellants had left the place.
4. One Lakhan Mahto also came there. Lakhan arranged for a bullock-cart for carrying Sona Mahto and his three injured sons to the Police station. They had, however, hardly crossed the bridge over the river Barakar, which was only 500 yards away from the place of occurrence, that Sona Mahto died. His dead body was, therefore, left under a tree in charge of some persons who had arrived there, P.W. 1 went to the police station along with a Chaukidar. First information report (Exhibit 1) was recorded at the Police station by the Officer-in-charge, S. I. Bishwanath Banerjee at about 11-30 p. m. The police station, it may be pointed out, was 24 miles away from the place of occurrence. The investigation Officer went on the following day to the place where the dead body of Sona Mahton was lying. He held inquest over the dead body and prepared the inquest report (Exhibit 2). The dead body was sent to Kodarma Hospital with constable Nageshwar Narain Singh (P.W. 6). The investigating Officer also inspected the place of occurrence which was two miles to the south of village Jogia Tola. He noticed blood stains there and seized the blood stained earth. He prepared the sketch map (Exhibit 4) of the place of occurrence and examined witnesses. Eventually he submitted chargesheet against the appellants.
5. The appellants were put on trial after the usual commitment inquiry under Chapter XVIII of the Code of Criminal Procedure.
6. The prosecution examined eight witnesses before the court below including the informant (P.W. 1) and the injured P.Ws. 2, 3 and 4. P.W. 7 was the Amin who had prepared a map of the place of occurrence at the instance of the Investigating Officer. Doctor T. P. Ojha who had held the post-mortem examination and had examined the injured was not examined before the court below. The post-mortem report and the injury reports were proved by P.W. 8 Doctor Kusum Prasad who had merely proved the writings of Doctor Ojha.
7. The appellants denied the charges framed against them. Their defence was that they themselves were in possession of the Amibadohar field which they reclaimed. They alleged that they had grown paddy on the same and on the date of the occurrence Sona Mahton and his sons had gone there to destroy the paddy and wanted to re-plough the land. The appellants protested against this whereupon the prosecution party opened assault. The appellants also retaliated. It was said that it was just possible that Sona Mahton and his sons got injured in the fight. The appellants, however, did not examine any witness in their defence.
8. Learned Counsel for the appellants has contended that the prosecution version of the manner of the occurrence was not acceptable as the prosecution had failed to prove the possession of the deceased Sona Mahton over the Ambadohar field. It is also submitted that the evidence adduced in support of the prosecution case was highly interested and unsatisfactory, and. therefore, the conviction of the appellants could not be sustained on its basis.
9. I have given due consideration to the submissions made by learned Counsel for the appellants and have carefully scrutinised the evidence of the prosecution witnesses and I am fully satisfied that the appreciation of evidence by the learned Additional Sessions Judge who tried the appellants is basically sound. It will be noticed that the prosecution examined four witnesses namely, P.Ws. 1 to 4 as witnesses of the occurrence. It is true that P.Ws. 2, 3 and 4 are the sons of the deceased and P.W. 1 is his nephew. This fact however, far from affecting their evidence adversely adds weight to their evidence, for it has been repeatedly pointed out not only by this Court, but also by the Supreme Court that the natural impulse of a close relative would be to see the real assailant punished and not to spare him and to implicate some innocent persons for the crime. Apart from this it is also noticed that P.Ws. 2 to 4 had received injuries in the occurrence. They were, therefore, natural witnesses to the occurrence, it may be pointed out that the appellants do not dispute the fact that these three witnesses had received injuries in the occurrence. As regards P.W. 1 it may be pointed out that he owns and possesses land adjacent north of the Ambadohar field. Therefore, he is as well a competent witness to depose in proof of the occurrence. It is true that the witness did not come to the place of occurrence when the occurrence was in progress. He, however, stated in his evidence that at the time of the occurrence he was weeding his paddy field and he did not go to the place of occurrence at that time due to fear. As pointed out above, he was the nephew of the deceased and it was natural for him to apprehend that if he went near the place of occurrence he would also become a victim of assault. Therefore, his evidence cannot be rejected unless it is otherwise found to be unsatisfactory.
10. All the four witnesses have stated that the Ambadohar field was in possession of Sona Mahton and his sons who had reclaimed the same and had taken settlement of the land from the landlord. The appellants contended that the evidence of these witnesses on the question of possession should not be accepted as the prosecution had not produced any deed of settlement nor any rent receipt to evidence the payment of rent of the land. It may be pointed out that P.W. 2 has admitted that he had been paying rent of the land even to the State of Bihar and receipts were being granted to them. On behalf of the State, on the other hand, it is submitted that a proceeding under Section 144 of the Code of Criminal Procedure had taken place between the parties over the land of survey plot No. 15 and in that proceeding the appellants had expressly not laid any claim over survey plot No. 15/54, which was the Ambadohar field. A reference is made to the certified copy of the proceeding (Exhibit B). The order dated the 6th July, 1963, which was the final disposal of the proceeding shows that the first party-appellants, had disclaimed possession and title over plot No. 15/54 of Khata No. 1 having an area of 1.02 acres of land and the second party (prosecution party) had claimed possession and title over this plot. Hence, the rule was made absolute against the first party and was vacated in favour of the second party so far as this plot was concerned. The evidence of the prosecution witnesses clearly shows that the occurrence had taken place for this very plot. The learned Additional sessions Judge while referring to the proceeding under Section 144, Cr. P. C. observed that having been declared in possession of this plot in that proceeding, it was unlikely that Sona and his sons would give up possession. On the contrary, he held the presumption of law would be that they continued in possession of this land. Learned Counsel for the appellants has contended that an order in a proceeding under Section 144, Cr. P. C. cannot be an evidence of possession in favour of any party and, therefore, the learned Additional Sessions Judge was wrong in presuming that Sona was in possession over this field and he continued in possession of the same. It is true that an order under Section 144, Cr. P. C. is not an evidence of possession. Nevertheless if the order shows the respective claims of the parties over a disputed land, the same can be looked into for the limited purpose for examining as to what was the claim of the parties to the proceeding. It is, therefore, significant to notice that the appellants did not lay any claim over survey plot No. 15/54. It was this plot over which the occurrence had taken place. It is also noticed that Sona and his sons had claimed in that proceeding as well that they were in possession of this field. Therefore, notwithstanding the fact that the prosecution had not produced and proved any settlement paper or rent receipt in this case, I find no reason to reject the testimony of P.Ws. 1 to 4 on the question of possession over the disputed land. It had also been submitted on behalf of the appellants that no independent witness had been examined in proof of possession of the land and, therefore, the prosecution case on the point could not be accepted merely on the statements of some very interested witnesses. I am unable to agree with this submission. The evidence of the prosecution witnesses find support from other circumstances of the case and, as pointed out above, there is no justifiable reason for discarding their evidence on this question.
11. All the four prosecution witnesses (P.Ws. 1 to 4) have consistently stated in their evidence notwithstanding some minor contradictions here and there in their evidence that at the time of the occurrence Sona and his three sons were engaged in repairing the ridge of the field which had been washed away. When the appellants arrived there armed variously with lathis, bhalas and tangi, appellant No. 9 Sanat Mahton protested against the repair of the ridge, Sona however, insisted to repair it; Sanat thereupon ordered to attack and the appellants surrounded and assaulted Sojia and his three sons with their weapons. Five of the appellants, namely appellants Nos. 8 to 12 assaulted Sona and the other appellants assaulted P.Ws. 2 to 4. P.W. 2 had stated in paragraph 21 of his deposition that the occurrence had taken place in the middle portion of the field which had been converted into a paddy filed. It may be pointed, out that according to him, the entire field had not been reclaimed. The reclaimed portion was in the middle and there were party lands to the north and south of the reclaimed field. P.W. 3, on the other hand, stated that the assault had taken place on the parti land contiguous south of the paddy field and not in the paddy field. In my view this discrepancy cannot discredit the testimony of the witnesses. One has to remember that four persons were subjected to assault and neither the assailants for the victims would have been static when the assault was going on. Therefore, it is not unlikely that some of the injured had been assaulted in the paddy field and some others in the adjoining party field.
12. P.W. 1 stated in paragraph 25 of his deposition that lathis were being weilded from both sides and he could not say if appellants Nos. 1 and 12 were also injured. The other witnesses of course have stated that Sona end his sons were unarmed. It is submitted that the evidence of P.W. 1 suggests that there was a bilateral fight between the parties. In my opinion, the appellants cannot take advantage from this statement of P.W. 1 when there is absolutely no evidence that any of the appellants had received any injury in the occurrence. If really, there had been a bilateral clash, then one or more of the appellants would also have received some injury in the same. The fact that none of the appellants had received any injury in the occurrence also seriously affects the defence set up by the appellants before the court below. It may be recalled that according to them, the prosecution party had gone to the place of occurrence to damage their paddy crop and when the appellants had protested against the same, the prosecution party had started the assault on the appellants. If really the prosecution party had been the aggressors in the occurrence, it was all the more reason to expect that one or more of the appellants would have been seriously injured in the same. As it is, as pointed out above, none of the appellants is said to have got even a scratch in the occurrence. It is also noticed that P.W. 2 stated in paragraph 17 of his evidence that appellants Nos. 4 and 6 had assaulted P.W. 3. As it is, according to the case of the prosecution, appellants Nos. 3 and 4 assaulted P.W. 3. When a large number of persons attack and assault three or four persons, some such discrepancy in evidence of wit-nesses who observed the occurrence is only natural This witness also stated In paragraph 25 of his deposition that de-ceased Sona Mahton had injuries on his head, neck, face, chest and back. It is pointed out that Sona had not received any injury on these .parts of his body and that he had received injuries on his arms and legs only. As pointed out by the learned Additional Sessions Judge, the witness might be giving an exaggerated-account of the brutality of the appellants. I feel satisfied that his evidence cannot be discredited on this ground.
13. On this question as well it was submitted on -behalf of the appellants that no independent witness had been examined by the prosecution in proof of the Recurrence. It is also pointed out that the persons who had arrived near the Barakar bridge where Sona had died, had also not been examined in this case. In my view, in the circumstances of the present case, this cannot discredit the case of the prosecution. The occurrence, it may be remembered, had taken place in the Ambadohar field, which, according to the Investigating Officer (P.W. 5) was nearly two miles away from Jogia Tola where the prosecution party live. The place of occurrence was, therefore, far away from the residential area of the village and there could not be many wit-nesses to see the occurrence. Indeed, the evidence shows that none except P.W. 1 was present near the place of occurrence at the time of the occurrence. P.W. 1 happened to be present at his land adjacent north of the Ambadohar field. To the south of this field was a jungle, towards the east was party land and towards west there was the land of the deceased himself. The persons who had arrived near the Barakar bridge could have given a hearsay account of the occurrence and, therefore, their evidence was not so important. Besides, it appears from the record of the court below that one of these persons, namely, Kheman was not prepared to depose. It was alleged that he was threatened by the accused persons. Therefore, as stated earlier, in the circumstances of the present case no adverse inference can be drawn against the case of the prosecution due to non-examination of independent witnesses in proof of the occurrence.
14. The evidence of P.Ws. 1 to 4, in my opinion, satisfactorily proved that the appellants assaulted Sona Mahton and his sons when the latter refused teheed to their protest against the repair of the ridge of the Ambadohar field. The evidence of these witnesses is specific that appellants Nos. 8 to 12 had assaulted Sona Mahton, appellants Nos. 2, 5 and 7 had assaulted P.W. 2, appellants Nos. 3 and 4 had assaulted P.W. 3 and appellants Nos. 1 and 6 had assaulted P.W. 4. Their evidence shows further that Sona Mahton died shortly after the occurrence when he was being carried on a bullock-cart to the police station. I have pointed out earlier that Dr. L. P. Ojha who had held the post-mortem examination on the dead body of the deceased and who had also examined injuries of P.Ws. 2 to 4 was not examined before the court below and the post-mortem report (Ext. 6} and the injury reports (Exts. 7 to 7/2) were proved by Doctor Kusum Prasad (P.W. 8). The learned Additional Sessions Judge while referring to the post-mortem report observed in paragraph 8 of his judgment that Doctor Ojha could not be examined as he had gone away to the United Kingdom for higher studies. Learned Counsel for the appellants has pointed out that this was an error of record committed by the learned Additional Sessions Judge, inasmuch as there was nothing on the record to show that Doctor Ojha had really gone away to the United Kingdom for higher studies when he was required to be examined in this case. On the contrary, reference is made to the order of the court below dated the 16th June, 1969, in which it was expressly recorded that the Doctor had attended the court on the previous date, but the trial was adjourned due to the absence of the Presiding Judge. The doctor was directed to attend the court on the next date i.e. on the 16th June, 1969. No petition was filed on behalf of the prosecution on the 16th June, 1969 or before that date that the doctor had gone away to the United Kingdom and was therefore not available for examination. Doctor Kusum Prasad (P.W. 8) who had proved the post-mortem report also did not state an her evidence that Doctor Ojha had gone away to the United Kingdom for higher studies. Therefore, there was no material on the record to indicate that the attendance of the doctor could not be secured for his evidence. This, it is submitted, rendered the post-mortem report and the injury reports inadmissible into evidence. The decision in the case o£ Loku Basappa Pujari v. State AIR 1960 Bom 461 : 1960 Cri LJ 1327 supports this contention, where it was held that the notes of post-mortem examination would be admissible when the Doctor holding the post-mortem was examined. If the post-mortem report is removed from consideration, then there will be some difficulty in determining the cause of the death of the deceased. So far as the injuries to the injured are concerned, the medical evidence merely corroborates the statements of the prosecution wit-nesses to the occurrence. The medical evidence of course would show the nature of the injury which sometimes may be apparent even to a layman, but so fan as the cause of death is concerned, it is primarily the medical evidence which proves it. It is true that an inference may be drawn from the fact that the victim died soon after the assault was made on him, that most probably he died as a result of the injuries sustained by him in the assault. This however, could not be enough to sustain a conviction under Section 302 of the Indian Penal Code. The Doctor could have stated that one or more injuries were such which could have resulted in the death of Son a Mahton in ordinary course. The medical evidence could also have shown that the in-juries inflicted on the victim were such which the assailants must have known that they were likely to result in the death of the victim. In absence of any such evidence, it may be difficult to hold that the assailants intended to cause the death of the victim or that they knew that death was the most likely result of the assault committed by them. It may be pertinent in this connection to refer to the inquest report (Ext. 2). In column No. 5 of the same, the Investigating Officer has noted different injuries or marks on the body of the deceased. It will be significant to notice that all the apparent injuries which were noticed by the Investigating Officer on the person of the deceased were on his arms and legs. Therefore, no injury was inflicted on him on any vital part of the body. This is all the more reason why it becomes difficult to sustain the conviction of the appellants under Section 302 read with Section 149 of the Indian Penal Code. I am inclined to think that this also affects the, prosecution case with regard to the common object of the unlawful assembly for murder. It may be pointed out that in the charges under Section 302 read with Section 149, I.P.C. as well as under Sections 147 and 148, I.P.C., the common object of the unlawful assembly was stated as follows:
To dispossess Sona Mahton and his sons from his land and to assault and murder him and his sons.
The fact that no injury was inflicted on the deceased or his sons on any vital part of their body strongly indicates that the common object of the unlawful assembly could not have been to commit murder of these persons. The common object of the unlawful assembly evidently was to dispossess them from that land and to assault them when resistance was offered in the achievement of that object. If, however, persons with such common object go to the place of occurrence armed with lathis, bhalas and tangi, they must know that grievous injury with deadly weapon was likely to be caused to the victim in the occurrence, and, therefore, in any view of the matter, they cannot escape punishment for the offence under Section 326 read with Section 149, I.P.C. In the case of Shambhu Nath Singh v. State of Bihar , it was contended before the Supreme Court that in the absence of evidence to show that grievous hurt was caused by one of the accused in prosecution of the common object, the Court was incompetent to re-cord a conviction for the offence under Section 326 read with Section 149, I.P.C. The contention was repelled by the, Supreme Court. Therefore, I feel satisfied that appellants can be held guilty under Section 326 read with Section 149, I.P.C. and not under Section 302 read with Section 149, I.P.C.
15. It was contended on behalf of the appellants that appellants Nos. 1 to 7 had admittedly not participated in the assault on the deceased and so they could not be convicted even for an offence under Section 326 read with Section 149, I.P.C. I am unable to agree with the submission. The prosecution evidence clearly proves that all the appellants had gone to the place of occurrence together armed variously with lathis, bhalas and tangi for the prosecution of the common object as stated above, and, therefore, their criminality in the occurrence could not be different from those of appellants Nos. 8 to 12. I need hardly point out that no serious exception can be taken to the conviction of the appellants under Sections 147 and 148 of the Indian Penal Code, on the evidence adduced by the prosecution in this case.
16. The appellants have also been convicted for an offence under Section 325 read with Section 149, I.P.C. In my view this offence is also made out against the appellants even if the injury reports) (Exts. 7 to 7/2) are kept out of consideration, on the same ground on which they have been found guilty for the offence under Section 326 read with Section 149 of the Indian Penal Code.
17. In the result, therefore, the convictions of the appellants under Sections 302 read with Section 149 are altered into one under Section 326 read with Section 149, I.P.C., and they are sentenced to undergo rigorous imprisonment for a period of seven years each under this Section. With this modification on the question of their conviction and sentence, the appeal is dismissed.
B.D. Singh, J.
18. I agree.