Jharkhand High Court
Prahlad Mahto And Ors. vs State Of Bihar (Now Jharkhand) on 10 March, 2006
Equivalent citations: [2006(2)JCR297(JHR)]
Author: N.N. Tiwari
Bench: S.J. Mukhopadhaya, Narendra Nath Tiwari
JUDGMENT N.N. Tiwari, J.
1. This appeal is against the judgment of conviction and order of sentences passed in Sessions Case No. 40/1986/24/1987 whereby all the appellants have been convicted under Sections 147/148/149/342/379/302/34 IPC and sentenced to undergo RI for life under Sections 302/34 IPC, RI for 2 years under Section 147 IPC, RI for one year under Section 342 IPC and RI for three years under Section 379 IPC. All the appellants except the appellant No. 7 have further sentenced to undergo RI for one year under Section 323 IPC, RI for three years under Section 325 IPC. The appellant No. 3 has been further sentenced to undergo RI for three years under Section 148 IPC and RI for five years under Section 325 IPC. The appellant No. 5 has been further sentenced to undergo RI for three years under Section 411 IPC. All the sentences were ordered to run concurrently.
2. The prosecution case in brief is that on 14.11.1985 at about 12.30 p.m. while the informant Harihar Das PW 7 and his relative Jalim Mahara (deceased) were harvesting paddy crops in their field all the appellants armed with weapons came over there and asked as to why they were harvesting the paddy crops, The informant replied that the land belonged to him and he had cultivated the paddy crops and thus he has right to harvest the paddy crops. Thereupon the appellant No. 6 ordered the other appellants to finish the informant. On the said command the appellant No. 3 hurled a bhala blow on the head of the informant. The appellant Nos. 1 and 2 also assaulted the informant with iron rot and lathi (stick) respectively. When Jalim Mahara came to rescue the informant, he was also assaulted by the appellant No. 1 with iron rod. The appellant Nos. 2, 4, 5 and 6 assaulted Jalim Mahara with lathi (stick) and appellant No. 3 gave bhala (spear) blow on his head. Jalim Mahara was seriously injured and became unconscious. The alleged occurrence was witnessed by several persons. Both the injured persons were taken to the police station, but in the way Jalim Mahara succumbed to the serious injures sustained by him.
3. An FIR was lodged. After investigation a charge-sheet was submitted by the police. The case was then committed to the Court of Session and all the appellants were charged under Sections 147/148/149/302/34/342/379 IPC. All the appellants, except Safu Mahato (appellant No. 6) were charged under Section 323/325 IPC. Naresh Mahato and Prahalad Mahato (appellant Nos. 3 and 1) were charged under Section 324 IPC Basudeo Mahato was charged under Section 411 IPC. The appellants denied the charges and were put on trial.
4. The defence of the appellants is the total denial of the alleged occurrence. According to the appellants, they were falsely implicated in this case on account of longstanding land disputed between the appellants, family and the 'Maharas' (informant's party).
5. The prosecution examined 10 witnesses to substantiate the charges levelled against the appellants. Several documents were also exhibited on behalf of the prosecution. On the other hand," the defence also adduced evidences. The cause of the alleged occurrence was the land dispute. Both the parties were claiming their right and title over the PO land. After through discussion and appraisal of oral as well as the documentary evidences, the learned trial Court found that the prosecution has been able to prove the charges against the appellants' beyond all reasonable doubts that after making unlawful assembly armed with deadly weapons, the appellants committed murder of Jalim Mahara, grievously injured the informant and committed theft of paddy crops of the informant which was found in possession of the appellant No. 5 Basudeo Mahato. All the appellants were thus convicted and sentenced as first above mentioned.
6. In this appeal the appellants sought to assail their conviction and sentence on the following grounds:
(i) All the prosecution witnesses except the doctors PWs-8 and 9 and I.O. PW 10 are closely related to the informant's family and are partisan witnesses and their evidences are not trustworthy.
(i-a) The PO is the land which was in the possession of the appellants and as such they cannot be treated as aggressor and the appellants had got right to private defence and as such they cannot be held guilty of the alleged offence.
(ii) There are several contradictions in the version of the prosecution witnesses.
(iii) The contradictions appearing from the statements made by PWs-1, 2, 3, and 7 go to suggest that the PWs-1, 2, 3 were not the eye-witnesses of the alleged occurrence, yet the learned trial Court has relied on their evidences treating them as eye-witnesses.
(iv) The appellants are the members of one family and that they have been falsely implicated in this case due to long-standing dispute of title and possession of the land of one Mohar Mahara who died issueless.
(v) Learned trial Court failed to appreciate that about 100-125 persons of 'Maharas' community assembled at the PO which clearly goes to establish that the prosecution side was the aggressor.
(vi) In view of the contradictions, learned trial Court should have held that the prosecution failed to establish the identity of the PO as according to the informant's version the alleged assault took place in the field in which he was harvesting, but PW 10 in paragraphs 4 and 8 of his deposition has contradicted the same stating that the alleged assault took place on the 'Tanr' land. Blood stain was also found on the 'Tanr' land and not in the paddy field.
(vii) The medical evidence is contradictory to the ocular evidences.
(viii) The prosecution also failed to prove the manner of assaults. According to the so called eye-witnesses, the appellant had given bhala blow on the head of the appellant No. 3, but PW 9 the Doctor has not found any penetrating or piercing Injury on the head. The doctor has found only one piercing wound on the left frontal area of the head of the deceased.
7. Mr. J.P. Jha, learned senior counsel appearing on behalf of the appellants, submitted that the prosecution has failed to establish the charges against the appellants' beyond all reasonable doubts and their conviction and sentences are bad and unsustainable.
8. In order to appreciate the said grounds of the appellants we carefully scrutinized the evidences on record. PW 1, PW 2 and PW 3 are the eye-witnesses. PW 1 Radhey Das in paragraph 1 of his evidence stated that he had seen the alleged occurrence and has narrated and supported the prosecution case. PW 2 Kisan Mahara in paragraphs 1 and 2 and PW 3 Nanu Mahara in paragraphs 1 and 3 of his deposition have also supported the prosecution case who had also witnessed the occurrence. The said eye-witnesses were cross-examined at length, but except minor contradictions, there is nothing vital to discredit their testimony. PW 7 Harihar Das, who is the informant, has also vividly supported the prosecution case. This witness has also clearly deposed in paragraph 5 read with paragraph 9 of his deposition that his grandfather Newaji Mahara was one of the recorded tenants and on partition, the land (PO) was cultivated by him along with Jalim Mahara who was an 'Adhbataidar. On cross-examination, in paragraphs 11, 12, 13, 14 and 15 of his deposition he has fully described the alleged occurrence and has also testified his statement made in examination-in-chief. There is no vital contradiction and there is no reason to disbelieve his testimony. PW 8 Dr. Narendra Narayan Das proved the post-mortem report and the injuries found by him on autopsy of the deceased. He found piercing wound over left frontal area of head 0.75" diameter x brain deep wound. He also found Injuries on right arm, left thigh and back of trunk. He further found cranial cavity fractured and pool of blood. He opined that the piercing injury was caused with bhala (spear) and other injuries with iron rod. PW 9 Dr. Shanti Kr. Banerjee had examined the injured Harihar Das and his injury report has been proved as Ext. 4. He found lacerated wound on the back of the right ear, one lacerated wound horizontally situated on the vertex region of the scalp and also injuries on the back, lower chest and scattered bruise marks on the front and back of the body. The injuries were found grievous in nature. In paragraph 4 of his deposition he has stated that he examined the injured on 14.11.1985, after receiving the police requisition and noted down the same. However, he prepared the injury report on 10.12.1985 when the patient was discharged. Learned Counsel for the appellants emphatically challenged the injury report, Ext 3 on the ground that the same was prepared much after the date of the alleged occurrence dated 14.11.1985, but the PW 9 has clearly deposed that he had examined the injured on 14.11.1985, but had given the injury report on 10.12.1985 when the patient was discharged from the hospital. PW 10 is the IO who in his deposition has also proved the requisition for treatment of Harihar Das, Ext. 4. He has proved the inquest report of the dead body of Jalim Mahara as Ext. 5. He has stated in paragraph 4 of his deposition that the PO is the land of the informant from which the paddy crops were harvested and at a distance of about 100 yards western side of that place he found' stain of huge blood shed. He seized 73 bundles of harvested paddy crops from the alleged PO of the appellants and seizure list (Ext. 6) was prepared in presence of two independent witnesses. He has clarified in paragraph 8 of his cross-examination that the PO was the harvested paddy field and the adjoining area where the parties clashed.
9. Learned trial Court has thoroughly appeased all the evidences and has come to the conclusion that the prosecution has been able to bring home the charges levelled against the appellants. On through scrutiny of the evidences of the prosecution, both oral and documentary, we find no reason to disagree with the findings of the trial Court. Though some contradictions were pointed out by learned Counsel for the appellants, the same are minor and there is no reason to discard their testimonies. The informant's version has been fully corroborated by the eye-witnesses PWs. 1, 2 and 3 and the medical evidences. The IO has also properly proved the PO and has also found that the paddy crops were removed from the field of the informant (PO) and the PO land was also found entered in the record of right in the name of the grand father of the informant along with other co-sharer. The informant PW 7 has proved that the PO land was allotted to his share on partition and he had cultivated that land and was harvesting his crops. In view of the above, learned trial Court has rightly found the appellants as aggressors.
10. The defence led evidences to prove that the PO land was their land out of the documentary evidences; Exts. A series are the rent receipts, Ext. B is the memo of appeal in R. Misc. Case No. 45/85, Ext. C is the original petition in R.E. Case No. 66/71, Ext. D is the certified copy of the plaint in the Title Suit No. 86/51, Ext. E is the certified copy of the order sheet in Execution Case No. 13/62, Exts. F and F/A are the certified copies of the order sheet in Title Appeal No. 55/61 and Title Suit No. 79-A/60, Ext. G is the certified copy of the decree in Title Appeal No. 79-A/61, Ext. H is the certified copy of notice under Section 144, Cr PC in Case No. 114/54, Ext. I is the certified copy of parcha, Ext. J is the map of Mouza Kurmdih, Ext. F is the certified copy of order sheet in Execution Case No. 113/62. On perusal of the said documents, it appears that the Exts. A series are the rent receipts in the name of Mohar Mohara, Ext. B is the certified copy of the petition, Ext. C is the petition filed by one Ghaso Mahara for restoration of land in his favour. Ext. D shows that the daughter of Mohar Mahara filed the suit for declaration and recovery of possession which was dismissed as withdrawn and then Title Suit No. 79/60 was filed by the ancestors of the appellants in respect of the land of Mohar Mahara which was decided in their favour ex. prate (Ext. F/A) and the decree thereof is Ext. G. An appeal was preferred against the said decree which was dismissed as time barred (Ext. F). Ext. A is the certified copy of the writ of delivery of possession and Ext. F/E is the certified copy of the order sheet showing the return of the writ after delivery of possession. Ext. F/B is the certified copy of the order sheet in RE Case No. 66/71 filed by one Ghaso Mahara who claimed himself as an heir of Mohar. Mahra which was ultimately dismissed. Ext. F/C is the order passed in the proceeding under Section 144, Cr PC Ext. H is the notice for the said case. All these documents were field to prove that the land of the share of Mohar Mahara was in their possession. From the said documents it appears that there was litigation over the land of Mohar Mahara who died issueless. But the informant PW 7 has clearly stated that he has got no interest in the land of Mohar Mahara. According to the appellants the PO was the land of the share of Mohar Mahara whereas the PWs and the IO have stated that the PO is the land belonging to Harihar Das. Thus the said documentary evidences have no relevance as the same were related to a different land which was not the place of occurrence. The appellants thus failed to establish their plea of right to private defence whereas the charges against them have been well proved by the prosecution.
11. Doctor PW 8 has opined that the death of Zalim Mahara was caused due to haemorrhage on account of head and brain injuries and also due to compound and multiple fractures on the limbs of the deceased. Multiple injuries were also found on the person of Harihar Das as is evident from the injury report, Ext. 3 proved by the Doctor (PW 9). The prosecution version thus stand corroborated and well established also by the said evidences. We are thus in agreement with the trial Court in holding that the prosecution has been able to bring home the charges levelled against the appellants beyond all reasonable doubts.
12. Learned Counsel for the appellants urged that in the circumstances of the case, it must be held that the appellants, action was for protection of their legal right I exercise of the right of private defecne and there conviction and sentences are not justified. He heavily relied on a decision of the Supreme Court in the case of Vajrapu Sambayya Naidu and Ors., v. State of A.p. and Ors. reported in AIR 2003 SC (3) 3706 : 2004 (1) JCJR 5 (SC), wherein it has been held that the Court must identify and punish those who had exceeded the right of private defence and that Sections 34/149 IPC are not applicable in the case of the persons exercising their right of private defence. After going through the said decision, we find that the same was rendered on different facts and circumstances. In that case the Apex Court has held that to take advantage of that exception there must be exercise of right to private defence of property, but without causing death. It was further held in that case that it was not possible to record a definite finding that the appellants had exceeded the right to private defence and as such benefit of doubt was given to the appellants. It was further held in that case that the materials on record established the physical possession of the accused persons over the land in question, whereas in the instant case the accused-appellants could not be able to prove their right of physical possession over the PO in question. The appellants brought some documents to show that the land of Mohar Mahara was subsequently acquired by them and they were in possession of the said land, but the informant PW 7 in paragraph 7 of his deposition has clearly stated that he has got no interest and concern with the land of Mohar Mahara and the said land was not the PO. There is thus no evidence to establish that the appellants were in possession of the land in question (the PO) and as such the decision in Vajrapu Sambayya Naidu (supra) has got no application in the instant case.
13. Learned Counsel next contended that the appellants conviction and sentence can not be sustained on the testimony of the partisan witnesses. He relied on a decision of the then Patna High Court, Ranchi Bench, rendered in the case of Pati Munda and Ors. v. The State reported in 1985 BBCJ 765. He urged that there is no independent witness in this case and all the eye-witnesses are related to one another and their testimony is not free from doubts and is not reliable.
14. We examined and found find that the said decision has also got no application in the facts and circumstances of the instant case as the testimony of the said witnesses PWs 1, 2, 3 and the informant PW 7 is also corroborated by other evidences including the medical evidences and documentary evidences. It is well settled that the testimony of even interested witnesses can not be discarded if such evidence is cogent and independently corroborated. Reference may be made to the decisions of the Supreme Court , Chandra Mohan Tiwari and another v. The State of M.P. and , Hari Obula Reddi and Ors. v. The State of A.P.. Learned trial Court has meticulously examined and scrutinized the evidences of the said PWs. 1, 2, 3, and 7 which are corroborated by other evidences on record. We also appraised the evidences on record and found that the PWs. 1, 2, and 3 were present and hey witnessed the occurrence and there is nothing in cross-examination to discredit or disbelieve their statements. Corroborative injuries were found by the Doctor on autopsy of the body of the deceased. The appellants failed to establish their plea of right of private defence. The evidences of the PWs are consistent and free from suspicion and well corroborated by the other evidences. We thus find no convincing ground to interfere with the impugned judgment of conviction and order of sentence passed by the learned trial Court.
15. For the reasons aforesaid, we find no merit in this appeal which is, accordingly, dismissed. As all the appellants are on bail, their bail bonds are cancelled and they are directed to surrender before the Court below to serve their sentences, failing which the Court below shall take steps to commit the appellants to prison.