Patna High Court
Chanda Devi & Ors vs The State Of Bihar on 3 November, 2017
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
Patna High Court CR. APP (SJ) No.372 of 2015 dt.03-11-2017 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Appeal (SJ) No.372 of 2015
Arising Out of PS.Case No. -102 Year- 2000 Thana -MUFFASIL District-
WESTCHAMPARAN(BETTIAH)
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1. Chanda Devi, wife of Late Ramayan Yadav.
2. Dashrath Thakur, son of Harendra Thakur, both are resident of village-
Bharpatia, P.S.-Manuapul, District-West Champaran.
3. Tuil Yadav @ Tuil Kamkar, son of Buni Prasad, resident of village-Chargara,
P.S.-Shanichari, District-West Champaran.
4. Virendra Yadav, son of Hari Yadav, resident of Bharpatia, P.S. Manuapul,
District-West Champaran.
.... .... Appellant/s
Versus
The State of Bihar
.... .... Respondent/s
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Appearance :
For the Appellant/s : Mr. Bimlesh Kumar Pandey-Advocate
For the Respondent/s : Mr. Binod Bihari Singh-A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
ORAL JUDGMENT
Date: 03-11-2017 Appellants, Chanda Devi, Dashrath Thakur, Tuil Yadav @ Tuil Kamkar and Virendra Yadav have been found guilty for an offence punishable under Section 308 of the I.P.C. and each one has been directed to undergo R.I. for three years vide judgment of conviction and sentence dated 24.06.2015 passed by the Additional Sessions Judge-4th, West Champaran at Bettiah in Sessions Trial No.527 of 2002.
2. PW-9, Sams Tabrej while was produced at the police station in an injured condition on 26.05.2000 at about 11.00 p.m. gave his fard-bayan disclosing therein that on the same day at about 9.00 p.m. while he was going to keep watch over Litchi Garden belonging Patna High Court CR. APP (SJ) No.372 of 2015 dt.03-11-2017 2 to Sita Rajgadhia of which fruits have been purchased by his father as well as Islam Mian, as such had gone to the place of Islam Mian and after staying sometime, son of Islam Mian namely Suba Mian accompanied him. When both two reached near the house of Ramayan Yadav, Vijay Yadav, Yogi Yadav @ Yogendra Yadav, Birendra Yadav, Rajesh Yadav, Dashrath Hazam and brother-in-law (Sala) of Ramayan Yadav namely Tuil Yadav @ Tuil Kamkar pounced upon him, caught hold and dragged him to the house of Ramayan Yadav. Suba Mian escaped during midst thereof. He repeatedly asked from the accused why they caught hold him and where they are taking him away, whereupon accused persons said that just now you will get the answer. As soon as they reached at the house of Ramayan Yadav, at the instant of Yogi Yadav, all the accused persons lifted the weapons having kept at the darwaza of Ramayan Yadav and began to assault repeatedly as a result of which, he sustained injuries over his head as well as at different parts of his body. He beged to spare, but the accused persons did not pay heed to him. Accused Rajesh Yadav was saying to pierce spear. Wife of Ramayan Yadav was saying that he had assaulted her son yesterday on account of plucking of Litchi. She had further disclosed that after murder, police will be reported that as he has come to commit theft on account thereof, has been murdered. It has further been disclosed that the accused Vijay Yadav gagged his Patna High Court CR. APP (SJ) No.372 of 2015 dt.03-11-2017 3 mouth with cloth before assault, so that he could not raise alarm. Seeing the condition, the accused persons became very much perplexed whereupon opened his mouth. Thereafter, he raised alarm attracting the villagers, who rescued him and then, took him to police station.
3. After registration of the Bettiah Mufassil (Manuapul) P. S. Case No.102 of 2000, investigation commenced and concluded by way of submission of chargesheet followed with order of cognizance paving way for trial meeting with the ultimate result, the subject matter of instant appeal.
4. Defence case, as is evident from mode of cross-
examination as well as statement recorded under Section 313 of the Cr.P.C. is that of complete denial. Furthermore, there happens to be specific plea that on the alleged date and time of occurrence, the informant along with Suba Mian had made house trespass in order to commit theft and was apprehended red-handed during course of lifting box and in order to protect the property, he was assaulted and was produced before the police and for that, on the fard-bayan of appellant/ convict Chanda Devi, Bettiah Mufassil P. S. Case No.107 of 2000 has been registered. In order to substantiate the same, one DW along with the F.I.R., chargesheet of the counter-case has also been exhibited.
Patna High Court CR. APP (SJ) No.372 of 2015 dt.03-11-2017 4
5. In order to substantiate its case, prosecution had examined altogether 11 PWs, who are PW-1 Jumman Mian, PW-2 Nurul Hoda, PW-3 Hajrat Mian, PW-4 Nijamuddin Ansari, PW-5 Ibrahim Mian, PW-6 Md. Salim Sah, PW-7 Shaiyad Mian, PW-8 Sahab Jan, PW-9 Sams Tabrej, PW-10 Dr. Ramesh Chand and PW-11 Shamshad Alam Shamsi. Side by side, had also exhibited viz. Exhibit- 1 series, signature of informant as well as respective witnesses over the fard-bayan, seizure list, Exhibit-2 injury report, Exhibit-3 (Exhibit-1/3 which ought to have been Exhibit-3), Exhibit-4 seizure list relating to full-pant, full-shirt, Gamchha, Exhibit-5 seizure list, Garasi, Fasul. Side by side, defence had examined DW-1 Narayan Pandey as well as exhibited Exhibit-A chargesheet, Exhibit-B copy of fard-bayan and Exhibit-C formal F.I.R. relating to Bettiah Mufassil P. S. Case No.107 of 2000.
6. While assailing the judgment of conviction and sentence, it has been submitted on behalf of learned counsel for the appellants that learned lower Court should not have inflicted the same, when completely disbelieved the story of the prosecution. It has also been pleaded that prosecution is under burden to prove its case, and if fails, then accused is entitled for acquittal. Furthermore, it has been submitted that plea of defence even to the extent of acknowledging right of private defence will not galosh to the prosecution when Patna High Court CR. APP (SJ) No.372 of 2015 dt.03-11-2017 5 genesis of occurrence, manner of occurrence is found completely subverted. So for this particular case is concerned, when the story of dragging of PW-9 Sams Tabrej has been disbelieved, then in that circumstance, even accepting that he sustained injury, but the same was in different way as he had intruded inside house at dead of night with others in order to commit theft, apprehended red-handed while lifting box, then in such circumstance, the appellants were entitled for exercising their right of private defence to protect their property whereupon, would not have been convicted. That means to say, presence of Sams Tabrej inside the house of appellants is found duly acknowledged in terms of defence version that means to say, PW-9 house trespassed for the purpose of committing theft and he was apprehended during course of lifting of a box while other escaped and the appellant Chanda Devi, who was sleeping with others over roof of the house, hearing sound of rattling awoke, came down, found the thieves, so in order to protect her property, inflicted garasa blow. It was dead of night, presence of injured along with others was by means of surprise, for committing theft and so, she was in a position to defend her property and for that, she inflicted garasa blow which at the relevant juncture, would not be expected to be under the garb of golden scale and further, considering the subsequent conduct whereunder informant was produced by them before the police Patna High Court CR. APP (SJ) No.372 of 2015 dt.03-11-2017 6 officials at the Police Station, is another circumstance to suggest that neither the appellants indulged in any kind of activity detrimental to their interest by way of scaling the golden scale, so prescribed while exercising the right of private defence. So, taking into account the cumulative effect, the conviction and sentence recorded against the appellants under Section 308 of the I.P.C. did not justify its recording.
7. Furthermore, though all the remaining witnesses have been disbelieved by the by the learned lower Court, but even considering their presence, their unusual conduct lent support to the defence case. From their evidence, it is evident that Police Station was only 20 yards away from the house of Ramayan Yadav and had there been presence of those witnesses, at least even one of them would have taken recourse to inform the police in order to rescue the informant from the clutches of the appellants and others as well as would have strengthened the prosecution version.
8. Not only this, it has also been pleaded that prosecution party were going to keep watch over Litchi fruit, then in that event, at least, they should have possessed the torch, danda. Furthermore, it has also been submitted that brother of informant Shaiyad Mian (PW-7) had stated that he was present at the orchard while PW-3, the father had stated that he was in a way to orchard, but their presence had not been shown by the informant Sams Tarbej nor Patna High Court CR. APP (SJ) No.372 of 2015 dt.03-11-2017 7 there was any occasion for him to go there. This fact is not at all gets support, as neither Lodhi, nor his father Islam came in witness box. Apart from this, the I.O. had not visited the aforesaid place nor Sita Rajgadhia had come forward to say that Litchi Orchard was taken by PW-3 Hajrat Mian along with Islam Mian. Therefore, there was no occasion for the informant or the PW-3 or the PW-7 to remain or to go to the place of Litchi Orchard that means to say, the genesis of occurrence that for the purpose of keeping watch over Litchi fruit, they were going one after another as well as feasibility of son of appellant Chanda was scolded for plucking of the lichi fruit.
9. It has also been submitted that another probability demolishing the prosecution version is itself apparent when informant was apprehended near the house of Ramayan Yadav, at that very moment, his mouth was not gagged. Had there been such kind of activity, he would have been apprehensive on account of previous incident whereunder he had assaulted son of Ramayan Yadav, then would have raised alarm in order to protect himself. Non-raising of alarm instead of asking for where he was being taken away, is another circumstance, which cast doubt over the manner of the occurrence. Apart from this, none of the witnesses had stated that they have gone along with source of light nor there happens to be disclosure at the end of the informant that there was lightening at the house of Patna High Court CR. APP (SJ) No.372 of 2015 dt.03-11-2017 8 Ramayan Yadav, then in that event, seeing the spear, lathi, farsa at the darwaza would not have been possible that too, when informant had stated in his fard-bayan that he was taken inside the house while those weapons were kept at darwaza by which he was assaulted.
10. In the background of aforesaid infirmities and further, having the evidences disbelieved by the learned lower Court coupled with the fact that presence of informant inside the house of the appellants have been admitted, accepted and observed by the learned lower Court to be that of being thief whereupon, the activity of the appellants would not have warranted conviction and sentence under Section 308 of the I.P.C. in the background of the fact that a) as per counter-case Chanda Devi herself claimed to be sole assailant of the informant b) there happens to be no evidence on the record whereupon one could infer that Chanda Devi had scaled the golden scale prescribed for exercising the right of private defence c) the prosecution had admitted presence of informant inside the house of Ramayan Yadav.
11. It has also been submitted that there happens to be bounded duty of the prosecution to prove its case beyond all reasonable doubts. If the prosecution suffers from any kind of defect on that very score, questioning its reliability, then in that event, the acceptance of defence version would not be in order to record Patna High Court CR. APP (SJ) No.372 of 2015 dt.03-11-2017 9 conviction and sentence, more particularly, excluding Chanda Devi, who have not been shown as assailant of the victim/ informant and on that very score, the learned lower Court should have given the same benefit to the appellants Dashrath Thakur, Tuil Yadav @ Tuil Kamkar and Virendra Yadav like other co-accused namely Vijay Yadav, Yogi Yadav @ Yogendra Yadav and Rajesh Yadav (since acquitted), so far Chanda Devi is concerned, in the facts and circumstances of the case, even having recording conviction in terms of Section 308 of the I.P.C. should have been given benefit of Probation of Offenders Act in the facts and circumstances of the case. The learned counsel for the appellants also referred A.I.R. 1979 SC 1114, 1975 CRI.L.J. (2) 1865, 2007 CRI.L.J. (2) 2291.
12. On the other hand, learned Additional Public Prosecutor counter-meeting with the submission having made on behalf of the appellants has submitted that the finding recorded by the learned lower Court happens to be just, legal and proper as the same has been passed after taking into account the materials available on the record. Furthermore, it has also been submitted that presence of informant at the house of Ramayan Yadav is an admitted fact of the case. It has further been submitted that assault over the person of informant is also an admission at the end of the appellants and for that, there happens to be version and counter-version. From the Patna High Court CR. APP (SJ) No.372 of 2015 dt.03-11-2017 10 judgment impugned, it is evident that learned lower Court had disbelieved the prosecution version, then in that event, while scrutinizing the materials available on the record, more particularly, the F.I.R. having at the end of appellant Chanda Devi, it is apparent that there happens to be no resistance at the end of informant Sams Tabrej nor was aimed whereupon one could found apprehensive at his life. Mere lifting of box without giving any kind of protest or resistance, the incident of assault in a manner as placed, would have been averted. More particularly, by calling the other family members, who were sleeping over the roof, having their presence whereupon the informant might have been apprehended by exercising minimum physical force. In likewise manner, the police station having at a distance of 20 meters would have given ample opportunity for glaring information by her family members to the police even while indulging in grapling with victim. The public authority was not at all informed rather after brutal assault by means of sharp cutting weapon even at the delicate part of body, is a circumstance which has been taken into consideration by the learned lower Court and on that very score, appellants have rightly been convicted and sentenced, which did not require interference. Consequent thereupon, the judgment of conviction and sentence recorded by the learned lower Court happens to be fit for confirmation.
Patna High Court CR. APP (SJ) No.372 of 2015 dt.03-11-2017 11
13. From perusal of the judgment impugned, it is apparent that it has rightly been observed by the learned lower Court that the genesis as well as manner of occurrence as suggested by the prosecution happens to be unreliable. Therefore, manner whereunder occurrence is alleged to have taken place became doubtful. However, from the evidence of PW-10 (repeatedly numbered) doctor, it is evident that informant had sustained following injuries over his person:-
1) Incised wound on the back of scalp at three places about 1" x 1 ½" x ½" long.
2) Incised wound on the top of scalp 4" x ¼" skin deep.
3) Incised wound on dorsum of right hand 4" x ½" x skin deep.
4. Incised wound lower end of right forearm at three places at a distance of 2" and 4", 1" x ¼", ½" x ¼" and 1/3" x ¼" skin deep.
5) Incised wound on the right shoulder ¼" x parietal skin deep.
Caused by sharp cut weapon out of injury no.2 is found grievous in nature. During course of cross-examination, his evidence has not been demolished. So, injury over the person of informant is found duly substantiated. Moreover, the appellants do concede.
14. Had there been silence at the end of the appellants, Patna High Court CR. APP (SJ) No.372 of 2015 dt.03-11-2017 12 then in that event, the matter would have been dealt with in different manner. Injury has been admitted by way of proving Exhibit-B as well as suggestion has been given to the witnesses for the same as during course of commission of theft while informant was lifting box, was seen by Chanda Devi, whereupon she inflicted garasa blow. When the aforesaid garasa broken down then she lifted fasul and repeatedly given stroke over the informant. Although there happens to be complete absence in the fard-bayan that victim had resisted or threatened to life. On the other hand, there happens to be specific disclosure in the Exhibit-B, fard-bayan launched by appellant Chanda Devi "HULLA SUNKAR GAON KE LOG DAURE AUR MAIN USPAR WAR KARTI RAHI AUR USE KATTE KATTE GHAR KE BAHAR BARAMDA ME CHAUKI KE PAS LE AAYEE AUR CHAUKI PAR CHADHKAR USKO GARASI SE KATNE LAGI. GARASI TUT JANE PAR FIR MAIN FASUL UTHAI AUR FASUL SE KATNE LAGI. GAON KE LOG JUTE AUR USE FASUL SE KATNE SE BACHAI AUR MUJHSE FASUL CHHIN LIYE" and this part of activity having taken at the end of appellant Chanda Devi explicit crossing the barrier.
15. Section 96 of the I.P.C. falling under heading 'General Exception' gives protection to an accused done in exercise of right of private defence. Section 97 I.P.C. acknowledges right of private defence available to the extent of body as well as property. Section 103 I.P.C. prescribes the contingent whereunder during course Patna High Court CR. APP (SJ) No.372 of 2015 dt.03-11-2017 13 of exercise of right of private defence to protect property, it could be available to the extent of causing death. For better appreciation, Section 103 of the I.P.C. is quoted below:-
"103. When the right of private defence of property extends to causing death.- The right of private defence of property extends, under the restrictions mentioned in section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which, or the attempting to commit which, occasions the exercise of the right, be an offence of any of the descriptions hereinafter enumerated, namely:-
First.- Robbery;
Secondly.- House-breaking by night;
Thirdly.- Mischief by fire committed on any building, tent or vessel, which building, ten or vessel is used as a human dwelling, or as a place for the custody of property; Fourthly.- Theft, mischief, or house-trespass, under such circumstances as may reasonably cause apprehension that death or grievance hurt will be the consequence, if such right of private defence is not exercised."
16. No DW has been examined in order to defend the mode of happenings. No suggestion has been given to the witnesses, including PW-9 that he was armed with deadly weapon endangering the life of appellant while defending/ protecting her property. From bare perusal of Exhibit-B, the fard-bayan of counter-case, it is evident Patna High Court CR. APP (SJ) No.372 of 2015 dt.03-11-2017 14 that neither PW-9 was armed nor he shown any kind of resistance including threatening to the extent of endangering life and property. On the other hand, from the relevant passage of fard-bayan, it is apparent that action having followed by appellant Chanda Devi had crossed all level, so prescribed under the Act. However, so far appellants Dashrath Thakur, Tuil Yadav @ Tuil Kamkar, Virendra Yadav are concerned, they are found entitled for same consideration as treated by the learned lower Court relating to other acquitted accused. Hence, this appeal relating to the appellants Dashrath Thakur, Tuil Yadav @ Tuil Kamkar and Virendra Yadav are set aside. Appeal is allowed. They are on bail, hence are discharged from its liability.
17. So far appellant Chanda Devi is concerned, this appeal relating to her is dismissed. Her bail bond is hereby cancelled directing her to surrender before the learned lower Court within four weeks to serve out the remaining part of sentence, failing which, the learned lower Court will be at liberty to proceed against her in accordance with law.
(Aditya Kumar Trivedi, J) Vikash/-
AFR/NAFR A.F.R. CAV DATE N.A. Uploading Date 14.11.2017 Transmission 14.11.2017 Date