Jharkhand High Court
Placidivs Ekka vs State Of Bihar on 10 October, 2002
Equivalent citations: [2003(1)JCR384(JHR)], 2003 CRI LJ (NOC) 260, 2003 AIR - JHAR. H. C. R. 1253, (2003) 1 JLJR 59, (2003) 1 JCR 384 (JHA)
Author: Vishnudeo Narayan
Bench: Vishnudeo Narayan, Lakshman Uraon
JUDGMENT Vishnudeo Narayan, J.
1. This appeal has been preferred by the sole appellant named above against the judgment dated 23.12.1989 passed in St. No. 491/87 (G.R. 243/87) by Shri Samsher Bahadur Singh, 1st Additional District and Sessions Judge, Gumla whereby and whereunder the appellant was found guilty for the offence under Section 302, IPC and he was convicted and sentenced to undergo R.I. for life.
2. The prosecution case has arisen on the basis of FIR (Ext. 2) of PW 1 Pulikar Kujur, the informant, lodged before the Chainpur P.S. on 6.5.1987 at 9.30 hours regarding the occurrence which is said to have taken place on that very day at 7.00 hours in the field at Gandhar Ghaura in village Tintangar Patratoli, P.S. Chainpur District Gumla and the signature of the informant thereon is Ext. 1.
3. The prosecution case in brief is that PW 1 Pulikar Kujur, the informant, along with PW 6 Albert Kujur, PW 7, Fuljens Kujur, PW 4 Karlus Toppo, PW 2 Helarius Kerketta, PW 5 Silbester Kerketta was ploughing the field of Simon Toppo (the deceased of this case) at about 7.00 hours on 6.5.1987 at Gandhar. Chaura in village Tintangar Patrotoli. Simon Toppo, aforesaid, the owner of the land was also ploughing the said field. The appellant came there armed with Tangi and he caught the plough of Simon Toppo and abused him and asked him as to why he is ploughing the land and gave a blow from the back portion of tangi on his waist as a result of which Simon Toppo fell on the ground and, thereafter, the appellant gave a blow by tangi on his neck causing injury thereon and, thereafter, he further gave three of four blows from tangi at his temple and on both of his arms using cableeding injuries. It is alleged that the aforesaid per-
sons ran to rescue him but the appellant abused them and intimidated them to be assaulted by tangi, if they come there. It is also alleged that the appellant, thereafter, fled away on the alarms raised by the aforesaid persons. It is also alleged that the aforesaid persons along with the persons working in the near by fields have witnessed the occurrence. Simon Toppo aforesaid died of the injuries at the very place of occurrence. It is also alleged that there is a case subjudice in the Court between Simon Toppo, the deceased of this case on one hand and the appellant and his family members on the other hand.
4. The appellant has pleaded not guilty to the charge levelled against him and he claims himself to be innocent and to have committed no offence and that he has been falsely implicated in this case due to enmity which is existing and alive between him on the one hand and the deceased of this case on the other hand.
5. The prosecution has in all examined eleven witnesses to substantiate the charge levelled against the appellant. PW 1, the informant along with PWs 2, 4, 5 and 6 besides PW 3 Doblus Tirki are said to be the eye-witness of the occurrence in question ploughing the field of the deceased of the case at the time of occurrence. PW 7 Fuljens Kujur said to be ploughing the land of the deceased at the relevant time has been tendered. PW 9 Dr. Hemant Kumar has conducted the post-mortem examination on the dead-body of Simon Toppo, the deceased of this case and the post- mortem report is Ext. 3 in this case. PW 10, Narendra Tiwari is the I.O. of this case who has proved the inquest report (Ext. 4). FIR (Ext. 2) has been proved by a formal witness PW 8, PW 1, a formal witness has proved the deed of adoption (Ext. 5) dated 26.2.1975 executed by Katrina Orain, daughter of Kujur Uraon, the recorded tenant of the land in question and the wife of Francis Uraon in favour of Simon Toppo, the deceased of this case where the deceased is said to have been adopted by her as her son as well as the rent receipt (Ext. 6 series) either in the name of Francis Uraon or his wife Katrina Urain and sale deed dated 2.9.1944 (Ext. 7) executed by Bandhani Urain in favour of Francis Uraon, the husband of Katrina Orain. DW 1 and DW 2 have proved the rent receipt (Ext. A series) and Ext. B the will dated 25.10.1935 said to have been executed by Badru Uraon son of Bandhu Uraon in favour of Johan Uraon Ext. C and Ext. D are the certified copies of SAR No. 191/78-79/TR No. 6/78 between Katrina Orain and Rafail Oraon and others and Mutation Case No. 1/76-77 filed by Simon Toppo (the deceased of this case).
6. In view of the evidence oral and documentary on the record, the learned Court below finding the right of private defence of property having been exceeded though not taken specifically but emerging from the materials on the record found the appellant guilty for the offence under Section 302, IPC and convicted and sentenced him as stated above.
7. Assailing the impugned judgment, it has been submitted by the learned counsel of the appellant that there is long standing enmity between the appellant on the one hand and the deceased on the other hand and they were on litigating terms in respect of the land in question and the said enmity was existing and alive between the parties and the deceased had no right, title and possession over the land in question and the deceased had no right to plough the said land and the deceased was a trespasser and in the exercise of the right of private defence of property the appellant had objected to the deceased in ploughing the land in question. It has also been submitted that Badru Uraon had already executed a will on 25.10.1935 (Ext. B) in favour of Johan Uraon, the father of the appellant regarding the aforesaid land and the appellant was in the cultivating possession of the said land and thus the deceased was an aggressor unlawfully ploughing the land aforesaid and as such the occurrence is the result of the exercise of the right of private defence of property by the appellant and the learned Court below did not consider the action of the appellant coming under the purview of Sections 96 to 100 of the IPC and has erred in coming to the finding of the guilt of the appellant. It has also been contended that as per law prevalent in the Uraon Tribe, a daughter has no right of inheritance. It has further been contended that admittedly the entire village stands divided in two groups and all the alleged eye-witnesses are of one group belonging to the deceased whereas the appellant belongs to the other group and as such all the alleged eye-witnesses are highly interested and partisan witnesses. It has been submitted further that the sentence awarded to the appellant is very severe in the facts and circumstances of this case. Lastly it has been submitted that the learned Court below did not meticulously consider the evidence on the record in proper perspective and has erred in coming to the finding of guilt of the appellant and the impugned judgment is unsustainable.
8. The learned APP has submitted that the evidence on the record establishes the fact that the land aforesaid was owned and possessed by the deceased and he was in cultivating possession of the said land as rightful owner being the adopted son of Francis Uraon and his wife Katrina Orain as per deed of adoption (Ext. 5) and the appellant has committed the murder of the deceased with the sole intention to dispossess the deceased from the said land and in the facts and circumstances of the case, the deceased has no right of private defence of property. The brutal murder of the deceased clearly suggests that the appellant had intentionally with premeditation has committed the murder of the deceased.
9. Before I scan and scrutinize the evidence on the record it is pertinent to mention the following facts emerging as per evidence on the record :--
One Bandhu Uraon has two sons, namely, Badru Uraon and Budhu Uraon. The said Badru Uraon is the recorded tenant in the survey khatian and he had a son Tulian Uraon who has predeceased him living behind a daughter only named Katrina Orain and she was married with Francis Uraon. The said Francis Uraon died issue-less 6 or 7 years prior to the occurrence living behind his widow Katrina Orain. Illyas Topo is the full brother of Francis aforesaid. Simon Topo is the natural born son of Illyas Topo aforesaid and after the death of Francis, Katrina Orain had adopted Simon Topo, the deceased of this case and she has also executed a registered deed of adoption (Ext. 5) dated 26.2.1975 evidencing the adoption of Simon Topo by her and after the death of Katrina Orain, Simon Topo was in cultivating possession of the land left by Francis and Katrina aforesaid. Some land has also been acquired by purchase by virtue of the sale-deed dated 2.9.1944 (Ext. 7) by Francis. The rent was paid by Francis and, thereafter, Katrina and rent receipts were granted by the State in their names and even after their death the rent was continued to be paid by the deceased but the rent receipts were granted in the name of Katrina aforesaid.
10. The said Budhu Uraon had four sons, namely, Karlus Uraon, Johan Uraon, Joseph Uraon and Patras Uraon as per Ext. B. Johan Uraon aforesaid had two sons, namely, Rafail Uraon and Julias Uraon. The appellant is the son of Rafail Uraon aforesaid. Ext. B, the will dated 25.10.1935 is said to have been executed by Badru Oraon aforesaid in favour of Johan Uraon aforesaid and other sons of Budhu Uraon. There is nothing on the record to show that the said Will (Ext. B) has been probated in favour of legatee. Therefore, the Will (Ext. B) unless probated has no legal bearing and effect regarding the properties covered thereunder. The learned Court below in para 13 of the impugned judgment has wrongly construed the document dated 25.10.1935 (Ext. B) as gift whereas the said Ext. B is a Will.
11. PW 9, Dr. Hemant Kumar has deposed to have conducted the post-mortem examination of the dead-body of the deceased on 7.5.1987 at 8.00 a.m. and has deposed to have found the following ante mortem injuries on his dead body :--
(i) Incised wound size 6" x 2" x 2" on occipital region of the head with fracture of under lying bone, brain matter congested, blood clots were present.
(ii) Incised wound 6" x 2" x 2" on the back of the neck.
(iii) Incised wound 3" x 2" x 2" on the left side of the neck.
(iv) Incised wound 6" x 2" x 2" on right temporal region with cutting of right ear, with fracture of under lying bone, brain matter congested.
(v) Incised wound right side of occipital region of the head 6" x 2" x 2" with fracture of under laying bone.
(vi) Incised wound 3" x 2" x 2" on left madibular region of face with fracture of under lying mandible bone.
(vii) Incised wound 3" x 2" x 1/2" on the right side of the neck.
(viii) Incised wound 3" x 1" x 3/4" on the right arm.
(ix) Incised wound 3" x 2 1/2" x 1" on the left arm.
He has further deposed that all the aforesaid injuries were caused by sharp cutting weapon like Tangi and injury No. (ii), (iii) (vii) and (ix) were simple in nature and rest grievous in nature. The medical witness has further deposed that injury No. (i), (iv) and (v) were sufficient in the ordinary course of nature to cause death either singly or jointly. According to him, the time elapsed since death in within two days nearby. Ext. 3, the post-mortem examination report corroborates the testimony of the medical witness. The medical witness has also deposed that the aforesaid injuries are possible by nine blows. The Inquest Report (Ext. 4) prepared by PW 10, the I.O. at the place of occurrence on the date of the occurrence at 11.30 hours also reveals the incised wounds as found by the medical witness in course of conducting post-mortem on the dead-body of the deceased.
12. It will admit of no doubt that the occurrence has taken place at 7.00 hours in a field in Gandhar Chaura in village Tintangar Patratoli and Simon Topo, the deceased of the case was assaulted in that field by Tangi and his dead-body was found fallen in the said field where the Inquest Report was prepared by PW 10, the I.O. The I.O. in para 4 of his evidence has deposed to have found blood stains at the place of occurrence and the blood stained earth was seized and seizure list thereof was prepared in presence of the witness. The I.O. has also deposed to have recorded the FIR of the informant regarding the occurrence which is Ext. 2 in this case and said FIR was recorded at 9.30 hours on that very day.
The I.O. has also deposed to have found four furrows of ploughing in the said place of occurrence. PWs 1, 2, 4, 5 and 6 in their evidence on oath have deposed that they were ploughing the land at Gandhar Chaura when the occurrence had taken place and some of them have also deposed that at the time of occurrence they had ploughed the land and completed four furrows in the said field. Therefore, in view of the evidence it becomes an established fact that the occurrence had taken place at 7.00 hours in the field at Gandhar Chaura which was being ploughed at the time by the deceased along with PWs 1, 2, 3, 4, 5, 6 and 7 in which Simon Topo was done to death by the appellant.
13. PW 1, the informant has deposed that he along with PWs 2, 3, 4, 5, 6 and 7 besides the deceased were ploughing the land in question by their respective plough and oxen and there is a custom in the village to help the needy farmer in ploughing the land. He has also deposed that the land in question was in cultivating possession of Simon Toppo and prior to the occurrence our furrows has been ploughed in the said field and at that stage the appellant came in the filed from the south of that field and abused the deceased and asked him to stop the ploughing of the land and also told that as to whose land he is ploughing and immediately soon thereafter, he gave a blow by the back of the axe on the waist of the deceased who fell down and became unconscious. He has also deposed that he along with the aforesaid persons were intimated by the appellant by the show of the axe as a result of which they did not intervene to rescue the deceased. His evidence is further to the effect: that, thereafter, the appellant mounted assault by axe on the deceased and he gave six or seven repeated blows on his person. PWs 2. 4, 5, 6 besides PW 3 in their evidence on oath have materially corroborated the testimony of PW 1, the informant regarding the assault by axe on the person of the deceased by the appellant. They have all deposed that Simon Topo died on the spot instantaneously as a result of the assault by Tangi on his person. Nothing material has been elicited in their cross-examination to discredit their testimony regarding the manner of the assault on the deceased by the appellant. All the aforesaid witness are the ocular witness of the occurrence and they do not appear to have any animus against the appellant to depose falsely and their presence as well at the place of the occurrence cannot be disputed. The ante mortem injuries found on the person of the deceased by the medical witness stand corroborated as per the ocular testimony of the aforesaid witnesses. However, there is one discrepancy in the evidence on the record regarding the non- existence of any injury on the waist of the deceased caused by the back portion of the axe as the medical witness has not found any wound on the waist of the deceased caused by hard and blunt substance but this discrepancy has no bearing at all in the facts and circumstances of the case of belie the prosecution case as well as to discard the ocular testimony of PWs 1, 2, 4, 5 and 6 besides PW 3 read with the objective finding referred to above of PW 10, the I.O.
14. In view of the evidence referred to above I have no hesitation to come to the conclusion agreeing with the finding of the learned Court below that the appellant has assaulted the deceased in the said field by axe repeatedly committing his murder intentionally and his act was premeditated after cool consideration. The evidence on the record further shows that as a result to enmity the appellant has committed the murder of the deceased. Therefore, in the facts and circumstances of the case the false implication of the appellant in this case is totally ruled out in view of the enmity existing and alive between them. All the aforesaid eye-witnesses are the most competent, natural and reliable witnesses of the occurrence and they have the occasion to witness the occurrence in view of the fact that they were ploughing the said land when the occurrence has taken place in the said land. Their testimony cannot be discarded in view of the fact that they belong to the group of the deceased whereas the appellant belongs to the other group in the village. PW 3 Dobius Tirkey in para 3 of his evidence has stated that half portion of the P.O. land was in possession of the family members of the appellant and the remaining half which was being ploughed was in possession of the deceased but the appellant was claiming the entire land and for that he has committed the murder of the deceased when he was ploughing the land in his possession. In view of the evidence on the record the prosecution has proved beyond all reasonable doubts that the appellant has committed the murder of the deceased at 7.00 hours on the day of the occurrence in the field in cultivating position of the deceased when it was being ploughed by him and the other aforesaid ocular witnesses.
15. The appellant before the trial Court has indirectly taken the plea of right of private defence of property and it has been stated that the deceased was a trespasser and he had no right, title interest in or possession over the land which he was ploughing and the occurrence has taken place at the spur of the moment when the ploughing of the said field was objected to by the appellant. It has been contended that the said land belongs to the appellant by virtue of the deed of Will dated 25.10.1935 (Ext. B) executed by Badru Oraon, the recorded tenant in the survey khatiyan in respect of the said land. It is pertinent to mention here that there is no material at all on the record to give an inkling of the fact that the said Will was ever probated. It is the settled principle of law that a Will unless probated has no legal bearing in respect of the right, title, interest and possession in respect of the properties covered under the Will. Therefore, the said Will is a non-est document which did not at all confer any right to the appellant in respect of the land in question. Nothing has been brought on the record to show that a daughter in the family as per the customary law of the parties is not the heir of the recorded tenant. The document (Ext. 5) on the record conclusively suggests that the deceased was an adopted son of Katrina Orain and her husband Francis Uraon. The deed of adoption (Ext. 5) on the record evidences the fact of adoption of the deceased by Katrina Orain. The rent receipts (Ext. 6 series) shows that Katrina and her husband were possessed of land in village Tintangar Patratoli and some lands were also purchased by Francis Uraon as per Ext. 7. Therefore, it can not be said that the deceased had no right, title or interest in the land which was being ploughed by him along with PWs 1 to 7. The deceased can never be said to be a trespasser on the land which he was ploughing along with the aforesaid persons. It further appears that Simon Topo, the deceased was ploughing the land in question as of his rights whereas the appellant in the absence of the probate of the Will cannot be said to have any semblance of title or possession over the land in question.
16. In this view of the matter the appellant has no right of private defence of property at all in respect of the land in question. Therefore, there is no substance in the contention of the learned counsel for the appellant regarding the appellant having right of private defence of property in respect of the land in question. It, therefore, appears that the appellant has committed the murder of the deceased brutally and mercilessly inflicting repeated blows by axe on his person only with a view to eliminate him from the scene to grab the entire properties of Katrina and Francis (since dead). Furthermore the land in question was being ploughed at the time of the occurrence. No crop was planted in the field by then. There was ample opportunity for the appellant to take recourse to law and move the competent authorities in respect thereof instead of taking the law in their own hands by brutally assaulting the deceased causing his death at the spot. It is equally relevant to mention here that the deceased was without arms while the land was being ploughed. There is total absence of any overt act by him when he was abused and prevented from being ploughed the land and in this view of the matter there was also no occasion for the appellant to assault him causing his death by giving him repeated blows on his person by axe. Section 103 of the IPC provides "that 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, in respect of offence of robbery, house breaking by night, mischief by the committed on any building used as a human dwelling or as a place for the custody of the property besides 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." Here in this case the appellant has no right of private defence at all as per Section 103 of the IPC. It is also the settled principle of law that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities.
17. Therefore, in the facts and circumstances of the case the appellant has no right of private defence of property at all. The learned Court below has meticulously scrutinized and considered the evidence on the record and has rightly come to the conclusion of the guilt of the appellant. I see no illegality in the impugned judgment requiring an interference therein. The conviction of the appellant is hereby affirmed.
18. There is no merit in the appeal and it fails. The appeal is hereby dismissed.
Lakshman Uraon, J.
19. I agree.