State of Bihar v. Sarju Bhumij and Banmali Bhumij — 1987 DIGILAW 91 (PAT)

JUDGMENT : N.P. SINGH & B.P. SINGH, JJ. 1. The two appellants Sarju Bhumij and Banmali Bhumij were put on trial for offences under section 302 read with section 149 of the Penal Code along with three others Mado Bhumij, Anil Bhumij and Joga Bhumij, who have been acquitted of the charges leveled against them, by the learned Additional Sessions Judge, Jamshedpur, who has convicted the appellants for an offence under section 302 read with section 149 of the Penal Code and sentenced them to death for having committed the murder of Govind Bhumij and his wife Bejo Bhumijain. The appellants first filed two appeals from jail. Later they have filed an appeal through Counsel as well. A reference has also been made by the learned Additional Sessions Judge for confirmation of the sentence of death by this Court in accordance with the provisions of the Code of Criminal Procedure. They were heard together and are being disposed of by a common JUDGMENT :. 2. At the outset we must observe that we have failed to appreciate as to how the learned Additional Sessions Judge having acquitted the three co-accused has convicted the two appellants for an offence under section 302 read with section 149 of the Penal Code when there was neither any allegation nor it was mentioned in the charge that, apart from five accused persons others had also participated in the occurrence. Any way, it is well settled that if, on the basis of the evidence on record, it can be held that the convicted appellant committed the murder in question, then they can be convicted under section 302 or section 302 read with section 34 of the Penal Code and in such a situation no prejudice is likely to be caused to them. Reference in this connection may be made to the well-known case of W. Slaney vs. State of Madhya Pradesh, AIR 1956 Supreme Court 116. 3. Coming to the merits the prosecution case is that on 19.6.1984 the informant (P.W. 1), his sister Bejo Bhumijain (deceased) and her husband Govind Bhumij (deceased) were getting their lands appertaining to Plot No.153 of Village, Kalesele, P.S. Ghatsila, District Singhbhum, ploughed. At about 10 a.m. it is said that these two appellants along with three others, since acquitted, armed with bows, arrows, Tangi and Lathi, came on the land in question and raised Hulla. At about 10 a.m. it is said that these two appellants along with three others, since acquitted, armed with bows, arrows, Tangi and Lathi, came on the land in question and raised Hulla. The informant (P.W. 1) reached there and intervened. Thereupon appellant Sarju gave a lathi blow on Bejo Bhumijain, the sister of the informant and appellant Banmali gave axe blows on her neck and other parts of the body. She fell down on the ground. Appellant Banmali also gave axe blows to Govind Bhumij. Appellant Sarju also gave lathi blows to Govind Bhumij. The remaining three appellants are said to have assaulted with fists and blows. Because of the assault Bejo Bhumijain and Govind Bhumij died. The informant (P.W. 1) also received lathi injury during the occurrence. 4. According to the prosecution, the first information of the occurrence was lodged on 20.6.1984 at 6 a.m. in the morning. In the first Information Report, it was said that as the informant was afraid of the accused persons he did not go to the Police Station during the night. The sub-Inspector of Police came at the place of occurrence, held the inquest report and took the dead bodies to the Police Station from where they were sent for postmortem examination to the State Dispensary, Ghatsila. After completion of the investigation, charge-sheet was submitted against the five accused persons. After the trial these appellants were convicted and sentenced as already stated above. 5. The learned Additional Sessions Judge, on the consideration of the materials on record, has come to the finding that the land in question was in possession of the accused persons, though Bejo Bhumijain (deceased) had gat a decree in her favour in respect of the land in question. According to the learned Judge, although the accused persons were in possession, they intentionally assaulted the two deceased and committed their murder because of which they were liable to be punished for an offence under section 302 read with section 149 of the Penal Code. 6. In support of the case of the prosecution several witnesses were examined at the trial. Out of them, P.W. 1, the informant and P.W. 2, who was the ploughman of the two deceased, were examined as eye witnesses. 6. In support of the case of the prosecution several witnesses were examined at the trial. Out of them, P.W. 1, the informant and P.W. 2, who was the ploughman of the two deceased, were examined as eye witnesses. P.W. 3, although mentioned as an eye witness, in the First Information Report, did not support the case of the prosecution as an eye witness and he was declared hostile. The remaining witnesses claim to have reached the place of occurrence and learnt about the occurrence from P.Ws. 1 and 2. 7. From the statements of the different witnesses it is an admitted position that Bejo was married to one Shambhu about 30 years before the date of occurrence. The land in question belonged to said Shambhu, who died some 20 years before the occurrence. After the death of Shambhu, Bejo married one Umesh and had three issues from him. After some years even Umesh died and then she married Govind Bhumij (deceased). According to P.W. 1, who is the brother of Bejo (deceased), Govind and Bejo used to remain at Burdwan and used to work as labourers. On the date of the occurrence they along with P.W. 2 came on the land and were ploughing when the protest was lodged by the accused persons which was followed by the occurrence resulting in the death of Bejo Bhumijain and Govind Bhumij. 8. In view of the claim and counter claim on behalf of the prosecution and the accused persons, the first relevant question which has to be considered is as to who was in possession of the land in question. P.Ws. 1 and 2 claimed, in their evidence-in-chief, that on the date of occurrence Bejo was ploughing her own land but they admitted that the land belonged to her first husband Shambhu. Appellant Sarju is the husband of the sister of Shambhu. Appellant Banmali is the son of appellant Sarju and as such Bhagina of Shambhu and claims that he came in possession of the land being the Bhagina of Shambhu. 9. The learned Counsel for the appellants pointed out that most of the witnesses have admitted that, on the date of occurrence, the land in question was in possession of the accused persons. In this connection reference was made to the evidence of P.W. 5, who is the brother of Bejo (deceased). 9. The learned Counsel for the appellants pointed out that most of the witnesses have admitted that, on the date of occurrence, the land in question was in possession of the accused persons. In this connection reference was made to the evidence of P.W. 5, who is the brother of Bejo (deceased). He has stated, in cross-examination, that accused Banmali is the Bhagina of Shambhu. He has further stated that his sister meaning thereby Bejo when married to Umesh accused Banmali dispossessed his sister Bejo from the land in dispute. P.W. 6 has also stated that accused Sarju is the brother-in-law of Shambhu and when Bejo married Umesh since then the accused persons came in possession of the land in dispute. P.W. 10 has also stated, in cross-examination, that it was the accused persons who were cultivating the land in question. P.W. 1, the informant in his cross-examination, has stated that the accused persons had forcibly come in possession of the land. P.W. 2 also said the same thing that accused Banmali had forcibly come in possession of the land in dispute because of which the occurrence took place. He further said that accused Banmali claimed the land as it belonged to his maternal uncle. 10. In view of the statements made above, there is no escape from conclusion that the land was in possession of the appellants on the date of the occurrence. As such when the prosecution party including the two deceased came on the land to plough, the accused persons had the right to resist the same. It is true that on the materials on record, the prosecution party was only ploughing the land which was, perhaps, fallow. In that background, it can be said that by ploughing the land there was no imminent danger of any loss to the accused persons but this aspect of the matter has been examined by the Supreme Court in the case of Munshi Ram vs. Delhi Administration, AIR 1968 Supreme Court 702 and in the case of Puran Singh vs. State of Punjab, AIR 1975 Supreme Court 1674, where it has been pointed out that, whenever their is a trespass or invasion on the land which is in possession of the accused persons, they have a right of private defence of property this right of private defence should be liberally construed. In that connection it was observed in the case of Munshi Ram vs. Delhi Administration (supra) that "there is nothing more degrading to the human spirit than to run away in the face of peril." As such it has to be held, on the materials on record, that when the prosecution party came on the land and started ploughing, the accused persons who were in possession of the land in question could have resisted by using reasonable force. Once that is held the appellants cannot be convicted for an offence under section 302 or under section 302 read with section 34 of the Penal Code because their case is covered by Exception 2 of section 300 of the Penal Code which says that culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the reason against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence. 11. However, the next question which has to be answered is as to whether while exercising such right of private defence of property, in the facts and circumstances of the present case, it can be held that the appellants have done more harm than was necessary for the purpose of defence of the property in question. Before this question is considered and examined, it is advisable to deal with the submissions made on behalf of the appellants. According to the Counsel appearing for the appellants, the prosecution has faded to prove its case beyond all reasonable doubts, as such instead of convicting them under section 304 of the Penal Code they should be acquitted of all the charges leveled against them. The Counsel for the appellants in this connection pointed out that although the First information Report shows that it was lodged at 6 a.m. on 20.6.1984, in fact, it was recorded in the evening of 20.6.1984, after the investigation had commenced as such it cannot be treated as First Information Report. In support of this contention our attention was drawn to the evidence of P.W. 4 where he has stated that on 19.6.1984 after the occurrence the Chaukidar came at the place of occurrence. In support of this contention our attention was drawn to the evidence of P.W. 4 where he has stated that on 19.6.1984 after the occurrence the Chaukidar came at the place of occurrence. Along with the Chaukidar P.W. 4 went to the Police Station and reached there at 4 in the evening. The Officer-in-charge told him that as the jeep was not available, he will come the next day. He further stated that whatever he said to the Officer-in-charge it was taken down by him in writing. Then he has stated that on 20.6.1984 the Officer-in-charge came on the cycle to village Katesele and took the dead bodies to the Police Station. P.W. 4 along with the Officer-in-charge reached the Police Station at 3.30 p.m. There the statement of P.W. 1 Harekrishna Bhumij was recorded and he put his thumb impression. On the basis of the aforesaid statement, it was urged that there is no question of the first information being lodged at 6 a.m. on 20.6.1984 at the Police Station. It may be mentioned that, in the First Information Report, it has been mentioned that it was being recorded at the Police Station which is 27 kilometers from the place of occurrence. The learned Counsel for the appellants also pointed out that from a bare reference to the inquest report (Ext. 5) it will appear that the inquest was done by the Officer-in-charge at about 7 a.m. in the morning of 20.6.1984 i.e. before the recording of the First Information Report. 12. According to us, there is substance in the contention raised on behalf of the appellants especially that the investigating officer has not been examined to explain the discrepancies mentioned above in respect of the recording of the First Information Report. It is well-known that any statement made during the course of investigation cannot be treated as First Information Report. But we need not examine this aspect of the matter, in detail, because even if it is assumed that the so called First Information Report, in the present case, is really a statement recorded during the course of investigation and as such cannot be treated as First Information Report, the conviction of the appellants is not to be set aside on that ground alone. In other words, if the Court is satisfied, on the basis of the evidence of the eye witnesses and other circumstances produced during trial that these appellants assaulted the two victims, who died due to the injuries caused to them, then even in absence of the First Information Report, the appellants can be convicted. 13. Coming to the evidence of the witnesses it may be mentioned that P.W. 1 is the brother of Bejo (deceased). He has stated, is detail, about the assault on the two victims by the appellants. Same is the position in respect of P.W. 2, who has also stated, in detail, about the manner of occurrence. The other witnesses (P.Ws. 4, 5, 6, 7 and 10) although did not see the occurrence but have stated on oath that no sooner they reached at the place of occurrence they learnt that these appellants assaulted Bejo and Govind with Tangi and Lathi. The manner of occurrence disclosed by the two eye witnesses is fully corroborated by the postmortem report. P.W. 9, who held the postmortem examination on the dead bodies of the two victims, has stated, in detail, about the sharp cutting wounds, abrasions and lacerated wounds found on the person of Bejo and Govind. 14. After reading the evidence of the witnesses, mentioned above, at length, it has to be held (i) the land was in possession of the accused persons, although 20 years before the date of occurrence some sort of decree had been passed in favour of Bejo which has not been brought on the record of the case, (ii) after the death of Shambhu, Bejo married Umesh and since then the accused persons claiming to be the brother-in-law and Bhagina of Shambhu came in possession of the lands and continued as such till the date of occurrence and (iii) the two deceased along with P.W. 2 and others came on the land to plough the same on the basis of title claimed by Bejo which was resisted by the accused persons. In that occurrence these appellants caused serious injuries on Bejo and Govind. 15. In that occurrence these appellants caused serious injuries on Bejo and Govind. 15. On the aforesaid finding, there should not be any difficulty in holding that the appellants cannot be convicted under section 302 or section 302 read with section 34 of the Penal Code because in exercise of the right of private defence of property they could have assaulted Bejo and Govind and their supporters. But, as the prosecution party was only ploughing the land and there was no apprehension of any grievous injury on the person of any of the accused persons, it was not open to them to kill Bejo and Govind; as such they have exceeded their right of private defence because of which they can be convicted under section 304, Part I of the Penal Code. 16. Accordingly, these appeals are allowed. The conviction and sentence passed against the appellants for offence under section 302 read with sections 149 and 323 of the Penal Code is set aside. However, the two appellants are convicted under section 304, Part I of the Penal Code and they are sentenced to undergo rigorous imprisonment for a period of seven years each. Normally for an offence under section 304, Part I a more severe sentence could have been imposed but, taking into consideration these appellants are the brother-in-law and nephew of Shambhu to whom the land belonged and they were claiming the said land as his heirs after his death and they remained in possession thereof for a sufficiently long period before the occurrence took place, we have taken a more lenient view on the question of sentence. With the modification, indicated above, all the appeals are dismissed and the reference is discharged.