Nakul Mahto v. State Of Bihar — 1995 DIGILAW 106 (PAT)

Judgment P.K.Deb, J. 1. The appellants, in the above case, have been convicted by the judgment and order dated 8.6.1990 in Sessions Trial No. 308 of 1987 by Shri Uma Shankar, 1st Additional Sessions Judge, Hazaribagh. Appellant No.1 Nakul Mahto has been held guilty under Sec. 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life by the impugned judgment while appellant No.2 Dwalika Mahto has been held guilty under Sec. 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. 2. The prosecution case is that on 24.7.1984 the informant Satan Mahto (P.W. 9) was ploughing his field at Village Kaur Tari, Police Station Barkagaon in the district of Hazaribagh along with his son Gulel Mahto and grandson Ishwar Dayal Mahto, then all on a sudden, the above named two accused appellants along with Charku Mahto an her accused who have been acquitted appeared at the field. Dwarika Mahto and Charku Mahto were armed with lathi while Nakul alias Akul Mahto was armed with Balua. Dwarika Mahto gave one lathi blow to Ishwar Dayal Mabto near the knee joint of right hand due to which he fell down. Nakul Mahto gave Balua blow on the head of Gulel Mahto who also fell on the ground. It is also alleged that all the accused persons have given further blows by their respective weapons on the person of Gulel Mabto. The informant then raise hulla and then from the nearby field, P.W. 6 Lakhan Mahto, P.W. 7 Mittar Mabto and PW. 8 Baleshwar Mahto came to the place of occurrence. They had also seen the occurrence themselves and at their sight, the accused persons themselves and at their sight the accused persons fled away. The injured persons were removed first to Barkagaon State Dispensary by the informant and the witnesses. Both the injured were found unconscious. Md Alam Khan, A.S.I. of Police came to Barkagaon Hospital and recorded the fard-beyan given by the informant Satan Mahto on the basis of which, first information report (Ext. 6) was registered. The Assistant Sub-Inspector of Police also prepared injury reports of both the injured Gulel Mahto and Ishwar Dayal Mahto which were marked Exts 8 and 8/1 during the course of trial. The injuries of those two persons were also examined by Dr. B.K. Upadhayaya who issued injury certificates which were marked Exts. 6) was registered. The Assistant Sub-Inspector of Police also prepared injury reports of both the injured Gulel Mahto and Ishwar Dayal Mahto which were marked Exts 8 and 8/1 during the course of trial. The injuries of those two persons were also examined by Dr. B.K. Upadhayaya who issued injury certificates which were marked Exts. 9 and 9/1 respectively. Both the injured persons were referred to Hazaribagh Sadar Hospital and from Hazaribagh Sadar Hospital, the injured Gulel Mahto was referred to Rajendra Medical College Hospital, Ranchi, but unfortunately, on the way he breathed his last. Then the dead body was brought to the Hazaribagh Sadar Police Station where inquest was held in-quest report (Ext. 2) was prepared and the dead body was sent for autopsy Dr. N.K. Das held the Post mortem examination on the dead body of Gulel Mahto and prepared post mortem report (Ext. 4) which runs as follows: "External- (1) Stitched wound left parietal region of scalp 4" long margin incised with fracture of parietal bone of skull. (2) Stitched wound on the occipetal region of scalp 5" long with incised margins. The wound was deep up to inner bone. (3) On dissection I found fracture of parietal bond of scalp with laceration of meringues and blood clot over brain and meringues. All other viceras were intact and pale. (4) Time elapsed since death between 6 to 24 hours. An injuries caused by sharp cutting weapon might be Balua. Death was caused due to shock and haemorrhage due to injuries mentioned above." 3. During the course of investigation, the Investigating Officer, Brinda Prasad Singh, (P.W. 13) visited the place of occurrence on 25.7.1984, prepared a sketch map of the same, and sized one blood stained towel from there and prepared a seizure list which had been marked Ext. 3/1. The house of the accused persons were also searched but no incriminating materials were found. The sketch map has been marked as Ext. 7 in the case. 4. After examining the witnesses in the case, charge-sheet was submitted against the accused persons under Secs. 302, 323 and 34 of the Indian Penal Code. On commitment to the court of Sessions, charges were framed against all the three accused persons under Sec. 302/34 of the Indian Penal Code and a separate charge was framed against accused Dwarika Mahto under Sec. 323 of the Indian Penal Code. 302, 323 and 34 of the Indian Penal Code. On commitment to the court of Sessions, charges were framed against all the three accused persons under Sec. 302/34 of the Indian Penal Code and a separate charge was framed against accused Dwarika Mahto under Sec. 323 of the Indian Penal Code. When the charges were read over and explained to the accused persons on 8.9.1988, they pleaded not guilty. 5. The defence case is the denial of the prosecution story. They have denied the manner, nature and the place of occurrence as alleged by the prosecution. According to the defence, they had raise paddy over their land and the informant party had gone to the field to destroy their cultivation and wanted to receptivity the same and when they went to raise objection then there was quarrel and altercation. In all, it is found that the accused had taken the plea of the right of private defence of property. On behalf of the defence, to substantiate their right of property and actual physical possession over the land in question, adduced evidence of four witnesses in the case and they have proved number of documents, namely, original Hukumnama in the name of the predecessor of the accused persons, purchase and then sale deed of the accused persons by their predecessor. It is an admitted fact that just after this occurrence, the informant party had sold away the land. The prosecution has not proved any document in this case in support of their possession and title over the land in question. 6. For and on behalf of the prosecution, as many as 13 witnesses have been examined. P.W. 1 Devidutt Mahto is a hear-say witness and has proved the inquest report. P.W, 2 Tetar Mahto is also a hear say witness and came to the place of occurrence on hearing alarm. P.W. 3 Basu Mahto, P.W. 4 Bhuneshwar Mahto and P.W. 5 Bideshi Mahto have only been tendered and according to the prosecution, they were the eye witnesses of the occurrence. P.W. 6 Lakhan Mahto and P W. 7 Baleshwar Mahto are the eye witnesses of the occurrence P.W. 8 Mittar Mahto, alleged to be an eye witness, has also been tendered. PW. 9 Sotan Mahto is the informant of the case and an eye witness of the occurrence. He is the father of the deceased GulelMahto. P.W. 6 Lakhan Mahto and P W. 7 Baleshwar Mahto are the eye witnesses of the occurrence P.W. 8 Mittar Mahto, alleged to be an eye witness, has also been tendered. PW. 9 Sotan Mahto is the informant of the case and an eye witness of the occurrence. He is the father of the deceased GulelMahto. P.W. 10 Ishwar Dayal Mahto is an injured witness and just like his grand father P. W. 9 Satan Mahto, a star witness of the occurrence. P.W. 11 is Dr. N. N. Das who held autopsy over the dead body of Gulel Mahto as mentioned above. P.W. 12 Suleman Die, a Constable, is a formal witness, proving the first information report. P.W. 13 Brinda Prasad Singh is the Investigating Officer of the case. 7. Defence Witnesses, namely, D.W, 1 Ram Jivan Lal, D.W. 2 Mathura Roy, D.W. 3 Bisheshwar Ramand D.W. 4 Bachchu Mahto have not stated a word regarding the occurrence. They have only proved the documents exhibited for and on behalf of the defence regarding the title and possession over the disputed land. 8. Admittedly the occurrence took place in the Plot No. 950 of Khata No 8. The prosecution has not shown their title by adducing any evidence or any document in their favour, rather their sale deed to other persons after the occurrence includes Plot No. 950 Khata No. 8. The learned court below in his impugned judgment has discussed this plea of right of private defence about the property in paragraph 11 of the impugned judgment but it seems on careful scrutiny of the documents brought on record that the learned court below did not scrutinise the documents produced in support of the defence in the case in its entirety. 9. Ext. N2 Parcha shows that a part of Plot No. 950 was standing in the name of Shyam Lal Mahto, the predecessor of the informant Similarly purchase deed of the accused persons (Ext. D) shows 1st plot as 950/4. 9. Ext. N2 Parcha shows that a part of Plot No. 950 was standing in the name of Shyam Lal Mahto, the predecessor of the informant Similarly purchase deed of the accused persons (Ext. D) shows 1st plot as 950/4. When the learned court below relied on the document of sale deed of the informant party to others after the occurrence having plot No. 950 included in the (8) it must not be lost sight of the Trial Judge that much prior to the occurrence in the year 1988, Plot No. 950 (a part of it) had already been purchased by the accused persons and moreover that plot was standing in the name of the predecessor of the accused persons vide Parcha Ext. A/2, so that learned lower court could not approach the case in its proper perspective. The prosecution must stand on its own footing and not on the defect of the defence. The burden of defence is complete when he or they could show the preponderance of probability regarding their plea of defence. When from the very beginning the accused persons were taking the plea of right of private defence of the property then it was the bounden duty of the prosecution to prove beyond all reasonable doubt that the occurrence took place at the part of Plot No. 950 where they had exercised their right of title and possession. The case of the defence is that on a part of the land they had raised paddy about a week earlier while the prosecution case is that they h ad grown paddy about a month earlier to the date of occurrence. The sketch map prepared for the Investigating Officer and his evidence it could be found that on part of the alleged place of occurrence there was recent growing of paddy which supports the defence version and not the prosecution version. There is also discrepancy as is found from the impugned judgment itself to the prosecution story when the witnesses differ each other from the nature of the injury caused or the attribution to the accused persons regarding the number of assault made by their respective weapons. There is also discrepancy as is found from the impugned judgment itself to the prosecution story when the witnesses differ each other from the nature of the injury caused or the attribution to the accused persons regarding the number of assault made by their respective weapons. As regards the injury on the person of Ishwar Dayal Mahto, there is no discrepancy when he was given lathi blow on the knee joint by the accused appellant Dwarika Mahto but as regards the injury on the person of Gulel Mahto, there are vast discrepancy even by the star witnesses, namely, P.Ws. 9 and 10. The injury attributed on Gulel Mahto by the witnesses do not tally with the post mortem report or the injury report prepared in the case, but it is there by overwhelming evidence of all the prosecution witnesses and could not be dislodged by cross-examination that the accused appellant Nakul Mahto was armed with Balua in his hand and he had given blows on the person of Gulel Mahto, that too on the head region. It is submitted that the injured Gulel Mahto did not die instantaneously rather he got treatment at Sadar Hospital, Hazaribagh, and while being referred to Rajendra Medical College Hospital, Ranchi, he breathed his last on the way. The post mortem examination and the evidence of P.W. 11 reveals that he sustained two stitched injuries on the parietal region and occipital region on the head and on dissection he found fracture of parietal bone with laceration of meanings and blood clot over brain and meanings. The death was definitely due to the injuries caused with the above internal injuries. Death might be some time later but when such injuries were found internally, it cannot be held that the deceased could be in a position to survive if proper treatment was applied in time. It might be that if some sophisticated treatments were available in India he could have been survived, but before such could be done, he breathed his last. Portion chosen on the person of the deceased for giving blow are definitely on the vital portion of the body and, as such, it cannot be said that there was no intention on the part of the accused appellant Nakul Mahto to cause injuries only and not with the intention of murder. Portion chosen on the person of the deceased for giving blow are definitely on the vital portion of the body and, as such, it cannot be said that there was no intention on the part of the accused appellant Nakul Mahto to cause injuries only and not with the intention of murder. But the whole case is to be taken in the light of the fact as mentioned above that the defence could be able to show by preponderance of evidence that they had the right of exercising private defence for the property and as such the injuries caused under Sec. 323 of the Indian Penal Code by means of a lathi on the person of Ishwar Dayal Mahto cannot be said to be exceeding the right of private defence, but in respect of accused-appellant Nakul Mahto, it could be found that he had given two blows with the deadly weapon on the vital portion on the person of deceased Gulel Mahto. It is true that the is no golden scale to measure the extent of right of private defence but each case is to be decided circumventing the circumstances of the case. 10. In the present case, the accused person had transplanted paddy about seven days prior to the occurrence and the informant party with the very cause of exercising their right over the land had gone to weed grasses over the same and then the accused persons came their with weapons and raised objections and in course of altercation, the accused persons had given those blows. It is true that the defence could also not be able to prove their exact right over the land in question (when the land of actual assault could not be ascertained by the prosecution itself due to non-finding of any blood mark at the place due to heavy rains) but it is found that both the parties were fighting for their possession over the disputed land and in this case the defence could prima facie show semblance of the right over the land in question and hence in visualizing the circumstances and on the basis of the evidence on record, I am constrained to hold that the accused appellant Dwarika Mahto is entitled to acquittal as he is within his right of private defence of property while accused appellant Nakul Mahto is guilty of exceeding the right of private defence and he should be convicted under Sec. 304 Part II of the Indian Penal Code and sentence is imposed to undergo rigorous imprisonment for five Years and to pay a fine of Rs. 2,000.00 and in default thereof, to undergo rigorous imprisonment for one year more. 11. In the result, this appeal is allowed in part. The judgment of conviction and sentence passed against appellant No.2 Dwarika Mahto is hereby set aside and he is acquitted and discharged from the liabilities of his bail bonds. The judgment of conviction and sentence against the appellant No.1 Nakul Mahto under Sec. 302 of the Indian Penal Code is modified to the extent of conviction under Sec. 304 Part II of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and to pay a fine of rupees two thousand and in default to undergo rigorous imprisonment for one year more. The accused appellant Nakul Mahto is in custody after the period of provisional bail granted by this court is over. The period of detention in hazat shall be set off from the award of sentence. R.N.Sahay, J. 12 I agree.