Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 70 (PAT)

Ram Bilas Yadav v. State Of Bihar

2000-01-14

R.N.PRASAD, S.N.PATHAK

body2000
Judgment S.N.Pathak, J. 1. This appeal is directed against the order of conviction and sentence passed by Shri S.I. A.I. Raza, Sessions Judge, Madhubani, dated 21.4.1987, all the appellants above-named were convicted under Section, 302/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. They were further convicted under Secs. 326/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for ten years. They were still further convicted under Sec. 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years and also under Sec. 447 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for three months. All the sentences were directed to run concurrently. Appellant Ram Bilas Yadav was further sentenced to undergo rigorous imprisonment for two years for an offence penalised under Sec. 324 of the Indian Penal Code. 2. The prosecution case, as stated in the fardbeyan of one Ram Bharosh Thakur, was that on 30.8.1980 at 8 a.m. The informant was told by Ram Bahadur Yadav in presence of Subodh Yadav that Babulal Yadav had cut the ridge of the field. Then, this informant and Others went to the field known as Gullar Tar Key Khet and the informant and Subodh Yadav patched up the difference between the parties and it was decided that during dry days both parties will get their field measured and settle the matter and no violence should be resorted to. However, oh 31.8.1980 (date of occurrence) when the informant Ram Bharosh Yadav and Subodh Yadav were sitting at the house of the latter, the son of Ram Suchit Yadav (deceased) aged about 6 to 7 years came running and informed Ram Suchit Yadav that Ram Bahadur and others, armed with bhala and pharsa, were cutting ridge of the field and Babulal Yadav announced that whoever will come shall be subjected to killing. Subsequently, Ram Suchit Yadav along with Subodh Yadav, the informant and one Harish Chandra Pathak all went to the place of occurrence where all the above-named accused-appellants were present, armed with above weapons. They found that Ram Bahadur Yadav and Briksh Yadav were cutting ridge of the field and others were also armed with lathi and bhala. Ram Bilas Yadav was wielding garansa in his hand and some other garansas were also kept on the ground in the field. They found that Ram Bahadur Yadav and Briksh Yadav were cutting ridge of the field and others were also armed with lathi and bhala. Ram Bilas Yadav was wielding garansa in his hand and some other garansas were also kept on the ground in the field. Subodh Yadav told the accused that when there was panchayati on the previous date, why they were cutting ridge on that date (date of occurrence). Thereafter, Ram Bilas Yadav instigated Ram Bahadur Yadav to assault Subodh Yadav and then Ram Bilas Yadav assaulted Subodh Yadav with garansa which cut the nose of the latter. Subsequently, all the accused-persons assaulted Ram Suchit Yadav with garansa, spade, kudali and bhala. When Babulal Yadav raised a protest, he was also subjected to assault. Thereafter, Ram Suchit Yadav and other injured persons were carried to hospital where the informant Ram Bharosh Thakur gave his fardbeyan, a case was registered and investigated. On submission of charge-sheet and commitment, all the accused-appellants were tried and were convicted and sentenced, as stated above. 3. The accused-appellants through their cross-examination of the P.Ws. as also through their counter-case built up defence that on 30.8.1980 Ram Suchit Yadav had cut the ridge of their field for which there was a panchayati. However, Ram Suchit Yadav did not turn up in the pachayati and the panchas directed accused Ram Bilas Yadav to block the cut ridge and not to indulge in any kind of violence. On 31.8.1980 when Ram Bilas Yadav went to black the cut ridge in the morning, Ram Suchit Yadav and others of the prosecution party came there and started quarrelling. Ram Suchit Yadav and Babulal Yadav both were armed with garansa and bhala respectively. Subodh Yadav was armed with lathi Suchit Yadav hurled garansa blow upon Ram Bilas Yadav which hit him on the left side of his head. When Ram Bilas Yadav fell down, Babulal Yadav assaulted him on his thigh. Subodh Yadav assaulted Ram Bilas Yadav with blunt portion of bhala on his mouth breaking his right tooth. Others also assaulted Ram Bilas Yadav with weapons they were carrying. The above story of defence version of the alleged occurrence is contained in the fardbeyan of Ram Bilas Yadav, which was exhibited in the trial Court (Ext. A). 4. Subodh Yadav assaulted Ram Bilas Yadav with blunt portion of bhala on his mouth breaking his right tooth. Others also assaulted Ram Bilas Yadav with weapons they were carrying. The above story of defence version of the alleged occurrence is contained in the fardbeyan of Ram Bilas Yadav, which was exhibited in the trial Court (Ext. A). 4. The trial Court on the basis of 9 witnesses found the accused guilty and convicted and sentenced them as stated above. P.W. 1 was the informant, who was one of the Panchems, who settled the dispute over cutting of the ridge in between the fields of prosecution party and some of the accused-appellants. P.W. 2 was Babulal Yadav, an injured P.W. 3 was Subodh Yadav, another Panch; P.W. 4 was son of the deceased who had simply come to inform his father about the alleged act of cutting of the ridge on 37.8.1980 P.W. 5 was Dr. Nawal Kishore Singh who examined the injuries of Babulal Yadav; P.W. 6 was Dr. F.A. Khan who held autopsy on the dead body of Ram Suchit Yadav; P.W. 7 was Jagdish Narayan Singh who partly investigated the case and P.W. 8 was also an Investigating Officer of Khajauli P.S. where the case was later transferred P.W. 9 was a formal witness who proved the sale-deed which is not relevant to the facts of the case. A defence witness was examined who brought on the record the fardbeyan of Ram Bilas Yadav (Ext. A) with his injury report (Ext. B). 5. So far as the evidence of P.Ws. is concerned, it is apparent that P.Ws. 1, 2 and 3 are the only eye-witnesses and I shall refer to the salient features of the evidence of these witnesses only because the alleged occurrence of assault on 31.8.1980 at a place in between the fields of the informant and the appellants is almost admitted in view of the case of both the parties which I have referred to above as also in view of the suggestions given to the P.Ws. In such a circumstances, the only relevant point to be considered and decided is as to which of the parties was aggressor and which acted in its defence, if at all, and whether any of the accused-appellants of the prosecution party exceeded his right of self-defence. In such a circumstances, the only relevant point to be considered and decided is as to which of the parties was aggressor and which acted in its defence, if at all, and whether any of the accused-appellants of the prosecution party exceeded his right of self-defence. In this connection, the accused-appellants lawyer pointed out during the course of argument that the field of the accused-appellants was on the eastern side of the field of the prosecution party and it existed on a higher plain. He referred to the evidence of P.W. 3 in cross-examination at paragraph 15 to support his view. I, of course, find that this contention of the learned lawyer is correct as the statements of P.W. 3 at paragraph 15 clearly indicate. On the basis of this evidence, it was also submitted on behalf of the appellants that during the days when the occurrence took place, it was transplantation time when water is required in sufficient quantity. So cutting of the ridge by the prosecution party was more probable in view of the fact that water would flow to the field situated on the lower level on the cutting of the ridge in between the two fields. In this connection, he also referred to the evidence of P.W. 2 at paragraph 12 and submitted that there was dispute over flow of water. He also referred to the fardbeyan of the informant (P.W. 1) where he stated about the cutting of the ridge by the accused arid the fardbeyan of Ram Bilas Yadav (Ext.-A) where he alleged cutting of the ridge by the prosecution party. So the learned lawyer for the appellants argued that the alleged occurrence took place on account of during of the bridge as alleged by both the parties and since cutting of the ridge by the prosecution party was more probable, they were aggressors. In this connection, I am to point out that when both the parties lead evidence to prove a particular fact, the question of onus becomes irrelevant. Normally, according to the established principle of law, prosecution must stand on its own legs and must prove its case beyond all reasonable doubts in the manner as alleged. But, when the defence itself supplies the gap of the lacuna in the prosecution case, the question of onus would again become insignificant and admission of the defence shall go in favour of the prosecution. But, when the defence itself supplies the gap of the lacuna in the prosecution case, the question of onus would again become insignificant and admission of the defence shall go in favour of the prosecution. In the instant case, as per the case of the defence, prosecution party had cut the ridge of the field of the accused-appellants to allow flow of water from the filed of the latter into their own field. This circumstance would strengthen the view that being enraged at this high-handedness of the prosecution party, the accused-appellants shall have a grievance and they would have a good cause to commit the alleged aggression in which two persons were severely injured from the prosecution party and one of them died in the hospital. 6. In view of the aforesaid circumstances emerging from the evidence of both the parties as also their case the evidence of the prosecution on the point of alleged assault and its material particulars would be useless to discuss. This is also so in view of the fact that the occurrence of exchange of assault almost gets admitted from the evidence on record adduced by both the parties, documentary as well as oral evidence. 7. Before I proceed to discuss other aspects of the case, I would like to refer to the argument of the appellants lawyer that if at all the accused-appellants exceeded in exercise of their right of defence to the property and person, they would be protected by law and the evidence of murder would not be true. I shall examine the evidence from this angle also. 8. However, the evidence which I have discussed above, even though in brief, and the circumstances which have been referred to above, clearly and unmistakably go to show that the accused-appellants were aggressors because of the ridge of their field being cut by the prosecution party and they would not be protected under law of self-defence. This view is also strengthened by the fact that one person was dead at the spot in the, mutual exchange of assault and the other was also severely injured from the side of the prosecution party whereas injuries found on Ram Bilas Yadav were all simple except one injury which I shall explain later. This view is also strengthened by the fact that one person was dead at the spot in the, mutual exchange of assault and the other was also severely injured from the side of the prosecution party whereas injuries found on Ram Bilas Yadav were all simple except one injury which I shall explain later. If the prosecution party would have been aggressor, as was submitted by learned lawyer, they would not have left Ram Bilas Yadav with simple injury on the person. Ram Bilas Yadav had sustained simple injuries, some of which were 1/2" deep and others 1/4" deep, even though by sharp-cutting instrument. So all the circumstances indicate that the accused-appellants were aggressors. Ram Suchit Yadav died in the hospital on account of the injuries which have been described by Dr. F.A. Khan in his evidence as P.W. 6. Babulal Yadav had also sustained several injuries as described by Dr. Nawal Kishore Singh (P.W. 5). The evidence of P.Ws. 1, 2 and 3 on the material particulars of assault is also consistent except for certain infirmities not touching the assault in particular. So I am to hold that Suchit Yadav died due to assault on his person at the hands of the accused-appellants and Babulal Yadav also received injuries on account of assault by some of the accused-appellants. 9. Now 1 shall discuss in some greater detail the argument with respect to right of self-defence advanced on behalf of accused-appellants. It was submitted by the appellants lawyer that prosecution party had cut the ridge of their field and hence the former was the aggressor and naturally, therefore, the appellants acted in self-defence to their property and person. In this connection, I am of the opinion that simply by cutting the ridge of the appellants field the prosecution party would in no manner attack the property of the accused nor they were attempting to deprive them of their possession over the same, nor it is the case of the accused-appellants that prosecution party had any intention, to deprive them of their right and title over their field. So, there was no occasion for the accused-appellants to act in self-defence of their property. Moreover, there is no case that prosecution party had started the assault upon the appellants after cutting their ridge so that the appellants could have any occasion to act in self-defence of their body. So, there was no occasion for the accused-appellants to act in self-defence of their property. Moreover, there is no case that prosecution party had started the assault upon the appellants after cutting their ridge so that the appellants could have any occasion to act in self-defence of their body. So, the idea with respect to exercising right of private defence appears to be a puerile one. This will be explained further from the injury report produced by the appellants (Ext. B). From perusal of Ext.-B it clearly transpires that Ram Bilas Yadav (appellant) received three lacerated wounds which were all 1/4" deep on various parts of his body and he received one bruise which was 1" x 1/2" over left arm. He received three cut injuries on various parts of his body which were all 1/4" deep. So, all these injuries were simple and prosecution was not under any legal obligation to explain these simple injuries on Ram Bilas Yadav. The Doctor concerned who examined Ram Bilas Yadav was also not examined. So I do not think the injuries caused on Ram Bilas Yadav were so as to impel him, to act in self-defence and spur other appellants to cause murderous assault upon one of the members of the prosecution party. So far as injury No. 9 on Ram Bilas Yadav, which has been described by Doctor as grievous, is concerned, I think, the Doctors report is to be viewed with suspicion. This is so because the evidence was to the effect that Ram Bilas Yadav got some of his teeth broken. If any body receives an injury on the tooth breaking the same, chances are that the tooth shall become totally uprooted or it may be partly broken leaving some stump on the injured part. If there is such a case, I think, there shall be an injury on the uprooting tooth making it swell or even in a case of partly broken tooth, there shall be an injury as also presence of the stump of the tooth. The Doctor has, however, referred to this injury as "missing of lower right canine tooth". So this word missing without finding of any injury oh the injured part does not inspire confidence. The evidence was that Ram Bilas Yadav was hit with some blunt substance causing this injury No. 9. The Doctor has, however, referred to this injury as "missing of lower right canine tooth". So this word missing without finding of any injury oh the injured part does not inspire confidence. The evidence was that Ram Bilas Yadav was hit with some blunt substance causing this injury No. 9. So from all circumstances, it appears that the Doctor chose to make a particular injury as grievous and cunningly referred to the same as missing of canine tooth. 10. A criminal case is decided on preponderance of probabilities and circumstances and, in the instant case, from the evidence adduced on behalf of both the parties, it is abundantly clear that the accused-appellants were aggressors so far as occurrence of assault is concerned and hence I do not think they are entitled to exercise of right of private defence to property and person. So conviction of the accused-appellants is bound to be confirmed. 11. So far as appellants sentence is concerned, all of them were sentenced to undergo life imprisonment for the charge under Secs. 302/34 of the Indian Penal Code. The manner in which the assault was committed upon the members of the prosecution party leaving one person dead and one of them severely injured, I do not think the accused-appellants were acting with pious intentions and the evidence which I have discussed above has revealed already that they had in all probabilities committed the assault upon the prosecution party being enraged at their fields ridge being out. So in this view of the matter, the charge under Sec. 34, I.P.C. was also very much brought home by evidence and circumstances on the record. The trial Judge was lenient in directing the sentences under various sections against the accused-appellants to run concurrently. So in all circumstances, the accused-appellants shall undergo rigorous imprisonment in totality, even though they were separately sentenced under various sections as stated above. So I do not think there is any necessity to interfere with the sentence also. 12. In the result, this appeal is dismissed and the order of sentence is hereby confirmed. The bail-bonds of the appellants are cancelled and they are directed to surrender to serve out the remaining period of sentence. R.N. Prasad, J. I agree.