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2001 DIGILAW 592 (PAT)

Harendra Nath Mishra v. State Of Bihar

2001-07-18

B.N.P.SINGH, R.N.PRASAD

body2001
Judgment B.N.P.Singh, J. 1. These three appeals arise from the common judgment dated 27th July, 1987, passed by 5th Additional Sessions Judge, Rohtas in Sessions Trial No. 77 of 1981. They have been heard together and are being disposed of by this judgment. 2. Appellants Devendra Nath Mishra along with Deodhari Choudhary suffered conviction under Section 302 of the Indian Penal Code (IPC) and both were sentenced to undergo life imprisonment. These two appellants also suffered conviction under Section 27 of the Arms Act and were sentenced to undergo rigorous imprisonment for three yeas. However, both the sentences were directed to run concurrently. Appellants Radheyshyam Choudhary, Ramjanam Choudhary, Srilal Choudhary, Choudhary Abinas Prasad and Harendranath Mishra suffered conviction under Section 302/34 IPC and were sentenced to suffer life imprisonment. 3. The factual matrix are that as paddy crops harvested from 1.61 acres of land, which situate in village Khairahi, were kept in the field for putting them in bundles, Sri Krishanditya Narain Tiwary (PW 5) along with Ramparvesh Choudhary (deceased) and Radha Kishun Choudhary (PW 1) came to the field. Shortly after he arrived in the field and was waiting for arrival of the labourers, he noticed the appellants coming from a distance of 200-250 yards from the field. It was alleged that soon after the appellants came, appellant Devendra Nath Mishra forbade Rampravesh Choudhary to touch the paddy crops harvested by him, which was strongly retorted by Rampravesh Choudhary saying that as he had sown the paddy crops and harvested the same, he would also remove the same. It is alleged that appellant Devendra Nath Mishra, exhorted his companions to eliminate Rampravesh Choudhary and shortly thereafter, both Devendra Nath Mishra and Deodhari Choudhary took recourse to firing which hit Rampravesh Choudhary, who ran towards north and crossing a canal dropped to the field of Ganesh Choudhary. Appellants were suggested to have again opened fire conjointly and retired from the place of occurrence and with these narrations, fardbeyan of Krishanditya Narain Tiwary was recorded by the Police at 1 p.m. on 3rd of December, 1979 following which investigation commenced, on conclusion of which Police laid charge-sheet in the Court and the appellants were eventually put on trial. In the eventual trial, prosecution examined altogether five witnesses and defence examined three witnesses to counter the allegations attributed to the appellants. 4. In the eventual trial, prosecution examined altogether five witnesses and defence examined three witnesses to counter the allegations attributed to the appellants. 4. Defence of the appellants, as it emerged from evidences placed on record, was that appellant Devendra Nath Mishra was claiming title over the disputed land on the strength of a deed of will executed in his favour by his mother-in-law. Among those witnesses, who were examined at trial. PW 1 Radha Krishna Choudhary. PW 3 Rameshwar Choudhary and PW 5 Krishanditya Narain Tiwary claimed to be ocular witnesses of the occurrence. They had rendered coherent statements before the trial Court that shortly after Krishanditya Narain Tiwary along with his bataidars, came to the field to collect paddy crops for tying them in bundles, appellants came with rifles holding with them and two of them instantly took recourse to firing causing gun shot injuries to Rampravesh Choudhary, who succumbed to them instantly. The doctor who carried out autopsy over the dead body, noticed corresponding injuries on the deceased. 5. The findings recorded by the trial Court was sought to be assailed by the learned counsel for the appellants on premises that though in the early version of the prosecution, plot No. 703 appertaining to Khata No. 49 which situates in village Khairahi was suggested to be the place of occurrence, the same was eventually changed by the prosecution suggesting the field of Ganesh Choudhary to be the place of occurrence, and hence the prosecution was guilty of introducing distorted version about the place of occurrence. Leaned counsel would urge that though witnesses had been narrating before the trial Court about there being copious blood at the place of occurrence, as the Investigating Officer was not examined at trial, objective finding could not be placed on record and hence, defence was seriously prejudiced on that count also. It is urged that if evidence of the ocular witnesses, who were PWs 1, 3 and 5, was considered to be true on its face value that Rampravesh Choudhary sustained injuries on his person at plot No. 703, considering the seriousness of injuries, which he is suggested to have sustained on his person, it was most unlikely that he would cross the canal which was 5 feet in width and would drop in the land of Ganesh Choudhary. 6. 6. About the credibility of the prosecution witnesses, it was sought to be urged that evidence of these ocular witnesses was never suggestive about an individual appellant to be the author of a particular injury. Contentions were raised on behalf of the appellants that though Dukhan Choudhary who was shown to be one of the labourers and had accompanied Rampravesh Choudhary to the field, was not examined at trial by the prosecution and hence, the prosecution was guilty of suppressing material evidence. About genesis of the alleged incident, it was alleged that it would appear from the plethora of documents placed on behalf of the appellants on record that the land belonged to Devendra Nath Mishra and Krishanditya Narain Tiwary had lost his case, who claimed the land in question on the basis of a forged document. About the injuries shown to have been sustained by the deceased from a distance of about 5 yards or 6 yards, it was argued that the doctor found six pellets and one cork while conducting autopsy over the dead body and such injuries possibly could not have been sustained by the deceased unless he was hit from a close-range and the last argument canvassed on behalf of the appellants was that even if the prosecution allegations attributed to the appellants were considered to be true, there was no attribution against five appellants barring appellants Devendra Nath Mishra and Deodhari Choudhary about they having taken recourse to firing or committing any overtact which can attract mischief of Section 34 IPC. In quick succession, it is urged that mere fact that they came together was not sufficient to indicate that they had common intention to commit murder of Rampravesh Choudhary. 7. Now adverting to the evidences placed on record and the criticism made by the learned counsel for the appellants, one cannot help feeling that positive case of the prosecution had been that Rampravesh Choudhary sustained injuries in plot No. 703 and shortly after sustaining injuries, he ran towards north crossing a canal and dropped in the field of Ganesh Choudhary. Now adverting to the evidences placed on record and the criticism made by the learned counsel for the appellants, one cannot help feeling that positive case of the prosecution had been that Rampravesh Choudhary sustained injuries in plot No. 703 and shortly after sustaining injuries, he ran towards north crossing a canal and dropped in the field of Ganesh Choudhary. No witness examined at trial by the prosecution had made any statement in positive terms about there being blood in plot No. 703 where Rampravesh Choudhary was shown to have firstly sustained injuries and one would find that there was evidence of PW 1 about there being copious blood at the place where Rampravesh Choudhary dropped to the ground, and as has been urged, evidence of all the witnesses had been unequivocal suggesting that the deceased had dropped to the ground in the field of Ganesh Choudhary after crossing the canal and in this view of the matter, it cannot be legitimately argued that the prosecution was guilty of introducing distorted version about the place of occurrence. 8. True it is that PW 1 was not in a position to say as to whether he noticed trail of blood right from plot No. 703 to the land of Ganesh Choudhary where Rampravesh Choudhary eventually dropped to the ground on sustaining injuries on his person. Though the Investigating Officer was not examined at trial, which of course, would have been of some assistance, but merely due to non-examination of the Investigating Officer, the prosecution case would not suffer from infirmity particularly when evidences of ocular witnesses have been coherent about the place where the deceased dropped to the ground on sustaining injuries on his person. It would appear from the findings recorded by the trial Court that though blood stained earth was collected by the Investigating Officer for its chemical analysis but unfortunately, the report of the Chemical Examiner could not be placed on record but for that too, the prosecution is not to suffer. 9. If evidence of Radha Krishna Choudhary (PW 1), was to be taken into consideration, about the sequence in which the assailants fired shots at the deceased, the deceased firstly sustained gun shot injuries in his chest and by other gun shot injury his skull was blown out. 9. If evidence of Radha Krishna Choudhary (PW 1), was to be taken into consideration, about the sequence in which the assailants fired shots at the deceased, the deceased firstly sustained gun shot injuries in his chest and by other gun shot injury his skull was blown out. It is not unlikely that the deceased on sustaining gun shot injuries on his chest would cross few yards to the field of Ganesh Choudhary. True it is that at some places in their cross examination, the witnesses had been stating that both the shots were fired simultaneously by the assailants, but minute observations made by the witnesses when they are frightened, cannot be expected. Radha Krishna Choudhary (PW 1) would also state in his evidence that after Rampravesh Choudhary dropped to the ground in the field of Ganesh Choudhary, appellant Deodhari Choudhary fired a shot and if this part of the evidence of PW 1 was accepted, it was not unlikely that skull was blown out from the gun shot injuries sustained by Rampravesh Choudhary at the hands of Deodhari Choudhary. The coherent narration made by the witnesses about the place where the deceased dropped to the ground would also get corroboration from the inquest report which would explicitly suggest that the Investigating Officer noticed a dead body in the field of Ganesh Choudhary. 10. Similar had been the evidence of Rameshwar Choudhary (PW 3) about he having gone to the field where paddy crops harvested from the field were to be kept in bundles. As has been stated by him, both deceased Rampravesh Choudhary and Radha Krishna Choudhary (PW 1), who were bataidars of the land, had already reached the field in the company of the informant Krishanditya Narain Tiwary. It was stated by him that shortly after he reached in the field, the appellants were noticed coming with fire arms and after Devendra Nath Mishra desisted Rampravesh Choudhary from touching the paddy crops, which was retorted by the latter, he along with Deodhari Choudhary took recourse to firing. Evidence of the informant was also in similar tune about he having visited the field with Radha Krishan Choudhary and Rampravesh Choudhary for keeping the paddy crops harvested from the field in bundles. Evidence of the informant was also in similar tune about he having visited the field with Radha Krishan Choudhary and Rampravesh Choudhary for keeping the paddy crops harvested from the field in bundles. It was stated that shortly after their arrival, the appellants were noticed carrying fire-arms with them and appellant Devendra Nath Mishra and appellant Deodhari Choudhary took recourse to firing when Rampravesh Choudhary did not obey their command not to touch the paddy crops. 11. The doctor, who held autopsy over the dead body, found punctured wound with lacerated and inverted margin on right side of head with fracture of skull bones. He also noticed lacerated wound on left axilla damaging the skin and fats muscles. There was also punctured wound on left side of chest with fracture of ribs. It would seem that findings of the doctor recorded during autopsy over the dead body were in corresponding terms with the account of injuries sustained by the deceased. 12. While Radha Krishna Choudhary (PW 1) was bataidar of Krishanditya Narain Tiwary (informant), Rampravesh Choudhary was his brother and their presence at the site of occurrence was quite probable and simply because they are said to be interested witnesses, their evidence which are coherent, cannot be thrown into wind on that score alone. Occurrence took place at 10.30 a.m. on 3.12.1979 and the first information report was recorded by the Police at 1 p.m. on the same day while the distance of the police station from the place of occurrence was five miles and as such, the informant has lost no time to set Police in motion. 13. Though suggestion was given to PW 1 that since Krishanditya Tiwary (informant) had executed mortgage bond of his land to appellant Deodhari Choudhary and the latter had been asking for money, a false prosecution was launched against the appellant but there was no cogent evidence on record to buttress this contention on behalf of the appellants. Though water rent receipts and canal parchas were brought on record by the defence but they did not bear plot number etc. in absence of which there cannot be presumption that they related to the disputed land. 14. Simply because PW 1 had deposed in a dacoity case, as was stated by DW 1, would not make him incredible. Though water rent receipts and canal parchas were brought on record by the defence but they did not bear plot number etc. in absence of which there cannot be presumption that they related to the disputed land. 14. Simply because PW 1 had deposed in a dacoity case, as was stated by DW 1, would not make him incredible. True it is that the genesis of the occurrence was land dispute between the parties, as both deceased and appellant Devendra Nath Mishra had put their rival claims over the land in question. Admittedly, appellant Devendra Nath Mishra had got decree in his favour regarding title of the land in question but this fact cannot be lost sight of that Krishanditya Narain Tiwary claimed to be in cultivating possession of the land till he was evicted in due course by process of law. As was stated by PW 1, name of the informant had been recorded also in the record of rights. Though the appellants had placed reliance on Exhibits A to D to claim their title over the disputed land, this fact cannot be lost sight of that even at trial, they did not claim possession over the disputed land, in positive terms and even no suggestion was given to the prosecution witnesses about Devendra Nath Mishra having been put in possession of the land. Though the learned counsel for the appellants would faintly argue to justify the action taken by the appellant in purported exercise of right of private defence which was subsequently withdrawn, rightly the action resorted to by appellant Devendra Nath Mishra and his companions cannot be justified on the anvil of exercise of right of private defence as while Rampravesh Choudhary was quite unarmed, the appellants came there holding rifles with them and the appellants were not justified to take recourse to firing in anticipation of danger apprehended by them by those who were without arms. 15. The genesis of the claim of the prosecution was a deed of will executed by uncle of the informant. He claimed to be in cultivating possession of the land in dispute for last 20 years and the land in question, as was stated by the witnesses, was given on batai to Rampravesh Choudhary and Radhakisun Choudhary since last more than five years. He claimed to be in cultivating possession of the land in dispute for last 20 years and the land in question, as was stated by the witnesses, was given on batai to Rampravesh Choudhary and Radhakisun Choudhary since last more than five years. Though Devendra Nath Mishra and Deodhari Choudhary hail from a different village, rest of the appellants hail from village Khairahi. This fact also cannot be lost sight of that plot No. 703 appertaining to Khata No. 49 measuring 1.61 decimals of land situate in village Khairahi. There has been evidence of none else but PW 1 that preceding the fateful day, the appellants hailing from village Khairahi had tried to plough the disputed land secretly to claim possession over the land. Rightly, the trial Court in its findings held that these appellants were interested that cultivation of the land would be given to them if Devendra Nath Mishra got possession of the land fn question. 16. After marshalling the evidence placed on record including that of the doctor who found corresponding injuries on the person of the deceased caused by fire-arms, the attribution made to appellants Devendra Nath Mishra and Deodhari Choudhary about they being authors of the injuries sustained by the deceased cannot be disputed and the findings recorded by the trial Court rendering verdict of guilt and convicting them under Section 302, IPC coupled with Section 27 of the Arms Act was the only possible conclusion which could have been drawn. Likewise, findings recorded by the trial Court in respect of rest of the appellants finding them guilty under Section 302/34, IPC in view of the fact that they were interested in the affairs of appellant Devendra Nath Mishra in getting possession of the land in dispute cannot be possibly questioned. As has been the evidence of the witnesses, the appellants were holding arms with them and rightly it was not for display but they must would have been prepared to commit overtact in furtherance of common intention of those whom they accompanied. 17. Having taken into consideration the evidences placed on record which have been meticulously appreciated by the trial Court, I find no good reason for interference with the findings recorded in the impugned judgment. All the three appeals, being meritless, are accordingly dismissed. The appellants are on bail. 17. Having taken into consideration the evidences placed on record which have been meticulously appreciated by the trial Court, I find no good reason for interference with the findings recorded in the impugned judgment. All the three appeals, being meritless, are accordingly dismissed. The appellants are on bail. Their bail bonds are cancelled and the trial Court is directed to take them into custody forthwith to serve out the sentence.