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2004 DIGILAW 658 (PAT)

Sitaram Chamar v. State of Bihar

2004-07-08

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JUDGMENT AFTAB ALAM, J.:- The three appellants before us stand convicted under section 302/34 and 323 of the Penal Code and sentenced to undergo rigorous imprisonment for life and three months respectively under the two sections. 2. The appellants faced the charge under sections 302/34 for causing the death of one Kanhai Ram and under section 323 for causing simple hurt to his wife Dulari Devi (PW 1) and his brother Raj Kumar, the informant, PW 2. 3. We find that the appeal can be disposed of on a short point and hence, we propose to present here only such of the facts of the case that are relevant for the disposal of the appeal. 4. It is an admitted position that the assault on the deceased Kanhai Ram, his brother Raj Kumar Ram and his wife, Dulari Devi took place on the question of harvesting of crop over a piece of land. The land in question (hereinafter referred as 'the disputed land) bears plot no. 482 under khata no. 118 and has an area of 0.35 decimals. It is situate in village Kandi within Kudra P.S. in the district of Rohtas. The disputed land was acquired by the State Government under the provisions of the Land Ceiling Act, as surplus land of some land-holder. After acquisition the land was given to the deceased Kanhai Ram under section 27 of the Land Ceilding Act and a card (referred to by the witnesses as the red card) was issued in his favour on 26.3.1981. 5. The occurrence took place on 22.11.1987. 6. According to the prosecution case, the three appellants were harvesting the paddy crop standing over the disputed land. Kanhai Ram went there and asked them not to harvest the crop, stating that he was given the red card for the land. On this appellants 1 and 3 hit him with lathies. The assault on Kanhai Ram was witnessed by his brother Ram Kumar (the informant) and his wife Dulari Devi who were cutting grass in the nearby fields. They went running to the disputed land where the appellants assaulted them too with lathies. 7. On this appellants 1 and 3 hit him with lathies. The assault on Kanhai Ram was witnessed by his brother Ram Kumar (the informant) and his wife Dulari Devi who were cutting grass in the nearby fields. They went running to the disputed land where the appellants assaulted them too with lathies. 7. Here it is significant to note that though the card in respect of the land was issued in favour of Kanhai Ram in 1981, in the F.I.R. there is a clear and unambiguous statement that the paddy crop was sown over the land by the appellants and it was that crop that was being harvested by them. The relevant sentence in the fard-e-bayan reads as follows : "MERE BHAI KANHAI RAM KO LAL CARD MAIN KUCH ZAMIN MILA HUWA HAI JIS MAIN MERE GAON KE SITARAMWALD KISHUAN RAM IS BAR DHAN LAGAI HUE HAI OOSI DHAN KO SITARAM WAGAIRA DHAAN KAAT RAHE THEY. DHAN KATTE DEKH KAR MERE BHAI KANHAI RAM OOSE MANA KARNE GAI YEH ZAMIN MUJHE LAL CARD MAIN MILA HAI 8. Before the trial court both Raj Kumar, PW 4 and Dulari Devi, PW 1 changed this statement and said that the crop was sown by them. But the I.O. Birendra Rai, PW 9 in para 7 of his deposition clearly stated that Raj Kumar Rai in his subsequent statement had said before him that the crop in question was sownover the disputed land by his villager Sitaram, son of Kishun Ram and it was that crop that he was cutting away. The I.O. further stated that the witness Dulari Devi had also said that the paddy was sown over the disputed land by Sitaram, appellant no.1 9. That being the position we are of the view that the statements of PWs 1 and 2 before the trial court that the paddy crop over the disputed land was sown by them are un-true and fit to be rejected. The paddy crop for the harvesting of which the dispute took place was shown by the appellants and they were, therefore, lawfully entitled to harvest it. 10. The paddy crop for the harvesting of which the dispute took place was shown by the appellants and they were, therefore, lawfully entitled to harvest it. 10. Further, from the evidence of PW 5, the doctor who held post-mortem on the body of Kanhai Ram and from his postmortem report it appears that the deceased had-the following three injuries on his person: "(i) One defused swelling over the right temporal region 3" x 3" (ii) "One transverse bruise over the anterior aspect of right upper arm 3" x 11/2". (iii) One transverse bruise over the front of right elbow 3" x 1". 11. All the three injuries were caused by lathies and the first injury on the head proved fatal 12. According to the ocular evidence, Kanhai Ram was assaulted by appellants 1 and 3. He received a single blow on head that proved fatal. The other two injuries were on his right upper arm and elbow which were simple in nature in other words, one of the appellants gave a single blow to Kanhai Ram on his head and it cannot be said that the assault was made with the intent to kill him. The fact that the appellants were harvesting the paddy crops sown by them coupled with the fact that a single lathi blow was given to Kanhai Ram on his head, to my mind, clearly brings the case within Exception 2 under section 300. Exception 2 reads as follows : "Exception 2. 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 person 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." 13. I am, therefore, of the view that it was a case of culpable homicide punishable under section 304 Part II and not under section 302 of the Penal Code 14. On hearing Mr. Arun Kumar Tripathi who assisted us as Amicus Curiae and Mr. Ganesh Pd. Jayaswal, learned Addl. I am, therefore, of the view that it was a case of culpable homicide punishable under section 304 Part II and not under section 302 of the Penal Code 14. On hearing Mr. Arun Kumar Tripathi who assisted us as Amicus Curiae and Mr. Ganesh Pd. Jayaswal, learned Addl. P.P appearing for the State and on perusal of the materials on record, we are satisfied that the trial court was right in holding the appellants guilty of causing death of Kanhai Ram and causing hurt to Raj Kumar Ram and Dulari Devi by assaulting them with lathies but it was in error in applying section 302 of the Code to them and sentencing them under that section. I would, therefore, alter the conviction of the appellants from section 302/34 to one under 304 Part II/34 and 323 of the Penal Code. Their sentences are accordingly modified to the period of imprisonment already undergone by them. In addition each of the three appellants is sentenced to pay a fine of Rs.2000/- and in default to undergo rigorous imprisonment for six months. 15. Appellant no.1 Sitaram Chamar was denied bail by this court. He would, therefore, be released from jail as soon as he pays the fine of Rs. 2000/- or completes in jail a period of six months from today in default of payment of fine. Appellants 2 and 3 were released on bail by this court. They are allowed six weeks time from today to pay the fine of Rs. 2000/- each. In case they fail to deposit the fine within six weeks from today, the trial court shall take all coercive measures for securing their arrest and to make them undergo their imprisonment in default of payment of fine. 16. If the fines are collected from the appellants, the entire sum shall be paid to Dulari Devi, the wife of the deceased or in case she is no more to their children. 17. In the result, this appeal is dismissed subject to the modification in the conviction and sentence of the appellants. I agree.