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2006 DIGILAW 97 (JHR)

Parbati Marandi v. State Of Bihar (Now Jharkhand)

2006-02-07

M.Y.EQBAL, N.DHINAKAR

body2006
JUDGMENT 1. The appellants, three in number, were arrayed as A-1 to A-3 respectively before the 7th Additional Sessions Judge, Dumka. On being tried under Section 302 read with Section 34 of the IPC, they were found guilty and each one of them was sentenced to imprisonment for life. They were also found guilty under Section 323 read with Section 34 of the IPC for which each of them was sentenced to suffer three months R.I. 2. The allegation against the appellants in the above charge is that they, in furtherance of common intention of each of them, committed the murder of Babulal Marandi (D-1) and Chandrai Marandi (D-2) and during the course of same transaction, they also caused simple injuries to PW 7 Sumi Soren and PW 9 Somat Murmu. 3. Babulal Marandi (D-1) is the husband of PW 9 Somat Marandi. Chandrai Marandi (D-2) is the elder brother of Babulal Marandi (D-1). P.W.7 Sumi Soren is the mother of the 1st appellant Parbati Marandi. The 2nd appellant Chunda Kisku is the husband of the 1st appellant and the 3rd appellant Munshi Kisku is the son of appellants 1 and 2. 4. The facts which led to the prosecution of the appellants and their ultimate conviction can be briefly summarized as follows: On 18-6-1986 at about 7.00 am, D-1 Babulal Marandi and D-2 Chandrai Marandi were ploughing the land in dispute on the direction of P.W.7 Sumi Soren. They were also requested to cut the plum tree stand-ing on the eastern ridge of the field. At that time, A-l to A-3, armed with iron rod, Gupti and Khanti respectively, went there, The 1st appellant Parbati Marandi gave a blow to Sumi Soren (P.W.7) on her head with the iron rod. The 3rd appellant Munshi Kisku assaulted P.W.7 with Khanti and further gave a blow on the head of P.W.7. A-2 Chunda Kisku assaulted Chandrai Marandi (D-2) with gupti on his head and A-3, Munshi Kisku assaulted D-2 with Khanti on his head causing injury as a result of which he fell down and became unconscious. Seeing this, Babulal Marandi (D-1) became scared. He started running from the place. All the appellants chased him and after surrounding him, caused injuries on his person. The 3rd appellant Munshi Kisku gave a blow on the head of Babulal Marandi (D-1) with Khanti on his head. Seeing this, Babulal Marandi (D-1) became scared. He started running from the place. All the appellants chased him and after surrounding him, caused injuries on his person. The 3rd appellant Munshi Kisku gave a blow on the head of Babulal Marandi (D-1) with Khanti on his head. The 2nd appellant Chunda Kisku gave a Gupti blow on the head of D-1 who fell down due to the injuries. The first appellant Parbati Marandi beat D-1 with iron rod. On hearing the cries of P.W.9. P.Ws.3, 4, 6 and 8 rushed to the place. They found P.W.7 and P.W.9 with injuries and Babulal Marandi (D-1) and Chandrai Marandi (D-2) lying dead on the ground. Thereafter, Fardbeyan was given at the police station by P.W.9 Somat Murmu at 11.30 a.m. which is Ext.3 (FIR). The investigation in the crime was taken up during which inquest was conducted. P.Ws.7 and 9, who had injuries on their persons, were referred to the hospital for treatment. 5. PW. 11, the Medical Officer, examined Sumi Soren (PW.7) and he found a lacerated cut injury measuring 1" x 1/8" bone deep at parietal area of the scalp. He also noticed one abrasion measuring about 1" x 1/8" x 1/4", about 1" above left wrist joint. The patient complained of pain and the doctor noticed swelling on right shoulder joint. The doctor issued Ext.8 with his opinion that the injuries found by him on the person of PW.7 Sumi Soren are simple in nature. The doctor further examined PW.9 Somat Murmu and noticed lacerated cut injury 2" x 1/8" x bone deep on right parietal area of scalp. He also noticed an abrasion measuring 2" x 1/2" at the lateral aspect of right forearm on its middle portion. He, thereafter, issued Ext.8/1, the injury report, with his opinion that the injuries found on PW.9 Somat Murmu are simple in nature. 6. In the meantime, the Investigating Officer sent the dead bodies of D-1 Babulal Marandi and D-2 Chandrai Marandi to the hospital with requisitions requesting the doctor to conduct autopsy. On receipt of the requisition, PW.12 Dr. M.M.P. Sinha conducted autopsy on the body of Babulal Marandi (D-1) and found the following injuries: i) On injury with lacerated margin on the left parietal occipital region of the scalp 2" x 1/2" x deep to brain cavity. On receipt of the requisition, PW.12 Dr. M.M.P. Sinha conducted autopsy on the body of Babulal Marandi (D-1) and found the following injuries: i) On injury with lacerated margin on the left parietal occipital region of the scalp 2" x 1/2" x deep to brain cavity. Fracture of left and right temporal and occipital bones into pieces was found. ii) One injury having lacerated margin on the left post auricular region 1" x 1/2" x bone deep and, iii) Bruise on the left side, lateral aspect left arm 2 1/2" x 1". The doctor Issued post mortem certificate (Ext.9) with his opinion that the death was on account of profuse intracranial hemorrhage following injury No. (1) leading to shock. According to the doctor, injury No. (i) could have been caused by a hard and blunt substance like iron rod, khanti or lathi. Injury Nos. (ii) and (iii) could have also been caused by hard and blunt substance like iron road, khanti or lathi. The doctor conducted autopsy on the dead body of Chandrai Marandi (D-2) and found the following injuries: i) One injury having lacerated margin on the left parietal temporal region scalp - 4" x 1 x deep to brain cavity. Left parietal and temporal bones were fractured into pieces, ii) One injury having lacerated margin on the occipital left side scalp 1" x 1/2" x bone deep. The doctor issued post mortem report (Ext.9/1) with his opinion that the death was due to massive intracranial haemorrhage following injury No. (i) leading to shock and death. Time elapsed since death was about 30 hours prior to the autopsy. He was also of the opinion that injury Nos. (i) and (ii) could have been caused by hard and blunt substance like lathi, khanti or iron road. 7. The investigating officer after the completion of investigation filed the final report against the appellants. 8. The appellants were questioned under Section 313 CrPC on the incriminating circumstances appearing against them which they denied and pleaded complete Innocence. 9. Learned Counsel appearing on behalf of the appellants, relying on Ext. A (a will) marked through DW. 7. The investigating officer after the completion of investigation filed the final report against the appellants. 8. The appellants were questioned under Section 313 CrPC on the incriminating circumstances appearing against them which they denied and pleaded complete Innocence. 9. Learned Counsel appearing on behalf of the appellants, relying on Ext. A (a will) marked through DW. 1 Stefan Soren, contends that the property in dispute was in possession of the appellants and that when the witnesses and the deceased intervened to take forceful possession of the property, the occurrence took place and therefore the appellants are entitled to the exercise of right of private defence of property. 10. On the above contention, we have heard Mr. Alok Lal, learned APP appearing on behalf of the State. 11. It is not in dispute that the occurrence took place at 7.00 am on 18-6-1986. It is also not in dispute that the complaint was given immediately at 11.30 a.m. on the same day by PW.9 at the police station. It is also not in dispute that two persons died during the occurrence and that two other persons suffered Injuries. It is also not in dispute that the appellants caused injuries on the two deceased persons as well as on the two witnesses. This Court has, therefore, no difficulty in coming to a conclusion that Babulal Marandi (D-1) and Chandrai Marandi (D-2) died on account of homicidal violence and that during the course of the said transaction, two witnesses, namely PW.7 Sumi Soren and PW.9 Somat Murmu, also suffered injuries. The above fact stands proved through the evidence of PWs.2, 3, 4, 7 and 9 who were examined to speak about the occurrence, Their evidence is also corroborated by the two Medical Officers, one who examined the injured witnesses and issued injury reports and the other who conducted autopsy on the two dead bodies and issued post mortem certificates. We, therefore, hold that all of them suffered injuries and that two of them died on account of the injuries suffered by them and that those injuries were inflicted by the appellants since the appellants themselves have admitted their presence at the scene of occurrence and also the fact that they caused injuries on the persons of the deceased. 12. We, therefore, hold that all of them suffered injuries and that two of them died on account of the injuries suffered by them and that those injuries were inflicted by the appellants since the appellants themselves have admitted their presence at the scene of occurrence and also the fact that they caused injuries on the persons of the deceased. 12. Though according to the counsel appearing for the appellants, the appellants did cause injuries on the two deceased persons as well as the two witnesses in exercise of the right of private defence of property, the appellants did not produce any acceptable material either before the trial Court or even at this stage in the appeal to probabilise the said defence. Ext. A is said to be a Will, marked by DW. 1, which we have perused. The case of the appellants is that the Will was executed by the executor bequeathing the disputed land in favour of the appellants. According to the learned Counsel, the husband of PW.7 executed the said will. It is to be noted at this stage that the said argument of the learned Counsel is not based upon any material before the Court. When PW.7 was in the witness box, the will was not even shown to her to probabilise the defence theory that the property in question was in possession of the appellants and that on the date of incident the witnesses went there to take forceful possession. The Will (Ext.A) is on an ordinary paper and not even registered. DW.1 did not even whisper a word as to the contents of the Will, In the above background we find it difficult to hold that on the date of incident, the appellants were in possession of the disputed land and that the witnesses as well as the two deceased persons had gone there to take forceful possession. When the appellants have taken a specific plea of self-defence, then it was upon them to prove the said fact under Section 105 of the Evidence Act. In the case of Periasami and Anr. When the appellants have taken a specific plea of self-defence, then it was upon them to prove the said fact under Section 105 of the Evidence Act. In the case of Periasami and Anr. v. State of Tamil Nadu , the Supreme Court held as follows: Under Section 105 of the Evidence Act a rule of burden of proof is prescribed that the burden is on the accused to prove the existence of circumstances bringing the case within any of the exceptions "and the Court shall presume the absence of such circumstances". The said rule does not whittle down the axiomatic rule of burden (indicated in Section 101) that the prosecution must prove that the accused has committed the offence charged against. The traditional rule that it is for prosecution to prove the offence beyond reasonable doubt applies in all criminal case except where any particular statute prescribes otherwise. The legal presumption created in Section 105 with the words "the Court shall presume the absence of such circumstances" Is not intended to displace the aforesaid traditional burden of the prosecution. 13. It is therefore clear that it is for the appellants to establish the defence version and they not having established their right of private defence, this Court cannot but presume the absence of the circumstances contemplated under Sections 105 and 101 of the Evidence Act, 1872. We, therefore, find it difficult to accept the defence theory that the appellants caused injuries on the deceased persons in the exercise of their right of private defence. 14. The case of the defence is also to be rejected on the facts of this case, as the evidence of the witnesses supported by the medical evidence show that PW.7 and PW.9 were attacked and injuries were inflicted. When Chandrai Marandi (D-2) intervened, he was beaten to death. Seeing this, when Babulal Marandi (D-1) attempted to run away from the place, the accused chased him and after surrounding him, inflicted injuries on Babulal Marandi causing his death. In the above background, the appellants cannot take a plea that they caused injuries on the deceased persons in exercise of their right of private defence of property. We do not find any merit in the plea of the appellants that they attacked the prosecution witnesses and the deceased persons in exercise of their right of private defence of property. In the above background, the appellants cannot take a plea that they caused injuries on the deceased persons in exercise of their right of private defence of property. We do not find any merit in the plea of the appellants that they attacked the prosecution witnesses and the deceased persons in exercise of their right of private defence of property. We, accordingly, reject the said version of the defence. 15. On going through the evidence of the witnesses, two of whom are injured, which is also supported by the medical evidence, we cannot but uphold the conviction of the appellants. Accordingly, the conviction and sentence of the appellants are confirmed. This appeal is, accordingly, dismissed. It is reported that the appellants are on ball. Their bail bonds stand cancelled. The learned Additional Sessions Judge will take all coercive steps to commit them to serve out the remaining part of the sentences.