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2008 DIGILAW 220 (PAT)

Ram Swarup Thakur v. State Of Bihar

2008-02-01

SHAILESH KUMAR SINHA, SHIVA KIRTI SINGH

body2008
Judgment 1. All the three appellants are aggrieved by the judgment and order under appeal dated 28.4.2003/30.4.2003 passed by Additional Sessions Judge No. 4,Khagaria in Sessions Case No. 233/94, arising out of Gogari (Pasraha) P.S. Case No. 37 of 1994, whereby appellant No. 1 Ram Swarup Thakur and appellant No. 2 Radhe Thakur have been convicted for the offence under Section 302 read with Section 149 of the IPC, appellant No. 3 Lucho Thakur has been convicted under Section 302, IPC and all of them have been awarded imprisonment for life. Appellant No. 3 Lucho Thakur has been further convicted for the offence under Section 148, IPC and Section 27 of the Arms Act and has been awarded further R.I. for three years on each count. In his case, the sentences are to run concurrently. 2. The prosecution case as appearing from the fardbeyan of Tribeni Thakur (PW 6) recorded by the Officer-in-Charge of Gogari (Pasraha) P.S. on 17.2.1994 at 8.00 a.m. is to the effect that on that date at about 6.00 a.m., informant Tribeni Thakur and his brother Wakil Thakur (PW 1) were taking possession of a house, for which there was already a dispute with his Gotiya Ram Swarup Thakur (Appellant No. 1). At that time, his friend Gulten Das (deceased) was standing at the Darwaza of the informant. Ram Swarup Thakur (Appellant No. 1) was having a verbal altercation with the informant party and suddenly co- villagers, namely, (1) Kamali Thakur, (2) Radhe Thakur (Appellant No. 2), (3) Lucho Thakur (Appellant No. 3), (4) Ambika and (5) Bindehwari Sao also came at the Darwaza of the informant. Lucho Thakur was having a pistol in his hand. Radhe Thakur was taking Gulten Das towards the road by catching hold of him. As soon as he reached on the road, Lucho Thakur fired a shot, which hit in the abdomen of Gulten Das, who fell down and died instantaneously. 3. The case was investigated by the Officer-in-Charge, Pasraha P.S., who came to the place of occurrence and recorded the fardbeyan on the basis of the information of the occurrence given by Chaukidar Bhola Sao. 3. The case was investigated by the Officer-in-Charge, Pasraha P.S., who came to the place of occurrence and recorded the fardbeyan on the basis of the information of the occurrence given by Chaukidar Bhola Sao. The inquest in respect of the dead body of Gulten Das appears to have been prepared at 7.30 a.m. of 17.2.1994 and thereafter the fardbeyan of the informant was recorded at 8.00 a.m. The dead body was sent for post-mortem examination and after recording the statements of witnesses and completing the investigation, on 21.6.1994 chargesheet was submitted against all the six accused persons, including the appellants. Accused Kamli Thakur died during trial. Ambika Thakur alias Satish Thakur was found to be a juvenile and therefore his trial was separated. Accused Bindeshwari Sao appears to have absconded, thus did not face trial. After cognizance, the case was committed to the Court of Session where the appellants pleaded not guilty to the charges and faced trial. They have been convicted and sentenced by the judgment and order under appeal, as noticed earlier. 4. The defence of the accused persons is general denial of the occurrence and further defence is that deceased Gulten Das received injuries and died on account of the firing made by the informant party, for which Gogari (Pasraha) P.S. Case No. 39/94 was instituted on the basis of the fardbeyan of Chaukidar Bhola Sao. The formal FIR and the fardbeyan of that case have been exhibited as Exts. C and B respectively. 5. The prosecution has examined altogether eight witnesses in support of its case. PW 1 Wakil Thakur and PW 2 Anup Thakur are brother and father respectively of informant Tribeni Thakur (PW 6). All the three have claimed to be the eye-witnesses to the occurrence. PW 3 Subodh Singh has been declared hostile and is of no use to the prosecution. PW 4 Sikandar Singh and PW 5 Dilip Kumar Singh are formal witnesses, who have signed as witnesses on the inquest report and have proved their signature as Exts. 1 and 1/1 respectively. PW 7 Dr. Parshuram Yugal has conducted autopsy on the dead body of the deceased Gulten Das and has proved the post-mortem report as Ext. 2, which supports the prosecution case. PW 8 Rajendra Malakar is also a formal witness, who has proved the formal FIR as Ext. 3. the fardbeyan as Ext. 1 and 1/1 respectively. PW 7 Dr. Parshuram Yugal has conducted autopsy on the dead body of the deceased Gulten Das and has proved the post-mortem report as Ext. 2, which supports the prosecution case. PW 8 Rajendra Malakar is also a formal witness, who has proved the formal FIR as Ext. 3. the fardbeyan as Ext. 4 and the case diary as Ext. 5. He has also deposed to the effect that the Investigating Officer of the case is dead. Ext. 6 has also been brought on the record on behalf of the prosecution to show that the informant party have been acquitted in a case under the Arms Act, which was instituted on the date of occurrence itself. 6. The defence has also examined four witnesses. DW 1 Durga Prasad Thakur has proved the sale deed dated 27.4.1964 as Ext. A, which is to show that the disputed property had been purchased by the father of appellant No. 1. DW 2 Gopal Mishra has proved fardbeyan and FIR of Gogari (Pasraha) P.S. Case No. 39/94 as Ext. B and Ext. C respectively. DW 3 Prem Kumar Verma has proved the FIR and the written report of Gogari (Pasraha) P.S. Case No. 38/94 as Ext. F and Ext. G to show that a case under the Arms Act was lodged against the informant party on 17.2.1994 by the Officer-in-Charge of the concerned P.S. DW 4 Brij Mohan Gupta has proved the deposition of PW 1 recorded in course of trial of the juvenile accused for this very occurrence as Ext. I. 7. On behalf of the appellants, it has been submitted that the case lodged by the Chaukidar was earlier in time and police committed error in holding that case to be false and the defence of the appellants that the informant party themselves committed the murder of the deceased is fit to be accepted or at least benefit of doubt should be given to the appellants. It has further been submitted that the deceased in this case is not a family member or relation of the informant party and no independent witness has come forward to support the prosecution case. It has further been submitted that the deceased in this case is not a family member or relation of the informant party and no independent witness has come forward to support the prosecution case. PWs 1, 2 and 6 are the only material witnesses, who are related as father and sons and interested in the property in dispute and hence, the appellants should not be convicted on the basis of the evidence of such interested witnesses. Lastly, it has been submitted that from the fardbeyan of PW 6 itself it is clear that the informant party made an attempt to take possession of the property in dispute between the parties, for which admittedly a proceeding under Section 145, Cr PC was pending from before and hence the appellants were fully justified, even if the allegations be accepted as true, in exercising their right of private defence of property with a view to prevent forcible taking over of possession by the informant and his family members. 8. It has come in the evidence of the witnesses that local Chaukidar Bhola Sao live at a very close distance from the place of occurrence. It has also come in evidence that the informant or the witnesses had not instructed the Chaukidar and had not sent any information to the Police Station till the Officer-in-Charge arrived of his own. Hence the version given by the Chaukidar cannot be said to be the version of the informant party in this case and after due investigation, the police has found that version of the occurrence given by the Chaukidar to be false and submitted final report in that case accordingly. Even the case under the Arms Act lodged by the Officer-in-Charge against the informant party has ended in their acquittal as is apparent from Ext. 6. No doubt, PW 1, PW 2 and PW 6 are interested witnesses, but it is clear from their evidence and there is no dispute that the deceased was on the side of the informant and was present at his Darwaza at the time of the alleged occurrence. The suggestion of the defence that the deceased could have been shot by the informant party accidentally does not appear probable because all the persons were standing within a close distance and a verbal altercation had preceded the actual assault. The suggestion of the defence that the deceased could have been shot by the informant party accidentally does not appear probable because all the persons were standing within a close distance and a verbal altercation had preceded the actual assault. Moreover, the ocular evidence on the record by way of deposition of PW 1, PW 2 and PW 6 cannot be brushed aside without any good reason only on the basis of guess and surmises. The presence of witnesses at the place of occurrence appears natural because their houses are situated adjacent to the house of the accused persons on the one side and the disputed property on the other side. They have given a consistent account of the actual manner of occurrence leading to shooting of the deceased by Lucho Thakur. No doubt, the informant has made certain improvements so as to attribute arms in the hands of other accused persons and giving of order by Ram Swarup Thakur, which are not in the fardbeyan but after separating such exaggeration, his version is amply supported by the version of the occurrence given by PW 1 and PW 2. There is no good reason to doubt the consistent claim of all the three eye-witnesses that it is appellant No. 3 Lucho Thakur, who fired one shot at the deceased which caused injuries and death. 9. So far as appellant No. 1 Ram Swarup Thakur and appellant No. 2 Radhe Thakur are concerned, they have been attributed with no weapon or any overt act of assault in the initial version of the occurrence and even in the deposition of witnesses in Court, there is no allegation that they assaulted the deceased. It is clear from the FIR and entire facts and circumstances as well as from the admission of PW 2 in paragraph 8 of his deposition that there was a dispute in respect of the property in question from before on account of purchase made by the father of appellant No. 1 in 1964, vide Ext. A, and a proceeding under Section 145, Cr PC was also pending from before the occurrence. It is also clear that the informant party admittedly tried to take possession of the disputed property on the date of the occurrence. A, and a proceeding under Section 145, Cr PC was also pending from before the occurrence. It is also clear that the informant party admittedly tried to take possession of the disputed property on the date of the occurrence. That led to verbal altercation and while Radhe Thakur was attempting to pull out the deceased from the place of altercation i.e., Darwaza of the informant, probably sensing resistance of the deceased, Lucho Thakur fired and caused death of the deceased. In such circumstances, it cannot be held with certainty that the accused persons had formed or constituted an unlawful assembly having a common object to commit any of the five categories of unlawful acts described in Section 141 of the IPC. The accused persons had apparently assembled to exercise their right of private defence of property and the firing by Lucho Thakur was so sudden and isolated act that it is difficult to hold that by that time the assembly had turned into an unlawful assembly. Hence, conviction of appellant No. 1 and appellant No. 2 for the offence under Section 302 read with Section 149 of the IPC cannot be maintained and they deserve to be given the benefit of doubt. Accordingly, their appeals are allowed and they are acquitted of the charges levelled against them. 10. So far as appellant No. 3 Lucho Thakur is concerned, it is to be seen whether he was justified in firing and causing death of the deceased in exercise of right of private defence of property or not. On a careful examination of all the facts and circumstances, it is clear that the case of the defence that the other side had attempted to take forcible possession of their dwelling house is not acceptable. The disputed property was intervened from the house of the accused persons by the house of the informant party and in the facts of the case, it cannot be accepted that the right of private defence of property available to appellant No. 3 extended to causing death. In the facts of the case and considering the medical evidence available on record, appellant No. 3 Lucho Thakur is found to be guilty of offence under Section 304 Part I of the IPC. In the facts of the case and considering the medical evidence available on record, appellant No. 3 Lucho Thakur is found to be guilty of offence under Section 304 Part I of the IPC. In the year 2000, while recording his statement under Section 313 of the Cr PC, the age of appellant No. 3 was recorded as 35 years, so presently he is aged about 43 years. There is no material on record that he has any criminal antecedents. Hence, considering the aforesaid facts and the other facts and circumstances in which the offence was committed, we are of the view that the ends of justice would be satisfied if appellant No. 3 Lucho Thakur is awarded a sentence of R.I. for seven years. Accordingly, for the offence under Section 304 Part I of the IPC, appellant No. 3 Lucho Thakur is sentenced to undergo R.I. for seven years. His conviction and sentence under Section 148 of the IPC is set aside as there was no unlawful assembly. But his conviction and sentence under Section 27 of the Arms Act are found to suffer from no infirmity, hence the same are confirmed. As ordered by the trial Court, his sentences shall run concurrently. 11. In the result, appeal of appellant No. 1 Ram Swarup Thakur and appellant No. 2 Radhe Thakur is allowed. Their conviction and sentence are set aside. The appeal of appellant No. 3 Lucho Thakur is dismissed with the aforesaid modification in his conviction and sentence. Appellant Nos. 1 and 2 shall stand discharged from the liabilities of their bail bonds. App. allowed of opposites 1 and 2.