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2012 DIGILAW 1258 (PAT)

Natho Mishra @ Baidnath Mishra v. State of Bihar

2012-09-06

ADITYA KUMAR TRIVEDI, MIHIR KUMAR JHA

body2012
JUDGMENT Per: MIHIR KUMAR JHA, J. The present appeal is directed against the judgment of conviction and sentence of all the three appellants dated 5.3.1990 in Sessions Case No. 38/1984 whereby and whereunder while appellant no.1 Natho Mishra @ Baijnath Mishra has been convicted for offence under section 302 of the India Penal Code, the rest of the two appellants, namely, Chandramauli Mishra @ Buchi Mishra and Bedanand Mishra @ Buchan Mishra have been convicted for offence under section 302/34 I.P.C. and all of them have been sentenced to undergo R.I. for life. 2. The prosecution case as has been set out by the informant Achhey Pathak (P.W.5) in his fardbeyan given to the police at 4.45 P.M. on 4.9.1981 is to the effect that at about 11.00 A.M. on the same day (4.9.1981) while he was in his field near Durga Asthan, and was getting his crop of maize harvested through his Bataidar Banarsi Rai (deceased), the appellants alongwith one Gangadhar Mishra having arrived over there had made a protest as with regard to harvesting of the maize crop Banarsi had retorted by saying that the maize crop was grown by him and on this the appellant, Natho Mishra @ Baijnath Mishra had given a blow by Bhala in the neck of Banarsi, as a result whereof Banarsi had fallen on the ground with bleeding injuries. It has also been alleged that the appellant Budhan @ Bedanand was armed with Bhala while two others, namely, appellant Chandramauli @ Buchi and Gangadhar were armed with lathi. The informant has claimed that after assault on Banarsi when he had rasied hulla, a number of persons including Kapildeo (P.W.3), Kamli Rai (not examined), Shyam Mahto (P.W.4), Ido Mian (not examined), Ramdeo Mukhiya (P.W.2) had arrived at the place of occurrence. The informant has also stated that after arrival of the aforementioned persons, all the appellants as well as Gangadhar Mishra had ran away towards their house and Banarsi in an injured condition was sought to be taken away for his treatment on a cot jointly by Shambhu Rai (not examined), Samsudi Mian (not examined), Guro Yadav (P.W.6), but Banarsi had succumbed to his injuries in the way to hospital soon after near the house of one Rameshwar Choudhary. The said fardbeyan was recorded in presence of Narsingh Rai (P.W.9) and Bipin Bihari Prasad (P.W.7) who were attesting witnesses. The said fardbeyan was recorded in presence of Narsingh Rai (P.W.9) and Bipin Bihari Prasad (P.W.7) who were attesting witnesses. The police having recorded the fardbeyan had instituted Bakhari P.S. Case No. 163 dated 4.9.1981and after investigation had submitted its charge sheet as against the appellants and Gangadhar Mishra (since dead) and the case being exclusively triable by the court of Sessions was accordingly committed and has consequently led to impugned judgment of conviction and sentence of the three appellants giving rise to this appeal. 3. Assailing the aforementioned judgment learned counsel for the appellants had primarily sought to assail the approach of the trial court in rejecting the counter case filed by the appellant Natho and in this regard a specific criticism has been made that once the trial court had before it a concluded evidence in form of Ext.A, the charge sheet of the counter case, Bakhari P.S. Case No. 164/1981, as also admitted in the evidence of all the material prosecution witnesses, who were made accused therein, an adverse inference had to be drawn against the entire prosecution case, inasmuch as if the prosecution party itself was aggressor and had indulged indiscriminate assault on the family members of the appellants as also had put the house of the appellants on fire, any resultant injury caused on the deceased or other members of the prosecution party could not have been held committed much less in the manner alleged by the prosecution. It has also been submitted that the whole dispute relating to the field in question as has been sought to be made the motive and genesis for the occurrence is further belied because the appellants have successfully proven the fact from Exts. B, C and D, the judgments of the court, that the land actually belonged to the appellant Natho and his family members and therefore, the story of growing maize by the informant or his Bataidar Banarsi (deceased) would itself amount to an act of usurping the land of the appellants and thus if for that an occurrence had taken place, the appellants had definitely a right of private defence. 4. 4. Apart from these two main submissions learned counsel for the appellants had also submitted that there is in fact inherent contradiction in the entire prosecution case, inasmuch as neither the time of occurrence nor the place of occurrence as suggested by the prosecution has been established. Criticism has also been made with regard to non-examination of the Investigating Officer as also some of the independent witnesses named in the F.I.R. or even the persons namely, Kapildeo Rai, Damodar Mishra, Ido Mian, the mother and the wife of the deceased as also anyone from large number of two lady labourers who were also present and said to be harvesting maize crop as were admitted by them in course of evidence of material witnesses. It has also been contended that even if the prosecution case is believed to be true in its entirety there is still no evidence at least against appellants no. 2 and 3 either of sharing a common intention with appellant no.1 Natho who had given the only fatal blow by Bhala on the neck of Banarsi the deceased specially when there is no whisper of any allegation of overt act against them. Based on the aforementioned submissions learned counsel for the appellants is of the view that the prosecution in fact has utterly failed to prove its case much less beyond reasonable doubt. 5. Per contra, learned counsel for the State while defending the impugned judgment of conviction and sentence has submitted that when there are as many as seven eye witnesses to the occurrence in form of P.W.1 Bahadur Yadav, P.W.2 Ramdeo Mukhiya, P.W.3 Kapil Rai, P.W.4 Shyam Mahto, P.W.5 Acchay Pathak (informant), P.W.6 Guro Yadav and P.W.10 Bindeshwari Mukhiya who have consistently supported the entire prosecution case, it cannot be said that the whole prosecution story would fail only on account of non-examination of the Investigating Officer. In this regard it has been submitted that on account of seizure of the blood from the place of occurrence in presence of witness proving such seizure, namely, P.W.7 Bipin Bihari Prasad, the place of occurrence remains unshaken. The manner of occurrence according to her has also been fully substantiated, inasmuch as the doctor (P.W.11) in his postmortem report has found presence of that antemortem injury caused by Bhala to be the only reason for the death of the deceased Banarsi. 6. The manner of occurrence according to her has also been fully substantiated, inasmuch as the doctor (P.W.11) in his postmortem report has found presence of that antemortem injury caused by Bhala to be the only reason for the death of the deceased Banarsi. 6. It has also been submitted by Ms. Verms that merely because Natho had also filed a criminal case against the prosecution party that by itself would not mean that the same was a counter case of the same occurrence, inasmuch as a bare reading of the charge sheet Ext.A will itself go to show that some other occurrence in the house of the appellant was claimed to have been committed by the members of the prosecution party but then the occurrence which had taken place in the field where the dead body of Banarsi (deceased) was found by the police and where the fardbeyan of informant (P.W.5) was recorded by the Police Officer which cannot be belied merely on account of a criminal case filed by Natho against the members of prosecution party. Learned A.P.P. in this regard has also explained that in absence of any injury report of any person on the side of the appellants and there being a definite version that the death of co-accused Gangadhar had taken place subsequently in the hospital on account of his being patient of Tuberculosis, it cannot be claimed by the defence that there was either a counter case of the same occurrence or the injuries to the appellant and his family members including co-accused Gangadhar were caused in the same occurrence in which Banarsi, the deceased, has been killed by appellant Natho. She has accordingly submitted that the impugned judgment under appeal would require no interference by this Court. 7. Before analyzing the aforementioned submissions of both the parties it is necessary for us to take into account that the whole prosecution case is based on fardbeyan of P.W.5 who has given his version of the entire occurrence in his own field at about 4.45 P.M. wherein according to him the occurrence had taken place at about 11.00 A.M. It has come in his evidence as also in the evidence of P.W.3 that the police had arrived at the place of occurrence on a telephonic information given by a constable who was present in the village even before the occurrence. The arrival of the police and recording of fardbeyan of P.W.5 at 4.45 P.M. being beyond doubt, the only question would be, did the prosecution try to suppress any of the vital information relating to fatal blow on Banarsi? The evidence of the prosecution as with regard to harvesting of crops grown in the field by Banarsi who was admittedly the Bataidar of the informant P.W. 5 cannot be lightly brushed aside because growing of crops must not have been done in one day and therefore, when the prosecution party were in possession of the field in question and had grown-crop, the presence of the appellants and Gangadhar with a view to cause obstruction at the time of harvesting of the crop by the prosecution party would seriously raise a question as with regard to their dispossession of the field claimed by them. 8. The answer to the case of the appellants being in such possession of the land in fact lies in their own document, inasmuch as Exts.B, C and D in no way go to show that the appellant had already been in possession of the land. What has been really decided by Ext.B, the decree of title suit No. 26 of 1974 by the civil court in favour of the appelalnts is immediately clarified by the judgment contained in Ext.C wherein all that was held by way of declaration that the appellants were next reversioner to the estate of late Babulal as also for a declaration that they had a right to sue for recovery of possession after the death of the widow of Babulal, defendant no.1. If this declaratory suit was decreed and the widow was still alive, there could be in fact no issue of appellants being in possession of the land in question and at least the defence has not been able to produce any other document to support the story of their being in possession of the land in question. Therefore, even if Ext.D, the order of the court in an application filed under Order 9 Rule 13 C.P.C. by the informant and its rejection on 21.3.1988 is accepted in toto, the same would in no way go to show that the appellants had been in possession of the land. Therefore, even if Ext.D, the order of the court in an application filed under Order 9 Rule 13 C.P.C. by the informant and its rejection on 21.3.1988 is accepted in toto, the same would in no way go to show that the appellants had been in possession of the land. True it is that even the informant P.W.5 has not produced any documentary evidence in support of his claim to be the owner of the land but his possession through his Bataidar, Banarsi, the deceased still stands supported not only from the oral testimony of a number of witnesses but also from own conduct of the appellant Natho, who had actually impleaded Achhay Lal, the informant P.W.5, as the defendant 2nd set in the declaratory suit, T.S.No. 26/1974 filed by the father of the appellant Natho & ors. against the widow. Once we are, therefore, able to come to the conclusion that the story of possession of the land by the appellants has no base, we will have also no difficulty in coming to the conclusion that the arrival and opposition of the appellants in the field at the stage of harvesting of the crop by informant and his bataidar on the crucial date of occurrence was itself in excess of their any right and at least they cannot claim right of private defence over a land of which they have failed to prove their title and possession. 9. The prosecution case, therefore, becomes now very simple that when the informant through his Bataidar Banarsi (deceased) was getting his crop harvested, an attempt was made to oppose such harvesting and taking away the crops grown by the prosecution party. If in such course of harvesting by Banarsi and his men there was an opposition made by the appellant and if Banarsi had tried to justify taking away such crop grown by him, the assault made by Bhala on the neck of Banarsi by the appellant Natho can have no other justification. If in such course of harvesting by Banarsi and his men there was an opposition made by the appellant and if Banarsi had tried to justify taking away such crop grown by him, the assault made by Bhala on the neck of Banarsi by the appellant Natho can have no other justification. Similarly the story of there being also an attack in the house of appellant Natho by the prosecution party for which subsequently the police in course of investigation of the present case is said to have drawn an F.I.R. of Bakhari P.S. Case No. 164/1981 would in no way weaken the case of prosecution because from the charge sheet, Ext.A, filed by the appellants by way of their defence as well as suggestion given to informant P.W.5 in his cross-examination it is clear that the story set up by them of out-raging modesty of a female member of the appellants or putting their house on fire or causing assault on them was not found to be true and the charge sheet in the case of the appellants was filed for the minor offences only. Thus, filing of the criminal case by the appellants against prosecution party by itself cannot become a plank much less an acceptance defence for their justification of killing Banarsi by appellant Natho. 10. This Court has accordingly also examined the evidence of P.W.1 Bahadur Yadav, who is said to be a Mazdoor engaged by Banarsi for cutting crops. He has supported the occurrence and therefore, when nothing has been taken away from him even in his cross-examination on the point of assault by Natho on Banarsi, a fact which has been consistently mentioned by even other witnesses, the manner of occurrence leading to fatal injury and the consequential death of Banarsi is beyond pale of doubt. The Evidence of other eye witnesses, namely, P.W.2 Ramdeo Mukhiya, P.W.3 Kapil Rai, P.W.4 Shyam Mahto and P.W.6 Guro Yadav are also of the same nature and from them this much becomes clear that they were in and around the field, the place of occurrence where fatal injury was given to Banarsi (deceased) by the appellant Natho. The Evidence of other eye witnesses, namely, P.W.2 Ramdeo Mukhiya, P.W.3 Kapil Rai, P.W.4 Shyam Mahto and P.W.6 Guro Yadav are also of the same nature and from them this much becomes clear that they were in and around the field, the place of occurrence where fatal injury was given to Banarsi (deceased) by the appellant Natho. In that view of the matter, there is nothing for this Court to discard the evidence of eye witnesses and mere criticism that some of them, namely, P.W.1, P.W.6 and P.W.10 were not named by the informant in the F.I.R. as eye witnesses in no way would shake the evidence. An F.I.R. after is not supposed to be encyclopedia of occurrence and its witnesses. 11. Judged from this angle this Court would find that the ocular evidence of P.W.1, 2, 3, 4, 5, 6 and 10 is quite consistent on the manner of occurrence and the assault on the deceased Banarsi by Natho. The said injury of accused by Bhala by the appellant Natho on Banarsi stands fully substantiated from the postmortem report wherein the doctor had found the following injury on the person of the deceased: “The following antemortem injuries were found on the person of the deceased. Horizontally planed incised penetrated wound on the right side of neck interior to sternomortrid muscle 1½”x 1/3” x puncturing Larynxard upper fractured rings, on dissection, cerotid vessels, muscles or the right side suene punctured emth hemtome under the right side skin and in deep subcutaneous tissues. Blakiest bruise founches right side extendiant frontal part of scalp 3”x1” simple caused by some hard and blunt substance. Cause of death in my opinion is due to injury no.(1) mentioned above- caused as a result of thrust by some sharp pointed weapon. The injury is sufficient in ordinary course of nature to cause death indputely. Time elapsed since death about 24 (twenty four) hours at the time of P.M. examination. Body clothes etc handed over to constable accompanied dead body for disposal and needful.” 12. The injury is sufficient in ordinary course of nature to cause death indputely. Time elapsed since death about 24 (twenty four) hours at the time of P.M. examination. Body clothes etc handed over to constable accompanied dead body for disposal and needful.” 12. It is very significant to note here that the doctor had conducted postmortem at 2 P.M. on 5.9.1981 and has given time elapsed since death to be about 24 hours which again falls with the prosecution case whether the time of occurrence is 2 P.M. according to the appellants or 11 A.M. as claimed by the informant in his F.I.R. Thus, there is complete harmony in the ocular and medical evidence either with regard to the manner of occurrence or time of occurrence. 13. True it is that there has been a herculean effort on the part of the appellants to shift the time of occurrence, namely, from 11.00 A.M. to 2.00 P.M. and there seems to be also some iota of truth in the aspect that such occurrence had taken place not at 11.00 A.M. but in or around 2.00 P.M. but that will also not affect or change anything substantial as with regard to the prosecution case. It has come in evidence of P.W.5 that the occurrence had taken place leading to fatal injury on Banarsi around 3.00 P.M. The information which has been given to the Police Officer on phone by the constable present in village leading to arrival of the police in the village about 4.45 P.M. and that the police has gone to record two fardbeyan leading to two police cases would lead to conclusion that the occurrence of the other case is said to have been at about 2.00 P.M. but then can it mean that even if there was some occurrence at the house of Natho they had a right to come over the land and cause death of Banarsi? The prosecution in fact has successfully answered this aspect by showing that after Banarsi had been given an injury on his person he had remained in the field around 20 minutes, whereafter he is said to have taken away to a certain distance for his treatment and when it was found that he had died in course of his being taken away for treatment to hospital his dead body had been brought back at the place of occurrence. 14. 14. Such case of the prosecution in fact has no chink, inasmuch as the police after arrival at the place of occurrence has found the informant present in the field with the dead body of Banarsi and, therefore, the time of occurrence given by rustic villagers cannot become fatal to discard the prosecution case. It is not that the version given by appellant Natho in his fardbeyan as with regard to time of occurrence 2 P.M. was a sacrosanct and especially when his other version of either out-raging modesty of a lady family member or his burning of house by the prosecution party was found to be false by police, much significance cannot be attached to the timing shown in the counter case by the appellants or naming of all the prosecution witnesses as the members of unlawful assembly of assaulting Natho and his family members. As a matter of fact there being no injury report of any of such person on record, mere acceptance of injury in the evidence of P.W.5, informant, on the person of appellant Budhan and co-accused Gangadhar will not shake the entire prosecution case. These injuries being superficial they were hardly required to be explained by the prosecution and at least no adverse inference can be drawn on this score against the prosecution. 15. The submission as with regard to exercise of right of private defence only on the basis of some injury on the person of Budhan and Gangadhar as admitted by P.W.5 in his deposition would require only this much of observation by this Court that all that was said by P.W.5 in his evidence that he had seen injury on the person of Budhan when he was arrested alongwith all the accused persons (appellants). The injury either on the hand of Budhan or on his lips as suggested was not even claimed to be grievous injury. Similarly, when it was suggested and in fact it was accepted by P.W.5 in paragraph 15 of his evidence that co-accused Gangadhar had sustained injury in his hand but had categorically denied of sustaining any injury in his stomach, there being no injury report of Gangadhar brought on record by the defence, this Court will have no difficulty in holding that even such injury as was admitted by P.W.5 on person of co-accused Gangadhar was a simple injury. It is also very significant to record here that P.W.5 had categorically denied any injury on the person of appellant Natho and nothing has been brought on record to show that Natho had actually sustained injury. Thus, even if Para 15 of the evidence of P.W.5 is taken to be an admission on his part of there being some injury on the side of the appellants, that by itself would not weaken the prosecution case where there happens to be consistent version regarding fatal injury given on Banarsi leading to almost his instantaneous death at the spot. On the basis of simple and superficial injury on the side of the appellants there could be no right of private defence available to the appellants, especially when the land for and on which occurrence had taken place was not in possession of the appellants. In such a situation the onus was on the appellants to prove that the alleged right of private defence was exercised by them by proving preponderance, a theory which was enunciated in the case of Sat Narain vs. State of Haryana, reported in (2009)17 SCC 141 , wherein it was held that the right of private defence had to be proven on the basis of reasonable probability and the theory of right of private defence would automatically fail if the accused themselves were aggressors inasmuch as in such cases the right of private defence was not available to accused. 16. Thus, on the basis of our aforementioned discussion we would find that there is no flaw in recording conviction of appellant Natho @ Baijnath. True it is that the deceased Banarsi had sustained only one injury which was caused by Bhala in his neck and had proved to be fatal but then the number of injuries can never be the safe yardstick to determine the question of aggressor. Here in the present case there is consistent evidence that when Banarsi had sought to defend his action of either harvesting crop or taking his crops from the field in question, the appellant Natho had protested over the same and had also caused fatal injury by giving Bhala blow on his neck. It was, therefore, pre-meditated assault made by Natho which would easily fall within the purview of section 302 I.P.C. 17. It was, therefore, pre-meditated assault made by Natho which would easily fall within the purview of section 302 I.P.C. 17. Having thus examined the material on record as against appellant Natho Mishra when we analyze the same evidence in respect of appellant no.2 Chandramauli Mishra @ Buchi Mishra and appellant no.3 Bedanand Mishra @ Budhan Mishra we have no hesitation in coming to a conclusion that there is no evidence of any pre-meditation or meeting of mind on their part with Natho either earlier or at the spot leading to assault and the death of Banarsi. In this connection from the evidence of P.W.1 in paragraphs 1 and 4, P.W.2 in paragraph 1, P.W. 4 in paragraph 1, P.W.5 in paragraphs 1 and 9, P.W.6 in paragraph 1, P.W.7 in paragraph 10 it is absolutely clear that they have been only named to be present with weapon either Bhala or lathi in their hand and no overt act has been alleged against them. In fact the informant P.W.5 in his cross-examination in paragraph 9 has even gone to admit that other accused persons including the appellants had not confined or circled the deceased at the time appellant Natho had inflicted the injury by Bhala on Banasi the deceased and as such, in absence of any allegation of overt act against them this Court would find that their conviction for offence under section 302/34 I.P.C. cannot be maintained. Reference in this connection may be usefully made to the judgment of the Apex Court in the case of Hare Krishna Singh & ors. vs. the State of Bihar, reported in 1988 BLJ 599 (S.C.), wherein it was held as follows: “28. The question is whether the crime was committed by Hare Krishna Singh and Paras Singh of Dhobaha in furtherance of common intention of these two appellants also. Common intention under section 34 I.P.C. is not by itself an offence. But, it creates a joint and constructive liability for the crime committed in furtherance of such common intention. As no overt act whatsoever has been attributed to the appellants, Ram Kumar Upadhaya and Sheo Narain Sharma, it is difficult to hold, in the facts and circumstances of the case, that they had shared the common intention with Hare Krishna Singh and Paras Singh of Dhobaha. As no overt act whatsoever has been attributed to the appellants, Ram Kumar Upadhaya and Sheo Narain Sharma, it is difficult to hold, in the facts and circumstances of the case, that they had shared the common intention with Hare Krishna Singh and Paras Singh of Dhobaha. When these two appellants were very much know to the eye witnesses, non-mention of their names in the evidence as to their participation in fire upon the deceased, throws a great doubt as to their sharing of the common intention. The convictions and sentences of these two appellants also cannot, therefore, be sustained.” 18. Thus, having given our anxious consideration to the materials on record and the aforementioned submissions we are of the view that the conviction of only appellant no.1 Natho Mishra @ Baijnath Mishra can be maintained whereas conviction of appellant no.2 Chandramauli Mishra @ Buchi Mishra and appellant no.3 Bedanand Mishra @ Budhan Mishra cannot be upheld. 19. In the result, this appeal is allowed in part so far it relates to appellants no.2 Chandramauli Mishra @ Buchi Mishra and appellant no.3 Bedanand Mishra @ Budhan Mishra. Appellants no.2 and 3 are on bail and they would accordingly stand discharged from the liability of their bail bonds. 20. The appeal of appellant no.1 Natho Mishra @ Baijnath Mishra however is dismissed. Appellant no.1 is on bail. His bail bond is accordingly cancelled and he is directed to surrender immediately for serving out his rest of sentence. 21. With the aforementioned modification in the impugned judgment this appeal is disposed of. Appeal disposed of.