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2014 DIGILAW 690 (PAT)

Narain Singh v. State of Bihar

2014-06-20

ASHUTOSH KUMAR, L.NARASIMHA REDDY, NAVANITI PRASAD SINGH

body2014
ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH) The present appeal has been filed against the judgment and order of conviction dated 11.04.1990 passed by the 2ndAdditional Sessions Judge, West Champaran at Bettiah in Session Trial No.26 of 1979. 2. All the 13 appellants were first convicted for an offence in relation to Section-302/149 of the Indian Penal Code (hereinafter for brevity ‘IPC’) and then as would be noticed some of them have been independently convicted for an offence under Sections-307 & 302 IPC. 3. Let it be noted that originally 16 accused persons were committed to the Court of Sessions for trial in this case. During pendency of the Sessions trial three of them died and as such 13 appellants were tried. Having been convicted, the present appeal was preferred and during pendency of this appeal out of 13 appellants 9 have died, leaving only 4 appellants, i.e., appellant no.5, Lal Babu Singh, appellant no.9, Tribeni Mahto, appellant no.10, Kailash Raut and appellant no.11, Chandrika Raut. Appellant no.5, Lal Babu Singh, apart from convicted for an offence under Section-302/149 IPC, has been independently convicted for an offence punishable under Section-307 IPC. Tribeni Mahto, appellant no.9 has been convicted only under Section-302 IPC with aid of Section-149 IPC. Appellant no.10, Kailash Raut has been convicted under Section-302/149 and independently under Section-302 IPC. Appellant no.11, Chandrika Raut has similarly been convicted under Section-302/149 IPC and independently under Section-302 IPC. There is one death that of Ajim Mian, the brother of the informant, P.W.13, Lajim Mian, who was shot by deceased appellant no.1, Sri Narain Singh and then appellant no.10, Kailash Raut, allegedly, climbed on his chest to kill him breaking 8 ribs and appellant no.11, Chandrika Raut, allegedly, used ‘Garasa’ to cut his neck. So far as appellant no.5, Lal Babu Singh is concerned, he is alleged to have shot injuring P.W.3, Asharfi Bhagat. So far as appellant no.9, Tribeni Mahto is concerned, it is alleged that he was a member of the unlawful assembly holding a ‘Lathi’ and he had given a ‘Lathi’ blow injuring one person who has not been examined as prosecution witness. 4. Having heard the learned counsel for the appellants, State and perusing the records, first, we find it convenient to deal with the case of appellant no.9, Tribeni Mahto. 4. Having heard the learned counsel for the appellants, State and perusing the records, first, we find it convenient to deal with the case of appellant no.9, Tribeni Mahto. The only allegation against him, in so far as implicating him is concerned, is at the behest of P.W.7, Mehdi Hasan, who is the nephew of the deceased and an injured witness. He merely names Tribeni Mahto as being person with a ‘Lathi’. The other is P.W.12, Manjur Mian, who is the brother of the deceased and who states that Tribeni Mahto had assaulted one person, Sukhlal Thakur with the ‘Lathi’. 5. Learned counsel for the appellants submits that the prosecution case being that over a 100 people variously armed had come, there were several rounds of firings, it is difficult to identify an individual with certainty so as to find him guilty of being member of unlawful assembly. He draws attention that out of 13 witnesses examined only two have named him (appellant no.9) and one alleging merely holding ‘Lathi’. The other having seen the appellant no.9, Tribeni Mahto assaulting Sukhlal Thakur. He points out that even this assault is not being proved inasmuch as neither Sukhlal Thakur has been examined nor his injuries brought on record and proved. This would make the very presence of this appellant doubtful. Learned counsel for the appellants further points out that from the evidence it appears that this appellant no.9, Tribeni Mahto was not even named in the F.I.R. and further basically the injuries were caused because of gun shot and when one person was hit and injured the allegations are that Chandrika Raut and Kailash Raut then made sure that he died. In such a situation to accept that this appellant no.9, Tribeni Mahto was person who used ‘Lathi’ which implies close altercation or interaction, that itself would be contrary to the prosecution case. 6. Having considered the submissions, in our view, the submission of learned counsel for the appellants especially in respect of appellant no.9, Tribeni Mahto has to be accepted. It is a settled principle of appreciation of evidence that while considering cases of conviction with aid of Section-149 IPC, the presence of accused persons as part of unlawful assembly with common object has to be strictly proved. It is a settled principle of appreciation of evidence that while considering cases of conviction with aid of Section-149 IPC, the presence of accused persons as part of unlawful assembly with common object has to be strictly proved. It appears that not being named in the F.I.R. and not being named by most of the witnesses, Tribeni Mahto, appellant no.9 is entitled to the benefit of doubt and thus to that extent this appeal has to be allowed. However, that is not the case so far as the other three surviving appellants are concerned. 7. The fardbeyan, on the basis of which the F.I.R. was registered, is Ext.5. It is the statement of the informant, P.W.13, Lajim Mian, who is the brother of the deceased Ajim Mian. The fardbeyan states that on the date of occurrence, i.e., on 11.09.1976, while Lajim Mian, Ajim Mian and Manjur Mian, being brothers, had gone to their agriculture land for transplanting paddy seedlings with the help of labourers, the accused persons along with 100 of people led by deceased appellant no.1, Sri Narain Singh came. They were all variously armed. Several of them including appellant no.5, Lal Babu Singh were carrying firearms. Some like Chandrika Raut was carrying a ‘Garasa’ and some were carrying spears and ‘Lathi’. Sri Narain Singh, deceased appellant no.1 fired hitting Ajim Mian, who after being hit by the gun shot tried to run away but fell in the neighbouring paddy field while others of the prosecutions party tried to retreat. Kailash Raut and Chandrika Raut then attacked Ajim Mian and made sure that he died by using ‘Garasa’. In the F.I.R., it is stated that several rounds of firing took place and in retaliation the informant, Lajim Mian, who was also armed, fired three rounds from his licensee gun. He does not know if anyone was injured or not in the process. This was the fardbeyan on basis of which F.I.R. was registered and investigation taken up. 8. It may be noticed here that in respect of the same occurrence, there was a counter case lodged by appellant no.2, Rajendra Singh. Police investigated the case and, thereafter, submitted charge-sheet in the case instituted upon the F.I.R. lodged by Lajim Mian as against the appellants and others but submitted final form in so far as the counter case is concerned. Police investigated the case and, thereafter, submitted charge-sheet in the case instituted upon the F.I.R. lodged by Lajim Mian as against the appellants and others but submitted final form in so far as the counter case is concerned. However, upon protest petition being filed, the counter case stood revived. In the counter case the trial had not concluded till at least judgment in this case was delivered. 9. The prosecution, in order to establish the charge that was framed against the accused persons, after commitment to the Court of Sessions which charge was basically under Section-302/149 IPC, examined in all 16 witnesses. Out of the 16 witnesses only 11 witnesses are material in relation to the occurrence and nature thereof. 5 are formal witnesses in the sense P.W.8, Deva Raut has been tendered. P.W.9, Mishri Lal Sah is Draftsman who has proved the sketch map of the agriculture fields in the area. P.W.14 is Dr. Madan Mohan Prasad, who conducted the postmortem and proved his postmortem report. P.W.15 is Dr. Md. Lukman Ali who proved the injury report on various injured prosecution witnesses and P.W.16 is Ahmad Raja, the Investigating Officer. 10. The prosecution case is specific. Their case is that the deceased, Ajim Mian, Lajim Mian and Manjur Mian were brothers. They had three more brothers making six in all. They were in cultivating possession of substantial lands and, over the past few days, were transplanting paddy seedlings with the help of hired labourers. On the fateful day, while the deceased, Manjur Mian and Lajim Mian were there, an unlawful mob led by deceased appellant no.1, Sri Narain Singh variously armed came. Sri Narain Singh fired without any provocation hitting Ajim Mian. Lajim Mian asked the labourers to move away and they all tried to retreat. Ajim Mian ran for some distance and fell being injured by gun shot. In the process, it is alleged that appellant no.5, Lal Babu Singh also fired injuring Asharfi Bhagat, P.W.3. Appellant no.10, Kailash Raut then climbed on the chest of the injured and fallen Ajim Mian which caused 8 ribs to break and then Chandrika Raut, appellant no.11 used ‘Garasa’ on Ajim Mian as a consequence whereof Ajim Mian died on the spot. The injuries on P.W.3, Asharfi Bhagat has been proved and corroborates with gun shot injury as fired from the gun in possession of Lal Babu Singh, appellant no.5. The injuries on P.W.3, Asharfi Bhagat has been proved and corroborates with gun shot injury as fired from the gun in possession of Lal Babu Singh, appellant no.5. The injuries found by doctor on postmortem of Ajim Mian fully corroborate the prosecution version. The allegations of gun shot followed by breaking of ribs and use of ‘Garasa’ as cause of death are fully corroborated and substantiated. 11. First considering the case of Lal Babu Singh, appellant no.5, it is pointed that he has been examined as defence witness being D.W.3. He has set up a plea of alibi which he has not proved to the satisfaction of the Court. His presence and the fact that he shot at Asharfi Bhagat (P.W.3) has been established by cogent evidence of P.Ws.1, 2, 3, 4, 6, 7 & 12 whose testimony in this regard remained unshaken. In fact, none of the aforesaid prosecution witnesses were even given a suggestion that Lal Babu Singh, appellant no.5 was not present or Lal Babu Singh had not shot at Asharfi Bhagat. That being the situation, in our view, not only the presence but the act of Lal Babu Singh, appellant no.5 shooting and injuring Asharfi Bhagat stands established. 12. Now, we may consider the case of Kailash Raut, appellant no.10 and Chandrika Raut, appellant no.11. As noted above, both of them have been convicted apart from Section-302/149 IPC for an offence under Section-302 independently for causing the death of Ajim Mian. The evidence of witnesses are consistent that Sri Narain Singh, deceased appellant no.1 first fired without provocation injuring Ajim Mian. This is there in the evidence of P.Ws.1, 2, 3, 4, 5, 6, 7, 11 & 12. The evidence then is consistent that in the injured state Ajim Mian tried to run but fell down in the neighbouring agriculture field. Having fallen down, appellant no.10, Kailash Raut, as per consistent evidence of P.Ws.1, 2, 3, 4, 6, 7, 10, 11, 12 & 13, climbed on the chest of Ajim Mian and pressed it. The medical evidence supports this as on postmortem 8 of his ribs were found broken. It is then the consistent evidence of the prosecution through P.Ws.1, 2, 3, 4, 6, 10, 11, 12 & 13 that Chandrika Raut, appellant no.11 then used his ‘Garasa’ to ensure that Ajim Mian does not survive. Medical evidence supports the injuries caused by ‘Garasa’ as well. It is then the consistent evidence of the prosecution through P.Ws.1, 2, 3, 4, 6, 10, 11, 12 & 13 that Chandrika Raut, appellant no.11 then used his ‘Garasa’ to ensure that Ajim Mian does not survive. Medical evidence supports the injuries caused by ‘Garasa’ as well. It is cumulative effect of gun shot, the breaking of ribs and the ‘Garasa’ injury that Ajim Mian died on the spot. 13. The prosecution evidence is consistent and has not been shaken that over a 100 of people led by Sri Narain Singh, which included the appellants had assembled variously armed and without provocation they fired upon the prosecution party. Thus, the prosecution successfully establishes the unlawful assembly being variously armed and various persons fired from not a long distance away at the prosecution party injuring several prosecution witnesses for example P.Ws.1 2, 3, 4, 5, 6, 11 and causing virtually fatal injuries on the deceased clearly shows the common object. 14. Thus, in our view, there cannot be any escape from finding that all the three surviving appellants, i.e., appellant nos.5, 10 and 11 with the exception of one, namely, Tribeni Mahto, appellant no.9 as noted above, were with others forming unlawful assembly and had come with the object of injuring, if not killing the prosecution party, in order to drive them away from their land and take forcible possession of the land. This being so, we find no reason to interfere with the conviction of surviving appellant no.5, Lal Babu Singh, appellant no.10, Kailash Raut and appellant no.11, Chandrika Raut is concerned. 15. In fairness to the learned counsel for the defence and the appellants, we must notice that no suggestion even has been given to the prosecution witnesses that these appellants were not present except for suggestion to the informant, i.e., P.W.13, Lajim Mian. No suggestion even has been given to others that there was dispute of possession in regard to the agriculture land and it is in course of that dispute that there was a fight between the two factions. In fact, from the cross-examination of P.W.13, Lajim Mian, the informant, a clear picture emerges. It appears that these lands were subject matter of a title suit filed by deceased appellant no.1, Sri Narain Singh as against the father of the informant and others. Sri Narain Singh, deceased appellant no.1 had claimed title and restoration of possession. In fact, from the cross-examination of P.W.13, Lajim Mian, the informant, a clear picture emerges. It appears that these lands were subject matter of a title suit filed by deceased appellant no.1, Sri Narain Singh as against the father of the informant and others. Sri Narain Singh, deceased appellant no.1 had claimed title and restoration of possession. He had sought to challenge the deed of conveyance of this land in favour of the father of the informant. The suit was pending and in 1976 the suit was dismissed. The judgment and decree of the Civil Court is Ext.2 that clearly gives a finding that Sri Narain Singh was not in possession. It also records a finding that by purchase of land from Ramanand Tiwari, he, Sri Narain Singh, had sought to purchase the litigation. If this is kept in mind and the fact that nowhere defence challenged the possession of the prosecution, it is apparent that it was Lajim Mian, Ajim Mian and Manjur Mian who were cultivating the land and getting paddy seedlings transplanted. No evidence has been led even by defence much less suggestion made to the prosecution that this was incorrect. 16. Thus, from this evidence, which is consistent and has not been shaken by the defence in any manner, the only inference that can be drawn is that Lajim Mian, Manjur Mian and deceased Ajim Mian were in settled possession which was sought to be disturbed by the accused persons. Once this conclusion is arrived at then there is no escape from holding that Ajim Mian, having died of gun shot, broken ribs and assault of ‘Garasa’, death could only be a culpable homicide, amounting to murder. If that be so, then as there was an assembly of persons variously armed who had come upon this land, there cannot be any escape from the finding that they had a common object and it is in pursuance thereto that firing took place in which ultimately Ajim Mian died. 17. Thus, the fact that the appellants were seeking to assert their right or Sri Narain Singh, deceased appellant no.1 seeking to assert his right to property in course of which the altercation took place, cannot be a fact, to give benefit of doubt to the appellants. The evidence is consistent that the appellants were the aggressors without any grave or sudden provocation. The evidence is consistent that the appellants were the aggressors without any grave or sudden provocation. They had, in fact, come prepared for the assault. 18. Thus, we find it difficult to interfere with the judgment and order of the Trial Court, except inasmuch as it relates to Tribeni Mahto is concerned. For the reasons as stated above, we find no merit in this appeal in relation to appellant nos.5, 10 and 11. It is, accordingly, dismissed. Appellant no.9, Tribeni Mahto is acquitted and discharged from his bail bond. The rest of the appellants are dead. The appeal in relation to them, i.e., appellant nos.1, 2, 3, 4, 6, 7, 8, 12 and 13 abates. So far three appellants, i.e., appellant no.5, Lal Babu Singh, appellant no.10, Kailash Raut & appellant no.11, Chandrika Raut are concerned, their bail bonds are cancelled and they must, accordingly, surrender before the Court below to serve their sentences.