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2016 DIGILAW 634 (JHR)

Gamhar Singh v. State of Jharkhand

2016-04-18

RONGON MUKHOPADHYAY

body2016
JUDGMENT : Rongon Mukhopadhyay, J. This criminal appeal is directed against the judgment and order of conviction dated 10.10.2002 and sentence dated 18.10.2002 passed by Sri D.N. Tiwari, the learned 4th Additional Sessions Judge, Fast Track, Garhwa in Sessions Case No. 163 of 1988, whereby and whereunder, the appellants have been found guilty and convicted for the offence punishable u/s 304(i)/34 and 307/34 of the Indian Penal Code (I.P.C.) and have been sentenced to rigorous imprisonment (R.I.) for 10 (ten) years u/s 304(i)/34 I.P.C. and further R.I. for 7 (seven) years for the offence punishable u/s 307/34 I.P.C. and both the sentences were directed to run concurrently. 2. During the pendency of the appeal on account of death of the appellants No. 3, 4 and 11, the appeal had abated and therefore the present appeal is with respect to rest of the appellants. 3. The prosecution story in brief is that the deceased and one injured along with Shivlal, Rambriksh and many other persons had gone to harvest paddy crops in Village Turimunda at the instance of Surendra Singh of Village Ranpura. As they were after completing the harvesting had started collecting the paddy in bundles, the appellant No. 1 had raised alarm at which many persons including deceased Kail Parahia reached there. Deceased Kail Parahia was caught hold by the accused persons and was assaulted by Garasa as well as Lathi and Surendra Parahia was also brutally assaulted. On account of the injury sustained by Kail Parahia he fell into the river and died, whereas Surendra Parahia suffered several injuries. It is also alleged that the informant had also suffered injuries on his person. On the basis of the aforesaid allegation Ranka P.S. Case No. 76 of 1985 was instituted for the offences punishable u/s 147, 148, 149, 337, 324, 323, 387, 302 and 379 of the I.P.C. After investigation charge-sheet was submitted against the appellants pursuant to which cognizance was taken and the case was transferred to Court of Sessions where charge was framed for the offences punishable u/s 148, 302/149 and 307/149 of the I.P.C. 4. In course of trial, the prosecution had examined as many as fourteen (14) witnesses in support of its case. P.W. 1 Ramdeo Singh is a formal witness, who has proved the F.I.R. P.W. 2 Surendra Parahia is one of the injured witnesses. In course of trial, the prosecution had examined as many as fourteen (14) witnesses in support of its case. P.W. 1 Ramdeo Singh is a formal witness, who has proved the F.I.R. P.W. 2 Surendra Parahia is one of the injured witnesses. This witness has deposed that he had gone to Turimunda village at the request of Surendra Singh to harvest paddy. His brother Kail Parahia, Ramnath Singh, Sunnar Singh and others had also gone. He had further stated that after cutting the paddy they were preparing bundles of the same. All of a sudden he heard alarm and several persons assembled there armed with various weapons. This witness and others started fleeing away. In the meantime Kail Parahia was assaulted by Gamhar Singh with Garasa and others who had also assaulted were Ramdhari Singh, Rambriksh Singh, Badri Singh, Mahavir Singh, Chhota Babu Singh, Sunnar Singh, Munnar Singh, Baleshwar Singh, Rameshar Singh, Bhandari Singh and Sohrai Singh. He has further deposed that he had also been assaulted by Gamhar Singh with Garasa and thereafter Ramdhani, Sunnar and Munnar had also assaulted him. This witness had stated that his brother Kail Parahia died on account of injury suffered by him. He has further stated that the paddy was being cut belonging to Surendra Singh. In his deposition P.W. 2 has also stated that during occurrence Gamhar Singh was armed with Garasa and Sunnar and Munnar were armed with Farsa. P.W. 3 Sri Ram Parahia has stated that when he reached near the place of occurrence, he heard some commotions. He also saw that his brother Kail Parahia was being assaulted by the appellants who were variously armed with weapons. In his cross examination, he had deposed that he was not called to cut paddy and he had seen the incident while he was going on his way. P.W. 4 Ram Khelawan Parahiya had also gone with others to cut paddy. He has stated about the assault committed by the accused persons. This witness had disclosed that on account of the same incident injuries were suffered by Gamhar Singh and Sunnar Singh. P.W. 5 Basudo Parahiya has deposed that he had gone to Turimunda village where he heard alarm and had also witnessed the incident. This witness could not say as to who assaulted Kail Parahaia and Surendra Parahaia. He had stated that none of the accused had suffered any injury. P.W. 5 Basudo Parahiya has deposed that he had gone to Turimunda village where he heard alarm and had also witnessed the incident. This witness could not say as to who assaulted Kail Parahaia and Surendra Parahaia. He had stated that none of the accused had suffered any injury. He had stated that Surendra Singh was seen with double barrel gun. P.W. 6 Charitra Parahia is a hearsay witness. P.W. 7 Dr. Ranjan Kumar Pandey conducted postmortem on the dead body of Kail Parahia. He had also examined P.W. 2 and several injuries were found on his person. P.W. 8 and 9, Tapeshwar Singh and Jagarnath Sah respectively have been tendered by the prosecution. P.W. 10 Sita Devi is the wife of deceased Kail Parahia. She had deposed that she was in her house and on receiving the news she had gone to Turimunda Village where she found her husband dead. P.W. 11 Nathu Singh is also one of the persons who had gone to cut paddy to Turimunda and he had also stated about the incident of assault. P.W. 12 Premchand Prasad is also an eye witness and he has also stated in details about the occurrence. P.W. 13 Sona Singh has stated about the occurrence and further stated that Gamhar Singh was the owner of the land where paddy was being cut. P.W. 14 Madan Prasad is a formal witness who had identified the signature of Ramdeo Mahto, the Officer-in-Charge of Ranka P.S. on the inquest report. The appellants were examined u/s 313 Cr.P.C. in which they had denied the allegations levelled against them. 5. After conclusion of the trial the appellants have been convicted for the offence punishable u/s 304(i)/34 and 307/34 of the Indian Penal Code (I.P.C.) and have been sentenced to rigorous imprisonment (R.I.) for 10 (ten) years u/s 304(i)/34 I.P.C. and further R.I. for 7 (seven) years for the offence punishable u/s 307/34 I.P.C. respectively which were to run concurrently. 6. Heard Mr. Ram Pravesh Sharma, learned counsel for the appellants and Mr. Anjani Kumar Toppo, learned A.P.P. for the State. 7. It has been submitted by the learned counsel for the appellants that one of the main persons, namely, Surendra Singh, at whose instance the deceased and others had gone to cut paddy crops was never examined by the prosecution. Heard Mr. Ram Pravesh Sharma, learned counsel for the appellants and Mr. Anjani Kumar Toppo, learned A.P.P. for the State. 7. It has been submitted by the learned counsel for the appellants that one of the main persons, namely, Surendra Singh, at whose instance the deceased and others had gone to cut paddy crops was never examined by the prosecution. It has also been stated that in absence of the evidence of Investigating Officer (I.O.), having not been examined, the same has caused prejudice to the defence. It has been submitted that due to non-examination of the I.O., the place of occurrence could not be proved. Learned counsel submits that the appellant No. 1 was in possession of the land where the incident is said to have taken place and Surendra Singh and others being the aggressors, the appellants had exercised their right of private defence and in such circumstance no offence can be said to have been committed by the appellants. Learned counsel submits that even the trial Court had come to a finding that the appellants had rightly exercised their right of private defence, but had exceeded such right by indiscriminatly assaulting the deceased as well as the injured persons. Learned counsel submits that P.W. 5 had clearly stated about the presence of Surendra Singh and others with guns and in fact this fact has been corroborated in the counter case of the defence in which the appellant No. 1 Gamhar Singh had suffered gunshot injury. Learned counsel further submits that the injuries on Gamhar Singh could not be explained by the prosecution and the entire facets of the case would suggest that it was Surendera Singh and others who were the aggressors and were forcibly cutting paddy on the land belong to the appellant No. 1 and therefore neither it can be said that the appellants had made an attempt to commit murder nor can it be said that the appellant had exceeded their right of private defence. 8. Learned A.P.P. for respondent-State has submitted that there has been consistent evidence of P.Ws. 2, 3, 4, 5, 12 and 13 about the incident and how the appellants by forming an unlawful assembly had brutally assaulted Kail Parahaia which led to his death as well as P.W. 2 suffering a number of injuries. 8. Learned A.P.P. for respondent-State has submitted that there has been consistent evidence of P.Ws. 2, 3, 4, 5, 12 and 13 about the incident and how the appellants by forming an unlawful assembly had brutally assaulted Kail Parahaia which led to his death as well as P.W. 2 suffering a number of injuries. Learned A.P.P. submits that the manner of assault and the nature of injury clearly reveals that the appellants had exceeded their right of private defence and therefore the appellants had rightly been convicted u/s 304(Part I)/34 I.P.C. and Section 307/34 I.P.C. 9. It appears form a perusal of the records that a proceeding was initiated u/s 145 Cr.P.C. in which the possession of the defence was declared over the land in which the occurrence is said to have taken place. It further appears that the revisional survey authority had passed an order in favour of the appellants. Nothing has been brought on record by the prosecution to suggest that the land in which the occurrence had taken place as a result of cutting of paddy at the instance of Surendra Singh belonged to Surendra Singh or he had some ownership over the said land. The prosecution has miserably failed to prove the ownership of Surendra Singh, whereas the defence has been successful in driving home the possession and the ownership of the appellants over the said land. This issue has also been considered by the learned trial court wherein it was held that Surendera Singh neither had title nor was in possession of the land in question. Having come to a conclusion that the land where the occurrence had taken place were indeed in possession and under the ownership of the appellants it is to be seen as to whether the appellants had exceeded their right of private defence. In the F.I.R. an innocuous statement was recorded with respect to the incident which led to the death of Kail Parahaia. In course of trial it has come to light in the defence of P.W. 4 who is also an eye witness that Surendra Singh and others were seen present at the place of occurrence armed with guns. This fact has been supported by the evidence of P.W. 5 and 6 and in fact P.W. 5 and 6 had categorically stated that they had heard gunshots but could not say as to who had fired. This fact has been supported by the evidence of P.W. 5 and 6 and in fact P.W. 5 and 6 had categorically stated that they had heard gunshots but could not say as to who had fired. Appellant No. 1 had instituted a case being S.T. Case No. 161 of 1988 from which it appears that he had suffered a gunshot injury. The circumstance therefore reveals the presence of Surendra Singh and others with guns which was used which can be gathered from the evidence of P.W. 5 and 6. The evidence of the witnesses as stated above does point to the fact that it was Surendra Singh and others who were the aggressors as their initial acts of cutting paddy from the land belonging to the appellants itself is suggestive of the said fact. Moreover, the act of Surendra Singh in hiring labourers from outside the village to cut paddy can be designed to mean that he had acted as passive provocateur to the incident. 10. Mr. Ram Pravesh Sharma, learned counsel for the appellants has referred to various judgments in order to substantiate his claim that the appellants did not exceed their right of private defence. In the case of Nagarathinam and others Vs. State represented by Inspector of Police, reported in (2006) 9 SCC 57 it was held as follows:- “20. The genesis of the occurrence is, therefore, shrouded in mystery. This occurrence, admittedly, took place, but who were thus initial aggressors i.e. the prosecution witness or the appellants, is difficult to say. The High Court has found that the prosecution had not been able to prove the charge of rioting. The appellants and others did not have any common object to cause death of the accused of (sic) the prosecution witnesses. We have noticed hereinbefore the nature of injuries on the persons of the appellants. The first appellant received two stab wounds and also an incised would over the scalp at frontal region. Appellant 2 received deep-cut would and an incised would over the scalp left side parietal region. Appellant 3 also received an incised scalp would over frontal parietal region. It is not denied and disputed that they were in the hospital as indoor parietals for a few days. We have furthermore noticed herein before that they were also arrested after a few days.” In the case of Puran Singh and others Vs. Appellant 3 also received an incised scalp would over frontal parietal region. It is not denied and disputed that they were in the hospital as indoor parietals for a few days. We have furthermore noticed herein before that they were also arrested after a few days.” In the case of Puran Singh and others Vs. The State of Punjab reported in AIR 1975 SC 1674 it was held that the question whether a person having a right of private defence has used more force than is necessary would dependant on facts and circumstances of a particular case. 11. The facts which have been discussed above in the present case reveal the presence of Surendra Singh and others with guns and shots were fired and a criminal case was also instituted by the appellant No. 1 for receiving a gunshot injury. The prosecution has been unable to explain the injury caused by the appellant No. 1. The place of occurrence is a land which was in the possession and the ownership of the appellants. The entire circumstance therefore would suggest that Surendra Singh and others were the aggressors as they had employed the deceased and others in cutting paddy from the land belonging to the appellants and therefore it cannot be said that the appellants in the facts and circumstances of the case had exceeded their right of private defence. 12. In view of the discussions made herein above, this appeal is allowed and the judgment and order of conviction dated 10.10.2002 and sentence dated 18.10.2002 passed by Sri D.N. Tiwari, the learned 4th Additional Sessions Judge, Fast Track, Garhwa in Sessions Case No. 163 of 1988, whereby and whereunder, the appellants have been found guilty and convicted for the offence punishable u/s 304(i)/34 and 307/34 of the Indian Penal Code (I.P.C.) and have been sentenced for rigorous imprisonment (R.I.) for 10 (ten) years u/s 304(i)/34 I.P.C. and further R.I. for 7 (seven) years for the offence punishable u/s 307/34 I.P.C., is hereby set aside. Since the appellants are on bail, they shall be discharged from the liability of their bail bonds forthwith. Appeal allowed.