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2018 DIGILAW 1474 (JHR)

Sahju Pahan v. State of Jharkhand

2018-07-09

B.B.MANGALMURTI, H.C.MISHRA

body2018
JUDGMENT : H.C. MISHRA, J. 1. Heard learned counsel for the appellants and the learned counsel for the State. 2. The appellants are aggrieved by the impugned Judgment of conviction dated 28.02.2006 and Order of sentence dated 04.03.2006, passed by the learned 18th Additional Judicial Commissioner, Ranchi, in S.T. No. 377 of 1990, whereby the appellant Sahju Pahan has been found guilty and convicted for the offences under Sections 323, 147, 302 / 149 of the Indian Penal Code, appellant Bhoja Pahan has been found guilty and convicted for the offences under Sections 148, 302 / 149 of the Indian Penal Code, and the appellants Dupka Pahan and Gobardhan Mahto have been found guilty and convicted for the offence under Sections 148 and 302 of the Indian Penal code. Upon hearing on the point of sentence, the appellants convicted under Sections 302 and 302 / 149 of the Indian Penal Code, have been sentenced to undergo imprisonment for life with fine of Rs.5,000/-. each, the appellants convicted under Section 148 of the Indian Penal Code have been sentenced to undergo R.I. for two years each, and the appellant Sahju Pahan has been further sentenced to undergo R.I. for one year for the offence under Section 147 of the Indian Penal Code and R.I. for 6 months for the offence under Section 323 of the Indian Penal Code, and all the sentences were directed to run concurrently. 3. It may be stated that three other lady co-accused persons who were also tried alongwith these appellants have been acquitted of the charge. Other two co-accused persons Binand Pahan and Anand Pahan died during the pendency of trial, and one Panchit Pahan claimed to be juvenile during trial, and his case was separated. 4. The case relates to triple murder and the prosecution case was instituted on the basis of the fardbeyan of the informant Phalindra Pahan, son of one of the deceased Bodhi Pahan, recorded on 02.11.1988 at about 12:55 P.M., near the house of one Riyasat Ansari, of village Mandro, P.S. Ormanjhi, District-Ranchi. In his fardbeyan the informant has stated that his agriculture land was situated at about 500 yards from his house, in which paddy was grown. He has stated that the decree of the land was passed in his favour by the Ranchi Court. In his fardbeyan the informant has stated that his agriculture land was situated at about 500 yards from his house, in which paddy was grown. He has stated that the decree of the land was passed in his favour by the Ranchi Court. On 02.11.1988 at about 10:30 A.M., he saw the three lady co-accused persons named by him, harvesting the paddy crop in the land and all the other male accused persons named in the fardbeyan, including these appellants, were sitting near the field. When the informant and his father saw the accused persons harvesting the paddy crop, they also informed their uncles Jodhi Pahan, Ludoo Pahan and cousin Ravna Pahan, and they went to the field forbidding them from harvesting the paddy crop. It is alleged that thereupon Bhoja Pahan assaulted his father Bodhi Pahan by lathi causing injuries on his head and other parts of the body, and when his father started fleeing away, he was also assaulted by bhala by Bhoja Pahan causing injuries on his head, but his father fled away. His uncle Ludoo Pahan was assaulted by Dupka Pahan by farsa and Panchit Pahan also assaulted him by farsa, due to which he fell down in the field. His uncle Jodhi Pahan was assaulted by Gobardhan Mahto and Binand Pahan by farsa and lathi respectively, due to which he also fell down in the field. The informant and his cousin Ravna Pahan were also assaulted by the accused persons and upon the alarm raised by the informant’s side, the accused persons fled away. His uncle Ludoo Pahan and Jodhi Pahan were having bleeding injuries on their body and both of them died at the spot. The informant has alleged that all the accused persons who were variously armed with lathi, bhala, farsa, sword etc., had assaulted them upon preventing them from harvesting the paddy crop and had committed the murder of his two uncles and injured the other persons. On the basis of the fardbeyan of the informant, Ormanjhi P.S. Case No. 100 of 1988 corresponding to G.R. No. 3445 of 1988, was instituted for the offences under Sections 147, 148, 302, 307 and other offences under the Indian Penal Code, and investigation was taken up. Subsequently, Bodhi Pahan the father of the informant, also died. After investigation the police submitted the charge-sheet in the case. 5. Subsequently, Bodhi Pahan the father of the informant, also died. After investigation the police submitted the charge-sheet in the case. 5. After commitment of the case to the Court of Session, charge was framed against the appellant Sahju Pahan for the offences under Sections 323 147, 302 / 149 of the Indian Penal Code, against the appellant Bhoja Pahan for the offences under Section 148, 302 / 149 of the Indian Penal Code, and against the appellants Dupka Pahan and Gobardhan Mahto for the offences under Sections 148 and 302 of the Indian Penal Code, and upon the accused persons' pleading not guilty and claiming to be tried, they were put to trial. In course of trial, eight witnesses were examined by the prosecution, including the Doctor, who had conducted the post-mortem examinations on the dead bodies. The I.O. of the case has not been examined by the prosecution. 6. P.W.-4 is Phalindra Pahan, the informant of the case and son of the deceased Bodhi Pahan. This witness has stated that the occurrence had taken place about 15 years ago at about 10:00 A.M. He alongwith his father and uncles and cousin had gone to prevent the accused persons, who were harvesting the paddy crop, whereupon Bhoja Pahan assaulted his father by lathi on his leg due to which he fell down and he assaulted his father by farsa on his head, whereupon his father fled away towards his house. Ludoo Pahan was assaulted by Dupka Pahan and Panchit Pahan by farsa, due to which he died at the spot. Jodhi Pahan was assaulted by Binand Pahan due to which he fell down and Gobardhan Mahto assaulted him by farsa due to which he also died at the spot. Bhoja Pahan had assaulted this witness on his hand and Sahju Pahan assaulted Ravna Pahan by farsa on his hand and thereafter the accused persons fled away. He gave his fardbeyan to the police and all the injureds were medically examined. He had put his thumb impression on the fardbeyan. This witness has stated that he had given the fardbeyan at the Police Station and one Nasiruddin, who had accompanied him to the Police Station, had put his signature as witness on the fardbeyan. He has identified the accused persons in the Court. He had put his thumb impression on the fardbeyan. This witness has stated that he had given the fardbeyan at the Police Station and one Nasiruddin, who had accompanied him to the Police Station, had put his signature as witness on the fardbeyan. He has identified the accused persons in the Court. In his cross-examination this witness has stated that at the time of occurrence, no one of the village had assembled there. He has stated that the place of occurrence is only 500 yards away from his village and about 200 to 300 persons live in the village. He has stated that there was land dispute between the accused persons and his father, and Bodhi Pahan, Jodhi Pahan etc., had filed a case for recovery of possession. He has denied the suggestion that they had lost the said case for recovery of possession. He has also stated that they were not cultivating the land for the last 15 years due to fear. This witness has stated that he had seen the occurrence. This witness has also stated that Sahju Pahan and Gobardhan were armed with farsa and ladies were having hasua. The Police had seized the blood stained soil and farsa, lathi etc., from the place of occurrence. Weapons were also recovered from the house of the accused persons, who were arrested by the police. He has stated that the accused persons had also filed a case upon them which was a false case. He has denied the suggestion that Sahju Pahan etc., were harvesting the paddy in their own land, whereupon the informant’s side went there and started the quarrel. He has also stated that he could file the documents of the land. 7. P.W.-1 Mahendra Pahan, the other son of deceased Bodhi Pahan, has also supported the prosecution case as eye witnesses to the occurrence, more or less in the same manner as stated by P.W.-4 Phalindra Pahan. In his cross-examination he has also stated that the accused persons are his agnates and there was land dispute between them. He has also stated that his father had filed a case upon the accused persons for recovery of possession, in which the decree was passed in his favour and thereafter they had taken possession over the land. He has also stated that the accused persons had also lodged a case against them. He has also stated that his father had filed a case upon the accused persons for recovery of possession, in which the decree was passed in his favour and thereafter they had taken possession over the land. He has also stated that the accused persons had also lodged a case against them. This witness has stated that the place of occurrence is at a distance of about 400 yards from his house and there are about 250 to 300 houses in his village. In his cross-examination he could not give the details of the land on which the occurrence had taken place, but has stated that the area of land was 0.85 decimals. He has denied the suggestion that they had attacked the accused persons and had started the quarrel. 8. P.W.-2 Ravna Pahan has also supported the prosecution case as eye witnesses to the occurrence, more or less in the same manner as stated by P.W.-4 Phalindra Pahan. He has also shown the scar of injury on his right hand in the Court, and has stated that Bodhi died in the hospital. In his cross-examination this witness has stated that they had not assaulted the accused persons, but the accused persons had filed a false case upon them also. He has also stated that there was land dispute between them and the case was decided in their favour and he could produce the decree in the Court. He has also stated that the place of occurrence is at a distance of about 600 to 700 yards from his house and there are about 300 houses in his village. He has also stated that the occurrence had taken place at about 10:30 A.M. in the morning, but no other villager had come there. 9. P.W.-3 Raj Mohan Pahan, who is the son of the deceased Ludoo Pahan, has also supported the prosecution case as eye witnesses to the occurrence, more or less in the same manner as stated by P.W.-4 Phalindra Pahan. He has also given the details of the land of occurrence, which bears Khata No. 75, Plot No. 421, area 0.85 decimals, on which the accused persons were harvesting the crop when the occurrence had taken place. He has also given the details of the land of occurrence, which bears Khata No. 75, Plot No. 421, area 0.85 decimals, on which the accused persons were harvesting the crop when the occurrence had taken place. In his cross-examination he has also admitted that there was a case for the same land between them and there are about 300 houses in the village, but no one of the village, except his family members, had assembled at the place of occurrence. 10. P.W.-5 Altaf Ansari is only a witness to the seizure of one farsa, two lathis and one iron rod from the house of Bhoja etc. He has proved his signature on the seizure list which was marked Exhibit-4. He has not stated anything about the occurrence. 11. P.W.-6 Dr. Saroj Kumar had conducted the post-mortem examinations on the dead bodies of all the deceased on 03.11.1988. On the dead body of Ludoo Pahan he had found the following injuries:- Abrasion : i. 2 x 1 c.m. on mid part lateral side of left arm. ii. 1 x 1 c.m. ½ x ½ c.m. on right elbow back. iii. 1 x 1 c.m. on right wrist. iv. 3 x 2 c.m. on top of right shoulder. Incised Wound : i. 7 x 1 c.m. x bone deep vertically on mid line on frontal region of head cutting the bone underneath partially. ii. 20 x 1½ c.m. horizontally on both parietal region of head extending from left ear upper part to right occipital region of head cutting the left temporo parietal and right parieto occipital bone completely, dura mater and brain. There was presence of subdural blood and blood clots over both parieto occipital region of brain. He has stated that all the injuries were ante-mortem in nature, caused by hard and blunt substance and incised wounds were caused by heavy sharp cutting weapon. Death was due to head injuries. He has proved the post-mortem report to be in his pen and signature, which was marked Exhibit-2 On the same day he had conducted the post-mortem examination on the dead body of the deceased Jodhi Pahan, on which he found the following injuries:- Abrasion: i. 2 x ½ c.m. ½ x ½ c.m. ½ x ½ c.m. and 3 x ½ c.m. on lateral side of right arm middle part. ii. 3 x 2 c.m. below right knee. ii. 3 x 2 c.m. below right knee. Lacerated : i. 3 x 1 c.m. x soft tissue deep about left eyebrow. ii. 5 x 2 c.m. x scalp deep in right parietal region of head. Incised : i. 13 x 2 c.m. on left occipito-parietal region of head cutting elbow underlying bone and dura mater completely and brain partially. ii. 4 x 2 c.m. x muscle deep on left scapular region. There was presence of subdural blood and blood clots over left hemisphere of brain. He has stated that all the injuries were ante-mortem in nature. Abrasions and lacerated wounds were caused by hard and blunt substance and incised wounds were caused by heavy sharp cutting weapon and death was due to head injuries. He has proved the post-mortem report to be in his pen and signature, which was marked Exhibit- 2/1. On the same day he had conducted the post-mortem examination on the dead boy of Bodhi Pahan and has found the following injuries:- Abrasion : i. 8 x 2 c.m. on middle of lateral side of left arm. Lacerated : i. 5 x 1 c.m. x scalp deep vertically 2 c.m. left for mid line on parietal region of head. Internal : There was diffuse contusion of whole scalp and both temporal muscles. There was fracture of left fronto-parietal bone and fracture line extended to right parietal bone. There was epidural and subdural blood and blood clots over both hemispheres of brain. He has stated that all the injuries were ante-mortem in nature caused by hard and blunt substance and death was due to head injuries. He has proved the post-mortem report to be in his pen and signature which was marked Exhibit- 2/2. 12. P.W.-7 is Aslam Ansari, who is a formal witness, who has proved the fardbeyan, which was marked Exhibit-3, and the formal F.I.R., which was marked Exhibit-4, as the I.O. of the case has not been examined in the case. 13. P.W.-8 Rajendra Singh had only brought the dead bodies for post-mortem examination. 14. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein all the accused had denied the evidence against them. 13. P.W.-8 Rajendra Singh had only brought the dead bodies for post-mortem examination. 14. The statements of the accused persons were recorded under Section 313 of the Cr.P.C., wherein all the accused had denied the evidence against them. The defence has also examined two witnesses and has also proved one document, which is the certified copy of order dated 5.11.1985, passed in Buihari Case No. 85/86 of 1983-84, between Ludoo Pahan and Anand Pahan, passed by the Special Officer, Ranchi, under the C.N.T. Act. This document has been proved as Exhibit-A, and it relates to the same land bearing Khata No. 75, Plot No. 421, Area 0.85 decimals. The order shows that Ludoo Pahan etc., had filed the case for recovery of possession of the land from Anand Pahan, but the case was dismissed. Though this is not a reasoned order, but the fact remains that it accepts the possession of Anand Pahan etc., on the land in dispute. 15. The witnesses D.W.-1 Ramcharan Munda and D.W.-2 Tulsi Munda, have been examined by the defence to show that the occurrence had taken place due to land dispute between the parties, which was decided in favour of Anand Pahan etc., the land was in possession of Anand Pahan etc., and cultivation was also done by them. 16. Learned counsel for the appellants has submitted that the impugned Judgment of conviction and the Order of sentence passed by the Trial Court below cannot be sustained in the eyes of law, in as much as, all the witnesses are highly interested witnesses and the enmity between the parties due to the land dispute is an admitted fact by all the material prosecution witnesses in their cross-examinations. Though the occurrence had taken place at about 10:30 A.M. in the morning, and the land is situated very near to the village, in which it is admitted by the witnesses, that there are 250 to 300 houses, but it is also stated that none of the villagers visited the place of occurrence, which is very strange and cannot be believed, particularly, in view of the fact that two persons had died at the spot and one person was also badly injured, who died later. Learned counsel submitted that the Investigating Officer has not been examined in the case, which has seriously prejudiced the defence case, as nothing could be taken from the I.O., about the land dispute and whether the statements of the other independent witnesses were recorded by the police or not. Learned counsel also submitted that the defence has brought on record the document to show that the defence side was in possession over the land in dispute, and concluded that the prosecution has failed to bring charges against the accused persons beyond all reasonable doubts, and the false implication of the accused persons due to the admitted enmity for the land dispute, cannot be ruled out. 17. Learned counsel for the State on the other hand has submitted that no prejudice has been caused to the defence due to non-examination of the I.O. It is submitted that all the eye witnesses are the natural eye witnesses to the occurrence and they were also injured in the occurrence, and they have fully supported the prosecution case. Their ocular evidence is also corroborated by the medical evidence of P.W.-6 Dr. Saroj Kumar, and the post-mortem report proved by him as Exhibit 2 series. The place of occurrence and the manner of occurrence are fully proved in the case, and as such, there is no illegality in the impugned Judgment of conviction and Order or sentence passed by the Trial Court below. 18. Having heard learned counsels for both the sides and upon going through the record, we find that it is an admitted fact that the occurrence had taken place due to the land dispute between the parties. Both the parties are agnates as admitted by P.W.-1 Mahendra Pahan in his cross-examination. All the witnesses, namely, P.W.-1 Mahendra Pahan, P.W.-2 Ravna Pahan, P.W.-3 Raj Mohan Pahan and P.W.-4 Phalindra Pahan, the informant, have admitted the land dispute between the parties, but they have claimed that the land was in their possession pursuant to the decree passed by the Court. Though P.W.-4 Phalindra Pahan and P.W.-2 Ravna Pahan, have also stated in their cross-examination that they could produce the decree in the Court, but they have not proved any such document. Though P.W.-4 Phalindra Pahan and P.W.-2 Ravna Pahan, have also stated in their cross-examination that they could produce the decree in the Court, but they have not proved any such document. All these witnesses have admitted that the case was filed for recovery of possession against the accused persons, which clearly goes to show that the land in dispute was in possession of the defence side and not in possession of the prosecution side. Indeed P.W.-4 Phalindra Pahan, the informant has also admitted that they were not cultivating the land for the last 15 years due to fear. On the other hand the defence has brought on record the order passed by the Special Officer, Ranchi, which is Annexure-A, which shows that the same land in dispute was in possession of the defence side and not in the possession of the prosecution side, and the case filed by Ludoo Pahan for recovery of possession was dismissed. It is thus, apparent that the prosecution side had made out a false case that the land dispute was decided in their favour, the land was in their possession and the paddy was cultivated by them. It is also admitted by the prosecution witnesses in their cross-examination that for the occurrence of the same day, a case was also filed upon them by the defence side, which they claim to be a false case. We find from the evidence on record that the prosecution has utterly failed to prove that the land in dispute was in their possession and they had cultivated the land. We also find that Paddy was cultivated by the defence side and the defence side were validly harvesting the paddy crop, and when the prosecution side went to object it, there was quarrel between them and the occurrence had taken place. 19. We are of the considered view that since it was the prosecution side who were the aggressors, the defence side were having the right of private defence of the property, to defend their property, which under Section 103 of the Indian Penal Code, might have extended to causing the death. It may be a case that the defence side might have exceeded their right of private defence, but in absence of examination of any independent witness by the prosecution, even that conclusion cannot be arrived at. It may be a case that the defence side might have exceeded their right of private defence, but in absence of examination of any independent witness by the prosecution, even that conclusion cannot be arrived at. Admittedly, all the witnesses examined by the prosecution are highly interested witnesses and not a single independent witness has been examined by the prosecution in spite of the fact that the occurrence had taken place at about 10:30 A.M., and the place of occurrence was quite close to the village, where admittedly about 300 houses were there. The evidence of the prosecution witnesses that no one of the village came at the place of occurrence, just cannot be believed, in view of the fact that two persons had died at the spot and one person was seriously injured, who died later. Though the informant and his cousin Ravna Pahan also claim to be assaulted and injured by the accused persons, but they have not been able to prove this fact with the help of any medical evidence, as no Doctor has been examined by the prosecution to prove their injury. P.W.-2 Ravna Pahan had shown a scar mark of injury in the Court, but there is no cogent evidence of the fact that it was the scar of the injury received in that occurrence. We are of the considered view that in the facts of this case, the evidence of the highly interested witnesses cannot be made the basis for conviction of the accused persons, and in any event the accused appellants were entitled at least to the benefits of doubt, even though this is a case of triple murder committed in broad day light. 20. For the foregoing reasons, the impugned Judgment of conviction dated 28.02.2006 and Order of sentence dated 04.03.2006, passed by the learned 18th Additional Judicial Commissioner, Ranchi, in S.T. No. 377 of 1990, convicting and sentencing the appellants Sahju Pahan, Bhoja Pahan, Dupka Pahan and Gobardhan Mahto, for the offences under Sections 147, 148, 323, 302, 302 / 149 of the Indian Penal Code, cannot be sustained in the eyes of law, and the same, are hereby, set aside. Consequently, all the appellants are given the benefits of doubt and they are acquitted of the charges. Appellants Sahju Pahan, Bhoja Pahan and Dupka Pahan are in custody, undergoing the sentence. Consequently, all the appellants are given the benefits of doubt and they are acquitted of the charges. Appellants Sahju Pahan, Bhoja Pahan and Dupka Pahan are in custody, undergoing the sentence. They are directed to be released and set at liberty forthwith, if their detention is not required in any other case. Appellant Gobardhan Mahto is on bail, and he is discharged from the liabilities of his bail bond. 21. Both these appeals are accordingly, allowed. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy of this Judgment. B.B. Mangalmurti, J. : I agree Appeals allowed.