CRIMINAL APPEAL No.216 OF 1988
Against the judgment of conviction and order of sentence dated
18.04.1988 passed by Sri Budhdeo Narain Singh, 8th Additional
Sessions Judge, Bhojpur, Arrah in S.T. No.328 of 1980.
1. Mahendra Rai
2. Kamla Rai
3. Srinath Rai, all sons of Ram Swaroop Rai.
4. Kapil Muni Rai son of Lalji Rai.
5. Hira Rai,
6. Ram Pravesh Rai, both sons of Ram Narayan Rai.
7. Kameshwar Rai son of Bhuneshwar Rai.
8. Dhanraj Ahir son of Jhapsi Ahir.
9. Ram Nath Ahir @ Rajnath Ahir, son of Mulki Ahir
All residents of village Tetrahar, P.S. Navanagar, District
Bhojpur.
--------------Appellants
Versus
THE STATE OF BIHAR ------- Respondent
With
CR. APP (DB) No.281 of 1988
Radha Mohan Rai son of Ram Sakal Rai, resident of village
Tetrahat, Police Station- Nawanagar, District Bhojpur ————-
—Appellant
Versus
THE STATE OF BIHAR- —————Respondent
With
CR. APP (DB) No.308 of 1988
Brahmadeo Rai son of Ram Swaroop Rai, resident of village
Tetrahat P.S. Nawanagar, District Bhojpur.
———-Appellant
Versus
THE STATE OF BIHAR—————Respondent
For the appellants:- Sri Anil Kumar Singh Amicus Curiae)
&
Sri Neeraj Kumar-Amicus Curiae
PRESENT
THE HON’BLE SRI JUSTICE DHARNIDHAR JHA
THE HON’BLE SRI JUSTICE BIRENDRA PRASAD VERMA
Dharnidhar Jha & There are a host of lawyers whose names appear in the cause
Birendra Prasad Verma, JJ
list as Advocates holding powers on behalf of the appellants of the three
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appeals. In spite of sending words no one appears. When we resumed
out seat today Sri Manish Kumar, Advocate, appeared and
communicated to us that Shri Pushkar Narain Shahi, whose name also
appears in the array of the advocates for the appellants, does not hold
brief on behalf of any of the appellants. We requested Sri Kumar to
inform Sri Shahi to personally inform us and, accordingly, Sri Shahi
appeared before us and submitted that at the time of being initiated into
law- practice as a member of one of the Bar Associations of the Court,
Senior counsel late S.B.N.Singh could have obtained his signature on
the power. The fact was that Shri Shahi was neither the custodian of the
brief nor has any knowledge about it. Under such circumstances we are
forced to look for an amicus curiae. Sri Anil Kumar Singh was present
in Court and he offered to assist us and, accordingly, we appoint him as
an amicus curiae, on behalf of appellants in Cr. Appeal No. 216 of 1988
and Sri Niraj Kumar, Advocate, in remaining two appeals.
2. We may appoint amicus curiae for the appellants but the
problem remains before us is that who should be appointed as an
amicus curiae for the State as well, as none of its counsel is present in
Court to render assistance to us. We believe that hearing the parties,
especially the State would be a prerogative of its counsel, if he appears,
as it appears from section 386 of the Code of Criminal Procedure. We,
as such, have proceeded to hear and dispose of the batch of three
criminal appeals.
3. The case relates to disputed question of possession over a
particular piece of land between the two parties. The informant claims
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to have purchased the land from one Sukhbilasho Kuer. The total area
purchased by him, as may appear from the evidence of P.W.3, Garjan
Singh, was about 6 bighas and he claimed to be coming in possession
over the same.
4. It was alleged by him that he, along with his nephew
Jagdish Singh ( the deceased) and his son Lalbahadur Singh, went to
irrigate the field. He was resisted by the accused and at the
remonstration of the appellant, Kapilmuni Rai, appellant Radhamohan
Rai fired a shot at Jagdish Singh which hit him in his chest and thigh,
as a result of which he fell down and later died in Patna. As regards the
informant, he alleged that he was assaulted by appellants Mahendra Rai
with farsa, Brahmdeo Rai with bhala and Srinath Rai with lathi.
5. The informant also fell down. However, P.W.2, Lalbahadur
Singh, fled away from there to save himself. The informant stated in his
fardbeyan, Ext-3, that Sudama Singh (not examined) Chandrama Singh,
(P.W.1) and some others, who were also named in the F.I.R. and who
were examined by the prosecution, had seen the occurrence.
6. On the basis of Exhibit-3, the F.I.R. was drawn up and
the investigation was proceeded with which ultimately ended in sending
up of the appellants for trial.
7. The defence of the appellants was of false implication on
account of the land dispute and, further, that no occurrence in the
manner as alleged had taken place at the place of occurrence.
8. The prosecution examined five witnesses in support of
charges which were initially under sections 147 and 324 against all the
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accused persons and under section 148 and 302/149 I.P.C. against
Radha Mohan Rai and others. Out of the five witnesses, Murat Rai, an
Advocate’s Clerk, was examined to give evidence of formal character and
he proved the writing and signatures of Investigating Officer of the case-
diary, (Ext.1), F.I.R. (Ext.2), Fardbeyan (Ext. 3) and the inquest report
(Ext. 4). Likewise, P.W.5, Surendra Singh, was also a witness of formal
character who gave evidence on being acquainted with the writings of
the doctor who held postmortem examination and wrote down the
report, Ext.5. Thus, the Investigating Officer of the case and the doctor
were also not examined.
9. The defence produced documents in support of their
defence and claimed the property in dispute and they also examined its
solitary witness, namely, D.W. 1 Pashupati Nath Upadhaya who brought
on record an affidavit sworn by one Ram Pravesh Rai. In addition to
bringing on record the copies of the F.I.R. and the charge-sheet of a
criminal case, the defence produced copies of orders passed by the
Anchal Adhikari and the D.C.L.R. in mutation case and appeal, besides
producing the khatian in respect of the disputed land.
10. After considering the evidence of the parties the learned
court below held the appellants guilty of committing the offence under
sections 302 read with section 149 of the Penal Code and directed all
the appellants except Radhamohan Rai to suffer rigorous imprisonment
for life. Appellant Radha Mohan Rai was convicted under sections 148
and 302 of the Penal Code and was ordered to suffer rigorous
imprisonment for three years and for life respectively under the above
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sections of the penal Code. All the remaining appellants except
Mahendra Rai were convicted also for committing an offence under
section 147 of the Penal Code and were directed to suffer R.I. for one
year. Appellant, Mahendra Rai was ordered to suffer R.I. for two years
for offences under section 148 of the Penal Code.
11. Learned Amicus curiae, appearing for the appellants,
submitted that the court below had held that there were materials
sufficient on record indicating as if the appellants were in possession of
the disputed property. It was further contended that the genesis of the
occurrence which relates to the land in question appears not
established nor the place of occurrence was established as the
Investigating Officer did not find any blood over the disputed plot nor
did the Investigating Officer find any trampling mark over it. It was
submitted that it was a thoroughly ploughed up land and no blood was
found in any part of the plot. It was submitted that the independent
witnesses were not examined who had assembled there or were already
present at the scene of the occurrence.
12. The case of the prosecution is that the informant along
with the deceased and P.W. 2 had come to irrigate the land and in fact
had filled the land with water. It is also stated by P.W. 3 in his evidence
and the same is supported by P.W. 2, his son, Lalbahadur Singh that
they had cut the ridge of the canal to bring the water into the field and it
had been completely filled up. The very initial case, as contained in
fardbeyan, was that the informant had to sow the paddy seeds in the
field and for that the field had been watered. The water had receded
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and the informant along with his nephew and son was filling the water
again when the occurrence took place. But, the trial court after perusing
the case diary had to record the findings of the investigating that the
P.O. field appeared freshly ploughed. The above findings of the
investigating officer have been explained by the learned trial Judge on
mere conjecture. We want to bring on record that the Investigating
Officer has recorded in his case diary about the place of occurrence in
the inspection part of the document that he found the filed thoroughly
ploughed up and that there was no water or sign of irrigation of it. The
learned trial judge has noted in paragraph-17 at page 76 of the paper-
book that might be that the accused persons after the occurrence
ploughed up the field in order to erase the evidence of irrigation. We do
not subscribe to the above view of the learned trial Judge especially
when the finding favourable to the accused persons that no sign of
irrigation was available on the place of occurrence, the field was
recorded by the I.O. If the Investigating Officer had not found any sign
of irrigation or if no water was found in the field then the court cannot
distort the fact on its own imagination and conjectures and record a
finding which could not be coming out of the materials on record. We
are of the opinion that the finding recorded by the Investigating Officer
on the complete absence of any evidence of the field being irrigated on
the date of the occurrence was there. If this could be so then the very
genesis of the occurrence that the accused persons had come to resist
the irrigation of the field by the informant and his two companions
cannot be accepted. In that view of the matter, we don’t have any
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hesitation in recording that the prosecution failed in establishing the
genesis of the case or the origin of the occurrence and its very
substratum on which the very edifice of the case is built up.
13. P.Ws. 2 and 3 the witnesses who are the father and son
between them, have come only to support the prosecution case. In the
evidence of P.W.3 which was rendered in court, it was categorically
stated by him in paragraph-7 that Chandrama Singh, Sudama Singh
and Muneshwar Singh had come and according to him they were the
witnesses to the occurrence. The above named persons, have been
named in the F.I.R. also as witnesses to the occurrence, out of whom
Chandra Singh was examined but he has not stated as to who had fired
the shot and who assaulted by what weapons. The other witnesses were
not produced for their evidence in the court. In his evidence P.W. 1 has
stated that there were many persons working or grazing buffalo in the
neighbouring plots and the message about the occurrence was sent to
the villagers through some of the ploughmen. Those ploughmen and
other persons have neither been produced nor examined in court. There
is a clear finding recorded by the learned trial Judge in paragraph-12 of
the judgement on the basis of some orders passed by the Anchal
Adhikari and the Land Reforms Deputy Collector that the accused
persons were coming in possession of the land. But the accused persons
have been held guilty by the learned trial Judge on the only premises
that they do not set up the plea of exercising or acting in exercise of
right of their private defence of property.
14. We are constrained to point out that an accused is not
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required to plead right of private defence. During the course of
argument it could be shown by the defence after pointing out the
evidence to witnesses that the accused persons might have acted in
exercise of their right of private defence either of person or of property
and as such their acts would be presumed in law as no offence. The
accused persons need not plead the exercise of the right of private
defence specifically. They could bring relevant facts on record by cross
examining the witnesses or by eliciting admission from them which may
be indicate the probability of exercise of their right of private defence
either of person or of property and the court would be well within its
jurisdiction to consider the plea and record a finding.
15. There is no denial of the fact that there was a dispute in
respect of possession between the parties over the disputed plot. The
informant was claiming possession through a couple of deeds which
were executed by Sukhbilasho Kuer. However, the documents like
exhibit D series indicate that there was a clear finding from the revenue
authorities in favour of the accused persons that they were in
continuous possession. It is too well known to be stated that the orders
of revenue Officers on question of possession are passed only after due
enquiry is held and that includes holding of local inspection by
Karamchari or the Circle Inspector. Hence there is a presumption that
their reports may not be incorrect. If there is evidence on record
showing that the accused persons were coming in possession of the
disputed plot since long, then they could be held to be in settled
possession of the land. In view of the above, no one could unsettle their
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possession by forcibly taking the possession or by stealthily taking
possession of the land. The accused persons could be within their rights
not only to resist any attempt of dispossessing them from any property
but they could also be within their rights to use force to repel such an
aggression over the properties which is in their possession.
16. A question, as such, may arise as to whether they
exceeded the right of private defence. We could simply recall the
observations of the Supreme Court in A.I.R. 1965 SC 202( Masalti Vrs.
State of U.P. & Ors.) in which the Apex Court held that when one was
faced with immediate threat of being ousted from the possession one
could not be expected to take recourse to legal proceedings and one
could very well be within his rights to use force to repel such an
aggression. If one could be using force to repel such aggression, then
one could not be expected to weigh the force in “golden scales”. We are
of the opinion that it might be a case lying somewhere near that very
class of case.
17. Besides, we find the case suffering from many
infirmities. The doctor was not examined. So it remains within
speculation as to what was the cause of death of Jagdish Singh. The
Investigating Officer was not examined and again evidence which could
have been in favour of the accused or in favour of the prosecution could
not be brought on record. Some important witnesses, who were named
in the F.I.R. and those who could be present around the scene of
occurrence when the occurrence had taken place, were neither
produced nor examined by the prosecution. There is complete lack of
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tangible explanation in that behalf. No explanation was forthcoming
from the prosecution as to why important witnesses were not examined.
We have already discussed the failure of prosecution to establish the
substratum of the case. In the light of the above, we are of the view that
it was a case in which the prosecution had not succeeded in proving its
case, which entitles the appellants to the benefit of doubt.
18. In the result, these three appeals are allowed. The
appellants are acquitted of the charges. They are all on bail and, as
such, they are discharged from the liabilities of their respective bonds.
( Dharnidhar Jha, J )
( Birendra Prasad Verma, J )
Patna High Court
Dated, the 24th of
February, 2010
BTiwary/ NAFR