Criminal Appeal (DB) No.409 OF 2004
Against the judgment of conviction dated 16.04.2004
and order of sentence dated 17.04. 2004 passed by
Shri A.K.M.M.Qureshi, 3rd Addl. Sessions Judge,
Saharsa in Sessions Trial No. 53 of 1993(s).
---------------
Ramjee Mehta, son of Ram Kishun Mehta @ Bal
Kishun, resident of Village- Brahampur, P.S.Birpur,
District- Supaul (Saharsa).
.............................................(Appellant)
Versus
The State of Bihar.
...............................................(Respondent)
WITH
Criminal Appeal (DB) No.411 of 2004
Against the judgment of conviction dated 16. 04. 2004
and order of sentence dated 17. 04. 2004 passed by
Shri A.K.M.M. Qureshi, 3rd Addl. Sessions Judge,
Saharsa, in Sessions Trial No. 53 of 1993(s).
1. Umesh Mehta, son of Ramjee Mehta.
2. Ramswarup Mehta, son of Munga Lal Mehta.
3. Prabhu Mehta, son of Ram Kishun Mehta.
4. Ramakant Mehta, son of Prabhu Mehta.
All are resident of Village- Brahampur, P.S.- Birpur,
District- Supaul (Saharsa).
................. ..............................Appellants.
Versus
The State of Bihar
.....................................................Respondent.
For the Appellants :- M/s Akhileshwar Pd. Singh, Sr. Advocate.
And Girish Pd. Gupta, Advocate.
For the State :- Shri Ashwani Kr. Sinha, Advocate.
For the Informant :- Shri O. P. Upadhyay, Advocate.
Shri Manoj Kumar Singh, Advocate.
Shri Mithilesh Kumar Upadhyay, Advocate.
PRESENT
THE HON'BLE MR. JUSTICE SHYAM KISHORE SHARMA
THE HON'BLE MR. JUSTICE GOPAL PRASAD
Shyam Kishore Heard learned counsel for the appellants and
Sharma &
Gopal Prasad,JJ.
learned counsel for the State.
2. Two appeals i.e. Cr. Appeal No. 409 of 2004 and
411 of 2004 have heard together and being disposed by the
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common order as both the appeals are against the judgment
and order passed in Sessions Trial No. 53 of 1993 which
arises out of Birpur P.S. Case No. 96 of 1991 (under
Saharsa District) for by which the appellants have been
convicted for offence under Sections 302/149, 307/149,
324/149 and 323/149 of the Indian Penal Code and have
been sentenced to undergo rigorous imprisonment for life
for offence under Section 302/149 of the Indian Penal Code
and has further sentenced to undergo rigorous imprisonment
for seven years for conviction under Section 307/149 of the
Indian Penal Code and further sentence to undergo Rigorous
Imprisonment for two years for offence under Section
324/149 of the Indian Penal Code and further sentence to
undergo rigorous imprisonment for one year under Section
323/149. However, it has been ordered that all the sentence
run concurrently. The appellant Ramjee Mehta has further
been found guilty for offence under Section 302 of the
Indian Penal Code and has been sentenced to undergo
Rigorous Imprisonment for life.
3. The prosecution case as alleged in the Fardbeyan
by the informant Rajendra Mahto that on 24. 11. 1991 at
about 14.00 hours ( 2 P.M.) the father of the informant
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Sewak Mehta, Sriprasad Mehta, Mishrilal Mehta and
Mahendra Mehta went to work in the field of radish,
cauliflower and potato which they have grown. Then the
accused Ramjee Mehta, Prabhu Mehta, Ramakant Mehta,
Umesh Mehta, Ramswarup Mehta, Koa Mandal, Trideo
Gupta, Jagdish Gupta, Shatrudhan Gupta came forming an
unlawful assembly armed with Bhala, Farsa, Hansa and
lathi. They surrounded the prosecution party and assaulted
them by Bhala, Hasa and Farsa. Ramjee Mehta assaulted
Sewak Mehta with Hansa on the abdomen causing intestine
bulge out from stomach. Later on Prabhu Mehta gave
ballam blow on the neck and shoulder of Sewak Mehta.
Ramakant gave Hansa blow on the head of Sriprasad Mehta
by which he also got injury and Umesh Mehta assaulted by
Lathi to the informant. The motive of the occurrence as
alleged that accused persons claim the land in which radish,
cauliflower and pototato was grown. The witnesses of the
occurrences are Gugli Mehta, Ram Chandra Mehta, Dwarka
Mehta and Ram Prasad Mehta.
4. The Fardbeyan of Rajenda Mehta was recorded
before Shri R. D. Singh, Daroga, Birpur at 4 P.M. on
24.11.1991. On the Fardbeyan , F.I.R. was lodged on 25.
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11. 1991. However, after investigation, the charge sheet
submitted, cognizance was taken and the case was
committed to the court of sessions and after commitment,
the charges were framed under Section 302 of the Indian
Penal Code against Shri Ramjee Mehta and further charges
were framed against five accused persons Ramakant Mehta,
Umesh Mehta, Ramswarup Mehta, Koa Mandal and Trideo
Gupta for offence under Sections 302/149, 307/149,
324/149 and 323/149 of the Indian Penal Code.
5. After submission of the charge sheet the
prosecution adduced eleven witnesses. Where P.W. 1 Ram
Prasad Mehta, P.W. 2 Gugli Mehta, P.W.3 Rameshwar
Mehta, P.W. 4, Sri Prasad Mehta, P.W.5 Jagdish Mehta,
P.W.6 Ram Chandra Mehta, P.W. 7 Mishrilal Mehta, P.W.
8 Mahendra Mehta, P.W.9 Rajendra Mehta, P.W. 10 Dr.
Krishna Chandra Jha, P.W. 11 Dr. M. K. Singh. However,
I.O. of this case has not been examined.
6. The Documentary evidence adduced on behalf of
the prosecution is Ext. 1, Signature of Gugli Mehta on
Fardbeyan, Ext. 2, is the Fardbeyan, Ext. 3 is the original
sale deed executed by P.W. 4, Deep Narain Pd. Gupta in
favour of Rajendra Mehta, Ext. 4 is the rent receipt, Ext. 5 is
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the petition of the informant dated 29. 04. 1992, Ext. 6 is the
injury report of Mishrilal Mehta, Ext. 6/1 is the injury
report of Mahendra Mehta, Ext. 6/2 is the injury report of
Rejendra Mehta, Ext. 6/3 is the injury report of Sewak
Mehta, Ext. 6/4 is the injury report of Mishrilal Mehta, Ext.
6/5 is supplementary injury report of Shri Prasad Mehta,
Ext. 7 is the Postmortem Report, Ext. 8 is the formal F.I.R.,
Ext. 9 is the Fardbeyan of Rajendra Mehta, Ext. 10 is the
certified copy of the judgment of G.R. No. 593/91 and Ext.
11 is the inquest report.
7. The defence has also adduced both oral and
documentary evidence. Oral evidence has been adduced on
the defence, D.W. 1 Budhi Lal Mehta, D.W. 2 Kishundeo
Mehta, D.W.3 Hriday Mehta, D.W. 4 Sitaram Mehta and
D.W.5 Ramdeo Mehta. The defence has also adduced
documentary evidence. The documentary evidence adduced
is Ext. A is the sale deed, Ext. B is the rent receipt, Ext. C is
the certified copy of formal F.I.R. with Fardbeyan of Birpur
P.S. Case No. 97/91, Ext. D is the injury report, Ext. E is the
certified copy of the charge sheet, Ext. F is depositions of
witnesses in G.R. Case No. 593/91, Ext. F/1 is certified
copy of deposition of Kishundeo Mehta, Ext. G is certified
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copy of charge sheet of case bearing G.R. No. 446/91, Ext.
H is certified copy of the judgment of G.R. Case No.
446/91.
8. The defence of the accused persons as apparent
from the trend of the cross examination and suggestion to
prosecution witnesses that witnesses have not seen the
occurrence and have falsely deposed and this case is a
counter blast to the occurrence about looting the house of
Rajendra Mehta for which a counter case has been filed
bearing Birpur P.S. Case No. 97/91.
9. The further case of the defence that P.O. land was
being cultivated by the accused persons as ‘Bataidar’ and
disputed land is in their possession since last 20 to 25 years
prior to the occurrence and the land was a joint property of
Deep Narain and Adhojee. Further that Ramjee Mehta was
also received injury but injury not explained by prosecution
and the defence witness also examined about assault and
injury by the witnesses of this case.
10. Hence after considering the oral and documentary
evidence and taking into consideration the submissions and
defence of the accused persons, the Trial Court convicted
the accused persons and sentenced as mentioned above.
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Two appeals were filed, one by Ramjee Mehta bearing Cr.
Appeal No. 409 of 2004 and other by rest of convict Umesh
Mehta, Ram Swaroop Mehta, Prabhu Mehta and Ramakant
Mehta bearing Cr. Appeal No. 411 of 2004.
11. Learned counsel for the appellants has however
contended that I.O. has not been examined has caused
prejudice as place of occurrence has not established and
contradiction could not be recorded for the attention drawn
to prosecution witnesses. It has further been contended that
the admitted case of prosecution that accused persons were
in possession of the land since nine years prior to the
occurrence as Bataidar of Ayodhi whereas prosecution
claim to have purchased the land from Deep Naryan, son of
Ayodhi but neither the vendor Deep Narayan nor any of the
co-sharer of vendor has come to depose that they
dispossessed the accused Ramjee from the land mere on sale
deed or rent receipt it can not be inferred possession of the
prosecution party.
12. It has further been contended death of Ram
Sevak is not the immediate cause of the injury but the cause
of death is due to mediastenal sepsis the victim was not
properly treated and hence the injury on deceased cannot be
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attributed for murder. It has also been contended that
statement under Section 313 Cr.P.C. of accused is cryptic
and amounts to non-compliance of 313 Cr.P.C. and hence
prosecution has not proved the charges beyond reasonable
doubt.
13. The learned counsel for State however, contend
that the prosecution has proved the case beyond reasonable
doubt.
14. On the respective submission of the parties,
question for consideration whether prosecution has not been
able to proof the charges beyond reasonable doubt to
maintain the conviction and sentence.
15. However, prosecution case as alleged in the
Fardbeyan that on 24.11.1991 at about 2 P.M., Sewak
Mehta, Sri Prasad Mehta, Mishri Lal Mehta, Mahendra
Mehta were working in the field near the house in which
radish, cauliflower and potato was grown At that time
Ramjee Mehta, Prabhu Mehta, Ramakant Mehta, Umesh
Mehta, Ram Swaroop Mehta, Koa Mandal, Indradeo Gupta,
Ramanand Gupta, Jagdish Gupta, Shatrudhan Gupta,
resident of Hriday Nagar and Brahmpura came armed with
spear, Farsa and Fasa and surrounded the prosecution party
9
Ramjee Mehta gave Hasa blow on the abdomen of Sewak
Mehta, Prabu Mehta gave ballam blow on the neck of the
informant and also gave ballam blow on the shoulder.
Chandrakant gave Farsa blow on the head to Shri Prasad
and Umesh gave lathi blow. Ram Sewak Mehta died after 7-
8 days during his treatment in private nursing home.
16. However, out of eleven persons, examined as
prosecution witnesses, P.W. 1, 4, 7, 8 and 9 are from same
family that is descendent of common ancestor. P.W. 3 is
tender, P.W. 5 and 6 are not eye witness. P.W. 10 is the
Doctor who have examined the injured and P.W. 11 is
Doctor who conducted Postmortem examination of the
deceased Ram Sewak Mehta who died after 6-7 days of the
occurrence.
17. Now I proceed to consider evidence of
prosecution, P.W. 9 is informant. He has stated that at the
time of occurrence his father Sewak Mehta, Mahendra
Mehta, Sriprasad Mehta and Mishrilal Mehta were present
in the field of raddish, potato. The appellants came armed
with weapon and surrounded them. Thereafter, Ramjee
Mehta assaulted Ram Sevak (deceased) by ‘Hansa’ on the
abdomen. Prabhu Mehta also assaulted Ram Sevak by
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‘Bhala’. Hence, P.W.9 supported the prosecution case as
alleged in the Fardbeyan. He has further stated that his
father was treated at Birpur then to Purnea and finally at
Private Nursing Home where he died during treatment on
01. 12. 1991 at 8.45 P.M. He has further stated that the
disputed land is at Plot No. 122, Khata No. 132 which
belongs Deep Narain Gupta, son of Ayodhi Gupta which
was purchased by his father on 28. 10. 1991 by registered
sale deed. The said land used to be cultivated by Ramjee
Mehta in BATAI. Ayodhi Gupta has taken back the said
land from Ramjee Mehta. Deep Narain Gupta agreed to sale
the land for consideration of Rs. 5,000/- and handed the
possession of land to prosecution party. The prosecution
have grown potato, raddish and cauliflower. He has further
stated that after purchase of the land he got the land mutated
in his name after execution of the sale deed proved as sale
deed (Ext.3) and rent receipt (Ext.4) However, this witness
has admitted in para 33 of his cross-examination that
accused Ramjee Mehta was in possession of the land since
last eight-nine years till three months prior to the occurrence
and denied the suggestion in para 34 of his deposition that
Ramjee Mehta was in possession of the land since last
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twenty five years and prosecution party was never
possession in the land.
18. However, attention has been drawn of this
witness regarding statement before the Police in this context
of the evidence made before the Police.
19. P.W. 4 in his evidence has stated in para 1 that
at the time of occurrence he was at his house which is
situated north-west to the place of occurrence at the distance
of five to six lagga and after hearing the hulla he went to the
place of occurrence then saw Ramjee Mehta Prabhu Mehta,
Ramakant Mehta and Umesh Mehta armed with variously
weapons were assaulting the Sewak Mehta, Mishrilal
Mehta, Mahendra Mehta and Rajendra Mehta and has stated
that when he tried to save them he was also assaulted by
Ramakant and he got unconscious and supported
prosecution case as mentioned in Fardbeyan. The attention
of this witness drawn to record contradiction in para 22 of
Case Diary regarding occurrences as well as assault.
20. P.W. 7 has further stated in his evidence that at
the time of occurrence he was at his house and on hearing
the hulla he went to the filed of Rajendra Mehta, growing
radish, cauliflower and brinjal. He has further stated that at
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the distance of seven to eight lagga south from the said field
and he saw Sewak, Rajendra,Sriprasad, Mehendra and also
saw the accused persons armed with various weapons and
saw that accused persons were assaulted as specifically
mentioned in Fardbeyan. The attention of this witness has
been drawn in para 13 of his deposition drawn to record
contradiction but I.O. not examined to take contradiction.
21. P.W. 8 has stated in his evidence that wife of
Ramjee Mehta was uprooting the radish from the field
which they have purchased and then he went to protest on
which there was verbal altercation which converted in
physical altercation and thereafter, his brother, Rajendra
Mehta, his father Sewak Mehta, Sriprasad Mehta, Mishrilal
Mehta also came to the field and in the meantime accused
persons also came variously armed and assaulted as
specific in the Fardbeyan and stated that wife of Ramjee
Mehta uprooted 10-12 radish and attention drawn in para 21
and 23 of his deposition.
22. P.W.1 has supported in his evidence as
mentioned in Fardbeyan, but attention has drawn toward
earlier statement before the Police under Section 161
Cr.P.C. for taking contradiction and has stated in para 24
13
and 25 of the deposition that he has not stated before the
Daroga that after occurrence of assault he ran to the place of
occurrence and stated before the Daroga that he only gave
hearsay version. Hence, attention has been drawn towards
contradiction that he has not seen the occurrence, but has
not been examined to record contradiction.
23. P.W. 2, has also supported the prosecution in
his deposition in Court about the occurrence, but attention
has been drawn in para 20 and 21 of his evidence to record
contradiction. He has stated in para 21 that he can not say
who (i.e. which accused) assaulted whom (injured).
However, P.W. 3 has been tendered. Similarly, P.W. 5 has
stated that by the time he reached to the place of occurrence,
the occurrence of assault was over, so not an eye witness.
24. However, P.W. 6 in his evidence has stated
that on hearing hulla, he went to the place of occurrence and
there he saw Dukha Mahato and Ramesh Mahto and also
saw that Sewak Mehta, Sriprasad Mehta and Mahendra
Mehta, Mishrilal Mehta were injured and saw the accused
persons. Hence, this witness has not also eye witness to the
occurrence.
25. Prosecution case in the Fardbeyan that the
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informant (P.W.9) along with Sewak Mehta (deceased)
Sriprasad Mehta (P.W.4), Mishrilal Mehta (P.W.7) and
Mahendra Mehta (P.W.9) were working in the field and
then accused persons came surrounded and assaulted them
by Hansa. P.W. 9 supported the prosecution case. Whereas
P.W.4, 7 and 8 have not supported the prosecution case as
alleged in the Fardbeyan about the genesis of occurrence.
P.W. 4 and 7 have stated that at the time of occurrence they
were at their respective house and on hulla they came to the
place of occurrence and then saw the occurrence and P.W. 8
develop the prosecution story that wife of Ramjee was
uprooting the radish then there was verbal and physical
altercation and then hulla accused persons and witnesses
came is against the prosecution case alleged in the
Fardbeyan as well as deposed by P.W. 9 the informant.
However, the genesis of occurrence that when P.W. 4, 7, 8,9
with deceased working in the field then accused persons
came and surround the prosecution party and assault
whereas P.W. 8 says that wife of Ramjee was uprooting the
radish then there was verbal and physical altercation then
accused and witness came. P.W. 4 and 7 also stated that on
hulla they came to the field, the place of occurrence and
15
hence not supported the genesis of occurrence as alleged in
Fardbeyan.
26. P.W. 9 the informant has stated in his
evidence that the land belong to Deep Narain Gupta, son of
Ayodhi Gupta and the land was purchased by his father on
28. 10. 1991 by a registered sale deed (Ext. 3) got mutated
and has admitted mutation was done and rent was paid and
rent receipt issued. However, P.W. 9 has accepted in his
evidence in para 33 that the said land was used to be
cultivated by Ramjee Mehta in BATAI, though, stated that
Ayodhi has taken back the land from Ramjee Mehta and
Deep Narain Gupta gave in the possession. However,
neither Ayodhi has examined as witness to support or
corroborate the evidence of taking back the land from
Ramjee Mehta nor Deep Narain Gupta has been adduced
evidence to support over possession of the land to the
informant. Moreover, the execution of the sale deed and
rent receipt and even mutation of the land in the name of the
petitioner is not in evidence on the basis of which the
possession can be inferred or established.
27. However, the P.W. 3, 5 and 6 have also not
supported the prosecution case and evidence of P.W. 1, 4, 7
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and 8, though, supported prosecution case but attention of
the witness has been drawn with regard to their statement
before Police as well as in Court, but I.O. has not been
examined to record contradiction and hence cause
prejudiced to the defence both for recording contradiction
and establishing the place of occurrence.
28. However, P.W. 10 is the Doctor who has come
to prove the injury and has stated that on 24. 11. 91 at 4
P.M. examined Mishrilal Mehta and found three injuries on
his person at scalp, shoulder and head. However, all the
injuries are found to be simple in nature. He has also
proved injury on the person, Mahendra Mehta and found (i)
incised wound over left shoulder in 1/1/2″ x ¾” bone deep.
(ii) incised wound over upper portion of left cheek in ½” x
¼” and said to refer to Purnea Hospital for specialized
treatment and opinion regarding nature of injury was
reserved. He also examined Rajendra Mehta and found two
injuries (i) defused swelling over left shoulder, (ii) defused
swelling over the right upper arm and both injuries are
found to be simple in nature. He also examined Shriprasad
Mehta and found three injuries on his person (i) incised
wound over posterior and inferior portion of right upper arm
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in 2.5″x 05″ (ii) incised wound over left side of head,
extending upto mid ion 5″ x ½” bone deep and (iii) incised
wound over left supra scapular region in 1″ X ½”.
However, nature of injury has been reserved and has
referred to Purnea Hospital. He has further stated on 08. 12.
1991 x-ray place of Sriprasad Mehta was shown to him and
x-ray plate examination shown the fracture of frontal bone
and has opined that injury no. ii was grievous in nature.
However, in cross-examination that x-ray plate of Sriprasad
Mehta is not placed before him today and he has not
mentioned the fact as to who had brought the same. He has
further stated he has not prescribed for x-ray of the injured
of Sriprasad. Hence, opinion about grievous injury no. 2 of
Sriprasad without proving the x-ray report and it has neither
been established that x-ray place on which opinion was
given. Hence on the said basis, it can not be said that injury
on the person of Sriprasad was grievous in nature and hence
none of the injury either on Mishrilal or Mahendra or
Rajendra or Sriprasad is not as such either simply or
cumulative effect of all injury on the injured is as such to
infer that they were inflicted with intention to kill and hence
offence under Section 307 of Indian Penal Code is not made
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out.
29. However, P.W.10 has also proved the injury
on the person of Sewak Mehta and referred three injures on
Sewak Mehta (i) incised wound over left groin, in 2″ x 1″
intestine bulged out from the injury, (ii) incised wound over
upper portion of left thigh in 1″ x ½” x ¼” and (iii) incised
wound over left side of neck 1/1/2″ x ½” muscle deep.
Injury no. (i) was shown to be grievous while remaining
injuries, opinion reserved and was referred to Purnea
Hospital. However, except Sewak Mehta, all the injuries
found on the persons of the victim Mishrilal Mehta,
Mahendra Mehta, Rajendra Mehta and Sriprasad Mehta has
been reported to be simple except one of the injury on the
person of Sriprasad shown to be grievous on the basis of x-
ray report which was, though, not advised by this witness
and x-ray plate has also not been proved in evidence and
hence opinion of Doctor that said injury was grievous is
without a basis and hence not acceptable. Hence, injury on
the person of accused persons except Sewak Mehta can not
be said to be inflicted with intention to kill as the injuries
pointed out are all simple and superficial and most of them
are not on vital part.
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30. So far injury on the person of Sewak Mehta
one of the injury, injury no. (i) is said to be grievous.
However, injured Sewak Mehta was reported to send
Purnea Hospital and finally he was treated in Private
Nursing home and died after six-seven days during
treatment. Though, P.W. 10, Doctor has stated in his
deposition at para 13 of examination report that injured
Sewak Mehta was conscious when he was sent to Purnea
Hospital and during his treatment at Nandan Nursing Home
and after undergoing treatment of six-seven days he died.
P.W. 11 is the Doctor has conducted autopsy on the person
of Sewak Mehta and found injury (i) on neck of 2″ x 2″
muscle deep, (ii) surgical emphysema in the neck, (iii) cut
injury on left iliac fossa= 3″ x 2″ x muscle deep, (iv)
omentum plus loop of intestine outside the wound and (v)
right para medium operative wound 4″ stitched wound.
However, Doctor has further opined that (i) left lung
collapses, right lung contain full of pus, (ii) Oesophagus-
therasic part ruptured size = 2″ X 1″ through and through
(iii) Mediastinum- contains pus-incised wound on left sixde
chest with drainage to in it, (iv) heart- both chambers full,
but pale, (v)liver pale, congested, (vi) spleen, kidney-
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congested, (vii) scalp – abrasion- 3″ x 1″ meninges not torn,
(viii) abdomen- multiple stitch on small intestine (ix)
bladder full, stomach empty and cause of death in his
opinion is due to mediastenal sepsis leading to shock and
haemorrhage. Though, he has opined that all the injuries
taken together are sufficient to cause death, but the neck
injury was individually sufficient to cause death. However,
the deceased survived for six-seven days and the immediate
cause of death was mediastenal sepsis. However, the
Doctor in his further cross-examination in para 16, has
stated that he has not mentioned the age of the injuries and
what medicine were given to the injured. However, he has
opined in para 16 of his deposition that injured could have
been survived if he had been given specialized treatment for
which he had no equipment. However, this Doctor was
associated with Hospital also runs a Nursing Home and as
per his evidence since there was strike in the hospital and so
he admitted the injured in his Nursing Home on request and
has opined that if the mediaternal sepsis was properly
treated deceased could have been survived, but he had no
such specialized equipment. He has further stated that
injury no. (i) mentioned in Postmortem report is muscle
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deep and sepsis can be caused by simple injury and if such
sepsis not properly treated it can be fatal.
31. Hence, in view of evidence of the doctor that
deceased could have been survived, but in view of the fact
specialized treatment was not given then he died due to
mediasternal sepsis.
32. The prosecution during his evidence has
admitted in para 33 of P.W.9 that accused persons were
cultivating the land as Bataidar of co-sharer Ayodhi. The
defence case also as per suggestion in para 33 of the
evidence of P.W. 9 that defence is in cultivating possession
of the land since last 20-25 years. However, the prosecution
made out a case that Ayodhi got the possession of land
from accused Ramjee Mehta. Deep Narain Gupta, son of
Ayodhi sold the land by a registered deed of Sale on
24.10.1991 to prosecution party and gave the possession
three months before sale deed, but neither Adho nor Deep
Narain came to prove that they actually took the possession
of the land from Ramjee and handed over the land to the
prosecution. However, the prosecution have proved the sale
deed (Ext.3) the mutation order and rent receipt (Ext.4) but
these documents are not the evidence of possession and
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reliance placed on 2009 (7) SCC 614 is well established
principle in facts and circumstance the sale by one co-
sharer regarding undivided share in joint family property
where purchaser has only acquire the right to partition and
not possession and hence the possession of the prosecution
can not be inferred on sale deed and rent receipt whereas
the possession of Ramjee coming in possession can well be
inferred and probable. Moreover, the case of prosecution
that the informant went in the field with deceased as well as
P.W. 4, 7 and 8, then accused persons came surrounded, but
P.W. 8 in his evidence given a go bye to prosecution case in
Fardbeyan and develop a case that wife of Ramjee uprooted
the radish lead to verbal and physical altercation lead to the
occurrence and P.W. 4 and 7 also deposed that on hulla they
came to the place of occurrence given a complete go bye to
prosecution case that P.W. 4, 7, 8, 9 along with deceased
had gone in the field to work in the filed then accused
persons came surrounded and assaulted the prosecution.
33. During statement under Section 313 Cr.P.C.
only two questions have been asked from each of the
accused persons. First question is that they have killed
Sewak Mehta and second question is that they have
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intention to kill and assaulted Mahendra Mehta and
Rajendra Mehta but no question has been asked about their
being member of unlawful assembly and they shared
common object to murder or attempt to murder the deceased
Ram Sewak and others. Hence, no opportunity was given to
the accused persons to explain the circumstance regarding
their being member of unlawful assembly with a common
object to kill Sewak Mehta or to attempt to kill other in
pursuance of common object or common intention of said
unlawful assembly. Though, this circumstance was not
brought to the notice to explain the circumstance conviction
under Section 302/149 is not sustainable. Hence it appears
that the compliance of 313 has not been properly done and
mere formalities has been observed.
34. Hence taking into consideration that the
genesis of occurrence that occurrence took place while
prosecution party were working in the field then accused
persons came surrounded and assault, but during trial the
prosecution develop the case that they purchase the land and
occurrence took place for uprooting the radish by wife of
Ramjee causing verbal and physical altercation. Thereafter,
the accused persons and witnesses came. Though, P.W. 9
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supported the prosecution case in Fardbeyan that P.W. 4,
7, and 8 while working in the field then accused surrounded
and assault. However, P.W.8 came with story of uprooting
the radish by wife of accused Ramjee which led to cause
verbal and physical altercation and on hulla P.W. 4 and 7
came. P.W. 4 and 7 has also deposed that they came on
hulla. The genesis of the occurrence has changed. The
prosecution admitted that Ramjee was in possession of land
since 8-9 years prior to occurrence as Bataidar of the co-
sharer just few days prior to occurrence claiming that the
co-sharer of his vendor dispossessed Ramjee and gave him
the possession, but neither the co-sharer or vendor of
prosecution of the said land came to depose about
dispossession of Ramjee nor about possession to
prosecution party and it is well settle that sale deed and rent
receipt is not an act of possession. Hence the possession of
prosecution over land under the facts and circumstances
becomes doubtful. Though P.W. 1, 2, 4, 7 and 8 have come
to support the prosecution case about the occurrence but the
attention of the witness has been drawn with regard to their
statement in court as well as before Police but I.O. has not
been examined has caused prejudice to prosecution to
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record contradiction and establish the place of occurrence.
Moreover, the medical evidence about the injury on person
of prosecution party except Ram Sewak are simple and none
of the injuries either single or cumulative effect of which
can be said to have been inflicted with intention to kill. The
immediate cause of death of deceased Ram Sewak is sepsis
as the specialized treatment could not be given. Hence,
injury on deceased by accused is not the immediate cause of
death. The statement recorded under Section 313 Cr.P.C. is
mere formalities. P.W. 3 and 6 not supported the
prosecution and no independent witness came.
35.Hence under the facts and circumstances,
the accused persons are entitled for benefit of doubt as the
prosecution party has not been able to prove the charges
beyond all the reasonable doubt and hence the order of
conviction and sentence is set aside. Both appeals are
allowed. The appellants are acquitted. Appellant, Ramjee
Mehta (in Cr. Appeal No. 409 of 2004) in jail is ordered to
be released forthwith if not required in any other case. The
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other appellants (in Cr. Appeal No. 411 of 2004) are
discharged from the liabilities of their respective bail bonds.
(Gopal Prasad, J.)
Shyam Kishore Sharma, J.
I agree.
(Shyam Kishore Sharma,J.)
Patna High Court,
The …20th May, 2011,
NAFR/m.p.
