JUDGMENT
S. Haider Shaukat Abidi, J.
1. Appellant Ziauddin Mian in Criminal Appeal No. 103 of 1986 has come to this Court against his conviction under Sections 302 and 379 of the Indian Penal Code (for short IPC) and under Section 3 of the Explosive Substances Act and sentence of life imprisonment, 2 years and 7 years awarded to him under the respective counts. Appellant Talebar Mian in Criminal Appeal No. 80 of 1986 has challenged his conviction under Sections 302/34 and 307 and also under Sections 4 and 3/6 Explosives Act and sentence of life imprisonment 2 years, 5 years and 5 years awarded to him under the respective counts. Appellants Anandi Gareri, Dil Mohammad, Jokhan Gareri, Banarsi Gareri, Gauhar Mian, Siddique Mian, Kamrul Mian alias Kamaruddin Mian, Mahadeo Gareri and Ram Gareri have filed the Criminal Appeal No. 102 of 1986 against their conviction under Section 379, IPC and sentence of 2 years rigorous imprisonment awarded to them. Appellant Ram Gareri has further been convicted under Section 324, IPC and sentenced to 2 years rigorous imprisonment. Accused Samsul Mian, Asso Mian and Etwari Mian have already been acquitted by the learned Sessions Judge.
2. The case of the prosecution, as appears from the fard-beyan (Ext. 9) given by Chuto Singh (P.W. 9) on 18-3-1975 at 3.5 P.M. is that the occurrence took place in a field bearing Khesara No 4275 of khata No. 455 in village Gamarhiya. Police Station Khaira District Munger (hear the house of appellant Ram Gareri). The informant has said that about nine days ago, he, Moti Singh, Nageshwar Mishra (P. W. 3) and Haider Mian (P.W. 2) had purchased 0.25 acres out of total area 13.2 acre of plot No. 4275 pertaining to khasra No. 455 by a sale-deed for Rs. 2000/- from Prabhu Chamar, Dhano Chamar and Bano Chamar residents of village Gamarhiya then residing in village Singria Police Station Lakhisarai. In that plot wheat crop was standing in a portion and the rest was vacant. The wheat crop had been sown by Haider Mian is bataidar. On the day of occurrence (18-3-75) Haidar Mian came and told the informant that the accused persons of village Gamarhiya and Jito Gareri at the bahest of Asso Mian (acquitted accused) were cutting the crop. Thereupon the informant along with bis son Nawal Kishore Singh (deceased), Shailja Prasad Singh (P.W. 1) and Haidar Mian (P.W. 2) went to the field and on reching the spot they found the accused parsons cutting the wheat which they were asked not to do. Thereupon appellant Ram Gareri said “Maro”. Then appellant Talebar Gareri picked up a jhola from the wheat field and appellant Ziauddin Mian threw the bomb on the informant. The informant party ran towards south Whereafter the second bomb was thrown by Ziauddin which hit Nawal Kishore Singh (son of the informant) in the back and exploded causing injury to him. He fell down in the Arhar field of Bodu Chamar and started crying and became restless. The informant rushed to save his son. Then accused Ram Gareri chased the informant with saif and assaulted him on his head with the said saif in the Arhar field of Juval Chamar. The informant raised his hands on his head and sat down, In the meantime, Jokhan Gareri, Banarsi Gareri, Mahadeo Gareri, Anandi Gareri, and Gauhar Mian began to assault him with lathis on his hands, legs and back. On account of the assaults the informant closed his eyes for sometime and when he regained senses, he saw accused Samsul Mian, Siddique Mian, Jokhan Gareri and Ram Gareri lifting him and Etwari Mian, Dilmohamed Mian, Gauhar Mian and Banarsi Gareri lifting and carrying away Nawal Kishore Singh injured son towards the village Gamarhiya. This highhandedness was protested by the informant. But Asso Mian asked the accused to hurry up as a case of dacoity at the house of Ram Gareri was to be filed against the informant party. The informant and his son were being carried away side by side. The informant was brought to the east of the Ram Gareri’s house and kept there and his son was also kept near eastern door of Ram Gareri. Then all the accused persons entered into the house of Ram Gareri. The informant did not know as to what happened inside the house. After sometime Asso Mian raised alarm that Nawal Kishore Singh was dead. The informant began to weep on hearing about the death of his son. Thereafter the accused ran away. This occurrence was seen by the prosecution witnesses who had accompanied the informant and his son while being taken by the accused persons. On the basis of this fard-beyan recorded by Ramlakhan Prasad Srivastava, Sub-Inspector of Police (P.W. 15) since retired, a first information report was drawn on the same day i.e. 18-3-1975 at 11-30 P.M. at Police Station Khaira and investigation was started. The dead body was sent for postmortem examination by (P.W. 15). After completion of the investigation charge-sheet was submitted.
3. The accused in defence denied the prosecution case and alleged that they have been falsely implicated in this case. They said that no occurrence had taken place as alleged by the prosecution. A counter first information report had also been lodged on the same day at 11.00 A.M. by Ritu Gareri brother of accused Ram Gareri against Chuto Singh (informant) and his brother Moti Singh, Nawal Kishore Singh (deceased), Sobrati Mian, Haidar Mian (P.W. 2), Nageshwar Mishra (P.W. 3), alleging that the field in question belonged to Ram Gareri and he had actually sown wheat crop and at the time of occurrence he was harvesting the wheat crop along with Rito Gareri and the labourers and in the meantime Chuto Singh (informant) armed with bhala, Nawal Kishore Singh (deceased) armed with saif, Haidar Mian and Jumrati armed with lathis and Nageshwar Mishra came with bhala. Nageshwar Mishra exploded a bomb which fell in the field of Bhodu Chamar and Nawal Kishore Singh (deceased) was hit by the explosion. They brought Nawal Kishore Singh at the house of Ram Gareri whereupon Chuto Singh had filed a false case against some accused persons. Further defence case of the accused was that Chuto Singh and Nawal Kishore Singh were not assaulted by the accused party. In support of their case the accused persons examined seven witnesses. Sri Bijoy Kishore Singh, Advocate proved an affidavit (Ext. C) of Haider Mian that he had not seen the occurrence. Abdul Raquib (D.W. 2) proved the sale deed (Exts. E and E/1) in respect of the land in dispute in favour of Sukar Gareri father of Ram Gareri and Lal Gareri (deceased). D.W. 3 Banwari Lal and D.W. 4 Dilip Prasad proved receipts. Anandi Gareri one of the appellants appeared as D.W. 6 and deposed about the defence cases. D.W. 7 Krishna Prasad Sinha a lawyer’s clerk had proved the complaint filed by Samsul Mian. Learned Counsel for the appellants has also informed us that a case was launched on the basis of a counter information against the appellants under Sections 144 and 379, IPC which has ended in acquittal,
4. The prosecution in support of its case examined 15 witnesses. Sailja Singh, Haidar Mian, Nageshwar Mishra and Arjun Pandit (P.Ws. 1, 2, 3 and 7) have deposed as eye witnesses of the occurrence. P.W. 4 Birendra Prasad has proved sale-deed (Ext. 1). P.W. 5 Mahabir Paswan is the seizure list witness in respect of the blood-stained earth taken from the door of Ram Gareri and also from Arhar field of Bodhu Chamar and also from Arhar field of Jugal Chamar P.W. 5 is Nunudhan Jha witness of the inquest report (Ext. 3) of Nawal Kishore Singh. P.W 8 Ram Roop Singh has been tendered. P.W. 9 is Chuto Singh informant himself. P.W. 10 is Gopal Krishna who has deposed about the sanction for prosecution under the Explosive Substance Act, P.W. 11 Dr. Dhan Raj Roy had conducted the postmortem examination on 1-3-1975 at 10 A. M. and submitted postmortem report (Ext. 7). P.W. 12 Ram Bahadur Prasad Sub-Inspector of Police has proved the fard-beyan, first information report and the charge-sheet. P.W. 13 Anku Singh is a witness of the seizure list. P.W. 14 Shailendra Kumar Das a compounder has proved the injury report of informant (P.W. 9) and P.W. 15 Ram Lakhan Prasad Srivastava is investigating officer.
5. However, the trial Court after considering the entire material on the record and convicted and sentenced the appellants as said above.
6. Learned Counsel for the appellants has urged that the order of conviction is bad. Further, the informant had no right to the land and that the accused were in possession of the land which was interfered by the informant party and so this occurrence had taken place. Rather the accused were attacked and the victim died on account of the explosion by a member of the informant party and so they had not the right of self-defence. In this case death of Nawal Kishore Singh is not disputed and has been well proved by the evidence lead by the prosecution consisting of the evidence of Chuto Singh (informant) and father of the victim as well as other eye-witnesses alongwith the evidence of Dr. Dhanraj Roy who had conducted postmortem. Even the place of occurrence and time of occurrence are the same and the same has not been disputed because the version of the accused also for the occurrence, as said by the prosecution, is the same that the victim died by the explosion of the bomb by their own party.
7. To appreciate the contentions the evidence led by the parties will have to be scrutinised. The case of the prosecution as appears by the statement of the informant, is that he, Moti Singh, Nageshwar Mishra (P.W. 3) and Haider Mian (P.W. 2) had purchased the plot having an area’ of 2.13 acres by a sale-deed for Rs. 2000/- from Prabhu Chamar, Dhanu Chamar, Babu Chamar all resident of village Gamarhiya then residing at Tigri P.S. Lakhisarai. At the relevant time in a portion wheat cropwas standing and partly the land was vacant and the wheat crops was shown by Haider Mian as bataidar. On the day of occurrence when the informant and others got information that the appellants and one Ritu Gareri were cutting the wheat, the informant and his son Nawal Kishore Singh (deceased) along with P.Ws. 1 and 2 went to the place of occurrence and in the meantime P.W. 3 also came and asked the accused persons as to why they were cutting the wheat whereupon Ram Gareri said ‘maro’. Then Talebar Gareri picked up a jhola and then Ziauddin threw a bomb at the informant. The bomb exploded after falling, but the informant party ran and Ziauddin then threw another bomb which hit Nawal Kishore Singh in the back after explosion and injured him. He fell down in the Arhar field of Bhodu Chamar. Then Ram Gareri chased the informant with the saif and assaulted him on his head in the field of Jugal Chamar. When he sat down then Jokhu Gareri, Rati Gareri, Bauarsi Gareri, Mahadeo Gareri, Anandi Gareri and Gauhar Mian began to assault him by Lathis injuring the informant on his feet and back. He closed his eyes and became unconcious and after getting conciousness he found that Samsul Mian, Sidiq Mian, Jokhan Gareri and Ram Gareri had caught hold up his legs and hands by hanging him up. His son Nawal Kishore Singh was also being taken by Etwari Mian, Dilmohamed, Gauhar Mian and Banarsi to village Gamarhiya and on enquiry by the informant from the accused as to what they were doing, they did not give any reply. Then Asso Mian told the accused persons to take these two persons hurriedly to the door of Ram Gareri to file a case of dacoity. They took them to the house of Ram Gareri. Nawal Kishore died. Thereafter the accused person ran away, and the victim was taken to the hospital. This prosecution story has been supported by the informant in Court. He has been subjected to lengthy cross-examination. Other witnesses have also supported this case. So the prosecution has been able to establish the case against these accused persons.
8. The medical evidence consisted of Dr. Dhan Raj Roy who had conducted the postmortem examination on the body of the victim Nawal Kishore on 19-3-1975 at 10 A.M. and had submitted his report which mentions the injuries caused to the victim by explosion of bomb There were lacerated injuries on the back of the right side of midline of the back “6×4”. Margin on the wound was chered and burnt. The depth of the wound was upto the kidney. Even the liver, kidney and right lungs were lacerated. Lumber vertebra Nos. 2 and 3 were fractured. The right side lower 11th and 12th ribs were fractured. The doctor has given opinion that the injuries were caused by some explosive substance like bomb and they were possible if hit on the back while running away and the cause of death was shock and haemorrhage caused by the aforesaid injuries. The appellants in their cross-examination have tried to take out from the Doctor that this explosion is possible if a bomb is exploded just by the side of a man. This cross-examination was for the reason that the case of the defence was that Nageshwar Mishra at the side of the informant had exploded bomb which had hit the victim. But inspite of that opinion the doctor has given out in clear words that the injuries on the dead body of the victim could be caused if the bomb was hit on his back while he was running away.
9. The other medical evidence in respect of the injuries of the informant Chuto Singh is the injury report proved by Shailendra Kumar Das, compounder (P.W. 14) He has said that he was posted in the hospital since 1968. In the year 1975 Dr. D.P. Ambastha was posted in the hospital and so his writings and signatures he recognised. He said that the injury report was in the handwriting and under the signature of Dr. Ambastha and the doctor was in England. He has denied the suggestion that Dr. Ambastha was in Bihar and not in England and that the injury report was not in his handwriting and under his signature. This injury report also bears out the same injuries as said by the informant but then P. W. 15 the investigating officer of this case has proved the injury report (Ext 11) prepared by him after examining the person of Chuto Singh. Thus the prosecution evidence has been able to establish the manner of the occurrence.
10. Learned Counsel for the appellants has urged that the place of occurrence is the same but the appellants had got right over the land which they ware exercising and that the prosecution party has got no right whatsoever over the land in question. Learned Counsel has referred to the sale-deeds (Exts. 1 and receipts 2 and 2/1) produced by the prosecution as well as the sale-deeds (Exts. E and E/1) and the receipts (Exts D to D/19) produced by the defeace. He also referred to the evidence of the P. Ws 1, 2, 3 and 9.
11. Looking to Ext. 1 it appears that it is a sale-deed executed by Dhanu Chamar, Bano Chamar and Prabhu Chamar in favour of the wife of Chotu Singh, Moti Singh, Haidar Mian and Nageshwar Mishra in respect of 25 decimals of land part of plot No. 4275. The sale-deed mentions that the purchaser after coming in to possession from the date of the sale-deed may use the same and get their names entered in the revenue papers. Learned Counsel for the petitioner has urged that this sale-deed does not mention anything about title or possession of the vendors or that Haidar Mian was a bataidar or that the standing crop was there. The case of the prosecution is that this land had been purchased by the informant and others including Haider Mian bataidar who was in possession, and that is why the sale clause in the sale-deed was that the purchaser should remain in possession may use the land and get their names entered. P.W. 1 Sailja Prasad has said that Haidar Mian had sown the wheat crop in the field. P.W. 2 Haider Mian himself said that he was bataidar for the last nine years and that he had sown the crops. P.W. 3 Nageshwar Mishra had said that Haidar Mian had sown the crop in the field as bataidar and thereafter he and others including Haider Mian had purchased the land in dispute. P.W. 9 Chut(sic) Singh had said that he had 29 decimals of land in plot No. 4275 and that particular area is known as oribad and that this land had been purchased from Dhano, Bano and Prabhu Chamar and Haidar Mian was bataidar. P.W. 6 Nunudhan Jha had said that Chuto Singh had challenged the accused Rita Gareri as to why he was forcibly harvesting the wheat crop. The investigating officer (P.W. 15) has also found the field in dispute at a distance of 2 furlongs north-east of village Gamarhiya and the wheat crop was standing So all these witnesses have said about purchase of the land, possession of the informant-party, possession of Haidar Mian as bataidar and the wheat crop standing thereon. Exts. 2 and 2/1 are the rent receipts in respect of the plot in dispute, but they are of the period after the occurrence and during the pendency of the case. Exts. E and E/1 the documents filed by the accused-appellants do not mention about plot No, 4275 of which a portion had been purchased by the informant and others. Even the Exts. D to D/19 do not mention about the plot No. 4275. The common case of the party is that the dispute relates to the plot No. 4275 khata No. 459 whose total area is 13.2 acres and the disputed portion is 2.9 acres. From the documents filed by the accused it is not clear that they relate to the very plot. The Court at the time of considering the plea of self-defence is not concerned with the right and title to possession but the actual possession of the party concerned, and, therefore, the Court is to consider the question of actual possession at the time of occurrence.
12. Here in this case the accused had examined some defence witnesses. D.W. 1 is Bijoy Kishore Singh, Advocate, who has proved the affidavit (Ext. C) which is said to have been filed by Haider Mian that he had not seen the occurrence. This affidavit has not been shown to Haider Mian when he was examined who had been the best person to deny or accept the same, and the evidence of Haider Mian was clear and categorical, that he was in possession as bataidar and he had seen the occurrence. D.W. 2 Abdul Rafique had proved the sale-deeds Exts. E and E/1. But as seen above, all these sale-deeds do not mention about land in dispute. D.Ws. 3, 4 and 5 have proved the rent receipts. These rent receipts are also found to be irrelevant, not being in respect of the plot in dispute. Anandi Gareri has himself appeased as D.W. 6 and he has tried to prove the case of defence that a counter-first information report had been lodged under Sections 144 and 379, IPC on 18-3-1975 at 11 A.M. at Khaira police-station another police-station by Rito Gareri brother of Ram Gareri against Chuto Singh (P.W. 9), his brother Moti Singh and one Nawal Kishore (died), Haidar Mian, Subrati Mian not examined as P.W. and Nagendra Mishra (P.W. 3). Learned Counsel for the appellants during the course of argument said that in the said case trial was held and the accused in that case were acquitted. P.W. 7 Krishna Prasad Sinha, lawyer’s clerk tried to prove the complaint (Ext. F) filed by Samshul Mian which has got no bearing with this case. Thus the defence has not been able to show that they have got any right to the plot in dispute nor they could prove their possession. By establishing the right to possession, does not mean that they should prove their case in same way as the prosecution has to prove. They are to show preponderance of evidence in their favour. From what has been said by the accused in their defence by examining the defence witnesses as well as the oral evidence and further from the material on the record brought by he prosecution, nothing has come out to give a right of self-defence to ‘he accused. Thus the accused has got no right of self defence. Further, he victim party was unarmed. Nobody from the side of the accused had been injured or hurt on account of which the accused could have got a right, if at all, to cause any injury or even death if the circumstances warranted, Thus the accused has got no right of self defence at all.
13. After considering the entire material on the record as well as the contentions advanced by the learned Counsel for the parties, I am of the opinion that the prosecution has been able to establish its case beyond reasonable doubt against the appellants and the appellants have not been able to establish any case to entitle them for interference against their conviction recorded by the trial Court. Hence these appeals are dismissed.
14. In the result, Criminal Appeal No. 103/86 filed by appellant Ziauddin Mian and Criminal Appeal 80/86 of Talebar Gareri are dismissed. Since Gareri is on bail he should be taken into custody to serve out the sentence. So far Criminal Appeal No. 102/86 is concerned, appellants-Anandi Gareri, Dil Mohammad, Jokhan Gareri, Banarsi Gareri, Gauhar Mian, Sidique Mian, Kamarul Mian alias Kamaruddin, Mahadeo Gareri and Ram Gareri have been convicted under Section 379, IPC and awarded 2 years’ rigorous imprisonment and appellant Ram Gareri has further been convicted under Section 324, IPC and awarded 2 years* rigorous imprisonment. These appellants have been facing this ordeal since the year 1975 and have also suffered some part of the sentences. So the interest of justice will be served by maintaining the convictions of these appellants only and they should not be sent back to jail, as the sentences served by them may be deemed sufficient. But these appellants will have to pay a fine of Rs 500/- each within a period of four months from today and in case of failure they will have to serve out the sentences of 2 years as awarded to them by the trial Court. In case the fine is realised, the same will be paid as compensation for the injuries suffered by the informant Chuto Singh. Since these appellants are on bail, their bail-bonds will remain in existence till the realisation of the fines. In case they will pay the fines within four months, they will be discharged from the liabilities of the bail-bonds otherwise they will be taken into custody to serve out their sentences awarded by the trial Court.
S. Samshul Hasan, J.
15. I agree.