{"id":164675,"date":"2010-02-24T00:00:00","date_gmt":"2010-02-23T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/brahmdeo-rai-vs-the-state-of-bihar-on-24-february-2010"},"modified":"2015-05-16T16:06:45","modified_gmt":"2015-05-16T10:36:45","slug":"brahmdeo-rai-vs-the-state-of-bihar-on-24-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/brahmdeo-rai-vs-the-state-of-bihar-on-24-february-2010","title":{"rendered":"Brahmdeo Rai vs The State Of Bihar on 24 February, 2010"},"content":{"rendered":"
Patna High Court<\/div>\n
Brahmdeo Rai vs The State Of Bihar on 24 February, 2010<\/div>\n
Author: Dharnidhar Jha<\/div>\n
                                 CRIMINAL APPEAL No.216 OF 1988\n\n                            Against the judgment of conviction and order of sentence dated\n                            18.04.1988 passed by Sri Budhdeo Narain Singh, 8th Additional\n                            Sessions Judge, Bhojpur, Arrah in S.T. No.328 of 1980.\n\n                            1.   Mahendra Rai\n                            2.   Kamla Rai\n                            3.   Srinath Rai, all sons of Ram Swaroop Rai.\n                            4.   Kapil Muni Rai son of Lalji Rai.\n                            5.   Hira Rai,\n                            6.   Ram Pravesh Rai, both sons of Ram Narayan Rai.\n                            7.   Kameshwar Rai son of Bhuneshwar Rai.\n                            8.   Dhanraj Ahir son of Jhapsi Ahir.\n                            9.   Ram Nath Ahir @ Rajnath Ahir, son of Mulki Ahir\n\n                        All residents of village Tetrahar, P.S. Navanagar, District\n                        Bhojpur.\n                                                          --------------Appellants\n                                                Versus\n                        THE STATE OF BIHAR              -------         Respondent<\/pre>\n
                                                               With
\n                                              CR. APP (DB) No.281 of 1988
\n                             Radha Mohan Rai son of Ram Sakal Rai, resident of village
\n                            Tetrahat, Police Station- Nawanagar, District Bhojpur ————-\n<\/p>\n
                            —Appellant
\n                                                      Versus
\n                             THE STATE OF BIHAR- —————Respondent
\n                                                       With
\n                                          CR. APP (DB) No.308 of 1988
\n                            Brahmadeo Rai son of Ram Swaroop Rai, resident of village
\n                            Tetrahat P.S. Nawanagar, District Bhojpur.\n<\/p>\n
                                                               ———-Appellant
\n                                                      Versus
\n                             THE STATE OF BIHAR—————Respondent
\n                                 For the appellants:- Sri Anil Kumar Singh Amicus Curiae)
\n                                                      &
\n                                  Sri Neeraj Kumar-Amicus Curiae
\n                                             PRESENT
\n                                 THE HON’BLE SRI JUSTICE DHARNIDHAR JHA
\n                          THE HON’BLE SRI JUSTICE BIRENDRA PRASAD VERMA<\/p>\n
    Dharnidhar Jha &                   There are a host of lawyers whose names appear in the cause
\nBirendra Prasad Verma, JJ
\n                             list as Advocates holding powers on behalf of the appellants of the three
\n                           -2-<\/span><\/p>\n
appeals. In spite of sending words no one appears. When we resumed<\/p>\n
out   seat        today   Sri   Manish   Kumar,   Advocate,   appeared   and<\/p>\n
communicated to us that Shri Pushkar Narain Shahi, whose name also<\/p>\n
appears in the array of the advocates for the appellants, does not hold<\/p>\n
brief on behalf of any of the appellants. We requested Sri Kumar to<\/p>\n
inform Sri Shahi to personally inform us and, accordingly, Sri Shahi<\/p>\n
appeared before us and submitted that at the time of being initiated into<\/p>\n
law- practice as a member of one of the Bar Associations of the Court,<\/p>\n
Senior counsel late S.B.N.Singh could have obtained his signature on<\/p>\n
the power. The fact was that Shri Shahi was neither the custodian of the<\/p>\n
brief nor has any knowledge about it. Under such circumstances we are<\/p>\n
forced to look for an amicus curiae. Sri Anil Kumar Singh was present<\/p>\n
in Court and he offered to assist us and, accordingly, we appoint him as<\/p>\n
an amicus curiae, on behalf of appellants in Cr. Appeal No. 216 of 1988<\/p>\n
and Sri Niraj Kumar, Advocate, in remaining two appeals.<\/p>\n
             2.     We may appoint amicus curiae for the appellants but the<\/p>\n
problem remains before us is that who should be appointed as an<\/p>\n
amicus curiae for the State as well, as none of its counsel is present in<\/p>\n
Court to render assistance to us. We believe that hearing the parties,<\/p>\n
especially the State would be a prerogative of its counsel, if he appears,<\/p>\n
as it appears from section 386 of the Code of Criminal Procedure. We,<\/p>\n
as such, have proceeded to hear and dispose of the batch of three<\/p>\n
criminal appeals.\n<\/p>\n
             3.    The case relates to disputed question of possession over a<\/p>\n
particular piece of land between the two parties. The informant claims
\n                      -3-<\/span><\/p>\n
to have purchased the land from one Sukhbilasho Kuer. The total area<\/p>\n
purchased by him, as may appear from the evidence of P.W.3, Garjan<\/p>\n
Singh, was about 6 bighas and he claimed to be coming in possession<\/p>\n
over the same.\n<\/p>\n
           4.    It was alleged by him that he, along with his nephew<\/p>\n
Jagdish Singh ( the deceased) and his son Lalbahadur Singh, went to<\/p>\n
irrigate the field. He was resisted by the accused and at the<\/p>\n
remonstration of the appellant, Kapilmuni Rai, appellant Radhamohan<\/p>\n
Rai fired a shot at Jagdish Singh which hit him in his chest and thigh,<\/p>\n
as a result of which he fell down and later died in Patna. As regards the<\/p>\n
informant, he alleged that he was assaulted by appellants Mahendra Rai<\/p>\n
with farsa, Brahmdeo Rai with bhala and Srinath Rai with lathi.<\/p>\n
           5. The informant also fell down. However, P.W.2, Lalbahadur<\/p>\n
Singh, fled away from there to save himself. The informant stated in his<\/p>\n
fardbeyan, Ext-3, that Sudama Singh (not examined) Chandrama Singh,<\/p>\n
(P.W.1) and some others, who were also named in the F.I.R. and who<\/p>\n
were examined by the prosecution, had seen the occurrence.<\/p>\n
           6.    On the basis of Exhibit-3, the F.I.R. was drawn up and<\/p>\n
the investigation was proceeded with which ultimately ended in sending<\/p>\n
up of the appellants for trial.\n<\/p>\n
           7. The defence of the appellants was of false implication on<\/p>\n
account of the land dispute and, further, that no occurrence in the<\/p>\n
manner as alleged had taken place at the place of occurrence.<\/p>\n
           8.    The prosecution examined five witnesses in support of<\/p>\n
charges which were initially under sections 147 and 324 against all the
\n                    -4-<\/span><\/p>\n
accused persons and under section 148 and 302\/149 I.P.C. against<\/p>\n
Radha Mohan Rai and others. Out of the five witnesses, Murat Rai, an<\/p>\n
Advocate’s Clerk, was examined to give evidence of formal character and<\/p>\n
he proved the writing and signatures of Investigating Officer of the case-<\/p>\n
diary, (Ext.1), F.I.R. (Ext.2), Fardbeyan (Ext. 3) and the inquest report<\/p>\n
(Ext. 4). Likewise, P.W.5, Surendra Singh, was also a witness of formal<\/p>\n
character who gave evidence on being acquainted with the writings of<\/p>\n
the doctor who held postmortem examination and wrote down the<\/p>\n
report, Ext.5. Thus, the Investigating Officer of the case and the doctor<\/p>\n
were also not examined.\n<\/p>\n
          9.    The defence produced documents in support of their<\/p>\n
defence and claimed the property in dispute and they also examined its<\/p>\n
solitary witness, namely, D.W. 1 Pashupati Nath Upadhaya who brought<\/p>\n
on record an affidavit sworn by one Ram Pravesh Rai. In addition to<\/p>\n
bringing on record the copies of the F.I.R. and the charge-sheet of a<\/p>\n
criminal case, the defence produced copies of orders passed by the<\/p>\n
Anchal Adhikari and the D.C.L.R. in mutation case and appeal, besides<\/p>\n
producing the khatian in respect of the disputed land.<\/p>\n
          10.    After considering the evidence of the parties the learned<\/p>\n
court below held the appellants guilty of committing the offence under<\/p>\n
sections 302 read with section 149 of the Penal Code and directed all<\/p>\n
the appellants except Radhamohan Rai to suffer rigorous imprisonment<\/p>\n
for life. Appellant Radha Mohan Rai was convicted under sections 148<\/p>\n
and 302 of the Penal Code and was ordered to suffer rigorous<\/p>\n
imprisonment for three years and for life respectively under the above
\n                     -5-<\/span><\/p>\n
sections of the penal Code. All the remaining appellants except<\/p>\n
Mahendra Rai were convicted also for committing an offence under<\/p>\n
section 147 of the Penal Code and were directed to suffer R.I. for one<\/p>\n
year. Appellant, Mahendra Rai was ordered to suffer R.I. for two years<\/p>\n
for offences under section 148 of the Penal Code.<\/p>\n
          11. Learned Amicus curiae, appearing for the appellants,<\/p>\n
submitted that the court below had held that there were materials<\/p>\n
sufficient on record indicating as if the appellants were in possession of<\/p>\n
the disputed property. It was further contended that the genesis of the<\/p>\n
occurrence which relates to the land in question appears not<\/p>\n
established nor the place of occurrence was established as the<\/p>\n
Investigating Officer did not find any blood over the disputed plot nor<\/p>\n
did the Investigating Officer find any trampling mark over it. It was<\/p>\n
submitted that it was a thoroughly ploughed up land and no blood was<\/p>\n
found in any part of the plot. It was submitted that the independent<\/p>\n
witnesses were not examined who had assembled there or were already<\/p>\n
present at the scene of the occurrence.\n<\/p>\n
          12.   The case of the prosecution is that the informant along<\/p>\n
with the deceased and P.W. 2 had come to irrigate the land and in fact<\/p>\n
had filled the land with water. It is also stated by P.W. 3 in his evidence<\/p>\n
and the same is supported by P.W. 2, his son, Lalbahadur Singh that<\/p>\n
they had cut the ridge of the canal to bring the water into the field and it<\/p>\n
had been completely filled up. The very initial case, as contained in<\/p>\n
fardbeyan, was that the informant had to sow the paddy seeds in the<\/p>\n
field and for that the    field had been watered. The water had receded
\n                    -6-<\/span><\/p>\n
and the informant along with his nephew and son was filling the water<\/p>\n
again when the occurrence took place. But, the trial court after perusing<\/p>\n
the case diary had to record the findings of the investigating that the<\/p>\n
P.O. field appeared freshly ploughed. The above findings of the<\/p>\n
investigating officer have been explained by the learned trial Judge on<\/p>\n
mere conjecture.   We want to bring on record that the Investigating<\/p>\n
Officer has recorded in his case diary about the place of occurrence in<\/p>\n
the inspection part of the document that he found the filed thoroughly<\/p>\n
ploughed up and that there was no water or sign of irrigation of it. The<\/p>\n
learned trial judge has noted in paragraph-17 at page 76 of the paper-<\/p>\n
book that might be that the accused persons after the occurrence<\/p>\n
ploughed up the field in order to erase the evidence of irrigation. We do<\/p>\n
not subscribe to the above view of the learned trial Judge especially<\/p>\n
when the finding favourable to the accused persons that no sign of<\/p>\n
irrigation was available on the place of occurrence, the field was<\/p>\n
recorded by the I.O. If the Investigating Officer had not found any sign<\/p>\n
of irrigation or if no water was found in the field then the court cannot<\/p>\n
distort the fact on its own imagination and conjectures and record a<\/p>\n
finding which could not be coming out of the materials on record. We<\/p>\n
are of the opinion that the finding recorded by the Investigating Officer<\/p>\n
on the complete absence of any evidence of the field being irrigated on<\/p>\n
the date of the occurrence was there. If this could be so then the very<\/p>\n
genesis of the occurrence that the accused persons had come to resist<\/p>\n
the irrigation of the field by the informant and his two companions<\/p>\n
cannot be accepted. In that view of the matter, we don’t have any
\n                     -7-<\/span><\/p>\n
hesitation in recording that the prosecution failed in establishing the<\/p>\n
genesis of the case or the origin of the occurrence and its very<\/p>\n
substratum on which the very edifice of the case is built up.<\/p>\n
          13.    P.Ws. 2 and 3 the witnesses who are the father and son<\/p>\n
between them, have come only to support the prosecution case. In the<\/p>\n
evidence of P.W.3 which was rendered in court, it was categorically<\/p>\n
stated by him in paragraph-7 that Chandrama Singh, Sudama Singh<\/p>\n
and Muneshwar Singh had come and according to him they were the<\/p>\n
witnesses to the occurrence. The above named persons,           have been<\/p>\n
named in the F.I.R. also as witnesses to the occurrence, out of whom<\/p>\n
Chandra Singh was examined but he has not stated as to who had fired<\/p>\n
the shot and who assaulted by what weapons. The other witnesses were<\/p>\n
not produced for their evidence in the court. In his evidence P.W. 1 has<\/p>\n
stated that there were many persons working or grazing buffalo in the<\/p>\n
neighbouring plots and the message about the occurrence was sent to<\/p>\n
the villagers through some of the      ploughmen. Those ploughmen and<\/p>\n
other persons have neither been produced nor examined in court. There<\/p>\n
is a clear finding recorded by the learned trial Judge in paragraph-12 of<\/p>\n
the judgement on the basis of       some orders   passed by the Anchal<\/p>\n
Adhikari and the Land Reforms Deputy Collector that the accused<\/p>\n
persons were coming in possession of the land. But the accused persons<\/p>\n
have been held guilty by the learned trial Judge on the only premises<\/p>\n
that they do not set up the plea of exercising or acting in exercise of<\/p>\n
right of their private defence of property.\n<\/p>\n
          14. We are constrained to point out that an accused is not
\n                    -8-<\/span><\/p>\n
required to plead right of private defence. During the course of<\/p>\n
argument it could be shown by the defence after pointing out the<\/p>\n
evidence to witnesses that the accused persons might have acted in<\/p>\n
exercise of their right of private defence either of person or of property<\/p>\n
and as such their acts would be presumed in law as no offence. The<\/p>\n
accused persons need not plead the exercise of the right of private<\/p>\n
defence specifically. They could bring relevant facts on record by cross<\/p>\n
examining the witnesses or by eliciting admission from them which may<\/p>\n
be indicate the probability of exercise of their right of private defence<\/p>\n
either of person or of property and the court would be well within its<\/p>\n
jurisdiction to consider the plea and record a finding.<\/p>\n
          15.   There is no denial of the fact that there was a dispute in<\/p>\n
respect of possession between the parties over the disputed plot. The<\/p>\n
informant was claiming possession through a couple of deeds which<\/p>\n
were executed by Sukhbilasho Kuer. However, the documents like<\/p>\n
exhibit D series indicate that there was a clear finding from the revenue<\/p>\n
authorities in favour of the accused persons that they were in<\/p>\n
continuous possession. It is too well known to be stated that the orders<\/p>\n
of revenue Officers on question of possession are passed only after due<\/p>\n
enquiry is held and that includes holding of local inspection by<\/p>\n
Karamchari or the Circle Inspector. Hence there is a presumption that<\/p>\n
their reports may not be incorrect. If there is evidence on record<\/p>\n
showing that the accused persons were coming in possession of the<\/p>\n
disputed plot since long, then they could be held to be in settled<\/p>\n
possession of the land. In view of the above, no one could unsettle their
\n                      -9-<\/span><\/p>\n
possession by forcibly taking the possession or by stealthily taking<\/p>\n
possession of the land. The accused persons could be within their rights<\/p>\n
not only to resist any attempt of dispossessing them from any property<\/p>\n
but they could also be within their rights to use force to repel such an<\/p>\n
aggression over the properties which is in their possession.<\/p>\n
          16.     A question, as such,    may arise as to whether they<\/p>\n
exceeded the right of private defence. We could simply recall the<\/p>\n
observations of the Supreme Court in A.I.R. 1965 SC 202( Masalti Vrs.<\/p>\n
State of U.P. & Ors.) in which the Apex Court held that when one was<\/p>\n
faced with immediate threat of being ousted from the possession one<\/p>\n
could not be expected to take recourse to legal proceedings and     one<\/p>\n
could very well     be within his   rights to use force to repel such an<\/p>\n
aggression. If one could be using force to repel such aggression, then<\/p>\n
one could not be expected to weigh the force in “golden scales”. We are<\/p>\n
of the opinion that it might be a case lying somewhere near that very<\/p>\n
class of case.\n<\/p>\n
          17.       Besides, we find the case suffering from many<\/p>\n
infirmities. The doctor was not examined. So it remains within<\/p>\n
speculation as to what was the cause of death of Jagdish Singh. The<\/p>\n
Investigating Officer was not examined and again evidence which could<\/p>\n
have been in favour of the accused or in favour of the prosecution could<\/p>\n
not be brought on record. Some important witnesses, who were named<\/p>\n
in the F.I.R. and those who could be present around the scene of<\/p>\n
occurrence when the occurrence had taken place, were neither<\/p>\n
produced nor examined by the prosecution. There is complete lack of\n<\/p>\n
                                         – 10 –\n<\/p>\n
                     tangible explanation in that behalf. No explanation was forthcoming<\/p>\n
                     from the prosecution as to why important witnesses were not examined.<\/p>\n
                     We have already discussed the failure of prosecution to establish the<\/p>\n
                     substratum of the case. In the light of the above, we are of the view that<\/p>\n
                     it was a case in which the prosecution had not succeeded in proving its<\/p>\n
                     case, which entitles the appellants to the benefit of doubt.<\/p>\n
                               18.     In the result, these three appeals are allowed. The<\/p>\n
                     appellants are acquitted of the charges. They are all on bail and, as<\/p>\n
                     such, they are discharged from the liabilities of their respective bonds.<\/p>\n
                                                    ( Dharnidhar Jha, J )<\/p>\n
                                                  ( Birendra Prasad Verma, J )<\/p>\n
Patna High Court
\nDated, the 24th of
\n February, 2010
\n BTiwary\/ NAFR\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Brahmdeo Rai vs The State Of Bihar on 24 February, 2010 Author: Dharnidhar Jha 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-164675","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nBrahmdeo Rai vs The State Of Bihar on 24 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/brahmdeo-rai-vs-the-state-of-bihar-on-24-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Brahmdeo Rai vs The State Of Bihar on 24 February, 2010 - 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