Babaji Mahto And Ors vs State Of Jharkhand

Heard learned counsel for the appellants and learned counsel for the state.

Appellants are aggrieved by the judgment of conviction and order of sentence dated 27.2.2003 passed by learned Additional Sessions Judge, Fast Track Court No.2, Deoghar in Sessions Case No. 349 of 2001 whereby and whereunder all the appellants were convicted under sections 148/341/323/307/149 of IPC and sentenced to undergo R.I. for five years and fine of Rs. 5000/- each , in default of payment of fine S.I. for one year u/s 307/149 IPC. The appellants were further sentenced to R.I. for two years u/s 148 IPC, S.I. for one month u/s 341 IPC and R.I.for one year under section 323 of IPC. It was also ordered that 60% of the fine amount deposited shall go to the informant of the case. All the sentences were directed to run concurrently.

The prosecution case as per the written report of the informant Bacchu Yaddav PW-10 is that on 14.7.2001 at 8:30 a.m. he along with his father, elder brother Ram Deo Yadav and mother Reshmi Devi were working in the field of Plot no. 1052 under J.B. No.10.In the mean time all the accused persons or appellants herein armed with farsa, tangi and rod came at the place of occurrence and told the informant's father to stop ploughing the field. On his father's denial, the accused Babaji Yadav and Maheshwar Yadav ordered to kill and bury the informant side.Thereafter accused Babaji Yadav inflicted four-five farsa blows upon the informant's father as a result he sustained injuries on his forehead and hand.Thereafter accused Jugal Yadav assaulted informant's father from behind with tangi on his head as a result he fell down. Then accused persons assaulted informant's brother Ram Deo (PW-2) and mother Reshmi Devi(PW-6) as a result both of them sustained injuries . When the informant went to save them, accused persons assaulted him with rod on his head which he resisted by his hand and hence he sustained injury on his hand. Thereafter, accused Maheshwar Yadav assaulted him by farsa on his forehead twice and then Jugal assaulted him by tangi on his head and he fell down. The reason for the aforesaid incident as stated by the informant is said to be land dispute.

On the basis of the written report of the informant Jasidih P.S. Case No. 124 of 2001 under sections 147/148/149/341/323/324/325/307 of IPC were registered against the accused persons. After investigation, police submitted charge-sheet against the accused persons or appellants herein. Cognizance of the offences were taken and case was committed to the court of Sessions. Charges were framed against the accused persons under sections 147/148/341/323/325/326 and 307 r/w 149 of IPC.Trial was held and after the conclusion of trial, accused persons or appellants herein were convicted and sentenced as aforesaid. Hence, this appeal.

In support of its case, prosecution had examined altogether twelve witnesses. PW-10 Bacchu Yadav is the informant of this case.PW-1 Lalji Mahto,PW-2 Ram Deo Yadav and PW-6 Reshmi Devi are the father,brother and mother of the informant respectively.P.W.-4 Basuki Mahto, P.W.-5 Banshi Mahto, P.W.-7 Pancham Mahto, P.W.-8 Fuleshwar Mahto and P.W.-9 Ramesh Yadav were declared hostile.PW-11 is doctor Jai Prakash Mishra, who examined the injured persons and PW-12 is the investigating officer of the case.

P.W.-1 Lalji Mahto, father of the informant has stated that about one year ago he was ploughing his field along with his two sons Ram Deo(PW2) and Bacchu(PW-10) and his wife Reshmi Devi(PW-6).In the mean time appellants variously armed with deadly weapons arrived there and told them not to plough the field.Accused Babaji ordered to kill the informant and their family members. Babaji assaulted him with farsa as a result he sustained injuries on his forehead, on right hand and his left hand finger and blood oozed out.Accused Jugal assaulted him with blunt side of an axe on his forhead as a result he sustained injury on his head.Accused persons assaulted his son Bacchu and Ram Deo and his wife Reshmi and they also sustained injuries. All injured were treated at hospital. The occurrence was reported at the police station by his son.In his cross-examination he stated that his wife has filed partition suit on the appellant side but appellant side says partition has already been done.

P.W.-2 Ram Deo Yadav is the brother of the informant.He stated that at the time of occurrence they were ploughing the field with his family members.In the meantime all accused persons came there armed variously with deadly weapons and told them not to plough the field but they continued.Then accused Babaji ordered to kill and all the accused persons started assaulting them.This witness further stated that accused Babaji Mahto assaulted his father with farsa on his head and hand as a result he sustained injury and blood oozed out.This witness was assaulted by accused Mani and Bhuma by rod on his head.Informant Bacchu yadav was assaulted by Maheshwar on his head and hand by farsa. Reshmi Devi was assaulted by accused Mani and Bhuma by rod.

P.W.-3 Tahir @ Putul Ansari is labour who was nearby the place of occurrence on the day of incident. On hulla, he went at the place of occurrence and saw blood oozing out from the persons of Lalji Mahto, Bacchu Mahto, Ram Deo Mahto and mother of Bacchu.He saw accused Babaji, Maheshwar and other accussed persons there armed with farsa, tangi,rod and lathi. Thereafter, accused persons fled away.

PW-6 Reshmi Devi is the mother of the informant. She stated in her evidence that at the time of occurrence she was at the place of occurrence and her husband was ploughing the field. In the meantime all the accused persons came there variously armed with deadly weapon. Accused persons told them not to plough the field and threatened them to bury alive.The accused Babaji Mahto assaulted her husband with farsa on his forehead.

She was also assaulted with lathi and rod by all the accused persons.

P.W.10 Bacchu Yadav is the informant of this case.He stated in his evidence that at the time of occurrence he was working at his field alongwith PW-1 Lalji, PW-2 Ram Deo and PW-6 Reshmi Devi. In the meantime all accused persons came there variously armed with deadly weapons and told them to stop ploughing. Thereafter, accused Babaji assaulted by farsa on Lalji's forehead and hand and accused Jugal assaulted by tangi on Laljis forehead. Accused Mani and Bhuma assaulted Ram Deo with rod.PW-10 further stated that when he went to save them he was also assaulted by Maheshwar by farsa on his forehead and accused Mani Bhokta assaulted him by rod on his hand. He has proved his signature in the written report which was marked as Ext.1.In his cross-examination PW-10 stated that reason behind the occurrence is land dispute with accused Bhuma. At Paragraph-7 informant stated that accused side have instituted a false case of assault on them for the same day of occurrence regarding Plot no.1035.

P.W.-11 is the doctor who examined the injured persons from informant sides.He has proved the injury report of PW-1 Lalji Yadav, PW-2 Ram Deo Yadav,PW-6 Reshmi Devi and informant PW-10 Bacchu Yadav which was marked as Ext-2/1,Ext-2,Ext-2/3 and Ext-2/2 respectively. The doctor deposed that there are two supplementary injury reports of Lalji Mahto and Bacchu Mahto according to which injury no.4 of Bacchu Mahto and Injyry no. 4 and 5 of Laljee Mahto are grevious in nature.

P.W.-12 Prem Nath is the investigating officer of the case. He has proved formal F.I.R. marked as Ext.3, registration in the written report of the informant marked as Ext.-4 and police requisition of the injured marked as Ext.5 to 5/3.

ARGUMENTS ON BEHALF OF APPELLANTS:

Learned counsel for the appellants submitted that this is a case concerning land dispute. However,the concerned land belongs to the side of the appellant's party. Learned Counsel argues that it appears from the decree passed in T.S. 45 of 1961 which has been brought on record by the appellant side as Ext.L,it appears that suit was filed by the informant side for declaration of right,title and intrest over the suit property but ultimately the suit was decreed in terms of compromise between both the parties. Counsel has argued that in compromise petition which has been brought on record by the appellant side as Ext-M whereby it was agreed that plot no. 1052 would go to Babaji Mahto or appellant no.1 who was the minor son of Bhuma Mahto or appellant no.2. at the time of compromise. Learned Counsel for the appellant further submitted when the land concerned belongs to the appellant's party then the informants side have no cause of action.

Thereafter, learned counsel for the appellants has taken this court through the evidences of some of the prosecution witnesses and submitted that their evidences are inconsistent or contradictory or in some way in favour of the appellant's side. Learned Counsel for the appellant has pointed out para 9 of the evidence PW-1 Laljee Mahto and submitted that Laljee Mahto has in this paragraph has stated that he does not know whether Babaji Mahto has filed a counter case or not but they have secured bail in a case, however in which case they took bail, he does not have information.Learned Counsel for the appellants further submits that Laljee Mahto seems to deny having clear cut knowledge of the counter case and also denies knowing in which case they have procured bail, meaning thereby that it seems that there is dispute in more than one case amongst the parties. It also appears from the evidence of this witness at paragraph 10 that against the accused persons or appellants herein he has lodged five or six cases meaning that there is history of tremendous enmity between the parties and therefore the case shall be judged and viewed in this light.

Learned counsel for the appellants has further argued that PW-6 Reshmi Devi who is the wife of PW-1 Laljee Mahto and mother of the informant PW-10 in her cross-examination deposed that she had no knowledge whether there is litigation going on between the accused parties from before. But,her husband PW-1 Laljee Mahto has in his crossexamination at paragraph-1 has stated that his wife or PW-6 Reshmi Devi has filed a partition case against the accused persons.Hence,learned counsel submitted that deposition of husband PW-1 and wife PW-6 are contradictory to each other.

Learned counsel for the appellant then referred to the evidence of P.W.10 Bacchu Yadav who is the informant of the case and pointed out para 2 of his cross-examination and submitted that informant has stated that dispute was subsisting with the accused from before and he does not know whether plot No. 1035 and 1052 was given to Babaji as his share in land. Learned Counsel for the appellants therefore submitted that this witness simply denied having knowledge about the ownership of the relevant plots.

Learned Counsel for the appellants further pointed out para 2 of the deposition of PW-12 who is the I.O. of the case and submitted that in course of investigation he saw the documents related to the disputed land and the place of occurrence on plot no.1052. Counsel for the appellants then referred to para 2 of cross-examination of the I.O. and submits that I.O. had stated the appellant Babaji had registered Jasidih P.S. case no.125 of 2001 for the same day of occurrence. Counsel for appellant further submits that I.O. had visited the place of occurrence and found that there was subsisting land dispute between the parties. Investigating officer had also investigated the case on the point of adoption and I.O. stated in para-4 of his crossexaminisation that appellant Babaji in the capacity of adopted son of Ganpati Mahto was claiming the land of the place of occurrence and to annual adoption deed informants's grandmother Sukni Gowalin had lodged a T.S. No. 45/1961 in the court of the Sub Judge-II, Deoghar which was compromised in the year 1962 and accordingly, certain shares of land were shared between the parties. In the court of of sub-Judge T.S. No. 52 of 2000 for the fresh dispute is till subsisting.

Learned counsel for the appellant summarizing his argument has submitted that admittedly there is long standing land dispute between the parties and therefore there is animosity between the parties and matter has to be viewed in that light also. Counsel however said that it is to be noted that the place of occurrence which is said to be in the written report of the informant i.e. plot no. 1052 and from the decree of T.S. no. 45 of 1961 brought on by the appellant side shows that in the said suit the land concerned i.e. plot no.1052 belongs to the side fo the appellant. Learned counel for the appellant again reiterates that this Title Suit was compromised wherein plot no. 1052 had gone to Babaji Mahto or appellant no.1 who was then the minor son of Bhuma Mahto or appellant no.2. Learned counsel further submitted that appellant had no genuine grievance.

Learned counsel for the appellant further argued that apart from question of fact that which of the parties were aggressor it has anyway also nevertheless come that the injuries inflicted were not fatal to life.

Learned Counsel for the appellant further submitted that as per the Supreme Court judgment in State of M.P. v. MishriLal(Dead) & others,reported in (2003)9SCC426 at para 7 and Para 8 it is directed that all such cases arising out of the same incidence should be tried together. However this is not the case. If this was so the learned trial court trying both the case would have been in better position to arrive at the truth of the matter. Therefore, in the omission of such trial being held together the appellants are grossly prejudiced and benefit of acquittal must be extended to them. It is any way very apparent that the land in question belonged to the side of appellants and they were also in the possession of the field and therefore appellants were not the aggressor.

As an alternative prayer learned counsel for the appellants has argued without admitting the guilt of the appellants that the case is of the year 2001 and the judgment of the trial court below is of the year 2003 from the time of occurrence several years have passed and the appellants have faced rigours and vigours of trial and also there is no injury to cause serious harm or damage to the informant parties. Therefore, the period undergone them by them may be considered sufficient punishment. Learned counsel for the appellants also submitted that he is willing to give any compensation if awarded.

ARGUMENTS ON BEHALF OF STATE-PAPP

Learned counsel for the state on the other hand argued that the offences are fully made out against the appellants that after forming unlawful assembly and coming fully prepared with arms they assaulted the informant's side with various weapons with intention to cause death and hence the judgment passed by the lower court is fully justified. The informant's side were restrained from exercising their possesion on their lands and rather they were restrained so that they could be assaulted. There is no question of benefit of right of private defence being extended to the appellant side.Learned counsel further submitted that there are also injured witnesses and being injured witnesses their evidence carries much more weight than other witnesses. Therefore, the injury itself speaks that they are true and reliable witnesses that cannot be disregarded.

Counsel for the State learned A.P.P. then submits that all the injured victim had received incised injuries,swelling injuries and grievous injuries have also been found caused by sharp cutting and hard and blunt weapons.Therefore, given the evidence of the doctor and the nature of injuries and also the description of injuries which are said to be incised also and by sharp cutting weapons definitely prove the criminal intent of the appellants.The offence has been done so because of long standing disputes between the parties and though it is often said that enmity cuts both ways but the injuries found on the body of the persons of the informant's side itself testifies to who is the guilty party.There is a injury on the head of Lalji Mahto which demonstrates the intent of the appellant's side. Lastly learned for the state submitted that impugned judgment passed by the learned court below is based on cogent evidence and hence requires no interference by this court.

FINDINGS

Having gone through the arguments of both the counsel and the records of the case and in facts and circumstances I find that the genesis of the present case is land dispute amongst both the parties who are related to each other.

The present criminal appeal arises out of written report of the informant PW-10 Bacchu Yadav dated 14-7-2001 and registration of the FIR being Jasidih P.S case No. 124/2001 dated 14-7-2001 registered under Section 147/ 148/ 149/ 341/ 323/ 324/ 325/ 307 of IPC . The counter FIR being Jasidih P.S case No. 125/2001 dated 14-7-2001 was registered under Section 147/148/149/341/323/324/379 of IPC on the basis of written report dated 14-6-2001 of Babaji Mahto, who is the appellant No.1 in this present appeal.

From the record it appears that occurrence of assault between both the parties took place on 14-7-2001 in the morning at about 8.30A.M. and members from both sides were involved in the assault on each other resulting in injury caused to the members from both parties which ultimately culminated in case and counter case from the respective sides.

The appellants before this court as well as in the learned trial court have taken the defense that informant side was the aggressor and appellants used their right of private defense. Hence, on these defence of the appellants this case has to judge.

In order to determine plea of appellants side that informant side were aggressor and appellant side used their right of private defense this court has to see which side has the right, and title and possession over the jamabandi no.10, Plot no.1052 where the alleged incident of assaults is said to have taken place as per the written report of the informant PW-10 Bacchu Yadav. To prove the title and possession over the jamabandi no.10, Plot no.1052, appellants side have brought following documents on record before the learned court below in their defense :

Ext-L is Copy of decree passed in Title(Partition )Suit No.-45 of 1961

Ext-M is compromise petition in the aforesaid Title Suit No.-45 of 1961

Ext-H is order passed in Mutation case no. 59 of 1979-80 dated 28-1- 1983 by the Sub -divisional officer, Deoghar,DistrictSanthal Pergana.

On perusal of Ext-L, I find that it is a copy of decree dated 8-9-1961 passed in Title (Partition ) Suit No. 45 of 1961 by the Subordinate Judge, Deoghar. This suit was decreed in terms of compromise petition between both the parties and the compromise petition was a part of decree . Further, I find from Ext-H, which is order passed in Mutation case no. 59 of 1979- 80 dated 28-1- 1983 by the Sub -divisional officer, Deoghar, DistrictSanthal Pergana and in its aforesaid order Sub -divisional officer allowed mutation of plot no. 1052, mouza-Chandpur in favour of Babaji Mahto or appellant no.1 herein.

On perusal of Ext-M which is a copy of compromise petition in Title Suit No.-45 of 1961, I find this compromise was made between Sukani Gowalin - the plaintiff and Daro Mahatwain &others as a defendant 1st party and Bhatani Mahatwain as defendant 2nd party. In Paragraph- 4 of this compromise petition it is written that defendants 1st party except defendant No.1 would get the lands described in Schedule "B" and even on the death of the defendant no.1, the plaintiff or the defendant 2nd party would have no claim over the same and would go to Babaji Mahato(Appellant no.1) minor son of Bhuma Mahoto (Appellant no.2) who was adopted by the said defendant No.1 and none of the other parties will have any claim thereafter. Here,it is pertinent to note that P.W.-1 Lalji Mahto (father of the informant Bacchu Mahto) has himself stated in his cross-examination at paragraph -2 of his evidence that Sukani Gowalin (Plaintiff in Title Suit No.-45 of 1961) is his mother. Further, in ScheduleB of the compromise petition of Title Suit No.-45 of 1961, I find Plot No. 1052. Hence, as per paragraph-4 of the compromise petition Babaji Mahato (Appellant no.1) has title over the land of Plot No. 1052.

So, based on above discussion ,I find that appellant no.1 Babaji Mahto had valid title over plot no.1052 as would appear from Ext-L and Ext-M and Babaji Mahto was in possession of the plot no. 1052 as mutation of plot no. 1052 was done in favour appellant no.1 Babaji Mahto as would appear from Ext-H . Hence, as per the written report dated 14-7- 2001 of informant PW-10 Bacchu Yadav, wherein informant himself has admitted that on the day of occurrence informant parties were working on the land of Plot no.1052 leads to a conclusion that informant party had no right ,title and possession over plot no. 1052 and hence informant parties were aggressor. The Ext-L, Ext-M and Ext-H consist of a significant body of evidence in favour of the appellants.

Coming to the impugned judgments passed by the learned court below, I find that in the learned court below also appellant side had taken plea that land in question i.s plot no 1052 where the occurrence of assault is said to take place as per the written report dated 14-7-2001 of informant P.W-10 belonged to the appellant side and the informant side were aggressor. But, the learned court did not take pain to determine which of the both parties had right ,title and possession over plot no.1052 and which of the party was aggressor and did not give any findings on these issues.

Hon'ble Apex Court in the case of State of M.P. v. Ramesh , reported in (2005)9SCC 70 has held regarding right of private defense at paragraph -10 that in a particular set of circumstances, a person legitimately acted in exercise of right of private defense is a question of fact to be determined on the facts and circumstances of each case. In determining this question of fact, the court must consider all the surrounding circumstances. Hon'ble Apex Court further held that if circumstances show that the right of private defence was legitimately exercised, it is open to the court to consider such plea .

In summing up, I find from the evidences on record and in fact and circumstances and also the ratio of Hon'ble Apex Court Passed in State of M.P.(Supra), that appellants were legitimately exercising their right of private defense as appellant side had valid right ,title and possession over the plot no.1052. The informant P.W.-10 of the case himself has stated in his written report that on the day of occurrence they were working in the field in plot no.1052 meaning thereby that informant side were working in the field in plot no. 1052 without any title and possession and hence, the informant side were aggressor. Informants' side also sustained injuries but the evidences in the case leave some room of doubt in the prosecution story and hence leading this court to give benefit of the doubt to the appellants. This is also in view of the continuous persistent enmity between the parties that there was also injury on the side of appellants.

Accordingly, the judgment of conviction and order of sentence dated 27.2.2003 passed by learned Additional Sessions Judge, Fast Track Court No.2, Deoghar in Sessions Case No. 349 of 2001 cannot sustain and is set aside. The appellants are acquitted of the charges levelled against them and also discharged from the liabilities of their respective bail bonds.

Accordingly, the appeal is allowed.