Harsh Bardhan Sharma and Kailash Rai vs State of Bihar

Hemant Kumar Srivastava, J.—This criminal appeal has been directed against the judgment of conviction and order of sentence dated 21.6.2001 passed by learned Addl. Sessions Judge I, Sitamarhi in Sessions trial No. 133 of 1987/7 of 2000 by which and whereunder the learned trial court convicted the appellant No. 1 for the offence punishable u/s 323 of the Indian Penal Code and sentenced him to undergo imprisonment for one year under the above stated section and similarly, convicted the appellant No. 2 for the offence punishable u/s 325 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for five years and also sentenced him to pay a fine of Rs. 2,000/-. In default of payment of fine, he was directed to undergo imprisonment for a period of six months. The prosecution case, in brief, is that P.W. 5, namely, Nawal Kishore Sharma, gave his fardbeyan on 26.12.1985 at about 4 p.m. before officer-in-charge of Ahiyapur police station at ward No. 5 of SKMCH, Muzaffarpur to this effect that land dispute was going on between him and his brother, namely, Yogendra Kishore Sharma as final partition had not taken place between them. On 25.12.1985, his brother went to plough land situated at village Bagai, police station Runisaidpur, district Sitamarhi but he forbade him to plough the land as partition of the aforesaid land had not taken place. His brother agreed and returned from the aforesaid land but again on 26.12.1985, his brother went to plough the land giving threat to kill him, if he made any obstruction in ploughing the land. P.W. 5 further stated that he along his son, namely, Sanjeev Kumar, went at the aforesaid land and with an intention to save himself, he kept his licencee gun with him. It is further stated that he stopped his brother and others from ploughing the land upon which his brother Yogendra Sharma, Harsh Bardhan Sharma, Ramashish Rai and Kailash Rai started assaulting him with lathi and farsa as a result of which he sustained injuries on his person and his supporter of gun got separated and fell on the ground which was picked up by Harsh Bardhan Sharma. His son Sanjeev Kumar was assaulted with lathi by Kailash Rai as a result of which he sustained fracture injury on his hand. On being alarm raised, his elder son and other witnesses came there and took them to hospital.

On the basis of the aforesaid fardbeyan, Runisaidpur P.S. case No. 243/1985 for the offences punishable under sections 324, 323, 341/34 of the IPC was registered and formal FIR was drawn up under the above stated sections against the appellants and others. Matter was investigated by the Investigating officer and after completion of investigation, Investigating officer submitted charge sheet for the offences punishable under sections 341, 323, 325 of the Indian Penal Code but learned Chief Judicial Magistrate took cognizance for the offences punishable under sections 307, 325, 323, 341 of the IPC and accordingly, case was committed to the court of sessions.

Appellants and other accused persons were put on trial but in course of trial, two accused persons, namely, Yogendra Kishore Sharma and Ramashish Rai died and the proceeding against them was dropped.

Appellants were jointly charged for the offences punishable u/s 307 read with section 34 of the Indian Penal Code whereas appellant Kailash Rai was separately charged for the offence punishable u/s 325 of the Indian Penal Code. Appellants denied the charges and claimed to be tried.

In course of trial, prosecution examined, altogether, ten prosecution witnesses and also got exhibited documentary evidence. The statements of the appellants were recorded u/s 313 of the Cr.P.C. in which they denied the prosecution story and reiterated their innocence.

The defence also examined three defence witnesses and got exhibited some documentary evidence.

It would appear from perusal of the trends of cross-examination of the prosecution witnesses, statements of the appellants recorded u/s 313 of the Cr.P.C. as well as evidence adduced on behalf of the defence that defence of the appellants was total denial of the prosecution story and it was the specific stand of the defence that while appellants were ploughing their land, informant and his associates being armed with fire arms and other weapons came there and attempted to commit murder for which Runisaidpur P.S. case No. 242/1985 for the offences punishable under sections 307, 323/34 of the IPC and 27 of the Arms Act was registered against prosecution party.

The learned trial court, having considered the submissions of the parties as well as having perused the materials available on record, passed the impugned judgment of conviction and order of sentence acquitting the appellants for the offence punishable u/s 307 of the IPC but convicted the appellants in the manner as stated above.

Learned counsel appearing for the appellants submitted that according to the prosecution case itself, appellants had gone to plough the land and prosecution party tried to restrain them from ploughing the land and at that time, P.W. 5, informant was armed with fire arms and therefore, prosecution party was aggressor but the learned trial court failed to consider the aforesaid facts and committed error in convicting the appellants. He further submitted that the prosecution had not come with clean hand and suppressed this fact that appellant Harsh Bardhan Sharma sustained injury in alleged occurrence and lodged Runisaidpur P.S. case No. 242/1985 against P.W. 5 and others. It is further contended by him that the evidences adduced on behalf of the defence reveal that partition between family of appellant Harsh Bardhan Sharma and P.W. 5 had taken place in the year 1960 and disputed land fell in the share of appellant Harsh Bardhan Sharma but the learned trial court failed to consider the aforesaid fact and wrongly convicted the appellants.

On the other hand, learned Addl. Public Prosecutor appearing for the State supported the impugned judgment of conviction and order of sentence arguing that almost all prosecution witnesses have proved the manner of occurrence and place of occurrence and furthermore, injuries found on the person of P.W. 5 and other injured corroborated the prosecution case and therefore, the learned trial court rightly convicted and sentenced the appellants.

Certain facts are admitted in this case. It is an admitted position that alleged occurrence took place on khesra No. 4303 which was ancestral land of P.W. 5 and appellant Harsh Bardhan Sharma. It is also an admitted position that appellant Harsh Bardhan Sharma lodged Runisaidpur P.S. case No. 242/1985 for the occurrence of the same day against the prosecution party of this case.

P.W. 2, Sanjeev Kumar is an injured witness. P.W. 3, Suman Kumar Sharma, P.W. 4, Shankar Kishore Sharma and P.W. 6, Md. Sirajul are said to be eye-witnesses of alleged occurrence. P.W. 8 Dr. Arun Kumar Chakarbartoy examined P.W. 5 Nawal Kishore Sharma on 26.12.1985 and found, altogether, ten injuries on his person. P.W. 9, Rajdeo Singh is the Investigating officer of this case whereas P.W. 10, Dr. Suresh Pd. Sharma examined P.W. 2, Sanjeev Kumar 26.12.1985 and found injuries on his person. P.W. 1 is a formal witness whereas P.W. 7 has been tendered by the prosecution. P.W. 5 Nawal Kishore Sharma is the informant of the case.

P.W. 8 Dr. Arun Kumar Chakarbartoy stated that on 26.12.1985, he examined P.W. 5 and found following injuries on his person:

i) One lacerated wound 1" x 1/6" x scalp deep over the left side of frontal bone.

ii) One lacerated wound bleeding 3" x 1/6" x scalp deep over upper aspect on left parietal bone.

iii) One lacerated wound 1" x �" x �" x scalp deep over the left side of parietal bone.

iv) One lacerated wound 1" x 1" x muscle deep over visceral aspect of right little finger.

v) Swelling and abrasion of right middle finger with swelling of right hand as its upper half dorsally for which the x-ray was advised.

vi) Lacerated wound 2" x 1/6" x muscle deep over little finger with swelling.

vii) Lacerated wound over left middle finger 2" x 1" x tissue deep.

viii) Abrasion two in number, one dorsum of left index finger with swelling for which x-ray was advised.

ix) Abrasion over outer aspect of right arm

x) Swelling and pain over right arm for which x-ray was advised.

This witness further stated that after perusing x-ray report, he found injury No. 8 grievous in nature whereas all injuries were simple in nature and the above stated injuries were caused by hard and blunt substance. From perusal of evidence of P.W. 8, it is apparent that on 26.12.1985, altogether, ten injuries including grievous injury were found on the person of P.W. 5 and the aforesaid injuries were not of such a nature which could have manufactured.

P.W. 5, Nawal Kishore Sharma stated in his deposition that partition of family property had not taken place between him and his brother and appellant Harsh Bardhan Sharma is full brother of Yogendra Sharma. This witness further stated that in the morning of 26.12.1985, his brother threatened him to plough the disputed land, and also threatened him that if he would come to the aforesaid land, he would be killed by him. P.W. 5 further stated that he being armed with his licencee gun along with his son went to the disputed land where he found the accused persons including the appellants who were ploughing the land having armed with lathi. He also noticed that a farsa was lying near the southern ridge of the aforesaid land. He stated that he forbade the appellants and other accused to plough the land but the aforesaid appellants and the accused persons started assaulting him with farsa and lathi and when he tried to stop the appellants and other accused, he sustained injury and supporter of his gun fell down on the ground and appellant Harsh Bardhan Sharma picked up the aforesaid supporter. This witness further stated that when his son Sanjeev Kumar came to save, he was, too, assaulted by Kailash Rai. The occurrence was witnessed by several persons. He further stated that he lodged the case. This witness proved his signature on fardbeyan. This witness admitted at para 20 of his deposition that occurrence took place on eastern side of plot No. 4303 and the aforesaid portion was entered in the name of Yogal Kishore Sharma in survey khatiyan. He also admitted at para 20 of his deposition that appellant Harsh Bardhan Sharma lodged criminal case in Runisaidpur police station for the occurrence of the same day. He further admitted that partition Jjin the family had not taken place but in 1980 a registered panchnama for partition was prepared. He denied this fact that partition in the year 1960 had taken place. He also stated that in 1986 he had filed a petition for correction of jamabandi.

P.Ws. 2, 3, 4 and P.W. 6 also supported the story of assault.

P.W. 9, Investigating officer of this case, stated at para 2 of his deposition that alleged occurrence took place on Khesra No. 4303. He also stated that he recorded fardbeyan of P.W. 5 and he found him in injured condition at ward No. 5 of SKMCH, Muzaffarpur and he also found P.W. 2, Sanjeev Kumar in injured condition in the same hospital. This witness admitted at para 8 of his deposition that Runisaidpur P.S. case No. 242/1985 was counter case of the present case and in the aforesaid case, appellant Harsh Bardhan Sharma was the informant and he produced broken supporter of a gun and other articles. This witness proved FIR of Runisaidpur P.S. case no. 242/1985 as exhibit A.

On perusal of the entire evidence available on the record, it is apparent that there were case and counter case between the parties and both parties sustained injuries in the aforesaid occurrence. Furthermore, it is also an apparent from the materials available on the record that litigation in respect of plot No. 4303 was going on between the parties prior to alleged occurrence.

P.W. 5 stated that he went to the disputed land and bade the appellants and other accused to plough the land as the resaid land had not been partitioned between him and appellant Harsh Bardhan Sharma but the appellants and other accused assaulted him as well as his son, P.W. 2 whereas appellant Harsh Bardhan Sharma stated in Runisaidpur PS. case No. 242/1985 that P.W. 5 along with his son being armed with gun and other weapons came on disputed plot and started assaulting him and others.

Admittedly, P.W. 5 has not disclosed in the fardbeyan about injuries sustained by the appellants and others at the time of alleged occurrence in the same occurrence and therefore, it appears that P.W. 5 has not come before the court with clean hand and suppression of the material fact creates doubt about manner in which prosecution case is said to have taken place.

P.W. 5 has admitted in his deposition that some ancestral lands were allotted to him and others and he as well as his other co-sharers were ploughing the aforesaid lands according to their convenience. Although it is the specific case of P.W. 5 that plot No. 4303 had not been partitioned and litigation in respect of the aforesaid land was going on but he admitted in his deposition that alleged occurrence took place on eastern side of the aforesaid land and P.W. 9 admitted at para 21 of his cross-examination that he found division on the disputed plot at the time of inspection of the place of occurrence. Therefore, it would appear from the aforesaid fact that there was bonafide land dispute between the parties and both parties were claiming their possession over disputed plot. Furthermore, I find that the prosecution could not succeed to prove this fact that the prosecution party was in exclusive possession of the aforesaid land and it were the appellants who were aggressor. Therefore, in my view, appellants are entitled to get benefit of doubt. On the basis of the aforesaid discussions, I am of the opinion that the learned trial court committed an error in convicting and sentencing the appellants. Accordingly, the impugned order of the conviction and order of sentence dated 21.6.2001 is, hereby, set aside and the appellants are acquitted of the charges giving benefit of doubt. Both the appellants are on bail. They are discharged from their liabilities of bail bonds.