Ratish Jha and Others vs The State of Bihar

Narayan Roy, J.—Heard learned Counsel for the Appellants and learned Counsel for the State.

Both these appeals arise out of common judgment and order of conviction and sentence, and, therefore, the same have been heard together and are being disposed of by this common judgment.

All the Appellants of Criminal Appeal No. 260 of 1987 have been convicted under Sections 302/149 and 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and three years rigorous imprisonment, respectively. Appellants Ratish Jha and Ram Jha have further been found guilty u/s 324 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years. However, sentences have been directed to run concurrently.

Whereas Appellant of Criminal Appeal No. 315 of 1987 has been convicted under Sections 302 and 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life, three years, respectively. The sentences have been, however, directed to run concurrently.

The prosecution case, in brief, is that on 4.11.1979 Rajiv Jha of the informant, Bauku Jha was tending buffalo west of the village near the Pokhara and Guni Lai and the informant were also present in nearby mango orchard and at about 2.00 PM accused Laddu Jha of village Rajeshwari came there and enquired why he had grazed his paddy crop and seeing this accused Laddu Jha rushed towards Rajiy Jha to assault him. At this, the informant denying the allegation protested which led to an altercation and exchange of abuse between the informant and the said Laddu Jha and thereafter, Laddu Jha went to his house and after sometime, the said Laddu Jha with bow and arrow, Lai Jha armed with sword, Anant Jha armed with Bhala, Thakan Jha and Doctor Jha aimed with bow and arrow and Basant Jha and Dilip Jha armed with bow and arrow and Bam Jha armed with sword-all of village Rajeshwari, started rushing to the informant forming unlawful assembly and shouting "Maro-Maro". It is further alleged that seeing the accused persons coming to the informant, his cousin out of fear came to their Darwaja but accused chased them in front of his Darwaja up to Sahan and accused Niras Jha encouraging the remaining accused asked them to kill Rajiv Jha and the informant, on which Laddu Jha cast an arrow on his bow aiming towards Rajiv Jha, which hit him on the left side of his scalp and accused Ratti Jha alias Ratish Jha assaulted the informant with bow and arrow, which hit him in his chest and on hulla raised by him, his brother Bam Jha came to his rescue, but accused Bam Jha son of Hira Jha gave him a blow by sword. Accused Tnakhan Jha, Dilip Jha and Doctor Jha also injured Bam Jha, the brother of the informant by their bows and arrows and the remaining accused persons were also shouting "Maro-Maro". It is further alleged that as soon as the arrow of Laddu Jha hit Rajiv and Bam Jha, they fell down unconscious in a pool of blood in front of the Darwaja on the Sahan and on further hulla, the villagers, namely, Jai Narain Jha, Nago Jha, In dradeo Jha, Mithilesh Jha and others also came and saw the occurrence and identified the accused persons and they removed the informant and other injured to Koriapatti Hospital, where the condition of Rajiv Jha deteriorated and he remained lying there unconscious. The fardbeyan of Bauku Jha (P.W.6), the informant, was recorded by the police on 4.11.1979 at 6.15 hours at Koriapatti hospital, and subsequently, injured Rajiv Jha succumbed to the injuries. The police, therefore, registered a case under Sections 148, 149, 307, 302 and 324 of the Indian Penal Code against the accused Appellants.

After due investigation charge-sheet was submitted and after taking cognizance of the offence the case was committed to the court of session,'' wherein trial the Appellants have been found guilty and have been convicted and. sentenced as indicated above.

The defence of the accused Appellants was total denial of the charged levelled against them and they have pleaded innocence. It is the specie defence of the accused Appellants that the present case launched against them, was a counter-blast to the case lodged by accused Appellant Laddu Jha alias Indra Kishore Jha in Chhatarpur Police Station Case No. 1(11)79 (Ext. A). A plea has also been taken by the accused Appellants that they inflicted injuries on the prosecution party in exercise of their right of private defence when the prosecution party attempted to loot their properties from the godown and house.

The prosecution, in all, examined Seven witnesses in support of its case. P.W.1, Mithilesh Jha,. P.W.2 Chitralekha Devi, P.W. 3 Indradeo Jha and P.W. 6 Bauku Jha, the informant, are eye-witnesses of the occurrence. P.W. 4 Fuleshwar Sah has not ''seen the actual occurrence, but he has tried to prove the prosecution case. P.W.5 Harideo Jha has been tendered. P.W.7 is the Investigating Officer of the case.

P.W. 6 Bauku Jha in his evidence has supported the prosecution version of the case, as disclosed in the first information report. This witness in his evidence has stated that on the date of occurrence Basant Jha was asking his brothers Moho and Nunu as to why his paddy crops had been grazed. When it was denied by his brothers, Appellant Basant Jha assaulted them and on hearing hulla he came out from his angon and went to the village Mukhia. In the meantime, Niraj Jha ordered to kill Bauku Jha (P.W.6) and Rajiv Jha. On it Appellant Laddu Jha shot an arrow on the head of Rajiv Jha and Appellant Ratish Jha; shot an arrow on him. He has further stated in his evidence that other accused persons also collected there with verious lethal weapons. After sustaining injuries Rajiv Jha became unconscious and he along with Rajiv Jha went to Koriapatti hospital, where his statement was recorded by the police. In his cross-examination, this witness has remained candid in supporting the prosecution version of the case. However, he has admitted that he has a common court-yard with Appellant Laddu Jha and the same (angon) is saparated by tatti.

P.W. 1 Mithilesh Jha in his evidence has stated that on the fateful he was in his angon and having heard hulla he came out of his angon and saw the altercation going on in between Bauku Jha, the informant (P.W. 6) and Appellant Laddu Jha. He has further stated that Niraj Jha was there holding bow and arrow, whereas other accused persons were also armed with lethal weapons. He has further stated that Niraj Jha ordered accused Appellant Laddu Jha to kill Rajiv Jha and Bauku Jha (P.W.6)'' and on it Appellant Laddu Jha shot arrow on the head of Rajiv Jha, whereas Appellant Ratish Jha shot an arrow on the head of Bauku Jha (P.W.6), which hit him on the chest. He has further stated that accused Bam Jha shot blow on the head of Ram Shankar Jha. In his cross-examination, this witness has stated that Appellant Laddu Jha had also lodged a counter case, in which he was one of the accused.

P.W. 2 Chitralekha Devi in her evidence has also supported-the prosecution version of the case and has deposed on the line of P.W.1. P.W.3 Indradeo Jha has also supported the prosecution version of the case and has deposed on the line of P.W.s 1 and 2. However, in his evidence this witness has admitted that he had seen injuries on the person of Appellant Laddu Jha and he has also stated about the counter case lodged by Appellant Laddu Jha, wherein he is one of the accused. P.W.4 Fuleshwar Sah is a hearsay witness, but he has stated in his evidence that when he went to the Dar-waja of Appellant Laddu Jha, he had seen injuries on one of the hands of Appellant Laddu Jha.

P.W. 7 is the Investigating Officer of the case. In his evidence he has stated that he had found blood stained marks at the place of occurrence. According to him, the place of occurrence is the outer portion of Sahan of Appellant Laddu Jha.

In his evidence he> has also stated that the courtyard of Appellant Laddu Jha and the informant (P.W. 6) is separated only by a tatti. In his evidence he has further stated that he had found two arrows stuck in his tatti separating the courtyard of Appellant Laddu Jha and the informant (P.W.6). From the evidence of the investigating officer (P.w.7), it is manifestly clear that some occurrence had taken place at the place of occurrence, where both the sides sustained injuries. It is also manifest from his evidence that he had seen injuries on the person of Appellant Laddu Jha and had also seen some sort of violence in the godown of Appellant Laddu Jha. It is also evident from his evidence that he had also seen a portion of paddy field grazed, belonging to Laddu Jha.

The defence has also examined two witnesses in support of its case. D.W.1 is Dr. Bindeshwari Prasad Singh, who had examined injuries on the person of the Appellant Laddu Jha alias Indra Kishore Jha. D.W, 2 Debo Mallah has supported the counter case filed by Appellant Laddu Jha.

learned Counsel appearing on behalf of the Appellants submitted that the prosecution has suppressed the material facts and the injuries suffered by Appellant Laddu Jha alias Indra Kishore Jha have not been explained. It is further submitted by learned Counsel appearing on behalf of the Appellants that the prosecution witnesses are all related to each other and they are interested witnesses, therefore, their evidence should be taken into consideration with due caution.

From the evidence of the prosecution witnesses, as discussed above, and also from the evidence of the defence witnesses'', it is manifestly clear that some occurrence had taken place, where both the sides sustained injuries. Ext. A is the first information report lodged by Appellant Laddu Jha, whereas Ext. 1 is the first information report lodged by the informant (P.W. 6). P.Ws. 3 and 4, namely, Indradeo Jha and Fuleshwar Sah, respectively, have stated about the injuries suffered by Appellant Laddu Jha vis-a-vis the injuries suffered by the informant (P.W.6) and Rajiv Jha, the deceased. In this view of the matter, the prosecution witnesses have unfolded the true picture of the occurrence, and, thus, J they have explained the injuries suffered'' by the defence side.

The prosecution witnesses have remained consistent in saying that Appellant Laddu Jha alias Indra Kishore Jha had shot arrows on the head of the, deceased, Rajiv Jha, and as a result of the injuries, he became unconscious and consequently, he succumbed to the in juries. They have also remained consistent in saying that Appellants Ratish Jha and Bam Jha also inflicted injuries on the informant (P.W.6) and Bam Shankar Jha However, no doctor has been examined nor the injury reports have been proved that these persons had sustained injuries at the hands of the Appellants. It is furthest apparent from the evidence on record that the doctor, who held post-mortem examination, has not been examined the prosecution. However, the post-mortem report (Ext. 3) has been tendered to evidence u/s 294 of the Code of Criminal Procedure.

On scrutiny of the evidence, as discussed above, with all objectivities, appears that the occurrence had taken place at the spur of the moment and since the prosecution side and the defence side are residing side by side, would be difficult to hold that the accuser persons had formed an unlawful assent for committing murder of the deceased, Rajiv Jha. There is Specific evidence that Appellant Laddu Jha alias Indra kishore Jha had shot arrows; hitting the deceased M his head and the deceased died of head injury caused by arrow, which is evident from Ext. 3. This Appellant, however, has been found guilty for an offence u/s 302 of the Indian Penal Code, and, accordingly, he has been (sic) to suffer rigorous imprisonment for life. However, the conviction of the rest of the Appellants u/s 302/149 of the Indian Penal Code is not sustainable. At the same time, the conviction of appelant Ratish Jha and Bam Jha u/s 324 of the Indian Penal Code is not sustainable, as the injuries inflicted upon the informant (P.W. 6) and Bam Shankar Jha have not been proved. Further it is1 not known as to why injured Bam Shankar Jha was not examined as one of the prosecution witnesses, as he would have been the best person to depose about the injuries suffered by him. In view of the specific evidence, it was Appellant Laddu Jha alias Indra Kishore Jha, who was armed with bows and arrows and he arrows on the deceased, Rajiv Jha. conviction of the rest of the. Appellant u/s 148 of the Indian al Code would also not be sustainable, as the injuries on the person of Informant (P.W. 6) and Bam Shankar have not been proved. There is no evidence showing that rest of the Appellants had also attempted with lethal weapons upon the life of the deceased, Jha.

At the face of the evidence, discussed above, now it is to be decided as whether Appellant Laddu Jha alias a Kishore Jha, who himself had sustained injuries on his person, duly proved by D.W.1, exceeded, in exercise of his right of private defence, as envisaged u/s 97 of the Indian Penal Code. From the evidence of D.W.1, it appears that injury No. 1 was grievous in nature, whereas injury Nos. 2 and 3 were simple in nature. From the evidence of the prosecution witnesses, it is evident that Appellant Laddu Jha alias Indra Kishore Jha shot arrows hitting on the head of the deceased knowing it full well that arrow is a dangerous weapon. It is also evident that the deceased died out of the head injuries caused by arrow shot by this Appellant. This Appellant in that view of the matter, must be held to have exceeded in exercise of right of private defence of the body and property. The right of private defence as envisaged u/s 97 of the Penal Code is a defensive and protective right and it is only exercised to protect oneself and one''s property. The act committed by this Appellant, therefore, cannot be held to be in exercise of right of private defence.

In view of the evidence and findings, discussed above, it is held that conviction and sentence passed against Appellant Laddu Jha alias Indra Kishore Jha of Criminal Appeal No. 315 of 1987 u/s 302 of the Indian Penal Code is well sustainable and requires no interference. However, the prosecution has failed to prove the charge against this Appellant, Laddu Jha alias Indra Kishore Jha, u/s 148 of the Indian "Penal Code, and, therefore, his conviction and sentence u/s 148 of the Indian Penal Code are not sustainable.

In the result, Criminal Appeal No. 260 of 1987 is allowed and the impugned judgment of conviction and sentence is set aside and the Appellants of this appeal are acquitted of the charges levelled against them. Since the Appellants of this appeal are on bail, they are discharged from the liabilities of their bail bonds.

So far Criminal Appeal No. 315 of 1987 is concerned, Appellant Laddu Jha alias Indra Kishore Jha is not found guilty u/s 148 of the Indian Penal. Code, and, therefore, his conviction and sentence u/s 148 of the Indian Penal Code are set aside. However, his conviction and sentence u/s 302 of the Indian1 Penal Code are upheld. With this modification, as indicated above, Criminal Appeal No. 315 of 1987 is dismissed. Since the Appellant of this appeal is on bail, his bail bonds are cancelled and he is directed to surrender in the court below to serve out the remaining part of his sentence u/s 302 of the Indian Penal Code.

B.N. Singh "Neelam", J.

I agree.