CRIMINAL APPEAL No.209 OF 1988 ___ (Against the judgment and order dated 9.3.1988 passed in S.T.No.112 of 1986/178 of 1986 passed by 2nd Additional District & Sessions Judge, Saran at Chapra) ____ 1. Rahman Mian 2. Sirajuddin Mian 3. Raj Bali Mian … Appellants Versus The State of Bihar … Respondent _____ For the Appellants : Mr.Arun Kumar Tripathi, Advocate appearing as Amicus Curiae For the Respondent : Mr. Lala Kailash Bihari Prasad, Learned Public Prosecutor P r e s e n t THE HON’BLE MR.JUSTICE SUDHIR KUMAR KARTRIAR THE HON’BLE MR.JUSTICE SAMARENDRA PRATAP SINGH The instant appeal has been preferred against the judgment and order dated 9.3.1988, passed by learned 2nd Additional District and Sessions Judge, Saran at Chapra, in S.T.No.112 of 1986/178 of 1986, whereby he has convicted all the three appellants under sections 302/34 of the Penal Code and sentenced them to life imprisonment. 2. The prosecution case in short as made out in the statement/fardebyan of Jaibun Nisa, wife of Abdul Kalam, resident of Village Bhorha, P.S. Panapur, District Saran recorded by the S.I., K.P.Singh of Panapur P.S. on 7.6.1985, at her house at 9.30 A.M., is as follows: (i) The informant stated that her father-in-law, Kitab Mian, aged 60 years, had gone to see his field situated in front of her house towards north measuring 6 Kathas. She stated that the aforesaid land, since many years, is coming in their S.K.Katriar, & S.P.Singh,JJ 2 possession. While the informant’s father-in-law was having the land ploughed by Nand Prasad, appellant no.3, her relative Raj Bali, son of Rahman Mian, asked her father-in-law not to plough the land. Thereupon Kitab Mian replied that the land belongs to him and as such he would continue to plough the same. Thereafter Raj Bali went towards his house and immediately returned to the field along with his father Rahman Mian and his brother Sirajuddin Mian. Raj Bali was armed with farsa, his father Rahman Mian was armed with Bhala and Sirajuddin was armed with lathi. They immediately started assaulting her father-in-law. Rahman Mian instigated others to kill whereupon Raj Bali hurled farsa blow on the head of her father-in-law and Rahman Mian gave bhala blow on the gatta of left hand as a consequence Kitab Mian fell to the ground. Thereupon Sirajuddin Mian assaulted him with lathi. (ii) The informant, her sister-in-law Najma Khatoon, and mother-in-law Hashiban, on seeing the occurrence, rushed towards Kitab Mian raising hue and cry and shielded him from more assault. Near about that time, the accused persons began to flee away. Aforementioned Nand Prasad, son of Baldeo Bhetihar, and one Baliram Bhetihar, son of Jagdeo Bhetihar, who were also working in the nearby field saw the occurrence and tried to intervene. On account of assault, blood oozed from both head and mouth. While they were trying to go to the police station one Dr. Islamuddin came and around that time her father-in- law died. The informant claimed that the accused persons with common intention came variously armed and murdered her father-in-law. On the basis of the aforesaid fardbeyan (Ext.2), Panapur P.S.Case No.82/85 was instituted under section 302/34 of the Penal Code. After investigation, charge sheet was submitted and cognizance of offence under section 302/34 of the Penal Code was taken and the case was committed to the court of sessions on 31.3.1986 for trial. Charges under section 302/34 of the Penal Code was framed against the accused persons to which they pleaded not guilty and claimed to be tried. 3 3. The prosecution examined altogether nine witnesses in support of its case, whereas the defence examined three witnesses. Out of nine prosecution witnesses the informant Jaibun Nisa (P.W.1), Najma Khatoon (P.W. 2) , Hashibun (P.W.3) wife of the deceased, Nand Prasad (P.W. 4) ploughman, Baliram (P.W.5), who is cousin of P.W.4, are eye witnesses to the occurrence, Ushman Ansari (P.W.6), and Ayub Ansari (P.W.7), are formal witnesses, and K.P.Singh (P.W.8) is the Investigating Officer of the case, whereas Dr. C.N.Gupta (P.W.9) conducted autopsy on the deceased Kitab Mian. 4. Jaibun Nisha (P.W.1), who is the informant and daughter-in-law of the deceased, reiterated the prosecution case in her deposition and fully supported the same. She stated that 6 Kathas of land just situated in front of her house towards the north is coming in family’s possession since long. She stated that her father- in-law was getting the land ploughed by Nand Prasad (P.W.4) to which Raj Bali (appellant no.2), son of Rahman Mian (appellant no.1), raised objection. The informant’s father-in-law stated that the land is coming in his possession since long and as such he will continue to plough the same. On hearing the reply, Raj Bali went home and came back with his father and brother variously armed with farsa, bhala and lathi. The informant stated that, at the instigation of Rahman Mian, Raj Bali assaulted the deceased with farsa on the head and the former assaulted with bhala consequent to which her father-in-law fell on the ground. Thereafter accused Sirajuddin Mian assaulted him with lathi. She further stated that she along with her sister-in-law Najma Khatoon (P.W.2), and mother-in-law Hashiban (P.W.3), rushed to save Kitab Mian. She stated that P.W.4 was also there. Thereafter they brought her father-in-law to the door of their house and laid him on a Chauki. She stated that she is not aware that Sarfuddin is son of Kudush Mian who in turn is son of Sher Ali. She stated that her father-in-law was treated by Dr. Islamuddin. She stated that her father-in-law, who was in precarious and unconscious state, died soon after the arrival of I.O. On being questioned by the 4 defence, she stated the respective boundaries of the aforesaid 6 Kathas of land being bounded as follows: North : Havaldar Sah South : Jai Kumar Bhagat East : Jai Kumar Bhagat West : Jai Kumar Bhagat 5. Najma Khatoon (P.W.2) consistently supported the prosecution case as narrated by the informant P.W.1. She asserted that the plot in question was in possession of her family and her father-in-law used to cultivate the field earlier also. She stated that the P.O. is only 15-20 feet north to her house, and at the time of assault her father-in-law was standing in the eastern portion of the field. She stated that her father-in-law was brought to the door of his house and kept on a Chowki. She stated that, however, the wound still bled. 6. Hashiban(P.W.3) is the wife of the deceased and mother-in-law of P.Ws 1 and 2. She made also similar deposition as P.Ws 1 and 2 in respect of the occurrence. She explained the family genealogy vis-à-vis the appellants. She also stated the history of the plot in question which is coming in possession of her family since long. She stated that both Kitab Mian and Rahman Mian are sons of Noor Mohammad, who is full brother of Sher Ali. She stated that Sher Ali did not have any son or grand son by the name of Kudush Mian or Sarfuddin Mian. She stated that Sher Ali by different mortgaged deeds had mortgaged the land in favour of Abdul Kalam, son of the deceased, in 1958 and 1973. 7. P.W.4 Nand Ram, who was ploughing the land at the time of occurrence too supported the prosecution case. 8. P.W.5 Baliram Bhagat is a farmer and stated that he saw the occurrence from his field which is situated nearby the place of occurrence. 9. P.W.6 Usman Ansari is a formal witness who proved his own signature (Ext.1) and the signature of Ashfque Ansari (Ext.1/1) on the inquest report (Ext.4). 5 10. P.W.7 is also a witness of seizure of lathi and Bhala and his signature on the seizure list is marked as Ext.1/4. 11. P.W.8 is the I.O. who recorded the fardbeyan (Ext.2) of informant (P.W.1) and prepared the inquest report (Ext.4) and made investigation of the case. He stated in his evidence that on hearing rumor of death of a person in village Bhorha he made station diary entry to that effect, and reached the place of occurrence at 8.20 A.M. He stated that at that time, a Doctor was treating the deceased who died soon thereafter. The I.O. stated that he found blood at the place of occurrence as well as around the mouth and head of the deceased. 12. P.W.9 is Dr. C. N. Gupta who held post mortem (Ext.5) on the dead body of the deceased on 8.6.1985, at about 10.00 A.M., and found one stitched wound 4” long on the scalp. On dissection, the line bone was cut with injury to the brain mater 2”x1/2”x brain substance deep. 13. It appears from evidence here, that the plot no.2606 measuring 11 Kathas 6 dhurs and plot no.2610 measuring 16 dhurs belonged to Sher Ali. By three mortgaged deeds he mortgaged, the aforesaid plots in favour of Abdul Kalam, husband of P.W.1. The mortgaged deeds have been marked court exhibits bearing Ext. I, I/1 and I/2. 14. The defence examined three witnesses. D.W.1 Durga Lal proved rent receipts (Ext.A & A/1). D.W.2 Laddu Singh who is a cultivator has proved the certified copy of the sale deed executed by Sarfuddin in favour of Rahman Mian as Ext.B. He further stated that Rahman Mian is coming in possession of the land since long. However, in his cross-examination he submitted that he has not seen the sale deed personally. D.W.3 proved the affidavit (Ext.D) filed by P.W.5 which was typed as per his statement. P.W.5 in his affidavit stated that he had made his statement before the police at the dictates of latter. However, P.W.5 in his deposition stated that he was not aware of contents of the affidavit, which has been marked as Ext.D. 6 15. On consideration of the evidence on record the learned trial court found that the place of occurrence, manner of occurrence and time of occurrence have been duly proved by the prosecution beyond all reasonable doubt. The trial court found that Sher Ali way back in 1958, and 1973 mortgaged 12 Kathas 6 dhurs of land in favour of prosecution side and the land in question, where occurrence took place, is part and parcel of aforesaid mortgaged land. He found that the mortgaged bonds are still subsisting. He also noticed that under section 12 of the Money Landers Act, after 7 years, mortgaged bonds would get redeemed and the mortgager may take possession through requisite process of law. But in this case, he found that there is no evidence on record that the requisite process of law has been resorted to for getting back the land and as such land continued to be in possession of prosecution. 16. The trial court also found that the right of private defence is not available to the accused persons. He observed that as the command of the accused Raj Bali was not obeyed by Kitab Mian, the latter immediately came variously armed with other two appellants in a pre-planned manner and killed him in open field. The trial court found the charge under section 302/34 of the Penal Code fully proved and convicted the accused accordingly. 17. Mr.Arun Kumar Tripathi, who appeared as amicus curiae on behalf of the appellants, submits that the judgment and order of trial court is erroneous and bad both in law and in fact. He submits that the medical evidence is not in consonance with the prosecution case as the deceased did not sustain any Bhala or lathi blow on his person. He further submits that no independent witness has been examined and the witnesses are all family members and interested witnesses. He submits that the land in question was transferred in favour of appellant no.1 by one Sarfuddin, grand son of Sher Ali, by registered sale deed marked as Ext.B. He submits that it would appear from the evidence of D.W.2 that the appellants are in possession of the land in question. In this respect he also referred to the rent receipts which has been marked Ext.A and A/1 proved by D.W.1. 7 18. Mr. Lala Kailash Bihari Prasad, learned Public Prosecutor, submits that the prosecution has proved the charge under section 302/34 of the Penal Code against the appellants beyond all reasonable doubt. He submits that the accused persons came in pre-concerted manner variously armed to commit the murder of the deceased as latter disobeyed their command. He further submits that the evidence on record both oral and documentary would show that the prosecution side was in possession of the land. He submits that the plea of right of private defence is not available to the accused persons and in this respect he relied upon decisions of the Apex Court in the case of Jai Dev Singh Vs State of Punjab, AI.R.1963 SC 1612 and in the case of Jassa Singh & Ors Vs State of Haryana, 2002 SCC(Cri) 363. He submits that in any view of the matter the appellants have not taken this plea in their statement under section 313 Cr.P.C. He further submits that merely because medical evidence is not partly in consonance with the prosecution case, the oral evidence of eye witnesses would not become unreliable. He submits that oral evidence would be judged on the basis of its quality and trustworthiness. In support of his contention he relied upon a decision of the Apex Court in the case of State of U.P. Vs Harban Sahai &Ors, 1998 SCC (Cri) 1412 and in the case of Baso Prasad & Ors Vs State of Bihar, 2007(1) P.L.J.R.48 (SC). 19. The important issue in the case is whether the accused persons forming common intention killed the deceased. It would appear from the fardbeyan (Ext.2) of P.W.1 that appellant no.2 asked the deceased not to plough the field. It was virtually a warning to obey the command otherwise consequence would follow. As the deceased did not relent and continued to plough the field, the appellant no.2 within a few minutes was back with his father and brother variously armed, and committed his murder. Najma Khatoon(P.W.2), another daughter-in-law of the deceased, and Hashiban (P.W.3), wife of the deceased, also stated that the appellants attacked and murdered the deceased with common intention. They stated that they saw the occurrence from their door, the place of occurrence being 8 an open field just 20 ft. north to their house. P.W.4 who was ploughing the field at the instance of the deceased, and P.W.5 who was working in the nearby field, also stated that all the accused persons in a pre-concerted manner attacked the deceased. We find that the eye witnesses consistently stated that the accused persons forming common intention murdered the deceased. 20. The next issue is whether the prosecution has been able to prove the place of occurrence. According to the prosecution case, the occurrence took place in the eastern part of a piece of land measuring 6 Kathas situated just in front of the deceased’s house towards the north. All the five witnesses, namely, P.Ws 1, 2, 3, 4 and 5 have consistently stated that the deceased was murdered by the appellants in the aforesaid field. Thereafter they brought him to their door where he was laid on a “Chauki”. The Investigating Officer (P.W.8) also found and seized blood from the aforesaid place. Thus this court finds that the prosecution side has also duly proved the place of occurrence. 21. The other issue is whether the occurrence took place at 7 A.M. on 7.6.1985, as stated in the F.I.R. All the eye witnesses namely P.Ws 1, 2, 3, 4 and 5 have consistently stated that the occurrence took place at 7 A.M. The Investigating Officer (P.W.8) in his deposition stated that at 8.20 A.M. he came to the door of the deceased where he found him lying in precarious condition and as such the defence side has not been able to extract any thing from the witnesses to doubt the time of the occurrence as stated by the prosecution. The time elapsed since death as mentioned by the Dr. C.N. Gupta (P.W.9) in his post mortem report dated 8.6.1985 held at 10 A.M. also supports the prosecution case in respect of time of occurrence. Thus we find that the time of the occurrence has been duly proved by the prosecution. 22(a). So far as issue of possession of the land in concerned, the informant, P.W.1 in her fardbeyan stated that her family is in possession of the aforesaid 6 Kathas of land since long. P.W.1 in her deposition stated that she heard her father- in-law telling appellant no.2 that the field belonged to him and as such he would 9 continue to plough the same.P.W.2 and P.W.3 also stated that the field belonged to their family. P.W.4 also stated that the deceased always asserted that the field belonged to him. He stated that in fact he was ploughing the field at the instance of the deceased. P.W. 5, who has his land very near to the aforesaid field, stated that the deceased used to plough the field in past also. b). Further more the defence never questioned the genuineness of mortgaged deed Ext.I, II and III executed by one Sher Ali, grand father of their vender Sarfuddin made in favour of the prosecution side in the years 1958 and 1973. It appears from the sale deed (Ext.B), produced by the defence that Sarfuddin who claimed to be the grand son of Sher Ali, executed the sale deed in the year 1982 in their favour. Nothing has been brought on record by the defence to show that they took possession of the land in question from the prosecution side, in whose favour the land was mortgaged earlier. A sale deed would not confer any better right, title or possession than the one the vendor would be possessing. If a vendor is out of possession of his land, then the vendee merely on the basis of the sale deed cannot be deemed to have come in possession of the land. The possession of the land covered by a mortgage, which has not been redeemed, could be re-possessed only by process of law. The defence has not brought any material on record to show that they possessed the land by process of law. Thus we find that the prosecution by both oral and documentary evidence has been able to satisfy that they are in possession of land. 23. The submission of the defence that the authenticity of the prosecution case suffers on account of non-examination of the independent witness also does not find favour with this court for the following reasons: i) The occurrence took place only 15-20 ft. north to the house of P.Ws 1, 2 and 3 and as such the aforesaid witnesses who were at the door of the house would be said to be the most natural witnesses to have seen the occurrence. Further more, the occurrence has not only been supported by the aforesaid P.Ws 10 1, 2 and 3, but also by P.Ws 4 and 5 who are neither family members, nor related to prosecution side, nor were they having any animus with the accused side. ii) It is well settled by now that the evidence of interested witnesses could not be discarded solely on the ground that they are interested witnesses if their evidence is otherwise reliable and trustworthy. 24. It has been argued on behalf of the appellant that the medical report is not in consonance with the oral evidence. It would appear that the eye witnesses who were seeing the occurrence from about 20 ft. stated that one farsa blow was hurled on the head of the deceased, and a Bhala blow was struck on his left hand and thereafter he was assaulted by lathi. The medical report show only one injury on the head of the deceased. On this premise, learned counsel for the appellant submits that as medical testimony do not support the prosecution case, the same ought to be held unreliable. The contention of learned counsel for the appellants does not hold good in the facts and circumstances of the instant case. It is not in dispute that the witnesses P.Ws 1,2 and 3 saw the occurrence from the door of their house which was about 20 ft. away from the place of occurrence. It is very probable that the three lady members may not have seen Bhala blow hurled by Rahman (appellant no.1) missing the target. It is significant to note that at least this much would be apparent from the evidence of witnesses that appellant nos.1 and 3 also made murderous attempt on life of the deceased. 25. There is no presumption in law that if a group of persons opened fire or hurled blows, it will cause as many injuries on the deceased. Some of the shots can miss the target. The Hon’ble Apex Court in the case of Mithilesh Upadhyaya Vs State of Bihar, 1997 S.C.C.(Cri) 716, was considering testimony of eye witnesses, wherein it was alleged that each of the three appellants fired at the victim and that each shot hit him. In the post mortem report only two wounds of entry were found on the person of the deceased. On this basis the defence argued that the case of the prosecution does not find corroboration from the post mortem report. The Apex Court dispelling the argument of the accused persons observed 11 that the testimony of the eye witnesses cannot be discarded merely because only two wounds of entry was found in the post-mortem examination as against allegation of three definite shots hitting the deceased. The Apex Court observed that as the occurrence was witnessed by the eye witnesses from some distance, it is very probable that they could overlook that on account of misfiring or erratic aim, some of the fire opened by accused may miss the target. 26. Thus in the facts and circumstances of the case we find that merely because the post mortem report shows only one injury caused by farsa on the head, the same would not weaken the prosecution case or would create a doubt regarding participation of the other appellants in the occurrence. 27. The plea of right of private defence is not available in the facts of the present case. The accused/appellants have not taken this plea in their statement under section 313 Cr.P.C. It is the consistent case of the prosecution that the deceased Kitab Mian was having his land ploughed by one Nand Ram (P.W.4). Obviously the place of occurrence was an open field and the deceased was unarmed, being bare hand. It has been alleged that appellant no.2 came to the place of occurrence and asked the deceased not to plough the land. The deceased is said to have stated that as the land belongs to him he would continue to plough the same. There upon the appellant no.2 went home and returned with his father and brother all being armed. As soon as they reached near the place of occurrence, the appellant no.1 Rahman Mian instantly exhorted other accused persons to assault the deceased on which appellant no.2 Raj Bali hurled farsa blow on the head of the deceased followed by assault by others. In such circumstances, the question of right of private defence does not arise at all as it were the accused who attacked and were aggressors. In fact the right of private defence to the contrary would have been available to the deceased to defend his life and property as he was brutally attacked. The right of private defence has been dealt in Chapter IV beginning from sections 96 to 106 of the Penal Code. It would be useful to quote sections 96, 97 and 103 of the Penal Code, which runs as under: 12 “96. Things done in private defence – Nothing is an offence which is done in the exercise of the right of private defence. 97.