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Judgment
J.C.S. Rawat, J.—This appeal has been directed against the judgment and order of conviction dated 3.12.2002 and 4.12.2002 respectively, passed by Learned Additional Sessions Judge, F.T.C-I, Gumla in S.T. No. 37 of 1996 whereby the accused-appellants have been convicted u/s 324 read with Section 149 of the Indian Penal Code and sentenced for the imprisonment, already undergone during investigation, inquiry and trial of the case.
In a nutshell, the prosecution story is that Hafendra Nagesia, appellant No. 4 was ''Pattidar'' of the land which was being ploughed by the informant Jitu Nagesia PW10. There had been a protracted land dispute between them since long. On the date of occurrence on 28.5.1995, at about 8.00 A.M, the appellants having weapons, namely Balua, Tangis in their hands came all of a sudden along with one Gandle Nagesia when the informant Jitu Nagesia PW10 along with others namely, Sukhu Nagesia, Sodair Nagesia, Baisukh Nagesia, Guddar Nagesia Buda Nagesia, Sukra Nagesia, Daura Nagesia, Charku Nagesia and two others were ploughing their field. The appellants assaulted the informant PW10 and other witnesses as a result of which they sustained injuries on their persons and they were medically examined by the doctor in Primary Health Centre, Gumla and a report was lodged by Jitu Nagesia, PW10 before the Police. After recording his fard beyan, the Police started investigation and submitted charge-sheet. The learned Trial Court framed charges against the appellants. The accused-appellants denied all the charges and claimed the trial.
The prosecution, in support of its case, examined PW-1-Sukhu Nagesia, PW-2-Sodair Nagesia, PW-3-Baisukh Nagesia, P.W.4-Guddar Nagesia, PW.5-Buda Nagesia, PW-6-Jagtu Nagesia, PW-7-Sukra Nagesia, PW.8-Daura Nagesia, PW-9-Charku Nagesia, PW-10-Jitu Nagesia, the informant before the Trial Court. They have claimed to be the eye witnesses to the occurrence. The prosecution has also examined PW11 Kuldeep Singh who has given secondary evidence to prove the FIR and the contents of the case diary. The Investigating Officer was not produced before the Trial Court. PW12 Ramesh Prasad Sinha, is a retired employee of Gumla Hospital and he was produced to prove the injury reports prepared by Dr. C.N. Sharma at the time of examination of the injured in the Hospital. He has given secondary evidence before the Court. Dr. C.N. Sharma was not produced before the court.
After recording evidence of the prosecution, the appellants were examined u/s 313 of the Criminal Procedure Code. They have denied all the averments made in the prosecution case. They have categorically stated that they been have falsely been implicated in the case and have denied their participation in the incident. The accused-appellants had also given the documentary defence evidence in support of its case. They have filed the certified copy of the judgment and final decree dated 25.5.1983 in Partition Suit No. 34 of 1978, a certified copy of the order sheet of the Execution Proceedings initiated in Execution Case No. 2 of 1987, the document regarding handing over of the possession of the land was also produced before the court. The defence has also adduced judgment by SDJM Gumla in Case No. C. 146 of 77 in which it was alleged that the crops of the accused party/appellants were cut forcibly, without consent of the, accused-appellants and the appellants had been arrayed as accused in the said case and the accused appellants were acquitted by the Trial Court holding that the theory of the prosecution was not credible and cogent. The defence, further produced a copy of the charge-sheet in Sessions Trial No. 170 of 1996, in which it has been stated that on the date of incident, Gandel Nagesia died at the spot and it is alleged that the informant Jitu Nagesia PW10 as well as the prosecution witnesses had committed his murder at the spot. No oral evidence in support of defence case was adduced before the Trial Court. After appraisal of the evidence, the Trial Court convicted the accused-appellants u/s 324 read with Section 149 of the Indian Penal Code and sentenced them to undergo imprisonment already under gone by them.
I have heard learned Counsel for the parties and perused the record.
Undisputedly, the prosecution witnesses, on the one hand and the informant party on the other hand sustained injuries on the spot. Prosecution witnesses namely PW-1-Sukhu Nagesia, PW-2-Sodair Nagesia, PW-3-Baisukh Nagesia, P.W.4 Guddar Nagesia, PW.5-Buda Nagesia, PW-6-Jagtu Nagesia, PW-7-Sukra Nagesia, PW.8-Daura nagesia, PW-9-Charku Nagesia were examined in the case, it is also not in dispute that Gandel Nagesia died at the spot. It is alleged by the prosecution that the deceased Gandel Nagesia and these appellants had emerged together at the spot and they assaulted the informant/complainant party at the spot. In the fard beyan, it is also stated by the informant PW10 that at the time of incident, Gandel Nagesia died at the spot, but he did not know how he died at the spot. It is also in the evidence that the deceased was alive before the incident and he had emerged at spot along with these appellants and he died at the spot. PWI Sukhu Nagesia has further stated in his evidence that he did not know the plot No. and the place where the incident occurred and he could not tell that the incident occurred in plot No. 4655 measuring 0.46 decimal of Khata No. 100. The land where the incident occurred had been partitioned by virtue of the judgment and decree of the court and possession thereof had been given to the father of the accused appellants. The accused-appellants were ploughing the said field after the decision of the Partition Suit. Thus, PW5 Buda Nagesia in paragraph 3 of his deposition has also stated that there was a decree of partition pursuant to which possession of the land was handed over to the appellants. Thus, it is amply established that the spot was the very place where the death of Gandel Nagesia occurred. The place of incident is thus established by the evidence of the prosecution witnesses. Now, it is to be seen that to whom the said plot belongs to.
Perusal of the judgment and final decree in the aforesaid partition suit No. 34 of 1978 reveals that the plot No. 4655 measuring 0.46 decimal of Khatha No. 100 was given to the appellants. It is apparent from the schedule of the final decree. The Exhibit C dated 8.6.1987 which is ''dakhalnama'' clearly indicates that the possession of the land had already been given to the decree holders of the said plot. Thus, it is amply established that in the year 1987, possession of the disputed plot no .4655 had been handed over exclusively to the appellants. It is not the evidence of the prosecution that after 1987, the accused appellants had been dispossessed from the said land and the complainant/informant party were put in possession. In absence of such evidence, the continuance of possession by the appellants would be presumed u/s 114 of the Indian Evidence Act. Thus, it is well established that on the date of occurrence, the accused-appellants were in possession of the plot where the incident occurred. Now, the factual matrix reveals that according to the prosecution, five persons (including the deceased) from the side of the appellants had emerged at the spot whereas, according to the prosecution, ten persons were already there at the spot ploughing the disputed field at the time of the occurrence. Thus, it indubitably gives an impression that the complainant/informant party went at the spot and forcibly started taking over possession of land in dispute. The accused appellants reached at the spot to protect their property and in consequences thereof, the incident occurred resulting in the instantaneous death of Nagesia at the spot and the complainant party sustained injuries. The other aspect which emerges from perusal of the evidence on record is whether the appellants were already at the spot from before. There is no doubt from the evidence of the prosecution that the appellants were not present at spot. One of the persons of the appellants'' party sustained injury and consequently he succumbed to the injuries. The informant party including the informant also sustained injuries at the spot. Thus, it is amply established that the informant as well as the other witnesses were present at the spot. The complainant/informant party was definitely good in number, whereas the appellants including the deceased were only five in number on the spot. Thus, it is quite unreasonable to believe that the appellants were ploughing the field where the incident occurred. The evidence of the prosecution also leads to an inference that it was, in fact, the informant party which was ploughing the field in absence of the accused-appellants who had came at the spot to stop ploughing of the field by the informant party who had trespassed into the land of the appellants.
The learned Counsel appearing for the appellant contended that the appellant had a right of private defence and even if the injuries were caused, that have been caused in self defence. Legal proposition of law regarding the plea relating to private defence as provided in Section 96 of Indian Penal Code is that that nothing is an offence which is done in exercise of such right of private defence. The Section does not define the expression ''right of private defence''. It merely indicates that nothing is an offence which is done in the exercise of such right. Whether in a particular set of circumstances, a person acted in the exercise of the right of private defence is a question of fact to be determined on the facts and circumstances of each case. No test in the abstract for determining such a question can be laid down. In determining this question of fact, the Court must consider all the surrounding circumstances to come to the conclusion as to whether the act had been committed in self-defence of his right. It is not necessary for the accused to plead in so many words that they acted in self defence. If the circumstances show that the right of private defence was legitimately exercised, it is open to the Court to consider such plea in a plea. In a given case, the court can consider it even if the accused has not taken the plea as self-defence u/s 313 of the Code of Criminal Procedure if the same is available to be considered from the circumstances and the materials on record. u/s 105 of the Indian Evidence Act, the burden of proof is on the accused who sets of the plea of self-defence and in the absence of proof, it is not possible for the Court to presume the truth of the plea of self-defence. The Court shall presume the absence of such circumstances. It is for the accused to place necessary facts from the prosecution evidences examined before the Court. An accused taking the plea of the right of private defence is not required to call evidence; they can establish their plea by reference to the circumstances transpiring from the prosecution evidence itself. The question in such a case would be a question of assessing the true effect of the prosecution evidence and not a question of the accused discharging any burden. Where the right of private defence is pleaded, the defence must have a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. Reference in this context may be made to the case of Laxman Singh Vs. Poonam Singh and Others,
The Hon''ble Supreme Court in Munshi Ram v. Delhi Administration AIR 1968 SC 702 ; Vijayee Singh and others Vs. State of U.P., Kashi Ram and Others Vs. State of M.P., held that though Section 105 of the Evidence Act enacts a rule regarding burden of proof but it does not flow therefrom that the plea of private defence should be specifically taken and if not taken, shall not be available to be considered though made out from the evidence available in the case. A plea of self defence can be taken by including such plea in the cross examination of the prosecution witnesses or in the statement of accused persons recorded u/s 313 of the Code of Criminal Procedure or by adducing defence evidence and even if the plea is not introduced, in any one of these three modes, still it can be raised during the course of submissions by relying on the probabilities and circumstances obtaining in the case.
In the instant case, it is established that the land belonged to the accused appellants. The possession of the land in question had been handed over to them. They were in possession. There was no occasion for the informant party ploughing the same field in which the appellants were in possession. One of the persons of the appellants who emerged at the spot was assaulted and he died at the spot which leads to an inference that the accused appellants had a right of self defence at the time of incident. The defence has put suggestion during cross examination putting forward the case of private defence.
Apart from this, admittedly, a person of the appellants'' party namely Gandel Nagesia died at the spot. Before incident, the deceased Gandel was alive and he died during the incident. So it is apparent that during the course of incident he sustained injuries ultimately died. The injuries sustained by the deceased had not been explained by the prosecution which was its bounden duty.
In the instant case, that the prosecution must have come forward with an explanation how the deceased sustained injuries and how he died at the spot. Non explanation of the injuries on the person of the deceased clearly reveals that the manner of incident as stated by the prosecution has not been properly placed before the court and on that score, the evidence of prosecution is also not reliable, cogent and convincible and is liable to be discarded.
While parting with the judgment, I would like to observe that I have seen in many cases that cross cases are tried by different Addl. Sessions Judge in the District and they are not clubbed together and they are decided by different courts. Even the Presiding Officers also ignores this fact that cross cases are pending before the other court.
In the instant case, the prosecution witnesses have categorically stated that they are accused in a cross case and they have mentioned the Sessions trial No. as well as the Court. As a rule of prudence, both the Sessions trial where the cross cases are pending should be heard and decided together. Though it is not rule of law that it should be heard and on that ground trial would not be vitiated, but keeping in view the rule of prudence, this should be tried together.
In this case, it also transpires from all witnesses of the prosecution that they are accused in cross case. They have admitted this fact in their cross examination. In view of the above, the prosecution has failed to prove its case. The trial court has erred in convicting the appellants holding them guilty of the offence. The appeal is therefore liable to be allowed.
For the foregoing reasons, this appeal is allowed and the order of conviction and sentence by the trial court in Sessions Trial No. 37 of 1996 is hereby set aside.