Kali Charan Tanti vs State of Bihar

Appellants, Kali Charan Tanti, Baijnath Tanti, Biro

Tanti, Ram Tanti, Arjun Tanti, Bhed @ Bhede Lal Tanti, Bhojo @

Bhajo Tanti, Kedar Tanti, Chando Tanti, Gama alias Naresh Tanti and

Lalan alias Dilip Tanti along with Kunj Lal Tanti @ Kunjal Tanti

(since deceased whereupon vide order dated 30.04.2015, appeal has

abated) have been found guilty for an offence punishable under

Section 324 of the I.P.C. and each one has been sentenced to undergo

rigorous imprisonment for two years vide judgment of conviction and

sentence dated 29.04.2002 passed by the 3rd Additional Sessions

Judge, Jamui in Sessions Trial No.531 of 1993.

Singheshwar Yadav (not examined on account of

his death) gave his fard-bayan on 03.04.1990 at about 4.00 p.m.

disclosing therein that all the accused armed variously made criminal

trespass over his land and began to cut Mahua tree. He along with his

Pattidars rushed to obstruct and after reaching at the orchard,

protested whereupon accused persons became enraged and began to

hurl bomb, gave arrow blow as a result of which, he sustained bomb

injury while Guhan Yadav (PW-2) had sustained arrow injury.

On the basis of aforesaid fard-bayan, Laxmipur

P.S. Case No.50 of 1990 was registered whereupon investigation

commenced and concluded by way of submission of chargesheet

under the offences exclusively triable by the Court of Sessions,

facilitated the trial before the Court of Sessions which met with

ultimate result, the subject matter of instant appeal.

Defence case, as is evident from mode of cross-

examination as well as statement recorded under Section 313 of the

Cr.P.C. is that the orchard belongs to the accused persons. Because of

the fact that electric wire was to pass over through the field on

account thereof, N.T.P.C. had noticed, paid compensation and further,

directed to remove the Mahua tree which they were cutting. The

prosecution party, armed variously came over the land illegally, forbidden them and as the accused persons protested, hurled bomb,

gave arrow blow as a result of which, they sustained injuries.

Members of the prosecution party have sustained self-inflicted injury.

Furthermore, defence had also examined three DWs, out of whom,

DW-1 Fuleshwar Prasad, DW-2 Kedar Tanti and DW-3 Kartik Prasad

as well as had also exhibited bunch of documents falling under

Exhibit-A to F in support thereof.

In order to substantiate its case, prosecution had

examined altogether nine PWs, out of whom, PW-1 Borhan Yadav,

PW-2 Guhan Yadav, PW-3 Nanku Yadav, PW-4 Bijo Yadav, PW-5

Mathura Yadav, PW-6 Horil Yadav, PW-7 Dr. Subhash Chandra

Ram, PW-8 Chattu Yadav and PW-9 Tirpurari Tiwary as well as had

also exhibited the documents as Exhibit-1 F.I.R., Exhibit-2 series

seizure list, Exhibit-3 series injury report of Singheshwar Yadav

(informant) as well as Guhan Yadav (PW-2), Exhibit-4 sanction order.

From the judgment impugned, it is evident that

learned lower Court had recorded conclusive finding with regard to

place of occurrence belonging to as well as in possession of

appellants/ accused. With regard thereto, the oral evidence having

been adduced on behalf of prosecution has minutely been gone

through in consonance with the documentary evidence having on

behalf of defence and to that extent, the finding recorded by the

learned trial Court appears to be just, legal and proper. Furthermore,

the learned lower Court also perceived that while legal exercise was

being taken up by the appellants/ accused persons during course of

cutting of Mahua tree as noticed by N.T.P.C., the prosecution party

raided. The learned lower Court would have perceived that when

accused persons were cutting Mahua tree and they (prosecution) were

going to prevent them, then in that circumstance, they would have

gone duly prepared to teach a lesson to the accused persons and under

such situation, the prosecution party would have been duly armed

instead of accused persons otherwise would have identified activity of

each and every accused during course of aforesaid occurrence

whereunder allegedly the accused persons were cutting Mahua tree,

which the prosecution utterly failed.

Non-consideration of the probability as is

visualizing from the record in consonance with an admission at the

end of the prosecution witnesses with regard to presence of counter-

case, PW-1 Para-6, PW-2 (injured) Para-3, PW-3 Para-3, PW-4 Para-

6, PW-5 Para-2, PW-6, which has completely been ignored by the

learned lower Court. In the aforesaid background, the learned lower

Court should have considered that for the same occurrence, version

and counter-version was there and so, probability would have been

perceived by the learned lower Court, who could be aggrieved and in

the aforesaid background, who could be the aggressor. Certainly, the

prosecution party was aggrieved and so, they were bent upon to stop

the accused persons from cutting the tree and for that, their presence

being duly arm would be a natural conduct. None of the witnesses,

who are own family members have deposed that they have gone

empty hand. When they had gone only to prevent accused persons

then what was necessity to collect Gotias before going to place of

occurrence and that indicates the intention of the prosecution party,

which is found duly exposed by way of presence of counter-case. In

this connection, non-presence of independent witness, though their

presence have been shown, will be another factor to discredit the

prosecution version.

Though the learned lower Court had acquitted the

accused persons relating to all other charges, but convicted under

Section 324 of the I.P.C. in the background of presence of injuries

over the person of informant as well as PW-2 Guhan Yadav as per

finding of the doctor (PW-7). While adjudicating the same, the

learned lower Court failed to consider that right of private defence

was available to the appellants and further, while exercising the same,

cannot be weighed under golden scale, as the same happens to be

subject to surrounding circumstances.

That being so, in the light of the finding having

recorded by the learned lower Court itself in consonance with

considering the evidence in its entirety, the judgment of conviction

and sentence recorded by the learned lower Court did not justify its

prevalence. Consequent thereupon, the same is set aside. Appeal is

allowed. Appellants are on bail, hence are discharged from its

liabilities.