Ram Lakhan Singh vs The State of Bihar

Sachchida Nand Jha, J.—These three appeals arising from the judgment and order of the 1st Additional Sessions Judge, Gaya, in Sessions Trial No. 43/21 of 1977/85 have been heard together and are disposed of by this common judgment.

There are 14 appellants in Criminal Appeal No. 171 of 1986 out of whom appellant No. 1 Ram Lakhan Singh, appellant No. 9 Amerika Singh, appellant No. 12 Ugrah Singh and appellant No. 14 Baudhi Dusadh are said to have died during the pendency of the appeal. An affidavit sworn by Arjun Singh describing himself as a relative has been filed. Each of the appellants has been convicted u/s 302/149 of the Penal Code and sentenced to imprisonment for life for being the members of unlawful assembly, the common object of which was to commit the murder of Sakal Manjhi and in prosecution of which the said Sakal Manjhi was murdered on 3-11-70 at 11 p.m. in village Lodipur within Ghoshi Police Station of Gaya (now Jehanabad) District. Appellants Ram Lakhan Singh, Shyamdeo Singh, Sarju Singh, Amerika Singh, Awadh Kishore Singh and Ugrah Singh have also been convicted u/s 147 of the Penal Code and sentenced to rigorous imprisonment for two years. Appellants Awadhesh Singh, Ramjit Singh, Balmiki Singh, Baleshwar Singh, Pundeo Singh, Naresh Singh, Awadh Singh and Baudhi Dusadh have also been convicted u/s 148 of the Penal Code and sentenced to rigorous imprisonment for 3 years. Appellant Shyamdeo Singh has further been convicted u/s 323 of the Penal Code and sentenced to rigorous imprisonment for 3 months.

The two appellants of Criminal Appeal No. 175 of 1986 have also been convicted u/s 302/149 of the Penal Code and sentenced to imprisonment for life for being the members of same unlawful assembly. Appellant Ramrup Singh has further been convicted u/s 147 of the Penal Code and sentenced to rigorous imprisonment for 2 years. Appellant Tapashwar Singh has further been convicted under Sections 148 and 324 of the Penal Code and sentenced to rigorous imprisonment for 3 years on both counts. He has also been convicted under Sections 25 and 27 of the Arms Act and sentenced to rigorous imprisonment for 3 years and 7 years, respectively.

The sole appellant of Criminal Appeal No. 190 of 1986 Sudama Singh has been convicted u/s 302 of the Penal Code simpliciter and sentenced to rigorous imprisonment for life. He has also been convicted u/s 148 of the Penal Code and Sections 25(a) and 27 of the Arms Act. While for the offence u/s 148 he has been sentenced to rigorous imprisonment for 3 years, for the offence under the Arms Act he has been sentenced to rigorous imprisonment for 3 years and 7 years, respectively.

The prosecution case may briefly be stated as follows. Informant Parmeshwar Manjhi and other Manjhis of village Lodipur had constructed huts over piece of land which was part of the bed of river Bhutahi situated at the distance of about 100 yards North of the Village and were residing therein with their families. This had led to dispute between the Manjhis of the village on the one hand and the appellants and some others on the other. A proceeding u/s 144 of the Code of Criminal Procedure in respect of the land was pending in the Court of Sub-divisional Magistrate, Jehanabad in which the Manjhis were the 2nd party. On 4-11-1970 a Pleader Commissioner was to visit the place to find out the existence of huts over the disputed l and. In the night of 3-11-1970 while members of the prosecution party i.e. Manjhis were sleeping in the huts, at about 11 p.m. when P.W. 4 Dhurbichh awoke to answer the call of nature he heard some humming sound. He awakened others. They collected at one place. They suspected that persons might have come to remove the huts as a Pleader Commissioner was to come to inspect the land on the next day. At that point of time several persons appeared. Appellant Ram Lakhan Singh commanded them to set the huts on fire. Appellants Awadhesh Singh and one Sidheshwar Singh and Ramdeo Singh moved forward. Three of them set the huts of P.W. 4 Dhurbichh Manjhi, P.W. 7 Budhu Manjhi and one Bengali Manjhi and Bideshi Manjhi to fire. In the light of fire the informant and others identified the rest of the appellants. It is said that appellants Sudama Singh and Tapeshwar Singh were armed with country made guns, Sidheshwar Singh was armed with Farsa, Balmiki Singh, Awadhesh Singh and Awadh Singh were armed with garasa, Ramdeo Singh and Naresh Singh were armed with bhala, Budeshwar Singh, Ramjit Singh and Baudhi Dusadh were armed with saif. Rest of the appellants, except Ramrup Singh who was unarmed, were carrying lathi When the Manjhi protested against the action of the appellants, appellant Ramrup Singh gave an order for opening fire. Thereupon appellant Sudama Singh fired a shot from his gun which hit Sakal Manjhi. He fell down and later succumbed to gun shot injuries. Appellant Tapeshwar Singh also fired shot from his gun which hit P.W. 8 Parmeshwar Manjhi (Informant). Appellant Shyamdeo Singh struck P.W. 4 Dhurbichh Manjhi with lathi On alarm several villagers came to the place where after the appellants fled away. On account of the aforesaid acts of arson, 4 huts were burnt to ashes.

On the basis of the above mentioned Fardbeyan lodged by P.W. 8 Parmeshwar Manjhi at Ghoshi Police Station in the same night at 3 a.m., Ghoshi P.S. Case No. 4 (11) 70 was registered. On completion of the investigation police submitted charge-sheet against the appellants and after usual commitment in course of time they were put on trial.

At the trial the prosecution examined altogether 13 witnesses, out of whom P.W. 2 Mahendra Ram, P.W. 3 Ram Jatan Singh and P.W. 11 Abhiram Singh are hearsay witnesses who stated to have reached the place of occurrence after the incident. P.W. 1 Babu Chand and P.W. 4 Dhurbichh Manjhi, P.W. 5 Ghujan Ram and P.W. 6 Chhotu Manjhi, P.W. 7 Budhu Manjhi, P.W. 8 Parmeshwar Manjhi (informant) and P. W. 9 Karu Ram are said to be the eye-witnesses, out of whom P.W. 4 and P.W. 8 are said to have sustained injuries in the occurrence, as indicated above. P.W. 10 Bhattu Manjhi was tendered. I.O. Ram Lakhan Prasad was examined as P.W. 12. The doctor who performed autopsy on the dead body of the deceased Sakal Manjhi and examined the injuries on the persons of P.W. 4 and P.W. 8 was not examined in Court. The post-mortem report as proved by P.W. 13.

The appellants examined two witnesses, one of them namely, Ramrup Sharma is appellant No. 1 of Cr. Appeal No. 175 of 1986, as D.W. 1 and Ambuj Pd. Singh as D.W. 2 in their defence. Their defence, shortly stated, is that the disputed land-which appertained to Plot Nos. 1 and 1/595 of Khata No. 96 of village Lodipur was gairmazrua malik land. The ancestors of the appellants had taken settlement of the fend from the ex-landlord Rai Bageshwari Pd. of Gaya in the year 1944 and since then they are in possession thereof. They, at the first instance, paid rent to the ex-landlord and, after vesting of the estates, to the State of Bihar on the basis of the return filed by the ex-landlord and the jamabandi fixed by the State authorities. Later, a proceeding u/s 4(h) of the Bihar Land Reforms Act was initiated for annulment of the settlement and the matter was pending before the Divisional Commissioner. On the instigation of some co-villagers who were inimical to them, however, the Manjhis of the village started laying claim'' over the land which led to a proceeding u/s 144, Cr. P.C. in connection with which the Pleader Commissioner was armed to make local inspection on 4-11-1970.

It may be stated here that on the basis of evidence on record the trial Court accepted the arguments put forward on behalf of the appellants that if the object of the unlawful assembly was to set the huts to fire in order to remove the evidence of possession of the Manjhis, in the event of the huts being set ablaze, the Pleader Commissioner would have found ashes lying at the place which could have been the sufficient proof of the fact that some huts were there and that they had been burnt during the preceding night and, thus, disbelieved the story that the appellants had set the huts to fire. The trial Court has observed:

To me it appears that the accused persons had gone there to remove the huts from the disputed land so that when the Commissioner visited to see the spot next day he would have found none...

It appears that when the accused persons tried to pull down and remove the huts of the Manjhis, the latter either protested or put obstruction and thereupon shots were fired hitting two persons and lathi was brandished hitting Dhurbichh Manjhi. It might be that thereafter the Manjhis themselves set fire to the huts, to aggravate the offense of the accused persons and give it a colour of atrocities to Harijans.

The trial Court accordingly held that charge u/s 436, which had also been framed against the concerned appellants, was not proved and acquitted them of the same.

Mr. Shakeel Ahmad Khan, learned Counsel for the appellants, submitted that having disbelieved the genesis of the occurrence, the trial Court should have rejected the entire case as being doubtful. He contended that the genesis of the alleged occurrence i.e. setting the huts on fire was integral part of the prosecution case. He submitted that if there was no attempt on the part of the appellants to set the huts on fire and if, in fact, as concluded by the trial Court, the act (of setting the huts on fire) was done by the members of the prosecution party themselves, assault could not have ensued because, as per the prosecution case, the appellants had come to set the huts on fire which the members of the prosecution party protested, which led to the assault. Counsel contended that the trial Court has made out a third case to convict the appellants. Mr. Khan also contended that if the huts had been set to fire by the members of the prosecution party themselves after the assault was over, as observed by the trial Court, the witnesses could not have identified the appellants and hence the prosecution case regarding identification of the appellants at the place of occurrence in the light of fire should also be rejected.

On perusal of the documents produced on behalf of the appellants, I feel satisfied that they have a strong, prima facie, case on the point of possession of the land in question. The very fact that the authorities of the State initiated a proceeding for annulment of the settlement made in favour of their ancestors indicates that settlement did exist in their favour. u/s 4(h) of the Bihar Land Reforms Act, settlement or lease made by an ex-intermediary after 1-1-1946 can be annulled on the ground that the same was made with the object of defeating any provision of the Act or causing loss to the State or obtaining higher compensation. Whatever be the nature and effect of the settlement within the parameters laid down u/s 4(h) of the said Act, the factum of settlement cannot be doubted, for if there was no settlement, in fact, there was or is nothing to be annulled. Besides, the appellants had been paying rent to the ex-landlord at the first instance and, thereafter, to the State of Bihar. In these circumstances, even if it be accepted that the Manjhis i.e. the members of the prosecution party had put up huts on the land, their act could not but be forcible and illegal and would not create any right, in law, in their favour. These observations, I must clarify, have been made for the purpose of these appeals and would not be construed as conculded opinion of this Court on the merit of the inter se claim of the parties.

It is pertinent to mention here that the Investigating Officer did not find any sign of living in the huts. If the Manjhis had been living in the huts along with their families, as asserted by them, among other things, they would have been running their kitchen therein. But no evidence of that kind was found which gives the impression that they had put up the huts very recently resulting in initiation of proceeding u/s 144 of the Code of Criminal Procedure. The witnesses, in fact, admitted that they had their houses in the village. It would not be out of place to mention in this connection that in paragraph 14 of his evidence the informant P.W. 8 denied to have filed any affidavit in a proceeding u/s 145, Cr. P.C., after occurrence in question, admitting that the huts never stood on the land but the same stands falsified by the said affidavit brought on record by the appellants as Ext. C. All this makes the claim of possession of the Manjhis and existence of their huts on the land doubtful.

The manner of occurrence as alleged by the prosecution also appears to be doubtful. I find substance in the submission of the Counsel that if, as pet the prosecution case, the act of setting the huts to fire led to the protest by the Manjhis which ultimately led to the assault on them by the appellants, once the act of setting the huts to fire by the appellants is disbelieved, as already held by the trial Court, the genesis of the occurrence becomes doubtful. If the huts were not set to fire by the appellants, there was no occasion for the Manjhis to protest and, therefore, perhaps, there was no occasion for the appellants to assault them, as per the prosecution case. The prosecution is required to prove its case as presented before the Court beyond all reasonable doubts. The Court is not supposed to make innovations to add or substract any part of the case. It is, therefore, not possible to hold, as done by the trial Court in the present case that the appellants had come to simply remove the huts and when the Manjhis protested, they assaulted them. The Manjhis later themselves set some of huts on fire. The prosecution evidence is that the gun shots were fired while the Manjhis were trying to put out the fire by throwing water etc. If there was no fire then, the story of assault in the manner alleged cannot be accepted.

I also find substance in the submission that if the huts had been set on fire by the Manjhis themselves, after the assault was over and the culprits had left the place, as held by the trial Court, in the absence of any other means of identification except light of fire, the identification of the appellants at the time and place of occurrence becomes doubtful.

Counsel referred to certain other discrepancies in the prosecution case. He pointed out according to P.W. 1 Babu Chand deceased Sakal Manjhi was taken to the hut of P.W. 2 Mahendra Ram, P.W. 2 stated that Sakal Manjhi was taken to the Police Station after the incident. P.W. 3 Ram Jatan Singh in his evidence stated that Sakal was taken to the hut of P.W. 9 Karu Ram. P.W. 9 however did not say that Sakal was taken to his hut. He rather also said that Sakal was taken to the Police Station.

Counsel also submitted that the non-examination of the doctor, who hold post-mortem on the dead-body of the deceased Sakal Manjhi or the doctor who examined the injuries of P.W. 4 Dhurbichh Manjhi and P.W. 8 Parmeshwar Manjhi (informant), has left a lacuna in the prosecution case, In any view, he contended, in the absence of any injury report with respect to P.W. 4 and P.W. 8 and examination of the doctor, there is no medical evidence that they also sustained injuries in course of occurrence. The documents brought on record in this connection, it was pointed out, are the requisitions made by the I.O. (Ext. 2 with respect to P.W. 8 and Ext. 2/1 with respect to P.W. 4) for the examination of their injuries by the doctor.

The prosecution witnesses are vitally interested in the outcome of the prosecution case. They also appear to be related to each other including the deceased. In view of the settled legal position their evidence, therefore, has to be considered with due care and caution. In view of the improbabilities in the prosecution case, as briefly indicated above, it is doubtful that the occurrence took place in the manner alleged. In the circumstances, I am of the opinion that the appellants are entitled to benefit of doubt.

The conviction and sentence awarded to the appellants under the impugned judgment and order are accordingly set aside and they are acquitted of the charges. The appellants are on bail. Their liability under the bail bonds stands discharged.

The appeals are allowed accordingly.

P.K. Sarin, J.

I agree.