Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Appeal (DB) No.278 of 1990 =========================================================== 1. Punya Deo Singh son of Ram Surat Singh, 2. Shambhu Prasad Singh son of Ram Surat Singh, 3. Jagdish Singh son of Ram Surat Singh, 4. Bishwanath Singh son of Ram Surat Singh, all of village-Chaita, P.S. Pakri Dayal, Distt-East Champaran. 5. Hira Manjhi son of Raghunandan Manjhi, 6. Chonha Manjhi son of Bhaga Manji, both residents of village-Pakri Dayal Tola- Parsauni, P.S. Pakri Dayal, Distt- East Champaran Versus .... .... Appellant/s The State of Bihar .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mrs. Archana Sinha, Amicu Curiae For the State : Mr. Ajay Mishra, APP For the Informant : Mr. Umesh Kr. Singh, Adv. =========================================================== CORAM: HONOURABLE MR. JUSTICE SHYAM KISHORE SHARMA and HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI CAV JUDGMENT (Per: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI) Date: 19-03-2013 Appellant Chonha Manjhi has been found guilty for an offence punishable under Section 147 of the IPC and sentenced to undergo R.I. for two years, while appellants Punya Deo Singh, Shambhu Prasad Singh, Jagdish Singh, Bishwanath Singh, Hira Manjhi have been found guilty for an offence punishable under Sections 302/149, 148 of the IPC and directed to undergo R.I. for life under Section 302/149. Appellants Punya Deo Singh, Shambhu Prasad Singh, Bishwanath Singh, Hira Manjhi have been convicted for an offence punishable under Section 302 IPC alternatively and 2 they have been sentenced to undergo R.I. for life as well as to pay fine of Rs. 5,000/- each and in default thereof to undergo further R.I. for two years each. They have also been directed to undergo R.I. for three years under Section 148 of the IPC. Appellants Punya Deo Singh, Shambhu Prasad Singh have also been held guilty for an offence punishable under Sections 324 of the IPC and directed each of them to undergo R.I. for three years with a direction to run the sentences concurrently by 1st Additional District & Sessions Judge, East Champaran at Motihari vide judgment dated 12.07.1990 passed in Sessions Trial No. 30/1977. 2. Fulgen Singh, PW-3 gave his Fardbeyan (Ext-10) on 30.08.1976 at 9:00 A.M. before the O/C Pakri Dayal P.S. in injured condition while he was admitted at Primary Health Centre, Pakri Dayal alleging inter alia that on the same day at about 7:00/8:00 A.M. while he was engaged in cutting bamboo from bamboo cluster lying east to his village by Lakshman Hajra, his labour, Punya Deo Singh Singh armed with Bhala, Shambhu Prasad Singh armed with Garasa, Bishwanath Singh armed with Bhala, Jagdish Singh aremed with Bhala, Hira Manjhi armed with Garasa, Chonha Manjhi armed with Lathi, Lal Babu Singh (since acquitted) armed with Bhala came and forbade him (PW-3) from cutting bamboo which was retaliated by him claiming the same to be his own resulting verbal duel amongst 3 them. During midst thereof, his brother Joginder Singh and Chandrika Singh arrived. No sooner than their arrival, Punya Deo Singh by means of Bhala and Shambhu Prasad Singh by Garasa inflicted injuries over Joginder Singh, respectively, on account of which he fell down. Side by side Shambhu Pd. Singh, Bishwanath Singh and Hira Manjhi brutally assaulted Chandrika Singh who also fell down. Both of them died instantaneously on the spot itself. Thereafter, Punya Deo Singh, Shambhu Prasad Singh assaulted him with Garasa and Bhala respectively. Lal Babu Singh had also pierced Bhala below the chest. Then it has been narrated that the aforesaid land was purchased from Most. Champa Kuer. Mahendra Rai, Surajdeo Singh, Brijnandan Thakur along with others were cited as witnesses who had seen the occurrence. 3. After registering case as Pakri Dayal P.S. Case No. 9/76 the investigation commenced and concluded by way of submission of charge-sheet whereupon the appellants including Lal Babu Singh (since acquitted) faced trial which concluded in a manner challenged under instant appeal. 4. The defence case as is evident from mode of cross- examination as well as statement recorded under Section 313 Cr.P.C. is that the land under dispute belongs to them on account of sale-deed executed by Overseer Singh who happens to be nephew of Most. 4 Champa Kuer w/o Kailash Singh in whose favour Most. Champa Kuer had executed deed of gift. On the alleged date and time of occurrence, the prosecution party being variously armed made criminal trespass and forcibly began to cut bamboos which was resisted and on account thereof, the appellants were brutally assaulted by the prosecution party causing severe injury upon their persons for which Pakri Dayal P.S. Case No. 10/76 was registered while they were admitted at Primary Health Centre, Pakri Dayal. It has also been pleaded that to save their lives, the appellants had brandished their weapon which might have caused injuries upon the person of deceased and accordingly, would have resulted in death of members of prosecution party who were aggressors. To support the same, oral as well as documentary evidence have been adduced. 5. During course of assailing the judgment impugned, it has
Facts
been submitted on behalf of the appellants that the learned trial court had basically erred in not following the principle while adjudicating upon factum of case and counter case. To buttress the argument on this point, It has been submitted that after going through Fardbeyan of case and counter case, it is evident that P.O. is admitted one and in likewise manner presence of injuries over the respective parties. It is also admitted fact that none of the parties is the recorded tenant with regard to the land under dispute which admittedly belonged to Most. 5 Champa Kuer. It has also been admitted by the prosecution party that Most. Champa Kuer was issueless and that being so, she had gifted the property to his nephew Overseer Singh from whom the appellants had purchased. Contrary to it, it has been pleaded by the prosecution party that the aforesaid deed of gift executed by Most. Champa Kuer in favour of Overseer Singh was revoked at the behest of Most. Champa Kuer who subsequently transferred the land in favour of prosecution party. It goes without saying that once document is validly executed in favour of a particular person, its recognition remains alive till the date on which the same is nullified by a decree passed by a competent court. Admittedly, no suit was filed for cancellation of deed of gift. Therefore, the document of revocation followed with execution of subsequent document in favour of prosecution party by Most. Champa Kuer was not at all legally permissible nor was the prosecution party legally entitled to dispossess the appellants from the land under dispute. 6. At this juncture, the learned counsel for the appellants drew our attention towards the finding recorded by the learned trial court that in case of Pardanasheen lady the onus is upon adversary to prove that no fraud was played was nothing but own illusion of the learned trial court because of the fact that the present litigation does not belong to a civil proceeding nor the document in question was 6 under adjudication nay the criminal court is found competent to give any finding with regard thereto. Therefore, the finding recorded under para-20 of the judgment was not at all permissible side by side is tenable for the present purpose. For the present, apart from prima facie, inference with regard to document in question possessed by both the sides, possession appears to be the moot question which should be taken to be decided as prime issue and in the aforesaid background one could infer the status of the party and identify them which one happens to be aggressor. 7. After going through the evidence of different witnesses including that of prosecution as well as defence comprising of oral as well as documentary one, it has been submitted that there is conclusive evidence on the record showing the land under dispute to be under exclusive possession of appellants and on account thereof, they had properly exercised their right of private defence because of the fact that prosecution party have intruded thereupon having variously armed with deadly weapon. 8. It has further been submitted that from the evidence as well as from the exhibit apart from admission on the part of doctor as well as investigating authority that appellants have also sustained severe grievous injury and for that a counter case bearing Pakri Dayal P.S. Case No. 10/76 was registered. Then, in that event, it was 7 incumbent upon the prosecution to have injuries over the person of appellants properly explained. Having failed on that very score suggests dubious character of the prosecution by suppressing the true version of the genesis as well as manner of occurrence. 9. It has also been submitted that that there is inconsistency as well as variations on material point amongst the evidence of the PWs. In likewise manner, there is also visibility of material contradiction as well as embellishment in the evidence of PW-8 which found approved by the investigating authority. 10. Not only this, from the evidence of the P-8s, it is crystal clear that they have not been able to substantiate the actual place of occurrence as well as they are also found to be infirm with regard to manner of occurrence. 11. In likewise manner, it has also been submitted that after going through the medical evidence, it is evident that the same totally improbabilizes the prosecution narration so far manner of assault is concerned and the cumulative effect on account of aforesaid infirmities as well as deficiencies persisting in the prosecution case, the finding recorded by the learned trial court is not at all found to be properly supported with. 12. Counter meeting with the submission raised on behalf of the appellants, it has been submitted on behalf of the APP that in 8 each and every case prosecution is not at all burdened with an obligation to explain injuries sustained by the accused persons, for
Legal Reasoning
that, it has been submitted that, prima facie, material is expected at the end of accused to substantiate its plea that during course of same occurrence they have sustained injuries. In likewise manner, It has also been submitted that presence of informant at the place of occurrence during course of commission of crime as already been admitted by the appellants themselves arraying him as an accused in counter case as well as his status that of injured one. Therefore, the evidence of injured is to be treated in a manner having higher pedestal than normal one and so after going through the same it is evident that occurrence in its full detail has been narrated supported with an objective finding of the investigating authority. The conduct of appellants is also found to be doubtful when it had tried to malign the I.O. by suggesting that bamboo was being cut for his (police official) personal use. 13. It has further been submitted that a criminal court is not expected to decide right to possess rather has to see as to who is in actual physical possession because of the fact that even a trespasser can not be removed by the process of force rather he has to be removed through process of law. From the oral evidence as well as documentary one, the prosecution has been able to substantiate its 9 plea with regard to possession over the P.O. land and then in that event, the appellants happen to be aggressors and so rightly have been convicted in the background of the fact that the case of the prosecution is found to be fully substantiated by oral as well as documentary evidence. 14. In order to substantiate its case the prosecution has examined altogether nine PWs out of whom PW-1 is Surajdeo Singh, PW-2 is Mahendra Rai, PW-3 is Fulgen Singh, PW-4 is Brijnandan Thakur, PW-5 is Dr. Satyadeo Sharma (wrongly mentioned as PW- 4A), PW-6 is Narendra Mohan Singh (wrongly mentioned as PW-5), PW-7 is Dr. Hari Kishore Pd. Verma (wrongly mentioned as PW-6), PW-8 is Ramchandra Kuer (wrongly mentioned as PW-7) and PW-9 is Raj Ballabh Singh (wrongly mentioned as PW-8) as well as has also exhibited Ext-1 Signature of Fulgen Singh on Fardbeyan, Ext-1/1 to 1/2 signature of witnesses on the inquest report, Ext-1/3 to 1/7 signature of witnesses, Ext-2 C.C. of order-sheet dated 26.06.81 of Anchal Adhikari, Pakri Dayal in Mutation case no. 53 of 1979-80, Ext-3 C.C. of order-sheet of Pakri Dayal in Mutation case no. 9 of 1976-77, Ext-4 Correction slip in D.O., Ext-3/1 C.C. of order-sheet of Pakri Dayal in Mutation case no. 10 of 1976-77, Ext-4/1 Correction slip in D.O., Ext-5 Original sale deed dated 13.02.76 executed by Most. Champa Kuer in favour of Babu Rajan Kumar Singh, Ext-6 10 Original deed of gift dated 13.02.76 executed by Most. Champa Kuer in favour of Fulgen and Smt. Shail Devi, Ext-7 Original deed of cancellation dated 12.2.76 executed by Most. Champa Kuer in favour of Sri Osiar Singh, Ext-8 injury report of Fulgen Singh, Ext-9 Postmortem report of Chandrika Singh, Ext-9/1 Postmortem report of Yogendra Singh, Ext-1/8 to 1/9 signature of Ram Chandra Kuar and Ram Bhaskar, Ext-10, Fardbeyan, Ext-11 First Information Report, Ext-12 Inquest Report. 15. The defence had also examined altogether 8 DWs including appellants themselves availing the privilege prescribed under Section-315 of the Cr.P.C. DW-1 Lalan Prasad, DW-2 Ashok Kumar, DW-3 Wasi Mohammad Jan, DW-4 Bishundeo Narain, DW-5 Punyadeo Singh, DW-6 Sheo Bhushan Mani Tripathi, DW-7 Shambhu Prasad Singh and DW-8 Rajendra Rai as well as also exhibited Ext-A injury report of Bishwanath Singh, Ext-A/a injury report of Punya Deo Singh, Ext-B forwarding letter, Ext-C O.D. slip, Ext-D Requisition sent by M.O. Pakri Dayal, Ext-E, Bed head ticket of Punya Deo Singh, Ext-F C.C of sale deed executed by Chandrika Singh in favour of Jagdish Singh, Ext-G Two photographs, Ext-H expert report, Ext-I complaint petition, Ext-J Mahadnama, Ext-F/1 sale deed dated 5.7.76 executed by Overseer Singh in favour of Shambh Prasad Singh, Ext-K Destruction report on the requisition 11 no.8 dated 22.6.87, Ext-N deed dated 27.06.70, Ext-F/2 sale deed executed by Shambhu Pd. Singh in favour of Punya Deo Singh, Ext- F/3 sale deed executed by Chandrika Singh in favour of Arvind Sah, Ext-O injury report of Punya Deo Singh, Ext-O/1 Injury report of Bish Nath Singh. 16. Before coming to ocular evidence, medical report has to be seen. PW-7, Dr. Hari Kishore Pd. Verma (wrongly mentioned as PW-6) had conducted postmortem over the dead body of both the deceased, Yogendra Singh and Chandrika Singh respectively on 31.08.76 at 9:30 A.M. and 10:00 A.M. which are as follows:- A. Yogendra Singh:- (i) (ii) (iii) (iv) (v) (vi) the right right injury on Penetrating chest (punctured) 2”x 1” x 6” causing laceration of lungs and upper half with the haemorrhage plural cavity, about a liter blood was fused. Puncture wound on the left side abdomen 2” x ¼”. The puncture wound on the left side of chest 1” x ¼”. Punctured wound on the left upper chest 1 ½”x ¼”. Incised wound on the left arm 6” x1 ½”. Punctured wound on the back of the abdomen on lumber region 4” x ¾”. The doctor had opined that injury no.5 was caused by sharp cutting weapon while rest of the injuries by sharp pointed weapon and that amongst the injuries, the injury no.1 was grievous. The doctor 12 had further opined that death was due to haemorrhage and shock resulting from above ante-mortem injuries and described the age of injuries 48 hours since death. He further stated that on the same day at 9.30 A.M. he had done post-mortem of the dead body of Chandrika Singh and found the following ante-mortem injuries on the dead body:- (i) (ii) (iii) (iv) (v) Lacerated wound 1” x1/2” x ¼” on the vault of the head. Punctured wound on the right side of the neck 4” x ¾” x 5” passing through muscle of neck, large blood vessels on the right side of neck jugular vain and carotid artery and also thyroid gland was lacerated. Incised wound on the back 2” x 1”. Punctured wound on the right flank 1”x ½” Puncture wound on the right back 2” x ¼” on his right leg was slightly congested. The doctor opined that injury no.1 was caused by hard blunt substance, injury no. 2,4 and 5 by sharp pointed weapon like bhala and injury no. 3 by sharp cutting weapon like Garasa. He described injury no.2 grievous and rest of the injuries as simple. In his opinion death was due to haemorrhage and shock resulting from above injuries. The time of death described is within 48 hours since death. The doctor proved his postmortem examination reports marked as Ext-9 and 9/A. 17. During cross-examination PW-7, stated that injury no.1 13 on the body of Yogendra Singh and injury no.2 on the body of Chandrika Singh are such in nature which could have caused instantaneous death. Furthermore, he had exhibited the bed head ticket of appellant/accused Punya Deo Singh who was referred from Motihari Jail and accordingly, was admitted on 25.09.76 and was operated upon for intestinal obstruction on 28.09.76. Three wholes were found in the intestine which were stitched and plucked. The injuries were about 28 days old which might have been caused by Bhala and were found to be grievous and dangerous. It has further been opined that edged portion of Bhala, in case, grazed over skin will cause injury like sharp cutting. 18. From cross examination of this PW it is evident that the defence had not been able to demolish his evidence so far nature of ante-mortem injuries are concerned as well as with regard to the cause of death which was found in ordinary course of nature to cause death. Side by side, it is also apparent from the evidence of this PW that he had operated appellant Punya Deo Singh for the injuries, which in his opinion was caused by „Bhala‟ having 28 days before. He had further opined the injury to be grievous as well as dangerous to life. 19. PW-5, Dr. Satyadeo Sharma (wrongly mentioned as PW-4A) had examined injured/informant, Fulgen Singh on 30.08.76 14 at 9:45 A.M. and found the following injuries over his person:- (i) (ii) (iii) (iv) (v) (vi) (vii) One incised wound 1 ½” x ½” x 4 over the outer part of left upper arm 2” above after elbow line. One incised wound 5” x 4” x 5” over the back of the right side of the chest 1” below right shoulder. One scratch 4 ½” x 1/5” over the left shoulder. One incised wound ½” x 1/3”x 1/5” over the outer part of the left upper arm 2” below left shoulder joint. One incised wound 1”x 1/5”x1/5” over the left ear. On incised wound 1”x ¼” x 1/5” over the lower part of the left side of chest 3” below left nipple. One scratch 5”x1/5” over the lateral part and back of left leg 2 ½” below left knee joint. The doctor opined that all the injuries except injuries no. 3 and 7 were caused by sharp cutting weapons, by Garasa and Bhala. Injuries No.3 and 7 were scratches. The doctor proved his report and marked as Ext-8. 20. During cross-examination, the doctor (PW-5) had stated that no penetrating injury was found over the person of injured. He had also exhibited the injury report of appellant, Bishwanath Singh whom he had examined on the same day at about 10:25 A.M., Punya Deo Singh whom he examined on the same day at about 10:05 A.M. which are as follows respectively:- (A) Bishwanath Singh:- (i) (ii) Incised wound 3 ½”x ¼”x 1/5” over left side of scalp 4” inside left ear. Incised wound 2”x1/2”x1/3” one outer side of right upper arm 3 ½” about right elbow joint. The doctor (PW-5) opined with regard to the injuries of 15 Bishwanath Singh that the injuries having been caused by sharp cutting weapon such as Pharsa, bhala or Garasa. (B) Punya Deo Singh:- (i) Incised wound 2”x ¼”x 1/3” on right side of scalp 1” above for head. Incised wound 1 ½” x ¼” x 1” on front of abdoment 1” away from unsilical. Incised wound 3” x1/2”x1” transversely over upper part of buttock on right side 1 1/2”x away from the midline. (ii) (iii) (iv) Bruise 3”x2” over back of left side of chest. The doctor with regard to injury of Punya Deo Singh opined that all were simple caused by sharp cutting weapon except injury no.4 which was caused by hard blunt substance. Furthermore, from the evidence of this PW, it is evident that both the injured were arrested by the police in the hospital itself. Hence, presence of both the appellants at hospital in injured condition is apparent to some extent. 21. PW-1, Surajdeo Singh had deposed that he had gone to see his field lying east to the village where he found Fulgen Singh engaged in cutting bamboo from bamboo cluster through his labourer, Laxman Hajra. The aforesaid land was coming under the possession of Fulgen Singh for the last 5 or 6 months and before that it was under Most. Champa Kuer who used to cut bamboo from there in usual manner. While bamboo was being cut, all of a sudden, Punya Deo Singh, Shambhu Prasad Singh, Jagdish Singh, Bishwanath Singh, Hira Manjhi and Chonha Manjha along with others came whose name he could not recollect. Punya Deo Singh was armed with Bhala, 16 Shambhu Prasad Singh was armed with Garasa, Jagdish Singh with Bhala, Bishwanath Singh with Bhala, Hira Manjhi with Garasa and Chonha Manjhi with Lathi came and inquired as to why the bamboos were being cut over which Fulgen Singh answered that the same belonged to him, therefore, he was cutting the bamboos. While verbal duel was going on, Chandrika Singh and Yogendra Singh arrived, who were full brothers, and asked Punya Deo Singh as to why he was protesting, over which Punya Deo Singh, Shambhu Pd. Singh, Hira Manjhi, Jagdish Singh attacked upon them (Chandrika Singh and Yogendra Singh) with their weapons. Chandrika was assaulted by Shambhu with Garasa, Bishwanath with Bhala, Jagdish with Bhala, Hira Manjhi with Garasa and on account thereof Chandrika fell down and died instantaneously. Yogendra Singh was assaulted by Punya Deo Singh with Bhala, Bishwanath Singh with Garasa, by Jagdish Singh with Bhala who also fell down and died. Punya Deo Singh by Bhala, Shambhu Singh by Garasa and Chonha Manjhi by Lathi had assaulted Fulgen Singh on account of which he sustained injury and fell down. Mahendra Ram had also witnessed the occurrence. During course of cross-examination, he had stated that his land was 1 ½ to 2 Bigha away from the P.O. land at north-east direction. In para-2 of his cross-examination, he has disclosed that both the parties are Pattidars. He had given boundary of P.O. land, north-Jamuna Singh, south-Sri 17 Narayan Singh, east- Niz, west- Ravindra Singh. At para-3 he had disclosed that Fulgen Singh (prosecution party) was one pattidar, Champa Kuer another pattidar and Punya Deo Singh (accused person) is third pattidar having their separate house, darwaja having partitioned by metes and bounds. Then had disclosed that Chandrika Singh, Yogendra Singh (both deceased) along with Fulgen (informant) was in jointness. He was not aware as to how the P.O. land was acquired by the prosecution party. Then had disclosed that Chandrika Singh, Yogendra Singh (both deceased) used to look after the affairs of Most. Champa Kuer. He had not seen Overseer Singh, nephew of Most. Champa Kuer over the land. He shown his ignorance with regard to any deed of gift executed by Most. Champa Kuer in favour of Overseer Singh. At para-5, he had disclosed that he had gone to P.O. land after hearing altercation in between Fulgen and Shambhu which continued even after his arrival. Accused persons were saying that Banswari belonged to them, therefore, bamboo should not be cut. On the other hand, Fulgen was saying that Banswari belonged to him, therefore, he will cut. Altercation was going on in the midst of field. Rest accused persons had surrounded from all around. The accused persons had not snatched axe from Laxman Hajara. That axe was not handed over to the police. About 4- 5 bamboos were cut. While altercation was going on, Chandrika and 18 Yogendra came and went near Fulgen. After arrival of Chandrika and Yogendra occurrence took place. Both the deceased fell down at the place where they had sustained injury. Maar-peet began near the ridge and ended in the field of Ravindra Singh. At para-6, had stated that he had not seen Fulgen, Chandrika and Yogendra variously armed with during course of occurrence. Swaroop Rai was not present there. He had not seen injury over the person of Punya Deo and Bishwanth caused by Farsa and Bhala. Then had denied the suggestion that Punya Deo Singh had sustained injury over his back as well as buttock by means of Farsa and Bhala. He had not seen injury over the stomach of Punya Deo Singh caused by Bhala. Then had denied that it is not a fact that during course of commission of occurrence, Fulgen was armed with Bhala, Chandrika and Yogendra were armed with Farsa. Laxman Hajra is now dead. He along with Mahendra were only present. They had not tried to pacify. On account of repeated blow, he was unable to say the exact number of blow given over the person of individual injured. Then at para-7 had disclosed that no altercation had taken place at an earlier occasion with regard to Banswari. Then had disclosed that Fulgen fell down in the field of Ravindra Singh 5 Lagga away from Yogendra. Then had disclosed that first of all Chandrika was assaulted followed by Yogendra lastly by Fulgen Singh. However, all the three were assaulted in same sequence. Maar- 19 peet was effected at the side of accused persons only. None of the members of the prosecution party had assaulted the accused persons. Darogaji arrived at 11:00 a.m.. Before that no other police personnel had arrived at the place of occurrence. The accused persons took away their weapons during course of fleeing away from the place of occurrence. At para-9 had stated that he had not seen Farsa near the place where dead bodies of Yogendra and Chandrika were lying. Fulgen Singh, after sustaining injuries, fell down and thereafter ran towards his house. Accused persons fled away towards western direction. The blood was coming out from the injury of Fulgen. Fulgen had fallen in the paddy field. He along Mahendra took Darogaji to the place of occurrence. Blood had fallen down at the place where Fulgen had fallen. In para-10 had stated that Chandrika and others had sustained injury 3-4 Lagga west to Banswari. He had further stated that Fulgen, Mahendra and Laxman were present when Daroga came. They were not arrested by the police. Then had denied the suggestion that as he was relative of Fulgen, hence he had deposed against the accused. 22. PW-2 Mahendra Rai had stated that on the alleged date and time of occurrence while he had gone to see his field lying 1 Bigha west to P.O. land, he saw Fulgen getting the bamboo cut by Laxman Hajra. That bamboo cluster belonged to Fulgen and was 20 under his possession. At that very moment, Shambhu Prasad Singh armed with Garasa, Jagdish Singh with Bhala, Punya Deo with Bhala, Bishwanath Singh with Bhala, Hira Manjhi with Garasa and Chonha Manjhi with Lathi came and out of them Shambhu had forbidden to cut bamboo and on account thereof an altercation took place. During midst thereof, Yogendra and Chandrika came who said that as the bamboo cluster belonged to them, therefore, they should not interfere. Shambhu Pd. Singh gave Garasa blow over Chandrika Singh while Bishwanth and Jagdish gave Bhala blow. Hira Manjhi also assaulted with Garasa. Chandrika Singh fell down. Thereafter, Shambhu Pd. Singh assaulted Yogendra with Garasa, Punya Deo Singh with Bhala, Jagdish with Bhala on account of which Yogendra also fell down. Fulgen was also assaulted by Shambhu with Garasa, Punya Deo with Bhala and Chonha with Lathi. He also fell down. Maar-peet began from Banswari and continued up to the field of Ravindra Singh and on account thereof all the injured fell down in the field of Ravindra Singh. Yogendra and Chandrika succumbed to their injuries while Fulgen, anyhow, escaped there-from. During cross- examination, he had shown his ignorance whether in a case under Section 145 Cr.P.C. fought in between the parties, he had filed affidavit on behalf of Fulgen Singh. He had further disclosed that none of the witnesses belonged to the Tola of which prosecution and 21 accused belonged to. Then had admitted that he along with Swaroop Rai were accused in counter case. He had shown his ignorance to the fact that Shambhu Pd. Singh had deposed against him in a case in between Bimal Roy and Swaroop Rai wherein he along with uncle Swaroop Rai and Yogendra were accused. He had also shown his ignorance with regard to an informatory petition filed on behalf of Punyadeo Singh against prosecution party including he himself. In para-5, he had admitted that Patlu Singh was cousin brother who died about 4-5 years ago leaving behind his mother and wife. After death of Patlu Singh his affair was looked after by Yogendra and not by Overseer Singh. He had also admitted that he along with Chandrika and Yogenra had deposed in murder case relating to murder of Patlu Singh. At para-6, he had stated that total area of P.O. land is 7-8 Kattha. „Khar‟ is spread over an area of 2 Kattha. He is not aware with the total area of the plot. He also disclosed that Champa Kuer had bequeathed the same land to Yogendra Singh but in which year he cannot say. In para-7 said that an altercation took place in between Fulgen and Punya Deo, Shambhu Singh, when they forbade Fulgen to cut bamboo. Yogendra and Chandrika arrived while altercation was going on. He is not aware of the fact whether anybody had gone to call Yogendra and Chandrika. Just after a minute of their arrival the accused persons began to assault. At that very time, accused persons 22 were in the field of Ravindra Singh lying west to the P.O. land. Laxman Hajra was cutting bamboo. Maar-peet virtually, took place in the field of Ravindra Singh. First of all, Chandrika was assaulted and then Yogendra Singh. All the three Chandrika, Yogendra and Fulgen were empty hand. Then had detailed the manner of occurrence as to how the accused persons had assaulted all the three. Then had disclosed that Fulgen fell down covering an area of 2 and ½ Bigha as he was chased by the accused persons. In whose field he fell down, he is unable to say. Then thereafter, accused persons fled away. He had not seen injury over the person of Punya Deo and Bishwanath. Then he also went from there. He had not gone to hospital to see Fulgen Singh. At para-8 he had disclosed that when Yogendra and Chandrika fell down after sustaining injury, he escaped therefrom. He had not seen assault over Punyadeo Singh. He cannot say the number of blow given over Chandrika and Yogendra but had detailed the place where both of them sustained injury. After having the dead body brought to the darwaja of Yogendra, he had gone to that place. In para-9, he had detailed the event whereunder Fulgen Singh had sustained injury at the hands of accused. In para-10 had said that he is not remembering whether Laxman Hajra took away the axe or threw it. Two or three bamboos were cut before the occurrence. Accused persons also cut away 2-3 bamboos after the occurrence. Then he had denied the 23 suggestion that they after forming unlawful assembly had gone to the P.O. land to dispossess the accused persons wherein they had brutally assaulted. 23. PW-3, Fulgen Singh is informant. He had deposed that on the alleged date and time of occurrence while he was engaged in cutting bamboo through his labourer Laxman Hajra and at that very time, Shambhu Prasad Singh armed with Garasa, Jagdish Singh with Bhala, Punya Deo with Bhala, Bishwanath Singh with Bhala, Hira Manjhi with Garasa and Chonha Manjhi with Lathi, Lal Babu Singh armed with Bhala came and put obstruction in cutting of bamboo. He said that as the bamboo belonged to him, therefore, he will cut the same. During midst thereof, his brothers Yogendra and Chandrika came who also reiterated the same. On account thereof, Shambhu Pd. Singh assaulted Yogendra with Garasa, Punya Deo Singh with Bhala, Jagdish with Bhala on account of which Yogendra also fell down in the field of Ravindra Singh in an injured condition where the accused persons chased him. Chandrika was also assaulted by Bishawanth with Bhala, by Shambhu with Garasa, by Jagdish with Bhala, by Hira with Garasa. He also fell down in the field of Ravindra Singh. Both of them were assaulted in the same sequence and were chased in similar manner. Chandrika and Yogendra died. Shambhu assaulted him with Garasa, Punya Deo with Bhala, Lalbabu with Bhala and Chonha with 24 Lathi. He also rushed and fell down in the field of Jamuna Singh. On hue and cry villagers came seeing whom the accused persons escaped therefrom. Thereafter, he was taken to Pakri Dayal hospital where police had come and taken his statement which he accordingly, exhibited. He was thoroughly medically treated. The aforesaid Banswari belonged to them and was under their peaceful possession. They used to cut bamboo from that plot. Some of the lands they have purchased from Most. Champa Kuer. While some lands had been bequeathed by Champa Kuer. The mutation had already been effected and accordingly, tendered the document. In para-5, 6 of his examination, he had detailed his genealogical table. In para-8 of his cross-examination had stated that additional Collector had set aside the order of Mutation against which they had filed appeal before the Commissioner. In para-9, he had said that by virtue of deed of gift he had possessed 2 Bigha 11 Kattha 4 Dhur of the disputed land while 1 Bigha 7 Kattha 1 Dhur was purchased by him. At para-10 he had stated that he along with Chandrika and others are joint and accordingly, Chandrika had got concern with the land under dispute. Then had shown ignorance with regard to description of the land in their document different with the plot numbers mentioned in the deed of gift having in favour of Overseer Singh. Then had shown his ignorance whether the disputed land was mortgaged in favour of uncle 25 of Ram Balak Singh which was redeemed by Overseer Singh. In para- 11 he had disclosed that rent was paid by him and the rent receipt happens to be in his possession. He had denied the suggestion that they never came over the land. He had further stated that 10 Kattha of land of the disputed plot no. was sold away in favour of Jagdish Sah Sonar before the occurrence and 2 Kattha after the occurrence. The document was executed by him as well as Yogendra Singh. The land is under possession of Jagdish Sah. He had also deposed in para-13 that Chandrika also was in jointness. He shown ignorance that Chandrika Singh had independently sold away land in favour of Jagdish Sah as well as two others. In para-14 had disclosed that his brother deceased Yogendra Singh was a witness over deed of cancellation executed by Champa Kuer in respect of deed of gift. Then had admitted his status as an accused in counter case. In para-17, he had said that he along with Laxman Hajra had gone over the P.O. land for cutting bamboos. He was empty hand as he was not expecting that a dispute will arise in the background of the fact that he was cutting bamboo since before. Then he had denied the suggestion that they had gone duly armed as were knowing that dispute will arise on account of cutting of bamboos. Accused persons arrived near about 20 minutes later. First of all, an altercation took place and during course thereof his brothers Yogendra and Chandrika arrived. No Maar-peet 26 had commenced before their arrival. Accused persons began to assault Yogendra and Chandrika in Banswari itself. He was standing by their side. He further disclosed that his brothers had not inflicted Farsa blow. He had denied the suggestion that they had assaulted Punya Deo Singh and Bishwanath Singh with Farsa. He had further disclosed that blood had oozen out and fell at Banswari but he is not remembering whether it was in the middle portion. In para-18 he had denied the suggestion that deceased had sustained injury in the field of Ravindra Singh. He further disclosed that Chandrika fell down 10 to 12 steps west to Banswari while Yogendra fell down in the field of Ravindra Singh. He had admitted that he had stated before the police that on account of chase by the accused persons both of them fell down in the field. Para-19 is contradiction. Again in para-20, he had denied the suggestion that they had assaulted the accused persons. He had admitted that Punya Deo and Bishwanath after their arrest were brought to hospital. They were apprehended by the public on chase but he could not name as he was already admitted to Pakri Dayal hospital. Because of the fact that he had come to police/hospital, therefore, he had not gone to his village thereafter. He further disclosed that there was trailing mark. He had also denied the suggestion that as bamboo was demanded by the police official through Chaukidar, hence he was illegally cutting therefrom. Then 27 had denied the suggestion that when Bishwanath and Punya Deo prevented them from cutting the bamboos, both of them were assaulted and during course thereof they sustained injuries to save their life. 24. PW-4 Brijnandan Thakur was declared hostile as he failed to support the case of the prosecution. Contrary to it, he stated that while he was engaged in shaving he saw Yogendra and Chandrika along with others having formed an unlawful assembly. During cross- examination at para-3, he had admitted that at that very time Fulgen was engaged in cutting bamboo through his labourer Laxman Hajra which was protested by Punya Deo on account of which an altercation took place. Both of them were claiming their rights. During course thereof, Fulgen was armed with Bhala, Chandrika and Yogendra were armed with Garasa who freely brandished thereof as a result of which Punya Deo and Bishwanath rushed and during course thereof they sustained injury. They were chased up to the field of Ravindra Singh during course thereof, Punya Deo and Bishwanath gave Bhala blow to save themselves. He had further disclosed that Punya Deo was over the land on the alleged date and time of occurrence. 25. PW-6 (wrongly mentioned as PW-5) Narendra Mohan Singh is the witness on seizure as well as inquest and nothing more is found in his evidence. 28 26. PW-8 (wrongly mentioned as PW-7) Ram Chandra Kuer is also a formal witness in nature who deposed on the point of seizure of blood stained Lungi at hospital belonging to informant, Fulegan. 27. At the present moment one should give a pause before entering into the evidence of the Investigating Officer in the background of the defence taken up by the appellants. The appellants apart from suggesting to the prosecution witnesses have also exhibited series of document as well as also adduced oral evidence during course of which also availed the permissibility of accused being a witness in terms of Section 315 of the Cr.P.C. coupled with specific assertion made under Section 313 of the Cr.P.C. 28. The gist of the counter case (FIR not exhibited) is that on the alleged date and time of occurrence the prosecution party armed variously made criminal trespass and forcibly began to cut bamboo which was resisted by them and on account thereof, the prosecution party pounced upon them causing severe injury and during said course they have brandished their weapon in exercise of their private defence which might have caused injury to the deceased Chandrika and Yogendra leading to their death. The basis for claim over the disputed land happens to be in the background of deed of sale executed by Overseer Singh in whose favour the original landlord 29 Most. Champa Kuer had executed the deed of gift. 29. For the present, while exercising criminal power, this Court found itself handicapped in appreciating the rival contention and conclude its finding either way adjudicating upon legality of documents having in possession of the rival party. Because of the fact that one party claims that deed of gift was a sham document and on account thereof neither was acted upon nor did it become operational. Hence, the deed of gift being in favour of Overseer Singh was cancelled and then Most. Champa Kuer bequeathed/sold away her land in favour of the prosecution party while the counter version is that the deed of gift was validly executed, acted upon and in the aforesaid background, the aforesaid Overseer Singh executed sale deed in favour of appellants. The aforesaid Overseer Singh was examined as PW-10 in connection with Sessions Trial No. 302/1982 (Ext-Q/1). After going through the evidence of Overseer Singh, it is evident that during course of his examination-in-chief had supported his contention but during course of examination at para-8, he accepted that the original document of deed of gift was in possession of Yogendra Singh. He also came to know after the occurrence that the aforesaid deed of gift was cancelled at the behest of Most.Champa Kuer. He had further stated that he had not made statement at an earlier occasion regarding the aforesaid event. In para-11 had stated 30 that he is not aware with the fact whether Champa Kuer had executed any document in favour of Fulgen Singh regarding her immovable property. Then had admitted that Champa Kuer had died at her Sasural at village-Chaita about one year after the occurrence. He had not demanded original document of deed of gift from Champa Kuer. He had also enquired from Champa Kuer with regard to cancellation thereof. After getting her answer, he had not taken any legal recourse. So far inter se relationship is concerned, that is itself evident from his para-1. 30. Appellant, Punya Deo Singh is DW-5. He had deposed that on the alleged date and time of occurrence while he along with his brother Bishawanath was at his Darwaja, his another brother Jagdish came and disclosed that Fulgen armed with Bhala had gone with his labourer, Laxman Hajra and is cutting bamboo from the bamboo cluster which they had purchased from Overseer Singh and Yogendra and Chandrika are standing in „Kharwani‟ lying adjacent east thereto armed with Farsa while Mahendra and Swaroop are keeping vigilance. On this, he along with Bishwanath rushed to bamboo cluster armed with Bhala for their safety and reached at the place of occurrence. He had forbidden them but they did not pay any heed. His another brother came and threw axe from the hand of Laxman Hajra and began to oust him which was resisted by 31 Chandrika and Yogendra. Chandrika gave Farsa blow on his head while Yogendra gave Farsa blow on the head of Bishwanath Singh. Both the brothers ran towards their house to save themselves followed by Chandrika and Yogendra and during said course they had inflicted Farsa blow causing injury upon his buttock as well as over the hand of Bishwanath Singh. Fulgen Singh gave Bhala blow over his stomach. Mahendra and Swaroop pelted stones. Then he along with Bishwanath gave Bhala blow on account of which Chandrika and Yogendra fell down after sustaining injuries. Fulgen Singh and others fled away. His brother Jagdish Singh took the injured to Pakri Dayal Hospital where he along with Bishwanath were admitted. On the following day, they were apprehended and were remanded to judicial custody and while he was under judicial custody, he was operated upon for the injury sustained by him. Later on, he came to know regarding death of Chandrika and Yogendra. He then disclosed that Bishwanath had given his Fardbeyan but was not properly investigated by the police. Hence, a protest petition was filed. He had also stated that the P.O. land originally belonged to Most.Champa Kuer who had gifted the property to her nephew Overseer Singh and from whom he had purchased the land and since thereafter the land under dispute was under their exclusive peaceful possession. In para-12 had further stated that on demand made by him from Overseer Singh regarding 32 original deed of gift, it has been submitted by Overseer Singh that the same was given to Yogendra for correction as well as for mutation because of the fact that some of the lands of different persons were also included in the document. During cross-examination at para-21 had admitted that he had not informed the legal authority regarding cutting of bamboo. On the other hand, two brothers had gone duly armed with Bhala while third one was empty hand and the fourth brother Shambhu Singh had gone to Motihari. In para-22 had said that when they reached at the place of occurrence, both of them entered into verbal duel. No Maar-peet was effected. In para-24 had admitted that because of the fact that prosecution party had assaulted him, hence they had assaulted Chandrika and Yogendra in the field of Ravindra Singh. Fulgen Singh was also assaulted there because of the fact that he had also assaulted us. When Chandrika and Yogendra fell down, he also fell down. In para-25 had disclosed that they have not assaulted Chandrika and Yogendra in Banswari. In para-34 had admitted that Patlu Singh (son of Most. Champa Kuer) was murdered in the year 1971 wherein he also stood as one of the accused. Chandrika and Yogendra (both deceased) were witness against him. In para-35 he had admitted that he was not aware with the fact that the disputed land was bequeathed to prosecution party. He had admitted that this land originally belonged to Champa Kuer. Then had denied 33 the suggestion. In para-36, he admitted that the original document being in favour of Overseer Singh is in possession of prosecution party. Mutation was not effected in the name of Overseer Singh rather it was effected in the name of Rajan Kumar, Fulgen Singh and Shail Devi. Then had denied that some portion of disputed land were sold by Fulgen and Shail Devi in favour of Jagdish Singh rather they have sold the land to the extent of their own share. In para-39, he had stated that the facts whatever deposed by him at the present moment was not stated by him before the police during course of investigation. In para- 40, he had further admitted that his brother Bishwanath had not narrated the event whatever stated by him in Fardbeyan. 31. DW-7, is another appellant Shambhu Singh. He had stated that on the alleged date and time of occurrence, he was at Motihari Town. Then had deposed that the P.O. land was under their exclusive possession. It never came in possession of prosecution party. Then had stated that he along with both the deceased stood as a witness against his brother with regard to murder of deceased, Patlu Singh. Police had exonerated his brother during course of investigation. He had further stated that on the basis of the gift executed by Champa Kuer in favour of her nephew Overseer Singh, Overseer Singh came over the land. He exhibited the document in question (certified copy as secondary evidence). Then had exhibited 34 the deed of redemption of mortgage deed executed by Patlu Singh in favour of Satyadeo Singh with regard to certain area of the disputed land which was handed over to him by Overseer Singh. Then had also exhibited the sale deed executed by Shambhu Narayan in favour of Punya Deo Singh. The aforesaid land was sold away by Chandrika Singh/deceased to Amir Lal who had sold it in favour of Shambhu Narayan. During cross-examination at para-14 he had stated that he is in possession of documentary evidence supporting the factum of his possession over the disputed land. He had further admitted that he had got no documentary proof with regard to staying Most. Champa Kuer at her Naihar after executing the deed of gift in favour of Overseer Singh. He had further admitted that mutation had not been effected in their name. Then had denied the suggestion that they illegally had gone over the land and during course of advancement of their illegal claim which was refuted by the prosecution party they had committed murder of Chandrika and Yogendra. 32. Rest witnesses are formal in nature as they had simply exhibited relevant deeds/document. 33. The Hon‟ble Apex Court in the case of Gopal & Anr v. State of Rajasthan as reported in (2013) 2 SCC 188 has taken into consideration the criteria for consideration while appreciating the plea of right of private defence. 35 “17. Regarding the plea of private defence, it is useful to refer to a decision of this Court in V. Subramani v. State of T.N., (2005) 10 SCC 358. The following principles and conclusion are relevant: “11. The only question which needs to be considered is the alleged exercise of right of private defence. Section 96 IPC provides that nothing is an offence which is done in the exercise of the 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 legitimately 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. It is not necessary for the accused to plead in so many words that he 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 a plea. In a given case the court can consider it even if the accused has not taken it, if the same is available to be considered from the material on record. Under Section 105 of the Indian Evidence Act, 1872 (in short “the Evidence Act”), the burden of proof is on the accused, who sets up 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 material on record either by himself adducing positive evidence or by eliciting necessary facts from the witnesses examined for the prosecution. An accused taking the plea of the right of private defence is not necessarily required to call evidence; he can establish his plea by reference to 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 be 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 36 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. (See Munshi Ram v. Delhi Admn.1, State of Gujarat v. Bai Fatima2, State of U.P. v. Mohd. Musheer Khan3 and Mohinder Pal Jolly v. State of Punjab4.) Sections 100 to 101 define the extent of the right of private defence of body. If a person has a right of private defence of body under Section 97, that right extends under Section 100 to causing death if there is reasonable apprehension that death or grievous hurt would be the assault. The oft-quoted observation of this Court in Salim Zia v. State of U.P.5 runs as follows: (SCC p. 654, para 9) the consequence of is required to prove “9. … It is true that the burden on an accused person to establish the plea of self-defence is not as onerous as the one which lies on the prosecution and that while the prosecution its case beyond reasonable doubt, the accused need not establish the plea to the hilt and may discharge his onus by establishing a mere preponderance of probabilities either by laying basis the cross-examination of prosecution witnesses or by adducing defence evidence.” that plea for in 34. Based upon the aforesaid principle, when we advert to the facts of the instant case, it is evident that irrespective of authenticity of the document concerned having in possession of respective parties, the evidence on the point of possession adduced by prosecution appears to be having more weightage in apportionment to the evidence adduced on behalf of the appellants that too when it is seen through the evidence of Overseer Singh (Ext-Q/1). At this juncture, one should not loss sight of the conduct of the appellants who very cunningly withheld the initial version by not exhibiting FIR 37 of counter case which, at least, in case of exhibit would have lightened on this aspect. In the aforesaid background, the plea of exclusive possession and exercise of right of private defence as pleaded and claimed by the appellants is found to be full of fiendishness and sketchy as well as maliciously engrafted. 35. From the evidence of Doctor PW-4A (PW-5) he had found injuries over the person of appellants Punya Deo Singh and Bishwanath Singh and in the opinion of the doctor injury sustained by both of them are simple in nature caused by sharp cutting weapon save and except injury no.4 over the person of Punya Deo Singh. Subsequently, while PW-6 (PW-7) was examined he had also stated that as referred by Motihari jail, accused Punya Deo Singh was admitted and diagnosed having intestinal obstruction for which he was operated upon which, in his opinion, was grievous in nature and dangerous to life might have been caused by Bhala, a sharp pointed weapon, sometimes, also used as sharp cutting weapon in case when its edge is instrumental in causing injury. Moreover, there is no document on the record to suggest that the injuries found by PW-6 (PW-7) was resultant of the injury found by PW-4A (PW-5) as the nature of injury over the abdomen was superficial as opined by PW- 4A (PW-5). 36. Even taking into account that there is presence of 38 injuries over the person of appellants, Punyadeo Singh and Bishwanath Singh which have not been properly explained, would it be sufficient to dethrone the prosecution version. In the case of Woman and Ors v. State of Maharashtra, (2011) 7 SCC 295, it has been observed in para-36 which are as follows:- “36. Ordinarily, the prosecution is not obliged to explain each injury on an accused even though the injuries might have been caused in the course of occurrence, if the injuries are minor in nature, however, if the prosecution fails to explain a grievous injury on one of the accused persons which is established to have been caused in the course of the same occurrence then certainly the court looks at the prosecution case with a little suspicion on the ground that the prosecution has suppressed the true version of the incident. However, if the evidences clear, cogent and creditworthy injuries sustained by the deceased or injury on the accused ipso facto cannot be basis to discard the entire prosecution case.” then non-explanation of certain 37. Therefore, the old testament dethroning the whole prosecution case on account of non explanation of the injuries sustained by accused during course of the same occurrence as alleged treating and observing that prosecution had suppressed the manner as well as genesis of occurrence and further failed to come forward with clean hand, found some sort of modification wherein consistent evidence of the prosecution was to be given priority over the aforesaid deficiency persisting on the record, hence the evidence on record will certainly command the conclusion. 39 38. Now coming to the evidence of I.O. (PW-9), it is evident that after recording the Fardbeyan at hospital, issued injury report, taken up investigation, recorded further statement of informant and then visited the place of occurrence as pointed out by witness Birendra Singh (not examined). He had detailed the place of occurrence as well as presence of dead body in the field of Ravindra Singh lying adjacent south to the Banswari dead body of Chandrika Singh and 36 hands south west therefrom dead body of Yogendra Singh. He had found the trampling mark, copious blood as well as blood stained over the leaves of bamboos. He had also seized one bag full of brick particles from the field of Shiv Narayan Singh and accordingly, prepared the inquest report, seizure list, also recorded statement of witnesses and had submitted charge-sheet. He had also stated that counter case was also filed at the behest of accused wherein final form was submitted after completing the investigation. His attention was also drawn to the statement of hostile witness PW-4, Brijnandan Thakur. During cross-examination, he had admitted that he had recorded Fardbeyan of counter case at the hospital itself. It was given by one of the appellants, Bishwanath Singh. The other relevant facts were not properly answered by him for want of case diary of counter case. Then had submitted that on O.D. slip he had come to hospital where he found three injured, Bishwanath Singh, Punya Deo 40 Singh, and Fulgen Singh out of whom Punya Deo Singh and Bishwanath Singh were arrested at the hospital itself. On 31.08.1976 he had received a request from doctor to shift them on account of deteriorating condition over which he had transmitted the aforesaid two accused to judicial custody. Then had submitted that he had not found trail of blood from Banswari to the field of Ravindra Singh and in likewise manner also had not found trial of blood up to the field of Yamuna Singh. From the field of Shiv Narayan not only a bag rather one Bana, one small Lathi were also seized. During course of investigation none had produced the document having in favour of Yogendra Singh executed by Most. Champa Kuer. Then had denied the suggestion that at his instance the prosecution party had gone illegally over P.O. land to cut bamboos for his personal use. Paras-18, 19, 20 are the contradiction relating to the witnesses concerned who are found to be minor one. 39. Even taking into account, the evidence of PW-8 (PW-9) inconsonance with the evidence of PW-4A (PW-5) which consistently shown presence of appellants Punya Deo Singh and Bishwanath Singh at Primary Health Centre, Pakri Dayal admitted on account of presence of injuries which PW-4A (PW-5) had already testified and further found consistent with the version of I.O., at one side as well as consistent prosecution version supported 41 with objective finding of the I.O. and corroborated with the medical evidence at other side certainly gives picturisation of free fight in the background of claim and counter claim over Banswari regarding which both the parties had their own saying fortified with so alleged respective documents. When there is a case of free fight, the matter was elaborately dealt with by the Hon‟ble Apex Court in the case of Raghubir Singh v. State of Rajasthan & Ors (2011) 12 SCC 235 and the relevant para is 16 which is as follows:- “16. In the light of the facts that have been enumerated above, it would be seen that the observations of the High Court that both sides had come to do battle appears to be justified as this is an assessment on an appreciation of the evidence which cannot be said to be palpably wrong so as to invite the intervention of this Court. The observation in Gajanand case (AIR 1954 SC 696) that in order to bring the matter within a free fight both sides have to come armed and prepared to do battle must be applied in the present case with the result that each accused would be liable for his individual act.” 40. The matter under controversy was again taken into consideration by the Hon‟ble Apex Court in the case of Dr. Mohammad Khalil Chisti v. State of Rajasthan & Ors. with Yasir Chisti & Anr v. State of Rajasthan as reported in 2013 Cri. L. J. 637 and after making elaborate discussion of the factual as well as legal aspect dealing with right of private defence as well as taking into account the prospect of free fight, in para-32 had observed as 42 follows:- “32……. Though the accused would have the benefit of such situation and the counsel appearing for the appellants prayed for acquittal of the appellants of all the charges, in view of the principle which we have already discussed, we are of the view that each accused can be fastened with individual liability taking into consideration the specific role or part attributed to each of the accused. In other words, both sides can be convicted for their individual acts and normally no right of private defence is available to either party and they will be guilty of their respective acts.” 41. In the light of above discussions, that altogether six ante-mortem injuries have been found over person of Yogendra Singh out of which injury no. 5 has been found to be caused by sharp cutting weapon while rest by sharp pointed weapon. Out of aforesaid injuries, injury no.1 is found to be grievous and rests are simple. Because of the fact that appellant Shambhu Singh was shown to be assailant of Yogendra by means of Garasa, Punya Deo Singh by Bhala and Jagdish Singh by Bhala and as per statement recorded under Section 313 of the Cr.P.C., Punya Deo Singh had admitted to have inflicted Bhala blow, therefore, Punya Deo Singh is found guilty for an offence punishable under Section 326 IPC and the rest two, i.e. Shambhu Singh and Jagdish Singh are found to be guilty for an offence punishable under Section 324 IPC respectively. 42. With regard to deceased Chandrika Singh, altogether 43 six injuries were found on his person out of which injury no.3 was found to be caused by sharp cutting weapon while injury no. 2 & 5 have been found caused by sharp pointed weapon out of which injury no.2 was shown to be grievous in nature while remaining as simple. So far assailants are concerned, Bishwanath Singh had assaulted with Bhala, Shambhu Singh with Garasa, Hira Manjhi with Garasa and Jagdish Singh by means of Bhala. There is admission on the part of appellants, Bishwanath Singh, hence he is found guilty for an offence punishable under Section 326 of the IPC while Shambhu Singh, Hira Manjhi and Jagdish Singh are found and held guilty for an offence punishable under Section 324 of the IPC respectively. 43. So far injury found over the person of Fulgen Singh is concerned, as per PW-4A (PW-5) he had sustained altogether seven injuries out of which injury no. 3 and 7 are scratches while remaining have been caused by sharp cut weapon. All classified as simple in nature. So far assailants are concerned, Shambhu Singh had assaulted with Garasa, Punya Deo Singh with Bhala, Lalbabu with Bhala and Chonha Manjhi with Lathi. None of the injuries have been found caused by Lathi, as such, with regard to injury caused to informant Fulgen Singh, Shambhu Singh, Punya Deo Singh are found to held guilty for an offence punishable under 44 Section 324 of the IPC. 44. Having not been corroborated by the medical evidence, at least appellants, Chonha Manjhi is found to be entitled for acquittal. Accordingly, judgment to the extent of his interest is set aside. The appeal to his extent only is allowed. 45. Since Chonha Manjhi is on bail, he is exonerated from the liability of bail bond. 46. With regard to appellants Bishwanath Singh and Punya Deo Singh are concerned, they have been found guilty for an offence punishable under Section 326 of the IPC, they each are accordingly, directed to undergo R.I. for 10 years as well as a sum of Rs.10,000/- is imposed in lieu of fine. In default of payment of fine, appellants, Bishwanath Singh and Punya Deo Singh each are further directed to undergo R.I. for two years. Since the appellants, Bishwanath Singh and Punya Deo Singh are on bail, their bail bond are cancelled and directed to surrender before the learned lower court. 47. With regard to appellants, Jagdish Singh, Hira Manjhi and Shambhu Singh, they have been found guilty for an offence punishable under Section 324 of the IPC hence they each are directed to undergo R.I. for three years as well as a sum of Rs.5,000/- each is imposed in lieu of fine. In case of default in 45 payment of fine, appellants, Jagdish Singh, Hira Manjhi and Shambhu Singh each will undergo R.I. for six months. The period already undergone will be set off while calculating the period of sentence. Jagdish Singh, Hira Manjhi and Shambhu Singh are on bail, hence their bail bonds are cancelled and directed to surrender before the learned lower court to serve out the remaining part of sentences. 48. With the aforesaid modification, the instant appeal to the interest of appellants, Bishwanath Singh and Punya Deo Singh, Jagdish Singh, Hira Manjhi and Shambhu Singh, is dismissed. (Aditya Kumar Trivedi, J) I agree (Shyam Kishore Sharma) (Shyam Kishore Sharma, J) Patna High Court 19th of March 2013 Md. Perwez Alam/AFR