Shibu Mahto v. Sonelal Mahto

(In CR. REV. No. 489 of 2002): For the Petitioners: Mr. Jitendra Narain Sinha, Amicus Curiae. For the State : Mr. Dashrath Mehta, A.P.P. =========================================================== CORAM: HONOURABLE MR. JUSTICE RAJENDRA KUMAR MISHRA CAVJUDGMENT Date: 7 -03-2013: …………. Criminal Revision No.488 of 2002 and Criminal Revision No.489 of 2002 are directed against the Judgment and Order dated

16.4.2002 passed by the 1st Additional Sessions Judge, Samastipur, whereby the learned 1st Additional Sessions Judge, Samastipur, 2 Patna High Court CR. REV. No.488 of 2002 dt.07-03-2013 dismissed the Criminal Appeal No.50 of 1990/49 of 1994, preferred by the petitioners of Criminal Revision No.488 of 2002, and Criminal Appeal No.47 of 1990/47 of 1994, preferred by the petitioners of Criminal Revision No.489 of 2002 and one Ram Pukar Mahto, against the Judgment of conviction and Order of sentence dated 20.4.1990 passed in Sessions Trial No.13 of 1987/78 of 1987 by the 2nd Assistant Sessions Judge, Samastipur, with modification in their sentences. As such, both the Criminal Revisions have been heard together and are being disposed of by this common Judgment.

The prosecution case is based upon the fardbeyan(Ext.1) of the informant, Raj Kumar Mahto (P.W.7) as recorded on 5.6.1985 at about 11.00 A.M. at Sub Divisional Hospital, Dalsingsarai, by the Sub Inspector of Police, N.P. Singh, of Police Station-Dalsingsarai. The informant, Raj Kumar Mahto (P.W.7) gave his fardbeyan to the effect that he along with his uncle, Ayodhya Mahto (P.W.3), and Janardan Mahto (P.W.2), the son of Ayodhya Mahto, reached on

5.6.1985 at about 7.00 A.M. to his Plot No.2421 to sow the maize crops and was mixing the manure in the soil. At about 7.30 A.M., his villagers, Sonelal Mahto armed with bhala, Ram Pukar Mahto armed with bhala, Ramdeo Mahto armed with lathi, Gulten Mahto armed with lathi, Jaddu Mahto armed with lathi, Shibu Mahto armed with bhala, Rajo Mahto armed with lathi and Bisheshwar Mahto armed 3 Patna High Court CR. REV. No.488 of 2002 dt.07-03-2013 with lathi, came there. Sonelal Mahto asked them to move from the field claiming the land of his own but he along with his uncle and uncle’s son denied to leave the field. Then Sonelal Mahto gave the bhala blow on the back of Ayodhya Mahto and Ram Pukar Mahto gave bhala blow from the front on Ayodhya Mahto causing injury on his stomach. Shibu Mahto gave the bhala blow twice at him causing injury on his head. Ramdeo Mahto, Gulten Mahto, Jaddu Mahto, Bisheshwar Mahto and Rajo Mahto, gave lathi blow at Janardan Mahto causing injury on his back, waist and legs. He and his uncle also sustained lathi injuries in that course. In the meantime, his villagers, Laxmi Mahto (P.W.4), Umakant Mahto (P.W.5) and Bhaglu Mahto (P.W.6) came there and intervened, then the aforesaid accused persons fled away from there. Thereafter, he along with others rushed to hospital for treatment and due to grievous injuries caused to Ayodhya Mahto and Janardan Mahto, they were sent to D.M.C.H., Darbhanga.

On the basis of the fardbeyan of the informant, Raj Kumar Mahto (P.W.7), Dalsingsarai P.S. Case No.101 of 1986 was instituted against the aforesaid accused persons under Sections 147, 148, 149, 307, 324 and 323 of the Indian Penal Code and Bharat Kant Jha, the Officer Incharge of Police Station-Dalsingsarai, took up the investigation, who after recording the statements of the witnesses, 4 Patna High Court CR. REV. No.488 of 2002 dt.07-03-2013 collecting the injury reports of the injured and completing other formalities submitted the chargesheet against the accused persons and, accordingly, the case was committed to the court of sessions for trial.

In course of trial, the prosecution examined altogether nine witnesses including the Investigating Officer of the case and the doctor and also got exhibited some documents. On the other hand, the defence also examined six witnesses and got exhibited some documents to show the land of place of occurrence belonging to the accused Sonelal Mahto.

On perusal of the evidence available on record and on hearing the learned counsel for the prosecution and the defence, the learned 2nd Assistant Sessions Judge, Samastipur, held the accused, Sonelal Mahto and Ram Pukar mahto, guilty for the offence under Sections 148 and 307 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for two years for the offence under Section 148 of the Indian Penal Code and seven years for the offence under Section 307 of the Indian Penal Code. The accused, Shibh Mahto, was found guilty for the offence under Sections 148 and 324 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for two years for the offence under Section 148 of the Indian Penal Code and two years rigorous imprisonment for the offence under Section 324 of the Indian Penal Code. The accused, 5 Patna High Court CR. REV. No.488 of 2002 dt.07-03-2013 Ramdeo Mahto, Raju Mahto, Bisheshwar Mahto, Gulten Mahto and Jaddu Maho, were convicted for the offence under Sections 147, 323 and 307 read with Section 149 of the Indian penal Code and were sentenced to undergo rigorous imprisonment for six months for the offence under Section 323 of the Indian Penal Code, for six months for the offence under Sections 147 of the Indian Penal Code and for two years for the offence under Sections 307/149 of the Indian Penal Code, with a direction to run all the sentences of all the accused concurrently.

Being aggrieved and dissatisfied with the aforesaid Judgment of conviction and Order of sentence passed by the 2nd Assistant Sessions Judge, Samastipur, the accused, Sonelal Mahto, Ram Pukar Mahto and Ramdeo Mahto preferred Criminal Appeal No.47 of 1990/47 of 1994, whereas the accused, Gulten Mahto, Jaddu Mahto, Rajo Mahto, Shibu Mahto and Bisheshwar Mahto, preferred Criminal Appeal No.50 of 1990/49 of 1994. Both the aforesaid Criminal Appeals were heard together by the court of 1st Additional Sessions Judge, Samastipur, who dismissed the same with the modification of the sentences with direction to run all sentences of all accused concurrently. The accused, Sonelal Mahto (petitioner no.1 of Criminal Revision No.489 of 2002) and Ram Pukar Mahto were sentenced to undergo rigorous imprisonment for one year for the 6 Patna High Court CR. REV. No.488 of 2002 dt.07-03-2013 offence under Section 148 of the Indian Penal Code and three years for the offence under Section 307 of the Indian Penal Code. The accused, Shibu Mahto (petitioner no.1 of Criminal Revision No.488 of 2002) was sentenced to undergo rigorous imprisonment for one year each for the offence under Sections 148 and 324 of the Indian Penal Code. The accused, Rajo Mahto alias Raju Mahto, Bisheshwar Mahto, Gulten Mahto alias Guletan Mahto and Jaddu Mahto (petitioner nos.2 to 5 of Criminal Revision No.488 of 2002) and Ramdeo Mahto (petitioner no.2 of Criminal Revision No.489 of 2002), were sentenced to undergo rigorous imprisonment for six months each for the offence under Section 147 and 323 of the Indian Penal Code and one year for the offence under Section 307 of the Indian Penal Code.

It is submitted on behalf of the petitioners that there was a case and counter case in between the prosecution party and the accused-petitioners for the same occurrence and Sonelal Mahto (petitioner of Criminal Revision No.489 of 2002) had also sustained injuries on his person at the place of occurrence and Sonelal Mahto (petitioner of Criminal Revision No.489 of 2002) was also examined by the Dr. Baidyanath Sharan Singh (P.W.9), which would appear from his evidence. In fact, the P.O. land is belonging to the accused, Sonelal Mahto, as such, the prosecution party was aggressor in the 7 Patna High Court CR. REV. No.488 of 2002 dt.07-03-2013 occurrence but the learned appellate court has not considered the same and illegally dismissed both the Criminal Appeals as preferred by the petitioners of both the Criminal Revisions and one Ram Pukar Mahto.

It appears from the fardbeyan (Ext.1) of the informant, Raj Kumar Mahto (P.W.7), that the P.O. land is Plot No.2421. P.W.3, Ayodhya Mahto (P.W.3) has also stated in his evidence that the P.O. land is Plot No.2421 and has also detailed the boundary of the P.O. land in his evidence claiming the same to his own. Ext.B is the sale- deed dated 25.6.1985 executed by Dayaram Poddar and his mother, Most. Pavitri Devi, in favour of Sonelal Mahto (petitioner on Criminal Revision No.489 of 2002). From perusal of the sale-deed (Ext.B), it appears that the plot as shown to be sold in favour of Sonelal Mahto is C.S. Plot No.2419 (R.S. Plot No.2588). The boundaries as detailed in the sale deed are also different to the boundary of the P.O. land as detailed by Ayodhya Mahto (P.W.3) in his evidence. As such, the defence has not established the case that P.O. land, i.e., Plot No.2421, is owned by accused, Sonelal Mahto. Therefore, right of private defence could not be claimed by the defence. The appellate court has discussed the evidence of both sides in detail and also the defence of the accused-petitioners in the impugned Judgment. I find no illegality in the impugned Judgment of conviction passed against the petitioners of both the Criminal Revisions. So far as the sentence awarded to the 8 Patna High Court CR. REV. No.488 of 2002 dt.07-03-2013 petitioners of both the Criminal Revisions are concerned, the appellate court has already taken a lenient view by modifying the sentences of the petitioners of both the Criminal Revisions as awarded by the trial court.

Under the aforesaid facts and circumstances of the case and the discussions made above, I find no merit in both these Criminal Revisions and the same are, accordingly, dismissed. The petitioners of both the Criminal Revisions are on bail, therefore, their bail bonds are cancelled. They are directed to surrender before the court below to serve the remaining period of sentence. Let the Lower Court Records be sent to the court below forthwith.

Let copy of the first and last page of this Judgment be handed over to Mr. Jitendra Narain Sinha, learned counsel, who appeared as amicus curiae in Criminal Revision No.489 of 2002 on behalf of the petitioners, by the office. (Rajendra Kumar Mishra, J) P.S./-N.A.F.R.