Gautam Kumar Choudhary, J
1. Heard learned counsel for the appellant and learned counsel for the State.
1. The instant Criminal appeal is directed against the Judgment of conviction dated 22.07.2002 and order of sentence dated 23.07.2002 passed by
learned Additional District & Sessions Judge-II, Garhwa, in Sessions Trial No.125/1999 (arising out of Garwha P.S. Case No. 240 of 1998 and G.R.
No. 804 of 1998 whereby and whereunder the appellants have been convicted under Sections 302/149 and 307/149 of the IPC and sentenced to
undergo imprisonment for life under Section 302/149 of the IPC and RI for ten years under Sections 307/149 of the IPC. Both the sentences were
ordered to run concurrently.
2. As per the FIR, informant Sanjay Mahto (PW-4) was ploughing his field by tractor on 24.12.1998 at 4:00 O’clock in the evening. His father
Krishna Mahto was doing spade work in the same field and his mother was standing there with seeds of wheat for sowing in the field. In the
meantime, his agnates namely Shiv Prasad Mahto, Manijar Mahto, Barku Mahto, Harihar Mahto, Ram Prawesh Mahto, Jag Mohan Mahto, Awdesh
Mahto, Jai Prakash Mahto and Bhagat Raj Mahto (all the appellants) came there armed with garasa, sword, lathi and tangi etc. and opposed the
informant’s family for sowing seeds of wheat in the field. At this, they did not stop or relent. Thereafter, the informant and his father were
attacked by the accused persons and when his mother came to his rescue, she was also assaulted by them. Specific overt act has been attributed to
Shiv Prasad Mahto and Manijar Mahto who were armed with garasa, Harihar Mahto who was armed with sword whereas the other accused persons
were armed with lathi. The informant was critically injured and admitted in hospital. His mother was also inflicted with Garasa blow by Manijar
Mahto. The genesis of offence has been stated to be land dispute which was in cultivating possession of informant.
3. On the basis of the fardbeyan, Garwha P.S. Case No. 240 of 1998 was registered against the appellants under Sections 147, 148, 149, 323, 324, 307
and 302 of the IPC. After investigation, Police submitted charge-sheet and cognizance was taken and the appellants were put on trial for the offence
under Sections 302/149, 307/149 and 147 of the IPC.
4. In order to prove the case, altogether eleven witnesses have been examined by the prosecution and relevant documents have been adduced into
evidence and marked as Exhibits.
5. After closure of prosecution evidence, statement of all the appellants were recorded under Section 313 Cr.P.C. in which they pleaded not guilty.
Defence has also exhibited certain documents to buttress their claim of possession over the land in question. These documents have been marked as
Ext.- A to D, are orders passed by the Revenue Court.
6. Learned Counsel appearing for the appellants submitted that the land in dispute is of the appellants and submitted Exhibit-B which is certified copy
of the order passed by the Executive Magistrate in Miscellaneous Case No. 1020 of 1988 under Section 145 of Cr. P.C. in which Executive
Magistrate declared the possession of the appellants over the said land and in order to save their land, they had the right to private defence.
7. Learned APP for the State has defended the impugned judgment of conviction and order of sentence. It is submitted that the defence has neither
taken the plea of private defence in their statements under Section 313 of Cr.P.C., nor at the time of prosecution evidence.
FINDING
8. As per prosecution case land dispute claimed the life of the father of the informant.
9. Homicidal death of Krishna Mahto is not under challenge and has been proved by the oral evidence of the witnesses.
10. Informant- Sanjay Mahto and his mother Bimla Devi also sustained injury in the same incidence, is also proved by the injury reports which have
been adduced into evidence and marked as Exhibits-3 and 3/1. Their injuries are as under: -
(A) Injuries on deceased as per Post-Mortem Report: -
i) Haematoma present on the vertex of skull (sub-cutaneous layer).
ii) Bruises a) 6†x 1â€
b) 6 “ x 1 ½†over the abdomen (on upper and middle  portion)
Doctor opined that injury caused by hard and blunt substance.
iii) Abrasion ½†x ½†over left leg on medial side caused by hard and blunt substance.
iv) Transverse slit of throat measuring 4†x 3†(deep) exposing cut ends of trachea (wind pipe) and oesophagus (food pipe).
v) One punctured wound at right end injury no. 4 having depth 1 ½†and base 1 ½â€
Doctor opined that injuries no. (iv) and (v) were caused by sharp cutting weapons such as garasa and talwar and rest injuries were caused by lathi.
Cause of death was haemorrhage and disruption of air passage by above injuries. He proved the post-mortem report as Ext-2.
(B) He examined Sanjay Kumar and found following injuries on his person: -
a) Incised wound right frontal region of skull (posteriorly) 3â€x 1/6†x bone deep.
b) Incised wound right parietal of skull 2†x ¼†x bone deep.
c) Incised wound left inter scapular region 6 ½†x ¼†deep x 1/6†wide.
d) Incised wound 3†x ¾†x ¼†over right shoulder top.
Doctor opined that all the injuries were caused by sharp cutting weapons such as Garasa and Talwar and all the injuries were simple in nature.
(C) Bimla Devi was also examined and doctor found following injuries on her person: -
1) Lacerated injury 2â€x ¼â€x parietal scalp deep mid-scalp.
2) Lacerated injury 2â€x ½†x slain deep posteriorly upper part of right forearm.
Injury was simple in nature caused by hard and blunt substance.
11. Bimla Devi (PW-3) is the wife of the deceased and also an injured witness in this case. She deposed that the land which they were ploughing was
their ancestral land. All the appellants came armed with garasa, talwar and lathi and started assaulting them. Shiv Prakash Mahto gave garasa blow
on the head of her son as a result of which he sustained injury and fell down and appellant no. 2 (Manijar Mahto) assaulted her with garasa on her
head and appellant no. 3 (Harihar Mahto) had given sword blow on her right hand. She also deposed that appellant no. 8 (Jag Mohan) had cut the
neck of her husband with the help of Manijar and Bhagat Raj and other accused persons assaulted the deceased with lathi due to which her husband
died.
PW-6 (Sunil Kumar Mahto) had stated that all the appellants came armed with deadly weapons and assaulted his father, mother and brother as a
result of the assault his father died. He deposed in the same line as deposed by the informant in his deposition.
12. Informant-Sanjay Mahto, who was also injured in the incidence has corroborated the testimony of his mother on the factum of incidence. It has
been deposed by him that all the accused persons variously armed and came to the place of occurrence and assaulted him. Overt act has been
attributed to Shiv Prasad Mahto and Manijar Mahto who were armed with Garasa, Harihar Mahto and Jag Mohan armed with sword and remaining
accused persons had lathi. He has also been cross-examined at length, but there is nothing in the cross-examination to disbelieve his account. Apart
from these two witnesses, PW-2 and PW-6 have also claimed to be the eye witnesses to the incidence and have supported the prosecution case and
corroborated the testimony of other witnesses examined by prosecution.
13. It is argued by the learned counsel on behalf of appellants that the appellants were in settled possession of the land and order under Section 145 of
the Cr.P.C. was also passed in his favour. The said claim has been made on the basis of an ex-parte order passed by the Executive Magistrate on
14.09.1998 under Section 145 of the Cr.P.C. Learned Trial Court has noted that as notice was not duly served by the informant party, therefore, the
order under Section 145 of the Cr.P.C. was ab initio void as it was passed behind their back. Further, Exhibit 8/4 which was the order dated
30.04.2002 passed by Sessions Judge, Garhwa in Cr. Revision No. 83/98 showed the order passed by the Executive Magistrate dated 14.09.1998
(Exhibit-B) was set aside.
14. Be that as it may, even if it is assumed for the sake of argument that order declaring the possession of the appellants had been declared in favour
of the appellants, the party aggrieved have efficacious legal remedy, if that order was being violated, and had no right to launch the murderous attack.
The plea of private defence is not tenable and is accordingly, rejected.
15. From the evidence on record, it is apparent that the accused persons by forming an unlawful assembly armed with dangerous weapon, attacked
the informant party who were ploughing the field, in order to dispossess them from the settled possession of the land. Offence was committed in the
prosecution of the common object and therefore each member of the unlawful assembly is guilty for the offence.
Under the circumstance, I do not find any infirmity in the judgment of conviction and sentence.
Accordingly, Criminal Appeal stands dismissed.
Since appellants are on bail, their bails stand cancelled and they are directed to surrender before the learned Court below so as to serve the remaining
sentence.
Let T.C.R. along with a copy of this judgment be sent to the court concerned at once.
