Subhankar Jha Vs. State of Bihar - Court Judgment

SooperKanoon Citationsooperkanoon.com/1151784
CourtPatna High Court
Decided OnApr-04-2014
Case NumberCriminal Appeal (SJ) No. 402 of 2002
JudgeDHARNIDHAR JHA
AppellantSubhankar Jha
RespondentState of Bihar
Excerpt:
1. subhankar jha, the appellant, appeals against the judgment of conviction dated 18.07.2002 and order of sentence dated 19.07.2002 passed by the learned presiding officer, fast track court-i, purnea in sessions trial no.184 of 1997/ 113 of 2002 by which the appellant was held guilty of committing an offence under section 307 ipc and was directed to suffer rigorous imprisonment for ten years. 2. the informant subhash chandra jha (p.w.3) had three brothers. appellant subhankar jha was one of the three brothers and another brother subodh jha, a witness, was not examined. it appears from paragraph-11 of the evidence of p.w.3 that all brothers owned and possessed 18 kathas of bamboo clumps jointly. it appears further from the same paragraph that the brothers also enjoyed equal share in the share of properties of their deceased father between themselves. 3. in the above admitted fact situation the allegation was that this appellant subhankar jha had cut 8-9 bamboos from the said bamboo clumps. he was cleaning the bamboos when the informant subhash chandra jha (p.w.3) came and asked as to why he had cut those numbers of bamboos from his bamboo clumps. the initial allegation showed as if the informant was the sole proprietor of some part of the bamboo clumps from where the appellant had cut the bamboos. on being questioned on the propriety of his act of cutting the bamboos, the appellant is said to have retorted back by telling the informant (p.w.3) that he had only cut the bamboos and he will now cut the head of the informant and rushed towards the informant to give blows with dabiya, a heavy sharp cutting weapon. the first blow fell on the head of the informant and when the appellant was attempting to give another blow to the informant, subhodh kumar jha, who was the brother of the appellant and the informant caught the hands of the appellant, as a result of which, the blow could not strike finally. the informant stated that he fell down on the ground and that persons of the neighbourhood also rushed to the scene of occurrence, as a result of which, this appellant rushed into his house. 4. it appears that the informant subhash chandra jha was taken to the state dispensary, dhamdaha where his fardbeyan (ext-2) was recorded by the police and the case was registered under sections 323, 324 and 307 ipc. 5. the investigating officer was not examined but it appears that after close of the investigation, the solitary appellant was sent up for trial, which ended in the impugned judgment. 6. the defence of the appellant was of no occurrence as also of innocence and filing of the false case by p.w. 3 in collusion with the police. 7. four witnesses were examined during trial of the case. i have already noted that the informant subhash chandra jha was p.w.3 whereas the doctor who had examined him in dhamdaha state dispensary, i.e. dr. sunil kumar rai was examined as p.w.1. dinanath jha was examined as p.w.2 and as may appear from his evidence, when he reached at the scene of occurrence, he found the informant (p.w.3) in a pool of blood who pointed out to p.w. 2 that it was this appellant who had given the dabiya blow to him. p.w.4 was manoj jha who had supported the allegation in its entirety from the very beginning of the occurrence to its end. 8. it was contended by the learned counsel appearing for the appellant that the evidence of the case indicates as if it were a solitary blow which had caused the injury but the doctor had found two injuries on the person of p.w.3 and that falsified the manner of occurrence. it was further contended that the genesis of the occurrence of cutting bamboos of the informant also appears falsified by the fact that the bamboo clump was joint among the three brothers of the informant as per his own evidence in paragraph-11 and, as such, there was no reason to object to the cutting of the bamboos and it appears that for filing a false case an untrue genesis of the occurrence was framed. it was next contended that the investigating officer was not produced for his examination and, as such, it was not established as to where the occurrence had really taken place. submission was that in any view of the matter, it could not be a case under section 307 ipc. 9. in response to the above contentions, the learned counsel appearing for the state as also for the informant have supported the findings recorded by the learned trial judge and have further contended that the appellant had the requisite intention of giving the blow with dabiya which irrespective of the nature of the injuries indicated that the present appellant had intended to cause the death of subhash chandra jha (p.w.3) and, as such, it was a case correctly found under section 307 ipc. 10. i have noticed some of the admitted facts of the case while narrating the prosecution story and in that course, i have noted that the bamboo clump which was claimed by p.w.3 to be his own exclusive property from where the appellant had allegedly cut away eight or nine bamboos was not his exclusive property, rather it was a joint property with his brothers. this fact has been admitted by p.w.3 in paragraph-11 in which it has also been admitted that the land as also the standing bamboos which would have fallen in the share of his father, was also being equally enjoyed by the informant and his brothers. thus, the right to cut the bamboo or in other words, the right to utilize the usufruct of that movable property of 18 kathas was very much existing in favour of the appellant and as appears admitted by the informant himself that he had earlier also enjoyed that right. as such, the story of the prosecution to the extent that the present appellant had unlawfully or may be stealthily, cut away 8-9 bamboos belonging to the appellant was false. the owner of the property has a right not only to lodge a protest but also to pursue the person who had committed theft in respect of the property till it is finally recovered. this is the extent of right of private defence to ones the properties as also right to possess the property. every proprietor has inherent right in him not only to possess the property but also to ensure by all means permissible under law that such properties are never removed from his possession and in case the properties are removed by unlawful means to cause wrongful loss to him, then he has an inherent right to retrieve his properties back into his possession. if that could have been the case in hand, then the informants accusation that the appellant had unlawfully cut his bamboos could have been upheld. however, in the admitted facts of the case which appears from paragraph-11 of the evidence of p.w.3, did not have any legal right to lodge the protest, because the appellant was very much clothed with the right to enjoy the property or the usufruct of that immovable property. thus, the question is that if the protest was lodged by a person who did not have any right, was the appellant within his rights to open assault with such dangerous weapon as a dabiya. 11. in my considered view, the appellant did not have that right because of one particular aspect of the case. the appellant had already cut 8 or 9 bamboos from the bamboo clumps. he had brought those bamboos to the place he had desired to. he was cleaning those bamboos. it was a mere enquiry, might be out of curiosity or might be on account of the grudge which a coparcener share holder in such a situation entertains against the other co-sharers either damaging the property or unduly enjoying the usufruct of the said property. that could not have given any occasion for the appellant to rush to his brother who did have a right to protest and to give a blow with such dangerous a weapon, like, a dabiya. that attack which was opened up by the appellant and set up against the informant, in the opinion of the court, could not be justified legally. to that extent the act of the appellant appears a voluntary act, and an act intended to inflict a blow upon the informant but then the question is as to whether that solitary blow which had caused an injury and the next blow which had been attempted by him could be constituting an offence under section 307 ipc. and, further, the manner of occurrence appears established by facts. 12. the facts are a bit anomalous. on a close scrutiny of the evidence of p.ws.3 and 4 what appears is that the appellant had given the first blow with dabiya which had fallen on the head of the informant (p.w.3) and when the appellant was attempting to repeat the blow, he was caught by his brother subodh jha as a result of which, the blow could not fructify. the doctor who examined p.w.3 found two injuries, both sharp cut wounds, the first measuring 4 cm x ½ cm x ½ cm on forehead and other measuring 2 cm x ½ cm over head. the evidence of p.w.3 indicates as if the first blow had fallen on his head which indicates as if the first blow could have resulted in injury no.2 which was measuring 2 cm x ½ cm, ½ cm. there is unqualified admission by both p.w.3 as also by p.w.1 that the second blow was intercepted by subhash chandra jha on account of having caught the hands of the present appellant and, as such, did not appear hitting any part of the head of the injured. there was, of course, another injury in the form of injury no.1 on forehead measuring 4 cm x ½ cm x ½ cm. the evidence of p.w.3, the informant indicates that the blow was given with full force and that the blow was given with sufficient flow as appears from paragraph-16 of the evidence of p.w.3. if the blow had been given with sufficient force with as heavy a weapon as dabiya, then the depth of injury measuring ½ cm which was the result of such a blow appears as innocuous as to justify the manner of occurrence as stated by the informant. as per description of the manner of occurrence by p.w.3 in paragraph-16, the blow could have been enough to cause any serious injury which could be dangerous to life and then again there is no explanation from the prosecution as to how the informant happened to have injury no.1 on his forehead. this is one flaw in the manner of occurrence on account of the inconsistency in the medical evidence as also in the oral testimony of the witnesses which makes it very difficult for this court to hold that the story told by the informant could be acceptable. 13. there are other reasons for recording the above finding. it is stated by p.w.3 that after he had fallen down on the ground on account of being hit on his head, the wife of the accused caught the hairs of his wife and there was a mutual fight between the two ladies. i at least could be the last person to accept the story which story incidentally has also been rejected by the learned trial judge. the part of the state and the region from where this case has been reported and the societal circumstances and the cultural background of the community informs me that the ladies might have quarreled between themselves verbally and never physically and that too not on an issue which was the central theme of the present case. the ladies of that area could have verbal dual on matters, like, fights between the children, using some part of the joint property or the household, but they are never supposed or seen coming out of their domestic precincts to engage in physical fight between themselves. mithila is one area where some norms on such matters are still maintained and if the ladies could have done as stated by p.w.3 in paragraph-20 then it could have simply disgraced them in the eyes of the society and that could have created a stigma for them besides disgracing them in the eyes of their society and this one norm generally precludes them from fighting by being engaged with each other physically. this one circumstance which appears from the evidence of p.w.3 further compounds the difficulty in the mind of the court in accepting the story as propounded by p.w.3. brothers do fight and they fight for properties also, which appears a case already existing since prior to the date of occurrence. p.w.3 has admitted that his father was separate from his sons and he was probably living with subhash chandra jha who was also looking after the properties which was earmarked by the father of the informant in to his share and that the relationship between the appellant and the informant was extremely estranged. these facts have been admitted by p.w.3 in paragraphs-12 and 14. the defence document also shows that a civil suit was also pending for partition of certain properties. the plaint of that title suit no.18 of 2009 was filed by the defence in the court below. there might have been some scuffle or mutual fight between the brothers, but that does not appear truly presented before the court of law for trial. 14. the most vital defect which appears in the prosecution case is that on account of non-examination of the investigating officer the fact as to whether any bamboos were cut or removed by the appellant, even from the joint bamboo clumps, could not be brought on record. he is supposed to have visited the place of occurrence and also to have visited the bamboo clumps which was central theme and initial reason for quarrel between the brothers and is further supposed to have noted as to how many bamboos were cut or had not been cut. in absence of the evidence of the investigating officer these objective finding could not be brought on the record of the case creating a defect in the prosecution case which makes it further not appropriate for this court to accept the story. 15. in view of the discussions of the evidence and probabilities arising from the facts and circumstances of the case, the court finds that the informant was guilty of suppressing the true manner of occurrence and had probably placed a story which was different from the real occurrence having occurred and in that view of the matter, the prosecution case suffers from some material defect, as a result of which, the court finds that it was a case in which the appellant ought to have been acquitted of the charge for which he had been found guilty. 16. in the result, the appeal succeeds and the same is allowed. the judgment of conviction and the order of sentence are hereby set aside. the appellant, subhankar jha is on bail. he shall stand discharged from the liabilities of his bail bonds.
Judgment:

1. Subhankar Jha, the appellant, appeals against the judgment of conviction dated 18.07.2002 and order of sentence dated 19.07.2002 passed by the learned Presiding Officer, Fast Track Court-I, Purnea in Sessions Trial No.184 of 1997/ 113 of 2002 by which the appellant was held guilty of committing an offence under Section 307 IPC and was directed to suffer rigorous imprisonment for ten years.

2. The informant Subhash Chandra Jha (P.W.3) had three brothers. Appellant Subhankar Jha was one of the three brothers and another brother Subodh Jha, a witness, was not examined. It appears from paragraph-11 of the evidence of P.W.3 that all brothers owned and possessed 18 kathas of bamboo clumps jointly. It appears further from the same paragraph that the brothers also enjoyed equal share in the share of properties of their deceased father between themselves.

3. In the above admitted fact situation the allegation was that this appellant Subhankar Jha had cut 8-9 bamboos from the said bamboo clumps. He was cleaning the bamboos when the informant Subhash Chandra Jha (P.W.3) came and asked as to why he had cut those numbers of bamboos from his bamboo clumps. The initial allegation showed as if the informant was the sole proprietor of some part of the bamboo clumps from where the appellant had cut the bamboos. On being questioned on the propriety of his act of cutting the bamboos, the appellant is said to have retorted back by telling the informant (P.W.3) that he had only cut the bamboos and he will now cut the head of the informant and rushed towards the informant to give blows with Dabiya, a heavy sharp cutting weapon. The first blow fell on the head of the informant and when the appellant was attempting to give another blow to the informant, Subhodh Kumar Jha, who was the brother of the appellant and the informant caught the hands of the appellant, as a result of which, the blow could not strike finally. The informant stated that he fell down on the ground and that persons of the neighbourhood also rushed to the scene of occurrence, as a result of which, this appellant rushed into his house.

4. It appears that the informant Subhash Chandra Jha was taken to the State Dispensary, Dhamdaha where his fardbeyan (Ext-2) was recorded by the police and the case was registered under Sections 323, 324 and 307 IPC.

5. The investigating officer was not examined but it appears that after close of the investigation, the solitary appellant was sent up for trial, which ended in the impugned judgment.

6. The defence of the appellant was of no occurrence as also of innocence and filing of the false case by P.W. 3 in collusion with the police.

7. Four witnesses were examined during trial of the case. I have already noted that the informant Subhash Chandra Jha was P.W.3 whereas the doctor who had examined him in Dhamdaha State Dispensary, i.e. Dr. Sunil Kumar Rai was examined as P.W.1. Dinanath Jha was examined as P.W.2 and as may appear from his evidence, when he reached at the scene of occurrence, he found the informant (P.W.3) in a pool of blood who pointed out to P.W. 2 that it was this appellant who had given the Dabiya blow to him. P.W.4 was Manoj Jha who had supported the allegation in its entirety from the very beginning of the occurrence to its end.

8. It was contended by the learned counsel appearing for the appellant that the evidence of the case indicates as if it were a solitary blow which had caused the injury but the doctor had found two injuries on the person of P.W.3 and that falsified the manner of occurrence. It was further contended that the genesis of the occurrence of cutting bamboos of the informant also appears falsified by the fact that the bamboo clump was joint among the three brothers of the informant as per his own evidence in paragraph-11 and, as such, there was no reason to object to the cutting of the bamboos and it appears that for filing a false case an untrue genesis of the occurrence was framed. It was next contended that the investigating officer was not produced for his examination and, as such, it was not established as to where the occurrence had really taken place. Submission was that in any view of the matter, it could not be a case under Section 307 IPC.

9. In response to the above contentions, the learned counsel appearing for the State as also for the informant have supported the findings recorded by the learned trial Judge and have further contended that the appellant had the requisite intention of giving the blow with Dabiya which irrespective of the nature of the injuries indicated that the present appellant had intended to cause the death of Subhash Chandra Jha (P.W.3) and, as such, it was a case correctly found under Section 307 IPC.

10. I have noticed some of the admitted facts of the case while narrating the prosecution story and in that course, I have noted that the bamboo clump which was claimed by P.W.3 to be his own exclusive property from where the appellant had allegedly cut away eight or nine bamboos was not his exclusive property, rather it was a joint property with his brothers. This fact has been admitted by P.W.3 in paragraph-11 in which it has also been admitted that the land as also the standing bamboos which would have fallen in the share of his father, was also being equally enjoyed by the informant and his brothers. Thus, the right to cut the bamboo or in other words, the right to utilize the usufruct of that movable property of 18 kathas was very much existing in favour of the appellant and as appears admitted by the informant himself that he had earlier also enjoyed that right. As such, the story of the prosecution to the extent that the present appellant had unlawfully or may be stealthily, cut away 8-9 bamboos belonging to the appellant was false. The owner of the property has a right not only to lodge a protest but also to pursue the person who had committed theft in respect of the property till it is finally recovered. This is the extent of right of private defence to ones the properties as also right to possess the property. Every proprietor has inherent right in him not only to possess the property but also to ensure by all means permissible under law that such properties are never removed from his possession and in case the properties are removed by unlawful means to cause wrongful loss to him, then he has an inherent right to retrieve his properties back into his possession. If that could have been the case in hand, then the informants accusation that the appellant had unlawfully cut his bamboos could have been upheld. However, in the admitted facts of the case which appears from paragraph-11 of the evidence of P.W.3, did not have any legal right to lodge the protest, because the appellant was very much clothed with the right to enjoy the property or the usufruct of that immovable property. Thus, the question is that if the protest was lodged by a person who did not have any right, was the appellant within his rights to open assault with such dangerous weapon as a Dabiya.

11. In my considered view, the appellant did not have that right because of one particular aspect of the case. The appellant had already cut 8 or 9 bamboos from the bamboo clumps. He had brought those bamboos to the place he had desired to. He was cleaning those bamboos. It was a mere enquiry, might be out of curiosity or might be on account of the grudge which a coparcener share holder in such a situation entertains against the other co-sharers either damaging the property or unduly enjoying the usufruct of the said property. That could not have given any occasion for the appellant to rush to his brother who did have a right to protest and to give a blow with such dangerous a weapon, like, a Dabiya. That attack which was opened up by the appellant and set up against the informant, in the opinion of the Court, could not be justified legally. To that extent the act of the appellant appears a voluntary act, and an act intended to inflict a blow upon the informant but then the question is as to whether that solitary blow which had caused an injury and the next blow which had been attempted by him could be constituting an offence under Section 307 IPC. And, further, the manner of occurrence appears established by facts.

12. The facts are a bit anomalous. On a close scrutiny of the evidence of P.Ws.3 and 4 what appears is that the appellant had given the first blow with Dabiya which had fallen on the head of the informant (P.W.3) and when the appellant was attempting to repeat the blow, he was caught by his brother Subodh Jha as a result of which, the blow could not fructify. The doctor who examined P.W.3 found two injuries, both sharp cut wounds, the first measuring 4 cm x ½ cm x ½ cm on forehead and other measuring 2 cm x ½ cm over head. The evidence of P.W.3 indicates as if the first blow had fallen on his head which indicates as if the first blow could have resulted in injury no.2 which was measuring 2 cm x ½ cm, ½ cm. There is unqualified admission by both P.W.3 as also by P.W.1 that the second blow was intercepted by Subhash Chandra Jha on account of having caught the hands of the present appellant and, as such, did not appear hitting any part of the head of the injured. There was, of course, another injury in the form of injury no.1 on forehead measuring 4 cm x ½ cm x ½ cm. The evidence of P.W.3, the informant indicates that the blow was given with full force and that the blow was given with sufficient flow as appears from paragraph-16 of the evidence of P.W.3. If the blow had been given with sufficient force with as heavy a weapon as Dabiya, then the depth of injury measuring ½ cm which was the result of such a blow appears as innocuous as to justify the manner of occurrence as stated by the informant. As per description of the manner of occurrence by P.W.3 in paragraph-16, the blow could have been enough to cause any serious injury which could be dangerous to life and then again there is no explanation from the prosecution as to how the informant happened to have injury no.1 on his forehead. This is one flaw in the manner of occurrence on account of the inconsistency in the medical evidence as also in the oral testimony of the witnesses which makes it very difficult for this Court to hold that the story told by the informant could be acceptable.

13. There are other reasons for recording the above finding. It is stated by P.W.3 that after he had fallen down on the ground on account of being hit on his head, the wife of the accused caught the hairs of his wife and there was a mutual fight between the two ladies. I at least could be the last person to accept the story which story incidentally has also been rejected by the learned trial Judge. The part of the State and the region from where this case has been reported and the societal circumstances and the cultural background of the community informs me that the ladies might have quarreled between themselves verbally and never physically and that too not on an issue which was the central theme of the present case. The ladies of that area could have verbal dual on matters, like, fights between the children, using some part of the joint property or the household, but they are never supposed or seen coming out of their domestic precincts to engage in physical fight between themselves. Mithila is one area where some norms on such matters are still maintained and if the ladies could have done as stated by P.W.3 in paragraph-20 then it could have simply disgraced them in the eyes of the society and that could have created a stigma for them besides disgracing them in the eyes of their society and this one norm generally precludes them from fighting by being engaged with each other physically. This one circumstance which appears from the evidence of P.W.3 further compounds the difficulty in the mind of the court in accepting the story as propounded by P.W.3. Brothers do fight and they fight for properties also, which appears a case already existing since prior to the date of occurrence. P.W.3 has admitted that his father was separate from his sons and he was probably living with Subhash Chandra Jha who was also looking after the properties which was earmarked by the father of the informant in to his share and that the relationship between the appellant and the informant was extremely estranged. These facts have been admitted by P.W.3 in paragraphs-12 and 14. The defence document also shows that a civil suit was also pending for partition of certain properties. The plaint of that Title Suit No.18 of 2009 was filed by the defence in the court below. There might have been some scuffle or mutual fight between the brothers, but that does not appear truly presented before the court of law for trial.

14. The most vital defect which appears in the prosecution case is that on account of non-examination of the investigating officer the fact as to whether any bamboos were cut or removed by the appellant, even from the joint bamboo clumps, could not be brought on record. He is supposed to have visited the place of occurrence and also to have visited the bamboo clumps which was central theme and initial reason for quarrel between the brothers and is further supposed to have noted as to how many bamboos were cut or had not been cut. In absence of the evidence of the investigating officer these objective finding could not be brought on the record of the case creating a defect in the prosecution case which makes it further not appropriate for this Court to accept the story.

15. In view of the discussions of the evidence and probabilities arising from the facts and circumstances of the case, the Court finds that the informant was guilty of suppressing the true manner of occurrence and had probably placed a story which was different from the real occurrence having occurred and in that view of the matter, the prosecution case suffers from some material defect, as a result of which, the Court finds that it was a case in which the appellant ought to have been acquitted of the charge for which he had been found guilty.

16. In the result, the appeal succeeds and the same is allowed. The judgment of conviction and the order of sentence are hereby set aside. The appellant, Subhankar Jha is on bail. He shall stand discharged from the liabilities of his bail bonds.