Monilal Mandi Vs. State of West Bengal - Court Judgment

Excerpt:
- partha sakha datta, j.1. this is an appeal preferred against the judgment and order of conviction of the appellant under section 307 of the i.p.c. and sentence to suffer rigorous imprisonment of 8 years with a fine of rs. 500/- in default to suffer rigorous imprisonment of six months passed by the learned assistant sessions judge, additional court, bankura on 13-9-1988 in s.t. 6(7)88 arising out of 17(4)88.2. six accused persons who faced trial before the learned assistant sessions judge under section 148/307/149 of the i.p.c. trespassed into the plot no. 345 belonging to ram chandra mandi by force and started ploughing it. when ram chandra went to resist them the accused persons hit him by an arrow which pierced through his shoulder resulting serious injury to him. the part of the weapon was still in the body and it could not be extracted out. this incident took place on the land of the injured at 8 a.m. on 26 8 1987.3. tills was the fir lodged by ram chandra mandi with the o.c. chhatna p.s. at 13.30 hours on 26-8-1987 whereupon chhatna p.s. case no. 4/41 dated 26-8-1987 was registered against the six persons under sections 147/148/149/447/325/326 of the i.p.c.4. upon completion of investigation charge sheet was submitted against the six accused persons under section 148/149/307 of the i.p.c. and the learned trial court framed charge against all the six accused persons including the one appellant chana alias motilal alias monilal mandi under the aforesaid section of law but upon conclusion of trial convicted the appellant alone under section 307, i.p.c. and acquitted the others of the charges by the judgment and order impugned.5. then are 14 witnesses of whom p.w. 1 is the injured who had lodged the fir. he says that on 19th of bhadra at 7/8 a.m. he and one mahadev (p.w. 3) were ploughing a field when he noticed the six accused persons ploughing his own allotted land being plot no 345 of mouza singargora. he protested when the appellant hit him by an arrow towards the right shoulder around the collar bone while two other accused namely sahab and marnnalha assaulted him by lathi. it appears from his cross-examination that hapan mandi and lilu mandi were two brothers. p.w. 1 is the son of hapan while haripada and sharnbhu were the sons of lilu. the accused persons are children of shambhu. there had been litigations between p.w. 1 and accused persons over the joint proper ties which were, however, settled amicably by amicable arrangement and according to p.w. 1 though the accused persons have their shares in plot no. 345 the portion which they were forcibly cultivating at the time did not belong to them because the same was allotted exclusively in his favour by amicable arrangement. however, he says that he had been in the hospital for 17/18 days where he was operated. he could speak to some extent only in his house after he was taken from the place of occurrence immediately after the occurrence and he could not understand at the time as to what was that. h6 tried to speak but could not do so fully. it was p.w. 13 sudhir kar who scribed the ejahar (ext. 3) wherein he put his l.t.i.6. p.w. 2 smt. churamoni mandi, the wife of p.w. 1 says that when her husband went to protest against the actions of the accused persons appellant pierced an arrow on the right hand shoulder region of her husband who fell down in the ground. at the material point of time she was washing utensils in a doba which according to her wan at distance of 30/40 cubits away from the land of her husband where the accused persons were ploughing. cross-examination of this witness did not reveal anything formidable and in fact on the fact-in-issue there was no cross-examination. p.w. 3 is mahadev murmu with whom p.w. 1 was ploughing and he (p.w. 3) says when p.w. 1 protested against cultivation of p.w. 1's land by the accused persons appellant chana hit p.w. 1 by an arrow. now, it has appealed in cross-examination of the witness when he came to the place of occurrence for the first time he saw that p.w. 1 had been lying down on the field and banking on this statement of the evidence it has been argued by mr. sana chowdhury, learned advocate for the appellant that this witness did not see the occurrence. p.w. 4 is one ajit kumar roy, who was a witness to the seizure of an arrow after it was extracted by operation from the body of p.w. 1 in the bankura sarnmilonl medical college and hospital. the arrow which was seized in the hospital was produced before the learned trial court at the time of trial and it was identified as material ext. 1 p.w. 5 is bostam murmu, according is whom, he was ploughing his own land at the intervention of three lands from the place of occurrence where and when the accused persons were ploughing the land of p.w. 1. as p.w. 1 protested he was then hit by an arrow by the appellant. in his cross-examination he has stated that his own land is situated to the east of the place of occurrence. he also has said in his cross-examination that when he reached the place of occurrence the injured had been already lying on the ground. p.w. 6 baidyanath besra, a neighbouring land owner was working in his land when the appellant was ploughing the land of p.w. 1. as p.w. 1 protested, the appellant threw an arrow as a result of which ram fell down on the ground. he says he, p.w. 8 rabi lochan, p.w. 7 somnath murmu, p.w. 5 bostom murmu and many others rushed there and the injured was removed to his home. p.w. 7 somnath murmu corroborates the evidence of p.w. 1 and other witnesses by saying that when p.w. 1 protested against the ploughing of his field by the appellant he was hit by an arrow by the appellant. evidence of p.w. 8 is important in more than one respect. not. only he had seen the incident of causing assault on p.w. 1 by the appellant by means of an arrow he was the person who took the injured home and after having the ejahar got written by p.w. 13 he took it to the chhatna p.s. and as it was raining and the buses could not be availed of timely there was short delay in handing over the ejahar to the police. he further says that the arrow by which the injured was assaulted was still then inside the body of p.w. 1 and he narrated the incident to the attending physician at the time of admission of p.w. 1 in the hospital. he was cross-examined at length but nothing came out to the benefit of the defence so far as the facts-in-issue are concerned. p.w. 9 dr. a.k. mondal who was then in the emergency ward of the bankura sammiloni medical college and hospital examination p.w. 1 and noticed that the patient had an elliptical incised surface wound, size 1' 1/4' approx. it was seen over the right infraclavicular region. depth of the wound was not determined and it was noted that it would be determined during operation. a portion of the arrow was found inside the wound. right side of the upper chest wall was swollen due to surgical emphysema. no active bleeding was present at the time of examination by him. the whole of chest was stained with clotted blood. the patient came to him with the arrow inside his body. he has stated in his evidence that patient party mentioned to him the names of the assailants. he has also stated that in the injury report it has been stated that the injury was caused by an arrow shot by chana mandi as stated by the patient party. in cross-examination the witness stated in reply to the question of the defence that the patient was not in a condition to state anything to him. p.w. 10 dr. s.k. mallick, the surgeon of the hospital says that at 5.30 p.m. on 26-8-1987 p.w. 1 was admitted under his care in the surgical ward and at 10.30 p.m. the patient was operated upon on the same day and an arrow was removed from the chest cavity. he further says the dimension of the injury was 3/4' 1/2 and the depth was uncertain. on 12-9-1987 the patient was discharged. the doctor has said the patient could have died if the said arrow had pierced a little more in the body of the patient. these pieces of evidence have remained unchallenged even though the witness was cross-examined. p.w. 11 is abdul rahaman, a circle inspector of land reforms who says that as per r.s.r.o.r. and k.b. settlement khatians appellant and p.w. 1 were co-sharers. he says that he made an enquiry as to the dispute but both the parties were absent during enquiry but during enquiry it appeared to him that the appellant took the first step for cultivation of the land. p.w. 12 mantu mukhi is a witness to the seizure of arrow made by i.o. in the hospital (ex. 2/2). p.w. 13 sudhir kar says that he scribed the ejahar (ext. 3). p.w. 14 r.a. sardar is the i.o. of the case.7. mr. chowdhury raised volley of questions which require to be addressed to. his first point is that the land belonged to the appellant and without any right p.w. 1 had come to the field to resist lawful cultivation of the land by the appellant and his men and the incident allegedly took place when the legal right to cultivate a man's own land was attempted to be thwarted by the illegal act of the fir-maker. mr. swapan kumar mallick, learned advocate for the state submitted that the entire argument of mr. chowdhury is beyond the evidence of the witnesses. having heard the learned advocate for the parties and perused the evidence on record which we have discussed above it appears that it is not a case where the appellant had to exercise a right of private defence. it is not a case where the p.w. 1 had illegally trespassed into the land of the appellant with a motive of cultivating it forcibly and caused assault on the appellant who then exercised his right of private defence. we do not know how in absence of both the parties p.w. 11, the circle inspector of land reforms could hold enquiry into the question as to who was the owner of the property. however, even if the evidence of p.w. 11 is taken at the face value it appears that both p.w. 1 and the appellant were co-sharers but according to p.w. 11 the appellant took the first step towards cultivation of the land. it is unchallenged evidence of p.w. 1 that though in plot no. 345 the appellant has share the portion which was being ploughed by the appellant was allotted to him (p.w. 1) by way of mutual arrangement. therefore, having read evidence of p.w. 1 with evidence of p.w. 11 it appears to us that p.w. 1 's share in the land remained unchallenged. when p.w. 1 noticed the appellant ploughing the field he raised protest and did nothing more. it was not an act of provocation on the part of p.w. 1 and the unchallenged evidence is that the appellant threw an arrow in the right shoulder of p.w. 1 causing him seriously injured. therefore, even if p.w. 1 was under mistaken conception that the land did not belong to the appellant the latter did not have any legal right to cause severe assault by means of deadly weapon causing serious injury without any amount of provocation.8. mr. chowdhury submitted that p.w. 3 and p.w. 5 have said that when they reached the place of occurrence they found p.w. 1 lying already on the ground. even if evidence of p.w. 3 and p.w. 5 is excluded from the purview of consideration it cannot be obliterated that they had seen the appellant in the field, and that they saw serious injury on the body of p.w. 1. p.w. 6 is a neighbouring land owner and his evidence is clear to the effect that when he was ploughing his land he found the appellant ploughing the field of p.w. 1 and when p.w. 1 protested the appellant threw an arrow which hit p.w. 1. his evidence has been corroborated by p.w. 7 and p.w. 8. he has said further that he, p.w. 5, somnath and p.w. 8 had come to the place of occurrence and with their assistance p.w. 1 was removed to his house. his own land was at the intervention of two/three pieces of land from the place of occurrence. his evidence could not be demolished by any amount of cross-examination. somnath murmu (p.w. 7) was then working in his field nearby the disputed land which was being ploughed by the appellant. he has said that when p.w. 1 protested the appellant pierced an arrow causing injury. this witness is not the relation of p.w. 1. as has been said earlier, p.w. 8 is the most important witness. he has seen the occurrence and his description is this that when p.w. 1 protested the appellant who was ploughing the field of p.w. 1 threw an arrow as a result of which p.w. 1 fell on the ground. he has corroborated p.w. 2 by saying that p.w. 2 the wife of p.w. 1 raised alarm from the bank of the doba and all of them took the injured p.w. 1 to his home. it was he who handed over the ejahar to the police station at chhatna. he has further said that the arrow by which the injured was assaulted was still then inside the body of p.w. 1. therefore, it is firmly established that it was the appellant who caused severe assault on p.w. 1 in the manner as said above.9. mr. chowdhury submits that the fir was a delayed one. we find no merit in the submission. occurrence took place at 8 a.m. on 26-8-1987 while fir was submitted at the police station on the very same day at 1.30 p.m. and the distance between the police station and the place of occurrence is 37 kilometers. p.w. 8 has further said that as it was raining and buses could not be availed of quickly there was short delay. in our opinion when fir was lodged written (within) five hours of the incident and the distance between the place of occurrence and police station is 37 kilometers there was no amount of delay at all.10. mr. chowdhury submitted that there was delay in despatching the fir to the court of learned sdjm. now, it appears from evidence as also the formal portion of the fir that the fir which was received at the police station in the afternoon of 26-8-1987 was despatched to the learned sdjm, bankura on the next day i.e. 27-8-1987 but it was placed before the learned sdjm on 29-8-1987. this sort of delay is negligible and it cannot be taken cognizance of particularly when i.o. was not questioned in cross-examination as to the cause of such delay. moreover, it is not established at all that the delay was due to manufacturing a got up case in the fir or of embellishments and colouring over the actual occurrence. in state of jammu and kashmir v. mohan singh : 2006crilj1691 it has been held that it is well settled that mere delay in sending the fir to the magistrate cannot be a ground to throw out prosecution case if the evidence adduced is otherwise found credible and trustworthy.11. mr. chowdhury argued that p.w. 1 has said that fir was written in his house. this stray statement in cross-examination does not lead us anywhere and having read the evidence of p.w. 8 who has said that p.w 13 was called by 'us' and instructed to scribe the ejahar it appears to us that the stray statement in cross-examination was made under pressure of cross-examination. moreover, it is not the evidence of p.w. 1 and p.w. 8 that they had gone to the house of p.w. 13 to have the ejahar scribed.12. the important argument has been made that neither in the fir (ext. 3). nor before the i.o. p.w. 1 has stated that he was assaulted by chana alias motilal alias monilal, the appellant herein. true, it was so, but we are to appreciate as to under what circumstances there was omission to particularize the name of the appellant either in the fir or before the statement to the i.o. it has to be noted here that the i.o. has said that on the very day of the receipt of the fir he has examined most of the witnesses. it again cannot be lost sight of the fact that the condition of the injured was such that on 26-8-1987 that he was unable to speak properly. it is in his cross-examination that he could speak to some extent only after he was taken to his house and he could not understand at that time as to what was what. he has further said that he tried to speak but could not do so fully. the statement on oath is coming out from the mouth of p.w. 1 not in his examination-in-chief but in cross-examination and it is in this perspective that we can clearly visualize that it was not possible for p.w. 1 to give details of assault either in the fir or before the i.o. who on that very day examined p.w. 1. p.w. 1 was still carrying the arrow in the clavicle region of his right shoulder and in agony of pain. and in such circumstance he put his l.t.i. on the fir. the i.o. has said that when he came to the place of occurrence the witnesses voluntarily came to him to state the facts. in the circumstances non-mention of the name of the appellant as assailant is of no consequence whatsoever. the important aspect of the matter which must warrant our notice is that in the matter of causing assault by means of an arrow on p.w. 1 by the appellant there has been no contradiction in statements of other witnesses and it could not be elicited by way of cross-examination of the witnesses that they did not state before the i.o. that it was the appellant who caused assault on p.w. 1 by means of an arrow. except p.w. 1 all the witnesses have said before i.o. that it was the appellant who was the assailant. in the circumstances, the submission of mr. chowdhury is of no avail. furthermore, the injured is an illiterate santhal belonging to scheduled caste and it cannot be expected of him that he should have knowledge as to what to write in the fir or that fir should contain all important details.13. it was argued by mr. chowdhury that in the fir there is no endorsement to the effect that it was read out and explained to p.w. 1. true, there was no endorsement in the fir that it was read out and explained to p.w. 1 but in the circumstance in which the fir was scribed it was not possible for p.w. 13 to read it out to p.w. 1 and it was not possible for the injured to express his eagerness to see as to what was written. the matter of the fact is that when p.w. 1 has substantiated the fir in his evidence before the court the factum of non-endorsement of the fact that fir was read out to him by p.w. 13 is insignificant.14. importantly, witnesses appear to be independent and there is no evidence that they bore any grudge or animosity with the appellant. right to cultivate does not confer right to take away one's life. it is in evidence of p.w. 10 that the patient could have died if the arrow pierced a little more. he has further said in his cross-examination that the patient could have died considering the depth of injury caused by means of an arrow as was seen by him in the body of the patient. the injury was no doubt in the vital part of the body. in ext. 4 the doctor has drawn a diagram showing the position and nature of injury and entry of the arrow in the clavicle region of the body of the injured. thoracotomy had to be done in the right 6th intercostal space and 6th, rib was removed. pleura had to be opened, and the chest cavity had to be closed surgically. it is firmly established that the injury was fatal one sufficient to take away the life of a person.15. a point was taken that the examination of the accused under section 313, cr.p.c. against the accused persons was defective. the point could have been accepted if the other five accused persons were convicted, but as the appellant was the sole convict the submission could not be accepted inasmuch as so far as the appellant is concerned relevant evidence was pointed to him in course of examination under section 313, cr.p.c.16. the question arose whether in the facts and the circumstances of the case it would be a case of offence under section 307, i.p.c. it is the intention, not the actuality of the injury that is the gist of offence under section 307, i.p.c. here in the instant case the intention to kill would prima facie appear, as is argued by mr. swapan kumar mallick, the learned advocate for the state, from the fact of user against p.w. 1 of arrow which is not an agricultural apparatus and which was not necessary to be taken to plough the field. as is evidenced from the evidence of p.w. 10, the gravity of injury was not merely grievous as a little more depth would have caused instantaneous death.17. another point which could have been urged is the legality of conviction against the appellant alone under section 307, i.p.c. when charged was framed against all the accused persons under section 307 read with section 141, i.p.c. with no individual and separate charge against the appellant under section 307, i.p.c. answer to such argument though not mooted lies in section 464(4), cr.p.c., and having regard to the facts, circumstances and evidence we do not think any failure of justice has been occasioned and the appellant has at all been prejudiced at the least.18. situated thus, the appeal fails, and as regards sentence, we do not find any cogent ground to interfere.10. we dismiss the appeal, and affirm the judgment and order of the learned trial court and direct that appellant to surrender before the learned trial court to serve out the sentence within a month from the date of the judgment failing which the learned trial court shall take appropriate steps to apprehend the appellant so as to have the sentence executed.20. criminal section is directed to send a copy of the judgment along with the l.c.r. to the learned trial court forthwith.