- (1.) THIS appeal is directed against a judgment dated 19th March 1996 passed by the learned Sessions Judge, Purulia, in Sessions Trial No. 2 of 1993 arising out of Sessions case No. 74 of 1989 convicting the appellants Rupchand Mahato, Gauranga Mahato and Jitu Mahato and acquitting Shrimati Lalita Mahato for the charges punishable under sections 302 read with 34 IPC. The accused Rupchand and Gangadhar were also convicted under section 307 read with section 34 IPC. By an order dated 22nd march 1996 the learned Sessions Judge sentenced all the three accused to life imprisonment for life as also to pay a fine of Rs. 1000/- each under section 302 read with section 34 IPC, in default to undergo further rigorous imprisonment for a period of three months. The convicts Gangadhar and Rupchand were also sentenced to imprisonment for life for the offence punishable under section 307 read with section 34 IPC as also to pay a fine of Rs. 1000/- each, in default to undergo further rigorous imprisonment for three months. Both the sentences were directed to run concurrently.
(2.) BRIEFLY stated the facts and circumstances of the case are as follows:-On 27 August 1987 in the morning at about 7"o clock Kista Rajwar and his son bhiguram Rajwar went to their field. They excavated a nala (outlet) to bail out the excess water. When the excavation of the nala was almost complete and they were preparing to go back the accused Jitu, his wife Lalita and their sons Rupchand and gauranga, three of them armed with tangee (sharp cutting weapon), appeared on the scene and protested against the excavation of the outlet. After an initial altercation jitu, Rupchand and Gangaram inflicted fatal injuries on the head of Kisto, as a result thereof he died on the spot. The Autopsy Surgeon found the following injuries on the body of the deceased Kisto and deposed that anyone of the aforesaid injuries was in the ordinary course of nature sufficient to cause death. "1. One sharp cutting injury, 3"x2"x brain deep over the volt of the skull. Membrane and brain matter injured. 2. One sharp cut injury, 6"x2"x brain deep, over left tempero parietal region membrane and brain matter injured. 3. One sharp cut injury obliquely placed over right side of anterior aspect of upper part of neck, 3"x2"x bone deep. Carotid sheath with its contents cut, trachea cut and 3rd cervical vertebra cut. " Bhriguram, son of Kisto, was also severely wounded. The villagers shifted him to Kotshila Public Health Center where he was examined by Dr. Subhendu Roy who found as many as 8 injuries which are as follows:- "1. One lacerated injury, 5"x3", one inch above left ankle-skin subcutaneous fact fassa muscles and both tibia and fibula are severed causing compound communuted fracture. Magins are sharp. Fresh bleeding present from lateral side upto skin over the medial size. 2. One lacerated injury, 1"x "" X "th, one and half inches above mallatolar process of right tibia. Only skin is cut. 3. Lacerated injury, 1"" X "" X "", two inches below head of right fibula. Skin and subcutaneous tissue cut. 4. Lacerated injury, 1" X "" X "" over left phenar eminance, skin, subcutaneous-tissues and muscles are cut. 5. Lacerated injury 1"" X "" X "", one inch above left elbow over the lateral aspect of left arm, skin, subcutaneous tissue are cut. 6. Lacerated injury of 2" X 1" X "" over middle of right shoulder, skin, subcutaneous tissues and muscles are cut. 7. Lacerated injury, 1" X "" X "", half inch above right wrist, only skin over extensar aspect of right forearm cut. 8. Lacerated injury, 1"" X "" X "" one inch below of inferior angle of right scapula. Skin and subcutaneous tissues are cut. " according to Dr. Roy all the injuries were inflicted by sharp cutting weapon like tangee and were grievous in nature. Bhriguram was immediately sent to Purulia SD hospital where he was examined by Dr. Dilip Sen (P. W. 7 ). Opinion of the P. W. 7 as regards the injuries inflicted upon Bhriguram is as follows:-"from these injuries I have the impression that those were the result of some violent attack on the person of the victim. Such injuries might be caused by sharp cutting weapons like Tabla, tangies etc. " It appears from the evidence of the P. W. 7 that after the victim Bhriguram was treated in the Purulia Sadar Hospital for a week he was referred to Bankura Medical college for better treatment.
(3.) THE accused Lalita also received a cut injury above her left eyebrow which according to P. W. 6, Dr. Roy, was a simple injury. The accused Rupchand received a lacerated injury above the right-elbow over the anterior aspect which according to Dr. Roy (P. W. 6) was grievous in nature. Rupchand was also referred to Purulia Sadar hospital. He was treated there as an indoor patient and was discharged on 18th september 1987. P. W. 10, Sub-Inspector Subhajit Chowdhury got a telephonic message from the station Master, Jhalda Railway Station, intimating a clash and nothing more. Based on that information he went to the P. O. ; saw the dead body, cordoned off the place of occurrence; headed to the Kotshila Public Heath Center and interrogated Bhriguram rajwar who had already been hospitalized. He recorded the statement and on that basis a formal FIR was drawn and Jhalda P. S. Case No. 4 dated 27th August 1987 was started under sections 302,307, 326 read with section 34 IPC. P. W. 10 thereafter went to the Purulia Sadar Hospital and recorded the statement of Rupchand and on that basis drew up a formal FIR and started Jhalda P. S. Case No. 5 dated 27th August 1987 under section 326 read with section 34 IPC. The case and the counter-case were both tried. We are told that the counter-case arising out of Jhalda P. S. Case No. 5 dated 27th august 1987 resulted in acquittal and the case arising out of the Jhalda P. S. Case No. 4 dt. 27th August 1987 culminated in conviction as indicted hereinabove. Mr. Sengupta, learned Senior Advocate, assisted by Mr. Dey, learned Senior advocate, appearing for the appellants advanced the following submissions:- a) Place of occurrence has not been identified by the prosecution. This submission, in our view, is not factually correct. It would appear from the evidence of the P. W. 2 Hemola Rajwar "that the incident took place on the danga land which was by the side of our khet (paddy field)". From the sketch map which is Ext. 3, it appears that the place of occurrence is plot no. 849 which is a barren land. Danga land deposed to by the P. W. 2, in fact, means barren land. b) Second submission advanced by Mr. Sengupta was that the nala/outlet was excavated in the land belonging to the accused persons. He in support of his submission relied on the evidence of the P. W. 4 who deposed "i know that the paddy field was in possession of Jitu Mahato". This submission, in our view, is also factually incorrect. The sketch map, Ext. 3, the correctness whereof was not challenged, goes to show that the nala was excavated in the paddy field belonging to the deceased Kista. The defence may be interested in claiming title over the field possessed by the deceased. But that would not alter the fact that the nala was excavated in the field possessed by the deceased which had already been sown and plants were there for the safety of which the nala was excavated in order to bail out the excess water. c) The third submission advanced by Mr. Sengupta was that Kailash Rajwar had telephonically given the message as regards the clash as would appear from the evidence of the P. W. 10 but he was thereafter not contacted and therefore there is no knowing as to the contents of that information which according to the p. W. 10 was recorded into a GD Entry but that GD Entry was not produced. The contents of the GD Entry obviously were based on the basis of the information. What the information was we already know from the evidence of the P. W. 10. It was a message as regards a clash. It is this message on the basis of which the P. W. 10, Sub-Inspector of Police, had set out from the police station to work out the information. P. W. 10 was not called upon to produce the gd Entry. We therefore are not prepared to attach any importance to the absence of this GD Entry. d) The fourth submission advanced by Mr. Sengupta was that the accused persons in exercise of their right of private defence inflicted the injuries and for that they were not liable. He proceeded on the basis that the nala had been excavated in the paddy field belonging to the accused persons which we already have indicated is factually incorrect. Mr. Sengupta relied on a judgment in the case of Ananta Deb Singha Mahapatra and Ors. Vs. State of West Bengal reported in AIR 2007 SC 2524 for the proposition that it is not necessary for the accused to take the plea expressly that he had acted in self-defence. He relied on paragraph 10 of the judgment wherein the following view had been expressed:-'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 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 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, 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 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 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 and Ors. v. Delhi Administration, AIR 1968 SC 702; State of Gujarat v. Bai Fatima, AIR 1975 SC 1478; State of U. P. vs. Mohd. Musheer Khan, AIR 1977 SC 2226 and Mohinder Pal Jolly v. State of Punjab, air 1979 SC 577) 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 consequence of the assault. The oft quoted observation of this Court in Salim Zia v. State of u. P. ( AIR 1979 Sc 391) turns as follows: "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 is required to prove its case beyond reaosnable 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 for that plea in the cross examination of the prosecution witnesses or by adducing defence evidence. " Mr. Sengupta may be correct that the plea of self-defence need not be taken expressly provided the "circumstances show that the right of private defence was legitimately exercised". The accused is also bound to discharge "the burden of showing preponderance of probability in view of that plea on the basis of materials on record". The circumstances in this case go to show that the accused was seeking to enforce their supposed right in the concerned land which was in the possession of the deceased and they were really the aggressors.;