GANGA PRASAD NAEK Vs. BHAGWAT DEO

JUDGEMENT

(1.) This is an application in revision against an order of discharge passed by the Sub-Divisional Magistrate of Giridih under Section 209, Criminal P.C., in a case of alleged murder. On plot No. 888 in Mauza Bajania stands the landlord's kutchery. The mauza was shown in the last Survey and Settlement Records as in possession of the petitioner Ganga Prasad or "Gangu" Naik (or rather his ancestors) under a bhugtan mortgage, which was succeeded by several rehan or mukarrari deeds executed in his favour from time to time by some of the Deo accused or their Deo relations, these Deos being the proprietors of the village. In 1936 one Kupa Kumari of the Deo family died, and Katku Deo, one of the accused, claimed to have succeeded to her share. There have been several criminal proceedings between Ganga Naik and Deos regarding the possession of the village. On 4th September last, two of Gangu's men Bandhu Dusadh, a barahil, and Jhari Kahar, a menial, were at the kutchery in anticipation of the arrival of the patwari for the collection of rents, when they heard a hulla and found the accused Dwarka Lal coming up with the other accused (who are Deos) and some other persons. Upon the orders of Dwarka, Bhagbat Deo began to give blows with his phalsa, and Bandhu Dusadh warded them off with his lathi, which thus got cut into two pieces. He was next seized and surrounded, and Katku Deo gave him a barchha blow. Bandhu then came up to the verandah, where he fell down and soon expired. This was the prosecution story.

(2.) The first information drawn up in the case was one of murder against the four Deo accused and was recorded on the statement of a chaukidar who had not seen any of the occurrence himself. On the scene the police found the corpse of Bandhu. The usual post mortem showed that the death was due to shock and haemorrhage from a five inch deep punctured incised wound on the left side of the chest between the second and the third ribs, penetrating through the lung to its root--an injury which, according to the doctor, was probably caused by a sharp edged and pointed weapon such as a spear. After investigation the Sub-Inspector sent the accused up under Secs.302/326/109, Indian Penal Code. The important prosecution evidence related to the question of possession of Gangu Naik and the occurrence itself as seen by three eyewitnesses--Jhari Kahar, the menial who had accompanied the deceased Bandhu Dusadh to the kutchery, and Jhaman Deo and Rurki Singh who spoke of arriving on the scene on hearing the hulla before they ran away.

(3.) There was a counter-version given by the accused Gangu Deo in a first information lodged by him three hours or so after the information of murder lodged by the chaukidar and according to this counter-version, the Deos were in possession of the kutchchery, and 20 persons on behalf of Gangu Naik came, variously armed, and assaulted them. "Later on they (the Deos) came to know that Bandhua was killed." Three defence witnesses were called before the Magistrate, and only spoke of the possession of the accused over the village. The learned Magistrate found that the story of the three eye-witnesses was contradicted by what thejj; had stated earlier to the investigating Sub-Inspector. According to him there appeared "no good reasons to dispute the correctness of the record of their statements in the case diary" and he observed that "in any case the benefit of such earlier statements has to be given to the accused." These earlier statements included statements about how Gangu Naik's men had been turned out previously, and Gangu Naik's men were taken by the Magistrate to have failed on the question of possession in more than one proceeding under Section 107, Criminal P.C. Three of the Deo accused also had incised injuries on their persons, and the learned Magistrate took it that if the mob of Gangu Naik came armed with deadly weapons to dispossess the accused, the latter " had every justification in exercise of the right of their private defence to use as much force as it was necessary to defend their person and property. He considered the defence case to be much more reliable and probable than the prosecution case, and he came to the conclusion that the prosecution evidence was "neither sufficient nor satisfactory to establish even a prima facie case against the accused," that there would be no chance whatsoever of any conviction, and that accordingly there were no sufficient grounds for committing the accused to the Sessions.