# BISHNA@ BHISWADEB MAHA TO AND ORS v. STA TE OF WEST BENGAL

- **Citation:** [2005] Supp. 4 S.C.R. 892
- **Court:** Supreme Court of India
- **Decided:** 2005-10-28
- **Case number:** Criminal Appeal No. 1430- A 1431 of2003
- **Bench:** S.B. Sinha, R.V. Ra Veendran
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bishna-bhiswadeb-maha-to-and-ors-v-sta-te-of-west-bengal-20991
- **Pages:** 39

## Headnote

Penal Code, 1860-Seclions 3.:/, 109, 1.:/8, 302, 30.:/ Part-I, 324, 325
and 326-Murder and assault during altercation over property disputeC Complainants retreating but chased by accused variously armed-Injury
also caused to one accused based on which plea of selfdefence taken-Trial
court acquitting ail accused from charge of all offences, except one under
Section· 148 !PC, on grounds thal there was no explanation for tnjury on the
accused, absence of evidence of overt act by one who was accused of exhorting
others, and that responsibility for death of deceased and injuries to others
D was not fixed on any particular accused-High Court finding evidence of
eye-witnesses, especially injured ones, to be believable, upheld conviction/
sentence of all accused under Section 148 !PC, and further convicted/
sentenced them variously under Sections 34, 109, 302, 304 Part-I, 324, 325
and 326-Justification of-Held: Prosecution witnesses were believable and
creditworthy-Some witnesses were independent and disinterested-Absence
E of explanation about injury on accused was irrelevant as one of the
prosecution witnesses had stated in FIR that some of them might have assaulted
accused to save life-Non-acceptance of same in cross-examination found to
be an attempt to escape admission of guilt in a counter case filed by accusedAccused were aggressors and their plea of self defence of person was not
F acceptable as both the courts below had concurrently held them guilty under
Section 148 I PC, as also because they were armed fully, and assaulted
complainant party after chasing them-Plea of self defence of property not
acceptable as possession of impugned land was found to be with
complainants-Act of accused causing injuries to deceased and others found
to be in furtherance of a common intention-Judgment of High Court modified
G in changing conviclion of two accused fi-0111 offences under Sections 302134
and 3021109 to 304 Part 1 read with Section 34-Evidence Act,· 1872Section 6.
Evidence Act, 1872-Section 145-lt is attracted when a specific ,
H
892
BISHNA@BHISW ADEB MAHA TO v. STA TE OF WEST BENGAL
893
contradiction is required to be taken, but in certain cases omissions are also A
considered to be contradictions.
Criminal law-First Information Report-It need not be encyclopedia
of events-It is not necessary that all relevant and irrelevant facts should be
stated therein in detail.
Appellants-accused bought one part of a piece ofland. The other part of
that land from same seller was bought by complainants, who were prosecution
witnesses also. As complainant chlimed that they were also in possession of
B
the part sold to appellants and were cultivating same as bargadar of original
owner thereot; there was enmity between the two groups. One day, complainant~
found that some persons were cutting paddy from the said land in the presence C
of appellants who were variously armed. As they objected to same, there was
an altercation. There was exhortation by all accused to 'Maro Saladigoka'
(assault the salas). Complainant party retreated to some extent, but were
chased down. NM, PW-25 was hit on leg and back with spear by M, accused
no. 3 and H, accused no.7, was hit on head with lathi by B, accused no.2, and D
when he fell down, he was hit by accused no. 6 with sword causing injury on
his head. Other accused also assaulted him with lathi. P, elder brother of NM,
when he tried to save to him, was assaulted on leg with spear by M, and with
lathi by B. On exhortation of K, accused no 4, N, accused no. 1, and M to
finish otTP, R, accused no 9, took a spear from II and hit Pon his neck. Another
person, SM, PW-1, when he tried to save NM, he was assaulted by L, accused E
no. 7. C, PW-14, brother of P was hit on the head with arrow by B. On
exhortation of K to finish him off, N assaulted SM and C with lathi on their
head. P died because of the injuries. However, M was also injured during the
altercation, SM while going back home met LM, PW-16 and RM, PW-19 an

## Text

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A
B
BISHNA@ BHISWADEB MAHA TO AND ORS.
v.
STA TE OF WEST BENGAL
OCTOBER 28, 2005
[S.B. SINHA AND R.V. RA VEENDRAN, JJ.]
Penal Code, 1860-Seclions 3.:/, 109, 1.:/8, 302, 30.:/ Part-I, 324, 325
and 326-Murder and assault during altercation over property disputeC Complainants retreating but chased by accused variously armed-Injury
also caused to one accused based on which plea of selfdefence taken-Trial
court acquitting ail accused from charge of all offences, except one under
Section· 148 !PC, on grounds thal there was no explanation for tnjury on the
accused, absence of evidence of overt act by one who was accused of exhorting
others, and that responsibility for death of deceased and injuries to others
D was not fixed on any particular accused-High Court finding evidence of
eye-witnesses, especially injured ones, to be believable, upheld conviction/
sentence of all accused under Section 148 !PC, and further convicted/
sentenced them variously under Sections 34, 109, 302, 304 Part-I, 324, 325
and 326-Justification of-Held: Prosecution witnesses were believable and
creditworthy-Some witnesses were independent and disinterested-Absence
E of explanation about injury on accused was irrelevant as one of the
prosecution witnesses had stated in FIR that some of them might have assaulted
accused to save life-Non-acceptance of same in cross-examination found to
be an attempt to escape admission of guilt in a counter case filed by accusedAccused were aggressors and their plea of self defence of person was not
F acceptable as both the courts below had concurrently held them guilty under
Section 148 I PC, as also because they were armed fully, and assaulted
complainant party after chasing them-Plea of self defence of property not
acceptable as possession of impugned land was found to be with
complainants-Act of accused causing injuries to deceased and others found
to be in furtherance of a common intention-Judgment of High Court modified
G in changing conviclion of two accused fi-0111 offences under Sections 302134
and 3021109 to 304 Part 1 read with Section 34-Evidence Act,· 1872Section 6.
Evidence Act, 1872-Section 145-lt is attracted when a specific ,
H
892
BISHNA@BHISW ADEB MAHA TO v. STA TE OF WEST BENGAL
893
contradiction is required to be taken, but in certain cases omissions are also A
considered to be contradictions.
Criminal law-First Information Report-It need not be encyclopedia
of events-It is not necessary that all relevant and irrelevant facts should be
stated therein in detail.
Appellants-accused bought one part of a piece ofland. The other part of
that land from same seller was bought by complainants, who were prosecution
witnesses also. As complainant chlimed that they were also in possession of
B
the part sold to appellants and were cultivating same as bargadar of original
owner thereot; there was enmity between the two groups. One day, complainant~
found that some persons were cutting paddy from the said land in the presence C
of appellants who were variously armed. As they objected to same, there was
an altercation. There was exhortation by all accused to 'Maro Saladigoka'
(assault the salas). Complainant party retreated to some extent, but were
chased down. NM, PW-25 was hit on leg and back with spear by M, accused
no. 3 and H, accused no.7, was hit on head with lathi by B, accused no.2, and D
when he fell down, he was hit by accused no. 6 with sword causing injury on
his head. Other accused also assaulted him with lathi. P, elder brother of NM,
when he tried to save to him, was assaulted on leg with spear by M, and with
lathi by B. On exhortation of K, accused no 4, N, accused no. 1, and M to
finish otTP, R, accused no 9, took a spear from II and hit Pon his neck. Another
person, SM, PW-1, when he tried to save NM, he was assaulted by L, accused E
no. 7. C, PW-14, brother of P was hit on the head with arrow by B. On
exhortation of K to finish him off, N assaulted SM and C with lathi on their
head. P died because of the injuries. However, M was also injured during the
altercation, SM while going back home met LM, PW-16 and RM, PW-19 and
others, informed them about the incident, and returned back to the spot with p
them. SM and C later lodged FIR about the incident.
Upon completion of investigation, charge sheet was filed against appellant
for commission of various offences. Defence of the accused was that they were
the owners of the impugned land, and as one of them was attacked and
sustained injuries, they exercised the right.to private defence.
G
Trial court acquitted the appellant's from commission of all offences
except one under Section 148 IPC inter alia holding that: (i) the eye-witnesses
cannot be relied upon as injury of M had not been explained by prosecution:
(ii) there was no evidence on any overt act by K (iii) prosecution failed to fix
the responsibility for the death of P and injuries to NM, C and SM on any H
894
SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.
A particular accused. Consequently, all the accused were sentenced to undergo
rigorous imprisonment for 3 years under Section 148 IPC.
State as well as appellants preferred appeals to High Court against the
judgment of Trial Court. The High Court, while allowing State's appeal and
dismissing appellant's appeal, held that there was no reason to disbelieve the
B evidence of the eye-witnesses and in particular the injured witnesses. It found
that there was no dispute that LM and RM came immediately after the
occurrence. There was sufficient evidence to support incitement given by K.
In addition to upholding conviction and sentencing all the accused under
Section 148 IPC, the High Court convicted K under Section 302 read with
C Section 109 IPC; M, B and R under section 302 read with Section 34 IPC;
and sentenced the four of them to undergo rigorous imprisonment for life.
M, H, Rand P were convicted under Section 326 read with Section 34 of the
IPC and were sentenced to undergo rigorous Imprisonment for five years. B
was convicted under Section 324 read with Section 34 of the IPC and was
sentenced to undergo rigorous imprisonment for two years. L was convicted
D for commission of an offence under Section 325 IPC and was sentenced to
undergo rigorous imprisonment for three years. P was convicted of an offence
under Section 324 and was sentenced to undergo rigorous imprisonment for
two years. In regard to M and C, the decision of the Trial Court was not
disturbed. Hence the present appeal.
E
F
Appellants contended that the evidence of eye-witnesses including
injured witnesses could not be believed as (i) their description of the incident
was graphic and (ii) that they retreated towards east while the incident took
place towards south of the plot in dispute.
Disposing of the appeal, the Court
HELD: 1. Considered as a whole, the evidence of the prosecution
witnesses is found to be clear and cogent. They are consistent and creditworthy.
Some of the witnesses are independent and disinterested. There may be certain
omissions on their part but if considered as a whole and in particular with
G the medico-legal evidence, there is no reason to disbelieve the same. (911-D(
Arjun and Ors. v. State of Rajasthan, AIR (1994) SC 2057 and
Navganbhai Sombhai and Ors. v. State of Gujarat, (1994) SC 1187, referred
to.
H
2.1. The presence of the accused with deadly weapons at the place of
BISHNA@BHISWADEB MAHA TO 1•. STATE OF WEST BENGAL
895
occurrence and the fact that they had been harvesting the paddy grown by the A
complainant being not in dispute, there is absolutely no reason as to why the
account of the prosecution witnesses should be discarded particularly when
sufficient material have been brought on record to show that despite the fact
they retreated to some extent, they were chased and the accused caused death
to P and injuries to others which would lead to only one conclusion that the
said act was in furtherance of their common intention. (911-8)
B
2.2. When an incident takes place in a village in the morning and that
too at the harvesting time, presence of the villagers and in particular those
who claim right, title, ownership as well as possession of the land in question
is not unnatural. An occurrence took place on the previous day. The witnesses C
did not say that they had run away from their land to some other place. They
merely said that they retreated to some extent and thereafter they were chased.
The assault on the deceased as also other prosecution witnesses took place
almost at the same place. The investigating officer found the dead body of P
as also NM in an unconscious condition near about the same place.
[910-G, H; 911-A) D
3.1. Evidence of PW-I, PW-14, PW-18, PW-25 and also other
independent witnesses points out the overt acts played by each one of the
accused is also not in dispute. Nothing has been brought to show that the
presence of the eye-witnesses who were independent witnesses are wholly
unreliable. [909-A[
E
3.2. Besides the eye-witness, two more witnesses, PWs 16 and 19 were
examined by the prosecution. They came to the place of occurrence
immediately after the incident had taken place and found the dead body of P
and injured Nin an unconscious state. PW-16 found the mother of P and N F
weeping as also C and S present there. He heard about the entire incident
from C including the role played by each of the appellants and others. PW-19
also corroborated the testimonies of the prosecution. He heard about the
incident from SM. The evidence of these two witnesses corroborate the
evidence of the prosecution witnesses as also the allegations made in the FIR.
Their evidence is admissible in terms of Section 6 of the Indian Evidence Act. G
The evidence of other independent witnesses who are inimically disposed of
towards the accused is sufficient to concur with the findings of fact arrived at
by the High Court. [909-8, C, D]
4.1. The High Court noticed that the evidence of PW-3 and PW-25 had
not been put to test of cross-examination, in that behalf. It found that PW-3 H
896
SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A has not been subjected to any cross-examination at all in regard to his
statement that R took a spear from H and with it hit the deceased. (910-E)
B
4.2. Section 145 of the Indian Evidence Act is attracted when a specific
contradiction is required to be taken, but in certain cases omissions are also
considered to be contradictions. (910-CJ
Shri Gopal and Anr. v. Subhash and Ors., JT (2004) 2 SC 158, Sekar
alias Raja Sekharan v. State Represented by Inspector of Police, TN., (2002)
8 SCC 354 and State of Maharashtra v. Bharat Chaganlal Raghani and Ors.,
(2001) 9 SCC l, relied on.
5.1. About incitement by K, five witnesses, namely, PW-18, PW-13, PWC 14, PW-18 and PW-25 categorically stated the role played by K where after
only R took a spear from H and assaulted Pat his neck. 1913-BJ
5.2. The First Information Report need not be encyclopedia of the events.
It is not necessary that all relevant and irrelevant facts in details should be
D stated therein. In the First Information Report, it has been specifically stated
that KM was standing behind armed with a gun and when they objected, all
the accused persons attacked the prosecution witnesses saying 'Maro
Saladigokay' (assault the salas). The prosecution witnesses in their
statements before the court had categorically stated that KM also exhorted
more than once. It may be true that he had no axe to grind. He was not claiming
E ownership of the plot in question; but there are materials on record to show
that the complainant party and the accused belong to two rival political groups.
Thus, KM might have a political score to settle, as otherwise it is difficult to
accept that although those claiming the ownership of the land in question
would go there with lathis, he would be present at the spot with a gun.
F
(913-F, G, HJ
6. PW-1, PW-14, PW-18 and PW-25 categorically stated that all the
accused persons shouted "marosaldiga". The depositions of the said witnesses
clearly establish that the accused persons armed with deadly weapons went to
the plot of the complainant party with a common intention to harvest the paddy
G and when asked not to do so they were attacked and when they retreated to
some extent, accused chased and caused injuries to the deceased and other
witnesses. This clearly establishes that the said act was in furtherance of a
common intention. 1913-B, CJ
7. Contention of appellant that serious injuries on the accused M have
H not been explained, is not acceptable. PW-I in FIR has stated that some of
BISHNA@BHISWADEB MAHA TO v. STATE OF WEST BENGAL
897
·them may have assaulted the accused with lath is in order to save life. The A
witness indisputably in their cross-examination did not accept the said fact
presumably because they were accused in the counter-case presumably on
the premise that if they admitted the same, they would have accepted their
guilt. It is now well settled, that it is not imperative to prove the injuries on
the person of the accused irrespective of the facts and circumstances of the
case including the admitted facts. Normally such plea is entertained when B
the right of self defence is accepted by the court. (914-C, D, El
Bankey Lal and Ors. v. The State of U.P., AIR (1971) SC 2233 and Amar
Malla and Ors. v. State of Tripura, (2002) 7 SCC 91, referred to.
Lakshmi Singh and Ors. v. State of Bihar, (19761 4 SCC 394, Dasrath C
Singh v. State of U. P., (20041 7 SCC 408, Shriram v. State of MP., [20041 9
SCC 292 and Mohar Rai v. State of Bihar, AIR (1968) SC 1281, distinguished.
8.1. The prosecution evidence clearly establishes that land was in
possession of J, who was bargadar of seller, and father of P, CM and NM.
D
[913-EI
8.2. There is concurrent finding of both the courts below that the accused
were guilty of commission of an offence under Section 148 IPC. The fact that
they were aggressors and initiated the attack on the deceased and other
witnesses on the land in question and thereafter at the bed of tank, thus stands E
established. (917-BI
8.3. Once it is established that the complainant party was in possession
of the land in question as also cultivated the same and grew paddy thereupon
the question of the appellant's exercising right of private defence as regards
property does not arise. Such a right could only be claimed by the complainant. F
So far as the purported right of private defence of a person is concerned, it
has been proved beyond any shadow of doubt that the accused were the
aggressors. They came to the land in question to harvest paddy through hired
labourers. They were armed fully when they were asked not to harvest paddy,
they chased and assaulted the prosecution witnesses. In this situation, the G
appellants were not entitled to cla1m right of private defence. (923-D, E]
8.4. As the appellants herein and other accused persons were
aggressors, no right of private defence could be claimed by them particularly
when it has been proved beyond any reasonable doubt that the prosecution
witnesses were first chased and then assaulted. (913-D)
H
898
SUPREME COURT REPORTS (2005] SUPP. 4 S.C.R.
A
8.5. It may be true that the right of private defence need not specifically
be taken and in the event the court on the basis of the materials on record is
in a position to come to such a conclusion, despite some other plea had been
raised that such a case is made out, may act thereupon. (912-CI
Subramani and Ors. v. State ofT.N., 1200217 SCC 210, Dharminder v.
B State of H.P., (20021 7 SCC 488, Takhaji Hiraji v. Thakore Kubersing
Chamansing, (2001] 6 SCC 145, laxman Singh v. Poonam Singh and Ors.,
(2004110 SCC 94 and Chacko alias Aniyan Kunju and Ors. v. State of Kera/a,
(2004] 12 sec 269, referred to.
Vajrapu Sambayya Naidu and Ors. v. Stale of A.P. and Ors., [2004110
c sec 152, distinguished.
9.1. It is difficult to reconcile sentence passed by High Court If common
intention of an offence under Section 149 or 34 IPC was to be invoked, the
same should have been invoked against those who shared common object/
D intention. The High Court has also not assigned any reason as to why M, 8
and RM have been found guilty under Section 302/34 IPC and not under
Section 302/149 IPC. [930-AI
Raghunath v. State of Haryana and Anr .. [200311 SCC 398, Mirazi and
Anr. v. State of UP., [19591 Supp. I SCR 940, Masaltiv. State ofU.P., [19641
E 8 SCR 133, Baladin v. State of Uttar Pradesh, AIR (1956) SC 181, Bhajan
Singh and Ors. v. State of Uttar Pradesh, 1197414 SCC 568, Shri Gopal and
Anr. v. Subhash and Ors., JT (2004) 2 SC 158 and Ram Taha! and Ors. v. State
of UP., (197211SCC136, referred to.
9.2. Although in this case right of private self defence was not.
F exercisable, having regard to the peculiar facts and circumstances of the case,
the possibility of the Appellants committing the crime without any intention
to cause death cannot be ruled out. [930-81
9.3. Keeping in view the peculiar facts and circumstances of this case,
Appellant Nos. I and 2 should be convicted for an offence under Section 304
G Part l read with Section 34 IPC instead of 302/34 and 3021109. They are
directed to undergo a sentence of rigorous imprisonment for seven years.
The conviction and sentence of Appellant Nos. 3, 4, 5 and 6 by the High Court
is not dMurbed. The judgment of conviction and sentence of the Appellants
under Section 148 is upheld. [930-C, DJ
H
BISHNA@BHISW ADEB MAHA TO v. ST A TE OF WEST BENGAL (SINHA. J]
899
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1430- A
1431 of2003.
From the Judgment and Order dated 10.10.2002 of the Calcutta High
Court in Crl.A. Nos. 202 and G.A. No. 29 of 1989.
Jaideep Gupta, Anand, Vishal Arun, Debmalya Banerjee, D. Bharat Kumar B
and Abhijit Sengupta for the Appellants.
Tara Chandra Sharma and Ms. Neelam Sharma for the Respondent.
The Judgment of the Court was delivered by
S.B. SINHA, J. Bhadsa is a small village situate at a distance of 12 kms.
from the district headquarters known as Purulia in the State of West Bengal.
c
On 1.12.1982, Prankrishna, deceased and Chepulal (PW-14) heard some sounds
coming from the side of their Shivatara land situate in the said village. They
informed their brother Nepal Mahato (PW-25) about the same. They also
informed Haradhan Mahato (PW-2) and who in tum informed Subhas Mahato D
(PW-13). When the three brothers were proceeding towards their land, Sambhu
Mahato (PW- I) met them on the road. When they reached near the land in
question, being Plot No. 550, they found some persons were engaged in
cutting of paddy therefrom. Nilkantha, Bhiswa alias Bishna, Manmatha alias
Mathan, Kalipada, Bulu, Pata!, Lalbas, Haralal, Ramanath, Majhi, Chinbas alias E
<'rinibas (Accused Nos. I to 11 respectively) were standing on the ail (Ridge
,in the agricultural land). The accused persons were variously armed. They
were asked not to cut paddy but did not pay any heed thereto. Altercations
started. All of a sudden, Bulu (Appellant No. 3) threw an arrow which struck
Nepal Mahato (PW-25). They also exhorted shouting "Marsaladiga". The
complainant party retreated to some extent. They were chased near the bed F
of tank called 'upper bundh'. Nepal Mahato (PW-25) was surrounded by the
accused. He was hit on his left leg with tabla by Mathan whereas Haralal hit
him with a tabla on his back. Bhiswa (Appellant No. I) assaulted on his head
with a lathi. He fell down on the ground whereupon Pata! struck him with a
sword causing injury on his hand. Ramanath and Nilkantha assaulted him G
with lathi. Prankrishna, deceased rushed to save his younger brother whereupon
he was assaulted by Mathan on his right leg with tabla and Bhiswa with lathi.
Sambhu Mahato protested to such assault on the deceased whereupon Lalbas
assaulted him with a lathi. Kalipada (Appellant No. 2) and Nilkantha and
Bhiswa (Appellant No. I) exhorted that he should be finished whereupon
Ramanath took a tabla from Haralal and struck the deceased at his neck. The H
900
SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A deceased succumbed to his injuries. Further, Bulu threw arrow which struck
Chepulal at his head and Kalipada gave order to finish him whereupon
Nilkantha assaulted Sambhu (PW-I) and Chepulal (PW-14) with lathies in
their hand.
Sambhu Mahato (PW-I) came to the district town of Purulia to hire a
B vehicle for shifting the injured persons to Purulia Sadar Hospital. In the
meantime, the officer-incharge (PW-28) of the Police Station, Purulia received
a telephonic message that some incident had taken place in the village. He
entered the said information in the diary being G.D. Entry No. I 7. He thereafter
reached the village round about at I 1.40 a.m. and noticed the dead body of
C Prankrishna, deceased lying at eastern extremity of the said tank. J.L. Pahari,
a sub-inspector of police who accompanied the officer-incharge held the
inquest on the dead body. Nepal Mahato (PW-25), who was lying unconscious,
was brought to Purulia Hospital in the hired vehicle. He was accompanied by
Chepulal Mahato. Nepal Mahato was admitted in the said hospital. Sambhu
Mahato and Chepulal thereafter went to the police station and lodged a first
D information report.
Upon completion of the investigation, 11 persons named in the first
information report were chargesheeted for commission of various offences.
It is also not in dispute that one of the accused, namely, Mathan also
E sustained injuries on his person. The defence of the Appellants and other
accused was that they were the owner of the plot No. 550 of the said village
wherein as one of them was attacked and sustained injuries, they exercised
the right of private defence.
F
The learned Trial Judge acquitted the Appellants and others for
commission of all offences except one under Section 148 of the !PC inter alia
holding that : (i) the eye-witnesses cannot be relied upon as injury of Mathan
(Accused No.3) had not been explained by the prosecution; (ii) and there was
no evidence of any overt act by Kalipada; and (iii) the prosecution had failed
to fix the responsibility for the death of Prankrishna and injuries to Nepal,
G Chepulal, Siju and Sambhu, on any particular accused. Consequently the Trial
Court sentenced all the accused to undergo rigorous imprisonment for 3 years
under Section I 48 IPC.
The appeals were preferred thereagainst both by the State of West
Bengal as also by all the accused (except Ramanath, who it is stated has
H absconded). The High Court in its impugned judgment, on the other hand,
-
BISHNA@BH!SWADEB MAHA TO v ST A TE OF WEST BENGAL [SINHA, J .]
90]
held that there is no reason to disbelieve the evidence of the eye-witnesses A
and in particular the injured witnesses. Lalbehari Mahato (PW-16) and Ramduial
Mahato (PW-19) came immediately after the occurrence and as such their
presence at the scene of the occu1rence cannot be disputed. Incitement by
Kalipada was found to be existing and there was sufficient evidence in
support thereof.
The High Court allowed the State's appeal. In addition to upholding the
conviction and sentencing of all the accused under Section 148 !PC, the High
Court convicted the Appellant Kalipada under Section 302 read with Section
B
I 09; Mathan, Bhiswa and Ramanath under Section 302 read with Section 34;
and sentenced the four of them to undergo rigorous imprisonment for life. C
Mathan, Haralal, Ramanath and Pata! were convicted under Section 326 read
with Section 34 of the !PC and were sentenced to undergo rigorous
imprisonment for five years. Bulu was convicted under Section 324 read with
Section 34 and was sentenced to undergo rigorous imprisonment for two
years. Lalbas was convicted for commission of an offence under Section 325
of the !PC and was sentenced to undergo rigorous imprisonment for three D
years. Pata! was convicted of an offence under Section 324 and was sentenced
to undergo rigorous imprisonment for two years. The appeal preferred by the
Accused from the judgment and conviction under Section 148 of the IPC was
dismissed. In retard to Mahji and Chinibas, the decision of the Trial Court was
not disturbed.
The accused Nilkantha passed away during the pendency of the appeal
before the High Court. After the judgment of the High Court, Mathan has also
died. Ramanath did not prefer any appeal against the judgment of the trial
Court or the High Court, nor did Mahji and Chinibas.
Bishna, Kalipada, Bulu, Pata!, Lalbas and Haralal (Accused Nos. 2, 4,
5, 6, 7 & 8) who have been convicted by the High Court are before us.
Before adverting to the rival contentions, we may notice the admitted
facts, which are:
E
F
Plot No. 550 is situate in the village Bhadsa measuring 1.05 acres. It G
belonged to Kartick Chodhury. Indisputably, 0.65 acres of the said land had
been purchased by the complainants party and they were in possession
thereof. In respect of balance 0.40 acres, the accused persons laid a claim that
they had been cultivating the same as bargadar of the original owner. The said
0.40 acres of land was purchased by Neelakanta, Manmath and Bhiswa under H
902
SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A a sale deed executed by Kartick Chodhury.
It is also not in dispute that proceedings under Section 145 of the Code
of Criminal Procedure (for short "the Code") was initiated before an Executive
Magistrate at the instance of the complainants and he had passed an order
that they were to continue in possession of the land in question. On a criminal
B revision having been filed by one of the Appellants, the said order was set
aside and the matter was remitted for a fresh finding in accordance with law.
The finding of fact arrived at by the courts below is that there was no
demarcation between the land purchased by the complainants and the land
purchased by the Appellants, which the complainants were claiming to have
C been in their possession. The complainants cultivated the said land and grew
paddy thereupon.
Enmity between the two groups about the possession of the said land
is also not in dispute. A concurrent finding of fact has been arrived that the
D allegations made against the Appellants under Section 148 of the IPC for
forming an unlawful assembly has been established.
Despite the same, Mr. Jaideep Gupta, learned senior counsel appearing
on behalf of the Appellants would submit that the said finding should not
be sustained by us as the place of occurrence had not been established by
E the prosecution, as according to the Appellants the incident had taken place
in their own land, namely, plot No. 674 and 669.
Mr. Gupta would urge that the prosecution furthermore had not been
able to prove that Joyram, father of Prankrishna, Chepulal Mahato and Nepal
Mahato, was a bargadar in relation to the 40 decimals of land and cultivated
F the same. Joyram has also not been examined as a witness.
We do not find any reason to arrive at a different finding that Joyram
and his sons were not in possession of the land in question as bargadar and
had cultivated the same.
G
In relation to commission of the offences under Section 302 and Sections
323 to 326 of the IPC, Mr. Gupta would urge:
(i) The witnesses' account were unnatural insofar as their statements
are almost photographic in nature which should not be accepted as admittedly
they have run away from the place of occurrence being in a state of fear. The
H description of the incident given by the witnesses is also suspect as some
BISHNA@BHISWADEBMAHATOv STA1:EOFWESTBENGAL[SINHA,J]
903
of the statements made by them had not been disclosed to the investigating A
officer as would appear from the evidence of the investigating officer.
(ii) The prosecution having not explained the injuries of the accused
Mathan, adverse inference must be drawn against the prosecution in view of
the decision of this Court in Lakshmi Singh and Ors. v. State of Bihar, (1976]
4 SCC394.
B
(iii) The evidence of the Gandhi Mahatani (PW-22) suffering from serious
infirmities cannot be relied upon.
(iv) There is no sufficient evidence to show that Kalipada incited any
person to cause death of Prankrishna, deceased nor any evidence has been C
brought out to establish that any assault took place in furtherance of a
common intention.
(v) The judgment of the High Court suffers from a serious infirmity
insofar as it held that"before proving the contradictions it was necessary for D
the defence to put the said statements to the prosecution witnesses while
cross-examining them particularly in view of the fact that a suggestion was
given that they had been deposing falsely. Section 145 of the Evidence Act,
in a situation of this nature, will have no application inasmuch as what was
sought to· be established by the defence was that the witnesses had made
statements in the course of the trial which had not been stated by them before E
the investigating officer and, thus, the defence did not want to bring on
records any contradictions made by the witnesses.
(vi) The High Court further fell in error as it failed to take into
consideration that the prosecution witnesses approached the place of
occurrence from the eastern side whereas the accused were chasing them F
from the western side, and as such they were attacked, they must have run
away towards the east but yet the deceased was found near the upper bundh
which admittedly was situated in the northern side of the paddy field. Our
attention in this behalf has been drawn to the statements of Sambhu Mahato,
Ambuj, Subhas Mahato who stated that they had been running towards G
south.
(vii) A further infirmity has been committed by the High Court in
arriving at its finding without considering the fact that the injuries on the
person of Mathan had not been explained despite statements made in the first
information report to the effect that one or two members of the complainants H
904
SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A side had lathi with them and might have assaulted some of the aggressors
in order to save their lives, but the same could not have been relied upon
inasmuch as at the trial all the witnesses denied thereabout.
(viii) The seriousness of injury on the person of Mathan is evident from
the statements of the investigating officer that he was lying unconscious so
B much so arrangements were made to record his dying declaration and in fact
a dying declaration was recorded by a Magistrate on the night of l.12.1982.
A right of private defence, thus, could validly be exercised by the Appellants
and others.
(ix) So far as Kalipada is concerned, there is nothing on records to show
C that he inflicted any blow on Prankrishna, deceased. He was not involved in
any land dispute between the parties and, thus, could not have derived any
benefit therefrom. There was no allegation that he had been leading the
group. He .did not make any exhortation. At the first instance and the
exhortation "finish the salas" as. ascribed to him by the eye witnesses did not
D find place in the first information report. In any event, no blow appears to
have been struck on the deceased after Kalipada made the said exhortation.
E
F
(x) At all events, even if the entire prosecution evidence is accepted,
the conviction could have been only under Section 307 or 304 and not under
Section 302.
(xi) So far the Appellant, Bhiswa, is concerned, the prosecution has
merely established that he inflicted a blow on Prankrishna on his leg which
was not the cause of his death and as such that no common intention could
have been formed at the spur of the moment by him and other accused as
regard murder of Prankrishna.
Mr. Tara Chandra Sharma, learned counsel appearing on behalf of the
State, on the other hand, took us through the evidence of the witnesses and
would contend that the reasonings given by the Trial Court in not relying
upon the eye-witnesses are based up conjectures and surmises as well as on
G misreading of evidence on record inasmuch as:
(i) the prosecution witnesses are natural and truthful and they have
given the true version of the occurrence;
(ii) non-explanation of the injuries on the .accused (Mathan alias
H Manmath) by the prosecution by itself may not affect the prosecution case
BISHNA@BHISWADEB MAHA TO r. STATE OF WEST BENGAL [SINHA, J]
905
in its entirety, particularly, when the evidence led by the prosecution is A
absolutely clear and cogent;
(iii) the prosecution case is consistent with the facts disclosed in the
first information report. During investigation, the weapons of assault were
seized, blood-stained earth from the place of occurrence was recovered and
the evidence of the doctors who held the autopsy as also those who examined B
the injured eye-witnesses, namely, PW-I, PW-14, PW-18 and PW-25 fully
supported the prosecution case;
(iv) the Trial Court wrongly excluded the evidence of Sambhu Mahato
(PW-I), Subhas Mahato (PW-13), Chepulal Mahato (PW-14), Siju Mahato
(PW-18) and Nepal Mahato (PW-25) in arriving at a finding that Kalipada did C
not incite any person to cause the death of the deceased which is perverse
in nature. It was submitted that before the evidence of the prosecution as
regard improvements made by them from the statements made under Section
161 of the Code of Criminal Procedure can be challenged, it was incumbent
upon the defence to confront the prosecution witnesses therewith in view of D
Section 145 read with sub-section (3) of Section 155 of the Evidence Act. As
Kalipada was carrying a gun whereas other accused persons were armed with
various deadly weapons, namely, lathi, tabla, bow, arrows and sword and as
such the judgment of the High Court be faulted.
The basic fact of the matter is not in dispute. Presence of all the E
prosecution witnesses except PW-22 is not seriously disputed. The only
criticism levelled against the eye-witnesses including injured witnesses is : (i)
that of graphic description of the incident has been given by them; and (ii)
that they retreated towards east and the incident took place towards south
of the plot in dispute.
F
It is also not in dispute that as regards injury on the person of accused
Mathan, a counter-case was filed. Strangely enough, the defence had not
brought the said first information report on record. The said counter-case is
said to be pending trial. The prosecution in this case examined 32 prosecution
witnesses. PW-I, PW-14, PW-18 and PW-25 are injured eye-witnesses whereas G
PW-2, PW-3, PW-13 are eye-witnesses. As the testimony of PW-22 is disputed
on the ground that she could not have been an eye-witness, it may not be
necessary to the consider the same.
The death of Prankrishna and the injuries sustained by the prosecution
witnesses have indisputably been proved by Dr. D.L. Kar, who examined H
906
SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.
A Chepulal Mahato (PW-14 ), Dr. S. Chatterjee, who conducted post mortem on
the body of Prankrishna. Dr. Ajoy Kumar Pakrashi (PW-31) who was on
emergency duty on that day examined Nepal Mahato (PW-25). He indisputably
was admitted as an indoor patient in Purulia Sadar Hospital, under the
supervision of Dr. Amal Kumar Ghosh, from LI 2. 1982 and was discharged
B from the hospital on 24. 12. 1982. Dr. Amal Kumar Ghosh could not be examined
as after he left the government service his whereabouts were not known. Dr.
S. Chatterjee (PW-6) proved the handwritings of Dr. Pakrashi and Dr. Amal
Kumar Ghosh from the records of the hospital.
Sambhu Mahato (PW- I) gave a categorical statement inter alia to
C prove the prosecution case in the following terms:
D
E
F
G
H
"The alleged/incident took place on 1.12.82 at about 8/8JO A.M. in
Mouza Bhadsa within Purulia (M) P.S. I was present in the vegetable
field near my house at Bhadsa. I heard a cry coming from the western
side of our village. I came to village road. I met Nepal, Prankrishna and
Chepulal on the road. I heard from them that Nilkantha Mahato and
some other persons were cutting paddy in their barga land. They
requested me to protest against it. Accordingly, I accompanied them
to their barga land mouza Bhadsa. I found many persons cutting
paddy in the barga land of Joyram Mahato. I found there Nilkantiia
Mahato, Mathan Mahato, Bhisma Mahato, Haralal Mahato, Ramanath
Mahato, Pata! Mahato, Srinibash Mahato. Lalbas Mahato, Kalipada
Mahato, Bulu Mahato and Majhi, Sahis being armed with lathi, tabla,
arrows etc. present near the barga land. Nilkantha, Bishma, Srinibash,
Ramanath Majhi Sahis had lathi is in their hand. Haralal and Mathan
had tabla. Pata! had sword. Bulu had bow and arrows, Kalipada
Mahato had gun. Some labourers were cutting paddy. I cannot say
their names. We protested against such cutting of paddy. An
altercation started. Then Bulu threw arrow. It struck Nepal. He was
then standing on the barga land. The arrow struck the mouth of Nepal.
Blood was coming out from the mouth of Nepal. Then all persons
named above, shouted 'maro saladiga'. These persons then chased
us. We retreated to some extent. There is a tank namely 'uppar bundh'
contiguous to the barga land. Nepal was gheraoed at the bed of the
tank by these persons. Mathan then struck Nepal with a tabla causing
injury at his leg. Nepal fell down on the ground. Pata! struck Nepal
with a sword causing injury at his hand. Haralal struck Nepal with a
tabla. Ramanath assaulted Nepal with a lathi. Prankrishna, the brother
'
BISHNA@BHISWADEB MAHA TO v STATE OF WEST BENGAL [SINHA,J.]
907
of Nepal, came to the rescue of Nepal. Prankrishna was assaulted by A
Mathan with tabla at his leg. Bhishma assaulted Prankrishna with
lathi. I protested against the assault on Prankrishna but Lal bas assaulted
me with lathi on my head causing bleeding injury therein. Bulu threw
arrow. It struck Chepulal at his head. Kalipada gave order to finish
him. Nilkantha assaulted Chepulal with lathi on his head. Prankrishna
died at the spot due to head injury. I returned home. On my way I met B
Lalbehari, Nabin and others. I narrated the incident to them. Then, I
again returned to the spot with Lalbehari, Nagen and others. I noticed
injury on leg and neck of Prankrishna, who was found dead. Nepal
was lying unconscious."
Chepulal Mahato (PW-14) was son of Joyram, who was a bargardar of C
plot No. 550. Joyram died during trial and as such he was not examined. He
had lodged a first information report as the accused persons had cut away
the paddy from their barga land on the previous day. He stated:
"My father, Jairam died during the pendency of this case. He died due D
to old age. Tangi is also known to us as tabla. Prankrishna was my
elder brother. Prankrishna had been murdered. The incident took place
on 15th Agrahayan. 5/6 years ago at about 8 a.m. On the day of
incident, at morning I accompanied my brother, Nepal, to our paddy
field in Sibotoor land in Mouza, Bhadsa to inspect as to what extent
the paddy of that land had been cut by N ilkantha and others on the E
previous day. It was then 6 am. We returned to our home from the
field. I heard a hulla while I was in the house I saw from our kitchen
garden that many persons were present in our Sibottor land which
was cultivated by us as bargadar. These persons were cutting paddy.
I informed the matter to Nepal and Prankrishna. I came out of the
house with my brothers and met Digam, Ambuj, Dashrath, Haradhan. F
My brothers asked these persons to go to our barga land as paddy
was being cut there. While we are proceeding to the field we met
Subhas. Subhas also accompanied us on our request. My uncle, Sibu
also followed us. We ·reached our field. Nilkantha, Biswa and other
were cutting paddy. We asked them not to do so. The paddy was G
being cut by hired labourers while Nilkantha Biswa and others were
on the ail on the land. We asked the labourers also not to cut paddy.
An altercation started. Then Bulu Mahato threw arrow towards us
which struck mouth of Nepal. Nepal was then on our land. Nilkantha
and others then shouted "Mar Salake".