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SUPREME COURT OF INDIA
I.D.Dua : S.M.Sikri
Rajkishore Singh
Versus
State Of Bihar
Case No. : 173 of 1967
Date of Decision : 9/25/70
Indian Penal Code, 1860 – Sections 326, 149, 302, 34, 147 – Issue of arrears of rent – Offence of Murder – Unlawful Assembly – Order of Conviction – Appeal by special leave by nine appellants is directed against common judgment of High court Judicature dismissing two criminal appeals from judgment of first Additional Sessions Judge: (1) convicting Rajkishore Singh, Bindheyachal Singh and Ram Bachan Bhar : (a) under S. 302/34, 1. P. C., for the murder of Raj Bhallabh Dubey and sentencing them lo imprisonment for life; and (b) under Section 148, Indian penal code, and sentencing them to rigorous imprisonment for two years ; (2) convicting Dhup Narayan Singh, Bhikari Singh, Suresh Singh, Kirpal Singh, Behratn Singh and Dudnath Singh; (a) under S. 326/149, 1. P. G., and sentencing them to rigorous imprisonment for six years; (b) under Section 323, I. P. G., and sentencing them to rigorous imprisonment for one year and (c) under Section 147, Indian penal code, but imposing no sentence; (3) convicting Dhup. Narayan Singh, Bhikari Singh, Suresh Singh, Rajkishore Singh, Bindheyachal Singh and Ram Bachan Bhar, under Section 201, Indian penal code, and sentencing them to rigorous imprisonment for two years with a fine of Rs. 100.00 each: in default of payment of fine they were to undergo rigorous imprisonment for six months. – Held, First application, to which our attention was drawn in this connection, was put up before the Sub-Divisional Officer dealing with this case, in which it seems to have been prayed that the accused persons should not be produced in court and also not till the test identification parade was finished. – This application was, however, not pressed on behalf of the accused. On 3/01/1964, the accused were produced in custody and the court gave a direction to expedite the text identification parades. – It appears that later the accused started pressing for immediate test identification parades. – But in view of the fact that there was a counter-charge of some of the witnesses having been won over and the fact that the accused were apparently also known to the identifying witnesses test identification parade in this case can hardly be of any use. – Kapil Dev Tiwari, the other identifying witness, died a natural death before he could appear as a witness in the case. – So the test identification by him which is not a substantive piece of evidence but can only be used as corroborative evidence could not be of much evidentiary value. – What has just been stated clearly shows that the identification parades are of little value to the prosecution and there is no question of the accused having been prejudiced by the late identification parades. – Court is not relying on them at all. – Appellants suggestion somewhat casually made during the course of the arguments that Bindheyachal Singh was not capable of wielding Bhala with his right hand, which argument was not accepted by the Trial court, appears to us to be without foundation. – Evidence of three witnesses P. W.s 1,3 and 6 has been accepted by both courts below and we are unable to find any cogent ground for disagreeing with them. – Likelihood of .the infliction of grievous hurt by the unlawful assembly, having a common object of assaulting the prosecution party, who were chased while running away, is amply established and has been so found by the courts below. – No legal infirmity or failure of justice has been made out. – General alternative submission that the appellants had only exceeded their right of private defence is equally unfounded because on the facts on the record and on concurrent conclusions of the two courts below there is no question of any right of private defence because the prosecution party has not at all been shown to be the aggressors. – Question of exceeding this right can thus hardly arise. – Appeal Dismissed.
I.D.DUA, J.
(1) THIS appeal by special leave by nine appellants is directed against the common judgment of the High court Judicature at Patna dismissing two criminal appeals (Nos. 457 and 481 of 1965) from the judgment of the first Additional Sessions Judge, Chopra: (1) convicting Rajkishore Singh, Bindheyachal Singh and Ram Bachan Bhar : (a) under S. 302/34, 1. P. C., for the murder of Raj Bhallabh Dubey and sentencing them lo imprisonment for life; and (b) under Section 148, Indian penal code, and sentencing them to rigorous imprisonment for two years ; (2) convicting Dhup Narayan Singh, Bhikari Singh, Suresh Singh, Kirpal Singh, Behratn Singh and Dudnath Singh; (a) under S. 326/149, 1. P. G., and sentencing them to rigorous imprisonment for six years; (b) under Section 323, I. P. G., and sentencing them to rigorous imprisonment for one year and (c) under Section 147, Indian penal code, but imposing no sentence; (3) convicting Dhup. Narayan Singh, Bhikari Singh, Suresh Singh, Rajkishore Singh, Bindheyachal Singh and Ram Bachan Bhar, under Section 201, Indian penal code, and sentencing them to rigorous imprisonment for two years with a fine of Rs. 100.00 each: in default of payment of fine they were to undergo rigorous imprisonment for six months. All the sentences were to run concurrently.
(2) BEFORE narrating the prosecution story the relationship of the appellants inter se may be broadly stated. Rajkishore Singh, Bindheyachal Singh, Dhup Narayan Singh and Suresh Singh, appellants 1, 2, 4 and 6 respectively arc closely related to one another. Rajkishore Singh is son of Nagina Singh whereas Dhup Narayan Singh and Bindheyachal Singh are sons of Ram Das, brother of Nagina Singh. Suresh Singh is the son of Bindheyachal Singh. Bhika Singh is related to Nagina Singh and Ram Bachan Bhar is his ploughman. These six appellants belong to village Atmapur also known as Adampur. The remaining three appellants belong to village Santhi. Kirpal Singh and Bali Ram Singh are brothers and Dudhnath Singh is their Pattidar. We may now turn to the broad features of the background of the prosecution story. Khata No. 100 in village Sandhi consists of a number of plots including plots Nos. 2245 and 2246. The total area of this Khata consists of 7 Bighas, 8 Katbas and 3 Dhuria. The landlords of this Khata were Bal Bhadra Prasad and others and the recorded tenants Jang Bahadur Rai and Bal Govind Rai. Its rent having fallen into arrears the entire holding was sold in execution and purchased by the landlords themselves some time in September, 1932. Notwithstanding this sale in favour of the landlords the tenants continued in possessions of plots Nos. 2245 and 2246 where the present occurrence took place. The tenants also obtained Sada Hukumnama from the landlords some time in August, 1934, and paid rent to them. When the Zamindari vested in the State Government the owners mentioned Bal Govind and Jang Bahadur as their tenants being entered in the Jamabandi in 1963. Nagina Singh applied to the Land Revenue Department for correction of the Jamabandi entries basing his claim on the allegation that Raghunath Rai, Rarndhari Rai and others were Z?rpeshigidars of the Malkiat interest of Khata No. 100 and for arrears of rent the Zarpeshigidars had obtained a decree and in its execution in September) 1922, had purchased the Khata and secured its possession. Out of the Khata one Bigha and 19 Dhuria appertaining to plots Nos. 2245 and 2246 were settled with Ram Das Singh, brother of Nagina Singh. This was claimed on the basis of a registered Patta and it was on the footing of this document that Nagina Singh and the members of his family laid claim to the possession of the said two plots. These proceedings were still pending when the occurrence in question took place.
(3) THE prosecution version of the occurrence may now be briefly stated. The two plots Nos. 2245 and 2246 which have been amalgamated belong to Banke Singh son of J
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