MORAL MAJHI Vs. STATE

JUDGEMENT

(1.) The appellant Moral Majhi along with 17 thers was put on his trial on different charges. Moral Majhi and Gurai Majhi were charged under Section 304/34, I. P. C., and the rest were charged under Section 304/149. I.P C., for having killed Budhu Majhi, Moral Majhi was charged under Section 326, I. P. C., for having caused grievous hurt to the cheek of Thatu Majhi with a cutting weapon, viz., a tabla. Gurai Majhi was also charged with having caused such a hurt to Thatu Majhi with a cutting instrument. All the accused were further charged under Section 147, I. P. C. The jury by 5 : 2 found the appellant Moral Majhi guilty only under Section 326, I. P. C., for having caused grievous hurt to Thatu Majhi with a cutting instrument and they unanimously found all the accused not guilty on the other counts. The learned Judge accepted the majority verdict as against Moral Majhi, convicted him under Section 326, I. P. C., and sentenced him to four years' rigorous imprisonment. He also accepted the unanimous verdict in favour of the rest of the accused and also in favour of Moral Majhi on the other counts and acquitted them of those charges.

(2.) The case for the prosecution briefly is that C. Section Plot 314 of mouza Singarpara was recorded in the record-of-right as appertaining to a mokrari raiyati belonging to four persons, namely, Nuna Majhi and Leda Majhi, sons of Nukaram Majhi, Matla, son of Ganesh Majhi and Dhana Majhi, sou of Kanka Majhi. This raiyati mokrari they held under the Kars. It appears that subsequently the interest of the Kars devolved on the Bengal Coal Company so that they became the owners of the superior interest. It further appears from the lease executed by Indra Narayan Kar, Kedar Nath Kar and Pran Krishna Kar in favour of Mahindi Roy and Jogendra Roy. Ext. 7, as far back as the 7-3-1933 in respect of C. S. Plot No. 314 and a number of other plots that these plots were wrongly recorded as appertaining to the mokrari raiyati of Nuna Majhi and that there was a title suit which ended in a compromise. That compromise accepted Nuna Majhi and others as tenants in respect of a part of the holding but as those tenants fell into arrears there was a rent suit, namely Rent Suit No, 1610 of 1929 against them in the second court of the Munsif at Bankura and in execution of the decree obtained by the Kars against those tenants ^ namely, Execution Case No, 417/623 of 1932, as appears from the Sale Certificate, Ext. 2, the landlords obtained symbolical possession through court on 19-10-1932 & it is alleged in that Patta that they were in khas possession since then. They were in khas possession of a part of the plots mentioned in the schedule and the area in their khas possession was 4.45 acres. This they were leasing out to two persons, namely, Mahindi Roy and Jogendra Roy. Gobardhan, son of Mahindi Hoy sold to Thatu Majhi by Ext. 5 (c) dated 29-12-1952 his one-half share of this leasehold interest. The other half of the leasehold was sold by Fakir Roy, who claimed to have inherited this one-half share from his? maternal uncle Jogendra Roy, to Ramkalpa Patra by Ext. 5 (b), dated 19-4-1944 and Ramkalpa Patra sold this to Thatu Majhi by Ext. 5 (a) dated 19-6-1950. Thus Thatu Majhi by the two sale deeds acquired the entire leasehold interest of Mahindi and Jogendra Roy and as far as one can judge from the documents referred to, these leasehold interests represented a half of the plots mentioned in Ext. 7 and as there is nothing to show to the contrary it is more than probable that this one-half share o the plots was an undivided share. It is, however, the case of the prosecution that Thatu Majhi acquired the whole of Plot No. 314 as part of this leasehold. How far that is so it is difficult to say from the materials on the record. It is, however, the prosecution case that the whole of that plot was in the possession of Thatu Majhi ever since he acquired the leasehold interest of Mahindi and Jogendra Roy. But Moral Majhi, who according to the prosecution is a son of the wife of Turu Majhi by her second husband Rubu Majhi, started asserting his interest in the disputed plot for sometime and there were cases between them. On 28-10-1954 Moral Majhi together with a large number of other persons came to C. S. Plot No. 314 and began to reap the paddy which Thatu Majhi had grown thereon. Thatu Majhi, his son Badhu as also two other sons of his, namely, Shambhu Majhi, P. W. No. 6, and Ram Majhi, P. W. No. 5, went to the land to protest. Budhu was armed with a bow and arrows, Sam him was armed with a Katari and a bow and arrows, Thatu was armed with a lathi and Ram was also armed with a lathi. As they found the unripe paddy grown by them on the land was being reaped they protested. As a result of the quarrel that ensued, Guraf & Hopna shot two arrows at Thatu's party. Some of the persons on the side of the accused also threw stones at them and some others shot arrows and some tried to encircle them. Budhu shot arrows at the men on the side of the accused after they had shot arrows at them and then one fair complexioned Goon da came forward towards the complainant's men and encouraged others not to fall back. That fair complexioned man had an open umbrella in one hand and a sword in the other and used this open umbrella as a shield. This man struck Budhu on the head with his sword. Budhu struck him back on the arm with the sword that he had. That man fell down. Then another man came forward and clasped Budhu on one side and then Gurai, Moral, Gafra and others came and began to hit Budhu with swords and Tablas. Shambhu then struck Gafra with Katari and Gafra struck on Sham-bhu's right ear with a Tabla. Budhu fell down on being struck by his assailants. Dasarathi and Murhia struck Thatu Majhi on the left arm with a Gupti. Duia and another man named Kiran struck him on the head with lathi and Thatu felt down on the ground. After he had fallen down on the ground Moral Majhi struck him on his left cheek with a Tabla. Ram and Shamhu fled before he had been so struck by Moral Majhi. Budhu died on the spot. The local Chowkidar and the local Dafadar came to the scene on obtaining information from a cow boy. They saw what had happened and heard of what had happened from Thatu and others. The Dafadar then went to the Thana and reported the occurrence there at 9 P. M, The time of the occurrence was about mid-day and the police station was about 12 miles from the place of occurrence. The present appellant and 17 others were sent up in charge-sheet and tried with results already indicated.

(3.) The defence of the appellant was that he was, in fact, the son of Turu Majhi whose interest in the holding had not passed as a result of the rent execution sale because Turu was not made a party either to the rent suit or to the rent execution case and he was, in fact, in possession of the disputed land. It is further his case that there was a mutual fight between the parties as the result of Thatu's attempt to take forcible possession of the land.