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1999 DIGILAW 814 (PAT)

Raghu Rabidas v. Stats Of Bihar

1999-08-26

A.K.PRASAD, R.A.SHARMA

body1999
Judgment A.K.Prasad, J. 1. The sole appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to life imprisonment, on the charge of committing murder of Tanika Rabidas, by the impugned judgment and order dated 3.3.1990 passed by Sri P.N. Yadav, the then IIIrd Addl. Sessions Judge, Hazaribagh, in S.T. No. 28 of 1986. 2. Briefly put, the prosecution case, as made cut in the fardbeyan (Exhibit 4), is as under : On 12.8.1985, around 11 p.m., the informant (Baliram Rabidas), full-brother of the deceased (Tanika Rabidas) and the deceased, were sitting at the darwaja of Ramjatan Lohar (PW-2), their co-villager. Ramjatan Lohar (PW-2) Lakhan Sonar (not examined), Triveni Sonar (PW-4) were there. At that time, appellant (Raghu Rabidas), his wife (Shani Devi) and their son, Brahmdeo Rabidas, the co-villagers of the informant, came armed with lathi-danda, and challenged the deceased to settle the dispute, whereupon Ramjatan Lohar (PW-2) Lakhan Sonar and Triveni Sonar (PW-4) intervened, they pacified the appellant and his family members and reached them to their home. After that, Ramjatan Lohar and Lakhan Sonar assured that there would be no quarrel and advised the informant and the deceased to return home. Thereafter, the deceased started for his home and the informant followed him. When the deceased reached in the Gali near his home, the appellant suddenly came out of his house, wielding lathi and showered lathi blows on him, as a result of which, he sustained wounds and fell down. The informant raised alarm, the appellant ran into his house and Ramjatan Lohar, Lakhan Sonar, and Triveni Sonar (PW-4) arrived running to the spot, whereafter the deceased was brought to the house of Ramjatan Lohar and the informant stayed there on that night. As it was late night, no arrangement could be made for the treatment of the deceased, and when the informant approached the doctor at Chittarpur, the next morning, he was advised to carry the deceased to the hospital for treatment. Thereafter, the informant brought a rickshaw for carrying the deceased to the hospital, but by then the deceased had succumbed to the wounds. The informant gave his fardbeyan (Exhibit 4) before Dudh Nath Ram (PW-9), Sub-Inspector of Police about the occurrence on 13.8.1985 at 8 a.m. at Ramgarh Project Out-Post. Thereafter, the informant brought a rickshaw for carrying the deceased to the hospital, but by then the deceased had succumbed to the wounds. The informant gave his fardbeyan (Exhibit 4) before Dudh Nath Ram (PW-9), Sub-Inspector of Police about the occurrence on 13.8.1985 at 8 a.m. at Ramgarh Project Out-Post. The cause of the incident is said to be an old enmity between the parties and on many occasions, the appellant had pelted brick-bats and stones at the house of the informant and the deceased, which had led to protest and quarrels. On the basis of the fardbeyan (Exhibit 4), the present case came to be instituted, a formal First Information Report (Exhibit 5) was drawn up, investigation commenced, the Investigating Officer (PW-9), Dudh. Nath Ram visited and inspected the spot, held inquest over the dead body and on completion of investigation, charge-sheet Was laid in Court against the appellant accused. The main defence is of innocence and false implication due to previous enmity. 3. At the trial, the prosecution examined nine witnesses, in support of its case. Out of them, PW-7 (Geta Mahto) is a tendered witness. PW-5 (Ramphal Choudhary) and PW-6 (Gajadhar Rabidas) are the witnesses on the inquest report (Exhibit 6). The other PWs are : Dr. Ved Varat (PW-1), who held autopsy on the dead body of Tonika Rabidas, PW-2 (Ramjatan Ram), PW-3 (Kishori Prasad), PW-4 (Triveni Sonar), PW-8 (Balram Rabidas) and PW-9 (Dudh Nath Ram), the Investigating Officer. On the other hand, the defence did not examine any witness. 4. The trial Court relying mainly on the testimony of the informant (PW-8), an eye-witnesses to the assault on the deceased and the circumstantial evidence of PWs 2 to 4 as well as the medical evidence, held the appellant guilty of the charge under Section 302 of the Indian Penal Code for committing murder of the Tanika Rabidas and accordingly, convicted and sentenced him on that account, as stated above. 5. The point which falls for consideration is whether the prosecution, has been able to substantiate the charge under Section 302 of the Indian Penal Code against the appellant beyond shadow of all reasonable doubts; 6. The medical evidence establishes beyond doubt that the death of the deceased was homicidal. PW-1 (Dr. 5. The point which falls for consideration is whether the prosecution, has been able to substantiate the charge under Section 302 of the Indian Penal Code against the appellant beyond shadow of all reasonable doubts; 6. The medical evidence establishes beyond doubt that the death of the deceased was homicidal. PW-1 (Dr. Ved Varat) has testified to the effect that on 13.8.1985 at 4.30 p.m. he held post-mortem examination on the dead body of Tanika Rabidas and he found several bruises over his back and on dissection, he found fractures of the left 3rd to 4th ribs and 4th to 8th ribs oh the right side frith laceration of pleura and lungs. According to him, the injuries were caused by hard and blunt substance, such as lathi the death occurred due to shock and haemorrhage, caused by the injuries and the time elapsed since death was within 24 hours of the post-mortem examination. Exhibit 1 is the post-mortem report in his pen. The medical evidence fits in with the prosecution case, regarding the time of the occurrence and the cause of death. 7. The prosecution case, as unfolded in evidence is in three segments, namely, the incident which took place at the darwaja of PW-2 on the fateful night, immediately preceding the occurrence, the actual assault on the deceased, and the oral dying declaration alleged to have been made by the deceased, immediately after the occurrence, to the PWs 3 and 4. PW-8 is the star witness for establishing the charge against the appellant. He is the sole eye-witness to the assault made on the deceased. He has testified to the effect that on the fateful night, around 11 p.m., he along with the deceased was sitting at the darwaja of PW-2 (Ram Jatan Ram), and PW-4 (Triveni Sonar) and Lakhan Sonar were present there, when the appellant armed with lathi came and challenged the deceased, but on the intervention of the other PWs, the matter was pacified and they returned. PWs 2, 3 and 4 have corroborated the testimony of PW-8 on this part of the incident. It has come in evidence of PWs 3 and 4 that the appellant had abused the informant and his brother. PWs 2, 3 and 4 are independent witnesses. There is nothing to suggest that they have any animus with the appellant. PWs 2, 3 and 4 have corroborated the testimony of PW-8 on this part of the incident. It has come in evidence of PWs 3 and 4 that the appellant had abused the informant and his brother. PWs 2, 3 and 4 are independent witnesses. There is nothing to suggest that they have any animus with the appellant. It is well-established that immediately before the occurrence, the appellant had challenged and abused the deceased at the darwaja of PW-2. PW-8 Balram Rabidas (the informant) has testified to the effect that after the appellant with his family members departed from the darwaja of PW-2, on the persuasion of PWs, 2 4 and Lakhan Sonar, the deceased left for his home and this witness followed him. PWs 2, 3 and 5 have supported the testimony of PW-8 that soon after the appellant had withdrawn from the darwaja of PW-2, they had persuaded the informant and the deceased to return to their home and they had left the darwaja of PW-2 for their home. PW-8 has further testified to the effect that when the deceased on the way reached the lane near his house, the appellant came out of his house, armed with lathi and assaulted the deceased with it and on alarm raised by him and the deceased, the appellant went inside his house. It has come in his evidence that he had witnessed the assault on the deceased from a distance of 20 cubits. PW-2 has stated that this witness had disclosed soon after the occurrence that the appellant had assaulted the deceased. PWs 3 and 4 too have stated that immediately after the occurrence, the informant (PW-8) narrated to them about the assault by the appellant on the deceased and when they went to the spot, they found that the deceased was lying injured, PW-8 is a natural witness and his presence on the spot at the time of the occurrence cannot be doubted. The informant and the deceased lived in the same house and it was but natural that he had come with the deceased and returned from the darwaja of PW-2 and had the occasion to witness the assault on the deceased. It is worthwhile to mention here that the appellant is the immediate neighbour of the informant and so the attack made by him on the deceased could be witnessed by the informant. It is worthwhile to mention here that the appellant is the immediate neighbour of the informant and so the attack made by him on the deceased could be witnessed by the informant. It has come in the evidence of PW-8 that the lane where the assault took place is 3-4 wide. The appellant is the neighbour of the informant and was well known to him. There is nothing on record to suggest that it was a dark night. So, the informant (PW-8) could have correctly identified the appellant as the assailant of the deceased. 8. PWs 3 and 8 have stated that the deceased had disclosed that the appellant had assaulted him with a lathi PWs 4 and 8 did not state before the police (vide deposition of PW-9) that the deceased had made any oral dying declaration. There is no mention in the fardbeyan (Exhibit 4) that the deceased had made any oral dying declaration. Henoe, as rightly conceded by the learned APP, the oral dying declaration, alleged to have been made by the deceased, is to be excluded from consideration. It has been noticed above that there is reliable ocular testimony of PW-8 that the appellant had assaulted the deceased with lathi, as a result of which he, ultimately, died the next morning. The suggestion given by the defence to PW-8 that he had illicit affairs with Paro, the wife of the deceased, or that he had himself killed the deceased has been denied by him. The defence has adduced no evidence to substantiate the suggestion denied by PW-8. It has come in the evidence of PW-3 that there was good relation between PW-8 and the deceased. It is suffice to say that PW-8 being related to the deceased, as the elder brother, would not spare the real culprit and falsely implicate the appellant. The circumstantial evidence that immediately preceding the occurrence, the appellant had challenged the deceased at the darwaja of PW-2 lends assurance to the testimony of PW-8 that the appellant had assaulted the deceased. 9. Thus, on the basis of the evidence, direct and circumstantial, discussed above, it is established beyond doubt that the appellant had assaulted the deceased, resulting in his death. 10. It has now to be considered as to what offence has been committed by the appellant. 9. Thus, on the basis of the evidence, direct and circumstantial, discussed above, it is established beyond doubt that the appellant had assaulted the deceased, resulting in his death. 10. It has now to be considered as to what offence has been committed by the appellant. The doctor has not given the opinion whether the wounds suffered by the deceased were sufficient in ordinary course of nature to cause the death. No injury on the vital part of the body of the deceased was found. The circumstances of the case go to show that the appellant inflicted the injuries not with the intention of murdering Tanika Rabidas (the deceased) ; rather he intended to cause bodily injuries which were likely to cause the death. Hence, the conviction of the appellant under Section 302 of the Indian Penal Code is altered to Section 304, Part I, of the Indian Penal Code. The sentence of life imprisonment is commuted to ten years. 11. In the result, the appeal is dismissed with the modification in the order of conviction and sentence passed against the appellant by the trial Court in the manner/to the extent indicated above. The appellant is directed to be released from custody, if he has already served the period of his sentence afore-mentioned, in accordance with law, unless required in any other case(s). Appeal dismissed with modification.