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2000 DIGILAW 1255 (PAT)

Sobha Rai v. State of Bihar

2000-11-22

P.K.DEB, SHIVA KIRTI SINGH

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JUDGMENT P.K. DEB, J. Both these appeals have been preferred by the above-named accused-appellants against the judgment and order, dated 16.12.1993 passed by Shri Tarkeshwar Prasad Singh, Saran at 3rd Additional Sessions Judge, the then Chapra convicting all the four accused appellants above-named under Sections 302/34 of the Indian Penal Code and sentencing them to rigorous imprisonment for life. The accused-appellant, Shankar Rai has further been convicted under Section 324 of the IPC but no separate sentence has been awarded. The above named four accused-appellants have faced trial along with four others, namely, Sikandar Rai, Eknath Rai, Nagendra Rai, Dharam Nath Rai, in total eight in numbers for charges under Sections 302/149 of the Indian Penal Code and also separate charges under Section 302, IPC, against accused-appellants Krishna Rai and Sobha Rai and also other charges as• under Section' 302/109 and separate charges under Sections 324 and 323 of the IPC against the other accused persons, who are not appellants as they had been acquitted of their charges by the impugned judgment. Only the four accused-appellants have been convicted as mentioned above and other four, who faced trial along with them as mentioned above had been acquitted on benefit of doubt although there were specific attributions against them also but they were not named in the First Information Report and on embellishment during the course of trial they had been included in the case. At the first instance charge-sheet was submitted only against the above-named four accused-appellants but afterwards when the charge of the investigation was taken by another Investigating Officer charge-sheet was also filed against the acquitted accused persons, namely, Sikandar Rai, Eknath Rai, Nagendra Rai and Dharm Nath Rai. 2. At the first instance charge-sheet was submitted only against the above-named four accused-appellants but afterwards when the charge of the investigation was taken by another Investigating Officer charge-sheet was also filed against the acquitted accused persons, namely, Sikandar Rai, Eknath Rai, Nagendra Rai and Dharm Nath Rai. 2. The prosecution case runs as follows: On 16.3.1987 at about 5.00 p.m., when the villagers were singing Holi songs in front of the house of the informant PW 8, Rajnath Rai at village Maya Tola under Jalalpur PS the accused appellants being armed with deadly weapons, specifically stated accused appellants, Krishna Rai and Sobha Rai armed with bhala, accused-appellant, Munna Rai with country-made pistol and accused appellant, Shankar Rai with farsa came to the place of occurrence an Sobha Rai, accused-appellant objected to singing of Holi song at the door steps of informant PW 8 rather asking the singers to go to his place first for singing Holi At this Vijay Rai, the younger brother of the informant, Rajnath Rai raised objection at which the accused appellant, Sobha Rai rebutted him as he did not have any courtesy to talk to the elderly persons and then scuffle started. It is further alleged that accused-appellant, Sobha Rai hurled his bhala towards Vijay Rai which hit on his right hand cutting fingers and when Vijay Rai tried to flee away he was surrounded by the acquitted accused persons and the accused-appellant, Krishna Rai hurled his bala which hit on the chest of Vijay Rai as a result of which he fell down in the pool of blood. At this the family members of the informant, namely, his sister, Lalita Kumari, mother Chaniya Devi, his brother Jagdish Rai came in rescue of Vijay Rai then they were also assaulted by the weapons in the hands of the accused persons as a result of which PW 7, Chaniya Devi received farsa blow in the hands of the accused-appellant, Shankar Rai on her head. Lalita Kumar, PW 3 and Jagdish Rai, PW 9 sustained injuries on their persons by the assault caused by the acquitted accused persons. How Informant along with injured Vijay Rai went to Khaira Outpost where Vijay Rai succumbed to his injuries and then information was lodged by PW 8, Rajnath Rai which was recorded by ASI, S.D. Singh PW 9 which was marked as Ext. 3. How Informant along with injured Vijay Rai went to Khaira Outpost where Vijay Rai succumbed to his injuries and then information was lodged by PW 8, Rajnath Rai which was recorded by ASI, S.D. Singh PW 9 which was marked as Ext. 3. It was further alleged that the injured witnesses were also sent for medical examination through challan by PW 1 who happened to be the officer-in-charge of Jalalpur PS at the relevant time. The First Information was registered as Chapra Moffasil PS Case No. 89/87 and the investigation ensued, during the course of I which post-mortem was held over the dead I body of Vijay Rai by PW 4, Dr. Ramesh Kumar Singh, who found the following injuries on his person : (i) Incised wound 1/2" x 1/4" x muscle-deep in web between lower and index finger 1/ of the right hand. 11 (ii) A Sharp penatrating wound 3/4" x 1/;, 4" x lungs substance-deep on the front of it chest 4th interposal space on the right side. On opening the chest a puncture wound 1/4" x 1/6" x 1/4" in front of the middle lobe of the right lung with collection of about one point of dark red fluid blood in the right chest cavity, and according to the Doctor this injury NO.2 was sufficient to cause death for shock and haemorrhage, and the statement of they informant was taken soon after the registration of the case and other injured witnesses and the singers of Holi were also recorded. After completion of- investigation, charge-sheet was submitted under Sections 302/149/323/324/109 of the Indian Penal Code against eight accused persons including the accused-appellants as mentioned above. Charges were framed against all the eight accused persons under Sections 302/149, IPC. Accused appellant, Shanker Rail along with two others, namely, Nagendra Rai and Eknath Rai were further charged under Section 324, IPC and accused-appellants, Krishna Rai and Sobha Rai were further charged under Section 302, IPC. When the charges were read over and explained to the accused persons on 10th day of April, 1991 they denied and pleaded not guilty. 3. Accused appellant, Shanker Rail along with two others, namely, Nagendra Rai and Eknath Rai were further charged under Section 324, IPC and accused-appellants, Krishna Rai and Sobha Rai were further charged under Section 302, IPC. When the charges were read over and explained to the accused persons on 10th day of April, 1991 they denied and pleaded not guilty. 3. The defence case is that the occurrence as depicted by the prosecution had never been occurred in the manner and way as claimed rather there was an occurrence at the door steps of accused appellant Sobha Rai in which Sobha Rai and Munna Rai sustained injuries and there was a cross case filed from the side of the accused persons in which one of the prosecution witnesses, namely PW 2, Ramugarah Rai along with others were accused. The time of the occurrence is the same as pleaded from the side of the prosecution. The FIR in that case along with injury report, etc., had been exhibited by way of defence by formal witness DW 1, Sachidanand Sahay. Practically the injury on the person of Vijay Rai and other injured had not been specifically denied from the side of the accused persons rather their case was that the occurrence took place in the way it has been depicted in the cross case. 4. For and on behalf of the prosecution as many as ten witnesses have been examined out of them vital witnesses are PW 8, Rajnath Rai. who is a direct eye-witness to the occurrence and an Informant in the case. Among the other eye-witnesses PW 3 Lalita Kumari, PW 6 Jagdish Rai, PW 7 Chaniya Devi are the injured witness in the occurrence. PW 1 Mauji Lala Rai PW 2 Ramugarh Rai and PW 5 Baidyanath Rai were also cited as eye-witnesses, who were the members of the singer party of the Holi songs at the place of occurrence. PW 4 Dr. Ramesh Kumar Singh is the Doctor, who held autopsy over the dead body of Vijay Rai. PW 9 Satyadeo Singh is the Investiga1ing Officer PW 10 Krishna Sharma is formal witness. Regarding the defence witness it has already been stated that DW 1 a Tayeed has proved the injury-report, First Information Report and the judgment in the so-called cross-case. Ramesh Kumar Singh is the Doctor, who held autopsy over the dead body of Vijay Rai. PW 9 Satyadeo Singh is the Investiga1ing Officer PW 10 Krishna Sharma is formal witness. Regarding the defence witness it has already been stated that DW 1 a Tayeed has proved the injury-report, First Information Report and the judgment in the so-called cross-case. After scrutinizing the evidence on record learned Court below came to the finding that the prosecution could be able to prove that it was accused-appellants, who had come to the place of occurrence with the common intention of killing Vijay Rai and assaulting other injured of the prosecution party and hence conviction was recorded under Section 302/34 of the IPC holding that unlawful assembly was not there with a common object as other four accused-persons who had faced trial were acquitted on benefit of doubt. Benefit of doubt to those four accused persons had been given on the ground that their names did not appear in the First Information Report of PW 8 although he gave a vivid description about the whole occurrence including the specific attribution against the individual accused persons, although there was such missing in respect of the accused-appellant, Krishna Rai. Injuries on the person of the injured witnesses had not been proved by cogent evidence arid as such for the injury allegedly caused on the person of PW 7 Chaniya Devi accused-appellant Shankar Rai has been convicted under Section 324, IPC but no separate sentence has been awarded as all the accused-appellants had been sentenced to rigorous imprisonment for life under Sections 302/34 of the IPC. 5. While challenging the impugned judgment, Mr. 5. While challenging the impugned judgment, Mr. Rana Pratap Singh learned senor counsel appearing for and on behalf of the appellants restricted his arguments on the two main points, first, that even if the materials available on record are taken to the truthful version of the prosecution then also the case does not come within the purview of binding on the accused-appellants with the rope of Section 34 of the IPC as the prosecution could not be able to prove any premeditation of mind or per-concert of causing death of Vijay Rai in the incident rather it was a death on the spur of the moment in the melee and, as such the case comes within the purview of Section 304, Part I of the Indian Penal Code against the individual accused-appellant, Krishna Rai alone and other accused-appellants are entitled to acquittal as no individual injury reports were not there proved from the side of the prosecution. His second submission is that the accused-appellant, Krishna Rai on the face of the records was a juvenile at the time of occurrence as from the statement recorded under Section 313 of Cr. PC, it could be found that he was 20/21 years old on the date when the statement was recorded as assessed by the Sessions Judge and on calculating back it could be found at the time of occurrence he was 13 years old and as such, his trial in regular course is a vitiated one and the sentence imposed on him cannot be implemented as the Juvenile Justice Act comes as a barrier. Shri Lala Kailash Bihari Prasad, Advocate appearing for the State has averted the submission on the first point as made by Mr. Rana Pratap Singh by referring to the evidence on 'record and by submitting some ruling of the apex Court to the effect that learned Court below has rightly arrived at the finding that it was a case to be roped under Section 34 of the IPC when the intention may not be premediated one but had gathered at the moment when the situation turned so. Regarding the second point as raised by the Senior Counsel for the appellant on the legal aspect, the State counsel has also conceded by referring to the recent judgment of the apex Court as reported in 2000 (4) PLJR (SC) 65 : 2000(2) East Cr. Regarding the second point as raised by the Senior Counsel for the appellant on the legal aspect, the State counsel has also conceded by referring to the recent judgment of the apex Court as reported in 2000 (4) PLJR (SC) 65 : 2000(2) East Cr. C 778 (SC), (Umesh Singh and another Vs. State of Bihar) (2000)6 see 89 but his submission is that unless there is a proper medical report regarding the juvenility of the accused appellant, Krishna Rai this Court cannot act regarding the implementation of the sentence imposed on accused-appellant, Krishna Rai. 6. In the light of the submissions made by the learned counsel for both the parties, I have scrutinized the evidence and the materials on record. Although the injury inflicted by the accused-appellant, Krishna Rai did not find place in the FIR but that fact has been supported by all the witnesses in equivocal terms and the eye-witnesses had also stated so in their statements recorded under Section 313, Cr. PC before the Investigation Officer which was recorded soon after the occurrence. As to how the said allegation had been missed from the First Information Report has also been explained from the side of the informant. He stated that he was in much shock and perplex that after making such statement before the police officer he signed over the same without going through the contents and without being read over the same to him. Investigating Officer has also stated that soon after the statement of the informant wherein he specifically made allegations against Krishna Rai of giving bhala blow on the chest of the deceased, Vijay Rai. This point has been very ably considered by the learned Sessions Judge in' the impugned judgment and I am also convinced that such omission in the FIR cannot be considered to be a fatal one as FIR can never be an encyclopedia of the whole occurrence. The name of Krishna Rai having been armed with bhala specifically mentioned in the FIR itself. So after scrutiny of the evidence on record the fact al potion remains that accused-appellant Sobha Rai had hurled bhala towards Vijay Rai which hit him on his right hand causing cut injuries on two fingers and accused-appellant, Krishna Rai also hurled his bhala which proved fatal. So after scrutiny of the evidence on record the fact al potion remains that accused-appellant Sobha Rai had hurled bhala towards Vijay Rai which hit him on his right hand causing cut injuries on two fingers and accused-appellant, Krishna Rai also hurled his bhala which proved fatal. Against accused-appellant, Munna Rai as alleged did not attribute to any assault to any of the prosecution party rather against him there is allegation that he brandished his country-made pistol to terrorise the people assembled there. The accused-appellant, Shankar Rai had not touched the body of deceased Viajy Rai, he only gave a farsa blow as alleged on the person of PW 7, Chaniaya Devi on her head and such factual aspect could be found to be established from the evidence of the prosecution witnesses. I debar from discussing the evidence of individual witnesses as the sum and substances as mentioned above could be found to be only plausible inference of the evidence on record and the discussion of the evidence of individual witnesses by the learned Sessions Judge is not only proper but justified on the face of the records itself. 7. Now the question comes in whether on the attributions being proved against the accused-appellants whether they, can be held to be guilty under Section 302, IPC roping under Section 34, IPC or not. This question requires to be considered on the background of the whole case and totality of the evidence and the materials available on record. It was not the case of the prosecution that there was any enmity between the parties since before rather it has been admitted by each and every individual witness that the relationship between the parties were cordial and they had visiting terms. The informant and the deceased were the next door neighbours. The place of occurrence as per the prosecution case is at the door steps of the informant Rajnath whereas as per the cross-case the place of occurrence is at the door-steps of the accused-appellant. Sobha Rai. The informant and the deceased were the next door neighbours. The place of occurrence as per the prosecution case is at the door steps of the informant Rajnath whereas as per the cross-case the place of occurrence is at the door-steps of the accused-appellant. Sobha Rai. From the topography of the place of occurrence as depicted in the map prepared by the Investigating Officer, it could be found that the place of occurrence as claimed from both the side are very close to each other and in such way it cannot be said that the place of occurrence as claimed from the side of the defence is a myth rather it can also be a possible one on the face of it. It is the case of the prosecution that after Vijay Rai got injuries in the hands of accused appellant, Sobha Rai he tried to flee away towards his home but then he was surrounded by other acquitted accused persons and then accused-appellant, Krishna Rai had hurled bhala which hit him on his chest. So, it does not become an impossibility one that the occurrence started at the door steps of the accused-appellants, Sobha Rai and bhala blow on the chest was received by Vijay Rai at the door steps of Rajnath Rai. Moreover, it appears that although it is in evidence that blood oozed out from the body of Vijay Rai but no mark of blood could be found by the Investigating Officer at the place of occurrence as stated or claimed from the side of prosecution. So there remains some sort of confusion as to whether really the accused-appellants were the aggressors or that there was a melee between the parties when there was injuries on both sides. It is on record that accused-appellants, Sobha Rai and Munn Rai had sustained superficial injuries on their persons. At least from such circumstances, it comes out clearly that there was no premeditation, pre-concert or pre-meeting of mind amongst the accused appellants for causing murder of Vijay Rai. Then it comes whether in place of occurrence' there was any such situation which made the accused-appellant to go ahead having common intention to kill the deceased Vijay Rai. No such circumstances or situation could be shown by the prosecution nor by the State counsel in the evidence or materials on record. Then it comes whether in place of occurrence' there was any such situation which made the accused-appellant to go ahead having common intention to kill the deceased Vijay Rai. No such circumstances or situation could be shown by the prosecution nor by the State counsel in the evidence or materials on record. Visualising the situation, it comes out that there was some exchange of words between the two parties as to whereof the Holi songs should start first and on this there was quarrel and then a mar-pit stated in which both the parties sustained injuries In such circumstances, it is the settled principle of law that common intention or common object as contemplated under Section 34 and Section 149 of the IPC does not come to play rather the individual assailants are to be considered for their actions being made in the occurrence itself. The accused-appellants, Sobha Rai had caused injury on the person of deceased Vijay Rai by means of a bhala. It is not there that he aimed towards the vital part of the body of Vijay Rai rather he hurled the same which caused injury on the right hand of deceased Viajy Rai and such injury as found on post-mortem examination is definitely a simple one and in that way accused-appellant, Sobha Rai can be found to be guilty under Section 324 of the IPC. Regarding accused-appellant, Krishna Rai, it is the prosecution case that Vijay Rai on receipt of injury in the hands of Sobha Rai tried to flee away but then he was surrounded by the acquitted accused persons, then accused-appellant Krishna Rai hurled his bhala which hit him on his chest and proved fatal. Regarding that part that Vijay Rai was surrounded by the other accused persons remains a doubtful and, as such, they have been acquitted. In that way that part of the evidence of the prosecution cannot be relied on for the purpose of holding an intention on the part of the accused-appellant, Krishna Rai to kill Vijay Rai rather on proper scrutiny of evidence of PW 8, Rajnath Rai, it could be found that Vijay Rai was hurled of bhala of Kirshna Rai which hit him on his chest. ("Krishna Rai ne bhala chala diya") I have already held in the foregoing discussions that the possibility of melee cannot be ruled out rather the circumstances show that there was a melee as there was quarrel and scuffle between both the sides and as there were injuries from both the sides and, as such, it cannot be said the Krishna Rai with premeditated intention had given the blow on the chest of Vijay Rai by bhala rather he hurled it and the same hit on the chest the proved fatal and in that way of case the Krishna Rai also comes within the four\h exception of Section 300 of the IPC and thus the conviction can come within the purview of Section 304, Part II of the IPC as intention was not there but knowledge of causing death must be there. There is no golden scale to measure or any strait jacket on the principle as to how and on what ingredients can attract conviction under the purview of Sections 304, Part I and 304, Part II of the IPC but the circumstances of each individual case depend regarding the attraction of the proper section for the purpose of conviction. On the whole situation, I find and come to the conclusion that the case of Krishna Rai comes within the purview of Section 304, Part II of the IPC and he may be convicted as such. Regarding the accused-appellant, Munna Rai there is no evidence of causing assault on any body. Only allegation is that he brandished his country-made pistol. In this sequence, it could also be stated that if there was really an intention or pre-concert of mind for killing Vijay Rai then Munna Rai could have used his country made pistol to finish Vijay Rai or any member of prosecution party but it was not there rather in the melee he terrorised by brandishing pistol and some injuries had been caused on some of the PWs by some of the accused persons. On the other hand some injuries have also been caused on the person of accused Sobha Rai and Munna Rai. Munna Rai thus does not come within the purview of conviction under Section 304/ 34, IPC when he had not assaulted anybody. He cannot be convicted under any minor section also. On the other hand some injuries have also been caused on the person of accused Sobha Rai and Munna Rai. Munna Rai thus does not come within the purview of conviction under Section 304/ 34, IPC when he had not assaulted anybody. He cannot be convicted under any minor section also. There is no charge against him under Section 27 of the Arms Act and, as such, he is entitled to get acquittal. Regarding accused-appellate Shankar Rai he has rightly been convicted by the learned Court below under Section 324, IPC because of giving farsa blow on the head of PW 7, Chaniaya Devi. Although, there is no injury report could be con gently proved to support that fact but there is consistent evidence from the prosecution party to that effect. Thus, I find on proper scrutiny of the mater also on record that the accused-appellant Kishna Rai is guilty of the offence under Section 304, Part II of the IPC and as he remained in custody for more than seven years. Then in my view he has been punished sufficiently for the offence committed by him and he can be released forthwith if no other case is pending against him. Accused-appellant Munna Rai is entitled to acquittal and he be discharged of his bail bonds as he has been granted bail by the appellant Court. Accused-appellant Sobha Rai and accused-appellant Shankar Rai are convicted under Section 324, IPC today for about two months although such sentence may not be sufficient for the gravity of the offence committed but it should be borne in mind that the occurrence took place long back in the year 1987 and long two decades have been passed by this time and in my opinion, justice may not demand to send them to jail again rather they should be punished for the period for which they have already undergone together with fine of Rs. 2000/- each to be deposited in the trial Court within one month next from this date, in default, to suffer simple imprisonment for one month each. If the fine is realized the same should go in favour of the injured Chaniaya devi, if she is still have or her successor and to the successor of deceased Vijay Rai respectively. 2000/- each to be deposited in the trial Court within one month next from this date, in default, to suffer simple imprisonment for one month each. If the fine is realized the same should go in favour of the injured Chaniaya devi, if she is still have or her successor and to the successor of deceased Vijay Rai respectively. The second point raised regarding non-implementation of the sentence on the accused-appellant Krishna Rai as has been urged from the side of the Senior Counsel appearing for and on behalf of the appellant I do not find that the same is necessary to be taken up in this particular case. I have already held that the sentence imposed on the accused has already been implemented by this time. The submission in that respect made by both the parties would remain for academic discussion alone in the present case which can be taken up in any future case when the situation comes in. But I totally agreed with the observations made by apex Court in the reported judgment as mentioned above with an exception to the case as per Bhola Bhagat's case as reported in (1997) 8 SCC 720 : 1988(1) East Cr. C 735 (SC), to the effect that assessment made by a Court during the course of recording statement under Section 313, Cr. P.C. can not be held to be a basis for the purpose of assessment of a age regarding juvenility of the accused rather some more enquiry is necessary to be done before the non-implementation of the sentence imposed on a so-called juvenile, who has been tried in general was without going under the Juvenile Justice Act. 8. Thus, both the appeals are party allowed as per mentioned above. Accused appellant, Krishna Rai may be released forthwith if not wanted in any other case.