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2000 DIGILAW 1329 (PAT)

Rameshwar Thakur v. State of Bihar

2000-12-15

A.K.VERMA, B.N.SINGH

body2000
JUDGMENT ASHOK KUMAR VERMA, J. The appellants have filed this appeal against the judgment and order, dated 1st April, 1987, passed in Sessions Trial No.1 02 of 1983, by IInd Additional Sessions Judge, Muzaffarpur, whereby, the learned Additional Sessions Judge had convicted the appellants under Sections 302/34 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for life. Besides these appellants, there was one more accused, Saraswati Devi, in Sessions Trial No.102 of 1983, who had been acquitted by the trial Court. 2. In short, the case of the prosecution is that the informant, Kamta Singh, who is also the deceased of this case, was returning from Muzaffarpur to his house on 3.12.1982 at about 07.00 to 08.00 p.m., along with his nephew, Ram Naresh Singh (P.W 2). They had got down from the train at Turki Railway Station on way to home. When the informant and his nephew, Ram Naresh Singh, reached near the door of Sahtu Thakur, accused Rameshwar Thakur, assaulted him with bhala, which hit him on his head and panjara. Accused Tuntun Thakur assaulted him with lathi and accused Kishori Choudhary and his brother-in-law (Bahnoi) assaulted him with chhura. Accused, Rameshwar Thakur gave him further bhala blow in his addomen and hand and, thereafter, the accused persons took the informant to the house of Tuntun Thakur, where wife of Tuntun Thakur had caught him and the accused persons had assaulted him there also. The wife of Tuntun Thakur had taken out Rs. 1,000/- from the informant. As a result of the assault, the informant was injured. On hulla, dafadar Sachhidanand Singh and chowkidar Rameshwar Bhagat had reached there. Near Kurhani Railway Station Chowk, Surya Narayan Arun, officer-in-charge, Kurhani Police Station had recorded the fardbeyan (Exhibit 2) of Kamta Singh at 02.00 a.m. on 04.12.1982. The informant Kamta Singh died due to the injuries. On the basis of the fardbeyan, formal First Information Report (Exhibit 3) was drawn in this case. After investigation, police submitted charge-sheet against the accused persons. The learned Judicial Magistrate took cognizance of the case and committed the case to the Court of Sessions for trial. 3. Defence of the accused persons is that they have been falsely implicated in this case. 4. In this case, seven witnesses have beer examined on behalf of the prosecution and ten witnesses have been examined on behalf of the defence. 5. 3. Defence of the accused persons is that they have been falsely implicated in this case. 4. In this case, seven witnesses have beer examined on behalf of the prosecution and ten witnesses have been examined on behalf of the defence. 5. It was argued by the learned lawyer for the appellants that PW2, Ram Naresh Singh, is the nephew of the deceased and he is highly interested witness and therefore, no reliance can be placed on his evidence. It was also argued by him that there is no medical evidence to show that the deceased was in a position to make statement with his said injuries and the post-mortem report shows that the deceased had 12 to 13 injuries. Only on the ground that a witness is related to the deceased his evidence cannot be discarded. PW 6, Dr. Manoranjan Kumar, who had conducted the post-mortem examination on the dead body of the deceased, Kamta Singh, had found 13 injuries on the body of the deceased. He has stated that the cause of death was shock and haemorrhage due to the injuries. According to him, three injuries were caused by hard and blunt substance and the rest by sharppointed weapon such as bhala. He has said that the injuries were sufficient in ordinary course nature to cause death. Post-mortem report is Exhibit 1. PW 6, Dr. Manoranjan Kumar, has said in his cross examination that a person may remain conscious even after shock and haemorrhage. So, the aforesaid argument, advanced by the learned lawyer for the appellant, is not tenable. 6. PW 5 is Awad Kishore Singh. According to him, he was returning to his house by tram and he had got down at the Turki Railway Station and was proceeding towards his house and when he reached near the house of Sahtu Thakur, he saw that Rameshwar Thakur, Mishri Lal Choudhary, Kishori Lal Choudhary, Hazari Choudhary and Tuntun Thakur were assaulting Kamta Singh. He has said in his cross-examination that the train had reached Turki at about 07:00 p.m. and on that day, while boarding the train at Muzaffarpur and at the time he got down at Turki Railway Station, he had not met anyone of his villagers. He has said in his cross-examination that the train had reached Turki at about 07:00 p.m. and on that day, while boarding the train at Muzaffarpur and at the time he got down at Turki Railway Station, he had not met anyone of his villagers. According to the prosecution, the deceased had got down from the train at Turki Railway Station and proceeded for his house and in the way in front of the house of Sahtu Thakur the occurrence had taken place. This witness (PW 5) claims to have seen the occurrence but he had not met any of his villagers either at Muzaffarpur while boarding the train or at Turki Railway Station when he had got down there. This witness (PW 5) is of village Mohanpur Goraul, PS Kurhani. The informant, Kamta Singh, who is deceased, was also a resident of village Mohanpur Goraul, PS Kurhani. It is strange that two persons of the same village boarded the same train at same place and both of them got down at the same Railway Station (Turki) for going to the same village but they had not met at either of the Railway Stations. In the circumstance, no safe reliance can be placed on the evidence of this witness (PW 5). PW 1, Ram Chandra Thakur, has been tendered by the prosecution. 7. PW 7 is Surya Narayan Arun, the Investigating Officer of this case. He was posted at Kurhani Police Station on 04.12.1982 as officer-in-charge of the police station. He had recorded the statement of Kamta Singh (deceased) at 02.00 a.m. in the night at Kurhani Station Chowk, who was in injured condition and he had read it over to him. Exhibit 2 is the fardbeyan of Kamta Singh. He has stated that he took up the investigation and recorded the further statement of Kamta Singh and, thereafter, drew the First Information Report at the police station. He has stated that at 06.00 a.m. in the morning, he proceeded and reached Government Hospital, Kurhani, and recorded the statement of Ram Naresh Singh and others and, thereafter, reached the village Mohanpur Goraul and inspected the place of occurrence, which is in front of the house of Sahtu Thakur. According to him it is busy passage and the another place of occurrence is the house and courtyard of accused, Tuntun Thakur. According to him it is busy passage and the another place of occurrence is the house and courtyard of accused, Tuntun Thakur. He has further said that during investigation Kamta Singh died in the hospital. Exhibit 4 is paragraph 3 of the police case diary which is the further statement of Kamta Singh (deceased). He (PW 7) has said in his cross-examination that f after return to the police station he entered First Information Report on the basis of the statement of wife of Tuntun Thakur as Case No. 252 of 1982. Exhibit 'A' is the First Information Report, lodged by Saraswati Devi, wife of Tuntun Thakur, at Kurhani police station, as Kurhani PS Case No. 252 of 1982. According to Exhibit 'A', the First Information Report was lodged at 12.15 p.m. on 04.12.1982. The First Information Report of the present case was lodged on 04.12.1982 at 02.30 a.m. and the number of the case is Kurhani PS Case No. 250 of 1982. So, the First Information Report, lodged by Saraswati Devi against Kamta Singh is numbered as 252 of 1982 whereas the case instituted by Kamta Singh against the accused persons Rameshwar Thakur and others is numbered as 250 of 1982, which clearly shows that the case of Kamta Singh was instituted before the case instituted by Saraswati Devi. According to Section 32(1) of the Indian Evidence Act, the statements written or verbal of relevant facts made by a person, who is dead is relevant when the statement is made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death, in •cases in which the cause of the person's death comes into question and such statements are relevant whe1her the person, who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question. In the present case, the First Information Report was lodged on the basis of fardbeyan of Kamta Singh, the deceased of this case. In the present case, the First Information Report was lodged on the basis of fardbeyan of Kamta Singh, the deceased of this case. PW 7, Surya Narayan Arun, the officer-in-charge of Kurhani police station, has stated that on 04.12.1982, he was posted as officer-in-charge of Kurhani police station and in that night of 2 O'clock, he recorded the statement of Kamta Singh, informant of this case, at Kurhani Station Chowk, who was in injured condition and he read it over to him and he put his thumb impression on it. Exhibit 2 is the fardbeyan of this case. In view of Section 32(1) of the Indian Evidence Act, Exhibit 2 is relevant in this case. 8. PW 2 is Ram Naresh Singh, the eyewitness of this case. He has stated that it was 8 O'clock in the night and he was coming with his uncle, Kamta Singh (deceased), to his house from Turki Railway Station and when they reached in front of the house of Sahtu Thakur, accused, Rameshwar Thakur armed with bhala, Tuntun Thakur armed with lathi, Kishori Lal Choudhary and Hazari Lal Choudhary, both armed with chhura, came there and started assaulting Kamta Singh with their respective arms. When he wanted to save Kamta Singh, accused, Rameshwar Thakur, wanted to assault him with bhala and then he fled raising hulla. According to him, the accused persons dragged Kamta Singh to the house of Tuntun Thakur and he raised hulla in the village and he went to the 'angan' of Tuntun Thakur with the villagers where Kamta Singh was in injured condition. He has said that chowkidar and dafadar soon arrived in the 'angan' of Tuntun Thakur and with their help, he took Kamta on a cot and proceeded for police station and hospital and at Kurhani Station Chowk, they met the Daruga ot Kurhani police station, who recorded the statement of Kamta Singh before him and read it over to him and Kamta Singh put his thumb-impression on it. Further, accord n9 to him, he went to the hospital with police party where his (PW 2) statement was recorded. He has said that witnesses Shambhu Thakur and Ganu Thakur are dead and there is no trace of witness Kailash Sahni. He has further said that Kamta Singh died the following morning at 6.00 a.m. due to assault. Further, accord n9 to him, he went to the hospital with police party where his (PW 2) statement was recorded. He has said that witnesses Shambhu Thakur and Ganu Thakur are dead and there is no trace of witness Kailash Sahni. He has further said that Kamta Singh died the following morning at 6.00 a.m. due to assault. According to the First Information report (fardbeyan) itself this witness, P.W.2 Ram Naresh Singh was coming with deceased, Kamta Singh, from Turki Railway Station and he was with the deceased when the occurrence had taken place. So, he is a competent witness. This witnes3 has lJ8en cross-examined at length on behalf of the defence, but nothing has been elicited in his cross-examination to disbelieve his evidence. It is relevant to mention here that his witness, PW 2, Ram Naresh Singh, has not said that accused, Mishri Lal Choudhary, had assaulted the deceased. 9. PW 3, Sachhidanand Singh, is dafadar, and PW 4, Rameshwar Bhagat, is chowkidar. According to them, they had gone to 'angan' of Tuntun Thakur on hulla and found Kamta Singh in injured condition, who told them, on being asked, that Rameshwar Thakur had assaulted him with bhala and Tuntun Thakur had assaulted him with lathi and Kishori and Hazari had assaulted him with chhura. PW 3, Sachhidanand Singh, has said that later on, Kamta Singh died in the hospital. According to these two witnesses (PWs 3 and 4) who are dafadar and chowkidar, they were at the tea shop during patrolling when they had heard the hulla. The evidence of these two witnesses, PWs 3 and 4, also show that deceased, Kamta Singh, was in injured condition in the house of accused, Tuntun Thakur, and he was able to speak. There does not appear any reason to disbelieve their evidence. These witnesses (PWs 3 and 4) have also not named accused Mishri Lal as an assailant of the deceased. 10. Ten witnesses have been examined in this case on behalf of the defence. PW 10 is Saraswati Devi, who was one of the accused, who has been acquitted by the trial Court and she is the wife of accused Tuntun Thakur, one of the appellants of this case. She has stated that she was sleeping on a chowki in her house and on the same chowki, her son and her husband were also sleeping. She has stated that she was sleeping on a chowki in her house and on the same chowki, her son and her husband were also sleeping. According to her, deceased Kamta Singh, had entered into her house under intoxication of toddy and took her in his lap with intention to commit rape on her. Further, according to her, she raised alarm to save her on which many people came there and they prohibited Kamta Singh from doing any act, but he did not listen to and then the people caught him (Kamta Singh) and tried to remove him and Kamta assaulted her with chhura below her knee, as result of which she fell down. She has stated that people assaulted Kamta, as a result of which he became unconscious and Mahadeo Singh, Rameshwar Bhagat and Sachida Singh and others took away Kamta Singh from her courtyard (angan). She has said in her cross-examination that Kamta Singh had died as a result of the assault in her angan. It is relevant to mention here that the case of the prosecution is that on way to his home when the informant (deceased, Kamta Singh) and his nephew, Ram Naresh Singh, had reached near the door of Sahtu Thakur, accused, Rameshwar Thakur had assaulted him with bhala which hit him on his head and panjara and accused Tuntun Thakur (husband of DW 10, Saraswati Devi) had assaulted him with lathi and accused Kishori Choudhary and his brother-in-law (Bahnoi) had assaulted him with chhura and accused Rameshwar Thakur had given him further bhala blow in his abdomen and thereafter, the accused persons had taken the informant to the house of Tuntun Thakur where the wife of Tuntun Thakur had caught him and the accused persons had assaulted him there also. She (DW 10) has said in her cross-examination that when Kamta Singh had caught her, her husband did not do anything to him and raised hulla. She has specifically said in her cross-examination that her husband had not done anything and only raised hulla. It is strange and improbable that an attempt of rape will be made on the wife of a person, who is sleeping by her side and the husband will not make any resistance and will not do any act to protect his wife physically from the commission of rape. It is strange and improbable that an attempt of rape will be made on the wife of a person, who is sleeping by her side and the husband will not make any resistance and will not do any act to protect his wife physically from the commission of rape. This itself throws grave doubt on the testimony of this witness (DW 10). Exhibit 'A' is 'he First Information Report, lodged by her against Kamta Singh, which was registered under Sections 448, 324 and 323 of the Indian Penal Code. It has already been mentioned that the First Information Report of the present case was lodged on 4.12.1982 at 2.30 a.m. and the number is Kurhani PS Case No. 250 of 1982 and the First Information Report lodged by Saraswati Devi against Kamta Singh is numbered as 252 of 1982, which was lodged at 12.15 p.m. on 4.12.1982, which clearly shows that the case of the deceased (Kamta Singh) was instituted much before the case instituted by Saraswati Devi. The facts and circumstances clearly show that DW 10, Saraswati Devi, has only made out a case to defend herself and her husband in the present case. In view of the discussions made above and the facts and circumstances of the case, the evidence of DW 10, Saraswati Devi, is not worthy of reliance. 11. DW 1 is Sahtu Thakur. He has stated that he heard hulla at the house of Tuntun and his wife was raising hulla and the people of the village went there but he had not gone there. When he had not gone there, his evidence is of little help in this case. DW 2 is Laldeo Ram. According to him also, there was hulla at 9 O'clock in the night and he went there and saw that Kamta had caught the wife of Tuntun and the wife of Tuntun was raising hulla to save her and she Vilas saying that Kamta Singh was trying to outrage her modesty. He has said in his, cross-examination that he cannot say as to how is the wife of Tuntun in look and he has not seen her. He has said in his, cross-examination that he cannot say as to how is the wife of Tuntun in look and he has not seen her. When he had gone on hulla to her house and seen that Kamta had caught the wife of Tuntun, he is expected to have seen her but in his cross-examination he has denied to have seen her and he has said that he cannot say as to how is the wife of Tuntun in look. Therefore, no reliance can be placed on his evidence. DW 3, Govind Prasad. DW 4, Baleshwar Sah, DW 5, Jadu Pandit, had made similar statement that they had gone on hulla of wife of Tuntun and seen that Kamta had caught the wife of Tuntun. DW 3, Govind Prasad, had said in his cross-examination that he had not tried to separate Kamta. It is quite unnatural that a man would see a lady being assaulted and he would not try to save her. DW 4 Baleshwar Sah, has also said in his cross-examination that nobody had tried to separate Kamta. This is highly improbable that no person would try to save a lady from being assaulted. DW 5, Jadu Pandit, has also said in his cross-examination that he did not try to separate Kamta Singh. It is an improbable act on the part of this witness. All these three witnesses (DWs 3, 4 and 5) have made- a parrot-like statement and they have also made improbable statements. In view of the facts and circumstances of the case, their evidence is not worthy of reliance. 12. DW 6 is Ramcharitra Choudhary. He has said that he had instituted a case on dafadar, Mangal Singh, and Sachidanand Singh and in that case Rameshwar Thakur and Mishri Lal had deposed in his favour. It cannot be inferred from his evidence that the accused persons have not committed the offence as alleged. 13. DW 7 is Chandrika Ram. He has said that wife of Tuntun was raising hulla that Kamta Singh had come to outrage her modesty and he went there and saw that Kamta Singh had caught wife of Tuntun and Kamta assaulted the wife of Tuntun with chhura in her leg. He has further said that many people came on hulla and he and all of them assaulted Kamta. He has further said that many people came on hulla and he and all of them assaulted Kamta. He has said in his cross-examination that his house is at a distance of one kilometre from the house of Tuntun. DW 10, Saraswati Devi, the wife of Tuntun Thakur, has said in her cross-examination that her husband had not done anything to Kamta Singh when Kamta had caught her and he had only raised hulla. It is strange that the husband of the lady did not do anything but this witness whose house is at a distance of one kilometre had assaulted Kamta Singh. In the circumstances, no reliance can be placed on his evidence. 14. DW 8 is Nandlal Ram. Ye has also said that wife of Tuntun was raising hulla that Kamta Singh was outraging her modesty and he went there and saw that Kamta had caught the wife of Tuntun and Kamta had assaulted the wife of Tuntun with chhura. He has said in his cross-examination that when he had reached there, people, after assaulting Kamta had brought him to the angan and Kamta, was unconscious due to assault and he heard the matter from others. He has also said in his cross-examination that he had not assaulted Kamta. So, admittedly, he has made contradictory statements. In the circumstances, his evidence is also not worthy of reliance. DW 9 is Prabhu Thakur. He has stated that Ram Naresh is nephew of Kamta and dafadar, Sachidanand is mamera-brother of Kamta. It cannot be inferred from the evidence of this witness (DW 9) that the accused persons have not committed the offence, as alleged. It cannot be inferred from the above oral and documentary evidence adduced on behalf of the defence that the accused persons have not committed the offences as alleged. 15. The above evidence adduced on behalf of the prosecution does not show that accused-appellant, Mishrilal Choudhary, has committed the offences as alleged. It cannot be inferred from the above evidence adduced on behalf of the prosecution that accused appellant Mishrilal Choudhary has committed the offence as alleged. Therefore, accused, Mishrilal Choudhary, is acquitted of the charge under Sections 302/34 of the Indian Penal Code. Accused, Mishrilal Choudhary is on bail. He is discharged from the liabilities of his bail-bond. 16. It cannot be inferred from the above evidence adduced on behalf of the prosecution that accused appellant Mishrilal Choudhary has committed the offence as alleged. Therefore, accused, Mishrilal Choudhary, is acquitted of the charge under Sections 302/34 of the Indian Penal Code. Accused, Mishrilal Choudhary is on bail. He is discharged from the liabilities of his bail-bond. 16. The above evidence adduced on behalf of the prosecution proves beyond all reasonable doubts that accused Rameshwar Thakur, Kishori Lal Choudhary, Hazari Lal Choudhary and Tuntun Thakur have committed the offence punishable under Sections 302/34 of the Indian Penal Code. The judgment and order of conviction and sentence, passed by the learned Additional Sessions Judge, Muzaffarpur, against accused Rameshwar Thakur, Kishori Lal Choudhary, Hazari Lal Choudhary and Tuntun Thakur does not call for any interference and their 'conviction and sentence under Section 302/34 of the Indian Penal Code is confirmed. Accused Rameshwar Thakur, Kishori Lal Choudhary, Hazari Lal Choudhary and Tuntun Thakur are on bail. Their bail-bonds are cancelled and they are directed to surrender in the Court of IInd Additional Sessions Judge, Muzaffarpur, forthwith to serve .out their sentences. The learned Additional Sessions Judge will also take all necessary steps in this regard. 17. With the above modification in the judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, this criminal appeal is dismissed.