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2000 DIGILAW 617 (PAT)

Ram Bilash Bhagat v. State Of Bihar

2000-04-21

M.L.VISA, R.N.PRASAD

body2000
Judgment M.L.Visa, J. 1. This appeal is directed against the judgment and order dated 13.8.1987 passed by the 4th Additional Sessions Judge, Motihari, in Sessions Trial No. 233 of 1982/238 of 1987 convicting and sentencing the appellants to undergo imprisonment for life under Section 302 of the Indian Penal Code (in short, IPC). 2. The case of prosecution, in short, is that on 31.12.1981 the informant Kailasiya Devi (PW 3), her husband Shiv Narayan Bhagat (PW 1) and her brother Ram Bachan (since deceased) at about 8 PM after taking meal were sitting at the darwaja of the house of informant near fire to warm themselves when all the appellants along with co-accused Ram Daresh Bhagat came there and took Ram Bachan Bhagat with them on the pretext of watching Kela (banana) and lati (sweet potato) crops in their fields. When Ram Bachan Bhagat did not return for a considerable time it caused anxiety to the informant. About one and half hour thereafter the informant heard hulla from the eastern side of the village on which she along with her husband and other villagers went to the place from where hulla was coming and found that her brother Ram Bachan Bhagat was lying dead on the road with marks of injuries on his neck. She further saw that witnesses Ramji Bhagat (PW 6), Suraj Bhagat (PW 5), Kailash Bhagat (PW 2) & Ram Bilash Bhagat son of Dwarika Bhagat (PW 4) had caught hold of appellant Ram Bilash Bhagat. In the meantime, Mukhiya Shri Uma Kant Sharan (not examined), Rajendra (not examined) and others came there. Witnesses Ramji Bhagat, Suraj Bhagat, Kailash Bhagat and Ram Bilash Bhagat son of Dwarika Bhagat told the informant that all the four appellants and co-accused Ram Daresh Bhagat had kept the dead body of deceased on the road by dragging from the western side and they apprehended appellant Ram Bilash Bhagat and identified others when they were fleeing away. Appellant Ram Bilash Bhagat confessed his guilt. Enmity between the parties is said to be the motive of occurrence. It is the further case of the informant that the informant in order to look after her cultivation had kept her deceased brother Ram Bachan Bhagat with her since last 5-6 years. On the next day i.e. on 1.1.1982 at about 8 a.m. the fardbeyan (Ext. Enmity between the parties is said to be the motive of occurrence. It is the further case of the informant that the informant in order to look after her cultivation had kept her deceased brother Ram Bachan Bhagat with her since last 5-6 years. On the next day i.e. on 1.1.1982 at about 8 a.m. the fardbeyan (Ext. 2) of the informant was recorded and a case under Section 147, 302 and 341, IPC was registered against the appellants and co-accused Ram Daresh Bhagat. After investigation charge-sheet against all the four appellants and against co-accused Ram Daresh Bhagat along with two more namely, Asharfi Bhagat and Roja Mian was submitted under Secrion 302/34, IPC. After taking cognizance the case was committed to the Court of Sessions where charges under Sections 147 and 302, IPC were framed against the appellants and other two co-accused persons. During the pendency of trial one co-accused, namely Roja Mian died and the trial proceeded against the appellants and Ram Daresh Bhagat and Asharfi Bhagat. The case of appellants before the Court below was complete denial of charges against them and their false implication on account of enmity and grudge. After trial the Court below found the appellants guilty and accordingly convicted and sentenced them as indicated above. Co-accused Ram Daresh Bhagat and Asharfi Bhagat were not found guilty and they were acquitted. 3. In order to prove its case the prosecution has examined 10 witnesses. PW 3 is the informant and in her deposition her name has been recorded as Kaushalya Devi whereas in the fardbeyan it is Kailasiya Devi. Dr. Vijay Narayan Singh (PW 9) is the doctor who had conducted post-mortem examination on the dead body of deceased. Sheoji Pd. Singh (PW 10) is the I.O. Ramji Bhagat (PW 6) has been tendered. Shiv Narayan Bhagat (PW 1), the husband of informant, and Kailash Bhagat (PW 2) have not supported the case of prosecution. Ram Bilash Bhagat son of Dwarika Bhagat (PW 4) and Suraj Bhagat (PW 5) are witnesses who had caught the appellant Ram Bilash Bhagat from the place of occurrence where dead body of deceased was found. Ramdeo Bhagat (PW 7) is the Dalpati and he had gone to the place of occurrence on hearing hulla and in whose presence appellant Ram Bilash Bhagat was handed over first to Mukhiya and thereafter to him. Ramdeo Bhagat (PW 7) is the Dalpati and he had gone to the place of occurrence on hearing hulla and in whose presence appellant Ram Bilash Bhagat was handed over first to Mukhiya and thereafter to him. Witnesses Ramji Bhagat, Suraj Bhagat and Kailash Bhagat had kept appellant Ram Bilash Bhagat with them and handed over him to Mukhiya and thereafter Mukhiya put appellant Ram Bilash Bhagat in his custody and when the police came appellant Ram Bilash Bhagat was handed over to police. Nand Kishore Bhagat (PW 8) on the night of occurrence had heard hulla and had seen co-accused Asharfi Bhagat and Roja Mian running away. 4. Dr. Vijay Narayan Singh (PW 9) has stated that on 2.1.1982 he held post mortem examination on the dead body of deceased Ram Bachan Bhagat and found the following ante mortem injuries : (i) Ecchymosis was seen around the neck in anterior and lateral surfaces of the neck and width was between 1" x 1/2 and length was about 4-1/2" extending upward around either side. (ii) Ecchymosis seen on right anterolateral surface of chest between 5th and 7th ribs, area about 5" x 3". (iii) Ecchymosis seen in left anterolateral surface of chest between 6th and 7th ribs, area 2" x 2". He has further stated that on dissection haemorrhaging mark was seen around neck. Beneath the ecchymosis fracture of hyloid bone was found. Haemorrhaging spot was seen around trachea which was partly obliterated and displaced and fracture of right 5th and 6th rib and also fracture of left 7th rib was found. According to him, the cause of death was asphyxia, shock and haemorrhage caused by injury over trachea and rupture of lungs and spleen and time elapsed since death was 48 hours. He has proved his post-mortem examination report (Ext. 1). From his evidence it appears that death of deceased was homicidal. Now it has to be seen what evidence has been led by prosecution against the appellants for making them responsible for the murder of the deceased. 5 In this case, admittedly the prosecution is not in possession of ocular evidence of any witness claiming himself to be the eye-witness to the occurrence. The entire case of prosecution is based on circumstances. 5 In this case, admittedly the prosecution is not in possession of ocular evidence of any witness claiming himself to be the eye-witness to the occurrence. The entire case of prosecution is based on circumstances. About the circumstances we find that the informant Kaushalya Devi (PW 3), in her evidence, has said that on the night of occurrence at 8-9 p.m. the appellants along with co-accused Ram Daresh Bhagat came to the darwaja of her house were she was sitting along with her husband and deceased near fire and they took away the deceased with them on the pretext of watching Kela and lati crop in their field and about one and half hour thereafter she heard hulla coming from eastern side of the village. She along with her husband and villagers went there and found the dead body of her brother lying on the road. PW 2, PW 4, PW 5 and PW 6 were there who had caught appellant Ram Bilash Bhagat and they told her that appellant Ram Bilash Bhagat killed her brother and had kept the dead body on the road. About the motive she had stated that she had kept the deceased with her to look after the cultivation and there was much progress in her cultivation which caused jealous to appellants who are her pattidars (agnates). She has further stated that her fardbeyan was recorded by police. Out of witnesses named by her, Kailash Bhagat (PW 2) has simply stated that on a Thursday at about 4 a.m. the deceased was killed but he did not see anybody killing the deceased. He has not stated anything more and he has not been declared hostile. In cross-examination he has stated that his statement was not recorded by the police. About other witnesses, Ramji Bhagat (PW 6) has been tendered. Now there remains only two witnesses who are Ram Bilash Bhagat son of Dwarika Bhagat (PW 4) and Suraj Bhagat (PW 5) who, according to informant, were present when she went to place where she had seen the dead body of her brother. About other witnesses, Ramji Bhagat (PW 6) has been tendered. Now there remains only two witnesses who are Ram Bilash Bhagat son of Dwarika Bhagat (PW 4) and Suraj Bhagat (PW 5) who, according to informant, were present when she went to place where she had seen the dead body of her brother. Ram Bilash Bhagat son of Dwarika Bhagat (PW 4) has said that on the night of occurrence at 10 p.m. he was at his darwaja when Suraj Bhagat (PW 5) and Ramji Bhagat (PW 6) came to him and requested him to accompany them for some distance because they were feeling some fear and he then accompanied them and when he reached near a gachhi he heard some whispering sound but in spite of it he proceeded further. After some time he heard the sound caused by dragging of something on which he had his companions raised alarm and proceeded further and saw that one man had fallen in a ditch and three others were running away. The man who had fallen in the ditch was caught by him and it was appellant Ram Bilash Bhagat. Amongst the persons who fled away he identified appellants Methur Bhagat, Nathuni Bhagat and Bachchu Bhagat in the light of torch. On hulla his father, the informant and her husband came there and Mukhiya was informed who also came there and appellant Ram Bilash Bhagat was handed over to Mukhiya. Suraj Bhagat (PW 5) has said that on the night of occurrence when he along with Ramji Bhagat (PW 6) was returning from the house of Mukhiya he went to the house of Kailash Bhagat (PW 2) and Ram Bilash Bhagat (PW 4) and requested them to accompany them and thereafter Kailash Bhagat and Ram Bilash Bhagat carrying Lathi and torch accompanied them and when they all reached near the turning of road they heard whispering sound and thereafter they also heard sound of dragging of something and when they proceeded further PW 2 flashed his torch and they found that three persons were running away and one who was appellant Ram Bilash Bhagat had fallen in a ditch and he was caught. About three persons who fled away he has said that he did not identify them. This is all which has been led against the appellants. 6. About three persons who fled away he has said that he did not identify them. This is all which has been led against the appellants. 6. Now after examining the evidence of witnesses we find that informant in her fardbeyan has stated that when she reached near the place where dead body of her brother was lying she found PW 2, PW 4, PW 5, and PW 6 were there who had caught appellant Ram Bilash Bhagat and they told her that all the four appellants along with co-accused Ram Daresh Bhagat had kept the dead body of her brother on road after dragging it from the west side. In her evidence she is silent on this point and has simply stated that these witnesses told her that appellant Ram Bilash Bhagat had killed her brother. None of these witnesses in his evidence has said that the appellant Ram Bilash Bhagat killed the deceased. Ram Bilash Bhagat son of Dwarika Bhagat (PW 4) who claims to have identified appellants Methur Bhagat, Nathuni Bhagat and Bachchu Bhagat in the light of torch has admitted that he is the brother of informant, meaning thereby he is the brother of deceased also. In para-4 of his evidence he has also stated that PW 5 and PW 6 who had come to his house with request to accompany them told him that it was a dark night therefore they were feeling fear. In such circumstance his evidence that he identified appellants Methura, Nathuni and Bachhu in the light of torch when they were fleeing away does not appear to be convincing. Moreover, as stated above, Suraj Bhagat (PW 5) who was also with him could not identify the persons who were running away. On the point of catching hold of appellant Ram Bilash Bhagat we find that Ram Bilash Bhagat son of Dwarika Bhagat (PW 4) in his evidence has said that he did not mark whether at that time appellant Ram Bilash Bhagat was carrying a lota (small metal pot) or not but he has admitted that appellant Ram Bilash Bhagat had told him that he had gone there to ease out and when he saw the dead body and these witnesses he started running away. Suraj Bhagat (PW 5) in para-3 of his cross examination has stated that at that time appellant Ram Bilash Bhagat was carrying a lota in his hand and he told that he had gone there to ease out. He has further stated that it was the night and he cannot exactly remember the time but it was the time of easing out. The informant in her fardbeyan has said that when her brother was taken by appellants with them at that time she along with her husband Shiv Narayan Bhagat (PW 1) was sitting at her darwaja near fire. She has also stated in the fardbeyan that after hearing hulla from the eastern side of village, she along with her husband went there and saw the dead body of her brother. In her evidence also she has stated the same but then Shiv Narayan Bhagat (PW 1) the husband of informant has not supported the case of prosecution. He has simply said that it is a matter of one Thursday at 4 a.m. without explaining the matter or giving any other detail. This timing coupled with the evidence of PW 5 that when appellant Ram Bilash Bhagat was caught he was carrying a lota and had told him that he had gone there to ease out and that the time was of easing out makes the case of prosecution on the point of time of apprehension of appellant Ram Bilash Bhagat quite doubtful. 7. Considering the entire evidence on record we find that the evidence of informant that appellants took away her brother with them has not been supported by her husband who, according to her, was also there sitting with her at the darwaja of the house. About the time also when appellant Ram Bilash Bhagat was caught we find that there is no convincing evidence that he was caught one and half hours after the deceased was taken by him and his companions. About the time also when appellant Ram Bilash Bhagat was caught we find that there is no convincing evidence that he was caught one and half hours after the deceased was taken by him and his companions. As stated above, the case of informant in fardbeyan is that when she reached the place where dead body of her brother was lying she was told by witnesses that appellants and co-accused Ram Daresh Bhagat had committed the murder of her brother but in her evidence she has simply stated that witnesses told her that it was appellant Ram Bilash Bhagat who committed the murder of her brother but none of the witnesses has supported this evidence by deposing that he told the informant that appellant Ram Bilash Bhagat committed the murder of her brother. Enmity with the appellants is admitted. The evidence of Ram Bilash Bhagat son of Dwarika Bhagat (PW 4) that he identified appellants Methur Bhagat, Nathuni Bhagat and Bachchu Bhagat while they were running in the light of torch is not supported by Suraj Bhagat (PW 5). In such a case in which there is no eye-witnesses to the occurrence like the present one and which is based purely on circumstantial evidence, the existence of such circumstance is required to be proved by evidence which taken together lead to only conclusion that the offence was committed by the accused. In the present case, we find that no such circumstances have been proved by the prosecution and the evidence on record does not lead to hold that the appellants committed the murder of brother of informant. 8. In the result, this appeal is allowed. The judgment and order of the Court below convicting and sentencing the appellants are set aside. The appellants who are on bail are discharged from the liability of their bail bonds. R.N.Prasad, J. 9 I agree.