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2000 DIGILAW 719 (PAT)

Sundar Rai v. State Of Bihar

2000-05-12

M.L.VISA, R.N.PRASAD

body2000
Judgment M.L.Visa, J. 1. Both these appeals have been heard together and are being disposed of by this common judgment because both the appeals arise out of the same judgment and order dated 18.7.1986 passed by District and Sessions Judge, Katihar in Sessions Case No. 42 of 1981 convicting and sentencing all the appellants to undergo imprisonment for life under Section 302 read with Section 149 of the Indian Penal Code (in short, IPC). The appellants Sachho Rai, Ramdeo Rai, Jhapti Rai and Foundari Rai have been further convicted and sentenced to undergo RI for one year each under Section 148, IPC and rest of the appellants have been further convicted and sentenced to undergo RI for a period of six months each for the offence under Section 147, IPC. The sentences as passed against the appellants have, however, been ordered to run concurrently. 2. The case of prosecution in short is that on 15.10.1980 at about 2.30 p.m., the informant Upendra Prasad Yadav (PW 7) along with his maternal cousin Chameli Yadav (since deceased) had gone to cut grass at Behura Diara (Karhagola) where his maternal uncle Bhubneshwar Yadav was already there and was cutting grass. All the appellants along with 7-8 others all of a sudden armed with lathis and bhala came there and asked the informant not to cut grass. When the informant replied that he had planted the crop and he would cut the grass appellants Ganeshi Rai, Jhapti Rai, Mahendra Rai and Ramdeo Rai started assaulting Chameli Yadav with bhalas and other appellants started assaulting him with lathis. Chameli Yadav died in the field of Kaleshwar Yadav. The occurrence was witnessed by Bhubneshwar Yadav (since dead), Shankar Yadav (not examined), Ramdeo Yadav (not examined) and Rajendra Yadav (PW 5) from nearby places and the informant and these witnesses out of fear remained quiet. While leaving the scene of occurrence the appellants sank the boat by which the informant had gone to Diara and for this reason the informant could not go to police station on the day of occurrence to lodge the case. On the next day in the morning the informant by another boat crossed the river and went to police station and got his FIR (Ext. 1) lodged there. On the next day in the morning the informant by another boat crossed the river and went to police station and got his FIR (Ext. 1) lodged there. About the genesis of the occurrence the informant in the FIR stated that proceedings under Sections 145 and 107 of the Code of Criminal Procedure (in short, CrPC) were pending between him and the appellants. After investigation the police submitted charge-sheet under Sections 147, 148, 149 and 302, IPC against all the appellants, charge under Section 148, IPC against appellants, Sundar Rai and Sachho Rai and rest of the appellants were not sent up for trial. Accordingly, appellants Sundar Rai and Sachho Rai were put on trial but after examination of some witnesses on behalf of prosecution the remaining appellants were also summoned to face trial. After appearance of the remaining appellants their charge under Section 302 read with Section 149, IPC against appellants, Sachho Rai, Jhapti Rai, Ramdeo Rai and Foudari Rai and charge under Section 147, IPC against the remaining appellants were framed. Appellants denied the charges levelled against them and pleaded not guilty. Their case as it appears from the trend of cross-examination of prosecution witnesses was total denial of their participation in the occurrence and their false implication in this case. After the trial the Court below found all the appellants guilty under Section 302, IPC read with Section 149, IPC and it further found appellants Sachho Rai, Jhapti Rai, Ramdeo Rai and Foudari Rai guilty under Section 148, IPC and remaining appellants guilty under Section 147, IPC and, accordingly, convicted and sentenced them as indicated above. 3. In order to prove its case the prosecution has examined ten witnesses. Upendra Prasad Yadav PW 7, the informant and Rajendra Prasad Yadav PW 5) are eye-witnesses to the occurrence. Bhagwan Pandit (PW 1) has been tendered. Vinod Prasad Bhagat (PW 2) is a witness on the inquest report. Baban Tiwary (PW 3) and Sabhapati Yadav (PW 4) are forma] witnesses, who prove the FIR (Ext. 2) and signature of Tapeshwar Sharma, the then officer-in-charge of Barari Police Station (Ext. 3) on the FIR. Dr. Bahadur Thappa (PW 6) has also proved the signature of Tapeshwar Sharma (Ext. 3/1) on the FIR. Dr. Gaya Prasad Diwakar (PW 8), who had held post-mortem examination on the dead body of Chameli Yadav. 2) and signature of Tapeshwar Sharma, the then officer-in-charge of Barari Police Station (Ext. 3) on the FIR. Dr. Bahadur Thappa (PW 6) has also proved the signature of Tapeshwar Sharma (Ext. 3/1) on the FIR. Dr. Gaya Prasad Diwakar (PW 8), who had held post-mortem examination on the dead body of Chameli Yadav. Sri Raghunath Mishra (PW 9) is also a formal witness, who has proved the deposition of witness Bhuvneshwar Yadav which is marked as Ext. 5. Kapil Prasad Sinha (PW 10) is also a formal witness, who has proved the inquest report in the pen of Tapeshwar Prasad Sharma (Ext. 6). 4. Upendra Prasad Yadav (PW 7) the informant, in his evidence has stated that on the day of occurrence he along with his brother Rajendra J J Yadav (PW 5) had gone to cut grass at a place known as Bahaura Bahiyar after crossing the fiver Ganges on boat where he found deceased Chameli Yadav and Bhubnesh-war Yadav from before. After sometime all the appellants came there. Appellants Ramdeo Rai, Ganeshi Rai, Mahendra Rai and Jhapti Rai were armed with bhala and remaining appellants were armed with lathis. The appellants asked him not to cut grass and when he replied that he was cutting grass in his own field, the appellants assaulted Chameli Yadav, who happened to be his cousin with bhala and lathis as a result of which Chameli Yadav died at the spot. Thereafter, the appellants dragged the dead body of Chameli Yadav on the western ridge of the field. The land of Kaleshwar Yadav is adjacent west to his field. He has further stated that there were 10-12 other persons with the appellants and the appellants after occurrence sank his boat in the river and thereafter, they left the scene of occurrence on their own boat. Because, his boat being sunk in the river he remained in his field on the date of occurrence and on the next day in the morning he along with Bhubneshwar Yadav crossed the river on a hired boat and went to police station leaving behind Shanker and Ganpat near the dead body of Chameli Yadav and lodged a case at the police station. He has admitted that the land where the occurrence took place is in his possession since last 15 years and there was a proceeding between him at one side and appellants Sundar Rai and Sachho Rai on the other side under Section 145, Cr PC in respect of this land. 5. Rajendra Prasad Yadav (PW 5) supporting the case of prosecution has stated that on the day of occurrence appellants assaulted deceased Chameli Yadav with lathi and bhala. He has not named appellants Baldeo Rai and Mahendra Rai and has named only the remaining appellants. 6. There are only two eye-witnesses to the occurrence, who are informant (PW 7) and his own brother Rajendra Prasad Yadav (PW 5). On examining their evidence we find that informant has stated that he along with PW 5 went to the place of occurrence where the deceased and Bhubneshwar Yadav were already there from before engaged in cutting grass and by that time they had already cut two bundles of grass and he and his brother Rajendra Prasad Yadav also sat near them for cutting grass. Rajendra Prasad Yadav (PW 5) has stated that he, informant, deceased Chameli Yadav and Bhubneshwar Yadav all four had gone to cut grass at Bahaura Bahiyar and they all had gone there on a boat and after reaching Bahaura Bahiyar they left their boat near the field but in cross-examination he has said that deceased Chameli Yadav and Bhubneshwar Yadav had come to the place of occurrence from village Khawaspur in their own boat and their boat was kept towards eastern side of his field. He has said that appellants Sachho Rai, Ramdeo Rai, Foudari Rai and Jhapti Rai assaulted the deceased with bhala and thereafter, deceased was assaulted with lathis by other appellants. The informant in his evidence has given a different account of assault on deceased. According to him first of all appellants Mahendra Rai and Ramdeo Rai assaulted the deceased with bhala and thereafter, remaining appellants assaulted the deceased with lathis and bhala. He has further stated that appellants Mahendra Rai and Ramdeo Rai assaulted the deceased with bhala on his head as a result of which blood started dropping from the head of the deceased. The informant has stated that PW 5 was assaulted by appellant Banarashi Rai with lathi and he received injury on his back. He has further stated that appellants Mahendra Rai and Ramdeo Rai assaulted the deceased with bhala on his head as a result of which blood started dropping from the head of the deceased. The informant has stated that PW 5 was assaulted by appellant Banarashi Rai with lathi and he received injury on his back. PW 5 also in his evidence has stated that he was assaulted by appellant Banarashi Rai but has also admitted that when he was examined as a witness when appellants Sachho Rai and Sundar Rai were facing trial he did not state that he was assaulted by appellant Banarashi Rai. In the fardbeyan it is not stated that this witness was also assaulted by any appellant. The informant (PW 7) has also admitted that before IO and his earlier evidence in the Court he had not stated, that PW 5 was also assaulted with lathi by any appellant. The case of defence is that during the course of investigation this witness had stated before the IO that he was assaulted by appellant Ramdeo Rai receiving injury on his shoulder and had stated that only appellant Sachho Rai assaulted the deceased with bhala and he had not stated that appellants Jhapti Rai, Ramdeo Rai and Foundari Rai were also armed with bhala and he had not named appellant Ganeshi Rai among the assailants. The prosecution has not examined the IO on the ground that the IO is dead. When the defence has drawn the attention of prosecution witnesses towards the contradictions in their earlier statements made before the IO and in their evidence and the prosecution could not examine the IO because of his death in that situation it was for the prosecution to bring on record the earlier statements of these witnesses to show that there is no such contradiction in the earlier statements and evidence of witnesses as suggested by defence. The prosecution has not brought the earlier statements of witnesses on record. A prejudice, therefore, has been caused to the appellants because they did not get opportunity to prove the contradictions in the earlier statements and evidence of witnesses in spite of the fact that they drew the attention of prosecution witnesses towards such contradictions. 7. The prosecution has not brought the earlier statements of witnesses on record. A prejudice, therefore, has been caused to the appellants because they did not get opportunity to prove the contradictions in the earlier statements and evidence of witnesses in spite of the fact that they drew the attention of prosecution witnesses towards such contradictions. 7. Rajendra Prasad Yadav (PW 5) in his evidence has said that first of all appellant Sachho Rai gave a bhala blow to the deceased on his back, second bhala blow was given by appellant Ramdeo Rai on the left side of the waist and below the panjara (which according to Dr. Gaya Prasad Diwakar (PW 8) means lower and side part of the chest) third bhala blow was given by appellant Foudari Rai which hit right side of abdomen of deceased and fourth bhala blow was given by appellant Jhapti Rai on the left eye of the deceased. This story is not supported by the medical evidence. Dr. Gaya Prasad Diwakar (PW 8), who held post-mortem examination on the dead body of the deceased did not find any bhala injury either on the back or paniara or abdomen of the deceased. His evidence shows that he found five incised wounds and five bruises on different parts of body of the deceased but, according to him incised wounds found above left eye-brow, right frontal region were caused by sharp piercing objects whereas two incised wounds over volt of the scalp were caused by sharp cutting weapon. So, in his opinion, incised wounds found on the body of the deceased were caused by sharp piercing object and sharp cutting weapon. It means that two different types of weapons were used for these incised wounds. This does not support the case of prosecution according to which the appellants were carrying bhala and lathis and there was no any other sharp cutting weapon with anyone of them. 8. As discussed above there are only two eye-witnesses to the occurrence, the informant (PW 7) and his own brother (PW 5). In the fardbeyan the informant stated that he along with deceased had gone to cut grass where he found his mausa Bhubneshwar Yadav, who is dead now, was already present there and was cutting grass and thereafter, the occurrence took place. In the fardbeyan the informant stated that he along with deceased had gone to cut grass where he found his mausa Bhubneshwar Yadav, who is dead now, was already present there and was cutting grass and thereafter, the occurrence took place. About PW 5, it is stated in the fardbeyan that this witness and others saw the occurrence from near by places. So the fardbeyan does not even admit the presence of PW 5 at the place of occurrence. But, in his evidence the informant has stated that he along with (PW 5) had gone to place of occurrence where he found the deceased and Bhubneshwar Yadav already present there from before. In the fardbeyan the informant has stated that first of all the appellants enquired from him why he was cutting grass and when he replied that he was cutting his grass in his own field the appellants assaulted the deceased and he out of fear moved at some distance from where he saw the occurrence. In his evidence he has stated that when he saw the appellants they were coming peacefully and at that time he did not apprehend any danger from their side but when they started assaulting the deceased he knew that they had come there for assault. It does not come to reason that when the appellants were having litigation with the informant and they found him cutting grass in the same land which was the subject-matter of dispute, they instead of doing anything to informant started assaulting Chameli Yadav and continued the assault till he died. About the delay in lodging the FIR the informant has stated that because the appellants after the occurrence sank his boat on which he had gone to place of occurrence after crossing the river, therefore, he was compelled to stay at the place of occurrence for the whole night and on the next day in the morning he on a hired boat crossed the river and went to police station and lodged the FIR after keeping Shanker and Ganpat to watch the dead body. Neither Shankar nor Ganpat has been examined in this case. Rajendra Prasad Yadav (PW 5) has stated that he and informant had gone to place of occurrence on their boat which was sunk into the river by appellants after the occurrence. Neither Shankar nor Ganpat has been examined in this case. Rajendra Prasad Yadav (PW 5) has stated that he and informant had gone to place of occurrence on their boat which was sunk into the river by appellants after the occurrence. He has further stated that deceased and Bhubneshwar Yadav had come to place of occurrence from Khawaspur on their own boat and they had also kept their boat near the boat of informant. It is not the case of prosecution that the appellants sank the boat of deceased and Bhubneshwar Yadav also. In this situation the delay in lodging the FIR for non-availability of boat to cross river does not seem to be convincing. Even on the point of number of persons taking part in offence the evidence of informant and his brother is quite contradictory. The informant in his evidence has named all the 13 appellants and has said that there were 10-12 other persons also with them whereas PW 5 has not named appellants Baldeo Rai and Mahendra Rai. He has named the remaining 11 appellants. In para 3 of his evidence, no doubt, he has said that a mob of about 14-16 persons came but in his earlier evidence (Ext. A) when he was examined as a witness when only appellants Sachho Rai and Sundar Rai were facing trial he stated that a mob of about 10-11 persons came there and he further stated that four persons of the mob assaulted the deceased with bhala and remaining seven persons assaulted the deceased with lathis. This evidence clearly shows that there were only eleven persons in all. 9. Enmity between informant and appellants is admitted. There is no independent witness in this case to support the case of prosecution in spite of the fact that the informant in his fardbeyan and evidence has stated that the occurrence was seen by a number of persons. The informant and his own brother (PW 5), who are only eye-witnesses to the occurrence, have given contradictory evidence on the point of manner of occurrence. The medical evidence also shows that two types of weapons for causing incised injuries were used which is not the case of prosecution according to which only bhala was used. The informant and his own brother (PW 5), who are only eye-witnesses to the occurrence, have given contradictory evidence on the point of manner of occurrence. The medical evidence also shows that two types of weapons for causing incised injuries were used which is not the case of prosecution according to which only bhala was used. The evidence of informant, who is admittedly on inimical terms with the appellants and his own brother does not inspire confidence considering the contradictions in their evidence on a number of points and also delay in lodging the FIR. No doubt, the deceased died of injuries inflicted to him by piercing, sharp cutting and hard and blunt substances but then the possibility of getting the dead body of deceased lying at the place of occurrence by informant and thereafter, falsely implicating the appellants in this case cannot be ruled out. Be what it may so far the case of appellants is concerned, the prosecution has not come up with a cogent and reliable evidence to prove the appellants are responsible for the injuries which were found on the body of deceased and which resulted into his death. On the basis of evidence of informant, who is admittedly on inimical terms with the appellants, and admission of his own brother with contradictions not only on the manner of occurrence but also on the number of persons participating in the occurrence as well as delay in lodging the FIR and considering the medical evidence suggesting the use of weapons in the offence which is not in accordance with the case of prosecution the conviction and sentence of appellants cannot be sustained. 10. In the result, both the appeals are allowed and the appellants are acquitted. The judgment and order of Court below convicting and sentencing the appellants is hereby set aside. The appellants, who are on bail, are discharged from the liability of their bail bonds. R.N.Prasad, J. 11 I agree.