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2000 DIGILAW 807 (PAT)

Rajbali Chaudhary v. State of Bihar

2000-06-28

M.L.VISA, R.N.PRASAD

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Order M.L.VISA, J. Both these appeals have been heard together and are being disposed of by this common judgment because both these appeals are directed against the judgment and order dated 27.6.87 passed by 1st Additional Sessions Judge, Muzaffarpur, in Sessions Trial No. 162 of 1978/106 of 1983, convicting and sentencing all the appellants to undergo imprisonment for life under section 449 of the Indian Penal Code (in short, IPC). Appellant Raj Kishore Chaudhary has further been convicted and sentenced to undergo imprisonment for life under section 302 IPC and remaining appellants have further been convicted and sentenced to undergo imprisonment for life under section 302/149 I PC. Besides this, appellant Raj Kishore Chaudhary has further been convicted under section 148/324 IPC and remaining appellants have further been convicted under section 147 I PC but no separate sentence under these heads has been passed against them. 2. The case of prosecution as disclosed in the fardbeyan (Ext.4) of informant Shailendra Kumar (PW 8) recorded on 23.7.77 at Sahebganj Hospital by the then SI Uma Kant Sharma (PW 11) is that on 22.7.77 at about 9.30 PM the informant was sitting at the 'darwaja' of his house and his father deceased Ram Chandra Kunwar had returned from Muzaffarpur from duty as well as after attending a case there and he after taking out his shirt was keeping the same on the 'chowki' kept in the 'verandah' of the house. At that time all the appellants along with 2-3 others came there and they surrounded the father of informant. Appellant Raj Kishore Chaudhary was armed with bhala, appellant Rajbali Chaudhary was armed with gun, appellant Uma Shankar Chaudhary was armed with pharsa, appellant Ramashray Tiwary was armed with 'phatha' (bamboo stick) and other appellants were armed with lathis. Appellant Raj Kishore Chaudhary after giving order to his companions to kill the father of informant gave a bhala blow on the abdomen of the father of informant. The father of informant fell down. When the informant tried to rescue him appellant Raj Kishore Chaudhary gave a bhala blow on the back of the informant. The informant also fell down. On hulla villagers, namely, Nirsu Kunwar (PW1), Shankar Kumar (not examined), Mugal Kunwar (not examined) Maheshwar Kunwar (not examined), Munar Ram (not examined), Nathuni Ram (not examined) and Deo Kunwar (not examined) came there. Appellants thereafter fled away towards their residences. The informant also fell down. On hulla villagers, namely, Nirsu Kunwar (PW1), Shankar Kumar (not examined), Mugal Kunwar (not examined) Maheshwar Kunwar (not examined), Munar Ram (not examined), Nathuni Ram (not examined) and Deo Kunwar (not examined) came there. Appellants thereafter fled away towards their residences. The informant and his father were brought to hospital, here fardbeyan of the informant was recorded. About the genesis of occurrence, the informant in his fardbeyan has stated that there was a land dispute between the informant and appellants Uma Shankar Chaudhary and Ramashray Tiwary and proceedings under sections 144, 145 and 107 Cr. P.C. and a criminal case between them were pending at the time of occurrence. On the basis of fardbeyan a case under sections 147, 148, 149,324 and 307 IPC was registered against the appellants. On 25.7.77 the father of informant succumbed to injuries and section 302 IPC was also added to the FIR. After investigation police submitted charge-sheet under sections 147, 148, 324, 302 and 448 IPC against all the appellants. After cognizance the case was committed to the court of sessions where charge under section 449 IPC against all the appellants, charges under sections 148 and 302 IPC against Raj Kishore Choudhary, charges under sections 148, 302/149 IPC against appellants Rajbali Chaudhary and Uma Shankar Chaudhary and charges under sections 147 and 302/149 IPC against appellants Bishwanath Chaudhary, Kedar Chaudhary, Baiju Chaudhary, Sheo Chaudhary, Biralal Chaudhary• and Ramashray Tiwary were framed. The appellants denied the charges levelled against them. Their case as it appears from the trend of cross examination of prosecution witnesses and from the witnesses examined on their behalf is that at the time of occurrence appellant Raj Kishore Chaudhary had gone to Dewaria to see his ailing sister and on the day of occurrence the informant and his party had gone to the land of appellants, up-rooted their granary and started looting the grains and when the appellants protested the prosecution party assaulted them with lathi and bhala and they also set the straw of appellants on fire and when villagers came there and tried to rescue the appellants, in that process father of informant received injuries. The court below after trial found the appellants guilty and convicted and sentenced them as indicated above. 3. In order to prove its case, the prosecution has examined 12 witnesses. Shailendra Kumar (PW8) is the informant, Dr. The court below after trial found the appellants guilty and convicted and sentenced them as indicated above. 3. In order to prove its case, the prosecution has examined 12 witnesses. Shailendra Kumar (PW8) is the informant, Dr. Anant Mohan Das (PW 12) is the doctor who had first examined the deceased Ram Chandra Kunwar on 23.7.77. Dr. J.P. Saxena (PW 7) is the doctor who had conducted post mortem examination on the dead body of deceased Ram Chandra Kunwar. Bishwanath Prasad (PW 4) is a formal witness who has proved the protest petition (Ext.1) and vakalatnama (Ext.2). Khelawan Rai (PW 6) is a tendered witness. Jawahar Pd. Ratnesh (PW 9) was posted as Judicial Magistrate, 1st Class, at the relevant time who recorded the dying declaration of the deceased. Rajendra Jha (PW 10) is also a formal witness who has proved formal FIR (Ext.6). Uma Kant Sharma (PW 11) is the Investigating Officer (I.O.). Nirshu Kunwar (PW 1). Arbind Kumar (PW 2), Sumitra Devi (PW 3) and Manoj Kumari (PW 5) are said to be the eye witnesses to the occurrence. 4. Anant Mohan Das (PW 12), in his evidence, has stated that on 23.7.77 he was posted as Deputy Superintendent, Sadar Hospital, Muzaffarpur and on that day he had admitted the deceased in injured condition in his hospital and had found incised wound on the abdominal wall left to the epigastrium 3" x 1" deep to the abdominal cavity. According to him, the wound was further extended and it was found that left rectus muscle was cut and the peritonial was also cut. He has further stated that he had performed operation of the deceased and the injury found on the deceased was sufficient to cause death and the injury found on the body of the deceased was caused by a sharp pointed weapon which may be a bhala. 5. Dr. J.P. Saxena (PW 7), in his evidence, has stated that on 26.7.77 at 2 P.M. he conducted the post mortem examination on the dead body of the deceased Ram Chandra Kunwar and found the following ante mortem injuries externally: (i) Stitched wound 12" linear on left side of abdomen (from the area below the left nipple to the umbelicus). The wound was curved to the right at the upper end and it had 17 stitches. The margins were clean cut. The wound was curved to the right at the upper end and it had 17 stitches. The margins were clean cut. An area of 3" appeared different from the rest of the wound in the region of epigastrium. (ii) Internally a bruise on the left lower ribs and blood clot in the area were found. Abdominal cavity had 2 Ozs of blood. (iii) 6 stiches in omentum. (iv) 3 stiches in the stomach. (v) Stomach had two Ozs of blood. (vi) Two stitches in the pericardium. (vii) Liver was ruptured and had five stitches in left lob. According to him, the first injury was external and rest were internal and all the injuries were antemortem in nature and were caused by sharp cutting (pointed) weapon which may be a bhala and the death had been caused due to shock and haemorrahge as a result of injuries and haemorrahge of operation. Time elapsed since death was within 24 hours and injuries were sufficient to cause death in ordinary course of nature. He has proved the post mortem examination report (Ext.2). So from the evidence of PW 12 and PW 7 it is established that deceased Ram Chandra Kunwar died of an injury caused on his abdomen by a sharp and pointed weapon which may be bhala and his death was homicidal. Now it has to be seen what evidence has been led by the prosecution making the appellants responsible for this injury, 6. Shailendra Kumar (PW 8). the informant, in his evidence, has stated that on 22.7.77 at about 9-10 PM he was reading by sitting on a 'chowkl' on his 'darwaja' and a lantern was lighting there and at that time his father returned from Muzaffarpur and after taking out his shirt his father kept the shirt on the 'chowkl', In the meantime all the appellants came to his 'darwaja', Appellant Raj Kishore Chaudhary was armed with bhala, appellant Rajbali Chaudhary was armed with gun, appellant Uma Shankar Chaudhary was armed with pharsa, appellant Ramashray Tiwary was armed with 'patha' and remaining appellants were armed with lathis. Appellant Raj Kishore Chaudhary ordered his companions to kill his father and at the same time he gave bhala blow on the left side of the abdomen of his father. Appellant Raj Kishore Chaudhary ordered his companions to kill his father and at the same time he gave bhala blow on the left side of the abdomen of his father. When he tried to rescue his father appellant Raj Kishore Chaudhary gave a bhala blow to him also hitting below his waist on left side. When the villagers started assembling there the appellants fled away. His father became unconscious because of injuries he and his father were brought to Sahebganj hospital by his uncle Nirshu Kunwar and Chaukidar Ram Khelawan Rai on a bullock cart where his fardbeyan (ExtA) was recorded by the police. From Sahebganj Hospital his father was referred to Sadar Hospital, Muzaffarpur for treatment where his father regained hisconsciousness and his dying declaration was recorded by a Magistrate. Thereafter his father died on 25.7.77 in the Sadar Hospital. About the witness Rajendra Kunwar he has said that he has gone to Assam. About the witnesses Mungal Kunwar, Munar Ram, Nathuni Ram, Nandeshwar Kunwar, Baldeo Kunwar, Bhagwat Kunwar and Nageshwar Kunwar he has said that they have gone to the side of appellants. He has been cross examined at length but the defence has not been able to elicit anything from him to disbelieve his evidence. 7. Nirshu Kunwar (PW 1) has said that at the time of occurrence he was at his 'darwaja' when he heard 'hul/a' from the house of deceased and when he went there followed by another witness Rajendra Kunwar he sawall the appellants at the 'darwaja' of the deceased and appellant Raj Kishore Chaudhary' ordered his companions to kill the deceased and thereafter appellant Raj Kishore Chaudhary gave a bhala blow on the abdomen of deceased and when informant tried to save his father he was also assaulted by appellant Raj Kishore Chaudhary with bhala and thereafter all the appellants fled away. 8. Arbind Kumar (PW 2), the son of deceased, and Sumitra Devi (PW 3), wife of deceased, have also supported the case of prosecution and have said that all the appellants at the time of occurrence came to their house and appellant Raj Kishore Chaudhary gave a bhala blow on the abdomen of deceased and also assaulted the informant with bhala. They have further said that three days after the occurrence deceased died in the hospital. They have further said that three days after the occurrence deceased died in the hospital. Manoj Kumari (PW 5) is the daughter of deceased and she has also fully supported the case of prosecution. These witnesses have admitted that there was land dispute between the deceased and the appellants at the time of occurrence. 9. Uma Kant Sharma (PW 11) is the I.O. of this case and he has said that on 23.7.77 at about 8 AM he recorded the fardbeyan of informant at Sahebganj Hospital and at that time he found that deceased was unconscious and was not in a position to give his statement and he also found bleeding injury on the left side of the 'abdomen of deceased. He further found injuries on the person of informant and he referred the two injured to doctor and the doctor informed him that the condition of deceased Ram Chandra Kunwar was critical and advised for sending the deceased to Sadar Hospital, Muzaffarpur and thereafter deceased was sent to Sadar Hospital, Muzaffarpur and he took steps for deputation of a Magistrate for recording the dying declaration of the deceased. He has further said that he visited the place of occurrence which, according to him, is the 'palanit’ of the house of deceased being used as a house and a sitting place and he found a 'chowkl' kept in the 'palanl' and also blood stains at different places in the 'palanl. He has further stated that there was a lantern with oil and a wick and he also found some blood stains in the net of the cot and he seized the lantern, blood stained earth and portion of blood stained net and prepared seizure list (Ext.7). He has proved the lantern (Material Ext.1) and blood stained net (Material Ext.2). He has further stated that when he again went to Sadar Hospital on 27.7.77 he came to know that the deceased Ram Chandra Kunwar died on 25.7.77 and his dying declaration was recorded on 23.7.77. He has said that the informant produced before him blood stained "kurta", napkin, flying shirt, bed sheet etc. which he seized and prepared seizure list (Ext.7/1). He has said that the informant produced before him blood stained "kurta", napkin, flying shirt, bed sheet etc. which he seized and prepared seizure list (Ext.7/1). In cross examination he has stated that he also inspected the land situate adjacent to west to the place of occurrence but he did not find anything there and when he visited the place of occurrence, by that time no case in respect of land situated south to the place of occurrence had been registered. In paragraph-12 of his cross examination he has stated that adjacent south to the house of informant there is a 'gairmazrua' land and witness Manoj Kumari (PW 5) had told him that there was a dispute between the parties in respect of that land. 10. Jawahar Prasad Ratnesh (PW 9), in his evidence, has said that on 23.7.77 he was posted as a Judicial Magistrate, 2nd Class, Muzaffarpur, and on that day he recorded the dying declaration of deceased Ram Chandra Kunwar at Sadar Hospital, Muzaffarpur. He has proved this dying declaration which is marked as Ext.5. 11. Two witnesses have been examined on behalf of the defence. Sukeshwar Prasad (OW 1) has proved the report (Ext. 0) on the petition of defence with a prayer for calling the complaint petition and injury report of a case bearing GR No. 526/77 disposed of on 9.2.78 by Shri A.K. Chand, Judicial Magistrate, Muzaffarpur that the aforesaid records had been destroyed on 16.6.81. The case of defence is that at the time of occurrence it was the prosecution party which after entering into the land of appellants assaulted the appellants and when the villagers assembled there they rescued the appellants and in that process the deceased received some injuries. 12. It is true that the I.O. Uma Shankar Sharma (PW 11), in his evidence, has stated that he had received from court a c0mplaint petition filed by appellant Uma Shankar Chaudhary and on the basis of that complaint he drew a formal FIR (Ext.A) and took up the investigation of that case also and that case was in respect of 'gairmazrua' land which is adjacent south to the house of deceased and he inspected this gairmazrua land and found upper portion of a granary overturned and also found some straw burnt and some grains and husk scattered and after completing investigation he submitted chargesheet under sections 323, 324, 379/426 IPC. Nirshu Kunwar (PW 1) in his cross examination has said that 4 days after the occurrence the appellants had filed a case in which he was also one of the accused but that case was withdrawn by the State. It is true that OW 1 has proved that the record of the case filed by the appellants against the informant and his party has been destroyed but then in absence of any evidence on the point of informant and his party going to the land of appellants, assaulting the appellants and the deceased sustaining injuries by the villagers, the case of defence can not stand proved merely on the ground that it had filed a counter case in the court. The I.O. has categorically said that when he visited the place of occurrence by that time no case in respect of 'gairmazrua land' situated adjacent south to the house of informant had been registered. His evidence clearly shows that counter case was filed much after the filing of the present case. If the case of defence is that some of the appellants received injuries at the hands of prosecution party it could have very well examined the doctor or other witnesses in support of its case notwithstanding the destruction of the original records of the case including the injury certificate but the defence has not chosen to do so. In such circumstances, no reliance can be placed on the case of defence that at the time of alleged offence it was the prosecution party which had gone to the land of appellants and had assaulted them. 13. Motilal Rai (DW 2) in his evidence has simply stated that on 21.7.77 the sister of appellant Raj Kishore Chaudhary was ill at Dewaria and from there nephew of Raj Kishore Chaudhary had come for taking Raj Kishore Chaudhary with him and that appellant Raj Kishore Chaudhary went with him to Dewaria where he remained from 21.7.77 to 23.7.77. The court below was rightly held that this witness is not trustworthy after observing that -neither any medical certificate nor evidence of nephew of appellant Raj Kishore Chaudhary has been brought on record in support of this alibi of appellant Raj Kishore Chaudhary. 14. It has been argued on behalf of the appellants that in the dying declaration (Ext. The court below was rightly held that this witness is not trustworthy after observing that -neither any medical certificate nor evidence of nephew of appellant Raj Kishore Chaudhary has been brought on record in support of this alibi of appellant Raj Kishore Chaudhary. 14. It has been argued on behalf of the appellants that in the dying declaration (Ext. 5) the names of appellants Kedar Chaudhary and Bire Lal Chaudhary are not mentioned and in the dying declaration the deceased stated that besides appellant Raj Kishore Chaudhary he was assaulted by appellant Bishklanath Chaudhary also and he had further stated his son was assaulted by appellant Uma Shankar Chaudhary which is against the case of prosecution. So far the question of assault on the son of the deceased is concerned the court below has rightly stated that dying declaration is admissible only to the extent of injury caused to the deceased. Moreover the deceased in the dying declaration had not• stated about the injury caused to informant. He has simply stated that his son was assaulted by appellant Uma Shankar Chaudhary. It is true that in the dying declaration names of appellants Kedar Chaudhary and Birelal Chaudhary are not there and besides the names of remaining 7 appellants there is one more name written as Brijlal Chaudhary. It appears that either by slip of tongue of deceased or by slip of pen in recording the dying declaration by the learned Magistrate the name of Birelal Chaudhary was written as Brijlala Chaudhary. If the dying declaration is considered as it stands even then we find that besides the names of appellant Kedar Chaudhary and Birelal Chaudhary the names of other seven appellants are specifically mentioned and so far the question of assault by appellant Raj Kishore Chaudhary with bhala on deceased is concerned, it is fully supported in the dying declaration. No doubt in dying declaration the deceased stated that he was assaulted by appellant Bishwanath Chaudhary also on his shoulder but it has not been specifically stated that by which weapon the deceased was assaulted by appellant Bishwanath Chaudhary. Apart from the dying declaration there is evidence of PW 1, PW 2, PW 3, PW 5 and the informant (PW 8), who all are eye witnesses to the occurrence and inmates of the house that all the appellants forming an unlawful assembly took part in the commission of offence. Apart from the dying declaration there is evidence of PW 1, PW 2, PW 3, PW 5 and the informant (PW 8), who all are eye witnesses to the occurrence and inmates of the house that all the appellants forming an unlawful assembly took part in the commission of offence. The presence of these witnesses is quite natural because they are own relations of deceased living with deceased at the time of occurrence in the same house. It is true that no independent witness in this case has been examined but then the informant in his evidence has satisfactorily explained about their non examination on the ground that they have been gained over by the appellants. 15. About the contradictions in the earlier statements and evidence of witnesses we find that only attention of PW 1 was drawn that in his earlier statement he had stated that at the time of occurrence he was sleeping whereas in his evidence he has stated that at the time of occurrence he was at his house. The I.O. in his evidence has stated that this witness had stated that at the time of occurrence he was sleeping in his house. But then this witness in para-3 of his cross examination has clearly stated that at the time of occurrence he was simply lying and not sleeping but he had stated before the I.O. that at the time of occurrence he was sleeping because in his view "to sleep" and "to lie" both carry same meaning. In this view of the matter we do not find that it is a major contradiction to disbelieve his evidence. 16. The case of prosecution is that when the informant tried to rescue his father he was also assaulted with bhala by appellant Raj Kishore Chaudhary. It is also the case of prosecution that informant was taken to hospital and the I.O. in his evidence has stated that he found injury on the person of informant and had prepared an injury report and referred him to doctor. No doctor has been examined to show that he found any injury on the person of informant. No report for this injury has been brought on record. But then the evidence of eye witnesses is consistent on this point that informant was assaulted by appellant Raj Kishore Chaudhary by bhala. No doctor has been examined to show that he found any injury on the person of informant. No report for this injury has been brought on record. But then the evidence of eye witnesses is consistent on this point that informant was assaulted by appellant Raj Kishore Chaudhary by bhala. So we find (hat non examination of doctor is not a ground to disbelieve this part of prosecution about the injury to informant inflicted by bhala by appellant Raj Kishore Chaudhary. 17. Considering the entire 'evidence on record we find that the prosecution has proved that at the time of occurrence all the appellants armed with deadly weapons such so bhala, gun, lathi formed unlawful assembly and went to the house of informant where appellant Raj Kishore Chaudhary gave a bhala blow on the abdomen of father of informant which resulted into his death. This clearly suggests that the death of deceased was caused in prosecution of the common object of unlawful assembly by the appellants. We therefore hold that prosecution has proved its case beyond all reasonable doubts and appellants have been rightly held guilty and convicted and sentenced by the court below. Under these circumstances, the judgment and order of the court below requires no interference. 18. In the result, these appeals are dismissed. The Judgment and order of the court below is hereby confirmed. The bail bonds of appellants, who are on bail, are cancelled and they are directed to surrender before the court below to serve out the sentences passed against them.