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2001 DIGILAW 276 (PAT)

Baijnath Rai v. State Of Bihar

2001-03-26

A.K.SINHA, R.N.PRASAD

body2001
Judgment R.N.Prasad, J. 1. All the three appeals arise out of judgment and order dated 10-6-1994/l-7-1994 passed by, the 2nd Addl. Sessions Judge, Bettiah in S.T. No. 427/93 whereby all the appellants have been convicted for the offence under Sec. 302/149 of the Indian Penal Code and have been sentenced to undergo imprisonment for life. Baijnath Rai and Sheopujan Mallah, appellants in Cr. Appeal No. 354/94 and appellants in Cr. Appeal No. 422/94 have further been convicted for the offence under Sec. 302 of the Indian Penal Code and have been sentenced to undergo imprisonment for life. They have further been convicted for the offence under Sec. 148 of the Indian Penal Code and under Sec. 27 of the Arms Act and sentenced to undergo rigorous imprisonment for two years and six years respectively. They have also been directed to pay a fine of Rs. 4000.00 each and in default to undergo rigorous imprisonment for one year. Ajay Rai and Chhathu Rat, appellants in Cr. Appeal No. 354/94 and appellants in Cr. Appeal No. 375/94 have been directed to pay fine of Rs. 1500.00 each and in default of payment of fine to undergo rigorous imprisonment for sixmonths. 2. One Gauri Shankar Rai, the informant gave his Jardbeyan on 4-10-1992 at 6 a.m. that on 3-10-1992 at about 6.30 to 7 p.m. he was at the door of his house, His brother Sita Ram Rai was cutting foddar, All of a sudden 8-10 culprits variously armed came from the house of Baijnath Rai. He and his brother tried to run away in their house but Baijnath Rai asked his brother Sita Ram Rai to stop, otherwise he would be shot dead. He saying so fired twice. He and his brother entered in their house. Culprits also followed them. He, his brother Sita ram Rai, wife of Sita Ram Rai and the children tried to run away from the back door of the house but the culprits caught them, He and wife of Sita Ram Rai were requesting Dudhnath Yadav to leave them. However, Baijnath Rai fired from his gun from close range which hit near the ear of his brother Sita Ram Rai due to which he fell down on the ground. Arbind Rai fired on the chest, Gaya Rai and Sheopujan Mallah also fired on the deceased. However, Baijnath Rai fired from his gun from close range which hit near the ear of his brother Sita Ram Rai due to which he fell down on the ground. Arbind Rai fired on the chest, Gaya Rai and Sheopujan Mallah also fired on the deceased. Ajay Rai, Santosh Rai, Jitendra Rai, Deo Narain Mallah and Chhathu Rai assaulted the deceased with lathi. Thereafter, Dudhnath Yadav also fired one shot on the deceased. Gaya Rai said that he died. However, hearing sound of firing villagers were coming but Baijnath Rai and Gaya Rai threatened to kill them and as such no people from the village came. After occurrence the accused persons stayed for some time in the house of Santosh Rai and thereafter they proceeded towards south. He identified them in the moonlit night. The motive of the occurrence was that accused Baijnath Rai and Santosh Rai used to give shelter to the renouned criminal namely, Dudhnath Yadav which his brother Sita Ram Rai, the deceased used to protest and Baijnath Rai had also threatened him, 3. On the aforesaid Jardbeyan, Ext. 4, formal first information report, Ext. 5, was drawn. Investigation was taken up and after completion of investigation charge-sheet was submitted. The Court took cognizance and committed the case to the Court of Sessions for trial. The trial Court convicted the appellants as indicated above. 4. The defence of the appellants was that no occurrence took place in the manner as alleged by the prosecution. Dudhnath Rai and his gang committed the occurrence and they have falsely been implicated in the case. 5. The prosecution in support of its case examined 10 witnesses out of whom. PWs 1. 2. 3 and 4 have been declared hostile. PWs 5 and 6 claim to be eye-witnesses to the occurrence. PW 7 is the informant and he also claimed to be eye-witness to the occurrence. PW 8 is police officer who submitted chargesheet. PW 9 is Doctor who held postmortem over the dead-body. PW 10 is the Investigating Officer. The defence has also examined 3 witnesses i.e. DWs 1. 2 and 3 to say that murder was committed by Dudhnath Yadav and his gang and the appellants have been implicated out of enmity. 6. Death is not in dispute in this case. Dispute is with regard to participation of the appellants in committing crime. The defence has also examined 3 witnesses i.e. DWs 1. 2 and 3 to say that murder was committed by Dudhnath Yadav and his gang and the appellants have been implicated out of enmity. 6. Death is not in dispute in this case. Dispute is with regard to participation of the appellants in committing crime. The occurrence is said to have been committed on 3-10-1992 between 6.30 p.m. to 7 p.m. There are three eyewitnesses to the occurrence. PW 5 is brother-in-law of the deceased. PW 6 is wife of the deceased and PW 1 is the informant who is younger brother of the deceased. They have claimed to be eyewitnesses to the occurrence and deposed in the same manner. However, learned counsel for the appellants contended that no occurrence took place in the manner as alleged by the prosecution. Fardbeyan was recorded in the morning of 4-10-1992 i.e. much after the occurrence though the police visited the place of occurrence in the night itself. PW 7 is the informant. He in his evidence stated that the police and the chaukidar came together. The Assistant Sub-Inspector of Police reached the place of occurrence two hours after the occurrence. He enquired about the occurrence from him and his bhabhi wife of the deceased but no fardbeyan was recorded at that very time. Fardbeyan was recorded in the morning. In the night he was making enquiry about the culprits. In the morning when his fardbeyan was being recorded Vishwanath Rai. PW 2. Ali Mohammed. PW 3. and Idris Mian. PW 4, were present. However, he did not disclose about the occurrence to any of the villagers. PW 6 stated in her evidence that chaukidar came at the place of occurrence one hour after the occurrence. The chaukidar the Sub-Inspector of Police and the force came together but no statement was recorded in the night. Similar is the evidence of PW 5. He stated in his evidence that in the night itself the police came and saw the dead-body. Therefore, it is evident from the evidence of eye-witnesses that the police came in the night itself but there is nothing on the record to show that fardbeyan was recorded in the night when PWs have claimed to be present in the night at the place of occurrence. Fardbeyan was recorded in the morning of 4-10-1992. Therefore, it is evident from the evidence of eye-witnesses that the police came in the night itself but there is nothing on the record to show that fardbeyan was recorded in the night when PWs have claimed to be present in the night at the place of occurrence. Fardbeyan was recorded in the morning of 4-10-1992. The aforesaid facts give an impression that the fardbeyan was recorded after due deliberation and concoction. 7. The aforesaid fact is also supported by the evidence of PW 10, PW 10, the Investigating Officer. has stated in his evidence that he recorded the fardbeyan on 4-10-1992 at 6 a.m. First Information Report was drawn at about, 12.30 p.m. in the format of the First Information Report. It has been stated that fardbeyan was sent through special messenger but no date has been mentioned. However, fardbeyan reached in the Court on 7-10-1992 i.e. after three days of recording of the fardbeyan. There is no explanation on the record as to why First Information Report was received in the Court after three days of recording of the fardbeyan. Sec. 157 of the Code of Criminal Procedure requires the First Information Report to be sent forthwith to the Magistrate competent to take cognizance of the offence. Sending First Information Report to the Magistrate forthwith has great importance as it excludes the improvement and embellishment in the First Information Report. It is definite case of the defence that no occurrence took place in the manner as alleged. In such a situation it creates suspicion about recording of the fardbeyan at the time as alleged by the prosecution. Moreover, PW 7 has stated in his evidence that in the night police were making enquiry from the villagers with regard to direction in which assailants had run away which indicates that in the night till recording of fardbeyan neither the informant nor any one was knowing about the names of the assailants. Moreover, PW 7 has stated in his evidence that in the night police were making enquiry from the villagers with regard to direction in which assailants had run away which indicates that in the night till recording of fardbeyan neither the informant nor any one was knowing about the names of the assailants. In the case of Ishwar Singh V/s. State of Uttar Pradesh, the Apex Court considered the delay of two days in receipt of First Information Report in the Court and held that it is legitimate basis for suspecting that First Information Report was recorded much later than stated date and hour affording time to prosecution to introduce improvement and embellishment and set up distorted version of the occurrence and in such a situation the evidence of eye-witnesses cannot be accepted. 8. It is not end of the matter, PW 10 the Investigating Officer has deposed that he recorded the fardbeyan prepared inquest report, Ext. 6, prepared challan for sending dead-body for post-mortem, Ext. 7 and sent the dead-body to Bagha Hospital for post-mortem on 4-10-1992, but the post-mortem, Ext. 7 indicates that dead-body was received in the hospital on 5-10-1992 at about 1.45 p.m. There is nothing on the record to show the reason for such delay in receipt of the dead-body in the hospital. It was natural that if the dead-body was sent to the hospital on 4-10-1992 it would have reached hospital on the same day i.e. on 4-10-1992. Peculiar circumstance is also that the Doctor who held post-mortem over the dead-body has recorded that rigor mortis was present in all the four limbs. In this regard it is pertinent to mention herein that the occurrence took place on 3-10-1992 at about 6.30 to 7 p.m. It was a hot day. Postmortem was held on 5-10-1992 at about 1.45 p.m. i.e. after about 43 hours of the occurrence. In such a situation the presence of rigor mortis in all the four limbs creates doubt about the time of occurrence itself because of the fact that rigor mortis starts proceeding in hot day after 18 hours and vanishes after about 36 hours. This aspect of the matter clearly indicates that real fact has not been brought on the record. 9. The aforesaid fact is not end of the matter. PW 10 has stated in his evidence that he prepared inquest report, Ext. 6. This aspect of the matter clearly indicates that real fact has not been brought on the record. 9. The aforesaid fact is not end of the matter. PW 10 has stated in his evidence that he prepared inquest report, Ext. 6. In the inquest report it has been stated that dead-body was found in the field of Kohra (vegetables plant) field of the informant. When PW 10 was confronted with the inquest report he stated that there was Kohra plant in the courtyard although none of the eyewitnesses stated that there was Kohra plant in the courtyard of the informant rather PW 7 the informant has stated in his evidence that there is road in the north side of the house which goes from east to west. Adjacent to the road there is a kitchen garden in which Kohra was sown. In view of the specific evidence of PW 7 the place of occurrence also becomes doubtful as the Investigating Officer has mentioned that the dead-body was found in Kohra field of the informant. It is not the case of the prosecution that occurrence took place in Kohra field. 10. In the First Information Report it has categorically been stated that initially Baijnath Rai fired causing injury near the ear of Sita Ram, the deceased, who fell down and thereafter appellant Arbind Rai fired on the chest. Appellant Gaya Rai, Sheopujan Mallah also fired on the deceased. Dudhnath Yadav also fired from the rifle on the deceased and thereafter Ajay Rai, Santosh Rai, Deo Narain Mallah and Chhatu Rai assaulted with lathi. However, PW 6 has/stated that Dudhnath Yadav did not fire at him. However, all the eye-witnesses stated that deceased was assaulted with lathi also but the doctor did not find any injury caused by hard blunt substance. The aforesaid fact also indicates that witnesses did not see the occurrence. 11. PW 5 is brother-in-law of the deceased. He claimed to be eye-witness to the occurrence. However, his attention was drawn to the statement made before the police. PW 10, the Investigation Officer has stated in his evidence that PW 5 stated before him that he heard that his sister was requesting Dudhnath Yadav not to assault. In the meantime, he heard sound of 5-6 firings. When he reached after half an hour he found the deceased lying dead on the ground having injuries caused by fire arm. PW 10, the Investigation Officer has stated in his evidence that PW 5 stated before him that he heard that his sister was requesting Dudhnath Yadav not to assault. In the meantime, he heard sound of 5-6 firings. When he reached after half an hour he found the deceased lying dead on the ground having injuries caused by fire arm. The witness also stated that his sister Saroj Devi and informant Gauri Shankar Rai disclosed that appellants Baijnath Rai, Gaya Rai, Arbind Rai and one Dudhnath Yadav killed the deceased inflicting fire arm injuries. The aforesaid piece of evidence makes it clear that PW 5 was not eyewitness to the occurrence. PW 7 the informant has stated in his evidence that he and PW 6 the wife of deceased were assaulted with butt of the gun by the appellants. However, there was no whisper in the fardbeyan about the assault by the appellants to the informant and PW 6 nor any other witness has come forward to say that any other person was assaulted by the appellants. Moreover, there is nothing on the record to show that they were examined by the doctor. This fact also indicates that witnesses were trying to improve the prosecution case. 12. Thus on consideration as discussed above, we are of the view that in such a situation the prosecution has failed to establish its case beyond all reasonable doubts and as such it is not safe to upheld the conviction of the appellants. Accordingly, all the three appeals are allowed. The order of conviction and sentence are hereby set aside. The appellants of Cr. appeal No. 422/94 i.e. Arbind Rai and Gaya Rai are in jail. They are directed to be released forthwith if not required in any other case. Rest of the appellants are discharged from the liability of the bail bonds.