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2001 DIGILAW 389 (PAT)

Dharamu Rai v. State Of Bihar

2001-04-26

ASHOK KUMAR VERMA, INDU PRABHA SINGH

body2001
Judgment Indu Prabha Singh and Ashok Kumar Verma JJ. 1. Both the appeals arise from the same judgment and have been heard together and are being disposed of by this common judgment. 2. The appellant Vishwanath Rai has been convicted under Section 302 of the Indian Penal Code and sentenced, to undergo rigorous imprisonment for life. All the other appellants have been convicted under Sections 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five. Further, appellant No. 1, Dharamu Rai, was convicted under Section 324 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for one year. Appellant No. 2. Ram Dayal Rai, was convicted under Section 323 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months. Appellants 3 and 4, Baleshwar Rai and Babban Rai, were convicted under Section 341 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for six months. Appellants No. 1 and 3, Dharamu Rai and Baleshwar Rai, were also convicted under section 148 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for one year. Appellants 2, 4 and 5, Ram Dayal Rai, Babban Rai and Dharam Nath Rai, were also convicted under Section 147 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for one year. However, all the sentences were ordered to run concurrently. 3. The prosecution case, as recorded, in short, is that on 16.3.1987 at about 8.45 a.m. the appellants variously armed came and committed murder of one Paras Nath Sah and inflicted injuries on some other persons in the village Peer Maker within Maker Police Station, Saran. The case was instituted at the Parsa Police station on the basis of a fardbeyan of informant. Ram Nath Sah, PW 7, was recorded by Police Officer of Maker Police Station. It has been stated that on 16.3.1987 at about 8.45, a.m., the informant of the case, Ram Nath Sah, was present in his field near his house where he was weeding out grass from onion field. At that time, an altercation took place between the nephew of informant Ram Nath Sah and accused Gopal Sah and Dharmu Rai near the house of informant, Ram Nath Sah, relating to some personal matter. At that time, an altercation took place between the nephew of informant Ram Nath Sah and accused Gopal Sah and Dharmu Rai near the house of informant, Ram Nath Sah, relating to some personal matter. The informant, Ram Nath Sah, came there and he intervened in the aforesaid quarrel and asked them not to fight. At that time the appellant, Dharmu Rai, shouted and raised voice saying that there would be blood shed and murder today. Thereafter, the accused Dharmu Rai went to his house and just thereafter again came at the house of the informant. Ram Nath Sah, along with other appellants, namely, Vishwanath Rai, Dam Dayal Rai, Baleshwar Rai, Babban Rai, Lallan Rai and Dharamnath Rai. They were all of the same village, Peer Maker. It has been alleged that all the appellants, including Dharmu Rai came at the house of the informant, Ram Nath Sah. They were armed with lathi, bhala, farsa and chhura. These accused- persons started abusing Ram Nath Sah and other members of his family. It has been alleged that appellant Baleshwar Rai, Babban Rai caught hold of Paras Nath Sah (the deceased) and the appellant Vishwanath Rai gave a chhura blow in the chest of Paras Nath Sah. The deceased fell down. The informant, Ram Nath Sah and his son Bindu Sah and daughter Hulsi Kumari rushed to the place of occurrence to save Paras Nath Sah. It has been alleged that at that time appellant Dharmu Rai dashed down Ram Nath Sah and started cutting his neck with chhura. The appellant Lallan Rai (whose trial has been separated) assaulted Bindu Sah and Hulasi Kumari with lathi and chhura. The other appellants also assaulted them with lathi and farsa. It has been staled that the witnesses, namely, Harihar Sah Birendra Sah, Dineshwar Sah, Gopal Sah and others of the same village, Peer Maker, saw the occurrence. It has been stated by the informant that he had no enmity with the appellants as he used to borrow money from them and on account of which there was a dispute between Ram Nath Sah the appellants. It has been also stated that about two years ago of the occurrence Ram Nath Sah had taken a loan of Rs. It has been stated by the informant that he had no enmity with the appellants as he used to borrow money from them and on account of which there was a dispute between Ram Nath Sah the appellants. It has been also stated that about two years ago of the occurrence Ram Nath Sah had taken a loan of Rs. 70/- from the appellant Dharmu Rai and Ram Nath Sah re-paid the same to the appellant, Dharmu Rai, including principal amount and the interest, but even then the appellant Dharmu Rai was demanding Rs. 700/- as due against the informant, Ram Nath Sah. It has been alleged that on account of loan there was dispute between the informant Ram Nath Sah and the appellant Dharmu Rai and other appellants. On the basis of the fardbeyan of the informant the case was instituted at the Maker Police Station on 16.3.1987, which was marked as Exhibit 4. The First Information Report was received at the Parsa Police Station at about 2.30 p.m.. PW 11, Dashrath Singh, Officer-in-charge of Maker Police Station took up the investigation of the case and PW 12, Munna Prasad, submitted charge-sheet against the accused-appellants. The Police Officer came at the Police Station from the alleged place of occurrence and inspected the dead-body of the deceased and prepared inquest report, which had been marked as Exhibit 8. The injured persons were sent to the doctor of the Parsa State Dispensary for their examination and treatment. PW 9, Dr. Awadhesh Prasad Singh, of the Parsa State Dispensary, examined the injuries of the informant, PW 7, Ram Nath Sao, PW 1, Bindu Prasad Sao, and PW 5, Hulasi Kumari PW 5, Dr C.N. Gupta of Sadar Hospital, Chapra, had conducted the post-mortem examination on the dead-body of Paras Nath Sao and he prepared post-mortem report in this regard, which was marked as Exhibit 2. After completion of the investigation, charge-sheet was submitted and, accordingly, cognizance was taken and the case was committed to the Court of Sessions where the appellants were convicted, hence, this appeal. 4. The appellants have pleaded that they are not guilty and they stated that they have been falsely implicated in this case due to enmity. 5. The prosecution in support of its case examined altogether 12 witnesses. 4. The appellants have pleaded that they are not guilty and they stated that they have been falsely implicated in this case due to enmity. 5. The prosecution in support of its case examined altogether 12 witnesses. PW 1 is Bindu Prasad Sao, PW 2 is Jagat Sao, PW 3 is Birendra Kumar Sah, PW 4 is Dineshwar Sao, PW 5 is Hulasi Kumari, the daughter of the informant, PW 7, PW 6 is Gopal Sah, PW 7 is Ram Nath Sao, the informant himself. PW 8 is Dr. C.N. Gupta, who has held post-mortem examination of Paras Nath Sao, PW 9 is Dr. Awadhesh Prasad Singh, who has examined the injured PWs 1, 5 and 7, PW 10 is Ram Jatan Mishra, PW 11 is the First Investigating Officer, Dashrath Singh. He has investigated the case. PW 12 is another Investigating Officer. 6. The defence had also examined three witnesses, DW 1. Subhash Singh. DW 2, Syed Quammar Abbas and DW 3, Mojibur Rahman. They are all formal witnesses and they have proved some documents. There is a Court witness also, Chhulhan Das. 7. PW 1 Binda Prasad Sao, is the son of the informant, Ram Nath Sao, has stated that on 16.3.1987 at about 8.30 a.m. he was present at his house. On hearing hulla of maro maro he came out of his house and saw the accused Vishwanath Rai, Dharmu Rai, Dharam Nath Rai, Ram Dayal Rai, Lallan Rai, Babban Rai and Baleshwar Rai came at his house. He has stated that the appellant Babban Rai and Baleshwar Rai caught hold of the deceased, Paras Nath Sah in the Sahan and appellant Vishwanath Rai gave a chhura blow on the chest of Paras Nath Sah. He fell down. Thereafter, the appellant Baleshwar Rai gave a farsa blow on the hand of Paras Nath Sah. He has further stated that his father, informant, Ram Nath Sao, and his sister, Hulasi Kumari, came forward to save Paras Nath Sah but the appellant Dharmu Rai gave a chhura blow on the neck of his father. Other appellants have assaulted him with lathi. He has stated that the appellant Dharam Nath Rai, Lallan Rai and Ram Dayal Rai assaulted his sister Hulasi Kumari with lathi. He has stated that Paras Nath Sah died having sustaining injury at the place of occurrence. Other appellants have assaulted him with lathi. He has stated that the appellant Dharam Nath Rai, Lallan Rai and Ram Dayal Rai assaulted his sister Hulasi Kumari with lathi. He has stated that Paras Nath Sah died having sustaining injury at the place of occurrence. He has stated that he along with his father and sister came at the Maker Police Station along with the dead- body of Paras Nath Sah. The Police Officer sent him. his father and his sister for their medical examination at the State Dispensary at Parsa. He has stated that he came back at his house from hospital and went to Chapra to take the dead-body of Paras Nath Sah from the Hospital for its cremation. In his cross-examination he had admitted that the widow of Paras Nath Sah had received Rs. 20,000/- from the State Government on account of the death of her husband. 8. PW 7, the informant, Ram Nath Sao, has fully supported the case as narrated in the First Information Report. He has stated that on 16.3.1987 at about 8.30 a.m. He was present in his field near his house where he was weeding out grass from his onion field. At that time the appellant Dharmu Rai was going to his house towards east on a cycle and he (Dharmu Rai) dashed his daughter, Hulasi Kumari, PW 5, with his bicycle. He has stated that Gopal Sah asked Dharmu Rai as to why he had dashed Hulasi Kumari by his bicycle. He has stated that he also asked the appellant Dharmu Rai as to why he did so. The appellant uttered that you have taken loan from me and even then you have become emboldened. He further stated that appellant Dharmu Rai told that today there will be blood shed and he went to his house from there and the informant came back to his field after 8 to 10 minutes, the appellant Dharmu Rai, Vishwanath Rai having chhura in their hand, Babban Rai, Lallan Rai, Baleshwar Rai, Dharam Nath Rai and Ram Narain Rai came at his house. He has stated that the appellant Baleshwar Rai was having farsa in his hand and other four appellants were having lathi in their hand and they started abusing Paras Nath Sao who was standing in his Sahan of his house. He has stated that the appellant Baleshwar Rai was having farsa in his hand and other four appellants were having lathi in their hand and they started abusing Paras Nath Sao who was standing in his Sahan of his house. He has stated that the appellant Baleshwar Rai and Babban Rai caught hold of Paras Nath Sah and appellant Vishwanath Rai gave a chhura blow on the chest of the deceased Paras Nath Sao. He fell down. Thereafter, the appellant, Baleshwar Rai, gave a farsa blow on the right hand of his son, Paras Nath Sah. He has stated that he, his son, Bindu Prasad Sao and his daughter, Hulasi Kumari came there to save his son, Paras Nath Sah, but the appellant Dharam Nath Rai and Ram Dayal assaulted him with danda and they also dashed him down. Thereafter, appellant, Dharam Rai, gave chhura blow on his neck. He had also stated that the appellants, Lallan Rai, Dharam Nath Rai and Ram Dayal Rai, assaulted his son. Bindu Prasad Sao, and his daughter, Hulasi Kumari. His son, Paras Nath Sah, had died there and the appellants ran away from the place of occurrence. He had also stated that his daughter, Hulasi Kumari, and his son, Bindu Prasad Sao, came at the police station along with the dead-body of Paras Nath Sao. The police officer of the Maker Police Station recorded his statement, which is exhibit 1. He had stated that he had taken Rs. 70/- as loan from the appellant Dharmu Rai and he had already paid Rs. 1100/- to him on account: of the loan but the appellant Dharmu Rai was further insisting to give Rs. 700/- as due against him on account of the loan from him. He has also stated that the Police Officer sent him to the State Dispensary, Parsa, for his treatment. He was admitted in the Hospital and remained there since 16.3.1987 to 25.3.1987. He has admitted that he had received Rs. 5000/- from the State Government for the injury sustained by him and the widow of Paras Nath Sah had received Rs. 20,000/- from the State Government for the death of her husband. 9. PW 5, Hulasi Kumari. daughter of the informant, has also fully supported the case of the prosecution as narrated by the informant in the First Information Report. 5000/- from the State Government for the injury sustained by him and the widow of Paras Nath Sah had received Rs. 20,000/- from the State Government for the death of her husband. 9. PW 5, Hulasi Kumari. daughter of the informant, has also fully supported the case of the prosecution as narrated by the informant in the First Information Report. She has stated that on the date of occurrence at about 8.45 a.m. she was going to her house from the house of Gopal Sah. At that time the appellant Dharmu Rai was going to his house by a bicycle. She has stated that the appellant knocked her by the cycle. Thereupon, Gopal Sah asked him why he had dashed her with bicycle. Thereafter, there was an altercation between the appellant Dharmu Rai and Gopal Sah, his father also came there from the field and he also asked Dharmu as to why he has dashed his daughter. She has also stated that the appellant Dharmu Rai told her father that her father has taken loan from him and even then he was so bold to challenge him. She has also stated that the appellants uttered that there will be blood shed holi today. She has also stated that the appellants, Babban Rai and Baleshwar Rai, caught hold of her brother, Paras Nath Sah, and the appellant, Vishwanath Rai, gave a chhura blow on the chest of Paras Nath Sah, who fell down and the appellant, Baleshwar Rai, gave farsa blow on the right hand of the deceased Paras Nath Sah. When she and her father and brother came to save Paras Nath Sah, the appellant Vishwanath Rai gave chhura blow to her father. She has also stated that the appellants, Dharam Nath Rai, Lallan Rai and Ramdayal Rai, assaulted her father with lathi and appellant, Dharam Nath Rai, started cutting the neck of her father. The other witnesses PWs 2, 3 and 4 have also supported the case of the prosecution as narrated by PWs 1, 5 and 7. From the deposition of witnesses on factum, it is clear that they have fully supported the case of the prosecution that all the accused- persons variously armed with weapons came to the Sahan of the house of the informant, Ram Nath Sah in the morning on the day of occurrence. From the deposition of witnesses on factum, it is clear that they have fully supported the case of the prosecution that all the accused- persons variously armed with weapons came to the Sahan of the house of the informant, Ram Nath Sah in the morning on the day of occurrence. It has also been supported by the witnesses that the appellant Vishwanath Rai gave a chhura blow on the chest of Paras Nath Sah, resulting in injury and causing his death. It has been further stated by the witnesses that after the deceased fell down, the appellant Baleshwar Rai gave farsa blow on his head. The informant, Ram Nath Sah, Hulasi Kumari and Bindu Prasad Sao, were also assaulted by the appellants. PW 8, the doctor, who conducted the post-mortem, has also found deep piercing wound in the chest corroborating the prosecution version of assault by chhura inflicted on deceased, Paras Nath Sah, besides the main wound on the chest which was cause of his death. Three other incised injuries were also found on the person of the deceased, Paras Nath Sah, which further goes to corroborate the story of prosecution and after being assaulted by chhura, Paras Nath sah fell down then farsa blow was inflicted on him, PW 9, the other medical expert, who was posted as Parsa State Dispensary examined the injured PWs 1, 5 and 7, the informant. He also found injuries on their persons which corroborate the version of the assault as stated by the prosecution witnesses, as such, the medical evidence also is in full corroboration with the prosecution version. The Investigating Officer, PW 11, in his deposition, has also fully supported the case of the prosecution and staled that the dead- body of Paras Nath Sah was brought to the Police Station by PW 1 and he also found the mark of injuries on the person of PWs 1, 5 and 7 and he referred them to Parsa Hospital for their treatment and also sent the dead-body to Chapra Hospital for post-mortem examination. He also got the material findings, such as, blood stains at the place of occurrence, trampling mark at the place of occurrence etc. The Investigating Officer was examined by the defence at length to prove that the eye-witnesses. He also got the material findings, such as, blood stains at the place of occurrence, trampling mark at the place of occurrence etc. The Investigating Officer was examined by the defence at length to prove that the eye-witnesses. PWs 1 to 7 have given different details about the occurrence to the Investigating Officer in their statements during investigation than they had stated before the Court during their depositions. This contradiction had been pointed by the learned counsel as it was also argued in the court below. In such type of occurrence where number of persons armed with deadly weapons suddenly started assaulting the members of the family, each and every other detail cannot be perceived by each member of the family or even neighbours and certain discrepancy and contradiction are bound to occur. However, all the witnesses had broadly supported the prosecution case that it was appellant Vishwanath Rai who inflicted chhura blow on the deceased Paras Nath sah and they also assaulted the informant, Ram Nath Sah, his son, Bindu Prasad Sao, and daughter, Hulasi Kumari. They had also stated that all the appellants arrived in the Sahan variously armed with chhura, farsa and lathi and started unprovoked assault on the informant. The main plea of the defence was that Paras Nath Sah, the deceased had died in some other incident. It has also been pleaded by the defence that the widow of Paras Nath Sah received Rs. 20,000/- as well as the informant, Ram Nath Sah, received Rs. 5,000/-from the State Government in compensation of the incident. But on Chulhan was examined as Court witness who proved the fardbeyan and the First Information Report of that firing which took place at the Maker Police Station and Maker PS case No. 42 of 1987, Exhibits 4/1, 5/1 was registered in which it was described that about 100 to 150 persons have assembled near the police station shouting the slogans. The mob was carrying the dead-body of Paras Nath Sah and demanding to send the dead-body for post-mortem examination and also to release of the appellant, Vishwanath Rai, Ramdayal Rai, who were apprehended by the police. In the course of pacifying the agitated mob some violence took place and police had opened fire in which Chandeshwar Rai got injured and he died at the spot. In the course of pacifying the agitated mob some violence took place and police had opened fire in which Chandeshwar Rai got injured and he died at the spot. The occurrence of Paras Nath Sah had nothing to do with that occurrence and the compensation paid to the widow of Paras Nath Sah as well as Ram Nath Sah had nothing to do with the aforesaid incident as has also been stated by PW 7. It was the good will of local legislator Chandrika Rai and Raghunandan Manjhi, they got the compensation. 10. From the discussions, made above, there remains no doubt that the deceased, Paras Nath Sah, was killed at his Sahan by the appellant Vishwanath Rai, who had come to his Sahan and forming unlawful assembly with other appellants. It is fully established by the prosecution that the appellants, Baleshwar Rai, Babban Rai had caught hold of Paras Nath Sah and the appellant, Vishwanath Rai, inflicted chhura blow as such the offence, under Section 302 of the Indian Penal Code is fully attracted against the appellant, Vishwanath Rai. The prosecution has also established that appellant Dharmu Rai, Ramdayal Rai, Babbart Rai and Dharam Nath Rai variously armed with weapons came and they were having common object to commit the murder and forming unlawful assembly and as such they also actively participated in the crime. They are also equally liable to be punished under Section 302/149 of the Indian Penal Code. It has also been proved that Dharmu Rai gave chhura blow at the neck of Ram Nath Sah, the informant, who fell down after receiving injury by lathi. His incised wound has also been proved by the medical expert, PW 9. Since the injury was simple in nature, it appears that this appellant had no intention of committing the murder of Ram Nath Sah but certainly he, Dharamu Rai caused hurt to Ram Nath Sah. by dangerous weapon which attracts the offence under Section 324 of the Indian Penal Code. The other appellants Ram dayal Rai, who gave lathi blow to the informant, PW 7, and PWs 1 and 5. They have also attracted the offence under Section 323 of the Indian Penal Code. The act of appellant Babban Rai and Baleshwar Rai, who caught hold of the deceased, Paras Nath Sah. The other appellants Ram dayal Rai, who gave lathi blow to the informant, PW 7, and PWs 1 and 5. They have also attracted the offence under Section 323 of the Indian Penal Code. The act of appellant Babban Rai and Baleshwar Rai, who caught hold of the deceased, Paras Nath Sah. when he was being inflicting chhura blow, as such the offence under Section 341 of the Indian Penal Code is also attracted against them. Since, the appellant Vishwanath Rai, Baleshwar Rai, Dharmu Rai were member of unlawful assembly and were armed with deadly weapons that also attracts the offence under Section 148 of the Indian Penal Code as other appellants Ramadayal Rai and Babban Rai were also member of unlawful assembly and having lathi in their hand are liable to be punishable under Section 147 of the Indian Penal Code. We find that they have been rightly convicted for the aforesaid Sections. 11. To sum up, the Court below, accordingly, convicted the appellant Vishwanath Rai under Section 302 of the Indian Penal Code and sentenced him to undergo rigorous imprisonment for life and all the rest appellants, Dharamu Rai, Ram Dayal Rai, Baleshwar Rai Babban Rai, Dharam Nath Rai, were also convicted under Section 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. The appellant Dharmu Rai was also convicted under Section 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year whereas the appellant Ram Dayal Rai was convicted under section 323 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for six months apart from that Babban Rai and Baleshwar Rai were also convicted under Section 341 of the Indian Penal Code and were sentenced for a period of six months. Appellants Vishwanath Rai, Dharmu Rai and Baleshwar Rai have been convicted under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. Appellants Ram Dayal Rai, Babban Rai and Dharam Nath Rai have been further convicted under Section 147 of the Indian Penal Code and were sentenced to undergo rigorous imprisonment for lone year. However, all the sentences were ordered to run concurrently. 12. We do not find any reason to interfere with their respective conviction and also the sentences. Accordingly, the conviction and sentence, passed by the Court below, is upheld. 13. However, all the sentences were ordered to run concurrently. 12. We do not find any reason to interfere with their respective conviction and also the sentences. Accordingly, the conviction and sentence, passed by the Court below, is upheld. 13. The appeal is dismissed. 14. If appears that all the appellants, except Vishwanath rai, are on bail, their bail bonds are cancelled and they are directed to serve out the remaining period of sentence.