Research › Search › Judgment

Patna High Court · body

2001 DIGILAW 604 (PAT)

Ishri Rai v. State Of Bihar

2001-07-19

B.N.P.SINGH

body2001
Judgment B.N.P.Singh, J. 1. Among the appellants, Ishri Rai suffered conviction under Section 436 of the Indian Penal Code for which he was sentenced to suffer rigorous imprisonment for a term of five years. He was also convicted under Section 323 of the Indian Penal Code for which he was sentenced to suffer rigorous imprisonment for a term of six months. He was also convicted under Section 380 of the Indian Penal Code for which he was sentenced to suffer rigorous imprisonment for a term of six months. Appellants Om Prakash Rai and Baishakhi Rai suffered conviction under Section 436/149 of the Indian Penal Code for which they were sentenced to suffer rigorous imprisonment for a term of five years and for conviction under Section 147 of the Indian Penal Code, they were sentenced to suffer rigorous imprisonment for a term of six months. They also suffered conviction under Section 323/149 of the Indian Penal Code for which they were sentenced to suffer rigorous imprisonment for a term of six months. Appellant Baishakhi Rai also suffered conviction under Section 380 of the Indian Penal Code and was sentenced to suffer rigorous imprisonment for a term of two years. However, all the sentences were directed to run concurrently. 2. The factual matrix are that on 17.01.1983 the appellants along with Raman Rai, Lukshman Rai, Ram Anup Rai, Bhuali Rai Banai Rai, Nand Kumar Rai, Uchit Rai, Banarasi Rai, Ragho Rai, Surendra Rai, Cheta Rai, Chandradip Rai, Smt. Chanda Devi, Chaman Rai, Bhuwaneshwar Pd. Singh and Santosh Rai came to the house of Ramji Paswan PW 4 which situate in village Shahpur Raghopur and asked him to vacate the house in which he was living, as the same had been purchased by them. It was alleged that after protests were registered, the appellants along with other accused persons demolished the boundary wall of the house, pelted brick bats and also assaulted the mother of the informant. It was alleged that Bhuwaneshwar Pd. Singh, Ishri Rai and Santosh Rai set the house on fire as a consequence of which the house belongings were burnt to ashes. It was alleged that Bhuwaneshwar Pd. Singh, Ishri Rai and Santosh Rai set the house on fire as a consequence of which the house belongings were burnt to ashes. Further it is alleged that Ishwari Rai made abortive bid to throw Lakshminiya Devi in the flames of the fire and also removed cattle from their possession, however, on alarm raised by the villagers and on arrival of police, while some cattle were removed by them, she buffalo was recovered. The fire Brigade was informed by the police which extinguished the fire. The motive assigned behind the incident was that as Ramji Paswan had purchased house in question from his uncle Brahmdeo Paswan, the appellants and other accused persons wanted to evict him forcibly from the house and on strength of these narration fardbeyan of Ramji Paswan, a police case was instituted, investigation commenced, on conclusion of which police laid charge-sheet. The appellants along with others on being committed to the Court of Sessions were eventually put on trial. 3. At trial, the prosecution has credit to examine nine witnesses which include the informant, his mother & father and also one Rajendra Paswan. The seizure list witnesses who were PWs 5 and 6 also came to be examined. The prosecution also examined Dr. Md. Shamsul Mian PW 7 who stated to have examined injuries on the person of Lakshminiya Devi. Two Investigating Officers of the case who happen to be K.K. Pandey PW 8 and Raj Kumar Sharma PW 9 were also among those who were examined by the prosecution. The defence too examined three witnesses. It seems from the commitment record and also the record of the trial Court that while the police laid charge-sheet against seventeen persons, Bhuwneshwar Pd. Singh and Santosh Rai were not sent up for trial. However, after some evidence were led by the prosecution in trial Court, Bhuwneshwar Pd. Singh and Santosh Rai were put on trial under Section 319 of the Code of Criminal Procedure. Singh and Santosh Rai were not sent up for trial. However, after some evidence were led by the prosecution in trial Court, Bhuwneshwar Pd. Singh and Santosh Rai were put on trial under Section 319 of the Code of Criminal Procedure. Thus, altogether 19 persons faced trial and the trial Court on consideration of complicity of Raman Rai, Lakshman Rai, Ram Anup Rai, Bhauli Rai, Bansi Rai, Cheta Rai, Chandradip Rai, Banarsi Rai, Ragho Rai, Surrendra Rai, Cheta Rai, Smt. Chanda Devi, Raman Rai, Bhuwneshwar Prasad Singh and Santosh Rai, conspicuously wanting in the evidence of Rajendra Prasad PW 1 whom he considered to be the only independent witness, acquitted them of the charges brought against them. Bhuwneshwar Pd. Singh arid Santosh Rai too were given the benefit of doubt by the trial Court, regard being had to the defence of all taken by them for which three witnesses were examined at trial and eventually the trial Court as has been discussed, tendered the verdict of guilt against accused Ishri Rai, Om Prakash Rai and Baishakhi Rai and sentenced them in the manner stated above. 4. The contentions were raised on behalf of the appellants that as on same set of evidence, majority of the accused person who stood trial, were acquitted of the charges brought against them, the conviction of the appellants on the same set of evidence was unwarranted. It was urged that the genesis of the dispute between the parties, as it would emerge from the evidence placed on the record was the land dispute for which the parties had put their rival claims. Both the parties claim to have purchased the house in question preceding the date of incident and equally they had their claim for possession. The learned counsel would urge that though there were prosecutions against the appellants and those who were acquitted of the charges about demolishing the boundary wall of the house and pelting brick bats, if the evidence of Investigating Officer who had occasion to visit the site of occurrence was to be taken into consideration to reach on a conclusion about the bona fide of the allegation, one cannot help feeling that the Investigating Officer had not stated in his evidence about broken boundary wall of the house or there being any sign of pelted brick bats. As about the injury shown to have been suffered by Lakshminiya Devi it was urged that the injuries noticed by the doctor were quite superfluous which one can suffer by brick bats. 5. The broad feature of the prosecution case as has been discussed was about demolition of the boundary wall, pelting of brick bats, causing injuries to Lakshminiya Devi, setting the house on fire and removing cattle from the possession of the informant. While analysing the evidences of the witnesses on these counts one can find that there was (sic) accusation against all about demolishing the boundary wall of the house and pelting brick bats for which there was no objective finding of the Investigating Officer and which he admitted in positive terms to have not mentioned in the police case diary. The attention of PW 1 had been drawn to the early statement rendered by him before police and he made candid admission that he did not state before the police about demolition of boundary wall and pelting of brick bats. Though the appellants and others were saddled also with allegation of committing arson where house belongings were burnt but as has been evidence of the Investigating Officer, statement of PW 2 was wanting before the police. Similar was the case with PW 3 also about there being no such statement before the police with regard to the appellants and others pelting brick bats. Now adverting to the allegation attributed to the appellants and others about setting the house on fire, making abortive bid to throw Lakshminiya Devi in the flames of fire when she suffered burn injuries, such allegations were attributed to Bhuwneshwar Pd. Singh and Ishwari Rai in the evidence of PW 1. As has been discussed, Bhuwneshwar Pd. Singh has been acquitted of the charges disbelieving his complicity in the occurrence on the plea of alibi raised by the defence. This witness would state that house too caught fire, which was admittedly not the case of the prosecution in the early version of the informant which he rendered before the police. Accused Chando Devi was suggested to be the person who sprinkled kerosene oil on the straw but rightly such assertion in the statements of the witnesses were wanting in the early version which they rendered before the police and rightly that part of the prosecution case was disbelieved by the trial Court. Accused Chando Devi was suggested to be the person who sprinkled kerosene oil on the straw but rightly such assertion in the statements of the witnesses were wanting in the early version which they rendered before the police and rightly that part of the prosecution case was disbelieved by the trial Court. Contrary to assertions made by PW 1 about complicity of Bhuwaneshwar Pd. Singh and Ishri Rai to set the house on fire PW 2 would saddle Santosh Rai also. This witness would admire in most positive term that he rendered statement before the police Officer and also before the Court that shortly after he came from the police station, he noticed fire in the house. Though this witness claims that burnt sari of Lakshminiya Devi was seized by the police, there was no such assertion in the evidence of the investigating Officer who replied in negative terms. PW 3 would admit that after she came out from the house on being assaulted by the miscreants, house had already caught fire and in this view of the matter, she cannot be an ocular witness to the factum of the house having been set on fire by those who were saddled with such allegations. Though, Lakshminiya Devi would state that she suffered burn injury on her person but the doctor did not notice such injury when she was clinically examined. The attention of this witness was drawn towards her early version made before the police about Santosh Rai and Bhuwneshwar Pd. Singh setting the house on fire but no such statements were shown to have been recorded by the police. PW 4 would saddle Lakshman, Bhuwneshwar and Ishri for setting house on fire when Lakshminiya sustained burn injury his statement on this score was challenged by the defence, there being no such statement before the police and the Investigating Officer stated before the court that the statement made by the witnesses about burning of sari and straw was not rendered before him and simply alleged seizure of ash by the Investigating Officer from the place of occurrence which would not bring home charges under Sections 435/149 of the Indian Penal Code. 6. So far the allegation against the appellants and others about removal of cattle from the possession of informant was concerned, the evidence of PWs 1 to 3 was not with the tune with the fardbeyan of the informant. 6. So far the allegation against the appellants and others about removal of cattle from the possession of informant was concerned, the evidence of PWs 1 to 3 was not with the tune with the fardbeyan of the informant. Their evidences were most inconsistent on this score as. to by whom cattle were removed and when they were apprehended by the police. Some witnesses were stating that while they were taking cattle, they were apprehended by the police, the Investigating Officer would state in his evidence that while police making hectic search for the cattle after the case was registered against them they were apprehended. 7. This fact cannot be lost sight of that apart from the incoherent statements of witnesses about broad features of the prosecution case sixteen number of the accused persons who faced trial along with the appellants, were acquitted of the charges and in this view of the matter also the findings recorded by the trial Court convicting and sentencing the appellants for different terms of imprisonment are set aside and they are acquitted of the charge levelled against them. Their bail bonds are discharged and appeal accordingly succeeds.