Research › Search › Judgment

Patna High Court · body

2003 DIGILAW 460 (PAT)

Shinghashan Rai v. State Of Bihar

2003-04-22

CHANDRA MOHAN PRASAD

body2003
Judgment CHANDRA MOHAN PRASAD, J. 1. This appeal is directed against the judgment dated 19th January, 2002 of the 6th Additional Sessions Judge, Chapra in Sessions Trial No.43 of 2001 whereby and whereunder each of the appellants has been convicted under Section 307/34 of the IPC and sentenced to undergo ten years RI Appellant Manager Rai has also been convicted under Section 379 of the IPC and sentenced to monetary fine of Rs. 3,000/- (Rupees three thousand) and, in default of payment of fine, to undergo imprisonment for three months. 2. The fardbeyan of the case was recorded by ASI Sri N. Singh on 14th March, 2000 at 7.30 p.m. in PMCH, (Hathua Ward), Patna on Bed No. 7 on the statement of the injured-appellant Suresh Rai who stated that on 10th March, 2000 at about 7.30 p.m., he had returned to his house on tyrecart after selling straw at Chapra and he was feeding his cattle at his darwaja at which time, appellant Shighashan Rai came there and he told him (informant) to accompany him again, as he had some work with him. At this, he (informant) went away with him and Shighashan Rai took him to the tea shop situated at a distance of 500 yards and took tea there and thereafter he took him (appellant) to the house of Ramagya Chaudhary where he saw that three persons were sitting there and they were taking liquor. Seeing him there, Jallandhar Rai (appellant) thrashed him (informant) down on the ground and Kameshwar Rai (appellant) sat on his chest and he (Kameshwar Rai) started slitting his throat with a Fasuli with intention to kill him. Shighashan Rai had caught hold of his (informants) leg and Manager Rai was catching hold of his hands and he (informant) tried to save himself and in course of that, Fasuli assaults were given on his palm and fingers causing cut injuries. While he was on the ground, Rs. 1,500/- had been taken away from his pocket and then the appellant fled away saying that they had completed their work. Receiving the cut-injury, he (informant) began converging and then on hearing hulla, his family members came there and they took him to the house and gave him first aid treatment of Doctor there and on the advice of that Doctor, he was removed to PMCH, Patna. Receiving the cut-injury, he (informant) began converging and then on hearing hulla, his family members came there and they took him to the house and gave him first aid treatment of Doctor there and on the advice of that Doctor, he was removed to PMCH, Patna. In course of movement to PMCH, Patna, he became unconscious and he regained his consciousness on the day when he gave his statement. He signed the fardbeyan(Ext-6). 3. PW 11 Suresh Rai is the informant himself. He deposed that on 10th March, 2000, at about 7.30 p.m., he had returned to his house after selling straw and while he was feeding his cattle, appellant Shighashan Rai came there and he told : "Uncle, accompany me, I have got some work with you". Then the informant further deposes that Shighashan Rai took him to a tea shop situated at a distance of 500 yards and he took tea there. Then Shighashan Rai took him to the house of Ramagya Chaudhary where three persons were taking wine and toddy and that as soon as he (informant) arrived there, Jallandhar Rai thrashed him on the ground there and then Kameshwar Rai sat on his chest and with intention to kill him, started slitting his neck. Manager Rai had caught hand of his shoulder and had gagged his mouth and Shighashan was also catching hold of his (informants) legs. He tried to ward off the assaults with his hands and in that attempt, both of his palms got injured and his throat was also cut. He also says that Rs. 1,500/- was taken out of his pocket. He was in his senses at that time but he got unconsciousness during his removal to PMCH and on 14th March. 2000, when he regained his consciousness in PMCH. Patna, he gave his statement, i.e., fardbeyan and signed over it. The signature has been marked Ext- 1/a. He claimed to have identified the accusedpersons. At para 10 of his cross-examination, he deposed that when the accused had thrown him down on the ground, he had cried but nobody had come there on his cries. He also deposed that no person of the adjacent locality of Ramagya Chaudhary had come there. At para-11 of his cross-examination, he deposed that blood had come out of his injuries and had fallen on an area of 2-3 cubits there. 4. He also deposed that no person of the adjacent locality of Ramagya Chaudhary had come there. At para-11 of his cross-examination, he deposed that blood had come out of his injuries and had fallen on an area of 2-3 cubits there. 4. PW 1 Bharat Chaudhary says that he had not seen the occurrence nor he knows anything about it. 5. PW 2 Sabha Rai deposes that at about 7.30 p.m. he was at his darwaja and at that time Suresh Rai (informant) had returned after selling straw and he was feeding his cattle and Shighashan Rai arrived there and he took Suresh Rai with him saying that he had an urgent work with him. Then this witness deposes that when Suresh Rai could not return, and he went out to search him and when he reached at the darwaja of Ramagya Chaudhary, he saw that Suresh Rai was convulsing with the injuries and that there were cut injuries on his neck, palm and fingers. This witness also deposes that Suresh Rai had disclosed before him that Jallandhar Rai had thrashed him down there and Shighashan Rai had caught his leg, Manager Rai had caught his hands and Kameshwar Rai sitting on his chest had inflicted cut injury by means of fasuli on his neck, palm and fingers. Then this witness says that he had removed the informant to PMCH, Patna where his statement was recorded. Thus, this witness says to have arrived at the P.O. after the occurrence and to have learnt about the occurrence from the informant. At para-9 of his cross-examination, he deposed that he had reached at the darwaja of Ramagya Chaudhary at 8.30 p.m. and at that time, he had found the informant lying by the side of the road there and crying and convulsing at that time. At para-10 he has deposed that much blood had fallen there on the ground in an area of 4-5 cubits. At para-4 he deposed that since last 10 years, there has been enmity between the informant and the accused-appellants and for the last five years, there had been land dispute between them. In the very examination-in-chief at para-1 this witness (PW 2) has deposed that Lalbabu Rai (PW 5) and Umesh Singh (PW 3) had also come to the PO with him. In the very examination-in-chief at para-1 this witness (PW 2) has deposed that Lalbabu Rai (PW 5) and Umesh Singh (PW 3) had also come to the PO with him. Thus, according to the evidence of this witness, PWs 3 and 5 had come to the PO after the occurrence. 6. PW 3 Umesh Prasad Singh deposes that on hulla at about 7.30 p.m., when he had reached near the house of Ramagya Chaudhary, he had seen that Kameshwar Rai was sitting over the chest of the informant and he was slitting his neck and at that time, Manager Rai was catching hold of his hand and he was also gagging his mouth and Shighashan Rai was catching hold of his (informants) leg and Manager Rai was taking out money from the informant. He says that people had taken the informant to PMCH, Patna. Thus, this witness is said to be an eye-witness to the occurrence but at para-7 of his cross-examination he deposes that Sabha Rai (PW 2) had already arrived there, before his arrival. Thus, this witness had admittedly arrived at the PO after PW 2 who had arrived after the occurrence and had learnt from the informant about the occurrence. It was argued that this witness cannot be competent and reliable witness to the occurrence. 7. PW 4 Kisuni Rai is a hostile witness and he says to be knowing nothing about the occurrence. He has also denied that he had given any statement before the police supporting the case of the prosecution. PW 5 Lalbabu Rai has deposed about the occurrence as an eye-witness giving details of the occurrence and in the very examination-in-chief, he says that Sabha Rai (PW 2) had also seen the occurrence. This is worth noticing here that Sabha Rai (PW 2) says that he had come to the PO at 8.30 p.m. after the occurrence. Thus, when Sabha Rai (PW 2) did not see the occurrence this witness (PW 5) cannot be expected to have seen the occurrence with all its details, as he has given in his evidence. 8. PW 6 Jaglal Chaudhary has been examined by the prosecution on the point of occurrence but this witness gives altogether a different version of the occurrence. He deposes that in the night of occurrence, he was at his house that Suresh Rai had come to his darwqja in injured condition. 8. PW 6 Jaglal Chaudhary has been examined by the prosecution on the point of occurrence but this witness gives altogether a different version of the occurrence. He deposes that in the night of occurrence, he was at his house that Suresh Rai had come to his darwqja in injured condition. He clarifies at para-2 of his cross-examination that Suresh Rai had arrived at about 10.00 p.m. and that after arrival there, he had fallen on the ground and blood was coming out of his body. He further deposes that 20-25 public had assembled there at that time. At para-3 of his cross-examination, he deposed that he does not know as to who had assaulted Suresh Rai and he further deposed that Suresh Rai(informant) was in the habit of taking liquor and toddy. At para- 4 of his cross-examination, he deposed that his house situated at a distance of 100 yards east of the house of Ramagya Chaudhary. Thus, according to this witness, the occurrence took place at some place at about 10.00 p.m. and received injury in that occurrence, the informant had come injured at his darwqja and had fallen down. 9. PW 7 Kallu Chaudhary says that it was at about 7/8.00 p.m. that he had seen Suresh Rai in injured condition and at para-2 he deposed that at that time Suresh Rai was not in a position to speak. PW 2 Ramagya Chaudhary is an important witness for the prosecution and according to the prosecution, the occurrence has taken place at the stated time of 7.30 p.m. at the darwaja of this witness. But this witness gives a complete go-bye to the prosecution version, as regards the manner and time of occurrence. This witness deposes that in the night of occurrence, at about 10.00 p.m., hearing hulla, he came out of his house and saw that Suresh Rai was having injuries on his neck and hands. At para-2 of his cross-examination this witness deposed that the hulla was coining from a distance of about 500 yards there and when he had gone there with some villagers, he had seen that Suresh Rai was lying on sand near the bank of river. At para-2 of his cross-examination this witness deposed that the hulla was coining from a distance of about 500 yards there and when he had gone there with some villagers, he had seen that Suresh Rai was lying on sand near the bank of river. Thus, according to this witness, informant Suresh Rai was found lying in injured condition at about 10.00 p.m. in the night on sand near the bank of river situated at a distance of 500 yards from the house of this witness. The prosecution had no grievance against this witness and he has not been declared hostile. This witness has denied at para-3 of his cross- examination that it was not correct that on the day of prosecution, the accused were sitting in his house and they had taken liquor. At para-6 of his cross-examination, he deposed that Suresh Rai (informant) was taking liquor and his character was bad. 10. FW 9 Shikari Rai simply says that he had seen the informant in injured condition but he did not know as to who had assaulted him. PW 10 Deonath Sah is a hostile witness and he has said to be knowing nothing about the occurrence and he has denied to have given any police statement said to have been given before the police. 11. PW 12 Dinesh Kumar Mahto S.I. is the I.O. of the case. He deposed that he had recorded the statement of witnesses. He deposed at para-2 of his cross-examination that the informant had not disclosed the name of any witness in his statement. He also stated that he had not disclosed the name of any Doctor who had given first aid treatment to the informant after the occurrence. At para-5 of his cross-examination, he disposed at para-26 of the case diary that the informant along with others was an accused in Dariapur P.S. case No. 42 of 1999 under Sections 384, 341, 342 and 323, IPC. At para-10 he deposed that the witness Sabha Rai (PW 2) had not stated before him that the informant had disclosed before him the details of the occurrence. PW 14 Kishun Das, J.S.I, is the I.O. who had conducted the part of the investigation. He deposed that he had inspected the P.O. which is said to be a Phus Palani situated outside the house of Ramagya Chaudhary. PW 14 Kishun Das, J.S.I, is the I.O. who had conducted the part of the investigation. He deposed that he had inspected the P.O. which is said to be a Phus Palani situated outside the house of Ramagya Chaudhary. At para-45 he deposed that he had not found any blood or any article containing blood at that place. He also deposed at para-3 that the informant had not disclosed the name of any witness in his fardbeyan. 12. PW 15 Ratnesh Kumar Dubey is a formal witness who had proved the writings on the fardbeyan. PW 13 is Dr. Satish Kumar who had examined the injuries on the informant. He says that on 11th March, 2000, he had examined the injured informant and had found the following injuries on his person : (I) Deep sharp cut injury on the throat extending from interior margin of one sterno mastoid to other about 10" in length, trachea exposed thyrynx exposed strap muscles severed thyroid cartilege cut through and through, pyrings sharp cut on both sides upto the lateral valva. (II) Multiple incised injuries involving the right and left palm bone deep, (a) Left palm muscle deep 3" length sharp cut at the base of little finger. (b) Lacerated cut at the base of index finger 4" in length muscle deep. (c) Sharp cut over the ring finger at middle phalinx. (d) Sharp cut on middle finger at the middle phalinx. (e) Lacerated wound over the index finger over the middle phalinx. (III) Injuries on right palm : (a) Lacerated wound based on thumb from palmer to dorsal lateral side muscle deep. (b) Lacerated muscle deep 4" cut at the base of index of middle finger of the palm. (c) Lacerated wound on the middle of the palm at the middle and index finger. (d) Lacerated cut at the base of ring finger. (e) Lacerated would at the little finger near the proximal phalinx. (IV) One inch bone deep blunt injury over the left temporal region near the hair line on the scalp. The time of injuries within 6 hours. Nature of injuries very grievous. 13 At para-3 of his cross-examination, he deposed that the injury Nos. 3 and 4 can be caused by hard blunt substance. At para-4 of his cross-examination, he deposed that injury No. 4 must have been caused by hard blunt substance. The time of injuries within 6 hours. Nature of injuries very grievous. 13 At para-3 of his cross-examination, he deposed that the injury Nos. 3 and 4 can be caused by hard blunt substance. At para-4 of his cross-examination, he deposed that injury No. 4 must have been caused by hard blunt substance. At para 6 he deposed that all the injuries were caused by two different weapons. Thus, the Doctor found on the informant, the injury of two types i.e. incised wound as well as lacerated wound and he is of the opinion that the injuries were caused by two different weapons. This will be considered later on as because the prosecution case is only about causing of injury by falsuli which is a sharp cutting weapon. 14. During the argument, learned counsel for the appellants submitted that the informant says that he had cried at the P.O. and people had assembled there but in the fardbeyan which has been recorded after considerable lapses of time when the informant regained his consciousness, the informant does not name any witness. There is no explanation why the informant does not name any witness. 15. The learned counsel for the appellant further submitted that there is no consistency and coherence in the evidence of witnesses as regards the manner of occurrence. It was pointed out that according to the informant, the occurrence took place outside the house of Ramagya Choudhary but Ramagya Chaudhary (PW 8) gives a totally different version amount the occurrence which would be evident from his evidence, as discussed above. Ramagya Chaudhary says in his evidence that it was at about 10.00 p.m. that he had heard hulla from about 500 yards and going there he had found that Suresh Rai (informant) was lying injured on sand near the bank of river there. Thus, according to Ramagya Chaudhary, the P.O. is near the bank of river. It is also pointed out that another witness Jagial Chaudhary (PW 6) has given a third version of the manner of occurrence and he says that it was at about 10.00 p.m. that Suresh Rai had come at his darwaja in injured condition and had fallen there. Thus, according to Ramagya Chaudhary, the P.O. is near the bank of river. It is also pointed out that another witness Jagial Chaudhary (PW 6) has given a third version of the manner of occurrence and he says that it was at about 10.00 p.m. that Suresh Rai had come at his darwaja in injured condition and had fallen there. Thus, the informant is badly contradicted in his evidence, regarding the manner of occurrence and considering these contradictions, the evidence of the informant does not inspire any confidence to believe that the occurrence took place in the manner as propounded by the prosecution. 16. As regards time of occurrence also, there is no consistency in the evidence of witnesses. According to the informant, the occurrence took place at 7.30 p.m.. According to PW 2 who says to have arrived at the P.O. and to have learnt about the occurrence from the informant the time is 8.30 p.m. According to PW 8, it was at about 10.00 p.m. that he had heard hulla from the bank of river and on going there, he had found the informant lying there in injured condition. According to PW 6 also it was at about 10.00 p.m. that the informant had come to his darwqja in injured condition and had fallen there. Thus, time of occurrence, according to the witnesses, is not same nor consistent and considering this inconsistency about the time of occurrence, it is not believable that the occurrence took place at the time, as said by the prosecution. 17. Learned counsel for the appellants pointed out ,that according to PW 11 and PW 3 copious blood had fallen on the ground at the P.O. but the I.O. (PW 14, para-5) has deposed that he had not found any blood or blood containing article during the inspection of the P.O. It was replied by the learned APP that the occurrence is of 10th March, 2000 and the I.O. (PW 14) inspected the P.O. on 29th March, 2000 and, thus, when visited the P.O. after such a long period, it was possible that the blood might have vanished. No doubt, there has been delay in inspection of the P.O. but when copious blood is said to have fallen on he ground, specific reasons must be shown why no trace of blood was found there when it is not the case that the blood was washed away in rain or it was at a place where people used to walk like a public place. Thus, absence of blood at the P.O. is also a material to be considered against the case of prosecution. Learned counsel for the appellant argued that admittedly the occurrence is of night hours and there cannot be expected to be natural light at that time for identification of persons. It is argued that in the whole of the evidence led by the prosecution, there is no mention of any means of identification and that when. there is no means of identification, it is difficult to believe how the accused persons were seen and identified during the occurrence which took place at night hours. This is an important point for consideration. In absence of any means of identification, it is never safe to place reliance on the claim of the witnesses that they had seen the accused and identified them during the occurrence. 18. The learned counsel for the appellants argues that the medical evidence as adduced by the Doctor (PW 13) gives the details of various injuries found on the person of the informant and the Doctor has opined that the injuries were caused by sharp cutting weapon as well as hard and blunt substance and the Doctor (PW 13, para-6) categorically deposed that the injuries were caused by two different weapons. According to the case of the prosecution, the weapon used for causing injury was only fasuli, which is a sharp cutting weapon. It is not explained what was the other kind of weapon. Thus, considering the medical evidence, a doubt is entertained over this version of the prosecution that the injuries were caused by fasuli, a sharp cutting weapon only. 19. The learned counsel for the appellants referred to the evidence of witnesses who have said that the informant was in the habit of taking liquor and he also referred to the evidence of the 1.0. 19. The learned counsel for the appellants referred to the evidence of witnesses who have said that the informant was in the habit of taking liquor and he also referred to the evidence of the 1.0. that the informant was an accused in a case and he further referred to the evidence of PW 2 at para-6 that since last ten years, there was enmity between the accused on the one hand and the informant on the other. It was argued by the learned counsel for the appellants that the informant was a man of questionable character having enmity with several persons and that due to enmity, he falsely implicated the appellants to feed his grudge against them. No doubt, enmity is admitted but the prosecution case cannot be disbelieved on the sole ground as because enmity cuts both ways. If there can be false implication due to enmity, there can also be assault due to enmity. What ever is required in such case of enmity, it is that the evidence has to be examined with great care and caution. 20. Considering this aspect of the case, the evidence of witnesses and after considering the infirmity found in the case of prosecution, I feel that the prosecution has not been able to prove charges beyond the shadows of doubt. Accordingly, the accused-appellants deserve to be acquitted of the respective charges levelled against them. 21. In the result, the appeal is allowed and the conviction and sentence passed by the trial Court are set aside. Appellant Kameshwar Rai who is in jail is ordered to be released forthwith, if not wanted in any other case. The rest of the appellants are discharged from the liability of their bail bonds. 22. Mr. Arun Kumar Tripathi, Advocate who assisted the Court by arguing on behalf of appellants amicus curiae shall be paid his remuneration by the Legal Aid and Services Authority of the Court.