Research › Search › Judgment

Patna High Court · body

2004 DIGILAW 1207 (PAT)

Jaiya Rai And Others v. State Of Bihar

2004-12-06

MRIDULA MISHRA, P.N.YADAV

body2004
Judgment Mridula Mishra, J. 1. Nine appellants have preferred this appeal against the judgment and order dated 1.12.2001 passed by the Illrd-Additional Sessions Judge, Sitamarhi, in Sessions Trial No. 304 of 1995/106 of 2000. Appellant No. 1 Jaiya Rai has been convicted u/s. 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and fine of Rs. 2000.00 . In default of payment of fine R.I. for one year. He has further been convicted u/s. 148 of the Indian Penal Code and has been sentenced to R.I. for two years. Appellant Nos. 2 to 9 have been convicted under Secs. 302 and 149 of the Indian Penal Code and sentenced to undergo R.I. for life as well as fine of Rs. 2000.00 . In default of payment of fine, R.I. for one year. They have also been convicted under Section 147 of the Indian Penal Code and sentenced to R.I. for one year. . . . 2. Fardbeyan of the informant Nagendra Rai (PW 2) was recorded by the Sub-inspector of Dumra Police Station on 19.3.1994 at about 11 pm at the police station. In his fardbeyan Nagendra Rai stated that on 19.3.1994 at about 9 pm his father Ram Lakhan Rai was outside his residence talking to Madheran Rai about some feast. His father had just taken his meal when all the accused persons suddenly came there. Jaiya Rai was armed with chakua meant for chopping of chaf and rest were armed with lathi and Pano Devi was armed with bamboo fatha. Jaiya Rai abused the father of the informant and asked as to why he was talking about the feast held on his uncles Shradh. Some altercation took place between Jaiya and the father of the informant. Jaiya Rai assaulted Ram Lakhan Rai with the frame of the chakua on his head with an intention to kill him. As a result of which Ram Lakhan Rai became injured and he fell down due to profuse bleeding from his head. Thereafter, the other accused persons also assaulted with lathi. The informant and his brother intervened. They too were assaulted by the accused persons. Father of the informant died then and there at the place of occurrence itself. Thereafter, the accused persons fled away. 3. Thereafter, the other accused persons also assaulted with lathi. The informant and his brother intervened. They too were assaulted by the accused persons. Father of the informant died then and there at the place of occurrence itself. Thereafter, the accused persons fled away. 3. On the basis of the fardbeyan of Nagendra Rai (PW 2) a formal FIR was instituted as Dumra Police Station case No. 39 of 1994 against nine accused persons named in the FIR for the offence punishable under Secs. 147, 148, 149, 448, 323 and 302 of the Indian Penal Code, 1860 . The case was investigated by IO (PW 2). He sent the dead body for post mortem and submitted charge-sheet on conclusion of investigation. After cognizance case was committed for trial and the trail Court convicted the appellants as stated above. 4. Defence of the appellants was that no such occurrence has taken place and they have falsely been implicated. 5. Prosecution examined altogether seven witnesses to substantiate the charges against the accused persons. PW 1 Jogendra Rai and PW 2 Nagendra Rai are the sons of the deceased Ram Lakhan Rai and they have claimed to be the eye-witnesses of the occurrence. They also received injury at the hands of accused in the occurrence. PW 5 Ramashish Rai is the cousin of PW 1 and PW 2 who is said to have received injury in the said occurrence but he has been declared hostile as he did not support the prosecution case. PW 3 Bhura Rai has deposed that the deceased was his maternal uncle. He has only stated about the assault made by Jaiya Rai on the head of Ram Lakhan Rai. He has admitted that his village is situated at a distance of six kilometres from the place of occurrence and his statement was recorded by the investigating officer four days after the occurrence. PW 4, Dr. Bishwambhar Thakur has examined the injured witnesses PW 1 and PW 2. He found simple injuries caused by hard and blunt substance on the person of the injured. In cross-examination he gave his opinion that such injuries can be possible to someone caused by hard and blunt substance. PW 7, Dr. Jogendra Mahto conducted the post mortem on the person of the deceased Ram Lakhan Rai and found one lacerated wound 3" x 1/2" x bone deep over vertex left to mid line. In cross-examination he gave his opinion that such injuries can be possible to someone caused by hard and blunt substance. PW 7, Dr. Jogendra Mahto conducted the post mortem on the person of the deceased Ram Lakhan Rai and found one lacerated wound 3" x 1/2" x bone deep over vertex left to mid line. Swelling 5" x 3" over right scapula. Abrasion 1/2" x 1/2" at the root of left thumb on interior aspect. Swelling 3" x 2" over chest in middle. Swelling 2" x 1" over back of neck on middle. Swelling 2" x 2" over front below left knee. On opening of skull, right perital and temporal bone broken. Brain matter lacerated and full of blood. He further found on opening of throax-thorracic cage intact. Lungs intact and pale. Heart intact and partially filled with blood. In the opinion of PW 7 death was caused due to shock and haemorrhage due to above mentioned injuries caused by hard and blunt substance. In the post mortem report PW 7 has given time elapsed since 24 hours but in his examination in chief he stated that time elapsed since 12 hours. PW 7 also stated that on opening of stomach he found that the same contained digested food particles. In cross-examination he stated that foods are digested completely four hours after its taking and digestion depends upon the quality and quantity of food taken by the person concerned. 6. PW 6, Kaushal Kumar Singh is the investigating officer who recorded the fardbeyan of PW 2 prepared inquest report (Ext. 4), sent the dead body for post mortem, visited the place of occurrence and recorded the statement of the witnesses. The place of occurrence, as per the evidence of the investigating officer PW 6, is the Sahan land where he found the blood marks and from where he also seized material exhibits like chakua which was used for assault on the head of the deceased. The investigating officer also made seizure from the house of the appellant Jaiya Rai on 20.3.1994 but he admitted that the seizure list was not supplied to any one in the family of Jaiya Rai. He also admitted that he found blood-stain on the material exhibit. 7. The investigating officer also made seizure from the house of the appellant Jaiya Rai on 20.3.1994 but he admitted that the seizure list was not supplied to any one in the family of Jaiya Rai. He also admitted that he found blood-stain on the material exhibit. 7. The appellants counsel has challenged the judgment and conviction on the ground that the prosecution has failed to prove the place of occurrence, the -manner of occurrence and the genesis of occurrence. All independent witnesses who have been named in the FIR as well as the names of witnesses mentioned by PW 1 and PW 2 in their evidence have deliberately not been examined by the prosecution and only the interested witnesses like PW 1, PW 2 and PW 3, who are sons and nephew of the deceased, have been examined. The evidence of me interested witnesses on the point of time and manner of occurrence has not been corroborated by the medical evidence. As such, the story of the prosecution leads to a conclusion that the time, manner and place of occurrence as stated by the prosecution is incorrect and the conviction of the appellant is also not sustainable. 8. As per the prosecution story the genesis of occurrence is that the deceased Ram Lakhan Rai was talking to Matheran at his darwaja. At that time he had just finished his dinner. PW 1 and PW 2 have stated that the deceased had taken rice and dal and after finishing his dinner he was washing his hand when the accused persons came and started assaulting him. As per the prosecution story Matheran was present at the place of occurrence. But Matheran, the most competent witness, did not come to the Court. If the prosecution would not have screened the evidence of this witness, he would have stated the real story of the prosecution. As stated in the FIR another person Ram Hriday Rai was also present. But he was also not examined. Village chowkidar Binod Paswan came at the place of occurrence and he accompanied the dead body up to the police station. This chowkidar was sent by Nagendra Rai PW 2 to the police station for giving information but this chowkidar has also not been examined. But he was also not examined. Village chowkidar Binod Paswan came at the place of occurrence and he accompanied the dead body up to the police station. This chowkidar was sent by Nagendra Rai PW 2 to the police station for giving information but this chowkidar has also not been examined. Since all these persons, who were present at the place of occurrence just at the time and after the occurrence, have not been allowed to depose in Court by the prosecution, it indicates that the genesis of occurrence that the deceased was assaulted by Jaiya only because he was talking about the feast on the occasion of Shradh of the uncle of Jaiya, had not been proved. 9. Argument has been advanced that most witnesses, who have been examined, are interested witnesses. The competent and natural witnesses like Matheran, Ram Hriday Rai and chowkidar Binod Paswan have not been examined. So far the reliability of witnesses is concerned, PW 1 and PW 2 being the son of the deceased and place of occurrence being the darwaja of their house, their presence at the place of occurrence is most natural and they are the most competent witnesses who could have witnesses the occurrence at 9 pm in the night. In the villages generally one does not visit another ones house in the night and admittedly, it was the dinner time, it is not expected that any other person except the family members would be present at the place of occurrence. In this background the evidence of PW 1 and PW 2, who are sons of the deceased and the most natural and competent witnesses, cannot be thrown out simply on the ground that they are interested and partisan witnesses. 10. From the appellants side also it is argued that the prosecution has not given real manner of occurrence as medical evidence totally contradicted the evidence of the prosecution witnesses. PW 1 and PW 2 have stated that the deceased had just finished his meal, and washing his hands when the accused persons came and assaulted the deceased. According to the opinion of the doctor (PW 7), on opening abdomen he found that stomach contained digested food particle. He also stated that foods are digested completely after four hours from its taking. According to the opinion of the doctor (PW 7), on opening abdomen he found that stomach contained digested food particle. He also stated that foods are digested completely after four hours from its taking. Submission is that if the occurrence would have taken place as stated by PW 1 and PW 2 just after finishing the dinner by the deceased, in that circumstances, PW 7 would not have found digested food particles in the abdomen of the deceased. This indicates that the prosecution has falsely stated regarding the time of occurrence and manner of occurrence. The occurrence might have taken place in some other manner and at some other time and a false prosecution story has been given by the prosecution witnesses who are interested witnesses. 11. I do not find much substance in the argument advanced by the appellants counsel. After complete digestion there cannot be any food particles in the stomach. Since PW 7 found digested food particles, it means the process of digestion started and it had not reached to its completion. In case digestion would have completed, PW 7 would have found faecal materials in the stomach of the deceased. This indicates that the prosecution has come with a true version of the prosecution story. In the FIR it has been stated that after taking dinner the deceased Ram Lakhan Rai was talking to Matheran. Possibility is that after finishing his dinner he continued to talk with Matheran for some time and thereafter when he went to wash his hands, he was attacked and assaulted by the accused-appellants. What was the period for which the deceased continued to talk with Matheran had not been given in the FIR and witnesses have also not been cross-examined on this point and, as such, no conclusion can be drawn that just after finishing his dinner he was washing his hand and was attacked, since the period for which he continued to talk with Matheran had not been given, PW 7 has rightly found digested food particles in the abdomen of the deceased and the medical evidence completely corroborates the prosecution story. 12. So far as injury, which has been found by the doctor on the person of the deceased has completely been corroborated the prosecution evidence. 12. So far as injury, which has been found by the doctor on the person of the deceased has completely been corroborated the prosecution evidence. In this regard, PW 1 and PW 2 have also stated that Jaiya Rai assaulted the deceased with frame of chakua on his head and he started bleeding profusely. This evidence has been supported by the evidence of PW 6 the investigating officer. He found blood at the place of occurrence. PW 6 also seized blood-stained frame of chakua material Ext. 1 and 1/a. The doctor also found injury on the head of the deceased caused by hard and blunt substance i.e. the blunt side of the chakua which was seized by the investigating officer on which he found blood- stain. This evidence completely corroborated the prosecution version. 13. So far participation of all the appellants are concerned, PW 1 and PW 2 have stated regarding the participation of all the accused persons. They have stated that appellant Jaiya Rai assaulted with frame of chakua on the head of the deceased. Thereafter, all other appellants started assaulting with lathi. PW 7 has found altogether six injuries on the person of the deceased which indicate that all appellants have participated in the offence. PW 1 and PW 2 have also deposed that they were also assaulted by the accused persons and this has also been corroborated by the evidence of PW 4 Dr. Bishwambhar Thakur who had examined PW 1 and PW 2 on the date of occurrence itself and have found simple injuries caused by hard and blunt substance. 14. Considering the facts and circumstances and evidence of PW 1 and PW 2, who are the most competent and natural witnesses, we do not find any reason for interfering with the judgment and order of conviction passed by the trial Court. Accordingly, the judgment and order of conviction passed by the trial Court is hereby affirmed and this appeal is dismissed. 15. Appellants, namely, Pano Devi, Dharichan Rai, Rambaboo Rai, Rameshwar Rai, Suka Rai, Bharat Rai, Shatrughan Rai and Mithlesh Rai are on bail. Their bail bonds are cancelled and they are directed to be taken into custody. Appellant Jaiya Rai is in custody and he will remain there for the remaining period of his sentence.