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2004 DIGILAW 314 (PAT)

Kailash Rai v. State Of Bihar

2004-03-17

AFTAB ALAM, B.K.JHA

body2004
Judgment AFTAB ALAM and BAL KRISHNA JHA JJ. 1. These three appeals arise out of the common judgment and order passed on 11/17th August, 2000 by the then learned Additional Sessions Judge-IV, Begusarai in Sessions Trial No. 326/85, so they were heard together and are being disposed of by this judgment. 2. The appellant, Sunil Rai, son of Kailash Rai, in Criminal Appeal No. 401 of 2000, the appellant, Kailash Rai, son of late Sheo Khelawan Rai in Criminal Appeal No. 393 of 2000 and the appellant, Sunil Rai son of Brahmdeo Rai in Criminal Appeal No. 419 of 2000, have been convicted and sentenced to R.I. for life with fine Rs. 2,000/- for the offences under Sections 302/34, IPC. The fine amount was ordered to be paid as compensation to the legal heirs or relatives of the deceased, Suresh Mahaton. The lower Court committed an error by passing no order about the sentence in default of payment of fine. The accused, Sunil Rai, son of Kailash Rai, has further been convicted and sentenced to R.I. for 10 years under Section 307 of the IPC. The accused, Sunil Rai, Son of Brahmdeo Rai and Sunil Rai, son of Kailash Rai, have again been convicted and sentenced to R.I. for three years under Section 27 of the Arms Act. All the awarded sentences, however, were ordered to run concurrently. 3. On 13.9.1982, the informant, Dinesh Mahto, PW 6 lodged FIR alleging inter alia that in the preceding might his two injured brothers, Suresh Mahto (deceased) and Ram Naresh Mahto, PW 5, were sleeping together near their tea shop located adjacent west of Bagraha Dih road. He himself along with his nephew, Binay Mahto, PW 3 was sleeping on the Kathra of the betel shop. On hearing the sound of firing at about 3 a.m. he along with his nephew, Binay Mahto, woke up and noticed that the accused, Anil Rai, son of Kailash Rai, fired a shot from a pistol on the head of Ram Naresh Mahto. He further alleged that the accused, Sunil Rai, son of Brahmdeo Rai, was standing near the head of his injured brother, Suresh Mahaton and he had already fired shot from his pistol at him. He further alleged that the accused, Sunil Rai, son of Brahmdeo Rai, was standing near the head of his injured brother, Suresh Mahaton and he had already fired shot from his pistol at him. He also noticed that the accused, Sunil Rai, son of Brahmdeo Rai, was opening his pistol there and the accused, Ram Naresh Mahto and Kailash Mahto were standing on the road. The informant further alleged that she identified all the four accused persons in the light of lantern burning at the tea shop. Thereafter he along with his nephew raised hulla whereupon nearby people rushed there. Then on the direction of the accused, Kailash Rai and Ram Naresh Rai, all of them made good escape from there towards east. The informant further alleged that the police posted at Bagraha Dih convoy post also arrived there, saw the injured and managed for the removal to the police station on a rickshaw. The informant further alleged that on 11th September, 1982 at about 4 p.m. the accused, Sunil and Ram Naresh Rai had got the Maithy crops of the informant grazed by their she buffaloes as a result of which there had been hot altercation in between them and both the them had threatened the informants brother to commit his murder. On the same day, i.e., 13.9.1982 at 4.30 a.m. the informant, Dinesh Mahto, PW 6 took his both the injured brothers on a Rickshaw to Phulwaria Police Station under Begusarai District. There his fardheyan (Ext. No. 2) was recorded by the S.I., P. Singh. His fardbeyan was forwarded to the Teghra Police Station for the institution of a case and on the basis of which a formal, FIR (Ext. No. 3) was drawn up and Teghra PS. Case No. 158 of 1982 was registered against the four accused persons, namely, (1) Kailash Rai, (2) Ram Naresh Rai, (3) Sunil Rai and (4) Anil Rai, under Section 307 of the IPC and Section 27 of the Arms Act. Consequent upon the death of the injured, Suresh Mahto, Section 302 of the IPC was added in this case vide order dated 4.11.1982 and on the prayer of the Officer Incharge of Teghra Police Station (Phulwaria) the name of one accused, Anil Rai, son of Kailash Rai, was corrected as Sunil Rai, son of Kailash Rai vide order dated 4.11.1982. Consequent upon the death of the injured, Suresh Mahto, Section 302 of the IPC was added in this case vide order dated 4.11.1982 and on the prayer of the Officer Incharge of Teghra Police Station (Phulwaria) the name of one accused, Anil Rai, son of Kailash Rai, was corrected as Sunil Rai, son of Kailash Rai vide order dated 4.11.1982. On completion of investigation police submitted charge-sheet against all the four accused persons, namely, Kailash Rai, Ran Naresh Rai, Sunil Rai, son of Kailash Rai and Sunil Rai, son of Brahmdeo Rai, under Sections 302/307/34 of the Indian Penal Code and Section 27 of the Arms Act. After cognizance of the offence the case of all the four accused was committed to the Court of Sessions to stand the trial. The accused, Sunil Rai, son of Brahmdeo Rai and the accused, Sunil Rai, son of Kailash Rai, were charged under Section 27 of the Arms Act. All the four accused were charged under Section 302/34 of the IPC and the accused, Sunil Rai, son of Kailash Rai, was separately charged under Section 307 of the Indian Penal Code. During the course of trial the accused, Ram Naresh Rai, died and proceeding against him was dropped vide order dated 22.1.2000 and the trial proceeded against all the three accused. 4. In defence the appellants took a plea of innocence and false implication due to enmity. 5. At trial the prosecution examined altogether 11 witnesses to substantiate the charges against the accused persons. 6. On conclusion of the trial, the learned Additional Sessions Judge placed reliance on the evidence of PW 1, Siro Devi, PW 3, Binay Mahto, PW 5. Ram Naresh Mahto, PW 6, Dinesh Mahto, the alleged eye-witnesses to the occurrence coupled with medical and other circumstantial evidence available on the record and convicted the accused as mentioned above. 7. The learned counsel appearing for the appellants contended that there are serious infirmities in the ocular evidence given by the related witnesses and there is no corroboration from the independent evidence. He again contended that the prosecution failed to examine the Investigating Officer in this case and his non-examination has greatly prejudiced the accused-appellants. The trial Judge failed to appreciate properly the evidence on record and erroneously came to irresistible conclusion about the guilt of the appellants, hence, the impugned judgment of conviction is fit to be set aside. He again contended that the prosecution failed to examine the Investigating Officer in this case and his non-examination has greatly prejudiced the accused-appellants. The trial Judge failed to appreciate properly the evidence on record and erroneously came to irresistible conclusion about the guilt of the appellants, hence, the impugned judgment of conviction is fit to be set aside. On the other hand, learned counsel for the State supported the judgment under appeal and contended that no interference is required in the judgment and all the appeals are devoid of merit and are fit to be dismissed. 8. In order to appreciate the rival contentions of the parties, now I advert to evaluate the evidence on record. 9. As stated above, the prosecution examined altogether 11 witnesses. Out of them PW 1, Siro Devi, is the mother, PW 3 Binay Mahto, is the nephew, PW 5 Ram Naresh Mahto, is the brother and PW 6, Dinesh Mahto, the informant, is the brother of the deceased and they have claimed to be the eye-witnesses to the occurrence. PW 2, Madah Prasad is the then Officer incharge of Teghra Police Station. His evidence is that on 13.9.1982 while he was posted at Bagardih Convoy Post at about 3 a.m. he heard the sound of firing whereupon he went to the place of occurrence and noticed both the injured. He managed for their removal to the police station on rickshaw. PW 4 is Dr. Shashi Bhushan Prasad Singh who conducted autopsy on the dead body of the deceased, Suresh Mahto. PW 7, Jogendra Rai, is a formal witness. He has proved the formal FIR which is in the pen and signature of Majid Hussain, the then Officer Incharge of Phulwaria Police Station (Ext. No. 3). He has also proved the forwarding report on the formal FIR which is in the pen and signature of Prahlad Singh, the then ASI of Phulwaria Police Station (Ext. No. 2/1). PW 8 is Dr. Gulam Sharful Haque. He examined both the injured, Ram Naresh Mahto and Suresh Mahto (deceased). PW 9 is Ram Karan Choudhary. He has proved the seizure list which is in the pen and signature of Prahlad Singh, the then Officer Incharge of Phulwaria Police Station (Ext. No. 5). PW 10, Chamaru Mahto and PW 11, Singho Mahto, turned hostile and nothing material and could be elicited in their cross- examination. 10. PW 9 is Ram Karan Choudhary. He has proved the seizure list which is in the pen and signature of Prahlad Singh, the then Officer Incharge of Phulwaria Police Station (Ext. No. 5). PW 10, Chamaru Mahto and PW 11, Singho Mahto, turned hostile and nothing material and could be elicited in their cross- examination. 10. The evidence of PW 8, Dr. Gulam Sharful Haque is that on 13.9.1982 he was posted as Civil Assistant Surgeon in Sadar Hospital, Begusarai. On the same day at 6.05 a.m. he examined Ram Naresh Mahto and found the following injuries on his person : (i) Lacerated wound 2-1/2" x 1/2" scalp deed situated in the middle and top of head slightly deviated to right side. According to him the injury was simple in nature and was caused by hard and blunt substance. The age of injury was found within 6 hours at the time of examination of the injury of the injured. Ram Naresh Mahto. He proved the injury report (Ext. No. 4) His further evidence is that on the same day at 5.57 a.m. he examined Suresh Mahto and found the following injuries on his person : (i) One lacerated wound 1/3" in diameter with inverted margin deep into the skull which was the wound of entry. The/margin was burnt. (ii) Lacerated wound 1" x 1" deep into the face with everted margin which was the wound of exit situated in front of left ear pinna. The injury No. (i) was found situated on the right paraital bone 2" above the right ear pinna. According to him both the injuries on the person of Suresh Mahto were caused by one shot of fire arm of high valocity and were grievous in nature. The age of the injuries was found within six hours at the time of examination. He proved the injury report (Ext. No. 4/1). Learned counsel appearing for the appellants contended that PW 8, Dr. Gulam Sharful Haque, who examined the injuries of Ram Naresh Mahto, PW 5, found the injury on his person simple in nature caused by hard and blunt substance. His evidence is not consistent with the prosecution case, according to which the injured, Ram Naresh Mahto, had been fired at by pistol by the accused, Sunil Rai causing fire arm injury on his head. 11 The evidence of PW 4, Dr. His evidence is not consistent with the prosecution case, according to which the injured, Ram Naresh Mahto, had been fired at by pistol by the accused, Sunil Rai causing fire arm injury on his head. 11 The evidence of PW 4, Dr. Shashi Bhushan Prasad Singh is that on 13.9.1982 while he was posted as Civil Assistant Surgeon, Sadar Hospital, Begusarai, he held post mortem examination on the dead body of the deceased, Suresh Mahto and found the following ante mortem injuries on his person : (I) Fire arm wound 1" in diameter with inverted and burnt margin on the right paraital bone 2" above the right pinna. That was the wound of entrance. On further dissection there was haematoma in scalp and wound had passed to the right paraital bone transversing the whole brain matter in downward and out ward directions, damaged to the meninges and both cerebral haemeshere with the wound of exit on the left side of check, one inch in front of the left pinna. The margin of the exit was inverted measuring 1"x 3/4". On further dissection in the base of skull on left side and the left maxilla were also found fractured. There was blood and blood clot in skull cavity. In his opinion, the death was caused due to haemorrahage and shock produced by the firm arm. The time elapsed between death and post mortem examination held was founding between 4 to 12 hours. Further according to him the injuries found on the person of the deceased, Suresh Mahto, were sufficient to cause death in ordinary course of nature. He proved the post mortem report (Ext. No. 1). In cross-examination he has stated that the firing was from right side and the bullet had come out from the left side and he had not found any foreign substance in the wound. Thus, the medical evidence suggests that Suresh Mahto died of the fire arm injuries which is also consistent with the case of the prosecution. 12. PW 1 Siro Devi, PW 3 Binay Mahto, PW 5 Ram Naresh Mahto and PW 6 Dinesh Mahto, the informant are the material witnesses in this case on the point of the occurrence. Out of them PW 5, Ram Naresh Mahto is the injured witness. 12. PW 1 Siro Devi, PW 3 Binay Mahto, PW 5 Ram Naresh Mahto and PW 6 Dinesh Mahto, the informant are the material witnesses in this case on the point of the occurrence. Out of them PW 5, Ram Naresh Mahto is the injured witness. The evidence of PW 5, Ram Naresh Mahto, is that in the relevant night he along with his brother, Suresh Mahto was sleeping at the tea shop and Dinesh Mahto, PW 6 the informant alongwith his nephew, Binay Mahto, PW 3, was sleeping in the betel shop located in the north of the tea shop. At about 3 a.m. on hearing the sound of firing when he woken up, he spotted the accused, Sunil Rai, son of Brahmdeo Rai standing near the bed of his brother, Suresh Mahto. Suresh Mahto was lying unconscious in pool of blood on the ground. He also noticed that the accused, Sunil Rai, son of Brahmdeo Rai, was opening his pistol. He has further stated that he caught hold of the hand of the appellant, Sunil Rai, having a pistol and asked him the reason for committing the murder of his brother. At this, Sunil Rai, son of Kailash Rai, who was standing by his side fired at him on his head. The other two accused Kailash Rai and Ram Naresh Rai, were standing on the road. He has further stated that he identified all the four accused in the light of lantern burning at the shop and after sustaining fire arm injuries he fell down unconscious on the ground. In cross-examination at para 12 his evidence is that he has not raised any hulla and had only caught hold of the accused-appellant, Sunil Rai, son of Brahmdeo Rai with a pistol in his hand. He has further stated that the persons sleeping at the betel shop did not rush there to help him as all of them had fled away from there. His further evidence is that he was fired at from a distance of one hand in the standing position and at that time his no family member was present there. He has further stated that the persons sleeping at the betel shop did not rush there to help him as all of them had fled away from there. His further evidence is that he was fired at from a distance of one hand in the standing position and at that time his no family member was present there. The evidence of the informant, Dinesh Mahto, PW 6 is that in the relevant night he along with his nephew, Binay Mahto, was sleeping in the betel shop and on the sound of firing both of them had woke up and noticed the accused, Sunil Rai, son of Brahmdeo Rai standing by the side of Suresh Mahto and was opening his pistol. Suresh was lying in pool of blood there. His further evidence is that Ram Naresh Mahto, PW 5 caught hold of the hands of the accused, Sunil son of Brahmdeo Rai asking the reasons for committing the murder of his brother but in the mean time the accused, Sunil Rai, son of Kailash Rai, fired a shot on the back of head of Ram Naresh Mahto and he fell down injured on the ground. Other two accused, Ram Naresh Rai and Kailash Rai, were also standing on the road. He has further stated that he had identified all the four accused in the light of lantern burning on the shop. He along with his nephew, Binay Mahto raised hulla whereupon the witnesses, his mother, Khakhooran Mahto, Singho Mahto, Ram-sharen Mahto, Sagar Mahto and many others arrived there. His further evidence is that there after he took his both the injured brothers, Suresh Mahto and Naresh Mahto to the police station and lodged his fardbeyan (Ext No. 2) and was signed by him. Both the injured thereafter were removed to Begusarai Hospital for treatment. He has assigned the motive behind the occurrence by alleging that 2/3 days prior to the occurrence the accused, Ram Naresh Rai and Sunil Rai, son of Brahmdeo Rai had damaged his maithy crops as a result of which there had been hot altercation in between the deceased and accused and so they committed his murder. In cross-examination his evidence at para 31 is that on visit of the P.O. Darogaji had seen the lantern burning there and had aken away from there. In cross-examination his evidence at para 31 is that on visit of the P.O. Darogaji had seen the lantern burning there and had aken away from there. At para 37 his evidence is that the sufficient quantity of blood had fallen at the place where the injured witness, Ram Naresh Mahto, PW 5 was lying unconscious on the ground. PW 3, Binay Mahto is the nephew of the informant as well as the deceased. He has deposed at the line of the informant. PW 1, Siro Devi, is the mother of the informant and the deceased, Suresh Mahto. She has stated that on hearing the sound of 2 firing shots she came out of her house and spotted two persons fleeing away from there. She also noticed the accused Kailash Rai and Naresh standing there. She has further deposed that Suresh was lying dead on Choki and Naresh was lying injured and his scalp was found lacerated. Both of them had sustained fire arm injuries on their persons. She has further stated that all the four accused persons thereafter made good escape towards bamboo clump in the east. In cross-examination she has stated that in the relevant night both the injured, Suresh (deceased) and Naresh were sleeping at the tea shop and her son, Dinesh and grand son, Binay were sleeping in the betel shop situated adjacent to the tea shop. She has further stated that both the them Dinesh and Binay woke up on her hulla. 13. It is apparent from the above discussed evidence that the case of the prosecution rests on the testimony of PW 1, Siro Devi, PW 3, Binay Mahto, PW 5, Ram Naresh Mahto and PW 6, Dinesh Mahto, the informant who are closely related to each other. The evidence of mother, Siro Devi, PW/1, indicates that she first arrived at the place of occurrence and identified the fleeing appellants in the light of the lantern burning at the betel shop. On her hulla PW 3, Binay Mahto and PW 6, Dinesh Mahto, the informant woke up who were sleeping on the kathra of the betel shop. Her evidence further indicates that she spotted her son Suresh lying dead and nephew, Binay Mahto, lying injured there, but the evidence of PW 3, Binay Mahto and PW 6 Dinesh Mahto is that on their hulla, Siro Devi, PW 1, arrived at the place of occurrence. Her evidence further indicates that she spotted her son Suresh lying dead and nephew, Binay Mahto, lying injured there, but the evidence of PW 3, Binay Mahto and PW 6 Dinesh Mahto is that on their hulla, Siro Devi, PW 1, arrived at the place of occurrence. Further the evidence of the injured eye-witness, PW 5, Ram Naresh Mahto, gives a death blow to the testimony of these three witnesses wherein it has come that at the time of the occurrence his no family member of any other witness was present there. PW 5, Ram Naresh Mahto, has categorically stated that the persons sleeping at the betel shop had already fled away and his brother, Dinesh Mahto, the informant and PW 3, Binay Mahto, the nephew, were also alleged to have sleeping there. Thus, the evidence of PW 1, Siro Devi, PW 3, Binay Mahto and PW 6, Dinesh Mahto, the informant, sufficiently suggests that none of them had seen the occurrence and they falsely claimed to be the eye-witnesses to the incident. Further, it has come in the evidence of the informant, Dinesh Mahto, PW 6 that on his hulla besides his mother other witnesses also arrived there but none of them was examined by the prosecution. Again there is oral evidence that PW 5, Ram Naresh Mahto, was shot at fire arm and he sustained fire arm injuries but this sort of evidence remains uncorroborated by the medical evidence. The Doctor, Gulam Sharful Haque, PW 8 who examined him found the injury on his person simple in nature caused by hard and blunt substance which is not consistent with the prosecution case. As per the prosecution version the occurrence took placein the hour of the night and all the witnesses claimed to have identified the appellants in the light of the lantern besides blood stained kathra were seized by the Investigating Officer. The Investigating Officer failed to turn up in dock and objective finding by him could not be brought on the Record. Thus, the evidence of these four witnesses suffers from infirmities and discrepancies which cannot be ignored as minor one. In other words major contradictions have surfaced in their testimony. The Investigating Officer failed to turn up in dock and objective finding by him could not be brought on the Record. Thus, the evidence of these four witnesses suffers from infirmities and discrepancies which cannot be ignored as minor one. In other words major contradictions have surfaced in their testimony. The evidence of these witnesses including the injured PW 5, Ram Naresh Mahto, do not inspire confidence to hold the appellants guilty of the charges alleged against them and all the appellants are entitled to get the benefit of doubt. 14. In the result, there is merit in the three appeals and they are allowed. The order of conviction and sentence passed against all the three appellants are set aside and they are acquitted of all the charges. The appellant, Kailash Rai, son of Late Sheo Khelawan Rai (in Criminal Appeal No. 393 of 2000) and the appellant, Sunil Rai, son of Kailash Rai (in Criminal Appeal No. 401 of 2000) are on bail, so they are discharged from the liabilities of their executed bail bonds. The appellants, Sunil Rai, son of Brahmdeo Rai (in Criminal Appeal No. 419 of 2000) is in custody, so he is directed to be set at all liberty forthwith in this case if not wanted in any other case. Aftab Alam 15. I agree.