Research › Search › Judgment

Patna High Court · body

2004 DIGILAW 718 (PAT)

Kamta Rai v. Lalita Rai,State Of Bihar

2004-07-20

R.N.PRASAD, RAJENDRA PRASAD

body2004
Judgment R.N.Prasad, J. 1. Both the appeals have been filed against the judgment and order dated 2.2.1993 passed by 9th Additional Sessions Judge, Sasaram in Sessions Trial No. 223 of 1981/25 of 1990 whereby the appellant of Cr. Appeal No. 51 of 1993 has been convicted for the offence u/s. 302/149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. He has further been convicted for the offence u/s. 27 of the Arms Act and sentenced to undergo rigorous imprisonment for two years. The appellant of Cr. appeal No. 119 of 1993 has been convicted for the offence u/s. 302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. He has further been convicted for the offence u/s. 27 of the Arms Act and sentenced to undergo rigorous imprisonment for two years. 2. One Uma Shankar is informant in the case. His fardbeyan was recorded on 1.6.1979 at about 5.30 A.M. at Kargahar Police Station. The informant in his fardbeyan stated that his brother Rama Shankar Roy was coming from the house of Bhikhari Sah. When he reached near the house of Kamta Roy, Lalita Roy questioned who was coming. His brother disclosed his name, Lalita Roy came near him with a gun and started abusing. In the meantime he and his brother Ram Charitar Roy arrived here. His brother, Ram Charitar Roy, made a protest and stated that he was not identifying his brother even in a moon lit night on which Kamta Roy ordered to kill. Lalita Roy fired from his gun causing injury to his brother, Ram Charitar Roy and he died. Lalita Roy, also sustained gun shot injury. On alarm raised the villagers came and the accused persons ran away towards their house. The motive of the occurrence was that there was enmity with the accused persons from before. 3. On the aforesaid fardbeyan a formal first information report, Ext. 3, was registered and investigation was taken up. On completion of the investigation chargesheet was submitted against eight persons. On receipt of the chargesheet cognizance was taken and the case was committed to the court of sessions for trial. The trial court acquitted six persons however, convicted the appellants as indicated above. 4. The defence of the appellants was that in the night of the occurrence dacoits had come in the village and opened fire. On receipt of the chargesheet cognizance was taken and the case was committed to the court of sessions for trial. The trial court acquitted six persons however, convicted the appellants as indicated above. 4. The defence of the appellants was that in the night of the occurrence dacoits had come in the village and opened fire. The villagers also opened fire from the roof of their house in which Ram Charitar Roy died and the appellants were falsely implicated in the case out of enmity. 5. The prosecution in support of its case examined nine witnesses out of which RW. 1 proved signature of the officer incharge, who recorded the formal first information report; P.W. 5 proved seizure list, Ext. 2, P.W. 6 proved signature of Kailash Roy; RW. 8 is investigating officer and P.W. 9 has proved the postmortem report; P.W. 2, P.W. 3 and P.W. 7 claimed to be eye witnesses to the occurrence; P.W. 4 is informant and also claimed to be an eye witness to the occurrence. 6. The death of Ram Charitar Roy is not in dispute. The dispute is with regard to participation of the appellants in the occurrence and also manner of occurrence. According to the defence no occurrence took place in the manner as alleged by the prosecution rather the dacoits had arrived in the village and there was firing from both sides in which Ram Charitar Roy was killed and they were falsely implicated in the case out of enmity. P.W. 2 and P.W. 4 are brothers of the deceased and P.W. 7 is mother of the deceased. The occurrence took place in front of the house of appellant, Kamta Roy. The house of the informant, P.W. 4, is at a distance of 400 yards from the place of occurrence. 7. P.W. 4 is informant in the case. In the fardbeyan he stated that when his brother Rama Shankar Roy, who was coming from the house of Bhikhari Sah, reached the place of occurrence appellant Lalita Roy started abusing his brother, P.W. 2. He and his brother Charitar Roy also came there and Charitar Roy protested on which Lalita Roy fired causing his death. In the evidence the witness stated that at the relevant time he was at the door of the house of Hari Narain Roy. He heard sound of firing near the house of Kamta Roy. He and his brother Charitar Roy also came there and Charitar Roy protested on which Lalita Roy fired causing his death. In the evidence the witness stated that at the relevant time he was at the door of the house of Hari Narain Roy. He heard sound of firing near the house of Kamta Roy. He saw from the door of Hari Narain Roy that appellant Lalita Roy fired from his gun causing injury to his brother, Ram Charitar Roy, who fell down on the ground. He named eight persons in his evidence including the appellants as participants in the occurrence. Lalita Roy fired thrice and his brother, Ram Shankar Roy, also sustained firearms injury. He went to the police station at about 4 A.M. and there he gave fardbeyan and put his signature on the fardbeyan. He came at the place of occurrence alongwith the police and showed the place of occurrence to the police. The dead body was sent for postmortem. At the place of occurrence Ram Shankar Roy (accused) was not present. In cross examination the witness stated that he saw the occurrence from the house of Hari Narain Roy. The attention of the witness was drawn to the statement made before the police. He stated that he & his brother, P.W. 2, were not accused in Shiv Sagar P.S. Case No. 9(11)/78. No person of the village came at the place of occurrence. His attention was also drawn to the statement made before the police that he did not name any other person except the appellants in the fardbeyan which he denied. Suggestion was also given to the witness that in the night of the occurrence dacoits had come and there was firing from both sides and his brother was in the group of dacoits which he denied. 8. P.W. 2 is brother of the deceased. His evidence is that he was coming from the house of Bikhari Sah and when he reached near the house of Lalita Roy, he accousted him. He was armed with gun. In the meantime his. brother, Ram Charitar Roy came and made a protest on which Kamta Roy ordered to kill and Lalita Roy fired from his gun which hit his brother, Ram Charitar Roy. He fell down and died. Firing was made when his brother, Ram Charitar Roy, tried to run away. Lalita Roys firing also hit his leg. In the meantime his. brother, Ram Charitar Roy came and made a protest on which Kamta Roy ordered to kill and Lalita Roy fired from his gun which hit his brother, Ram Charitar Roy. He fell down and died. Firing was made when his brother, Ram Charitar Roy, tried to run away. Lalita Roys firing also hit his leg. Other persons did not assault him. In cross examination the witness stated that RW. 7 is his mother. The deceased, Ram Charitar Roy, was not married. His statement was recorded by the police on 2.6.1979. The occurrence took place near the house of Kamta Roy. The house of Hari Narain Roy is at a distance of 200 yards from the place of occurrence. The appellants, Kamta Roy and Lalita Roy are own brothers and they are residing in the same house. He admitted that he was accused in Shiv Sagar RS. Case No. 9(11)/78 and he was in jail in the said case. His brother Ram Charitar Roy, the deceased, was an accused in a case u/s. 396 of the Indian Penal Code. The house of Kamta Roy is at a distance of 400-500 yards from his house. The witness categorically stated that at the time of occurrence except Ram Charitar Roy no other person was there. He also stated that no one had seen the occurrence except him. He did not identify the accused persons in the light of the lantern burning in the Dalan of Lalita Roy. His attention was drawn to the statement made before the police. Suggestion was also given to the witness that Ram Charitar Roy, the deceased, was a veteran dacoit and he was killed while he was trying to commit dacoity in the village which he denied. 9. RW. 3 also claim to be an eye witness to the occurrence. At the relevant time after attending call of nature he and Charitar Roy were on the well of Hari Narain Roy which is at a distance of 150 yards from the place of occurrence. Charitar Roy, the deceased, went near the house of the appellant, Kamta Roy, and he ramained at the well. It was a moon-lit night. From there he saw Kamta Roy with Lathi and Lalita Roy with a double barrel gun. Lalita Roy fired which hit Charitar Roy and he fell down. Charitar Roy, the deceased, went near the house of the appellant, Kamta Roy, and he ramained at the well. It was a moon-lit night. From there he saw Kamta Roy with Lathi and Lalita Roy with a double barrel gun. Lalita Roy fired which hit Charitar Roy and he fell down. In cross examination the witness stated that Rama Shankar Roy, RW. 2, is a witness to the occurrence. Uma Shankar Roy is informant in the case. There are three houses in between the house of Hari Narain Roy and Kamta Roy. He did not hear sound of firing made by the dacoits in the night of the occurrence. His attention was drawn to the statement made before the police. Suggestion was given that he has falsely deposed which he denied. 10. RW. 7 is mother of the deceased. At the relevant time she was at her house. Her evidence is that on hearing hullah she went to the house of Jai Govind Lal and saw that on the order of the appellant, Kamta Roy; appellant Lalita Roy fired which hit Charitar Roy. Kamta Roy had also a single barrel gun. She identified six more persons with country made pistols. Kamta Roy fired causing injury to his son Rama Shankar Roy, RW. 2, on the leg. In cross examination the witness stated that she heard sound of firing at her house and then she went to the house of Jai Govind Lal. Her attention was also drawn to the statement made before the police. 11. P.W. 8 is investigating officer. He proved the first information report, Ext. 3, inquest report, Ext. 4. He inspected the place of occurrence and gave a vivid picture of the place of occurrence. The place of occurrence is a lane infront of the house of Kamta Roy. He found the dead body of Charitar Roy and also found blood at the place of occurrence. He seized the blood and prepared seizure list, Ext. 2. He found marks of pillet on the wall of the house of Kamta Roy. The house of the informant is at a distance of 400 yards from the place of occurrence. The deceased was a criminal. No means of identification was shown to him. He seized the blood and prepared seizure list, Ext. 2. He found marks of pillet on the wall of the house of Kamta Roy. The house of the informant is at a distance of 400 yards from the place of occurrence. The deceased was a criminal. No means of identification was shown to him. The witness P.W. 3 did not say before him that he and Charitar Roy after attending the call of nature were at the well of Hari Narain Roy at the relevant time. He also did not say that Charitar Roy went to the house of appellant Kamta Roy and he remained there. The witness did not claim to have identified any other accused persons except Lalita Roy at the time of occurrence. He also did not say before him that Lalita Roy had a double barrel gun in his hand. RW. 7 did not say before him that appellant, Kamta Roy, was armed with a gun and had fired which hit her son, P.W. 2. 12. The defence has also examined three witnesses in support of its case. All the three defence witnesses have stated that in the relevant night dacoits had come and firing was made from the side of the dacoits and from the side of the villagers in which Charitar Roy was killed. Because of timely action taken by the villagers the dacoits could not be able to commit dacoity. 13. From the discussion of the evidence of the witnesses and the materials available on the record this much is obvious that occurrence took place in the night. Eight persons were put on trial. In the fardbeyan only two persons were named as accused. However, during investigation name of six more accused persons were added but they were acquitted. In the fardbeyan the informant stated that while his brother, RW. 2, was coming from the house of Bhikhari Sah and reached near the house of appellant Kamta Roy, the appellant Lalita Roy accousted him and started abusing. In the meantime he and his brother, Charitar Roy, arrived there. Charitar Roy made a protest against abusing on which Lalita Roy fired causing death of Charitar Roy. In the evidence the informant, RW. 4, stated that he had seen the occurrence from the house of Hari Narain Roy. RW. In the meantime he and his brother, Charitar Roy, arrived there. Charitar Roy made a protest against abusing on which Lalita Roy fired causing death of Charitar Roy. In the evidence the informant, RW. 4, stated that he had seen the occurrence from the house of Hari Narain Roy. RW. 8, investigating officer, has stated that the house of Hari Narain Roy is at a distance of 150 yards from the place of occurrence. The informant, P.W. 4, in his evidence named six other persons including Rama Shankar Roy son of Ram Deo Roy of his village as participants in the occurrence but in cross examination the witness stated that accused Rama Shankar Roy was not at the place of occurrence. The witness also stated that P.W. 2 was neither accused in Shiv Sagar PS. Case No. 9(11)/78 nor he was in jail in the said case. He also stated in his evidence that no person of the village came at the place of occurrence on hearing sound of firing. Suggestion was also given that at the relevant night dacoits had come and firing was made from the side of the dacoits and the villagers and his brother was one of the members of the dacoits and he was killed in the said occurrence which he denied, P.W. 4 stated that firing of Lalita Roy also hit his brother, P.W. 2 but no injury report has been brought on the record, P.W. 7 stated that firing was made by Kamta Roy which hit P.W. 2 which is inconsistent with the prosecution case and the evidence of P.W. 2 as stated above. P.W. 2 stated in his evidence that he was accused in Shiv Sagar P.S. Case No. 9(11)/78 in which he was in jail. The deceased, Charitar Roy, was also an F.I.R. named accused in a case u/s. 396 of the Indian Penal Code. The witness categoricaly stated in his cross examination that except his brother, Charitar Roy, no other person had come at the place of occurrence and no one had seen the occurrence except him. The deceased, Charitar Roy, was also an F.I.R. named accused in a case u/s. 396 of the Indian Penal Code. The witness categoricaly stated in his cross examination that except his brother, Charitar Roy, no other person had come at the place of occurrence and no one had seen the occurrence except him. Suggestion was also given that no occurrence took place in the manner as alleged rather dacoits had come and from both sides firing was made and in the firing Charitar Roy was killed which he denied, P.W. 3 claimed to have seen the occurrence from the well of Hari Narain Roy which is at a distance of 150 yards. He named only two persons i.e. the appellants, in his evidence. He also stated in his evidence that there were three houses between the house of Kamta Roy and the house of Hari Narain Roy, P.W. 8 stated in his evidence that the witness P.W. 3 did not say before him that at the relevant time he and Charitar Roy were at the well of Hari Narain Roy and he had seen the occurrence from the well of Hari Narain Roy. He did not name any other accused person except appellant, Lalita Roy before him, nor he stated before him that appellant, Lalita Roy, was armed with a double barrel gun, P.W. 7 is mother of the deceased. She at the relevant time was at her house which is at a distance of 400 yards from the place of occurrence. She claimed to be an eye witness to the occurrence but in cross examination the witness stated that Kamta Roy fired causing injury to P.W. 2, which is inconsistent with the case of the prosecution. Moreover, the witness stated that she heard the sound of firing at her house and thereafter she went to the house of Jai Gobind Lal and saw the occurrence. In the circumstances, it appears that she was not an eye witness to the occurrence as her house is at a disance of 400 yards from the place of occurrence and she heard the sound of firing at her house. 14. Thus, it is evident from the critical examination of the evidence of the prosecution witnesses that their evidence is inconsistent with the prosecution case and also inconsistant with one another on material points. 14. Thus, it is evident from the critical examination of the evidence of the prosecution witnesses that their evidence is inconsistent with the prosecution case and also inconsistant with one another on material points. Moreover, suggestion was given to the witnesses that at the relevant night dacoits had come and there was firing from the side of the dacoits and the villagers. The deceased was one of the members of the dacoits and in the said firing he was killed which the witnesses have denied but the prosecution witnesses have stated that the deceased was an F.I.R. named accused in a case u/s. 396 of the Indian Penal Code. P.W. 8, the investigating officer, also stated that the deceased was a criminal. Moreover, no independent witness came to support the prosecution case. 15. Thus, on consideration as discussed above we find that the prosecution has failed to establish its case beyond all reasonable doubts and as such both the appeals are allowed. The judgment and order of conviction and sentence of the trial court is set aside. Appellant Kamta Rai of Cr. Appeal No. 51 of 1993 is on bail. He is discharged from the liability of his bail bond. Appellant Lalita Rai of Cr. Appeal No. 119 of 1993 is in jail. He is directed to be released forthwith if not required in any other case. Rajendra Prasad, J. 16 I agree.