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2005 DIGILAW 1012 (PAT)

Ashok Rai v. State Of Bihar

2005-11-28

M.L.VISA

body2005
Judgment 1. This appeal is directed against the judgment and order dated 01.06.1992 passed by Vllth Additional Sessions Judge, Patna in Sessions Trial No. 30 of 1990 convicting and sentencing all the appellants to undergo rigorous imprisonment for a period of seven years under Secs. 307/149 of Indian Penal Code (In short " Indian Penal Code, 1860 "). Appellant Ashok Rai has been further convicted and sentenced to undergo rigorous imprisonment for two years u/s. 148 of Indian Penal Code, 1860 and other appellants have been convicted and sentenced to undergo rigorous imprisonment for one year each u/s. 147 of Indian Penal Code, 1860 . Sentences passed against the appellants have been ordered to run concurrently. 2. The case of prosecution, in short, is that on 15.01.1989 at about 7 a.m., informant Suresh Rdi (PW 3) was going to attend call of nature towards east of his house when in the way, all the appellants variously armed with lathi and bhala, surrounded him and with an intent to kill him started assaulting him. Appellant Ashok Rai, who was armed with bhala, gave bhala blows on the right leg and arm causing bleeding injures and when he fell down and started raising hulla, remaining appellants, who were armed with lathies, assaulted him with lathies. On hulla of informant, witnesses, namely, Harinandan Rai (PW 1) and Kisto Rai (PW 6) came there and rescued him. All the appellants fled away towards their house. During the occurrence, a sum of Rs. 160.00 fell down from the pocket of informant which was picked up by someone from the appellants. The reason of occurrences is said to be previous enmity and litigation between the parties. The informant was taken to Maner Government Hospital where his fardbeyan (Exhibit-2) was recorded by Sub-Inspector Janardan Rai (PW 5). A case against appellants except Jitan Rai (since dead) under Secs. 147, 148, 341, 307 of Indian Penal Code, 1860 was registered by drawing a formal first information report (Exhibit-3). Name of Jitan Rai figured in the further statement of informant recorded during investigation. After investigation, police submitted charge-sheet against all the appellants andJitan Rai. Cognitance of the case was taken and case was committed to the Court of Session where charges under Sections 148 and 307 read with sec. 149 of I PC against appellant Ashok Rai and charges under Secs. 147 and 307 read with sec. After investigation, police submitted charge-sheet against all the appellants andJitan Rai. Cognitance of the case was taken and case was committed to the Court of Session where charges under Sections 148 and 307 read with sec. 149 of I PC against appellant Ashok Rai and charges under Secs. 147 and 307 read with sec. 149 of I PC against remaining appellants were framed. After trial, all the appellants were found guilty and were convicted and sentenced, as indicated above. 3. The case of appellants before the Court below was that on the alleged time and day of occurrence, it was informant and his companions who assaulted appellants with lathies and bhala for which a criminal case was registered and in order to create defence, appellants have been implicated in this false case. Three witnesses on behalf of appellants were examined before the Court below. 4. In order to prove its case, prosecution has examined six witnesses. Suresh Rai (PW 3) is the informant. Bali Rai (PW 2), brother of informant is a tendered witness. Dr. Ajay Kumar (PW 4) is the doctor who had examined the informant. Janardan Rai (PW 5) is the Investigating Officer. Harendra Rai (PW 1) and Kisto Rai (PW 6) are said to be witnesses who had seen the occurrence. Suresh Rai (PW 3), the informant, in his evidence, has said that at the time of occurrence, he was going to attend the call of nature when in the way, he saw all the appellants and appellant Ashok Rai was armed with bhala and remaining appellants were armed with lathies. Appellants came near him and at the order of Jitan Rai, appellant Ashok Rai gave a bhala blow causing injury on his right hand and when he tried to run away, appellant Ashok Rai gave him a bhala blow on his right leg and he then fell down and other appellants, thereafter, started assaulting him with lathies. He raised hulla and receiving lathi injuries on his legs, shoulder, head and other places of body, he became unconscious. He raised hulla and receiving lathi injuries on his legs, shoulder, head and other places of body, he became unconscious. The occurrence was seen by Harinandan Rai (PW 5) and Kisto Rai (PW 6) and he regained consciousness in the hospital where his fardbeyan was recorded by police which was read over to him and finding it correct, he put his left thumb impression because of injury on his right hand, he was not in a position to put his signature. He has further said that there was enmity with appellants from before, therefore, he was assaulted. In para-3 of his evidence, he has said that at the time of occurrence, he had a sum of Rs. 160.00 which he had tied with his waist and during the occurrence, this money fell down and somebody among the appellants picked it up but he does not know who did it. In cross-examination, he has admitted that appellants Harihar Rai had lodged a criminal case for an occurrence of 01.12,1988 in which he and his brother Bali Rai (PW 2) were accused. In para-6, he has said that he does not know that for an occurrence of the time and day of this case, appellant Sankar Rai who is also called Rama Shankar had filed a criminal case in which he and his brother Bali Rai are accused. 5. Dr. Ajay Kumar (PW 4), in his evidence, has said that on 15.01.1989 at about 9.30 a.m. when he was posted at Primary Health Centre, Maner as Medical Officer, he examined the informant and found following injuries on his person : (1) Incised wound 1/2" x linear x 1/2" on dorsan of right forearm, (2) Incised wound 1/2" x linear x 1/2" on right leg, (3) Lacerated wound 1-1/2" x 1/4" x scalp deep on frontal bone area of head, (4) Tender swelling on left ankle joint, (5) Abrasion 1/4" x 1/4" on dorsan of right hand, (6) Tender swelling around left ankle joint, (7) Tender swelling around right ankle joint, (8) Tenderness with fluctuation over ribs on right side thorax-clinically fracture of one or more ribs. X-ray was advised. (9) Multiple bruises of different sizes all over the body, (10) Tender swelling around right shoulder joint and arm. X-ray was advised. (9) Multiple bruises of different sizes all over the body, (10) Tender swelling around right shoulder joint and arm. He has further said that injury No. (8) was grievous in nature and all injuries, in combined effect, were dangerous to life and injuries No. (1) and (2) were caused by sharp cutting weapon such as bhala and other injuries were caused by hard and blunt substance such as lathi and age of injuries was within twenty four hours. He has proved the injury report which is marked Exhibit-1. 6. Harinandan Rai (PW 1), in his evidence, has said that at the time of occurrence, he had gone to his field when he saw informant going to attend call of nature and at that time he saw that ten to eleven persons went near him out of whom he identified all the appellants except appellant Charan Rai and appellant Ashok Rai was armed with bhala and remaining appellants were armed with lathies and at the instigation of Jitan Rai, appellant Ashok Rai assaulted the informant with bhala on his hand and leg and informant, after receiving injury, tried to run away after raising hulla but after going some distance, he fell down and, thereafter, other appellants assaulted him with lathies. The appellants, thinking him dead, fled away. He has said that Kisto Rai (PW 6) is also an eye-witness to the occurrence and when he went near the informant, he found him unconscious and he was badly injured and was taken to hospital. In cross-examination, he has shown his ignorance about any criminal case against his brother and informant and numbered as Maner Police Station Case No. 227 of the year 1988 but in para-8 of his evidence, he has admitted that there was enmity between informant and appellants which is the cause of the occurrence. In cross-examination, he has shown his ignorance about any criminal case against his brother and informant and numbered as Maner Police Station Case No. 227 of the year 1988 but in para-8 of his evidence, he has admitted that there was enmity between informant and appellants which is the cause of the occurrence. Kisto Rai (PW 6) has said that at the time of occurrence, he was also going to attend call of nature and informant was ahead of him when all the appellants came from behind and appellant Ashok Rai was armed with bhala and remaining appellants were armed with lathies and at the instigation of Jitan Rai, appellant Ashok Rai gave a bhala blow on right hand of informant and when informant started running away, appellant Ashok Rai again gave a bhala blow on his right leg and informant fell down and remaining appellants assaulted him with lathies. He has said that when he and Harinandan Rai raised alarm, the appellants fled away and he and Harinandan Rai went near the informant and found him unconscious and in the meantime, villagers also assembled there and took the informant to Maner Hospital. In cross-examination, he has admitted that for an occurrence of the same day and time, appellant Rama Shanker has also filer criminal case in which he is one of the accused persons. 7. Janardan Rai (PW 5) is the Investigating Officer of this case. He has said that he had recorded the fardbeyan of informant at Maner Hospital and he has proved his fardbeyan which is marked Exhibit-2. He has also proved the formal First Information Report which is marked Exhibit-3 and has said that he took up the investigation of the case and after completing the investigation submitted charge-sheet. In cross-examination, he has admitted that neither he took the statement of any ferrale members of the family of informant nor any person having his land near the place of occurrence. 8. Appellants also examined three witnesses in this case. Jitan Rai (DW 2) (since dead), in his evidence, has said that on 15.01.1989, he had taken appellant Rama Shanker Yadav in injured condition to Danapur Hospital where in his presence, fardbeyan of Rama Shanker Yadav was recorded by police which was read over to him and he put his left thumb impression and he himself put his signature on that fardbeyan. He has proved this fardbeyan which is marked Exhibit-B. Suraj Rai (DW 3)in his evidence, has said that on the day of occurrence when he had gone to attend call of nature, he heard hulla from thte road and when he went there, he found Badan Yadav, Vijay Yadav, Kisto Yadav, Chandgovind Yadav, Harendra Yadav, Agindeo Yadav, Ganesh Yadav and Bali Yadav and out of them Badan Yadav was armed with bhala and remaining persons were armed with lathies and they all were assaulting appellant Rama Shanker Yadav causing injury below his left eye and he also received lathi injury. Dr. Radhakant Choudhary (DW 1) has said that on 15.01.1989, he was posted as Civil Assistant Surgeon, Danapur and on that day, he examined appellant Rama Shanker Yadav and found following injuries on his person : (1) One penetrating incised wound 1" x 1/4" x muscle deep below the left eye, (2) Difused swelling 2" x 1" below the injury No. (1), (3) Abrasion 1/2" x 1/2" below injury No. (2), (4) Sub conjunctival haemorrhage in the left side of eye with watery discharge, (5) Complain of pain in left eye. He has further said that all the aforesaid injuries were simple in nature except injury No. (4) for which opinion was reserved pending the observation and injury No. (1) was caused by sharp pointed weapon which may be bhala and other injuries were caused by hard and blunt substance and age of injuries was within six hours from the time of examination. He has proved the injury report which is marked Exhibit-A. Although in his evidence, DW 1 has not given the time of examination of appellant Rama Shanker Yadav but the injury report which he has proved and which is marked Exhibit-A mentions this time which is 11.30 a.m. on 15.01.1989. 9 The Court below, after taking into consideration the statement of DW 1 made in cross-examination that there were only three injuries that is injuries No. (1) to (3) on the person of injured Rama Shanker Yadav, has observed that as per the case of defence, there were eight persons who took part in the assault to Rama Shanker Yadav but the doctor found only three injuries, therefore, the evidence led on behalf of defence that appellant Rama Shanker Yadav was assaulted does not appear to be worthy of credence. The Court below has not applied uniform standard in evaluating the evidence on record. The case of prosecution is that from the side of appellants, who were twelve in number, assault to informant was made but then PW 4 Dr. Ajay Kumar who examined informant found only ten injuries on the person of informant out of which two were incised wounds, one was lacerated wound and remaining injuries included five tender swellings on different parts of body besides one abrasion and multiple bruises of different sizes over the body. Here the number of injuries Rai was not equal to the number of assailants but still the Court below has found this medical evidence supporting the case of prosecution but on the other hand because number of injuries found on the person of appellant Rama Shanker was not equal to the number of assailants so it did not believe the medical evidence in respect of injuries of appellant Rama Shanker Rai. Besides this, I find that the doctor who examined appellant Rama Shanker Rai although in his cross-examination has said that there were three injuries on the person of injured but in his examination-in-chief, he has said that apart from injuries No. (1) to (3), there was sub-conjunctival haemorrhage on the left side of eye and watery discharge and complain of pain on left eye. The injuries have been numbered as (4) and (5) and it cannot be said that these findings are not in the category of injuries. The age of injuries found on the person of appellant Rama Shanker Rai was within six hours from the time of examination which as per the injury report was 11.30 a.m. on 15.01.1989 which was the date of occurrence. So the time of injuries found on the person of appellant Rama Shanker Rai tallies with the time of occurrence but prosecution has not been able to explain these injuries. If once it is found that an accused also received injuries in the same transaction, it becomes the duty of prosecution to explain the circumstances in which he received the injuries which, in the present case, has not been explained by prosecution. Therefore, it suggests that prosecution has not come up with the true version of occurrence. If once it is found that an accused also received injuries in the same transaction, it becomes the duty of prosecution to explain the circumstances in which he received the injuries which, in the present case, has not been explained by prosecution. Therefore, it suggests that prosecution has not come up with the true version of occurrence. Besides this, I find that in this case, except informant, there is evidence of PW 1 Harinandan Rai and PW 6 Kisto Rai who have claimed themselves to be the eye-witnesses to the occurrence. Kisto Rai has admitted that he is an accused in the counter case filed by appellants. So he is an interested witness. The evidence of Harinandan Rai in para-6 of his cross-examination that he does not know whether appellants lodged Maner Police Station Case No. 227 of 1988 against his brother Indradeo Rai is suggesting that he might be concealing the truth. Besides this, in his evidence, as stated earlier, he has not named appellant Charan Rai among the assailants although in the fafdbeyan, he has been shown as a witness because fardbeyan bears his signature and informant, in his evidence, has said that police obtained the signature of this witness Harinandan Rai on the fardbeyan but again informant, in para-12 of his cross-examination, has contradicted this fact by saying that when his fardbeyan was recorded at that time neither Harinandan Rai nor Kisto Rai was present there and after recording his fardbeyan, the police left the place. The occurrence is said to have taken place on a broad day light in the village but not a single independent witness has come forward claiming to have seen the occurrence. Enmity between the parties is admitted. As stated above, injuries on person of appellant Rama Shanker Rai received during the same transaction have not been explained by prosecution, 10. Considering ail these facts, I find that case of prosecution does not stand proved beyond all reasonable doubts. . 11. In the result, this appeal is allowed. The judgment and order of Court below convicting and sentencing the appellants is hereby set aside. 12. Since the appellants are on bail, they are discharged from the liabilities of their bail bonds.