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2005 DIGILAW 362 (PAT)

Ram Chandra Rai v. State of Bihar

2005-03-24

body2005
M.L.VISA, J.:-Both the appeals have been heard together and are being disposed of by this common judgment because they arise out of the same judgment and order dated 29.09.2001 passed by Sessions Judge. Vaishali at Hajipur in Sessions Trial No. 294 of 1989 convicting and sentencing all the appellants to undergo imprisonment for life under Section 302/149 of Indian Penal Code (in short "IPC") and to pay a fine of Rs. 2,000/- each and in default to undergo further rigorous imprisonment for one year each. Half of the fine amount so realised from the convicts have been ordered to be paid to the son of deceased. 2. Case of prosecution, in short is that on 30.03.1988, informant Bahadur Rai (PW 9) alongwith his deceased brother Rajgir Rai was harvesting wheat crop In his field. At about 11 A M. Muni Lal Rai (PW 7) brought water from the Bathan of appellant Ramchandra Rai in a pot belonging to appellant Ramchandra Rai. In the meantime, appellant Horil Rai son of appellant Ramchandra Rai came there running and started abusing and assaulting Muni Lal Rai with fists and slaps. Informant and his deceased brother when asked him not to do so, he went back to his Bathan and, thereafter, he, armed with Saif, appellants Ramchandra Rai, Netu Rai, Laung Rai and Ramnath Rai, all armed with lathi came there and Horil Rai gave a Saif blow on the chest of Rajgir Rai who fell down and then other appellants started assaulting him with lathis. On hulla Lagandev Rai (PW 1), Kapil Rai (PW 2), Mahtab Rai (PW 3), Ram Bhajan Rai (PW 4) came there and appellants fled away towards their Bathan. When the informant was taking his brother to hospital on a cot and brought him on road, he found that his brother had already died and he then took the dead body of his brother to Chandpura Outpost where his Fard-e-bayan (Exhibit 2) was recorded and a case under Sections 147, 148, 149, 323, 307 and 302 of IPC was registered against the appellants and police, after investigation, submitted charge-sheet against them. Cognizance of the case was taken and the case was committed to the Court of Sessions where charges under Section 302/149 of IPC were framed against all the five appellants who denied the charges and were put on trial and after trial, they were found guilty and were convicted and sentenced, as indicated above. 3. The case of appellants, as it appears from the evidence of three witnesses examined on their behalf and from the trend of cross-examination of prosecution witnesses, is that on the day of occurrence, the cattle of informant went in the field of Ramchandra Rai and on objection being raised by appellant Ramchandra Rai, he was assaulted by informant and his men for which a criminal case was lodged and for this reason, the appellants have been falsely implicated in this case. 4. Altogether twelve witnesses on behalf of prosecution have been examined in this case. Bahadur Rai (PW 9) is the informant, Dr. Ram Gobind Prasad (PW 11) is the doctor who held post mortem examination on the dead body of deceased Rajgir Rai. Jitendra Prasad Singh• (PW 12) is a formal witness who has proved Farde-bayan (Exhibit-2), in the pen, of Assistant Sub-Inspector Lal Mahto, formal first information report (Exhibit-3) in the pen of Assistant Sub-Inspector Jai Nandan Singh and inquest report in the pen of Assistant Sub-Inspector Lal Mahto Sachita Nand Singh (PW 10) had simply taken the charge of investigation from B.K. Srivastava, the then Officer-in-charge of Desri Police Station on 27.05.1987• and had submitted charge-sheet in this case. Ashok Rai (PW 5) is a tendered witness. Ram Eqbal Rai (PW 8) has not supported the case of prosecution and has been declared hostile. 5. Lagandev Rai (PW 1), Kapil Rai (PW 2), Mahtab Rai .(PW 3), Ram Bhajan Rai (PW 4), Suresh Rai (PW 6) and Manki Rai (PW 7) are said to be eye witnesses to the occurrence. 6. Dr. Gobind Prasad (PW 11), in his evidence, has said that on 30.03.1988, he was posted as Civil Assistant Surgeon at Hajipur Sadar Hospital and on that day, he received dead body of deceased Rajgir Rai and on 31.03.1988, he held post mortem examination on the dead body and found the following ante mortem injuries:- (1) Incised wound 2"x1/2"xdeep to the chest cavity in the right side of chest in between first and second ribs. On dissection, chest and abdominal cavity was full of blood and blood clots. There were laceration and puncture of plural cavity in lung at two places and there was laceration of liver after piercing diaframs. According to him, injury was caused by a sharp piercing weapon which may be Bhala and death was due to shock and haemorrhage caused by the above injury which was sufficient to cause death in ordinary course of nature. He has proved his post mortem examination report which is marked Exhibit-1. His evidence establishes that death of deceased Rajgir Rai was homicidal. 7. Bahadur Rai (PW 9), the informant, in his evidence, has said that at the time of occurrence, he alongwith his brother Rajgir Rai, nephew Mani Rai (PW 7), and one labourer was harvesting the wheat crop in his field which he had taken on Batai and at that time, his nephew brought water from the Bathan of appellant Ramchandra Rai when appellant Horil Rai, came there and started assaulting his nephew and when his deceased brother asked him not to assault his son, an altercation between deceased and Horil Rai took place and, thereafter, Horil Rai went back to his house and again came armed with a Saif with other appellants Ramchandra Rai, Netu Rai, Laung Rai and Ramnath Rai armed with lathis. Thereafter, appellant Ramchandra Rai started assaulting the deceased with lathi on which appellant Netu ordered to kill him with Sa if and then Horil Rai gave a Saif blow on the right side of chest of deceased Rajgir Rai and all the appellants fled away. It is further said that while deceased was being taken to hospital, he died in the way and, thereafter, his dead body was taken to Chandpura Outpost where his Fard-e-bayan was recorded. It is further said that while deceased was being taken to hospital, he died in the way and, thereafter, his dead body was taken to Chandpura Outpost where his Fard-e-bayan was recorded. Mani Rai (PW7), nephew of informant, supporting the case of prosecution, has said that at the time of occurrence he, alongwith his deceased father, was harvesting wheat crop in his field when his father asked him to bring water and he then brought water from the residence of appellant Ramchandra Rai in a pot which also belonged to appellant Ramchandra Rai and, thereafter, appellant Horil Rai, who is son of appellant Ramchandra Rai, came there abusing him and started assaulting him with kicks and fists and when his father raised protest, Horil Rai went back to his house and again came armed with a Saif alongwith other appellants armed with lathis who started assaulting his father with lathis on which appellant Netu Rai asked them to kill him with Saif and then appellant Horil Rai gave a Saif blow on the chest of his father. He has further said that his father was being taken to hospital for treatment but he died in the way. Lagandev Rai (PW 1), Kapil Rai (PW 2), Mahtab Rai (PW 3), Ram Bhajan Rai (PW 4) and Suresh Rai (PW 6) have also supported the case of prosecution and have said that when Manki Rai brought water from the house of appellant Ramchandra Rai, appellant Horil Rai started assaulting him and when deceased raised objection, appellant Horil Rai went back to his house and again came armed with Saif with other appellants armed with lathis and, thereafter, when appellants started assaulting the deceased with lathi, appellant Netu gave order of killing the deceased on which appellant Horil gave Bhala blow on the chest of deceased. 8. PW 1 has admitted that PW 2 happens to be his cousin and appellant Ramchandra Rai had lodged a counter case in which informant, PWs 2 and 6 are accused. 8. PW 1 has admitted that PW 2 happens to be his cousin and appellant Ramchandra Rai had lodged a counter case in which informant, PWs 2 and 6 are accused. It is true that in para-4 of his cross-examination, he has stated that when he reached the place of occurrence, he found deceased was lying down and was lying injured and was demanding water but then in his earlier part of evidence, he has clearly stated that when occurrence started he was in his field which is situate about five Laggis south west from the field of informant. In para-4, he has said that when appellants fled away from the place of occurrence only then he went to the place of occurrence when he found the deceased lying injured and demanding water. I, therefore, find that there is no contradiction in his evidence on the point of his being an eye witness to the occurrence. PW.2 has admitted that he happens to be cousin of informant. Kapil Rai (PW 2), in para-4 of his cross-examination, has said that when he went to the place of occurrence, he found appellants, after assaulting the deceased were running away and he found deceased was lying injured and he was among the persons who took injured with them for his treatment. In para-1 of his evidence, he has .said that when he was taking the injured to Hajipur hospital, injured died in the way and he, therefore, brought the dead body of deceased to Police Station where inquest report was prepared on which he put his left thump impression. In cross-examination, he has further said that when he went to place of occurrence. he saw the appellants about five Laggis west from the deceased who were running away and he saw injury on the right side of chest of deceased and also found blood fallen on land. In para-1 of his evidence, this witness has said that at the time of occurrence. he saw the appellants about five Laggis west from the deceased who were running away and he saw injury on the right side of chest of deceased and also found blood fallen on land. In para-1 of his evidence, this witness has said that at the time of occurrence. he was at his Bathan of his house and from there he saw deceased harvesting his wheat crop in his field and Mani Rai bringing water from the Bathan of appellant Ramchandra Rai in a pot and, thereafter, he saw the further part of occurrence such as assault by Horil Rai with fists and slaps to Mani Rai and, thereafter his going back to his house and again coming armed with Saif with other appellants and, thereafter, Netu giving order of killing the deceased with Saif etc. So his evidence suggests that he first saw the occurrence from his Bathan. In cross-examination, he has said that there is a land of one Ram Narayan between his house and the place of occurrence. His evidence clearly suggests that he first saw the occurrence from his Bathan and immediately thereafter, he went to the place of occurrence and in this way, I find no contradiction in his evidence. It is true that Mahtab Rai (PW 3), in his evidence. has first said that Horil Rai gave a Saif blow on the head of deceased but then in para-4 of his cross-examination, he has clearly said that he and others brought the deceased on a cot and he had seen the body of deceased and he found one bleeding injury on right side of his chest and besides this, he did not find any other injury on the body of deceased. His statement shows that it was an error on his part in describing the body of deceased where injury was inflicted while he himself has corrected in his cross-examination. Ram, Bhajan Rai (PW 4) and Suresh Rai (PW 6), as stated earlier, have also supported the case of prosecution. 9. The learned counsel appearing on behalf of appellants has argued that Investigating Officer of this case has not been examined which has caused prejudice to the appellants and, therefore, the case of prosecution fails on this ground alone. Ram, Bhajan Rai (PW 4) and Suresh Rai (PW 6), as stated earlier, have also supported the case of prosecution. 9. The learned counsel appearing on behalf of appellants has argued that Investigating Officer of this case has not been examined which has caused prejudice to the appellants and, therefore, the case of prosecution fails on this ground alone. From the evidence of prosecution witnesses who have deposed on the point of occurrence, I find that attention of only PWs 4 and 6 was drawn whether before Investigating Officer, they had given statement that when Mani Rai brought water from the house of appellant Ramchandra Rai, appellant Horil Rai came there and started assaulting him and, thereafter, he went to his house and again came back armed with Saif with other appellants armed with lathi and appellants started assaulting the deceased with lathi on which appellant Netu Rai ordered for assaulting with his Saif and then appellant Hori Rai gave a Saif blow on the chest of deceased. The defence has also drawn the attention of PW 6 whether before police, he has said that when he went running to the place of occurrence, he heard from people present there saying that appellant Horii had assaulted the deceased. Besides this, no attention of any other prosecution witness has been drawn towards any contradiction in his evidence or earlier statement by (sic) before Investigating Officer. In the case of Behari Prasad and Others Vs. State of Bihar, 1996 Supreme Court Cases (Cri) 271, the Supreme Court held as follows:- "In the facts of the case, it appears to us that the involvement of the accused in committing the murder has been clearly established by the evidences of the eye witnesses. Such evidences are in conformity with the case made out in FIR and also with the medical evidence. Hence, for non-examination of Investigating Officer, the prosecution case should not fail. We may also indicate here that it will not be correct to contend that if an Investigating Officer is not examined in a case, such case should fall on the ground that the accused were deprived of the opportunity to effectively cross-examine the witnesses for the prosecution to bring out contradictions in their statements before the police. We may also indicate here that it will not be correct to contend that if an Investigating Officer is not examined in a case, such case should fall on the ground that the accused were deprived of the opportunity to effectively cross-examine the witnesses for the prosecution to bring out contradictions in their statements before the police. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal strait-jacket formula should be laid down that non-examination of Investigating Officer per se vitiates a criminal trial. 10. Again in the case of Bahadur Naik Vs. State of Bihar, 2000 Supreme Court Cases (Cri) 1186, the Supreme Court has held that when no material contradiction in the case of the prosecution was brought on record, the non-examination of Investigating Officer as a witness was of no consequence. It also took note of the fact that it was not shown what prejudice has been caused to the appellants for such non-examination. In the present case also, as stated above, except PWs 4 and 6, the defence did not even dreaw attention of any witness towards any contradiction in his evidence and his previous statement. If the evidence of PWs 4 and 6 is not considered for non-examination of Investigating Officer even then there remains the evidence of PWs 1, 2, 3, 7 and 9 who have supported the case of prosecution. 11. The next argument raised on behalf of appellants is that' the prosecution has not explained the injury which was found on the person of appellant Ramchandra Rai. The case of appellants is that on the day of occurrence when appellant Ramchandra Rai was looking after his field where he had grown Palwal, the cattle of informant entered his field and started grazing the crop and when he wanted to remove the cattle from his field, informant, at the order of PW 2, gave a Saif blow on the appellant Ramchandra Rai. Three witnesses on behalf of defence have been examined to support the defence case who are Mahendra Rai (DW 1), Chandradeep Rai (DW 2) and Dr. Ram Gobind Prasad (DW 3). Three witnesses on behalf of defence have been examined to support the defence case who are Mahendra Rai (DW 1), Chandradeep Rai (DW 2) and Dr. Ram Gobind Prasad (DW 3). D Ws 1 and 2 have said that when appellant Ramchandra Rai was in his field, a cattle of informant entered his field and when appellant Ramchandra Rai wanted to remove the cattle from his field, informant, at the order of Kapil Rai, gave a Sad blow on the abdomen of appellant Ramchandra Rai, Chandradeep Rai (DW 2) has further said that Suresh (PW 6) and Ram Pravesh assaulted appellant Ramchandra Rai with lathis. Dr. Ram Gobind Prasad (DW 3), in his evidence, has said that on 30.03.1988, he was posted as Civil Surgeon, Hajipur hospital and on that day at 7.15 PM, he examined appellant Ramchandra Rai and found the following injuries on his person:- (1) Incised wound 1/2"x1/2"x deep abdominal cavity on the right side of abdomen below the coastal margin. (2) Reddish sharp mark 2"x1" on the left thigh. (3) Complain of pain all over the body. 12. In his opinion injury No. (1) was caused by sharp cutting weapon which may be Bhala and it was grievous in 1ature and dangerous to life whereas injures No.2 and 3 were simple in nature and were caused by hard and blunt substance. About injury No. (1), he first said that opinion with regard to nature of this injury was kept reserved and thereafter he has said that this injury was grievous in nature. He has proved the injury certificate which is marked Exhibit-C. In cross-examination, he has said that nature of injury No. (1) was not mentioned in his report. Although the evidence of DW 3 does not clearly establishes that Ramchandra Rai received grievous injury because DW 3, in his cross-examination, has clearly stated that in his report, he has not mentioned the nature of injury no. (1) which, in his evidence, has been described by him as grievous in nature. For the sake of argument, if it is assumed that injury No. (1) was grievous in nature even then its non-explanation by prosecution will not be a ground for discarding the entire case of prosecution if it is found that the evidence led by prosecution is clear, cogent and trustworthy. For the sake of argument, if it is assumed that injury No. (1) was grievous in nature even then its non-explanation by prosecution will not be a ground for discarding the entire case of prosecution if it is found that the evidence led by prosecution is clear, cogent and trustworthy. This has now been finally settled by the Supreme Court and• reliance can be placed on decisions in the cases of Vijayee Singh Vs. State of Uttar Pradesh (1990) 3 SCC 190 and Rajendra Singh and Others Vs. State of Bihar (2000)4 SCC 298 . 13. In the present case, I find that so far evidence of informant, P Ws 1, 2, 3 and 7 is concerned, they have fully supported the case of prosecution and their evidence appears to be quite reliable and trustworthy and I find no reason to des-believe them on the point that appellant Horil Rai gave a Saif blow on the chest of deceased resulting in his death. 14. In this case, all the appellants have been found guilty and have been convicted and sentenced to undergo imprisonment for life. It is the own case of prosecution that a petty matter of bringing water by PW 7 from the Bathan of appellant Ramchandra Rai which caused irritation to his son, appellant Horil Rai who abused and started assaulting Mani Rai (PW 7) and, thereafter, he went to his house and brought Saif and gave a Saif blow on the chest of deceased. PWs 1, 2 and 3 have stated that first of all, appellant Ramchandra Rai assaulted the deceased with lathi. PWs 1 and 2 have said that he assaulted the deceased on leg whereas PW 3 is silent on which part Ramchandra Rai assaulted the deceased. PW 4 has said that appellant Ramchandra, Rai first assaulted the deceased with lathi whereas Mani Rai (PW 7), son of deceased has said that all appellants started assaulting his father with lathi and informant has said that appellant Ramchandra Rai started assaulting the deceased with lathi. The evidence of Dr. Ram Gobind Prasad (PW.11) who held autopsy on the dead body of deceased shows that he did not find any injury except an incised wound on the chest. The evidence of Dr. Ram Gobind Prasad (PW.11) who held autopsy on the dead body of deceased shows that he did not find any injury except an incised wound on the chest. I further find that prosecution witnesses, in their evidence, have stated that when deceased was assaulted by lathis, appellant Netu Rai gave order for assaulting him with Saifo In Fard-e-bayan, informant simply stated that when Mani Rai brought water from the Bathan of appellant Ramchandra Rai, appellant Horil Rai came and abused him and started assaulting him with fists and slaps and on protest, Horil Rai went back to his Bathan and from their he, alongwith other appellants, came there and gave a Suit blow on the chest of deceased and when his father fell down, other appellants started assaulting him with lathis. In Fard-e-bayan, it is not stated that appellant Netu Rai ordered for assaulting the deceased with Saif on which appellant Horil Rai gave a Saif blow on deceased. So, it appears that the story that appellant Netu Rai gave order to assault the deceased with Saif has been introduced during trial because, as stated above, it is not mentioned in Fard-e-bayan which is the earliest version of occurrence. As stated above, there is no injury except the chest injury on the body of deceased which makes the case of prosecution doubtful that other appellants also assaulted the deceased with lathi. It appears that in order to implicate other appellants, this is an exaggeration in the evidence that they also assaulted deceased with lathis but so far case of appellant Horil Rai is concerned, all the prosecution witnesses have categorically stated that he gave Saif blow on the chest of deceased which ultimately resulted in his death. Their evidence stands corroborated by medical evidence and there is nothing in their evidence to disbelieve them. Appellant Horil Rai alongwith other appellants has been found guilty and has been convicted and sentenced under Section 302/149 of I.P.C. Admittedly, the occurrence took place on a very trivial issue of taking water from the Bathan of Ramchandra Rai. It has also come in evidence that when appellant Horil Rai started assaulting Mani Rai with fists and slaps, deceased protested and, thereafter, Horil Rai went back to his Bathan and brought a Bait and gave one Saif blow on the chest of deceased. It has also come in evidence that when appellant Horil Rai started assaulting Mani Rai with fists and slaps, deceased protested and, thereafter, Horil Rai went back to his Bathan and brought a Bait and gave one Saif blow on the chest of deceased. This clearly suggests that at the spur of moment, appellant Horil Rai gave a single Bait blow on the chest of deceased. From the materials on record, I find that the case of appellant Horil Rai falls within the purview of Section 304, Part II of IPC. So far appellants Ramchandra Rai, Netu Rai, Laung Rai and Ram Nath Rai are concerned, I find that prosecution has not been able to prove charge against them. These appellants are, therefore, held not guilty and they are acquitted. As they are on bail, they are discharged from the liabilities of their bail bonds. 15. So far appellant Horil Rai is concerned, he is held guilty under Section 304, Part II of IPC. His sentence for life imprisonment and to pay a fine of Rs.2,000/- is reduced to a sentence of rigorous imprisonment for five years. 16. In the result, Criminal Appeal No.525 of 2001 is allowed and Criminal Appeal No. 556 of 2001 is dismissed with above modification in sentence.