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2005 DIGILAW 785 (PAT)

Ram Naresh Ray v. State of Bihar

2005-08-31

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JUDGMENT REKHA KUMARI, J 1. Both the appeals arise out of the same judgment passed by Sri Mohammad Shamim, 3rd Addl. Sessions Judge, East Champaran at Motihari in S.Tr.No. 38/94 and as such, they have been heard together and are being disposed of by this common order. 2. The appellants faced trial for the commission of offence punishable under Section 302/34 of the Indian Penal Code and section 27 of the Arms Act. The learned Trial court found both the abovenamed appellants guilty under Section 302/34 I.P.C. and convicted them thereunder and sentenced both of them to undergo imprisonment for life. The appellant Jagat Sah has further been convicted under Section 27 of the Arms Act and has been sentenced to undergo R.I. for two years thereunder. The sentences passed against the appellant Jagat Sah has been ordered to run concurrently. 3. The prosecution version which led to the trial of the appellants is that on 18.5.1986 at 11.00 P.M. the informant Lalmati Devi was sitting at her door waiting for arrival of her son Balindra Sah (deceased). Her son alongwith his brother-in-law (Sala) Hazarilal Sah retuned after attending a Barat. At that time the said Hazarilal Sah was playing on a loudspeaker on his cycle. The appellants Jagat Sah, Ram Naresh Rai and accused Tilak Sah (since dead), who were sitting at the door, objected to playing of loudspeaker and abused and the appellant. Jagat Sah threatened that if they did not stop blowing the loudspeaker he would shoot them. The appellant Ram Naresh Rai then exhorted to shoot the deceased to end all disputes and then the appellant Jagat Sah went near Balindra Sah and Ram Naresh Rai caught hold of him and Jagat Sah fired with his country made gun on the chest of Balindra Sah and he fell down and died. 4. The Fard Beyan of the informant was recorded by Kamo Prasad, S.I. of Chakiya Police Station at 1.00 A.M. in the same night at the door of the informant at village Banshghat, P.S. Chakiya, District East Champaran. The police registered the case and after investigation submitted charge sheet against the appellants. 5. Both the appellants were charged under section 302/34 of the Indian Penal Code and the appellant Jagat Sah was further charged under section 27 of the Arms Act. Both of them pleaded not guilty to the charges. The police registered the case and after investigation submitted charge sheet against the appellants. 5. Both the appellants were charged under section 302/34 of the Indian Penal Code and the appellant Jagat Sah was further charged under section 27 of the Arms Act. Both of them pleaded not guilty to the charges. Their defence as gathered from the suggestions given to the P.Ws. is that they are innocent and the deceased was a criminal and he was murdered by some of his enemies and as no body had seen the occurrence, they were faisely implicated on account of land dispute. 6. In order to prove its version, the prosecution examined altogether 13 witnesses. Among whom P.W. 13 is Dr. Lall Narayan Jha, who had conducted the postmortem examination on the dead body of the deceased. P.W. 12 Kamod Prasad is the Investigating Officer, who investigated the case. P.W. 11 Lalmati Devi is the informant and P.W. 1 Hajarilal Sah, P.W. 3 Nageshwar Prasad, P.W. 4 Lalpari Devi, P.W. 10 Devanti Devi are the eye witnesses to the occurrence. P.W. 2 Ganesh Sah is a hearsay witness and P.W. 5 Brij Kishore Singh is a witness who had been the appellants fleeing from the place of occurrence. P.W. 6 Nawal Kishore Singh is a witness in whose presence Fard Beyan was recorded by the I.O. and blood stained Lungi, blood stained earth was seized by the I.O. P.W. 7 Nagina Sah, P.W.8 Ram Chandra Shastri and P.W. 9 Rajpati Devi are the witnesses who have been declared hostile by the prosecution. The appellants did not examine any defence witness. 7. After considering the evidence on record the learned Trial Court held the appellants guilty and convicted and sentenced them as stated above. 8. The question that falls for determination is whether in the facts and circumstances of the case and the evidence on record, the order of conviction and sentence passed by the learned Trial Court is fit to be sustained. 9. Learned counsel for the appellants assailing the judgment of the Trial Court contended that the judgment under appeal is unreasoned and that the trial court has erred in placing reliance on the evidence of the witnesses who are highly interested and are inimical against the appellants. He also submitted that the evidence of the witnesses were full of infirmities and contradictions and were not fit to be relied upon. He also submitted that the evidence of the witnesses were full of infirmities and contradictions and were not fit to be relied upon. 10. In order to appreciate the points raised by the learned counsel, it would be proper to briefly note the evidence which has been adduced by the prosecution to sustain the charge levelled against the appellants. 11. P.W. 11 Lalmati Devi (informant) has deposed that on the alleged date at about 10-11 in the night she was at her door. The appellants and Tilak Sah were also sitting at the door. At that time her son, Balindra Sah came alongwith his Sala Hajarilal Sah from the market. His Sala was playing on a loudspeaker. The appellant Jagat Sah objected to it and threatened that otherwise he would shoot him. Hajarilal Sah stopped the blowing of the loudspeaker. Her son was going to take meal. The appellant Jagat Sah stopped him and the appellant. Ram Naresh Rai ordered to shoot and also caught hold the left hand of her son and the appellant Jagat Sah fired with a country made gun (Nalkatua) on the right side chest of her son. Her son fell down dead. She has further deposed that on account of land dispute her son was murdered. 12. In cross-examination the witness has stated that the appellant Jagat Sah and her family live in the same Angan and she was waiting at the door for her son and that her son was at a distance of four steps from the Darwaja when he was shot at. 13. P.W. 1 Hajarilal Sah has stated that on the alleged night at 11.00 P.M. he was returning to the house of Balindra Sah from Barat alongwith his brother-in-law Balindra and when they reached to the door of Balindra Sah he saw the appellants Jagat Sah, Ram Naresh Rain, Tilak Sah sittig at the door of Balindra Sah. He (P.W. 1) was playing on a loudspeaker on his cycle. The appellant Jagat Sah abused him and asked to stop blowing of loudspeaker. His brother-in-law asked him not to abuse as there was guest at his house. On this appellant Ram Naresh Rai exhorted to kill his brother-in-law to end all disputes. The appellant Jagat Sah then fired on Balindra Sah by taking out a revolver hitting his chest. The appellant Jagat Sah abused him and asked to stop blowing of loudspeaker. His brother-in-law asked him not to abuse as there was guest at his house. On this appellant Ram Naresh Rai exhorted to kill his brother-in-law to end all disputes. The appellant Jagat Sah then fired on Balindra Sah by taking out a revolver hitting his chest. The appellant Ram Naresh Rai at that time had also caught hold of his brother-in-law. Balindra Sah fell down receiving injury and died and the appellants fled away. In his cross-examination the witness has stated that Balindra Sah and Jagat Sah (appellant) were cousins and both were separate in mess, but they used to live in the same Angan. He has also stated that his loudspeaker was brought on hire at a distance of 3-4 K.Ms. from the house of brother-in-law and both of them were returning together from the market with the loudspeaker. He has further stated that to the west of the road the occurrence took place and after keeping loudspeaker and cycle in the Baithaka which was to the East of the road, he reached nearn Balindra Sah and firing took place. He has stated that shoulder of Baliram Sah was caught and Baliram Sah was shot at from a close range. 14. P.W. 10 Devanti Devi, the wife of the deceased, has stated that on the alleged date at 11.00 P.M. she was in her house. At that time her brother Hajari Lal and her husband came to the door from the outside. She also came to her door from the Osara. Her brother was hearing loudspeaker. The appellants Jagat Sah, Ram Naresh Rai and accused Tilak Sah asked her husband and brother not to blow loudspeaker. Her brother had gone to Bishnupur with loudspeaker. On objection by the appellants her brother stopped hearing the loudspeaker and then kept the loudspeaker with the cycle on Osara. Then when her husband proceeded from the door to take his meal, Ram Naresh Rai caught hold of the left hand of her husband and Jagat Sah fired with Nalkatua on his chest and her husband fell down and died. Her evidence also is that there was a land dispute between her husband and the appellant Jagat Sah and there was proceeding under Section 107 Cr.P.C. between them and so the occurrence took place. 15. Her evidence also is that there was a land dispute between her husband and the appellant Jagat Sah and there was proceeding under Section 107 Cr.P.C. between them and so the occurrence took place. 15. P.W. 3 has stated that on the alleged date at 11.00 P.M. he was sleeping in his Dalan and he saw that Hajarilal, Sala of Balindra came blowing the loudspeaker. Balindra Sah was also with him. Both of them came to the house of Balindra Sah. Jagat Sah stopped Hajarilal from blowing loudspeaker. Tilak Sah and one more person were with Jagat Sah. He woke up on the sound of loudspeaker. He has stated that when Jagat Sah objected, there was some altercation and then Balindra Sah came out from his house and Jagat Sah fired on Balindra Sah and Balindra Sah died there and thereafter on the same night Jagat Sah left the village with his family members. His evidence also is that the deceased and the appellant Jagat Sah both are his cousin brothers. 16. P.W. 4 has stated that on the alleged night at 10-11 P.M. she was sleeping at her door under Marai (hut), when Sala of Balindra came with Balindra, playing on a loudspeaker. The appellant Jagat Sah objected saying whether he would let him sleep. An altercation ensued whereupon the appellant Jagat Sah fired on the right side chest of Balindra and Balindra fell down dead and Jagat Sah fled away alongwith his children. 17. P.W. 5 has deposed that on the alleged night at 11.00 P.M. he was returning from Barat when he heard sound of firing and went to the door of Balindra Sah and saw him fallen down and from the mother of Balindra and others he came to know that Jagat Sah had fired on him. He has further stated that he saw the appellant Jagat Sah fleeing away with one more person. 18. Among the above witnesses P.W.11 though is mother of the deceased and as such, is an interested witness, there is nothing material in her evidence to disbelieve her testimony. The occurrence had taken place at her door and therefore, she was a competent witness. She also stated that usually they go to sleep at 7-8 P.M. but she has further stated that she was waiting for arrival of her son. The occurrence had taken place at her door and therefore, she was a competent witness. She also stated that usually they go to sleep at 7-8 P.M. but she has further stated that she was waiting for arrival of her son. Therefore, her evidence is natural that she was at the door when the occurrence took place. In her cross-examination she has reiterated that out of two persons one fired on her son and the other had caught hold of him and she herself had seen the culprits who had caught her son. The Fard Beyan (Ext. 2) corroborates the testimony of the witness in material particulars. The Fard Beyan was recorded on the same night at her door at 1.00 A.M. i.e. within two hours of the occurrence. Therefore, there was no chance of embellishment in it. The witness at one place has stated that the S.I. had taken her L.T.I. on a plain paper. But the evidence of P.W. 7, who is a witness on Fard Beyan, has stated that the I.O. had recorded the Fard Beyan on the statement of the informant. However, on this stray statement of this witness, who is illiterate woman, it cannot be said that then I.O. had taken L.T.I. of this witness on blank paper. The witness again has stated in her evidence that the appellant Jagat Sah had fired with her Nalkatua, but in Fard Beyan she also stated that he had gun with him. But this is a minor contradiction as Nalkatua is known as country made gun. The witness has admitted that her family had land dispute with the appellant Jagat Sah. But the enmity cuts both ways. Hence, only because the witness had land dispute with the appellants it cannot be said that she falsely implicated him. She was the mother of the deceased and it is not expected that being a near relative she would release the real culprit and falsely implicate an innocent person. She has not stated whether there was any light at the P.O. to witness the assailants of her son. But the appellants were known to her. Therefore, there was no difficulty for her to identify them. She has, again, admitted that Bhagal Mali had his house west to her house and he was a dacoit and was murdered prior to the occurrence. But the appellants were known to her. Therefore, there was no difficulty for her to identify them. She has, again, admitted that Bhagal Mali had his house west to her house and he was a dacoit and was murdered prior to the occurrence. She has also admitted that her son was arrested with Bhagal Mali but she has denied that after the death of Bhagal Mali her son developed enmity with the gang of Bhagal Mali. She has also denied that she did not see the assailant of her son. 19. P.W. 1 was with the deceased. Therefore, he is the most competent witness. He is also a relative of the deceased but there is nothing in his testimony to disbelieve him. The evidence of the I.O. of course is that this witness did not state before him that the appellant Ram Naresh Rai had caught hold of Balindra Sah as was stated by him in evidence. But simply for his contradiction his evidence cannot be discarded as a whole. Besides this, his evidence is consistent that the appellant Ram Naresh Rai exhorted to kill and end all disputes. Hence, the complicity of appellant Ram Naresh Rai is not wiped out on account of the above contradiction. 20. P.W. 10 is also a competent witness being the wife of the deceased. Though her evidence in Examination-in-chief is that when her husband proceeded to take meal he was shot at, in her cross-examination she has stated that on the sound of firing throwing the food she rushed to her door and saw her husband lying besmeared with blood. Therefore, it is quite probable that she did not see the actual assault on her husband. But her evidence is unimpeachable that as her brother was playing on a loudspeaker the appellant Jagat Sah, Ram Naresh Rai and Tilak Sah objected and thereafter the occurrence took place. This witness again has stated that the members of her family and the members of the family of Jagat Sah generally sleep at 9.00 P.M. But her evidence is clear that at the time of occurrence both the appellants and Tilak Sah were present at the door. The evidence of P.W. 1 also is that dance was going on in the village. So it is quite probable that the appellants did not sleep and were sitting at this door alongwith others. The evidence of P.W. 1 also is that dance was going on in the village. So it is quite probable that the appellants did not sleep and were sitting at this door alongwith others. She has admitted that there was a proceeding under Section 107 Cr.P.C. between her husband and the appellant Jagat Sah and there was land dispute between them. But as already mentioned this is no ground to disbelieve the witness or the prosecution case. 21. As regards P.W. 3 he is also a competent witness as it appears that he is an agnate of the deceased. His evidence shows that on the sound of loudspeaker he had woke up. Therefore, he was in a position to witness the occurrence. His evidence further is that the deceased and the appellant Jagat Sah both are his cousins. Therefore, there is no reason why he would depose falsely against the appellants. He has, of course, also stated that the appellant Jagat Sah had evicted him from the ancestral house, but his evidence further is that the same took place after five years of the occurrence. Hence, from this enmity it cannot be said that the witness has deposed falsely against the appellants specially when there is no inconsistency in his evidence in Court and his statement before the I.O. so far as the complicity of appellant Jagat Sah is concerned. 22. P.W 4 has stated that the road was east of her Marai where she was sleeping and the house of Balindra Sah was east of the road. She was, hence, also a competent witness. She has also stated that she had slept before the occurrence and on the sound of loudspeaker she woke up. Her evidence, hence, is also natural. She has in her cross-examination also emphatically stated that she had seen the deceased being shot at. The witness is the wife of Shankar Sah. The evidence of P.W 3 shows that Shankar Sah is his uncle. Therefore, the witness is also an agnate of the deceased and the appellant Jagat Sah. She has also stated that she had good relationship with the appellants. Therefore, there is no reason as to why this witness would depose falsely against the appellants. She has also denied the suggestion that as it had become night no body had seen the assailant of the deceased. 23. She has also stated that she had good relationship with the appellants. Therefore, there is no reason as to why this witness would depose falsely against the appellants. She has also denied the suggestion that as it had become night no body had seen the assailant of the deceased. 23. Thus, on analysis of the evidence of PWs. 1, 3, 4 and 11 it appears that they are eye witnesses to the occurrence and had supported the prosecution case and they all are competent and trust-worthy witnesses and there is nothing in their evidence to disbelieve them. The evidence of PW 10 also shows that she is a competent witness and though it is doubtful that she had seen the actual murder, her evidence also shows that as her brother was playing on the loudspeaker, the appellant Jagat Sah objected and on that account the murder took place. 24. It may, however, be mentioned here that PWs. 3, 4 have not stated that the appellant Ram Naresh Rai was present at the P.O. at the time of occurrence, but they have not also been declared hostile by the prosecution. But the evidence of PW. 3 shows that during his cross-examination by the appellants his attention was drawn towards his statement before the I.O. for the purpose of contradiction and he stated that he did not state before the I.O. that the appellant had caught hold of Balindra, whereas the I.O. has stated that the witness had made such statement before him. This contradiction clearly suggests that in the court, the witness had tried to save the appellant Ram Naresh Rai. Besides this, when the evidence of PWs. 1 and 11, who were the most competent witnesses of the case, is quite consistent that the appellant Ram Naresh Rai also had taken part in the murder, on the evidence of PWs. 3, 4 it cannot be doubted that the appellant actually did not take part. On account of this contradiction the entire evidence of PWs. 3, 4 also cannot be doubted. 25. As regard P.W. 5 though he is a hearsay witness, his evidence shows that he had reached immediately after the occurrence and had seen the appellant Jagat Sah fleeing. Therefore, his evidence also supports the complicity of this appellant. He has also not stated that he had seen Ram Naresh fleeing, but in view of the evidence of PWs. 25. As regard P.W. 5 though he is a hearsay witness, his evidence shows that he had reached immediately after the occurrence and had seen the appellant Jagat Sah fleeing. Therefore, his evidence also supports the complicity of this appellant. He has also not stated that he had seen Ram Naresh fleeing, but in view of the evidence of PWs. 1, 11, as discussed above, it cannot also be said that the appellant Ram Naresh Sah did not take part in the occurrence. 26. In this case the evidence of the eye witnesses is that Hajari Lal, the Sala of the deceased, was playing on the loudspeaker and he was asked to stop it. Learned counsel, hence, has argued that if at all the appellants had any grudge at that time, it was against Hajari Lal and there is no reason as to why the deceased would have been the target. But from the evidence of P.W. 1 it is clear that the appellant Jagat Sah had started hurling abuses which was protested by Balindra. This has also been corroborated by PW. 3. The evidence also shows that there was land dispute between Balindra and the appellant Jagat Sah. It is, therefore, evident that as has been stated by PW. 1 the appellant Ram Naresh, who was sitting there, exhorted to end the dispute for ever and on this appellant Jagat Sah fired on the deceased. Therefore, there is nothing unusual if the deceased became the target. It may also be pointed out here that the evidence of PW. 11 is that when Hajari Lal was paying on the loudspeaker near the door of the deceased, the appellant Jagat Sah threatened him to stop it and Hajari Lal stopped it and then Balindra was going to take his meal when the occurrence took place. P.W. 10 has also stated that when her husband proceeded to take meal from the Darwaja he was shot at. P.W. 1 in his cross-examination has also stated that after he kept the loudspeaker and the cycle in Baithaka, the firing took place. In the Fard Beyan it is not mentioned that when Balindra was going to take meal, the occurrence took place. But, this contradiction is not material and does not affect the present case because the basic feature of the case in the Fard beyan and the evidence adduced are same. In the Fard Beyan it is not mentioned that when Balindra was going to take meal, the occurrence took place. But, this contradiction is not material and does not affect the present case because the basic feature of the case in the Fard beyan and the evidence adduced are same. In both of them, the prosecution case is that on account of blowing of loudspeaker an objection was made by the appellants which ultimately resulted in the murder. 27. PW. 13 the doctor has deposed that on 19.5.1986 he was C.A.S. at Sadar Hospital, Motihari and on that day at 2.00 P.M. he performed the postmortem examination on the dead body of Balindra Prasad, son of Laxuman Deo Sah of village Banshghat, P.S. Chakia and found the following ante-mortem injury: "Round hole 2" diameter with lacerated margin going deep to chest cavity over right chest one inch below the middle part of clavicle (collar bone)." 28. He has further stated that on dissection he found second right rib fractured, right chest cavity full of blood. A hole of nearly 2" diameter detected in the right lung. Nine pieces of round metal of nearly 5 m.m. diameter were recovered from the chest cavity and lungs tissues alongwith two pieces of round cardboard from the chest cavity. Left chest cavity dry and all chambers of heart were dried. 29. He has opined that the cause of death was fire arm injury of right chest cavity leading to haemorrhage and shock and the time elapsed since death was within 24 hours of postmortem examination. 30. The evidence of the eye witnesses, as already mentioned, is that the deceased was shot dead by a country made gun and the occurrence had taken place in the night between 18th/19th May, 1986. The evidence of the doctor, hence, corroborates the testimony of the eye witnesses. 31. The I.O. (PW.12) has stated that on 19.5.1986 at 12 in the night, on receiving an information from the Chaukidar that a murder has been committed at village Bansghat he proceeded for that village and at 1.00 A.M. recorded the Fard Beyan (Ext. 2) of the informant Lalmati Devi. He has further stated that he then recorded the further statement of the informant and inspected the place of occurrence. His evidence further is that the PO. 2) of the informant Lalmati Devi. He has further stated that he then recorded the further statement of the informant and inspected the place of occurrence. His evidence further is that the PO. was the Darwaja of the deceased and the appellant Jagat Sah and 12' West of it was the Janani Kita of the deceased and 12' East was the Baithaka of the deceased and there was a village road running North South in between Darwaja and the Baithaka and 3' West of this road, he found the dead body of the deceased. He has further stated that around the dead body blood was found in large quantity and there was Lungi beside the dead body which was also soaked with blood and that the deceased had worn an underwear and vest which was also soaked with blood. 32. The evidence of the I.O., hence, also corroborates the testimony of the witnesses that the occurrence took place near the door of the deceased. 33. From the discussions made above, it is clear that the witnesses examined on the point of occurrence are relations of the deceased, all are competent witnesses and their evidence is reliable and their evidence is corroborated by the medical evidence and objective finding of the I.O. 34. The evidence of P.W. 4 is that on hulla several persons in the village had reached at the P.O. whereas no independent witness has come to support the prosecution case. But the evidence of P.W. 4 further shows that they had reached after the assailants had fled away. Therefore, they were not eye witnesses to the occurrence. So, their non-examination does not affect the prosecution case. 35. Thus, having given a careful consideration to the facts, evidence and circumstances and the submissions made by the learned counsel, I am clearly of the opinion that the prosecution has succeeded in establishing its case against the appellants beyond any shadow of doubt and there is absolutely no ground which warrants interference with the judgment and the order of the learned trial court passed against the appellants. 36. There is no merit in these appeals and they are dismissed. Appellant Ram Naresh Rai is directed to appear before the tiral court to serve out the sentence. 36. There is no merit in these appeals and they are dismissed. Appellant Ram Naresh Rai is directed to appear before the tiral court to serve out the sentence. The learned trial court is also directed to take stern steps for the arrest of this appellant Ram Naresh Rai, if he does not surrender before it within three months from the date of this order. I agree.