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2006 DIGILAW 185 (PAT)

Lalan Rai v. State Of Bihar

2006-02-21

AFTAB ALAM, NAVIN SINHA

body2006
Judgment Navin Sinha, J. 1. An occurrence took place on 8.11.1983 at about 10.00 a.m. on Plot No. 141 situated in Village Nayagaon (Sonepur) in District Saran. One Ram Sewak Rai, uncle of the informant PW 7, died in the assault. The prosecution side and the accused persons are pattidars (neighbours). The cause of the occurrence was a dispute between the parties for two and half dhurs of Plot No. 141, both sides being armed with sale deeds. 2. The police on completion of the investigation submitted charge-sheet against appellants 6 to 8 under Section 302 read with Section 149 of the Penal Code. The other appellants were charged under Section 302 read with Section 34 of the Penal Code. Appellant No. 2 and appellant No. 7 were further charged under Section 324 of the Penal Code. Appellant No. 8 was further charged under Section 325, IPC and appellant Nos. 4 and 8 were further charged under Section 147, IPC while the remaining appellants were charged under Section 148 of the Penal Code. The trial Court on the conclusion of trial on basis of the aforesaid materials held all the appellants guilty under Section 302/149 of the Penal Code and sentenced them to life imprisonment. Appellants 2 and 7 were further found guilty under Section 324 of the Penal Code and sentenced to one year rigorous imprisonment each. Appellants 4 and 8 were also found guilty and convicted under Section 147 of the Penal Code and sentenced to rigorous imprisonment for each under Section 147 of the Penal Code. Appellant No. 8 was further held guilty and convicted under Section 325 of the Penal Code and sentenced to rigorous imprisonment for two years. The other appellants were held guilty and convicted under Section 148 of the Penal Code and sentenced to rigorous imprisonment for two years. All the sentences were directed to run concurrently. 3. The case proceeded on the basis of the fardbeyan of one Harendra Prasad Yadav PW 7 recorded the same day at 11.00 a.m. by the Officer Incharge Nayagaon PS (marked as Exhibit-3). He stated that on the same day at about 10.00 a.m. his uncle Ram Sewak Rai saw Sabu Lal Rai-appelant No. 2 and Musafir Rai- appellant No. 5 dismantling the Tat in front of his house. Ram Sewak Rai objected, asking them not to do so, without having measurement done. He stated that on the same day at about 10.00 a.m. his uncle Ram Sewak Rai saw Sabu Lal Rai-appelant No. 2 and Musafir Rai- appellant No. 5 dismantling the Tat in front of his house. Ram Sewak Rai objected, asking them not to do so, without having measurement done. Sabu Lal Rai-appellant No. 2, retorted stating he would do so. Both Sabu Lal Rai and Ram Sewak Rai started abusing each other. Musafir Rai-appellant No. 5 ran to his house, brought a spear saying that he would kill Ram Sewak Rai and assaulted him on his chest. Hearing the commotion other family members rushed when Binda Rai-appellant No. 3 came with a farsa and spear, handed over the farsa to Sabu Lal Rai-appellant No. 2. The other appellants also came variously armed. Shambhu Rai and Prabhu Rai-appellant Nos. 4 and 8 with lathi, Surendra Rai-appellant No. 7 with spear, Birnedra Rai-appellant No. 6 with spear, Lalan Rai-appellant No. 1 with farsa came near the Tat. Lalan Rai-appellant No. 1 assaulted Ram Sewak Rai on his head with farsa, Binda Rai- appellant No. 3 assaulted him with spear. The others assaulted the family members Ram Chandra Rai and Yogendra Rai causing injuries. The informant PW 7 was assaulted by Sabu Lal Rai- appellant No. 2 with a farsa on the head and by Surnedra Rai-appellant No. 7 by a spear on his back. The informants sister Laljhari Devi was assaulted by Prabhu Rai-appellant No. 8 with a lathi breaking her left arm. They tied up Ram Sewak Rai. Shabhu Rai-appellant No. 4 then assaulted him with lathi. The appellants are stated to have run any thereafter Ram Sewak Rai died on his way to the Sadar Hospital at Hajipur. The formal First Information Report was then drawn up on 8.11.1983 at 12.30 p.m. registered as Nayagaon PS Case No. 252 of 1983 marked as Ext. 1. 4. The Officer Incharge Nayagaon Police Station-PW 11 on receipt of information came to the Sadar Hospital. The Inquest Report of the deceased Ram Sewak Rai was prepared marked as Ext. 2/2. The Officer Incharge visited the place of occurrence and prepared the seizure list of blood stained earth marked as material Ext. 4 blood stained arms marked as material Ext. The Officer Incharge Nayagaon Police Station-PW 11 on receipt of information came to the Sadar Hospital. The Inquest Report of the deceased Ram Sewak Rai was prepared marked as Ext. 2/2. The Officer Incharge visited the place of occurrence and prepared the seizure list of blood stained earth marked as material Ext. 4 blood stained arms marked as material Ext. 4/A and the blood stained rope and Ganji marked as material Ext, 4/B. The doctor at the hospital carried out the post-mortem upon the deceased Ram Sewak Rai. The post-mortem report is marked as Ext. 5. It is the case of the appellants that on the date of occurrence the members of the prosecution party were wrongly attempting to put up a Palani on the disputed land which was objected to by some of the appellants. The prosecution party in protest severely assaulted appellants 1,2 and 5 leading to the institution of a fardbeyan of appellant No. 5 at 11.20 a.m., the same day, at Nayagaon Dispensary which came to be registered as Nayagaon PS Case No. 253 of 1983. The appellants 1, 2 and 5 also sustained injuries and. their injury reports were marked as Ext. C, C/1 and C/2. The appellants contend that the case was false. The prosecution side were the aggressors and they implicated appellants because of the First Information Report registered by them. 6. It is significant to observe that the police officer who visited the land soon after the occurrence found that the Tat in question had existing live pumpkin creepers on it. He also found that no damage had been caused to the Tat. There would thus be competing claims over the small strip of land with both sides alleging the other to be the aggressors. 7. The prosecution examined fourteen witnesses. PWs 1, 8, 9, 10, 13 and 14 are formal witnesses. PWs 2 to 7 are eyewitnesses who were also variously injured with the exception of Pws 3 and 6. The informant Harendra Prasad Yadav-PW 7 in his evidence fully supported the First Information Report with regard to origin of the occurrence, and the manner of assault, stating that appellant No. 5 assaulted Ram Sewak Rai on his chest with a spear. All the appellants came variously armed as mentioned in the First Information Report, Appellant No. 1 assaulted Ram Sewak Rai on his head with a farsa. All the appellants came variously armed as mentioned in the First Information Report, Appellant No. 1 assaulted Ram Sewak Rai on his head with a farsa. Appellant No. 3 assaulted Ram Sewak Rai on his shoulder with a spear. Ram Sewak Rai ran towards the bamboo clump when the appellants chased and assaulted him. Ram Sewak Rai then ran towards the Bathan where also the appellants tied up his feet and assaulted him. Appellant Nos. 2 and 7 assaulted the informant with a farsa and spear on the head and back respectively. Laljhari PW 5 was assaulted by lathi by appellant No. 8 when her left arm broke. Appellant No. 4 assaulted Phulwanti PW 4 with a lathi. He also deposed that the deceased Ram Sewak had grown the existing Pumpkin creeper over the Tat in question. He claimed that they had purchased the lands in the name of his grand-mother from one Pyare Hajara. He further stated that appellant No. 5 assaulted Ram Sewak Rai on the left side of the chest with a spear and then pulled it out. The origin and manner of the assault as stated by PW 7 has been supported in its entirety by PWs 2 to 6 who have also stated themselves in their evidence to be eye-witnesses. FIR witness Yogendra Rai PW 2 has stated that he was assaulted by appellant No. 8 with a lathi on his head. Phulwanti Devi-PW 4 has stated that she was assaulted by appellant No. 4 with a lathi on her hand. Laljhari Devi PW 5 has stated that she was assaulted with a lathi by appellant No. 8. They were also treated at the Nayagaon Hospital and their injury reports have been marked as Exts. 7 to 7/3. 8. The Post-Mortem Report of the deceased Ram Sewak confirms fifteen injuries on his person which the doctor PW 12 has stated were sufficient in the ordinary course of nature of cause death. He further confirmed that the injuries had been caused by spear and farsa. The post-mortem report records the following injuries on the deceased. 1. Sharp incised penetrating wound 1 x 1/2 x 5 placed obliquely just below the central part of the lower margin of the right mandible penetrating towards the neck. 2. Sharp incised wound 1 x 1/2 x 1/4 on the left partial prominence. 3. The post-mortem report records the following injuries on the deceased. 1. Sharp incised penetrating wound 1 x 1/2 x 5 placed obliquely just below the central part of the lower margin of the right mandible penetrating towards the neck. 2. Sharp incised wound 1 x 1/2 x 1/4 on the left partial prominence. 3. Lacerated wound 3x2x 1/4 on the upper part of the left forearm around the elbow. 4. Lacerated wound lxl/4xl/4 on the left side of the chest 1 above the left nipple. 5. Abrasion 1 x 1/2 placed obliquely on the left side of the chest 1 above and lateral to the injury No. (iv). 6. Sath mark 12 x 2 on the chest placed obliquely from the left nipple to the central part of right collar bone. 7. sath mark 9 x 2 placed obliquely on the right side of the chest. 8. Sath mark 4x 2placed obliquely on the left side of the chest. 9. Abrasion 3 x 1/4 placed transversely on the upper part of the abdomen, 10. Lacerated wound 3 x 1/4 placed obliquely on anterior surface of the left leg. 11. Lacerated wound 1/2 x 1/4 x 1/4 on the medial surface of right knee. 12. Lacerated wound 1/4 x 1/4 x 1/4 placed anteriorly on the central part of right leg. 13. Lacerated wound 1/4 x 1/4 x 1/4 placed just above the right malleolus. 14. Lacerated 1/4 x 1/4 x 1/4 placed just above right medial malleolus. 15. Lacerated 1 x 1/4 x 1/4 on the upper part of the left buttock. 9. The Officer Incharge PW 11 stated in his evidence that he visited the place of occurrence at about 12.35 p.m. and found pumpkin creepers existing on the Tat. The bamboo clump was at a distance of 10 steps from the Tat. He found blood marks to the east of the bamboo clumps. The Bathan of the prosecution was 25 steps to the north. At the Bathan he found scattered and trampled fodder, a piece of plastic and bricks with blood stains. He seized the blood stained earth and prepared the seizure list, marked as Material Ext. 4. At ten steps was the house of the appellants who all reside together in one house. At the Bathan he found scattered and trampled fodder, a piece of plastic and bricks with blood stains. He seized the blood stained earth and prepared the seizure list, marked as Material Ext. 4. At ten steps was the house of the appellants who all reside together in one house. He recovered a blood stained farsa, two spears out of which one was blood stained, four lathies all of which were blood stained, a jute rope which was blood stained from the house of the appellants and seized the same which was marked as Material Ext. 4/A. At 10-50 a.m. he had seized a blood stained jute rope and Ganji from the person of Ram Sewak Rai at the hospital marked Material Ext. 4/B. In his cross-examination he stated that he found appellants 1, 2 and 5 in an injured condition which led to the registration of Nayagaon PS Case No. 253 of 1983. He did not find any blood marks near the Tat and neither did he find that the Tat or the creepers on the Tat had been disturbed or scattered. 10. The appellants primarily contended that they had acted in exercise of the right of private defence and in absence of the prosecution explaining the injuries on the appellants the entire story and the manner of occurrence was rendered suspect and that no conviction of the appellants could be sustained on the same especially when injuries on the person of some of the appellants had been proved and marked as Ext. C, C/1 and C/2 which remained unexplained. The prosecution witnesses in their deposition had tried to hide the origin and manner of occurrence by denying the assault and injury to the appellants. 11. The trial Court noticed that PWs 2, 4, 5 and 7 were persons injured in the occurrence. The prosecution witnesses were consistent and reliable in their depositions in Court. The injuries on the person of the deceased were corroborated by ocular evidence. The doctor opined that the injuries upon the deceased were sufficient in the ordinary course of nature to cause death. The injuries on the person of the appellants 1, 2 and 5 were primarily simple in nature or remained unexplained. The injuries on the person of the deceased were corroborated by ocular evidence. The doctor opined that the injuries upon the deceased were sufficient in the ordinary course of nature to cause death. The injuries on the person of the appellants 1, 2 and 5 were primarily simple in nature or remained unexplained. It, therefore, held that merely because the prosecution witnesses were related and the injuries on the appellants remained unexplained was not sufficient to doubt the case of the prosecution with regard to the origin and manner of occurrence. 12. Learned senior counsel Shri Rana Pratap Singh appearing on behalf of the appellants submitted that the prosecution case that the genesis of the occurrence was the dismantling of the Tat by the appellants which was objected to by the deceased Ram Sewak Rai. The police officer-PW 11 stated in his evidence that he did not find the Tat to have been damaged at all. Contrary to the assertion of the prosecution that the assault took place at the Tat, PW 11, did not find any signs of blood at the Tat. The appellants had purchased the land from Ram Pyare Hajara on 19.11.1973 while the prosecution claims to have purchased the land on 28.3.1974. Learned senior counsel further submitted that all the prosecution witnesses in support Of the occurrence were interested and related witnesses. Their assertion of the manner of occurrence did not find support from the objective findings of PW 11 at the place of occurrence. There are competing witnesses from both sides. In this background the denial of injuries on appellants 1, 2 and 5 was falsified by their injury reports at Ext. C series. Coupled with the fact that Nayagaon PS Case No. 253/83 was registered the same day with regard to the injuries on the aforesaid appellants was enough to show that the prosecution was not being truthful in its presentation of the occurrence. The origin and the manner of occurrence was being concealed and distorted by the prosecution which was sufficient to disbelieve their case and acquit the appellants. The appellants lay claim to the land in question and had only resorted to self defence when the deceased Ram Sewak Rai tried to put up a Palani on the land in question. 13. The origin and the manner of occurrence was being concealed and distorted by the prosecution which was sufficient to disbelieve their case and acquit the appellants. The appellants lay claim to the land in question and had only resorted to self defence when the deceased Ram Sewak Rai tried to put up a Palani on the land in question. 13. In support of his submissions he relied upon a judgment of the Supreme Court in the case of Lakshmi Singh and others v. State of Bihar, reported in AIR 1976 SC 2263 , for the proposition that it was the duty of the prosecution to explain the injuries on the person of the appellants more so when the prosecution witnesses were interested and related. Learned counsel further relied upon a judgment of the Supreme Court in the case of Kashi Ram and others v. State of M.P., reported 2002 (1) East Cr C 348 (SC) : (2002) 1 SCC 71 , to submit that it was the duty of PW 11 to place before the Court the injuries sustained by appellants 1, 2 and 5 and accordingly place the actual manner of occurrence that took place. 14. Shri Lal Kailash Prasad, appearing on behalf of the State submitted that the evidence of the prosecution witnesses being reliable and consistent could not fail merely because there may have been what he termed as minor omissions with regard to the manner of the origin of the occurrence. Learned counsel submitted that from the evidence of Phulwanti Devi-PW 4 it was apparent that Ram Sewak Rai on being assaulted near the Tat ran towards the bamboo clump where he was assaulted again. He then ran towards the Bathan where he was again assaulted. The informant PW 7 had corroborated the aforesaid manner of occurrence. Laljhari Devi PW 5 had similarly narrated that the occurrence had taken place in the same manner. Ram Chandra Rai PW 3 had likewise stated that the deceased Ram Sewak Rai ran from the Tat towards the bamboo clump when he was assaulted again at the bamboo clump and chased by the appellants towards Bathan. Monaiko Devi PW 6 had likewise stated that the appellants had chased the deceased to the bamboo clump and assaulted the deceased. Ram Chandra Rai PW 3 had likewise stated that the deceased Ram Sewak Rai ran from the Tat towards the bamboo clump when he was assaulted again at the bamboo clump and chased by the appellants towards Bathan. Monaiko Devi PW 6 had likewise stated that the appellants had chased the deceased to the bamboo clump and assaulted the deceased. It was further submitted that the right of private defence under Sections 102 and 105 of the Penal Code cannot be available to the appellants if they were chasing and assaulting a person who was defenceless and fleeing. The apprehension of any assault creating a right to self defence vanished the moment the deceased started to flee. The non-explanation of injuries on the appellants per se, especially when they were primarily simple in nature could not demolish the case of the prosecution specially when their evidence was consistent and reliable in material particulars. He relied upon a judgment of the Supreme Court in the case of Anil Kumar v. State of U.P., reported in 2004 (7) Scale 684 : 2005 (1) East Cr C 155 (SC) : 2005 SCC (Cr) 178. It was lastly submitted that two First Information Reports came to be lodged by both sides with regard to the occurrence and were registered as Nayagaon PS Case Nos. 252/83 and 253/83. Both were investigated by the Investigating Officer. Charge-sheet submitted and both have been tired separately, the latter vide Sessions Trial No. 63 of 1985/68 of 1986 in which PWs 2, 3 and 7 have been acquitted of the charges by judgment and order dated 3.3.1990 of the 2nd Additional District and Sessions Judge, Saran at Chapra as the prosecution has failed to prove the charges against them under Sections 147, 148, 395, 307 read with 34 of the Penal Code. 15. This Court has considered the submission on behalf of the appellants and on behalf of the State. The Court is satisfied that the occurrence in question took place and in the manner described by the prosecution. Merely because the Tat was not found to be damaged by the Investigating Officer PW 11, did not give credence to the case of the defence because the Investigating Officer PW 11 also stated that a Palani existed with pumpkin creepers on it. Merely because the Tat was not found to be damaged by the Investigating Officer PW 11, did not give credence to the case of the defence because the Investigating Officer PW 11 also stated that a Palani existed with pumpkin creepers on it. This belies the claim of the appellants that the prosecution side were aggressors by attempting to set up a Palani when the appellants acted in self defence The distance from the Tat to the bamboo clumps is stated to be ten steps and that from the bamboo clumps to the Bathan as 25 steps. The deceased is said to have been attacked near the Tat. As per the evidence of prosecution witnesses the entire occurrence lasted for seven to eight minutes. Quite obviously the deceased was not expected to stand at the Tat and receive the assaults. The absence of blood marks at the Tat stand adequately explained by the consistent evidence of the prosecution witnesses that the deceased ran for his life from the Tat to the bamboo clump where he was assaulted again and then on to the Bathan. Fresh blood stains were found by the Investigating Officer PW 11 both near the bamboo clump and the Bathan. Within hours blood stained weapons were also recovered from the house of the appellants. Blood stained rope and Ganji were also recovered from the person of the deceased in the hospital. 16. It has been noticed above that PWs 2, 4, 5 and 7 were also injured during the assault. The law is settled that persons injured in the occurrence are the most reliable witnesses, more so when their evidence is also consistent, reliable and corroborated by the post-mortem report. The mere fact that they were related to the deceased was by itself not sufficient to discard their testimony. 17. The law with regard to non-explanation of the injuries on the accused and the effect of the same on the case of the prosecution as expounded by the Supreme Court in the case of Laxmi Singh relied upon by the appellants holds that the same is a very important circumstance from which the Court can draw the following inferences. 1. That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version. 2. 1. That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version. 2. That the witnesses who had denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable. 3. That in case there is a defence version which explains on the person of the accused it is rendered probable so as to throw doubt on the prosecution case. This will necessarily depend on the facts and circumstances of each case. In the judgment relied upon by the appellants it is significant to note as observed in paragraph 4 that the two groups of accused were totally unrelated to one another and they were two warring factions in the village with various types of cases fought between these two groups. Such is not the case presently. The appellants and the prosecution are admittedly related to each other and are neighbours. In paragraph 13 of the said judgment their Lordships also noticed the omission of the prosecution to send the blood stained earth found at the place of occurrence for chemical examination which could have fixed the situs of the assault and that this procedure was exceptionally departed for reasons best known to the prosecution. Additionally in paragraph 15 the injuries found on the prosecution was not corroborated by the medical evidence. In conclusion their Lordships were satisfied that the genesis and the origin of the occurrence appears to be shrouded in mystery. It was for these reasons that the Court acquitted the accused therein for reasons of non-explanation of injuries on them. Such is not the case presently. The law laid down in the Laxmi Singh case (supra) as aforesaid has been noticed and reiterated by the Supreme Court more recently in 2005 (1) East Cr C 155 (SC) : 2004 (7) Scale 684, Anil Kumar v. State of U.P. This Court can do no better than quote paragraph 11 of the judgment, The case of Laxmi Singh (supra). "11. "11. Non-explanation of injuries by the prosecution will not affect prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and credit worthy, that it outweighs the effect of the omission on the part of the prosecution to explain the injuries. As observed by this Court in Ram Lagan Singh v. State of Bihar, 1988 East Cr C 459 (SC) : AIR 1972 SC 2593 , prosecution is not called upon in all cases to explain the injuries received by the accused persons. It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons. When that is not done there is no occasion for the prosecution witnesses to explain any injury on the person of an accused. In Hare Krishna Singh and others v. State of Bihar, AIR 1988 SC 863 . it was observed that the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case. In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence. If the witnesses examined on behalf of the prosecution are believed by the Court in proof of guilt of the accused beyond reasonable doubt question of obligation of prosecution to explain injuries sustained by the accused will not arise. When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond and reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and under what circumstances injuries have been inflicted on the person of the accused. It is more so when the injuries are simple or superficial in nature......" 18. Ext. C, C/1 and C/2 are the injury reports of appellants 1, 2 and 5. Appellant No. 1 had two injuries. One was simple and opinion regarding the second was reserved not to be disclosed till the conclusion of the trial. The injury on appellant No. 2 was all simple in nature except one for which opinion was reserved till the conclusion of the trial. Appellant No. 1 had two injuries. One was simple and opinion regarding the second was reserved not to be disclosed till the conclusion of the trial. The injury on appellant No. 2 was all simple in nature except one for which opinion was reserved till the conclusion of the trial. With regard to appellant No. 5 of the three injuries one was simple, opinion on the second was reserved and not disclosed, the third was grievous causing dislocation of the root of the right hand for which no X- ray report was brought on record to support the allegation that it as grievous. 19. The only issue now surviving for consideration is that the submission of the appellants that all the prosecution witnesses were related to each other and in the absence of the independent witnesses coupled with the non-explanation of injuries on the appellants it was not safe to uphold the conviction of the appellants. It is settled law that the mere fact that a witness be interested is not sufficient to disbelieve or discredit the prosecution case. A higher level of care and scrutiny of the evidence may be called for in such a case. In the present case, where the prosecution witnesses were also injured in the assault, the occular evidence is clear, cogent consistent and credit worthy. The medical report corroborates the manner of assault on the deceased and the injuries on the PWs. The deceased is stated to have been taken by them to the hospital where the post-mortem was carried out immediately. The blood stained earth, weapons used in the killing and the blood stained clothes on the person of the deceased tell an entirely conclusive story. 20. In the facts and circumstances of the present case, this Court is therefore satisfied that the manner of the occurrence stands adequately explained by the prosecution. The injuries caused to the appellants were primarily simple in nature. A consideration, not wholly irrelevant is also that three members of the present prosecution i.e., PWs 2, 3 and 7 had been acquitted in Nayagaon PS Case No. 253 of 1983 in Sessions Trial No. 63 of 1985/68 of 1986. 21. In the result, this Court finds no merit in the present appeal. It is accordingly dismissed. A consideration, not wholly irrelevant is also that three members of the present prosecution i.e., PWs 2, 3 and 7 had been acquitted in Nayagaon PS Case No. 253 of 1983 in Sessions Trial No. 63 of 1985/68 of 1986. 21. In the result, this Court finds no merit in the present appeal. It is accordingly dismissed. The appellants are directed to surrender before the Court below within a period of four weeks and undergo the remaining period of their sentence. In the event of their failure to surrender within the aforesaid period, the Court below is directed to take all coercive measures so that the appellants be taken into custody to undergo the remaining period of their sentence. Aftab Alam, J. 22 I agree.