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2007 DIGILAW 871 (PAT)

Ram Rajee Rai v. State Of Bihar

2007-05-02

SHIVA KIRTI SINGH, SUBASH CHANDRA JHA

body2007
Judgment SHIVA KIRTI SINGH and SUBASH CHANDRA JHA JJ. 1. Both the appellants, Rasm Rajee Rai and Ram Balak Rai have preferred this appeal against the judgment and order dated 10th July, 2002 passed by learned Addl. Sessions Judge-I-F.T.C. Begusarai in Sessions Trial No. 178/85 whereby they have been convicted for offence punishable under sec. 302 I.P.C. and by order dated 11.7.2002, also under challenge, they have been awarded reigorous imprisonment for life. 2. The prosecution case, in brief is to the effect that on 23.1.1980 the informant, Ram Subhag Rai and his father Buni Lal Rai wanted to reconstruct a Pucca structure for a religious purpose (Gavhar Baba) and for that they started to get the foundation dug. This was objected by accused Uma Rai and Ram Balak Rai on the ground that their share had not been measured and left out. The foundation work was stopped on that date. On 24.1.1980 at about 2.00 P.M. in the noon the father of the informant came out of his house after taking his lunch. Accused Ram Rajee Rai called him and started abusing on the allegation that digging of foundation had been started without taking his permission. The informant was standing and watching from his Darwaja. His father offered to get the land measured but altercation continued. Appellant Ram Rajee Rai went to his Angan and came out with Bhala His brother accused Ram Balak Rai also came out with a Bhala along with accused Uma Rai with Farsa, Hemant Rai with lathi, Lohtan Rai with a brick and Kulej Rai with lathi. They assaulted the father of the informant on the passage on the east of house with Bhala and lathi due to which informants father fell down and died. Allegedly accused appellants Ram Balak Rai and Ram Rajee Rai assaulted the deceased with Bhala on the left side chest portion. Accused Uma Rai also assaulted him with Farsa. When Ram Sagarath Rai (PW 7) an uncle of the informant and the informant (PW 8) went to intervene and save the father of the informant then Ram Sogarath Rai was assaulted by Uma Rai with Farsa and the informant was also assaulted by accused persons by Bhala and Lathi as well as by brick. When Ram Sagarath Rai (PW 7) an uncle of the informant and the informant (PW 8) went to intervene and save the father of the informant then Ram Sogarath Rai was assaulted by Uma Rai with Farsa and the informant was also assaulted by accused persons by Bhala and Lathi as well as by brick. On hulla people from the neighbourhood such as Ramadhar Yadav (PW 2), Ram Jugeshwar Yadav (PW 10), Upendra Yadav (PW 3) and some others came and saw the occurrence. 3. The fardbeyan of the informant Ram Subhag Rai was recorded by Sub-Inspector of Bachhwara P.S. Shri N. Tripathi on 24.1.1980 at 16.00 hours at State Dispensary, Bachhwara. On the same day the formal F.I.R. was drawn leading to Bachhwara P.S. Case No. 5(1)1980. According to the prosecution case the Investigating Officer went to the place of occurrence, prepared the inquest report, sent the dead body for post-mortem examination and after recording the statement of witnesses and completing investigation charge-sheet was submitted leading to sessions trial against five accused including these two appellants since they all pleaded not guilty to the charges. By the impugned judgment as noticed earlier the two appellants have been convicted and the other three accused tried with them for the offence under sec. 302/149 of the Indian Penal Code and some other minor offences have been acquitted because the trial court held that on the facts proved by the prosecution it is doubtful that they shared the common intention or caused any assault or injury. 4. The defence of the appellants/accused appears to be general denial of the occurrence as well as a specific defence by appellant Ram Rajee Rai that he was in service in Malaria Department, Government of Bihar and was on duty at some other place on the relevant date and time when the occurrence allegedly took place. For that purpose on his behalf a document has been proved by a formal witness, D.W.1 which has been marked as Exhibit-A. 5. The prosecution, in order to prove its case has examined altogether 10 witnesses. Jugeshwar Choudhary (PW 1), Ramadhar Yadav (PW 2), Upendra Yadav (PW3) and Jogi Yadav (PW4) have been declared hostile because they chose not to support the prosecution case. PW5, Dr. The prosecution, in order to prove its case has examined altogether 10 witnesses. Jugeshwar Choudhary (PW 1), Ramadhar Yadav (PW 2), Upendra Yadav (PW3) and Jogi Yadav (PW4) have been declared hostile because they chose not to support the prosecution case. PW5, Dr. Bibhash Chandra Choubey held autopsy on the dead body of the deceased Buni Lal Rai on 25.1.1980 at about 11 A.M. He has proved the postmortem report as exhibit-1. His deposition and the postmortem report show that the deceased had received two incised penetrating wounds on the left side of chest area which had caused some internal injury including puncture of left lung at two places by penetrating weapon like Bhala and were sufficient to cause death. The death had occurred within 24 hours of postmortem examination. The doctor has clearly rejected the suggestion of the defence by stating that the two injuries cannot be caused by fall on a sharp pointed object. 6. P.W. 6 Sadabart Narayan Singh is a formal witness who has proved the fardbeyan and formal F.I.R. as Exhibits 2 and 3. Similarly P.W.9, another formal witness has proved injury reports of P.W. 7 and P.W.8 as Exhibits 4 and 4/1 and the inquest report as Exhibit-5. The remaining three witnesses i.e. P.W.7, Ramsograth Rai, P.W.8, the informant and P.W.10 Ram Jugeshwar Choudhary have claimed to be eye witnesses of the occurrence. 7. The informant (PW 8) has supported the prosecution case as alleged by him in the fardbeyan in his deposition in court. Nothing has been elicited in his cross-examination to raise any doubt or suspicion that he did not witness the occurrence and the injuries caused to him are no longer of much relevance because the trial court has acquitted some of the accused persons but his injury report has been brought on record and shows that he had sustained some simple injuries on the date of occurrence. That also supports his claims that he was present at the time of the alleged occurrence. His statement appears to be natural inasmuch as in the fardbeyan and in his deposition in court he has expressed the natural truthful reaction of a witness whose father had been assaulted by saying that he went with lathi and gave two lathi blows to accused Uma Rai. 8. His statement appears to be natural inasmuch as in the fardbeyan and in his deposition in court he has expressed the natural truthful reaction of a witness whose father had been assaulted by saying that he went with lathi and gave two lathi blows to accused Uma Rai. 8. The depositions of P.W.7 and P.W.10 also support the prosecution case in all material particulars such as time, place and manner of occurrence. No doubt P.W.7, Ram Sogarath Rai is also related to the deceased being his brother but his presence at the place of occurrence is also established beyond and doubt since his name as well as the name of P.W. 10 finds mentioned in the fardbeyan. The injury oi P.W.7 showing simple injuries has been proved and brought on record. This witness has admitted in cross-examination that he is illiterate but still he has withstood the rigour of cross-examination without departing from the prosecutin case. It has been suggested by learned counsel for the appellants that his statement in paragraph 13 of the cross-examination creates a doubt whether he received injury even before assault upon the deceased and left for hospital and therefore whether he could have seen the occurrence. On examination of the entire deposition it is found that this witness has given that answer only in the context of subsequent assault after the killing of the deceased by the accused persons. 9. There is no difficulty in holding that this witness has claimed to have seen the assault upon the deceased with his own eyes and there is no good reason to doubt his such claim. 10. No doubt the informant is a close relation of the deceased being his son and P.W.7 is a close relation being brother of the deceased but applying the test of caution, their deposition is found fit to be relied upon. It is well settled law that close relations of victim persons in a serious offence are not inclined to spare the real culprit if they had opportunity to witness the occurrence. In this case the occurrence took place in the noon hours of the day at a place close to the house of the parties after some verbal altercation. It is well settled law that close relations of victim persons in a serious offence are not inclined to spare the real culprit if they had opportunity to witness the occurrence. In this case the occurrence took place in the noon hours of the day at a place close to the house of the parties after some verbal altercation. In such a situation the close relations of the deceased, residing in the house situated nearby, were natural witnesses and they are not expected to attribute the fatal assault to others leaving the real assailants. For the aforesaid reasons this court finds the evidence of the informant and his uncle reliable to sustain the conviction of the appellant as held by the trial court. The medical evidence fully supports the prosecution case. 11. The general denial of the alleged occurrence or the specific plea of alibi of appellant Ram Rajee Rai on the basis of Exhibit A is not found acceptable. 12. P.W.10 Ram Jugeshwar Choudahry is also cited as a witness in the fardbeyan and he has also supported the prosecution case in his deposition in court. His evidence in some minor particulars have been challenged by the defence in cross-examination by referring to his earlier statement under sec. 161 Cr.P.C. before the police. The trial was allowed to linger for long 22 years and the Investigating Officer could not be examined. Due to non-examination of the Investigating Officer it is found that the defence of the appellants may have been prejudiced in a minor manner only in respect to P.W.10 Ram Jugeshwar Choudhary because of certain questions put to him in respect of his statements before the police but even after giving due allowance to such question, the prosecution story of assault upon the deceased does not suffer in any significant manner and as discussed earlier, the deposition of the informant and P.W.7 as eye witness account of the occurrence is fully reliable. No questions have been put to the informant or P.W.7 in respect of their earlier statements before the police which may enable the defence to claim prejudice due to non-examination of the I.O. as a witness during trial. 13. Thus, on proper consideration of all the facts, circumstances and the submissions advanced on behalf of the appellants we find that the prosecution has succeeded in establishing the charge against the appellants beyond reasonable doubts. 13. Thus, on proper consideration of all the facts, circumstances and the submissions advanced on behalf of the appellants we find that the prosecution has succeeded in establishing the charge against the appellants beyond reasonable doubts. There is no good reason to interfere with the impugned judgment and order. The appeal is therefore, dismissed.