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2013 DIGILAW 1434 (PAT)

Ramji Rai v. State of Bihar

2013-12-11

ANJANA PRAKASH

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JUDGMENT Smt. Anjana Prakash, J.- The appellant of Cr. Appeal (SJ) No. 314 of 2001 has been convicted under Section 307/34, IPC whereas the appellant of Cr. Appeal (SJ) No.364 of 2001 has been convicted under Section 307. IPC and sentenced to RI for five years and a fine of Rs.3,000/- and nine years and a fine of Rs.5,000/- respectively by the 3rd Additional Sessions Judge, Begusarai in S.Tr. No. 10 of 1991 by judgment and order dated 18.8.2001. 2. The case of the prosecution according to the Informant, Rambilas Rai, PW 5, the father of the injured is that on the night of 7.10.1989 at 12 P.M. suddenly he woke up on the hearing of sound of firing. He himself was sleeping in the bathan of the temple whereas his son Shyam Rai @ Manoranjan Rai was sleeping on the roof of the temple of Lord Shiva. When he woke up he saw the accused persons jumping from the roof of the temple and running away. On inquiry made by the Informant, Phulchand Rai stated that the appellant, Bhuloo Rai had fired at his son with the assistance of the other co-accused. Thereafter, the injured Shyam Rai was brought down from the terrace and taken to the hospital where he was given treatment. The injured had sustained injury on the head. 3. During trial the prosecution examined nine witnesses. PW 1, Vivekanand Rai and PW 2, Shankar Prasad Yadav are formal witnesses. 4. PW 3, Ramanuj Rai has supported the factum of the occurrence but he has declined to have seen the accused persons. 5. PW 4, Ham Kumar Rai did not support the case of the prosecution on the point of identification of the appellants and, therefore, he was declared hostile. 6. PW 5, Ram Vilas Rai is the informant he stated that on the night of occurrence when he woke on the sound of firing on inquiry from one Phoolchand Rai he learnt that his son had been fired at by appellant, Bhuloo Rai. He also saw the appellants fleeing away from the place of occurrence. He then climbed on roof of the temple and brought down his son who had sustained injury on the head he took him to the hospital where he was treated. It appears that the source of his knowledge was Phoolchand Rai (PW 8) who is a tendered witness. He also saw the appellants fleeing away from the place of occurrence. He then climbed on roof of the temple and brought down his son who had sustained injury on the head he took him to the hospital where he was treated. It appears that the source of his knowledge was Phoolchand Rai (PW 8) who is a tendered witness. Hence, his evidence on the point of firing by the appellant, Bhuloo Rai has no value. 7. PW 6, Shyam Rai @ Manoranjan Rai is the injured himself. He gave a graphic description of the manner in which the occurrence had taken place. He stated that on the night of occurrence when he was sleeping on the terrace of the temple along with PW 8, Phoolchand Rai he suddenly woke up and saw a pistol being pressed on his temple by the appellant, Bhuloo Rai. He attempted to run away at which the rest of the accused persons caught hold of him and pinned him down. They were also holding guns in their hands. He was then fired at appellant, Bhuloo Rai on the temple. The accused persons then ran away firing their respective fire-arms. He further stated that his father was informed by Phoolchand Rai that appellant, Bhuloo Rai had fired at him. He also informed his father and other witnesses about this occurrence. He stated that he had met the Investigating Officer 4-5 months after he returned from his treatment at Patna. His attention was drawn to his earlier statement that he had not stated before the Investigating Officer that appellant, Bhuloo Rai had pressed his pistol on his right temple and that when he wanted to run away the rest of the appellants caught him and then the appellants shot at his temple from a close distance. He had also not stated that the appellants had run away firing their respective fire-arms as also on the sound of firing his father had come and he had been disclosed about the occurrence by Phoolchand Rai and himself. 8. PW 7, Dr. Ram Ashray Singh is the Medical Officer who examined the injured and found two lacerated wounds on the right temporal region with charring margin. A bullet was removed from the head. 9. PW 8, Phoolchand Rai is the source of information of the Informant has been tendered. 10. 8. PW 7, Dr. Ram Ashray Singh is the Medical Officer who examined the injured and found two lacerated wounds on the right temporal region with charring margin. A bullet was removed from the head. 9. PW 8, Phoolchand Rai is the source of information of the Informant has been tendered. 10. PW 9, Paras Nath Singh is the Investigating Officer who has given very cryptic evidence in Court However, in his cross-examination he stated that he had noted that there was a bamboo ladder to go up to the terrace of the temple but, had not measured the height of the terrace. He, however, noted that there was dense' population around temple. 11. Thus, on a fair analysis of the evidence on record, I find that apart from PW 6 there is no eye-witness to the occurrence. The evidence of PW 5 i.e. the Informant is of no value except on the point of identification to the extent that he had seen the appellants jumping from the roof. First of all it is not probable that at 12 P.M. when suddenly woken a person would be so alert so as to be able to identify anyone. Secondly the Informant has not disclosed about the source of identification and thirdly when he himself has stated that he had gone to the P.O. on hearing sound of firing he could not have been in a position to see the appellants fleeing away since by then the appellants would have fled away. 12. From the evidence of PW 6, I find that he has stated that while he was sleeping he suddenly felt pressure near his temple meaning thereby that the appellants had ample opportunity to fire at him while he was asleep. There was no reason to wake him up and then fire at him so as to enable him and the persons sleeping next to him to identify them. 13. Hence, I am inclined to reject the evidence of PW 6 also on the point of identification. Moreover, the examination of PW 6 having taken place more than four to five months after the institution of the case is another lacuna in the prosecution case which creates a reasonable doubt in the mind of the Court. 14. 13. Hence, I am inclined to reject the evidence of PW 6 also on the point of identification. Moreover, the examination of PW 6 having taken place more than four to five months after the institution of the case is another lacuna in the prosecution case which creates a reasonable doubt in the mind of the Court. 14. Hence giving benefit of doubt to the appellants, the appeals are allowed and the order of conviction and sentence passed against the appellants on 18.8.2001 by the 3rd Additional Sessions Judge-Begusarai in S.Tr. No. 10 of 1991 is set aside. The appellants are discharged of the liability of their bail bonds. Appeal allowed.