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2013 DIGILAW 638 (PAT)

Ram Awadhesh Rai v. State of Bihar

2013-05-17

HEMANT KUMAR SRIVASTAVA

body2013
HEMANT KUMAR SRIVASTAVA, J.:–Heard learned counsel for the appellants, learned Addl. Public Prosecutor for the State as well as learned counsel appearing for the informant and perused the record. 2. Both the above mentioned criminal appeals have arisen out of common judgment of conviction dated 15.5.2001 and order of sentence dated 23.5.2001 passed by learned Addl. Sessions Judge III, Begusarai in Sessions trial no. 69 of 1992/37 of 1993 by which and whereunder learned Addl. Sessions Judge III, Begusarai convicted the appellants in Cr. Appeal no.167/2001 for the offence punishable under section 304 part II read with section 149 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for seven years each and to pay a fine of Rs 3,000/- each or in default of payment of fine to undergo R.I. for four months whereas appellant no.5, namely, Budhan Rai was convicted for the offence punishable under section 307 of the IPC and was sentenced to undergo rigorous imprisonment for seven years and to pay a fine of Rs 3,000/- and in default of payment of fine to undergo R.I. for four months and appellants were also convicted for the offence punishable under section 307 read with section 149 of the IPC and were sentenced to undergo rigorous imprisonment for five years each and to pay a fine of Rs 2,000/- and in default to undergo R.I. for three months and the appellant in Cr. Appeal no.179/2001 was convicted for the offences punishable under section 304 Part II and section 307 read with section 149 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for nine years and to pay a fine of Rs 5,000/- under section 304 (II) of the IPC and in default he was ordered to undergo further R.I. for six months. All the above stated sentences were ordered to run concurrently. Since both the appeals have arisen out of common judgment of conviction and order of sentence, the above stated both criminal appeals are being disposed of by this common judgment. 2. All the above stated sentences were ordered to run concurrently. Since both the appeals have arisen out of common judgment of conviction and order of sentence, the above stated both criminal appeals are being disposed of by this common judgment. 2. In brief, the prosecution case, is that P.W. 5, Deepak Kumar Rai gave his fardbeyan to SI Sri.M.D. Ansari of Samho police station on 7.8.1991 at 3.15 p.m. in presence of one Gangotari Choudhary, Sarpanch of his village, to this effect that on the same day at about 10 a.m. his mother ( P.W.4) demanded her steel Katora from Ranka Devi which led to an altercation between them and after that above stated Ranka Devi called her family members who came there armed with lathi, danta, brick, stone, bhala etc. and started assaulting his mother by entering into his house. His mother raised alarm which attracted his father and brother Pramod Kumar who went running in the court- yard but the family members of Ranka Devi assaulted them with brick, stone, lathi, bhala etc. He further stated that the appellants Ram Awdheh Rai, Ram Kumar Rai @ Lutan Rai and Ramcharitra Rai overthrew his father and started pressing his neck and the appellant Sanjay Rai started assaulting on his left Panjara with stone. His father, any how, got released himself and ran from there but he fell down near bangla and became unconscious and died instantaneously. He further stated that the appellant Budhan Rai hurled bhala causing injury on the head of his elder brother. His brother was assaulted by the appellants with lathi and similarly, his mother was also assaulted by the appellants. The aforesaid occurrence was witnessed by his Fufa, namely, Deo Sharan Sharma, and Koso Rai as well as some other witnesses. He claimed that all the appellants, having formed unlawful assembly, entered into his house and assaulted his mother, brother and father as a result of which his father died then and there. He further stated that his brother was taken to Surajgarha for treatment. 3. He claimed that all the appellants, having formed unlawful assembly, entered into his house and assaulted his mother, brother and father as a result of which his father died then and there. He further stated that his brother was taken to Surajgarha for treatment. 3. On the basis of the aforesaid fardbeyan, Naya Nagar P.S. case no.34/1991 under section 302 and other minor sections of the Indian Penal Code was registered on 8.8.1991 accordingly, formal FIR was prepared for the offences punishable under sections 147, 148, 149, 302, 323, 307, 408 of the IPC against the appellants on the same day and formal FIR as well as relevant documents were put up before learned Chief Judicial Magistrate on 9.8.1991. The police took the charge of investigation and after completion of investigation, police submitted charge sheet for the offences punishable under sections 147, 149, 337, 304 of the Indian Penal Code against the appellants. The cognizance of the offences was taken and the case was committed to the court of sessions, in usual way. 4. Initially, appellants were jointly charged for the offence punishable under section 304 read with section 149 of the IPC and the appellant- Sanjay Rai was, separately, charged for the offence punishable under section 304 of the IPC but later on, all the appellants were charged for the offences punishable under section 302 read with section 149 and section 307 read with section 149 of the IPC and the appellant Sanjay Rai was separately charged for the offence punishable under section 302 of the IPC and similarly, the appellant Budhan Rai was separately charged for the offence punishable under section 307 of the IPC. The charges were denied by the appellants and claimed to be tried. 5. In course of trial, prosecution examined, altogether, twelve witnesses and besides it, proved several documents. The statements of the appellants were recorded under section 313 of the Cr.P.C in which they reiterated their innocence. 6. The defence has also brought some documents on the record. 7. From perusal of the trends of cross-examination of the prosecution witnesses as well as statements recorded under section 313 of the Cr.P.C coupled with the documents brought on the record on behalf of the appellants, it is clear that defence of the appellants was total denial of the prosecution story and they claimed their false implication. 8. 7. From perusal of the trends of cross-examination of the prosecution witnesses as well as statements recorded under section 313 of the Cr.P.C coupled with the documents brought on the record on behalf of the appellants, it is clear that defence of the appellants was total denial of the prosecution story and they claimed their false implication. 8. The learned trial court, having analysed the materials available on the record, convicted and sentenced the appellants in the manner as stated above. 9. Learned counsel appearing for the appellants challenged the impugned judgment of conviction and sentence order arguing that P.W.7, S.M. Baquer, who did post mortem on the corpus of the deceased of this case, admitted at para 2 of his deposition that the injury found on the person of the deceased was not sufficient to cause death of the deceased and he could not reach at the definite conclusion as to how the deceased died. Learned counsel for the appellants further submitted that if the above statement of P.W. 7 is accepted, then no case under section 304 of the IPC is made out and, at best, the appellants could have been convicted for the offence punishable under section 323 of the IPC. 10. Learned counsel for the appellants further submitted that, as a matter of fact, appellants were falsely implicated by the informant and his family members due to previous enmity. To fortify his contention, he referred the deposition of P.W.1 and submitted that P.W.1, at para 29 of his cross-examination admitted that his statement, for the first time, was recorded by the police of Surajgarha police station and when his statement was recorded at Surajgarha hospital his Fufa Deo Sharan Sharma was also present there. Learned counsel for the appellants also referred the deposition of P.W.11, the first Investigating officer of this case, who stated that he had recorded the statement of P.W.1 at his police station and furthermore, at para 9 of his cross-examination, he admitted that fardbeyan of P.W.1 was recorded by the police official of Surajgarha police station and the said fardbeyan was incorporated by him in para 16 of the case diary. Learned counsel for the appellants further submitted that the prosecution, deliberately, suppressed the aforesaid fardbeyan of P.W.1 because in the aforesaid fardbeyan, P.W.1 had not named all the appellants and made general statement of assault against some appellants. Learned counsel for the appellants further submitted that the prosecution, deliberately, suppressed the aforesaid fardbeyan of P.W.1 because in the aforesaid fardbeyan, P.W.1 had not named all the appellants and made general statement of assault against some appellants. He further submitted that the aforesaid fardbeyan was first information in respect of alleged occurrence and, therefore, subsequent statement of the informant of this case is hit by section 162 of the Cr. P.C and the aforesaid statement can only be used for corroboration or contradiction. 11. Learned counsel for the appellants further submitted that P.W.1 had not stated in his first statement that the appellant Budhan Rai hurled bhala blow to him and he stated that he was assaulted by some appellants with lathi and, therefore, story of hurling bhala against appellant Budhan Rai was developed and improved by the prosecution later on and in the aforesaid circumstance, the above stated story of the prosecution is not reliable and appellant Budhan Rai could not have been convicted for the offence punishable under section 307 of the IPC and similarly, rest appellants could not have been convicted for the offence punishable under section 307 read with section 149 of the IPC. He further submitted that several contradictions and omissions were made by P.W.1 as well as other prosecution witnesses in course of trial and the attention of the aforesaid prosecution witnesses was, specifically, drawn in course of trial and when Investigating officer was examined, he was confronted with the aforesaid contradictions and omissions and Investigating officer admitted the aforesaid contradictions and omissions and, therefore, the prosecution story, as propounded, is not believable and the appellants are entitled to get the benefit of doubt. 12. On the other hand, learned Addl. Public Prosecutor appearing for the State assisted by learned counsel for the informant, supported the impugned judgment of conviction and order of sentence arguing that almost all eye witnesses supported the prosecution case and they, specifically, stated that the appellants, mercilessly, assaulted P.W.1 as well as mother of the informant and furthermore, in course of occurrence, appellant Sanjay Rai assaulted the deceased with stone as a result of which the deceased died then and there. Learned counsel for the informant also submitted that objective features of the place of occurrence also support the prosecution case as in course of investigation, Investigating officer found stone and other materials and the recovery of the aforesaid stone and other materials lead support to the prosecution story. Learned counsel for the informant also submitted that injury reports and x- ray plates of injured witnesses of this case were brought on the record and doctor also supported this fact that P.W.1 as well as his mother had sustained injury on the alleged date of occurrence. He further submitted that, no doubt, doctor ( P.W.7) stated that injury found on the person of the deceased was not sufficient to cause his death in ordinary course of nature but it is settled principle of law that ocular evidence shall prevail on medical evidence and even if post mortem report does not disclose the cause of death of the deceased, then also, the learned trial court rightly convicted the appellants having relied upon ocular evidences adduced on behalf of the prosecution. 13. Before discussing the other materials available on the record, I would like to discuss the evidence of P.W.7, Dr. S.M. Baquer who did post mortem on the corpus of the deceased of this case. This witness stated that on 7.8.1991 (in exhibit 3 post mortem report the date of post mortem examination has been mentioned as 8.8.1991) he was posted at Sadar hospital, Begusarai as C.A.S and on that date at about 8.30 a.m. he did post mortem examination of the deceased Mahendra Rai and found following antemortem injury on his person, swelling with bruises 3”x 2½” on the lower part of left flank and on dissection there was slight bleeding and the aforesaid injury was simple in nature caused by hard and blunt substance. He further stated that time elapsed since death within 48 hours duration. So far as cause of death of the above stated deceased, this witness stated that the above mentioned injury which was so trivial in nature that in ordinary course, it was not sufficient to cause death and no definite opinion can be given regarding cause of death. Viscera were kept preserved in a glass jar containing sliva etc. for chemical examination after due requisition from the concerned police in order to send the same to the Director Forensic Sciences. Viscera were kept preserved in a glass jar containing sliva etc. for chemical examination after due requisition from the concerned police in order to send the same to the Director Forensic Sciences. At para 3 of his examination-in-chief, this witness stated that injury found on the person of the deceased may cause by a blow of heavy stone and if a person is suddenly injured by a heavy piece of stone that may cause his death. This witness proved post mortem report of the deceased as exhibit 3. 14. From perusal of the deposition of this witness as well as exhibit 3, post mortem report, it is clear that P.W.7 admitted in his examination-in-chief as well as in exhibit 3 that injury found on the person of the deceased was not sufficient to cause his death in ordinary course of nature although this witness stated at para 3 of his examination-in-chief that injury found on the person of the deceased might have been caused by a stone and if a person is suddenly sustained injury by a heavy piece of stone, the said injury might cause death of the aforesaid person. Even if the aforesaid statement of this witness is accepted to be true, then also, this witness was not sure at the time of conducting post mortem on the dead body of the deceased that the injury found on the person of the deceased was sufficient to cause death of the deceased. Therefore, in my view, one of the important ingredients to constitute an offence either under section 299 or section 300 of the IPC is completely lacking in this case and learned counsel for the appellants rightly submitted that the appellant Sanjay Rai could not have been convicted for the offence punishable under section 304 part II of the IPC and similarly, rest appellants could not have been convicted for the offence punishable under section 304 part II read with section 149 of the IPC. 15. P.W.1 admitted in his deposition that for the first time, he had made statement before Surajgarha police in Surajgarha hospital on the date of alleged occurrence. Admittedly, fardbeyan of P.W.5 was recorded after recording the aforesaid fardbeyan of P.W.1. 15. P.W.1 admitted in his deposition that for the first time, he had made statement before Surajgarha police in Surajgarha hospital on the date of alleged occurrence. Admittedly, fardbeyan of P.W.5 was recorded after recording the aforesaid fardbeyan of P.W.1. It is obvious from the aforesaid fact that first information report regarding the alleged occurrence was given by P.W.1 and after his statement, fardbeyan of the present case was recorded and, therefore, in my view, learned counsel for the appellants rightly submitted that fardbeyan of P.W.5 is hit by section 162 of the Cr.P.C. 16. P.W.1 at para 28 of his cross-examination, stated that he had made statement before the police disclosing this fact that the appellants entered into his house and the appellants Ram Awadhesh Rai and Rajniti Rai @ Lalan Rai and Ramcharitra Rai overthrew his father and after that the appellant Sanjay Rai started assaulting on left Panjara of his father with stone. He further stated that he had made statement before the police that the appellant Budhan Rai had given bhala blow causing injury on his head. This witness denied this fact that before Surajgarha police he had made statement that all the appellants assaulted him with lathi and he had not disclosed about assault of his father and mother. 17. P.W.11 stated at para 10 of his cross-examination that he had recorded the statement of P.W. 1 at the police station but the aforesaid witness had not stated before him that the appellants Ram Awadhesh Rai and Rajniti Rai @ Lalan Rai and Ramcharitra Rai overthrew his father and after that the appellant Sanjay Rai assaulted on left Panjara of his father. P.W.11 also admitted this fact that he incorporated fardbeyan of P.W.1 in case diary which had been sent by Surajgarha police station and in the aforesaid fardbeyan, P.W.1 had not stated that the appellant Budhan Rai had given bhala blow causing injury on his head. Therefore, it is obvious that P.W.1 improved his statement in course of trial and the aforesaid materials contradictions and omissions shall go against the prosecution case. 18. P.W 2, Deo Sharan Sharma claimed himself to be eye witness of alleged occurrence and supported the fardbeyan of P.W.5. This witness stated that after the occurrence, P.W.1 was taken to Surajgarha hospital where his treatment was done. 18. P.W 2, Deo Sharan Sharma claimed himself to be eye witness of alleged occurrence and supported the fardbeyan of P.W.5. This witness stated that after the occurrence, P.W.1 was taken to Surajgarha hospital where his treatment was done. This witness further stated that when P.W.1 was being carried to Surajgarha hospital, he was in unconscious stage. This witness admitted that the deceased Mahendra Rai was his brother-in-law. This witness further stated that on the alleged date of occurrence, he had gone to the house of the deceased Mahendra Rai. This witness also stated that when he reached on the place of occurrence, P.W.3 Koso Rai also reached there. This witness claimed that he had made statement before police that he had seen all the appellants carrying lathi, bhala and brick. This witness also claimed that he had made statement before police that the appellants Ram Awadhesh Rai and Rajniti Rai @ Lalan Rai caught hold of the deceased whereas appellant Sanjay Rai assaulted with stone on the Panjara of the deceased and similarly, he had made statement before police that the appellant Budhan Rai gave bhala blow to P.W.1 causing injury on his head. 19. P.W.3, Koso Rai stated that having heard noise when he reached at the Darwaja of the aforesaid Mahendra Rai, he saw the appellants fleeing from there and he also found Mahendra Rai lying dead and when he went inside the court- yard of the informant, he found P.W.1 lying in injured condition and at that time, he was unconscious. He further stated that he came to know about alleged occurrence from P.W.5, the informant of this case. This witness stated at para 8 of his cross-examination that he also went to the hospital along with injured P.W.1. Furthermore, this witness admitted at para 9 of his cross-examination that he as well as others along with P.W.1 left their village at about 12.30 p.m. of the alleged occurrence and they reached at Surajgarha hospital at about 1.30 p.m. At para 10 of his cross-examination, this witness admitted that police had enquired from him about alleged occurrence and recorded his statement at Surajgarha. The attention of this witness was drawn towards his previous statement recorded under section 161 of the Cr.P.C to which he stated that he had made statement before police to this effect that he came to know about the alleged occurrence from P.W.5 20. P.W.4, Babban Devi is injured of this case as well as mother of the informant. This witness supported the prosecution story and stated that in course of the aforesaid occurrence, she, too, sustained injury. This witness was examined by Dr. Birendra Kumar Mishra (P.W.9) who stated that on 15.8.1991, he examined the witness and found bruise on the left lateral portion of chest 4cm x 2cm and bruise 2cm x 2cm on the chest of just the middle and both the aforesaid injuries were simple in nature caused by hard and blunt substance. This witness proved injury report of P.W.4. 21. P.W.5, Deepak Kumar Rai is the informant of this case. This witness supported his fardbeyan. This witness admitted at para 27 of his cross-examination that some persons were sent to police station to give information regarding alleged occurrence but he could not say the names of the aforesaid persons. This witness admitted that the police came at about 3 p.m. and his statement was recorded. 22. P.W.6 is formal witness who proved his signature on inquest report. P.W.8 also proved as exhibit 4, the report of Forensic Science Laboratory. 23. P.W.9, Dr. Birendra Kumar Mishra examined P.W.1 on 7.8.1991 at about 12.25 p.m. and found three injuries on his person. Out of the aforesaid three injuries, two injuries were caused by sharp cutting weapon. The deposition of this witness reflects that on the alleged date of occurrence, P.W.1 had reached Surajgarha Primary Health Center at about 12.25 p.m. 24. P.W.10, Dr Janardan Prasad Singh proved x- ray plate and Radiologist report of P.W.1. 25. P.W.11 is the first Investigating officer of the case. This witness stated that on 7.8.1991 he, having got some rumour, went to the village of P.W.5 after making SD entry and recorded the statement of P.W.5. This witness proved fardbeyan of P.W.5 as exhibit 7. This witness prepared inquest report of the deceased and sent body of the deceased to Begusarai hospital for post mortem examination. He recorded further statement of P.W.5 and inspected the place of occurrence. This witness proved fardbeyan of P.W.5 as exhibit 7. This witness prepared inquest report of the deceased and sent body of the deceased to Begusarai hospital for post mortem examination. He recorded further statement of P.W.5 and inspected the place of occurrence. He found one stone and a piece of bamboo containing iron on its upper portion from the place of occurrence. He brought stone and piece of bamboo from the place of occurrence but in the midst of investigation, he handed over the charge of investigation to other Investigating officer. On being cross-examined by the defence, this witness stated that he had not prepared any seizure list in respect of recovery of stone as well as piece of bamboo. The attention of this witness was drawn towards previous statements of the prosecution witnesses. 26. On perusal of the entire evidences available on the record, I find that the prosecution suppressed fardbeyan of P.W.1 and furthermore, post mortem report, exhibit 3, reveals that injury found on the person of the deceased was not sufficient to cause death of the deceased and furthermore, I find that in fardbeyan of P.W.1 which had been recorded by the Surajgarha police official does not contain the allegation of assault by the appellants to the deceased and furthermore, in the further statement, P.W.1 had made general allegation against the appellants Budhan Rai, Sugga Rai, Ramanand Rai and he had not stated about participation of the rest appellants in the aforesaid crime. Furthermore, I find that the aforesaid fardbeyan of P.W.1 was recorded on 7.8.1991 at about 1.50 p.m. i.e. prior to recording of fardbeyan of P.W.5. Therefore, in the aforesaid circumstance, I am of the opinion that the appellant Sanjay Rai could not have been convicted for the offence punishable under section 304 part II of the IPC and similarly, rest appellants could not have been convicted for the offence punishable under section 304 part II read with section 149 of the IPC. Therefore, in the aforesaid circumstance, I am of the opinion that the appellant Sanjay Rai could not have been convicted for the offence punishable under section 304 part II of the IPC and similarly, rest appellants could not have been convicted for the offence punishable under section 304 part II read with section 149 of the IPC. Furthermore, I am of the opinion that the appellant Budhan Rai is entitled to get the benefit of doubt and he could not have been convicted for the offence punishable under section 307 of the IPC and similarly, other appellants could not have been convicted for the offence punishable under section 307 read with section 149 of the IPC but since all material witnesses stated that the appellants assaulted the deceased, P.W.1 and P.W.4 by means of lathi and, therefore, in the aforesaid circumstance, I am of the opinion that the appellants, at best, could have been convicted for the offence punishable under section 323 of the IPC. 27. Almost all prosecution material witnesses admitted this fact that the appellants are their next door neighbour of P.W.5 and admittedly, alleged occurrence took place in the year 1991 and the appellants in course of trial remained in jail custody for certain period. Therefore, in stead of sending the appellants behind the bar, I think it proper to sentence them to the period already undergone by them for the offence which is said to have been committed by them. 28. In view of the aforesaid discussions, both the aforesaid criminal appeals are partly allowed with modification in the sentence order as stated above.