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2014 DIGILAW 1021 (PAT)

Krishna Rai @ Kesho Rai v. The State of Bihar

2014-09-22

JITENDRA MOHAN SHARMA, NAVANITI PRASAD SINGH

body2014
Judgment Navaniti Prasad Singh, J. The two appellants, who are brothers, are aggrieved by the judgment of conviction and order of sentence dated 06.07.1991 and 08.07.1991 respectively as passed by the Sessions Judge, Saran at Chapra in Sessions Trial No.227 of 1987. They have been held guilty under Section-302/34 of the Indian Penal Code (hereinafter in short ‘IPC’) and convicted to life imprisonment. Appellant-Gonaur Rai has further been found guilty under Section-323 IPC for causing hurt to the informant and sentenced to further six months rigorous imprisonment. The sentences were ordered to run concurrently. 2. The first thing to be noted is that the informant is the own brother of the two appellants and the deceased was the eldest amongst four brothers. The prosecution story is based upon the fardbeyan of Shivji Rai (P.W.10), the brother of the deceased and the brother of the appellants, as recorded by Lal Bihari Rai, Investigating Officer (P.W.14), inter alia, alleging therein that on 06.12.1986 at about 12 noon when the informant was returning from his work to his home he saw the two appellants quarreling with the deceased Mundrika Rai, their eldest brother. The appellants then struck Mundrika Rai on the head with the ‘Pharsa’ and when he fell down they strangulated him by putting lathi across his neck and pressing it. When they ensured that he was dead they left him and escaped. On hearing the shouts several neighbours including Jagan Rai (P.W.2), Sudisht Rai (P.W.3) and Munshi Rai (P.W.5) came and saw the occurrence. It is further stated that when the informant tried to save his eldest brother Mundrika Rai, Gonaur Rai struck him with ‘Pharsa’ on his head. He was struck by lathi as well. Krishna Rai attacked on the head and Gonaur Rai struck with lathi. The reason for this incident was that the two appellants were demanding partition in property. Upon the F.I.R. being registered, the inquest report was prepared and the dead body was sent for postmortem. The informant was sent to the doctor for preparing injury report. Upon completion of investigation, charge-sheet was submitted against the appellants and after charges having been framed, the appellants having pleaded not guilty, they faced trial and convicted, as stated above. Hence, this appeal. 3. In order to substantiate the charges, the prosecution has examined 14 witnesses. The informant was sent to the doctor for preparing injury report. Upon completion of investigation, charge-sheet was submitted against the appellants and after charges having been framed, the appellants having pleaded not guilty, they faced trial and convicted, as stated above. Hence, this appeal. 3. In order to substantiate the charges, the prosecution has examined 14 witnesses. Defence has examined one witness i.e. Ramrati Devi, the widow of the deceased Mundrika Rai. Learned counsel for the appellants submits that from amongst the 14 prosecution witnesses all save and except the informant Shivji Rai (P.W.10) and one Butan Rai (P.W.4), who were allegedly witnesses to the occurrence, have turned hostile and they have not supported the prosecution version. So much so the wife of the deceased Mundrika Rai has appeared as D.W.1 and accused the informant himself of killing her husband. Two of the prosecution witnesses, namely, Kalawati Devi (P.W.7) and Jalim Rai (P.W.8) are daughter and son respectively of the deceased have also turned hostile and have supported the defence. The informant’s case is that it was the appellants who killed Mundrika Rai demanding partition in property and then assaulted him as well. The three i.e. Ramrati Devi (D.W.1) the widow of the deceased Mundrika Rai, Kalawati Devi (P.W.7) and Jalim Rai (P.W.8), the daughter and son respectively of the deceased, have joined to accuse him of having murdered her/their husband/father. Learned counsel for the appellants, thus, submits that in such a situation it would not be safe to uphold conviction of the appellants. Normally, it is not expected that the widow and the children of the deceased would challenge the prosecution itself. Thus, we have to see whether the prosecution is able to prove the case beyond reasonable doubt or not. 4. The sequence in which the prosecution witnesses have been examined is of some importance and, therefore, we would consider their evidence in the sequence in which they were produced in the Court. P.W.1 is Dr. B.N. Mishra who conducted the postmortem of Mundrika Rai, the deceased. He finds skull fracture at two places with haematoma underneath. He also finds fracture and blood clots in the neck. These injuries are prima facie consistent with the allegations as contained in the fardbeyan of the informant and his deposition in Court. 5. P.W.1 is Dr. B.N. Mishra who conducted the postmortem of Mundrika Rai, the deceased. He finds skull fracture at two places with haematoma underneath. He also finds fracture and blood clots in the neck. These injuries are prima facie consistent with the allegations as contained in the fardbeyan of the informant and his deposition in Court. 5. We then have P.W.2-Jagan Rai, who is mentioned in the F.I.R. as an eye witness, clearly states that he knows nothing about the incident as he was not in the village on the said day. He has been declared hostile. He denies having made any statement to the police. Similar is the case of P.W.3-Sudisht Rai, P.W.5-Munshi Rai, P.W.6-Gupteshwar Singh and P.W.9-Uttim Rai, all of them have been declared hostile. That leaves us with first P.W.4-Butan Rai. He supports the prosecution case but, in our view, he is not a reliable witness. The reason is that though he is immediate neighbour of the victim and is aware that the deceased and the informant are brothers, he figned ignorance whether the appellants and the deceased are brothers or not. This is impossible unless he is making a conscious effort to conceal the relationship. He knows about the details of the daughter of the deceased Kalawati Devi (P.W.7) being married and the ‘Gauna’ (second marriage) has not been performed but figned ignorance as to the relationship between the appellants and the deceased though he admits that they were living in the same house. This creates doubt about authenticity or reliability of what he is saying. Then, we have his admission that he works as truck khalasi (helper). He is given suggestion that appellant- Krishna Rai @ Kesho Rai had a truck in which this witness Butan Rai (P.W.4) had been employed as khalasi but had been dismissed having been caught stealing goods. For the aforesaid reasons, we are not inclined to accept his evidence as truthful and correct. 6. We then have the informant, Shivji Rai who comes as P.W.10. In his deposition he accepts that there had been a partition in the family in which he took a share and separated. Thus, he is living separately from the other three brothers, i.e., the deceased and the two appellants. 6. We then have the informant, Shivji Rai who comes as P.W.10. In his deposition he accepts that there had been a partition in the family in which he took a share and separated. Thus, he is living separately from the other three brothers, i.e., the deceased and the two appellants. He states that after the incident when people instigated the widow about her comfort and safety after the death of her husband, the widow and the children turned hostile. They apparently received the patronage of safety and comfort from the appellants and, therefore, they have resiled from the prosecution case, otherwise this witness reiterates what was said in the fardbeyan. 7. We then have the evidence of own daughter of the deceased, Kalawati Devi (P.W.7) and own son of the deceased of about 10 years Jalim Rai (P.W.8). Both have in categorical terms stated that it was their uncle, Shivji Rai (informant) who had in fact assaulted their father and wrongly lodged the F.I.R. against their other uncles i.e. the appellants. They have stated that the informant was demanding share in the little land that was left with the three brothers, having already taken a share and separated. This created disputes between the deceased and the informant for which the informant had assaulted the deceased and put the blame on the other two appellants. 8. It is submitted on behalf of the appellants that if the eldest brother Mundrika Rai was already staying with the appellants where was the dispute. The dispute was only with the informant Shivji Rai (P.W.10) who wanted some more shares in the land. Having killed the deceased, in order to escape the liability, he has blamed the appellants. We think that this is a plausible argument. 9. We then have P.W.14-Lal Bihari Ram, the Investigating Officer. He has given his objective finding as regards to the place of occurrence. He has also contradicted the statements as made by other P.Ws. before him under Section-161 Cr.P.C. and those being made in the Court. He admits that at no point of time did he examine or take the statement of the widow of the deceased. 10. Learned counsel for the appellants submits that this is something of great importance because why was the statement not taken from the widow of the deceased. before him under Section-161 Cr.P.C. and those being made in the Court. He admits that at no point of time did he examine or take the statement of the widow of the deceased. 10. Learned counsel for the appellants submits that this is something of great importance because why was the statement not taken from the widow of the deceased. Learned A.P.P. points out that probably this was so because as per the evidence of the informant at the time when the incident took place the wife of the deceased was not there. She had gone to collecting grass. 11. Having considered the matter, in our view, that is no explanation because the police was not only required to take the evidence of those who are witnesses to the incident but they are required to take statement of the witnesses as to the reason or the motive behind the incident. The widow of the deceased would have been the best witness. She could have given explanation whether there was any difference in the family with regard to distribution or partition of the property. Thus, non-examination of the widow by the police without any valid explanation raises serious doubts. 12. Thus seen, the prosecution stands only upon the evidence of the informant and whatever corroboration comes from P.W.4-Butan Rai but, as noticed above, we do not rely upon the evidence of Butan Rai (P.W.4), for the reasons already indicated above. That leaves the only version of P.W.10-Shivji Rai (informant) as against the evidence of the two children of the deceased i.e. P.W.7-Kalawati Devi and P.W.8-Jalim Rai along with their mother Ramrati Devi (D.W.1) who has accused the informant of the incident. 13. In this view of the matter, we are unable to hold that undisputedly it is the appellants who have committed the murder of their elder brother Mundrika Rai. It cannot thus be said that the prosecution is able to substantiate its case beyond reasonable doubt. 14. We have no option but to allow the appeal and set aside the conviction and sentence awarded to the appellants giving them benefit of doubt as we have seen that the prosecution has failed to establish its case. The appellants are discharged from their liabilities of bail bonds. Appeal is allowed.