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2014 DIGILAW 1073 (PAT)

Wakil Rai v. The State of Bihar

2014-10-17

JITENDRA MOHAN SHARMA, NAVANITI PRASAD SINGH

body2014
Judgment Navaniti Prasad Singh, J. These three appeals are by the six appellants who have been convicted by judgment dated 03.04.1992 and sentenced by order dated 10.04.1992 by the learned 4th Additional Sessions Judge, Saran at Chapra in Sessions Trial No.411 of 1989. The appellant-Parsuram Rai has been sentenced for an offence under Section-302 of the Indian Penal Code (hereinafter in short ‘IPC’) and rest of the appellants have been sentenced under Section-302/149 and Section-342 IPC. The appellants Parsuram Rai, Raj Ballam Rai and Ramayan Rai have further been sentenced under Section-324 IPC. All the appellants have been sentenced to life imprisonment and various others terms for the offences as noted above. The sentences were ordered to run concurrently. 2. The appellants-Wakil Rai, Ramayan Rai and Parsuram Rai are own brothers. The appellant-Ashok Rai, Sheo Kumar Rai and Raj Ballam Rai are close agnates. The prosecution case is based upon the fardbeyan of informant, Hira Lal Rai (P.W.7), as recorded at his house, inter alia, alleging that his daughter being ill his elder brother Mohan Rai, the deceased, who lives separately in the village, had come to see her. When Mohan Rai was returning by the path adjacent to the house of the appellant-Wakil Rai, Wakil Rai and others, who were busy in transplanting paddy seedlings, came and a quarrel started with regard to traversing Wakil Rai’s land. As the quarrel escalated, other appellants came from their houses variously armed and circled Mohan Rai (deceased) who tried to escape, Wakil Rai held him from his back and Parsuram Rai gave a sword blow on the front right hand side of Mohan Rai because of which Mohan Rai fell down. He was then carried by the prosecution party, who had also arrived there, but he died. In the fardbeyan itself it is stated that the path to the house of Hira Lal Rai (informant) passes through the front of the house of appellant-Wakil Rai and on his land. This path is for which Wakil Rai had been in past also telling people not to use which led to a Panchayati as well and it is because of this dispute that Mohan Rai was killed. Police registered a first information report and immediately they were able to arrest Wakil Rai and Parsuram Rai. This path is for which Wakil Rai had been in past also telling people not to use which led to a Panchayati as well and it is because of this dispute that Mohan Rai was killed. Police registered a first information report and immediately they were able to arrest Wakil Rai and Parsuram Rai. Wakil Rai was found injured and referred by the police to the doctor, whereas Parsuram Rai, when brought in jail, was examined by the jail doctor who found injuries. Upon conclusion of investigation, charge-sheet having been filed and cognizance having been taken, the case was committed to the Court of Sessions. The appellants pleaded not guilty and requested for being tried. They were tried, convicted and sentenced as stated above. Hence, these appeals. 3. In order to establish its case, the prosecution has examined 14 witnesses. It may be mentioned that so far as witnesses are concerned, P.W.1-Uday Kumar Rai, P.W.2-Deonath Rai, P.W.3-Mewalal Rai, P.W.4-A- Ramnath Rai, P.W.5-Munaki Devi, P.W.7-Hira Lal Rai (informant) and P.W.8-Rukamani Devi are closed relatives inasmuch as P.Ws.1, 2 & 4-A are the sons of the deceased. P.W.5 is the wife of the deceased. P.W.7, the informant is own brother of the deceased. P.W.8 is the wife of the informant and P.W.4-Kripal Rai is a close agnate. Before proceeding further, we may note one submission as made on behalf of the appellants. He submitted that all the witnesses, as noted above, being close relatives, the Court should not rely upon their evidence as they are all interested witnesses. We are afraid, we are unable to accept this contention. The evidence is that it was a very small village having only 10 to 15 houses. In such a small place who else will be a witness except who are residing there. We do not find any reason to discard the evidence of the prosecution on this plea alone. The evidence of these prosecution witnesses is consistent. They have all said that the deceased Mohan Rai had gone to the house of the informant, Hira Lal Rai to see his ailing one year daughter. While returning by the village path, one has to cross the house of the appellant-Wakil Rai and the land claimed by him. The evidence of these prosecution witnesses is consistent. They have all said that the deceased Mohan Rai had gone to the house of the informant, Hira Lal Rai to see his ailing one year daughter. While returning by the village path, one has to cross the house of the appellant-Wakil Rai and the land claimed by him. The prosecution evidence is also consistent that Wakil Rai had all along been claiming the land in front of his house as his land and had been trying to restrain other persons from trespassing and using that as village path. The prosecution evidence is also consistent that for past four months Wakil Rai had enclosed the said land by picket fence leaving only a very small portion. The prosecution evidence is also consistent that when Mohan Rai was returning, Wakil Rai and others, who were transplanting paddy seedlings, saw him. He and others, ultimately, came and surrounded Mohan Rai and quarrel started with regard to trespass on the land. This escalated and hearing this others including other family members of Wakil Rai then went to the house, which was all adjacent, picked up Lathi, Bhala and sword came and attacked Mohan Rai. Parsuram Rai gave a sword blow fatally injuring Mohan Rai. When the two sons of Mohan Rai i.e. Deonath Rai (P.W.2) and Ramnath Rai (P.W.4-A) tried to intervene they were also assaulted. When the wife of the deceased Munaki Devi (P.W.5) tried to intervene she was also beaten. Mohan Rai succumbed to his injuries immediately. The prosecution evidence is also consistent that no steps were taken to inform the police for quite sometime. The Investigating Officer, on having heard about the death of Mohan Rai, suo motu came there and recorded the statement. The Investigating Officer then admits that immediately after recording the statement he went to the house of Wakil Rai and found some of the appellants i.e. Wakil Rai and his brother Parsuram Rai and they were arrested. Allegedly, Lathi, Bhala and the sword, having bloodstains, were also recovered from the house. 4. Learned counsel for the appellants draws our attention to the fact that consistently the prosecution witnesses have accepted that they had seen at that very time itself the injuries on the person of the appellant-Wakil Rai and the appellant-Parsuram Rai, who were both bleeding. Allegedly, Lathi, Bhala and the sword, having bloodstains, were also recovered from the house. 4. Learned counsel for the appellants draws our attention to the fact that consistently the prosecution witnesses have accepted that they had seen at that very time itself the injuries on the person of the appellant-Wakil Rai and the appellant-Parsuram Rai, who were both bleeding. He submits that in the fardbeyan it is not stated as to how the appellants got the injuries. The deposition of the doctor, Dr. Mahadeo Prasad (P.W.9) is that he has examined P.W.2-Deonath Rai and P.W.4-A-Ramnath Rai as also examined the appellant-Wakil Rai on the same day. So far as the appellant-Parsuram Rai is concerned, he was examined by the jail doctor, D.W.1-Dr. Mahesh Prasad Singh having found injury. 5. Learned A.P.P. points out from the depositions of the prosecution witnesses itself that the injuries on both persons have been duly explained by the prosecution witness. So far as injury on Wakil Rai is concerned, it was specifically stated that as he was holding the deceased, Mohan Rai along his waist from back when he was assaulted by Parsuram Rai by sword and in the same stroke injuries were caused on the body of the Wakil Rai. Similarly, Parsuram Rai also hurt by others. In our view, it is not a case where prosecution has ignored and not explained the injuries on the persons of the accused. They have not only acknowledged the injuries but they have duly explained them. Thus, this does not inure to the benefit of the appellants. Lastly, it has been submitted on behalf of the appellants that though the appellants may be liable for culpable homicide they cannot be convicted for culpable homicide amounting to murder. 6. We have given our anxious considerations to the aforesaid and see some force in this argument. From the evidence of the prosecution, as stated above, the facts relevant for this issue would be that the prosecution admits right from the fardbeyan to the depositions of the private witnesses that there had been a pre-existing dispute with regard to the land in front of the house of the appellant-Wakil Rai. He claimed it to be his land and protested on its trespass. He had even erected a picket fence there. All parties i.e. prosecution and the defence were aware of this dispute. He claimed it to be his land and protested on its trespass. He had even erected a picket fence there. All parties i.e. prosecution and the defence were aware of this dispute. Prosecution evidence itself is that when Mohan Rai (deceased) was returning through that disputed land Wakil Rai and others were busy in their adjacent paddy field transplanting paddy seedlings from where they saw Mohan Rai crossing his land. First these two facts would show that there was no premeditation of any kind on part of the accused persons to harm or hurt the deceased. Then, as discussed above, Wakil Rai came and started quarreling with Mohan Rai when other family members also joined. It is this quarrel that suddenly got escalated and went out of hand resulting in use of weapons brought from the adjacent houses. From this, it is clear that the whole incident was spontaneous and got out of hand. 7. In our view, it would fall under Exception-IV of Section-300 IPC. The appellants could not be convicted for an offence of culpable homicide amounting to murder i.e. under Section 302 IPC but would be liable to be convicted for offence of culpable homicide, not amounting to murder, under Section-304 Part-II IPC as death was not actually intended. We alter the conviction from Section-302 and 302/149 IPC to Section-304 Part-II IPC and 304 Part-II/149 IPC in the facts aforesaid. We are cognizant of the fact that the appellants are not criminals. They are virtually a family trying to assert their right and exceed their right to defend their property. So far as Sections-342 and 324 is concerned, on the facts noted above, we are not inclined to interfere. Thus, we alter the conviction under Section-302 IPC in respect of Parsuram Rai to Section-304 Part II and conviction of rest of the appellants under Section-302/149 IPC to Section-304 Part-II/149 IPC. No prejudice would be caused to the appellants in this regard because they were all along aware of the charge of culpable homicide as against them. 8. Now, coming to sentence. The occurrence is said to have taken place in 1988 i.e. 26 years back. The appellants were young and all the appellants were taken into custody immediately. The appellant-Parsuram Rai remained in custody for over two years and was released only after all the eye witnesses had been examined by the Trial Court. 8. Now, coming to sentence. The occurrence is said to have taken place in 1988 i.e. 26 years back. The appellants were young and all the appellants were taken into custody immediately. The appellant-Parsuram Rai remained in custody for over two years and was released only after all the eye witnesses had been examined by the Trial Court. All the appellants had to surrender when these appeals were filed and have further remained in custody. Considering the aforesaid and the passage of time and the nature of overt act, which was committed at the spur of the moment, the sentence of period undergone in respect of each one of them would suffice the ends of justice. They would consequently not be required to surrender. 9. Accordingly, with the aforesaid modification in the conviction and sentence as aforesaid, these appeals stand dismissed. Appeals dismissed.