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2014 DIGILAW 727 (PAT)

Hari Rai v. State of Bihar

2014-07-02

AMARESH KUMAR LAL, DHARNIDHAR JHA

body2014
ORAL JUDGMENT DHARNIDHAR JHA, J. The present Cr. Appeal arises out of judgment of conviction dated Ist February, 1991 passed by the learned 4th Additional Sessions Judge, East Champaran, Motihari in Sessions Trial No.56 of 1984/207 of 1987 by which the solitary appellant Hari Rai was held guilty of committing offence under Section 302 IPC while the other two accused, namely, Rameshwar Rai and Suren Rai were acquitted of the charges framed against them. The appellant was heard under Section 235 Cr.P.C on the 2nd day of February, 1991 and was directed to suffer rigorous imprisonment for life on account of having been convicted under Section 302 IPC. The appellant have come up before this Court in appeal to challenge the correctness of the findings and appropriateness of the order of sentence passed by the learned trial Judge. 2. The prosecution case in brief is that on 16.10.1983 at about 7.30 A.M. accused Rameshwar Rai was putting dung at the Darwaja of the deceased who was sitting there. The deceased protested which ensued into some exchange of hot words. Accused Rameshwar Rai called his sons Hari Rai and Suren Rai who came there with lathi and no sooner had they arrived, it was said, appellant Hari Rai dealt a lathi blow to the head of the deceased causing him to fall on the ground. It is stated that accused Rameshwar Rai snatched a wrist watch from the deceased while the accused persons were leaving the scene of occurrence. 3. As appears from the evidence, the deceased was rushed to Kesariya hospital where he was treated by P.W.10 Dr. Ramdayal Singh who found the following injuries on the injured Suraj Rai:- (i) One swelling 6”x4” on right side of chest in mid axillary line. (ii) One swelling 5”x3” on the right side of scalp. (iii) One lacerated wound 1”x 1/4"x1/2” on the right side of scalp and in the middle of the injury no.2. In the opinion of P.W.10 injury no.1 was simple as could be injuries no.2 and 3, but those injuries were opined to be dangerous to life. However, the injuries in the opinion of P.W.10 could have been caused by blows given by lathi. In the opinion of P.W.10 injury no.1 was simple as could be injuries no.2 and 3, but those injuries were opined to be dangerous to life. However, the injuries in the opinion of P.W.10 could have been caused by blows given by lathi. It appears that the statement of the deceased Suraj Rai was recorded by the Officer-in-Charge of Kesariya police station, i.e., P.W.9 Ram Janam Thakur and on that basis the FIR of the case (Ext-4) was drawn up. The fardbeyan of the deceased Sujraj Rai was marked Ext-3/1 on behalf of the prosecution. It further appears that P.W.9 S.I. Thakur Ramjanam came to the place of occurrence and found that some dung had been placed at the cattle shed of the deceased which was situated side by side that of the accused persons. He further found that the dung had been removed from the dump for being placed in front of the cattle shed of the deceased. P.W.9 recorded the statements of witnesses and after obtaining the injury certificates and the postmortem report and finding that the case required to be put into trial, sent up the three accused for their trial. 4. The defence of the accused persons is that they were innocent and had falsely been implicated in this case. During the course of trial, eleven witnesses were examined by the prosecution. P.W.1 Reshma Devi, P.W.2 Rampati Devi, the two daughters of the deceased supported the prosecution case as an eye witnesses. P.W.6 Jagarnath Rai happens to be the son of the deceased and he also supported the prosecution story as an injured witness on account of having been assaulted by the accused persons. P.W.3 Phul Mohammad Mian whose house was situated just by the side of the place of occurrence and who appears having seen the occurrence as per the evidence of P.Ws.1 and 2 were tendered for cross-examination whereas P.W.4 Bahadur Rai was declared hostile. P.W.5 Baiju Lal Rai was a witness of formal character. He was an Assistant Sub Inspector of Police who had recorded the fardbeyan of Baiju Lal Rai who had accompanied the deceased up to S.K.M.C.H., Muzaffarpur. P.W.8 Anil Kumar Jha was yet another police officer who had taken charge of investigation from P.W.9 Ram Janam Thakur who had not done anything in the investigation. 5. He was an Assistant Sub Inspector of Police who had recorded the fardbeyan of Baiju Lal Rai who had accompanied the deceased up to S.K.M.C.H., Muzaffarpur. P.W.8 Anil Kumar Jha was yet another police officer who had taken charge of investigation from P.W.9 Ram Janam Thakur who had not done anything in the investigation. 5. After considering the evidence of witnesses as noted above, the two accused persons, namely, Rameshwar Rai and Suren Rai were acquitted of the charges while appellant Hari Rai was held guilty of committing offence under Section 302 IPC and was, accordingly, convicted and sentenced. 6. When the case was called out, no one had appeared and we had requested Sri Abhimanyu Sharma, Advocate to assist us and after we had heard him in full and were about to deliver the present judgment Sri Pramod Mishra, Advocate also appeared and sought our permission to argue the appeal and we, accordingly, permitted him to do so. It was contended by Sri Sharma, the learned Amicus Curiae that the prosecution case was shrouded in mystery and it appears that an attempt was made in the very beginning to ensure that the case ended in conviction. This may be found very vividly coming out of many circumstances attending on the present case. The submission in the above regard was that the deceased as per doctor was not in a state of mental health to make any statement, but his fardbeyan was recorded by S.I. P.W.9 Ram Janam Thakur and FIR was registered on that basis on 16.10.1983 and the same having been dispatched to the nearest Magistrate on 17.10.1983 had reached Motihari district –headquarter of East Champaran on 22.10.1983, i.e., after five days of the dispatch of the document. In between another statement of P.W.5 Baiju Lal Rai was recorded in S.K.M.C.H. and that did not contain any story of any specific blow given by any particular accused. The submission was that the above contention could be appreciated in the light of the fact that the three witnesses, i.e., P.Ws.1,2 and 6 placed the prosecution story of a single blow given by the present appellant Hari Rai but the evidence of the doctor P.W.10 indicated as if there were two parallel wounds on the scalp which had resulted on account of the deceased being assaulted with lathi. The doctor who held postmortem examination, i.e., P.W.11 had found a stitched wound measuring 3” in length on the right parietal bone of scalp and on removal on the stitches had found fracture of the right parietal bone and presence of some haematoma in the area of 1”x1/2” beneath the fracture. The submission was that the story of single blow was not corroborated by the evidence of P.W.10 which indicated a different manner of occurrence. It was contended, as such, that the case was encapsuled by mysterious circumstances. 7. The learned Additional Public Prosecutor has resisted the submissions and has submitted that consistency was the hallmark of the evidence of three witnesses and it could not be said that the oral testimony was any way in conflict with the medical evidence. Submission, as such, was that the judgment of conviction was fit to be upheld. 8. We first want to point that the three witnesses, i.e., P.Ws.1, 2 and 6 who were examined by the prosecution were non-else than the daughters and son of the deceased. It is true that the witnesses had claimed their presence at the scene of occurrence and it is also true that they had given an eye witness, but on account of being related to the deceased and further due to no independent person coming forward to support the prosecution charges, we have approached their evidence with utter care and caution. We find that there indeed is a threat of consistency which runs through the evidence of P.Ws.1,2 and 6 but as regards the conviction of this appellant, the story is confined to a single blow which this appellant had allegedly given to the head of the deceased as a result of which he had fallen down. The witnesses have stated that the deceased had fallen by his side which proposition we are not going to accept, because a person who was so badly hit on his head as to get it smashed, could not be in a position to his maintain body equilibrium. In our opinion, the person would turn either on his back or his belly. In our opinion, the person would turn either on his back or his belly. The postmortem report as also the evidence of P.W.11 suggests that not only the deceased was hit on the head twice which was signified by the evidence of P.W.10 as well, rather he had fallen down and he was badly assaulted both on his chest and on his back and had fracture of 7th, 8th and 9th ribs of the right chest. P.W.11 also found bruise with swelling measuring 6”x2” on the back of right chest and also below interior scalp which also indicated that he was beaten by lathi on his back also. In addition to the evidence of P.W.11 and the record made by him while writing the postmortem examination report(Ext-6), what I find is that the evidence of solitary blow given to the head of the deceased also appears not true as the deceased had two wounds on his scalp as per evidence of P.W.10. Thus, oral evidence of P.Ws.1,2 and 6 appears completely in conflict with the evidence of P.Ws.10 and 11 which indicated a different mode of assault than what was stated by P.Ws.1,3 and 6 which creates serious doubt regarding the veracity of the prosecution story. 9. Coming to the evidence of P.W.10 Dr. Ram Dayal Singh who had initially examined the deceased, what we find is that he had very categorically stated that the deceased Suraj Rai, who subsequently died, was unconscious and that was the reason for him to give an opinion that injuries no.2 and 3 were dangerous to life. If the deceased Suraj Rai was unconscious at the time of his examination by P.W.10 then it remains in doubt that he was in a position of making his statement, especially when the police could have arrived after being informed by P.W.10 Dr. Ram Dayal Singh who had again categorically stated that as soon as the two injured persons were brought to his dispensary, out of whom deceased Suraj Rai was unconscious, he issued O.D. slip to the police station Kesariya. Thus indicating that the police arrived at the Kesariya State Dispensary only after the deceased was examined by P.W.10 and was found unconscious on account of the injuries which were caused to him. Thus indicating that the police arrived at the Kesariya State Dispensary only after the deceased was examined by P.W.10 and was found unconscious on account of the injuries which were caused to him. This puts into doubt the claim of prosecution that the deceased Suraj Rai was in a fit state of mental health and was capable of making his statement which was recorded in Kesariya State Dispensary as his fardbeyan. 10. The evidence of P.W.10 completely negated the claim of the prosecution that deceased Suraj Rai was conscious at the time of making his statement. This appears the reason as to why the police was so hesitant in dispatching the copy of the first information report along with the fardbeyan to the Chief Judicial Magistrate, Motihari which is signified by the fact that in spite of having been dispatched to the Chief Judicial Magistrate on 17th October, 1983, the first information report and the fardbeyan reached the Chief Judicial Magistrate on 22nd October, 1983, i.e., after five days of dispatch on the 6th day of the occurrence. The police was probably pondering over the situation as to who could be roped in as the real author of the murder. After it had figured out the person and the facts both, it was then probably creating the document in consultation with the prosecution to implicate the accused persons. 11. The above are the reasons which have been staring into our face out of the evidence and on the basis of which we are of the view that the prosecution story was shrouded in mystery and it appears that the prosecution has suppressed the real story and fabricated the story after due deliberation and consultation. 12. In view of the findings, we hold that the judgment of conviction passed in respect of appellant Hari Rai is not sustainable and the same is hereby set aside with the order of sentence passed upon him. The appeal is allowed. The appellant is acquitted. He is on bail. He shall stand discharged from the liabilities of his bail bonds.