Research › Search › Judgment

Patna High Court · body

2015 DIGILAW 1047 (PAT)

Surendra Rai v. State of Bihar

2015-08-17

DHARNIDHAR JHA, GOPAL PRASAD

body2015
JUDGMENT : DHARNIDHAR JHA, J. Suttu Rai, the deceased of the case, happened to be the son of the informant Kusheshwar Rai (PW14). It was stated by the informant in his fardbeyan recorded by the Officer-in-Charge of Moro out post on 18.11.1986 at 2.00 A.M. in the night intervening the 17th and 18th of November, 1986 that he had been taken away by the accused persons from his house on the plea of visiting the bamboo clumps. The informant stated that he had opposed the very taking away of his son by the accused persons, but they had stated that it was necessary to visit the bamboo clumps as bamboos were being cut for preparing lathis. 2. The deceased did not return by 8.00 P.M. on 17.11.1986. The informant and others set out on search of the deceased and went to the bamboo clumps not to find him whereafter he and others came to the accused persons. They first questioned appellant Surendra Rai as to what did happen of his son Suttu Rai who stated that he had gone to Bhatgama for witnessing some dance. The informant was not satisfied. As such, he made an enquiry from Jugeshwar Rai the father of Surendra Rai who also gave the same reason for non return of the deceased Suttu Rai. Informant not being satisfied on the explanation given by appellant Surendra Rai or his father appellant Jugeshwar Rai, set out on a hunt for his son and he met many villagers, like, PWs. 1, 2, 3 and others who stated that while they were attending to the call of nature or was keeping a watch on their own field, like PW1, they had heard the moaning sound of someone and sensed that anybody was being killed. Thus, persons rushed to the place of occurrence which was the sugarcane field of one Lakhan Pandey. They found the dead body of Suttu Rai lying there which was bearing multiple stab wounds all over the body, definitely indicating that Suttu Rai had been done to death. 3. The informant and others picked up the dead body and brought it on to the embankment of the pond near his house and then went to the police station for lodging the report at 2.00 A.M. on 18.11.1986. 4. There were two motives assigned by the informant. 3. The informant and others picked up the dead body and brought it on to the embankment of the pond near his house and then went to the police station for lodging the report at 2.00 A.M. on 18.11.1986. 4. There were two motives assigned by the informant. The one was that the accused persons used to destroy standing crops of the informant for which a panchayati had been convened which created some grudge into the minds of the accused persons. The other was that one Surendra Rai had committed theft of certain crackers from the shop of one Sikil Rai (not examined) and that fact had been made public by the deceased and, as such, the reason for committing the murder. 5. On the basis of the fardbeyan of PW14 the informant, the First Information Report (Ext.1) was drawn up and the case was investigated into. The dead body was sent for post-mortem examination which was held by Dr. Akhauri Rabindra Kishore (PW16) and he had found (i) Multiple punctured wounds with different shapes and sizes in an area of 3½"x5" over the back of neck. Underlying tissues were found infiltrated with blood and blood clots with tearing of the soft tissues. (ii) One incised looking wound measuring 2½"x1/4"x1/4" on the right side of forehead. (iii) Three incised looking wounds 2"x1/4"x1/4", 2¼"x1/4"x1/4" and 2"x1/4"x1/4" over the back of head with infiltration of blood and blood clots in the underlying tissues. (iv) One round bruise with semi circular abrasion on either sides of the neck at the thyroid cartiledge level. PW16 Dr. Akhauri Rabindra Kishore on dissection had found that the hyoid bone had been cut and fractured with infiltration of the blood around it. Injury no.1 was grievous and caused by some sharp pointed weapon, like, a dagger or a bhala and injuries no.2 and 3 were caused by some hard and blunt substance. Injury no.4 was dangerous to life in ordinary course of nature and was caused by pressure with fingers. The death was due to asphyxia as a result of throttling within 36 to 48 hours of holding of the postmortem examination. Thus, what appears concluded on the basis of the evidence of PW16 is that Suttu Rai had indeed been murdered. 6. The death was due to asphyxia as a result of throttling within 36 to 48 hours of holding of the postmortem examination. Thus, what appears concluded on the basis of the evidence of PW16 is that Suttu Rai had indeed been murdered. 6. In support of the charges, 17 witnesses were examined out of whom Mangal Rai (PW4), Ram Briksha Rai (PW6), Mohit Rai (PW8), Tapeshwar Rai (PW9) and Ram Karan Rai (PW11) were tendered for cross-examination. Bauku Rai (PW10) was declared hostile whereas PW17 was a witness of formal character. Dahu Rai (PW1) stated that he was keeping watch on his own sugarcane field and he heard the moaning sound of a man and rushed to the scene of occurrence. It was a dark night. He, during cross-examination, was put certain questions on possessing land and it remains in doubt that he had indeed any field as he did not even tell as to what was the boundary of the field which was being watched by him. Kapileshwar Rai (PW2) was also a witness of the same class with Sukhnu Rai (PW5) and Rajendra Rai (PW7) who all stated that they had heard some moaning sound coming from the sugarcane field of Lakhan Pandey and they had gone there to find the dead body of Suttu Rai lying there. All the witnesses stated that they had come back to their houses and had gone to the informant to inform him about the incident. But, what we find from the perusal of the fardbeyan that the informant does not say that he had been informed by anyone about the above facts which was stated by the above witnesses rather he stated that during the search of his son, he could come to know that Suttu's dead body was lying in the field of Lakhan Pandey. We could not appreciate the evidence of above witnesses, who had claimed seeing the accused persons running away from there, as why then they did not state this fact of seeing the accused persons running away from the scene of occurrence which is more prominently absent from the fardbeyan. 7. Besides, while perusing the evidence of Dahu Rai (PW1), what we found was that the darkness was as deep as not to allow someone to see even the palm of his hand. 7. Besides, while perusing the evidence of Dahu Rai (PW1), what we found was that the darkness was as deep as not to allow someone to see even the palm of his hand. PW1 had stated in paragraph-5 of his cross-examination that he along with persons including the informant had set out from the house of the informant in search of the dead body, but when he was put a question as to who were those persons who had accompanied him during the search of the deceased, he could not identify them because of the darkness prevailing there. The simple question which we had put to the learned Additional Public Prosecutor Shri Sinha was as to when the darkness was so deep as not to permit the facility even of seeing a person accompanying PW1, then how was it that the witnesses were identifying the accused persons who were running from the scene of occurrence. This single line of evidence considered with other evidences of those witnesses satisfied us that they were cooked up witnesses probably set up to state facts in support of the charges. 8. The evidence of PWs. 13 and 14 do indicate that the deceased had been taken away by the accused persons. Shri Sinha was pressing hard upon us to accept this evidence as that of being seen last in the company of the deceased and, as such, the accused persons were responsible to account for his disappearance and subsequent murder and finding of his dead body from the sugarcane field. We want only to recall that the evidence of being seen last in the company of the deceased is the weakest piece of circumstantial evidence which could not be utilized independently of any evidence to uphold the conviction of an accused. Moreover, while we were searching for the explanation, we found it very well coming out of the fardbeyan itself when the informant was stating that appellant Surendra Rai and his father appellant Jugeshwar Rai had offered explanation that the deceased had parted the company of the accused and had gone to Bhatgama for witnessing dance. As such, it could not be held that the accused persons had not offered an explanation. 9. As such, it could not be held that the accused persons had not offered an explanation. 9. Having considered the evidence of the witnesses, we come to the conclusion that it was a case of virtually no evidence and whatever evidence had been given by the witnesses were all fake and fabricated which ought not have been accepted by the learned trial judge for passing a judgment of conviction and thereafter, passing the order of sentence by which the appellants were directed to suffer rigorous imprisonment for life. 10. In view of the discussion of the evidence made by us, We do not think it proper to interfere with the judgment of conviction and order of sentence dated 20.04.1993 passed by the learned 1st Additional Sessions Judge, Darbhanga in Sessions Trial No. 24 of 1988/24 of 1993 and we allow the appeal as we find that the prosecution had failed to connect the murder of Suttu Rai to any of the three appellants. The evidence was not only scant but was extremely unreliable and that could never be the basis for passing the judgment of conviction as noted by us earlier. The appellants are acquitted. The three appellants are on bail. They shall stand discharged from the liabilities of their respective bonds. Appeal allowed.