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2015 DIGILAW 1053 (PAT)

Bisheshwar Rai @ Chaman Rai v. State of Bihar

2015-08-18

JITENDRA MOHAN SHARMA, V.N.SINHA

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JUDGMENT : V.N. SINHA, J. Both these appeals arise out of judgment and order dated 30th November, 1992 passed by 4th Additional Sessions Judge, Samastipur in Sessions Trial No. 51/13 of 1985/1992, whereunder the appellant Ram Karan Rai in Cr. Appeal (D.B) No. 32 of 1993 has been convicted for the offences under sections 302 and 148 of the Penal Code and sentenced to suffer rigorous imprisonment for life and one year respectively under the two counts. The appellants in the connected Cr. Appeal (D.B.) No. 464 of 1992 have been convicted for the offences under sections 302, 148 and 149 of the Penal Code and also sentenced to suffer rigorous imprisonment for life and one year respectively under the two counts. The appellant Bisheswar Rai @ Chaman Rai and Maheshwar Rai @ Mishri Rai have further been convicted for the offence under section 324 of the Penal Code and sentenced to suffer rigorous imprisonment for one year. Appellant Maheshwar Rai @ Mishri Rai has also been convicted for the offence under section 323 of the Penal Code and sentenced to suffer rigorous imprisonment for six months. All the sentences, however, has been directed to run concurrently. 2. Learned counsel for the appellant in Cr. Appeal (D.B.) No. 32 of 1993 has filed supplementary affidavit sworn by Dilip Kumar Roy nephew of the sole appellant dated 23.01.2015. In paragraph-4 of the said affidavit it is stated that during pendency of this appeal the sole appellant Ram Karan Rai died on 05.04.2010 and in support of the said fact a certificate granted by Sri Ajay Chandra Mishra, Mukhiya of Grampanchayat- Raj Tabhka dated 08.12.2014 has been annexed as Annexure-1. 3. It is submitted that in the light of the contents of the supplementary affidavit Cr. Appeal (D.B.) No. 32 of 1993 may be dismissed as withdrawn as no useful purpose will be served by pursuing the said appeal in view of death of the sole appellant on 05.04.2010. 4. In view of request made by the learned counsel for the appellant Cr. Appeal (D.B.) No. 32 of 1993 is dismissed as not pressed. 5. Appeal (D.B.) No. 32 of 1993 may be dismissed as withdrawn as no useful purpose will be served by pursuing the said appeal in view of death of the sole appellant on 05.04.2010. 4. In view of request made by the learned counsel for the appellant Cr. Appeal (D.B.) No. 32 of 1993 is dismissed as not pressed. 5. The prosecution case, as set out in the fardbeyan of the informant Ram Naresh Mahto (P.W.5) recorded by the Officer Incharge S.I. K.K. Thakur of Bibhutipur Police Station on 30.05.1984 at 9 A.M. in the field of Arun Singh of Village- Bishanpur Tabhka is that on the same day in the morning around 7.30 A.M. he came out to ease in the moong-field situate in front of his house saw the accused persons, namely, Ram Karan Rai, Bisheshwar Rai, Baleshwar Rai, Suresh Rai, Rajiv Rai, Mishri Rai, co-villagers along with 5-6 unknown plucking mung crop from his field, informant protested, meanwhile his mother Shivkashi Devi, aunt Janki Devi, cousin Bhola Mahto, uncle Jugeshwar Mahto also came. Accused No.1 Ram Karan Rai armed with farsa asked his sons and laborers to assault the informant and others, whereupon Mishri Rai assaulted the informant with lathi but some how he was saved and ran towards his residence. The accused persons succeeded in surrounding his mother, aunt, uncle and brother, accused no.1 Ram Karan Rai with intention to kill assaulted Shivkashi Devi with sharp cutting portion of farsa who fell down. Accused no.2 Bisheshwar Rai @ Chumman Rai also with intention to kill assaulted the uncle of the informant Jugeshwar Rai on his neck. He some how warded of the attack on neck but was injured in the right wrist and he also fell down. Bisheshwar Rai again assaulted Jugeshwar Rai with farsa causing injury on his left leg. Accused no. 6 Maheshwar Rai @ Mishri Rai assaulted Bhola Mahto with farsa on his neck and he also became injured. The aunt of the informant was assaulted by accused no.3 Baleshwar Rai @ Ballo by farsa on the back and she also fell down. While the assault was going on uncle and brother of the informant, namely, Sukhdeo Mahto, Babuelal Mahto and Ramraji Mahto came running. The informant and his uncle, brothers also moved ahead to save the injured but was prevented by accused no. 4 Suresh Rai who fired from his country made pistol. While the assault was going on uncle and brother of the informant, namely, Sukhdeo Mahto, Babuelal Mahto and Ramraji Mahto came running. The informant and his uncle, brothers also moved ahead to save the injured but was prevented by accused no. 4 Suresh Rai who fired from his country made pistol. The informant and others were chased away by all the accused persons including accused no.5 Rajiv Rai who hurled a bomb which fell on the hay stack of his uncle Babuelal Mahto but did not explode. Meanwhile, co-villager Shankar Lal Thakur, Jagdish Rai, Harikant Rai, Sobha Sao and Gulam Baitha also came running whereafter the accused persons fled away. After departure of the accused persons the informant and others came near the injured and found his mother dead. Other injured, namely, Bhola Mahto, Jugeshwar Mahto and Janki Devi were unconscious and taken on a tyre-cart to hospital for treatment. The accused persons succeeded in plucking the mung crop worth Rs. 50/-. The accused persons named in the fardbeyan have come with an intention to kill the mother of the informant and others as also for attacking their houses by hurling bomb after resorting to firing with country made pistol. The informant also produced the unexploded bomb hurled by the accused persons before the investigating officer. In the fardbeyan besides the informant Ram Naresh Mahto Babuelal Mahto also put their signature over the same as an attesting witness of the fardbeyan. The fardbeyan was forwarded to the Bibhutipur police station for instituting a case under sections 147, 148, 149, 341, 323, 302, 307, 323, 324, 452, 379 and 447 of the Penal Code and section 27 of the Arms Act including section 4 of the Explosive Substance Act. In the forwarding potion of the fardbeyan the investigating officer also stated that he has taken over investigation of the case. In the light of the fardbeyan F.I.R. has also been drawn on the same day at 12 noon and dispatched to the court through special messenger. The F.I.R. however has been perused by the learned C.J.M. Samastipur on 01.06.1984 and there is no explanation for the delay of one day in receipt of the F.I.R. in the court. In the light of the fardbeyan F.I.R. has also been drawn on the same day at 12 noon and dispatched to the court through special messenger. The F.I.R. however has been perused by the learned C.J.M. Samastipur on 01.06.1984 and there is no explanation for the delay of one day in receipt of the F.I.R. in the court. After recording the fardbeyan the Officer Incharge K.K.Thakur conducted the inquest proceeding on the dead body of Shivkashi Devi on 30.05.1984 at 9.30 A.M. in presence of two witnesses, namely, Anil Kumar Thakur and Binay Kumar Thakur, both were not examined. After inquest the dead body of Shivkashi Devi was sent for postmortem to the Sadar Hospital, Samastipur on 30.05.1984 at 11 A.M. where the same was received on the same day at 11 P.M. The postmortem was conducted on 31.05.1984 at 12.40 P.M. by Dr. R.P. Mishra, Civil Assistant Surgeon, Sadar Hospital, Samastipur who found her death caused by inflicting injury by sharp cutting weapon. Time elapsed since death 24 to 48 hours. The investigating officer of the case recorded further statement of the informant, police statement of the witnesses named in the fardbeyan and in the light of the materials collected during investigation submitted charge-sheet against six accused persons who were put on trial. In the light of the charge sheet cognizance taken and after supply of police papers to the accused persons the case was committed to the court of Sessions. The Sessions Court framed charges against six accused persons under order dated 01.05.1985 to which the accused persons pleaded not guilty and claimed to be tried. 6. In support of the charges the prosecution examined as many as 19 witnesses. P.W.1 Laxmi Narain Lal is a formal witness who has proved the protest petition filed by the informant (Ext.1). P.W. 2 Shankar Lal Thakur is an eye witness of the occurrence but not named in the fardbeyan. P.W. 3 Ramjee Mahto is named in the first information report who came to the place of occurrence after alarm was raised. This witness however has claimed that he saw the entire occurrence. P.W. 4 Chandrashekhar Saran is also a formal witness who proved signature of the Officer Incharge S.I. K.K.Thakur over the fardbeyan (Ext.2). P.W. 5 Ram Naresh Mahto is the informant of the case. This witness however has claimed that he saw the entire occurrence. P.W. 4 Chandrashekhar Saran is also a formal witness who proved signature of the Officer Incharge S.I. K.K.Thakur over the fardbeyan (Ext.2). P.W. 5 Ram Naresh Mahto is the informant of the case. P.W. 6 Bindeshwar Rai is also a formal witness who proved signature of the informant on the Vakalatnama filed on his behalf (Ext.4). P.W. 7 Permeshwar Lal is also a formal witness who proved signatures of Halka Karamchari on the rent receipts (Exts. 5 to 5/2). P.W. 8 Baleshwar Rai is also a formal witness who proved registered pattas (Exts. 6 and 6/1) issued in favour of P.W.5. P.W. 9 Jugeshwar Mahto is a witness named in the fardbeyan and also injured during occurrence. P.W. 10 Sobhan Sao is named in the fardbeyan as eye witness but not injured. P.W. 11 Dr. R.P. Mishra has conducted postmortem on the dead body of Shivkashi Devi. P.W. 12 Bhola Mahto is also an eye witness named in the fardbeyan and injured during occurrence. P.W. 13 and 15, namely, Babue Lal and Sukhdeo Mahto both are named in the F.I.R. but have been tendered for cross-examination. P.W. 14 Ram Gulam Baitha is eye witness named in the fardbeyan. P.W. 16 Janki Devi wife of P.W. 15 and also aunt of the informant injured during occurrence. P.W. 17 Dr. Ramashankar Ojha medical officer served at the relevant time in Bibhutipur Government Dispensary treated the injured. P.W. 18 Sub. Inspector Kalikant Thakur is scribe and the investigating Officer of the case. P.W. 19 Rajeshwar Prasad Sinha is a formal witness who proved letter (Ext. 13) issued by the Land Mortgage Bank, Patna. 7. Besides the prosecution party the accused persons have also examined six defence witnesses. D.Ws. 1, 2, 3 and 4, namely, Harishankar Prasad, Baleshwar Prasad, Sita Ram Prasad and Udaykant Jha are the Advocate clerks who proved rent receipts, purchas and hand writing of the revenue karamchari. D.W. 5 Ram Badan Rai has deposed that the occurrence as deposed by the prosecution witnesses had not taken place rather the same took place in the night. D.W. 6 Krishna Deo Pandey is an Amin who proved the survey map of plot no. 750 (Ext. D). 8. Learned counsel for the appellants in Cr. D.W. 5 Ram Badan Rai has deposed that the occurrence as deposed by the prosecution witnesses had not taken place rather the same took place in the night. D.W. 6 Krishna Deo Pandey is an Amin who proved the survey map of plot no. 750 (Ext. D). 8. Learned counsel for the appellants in Cr. Appeal (D.B.) No. 464 of 1992 submitted that as per the evidence of the informant (P.W.5) in paragraph-13 and eye witness (P.W.2) in paragraphs- 6 to 8 the occurrence took place in the same field in which the dead body of Shivkashi Devi was found i.e. the field of Arun Singh where the fardbeyan was also recorded. It is submitted that such evidence is not in tune with the previous statement of the informant i.e. the fardbeyan as according to the fardbeyan the informant had come to his moong field situate in front of his house around 7.30 A.M. where he saw the accused persons plucking moong crops which was protested by the informant leading to altercation between the accused persons and the informant. Meanwhile, deceased Shivkashi Devi, mother of the informant come followed by uncle of the informant Jugeshwar Mahto (P.W. 9), aunt Janki Devi (P.W. 16) and cousin Bhola Mahto (P.W. 12). Deceased and the witnesses were surrounded in the mung field by the accused persons. The informant ran away from the mung field but watched the assault from some distance. P.Ws. 9, 12 and 16 remained surrounded with the deceased and were assaulted by the accused persons in the same field where Shivkashi Devi, the deceased was assaulted and fell down. After arrival of the villagers the accused persons fled away. The informant returned to the moong field and found his mother killed on account of injury inflicted by Ram Karan Rai with farsa. S.I. Kalikant Thakur, on his own came to the place of occurrence village to make enquiry in connection with the questions raised in the Legislative Assembly and then learnt about the occurrence and came to the house of the informant and thereafter to the place of occurrence and recorded the fardbeyan. 9. S.I. Kalikant Thakur, on his own came to the place of occurrence village to make enquiry in connection with the questions raised in the Legislative Assembly and then learnt about the occurrence and came to the house of the informant and thereafter to the place of occurrence and recorded the fardbeyan. 9. Learned counsel for the appellants submitted that according to the own showing of the informant he is an eye witness of the entire occurrence and no sooner his mother fell in the field, the accused persons fled away he again came to the field remained there with the dead body of his mother until arrival of S.I. Kalikant Thakur (P.W. 18) who recorded his fardbeyan in the same field where his mother has fallen and her dead body was lying then it is not explained as to how her dead body came in the adjoining field of Arun Singh. 10. It is submitted that as per prosecution case the deceased Shivkashi Devi, P.Ws. 9, 12 and 16 were surrounded in the mung field where assault took place and Shivkashi Devi fell down in the moong filed itself but her dead body having been found in the adjoining field of Arun Singh and there is no averment in the fardbeyan that after receiving injury Shivkashi Devi ran to the adjoining field and fell down there it is difficult to explain presence of dead body in the field of Arun Singh. In view of the aforesaid fact, according to the learned counsel the entire occurrence as narrated in the fardbeyan and deposed in court is not proved beyond reasonable doubts and suggest that the manner of occurrence is either different or perhaps the informant and the other eye witnesses, namely, P.Ws. 9, 12 and 16 are not the witnesses of the occurrence. 11. Learned counsel for the appellants further submitted that accused nos. 2 to 6, i.e. appellants in the present appeal have not been attributed with any overt-act of assault on the person of the deceased and as such they cannot be convicted for the offences under sections 302/149 of the Penal Code as also for the minor offences for assaulting P.Ws. 9, 12 and 16 because the place of occurrence of their assault is itself in doubt. 12. 9, 12 and 16 because the place of occurrence of their assault is itself in doubt. 12. According to the learned counsel the question which is required to be answered by this Court is that the occurrence had taken place in the mung field of the informant or in the barren plot of Arun Singh. Rent receipts (Exts. A to A/T), purcha (Ext. B), original pattas (Ext. C, C/a & C/c) and original Kabuliyat (Ext. C/b) indicate that the prosecution party and the accused persons were making struggle to take possession of the barren land over which the dead body of Shivkashi Devi has been found. The occurrence had begun in the mung field of the informant where the deceased, P.Ws. 9, 12 and 16 were surrounded and assaulted. As per the fardbeyan the deceased had no opportunity to run towards the plot of Arun Singh in the circumstances, it is not understandable as to how her dead body reached the adjoining plot over which the parties are claiming possession by filing documents noted above. 13. In the circumstances, we are satisfied that the prosecution party in course of occurrence has shifted the place of occurrence from mung field of the informant to the barren field of Arun Singh and as such we have no option but to give benefit of doubt to accused nos. 2 to 6, i.e. the appellants in Cr. Appeal (D.B.) No. 464 of 1992. Accordingly, the appeal is allowed and the impugned judgment of conviction and order of sentence so far accused nos. 2 to 6 are concerned is set aside. They are also discharged from the liabilities of their bail bonds. Appeals allowed.