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2015 DIGILAW 764 (PAT)

RAM AWATAR RAI v. THE STATE OF BIHAR

2015-05-19

I.A.ANSARI, SAMARENDRA PRATAP SINGH

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JUDGMENT SAMARENDRA PRATAP SINGH, J. Under challenge, in the present appeals, is the judgment, dated 05.10.1993, passed, in Sessions Trial No. 142 of 1988, by learned 1st Additional Sessions Judge, Buxar, whereby various sentences, by order, dated 06.10.1993, have been passed against the accused-appellants. 2. By the impugned judgment, the learned trial Court has convicted the accused-appellants, namely, Babban Rai, Ram Awtar Rai, son of Parmeshwar Rai, and Mahendra Rai, under Section 302 of the Indian Penal Code, accused-appellants, namely, Sajjan Rai, Ram Awtar Rai, son of Sri Kawal Rai, Ramakant Rai, Luta Rai, Damodar Rai, Nandlal Rai, Jawahar Rai, Sudhu Rai, Budhu Rai, Shivdhari Rai, under Section 302 read with Section 34 of the Indian Penal Code, accused-appellants, namely, Ram Awtar Rai, son of Sri Kawal Rai and Ramakant Rai, under Section 27 of the Arms Act, 1959, accused-appellants, namely, Budhu Rai, Luta Rai, Nandlal Rai, Sajjan Rai, Jawahar Rai, Damodar Rai, Shivdhari Rai and Ram Awtar Rai, son of Parmeshwar Rai, under Section 323 of the Indian Penal Code. 3. For their conviction under Section 302 of the Indian Penal Code, accused-appellants, namely, Babban Rai, Ram Awtar Rai, son of Parmeshwar Rai and Mahendra Rai, have been sentenced to suffer imprisonment for life, and for their conviction under Section 302 read with Section 34 of the Indian Penal Code, accused-appellants, namely, Sajjan Rai, Ram Awtar Rai, son of hri Kawal Rai, Ramakant Rai, Luta Rai, Damodar Rai, Nandlal Rai, Jawahar Rai, Sudhu Rai, Budhu Rai, Shivdhari Rai, have been sentenced to suffer imprisonment for life. Following their conviction under Section 27 of the Arms Act, 1959, accused-appellants, namely, Ram Awtar Rai, son of Sri Kawal Rai and Ramakant Rai, have been sentenced to undergo rigorous imprisonment for a period of one year each and, following their conviction under Section 323 of the Indian penal Code, accused-appellants, namely, Budhu Rai, Luta Rai, Nandlal Rai, Sajjan Rai, Jawahar Rai, Damodar Rai, Shivdhari Rai and Ram Awtar Rai, son of Parmeshwar Rai, have been sentenced to undergo rigorous imprisonment for a period of three months each. All the sentences having been directed to run concurrently. 4. All the sentences having been directed to run concurrently. 4. The case of the prosecution, as unfolded by the First Information Report, may, in brief, be described as under: (i) According to the informant, Kishun Rai, on 11.08.1985, at about 6:00 AM, he, along with his full brother, Shivnath Rai (deceased), and Shiv Parsan Rai, had gone to answer nature’s call to the south of their house near Nautala Khandha situated near canal. A short while thereafter, informant’s brother, Shivnath Rai, was heard raising a cry asking his brothers to come as some people had come there in suspicious circumstances. On his alarm, the informant looked around and saw accused (1) Ram Awtar Rai, son of Kawal Rai, armed with gun, (2) Ramakant Rai, armed with rifle, (3) Loota Rai, carrying garasa (4) Sajjan Rai, carrying lathi (5) Mahendra Rai, carrying garasa (6) Damodar Rai, carrying lathi (7) Ram Awtar Rai, son of Professor Rai carrying lathi (8) Nandlal Rai, carrying lathi (9) Jawahar Rai carrying lathi (10) Sudhu Rai, carrying lathi (11) Budhu Rai, and (12) Shivdhari Rai, having surrounded his brother, Shivnath Rai, in the meantime. (ii) The informant and his brother, Shiv Parsan Rai, saw accused Ramakant Rai and Ram Awtar Rai firing from their rifle and country-made gun respectively on Shivnath Rai, who fell down on account of being so shot. Thereafter, accused Sajjan Rai, Babban Rai and Ram Awtar Rai, all carrying lathis, and Mahendra Rai armed with garasa, too, assaulted Shivnath Rai, who yelled in pain. (iii) As the informant, Kishun Rai, and his brother, Shiv Parsan Rai, rushed to rescue Shivnath Rai, accused Budhu Rai, carrying spear, Sajjan Rai, carrying lathi, Jawahar Rai, carrying lathi, Loota Rai, carrying garasa, Sudhu Rai, carrying Lathi assaulted the informant, Kishun Rai, and accused Damodar Rai, carrying lathi, Nandlal Rai, with spear, Shivdhari Rai, with lathi, Babban Rai, with lathi, and Ram Awtar Rai, with lathi, caused injuries on his brother, Shiv Parsan Rai. (iv) On hearing hulla raised by the informant and his brother, Shiv Parsan Rai, their anther brother, Chunmun Rai, nephew, Nandlal Rai, his wife, Mushari Devi, and their co-villagers, along with Kripa Shankar Rai and Malik Rai rushed to the place of occurrence and, on seeing them all coming, the accused persons took to their heels. (iv) On hearing hulla raised by the informant and his brother, Shiv Parsan Rai, their anther brother, Chunmun Rai, nephew, Nandlal Rai, his wife, Mushari Devi, and their co-villagers, along with Kripa Shankar Rai and Malik Rai rushed to the place of occurrence and, on seeing them all coming, the accused persons took to their heels. (v) The co-villagers of the informant carried Shivnath Rai, informant, Kishun Rai, and their brother, Shiv Prasan Rai, to Sarenja hospital on a cot, but Shivnath Rai died in the way to the hospital. A land dispute is said to be the issue of discord between the parties. (vi) On the very day of the occurrence, i.e., on 11.08.1985, Kishun Rai (PW 10), brother of the said deceased, orally informed the police about the occurrence. The oral information, so given, was reduced into writing as his fardbeyan and, treating the said fardbeyan as First Information Report, Itarhi Police Station Case No. 47 of 1985, under Sections 147/148/302/307/324/ 323/341 of the Indian Penal Code and Section 27 of the Arms Act, 1959, was registered, against accused persons, namely, Ram Awtar Rai, son of Parmeshwar Rai, Babban Rai, Mahendra Rai, Sajjan Rai, Ram Awtar Rai, son of Sri Kawal Rai, Shivdhari Rai, Ramakant Rai, Luta Rai, Sudhu Rai, Budhu Rai, Jawahar Rai, Ishwar Chandra Rai, Damodar Rai, Kashi Nath Rai, Bhola Rai, Nandlal Rai, Jagnarayan Rai, Shyam Bihari Rai, Rama Shankar Rai and Bijay Rai. (vii) During investigation, inquest was held over Shiv Nath Rai’s dead body, which was also subjected to post mortem examination, and, on completion of investigation, charge sheet was laid, under Sections 147/148/302/307/324/ 323/341 of the Indian Penal Code and Section 27 of the Arms Act, 1959, against the accused aforementioned. 5. At the trial, a charge, under Section 302 read with Section 34 of the Indian Penal Code, was framed against accused, namely, Sajjan Rai, Ram Awtar Rai, son of Shri Kawal Rai, Shivdhari Rai, Ramakant Rai, Luta Rai, Sudhu Rai, Budhu Rai, Jawahar Rai, Ishwar Chandra Rai, Damodar Rai, Kashi Nath Rai, Bhola Rai, Nandlal Rai, Jagnarayan Rai, Shyam Bihari Rai, Rama Shankar Rai and Bijay Rai. A substantive charge, under Section 302 of the Indian Penal Code simplicitor, was also framed against accused Ram Awtar Rai, son of Parmeshwar Rai, Babban Rai and Mahendra Rai. A substantive charge, under Section 302 of the Indian Penal Code simplicitor, was also framed against accused Ram Awtar Rai, son of Parmeshwar Rai, Babban Rai and Mahendra Rai. A charge was further framed, under Section 27 of the Arms Act, 1959, against accused Ram Awtar Rai, son of Sri Kawal Rai, Ramakant Rai, Kashi Nath Rai, Shyam Bihari Rai and Bijay Rai. A further charge was framed, under Section 324 of the Indian Penal Code, against accused Luta Rai, Budhu Rai, Ishwar Chandra Rai and Nandlal Rai, and a charge, under Section 325 of the Indian penal Code, was also framed against accused Sajjan Rai and Jawahar Rai. In addition thereto, a charge, under Section 323 of the Indian Penal Code, was framed against accused Jagnarain Rai, Damodar Rai, Sheodhari Rai, Budhu Rai and Ram Awtar Rai, son of Parmeshwar Rai. All the accused pleaded not guilty to their respective charges. 6. In support of their case, prosecution examined altogether 13 (thirteen) witnesses including the doctor (PW 4), who had, admittedly, conducted the post mortem examination. The accused were, then, examined under Section 313 (1)(b) of the Code of Criminal Procedure, wherein the accused denied that they had committed the offences, which were alleged to have been committed by them, the case of the defence being that of denial. No evidence was adduced by the defence. 7. Having arrived at the finding that accused-appellants aforementioned had been proved guilty of the respective charges, as have been described hereinbefore, learned trial Court convicted them accordingly. Following their conviction, sentences have been passed against the convicts as mentioned above. Having, however, arrived at the conclusion that the charges against accused Jag Narayan Rai, Ishwar Chand Rai, Bhola Rail Kashi Nath Rai, Shyam Bihari Rai, Bijay Rai and Ramashanker Rai were not proved, learned trial Court acquitted them accordingly. 8. Aggrieved by their conviction and the sentences passed against them, the convicts aforementioned have preferred these appeals. 9. Both these appeals, having, thus, arisen out of the impugned judgment, dated 05.10.1993, and order of sentences, dated 06.10.1993, these appeals have been heard together and are being disposed of by this common judgment and order. 10. We have heard Mr. Ajay Kumar Thakur, learned Counsel, appearing on behalf of the appellants, and Mr. Ajay Mishra, learned Additional Public Prosecutor, appearing on behalf of the State. 11. 10. We have heard Mr. Ajay Kumar Thakur, learned Counsel, appearing on behalf of the appellants, and Mr. Ajay Mishra, learned Additional Public Prosecutor, appearing on behalf of the State. 11. The prosecution has examined altogether 13 (thirteen) witnesses. Out of the said 13 witnesses, PW 12 and PW 13 are formal witnesses inasmuch as they have proved inquest report (Exhibit 3), fardbeyan (Exhibit 2), formal First Information Report (Exhibit 4) and seizure list (Exhibit 6). PW 4 is the doctor, who had held post mortem examination on the body of the deceased. Remaining witnesses are on the point of occurrence. The prosecution, however, failed to examine the Investigating officer of the case. The informant, Kishun Rai, has been examined as PW 10. 12. The prosecution, in order to establish that Sheonath Rai was murdered, has brought on record the post mortem report and examined PW 4 (Dr. Akhauri Ramesh Chandra Sinha), who conducted the post mortem examination on the dead body. 13. The doctor (PW 4), in his evidence, has deposed that he (PW 4) conducted post mortem examination on 11.8.1985, at 5.30 PM, and found 7 ante mortem injuries on the body of the deceased. Out of these injuries, one was swelling and others were incised wounds. According to the doctor (PW 4), the death had occurred within 24 hours of the post mortem examination and the deceased died due to brain injury with the combined effects of the other injuries, which were sufficient to cause death in normal course. The post mortem report has been proved as Exhibit 1. There were eight ante mortem injuries found on the person of the said deceased, the description of which are found mentioned in the deposition of the doctor (PW 4). 14. Besides the post mortem report, the prosecution has also proved the inquest report of the dead body of the Sheonath Rai. As per the inquest report, 7 injuries were found on the person of the deceased caused by sharp as well as hard blunt weapon. 15. In our view, the post mortem report, the evidence of the doctor (PW4), the inquest report, etc, establish, beyond all doubt, that the death of the said deceased was neither natural nor accidental, but was homicidal in nature. 15. In our view, the post mortem report, the evidence of the doctor (PW4), the inquest report, etc, establish, beyond all doubt, that the death of the said deceased was neither natural nor accidental, but was homicidal in nature. The defence has not disputed the factum of murder, but vehemently denied the involvement of the accused in commission of the offences aforementioned and that in any view of the matter, the case would not fall under Section 302 and Section 302/34 of the Indian Penal Code, but under Section 304 Part II of the Indian Penal Code. 16. The prosecution, in order to establish that it was the appellants, who had committed the murder of Sheonath Rai, has relied upon ocular evidence of PW 1, PW 2, PW 3 and PW 5 besides the evidence of the informant (PW 10) and the injured Sheo Parsan Rai (PW 11). 17. The informant (PW 10), in his examination-in-chief, has deposed that on 11.4.1985, at 6:00 AM, he, along with his brothers, Sheo Parsan Rai and Sheo Nath Rai, had gone to answer nature’s call at Nautala Khanda and, soon thereafter, Sheo Nath Rai shouted to flee away as the accused persons had arrived, the informant saw the accused coming variously armed and on hearing the cries, the co-villagers of the informant and his members of family, too, arrived at the place of occurrence. 18. PW 11 (Sheo Parsan Rai), brother of the informant (PW 10) and the deceased Shoenath Rai, has fully supported the prosecution’s case. In his evidence, he has deposed that in the morning of 11.08.1985, he, along with informant, Kishun Rai, and his deceased brother had gone to answer the call of nature. He has deposed that soon thereafter, the deceased cried to run away as accused persons had come and he (PW 11) saw that accused persons, Mahendra Rai, Ram Avtar Rai, Baban Rai, Sajjan Rai had assaulted Sheonath Rai, while the informant (PW 10) was assaulted by accused Jawahar Rai, Luta Rai, Budhu Rai and Sudhu Rai, whereas he (PW 11) was assaulted by Nandlal and Sivdhari Rai. On hulla, his family members and co-villagers arrived and, on seeing them, the accused persons fled away. 19. On hulla, his family members and co-villagers arrived and, on seeing them, the accused persons fled away. 19. PW 1 (Kripa Shankar Rai) has deposed that on hearing sound of firing coming from the side of Sarang Tola Hakimpur, he rushed there and saw 20 to 25 persons assaulting the deceased Sheo Nath Rai, Sheo Parsan Rai (PW 11) and Sri Kisun Rai (PW 10). 20. PW 2 (Jawahar Rai), son of the informant, deposed that on hearing the sound of firing, he went to the place of occurrence. In paragraph 5, he (PW 2) has stated that Sheo Nath Rai was lying in the field of Jiut Rai, which was full of water and paddy plant. 21. PW 3 (Ram Govind Rai), son of the deceased, Sheonath Rai, has deposed that he was at the door of his house, when he heard the firing sound and he, immediately, rushed to the place of occurrence and saw accused Kashi Rai, Shyam Bihari Rai, Bijay Rai and Ram Awtar Rai, son of Shri Kewal Rai, had garasa in their hands and accused Kameshwar Rai and Ramakant Rai had rifles in their hands. He also deposed that his father, Sheo Nath Rai, was assaulted by accused Baban Rai, Sajjan Rai, Mahendra Rai and Ram Awtar Rai, while the informant, Kishun Rai, was assaulted by the accused Sudhu Rai, Jawahar Rai with lathis and by accused Luta Rai with garasa and by accused Budhu Rai with spear. He has further deposed that accused Mahendra Rai, Damodar Rai and others assaulted Sheo Parsan Rai. He (PW 3) has, thus, supported the prosecution’s case and clarified that his father died in way to the hospital. 22. PW 5 (Nandlal Rai), nephew of the injured persons, has stated that the occurrence took place on 11.8.1985 at 6 AM., when he had also gone to answer call of the nature and, on hearing the sound of firing, he went to the place of occurrence, which is a field, and recognized the accused persons, who were 21 in number, and, out of them, Ram Awtar Rai, Kashi Rai, Shyam Bihari Rai and Bijay Rai had gun in their hands while accused Ramakant Rai and Kameshwar Rai were armed with rifle. He further stated that while accused Mahendra Rai and Luta Rai had garasa in their hands, accused Nandlal Rai and Budhu Rai were armed with bhala, whereas other accused persons were armed with lathis. He deposed that Sheo Nath Rai was assaulted by accused Sajjan Rai, Babban Rai and Ram Avtar Rai by lathis and accused Mahendra Rai by garasa. 23. PW 6 (Chunmun Rai) is a witness to the First Information Report and has been examined as PW 7. However, his examination-in-chief was abruptly adjourned. In his evidence, he has stated that on hearing the sound of firing, he went to the place of occurrence and saw the accused persons assaulting Sheo Nath Rai (deceased), the informant, Kisun Rai, and Sheo Parshan Rai and has also supported the rest of the prosecution’s case. 24. PW 8 (Jharkhandi Rai) is the son of the injured Sheo Parsan Rai and was only 10 years old at the time of occurrence. He, too, has supported the prosecution’s case. 25. PW 9 (Musahri Devi), wife of the informant Sri Kisun Rai, like other witnesses, reached the place of occurrence on hearing the sound of firing. She too supported the prosecution’s case as narrated in the First Information Report. 26. PW 12 is the ASI, who has proved the inquest report (Exhibit 3). 27. On the basis of ocular evidence, learned Additional Public Prosecutor appearing for the State, argues that the prosecution has been able to establish the guilty under Section 302 of the Indian Penal Code against the appellants. 28. Learned Counsel for the appellants submits that the prosecution’s case should be rejected outright on the ground that they have made Ram Avtar Rai, son of Prameshwar Rai, an accused, who is a lapper and a blind person. We find that the initial version of the prosecution that all the three brothers, namely, the informant himself, Sheo Nath Rai (the deceased) and Sheo Parsan Rai (other brother of the informant), had gone to answer call of nature towards the same location (i.e. Nautala Khandha situated near canal) at the same time, where the alleged occurrence took place, has been given a complete go-by during the trial. From the evidence of the prosecution’s witness, it is evident that the occurrence took place not at Nautala Khanda, but in a paddy field, which had paddy crops and a lot of water. 29. From the evidence of the prosecution’s witness, it is evident that the occurrence took place not at Nautala Khanda, but in a paddy field, which had paddy crops and a lot of water. 29. The attention of PW 1 (Kripa Shankar Rai) was drawn towards his previous statement made before police, wherein he had stated that the mar-pit took place due to land dispute, while the paddy was being transplanted, and Shivnath Rai had fallen in the chat of the canal, which was full of water. PW 3 (Ram Govind Rai), too, stated that in the morning, mar-pit took place on account of ploughing the disputed land. Similarly, PW 5 (Nand Lal Rai) stated that the deceased had fallen in the field full of paddy crops. Evidence of PW 6/7 (Chunmun Rai) is also to the effect that the occurrence took place in the paddy field. PW 9 (Mushari Devi) has denied the suggestion that she stated that on hearing the sound of firing, she went to the place of occurrence and saw all the three persons, namely, PW 10, PW 11 and deceased Sheonath Rai, being assaulted at the hands of the accused persons and, thereafter, they fell into the water. We further find that during the trial, the manner of assault was also changed and the number of accused persons was raised from 13 to 21. 30. Further-more, ocular evidence does not find corroboration from the post mortem report. As per post mortem report, there was no injury on the head of the deceased. Injury No. 1 was swelling towards right lower forearm and injury No.2 was a wound on right arm, injury No.3 was an incised wound of right wrist, injury No.4 was an incised wound right leg and its middle injury No.5 was an incised wound on the right leg below injury No.4, injury No.6 was an incised wound over the left forearm, injury No.7 was an incised wound over middle of left arm and, injury No.8 was an incised wound scalp deep over middle line of scalp. 3” x ½”. Except injury No.8, there was no injury on the vital part of the body, though there is allegation that about 22 accused persons assaulted the said deceased, the informant, Kishun Rai, and Shiv Prasan Rai, using deadly weapons. 31. 3” x ½”. Except injury No.8, there was no injury on the vital part of the body, though there is allegation that about 22 accused persons assaulted the said deceased, the informant, Kishun Rai, and Shiv Prasan Rai, using deadly weapons. 31. The prosecution’s case further appears improbable because as per the post mortem report, the deceased sustained only one injury on the vital part of the body, though 22 persons are said to have assaulted him with various weapons like rifle, gun, lathis, farsa, garasas and spears. It is the further case of the prosecution that the accused persons were armed with rifle and gun and even they fired, still none of the three persons, namely, the informant, the deceased and their brother, Sheo Parsan Rai, sustained any gun-shot injury. Besides this, the injury reports of the informant and his brother, Sheo Parsan Rai, were not produced on record during trial, which creates a doubt whether they were at all assaulted and injured. Non-examination of Investigating Officer also affects the credibility of the prosecution. 32. We, thus, find that the evidence of prosecution witnesses are not only inconsistent, but also contradiction to each other on material issues like place of occurrence and manner of occurrence. 33. Because of what has been discussed and pointed out above, it clearly emerges that there was no credible, clinching and reliable evidence on record, adduced by the prosecution, which could have been laid foundation for convicting the accused-appellants. 34. At any rate, in the face of evidence on record, which was nothing, but an admixture of half-truth and untruth, the accused-appellants ought to have been accorded, at least, benefit of doubt. 35. In the result and for the forgoing reasons, we allow the appeals. The impugned conviction of the accused-appellants and the sentences passed against them by the judgment and order, under appeal, are hereby set aside. The accused-appellants are held not guilty of the offences, which they stand convicted of, and they are hereby acquitted of the same under benefit of doubt. 36. Send back the Lower Court Records. I. A, Ansari, J.- I agree.