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2017 DIGILAW 1451 (PAT)

Asharfi Rai son of Chandan Rai v. State of Bihar

2017-11-11

RAVI RANJAN, S.KUMAR

body2017
JUDGMENT : RAVI RANJAN, J. Heard parties. 2. This criminal appeal has been filed against the judgment of conviction and order of sentence dated 11.05.1994, passed by the 5th Additional Sessions Judge, Chapra in Sessions Trial No. 203 of 1991 convicting the sole appellant under Sections 302 of IPC and sentenced to undergo rigorous imprisonment for life. 3. Prosecution story as per the fardbeyan of Chandravanshi Rai (deceased) in an injured state in Hajipur Sadar Hospital recorded by ASI of P.S. Hajipur in the afternoon of 30.12.1990, is that, while he was making ridge in his land at about 12 Noon in front of his house Asharfi Rai (appellant) came and saw him making the ridge, returned back and thereafter came again alongwith his father variously armed with Bhala and Lathi with an intention to kill him Asharfi Rai assaulted him by bhala on his abdomen and Chandan Rai assaulted with lathi. Their wives had caught hold of him to facilitate assault on him. The reason for assault was land dispute and on the basis of said fardbeyan Sonepur P.S. Case No. 238 of 1991 was registered under Sections 307, 323 read with section 34 of IPC against appellant, his father Chandan Rai, his Mother and Wife. Informant was referred to PMCH and on the same day he succumbed to his injuries, accordingly section 302 of IPC was added. 4. After investigation, police submitted chargesheet against the appellant-Asharfi Rai and his father Chandan Rai and cognizance under Section 302/34 of IPC was taken by the court, remaining two accused were not sent up for trial and case was thereafter committed to the court of Sessions. 5. The charges against the appellant-Asharfi Rai and his father Chandan Rai were framed under section 302 and 302/34 of the IPC and the appellants denied the charges and claimed to be tried. Altogether four witnesses were examined on behalf of prosecution, who were PW-1 Sugiya Devi, PW-2 Panpati Devi, PW-3 Nagina Rai and PW-4 Ram Savan Rai. PW4 was tendered and PW-1 to PW-3 who were family members of deceased being Daughter-in-Law, Wife and Son claimed to be eye witness of the occurrence. After examination of prosecution witnesses on a petition filed under Section 319 of Cr.P.C the learned trial court summoned Dhanwa Devi and Sharda Devi and were put on trial and charges under sections 302/34 of the IPC was framed against them. After examination of prosecution witnesses on a petition filed under Section 319 of Cr.P.C the learned trial court summoned Dhanwa Devi and Sharda Devi and were put on trial and charges under sections 302/34 of the IPC was framed against them. The trial court acquitted Chandan Rai, Dhanwa Devi and Sharda Devi but convicted Asharfi Rai (appellant) under Section 302 of IPC and sentenced to undergo rigorous imprisonment for life. 6. PW-1 Sugiya Devi in her examination-in-chief has stated that her Father-in-Law Chandravanshi Rai was making ridge on the vacant land in front of the house. After hearing the hulla she came out and saw Asharfi Rai inflicting bhala blow in the abdomen of her Father-in-Law. The two ladies had caught hold her Father-in-Law. In her cross-examination she has stated that she had made such statement before the police. Chandan Rai and Chandreshwar Rai were own brothers. She was inside her house when there was hulla. She was forced to go in the back of house by Asharfi Rai. She did not stop there and again came to the front of the house. Chandravanshi did not fell in her presence. When she reached there blood was oozing out from the abdomen of Chandravanshi Rai. Only her Mother-in-Law was present. Chandravanshi Rai was about four laggi south of road when blood was coming out from the abdomen. No blood was spread at place of occurrence. No one had came at the place of occurrence. She had accompanied her Father-in-Law on Tempo in Gola Bazar and thereafter she returned. She has denied that she had made a statement before police that she remained in the back of house and came at the place of occurrence and saw her Father-in-Law lying there. 7. PW-2 is Panpati Devi, who in her examination-in-chief has stated that she was along with her husband Chandravanshi Rai at the place of occurrence. Place of occurrence is the land in front of her house. Her husband was making ridge. Wives of Asharfi Rai and Chandan Rai came there and caught hold of her husband. Asharfi Rai came with bhala and inflicted bhala blow in the stomach. Chandan Rai assaulted by lathi. She had taken away her husband to Hajipur Hospital from where he was referred to PMCH hospital where he died. In her cross-examination she has stated that the assault took place ten laggi East of her house. Asharfi Rai came with bhala and inflicted bhala blow in the stomach. Chandan Rai assaulted by lathi. She had taken away her husband to Hajipur Hospital from where he was referred to PMCH hospital where he died. In her cross-examination she has stated that the assault took place ten laggi East of her house. Ridge could not be made. There was no lathi at the place where ridge was being made. She said ridge was being made at the Western side and thereafter said Eastern side. Field is North-South in length. They have no dispute with accused. Her husband had not abused accused. Her husband had gone to make a ridge alone and her Daughter-in-Law followed her. After her husband was injured, her Daughter-in-Law son and other villagers came there. Road is near the place of occurrence and on Tempo she took her husband to the Hospital. Blood had not fallen from the injury. Blood had also not fallen on Tempo nor her cloth was stained. 8. PW-3 Nagina Rai has stated that his father was making ridge and accused Asharfi Rai and Chandan Rai came there and thereafter returned and again came with bhala and lathi and their wives caught hold of her father and Asharfi Rai inflicted a bhala blow and Chandan Rai assaulted by lathi. In his cross-examination he has stated that police took his statement after two days and they had stated that wives of both accused had caught hold of her father. He had stated that his wife and his mother were with his father when he was making ridge. Accused returned to their house after assault. He took his father to Hajipur Hospital and thereafter to PMCH and he died at about 10:00 pm. There was no dispute with regard to ridge which was in existence from last 15 to 20 years and only fresh soil was being kept over it. There was no dispute with accused. They were on talking terms. His father had not abused the accused when he reached at the place of ridge, his father was already injured and he was standing and never fell. He raised alarm but no one from the village came. He carried his father on Tempo alone and others came subsequently. In Sonepur he first went to Police Station and thereafter to the Hospital. He raised alarm but no one from the village came. He carried his father on Tempo alone and others came subsequently. In Sonepur he first went to Police Station and thereafter to the Hospital. His father had disclosed all the facts to the Sub Inspector of Police and thereafter in the Hajipur Hospital. He reached Hajipur Hospital at 2 O’ Clock and left for PMCH at 4 O’ Clock. 9. PW-4 Ram Savan Rai, has been tendered. 10. After hearing the parties and going through the material available on record and evidence adduced during trial, it is to be examined whether prosecution has been able to prove the place of occurrence. According to the FIR the place of occurrence is in front of the house of the informant. However, PW-1 has stated that place of occurrence was four laggi West of her house and PW-2 has stated that place of occurrence was ten laggi East of her house. The prosecution witnesses have also stated that no blood had fallen or spread or there was stained soil at the place of occurrence when the allegation is that deceased was hit by a spear on his stomach and as a consequence of which blood ought to have spread at the place of occurrence and investigating officer has also not been examined to prove the place of occurrence and on the basis of evidence of prosecution witnesses there is much contradiction with respect to place of occurrence as such prosecution has failed to establish the place of occurrence. 11. The time of occurrence is stated to be 12 O’ Clock. The three witnesses examined on behalf of prosecution claimed to be eye witness but in their cross-examination they have stated that they reached the place of occurrence after Chandravanshi Rai was inflicted bhala blow. PW-2 has denied presence of PW-1 and PW-3 at the time of occurrence. PW-3 stated that he took his father to the hospital and PW-1 and PW-2 have stated that they were also accompanying him but their clothes were not stained with blood and their presence at the place of occurrence at the time of occurrence becomes doubtful as such their claim to be eye witness of occurrence is not trustworthy. There are no independent witnesses to support the charge. All witnesses are interested witnesses belonging to same family. 12. There are no independent witnesses to support the charge. All witnesses are interested witnesses belonging to same family. 12. There are no independent witnesses produced on behalf of prosecution to establish the charge against appellant. All witnesses were family members of deceased and were highly interested witnesses. Even their statement with respect to place of occurrence and manner of occurrence is not consistent as such only on their statement without any corroboration the conviction of appellant cannot be sustained. 13. Although the Doctor who conducted the post mortem of the deceased was not examined by the prosecution as such contents of post mortem report could not be established but post mortem report of deceased was brought on record in which cause of death has been attributed to be Septicaemia (infection) and not any fresh bhala blow. Prosecution had deliberately withheld the post mortem report and the doctor who conducted the post mortem report was not examined as prosecution witness as cause of death as given in Post Mortem Report would have demolished the case of prosecution. Post Mortem Report has been brought on record by Appellant and since it is a public document prepared in discharge of public duty as such can be taken into consideration. 14. Police Officer who had recorded the fardbeyan of deceased and had instituted the formal FIR and conducted the investigation of the case was not examined by the prosecution as such fardbeyan and FIR could not be proved. 15. From the evidence on record, the prosecution has failed to establish charges against the appellant beyond reasonable doubt and appellant is entitled to benefit of doubt. Accordingly, conviction of appellant under Section 302 of the Indian Penal Code is set aside and appellant is acquitted of charge and since he is on bail, he is discharged from the liability of his bail bonds. The criminal appeal stands allowed.